34:0377(71)RO - NORTH CAROLINA ARMY NATIONAL GUARD RALEIGH, NORTH CAROLINA and ACT and NAGE LOCALS R5-98, R5-99, R5-105, R5-112 and R5-121 -- 1990 FLRAdec RO

  34 FLRA NO. 71
  
             

    

              NORTH CAROLINA ARMY NATIONAL GUARD
                    RALEIGH, NORTH CAROLINA
                          (Activity)

                              and

              ASSOCIATION OF CIVILIAN TECHNICIANS
                         (Petitioner)

                              and

         NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
        LOCALS R5-98, R5-99, R5-105, R5-112 and R5-121
                         (Intervenor)

                          4-R0-80020

	DECISION AND ORDER ON APPLICATION FOR REVIEW

    		      January 19, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This case is before the Authority on an application for
review filed by the Association of Civilian Technicians (ACT),
the petitioner, under section 2422.17(a) of the Authority's Rules
and Regulations. ACT seeks review of the Regional Director's
Decision and Order dismissing ACT's petition because it was not
supported by a sufficient showing of interest. The National
Association of Government Employees (NAGE), the intervenor, filed
an opposition to the application for review.

     Because there were two vacancies in the membership of the
Authority when the application for review was filed, Acting
Chairman McKee issued an interim order on February 13, 1989,
directing that consideration of the application be deferred until
further notice. The interim order preserved the parties'
rights under the Statute to Authority consideration of the
Regional Director's decision.

     We now consider ACT's application for review. We grant the
application because of the absence of Authority precedent. On
review of the Regional Director's decision we order the petition
dismissed.

II. Background

     On July 6, 1988, ACT filed its petition for certification of
representative. The petition stated that 510 employees were in
the unit for which certification was sought. 1 The petition was
accompanied by 158 signed authorization cards, 4 of which were
undated. On July 13, 1988, ACT submitted 38 additional signed and
dated cards. These 192 cards constituted more than 30  percent of
the 510 employees shown on the petition.

     The petitioned-for employees are currently in five separate
bargaining units represented by Locals R5-98, R5-99, R5-105,
R5-112 and R5-121 of NAGE. The Activity and NAGE are parties to a
collective bargaining agreement covering all five units, which
was effective on September 12, 1985, for a 3-year period.

     Within 7 days of receipt of the Regional Office's August 26,
1988 case-opening letter, the Activity submitted its list of
employees included in the petitioned-for unit. The list contained
705 names. Further investigation disclosed that six of the names
on the authorization cards received on July 6 and July 13 were
not on the Activity's list of unit employees. Thus, there were
186 valid authorization cards. During the first week in October,
the Regional Office informed ACT of the insufficiency of its
showing of interest based on a unit size of 705 employees. ACT
was provided with a copy of the Activity's list of employees and
did not disagree with the names on the list or the size of the
unit.

     On October 13, 1988, ACT filed an amended petition. This
amended petition stated that 705 employees were in the unit. The
petition was accompanied by 219 authorization cards. A
review of these 219 cards by the Regional Office revealed that 5
were undated and that another 5 names were not on the Activity's
list of employees in the unit. Of the remaining 209 cards, 175
were dated before July 14, 1988, and 34 were dated in September
and October 1988.

III. The Regional Director's Decision

     The Regional Director determined that ACT's petition was not
supported by a showing of interest of at least 30  percent of the
employees in the unit involved.

     The Regional Director correctly noted that because a
collective bargaining agreement covering the unit involved was
effective on September 12, 1985, for a 3-year period, the 45-day
open period for filing a timely petition under section
2422.3(d)(1) of the Authority's Rules and Regulations extended
from May 31 to July 14, 1988. The Regional Director also noted
that under section 2422.2(a)(9), a valid petition must be
supported by a 30  percent showing of interest. The Regional
Director ruled that in order to be valid under the Authority's
Rules and Regulations, the showing of interest must be: (1)
signed and dated before the expiration of the 45-day open period;
and (2) received by the Authority within the 45-day period.

     The Regional Director noted that: (1) ACT did not disagree
with the Activity's list of 705 unit employees; and (2) only 192
signed and dated authorization cards were received by the
Authority during the 45-day open period. The Regional Director
concluded that because only 192 valid cards were received during
the open period, ACT's showing of interest constituted less than
30  percent of the employees in the unit. 2

     The Regional Director stated, in addition, that the amended
petition filed on October 13 was not supported by a sufficient
showing of interest. She noted that the Regional Office had
received only 209 dated cards signed by employees whose
names were on the Activity's list of unit employees and that 34
of these cards were dated after the open period.

     Accordingly, the Regional Director dismissed the petition.

