[ v61 p408 ]
61 FLRA No. 75
DEPARTMENT OF THE NAVY
HUMAN RESOURCES SERVICE
DEPARTMENTOF THE NAVY,
NAVAL SHIPYARD - INTERMEDIATE
OF GOVERNMENT EMPLOYEES,
BREMERTON METAL TRADES
OF MACHINISTS AND AEROSPACE
WORKERS, DISTRICT 160, LOCAL
LODGE 282, AFL-CIO
OF MACHINISTS AND AEROSPACE
WORKERS, DISTRICT 160, PATTERNMAKERS'
LOCAL LODGE 2841, AFL-CIO
OF PROFESSIONAL AND TECHNICAL
OF PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 6, AFL-CIO
OFPROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 12, AFL-CIO
PLANNERS, ESTIMATORS, PROGRESSMEN
AND SCHEDULERS, LOCAL 6
DENYING APPLICATION FOR REVIEW
December 14, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on an application for review filed by an individual, Robert Wilson (the applicant), under § 2422.31 of the Authority's Regulations. The American Federation of Government Employees, AFL-CIO (AFGE), the International Federation of Professional and Technical Engineers and International Federation of Professional and Technical Engineers, Local 12, AFL-CIO (IFPTE, Local 12) and the Department of the Navy, Human Resources Service Center Northwest, Silverdale, Washington (Petitioner/Activity or Agency) filed oppositions to the application for review.
The applicant seeks review of the Regional Director's (RD's) Decision and Order clarifying various bargaining units following an agency reorganization. For the reasons discussed below, we deny the application for review.
II. Background and RD's Decision and Order
In October 2003, the Puget Sound Naval Shipyard and Intermediate Maintenance Facility, Bremerton, Washington (PSNS-IMF) was created following a reorganization of various facilities that were located in the states of Washington, California, and Texas and at other temporary locations worldwide. Employees at these locations were represented by several labor unions. [n1]
A petition was filed by the Agency, seeking to clarify the existing bargaining units following the reorganization. During the processing of the petition, the [ v61 p409 ] Agency and the affected unions agreed that there exist three appropriate units in PSNS-IMF; that PSNS-IMF is the successor employer of the former and current Naval activities involved in this case; and that elections are not necessary to determine the exclusive representative of the three bargaining units because certain unions are substantially predominant in the new bargaining units. See RD's Decision at 3, 11.
Applying Authority precedent, the RD found that the following units were appropriate for exclusive recognition: 1) a unit of professional employees; 2) a unit of technical employees; and 3) a unit of all other nonprofessional employees. The RD also found that there was no need for an election in any of the units, based on the Authority's decision in Department of the Army, U.S. Army Aviation Missile Command (AMCOM), Redstone Arsenal, Ala., 56 FLRA 126 (2000) (Redstone Arsenal). In this regard, the RD found that IFPTE, Local 12 represented over 97 percent of employees in the professional unit and, as such, was substantially predominant in that unit. The RD also found that IFPTE, Local 12 was substantially predominant in the unit of technical employees, with over 80 percent representation. Finally, as to the unit consisting of all other nonprofessional employees, the RD found that the Bremerton Metal Trades Council, AFL-CIO (BMTC) was substantially predominant with more than 86 percent representation. Accordingly, the RD clarified the units to reflect the above findings.
III. Application for Review
The applicant does not specify the grounds on which review is requested. [n2] Rather, citing § 7102 of the Statute, the applicant states that "I believe that my rights as an employee ... have been taken away from me by the Regional Director's decision." Application at 1. According to the applicant, "[t]he Regional Director's decision arbitrarily placed me in a different Bargaining Unit than I have been in for several years .... This however, is not the labor organization that I had chosen or would choose." Id. The applicant further states that he is now represented by a labor organization "even though I have not had the opportunity to participate in an election that would allow me to choose my representatives." Id. at 2. [n3]
The applicant further claims that the posting of notices specified by the RD "announcing the hearing process" did not occur in his workplace and that the applicant "was not afforded the opportunity to have [his] voice heard during the hearing procedure." Id. The applicant explains that
Although the Regional Director['s] instructions required notices to be posted in the work place announcing the hearing process, no such posting in the area I work occurred, although the postings of Unfair Labor Practice settlement postings regularly occur in my work area and is an area that I would expect a posting to appear.
