U.S. Department of the Interior, Bureau of Land Management, Phoenix, Arizona (Activity) and National Federation of Federal, Employees, Local 376 (Labor Organization/Petitioner)

[ v56 p202 ]

56 FLRA No. 23

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
PHOENIX, ARIZONA
(Activity)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES. LOCAL 376
(Labor Organization/Petitioner)

DE-RP-90037

_____

DECISION AND ORDER ON REVIEW

March 21, 2000

_____

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

I.     Statement of the Case

      This case is before the Authority on an application for review and request for stay filed on behalf of Local 376 of the National Federation of Federal Employees (NFFE, Local 376), by its representative, the American Federation of Government Employees, AFL-CIO (AFGE), [n1] under section 2422.31 of the Authority's Regulations seeking review  [n2] of the Regional Director's (RD's) Decision and Order on a petition to amend a certificate of recognition. The Activity did not file an opposition.

      NFFE, Local 376 held a Montrose  [n3] election and voted to change its affiliation from NFFE to AFGE, AFL-CIO. NFFE, Local 376 filed a petition requesting that its certificate of representation be amended to reflect this change.

      The RD found that NFFE, Local 376 was recognized as the exclusive representative of separate professional and nonprofessional units of employees. [n4]  The RD granted NFFE, Local 376's petition for a change in affiliation with respect to the nonprofessional unit and dismissed the petition as it concerned the professional unit.

      For the reasons set forth below, we find that NFFE, Local 376 has not established that the RD erred in concluding that it is the exclusive representative of separate professional and nonprofessional units. We also find that NFFE, Local 376 has not established that the RD erred in the application of the Montrose criteria, or that there is an absence of precedent as it alleges. Accordingly, we deny the application as it concerns these contentions. We grant the application as it concerns the question of whether a QCR exists in the professional unit, and we remand the case to the RD for further proceedings consistent with this decision.

      In addition, for the reasons set forth below, we deny the request for a stay.

II.     Background and the RD's Decision

      This case arises from a petition filed by NFFE, Local 376 seeking to amend a certificate of recognition [ v56 p 203 ] to reflect a change in its affiliation from NFFE to AFGE, AFL-CIO.

      At the time the petition was filed, there were several hundred bargaining unit employees. [n5]  Of this number, three were dues paying members and nonprofessional. Additionally, the Union president, who had retired from the Activity, was a member. The officer and steward structure of NFFE, Local 376 included a president, vice-president, treasurer, secretary, chief steward, and one steward from the BOR unit. The treasurer and secretary positions were vacant.

      Around August 1, 1999, the president, vice-president, and the two stewards jointly decided to seek to reaffiliate with another union. Later in August, the vice-president advised BLM members of a special meeting to discuss the proposed affiliation and to vote on the issue. A special notice was hand delivered to members at the NTC and by phone call to the member at the Arizona State Office. The notice: (1) described affiliation as the alignment or association of a union with a national organization; (2) stated that an affiliation does not create a new organization, nor does it result in the dissolution of an already existing organization; (3) stated that on a vote for reaffiliation with AFGE, the Local would be bound by AFGE's constitution and pay a per capita tax of $5.75 to AFGE, but there would be no change in officers or the negotiated agreement; and (4) stated that a vote to remain affiliated with NFFE would entail no change in officers or negotiated agreement, and that NFFE's constitution and per capita tax would continue to apply. Members were also notified of the meeting date, time, and place.

      The meeting took place as scheduled and was attended by three people--two nonprofessional BLM employee members, and the BOR steward. The three members voted by secret ballots, all of which were in favor of reaffiliation.

      Applying the Montrose criterion that examines continuity of representation resulting from the reaffiliation, the RD found that the officer/steward structure and the local number (376) will not change; the local will continue to administer the existing contract; and pending the approval of the petition, the local expects to lower dues and transfer its funds to AFGE.

      The RD further found the evidence established that NFFE, Local 376 was originally recognized as the exclusive representative of separate bargaining units for the professional and nonprofessional employees of the Activity. The RD found that there was "no evidence to suggest that a subsequent petition was filed or that any election occurred for the purpose of combining the professional and nonprofessional employees in these two units into a single unit" in accordance with Statutory procedures. Regional Director's Decision and Order (RD's Decision and Order) at 5. Consequently, the RD found it appropriate to evaluate the petition on the basis that "NFFE[,] Local 376 has continued to represent separate professional and nonprofessional units." Id.

      The RD found that NFFE, Local 376 had complied with Montrose as it concerned the nonprofessional unit. However, with respect to the professional unit, the RD found that the evidence established that NFFE, Local 376 had no BLM members and the "change in affiliation election . . . in no way included a vote by [the] membership of the professional unit." Id. at 6-7. The RD found that "none of the requisite Montrose procedural preconditions undertaken in this case were, or could have been, applied to the professional BLM unit, given the absence of any professional employee members." Id. at 7. The RD also noted that the absence of any Union members in the professional bargaining unit "may arguably raise a [QCR] with respect to the continued existence of the unit," but found that it was "inappropriate for the Region to resolve that issue in the context of the instant change in affiliation proceeding." Id. n.7. According to the RD, the appropriate options include, NFFE, Local 376 filing a disclaimer of interest petition, following which any interested labor organization, such as AFGE, could file a petition with respect to the employees in question.

      Citing Authority precedent, the RD stated that there was no basis for applying the results of one unit's election to another unit regardless of shared affiliation. The RD found that the Montrose analysis applied on a unit specific basis. The RD, therefore, concluded that NFFE, Local 376 did not meet the procedural requirements for reaffiliation of the professional unit. Accordingly, the RD granted NFFE, Local 376's petition for a change in affiliation with regard to the nonprofessional unit, but dismissed it as it concerns the professional unit. [ v56 p 204 ]

III.     NFFE, Local 376's Application for Review and Stay of the RD's Decision

      First, NFFE, Local 376 asserts that the RD's decision raises a "substantial question of law and policy because the [RD] departed from the well-established" precedent concerning changes in affiliation of an exclusive representative set forth in Montrose, 4 A/SLMR 858. Application at 1. According to NFFE, Local 376, the RD erred as a matter of law by finding that the Montrose requirements "must" be applied "'unit by unit[,]'" rather than finding that a union "may change affiliation to another parent union as a single functional entity[.]" Id. at 2. Further, NFFE, Local 376 contends that the fact that there were no professional members in the unit at the time of the vote did not relieve the local of its standing as an exclusive representative for the professionals. NFFE, Local 376 argues that the "Montrose requirements are indeed silent on the issue of membership percentage necessary to reaffiliate[.]" Id.

      Second, NFFE, Local 376 contends that the RD erred as a matter of fact in finding that the professional and nonprofessional units are not consolidated, because their consolidation pre-dates the Federal Service Labor-Management Relations Statute (the Statute) and must be accepted by the savings clause. [n6]  According to NFFE, Local 376, it "has represented both the professional and non-professional employees of the [Activity] in all labor matters as a single unit under a single contract." Id. at 2.

      Third, NFFE, Local 376 asserts that the decision raises a novel issue not covered by Authority precedent as to change in affiliation of an exclusive representative where a multi-unit local has no member in what is purported to be a separate unit. NFFE, Local 376 contends the RD provided "no precedent[] to support the decision to split the units, and has in effect de-certified the union in the professional unit." Id. at 1.

      Fourth, NFFE, Local 376 requests a stay of the decision "as it affects the professional employees" unit. Id.

      Lastly, NFFE, Local 376 requests that the Authority order an election "to determine who shall be [the] exclusive representative[]" for this unit. Id. at 1, 4. According to NFFE, Local 376, a QCR exists. NFFE, Local 376 asserts that the "decision greatly impacts the continuity of representation for the professional employees as all the officers and stewards of what was NFFE[,] Local 376 are now part of AFGE. Funds that were formerly part of NFFE[,] Local 376 have been transferred to AFGE[,] Local 376 leaving any NFFE remnant financially insolvent." Id. at 2. NFFE, Local 376 asserts that with "no officers or stewards to enforce the CBA and no money to enforce the [CBA] in case of arbitration, the professional employees are in effect denied the right to union representation and a good faith doubt as to continuing majority status has been created." Id. at 2-3.

