[ v53 p111 ]
The decision of the Authority follows:
53 FLRA No. 17
FEDERAL LABOR RELATIONS AUTHORITY
DIVISION OF MILITARY AND NAVAL AFFAIRS
(NEW YORK NATIONAL GUARD)
LATHAM, NEW YORK
NATIONAL FEDERATION OF CIVILIAN TECHNICIANS
ASSOCIATION OF CIVILIAN TECHNICIANS
DECISION AND ORDER ON REVIEW
June 30, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
I. Statement of the Case
By order dated September 15, 1995, the Authority granted the application for review of the Regional Director's (RD) Decision and Order and Direction of Election, filed by the Intervenor, Association of Civilian Technicians (ACT), in the above-captioned matter.(1) ACT requested review of the RD's decision directing an election based on a petition filed by National Federation of Civilian Technicians (NFCT). The Authority denied ACT's motion to stay the election. Instead, the Authority ordered that the election be held and that the RD impound the ballots pending the Authority's final decision in this matter.
The Authority granted review of the RD's decision based on ACT's allegation that the NFCT is subject to corrupt influences or influences opposed to democratic principles and, therefore, should not be accorded exclusive recognition, under the provisions of section 7111(f)(1) of the Federal Service Labor-Management Relations Statute (the Statute).
On July 2, 1996, the Authority directed the parties to file briefs, and published a notice in the Federal Register giving an opportunity for all interested parties to file briefs as amici curiae, to address certain questions.(2) In response, ACT filed a brief and the General Counsel of the Authority (GC) and the Office of Labor-Management Standards of the Department of Labor (DOL) filed amicus briefs.(3)
For the reasons that follow, we affirm the RD's decision to direct an election in this case.
II. Background and RD's Decision
In 1970, ACT was certified as the exclusive representative of a unit of employees of the Activity, Division of Military Affairs, New York National Guard (NYNG). In this case, NFCT filed a petition seeking an election to represent the NYNG employees currently represented by ACT.(4) ACT asserted that the RD should dismiss NFCT's petition on the basis that NFCT is subject to corrupt influences or influences opposed to democratic principles and, therefore, that NFCT is not entitled to exclusive recognition under section 7111(f)(1) of the Statute, which provides that:
exclusive recognition shall not be accorded to a labor organization--
(1) if the Authority determines that the labor organization is subject to corrupt influences or influences opposed to democratic principles[.]
ACT also filed a complaint under section 7120 of the Statute(5) with the Assistant Secretary of Labor, claiming that by the same allegedly corrupt or anti-democratic conduct, NFCT violated the standards of conduct for labor organizations. On August 25, 1995, DOL notified ACT that the complaint was without merit, and that "[t]he OLMS National Office and the Department of Labor's Office of the Solicitor concur with this decision." Letter attached to NFCT's reply to ACT's application for review at 3.(6)
Prior to the hearing in this case, the RD denied ACT's request that he dismiss NFCT's petition. He concluded that allegations that a union is subject to corrupt influences or influences opposed to democratic principles cannot be adjudicated in a representation proceeding. At the hearing, ACT attempted to introduce evidence bearing on its section 7111(f)(1) allegations, and NFCT objected on the basis of the RD's earlier ruling that such issues may not be adjudicated in a representation proceeding. The hearing officer sustained the objections.
The RD concluded that ACT's allegations against NFCT were within the exclusive jurisdiction of DOL under section 7120 of the Statute. The RD held that, absent a determination by DOL that NFCT is subject to corrupt or anti-democratic influences, there is no basis for the Authority to make any determination pursuant to section 7111(f)(1) or to investigate or adjudicate such allegations in a representation proceeding. The RD concluded that allegations that a labor organization is subject to corrupt influences or influences opposed to democratic principles must be brought under section 7120, and that processing of representation cases under the Statute should not be delayed pending DOL determinations on such allegations.
