Department of Transportation, Federal Aviation Administration (Activity) and Professional Airways Systems Specialists (Petitioner); Department of Transportation, Federal Aviation Administration, Airways Facility Sector, Tampa, Florida (Activity) and Professional Airways Systems Specialists (Petitioner)
[ v04 p722 ]
04:0722(97)RO
The decision of the Authority follows:
4 FLRA No. 97
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION
(Activity)
and
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
(Petitioner)
Case No. 3-RO-41
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
AIRWAYS FACILITY SECTOR,
TAMPA, FLORIDA
(Activity)
and
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
(Petitioner)
Case No. 34-RO-27
ORDER REMANDING CASES
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S ORDER TRANSFERRING CASES IN ACCORDANCE WITH SECTIONS
2429.1(B) AND 2429.4 OF THE AUTHORITY'S RULES AND REGULATIONS, WHICH WAS
RECEIVED BY THE AUTHORITY ON SEPTEMBER 10, 1980.
THE QUESTIONS POSED BY THE REGIONAL DIRECTOR IN HIS ORDER
TRANSFERRING CASES ARE AS FOLLOWS:
1. WHICH OF THE AUTHORITY'S RULES AND REGULATIONS (I.E., INTERIM
RULES OR FINAL RULES)
APPLY TO THE CONTINUED PROCESSING OF THE RO PETITIONS IN CASES
3-RO-41 AND 34-RO-27, BOTH
FILED UNDER THE INTERIM RULES, UPON THE ISSUANCE OF THE CERTIFICATION
OF CONSOLIDATION OF
UNITS IN CASE 3-UC-9?
2. ASSUMING IN ITEM 1 ABOVE THAT THE FINAL RULES AND REGULATIONS
APPLY, WHAT DATE(S)
SHOULD BE UTILIZED TO CHECK THE RO PETITIONER'S SHOW OF INTEREST IN
THE CONSOLIDATED UNIT?
THE RECORD BEFORE THE AUTHORITY INDICATES THAT ON JULY 21, 1979, THE
FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION (FASTA)
AFFILIATED WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE)
FILED A PETITION FOR CONSOLIDATION OF UNITS (3-CU-9). IN ITS PETITION,
FASTA/NAGE SEEKS TO CONSOLIDATE INTO ITS EXISTING NATIONWIDE UNIT OF
SOME 8200 EMPLOYEES OF THE AIRWAYS FACILITIES DIVISION, LOCATED IN THE
REGIONS OF THE FEDERAL AVIATION ADMINISTRATION (FAA), /1/ TWO ADDITIONAL
UNITS FOR WHICH FASTA/NAGE HOLDS EXCLUSIVE RECOGNITION: A UNIT OF 130
GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES OF FAA'S AIRWAYS FACILITY
SECTOR, TAMPA, FLORIDA, IN WHICH UNIT FASTA/NAGE WAS CERTIFIED IN
FEBRUARY 1977; AND A UNIT OF OVER 400 GENERAL SCHEDULE AND WAGE GRADE
EMPLOYEES ASSIGNED TO THE EASTERN REGIONAL OFFICE, WHICH UNIT WAS
CERTIFIED IN APRIL 1971. THE RECORD ALSO SHOWS THAT A COLLECTIVE
BARGAINING AGREEMENT WAS ENTERED INTO BY FASTA/NAGE AND THE FAA COVERING
BOTH THE NATIONWIDE UNIT AND THE TAMPA UNIT ON DECEMBER 1, 1977, WITH A
TWO-YEAR DURATION. THE UNIT OF EASTERN REGIONAL EMPLOYEES WAS COVERED
BY A SEPARATE COLLECTIVE BARGAINING AGREEMENT WHICH BECAME EFFECTIVE ON
MAY 21, 1975, FOR A TWO-YEAR PERIOD, AND WHICH PROVIDED FOR AUTOMATIC
RENEWAL ANNUALLY THEREAFTER.
IN AUGUST 1979, THE PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS (PASS)
FILED TIMELY REPRESENTATION PETITIONS IN THE NATIONWIDE AND TAMPA UNITS
REPRESENTED BY FASTA/NAGE: 3-RO-41, SEEKING THE NATIONWIDE UNIT, WHICH
WAS FILED ON AUGUST 21, 1979, DURING THE 60-105 DAY OPEN PERIOD PRIOR TO
THE EXPIRATION OF THE AGREEMENT COVERING THE NATIONWIDE UNIT; AND
4-RO-27, SEEKING THE UNIT OF TAMPA, FLORIDA, EMPLOYEES ALSO COVERED BY
THE NATIONWIDE AGREEMENT, WHICH PETITION WAS FILED ON AUGUST 20, 1979,
DURING THE OPEN PERIOD OF THE AGREEMENT. BY ORDER DATED AUGUST 19,
1980, CASE NO. 4-RO-27 WAS TRANSFERRED FROM THE ATLANTA REGIONAL OFFICE
TO THE WASHINGTON REGIONAL OFFICE AND DOCKETED AS CASE NO. 34-RO-27.
THE ABOVE-MENTIONED UC PETITION WAS FILED UNDER THE AUTHORITY'S
TRANSITION RULES, AND THE RO PETITIONS WERE FILED WHEN THE AUTEORITY'S
INTERIM RULES WERE IN EFFECT. /2/ SECTION 2422.3(J) OF THE INTERIM
RULES, LIKE THE RELEVANT RULES AND PRACTICES UNDER THE TRANSITION RULES,
/3/ PROVIDED AS FOLLOWS:
SEC. 2422.3. TIMELINESS OF PETITION
(J) A PETITION FILED PURSUANT TO SEC. 2422.2(A) AND (B) SEEKING AN
ELECTION IN ANY EXISTING
EXCLUSIVELY RECOGNIZED UNIT COVERED BY A PENDING PETITION TO
CONSOLIDATE EXISTING EXCLUSIVELY
RECOGNIZED UNITS MUST BE FILED TIMELY IN ACCORDANCE WITH THE
REQUIREMENTS SET FORTH IN THIS
SECTION: PROVIDED, HOWEVER, THAT SUCH PETITION WILL BE DISMISSED IF
A CERTIFICATION ON
CONSOLIDATION OF UNITS IS ISSUED.
ON JANUARY 28, 1980, DURING THE PROCESSING OF THE UC PETITION, THE
AUTHORITY'S FINAL RULES AND REGULATIONS (5 C.F.R. 2400.1-2471.12 (1980))
TOOK EFFECT. /4/ SECTION 2422.3(J) WAS REVISED THEREIN AND PROVIDES AS
FOLLOWS:
SEC. 2422.3. TIMELINESS OF PETITION
(J)(1) A PETITION FILED PURSUANT TO SEC. 2422.2(A) AND (B) SEEKING
ELECTION IN ANY EXISTING
EXCLUSIVELY RECOGNIZED UNIT COVERED BY A PENDING PETITION TO
CONSOLIDATE EXISTING EXCLUSIVELY
RECOGNIZED UNITS MUST BE FILED TIMELY IN ACCORDANCE WITH THE
REQUIREMENTS SET FORTH IN THIS
SECTION. SUCH PETITION FILED PURSUANT TO SEC. 2422.2(A) AND (B) WILL
BE HELD IN ABEYANCE
PENDING THE PROCESSING OF THE PETITION TO CONSOLIDATE.
