54:1474(126)RP - - National Mediation Board and AFGE - - 1998 FLRAdec RP - - v54 p1474

[ v54 p1474 ]
The decision of the Authority follows:

54 FLRA No. 126












November 3, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)

I. Statement of the Case

This case is before the Authority on the Union's application for review of the Regional Director's (RD's) decision, which dismissed the Union's petition for a representation election on the ground that the proposed unit contains employees who are precluded from representation by the Union pursuant to section 7112(c)(2) of the Federal Service Labor-Management Relations Statute (Statute).(2) The Agency filed an opposition to the Union's application.

For the reasons set forth below, we grant review on the grounds that: (1) there is an absence of Authority precedent addressing the issues presented in this case; and (2) there is a genuine issue over whether the RD committed harmful procedural error. 5 C.F.R. §§ 2422.31(c)(1) and 2422.31 (c)(3)(ii). We conclude that the RD correctly found that the Union may not represent employees who administer the Railway Labor Act (RLA). We also conclude that the RD committed harmful procedural error and remand the petition for further processing consistent with this decision.

II. Background and RD's Decision

The Union filed a representation petition seeking an election to represent all professional and non-professional employees of the Agency. Mediators, whose responsibilities include administering the RLA, are included in the unit of employees the Union's application sought to represent.

The RD found that, because the Union is affiliated with the AFL-CIO and because other affiliates of the AFL-CIO represent employees covered by the RLA, the Union is precluded by section 7112(c)(2) of the Statute from representing employees who administer the RLA. The RD relied on a 1978 decision by the Assistant Secretary of Labor, which concluded that section 3(d) of Executive Order 11491, as amended,(3) prohibited the Union from representing Agency employees who administer the RLA.(4) Decision at 2 (citing National Mediation Board, Washington, D.C., Case No. 22-09118 (RO) (1978) (National Mediation Board)).

According to the RD, the Union asserted that, "at the very least, a unit of the non-professional . . . employees is appropriate . . . ." Id. at 3. However, the RD did not determine whether such a unit was appropriate. The RD stated, in this regard, that the Union had not indicated that "it intended to amend its existing petition which calls for a single unit of both professional and non-professional . . . employees." Id. at n.3.

III. Positions of the Parties

A. Union

The Union asserts that the RD's decision warrants review under section 2422.31(c)(1) of the Authority's Regulations because there is an absence of Authority precedent on the issue whether a union that is a member of the AFL-CIO is prohibited from representing employees who administer a labor relations statute where employees covered by that statute are represented by another AFL-CIO affiliate. On the merits of this issue, the Union contends that section 7112(c)(2) does not apply to the AFL-CIO because the AFL-CIO represents unions, rather than employees.

In the alternative, the Union asserts that the RD's decision warrants review under section 2422.31(3)(ii) and (iii) of the Authority's Regulations because the RD's refusal to hold a hearing to determine whether non-mediator employees administer the RLA, and whether employees of the Agency who do not administer the RLA constitute an appropriate bargaining unit, resulted in both prejudicial procedural error and prejudicial error concerning substantial factual matters. The Union also maintains, in this regard, that the RD incorrectly identified mediators as professionals, and that his decision "illegally shears representational rights away from the non-mediator employees of the [Agency], who are the majority." Application for Review at 4.

B. Agency

The Agency maintains that there is not an absence of precedent concerning the issues raised before the RD. According to the Agency, National Mediation Board is not only controlling precedent but also "is res judicata in the instant case." Opposition at 6. The Agency also maintains that the Union "has not presented any claim or cogent argument that the [RD] committed prejudicial procedural error." Id. at 6.

