Federal Law Enforcement Training Center (Activity) and American Federation of Government Employees, Local 2002 (Petitioner) 



[ v04 p91 ]
04:0091(14)RO
The decision of the Authority follows:


 4 FLRA No. 14
 
 FEDERAL LAW ENFORCEMENT
 TRAINING CENTER
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2002
 Petitioner
 
                                            Case No. 4-RO-29
 
                            DECISION AND ORDER
 
    UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
 UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C.  7101-7135, A HEARING WAS HELD BEFORE A
 HEARING OFFICER OF THE AUTHORITY.  THE AUTHORITY HAS REVIEWED THE
 HEARING OFFICER'S RULINGS MADE AT THE HEARING AND FINDS THAT THEY ARE
 FREE FROM PREJUDICAL ERROR.  THE RULINGS ARE HEREBY AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
 ACTIVITY, THE AUTHORITY FINDS:  THE PETITIONER, THE AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 2002 (AFGE), SEEKS AN ELECTION IN A UNIT
 COMPOSED OF ALL "ROTATIONAL" AND "DETAILED" INSTRUCTORS EMPLOYED BY THE
 ACTIVITY.  IN THE ALTERNATIVE, THE AFGE STATES THAT IF A UNIT OF ONLY
 ROTATIONAL INSTRUCTORS IS FOUND APPROPRIATE, IT WILL PROCEED TO AN
 ELECTION IN SUCH UNIT.  THE ACTIVITY CONTENDS THE UNIT IS NOT
 APPROPRIATE SINCE EMPLOYEES DO NOT SHARE A CLEAR AND IDENTIFIABLE
 COMMUNITY OF INTEREST AND THE UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS
 OR EFFICIENCY OF OPERATIONS.  THE ACTIVITY FURTHER CONTENDS THE DETAILED
 INSTRUCTORS ARE NOT EMPLOYEES OF THE ACTIVITY BUT CONTINUE TO BE
 EMPLOYEES OF THEIR PARTICIPATING AGENCIES AND THE NUMEROUS ROTATIONAL
 AND DETAILED INSTRUCTORS ARE PRECLUDED FROM COVERAGE UNDER THE STATUTE
 BY EXECUTIVE ORDER 12171 OR ALTERNATIVELY, THEY ARE EMPLOYEES OF A
 LEGISLATIVE DEPARTMENT NOT COVERED BY THE STATUTE.
 
    THE ACTIVITY'S MISSION IS TO SERVE AS A GOVERNMENT-WIDE INTER-AGENCY
 TRAINING FACILITY FOR FEDERAL LAW ENFORCEMENT AGENCIES.  THE ACTIVITY IS
 LOCATED AT THE FORMER GLYNCO NAVAL AIR STATION, NEAR BRUNSWICK, GEORGIA.
  IN ACCOMPLISHING ITS MISSION, THE ACTIVITY PROVIDES FACILITIES,
 EQUIPMENT, AND SUPPORT SERVICES NECESSARY FOR CONDUCTING, BASIC,
 ADVANCED, SPECIALIZED, AND REFRESHER TRAINING FOR FEDERAL LAW
 ENFORCEMENT PERSONNEL ATTENDING COURSES AT THE ACTIVITY.  THE ACTIVITY
 HAS 15 MEMBER AGENCIES AND 36 PARTICIPATING ORGANIZATIONS AND 14 OF
 THESE ORGANIZATIONS CURRENTLY HAVE EMPLOYEES DETAILED OR ROTATED TO THE
 ACTIVITY.  THE ACTIVITY HAS 10 ROTATIONAL INSTRUCTORS FROM THESE
 AGENCIES AND 32 INSTRUCTORS ON TEMPORARY DETAIL.  THE ACTIVITY CURRENTLY
 HAS A STAFF OF 287 TEMPORARY AND PERMANENT EMPLOYEES, INCLUDING 47
 PERMANENT INSTRUCTORS.
 
