36:0480(59)RA - - Overseas Private Investment Corporation and AFGE Local 1534 - - 1990 FLRAdec RP - - v36 p480
[ v36 p480 ]
The decision of the Authority follows:
36 FLRA No. 59
FEDERAL LABOR RELATIONS AUTHORITY
OVERSEAS PRIVATE INVESTMENT CORPORATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER ON APPLICATION FOR REVIEW
July 31, 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 by the Agency under section 2422.17(a) of the Authority's Rules and Regulations seeking review of the Regional Director's (RD) Decision and Order. The RD dismissed the petition, in which the Agency contended that it had a good faith doubt, based on objective considerations, that the Labor Organization (Union) continued to represent a majority of the employees in the existing unit. The Union did not file an opposition to the application for review.
We grant the application because a substantial question of law or policy is raised because of the absence of, or a departure from, Authority precedent. On review of the RD's decision, we reverse the RD's Decision and Order dismissing the Agency's petition and order the RD to take appropriate action consistent with this decision.
On October 4, 1971, the Union was certified as the exclusive representative for the following unit:
INCLUDED: All professional and non-professional employees of the Overseas Private Investment Corporation, Washington, D.C.
EXCLUDED: All management officials, employees engaged in Federal personnel work in other than a purely clerical capacity, and supervisors and guards as defined in Executive Order 11491.
A collective bargaining agreement covering the bargaining unit became effective on January 11, 1973, for an initial period of 18 months. Thereafter, it was renewed automatically on a year-to-year basis in the absence of notice by either party that they desired to amend or modify the agreement. On July 24, 1989, the Agency filed the petition in the instant case contending that it had a good faith doubt as to the Union's continued majority status. In support of its asserted good faith doubt, the Agency contended that the Union had been inactive for a substantial period of time, that there had been high employee turnover in the bargaining unit since 1971, and that, within the bargaining unit, membership in the Union was very low.
III. The Regional Director's Decision
The Regional Director found that from 1975 until early 1989 the Union did not request to negotiate a new collective bargaining agreement, did not request to negotiate about new conditions of employment resulting from changes in the Agency's operations, did not file grievances, and did not designate union stewards in accordance with the negotiated agreement.(1) The RD stated that during this period, the number of employees on dues check-off dropped to one. The RD determined that beginning in July 1988, the Union has attempted to rebuild its organization, has sought to enforce the provisions of the collective bargaining agreement, and has submitted comments and suggestions concerning revisions that the Agency was making in various personnel regulations. The RD noted that in May 1989 the Union held an internal election and filled the positions of Union Chairperson and Chief Steward and requested to renegotiate the 1973 collective bargaining agreement. At the time of the hearing (October 1989) the RD determined that 2, out of 75, bargaining unit employees were on dues withholding and 4 additional unit employees were paying dues directly to the Union. As to employee turnover, the RD found that, of those employed at the time of the 1971 certification, only three remained employed by the Agency at the time of the hearing.
The RD held that the above factors, considered separately and as a whole, failed "to establish objective considerations sufficient to raise a question concerning representation." RD's Decision at 4. Citing private sector precedent, the RD rejected the Agency's assertion that a low level of dues-paying members or a high degree of turnover supported a conclusion that employees no longer desired to be represented by the Union. The RD countered the Agency's contention that employees had ceased treating the Union as their representative and were ignoring the Union by noting that the evidence did not establish that the employees have "disavowed" the Union. RD's Decision at 5. The RD further found that, although the Union had been inactive prior to July 1988, it had engaged in a number of representational activities subsequent to that date.
Based on his finding that the Agency failed to establish objective considerations necessary to support a good faith doubt that the Union continues to represent a majority of unit employees, the RD dismissed the Agency's petition.
IV. The Application for Review
In its application for review, the Agency contends that the RD's decision raises a substantial question of law or policy because of the absence of Authority precedent and because the decision departs from existing Authority precedent. Specifically, the Agency argues that Authority precedent does not address the issue of whether an election will be ordered where a union seeks to reassert itself as exclusive representative after having abandoned its representational relationship with employees for an extended period of time. Additionally, the Agency argues that Authority precedent does not support the RD's reliance on the absence of evidence that employees have disavowed the Union. The Agency contends that the considerations presented sufficiently demonstrate a good faith doubt as to the continued majority status of the Union and that both precedent and policy support a conclusion that an election should be ordered in this case.
V. Analysis and Conclusions
We conclude that compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review. The Agency's application for review raises a substantial question of law or policy because of the absence of Authority precedent concerning whether: (1) the Union's attempts to reassert itself as a functioning representative sufficiently offset the doubt as to the Union's continued majority status that would reasonably result from a lengthy period of virtually total inactivity; and (2) evidence that employees have expressly disavowed an exclusive representative is necessary to establish a good faith doubt as to the continued majority status of that exclusive representative.
