[ v34 p428 ]
34:0428(77)CA
The decision of the Authority follows:
34 FLRA NO. 77
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
NAVAJO AREA, GALLUP, NEW MEXICO
(Activity)
and
NATIONAL COUNCIL OF BUREAU OF
INDIAN AFFAIRS EDUCATORS
(Petitioner)
6-AC-70006
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
ALBUQUERQUE, NEW MEXICO
(Activity)
and
NATIONAL COUNCIL OF BUREAU OF
INDIAN AFFAIRS EDUCATORS
(Petitioner)
6-AC-70005
UNITED STATES DEPARTMENT OF THE
INTERIOR, BUREAU OF INDIAN AFFAIRS
ALBUQUERQUE, NEW MEXICO
(Activity)
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)
6-RA-70001
UNITED STATES DEPARTMENT OF THE
INTERIOR, BUREAU OF INDIAN AFFAIRS
NAVAJO AREA OFFICE
GALLUP, NEW MEXICO
(Activity)
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)
6-RA-70002
6-RA-80001
(33 FLRA 482)
ORDER DENYING MOTION FOR RECONSIDERATION AND RELATED MOTIONS AND
REQUESTS
January 19, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on motion of the
Department of the Interior (Interior) for reconsideration of the
Authority's decision in U.S. Department of the Interior, Bureau
of Indian Affairs, Navajo Area, Gallup, New Mexico, 33 FLRA 482
(1988) (Bureau of Indian Affairs II). While Interior's motion for
reconsideration was pending before the Authority, Interior
submitted the following: (1) a request to file a supplemental
response to its motion for reconsideration; (2) a motion to
reopen the case based upon new evidence; (3) a motion to reopen
the case based upon new evidence and to hold its motion for
reconsideration in abeyance until receipt of a decision of an
administrative law judge; (4) a response to the General Counsel's
response to Interior's earlier motion; (5) additional attachments
to its motion for reconsideration; and (6) a renewal of its
request for a stay and remand of the cases for a hearing.
The National Council of Bureau of Indian Affairs Educators
(NCBIAE), affiliated with the American Federation of Teachers
(AFT), filed oppositions to Interior's: (1) motion for
reconsideration; (2) request to file a supplemental response to
its motion for reconsideration; (3) motion to reopen the case
based upon new evidence; and (4) renewed request for stay. The
General Counsel of the Authority filed a response to Interior's
motion to reopen the case based upon new evidence and to hold
motion for reconsideration in abeyance until receipt of decision
of an administrative law judge.
For the reasons set forth below, we deny Interior's motions
and its requests for a stay and remand of the cases for a
bearing.
II. Background
Interior's request for reconsideration results from a
dispute between Interior and NCBIAE which began in August 1987.
NCBIAE was certified as the exclusive representative for the
Navajo Area unit on December 10, 1971, and for the
Albuquerque Area unit on May 26, 1972. At the time of these
certifications, NCBIAE was affiliated with the National Education
Association (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 petitions in Case Nos.
6-AC-70005 and 6-AC-70006 seeking to amend its certifications
covering the 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 in Case Nos.
6-RA-70001 and 6-RA-70002 questioning the continued majority
status of NCBIAE.
On October 21, 1987, the Regional Director issued his
original decisions in Case Nos. 6-AC-70005 and 6-AC-70006. The
Regional Director granted NCBIAE's two AC petitions and amended
its certifications to reflect the change in affiliation from NEA
to AFT. The Regional Director found that NCBIAE had followed the
proper procedures for changing the affiliation of an exclusive
representative as set forth by the Assistant Secretary of Labor
for Labor Management Relations in Veterans Administration
Hospital, Montrose, New York, 4 A/SLMR 859, 860 (1974), review
denied, 3 FLRC 259 (1975) (Montrose), and adopted by the
Authority in Florida National Guard, St. Augustine, Florida, 25
FLRA 728, 729 (1987) (Florida National Guard).
Subsequently, on November 2, 1987, Interior filed a third RA
petition in Case No. 6-RA-80001 questioning the continued
majority status of NCBIAE. On November 10, 1987, and November 13,
1987, the Regional Director dismissed Interior's three RA
petitions in Case Nos. 6-RA-70001, 6-RA-70002 and 6-RA-80001. The
Regional Director determined that Interior had presented
insufficient evidence to support the claim that NCBIAE no longer
represented a majority of the employees in the existing units.
The Regional Director also found that Interior's argument that
AFT condones strikes was irrelevant to the issues in these cases.
The Regional Director further found that Interior presented no
evidence to indicate that AFT has either condoned or encouraged
NCBIAE to engage in any strike activity.
On November 18, 1987, Interior filed two more RA petitions
(Case Nos. 6-RA-80002 and 6-RA-80003) questioning the continued
majority status of NCBIAE/AFT. By letter dated December 2, 1987,
the Regional Director informed Interior that he was
holding Interior's last two RA petitions in abeyance until his
decisions on Interior's first three RA petitions became final.
The Regional Director stated that he was taking this action
because all five RA petitions raised the same issue: whether
NCBIAE/AFT continued to represent a majority of the employees in
the Navajo and Albuquerque Area units.
On December 16, 1987, Interior filed a timely application
for review with the Authority seeking to set aside the Regional
Director's decisions granting NCBIAE's requests to amend its
certifications to reflect the change in affiliation from NEA to
AFT (Case Nos. 6-AC-70005, 6-AC-70006), and his decisions
dismissing Interior's RA petitions (Case Nos. 6-RA-70001,
6-RA-70002 and 6-RA-80001). Interior also filed a request to stay
the Regional Director's decisions in Case Nos. 6-AC-70005 and
6-AC-70006 pending final action on its application for review. On
December 21, 1987, NEA also filed a timely application for review
with the Authority seeking to set aside the Regional Director's
decisions in Case Nos. 6-AC-70005 and 6-AC-70006.
On February 12, 1988, the Authority granted the applications
for review filed by Interior and 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).
Subsequently, on April 22, 1988, the Authority remanded the cases
to the Regional Director. 31 FLRA 1306 (1988).
The Authority found that the Regional Director's decisions
contained the following "inconsistent findings on an issue
critical to the outcome" of the cases: (1) the original
certifications had issued to NCBIAE and not NEA; and (2) NEA had
been inadvertently omitted from the certifications. Because of
these inconsistent findings, the Authority remanded the cases to
the Regional Director "for clarification on which entity was
certified as the exclusive representative." Id. at 1308.
