34:0946(157)RO - - Transportation, Coast Guard Finance Center, Chesapeake, Virginia and AFGE Local 22 - - 1990 FLRAdec RP - - v34 p946



[ v34 p946 ]
34:0946(157)RO
The decision of the Authority follows:


34 FLRA No. 157

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF TRANSPORTATION

U.S. COAST GUARD FINANCE CENTER

CHESAPEAKE, VIRGINIA

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 22

(Union/Petitioner)

3-RO-90010

DECISION AND ORDER ON APPLICATION FOR REVIEW

February 23, 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 on behalf of the Activity by the U.S. Coast Guard (Coast Guard or Agency) under section 2422.17(a) of the Authority's Rules and Regulations seeking review of the Regional Director's Decision and Direction of Election. The Regional Director found that a unit of all professional and nonprofessional employees employed by the Activity constituted an appropriate bargaining unit and that an immediate election was warranted. The Petitioner did not file an opposition to the application for review.

We grant the application because: (1) a substantial question of law or policy is raised because of the absence of Authority precedent; and (2) the Regional Director's erroneous decision on a substantial factual issue prejudicially affects the rights of a party. On review of the Regional Director's decision, we affirm the Regional Director's Direction of Election and order the Regional Director to take appropriate action consistent with this decision.

II. Background

In February 1989, the Agency announced the implementation schedule for its plan to establish the Activity in Chesapeake, Virginia, by consolidating the accounting operations of the Atlantic Area District Offices, the Coast Guard Academy, and the Coast Guard Headquarters.

On June 26, 1989, the Union filed a petition to represent a unit of all professional and nonprofessional employees of the Activity.

On July 2, 1989, the Activity commenced operations. The initial complement consisted of approximately 25 employees, previously represented by the Union, who were reassigned from the Agency's Fifth District Office in Portsmouth, Virginia.

At the time of the hearing on September 20, 1989, the Activity's work force had expanded to 40 employees working in 7 of the 8 planned job classifications. This work force constituted 33 percent of the expected work force of 119 at the full operating level. The Coast Guard expected the Activity to have 68 employees working in virtually all job classifications by October 1989. The Regional Director found that the Coast Guard projected approximately 88 employees to be working in all the job classifications by the end of January 1990.(*) These employees constituted 57 percent and 74 percent, respectively, of the expected full complement of employees. The Coast Guard expected the Activity to be at the full operating level by October 1990.

III. Regional Director's Decision

On October 30, 1989, the Regional Director issued his Decision and Direction of Election. The Regional Director found that, at the time of the hearing, the employee complement at the Activity constituted a representative and substantial segment of the ultimate complement of employees in the unit sought by the Petitioner. The Regional Director also found, based on the stipulation by the parties, that the unit sought was appropriate and directed an election in a unit of:

All professional and nonprofessional employees employed by the U.S. Coast Guard Finance Center at Chesapeake, Virginia, but excluding all management officials, supervisors, and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).

IV. Application For Review

On December 28, 1989, the Coast Guard filed an application for review on behalf of the Activity. The Coast Guard contends that the Regional Director: (1) failed to provide a basis for his determination that the showing of interest was adequate, and that such failure resulted in prejudice to the Agency; (2) prejudiced the rights of employees by disenfranchising the employee complement not yet on duty at the Activity of their right to determine if they wish to be represented by a union and to vote for a union of their choice; (3) failed to follow the parties' stipulation excluding temporary employees from the claimed unit; and (4) failed to ensure that the Union provided the Agency with a copy of its constitution and by-laws.

V. Analysis and Conclusions

We conclude that compelling reasons exist within the meaning of section 2422.17(c) of our Rules and Regulations for granting the application for review. We grant the Coast Guard's application for review on the following grounds: (1) a substantial question of law or policy is raised because of an absence of Authority precedent concerning the criteria to be considered in determining whether or when to hold an election in an expanding unit; and (2) the Regional Director's decision on a substantial factual issue concerning the exclusion of temporary employees is clearly erroneous and prejudicially affects the rights of a party. However, we conclude that the Agency's arguments concerning: (1) the adequacy of the showing of interest; (2) the right of the employees to vote for a union other than the Petitioner; and (3) the Regional Director's failure to ensure that the Union provided the Agency with a copy of its constitution and by-laws do not establish bases for reviewing the Regional Director's decision.

