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 through its internal processes. However, since
the time limit for Authority action on applications for review of
determinations of Regional Directors in cases such as this is prescribed
by Congress in section 7105(f) of the Federal Service Labor-Management
Relations Statute (the Statute), we cannot hold the applications in
abeyance. Accordingly, we must deny the AFL-CIO request.
(2) HFEMTC also filed a request to file a supplemental opposition.
However, because it would delay processing of the case, the request is
denied.
(3) We note, contrary to the Regional Director, that there is nothing
in the Statute or the Authority's Rules and Regulations, which precluded
the Regional Director from correcting an administrative error in the
certification originally issued in Region 8 in Case No. 8-RA-1.