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32 FLRA No. 72

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS
Activity

and 

AMERICAN FEDERATION OF TEACHERS
AFL-CIO
Labor Organization/Petitioner

Case No. 3-NCR-80001

ORDER DENYING APPLICATION FOR REVIEW

I. Statement of the Case

On May 3, 1988, the American Federation of Teachers, AFL-CIO (AFT) filed a timely application for review pursuant to section 2422.17(a) of the Authority's Rules and Regulations. AFT's application seeks to set aside the Regional Director's Decision and Order on Petition for National Consultation Rights. The Regional Director dismissed AFT's petition requesting that the Department of Defense grant it national consultation rights pursuant to the Federal Service Labor-Management Relations Statute (the Statute) and the Authority's Rules and Regulations. The Activity filed an untimely opposition which has not been considered.

For the reasons discussed below, we deny AFT's application for review.

II. Regional Director's Decision and Order

AFT requested that the Department of Defense, of which the Department of Defense Dependents Schools (DODDS) is a part, grant it national consultation rights pursuant to section 7113(a)(1) of the Statute and section 2426.1(b) of the Authority's Rules and Regulations. The Panama Canal Federation of Teachers, Local 29, AFT, is the certified exclusive representative of a bargaining unit of 423 DODDS employees in DODDS' Panama Region. The Overseas Federation of Teachers, AFT, is the certified exclusive representative of 859 employees in DODDS' Mediterranean Region. DODDS refused to grant AFT national consultation rights.

AFT then filed a petition with the Regional Director requesting that it be granted national consultation rights. The Regional Director dismissed AFT's petition. The Regional Director found that even assuming that DODDS was a primary national subdivision of the Department of Defense, AFT did not meet the criteria set forth in section 2426.1(b) of the Authority's Rules and Regulations.

The Regional Director found that AFT represented 1,282 employees of the 16,320 civilian personnel employed by DODDS. He concluded, therefore, that AFT did not hold exclusive recognition for 10 percent or more of the "total number of civilian personnel employed" by DODDS or hold exclusive recognition for 3,500 or more employees of DODDS. See 5 C.F.R. § 2426.1 (1988). In the absence of any legislative history to the contrary, the Regional Director concluded that the plain meaning of section 2426.1(b) did not support AFT's contention that only personnel currently included in, or eligible to be included in, bargaining units should be counted in calculating the 10-percent requirement.

III. Application for Review

AFT contends that its application for review should be granted because: (1) under section 2422.17(c)(1) of the regulations, a substantial question of law or policy is raised because of the absence of Authority precedent; and (2) under section 2422.17(c)(2), there are extraordinary circumstances warranting reconsideration of an Authority policy.

AFT contends that it has standing to file this petition on behalf of its affiliated local unions and that DODDS is a primary national subdivision of the Department of Defense. AFT contends, therefore, that it is eligible to receive national consultation rights. It also contends that AFT holds exclusive recognition for 10 percent or more of all eligible DODDS employees and that the Regional Director, therefore, erred in dismissing the petition. AFT argues that the phrase in section 2426.1(b) of the Authority's regulations--"Ten percent (10%) or more of the total number of civilian personnel employed by the primary national subdivision"--must be limited to 10 percent of the employees who are included in, or are eligible to be included in, collective bargaining units. AFT argues that under this method of calculating the 10-percent requirement, AFT clearly meets the standard for granting national consultation rights.

IV. Analysis and Conclusion

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) for granting the AFT's application for review.

Section 7113(a)(1) of the Statute states:

§ 7113. National consultation rights

(a)(1) If, in connection with any agency, no labor organization has been accorded exclusive recognition on an agency basis, a labor organization which is the exclusive representa- tive of a substantial number of the employees of the agency, as determined in accordance with criteria prescribed by the Authority, shall be granted national consultation rights by the agency. National consultation rights shall terminate when the labor organization no longer meets the criteria prescribed by the Authority. Any issue relating to any labor organization's eligibility for, or continuation of, national consultation rights shall be subject to determination by the Authority.

Section 2426.1(b) of the Authority's Regulations states:

§ 2426.1(b) Requesting; granting; criteria.

(b) An agency's primary national subdivision which has authority to formulate conditions of employment shall accord national consultation rights to a labor organization that:

(1) Requests national consultation rights at the primary national subdivision level; and

(2) Holds exclusive recognition for either:

(i) Ten percent (10%) or more of the total number of civilian personnel employed by the primary national subdivision and the non-appropriated fund Federal instrumentalities under its jurisdiction, excluding foreign nationals; or

(ii) 3,500 or more employees of the primary national subdivision.

The Statute authorizes an agency to grant national consultation rights to a labor organization only if, among other requirements, the labor organization is the exclusive representative of a substantial number of employees of the agency, as determined in accordance with criteria prescribed by the Authority. The Authority's regulations provide two methods for a labor organization to meet the "substantial number" requirement: (1) by showing that it holds exclusive recognition for 10 percent or more of the total number of civilian personnel employed by the primary national subdivision and the non-appropriated fund Federal instrumentalities under its jurisdiction, excluding foreign nationals; or (2) by showing that it holds exclusive recognition for 3,500 or more employees of the primary national subdivision. 5 C.F.R. § 2426.1.

The Regional Director found that even assuming that DODDS is a primary national subdivision of the Department of Defense, AFT does not meet the "substantial number" requirement. The Regional Director rejected AFT's argument that unit eligibility should be considered in calculating the "total number of civilian personnel employed." Noting the absence of any legislative history to the contrary, the Regional Director concluded that the plain meaning of the regulation did not support AFT's contention as to how to calculate the 10-percent figure.

The Regional Director correctly applied the Authority's regulation. The regulation uses two different terms for the two different methods by which a labor organization can demonstrate compliance with the Statute's "substantial number" requirement. The regulation uses the term "total number of civilian personnel employed" in describing the first method (the 10-percent standard) and uses the term "employees" in describing the second method (the 3,500 employees standard). The Regional Director properly found that these terms have different meanings.

Under section 7103(a)(2) of the Statute, the term "employee" includes individuals employed in an agency, but does not include supervisors, management officials, or certain other individuals. The term "total number of civilian personnel employed" is not used or defined in the Statute. In our view, that term includes supervisors and management officials in addition to other civilian personnel, because supervisors and management officials are civilian personnel employed by an agency. Moreover, the Authority's regulation does not expressly exclude supervisors and management officials from the "total number of civilian personnel employed." There is nothing in the Statute or its legislative history which indicates that this construction of the term is inconsistent with congressional intent regarding the granting of national consultation rights.

We agree with the Regional Director that the plain meaning of the term does not support AFT's contention that unit eligibility should be applied in calculating the 10-percent requirement. We conclude, therefore, that the Regional Director properly found that AFT did not meet the standard set forth in the regulation--whether the labor organization is the exclusive representative for 10 percent or more of "the total number of civilian personnel employed by the primary national subdivision and the non-appropriated fund instrumentalities under its jurisdiction, excluding foreign nationals."

Accordingly, we reject AFT's argument that a substantial question of law or policy is raised because of the absence of Authority precedent for the Regional Director's decision. Similarly, we conclude that this case does not present extraordinary circumstances within the meaning of section 2422.17(c)(2). Based on our disposition in this case, it is not necessary to consider AFT's additional assertions.

V. Order

The application for review of the Regional Director's Decision and Order on Petition for National Consultation Rights is denied.

Issued, Washington, D.C.,

_________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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