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44 FLRA No. 36

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOL

PANAMA REGION

(Activity)

and

EDUCATION ASSOCIATION OF PANAMA

OVERSEAS EDUCATION ASSOCIATION

NATIONAL EDUCATION ASSOCIATION

(Labor Organization/Petitioner)

and

PANAMA CANAL FEDERATION OF TEACHERS

LOCAL 29

AMERICAN FEDERATION OF TEACHERS

(Labor Organization/Intervenor)

6-RO-10005

DECISION AND ORDER ON APPLICATION FOR REVIEW

March 17, 1992

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 Panama Canal Federation of Teachers, Local 29 (PCFT) pursuant to section 2422.17(a) of the Authority's Rules and Regulations. The Education Association of Panama (EAP) filed an opposition to the application for review.

The Regional Director conducted an election in a unit of Activity employees in which PCFT was the certified exclusive representative. A majority of the valid votes counted was cast for PCFT. Timely objections to the election were filed by EAP.

In her Decision and Order on Objections to Election, the Acting Regional Director (ARD) set aside the election and directed that another be conducted on the ground that the Activity had improperly denied EAP access to certain Activity facilities and services. PCFT seeks review of the ARD's decision on this issue.⁽¹⁾

For the following reasons, we grant the application for review because we find that a substantial question of law and/or policy is raised because of an absence of Authority precedent on the issue involved in this case and, for reasons which differ in part from those of the ARD, we will set aside the election.

II. Background

On January 3, 1991, EAP filed a petition seeking an election in a unit of employees represented by PCFT.⁽²⁾ By letter to the Activity dated January 28, 1991, EAP asserted that it had achieved "equivalent status" with PCFT and, as a result, was entitled to "equivalent bulletin board space at each school and the right to use the internal mail system." Letter of January 28, 1991. EAP renewed its requests for access to the bulletin board space and internal mail system by letters dated February 1 and February 7, 1991. The Activity refused the requests and asserted, among other things, that granting EAP access to the disputed facilities and services at that time would constitute an unfair labor practice under section 7116(a)(3) of the Statute.⁽³⁾

By letter dated February 6, 1991, the Authority's Regional Office directed the Activity to post a notice of the petition. After examining a list of unit employees provided by the Activity and comparing EAP's showing of interest to that list, the Regional Office determined, on March 12, 1991, that the showing of interest was adequate and so notified the Activity. On that date, the Activity granted EAP's request for access to the requested facilities and services. Pursuant to the parties' agreement, a representation election was held on May 9, 1991. A majority of the valid votes counted was cast for PCFT. EAP then filed objections to the election.

III. Acting Regional Director's Decision

Before the ARD, EAP contended, as relevant here, that it achieved equivalent status with PCFT on January 3, 1991, the date on which it filed the representation petition. Accordingly, EAP argued that, as of that date, it should have been granted access to bulletin boards in various locations as well as the Activity's internal mail system.

The ARD agreed with EAP. Citing Department of Transportation, Federal Aviation Administration, Washington, D.C., 2 FLRA 360 (1979) (DOT) and United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253 (1982) (INS), reversed in part sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, 727 F.2d 481 (5th Cir. 1984), the ARD determined that "[a] labor organization acquires equivalent status when it has raised a question concerning representation by filing a representation petition or becoming an intervenor in such a pending representation petition." ARD Decision at 6. Citing United States Department of Defense, Department of the Army United States Army Air Defense Center and Fort Bliss, Fort Bliss, Texas, 29 FLRA 362 (1987) (Fort Bliss), the ARD further determined that "EAP acquired equivalent status when it filed the petition and was thereafter entitled under [s]ection 7116(a)(3) of the Statute to the same and customary and routine services and facilities that DoDDS had granted to the incumbent Union, PCFT." ARD Decision at 7. Based on these findings, the ARD sustained EAP's objection to the election and directed that the election be set aside and another be conducted.

IV. Application for Review

PCFT argues that the ARD's decision "raises a substantial question of law and policy due to its departure from Authority precedent." Application for Review at 11. PCFT maintains that "[u]ntil the FLRA Regional Director determines that there is an adequate showing of interest, there is no legitimate basis for granting equivalent status to a petitioning labor organization." Id. at 6. PCFT also maintains that the ARD incorrectly applied Fort Bliss. PCFT contends that, under Fort Bliss, a petitioning union "is not entitled to the exact same services and facilities which were negotiated by the incumbent . . . ." Id. at 9.

