New Mexico Army and, Air National Guard (Activity) and National Federation of Federal Employees, Independent, Local 1636 (Labor Organization/Petitioner/Local 1636) and Laborers' International Union of North America, AFL-CIO (Labor Organization) and National Federation of Federal Employees, Independent, National Office (Labor Organization) (Authority decision, March 16, 2000)

Read the official release (flra.gov)

Final FLRA decision. This Authority decision affirms an amendment of certification reflecting a change in union affiliation. 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

Members of a New Mexico National Guard local voted 40 to 4 to change affiliation from NFFE to LIUNA, then petitioned to amend the local’s certification. NFFE challenged the change because the local had not given the national union advance notice and NFFE later imposed a trusteeship. The Authority held that the existing affiliation-vote procedures did not require notice to the national union and that it lacked jurisdiction to enforce NFFE’s constitution in this proceeding. It also held that a trusteeship imposed after the certification petition was filed had no effect on that petition. The regional director’s approval of the amended certification was affirmed. Members Segal and Cabaniss wrote separate concurrences, while Chairman Wasserman dissented and would have required notice in an adversarial affiliation change.

Decision snapshot

• Authority: Certification amendments, union-affiliation procedures, and standards-of-conduct jurisdiction.
• Outcome: Local’s change of affiliation from NFFE to LIUNA upheld.
• Key point: The existing affiliation procedures did not require advance notice to the parent union.

Full text (FLRA public release)

[ v56 p145 ]

56 FLRA No. 18

NEW MEXICO ARMY AND

AIR NATIONAL GUARD

(Activity)

and

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES. INDEPENDENT, LOCAL 1636

(Labor Organization/Petitioner/Local 1636)

and

LABORERS' INTERNATIONAL UNION OF

NORTH AMERICA, AFL-CIO

(Labor Organization)

and

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES, INDEPENDENT

NATIONAL OFFICE

(Labor Organization)

DA-RP-70031

_____

DECISION

March 16, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1]

I. Statement of the Case

The underlying petition in this case sought to amend certification from the National Federation of Federal Employees (NFFE) to the Laborers' International Union of North America (LIUNA). The Regional Director's (RD's) decision in Case No. DA-RP-70031 granted Local 1636's (the Local's) petition to amend certification.

This case is before the Authority on NFFE's application for review of the RD's decision under section 2422.31(c) of the Authority's Regulations. LIUNA filed an opposition to NFFE's application for review.

The Authority originally granted in part and denied in part the application for review filed by NFFE. The application for review was granted on the following issues:

To what extent, if any, was NFFE entitled to notice that a Montrose [n2] vote would be conducted in this case? If it was entitled to any such notice, did it receive such notice?

What is the effect of a trusteeship upon a petition to amend certification where the trusteeship is imposed after a Montrose vote occurs and after a petition to amend certification has been filed?

Both NFFE and LIUNA filed briefs in response to the order granting the application for review.

For the reasons that follow, we find that NFFE was not entitled, under the Montrose doctrine, to notice that a vote to change affiliation would be conducted. We also find that a trusteeship imposed after a petition to amend certification has been filed has no effect on the petition. Accordingly, we affirm the RD's Decision and Order.

II. Background and RD's Decision

A. Background

The Local is the exclusive representative of all general schedule and wage grade Activity employees throughout New Mexico. The President of the Local received a petition from bargaining unit members requesting that the Local hold a special election to vote on changing its affiliation from NFFE to LIUNA. The Local hired the American Arbitration Association (AAA) to run a mail ballot election.

The Local President sent a letter to all bargaining unit members, informing them: (1) that he had received a request to hold an election to change affiliation from NFFE to LIUNA; (2) that the Local would hold such an election; (3) that the Local was mailing this letter to each member's last known home address; (4) the reasons for changing affiliation, as stated in the petition requesting a vote; (5) the representation choices that would be voted upon; (6) what affiliation meant; (7) that ballots should arrive shortly; and (8) that bargaining unit members could call the Local's headquarters collect to ask questions about the election. [ v56 p146 ]

AAA mailed 122 ballots with self-addressed, stamped envelopes marked "Secret Ballot" to all dues paying members of the bargaining unit, with a return deadline. The voting instructions contained a phone number to call if members had questions. The ballot provided two choices:

YES, I approve the disaffiliation of Local 1636 with the National Federation of Federal Employees (NFFE), and affiliation with the Laborers' International Union of North America (LIUNA).

NO, I disapprove of the disaffiliation with the National Federation of Federal Employees (NFFE).

RD's Decision at 3.

During a 9-day period, the Local President traveled throughout New Mexico to those locations where approximately 90 percent of the Local's membership was located. During that time, NFFE and LIUNA sent information to the Local's members. [n3]

AAA counted all ballots received by the deadline. Of the 45 envelopes received, 1 was rejected for lack of identification. Of the 44 ballots counted, 40 favored the affiliation change, and 4 did not favor the change in affiliation.

Thereafter, the Local filed a petition to amend certification; the petition identified the Local as an affiliate of LIUNA and of NFFE. A few days later, the Local filed an amended petition that deleted the statement identifying the Local as affiliated with LIUNA. Subsequently, the Local filed a second amended petition (hereinafter, the petition) that also did not state that the Local was affiliated with LIUNA.

After the petition was filed, NFFE notified the Local that it had imposed a trusteeship upon it effective immediately. That same day, NFFE notified the Local President that he was no longer an officer. In response, the Local President wrote:

As you know[, . . .] Local 1636 dues paying members voted 40 Yes, 4 No, 1 Challenged to disaffiliate with NFFE. I will pay dues through [the voting deadline date]. I do not recognize the Trusteeship as we are no longer affiliated.

