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53:0999(85)DR - - U.S. Information Agency, Washington, DC and AFGE Local 1812 and Richard A. La Dieu - - 1997 FLRAdec RP - - v53 p999

[ v53 p999 ]
The decision of the Authority follows:

53 FLRA No. 85










(Labor Organization)







December 18, 1997


Before the Authority: Phyllis N. Segal, Chair, Donald S. Wasserman and Dale Cabaniss, Members.(1)

I. Statement of the Case

Previously, the Authority granted in part and denied in part an application for review filed by Petitioner under section 2422.17(c)(1) and (2) of the Authority's Regulations.(2) The Petitioner requested review of the Washington Regional Director's (RD's) decision and order dismissing his petition that sought the "decertification" of both the American Federation of Government Employees (AFGE) and AFGE, Local 1812, as exclusive representatives under the Federal Service Labor-Management Relations Statute (the Statute).(3)

Review was granted on one issue: the appropriate procedures for resolving claims, raised in representation proceedings, that a labor organization should be decertified under 5 U.S.C. § 7111(f) of the Statute.(4) Subsequently, the Authority issued a decision that described the procedural framework that it would apply to such cases. Division of Military and Naval Affairs, New York National Guard, Latham, New York, 53 FLRA 111 (1997) (New York National Guard). We apply this framework here and, for the reasons explained below, dismiss the case because the Petitioner has not established reasonable cause to believe that the labor organization is subject to corrupt influences or influences opposed to democratic principles.

II. Background and RD's Decision

Petitioner filed the instant petition seeking the decertification of AFGE and its local union at the Agency, AFGE, Local 1812. The Petitioner asserted that both organizations were subject to corrupt or anti-democratic practices and, therefore, should not be accorded exclusive recognition pursuant to section 7111(f)(1).(5) The record reflects that the Petitioner also brought these allegations of corrupt or anti-democratic practices to the attention of the United States Department of Labor (DOL), which has jurisdiction to consider allegations that labor organizations have violated certain standards of conduct. See 5 U.S.C. 7120.

The RD directed the Petitioner to show cause why the petition should not be dismissed pursuant to section 7111(b)(1)(B) of the Statute because the petition was not supported by a 30 percent showing of interest. In response to the RD, the Petitioner asserted that he did not seek an election in this case. The Petitioner also claimed that a showing of interest was not required to support a petition filed under section 7111(f)(1).

In his decision, the RD dismissed the petition based on the Petitioner's failure to provide a showing of interest. RD's Decision at 1. The RD also held, in the alternative, that the Department of Labor (DOL) has sole authority under section 7120 of the Statute to determine whether a labor organization is subject to corrupt or anti-democratic influences.

The record before the Authority indicates that the Petitioner wrote a letter, described as an "official complaint," to DOL raising the same allegations against AFGE and AFGE, Local 1821 as were raised in his petition to the Authority. Letter, Petitioner to Washington Regional Office, DOL (1995). DOL replied to his letter, declining to initiate a formal inquiry into these matters. DOL stated, however, that Petitioner's allegations "regarding improper charges" might be covered by DOL regulations and that he could pursue those allegations pursuant to the process set out at 29 C.F.R. 458.54. The record does not reflect whether the Petitioner pursued the allegations or, if he did, whether any further determination has been made by DOL that AFGE or AFGE, Local 1812's actions constituted violations of the standards of conduct.

III. Positions of the Parties

A. Petitioner

The Petitioner contends that section 7111(f)(1) of the Statute requires the Authority to decide whether a labor organization is subject to corrupt influences or influences opposed to democratic principles. The Petitioner also asserts that his Fifth Amendment rights to due process and equal protection were denied in that the RD refused to assert jurisdiction over his allegations of improper influence.