IV. Analysis and Conclusions

A. The RD's Decision Raises an Issue on Which There is an Absence of Precedent

The central issue presented in this case is whether the Union is prohibited by section 7112(c)(2) of the Statute from representing employees of the Agency who administer the RLA on the ground that the Union is affiliated with the AFL-CIO, which has among its affiliates other unions that represent employees who are covered by the RLA. The only case in which the Authority was presented with this issue was U.S. Department of Labor, Pension and Welfare Benefits Administration and National Union of Pension Investigators and Auditors Independent, 38 FLRA 65 (1990) (PWBA II); Order Granting Review, 34 FLRA 138 (1990) (PWBA I). In that case, the Authority granted review concerning two issues, including "the applicability of section 7112(c)(1) and (2) to National Council/AFGE in light of that labor organization's own activities and its affiliation with the AFL-CIO." PWBA I, 34 FLRA at 142. However, the petition for review was resolved on the basis of a different issue, and the question raised regarding section 7112(c) was not addressed. See PWBA II, 38 FLRA 65.

As PWBA is the only case in which the Authority was presented with the issue that is now before us, and as the Authority did not address it in the decision in that case, there is an absence of Authority precedent interpreting section 7112(c)(2) of the Statute. Accordingly, review of the RD's decision is warranted under section 2422.31(c)(1) of our regulations.

We reject the Agency's argument that National Mediation Board constitutes res judicata on the proper interpretation and application of section 7112(c) in this case. For reasons discussed below, we conclude that neither of the two theories of res judicata -- claim preclusion and issue preclusion -- applies in this case.

The doctrine of claim preclusion bars a subsequent suit between the same parties on the same cause of action where there has been a prior final judgment on the merits of that cause of action. See Stein, Mitchell and Mezines, Administrative Law, 40.01 at 40-2. Here, the case before us and National Mediation Board do not involve the same cause of action because a claim under the Executive Order is not the same as a claim under the Statute. Further, the subject matter of the two cases is not identical because the Union's 1978 petition sought a different bargaining unit than the petition in this case. See United States Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas and American Federation of Government Employees, AFL-CIO, National Border Patrol Council, 41 FLRA 259, 263 (1991).

The doctrine of issue preclusion "prevents a second litigation of the same issues of fact or law even in connection with a different claim or cause of action." U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, 35 FLRA 978, 982 (1990) (Scott Air Force Base). This doctrine does not apply, however, where there is a question of whether the underlying legal doctrines at issue remain valid. See Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599-600 (1948) (Sunnen); Western Oil and Gas v. U.S. Environmental Protection Agency, 633 F.2d 803 (9th Cir. 1980). Here, the Authority's grant of review in PWBA I on the same issue presented by the Union's application in this case raised a question concerning the validity of National Mediation Board. In addition, the doctrine of issue preclusion is not intended to prevent an adjudicatory body, such as the Authority, from reexamining applicable legal principles where necessary. See Sunnen, 333 U.S. at 599.

Based on the foregoing, we conclude that examination of the issue presented in this case is not foreclosed by res judicata, and we grant the application for review under section 2422.31(c)(1) of the Statute.

B. The Union Is Indirectly Affiliated With Labor Organizations that Represent Employees To Whom the RLA Applies

As relevant here, section 7112(c) of the Statute prohibits employees who "administer a labor relations statute" from being represented by a labor organization that is "directly or indirectly" affiliated with a labor organization that represents individuals to whom the labor relations statute applies. See supra, n.1. There is no dispute that mediators in the proposed unit "administer" the RLA. There is also no dispute that the Union is an affiliate of the AFL-CIO and that there are unions affiliated with the AFL-CIO who "represent other individuals" under the RLA. The question presented is whether the Union is "directly or indirectly" affiliated with these other unions by virtue of their separate affiliation with the AFL-CIO.

There is no definition of the phrase "affiliated directly or indirectly" in the Statute and, as noted supra, the Authority has not previously construed this phrase. On its face, the phrase appears to include all affiliation relationships between unions, since there is no apparent category of affiliation that is not subsumed within the universe of "direct" or "indirect." Consistent with this construction, the phrase "affiliated directly or indirectly" includes the relationship between unions that are linked to each other through their separate affiliation with the AFL-CIO. This is the meaning that the Assistant Secretary adopted in construing virtually identical language under Executive Order 11491 in National Mediation Board.

