34:0123(27)RO - VA, WASHINGTON, D.C. and VA MEDICAL CENTER, CHICAGO, ILLINOIS and VA INDEPENDENT UNION and SEIU -- 1989 FLRAdec RO



[ v34 p123 ]
34:0123(27)RO
The decision of the Authority follows:


 34 FLRA NO. 27
  

              U.S. DEPARTMENT OF VETERANS AFFAIRS
                        WASHINGTON, D.C.
                           (Agency)

                              and

              U.S. DEPARTMENT OF VETERANS AFFAIRS
                        MEDICAL CENTER
                       CHICAGO, ILLINOIS
                          (Activity)

                              and

              VETERANS AFFAIRS INDEPENDENT UNION
                         (Petitioner)

                              and

             SERVICE EMPLOYEES INTERNATIONAL UNION
                         (Intervenor)

                          5-R0-80011

	   ORDER GRANTING APPLICATION FOR REVIEW

     

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This case is before the Authority on an application for
review filed by Veterans Affairs Independent Union (Petitioner)
under section 2422.17(a) of the Authority's Rules and
Regulations. The Petitioner seeks review of the Regional
Director's Decision and Order. The Service Employees
International Union (Intervenor) and the Veterans Affairs (VA),
Washington, D.C. (Agency) each filed a response to the
application for review. 

     On June 6, 1989, because two vacancies existed in the
membership of the Authority, Acting Chairman McKee issued an
Interim Order directing that consideration of this application be
deferred until further notice. That action preserved the parties'
rights under the Statute to Authority consideration of the
Regional Director's decision. We now consider this application,
and for the reasons below, we grant the application.

II. The Regional Director's Decision

     The Regional Director found that the Petitioner is not a
labor organization within the meaning of section 7103(a)(4) of
the Statute. Section 7103(a)(4) provides in part that "'labor
organization' means an organization . . . in which employees . .
. pay dues(.)" The Regional Director stated that to meet this
definition, at a minimum an organization "must have some
reference in its constitution and bylaws or in its formal records
and documents that provides a process for the payment and
recordation of membership dues." Regional Director's decision at
4. He concluded that because there was "no procedure or process
provided by Petitioner . . . whereby members can tender money
that translates to dues," the Petitioner is not a labor
organization and dismissed the petition because section 7111(a)
of the Statute requires that an entity must be a labor
organization to be accorded exclusive recognition. Id.

III. The Application for Review

     The Petitioner contends that the Authority should grant its
application because the Regional Director's decision is arbitrary
and capricious, is based upon an erroneous interpretation of law
and testimony, and is prejudicial. Specifically, the Petitioner
asserts that: (1) there is no requirement that procedures for the
establishment and payment of dues be stated in its constitution
and bylaws; (2) the record shows that dues were in fact
collected; and (3) there was prejudicial conduct on the part of
the hearing officer.

IV. Oppositions to Application for Review

     The Agency argues in opposition that: (1) a compelling
reason does not exist for granting review; (2) the Regional
Director's ruling that the Petitioner is not a labor organization
within the meaning of the Statute was correct; and (3) the
conduct of the hearing was without prejudice. 

     The Intervenor argues that the application for review is
without merit because: (1) the Regional Director correctly
determined that the Petitioner is not a labor organization; and
(2) the hearing officer's conduct was not prejudicial.

V. Discussion

     On consideration of the application for review and the
responses by the Intervenor and the Agency, it appears to the
Authority that compelling reasons exist for granting review
pursuant to the provisions of section 2422.17(c)(1) of the Rules
and Regulations. Specifically, it appears that substantial
questions of law or policy are raised because of the absence of
specific Authority precedent with respect to the following:

     (1) Whether a process for the establishment and payment of
dues must be stated in an entity's constitution and bylaws or in
its formal records and documents for an organization to be a
labor organization within the meaning of the Statute.

     (2) Whether Petitioner is a labor organization within the
meaning of section 7103(a)(4) of the Statute.

     For the following reasons, we find no basis for granting
review on the grounds that there was prejudicial conduct by the
hearing officer.

     First, the Petitioner asserts as prejudicial the fact that
the hearing officer required the Petitioner's president and the
Petitioner's representative to testify. We do not agree. The
purpose of the hearing was to determine whether the Petitioner's
petition was supported by appropriate facts. The Petitioner has
failed to explain how it was prejudiced because its officers were
required to testify at the hearing. We find that the hearing
officer's conduct of the hearing in this regard provides no basis
for granting review.

     Second, the Petitioner asserts that it was prejudiced by the
hearing officer's refusal to call the Intervenor's attorney as a
witness. We disagree with this assertion also. That individual
stated that he did not know anything about the facts of the case,
and that he was at the hearing procedurally, to direct testimony
and to argue the case. Transcript at 288. The Petitioner gives no
reason for having called the Intervenor's attorney, nor does the
Petitioner submit what it would have asked if it had been allowed
to examine him. We therefore find that the hearing 
officer's conduct of the hearing in this regard also provides no
basis for granting review.

     Finally, the Petitioner alleges in its brief that "the
Director found it easy to support the position of the Intervenor"
because the majority of the Intervenor's officers are white and
the majority of the Petitioner's officers are black "with a lot
less money" than the Intervenor. Application for Review at 2. We
find that the allegation that the racial makeup and financial
status of the Petitioner's and Intervenor's officers were
considered by the Regional Director is unsubstantiated and,
therefore, provides no basis for granting review.

VI. Order

     For the reasons discussed above, we grant the application
for review. In accordance with section 2422.17(g) of the
Authority's Rules and Regulations, the parties may submit briefs
within 10 days after issuance of this Order. Such briefs shall be
limited to th