Id. at 4.

B. RD's Decision

The RD found that the Local President had standing to file the petition because he was President of the Local, the certified exclusive bargaining representative of the employees, and acting for them. The RD found that the membership had directed the Local President to file a petition reflecting their decision to change affiliation from NFFE to LIUNA. Further, the RD found that, although it was irrelevant whether the Local President was paying dues when he filed the petition, there was no evidence to show that he actually stopped paying dues, either to the Local or to NFFE. [n4] The RD also noted that as a "newly affiliated" labor organization, the Local had standing to file a petition to amend certification. Id. at 6 n.1.

Next, the RD found that the election satisfied the four procedural criteria set forth in Montrose. The RD found that generally a special meeting must be held to discuss the affiliation vote, and that the meeting must be convenient to the entire membership so that all members have the opportunity to ask questions. However, the RD found that Authority precedent allows for the omission of the special meeting when geographical distance between bargaining unit members makes it impractical to hold such a meeting. In this case, the RD found that the geographical distance between members had precluded a membership meeting. Finally, the RD found that the secrecy of the ballots was maintained at all times. Thus, the RD found that the Local had satisfied the four procedural criteria set forth in Montrose.

The RD also found that there was no question concerning continuity of representation because the Local's officers, Constitution, autonomy, and day-to-day operations were unchanged. Further, the RD found that the collective bargaining agreement was unchanged and that the Activity recognized LIUNA.

Finally, the RD found that the trusteeship had no bearing on the certification petition because NFFE imposed it after the Local had filed the petition to amend certification.

In conclusion, the RD found that: (1) the President of the Local had standing to file the certification petition; [ v56 p147 ] (2) the petition was filed on behalf of the exclusive bargaining representative; (3) the vote fulfilled the four procedural criteria set forth in Montrose; and (4) a trusteeship imposed by NFFE on the Local after the election to change affiliation from NFFE to LIUNA was held and petition to amend certification was filed did not affect the petition. Accordingly, the RD ordered that the Local's certification be amended to show its affiliation with LIUNA.

III. Positions of the Parties

A. NFFE [n5]

NFFE contends that, pursuant to its National Constitution, the Local was required to inform NFFE that a vote to change affiliation was scheduled. NFFE argues that the Local must conduct its affairs pursuant to all laws, rules, regulations, and NFFE's Constitution. NFFE further asserts that it should have been aware of the proceedings at all stages in this case, as were the parties in Montrose.

NFFE also argues that Montrose "is wrong and must be reviewed, changed, or abolished in [its] entirety." NFFE's Brief at 7. NFFE questions the applicability of the four procedural criteria set forth in Montrose where the change in affiliation is not based on an agreement between two national labor organizations acting in each other's best interests.

In addition, NFFE argues that it "will not relinquish its right under the law to impose trusteeships on its subordinate locals pursuant to [5 U.S.C. § 7120, 29 C.F.R. §§ 458.26-.28], and the NFFE National Constitution." Id. at 5. NFFE contends that from the date a trusteeship is imposed, the national office is empowered to conduct local affairs.

Finally, NFFE argues that the oath of office administered to NFFE officers requires the officers to remain loyal to NFFE and work in its best interest. NFFE argues that "[f]or the Authority to continue allowing NFFE Local Officers to violate their Oath of Office provides the inference [that] this type of behavior [coordinating disaffiliation] is acceptable and will be condoned." Id. at 6. Further, NFFE notes that allowing its officers to use the procedural criteria established in Montrose to act in concert with other labor organizations "renders [NFFE's] Constitution [and] Oath of Office meaningless and inconsequential." Id.

B. LIUNA [n6]

LIUNA argues that the four procedural criteria set forth in Montrose were not developed to provide notice to related organizations, i.e., a national union and its local affiliates, regarding a scheduled disaffiliation vote. LIUNA contends that any such notice should be effectuated through procedures established in NFFE's Constitution:

NFFE [] is entitled to [whatever] notice the members and the exclusive representative decide to give it. The Authority is not an actor until the Amendment of Certification is filed and at that point the Authority has to make a determination as to who the interested parties are and the criteria for participation and the status of the participants.

LIUNA's Brief at 6.

LIUNA contends that the RD did not commit a prejudicial error by not notifying NFFE of the Local's petition to amend certification, and that "[o]ne suspects that [NFFE wanted] to be notified of the Amendment Petition as soon as possible so that they [could] place the Local Union in trusteeship and so [NFFE could] raise questions about the filing to delay the deliberations of the Regional Director." Id. at 3.

LIUNA argues that the Authority should "take no notice" of a trusteeship unless the trusteeship's validity is a threshold issue to be resolved prior to the application of the four procedural criteria set forth in Montrose. Id. at 6. LIUNA relies on the General Counsel's Guidelines for the proposition that only two issues--continuity of representation and the safeguarding of democratic procedures--are examined by the Authority if "the [ v56 p148 ] amendment of certification is filed prior to the imposition of trusteeship." [n7] Id.

LIUNA further argues that if a trusteeship is imposed prior to the filing of a petition to amend certification, then the Authority should investigate why the trusteeship was imposed. If the only reason offered for imposing a trusteeship is to block disaffiliation, LIUNA argues, then the petition should not be delayed, as courts have repeatedly determined [n8] that disaffiliation is not a proper purpose for the imposition of a trusteeship, pursuant to 29 U.S.C. § 462. [n9]

IV. Analysis and Conclusions

A. NFFE Was Not Entitled to Notice that a Vote to Change Affiliation Would be Conducted under Montrose; and the Authority Does Not Enforce NFFE's Constitution

NFFE argues that it was entitled to notice that a vote to change affiliation was scheduled, in accordance with its Constitution and Montrose. For the following reasons, we find that NFFE was not entitled to notice that a vote to change affiliation was scheduled. We also find that we lack jurisdiction to enforce NFFE's Constitution.