On July 21, 1988, the Regional Director issued his
Supplemental Decision and Order in which he affirmed his earlier
decisions concerning the two AC petitions filed by NCBIAE (Case
Nos. 6-AC-70005, 6-AC-70006) and the three RA petitions filed by
Interior (Case Nos. 6-RA-70001, 6-RA-70002, 6-RA-80001). The
Regional Director determined that Interior recognized NCBIAE--not
NEA--as the exclusive representative of the Navajo and
Albuquerque Area units and affirmed his previous finding
that NCBIAE had satisfied the requirements applicable to changing
its affiliation from NEA to AFT.
On September 19, 1988, Interior and NEA timely filed
applications for review of the Regional Director's Supplemental
Decision and Order with the Authority.
III. The Authority's Decision in Bureau of Indian Affairs II
On October 27, 1988, the Authority denied the applications
for review of the Regional Director's Supplemental Decision and
Order. Bureau of Indian Affairs II.
The Authority rejected Interior's argument that its rights
were violated because Interior was required to file an
application for review of the Regional Director's Supplemental
Decision and Order. The Authority found that because the Regional
Director's Supplemental Decision and Order was a decision
separate and apart from his earlier decisions, the only method
for Interior to appeal the Regional Director's Supplemental
Decision and Order was to file an application for review pursuant
to section 2422.17(a) of the Authority's Rules and Regulations.
Bureau of Indian Affairs II, 33 FLRA at 490-91.
The Authority stated that a number of the questions raised
by Interior and NEA might have been avoided if the Regional
Director had held a hearing rather than conducting an
investigation. The Authority found, however, that the Regional
Director's use of an investigation was not clearly erroneous
under section 2422.17(c) of the Authority's Rules and
Regulations. Id. at 491. See also Department of the Navy, Naval
Resale Activity, Navy Exchange, Hawaii, 27 FLRA 816 (1987). The
Authority concluded that Interior's and NEA's preference for a
hearing was not a compelling reason for granting their
applications for review.
The Authority found further that the record developed from
the Regional Director's investigation supported the Regional
Director's factual determinations and that Interior and NEA did
not demonstrate that any of the Regional Director's findings or
conclusions on any substantial factual issue were clearly
erroneous. The Authority also found that (1) the applications did
not show that the Regional Director's decision was contrary to
precedent, and (2) the Regional Director's decision was based on
clearly established Authority and private sector precedent.
In summary, the Authority found that compelling reasons,
within the meaning of section 2422.17(c) of the Authority's Rules
and Regulations, did not exist for granting review of the
Regional Director's Supplemental Decision and Order. The
Authority stated that the Regional Director's findings and
conclusions were based on record evidence, were not erroneous and
did not prejudicially affect the rights of any party. Bureau of
Indian Affairs II, 33 FLRA at 491. Consequently, the Authority
denied the applications for review of the Regional Director's
Supplemental Decision and Order filed by Interior and NEA.
IV. Motions and Oppositions
Interior has filed numerous motions and requests with the
Authority. NCBIAE/AFT and the General Counsel have filed various
oppositions to Interior's filings. These filings are set out
below.
A. Interior's Motion for Reconsideration
1. Interior's Position
Interior timely filed a motion for reconsideration of the
Authority's Order in Bureau of Indian Affairs II. Interior
contends that extraordinary circumstances exist to warrant
reconsideration of the Authority's decision because the
Authority: (1) ignored critical issues raised by Interior before
the Regional Director and the Authority; (2) departed from
precedent without an explanation or rationale; and (3) refused to
require the Regional Director to hold a hearing to resolve
factual issues and disputes in violation of Interior's rights
under the Statute.
Interior claims that two critical issues which it raised
before the Regional Director and the Authority were ignored by
the Authority. First, Interior claims that the Authority did not
address its assertion that AFT does not satisfy the definition of
"labor organization" in section 7103(a)(4) of the Statute because
it advocates the right to strike. Interior contends that a second
critical issue raised by Interior but ignored by the Authority
concerns whether NCBIAE/AFT represents a majority of the
employees in the Navajo and Albuquerque Area Offices. Interior
asserts that although there are approximately 1100 employees in
the Albuquerque and Navajo Area offices, NCBIAE sent only 100
ballots when it held its mail ballot affiliation vote to change
its affiliation from NEA to AFT.
Interior also contends that the Authority departed from
precedent without rationale. According to Interior, the Regional
Director should have concluded that NCBIAE did not follow the
proper procedures for changing affiliation, as established in
Montrose and Florida National Guard, and the Authority should
have found that NCBIAE did not properly change its affiliation
from NEA to AFT.
Interior also claims that the Authority's refusal to require
the Regional Director to hold a hearing constitutes a denial of
its rights under the Statute. According to Interior, "the
Regional Director ignored our evidence and either manufactured
his own evidence or per se adopted the union's version of the
facts without a hearing." Motion for Reconsideration at 8.
2. NCBIAE/AFT's Opposition to Interior's Motion for
Reconsideration
NCBIAE/AFT contends that Interior has not established any
"extraordinary circumstances" that would justify reconsideration
of the Authority's decision. NCBIAE/AFT contends that Interior is
merely rearguing the case.
NCBIAE/AFT claims that there is no merit in Interior's
argument that AFT does not qualify as a labor organization within
the meaning of section 7103(a)(4) of the Statute. NCBIAE/AFT
argues that Interior has not shown that AFT has participated in
the conduct of a strike against the Government or that it imposes
on its members a duty or obligation to conduct, assist or
participate in such a strike. Moreover, NCBIAE/AFT alleges that
Interior's charge that the Authority failed to adequately
consider AFT's status pursuant to section 7103(a)(4) does not
present "extraordinary circumstances" warranting
reconsideration.
NCBIAE/AFT also contends that there is no evidence to
indicate that the Authority did not properly apply the decision
in Montrose. NCBIAE/AFT argues that the record is clear that the
Montrose requirements were met.
Finally, NCBIAE/AFT contends that Interior's argument that
the Regional Director should have held a hearing in this case is
clearly without merit. According to NCBIAE/AFT, Authority
precedent clearly indicates that there is no requirement that a
hearing be held.
B. Interior's Request to File a Supplemental Response to Its
Motion for Reconsideration
1. Interior's Position
While Interior's motion for reconsideration was pending
before the Authority, Interior submitted a "request to file a
supplemental response (sic) to its motion for reconsideration."