The Authority has not had occasion to issue many decisions concerning petitions that assert a good faith doubt, based on objective considerations, that a currently recognized or certified labor organization represents a majority of employees in the existing unit.(2) Consequently, the precedent on the subject is not well developed, and a statement of the principles on which we will rely in disposing of such questions is appropriate.
We believe that the basic approach used by the National Labor Relations Board (NLRB) in dealing with similar questions is equally appropriate in the Federal sector. As the NLRB stated in Celanese Corp., 95 NLRB 664, 673 (1951), and has applied in subsequent cases:(3)
By its very nature, the issue of whether an employer has questioned a union's majority in good faith cannot be resolved by resort to any simple formula. It can only be answered in the light of the totality of all the circumstances involved in a particular case.
Thus, factors asserted to support a good faith doubt as to majority status must be viewed both in their context(4) and in combination with each other(5) in determining whether such doubt is warranted. An agency filing a petition asserting doubt as to the continuing majority status of an exclusive representative is not required to prove that an actual numerical majority opposes the union.(6) Rather, the agency must only demonstrate objective considerations sufficient to support a conclusion that a reasonable doubt exists that a union continues to represent a majority of employees in an existing unit, or, in other words, that a majority of eligible employees voting in an election on the issue would vote in favor of continuing the union as their exclusive representative.(7)
In this case, the Union was dormant for a period of approximately 10 years. Under Authority precedent, if a petition had been filed during such a state of extended dormancy, an election would have been ordered.(8) See Department of the Interior, National Park Service, Western Regional Office, San Francisco, California, 15 FLRA 338 (1984) (National Park Service).
The RD, however, focused on the Union's attempts since July 1988 to reassert itself as an active representative of the bargaining unit and its efforts to revive employee support. Additionally, the RD rejected Agency contentions that a low level of membership and high employee turnover supported a good faith doubt as to the Union's majority status. In doing so, the RD relied on NLRB precedent holding that membership is voluntary and does not reflect or establish the number of employees who continue to desire representation by the organization.(9) He also relied on precedent holding that a claim of loss of majority is not justified based on employee turnover because it is assumed that new employees will support the exclusive representative in the same ratio as those they have replaced.(10) While we agree that ordinarily the RD's adoption, and reliance on, these principles to dismiss an agency's claims of good faith doubt as to majority status would be warranted, we find that in the circumstances of this case such reliance is misplaced.
Specifically, we find that a recent history of an approximately 10-year period of dormancy gives rise to a serious question concerning whether the Union continues to enjoy majority status. According to the record in this case, during that 10-year period a number of disciplinary actions occurred (Tr. 35, 55), a number of changes in conditions of employment were implemented (Tr. 20-21), and the Agency even ceased distributing copies of the collective bargaining agreement to new employees notwithstanding a contractual requirement that it do so (Tr. 21-22) without any response from or involvement by the Union (Tr. 21, 22 and 35). The doubt about the Union's majority status that would reasonably result from such a hiatus is not offset by sufficient evidence indicating that the Union has retained the support of a majority of employees in the bargaining unit or regained significant support since it began its efforts to reassert itself as an active exclusive representative.(11)
While a low level of membership, standing alone, would not support a doubt as to majority status, neither does it contribute to overcoming the doubt that reasonably results from a lengthy period of virtually total inactivity. Also, we agree that ordinarily it is valid to presume that employee turnover does not justify a good faith doubt because new employees will support the exclusive representative in the same ratio as those they replace. However, the idea that such proportional support will occur is, itself, based on a presumption that in normal circumstances unions will "probably . . . [recruit] . . . a proportionate share of adherents from the new employees." Great Southern Trucking Co. v. NLRB, 139 F.2d 984, 985-86 (4th Cir. 1944). Here, for approximately 10 years the Union did nothing that could reasonably be presumed to attract or recruit adherents from among employees entering the bargaining unit during that period. Thus, the Union's lengthy period of inactivity undermines the otherwise valid presumption that employee turnover does not generally support a good faith doubt about a union's continued majority status.
Additionally, we do not find that evidence that employees have disavowed an exclusive representative is necessary in order to support a good faith doubt as to a union's continued majority status. Although such evidence may be relevant,(12) we do not view it as essential to supporting a good faith doubt in all cases. As noted earlier, there is no "formula" for resolving questions concerning a union's majority status. If other factors presented are sufficient to support a good faith doubt as to a union's continued majority status, a failure to establish that employees have expressly disavowed a union will not, by itself, nullify that doubt. See National Park Service, 15 FLRA 338 (1984) (the Authority found that a good faith doubt existed as to the continued majority status of a union without citing any evidence that employees had disavowed the union).
Based on the totality of the circumstances, we conclude that a reasonable doubt exists as to the Union's continued majority status so as to warrant the conduct of an election.