(2) UPON THE ISSUANCE OF A CERTIFICATION ON CONSOLIDATION OF UNITS,
THE PETITIONER UNDER
SEC. 2422.2(A) AND (B) SHALL BE GIVEN THIRTY (30) DAYS FROM THE
ISSUANCE OF THE CERTIFICATION
TO SUBMIT A SUFFICIENT SHOWING OF INTEREST IN SUCH CONSOLIDATED UNIT.
UPON THE TIMELY
SUBMISSION OF SUCH ADEQUATE SHOWING OF INTEREST, PETITIONS FILED
PURSUANT TO SEC. 2422.2(A)
AND (B) WILL BE PROCESSED, AND AN APPROPRIATE CERTIFICATION WILL
ISSUE. UNDER THE FINAL RULES, THEREFORE, NO LONGER WILL TIMELY FILED RO
PETITIONS BE AUTOMATICALLY DISMISSED UPON THE ISSUANCE OF A
CERTIFICATION IN THE CONSOLIDATED UNIT, AS WAS REQUIRED UNDER THE
INTERIM RULES. INSTEAD, A PETITIONER WILL HAVE AN OPPORTUNITY TO
COMPETE FOR THE CONSOLIDATED UNIT PROVIDING IT TIMELY SUBMITS A
SUFFICIENT SHOWING OF INTEREST IN THE CONSOLIDATED UNIT. WE TURN THEN
TO THE QUESTIONS RAISED BY THE REGIONAL DIRECTOR.
IN RESPONSE TO THE FIRST QUESTION, NAMELY: WHETHER UPON THE ISSUANCE
OF THE CERTIFICATION OF CONSOLIDATION OF UNITS IN CASE NO. 3-UC-9, THE
INTERIM OR THE FINAL RULES APPLY TO THE RO PETITIONS FILED IN THE
INSTANT CASES, THE AUTHORITY FINDS, FOR THE REASONS SET FORTH BELOW,
THAT SECTION 2422.3(J) OF THE FINAL RULES IS APPLICABLE IN THE PRESENT
CASES.
AT THE OUTSET, IT MUST BE EMPHASIZED THAT WE ARE HERE CONCERNED WITH
THE APPLICATION OF THE AUTHORITY'S FINAL PROCEDURAL RULES TO CASES
PENDING WHEN THE RULES BECAME EFFECTIVE. THE COURTS HAVE LONG
RECOGNIZED THAT SUCH PROCEDURAL RULES APPLY TO PENDING ACTIONS, ABSENT
ANY SHOWING OF HARDSHIP OR INJUSTICE IN PARTICULAR CASES. FOR EXAMPLE,
THE EMINENT JUDGE LEARNED HAND STATED IN THE UNITED WALL PAPER CASE:
THERE CAN BE NO DOUBT THAT THE AMENDMENT (TO COURT RULES) APPLIED TO
PENDING CASES
. . . . IT IS THE GENERAL DOCTRINE THAT AMENDMENTS TOUCHING ONLY
PROCEDURE APPLY TO PENDING ACTIONS . . . (CITATIONS OMITTED.) UNITED
WALL PAPER FACTORIES, INC. V. HODGES, 70 F2D 243, 244 (2D CIR. 1934).
SEE ALSO, E.G., LANG V. BERGER, 427 F.SUPP. 204, 213 (S.D.N.Y.
1977); AND KEYSTONE MOTOR EXPRESS, INC. V. U.S., 228 F.SUPP. 793,
799-800 (THREE -JUDGE COURT) (S.D.W.VA. 1964).
THIS PRINCIPLE WAS ALSO ADOPTED BY THE U.S. SUPREME COURT WHEN, IN
ITS ORDER APPROVING THE NEW FEDERAL RULES OF CIVIL PROCEDURE, THE COURT
STATED (383 U.S. 1031 (1966)):
. . . THE FOREGOING AMENDMENTS AND ADDITIONS TO THE RULES OF CIVIL
PROCEDURE SHALL TAKE
EFFECT ON JULY 1, 1966, AND SHALL GOVERN ALL PROCEEDINGS IN ACTIONS
BROUGHT THEREAFTER AND
ALSO IN ALL FURTHER PROCEEDINGS IN ACTIONS THEN PENDING, EXCEPT TO
THE EXTENT THAT IN THE
OPINION OF THE COURT THEIR APPLICATION IN A PARTICULAR ACTION THEN
PENDING WOULD NOT BE
FEASIBLE OR WOULD WORK INJUSTICE, IN WHICH EVENT THE FORMER PROCEDURE
APPLIES. /5/
CERTAINLY IT WAS THE GENERAL INTENT OF THE AUTHORITY, WHEN IT ADOPTED
THE FINAL RULES, TO APPLY THESE RULES TO ALL PENDING ACTIONS, ABSENT A
SHOWING OF MATERIAL HARDSHIP OR INJUSTICE IN A PARTICULAR CASE. SEVERAL
THOUSAND CASES WERE PENDING BEFORE THE AUTHORITY AT VARIOUS LEVELS OF
OPERATIONS IN JANUARY 1980 WHEN THE FINAL RULES BECAME EFFECTIVE, AND AN
AVERAGE OF OVER 400 NEW CASES WERE BEING FILED WITH AND PROCESSED BY THE
AUTHORITY EACH MONTH. IN THESE CIRCUMSTANCES, ANY CONTRARY INTENT TO
APPLY THE INTERIM RULES TO PENDING CASES AND THE FINAL RULES TO NEW
CASES, EVEN THOUGH THE CASES IN MANY INSTANCES WERE BEING PROCESSED
CONCURRENTLY AT THE SAME PROCEDURAL LEVELS, OR TO ATTEMPT IN SOME
UNDEFINED MANNER SELECTIVELY TO APPLY THE INTERIM RULES IN PART AND THE
FINAL RULES IN PART TO ALL PENDING CASES, AS THE DISSENT OCCASIONALLY
SEEMS TO SUGGEST, WOULD HAVE RESULTED IN ADMINISTRATIVE CHAOS.