Interior bases its request on an appeal by the Overseas Education
Association/National Education Association (OEA/NEA) of the
Regional Director's dismissal of OEA/NEA's request to intervene
in Case Nos. 6-RA-80002 and 6-RA-80003. According to Interior:
(1) OEA/NEA's appeal included a showing of interest for OEA/NEA
by employees in the bargaining units represented by NCBIAE/AFT,
and (2) the showing of interest establishes a good faith doubt as
to the majority status of NCBIAE/AFT. Interior requests that an
election be held or that the case be remanded to the Regional
Director for a hearing.
2. NCBIAE/AFT's Opposition to Interior's Request to File a
Supplemental Response to Its Motion for Reconsideration
NCBIAE/AFT opposes Interior's "continued improper efforts to
supplement the record" in support of its pending Motion for
Reconsideration. Opposition at 1. Further, NCBIAE/AFT opposes
Interior's "reliance on a stale showing of interest submitted by
the Overseas Education Association/NEA as a basis for filing its
Supplemental Response." Id.
C. Interior's Motion to Reopen Case Based Upon New
Evidence
1. Interior's Position
While Interior's motion for reconsideration and its request
to file a supplemental response to its motion were pending before
the Authority, Interior filed a motion to reopen case based upon
new evidence. Interior bases its motion on information contained
in Department of Labor LM-3 forms which it attached to its
motion.
Interior alleges that these forms show that NCBIAE has not
had annual meetings or conducted annual elections of officers, as
required by its constitution, since 1984. Interior contends that
because NCBIAE's Executive Board ignored these constitutional
requirements, the Executive Board has not been legally
constituted. Consequently, Interior alleges that there
is a question of propriety of the Executive Board's vote to
affiliate with AFT.
Interior contends further that because there was neither an
annual meeting nor a special meeting for the affiliation
election, there was no opportunity for NCBIAE members to question
the union's finances as controlled by the Executive Board.
Interior concludes that based on these factors, the Regional
Director erred by not requiring NCBIAE to hold a special meeting
for members to vote on affiliation.
Further, Interior alleges that the individual who signed the
LM-3 forms as NCBIAE's president is a supervisor who was
instructed "to cease and desist his union activities." Motion to
Reopen Case at 6. Interior argues that the supervisor's
activities on behalf of NCBIAE constitute a "per se conflict of
interest." Id.
In conclusion, Interior requests that the Authority reopen
the cases decided in Bureau of Indian Affairs II and order that a
hearing be held on issues raised by those cases and the
subsequently filed RA petitions.
2. NCBIAE/AFT's Response to Interior's Motion to Reopen Case
Based Upon New Evidence
NCBIAE/AFT continues "(to) take() strong exception to the
Agency's continued improper efforts to supplement the record in
support of their pending Motion for Reconsideration." Opposition
at 1.
D. Motion to Reopen Case and to Hold Motion for
Reconsideration in Abeyance Until Receipt of Decision of
Administrative Law Judge
1. Interior's Position
Interior requests the Authority to reopen Bureau of Indian
Affairs II in order to consider evidence it contends is newly
discovered. Interior also requests the Authority to hold its
previously filed motion for reconsideration in abeyance until the
Administrative Law Judge issues decisions in Case Nos.
6-CA-80028, 6-CA-80040, 6-CA-80064, 6-CA-80123 and 6-CA-90122.
Interior provides no information in its motion concerning the
issues involved in the unfair labor practice cases.
Interior supports its motion with four attached documents:
(1) an affidavit dated May 22, 1989, by Patrick Carr, former
President of NCBIAE/AFT, alleging undue interference by
AFT representatives with the operations of NCBIAE/AFT; (2)a
December 21, 1988, letter from Patrick Carr to Albert Shanker,
National President of AFT, alleging improper and unlawful
interference and manipulation by Elmer Jackson, the AFT field
representative assigned to assist NCBIAE/AFT; (3) a May 2, 1989,
letter from the National Secretary - Treasurer of AFT to Patrick
Carr and Ms. Fanny Bahe, President of NCBIAE/AFT, answering the
charges made by Carr in his December 21, 1988, letter and (4) an
August 3, 1988, letter to Patrick Carr from NCBIAE/AFT's attorney
concerning the status of a Clarification of Unit (CU) Petition
filed on Carr's behalf. In the May 2, 1989, letter, the National
Secretary - Treasurer of AFT concludes that the October 1988
elections for NCBIAE/AFT officers were not held in accordance
with the NCBIAE/AFT Constitution and Bylaws and recommends that
new elections be held.
Interior claims that the new evidence contained in the
attachments raises serious questions about the propriety of the
Regional Director's decisions, and raises sufficient doubt as to
the correctness of those decisions to require a reconsideration
of the entire case. Interior contends further that the evidence
clearly supports its position that there were improprieties
involved in NCBIAE's change of affiliation from NEA to AFT.
Consequently, Interior requests that its "motion for
reconsideration" be held in abeyance until the issuance of
decisions by the Administrative Law Judge in the unfair labor
practice cases.
2. The General Counsel's Response to Interior's Motion to
Reopen Case and to Hold Motion for Reconsideration in Abeyance
Until Receipt of Decision of Administrative Law Judge
The General Counsel filed a response to Interior's motion to
reopen case based upon new evidence and to hold motion for
reconsideration in abeyance until receipt of decision of
administrative law judge.
The General Counsel contends that (1) the attachments to
Interior's motion should not be considered because they were not
presented to the Regional Director or to the Authority in
investigation or review of representation cases, as required by
section 2429.5 of the Authority's Rules and Regulations; (2)
Interior's motion constitutes a separate motion for
reconsideration and, as a result, is untimely because it was not
filed within 10 days after the Authority issued its decision in
Bureau of Indian Affairs II, as required by section 2429.17 of
the Authority's Rules and Regulations; and (3) the
evidence submitted by Interior was not newly discovered but was
previously available to Interior and could have been presented to
the Regional Director or the Authority prior to the issuance of
Bureau of Indian Affairs II.
The General Counsel describes the unfair labor practice
cases which are referenced in Interior's motion as follows:
The . . . unfair labor practice proceeding (to which
Interior is a charged party) involve unfair labor practices which
involve the Department of the Interior, Bureau of Indian Affairs,
and its local activities (sic) refusal to comply with the
Authority's decision in (Bureau of Indian Affairs II), by
withholding recognition from the certified Union, refusing to
turn over dues to the Union, refusing to recognize and deal with
its appointed representatives and by providing assistance to a
rival labor organization.
General Counsel's Response at 6.
