[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Notices]
[Pages 35211-35214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17163]
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FEDERAL LABOR RELATIONS AUTHORITY
Notice of Opportunity to Submit Amicus Curiae Briefs in
Representation Proceedings Pending Before the Federal Labor Relations
Authority
AGENCY: Federal Labor Relations Authority.
ACTION: Notice of the opportunity to file briefs as amici curiae in
proceedings before the Federal Labor Relations Authority raising issues
regarding: (1) the relationship between sections 7111(f)(1) and 7120 of
the Federal Service Labor-Management Relations Statute (5 U.S.C.
7111(f)(1) and 5 U.S.C. 7120); and (2) the criteria to be used by the
Authority in resolving representation cases under section 7111(f)(1) of
the Statute arising from an agency reorganization where both
successorship and accretion principles are claimed to apply.
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SUMMARY: The Federal Labor Relations Authority provides an opportunity
for all interested persons to file briefs as amici curiae on
significant issues arising in cases pending before the Authority. The
Authority is considering the cases pursuant to its responsibilities
under the Federal Service Labor-Management Relations Statute, 5 U.S.C.
7101-7135 (1994) (the Statute) and its regulations, set forth at 5 CFR
part 2422 (1995), revised by 5 CFR part 2422 (1996). The issues concern
how the Authority should: (1) determine whether a labor organization is
subject to corrupt influences or influences opposed to democratic
principles within the meaning of section 7111(f)(1) of the Statute; and
(2) resolve representation petitions arising from a reorganization
where both successorship and accretion principles are claimed to apply
to the same employees.
DATES: Briefs submitted in response to this notice will be considered
if filed by close of business on July 24, 1996.
[[Page 35212]]
Extensions of time will not be granted. The date of filing shall be
determined by the date of mailing, as indicated by the postmark date.
If no postmark date is evident on the mailing, it shall be presumed to
have been mailed 5 days prior to receipt. If filing is by personal
delivery, it shall be considered filed on the date it is received by
the Authority.
ADDRESSES: Mail or deliver briefs to James H. Adams, Acting Director,
Case Control Office, Federal Labor Relations Authority, 607 14th
Street, NW, Suite 415, Washington, D.C. 20424-0001.
FORMAT: All briefs regarding the relationship between sections
7111(f)(1) and 7120 of the Statute shall be captioned ``Division of
Military and Naval Affairs (New York National Guard), Latham, New York,
Case No. BN-RO-40060, Amicus Brief.'' All briefs regarding the criteria
to be used in resolving representation cases arising from a
reorganization where both successorship and accretion principles are
claimed to apply shall be captioned ``Department of Navy, Fleet and
Industrial Supply Center, Case Nos. WA-CU-50061, WA-CU-50062 and SF-CU-
50071, Amicus Brief.'' Briefs shall also contain separate, numbered
headings for each issue discussed. An original and four (4) copies of
each amicus brief must be submitted, with any enclosures, on 8\1/2\ x
11 inch paper. Briefs must include a signed and dated statement of
service that complies with the Authority's regulations showing service
of one copy of the brief on all counsel of record or other designated
representatives. 5 C.F.R. 2429.27(a) and (c). Copies of the Authority's
decisions granting applications for review in these cases and a list of
the designated representatives for each case may be obtained in the
Authority's Case Control Office at the address set forth below. Copies
will be forwarded (by mail or by facsimile) to any person who so
requests by contacting James H. Adams at the same address.
FOR FURTHER INFORMATION CONTACT: James H. Adams, Acting Director, Case
Control Office, Federal Labor Relations Authority, 607 14th Street,
NW., Suite 415, Washington, D.C. 20424-0001, Telephone: FTS or
Commercial (202) 482-6540.
SUPPLEMENTARY INFORMATION: A summary of Division of Military and Naval
Affairs (New York National Guard), Latham, New York, Case No. BN-RO-
40060, and Department of Navy, Fleet and Industrial Supply Center, Case
Nos. WA-CU-50061, WA-CU-50062 and SF-CU-50071, follows.
A. Division of Military and Naval Affairs (New York National Guard),
Latham, New York, Case No. BN-RO-40060
1. Background
On September 15, 1995, the Authority granted review of the Regional
Director's Decision and Order in the captioned case under the
Authority's regulations in effect at the time of the application for
review, 5 CFR 2422.17(c)(1) and (3) (1995), on the grounds that: (1) a
substantial question of law or policy is raised because of the absence
of Authority precedent; and (2) the conduct of the hearing held or any
ruling made in connection with the proceeding has resulted in
prejudicial error. The Authority has directed the parties to file
briefs addressing certain questions, as set forth below.
The petition in this case, which was filed by the National
Federation of Civilian Technicians (NFCT), seeks an election to decide
the exclusive representative in a unit of employees of the New York
National Guard. The Association of Civilian Technicians (ACT) currently
is the exclusive representative for the unit and is the Intervenor in
the case.
