48:0686(71)CA - - Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, NC and AFGE, Local 2065 - - 1993 FLRAdec CA - - v48 p686



[ v48 p686 ]
48:0686(71)CA
The decision of the Authority follows:


48 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

MORALE, WELFARE AND RECREATION DIRECTORATE

MARINE CORPS AIR STATION

CHERRY POINT, NORTH CAROLINA

(Respondent/Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2065

(Charging Party/Union)

AT-CA-20639

AT-CA-20765

_____

DECISION AND ORDER

October 15, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions to the attached decision of the Chief Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions.

The consolidated complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by discontinuing dues withholding, and that it violated section 7116(a)(1) and (5) of the Statute by withdrawing recognition from the Union and refusing to continue to process a grievance filed by a bargaining unit employee.

The Judge concluded that the Respondent violated the Statute as alleged(1) by discontinuing dues withholding and by withdrawing recognition from the Union during the pendency of a question concerning representation (QCR), and that it further violated the Statute as alleged when it repudiated its obligation to arbitrate the grievance.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the Judge's decision and find that no prejudicial error was committed. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

The Respondent argues that the termination of dues withholding and the withdrawal of recognition of the Union, as well as the refusal to arbitrate the grievance, did not occur during the pendency of a QCR and therefore did not violate the Statute. The Respondent relies on the Regional Director's decision and order in a related representation case that issued on February 26, 1992, finding that the AFGE unit was no longer appropriate.(2) The Respondent argues that, under section 2422.16(a) of the Rules and Regulations, a Regional Director's decision and order in a representation matter "shall be final" and that, under section 7105(f) of the Statute and section 2422.16(b) of the Rules and Regulations, the timely filing of an application for review of a Regional Director's decision does not stay the Regional Director's action unless the Authority so orders. The Respondent notes that there was no stay of the Regional Director's action in this case. Therefore, it asserts that its termination of dues withholding, withdrawal of recognition, and refusal to arbitrate a grievance after February 26, 1992, did not violate the Statute. We disagree, and find that a QCR remains pending after a Regional Director's decision until that decision "becomes the action of the Authority" as provided in section 2422.17(f) of the Rules and Regulations.(3)

Under the Statute, the determination of appropriate units is the responsibility of the Authority, in accordance with regulations it prescribes.(4) The Authority has delegated certain responsibilities in that connection to its Regional Directors, as provided in section 2422.17 of its Rules and Regulations. Although the Respondent argues that the statement in section 2422.17(a) that a Regional Director's decision "shall be final" is conclusive regarding whether there is a QCR pending possible Authority action, we disagree. Rather, the regulation, when read in its entirety, yields a different conclusion.

Under the delegation scheme, the Regional Director's decision is final if no further Authority action is sought or taken; however, until the Regional Director's decision "becomes the action of the Authority," the power and duty of the Authority to determine appropriate units has not been fully exercised and has not been finally resolved. See Department of Energy, 12 FLRA 658 (1983), in which the Authority found that an agency committed an unfair labor practice under Executive Order 11491, as amended, when it changed the status quo after a decision of the Assistant Secretary of Labor "but prior to final resolution of the representation issues . . . ." Id. at 660. We note that under the Executive Order, there was a procedure analogous to the procedure followed under the Statute, whereby the Assistant Secretary determined representation issues subject to appeal to the Federal Labor Relations Council.(5) In our view, the Statute must be read in this manner in order to maintain the stability of labor relations that would be threatened if an agency could withdraw recognition from an incumbent labor organization during the period that the legitimacy of such action was pending before the Authority.(6)

The issue before the Authority in the representation matter concerned the continued appropriateness of the units represented by the IAM and the AFGE. The application for review specifically dealt with matters subsidiary to that issue, and therefore, the QCR remained unresolved. Accordingly, we agree with the Judge that the Respondent's discontinuance of dues withholding on April 4, 1992, and its withdrawal of recognition from the Union and refusal to arbitrate the grievance on May 11, 1992, changed the status quo during the pendency of the QCR, and violated the Statute as alleged.(7) In this regard, we conclude that the Respondent was obligated to continue to recognize and deal with AFGE until the Authority issued its Decision and Order on Application for Review in 45 FLRA 281 on June 19, 1992, even though only IAM had requested review of the Regional Director's decision. In our view, it is clear from the record, as well as the Authority's treatment of the issues in deciding the IAM's application for review, that the issues were inextricably intertwined.