IV.     Analysis and Conclusions

A.     The RD Did Not Fail to Apply Established Law

      In order to amend a certificate of exclusive recognition to reflect a change in affiliation, the procedures set forth in Montrose must be followed. Florida NG, 25 FLRA 728. See also Florida National Guard, St. Augustine, Florida, 34 FLRA 223, 227 (1990). Thus, to assure that an amendment of certification conforms to the desires of a union's membership and that no QCR exists, 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.

      NFFE, Local 376 contends that the RD erred as a matter of law by applying Montrose on a unit by unit basis rather than on the basis of a shared affiliation. For [ v56 p 205 ] the reasons that follow, we conclude that the RD did not depart from Authority precedent in this respect.

      Contrary to NFFE, Local 376's contention, the procedures established in Montrose were designed to ensure that an amendment of certification of "an exclusive representative in an existing unit" conforms to the desires of the membership of that unit. U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 46 FLRA 76, 79 (1992) (Rock Island, Arsenal). Also, section 7111(b)(2) of the Statute refers to "amendment to, a certification then in effect . . . [.]" [n7]  This can only refer to certified units. Accordingly, NFFE, Local 376's claim that affiliation can be considered on any other basis than by "unit" is not supported by case law or by the Statute.

      Further, as NFFE, Local 376 contends, there is no requirement under Montrose that a specific percentage or number of members must vote in order for an affiliation change to be effective. Rock Island Arsenal, 46 FLRA at 83. However, NFFE, Local 376 misunderstands the application of the Montrose requirements. The four Montrose procedural requirements, set forth above, must be met before an amendment to an exclusive representative's certification can occur. In the case of the professional unit, the undisputed evidence establishes that there were no members in the professional unit. Therefore, the Montrose requirements, including the requirement of a vote by the members, could not be met, nor could it be determined if the change in affiliation conformed to the desires of the professional unit. As these prerequisites could not be met, we deny the application for review on this issue.

B.     The Decision Is Not Based on Clear and Prejudicial Error Concerning a Substantial Factual Matter

      NFFE, Local 376 contends that the RD erred as a matter of fact in finding that the professional and nonprofessional units are not consolidated. We construe the Union's contention as a claim that the RD "committed a clear and prejudicial error concerning a substantial factual matter." 5 C.F.R. § 2422.31(c)(3)(iii).

      NFFE, Local 376 has not shown that the RD's finding is clearly erroneous. In finding that NFFE, Local 376 represented separate professional and nonprofessional units, the RD considered the following: (1) a 1973 collective bargaining agreement that expressly covered nonprofessional employees and referenced a September 22, 1969 letter of recognition, and a separate 1973 agreement for a professional unit that referenced a September 22, 1969 letter of recognition; (2) clarification of unit petitions filed by the Activity on November 11, 1995, DE-CU-60010, seeking to clarify an all non-professional unit to exclude certain non-professionals employees and, DE-CU-60007, as amended, seeking to clarify an all non-supervisory professional unit to exclude certain professional employees; (3) an Office of Personnel Management (OPM) publication, Union Recognition in the Federal Government (as of 1997), which showed that NFFE, Local 376 was originally recognized as the exclusive representative of separate units in 1969. [n8] 

      The RD also noted that under section 7112(b)(5), a unit seeking to include both professional and other employees cannot be determined appropriate unless a majority of the professional employees vote for inclusion in the unit. The RD examined certifications of records and found no evidence, through the investigation of the petition or presented by the parties, to suggest that a subsequent petition had been filed or that any election occurred to combine the units as required by the Statute.

