33:0482(65)AC - - DOI, Bureau of Indian Affairs (Navajo Area, Gallup, NM; Alburqueque, NM; Washington, DC) and National Council of Bureau of Indian Affairs Educations/AFT and NCBIAE/NEA - - 1988 FLRAdec AC - - v33 p482



[ v33 p482 ]
33:0482(65)AC
The decision of the Authority follows:


33 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

NAVAJO AREA, GALLUP, NEW MEXICO

(Activity)

and

NATIONAL COUNCIL OF BUREAU OF

INDIAN AFFAIRS EDUCATORS

(Petitioner)

6-AC-70006

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

ALBUQUERQUE, NEW MEXICO

(Activity)

and

NATIONAL COUNCIL OF BUREAU OF

INDIAN AFFAIRS EDUCATORS

(Petitioner)

6-AC-70005

UNITED STATES DEPARTMENT OF THE

INTERIOR, BUREAU OF INDIAN AFFAIRS

ALBUQUERQUE, NEW MEXICO

(Activity)

and

UNITED STATES DEPARTMENT OF THE

INTERIOR, BUREAU OF INDIAN AFFAIRS

WASHINGTON, D.C.

(Petitioner)

and

NATIONAL COUNCIL OF BUREAU OF

INDIAN AFFAIRS EDUCATORS/AFT

(Labor Organization/Incumbent

6-RA-70001

UNITED STATES DEPARTMENT OF THE

INTERIOR, BUREAU OF INDIAN AFFAIRS

NAVAJO AREA OFFICE

GALLUP, NEW MEXICO

(Activity)

and

UNITED STATES DEPARTMENT OF THE

INTERIOR, BUREAU OF INDIAN AFFAIRS

WASHINGTON, D.C.

(Petitioner)

and

NATIONAL COUNCIL OF BUREAU OF

INDIAN AFFAIRS EDUCATORS/AFT

(Labor Organization/Incumbent)

6-RA-70002

6-RA 80001

ORDER DENYING APPLICATIONS FOR REVIEW

October 27, 1988

Before Chairman Calhoun and Member McKee

I. Statement of the Case

In U.S. Department of Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 31 FLRA 76 (1988), we granted the applications for review filed by the Department of Interior (DOI) and the National Education Association (NEA) to the Regional Director's decisions in the above-entitled cases. On April 22, 1988, we issued a Decision and Order Remanding Cases in which we remanded the above-entitled cases to the Regional Director. The cases were remanded because we were unable to reach a decision due to either conflicting evidence or unclear facts contained in the Regional Director's decisions.

Subsequent to our remand, the Regional Director issued a Supplemental Decision and Order in which he affirmed his earlier decisions by granting the Amendment of Certification (AC) petitions filed by the National Council of Bureau of Indian Affairs Educators affiliated with the American Federation of Teachers (NCBIAE/AFT) and by dismissing the Agency Doubt as to Representative Status (RA) petitions filed by the DOI. The above-named cases are presently before the Authority on applications for review of the Regional Director's Supplemental Decision and Order filed by DOI and NEA under section 2422.17(a) of the Authority's Rules and Regulations.

For the reasons discussed below, we find that DOI and NEA have not established any basis for review of the Regional Director's Supplemental Decision and Order. The applications for review are denied.

II. Background

On December 10, 1971, a Certification of Representative was issued to the "National Council of Bureau of Indian Affairs Educators, National Education Association (NCBIAE), NEA" as the exclusive representative of a unit of all non-supervisory professional educational employees of the Bureau of Indian Affairs in the Navajo Area, Gallup, New Mexico. The NCBIAE and NEA were not certified as joint exclusive representatives, but rather the NCBIAE was certified as sole exclusive representative with identification of NEA as its affiliated labor organization. Supplemental Decision at 3. On December 16, 1971, Curtis Chogamah, Assistant Area Director, Navajo Area Office, Gallup, New Mexico, also granted recognition to NCBIAE as the exclusive representative of the above named unit.

