Department of Transportation, Federal Aviation Administration (Activity) and Professional Airways Systems Specialists (Petitioner); Department of Transportation, Federal Aviation Administration, Airways Facility Sector, Tampa, Florida (Activity) and Professional Airways Systems Specialists (Petitioner)

 



[ v04 p722 ]
04:0722(97)RO
The decision of the Authority follows:


 4 FLRA No. 97
 
 DEPARTMENT OF TRANSPORTATION,
 FEDERAL AVIATION ADMINISTRATION
 (Activity)
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
 (Petitioner)
 
                                            Case No. 3-RO-41
 
 
 DEPARTMENT OF TRANSPORTATION,
 FEDERAL AVIATION ADMINISTRATION,
 AIRWAYS FACILITY SECTOR,
 TAMPA, FLORIDA
 (Activity)
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
 (Petitioner)
 
                                            Case No. 34-RO-27
 
                           ORDER REMANDING CASES
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S ORDER TRANSFERRING CASES IN ACCORDANCE WITH SECTIONS
 2429.1(B) AND 2429.4 OF THE AUTHORITY'S RULES AND REGULATIONS, WHICH WAS
 RECEIVED BY THE AUTHORITY ON SEPTEMBER 10, 1980.
 
    THE QUESTIONS POSED BY THE REGIONAL DIRECTOR IN HIS ORDER
 TRANSFERRING CASES ARE AS FOLLOWS:
 
    1.  WHICH OF THE AUTHORITY'S RULES AND REGULATIONS (I.E., INTERIM
 RULES OR FINAL RULES)
 
    APPLY TO THE CONTINUED PROCESSING OF THE RO PETITIONS IN CASES
 3-RO-41 AND 34-RO-27, BOTH
 
    FILED UNDER THE INTERIM RULES, UPON THE ISSUANCE OF THE CERTIFICATION
 OF CONSOLIDATION OF
 
    UNITS IN CASE 3-UC-9?
 
    2.  ASSUMING IN ITEM 1 ABOVE THAT THE FINAL RULES AND REGULATIONS
 APPLY, WHAT DATE(S)
 
    SHOULD BE UTILIZED TO CHECK THE RO PETITIONER'S SHOW OF INTEREST IN
 THE CONSOLIDATED UNIT?
 
    THE RECORD BEFORE THE AUTHORITY INDICATES THAT ON JULY 21, 1979, THE
 FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION (FASTA)
 AFFILIATED WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE)
 FILED A PETITION FOR CONSOLIDATION OF UNITS (3-CU-9).  IN ITS PETITION,
 FASTA/NAGE SEEKS TO CONSOLIDATE INTO ITS EXISTING NATIONWIDE UNIT OF
 SOME 8200 EMPLOYEES OF THE AIRWAYS FACILITIES DIVISION, LOCATED IN THE
 REGIONS OF THE FEDERAL AVIATION ADMINISTRATION (FAA), /1/ TWO ADDITIONAL
 UNITS FOR WHICH FASTA/NAGE HOLDS EXCLUSIVE RECOGNITION:  A UNIT OF 130
 GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES OF FAA'S AIRWAYS FACILITY
 SECTOR, TAMPA, FLORIDA, IN WHICH UNIT FASTA/NAGE WAS CERTIFIED IN
 FEBRUARY 1977;  AND A UNIT OF OVER 400 GENERAL SCHEDULE AND WAGE GRADE
 EMPLOYEES ASSIGNED TO THE EASTERN REGIONAL OFFICE, WHICH UNIT WAS
 CERTIFIED IN APRIL 1971.  THE RECORD ALSO SHOWS THAT A COLLECTIVE
 BARGAINING AGREEMENT WAS ENTERED INTO BY FASTA/NAGE AND THE FAA COVERING
 BOTH THE NATIONWIDE UNIT AND THE TAMPA UNIT ON DECEMBER 1, 1977, WITH A
 TWO-YEAR DURATION.  THE UNIT OF EASTERN REGIONAL EMPLOYEES WAS COVERED
 BY A SEPARATE COLLECTIVE BARGAINING AGREEMENT WHICH BECAME EFFECTIVE ON
 MAY 21, 1975, FOR A TWO-YEAR PERIOD, AND WHICH PROVIDED FOR AUTOMATIC
 RENEWAL ANNUALLY THEREAFTER.
 
    IN AUGUST 1979, THE PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS (PASS)
 FILED TIMELY REPRESENTATION PETITIONS IN THE NATIONWIDE AND TAMPA UNITS
 REPRESENTED BY FASTA/NAGE:  3-RO-41, SEEKING THE NATIONWIDE UNIT, WHICH
 WAS FILED ON AUGUST 21, 1979, DURING THE 60-105 DAY OPEN PERIOD PRIOR TO
 THE EXPIRATION OF THE AGREEMENT COVERING THE NATIONWIDE UNIT;  AND
 4-RO-27, SEEKING THE UNIT OF TAMPA, FLORIDA, EMPLOYEES ALSO COVERED BY
 THE NATIONWIDE AGREEMENT, WHICH PETITION WAS FILED ON AUGUST 20, 1979,
 DURING THE OPEN PERIOD OF THE AGREEMENT.  BY ORDER DATED AUGUST 19,
 1980, CASE NO. 4-RO-27 WAS TRANSFERRED FROM THE ATLANTA REGIONAL OFFICE
 TO THE WASHINGTON REGIONAL OFFICE AND DOCKETED AS CASE NO. 34-RO-27.
 
    THE ABOVE-MENTIONED UC PETITION WAS FILED UNDER THE AUTHORITY'S
 TRANSITION RULES, AND THE RO PETITIONS WERE FILED WHEN THE AUTEORITY'S
 INTERIM RULES WERE IN EFFECT.  /2/ SECTION 2422.3(J) OF THE INTERIM
 RULES, LIKE THE RELEVANT RULES AND PRACTICES UNDER THE TRANSITION RULES,
 /3/ PROVIDED AS FOLLOWS:
 
    SEC. 2422.3.  TIMELINESS OF PETITION
 
    (J) A PETITION FILED PURSUANT TO SEC. 2422.2(A) AND (B) SEEKING AN
 ELECTION IN ANY EXISTING
 
    EXCLUSIVELY RECOGNIZED UNIT COVERED BY A PENDING PETITION TO
 CONSOLIDATE EXISTING EXCLUSIVELY
 
    RECOGNIZED UNITS MUST BE FILED TIMELY IN ACCORDANCE WITH THE
 REQUIREMENTS SET FORTH IN THIS
 
    SECTION:  PROVIDED, HOWEVER, THAT SUCH PETITION WILL BE DISMISSED IF
 A CERTIFICATION ON
 
    CONSOLIDATION OF UNITS IS ISSUED.
 
    ON JANUARY 28, 1980, DURING THE PROCESSING OF THE UC PETITION, THE
 AUTHORITY'S FINAL RULES AND REGULATIONS (5 C.F.R. 2400.1-2471.12 (1980))
 TOOK EFFECT.  /4/ SECTION 2422.3(J) WAS REVISED THEREIN AND PROVIDES AS
 FOLLOWS:
 
    SEC. 2422.3.  TIMELINESS OF PETITION
 
    (J)(1) A PETITION FILED PURSUANT TO SEC. 2422.2(A) AND (B) SEEKING
 ELECTION IN ANY EXISTING
 
    EXCLUSIVELY RECOGNIZED UNIT COVERED BY A PENDING PETITION TO
 CONSOLIDATE EXISTING EXCLUSIVELY
 
    RECOGNIZED UNITS MUST BE FILED TIMELY IN ACCORDANCE WITH THE
 REQUIREMENTS SET FORTH IN THIS
 
    SECTION.  SUCH PETITION FILED PURSUANT TO SEC. 2422.2(A) AND (B) WILL
 BE HELD IN ABEYANCE
 
    PENDING THE PROCESSING OF THE PETITION TO CONSOLIDATE.
 
