54:0562(58)RP - - SBA and Jeffrey W. Eisinger [ SBA = Small Business Administration ] - - 1998 FLRAdec RP - - v54 p562
[ v54 p562 ]
The decision of the Authority follows:
54 FLRA No. 58
FEDERAL LABOR RELATIONS AUTHORITY
SMALL BUSINESS ADMINISTRATION
JEFFREY W. EISINGER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Exclusive Representative/Labor Organization)
DECISION AND ORDER ON REVIEW
June 30, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)
I. Statement of the Case
By order dated February 6, 1998, the Authority granted the application for review of the Regional Director's Decision and Order Dismissing Petition, filed by the Petitioner, Jeffrey W. Eisinger, who filed the petition as an individual. The Agency, the Small Business Administration, filed an opposition to the application for review.(2)
The petition sought clarification of, or an amendment to, a certification of exclusive representative for a consolidated unit of employees of the SBA. The Regional Director dismissed the petition on the basis of his finding that under section 2422.2(c) of the Authority's Regulations, only an agency or a labor organization may file such a petition.(3)
The Authority granted review of the Regional Director's decision on the basis that there was an absence of precedent regarding the Petitioner's assertion that sections 7111(b)(2) and 7103(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) require that the Petitioner be permitted to file a petition for clarification or amendment of certification as an individual. Section 7111(b)(2) provides that if a petition is filed by "any person seeking clarification of, or an amendment to, a certification then in effect . . . the Authority shall investigate the petition[,]" and section 7103(a)(1) defines "person" as "an individual, labor organization, or agency[.]"
For the reasons that follow, we affirm the Regional Director's decision to dismiss the petition.
II. Background and Regional Director's Decision
The bargaining unit consists of professional and nonprofessional employees of the Agency. According to the petition, employees of the Fresno District Office are subject to the Agency's Master Agreement with the American Federation of Government Employees (AFGE), the unit's exclusive representative. The unit was consolidated on August 22, 1978 (case no. 22-08517 UC) and on October 15, 1981 (case no. 3-CU-89). In 1989, the Agency created the Fresno Commercial Loan Servicing Center in Fresno, California (the Fresno Center). Also according to the petition, in October 1995 the Fresno Center became a separate office. There are approximately 50 unit employees in the Fresno Center.
Eisinger, the Petitioner, seeks "a determination" that the professional and nonprofessional employees of the Fresno Center "are not subject to" the collective bargaining agreement between the Agency and the Union. As will be explained below, in effect the petition seeks to clarify the unit to exclude the Fresno Center employees from the consolidated unit. AFGE and the Activity assert these employees are properly included.
The Regional Director issued an order to show cause why the petition should not be dismissed as improperly filed because the Authority's Regulations provide that a petition may be filed to clarify and/or amend an existing certification only by an agency or a labor organization. Section 2422.2(c) and 2422.1(b) of the Regulations.
Eisinger's answer to the show cause order conceded that under the Regulations he has no standing to file the petition. However, he noted that section 7111(b)(2) of the Statute provides that any "person" can file a petition seeking clarification of a certification. He argued that he is a "person" as defined in the Statute, because under section 7103(a)(1), a "person" is "an individual, labor organization, or agency" and the Statute has precedence over the Regulations. Therefore, he argued that his petition should not be dismissed. In support, he cited U.S. Small Business Administration and Robert Wildberger, Case No. WA-CA-20820, ALJ Dec. Rep. No. 113 (1994) (Wildberger).(4)
B. Regional Director's Decision
The Regional Director concluded that the petition could not be processed because section 2422.2(c) of the Regulations "clearly limits the ability of certain 'persons' to file particular petitions and have them processed." Regional Director's Decision at 3. Accordingly, the Regional Director found that the Petitioner lacks standing to file this petition, and he dismissed the petition.
III. Positions of the Parties
The Petitioner asserts that the Regional Director improperly gave greater weight to the Regulations than the Statute, which is erroneous because the Statute has precedence over the Regulations.
The Agency asserts in its opposition that "the issue of the status of the Loan Servicing Center Employees has been decided [in the certification process]," and that the Regional Director's decision was correct. Agency Opposition at 2.
For the reasons set forth in the following concurring opinions, we find that 5 C.F.R. § 2422.2 is not inconsistent with the Statute. We affirm the decision of the Regional Director and dismiss the petition.
Phyllis N. Segal, Chair, concurring:
I write separately to explain why I conclude that our regulations correctly implement Congress' intent for participation in the representation process.