Construing the phrase "affiliated directly or indirectly" as including the relationship between two affiliates of the AFL-CIO is consistent with the legislative history of section 7112(c), which indicates that the purpose of the provision is to "help prevent conflicts of interest and appearances of conflict of interest." 124 Cong. Rec. H9634 (1978), reprinted in Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 at 925 (Committee Print 96-7)(Legislative History).(5) The goal of preventing even "appearances" of conflict of interest is furthered by construing the phrase as including the relationship between two affiliates of the AFL-CIO.(6) In addition, the legislative history provides no indication that Congress intended to narrow the interpretation of the phrase that had been applied by the Assistant Secretary.

Construing the phrase "affiliated directly or indirectly" as including the relationship between two affiliates of the AFL-CIO is also supported by the construction of a similar phrase in section 9(b)(3) of the National Labor Relations Act (NLRA). See 29 U.S.C. § 159(b)(3). In this regard, "[w]here there are comparable provisions under the Statute and the NLRA [National Labor Relations Act], decisions of the National Labor Relations Board (NLRB) and the courts interpreting the NLRA have a 'high degree of relevance' to similar circumstances under the Statute." U.S. Geological Survey and Caribbean District Office, San Juan, Puerto Rico, 50 FLRA 548, 550 (1995), quoting U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office, Gallup New Mexico, 45 FLRA 646, 652 (1992).

Section 9(b)(3) of the NLRA prohibits the representation of "guards" by a labor organization that "admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards." 29 U.S.C. § 159(b)(3) (emphasis added). This provision was enacted to "assure employers a core of faithful employees that would not be subject to a possible conflict of loyalties during a dispute. . . ." NLRB v. Brinks, Inc. of Florida, 843 F.2d 448, 451 (11th Cir. 1988). See Brinks, Inc, 274 NLRB 970, 971 (1985) (overlapping officers create indirect affiliation under section 9(b)(3) even if no "formal affiliation" of unions). In applying section 9(b)(3), the NLRB has reasoned that a union's affiliation with the AFL creates a disqualifying relationship under this section:

It is inescapable . . . that the Petitioner, because of its affiliation with the AFL, is "indirectly" affiliated not only with other AFL federal labor unions but also with the national and international labor organizations constituting the AFL that admit employees other than guards to membership.

Schenley Distilleries, Inc., Old Quaker Division, 77 NLRB 468, 469-70 (1948).

Concluding that the phrase "affiliated directly or indirectly" includes two affiliates of the AFL-CIO is thus consistent with the reasoning of the NLRB construing similar language with a similar purpose. Although two unions who are both affiliates of the AFL-CIO may not be in a "formal affiliation" with each other, see Brinks, supra, the two organizations may nevertheless have a relationship that constitutes "indirect affiliation," within the meaning of section 7112(c) of the Statute, as they do under section 9(b)(3) of the NLRA.

The Union argues that its relationship to the AFL-CIO cannot fall within section 7112(c)(2) because that organization does not, itself, represent individuals. However, whether the AFL-CIO represents employees does not determine whether the Union is disqualified under section 7112(c). It is the representation of employees by other union affiliates of the AFL-CIO that is at issue. The other union affiliates represent employees to whom the RLA applies, and the Union's relationship with these other unions constitutes "indirect affiliation."

Based on the foregoing, we conclude that the relationship between the Union and other union affiliates of the AFL-CIO that represent employees covered by the RLA falls within the phrase "indirect affiliation" under section 7112(c)(2) of the Statute. Because the Union is indirectly affiliated with other unions that represent employees covered by the RLA, it may not represent employees who administer the RLA.