The Petitioner maintains that, unlike a petition filed under section 7111(f)(2) for which a showing of interest is required, the petition in this case was filed under section 7111(f)(1) of the Statute, "which does not contain, or require a provision that a 'showing of interest' must accompany the petition." Application for Review at 11. Accordingly, the Petitioner claims that the RD erred by finding that a 30 percent showing of interest was required. The Petitioner also notes that DOL takes the position, contrary to the RD, that the Authority has sole jurisdiction to make determinations under section 7111(f). The Petitioner contends, therefore, that the Authority has a statutory obligation to accept jurisdiction and that the Authority should remand this case to the RD for an investigation and hearing. Id. at 10-11.

The Petitioner also summarizes his specific charges of improper conduct by AFGE and AFGE, Local 1812. These charges include allegations that union funds were misappropriated, that election and appointment irregularities were committed, that appropriate officials refused to investigate and covered up wrongdoing, as well as other matters. Petitioner asserts that this alleged conduct violates various legal requirements and that, in addition, this same conduct also violates of the Standards of Conduct, which implement the Labor Management Reporting and Disclosure Act. 29 C.F.R. Part 458; 29 U.S.C. 401, et seq.

B. AFGE Local 1812

AFGE, Local 1812's response explains and defends its actions alleged by the Petitioner to be improper. The response does not address whether the Petitioner could file this petition without a showing of interest or whether the Authority should decide the allegations of corrupt or anti-democratic influence raised in the petition.

IV. Analysis and Conclusions

A. The Framework for Considering Allegations Raised Under Section 7111(f)(1), Adopted in New York National Guard, Applies in this Case

In New York National Guard, 53 FLRA 111, a case of first impression, the Authority held that it has jurisdiction to entertain allegations made pursuant to section 7111(f)(1) of the Statute that a labor organization is not entitled to be an exclusive representative because it is subject to corrupt influences or influences opposed to democratic principles. The Authority held, in this regard, that freedom from corrupt or anti-democratic influences is a requirement for exclusive recognition under the Statute. Id. at 119.

The Authority set forth a framework for the consideration of allegations raised under section 7111(f). In particular, the Authority adopted the presumption in section 7120(a) that a labor organization is free from corrupt or anti-democratic influences if the union is subject to and subscribes to governing requirements that meet certain specified standards. Id. However, the Authority also held that the presumption is rebuttable and that a union must furnish evidence of freedom from corrupt or anti-democratic influences if there is reasonable cause to believe (1) that the union has been suspended or expelled by a national organization because of a demonstrated unwillingness to comply with proper governing requirements or (2) that the union is, in fact, subject to influences that would preclude recognition. Id.

The Authority also developed guidelines for determining whether a petitioner has established reasonable cause to rebut the presumption that the labor organization is free from corrupt and anti-democratic influences, as follows:

(1) A finding by a third party with jurisdiction over the allegations asserted to establish that a labor organization is subject to corrupt or anti-democratic influences may establish reasonable cause to proceed with a claim under Section 7111(f)(1).

(2) Dismissal of such allegations by a third party, such as DOL, suffices to establish the absence of reasonable cause to believe that denial of certification is required under Section 7111(f)(1).

53 FLRA at 121-24. To permit the full resolution of such allegations before a third party, the Authority determined that it will stay its proceedings on a section 7111(f) claim when a case is pending before another agency that is based on the same or substantially similar allegations that support the section 7111(f)(1) claim. Id.

The framework adopted by the Authority recognizes the primacy of other third-party procedures for resolving specific disputes between unions and either individuals or other unions. In this regard, the representation proceedings provided by section 7111 are designed solely to certify and define the collective rights of employees and unions to engage in representational activity with agencies. They are not designed to adjudicate specific disputes with collective bargaining representatives and they provide no remedies other than the grant or denial of certification. Such disputes are appropriately resolved through the procedures created to adjudicate them -- such as mandatory internal union complaint procedures, DOL standards of conduct proceedings, unfair labor practice procedures, and court proceedings under the racketeering and other statutes -- before we address the ultimate certification issue under the general rubric of "corrupt influences or influences opposed to democratic principles" pursuant to section 7111(f)(1).

