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62 FLRA No. 28
GENERAL SERVICES ADMINISTRATION
OF FEDERAL EMPLOYEES
APPLICATION FOR REVIEW
June 1, 2007
Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members
I. Statement of the Case
This case is before the Authority on an application for review filed by the Agency to the Regional Director's (RD's) Direction of Election. The Union filed an opposition to the Agency's application. Noting that there is no provision in the Authority's Regulations for filing an application for review of a Direction of Election, the Authority's Office of Case Intake and Publication issued the Agency an Order to Show Cause why its application for review should not be dismissed. See Notice and Order to Show Cause at 1. The Agency filed a response and the Union filed an opposition to the Agency's response. [n1]
The Union filed a petition with the RD seeking an election to represent employees of the Agency. The RD directed an election without conducting a hearing and without issuing a Decision and Order. See Application for Review, Exhibit 10.
For the reasons set forth below, we dismiss the Agency's application for review, without prejudice, on the ground that it is interlocutory.
The Union filed a petition seeking "exclusive recognition of [the Agency's] Region 4, to include all unrepresented professional and non-professional General Schedule and Wage Grade employees." Application for Review, Exhibit 1 at 1. As clarified by the RD, the purpose of the petition was "to request an election to determine if all of the unrepresented professional and non-professional employees employed by [the Agency] in Region 4 wish to be represented by [the Union's existing consolidated unit] for the purpose of collective bargaining." Application for Review, Exhibit 2 at 1 (emphasis in original).
Following the filing of the petition, the RD issued a Notice of Representation Hearing and scheduled an initial pre-hearing conference. After the initial pre-hearing conference, the RD issued an Amended Notice of Representation Hearing setting forth the following issue:
Under what circumstances and to what extent does the Authority's decision in [Defense Logistics Agency, Fort Belvoir, Virginia, 60 FLRA 701 (2005) (Chairman Cabaniss dissenting) (Fort Belvoir)], specifically at Part IV.C., require a determination that the unrepresented professional and non-professional employees of the [Agency's'] Region 4 sought to be added to the existing professional and non-professional consolidated units, respectively, be appropriate units as defined in [§] 7112(a) of the Federal Service Labor-Management Relations Statute.
Application for Review, Exhibit 6 at 2 (emphasis omitted). The RD also scheduled a second prehearing conference. See Application for Review, Exhibit 6.1 at 1.
Upon review of the parties' submissions in response to the Amended Notice of Representation Hearing, the RD issued an Order Withdrawing Notice of Representation Hearing. See Application for Review, Exhibit 9 at 1. The RD found that the Agency's prehearing submissions had "not provided sufficient evidence to establish that this petition raises a question [ v62 p105 ] regarding unit appropriateness." [n2] Id. at 2. Moreover, the RD found that the Agency's submissions were not timely received and, as such, the Agency had not complied with 5 C.F.R. 2422.15(c). [n3] See id. Accordingly, pursuant to § 2422.16(c) of the Authority's Regulations, the RD issued a Direction of Election without a Decision and Order. See Application for Review, Exhibit 10. The Agency filed the application for review with the Authority.
III. Positions of the Parties
The Agency asserts that review is warranted for several reasons. First, the Agency asserts that it was entitled to a full hearing. While conceding that the RD's determination of whether to issue a notice of hearing is not appealable to the Authority under § 2422.27(d) of the Authority's Regulations, the Agency argues that once the RD issued the notice of hearing, "the parties [were] vested with the right to that hearing." [n4] Application for Review at 3. The Agency also urges the Authority to waive the Agency's one-day late filing of its prehearing submission. In addition, the Agency alleges that the RD's Withdrawal of the Notice of Representation Hearing and Direction of Election prior to the second prehearing conference was premature because the Agency was prepared to discuss issues not raised in its submission during the conference call. The Agency argues that it should not be penalized for failing to include discussion of these issues in its submission because it was never instructed to do so by the RD. Further, the Agency alleges that the RD failed to apply the criteria set forth in § 7112(a) of the Statute for determining whether a unit is appropriate for representation. Lastly, the Agency argues that this case is distinguishable from Fort Belvoir, and, in the event that it is not, Fort Belvoir warrants reconsideration.
As a remedy, the Agency requests that the Authority transfer the case to another Regional Office for hearing and stay the election, or, in the alternative, impound the election ballots.
The Union argues that none of the Agency's claims in its application for review establishes that review is warranted on any of the grounds for review set forth in § 2422.31(c) of the Authority's Regulations. [n5]
IV. Order to Show Cause
In response to the Authority's Order to Show Cause, the Agency maintains that § 2422.16(d) of the Authority's Regulations sets forth a right to challenge a Direction of Election. [n6] Specifically, the Agency asserts that, "since the Authority has [jurisdiction] to review objections related to [an] election and set it aside due to procedural error or election misconduct, it is reasonable that the Authority can review the decision [to direct] an election." Agency's Response to Order to Show Cause at 1. The Agency also contends that the RD's Direction [ v62 p106 ] of Election without a Decision and Order is only appropriate where there is no question of unit appropriateness and "cannot be arbitrary or capricious." Id. at 2. The Agency claims that the RD failed to develop a complete record regarding each of the three criteria set forth in § 7112(a) of the Statute for determining whether a unit is appropriate.
In reply to the Agency's Response to the Authority's Order to Show Cause, the Union asserts that § 2422.16(d) "has no bearing" because it concerns the rights to challenge the eligibility of voters and file objections to the election. Opposition to Agency's Response at 1. The Union further contends that the RD did not abuse her discretion in directing an election. The Union claims that the Agency is attempting to obtain review of the RD's decision not to conduct a hearing, which the Agency has already conceded is unreviewable under § 2422.17(d) of the Authority's Regulations.
