34:0223(45)AC - FLORIDA NATIONAL GUARD ST. AUGUSTINE, FLORIDA and NAGE, LOCAL R5-120, SEIU-- 1990 FLRAdec AC
[ v34 p223 ]
The decision of the Authority follows:
34 FLRA NO. 45 FLORIDA NATIONAL GUARD ST. AUGUSTINE, FLORIDA (Activity) and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R5-120, SEIU (Labor Organization/Petitioner) 4-AC-90004 ORDER DENYING APPLICATION FOR REVIEW January 11, 1990 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 under section 2422.17(a) of the Authority's Regulations. The Florida National Guard, St. Augustine, Florida (the Activity) seeks review of the Regional Director's Decision and Order on a petition for amendment of recognition filed by the National Association of Government Employees (NAGE), Local R5-120, SEIU, AFL - CIO (Local R5-120). NAGE Local R5-120 did not file an opposition to the application. Local R5-120 sought to amend the recognition covering a unit of Army National Guard Aviation technicians located at Craig Field, Jacksonville, Florida, to reflect a merger between itself and NAGE, Local R5-107 (Local R5-107). The Regional Director granted the petition. Inasmuch as the Authority had two vacancies when this application for review was received, Acting Chairman McKee issued an Interim Order on November 2, 1989, directing that consideration of the application be deferred until further notice. The Interim Order preserved the parties' rights under the Federal Service Labor - Management Relations Statute (the Statute) to Authority consideration of the Regional Director's decision. For the reasons discussed below, the Activity's application for review is denied. II. Regional Director's Decision NAGE, Local R5-120 represents a unit of approximately 400 Army National Guard technicians located throughout Florida. NAGE Local R5-107 represents wage grade and general schedule Army National Guard Aviation Technicians located at Craig Field, Jacksonville, Florida. Local R5-120 filed a petition to amend the recognition for the bargaining unit at Craig Field. The petition sought to change the name of the exclusive representative for the unit employees at Craig Field from NAGE, Local R5-107 to NAGE, Local R5-120 "to show a merger" of the two locals. Regional Director's Decision at 2. The Regional Director found that (1) the members of Local R5-107 were notified by the National Office of NAGE of a special meeting to discuss the proposed merger with Local R5-120; (2) the meeting was attended by 9 of the 20 members of Local R5-107; (3) the special meeting included a discussion of the proposed merger and a question-and-answer period; and (4) all members present voted, by secret ballot, for the merger. Id. The Regional Director rejected the Activity's assertion that the amendment of recognition would result in a consolidation of the two bargaining units. The Regional Director found: (T)he Petitioner is not trying to consolidate the units. Rather, the Petitioner is seeking only to change the name of the exclusive representative for the unit . . . at Craig Field. Further, the Army National Guard Technicians and the Army National Guard Aviation Technicians will continue to be in two separate bargaining units. Id. at 3 (emphasis in original). The Regional Director granted Local R5-120's petition. III. Application for Review The Activity contends that "mergers are no longer authorized" under the Authority's Regulations. Application for Review at 1. The Activity asserts that the procedures for mergers which were set forth in Veterans Administration Hospital, Montrose, New York and American Federation of Government Employees, Local 2440, AFL - CIO, 4/ASLMR 859 (1974), review denied, 3 FLRC 259 (1975) (Montrose) were replaced by the Authority's Rules and Regulations. The Activity argues that because "mergers are no longer condoned," the Regional Director's Decision and Order is "invalid." Application for Review at 2. The Activity also contests findings of the Regional Director concerning the procedures followed to effect the merger. First, the Activity contends that because the National Office of NAGE did not have "valid mailing addresses" for the NAGE Local R5-107 membership, notice of the special meeting concerning the merger was not "carried out as reported by the NAGE" to the Regional Director. Id. at 3. The Activity "suggests that the only notification to the membership (of Local R5-107) was via posting of a notice." Id. Second, the Activity contends that the vote for the merger was taken on slips of paper which were collected and counted. Id. at 4. According to the Activity, this procedure "was not in accordance with established Rules and Regulations." Id. Third, the Activity contends that although the Regional Director stated that 9 of 20 Local R5-107 members attended the special meeting, documents available to the Activity show that the local had only 15 dues-paying members. Fourth, the Activity contends that contrary to the Regional Director's finding, Local R5-107 has a pending grievance in arbitration. Finally, the Activity asserts that "a consolidated unit will not ensure a clear and identifiable community of interest among technicians." Id. at 5. According to the Activity: A consolidated unit would not promote effective dealings with the ACTIVITY because of the organizational structure of the Florida Army National Guard and the legal constraints imposed by law. The efficiency of the operations of the ACTIVITY would be greatly reduced under consolidation. This ACTIVITY therefore could neither support the proposed consolidation nor join in a joint petition(.) Id. IV. Analysis and Conclusion A. Introduction Section 2422.17(c) of the Authority's Regulations provides that the Authority may grant an application for review "only where it appears that compelling reasons exist therefor." Subsections (1) through (4) of section 2422.17(c) specify the grounds on which an application for review may be granted. For the reasons which follow, we conclude that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Regulations for granting the Activity's application for review. The Activity does not address the grounds in section 2422.17(c) of our Regulations for granting applications for review. We will assume, for the purpose of this decision, that (1) the