File 2: Opinion of Member Segal
[ v56 p150 ]
Member Segal concurring:
I join the majority decision in this case because it is clear that, under Authority precedent applying the Montrose doctrine, the Regional Director reached the correct conclusion. This precedent was initially developed over 25 years ago by the Assistant Secretary of Labor for Labor-Management Relations, under the program that preceded enactment of the Statute. See Executive Order 11491, as amended, Section 6. The Authority has consistently applied the Montrose doctrine in situations where a local union seeks to disaffiliate from a national union, without any suggestion that the local must notify the national of that intention. See Majority Opinion at 11-12. The Montrose doctrine, which was developed "to assure that . . . any change in affiliation accurately reflects the desires of the membership and that no question concerning representation exists," does not appear to preclude such notice. See Montrose, 4 A/SLMR at 860. At the same time, however, it has not been interpreted to require it.
The petitioner squarely requests that the Authority revisit this precedent, asserting solely that the Montrose doctrine was developed in connection with a "friendly" disaffiliation and should not be applied to one involving "adversarial entities." NFFE Brief at 7. I disagree with my concurring colleague's unexplained rejection of the petitioner's request. In my view, the Authority should grant the request and should reconsider the precedent. On this point, therefore, I agree with the dissent. Although the Montrose doctrine has been applied without regard to whether or not the proceedings were adversarial, it is not evident that the Authority has ever considered questions concerning its application in adversarial proceedings. It may well be that modification of the doctrine in such circumstances is in order.
However, I believe such reconsideration of the Montrose doctrine should be conducted with the involvement of the participants in the Federal labor-relations program who will be affected by any departure from such long-established precedent. The doctrine governs whether and how the exclusive representative of all bargaining unit members can be changed by a vote conducted among union members only. Changes in the doctrine, which is grounded almost exclusively in policy judgments rather than statutory construction, are likely to have major consequences for all participants in the Federal labor-relations program -- unions, agencies, and employees alike. For these reasons, I decline to redraw settled lines without seeking and giving due consideration to the views of those who will be affected by any new rules adopted.
It is certainly true, as my dissenting colleague points out, that the Authority has revised precedent in other cases without seeking such views. However, in each case a determination to solicit broader participation will turn on considerations such as the nature of the issues presented, the extent of the record that is already before the Authority, the degree to which doctrine is settled and is permissible under the Statute, and whether any Authority Member believes that further submissions will aid him or her in resolving important questions. In this case, these considerations warrant, in my view, reconsidering the Montrose precedent only with the aid of input from the labor-relations community, and not on the basis of the scant record on this point that the parties have created. The Montrose doctrine is grounded almost exclusively in policy, and no questions have been raised about either its consistency with the Statute or the Authority's consistency in applying it. [n1] Although legal arguments advanced by participants in the labor-relations community can certainly provide valuable assistance to the Authority in resolving questions about the Statute's requirements, it seems to me that carefully considering such views is particularly important when the questions to be resolved primarily concern policy determinations. This is even more compelling where, as here, the parties' submissions concerning modification of the Montrose doctrine comprise only a few sentences. Seeking broader views before modifying the Montrose doctrine is both reasonable and desirable, and could have been accomplished in this case (even after the parties' briefs were filed), with a decision issued, long before now.
Given the absence of a more complete record, and in order to arrive at a majority opinion, I reluctantly join in resolving this case solely on the basis of applying existing precedent, leaving reconsideration of the Montrose doctrine until another day.
Footnote # 1 for 56 FLRA No. 18 - Opinion of Member Segal