Navy Resale and Services Support Office, Field Support Office San Diego, National Association of Government Employees, Local R12-38, and National Federation of Federal Employees, Local 63 (Authority decision, April 15, 1987)

Final FLRA decision. The Authority denies NAGE Local R12-38’s application to review dismissal of its representation petition as untimely. 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

NAGE Local R12-38 challenged a Regional Director’s finding that its petition to represent employees at a San Diego Navy field support office was untimely. The Authority explained that the governing rule preserved a 90 day period for an activity and incumbent union to negotiate after a rival election petition was withdrawn. It found that NAGE had shown no error or other compelling reason to review the Regional Director’s application of the rule. The Authority denied review, leaving the dismissal of NAGE’s petition in place.

Decision snapshot

• Authority: Petition timing under 5 C.F.R. § 2422.3(e) and review under § 2422.17.
• Outcome: Application for review denied; representation petition remains dismissed as untimely.
• Key point: The rival union did not show that the Regional Director misapplied the 90 day protected bargaining period.

Full text (FLRA public release)

[ v26 p580 ]

26:0580(69)RO

The decision of the Authority follows:

26 FLRA No. 69

NAVY RESALE AND SERVICES SUPPORT
OFFICE, FIELD SUPPORT OFFICE
SAN DIEGO, CALIFORNIA
Acitivity

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-38, SEIU/AFL-CIO
Petitioner

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 63
Incumbent Labor Organization

Case No. 8-RO-60010

ORDER DENYING APPLICATION FOR REVIEW

On February 20, 1987, the National Association of Government Employees, Local R12-38, SEIU/AFL-CIO (NAGE) filed a timely application for review pursuant to section 2422.17(a) of the Authority's Rules and Regulations, seeking to set aside the Regional Director's Decision and Order on Petition for Certification of Unit in the above-named case. In its application for review, NAGE contends that compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Regulations for granting the application.

The Regional Director concluded that the representation petition filed by NAGE was untimely under section 2422.3(e) of the Authority's Regulations. In its application, NAGE contends that the Regional Director's decision raises a substantial question of law and policy regarding the interpretation and application of section 2422.3(e), due to the absence of Authority precedent.

Section 2422.3(e) of our Regulations is the same in all material respects as section 202.3(d) of the Assistant Secretary's Regulations applicable under Executive Order 11491, as amended. 29 C.F.R. Section 202.3(d) (1977). The Assistant Secretary explained the underlying purpose of that language in Department of the Navy, Great Lakes Naval Base, Public Works Center, Great Lakes, Illinois, 7 A/SLMR 1003 (1977). He concluded that the regulation was promulgated to address the situation where, because of the filing of a petition for an election and its subsequent withdrawal by a rival union, the activity and the incumbent union are deprived of the full "insulated" period within which to negotiate a new agreement. The regulation therefore provided for a 90-day period free from rival claim for the activity and the incumbent to consummate a new agreement. Under section 7135(b) of the Statute, that decision remains in full force and effect. See Florida National Guard, St. Augustine, Florida, 25 FLRA No. 60 (1987) (in which the Authority noted in a similar situation that the Assistant Secretary's decision remains in full force and effect unless revised or superseded by decisions issued pursuant to the Statute). Therefore, we conclude that section 2422.3(e) of our Regulations reflects that same purpose.

Upon consideration of NAGE's application for review, we conclude that no compelling reason exists for granting the application. Rather, NAGE in essence simply expresses disagreement with the Regional Director's application of our Regulations. The Regional Director's application has not been shown to be in error, a departure from precedent or to have prejudicially affected the rights of any party.

Accordingly, pursuant to section 2422.17(f)(3) of our Rules and Regulations, the application for review of the Regional Director's Decision and Order on Petition for Certification of Unit is denied.

Issued, Washington, D.C., April 15, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Chairman
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY.