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55 FLRA No. 75
U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
(Agency)
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 2015
(Labor Organization/Petitioner)
and
SERVICE EMPLOYEES INTERNATIONAL UNION
LOCAL 557, AFL-CIO, CLC
(Labor Organization/Applicant)
WA-RP-70072
_____
DECISION AND ORDER ON REVIEW
May 17, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on an application for review of the Regional Director's (RD's) decision finding that an Agency reorganization had created a question concerning representation with respect to Job Corps Center (JCC) employees in two bargaining units. [n1] The Applicant, the Service Employees International Union, Local 557, did not participate in the proceedings before the RD, but is the incumbent exclusive representative of the employees in one of the two bargaining units affected by the RD's decision. No opposition to the application was filed.
For the following reasons, we grant review and conclude that the RD committed prejudicial procedural error. We remand the petition for further processing consistent with this decision.
II. Background and the RD's Decision
NFFE represents a unit of professional and non-professional employees of the Agency's Headquarters office located in Washington, DC. RD's Decision at 1-2.
The mission of the Agency is to "manage the National Park System and to cooperate with other Federal agencies, Indians, States and local governments, private citizens and organizations in the preservation and interpretation of our Nation's natural and cultural heritage." Id. at 4.
The Agency also operates three JCCs: The Great Onyx JCC, located in the Mammoth Cave National Park; the Oconaluftee JCC, located in Great Smokey Mountains National Park; and the Harpers Ferry JCC, which is considered part of the Agency's National Capital Region. Id. at 3. The mission of the Job Corps Program is to provide education, vocational training and job placement for disadvantaged youth. The Agency operates the JCCs under an Interagency Agreement with the Department of Labor (DoL), and DoL is the sole source of funding for the JCC program. Id. at 4.
Before October 1, 1994, the JCC Directors reported to the Superintendents of the individual parks in which the JCCs were located. Id. at 5. The employees of the Great Onyx JCC were not represented by a labor organization; the employees of the Harpers Ferry JCC were represented by the International Brotherhood of Painters and Allied Trades, Local 1997 (IBPAT); and the employees of the Oconaluftee JCC were represented by the Applicant. Id. at 3-4.
By letter dated July 25, 1994, the Agency announced the reorganization of the JCC program effective October 1. As a result of the reorganization, the JCC Directors now report to the Director of the Youth Programs Division, located in the Agency's Washington office. Id. at 4-5. The parks, however, continue to provide the JCCs with technical and administrative support, including personnel services. In addition, the JCC employees' job duties and first and second level supervision have not been affected by the reorganization. Id. at 5. [ v55 p467 ]
NFFE filed the petition at issue in this case, which essentially claimed that the JCC employees had accreted to its unit because of the reorganization, on May 12, 1997. The petition did not list either the Applicant or IBPAT in the portion of the petition entitled, "Labor Organization(s), Other Than Petitioner, Affected By the Petition."
On August 5, 1997, the RD sent a letter to the Applicant and IBPAT (the August 5 letter), notifying them of the petition; the requirements for intervening under section 2422.8(c) of the Authority's Regulations; [n2] and the date, time and location of the hearing. See RD's Decision at 4 n.7. The August 5 letter, which is in the record, was sent to the Applicant at the address that appears on the application and was specifically addressed to the individual who filed the application. Copies of the August 5 letter were also sent to NFFE and to the Agency. The Applicant did not respond to the August 5 letter and did not appear at the hearing on August 19, 1997. Id.; Hearing Transcript at 8.
The RD issued his Decision and Order on January 27, 1999, concluding that the employees from each of the JCCs constituted a separate appropriate unit and therefore could not be properly accreted to NFFE's unit. RD's Decision at 7. In addition, while acknowledging that this issue had not been raised previously, the RD found that the Agency's Washington office was not the successor employer of the JCC employees for purposes of collective bargaining with the labor organizations that represented the employees of the Harpers Ferry and Oconaluftee JCCs. Id. The RD noted that neither the Applicant nor IBPAT had "expressed any interest" in continuing as the exclusive representative of the JCC employees, despite being notified of the proceedings. Id. at 8. He therefore determined that "it would be inappropriate to find that a successor relationship exist[ed]" between the Washington office and those employees. Id.
Based on the above determination, the RD concluded that the 1994 reorganization had raised a question concerning the representation of the employees at the individual JCCs, and that an election was necessary to determine whether the employees in each unit wished to be represented for the purposes of exclusive recognition. Id.
III. Positions of the Parties
The Applicant claims it did not receive notice that the petition was being processed until after the RD's Decision was issued. The Applicant further asserts that it has continued to have members at the Oconaluftee JCC since 1974 and that it has represented employees there whenever it was called upon to do so. The Applicant requests that the RD's findings concerning its successorship rights as the representative of the Oconaluftee JCC employees be reversed and that the Oconaluftee JCC be required to bargain with it for a labor agreement for those employees, consistent with the finding that each JCC is an appropriate unit for bargaining.