    (2) UPON THE ISSUANCE OF A CERTIFICATION ON CONSOLIDATION OF UNITS,
 THE PETITIONER UNDER
 
    SEC. 2422.2(A) AND (B) SHALL BE GIVEN THIRTY (30) DAYS FROM THE
 ISSUANCE OF THE CERTIFICATION
 
    TO SUBMIT A SUFFICIENT SHOWING OF INTEREST IN SUCH CONSOLIDATED UNIT.
  UPON THE TIMELY
 
    SUBMISSION OF SUCH ADEQUATE SHOWING OF INTEREST, PETITIONS FILED
 PURSUANT TO SEC. 2422.2(A)
 
    AND (B) WILL BE PROCESSED, AND AN APPROPRIATE CERTIFICATION WILL
 ISSUE.  UNDER THE FINAL RULES, THEREFORE, NO LONGER WILL TIMELY FILED RO
 PETITIONS BE AUTOMATICALLY DISMISSED UPON THE ISSUANCE OF A
 CERTIFICATION IN THE CONSOLIDATED UNIT, AS WAS REQUIRED UNDER THE
 INTERIM RULES.  INSTEAD, A PETITIONER WILL HAVE AN OPPORTUNITY TO
 COMPETE FOR THE CONSOLIDATED UNIT PROVIDING IT TIMELY SUBMITS A
 SUFFICIENT SHOWING OF INTEREST IN THE CONSOLIDATED UNIT.  WE TURN THEN
 TO THE QUESTIONS RAISED BY THE REGIONAL DIRECTOR.
 
    IN RESPONSE TO THE FIRST QUESTION, NAMELY:  WHETHER UPON THE ISSUANCE
 OF THE CERTIFICATION OF CONSOLIDATION OF UNITS IN CASE NO. 3-UC-9, THE
 INTERIM OR THE FINAL RULES APPLY TO THE RO PETITIONS FILED IN THE
 INSTANT CASES, THE AUTHORITY FINDS, FOR THE REASONS SET FORTH BELOW,
 THAT SECTION 2422.3(J) OF THE FINAL RULES IS APPLICABLE IN THE PRESENT
 CASES.
 
    AT THE OUTSET, IT MUST BE EMPHASIZED THAT WE ARE HERE CONCERNED WITH
 THE APPLICATION OF THE AUTHORITY'S FINAL PROCEDURAL RULES TO CASES
 PENDING WHEN THE RULES BECAME EFFECTIVE.  THE COURTS HAVE LONG
 RECOGNIZED THAT SUCH PROCEDURAL RULES APPLY TO PENDING ACTIONS, ABSENT
 ANY SHOWING OF HARDSHIP OR INJUSTICE IN PARTICULAR CASES.  FOR EXAMPLE,
 THE EMINENT JUDGE LEARNED HAND STATED IN THE UNITED WALL PAPER CASE:
 
    THERE CAN BE NO DOUBT THAT THE AMENDMENT (TO COURT RULES) APPLIED TO
 PENDING CASES
 
    . . . .  IT IS THE GENERAL DOCTRINE THAT AMENDMENTS TOUCHING ONLY
 PROCEDURE APPLY TO PENDING ACTIONS . . . (CITATIONS OMITTED.) UNITED
 WALL PAPER FACTORIES, INC. V. HODGES, 70 F2D 243, 244 (2D CIR. 1934).
 
    SEE ALSO, E.G., LANG V. BERGER, 427 F.SUPP. 204, 213 (S.D.N.Y.
 1977);  AND KEYSTONE MOTOR EXPRESS, INC. V. U.S., 228 F.SUPP. 793,
 799-800 (THREE -JUDGE COURT) (S.D.W.VA.  1964).
 
    THIS PRINCIPLE WAS ALSO ADOPTED BY THE U.S. SUPREME COURT WHEN, IN
 ITS ORDER APPROVING THE NEW FEDERAL RULES OF CIVIL PROCEDURE, THE COURT
 STATED (383 U.S. 1031 (1966)):
 
    . . . THE FOREGOING AMENDMENTS AND ADDITIONS TO THE RULES OF CIVIL
 PROCEDURE SHALL TAKE
 
    EFFECT ON JULY 1, 1966, AND SHALL GOVERN ALL PROCEEDINGS IN ACTIONS
 BROUGHT THEREAFTER AND
 
    ALSO IN ALL FURTHER PROCEEDINGS IN ACTIONS THEN PENDING, EXCEPT TO
 THE EXTENT THAT IN THE
 
    OPINION OF THE COURT THEIR APPLICATION IN A PARTICULAR ACTION THEN
 PENDING WOULD NOT BE
 
    FEASIBLE OR WOULD WORK INJUSTICE, IN WHICH EVENT THE FORMER PROCEDURE
 APPLIES.  /5/
 
    CERTAINLY IT WAS THE GENERAL INTENT OF THE AUTHORITY, WHEN IT ADOPTED
 THE FINAL RULES, TO APPLY THESE RULES TO ALL PENDING ACTIONS, ABSENT A
 SHOWING OF MATERIAL HARDSHIP OR INJUSTICE IN A PARTICULAR CASE.  SEVERAL
 THOUSAND CASES WERE PENDING BEFORE THE AUTHORITY AT VARIOUS LEVELS OF
 OPERATIONS IN JANUARY 1980 WHEN THE FINAL RULES BECAME EFFECTIVE, AND AN
 AVERAGE OF OVER 400 NEW CASES WERE BEING FILED WITH AND PROCESSED BY THE
 AUTHORITY EACH MONTH.  IN THESE CIRCUMSTANCES, ANY CONTRARY INTENT TO
 APPLY THE INTERIM RULES TO PENDING CASES AND THE FINAL RULES TO NEW
 CASES, EVEN THOUGH THE CASES IN MANY INSTANCES WERE BEING PROCESSED
 CONCURRENTLY AT THE SAME PROCEDURAL LEVELS, OR TO ATTEMPT IN SOME
 UNDEFINED MANNER SELECTIVELY TO APPLY THE INTERIM RULES IN PART AND THE
 FINAL RULES IN PART TO ALL PENDING CASES, AS THE DISSENT OCCASIONALLY
 SEEMS TO SUGGEST, WOULD HAVE RESULTED IN ADMINISTRATIVE CHAOS.
 
