[ v60 p709 ]
60 FLRA No. 134
UNITED STATES
DEPARTMENT OF THE ARMY
MILITARY TRAFFIC
MANAGEMENT COMMAND
ALEXANDRIA, VIRGINIA
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 909/2, AFL-CIO
(Labor Organization/Petitioner)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2855, AFL-CIO
(Labor Organization/Applicant)
WA-RP-02-0063
AND
UNITED STATES
DEPARTMENT OF THE ARMY
MILITARY TRAFFIC
MANAGEMENT COMMAND
ALEXANDRIA, VIRGINIA
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2855, AFL-CIO
(Labor Organization/Petitioner/Applicant)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 909/2, AFL-CIO
(Labor Organization)
WA-RP-03-0018
_____
DECISION AND ORDER
DENYING APPLICATION FOR REVIEW
March 9, 2005
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority pursuant to the Authority's decision in United States Dep't of the Army, Military Traffic Mgmt. Command, Alexandria, Va., 60 FLRA 390 (2004) (MTMC) (Chairman Cabaniss concurring in part and dissenting in part). In MTMC, the Authority granted in part and denied in part an application for review of a decision of the Regional Director (RD) filed by the American Federation of Government Employees (AFGE) Local 2855 (Local 2855).
For the reasons that follow, we vacate our decision in MTMC to grant the application for review in part, and we deny the application.
II. Background and Decision in MTMC
As set forth in detail in MTMC, a reorganization occurred that combined the Military Traffic Management Command Headquarters, whose unit employees were represented by the AFGE Local 909/2 (Local 909/2), with one of its subordinate commands, the Deployment Support Command, whose unit employees were represented by Local 2855. Both Locals filed petitions seeking a determination of the effect of the reorganization on their respective units. The RD determined, as relevant here, that following the reorganization, the former separate units represented by the Locals were no longer appropriate and, instead, a new unit comprised of all formerly represented employees was appropriate. He determined that Local 909/2 was the representative of that unit.
Local 2855 filed an application for review of the RD's decision, claiming, as relevant here, that an election was required to determine which Local represented the new unit because Local 909 was not "sufficiently predominant." MTMC, 60 FLRA at 395 (citing Application at 8). On review, the Authority concluded, in pertinent part, that the application raised "a genuine issue over whether the RD has failed to apply established law" by failing to order an election between Local 2855 and Local 909/2. Id. at 396. Noting that the disputing unions are locals of the same union, a majority of the Authority found it "unclear from the Authority's established law" whether this dispute raised a question of representation for which an election is required under the Federal Service Labor-Management Relations Statute [ v60 p710 ] (the Statute). Id. at 396. Accordingly, the Authority "directed" the parties to address the following:
Under what circumstances, if any, does § 7111(b) of the Statute provide for an election to be directed where two groups of employees represented by separate locals of the same union are combined into a single bargaining unit?
What standard should be applied to determine whether, in circumstances following an agency reorganization, an election should be held when competing claims of recognition are made by two locals of the same national labor organization?
Id. at 396.
No briefs were filed in response to the Authority's decision in MTMC.
III. Analysis and Conclusion
In response to the Authority's decision in MTMC, none of the parties provided any argument that the Statute requires an election in the circumstances of this case, or offered any argument on what standard would determine whether an election is required -- the specific questions that the Authority, in MTMC, directed the parties to address. More specifically, in response to the Authority's decision in MTMC, Local 2855 -- the party filing the application and requesting an election -- has provided no argument or evidence that the RD erred in failing to direct an election. We note, in this regard, that § 2422.15(c) of the Authority's Regulations requires parties to "cooperate in every aspect of the representation process." We also note that the Authority has held, in a related context, that an Authority-run election should not be undertaken "where there is no reasonable assurance that a genuine representation question exists[.]" United States Dep't of Transp., United States Coast Guard Fin. Ctr., Chesapeake, Va., 34 FLRA 946, 949 (1990). Accord Dep't of the Army, United States Army Aviation Missile Command (AMCOM) Redstone Arsenal, Ala., 56 FLRA 126, 131 (2000).
In these circumstances, we find that Local 2855 has, in effect, abandoned the claim in its application for review that the RD erred by failing to direct an election and that the parties no longer have sufficient interest in that issue. Cf. Fed. Serv. Impasses Panel, 46 FLRA 1335, 1337 (1993) (Authority denied request for ruling on major policy issue based, in part, on fact that no comments were filed in response to Authority's request). Accordingly, without addressing the issue further, we vacate our initial, partial grant of the application, and we deny the application. [n2]
IV. Decision
The partial grant of the application for review in MTMC is hereby vacated, and the application for review is denied. [ v60 p711 ]
Concurring opinion of Chairman Cabaniss:
I write separately to note that I reaffirm my belief in the original case that the Authority should have gone ahead and ordered an election at that time. However, I agree that it is appropriate in the circumstances of this case to deny the application for review where the parties fail to respond to the Authority's briefing request to address the issue upon which the application for review was granted.