A. Challenging the Adequacy of the Showing of Interest

Section 7111(b)(1) of the Statute states that the Authority shall investigate a petition filed alleging that "30 percent of the employees in the appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative." A petition for exclusive recognition "shall be accompanied by a showing of interest of not less than thirty percent (30%) of the employees in the unit claimed to be appropriate." 5 C.F.R. § 2422.2(a)(9). The requirement that a showing of interest be made serves an administrative purpose in helping to avoid unnecessary expenditure of time and funds where there is no reasonable assurance that a genuine representation question exists and prevents the parties from abusing the Authority's processes. North Carolina Army National Guard, Raleigh, North Carolina, 34 FLRA No. 71, slip op. at 7 (1990). The question of union support is conclusively decided by the actual secret ballot election. NLRB v. Metro-Truck Body, Inc., 613 F.2d 746, 750 (9th Cir. 1979).

The Regional Director found that the Union had made an adequate showing of interest in the unit sought by the Petitioner. A Regional Director's determination of the adequacy of the showing of interest is administrative in nature and is not subject to collateral attack at a unit or representation hearing. North Carolina Army National Guard, Raleigh, North Carolina, 34 FLRA No. 71, slip op. at 7 (citing 5 C.F.R. § 2422.2(f)(1)). A challenge to the adequacy of a showing of interest is authorized only under limited circumstances. If a Regional Director dismisses a petition or denies intervention, an application for review of the determination regarding the adequacy of the showing of interest may be filed with the Authority. Id. In the case before us, the Regional Director did not dismiss the petition or deny intervention, but directed that an election be held. Consequently, the Agency's application for review of the Regional Director's finding that the Union had made an adequate showing of interest is not authorized by our Regulations.

In this connection, we note that the statement in Veterans Administration Medical Center, Brooklyn, New York, 9 FLRA 1090, 1091 (1982), that, under section 2422.2(f)(2) of the Authority's Regulations, "the adequacy of the showing of interest . . . is not subject to challenge beyond the ten day period after the initial date of posting of the Notice of Petition" is in error and is reversed. This statement implies that the adequacy of the showing of interest is subject to challenge during the 10-day period after the initial date of posting of the notice of petition. Our Regulations do not authorize review of the adequacy of the showing of interest during the 10-day period after the initial date of posting of the notice of petition. As stated above, the only circumstances where the adequacy of the showing of interest is subject to Authority review is where a Regional Director dismisses a petition or denies intervention. See 5 C.F.R. § 2422.2(f)(1). We further note that section 2422.2(f)(2) of the Authority's 1982 Regulations, cited in Veterans Administration Medical Center, is essentially the same as our current Regulations: they both concern the validity, not the adequacy, of the showing of interest. Section 2422.2(f)(2) states that: "[a]ny party challenging the validity of any showing of interest . . . must file its challenge with the Regional Director . . . within ten (10) days after the initial date of posting of the notice of petition." In the present case, we note that record does not indicate that the Agency challenged the validity of the showing of interest.

The Agency argues that the Union has not met the burden of providing credible evidence that at least 30 percent of the eligible bargaining unit employees desire to be represented by the Union. In the Activity's view, the showing of interest should have been 30 percent of the Activity's projected full staffing level of 119 rather than 30 percent of the eligible employees employed by the Activity at the time the Union filed its petition. The Regional Director found that the Union "presented an adequate showing of interest in the present unit." Regional Director's Decision at 2 n.2. A petition for exclusive recognition must be accompanied by a showing of interest of not less than (30%) of the employees in the unit claimed to be appropriate for the purposes of exclusive representation. 5 C.F.R. § 2422.2(a)(9); see Office of Hearings and Appeals, Social Security Administration, 16 FLRA 1175, 1176 (1984). Where there are fluctuating operations, the National Labor Relations Board's (NLRB) policy is to require a showing of interest only among those employed at the time the petition is filed. Avondale Shipyards, Inc., 174 NLRB 73 (1969) (citing Trenton Foods, Inc., 101 NLRB 1769, 1770 (1952)). Similarly, in our view, when an agency's operations are expanding, it is also appropriate to require a showing of interest only among those employed at the time the petition is filed. Accordingly, we conclude that the Regional Director was correct in finding that, to be adequate, the showing of interest submitted in the circumstances of this case had to be at least 30 percent of the employees employed in the unit at the time the petition was filed.

