35:0099(13)RA - - DOI, Bureau of India Affairs, Navajo Area, Gallup, NM and Albuquerque and Washington, DC and National Council of BIA Educators/AFT - - 1990 FLRAdec RP - - v35 p99



[ v35 p99 ]
35:0099(13)AC
The decision of the Authority follows:


35 FLRA No. 13

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

(33 FLRA 482)

(34 FLRA 428)

ORDER DENYING MOTION FOR RECONSIDERATION

March 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a motion by the Department of the Interior (Interior) for reconsideration of the Authority's denial of Interior's motion for reconsideration and related motions and requests in U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 34 FLRA 428 (1990) (Bureau of Indian Affairs III). While Interior's motion was pending before the Authority, Interior filed: (1) a supplemental brief in support of its motion for reconsideration; and (2) a request to file additional documents and citation of authority. The National Council of Bureau of Indian Affairs Educators (NCBIAE), affiliated with the American Federation of Teachers (AFT), filed an opposition to Interior's motion for reconsideration and supplemental brief.

For the reasons set forth below, we deny Interior's motion for reconsideration.

II. Background

In U.S. Department of Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 33 FLRA 482 (1988) (Bureau of Indian Affairs II), the Authority denied the applications for review of the Regional Director's Supplemental Decision and Order which granted the AC petitions filed by NCBIAE/AFT in Case Nos. 6-AC-70005 and 6-AC-70006 and dismissed the RA petitions filed by Interior in Case Nos. 6-RA-70001, 6-RA-70002 and 6-RA-80001.

After the Authority issued its decision in Bureau of Indian Affairs II, Interior filed a timely motion for reconsideration of that decision. Interior argued that extraordinary circumstances warranted reconsideration of the Authority's decision because the Authority: (1) ignored critical issues raised by Interior before the Regional Director and the Authority; (2) departed from precedent without an explanation or rationale; and (3) refused to require the Regional Director to hold a hearing to resolve factual issues and disputes.

While its previous motion for reconsideration was pending before the Authority, Interior submitted: (1) a request to file a supplemental response to its motion for reconsideration; (2) a motion to reopen the case based upon new evidence; (3) a motion to reopen the case based upon new evidence and to hold its motion for reconsideration in abeyance until receipt of a decision of an administrative law judge; (4) a response to the General Counsel's response to Interior's earlier motion; (5) additional attachments to its motion for reconsideration; and (6) a renewal of its request for a stay and remand of the cases for a hearing.

In Bureau of Indian Affairs III, we denied Interior's motion for reconsideration and the related motions and requests. We examined the findings made by the Regional Director in his Supplemental Decision and Order, as well as in his original decisions, and affirmed those findings. We also addressed Interior's allegations and arguments in its motion for reconsideration and additional related motions and requests and found them to be without merit. We concluded that Interior had not established "extraordinary circumstances" warranting reconsideration of the Authority decision in Bureau of Indian Affairs II and, in addition, that Interior's other motions should be denied.

III. Interior's Motion for Reconsideration

Interior now asserts that: (1) the Regional Director did not conduct any investigations in the above-named cases; (2) the official file is devoid of any record developed by the Regional Director; (3) the Authority did not consider critical facts contained in an affidavit submitted in connection with its Motion to Reopen Case and to Hold Motion for Reconsideration In Abeyance; (4) the Authority misapplied the Supreme Court's decision in NLRB v. Financial Institution Employees of America, Local 1182, 475 U.S. 192 (1986) (Financial Institution); (5) the Authority did not properly apply the procedures for changing the affiliation of an exclusive representative set forth in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 859 (1974), review denied, 3 FLRC 259 (1975), and adopted by the Authority in Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987); (6) the Regional Director failed to consider the indicia of representation for the Albuquerque and Navajo Area units separately; and (7) there are extraordinary circumstances which warrant reversal of the Authority's decisions.

While Interior's motion for reconsideration was pending before the Authority, Interior filed a supplemental brief asserting that the Authority should reconsider its decision in Bureau of Indian Affairs III in light of a recent decision of the United States Court of Appeals for the Ninth Circuit in Seattle-First National Bank v. National Labor Relations Board, 892 F.2d 792 (9th Cir. 1989) (Seattle-First National Bank). According to Interior, Seattle-First National Bank involved the issue of whether there was sufficient continuity of representation after a change in affiliation. Interior states that the court in Seattle-First National Bank reviewed the evidence taken at a National Labor Relations Board (NLRB) hearing on the issue.

