[ v56 p926 ]

56 FLRA No. 153

SMALL BUSINESS ADMINISTRATION
(Agency)

and

JEFFREY W. EISINGER
(Petitioner/Individual)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
(Exclusive Representative/Labor Organization)

SF-RP-80004
(54 FLRA 562 (1998)

_____

DECISION AND ORDER ON REMAND

October 18, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This matter is before the Authority pursuant to a decision of the United States Court of Appeals for the Ninth Circuit in Eisinger v. Federal Labor Relations Authority, 218 F.3d 1097 (9^th Cir. 2000). The court reversed the Authority's decision in 54 FLRA 562 (1998), which dismissed a petition filed by Jeffrey Eisinger, as an individual, seeking to clarify or amend a certification of a bargaining unit of the Agency. The Authority had upheld a decision of its Regional Director, concluding that such a petition may be filed only by an agency or a labor organization under section 2422.2(c) of the Authority's Regulations. For the following reasons, we vacate our decision in 54 FLRA 562 and remand the matter to the Regional Director.

II.     Background

      Eisinger's petition sought clarification of, or an amendment to, a certification of exclusive representative for a consolidated unit of employees of the Agency. The Authority granted review of the Regional Director's decision dismissing the petition because of an absence of precedent regarding the petitioner's assertion that sections 7111(b)(2) and 7103(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) require that the Petitioner be permitted to file a petition for clarification or amendment of certification as an individual.

      Section 7111(b)(2) provides that if a petition is filed by "any person seeking clarification of, or an amendment to, a certification then in effect . . . the Authority shall investigate the petition," and section 7103(a)(1) defines "person" as "an individual, labor organization, or agency[.]"

      Section 2422.2(c) of the Authority's Regulations provides:

§ 2422.2 Standing to file a petition.

A representation petition may be filed by: an individual; a labor organization; two or more labor organizations acting as a joint-petitioner; an individual acting on behalf of any employee(s); an agency or activity; or a combination of the above: Provided, however, that

. . . .

(c)     Only an agency or a labor organization may file a petition [seeking to clarify and/or amend a recognition of certification in effect and/or any other matter relating to representation] pursuant to section 2422.1(b) or (c).

      For the reasons set forth in concurring opinions filed by Chair Segal and Member Wasserman (Member Cabaniss dissenting), the Authority found that section 2422.2 of the Regulations is not inconsistent with the Statute, and affirmed the decision of the Regional Director that the petition must be dismissed because the Petitioner lacks standing to file.

III.     Court's Decision in Eisinger v. FLRA

      The court determined that the referenced statutory provisions and Authority Regulations are in conflict, and that the statutory language permitting "any person" to file a petition such as here is unambiguous. Accordingly, the court concluded that the Authority's regulation limiting filing to an agency or a labor organization "oversteps the bounds established by Congress." Eisinger v. Federal Labor Relations Authority, 218 F.3d at 1105.

IV.     Decision

      Applying the court's decision to this case, we vacate our decision in 54 FLRA 562, and remand the matter to the Regional Director for further proceedings consistent with this decision.

V.     Order

      The Authority's decision in 54 FLRA 562 is vacated and the case is remanded to the Regional Director for appropriate action.

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