Area Maintenance Support Activities, 86th Army Reserve Command, Forest Park, Illinois and American Federation of Government Employees, Local 4033 (Authority decision, August 17, 1988)

Final FLRA decision. The Authority denies the Army activity's application to review a regional director's dues allotment certification. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 4033 did not win a representation election for employees of an Army Reserve activity in Illinois, but it had separately sought certification for dues allotment. The regional director granted the allotment petition after finding that more than 10 percent of the unit were union members. The Army activity argued that the election loss defeated the allotment request. The Authority held that the unit had no exclusive representative, the unit was appropriate, and the membership showing met the separate allotment standard. It denied review of the regional director's decision.

Decision snapshot

• Authority: Dues allotment certification under 5 U.S.C. § 7115(c).
• Outcome: Application for review denied; allotment certification stands.
• Key point: Losing an exclusive-representation election did not invalidate the separate 10 percent membership showing.

Full text (FLRA public release)

[ v32 p822 ]
32:0822(122)DA

The decision of the Authority follows:

32 FLRA No. 122

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AREA MAINTENANCE SUPPORT ACTIVITIES

86TH ARMY RESERVE COMMAND

FOREST PARK, ILLINOIS

Activity

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 4033, AFL-CIO

Union

Case No. 5-DA-80001

ORDER DENYING APPLICATION FOR REVIEW

I. Statement of the Case

This case is before the Authority on an application for review filed by the Area Maintenance Support Activities, 86th Army Reserve Command, Forest Park, Illinois (Activity) under section 2422.17(a) of the Authority's Rules and Regulations. The application seeks review of the Regional Director's Decision and Order granting a petition for certification for dues allotment. The American Federation of Government Employees, Local 4033, AFL-CIO (AFGE) filed an untimely opposition to the application for review which has not been considered in this decision.

For the reasons discussed below, we find that compelling reasons do not exist for granting the application for review. We, therefore, deny the application.

II. Background and Regional Director's
Decision

On February 1, 1988, AFGE filed a petition for
Certification of Representative (RO) in Case No. 5-RO-80006 seeking to represent a unit of all employees of the Area Maintenance Support Activities in Illinois reporting to the 86th Army Reserve Command, Forest Park, Illinois. On March 17, 1988, at a consent meeting, the parties agreed to conduct a mail ballot election covering the petitioned-for unit. On March 28, 1988, AFGE filed a petition for Certification for Dues Allotment (DA) in accordance with section 2422.2(d) of the Authority's Rules and Regulations. The described unit of employees covered by the DA petition is identical to the unit described in the February 1, 1988 RO petition.

The balloting in the RO petition election began on April 7, 1988, and was completed on May 5, 1988. On May 16, 1988, a Certification of Results of Election was issued by the Regional Director certifying that a majority of the valid ballots had not been cast for any labor organization appearing on the ballot.

On May 17, 1988, the Regional Director granted the AFGE's DA petition finding that the petition was supported by a "showing that more than 10 percent of the employees in the described unit have membership in the petitioning labor organization." Decision and Order at 1.

III. Application for Review

The Activity contends that the election results on the representative petition constitute an extraordinary circumstance within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review of the Regional Director's decision. The Activity argues that since the majority of the employees in the proposed unit rejected the Union as the exclusive representative, dues allotment for the unit would likewise be rejected if brought to a vote of the proposed unit members. The Activity contends that the above "circumstance places the DA petition in jeopardy, thus negating it." Request for Review at 1.

IV. Analysis and Conclusion

After consideration and review of the Activity's application for review, we conclude that compelling reasons do not exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application. The Regional Director found the requirements for eligibility for dues allotment set forth in section 2422.2(d) of the Authority's Rules and Regulations were satisfied because AFGE submitted the required showing that not less than 10 percent of the employees in the unit involved were members of the AFGE. Accordingly, he granted the AFGE's DA petition.

Petitions for dues allotment are governed by section 7115(c) of the Statute and section 2422.2(d) of the Authority's Rules and Regulations. The three requirements established by the Statute and the Rules and Regulations for the granting of a DA petition are: (1) the petition must be for a unit in which there is no exclusive representative; (2) the claimed unit must be appropriate; and (3) the petitioner must provide a showing of membership of not less than 10 percent in the unit claimed to be appropriate.

As to the first requirement, the record before us indicates that there is no exclusive representative in the unit described in the AFGE's DA petition. The facts indicate that there was no exclusive representative on March 28, 1988, when the AFGE filed the DA petition. Further, because no labor organization received a majority of the valid ballots cast in the April 7, 1988, to May 5, 1988, RO election covering the identical unit described in the DA petition, there continues to be no exclusive representative in that unit.

The second requirement has also been met. The facts before us indicate that the unit described in the DA petition is appropriate. No claim was made in this case that the unit for which the 10 percent showing of membership was made was not an appropriate unit within the meaning of section 7115(c) of the Statute and section 2422.2(d) of the Authority's Rules and Regulations. Moreover, we note that the parties in this case agreed that the identical unit was an appropriate unit for the purpose of conducting a representation election in Case No. 5-RO-80006. Accordingly, the unit for which the dues withholding is sought is an appropriate unit. Compare, Defense Industrial Plant Equipment Center (DIPEC), Memphis, Tennessee, 31 FLRA 1105 (1988) where a Decision and Order on a petition for certification for dues allotment was remanded to the Regional Director because we found that the appropriateness of the unit was at issue and that in making his determination, the Regional Director did not apply the provisions of section 7112 of the Statute in determining whether the claimed unit was appropriate for the purpose of allotments to representatives under section 7115(c).

The facts also indicate that the third requirement for certification for dues allotment has been met because the AFGE provided the required showing of interest. The record indicates that the Regional Director investigated AFGE's showing of interest and determined that AFGE had "a showing that more than 10 percent of the employees of the described unit have membership in the petitioning labor organization." Decision and Order at 1. The Activity argues that the Union's DA petition has been placed in jeopardy because the Union was rejected as the exclusive representative. However, we find that the fact that the AFGE subsequently lost an RO election does not, in and of itself, invalidate the prior showing of interest for the purpose of a DA petition. The Activity offers no independent evidence to support a claim that the Union's 10 percent showing of interest is not still valid.

In conclusion, the Activity has not presented any arguments or precedent which would require the Authority to reach a conclusion different from the one reached by the Regional Director. Rather, the Activity merely disagrees with the conclusions of the Regional Director. Mere disagreement with the Regional Director does not form a basis for the granting of an application for review within the meaning of section 2422.17(c) of the Authority's Rules and Regulations. Further, the Regional Director's findings are based on evidence gathered during his investigation, the Statute and the Authority's Rules and Regulations; and have not been shown to be clearly erroneous or to have prejudicially affected the rights of any party. See, for example, U.S. Department of Labor and Operation and Maintenance Service, Inc. (Keystone Job Corps Center), 32 FLRA 622 (1988).

Accordingly, we deny the application for
review.

V. Order

The application for review of the Regional Director's Decision and Order on petition for certification for dues allotment is denied.

Issued, Washington, D.C.,

________
Jerry L. Calhoun, Chairman

Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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