We stress that our conclusion here is only that a reasonable doubt exists that the Union continues to enjoy majority status and we do not conclude that it does not, in fact, continue to represent a majority of employees in the bargaining unit. That is neither our purpose nor our role. That determination is one that rightfully belongs to the employees in the bargaining unit consistent with the rights granted by the Statute to self-determination, through secret ballot election, in their choice of which, if any, labor organization will represent them exclusively. See 5 U.S.C. §§ 7102 and 7111.(13)
Based on the foregoing, we reverse the RD's decision dismissing the Agency's petition.
VI. Order and Direction of Election
The application for review of the RD's decision is granted and the case is remanded to the RD for appropriate action. An election by secret ballot shall be conducted among the employees in the bargaining unit described earlier herein at the earliest possible date. Eligible to vote are those employees in the bargaining unit who were employed during the payroll period immediately preceding the date of this decision, including employees who did not work during that period because they were out ill, or on vacation, or on furlough, including those in the military service who appear in person at the polls. Ineligible to vote are employees who have quit or were discharged for cause since the designated payroll period and who have not been rehired or reinstated before the election date. Those eligible shall vote on whether or not they desire to be represented for the purpose of exclusive representation by the American Federation of Government Employees, Local 1534, AFL-CIO.
(If blank, the decision does not have footnotes.)
1. The RD's decision states that this period of inactivity commenced in 1975. RD's Decision at 3. The Agency's application states that the Union was "an active representative" from about 1972 to about 1978 and did not lapse into inactivity until the 1978-79 time frame. Application at 4. In our view, it makes no difference to the outcome in this case whether the period of inactivity began in 1975 or 1978-79.
2. The record and our research reveal the following cases. U.S. Department of State, Bureau of Consular Affairs, Passport Services, 35 FLRA 1163 (1990); U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 33 FLRA 482 (1990), Order Denying Motion For Reconsideration and Related Motions and Requests, 34 FLRA 428 (1990); Duluth International Airport, 4787th Air Base Group, Duluth, Minnesota, 15 FLRA 858 (1984); Department of the Interior, National Park Service, Western Regional Office, San Francisco, California, 15 FLRA 338 (1984); National Federation of Federal Employees, Local 1, Independent and Western Regional Office, National Park Service, San Francisco, California, 10 FLRA 502 (1982).
3. For example, Parkview Furniture Mfg. Co., 284 NLRB 947, 968 (1987); Sofco, Inc., 268 NLRB 159 (1983).
4. See, for example, Thomas Industries, Inc. v. NLRB, 687 F.2d 863, 868 (6th Cir. 1982). ("The mere fact that a low percentage of employees utilize automatic check-offs does not necessarily indicate a loss of support for the Union since the check-offs are voluntary. However, a rapid or large decline in the number of check-offs may be indicative of a loss of support.")
5. See, for example, Dalewood Rehabilitation Hospital, Inc. v. NLRB, 566 F.2d 77, 80 (9th Cir. 1977). ("The courts require an assessment of the cumulative force of the combination of factors.")
6. See, for example, NLRB v. Randle-Eastern Ambulance Service, Inc., 584 F.2d 720, 728 (5th Cir. 1978).
7. See 5 C.F.R. § 2422.18(c) ("An exclusive representative shall be chosen by a majority of the valid ballots cast"). Compare U.S. Department of Interior, Bureau of Indian Affairs, Rosebud, South Dakota, 34 FLRA 67 (1989) (there is no requirement that a specific percentage or number of eligible voters cast ballots in order for an election to be valid).
8. In September 1988 the Agency filed an RA petition asserting a good faith doubt about the Union's continued majority status that was dismissed as untimely filed. Tr. 28, 29 and Jt. Exh. JAX-12.
9. Dalewood Rehabilitation Hospital, Inc. d/b/a Golden State Habilitation Convalescent Center, 224 NLRB 1618 (1976) and Terrell Machine Company, 173 NLRB 1480 (1969).
10. Laystrom Manufacturing Co., 151 NLRB 1482 (1965).
11. Compare Howes Inc., 290 NLRB No. 116 (1988), in which the NLRB found that an 8-month period of inactivity on the part of a union did not support a good faith doubt as to majority status because, under the circumstances, such inactivity was not indicative of a loss of support for the union among unit employees. While an 8-month period of inactivity may not have a significant impact on the support that a union enjoys, it is very difficult to dismiss, absent indications to the contrary, the likelihood that a 10-year period of inactivity would undermine the support that a union enjoys in a bargaining unit.
12. We do not mean to suggest that an agency may engage in activity that would constitute an unfair labor practice in order to obtain such evidence and we express no view here as to what activities in this regard could constitute an unfair labor practice.
13. We are aware that the representative of the Union testified that employees feared retaliation or a negative impact on their careers if