52:0772(76)AC - - EPA and NFFE, Local 2050 and Environmental Employees Collectively Organized - - 1996 FLRAdec RP - - v52 p772



[ v52 p772 ]
52:0772(76)AC
The decision of the Authority follows:


52 FLRA No. 76

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2050

(Petitioner/Labor Organization)

and

ENVIRONMENTAL EMPLOYEES COLLECTIVELY ORGANIZED

(Labor Organization)

WA-AC-50004

_____

DECISION AND ORDER ON REVIEW

December 31, 1996

_____

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

I. Statement of the Case

The National Federation of Federal Employees, Local 2050 (Local 2050) filed a petition with the Regional Director (RD) to amend its certification to reflect a change in its affiliation from the National Federation of Federal Employees (NFFE National) to the Environmental Employees Collectively Organized (EECO). The RD issued a decision and order dismissing the petition. EECO filed an application for review of the RD's decision and order, and the Authority granted the application for review as to the following issues:

(1) What is the proper construction of the regulatory requirements in section 2422.5 of the Authority's Regulations(1) for intervention in a proceeding involving a petition for amendment of certification?;

(2) Whether the validity of the trusteeship imposed on Local 2050 has been established by the Department of Labor and, if not, whether it is proper for the Authority to presume the validity of the trusteeship;

(3) What is the effect of the trusteeship on whether: (a) Dwight Welch had standing to file the petition in this case; and (b) the trusteeship resulted in a loss of substantial continuity between Local 2050 and EECO within the meaning of NLRB v. Financial Institution Employees of America, Local 1182, 475 U.S. 192 (1986) as adopted by the Authority in U.S. Department of Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 33 FLRA 482 (1988) and 34 FLRA 428 (1990)?; and

(4) Whether Local 2050 demonstrated that its members were provided with adequate notice of the proposed affiliation vote within the meaning of the required procedures established in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974) [Montrose] and adopted by the Authority in Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987) [Florida National Guard].

In response to the Authority's order granting review, EECO filed a supplemental brief. In response to subsequent Authority orders, EECO submitted copies of a decision issued by the Department of Labor relating to the issues in this case, and the American Federation of Government Employees (AFGE) filed an amicus curiae brief.

For the reasons that follow, we find that: (1) the RD properly granted intervention status in this proceeding to NFFE National; (2) the RD properly presumed the validity of the trusteeship in this case; and (3) Dwight Welch lacked authority to file the petition in this case. Accordingly, we affirm the RD's dismissal of the petition.

II. Background and Regional Director's Decision

Since 1984, Local 2050 has been the certified exclusive representative of the Agency's professional employees, located at its Headquarters, Washington, D.C. On September 11, 1994,(2) Local 2050's Executive Board scheduled a special membership meeting, to be held on September 27, to discuss and vote on whether to change the affiliation of Local 2050 from NFFE National to EECO.

On September 21, NFFE National President Sheila Velazco sent a letter to Local 2050 President Welch and the Local's Executive Board, informing them that: (1) NFFE National had imposed an "emergency trusteeship upon Local 2050" (RD's Decision at 6), which included the removal of the Local's officers, effective immediately; (2) the special membership meeting set for September 27 was cancelled; and (3) Eugene Sturdivant had been appointed as trustee of Local 2050 and given custody of the Local's books, charter, and assets, as well as authority to administer Local 2050's collective bargaining agreement with the Agency. By separate letter of the same date, all Local 2050 members were informed of the trusteeship and the appointment of Sturdivant and were notified that the special meeting was cancelled because the calling of the meeting violated the NFFE National constitution.

On September 22, Welch sent a letter to all Local 2050 members advising them that the trusteeship imposed by NFFE National was improper and that the September 27 meeting would proceed as scheduled. On September 26, Welch, as a member of Local 2050, filed a complaint with the Department of Labor (DOL), under 29 C.F.R. § 458.53, challenging the validity of the trusteeship imposed by NFFE National.(3) On September 27, the special meeting was held. The members voted in favor of changing affiliation from NFFE National to EECO. On October 6, an amendment of certification (AC) petition was filed and signed by Welch as "President of Local 2050 of NFFE and EECO (UN-200)." RD's Decision at 9.

