[ v46 p76 ]
46:0076(6)AC
The decision of the Authority follows:
46 FLRA No. 6
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
U.S. DEPARTMENT OF THE ARMY
ROCK ISLAND ARSENAL
ROCK ISLAND, ILLINOIS
(Agency)
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R7-72
(Petitioner/ Labor Organization)(1)
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(Labor Organization)
CH-AC-20004
DECISION AND ORDER ON APPLICATION FOR REVIEW
October 7, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for review filed by the National Association of Government Employees (NAGE), under section 2422.17(a) of the Authority's Rules and Regulations seeking review of the Regional Director's Decision and Order on Petition for Amendment of Certification. The Regional Director found that the change in affiliation that is the subject of this proceeding was accomplished in a manner consistent with the required procedures established in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974), review denied, 3 FLRC 259 (1975) (Montrose). Therefore, the Regional Director granted the requested change in the certification. The National Federation of Federal Employees, Local 2119 (NFFE or NFFE Local 2119) filed an opposition to the application for review.(2) For the reasons set forth below, we deny the application for review.
II. Background
The National Association of Government Employees Local R7-72 (NAGE Local R7-72) was certified on December 1, 1983, as the exclusive representative of a unit of employees at Rock Island Arsenal, Rock Island, Illinois. The unit, as subsequently clarified, basically includes all eligible general schedule (GS) non-professional employees.(3) There are approximately 650 employees in the unit. The petition seeks to amend the certification by changing the designation of the exclusive representative from NAGE Local R7-72 to NFFE Local 2119. NAGE Local R7-72 also represents a separate certified unit of employees at the same location consisting of approximately 70 Non-Appropriated Fund (NAF) employees who work in the cafeteria.
There are approximately sixteen union members in the petitioned-for unit, and ten members in the NAF unit. The regular union meetings for both groups are held at the same time and place on the last Monday of the month.
On September 19, 1991, a notice of a special meeting was mailed to all members of NAGE Local R7-72, including employees in both the GS and the NAF units. The notice stated that the purpose of the meeting was to discuss and vote, by secret ballot, on the question of whether NAGE Local R7-72 should change its affiliation from NAGE to NFFE for both the GS and NAF units. The notice contained a list of the "essential impacts of the affiliation vote," including matters concerning dues assessments, terms and conditions of employment, local officers, representation at national conventions and the constitution that would govern the local's affairs. Enclosure to letter to Regional Director dated October 15, 1991, accompanying the petition. The special meeting was scheduled for Monday, October 7, 1991, at 4 p.m. in the room where NAGE Local R7-72 held its regular monthly meetings.
Six members of Local R7-72 attended the meeting. Two of the employees who attended are in the unit at issue. The remaining four are in the NAF unit. During the meeting, members discussed the proposed affiliation change. The discussion concerned such matters as dues and the lack of certain benefits from NAGE, and lasted for approximately 30 minutes. Following the discussion, all six NAGE Local R7-72 members present were given a ballot marked with two choices: "Yes, I vote to change the affiliation to National Federation of Federal Employees" and "No, I vote to keep the affiliation with National Association of Government Employees." Regional Director's decision at 2-3. Each was accompanied by a list of the "inherent choices" of the vote, including matters concerning dues assessment, terms and conditions of employment, local officers, representation at national conventions and the constitution that would govern the Local's affairs. Enclosure to letter to Regional Director dated October 15, 1991, accompanying the petition. The ballot included information indicating that the proposed affiliation involved both the GS unit and the NAF unit.
The voters separated themselves into various areas of the room and marked the ballots in secret and individually. The ballots were folded, placed together, and counted in view of those present. All six ballots were cast in favor of affiliation with NFFE.
III. Amendment of Certification Standards
The Authority has held that in order to amend the designation of an exclusive representative in an existing unit to reflect a change in affiliation, procedures set forth in Montrose must be followed. Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987). See also Union of Federal Employees, 41 FLRA 562 (1991); Florida National Guard, St. Augustine, Florida, 34 FLRA 223 (1990). Thus, to assure that an amendment of certification conforms to the desires of a union's membership, four procedural criteria must be met, at a minimum:
(1) A proposed change in affiliation should be the subject of a special meeting of the members of the incumbent labor organization, called for this purpose only, with adequate advance notice provided to the entire membership; (2) the meeting should take place at a time and place convenient to all members; (3) adequate time for discussion of the proposed change should be provided, with all members given an opportunity to raise questions within the bounds of normal parliamentary procedures; and (4) a vote by the members of the incumbent labor organization on the question should be taken by secret ballot, with the ballot clearly stating the change proposed and the choices inherent therein.
