New Mexico Army and, Air National Guard (Activity) and National Federation of Federal Employees, Independent, Local 1636 (Labor Organization/Petitioner/Local 1636) and Laborers' International Union of North America, AFL-CIO (Labor Organization) and National Federation of Federal Employees, Independent, National Office (Labor Organization)

[ v56 p145 ]

56 FLRA No. 18

NEW MEXICO ARMY AND
AIR NATIONAL GUARD
(Activity)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES. INDEPENDENT, LOCAL 1636
(Labor Organization/Petitioner/Local 1636)

and

LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO
(Labor Organization)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, INDEPENDENT
NATIONAL OFFICE
(Labor Organization)

DA-RP-70031

_____

DECISION

March 16, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      The underlying petition in this case sought to amend certification from the National Federation of Federal Employees (NFFE) to the Laborers' International Union of North America (LIUNA). The Regional Director's (RD's) decision in Case No. DA-RP-70031 granted Local 1636's (the Local's) petition to amend certification.

      This case is before the Authority on NFFE's application for review of the RD's decision under section 2422.31(c) of the Authority's Regulations. LIUNA filed an opposition to NFFE's application for review.

      The Authority originally granted in part and denied in part the application for review filed by NFFE. The application for review was granted on the following issues:

To what extent, if any, was NFFE entitled to notice that a Montrose  [n2]  vote would be conducted in this case? If it was entitled to any such notice, did it receive such notice?
What is the effect of a trusteeship upon a petition to amend certification where the trusteeship is imposed after a Montrose vote occurs and after a petition to amend certification has been filed?

Both NFFE and LIUNA filed briefs in response to the order granting the application for review.

      For the reasons that follow, we find that NFFE was not entitled, under the Montrose doctrine, to notice that a vote to change affiliation would be conducted. We also find that a trusteeship imposed after a petition to amend certification has been filed has no effect on the petition. Accordingly, we affirm the RD's Decision and Order.

II.     Background and RD's Decision

A.     Background

      The Local is the exclusive representative of all general schedule and wage grade Activity employees throughout New Mexico. The President of the Local received a petition from bargaining unit members requesting that the Local hold a special election to vote on changing its affiliation from NFFE to LIUNA. The Local hired the American Arbitration Association (AAA) to run a mail ballot election.

      The Local President sent a letter to all bargaining unit members, informing them: (1) that he had received a request to hold an election to change affiliation from NFFE to LIUNA; (2) that the Local would hold such an election; (3) that the Local was mailing this letter to each member's last known home address; (4) the reasons for changing affiliation, as stated in the petition requesting a vote; (5) the representation choices that would be voted upon; (6) what affiliation meant; (7) that ballots should arrive shortly; and (8) that bargaining unit members could call the Local's headquarters collect to ask questions about the election. [ v56 p146 ]

      AAA mailed 122 ballots with self-addressed, stamped envelopes marked "Secret Ballot" to all dues paying members of the bargaining unit, with a return deadline. The voting instructions contained a phone number to call if members had questions. The ballot provided two choices:

YES, I approve the disaffiliation of Local 1636 with the National Federation of Federal Employees (NFFE), and affiliation with the Laborers' International Union of North America (LIUNA).
NO, I disapprove of the disaffiliation with the National Federation of Federal Employees (NFFE).

RD's Decision at 3.

      During a 9-day period, the Local President traveled throughout New Mexico to those locations where approximately 90 percent of the Local's membership was located. During that time, NFFE and LIUNA sent information to the Local's members. [n3] 

      AAA counted all ballots received by the deadline. Of the 45 envelopes received, 1 was rejected for lack of identification. Of the 44 ballots counted, 40 favored the affiliation change, and 4 did not favor the change in affiliation.

      Thereafter, the Local filed a petition to amend certification; the petition identified the Local as an affiliate of LIUNA and of NFFE. A few days later, the Local filed an amended petition that deleted the statement identifying the Local as affiliated with LIUNA. Subsequently, the Local filed a second amended petition (hereinafter, the petition) that also did not state that the Local was affiliated with LIUNA.

      After the petition was filed, NFFE notified the Local that it had imposed a trusteeship upon it effective immediately. That same day, NFFE notified the Local President that he was no longer an officer. In response, the Local President wrote:

As you know[, . . .] Local 1636 dues paying members voted 40 Yes, 4 No, 1 Challenged to disaffiliate with NFFE. I will pay dues through [the voting deadline date]. I do not recognize the Trusteeship as we are no longer affiliated.

Id. at 4.