IV. Oppositions to Application for Review
AFGE opposes the application for review on the basis that the applicant lacks standing. According to AFGE, the applicant "did not file a petition, nor was he named as an official party to any of the proceedings regarding the petition filed by the [A]gency." AFGE's Opposition at 4. IFPTE, Local 12 also claims that the applicant lacks standing and, further, that the application should be denied if the applicant is found to have standing. In response to the applicant's claim that he was denied rights under § 7102 of the Statute, IFPTE, Local 12 asserts, among other things, that an election in this case was not warranted because "one union substantially [ v61 p410 ] predominate[s in] the new units." IFPTE, Local 12's Opposition at 4.
The Agency similarly contends that the applicant lacks standing to file the application for review. The Agency also asserts that the applicant failed to file the application timely, as his cure of certain procedural deficiencies did not occur within 60 days following issuance of the RD's Decision and Order. The Agency also contends that the application for review is deficient because the application "offers no summary of evidence" and does not "make specific reference to page citations." Agency's Opposition at 4. Finally, the Agency argues that, as the applicant was not appearing on behalf of a labor organization, the application improperly raises issues that were not presented in proceedings before the RD.
V. The Application for Review is properly before
A. The applicant has standing
Contrary to the assertions raised in the oppositions, we conclude that the applicant has standing to file the application for review.
Section 7105(f) of the Federal Service Labor-Management Relations Statute (Statute) provides that "the Authority may, upon application by any interested person filed within 60 days after the date of the action," review actions of the Regional Director in representation matters. The Statute further defines the term "person" in § 7103 as "an individual, labor organization, or agency[.]" Neither the Statute nor its legislative history, however, defines the meaning of an "interested" person. In such situations, it is appropriate to refer to a dictionary definition. See, e.g., Nat'l Mediation Board, 56 FLRA 1, 5 (2000), reconsideration denied, 56 FLRA 320 (2000). Black's Law Dictionary (8th ed.) defines "interested person" as "[a] person having a property right in or claim against a thing[.]" The term "interested person" also appears in § 2424.1 of the Authority's Regulations concerning unauthorized communications in proceedings subject to the Administrative Procedure Act. In addressing the requirements of 5 U.S.C. 557(d), one definition of the term "interested person" suggested by a court is an individual "having a legal interest that will be determined or affected" by a decision. Portland Audubon Soc. v. Endangered Species Committee, 984 F.2d 1534, 1544 (9th Cir. 1993). Where, as in this case, the exclusive representative of an employee has been changed as a result of a decision and order of a Regional Director in a representation proceeding, we find that, under the Statute, the applicant has standing to file the application for review.
This result is buttressed by the court's decision in Eisinger v. FLRA, 218 F.3d 1097 (9th Cir. 2000) (Eisinger), decision and order on remand, Small Business Admin., 56 FLRA 926 (2000). In Eisinger, the issue presented was whether an individual could file a petition, under § 7111 of the Statute, seeking to clarify a bargaining unit, where the Authority's Regulations expressly held that only unions and agencies could file such petitions. The Authority determined (then-Member Cabaniss dissenting) that the Authority's Regulations precluded an individual from filing a clarification of unit petition and that the Regulations were not inconsistent with the statutory definition of "person." The court reversed the Authority's decision, finding that the statutory language was unambiguous and that an individual could file a petition, including a clarification of unit petition. The court concluded that the Authority's regulation denying individuals standing to file such petitions was "invalid" because the regulation "contravenes the unambiguous intent of Congress." 218 F.3d at 1105.
Similarly, here, we find that § 2422.31(a) of the Authority's Regulations, which limits the filing of an application for review to "[a] party," may not operate to bar the individual in this case from filing the application for review. The definition of "party," as set forth in § 2421.11, includes, as relevant here, an "individual filing a ... petition," or one "[w]hose intervention in a proceeding has been permitted or directed by the Authority[.]" In this case, the applicant did not file a petition and there is no evidence that intervention status was permitted or directed. However, in view of the definitions discussed above, and the reasoning of the court in Eisinger, the applicant in this case had standing to file the application for review. Applications of § 2422.31(a) and Authority decisions that hold otherwise will no longer be followed. [n4] See, e.g., United States Dep't of Health and Human Services, Soc. Sec. Admin., Lancaster Branch Office, Lancaster, Ohio, 49 FLRA 1122 (1994) (application for review dismissed because individual who filed application did not meet regulatory definition of "party"); United States Air Force, Seventh Combat Support Group, Carswell AFB, Tex., 22 FLRA 1066 (1986) (same). See also United States Dep't of Defense, Defense Distribution Region West, Tracy, Calif., et al., 43 FLRA 990 (1992) (Authority [ v61 p411 ] dismissed application for review filed by one of two unions that was neither party to, nor intervenor in, case before regional director).
