34:0413(75)RA - UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF INDIAN AFFAIRS NAVAJO AREA OFFICE GALLUP, NEW MEXICO and UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF INDIAN AFFAIRS NAVAJO AREA OFFICE ALBUQUERQUE, NEW MEXICO and UNITED STATES DEPAR
[ v34 p413 ]
34:0413(75)RA
The decision of the Authority follows:
34 FLRA NO. 75
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
NAVAJO AREA OFFICE
GALLUP, NEW MEXICO
(Activity)
6-RA-80002
and
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
NAVAJO AREA OFFICE
ALBUQUERQUE, NEW MEXICO
(Activity)
6-RA-80003
and
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
WASHINGTON, D.C.
(Petitioner)
and
NATIONAL COUNCIL OF BUREAU OF INDIAN
AFFAIRS EDUCATORS/AFT
(Labor Organization/Incumbent)
and
OVERSEAS EDUCATION ASSOCIATION
NATIONAL EDUCATION ASSOCIATION (NEA)
(Intervenor)
ORDER DENYING APPLICATION FOR REVIEW
January 19, 1990
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 Overseas Education Association/National
Education Association (OEA/NEA) under section 2422.17(a) of the
Authority's Rules and Regulations. OEA/NEA seeks review of the
Regional Director's Decision and Order of December 7, 1988,
denying OEA/NEA's request for intervention in the above-named
cases. The National Council of Bureau of Indian Affairs
Educators/American Federation of Teachers (NCBIAE/AFT) filed an
opposition to the application.
The Regional Director found that OEA/NEA's petition for
intervention was not supported by a showing of interest of at
least 10 percent of the employees in the units involved, or a
copy of a current or recently expired collective bargaining
agreement with the Activity covering any of the employees
involved, or evidence that it is the currently recognized or
certified exclusive representative of any of the employees
involved as required by section 2422.5 of the Authority's Rules
and Regulations.
On April 7, 1989, because the Authority had two vacancies in
its membership, Acting Chairman McKee issued an Interim Order
directing that consideration of OEA/NEA's application for review
be deferred until further notice in order to preserve 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 deny the application for
review.
II. Background
This case arose as the result of an ongoing dispute between
the Department of Interior, Bureau of Indian Affairs, Washington,
D.C. (Interior) and NCBIAE/AFT which has resulted in five
separate "Doubt as to Representative Status" (RA) petitions filed
by Interior. In each of its five RA petitions, Interior has
raised the same question--whether NCBIAE/AFT continued to
represent a majority of the employees in the Navajo and
Albuquerque Area units. Two of these five petitions are those
involved in this case. Due to the lengthy, complicated and
interconnected nature of this dispute and the various petitions,
a chronological summary of the facts and cases is set forth
below.
When NCBIAE was originally certified as the exclusive
representative for the Navajo and Albuquerque Area units, it was
certified as an affiliate of NEA. On March 30, 1987, NCBIAE was
notified by NEA's Executive Director that NEA had terminated
NCBIAE's affiliation with NEA. On July 6, 1987, NCBIAE received a
charter from AFT. On August 6, 1987, NCBIAE filed Amendment of
Certification (AC) petitions in Case Nos. 6-AC-70005 and
6-AC-70006 seeking to amend its certifications covering NCBIAE's
Navajo and Albuquerque Area units to reflect its change in
affiliation from NEA to AFT. Thereafter, on September 18, 1987,
Interior filed its first two RA petitions, Case Nos. 6-RA-70001
and 6-RA-70002, questioning the continued majority status of
NCBIAE. On October 21, 1987, the first Regional Director
decisions in this dispute were issued in Case Nos. 6-AC-70005 and
6-AC-70006 granting NCBIAE's AC petitions and amending NCBIAE's
certifications to reflect the change in affiliation from NEA to
AFT.
On November 2, 1987, Interior filed a third RA petition,
Case No. 6-RA-80001, again questioning the continued majority
status of NCBIAE. On November 10, 1987, and November 13, 1987,
the Regional Director dismissed Interior's three RA petitions,
Case Nos. 6-RA-70001, 6-RA-70002 and 6-RA-80001. The Regional
Director determined that Interior presented insufficient evidence
to support the claim that NCBIAE no longer represented a majority
of the employees in the existing units. On November 18, 1987,
Interior filed two more RA petitions, Case Nos. 6-RA-80002 and
6-RA-80003, once again questioning the continued majority status
of NCBIAE/AFT. As noted previously, these latest RA petitions,
the fourth and fifth filed by Interior which question
NCBIAE/AFT's majority status in the Navajo and Albuquerque units,
are those at issue before the Authority in this case.
The Regional Director, by a letter dated December 2, 1987,
informed Interior that he was holding Interior's RA petitions in
Case Nos. 6-RA-80002 and 6-RA-80003 in abeyance pending his
decisions on Interior's other RA petitions in Case Nos.
