Veterans Affairs Outpatient Clinic, Las Vegas, Nevada and Janice K. Skiba and American Federation of Government Employees, Local 2297 (Authority decision, March 23, 1992)

FLRA representation decision. The Authority denies review of a regional director's dismissal of an election petition. Judicial review under 5 U.S.C. § 7123(a)(2) excludes orders involving appropriate-unit determinations under 5 U.S.C. § 7112. This representation order is not presented as beginning a judicial-review filing period.

Plain-English summary

A petitioner sought an election on whether AFGE Local 2297 should continue representing employees at the Las Vegas VA outpatient clinic. The acting regional director dismissed the petition as late and found no unusual circumstances supporting severance of the clinic employees from a nationwide unit. The Authority denied review. Papers initially sent to the wrong regional office did not make the later petition timely, and the Authority found no extraordinary reason to waive the deadline. It also found no clear error in the director's conclusion that the clinic employees should remain in the existing unit.

Decision snapshot

• Authority: Election petition filing rules under 5 U.S.C. § 7111(f)(3) and 5 C.F.R. § 2422.3(d).
• Outcome: Application for review denied; dismissal of the election petition stands.
• Key point: A petition was filed when the appropriate regional director received it, and no deadline waiver was justified here.

Full text (FLRA public release)

[ v44 p541 ]
44:0541(44)DR

The decision of the Authority follows:

44 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS AFFAIRS OUTPATIENT CLINIC

LAS VEGAS, NEVADA

(Activity)

and

JANICE K. SKIBA

(Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 2297

(Labor Organization)

9-DR-10004

ORDER DENYING APPLICATION FOR REVIEW

March 23, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

This case is before the Authority on an application for review filed by the Petitioner under section 2422.17(a) of the Authority's Rules and Regulations. In her Decision and Order the Acting Regional Director dismissed the petition for an election to determine whether the Union should continue to represent employees of the Las Vegas Outpatient Clinic of the Department of Veterans Affairs. The Acting Regional Director concluded that the petition was untimely filed because it was filed less than 60 days before the expiration of the existing collective bargaining agreement. The Acting Regional Director also concluded that no unusual circumstances exist to justify the severance of the Las Vegas Outpatient Clinic unit from the consolidated nationwide unit of which it is a part. For the following reasons, we will deny the application for review.

The Petitioner contends that the petition was timely filed because she had filed papers, including the requisite showing of interest, with the Authority's Washington, D.C. Regional Office within the time period specified in the Statute. Section 2422.2(e) of the Authority's Rules and Regulations clearly states that "[a] petition . . . for an election to determine if a labor organization should cease to be the exclusive representative . . . shall be filed with the Regional Director for the region in which the unit exists . . .
." Further, section 2422.2(e)(4) of the Authority's Rules and Regulations provides that "[a] petition will be deemed to be filed when it is received by the appropriate Regional Director . . . ." The petitioner discovered, in a telephone conversation on June 11, 1991, with the Assistant Regional Director of the Washington, D.C. Regional Office, that her materials had been improperly filed with that office, and the Washington, D.C. Regional Office returned those documents to her with the appropriate representation petition forms on June 12, 1991. Nonetheless, the petition in this case was not filed with the San Francisco Regional Office, the appropriate regional office, until July 15, 1991, well outside the period specified for filing an election petition in section 7111(f)(3) of the Statute and section 2422.3(d)(1) of the Rules and Regulations. Upon consideration of the Petitioner's application for review, we conclude that no extraordinary circumstances exist for waiving the stated time limits. 5 C.F.R. § 2429.23(b).

A petition for an election will also be considered timely at any time "when unusual circumstances exist which substantially affect the unit or the majority representation." 5 C.F.R. § 2422.3(d)(3). The Acting Regional Director concluded that no such unusual circumstances existed in this case. Upon consideration of the Petitioner's application for review, including all the arguments presented in support of the application, the Authority concludes that no compelling reason exists for granting the application. 5 C.F.R. § 2422.17(c). Rather, the application expresses mere disagreement with the Acting Regional Director's finding that the Las Vegas Outpatient Clinic employees are part of a nationwide unit and her conclusion, based on Authority precedent, that circumstances do not warrant severance of those employees from the existing unit. Those findings and conclusions have not been shown to be clearly erroneous or to have prejudicially affected the rights of any party. See, for example, Jerry L. Pettis Memorial Veterans Hospital, Loma Linda, California, 23 FLRA 340 (1986).

Accordingly, the application for review of the Acting Regional Director's Decision and Order is denied.

FOOTNOTES:
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have footnotes.)