Moreover, with regard to the Respondent's refusal to arbitrate the grievance over an employee's February 14, 1992 discharge, we agree with the Judge's conclusion that because the grievance arose before a final determination was made on the unit question, and therefore at a time when the Union still retained its status as exclusive representative, the Respondent was obligated to process the grievance to arbitration. See Nolde Brothers Inc. v. Bakery Workers, 430 U.S. 243 (1977). Indeed, the grievance was filed on February 25, prior to the issuance of the Regional Director's decision finding that the AFGE unit no longer was appropriate. We reject the Respondent's argument that it had no duty to arbitrate after it filed the RA petition because its position that the unit was inappropriate ultimately was upheld. Id. As we stated above, the Respondent was obligated to continue to recognize and deal with AFGE until the Authority issued its Decision on June 19, 1992. Accordingly, we cannot agree with the Respondent's contention that the grievance was not arbitrable. See Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 11 FLRA 486 (1983) (denying exceptions to award finding that grievance of a supervisor was arbitrable because grievance arose while grievant was in a bargaining unit position and vested prior to her promotion to a supervisory position).

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, North Carolina, shall:

1. Cease and desist from:

(a) Refusing to accord appropriate recognition to American Federation of Government Employees, Local 2065, a lawfully designated exclusive representative of its employees, after a reorganization and during the pendency of a representation matter, and refusing to adhere to the terms of its negotiated agreement with the exclusive representative, including the obligation to submit grievances to arbitration and to honor dues withholding arrangements, to the maximum extent possible, until the representation matter is resolved.

        (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

        (a) After a reorganization and during the pendency of a representation matter, continue to recognize any exclusive representative of its employees, and adhere to the terms of any prior collective bargaining agreement, to the maximum extent possible, until the representation matter is resolved.

        (b) Upon request of American Federation of Government Employees, Local 2065, agree to arbitrate the grievance of Ms. Elliott, filed on February 25, 1992.

        (c) Remit to American Federation of Government Employees, Local 2065, those regular and periodic dues which should have been withheld from employees' pay pursuant to section 7115 of the Statute, from the date of discontinuance until June 19, 1992.

        (d) Post at its Cherry Point, North Carolina facilities, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director, Morale, Welfare and Recreation Directorate, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

        (e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Atlanta Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to accord appropriate recognition to American Federation of Government Employees, Local 2065, a lawfully designated exclusive representative of our employees, after a reorganization and during the pendency of a representation matter, and we will not refuse to adhere to the terms of our negotiated agreement with the exclusive representative, including the obligation to submit grievances to arbitration and to honor dues withholding arrangements, to the maximum extent possible, until the representation matter is resolved.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL after a reorganization and during the pendency of a representation matter, continue to recognize any exclusive representative of our employees, and adhere to the terms of any prior collective bargaining agreement, to the maximum extent possible, until the representation matter is resolved.

WE WILL upon request of American Federation of Government Employees, Local 2065, agree to arbitrate the grievance of Ms. Elliott, filed on February 25, 1992.

WE WILL remit to American Federation of Government Employees, Local 2065 those regular and periodic dues which should have been withheld from employees' pay pursuant to section 7115 of the Statute, from the date of discontinuance until June 19, 1992.

________________________________

(Activity)

Date: ___________________ By: ________________________________

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.




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

1. The matter was before the Judge on cross-motions for summary judgment. Although the Judge inadvertently neglected to rule on the motions specifically, his decision in effect granted the General Counsel's motion.

2. In that same decision, the Regional Director also found that a unit represented by the International Association of Machinists and Aerospace Workers, Local 2296, AFL-CIO (IAM) was no longer appropriate. The Authority granted an application for review of the Regional Director's decision filed by the IAM, and upheld the decision as pertinent here in its Decision and Order on Application for Review. 45 FLRA 281 (1992).

3. Section 2422.17 of the Rules and Regulations provides, in pertinent part:

(a) A Regional Director's Decision and Order shall be final: Provided, however, That a party may file an application for review of the Regional Director's Decision and Order with the Authority within sixty (60) days of the date of such action.

. . . .

(f) A Decision and Order of a Regional Director becomes the action of the Authority when:

(1) No application for review is filed within sixty (60) days . . . .