The RD based these conclusions on his interpretation of both Authority precedent and precedent under Executive Order 11491 (Executive Order), citing Charleston Naval Shipyard, 1 A/SLMR 609 (1970) (Charleston) and Defense Logistics Agency, 5 FLRA 126, 127 (1981) (DLA) as support for his conclusion that any Authority action under 7111(f)(1) must be preceded by a DOL determination under section 7120. The RD stated that this approach is consistent with private sector precedent under the National Labor Relations Act (NLRA), which precludes adjudication in representation cases of disputes that should be considered in an adversarial proceeding in which an accused union is afforded the full spectrum of due process. In addition, the RD concluded that this approach supports the Authority's policy that questions concerning representation must be resolved quickly.
Consistent with his understanding of Charleston and DLA, the RD concluded that when an allegation is made in a representation proceeding that a labor organization is subject to corrupt or anti-democratic influences, the RD must administratively determine whether DOL has found that the labor organization violated the standards of conduct set forth in section 7120. According to the RD, only if there has been such a finding would a petition by an accused labor organization be dismissed. As there was no such determination by DOL that NFCT is subject to corrupt influences or influences opposed to democratic principles, the RD directed an election in this case.
III. Positions of the Parties and Amici
A. ACT's Application for Review and Brief on Review
ACT maintains that the Statute does not permit the Authority to base a section 7111(f)(1) determination solely on the extent to which DOL has acted on a related standards of conduct complaint. ACT contends that the Statute explicitly requires the Authority to determine whether a petitioning labor organization is subject to corrupt influences or influences opposed to democratic principles. In this regard, ACT asserts that the everyday meaning of "determine" as used in section 7111(f)(1) implies "something more concrete than the type of deferral which occurred here." ACT's application for review at 18 (citations omitted). According to ACT, "endless deference to the actions of the Department of Labor will promote the very delay sought to be avoided here." Id. at 20.
Further, ACT argues that the RD's reliance on Executive Order and NLRA precedent is inapposite. In this regard, ACT notes that the Executive Order contained no provision comparable to section 7111(f) of the Statute, and the NLRA contains no comparable provision. ACT contends that, as there are no parallel provisions, precedent under the Executive Order and the NLRA has no bearing on the Authority's statutory obligation to resolve an issue raised under section 7111(f)(1) during the processing of a representation proceeding. ACT argues that the Authority, not DOL, has sole jurisdiction to resolve issues under section 7111(f)(1). Id. at 15.
ACT also claims that it was prejudiced because it was not permitted to submit evidence during the hearing to support its allegations that NFCT is subject to corrupt influences or influences opposed to democratic principles. ACT argues that, because the Statute explicitly requires that the Authority determine whether a petitioning labor organization is subject to corrupt influences or influences opposed to democratic principles, the Authority must conduct an independent evidentiary hearing on its allegations against NFCT in this case.
In its brief on review, ACT argues in addition that the Authority must have prosecutorial discretion so that it can decide how to use its resources. Further, ACT contends that the Authority's decisions regarding section 7111(f)(1) matters involve complex issues of fact and of law that are "particularly unsuited for resolution through non-adversarial processes." Brief on Review at 7. Accordingly, ACT suggests that the use of appropriate administrative safeguards will increase the likelihood that the Authority's decisions regarding 7111(f)(1) issues "will be correct and will withstand review." Id. at 8.
B. NFCT's Opposition
NFCT contends that the RD's determination and his reliance on Executive Order and private sector precedent were correct. NFCT also argues that, even if the Authority determines that allegations of corrupt or anti-democratic influences are properly the subject of a representation hearing, ACT failed to establish a prima facie case. NFCT further asserts that adopting ACT's position would require the Authority to defer every election involving allegations of corrupt influences until a hearing could be held, thereby disrupting the election process and putting a burden on the Authority.
C. GC's Amicus Brief
The GC argues that section 7111(f)(1) should be construed to mean that once DOL or another agency charged with upholding laws relating to the conduct of labor organizations has investigated and made determinations of corrupt practices, the Authority should determine whether these findings, as reviewed by the Authority, warrant denial of exclusive representative status. The GC proposes that the Authority determine on a case-by-case basis whether a labor organization is subject to corrupt or anti-democratic influences only after:
(1) [A] party files an appropriate complaint, on a case by case basis, under an appropriate statute, such as section 7120 of the Statute, the Labor Management Reporting and Disclosure Act (LMRDA), the Racketeer Influenced and Corrupt Organizations Statute (RICO) or through other appropriate criminal or civil court proceedings; and
(2) [A] third party, such as the Assistant Secretary of Labor who administers section 7120 and the LMRDA or the Department of Justice, [which] administers RICO, finds a basis for the alleged violation of law appropriately before it; and
(3) [T]he third party's findings of fact are referred to the Authority in an appropriate proceeding.