1. Procedural Criteria Established in Montrose Do Not Require Notice to NFFE

To amend the designation of an exclusive representative in an existing unit to reflect a change in affiliation, the procedures set forth in Montrose must be followed. Under Montrose, to ensure that an amendment of certification conforms to the desires of a union's membership, four procedural criteria must be met:

(1) [a] proposed change in affiliation should be the subject of a special meeting of the members of the incumbent labor organization, called for this purpose only, with adequate advance notice provided to the entire membership; (2) the meeting should take place at a time and place convenient to all members; (3) adequate time for discussion of the proposed change should be provided, with all members given an opportunity to raise questions within the bounds of normal parliamentary procedure; and (4) a vote by the members of the incumbent labor organization on the question should be taken by secret ballot, with the ballot clearly stating the change proposed and the choices inherent therein.

Montrose, 4 A/SLMR at 860. The Authority has determined that where geographic dispersion precludes a special meeting of all of the members of the bargaining unit, a mail ballot may be substituted. See U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 34 FLRA 428, 444-45 (1990).

The Authority has applied the procedural criteria established under Montrose in other cases where there was no agreement on change in affiliation between two national labor organizations. See U.S. Department of Defense, National Guard Bureau, New York National Guard, Division of Military and Naval Affairs, Latham, New York and National Federation of Civilian Technicians, New York State Council and Association of Civilian Technicians, Inc., 46 FLRA 1468, 1469 (1993); U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois and National Association of Government Employees, Local R7-72 and National Federation of Federal Employees, 46 FLRA 76, 79, 83-84 (1992); U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico and National Council of Bureau of Indian Affairs Educators, 33 FLRA 482, 487, 492 (1988); cf. Union of Federal [ v56 p149 ] Employees and National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Corps of Engineers, St. Louis District, St. Louis, Missouri, 41 FLRA 562, 583 (1991) (applying the four procedural criteria set forth in Montrose where a local union sought to disaffiliate from a national labor organization and not affiliate with another national labor organization, but maintain independent status). Apart from its assertion that the Authority "should review whether the antiquated changing of affiliation" procedural criteria established under Montrose apply in cases such as this one, involving "adversarial entities" (NFFE's brief at 7), NFFE provides no arguments why application of the procedural criteria established under Montrose is wrong. Therefore, we find that a modification to Montrose to require notification to a national labor organization of a disaffiliation vote is not warranted at this time.

2. The Assistant Secretary of Labor Is the Appropriate Authority for Enforcement of NFFE's Constitution

NFFE contends that its Constitution requires that local officers provide NFFE with notice that a vote to change affiliation is scheduled, and that by failing to do so, they have violated their Oaths of Office. See NFFE's Brief at 6. [n10] In essence, NFFE requests that the Authority enforce NFFE's Constitution to require that local officers provide advance notice to the incumbent labor organization headquarters whenever employees plan to conduct a vote to change affiliation.

The Authority has specifically recognized that the Assistant Secretary of Labor has "exclusive jurisdiction over Standards of Conduct" regarding issues that do not fall under the purview of the Federal Service Labor-Management Relations Statute (the Statute). See American Federation of Government Employees, Local 2419, 53 FLRA 835, 841 (1997) (citing National Association of Government Employees, Local R5-66, 17 FLRA 796, 813 (1985). That is, even assuming that a breach of NFFE's Constitution occurred, we are empowered to act regarding such a violation only if it also constitutes a violation of the Statute. See id., 17 FLRA at 814. NFFE's claim raises a Standards of Conduct issue, [n11] and raises no statutory claim. Accordingly, we conclude that the Authority has no jurisdiction to enforce NFFE's Constitutional claim in this case.

B. A Trusteeship Imposed After a Petition to Amend Certification has been Filed has no Effect on the Petition

In U.S. Environmental Protection Agency, Washington, D.C. and National Federation of Federal Employees, Local 2050 and Environmental Employees Collectively Organized, 52 FLRA 772 (1996) (EPA), the Authority addressed a trusteeship that had been imposed before the membership voted to change affiliation. The Authority stated that, in certain circumstances, an RD must presume the validity of such a trusteeship and that an RD should place a petition seeking amendment of certification in abeyance pending a decision on the validity of the trusteeship by the Assistant Secretary of Labor, if the RD is not satisfied as to the trusteeship's validity. See id. at 781-82.

The RD here found that the trusteeship was irrelevant in determining whether the petition should be granted, because NFFE imposed it after the Local filed the certification petition. NFFE offers no argument to the contrary. [n12] Therefore, we find that a trusteeship imposed after a petition to amend affiliation has been filed has no effect on the petition.

V. Decision

The Regional Director's Decision and Order is affirmed.

File 1: Authority's Decision in 56 FLRA No.
18

File 2: Opinion of Member Segal

File 3: Opinion of Member Cabaniss

File 4: Opinion of Chairman Wasserman

Footnote # 1 for
56 FLRA No. 18

• Authority's Decision

The separate, concurring opinions of Members Segal and Cabaniss follow, and Chairman Wasserman's dissenting opinion is set forth at the end of the decision.

