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50 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEFENSE COMMISSARY AGENCY

DEFENSE COMMISSARY STORE

FORT DRUM, NEW YORK

(Activity)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

SEIU, AFL-CIO

(Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 400, AFL-CIO

(Labor Organization)

BN-RO-40015

_____

DECISION AND ORDER ON REVIEW

March 16, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

In Defense Commissary Agency, Defense Commissary Store, Fort Drum, New York, 50 FLRA 7 (1994) (DeCA, Fort Drum), the Authority granted the labor organization's (AFGE's) application for review of the Regional Director's (RD's) decision and order denying AFGE's request to intervene in this case as to the following issues:

(1) Whether AFGE was entitled under section 2422.2(e)(3) of the Authority's Regulations to be served with a copy of NAGE's petition and, if so, whether the failure to serve AFGE with a copy of the petition improperly denied AFGE an opportunity to timely intervene in this case; [and] (2) whether AFGE is an "incumbent exclusive representative" so as to qualify as an intervenor under section 2422.5(c) of the Authority's Regulations.

DeCA, Fort Drum, 50 FLRA at 9. Subsequently, AFGE filed a supplemental brief and NAGE filed a brief in opposition to AFGE's position. The Activity did not file a brief.

For the following reasons, we find that AFGE was improperly denied an opportunity to timely intervene in this case. Accordingly, we remand the case to the RD to allow AFGE the opportunity to intervene in the proceeding.

II. Background and Regional Director's Decision ⁽¹⁾

Prior to the filing of its RO petition concerning the Fort Drum commissary store, NAGE had been the recognized exclusive representative of a base-wide bargaining unit of nonprofessional wage grade employees of the Department of the Army (DOA) at Fort Drum, including the wage grade commissary store employees. AFGE had been certified as the exclusive representative of a base-wide bargaining unit of all nonprofessional general schedule DOA employees, following an election in which general schedule commissary store employees were eligible to participate.

On October 1, 1991, the Defense Commissary Agency (DeCA) assumed control of all commissary stores within the Department of Defense, including the DOA commissary stores. In anticipation of that event, the national offices of AFGE and NAGE, in September 1991, entered into an agreement with DeCA which effectively provided that DeCA would continue to recognize as representatives of its employees the labor organizations that held recognition for those employees in DOA bargaining units. Pursuant to this agreement, NAGE continued to represent the wage grade commissary store employees at Fort Drum between October 1, 1991, and October 1, 1993. During that same period, AFGE represented the general schedule commissary store employees at Fort Drum in impact and implementation bargaining and other matters relating to those employees.

On November 30, 1993, NAGE filed the petition seeking an election in this case. The unit sought by the petition encompasses the general schedule and wage grade employees of DeCA's Fort Drum commissary store. DeCA posted a notice of petition, under section 2422.2 of the Authority's Regulations. AFGE was not served with a copy of NAGE's petition and did not seek to intervene in the proceeding within 10 days of the date of posting the notice under section 2422.5 of the Regulations.

On March 29, 1994, AFGE requested to intervene in the proceeding. The RD issued a decision and order denying AFGE's request to intervene on the basis that: (1) the request was not timely made under section 2422.5(c) of the Authority's Regulations; and (2) AFGE did not qualify to intervene as an "incumbent exclusive representative" within the meaning of section 2422.5(c) because AFGE had never been the exclusive representative of any employees of DeCA. In support of the latter conclusion, the RD found that "DeCA is not a successor employer and that any status that either AFGE or NAGE enjoyed as the exclusive representative of any Fort Drum [c]ommissary [s]tore employees was extinguished when those employees were transferred to DeCA." RD's Decision at 4. The RD also found that AFGE "ha[d] not submitted any evidence or made any attempt to show that good cause exists for excusing its failure to comply with the time limits set forth in" section 2422.5(c) for requesting intervention in the proceeding. Id. at 3.