Section 7111 of the Statute sets out the procedures to be followed for the creation, termination, or modification of a union's "exclusive recognition" to represent a particular "appropriate unit" of employees. 5 U.S.C. § 7111(b)(1)(A), (b)(1)(B),(b)(2). Under this section, modification of the formal certification that defines an existing bargaining unit is accomplished through a petition "by any person seeking clarification of, or an amendment to, a certification then in effect or a matter relating to representation." 5 U.S.C. § 7111(b)(2).
Such petitions to clarify or amend an existing certification are filed for several purposes. For example, a petition to amend a certification may be aimed at modifying the wording of a certification to accommodate a nominal or technical change of an activity or exclusive representative. See Naval Aviation Depot, Naval Air Station, Alameda, California, 47 FLRA 242, 243 (1993). A petition to clarify a unit may be used to determine whether a particular position is properly included within a certification, see American Federation of Government Employees, Local 3723 and U.S. Department of the Navy, Navy Exchange Service Center, 49 FLRA 1256, 1258 (1994), to determine whether a particular individual is included within a certificate, see Federal Trade Commission, 35 FLRA 576, 583 (1990), or to determine the proper scope of a bargaining unit after an agency reorganization of its functions. United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950 (1997).(1)
Implementing the Statute, the Authority's regulations provide that only certain classes of parties have standing to file a petition for a particular purpose. Only agencies and unions have standing to file petitions to clarify or amend certifications. 5 C.F.R. § 2422.2(c). Only unions have standing to file petitions for an election, and only individual employees who no long longer wish to be represented may file petitions to terminate the union's representation. 5 C.F.R. § 2422.2(a),(b).
The Authority's rules concerning petitions to clarify or amend bargaining certifications continue a practice that is long-established. Such petitions were employed in the federal labor relations program prior to 1979 under the precursor to the Statute, Executive Order 11491. See Headquarters, U.S. Army Aviation Systems Command, 2 A/SLMR 279, 280 (1972). The Executive Order program was administered by the Assistant Secretary of Labor for Labor Management Relations (the Assistant Secretary). The Assistant Secretary's regulations implementing this aspect of the program provided that amendment and unit clarification petitions could be filed by "an activity or agency or by a labor organization which is currently recognized. . . ." 5 C.F.R. § 202.1(d)(1995).
The practice of both the Authority and the Assistant Secretary with respect to amendment and unit clarification petitions parallels the practice of the National Labor Relations Board (NLRB) in the private sector. The NLRA does not explicitly address the use of petitions to amend certifications or clarify units. See 29 U.S.C. § 159. However, the NLRB has long provided for such petitions in its Rules and Regulations. See 29 C.F.R. § 102.60(b). The NLRB's regulations providing for amendment and clarification petitions similarly provide that such petitions can be filed only by a labor organization or an employer. 29 C.F.R. § 102.60(b).(2) The NLRB regulations do not provide for the filing of either type of petition by individuals.
Thus, in restricting the filing of petitions to clarify or amend certifications to agencies and unions the Authority has adopted an identical practice as that used by the Assistant Secretary under the predecessor federal labor relations program and by the NLRB. I am persuaded for the following reasons that following this long-standing practice is proper under the Statute.
1. It would not be appropriate for individuals to be permitted to file clarification and amendment petitions
There are compelling program and practical considerations which lead me to conclude that the practice of limiting the standing of individuals to file clarification and amendment petitions is sound. All of the representation determinations that are made under section 7111 are institutional, rather than solely individual, and the Statute does not contemplate that individual employees, acting alone, will have a particular role in this aspect of the labor relations program.
The decision of employees to be represented by, or not to be represented by, a union is by its nature a collective, rather than an individual decision. As such, petitions to certify or terminate a union's status as a representative are not filed by one employee or union representative; the Statute requires that they be accompanied by the signatures of 30 percent of the proposed or existing bargaining unit. 5 U.S.C. § 7111(b)(1).(3)
Similarly, the considerations that the Statute dictates the Authority follow in determining appropriate bargaining units are institutional, rather than individual. In evaluating both the initial creation of bargaining units and their amendment and clarification, the Authority is directed to make determinations that "will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of operations of the agency involved." 5 U.S.C. § 7112(a). The Authority also must ensure that the statutory exclusions for particular types of employees, such as managers, supervisors, and confidential employees, be respected. See 5 U.S.C. § 7112(b).
