90th Regional Support Command, Little Rock, Arkansas (Activity) and American Federation of Government Employees, Local 1017 (Exclusive Representative / Labor Organization) and Raul Marin (Petitioner / Individual) (Authority decision, March 29, 2001)

Final FLRA decision. This order vacates the earlier grant of review and dismisses the application without prejudice. It does not decide the merits of the second decertification petition. Under 5 U.S.C. § 7123(a), an aggrieved person may seek judicial review of a reviewable final order within 60 days after issuance; § 7123(a)(2) excludes orders involving appropriate-unit determinations under § 7112. Filing a petition does not stay an order unless the court orders a stay under § 7123(c).

Plain-English summary

An individual sought to decertify the union at the 90th Regional Support Command, but the Regional Director dismissed his first petition as untimely. The Authority initially granted review to consider whether the agreement-bar restrictions applied to an individual petition. A second, timely petition then cured the defect that prevented processing the first. The Authority vacated its review order and dismissed the application without prejudice rather than answering the legal question. It noted that processing of the second petition awaited related unfair-labor-practice proceedings and permitted a motion to reopen if that petition was not processed for reasons unrelated to the first.

Decision snapshot

• Authority: Agreement-bar restrictions and mootness of review after a timely second petition.
• Outcome: Review order vacated; application dismissed without prejudice.
• Key point: The Authority did not decide the agreement-bar question or the merits of decertification.

Full text (FLRA public release)

[ v57 p31 ]

57 FLRA No. 10

90th REGIONAL SUPPORT COMMAND

LITTLE ROCK, ARKANSAS

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1017

(Exclusive Representative/Labor Organization)

and

RAUL MARIN

(Petitioner/Individual)

DA-RP-00033

(56 FLRA 1041 (2000))

_____

DECISION ON REVIEW

March 29, 2001

Before the Authority: Dale Cabaniss Chairman; Donald S. Wasserman and Carol Waller Pope, Members.

I. Statement of the Case

By order dated December 29, 2000, the Authority, then-Chairman Wasserman concurring, granted the Activity's application for review of the Regional Director's Supplemental Decision and Order dismissing the petition, which was filed by Petitioner Raul Marin. The Regional Director dismissed the petition as untimely filed under the Federal Service Labor-Management Relations Statute (the Statute), and the Authority's Regulations. In granting review, the Authority asked the parties to file briefs addressing the following question:

Do restrictions on filing a petition where there is an existing collective bargaining agreement apply to a petition
filed by an individual seeking to determine whether the exclusive representative no longer represents a majority
of the employees in the unit?

Subsequently, the Authority received administrative notice from the Office of the General Counsel of the Federal Labor Relations Authority that the petitioning individual had filed a second decertification petition concerning the same unit of employees. The Office of the General Counsel advised that this second decertification petition was timely filed. The General Counsel also advised the parties that upon completion of processing of related unfair labor practice charges, "the Region will continue to process the [second] representation petition." Exhibit 1 to response to order to show cause, letter to parties from Regional Director dated January 8, 2001.

Accordingly, on January 12, 2001, the Authority issued to the parties an order to show cause why the Activity's application for review should not be dismissed as moot. The Activity filed a response to the order to show cause, accompanied by a brief. No other responses were filed.

II. Brief in Response to Order To Show Cause

The Activity's response to the order to show cause argues that the application for review is not moot because the Regional Director has not begun processing the second petition and "has suggested, in writing, that he may never process the second petition." Response at 1. Also, the Activity contends that the matter is not moot because there remains an absence of precedent on the applicability of the agreement bar period specified in section 7111(f)(3)(B) of the Statute to an individual seeking decertification of an exclusive representative. In addition, the Activity argues that even assuming, arguendo, that the second petition eventually is processed, the issued raised by the first petition "remains worthy of consideration . . . to provide future guidance." Id. at 2.

Finally, the Activity asserts that time is of the essence in resolving the question of the incumbent Union's continued majority raised by the petitions, although it offers no argument in support of its assertion.

III. Analysis and Conclusion

The Activity presents no basis for its claim that the Regional Director "has suggested, in writing, that he may never process the second petition," id. at 1. To the contrary, the Regional Director stated that he "determined to defer processing the [second] representational petition until [related] unfair labor practice proceedings are completed." Exhibit 1 at 1. The Regional Director reiterated: "Upon completion of the processing of the unfair labor practice charges, the Region will continue to process the representation petition." Id. at 2 (emphasis added).

Although our initial decision to grant review is consistent with the Activity's claims that there is an absence of precedent and that the issue is worthy of consideration, neither argument changes the fact that, at this time, there is no dispute to be resolved by the Authority. This is because the disputed defect that prevented the [ v57 p32 ] processing of the original petition has been cured by the filing of the second petition.

Accordingly, we will dismiss the application for review, without prejudice. If the second petition is not processed by the General Counsel for reasons unrelated to the first petition, the Authority would entertain a motion to reopen and reinstate the order granting review of the disposition of the first petition.

IV. Order

The order granting the application for review is vacated and the application is dismissed, without prejudice.