51:1254(99)DR - - Naval Air Station, Fallon, NV and James Hall and International Association of of Fire Fighters, Local F-268 - - 1996 FLRAdec RP - - v51 p1254

[ v51 p1254 ]
The decision of the Authority follows:

51 FLRA No. 99














(Incumbent Labor Organization/Intervenor)




April 30, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

On January 2, 1996, the Authority issued a procedural order (Order) dismissing an application for review of the Regional Director's (RD's) approval of the petitioner's request to withdraw his petition in this decertification case. A motion for reconsideration of the Order was filed by Brook Beesley (the applicant), a "designated representative" of Mark Rubert, who is asserted to be president of the International Association of Fire Fighters, AFL-CIO, CLC, Local F-268 (the Local), the incumbent exclusive representative and intervenor in this case. Motion for Reconsideration at 1. No opposition to the motion for reconsideration was filed.

We have reviewed the RD's action sua sponte and, for the following reasons, conclude that there has been no demonstration that the RD erred in approving the petitioner's request to withdraw his petition.

II. Background

The Local is the exclusive representative of certain employees of the Naval Air Station Fallon, Fallon, Nevada. A petition was filed by James Hall, an individual, seeking an election to decertify the Local. Balloting took place on June 9, 1995.(1) The tally was 13 for decertification and 22 against. The ballots of 11 employees were challenged, a number sufficient to affect the outcome of the election. A hearing on the voting eligibility of the challenged employees was scheduled for August 2.

On August 2, the parties reached an agreement that 6 of the 11 employees were eligible to vote, and agreed to open and count the 6 ballots and to proceed to the hearing only if the unresolved challenges would still be sufficient to affect the outcome of the election. After the parties counted the 6 ballots, the revised tally was 18 for decertification and 23 against. The 5 remaining challenged ballots were sufficient to affect the outcome of the election.

On August 3, petitioner Hall submitted a request to withdraw his petition. On August 7, the RD approved Hall's withdrawal request. On the same date, the applicant wrote to the RD on behalf of Rubert, requesting that the RD disapprove the withdrawal request. The applicant contended that a letter from Greg Zuniga, as the president of the Local, to Hall, which led to Hall's request to withdraw his petition, was invalid because Rubert is the real president of the Local, and its "only authorized representative of record." Application, Enclosure 3.

On August 11, the RD responded to the applicant's letter. The RD noted that because she had already approved the petitioner's request to withdraw the petition by the time she received the applicant's letter, she was considering the letter as a request to rescind the approval of the withdrawal of the petition. The RD stated that as a petitioner is free to seek withdrawal of a representation petition at any time during its processing, the applicant's letter provided no basis for rescinding the approval of Hall's request to withdraw his petition. The RD also stated that to the extent that the applicant's letter indicated the existence of a dispute regarding who is the current president of the Local, such a dispute was a matter of internal union business, to be addressed through appropriate procedures within the union. Finally, the RD noted that she had a letter dated July 28, addressed to Rubert and Zuniga from the president of the International Association of Fire Fighters (IAFF), the Local's parent labor organization, designating Zuniga as the Local's president.

On September 27, the applicant filed his application for review "of the [RD's] 'Decision' and/or 'making other disposition of the matter' to approve petitioner withdrawal[.]" Application at 1. On October 25, the Authority issued an Order to Show Cause why the application for review should not be dismissed. The order noted that no provision in the Authority's Regulations authorizes a party to file an application for review of an RD's approval of an individual's request to withdraw his or her representation petition.(2) In response, the applicant argued that section 2422.16(a) of the Regulations provides that, where the RD "mak[es] other disposition of the matters before the Regional Director," the RD's decision is final. Submission at 3-4. According to the applicant, the RD's final decision to approve the petitioner's request to withdraw his petition is subject to review under section 2422.17.

The Authority's Order, dated January 2, 1996, stated that the applicant had failed to meet the requirements for review under section 2422.17(a) of the Authority's Regulations and dismissed the application. In so doing, the Order rejected the applicant's assertion that because the RD had made "other disposition of the matters" before her, within the meaning of section 2422.16(a), he was entitled to seek review of the RD's action. It explained that section 2422.16(a) applies only in two circumstances, neither of which existed in this case: (1) at the close of a hearing on a petition; and (2) based on the parties' stipulation that no material issues of fact exist. The Order found that the applicable section of the Regulations was section 2422.4(f), which permits an RD either to issue a decision and order, or to approve the withdrawal of a petition, but "not to take both actions simultaneously as they are mutually exc