Neither the Agency nor NFFE filed an opposition to the application. [n3]
IV. Analysis and Conclusions
We interpret the Applicant's statement that the RD did not furnish it with the August 5 letter or any other notice of the petition as a claim that the RD committed prejudicial procedural error, in violation of section 2422.31(c) of the Authority's Regulations. With respect to the claim that it received no notice of the proceeding, the record shows that the August 5 letter was mailed to the Applicant at its current correct address. Accordingly, the Applicant's claim that it was not given any notice of these proceedings is not supported by the record. [ v55 p468 ]
We find, however, that the scope of the notice provided by the RD constituted prejudicial procedural error, because the August 5 letter did not provide the Applicant and IBPAT with proper notice of their rights with respect to the successorship issue. As the RD noted, the successorship issue was not raised prior to the issuance of his decision. The Applicant's rights with respect to the successorship issue are different from its rights with respect to the accretion issue raised in NFFE's petition, since the Applicant is considered an incumbent union with full party status with respect to the successorship issue.
Section 2422.8(d) of the Authority's Regulations provides that incumbent exclusive representatives are automatically parties to representation proceedings affecting employees they represent, without regard to the requirements applicable to intervenors. [n4] The Applicant and IBPAT are the incumbent unions with respect to the units affected by the successorship issue that the RD raised sua sponte. [n5] The August 5 letter, however, did not make reference to the successorship issue, and only informed the Applicant and IBPAT of their rights as a potential intervenors under section 2422.8(c) of the Authority's Regulations, without mentioning their rights to party status under section 2422.8(d). As such, the August 5 letter did not accurately inform these unions of their rights with respect to participating in this proceeding as it had evolved through the addition of the successorship issue. As a result, the RD committed a procedural error that prejudiced the rights of the incumbent unions. Accordingly, a remand of the case is necessary.
On remand, the RD is directed to permit the Applicant and IBPAT to participate as parties unless they serve him with written disclaimers of interest. The RD is directed to permit them to address the following issues: Whether the existing bargaining units represented by the Applicant and IBPAT are appropriate, and if not, whether the Agency's Washington office is the successor employer of the JCC employees in each of the units for collective bargaining purposes.
V. Order
The application is granted. The decision is vacated except as described in note 1, and the case is remanded to the RD for further processing consistent with this decision.
Footnote # 1 for 55 FLRA No. 75
The RD also found that the JCC employees had not accreted to the National Federation of Federal Employees, Local 2015's (NFFE's) unit as a result of the reorganization, and that two employees encumbering positions in the Agency's Personnel Office should be included in NFFE's unit. These conclusions are not challenged in the application and have become final, pursuant to section 2422.31(e)(1) of the Authority's Regulations.
Footnote # 2 for 55 FLRA No. 75
Except for incumbent intervenors, a labor organization seeking to intervene shall submit a statement that it has complied with 5 U.S.C. 7111(e) and one of the following:
(1) A showing of interest of ten percent (10%) or more of the employees in the unit covered by a petition seeking an election, with an alphabetical list of the names of the employees constituting the showing of interest; or
(2) A current or recently expired collective bargaining agreement covering any of the employees in the unit affected by issues raised in the petition; or
(3) Evidence that it is or was, prior to a reorganization, the recognized or certified exclusive representative of any of the employees affected by issues raised in the petition.
Footnote # 3 for 55 FLRA No. 75
During the proceedings before the RD, the Agency took the position that the existing units, which included both park and JCC employees, remained appropriate despite the reorganization. Agency Post Hearing Brief at 11.
Footnote # 4 for 55 FLRA No. 75
An incumbent exclusive representative, without regard tothe requirements of paragraph (c) of this section, will be considered a party in any representationproceeding raising issues that affect employees theincumbent represents, unless it serves the RegionalDirector with a written disclaimer of any representationinterest in the claimed unit.
Footnote # 5 for 55 FLRA No. 75
The Authority has held that a union qualifies as an "incumbent" only when it is the exclusive representative of all of the employees in the unit sought by a petition, either in the unit covered by the petition or as part of a larger unit, only a portion of which is involved in the proceeding. Defense Commissary Agency, Defense Commissary Store, Fort Drum, New York and National Association of Government Employee, SEIU, AFL-CIO and American Federation of Government Employees, Local 400, AFL-CIO (Fort Drum), 50 FLRA 249, 253 (1995). Although Fort Drum was decided under the Authority's former regulations, the aspects of those regulations that led to this conclusion are retained in the current regulations.