[ v48 p890 ]
48:0890(94)DR
The decision of the Authority follows:


48 FLRA No. 94

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE INTERIOR

INDIAN HEALTH SERVICE

GALLUP INDIAN MEDICAL CENTER

GALLUP, NEW MEXICO

(Activity)

and

BERNICE MILANE-BACA

GALLUP INDIAN MEDICAL CENTER ORGANIZING COMMITTEE

(Petitioner/Individual)

and

NAVAJO AREA HEALTH CARE EMPLOYEES,

LOCAL 1376

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA,

AFL-CIO

(Labor Organization/Interested Party)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1749

(Incumbent Labor Organization)

DA-DR-30026

_____

DECISION AND ORDER ON APPLICATION FOR REVIEW

November 18, 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 of the Regional Director's Decision and Order in the above-captioned case, filed by the Navajo Area Health Care Employees, Local 1376, Laborers' International Union of North American, AFL-CIO (LIUNA), pursuant to section 2422.17 of the Authority's Rules and Regulations.(1) NFFE filed an opposition to LIUNA's application. The Petitioner and the Activity did not file submissions in this case.

The Dallas Regional Director (RD) dismissed the petitioner's decertification (DR) petition on the basis that it was untimely filed under section 2422.3(e) of the Authority's Rules and Regulations.(2) For the following reasons, we grant the application for review because we find that a substantial question of law and/or policy is raised because of an absence of Authority precedent on one of the issues involved in this case. On review of the RD's decision, we agree that the petition must be dismissed.

II. Background

NFFE is the exclusive representative of a unit of the Activity's employees. NFFE and the Activity were parties to a collective bargaining agreement which had been in effect for several years. Prior to the expiration of that agreement, LIUNA timely filed a petition challenging NFFE's status as exclusive representative. The petition was supported by a showing of interest which LIUNA obtained when the Activity allowed it access to its premises for an organizing campaign.

NFFE filed an unfair labor practice (ULP) charge, with the Denver Regional Director, which alleged that the Activity violated section 7116(a)(3) of the Federal Service Labor-Management Relations Statute (the Statute) when it unlawfully assisted LIUNA by granting access to Agency facilities.(3) Subsequently, the Authority adopted the findings and recommended order of an Administrative Law Judge, who determined that the Activity violated the Statute, as alleged. Gallup Indian Medical Center, Gallup, New Mexico, 44 FLRA 217 (1992) (Gallup I). Among other things, the Authority directed the Denver RD to determine the appropriate action to be taken with respect to LIUNA's petition, which had been held in abeyance pending resolution of the ULP.

Subsequently, the Denver RD dismissed LIUNA's petition based on the conclusion that the showing of interest which accompanied it was obtained through a grant of access found unlawful and, therefore, was invalid. The RD directed that, if a new petition were filed, it needed to be accompanied by a new, untainted showing of interest. Further, according to the RD, section 2422.3(e) of the Authority's Regulations precluded the filing of a new petition for a period of 90 days from the date her decision and order became final.

LIUNA filed an application for review of the RD's decision. For the reasons set forth in U.S. Department of Health and Human Services, Public Health Service, Indian Health Service, Gallup Indian Medical Center, Gallup, New Mexico, 46 FLRA 1421 (1993) (Gallup II), petition for review filed sub nom. Navajo Area Health Care Employees Local 1376, Laborers' International Union of North America, AFL-CIO v. FLRA, No. 93-1268 (D.C. Cir. Apr. 13, 1993), we affirmed the RD's finding that LIUNA's showing of interest was invalid and we dismissed the petition. Further, we ordered that:

[u]nder the provisions of section 2422.3(e) of the Authority's Regulations, no new petition for exclusive recognition shall be entertained for a period of ninety (90) days from the date of this Order. If a new petition is filed, it must be accompanied by a newly acquired, valid showing of interest.

Gallup II, 46 FLRA at 1431-32.(4)

NFFE and the Activity signed a new collective bargaining agreement on March 18, 1993. On March 26, 1993, petitioner Bernice Milane-Baca filed the DR petition with the Dallas Regional Director.

III. Dallas Regional Director's Decision

The RD issued an Order to Show Cause why the DR petition should not be dismissed as a rival claim which was untimely filed under section 2422.3(e) of the Authority's Rules and Regulations. The Activity, NFFE, and LIUNA submitted responses.

The Activity argued that LIUNA and the petitioner were indistinguishable and, thus, the DR petition constituted a rival claim, within the meaning of section 2422.3(e) of our Rules and Regulations, filed by LIUNA. NFFE asserted that it entered into a contract with the Activity during the 90-day period set forth in section 2422.3(e) and argued that the contract barred the DR petition.

LIUNA argued that, because the DR petition was filed by an individual employee and not by a labor organization, it did not constitute a rival claim under section 2422.3(e) of our Rules and Regulations. LIUNA also argued that the petition was timely under section 2422.3(d)(3) of our Rules and Regulations because unusual circumstances existed which substantially affected NFFE's majority representation.(5) In this regard, LIUNA asserted that NFFE no longer represented the majority of the Activity's unit employees, as evidenced by several typewritten lists of employee names which LIUNA and the Gallup Indian Medical Center (GIMC) Organizing Committee had obtained as a showing of interest subsequent to the RD's decision dismissing LIUNA's original petition.

