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34:0137(31)CU
The decision of the Authority follows:
34 FLRA NO. 31
U.S. DEPARTMENT OF LABOR
PENSION AND WELFARE BENEFITS ADMINISTRATION
(Activity)
and
NATIONAL UNION OF PENSION INVESTIGATORS AND AUDITORS
INDEPENDENT
(Labor Organization/Petitioner)
3-RO-80018
U.S. DEPARTMENT OF LABOR
PENSION AND WELFARE BENEFITS ADMINISTRATION
(Activity)
and
NATIONAL COUNCIL OF FIELD LABOR LOCALS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Labor Organization/Petitioner)
3-CU-80029
ORDER GRANTING APPLICATION FOR REVIEW
January 4, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This consolidated case is before the Authority on an
application for review filed by the National Council of Field
Labor Locals, American Federation of Government Employees, AFL -
CIO (National Council/AFGE) under section 2422.17(a) of the
Authority's Rules and Regulations. The National Council/AFGE
seeks review of the Regional Director's Decision and Order
which dismissed the National Council/AFGE's petition in Case No.
3-CU-80029 and denied the National Council/AFGE's intervention in
Case No. 3-RO-80018 on the ground that the employees involved
cannot be represented by the National Council/AFGE pursuant to
section 7112(c) of the Federal Service Labor - Management
Relations Statute (the Statute). The U.S. Department of Labor,
Pension and Welfare Benefits Administration did not file an
opposition to the application for review.
Inasmuch as the Authority had two vacancies when this
application for review was received, Acting Chairman McKee issued
an Interim Order on January 4, 1989, directing that consideration
of this application for review be deferred until further notice.
The Interim Order preserved the parties' rights under the Statute
to Authority consideration of the Regional Director's decision.
The Authority now considers this application for review. For
the reasons discussed below, we grant the application for
review.
II. Regional Director's Decision
The National Council/AFGE filed the Clarification of Unit
(CU) petition in Case No. 3-CU-80029, seeking to accrete Pension
and Welfare Benefits Administration (Pension and Welfare) field
investigators and auditors to its existing nationwide bargaining
unit of all field employees of the Department of Labor (Labor)
except employees stationed in the Washington, D.C. metropolitan
area.
The Regional Director found that the sole issue raised by
the CU petition was whether section 7112(c) of the Statute bars
the National Council/AFGE from representing Pension and Welfare
field investigators and auditors because they administer a
"provision of law relating to labor-management relations" within
the meaning of section 7112(c). Section 7112(c) provides that an
employee who is engaged in administering such a provision of law
may not be represented by a labor organization which (1)
represents other individuals to whom such provision applies, or
(2) is affiliated directly or indirectly with an organization
which represents other individuals to whom such provision
applies.
The Regional Director noted that in United States Department
of Labor, 23 FLRA 464 (1986) (DOL), the Authority dismissed
petitions filed by Labor which sought to accrete Pension and
Welfare field and headquarters investigators and auditors into
units represented by the National Council/AFGE or the
American Federation of Government Employees, AFL - CIO (AFGE).
The Authority found that because Pension and Welfare
investigators and auditors administered statutes relating to
labor management relations within the meaning of section 7112(c)
of the Statute, they could not be represented by the National
Council/AFGE or AFGE.
The Regional Director concluded that the National
Council/AFGE's CU petition challenged the Authority's decision in
DOL. The Regional Director found that the National Council/AFGE
presented no evidence that the Authority's findings in DOL were
"flawed." Regional Director's Decision at 3. The Regional
Director found also that the National Council/AFGE had presented
no evidence that subsequent to the issuance of the Authority's
decision in DOL, there had been any changes in the job functions
of Pension and Welfare field investigators and auditors which
could permit the accretion of these employees to the unit
represented by the National Council/AFGE. Accordingly, the
Regional Director dismissed the National Council/AFGE's CU
petition.
On May 31, 1988, the National Union of Pension Investigators
and Auditors, Independent (NUPIA) filed the petition in Case No.
3-RO-80018 seeking to represent a unit of Pension and Welfare
field investigators and auditors. The National Council/AFGE
sought to intervene in that case.
