[ v01 p804 ]
01:0804(90)RO
The decision of the Authority follows:
1 FLRA No. 90
DEPARTMENT OF THE AIR FORCE, HEADQUARTERS,
102ND FIGHTER INTERCEPTOR WING, MASSACHUSETTS
AIR NATIONAL GUARD, OTIS AIR FORCE BASE
Activity
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-191
Incumbent/Intervenor
and
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,
LOCAL F-196, WASHINGTON, D.C.
Petitioner
Assistant Secretary
Case No. 31-11654(RO)
DECISION AND ORDER
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ROBERT BAILEY.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11494, AS AMENDED, IN A
MATTER SUCH AS HERE, WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304
OF REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF
FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-196, WASHINGTON,
D.C., (PETITIONER), AND THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-191 (INCUMBENT), THE FEDERAL LABOR RELATIONS
AUTHORITY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER SEEKS AN ELECTION IN THE UNIT CONSISTING OF ALL
GENERAL SCHEDULE FIREFIGHTERS, CREW CHIEFS AND FIRE INSPECTORS EMPLOYED
BY THE OTIS AIR FORCE BASE, EXCLUDING SUPERVISORS, PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, GUARDS AND EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY. THE INCUMBENT
IS THE CURRENT EXCLUSIVE REPRESENTATIVE AND HAS A COLLECTIVE BARGAINING
AGREEMENT WITH THE ACTIVITY FOR THE UNIT SOUGHT BY THE PETITIONER.
WHEREAS THE PETITIONER ARGUES THAT THE INCUMBENT, FOR ALL INTENTS AND
PURPOSES, IS DEFUNCT AND THE PETITION HEREIN SHOULD BE PROCESSED, THE
INCUMBENT CONTENDS THAT IT IS NOT DEFUNCT, AND THE PETITION SHOULD BE
DISMISSED AS BEING UNTIMELY FILED DURING THE CERTIFICATION BAR PERIOD.
THE INCUMBENT WAS RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE OF THE
EMPLOYEES OF THE FIRE DEPARTMENT OF THE ACTIVITY IN 1969 AND A
COLLECTIVE BARGAINING AGREEMENT WAS SIGNED BY THE PARTIES ON MAY 17,
1973, TO RUN FOR THREE YEARS. ON MARCH 11, 1976, THE PETITIONER FILED A
TIMELY REPRESENTATION PETITION FOR THE SUBJECT BARGAINING UNIT WHICH
RESULTED IN AN ELECTION AND CERTIFICATION OF THE INCUMBENT ON JUNE 10,
1977, AS THE EXCLUSIVE REPRESENTATIVE OF THE SUBJECT BARGAINING UNIT.
SUBSEQUENT THERETO, A FULL SLATE OF OFFICERS WAS ELECTED BY THE
INCUMBENT WHICH MET IN THE FALL OF 1977, WITH JACK MCCARTHY, NATIONAL
REPRESENTATIVE IN PREPARATION FOR BARGAINING WITH THE ACTIVITY. AT THAT
TIME, CERTAIN INTERNAL PROBLEMS AROSE WITHIN THE INCUMBENT LABOR
ORGANIZATION WHICH RESULTED IN THE RESIGNATION OF THE PRESIDENT OF THE
INCUMBENT IN NOVEMBER 1977, AND THE APPOINTMENT OF THE VICE PRESIDENT AS
ACTING PRESIDENT. CONTRACT NEGOTIATIONS BETWEEN THE PARTIES COMMENCED
ON FEBRUARY 23, 1978, WITH MCCARTHY AND THE ACTING PRESIDENT
REPRESENTING THE INCUMBENT. HOWEVER, ON THE FOLLOWING DAY THE ACTING
PRESIDENT INFORMED THE ACTIVITY'S CIVILIAN PERSONNEL OFFICER THAT THE
INCUMBENT WISHED TO POSTPONE FURTHER NEGOTIATIONS BECAUSE OF INTERNAL
UNION PROBLEMS, AND BECAUSE THE EMPLOYEES WERE CONTEMPLATING ELECTING
ANOTHER UNION TO REPRESENT THE UNIT. ON MARCH 1, 1978, THE ACTING
PRESIDENT INFORMED THE NATIONAL OFFICE OF THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, (NAGE) THAT THE 24 EMPLOYEES HAD TERMINATED THEIR
UNION DUES WITHHOLDING AS OF THE FIRST PAY PERIOD IN MARCH, AND THAT THE
EMPLOYEES WERE SEEKING A NEW REPRESENTATIVE. /1/ THEREAFTER, ON MARCH
6, 1978, THE INCUMBETNT'S BANK ACCOUNT WAS CLOSED AND THE MONEY
DISBURSED EQUALLY TO THE MEMBERS.
BY SEPARATE LETTERS DATED MARCH 9, 1978, NAGE INFORMED THE ACTING
PRESIDENT THAT THE INCUMBENT WAS BEING PLACED UNDER THE TRUSTEESHIP OF
MCCARTHY, AND FURTHER INFORMED THE ACTIVITY OF THE TRUSTEESHIP AND THAT
THE OFFICERS HAD BEEN SUSPENDED FROM THEIR LOCAL OFFICES. THE FOLLOWING
DAY BY LETTER, NAGE INFORMED THE ACTING PRESIDENT THAT HE HAD BEEN
SUSPENDED FROM OFFICE. NEVERTHELESS, AT THE END OF MARCH 1978, THE
ACTING PRESIDENT SENT THE ACTIVITY A LETTER STATING THAT THE INCUMBENT
HAD NO MEMBERS, DID NOT COLLECT DUES, AND HAD CEASED TO FUNCTION, AND
THAT THE INCUMBENT WAS DEFUNCT AND HAD NO DESIRE TO REPRESENT THE UNIT
OF FIREFIGHTERS.
