Defense Industrial Plant Equipment Center, Memphis, Tennessee and American Federation of Government Employees and National Federation of Federal Employees, Local 259 (Authority decision, March 30, 1989)

FLRA representation decision. The Authority grants review and remands the dues allotment certification petition for a fuller record and an appropriate unit determination. The proceeding remains open, so this order does not start a final judicial review period. Section 7123(a)(2) excludes appropriate unit orders under 5 U.S.C. § 7112 from the ordinary judicial review provision.

Plain-English summary

AFGE sought certification for dues allotment in a nationwide unit at the Defense Industrial Plant Equipment Center. A regional director dismissed the petition because it included headquarters employees in a smaller unit for which NFFE Local 259 already held dues allotment certification. The Authority held that the regional director should have applied the appropriate unit criteria in 5 U.S.C. § 7112. It granted both the agency's and AFGE's applications for review and sent the case back for a full factual record and a new determination under those criteria.

Decision snapshot

• Authority: Appropriate unit requirements under 5 U.S.C. § 7112 for dues allotment certification under § 7115(c).
• Outcome: Regional dismissal reopened; case remanded for further record development and decision.
• Key point: An existing smaller dues allotment unit did not by itself answer whether the proposed nationwide unit was appropriate.

Full text (FLRA public release)

[ v31 p1105 ]

31:1105(89)DA

The decision of the Authority follows:

31 FLRA NO. 89

31 FLRA 1105

30 MAR 1988
DEFENSE INDUSTRIAL PLANT
EQUIPMENT CENTER (DIPEC)
MEMPHIS, TENNESSEE

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO

Union/Petitioner

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 259

Union/Intervenor

Case No. 4-DA-70002

ORDER GRANTING APPLICATIONS FOR REVIEW AND REMANDING CASE

I. Statement of the Case

On February 4, 1988, the Defense Logistics Agency (DLA) filed a timely application for review on behalf of the Activity under section 2422.17(a) of the Authority's Rules and Regulations. On February 11, 1988, the Petitioner also filed a timely application for review. Both applications seek review of the Regional Director's Decision and Order dismissing a petition for certification for dues allotment. For the reasons discussed below, we grant the applications filed in this case and remand the case to the Regional Director.

II. Regional Director's Decision

The Petitioner requested that it be granted a certification for dues allotment in a nationwide unit of all nonsupervisory professional and nonprofessional employees of the Defense Industrial Plant Equipment center (DIPEC). The Regional Director concluded that the claimed unit was not appropriate "because it includes employees of the DIPEC Headquarters office who are currently in a unit for which National Federation of Federal Employees (the Intervenor) has been certified for allotment of dues." RD Decision at 3.

III. Applications for Review

A. DLA's Application

DLA contends that the Regional Director's decision raises the following substantial questions of law: (1) do the appropriate unit provisions of section 7112 apply to unit determinations for purposes of allotments to representatives under section 7115(c); (2) if the provisions do apply, did the Regional Director apply them consistent with Authority precedent; and (3) if the provisions do not apply or if there is an absence of precedent, were the criteria applied by the Regional Director consistent with the overall policies and objectives of the Statute?

DLA also contends that Regional Director's processing of this case raises a substantial question of policy because the processing was not in accordance with Authority precedent and resulted in prejudicial error. DLA claims that when the controversy and dispute arose concerning the appropriate unit question, the Regional Director did not provide an opportunity for the Activity to present evidence and to argue in support of its position that the claimed unit was appropriate.

DLA requests that the Authority remand the case to the Regional Director to develop a complete record as to whether the claimed unit is appropriate.

B. Petitioner's Application

Petitioner argues that the section 7112 criteria for determining an appropriate unit apply to unit determinations for certification for dues allotment under section 7115(c)(1). It requests that the case be remanded to the Regional Director and that a hearing be held to develop a complete record of the case.

IV. Analysis and Conclusion

We conclude that compelling reasons exist within the meaning of section 2422.17(c) for granting the applications for review filed in this case. The Regional Director's failure to apply the provisions of section 7112 in making the unit determination in this case was a departure from Authority precedent and raises a substantial question of law.

Appropriate unit determinations for the purposes of allotments to representatives must be consistent with the provisions of section 7112 of the Statute. Section 2421.14 of the Authority's Rules and Regulations defines an appropriate unit as "a grouping of employees found to be appropriate for purposes of exclusive recognition under 5 U.S.C. 7111, and for purposes of allotments to representatives under 5 U.S.C. 7115(c), and consistent with the provisions of 5 U.S.C. 7112."

The record in this case indicates that the Regional Director did not apply the provisions of section 7112 in determining that the claimed unit was not appropriate for the purposes of allotments to representatives under section 7115(c). Rather, the Regional Director determined that the unit was not appropriate because it included employees in the smaller Headquarters office unit for which the Intervenor has been certified for allotment of dues.

Accordingly, we remand this case to the Regional Director to develop a full and complete factual record and to apply the provisions of section 7112 in determining whether the claimed unit is appropriate for the purposes of allotments to representatives under section 7115(c).

ORDER

The applications for review of the Regional Director's Decision and Order on the petition for certification for dues allotment are granted, and the case is remanded to the Regional Director for appropriate action and determinations consistent with this decision.

Issued, Washington, D.C., March 30, 1989.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY