90th Regional Support Command, Little Rock, Arkansas (Activity) and American Federation of Government Employees, Local 1017 (Exclusive Representative / Labor Organization) and Raul Marin (Petitioner / Individual)

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57 FLRA No. 10

90th REGIONAL SUPPORT COMMAND
LITTLE ROCK, ARKANSAS
(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1017
(Exclusive Representative/Labor Organization)

and

RAUL MARIN
(Petitioner/Individual)

DA-RP-00033
(56 FLRA 1041 (2000))

_____

DECISION ON REVIEW

March 29, 2001

Before the Authority: Dale Cabaniss Chairman; Donald S. Wasserman and Carol Waller Pope, Members.

I.     Statement of the Case

      By order dated December 29, 2000, the Authority, then-Chairman Wasserman concurring, granted the Activity's application for review of the Regional Director's Supplemental Decision and Order dismissing the petition, which was filed by Petitioner Raul Marin. The Regional Director dismissed the petition as untimely filed under the Federal Service Labor-Management Relations Statute (the Statute), and the Authority's Regulations. In granting review, the Authority asked the parties to file briefs addressing the following question:

Do restrictions on filing a petition where there is an existing collective bargaining agreement apply to a petition filed by an individual seeking to determine whether the exclusive representative no longer represents a majority of the employees in the unit?

      Subsequently, the Authority received administrative notice from the Office of the General Counsel of the Federal Labor Relations Authority that the petitioning individual had filed a second decertification petition concerning the same unit of employees. The Office of the General Counsel advised that this second decertification petition was timely filed. The General Counsel also advised the parties that upon completion of processing of related unfair labor practice charges, "the Region will continue to process the [second] representation petition." Exhibit 1 to response to order to show cause, letter to parties from Regional Director dated January 8, 2001.

      Accordingly, on January 12, 2001, the Authority issued to the parties an order to show cause why the Activity's application for review should not be dismissed as moot. The Activity filed a response to the order to show cause, accompanied by a brief. No other responses were filed.

II.     Brief in Response to Order To Show Cause

      The Activity's response to the order to show cause argues that the application for review is not moot because the Regional Director has not begun processing the second petition and "has suggested, in writing, that he may never process the second petition." Response at 1. Also, the Activity contends that the matter is not moot because there remains an absence of precedent on the applicability of the agreement bar period specified in section 7111(f)(3)(B) of the Statute to an individual seeking decertification of an exclusive representative. In addition, the Activity argues that even assuming, arguendo, that the second petition eventually is processed, the issued raised by the first petition "remains worthy of consideration . . . to provide future guidance." Id. at 2.

      Finally, the Activity asserts that time is of the essence in resolving the question of the incumbent Union's continued majority raised by the petitions, although it offers no argument in support of its assertion.

III.     Analysis and Conclusion

      The Activity presents no basis for its claim that the Regional Director "has suggested, in writing, that he may never process the second petition," id. at 1. To the contrary, the Regional Director stated that he "determined to defer processing the [second] representational petition until [related] unfair labor practice proceedings are completed." Exhibit 1 at 1. The Regional Director reiterated: "Upon completion of the processing of the unfair labor practice charges, the Region will continue to process the representation petition." Id. at 2 (emphasis added).

      Although our initial decision to grant review is consistent with the Activity's claims that there is an absence of precedent and that the issue is worthy of consideration, neither argument changes the fact that, at this time, there is no dispute to be resolved by the Authority. This is because the disputed defect that prevented the [ v57 p32 ] processing of the original petition has been cured by the filing of the second petition.

      Accordingly, we will dismiss the application for review, without pr