File 4: Opinion of Chairman Wasserman
[ v56 p151 ]
Chairman Wasserman, dissenting
This case is ripe for our review of how the Montrose doctrine applies in adversarial takeover situations. For the reasons stated below, I dissent from the majority's application of the current Montrose doctrine because I believe that the addition of a notice requirement to a parent labor organization is warranted in these circumstances.
Congress vested the Authority with the responsibility to resolve representation issues, including the designation of exclusive representatives. See 5 U.S.C. §§ 7105(a)(2)(A) and (B); §§ 7111; 7112. In exercising this congressional mandate, we determine collectively when it is appropriate to solicit the views of parties in a case or the views of the labor relations community at-large to assist in resolving questions that come before us. My colleagues and I decided that it would be beneficial to solicit only the parties' views in this case and we did so more than two years ago. The parties responded as they saw fit. I am not aware of any cases in which the Authority solicited input from the parties first and then solicited input from the community.
It is now time for the Authority to exert its leadership role and resolve the questions raised. To delay further the resolution of this case in order to solicit the views of all the participants in the labor-relations program, when we are quite capable of addressing the issues presented, would not assist either the parties, who deserve a final resolution of their dispute, or the labor-relations community at-large.
Authority precedent is replete with examples of cases involving important legal issues and policy judgments where the Authority did not solicit broad input even though the decisions had a significant effect on large segments of the labor-relations community. For example, in International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135, et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677 (1995), the Authority reexamined and redefined the meaning of the term "specifically provided for by law." That term has enormous relevance in assessing the conditions of employment that may be negotiated by all parties in the [ v56 p 152 ] federal sector. Yet, that reexamination was done without the benefit of community participation. [n1]
The Authority has demonstrated no reluctance in modifying precedent of even longer duration than Montrose despite the absence of any request to do so by any of the parties whose views were, in fact, solicited. In this connection, I point to Social Security Administration, 52 FLRA 1159 (1997) (SSA), in which a majority of the Authority, including my concurring colleague, found that the so-called "Natick" approach to addressing questions of unlawful assistance to unions in representation campaigns warranted revision since that approach "ha[d] been applied by the Authority to address situations different from those presented in Natick[,]" was "inflexible" and was "practically unworkable in certain circumstances . . . ." 52 FLRA at 1168, 1174. [n2] While I recognize that distinctions can be drawn between this case and SSA, the fact remains that my colleague had no hesitancy altering existing precedent where no one had explicitly requested us to do so. For reasons that remain elusive to me, there seems to be an unwillingness to address head on our Montrose precedent, even where we have been squarely asked to do just that and my colleague acknowledges a need to review that precedent.
The insistence on broad community input is also at odds with our deliberative process in other cases involving representation issues, which have presented both policy judgments and legal questions. Scanning our precedent in that area over the past five years, I have found a number of instances in which we resolved an application for review of a regional director's decision based on the record before us or after soliciting the views only of the parties in that particular case. See, e.g., U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 55 FLRA 359 (1999) (Authority addressed appropriateness of unit question based on record before it); United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 51 FLRA 1414 (1996) (Authority requested party briefs on application of successorship and accretion principles). We do not shy away from modifying principles of long-standing duration where there is a compelling reason to do so. See, e.g., U.S. Department of Veterans Affairs, 55 FLRA 781 (1999) (Authority modified existing precedent to require regional directors to resolve petitions for unit clarification involving vacant positions under prescribed circumstance). Indeed, we even addressed a novel issue in a case involving the Montrose doctrine, without seeking community input. See U.S. Environmental Protection Agency, Washington, D.C., 52 FLRA 772 (1996) (EPA) (Authority addressed standing to file a change of affiliation petition where a trusteeship had been imposed prior to the members' vote).
My colleague states, but does not entirely explain why review of policy-based doctrines commands broad community input. The Statute draws no distinction between the Authority's responsibility to address and decide policy versus legal doctrines and I do not believe we are any less equipped to decide the former over the latter.