IV. Application for Review

     ACT contends that its application "raises substantial
questions of law and policy, and raises substantial factual
issues which were erroneously relied on to the Petitioner's
prejudice, warranting consideration of this Application."
Application at 5.

     ACT disputes the Regional Director's ruling that, under the
Authority's Rules and Regulations, a sufficient showing of
interest must be received by the Authority during the 45-day open
period. ACT claims that the Authority's Rules and Regulations do
not contain that requirement.

     ACT also argues that the Regional Office's delay in
processing its petition prejudiced its ability to obtain a proper
showing of interest within the open period. ACT maintains that it
believed, in good faith, that the size of the unit was as stated
in the petition. ACT claims that there was sufficient time for
the Regional Office to check the size of the unit with the
Activity. ACT states that, instead, the Regional Office waited
until August 26, 1988, to formally notify the Activity of the
pendency of the petition and to request a list of employees. The
Activity's list sent to the Regional Office on September 12,
1988, was dated August 17, 1988. ACT maintains that because of
the Regional Office's delay, it is unclear as to the date on
which employees listed by the Activity actually comprised the
unit. ACT asserts that because of these unusual circumstances,
its additional showing of interest should have been accepted,
especially where the Authority's Regulations do not support the
Regional Director's conclusion that receipt of the showing of
interest, as opposed to the petition itself, must occur within
the open period.

     ACT further argues that the Regional Director incorrectly
concluded that the amended petition filed on October 13 was not
supported by a sufficient showing of interest. ACT asserts that
it filed 220 cards with its amended petition and not 219 cards as
stated by the Regional Director. Act further contests the
Regional Director's accounting and questions why certain
individuals were not counted towards the showing of interest. ACT
also asserts that three individuals, for whom it
submitted authorization cards, should have been included on the
Activity's list of unit employees. ACT argues that the status of
these individuals should be determined at a hearing. By ACT's
accounting, it had a sufficient showing of interest.

     In its opposition to ACT's application for review, NAGE
contends that the Regional Director properly dismissed ACT's
petition on the ground that the petition was not supported by a
proper showing of interest during the open period. NAGE argues
that ACT should have known the size of the unit because the
information was readily available in the publication Union
Recognition in the Federal Government (Office of Personnel
Management, January 1987 edition), which lists the unit as having
695 employees.

V. Analysis and Conclusions

     We conclude that a compelling reason exists within the
meaning of section 2422.17(c) of our Rules and Regulations for
granting the application for review. ACT's application for review
raises a substantial question of law or policy because of the
absence of Authority precedent on when a sufficient showing of
interest must be received by the Regional Director. However, ACT
fails to show that the Regional Director's decision: (1) resulted
in prejudicial error; or (2) is clearly erroneous on a
substantial factual issue.

     A. Timeliness of the Showing of Interest

     The Regional Director found that in order to be valid under
our Rules and Regulations, a showing of interest must be: (1)
signed and dated before the expiration of the 45-day open period
for filing a petition under section 2422.3(d) (1); and (2)
received by the Authority within the 45-day period. Although the
General Counsel's Field Manual contains these requirements, this
is the first opportunity for the Authority to consider this
issue. Accordingly, we grant the application to do so.

     When there is a collective bargaining agreement having a
term of 3 years or less covering employees in the unit specified
in the petition, a petition for certification of representative
must be filed with the Authority not more than 105 days and not
less than 60 days prior to the expiration date of the agreement.
5 U.S.C. 7111(f) (3) (B). The time period specified in section
7111(f) (3) (B) of the Statute is referred to as the "open
period." A petition is filed with the Authority when it is "received by the appropriate Regional Director(.)" 5 C.F.R.
2422.2(e)(4). The petition must state that 30  percent of the
employees in the unit for which there is an exclusive
representative allege that the exclusive representative is no
longer the representative of the majority of the employees in the
unit. 5 U.S.C. 7111(b)(1)(B). The petition must be "accompanied
by a showing of interest of not less than thirty percent (30%) 
of the employees in the unit(.)" 5 C.F.R. 2422.2(a)(9).

     Consistent with these statutory and regulatory provisions, a
petition for certification of representative must be received by
the appropriate Regional Director during the open period. The
petition must be accompanied by an adequate showing of interest.
When authorization cards are submitted as evidence of a showing
of interest, the cards must be signed and dated. 5 C.F.R.
2421.16. It follows, therefore, that, as found by the Regional
Director in her Decision and Order, the showing of interest must
be signed and dated before the expiration of the open period
where, as in the instant case, the actual size and composition of
the unit is not in dispute. The purpose of the open period is to
allow a fixed period during which the existence of a contract
will not act as a bar to the filing of a petition for an election
in the unit covered by the contract. Thereafter, to enable the
parties to reach a new agreement free from challenge, the final
60 days of the existing contract is an "insulated period" during
which the existence of the contract bars petitions for election.
This prohibition extends to the seeking of a showing of interest
in support of any petition filed. The insulated period provides
the parties with a period just before the expiration of the
contract during which they can negotiate a new contract free from
any disruptive effects of an organizing drive at that time and
assures stability in their collective bargaining relationship.

