35:0172(21)RO - - Veterans Affairs, Washington, DC and Veterans Affairs, Westside Medical Center, Chicago, IL and VA Independent Union and SEIU - - 1990 FLRAdec RP - - v35 p172



[ v35 p172 ]
35:0172(21)RO
The decision of the Authority follows:


35 FLRA No. 21

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, D.C.(1)

(Agency)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

WESTSIDE MEDICAL CENTER

CHICAGO, ILLINOIS

(Activity)

and

VETERANS ADMINISTRATION INDEPENDENT UNION(2)

(Petitioner)

and

SERVICE EMPLOYEES INTERNATIONAL UNION

(Intervenor)

5-R0-80011

(34 FLRA 123)

DECISION AND ORDER ON REVIEW

March 21, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority for review of the Regional Director's decision and order dismissing the petition for certification of representative filed by the Veterans Administration Independent Union (Petitioner). The Petitioner sought to represent a unit of nonprofessional employees at Veterans Administration, Westside Medical Center, Chicago, Illinois, including Veterans Canteen Service Employees, all general schedule guards, and Federal Protection Officers. Service Employees International Union, AFL-CIO, CLC (Intervenor) is the certified exclusive representative of a nationwide consolidated unit of employees of Veterans Administration, Washington, D.C. (Agency), of which the unit sought is an integral part.

The Regional Director found that the Petitioner does not meet the statutory definition of a labor organization, and granted motions by the Agency and the Intervenor to dismiss the petition.

The Petitioner filed an application for review of the Regional Director's decision and order, contending that the decision is arbitrary and capricious, is based upon an erroneous interpretation of law and testimony, and is prejudicial to the Petitioner. We granted review pursuant to the provisions of section 2422.17(c)(1) of the Authority's Rules and Regulations, U.S. Department of Veterans Affairs, Washington, D.C., 34 FLRA 123 (1989), because it appeared 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.

When we granted review, we noted that the parties were permitted to submit briefs on the two issues upon which review was granted. In response, the Petitioner filed a brief and a document, designated as an amendment to its constitution and bylaws, that provides a procedure for the establishment and collection of dues. The Agency filed a brief and a motion to strike Petitioner's submission of new evidence. The Intervenor filed a motion to dismiss the petition as moot and a brief in support of the decision of the Regional Director.

The Authority finds it unnecessary to rule on the motion to strike Petitioner's allegedly newly-submitted evidence in view of the determination we make in this case. We deny the motion to dismiss the petition as moot.

Contrary to the Regional Director, we find that the Intervenor is a labor organization within the meaning of section 7103(a)(4) of the Statute. However, the petition shall be dismissed because the circumstances required for a severance of employees from an existing unit have not been established.

II. Background and Regional Director's Decision

The Petitioner came into being in 1987 or early 1988 and, according to the Regional Director, "seems to have been formed for the purpose of seeking to represent the employees of the VA Westside Medical Center, Chicago, Illinois." Regional Director's Decision at 3. The Regional Director stated that the initial issue to be determined was whether the Petitioner was a labor organization, as defined in section 7103(a)(4) of the Statute. Section 7103(a)(4) states, in pertinent part, that "'labor organization' means an organization . . . in which employees participate and pay dues[.]"

As determined by the Regional Director and supported by the record, the Petitioner's Constitution and Bylaws provides for officers, and there are incumbents in each position. Article III of the Petitioner's Constitution and Bylaws concerns dues, and provides, among other things, that:

. . . members delinquent in dues for three consecutive months shall stand automatically suspended as a member of the Union and from all rights and privileges of such membership except as provided for by law or appropriate authority.

The Constitution and Bylaws empowers the treasurer to receive all monies of the Union and make deposits in banks designated by the president. Further, the treasurer has the obligation to keep a record of the membership and maintain an adequate bookkeeping system.

The Petitioner's president testified that she received no dues monies, but paid dues in cash to the treasurer on a monthly basis. The treasurer, who assumed office in March of 1988, testified that during the period from June to October 1, 1988, he received, from 5 or 6 individuals, 15 to 20 envelopes, with amounts written on the outside, which purported to be dues payments and that such payment of dues was sporadic. No dues form or dues structure was ever formulated for the treasurer to use in dues collection. The treasurer testified that he relayed the unopened envelopes to the individual who was business manager of the Petitioner until September, 1988, and who subsequently became its representative. This former business manager testified that he collected money from many employees who had retained him for representation on an individual basis, along with some money for dues. He stated that the treasurer had given him money for both representation and membership dues. The former business manager did not know how many employees had paid dues, but said he had taken notes regarding the source, date and amount of money received. He further testified that he had assumed responsibility for maintaining the financial records. He was succeeded as business manager by an individual who testified that she never received any payment of dues from anyone, nor ever paid dues herself.

