United States Department of the Army, United States Department of Defense, Fort Detrick, Maryland (Agency) and American Federation of Government Employees, Local 2484, AFL-CIO (Labor Organization/Petitioner) and American Federation of Government Employees, Local 1923, AFL-CIO (Labor Organization/Intervener)

[ v62 p407 ]

62 FLRA No. 77

UNITED STATES
DEPARTMENT OF THE ARMY
UNITED STATES
DEPARTMENT OF DEFENSE
FORT DETRICK, MARYLAND
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2484, AFL-CIO
(Labor Organization/Petitioner)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1923, AFL-CIO
(Labor Organization/Intervener)

WA-RP-05-0090

_____

DECISION AND ORDER
ON APPLICATION FOR REVIEW

May 8, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on an application for review filed by the Agency under § 2422.31 of the Authority's Regulations. Neither the Petitioner nor the Intervener filed an opposition to the Agency's application.

      The American Federation of Government Employees (AFGE), Local 2484, AFL- CIO (Local 2484) filed a petition requesting to amend its certification as exclusive representative to reflect its change in affiliation to AFGE, Local 1923, AFL-CIO (Local 1923), pursuant to § 7111(b)(2) of the Federal Service Labor-Management Relations Statute (Statute). [n1]  The Regional Director (RD) granted Local 2484's petition.

      On January 17, 2007, the Authority granted the Agency''s application for review on the ground that the application raised an issue for which there is an absence of precedent regarding whether, after a union votes to change its affiliation, there should be a time limit for filing a petition to amend its certification under § 7111(b)(2) of the Statute.

      For the reasons that follow, we conclude that the RD did not err in finding the conditions for affiliation satisfied. We further decline to amend our regulations to impose a time limit for the filing of petitions such as the one in this case. Accordingly, we dismiss the Agency's application for review.

II.     Background and RD's Decision

      In June 2003, Local 2484 sent a notice to each of its members stating that a special meeting of Local 2484's members would be held to discuss and vote on whether Local 2484 should "merge" with Local 1923. RD's Decision at 3-4. The following month, Local 2484 held a meeting of the members in its five bargaining units to discuss and vote on whether it should affiliate with Local 1923. Twenty-seven members attended the meeting. The members unanimously voted in favor of affiliation by secret ballot. See id. at 5. According to the RD, the President of Local 2484 provided undisputed testimony that "members of each of the five bargaining units at issue . . . voted." Id. at 4. More than two years later, Local 2484 filed a petition to amend its certification to reflect the change in its affiliation from Local 2484 to Local 1923. The petition, as amended at the hearing, covers the five bargaining units represented by Local 2484 at the Agency.

      Citing NLRB v. Financial Institution Employees of America, Local 1182, 475 U.S. 192 (1986) (Fin. Inst. Employees), the RD stated that a change in an exclusive representative's affiliation is an internal union matter, unless the change alters the representative's relationship with members of the bargaining unit such that a question concerning representation (QCR) is raised (i.e., a question whether a majority of the bargaining unit supports the exclusive representative). See RD's Decision at 7. The RD further stated that the Court identified two conditions that are necessary in order for an exclusive representative to change affiliation through a vote by its [ v62 p408 ] members: (1) due process (i.e., whether members of the exclusive representative have an adequate opportunity to vote on the change); and (2) evidence of substantial continuity between the exclusive representative as it existed before and as it exists after the change in affiliation (i.e., whether the procedures followed by, and the autonomy of, the exclusive representative's officers are the same before and after the change). See id. at 7-8 (citing Fin. Inst. Employees, 475 U.S. at 198-200).

      Applying these conditions, the RD found that Local 2484 had satisfied both of them. With respect to the first condition, the RD concluded that the change in affiliation satisfied due process because it was accomplished in a manner consistent with the procedural criteria for changing affiliation first stated in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974), review denied, 3 FLRC 259 (1975) (Montrose). See RD's Decision at 8. With respect to the second condition, the RD concluded that there was evidence of substantial continuity between Local 2484 as it existed before, and as it exists after, the change in affiliation. Id. at 9-10. In this regard, the RD found that there was no material change in the autonomy or control of the day-to-day operations of Local 2484. The only change cited by the RD was the elimination of the position of President, Local 2484. The RD further found that the officers of Local 2484 "have retained their authority and discretion to deal with management concerning matters affecting employees in each unit" and serve on the Executive Board of Local 1923. Id. at 5.