MORE PARTICULARLY WITH RESPECT TO THE INTENDED APPLICATION OF SECTION
2422.3(J) OF THE FINAL RULES, THIS SECTION WAS LIKEWISE PLAINLY INTENDED
TO APPLY TO PENDING CASES. SUCH CONCLUSION IS READILY APPARENT FROM THE
REASONS FOR THE CHANGE IN SECTION 2422.3(J) OF THE INTERIM RULES,
EFFECTED BY THE FINAL RULES, AS EXPRESSLY STATED IN THE PREAMBLE TO THE
FINAL RULES:
SECTION 2422.3(J) HAS BEEN REVISED TO PROVIDE THAT WHERE A TIMELY
PETITION IS FILED RAISING
A QUESTION CONCERNING REPRESENTATION (QCR) IN A UNIT WHICH IS
INCLUDED AS PART OF A PENDING
UNIT CONSOLIDATION (UC) PETITION, THE QCR PETITION WILL NO LONGER BE
AUTOMATICALLY DISMISSED
ONCE THE CONSOLIDATED UNIT IS CERTIFIED. INSTEAD, UPON THE ISSUANCE
OF A CERTIFICATION ON
CONSOLIDATION OF UNITS, THE QCR PETITIONER WILL BE GIVEN THIRTY (30)
DAYS TO SECURE A
SUFFICIENT SHOWING OF INTEREST IN THE CONSOLIDATED UNIT AND IN THE
EVENT SUCH SHOWING OF
INTEREST IS SECURED, WILL BE GIVEN AN OPPORTUNITY TO OBTAIN THE
APPROPRIATE CERTIFICATION
PURSUANT TO AN ELECTION. THIS REVISION IS INTENDED TO AVOID
UNFAIRNESS TO PETITIONERS WHO
HAVE FILED TIMELY AND OTHERWISE ADEQUATELY SUPPORTED ELECTION
PETITIONS SUBSEQUENT TO THE
PETITION FOR CONSOLIDATION OF UNITS AND ALSO WILL PERMIT PENDING
CONSOLIDATION PETITIONS TO BE
PROCESSED WHERE THE CONSOLIDATED UNIT SOUGHT IS DETERMINED TO BE
APPROPRIATE. PART-BY-PART
ANALYSIS OF COMMENTS AND CHANGES, 45 F.R. 3482-83 (1980).
OBVIOUSLY, THE AUTHORITY DID NOT INTEND TO MAINTAIN THE UNFAIRNESS OF
SECTION 2422.3(J) OF THE INTERIM RULES BY CONTINUING ITS APPLICATION IN
PENDING CASES AFTER THE FINAL RULES BECAME AFFECTIVE. MORE PRECISELY,
IT CANNOT BE SERIOUSLY ARGUED THAT THE AUTHORITY INTENDED TO CONTINUE
APPLYING THE PROCEDURES OF THE INTERIM RULES TO THE INSTANT CASES WHERE,
AS SET FORTH BELOW, THE VERY UNFAIRNESS WHICH PROMPTED THE REVISION OF
SECTION 2422.3(J) OF THE INTERIM RULES IS SO GRAPHICALLY DEMONSTRATED.
HERE, AS ALREADY MENTIONED, FASTA/NAGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE OF THE TAMPA UNIT IN FEBRUARY 1977 AND AS THE EXCLUSIVE
REPRESENTATIVE OF THE CONSOLIDATED NATIONWIDE UNIT IN APRIL 1977. /6/
THESE UNITS WERE THEREAFTER COVERED BY A TWO-YEAR AGREEMENT, EXTENDING
FROM DECEMBER 1977 TO DECEMBER 1979. PASS FILED ITS REPRESENTATION
PETITIONS IN THE PRESENT CASES, SUPPORTED BY AN ADEQUATE SHOWING OF
INTEREST (SEE N.12, INFRA), DURING THE OPEN PERIOD OF THE 1977
AGREEMENT. AS IS EVIDENT, A CERTIFICATION AND CONTRACT BAR EXISTED FROM
EARLY 1917 TO DECEMBER 1979 IN THE NATIONWIDE AND TAMPA UNITS. YET, THE
APPLICATION OF SECTION 2422.3(J) OF THE INTERIM RULES WOULD SERVE TO
PREVENT ANY NEW CHOICE BY THE EMPLOYEES OF THEIR BARGAINING
REPRESENTATIVE FOR AN ADDITIONAL PERIOD OF UP TO FOUR YEARS (I.E.,
ONE-YEAR CONSOLIDATION CERTIFICATION BAR AND THREE-YEAR CONTRACT BAR).
IN OTHER WORDS, THE CONSOLIDATED UNIT EMPLOYEES WOULD BE DENIED ANY
OPPORTUNITY WHATSOEVER FOR A FREE CHOICE OF BARGAINING REPRESENTATIVES
DURING A PERIOD TOTALLING UP TO SEVEN YEARS, BASED ON THE APPLICATION OF
SECTION 2422.3(J) OF THE INTERIM RULES TO THE RO PETITIONS.
AS ALREADY MENTIONED, IT WAS JUST SUCH UNFAIRNESS WHICH PROMPTED THE
CHANGE OF SECTION 2422.3(J) OF THE INTERIM RULES, AND THE AUTHORITY
PLAINLY DID NOT INTEND THAT THIS INEQUITY CONTINUE AFTER THE ADOPTION OF
THE FINAL RULES.
IT IS SIGNIFICANT THAT SECTION 7134 OF THE STATUTE REQUIRES THE
AUTHORITY TO PRESCRIBE RULES AND REGULATIONS TO CARRY OUT THE STATUTORY
PROVISIONS APPLICABLE TO THE AUTHORITY. IN THIS REGARD, SECTION
7105(A)(2)(A) OF THE STATUTE ESTABLISHES, AMONG THE POWER AND DUTIES OF
THE AUTHORITY, THE DETERMINATION OF "THE APPROPRIATENESS OF UNITS FOR
LABOR ORGANIZATION REPRESENTATION UNDER SECTION 7112" OF THE STATUTE.
/7/ IN ACCORDANCE WITH THE FOREGOING REQUIREMENTS, THE FINAL RULES AND,
MORE PARTICULARLY, SECTION 2422.3(J) THEREOF, WERE PROMULGATED. THUS,
THE ISSUANCE OF THE AMENDED RULES, INCLUDING SECTION 2422.3(J), WAS
CLEARLY WITHIN THE STATUTORY RESPONSIBILITY OF THE AUTHORITY.
IT IS ALSO SIGNIFICANT THAT THE CHANGE OF SECTION 2422.3(J) OF THE
INTERIM RULES IMPLEMENTED THE EXPRESS FINDING WHICH PROMPTED THE
ADOPTION OF THE STATUTE BY CONGRESS AND THE EXPRESS LANGUAGE IN RELATED
PROVISIONS OF THE STATUTE. AS STATED IN SECTION 7101(A)(1) CONCERNING
THE "FINDINGS AND PURPOSE" OF THE STATUTE:
(A) THE CONGRESS FINDS THAT--
(1) EXPERIENCE IN BOTH PRIVATE AND PUBLIC EMPLOYMENT INDICATES THAT
THE STATUTORY
PROTECTION OF THE RIGHT OF EMPLOYEES TO ORGANIZE, BARGAIN
COLLECTIVELY, AND PARTICIPATE
THROUGH LABOR ORGANIZATIONS OF THEIR OWN CHOOSING IN DECISION WHICH
AFFECT THEM--
(A) SAFEGUARDS THE PUBLIC INTEREST.