The Regional Director found that the record did not support a finding that the Petitioner had an established dues structure with a uniform rate of dues on a monthly basis. The Regional Director noted that there is little guidance in case law or the legislative history of the Statute concerning section 7103(a)(4). He stated:

[A]t the minimum to meet the [s]tatutory definition, an organizational entity 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. [Decision at 4.]

The Regional Director found that no process exists for the establishment and payment of dues and concluded that because "no procedure or process provided by Petitioner is in existence whereby members can tender money that translates to dues," the Petitioner is not a labor organization within the meaning of the Statute. Id. Accordingly, noting that section 7111(a) requires that an entity must be a labor organization to be accorded exclusive recognition, the Regional Director dismissed the petition.

III. The Intervenor's Motion to Dismiss the Petition as Moot is Denied

In its motion to dismiss the petition, the Intervenor argues that the Petitioner is not presently a labor organization because it allegedly has not filed certain reports with the Assistant Secretary of Labor pursuant to section 7120(c) of the Statute.

Section 7120, "Standards of conduct for labor organizations," provides, among other things, that:

(c) A labor organization which has or seeks recognition as a representative of employees under this chapter shall file financial and other reports with the Assistant Secretary of Labor for Labor Management Relations[.]

The Authority has not had occasion to speak to this issue. In analogous circumstances, in the private sector, the National Labor Relations Board denied a motion to dismiss a petition in a representation matter when the petitioner allegedly had failed to comply with similar requirements of the Labor Management Reporting and Disclosure Act (LMRDA) amendments to the Labor Management Relations Act (LMRA). The Board stated that neither the LMRDA nor the LMRA requires compliance with requirements of the LMRDA as a condition precedent to the filing of a petition. The Wright Line, Inc., 127 NLRB 849 (1960). See also, Betances Health Unit, Inc., 283 NLRB 369, 375 (1987); Terminal System, Inc., 127 NLRB 979, 980 (1960).

Because neither section 7103(a)(4) of the Statute, which defines the term "labor organization," nor section 7120 requires the filing of the reports in question as a condition precedent to filing a petition, we find that a failure to comply with section 7120(c) of the Statute would not render the petition moot. Therefore, the motion to dismiss the petition as moot is denied.

IV. The Intervenor is a Labor Organization Within the Meaning of Section 7103(a)(4) of the Statute

The Regional Director stated that under the Statute a labor organization must, in its "constitution and bylaws or in its formal records and documents," have some reference that provides a process for the payment and recordation of membership dues. Decision at 4.

We find no support in the language of the Statute or the relevant legislative history for such a conclusion. Section 7103(a)(4), as pertinent here, requires only that the organization include employees who "participate and pay dues." A written provision such as would be required under the Regional Director's decision would, at best, merely be evidence as to the existence of a dues structure or method of payment. Although such a written and published statement is to be encouraged as basic, responsible practice, we do not believe that the absence of such a written provision supports a conclusion that employees do not pay dues. We must look to the facts and circumstances of each case to determine whether employees pay dues within the meaning of section 7103(a)(4).

As noted earlier, a labor organization is defined as an organization in which employees participate and pay dues. Section 7103(a)(5) of the Statute provides that "'dues' means dues, fees, and assessments[.]" We interpret this section of the Statute to mean that if employees pay dues or fees or assessments, they will have been deemed to have paid dues in the definitional sense of that section.(3) The question is whether the record establishes that the Petitioner is an organization in which employees pay dues, fees or assessments.

We find, as discussed below, that employees have paid dues to the Petitioner and that, therefore, the Petitioner is a labor organization. However, we note that we would also find a newly-formed organization, such as the Petitioner, to be a labor organization within the meaning of section 7103(a)(4) of the Statute, as long as it had a dues structure, even if informal, even if no money had yet been collected.

The Petitioner's president testified that she paid dues monthly to the treasurer. The treasurer testified that he received 15 to 20 envelopes purported to contain dues payments from 5 or 6 employees. Another official of the Petitioner testified that he received money from employees as their personal representative, and that some of that money also was intended to go toward dues. Thus, employees have tendered money, intended as dues, to officials of the Petitioner who accepted the money for that purpose.

Of course, simply designating a payment as "dues" does not automatically make it such. While the narrow definition might include some or all of such elements as regular, periodic payments of a specific amount required of all members,(4) the term as defined in the Statute is inclusive also of fees and assessments. Thus, in this broad sense, payments intended to support the organization, particularly when evidenced by the employee's designation of the money as "dues," will be considered dues, fees or assessments within the meaning of section 7103(a)(5).

We cannot overlook the fact that the Petitioner is in its formative stages in determining its structure and operations as a labor organization.(5) An entity in this initial organizational stage will not necessarily operate with the degree of formality or precision expected of an established labor organization. Indeed, as previously noted, we would in certain circumstances find such an organization to be a labor organization even if no dues, fees or assessments had yet been collected so long as its intent to do so was established and such future dues payment was not speculative.(6)

We conclude that, based on the record of this case, the Petitioner is a labor organization within the meaning of section 7103(a)(4) of the Statute because it is composed in whole or in part of employees who participate and pay dues, and which has as a purpose the dealing with an agency concerning grievances and conditions of employment.

