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 ]
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.