(B) CONTRIBUTES TO THE EFFECTIVE CONDUCT OF PUBLIC BUSINESS, AND
(C) FACILITATES AND ENCOURAGES THE AMICABLE SETTLEMENTS OF DISPUTES
BETWEEN EMPLOYEES AND
THEIR EMPLOYERS INVOLVING CONDITIONS OF EMPLOYMENT; . . . LIKEWISE,
AS STATED FOR EXAMPLE IN SECTION 7102 OF THE STATUTE;
SEC. 7102. EMPLOYEES' RIGHTS
EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO
REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND EACH
EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT. EXCEPT AS
OTHERWISE PROVIDED UNDER
THIS CHAPTER, SUCH RIGHT INCLUDES THE RIGHT--
(1) TO ACT FOR A LABOR ORGANIZATION IN THE CAPACITY OF A
REPRESENTATIVE AND THE RIGHT, IN
THAT CAPACITY, TO PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO
HEADS OF AGENCIES AND OTHER
OFFICIALS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE CONGRESS, OR
OTHER APPROPRIATE
AUTHORITIES, AND
(2) TO ENGAGE IN COLLECTIVE BARGAINING WITH RESPECT TO CONDITIONS OF
EMPLOYMENT THROUGH
REPRESENTATIVES CHOSEN BY EMPLOYEES UNDER THIS CHAPTER. THE
AUTHORITY'S AMENDMENT OF SECTION 2422.3(J) OF THE INTERIM RULES TO
SANCTION AN ELECTION IN A UNIT CONSOLIDATION CASE, WHEN AN INTERVENING
UNION SUBMITS A TIMELY PETITION SUPPORTED BY AN ADEQUATE SHOWING OF
INTEREST IN THAT UNIT, PLAINLY EFFECTUATES THIS DEMOCRATIC PRINCIPLE OF
FREEDOM OF CHOICE SOUGHT TO BE ACCOMPLISHED BY THE STATUTE. THUS, THE
IMMEDIATE APPLICATION OF THE CHANGE TO PENDING CASES IS CONSISTENT WITH
AND DICTATED BY THE DESIGN AND PURPOSES OF THE STATUTE. /8/
APART FROM THE FOREGOING, FASTA/NAGE HAS FAILED TO DEMONSTRATE IN THE
RECORD THAT ANY MATERIAL HARDSHIP OR INJUSTICE WOULD RESULT FROM
APPLYING THE CHANGE IN SECTION 2422.3(J) TO THE INSTANT CASES. THE
RULES UNDER WHICH FASTA/NAGE FILED ITS UNIT CONSOLIDATION PETITION WERE
CLEARLY DESIGNATED AS "TRANSITION" RULES. LIKEWISE, THE INTERIM RULES,
INCLUDING SECTION 2422.3(J) THEREOF, UNDER WHICH THE RO PETITIONS WERE
FILED AND UPON WHICH FASTA/NAGE SPECIFICALLY RELIES, WERE PLAINLY
DESIGNATED AS "INTERIM" IN NATURE AND WERE SET TO EXPIRE NO LATER THAN
SIC MONTHS AFTER ISSUANCE. MOREOVER, AS ALREADY MENTIONED, COMMENTS ON
THE INTERIM RULES WERE EXPRESSLY SOLICITED FROM INTERESTED PERSONS BY
THE AUTHORITY. IN OTHER WORDS, THE ENTIRE PROCESS OF TRANSITION AND
INTERIM RULES PRESUPPOSED THAT CHANGES WOULD LIKELY BE EFFECTED BY THE
AUTHORITY IN ITS FINAL RULES AND, AS DEMONSTRATED BY THE PREAMBLE TO THE
FINAL RULES, NUMEROUS CHANGES IN THE PREVIOUSLY-EXISTING RULES AND
PRACTICES WERE IN FACT MADE BY THE FINAL RULES OF THE AUTHORITY (45
FED.REG. 3482-86). THUS, AMENDMENTS TO THE INTERIM RULES WERE HARDLY
"SURPRISES" SUDDENLY IMPOSED ON UNSUSPECTING PARTIES TO THESE
PROCEEDINGS. /9/ FURTHER, WHILE PASS FILED COMMENTS URGING CHANGES IN
THE INTERIM RULES RELATED TO UNIT CONSOLIDATION, FASTA/NAGE DID NOT FILE
ANY SUCH COMMENTS, AND, ALTHOUGH ADMITTEDLY AWARE THAT THE FINAL RULES
MIGHT BE APPLIED TO PENDING CASES, /10/ FASTA/NAGE DID NOT SEEK ANY
RECONSIDERATION OF THE SUBJECT AMENDMENT IN SECTION 2422.3(J) OF THE
FINAL RULES. FINALLY, ALTHOUGH FASTA/NAGE ADVERTS TO ADDITIONAL
RESOURCES WHICH MAY BE REQUIRED IF THE FINAL RULES ARE HERE APPLIED, THE
EXPENDITURE OF SUCH RESOURCES FALLS UPON BOTH FASTA/NAGE AND PASS AND IS
THE RESULT OF THE FREEDOM OF CHOICE AFFORDED EMPLOYEES TO SELECT,
THROUGH A DEMOCRATIC ELECTION, THEIR BARGAINING REPRESENTATIVE AS
PROVIDED FOR IN THE STATUTE. THE EXPENDITURE OF SUCH RESOURCES FAILS TO
REFLECT ANY SIGNIFICANT HARDSHIP OR INJUSTICE RESULTING FROM APPLICATION
OF THE FINAL RULES IN THE INSTANT PROCEEDINGS.
TO REPEAT, THEREFORE, WE FIND THAT, BASED ON THE PRINCIPLES AND
CIRCUMSTANCES DISCUSSED ABOVE, SECTION 2422.3(J) OF THE FINAL RULES IS
APPLICABLE TO THE PRESENT CASES. /11/
THE SECOND QUESTION RAISED BY THE REGIONAL DIRECTOR CONCERNS PASS'
SHOWING OF INTEREST. AS NOTED ABOVE, SECTION 2422.3(J) OF THE FINAL
RULES PROVIDES THAT, UPON ISSUANCE OF A CERTIFICATION ON CONSOLIDATION
OF UNITS, THE PETITIONER WILL HAVE THIRTY DAYS WITHIN WHICH TO SUBMIT A
SUFFICIENT SHOWING OF INTEREST IN THE CONSOLIDATED UNIT. IN OUR VIEW,
THE SHOWING OF INTEREST ORIGINALLY SUBMITTED BY PASS IN BOTH 3-RO-41 AND
4-RO-27 REMAINS CURRENT AND SHOULD BE UTILIZED TO DETERMINE WHETHER PASS
NOW HAS A SUFFICIENT SHOWING OF INTEREST IN THE CONSOLIDATED UNIT. /12/
ACCORDINGLY, THESE CASES ARE BEING REMANDED TO THE REGIONAL DIRECTOR
FOR ACTION CONSISTENT WITH OUR DETERMINATION HEREIN.
ISSUED, WASHINGTON, D.C., DECEMBER 11, 1980
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
RONALD W. HAUGHTON, CHAIRMAN DISSENTING:
I CANNOT AGREE WITH MY COLLEAGUES THAT SECTION 2422.3(J) OF THE
AUTHORITY'S FINAL RULES SHOULD BE APPLIED RETROACTIVELY TO THE PRESENT
CASES.