    MORE PARTICULARLY WITH RESPECT TO THE INTENDED APPLICATION OF SECTION
 2422.3(J) OF THE FINAL RULES, THIS SECTION WAS LIKEWISE PLAINLY INTENDED
 TO APPLY TO PENDING CASES.  SUCH CONCLUSION IS READILY APPARENT FROM THE
 REASONS FOR THE CHANGE IN SECTION 2422.3(J) OF THE INTERIM RULES,
 EFFECTED BY THE FINAL RULES, AS EXPRESSLY STATED IN THE PREAMBLE TO THE
 FINAL RULES:
 
    SECTION 2422.3(J) HAS BEEN REVISED TO PROVIDE THAT WHERE A TIMELY
 PETITION IS FILED RAISING
 
    A QUESTION CONCERNING REPRESENTATION (QCR) IN A UNIT WHICH IS
 INCLUDED AS PART OF A PENDING
 
    UNIT CONSOLIDATION (UC) PETITION, THE QCR PETITION WILL NO LONGER BE
 AUTOMATICALLY DISMISSED
 
    ONCE THE CONSOLIDATED UNIT IS CERTIFIED.  INSTEAD, UPON THE ISSUANCE
 OF A CERTIFICATION ON
 
    CONSOLIDATION OF UNITS, THE QCR PETITIONER WILL BE GIVEN THIRTY (30)
 DAYS TO SECURE A
 
    SUFFICIENT SHOWING OF INTEREST IN THE CONSOLIDATED UNIT AND IN THE
 EVENT SUCH SHOWING OF
 
    INTEREST IS SECURED, WILL BE GIVEN AN OPPORTUNITY TO OBTAIN THE
 APPROPRIATE CERTIFICATION
 
    PURSUANT TO AN ELECTION.  THIS REVISION IS INTENDED TO AVOID
 UNFAIRNESS TO PETITIONERS WHO
 
    HAVE FILED TIMELY AND OTHERWISE ADEQUATELY SUPPORTED ELECTION
 PETITIONS SUBSEQUENT TO THE
 
    PETITION FOR CONSOLIDATION OF UNITS AND ALSO WILL PERMIT PENDING
 CONSOLIDATION PETITIONS TO BE
 
    PROCESSED WHERE THE CONSOLIDATED UNIT SOUGHT IS DETERMINED TO BE
 APPROPRIATE.  PART-BY-PART
 
    ANALYSIS OF COMMENTS AND CHANGES, 45 F.R. 3482-83 (1980).
 
    OBVIOUSLY, THE AUTHORITY DID NOT INTEND TO MAINTAIN THE UNFAIRNESS OF
 SECTION 2422.3(J) OF THE INTERIM RULES BY CONTINUING ITS APPLICATION IN
 PENDING CASES AFTER THE FINAL RULES BECAME AFFECTIVE.  MORE PRECISELY,
 IT CANNOT BE SERIOUSLY ARGUED THAT THE AUTHORITY INTENDED TO CONTINUE
 APPLYING THE PROCEDURES OF THE INTERIM RULES TO THE INSTANT CASES WHERE,
 AS SET FORTH BELOW, THE VERY UNFAIRNESS WHICH PROMPTED THE REVISION OF
 SECTION 2422.3(J) OF THE INTERIM RULES IS SO GRAPHICALLY DEMONSTRATED.
 
    HERE, AS ALREADY MENTIONED, FASTA/NAGE WAS CERTIFIED AS THE EXCLUSIVE
 REPRESENTATIVE OF THE TAMPA UNIT IN FEBRUARY 1977 AND AS THE EXCLUSIVE
 REPRESENTATIVE OF THE CONSOLIDATED NATIONWIDE UNIT IN APRIL 1977.  /6/
 THESE UNITS WERE THEREAFTER COVERED BY A TWO-YEAR AGREEMENT, EXTENDING
 FROM DECEMBER 1977 TO DECEMBER 1979.  PASS FILED ITS REPRESENTATION
 PETITIONS IN THE PRESENT CASES, SUPPORTED BY AN ADEQUATE SHOWING OF
 INTEREST (SEE N.12, INFRA), DURING THE OPEN PERIOD OF THE 1977
 AGREEMENT.  AS IS EVIDENT, A CERTIFICATION AND CONTRACT BAR EXISTED FROM
 EARLY 1917 TO DECEMBER 1979 IN THE NATIONWIDE AND TAMPA UNITS.  YET, THE
 APPLICATION OF SECTION 2422.3(J) OF THE INTERIM RULES WOULD SERVE TO
 PREVENT ANY NEW CHOICE BY THE EMPLOYEES OF THEIR BARGAINING
 REPRESENTATIVE FOR AN ADDITIONAL PERIOD OF UP TO FOUR YEARS (I.E.,
 ONE-YEAR CONSOLIDATION CERTIFICATION BAR AND THREE-YEAR CONTRACT BAR).
 IN OTHER WORDS, THE CONSOLIDATED UNIT EMPLOYEES WOULD BE DENIED ANY
 OPPORTUNITY WHATSOEVER FOR A FREE CHOICE OF BARGAINING REPRESENTATIVES
 DURING A PERIOD TOTALLING UP TO SEVEN YEARS, BASED ON THE APPLICATION OF
 SECTION 2422.3(J) OF THE INTERIM RULES TO THE RO PETITIONS.
 
    AS ALREADY MENTIONED, IT WAS JUST SUCH UNFAIRNESS WHICH PROMPTED THE
 CHANGE OF SECTION 2422.3(J) OF THE INTERIM RULES, AND THE AUTHORITY
 PLAINLY DID NOT INTEND THAT THIS INEQUITY CONTINUE AFTER THE ADOPTION OF
 THE FINAL RULES.
 
    IT IS SIGNIFICANT THAT SECTION 7134 OF THE STATUTE REQUIRES THE
 AUTHORITY TO PRESCRIBE RULES AND REGULATIONS TO CARRY OUT THE STATUTORY
 PROVISIONS APPLICABLE TO THE AUTHORITY.  IN THIS REGARD, SECTION
 7105(A)(2)(A) OF THE STATUTE ESTABLISHES, AMONG THE POWER AND DUTIES OF
 THE AUTHORITY, THE DETERMINATION OF "THE APPROPRIATENESS OF UNITS FOR
 LABOR ORGANIZATION REPRESENTATION UNDER SECTION 7112" OF THE STATUTE.
 /7/ IN ACCORDANCE WITH THE FOREGOING REQUIREMENTS, THE FINAL RULES AND,
 MORE PARTICULARLY, SECTION 2422.3(J) THEREOF, WERE PROMULGATED.  THUS,
 THE ISSUANCE OF THE AMENDED RULES, INCLUDING SECTION 2422.3(J), WAS
 CLEARLY WITHIN THE STATUTORY RESPONSIBILITY OF THE AUTHORITY.
 
    IT IS ALSO SIGNIFICANT THAT THE CHANGE OF SECTION 2422.3(J) OF THE
 INTERIM RULES IMPLEMENTED THE EXPRESS FINDING WHICH PROMPTED THE
 ADOPTION OF THE STATUTE BY CONGRESS AND THE EXPRESS LANGUAGE IN RELATED
 PROVISIONS OF THE STATUTE. AS STATED IN SECTION 7101(A)(1) CONCERNING
 THE "FINDINGS AND PURPOSE" OF THE STATUTE:
 
    (A) THE CONGRESS FINDS THAT--
 
    (1) EXPERIENCE IN BOTH PRIVATE AND PUBLIC EMPLOYMENT INDICATES THAT
 THE STATUTORY
 
    PROTECTION OF THE RIGHT OF EMPLOYEES TO ORGANIZE, BARGAIN
 COLLECTIVELY, AND PARTICIPATE
 
    THROUGH LABOR ORGANIZATIONS OF THEIR OWN CHOOSING IN DECISION WHICH
 AFFECT THEM--
 
    (A) SAFEGUARDS THE PUBLIC INTEREST.
 
