54:0330(40)RP - - HHS, Navajo Area Idian Health Service, Shiprock, NM & NAGE Local R14-146 & NAGE & Navajo Nation Health Care Employees, Local 1376, Laborers' International Union of North America - - 1998 FLRAdec RP - - v54 p330
[ v54 p330 ]
The decision of the Authority follows:
54 FLRA No. 40
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF HEALTH AND HUMAN SERVICES
NAVAJO AREA INDIAN HEALTH SERVICE
SHIPROCK, NEW MEXICO
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R14-146 (SEIU, AFL-CIO)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
NAVAJO NATION HEALTH CARE EMPLOYEES, LOCAL 1376
LABORERS' INTERNATIONAL UNION OF NORTH AMERICA
ORDER DENYING APPLICATION FOR REVIEW
May 29, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on an application for review filed by the National Association of Government Employees (NAGE) under section 2422.31 of the Authority's Regulations seeking review of the Regional Director's (RD's) Decision and Order on a petition to amend a certification of representative (petition). No opposition to the application was filed.
The RD found that the change in affiliation that was sought by the National Association of Government Employees, Local R14-146, SEIU/AFL-CIO was accomplished in a manner consistent with the procedures set forth in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974), review denied 3 FLRC 259 (1975) (Montrose). The RD, therefore, granted the requested change in affiliation from National Association of Government Employees, Local R14-146, SEIU/AFL-CIO (Local R14-146) to the Navajo Nation Health Care Employees, Local 1376, Laborers' International Union of North America, AFL-CIO (LIUNA).
For the reasons that follow we deny the application for review.
II. Background and RD's Decision
On March 28, 1988, Local R14-146 was certified as the exclusive representative of a unit of health care employees at the U.S. Public Health Service, Indian Health Service Hospital, Shiprock, New Mexico, including employees who work at the Teecnospos Clinic in Arizona.(1) There are approximately 332 members in the unit.
On May 21, 1997, a notice to all Local R14-146 members was posted throughout the Northern Navajo Medical Health Center (Health Center) advising them of a special meeting. The notice stated that the purpose of the special meeting was to discuss and vote on changing the Local's affiliation. Thereafter, the special meeting was held and the members who were in attendance voted unanimously (23-0) to change the unit's affiliation from Local R14-146 to LIUNA. A petition to effect the change in certification from Local R14-146 to LIUNA was filed by its Chief Steward.
The Regional Office conducted an investigation of the petition. As a result of the investigation, the RD concluded that the change in affiliation met the procedural requirements of Montrose. Specifically, the RD found that: notices of a special meeting were posted on bulletin boards throughout the Health Center and stated that all unit members were invited to an important meeting for the sole purpose of discussing and voting on a proposal to change the Local's affiliation; the ballot clearly set forth the choices inherent in the proposed change in affiliation and did so in accurate and neutral language; adequate opportunity for presentation and discussion of the agenda was provided; the secrecy of the ballots was maintained at all times; and the meeting was held at a place and time convenient to the members.
In addition, the RD found that the change in affiliation would not affect the continuity of representation because the Local's officers, Constitution, autonomy and day-to-day operations would remain unchanged and the collective bargaining agreement would remain in effect. The RD also noted that the Activity had indicated its willingness to recognize and deal with the union that unit members selected. Based on these findings, the RD granted the petition.
III. Application for Review
NAGE seeks review of the RD's decision under section 2422.31(c) of the Authority's Regulations (2) and urges the Authority to reverse the RD.(3) In support of this position, NAGE sets forth two grounds.
First, NAGE claims that the Montrose requirements were not followed. In this connection, NAGE argues that the notice advising unit members of the meeting regarding a change in Local R14-146's affiliation did not specifically state that it was a "special meeting" or include any reference to LIUNA. In addition, NAGE maintains that adequate advance notice was not provided to the entire Local membership because the minutes of the meeting state that another voting session was needed "to allow union members who were ill, on a day off, or on annual leave a chance to vote." Application at 3.
NAGE also maintains that in the petition to amend certification, Local R14-146 advised the RD that "during this process, members were given an opportunity to discuss the issue of affiliation by talking to the Union officers." Id. at 3 (quoting the petition to amend certification). However, according to NAGE, there was no opportunity because none of the Local's officers was present. NAGE, accordingly, submits that the Montrose criteria mandating that there be adequate time for discussion of the proposed change was not met.