B. Providing the Agency With Copies of the Union's Constitution and By-Laws

In support of its application, the Agency contends that the Regional Director's failure to ensure that the Union provided the Agency with copies of the Union's constitution and by-laws is an error which warrants review of the Regional Director's decision. A labor organization seeking exclusive recognition must submit to the agency involved a copy of its constitution and by-laws. 5 U.S.C. § 7111(e); 5 C.F.R. § 2422.2(a)(6). If a question is raised in a representation case concerning section 7111(e), the matter is to be resolved in an appropriate manner administratively by the Regional Director. Defense Logistics Agency, 5 FLRA 126, 128 (1981). Thus, the Union's failure to appropriately submit to the Agency a copy of its constitution and by-laws does not provide a basis for granting review of the Regional Director's decision.

C. Determining When to Hold an Election in an Expanding Unit

1. Authority Precedent

Authority precedent concerning the considerations that should be applied in deciding when it is appropriate to hold a representation election in an expanding bargaining unit is limited to Trident Refit Facility, Bangor, Bremerton, Washington, 5 FLRA 606 (1981). In that case, the Authority directed a representation election in an expanding bargaining unit where it found that the work force was "sufficiently representative" of the ultimate complement of personnel and job classifications. Id. at 608. In Trident Refit, the Authority merely set forth the percentages of the work force and the job classifications of the number of employees and jobs at the fully operational level which were filled at the time of the hearing and found that they were adequate without establishing a standard.

2. Private Sector Precedent

In cases involving the conduct of a representation election in an expanding unit, the NLRB has established the "substantial and representative complement" test. This test requires that an employee complement must be substantial and representative of the skills and types of employees who will ultimately constitute the unit in order for an election to be held. See St. John of God Hospital, Inc., 260 NLRB 905 (1982); Clement-Blythe Companies, 182 NLRB 502 (1970), enforced, 77 LRRM 2373 (4th Cir. 1971). The "substantial and representative complement" test represents an effort to balance "'the objective of insuring maximum employee participation in the selection of a bargaining agent against the goal of permitting employees to be represented as quickly as possible.'" Fall River Dyeing and Finishing Corp. v. NLRB, 482 U.S. 27, 48 (1987) (quoting NLRB v. Pre-Engineered Building Products, Inc., 603 F.2d 134, 136 (10th Cir. 1979)).

Where there is an expanding or contracting bargaining unit, the NLRB has held that conflicting interests and objectives must be balanced to determine the appropriate time for an election. In Fall River Dyeing, the Supreme Court recognized that:

"[t]he [NLRB] must often balance what are sometimes conflicting desiderata, the insurance of maximum employee participation in the selection of a bargaining agent, and permitting employees who wish to be represented as immediate representation as possible. Thus, it would unduly frustrate existing employees' choice to delay selection of a bargaining representative for months or years until the very last employee is on board. Conversely, it would be pointless to hold an election for very few employees when in a relatively short period the employee complement is expected to multiply many times."

Id. (quoting Clement-Blythe, 182 NLRB at 502).

In examining the application of the "substantial and representative complement" test to a given set of facts, the Supreme Court endorsed the method used by the NLRB. In Fall River Dyeing, the Supreme Court stated that:

[i]n deciding when a "substantial and representative complement" exists in a particular employer transition, the [NLRB] examines a number of factors. It studies "whether the job classifications designated for the operation were filled or substantially filled and whether the operation was in normal or substantially normal production." In addition, it takes into consideration "the size of the complement on that date and the time expected to elapse before a substantially larger complement would be at work . . . as well as the relative certainty of the employer's expected expansion."

Id. at 48-49 (citations omitted).

3. Application of Private Sector Precedent

The absence of precedent under the Statute concerning expanding bargaining units makes an analogy to comparable legal developments in the private sector relevant and a useful guide. See Library of Congress v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983), enforcing American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578 (1982). When there are comparable provisions under the Statute and the National Labor Relations Act (NLRA), decisions of the NLRB and the courts interpreting the NLRA have a high degree of relevance to similar circumstances under the Statute. See Library of Congress, 699 F.2d at 1287. While decisions of the NLRB are not controlling in the Federal sector, the Authority appropriately takes into account the experience gained in the private sector. Department of the Navy, Pearl Harbor Naval Shipyard Restaurant System, Pearl Harbor, Hawaii, 28 FLRA 172, 176 n. (1987).

The Agency contends that the Regional Director's decision prejudices the rights of certain employees. The Agency argues that holding an election prior to full staffing of the Activity disenfranchises that segment of the expected ultimate complement of unit employees not yet actually employed at the Activity of their right to determine if they wish to be represented by a union and to vote for a union of their choice. The Regional Director, in citing Trident Refit, stated that the Authority's test for determining whether an election is warranted in an expanding unit is "whether the existing complement of employees in the claimed unit is a sufficiently representative segment of the ultimate complement of personnel and job classifications." Regional Director's Decision at 3. The Regional Director found that the Activity's work force at the time of the hearing constituted 33 percent of the expected complement working in 88 percent of the classifications and that, as of the date of his decision, the Activity expected to have approximately 57 percent of the expected complement working in virtually all job classifications. The Regional Director concluded that the employee complement, both at the time of the hearing and as of the date of his decision, was a "representative and substantial segment of the ultimate complement of employees in the claimed unit." Id.