DESPITE ALL THAT WAS TAKING PLACE, TRUSTEE MCCARTHY AND THE ACTIVITY
CONTINUED TO NEGOTIATE, AND, ON APRIL 7, 1978, A COLLECTIVE BARGAINING
AGREEMENT WAS SIGNED BY MCCARTHY AND THE ACTIVITY. SINCE THAT TIME, THE
INCUMBENT HAS BEEN ADMINISTERED BY TRUSTEE MCCARTHY AND A NATIONAL
REPRESENTATIVE, AND THEY HAVE REPEATED ON NUMEROUS OCCASIONS THEIR
ABILITY AND WILLINGNESS TO REPRESENT THE BARGAINING UNIT AND ADMINISTER
THE COLLECTIVE BARGAINING AGREEMENT.
BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT THE INCUMBENT WAS
NOT "DEFUNCT" AT THE TIME THE SUBJECT PETITION WAS FILED. AN EXCLUSIVE
REPRESENTATIVE IS DEFUNCT IF IT IS UNABLE OR UNWILLING TO REPRESENT THE
EMPLOYEES, AND MERE TEMPORARY INABILITY TO FUNCTION DOES NOT CONSTITUTE
DEFUNCTNESS; NOR IS THE LOSS OF ALL MEMBERS THE EQUIVALENT OF
DEFUNCTNESS IF THE REPRESENTATIVE OTHERWISE CONTINUES IN EXISTENCE AND
IS WILLING AND ABLE TO REPRESENT THE EMPLOYEES. /2/ IN THIS REGARD, THE
EVIDENCE DOES NOT ESTABLISH THAT AT ANY TIME MATERIAL HEREIN, THE
INCUMBENT WAS UNWILLING OR UNABLE TO REPRESENT THE UNIT EMPLOYEES.
THUS, THE RECORD REVEALS THE EXISTENCE OF A NEW COLLECTIVE BARGAINING
AGREEMENT WHICH HAD BEEN DULY NEGOTIATED BY THE INCUMBENT AND THE
ACTIVITY, AND THAT THE INCUMBENT IS CURRENTLY BEING ADMINISTERED BY AN
APPOINTED TRUSTEE AND A NATIONAL REPRESENTATIVE, WHO HAVE ASSERTED ON
NUMEROUS OCCASIONS THEIR ABILITY AND WILLINGNESS TO REPRESENT THE
BARGAINING UNIT AND ADMINISTER THE COLLECTIVE BARGAINING AGREEMENT.
MOREOVER, IT HAS BEEN HELD THAT A DEVICE SUCH AS THAT INVOLVED IN THE
INSTANT CASE, WHICH WOULD PERMIT UNIT EMPLOYEE MEMBERS OF AN INCUMBENT
LABOR ORGANIZATION TO FACILITATE "A RAID" BY ANOTHER LABOR ORGANIZATION
LESS THAN 12 MONTHS AFTER THE INCUMBENT HAD BEEN CERTIFIED WOULD CREATE
UNNECESSARY INSTABILITY AND UNCERTAINTY AND WOULD, THEREFORE, BE
INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER WHERE THE
EVIDENCE DOES NOT ESTABLISH THAT THE INCUMBENT LABOR ORGANIZATION IS, IN
FACT, DEFUNCT. /3/
UNDER THE ABOVE CIRCUMSTANCES, AND NOTING THAT THE PETITIONER'S
PETITION WAS FILED WITHIN 12 MONTHS OF THE INCUMBENT'S CERTIFICATION AS
THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN THE BARGAINING UNIT
SOUGHT HEREIN, THE AUTHORITY FINDS THAT THE SUBJECT PETITION WAS
UNTIMELY FILED UNDER THE PROVISIONS OF 202.3(B) OF THE ASSISTANT
SECRETARY'S REGULATIONS, /4/ AND, ACCORDINGLY, THE PETITION WILL BE
DISMISSED. /5/
ORDER
IT IS HEREBY ORDERED THAT THE PETITION IN ASSISTANT SECRETARY CASE
NO. 31-11654(RO) BE, AND HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 31, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ EARLIER, ON FEBRUARY 24, 1978, A DOCUMENT ENTITLED "RESIGNATION
FROM NAGE, LOCAL R1-191" WAS SIGNED BY 24 OF 25 UNIT MEMBERS.
/2/ SEE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, 2 A/SLMR 340, A/SLMR 173(1974).
/3/ DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, PUBLIC HEALTH
SERVICE INDIAN HOSPITAL, CLAREMORE, OKLAHOMA, 5 A/SLMR 640, A/SLMR
568(1975).
/4/ SECTION 202.3(B) OF THE ASSISTANT SECRETARY'S REGULATIONS
PROVIDES: "WHEN THERE IS A CERTIFIED EXCLUSIVE REPRESENTATIVE OF THE
EMPLOYEES, A PETITION WILL NOT BE CONSIDERED TIMELY IF FILED WITHIN
TWELVE (12) MONTHS AFTER THE CERTIFICATION AS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT . . ."
/5/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE ORDER.