The General Counsel states that the Administrative Law Judge
decided to hold his decisions in abeyance until the Regional
Office takes action pursuant to the Authority's decision on
Interior's motion for reconsideration. Because the unfair labor
practice cases are being held in abeyance by the Administrative
Law Judge, the General Counsel alleges that Interior's motion
that the Authority hold its motion for reconsideration in
abeyance is an attempt "to create a situation where the Authority
will not act as it is waiting for the Administrative Law Judge to
act, who will not act as he is waiting for the Region to act, who
cannot act until the Authority acts." Id. According to the
General Counsel, Interior is seeking "postponement for
infinity(.)" Id. The General Counsel asserts also that
"Interior's attempt to delay the processing of these cases is
designed to undermine that status of the certified
representative(.)" Id. at 7.
The General Counsel contends that Interior's motion "is also
unacceptable as a procedural matter." Id. The General Counsel
claims that Interior has not complied with section 2422.17(e) of
the Authority's Rules and Regulations, which precludes a party
from raising in a related subsequent unfair labor practice
proceeding any issues raised or which could have been raised in a
previous representation proceeding.
Finally, the General Counsel claims that (1) Interior is
improperly attempting to raise a matter before the Authority that
is currently before an Administrative Law Judge, and (2) granting
Interior's motion could have a prejudicial effect on the
proceedings in the unfair labor practice cases. Further, the
General Counsel claims that Interior improperly attached
documents to the motion because some of the documents were
rejected by the Administrative Law Judge when Interior sought to
introduce them into evidence in the unfair labor practice
hearing.
3. Interior's Response to the General Counsel
Interior contends that the Regional Director has denied it
the opportunity to present relevant evidence in this case.
Interior claims that the record developed in the unfair labor
practice cases clearly supports Interior's position. Therefore,
Interior requests that the Authority wait until the
Administrative Law Judge issues his decision in the unfair labor
practice cases and exceptions are filed before considering its
motion for reconsideration.
Interior further claims that the information in the May 2,
1989, internal AFT memorandum and Carr's May 22, 1989, affidavit
were not previously available to it. Therefore, Interior claims
that the attachments to its motion constitute new evidence which
supports its assertion that the decisions of the Regional
Director and the Authority are incorrect.
In conclusion, Interior urges the Authority to remand the
case for an appropriate hearing.
E. Interior's Letter Transmitting Copies of Documents
Submitted to Regional Director
Interior submitted to the Authority a copy of its August 28,
1989, letter, with attachments, to the Regional Director of
Region VII. Interior also submitted to the Authority the two RA
petitions that it filed at that time. The attachments include
copies of material identical to that Interior submitted with its
"motion to reopen case based upon new evidence and to hold motion
for reconsideration in abeyance until receipt of decision of
administrative law judge."
F. Interior's Renewal of Its Request for a Stay and Remand
of Cases for a Hearing
1. Interior's Position
Interior contends that, based on all of the information
provided to the Authority in its numerous submissions, the
Authority should stay its decision in Bureau of Indian Affairs II
and remand the cases to the Regional Office in Denver (Region
VII), which now has jurisdiction over the geographic area
covering the Navajo and Albuquerque Area units, for a hearing.
2. NCBIAE/AFT's Opposition to Interior's Renewed Request for
a Stay
NCBIAE/AFT asserts that the Authority properly denied
Interior's application for review in Bureau of Indian Affairs II.
NCBIAE/AFT contends that the Authority should deny Interior's
requests for a stay and reconsideration and confirm its decision
in Bureau of Indian Affairs II. NCBIAE/AFT argues that Interior's
"subsequent flagrant unfair labor practices have made it
impossible for any fair election to be conducted." Opposition at
4. In conclusion, NCBIAE/AFT alleges that Interior has failed to
set forth any "extraordinary circumstances" which warrant
reconsideration of Bureau of Indian Affairs II.
V. Analysis--Interior's Motion for Reconsideration
A. Introduction
Section 2429.17 of the Authority's Rules and Regulations
permits a party to request reconsideration of a final decision or
order of the Authority when the party can establish
"extraordinary circumstances." A request for reconsideration of
an Authority decision which constitutes nothing more than
disagreement with that decision does not establish "extraordinary
circumstances" within the meaning of section 2429.17 of the
Regulations. See, for example, United States Department of
Defense, Department of the Army, United States Army Air Defense
Center and Fort Bliss, Fort Bliss, Texas, 31 FLRA 904 (1988).
For the following reasons we conclude that Interior has not
established "extraordinary circumstances" warranting
reconsideration of the Authority decision.
B. The Authority's Decision in Bureau of Indian Affairs II
Resolved All Critical Issues
Contrary to Interior's assertions, we conclude that the
Authority's decision in Bureau of Indian Affairs II resolved all
critical issues, including whether (1) AFT satisfied the
definition of "labor organization" in section 7103(a) (4)(D) of
the Statute even though AFT supports the right to strike; (2)
NCBIAE represents a majority of employees in the Navajo and
Albuquerque Area units; and (3) the procedures by which NCBIAE
changed its affiliation complied with the Montrose criteria.
The Regional Director specifically addressed these three
issues in his original and supplemental decisions. First, the
Regional Director found that Interior's argument that AFT did not
satisfy the statutory definition of "labor organization" was
irrelevant to the issue before him and that Interior had not
presented any evidence to indicate that AFT had either condoned
or encouraged NCBIAE to engage in a strike. Second, the Regional
Director rejected Interior's assertion that NCBIAE did not
represent a majority of unit employees, noting among other
things, that (1) NCBIAE had negotiated collective bargaining
agreements which were still in effect; (2) a substantial number
of employees were on dues withholding; and (3) NCBIAE had within
the year changed affiliation from NEA to AFT in an election in
which a substantial number of its members had participated.
Third, the Regional Director found that the Montrose procedures
were followed. The Regional Director rejected Interior's
assertion that NCBIAE failed to comply with the Montrose
procedures because NCBIAE did not hold a special meeting to
discuss the proposed change in affiliation. In his original
decisions, the Regional Director cited Federal Aviation
Administration, Aviation Standards National Field Office,
6-AC-50002 (1985) (FAA), where a regional director determined
that the Montrose procedures had been followed despite the lack
of a membership meeting because such a meeting would have been
impractical due to the geographic dispersion of union members.