B.     RD's Decision

      The RD found that the Local President had standing to file the petition because he was President of the Local, the certified exclusive bargaining representative of the employees, and acting for them. The RD found that the membership had directed the Local President to file a petition reflecting their decision to change affiliation from NFFE to LIUNA. Further, the RD found that, although it was irrelevant whether the Local President was paying dues when he filed the petition, there was no evidence to show that he actually stopped paying dues, either to the Local or to NFFE. [n4]  The RD also noted that as a "newly affiliated" labor organization, the Local had standing to file a petition to amend certification. Id. at 6 n.1.

      Next, the RD found that the election satisfied the four procedural criteria set forth in Montrose. The RD found that generally a special meeting must be held to discuss the affiliation vote, and that the meeting must be convenient to the entire membership so that all members have the opportunity to ask questions. However, the RD found that Authority precedent allows for the omission of the special meeting when geographical distance between bargaining unit members makes it impractical to hold such a meeting. In this case, the RD found that the geographical distance between members had precluded a membership meeting. Finally, the RD found that the secrecy of the ballots was maintained at all times. Thus, the RD found that the Local had satisfied the four procedural criteria set forth in Montrose.

      The RD also found that there was no question concerning continuity of representation because the Local's officers, Constitution, autonomy, and day-to-day operations were unchanged. Further, the RD found that the collective bargaining agreement was unchanged and that the Activity recognized LIUNA.

      Finally, the RD found that the trusteeship had no bearing on the certification petition because NFFE imposed it after the Local had filed the petition to amend certification.

      In conclusion, the RD found that: (1) the President of the Local had standing to file the certification petition; [ v56 p147 ] (2) the petition was filed on behalf of the exclusive bargaining representative; (3) the vote fulfilled the four procedural criteria set forth in Montrose; and (4) a trusteeship imposed by NFFE on the Local after the election to change affiliation from NFFE to LIUNA was held and petition to amend certification was filed did not affect the petition. Accordingly, the RD ordered that the Local's certification be amended to show its affiliation with LIUNA.

III.     Positions of the Parties

A.     NFFE  [n5] 

      NFFE contends that, pursuant to its National Constitution, the Local was required to inform NFFE that a vote to change affiliation was scheduled. NFFE argues that the Local must conduct its affairs pursuant to all laws, rules, regulations, and NFFE's Constitution. NFFE further asserts that it should have been aware of the proceedings at all stages in this case, as were the parties in Montrose.

      NFFE also argues that Montrose "is wrong and must be reviewed, changed, or abolished in [its] entirety." NFFE's Brief at 7. NFFE questions the applicability of the four procedural criteria set forth in Montrose where the change in affiliation is not based on an agreement between two national labor organizations acting in each other's best interests.

      In addition, NFFE argues that it "will not relinquish its right under the law to impose trusteeships on its subordinate locals pursuant to [5 U.S.C. § 7120, 29 C.F.R. §§ 458.26-.28], and the NFFE National Constitution." Id. at 5. NFFE contends that from the date a trusteeship is imposed, the national office is empowered to conduct local affairs.

      Finally, NFFE argues that the oath of office administered to NFFE officers requires the officers to remain loyal to NFFE and work in its best interest. NFFE argues that "[f]or the Authority to continue allowing NFFE Local Officers to violate their Oath of Office provides the inference [that] this type of behavior [coordinating disaffiliation] is acceptable and will be condoned." Id. at 6. Further, NFFE notes that allowing its officers to use the procedural criteria established in Montrose to act in concert with other labor organizations "renders [NFFE's] Constitution [and] Oath of Office meaningless and inconsequential." Id.

B.     LIUNA  [n6] 

      LIUNA argues that the four procedural criteria set forth in Montrose were not developed to provide notice to related organizations, i.e., a national union and its local affiliates, regarding a scheduled disaffiliation vote. LIUNA contends that any such notice should be effectuated through procedures established in NFFE's Constitution:

NFFE [] is entitled to [whatever] notice the members and the exclusive representative decide to give it. The Authority is not an actor until the Amendment of Certification is filed and at that point the Authority has to make a determination as to who the interested parties are and the criteria for participation and the status of the participants.

LIUNA's Brief at 6.

      LIUNA contends that the RD did not commit a prejudicial error by not notifying NFFE of the Local's petition to amend certification, and that "[o]ne suspects that [NFFE wanted] to be notified of the Amendment Petition as soon as possible so that they [could] place the Local Union in trusteeship and so [NFFE could] raise questions about the filing to delay the deliberations of the Regional Director." Id. at 3.

      LIUNA argues that the Authority should "take no notice" of a trusteeship unless the trusteeship's validity is a threshold issue to be resolved prior to the application of the four procedural criteria set forth in Montrose. Id. at 6. LIUNA relies on the General Counsel's Guidelines for the proposition that only two issues--continuity of representation and the safeguarding of democratic procedures--are examined by the Authority if "the [ v56 p148 ] amendment of certification is filed prior to the imposition of trusteeship."  [n7]  Id.