Footnote # 2 for
56 FLRA No. 18

• Authority's Decision

See Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974) (Montrose). See also Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987) (Florida NG), in which the Authority adopted the A/SLMR's procedural criteria to change affiliation established in Montrose.

Footnote # 3 for
56 FLRA No. 18

• Authority's Decision

The record contains no information as to the nature of the information supplied by the unions. See id. at 4. As the content of the information provided to the members has not been put at issue by any party, we do not address it further. We note, however, that it may call in to question the extent to which NFFE had actual, if not formal, notification of the scheduled disaffiliation vote.

Footnote # 4 for
56 FLRA No. 18

• Authority's Decision

Pursuant to an agreement between the Local President and NFFE, the Activity is placing the dues of the Local's members into an escrow account.

Footnote # 5 for
56 FLRA No. 18

• Authority's Decision

NFFE makes several arguments regarding the issues that the Authority declined to review in its January 7 Order. See NFFE's Brief at 3-4, 8. As such, we do not address those arguments.

Footnote # 6 for
56 FLRA No. 18

• Authority's Decision

5 C.F.R. § 2422.31(c) sets forth the grounds for granting an application for review. LIUNA argues that section 2422.31(c) provides no authority for granting review of the issues set forth in the Authority's Order granting review in part. LIUNA further argues that consideration of those issues is tantamount to issuing an advisory opinion, which LIUNA asserts the Authority may not do, pursuant to 5 C.F.R. § 2429.10. LIUNA contends that the issues on which the Authority granted review had not been raised in the application for review. Contrary to LIUNA's contention, we find that: (a) section 2422.31(c) provides authority for granting review of the issues in this case; (b) consideration of the issues will not constitute issuance of an advisory opinion; and (c) NFFE's Application for Review expressly raised the issues for which review was granted. See NFFE's Application for Review at 5-7. Accordingly, we will decide those issues.

Footnote # 7 for
56 FLRA No. 18

• Authority's Decision

LIUNA refers to the "General Counsel's Guidelines." We construe this as a reference to the Office of the General Counsel's Representation Proceedings Hearing Officer's Guide (Guide). Regarding an amendment to affiliation, the Guide states:

Two conditions must be met when determining whether the designation of the exclusive representative of a recognized or certified unit may be amended: (1) due process, in that union members must have an adequate opportunity to vote on the change[;] and (2) evidence of substantial continuity between the union existing before and after the affiliation.

Id. § 43 at 135.

Footnote # 8 for
56 FLRA No. 18

• Authority's Decision

LIUNA cites AFL-CIO Laundry and Dry Cleaning International Union v. AFL-CIO Laundry, 70 F.3d 717 (1st Cir. 1995); Local Union 13410, United Mine Workers of America v. United Mine Workers of America et al., 475 F.2d 906, 912 (D.C. Cir. 1973); United Brotherhood of Carpenters v. Brown, 343 F.2d 872, 883 (D. Ariz. 1988); International Brotherhood of Boilermakers v. Local Lodge D405, 699 F. Supp. 749, 755 (D.Ariz. ); and International Brotherhood of Boilermakers v. Local Lodge D474, 673 F. Supp. 199, 203 (W.D.Tex. 1987).

Footnote # 9 for
56 FLRA No. 18

• Authority's Decision

29 U.S.C. § 462 states:

Trusteeships shall be established and administered by a labor organization over a subordinate body only in accordance with the constitution and bylaws of the organization which has assumed trusteeship over the subordinate body and for the purpose of correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organization.

Footnote # 10 for
56 FLRA No. 18

• Authority's Decision

NFFE also argues that 5 C.F.R. § 2422.4 requires service of all documents on all parties. Regardless of whether NFFE was a "party," the Local did serve a copy of the petition on NFFE. See Statement of Service to petition, filed May 1, 1997. Additionally, the Local listed NFFE's National Office on the petition forms, as a labor organization affected by its petition. Pursuant to section 2422.6(a) of the Authority's Regulations, as an affected labor organization, the RD was required to notify NFFE that a petition had been filed, and did so.

Footnote # 11 for
56 FLRA No. 18

• Authority's Decision

If a labor organization has a claim that its Constitution was violated as to a trusteeship, the election of officers, or fiduciary matters, pursuant to titles III, IV, or V of the Labor-Management Reporting and Disclosure Act (LMRDA), such as NFFE's claim in this case, then that claim falls under the jurisdiction of the Assistant Secretary of Labor, Employment Standards Administration, Office of Labor-Management Standards (OLMS). The LMRDA was enacted by Congress primarily to ensure basic standards of democracy and fiscal responsibility in labor organizations representing employees in private industry. OLMS also administers provisions of the Civil Service Reform Act of 1978 and the Foreign Service Act of 1980 relating to Standards of Conduct for Federal employee unions, which are comparable to LMRDA requirements. See 29 U.S.C. § 461, et seq.; § 481 et seq., § 501 et seq.; and 29 C.F.R. Parts 457-59.

Footnote # 12 for
56 FLRA No. 18

• Authority's Decision

In its Brief, at 5, NFFE states that following the date a trusteeship is imposed, the NFFE National Office or the trustee appointed by it, is empowered to run the affairs of a NFFE local "[f]rom that day forth[.]"