The Authority also addressed these issues. In fact, the
Authority specifically noted Interior's arguments concerning
these three matters in Bureau of Indian Affairs II. 33 FLRA at
489-90. The Authority found, however, that Interior's application
for review of the Regional Director's Supplemental Decision and
Order expressed nothing more than "disagreement with the Regional
Director's findings and conclusions, which (were) based on record
evidence and have not been shown to be clearly
erroneous and to have prejudicially affected the rights of any
party." Id. at 491. The fact that the Authority did not state
separate conclusions as to each of Interior's arguments does not
mean that the Authority ignored the arguments and does not
constitute a basis for granting reconsideration of the
Authority's decision.
C. The Authority's Decision in Bureau of Indian Affairs II
Does Not Depart From Precedent
In Bureau of Indian Affairs II, the Authority concluded that
the Regional Director's Supplemental Decision and Order "was
based on clearly established Authority and private sector
precedent." 33 FLRA at 491. As is explained more fully below, we
find nothing in Interior's motion for reconsideration, or
subsequent filings, to warrant a different conclusion.
1. The Regional Director Properly Granted NCBIAE's AC
Petitions
The proper procedures for changing affiliation were
established under the Assistant Secretary of Labor for Labor -
Management Relations in Montrose and were adopted by the
Authority in Florida National Guard. Once a labor organization
has properly changed its affiliation, the procedure to amend its
certification to reflect the change is to file an Amendment to
Certification (AC) petition, which is intended to accommodate a
nominal or technical change of an activity or exclusive
representative. See Department of Defense, Office of Dependents
Education, 15 FLRA 493, 496 (1984).
The Regional Director found in both his original and
supplemental decisions that the certifications in Case Nos.
6-AC-70005 and 6-AC-70006 were issued to NCBIAE--not NEA--and
that NCBIAE's certifications as exclusive representative did not
cease when its affiliation with NEA ended. The Regional Director
found that (1) Interior considered NCBIAE to be the exclusive
representative of its employees; (2) NCBIAE representatives
negotiated and signed the parties' collective bargaining
agreements; and (3) the day-to-day functions of the exclusive
representative were carried out by NCBIAE. The Regional Director
concluded that because NCBIAE was the certified exclusive
representative, these cases involved only a change in affiliation
and not a change from one rival labor organization to another.
In Bureau of Indian Affairs II, the Authority found that the
record supported the Regional Director's finding that the
certifications in the Navajo and Albuquerque Area units were
issued to NCBIAE and not NEA. Although Interior continues to
argue that NCBIAE was a shell for NEA and that NCBIAE and NEA
were one and the same, Interior has not shown extraordinary
circumstances to justify reconsideration of the Authority's
conclusion that the Regional Director's findings are supported by
the record. We affirm, therefore, that the certifications in the
Navajo and Albuquerque Area units were issued to NCBIAE--not
NEA.
Because the certifications in the Navajo and Albuquerque
Area units were issued to NCBIAE, we agree with the Regional
Director that the AC petitions involve only a change in
affiliation. The question remains, however, whether NCBIAE
properly changed its affiliation from NEA to AFT.
As the Regional Director found, the procedures for changing
affiliation of an exclusive representative, established in
Montrose and adopted by the Authority in Florida National Guard,
require an exclusive representative which is proposing to change
affiliation to: (1) hold a special meeting of the members of the
organization, with adequate notice to all members, to discuss the
proposed change; (2) hold the meeting at a time and place
convenient to all members; (3) provide adequate time at the
special meeting for discussion of the proposed change; and (4)
take a secret ballot vote of the members of the organization,
with the ballot clearly stating the change proposed. Montrose, 4
A/SLMR 859, 860 (1974), review denied, 3 FLRC 259 (1975).
In this case, Interior contends that NCBIAE did not comply
with the Montrose standards because a special meeting for all
union members was not held. The Regional Director rejected this
contention, stating that:
(T)he procedures set forth in the (Montrose) decision were
followed in that members had more than sufficient advance notice
of the proposed change in affiliation; were advised of what
action would be taken and the reasons for such action; and had
adequate time for discussion with other members by phone, mail or
in person on the question of the proposed change in affiliation.
Finally, a third party neutral conducted the election with an
overwhelming majority of members voting for affiliation with AFT.
In view of the geographical dispersion of NCBIAE members, NCBIAE
effectively followed the procedures set forth by the
(Montrose) decision to the extent feasible.
Regional Director's Decision and Order (October 21, 1987) at
4.
In his Supplemental Decision and Order, the Regional
Director stated that his previous conclusion that NCBIAE had
complied with the Montrose procedures "remains unchanged."
Supplemental Decision and Order at 9. As noted above, the
Regional Director, in his original decisions, cited the decision
in FAA, a case in which an application for review of a regional
director's decision was not filed with the Authority. In FAA, the
regional director determined that the Montrose criteria had been
followed even though a special meeting had not been held because
a meeting was impractical due to the geographic dispersion of the
union's members.
In Bureau of Indian Affairs II, the Authority rejected
Interior's argument that the Montrose procedures were not
followed because NCBIAE did not hold a special meeting to discuss
the proposed change in affiliation. The Authority found that the
Regional Director's decision was based on "clearly established
Authority and private sector precedent." 33 FLRA at 491.
Interior has not established extraordinary circumstances
warranting reconsideration of that decision. Accordingly, we
reject Interior's claim that NCBIAE did not comply with Montrose
and we affirm the Regional Director's finding that NCBIAE's
failure to hold a special meeting in the circumstances of this
case did not affect the validity of the vote to change
affiliation from NEA to AFT.
Further, we find no merit in Interior's argument that the
procedures outlined in Montrose were not followed by NCBIAE
because only 100 employees out of 1100 employees in the
bargaining unit received ballots to vote on the change in
affiliation. Montrose requires only that "a vote by the members
of the incumbent labor organization on the question should be
taken by secret ballot, with the ballot clearly stating the
change proposed and the choices inherent therein." 4 A/SLMR at
860 (emphasis added).
We also note, as did the Regional Director, the Supreme
Court's decision in NLRB v. Financial Institution Employees of
America, Local 1182, 475 U.S. 192 (1986) (Financial Institution
Employees). In that case, the Court rejected an argument that all
unit employees should have been informed of a proposed
change in affiliation and should have been allowed to vote in an
affiliation election. The Court found that "the (National Labor
Relations) Board exceeded its statutory authority by requiring
that nonunion employees be allowed to vote in the union's
affiliation election. This violated the policy Congress
incorporated into the (National Labor Relations) Act against
outside interference in union decisionmaking." Id. at 204. The
Court stated the following about changes in affiliation:
Of course, as is the case with any organizational and
structural change, a new affiliation may substantially change a
certified union's relationship with the employees it represents.