V. Analysis and Conclusions
As set forth above, § 2422.30(d) of the Authority's Regulations provides that "[a] party may file with the Authority an application for review of a Regional Director Decision and Order." Here, it is undisputed that the RD did not issue a Decision and Order but, instead, issued a Direction of Election without a Decision and Order, as permitted by § 2422.16(c) of the Authority's Regulations. See Application for Review, Exhibit 10 at 2. The Regulations also provide that a Direction of Election does not prejudice the right of any party to subsequently file objections to the election. See 5 C.F.R. § 2422.16(d). Taken together, these regulations support a conclusion that a Direction of Election is a preliminary finding, to which there is no right to immediately file an application for review.
Consistent with the conclusion that there is no right to file an application for review of a Direction of Election, the Authority has consistently dismissed applications for review challenging preliminary determinations in representation cases as interlocutory. [n7] See, e.g., United States Dep't of Def., Nat'l Guard Bureau, N.C. Air Nat'l Guard, Charlotte, N.C., 45 FLRA 978 (1992) (dismissing without prejudice application for review challenging RD's order denying motion to dismiss); ACTION, Wash., D.C., 1 FLRA 75 (1979) (dismissing without prejudice application for review challenging portion of Regional Administrator's Report and Findings on Objections and Challenges issued prior to rendering of final disposition of case). While the Authority construes its regulations as permitting review of interlocutory appeals in extraordinary circumstances, the Agency has presented no assertion or argument that extraordinary circumstances exist in this case. See AFGE, Local 446, 59 FLRA 451, 453 (2003). Accordingly, we dismiss the Agency's application for review without prejudice on the ground that it is interlocutory. [n8]
Finally, the Authority's Regulations provide that the Authority may "take official notice of such matters as would be proper." See 5 C.F.R. § 2429.5. Following the filing of the petition for review, on May 8, 2007, the RD informed the Authority that an election had been held in this case and provided the results. Consistent with § 2429.5, we take official notice that the election has occurred, as communicated by the RD, and dismiss as moot the Agency's request to transfer the case to another Regional Office for hearing and stay the election, or, in the alternative, impound the election ballots. See, e.g., United States Dep't of Def., Def. Logistics Agency, Def. Supply Ctr. Columbus, Columbus, Ohio, 60 FLRA 974, 976 (2005) (order granting application for review vacated where "subsequent events" rendered dispute moot).
The Agency's application for review is dismissed on the ground that it is interlocutory, without prejudice to the Agency's right to refile an application for review after the RD issues a final decision and order on the petition. The Agency's requests to transfer the case and to stay the election or counting of the ballots are dismissed as moot.
Footnote # 1 for 62 FLRA No. 28 - Authority's Decision
The Union also filed a supplemental submission consisting of an unfair labor practice charge. The Authority has consistently found it appropriate to take official notice of the record of other FLRA proceedings. See, e.g., United States Dep't of Homeland Sec., Border & Transp. Directorate, Bureau of Customs & Border Prot., 59 FLRA 910, 913 (2004); United States Dep't of Veterans Affairs, 57 FLRA 515, 518 n.5 (2001). Accordingly, we take official notice of the document submitted here. See 5 C.F.R. § 2429.5 ("The Authority may . . . take official notice of such matters as would be proper."). However, as this document has not been shown to be relevant to the merits of this case, we do not discuss it further.
Footnote # 2 for 62 FLRA No. 28 - Authority's Decision
Opportunity for a hearing. Before directing an election, the Regional Director shall provide affected parties an opportunity for a hearing on other than procedural matters, and thereafter may:
(1) Issue a Decision and Order; or
(2) If there are no questions regarding unit appropriateness, issue a Direction of Election without a Decision and Order.
Footnote # 3 for 62 FLRA No. 28 - Authority's Decision
Cooperation. All parties are required to cooperate in every aspect of the representation process. This obligation includes cooperating fully with the Regional Director, submitting all required and requested information, and participating in prehearing conferences and hearings. The failure to cooperate in the representation process may result in the Regional Director taking appropriate action, including dismissal of the petition or denial of intervention.
Footnote # 4 for 62 FLRA No. 28 - Authority's Decision
Section 2422.17(d) of the Authority's Regulations provides: "No interlocutory appeal of hearing determination. A Regional Director's determination of whether to issue a notice of hearing is not appealable to the Authority."
Footnote # 5 for 62 FLRA No. 28 - Authority's Decision
(c) Review. 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 # 6 for 62 FLRA No. 28 - Authority's Decision
Section 2422.16(d) of the Authority's Regulations provides: "Challenges or objections to a directed election. A Direction of Election issued under this section will be issued without prejudice to the right of a party to file a challenge to the eligibility of any person participating in the election and/or objections to the election."
Footnote # 7 for 62 FLRA No. 28 - Authority's Decision
Footnote # 8 for 62 FLRA No. 28 - Authority's Decision
To the extent the Agency's application could be construed as challenging the RD's Withdrawal of Notice of Representation Hearing, as conceded by the Agency, § 2422.17(d) specifically provides: "No interlocutory appeal of hearing determination. A Regional Director's determination of whether to issue a notice of hearing is not appealable to the Authority." The Authority has held that an RD does not commit prejudicial error under the Authority's Regulations where, after conducting an investigation, the RD determines that a hearing that was initially ordered is not necessary. See United States Envtl. Prot. Agency, 61 FLRA 417, 420 (2005).