51:1254(99)DR - - Naval Air Station, Fallon, NV and James Hall and International Association of of Fire Fighters, Local F-268 - - 1996 FLRAdec RP - - v51 p1254

[ v51 p1254 ]
The decision of the Authority follows:

51 FLRA No. 99














(Incumbent Labor Organization/Intervenor)




April 30, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

On January 2, 1996, the Authority issued a procedural order (Order) dismissing an application for review of the Regional Director's (RD's) approval of the petitioner's request to withdraw his petition in this decertification case. A motion for reconsideration of the Order was filed by Brook Beesley (the applicant), a "designated representative" of Mark Rubert, who is asserted to be president of the International Association of Fire Fighters, AFL-CIO, CLC, Local F-268 (the Local), the incumbent exclusive representative and intervenor in this case. Motion for Reconsideration at 1. No opposition to the motion for reconsideration was filed.

We have reviewed the RD's action sua sponte and, for the following reasons, conclude that there has been no demonstration that the RD erred in approving the petitioner's request to withdraw his petition.

II. Background

The Local is the exclusive representative of certain employees of the Naval Air Station Fallon, Fallon, Nevada. A petition was filed by James Hall, an individual, seeking an election to decertify the Local. Balloting took place on June 9, 1995.(1) The tally was 13 for decertification and 22 against. The ballots of 11 employees were challenged, a number sufficient to affect the outcome of the election. A hearing on the voting eligibility of the challenged employees was scheduled for August 2.

On August 2, the parties reached an agreement that 6 of the 11 employees were eligible to vote, and agreed to open and count the 6 ballots and to proceed to the hearing only if the unresolved challenges would still be sufficient to affect the outcome of the election. After the parties counted the 6 ballots, the revised tally was 18 for decertification and 23 against. The 5 remaining challenged ballots were sufficient to affect the outcome of the election.

On August 3, petitioner Hall submitted a request to withdraw his petition. On August 7, the RD approved Hall's withdrawal request. On the same date, the applicant wrote to the RD on behalf of Rubert, requesting that the RD disapprove the withdrawal request. The applicant contended that a letter from Greg Zuniga, as the president of the Local, to Hall, which led to Hall's request to withdraw his petition, was invalid because Rubert is the real president of the Local, and its "only authorized representative of record." Application, Enclosure 3.

On August 11, the RD responded to the applicant's letter. The RD noted that because she had already approved the petitioner's request to withdraw the petition by the time she received the applicant's letter, she was considering the letter as a request to rescind the approval of the withdrawal of the petition. The RD stated that as a petitioner is free to seek withdrawal of a representation petition at any time during its processing, the applicant's letter provided no basis for rescinding the approval of Hall's request to withdraw his petition. The RD also stated that to the extent that the applicant's letter indicated the existence of a dispute regarding who is the current president of the Local, such a dispute was a matter of internal union business, to be addressed through appropriate procedures within the union. Finally, the RD noted that she had a letter dated July 28, addressed to Rubert and Zuniga from the president of the International Association of Fire Fighters (IAFF), the Local's parent labor organization, designating Zuniga as the Local's president.

On September 27, the applicant filed his application for review "of the [RD's] 'Decision' and/or 'making other disposition of the matter' to approve petitioner withdrawal[.]" Application at 1. On October 25, the Authority issued an Order to Show Cause why the application for review should not be dismissed. The order noted that no provision in the Authority's Regulations authorizes a party to file an application for review of an RD's approval of an individual's request to withdraw his or her representation petition.(2) In response, the applicant argued that section 2422.16(a) of the Regulations provides that, where the RD "mak[es] other disposition of the matters before the Regional Director," the RD's decision is final. Submission at 3-4. According to the applicant, the RD's final decision to approve the petitioner's request to withdraw his petition is subject to review under section 2422.17.