Interior asserts that the Regional Director's refusal to hold a hearing in the instant case violates section 2422.4(f)(4) and (5) of the Authority's Rules and Regulations, and that the failure to hold a hearing is "exacerbated by the fact that the Regional Director conducted no investigation whatsoever and the certified file is devoid of any record allegedly developed by the Regional Director." Supplemental Brief at 2. Interior also claims that the court in Seattle-First National Bank found that whether a question of representation exists is a question of fact. Interior argues that because the Regional Director refused to hold a hearing in this case and did not conduct an investigation, no evidentiary record has been developed on which the Authority can make an appropriate determination on the question of representation. Based on Seattle-First National Bank, Interior also disputes the Regional Director's findings that a continuity of representation existed before and after the change in affiliation. Interior claims that neither the Regional Director nor the Authority made specific findings on the court-sanctioned criteria because there was no evidentiary record on which to make those findings.

After Interior filed its supplemental brief in support of its motion for reconsideration, Interior filed a request to file additional documents and citation of authority "under 5 CFR 2429.5 (Official Notice) and 2429.6 (Other Documents)." Request at 1. Interior argues that findings as to continuity of representation must be made with respect to the change in affiliation under the criteria outlined in Seattle-First National Bank. In support of its position, Interior submitted a copy of the NLRB's decision in Western Commercial Transport, 288 NLRB No. 27 (1988).

IV. NCBIAE/AFT's Opposition to Interior's Motion for Reconsideration

NCBIAE/AFT contends that Interior's "latest motion for reconsideration and its supplemental brief do not present any new issues that the Authority has not already carefully considered and rejected." Opposition at 2. NCBIAE/AFT further contends that Interior has not demonstrated that there are "extraordinary circumstances" for reconsideration and that Interior "is continuing to bargain in bad faith by admittedly not recognizing NCBIAE/AFT as the union holding exclusive recognition." Id.

NCBIAE/AFT relies on News/Sun Sentinel Company v. NLRB, 890 F.2d 430 (D.C. Cir. 1989) (News/Sun Sentinel Company), where the court noted that the two criteria used by the NLRB to determine whether organizational changes, such as affiliations, affect the bargaining status of unions are: (1) whether replacement by the successor union disrupts the bargaining relationship established by its predecessor; and (2) whether election procedures meet minimal standards of "due process" so that employees' true desires are accurately reflected. Id. at 3. NCBIAE/AFT asserts that the court also: (1) held that the party challenging an organizational change has the burden of proving a claim that the change resulted in a discontinuity of representation; and (2) sustained the use of a mail ballot to determine employees' sentiments as to a proposed organizational change as long as the procedures are not so lax or irregular as to negate the validity of the election. Id. at 3-4.

NCBIAE/AFT asserts that the decision in Seattle-First National Bank does not support Interior's request for reconsideration. NCBIAE/AFT notes that the court in Seattle-First National Bank discussed the fact that industrial stability would be undermined by allowing employers to respond to ordinary affiliation changes by refusing to bargain with a duly elected union. In addition, NCBIAE/AFT contends that "[Interior's] flagrant unfair labor practices have made it impossible for any fair election to be conducted[.]" Id. at 5.

NCBIAE/AFT concludes that Interior's latest motion for reconsideration should be dismissed and the "Authority should also make it clear that its decision is final and that it will not accept any further motions from the Agency in regard to the above case." Id.

V. Analysis and Conclusion

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish "extraordinary circumstances" to move for reconsideration of a decision of the Authority. We conclude that Interior's instant request for reconsideration does not establish "extraordinary circumstances" within the meaning of section 2429.17.

Interior disagrees with our decision in Bureau of Indian Affairs III. Interior does not, however, raise issues that we have not considered previously. We will not repeat all of those arguments and our analyses of them here. In particular, Interior's arguments concerning the Court's decision in Financial Institution Employees as well as the application of the Montrose criteria were fully addressed in our decision and we find no reason to address them again. We note the following, however.