Montrose, 4 A/SLMR at 860.
IV. Regional Director's Decision and Order
The Regional Director concluded that the change in affiliation was accomplished in a manner consistent with the Montrose requirements. He determined that adequate advance notice had been provided to all members of the special meeting to discuss and vote on the proposed change in affiliation. He found further that the meeting was held at a time and place convenient to all members, and that adequate time was provided at the meeting to discuss the proposed change.
The Regional Director specifically found that the ballot clearly stated the change proposed and the choices inherent therein, although he acknowledged that the special notice, the special meeting and the ballot itself indicated that the election involved both the GS unit and the NAF unit, but that the petition covers only the GS unit. The Regional Director stated that
While the change in affiliation herein was accomplished in conjunction with another unit, such fact, standing alone, was not shown to be inconsistent with the Montrose procedures. As noted . . . the Montrose procedures were followed with regard to the petitioned[-]for unit.
Regional Director's decision at 3 n.*.
The fact that only two members from the unit involved in this case attended and voted at the special meeting also was not viewed by the Regional Director as a failure to comply with the Montrose procedures, in view of his finding that there was adequate notice and that the meeting was at a time and place convenient to the members. The Regional Director noted that
there is no requirement under Montrose that a specific percentage or number of members must cas[t] ballots in order for an affiliation change to be effective. See U.S. Department of Interior, Bureau of Indian Affairs, Rosebud, South Dakota, 34 FLRA 67 (1989) (Rosebud) (no requirement under the Statute that a specified number of eligible voters must cast ballots in order for representation election to be valid.)
Id.
Finally, the Regional Director concluded that there was "substantial continuity" between the local union existing before and after the vote. Id. at 4. In this regard, he noted that the Local's officers remained and served as representatives in negotiated grievances and negotiation. The Regional Director also noted that after the vote the parties continued to honor the July 1991 negotiated agreement between the Activity and NAGE Local R7-72, mediated two grievances with FMCS assistance in November 1991, and made a joint submission to the Federal Service Impasses Panel in a matter affecting the GS unit. In addition, the Regional Director found that the Local continued to operate with the same degree of autonomy as before the affiliation vote, and that there was no evidence that NAGE at any higher level had taken any action to change the relationship between the Activity and the Local. In summary, the Regional Director found that "[t]here was no material change in the Local's daily operation, autonomy or control of operation and it continued as the representative of employees in various representational matters." Id.
Accordingly, the Regional Director granted the petition to amend the certification.
V. Application for Review
In its application for review, NAGE asserts that four findings of the Regional Director raise substantial issues of law because of departures from Authority precedent.
First, NAGE contends that the meeting was not held at a time convenient for a majority of the members. In this regard, the application notes that only six members attended the special meeting, and that only two of the six, both of whom are officers of the Local, are in the GS unit covered by the petition. NAGE argues that this demonstrates that the time was not convenient for the members and that the vote did not accurately represent the desires of the membership of the GS unit.
A second claim made by NAGE is that members of the NAF unit did not have "an adequate informed vote during the special meeting." Application for review at 2. NAGE argues that, under Montrose and Union of Federal Employees, 41 FLRA at 572 n.2, the notice to employees and the ballot must adequately inform the employees of the issue to be decided, but that the notes of the meeting "[do] not state anywhere that the NAF employees would remain affiliated with NAGE." Application for Review at 3. Pointing out that the petition covers only the GS employees, NAGE argues that "[h]ad the NAF employees known that the AC petition would only be covering the GS employees, they might have voted to keep the whole affiliation of NAGE Local R7-72 with NAGE." Id.