V. Opposition

EAP contends that the ARD concluded correctly that it achieved equivalent status with PCFT when it filed the representation petition on January 3, 1991.

VI. Analysis and Conclusions

Under section 2422.17(c) of the Authority's Rules and Regulations, the Authority may grant an application for review when, among other things, a substantial question of law or policy is raised by either the absence of, or a departure from, Authority precedent.

PCFT argues that its application for review should be granted because the ARD's decision departs from Authority precedent. We disagree and conclude, instead, that there is an absence of Authority precedent on the issue of when a petitioning union acquires equivalent status, within the meaning of section 7116(a)(3) of the Statute, so as to be entitled to be furnished customary and routine facilities and services. In this regard, we find misplaced the ARD's and EAP's reliance on DOT, INS and Fort Bliss to support the conclusion that a petitioning union acquires equivalent status on the date it files a representation petition. In DOT, the issue was whether the agency was required under section 19(a)(3) of Executive Order 11491, as amended, to provide certain facilities and services to a union that had not filed a representation petition and did not have equivalent status.⁽⁴⁾ DOT, 2 FLRA at 368-69. In INS, the issue concerned the nature of the facilities and services required to be furnished under section 7116(a)(3) of the Statute. INS, 9 FLRA at 300. Finally, Fort Bliss concerned the issue of whether an agency was required to furnish a labor organization which had equivalent status with an incumbent union with the exact same services and facilities that the incumbent obtained through collective bargaining. Fort Bliss, 29 FLRA at 365-66.

In none of these cases did the Authority address the issue of when a petitioning union acquires equivalent status. Accordingly, as no case in which such issue was addressed has been cited or is apparent to us, we conclude that there is an absence of Authority precedent on this issue and we grant PCFT's application for review.

We note that although section 7116(a)(3) of the Statute refers to "labor organizations having equivalent status[,]" and although the legislative history of the Statute contains an example of equivalent status,⁽⁵⁾ the Statute does not define that term. Consistent with the plain wording of section 7116(a)(3), our task is to determine when, for the purposes of that section, two or more unions have the same status under the Statute. In the case before us, one of those unions is an incumbent exclusive representative. Accordingly, the question is when, or how, a petitioning union acquires a status which is equivalent to that of an incumbent for the purposes of section 7116(a)(3) of the Statute.⁽⁶⁾

Section 7111 of the Statute sets forth the process by which unions are certified as exclusive representatives. As relevant here, under that section, a union seeking exclusive recognition must file with the Authority a petition alleging that 30 percent of the employees in an appropriate unit wish to be represented by the union. Section 7111(f) provides that exclusive recognition may not be accorded a union if, among other things, there is not credible evidence that at least 30 percent of the employees in the relevant unit wish to be represented by the union.

Section 7111(b) provides that the Authority shall investigate a representation petition and, if there is reasonable cause to believe that a question concerning representation exists, shall provide an opportunity for a hearing or supervise and conduct an election. In conducting such investigation, the appropriate Regional Director determines, among other things, the adequacy of a showing of interest. 5 C.F.R. § 2422.2.(f)(1). After the Regional Director determines that a petition establishes a prima facie showing of interest, the Regional Director so notifies the affected activity and requests the activity to post copies of a notice of petition in certain places and furnish the Regional Director a current list of employees included in or excluded from the unit described in the petition. 5 C.F.R. § 2422.4; Office of the General Counsel Representation Case Handling Manual, Section 205.051 (March 1983). A party may challenge the validity of a showing of interest and/or may intervene by filing its challenge or intervention with the Regional Director within 10 days after the posting. 5 C.F.R. § 2422.2(f)(2).

It is clear from the foregoing that certain statutory and regulatory requirements are applicable to representation petitions. It is clear also that such petitions must be investigated to determine whether the requirements have been satisfied. As such, we are not persuaded that the mere filing of a representation petition automatically confers on the filing party a status equivalent to that of an incumbent. Instead, we conclude that a petitioning union acquires equivalent status for the purposes of section 7116(a)(3) when an appropriate Regional Director determines, and notifies the parties, that the petition includes a prima facie showing of interest and merits further processing. Therefore, consistent with the Authority's Rules and Regulations, we conclude that a petitioning union acquires equivalent status with an incumbent at such time as the Regional Director determines, and notifies the appropriate parties, that a notice of the petition will be posted.