AS FOUND BY THE MAJORITY, THE US PETITION WAS FILED UNDER THE
AUTHORITY'S TRANSITION RULES, AND THE RO PETITIONS WERE FILED WHEN THE
AUTHORITY'S INTERIM RULES WERE IN EFFECT. SECTION 2422.3(J) OF THE
INTERIM RULES, SIMILAR TO THE RELEVANT RULES AND PRACTICES UNDER THE
TRANSITION RULES, PROVIDED AS FOLLOWS:
SEC. 2422.3. TIMELINESS OF PETITION
(J) A PETITION FILED PURSUANT TO SEC. 2422.2(A) AND (B) SEEKING AN
ELECTION IN ANY EXISTING
EXCLUSIVELY RECOGNIZED UNIT COVERED BY A PENDING PETITION TO
CONSOLIDATE EXISTING EXCLUSIVELY
RECOGNIZED UNITS MUST BE FILED TIMELY IN ACCORDANCE WITH THE
REQUIREMENTS SET FORTH IN THIS
SECTION: PROVIDED, HOWEVER, THAT SUCH PETITION WILL BE DISMISSED IF
A CERTIFICATION ON
CONSOLIDATION OF UNITS IS ISSUED. THUS, UNDER THE AUTHORITY'S
INTERIM REGULATIONS, IF A TIMELY REPRESENTATION PETITION WERE FILED
SEEKING AN ELECTION IN ANY UNIT PREVIOUSLY INCLUDED WITHIN A PENDING
PETITION FOR UNIT CONSOLIDATION, THE REPRESENTATION PETITION WOULD BE
HELD IN ABEYANCE DURING THE PROCESSING OF THE UC PETITION AND, IF A
CERTIFICATION ON THE CONSOLIDATED UNIT WERE THEREAFTER ISSUED, THE
REPRESENTATION PETITION WOULD BE DISMISSED. THE PROCEDURE EMBODIED IN
SECTION 2422.3(J) OF THE AUTHORITY'S INTERIM REGULATIONS WAS CONSISTENT
WITH THE POLICY ADOPTED BY THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS TO APPLY IN THESE CIRCUMSTANCES UNDER
EXECUTIVE ORDER 11491, AS AMENDED /13/ WHICH POLICY WAS IN FACT APPLIED
BY THE ASSISTANT SECRETARY UNDER THE EXECUTIVE ORDER TO THE SAME PARTIES
IN CIRCUMSTANCES SIMILAR TO THOSE INVOLVED HEREIN. /14/
SUBSEQUENT TO THE FILING OF THE UC PETITION IN 3-UC-9 AND THE RO
PETITIONS INVOLVED HEREIN, AND DURING THE PROCESSING OF THE UC PETITION,
THE AUTHORITY ISSUED ITS FINAL RULES AND REGULATIONS TO BECOME EFFECTIVE
ON JANUARY 28, 1980 (5 CFR 2400.1-2471.12 (1980)). SECTION 2422.3(J)
WAS REVISED THEREIN TO PROVIDE, ESSENTIALLY, THAT TIMELY FILED
REPRESENTATION PETITIONS WILL NO LONGER BE AUTOMATICALLY DISMISSED UPON
THE ISSUANCE OF A CERTIFICATION IN A CONSOLIDATED UNIT, BUT THAT THE
PETITIONER WILL BE GIVEN 30 DAYS THEREFROM TO SUBMIT A SUFFICIENT
SHOWING OF INTEREST IN SUCH CONSOLIDATED UNIT AND, IF SUCCESSFUL, THE
PETITION(S) WILL BE PROCESSED.
NONE OF THE PARTIES HAS DISPUTED THE VALIDITY OF THE AUTHORITY'S
AMENDMENT OF SECTION 2422.3(J), AND NEITHER DOES THE UNDERSIGNED. THE
QUESTION NOW BEFORE THE AUTHORITY IS WHETHER OR NOT THE NEW RULE SHOULD
BE APPLIED RETROACTIVELY TO THE UC AND RO PETITIONS WHICH WERE FILED
UNDER THE TRANSITION AND INTERIM RULES, RESPECTIVELY. /15/
THE COURTS HAVE FREQUENTLY INDICATED THAT THE LAW SHOULD AVOID
RETROACTIVITY. SEE MACEREN V. DISTRICT DIRECTOR, IMMIGRATION AND
NATURALIZATION SERVICE, LOS ANGELES, CALIFORNIA, 509 F.2D 934, 939 (9TH
CIR. 1974). SEE ALSO ADDISON V. HOLLY HILL FRUIT PRODUCTS, INC., 322
U.S. CORPORATION, 332 U.S. 194, 203 (1947). STRICT SCRUTINY OF
RETROACTIVE MEASURES HAS EXTENDED TO THOSE PROMULGATED BY LEGISLATURES
AND ADMINISTRATIVE AGENCIES ALIKE. DAUGHTERS OF MIRIAM CENTER FOR THE
AGED V. MATHEWS, 590 F.2D 1250, 1259 (3RD CIR. 1978), AND CASES CITED.
ACCORDINGLY, THE COURTS HAVE DECLINED TO ENFORCE ADMINISTRATIVE ORDERS
WHEN, IN THEIR VIEW, THE INEQUITY OF RETROACTIVE APPLICATION HAS NOT
BEEN COUNTER-BALANCED BY SIGNIFICANT STATUTORY INTERESTS. SEE, E.G.,
MACEREN AND DAUGHTERS OF MIRIAM CENTER FOR THE AGED, SUPRA. SEE ALSO
GREENE V. U.S., 376 U.S. 149, 160 (1964), AND RETAIL, WHOLESALE AND
DEPARTMENT STORE UNION, AFL-CIO V. NLRB, 466 F.2D 380 (D.C. CIR. 1972).
IS THE INEQUITY OF RETROACTIVE APPLICATION IN THIS PARTICULAR CASE
COUNTER-BALANCED BY A SIGNIFICANT STATUTORY INTEREST? WHAT STATUTORY
PROVISION REQUIRES AN ABRUPT DEPARTURE FROM AN ESTABLISHED PROCEDURE
WHICH ALL PARTIES HAD A RIGHT TO EXPECT NOT ONLY ON THE BASIS OF THE
INTERIM RULE WHICH WAS IN EFFECT AT THE TIME THE REPRESENTATION
PETITIONS WERE FILED BUT ON THE BASIS OF A LONG HISTORY UNDER THE
EXECUTIVE ORDER AS WELL AS PREVIOUS CASES INVOLVING THE SAME PARTIES IN
WHICH THE RULE WAS APPLIED? GIVEN THIS SITUATION, IT IS UNDERSTANDABLE
THAT FASTA/NAGE DID NOT SEEK ANY RECONSIDERATION OF THE SUBJECT
AMENDMENT AS NOTED BY THE MAJORITY. THERE WAS NOTHING IN SUCH AMENDMENT
TO SUGGEST THAT RETROACTIVE APPLICATION TO CASES ALREADY FILED WAS
INTENDED. IF SUCH A PROVISION HAD BEEN INCLUDED IN THE FINAL
REGULATION, I WOULD HAVE REGARDED IT AS CLEAR EVIDENCE OF INTENT. NO
SUCH INTENT WAS EXPRESSED IN THE FINAL REGULATION AS ADOPTED.