    (B) CONTRIBUTES TO THE EFFECTIVE CONDUCT OF PUBLIC BUSINESS, AND
 
    (C) FACILITATES AND ENCOURAGES THE AMICABLE SETTLEMENTS OF DISPUTES
 BETWEEN EMPLOYEES AND
 
    THEIR EMPLOYERS INVOLVING CONDITIONS OF EMPLOYMENT;  . . .  LIKEWISE,
 AS STATED FOR EXAMPLE IN SECTION 7102 OF THE STATUTE;
 
    SEC. 7102.  EMPLOYEES' RIGHTS
 
    EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
 ORGANIZATION, OR TO
 
    REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
 REPRISAL, AND EACH
 
    EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT.  EXCEPT AS
 OTHERWISE PROVIDED UNDER
 
    THIS CHAPTER, SUCH RIGHT INCLUDES THE RIGHT--
 
    (1) TO ACT FOR A LABOR ORGANIZATION IN THE CAPACITY OF A
 REPRESENTATIVE AND THE RIGHT, IN
 
    THAT CAPACITY, TO PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO
 HEADS OF AGENCIES AND OTHER
 
    OFFICIALS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE CONGRESS, OR
 OTHER APPROPRIATE
 
    AUTHORITIES, AND
 
    (2) TO ENGAGE IN COLLECTIVE BARGAINING WITH RESPECT TO CONDITIONS OF
 EMPLOYMENT THROUGH
 
    REPRESENTATIVES CHOSEN BY EMPLOYEES UNDER THIS CHAPTER.  THE
 AUTHORITY'S AMENDMENT OF SECTION 2422.3(J) OF THE INTERIM RULES TO
 SANCTION AN ELECTION IN A UNIT CONSOLIDATION CASE, WHEN AN INTERVENING
 UNION SUBMITS A TIMELY PETITION SUPPORTED BY AN ADEQUATE SHOWING OF
 INTEREST IN THAT UNIT, PLAINLY EFFECTUATES THIS DEMOCRATIC PRINCIPLE OF
 FREEDOM OF CHOICE SOUGHT TO BE ACCOMPLISHED BY THE STATUTE.  THUS, THE
 IMMEDIATE APPLICATION OF THE CHANGE TO PENDING CASES IS CONSISTENT WITH
 AND DICTATED BY THE DESIGN AND PURPOSES OF THE STATUTE.  /8/
 
    APART FROM THE FOREGOING, FASTA/NAGE HAS FAILED TO DEMONSTRATE IN THE
 RECORD THAT ANY MATERIAL HARDSHIP OR INJUSTICE WOULD RESULT FROM
 APPLYING THE CHANGE IN SECTION 2422.3(J) TO THE INSTANT CASES.  THE
 RULES UNDER WHICH FASTA/NAGE FILED ITS UNIT CONSOLIDATION PETITION WERE
 CLEARLY DESIGNATED AS "TRANSITION" RULES.  LIKEWISE, THE INTERIM RULES,
 INCLUDING SECTION 2422.3(J) THEREOF, UNDER WHICH THE RO PETITIONS WERE
 FILED AND UPON WHICH FASTA/NAGE SPECIFICALLY RELIES, WERE PLAINLY
 DESIGNATED AS "INTERIM" IN NATURE AND WERE SET TO EXPIRE NO LATER THAN
 SIC MONTHS AFTER ISSUANCE.  MOREOVER, AS ALREADY MENTIONED, COMMENTS ON
 THE INTERIM RULES WERE EXPRESSLY SOLICITED FROM INTERESTED PERSONS BY
 THE AUTHORITY.  IN OTHER WORDS, THE ENTIRE PROCESS OF TRANSITION AND
 INTERIM RULES PRESUPPOSED THAT CHANGES WOULD LIKELY BE EFFECTED BY THE
 AUTHORITY IN ITS FINAL RULES AND, AS DEMONSTRATED BY THE PREAMBLE TO THE
 FINAL RULES, NUMEROUS CHANGES IN THE PREVIOUSLY-EXISTING RULES AND
 PRACTICES WERE IN FACT MADE BY THE FINAL RULES OF THE AUTHORITY (45
 FED.REG. 3482-86).  THUS, AMENDMENTS TO THE INTERIM RULES WERE HARDLY
 "SURPRISES" SUDDENLY IMPOSED ON UNSUSPECTING PARTIES TO THESE
 PROCEEDINGS.  /9/ FURTHER, WHILE PASS FILED COMMENTS URGING CHANGES IN
 THE INTERIM RULES RELATED TO UNIT CONSOLIDATION, FASTA/NAGE DID NOT FILE
 ANY SUCH COMMENTS, AND, ALTHOUGH ADMITTEDLY AWARE THAT THE FINAL RULES
 MIGHT BE APPLIED TO PENDING CASES, /10/ FASTA/NAGE DID NOT SEEK ANY
 RECONSIDERATION OF THE SUBJECT AMENDMENT IN SECTION 2422.3(J) OF THE
 FINAL RULES.  FINALLY, ALTHOUGH FASTA/NAGE ADVERTS TO ADDITIONAL
 RESOURCES WHICH MAY BE REQUIRED IF THE FINAL RULES ARE HERE APPLIED, THE
 EXPENDITURE OF SUCH RESOURCES FALLS UPON BOTH FASTA/NAGE AND PASS AND IS
 THE RESULT OF THE FREEDOM OF CHOICE AFFORDED EMPLOYEES TO SELECT,
 THROUGH A DEMOCRATIC ELECTION, THEIR BARGAINING REPRESENTATIVE AS
 PROVIDED FOR IN THE STATUTE.  THE EXPENDITURE OF SUCH RESOURCES FAILS TO
 REFLECT ANY SIGNIFICANT HARDSHIP OR INJUSTICE RESULTING FROM APPLICATION
 OF THE FINAL RULES IN THE INSTANT PROCEEDINGS.
 
    TO REPEAT, THEREFORE, WE FIND THAT, BASED ON THE PRINCIPLES AND
 CIRCUMSTANCES DISCUSSED ABOVE, SECTION 2422.3(J) OF THE FINAL RULES IS
 APPLICABLE TO THE PRESENT CASES.  /11/
 
    THE SECOND QUESTION RAISED BY THE REGIONAL DIRECTOR CONCERNS PASS'
 SHOWING OF INTEREST.  AS NOTED ABOVE, SECTION 2422.3(J) OF THE FINAL
 RULES PROVIDES THAT, UPON ISSUANCE OF A CERTIFICATION ON CONSOLIDATION
 OF UNITS, THE PETITIONER WILL HAVE THIRTY DAYS WITHIN WHICH TO SUBMIT A
 SUFFICIENT SHOWING OF INTEREST IN THE CONSOLIDATED UNIT.  IN OUR VIEW,
 THE SHOWING OF INTEREST ORIGINALLY SUBMITTED BY PASS IN BOTH 3-RO-41 AND
 4-RO-27 REMAINS CURRENT AND SHOULD BE UTILIZED TO DETERMINE WHETHER PASS
 NOW HAS A SUFFICIENT SHOWING OF INTEREST IN THE CONSOLIDATED UNIT.  /12/
 
    ACCORDINGLY, THESE CASES ARE BEING REMANDED TO THE REGIONAL DIRECTOR
 FOR ACTION CONSISTENT WITH OUR DETERMINATION HEREIN.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 11, 1980
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    RONALD W. HAUGHTON, CHAIRMAN DISSENTING:
 
    I CANNOT AGREE WITH MY COLLEAGUES THAT SECTION 2422.3(J) OF THE
 AUTHORITY'S FINAL RULES SHOULD BE APPLIED RETROACTIVELY TO THE PRESENT
 CASES.
 