(2) A timely application for review is filed with the Authority and the Authority does not undertake to grant review . . . within sixty (60) days after the date of the filing of the application; or

(3) The Authority denies an application for review . . . .

(g) . . . The granting of an application for review shall not stay the Regional Director's Decision and Order unless otherwise ordered by the Authority. . . .

4. Section 7105(a)(2)(A) of the Statute provides:

(2) The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority--

(A) determine the appropriateness of units for labor organization representation under section 7112 of this title[.]

5. For example, under the Rules and Regulations of the Federal Labor Relations Council, the filing with the Council of a petition for review of a representation decision of the Assistant Secretary did not automatically operate as a stay of the decision. Council's Rules and Regulations, § 2411.47(a).

6. We do not find Teamsters Local 776 v. National Labor Relations Board, 973 F.2d 230 (3d Cir. 1992), to be dispositive of this case, as claimed by the Respondent. That case involved the continued prosecution of a lawsuit by a union on behalf of a unit as to which a regional director of the National Labor Relations Board had determined the union had no representational relationship. It did not involve an employer's obligation to continue to recognize and bargain with an incumbent union.

7. In her decision in the representation case, the Regional Director advised the parties that she would implement certain actions "absent the timely filing of an application for review . . . or if one is filed and denied, or if the [Authority does not act within] sixty (60) days after the filing of the application for review[.]" Regional Director's Decision and Order on Petitions for Representative Status at 8-9. Therefore, the Respondent was put on notice that the Regional Director's decision was not yet final and that the QCR remained until either the end of the 60-day period or the date when the Authority took further action.

___________________________________________________________________________
___________________________________________________________________________

UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C.  20424-0001

 

 

MORALE, WELFARE AND RECREATION DIRECTORATE, MARINE CORPS AIR STATION, CHERRY POINT,

NORTH CAROLINA

 

               Respondent

 

     and

 

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2065

 

               Charging Party

 

Case No. AT-CA-20639

            AT-CA-20765   

 J.P. Stimson, Captain
        
For the Respondent

Richard Jones, Esq.
        
For the General Counsel

Harold A. Melton, Jr., President
        
For the Charging Party

Before:  JOHN H. FENTON
        
Chief Administrative Law Judge

DECISION

 Statement of the Case 

           The parties have filed cross-motions for summary judgment, respecting the lawfulness of Respondent's conduct in discontinuing dues withholding, refusing to process a grievance, and withdrawing recognition of the certified collective bargaining representative, during the period between the Regional Director's Decision finding the unit was no longer appropriate, and the Authority's Decision leaving that unchallenged finding undisturbed. 

Findings of Fact 

           1.  AFGE Local 2605, the Charging Party, was certified in 1970 as exclusive representative of all civilian employees of the Cherry Point Marine Corps Exchange.  IAM Local 2296 was certified the same year as representative of certain Special Services employees. 

           2.  In 1989 the Activity underwent a reorganization, and the Personnel Services Directorate which had included the two above-described units as well as a Clubs System whose employees were unrepresented, and a group of barbers for whom AFGE had been recognized, became the Morale, Welfare and Recreation Directorate. 

           3.  In 1991 the Activity filed RA petitions seeking a determination that the bargaining units represented by AFGE and IAM were no longer appropriate.  It expressed a willing-ness to bargain on the basis of the new and broader unit. 

           4.  On January 31, 1992 Respondent proposed to terminate Catherine Elliott, an employee in the unit represented by AFGE. 

           5.  Respondent terminated Ms. Elliott on February 14, 1992, and she filed a grievance on February 25. 

           6.  On February 26, the Regional Director (RD) issued a Decision and Order on the petitions described above.  She found that the reorganization had changed the character and scope of the exclusively reorganized units so substantially as to render them no longer appropriate for purposes of collective bargaining.  She accordingly concluded that the units for which AFGE and IAM had been certified no longer existed and that the Activity was under no obligation to recognize them as representatives of the employees involved.  She further held that an Activity-wide unit might be appropriate but that she would neither make such a deter-mination nor order an election because the Unions expressed no interest in representing any unit other than those each previously represented.  She accordingly concluded that the appropriateness of a MWR Directorate-wide unit, and the question of which if any, union would represent it, would have to be determined through the filing and processing of a RO petition.  The RD further stated that she would revoke the certifications granted to AFGE and IAM in the event no application for review of her Decision and Order was timely filed with the Authority (within sixty days), or if one was filed and denied, or if the Authority did not undertake to grant review within sixty days after the filing of an application.[1]

           7.  On March 16, 1992, Respondent informed AFGE that it would cease withholding dues from employees in its inappropriate unit, and on April 4 it ceased doing so. 

