46:1468(141)RP - - DOD, National Guard Bureau, NY NG, Division of Military and Naval Affairs, Latham, NY and National Federation of Civilian Technicians and ACT - - 1993 FLRAdec RP - - v46 p1468
[ v46 p1468 ]
The decision of the Authority follows:
46 FLRA No. 141
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
NEW YORK NATIONAL GUARD
DIVISION OF MILITARY AND NAVAL AFFAIRS
LATHAM, NEW YORK
NATIONAL FEDERATION OF CIVILIAN TECHNICIANS
NEW YORK STATE COUNCIL
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
ORDER DENYING APPLICATION FOR REVIEW
February 23, 1993
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 National Federation of Civilian Technicians (NFCT), under section 2422.17(a) of the Authority's Rules and Regulations, seeking review of the Regional Director's Decision and Order on Petition for Amendment of Certification. The Association of Civilian Technicians, Inc. (ACT) filed an opposition to the application for review.
The Regional Director determined that the amendment of certification petition was not appropriate in the circumstances of this case. Accordingly, he dismissed the petition. For the reasons that follow, we conclude that NFCT has not demonstrated that review of the Regional Director's decision is warranted. Therefore, we will deny the application for review.
II. Background and Regional Director's Decision
On May 26, 1970, ACT was certified as the exclusive representative of a unit consisting of employees of the Division of Military and Naval Affairs in New York.(1) Following the certification, the Association of Civilian Technicians, New York State Council (NYACT) assumed the functions of the exclusive representative for the New York bargaining unit. These functions include negotiating collective bargaining agreements, filing unfair labor practices, invoking arbitration, and requesting the services of the Federal Mediation and Conciliation Service and the Federal Service Impasses Panel. On February 29, 1992, the executive board of NYACT adopted a resolution to disaffiliate from ACT and to affiliate with the newly formed NFCT. On March 20, 1992, a secret ballot vote was held at the membership meetings of twelve of the thirteen local chapters of NYACT. One chapter declined to vote on the resolution. The resolution was approved by a majority of the employees casting ballots and the New York State Council, National Federation of Civilian Technicians (NYNFCT) was established.
Before the Regional Director, ACT argued that NFCT lacked standing to petition to amend a certification held by ACT. Further, ACT argued that NFCT did not conduct the vote on the change of affiliation in accordance with the minimum due process standards required by Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974), review denied, 3 FLRC 259 (1975) (Montrose). NFCT argued that the vote was conducted in conformance with Montrose. NFCT also stated that the effect of the vote "was to disaffiliate the New York State Council from ACT and to affiliate with a new organization, NCFT [sic]." Regional Director's decision at 4.
Citing Union of Federal Employees and National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Corps of Engineers, St. Louis District, St. Louis, Missouri, 41 FLRA 562 (1991) (UFE) and U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico and National Council of Bureau of Indian Affairs Educators, 34 FLRA 428 (1990) (BIA), the Regional Director found that a change in affiliation may be accomplished through an amendment of certification petition if: (1) union members have had an adequate opportunity to vote on the change in affiliation; and (2) there is evidence of substantial continuity between the union existing before and after the change in affiliation. The Regional Director noted that there was evidence to support a finding of substantial continuity in this case, but that the circumstances presented here differed from the cited cases in a significant way.
The Regional Director found that in this case, unlike UFE and BIA, the local union that was attempting to disaffiliate from a national union was not the certified representative of the employees. The Regional Director found, in this regard, that ACT, and not NYACT, held the certification as the exclusive representative of the New York unit. The Regional Director further found that ACT was a viable organization that was willing and able to represent the employees in the New York bargaining unit. Therefore, the Regional Director determined that "the attempt by NYACT to disaffiliate from ACT and to affiliate with [NFCT] represents more tha[n] a simple change in the name and affiliation of the exclusive representative[;]" rather, it is "an attempt by the state level council to sever ties with the certified exclusive representative and affiliate with a new national organization." Regional Director's decision at 5. The Regional Director stated that "[s]ince ACT remains a viable organization and is opposing the petitioned-for amendment, NYACT's disaffiliation attempt represents a schism in the exclusive representative which substantially disrupts representational continuity." Id. In the Regional Director's view, the circumstances presented in this case raised a question concerning representation that is appropriate for resolution through a representation election rather than through an amendment of certification proceeding. Accordingly, the Regional Director dismissed the petition.
III. Positions of the Parties
A. Application for Review
In its application, NFCT asserts three grounds for review. First, NFCT claims that the Regional Director's finding that there was "not a continuity of representation" between NYACT and NYNFCT is a departure from Authority precedent. Application for Review at 2. Second, NFCT contends that the Regional Director introduced factual issues and information that were not available to NFCT and to which NFCT did not have an opportunity to respond, thereby resulting in prejudicial error. Third, NFCT maintains that the Regional Director's finding that NYACT was not the certified representative is clearly erroneous and, as such, prejudiced NFCT's rights.
In support of its application, NFCT contends that the Regional Director's conclusion that ACT, and not NYACT, is the certified exclusive representative is not supported by the facts. NFCT asserts that the Regional Director ignored his own findings that NYACT has performed all the functions of a certified bargaining representative for a period of 22 years, and based his conclusion solely on the Certification of Representative issued to ACT in 1970 by the Assistant Secretary of Labor for Labor-Management Relations. In this regard, NFCT claims that NYACT has served as the bargaining representative, and has been so recognized by the Authority, and that the Regional Director's decision "elevates form over substance and 'rests on a meaningless technicality which totaly [sic] ignores the desires of the employees involved and [National Labor Relations] Board precedent in this area.'" Id. at 5, quoting Quemetco, Inc., 226 NLRB 1398, 1398 (1976). NFCT also cites the Regional Director's finding that there are thirty "certificates of recognition" for ACT nationwide, of which only three relate to state-level organizations. Application for Review at 5. NFCT contends that if the Regional Director's finding that ACT is the certified representative is upheld, ACT bargaining unit members in New York would not be able to change their affiliation or decertify ACT unless they could obtain the support of ACT bargaining unit members in the twenty-seven states whose certifications are also held by ACT.