In contrast to the institutional interests that predominate in unit amendment and clarification petitions, the Statute provides various mechanisms to protect the individual interests and rights of the participants in the labor relations program. The unfair labor practice provisions of the Statute provide individuals with the means to protect their rights under the Statute. An employee can protect representation rights by asserting a union's failure to meet its duty of fair representation in violation of section 7116(b). Moreover, even though a unit certification may not be altered in an unfair labor practice proceeding, the Authority may determine the status of employees in such proceedings. See, e.g., Department of the Air Force, Sacramento Air Logistics Command, McClellan Air Force Base, California, 38 FLRA 732, 734 (1990). In addition, individual employees' rights can be protected through grievance and arbitration procedures. See 5 U.S.C. § 7121.
In sum, where the basic question to be resolved in an Authority proceeding is whether a group of employees will or will not be represented by a union, the Statute provides for the direct involvement of the union and agency, and for employees to participate through petitions that must include evidence of the employees' collective support.
Here, the petitioner seeks to clarify the unit to exclude employees of the Fresno Center from the unit that is subject to the collective bargaining agreement between the Agency and the Union. Such a request does not, on its face, relate only to the interest or status of this individual petitioner. Rather, each of the other employees in the unit has an identical interest in the Petitioner's request to clarify the unit. That request would terminate all of the employees' rights to be represented by the Union.
Further, issues involved in making this determination, such as the effectiveness of labor relations and governmental efficiency, relate to the institutions involved, the union and the agency.(4) In such a situation, where the individual's interest is: (1) distinct from the institutional and statutory interests involved; (2) undifferentiated from the interest of other, equally interested employees who have not filed a petition; and (3) capable of being protected through other procedures available under the Statute, it is not appropriate for an individual to utilize this procedure(5)
This is particularly important in view of the potential administrative consequences attendant to permitting individuals to file such petitions. I note, in this regard, that there are approximately 1.1 million employees in exclusive units throughout the government.(6) As such, conferring standing to file such petitions on any individual bargaining unit member potentially could result in a significant number of petitions.(7) It is, therefore, reasonable to preclude such filings unless, by doing so, significant interests are likely to be unprotected. This is not the case here, however. As the above discussion demonstrates there are procedures available to protect individual employees' interests.
2. Petitioner has not established that the Statute requires that individuals be permitted to file unit clarification and amendment petitions.
The Petitioner argues that the Statute affirmatively grants individual employees the right to file a petition to clarify or amend a union's certification. He relies on sections 7111(b)(2) and 7103(a)(1) of the Statute. Section 7111(b) provides that:
If a petition is filed with the Authority . . . (b) by any person seeking clarification of, or an amendment to, a certification then in effect or a matter relating to representation[,] the Authority shall investigate the petition[.]
5 U.S.C. § 7111(b) (emphasis added.) Section 7103(a)(1) defines "person" under the Statute to include "an individual." According to the Petitioner, because an individual is included in the definition of person, he has a right to file a petition under this section. He thus asserts that the Authority's regulations, which do not accord him that right, are contrary to the Statute.
I do not agree with the Petitioner that Congress, by using the term person in section 7111(b)(2), indicated that it required the Authority to depart from the practice followed by the Assistant Secretary in implementing Executive Order 11491 that only unions and agencies may file such petitions. The Statute specifically provides that "[p]olicies, regulations, and procedures established under Executive Order 11491 . . . shall remain in full force and effect . . . unless superseded by specific provisions of this Chapter . . . ." 5 U.S.C. § 7135(b). The Authority's adoption of the practice at issue here follows this statutory mandate because the definition of person cited by the Petitioner does not specifically supersede the prior practice.(8)
Even if this matter was not controlled by section 7135(b), the definition of the term "person" cited by the Petitioner in no way "directly address[es] the precise question at issue[.]" Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984). In such a circumstance, the power of an administrative agency to "administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left . . . by Congress." Id. The Authority's regulations defining standing to file petitions constitute a "permissible construction" that fills such a "gap." Id.
The Petitioner's argument that individual employees must be permitted to file any petition under section 7111 ignores the full definition contained in the section he relies on, which provides that a "person" is "an individual, labor organization or an agency." 5 U.S.C. § 7103(a)(1) (emphasis added). This disjunctive listing indicates that all three types of "persons" are not necessarily encompassed each and every time the term "person" is used in the Statute.