The second ground advanced by NAGE is that Local R14-146 lacked standing to file the petition. According to NAGE, in U.S. Army Reserve Command, 88th Regional Support Command, Fort Snelling, Minnesota, 53 FLRA 1174 (1998) (Fort Snelling), the Authority held that a petition to amend a certificate to reflect a union's change in affiliation may be filed only by the organization that is the exclusive representative. NAGE contends that Local R14-146 did not have standing to file the petition because Local R14-146 is not the exclusive representative, but is "merely an arm" of the national organization. Id.
NAGE explains that in 1988, before the representation petition resulting in Local R14-146's certification was filed, "a request was submitted to NAGE's National President (in accordance with NAGE's Constitution and By-laws) for assignment of a local number." Id. at 3. NAGE submits that the representation petition was then filed on behalf of the Health Center's employees by a staff member of NAGE. As the petition was not filed by a Health Center employee, NAGE asserts that it was the national organization that was certified and not Local R14-146.
Assuming arguendo that the national organization is not the exclusive representative, NAGE submits, based on U.S. Environmental Protection Agency, Washington, D.C., 52 FLRA 772 (1996) (EPA), that the Chief Steward of Local R14-146 did not have the authority to act on its behalf. NAGE explains that Article VI of the NAGE By-laws defines the Chief Steward's duties and nowhere in this article is the Chief Steward given the authority to act on behalf of the Local except in the grievance arena. Nor, NAGE asserts, did the Local's President or the Vice-President authorize the Chief Steward to act on its behalf. According to NAGE, review must be granted on this basis alone.
IV. Analysis and Conclusions
For the reasons that follow, we conclude that NAGE has not established that compelling reasons exist for granting its application for review under section 2422.31(c) of the Authority's Regulations.
A. There is No Genuine Issue as to Whether the RD Failed to Apply Established Precedent with Respect to the Montrose Criteria
The Authority has held that in order to amend the designation of an exclusive representative in an existing unit to reflect a change in affiliation, the procedures set forth in Montrose must be followed. Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987). See also U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 46 FLRA 76 (1992) (Rock Island). Thus, to ensure that an amendment of certification conforms to the desires of a union's membership, four procedural criteria must, at a minimum, be met:
(1) A proposed change in affiliation should be the subject of a special meeting of the members of the incumbent labor organization, called for this purpose only, with adequate advance notice provided to the entire membership; (2) the meeting should take place at a time and place convenient to all members; (3) adequate time for discussion of the proposed change should be provided, with all members given an opportunity to raise questions within the bounds of normal parliamentary procedure; and (4) a vote by the members of the incumbent labor organization on the question should be taken by secret ballot, with the ballot clearly stating the change proposed and the choices inherent therein.
Montrose, 4 A/SLMR at 860.
As previously noted, the RD in this case examined the circumstances culminating in the petition to amend the certification of Local R14-146 and concluded, pursuant to Montrose, that the requisite procedural requirements had been met. Despite the contentions advanced by NAGE, we find that the RD's decision is consistent with that decision.
First, we find that under Montrose, there is no requirement that the notice of the "special meeting" be explicitly designated as such or that it explicitly reference the union with which affiliation is proposed. Rather, Montrose mandates only that the notice of the special meeting clearly and adequately inform members of the incumbent union of the nature of the proposed change. See Union of Federal Employees, 41 FLRA 562 (1991). The RD found that the notice in this case met these requirements and NAGE has failed to establish that the RD's finding failed to apply established precedent. Accordingly, this contention must be rejected.
We also reject NAGE's claim that the RD failed to apply established precedent because adequate advance notice of the meeting was not provided to unit members as Montrose specifically requires. There is no requirement that any specific number or percentage of members must cast ballots in order for an affiliation change to be effective. See Rock Island, 46 FLRA at 83. Moreover, NAGE has provided no evidence to indicate that unit members believed they were denied the opportunity to vote, that the meeting place or time was inconvenient, or that the vote does not reflect the wishes of unit members. In the absence of such evidence, there is no basis on which to conclude that adequate notice was not provided.
Finally, NAGE argues that the RD erred in finding that the Montrose requirements had been met because unit members were not provided an opportunity to discuss the proposed affiliation with Local R14-146's officers. We note, however, that Montrose requires only that "adequate time for discussion of the proposed change should be provided, with all members given an opportunity to raise questions within the bounds of normal parliamentary procedures[.]" Id. at 858. As such, this argument must be rejected.
