United States, Department of the Navy, Mid-Atlantic Regional Maintenance Center, Norfolk, Virginia (Activity/Petitioner) and International Federation of Professional and Technical Engineers, AFL-CIO (Labor Organization/Incumbent) and International Federation of Professional and Technical Engineers, AFL-CIO (Labor Organization/Incumbent) and International Federation of Professional and Technical Engineers Local 10, AFL-CIO (Labor Organization/Incumbent)

[ v61 p530 ]

61 FLRA No. 98

UNITED STATES
DEPARTMENT OF THE NAVY
MID-ATLANTIC REGIONAL
MAINTENANCE CENTER
NORFOLK, VIRGINIA
(Activity/Petitioner)

and

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, AFL-CIO
(Labor Organization/Incumbent)

and

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, AFL-CIO
(Labor Organization/Incumbent)

and

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS LOCAL 10, AFL-CIO
(Labor Organization/Incumbent)

WA-RP-05-0031

_____

ORDER DISMISSING
APPLICATION FOR REVIEW

February 14, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This case is before the Authority on an application for review filed by the International Federation of Professional and Technical Engineers (IFPTE) under § 2422.31 of the Authority's Regulations. [n1]  The Activity filed an opposition to IFPTE's application.

      The Regional Director (RD) found that the criteria for determining that the Activity is a successor employer were met, and she issued a new certification stating that IFPTE is the exclusive representative of employees transferred to the Activity.

      For the following reasons, we dismiss the application for review.

II.     Background and RD's Decision

      After the Activity was created, employees represented in four separate bargaining units, and a group of unrepresented employees, were transferred to the Activity. [n2]  The Activity filed a petition seeking a determination that the transferred employees constitute a single bargaining unit.

      Before the RD, the parties entered into an agreement that stipulated several matters. As relevant here, the agreement stipulated that "[t]he parties hereby waive a hearing in this matter and the right to file an application for review of the Decision and Order to be issued by the [RD] based upon this stipulation." Application, Attachment 1 at 5. In resolving the petition based on the stipulation in lieu of a hearing, the RD applied the three criteria set forth in Naval Facilities Engineering Service Center, Port Hueneme, Cal., 50 FLRA 363 (1995) (Port Hueneme), to determine whether the Activity was a successor employer of the transferred employees. [n3]  The RD found that the first and second criteria were met. With regard to the third criterion - whether an election is necessary - the RD determined that the parties agreed that IFPTE, the parent organization to IFPTE Local 10, should be certified as the exclusive representative of the transferred employees. The RD found that, combined, IFPTE Local 10 and IFPTE represented more than ninety percent of the transferred employees, and that no other labor organization expressed an interest in representing the employees. Accordingly, the RD found that an election was "unnecessary as it would be a useless exercise[,]" and thus, that the third Port Hueneme criterion for successorship was [ v61 p531 ] satisfied. RD Decision at 5. The RD thus concluded that the Activity is a "new activity[.]" Id. at 6. See, e.g., Port Hueneme, 50 FLRA at 368 (setting forth criteria for determining when "new employing entity" is a "successor"). Accordingly, she issued a new certification stating that IFPTE is the exclusive representative of the transferred employees. RD Decision at 5-6.

      After the RD issued her decision, IFPTE e-mailed the RD, stating that the RD "found and we agree that all three criteria have been met determining successorship." Application, Attachment 2 at 2. IFPTE stated, however, that the RD's finding that the Activity is a "new activity . . . appears to be inconsistent with the application of the established [successorship] criteria and your findings in this case." Id. In response, the RD sent an e-mail to the parties stating that "the elements of successorship were present but the prong three was `satisfied' only because the parties asked to combine for purposes of not having to go through the election process." Id. Thus, the RD concluded that there was no error in her decision.

III.      Positions of the Parties

A.      IFPTE's Application

      IFPTE asserts that the parties waived their right to appeal the RD's decision only to the extent that it is "based on" the parties' stipulation of facts, and that the RD's decision was not based on that stipulation. Application at 9. Specifically, IFPTE asserts that the waiver is "silent with regard to appealing legal errors by the [RD], and, equally important, clear error in stating that something is contained in the stipulation - the parties' agreement that [the Activity] is a new entity - when that statement appears nowhere in the stipulation." Id. at 11. Thus, IFPTE asserts that it did not clearly and unmistakably waive its right to file an application with regard to the RD's findings that are not based on the stipulation or the RD's legal conclusions. [n4] 

B.      Activity's Opposition

      The Activity argues that IFPTE waived its right to file an application for review.