Opinion of Member Armendariz
I would resolve the merits of the issue on which the application for review was granted.
The fact that no briefs were filed in response to the Authority's direction to do so does not warrant reversing the Authority's earlier determination to grant the application and consider the legal issue raised by the application. AFGE Local 2855 set forth its arguments in its application for review. Those arguments were persuasive enough for the Authority to grant the application on whether the Regional Director (RD) failed to apply established law by not directing an election in this case. Nothing in our Regulations authorizes the Authority to take the unprecedented action of denying an application for review, after having granted it, simply because a party has not supplemented its previously set forth arguments by failing to file a brief.
Moreover, nothing in the Authority's grant of the application gave notice to AFGE Local 2855 that failure to file a brief could or would result in the Authority reversing itself and throwing out the application. Such a lack of notice to a party of the possible consequences of failing to file a brief is fundamentally unfair, and stands in marked contrast to the Authority's consistent practice of advising parties that failure to comply with procedural requirements may result in dismissal of their claims. Further, the logic of the Authority's order could apply equally as well to the other union in this case (AFGE Local 909/2) and could yield the opposite result; namely, in view of the fact that AFGE Local 909/2 did not file any argument in opposition to AFGE Local 2855's application for review, the Authority should treat its failure to file a brief as a concession that AFGE Local 2855's view should prevail, and the Authority should order an election on this basis alone.
Finally, there have been several instances in which the Authority resolved applications for review where parties have not filed briefs after the applications were granted, despite having been given the opportunity to do so. See, e.g., United States Dep't of Health and Human Services, Administration for Children and Families, Washington, D.C., 47 FLRA 247 (1993); United States Dep't of Housing and Urban Development, Washington, D.C., 35 FLRA 1249, 1250 (1990); 832nd Combat Support Group, Luke AFB, Arizona, 23 FLRA 768, 768-69 (1986). The fact that the Authority "directed" the parties to file briefs here does not compel a different result, particularly in light of the fact that the Authority has never before taken such an action in a representation case and did not give AFGE Local 2855 any notice that [ v60 p712 ] failure to file a brief would be viewed as an abandonment of its claim.
Accordingly, consistent with the Authority's responsibility under § 7105(a)(2)(A) and (B) of the Statute to determine the appropriateness of units and administer the provisions of § 7111 of the Statute, I would resolve the application to determine whether an election should be held in this case. With respect to the two questions on which the Authority granted the application, I would answer them as follows.
Where two groups of employees represented by separate locals of the same union are combined into a single bargaining unit, § 7111(b) of the Statute provides for an election to be directed in the same circumstances as when any other unions, or locals of different unions, are combined into a single bargaining unit. These circumstances are specified in Def. Logistics Agency, Def. Supply Ctr. Columbus, Columbus, Ohio, 53 FLRA 1114, 1134 (1998) (DLA Columbus) (the Authority directed an election between two unions on the ground that both unions represented employees in a new unit, in "virtually equal" numbers, and that, as a result, neither union was "sufficiently predominant") and Dep't of the Army, United States Army Aviation Missile Command (AMCOM) Redstone Arsenal, Ala., 56 FLRA 126, 131 (2000) (absent "special circumstances," a union is "sufficiently predominant," and no election is required, if the union "represents more than seventy percent of the employees in [the] newly combined unit").
The record shows that, in this case, neither AFGE Local 909/2 nor AFGE Local 2855 is "sufficiently predominant." Morever, the record does not establish any "special circumstances." In this regard, the fact that the two groups of employees who are being combined into a single bargaining unit are currently represented by separate locals of the same union does not offer any support for a conclusion that the employees should be deprived of the ability to choose for themselves which of the two unions they want to serve as their representative. Unfortunately, that is the effect of today's decision.
Consequently, I would direct the RD to order an election.
Footnote # 1 for 60 FLRA No. 134 - Authority's Decision
Chairman Cabaniss' concurring opinion and Member Armendariz's dissenting opinion are set forth at the end of this decision.
Footnote # 2 for 60 FLRA No. 134 - Authority's Decision
As this results from Local 2855's own inaction, we see no unfairness presented by our decision here or by the fact that the decision below did not forecast this possibility.