On May 26, 1972, a Certification of Representative was issued to NCBIAE as the exclusive representative of a unit of all non-supervisory professional educational employees in the Albuquerque Area of the Bureau of Indian Affairs. This certification omitted any reference to NEA. Supplemental Decision at 4.

On October 1, 1980, the Council of Consolidated BIA Locals, National Federation of Federal Employees filed a representative petition (RO) seeking to replace the NCBIAE as the exclusive representative for the Gallup unit of employees. In response to the Regional Director's request for information relating to the representative petition, by letter dated October 27, 1980, Dwight E. Marahh, Acting Area Director, Bureau of Indian Affairs, stated that the Navajo Area Council of the NCBIAE had been accorded an exclusive recognition pursuant to the Navajo Area Director's letter dated December 16, 1971, under the provisions of Executive Order 11491. Supplemental Decision at 4. On February 27, 1981, a Certificate of Representative was issued pursuant to the results of the RO petition election which certified NCBIAE as the exclusive representative of the Gallup unit of employees. Although the caption of the case referred to National Council of BIA Educators (AEA/NEA-NM/NEA) as incumbent intervenor, only NCBIAE was certified as the representative for the purpose of exclusive recognition and only NCBIAE was provided with service of the certification. Supplemental Decision at 4, 5. The record indicates that the NEA never objected to that certification on the grounds that it should have been included.

On March 30, 1987, NEA notified NCBIAE that NEA had terminated NCBIAE's affiliation with NEA. On April 4, 1987, 45 percent of the membership of the Union petitioned the NCBIAE Executive Board to change the NCBIAE constitution to allow affiliation with the AFT. That same day, the Board voted to affiliate with AFT. On April 5, 1987, the Board distributed a newsletter to all Union members explaining why the Board favored affiliation with AFT. On April 7, 1987, the Board sent a letter to all members explaining that NEA had terminated the affiliation with NCBIAE, that the Board had voted to support affiliation with AFT, and that members would soon receive mail ballots. Members were informed that they were to vote on removing references to NEA from the Union's constitution and by laws.

Thereafter, on April 10, 1987, the Board mailed to all members an "Official Notice of Constitutional Referendum." The "Notice" informed the members of NEA's termination of the affiliation and of the petition the Board had received from the membership calling for a referendum on affiliation with AFT. On April 14, 1987, the President of NCBIAE sent a letter to all members of the Union again informing them of the Board's vote to affiliate with AFT and urging members to vote for affiliation. The Regional Director found that no membership meeting was held to discuss the issue because the Union's membership is dispersed over the states of Utah, Arizona and New Mexico. Regional Director's decision in Case No. 6-AC-70005 at 2.

On April 14, 1987, the League of Women Voters sent out ballots to the NCBIAE membership. The only question on the ballot concerned the disaffiliation from NEA and affiliation with AFT. The returned ballots were counted on May 22, 1987, and the vote for affiliation with AFT was 72 for affiliation and 5 opposed.

By letter dated July 6, 1987, AFT notified NCBIAE that it had been granted a charter in AFT. The record reflects that as a result of the affiliation with AFT, there has been no change in the organizational structure and identity of the officers and representatives of NCBIAE, and that employees in the bargaining units will continue to be represented by the officers and representatives elected by them in NCBIAE. Supplemental Decision at 8.

The record indicates that on August 28, 1984, a collective bargaining agreement between the DOI, BIA, Albuquerque Area and the NCBIAE became effective with an expiration date of August 28, 1987. Further, the record indicates that on February 8, 1984, a collective bargaining agreement between the DOI, BIA, Navajo Area, Gallup and NCBIAE became effective with an expiration date of February 8, 1987. NCBIAE officers were the exclusive Union signatories on both these agreements. In the past 5 years, NCBIAE has pursued a number of grievances on behalf of the units' employees and has engaged in a number of consultations with the DOI over conditions of employment. In the Albuquerque unit there are currently 5 employees and in the Gallup unit there are 61 employees on dues withholding.

The bargaining history of the certifications indicate that the NCBIAE officers are and continue to be the guiding force and representatives of the Union and NEA's minimal involvement in the units had only been provided at the request of NCBIAE. Supplemental Decision at 8.

