Department of the Air Force, Headquarters, 102nd Fighter Interceptor Wing, Massachusetts Air National Guard, Otis Air Force Base (Activity) and National Association of Government Employees, Local R1-191 (Incumbent/Intervenor) and International Association of Fire Fighters, Local F-196, Washington, D.C. (Petitioner) 

 1 FLRA No. 90
 
 DEPARTMENT OF THE AIR FORCE, HEADQUARTERS,
 102ND FIGHTER INTERCEPTOR WING, MASSACHUSETTS
 AIR NATIONAL GUARD, OTIS AIR FORCE BASE
 Activity
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R1-191
 Incumbent/Intervenor
 
 and
 
 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,
 LOCAL F-196, WASHINGTON, D.C.
 Petitioner
 
                                            Assistant Secretary
                                            Case No. 31-11654(RO)
 
                            DECISION AND ORDER
 
    UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
 AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ROBERT BAILEY.
 THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
 PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11494, AS AMENDED, IN A
 MATTER SUCH AS HERE, WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304
 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF
 FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT.  1215).
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
 THE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-196, WASHINGTON,
 D.C., (PETITIONER), AND THE NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R1-191 (INCUMBENT), THE FEDERAL LABOR RELATIONS
 AUTHORITY FINDS:
 
    1.  THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
 EMPLOYEES OF THE ACTIVITY.
 
    2.  THE PETITIONER SEEKS AN ELECTION IN THE UNIT CONSISTING OF ALL
 GENERAL SCHEDULE FIREFIGHTERS, CREW CHIEFS AND FIRE INSPECTORS EMPLOYED
 BY THE OTIS AIR FORCE BASE, EXCLUDING SUPERVISORS, PROFESSIONAL
 EMPLOYEES, MANAGEMENT OFFICIALS, GUARDS AND EMPLOYEES ENGAGED IN FEDERAL
 PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.  THE INCUMBENT
 IS THE CURRENT EXCLUSIVE REPRESENTATIVE AND HAS A COLLECTIVE BARGAINING
 AGREEMENT WITH THE ACTIVITY FOR THE UNIT SOUGHT BY THE PETITIONER.
 
    WHEREAS THE PETITIONER ARGUES THAT THE INCUMBENT, FOR ALL INTENTS AND
 PURPOSES, IS DEFUNCT AND THE PETITION HEREIN SHOULD BE PROCESSED, THE
 INCUMBENT CONTENDS THAT IT IS NOT DEFUNCT, AND THE PETITION SHOULD BE
 DISMISSED AS BEING UNTIMELY FILED DURING THE CERTIFICATION BAR PERIOD.
 
