28:0172(27)RO - HFE VS NAVY, NAVAL SHIPYARD, PEARL HARBOR



[ v28 p172 ]
28:0172(27)RO
The decision of the Authority follows:


28 FLRA NO. 27

DEPARTMENT OF THE NAVY
PEARL HARBOR NAVAL SHIPYARD
RESTAURANT SYSTEM
PEARL HARBOR, HAWAII

              Activity

         and

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 556, AFL-CIO

              Union/Petitioner

         and

HAWAII FEDERAL EMPLOYEES METAL
TRADES COUNCIL

              Union/Incumbent

Case No. 98-RO-60012

ORDER DENYING APPLICATION FOR REVIEW

I. Statement of the Case

This case is before the Authority on an application filed by the Service Employees International Union, Local 556, AFL - CIO (SEIU) under section 2422.17(a) of the Authority's Rules and Regulations, seeking review of the Regional Director's Decision and Order. The Hawaii Federal Employees Metal Trades Council (HFEMTC) and the Metal Trades Council (MTC) filed oppositions to the application.

II. Background

On June 16, 1986, the SEIU filed a petition seeking an election in a unit of all non-supervisory employees of the Pearl Harbor Naval Shipyard Restaurant System (the Activity). The record indicates that since August 6, 1965, the HFEMTC has been recognized as the exclusive representative of the employees. The Activity and the HFEMTC have been parties to a series of collective bargaining agreements covering the employees in the petitioned-for unit. The most recent agreement was negotiated for a 3-year term, with an effective date of October 26, 1982. prior to the October 25, 1985 expiration date, the parties extended the agreement to October 26, 1986. SEIU is a constituent local of the HFEMTC, acts as administrator of HFEMTC's collective bargaining agreement with the Activity, and is responsible for the representation of the employees in the petitioned-for unit.

SEIU contended that it was entitled to file a petition for exclusive recognition of the unit during the extended term of the HFEMTC-Activity agreement and outside the open period provided for the filing of such a petition in section 7111(f)(3) of the Federal Service Labor - Management Relations Statute (the Statute). In support of its contention, the SEIU asserted that a schism between itself and the HFEMTC existed. As evidence of the asserted schism, the SEIU argued that it was involved in a dispute over the amount of per capita dues it owes the HFEMTC, and another dispute over a HFEMTC requirement that constituents provide monthly listings of members who have tendered dues to the locals. SEIU also expressed a general dissatisfaction with the unit representation arrangement between itself, HFEMTC and the Activity. Additionally, the SEIU argued that because the HFEMTC could designate members of a board appointed by the Shipyard Commander to operate the restaurant system, there was a conflict between the interests of HFEMTC and the interests of the unit employees.

III. Regional Director's Decision

The Regional Director rejected the SEIU's contention that it was entitled to file a petition during the term of the collective bargaining agreement. In addressing the SEIU's assertion that a schism existed, the Regional Director noted the absence of Federal sector decisions on the subject and looked to decisions of the National Labor Relations Board in the private sector. He found that while the Board has held that in certain situations a negotiated agreement does not act as a bar to a representation petition where a schism exists, the existence of a schism depends on two conditions: (1) a basic intra-union conflict over fundamental policy questions within the highest level of an international union or federation; and (2) the conflict causes employees in the local unit to take action, based on the conflict itself, which creates such confusion in the bargaining relationship that stability can only be restored through an election. Hershey Chocolate Corp., 121 NLRB 901 (1958), 42 LRRM 1460.   Additionally, the Regional Director noted private sector case law, where the continuity of a bargaining relationship remains unbroken, no schism is found where a union changes affiliation from one international or federation to another. Rather, in such circumstances, the petitioning faction or union has been held to be in a position substantially the same as that of any rival union which seeks designation as exclusive representative of an activity's employees at an inappropriate time. The Louisville Railway Co., 90 NLRB 678 (1950), 26 LRRM 1261. Further, no schism is found where there is a mere disaffiliation movement within a local union arising from a dispute between the local and its international. Such disputes are held to involve neither the presence of a basic union conflict nor any realignment resulting from a policy conflict. Swift and Co., 145 NLRB 756 (1963), 55 LRRM 1033.

In applying those principles to the SEIU's argument, the Regional Director found that the conflicts asserted by SEIU as evidence of a schism essentially are matters relating to the internal procedures of HFEMTC and not matters involving a fundamental policy dispute at the highest level of an international union or a federation of unions. Further, he found that there is no evidence that any realignment, disaffiliation or expulsion has occurred as a result of any dispute between SEIU and the HFEMTC. The Regional Director also found that no basic intra-union conflict has arisen and there has been no action resulting from such a conflict which has created confusion in the bargaining relationship between HFEMTC and the Activity. Therefore, the Regional Director concluded that no schism exists in the case. Accordingly, the Regional Director dismissed SEIU's petition as untimely filed under section 7111(f)(3)(B) of the Statute.

IV. Application for Review

In its application for review, the SEIU contends that the Regional Director erred in dismissing the petition. The SEIU acknowledges that the HFEMTC is the certified exclusive representative of the employees in the unit. However, the SEIU argues that the Regional Director ignored the fact that it has been the actual bargaining representative. The SEIU also argues that the Regional Director erred in deciding the case on the basis of the absence of a schism and interpreted NLRB precedent on the subject too narrowly. The SEIU, reiterating arguments made before the Regional Director, further asserts that intra-union conflict and confusion in the bargaining unit does exist and that an election is   warranted to eliminate the conflict and confusion. SEIU also maintains that there is a question as to whether the extended agreement was ever approved at a higher level as required by Navy regulations and that in the absence of such approval, the agreement does not bar the petition. Finally, the SEIU contends that as the petition was filed only a short time before the open period, the Regional Director should have held the petition and accepted it on the first day of the open period.

The HFEMTC and MTC in their oppositions contend that the Regional Director correctl