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56 FLRA No. 183
90th REGIONAL SUPPORT COMMAND
LITTLE ROCK, ARKANSAS
(Activity)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1017
(Exclusive Representative/Labor Organization)
and
RAUL MARIN
(Petitioner/Individual)
DA-RP-00033
_____
ORDER GRANTING APPLICATION FOR REVIEW
December 29, 2000
_____
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.
This matter is before the Authority on the Activity's application for review of the Regional Director's Supplemental Decision and Order dismissing the petition, which was filed by Petitioner Raul Marin, who filed as an individual.
The Regional Director found that the petition for an election to decertify the Exclusive Representative was untimely filed. He reached this result because the petition was not filed within the window established under the Federal Service Labor-Management Relations Statute (the Statute) and the Authority's Regulations for election petitions filed when there is an existing collective bargaining agreement. Neither the Petitioner nor the Exclusive Representative filed an opposition to the application for review.
The Activity has established that grounds exist for granting review of the Regional Director's Decision under section 2422.31(c)(1) and (2) of the Authority's Regulations, as the decision either raises an issue for which there is an absence of precedent, or established law or policy warrants reconsideration. [n1] Accordingly, we grant the application for review on the issue of whether the agreement bar open period specified in section 7111(f)(3)(B) of the Statute [n2] and section 2422.12(d) of the Regulations [n3] applies to decertification petitions filed pursuant to section 7111(b)(1)(B) of the Statute.
Pursuant to section 2422.31(g) of the Authority's Regulations, the parties are requested to file briefs addressing the question of whether these restrictions apply to a petition, filed by an individual, seeking to determine whether the exclusive representative no longer represents a majority of the employees in the unit. In responding to this question, the parties are asked to discuss the statutory construction, legislative history, applicable precedent, and appropriate policy considerations. [n4] Briefs will be considered if received by mail or personal delivery in the Authority's Office of Case Control by 5 p.m. on February 12, 2001. Placing submissions in the mail by this deadline will not be sufficient. Extensions of time to submit briefs will not be granted. Briefs should be directed to:
Peter J. Constantine
Director, Case Control Office
Federal Labor Relations Authority
607 14th Street, NW, Suite 415
Washington, D.C. 20424-0001 [ v56 p1042 ]
Chairman Wasserman, concurring.
I am inclined to find that the Regional Director was correct, and that we should not grant review. Our precedent indicates that the Authority has historically applied the agreement bar period to decertification petitions filed by individuals. Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 16 FLRA 281, 283 (1984) (William Charles Chism, Individual Petitioner) (decertification petition by individual not precluded by "agreement bar" because temporary stopgap agreement does not constitute final agreement of fixed duration "and lacks the stability sought to be achieved by the agreement bar principle."); National Park Service, Harpers Ferry, West Virginia, 15 FLRA 786, 788-89 (1984) (Bruce Geyman, Petitioner) (no agreement bar to petition for decertification filed during interim between Agency head disapproval of agreement and successful conclusion of a subsequent agreement); Dep't of the Army, U.S. Army Concord District Recruiting Command, Concord, New Hampshire, 14 FLRA 73, 75 (1984) (David Keuther, Petitioner) (no agreement bar to decertification petition by individual because agreement lacks clear and unambiguous date upon which it became effective.) Cf. also, United States Information Agency, Washington, D.C., 53 FLRA 999, 1004 (1997) (Authority addressed petition to decertify based on allegation that labor organization subject to corrupt influences under section 7111(f)(1)).
In my view, a common sense reading of the Statute calls for the application of the agreement bar provided in section 7111(f)(3)(B) to a petition by an individual testing the continued majority of an exclusive representative. In addition, uniform treatment of petitions seeking to upset an established relationship when an exclusive representative has achieved a collective bargaining agreement makes eminent good sense. Finally, promotion of stability achieved by such an approach is a goal of the Statute. Dep't. of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 937 (1996) (legislative history of section 7111(f)(3) confirms that contract bar is intended to lend stability to collective bargaining relationships). Nevertheless, I join in granting the application for the purpose of getting input from the parties and other interested members of the federal labor relations community. In view of the precedent represented by the cases cited, I would find that review is warranted only on the ground that established law or policy warrants reconsideration as provided in section 2422.31(c)(2) of the Authority's Regulations.
Footnote # 1 for 56 FLRA No. 183
The Authority has never specifically held that the window period described in section 7111(f)(3) of the Statute applies to decertification petitions filed by an individual.
Footnote # 2 for 56 FLRA No. 183
Section 7111(f)(3)(B) of the Statute provides:
(f) Exclusive recognition shall not be accorded to a labor organization-
. . . .
(3) if there is then in effect a lawful written collective bargaining agreement between the agency involved and an exclusive representative (other than the labor organization seeking exclusive recognition) covering any employees included in the unit specified in the petition, unless-
. . . .
(B) the petition for exclusive recognition is filed not more than 105 days and not less than 60 days before the expiration date of the collective bargaining agreement.
Footnote # 3 for 56 FLRA No. 183
Section 2422.12(d) of the Regulations, referring to the timeliness of petitions seeking an election, provides in pertinent part:
§ 2422.12(d) . . . Where a collective bargaining agreement is in effect covering the claimed unit and has a term of three (3) years of less from the date it became effective, a petition seeking an election will be considered timely if filed not more than one hundred and five (105) and not less than sixty (60) days prior to the expiration of the agreement.
Footnote # 4 for 56 FLRA No. 183
The Authority believes that these issues are likely to be of concern to the federal sector labor-management relations community in general. Accordingly, on or about January 15, 2001, the Authority will publish a Federal Register Notice inviting interested persons to address the issues. Copies of the Notice may be obtained from the Authority's Case Control Office upon publication.