A review of the various provisions in the Statute where the term "person" is used reveals that Congress plainly did not intend that every time the term was used, all three types of "persons" would necessarily be included. For example, section 7103(a)(2) defines an "employee" as an individual with certain characteristics, "but does not include [as an employee] . . . (v) any person who participates in a strike. . . ." This usage clearly confines "person" to the individual. Neither a labor organization nor an agency could logically be a "person" in the context of the section of the Statute defining who is or is not an employee. Also, an agency is incapable of participating in a strike.
Similarly, section 7111(b)(1)(A) provides that the Authority shall investigate a petition calling for a representation election filed by "any person" alleging a proper showing of interest among unit employees. However, as section 7116(a)(3) makes it an unfair labor practice for an agency to sponsor, control or otherwise assist any labor organization, the Statute itself makes it clear that an agency could not be included in the category of "person" referred to in section 7111(b)(1)(A). In addition, section 7119(c)(5)(B)(ii) provides that the Federal Service Impasses Panel may, among other things, administer oaths and take the testimony or deposition of "any person" under oath. However, only individuals are capable of giving testimony or making depositions.
The structure of section 7111(b) provides further support for our conclusion that the use of the term "person" in subsection (b)(2) does not dictate that individuals, unions, and agencies have standing to file every type of petition under that section. In particular, although section 7111(b) speaks to actions after a petition is filed, it does not provide that any "person" may file a petition seeking amendment of a certification or clarification of a unit. Rather, the section states only that "If a petition is filed with the Authority (1) by any person[,]" then the Authority shall investigate the matter. 5 U.S.C. § 7111(b)(2) (emphasis added). That is, by its terms, the provision reflects Congress' expectations as to Authority action after a petition -- presumably a proper petition -- has been filed. It does not speak to, and thus does not preclude the Authority's regulation of, requirements applicable to the filing of a petition itself.
In addition, it was "the clearly expressed intent of Congress to pattern the Authority upon the model of the NLRB." Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363, 367 (1995) (Port Hueneme), quoting Turgeon v. FLRA, 677 F.2d 937, 939-40 (D.C. Cir. 1982). The legislative history of the Statute makes clear that the structure, role and functions of the Authority and its General Counsel were closely patterned after the NLRB. Id. Thus, it is apparent that Congress, when it included specific provision for petitions to clarify or amend certification in the Statute, intended that the Authority adopt a procedure parallel to the process that the NLRB had adopted by regulation.
As the Supreme Court has explained, part of the authority that has been given to the Authority is "the power to give reasonable content to the statute's textual ambiguities." Department of the Treasury, I.R.S. v. FLRA, 494 U.S. 922, 933 (1990). The U.S. Court of Appeals for the Third Circuit has described how the Authority should exercise this discretion with respect to the application of the definitions found in section 7103. In Defense Criminal Investigative Service (DCIS), Department of Defense (DOD) v. FLRA, 855 F.2d 93 (3rd Cir. 1988), the court analyzed the Authority's interpretation of the word "agency" in the context of an unfair labor practice case. The court stated that:
[T]he fact that the term "agency" may be used in a different manner in one or more sections of the FLMRA [Federal Labor Management Relations Statute] does not effectively erase from the Act the specific definition of "agency" given by Congress in § 7103. Rather, in order to effectuate the intent of Congress, the FLMRA should be interpreted so that where the statutory definition is appropriate, it will be applied, and where inappropriate -- as arguably in § 7103(a)(12) -- it will not apply. Such interpretation is exactly the sort of task that the FLRA is meant to perform with respect to the FLMRA and has here accomplished.
Id. at 100.
In this case, it is not necessary to ignore a statutory definition because it is inappropriate. Rather, I find that the statutory definition in section 7103(a)(1) containing the disjunctive connector "or" should not be read as if it contained the connector "and." As such, the Petitioner has not established that the Statute requires a result at odds with the consistent practice of the Assistant Secretary, the Authority and the NLRB in processing amendment and clarification petitions.
The Authority's regulation limiting filings of petitions to amend or clarify units is based on its experience in dealing with representation matters, pursuant to its exclusive jurisdiction over such matters.(9) See Division of Military and Naval Affairs (New York National Guard), Latham, New York, 53 FLRA 111, 119-21 (1997). Based on the considerations set forth above, the Authority has long concluded that individuals in a bargaining unit should not be permitted to file petitions seeking amendments to, or clarifications of, a certification. I am not persuaded that this practice should be altered. Accordingly, I conclude that the Regional Director properly dismissed the petition in this case based on section 2422.2(c) of the Regulations.