III. Positions of the Parties

A. AFGE

AFGE maintains that it is entitled to intervene in the proceeding as an incumbent because the DeCA general schedule commissary store employees encompassed within the petitioned-for unit were part of its certified unit. AFGE also contends that it is a "known interested party" within the meaning of section 2422.2(e)(3) of the Authority's Regulations and, as such, NAGE was required to serve AFGE with a copy of NAGE's petition.⁽²⁾ AFGE also relies on sections 206.011 and 206.014 of the FLRA Representation Case Handling Manual (Manual)⁽³⁾ and the National Labor Relations Board Casehandling Manual. According to AFGE, NAGE was aware of AFGE's interest in the unit and NAGE's failure to serve AFGE with a copy of NAGE's petition prevented AFGE from intervening in a timely manner.

B. NAGE

NAGE contends that AFGE is not an incumbent exclusive representative because AFGE has never been a recognized or certified exclusive representative of any DeCA employees. NAGE also contends that because AFGE was never the exclusive representative of any DeCA employees, AFGE was not a "known interested party" within the meaning of section 2422.2(e)(3) of the Authority's Regulations. NAGE contends that it had no evidence or knowledge of AFGE having an interest in the Fort Drum commissary store employees.

IV. Analysis and Conclusions

We agree with the RD that AFGE did not qualify to intervene in this case as an "incumbent exclusive representative" under section 2422.5 of the Authority's Regulations. However, we find that AFGE was a "known interested party" under section 2422.5 and that NAGE should have served AFGE with a copy of the petition. For the reasons that follow, we set aside the RD's decision and order and remand the case to the RD to provide AFGE an opportunity to intervene.

A. AFGE Is Not an "Incumbent Exclusive Representative" under Section 2422.5 of the Authority's Regulations

Under section 2422.5 of the Authority's Regulations, a labor organization may intervene in a proceeding by timely filing with an RD a showing of interest based on, inter alia: (1) a current or recently expired agreement covering "any of the employees involved" in the proceeding; or (2) evidence that it is the representative of "any of the employees involved[.]" An "incumbent exclusive representative" is entitled to intervene without fulfilling timeliness or other requirements.⁽⁴⁾

Concluding that an exclusive representative has "incumbent" status based on representation of "any of the employees" involved in a proceeding would render meaningless and, in effect, nullify the timeliness and other requirements of section 2422.5 as they are applied to representatives of "any of the employees." This result would be anomalous. Accordingly, we find that a labor organization may not qualify as an "incumbent" based only on representation of some of the petitioned-for employees. Instead, a union qualifies as an "incumbent" only when it is the exclusive representative of all the employees in the unit sought by a petition, either in the unit covered by the petition or as part of a larger unit, only a portion of which is involved in the proceeding.⁽⁵⁾

In the instant case, AFGE was not the exclusive representative of all the employees in the unit sought by NAGE's petition. Therefore, AFGE was not entitled to intervene as an incumbent exclusive representative under section 2422.5(a) and (c) of the Regulations.

B. AFGE Was Improperly Denied the Opportunity to Intervene in NAGE's Petition

Section 2422.2(e)(3) of the Authority's Regulations requires a petitioner to serve copies of the petition on all known interested parties. We find that the term "all known interested parties" (as used in section 2422.2(e)(3)) includes any labor organization whose interest in the proceeding is known or should have been known to the petitioner. We will determine whether there are any known interested parties which were required to be served with a copy of a petition based on the facts and circumstances of each case.

We find that the facts and circumstances of this case demonstrate that AFGE had an interest in this proceeding. AFGE had represented general schedule commissary store employees between October 1991 and October 1993 pursuant to an agreement with DeCA. We also find that the facts and circumstances of this case demonstrate that NAGE knew or should have known that AFGE had an interest in this proceeding. The aforementioned agreement with DeCA was signed by both AFGE and NAGE and, during the same time period, both AFGE and NAGE were designated as recipients of copies of DeCA correspondence (and expressly designated as such on the face of the correspondence) concerning personnel procedures affecting the Fort Drum commissary store employees.