NFCT also claims that the Regional Director relied on evidence that was not available to NFCT to support the finding that ACT is the certified representative of the bargaining unit. NFCT points to a finding made by the Regional Director, in a footnote to his decision, that there were four certifications issued to ACT in 1969, prior to the certification issued for the New York unit in 1970. NFCT claims that it has additional evidence that would establish that ACT was incorporated under the laws of the state of New York prior to ACT's existence in any other state. NFCT requests that this case be remanded for an evidentiary hearing, although it argues that there are sufficient facts in the record to permit the Authority to overturn the Regional Director's decision.
NFCT further contends that the Regional Director created a per se rule that essentially prohibits "a division or local of a national union [from] seek[ing] to disaffiliate and form a small independent." Id. at 10. According to NFCT, the tests employed by either the Authority or the National Labor Relations Board for determining whether substantial continuity exists could not be applied in this case under the Regional Director's rationale. For example, NFCT asserts that if ACT is viewed as the certified representative, the identity of local officers and the identity of representatives negotiating and signing collective bargaining agreements could never be the same because ACT itself does not have local officers and does not negotiate or sign collective bargaining agreements. NFCT claims that if, instead, NYACT is viewed as the "pre-affiliation Union," the Regional Director correctly concluded that there is a substantial continuity between NYACT and NYNFCT. Id. at 11.
In its opposition, ACT contends that the application for review should be denied because NFCT's arguments constitute mere disagreement with the Regional Director's findings and conclusions. ACT maintains that the Regional Director properly concluded that ACT was the certified representative and, further, that because it opposed the amendment of certification, a question of representation was raised. In addition, ACT claims that the Regional Director's decision did not depart from Authority precedent and that NFCT failed to provide any evidence to support its contention that the Regional Director erred in his conclusion.
ACT also contends that there is no basis for NFCT's argument that the Regional Director raised new factual issues and relied on information unavailable to NFCT at the time the petition for amendment of certification was filed. ACT asserts that the crucial fact that ACT is the certified representative was not disputed by NFCT. Moreover, ACT argues that it was not clearly erroneous for the Regional Director to conclude that NYACT was not the certified representative. While acknowledging that NYACT may have conducted certain representational activities, ACT claims that such activities do not affect ACT's status as the certified representative. Rather, ACT maintains that NYACT "is an arm of ACT which was established by the National Union to carry out ACT's functions in New York." Opposition at 3. According to ACT, it did not and could not have ceded its status as the certified representative to NYACT without appropriate proceedings before the Department of Labor or the Authority. Accordingly, ACT contends that the application for review should be dismissed.
IV. Analysis and Conclusions
We conclude that NFCT has not established compelling reasons for granting the application for review under section 2422.17 of the Authority's Rules and Regulations. Accordingly, we will deny the application for review.
Starting first with NFCT's claim concerning the Regional Director's determination that ACT was the certified representative, we find that NFCT has not shown that that finding is clearly erroneous. The Regional Director based his finding on a certification of representative issued by the Assistant Secretary of Labor for Labor-Management Relations in 1970. That certification establishes that ACT, as the petitioner, was certified as the exclusive representative of the employees in the bargaining unit. Noteworthy is the fact that NFCT does not dispute the finding that ACT holds certification as the exclusive representative of those employees. Rather, NFCT contends that by performing representational functions in the bargaining unit during the 22-year period since ACT was certified, NYACT has become the bargaining representative. While NFCT may be correct in asserting that NYACT has been functioning as the bargaining representative, it is clear that NYACT was not certified as the exclusive representative of the employees. In addition, there is no evidence indicating that ACT amended or relinquished its certification as the exclusive representative after it was issued or that any other actions were taken to cause NYACT to become the exclusive representative. Consequently, we find that the Regional Director's determination that ACT is the certified representative is supported by the evidence and, as we stated above, is not clearly erroneous.
Further, we reject NFCT's claims that the Regional Director's finding that ACT is the certified representative "elevates form over substance" and is too technical a view. Application for Review at 5. The Regional Director correctly determined that the amendment of certification petition was not appropriate because NYACT, which was seeking to disaffiliate, was not the certified representative. As the Regional Director found, the attempt by NYACT to disaffiliate from ACT and affiliate with NFCT constitutes more than a mere change in the name and affiliation of the certified representative. Rather, NYACT is attempting to terminate its relationship with the certified representative.(2) Such conduct is not properly accomplished in an amendment of certification petition.
We further find that the Regional Director did not depart from Authority precedent in making his findings regarding continuity of representation and did not establish a per se rule, as alleged by NFCT. The Regional Director correctly cited and applied Authority precedent in finding that this case was factually different from prior Authority decisions. The Regional Director also correctly found that an amendment of certification petition was not appropriate in this case.
Finally, we reject NFCT's claim that the Regional Director improperly considered evidence to which NFCT did not have the opportunity to respond in finding that ACT is the certified representative. The source of the information noted by the Regional Director, concerning certifications issued to ACT prior to 1970, was the 1991 edition of a publication entit