In view of his finding in Case No. 3-CU-80029 that Pension
and Welfare field investigators and auditors could not be
represented by the National Council/AFGE under section 7112(c) of
the Statute, the Regional Director concluded that there was no
basis for granting the National Council/AFGE's request for
intervention in Case No. 3-RO-80018. Therefore, he denied the
National Council/AFGE's request for intervention.
III. Application for Review
The National Council/AFGE asserts that the application
"should be granted because there are extraordinary circumstances
warranting reconsideration of an Authority policy as required by
(section) 2422.17(c)" of the Authority's Rules and Regulations.
Application at 1.
The National Council/AFGE admits that the Pension and
Welfare employees administer the Employee Retirement Income
Security Act of 1974 (ERISA). However, it contends that, contrary
to the Authority's decision in DOL, ERISA is not a
labor-management relations law within the meaning of section
7112(c). According to the National Council/AFGE, section
7112(c) "is limited to laws which relate to the collective
bargaining relationship between unions and agencies rather than
any law which simply concerns benefits or protections for
employees." Application for Review at 6.
The National Council/AFGE asserts that the Authority's
decision in United States Department of Labor, Pension and
Welfare Benefits Administration, 30 FLRA 1229 (1988) supports
its argument that a law does not relate to labor-management
relations within the meaning of section 7112(c) unless a link can
be shown between the law and the collective bargaining
relationship. The National Council/AFGE argues that a link
between the provisions of ERISA and the collective bargaining
relationship cannot be shown. Accordingly, the National
Council/AFGE maintains that (1) ERISA does not constitute a law
relating to labor-management relations within the meaning of
section 7112(c); and (2) section 7112(c) does not bar the
inclusion of Pension and Welfare field employees in the National
Council/AFGE unit.
The National Council/AFGE also contends that the
administration of the provisions of ERISA and the Taft - Hartley
Act amendments by Pension and Welfare employees does not create a
conflict of interest since neither the National Council/AFGE nor
AFGE has pension plans which are covered by ERISA. The National
Council/AFGE contends that section 7112(c) does not preclude
representation of all employees who administer provisions of
labor-management relations laws. Rather, according to the
National Council/AFGE, section 7112(c) provides only that these
employees cannot be represented by unions which also represent
other individuals who are covered by these labor-management
relations laws. Further, the National Council/AFGE contends that
AFGE does not participate in any Taft - Hartley plans and that
AFGE administers only one ERISA plan, a dental trust, in which
AFGE members can participate.
In conclusion, the National Council/AFGE contends that it is
inappropriate to prevent all Pension and Welfare field employees
from being represented by the National Council/AFGE on the basis
of AFGE's participation in one ERISA plan, particularly without a
determination of which, if any, Pension and Welfare field
employees have been involved in reviewing the AFGE dental trust.
IV. Analysis and Conclusion
On consideration of the application for review, it appears
to the Authority that compelling reasons exist for granting
review pursuant to section 1311.17(c)(2) of the Authority's Rules
and Regulations. Specifically, it appears that there are
extraordinary circumstances warranting reconsideration of the
Authority's policy for determining whether a law relates to
labor-management relations within the meaning of section 7112(c)
of the Statute and to clarify the analysis and reasoning the
Authority will use in interpreting and applying section 7112(c).
Accordingly, we will grant the application for review.
The parties may, within 10 days after issuance of this
order, submit briefs on the following issues:
(1) Whether the provisions of ERISA that Pension and Welfare
investigators and auditors administer constitute "provision(s) of
law relating to labor-management relations" within the meaning of
section 7112(c) of the Federal Service Labor - Management
Relations Statute.
(2) What is the applicability of section 7112(c)(1) and (2)
to National Council/AFGE in light of that labor organization's
own activities and its affiliation with the AFL - CIO.
V. Order
For the reasons discussed above, the application for review
is granted. In accordance with section 2422.17(g) of the
Authority's Rules and Regulations, the parties may submit briefs
within 10 days on the issues noted above. Briefs should be
directed to:
Ms. Alicia Columna
Case Control Office
Federal Labor Relations Authority
Room 213
500 C Street, SW.
Washington, D.C. 20424