In his decision and order, the RD noted that 29 C.F.R. § 457.1 et seq. makes the standards of conduct provisions of the LMRDA applicable to the Federal sector. The RD found that under 29 C.F.R. § 458.26 labor organizations may impose trusteeships on subordinate bodies, and that under 29 C.F.R. § 458.28 trusteeships that are established "in accordance with the union's constitution and bylaws and which have been authorized or ratified in a fair hearing are presumed valid for 18 months." Id. at 11. The RD found that the trusteeship was imposed in accordance with the requirements of 29 C.F.R. § 458.28 because it was imposed by NFFE National pursuant to the provisions of the NFFE National constitution, which is specifically incorporated into the Local 2050 constitution.(4) The RD noted that EECO's claim that the trusteeship was imposed for an illegal purpose constituted a challenge to the validity of the trusteeship imposed on Local 2050 that can only be filed with, and determined by, DOL.

Having found that the trusteeship was imposed in accordance with 29 C.F.R. § 458.28, the RD presumed its validity. The RD noted that under the trusteeship, Local 2050's officers had been removed. The RD found that "the imposition of the trusteeship had the effect of suspending Mr. Welch as President of Local 2050" and, therefore, Welch did not have the authority to file the amendment of certification petition on behalf of Local 2050. Id. The RD further found that, even assuming that the petition had been properly filed, Local 2050 did not comply with the procedures required to validate its attempt to disaffiliate from NFFE National and affiliate with EECO, as established in Montrose and adopted by the Authority in Florida National Guard. Accordingly, the RD dismissed the petition.

III. Positions of the Parties and the Amicus (5)

A. EECO

EECO argues that the RD erred in allowing NFFE National to intervene in this case because NFFE National: (1) did not file its request to intervene within the 10-day period required by section 2422.5(c) of the Authority's Regulations; (2) cannot be considered an automatic intervenor under section 2422.5(c), because that section pertains only to petitions filed under section 2422.5(a); and (3) did not satisfy the requirement of section 2422.5(f) that it demonstrate how the petition affected a NFFE National bargaining unit.

According to EECO, the reason that Local 2050 was placed in trusteeship "was solely because the local membership had taken it upon themselves to change their affiliation." Supplemental Brief at 3. EECO contends that this reason is not one of the permissible reasons for imposing a trusteeship under 29 C.F.R. § 458.26, and the RD therefore erred in presuming the validity of the trusteeship. Additionally, EECO notes that the decision of DOL has been appealed and is not final.

EECO contends that, even if the trusteeship was valid, the RD erred in assuming "that the trusteeship suspended operation of the NFFE Local 2050 constitution." Supplemental Brief at 7 n.3. EECO argues that the Local's constitution could not be, and was not, suspended by NFFE National. According to EECO, the affiliation meeting, held in accord with the provisions of the Local's constitution, mandated Welch to file the AC petition. Therefore, EECO argues, the RD erred in finding that Welch lacked authority to file the petition.

B. AFGE's Amicus Statement

AFGE notes that parent labor organizations may impose trusteeships on local labor organizations and that such trusteeships must be presumed valid under 29 C.F.R. § 458.28. AFGE also notes that local labor organizations have a right to change or sever affiliation by following the requirements of Montrose, as adopted by the Authority in Florida National Guard. In AFGE's view, where a parent labor organization has imposed a valid trusteeship prior to a disaffiliation vote having been taken by a local labor organization, the trusteeship must be presumed valid and any disaffiliation vote taken would be of no effect. AFGE asserts that, on the other hand, where a local labor organization has conducted a disaffiliation vote in a manner consistent with the requirements of Montrose, a trusteeship imposed by its former parent labor organization after the disaffiliation vote has been taken should be found to have no effect on the vote and should not prevent the filing of an AC petition based on that vote.(6)