           8.  IAM filed an Application for Review on or about April 22.  AFGE did not request review.  IAM's Application was styled as Case No. 4-RA-10002 (the petition involving its unit only).  Although the Authority subsequently found that IAM sought review of the RD's intention to revoke the Unions' certifications, IAM in fact argued that the RD's error affected the rights of IAM, i.e. "effectively decertified the IAM's unit at Cherry Point . . . thereby completely putting a labor organization out of business."  IAM argued that the Statute requires the RD to act upon a RA petition by determining whether the reorganized operation created a new and broader appropriate unit and, if so, to direct an election to determine which, if any, union represented such employees.  While it did not argue that the RD erred in finding that the established units were no longer appropriate, it strongly contended that a RA petition provides no grounds under law or rule and regulation for an order decertifying the exclusive representative of a unit found to be inappropriate. 

           9.  On April 28 AFGE served notice of intent to arbitrate Ms. Elliott's grievance. 

    10.  On May 11 Respondent refused to arbitrate the grievance and refused to recognize AFGE as the exclusive representative of an appropriate unit. 

    11.  On June 19, 1992, the Authority issued its Decision And Order On Application For Review in Cases 4-RA-10001 and 4-CA-10002, upon IAM's application (45 FLRA 281).  IAM sought review, said the Authority, "of the RD's failure to make a conclusive appropriate unit finding, her refusal to order an election and her expressed intention to revoke the Unions' certifications."  A footnote attached to this statement said that the IAM did not challenge the findings that the certified units are no longer appropriate and that Respondent was under no obligation to continue to recognize AFGE and IAM and that, accordingly, the Authority would not address those findings.  The Authority held that "because neither IAM nor AFGE sought a unit different from the units which the Unions had repre-sented, . . . the RD properly declined to make a determination as to what unit would be appropriate and to order an election."  It also held that revocation of the certifications would be improper, notwithstanding that the certified units are no longer appropriate, "in the absence of any precedent warranting revocation of certification in circumstances similar to those in this case."  It directed the RD not to revoke the certifications of AFGE and IAM.  It reaffirmed that holding at 45 FLRA No. 101 on August 31, 1992. 

Positions of the Parties 

           Counsel for General Counsel contends that the refusal to continue dues withholding, the refusal to process the grievance and the withdrawal of recognition from AFGE violated the Statute because they occurred while a question concerning representation was pending, i.e., after the RD's decision but prior to the final resolution of the representation issues raised by Respondent's petitions.  He relies upon Department of Energy, 12 FLRA 658, 660 (and case cited therein) for the proposition "that, following a reorganization and during the pendency of a representation petition . . . an agency must continue to recognize the exclusive representative and adhere to the terms of any prior negotiated agreement to the maximum extent possible, until any questions concerning representation raised by virtue of the reorganization have been resolved."  There, the agency withdrew recognition and repudiated its agreements upon receipt of the Assistant Secretary's decision finding the old units were no longer appropriate and directing an election in a new, larger, unit, prior to the final resolution of the representation issues.[2] 

           Respondent asserts that the RD's Decision became final on February 26, 1992, the date it issued, because 5 C.F.R. §§ 2422.16 and 2422.17 provide that it shall be final, "(p)rovided, however, that a party may file an application for review . . . within sixty (60) days. . . ."  Respondent argues that this language makes the RD's action final as of the date of the action, subject to a condition subsequent "which never eventuated," i.e., the timely filing of an application for review.  It also argues that the Authority's decision relates back to the date of the RD's decision, which it sustained in relevant respect, i.e., as to the disappearance of the appropriate unit.  Alternatively, it originally argued that it became final at the end of the 60-day period. 