First, there is no merit in Interior's argument that the Regional Director violated section 2422.4(f)(4) and (5) of our Regulations. Section 2422.4(f) provides as follows:

(f) The Regional Director shall make such investigation as the Regional Director deems necessary and thereafter shall take action which may consist of the following, as appropriate:

(1) Approve an agreement for consent election in an agreed-upon appropriate unit as provided under § 2422.7;

(2) Approve a withdrawal request;

(3) Issue a Decision and Order dismissing the petition;

(4) Issue a notice of hearing; or

(5) Issue a Decision and Order where the Regional Director determines, based upon a stipulation by the parties, that no material issue of fact exists.

Section 2422.4(f) does not determine the extent to which an investigation must be conducted and does not require a particular type of investigation. Rather, the investigation required by section 2422.4(f) will be such as the Regional Director deems necessary. Further, section 2422.4(f)(4) and (5) does not require the Regional Director to conduct a hearing, absent a stipulation of facts by the parties. See Bureau of Indian Affairs II, 33 FLRA 482, 491. Rather, section 2422.4(f) plainly states that a Regional Director "shall take action which may consist" of one of the actions listed. (Emphasis added.) We find, therefore, no basis on which to conclude that the Regional Director violated section 2422.4(f) of our Regulations.

Second, we find no merit in Interior's arguments that the official file is devoid of any record developed by the Regional Director and that the Regional Director made no specific findings on which to base his decision. The record consisted of documents submitted by NCBIAE with its AC petitions, including, among other things, the original certifications in the Navajo and Albuquerque Area units and the results of the affiliation election conducted by the League of Women Voters, as well as the documents submitted by Interior with its RA petitions. Further, the Regional Director clearly set out, in both his original decisions and his supplemental decision, the rationale for his decisions.

Third, we reject Interior's argument that critical information included in an affidavit attached to one of its motions was not considered by the Authority. As noted in Bureau of Indian Affairs III, the Authority considered the affidavit and found that even if the allegations in it were true, they were irrelevant to the issue of whether NCBIAE followed the proper procedures in changing its affiliation.

Fourth, we reject Interior's argument that the Regional Director did not consider the indicia of representation for the Albuquerque and Navajo Area units separately. It is clear from the Regional Director's decisions in Case Nos. 6-RA-70001, 6-RA-70002 and 6-RA-80001 that the Regional Director considered each unit separately. The Regional Director discussed the representational factors as they applied to each unit and found that each unit continued to be viable.

Fifth, we reject Interior's argument that the recent decision in Seattle-First National Bank requires us to remand the case to the Regional Director to hold a hearing. As discussed above, and in previous decisions, our Regulations did not require the Regional Director to hold a hearing in this case. Further, the court's conclusion in Seattle-First National Bank that the NLRB properly found continuity of representation after a change in affiliation does not warrant reconsideration of the Regional Director's finding that "there is a substantial continuity between NCBIAE before and after the change in affiliation." Bureau of Indian Affairs III, 34 FLRA at 447. Interior's assertion that "neither the Regional Director nor the Authority made any specific findings . . . to determine if there was a continuity in representation" is unfounded. Supplemental Brief at 3.

Finally, we note that Interior has filed numerous motions, submissions and arguments challenging the decisions of the Authority and the Regional Director concerning NCBIAE's change in affiliation from NEA to AFT. We have carefully considered and ruled on each of Interior's claims. The issues concerning NCBIAE's change in affiliation from NEA to AFT and the continued viability of NCBIAE/AFT have been litigated to the fullest extent possible. We will not, therefore, entertain further motions or arguments by Interior on these issues. We note, in this regard, the court's statement in Seattle-First National Bank:

When lack of a union majority, or as in this case, lack of continuity, is the asserted basis for a refusal to bargain, delay becomes the basis of an argument that there ought to be more delay. To paraphrase what this court said in [NLRB v. L.B. Foster Co., 418 F.2d 1 (9th Cir. 1969)], "When will it stop?" We stop it here. We decline to expand the record before this court or to remand.

Seattle-First National Bank, at 796.

Interior's motion for reconsideration is denied. The Authority's decision in Bureau of Indian Affairs II, for which reconsideration was denied in Bureau of Indian Affairs III, is final.(*/)

VI. Decision

Interior's request for reconsidera