II. Regional Director's Supplemental Decision

As the result of the change in affiliation from NEA to AFT, NCBIAE/AFT filed the AC petitions to amend its certifications to reflect the change. In response to the AC petitions, the DOI filed its RA petitions alleging that NCBIAE/AFT no longer represents a majority of the employees in the existing units.

In his original decisions, the Regional Director granted NCBIAE/AFT's AC petitions for the following reasons: (1) the certifications involved were issued to NCBIAE and not to NEA and, therefore, the change only involved a change in affiliation and not a change from one rival labor organization to another; and (2) NCBIAE/AFT followed the required standards for changing affiliation which was first established in the Federal sector under Executive Order 11491 in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 859 (1974), review denied, 3 FLRC 259 (1975) and subsequently adopted by the Authority in Florida National Guard, Saint Augustine, Florida, 25 FLRA 728 (1987)(Florida National Guard).

Further, the Regional Director dismissed the RA petitions filed by the DOI. The Regional Director found that the petitions were untimely, because: (1) there were negotiated agreements in effect covering both units and DOI's petitions were not filed during the open period, and (2) that the petitions were otherwise deficient. The Regional Director also found that there was insufficient evidence to support DOI's claim that NCBIAE/AFT no longer represents the majority of employees in the existing units.

In his Supplemental Decision, the Regional Director affirmed his earlier findings. Further, The Regional Director discussed the procedure by which NCBIAE changed its affiliation from NEA to AFT in light of the Supreme Court's decision in NLRB v. Financial Institution Employees of America, Local 1182, 475 U.S. 192 (1986)(Financial Institution Employees) in which the Court enunciated the following two conditions which must be met in changing the affiliation status of an exclusive bargaining representative: (1) union members have had an adequate opportunity to vote on the affiliation and, (2) there was a substantial continuity between the pre- and post-affiliation union. The Regional Director also noted that the Court affirmed the doctrine of "members only" vote in affiliation elections which the Authority followed in Florida National Guard.

The Regional Director found that the two conditions enunciated in Financial Institution Employees were satisfied by NCBIAE. With respect to the first condition, the Regional Director noted that: (1) the affiliation of NCBIAE to NEA was initially terminated voluntarily and unequivocally by Executive Board action of NEA; (2) NCBIAE did not object to or did not appeal the termination; (3) the NCBIAE Executive Board, on the basis of a petition of the membership, solicited affiliation with AFT; and (4) the membership of NCBIAE confirmed the Executive Board action by its majority vote to affiliate with AFT. Supplemental Decision at 7, 8.

With respect to the second condition, the Regional Director noted that: (1) NCBIAE officers were the exclusive signatories for the Union on the collective bargaining agreements for both of the units in question and no representative from NEA signed either agreement; (2) the change in affiliation has not changed either the organizational structure of NCBIAE nor necessitated a change in its officers; (3) the situation whereby NCBIAE designated NEA representatives to handle certain matters for NCBIAE was noted by the Court in Financial Institution Employees as a natural consequence in the affiliation relationship and is one of the reasons for such a relationship; and (4) there was no change in the constitution of NCBIAE which substantially changed or altered the rights of bargaining unit employees. Supplemental Decision at 8.

The Regional Director noted that footnote 1 in the original Decisions and Orders in Case Nos. 6-AC-70005 and 6-AC-70006 should have read "NEA's affiliation was inadvertently omitted from the certification and certification was in fact granted to NCBIAE, which was affiliated with the NEA." Decision at 8. (emphasis in original).

In conclusion, the Regional Director granted the AC petitions filed by the NCBIAE/AFT and dismissed the RA petitions filed by the DOI.

IV. Applications for Review

A. NEA

The NEA seeks review of the Regional Director's Supplemental Decision and Order with respect to his findings relating to Case Nos. 6-AC-70005 and 6-AC-70006 on the following grounds: (1) the change in affiliation from NEA to AFT is a designation of a new exclusive representative and an AC petition is not the proper procedure for changing from one exclusive representative to another; and (2) the change in affiliation from NEA to AFT is a decertification of NCBIAE/NEA. NEA asserts that the proper procedures for decertification were not followed and that NEA was denied due process under the Authority's Rules and Regulations.