The RD noted that the Authority had not previously addressed the issues raised by the responses to the Order to Show Cause. However, the RD considered National Labor Relations Board (NLRB) precedent and concluded, based on Freedom WLNE-TV, Inc., 295 NLRB 634 (1989) (Freedom WLNE-TV), that the DR petition constituted a rival claim within the meaning of section 2422.3(e) and, as such, was untimely. The RD noted that, in Freedom WLNE-TV, the NLRB dismissed a decertification petition which was filed during a period of time that had been set aside for a union and employer to engage in collective bargaining. According to the RD, the NLRB determined that the union was entitled to a reasonable period of time to engage in collective bargaining with the employer to "ameliorate the harm done to its status as exclusive representative" as a result of alleged unfair labor practices committed by the employer. Decision and Order at 5. The RD concluded that, like the union in Freedom WLNE-TV, NFFE was entitled to engage in collective bargaining with the Activity during the 90-day period set forth in section 2422.3(e) of our Rules and Regulations, free from any challenge to its majority status, in order to remedy the effects of the Activity's unlawful conduct. Consequently, the RD found the petition was barred by section 2422.3(e) of the our Rules and Regulations.

The RD further concluded that there was no showing of unusual circumstances under section 2422.3(d)(3) of our Rules and Regulations. In addition, citing North Carolina Army National Guard, Raleigh, North Carolina, 34 FLRA 377 (1990) (North Carolina Army National Guard), the RD found that the unsigned lists of names on which the petitioner and LIUNA relied to support a showing of unusual circumstances, did not comprise an appropriate showing of interest. The RD further determined that there was no other basis on which to find the DR petition timely. Accordingly, the RD dismissed the petition as untimely under section 2422.3(e).

IV. Application for Review

LIUNA argues that the RD's decision "is subject to review under the criteria of 2422.17(c) [of the Authority's Rules and Regulations]." Application for Review at 1.(6) LIUNA asserts that the RD's dismissal of a DR petition as a rival claim under section 2422.3(e) of the Authority's Rules and Regulations "is a novel issue that has never been addressed by the Authority." Id. In this connection, LIUNA contends that the phrase "rival claim" in section 2422.3(e) refers to a petition filed by another labor organization. According to LIUNA, a DR petition does not involve an "organization . . . making a 'rival claim' for representative status, as contemplated by [s]ection 2422.3(e) . . . ." Id. at 3. LIUNA also asserts that the RD's reliance on Freedom WLNE-TV is misplaced. According to LIUNA, no harm was done to NFFE's rights during the pendency of the ULP proceeding in Gallup I.

LIUNA also argues that the RD erroneously concluded that there was no showing of unusual circumstances under section 2422.3(d)(3) of the Authority's Rules and Regulations. LIUNA contends that evidence it submitted in response to the RD's Order to Show Cause "was sufficient . . . to require an evidentiary hearing or formal investigation." Application for Review at 4.(7)

V. Opposition

NFFE contends that the RD concluded correctly that the DR petition was untimely filed. NFFE further contends that the petitioner and LIUNA are indistinguishable.

VI. Analysis and Conclusions

Under section 2422.17(c) of the Authority's Rules and Regulations, the Authority may grant an application for review when a substantial question of law or policy is raised by either the absence of, or a departure from, Authority precedent. LIUNA argues that its application for review should be granted because there is an absence of Authority precedent on the issue of whether a DR petition constitutes a rival claim, within the meaning of section 2422.3(e). We agree and, accordingly, grant the application for review.

Section 2422.3(e) of the Authority's Rules and Regulations provides that, when a petition has been filed which challenges the representation status of an incumbent union and that petition is subsequently withdrawn or dismissed, the incumbent and the activity shall have a 90-day period, "free from rival claim within which to consummate an agreement . . . ." We reject LIUNA's contention that the phrase "rival claim" refers solely to a petition filed by another labor organization. Based on the plain wording of section 2422.3(e), we conclude that the phrase "rival claim" denotes any petition which challenges the representation status of an incumbent representative.

Under section 7111(b)(1)(B) of the Statute, a DR petition is a petition in which an individual or individuals allege that an incumbent representative no longer represents the majority of the employees in the relevant unit and seeks an election to resolve the matter. See 7th Infantry Division (Light), Fort Ord, California, 47 FLRA 864, 870 (1993). A DR petition, therefore, is a petition challenging the representation status of an incumbent labor organization.

In addition, section 2422.3(e) of the Authority's Rules and Regulations provides an incumbent representative and agency 90 days following an unsuccessful challenge to the incumbent's status within which to enter into a collective bargaining agreement. The RD, relying on Freedom WLNE-TV, determined that this period would be rendered ineffective if a decertification petition filed during the 90-day period was permitted. We agree.