    THE AFGE REPRESENTS THE PERMANENT EMPLOYEES OF THE ACTIVITY IN TWO
 UNITS:  ON JULY 27, 1976, AFGE WAS CERTIFIED AS THE EXCLUSIVE
 REPRESENTATIVE OF A BARGAINING UNIT COMPRISED OF ALL EMPLOYEES EMPLOYED
 BY AND LOCATED AT THE ACTIVITY EXCLUDING ALL MANAGEMENT OFFICIALS,
 PROFESSIONAL EMPLOYEES, INSTRUCTORS, CONFIDENTIAL EMPLOYEES, TEMPORARY
 EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
 CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED BY EXECUTIVE ORDER 11491,
 AS AMENDED.  ON AUGUST 18, 1978, AFGE WAS CERTIFIED AS THE EXCLUSIVE
 REPRESENTATIVE OF A UNIT COMPRISED OF ALL INSTRUCTORS PERMANENTLY
 ASSIGNED TO THE ACTIVITY EXCLUDING MANAGEMENT OFFICIALS, PROFESSIONAL
 EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
 CLERICAL CAPACITY, EMPLOYEES IN AN ALREADY RECOGNIZED UNIT, INSTRUCTORS
 ASSIGNED ON A ROTATIONAL BASIS, AND SUPERVISORS AS DEFINED IN EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    THE ACTIVITY OPERATES UNDER THE DIRECTION OF A CENTER DIRECTOR.
 THERE IS ALSO IN EXISTEN-E A BOARD OF DIRECTORS, CONSISTING OF
 REPRESENTATIVES FROM THE INTER-AGENCY LAW ENFORCEMENT COMMUNITY, WHICH
 HAS FINAL AUTHORITY OVER TRAINING POLICY, TRAINING PROGRAMS, TRAINING
 CRITERIA AND TRAINING STANDARDS OF THE ACTIVITY, AND FOR RESOLVING
 MATTERS OF CONFLICTING TRAINING REQUIREMENTS.  THE OFFICE OF THE
 DIRECTOR INCLUDES A DEPUTY DIRECTOR AND A SPECIAL STAFF.  THERE ARE ALSO
 THREE ASSISTANT DIRECTORS RESPONSIBLE FOR THE OFFICE OF RESOURCE
 MANAGEMENT, THE OFFICE OF PROGRAM MANAGEMENT, AND THE OFFICE OF FACULTY
 MANAGEMENT.  THE OFFICE OF FACULTY MANAGEMENT IS RESPONSIBLE FOR
 PLANNING, COORDINATING AND DIRECTING THE FACILITY IN SUPPORT OF ALL
 TRAINING PROGRAMS, AND IT IS DIVIDED INTO TWO FUNCTIONAL DIVISIONS;  THE
 POLICE INVESTIGATION DIVISION, AND THE SPECIAL TRAINING DIVISION.  THE
 EMPLOYEES IN THE PETITIONED-FOR UNIT ARE FOUND IN THE OFFICE OF FACULTY
 MANAGEMENT.
 
    ROTATIONAL INSTRUCTORS ARE RECRUITED BY A PARTICIPATING AGENCY,
 THROUGH THAT AGENCY'S MERIT PROMOTION PLAN, FOR A TWO OR THREE YEAR TOUR
 OF DUTY.  THE PARTICIPATING AGENCY RANKS THE APPLICANTS AND FURNISHES
 THE ACTIVITY WITH A CERTIFICATE OF ELIGIBLES.  THE ACTIVITY CONDUCTS
 INTERVIEWS AND SELECTS AN APPLICANT FROM THE LIST.  DURING THEIR TOUR OF
 DUTY AT THE ACTIVITY, THESE INDIVIDUALS ARE PAID BY THE ACTIVITY, THEIR
 OFFICIAL PERSONNEL FOLDER AND THEIR TIME AND ATTENDANCE, ARE MAINTAINED
 BY THE ACTIVITY, AND THEY HAVE ACCESS TO THE ACTIVITY'S GRIEVANCE
 PROCEDURES.  THEY RECEIVE A PERFORMANCE EVALUATION FROM THEIR SUPERVISOR
 THAT GOES INTO THEIR PERSONNEL FILE.  ON THE OTHER HAND, THE ROTATIONAL
 INSTRUCTORS CONTINUE TO BE COVERED UNDER THEIR PARENT AGENCY'S
 REGULATIONS IN THE AREAS OF PROMOTION, DISCIPLINE AND CAREER
 DEVELOPMENT.  IN ADDITION, THE ROTATIONAL INSTRUCTORS ARE NOT CONSIDERED
 TO BE WITHIN THE COMPETITIVE AREA USED BY THE ACTIVITY FOR CONDUCTING A
 REDUCTION-IN-FORCE.  UNLIKE THE DETAILED INSTRUCTORS, ROTATIONAL
 INSTRUCTORS MUST, AFTER THEIR TOUR OF DUTY IS COMPLETED, RETURN TO THEIR
 PARENT AGENCY;  THEY CANNOT CONTINUE AS ROTATIONAL INSTRUCTORS AT THE
 ACTIVITY FOR AN INDEFINITE PERIOD.
 