These changed circumstances may in turn raise a 'question of
representation,' if it is unclear whether a majority of employees
continue to support the reorganized union. Thus, in these
situations, the affiliation implicates the employees' right to
select a bargaining representative, and to protect the employees'
interests, the situation may require that the Board exercise its
authority to conduct a representation election.
Id. at 202.
Interior does not argue--and we find no basis on which to
conclude--that the decision in Financial Institution Employees
should not apply to a change in affiliation of an exclusive
representative certified under the Statute. Interior maintains
only that the decision in Financial Institution Employees does
not support the Regional Director's decision in the instant cases
because, unlike the situation in Financial Institution Employees,
NCBIAE "simply doesn't represent a majority and the majority was
in question before the affiliation vote." Request for
Reconsideration at 7.
The Regional Director, however, rejected Interior's
assertion that NCBIAE does not represent a majority of unit
employees. In dismissing Interior's three RA petitions, the
Regional Director concluded that (1) "the evidence presented by
(Interior)" was "insufficient to support its claim that NCBIAE no
longer represents a majority of the employees" in the Navajo and
Albuquerque Area units; and (2) no "question concerning
representation exists with respect to the employees" in those
units. Supplemental Decision and Order at 10.
For reasons discussed more fully in the next part of this
decision, we conclude that Interior has presented no
extraordinary circumstances warranting reconsideration of the
Authority's decision in Bureau of Indian Affairs II that the
Regional Director's findings regarding the majority status of
NCBIAE were supported in the record. Accordingly, there was no
"question of representation" and, consistent with the Court's
decision in Financial Institution Employees, the "members only"
vote to change affiliation from NEA to AFT, as required by
Montrose, was proper. We note further that there is no dispute in
this case concerning the Regional Director's finding that there
is a substantial continuity between NCBIAE before and after the
change in affiliation.
Interior has shown no extraordinary circumstances to warrant
reconsideration of the Authority's decision in Bureau of Indian
Affairs II denying Interior's application for review of the
Regional Director's finding that NCBIAE properly complied with
applicable procedures in changing its affiliation from NEA to
AFT. Accordingly, we reaffirm that the Regional Director properly
granted NCBIAE's AC petitions in Case Nos. 6-AC-70005 and
6-AC-70006.
2. The Regional Director Properly Dismissed Interior's RA
Petitions
Section 2422.2(b) of the Authority's Rules and Regulations
requires that an agency's RA petition must contain a statement
that the agency has a good faith doubt, based on objective
considerations, that the currently recognized or certified labor
organization represents a majority of the employees in the
existing unit. Section 2422.2(b) also requires that the agency
attach to its RA petition a detailed explanation of the reasons
supporting its good faith doubt.
Interior questioned the continued majority status of NCBIAE
in its RA petitions in Case Nos. 6-RA-70001, 6-RA-70002 and
6-RA-80001 for the following reasons: (1) less than a majority of
eligible unit employees voted in the November 26, 1971, election
which resulted in the certification of NCBIAE; (2) NCBIAE ceased
to exist when NEA disaffiliated itself from NCBIAE; (3) NCBIAE
has affiliated with AFT, a labor organization which condones
strikes; (4) only 5 employees out of a bargaining unit of 200
employees in the Albuquerque Area bargaining unit are on dues
withholding; (5) only 77 members out of a membership of 100 voted
on the AFT affiliation issue; (6) there has been a 65 percent
turnover rate of employees since 1981, and (7) few grievances
have been filed and few consultations have been sought by NCBIAE
since 1981.
NCBIAE contended that because there were collective
bargaining agreements in effect for both the Albuquerque and
Navajo Area units, the RA petitions in Case Nos. 6-RA-70001 and
6-RA-70002 were untimely filed pursuant to section 2422.3(d)(1)
of the Authority's Rules and Regulations. Section 2422.3(d) of
the Regulations provides as follows:
(d) A petition for exclusive recognition or other election
petition will be considered timely when filed as follows:
(1) Not more than one hundred and five (105) days and not
less than sixty (60) days prior to the expiration date of an
agreement having a term of three (3) years or less from the date
it became effective.
(2) Not more than one hundred and five (105) days and not
less than sixty (60) days prior to the expiration of the initial
three (3) year period of an agreement having a term of more than
three (3) years from the date it became effective, and any time
after the expiration of the initial three (3) year period of such
an agreement; and
(3) Any time when unusual circumstances exist which
substantially affect the unit or the majority representation.
The Regional Director found that the collective bargaining
agreement covering the Albuquerque Area unit became effective on
August 28, 1984, and expired on August 28, 1987. The Regional
Director found further that the collective bargaining agreement
was automatically renewed for an additional year to expire on
August 28, 1988. The Regional Director found that under the time
limits prescribed by the Authority's Rules and Regulations, a
timely petition had to have been filed between May 16, 1987 and
June 30, 1987. The Regional Director concluded that as the
petition concerning the Albuquerque Area unit (Case No.
6-RA-70001) was filed on September 18, 1987, it was untimely.
The Regional Director found that the collective bargaining
agreement covering the Navajo Area unit became effective on
February 8, 1984, and expired on February 8, 1987. The Regional
Director found further that the collective bargaining agreement
was automatically renewed for an additional year to expire on
February 8, 1988. The Regional Director found that under the time
limits prescribed by the Authority's Rules and
Regulations, a timely petition would have to have been filed
between October 26, 1987 and December 10, 1987. The Regional
Director concluded that as the first petition concerning the
Navajo Area unit (Case No. 6-RA-70002) was filed on September 18,
1987, it was untimely.
The Regional Director found that Interior's second petition
concerning the Navajo Area unit (Case No. 6-RA-80001) was timely
filed. Although the Regional Director had determined that the
other two RA petitions were not timely filed, he considered all
three cases on the merits.
In determining that further proceedings were not warranted
with respect to Interior's three RA petitions, the Regional
Director relied on the Authority's decision in Department of the
Interior, National Park Service, Western Regional Office, San
Francisco, California, 15 FLRA 338 (1984) (National Park
Service). In National Park Service, the Authority found that the
following factors supported the activity's good faith doubt as to
the continued majority status of the union: (1) the union had not
negotiated a collective bargaining agreement for either unit
during the 13 years it had been the exclusive representative; (2)
only 5 out of 200 employees in both units were on dues
withholding; (3) negotiations had never taken place concerning
changes in conditions of employment; (4) no union stewards had
ever been designated to represent employees in either unit; and
(5) no grievances had been filed or processed in 13 years with
the exception of one filed shortly before the hearing on the
activity's RA petitions.
