50:0334(54)RO - - HHS, Region IX, San Francisco, CA and NFFE, Local 1450 and AFGE and AFGE Local 2403 - - 1995 FLRAdec RP - - v50 p334



[ v50 p334 ]
50:0334(54)RO
The decision of the Authority follows:


50 FLRA No. 54

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

REGION IX

SAN FRANCISCO, CALIFORNIA

(Activity)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1450

(Petitioner/Labor Organization)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Exclusive Representative)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2403, AFL-CIO

(Labor Organization)

SF-RO-40054

_____

ORDER DENYING APPLICATION FOR REVIEW

April 28, 1995

_____

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 American Federation of Government Employees, Local 2403, AFL-CIO (Local 2403) under section 2422.17(a) of the Authority's Regulations. The National Federation of Federal Employees, Local 1450 (Petitioner or NFFE) and the Activity each filed an opposition to the application for review.

Local 2403 seeks review of the Regional Director's (RD's) decision and order dismissing its objections to the conduct of a representation election. For the following reasons, we deny the application for review.

II. Regional Director's Decision

Local 2403 timely filed objections to the procedural conduct of an election between the exclusive representative (AFGE National) and NFFE, where a majority of the valid votes counted were cast for NFFE. The RD found that Local 2403: (1) was not the exclusive representative of employees in the petitioned-for unit; (2) did not file the petition; and (3) neither sought nor was granted intervenor status. The RD concluded that Local 2403 lacked standing to file objections to the election because it was not a party to the proceeding, within the meaning of section 2422.21(b) of the Authority's Regulations. The RD also concluded that Local 2403 was not acting as AFGE National's agent. Therefore, the RD dismissed the objections.

III. Positions of the Parties

A. Application for Review

Local 2403 maintains that it has standing to file objections to the conduct of the election because it has represented the employees in the petitioned-for unit and should be deemed to be an incumbent intervenor in the proceedings. Local 2403 notes that, in response to an order issued by the RD, AFGE National stated that Local 2403 had acted on behalf of AFGE National in filing some, but not all, of the objections.

B. Oppositions

NFFE argues that Local 2403's application for review should be dismissed because Local 2403 is not a party to the proceeding and, therefore, lacks standing to file an application for review.

The Activity argues that Local 2403's response to an Authority Order to Show Cause should be dismissed because Local 2403 failed to include with its response the statement of service required by section 2429.27 of the Authority's Regulations.(*) The Activity also claims that Local 2403's application for review should be dismissed because Local 2403 has failed to establish that it is a party, within the meaning of section 2422.17(a) of the Authority's Regulations.

IV. Analysis and Conclusions

Even if an entity is not a party to a proceeding, it may file an application for review of an RD's finding that it has no standing to participate in the case and the Authority will review the merits of the RD's determination as to standing. See U.S. Department of Defense, Defense Distribution Region West, Tracy, California, 43 FLRA 990 (1992). Accordingly, Local 2403's application for review is properly before us. However, for the following reasons, we find that Local 2403 has not established that compelling reasons exist, within the meaning of section 2422.17(c) of the Authority's Regulations, for granting review of the RD's decision that it lacked standing to file objections to the representation election in this proceeding.

Section 2422.21(b) of the Authority's Regulations provides that a "party" to an election may file objections to a representation election. "Party" is defined to include, as relevant here, any person: (1) filing a charge, petition, or request; (2) named in a charge, complaint, petition, or request; or (3) whose intervention in a proceeding has been permitted or directed by the Authority. 5 C.F.R. § 2421.11.

Local 2403 has not established that it is a party in this proceeding, as defined in section 2421.11. There is no contention that Local 2403 filed the instant petition or was named in it. In addition, the record is clear that AFGE National, not Local 2403, was the exclusive representative of the petitioned-for employees. As such, Local 2403 does not qualify as an incumbent intervenor under section 2422.5 of the Authority's Regulations. See Defense Commissary Agency, Defense Commissary Store, Fort Drum, New York, 50 FLRA 249, 253 (1995) ("a union qualifies as an 'incumbent' only when it is the exclusive representative of all the employees in the unit sought in a petition"). Local 2403 did not, apart from claiming intervenor status as an incumbent, seek to intervene by filing a motion accompanied by an adequate showing of interest, as required by section 2422.5 of the Authority's Regulations.

Further, although Local 2403 notes AFGE National's previous statement that, in part, the objections were filed on its behalf, Local 2403 does not seek to have the objections considered as those of AFGE National. It is clear that Local 2403 asserted then and now that it is entitled, in its own right, to participate in the proceeding as the incumbent exclusive representative. In these circumstances, we conclude that Local 2403 was not acting as AFGE National's agent.

Local 2403 has failed to establish that compelling reasons exist for granting review of the RD's decision and order under section