50:0007(3)RO - - Defense Commissary Agency, Defense Commissary Store, Fort Drum, NY and NAGE, SEIU, and AFGE, Local 400 - - 1994 FLRAdec RP - - v50 p7



[ v50 p7 ]
50:0007(3)RO
The decision of the Authority follows:


50 FLRA No. 3

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEFENSE COMMISSARY AGENCY

DEFENSE COMMISSARY STORE

FORT DRUM, NEW YORK

(Activity)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

SEIU, AFL-CIO

(Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 400, AFL-CIO

(Labor Organization)

BN-RO-40015

_____

ORDER GRANTING APPLICATION FOR REVIEW

September 19, 1994

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This case is before the Authority on an application for review filed by the American Federation of Government Employees, Local 400, AFL-CIO (AFGE) under section 2422.17(a) of the Authority's Rules and Regulations. The Petitioner (NAGE) filed an opposition to AFGE's application for review. The Activity did not file an opposition to the application for review. For the following reasons, we will grant AFGE's application for review.

II. Background and Regional Director's Decision

As found by the Regional Director (RD), prior to October 1, 1991, the commissary store located at Fort Drum was under the control and direction of the Department of the Army (DOA). On October 1, 1991, the Defense Commissary Agency (DeCA) assumed control of approximately 416 commissary stores which had previously been under the control of the military departments of the Department of Defense (DOD), including the commissary store at Fort Drum. With this transfer, the Fort Drum commissary store employees became employees of DeCA. DeCA is a separate agency within DOD and is not under the control of DOA or any other military department.

Prior to October 1, 1991, the nonprofessional wage grade employees of the Fort Drum commissary store were included in a base-wide bargaining unit of nonprofessional wage grade employees of DOA, for which NAGE has been recognized since 1968 as the exclusive representative. Nonprofessional general schedule employees at Fort Drum were unrepresented until October 4, 1991, when AFGE was certified in Case No. 1-RO-10003 as the exclusive representative of all nonprofessional general schedule employees of DOA at Fort Drum. The nonprofessional general schedule employees of the Fort Drum commissary store were eligible as DOA employees to participate in the representation election conducted in Case No. 1-RO-10003 during September 1991.

On November 30, 1993, NAGE filed its petition in this case, seeking an election to determine if it should be certified as the exclusive representative for a claimed appropriate unit of all nonsupervisory, nonprofessional DeCA employees assigned to the Fort Drum commissary store. The unit sought by the petition includes general schedule and wage grade employees. AFGE was not served with a copy of NAGE's petition. On December 21, 1993, DeCA posted a notice of petition which had been prepared by the RD's office. The notice was posted for 10 days in three locations within the Fort Drum commissary store.

On March 29, 1994,(*) AFGE requested to intervene in order to participate in the election. AFGE asserted that it had not been aware of the notice posting and that it was entitled to be treated as an intervenor because it was an incumbent exclusive representative.

In his Decision and Order Denying Request for Intervention, the RD denied AFGE's request to intervene on the grounds that: (1) the request was not timely filed as required by section 2422.5(c) of the Authority's Rules and Regulations because the request was not made within ten days after the date of the posting of the notice of petition and AFGE did not show good cause for its failure to comply with that requirement; and (2) AFGE did not qualify to intervene as an "incumbent exclusive representative" within the meaning of section 2422.5(c) of the Regulations because AFGE had never been the exclusive representative of any employees of DeCA.

III. Application for Review

In its application for review, AFGE alleges that the Authority should grant review of the RD's decision under section 2422.17 of the Authority's Rules and Regulations on the grounds that: (1) the RD erred in processing NAGE's petition because the petition was prematurely filed; (2) AFGE was not served with a copy of the petition as required by the Authority's Regulations and the instructions on the Authority's petition form; (3) the RD's decision that AFGE did not qualify to intervene as an "incumbent exclusive representative" under section 2422.5(c) of the Authority's Regulations was clearly in error and prejudiced AFGE's rights in this case; and (4) there are extraordinary circumstances presented by the facts of this case that warrant reconsideration of the application of the time limits governing intervention under section 2422.5(c) of the Authority's Regulations. AFGE requests that the Authority direct the RD to order a refiling of NAGE's petition and afford AFGE the opportunity to intervene.

IV. Order

We find that AFGE has established that compelling reasons exist for granting the application for review of the RD's decision and order under section 2422.17(c) of the Authority's Rules and Regulations. AFGE has established that the RD's denial of AFGE's request to intervene raises a substantial question of law or policy because of the absence of, or a departure from, Authority precedent under section 2422.17(c)(1) regarding whether AFGE had a right in the circumstances of this case to be served with a copy of the petition and/or a right to intervene in the proceeding. We also find that AFGE's application raises a question whether the RD's ruling denying AFGE's request to intervene has resulted in prejudicial error to AFGE under section 2422.17(c)(3). In particular, we grant the application for review as to the following issues: (1) whether AFGE was entitled under section 2422.2(e)(3) of the Authority's Regulations to be served with a copy of NAGE's petition and, if so, whether the failure to serve AFGE with a copy of the petition improperly denied AFGE an opportunity to timely intervene in this case; and (2) whether AFGE is an "incumbent exclusive representative" so as to qualify as an intervenor under section 2422.5(c) of the Authority's Regulations.

Accordingly, we grant the application for review of the Regional Director's decision and order. In accordance with section 2422.17(g) of our Rules and Regulations, the parties are requested to submit briefs, within 10 days after issuance of this Order, on the issues on which we have granted the application for review. Briefs should be directed to:

Alicia N. Columna
Director, Case Control Office
Federal Labor Relations Authority
607 14th Street, N.W., 4th Floor
Washington, D.C. 20