Donald S. Wasserman, Member, concurring:
I concur that our regulation does not conflict with the terms of the Statute. While my analysis overlaps with that of the Chair in core areas, I differ on certain points of emphasis. The wording of the Statute, combined with the broad authority to implement the Statute through regulation, lead me to the conclusion that the limitation on standing to file the type of petition at issue here is lawful.
A. The Statute Grants the Authority Power To Devise Regulations As Necessary to Administer the Statute
1. The Authority May Regulate To Fill A Statutory "Gap"
Section 7134 of the Statute requires the Authority to "prescribe rules and regulations to carry out the provisions" of the Statute. In addition, section 7105(a)(2)(B) of the Statute provides that the Authority shall undertake its responsibilities, including its responsibility to "administer the provisions of section 7111," which relates to the grant of exclusive recognition, "in accordance with regulations prescribed by the Authority[.]" Accordingly, there is no question that the Authority is authorized to promulgate regulations necessary to resolve representation petitions, including the petition at issue in this case.
With regard to the content of the Authority's regulations, the power of an administrative agency to "administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left . . . by Congress." Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984) (Chevron) (citation omitted). Regulations issued to fill such a "gap" are enforceable if the agency promulgating the regulations has acted reasonably within the context of the program it administers. Id. at 844-45.
Consistent with the foregoing, the petition in this case was properly dismissed under section 2422.2(c) of the Authority's regulation, provided the Regulation reasonably fills a gap left by Congress in enacting the Statute.
2. The Statute Leaves A "Gap"
Section 7111(b)(2) provides that if a petition is filed "by any person seeking clarification of, or an amendment to, a certification then in effect or a matter relating to representation[,] the Authority shall investigate the petition[.]" (emphasis added). Congress defined "person" in section 7103(a)(1) to include "an individual, labor organization or an agency" (emphasis added). This alternative listing presents an ambiguity as to whether all three types of "persons" are necessarily encompassed each and every time the term "person" is used in the Statute. See, e.g., section 7103(a)(2)(B)(v); section 7111(b)(1)(A); and section 7119(c)(5)(B)(ii). This is the kind of legislative "gap" referred to in Chevron, 467 U.S. at 843-44.(1) As relevant here, the definition of "person" in the disjunctive, and the fact that Congress did not specify whether an individual can file a petition seeking clarification of a unit, presents an ambiguity as to whether Congress intended the term "person" as fewer than all three possible parties in various situations.
As my concurring colleague noted, a review of the various provisions in the Statute where the term "person" is used reveals contexts in which it is not logical to construe the term as encompassing individuals, unions, and agencies. Moreover, the Third Circuit has approved the Authority's exercise of discretion with respect to the application of the definitions found in section 7103. Defense Criminal Investigative Service (DCIS), Department of Defense (DOD) v. Federal Labor Relations Authority, 855 F.2d 93, 100 (3rd Cir. 1988)("the fact that the term "agency" may be used in a different manner in one or more sections of the FLMRA [Federal Labor Management Relations Statute] does not effectively erase from the Act the specific definition of "agency" given by Congress in § 7103").
In addition, the wording in section 7111(b) does not itself define the requirements applicable to filing a petition. In particular, although it speaks to actions after a petition is filed, it does not provide that any "person" may file a petition seeking amendment of a certification or clarification of a unit. That section states only that "If a petition is filed with the Authority (1) by any person[,]" then the Authority shall investigate the matter. 5 U.S.C. § 7111(b) (emphasis added). That is, by its terms, the provision reflects Congress' expectations as to Authority action after a petition -- presumably a proper petition -- has been filed. It does not speak to, and thus does not preclude the Authority's regulation of, requirements applicable to the filing of a petition itself. Thus, section 7111(b) reveals another "gap" that the Authority may address in its standing regulation.
My comparative analysis of the Statute and the National Labor Relations Act (NLRA) is another factor leading me to conclude that Congress left a "gap" for the Authority to fill in. It was "the clearly expressed intent of Congress to pattern the Authority upon the model of the NLRB [National Labor Relations Board]".(2) It is well-established that when there are comparable provisions under the Statute and the NLRA, the decisions of the NLRB and the courts interpreting the NLRA have a high degree of relevance to similar circumstances under the Statute. U.S. Geological Survey, Caribbean District Office, San Juan, Puerto Rico, 53 FLRA 1006, 1015 (1997). While the NLRA does not explicitly provide for petitions to amend certifications or clarify units, the NLRB provided for such petitions in its Rules and Regulations, and they were long-established at the time the Statute was enacted by the Civil Service Reform Act of 1978. Those regulations provide that such petitions can be filed only by a labor organization or an employer, the same restriction created by the Authority regulation at issue here. NLRB Rules and Regulations section 102.60(b).(3) The NLRB regulations do not provide for the filing of either type of petition by individuals.
