[ v51 p969 ]
The decision of the Authority follows:
51 FLRA No. 78
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES/
SERVICE EMPLOYEES INTERNATIONAL UNION
SERVICE EMPLOYEES INTERNATIONAL UNION
U.S. DEPARTMENT OF VETERANS AFFAIRS
ORDER GRANTING IN PART AND DENYING IN PART AN
APPLICATION FOR REVIEW
March 15, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This case is before the Authority on an application for review of the Regional Director's (RD's) decision dismissing a petition for amendment of certification. The application for review was filed by the parties that jointly petitioned for the amendment (the joint petitioners): the National Association of Government Employees/Service Employees International Union, Local 5000 (NAGE/SEIU or NAGE) and the Service Employees International Union (SEIU). The amendment of certification sought by the petition would transfer a group of employees from a bargaining unit for which SEIU is the exclusive representative to a unit for which NAGE is the exclusive representative. The Agency maintained a "neutral position" regarding the petition in proceedings before the RD, and has filed no submissions with the Authority. RD's Decision at 3.
For the reasons set forth below, we grant the application for review in part and deny it in part.
II. Background and RD's Decision
In 1978, the National Association of Government Employees was certified as the exclusive representative of a nationwide, consolidated bargaining unit composed of certain nonprofessional employees of the Agency. In 1982, the National Association of Government Employees affiliated with SEIU and became NAGE/SEIU. SEIU "has jurisdiction over NAGE." RD's Decision at 3. Currently, NAGE represents approximately 10,200 nonprofessional employees in this unit.
Since 1980, SEIU has represented a nationwide, consolidated bargaining unit of other nonprofessional employees of the Agency, including approximately 900 employees at the Agency's Medical Center in San Diego, California, who are represented by SEIU Local 102. There are approximately 9,800 employees in SEIU's consolidated unit. SEIU, Local 102 and the Agency's Medical Center in San Diego are parties to a collective bargaining agreement, and employees in the unit file grievances under the agreement.
The joint petitioners seek to "sever" the San Diego Medical Center employees from SEIU's consolidated unit and include them in NAGE's consolidated unit. Id. at 3 n.4. The petition was filed after a "special meeting" was held among SEIU Local 102 members, at which the sole subject was the transfer of affiliation from SEIU to NAGE. All SEIU Local 102 members were invited to the meeting. Following a discussion of the issue of the transfer of affiliation, a total of five members voted unanimously, by secret ballot, to transfer representation from SEIU to NAGE.(1)
The RD dismissed the petition on the ground that the joint petitioners had failed to establish the "unusual circumstances" necessary under Authority case law to justify severance of employees from a bargaining unit. Id. at 7.
III. Application for Review
NAGE's application for review alleges that review of the RD's decision is warranted under section 2422.17(c)(1), (3), and (4) of the Authority's Regulations.(2)
First, NAGE asserts that this is a case of first impression and the Authority should "examine the petition as a reorganization of SEIU, with the goal of providing more resources and federal experience to the employees at the San Diego Medical Center." Application at 7. NAGE also asserts that, if the Authority analyzes the case using severance principles, then "unusual circumstances exist which support severance . . . ." Id. at 6.
Second, NAGE contends that review of the RD's decision is warranted because the hearing officer's ruling denying joint petitioners' motion to strike certain testimony resulted in prejudicial error. NAGE asserts that the Agency "clearly and consistently indicated its neutrality in this matter and . . . did not object to a transfer of recognition . . . from SEIU to NAGE." Id. at 15. As such, NAGE contends that the hearing examiner erred in questioning an Agency representative at the representation hearing whether the transfer of recognition would promote effective dealings with the Agency. According to NAGE, the hearing officer's ruling denying its motion to strike the representative's response was prejudicial because the RD relied on the response in finding that severance would not promote efficient operations of the Agency.
Third, NAGE contends that review of the RD's decision is warranted because the RD's decision on certain factual issues is clearly erroneous and resulted in prejudicial error affecting joint petitioners' rights. Specifically, NAGE claims that the RD's findings "concerning lack of evidence supporting partnership probability, NAGE/SEIU representation in the Federal sector and effective dealings with, and efficiency of operations of, the Agency, are clearly erroneous and affected the rights of NAGE/SEIU and SEIU." Id. at 16.