C. The RD Committed a Prejudicial Procedural Error

According to the RD, the Union argued in the alternative that, even if a bargaining unit of all petitioned-for employees is not appropriate, a "unit of the non-professional NMB employees is appropriate . . . ." Decision at 3. The RD did not rule on this issue, noting that the Union had not indicated that "it intends to amend its existing petition." Id. at 3 n.3. However, contrary to the RD's statement, the Union did not argue below that a unit of non-professional employees would be appropriate. The Union argued that "a unit of just the non-mediator bargaining unit employees would constitute an appropriate unit for labor relations purposes, and dismissal of the [Union's] petition would unlawfully deny representation to this group . . . ." Union Response to Order to Show Cause at 3 (emphasis added).

The distinction between the Union's actual request and the RD's characterization of it is critical. Properly construed, the Union was merely requesting that the RD certify as appropriate, with necessary statutory exclusions, the same unit for which it filed the petition.(7) RDs and the Authority routinely evaluate the duties of particular positions to determine whether they fall within particular statutory exclusions. See e.g., U.S. Army District, Recruiting Command, Philadelphia, 12 FLRA 409 (1983) (personnel employees); United States Department of the Navy, U.S. Naval Station, Panama, 7 FLRA 489 (1981) (supervisors, personnel employees, management officials, and security employees). Nothing in case law or regulation requires a formal request to amend the petition in order to trigger such evaluation. In the face of the Union's explicit request that the RD evaluate the statutory exclusion of particular employees and the routine practice of doing so, the RD's refusal to do so constitutes harmful procedural error.

Based on the foregoing, we find that the RD committed prejudicial procedural error. Accordingly, we remand the case to the RD to exclude from the petitioned-for unit those employees who fall within the section 7112(c) exclusion, and make whatever findings are necessary with respect to the adequacy of the showing of interest, the appropriateness of the unit, and other relevant issues.

V. Order

The petition is granted and the matter is remanded to the RD for further processing consistent with this decision.

Concurring opinion of Member Wasserman:

I write separately because I think that Congress' use of the word "affiliation" represents an imprecise use of a term of art used by labor unions. As it is commonly understood among unions, "affiliation" between unions comes about by virtue of a written agreement or constitutional provision. Congress appears to use the term in a broader sense, with legislative history suggesting that the word was designed to prohibit unions with direct or indirect connections or association with one another from representing administrators of labor laws, so as to avoid the appearance of conflict of interest. I think that the application of the predecessor language to section 7112(c) in the Executive Order by the Assistant Secretary of Labor reflects the policy that Congress intended to carry forward with the passage of the Statute.

The AFL-CIO is a trade union center -- a loose confederation of affiliated international and national unions. The AFL-CIO represents the political, legislative and social aspirations of its affiliated unions, but certainly does not represent employees. Certifications are generally held by local unions or councils of local unions. These locals and councils do not pay per capita tax to the AFL-CIO, and are not directly affiliated with the AFL-CIO. A good case can be made that they are indirectly affiliated with the AFL-CIO through their parent national unions, which do pay per capita tax on their behalf. I do not think that these locals and councils are affiliated with one another -- in the traditional labor union sense -- by virtue of their indirect affiliation with the AFL-CIO through their national unions. In fact, I am sure that these RLA-covered affiliates of the AFL-CIO would be surprised by a declaration of affiliation with one another, especially considering the organizing campaigns they sometimes wage against one another.

The NLRB case that interprets section 9(b)(3) of the NLRA involved a federal labor union that was directly chartered by the AFL-CIO. Thus, that union was directly affiliated with the AFL-CIO, making its connection with other affiliated unions a step closer. The Board's interpretation of the statutory language may well have been influenced by the direct connection of the petitioner to the trade union center.

I join in today's decision because of the clear intent of Congress. In determining that affiliates of the AFL-CIO are "indirectly affiliated" with each other, I do so only as a matter of statutory construction. The analysis and ruling in this case is applicable only to the phraseology of the section 7112(c), in the context of representation cases arising under its terms.


1. Member Wasserman's concurring opinion is set forth at the end of this decision.

2. Section 7112(c) provides that:

(c) Any employee who is engaged in administering any provision of law relating to labor-management relations may not be represented by a labor organization--

(1) which represents other individuals to whom such provision applies; or

(2) which is affiliated directl