Moreover, as discussed in more detail below, we conclude that NLRB precedent provides guidance relating to the treatment of rival claims and petitions filed during periods when the parties are under a bargaining obligation. For example, in Poole Foundry and Machine Co., 95 NLRB 34 (1951) (Poole), enforced, 192 F.2d 740 (4th Cir. 1951), cert. denied, 342 U.S. 954 (1952), the union and employer signed a settlement agreement providing that the employer would bargain with the union. A few months later, certain of the employer's employees filed a DR petition. The NLRB, in sustaining the Regional Director's dismissal of the petition, stated that the employer and union were "entitled to a reasonable time within which to effectuate the provisions of the settlement agreement . . . free from rival claims and petitions . . . ." Poole, 95 NLRB at 35-36. The Board noted that, if settlement agreements were to achieve their purpose, they must be treated like bargaining orders. That is, according to the NLRB, settlement agreements must be treated as giving the parties a reasonable time in which to conclude a contract without challenge to the majority status of the union. Id. at 36.

Similarly, in Freedom WLNE-TV, in resolution of a ULP charge, the parties entered into an informal settlement agreement in which the employer agreed to bargain with the union. The settlement was approved by the NLRB and a notice to employees was posted for a 60-day period. During the posting period, a DR petition was filed. The Board, citing Poole, dismissed the petition, noting that it could not be entertained during the period of time set aside for the parties to bargain.

In the Federal sector, under section 2422.3(e) of the Authority's Rules and Regulations, after a petition challenging an incumbent union's majority status is dismissed or withdrawn, and no other petition filed under section 2422.3(d)(1) is pending, the incumbent union and agency are entitled to a 90-day period within which to "consummate an agreement." 5 C.F.R. § 2422.3(e). At that point, Federal parties are in a position similar to private sector parties who have entered into a settlement agreement providing that the employer will bargain with the union. Accordingly, we reject LIUNA's assertion that the RD's reliance on Freedom WLNE-TV was misplaced.

Moreover, section 2422.3(e) of the Authority's Rules and Regulations provides a 90-day period during which the parties may negotiate a collective bargaining agreement, free from the disruption of another representation challenge. In this regard, the RD concluded, and we agree, that the 90-day period provided by section 2422.3(e) promotes stability in the collective bargaining process and, as such, is consistent with the purposes and policies of the Statute. See, for example, Kansas Army National Guard, Topeka, Kansas, 47 FLRA 937, 941 (1993). See also Department of the Navy, Great Lakes Naval Base, Public Works Center, Great Lakes, Illinois, 7 A/SLMR 1003, 1004 (1977) and Denver Airway Facilities Hub Sector, FAA, Rocky Mountain Region, DOT, Aurora, Colorado, 5 A/SLMR 467, 469 (1975), (Assistant Secretary of Labor for Labor-Management Relations applied regulation similar to section 2422.3(e) to preclude the filing of election petitions during a 90-day period immediately following the withdrawal or dismissal of an election petition challenging the representation status of an incumbent representative). We note that, if an agreement is not reached between an incumbent and an affected agency, employees may file a DR petition after conclusion of the 90-day period.

For the foregoing reasons, we find that the phrase "rival claim" in section 2422.3(e) of the Authority's Rules and Regulations includes a DR petition.

Turning to the facts of this case, we agree with the RD that the DR petition filed by the petitioner must be dismissed as a rival claim under section 2422.3(e). In Gallup II, the Authority ordered that LIUNA's petition for exclusive recognition be dismissed and further ordered that, pursuant to section 2422.3(e), no new petition for exclusive recognition could be entertained for 90 days from the date of our order. On March 26, 1993, a date well within the 90-day period, the instant DR petition was filed. As we have determined that a rival claim includes a DR petition, we agree with the RD that the DR petition was untimely filed and must be dismissed.(8)

Moreover, we conclude that the RD was not obligated to hold an evidentiary hearing under section 2422.8(a) of the Authority's Rules and Regulations. That provision expressly states that the RD "may cause a notice of hearing to be issued . . . ." (emphasis added). Therefore, a determination of whether to hold a hearing is within an RD's discretion. See also Fort Campbell Dependents Schools, Fort Campbell, Kentucky, 47 FLRA 1386, 1389 (1993) (quoting U.S. Department of Agriculture, Forest Service, Apache-Sitgreaves National Forest, Springerville, Arizona, 47 FLRA 945, 952 (1993) (a hearing need not be held whenever questions of fact are raised because an RD may determine that "there are sufficient facts not in dispute to form the basis for a decision or that, even where some facts are in dispute, the record contains sufficient evidence on which to base a decision")).

Finally, LIUNA has not demonstrated that the RD's determination that unusual circumstances, within the meaning of section 2422.3(d)(3) of our Rules and Regulations, did not exist is clearly erroneous. As such, LIUNA's arguments on this point provide no basis for setting aside the RD's Decision and Order.

VII. Order

The DR petition is dismissed.




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

1. Section 2422.17 of the Authority's Rules and Regulations provides that an application for review may be filed by any "party." Section 2421.11 of the Regulations provides that the term "party" includes, as relevant here, an entity "named in a . . . petition[.]" As LIUNA was named in the decertification petition, we conclude that it is a party to this proceeding.

2. Section 2422.3(e