27:0816(88)AC - Navy, Naval Resale Activity, Navy Exchange, HI and Service Employees' International Union Local 556 and Hawaii Federal Employees MTC -- 1987 FLRAdec RP



[ v27 p816 ]
27:0816(88)AC
The decision of the Authority follows:


 27 FLRA No. 88
 
 DEPARTMENT OF THE NAVY
 NAVAL RESALE ACTIVITY
 NAVY EXCHANGE, HAWAII
 Activity
 
 and
 
 SERVICE EMPLOYEES' INTERNATIONAL
 UNION, LOCAL 556, AFL-CIO
 Union
 
 and
 
 HAWAII FEDERAL EMPLOYEES METAL TRADES
 COUNCIL, AFL-CIO
 Union
 
                                            Case No. 98-AC-60006
 
                   ORDER DENYING APPLICATIONS FOR REVIEW
 
                         I.  Statement of the Case
 
    This case is before the Authority on applications for review filed by
 the Department of the Navy, Naval Resale Activity, Navy Exchange, Hawaii
 (Activity) and the Service Employees' International Union, Local 556,
 AFL-CIO (SEIU), under section 2422.17(a) of the Authority's Rules and
 Regulations, seeking review of the Regional Director's Order Granting
 Motion To Be A Party To The Instant Case And Correcting Clarification Of
 Unit.  /1/ The Hawaii Federal Employees Metal Trades Council (HFEMTC),
 filed an opposition to the applications.  /2/
 
                     II.  Regional Director's Decision
 
    On August 1, 1986, SEIU filed a petition to amend a prior
 certification which had issued concerning the Navy Exchange unit.  SEIU
 requested a change in the name of the Activity from "Navy Exchange,
 Pearl," to "Naval Resale Activity" and also sought to include certain
 employees within the unit.  A hearing was held on this matter on
 September 30, 1986.  Subsequently, by Order dated December 8, 1986, the
 hearing was scheduled to reopen for additional evidence on January 9,
 1987.  On January 8, 1987, HFEMTC filed a request with the Regional
 Director seeking to be named as a party in the proceeding.  HFEMTC also
 requested that prior certifications concerning the unit involved be
 corrected to reflect HFEMTC's status as a joint exclusive representative
 of the unit.  Thereafter, the scheduled hearing was postponed
 indefinitely and by Order dated January 27, 1987, the Regional Director
 required the parties to show cause as to whether the HFEMTC request to
 be a party to the proceeding should be granted and whether the
 certification of the Navy Exchange, Pearl unit should be corrected to
 reflect the status of HFEMTC as a joint exclusive representative with
 SEIU.
 
    Based on the information and positions submitted by the parties, the
 Regional Director found that HFEMTC's name as a joint exclusive
 representative of the Navy Exchange unit had been inadvertently omitted
 from the Report and Findings in Case No. 8-RA-1 and that as a result of
 the omission, HFEMTC was erroneously deleted from the Certification of
 Representative of the unit in that case, which issued on April 9, 1980.
 The Regional Director rejected the arguments of the Activity and SEIU
 that HFEMTC's requests in this case should be denied because it did not
 seek review in Case No. 8-RA-1 and should not be allowed at this time to
 correct any error that occurred in 1980.  He found that HFEMTC was not
 properly served with the Report and Findings, was never served with the
 Certification of Representative in Case No. 8-RA-1 and, further, was not
 informed by SEIU of the existence of either document.  Further, he noted
 that when SEIU filed its petition in Case No. 98-CU-60005 on November 8,
 1985, in which it sought to clarify the status of certain employees of
 the Activity, at no time during the processing of the case was the
 Region informed by either the Activity or the SEIU that there was an
 error in the certification issued in Case No. 8-RA-1.  Consequently, the
 Regional Director granted HFEMTC's motion to correct the certification
 which he had issued in Case No. 98-CU-60005.  He issued a Corrected
 Clarification of Unit in that case, identifying HFEMTC and SEIU as joint
 exclusive representatives.  Additionally, the Regional Director granted
 HFEMTC's request to be made a party to this case as a joint exclusive
 representative.  Finally, the Regional Director dismissed HFEMTC's
 request to correct the certification in Case No. 8-RA-1, stating that he
 had no authority to alter a certification issued by another region.
 