The Regional Director found that the evidence presented
during the course of the investigation concerning Interior's
three RA petitions revealed that: (1) NCBIAE had negotiated
collective bargaining agreements, which were then in effect, for
the units it represents; (2) a substantial number of employees
are on dues withholding; (3) grievances have been filed by NCBIAE
and NCBIAE has sought a number of consultations over conditions
of employment; (4) NCBIAE had within the last year changed
affiliation from NEA to AFT in an election in which a substantial
number of its members participated; and (5) there had been no
evidence of any reorganization or organizational changes by
Interior which would substantially affect the scope or character
of the bargaining unit. The Regional Director concluded that "the
evidence presented by (Interior)" was "insufficient to support
its claim the NCBIAE no longer represents a majority of
the employees" in the Navajo and Albuquerque Area units.
Supplemental Decision and Order at 10.
In Bureau of Indian Affairs II, the Authority found, among
other things, that although Interior disagreed with the Regional
Director's findings, Interior had not shown that any finding or
conclusion on any substantial factual issue was clearly
erroneous. In its request for reconsideration, Interior continues
to assert that NCBIAE does not represent a majority of the
employees in the Navajo and Albuquerque Area units.
An agency is required to submit with an RA petition "a
statement that (it) has a good faith doubt, based on objective
considerations, that the currently . . . certified labor
organization represents a majority of the employees in the
existing unit(.)" 5 C.F.R. 2422.2(b)(1). In addition, the agency
must attach to a petition "a detailed explanation of the reasons
supporting the good faith doubt." Id. The Regional Director
discussed the reasons asserted by Interior to support its good
faith doubt, including its assertions concerning the numbers of
employees who were on dues withholding and who participated in
the affiliation vote, and concluded that the evidence was
insufficient to demonstrate a good faith doubt as to the majority
status of NCBIAE. Interior's continued assertion that NCBIAE does
not represent a majority of employees in the Navajo and
Albuquerque Area units constitutes nothing more than disagreement
with the Regional Director's findings and the Authority's
conclusion that those findings were supported by the record.
Interior has not, therefore, shown extraordinary circumstances
warranting reconsideration of the Authority's decision.
Accordingly, we affirm the Authority's conclusion in Bureau of
Indian Affairs II that the Regional Director properly dismissed
Interior's RA petitions.
C. The Regional Director's Refusal to Hold a Hearing Did Not
Violate Interior's Rights
In Bureau of Indian Affairs II, the Authority held as
follows concerning this argument:
We recognize that a number of questions raised by NEA and
(Interior) may have been avoided if the Regional Director had
followed other factfinding procedures. A hearing may even have
been the preferable procedure. However, we find that the use of
an investigation was not clearly erroneous within the meaning of
section 2422.17(c) of the Authority's Rules and Regulations.
Although NEA and (Interior) may have expected or now prefer
a hearing to present their views, this preference does not
establish a compelling reason for granting their applications for
review.
Bureau of Indian Affairs II, 33 FLRA at 491 (citation
omitted).
In its motion for reconsideration, Interior reasserts that
the Regional Director should have conducted a hearing. Interior
maintains that:
(N)ot only did the Regional Director adopt the union's
version of the facts and manufactured his own evidence, the
denial of due process was further exacerbated by denying
management the opportunity to argue the facts or to present its
evidence at a hearing.
Motion for Reconsideration at 4.
In Bureau of Indian Affairs II, the Authority found that
although a "hearing may have . . . been the preferable
procedure(,)" the use of an investigation was not "clearly
erroneous(.)" 33 FLRA at 491. Nothing in Interior's motion for
reconsideration establishes extraordinary circumstances
warranting reconsideration of that conclusion.
In addition, Interior argues that the following issues
raised in its motion for reconsideration must be resolved through
a hearing: (1) whether AFT satisfies the statutory definition of
a "labor organization"; (2) whether the procedures by which
NCBIAE changed its affiliation complied with Montrose; and (3)
whether NCBIAE represents a majority of unit employees. As noted
above, however, the Regional Director specifically addressed all
of these issues in his decision, and Interior has not presented
extraordinary circumstances warranting reconsideration of the
Authority's denial of its application for review of that decision
in Bureau of Indian Affairs II. Consequently, we find no merit in
Interior's argument that these issues were not properly addressed
and that a hearing must be held.
D. Summary
For the foregoing reasons, we conclude that the Regional
Director properly granted NCBIAE's AC petitions in Case Nos.
6-AC-70005 and 6-AC-70006, and properly dismissed Interior's RA
petitions in 6-RA-70001, 6-RA-70002, and 6-RA-80001. We reject
Interior's assertions that (1) the Authority and the
Regional Director failed to resolve critical issues; (2) the
Authority's decision in Bureau of Indian Affairs II departed from
precedent; and (3) the Regional Director's failure to hold a
hearing violated Interior's rights.
Interior has not established extraordinary circumstances
warranting reconsideration of the Authority's decision in Bureau
of Indian Affairs II. Accordingly, Interior's motion for
reconsideration is denied.
VI. Interior's Other Motions Are Denied
A. Request to File a Supplemental Response to Motion For
Reconsideration
Interior's request to file a supplemental response to its
motion for reconsideration is based on information contained in
the records of two other RA petitions (6-RA-80002 and 6-RA-80003)
filed by Interior concerning the Navajo and Albuquerque Area
units.
Sections 2422.2 and 2422.5 of the Authority's Regulations
require arguments and contentions bearing on a representation
petition to be submitted to the Regional Director, not to the
Authority. The information Interior now seeks to provide was
submitted by OEA/NEA in connection with other RA petitions filed
by Interior. The information was not submitted to the Regional
Director in connection with the cases which are before us now and
will not, therefore, be considered.
Finally, as noted above in connection with our discussion of
Interior's Motion for Reconsideration, the Regional Director
considered the information attached to Interior's RA petitions
and concluded that there was insufficient evidence to support
Interior's asserted good faith doubt as to the continued majority
status of NCBIAE. That is, the Regional Director considered
Interior's own evidence. Interior has not, therefore, established
that "there has been a complete absence of due process." Motion
to File Supplemental Response at 2. We, therefore, deny
Interior's request to file a supplemental response to its motion
for reconsideration with the Authority.