    THE INCUMBENT WAS RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE OF THE
 EMPLOYEES OF THE FIRE DEPARTMENT OF THE ACTIVITY IN 1969 AND A
 COLLECTIVE BARGAINING AGREEMENT WAS SIGNED BY THE PARTIES ON MAY 17,
 1973, TO RUN FOR THREE YEARS.  ON MARCH 11, 1976, THE PETITIONER FILED A
 TIMELY REPRESENTATION PETITION FOR THE SUBJECT BARGAINING UNIT WHICH
 RESULTED IN AN ELECTION AND CERTIFICATION OF THE INCUMBENT ON JUNE 10,
 1977, AS THE EXCLUSIVE REPRESENTATIVE OF THE SUBJECT BARGAINING UNIT.
 SUBSEQUENT THERETO, A FULL SLATE OF OFFICERS WAS ELECTED BY THE
 INCUMBENT WHICH MET IN THE FALL OF 1977, WITH JACK MCCARTHY, NATIONAL
 REPRESENTATIVE IN PREPARATION FOR BARGAINING WITH THE ACTIVITY.  AT THAT
 TIME, CERTAIN INTERNAL PROBLEMS AROSE WITHIN THE INCUMBENT LABOR
 ORGANIZATION WHICH RESULTED IN THE RESIGNATION OF THE PRESIDENT OF THE
 INCUMBENT IN NOVEMBER 1977, AND THE APPOINTMENT OF THE VICE PRESIDENT AS
 ACTING PRESIDENT.  CONTRACT NEGOTIATIONS BETWEEN THE PARTIES COMMENCED
 ON FEBRUARY 23, 1978, WITH MCCARTHY AND THE ACTING PRESIDENT
 REPRESENTING THE INCUMBENT.  HOWEVER, ON THE FOLLOWING DAY THE ACTING
 PRESIDENT INFORMED THE ACTIVITY'S CIVILIAN PERSONNEL OFFICER THAT THE
 INCUMBENT WISHED TO POSTPONE FURTHER NEGOTIATIONS BECAUSE OF INTERNAL
 UNION PROBLEMS, AND BECAUSE THE EMPLOYEES WERE CONTEMPLATING ELECTING
 ANOTHER UNION TO REPRESENT THE UNIT.  ON MARCH 1, 1978, THE ACTING
 PRESIDENT INFORMED THE NATIONAL OFFICE OF THE NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, (NAGE) THAT THE 24 EMPLOYEES HAD TERMINATED THEIR
 UNION DUES WITHHOLDING AS OF THE FIRST PAY PERIOD IN MARCH, AND THAT THE
 EMPLOYEES WERE SEEKING A NEW REPRESENTATIVE.  /1/ THEREAFTER, ON MARCH
 6, 1978, THE INCUMBETNT'S BANK ACCOUNT WAS CLOSED AND THE MONEY
 DISBURSED EQUALLY TO THE MEMBERS.
 
    BY SEPARATE LETTERS DATED MARCH 9, 1978, NAGE INFORMED THE ACTING
 PRESIDENT THAT THE INCUMBENT WAS BEING PLACED UNDER THE TRUSTEESHIP OF
 MCCARTHY, AND FURTHER INFORMED THE ACTIVITY OF THE TRUSTEESHIP AND THAT
 THE OFFICERS HAD BEEN SUSPENDED FROM THEIR LOCAL OFFICES.  THE FOLLOWING
 DAY BY LETTER, NAGE INFORMED THE ACTING PRESIDENT THAT HE HAD BEEN
 SUSPENDED FROM OFFICE.  NEVERTHELESS, AT THE END OF MARCH 1978, THE
 ACTING PRESIDENT SENT THE ACTIVITY A LETTER STATING THAT THE INCUMBENT
 HAD NO MEMBERS, DID NOT COLLECT DUES, AND HAD CEASED TO FUNCTION, AND
 THAT THE INCUMBENT WAS DEFUNCT AND HAD NO DESIRE TO REPRESENT THE UNIT
 OF FIREFIGHTERS.
 
    DESPITE ALL THAT WAS TAKING PLACE, TRUSTEE MCCARTHY AND THE ACTIVITY
 CONTINUED TO NEGOTIATE, AND, ON APRIL 7, 1978, A COLLECTIVE BARGAINING
 AGREEMENT WAS SIGNED BY MCCARTHY AND THE ACTIVITY.  SINCE THAT TIME, THE
 INCUMBENT HAS BEEN ADMINISTERED BY TRUSTEE MCCARTHY AND A NATIONAL
 REPRESENTATIVE, AND THEY HAVE REPEATED ON NUMEROUS OCCASIONS THEIR
 ABILITY AND WILLINGNESS TO REPRESENT THE BARGAINING UNIT AND ADMINISTER
 THE COLLECTIVE BARGAINING AGREEMENT.
 
    BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT THE INCUMBENT WAS
 NOT "DEFUNCT" AT THE TIME THE SUBJECT PETITION WAS FILED.  AN EXCLUSIVE
 REPRESENTATIVE IS DEFUNCT IF IT IS UNABLE OR UNWILLING TO REPRESENT THE
 EMPLOYEES, AND MERE TEMPORARY INABILITY TO FUNCTION DOES NOT CONSTITUTE
 DEFUNCTNESS;  NOR IS THE LOSS OF ALL MEMBERS THE EQUIVALENT OF
 DEFUNCTNESS IF THE REPRESENTATIVE OTHERWISE CONTINUES IN EXISTENCE AND
 IS WILLING AND ABLE TO REPRESENT THE EMPLOYEES.  /2/ IN THIS REGARD, THE
 EVIDENCE DOES NOT ESTABLISH THAT AT ANY TIME MATERIAL HEREIN, THE
 INCUMBENT WAS UNWILLING OR UNABLE TO REPRESENT THE UNIT EMPLOYEES.
 THUS, THE RECORD REVEALS THE EXISTENCE OF A NEW COLLECTIVE BARGAINING
 AGREEMENT WHICH HAD BEEN DULY NEGOTIATED BY THE INCUMBENT AND THE
 ACTIVITY, AND THAT THE INCUMBENT IS CURRENTLY BEING ADMINISTERED BY AN
 APPOINTED TRUSTEE AND A NATIONAL REPRESENTATIVE, WHO HAVE ASSERTED ON
 NUMEROUS OCCASIONS THEIR ABILITY AND WILLINGNESS TO REPRESENT THE
 BARGAINING UNIT AND ADMINISTER THE COLLECTIVE BARGAINING AGREEMENT.
 MOREOVER, IT HAS BEEN HELD THAT A DEVICE SUCH AS THAT INVOLVED IN THE
 INSTANT CASE, WHICH WOULD PERMIT UNIT EMPLOYEE MEMBERS OF AN INCUMBENT
 LABOR ORGANIZATION TO FACILITATE "A RAID" BY ANOTHER LABOR ORGANIZATION
 LESS THAN 12 MONTHS AFTER THE INCUMBENT HAD BEEN CERTIFIED WOULD CREATE
 UNNECESSARY INSTABILITY AND UNCERTAINTY AND WOULD, THEREFORE, BE
 INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER WHERE THE
 EVIDENCE DOES NOT ESTABLISH THAT THE INCUMBENT LABOR ORGANIZATION IS, IN
 FACT, DEFUNCT.  /3/
 
    UNDER THE ABOVE CIRCUMSTANCES, AND NOTING THAT THE PETITIONER'S
 PETITION WAS FILED WITHIN 12 MONTHS OF THE INCUMBENT'S CERTIFICATION AS
 THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN THE BARGAINING UNIT
 SOUGHT HEREIN, THE AUTHORITY FINDS THAT THE SUBJECT PETITION WAS
 UNTIMELY FILED UNDER THE PROVISIONS OF 202.3(B) OF THE ASSISTANT
 SECRETARY'S REGULATIONS, /4/ AND, ACCORDINGLY, THE PETITION WILL BE
 DISMISSED.  /5/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE PETITION IN ASSISTANT SECRETARY CASE
 NO. 31-11654(RO) BE, AND HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 31, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ EARLIER, ON FEBRUARY 24, 1978, A DOCUMENT ENTITLED "RESIGNATION
 FROM NAGE, LOCAL R1-191" WAS SIGNED BY 24 OF 25 UNIT MEMBERS.
 
    /2/ SEE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
 TRANSPORTATION, 2 A/SLMR 340, A/SLMR 173(1974).
 
    /3/ DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, PUBLIC HEALTH
 SERVICE INDIAN HOSPITAL, CLAREMORE, OKLAHOMA, 5 A/SLMR 640, A/SLMR
 568(1975).
 
    /4/ SECTION 202.3(B) OF THE ASSISTANT SECRETARY'S REGULATIONS
 PROVIDES:  "WHEN THERE IS A CERTIFIED EXCLUSIVE REPRESENTATIVE OF THE
 EMPLOYEES, A PETITION WILL NOT BE CONSIDERED TIMELY IF FILED WITHIN
 TWELVE (12) MONTHS AFTER THE CERTIFICATION AS THE EXCLUSIVE
 REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT . . ."
 
    /5/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE ORDER.