V. Severance From The Existing Exclusively Recognized Unit Is Not Warranted

The Regional Director made no determination regarding the representation issue raised by the petition in view of his conclusion that the Petitioner was not a labor organization. We must, therefore, determine whether severance of the employees sought to be represented by the Petitioner from the existing unit is warranted.

Absent unusual circumstances, where an established collective bargaining unit continues to be appropriate, a petition seeking to sever employees from an overall unit represented by a labor organization will be dismissed in the interest of reducing the potential for unit fragmentation and, thereby, promoting effective dealings and efficiency of agency operations. Library of Congress, 16 FLRA 429, 431 (1984). The Authority has continued to adhere to this policy requiring "unusual circumstances" to justify severing a group of employees from an existing unit. Department of the Air Force, Columbus Air Force Base, Columbus Air Force Base, Mississippi, 28 FLRA 892 (1987); Department of the Navy, Naval Air Station, Point Mugu, California, 26 FLRA 620, 623 (1987).

The questions raised by the petition, therefore, are whether the existing bargaining unit, which includes the employees sought to be represented by the Petitioner, continues to be appropriate and, if so, whether unusual circumstances exist to justify severance of the employees in the unit sought by the Petitioner. We find that: (1) the existing unit is appropriate; and (2) unusual circumstances do not exist which would warrant severance.

A. The Existing Unit Continues to be Appropriate

The Intervenor was certified as the exclusive representative of the nationwide consolidated unit, which includes the employees sought by the petition here, by the Regional Director of Region III in August 1981. Case No. 3-CU-19. The Petitioner argues that the Intervenor is not properly the representative of the unit employees because the consolidation was effected without an election. However, we note that the consolidation was properly accomplished pursuant to section 7112(d) of the Statute, which provides that units for which an organization is an exclusive representative may be consolidated with, or without, an election.

There is nothing in the record to indicate that the consolidated unit is no longer appropriate or that the employees sought to be severed are no longer part of that unit as a result of any changes since the certification of consolidation. To the contrary, the record indicates that the employees sought share a community of interest and are part of a long-established unit covered by a master agreement with local supplements. We are satisfied that the criteria of section 7112(a)(1) are met, in that employees in the unit continue to share a community of interest, and that the unit continues to promote effective dealings with, and efficiency of the operations of, the Agency.

B. There Are No Unusual Circumstances Which Would Justify Severance

Even when an existing unit remains appropriate, the Authority may find that severance of employees from the unit is justified under certain unusual circumstances. One such circumstance involves the adequacy of representation afforded by the incumbent exclusive representative. The failure of an incumbent to fairly represent the employees sought would give rise to a question of representation concerning the petitioned for unit and justify severance of employees from an existing larger unit which continued to remain appropriate. See, for example, Library of Congress, 16 FLRA 429 (1984). Another unusual circumstance justifying severance has arisen when the character and degree of a reorganization results in the loss of a community of interest between some employees of a unit and the remainder of the unit. See, for example, United States Department of Labor, 23 FLRA 464 (1986).

The record does not demonstrate that the employees sought have not been adequately represented or that their bargaining concerns have been overlooked by the Intervenor. Rather, the record reveals that the Intervenor has filed grievances and unfair labor practice charges on behalf of unit employees, and that it represents unit employees in dealings with the Agency concerning working conditions on both the local and national levels. The record reveals no reorganization or other unusual circumstances which would justify severance.

We conclude that, as the existing unit continues to be appropriate and there are no unusual circumstances which would warrant severance of employees sought to be represented by the Petitioner, the petition must be dismissed.

VI. Order

The petition is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. During the pendency of this case, the Veterans Administration was reestablished as the Department of Veterans Affairs.

2. The Petitioner's name has not been changed.

3. Common sense dictates that section 7103(a)(5) not be read to require payment of dues and fees and assessments. The result of such a reading would be that an organization which had not levied fees and assessments, as well as dues, would not qualify as a labor organization.

4. See, for example, Harold S. Roberts, Roberts' Dictionary of Industrial Relations 161 (1986) and source references cited therein.

5. The Petitioner argued in its brief filed after review was granted that "it is not reasonable to expect a large number of employees to pay dues to a newly[-]formed employees labor organization." Brief at 2. We agree. We note, for example, that payroll deduction of dues is not available to a labor organization at the early stages of its formation. See section 7115(c) of the Statute and section 2422.2(d) of the Authority's Rules and Regulations.

6. In the private sector, this has been recognized when determining whether an entity is a labor organization within the meaning of section 2(5) of the National Labor Relations Act. See, for example, Butler Manufacturing Company, 167 NLRB 308 (1967). See also Betances Health Unit, Inc., 283 NLRB 369, 375 (1987); Advance Industrial Security, Inc., 225 NLRB 151 (1976); Sweetwater Hospital Association, 219 NLRB 803 (