      NFFE, Local 376 asserts that the units' consolidation pre-dates the Statute. However, the Union has provided no evidence to substantiate this claim or show that the RD's finding is clearly erroneous. Although NFFE, Local 376 may have represented both the professional and non-professional employees of the Activity in all labor matters under a single contract, as it claims, there is no evidence indicating that the professional and nonprofessional units were consolidated consistent with the requirements of the Statute. It is also noted that the requirement that professional employees vote to be included in a unit with non-professionals was contained in section 6(a)(4) of Executive Order 10988 and was also required under Executive Order 11491, as amended. See Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, 96th Cong., 1st Sess. (Comm. Print No. 9607) at 1214; Veterans Administration, 3 FLRC 161, 167 (1975). Thus, even if the alleged consolidation occurred under certain exceptions to the election requirement of Executive Order 10988 or Executive Order 11491, evidence of a consolidation would be required. No such evidence was presented by NFFE, Local 376 in this case. [ v56 p 206 ]

      Additionally, as late as 1997, OPM's compilation of unit recognitions showed NFFE, Local 376 as the exclusive representative for two separate units. Based on the above, the RD's finding that NFFE, Local 376 is the exclusive representative for two separate units is not clearly erroneous. Accordingly, we deny the application for review on this issue.

C.     The Decision Does Not Raise an Issue for Which There Is an Absence of Precedent

      The RD's decision raises no genuine issue for which there is an absence of precedent. NFFE, Local 376 asserts that there is an absence of precedent to address a change in affiliation where a multi-unit local has no members in one of the units. However, the RD properly applied the Montrose requirements to each unit. As discussed in Section IV.A. above, the requirements established in Montrose were designed to ensure that an amendment of certification of an exclusive representative in an existing unit conforms to the desires of the membership of that unit. Accordingly, there is not an absence of precedent for the RD's decision. Therefore, we deny the application for review on this issue.

D.     A Remand Is Necessary to Ascertain Whether There Is Reasonable Cause to Believe that a QCR Exists Regarding the Continued Existence of the Professional Unit

      The RD stated that the absence of any Union members in NFFE, Local 376's bargaining unit "may arguably raise a [QCR] with respect to [the] continued existence of that unit," but that it "[wa]s inappropriate for the Region to resolve that issue in the context of the instant change in affiliation." RD's Decision and Order at 7 n.3. NFFE, Local 376 asserts that if the professional employees constitute a separate unit, an election should be ordered "to determine who shall be [the] exclusive representative[]" for this unit. Application at 4. We construe NFFE, Local 376's contention as a claim that the RD committed a prejudicial procedural error by failing to examine whether a QCR exists with respect to the professional unit.

      Section 7111(b)(2) provides, in relevant part, that if a petition is filed with the Authority:

by any person seeking . . . an amendment to, a certification then in effect or a matter relating to representation; the Authority shall investigate the petition, and if it has reasonable cause to believe that a question of representation exists, it shall provide an opportunity for a hearing (for which a transcript shall be kept) after a reasonable notice. If the Authority finds on the record of the hearing that a question of representation exists, the Authority shall supervise or conduct an election on the question by secret ballot and shall certify the results thereof. . . .

      Consistent with the plain wording of this section, if in investigating a petition to amend a certification there is reasonable cause to believe that a QCR exists, then an opportunity for a hearing on the matter "shall" be provided. This statutory requirement is not discretionary and does not depend on the type of petition filed. Rather, it depends on whether there is reasonable cause to believe that a QCR exists. We note, in this respect, that section 2422.1 of the Authority's Regulations provides for only one type of petition.

      Based on the foregoing, we find that the RD's action in not addressing the question of whether there was reasonable cause to believe that a QCR exists with respect to the professional unit constituted prejudicial procedural error. Because it is not clear from the RD's finding whether there is reasonable cause to believe that a QCR exists with respect to the professional unit, a remand of the case is necessary.

      On remand, the RD is directed to determine whether there is reasonable cause to believe that a QCR exists with respect to the professional unit of NFFE, Local 376. If the RD determines that there is reasonable cause to believe that a QCR exists, an opportunity for a hearing shall be provided. If on the record of the hearing, it is determined that a QCR exists, the RD shall supervise or conduct an election on the question, as appropriate. If the RD finds there is no reasonable cause to believe that a QCR exists with respect to the professional unit, the RD shall dismiss the petition.

      Accordingly, we grant the application on this issue and remand the case to the RD for further proceedings consistent with this decision. [n9] 

V.     Order

      For the reasons set forth above, we grant the application for review in part and remand the petition to the RD. On remand, the RD shall determine whether there [ v56 p 207 ] is reasonable cause to believe that a QCR exists with respect to the professional unit, and if so, shall take the necessary actions consistent with this decision.