                       III.  Applications for Review
 
    In its application for review, the Activity contends that the
 Regional Director erred in his findings and that he overlooked facts
 that would lead to a different and correct result.  The Activity
 therefore requests that the Regional Director's Orders "be nullified."
 Alternatively, the Activity argues that a hearing should be held to
 develop a complete record before any ruling is made concerning the
 appropriateness of amending or altering any prior certification
 affecting the unit in question.
 
    SEIU contends in its application that HFEMTC and the Regional
 Director did not follow proper procedures to resolve HFEMTC's status.
 In support of that contention, SEIU argues, among other things, that the
 Regional Director improperly used a show cause order rather than an
 investigation and hearing.  SEIU maintains that the Regional Director
 did not have the benefit of a complete record in making his
 determinations.  SEIU also argues that a number of relevant and material
 facts concerning the relationship between SEIU, HFEMTC, and the Activity
 were not considered.  SEIU requests that the Orders issued by the
 Regional Director be set aside and moves to reopen the record in the
 case.
 
    HFEMTC in its opposition to the applications for review of the
 Activity and SEIU argues that the Regional Director's findings were
 correct and the proper procedures were followed.  HFEMTC also contends
 that the Regional Director had the benefit of a complete record, that
 all of the parties had an opportunity to present their views and that
 they did respond at length to the Regional Director's show cause order.
 
                       IV.  Analysis and Conclusion
 
    The applications for review raise two issues:  (1) whether the
 Regional Director correctly granted HFEMTC's request to become a party
 to this case;  and (2) whether the Regional Director correctly found
 that HFEMTC was inadvertently and erroneously deleted from the
 Certification of Representative issued in Case No. 8-RA-1 and properly
 issued the Corrected Clarification of Unit in Case No. 98-CU-60005,
 designating HFEMTC a joint exclusive representative of the unit involved
 in this case.  The appeal of the ruling concerning HFEMTC's request to
 become a party might be considered to be interlocutory.  Section 2429.22
 of our Regulations provides that we "ordinarily" will not consider
 interlocutory appeals.  We find, however, that in the circumstances of
 this case the issues are so intertwined that we will consider them
 together.
 
    Upon careful consideration of the applications, we conclude that no
 compelling reason exists for granting review.  Rather, the applications
 merely express disagreement with the Regional Director's use of a show
 cause order rather than a hearing to develop a factual record and with
 his findings of fact based on the submissions of the parties in response
 to that order.
 
    While it appears that a number of questions raised by the SEIU and
 the Activity might have been avoided if the Regional Director had
 followed other fact finding procedures, such as a hearing, and while a
 hearing may be the preferable procedure in situations such as this, that
 is not to say that the use of a show cause order was clearly erroneous
 within the meaning of section 2422.17(c) of the Rules and Regulations.
 The parties were afforded a full opportunity to present their views
 concerning the factual background in the matter.  Although SEIU and the
 Activity may have expected or now prefer a hearing to present those
 views, that does not establish a compelling reason for granting their
 applications for review.
 
    Similarly, SEIU and the Activity have not shown that any finding of
 the Regional Director on any substantial factual issue is clearly
 erroneous.  On the contrary, the record developed from the submissions
 of the parties in response to his show cause order contains information
 that supports the Regional Director's factual determinations.
 
    Finally, we find that the applications do not provide any other basis
 for granting review under section 2422.17(c) of the Rules and
 Regulations.  /3/
 
    Accordingly, pursuant to section 2422.17(f)(3) of the Rules and
 Regulations, the applications for review are denied.
 
    Issued, Washington, D.C., June 26, 1987.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       /s/ Jean McKee
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The AFL-CIO requested that the matter be held in abeyance by the
 Authority pending efforts to resolve the dispute between SEIU Local 556
 and the Hawaii Federal Employees Metal Trades Council (HFEMTC) under the
 AFL-CIO Internal Disputes Plan.  The Authority appreciates and
 encourages the efforts of the AFL-CIO to resolve the dispute between its
 affiliate organizations t