IV. Analysis and Conclusions

A. NFFE National Was Properly Allowed to Intervene in This Proceeding

The petition in this case is an AC petition. A labor organization seeking to intervene in an AC petition is subject to the requirements of section 2422.5(c), including the requirement that the labor organization notify the RD, normally within the 10-day posting period, of its desire to intervene. However, section 2422.5(c) also provides that an incumbent exclusive representative is automatically considered an intervenor and is, therefore, not subject to the 10-day filing requirement.(7) In this regard, we reject EECO's assertion that automatic intervention pertains only to petitions filed under section 2422.5(a). Section 2422.5(c) provides for automatic intervention in petitions filed under section 2422.2(c), as here.

In order to determine whether NFFE National was properly allowed to intervene, we must first determine who is the incumbent exclusive representative. We find that Local 2050 is the incumbent exclusive representative, under the criteria established in Defense Commissary Agency, Defense Commissary Store, Fort Drum, New York, 50 FLRA 249, 252-53 (1995) (Fort Drum). In Fort Drum, the Authority found that a union qualifies as an incumbent "when it is the exclusive representative of all the employees in the unit sought by a petition, either in the unit covered by the petition or as part of a larger unit, only a portion of which is involved in the proceeding." 50 FLRA at 253. Local 2050 is the certified exclusive representative of all the employees in the unit affected by this petition.

Because it is the incumbent exclusive representative, Local 2050 was entitled to automatic intervention under section 2422.5(c), without regard to the 10-day filing requirement prescribed in section 2422.5(c).(8) As we find below, the trusteeship imposed by NFFE National on Local 2050 was properly presumed valid by the RD. Therefore, NFFE National, as trustee for Local 2050, likewise was not subject to the requirements of those sections.(9)

Accordingly, we reject EECO's arguments in this regard and find that the RD properly allowed NFFE National to intervene in this proceeding.

B. The Assistant Secretary Has Initial Jurisdiction to Determine the Validity of Trusteeships

Section 7120 of the Statute sets forth standards of conduct for labor organizations that have or are seeking recognition under the Statute to represent employees. Section 7120(c) requires such labor organizations to comply with trusteeship and election standards. Section 7120(d) requires the Assistant Secretary to prescribe such regulations as are necessary to carry out the purposes of the section.

The portions of the Assistant Secretary's implementing regulations dealing with trusteeships are found at 29 C.F.R. § 458.26-28.(10) Section 458.26 sets forth the allowable purposes of a trusteeship. Section 458.28 provides that, when a trusteeship is established by a labor organization in conformity with the procedural requirements of its constitution and bylaws, including authorization or ratification after a fair hearing, the trusteeship shall be presumed valid for a period of 18 months from the date of its establishment.

Section 7120(d) provides that complaints of violations of section 7120 must be filed with the Assistant Secretary, who may require the labor organization to cease and desist from violations of section 7120 and to take such actions as the Assistant Secretary considers appropriate. If the required remedial action is not taken, the Assistant Secretary "shall refer the matter to the [FLRA] for appropriate action." 29 C.F.R. § 458.92.

As reflected in the Assistant Secretary's regulations, the standards of conduct provisions in section 7120 of the Statute include trusteeship matters. See 29 C.F.R. § 458.26-28. In AFGE v. FLRA, 834 F.2d 174 (D.C. Cir. 1987), the D.C. Circuit addressed whether the Assistant Secretary of Labor has exclusive jurisdiction with respect to matters under section 7120 of the Statute. The court cited legislative history noting that section 7120 provides for the concurrent jurisdiction of the Assistant Secretary and the Authority, "except for decisions relating to alleged violations of the standards of conduct for labor organizations." Id. at 177-78 n.9. The court pointed to legislative history stating that "[t]he initial jurisdiction to decide alleged violations of the standards of conduct for labor organizations will be retained by the Assistant Secretary" and found that, "in its specific discussion of section 7120(d), the Senate envisioned" limiting the Authority's role to "'review[ing] the Assistant Secretary standards of conduct decisions . . . .'"  Id. (11) We agree with the court's construction of section 7120 and, accordingly, find that the Assistant Secretary, not an RD, has initial jurisdiction to determine the validity of trusteeships, and that the Authority's role is limited to reviewing a decision by the Assistant Secretary.