      We deny the application in all other respects. [n10] 


APPENDIX

Section 7111 provides, in pertinent part, as follows:

§ 7111. Exclusive recognition of labor organizations

      (a) An agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit who cast valid ballots in the election.

      (b) If a petition is filed with the Authority--

(1)     by any person alleging--
     (A) in the case of an appropriate unit for which there is no exclusive representative, that 30 percent of the employees in the appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative, or
     (B) in the case of an appropriate unit for which there is an exclusive representative, that 30 percent of the employees in the unit allege that the exclusive representative is no longer the representative of the majority of the employees in the unit; or
     (2) 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, and if it has reasonable cause to believe that a question of representation exists, it shall provide an opportunity for a hearing (for which a transcript shall be kept) after reasonable notice. If the Authority finds on the record of the hearing that a question of representation exists, the Authority shall supervise or conduct an election on the question by secret ballot and shall certify the results thereof. An election under this subsection shall not be conducted in any appropriate unit or in any subdivision thereof within which, in the preceding 12 calendar months, a valid election under this subsection has been held.



Footnote # 1 for 56 FLRA No. 23

   The application was signed by AFGE in its own name and did not reference the National Federation of Federal Employees, Local 376 (NFFE, Local 376). Because the record did not show AFGE was a party to this case, the Authority issued an order requesting AFGE to clarify whether the application was filed on behalf of the Petitioner, or on its own behalf as a party seeking to intervene in this matter. NFFE, Local 376, responded to the order stating that it had designated AFGE to act as its representative and, therefore, AFGE had authority to act on all matters in this case. We find, therefore, that AFGE is acting as the representative of NFFE, Local 376 in this case.


Footnote # 2 for 56 FLRA No. 23

   5 C.F.R. § 2422.31(c) provides, in pertinent part, that the Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:

(1)     The decision raises an issue for which there is an absence of precedent;
(2)     Established law or policy warrants reconsideration; or
(3)     There is a genuine issue over whether the Regional Director has:
(i)     Failed to apply established law;
(ii)          Committed a prejudicial procedural error;
(iii)          Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 3 for 56 FLRA No. 23

   See Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974) (Montrose), reaffirmed in Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987) (Florida NG).


Footnote # 4 for 56 FLRA No. 23

   NFFE, Local 376 described the unit affected by the petition as follows:

Included: All professional and nonprofessional employees of the Department of the Interior, Bureau of Land Management [BLM], National Training Center [NTC], Arizona State Office, Phoenix Field Office and Kingman Field Office.
Excluded: Management officials, supervisors, confidential employees, employees engaged in Federal personnel work in other than a purely clerical capacity, employees engaged in investigation or audit functions relating to the work of individuals employed by the Agency whose duties directly affect the internal security of the Agency.

Footnote # 5 for 56 FLRA No. 23

   NFFE, Local 376 also represents employees of the Bureau of Reclamation (BOR). The local's reaffiliation effort with regard to this unit was addressed separately in another case, which has not been appealed to the Authority.


Footnote # 6 for 56 FLRA No. 23

   Section 7135(a) of the Statute authorizes the renewal or continuation of units that came into existence prior to the effective date of the Statute. Section 7135(a) provides as follows:

      Sec. 7135. Continuation of existing laws, recognitions, agreements, and procedures

(a)     Nothing contained in this chapter shall preclude--

      (1)     the renewal or continuation of an exclusive recognition, certification of an exclusive representative, or a lawful agreement between an agency and an exclusive representative of its employees, which is entered into before the effective date of this chapter[.]


Footnote # 7 for 56 FLRA No. 23

   The pertinent text of section 7111 is set forth in the Appendix to this decision.


Footnote # 8 for 56 FLRA No. 23

   The RD was unsuccessful in obtaining the original letters of recognition from OPM, which indicated that the letters were not available.


Footnote # 9 for 56 FLRA No. 23

   Chairman Wasserman believes that there are sufficient grounds on which to find reasonable cause to believe that a QCR exists with respect to the professional unit of NFFE, Local 376. In this regard, he notes that the change in affiliation of the local, at least for the non-profess