In the Statute, Congress explicitly provided for amendment of certification or clarification of unit petitions, which the NLRB had created by regulation in the absence of explicit provision in its own enabling act.(4) Combining this fact with the analysis showing that throughout the Statute the term "person" is subject to various interpretations, I am further persuaded that Congress must not have intended "person" to refer each and every time to all parties included in the section 7103(a)(1) definition of "person."
B. The Authority's Regulation Reasonably Fills the Gap Left by Congress
In view of the ambiguity in the meaning of section 7111(b)(2) when considered in conjunction with section 7103(a)(1), the ultimate question in this case is whether the Authority's regulation designating who can file amendment or clarification petitions is a permissible construction of the Statute, based on a reasonable exercise of discretion.
A petition to amend a certification is aimed at modifying the wording of a certification to accommodate a nominal or technical change of an activity or exclusive representative. See Naval Aviation Depot, Naval Air Station, Alameda, California, 47 FLRA 242, 243 (1993). A petition to clarify a unit is aimed at clarifying whether a particular position is properly included within a certification, see American Federation of Government Employees, Local 3723 and U.S. Department of the Navy, Navy Exchange Service Center, 49 FLRA 1256, 1258 (1994), or whether an individual is included, see Federal Trade Commission, 35 FLRA 576, 583 (1990). Matters concerning the definition of the unit are of significant interest to the agency and the union, who are the parties to the certification. I join in Section 1 of Chair Segal's concurring opinion regarding the appropriateness of individuals not being permitted to file petitions for clarification or amendment. I agree with her explanation of how the various parties' interests are met by the Statute, including those of individuals'.
Finally, in determining the reasonableness of the Authority's discretion to decide who has standing under its enabling statute, I find instruction in the judicial concept of standing. Beyond the constitutional minimum of having a case or controversy, courts have devised "prudential" restraints on matters which they will hear. These prudential considerations limit a court from considering certain types of claims, even though it clearly has jurisdiction, because such claims are not an appropriate use of the judiciary.
As with the constitutional requirements, prudential principles are designed to confine judicial power to cases in which a decision will be meaningful. Simply because the Constitution gives courts power does not mean that it is either wise or necessary for them to exercise that power.
Koch, Administrative Law and Procedure 397 (2d ed. 1997). Accordingly, by analogy, the fact that the Statute appears to confer jurisdiction on "any person" to file certain petitions does not necessarily preclude the Authority from determining whether standing appropriately is granted to all categories of persons as defined in section 7103. As noted supra at 9, the Authority must reasonably be able to limit the categories of persons able to file petitions of the sort at issue here, so as to avoid an injudicious use of the Authority's processes.
I conclude that section 2422.2(c) of the Regulations is not inconsistent with the definition of "person" under section 7103(a)(1) of the Statute. Rather, the regulation merely specifies which persons have standing to file certain types of representation petitions, including the type of petition at issue here. Such a determination is a reasonable exercise of the Authority's discretion in an area in which it has particular expertise, i.e., representation matters. As a result, the Regional Director's decision was correct and the petition was properly dismissed.
Dissenting opinion of Member Cabaniss:
I respectfully dissent because I do not believe that section 7111(b)(2) of the Statute is ambiguous.
Section 7111(b)(2) of the Statute states that if a petition is filed with the Authority "by any person seeking clarification of, or an amendment to, a certification then in effect or a matter relating to representation[,] the Authority shall investigate the petition[.]" Section 7103(a)(1) of the Statute defines "person" as "an individual, labor organization, or agency[.]"
The first step in analyzing a statutory provision is determining "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron v. U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984) (Chevron) (footnote omitted). For an agency to "avoid a literal interpretation at Chevron step one, it must show either that, as a matter of historical fact, Congress did not mean what it appears to have said, or that, as a matter of logic and statutory structure, it almost surely could not have meant it." Engine Manufacturers Association v. U.S. Environmental Protection Agency, 88 F.3d 1075, 1089 (D.C. Cir. 1996) (footnote omitted). As the Supreme Court recently explained, in construing statutes "[w]e do not start from the premise that th[e] language is imprecise. Instead, we assume that in drafting th[e] legislation, Congress said what it meant." U.S. v. LaBonte, 117 S. Ct. 1673, 1677 (1997), quoted in Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA No. 38, slip op. at 8 note 10 (1998).