      The RD also rejected the Agency's argument that the petition filed by Local 2484 was untimely because it was filed more than two years after the vote to change affiliation. Based on the record, the RD found that there was no evidence that a QCR existed or that a reasonable doubt existed about the majority status of Local 1923 or any of the affected bargaining units. In so finding, the RD acknowledged that the petition had been filed more than two years after the members voted to change affiliation and that there had been "some unspecified amount of turnover" in the bargaining units since the vote. Id. at 10. The RD further rejected the Agency's reliance on the Statute, the Authority's Regulations, and the Office of General Counsel Representation Proceedings Case Handling Manual in support of its argument that the petition was untimely.

      Based on his findings, the RD concluded that Local 2484 satisfied the conditions necessary to affiliate with Local 1923. Accordingly, the RD granted Local 2484's petition to amend its certification.

III.     Agency's Application for Review

      According to the Agency, the Authority should rule that a petition seeking to amend a certification under § 7111(b)(2) must be filed within sixty calendar days of the date of the vote to change affiliation in order to ensure that the wishes of members of the exclusive representative are accurately reflected. See Application for Review at 2-3. Noting that there is an absence of statutory or regulatory time frames for these filings, the Agency asserts that the Authority should look to "similar mandates" in other sections of the Statute, such as §§ 7117(c) and 7118(a)(4). [n2]  Id. at 9.

      In support of its position that a sixty-day time limit is necessary, the Agency contends that the petition filed by Local 2484 to amend its certification does not reflect the current wishes of the members of Local 2484 because it was filed more than two years after the members voted to change affiliation. See id. at 2, 8. In this regard, the Agency asserts that in two of the five units covered by the petition, only "a very small number" of Local 2484 members participated in the vote. Id. at 2-3 (emphasis omitted). The Agency further contends that, after the vote to change affiliation, petitions were filed seeking representation elections among employees in bargaining units represented by Local 2484. Specifically, the Agency claims that after the hearing in the present case, two representation petitions were filed with the Authority that "seem to indicate a strong opposition to continued representation by AFGE." Id. at 8 n.6. In this regard, the Agency notes that the petition in Case No.WA-RP-06-0083, filed by the Fraternal Order of Police, Maryland Lodge, F6, seeks an election to determine whether the employees in a bargaining unit wish to be represented by that union. See id. at 6. The Agency also notes that the petition in Case No. WA-RP-06-0081, filed by an individual, seeks an election to determine whether employees in another bargaining unit continue to desire representation by Local 2484. See id. In addition, the Agency states that some bargaining unit members who work in a geographically separate location were "switched from representation" by Local 2484 to representation by another union. See id. at 7.

      [ v62 p409 ] Further, the Agency petitions the Authority to amend its regulations pursuant to 5 C.F.R. § 2429.28. [n3]  Specifically, the Agency requests that the Authority amend § 2422.5 to require the filing of a petition under § 7111(b)(1) or (b)(2) of the Statute within sixty calendar days of the date of the vote to change affiliation or showing of interest. See id. at 11-12. The Agency asserts that this change is necessary to ensure that the wishes of the exclusive representative's members are accurately reflected. See id. at 8.

IV.     Analysis and Conclusions

A.     The RD did not err in finding that Local 2484's petition was timely.

      The procedures for filing a petition to amend an existing certification of an exclusive representative are set forth in § 7111(b)(2) of the Statute. Under that section, the Authority is required to investigate the petition and, if it finds that a QCR exists, then the Authority is required to conduct an election on the question, as appropriate. See 5 U.S.C. § 7111(b)(2). Neither § 7111(b)(2), nor the implementing regulations set forth in 5 C.F.R. § 2429.28, set forth a time limit for filing a petition to amend a certification of an exclusive representative.  [n4] 

      The RD rejected the Agency's argument that the petition filed by Local 2484 was untimely because it was filed more than two years after the vote to change affiliation. Although the Agency concedes that there is no statutory or regulatory time limit for filing a petition to amend a certification to reflect a change in affiliation, see Application for Review at 9, the Agency argues that the Authority should rule that such a petition must be filed within sixty calendar days of the date of the vote to change affiliation to ensure that the wishes of the members of the exclusive representative are accurately reflected when the petition is filed. In support, the Agency argues that, in the absence of a statutory or regulatory time limit for filing a petition to amend a certification to reflect a change in affiliation under § 7111(b)(2), the Authority should look to "similar mandates" in other sections of the Statute, such as the fifteen-day time limit in § 7117(c)(2)(A) for filing negotiability appeals and the six-month time limit in § 7118(a)(4)(A) for filing unfair labor practice (ULP) charges. Id.

      Contrary to the Agency's argument, the fact that Congress included time limits for filing ULP charges and negotiability petitions, but did not include a time limit for filing petitions to amend a certification under § 7111(b)(2), supports a presumption that Congress did not intend a time limit for that filing. If, as the Agency maintains, Congress intended a time limit for filing a petition to amend a certification under § 7111(b)(2), then Congress could have easily made that clear. See BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994) (citing City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 338 (1994)) ("[I]t is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another[.]"). Consequently, the statutory provisions relied on by the Agency undermine, rather than support, its position.