    AS FOUND BY THE MAJORITY, THE US PETITION WAS FILED UNDER THE
 AUTHORITY'S TRANSITION RULES, AND THE RO PETITIONS WERE FILED WHEN THE
 AUTHORITY'S INTERIM RULES WERE IN EFFECT. SECTION 2422.3(J) OF THE
 INTERIM RULES, SIMILAR TO THE RELEVANT RULES AND PRACTICES UNDER THE
 TRANSITION RULES, PROVIDED AS FOLLOWS:
 
    SEC. 2422.3.  TIMELINESS OF PETITION
 
    (J) A PETITION FILED PURSUANT TO SEC. 2422.2(A) AND (B) SEEKING AN
 ELECTION IN ANY EXISTING
 
    EXCLUSIVELY RECOGNIZED UNIT COVERED BY A PENDING PETITION TO
 CONSOLIDATE EXISTING EXCLUSIVELY
 
    RECOGNIZED UNITS MUST BE FILED TIMELY IN ACCORDANCE WITH THE
 REQUIREMENTS SET FORTH IN THIS
 
    SECTION:  PROVIDED, HOWEVER, THAT SUCH PETITION WILL BE DISMISSED IF
 A CERTIFICATION ON
 
    CONSOLIDATION OF UNITS IS ISSUED.  THUS, UNDER THE AUTHORITY'S
 INTERIM REGULATIONS, IF A TIMELY REPRESENTATION PETITION WERE FILED
 SEEKING AN ELECTION IN ANY UNIT PREVIOUSLY INCLUDED WITHIN A PENDING
 PETITION FOR UNIT CONSOLIDATION, THE REPRESENTATION PETITION WOULD BE
 HELD IN ABEYANCE DURING THE PROCESSING OF THE UC PETITION AND, IF A
 CERTIFICATION ON THE CONSOLIDATED UNIT WERE THEREAFTER ISSUED, THE
 REPRESENTATION PETITION WOULD BE DISMISSED.  THE PROCEDURE EMBODIED IN
 SECTION 2422.3(J) OF THE AUTHORITY'S INTERIM REGULATIONS WAS CONSISTENT
 WITH THE POLICY ADOPTED BY THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS TO APPLY IN THESE CIRCUMSTANCES UNDER
 EXECUTIVE ORDER 11491, AS AMENDED /13/ WHICH POLICY WAS IN FACT APPLIED
 BY THE ASSISTANT SECRETARY UNDER THE EXECUTIVE ORDER TO THE SAME PARTIES
 IN CIRCUMSTANCES SIMILAR TO THOSE INVOLVED HEREIN.  /14/
 
    SUBSEQUENT TO THE FILING OF THE UC PETITION IN 3-UC-9 AND THE RO
 PETITIONS INVOLVED HEREIN, AND DURING THE PROCESSING OF THE UC PETITION,
 THE AUTHORITY ISSUED ITS FINAL RULES AND REGULATIONS TO BECOME EFFECTIVE
 ON JANUARY 28, 1980 (5 CFR 2400.1-2471.12 (1980)).  SECTION 2422.3(J)
 WAS REVISED THEREIN TO PROVIDE, ESSENTIALLY, THAT TIMELY FILED
 REPRESENTATION PETITIONS WILL NO LONGER BE AUTOMATICALLY DISMISSED UPON
 THE ISSUANCE OF A CERTIFICATION IN A CONSOLIDATED UNIT, BUT THAT THE
 PETITIONER WILL BE GIVEN 30 DAYS THEREFROM TO SUBMIT A SUFFICIENT
 SHOWING OF INTEREST IN SUCH CONSOLIDATED UNIT AND, IF SUCCESSFUL, THE
 PETITION(S) WILL BE PROCESSED.
 
    NONE OF THE PARTIES HAS DISPUTED THE VALIDITY OF THE AUTHORITY'S
 AMENDMENT OF SECTION 2422.3(J), AND NEITHER DOES THE UNDERSIGNED.  THE
 QUESTION NOW BEFORE THE AUTHORITY IS WHETHER OR NOT THE NEW RULE SHOULD
 BE APPLIED RETROACTIVELY TO THE UC AND RO PETITIONS WHICH WERE FILED
 UNDER THE TRANSITION AND INTERIM RULES, RESPECTIVELY.  /15/
 
    THE COURTS HAVE FREQUENTLY INDICATED THAT THE LAW SHOULD AVOID
 RETROACTIVITY.  SEE MACEREN V. DISTRICT DIRECTOR, IMMIGRATION AND
 NATURALIZATION SERVICE, LOS ANGELES, CALIFORNIA, 509 F.2D 934, 939 (9TH
 CIR. 1974).  SEE ALSO ADDISON V. HOLLY HILL FRUIT PRODUCTS, INC., 322
 U.S. CORPORATION, 332 U.S. 194, 203 (1947).  STRICT SCRUTINY OF
 RETROACTIVE MEASURES HAS EXTENDED TO THOSE PROMULGATED BY LEGISLATURES
 AND ADMINISTRATIVE AGENCIES ALIKE.  DAUGHTERS OF MIRIAM CENTER FOR THE
 AGED V. MATHEWS, 590 F.2D 1250, 1259 (3RD CIR. 1978), AND CASES CITED.
 ACCORDINGLY, THE COURTS HAVE DECLINED TO ENFORCE ADMINISTRATIVE ORDERS
 WHEN, IN THEIR VIEW, THE INEQUITY OF RETROACTIVE APPLICATION HAS NOT
 BEEN COUNTER-BALANCED BY SIGNIFICANT STATUTORY INTERESTS.  SEE, E.G.,
 MACEREN AND DAUGHTERS OF MIRIAM CENTER FOR THE AGED, SUPRA.  SEE ALSO
 GREENE V. U.S., 376 U.S.  149, 160 (1964), AND RETAIL, WHOLESALE AND
 DEPARTMENT STORE UNION, AFL-CIO V. NLRB, 466 F.2D 380 (D.C. CIR. 1972).
 
    IS THE INEQUITY OF RETROACTIVE APPLICATION IN THIS PARTICULAR CASE
 COUNTER-BALANCED BY A SIGNIFICANT STATUTORY INTEREST?  WHAT STATUTORY
 PROVISION REQUIRES AN ABRUPT DEPARTURE FROM AN ESTABLISHED PROCEDURE
 WHICH ALL PARTIES HAD A RIGHT TO EXPECT NOT ONLY ON THE BASIS OF THE
 INTERIM RULE WHICH WAS IN EFFECT AT THE TIME THE REPRESENTATION
 PETITIONS WERE FILED BUT ON THE BASIS OF A LONG HISTORY UNDER THE
 EXECUTIVE ORDER AS WELL AS PREVIOUS CASES INVOLVING THE SAME PARTIES IN
 WHICH THE RULE WAS APPLIED?  GIVEN THIS SITUATION, IT IS UNDERSTANDABLE
 THAT FASTA/NAGE DID NOT SEEK ANY RECONSIDERATION OF THE SUBJECT
 AMENDMENT AS NOTED BY THE MAJORITY.  THERE WAS NOTHING IN SUCH AMENDMENT
 TO SUGGEST THAT RETROACTIVE APPLICATION TO CASES ALREADY FILED WAS
 INTENDED.  IF SUCH A PROVISION HAD BEEN INCLUDED IN THE FINAL
 REGULATION, I WOULD HAVE REGARDED IT AS CLEAR EVIDENCE OF INTENT.  NO
 SUCH INTENT WAS EXPRESSED IN THE FINAL REGULATION AS ADOPTED.
 