Unlike my colleague, I also believe that the record provides an adequate basis for us to review the Montrose doctrine. For example, the applicant states that the Montrose doctrine was developed in one set of circumstances and questions whether this "antiquated misapplied analysis applies" in other circumstances. Application for Review at 7. It seems to me that the applicant's question raises a direct challenge with regard to the doctrine's consistency with the Statute.
In sum, I am not opposed to soliciting input. It is certainly appropriate to consider the views of the entire labor relations community on issues that have wide significance, and I have advocated seeking broad input on many occasions. I agree with my concurring colleague that a determination to solicit broader participation turns on such matters as the nature of the issue presented, the extent of the record before the Authority, the degree to which the doctrine is settled and is permissible under the Statute, and whether any Member believes that further submissions will aid in resolving important questions. Applying these considerations, we all determined that input only from the parties was appropriate in this case. As stated earlier, I believe that further delay of this case [ v56 p 153 ] to seek broader input at this time is unwarranted. [n3] I take particular note of the fact that the employees in this case sought to change their exclusive representative through the filing of a petition more than two and a half years ago. It is now more than two years since we asked the parties to brief us on two discrete issues. To delay, even more, the furnishing of an answer in this case does a disservice to the employees who, for all we know, may well have lost interest in this proceeding. "[T]he Authority has long held that representation matters must be resolved expeditiously." EPA, 52 FLRA at 780-81.
I have been, and am, prepared to focus on and resolve the case at hand. Here, the parent labor union, National Federation of Federal Employees (NFFE), argues that the Montrose doctrine "is wrong and must be reviewed, changed, or abolished in [its] entirety." NFFE's Brief at 7. NFFE claims, and correctly so, that the Montrose procedures "originally settled the question between amicable entities who desired the same conclusion." Application for Review at 7. NFFE states, among other things, that it should have been made aware of the proceedings at all stages of this case as were the parties in Montrose. According to NFFE, the question now to be addressed is whether Montrose "applies to two adversarial entities." Id.
The "Montrose doctrine" refers to a case of the same name that was decided under Executive Order 11491, the forerunner to the Statute: Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974), review denied, 3 FLRC 259 (1975). The factual setting in which the doctrine was developed is critical to an understanding of my position and, therefore, I discuss it at some length.
In Montrose, employees of a local union asked their parent organization to be released from their charter in order to affiliate with a different labor organization. Subsequently, representatives of the parent and the new labor organization arranged for "a transfer of affiliation[.]" Id. at 859. The new labor organization filed a petition with the Assistant Secretary of Labor seeking to change the designation of the labor organization representing the affected employees.
The Assistant Secretary dismissed the petition. He found that two requirements had to be satisfied in order to amend a certification or recognition. First, any change brought about by the amendment could not affect the continuity of the employees' representation. Second, certain procedures had to be met "to assure that any such change in affiliation accurately reflects the desires of the membership and that no question concerning representation exists[.]" As to those procedures, the Assistant Secretary stated the following:
[I]n order to assure that an amendment for certification or recognition conforms to the desires of the membership, the following steps, at a minimum, should be taken: (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.
4 A/SLMR at 860.
The first opportunity the Authority had to apply the Montrose doctrine under the Statute, was in Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987). In that case, a union filed a petition to change the name of the representative from one local of a national union to a different local within the same national union. The Authority determined that the same principles that applied to a change in affiliation applied to mergers, as well. See also Naval Aviation Depot, Naval Air Station, Alameda, California, 47 FLRA 242 (1993) (application of Montrose doctrine to merger).
Significantly, in my view, in both of these situations, the "consented to" takeover and the intra-union merger, all the affected labor organizations were aware of or agreed to the proposed changes in affiliation. In contrast to these situations, the Authority has applied the Montrose doctrine where there was no apparent awareness of and/or agreement among the unions affected by the change. See cases cited in Majority opinion, slip op. at 11-12. In reality, it is difficult to tell conclusively from those decisions whether the parent labor organization had knowledge of the proposed change in affiliation. [ v56 p 154 ] Even assuming, however, that there is Authority precedent applying the Montrose doctrine in situations involving adversarial takeovers, I believe that the indiscriminate application of that doctrine to cases for which the doctrine was not developed is wrong.