Next, NAGE asserts that the continuity of representation necessary to support an amendment of certification is absent. It argues that an amendment to the certification of the GS unit will have the effect of making the GS employees members of NFFE, while the NAF employees will still be members of NAGE Local R7-72. The executive vice president and the acting president, who are in the GS unit, would become members of NFFE according to this argument, and new officers would therefore have to be elected to replace those officers from the NAF unit who remain in NAGE Local R7-72.
Finally, NAGE argues that the petition should be dismissed because it was signed by a membership coordinator with NFFE, and that, therefore, the petition was not filed by the labor organization that is the current certified and recognized exclusive representative. The NAGE quotes A Guide to the Federal Service Labor-Management Relations Statute, a publication of the Authority, in support of its position that the petition should be dismissed on that basis.
VI. Analysis and Conclusions
A. Preliminary Matter
NAGE argues that the petition should be dismissed because it was improperly filed. Specifically at issue is the application of section 2422.1(d) of the Authority's Rules and Regulations, which provides in pertinent part that a petition for amendment of certification "may be filed by an activity or agency or by a labor organization which is currently recognized by the activity or agency as an exclusive representative." NAGE Local R7-72 was the currently recognized exclusive representative at the time the petition was filed. NAGE asserts that the petition was filed by NFFE, rather than by NAGE Local R7-72, as required by section 2422.1(d).(4)
The section of the petition designated "Name and Address of Petitioner" contains, as relevant here, the following information:
Bill Ingram, Acting Vice President National Association of Government Employees Local R7-72
NAGE alleges that the filing was improper because the signature on the petition is that of the person who is elsewhere identified as "Membership Coordinator, National Federation of Federal Employees." In our view, this is irrelevant. The petition clearly states that the petitioner is the acting vice president of the incumbent, NAGE Local R7-72. Therefore, it complies with the requirement in section 2422.1(d) that the petition be filed by the labor organization that is the currently recognized exclusive representative.
B. The Regional Director's Decision Conforms to Authority Precedent
1. Montrose Factors
We conclude that the Regional Director's decision is consistent with the standards established in Montrose and applied in numerous Authority decisions. First, we agree with the Regional Director that the meeting was held at a time that was convenient to unit members and with adequate advance notice. As the Regional Director noted, there is no requirement that a specific number or percentage of members must cast ballots in order for an affiliation change to be effective. See Rosebud. See also Lemco Construction, 283 NLRB 459 (1987), quoted with approval in Rosebud, 34 FLRA at 70 ("[the National Labor Relations Board] will issue certifications where there is adequate notice and opportunity to vote and employees are not prevented from voting by the conduct of a party or by unfairness in the scheduling or mechanics of the election.")
In the absence of any complaints from members of NAGE Local R7-72 that they were denied the opportunity to vote, the fact that only two unit members voted establishes neither that the meeting place and time were inconvenient nor that the vote does not reflect the wishes of the employees in the unit. We note in this regard that although NAGE argues that three unit members could not attend the meeting, there is no evidence that those individuals have complained that the scheduling of the meeting was unfair. As there is no contention that notice of the meeting was not given sufficiently in advance or that it was improperly delivered, and there is no allegation that the mechanics of the election were unfair in any other respect, we conclude that the application provides no basis for granting review of the Regional Director's decision in this regard.
We further conclude that the Regional Director did not depart from Authority precedent in determining that, in the circumstances of this case, prospective voters in the GS unit were advised with sufficient clarity about the choices inherent in the proposed affiliation.
NAGE argues that eligible voters did not have sufficient information to cast an adequately informed vote, as required by Union of Federal Employees, because the prospective voters were not informed that the result of a vote to affiliate with NFFE would be the amendment of the certification of only the GS unit. Specifically, it is argued that "[h]ad the NAF employees known that the AC petition would only be covering the GS employees, they might have voted to keep the whole affiliation of [the] NAGE Local R7-72 with NAGE." Application for Review at 3. We agree with the Regional Director that, as the petition in this case does not seek a change in certification with regard to the NAF unit, considerations concerning that unit are not relevant to this decision. As the Regional Director stated, "[w]hile the change in affiliation herein was accomplished in conjunction with another unit, such fact, standing alone, was not shown to be inconsistent with the Montrose procedures." Regional Director's decision at 3 n.*.
