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50 FLRA No. 4

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEFENSE COMMISSARY AGENCY

MARINE CORPS LOGISTICS BASE

BARSTOW, CALIFORNIA

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1482

AFL-CIO

(Petitioner/Labor Organization)

SF-RO-40071

_____

ORDER DENYING APPLICATION FOR REVIEW

November 7, 1994

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

I. Statement of the Case

This case is before the Authority on an application for review filed by the Petitioner (the Union) under section 2422.17(a) of the Authority's Rules and Regulations. The Petitioner seeks review of the Acting Regional Director's (ARD's) Decision and Order dismissing the petition in this case. No opposition to the Union's application for review was filed.

For the following reasons, we deny the application for review.

II. Background and ARD's Decision

The Union filed a petition seeking to represent a unit of commissary store employees at the Barstow Commissary. The Union had represented these employees as part of a larger unit of employees at the Marine Corps Logistics Center, Barstow, California. A collective bargaining agreement was negotiated covering, among others, the employees in the petitioned-for unit. After the Defense Commissary Agency (DeCA) was created, all military commissary stores, including the Barstow Commissary, were removed from the control of the various military departments and placed into DeCA. See generally National Federation of Federal Employees, Local 28 and Defense Commissary Agency, 47 FLRA 873, 874 (1993). DeCA and various labor organizations that represented commissary employees prior to the creation of DeCA entered into a memorandum of agreement that, in relevant part, authorized the continuation of dues withholding from employees transferred to DeCA.

In support of its petition, the Union submitted a dues withholding report, listing employees whose Union dues were being withheld by the Activity. Based upon the Union's estimate of employees in the petitioned-for unit, the ARD found that this submission constituted a valid 30 percent showing of interest. Thereafter, the Activity submitted a list of employees who it claimed were employed in the Barstow Commissary, the unit sought by the petition. The number of employees on this list was greater than that estimated by the Union. Accordingly, the ARD determined that the showing of interest was not sufficient and notified the Union that it had 3 days to augment its showing. Near the end of the third day, the Union submitted, by facsimile transmission, authorization petitions containing the requisite number of additional employee signatures. However, neither the signatures nor the petitions were dated.

The ARD found that the additional showing of interest did not comply with the requirements of section 2421.16 of the Authority's Rules and Regulations because the employees' signatures were not dated.⁽¹⁾ Consequently, the ARD determined that the authorization petitions could not be used to satisfy the 30 percent showing of interest required by section 7111(b)(1)(A) of the Federal Service Labor-Management Relations Statute (the Statute) and section 2422.2(a)(9) of the Authority's Rules and Regulations.⁽²⁾ Accordingly, as a valid showing of interest had not been made, the ARD dismissed the petition.

III. Application for Review

The Union did not state the specific grounds under which it is seeking review under section 2422.17(c) of the Authority's Rules and Regulations. However, it claims that: (1) it was not advised of the need to have the additional showing of interest dated; and (2) that the regional office had prejudged this case. As to the first claim, the Union asserts that its initial showing of interest, consisting of employee names from a dues withholding report, was accepted by the regional office despite the fact that it was not dated. The Union further states that when it was advised by the regional office that an additional showing of interest was needed, nothing was said with respect to dating the additional showing. Finally, the Union maintains that the regional office provided it an extremely limited period of time to cure the deficiency and refused a request for an extension of time to cure the deficiency.

As to its second claim, the Union contends that the real reason the ARD dismissed its petition and failed to grant it an extension of time to cure the deficiency in its additional showing of interest was because the regional office agreed with the Activity that an appropriate unit should include commissary employees at an additional facility.

IV. Analysis and Conclusions

We conclude that the Union has not established that compelling reasons exist for granting the application for review under section 2422.17(c) of the Authority's Rules and Regulations.

Specifically, the Union has not shown that the ARD erred in either rejecting the undated signatures on the authorization petitions or failing to notify the Union of the requirement that such signatures must be dated. Section 2421.16 of the Authority's Rules and Regulations expressly requires that authorization petitions submitted to establish a showing of interest must be signed by employees and dated. See note 2, above. The Authority has previously held that parties dealing with the Federal Government are charged with knowledge of, and are bound by, statutes and lawfully promulgated regulations. See, for example, American Federation of Government Employees, Local 3438 and U.S. Department of Health and Human Services, Social Security Administration, Decatur, Alabama, 49 FLRA 1145, 1148-49 (1994). Thus, the Union is charged with knowledge of, and is bound by, the requirement that signatures on authorization petitions must be dated. With regard to the Union's statement that the alphabetical listing that accompanied the dues withholding report submitted in support of its initial showing of interest was accepted despite the fact that it was undated, we note that section 2421.16 allows "current dues records" to be submitted to establish a showing of interest. Here, the dues withholding report was dated to reflect the pay period from which the dues were allotted.

Moreover, we find that the ARD did not err in notifying the Union of its insufficient showing of interest, allowing the Union 3 days to augment that showing, and denying the Union's request for an extension of time to cure the deficiency.⁽³⁾ See generally U.S. Department of the Navy, Naval Station, Ingleside, Texas, 46 FLRA 1011, 1021, n.3 (1992) (regional office followed standard operating procedure set forth in General Counsel's Representation Case Handling Manual). Finally, we find that the Union has not established, and it is not otherwise apparent to us, that the regional office prejudged this case in any manner.

Accordingly, as no compelling reasons exist under section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review, we deny the application. See U.S. Department of the Army, Army Ordnance Missile and Munitions Center and School, Redstone Arsenal, Alabama, 35 FLRA 987, 989 (1990).⁽⁴⁾

V. Order

The application for review of the Acting Regional Director's Decision and Order is denied.

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

1. Section 2421.16 of the Authority's Rules and Regulations provides, in pertinent part, that:

"Showing of interest" means evidence of membership in a labor organization; employees' signed and dated authorization cards or petitions authorizing a labor organization to represent them for purposes of exclusive recognition; allotment of dues forms executed by an employee and the labor organization's authorized official; current dues records; an existing or recently expired agreement; current exclusive recognition or certification; . . . or other evidence approved by the Authority. [Emphasis added.]

2. Section 7111(b)(1)(A) of the Statute and section 2422.2(a)(9) of the Regulations require that a petition for exclusive recognition be accompanied by a showing of interest of not less than 30 percent of the employees in the claimed unit.

3. The General Counsel's Representation Case Handling Manual, which was promulgated by the General Counsel to provide guidance to regional directors provides, in relevant part, as follows:

Section 205.036

Where the check of petitioner's evidence of interest against the payroll list reveals that the thirty percent (30%) requirement has not been met, the procedures set forth in Section 205.027 should be followed in giving notification of insufficiency.

Section 205.027

[T]he petitioner's representative should be advised regarding the extent of the insufficient showing of interest, the three (3) day due date [for submission of an additional showing of interest] . . . and that the petition will be dismissed absent timely submission. . . .

4. We note that nothing contained in the Statute or the Authority's Rules and Regulations prevents the Union from filing a new petition to represent the Barstow Commissary employees so long as the petition is supported by a current adequate showing of interest. In addition, we note that the Union has not asserted, as a basis for its showing of interest under section 2421.16 of the Authority's Rules and Regulations, either its status as the recognized exclusive representative of the Barstow Commissary employees or the existence of a negotiated agreement covering such employees prior to the creation of DeCA. Consequently, we do not address whether such evidence would satisfy the required showing of interest.

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