In our view, this approach protects the rights of all parties. It protects the rights of an incumbent union by assuring that a petitioning union will not have access to an agency's facilities and services for campaign purposes based on a facially invalid petition or showing of interest. We note that, consistent with section 205.025 of the General Counsel Case Handling Manual, "[a]ll authorization material must be checked completely in determining the existence of a prima facie showing of interest." (Emphasis in original). As such, this approach would not, as alleged by PCFT with respect to the principle applied by the ARD, "encourage labor organizations to file frivolous representation petitions without an adequate showing of interest in the hope of gaining equivalent status and organizing at the expense of incumbent labor organizations." Application for Review at 8. At the same time, this approach assures a petitioning union that it will be furnished with customary and routine facilities and services at the same time--when notices are posted--that unit employees are made aware of a petition and are, therefore, likely also to be aware of the relative status of a petitioner and an incumbent. Finally, this approach enables agencies and activities easily to determine whether a labor organization is entitled, on request, to be furnished facilities and services under section 7116(a)(3) of the Statute.

We note, in this regard, that we find no inconsistency between the principle we apply here and previous Authority decisions holding that an agency is required to maintain existing conditions of employment, to the maximum extent practicable, during the pendency of a question concerning representation. For example, INS, 9 FLRA at 255. Holding otherwise, in our view, would be inconsistent with the purposes and policies of the Statute and could sanction or encourage changes in conditions of employment in a manner that improperly could affect the results of an election. Our conclusion here that a petitioning union acquires equivalent status with an incumbent at such time as the appropriate Regional Director determines that the petition includes a prima facie showing of interest and directs the posting of a notice of the petition encourages compliance with the statutory and regulatory process and, as such, promotes the representation process.

In this case, the Regional Director determined that EAP's petition included a prima facie showing of interest and, by letter to the parties dated February 6, 1991, directed the posting of notices of the petition. Although the notices were actually posted on February 20, 1991, it is not clear precisely when the parties received the notification or otherwise were made aware by the Regional Office that EAP's petition was facially sufficient and the notices would be posted. We find it unnecessary to determine that date, however, because it is clear that the notification and the parties' receipt of it substantially preceded March 12, 1991, the date on which EAP was granted access to the disputed facilities and services.⁽⁷⁾ Therefore, in agreement with the ARD's conclusion but for reasons which differ from the ARD, we find that EAP's objection to the election has merit. Accordingly, we sustain the ARD's decision to set aside the election and direct that another election be conducted in accordance with the Authority's Rules and Regulations.

VII. Order

The application for review is granted. The election is set aside and the Regional Director is directed to conduct another election in accordance with the Authority's Rules and Regulations.

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

1. The ARD's findings on other issues are not in dispute and will not be addressed.

2. The unit for which PCFT was certified, and the unit in which the election was held, includes "[a]ll nonsupervisory, professional school-level personnel employed by the [Activity]." ARD Decision at 1 (emphasis added). The unit identified in EAP's representation petition included "[a]ll non[]supervisory professional personnel employed by the [Activity]." Attachment 4 to Application for Review. Subsequently, the unit identified in the petition "was clarified to coincide with the . . . unit represented by PCFT and did not include employees in above school-level positions . . . ." ARD Decision at 12.

3. Section 7116(a)(3) of the Statute provides that it is an unfair labor practice for an agency:

(3) to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status[.]

4. That provision was substantially similar to section 7116(a)(3) of the Statute.

5. In discussing the provision that was enacted as section 7116(a)(3), the House Committee on Post Office and Civil Service stated that it would be an unfair labor practice for an agency:

to sponsor, control, or otherwise assist any labor organization, except that the agency may furnish customary and routine services and facilities . . . on an impartial basis to organizations having equivalent status (e.g., providing equal bulletin board space to two labor organizations which will be on the ballot in an exclusive representation election)[.]

H.R. Rep. No. 1403, 95th Cong., 2d Sess. 49 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-7, at 695 (1979) (emphasis added).

6. We do not address the application of section 7116(a)(3) in situations where no incumbent is involved.

7. We do not address what result would obtain if only a brief period of time had elapsed between the dates on which EAP was entitled to, and was granted, access to the disputed facilities and services.

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