Pension Benefit Guaranty Corporation (Agency) and Independent Union of Pension Employees for Democracy and Justice (Petitioner/Labor Organization) and International Federation of Professional and Technical Engineers, AFL-CIO, Union of Pension Employees (Incumbent Union)

65 FLRA No. 136                                                                 
(Petitioner/Labor Organization)
(Incumbent Union)
March 25, 2011
Before the Authority: Carol Waller Pope, Chairman, and
Thomas M. Beck and Ernest DuBester, Members
I.          Statement of the Case
                This case is before the Authority on an application for review (application) filed by the Petitioner under § 2422.31(c) of the Authority’s Regulations.[1] The Incumbent Union (UPE) filed an opposition to the application.[2]
The Regional Director (RD) determined that UPE is the incumbent exclusive representative of the bargaining unit at issue in the petition for an election and thus, under § 2422.8(d) of the Authority’s Regulations, had a right to participate in the election.[3] For the reasons that follow, we deny the application.
II.        Background and RD’s Decision
            On March 4, 2009, an RD of the Authority certified UPE as the exclusive representative of the bargaining unit at issue here. RD’s Decision at 5 (citing Certification of Representative in Case No. WA-RP-09-0013). In the proceeding at issue here, the Petitioner filed a petition under § 7111(b) of the Federal Service Labor-Management Relations Statute (the Statute), requesting an election to determine whether employees of the Agency still wished to be represented by UPE or wished, instead, to be represented by the Petitioner. Id. at 1. Subsequently, the Petitioner filed a motion asserting that UPE is not automatically entitled to participate in this proceeding as the incumbent exclusive representative because it is not a “labor organization” within the meaning of § 7103(a)(4) of the Statute.[4] Id. at 2. 
As relevant here, the RD found that, to meet the definition of “labor organization” under § 7103(a)(4), the organization must be composed of employees who participate and pay dues. Id. at 8. In this connection, the RD determined that it was not disputed that, in June 2010, UPE adopted a constitution that included a dues structure, and that dues withholding became effective August 15, 2010. Id. at 7. She also found it undisputed that, since that time, the Agency has been withholding dues payments of bargaining unit employees and transmitting the dues to UPE. Id. at 7-8. In addition, the RD stated that the Authority has found that a newly formed organization may be a labor organization even before it has collected dues. Id. at 9 (citing U.S. Dep’t of Veterans Affairs, Wash., D.C. and U.S. Dep’t of Veterans Affairs, Westside Med. Ctr., Chi., Ill., 35 FLRA 172, 178 (1990) (Veterans Affairs)). Accordingly, the RD concluded that employees participate in, and pay dues to, UPE and that, consequently, UPE is a labor organization within the meaning of § 7103(a)(4). Id. at 9-10.
            Further, the RD stated that, under § 2422.8(d) of the Authority’s Regulations, an incumbent exclusive representative is a party if any of the employees represented by the exclusive representative are affected by issues raised in a representation petition, and she found that employees represented by UPE are affected by the petition in this case. Id. at 10. As UPE is the incumbent exclusive representative, and in view of her conclusion that UPE is a labor organization under the Statute, the RD determined that UPE had a right under § 2422.8(d) to participate in the election. Id. at 10‑11.
III.       Positions of the Parties
            A.        Petitioner
The Petitioner contends that review is warranted because the RD failed to apply established law.  Application at 2-3. Specifically, the Petitioner asserts that § 7103(a)(4) and the holding in Veterans Affairs require that UPE must actually have collected dues money no later than the date of its certification to qualify as a labor organization and that there is no exception for a “newly formed” organization. Id. at 21‑22, 29. Consequently, the Petitioner asserts that the RD failed to properly apply § 7103(a)(4) in concluding that UPE qualified as a labor organization. Id. at 3.
The Petitioner also contends that review is warranted because the RD committed clear and prejudicial errors concerning substantial factual matters. Specifically, the Petitioner asserts that the RD erred in her application of Veterans Affairs because UPE did not have a dues structure and did not intend (or had only a speculative intent) to collect dues at relevant times, “including in November 2008 when it filed its representational petition with the [Authority], in February 2009 when the [Authority] conducted an election, and in March 2009 when UPE was certified.” Id. at 35-38, 42-43. In addition, the Petitioner claims that the reference to a “newly-formed organization” in Veterans Affairs, 35 FLRA at 177, does not excuse the delay in actual dues collection. Application at 42. The Petitioner further alleges that the constitution adopted in June 2010 and its dues structure “are not valid or legitimate[,]” and that the Department of Labor is investigating issues related to this constitution. Id. at 37 & 38 n.22. 
The Petitioner also contends that the RD committed clear and prejudicial errors as to substantial factual matters concerning the representation petition filed in November 2008 and UPE’s affiliation with IFPTE. The Petitioner alleges that IFPTE, and not UPE, filed the petition and that the petition contained false information on UPE’s affiliation with IFPTE. Id. at 30-34.
In addition, the Petitioner argues that review is warranted because there is an absence of precedent regarding whether a group can constitute a “labor organization” by simply having a dues structure and a speculative intent to collect dues, and regarding whether there is an exception for a newly formed organization. Id. at 21-22.
B.        UPE
UPE contends that the application should be denied because the RD correctly applied established law to undisputed facts and correctly concluded that UPE is a “labor organization” within the meaning of § 7103(a)(4). Opp’n at 2. In this regard, UPE argues that the RD correctly found that, under § 7103(a)(4) and Veterans Affairs, UPE is a labor organization because it is undisputed that, in August 2010, the Agency began withholding dues and transmitting them to UPE. Id. at 6. For these reasons, UPE also contends that the RD’s decision does not raise an issue for which there is an absence of precedent. Id. at 10-11. UPE further contends that the Petitioner fails to demonstrate that the RD committed any errors concerning any substantial factual matters because the RD identified and properly relied on undisputed facts in concluding that UPE is a labor organization. Id. at 15-18.
IV.       Analysis and Conclusions[5]
As relevant here, § 2422.8(d) provides: “An incumbent exclusive representative
. . . will be considered a party in any representation proceeding raising issues that affect employees the incumbent represents[.]” In turn, § 7103(a)(16)(A) of the Statute pertinently defines “exclusive representative” as a “labor organization . . . which is certified as the exclusive representative[.]” There is no dispute that UPE is certified as the exclusive representative of the bargaining unit employees at issue in this proceeding, or that this proceeding affects these employees. There also is no dispute that, at the time of the RD’s decision, UPE met the definition of labor organization. Consequently, there can be no dispute that, at the time of the RD’s decision at issue here, UPE also met the definition of exclusive representative and constituted “[a]n incumbent exclusive representative” within the meaning of § 2422.8(d). Thus, under § 2422.8(d), UPE is entitled to be considered a party in this proceeding and to participate in a