[ v56 p150 ]

Member Segal concurring:

I join the majority decision in this case because it is clear that, under Authority precedent applying the Montrose doctrine, the Regional Director reached the correct conclusion. This precedent was initially developed over 25 years ago by the Assistant Secretary of Labor for Labor-Management Relations, under the program that preceded enactment of the Statute. See Executive Order 11491, as amended, Section 6. The Authority has consistently applied the Montrose doctrine in situations where a local union seeks to disaffiliate from a national union, without any suggestion that the local must notify the national of that intention. See Majority Opinion at 11-12. The Montrose doctrine, which was developed "to assure that . . . any change in affiliation accurately reflects the desires of the membership and that no question concerning representation exists," does not appear to preclude such notice. See Montrose, 4 A/SLMR at 860. At the same time, however, it has not been interpreted to require it.

The petitioner squarely requests that the Authority revisit this precedent, asserting solely that the Montrose doctrine was developed in connection with a "friendly" disaffiliation and should not be applied to one involving "adversarial entities." NFFE Brief at 7. I disagree with my concurring colleague's unexplained rejection of the petitioner's request. In my view, the Authority should grant the request and should reconsider the precedent. On this point, therefore, I agree with the dissent. Although the Montrose doctrine has been applied without regard to whether or not the proceedings were adversarial, it is not evident that the Authority has ever considered questions concerning its application in adversarial proceedings. It may well be that modification of the doctrine in such circumstances is in order.

However, I believe such reconsideration of the Montrose doctrine should be conducted with the involvement of the participants in the Federal labor-relations program who will be affected by any departure from such long-established precedent. The doctrine governs whether and how the exclusive representative of all bargaining unit members can be changed by a vote conducted among union members only. Changes in the doctrine, which is grounded almost exclusively in policy judgments rather than statutory construction, are likely to have major consequences for all participants in the Federal labor-relations program -- unions, agencies, and employees alike. For these reasons, I decline to redraw settled lines without seeking and giving due consideration to the views of those who will be affected by any new rules adopted.

It is certainly true, as my dissenting colleague points out, that the Authority has revised precedent in other cases without seeking such views. However, in each case a determination to solicit broader participation will turn on considerations such as the nature of the issues presented, the extent of the record that is already before the Authority, the degree to which doctrine is settled and is permissible under the Statute, and whether any Authority Member believes that further submissions will aid him or her in resolving important questions. In this case, these considerations warrant, in my view, reconsidering the Montrose precedent only with the aid of input from the labor-relations community, and not on the basis of the scant record on this point that the parties have created. The Montrose doctrine is grounded almost exclusively in policy, and no questions have been raised about either its consistency with the Statute or the Authority's consistency in applying it. [n1] Although legal arguments advanced by participants in the labor-relations community can certainly provide valuable assistance to the Authority in resolving questions about the Statute's requirements, it seems to me that carefully considering such views is particularly important when the questions to be resolved primarily concern policy determinations. This is even more compelling where, as here, the parties' submissions concerning modification of the Montrose doctrine comprise only a few sentences. Seeking broader views before modifying the Montrose doctrine is both reasonable and desirable, and could have been accomplished in this case (even after the parties' briefs were filed), with a decision issued, long before now.

Given the absence of a more complete record, and in order to arrive at a majority opinion, I reluctantly join in resolving this case solely on the basis of applying existing precedent, leaving reconsideration of the Montrose doctrine until another day.

File 1: Authority's Decision in 56 FLRA No. 18

File 2: Opinion of Member Segal

File 3: Opinion of Member Cabaniss

File 4: Opinion of Chairman Wasserman

Footnote # 1 for
56 FLRA No. 18

• Opinion of Member Segal

Cf. United States Immigration and Naturalization Service, Washington, D.C., 55 FLRA 69 (1999) (interpreting and applying language of section 7116(a)(6) of the Statute); National Treasury Employees Union and Federal Deposit Insurance Corporation, 53 FLRA 1469 (1998) (interpreting and applying language of 29 U.S.C. § 255(a)); U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (interpreting and applying language of sections 7106 and 7122 of the Statute); International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677 (1995) (interpreting and applying language of section 7103(a)(14)(C) of the Statute based on remand from U.S. Court of Appeals for D.C. Circuit, which found, among other things, inconsistency between Authority decisions on issue).

[ v56 p151 ]

Member Cabaniss concurring:

There is one point I wish to make in addition to the majority decision. The stated purpose of the Federal Service Labor-Management Relations Statute is "to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government." 5 U.S.C. § 7101(b) (emphasis added). The decision to hold a vote to change affiliation is one made by local union members. Other than the four criteria established in Montrose, the process of calling for, scheduling, and holding a meeting to vote on amending affiliation is beyond the purview of outside parties and is, at its core, an employee issue. Accordingly, the Montrose procedure is consistent with the Statute in protecting the rights of employees. As LIUNA accurately notes, national unions are likely to impose an emergency trusteeship on a local union seeking to hold a vote to change affiliation so that disaffiliation can be stopped. [n1]

I appreciate a labor organization's interest in continuing to represent a bargaining unit of employees it has organized and served, and I recognize a labor organization's desire to enforce its Constitution. However, as noted above, the appropriate avenue for a labor organization to pursue enforcement of its Constitution is with the Assistant Secretary of Labor, and not in these proceedings.

File 1: Authority's Decision in 56 FLRA No. 18

File 2: Opinion of Member Segal

File 3: Opinion of Member Cabaniss

File 4: Opinion of Chairman Wasserman

Footnote # 1 for
56 FLRA No. 18

• Opinion of Member Cabaniss

NFFE states that "[had it] been notified in accordance with its National Constitution that a meeting to discuss and vote to amend its certification was going to take place, [Local 1636] would have been placed in [t]rusteeship earlier." NFFE's Brief at 5.