IV. Analysis and Conclusions
A. Review of the RD's Decision is Warranted on the Ground of an Absence of Authority Precedent
Although no Authority precedent is cited or apparent for resolving the petition as seeking a union reorganization, it is clear that the requested outcomes of the petition are to: (1) sever the San Diego employees from the SEIU consolidated bargaining unit and (2) accrete those employees to the NAGE consolidated unit. There is substantial Authority precedent setting forth the principles for resolving petitions seeking these outcomes. E.g., U.S. Department of the Treasury, Bureau of Engraving and Printing, 49 FLRA 100, 106-07 (1994) (Treasury) (discussing severance principles); U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 47 FLRA 602, 611 (1993) (discussing accretion principles). Joint petitioners seek recognition of the uniqueness of their situation and highlight that none of the Authority's precedent was developed or applied in a situation where both unions affected by the petition agree on the outcomes sought by the petition. However, it is unclear, and petitioners do not suggest how such agreement should affect the principles the Authority has used to determine whether a petition such as this should be granted.
In view of the foregoing, and noting that Treasury provides support for considering new factual situations as presenting grounds for granting an application for review under section 2422.17(c)(1) of our Regulations, we grant the application for review on the ground that there is an absence of precedent on the following issues:
1. Should the facts that the joint petitioners agree that the San Diego employees should be severed from the SEIU unit and included in the NAGE unit, and/or that the agency does not oppose such agreement, be considered in resolving the petition in this case?
2. If those facts are considered, what principles should be used to determine whether to grant the petition?
(a) As to severance, for example, should SEIU's agreement be accorded the same effect as the disclaimer in Treasury?(3)
(b) As to accretion, for example, should the joint petitioners' agreement be considered dispositive in light of the Agency's neutral position? Are there any circumstances that would override the agreement? Are there any circumstances in which an election should be directed?
3. If the petition were to be granted, would the resulting units continue to be appropriate within the meaning of section 7112 of the Statute?
B. The Application for Review as to Other Matters is Denied
Contrary to NAGE's claim, there is no evidence in the record that the RD relied in any way on the exchange between the hearing officer and the Agency representative in this case. Moreover, the record suggests to the contrary. The RD specifically acknowledged, in this regard, that the Agency maintained a "neutral position" with respect to the petition. RD's Decision at 3. Further, although the RD found that the record suggested that granting the petition would not better promote effective dealings with the Agency, the RD based his finding on "[t]he fact that the Agency has taken a neutral position on this issue and on the instant petition"--not on an answer of an Agency representative to a question from the hearing officer. Id. at 9. In these circumstances, there is no basis on which to conclude that the hearing officer's ruling resulted in prejudicial error. Accordingly, no compelling reasons for reviewing this aspect of the RD's decision have been established under section 2422.17(c)(3) of the Authority's Regulations.
The petitioners also have not demonstrated that the disputed RD findings are clearly erroneous. Instead, the RD's findings on these matters are fully consistent with the record. As a result, petitioners have not demonstrated that review of the RD's decision is warranted under section 2422.17(c)(4) of the Authority's Regulations.
The parties are directed to file briefs before the close of business on Friday, April 19, 1996, on the issues set forth above.(4) Other interested persons may file briefs as amicus curiae on these issues within the same period. Briefs should be directed to:
James H. Adams
Acting Director, Case Control Office
Federal Labor Relations Authority
607 14th Street, NW., Room 415
Washington, D.C. 20424-0001
(If blank, the decision does not have footnotes.)
1. Although it is clear that this case does not involve only a name change, it appears that joint petitioners used the same procedures applicable when a union seeks to effect a name change to conform to a change in affiliation. See Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 859 (1974), review denied, 3 FLRC 259 (1975) (Montrose). The Authority has explained that, under Montrose, the following procedures must be followed to ensure that an amendment of certification conforms to the desires of a union's membership:
(1) A proposed change in affiliation should be the subject of a special meeting of the members of the incumbent labor organization, called for this purpose only, with adequate advance notice provided to the entire membership; (2) the meeting should take place at a time and place convenient to all members; (3) adequate time for discussion of the proposed change should be provided, with all members given an opportunity to raise questions within the bounds of normal parliamentary procedure; and (4) a vote by the members of the incumbent labor organization on the question should be taken by secret ballot, with the ballot clearly stating the change proposed and the choices inherent therein.
Florida National Guard, St. Augustine, Florida and National Association of Government Employees, Local R5-120, SEIU, 34 FLRA 223, 227 (1990).
2. Section 2422.17(c)(1), (3), and (4), provides:
The Authority may grant an application for review only where it appears that compelling reasons exist therefor. Accordingly, an application for review may be granted only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, Authority precedent;
. . . .
(3) That the conduct of the hearing held or any ruling made in connection with the proceeding has resulted in prejudicial error; or
(4) That the Regional Director's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of a party.
3. There is no suggestion in this case that SEIU would disclaim interest in representing the San Diego employees if the petition is dismissed.
4. By notice to be published in the Federal Register on March 22, 1996, we have invited other interested persons to file briefs as amicus curiae on these issues.