Activity's argument that mergers are not permitted under the Statute constitutes an allegation that a substantial question of law or policy is raised by the absence of or departure from Authority precedent, within the meaning of section 2422.17(c)(1) of the Regulations; and (2) the Activity's arguments concerning the Regional Director's factual findings constitute an allegation that the Regional Director's decision on a substantial factual issue is clearly erroneous and that the error prejudicially affects the Activity's rights, within the meaning of section 2422.17(c)(4) of the Regulation. The Activity's argument concerning the "consolidation" of the bargaining units represented by Locals R5-107 and R5-120 is, for reasons discussed below, inapposite. B. There is No Absence of, or Departure From, Precedent In Florida National Guard, St. Augustine, Florida, 25 FLRA 728, 729 (1987) (Florida National Guard), the Authority held that Montrose "remains in full force and effect because it has not been revised or superseded by decisions issued pursuant to the Statute." In addition, the Authority approved the application of the Montrose procedures to mergers of local unions under the Statute. Id. Consistent with the Authority's decision in Florida National Guard, we reject the Activity's assertions that mergers are not authorized under the Statute and that the Montrose procedures do not apply in this case. C. The Activity Has Not Demonstrated that the Regional Director's Decision on a Substantial Factual Issue is Clearly Erroneous Montrose requires that the following procedures be followed to ensure that an amendment of recognition conforms to the desires of the membership and that no question concerning representation exists: (1) A proposed change in affiliation should be the subject of a special meeting of the members of the incumbent labor organization, called for this purpose only, with adequate advance notice provided to the entire membership; (2) the meeting should take place at the time and place convenient to all members; (3) adequate time for discussion of the proposed change should be provided, with all members given an opportunity to raise questions within the bounds of normal parliamentary procedure; and (4) a vote by the members of the incumbent labor organization on the question should be taken by secret ballot, with the ballot clearly stating the change proposed and the choices inherent therein. Montrose, 4/ASLMR at 860. The Regional Director did not specifically find that the Montrose procedures were followed by Local R5-107. The Regional Director stated, however, that her investigation disclosed the following facts: 1. The National Office of NAGE mailed a notice to the entire membership of Local R5-107, announcing a special meeting. 2. The sole subject of the special meeting was the proposed merger with Local R5-120. 3. The special meeting took place at Local R5-107's "regular meeting place(.)" 4. The special meeting was attended by 9 of the 20 members of Local R5-107. 5. The special meeting included discussion of the proposed merger and a question-and-answer period. 6. A vote was taken by secret ballot, which clearly stated the purpose of the vote. 7. The membership voted unanimously for the merger. Regional Director's Decision at 2. The Activity disputes the first, fourth, and sixth findings. First, the Activity "suggests" that a posted notice was the only information given to Local R5-107's membership about the special meeting. In addition, the Activity asserts that (1) the Regional Director erred in stating the number of Local R5-107's members, and (2) the merger vote was taken on slips of paper. Finally, the Activity claims that, contrary to the Regional Director's finding that Local R5-107 did not have any pending grievances being processed, there is one on-going grievance. The Activity has not demonstrated that any of these contested findings were clearly erroneous. Moreover, the Activity has not demonstrated that, even if the findings were clearly erroneous, the findings (1) related to "substantial" factual issues, and (2) prejudicially affected its rights. We note, in this regard, that although the Activity alleges that the method of voting did not comply with "established Rules and Regulations(,)" the Activity has not (1) specified the regulations to which it refers, or (2) explained how its assertion that established regulations were violated is consistent with its position that "mergers are not even talked about" in the Authority's Regulations. Application for Review at 2, 4. Finally, there is nothing in the record of this case to show that the number of members of Local R5-107 or the number, if any, of pending grievances is relevant to any issue before us. The Activity has not established that the Regional Director's finding on substantial issues of fact are clearly erroneous. Therefore, based on those findings, we conclude that the Montrose procedures were properly followed by Local R5-107 in effecting the merger. D. There Has Been No Consolidation of Units The Regional Director specifically found that "the Army National Guard Technicians and the Army National Guard Aviation Technicians will continue to be in two separate bargaining units." Regional Director's Decision at 3 (emphasis in original). We agree with the Regional Director. The consolidation of existing bargaining units is accomplished through procedures which are different from those used in this case. See 5 C.F.R 2422.2(h). There is no evidence in this case that Local R5-120 has sought to consolidate bargaining units. Accordingly, we find that the Activity's arguments concerning the consolidation of units are unfounded. E. Conclusion For the foregoing reasons, we conclude that (1) the Montrose procedures apply to mergers under the Statute, and (2) Local R5-107 complied with those procedures. The Activity has not demonstrated that the Regional Director's decision raises a substantial question of law or policy or that the Regional Director's decision on a substantial factual issue is clearly erroneous. Finally, the Activity's argument concerning the consolidation of bargaining units is inapposite because no consolidation was sought or effected in this case. V. Order The application for review is denied.