     We also agree that the petitioner must submit with the
petition evidence of a prima facie showing of interest based on
the approximate number of employees in the unit claimed to be
appropriate.

     However, we disagree that, in order to be sufficient, a full
showing of interest must in all circumstances be actually
received by the Regional Director during the open period. In
circumstances such as those present in the instant case, where
the petitioner miscalculates the number of employees in the
claimed unit, the Regional Office must allow the petitioner a
reasonable period of time after notice of the deficiency to
submit any additional showing of  interest it may have in
its possession. For the reasons already stated, however, this
additional showing of interest must have been signed and dated
before the expiration of the open period. We find this approach
to be fair and equitable, and consistent with the statutory and
regulatory provisions noted above. Consequently, on review, we
reject the Regional Director's finding that the full showing of
interest must always be received by the Authority within the open
period.

     B. Regional Office Delay

     The Regional Office's delay in processing ACT's petition is
unexplained and we do not condone it. However, it is clear that
the delay did not prejudice ACT. ACT did not file its petition
with the Regional Office until July 6 and did not complete its
original submission of the showing of interest until July 13.
Thus, even had there been no delay in the processing of this
case, the Regional Office would not have known the actual size of
the unit or the insufficiency of the original showing of interest
until after July 14, the close of the open period. Moreover, ACT
did submit an additional showing of interest when the Regional
Office notified it of the deficiency. However, 34 of the cards
that were submitted as part of the additional showing of interest
were dated in September and October 1988. Consequently, those
cards could not be counted towards the showing of interest
because they were not signed and dated before the expiration of
the open period. Accordingly, the Regional Office's delay in
processing ACT's petition provides no basis for modifying the
Regional Director's Decision and Order dismissing the petition.

     C. Adequacy of Showing of Interest and Regional Director's
Determination

     A Regional Director's determination of the adequacy of the
showing of interest is administrative in nature and is not
subject to collateral attack at a unit or representation hearing.
5 C.F.R. 2422.2(f)(1). The requirement that a showing of interest
be made serves an administrative purpose in helping to avoid
unnecessary expenditure of time and funds where there is no
reasonable assurance that a genuine representation question
exists and prevents the parties from abusing the Authority's
processes. However, if a Regional Director dismisses a petition
based on an insufficient showing of interest, an application for
review may be filed with the Authority in accordance with
procedures set forth in section 2422.17. Id. In our view, the
Regional Director's decision on whether certain cards submitted
with ACT's amended petition were valid and should be
counted towards its showing of interest does not warrant
Authority review under section 2422.17(c) and provides no basis
for modifying the Regional Director's Decision and Order
dismissing the petition. ACT has not presented evidence which
establishes that the Regional Director's factual determination in
finding certain authorization cards invalid was clearly erroneous
and that such error prejudicially affected its rights. ACT is
merely disagreeing with the Regional Director's administrative
determination with regard to those cards in question.

     Consequently, even if ACT's amended petition were accepted
as timely filed and the 209 dated authorization cards signed by
employees whose names were on the Activity's unit employee list
were considered valid, we agree with the Regional Director that
the showing of interest was insufficient. With 705 being the
undisputed number of employees in the unit sought, 209
authorization cards falls short of the amount of cards needed to
meet the required 30  percent showing of interest.

     In summary, the absence of Authority precedent concerning
when an adequate showing of interest must be received by a
Regional Director provides no basis for modifying the Regional
Director's order dismissing ACT's petition on the grounds that
the petition was not supported by a sufficient showing of
interest. Further, ACT has failed to show that the Regional
Director's decision resulted in prejudicial error or was clearly
erroneous on a substantial factual issue. Therefore, we will
dismiss the petition.

VI. Order

     The petition in Case No. 4-RO-80020 is dismissed.

FOOTNOTES

     Footnote 1 Although ACT does not state where it obtained the
information that led it to assert that the unit had 510
employees, the   publication Union Recognition in the Federal
Government (Office of   Personnel Management, January 1987
edition) lists the unit as having   695 employees.

     Footnote 2 The correct number of valid cards submitted
during the   open period was 186. The Regional Director's
conclusion that there were   192 valid cards does not account for
her earlier determination that 6   of the 192 signed and dated
authorization cards received on July 6 and   July 13 were not on
the Activity's list of unit employees. However,   this error does
not affect the Regional Director's or the Authority's  
conclusion in this matter.