C. An RD May Presume the Validity of Trusteeships Under Certain Circumstances

As Local 2050 did in this case, an incumbent local labor organization may file a petition to amend its certification to reflect a change in the incumbent's affiliation on the basis of a Montrose vote.(12) In this case, however, the authority of the person purporting to act for the incumbent labor organization has been challenged by a parent labor organization on the basis that the incumbent was placed in trusteeship by the parent labor organization prior to the taking of the Montrose vote, and a complaint filed under 29 C.F.R. § 458.53 challenging the validity of the trusteeship is pending before the Assistant Secretary. There is no Authority precedent on the issue of whether the RD should process, place in abeyance, or dismiss the petition.

In enacting the Statute, Congress expressly recognized that "the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing" in decisions affecting them "safeguards the public interest" and "contributes to the effective conduct of public business . . . ." 5 U.S.C. § 7101(a)(1). In addition, in § 7101(b), Congress directed that the Statute be "interpreted in a manner consistent with the requirement of an effective and efficient Government."

Consistent with this statutory framework, the Authority has long held that representation matters must be resolved expeditiously. See United States Department of Justice, Immigration and Naturalization Service, Western Regional Office, 20 FLRA 71, 75 (1985) (discussing purposes served by delegation of authority to RDs in representation cases). In addition, in order to resolve such matters in a way that promotes the effective and efficient use of Government resources, it is desirable to follow processes that minimize the potential for overlapping or inconsistent guidance from different Governmental bodies. In this regard, as set forth above, resolving the representation petition in this case implicates a matter within the jurisdiction of both the Authority and the Assistant Secretary.

Applying these principles in this case, we conclude that cases wherein it is necessary to determine whether to process a petition in the circumstances specified should be resolved as follows:

1. Where the Regional Director determines that a trusteeship was established "in conformity with the procedural requirements of [the parent labor organization's] constitution and bylaws and authorized or ratified after a fair hearing either before the executive board or before such other body as may be provided in accordance with its constitution and bylaws[,]" as provided by 29 C.F.R. § 458.28, the Regional Director, in the absence of a final decision by the Assistant Secretary resolving the trusteeship matter, will presume the validity of the trusteeship and will dismiss the petition on the ground that the person purporting to act for the incumbent labor organization has no authority to act.

2. Where the Regional Director determines that a trusteeship was not established "in conformity with the procedural requirements of [the parent labor organization's] constitution and bylaws and authorized or ratified after a fair hearing either before the executive board or before such other body as may be provided in accordance with its constitution and bylaws[,]" as provided by 29 C.F.R. § 458.28, the Regional Director, in the absence of a final decision by the Assistant Secretary resolving the trusteeship matter, will place the petition in abeyance. Upon being notified by the parties of the issuance of a final decision by the Assistant Secretary, the Regional Director will take appropriate action in light of that decision to either process or dismiss the petition.(13)

D. The RD Properly Presumed the Validity of the Trusteeship In This Case

The record shows that NFFE National gave notice to Local 2050's President, Executive Board, and membership on September 21 that it had established the trusteeship and cited to the provisions of its constitution that allowed such a trusteeship. NFFE National informed the officers and members that it had removed the authority of the officers and appointed a trustee, in whom it vested sole authority to act on behalf of Local 2050. NFFE National also informed the officers and members that a hearing would be held on the matter within 90 days. A hearing was held on December 6, within 90 days of the September 21 notice, and the trusteeship was upheld by the President of NFFE.