Based on the foregoing, we find that NAGE has not demonstrated that the RD failed to apply established precedent as set forth in Montrose. Consequently, we conclude that this ground provides no basis for granting the application for review under section 2422.31(c)(3)(i) of the Authority's Regulations.
B. There Is No Genuine Issue as to Whether the RD Failed to Apply Established Precedent With Respect to Local R14-146's Standing to File the Petition
Once a labor organization has complied with the procedural requirements set forth in Montrose, it must file a petition to amend its certification to reflect the change in its affiliation. The petition at issue in this case was filed by the Chief Steward of Local R14-146. In its application for review, NAGE maintains that the RD's decision must be reversed because Local R14-146 was not the exclusive representative and, therefore, did not have standing to file the petition. NAGE further submits that, even assuming that it was, the Chief Steward of Local R14-146 did not have authority to act on its behalf.
As NAGE correctly observes, a petition to amend a certificate to reflect a union's change in affiliation may be filed only by the organization that is the incumbent exclusive representative. See Fort Snelling, 53 FLRA at 1177; EPA, 52 FLRA at 782. For example, in U.S. Department of Defense, National Guard Bureau, New York National Guard, Division of Military and Naval Affairs, Latham, New York, 46 FLRA 1468, 1473-74 (1993), the Authority held that a local union did not have standing to file a petition to amend its certification where its parent national union was certified as the exclusive representative. Similarly, in EPA, the Authority held that petitions to amend certification may only be filed on behalf of an incumbent union by one who has authority to act for it. 52 FLRA at 782.
In this case, the certification of the exclusive representative is contained in the record. The certification establishes that Local R14-146 was certified as the exclusive representative of the employees in the bargaining unit on March 28, 1988. In addition, NAGE does not allege and there is no evidence to indicate that Local R14-146 amended its certification after it was issued or that any other action was taken to cause NAGE to become the exclusive representative. Consequently, we find that the RD's decision is consistent with our precedent.
We also reject NAGE's claim that the Chief Steward of Local R14-146 did not have the authority to act on its behalf. We note in this connection that the record contains a document signed by the President of Local R14-146 stating that he had authorized the Chief Steward to file the petition in order to effect a change in the Local's affiliation from NAGE to LIUNA. We further note that NAGE does not dispute the authority of the Local President to act on its behalf. As such, we find that the RD's decision is consistent with our precedent as enunciated in Fort Snelling and EPA.
Based on the foregoing, we find that this ground fails to demonstrate that review of the RD's decision is warranted under section 2422.31(c)(3)(i) of the Authority's Regulations due to a departure from precedent. Accordingly, we reject it.
The application for review of the RD's decision and order is denied.
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. The certified unit is described as follows:
INCLUDED: All Wage Grade and General Schedule employees, all temporary, part-time and intermittent employees (both professional and non-professional) who are employed for more than 90 days; and all professional employees employed by the U.S. Public Health Service, Indian Health Service Hospital, Shiprock, New Mexico, including those employees working at the Teecnospos Clinic, Arizona.
EXCLUDED: All supervisors; management officials; all temporary, part-time and intermittent employees (both professional and non-professional) who are employed for 90 days or less; employees of the Dzilth-Na-O-Dith-HLE Health Center, New Mexico; and employees described in 5 U.S.C. 7112 (b)(2),(3),(4),(6) and (7).
RD's Decision at 2.
2. Section 2422.31(c) of the Authority's Regulations provides that the Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
3. We note that in its application, NAGE requests review pursuant to sections 2431.31 and 2422.17(c)(1) and (c)(4) of the Authority's Regulations.
Sections 2422.17(c)(1) and (c)(4) concern applications for review under the Authority's old representation Regulations. We, therefore, consider NAGE's application to have been filed under the counterparts to those sections -- sections 2422.31(c)(3)(i) and (c)(iii) -- of the Authority's current representation Regulations. Nevertheless, our review of NAGE's application fails to disclose any argument that supports a challenge to the RD's decision under section 2422.31(c)(3)(iii). Consequently, we do not address this contention.
As concerns NAGE's request for review pursuant to section 2431.31, we note that this section does not exist under the Authority's current Regulations or its old Regulations.