           From this Respondent argues that the RD's finding that the AFGE unit was no longer appropriate became final on February 26, obliging it to refrain from violating the law by continuing to deduct dues or otherwise to recognize and deal with a labor organization which could not qualify as the exclusive representative of its employees.[3] 

           Counsel for the General Counsel counters that IAM's timely filing of an Application for Review served to keep open the question of representation because it did raise the question of appropriate unit, so as to require Respondent to continue recognition and observance of the contract's terms (to the maximum extent possible) until that question was resolved by the Authority.  He argues, moreover, that the Application would have been preserved for final resolution by the Authority even if it had not "specifically raised the issue of appropriate unit" because the Authority's scope of review is not limited by the precise language of the Application."[4]  General Counsel points to Rule 2422.17(g) as support for this assertion.  It states that, where review has been granted "the Authority will consider the entire record in the light of the grounds relied upon for review." 

           Finally General Counsel points out that Rule 2422.17(f)[5] makes it clear that a RD's Decision cannot be final until the Authority rules on a timely Application, and that even where the Authority agrees totally with the challenged RD Decision, finality attaches on the date of its action and cannot "relate back" to the date of the initial decision.  It is said to be particularly absurd to argue that the Authority's decision can relate back in a case such as this one, where the Authority, in fact, directed the RD not to carry out her intention to revoke the certifications.[6]  Thus, asserts General Counsel, it does not matter that the Authority eventually left undisturbed the RD's holding that AFGE no longer represented an appropriate unit, or, as he aptly put it, the whole point of this litigation is that the refusal to recognize was simply premature. 

           Counsel for the General Counsel seeks as a remedy the usual cease and desist order and Notice posting, reimbursement of all dues denied the Union from April 4 to June 19, 1992 (the date of the Authority Decision) and a directive that Respondent retroactively process the grievance.          

Discussion and Conclusions 

           As noted, DOE (12 FLRA 658) teaches that during the pendency of a representation petition following a reorgan-ization, an agency must continue to recognize the incumbent union(s) and to continue to honor existing agreements and dues withholding arrangements to the maximum extent possible (consistent with the rights of the parties involved) until any questions of representation have been resolved. 

           That shoe certainly appears to fit, unless the peculiar procedural history of these representation cases calls for a different result.  The question must arise whether such a final resolution of the status of AFGE was reached before the Authority decided the case.  Put another way, was Respondent required to await final disposition of both petitions before it could act, or did AFGE's failure to request review end any question concerning its status as a labor organization entitled to recognition either as representative of its old unit or as potential representative of a new and broader unit as a result of the petitions? 

           The RD ruled that AFGE's unit was rendered inappropriate by the consolidation, and that it therefore no longer existed so as to give rise to a bargaining obligation.  AFGE did not apply for review.  The RD also found that AFGE had disclaimed any interest in representing any new and more inclusive unit which "might be" appropriate.   AFGE did not appeal.  It is axiomatic, in a single union situation, that no QCR can be presented where the union does not seek to represent employees in an appropriate unit.  Would it not follow that, as respects AFGE, there remained no questions to be resolved when it failed to appeal findings that it had lost its status as representative of its pre-consolidation unit, and had no interest in any new unit?  It had walked away from any possibility that it might, as a consequence at least of the RA petition affecting its unit, retain its status as a potential exclusive bargaining agent.  Is there any way that IAM's application for review could keep open the question whether AFGE might wind up on the ballot?  If not there was a final resolution of the QCR posed by AFGE's presence on April 28, 1992, when the 60 days prescribed by Section 7105(f) had run their course.  On that date the RD's action became the action of the Authority, and, on this analysis, Respondent was free to ignore its former obligations to AFGE. 

           The only way to avoid application of this analysis, it seems to me, is to find that IAM's application for review, based on the RA petition affecting its unit, served to keep open for the Authority's final resolution, the question of AFGE's status.  Here IAM's appeal did not, as reflected in footnote 1 of the Authority's Decision, address the question whether either of the original units might have survived the merger as appropriate.  IAM, however, did appeal from the RD's refusal, based on the disclaimer(s), to address the new unit question and direct an election.  It also appealed the RD's expressed intention to revoke its certification if left free to do so by the failure to file a timely appeal or the failure of the Authority either to grant review or to overrule her decision.  One is hard put to understand how IAM (if it can be read as having attempted to do so) has the standing or capacity to raise questions concerning the RD's finding that the words uttered by AFGE's representative constituted a disclaimer of any interest in representing the employees of any newly constituted unit.  If IAM's appeal could neverthe-less keep AFGE's prospects of participation in the representa-tion process alive, then there was the possibility that the Authority could have disregarded the disclaimers as temporary constraints on the unions arising from Article XX of the AFL-CIO Constitution, which would be lifted by a direction of an election with both unions on the ballot, subject to one or the other requesting its removal.  While such an approach would not be unprecedented,[7] and appears to be what IAM argues should have occurred here, the Authority clearly viewed itself as required to abort the process in the face of disclaimers by Section 7111(b) of the Statute. 