    ADMITTEDLY, SECTION 2422.3(J) OF THE INTERIM RULES WAS AMENDED TO
 ELIMINATE THE UNFAIRNESS OF ALLOWING A UNIT CONSOLIDATION CERTIFICATION
 TO PREVENT THE PROCESSING OF A TIMELY FILED RO PETITION SUPPORTED BY AN
 ADEQUATE SHOWING OF INTEREST.  BUT THE UNFAIRNESS WHICH PROMPTED SUCH A
 CHANGE IN THE RULE DID NOT REPRESENT A BASIC INCONSISTENCY OR CONFLICT
 WITH THE STATUTORY DESIGN.  IT REPRESENTED AN EXERCISE OF DISCRETION
 UNDER SECTION 1112(D) OF THE STATUTE AND DOES NOT MANDATE ACTION BY THE
 AUTHORITY WHICH WOULD SUBVERT RELIANCE BY THE PARTIES ON
 WELL-ESTABLISHED POLICIES WHICH HAD PREVAILED UNDER BOTH THE EXECUTIVE
 ORDER AND THE STATUTE.  INDEED, THE POLICY IN QUESTION WAS EXPLICITLY
 EXPRESSED BY THE ASSISTANT SECRETARY'S MANUAL AS EARLY AS 1976 (SEE
 N.13, ABOVE).
 
    IT IS A STATUTORY PRINCIPLE THAT EMPLOYEES BE PERMITTED TO SELECT THE
 LABOR ORGANIZATION OF THEIR OWN CHOICE THROUGH DEMOCRATIC ELECTIONS.
 HOWEVER, EMPLOYEES DO NOT HAVE THE RIGHT UNDER THE STATUTE TO SECURE
 ELECTIONS ANY TIME THEY DESIRE.  THE MATTER OF ELECTION AND
 CERTIFICATION BARS OF THE SORT CONTAINED IN SECTION 2422.3(J) OF THE
 INTERIM REGULATIONS IS A WELL-ESTABLISHED PRINCIPLE IN LABOR LAW
 GENERALLY, AND IN THE STATUTE IN PARTICULAR (SEE SECTION 2422.3 OF THE
 FINAL RULES AND REGULATIONS).  AND MOST IMPORTANTLY, WITH REGARD TO THE
 CONSOLIDATION OF UNITS, SECTION 7112(D) OF THE STATUTE PROVIDES THAT
 ELECTIONS NEED NOT BE HELD IN ALL INSTANCES.  AS STATED THEREIN:
 
    (D) TWO OR MORE UNITS WHICH ARE IN AN AGENCY AND FOR WHICH A LABOR
 ORGANIZATION IS THE
 
    EXCLUSIVE REPRESENTATIVE MAY, UPON PETITION BY THE AGENCY OR LABOR
 ORGANIZATION, BE
 
    CONSOLIDATED WITH OR WITHOUT AN ELECTION INTO A SINGLE LARGER UNIT IF
 THE AUTHORITY CONSIDERS
 
    THE LARGER UNIT TO BE APPROPRIATE.  THE AUTHORITY SHALL CERTIFY THE
 LABOR ORGANIZATION AS THE
 
    EXCLUSIVE REPRESENTATIVE OF THE NEW LARGER UNIT.
 
    WHILE I AGREE WITH THE SUBSTANCE OF THE NEW RULE, AS IT WOULD APPLY
 TO CASES FILED AFTER ITS ADOPTION, IN MY VIEW OF THE FACTS AND
 CIRCUMSTANCES PRESENT IN THE INSTANT CASES, THE INEQUITY OF RETROACTIVE
 APPLICATION IS NOT COUNTER-BALANCED BY ANY OVERRIDING STATUTORY
 INTEREST.
 
    THE MAJORITY ASSERTS THAT FASTA/NAGE FAILED TO DEMONSTRATE THAT ANY
 MATERIAL HARDSHIP OR INJUSTICE WOULD RESULT FROM APPLYING THE NEW RULE
 TO THE INSTANT CASES.  THERE IS NO QUESTION THOUGH, THAT THE NEW RULE
 INVOLVES A SUBSTANTIAL CHANGE FROM THAT WHICH ALL PARTIES HAD REASON TO
 EXPECT.  THERE IS ALSO NO QUESTION THAT APPLICATION OF THE NEW RULE TO
 THE INSTANT CASES WILL PLACE AN ADDITIONAL BURDEN ON FASTA/NAGE AND THAT
 IT DISRUPTS THE GROUND RULES UPON WHICH FASTA/NAGE HAD RELIED IN THE
 EXERCISE OF ITS REPRESENTATIONAL RESPONSIBILITIES.  IN MY OPINION,
 FAIRNESS AND EQUITY REQUIRE THAT A CHANGE OF SUCH SUBSTANTIAL
 PROPORTIONS AS HEREIN INVOLVED SHOULD BE APPLIED PROSPECTIVELY TO AFFORD
 PARTIES SUFFICIENT TIME UPON WHICH TO PREDICATE THEIR ACTIONS AND NOT
 RETROACTIVELY TO CASES WHICH ALREADY HAVE BEEN FILED IN THE RELIANCE
 UPON THE POLICY AND REGULATION IN EFFECT AT THE TIME OF FILING.
 
    IN SUMMARY, THERE IS NOTHING IN THE STATUTE, THE LEGISLATIVE HISTORY,
 OR THE STATUTORY PURPOSES WHICH REQUIRES OR EVEN SUGGESTS THE
 RETROACTIVE APPLICATION OF THE NEW RULE INVOLVED HEREIN WHICH
 SIGNIFICANTLY DEPARTS FROM LONG-ESTABLISHED POLICY EFFECTIVE BEFORE AND
 AFTER THE DATE OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.  TO NOW HOLD THE PARTIES TO A REVISED POLICY WHICH WAS
 ESTABLISHED AND BECAME EFFECTIVE AFTER THE INSTANT PETITIONS WERE FILED
 AND WHILE THE UC PETITION WAS BEING PROCESSED, AND WHICH CONTAINED NO
 WARNING OF POSSIBLE RETROACTIVE APPLICATION, WOULD CREATE UNDUE SURPRISE
 AND WORK AN UNFAIRNESS ON FASTA/NAGE.  MOREOVER, A DETERMINATION THAT
 SECTION 2422.3(J) OF THE FINAL RULES AND REGULATIONS WILL APPLY TO
 PETITIONS FILED AFTER JANUARY 28, 1980, THE EFFECTIVE DATE OF SUCH RULES
 AND REGULATIONS, WILL ALLOW ALL PARTIES TO BE FULLY AWARE OF THEIR
 RIGHTS AND OBLIGATIONS IN SIMILAR PROCEEDINGS.
 