GC's brief at 5 (footnotes omitted).(7)
The GC suggests that after a finding of corrupt practices by a third party, the burden should shift to the accused labor organization to furnish evidence to the Authority of its freedom from corrupt or anti-democratic influences. Under this scheme, the Authority would weigh the evidence and, if there were a reasonable basis to conclude that the labor organization violated the law, the Authority could "deny or revoke certification either in an unfair labor practice or a representation proceeding." Id. at 6. As the Statute does not define corrupt influences or influences opposed to democratic principles, the GC suggests that the Authority use section 7120 as an analytical basis for its determination whether to deny or revoke exclusive recognition under section 7111(f)(1). The GC asserts, however, that the Authority is not empowered to independently investigate allegations that a labor organization is subject to corrupt or anti-democratic influences, because such allegations are based on section 7120. Id. at 13. The GC further suggests that if no complaint has been filed with DOL under section 7120, the Authority should refer the matter to the Assistant Secretary for a factual finding.
D. DOL's Amicus Brief
According to DOL, the language of section 7111(f) places the determination of whether a federal sector union is eligible for exclusive recognition "squarely with the FLRA." DOL's brief at 2. DOL asserts that it has no jurisdiction to make any determination or conduct any investigation into whether a labor organization is corrupt or undemocratic. According to DOL, its regulations implementing section 7120 of the Statute conform to the LMRDA, which has no provisions for finding that unions in the private sector are corrupt or undemocratic. Further, DOL states that neither the Statute nor the LMRDA authorize DOL to preclude a public sector labor organization from serving as an exclusive representative because it is "corrupt" or "undemocratic." Id. at 4. Thus, DOL contends that matters concerning exclusive recognition are within the sole jurisdiction of the Authority under sections 7111 and 7112 of the Statute.
IV. Analysis and Conclusions
This is a case of first impression concerning section 7111(f)(1) of the Statute. The Authority has not previously issued a decision involving this section, and the legislative history of the Statute sheds no light on the appropriate interpretation and application of the section. Further, the predecessor to the Statute, Executive Order 11491, contained no equivalent to section 7111 and the NLRA has no similar provision.(8) However, both sections 7120(b) and 7111(f)(1) contain similar prohibitions on corrupt and anti-democratic influences in Federal sector labor organizations.(9) Consistent with the "whole statute" principle of statutory construction, the meaning of an individual section of a statute is determined in reference to the entire statutory scheme. Sutherland, Stat. Const. § 46.05 (5th Ed.). That is, "all sections of an act relating to the same subject matter should be considered together unless to do so would be plainly contrary to the legislative intent. Insofar as possible; the separate effect of each individual part or section of an act is made consistent with the whole." Id. at § 47.06. Guided by this principle, we interpret our obligations concerning claims filed under section 7111(f) as discussed below.
A. The Authority Makes Determinations Concerning Exclusive Recognition under Section 7111(f)(1) of the Statute
It is unquestioned that only the Authority has jurisdiction to decide issues relating to the granting of exclusive recognition to labor organizations representing employees in the Federal sector. Section 7111(f)(1) states that exclusive recognition shall not be accorded to a labor organization if the Authority determines that the labor organization is subject to corrupt influences or influences opposed to democratic principles. Thus, freedom from corrupt and anti-democratic influences is a requirement that must be met before the Authority can certify a labor organization as an exclusive representative.
B. Framework for Deciding Challenges to Exclusive Recognition Under Section 7111(f)(1) of the Statute
1. A Labor Organization Is Presumed Free from Corrupt and Anti-Democratic Influences
The Statute does not define the terms "corrupt influences" or "influences opposed to democratic principles" in either section 7111(f) or section 7120. However, section 7120(a) establishes a presumption that a labor organization is free from corrupt and anti-democratic influences if the union is subject to governing requirements that meet specified standards. This is a rebuttable presumption; section 7120(b) provides that, regardless of whether a union has subscribed to standards of conduct as provided in subsection (a), it must furnish evidence of freedom from corrupt and anti-democratic influences if there is reasonable cause to believe that the union: (1) has been suspended or expelled from an international union or federation of unions because of a demonstrated unwillingness to comply with proper governing requirements; or (2) is, in fact, subject to influences that are corrupt or opposed to democratic principles.