6-RA-70001, 6-RA-70002 and 6-RA-80001 becoming final. The
Regional Director stated that the basis for holding the two RA
petitions in abeyance was because Interior's RA petitions in Case
Nos. 6-RA-80002 and 6-RA-80003 raised the same issue as
previously considered in Interior's RA petitions in Case Nos.
6-RA-70001, 6-RA-70002 and 6-RA-80001, that is, whether
NCBIAE/AFT continued to represent a majority of the employees in
the Navajo and Albuquerque Area units.
On December 16, 1987, Interior filed with the Authority a
timely application for review seeking to set aside the Regional
Director's October 21, 1987, decisions on NCBIAE's AC petitions
in Case Nos. 6-AC-70005 and 6-AC-70006 granting NCBIAE's request
to amend its certifications to reflect the change in affiliation
from NEA to AFT, and the Regional Director's November 10 and 13,
1987 decisions dismissing Interior's RA petitions in Case Nos.
6-RA-70001, 6-RA-70002 and 6-RA-80001.
After Interior filed its application for review of the
Regional Director's decisions of October 21, November 10 and 13,
1987, OEA/NEA filed a request for intervention in Interior's RA
petitions in Case Nos. 6-RA-80002 and 6-RA-80003 which were being
held in abeyance by the Regional Director. This request for
intervention was filed with the Regional Director on December 18,
1987, pursuant to section 2422.5(a) of the Authority's Rules and
Regulations. The basis for OEA/NEA's request for intervention was
that it was the incumbent exclusive representative of the units
of employees covered by Interior's RA petitions. OEA/NEA had not
filed requests for intervention in the other three Interior RA
petitions. In addition, on December 21, 1987, OEA/NEA filed with
the Authority a timely application for review seeking to set
aside the Regional Director's decisions on NCBIAE's AC petitions
in Case Nos. 6-AC-70005 and 6-AC-70006.
By a letter dated January 4, 1988, the Regional Director
notified OEA/NEA that he would hold its request for intervention
in Interior's RA petitions in Case Nos. 6-RA-80002 and 6-RA-80003
in abeyance pending the Authority's final decision on OEA/NEA's
application for review of the Regional Director's decision on
NCBIAE's AC petitions in Case Nos. 6-AC-70005 and 6-AC-70006 and
Interior's application for review of the Regional Director's
decision on NCBIAE's AC petitions in Case Nos. 6-AC-70005 and
6-AC-70006, and Interior's RA petitions in Case Nos. 6-RA-70001,
6-RA-70002 and 6-RA-80001.
On February 12, 1988, the Authority granted the applications
for review filed by Interior and OEA/NEA and granted a stay with
respect to Case Nos. 6-AC-70005 and 6-AC-70006. U.S. Department
of Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New
Mexico, 31 FLRA 76 (1988) (Bureau of Indian Affairs I). On April
22, 1988, the Authority remanded the above-entitled cases to the
Regional Director for clarification of his decisions. On July 21,
1988, the Regional Director issued his Supplemental Decision and
Order in which he affirmed his earlier decisions which
granted NCBIAE's request to amend its certifications to reflect
the change in affiliation from NEA to AFT and dismissed
Interior's three RA petitions questioning the continued majority
status of NCBIAE/AFT.
On October 27, 1988, the Authority issued its decision in
U.S. Department of Interior, Bureau of Indian Affairs, Navajo
Area, Gallup, New Mexico, 33 FLRA 482 (1988) (Bureau of Indian
Affairs II), in which it denied Interior's and OEA/NEA's
applications for review. In affirming the Regional Director'
supplemental decision, the Authority found, among other things,
that the NCBIAE/AFT and not OEA/NEA was the exclusive
representative of the employees of the Navajo and Albuquerque
Area units.
After the issuance of the Authority's decision in Bureau of
Indian Affairs II, the Regional Director denied OEA/NEA's request
for intervention in Interior's RA petitions in Case Nos.
6-RA-80002 and 6-RA-80003 which questioned the continued majority
status of NCBIAE/AFT. OEA/NEA now seeks review of the Regional
Director's denial of its request for intervention.
III. Regional Director's Decision Denying OEA/NEA's Request for
Intervention
The Regional Director considered OEA/NEA's request to
intervene in Interior's RA petitions in Case Nos. 6-RA-80002 and
6-RA-80003, and found that the request to intervene was not
submitted in accordance with section 2422.5 of the Authority's
Rules and Regulations. He found that the petition for
intervention was not supported by a showing of interest of at
least 10 percent of the employees in the units involved, or a
copy of a current or recently expired collective bargaining
agreement with the Activity covering any of the employees
involved, or evidence that it is the currently recognized or
certified exclusive representative of any of the employees
involved. Accordingly, on December 7, 1988, the Regional Director
denied OEA/NEA's request for intervention in Case Nos. 6-RA-80002
and 6-RA-80003.