Montrose requires that both the notice of a special meeting for an affiliation vote and the ballot itself accurately specify the full scope of the proposed change in affiliation. Further, the ballot must clearly state the "choices inherent" in the proposed change. Union of Federal Employees, 41 FLRA at 575. In this case, those requirements were met insofar as the notice and the ballot discussed the effects of affiliation on the members' dues, local officers, terms and conditions of employment, and other representational and internal union matters. The fact that the NAF unit has not, to date, filed a petition to amend its certification does not affect the Regional Director's determination that the procedures followed for the special meeting and ballot did not result in procedural unfairness to the employees in the GS unit. Accordingly, the application provides no basis for granting review of the Regional Director's decision in this regard.
2. Continuity of Representation
We further agree with the Regional Director's finding that the petition was supported by evidence of substantial continuity between the union existing before and after the change in affiliation, See NLRB v. Financial Institution Employees of America, Local 1182, 475 U.S. 192 (1986) (Financial Institution Employees); Union of Federal Employees, 41 FLRA at 572 n.2, 587 n.4. For the reasons discussed by the Regional Director, including the fact that the Local's officers served as representatives in negotiated grievances and made submissions to the Federal Mediation and Conciliation Service and that the Local continued to operate with the same degree of autonomy after the election as before, we agree that there was "no material change in the Local's daily operation, autonomy or control of operation and it continued as the representative of employees in various representational matters." Regional Director's decision at 4.
Again we emphasize that the issues to be resolved in this application for review relate to employees in the petitioned-for unit. Thus, the analysis of representational continuity must be made in terms of the GS unit. In this regard, we simply do not know the import of the failure of the NAF unit to file an AC petition. It is not evident from the record before us that the NAF unit has, despite the results of the affiliation vote, retained its affiliation with NAGE. Further, even assuming that the NAF unit has not formally affiliated with NFFE and that NAGE is correct in contending that the GS unit therefore would have to elect new officers to replace those remaining with NAGE Local R7-72 if the certification of the GS unit is amended,(5) the record does indicate that two of the officers are members of the unit involved in this case. Moreover, continuity of officers is only one element the Authority relies on in determining representational continuity. Union of Federal Employees, 41 FLRA at 572, 582 (Authority agreed with Regional Director that there was sufficient continuity based on, among other things, retention of officers). Other elements relating to local autonomy and control of day-to-day operations are also considered to be strong indicia of representational continuity. Id. at 582. In view of all the factors cited by the Regional Director, we find sufficient continuity of representation has been demonstrated and that the application does not establish a basis to grant review of the Regional Director's decision in this regard.
VII. Order
For the foregoing reasons, the application for review is dismissed.(6)
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. We have changed the designations of the labor organizations in the caption of this case to reflect the discussion below at VI.A.
2. The Authority issued an order directing the NFFE to file with the Authority by September 8, 1992, a statement of service on all parties to comply with the Authority's Rules and Regulations. The statement of service was timely filed and we have considered the opposition.
3. The certified unit is described as follows:
INCLUDED:
All General Schedule (GS) employees, including temporary employees with appointments of more than 180 days, employed at Rock Island Arsenal and U.S. Army Troop Support Agency, Rock Island Arsenal Commissary and U.S. Army Health Clinic, Rock Island Arsenal, Rock Island, Illinois.
EXCLUDED
All professional employees; management officials; supervisors; employees described in 5 USC 7112(b)(2), (3), (4), (6) and (7); Guards; Firefighters; Wage Grade employees; and temporary employees with appointments of less than 180 days based upon a specific event non-recurring.
4. Although the Regional Director inadvertently failed to address this issue, it was raised before him both in NAGE's position statement dated November 14, 1991, and in its response to the filing of the petition, dated January 24, 1992. As the issue was timely presented to the Regional Director, it is properly before us. See Section 2422.17(b) of the Authority's Rules and Regulations (an application for review "may not raise any issue or allege any facts not timely presented to the Regional Director").
5. It is difficult to determine from the record whether any of the current officers of Local R7-72 are in the NAF unit. It appears that at least one steward of Local R7-72 is a NAF unit employee.
6. In his Decision and Order, the Regional Director stated his intention to amend the certification to reflect the change of name of the petitioner to the National Federation of Federal Employees. We note, however, that the petition refers to the National Federation of Federal Employees, Local 2119.