For purposes of proceedings before the Authority to resolve a challenge under section 7111(f)(1), and consistent with the "whole statute" principle of statutory construction, we will henceforth apply the presumption established in section 7120(a)--that a labor organization subject to certain delineated governing standards is free from corrupt and anti-democratic influences--which may be rebutted by establishing reasonable cause as provided in section 7120(b). We do so based on the factors noted above: (1) the similarity of language and subject matter in section 7111(f)(1) and section 7120; (2) the absence of any definition of "corrupt influences" or "influences opposed to democratic principles" within the context of either section; and (3) the absence of any indication that the two sections should be construed differently. Moreover, a review of the DOL regulations on Substantive Requirements Concerning Standards of Conduct, 29 C.F.R. Part 458, leads to the conclusion that section 7120 envelops the corrupt or anti-democratic influences referenced in section 7111(f)(1).(10) In these circumstances, it is reasonable to assume that Congress intended the Authority to look to section 7120 when determining whether a labor organization is presumed free from corrupt and anti-democratic influences or whether that presumption has been rebutted. If a party establishes reasonable cause to rebut the presumption, the Authority would then determine whether the labor organization is rendered ineligible to serve as an exclusive representative under section 7111(f).
In a section 7111(f)(1) proceeding, the presumption in section 7120(a) attaches if the labor organization is subject to the governing requirements set out in section 7120(a)(1) through (4). This may be demonstrated by submission of a constitution and bylaws that meet the criteria set forth in section 7120(a).(11)
2. Reasonable Cause May Be Established to Rebut the Presumption that a Labor Organization is Free From Corrupt and Anti-democratic Influences
The presumption that a labor organization is free from corrupt and anti-democratic influences, established by meeting the requirements of section 7120(a), may be rebutted by a showing that there is reasonable cause to believe that the labor organization is not free from such influences. As noted above, the standards for rebutting the presumption are set forth in section 7120(b). Under section 7120(b), the presumption may be rebutted based on reasonable cause to believe that: (1) the organization was suspended or expelled from, or was otherwise sanctioned by, a parent organization, or federation of organizations with which it had been affiliated, based on its demonstrated unwillingness or inability to comply with the governing procedures set out in 7120(a)(1) through (4); or (2) the labor organization is in fact subject to corrupt or anti-democratic influences. Based on the standards in section 7120 and the Authority's exclusive jurisdiction over representation matters, we have developed the following guidelines for analyzing whether, under section 7111(f)(1), the requisite reasonable cause has been established to rebut the presumption that the labor organization is free from corrupt and anti-democratic influences.
a. A Finding By A Third Party With Jurisdiction Over the Allegations Asserted To Establish Corrupt Or Anti-Democratic Influences May Establish Reasonable Cause for the Authority to Proceed With the Section 7111(f)(1) Claim
Where another agency or entity has jurisdiction over the matter asserted to establish the requisite reasonable cause, the Authority will look to the disposition of charges or claims before such third party in determining the labor organization's eligibility to be accorded exclusive recognition. Relying on third party findings will allow us to conserve resources, take full advantage of the expertise of the third party, and administer the Statute in a comprehensive manner, as intended by Congress.