B. DOI

1. Application for review of the Regional Director's Supplemental decision on AC petitions

DOI objects to the fact that the Regional Director issued a new decision when the remand was strictly limited to the identity of the entity which held the most recent certification. DOI contends that the Authority has already granted review of the issues involved in this case and that it should not be placed in the position of having to file another application for review on the merits of the entire case, but rather DOI should only have to appeal to the limited issue in the limited remand.

On the merits DOI argues that the affiliation election is invalid in that it was held without meeting due process requirements because: (1) there was no meeting held; (2) there was no adequate opportunity for discussion; (3) the membership did not have information as to the differences in scope and character between the AFT and the NEA; and (4) there was a change in the substance of the representative rather than merely a name change. DOI asserts that the effect of the affiliation election was to change representatives, which is not permitted in an affiliation election. Finally, DOI contends that the Regional Director either ignored or resolved factual disputes in favor of the NCBIAE without conducting an investigation or a hearing.

2. Application for review of the Regional Director's Supplemental decisions on RA petitions

DOI contends that the Regional Director failed to make a necessary finding as to whether the AFT qualifies as a labor organization within the meaning of section 7103(a)(4) of the Statute. In this regard, the DOI contends that the Regional Director erred in finding that the question of AFT's role or action in condoning strikes is irrelevant to the issues of these cases.

DOI further contends that the Regional Director erroneously determined that management did not have a good faith doubt as to the NCBIAE's majority status for the following reasons: (1) no formal investigation was made by the Regional Director; (2) NCBIAE/AFT was not a viable and active labor organization; (3) NCBIAE/AFT has taken no action during the past 15 years with regard to improving the collective bargaining agreement; (4) only 5 of the approximately 200 bargaining unit employees in the Albuquerque unit and only 61 of the approximately 900 bargaining unit employees in the Navajo unit are on dues withholding; (5) only 79 out of 1100 bargaining unit members participated in the affiliation election; (6) only a few grievances have been handled in the past 5 years by NCBIAE/AFT; and (7) the contracts involved were passively renewed by an automatic renewal.

In conclusion, DOI requests that the Regional Director's Supplemental Decision be set aside and that elections be directed in the RA cases.

V. Analysis and Conclusions

We find no merit in the DOI's argument that its rights were violated in the present case because it was required to file a petition for review under section 2422.17 of the Authority's Rules and Regulations. While we granted review in Bureau of Indian Affairs, 31 FLRA 76, our review of the record before us indicated that there were unclear facts or conflicting evidence in certain facets of the case and, therefore, we were unable to reach a decision. Accordingly, we remanded the case to the Regional Director for whatever action was required. The Regional Director reviewed the facts of the above-named cases and issued a Supplemental Decision and Order. We note that the Regional Director did not materially alter his previous decisions. The Supplemental Decision clarified and expanded on the Regional Director's original decisions. The Regional Director's

Supplemental Decision is a decision separate and apart from his earlier decisions which, like all similar cases, brings section 2422.17 of the Authority's Rules and Regulations into play. Pursuant to this section, the only way a party may appeal a Regional Director's decision is to file an application for review. Therefore, the only method for DOI to appeal the Regional Director's Supplemental Decision and Order is to file an application for review pursuant to section 2422.17(a) of the Authority's Rules and Regulations.

Upon careful consideration of the applications, we conclude that no compelling reasons exist, within the meaning of section 2422.17(c) of the Authority's Rules and Regulations, for granting review of the Regional Director's Supplemental Decision and Order. Rather, the applications express nothing more than disagreement with the Regional Director's findings and conclusions, which are based on record evidence and have not been shown to be clearly erroneous and to have prejudicially affected the rights of any party.

We recognize that a number of questions raised by NEA and DOI may have been avoided if the Regional Director had followed other factfinding procedures. A hearing may even have been the preferable procedure