ADMITTEDLY, SECTION 2422.3(J) OF THE INTERIM RULES WAS AMENDED TO
ELIMINATE THE UNFAIRNESS OF ALLOWING A UNIT CONSOLIDATION CERTIFICATION
TO PREVENT THE PROCESSING OF A TIMELY FILED RO PETITION SUPPORTED BY AN
ADEQUATE SHOWING OF INTEREST. BUT THE UNFAIRNESS WHICH PROMPTED SUCH A
CHANGE IN THE RULE DID NOT REPRESENT A BASIC INCONSISTENCY OR CONFLICT
WITH THE STATUTORY DESIGN. IT REPRESENTED AN EXERCISE OF DISCRETION
UNDER SECTION 1112(D) OF THE STATUTE AND DOES NOT MANDATE ACTION BY THE
AUTHORITY WHICH WOULD SUBVERT RELIANCE BY THE PARTIES ON
WELL-ESTABLISHED POLICIES WHICH HAD PREVAILED UNDER BOTH THE EXECUTIVE
ORDER AND THE STATUTE. INDEED, THE POLICY IN QUESTION WAS EXPLICITLY
EXPRESSED BY THE ASSISTANT SECRETARY'S MANUAL AS EARLY AS 1976 (SEE
N.13, ABOVE).
IT IS A STATUTORY PRINCIPLE THAT EMPLOYEES BE PERMITTED TO SELECT THE
LABOR ORGANIZATION OF THEIR OWN CHOICE THROUGH DEMOCRATIC ELECTIONS.
HOWEVER, EMPLOYEES DO NOT HAVE THE RIGHT UNDER THE STATUTE TO SECURE
ELECTIONS ANY TIME THEY DESIRE. THE MATTER OF ELECTION AND
CERTIFICATION BARS OF THE SORT CONTAINED IN SECTION 2422.3(J) OF THE
INTERIM REGULATIONS IS A WELL-ESTABLISHED PRINCIPLE IN LABOR LAW
GENERALLY, AND IN THE STATUTE IN PARTICULAR (SEE SECTION 2422.3 OF THE
FINAL RULES AND REGULATIONS). AND MOST IMPORTANTLY, WITH REGARD TO THE
CONSOLIDATION OF UNITS, SECTION 7112(D) OF THE STATUTE PROVIDES THAT
ELECTIONS NEED NOT BE HELD IN ALL INSTANCES. AS STATED THEREIN:
(D) TWO OR MORE UNITS WHICH ARE IN AN AGENCY AND FOR WHICH A LABOR
ORGANIZATION IS THE
EXCLUSIVE REPRESENTATIVE MAY, UPON PETITION BY THE AGENCY OR LABOR
ORGANIZATION, BE
CONSOLIDATED WITH OR WITHOUT AN ELECTION INTO A SINGLE LARGER UNIT IF
THE AUTHORITY CONSIDERS
THE LARGER UNIT TO BE APPROPRIATE. THE AUTHORITY SHALL CERTIFY THE
LABOR ORGANIZATION AS THE
EXCLUSIVE REPRESENTATIVE OF THE NEW LARGER UNIT.
WHILE I AGREE WITH THE SUBSTANCE OF THE NEW RULE, AS IT WOULD APPLY
TO CASES FILED AFTER ITS ADOPTION, IN MY VIEW OF THE FACTS AND
CIRCUMSTANCES PRESENT IN THE INSTANT CASES, THE INEQUITY OF RETROACTIVE
APPLICATION IS NOT COUNTER-BALANCED BY ANY OVERRIDING STATUTORY
INTEREST.
THE MAJORITY ASSERTS THAT FASTA/NAGE FAILED TO DEMONSTRATE THAT ANY
MATERIAL HARDSHIP OR INJUSTICE WOULD RESULT FROM APPLYING THE NEW RULE
TO THE INSTANT CASES. THERE IS NO QUESTION THOUGH, THAT THE NEW RULE
INVOLVES A SUBSTANTIAL CHANGE FROM THAT WHICH ALL PARTIES HAD REASON TO
EXPECT. THERE IS ALSO NO QUESTION THAT APPLICATION OF THE NEW RULE TO
THE INSTANT CASES WILL PLACE AN ADDITIONAL BURDEN ON FASTA/NAGE AND THAT
IT DISRUPTS THE GROUND RULES UPON WHICH FASTA/NAGE HAD RELIED IN THE
EXERCISE OF ITS REPRESENTATIONAL RESPONSIBILITIES. IN MY OPINION,
FAIRNESS AND EQUITY REQUIRE THAT A CHANGE OF SUCH SUBSTANTIAL
PROPORTIONS AS HEREIN INVOLVED SHOULD BE APPLIED PROSPECTIVELY TO AFFORD
PARTIES SUFFICIENT TIME UPON WHICH TO PREDICATE THEIR ACTIONS AND NOT
RETROACTIVELY TO CASES WHICH ALREADY HAVE BEEN FILED IN THE RELIANCE
UPON THE POLICY AND REGULATION IN EFFECT AT THE TIME OF FILING.
IN SUMMARY, THERE IS NOTHING IN THE STATUTE, THE LEGISLATIVE HISTORY,
OR THE STATUTORY PURPOSES WHICH REQUIRES OR EVEN SUGGESTS THE
RETROACTIVE APPLICATION OF THE NEW RULE INVOLVED HEREIN WHICH
SIGNIFICANTLY DEPARTS FROM LONG-ESTABLISHED POLICY EFFECTIVE BEFORE AND
AFTER THE DATE OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE. TO NOW HOLD THE PARTIES TO A REVISED POLICY WHICH WAS
ESTABLISHED AND BECAME EFFECTIVE AFTER THE INSTANT PETITIONS WERE FILED
AND WHILE THE UC PETITION WAS BEING PROCESSED, AND WHICH CONTAINED NO
WARNING OF POSSIBLE RETROACTIVE APPLICATION, WOULD CREATE UNDUE SURPRISE
AND WORK AN UNFAIRNESS ON FASTA/NAGE. MOREOVER, A DETERMINATION THAT
SECTION 2422.3(J) OF THE FINAL RULES AND REGULATIONS WILL APPLY TO
PETITIONS FILED AFTER JANUARY 28, 1980, THE EFFECTIVE DATE OF SUCH RULES
AND REGULATIONS, WILL ALLOW ALL PARTIES TO BE FULLY AWARE OF THEIR
RIGHTS AND OBLIGATIONS IN SIMILAR PROCEEDINGS.
DATED, WASHINGTON, D.C., DECEMBER 11, 1980
RONALD W. HAUGHTON, CHAIRMAN
FEDERAL LABOR RELATIONS AUTHORITY
CERTIFICATE OF SERVICE
COPIES OF THE ORDER REMANDING CASES OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED BELOW:
E. V. CURRAN, DIRECTOR
LABOR RELATIONS
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
800 INDEPENDENCE AVENUE, S.W.
WASHINGTON, D.C. 20591
SANDRA E. DOMANICK
LABOR RELATIONS SPECIALIST
OFFICE OF LABOR RELATIONS
FEDERAL AVIATION ADMINISTRATION
800 INDEPENDENCE AVENUE, S.W.
WASHINGTON, D.C. 20591
CHARLES R. BOTH, ESQUIRE
SUITE 800
1140 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
MR. HOWARD E. JOHANNSSEN, PRESIDENT
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
SUITE 820
444 NORTH CAPITAL STREET, N.W.
WASHINGTON, D.C. 20001
PAUL E. TRAYERS, ESQUIRE
ASSOCIATE GENERAL COUNSEL
FEDERAL AVIATION SCIENCE AND
TECHNOLOGICAL ASSOCIATION
2139 WISCONSIN AVENUE, N.W.
WASHINGTON, D.C. 20007
ALEXANDER T. GRAHAM
WASHINGTON REGIONAL OFFICE
FEDERAL LABOR RELATIONS AUTHORITY
1133 15TH STREET, N.W., SUITE 300
WASHINGTON, D.C. 20005
MR. SEYMOUR X. ALSHER
REGIONAL DIRECTOR
FEDERAL LABOR RELATIONS AUTHORITY
1776 PEACHTREE STREET, N.W.
SUITE 501, NORTH WING
ATLANTA, GEORGIA 30309
--------------- FOOTNOTES$ ---------------
/1/ FASTA/NAGE WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE IN THE
CONSOLIDATED NATIONWIDE UNIT IN APRIL 1977.