      LIUNA further argues that if a trusteeship is imposed prior to the filing of a petition to amend certification, then the Authority should investigate why the trusteeship was imposed. If the only reason offered for imposing a trusteeship is to block disaffiliation, LIUNA argues, then the petition should not be delayed, as courts have repeatedly determined [n8]  that disaffiliation is not a proper purpose for the imposition of a trusteeship, pursuant to 29 U.S.C. § 462. [n9] 

IV.     Analysis and Conclusions

A.     NFFE Was Not Entitled to Notice that a Vote to Change Affiliation Would be Conducted under Montrose; and the Authority Does Not Enforce NFFE's Constitution

      NFFE argues that it was entitled to notice that a vote to change affiliation was scheduled, in accordance with its Constitution and Montrose. For the following reasons, we find that NFFE was not entitled to notice that a vote to change affiliation was scheduled. We also find that we lack jurisdiction to enforce NFFE's Constitution.

1.     Procedural Criteria Established in Montrose Do Not Require Notice to NFFE

      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. Under Montrose, to ensure that an amendment of certification conforms to the desires of a union's membership, four procedural criteria must 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. The Authority has determined that where geographic dispersion precludes a special meeting of all of the members of the bargaining unit, a mail ballot may be substituted. See U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 34 FLRA 428, 444-45 (1990).

      The Authority has applied the procedural criteria established under Montrose in other cases where there was no agreement on change in affiliation between two national labor organizations. See U.S. Department of Defense, National Guard Bureau, New York National Guard, Division of Military and Naval Affairs, Latham, New York and National Federation of Civilian Technicians, New York State Council and Association of Civilian Technicians, Inc., 46 FLRA 1468, 1469 (1993); U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois and National Association of Government Employees, Local R7-72 and National Federation of Federal Employees, 46 FLRA 76, 79, 83-84 (1992); U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico and National Council of Bureau of Indian Affairs Educators, 33 FLRA 482, 487, 492 (1988); cf. Union of Federal [ v56 p149 ] Employees and National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Corps of Engineers, St. Louis District, St. Louis, Missouri, 41 FLRA 562, 583 (1991) (applying the four procedural criteria set forth in Montrose where a local union sought to disaffiliate from a national labor organization and not affiliate with another national labor organization, but maintain independent status). Apart from its assertion that the Authority "should review whether the antiquated changing of affiliation" procedural criteria established under Montrose apply in cases such as this one, involving "adversarial entities" (NFFE's brief at 7), NFFE provides no arguments why application of the procedural criteria established under Montrose is wrong. Therefore, we find that a modification to Montrose to require notification to a national labor organization of a disaffiliation vote is not warranted at this time.

2.     The Assistant Secretary of Labor Is the Appropriate Authority for Enforcement of NFFE's Constitution

      NFFE contends that its Constitution requires that local officers provide NFFE with notice that a vote to change affiliation is scheduled, and that by failing to do so, they have violated their Oaths of Office. See NFFE's Brief at 6. [n10]  In essence, NFFE requests that the Authority enforce NFFE's Constitution to require that local officers provide advance notice to the incumbent labor organization headquarters whenever employees plan to conduct a vote to change affiliation.

      The Authority has specifically recognized that the Assistant Secretary of Labor has "exclusive jurisdiction over Standards of Conduct" regarding issues that do not fall under the purview of the Federal Service Labor-Management Relations Statute (the Statute). See American Federation of Government Employees, Local 2419, 53 FLRA 835, 841 (1997) (citing National Association of Government Employees, Local R5-66, 17 FLRA 796, 813 (1985). That is, even assuming that a breach of NFFE's Constitution occurred, we are empowered to act regarding such a violation only if it also constitutes a violation of the Statute. See id., 17 FLRA at 814. NFFE's claim raises a Standards of Conduct issue,  [n11]  and raises no statutory claim. Accordingly, we conclude that the Authority has no jurisdiction to enforce NFFE's Constitutional claim in this case.

B.     A Trusteeship Imposed After a Petition to Amend Certification has been Filed has no Effect on the Petition

      In U.S. Environmental Protection Agency, Washington, D.C. and National Federation of Federal Employees, Local 2050 and Environmental Employees Collectively Organized, 52 FLRA 772 (1996) (EPA), the Authority addressed a trusteeship that had been imposed before the membership voted to change affiliation. The Authority stated that, in certain circumstances, an RD must presume the validity of such a trusteeship and that an RD should place a petition seeking amendment of certification in abeyance pending a decision on the validity of the trusteeship by the Assistant Secretary of Labor, if the RD is not satisfied as to the trusteeship's validity. See id. at 781-82.