IV. OEA/NEA's Application for Review of the Regional Director's
Decision Denying Its Request for Intervention
OEA/NEA contends that compelling reasons exist within the
meaning of section 2422.17(c) of the Authority's Rules and
Regulations to support its application for review of the Regional
Director's denial of its request to intervene in Interior's RA
petitions in Case Nos. 6-RA-80002 and 6-RA-80003.
OEA/NEA asserts that: (1) a substantial question of law or policy
is raised because of the absence of Authority precedent; (2)
there are extraordinary circumstances warranting reconsideration
of an Authority policy or lack thereof; (3) the Regional
Director's ruling denying OEA/NEA's request for intervention in
these proceedings has resulted in prejudicial error; and (4) the
Regional Director's decision on a substantial factual issue is
clearly erroneous.
OEA/NEA argues that it could have requested intervention
under section 2422.5(a) of the Authority's Rules and Regulations
by submitting to the Regional Director either (1) a showing of
interest of 10 percent or more of the employees in the unit
specified in the petition or (2) evidence that it is the
currently recognized or certified exclusive representative of any
of the employees involved. Application at 3.
OEA/NEA reasserts its long held position that NEA and not
NCBIAE was the exclusive representative of the employees of the
Navajo Area and, thus, OEA/NEA would request intervention as the
incumbent exclusive representative. Without abandoning this
position, OEA/NEA also argues that it could request intervention
on the basis of a showing of interest collected in December 1987,
of 11 percent of the employees of the Navajo area units. In its
application for review of the Regional Director's denial of its
request to intervene in Interior's RA petitions in Case Nos.
6-RA-80002 and 6-RA-80003, OEA/NEA included Petitions For Showing
Of Interest.
OEA/NEA contends further that the issue of whether NCBIAE or
NEA was the exclusive representative of the Navajo unit was in
dispute and before the Authority for final determination on
NCBIAE's AC petitions in Case Nos. 6-AC-70005 et al. OEA/NEA
argues that if it had submitted a 10 percent showing of interest
with its request for intervention in Interior's RA petitions in
Case Nos. 6-RA-80002 and 6-RA-80003, OEA/NEA would have
contravened and severely prejudiced the legal position it was
advancing in opposition to NCBIAE's AC petitions in Case Nos.
6-AC-70005 et al. that NEA, and not NCBIAE, was the incumbent
exclusive representative of the Navajo Unit. Therefore, OEA/NEA
claims that this situation amounts to extraordinary
circumstances.
OEA/NEA also contends that the Regional Director should have
given it the opportunity to amend its request for intervention in
response to the Authority's decision in Bureau of Indian
Affairs II. OEA/NEA asserts that the failure of the Regional
Director to allow OEA/NEA to amend its request to intervene by
introducing separate and distinct evidence in support of its
request to intervene infringes on OEA/NEA's rights as a party in
interest. OEA/NEA argues that "to the best of OEA/NEA's knowledge
and belief there is no Authority policy on whether or not a labor
organization can amend a request for intervention and, if so,
under what circumstances." Application at 5.
OEA/NEA concludes that the absence of Authority precedent
addressing a labor organization's right to amend a request for
intervention raises a substantial question of law or policy
especially in the present case, where, in OEA/NEA's view, there
are extraordinary circumstances present.
Accordingly, OEA/NEA contends that due to the unusual
circumstances presented in this case and the lack of Authority
precedent to cover such circumstances, its application for review
should be granted and the Regional Director's decision be
reversed and remanded for further appropriate action.
V. NCBIAE/AFT's Opposition to OEA/NEA's Application for Review
NCBIAE/AFT contends that the Regional Director properly
denied OEA/NEA's request for intervention. NCBIAE/AFT argues that
OEA/NEA's application for review does not meet any of the grounds
for granting an application for review set forth in section
2422.17(c) of the Authority's Rules and Regulations.
NCBIAE/AFT contends that nothing prevented OEA/NEA from
timely submitting its alleged showing of interest when it filed
its request for intervention. NCBIAE/AFT disputes OEA/NEA's
contention that such a showing of interest would have contravened
and severely prejudiced OEA/NEA's legal position that NEA and not
NCBIAE/AFT was the incumbent exclusive representative of the
Navajo Area unit. NCBIAE/AFT argues instead that this contention
ignores the obvious solution of timely submitting a showing of
interest as an alternative theory. NCBIAE/AFT argues that
OEA/NEA's "failure to follow the applicable regulations due to
its poor choice of strategy hardly constitutes 'extraordinary
circumstances.'" Opposition at 4.