/2/ THE TRANSITION RULES WERE ISSUED EFFECTIVE JANUARY 1, 1979 (44
FED.REG. 5) AND CONTINUED THEREAFTER, UNDER SECTION 7135(B) OF THE
STATUTE, UNTIL JULY 30, 1979. ON THE LATTER DATE, THE INTERIM RULES
BECAME EFFECTIVE, WHICH RULES WERE SET TO EXPIRE ON JANUARY 31, 1980, OR
UPON THE EFFECTIVE DATE OF FINAL RULES AND REGULATIONS ISSUED PRIOR TO
JANUARY 31, 1980 (44 FED.REG. 44740). IN THE PREAMBLE TO THE INTERIM
RULES, THE AUTHORITY INVITED COMMENTS THEREON BY INTERESTED LABOR
ORGANIZATIONS, AGENCIES AND OTHER PERSONS (ID.).
/3/ SECTION 2400.2 OF THE TRANSITION RULES, AS HERE RELEVANT,
CONTINUED THE RULES OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER E.O. 11491, AS AMENDED. FOR THE
RELEVANT RULE OF THE ASSISTANT SECRETARY, SEE 29 C.F.R. 202.3(I) (1979);
FOR THE PRACTICES OF THE ASSISTANT SECRETARY THEREUNDER, SEE BOOK 5,
CHAP. 19, SEC. 3, PAR. 119.032 OF ASSISTANT SECRETARY'S MANUAL ON
FEDERAL LABOR-MANAGEMENT RELATIONS (1976).
/4/ THE UC PETITION WAS PROCESSED TO THE POINT WHERE ON MARCH 14,
1980, THE REGIONAL DIRECTOR ISSUED A REPORT AND FINDINGS ON PETITION FOR
CONSOLIDATION OF UNITS WHEREIN HE FOUND THE CONSOLIDATED UNIT
APPROPRIATE. SINCE THIS UNIT INCLUDED PROFESSIONAL EMPLOYEES, A
SELF-DETERMINATION ELECTION WAS HELD AMONG SUCH EMPLOYEES. ON AUGUST
11, 1980, THE PROFESSIONAL EMPLOYEES VOTED FOR INCLUSION WITH THE
NONPROFESSIONAL EMPLOYEES. DURING THE PROCESSING OF 3-UC-9, BOTH RO
PETITIONS WERE HELD IN ABEYANCE.
/5/ THE CASES CITED BY THE DISSENT ARE CLEARLY DISTINGUISHABLE,
SINCE, APART FROM OTHER CONSIDERATIONS, THEY DID NOT CONCERN PROCEDURAL
RULES SUCH AS HERE INVOLVED. MOREOVER, THERE IS NO JUDICIAL SUPPORT FOR
THE IMPLICIT ASSUMPTION IN THE DISSENT THAT THE APPLICATION OF REVISED
PROCEDURAL RULES TO PENDING CASES IS INHERENTLY "INEQUITABLE." IN ANY
EVENT, EVEN APPLYING THE "BALANCING" TEST ADVERTED TO IN THE CASES CITED
BY THE DISSENT, WE FIND, AS DISCUSSED HEREIN, THAT BOTH THE STATUTORY
DESIGN AND THE EQUITIES COMPEL THE CONCLUSION THAT SECTION 2422.3(J) OF
THE FINAL RULES IS APPLICABLE TO THE INSTANT CASES.
/6/ THE NATIONWIDE AND TAMPA UNITS CONSTITUTE THE BULK OF THE
CONSOLIDATED UNIT SOUGHT BY FASTA/NAGE IN 3-CU-9.
/7/ SECTION 7112 OF THE STATUTE PROVIDES IN RELEVANT PART:
SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR ORGANIZATION
REPRESENTATION
(A)(1) THE AUTHORITY SHALL DETERMINE THE APPROPRIATENESS OF ANY UNIT.
THE AUTHORITY SHALL
DETERMINE IN EACH CASE WHETHER, IN ORDER TO ENSURE EMPLOYEES THE
FULLEST FREEDOM IN EXERCISING
THE RIGHTS GUARANTEED UNDER THIS CHAPTER, THE APPROPRIATE UNIT SHOULD
BE ESTABLISHED ON AN
AGENCY, PLANT, INSTALLATION, FUNCTIONAL, OR OTHER BASIS AND SHALL
DETERMINE ANY UNIT TO BE AN
APPROPRIATE UNIT ONLY IF THE DETERMINATION WILL ENSURE A CLEAR AND
IDENTIFIABLE COMMUNITY OF
INTEREST AMONG THE EMPLOYEES IN THE UNIT AND WILL PROMOTE EFFECTIVE
DEALINGS WITH, AND
EFFICIENCY OF THE OPERATIONS OF, THE AGENCY INVOLVED.
. . . .
(D) TWO OR MORE UNITS WHICH ARE IN AN AGENCY AND FOR WHICH A LABOR
ORGANIZATION IS THE
EXCLUSIVE REPRESENTATIVE MAY, UPON PETITION BY THE AGENCY OR LABOR
ORGANIZATION, BE
CONSOLIDATED WITH OR WITHOUT AN ELECTION INTO A SINGLE LARGER UNIT IF
THE AUTHORITY CONSIDERS
THE LARGER UNIT TO BE APPROPRIATE. THE AUTHORITY SHALL CERTIFY THE
LABOR ORGANIZATION AS THE
EXCLUSIVE REPRESENTATIVE OF THE NEW LARGER UNIT.
/8/ CONTRARY TO THE DISSENT, WE ARE NOT CONCERNED IN THE PRESENT
CASES WITH ELECTION OR CERTIFICATION BARS, WHICH SEEK TO PROMOTE
STABILITY OF LABOR-MANAGEMENT RELATIONS DURING REASONABLE PERIODS OF
TIME. RATHER, WE ARE CONCERNED WITH THE BAR TO AN ELECTION FOR UP TO
SEVEN YEARS-- A MANIFESTLY UNREASONABLE PERIOD OF TIME-- BASED ON A
REVOKED PROVISION OF SECTION 2422.3(J) OF THE INTERIM RULES. LIKEWISE,
SECTION 7112(D) OF THE STATUTE RELATING TO CONSOLIDATION OF UNITS WAS
INTENDED TO FACILITATE LARGER BARGAINING UNITS, NOT TO SHACKLE EMPLOYEES
IN THE SELECTION OF A BARGAINING REPRESENTATIVE IN THOSE LARGER UNITS.