In this case, the ACT's allegations were also the basis for a section 7120 complaint filed with DOL. The mandate of section 7120 and the applicable regulations suggest that most charges of conduct involving corrupt influences or influences opposed to democratic principles are encompassed by DOL's enforcement of standards of conduct.(12) Where, as in this case, the charges are so encompassed, the need to avoid duplication of proceedings and ensure expeditious representation case processing leads us to conclude that, in determining whether reasonable cause has been established to proceed on a charge raised under 7111(f)(1), the Authority will rely on the findings of DOL concerning conduct that is the same or similar to conduct set forth in section 7120.(13)
Accordingly, if a third party with jurisdiction over the conduct alleged to establish the requisite reasonable cause finds a violation based on the same facts raised by the section 7111(f)(1) challenge, the Authority will accept that finding as evidence that there is reasonable cause to believe that the presumption of freedom from corrupt and anti-democratic influences has been rebutted. In such circumstances, consistent with the requirements of section 7120(b), the labor organization must furnish evidence to the RD of its freedom from such influences. See Section IV.B.3, below.
b. Dismissal By a Third Party, Such as DOL, Will Suffice to Establish the Absence of Reasonable Cause to Believe That Denial of Certification Is Required Under Section 7111(f)(1)
If the third party with jurisdiction over the conduct alleged to establish reasonable cause dismisses the charge before it, the Authority will accept this as evidence that reasonable cause does not exist to overcome the presumption that the labor organization is free from corrupt and anti-democratic influences. In such circumstances, the Authority will proceed accordingly.
c. The Authority Will Stay Its Proceedings When a Case Is Pending Before a Third Party That Is Based on the Same or Substantially Similar Allegations That Support the Section 7111(f)(1) Claim
In matters subject to a third party's jurisdiction, if a complaint is pending before such a third party at the time a section 7111(f)(1) challenge is filed, the Authority will stay its proceedings pending disposition of the third-party proceeding.(14) Similarly, if allegations concerning corrupt or anti-democratic influences are filed only with the Authority and are, in the RD's view, subject to a third party's jurisdiction, the RD should instruct the party filing the claim to first obtain a disposition of those matters that are within the third party's jurisdiction. The RD may also explain that, in so doing, the filing party should present its claim to the third party in a manner that is acceptable in that forum. For example, if the matter lies within the jurisdiction of DOL, the filing party should present the claim with the Assistant Secretary as a standards of conduct violation under section 7120, rather than as a claim of corrupt and anti-democratic influences.
If such third party action is initiated within a reasonable time, the Authority will stay any underlying representation petition until a decision is rendered.(15) If such action is not initiated with the third party within a reasonable time, the Authority, where appropriate, will apply the presumption contained in section 7120 and proceed accordingly.
3. When Reasonable Cause Is Established to Believe that a Labor Organization Is Subject to Corrupt or Anti-Democratic Influences, the Burden of Proof Shifts to the Accused Labor Organization
Where it has been established that there is reasonable cause to believe that a labor organization is subject to corrupt or anti-democratic influences, the burden of proof under section 7111(f) shifts to the accused labor organization to demonstrate that it is, in fact, free from influences that would preclude recognition. In such cases, the Authority will determine whether the evidence shows that a labor organization has met this burden by demonstrating, for example, that: (1) the violation found by a third party has been cured (for example, that sanctions imposed by a parent organization have been lifted); or (2) the violation found by a third party is in effect de minimis and thus is insufficient to warrant denial or revocation of certification.(16)
V. Application of Analytical Framework to This Case
It is undisputed in this case that there is a presumption that NFCT is free from corrupt and anti-democratic influences. Therefore, the threshold issue is whether reasonable cause has been established to rebut that presumption. As discussed above, the Authority will not further examine claims that a union is subject to such influences if DOL has dismissed similar allegations subject to its jurisdiction under section 7120.(17)
In view of DOL's dismissal of ACT's claims in the section 7120 proceeding, we find no reasonable cause to believe that the Petitioner is subject to influences that would preclude its certification. Accordingly, there is no basis for further Authority proceedings to determine whether the Petitioner should be denied the opportunity to be accorded exclusive recognition on the ground that it is subject to corrupt or anti-democratic influences. Therefore, we direct the RD to resume processing the representation petition with the understanding that the Petitioner will be eligible to serve as the exclusive representative if it wins the election. Accordingly, we remand the case to the RD, with instructions to open and count the impounded ballots, and to take appropriate action based on the outcome.