[ v56 p151 ]

Chairman Wasserman, dissenting

This case is ripe for our review of how the Montrose doctrine applies in adversarial takeover situations. For the reasons stated below, I dissent from the majority's application of the current Montrose doctrine because I believe that the addition of a notice requirement to a parent labor organization is warranted in these circumstances.

Congress vested the Authority with the responsibility to resolve representation issues, including the designation of exclusive representatives. See 5 U.S.C. §§ 7105(a)(2)(A) and (B); §§ 7111; 7112. In exercising this congressional mandate, we determine collectively when it is appropriate to solicit the views of parties in a case or the views of the labor relations community at-large to assist in resolving questions that come before us. My colleagues and I decided that it would be beneficial to solicit only the parties' views in this case and we did so more than two years ago. The parties responded as they saw fit. I am not aware of any cases in which the Authority solicited input from the parties first and then solicited input from the community.

It is now time for the Authority to exert its leadership role and resolve the questions raised. To delay further the resolution of this case in order to solicit the views of all the participants in the labor-relations program, when we are quite capable of addressing the issues presented, would not assist either the parties, who deserve a final resolution of their dispute, or the labor-relations community at-large.

Authority precedent is replete with examples of cases involving important legal issues and policy judgments where the Authority did not solicit broad input even though the decisions had a significant effect on large segments of the labor-relations community. For example, in International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135, et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677 (1995), the Authority reexamined and redefined the meaning of the term "specifically provided for by law." That term has enormous relevance in assessing the conditions of employment that may be negotiated by all parties in the [ v56 p 152 ] federal sector. Yet, that reexamination was done without the benefit of community participation. [n1]

The Authority has demonstrated no reluctance in modifying precedent of even longer duration than Montrose despite the absence of any request to do so by any of the parties whose views were, in fact, solicited. In this connection, I point to Social Security Administration, 52 FLRA 1159 (1997) (SSA), in which a majority of the Authority, including my concurring colleague, found that the so-called "Natick" approach to addressing questions of unlawful assistance to unions in representation campaigns warranted revision since that approach "ha[d] been applied by the Authority to address situations different from those presented in Natick[,]" was "inflexible" and was "practically unworkable in certain circumstances . . . ." 52 FLRA at 1168, 1174. [n2] While I recognize that distinctions can be drawn between this case and SSA, the fact remains that my colleague had no hesitancy altering existing precedent where no one had explicitly requested us to do so. For reasons that remain elusive to me, there seems to be an unwillingness to address head on our Montrose precedent, even where we have been squarely asked to do just that and my colleague acknowledges a need to review that precedent.

The insistence on broad community input is also at odds with our deliberative process in other cases involving representation issues, which have presented both policy judgments and legal questions. Scanning our precedent in that area over the past five years, I have found a number of instances in which we resolved an application for review of a regional director's decision based on the record before us or after soliciting the views only of the parties in that particular case. See, e.g., U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 55 FLRA 359 (1999) (Authority addressed appropriateness of unit question based on record before it); United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 51 FLRA 1414 (1996) (Authority requested party briefs on application of successorship and accretion principles). We do not shy away from modifying principles of long-standing duration where there is a compelling reason to do so. See, e.g., U.S. Department of Veterans Affairs, 55 FLRA 781 (1999) (Authority modified existing precedent to require regional directors to resolve petitions for unit clarification involving vacant positions under prescribed circumstance). Indeed, we even addressed a novel issue in a case involving the Montrose doctrine, without seeking community input. See U.S. Environmental Protection Agency, Washington, D.C., 52 FLRA 772 (1996) (EPA) (Authority addressed standing to file a change of affiliation petition where a trusteeship had been imposed prior to the members' vote).

My colleague states, but does not entirely explain why review of policy-based doctrines commands broad community input. The Statute draws no distinction between the Authority's responsibility to address and decide policy versus legal doctrines and I do not believe we are any less equipped to decide the former over the latter.

Unlike my colleague, I also believe that the record provides an adequate basis for us to review the Montrose doctrine. For example, the applicant states that the Montrose doctrine was developed in one set of circumstances and questions whether this "antiquated misapplied analysis applies" in other circumstances. Application for Review at 7. It seems to me that the applicant's question raises a direct challenge with regard to the doctrine's consistency with the Statute.

In sum, I am not opposed to soliciting input. It is certainly appropriate to consider the views of the entire labor relations community on issues that have wide significance, and I have advocated seeking broad input on many occasions. I agree with my concurring colleague that a determination to solicit broader participation turns on such matters as the nature of the issue presented, the extent of the record before the Authority, the degree to which the doctrine is settled and is permissible under the Statute, and whether any Member believes that further submissions will aid in resolving important questions. Applying these considerations, we all determined that input only from the parties was appropriate in this case. As stated earlier, I believe that further delay of this case [ v56 p 153 ] to seek broader input at this time is unwarranted. [n3] I take particular note of the fact that the employees in this case sought to change their exclusive representative through the filing of a petition more than two and a half years ago. It is now more than two years since we asked the parties to brief us on two discrete issues. To delay, even more, the furnishing of an answer in this case does a disservice to the employees who, for all we know, may well have lost interest in this proceeding. "[T]he Authority has long held that representation matters must be resolved expeditiously." EPA, 52 FLRA at 780-81.

I have been, and am, prepared to focus on and resolve the case at hand. Here, the parent labor union, National Federation of Federal Employees (NFFE), argues that the Montrose doctrine "is wrong and must be reviewed, changed, or abolished in [its] entirety." NFFE's Brief at 7. NFFE claims, and correctly so, that the Montrose procedures "originally settled the question between amicable entities who desired the same conclusion." Application for Review at 7. NFFE states, among other things, that it should have been made aware of the proceedings at all stages of this case as were the parties in Montrose. According to NFFE, the question now to be addressed is whether Montrose "applies to two adversarial entities." Id.