    DATED, WASHINGTON, D.C., DECEMBER 11, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE ORDER REMANDING CASES OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED BELOW:
 
                          E. V. CURRAN, DIRECTOR
 
                              LABOR RELATIONS
 
                       DEPARTMENT OF TRANSPORTATION
 
                      FEDERAL AVIATION ADMINISTRATION
 
                      800 INDEPENDENCE AVENUE, S.W.
 
                          WASHINGTON, D.C. 20591
 
                            SANDRA E. DOMANICK
 
                        LABOR RELATIONS SPECIALIST
 
                         OFFICE OF LABOR RELATIONS
 
                      FEDERAL AVIATION ADMINISTRATION
 
                      800 INDEPENDENCE AVENUE, S.W.
 
                          WASHINGTON, D.C. 20591
 
                         CHARLES R. BOTH, ESQUIRE
 
                                 SUITE 800
 
                      1140 CONNECTICUT AVENUE, N.W.
 
                          WASHINGTON, D.C. 20036
 
                    MR. HOWARD E. JOHANNSSEN, PRESIDENT
 
                       PROFESSIONAL AIRWAYS SYSTEMS
 
                                SPECIALISTS
 
                                 SUITE 820
 
                      444 NORTH CAPITAL STREET, N.W.
 
                          WASHINGTON, D.C. 20001
 
                         PAUL E. TRAYERS, ESQUIRE
 
                         ASSOCIATE GENERAL COUNSEL
 
                       FEDERAL AVIATION SCIENCE AND
 
                         TECHNOLOGICAL ASSOCIATION
 
                       2139 WISCONSIN AVENUE, N.W.
 
                          WASHINGTON, D.C. 20007
 
                            ALEXANDER T. GRAHAM
 
                        WASHINGTON REGIONAL OFFICE
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                     1133 15TH STREET, N.W., SUITE 300
 
                          WASHINGTON, D.C. 20005
 
                           MR. SEYMOUR X. ALSHER
 
                             REGIONAL DIRECTOR
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                       1776 PEACHTREE STREET, N.W.
 
                           SUITE 501, NORTH WING
 
                          ATLANTA, GEORGIA 30309
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ FASTA/NAGE WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE IN THE
 CONSOLIDATED NATIONWIDE UNIT IN APRIL 1977.
 
    /2/ THE TRANSITION RULES WERE ISSUED EFFECTIVE JANUARY 1, 1979 (44
 FED.REG. 5) AND CONTINUED THEREAFTER, UNDER SECTION 7135(B) OF THE
 STATUTE, UNTIL JULY 30, 1979.  ON THE LATTER DATE, THE INTERIM RULES
 BECAME EFFECTIVE, WHICH RULES WERE SET TO EXPIRE ON JANUARY 31, 1980, OR
 UPON THE EFFECTIVE DATE OF FINAL RULES AND REGULATIONS ISSUED PRIOR TO
 JANUARY 31, 1980 (44 FED.REG. 44740).  IN THE PREAMBLE TO THE INTERIM
 RULES, THE AUTHORITY INVITED COMMENTS THEREON BY INTERESTED LABOR
 ORGANIZATIONS, AGENCIES AND OTHER PERSONS (ID.).
 
    /3/ SECTION 2400.2 OF THE TRANSITION RULES, AS HERE RELEVANT,
 CONTINUED THE RULES OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER E.O.  11491, AS AMENDED.  FOR THE
 RELEVANT RULE OF THE ASSISTANT SECRETARY, SEE 29 C.F.R. 202.3(I) (1979);
  FOR THE PRACTICES OF THE ASSISTANT SECRETARY THEREUNDER, SEE BOOK 5,
 CHAP. 19, SEC. 3, PAR.  119.032 OF ASSISTANT SECRETARY'S MANUAL ON
 FEDERAL LABOR-MANAGEMENT RELATIONS (1976).
 
    /4/ THE UC PETITION WAS PROCESSED TO THE POINT WHERE ON MARCH 14,
 1980, THE REGIONAL DIRECTOR ISSUED A REPORT AND FINDINGS ON PETITION FOR
 CONSOLIDATION OF UNITS WHEREIN HE FOUND THE CONSOLIDATED UNIT
 APPROPRIATE.  SINCE THIS UNIT INCLUDED PROFESSIONAL EMPLOYEES, A
 SELF-DETERMINATION ELECTION WAS HELD AMONG SUCH EMPLOYEES.  ON AUGUST
 11, 1980, THE PROFESSIONAL EMPLOYEES VOTED FOR INCLUSION WITH THE
 NONPROFESSIONAL EMPLOYEES.  DURING THE PROCESSING OF 3-UC-9, BOTH RO
 PETITIONS WERE HELD IN ABEYANCE.
 
    /5/ THE CASES CITED BY THE DISSENT ARE CLEARLY DISTINGUISHABLE,
 SINCE, APART FROM OTHER CONSIDERATIONS, THEY DID NOT CONCERN PROCEDURAL
 RULES SUCH AS HERE INVOLVED.  MOREOVER, THERE IS NO JUDICIAL SUPPORT FOR
 THE IMPLICIT ASSUMPTION IN THE DISSENT THAT THE APPLICATION OF REVISED
 PROCEDURAL RULES TO PENDING CASES IS INHERENTLY "INEQUITABLE." IN ANY
 EVENT, EVEN APPLYING THE "BALANCING" TEST ADVERTED TO IN THE CASES CITED
 BY THE DISSENT, WE FIND, AS DISCUSSED HEREIN, THAT BOTH THE STATUTORY
 DESIGN AND THE EQUITIES COMPEL THE CONCLUSION THAT SECTION 2422.3(J) OF
 THE FINAL RULES IS APPLICABLE TO THE INSTANT CASES.
 
    /6/ THE NATIONWIDE AND TAMPA UNITS CONSTITUTE THE BULK OF THE
 CONSOLIDATED UNIT SOUGHT BY FASTA/NAGE IN 3-CU-9.
 
    /7/ SECTION 7112 OF THE STATUTE PROVIDES IN RELEVANT PART:
 
    SEC. 7112.  DETERMINATION OF APPROPRIATE UNITS FOR LABOR ORGANIZATION
 REPRESENTATION
 
    (A)(1) THE AUTHORITY SHALL DETERMINE THE APPROPRIATENESS OF ANY UNIT.
  THE AUTHORITY SHALL
 
    DETERMINE IN EACH CASE WHETHER, IN ORDER TO ENSURE EMPLOYEES THE
 FULLEST FREEDOM IN EXERCISING
 
    THE RIGHTS GUARANTEED UNDER THIS CHAPTER, THE APPROPRIATE UNIT SHOULD
 BE ESTABLISHED ON AN
 
    AGENCY, PLANT, INSTALLATION, FUNCTIONAL, OR OTHER BASIS AND SHALL
 DETERMINE ANY UNIT TO BE AN
 
    APPROPRIATE UNIT ONLY IF THE DETERMINATION WILL ENSURE A CLEAR AND
 IDENTIFIABLE COMMUNITY OF
 
    INTEREST AMONG THE EMPLOYEES IN THE UNIT AND WILL PROMOTE EFFECTIVE
 DEALINGS WITH, AND
 
    EFFICIENCY OF THE OPERATIONS OF, THE AGENCY INVOLVED.
 
   .          .          .          .
 
 
    (D) TWO OR MORE UNITS WHICH ARE IN AN AGENCY AND FOR WHICH A LABOR
 ORGANIZATION IS THE
 
    EXCLUSIVE REPRESENTATIVE MAY, UPON PETITION BY THE AGENCY OR LABOR
 ORGANIZATION, BE
 
    CONSOLIDATED WITH OR WITHOUT AN ELECTION INTO A SINGLE LARGER UNIT IF
 THE AUTHORITY CONSIDERS
 
    THE LARGER UNIT TO BE APPROPRIATE.  THE AUTHORITY SHALL CERTIFY THE
 LABOR ORGANIZATION AS THE
 
    EXCLUSIVE REPRESENTATIVE OF THE NEW LARGER UNIT.
 