           Whatever the consequences of this analysis, it remains clear that the Authority did treat IAM's application for review as placing before it the question whether AFGE as well was entitled to resolution of the unit question, direction of an election and avoidance of revocation of its certification, notwithstanding that AFGE never sought any of these.  The Authority in fact, for reasons I do not fathom, refused to permit the RD to revoke either certification, expressly on the ground that there is no precedent for such action. 

           To recapiluate, I find very persuasive Respondent's argument that an RD's decision is final under the Rules, subject to a "condition subsequent," i.e. the timely filing of an application for review (here by the union which is the Charging Party), and that it becomes the action of the Authority when that time runs out.  This approach would require a finding that the cessation of dues withholding was nevertheless a violation because it preceded that event by two weeks, but that the after-occurring withdrawal of recognition was privileged.  The refusal to arbitrate the grievance would be a violation because the grievance arose before any final determination had occurred, i.e. at a time when, although the consolidation had occurred, there had been no final resolution of the QCR.  Particularly where grievance/arbitration clauses are virtually mandated by statute, it would seem plainly reasonable to find that arbitration is available concerning claimed rights which accrued before the union lost its status as exclusive representative of an appropriate unit.  Cf. John Wiley & Sons v. Livingston, 376 US 551, 55 LRRM 2769. 

           I would recommend that the Authority take the approach outlined above, as it gives full meaning to the roles and rights of all parties rather than permitting one - IAM - to keep AFGE in as a nonconsenting party to a continuing exploration of a QCR, compelling AFGE to retain its status as a certified representative, albeit of an inappropriate unit (with whatever rights/obligations such status may comprehend) and requiring the agency to assume obligations toward AFGE which AFGE never sought to secure. 

           Nevertheless I am obliged to follow the path I believe the Authority to have chosen.  As the Authority did see fit to consider the question whether both Unions were entitled to a unit determination concerning the consolidated operation, as well as the possibility of their placement on the ballot and, even more clearly, used IAM's appeal as a vehicle for preserving AFGE's status as certified representative of its nonexistent unit, it appears reasonably clear that the Authority's approach was to keep both petitions alive based on the appeal filed by the union party to one of them.  From this premise it would follow that the QCR, involving AFGE, was not finally resolved until the date of the Authority's Decision - June 19.  Accordingly, the cessation of dues withholding between April 4 and June 19[8] was violative of Section 7116(a)(1), (5) and (8) (as it constituted noncompliance with Section 7115), and the withdrawal of recognition and repudiation of the obligation to arbitrate the grievance on May 11 violated 7116(a)(1) and (5).[9] 

           It is therefore recommended that the Authority enter the following: 

ORDER 

           Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, North Carolina, shall: 

           1.  Cease and desist from:

                      (a)  Refusing to accord appropriate recognition to American Federation of Government Employees, Local 2065, a lawfully designated exclusive representative of its employees, after a reorganization and during the pendency of a representation matter, and refusing to adhere to the terms of its negotiated agreement with the exclusive representative, including the obligation to submit grievances to arbitration and to honor dues withholding arrangements, to the maximum extent possible, until the representation matter is resolved. 

                      (b)  In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 

           2.  Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: 

                      (a)  After a reorganization and during the pendency of a representation matter, maintain recognition of any exclusive representative of its employees, and adhere to the terms of any prior collective bargaining agreement, to the maximum extent possible, until the representation matter is resolved. 

                      (b)  Upon request of American Federation of Government Employees, Local 2065, agree to arbitrate the grievance of Ms. Elliott, filed on February 25, 1992. 

                      (c)  Remit to American Federation of Government Employees, Local 2065 those regular and periodic dues which should have been withheld from employees' pay pursuant to Section 7115 of the Statute, from the date of discontinuance until June 19, 1992. 