/9/ THE DISSENT REFERS TO A "LONG ESTABLISHED" POLICY DERIVING FROM
THE ASSISTANT SECRETARY'S MANUAL AND THE COUNCIL'S DECISION IN THE
MIDWAY AIRWAY FACILITY CASE, ISSUED UNDER E.O. 11491, AS GROUNDS FOR
ALLEGED "SURPRISE" BY FASTA/NAGE. HOWEVER, THE ISSUANCES MENTIONED BY
THE DISSENT WERE PREDICATED ON THE EXECUTIVE ORDER AND NOT ON THE
STATUTE. MOREOVER, THE COUNCIL DID NOT PASS AT ANY TIME ON THE VALIDITY
OF THE ASSISTANT SECRETARY'S MANUAL AS APPLIED IN CIRCUMSTANCES SUCH AS
HERE INVOLVED. ADDITIONALLY, THE MIDWAY AIRWAY FACILITY CASE, CITED BY
THE DISSENT, IS CLEARLY DISTINGUISHABLE ON ITS FACTS. THERE, UNLIKE
HERE, IT APPEARS THAT THE TWO UNITS SOUGHT BY PASS DID NOT CONSTITUTE
VIRTUALLY ALL OF THE LARGER UNIT SOUGHT TO BE CONSOLIDATED BY
FASTA/NAGE, AND NO FINDING WAS MADE BY THE COUNCIL THAT PASS HAD
SUBMITTED AN ADEQUATE SHOWING OF INTEREST IN THE CONSOLIDATED UNIT. IN
ANY EVENT, THE NATURE OF TEE TRANSITION AND INTERIM RULES RENDERS
COMPLETELY UNPERSUASIVE ANY CLAIM OF SURPRISE AT THE CHANGE IN SECTION
2422.3(J) EFFECTED BY THE FINAL RULES.
/10/ IN ITS "GUIDANCE ON PROCESS" FILED IN FEBRUARY 1980 WITH THE
REGIONAL DIRECTOR IN 3-CU-9, FASTA/NAGE CONCEDED THAT: "IT IS THE
UNDERSTANDING OF (FASTA/NAGE) THAT THE REGIONAL DIRECTOR HAS THE
DISCRETION IN APPLYING EITHER INTERIM OR FINAL RULES IN PETITIONS
SUBMITTED UNDER THE INTERIM RULES ON A CASE-BY-CASE BASIS."
/11/ CF. LEEDOM V. INTERNATIONAL BROTHERHOOD OF ELEC. WORKERS, 278
F.2D 237 (D.C. CIR. 1960), IN WHICH A NEW RULE OF THE NLRB SHORTENING
THE CONTRACT BAR TERM FROM FIVE YEARS TO TWO YEARS WAS UPHELD BY THE
COURT AS PROPERLY APPLIED TO A THREE-YEAR CONTRACT ENTERED INTO BY THE
PARTIES WHEN THE LONGER CONTRACT BAR RULE WAS IN EFFECT.
/12/ IN THIS CONNECTION, THE RECORD INDICATES THAT THE REGIONAL
DIRECTOR FOUND PASS' SHOWING OF INTEREST IN 3-RO-41 TO BE SUFFICIENT AT
THE TIME THE PETITION WAS FILED. SUCH DETERMINATION APPARENTLY WAS NOT
MADE WITH REGARD TO THE PETITION IN 4-RO-27 AS PROCESSING OF THE CASE
WAS HELD IN ABEYANCE BEFORE SUCH DETERMINATION COULD BE MADE. HOWEVER
BASED UPON THE SHOWING OF INTEREST IN 3-RO-41 RELATIVE TO THE TOTAL
NUMBER OF EMPLOYEES IN THE CONSOLIDATED UNIT FOUND APPROPRIATE, IT
APPEARS THAT THE SHOWING OF INTEREST ORIGINALLY SUBMITTED BY PASS IN
3-RO-41 MEETS THE REQUIREMENTS SET FORTH IN SECTION 2422.3(J) (2) OF THE
AUTHORITY'S FINAL RULES.
/13/ THE ASSISTANT SECRETARY'S MANUAL ON FEDERAL LABOR-MANAGEMENT
RELATIONS, BOOK 5, CHAPTER 19, ENTITLED "UNIT CONSOLIDATION CASE
HANDLING," WHICH WAS ISSUED ON JUNE 28, 1976, STATES AT SECTION 3,
PARAGRAPH 119.032, IN PART, AS FOLLOWS:
WHEN A PETITION WHICH RAISES A (QUESTION CONCERNING REPRESENTATION)
IS FILED FOR ALL OR
PART OF ANY UNIT PREVIOUSLY INCLUDED WITHIN A PENDING UC PETITION
AFTER A UC PETITION HAS BEEN
FILED, THE CONSOLIDATION QUESTION IS RESOLVED FIRST, WITH ANY ACTION
WITH REGARD TO THE
PETITION RAISING A QCR SUSPENDED PENDING THE RESOLUTION OF THE
CONSOLIDATION ISSUE. AFTER A
CONSOLIDATED UNIT WINS APPROVAL AND IS CERTIFIED AS AN APPROPRIATE
UNIT, ANY QCR PETITION WITH
RESPECT TO ALL OR PART OF ANY OF THE UNITS CONSOLIDATED WHICH WAS
FILED SUBSEQUENT TO THE UC
PETITION SHOULD BE DISMISSED.
/14/ SEE, E.G., DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, MIDWAY AIRWAY FACILITY SECTOR, CHICAGO, ILLINOIS,
ASSISTANT SECRETARY CASE NOS. 50-15422 (RO) AND 50-15424 (RO), 6 FLRC
376 (1978), WHEREIN THE ASSISTANT SECRETARY DISMISSED TWO RO PETITIONS
FILED BY PASS (THE PETITIONER HEREIN) SEEKING TO REPRESENT TWO SEPARATE
UNITS OF TECHNICIANS WITHIN THE FAA (THE ACTIVITY HEREIN) ONCE THOSE
UNITS WERE CONSOLIDATED INTO A LARGER EXISTING UNIT REPRESENTED BY
FASTA/NAGE PURSUANT TO THE LATTER'S UC PETITION WHICH HAD BEEN PENDING
AT THE TIME THAT PASS FILED ITS RO PETITIONS. THE FEDERAL LABOR
RELATIONS COUNCIL DENIED PASS' PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION, NOTING THAT THE ASSISTANT SECRETARY WAS EMPOWERED
TO ISSUE REGULATIONS TO ADMINISTER HIS FUNCTIONS UNDER THE EXECUTIVE
ORDER AND, AS THE ISSUER OF THOSE REGULATIONS, WAS RESPONSIBLE FOR THEIR
INTERPRETATION AND IMPLEMENTATION.
/15/ AS ALREADY INDICATED, THE RELEVANT PROVISIONS OF THE TRANSITION
AND INTERIM RULES WERE ESSENTIALLY THE SAME.