Navy Exchange Hawaii, SEIU Local 556, and Hawaii Federal Employees Metal Trades Council (Authority decision, June 26, 1987)

Final FLRA decision. The Authority denies the Navy Exchange's and SEIU Local 556's applications for review, leaving the regional director's correction naming the Hawaii Federal Employees Metal Trades Council as a joint representative in place. Because this order involves an appropriate unit determination under 5 U.S.C. § 7112, judicial review is excluded by 5 U.S.C. § 7123(a)(2).

Plain-English summary

A regional director corrected a Navy Exchange unit clarification to name both SEIU Local 556 and the Hawaii Federal Employees Metal Trades Council as joint exclusive representatives. The Navy and SEIU sought review, arguing that the regional director should have held a hearing and had made factual errors. The Authority found that a show cause order gave the parties an opportunity to present their positions and that the record supported the factual findings. It denied both applications for review, so the corrected clarification remained in effect. The Authority observed that a hearing might have avoided some questions but did not find the chosen procedure clearly erroneous.

Decision snapshot

• Authority: Representation review under 5 C.F.R. § 2422.17.
• Outcome: Both applications for review denied; corrected unit clarification stands.
• Key point: Preference for a hearing did not establish a compelling reason to overturn the regional director's supported findings.

Full text (FLRA public release)

[ v27 p816 ]

27:0816(88)AC

The decision of the Authority follows:

27 FLRA No. 88

DEPARTMENT OF THE NAVY
NAVAL RESALE ACTIVITY
NAVY EXCHANGE, HAWAII
Activity

and

SERVICE EMPLOYEES' INTERNATIONAL
UNION, LOCAL 556, AFL-CIO
Union

and

HAWAII FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
Union

Case No. 98-AC-60006

ORDER DENYING APPLICATIONS FOR REVIEW

I. Statement of the Case

This case is before the Authority on applications for review filed by the Department of the Navy, Naval Resale Activity, Navy Exchange, Hawaii (Activity) and the Service Employees' International Union, Local 556, AFL-CIO (SEIU), under section 2422.17(a) of the Authority's Rules and Regulations, seeking review of the Regional Director's Order Granting Motion To Be A Party To The Instant Case And Correcting Clarification Of Unit. /1/ The Hawaii Federal Employees Metal Trades Council (HFEMTC), filed an opposition to the applications. /2/

II. Regional Director's Decision

On August 1, 1986, SEIU filed a petition to amend a prior certification which had issued concerning the Navy Exchange unit. SEIU requested a change in the name of the Activity from "Navy Exchange, Pearl," to "Naval Resale Activity" and also sought to include certain employees within the unit. A hearing was held on this matter on September 30, 1986. Subsequently, by Order dated December 8, 1986, the hearing was scheduled to reopen for additional evidence on January 9, 1987. On January 8, 1987, HFEMTC filed a request with the Regional Director seeking to be named as a party in the proceeding. HFEMTC also requested that prior certifications concerning the unit involved be corrected to reflect HFEMTC's status as a joint exclusive representative of the unit. Thereafter, the scheduled hearing was postponed indefinitely and by Order dated January 27, 1987, the Regional Director required the parties to show cause as to whether the HFEMTC request to be a party to the proceeding should be granted and whether the certification of the Navy Exchange, Pearl unit should be corrected to reflect the status of HFEMTC as a joint exclusive representative with SEIU.

Based on the information and positions submitted by the parties, the Regional Director found that HFEMTC's name as a joint exclusive representative of the Navy Exchange unit had been inadvertently omitted from the Report and Findings in Case No. 8-RA-1 and that as a result of the omission, HFEMTC was erroneously deleted from the Certification of Representative of the unit in that case, which issued on April 9, 1980. The Regional Director rejected the arguments of the Activity and SEIU that HFEMTC's requests in this case should be denied because it did not seek review in Case No. 8-RA-1 and should not be allowed at this time to correct any error that occurred in 1980. He found that HFEMTC was not properly served with the Report and Findings, was never served with the Certification of Representative in Case No. 8-RA-1 and, further, was not informed by SEIU of the existence of either document. Further, he noted that when SEIU filed its petition in Case No. 98-CU-60005 on November 8, 1985, in which it sought to clarify the status of certain employees of the Activity, at no time during the processing of the case was the Region informed by either the Activity or the SEIU that there was an error in the certification issued in Case No. 8-RA-1. Consequently, the Regional Director granted HFEMTC's motion to correct the certification which he had issued in Case No. 98-CU-60005. He issued a Corrected Clarification of Unit in that case, identifying HFEMTC and SEIU as joint exclusive representatives. Additionally, the Regional Director granted HFEMTC's request to be made a party to this case as a joint exclusive representative. Finally, the Regional Director dismissed HFEMTC's request to correct the certification in Case No. 8-RA-1, stating that he had no authority to alter a certification issued by another region.