Finally, there is no merit to ACT's contention that it was prejudiced because it was not allowed to present evidence at the hearing to support its claim that NFCT is subject to corrupt and anti-democratic influences. We have found that by reason of DOL's dismissal of the allegations brought under section 7120, reasonable cause has not been established to believe that NFCT is subject to such influences. Therefore, NFCT is not required to prove before the Authority that it is not subject to such influences. Accordingly, in view of our finding that the Authority will not proceed when, as here, a third party with jurisdiction has dismissed the same allegations, we find no merit in ACT's assertion of prejudice.
This case is remanded to the Regional Director to take appropriate action consistent with this decision.
Questions published in the Federal Register on July 5, 1996:
1. In making the required determination under section 7111(f)(1) of the Statute, should the Authority rely on the investigation conducted by the Assistant Secretary of Labor pursuant to section 7120, or should the Authority conduct its own investigation?
2. If the Authority relies on investigations conducted by the Assistant Secretary:
a. What procedures should be used (e.g., should any pending authority proceedings be placed in abeyance pending the Assistant Secretary's final action; should the Authority's regional director examine the Assistant Secretary's findings in a hearing)?
b. How should the Authority proceed if no complaint has been filed with the Assistant Secretary under section 7120(d)?
c. Should the Authority defer to the Assistant Secretary's findings and conclusions? What standard of review should be applied in reviewing such findings and conclusions?
3. If the Authority conducts its own investigation:
a. What procedures should be used (e.g., should the determination be made in an adversarial or nonadversarial proceeding)?
b. What criteria should be applied to determine whether a labor organization is subject to corrupt influences or influences opposed to democratic principles?
4. Do the answers to these questions depend on whether, at the time the section 7111(f) issue is raised
a. a petition has been filed seeking to represent a unit that has no current exclusive representative;
b. a petition has been filed seeking to decertify an exclusive representative, or;
c. There is an exclusive representative and no representation
Section 7120 provides, in pertinent part:
§ 7120. Standards of conduct for labor organizations
(a) An agency shall only accord recognition to a labor organization that is free from corrupt influences and influences opposed to basic democratic principles. Except as provided in subsection (b) of this section, an organization is not required to prove that it is free from such influences if it is subject to governing requirements adopted by the organization or by a national or international labor organization or federation of labor organizations with which it is affiliated, or in which it participates, containing explicit and detailed provisions to which it subscribes calling for--
(1) the maintenance of democratic procedures and practices including provisions for periodic elections to be conducted subject to recognized safeguards and provisions defining and securing the right of individual members to participate in the affairs of the organization, to receive fair and equal treatment under the governing rules of the organization, and to receive fair process in disciplinary proceedings;
(2) the exclusion from office in the organization of persons affiliated with communist or other totalitarian movements and persons identified with corrupt influences;
(3) the prohibition of business or financial interests on the part of organization officers and agents which conflict with their duty to the organization and its members; and
(4) the maintenance of fiscal integrity in the conduct of the affairs of the organization, including provisions for accounting and financial controls and regular financial reports or summaries to be made available to members.
(b) Notwithstanding the fact that a labor organization has adopted or subscribed to standards of conduct as provided in subsection (a) of this section, the organization is required to furnish evidence of its freedom from corrupt influences or influences opposed to basic democratic principles if there is reasonable cause to believe that--
(1) the organization has been suspended or expelled from, or is subject to other sanction, by a parent labor organization, or federation of organizations with which it had been affiliated, because it has demonstrated an unwillingness or inability to comply with governing requirements comparable in purpose to those required by subsection (a) of this section; or
(2) the organization is in fact subject to influences that would preclude recognition under this chapter.
. . . .
(d) Complaints of violations of this section shall be filed with the Assistant Secretary. In any matter arising under this section, the Assistant Secretary may require a labor organization to cease and desist from violations of this section and require it to take such actions as he considers appropriate to carry out the policies of this section.
(If blank, the decision does not have footnotes.)
1. The petition in this case was filed under the Authority's Regulations in effect prior to March 15, 1996. The revised representation Regulations that became effective on that date apply only to petitions filed on or after March 15, 1996, and, therefore, do not apply in this case. See Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 938 n.6 (1996).
2. 61 Fed. Reg. 35,211 (July 5, 1996). The questions appear in Appendix A.