We affirm the RD's finding that NFFE National's establishment of the trusteeship was in conformity with the provisions of the NFFE National constitution, which include provisions for a fair hearing (see note 4, above). It is undisputed that the trusteeship was established prior to the taking of the Montrose vote and that no final decision has been issued resolving the trusteeship matter. See note 3, above. Accordingly, applying the standard set forth above, we find that it was proper in this case for the RD to presume the validity of the trusteeship.(14)

E. Welch Had No Authority to File the Petition

Section 2422.1(d) of the Authority's Regulations provides that an AC petition "may be filed by an activity or agency or by a labor organization which is currently . . . an exclusive representative." Welch did not have standing to file the petition in this case as an individual; only Local 2050 had standing to file the petition. See note 11, above. Welch filed the petition as president of Local 2050 on October 6. However, his authority to act as president of Local 2050 had been removed by NFFE National on September 21.

Accordingly, we conclude that Welch lacked authority to file the petition in this case and we dismiss the petition on that basis. In view of this conclusion, it is unnecessary to address the remaining issues in this case.

V. Order

The petition is dismissed.

APPENDIX A

Section 2422.5 Intervention

(a) No labor organization will be permitted to intervene in any proceeding involving a petition filed pursuant to § 2422.2(a) or (b) unless it has submitted to the Regional Director a showing of interest of ten percent (10%) or more of the employees in the unit specified in the petition . . . , or has submitted a current or recently expired agreement with the activity covering any of the employees involved, or has submitted evidence that it is the currently recognized or certified exclusive representative of any of the employees involved: Provided, however, That an incumbent exclusive representative shall be deemed to be an intervenor in the proceeding unless it serves on the Regional Director a written disclaimer of any representation interest for the employees in the unit sought . . . .

. . . .

(c) No labor organization may participate to any extent in any representation proceeding unless it has notified the Regional Director in writing, accompanied by its showing of interest as specified in paragraph (a) of this section, of its desire to intervene within ten (10) days after the initial date of posting of the notice of petition as provided in § 2422.4(a), unless good cause is shown for extending the period. . . . Provided, however, That an incumbent exclusive representative shall be deemed to be an intervenor in the proceeding in accordance with paragraph (a) of this section.

. . . .

(f) The Regional Director may grant intervention to a labor organization in a proceeding involving a petition . . . for amendment of recognition or certification filed pursuant to § 2422.2(c) . . . based on a showing that the proposed . . . amendment . . . affects that labor organization's existing exclusively recognized unit(s) in that it would cover one or more employees who are included in such unit(s).

APPENDIX B

5 U.S.C. §§ 7120(c) and (d) provide:

(c) A labor organization which has or seeks recognition as a representative of employees under this chapter shall file financial and other reports with the Assistant Secretary of Labor for Labor-Management Relations, provide for bonding of officials and employees of the organization, and comply with trusteeship and election standards.

(d) The Assistant Secretary shall prescribe such regulations as are necessary to carry out the purposes of this section. Such regulations shall conform generally to the principles applied to labor organizations in the private sector. Complaints of violations of this section shall be filed with the Assistant Secretary. In any matter arising under this section, the Assistant Secretary may require a labor organization to cease and desist from violations of this section and require it to take such actions as he considers appropriate to carry out the policies of this section.

29 C.F.R. § 457.1, in relevant part, provides:

The regulations contained in this subchapter are designed to implement 5 U.S.C. 7120 . . ., which relate[s] to the standards of conduct for labor organizations in the Federal sector set forth in title VII of the Civil Service Reform Act of 1978 . . . . They prescribe procedures and basic principles which the Assistant Secretary of Labor will utilize in effectuating the standards of conduct required of labor organizations composed of Federal government employees that are covered by th[is] Act[]. (Regulations implementing the other provisions of title VII . . . are issued by the Federal Labor Relations Authority . . . .)