In our view, the standard of Trident Refit must be expanded and clarified. As the Supreme Court recognized in Fall River Dyeing, the determination of the appropriate time for an election in an expanding unit requires balancing conflicting interests and objectives. The "sufficiently representative" standard used in Trident Refit does not give clear guidance or adequately allow for balancing appropriate interests and objectives. We are persuaded that applying the "substantial and representative complement" test, as approved by the Supreme Court, to determine under the Statute whether or when to hold an election in an expanding unit, will effectuate the purposes and policies of the Statute. The criteria for applying the test are well established and accepted. Those criteria will provide an analytical framework for evaluating and balancing the competing interests and objectives of the Statute in permitting employees to be represented as soon as possible and maximizing employee participation in the election of a collective bargaining representative.

Applying the "substantial and representative complement" criteria set forth in Fall River Dyeing to the circumstances of the present case, we find that: (1) at the time of the hearing on September 20, 1989, the Activity's job classifications and work force were substantially filled and representative, with 88 percent of the job classifications occupied and 33 percent of the expected employee complement on board; (2) at the time of the Regional Director's decision, virtually all job classifications were to be occupied and 57 percent of the expected employee complement was to be on board; and (3) more than 74 percent of the expected complement of employees will be employed in the bargaining unit by the time our decision is issued. The record establishes the relative certainty of the Activity's expected expansion to full staffing and substantially normal operations and production by October 1990. Under these circumstances, we find that there is a substantial and representative employee complement in the bargaining unit which would allow for the direction of an immediate election. To delay the selection of a bargaining representative until there is full staffing would unduly frustrate the existing employees' ability to exercise their choice as to whether they wish to be represented for the purposes of collective bargaining.

D. Providing Employees the Opportunity to Vote for Other Unions

The Agency contends that holding an election now will deprive certain employees of their right to vote for a union of their choice. In its view, employees transferring to the Activity from other Coast Guard bargaining units will not have an opportunity to vote for the unions which are currently the exclusive representatives of such employees.

A labor organization that is the exclusive representative of employees involved in a petition is permitted to intervene in proceedings concerning the petition. See United States Department of the Interior, Bureau of Indian Affairs, Navajo Area Office, Gallup, New Mexico, 34 FLRA No. 75, slip op. at 8-9 (1990) (labor organization seeking to intervene under section 2422.5(a) in a representation proceeding must present all contentions and arguments to the Regional Director). In addition, the FLRA General Counsel's Representation Case Handling Manual sets forth extensive administrative procedures for ensuring that any union considered to have an interest in a petition for exclusive recognition is notified of the filing of such a petition and provided an opportunity to become a party to the proceedings. The record in this case does not indicate that such procedures were not followed. Thus, there is no evidence that the exclusive representatives of employees transferring to the Activity from other Coast Guard bargaining units did not have the opportunity to intervene in this matter. Accordingly, the Agency's contention with regard to the employees' right to vote for a union other than the Petitioner provides no basis for granting review.

E. Excluding Temporary Employees From the Unit

The Agency contends that the Regional Director failed to include in the unit found appropriate the parties' stipulation concerning temporary employees. The record indicates the Hearing Officer accepted the parties' stipulation that the following proposed unit was appropriate for the purpose of collective bargaining under the Statute:

All professional and nonprofessional employees employed by the U.S. Coast Guard Finance Center at Chesapeake, Virginia but excluding all management officials, supervisors and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7) and temporary employees with appointments not to exceed one year.

The Regional Director noted that the "parties stipulated that the proposed unit constitutes a unit appropriate for the purpose of exclusive recognition." Regional Director's Decision at 3. However, the Regional Director inadvertently omitted "and temporary employees with appointments not to exceed one year" from the description of the exclusions from the unit in which he directed an election. We find that the unit description should exclude temporary employees with appointments not to exceed one year, and we will order the Regional Director to take the necessary action to effectuate this finding.

VI. Order

The Regional Director's Direction of Election is affirmed for the reasons set forth above. The Regional Director is directed to take appropriate action in accordance with this decision.




FOOTNOTES:
(If b