Following the filing of NFCT's petition, ACT filed a challenge
under section 7111(f)(1) of the Statute. It asserts that NFCT is
subject to ``corrupt influences or influences opposed to democratic
principles'' and asks that the petition be dismissed.
The Statute provides that exclusive recognition shall not be
accorded to a labor organization if the Authority determines that the
labor organization is subject to corrupt influences or influences
opposed to democratic principles. 5 U.S.C. Sec. 7111(f)(1).
Section 7120(a) of the Statute provides that an agency shall only
accord recognition to a labor organization that is free from corrupt
influences and influences opposed to basic democratic principles.
Section 7120(d) directs the Assistant Secretary of Labor for Labor-
Management Relations to prescribe regulations necessary to carry out
the purposes of section 7120, and further provides that complaints of
violations of this section shall be filed with the Assistant Secretary.
2. The Regional Director's Decision
The Regional Director advised the parties that ACT's challenge
raised issues concerning NFCT's compliance with internal union
standards of conduct imposed by section 7120 of the Statute and
concluded that because standards of conduct issues are committed to the
exclusive jurisdiction of the Assistant Secretary of Labor by section
7120 of the Statute, they were not appropriate for investigation or
adjudication in a representation proceeding before the Authority.
Because there had been no decision by the Assistant Secretary that NFCT
was subject to corrupt influences or influences opposed to democratic
principles, the regional director directed that an election be
conducted among the employees in the petitioned-for unit.
3. The Application for Review
ACT filed an application for review and for a stay of the Regional
Director's decision and order. It contends that section 7111(f)(1) of
the Statute requires the Authority to determine whether a labor
organization involved in a representation proceeding is subject to
corrupt influences or influences opposed to democratic principles. NFCT
filed a reply to ACT's application for review, and attached a letter
from a regional director of the U.S. Department of Labor. The letter
states that the Office of Labor-Management Standards of the Department
of Labor had considered ACT's argument that NFCT was subject to corrupt
influences and did not find that the officers of NFCT had violated
standards of conduct set forth in 5 U.S.C. 7120.
4. Questions on Which Briefs are Solicited
The Authority has directed the parties in this case to file briefs
addressing the following questions:
1. In making the required determination under section 7111(f) of
the Statute, should the Authority rely on the investigation conducted
by the Assistant Secretary pursuant to section 7120, or should the
Authority conduct its own investigation?
2. If the Authority relies on investigations conducted by the
Assistant Secretary:
a. What procedures should be used (e.g., should any pending
Authority proceedings be placed in abeyance pending the Assistant
Secretary's final action; should the Authority's regional director
examine the Assistant Secretary's findings in a hearing)?
b. How should the Authority proceed if no complaint has been filed
with the Assistant Secretary under section 7120(d)?
c. Should the Authority defer to the Assistant Secretary's findings
and conclusions? What standard of review should be applied in reviewing
such findings and conclusions?
3. If the Authority conducts its own investigation:
[[Page 35213]]
a. What procedures should be used (e.g., should the determination
be made in an adversarial or nonadversarial proceeding)?
b. What criteria should be applied to determine whether a labor
organization is subject to corrupt influences or influences opposed to
democratic principles?
4. Do the answers to these questions depend on whether, at the time
the section 7111(f)(1) issue is raised:
a. a petition has been filed seeking to represent a unit that has
no current exclusive representative;
b. a petition has been filed seeking to decertify an exclusive
representative; or
c. there is an exclusive representative and no representation
petitions are pending?
As these matters are likely to be of concern to agencies, labor
organizations, and other interested persons, the Authority finds it
appropriate to provide for the filing of amicus briefs addressing these
issues.
B. Department of Navy, Fleet and Industrial Supply Center, Case Nos.
WA-CU-50061, WA-CU-50062 and SF-CU-50071
On June 24, 1996, the Authority granted, in part, applications for
review of the Regional Director's Decision and Order in United States
Department of the Navy, Fleet and Industrial Supply Center, Norfolk,
Virginia, Case Nos. WA-CU-50061 and WA-CU-50062 (51 FLRA No. 114) (FISC
Norfolk) and the Regional Director's Decision and Order in Naval Supply
Center, Puget Sound, Case No. SF-CU-50071 (51 FLRA No. 115) (FISC Puget
Sound).
1. Case Nos. WA-CU-50061, 50062--FISC Norfolk
As a result of a reorganization, on March 1, 1993, the Department
of the Navy created the Fleet and Industrial Supply Centers in Norfolk,
Virginia (FISC Norfolk) and Puget Sound, Bremerton, Washington (FISC
Puget Sound). As originally constituted, FISC Norfolk consisted of a
headquarters operation at Norfolk, Virginia, the Cheatham Annex at
Williamsburg, Virginia, and two detachments at Newport, Rhode Island
and Colts Neck, New Jersey (the Leonardo Detachment). The approximately
520 General Schedule (GS) and 330 Wage Grade (WG) employees at Norfolk,
Virginia have been represented in separate bargaining units by the
American Federation of Government Employees, Local 53, AFL-CIO (AFGE
Local 53) and the International Association of Machinists and Aerospace
Workers, Local Lodge 97, AFL-CIO (IAM Local 97), respectively. The GS
and WG employees at Cheatham Annex have been represented by AFGE Local
53 and IAM Local 97, respectively, in separate units at Williamsburg.