III. Applications for Review

In its application for review, the Activity contends that the Regional Director erred in his findings and that he overlooked facts that would lead to a different and correct result. The Activity therefore requests that the Regional Director's Orders "be nullified." Alternatively, the Activity argues that a hearing should be held to develop a complete record before any ruling is made concerning the appropriateness of amending or altering any prior certification affecting the unit in question.

SEIU contends in its application that HFEMTC and the Regional Director did not follow proper procedures to resolve HFEMTC's status. In support of that contention, SEIU argues, among other things, that the Regional Director improperly used a show cause order rather than an investigation and hearing. SEIU maintains that the Regional Director did not have the benefit of a complete record in making his determinations. SEIU also argues that a number of relevant and material facts concerning the relationship between SEIU, HFEMTC, and the Activity were not considered. SEIU requests that the Orders issued by the Regional Director be set aside and moves to reopen the record in the case.

HFEMTC in its opposition to the applications for review of the Activity and SEIU argues that the Regional Director's findings were correct and the proper procedures were followed. HFEMTC also contends that the Regional Director had the benefit of a complete record, that all of the parties had an opportunity to present their views and that they did respond at length to the Regional Director's show cause order.

IV. Analysis and Conclusion

The applications for review raise two issues: (1) whether the Regional Director correctly granted HFEMTC's request to become a party to this case; and (2) whether the Regional Director correctly found that HFEMTC was inadvertently and erroneously deleted from the Certification of Representative issued in Case No. 8-RA-1 and properly issued the Corrected Clarification of Unit in Case No. 98-CU-60005, designating HFEMTC a joint exclusive representative of the unit involved in this case. The appeal of the ruling concerning HFEMTC's request to become a party might be considered to be interlocutory. Section 2429.22 of our Regulations provides that we "ordinarily" will not consider interlocutory appeals. We find, however, that in the circumstances of this case the issues are so intertwined that we will consider them together.

Upon careful consideration of the applications, we conclude that no compelling reason exists for granting review. Rather, the applications merely express disagreement with the Regional Director's use of a show cause order rather than a hearing to develop a factual record and with his findings of fact based on the submissions of the parties in response to that order.

While it appears that a number of questions raised by the SEIU and the Activity might have been avoided if the Regional Director had followed other fact finding procedures, such as a hearing, and while a hearing may be the preferable procedure in situations such as this, that is not to say that the use of a show cause order was clearly erroneous within the meaning of section 2422.17(c) of the Rules and Regulations. The parties were afforded a full opportunity to present their views concerning the factual background in the matter. Although SEIU and the Activity may have expected or now prefer a hearing to present those views, that does not establish a compelling reason for granting their applications for review.

Similarly, SEIU and the Activity have not shown that any finding of the Regional Director on any substantial factual issue is clearly erroneous. On the contrary, the record developed from the submissions of the parties in response to his show cause order contains information that supports the Regional Director's factual determinations.

Finally, we find that the applications do not provide any other basis for granting review under section 2422.17(c) of the Rules and Regulations. /3/

Accordingly, pursuant to section 2422.17(f)(3) of the Rules and Regulations, the applications for review are denied.

Issued, Washington, D.C., June 26, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(1) The AFL-CIO requested that the matter be held in abeyance by the Authority pending efforts to resolve the dispute between SEIU Local 556 and the Hawaii Federal Employees Metal Trades Council (HFEMTC) under the AFL-CIO Internal Disputes Plan. The Authority appreciates and encourages the efforts of the AFL-CIO to resolve the dispute between its affiliate organizations through its internal processes. However, since the time limit for Authority action on applications for review of determinations of Regional Directors in cases such as this is prescribed by Congress in section 7105(f) of the Federal Service Labor-Management Relations Statute (the Statute), we cannot hold the applications in abeyance. Accordingly, we must deny the AFL-CIO request.

(2) HFEMTC also filed a request to file a supplemental opposition. However, because it would delay processing of the case, the request is denied.

(3) We note, contrary to the Regional Director, that there is nothing in the Statute or the Authority's Rules and Regulations, which precluded the Regional Director from correcting an administrative error in the certification originally issued in Region 8 in Case No. 8-RA-1.