In my view, by providing that "any person" may file the petitions specified in section 7111(b)(2), Congress set forth its intent to permit any one of three entities--an individual, a labor organization, or an agency--to file those petitions. Nothing in section 7111(b)(2) or its legislative history suggests that Congress meant anything other than what it said in the plain wording of the provision. Moreover, I do not find that, as a matter of logic and statutory structure, Congress almost surely could not have meant to include individuals among the entities permitted to file the petitions referenced in section 7111(b)(2). Accordingly, under Chevron, that is the end of the matter.
My colleagues reference other provisions of the Statute in which the term "person" is used, and state that it is clear that, because of the context, Congress could not have intended to include all three types of "persons" in those sections.(1) I agree. However, unlike those sections, section 7111(b)(2) is not a section in which, because of the context, Congress could not have meant what it plainly said.
Moreover, I find my colleagues' reliance on the National Labor Relations Act and Executive Order 11491 inapposite. Neither of those enactments contains language comparable to that of section 7111(b)(2). Accordingly, I do not find that the practices under those frameworks serve to negate the clear language of section 7111(b)(2).
Consequently, in the absence of evidence that Congress could not have meant what it said in the clear language of section 7111(b)(2), I must find that a regulation permitting individuals, labor organizations, and agencies to file such petitions is the only regulation that would be consistent with the intent of Congress.(2)
If I believed that Congress had not meant what it said in section 7111(b)(2) and that the FLRA therefore had flexibility in determining through its regulations who could file petitions referenced in section 7111(b)(2), I would agree with my colleagues that 5 C.F.R. § 2422.2(c) constitutes a reasonable exercise of its regulatory authority. I have no doubt that the policy and administrative reasons discussed by my colleagues in support of the regulation establish its reasonableness. In particular, I acknowledge that the potential administrative consequences that might flow from allowing individuals to file petitions referenced in section 7111(b)(2) present significant concerns.
However, as I do not see an ambiguity in Congress' plain statement in section 7111(b)(2), I believe that Congress has expressed its intent and has not left it up to the FLRA to make such a policy determination. Therefore, I am constrained to find that 5 C.F.R. § 2422.2(c) is inconsistent with the plain meaning set forth by Congress in section 7111(b)(2). With respect to the instant application for review, I would find that the individual petitioner had a statutory right under section 7111(b)(2) to file his petition, and I would remand the petition to the Regional Director for appropriate action.
Authority's Footnotes Follow:
1. The separate, concurring opinions of Chair Segal and Member Wasserman follow, and Member Cabaniss' dissenting opinion is set forth at the end of the decision.
2. The Petitioner also filed a response to the Agency's opposition, which we have not considered because the Regulations do not provide for such a filing and review is not deemed appropriate under 5 C.F.R. § 2429.26.
3. Section 2422.2 provides:
§ 2422.2 Standing to file a petition.
A representation petition may be filed by: an individual; a labor organization; two or more labor organizations acting as a joint-petitioner; an individual acting on behalf of any employee(s); an agency or activity; or a combination of the above: Provided, however, that
(a) Only a labor organization has standing to file a petition [seeking an election to determine if employees in an appropriate unit wish to be represented by an exclusive representative] pursuant to section 2422.1(a)(1);
(b) Only an individual has standing to file a petition [seeking an election to determine if employees in a unit no longer wish to be represented by an exclusive representative] pursuant to section 2422.1(a)(2); and
(c) Only an agency or a labor organization may file a petition [seeking to clarify and/or amend a recognition of certification in effect and/or any other matter relating to representation] pursuant to section 2422.1(b) or (c).
4. The Judge in Wildberger held that section 7118(a)(1) of the Statute, and section 2421.2(a) of the Authority's Regulations, allow for any "person" to file a ULP charge, and the individual charging party in that case was a person as defined in section 7103(a)(1) of the Statute and applicable regulations. No timely exceptions were filed to the Judge's decision. Therefore, the findings, conclusion and recommendations of the Judge are without precedential significance. We note, moreover, that Wildberger dealt with unfair labor practice allegations, which involve different statutory and regulatory provisions from those under consideration here. In particular, the complaint alleged that the respondent in that case violated section 7116(a)(1) of the Statute by prohibiting the charging party from acting as the representative of a unit employee in her appeal to the Merit Systems Protection Board.