The "Montrose doctrine" refers to a case of the same name that was decided under Executive Order 11491, the forerunner to the Statute: Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974), review denied, 3 FLRC 259 (1975). The factual setting in which the doctrine was developed is critical to an understanding of my position and, therefore, I discuss it at some length.

In Montrose, employees of a local union asked their parent organization to be released from their charter in order to affiliate with a different labor organization. Subsequently, representatives of the parent and the new labor organization arranged for "a transfer of affiliation[.]" Id. at 859. The new labor organization filed a petition with the Assistant Secretary of Labor seeking to change the designation of the labor organization representing the affected employees.

The Assistant Secretary dismissed the petition. He found that two requirements had to be satisfied in order to amend a certification or recognition. First, any change brought about by the amendment could not affect the continuity of the employees' representation. Second, certain procedures had to be met "to assure that any such change in affiliation accurately reflects the desires of the membership and that no question concerning representation exists[.]" As to those procedures, the Assistant Secretary stated the following:

[I]n order to assure that an amendment for certification or recognition conforms to the desires of the membership, the following steps, at a minimum, should be taken: (1) [a] proposed change in affiliation should be the subject of a special meeting of the members of the incumbent labor organization, called for this purpose only, with adequate advance notice provided to the entire membership; (2) the meeting should take place at a time and place convenient to all members; (3) adequate time for discussion of the proposed change should be provided, with all members given an opportunity to raise questions within the bounds of normal parliamentary procedure; and (4) a vote by the members of the incumbent labor organization on the question should be taken by secret ballot, with the ballot clearly stating the change proposed and the choices inherent therein.

4 A/SLMR at 860.

The first opportunity the Authority had to apply the Montrose doctrine under the Statute, was in Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987). In that case, a union filed a petition to change the name of the representative from one local of a national union to a different local within the same national union. The Authority determined that the same principles that applied to a change in affiliation applied to mergers, as well. See also Naval Aviation Depot, Naval Air Station, Alameda, California, 47 FLRA 242 (1993) (application of Montrose doctrine to merger).

Significantly, in my view, in both of these situations, the "consented to" takeover and the intra-union merger, all the affected labor organizations were aware of or agreed to the proposed changes in affiliation. In contrast to these situations, the Authority has applied the Montrose doctrine where there was no apparent awareness of and/or agreement among the unions affected by the change. See cases cited in Majority opinion, slip op. at 11-12. In reality, it is difficult to tell conclusively from those decisions whether the parent labor organization had knowledge of the proposed change in affiliation. [ v56 p 154 ] Even assuming, however, that there is Authority precedent applying the Montrose doctrine in situations involving adversarial takeovers, I believe that the indiscriminate application of that doctrine to cases for which the doctrine was not developed is wrong.

Let us review the wording of the Montrose doctrine itself. There are four procedural criteria which, at a minimum, must be met. Of the four stated criteria, three are focused on the holding of, and conduct at, a special meeting among union members. Specifically, these criteria require that members be given adequate advance notice of a special meeting, called for the sole purpose of discussing a proposed change in affiliation, that is conveniently held for all members to attend and at which there is adequate time to discuss the proposed change. Quite clearly, the purpose of the special meeting is to inform the members of the reasons for the proposed change and to allow the members an opportunity to discuss freely and fully the entire range of issues encompassed by such a change, including the ramifications that a change in exclusive representative would have on the members and the bargaining unit. Elemental notions of fairness and due process, including the requirement that normal parliamentary procedures be followed, dictate that all sides be given an opportunity to voice their positions. It seems quite evident that providing a forum where all voices are given an opportunity to be heard serves to promote an informed electorate.

Given the case before us today, the words of the Assistant Secretary take on added significance when one considers that, nearly 25 years ago, he recognized that there might be a need to develop additional procedural safeguards. It was for that reason that the Assistant Secretary did not limit the safeguards to those that were appropriate for that factual setting, but instead, clearly stated that the prescribed safeguards were "at a minimum." 4 A/SLMR at 860. The Authority has never accepted the invitation to consider whether other safeguards are appropriate in different situations. [n4] Although perhaps belated, I now accept that invitation.

Simply stated, I believe that when employees seek to change their affiliation in an adversarial takeover situation, the certified representative must notify its parent organization of the proposed change. This notice requirement would give the parent labor organization an opportunity to express its views and make its position known to the union membership at a time when the membership is engaged in its deliberations. Providing the parent labor organization notice furthers the primary purpose of the procedural safeguards, which is to have a fully informed electorate vote on a proposed change of affiliation. Particularly in cases such as this one, where a geographically dispersed unit makes the holding of a special meeting among all the members impractical or impossible, the need for a notice requirement to the parent labor organization is compelling.

I recognize that the existing Montrose safeguards have been applied in the federal sector labor-relations program for many years with both apparent understanding and relative ease by the community. I do not lightly disrupt clear and well-accepted Authority precedent. However, the additional procedural safeguard that I would require is not, by any means, an extreme departure from the principles of Montrose. To the contrary, it is designed to bolster the principles underlying Montrose, which I have identified above. Furthermore, I do not view the notice requirement as an undue imposition on a local union's internal affairs any more so than the original Montrose requirements or, for that matter, standards of conduct that are prescribed for labor organizations. See 5 U.S.C. § 7120. In any event, since the notice requirement serves to place union members in a more informed position, and ultimately serves to strengthen their representation, the benefit to employees in this instance outweighs any cost to the institution.