In sum, we conclude that the applicant has standing to file the application for review.
B. The Application is timely and satisfies the regulatory filing
We reject the arguments that the application for review was not timely and that it failed to meet certain filing requirements.
As an initial matter, we note that there is nothing in the Statute or the Authority's Regulations that requires that procedural deficiencies, such as failing to include the requisite number of copies and show proper service on all parties, must be corrected within 60 days following an RD's decision. Instead, as noted above, § 7105(f) of the Statute requires that an application for review must be filed within 60 days following a Regional Director's decision. As the application for review in this case was filed within 60 days of the RD's Decision and Order, it was timely filed.
We also find that the contents of the application satisfy the Authority's regulatory requirements. As relevant here, § 2422.31(b) requires that an application for review "be sufficient to enable the Authority to rule on the application without recourse to the record[,]" and specify the matters and rulings to which exception is taken including, as appropriate, page citations and a summary of evidence. The application here provides a sufficient basis -- and sufficient specificity -- on which to base the Authority's rulings.
Finally, we reject the argument that the application is deficient because the applicant failed to raise issues in proceedings before the RD. To the extent the argument is premised on the fact that the applicant was not a party in proceedings before the RD, we have determined that the applicant has standing to file the application for review. Therefore, it would be inconsistent to apply §§ 2422.31(b) and 2429.5 so as to preclude the applicant from raising issues in the application for review that were not raised before the RD. In any event, even if those regulations could apply in a situation where the applicant was not a party in proceedings before the RD, they would not apply here because the essential issue raised by the application--whether the RD was required to have held elections--was an issue that, in fact, was explicitly addressed by the RD. As such, no basis has been presented for finding the application deficient. In sum, we conclude that the arguments in the application for review are properly before the Authority.
VI. Analysis and Conclusions
A. The RD correctly applied established law
We construe the applicant's first claim, that he was not given an opportunity to choose his exclusive representative through an election and was denied his ' 7102 rights, as a claim that the RD failed to apply established law. [n5]
The RD applied Redstone Arsenal in finding that, as certain labor organizations were substantially predominant in the various bargaining units following a reorganization, there was no need to conduct an election in those units. In discussing the requirements used to determine whether a gaining entity is a successor employer, such that an election among labor unions that previously represented employees in the new unit is not necessary, the Authority held in Redstone Arsenal that, "absent special circumstances ... a union that represents more than 70 percent of the employees in a newly combined unit formerly represented by two or more unions is sufficiently predominant to render an election unnecessary because such an election would be a useless exercise." 56 FLRA at 131 (citation omitted). In reaching this result, the Authority cited, with approval, the practice of the National Labor Relations Board, which, in interpreting the provisions of the National Labor Relations Act (NLRA), has declined to direct an election where doing so would be a useless exercise or prejudicial to the dominant group. See id. [n6] Here, the RD found, based on the numerical representation of the bargaining units, that IFPTE, Local 12 was substantially predominant in two of the newly combined units because it represented more than 70 percent of the employees in each of the newly combined units and that BMTC was substantially predominant in the third unit for the same reason. The RD concluded that no elections were necessary.
The applicant does not contest the RD's factual determinations. Instead, the applicant claims that he was not permitted to determine his new exclusive representative [ v61 p412 ] through an election and, as a consequence, that he was denied his § 7102 right "to form, join, or assist any labor organization[.]"
As was made clear in Redstone Arsenal, where, following an agency reorganization, there is an issue concerning the continued representational status of existing bargaining units, no election is required, in the absence of special circumstances, where one union is sufficiently predominant. [n7] This principle recognizes that "[i]f there is no reasonable assurance that the smaller group [of represented employees] could succeed in an election, the holding of such a contest would be a waste of time and resources, since the predominant group already has voted for its representative. The statutory requirement of section 7111(a) that an exclusive representative be selected in a secret ballot election by a majority of the employees in an appropriate unit is thus fulfilled." 56 FLRA at 131. See also Dep't of the Interior, Bur. of Land Management, Sacramento, Calif., 53 FLRA 1417, 1420-21 n. 4 (1998) (quoting Defense Supply Agency, Defense Property Disposal Office, Aberdeen Proving Ground, Aberdeen, Md., 3 FLRC 789, 802 (1975) ("if successorship requirements are satisfied, then there `is no requirement that a new secret ballot election be conducted, since the election requirement ... was already satisfied at the time the previous recognition was accorded'")). Cf. Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Ohio, 53 FLRA 1114, 1134 (1998) (where accretion and successorship are not established, the Authority's practice is to order a self-determination election where more than one bargaining unit is appropriate).
