Regional Director (RD) Barbara Kraft, of the Federal Labor Relations Authority, found that the Petitioner submitted a valid “showing of interest”^[1] – a collection of employee signatures – to support his petition to decertify the Exclusive Representative      (decertification petition). However, the RD found that the petition was untimely, and she dismissed it. In doing so, she applied § 7111(f)(3) of the Federal Service Labor‑Management Relations Statute (the Statute)^[2] and § 2422.12(d) of the Authority’s Regulations.^[3] There are two questions before us. 

 

 

 

 

 

 

 

 

 

 

 

Addressing these claims, the RD stated that § 7111(f)(3)(B) of the Statute “provides that a petition for an election must be filed not more than 105 days and not less than [sixty] days before the expiration of a collective[‑]bargaining agreement.”^[5] The RD also stated, in this regard, that the Authority “has . . . applied [§] 7111(f)(3) to decertification petitions filed by individuals.”^[6] For support, she cited Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Corpus Christi),^[7] National Park Service, Harpers Ferry, West Virginia (Nat’l Park Service),^[8] and Department of the Army, U.S. Army Concord District Recruiting Command, Concord, New Hampshire (Concord).^[9] In addition, she found that § 2422.12(d) of the Authority’s Regulations “governs a determination as to whether th[e] petition is timely.”^[10] Section 2422.12(d) of the Authority’s Regulations provides:

 

 

 

 

The Petitioner agrees that the RD correctly determined that his showing of interest was valid.^[12] Nevertheless, the Petitioner argues that the RD committed a prejudicial procedural error by giving the Exclusive Representative an extension of time to challenge the validity of the Petitioner’s showing of interest.^[13] 

 

Under § 2429.10 of the Authority’s Regulations, the Authority will not issue advisory opinions.^[14] The determination that the Petitioner seeks – that the RD committed a prejudicial procedural error by granting the Exclusive Representative’s extension request – would not change the RD’s determination that the Petitioner’s showing of interest was valid. As a result, addressing this argument would involve issuing an advisory opinion. Accordingly, and consistent with § 2429.10, we do not resolve this argument.^[15]

 

 

The Petitioner quotes the Authority’s statement in 90th Regional Support Command, Little Rock, Arkansas (Support Command),^[16] that “[t]he [A]uthority has never specifically held that the [open] period described in [§] 7111(f)(3) of the Statute applies to decertification petitions filed by . . . individual[s].”^[17] In addition, the Petitioner alleges that the RD did not cite any post-Support Command precedent that indicates that these “open issues” have been resolved.^[18] The Petitioner is thus making a claim, under § 2422.31 of the Authority’s Regulations, that the RD’s decision raises an issue for which there is an absence of precedent.^[19]

 

In Support Command, the activity alleged that there was an absence of precedent as to whether § 7111(f)(3) of the Statute and § 2422.12(d) of the Authority’s Regulations apply to decertification petitions.^[20] The Authority stated that the application demonstrated that the underlying decision raised an issue for which there was an absence of precedent, or that established law or policy warranted reconsideration.^[21] In this regard, the Authority stated that it had “never specifically held that the [open] period described in [§] 7111(f)(3) of the Statute applies to decertification petitions filed by . . . individual[s].”^[22] Accordingly, the Authority granted the application for review on the question of whether the open period specified in § 7111(f)(3) of the Statute and § 2422.12(d) of the Authority’s Regulations applies to such petitions.^[23] The Authority requested that the parties file briefs on the question and, in doing so, discuss “the statutory construction, legislative history, applicable precedent, and appropriate policy considerations.”^[24]  Additionally, because the question was “likely to be of concern to the federal[-]sector[-]labor-management[-]relations commu­nity in general,” the Authority stated that it would publish a Federal Register notice inviting interested persons to address the question.^[25] But subsequent events rendered the dispute in Support Command moot, and the Authority vacated the order granting the application for review, and dismissed the application, without resolving the question.^[26] And, post-Support Command, the Authority has not resolved the question.

 

In this case, the RD stated that the Authority “applied [§] 7111(f)(3) [of the Statute] to decertification petitions” in three pre-Support Command decisions: Corpus Christi, Nat’l Park Service, and Concord.^[27] In those decisions, the Authority presumed – but did not expressly find – that § 7111(f)(3) applied to such petitions.^[28] And it was unnecessary for the Authority to resolve that question because, in all three decisions, the Authority found that there were no collective‑bargaining agreements that could constitute bars in the first place. Specifically, in Corpus Christi, the Authority found that an expired collective‑bargaining agreement and correspondence purporting to extend that agreement could not act as bars to the petition.^[29] In Nat’l Park Service, the Authority found that a collective‑bargaining agreement that the agency head had disapproved could not act as a bar to the petition.^[30] And, in Concord, the Authority found that a collective‑bargaining agreement lacking a clear and unambiguous effective date could not act as a bar to the petition.^[31] These decisions are therefore consistent with Support Command’s finding that the Authority has “never specifically held that the [open] period described in [§] 7111(f)(3) of the Statute applies to decertification petitions filed by                         . . . individual[s].”^[32]

 

Based on the foregoing, we find that the RD’s decision raises an issue for which there is an absence of precedent, and we grant review on this basis. Consistent with Support Command,^[33] and § 2422.31(g) of the Authority’s Regulations – which pertinently provides that the Authority “may, in its discretion, give the parties an opportunity to file briefs” in these circumstances^[34]       – we direct the parties to file briefs addressing the following question: 

 

 

 

 

 

Finally, the Petitioner argues that the RD committed clear and prejudicial errors concerning substantial factual matters by: (1) “failing to determine that AFGE Local 1923 cannot be regarded as having exclusive representation . . . based on the fact that the [collective-bargaining agreement] is with AFGE[,] Local 2755 and not with Local 1923”;^[35] (2) “improperly claiming that the [agreement] renews year to year”;^[36] and (3) “not recognizing that the [agreement] lacks a clear and unambiguous effective date.”^[37] Depending on how the Authority resolves the question of whether § 7111(f)(3) of the Statute and § 2422.12(d) of the Authority’s Regulations apply to decertification petitions filed by individuals, it may be unnecessary to resolve the Petitioner’s additional arguments. Accordingly, it is premature at this time to address them.^[38]

 

 

 

 

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