IV.     Analysis and Conclusion

      As noted previously, before the RD, the parties stipulated, in pertinent part, that they waived "the right to file an application for review of the Decision and Order to be issued by the [RD] based upon this stipulation." Application, Attachment 1 at 5. IFPTE does not dispute that this waiver is binding, but argues that it did not clearly and unmistakably waive its right to file an application with regard to findings by the RD that are not "based on" the stipulation. Application at 9.

      The Authority has held, in other contexts, that in order to be effective, a party's waiver of its right to invoke the Authority's processes must be clear and unmistakable. See, e.g., NFFE, Local Lodge 2276, Int'l Ass'n of Machinists & Aerospace Workers, 61 FLRA 387, 389 (2005) (right to file exceptions to arbitration award); NAGE, Local R3-32, 61 FLRA 127, 134 (2005) (right to file unfair labor practice charge) (Chairman Cabaniss dissenting in part on other grounds). There is no assertion that this standard does not apply here, and we apply it. [n5] 

      Applying this standard, we find that the parties' stipulation is clear and waives the parties' right to file an application for review. In this regard, the parties waived a hearing in this case and, as a result, the RD's decision was "based on" the stipulation. Application, Attachment 1 at 5. Id. In this connection, although IFPTE asserts that it did not waive its right to challenge the RD's legal conclusions, the stipulation waives the right to file an application to the "Decision and Order . . . based upon th[e] stipulation[]" of facts, which necessarily encompasses the RD's application of the law to the stipulated facts. As a result, we reject IFPTE's argument that it did not clearly and unmistakably waive its right to file an application with regard to findings by the [ v61 p532 ] RD that are not "based on" the stipulation. Thus, we find that IFPTE waived its right to file the application for review in this case.

      For the foregoing reasons, we dismiss IFPTE's application for review.

V.     Order

      The application for review is dismissed. [n6] 



Footnote # 1 for 61 FLRA No. 98 - Authority's Decision

   Section 2422.31 of the Authority's Regulations provides, in pertinent part:

(c) Review. 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: . . .
(3) There is a genuine issue over whether the Regional Director has:
     (i) Failed to apply established law; . . .
     (iii) Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 2 for 61 FLRA No. 98 - Authority's Decision

   IFPTE represented 419 employees in one unit and 54 employees in a second unit; IFPTE, Local 10 represented 254 employees in a third unit; AFGE, Local 22 represented 52 employees in a fourth unit; and 19 employees were unrepresented. See RD Decision at 4. AFGE, Local 22 disclaimed its interest in the employees that it represented, and is no longer a party. See id. at 3 n.4.


Footnote # 3 for 61 FLRA No. 98 - Authority's Decision

   Under Port Hueneme, the Authority will find that a gaining entity is a successor, and a union retains its status as the exclusive representative of employees who are transferred to the successor, when:

(1) An entire recognized unit, or a portion thereof, is transferred and the transferred employees: (a) are in an appropriate bargaining unit, under [§] 7112(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute), after the transfer;[] and (b) constitute a majority of the employees in such unit;
(2) The gaining entity has substantially the same organizational mission as the losing entity, with the transferred employees performing substantially the same duties and functions under substantially similar working conditions in the gaining entity; and
(3) It has not been determined that an election is necessary to determine representation.

50 FLRA at 368.


Footnote # 4 for 61 FLRA No. 98 - Authority's Decision

   For the reasons discussed below, we find that IFPTE clearly and unmistakably waived its right to file an application for review. Accordingly, we do not set forth or address the parties' arguments on the merits.


Footnote # 5 for 61 FLRA No. 98 - Authority's Decision

   We note that there is no assertion or basis for concluding that this case involves individual employees' rights that may not permissibly be waived by a third party. Cf. Health Care Fin. Admin., 56 FLRA 503, 506 n.2 (2000) ("it appears clear that an agency cannot waive the Privacy Act rights of its employees regarding the release of personal information.").


Footnote # 6 for 61 FLRA No. 98 - Authority's Decision

   We note that IFPTE states that it has been prejudiced by the RD's alleged failure to find successorship because the Activity is attempting to invalidate the parties' ex