B. Motion To Reopen Case Based Upon New Evidence
The "new" evidence submitted by Interior consists of
Department of Labor LM-3 forms which are required by law to
be filed by NCBIAE with the Department of Labor each year.
The LM-3 forms submitted by Interior were filed by NCBIAE between
1980 and 1988. Interior alleges that these forms indicate that,
since 1984, NCBIAE has not held an annual meeting as required by
NCBIAE's constitution.
The LM-3 forms filed between 1980 and 1987 were available to
Interior at the time the Regional Director was preparing his
original decisions or his supplemental decision. As noted above,
consistent with sections 2422.2 and 2422.5 of the Authority's
Regulations, if Interior had intended to have the LM-3 forms
filed between 1980 and 1987 considered as part of the record, it
should have submitted copies of them to the Regional Director
when he was investigating the petitions involved in this case.
The submission of these forms to us, therefore, does not warrant
reopening the case.
We also find that the one LM-3 form filed after the Regional
Director issued his supplemental decision does not warrant
reopening the case. This form contains exactly the same
information as the LM-3 forms filed in the earlier years.
Moreover, the LM-3 form filed in 1988 is relied on by Interior to
support the same claim for which it relies on the other LM-3
forms: that NCBIAE has not held an annual membership meeting as
required by NCBIAE's constitution. Because the LM-3 form which
was filed in 1988 contains no information which was not available
to Interior prior to the issuance of the Regional Director's
decision, we find that the form does not warrant reopening the
case.
Accordingly, we deny Interior's motion to reopen the case
based upon new evidence.
C. Motion to Reopen Case Based Upon New Evidence and to Hold
Motion for Reconsideration In Abeyance Until Receipt of Decision
by Administrative Law Judge
Interior filed the following attachments in support of its
motion: (1) an affidavit dated May 22, 1989, by Patrick Carr,
former president of NCBIAE/AFT, alleging undue interference by
AFT representatives with the operation of NCBIAE/AFT; (2) a
December 21, 1988, letter from Patrick Carr to Albert Shanker,
National President of AFT, alleging improper and unlawful
interference and manipulation by Elmer Jackson, the AFT field
representative assigned to assist NCBIAE/AFT; (3) a May 2, 1989,
letter from the National Secretary - Treasurer of AFT to Patrick
Carr and Ms. Fanny Bahe, President of NCBIAE/AFT, answering the
charges made by Carr in his December 21, 1988, letter;
and (4) an August 3, 1988, letter from NCBIAE/AFT's attorney to
Patrick Carr concerning the status of a Clarification of Unit
(CU) Petition filed on Carr's behalf. Interior claims that the
evidence contained in these documents establishes the
following:
In other words, Mr. Carr, through his orchestration of not
paying per capita dues to NEA (resulting in NEA disaffiliation)
and arranging AFT to conveniently 'fill the void' made a
unilateral decision of changing affiliation and deprived the
membership of deciding whether it would be affiliated with NEA or
AFT; a decision Mr. Carr wanted to avoid placing before the
membership. This has made a mockery out of the affiliation
process.
Interior's Motion at 4-5. Interior claims also that the
evidence contained in these documents establishes that (1) the
union was "'at death's door'" prior to the change in affiliation;
and (2) NCBIAE "was the 'shell' for NEA(.)" Id. at 5-6.
We reject Interior's claim. The issue before us is whether
NCBIAE complied with the requirements of Montrose in changing its
affiliation from NEA to AFT. Interior has not shown that, even if
the assertions in the documents attached to its motion are
accepted as true, the reasons for NCBIAE's disaffiliation from
NEA are relevant to the issues before us. Further, Interior's
continued assertions that (1) NCBIAE was not a viable labor
organization at the time of its affiliation with AFT, and (2) NEA
was, in fact, the recognized representative of unit employees,
constitute mere disagreement with the Regional Director's
findings to the contrary. As the Authority found in Bureau of
Indian Affairs II, and as reaffirmed herein, those findings are
supported in the record of this case.
In addition, Interior has established no reason to hold this
case in abeyance pending receipt of decisions in pending unfair
labor practice cases. It is uncontroverted in the record before
us that the administrative law judge responsible for the unfair
labor practice cases has placed those cases in abeyance pending
issuance of the Authority's decision in this case. It appears,
therefore, that Interior is seeking to postpone indefinitely a
decision in this matter. That is, granting Interior's motion
would delay indefinitely a final resolution of the issues decided
by the Authority in Bureau of Indian Affairs II.
In addition, although Interior offers no information in its
motion to establish the connection between the unfair labor
practice cases and this case, other than case numbers to identify
the unfair labor practice cases, the General Counsel states that
the subject unfair labor practices involve "Interior('s) . . .
and its local activities(') refusal to comply with the
Authority's decision" in Bureau of Indian Affairs II. General
Counsel's Response at 5-6. Resolution of the unfair labor
practice complaints depends on the Authority's decision in the
case now before us. It is reasonable, therefore, for resolution
of the unfair labor practice cases to await resolution of this
case. It would not be reasonable to hold the decision in this
case in abeyance pending decisions in the unfair labor practice
cases.
For the foregoing reasons, we find that the information
contained in the attachments to Interior's motion does not
warrant reopening the case. Further, we find no reason to hold
our decision in this case in abeyance pending decisions in the
unfair labor practice cases referenced in Interior's motion.
Accordingly, we deny Interior's motion.
D. Request for a Stay and Remand of Cases
In its request for a stay and remand of cases, Interior
merely reiterates previous arguments made before the Regional
Director and the Authority. In reiterating its arguments,
Interior relies on the "new" evidence it submitted to the
Authority in its earlier motions. As we found above, Interior has
not established, in its original request for reconsideration or
in its subsequent motions, "extraordinary circumstances"
warranting reconsideration of the Authority's decision in Bureau
of Indian Affairs II. Accordingly, we deny Interior's request for
a stay and remand of cases.
VII. Conclusion
For the foregoing reasons, we conclude that Interior has not
established "extraordinary circumstances" warranting
reconsideration of the Authority's decision in Bureau of Indian
Affairs II, and that Interior's other motions must be denied.
VIII. Order
Interior's motion for reconsideration; Interior's request to
file a supplemental response to its motion for
consideration; Interior's motion to reopen case based upon new
evidence; Interior's motion to reopen case based upon new
evidence and to hold motion for reconsideration in abeyance until
receipt of decision of administrative law judge; and Interior's
renewal of its request for a stay and a remand of the cases for a
hearing are denied