3. ACT moved for permission to file a response to the GC's brief. Section 2422.17(g) of the Authority's Regulations that apply to the petition herein (see note 1 above) provides in pertinent part: "Except where the Authority rules upon the issue(s) in the order granting review, the parties may, within ten (10) days after issuance of an order granting review, file briefs with the Authority." However, there is no provision in the regulations for the filing of a response brief as requested here. Section 2429.26 of the Regulations provides that the Authority may, in its discretion, grant leave to file "other documents" as deemed appropriate. In the circumstances, we determine that the parties have had ample opportunity to state their positions and reply briefs are not necessary. Therefore, the motion is denied.
ACT's motion referred to a brief it received on July 30, 1996, from the Petitioner. We have determined that no such brief was filed with the Authority's Office of Case Control.
4. NFCT's petition and ACT's challenge to NFCT's eligibility for exclusive recognition are the culmination of disputes and legal proceedings over a period of years. Initially, a dispute arose between ACT and the officers of the New York Council of ACT Chapters (NYACT), which was ACT's agent. As a result, in 1992 the leadership of NYACT formed NFCT, and in March 1992 the membership of NYACT voted to disaffiliate from ACT and to affiliate with NFCT. NFCT then filed a petition seeking to amend the certification by changing the name of the exclusive representative from ACT to NFCT based on the change of affiliation vote. That petition was dismissed by the RD, and the Authority denied NFCT's application for review. 46 FLRA 1468 (1993). In the petition now before us, NFCT seeks exclusive recognition through a representation election.
5. The pertinent portions of section 7120 appear in Appendix B.
6. ACT also filed an unfair labor practice charge alleging violations of 7116(b)(1), (2) and (8) of the Statute. The RD found that those allegations were also the subject of ACT's 7111(f)(1) "challenge" in this RO proceeding. That charge was dismissed (BN-CO-50395, April 10, 1995), and an appeal of the dismissal to the General Counsel was denied on February 29, 1996.
7. The LMRDA is reported as Public L. No. 86-257, 73 Stat. 519-46 (codified as amended at 29 U.S.C. §§ 401-531 (1988)). RICO is Title IX of the Organized Crime Control Act of 1970, Public L. No. 91-452, 84 Stat. 941 (codified as amended at 18 U.S.C. §§ 1961-68 (1988)).
8. To the extent that private sector practices are instructive, we note that even though the NLRA does not provide that labor organizations must be free from corrupt and anti-democratic influences as a condition of certification, the National Labor Relations Board has, on occasion, revoked a union's certification where it has been shown that it was not meeting its responsibilities as exclusive representative. In such cases, the Board has acted on the theory that, having issued a certification, it has the power to police and revoke the certification on good cause shown. Alto Plastics Manufacturing Corporation, 136 NLRB 850, 853 (1962). See also A. O. Smith Corporation, 119 NLRB 621 (1957) (Board revoked certification on its own motion after employees had been deprived by petitioners of their franchise and right to representation).
9. As relevant here, section 7120 differs from section 7111(f)(1) only in that it uses the phrase "corrupt influences and influences opposed to basic democratic principles" to describe prohibited conduct, while section 7111(f)(1) omits the modifier "basic." As no reason is alleged or apparent for construing these phrases in the two sections differently, we attribute to them the same meaning. Hereafter, both are referred to as "corrupt and anti-democratic influences."
10. Section 7120 specifies that DOL shall prescribe the regulations necessary to carry out "the purposes of this section" and also requires that the regulations conform to the "principles" of the standards applied to unions in the private sector. DOL's regulations set forth virtually the identical enforcement scheme for violations of the Statute's union democracy provisions as apply to violations of the LMRDA. Local 1219, American Federation of Government Employees v. Donovan, 683 F.2d 511, 515 n.15 (D.C. Cir. 1982). Moreover, those regulations require that "[i]n applying the standards contained in this subpart the Assistant Secretary will be guided by the interpretations and policies followed by the Department of Labor in applying the provisions of the LMRDA and by applicable court decisions." 29 C.F.R. § 458.1. Congress passed the LMRDA to ensure that elections "would remain free from the abusive and corrupt influences which plagued the unions for years. Thus, the Act's ultimate goal was to provide for 'free and democratic' elections[.]" Brock v. Local 150, United Paperworkers International, 670 F. Supp. 213, 216 (N.D. Ohio 1986), quoting Wirtz v. Hotel, Motel & Club Employees Union, 391 U.S. 492 (1968). Clearly, regulations governing a finding in a section 7120 proceeding, which is based on the LMRDA model, would be pertinent to a section 7111(f)(1) challenge before the Authority.