As NAGE knew or should have known that AFGE was an interested party, NAGE was required under our Regulations to serve AFGE with a copy of the petition. NAGE's failure to serve AFGE deprived AFGE of the opportunity to intervene within the time period prescribed by section 2422.5(c) of the Regulations and constituted good cause under section 2422.5(c) for extending the time during which AFGE could file a request to intervene in the proceeding. The RD erred in failing to so conclude. See, for example, U.S. Department of Defense, Defense Industrial Plant Equipment Center, Memphis, Tennessee, 34 FLRA 114, 117-19 (1989). Accordingly, we remand the case to the RD to allow AFGE the opportunity to intervene, as provided in the following Order.

V. Order

The RD's decision and order denying AFGE's request to intervene in this case is set aside. The case is remanded to the RD, who is directed to allow AFGE to intervene, provided that, if it has not already done so, it comply with the requirements of section 2422.5(a) of our Regulations within 10 days of the date of this decision.

APPENDIX

The Manual provides in relevant part:⁽⁶⁾

Chapter 6. Intervention in RO . . . Case[]

Section 1. Notifying Interested Labor Organizations

206.011 Interested Parties. Any labor organization considered to have a possible interest in an RO . . . proceeding should be notified of the filing of such a petition. The term "interested party" is applicable to:

a. The petitioning labor organization . . . ;

. . . .

c. Any labor organization named in Item 5 of FLRA Form 21 as being currently recognized or certified exclusive representative which is a party to a current or recently expired agreement, if any, covering any of the employees involved;

d. Any labor organization named in Item 7 of FLRA Form 21 as having shown an interest in representing any of the employees in the unit involved;

e. Any labor organization not listed in the petition whose name has been obtained by the Regional Office from the activity, as having a possible interest in any of the employees; or

f. Any labor organization named as an interested party in any case closed within the past two (2) years involving the same employees sought by the petition.

The term "interested party" is to be defined broadly so as to insure the widest possible base for the receipt of notification of the filing of a petition. . . .

. . . .

206.014 Labor Organizations Named on the Petition. Items 5 and 7 of the petition must be examined for any incumbent labor organization and other interested labor organization(s), if any, to whom notification should be sent of the filing of an RO . . . petition. However, items 5 and 7 should not be relied upon exclusively for such information. During the initial telephone conversation with the activity regarding the filing of any such petition, inquiry should routinely be made as to whether there are any currently recognized or certified or other interested labor organizations of any of the employees in the unit involved, in addition to any which may be indicated in items 5 and 7 of the petition.

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

1. See also the statement of the background and the RD's decision set forth in DeCA, Fort Drum, 50 FLRA at 7-9.

2. Section 2422.2(e)(3) provides:

Copies of the petition . . . shall be served by the petitioner on all known interested parties, and a written statement of such service shall be filed with the Regional Director [.]

3. The cited sections of the Manual are set forth in the Appendix to this decision.

4. Section 2422.5 of the Authority's Regulations provides in relevant part:

(a) No labor organization will be permitted to intervene in any proceeding . . . unless it has submitted to the Regional Director a showing of interest of ten percent (10%) or more of the employees in the unit specified in the petition . . . , or has submitted a current or recently expired agreement with the activity covering any of the employees involved, or has submitted evidence that it is the currently recognized or certified exclusive representative of any of the employees involved: Provided, however, That an incumbent exclusive representative shall be deemed to be an intervenor in the proceeding unless it serves on the Regional Director a written disclaimer of any representation interest for the employees in the unit sought . . . .

. . . . 

(c) No labor organization may participate to any extent in any representation proceeding unless it has notified the Regional Director in writing, accompanied by its showing of interest as specified in paragraph (a) of this section, of its desire to intervene within ten (10) days after the initial date of posting of the notice of petition as provided in § 2422.4(a), unless good cause is shown for extending the period. . . . Provided, however, That an incumbent exclusive representative shall be deemed to be an intervenor in the proceeding in accordance with paragraph (a) of this section.

5. In view of this standard, we reject the rationale used by the RD in concluding that AFGE was not an incumbent.

6. FLRA Form 21 was revised in August 1988. References to Items 5 and 7 in the Manual are currently found at Items 9 and 12 of FLRA Form 21.

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