Furthermore, there is no requirement -- and the applicant points to none -- that employees must always be given an opportunity to vote on which exclusive representative will represent them. To the contrary, the Authority has held in certain circumstances that employees do not have a choice in the identity of their exclusive representative. For example, in United States Dep't of the Navy, Fleet and Industrial Supply Ctr., Norfolk, Va., 52 FLRA 950 (1997), the Authority affirmed a Regional Director's decision finding that, after a reorganization, employees in two different units represented by two different labor organizations had accreted to other units that were in existence prior to the reorganization and that were represented by other labor organizations. In like fashion, the Authority has held that new employees are automatically included in an existing unit where their positions fall within the express terms of a unit certification and their inclusion would not render the unit inappropriate. See, e.g., Dep't of the Army, Headquarters, Fort Dix, Fort Dix, New Jersey, 53 FLRA 287 (1997), and cases therein at 294.
In this case, nothing in the Statute or Authority or private sector case law required that an election be conducted. Insofar as certain unions were found to be sufficiently predominant in each of the affected bargaining units following the reorganization, it would have been a useless exercise to hold an election in the units because there would have been no "reasonable assurance of a meaningful contest." Redstone Arsenal, 56 FLRA at 131. The fact that the applicant may not have voted for the union that was found to be sufficiently predominant does not establish that he was required to have been given an opportunity to vote on a new exclusive representative and does not establish that his § 7102 rights were violated.
In sum, we find that the applicant has not demonstrated that the RD erred in applying established law and we deny the application for review in this regard.
B. The RD did not commit a prejudicial procedural error
We construe the applicant's assertion that a notice of the petition was not posted in his work area as a claim that the RD committed a prejudicial procedural error.
Section 2422.17(a) of the Authority's Regulations provides that "[t]he Regional Director may issue a notice of hearing involving any issues raised in the petition." The record reflects that the RD issued a notice of hearing, which was mailed to the parties. See General Counsel's Exh. 1(b). The applicant has provided no authority that the RD was required -- and failed -- to post a notice of hearing. This is in contrast to notices of election, for example, which are required to be posted, or otherwise distributed, by the activity involved. See ' 2422.23(b). Nonetheless, even if there were a posting requirement that was not satisfied in this case, the applicant has not established that he was prejudicially affected in any manner.
Absent any showing of prejudicial procedural error, we deny the applicant's claim.
The application for review is denied.
Footnote # 1 for 61 FLRA No. 75 - Authority's Decision
The RD found that no employees were represented at one of the facilities involved in the reorganization (Commander, Naval Surface Group Pacific Northwest). See RD's Decision at 5. The RD also found that employees in the "PSNS-IMF Boston Detachment" should not be included in any of the bargaining units in this case because such employees did not share a community of interest with other employees of PSNS-IMF. See id. at 7 n.1. No exception was taken to these findings.
Footnote # 2 for 61 FLRA No. 75 - Authority's Decision
Under § 2422.31 of the Authority's Regulations, the Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error
concerning a substantial factual matter.
Footnote # 3 for 61 FLRA No. 75 - Authority's Decision
The applicant did not specify the unit in which he was located prior to the reorganization or the unit in which he is now located. Based on statements made in the oppositions, however, it appears that the applicant was previously in a unit represented by IFPTE, Local 12 and is now in a unit represented by the BMTC. See IFPTE Local 12's Opposition at 3; Navy's Opposition at 3.
Footnote # 4 for 61 FLRA No. 75 - Authority's Decision
Footnote # 5 for 61 FLRA No. 75 - Authority's Decision
Footnote # 6 for 61 FLRA No. 75 - Authority's Decision
The Authority has applied private sector precedent in addressing the appropriateness of directing elections in successorship situations. See, e.g., Naval Facilities Engineering Service Ctr., Port Hueneme, Calif., 50 FLRA 363, 367 (1995) (quoting Turgeon v. FLRA, 677 F.2d 937, 939-40 (D.C. Cir. 1982) "[i]n view of the clearly expressed intent of Congress to pattern the Authority upon the model of the NLRB, it is appropriate . . . to consider precedent developed under the NLRA in interpreting the [Statute].").
Footnote # 7 for 61 FLRA No. 75 - Authority's Decision
"Special circumstances" includes situations where, for example, there is clear evidence that the percentage representation of the various units is not a dispositive indicator of their respective strengths. See Redstone Arsenal, 56 FLRA at 131 n.8. The applicant makes no such claim in this case.