Let us review the wording of the Montrose doctrine itself. There are four procedural criteria which, at a minimum, must be met. Of the four stated criteria, three are focused on the holding of, and conduct at, a special meeting among union members. Specifically, these criteria require that members be given adequate advance notice of a special meeting, called for the sole purpose of discussing a proposed change in affiliation, that is conveniently held for all members to attend and at which there is adequate time to discuss the proposed change. Quite clearly, the purpose of the special meeting is to inform the members of the reasons for the proposed change and to allow the members an opportunity to discuss freely and fully the entire range of issues encompassed by such a change, including the ramifications that a change in exclusive representative would have on the members and the bargaining unit. Elemental notions of fairness and due process, including the requirement that normal parliamentary procedures be followed, dictate that all sides be given an opportunity to voice their positions. It seems quite evident that providing a forum where all voices are given an opportunity to be heard serves to promote an informed electorate.
Given the case before us today, the words of the Assistant Secretary take on added significance when one considers that, nearly 25 years ago, he recognized that there might be a need to develop additional procedural safeguards. It was for that reason that the Assistant Secretary did not limit the safeguards to those that were appropriate for that factual setting, but instead, clearly stated that the prescribed safeguards were "at a minimum." 4 A/SLMR at 860. The Authority has never accepted the invitation to consider whether other safeguards are appropriate in different situations. [n4] Although perhaps belated, I now accept that invitation.
Simply stated, I believe that when employees seek to change their affiliation in an adversarial takeover situation, the certified representative must notify its parent organization of the proposed change. This notice requirement would give the parent labor organization an opportunity to express its views and make its position known to the union membership at a time when the membership is engaged in its deliberations. Providing the parent labor organization notice furthers the primary purpose of the procedural safeguards, which is to have a fully informed electorate vote on a proposed change of affiliation. Particularly in cases such as this one, where a geographically dispersed unit makes the holding of a special meeting among all the members impractical or impossible, the need for a notice requirement to the parent labor organization is compelling.
I recognize that the existing Montrose safeguards have been applied in the federal sector labor-relations program for many years with both apparent understanding and relative ease by the community. I do not lightly disrupt clear and well-accepted Authority precedent. However, the additional procedural safeguard that I would require is not, by any means, an extreme departure from the principles of Montrose. To the contrary, it is designed to bolster the principles underlying Montrose, which I have identified above. Furthermore, I do not view the notice requirement as an undue imposition on a local union's internal affairs any more so than the original Montrose requirements or, for that matter, standards of conduct that are prescribed for labor organizations. See 5 U.S.C. § 7120. In any event, since the notice requirement serves to place union members in a more informed position, and ultimately serves to strengthen their representation, the benefit to employees in this instance outweighs any cost to the institution.
In rejecting a notice requirement to the parent labor union, my other colleague emphasizes that the "stated purpose" of the Statute is to prescribe rights and obligations of employees." See slip op. at 18. In fact, the Statute prescribes rights and obligations of labor organizations just as much as it does for employees and perhaps even more so. Indeed, it is labor organizations and collective, not individual employee, bargaining that Congress found to be in the public interest. See 5 U.S.C. § 7101. The Statute is replete with protections for the institutional interests of labor unions, of which my colleague should be well aware. See 5 U.S.C. § 7114; American Federation of Government Employees, National Council of HUD Locals 222 and U.S. Department of Housing and Urban Development, 54 FLRA 1267, 1276 (1998) (Member Wasserman dissenting as to other matters) (discussing obligation of [ v56 p 155 ] agencies to bargain with exclusive representatives under section 7114(a)(1) of the Statute). A policy that allows all stakeholders to express their respective interests and to demonstrate how they will represent the bargaining unit promotes employee rights, which furthers the statutory purpose.