APPENDIX B (continued)

29 C.F.R. § 458.26 provides:

Trusteeships shall be established and administered by a labor organization over a subordinate body only in accordance with the constitution and bylaws of the organization which has assumed trusteeship over the subordinate body and for the purpose of (a) correcting corruption or financial malpractice, (b) assuring the performance of negotiated agreements or other duties of a representative of employees, (c) restoring democratic procedures, or (d) otherwise carrying out the legitimate objects of such labor organization.

29 C.F.R. § 458.28 provides:

In any proceeding involving § 458.26, a trusteeship established by a labor organization in conformity with the procedural requirements of its constitution and bylaws and authorized or ratified after a fair hearing either before the executive board or before such other body as may be provided in accordance with its constitution and bylaws shall be presumed valid for a period of 18 months from the date of its establishment and shall not be subject to attack during such period except upon clear and convincing proof that the trusteeship was not established or maintained in good faith for purposes allowable under § 458.26. After the expiration of 18 months the trusteeship shall be presumed invalid in any such proceeding, unless the labor organization shall show by clear and convincing proof that the continuation of the trusteeship is necessary for a purpose allowable under § 458.26.




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

1. All references in this decision to the Authority's Regulations pertain to the Regulations in effect prior to March 15, 1996. Relevant sections of those Regulations are found in Appendix A. The revised representation Regulations that became effective on that date apply only to petitions filed on or after March 15, 1996, and, therefore, do not apply in this case. See Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 938 n.6 (1996).

2. All dates not otherwise specified refer to 1994.

3. On February 15, 1996, DOL's Division of Elections and Trusteeships issued a decision dismissing the complaint. Noting that a trusteeship is presumed valid for 18 months, the decision found that DOL's investigation failed to disclose any violation of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq. (LMRDA), upon which DOL may bring action. On March 11, 1996, EECO appealed that decision to DOL's Assistant Secretary of Labor for Labor-Management Relations (Assistant Secretary) under 29 C.F.R. § 458.64(c). According to the record before us, the appeal is pending.

4. The RD did not make specific findings as to whether a hearing was held. However, the record shows that NFFE National conducted a hearing on the trusteeship on December 6, 1994, and the President of NFFE, on February 3, 1995, upheld the trusteeship. The trusteeship provisions of NFFE National's constitution contain detailed hearing procedures, and there is no indication in the record that the fairness of NFFE National's hearing was raised as an issue before the RD. Moreover, in its February 15, 1996 decision, DOL found that: (1) NFFE National followed proper procedures in establishing the trusteeship; and (2) the specific hearing procedures challenged by the complaint did not violate the NFFE National constitution or the LMRDA.

5. The Agency did not file any submission with the Authority. NFFE opposed AFGE's request to file an amicus brief, but did not file any other submission with the Authority.

6. AFGE did not take a position as to what findings should be made on the facts in this case.

7. Section 2422.5(c) also provides that an incumbent labor organization may be denied automatic intervention if it disclaims any representation interest, or declines to cooperate. As there is no assertion that Local 2050, or NFFE National, disclaimed interest in representing the unit employees or declined to cooperate in the proceeding, this portion of the provision does not apply in this case.

8. Section 2422.5(f) provides that the RD may grant intervention to a labor organization that shows that a petition for amendment of certification affects one or more employees in that labor organization's existing exclusively recognized unit(s). Because Local 2050 is the certified exclusive representative of all the employees in the unit affected by this petition and thus was entitled to automatic intervention, we find, contrary to EECO's assertion, that Local 2050 thereby also satisfied the requirements of section 2422.5(f).

9. The petition was filed by Welch, as president of Local 2050 and as president of EECO, under section 2422.2(c) of the Authority's Regulations. However, because the petition sought an amended certification to show that EECO, rather than Local 2050, should be the exclusive representative, we find that, for the purpose of determining the status of each entity under the Regulations, EECO was effectively the petitioner and NFFE National, as trustee for Local 2050, was an intervenor.

10. Relevant portions of section 7120 and the Assistant Secretary's regulations are set forth in Appendix B.

11. The Authority provides for that reviewing role in section 2428 of its Regulations, en