In rejecting a notice requirement to the parent labor union, my other colleague emphasizes that the "stated purpose" of the Statute is to prescribe rights and obligations of employees." See slip op. at 18. In fact, the Statute prescribes rights and obligations of labor organizations just as much as it does for employees and perhaps even more so. Indeed, it is labor organizations and collective, not individual employee, bargaining that Congress found to be in the public interest. See 5 U.S.C. § 7101. The Statute is replete with protections for the institutional interests of labor unions, of which my colleague should be well aware. See 5 U.S.C. § 7114; American Federation of Government Employees, National Council of HUD Locals 222 and U.S. Department of Housing and Urban Development, 54 FLRA 1267, 1276 (1998) (Member Wasserman dissenting as to other matters) (discussing obligation of [ v56 p 155 ] agencies to bargain with exclusive representatives under section 7114(a)(1) of the Statute). A policy that allows all stakeholders to express their respective interests and to demonstrate how they will represent the bargaining unit promotes employee rights, which furthers the statutory purpose.

In establishing a notice requirement, I also realize that a practical consequence may be a greater use of trusteeships imposed by parent labor organizations to forestall disaffiliation attempts. Safeguards exist in that eventuality, however, since trusteeships can only be imposed for valid reasons. Moreover, trusteeships, the validity of which is questioned, can be challenged through procedures established by the Department of Labor. See 29 C.F.R. § 458.26-28; EPA, 52 FLRA at 779-80. Lastly, a trusteeship can never foreclose a petition and election upon a valid showing of interest, when the petition is filed during a "window period."

Having set forth my views, I have only to apply the Montrose doctrine, as modified to reflect a notice requirement, to the facts of this case. [n5] There is no dispute that NFFE was not given notice of the proposed change in affiliation by its local. Therefore, I would find that the vote among the union members was not held in conformance with the stated requirements. That being the case, the petition to amend the change in certification should have been dismissed. [n6] In reaching this result, I find no reason to question, or disturb, the Regional Director's application of the other Montrose requirements.

Since I would dismiss the petition in this case, there is no need for me to address any of the other issues presented, such as the arguments pertaining to NFFE's constitution and the effect of a trusteeship imposed after a petition to amend certification has been filed.

As a final matter, I wish to note that, in setting forth and applying my views on a notice requirement in adversarial takeover situations, I have purposely not set out all the parameters of that requirement. I believe it would be more appropriate to provide further guidance and, as the need arises, consider other aspects of the Montrose doctrine, when one or both of my colleagues can join in that task.

File 1: Authority's Decision in 56 FLRA No. 18

File 2: Opinion of Member Segal

File 3: Opinion of Member Cabaniss

File 4: Opinion of Chairman Wasserman

Footnote # 1 for
56 FLRA No. 18

• Opinion of Chairman Wasserman

Other examples of cases in which the Authority reversed precedent or modified or established "frameworks" without broad community input, include: United States Immigration and Naturalization Service, Washington, D.C., 55 FLRA 69 (1999) (INS) (Authority majority reversed long-standing interpretation and application of section 7116(a)(6) of Statute); National Treasury Employees Union and Federal Deposit Insurance Corporation, 53 FLRA 1469 (1998) (Authority reversed precedent regarding statute of limitations under Fair Labor Standards Act and set forth appropriate standard); and U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146 (1997) (BEP) (Authority revised analytical framework for addressing exceptions to arbitral awards that alleged violations of management rights). Even in those cases in which the Authority reversed or modified its precedent based on court remands, which arguably would favor broad input, the Authority has not routinely done so.

Footnote # 2 for
56 FLRA No. 18

• Opinion of Chairman Wasserman

I concurred with the ultimate result reached in the SSA case but did not find, for reasons more fully expressed therein, that a revision of Natick was warranted.

Footnote # 3 for
56 FLRA No. 18

• Opinion of Chairman Wasserman

I do not understand my colleague's statement that seeking broader views "could have been accomplished in this case (even after the parties' briefs were filed), with a decision issued, long before now." See concurring opinion, slip op. at 17. We could have solicited broad input over two years ago. Having purposefully decided to limit the source of that input to the parties in this case, however, I agree that a decision could have issued long before now.

Footnote # 4 for
56 FLRA No. 18

• Opinion of Chairman Wasserman

In reality, the Authority has already modified a strict application of Montrose by not requiring a union to adhere to the meeting requirement where the bargaining unit was geographically dispersed and the holding of a special meeting was impractical. U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 33 FLRA 482 (1988), order denying motion for reconsideration and related motions and requests, 34 FLRA 428, order denying motion for reconsideration, 35 FLRA 99 (1990). In the case now before us, a special meeting was not held because the bargaining unit members are geographically dispersed.

Footnote # 5 for
56 FLRA No. 18

• Opinion of Chairman Wasserman

The Authority typically applies any modified frameworks or changes in its law to the cases in which the change is made and I do the same here. See, e.g., INS, 55 FLRA at 78-79; BEP, 53 FLRA at 151-57.

Footnote # 6 for
56 FLRA No. 18

• Opinion of Chairman Wasserman

A substantial period of time has elapsed since the petition was filed following the vote among the membership. As a general matter, employees who are dissatisfied with their exclusive representative have several choices under the Statute to rectify that situation. For example, an election may be held among competing unions during an appropriate "window period," the employees may seek to decertify their existing exclusive representative, or they may seek to change their affiliation, in a manner described above. I do not comment here on the appropriateness of any of those choices for the employees in this case but simply wish to note their availability.