                      (d)  Post at its Cherry Point, North Carolina facilities, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority.  Upon receipt of such forms, they shall be signed by the Director, Morale, Welfare and Recreation Directorate, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted.  Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. 

                      (e)  Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Federal Labor Relations Authority, Atlanta Regional Office, 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30367, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. 

Issued, Washington, DC, April 9, 1993

                                                                                                         ______________________
                                                                                                     
           JOHN H. FENTON
  
                                                                                                    Chief Administrative Law Judge



NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUE 

WE HEREBY NOTIFY OUR EMPLOYEES THAT: 

WE WILL NOT refuse to accord appropriate recognition to American Federation of Government Employees, Local 2065, a lawfully designated exclusive representative of our employees, after a reorganization and during the pendency of a repre-sentation matter, and refuse to adhere to the terms of our negotiated agreement with the exclusive representative, including the obligation to submit grievances to arbitration and to honor dues withholding arrangements, to the maximum extent possible, until the representation matter is resolved.

 WE WILL NOT, in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

 WE WILL, after a reorganization and during the pendency of a representation matter, maintain recognition of any exclusive representative of our employees, and adhere to the terms of any prior collective bargaining agreement, to the maximum extent possible, until the representation matter is resolved.

WE WILL, upon request of American Federation of Government Employees, Local 2065, agree to arbitrate the grievance of Ms. Elliott, filed on February 25, 1992.

WE WILL remit to American Federation of Government Employees, Local 2065, those regular and periodic dues which should have been withheld from employees' pay pursuant to Section 7115 of the Statute, from the date of discontinuance until June 19, 1992.

                                                                                                                                     
  
                                                                                                            (Activity)

 Date:                      By:                                

 This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Atlanta Regional Office, 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30367, and whose telephone number is:  (404) 347-2324.

 

ALJ's FOOTNOTES

[1]Section 2422.17(f) of the Authority's Rules and Regulations provides that, should any of these three conditions occur, a "Decision and Order of a Regional Director becomes the action of the Authority. . . ."

[2]Under Executive Order 11491 the Assistant Secretary made the initial decision, as the RD now does under the Statute.

[3]Essentially the same argument might have been made in different form:  that the RD's conclusion that there was no obligation to recognize AFGE became final when AFGE failed to request review (nor did IAM raise that matter).

[4]I take this to mean that any Application would have sufficed, regardless of the nature of the quarrel with the RD's Decision, for example, if it had been limited to the question of revocation of IAM's certification.  As the Application manifestly argued that the RD was required to address the question whether a new and broader appropriate unit had been created by the consolidation and, if so, to direct an election, I am puzzled by this contention, unless it is meant to anticipate argument over the power of IAM to alter the findings with respect to AFGE.

[5]That Rule provides: 

A Decision and Order of a Regional Director becomes the action of the Autority when: 

(1)  No application for review is filed within sixty (60) days after the date of the Regional Director's Decision and Order; or 

(2)  A timely application for review is filed with the Authority and the Authority does not undertake to grant review of the Regional Director's Decision and Order within sixty (60) days after the date of the filing of the application; or 

(3)  The Authority denies an application for review of the Regional Director's Decision and Order.

[6]General Counsel also argues that there was no "final" action by the RD as of the date of her decision because it conditioned issuance of an "actual Order" as follows:  "absent the timely filing of an application for review of this Decision and Order with the Authority, or if one is filed and denied, or if the sixty (60) days after the filing of the application for review, I will revoke the certifi-ations. . . ."

[7]Martin-Marietta Chemicals, 270 NLRB 821, 116 LRRM 1160.

[8]Although AFGE remains the certified exclusive representative, which normally posits as a sine quo non the existence of a unit appropriate for purposes of collective bargaining, the Authority held on that day that the pre-consolidation unit was no longer appropriate and that AFGE could not, by virtue of the representation proceeding, remain in contention as a potential representative of any of Respondent's employees.  There was then, a "final resolution" of the representation matter in every respect save the meaning of the certification which survived this process.  In the circumstances, General Counsel's failure to seek either extension of the bargaining obligation or a dues remedy beyond that date seems entirely understandable, although it appears to decline the Authority's invitation to further elucidating litigation, i.e. that "(a)ny matters relating to the parties' rights and obligations as to the units represented by AFGE and IAM may be resolved as appropriate in other proceedings, including proceedings under the Statute," 45 FLRA 281, 288.