NCBIAE/AFT argues that OEA/NEA's attempt to introduce its
showing of interest into the record to cure a "blatant
violation of the FLRA's Rules and Regulations should not be
allowed." Opposition at 3. NCBIAE/AFT further argues that the
showing of interest is stale because it was more than 1 year old
when submitted to the Authority.
Accordingly, NCBIAE/AFT contends that OEA/NEA's application
for review should be dismissed.
VI. Analysis and Conclusion
We have carefully considered OEA/NEA's application for
review of the Regional Director's Decision and Order denying
OEA/NEA's request to intervene in Interior's RA petitions in Case
Nos. 6-RA-80002 and 6-RA-80003. We conclude that compelling
reasons do not exist, within the meaning of section 2422.17(c) of
the Authority's Rules and Regulations, for granting review of the
Regional Director's Decision and Order. Rather, the application
expresses nothing more than disagreement with the Regional
Director's findings and conclusions, which are based on the
request to intervene and the record before the Regional Director
and have not been shown to be clearly erroneous and to have
prejudicially affected the rights of any party.
Section 2422.5(a) of the Authority's Rules and Regulations
provides, in relevant part, that a labor organization seeking to
intervene in a representation proceeding filed under section
2422.2(a) or (b) must submit to the Regional Director a showing
of interest of 10 percent or more of the employees in the unit
specified in the representation petition, or a current or
recently expired agreement with the activity covering any of the
employees involved, or evidence that it is the currently
recognized or certified exclusive representative of any of the
employees involved. OEA/NEA satisfied none of the requirements of
section 2422.5(a).
OEA/NEA supported its request for intervention before the
Regional Director only with the contention that it was the
exclusive representative of the employees covered by the RA
petitions. When the Authority ruled in Bureau of Indian Affairs
II that OEA/NEA was not the exclusive representative of the
employees covered by the RA petitions, OEA/NEA's request did not
provide a basis for granting intervention pursuant to section
2422.5(a). Since OEA/NEA presented no other support for its
request for intervention, the Regional Director properly denied
the request on the ground that the request for intervention did
not meet the requirements under section 2422.5(a).
In its application for review before the Authority, OEA/NEA
argues, for the first time, that the Regional Director should
have given it the opportunity to amend its request for
intervention in response to the Authority's decision in Bureau of
Indian Affairs II. In support of its application for review,
OEA/NEA also submitted to the Authority a claimed 11 percent
showing of interest. We note that OEA/NEA at no time requested
that the Regional Director grant it an opportunity to amend its
intervention request nor did OEA/NEA submit its claimed 11
percent showing of interest to the Regional Director.
A labor organization seeking to intervene in a
representation proceeding under section 2422.5 of the Authority's
Rules and Regulations must present all contentions and arguments
concerning a request to intervene to the Regional Director, not
to the Authority in an application for review. OEA/NEA did not
seek permission from the Regional Director to amend its
intervention request based on the claimed 11 percent showing of
interest. OEA/NEA appears to be arguing that the Regional
Director is obligated to grant leave to amend a request for
intervention absent a request to do so. We reject this
contention. The Regional Director is not obligated to rule on
requests, petitions or motions not before him.
We find that the eleven (11) percent showing of interest
relied on by OEA/NEA does not provide a basis for granting
OEA/NEA's application because such evidence must be submitted to
the Regional Director, not to the Authority. The claimed showing
of interest developed in December of 1987, should have been
submitted to the Regional Director in support of OEA/NEA's
request for intervention. Instead, the showing of interest was
submitteddirectly to the Authority, on February 6, 1989, when the
showing of interest was more than 1 year old.
Further, we find no merit in OEA/NEA's argument that it
would have severely prejudiced OEA/NEA's legal position in cases
pending then before the Authority--that it was the incumbent
exclusive representative of the employees in the Navajo Area
units--if OEA/NEA had submitted its request for intervention
under the showing of interest requirement of section 2422.5(a).
Under section 2422.5(a), OEA/NEA was required to submit any and
all evidence and arguments, including alternative theories, to
support its request for intervention. We note that 41 days
elapsed between the Authority's decision in Bureau of Indian
Affairs II and the Regional Director's decision denying OEA/NEA's
request for intervention. OEA/NEA could have sought to amend its
request for intervention during that time. The fact that
it chose not to do so does not constitute extraordinary
circumstances for granting its application for review.
We also find that the application has not shown that the
Regional Director's decision was contrary to precedent. Rather
the decision was based clearly on the requirements of section
2422.5(a) of the Authority's Rules and Regulations. Finally, we
find that the application does not provide any other basis for
granting review under section 2422.17(c) of the Authority's Rules
and Regulations.
VII. Order
Accordingly, pursuant to section 2422.17(f)(3) of the
Authority's Rules and Regulations, OEA/NEA's application for
review is denied.