      The RD here found that the trusteeship was irrelevant in determining whether the petition should be granted, because NFFE imposed it after the Local filed the certification petition. NFFE offers no argument to the contrary. [n12]  Therefore, we find that a trusteeship imposed after a petition to amend affiliation has been filed has no effect on the petition.

V.     Decision

      The Regional Director's Decision and Order is affirmed.


File 1: Authority's Decision in 56 FLRA No. 18
File 2: Opinion of Member Segal
File 3: Opinion of Member Cabaniss
File 4: Opinion of Chairman Wasserman


Footnote # 1 for 56 FLRA No. 18 - Authority's Decision

   The separate, concurring opinions of Members Segal and Cabaniss follow, and Chairman Wasserman's dissenting opinion is set forth at the end of the decision.


Footnote # 2 for 56 FLRA No. 18 - Authority's Decision

   See Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974) (Montrose). See also Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987) (Florida NG), in which the Authority adopted the A/SLMR's procedural criteria to change affiliation established in Montrose.


Footnote # 3 for 56 FLRA No. 18 - Authority's Decision

   The record contains no information as to the nature of the information supplied by the unions. See id. at 4. As the content of the information provided to the members has not been put at issue by any party, we do not address it further. We note, however, that it may call in to question the extent to which NFFE had actual, if not formal, notification of the scheduled disaffiliation vote.


Footnote # 4 for 56 FLRA No. 18 - Authority's Decision

   Pursuant to an agreement between the Local President and NFFE, the Activity is placing the dues of the Local's members into an escrow account.


Footnote # 5 for 56 FLRA No. 18 - Authority's Decision

   NFFE makes several arguments regarding the issues that the Authority declined to review in its January 7 Order. See NFFE's Brief at 3-4, 8. As such, we do not address those arguments.


Footnote # 6 for 56 FLRA No. 18 - Authority's Decision

   5 C.F.R. § 2422.31(c) sets forth the grounds for granting an application for review. LIUNA argues that section 2422.31(c) provides no authority for granting review of the issues set forth in the Authority's Order granting review in part. LIUNA further argues that consideration of those issues is tantamount to issuing an advisory opinion, which LIUNA asserts the Authority may not do, pursuant to 5 C.F.R. § 2429.10. LIUNA contends that the issues on which the Authority granted review had not been raised in the application for review. Contrary to LIUNA's contention, we find that: (a) section 2422.31(c) provides authority for granting review of the issues in this case; (b) consideration of the issues will not constitute issuance of an advisory opinion; and (c) NFFE's Application for Review expressly raised the issues for which review was granted. See NFFE's Application for Review at 5-7. Accordingly, we will decide those issues.


Footnote # 7 for 56 FLRA No. 18 - Authority's Decision

   LIUNA refers to the "General Counsel's Guidelines." We construe this as a reference to the Office of the General Counsel's Representation Proceedings Hearing Officer's Guide (Guide). Regarding an amendment to affiliation, the Guide states:

Two conditions must be met when determining whether the designation of the exclusive representative of a recognized or certified unit may be amended: (1) due process, in that union members must have an adequate opportunity to vote on the change[;] and (2) evidence of substantial continuity between the union existing before and after the affiliation.

Id. § 43 at 135.


Footnote # 8 for 56 FLRA No. 18 - Authority's Decision

   LIUNA cites AFL-CIO Laundry and Dry Cleaning International Union v. AFL-CIO Laundry, 70 F.3d 717 (1st Cir. 1995); Local Union 13410, United Mine Workers of America v. United Mine Workers of America et al., 475 F.2d 906, 912 (D.C. Cir. 1973); United Brotherhood of Carpenters v. Brown, 343 F.2d 872, 883 (D. Ariz. 1988); International Brotherhood of Boilermakers v. Local Lodge D405, 699 F. Supp. 749, 755 (D.Ariz. ); and International Brotherhood of Boilermakers v. Local Lodge D474, 673 F. Supp. 199, 203 (W.D.Tex. 1987).


Footnote # 9 for 56 FLRA No. 18 - Authority's Decision

   29 U.S.C. § 462 states:

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 correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organization.

Footnote # 10 for 56 FLRA No. 18 - Authority's Decision

   NFFE also argues that 5 C.F.R. § 2422.4 requires service of all documents on all parties. Regardless of whether NFFE was a "party," the Local did serve a copy of the petition on NFFE. See Statement of Service to petition, filed May 1, 1997. Additionally, the Local listed NFFE's National Office on the petition forms, as a labor organization affected by its petition. Pursuant to section 2422.6(a) of the Authority's Regulations, as an affected labor organization, the RD was required to notify NFFE that a petition had been filed, and did so.


Footnote # 11 for 56 FLRA No. 18 - Authority's Decision

   If a labor organization has a claim that its Constitution was violated as to a trusteeship, the election of officers, or fiduciary matters, pursuant to titles III, IV, or