11. Section 7111(e) of the Statute provides that a labor organization seeking exclusive recognition must submit to the Authority a copy of its constitution and bylaws.
12. For example, corrupt or anti-democratic influences within a labor organization could lead to election irregularities, the raising of dues without members' permission, or expulsion from membership without due process. Any of these alleged infractions could, in turn, provide the basis for a DOL standards of conduct complaint alleging a violation of the bill of rights of members of labor organizations, 29 C.F.R. § 458.2, and could result in a section 7120 violation. Thus, although DOL does not make determinations as to whether a union is subject to corrupt and anti-democratic influences so as to preclude the union from serving as an exclusive representative under section 7111(f)(1) of the Statute, DOL's investigations and findings regarding standards of conduct violations under section 7120 will in most instances encompass allegedly corrupt or anti-democratic activity. Cf. AFGE v. FLRA, 834 F.2d 174, 177-78 (D.C. Cir. 1987) (although Authority has exclusive jurisdiction to adjudicate unfair labor practice charges, the Assistant Secretary of Labor and the FLRA have concurrent jurisdiction to administer section 7120).
13. Although we anticipate that most claims asserted under section 7111(f)(1) will, like the claim at issue here, present allegations that also may be asserted as a standards of conduct violation within the jurisdiction of DOL, we recognize that some may not implicate section 7120. For example, the General Counsel suggests that proceedings under RICO may also provide a basis for finding reasonable cause to proceed with a section 7111(f)(1) allegation. Applying the approach we adopt today with regard to charges within the jurisdiction of DOL, the Authority would rely in such cases on the findings of the third party with jurisdiction over the underlying claim. In other cases, it may be appropriate for the Authority to look to other proceedings under the Statute, such as Authority unfair labor practice decisions finding violations of section 7116(b)(1) based on persistent, pervasive violations of the duty of fair representation or other conduct by the accused labor organization that is incompatible with exclusive recognition. In establishing procedures for deciding all such issues, we will be guided by the importance of avoiding duplication of proceedings and unwarranted delay in the processing of representation cases. In the event that claims are presented to us that are not subject to another third party's jurisdiction, or cognizable in an existing proceeding, we will address at that time the appropriate procedures to follow in resolving the issues in dispute.
14. Where appropriate, the Authority may direct that an election be held and the ballots be impounded pending the third party's determination and the pending Authority decision under section 7111(f)(1). This will ensure that the vote reflects the wishes of the bargaining unit at a time sufficiently proximate to the filing of the petition to preserve the rights of the employees under section 7102 of the Statute as well as the rights of the accused union should the Authority ultimately determine that it is not subject to corrupt or anti-democratic influences.
15. Because of the damage to representation rights that can be caused by delay in processing a representational petition, however, the Authority will not stay section 7111 proceedings pending enforcement of a DOL decision under 5 C.F.R. Part 2428 or pending court review. The Authority also will not stay its section 7111(f) proceedings pending third party action if it is clear that even if the facts alleged were true, they would not support a finding of corrupt or anti-democratic influences sufficient to render the labor organization ineligible to serve as the exclusive representative. The RD would base such a conclusion on a determination that a challenge is frivolous on its face or that the documentary evidence establishes that any violation would be de minimis or has been cured. See section IV.c.3 below.
16. In light of our disposition of this case, it is not necessary at this time to elaborate on the specific procedures the Authority will use to determine whether a labor organization has satisfied this burden.
17. We note that among the protections provided in DOL's regulations governing standards of conduct proceedings is the right to appeal a DOL regional director's dismissal of a complaint to the Assistant Secretary. 29 C.F.R. § 458.59. In the instant case, the record does not establish that an appeal was taken. Moreover, the dismissal letter by the DOL regional director noted concurrence by the OLMS National Office and the Office of the Solicitor of Labor. Therefore, there is no section 7120 action currently pending.