Turning to the procedural issue raised by the dismissal of this case below, we held in New York National Guard that petitions raising claims pursuant to 7111(f) may be filed and addressed by the FLRA. We recognize that neither the regulations in effect at the time of this petition nor our current regulations expressly provide for such a petition. 5 C.F.R. 2422.1 (1995); 5 C.F.R. 2422.1(a); 2422.2(b) (1997).(6) However, as our decision in New York National Guard makes clear, the filing of a section 7111(f) petition requesting decertification is consistent with the Statute. Further, nothing in the Statute or its legislative history suggests that a such a petition need be accompanied by a showing of interest. Thus, we hold that a bargaining unit member's petition for decertification pursuant to section 7111(f), unlike a decertification petition filed pursuant to section 7111(b)(1)(B), will be considered to have been properly filed without the need for a showing of interest. In all other respects, such a petition should be processed according to the regulations concerning petitions which do not require an election.

B. The Petitioner Has Not Obtained An Initial Third Party Determination That Establishes A Reasonable Cause to Find Corrupt And Anti-Democratic Influences.

In New York National Guard, the Authority determined that, in order to resolve allegations pursuant to section 7111(f)(1) that are based on allegations subject to the jurisdiction of another agency or entity, it would rely on the disposition of these allegations before that agency or entity. In that case, the Authority found that there was no reasonable cause to believe that the challenged union was subject to corrupt or anti-democratic influences where DOL had dismissed the petitioner's claim that the rival union had violated the standards of conduct mandated by section 7120 of the Statute and by DOL regulations. New York National Guard, 53 FLRA at 125.

Here, the Petitioner asserts that "each of the Petitioner's charges against the Local and National [unions] are violations of Standards of Conduct Regulations (29 CFR, . . .)." Application for Review at 6 (emphasis in original). Thus, as in New York National Guard, we will rely on the findings of DOL with respect to these allegations to determine whether the Petitioner has demonstrated reasonable cause that the unions should be decertified pursuant to section 7111(f). As noted above, at the same time Petitioner filed his initial petition with the Authority, he filed with DOL an "official complaint," making identical charges to those presented to the Authority. Letter, Petitioner to DOL Washington Regional Office (1995). DOL responded to this letter, indicating that it intended to take no action on most of his charges. As to these charges, this response constitutes a finding that no violation occurred, and we thus hold that reasonable cause to believe that the labor organization is subject to corrupt influences or influences opposed to democratic principles has not been demonstrated with respect to these charges.

Also as noted above, DOL stated that the Petitioner could pursue his remaining charges pursuant to the claims process set out at 29 C.F.R. 458.2. The record in this case does not indicate whether the Petitioner in fact did so. In the event such claims were filed and resolved in a manner that would affect our determination pursuant to section 7111(f)(1), the case is dismissed without prejudice and may be refiled to take into account the resolution of such a complaint.

V. Order

The petition in this case is dismissed.

(If blank, the decision does not have footnotes.)

1. Member Cabaniss did not participate in this decision.

2. The petition in this case was filed prior to the March 15, 1996 effective date of the Authority's revised representation regulations. 5 C.F.R. 2422 (1997). Therefore the application for review was decided under the Authority's regulations in effect prior to that date. See Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 938 n.6 (1996).

3. The RD's decision listed the Petitioner, the Agency, and AFGE, Local 1812 as the parties to the case; it did not list AFGE as a separate party, despite the fact that the national union was separately named as a party in the petition. The RD's listing of the parties was adopted by the Authority in granting the Petitioner's application for review. This failure to properly list AFGE as a party is harmless in light of the disposition of the petition in this decision.

4. The application for review was denied insofar as it alleged that review was warranted because the Regional Director and the field investigator assigned to the case violated certain of the General Counsel's policies on the scope and quality of unfair labor practice case investigations. The Authority also rejected the Petitioner's contention that, because of the nature of his allegations, the Agency and Local 1812 should not be permitted to participate in this case. In addition, the Authority granted a motion by the Agency to change its identification in the case caption from "intervenor" to "agency."

5. 5 U.S.C. 7111(f) provides, as relevant here, 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 . . . ."

6. The Authority's records do no reveal any instance of such a petition having been filed prior to New York National Guard.