      Further, the absence of a time limit in § 7111(b)(2) is consistent with the nature of the matters at issue, which are not time-sensitive. In this regard, § 7111(b)(2) requires an inquiry by the Authority that focuses on whether a QCR exists at the time of the investigation. Consistent with this statutory scheme, the Authority's practice in representation cases requires an assessment of the record based on the circumstances existing at the time of the hearing. See, e.g., United States Dep't of the Air Force, 82nd Training Wing, 361st Training Squadron, Aberdeen Proving Ground, Md., 57 FLRA 154, 157 (2001) (Authority bases unit determinations on duties actually assigned to employees at the time of a representation hearing, rather than on plans to assign the duties in the future); Def. Logistics Agency, Def. Supply Ctr. Columbus, Columbus, Ohio, 53 FLRA 1114, 1123 (1998) (Authority does not require that the impact of job changes on bargaining units must be immediately raised or waived); Dep't of the Army, Headquarters, Fort Dix, Fort Dix, N.J., 53 FLRA 287, 295 (1997) (bargaining unit certifications do not become stale over time if they continue to accurately describe the organization and employees). In contrast, the time limits set forth in § 7117(c)(2)(A) for negotiability appeals and in § 7118(a)(4)(A) for ULP charges reflect that those procedures are time-sensitive and should be timely resolved. See, e.g., Air Force Flight Test Ctr. Edwards Air Force Base, Cal., 55 FLRA 116, [ v62 p410 ] 120 (1999) (intent of § 7118(a)(4)(A) is to foster stable collective bargaining relationships and prevent the litigation of stale charges); AFGE, Local 3407, 41 FLRA 265, 270 (1991) (citing NFFE, Local 1167 v. FLRA, 681 F.2d 886, 890 (D.C. Cir. 1982)) (§ 7117(c)(2) "sets rigid time limits for filing a union appeal, an agency explanatory statement and a union response" which "must be strictly observed"). Unlike negotiability appeals and ULP charges, the procedures to file a petition to amend a certification are not time-sensitive and require an inquiry by the Authority that focuses on the existing circumstances at the time of the investigation.

      In support of its position that a time limit is necessary, the Agency also contends that the petition to amend the certification filed by Local 2484 does not reflect the current wishes of the members of Local 2484 and notes that, after the vote to change affiliation, petitions were filed to seek representation elections among employees in bargaining units represented by Local 2484. However, all of these issues may be raised and resolved in another § 7111(b)(2) proceeding, as they relate to the issue of whether a QCR exists.

      Here, the RD investigated and addressed the Agency''s claim that the employees no longer wished to be represented by Local 2484. Although the RD acknowledged that the petition was filed more than two years after the members voted to change affiliation and that there has been some turnover in the bargaining units since the vote, the RD nonetheless concluded that there was no evidence either that a QCR existed, or that a reasonable doubt existed about the majority status of Local 1923 or any of the affected bargaining units. See RD's Decision at 10. The Agency does not argue that the RD erred in this regard. Thus, the Agency has not demonstrated that a time limit is necessary for filing a petition under § 7111(b)(2). [n5] 

      Therefore, consistent with the discussion above, we conclude that the Agency has failed to establish that the RD erred in failing to dismiss Local 2484's petition as untimely. [n6] 

B.     Amendment of the Authority's Regulations to require the filing of a petition under § 7111(b)(1) or (b)(2) within sixty calendar days of the date of the election or showing of interest is not warranted.

      The Agency also petitioned the Authority to amend its regulations pursuant to 5 C.F.R. § 2429.28. Specifically, the Agency seeks to amend the 5 C.F.R. § 2422.5 to require the filing of a petition under § 7111(b)(1) or (b)(2) within sixty calendar days of the date of the election or showing of interest.

      For the same reasons that we do not adopt a rule prescribing a time limit to file a petition to amend a certification after a vote to change affiliation, we decline to amend the Authority's Regulations set forth in 5 C.F.R. § 2422.5 to require the filing of a petition under § 7111(b)(1) or (b)(2) within sixty calendar days of the date of the election or showing of interest. In sum, the Agency's concern is addressed by the current practice, which provides for an election where a QCR is present. Consequently, we decline to amend 5 C.F.R. § 2422.5.

V.     Order

      The application for review is denied.



Footnote # 1 for 62 FLRA No. 77 - Authority's Decision

   In relevant part, § 7111(b)(2) of the Statute provides:

If a petition is filed with the Authority . . . by any person seeking . . . an amendment