U.S. Department of State, Bureau of Consular Affairs, Passport Services and National Federation of Federal Employees, Local 1998 (Authority decision, May 30, 1990)

Final FLRA representation decision. The Authority denied the agency's application to review the regional director's dismissal of an election petition. The existing bargaining unit and union representation remain in place. This order concludes the representation proceeding before the Authority.

Plain-English summary

The State Department sought an election to test whether NFFE Local 1998 still represented a majority of a bargaining unit. A regional director dismissed the petition because it was filed outside the permitted window during an active agreement and found no unusual circumstances. The director also found insufficient evidence of doubt about the union's majority support. On review, the agency challenged only the evidence finding and left the timeliness ruling unchallenged. The Authority held that the uncontested timeliness ground was enough to sustain the dismissal and denied review without deciding the majority-support question.

Decision snapshot

• Authority: Former 5 C.F.R. §§ 2422.3(d)(1) and 2422.17(c).
• Outcome: Regional Director's dismissal affirmed; application for review denied.
• Key point: Challenging the evidence of majority support could not revive a petition dismissed on an unchallenged filing deadline.

Full text (FLRA public release)

[ v35 p1163 ]
35:1163(129)RA

The decision of the Authority follows:

35 FLRA No. 129

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF
STATE

BUREAU OF CONSULAR
AFFAIRS

PASSPORT SERVICES

(Agency/Petitioner)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES

LOCAL 1998

(Labor
Organization/Union)

3-RA-90001

ORDER DENYING APPLICATION FOR
REVIEW

May 30, 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 Agency under section 2422.17(a) of the Authority's Rules and Regulations. The Agency seeks review of the Regional Director's Decision and Order of February 27, 1990, dismissing the Agency's Representative Status (RA) petition which questioned the continued majority status of the Union. The Union filed an opposition to the application for review.

The Regional Director determined that the Agency's petition was untimely filed under section 2422.3(d)(1) of the Authority's Rules and Regulations.(*) The Regional Director also determined that even if the petition had been timely filed, there was insufficient evidence to support a good faith doubt by the Agency that the Union no longer represents a majority of the employees in the existing unit.

The Agency contends that compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting its application for review. The Agency seeks review only of that portion of the Regional Director's decision pertaining to his finding that the evidence was insufficient to support a good faith doubt by the Agency that the Union no longer represents a majority of the employees in the existing unit. The Agency does not challenge the Regional Director's determination that the Agency's petition was untimely filed under section 2422.3 of the Authority's Rules and Regulations.

For the reasons discussed below, we find that the Agency has not established any basis for review of the Regional Director's Decision and Order. Accordingly, we deny the application.

II. Background and Regional Director's
Decision

The Regional Director dismissed the Agency's petition. The Regional Director found that the petition was untimely filed because there was a negotiated agreement in effect covering the existing unit and the petition, which was seeking an election in the unit, was filed outside the "open period" provided for in section 2422.3(d)(1) of the Authority's Rules and Regulations. The Regional Director also found that there was no contention, and the evidence did not establish, that any unusual circumstances existed which substantially affected the unit or the majority representation under section 2422.3(d)(3) of the Authority's Rules and Regulations. Further, the Regional Director found that even if the petition had been timely filed, there was insufficient evidence to support a good faith doubt by the Agency that the Union no longer represents a majority of the employees in the existing unit.

III. Application for Review

The Agency argues that: (1) the Agency was prejudiced by the Hearing Officer's ruling allowing additional testimony by a Union witness; (2) the Regional Director's decision presents a substantial question of law because the decision imposes a higher evidentiary standard than existing precedent requires for establishing good faith doubt as to the majority status of an incumbent union; (3) the Regional Director's decision is based on erroneous factual findings which are prejudicial to the Agency's position; and (4) the Regional Director's reliance on decisions of the National Labor Relations Board is misplaced.

IV. Opposition to the Application

The Union requests that the application be denied because it does not address the timeliness of the petition. The Union contends that the Agency failed to address this issue in its application and failed to address the existence of any "'unusual circumstances' in accordance with [section] 2422.3(d) [of the Authority's Rules and Regulations], the only other grounds under which the Regional Director could have found the petition timely." Opposition at 1.

The Union also contends that even if the petition had been timely filed, the Agency failed to establish good faith doubt that the Union lacked majority support. The Union argues that the Regional Director properly applied Authority and private sector precedent. Finally, the Union contends that the "remainder of the [Agency's] application for review merely expresses disagreement with the Regional Director's interpretation of the findings based on the record." Id. at 2.

V. Analysis and Conclusion

We conclude, for the reasons stated below, that no compelling reasons exist within the meaning of section 2422.17 of the Authority's Rules and Regulations for granting the application for review.

The Agency asserted before the Regional Director that it had a good faith doubt that the Union continued to represent a majority of the employees in the unit and, therefore, by its petition sought an election in order that bargaining unit employees "could make known through an election their collective decision on whether or not they wanted to continue to be represented by [the Union]." Transcript at 10 and Decision at 2. The Regional Director found that the petition was untimely filed because there was a negotiated agreement in effect covering the existing unit and the petition was filed outside the open period under section 2422.3(d)(1) of the Authority's Regulations. The Regional Director also found that there was no contention, and the evidence failed to establish, that any unusual circumstances existed under section 2422.3(d)(3).

In its application for review, the Agency does not take issue with the Regional Director's determination that the petition was untimely filed under section 2422.3(d)(1) of the Authority's Rules and Regulations and that no unusual circumstances existed under section 2423.3(d)(3). The Agency takes issue only with the Regional Director's finding that the evidence was insufficient to support a good faith doubt by the Agency that the Union no longer represents a majority of the employees in the existing unit.

Inasmuch as the Regional Director found that the Agency's petition was untimely filed under section 2423.3, and inasmuch as the Agency has not presented any grounds to review the Regional Director's finding that the petition was untimely filed, we find that the application for review presents no basis warranting our review under section 2422.17(c) of the Authority's Rules and Regulations. In view of this determination, we find it unnecessary to reach the Agency's arguments pertaining to the Regional Director's finding concerning the Agency's good faith doubt regarding the continued majority status of the Union.

VI. Order

The application for review is denied.

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

*/
Section 2422.3(d)(1) of the Authority's
Regulations provides:

(d) A petition for exclusive recognition or other election petition will be considered timely

when filed as follows:

(1) Not more than one hundred and five (105) days and not less than sixty (60) days prior to the expiration date of an agreement having a term of three (3) years or less from the date it became effective.