    /8/ CONTRARY TO THE DISSENT, WE ARE NOT CONCERNED IN THE PRESENT
 CASES WITH ELECTION OR CERTIFICATION BARS, WHICH SEEK TO PROMOTE
 STABILITY OF LABOR-MANAGEMENT RELATIONS DURING REASONABLE PERIODS OF
 TIME.  RATHER, WE ARE CONCERNED WITH THE BAR TO AN ELECTION FOR UP TO
 SEVEN YEARS-- A MANIFESTLY UNREASONABLE PERIOD OF TIME-- BASED ON A
 REVOKED PROVISION OF SECTION 2422.3(J) OF THE INTERIM RULES.  LIKEWISE,
 SECTION 7112(D) OF THE STATUTE RELATING TO CONSOLIDATION OF UNITS WAS
 INTENDED TO FACILITATE LARGER BARGAINING UNITS, NOT TO SHACKLE EMPLOYEES
 IN THE SELECTION OF A BARGAINING REPRESENTATIVE IN THOSE LARGER UNITS.
 
    /9/ THE DISSENT REFERS TO A "LONG ESTABLISHED" POLICY DERIVING FROM
 THE ASSISTANT SECRETARY'S MANUAL AND THE COUNCIL'S DECISION IN THE
 MIDWAY AIRWAY FACILITY CASE, ISSUED UNDER E.O. 11491, AS GROUNDS FOR
 ALLEGED "SURPRISE" BY FASTA/NAGE.  HOWEVER, THE ISSUANCES MENTIONED BY
 THE DISSENT WERE PREDICATED ON THE EXECUTIVE ORDER AND NOT ON THE
 STATUTE.  MOREOVER, THE COUNCIL DID NOT PASS AT ANY TIME ON THE VALIDITY
 OF THE ASSISTANT SECRETARY'S MANUAL AS APPLIED IN CIRCUMSTANCES SUCH AS
 HERE INVOLVED.  ADDITIONALLY, THE MIDWAY AIRWAY FACILITY CASE, CITED BY
 THE DISSENT, IS CLEARLY DISTINGUISHABLE ON ITS FACTS.  THERE, UNLIKE
 HERE, IT APPEARS THAT THE TWO UNITS SOUGHT BY PASS DID NOT CONSTITUTE
 VIRTUALLY ALL OF THE LARGER UNIT SOUGHT TO BE CONSOLIDATED BY
 FASTA/NAGE, AND NO FINDING WAS MADE BY THE COUNCIL THAT PASS HAD
 SUBMITTED AN ADEQUATE SHOWING OF INTEREST IN THE CONSOLIDATED UNIT.  IN
 ANY EVENT, THE NATURE OF TEE TRANSITION AND INTERIM RULES RENDERS
 COMPLETELY UNPERSUASIVE ANY CLAIM OF SURPRISE AT THE CHANGE IN SECTION
 2422.3(J) EFFECTED BY THE FINAL RULES.
 
    /10/ IN ITS "GUIDANCE ON PROCESS" FILED IN FEBRUARY 1980 WITH THE
 REGIONAL DIRECTOR IN 3-CU-9, FASTA/NAGE CONCEDED THAT:  "IT IS THE
 UNDERSTANDING OF (FASTA/NAGE) THAT THE REGIONAL DIRECTOR HAS THE
 DISCRETION IN APPLYING EITHER INTERIM OR FINAL RULES IN PETITIONS
 SUBMITTED UNDER THE INTERIM RULES ON A CASE-BY-CASE BASIS."
 
    /11/ CF. LEEDOM V. INTERNATIONAL BROTHERHOOD OF ELEC. WORKERS, 278
 F.2D 237 (D.C. CIR. 1960), IN WHICH A NEW RULE OF THE NLRB SHORTENING
 THE CONTRACT BAR TERM FROM FIVE YEARS TO TWO YEARS WAS UPHELD BY THE
 COURT AS PROPERLY APPLIED TO A THREE-YEAR CONTRACT ENTERED INTO BY THE
 PARTIES WHEN THE LONGER CONTRACT BAR RULE WAS IN EFFECT.
 
    /12/ IN THIS CONNECTION, THE RECORD INDICATES THAT THE REGIONAL
 DIRECTOR FOUND PASS' SHOWING OF INTEREST IN 3-RO-41 TO BE SUFFICIENT AT
 THE TIME THE PETITION WAS FILED.  SUCH DETERMINATION APPARENTLY WAS NOT
 MADE WITH REGARD TO THE PETITION IN 4-RO-27 AS PROCESSING OF THE CASE
 WAS HELD IN ABEYANCE BEFORE SUCH DETERMINATION COULD BE MADE.  HOWEVER
 BASED UPON THE SHOWING OF INTEREST IN 3-RO-41 RELATIVE TO THE TOTAL
 NUMBER OF EMPLOYEES IN THE CONSOLIDATED UNIT FOUND APPROPRIATE, IT
 APPEARS THAT THE SHOWING OF INTEREST ORIGINALLY SUBMITTED BY PASS IN
 3-RO-41 MEETS THE REQUIREMENTS SET FORTH IN SECTION 2422.3(J) (2) OF THE
 AUTHORITY'S FINAL RULES.
 
    /13/ THE ASSISTANT SECRETARY'S MANUAL ON FEDERAL LABOR-MANAGEMENT
 RELATIONS, BOOK 5, CHAPTER 19, ENTITLED "UNIT CONSOLIDATION CASE
 HANDLING," WHICH WAS ISSUED ON JUNE 28, 1976, STATES AT SECTION 3,
 PARAGRAPH 119.032, IN PART, AS FOLLOWS:
 
    WHEN A PETITION WHICH RAISES A (QUESTION CONCERNING REPRESENTATION)
 IS FILED FOR ALL OR
 
    PART OF ANY UNIT PREVIOUSLY INCLUDED WITHIN A PENDING UC PETITION
 AFTER A UC PETITION HAS BEEN
 
    FILED, THE CONSOLIDATION QUESTION IS RESOLVED FIRST, WITH ANY ACTION
 WITH REGARD TO THE
 
    PETITION RAISING A QCR SUSPENDED PENDING THE RESOLUTION OF THE
 CONSOLIDATION ISSUE.  AFTER A
 
    CONSOLIDATED UNIT WINS APPROVAL AND IS CERTIFIED AS AN APPROPRIATE
 UNIT, ANY QCR PETITION WITH
 
    RESPECT TO ALL OR PART OF ANY OF THE UNITS CONSOLIDATED WHICH WAS
 FILED SUBSEQUENT TO THE UC
 
    PETITION SHOULD BE DISMISSED.
 
    /14/ SEE, E.G., DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
 ADMINISTRATION, MIDWAY AIRWAY FACILITY SECTOR, CHICAGO, ILLINOIS,
 ASSISTANT SECRETARY CASE NOS.  50-15422 (RO) AND 50-15424 (RO), 6 FLRC
 376 (1978), WHEREIN THE ASSISTANT SECRETARY DISMISSED TWO RO PETITIONS
 FILED BY PASS (THE PETITIONER HEREIN) SEEKING TO REPRESENT TWO SEPARATE
 UNITS OF TECHNICIANS WITHIN THE FAA (THE ACTIVITY HEREIN) ONCE THOSE
 UNITS WERE CONSOLIDATED INTO A LARGER EXISTING UNIT REPRESENTED BY
 FASTA/NAGE PURSUANT TO THE LATTER'S UC PETITION WHICH HAD BEEN PENDING
 AT THE TIME THAT PASS FILED ITS RO PETITIONS.  THE FEDERAL LABOR
 RELATIONS COUNCIL DENIED PASS' PETITION FOR REVIEW OF THE ASSISTANT
 SEC