Employees of the Newport and Leonardo Detachments have been
unrepresented.
In October and November 1994, FISC Norfolk established five
detachments under its Acquisitions Group and four detachments under its
Customer Operations Division, respectively. The FISC Norfolk Detachment
at Yorktown, Virginia (Yorktown Detachment) consists of approximately
26 GS and WG employees who were transferred from the Naval Weapons
Station, Yorktown, Virginia, where they were represented by the
National Association of Government Employees, Local R4-1, SEIU, AFL-CIO
(NAGE Local R4-1). The FISC Norfolk Detachment at Charleston, Goose
Creek, South Carolina (Charleston Detachment) consists of approximately
23 GS and WG employees who were transferred from the Naval Weapons
Station, Charleston, Goose Creek, where they were represented by the
American Federation of Government Employees, Local 2298, AFL-CIO (AFGE
Local 2298).
The petitions in Case Nos. WA-CU-50061 and WA-CU-50062 were filed
by FISC Norfolk and sought to clarify the GS and WG units represented
by AFGE Local 53 and IAM Local 97, respectively, by establishing that
all of the transferred employees, including those from the Yorktown and
the Charleston Detachments, had accreted to these units. Three other
petitions were filed wherein, as relevant here, NAGE Local R4-1 and
AFGE Local 2298 sought to retain representation of the unit employees
transferred to FISC Norfolk from the Yorktown and Charleston
Detachments, respectively.
2. Case No. SF-CU-50071--FISC Puget Sound
A bargaining unit of approximately 265 GS and WG employees at FISC
Puget Sound has been historically represented by the Bremerton Metal
Trades Council (BMTC). In October 1993 and October 1994, FISC Puget
Sound established two detachments. The FISC Puget Sound Detachment at
Everett, Washington (Everett Detachment) consists of 6 employees who
were transferred from the Naval Station Everett where they were
represented by the American Federation of Government Employees (AFGE).
The FISC Puget Sound Detachment at Concord, California (Concord
Detachment) consists of 21 employees who were transferred from the
Naval Weapons Station, Concord, where they were represented by the
American Federation of Government Employees, Local 1931, AFL-CIO (AFGE
Local 1931).
The petition in Case No. SF-CU-50071 was filed by FISC Puget Sound
and sought to clarify the GS/WG bargaining unit represented by BMTC by
establishing that all of the transferred employees in the Everett and
the Concord Detachments had accreted to the BMTC unit.
3. The Regional Directors' Decisions
In FISC Norfolk, the RD found that all the transferred employees,
including those located at the Yorktown and Charleston Detachments, had
accreted to the AFGE Local 53 and IAM Local 97 bargaining units and
granted the petitions for unit clarification. In FISC Puget Sound, the
RD found that the Everett Detachment employees had accreted into the
BMTC. The RD concluded that the Concord Detachment employees had not
accreted into the BMTC unit because FISC Puget Sound was a successor
employer.
4. The Applications for Review
In FISC Norfolk, NAGE Local R4-1 and AFGE Local 2298 filed
applications for review challenging the RD's use of accretion
principles in resolving the issues presented by their petitions. In
particular, AFGE Local 2298 maintains that the RD failed to apply
current Authority precedent for determining successorship, as set forth
in Naval Facilities Engineering Service Center, Port Hueneme,
California, 50 FLRA 363 (1995) (Port Hueneme). In FISC Puget Sound, the
Activity filed the application for review challenging the RD's decision
regarding the Concord Detachment as relying ``too heavily'' upon the
Port Hueneme successorship criteria. The Activity maintains that a
``literal application'' of Port Hueneme will lead to an increased
number of bargaining units and ``government inefficienc[y].''
5. Question on Which Briefs are Solicited
The Authority granted the applications for review in FISC, Norfolk
and FISC, Puget Sound under 5 CFR Sec. 2422.17(c)(1) on the ground that
there is an absence of, or the Regional Directors' decisions constitute
a departure from, Authority precedent on resolving representation cases
involving agency reorganizations where both successorship and accretion
principles are claimed to apply. The Authority has directed the parties
in the two cases to file briefs addressing the following question:
[[Page 35214]]
In a representation case arising from a reorganization where
both successorship and accretion principles are claimed to apply to
the same employees, how should the Authority resolve the
representation issues raised by the petitions?
As these matters are likely to be of concern to agencies, labor
organizations, and other interested persons, the Authority finds it
appropriate to provide for the filing of amicus briefs addressing these
issues.
Dated: July 1, 1996.
For the FLRA.
James H. Adams,
Acting Director, Case Control Office.
[FR Doc. 96-17163 Filed 7-3-96; 8:45 am]
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