The Authority's Order, dated January 2, 1996, stated that the applicant had failed to meet the requirements for review under section 2422.17(a) of the Authority's Regulations and dismissed the application. In so doing, the Order rejected the applicant's assertion that because the RD had made "other disposition of the matters" before her, within the meaning of section 2422.16(a), he was entitled to seek review of the RD's action. It explained that section 2422.16(a) applies only in two circumstances, neither of which existed in this case: (1) at the close of a hearing on a petition; and (2) based on the parties' stipulation that no material issues of fact exist. The Order found that the applicable section of the Regulations was section 2422.4(f), which permits an RD either to issue a decision and order, or to approve the withdrawal of a petition, but "not to take both actions simultaneously as they are mutually exclusive." Order at 2-3. The Order stated that "[t]here is no provision in the Authority's Regulations for a party in a representation proceeding to file an application for review of the RD's approval of a request to withdraw a representation petition." Id. at 3.

III. The Applicant's Position

In his motion for reconsideration, the applicant asserts that the Authority: (1) failed to articulate the reasons for its decision dismissing the application; (2) erred in finding that no hearing was held and the parties did not stipulate that no material issues of fact exist; and (3) erred in finding that the RD's action in approving a request to withdraw does not constitute "other disposition" within the meaning of section 2422.16(a) because the action of the RD was "in accordance with the last decision and/or disposition test" in that section. Motion for Reconsideration at 4.

IV. Analysis and Conclusions

The Order dismissing the application was issued on January 2, 1996, more than 60 days after the filing of the application on September 27, 1995. Section 7105(f) of the Statute provides in part that if the Authority does not undertake to grant review of an action taken by a Regional Director within 60 days after the date of the filing of an application for review, the action "shall become the action of the Authority at the end of such 60-day period." Section 2429.23(d) of the Authority's Regulations states that the time limits in section 7105(f) of the Statute "may not be extended or waived under this section." As the Order was issued more than 60 days after the application was filed, the RD's action had become "the action of the Authority" under section 7105(f) of the Statute before the Order was issued and the Order, therefore, was without legal effect. Consequently, inasmuch as the motion for reconsideration seeks to reverse the Order, the motion for reconsideration is moot.

In view of the unique circumstances of this case, we will sua sponte review the merits of the RD's action, which, as noted above, became the action of the Authority, and we will address the contentions raised in the application for review.(3) In so doing, we will assume for the purposes of this decision that, under the Authority's Regulations that pertain to this case, an application for review of a Regional Director's action granting a petitioner's request to withdraw a petition could properly be filed with the Authority.(4)

The applicant states that his application for review is "pursuant to section 2422.17" of the Authority's Regulations. Application at 1. He also states that, as "the specific ground[] for [the] application for review," he "relies upon [the] extraordinary circumstances that warrant[] review by the Authority, in order to avoid the prejudicial [e]ffects of the Regional Director's . . . decision [on] the rights of the Union's designated representative[.]" Id. at 2. The applicant asserts that the RD's approval of Hall's request to withdraw his petition "effectively den[ied]" Rubert "his [s]tatutory rights to act in the capacity of a representative under 5 USC 7102." Id. at 3-4. The applicant also contends that the RD's reliance on "her 'interpretation' of an 'internal' union document" (the letter from the IAFF president) suggests that the RD "sponsored, controlled, or otherwise assisted the labor organization . . . ." Id. at 4.

The essence of the applicant's claim is that the RD's approval of Hall's request to withdraw the petition prejudicially affected Rubert's rights. However, the applicant's assertions regarding the RD's actions and her reliance on the IAFF letter are unsupported. Nothing in the application demonstrates that the RD's action in granting the petitioner's request to withdraw the petition prejudicially affected Rubert's rights or the rights of any party to this case.

Accordingly, on sua sponte review, we conclude that the application for review does not satisfy the requirements of section 2422.17(c) of the Authority's Regulations, and we find no reason to overturn the RD's action.

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

1. Unless otherwise specified, all dates refer to 1995.

2. All references in this decision to the Authority's Regulations pertain to the Regulations in