Concurring Opinion, Phyllis Segal Footnotes Follow:
1. Under the Authority's current regulations, any representation issue, including a request to clarify or amend a certificate, may be raised by the filing of a single petition. 5 C.F.R. § 2422.1 (1998). Prior to March 15, 1996, the Authority's regulations provided for separate petitions for thes0e two purposes. 5 C.F.R. §§ 2422.1(d), 2422.2(c).
2. Section 102.60(b) provides, in pertinent part:
(b) A petition for clarification of an existing bargaining unit or a petition for amendment of certification, in the absence of a question concerning representation, may be filed by a labor organization or by an employer. . . .
29 C.F.R § 102.60
3. Employee's do, in contrast, have an individual right to join or assist a union, or to refrain from these activities. 5 U.S.C. § 7102.
4. For example, the clarification petition is intended to clarify, consistent with the union and agency's intent as well as statutory definitions, the unit inclusions or exclusions after the basic question of representation has been resolved. U.S. Department of the Treasury, United States Mint, 32 FLRA 508, 510 (1988) (emphasis added).
5. It should be noted that employees have a significant role in the certification of a bargaining unit at its inception. Under 5 U.S.C. § 7111(d), employees vote on whether they wish to be represented by a labor organization. Thereafter, employees are permitted to vote on their unit preference when simultaneously voting on a bargaining unit representative in cases where, for example, a change in the employer's organization has occurred. See Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Ohio, 53 FLRA 1114, 1134-35 (1998).
6. United States Office of Personnel Management, Union Recognition in the Federal Government 23, Table H (1997).
7. Indeed, taken to its logical extension, petitioner's argument would permit any individual, even one with no connection whatsoever to the bargaining unit, to file a petition.
8. The legislative history of this provision does not provide any guidance concerning the particular interpretive issue raised in this case. The Committee Report accompanying the language that was incorporated into the Statute simply repeats the requirements set out in the law. H.Rep. 95-1403 (95th Cong. 2d Sess.) 44; Legislative History of the Federal Service Labor Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Comm. Print 96-7, 690.
9. Certainly an understanding of representation matters depends on more than ordinary knowledge. See Chevron, 467 U.S. at 844 (citations omitted).
Concurring Opinion, Donald Wasserman Footnotes Follow:
1. See Huls America Inc. v. Browner, 83 F.3d 445, 450 (D.C. Cir. 1996), where the court found that the use of the disjunctive "or" in listing items an agency shall take into account "does not unambiguously answer the question of whether" the agency can base its decision on one of the items. "The fact that Congress used the disjunctive connective 'or' suggests strongly that it did not intend to require the [agency] to consider all of the factors when making . . . decisions." 83 F.3d at 450.
The court found the agency's interpretation permissible because the use of the disjunctive "or" left the statute open to the interpretation that it authorizes the agency to act based on any, some or all of the factors listed. The court reached this conclusion notwithstanding the statute's instruction that the agency "shall take into account" the listed items.
2. Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363, 367 (1995) (Port Hueneme), quoting Turgeon v. FLRA, 677 F.2d 937, 939-40 (D.C. Cir. 1982). The court stated further that the legislative history of the Statute makes clear that the structure, role and functions of the Authority and its General Counsel were closely patterned after the NLRB.
3. Section 102.60(b) of the National Labor Relations Board's Rules and Regulations provides, in pertinent part:
(b) A petition for clarification of an existing bargaining unit or a petition for amendment of certification, in the absence of a question concerning representation, may be filed by a labor organization or by an employer. . . .
29 C.F.R. 102.60(b).
4. The Board derived its authority to amend and clarify certifications from the express authority to issue certifications under section 9(c)(1) of the NLRA. NLRB General Counsel, Outline of Law and Procedure in Representation Cases 153-55 (1997).
Dissenting Opinion Footnotes Follow:
1. The referenced provisions are sections 7103(a)(2)(B)(v), 7111(b)(1)(A), and 7119(c)(5)(B)(ii).
2. While, in my view, this is the only result permitted by the plain language of section 7111(b)(2), I believe that Congress left it to the FLRA to determine how to process petitions filed under section 7111(b)(2), consistent with the appropriate exercise of the FLRA's regulatory authority. See 5 U.S.C. §§ 7105 and 7134.