In establishing a notice requirement, I also realize that a practical consequence may be a greater use of trusteeships imposed by parent labor organizations to forestall disaffiliation attempts. Safeguards exist in that eventuality, however, since trusteeships can only be imposed for valid reasons. Moreover, trusteeships, the validity of which is questioned, can be challenged through procedures established by the Department of Labor. See 29 C.F.R. § 458.26-28; EPA, 52 FLRA at 779-80. Lastly, a trusteeship can never foreclose a petition and election upon a valid showing of interest, when the petition is filed during a "window period."
Having set forth my views, I have only to apply the Montrose doctrine, as modified to reflect a notice requirement, to the facts of this case. [n5] There is no dispute that NFFE was not given notice of the proposed change in affiliation by its local. Therefore, I would find that the vote among the union members was not held in conformance with the stated requirements. That being the case, the petition to amend the change in certification should have been dismissed. [n6] In reaching this result, I find no reason to question, or disturb, the Regional Director's application of the other Montrose requirements.
Since I would dismiss the petition in this case, there is no need for me to address any of the other issues presented, such as the arguments pertaining to NFFE's constitution and the effect of a trusteeship imposed after a petition to amend certification has been filed.
As a final matter, I wish to note that, in setting forth and applying my views on a notice requirement in adversarial takeover situations, I have purposely not set out all the parameters of that requirement. I believe it would be more appropriate to provide further guidance and, as the need arises, consider other aspects of the Montrose doctrine, when one or both of my colleagues can join in that task.
Footnote # 1 for 56 FLRA No. 18 - Opinion of Chairman Wasserman
Other examples of cases in which the Authority reversed precedent or modified or established "frameworks" without broad community input, include: United States Immigration and Naturalization Service, Washington, D.C., 55 FLRA 69 (1999) (INS) (Authority majority reversed long-standing interpretation and application of section 7116(a)(6) of Statute); National Treasury Employees Union and Federal Deposit Insurance Corporation, 53 FLRA 1469 (1998) (Authority reversed precedent regarding statute of limitations under Fair Labor Standards Act and set forth appropriate standard); and U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146 (1997) (BEP) (Authority revised analytical framework for addressing exceptions to arbitral awards that alleged violations of management rights). Even in those cases in which the Authority reversed or modified its precedent based on court remands, which arguably would favor broad input, the Authority has not routinely done so.
Footnote # 2 for 56 FLRA No. 18 - Opinion of Chairman Wasserman
Footnote # 3 for 56 FLRA No. 18 - Opinion of Chairman Wasserman
I do not understand my colleague's statement that seeking broader views "could have been accomplished in this case (even after the parties' briefs were filed), with a decision issued, long before now." See concurring opinion, slip op. at 17. We could have solicited broad input over two years ago. Having purposefully decided to limit the source of that input to the parties in this case, however, I agree that a decision could have issued long before now.
Footnote # 4 for 56 FLRA No. 18 - Opinion of Chairman Wasserman
In reality, the Authority has already modified a strict application of Montrose by not requiring a union to adhere to the meeting requirement where the bargaining unit was geographically dispersed and the holding of a special meeting was impractical. U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 33 FLRA 482 (1988), order denying motion for reconsideration and related motions and requests, 34 FLRA 428, order denying motion for reconsideration, 35 FLRA 99 (1990). In the case now before us, a special meeting was not held because the bargaining unit members are geographically dispersed.
Footnote # 5 for 56 FLRA No. 18 - Opinion of Chairman Wasserman
The Authority typically applies any modified frameworks or changes in its law to the cases in which the change is made and I do the same here. See, e.g., INS, 55 FLRA at 78-79; BEP, 53 FLRA at 151-57.
Footnote # 6 for 56 FLRA No. 18 - Opinion of Chairman Wasserman
A substantial period of time has elapsed since the petition was filed following the vote among the membership. As a general matter, employees who are dissatisfied with their exclusive representative have several choices under the Statute to rectify that situation. For example, an election may be held among competing unions during an appropriate "window period," the employees may seek to decertify their existing exclusive representative, or they may seek to change their affiliation, in a manner described above. I do not comment here on the appropriateness of any of those choices for the employees in this case but simply wish to note their availability.