    DETAILED INSTRUCTORS ARE RECRUITED BY A PARTICIPATING AGENCY THROUGH
 THAT AGENCY'S MERIT PROMOTION PLAN.  THE RECRUITING AGENCY RANKS THE
 APPLICANTS AND REFERS THE SUCCESSFUL APPLICANT TO THE ACTIVITY, WHICH
 MUST CONCUR IN THE SELECTION.  THE RECORD DISCLOSES THERE IS NO TIME
 LIMIT ON THE DURATION OF DETAILS, AND IN SOME INSTANCES, IT APPEARS
 DETAILED INSTRUCTORS CAN REMAIN ON DETAIL AS LONG AS THEY DESIRE.
 
    THERE ARE TWO TYPES OF DETAILED INSTRUCTORS;  REIMBURSABLE AND
 NON-REIMBURSABLE.  IN THE CASE OF THE REIMBURSABLE DETAILED INSTRUCTORS,
 THE ACTIVITY REIMBURSES THE PARENT AGENCY FOR THE COSTS ASSOCIATED WITH
 THE DETAIL.  WHILE THE RECORD DISCLOSES DETAILED INSTRUCTORS SHARE
 CERTAIN COMMON WORKING CONDITIONS, SUCH AS MISSION, DAY-TO-DAY
 SUPERVISION AND WORK ASSIGNMENTS IN A COMMON ENVIRONMENT, DETAILED
 INSTRUCTORS ARE SERVICED BY THE PERSONNEL AND PAYROLL SECTIONS OF THEIR
 PARENT AGENCIES AND ALL DISCRETION AFFECTING SUCH MATTERS AS PAY, LEAVE
 AND PAY DATA, REDUCTION-IN-FORCE, MERIT PROMOTION, CAREER LADDER, CAREER
 DEVELOPMENT, AND DISCIPLINE REST SOLELY WITH THE PARENT AGENCIES.
 ALTHOUGH DETAILED INSTRUCTORS RECEIVE A YEARLY EVALUATION FROM THE
 ACTIVITY, IN MOST INSTANCES ON THE FORMS PROVIDED BY THE AGENCIES, THE
 PARTICIPATING AGENCIES DO NOT HAVE TO ACCEPT THE EVALUATION IF THEY DO
 NOT AGREE WITH IT.  IF A DETAILED INSTRUCTOR HAS A GRIEVANCE, HE MAY
 FILE ONLY AN INFORMAL GRIEVANCE WITH THE ACTIVITY.  IF THE MATTER IS NOT
 HANDLED TO THE INSTRUCTORS' SATISFACTION, HE MUST FILE A FORMAL
 GRIEVANCE WITH HIS PARENT AGENCY;  HE CANNOT USE THE FORMAL GRIEVANCE
 PROCEDURE OF THE ACTIVITY SINCE HE IS NOT CONSIDERED TO BE AN EMPLOYEE
 OF THE ACTIVITY.  IF HIS GRIEVANCE IS FOUND VALID BY HIS PARENT AGENCY,
 SUCH DECISION IS NOT BINDING ON THE ACTIVITY.
 
    THE VARIOUS DETAILED AND ROTATIONAL INSTRUCTORS ARE COVERED BY
 DIFFERENT PAY SCHEDULES, LEAVE POLICIES, AND PROGRAM RESPONSIBILITIES.
 FOR EXAMPLE, THE U.S. PARK POLICE ARE GOVERNED BY THE DISTRICT OF
 COLUMBIA POLICE AND FIREMAN'S SALARY ACT OF 1958, WHICH HAS NO
 APPLICATION TO OTHER EMPLOYEES INVOLVED HEREIN.  DETAILED INSTRUCTORS
 MAY BE RECALLED TO PERFORM DUTIES FOR THEIR PARENT AGENCIES WHILE
 WORKING AT THE ACTIVITY.  FOR EXAMPLE, THE DETAILED INSTRUCTORS FROM THE
 IMMIGRATION AND NATURALIZATION SERVICE (INS) ARE OFTEN CALLED BACK TO
 EITHER OF THEIR ACADEMIES, THE BORDER PATROL ACADEMY OR THE IMMIGRATION
 OFFICER ACADEMY, TO ASSIST THOSE ACADEMIES IN INSTRUCTING STUDENTS.
 THESE INSTRUCTORS ALSO RECEIVE CORRESPONDENCE FROM THE INS WHILE THEY
 ARE AT THE ACTIVITY, INCLUDING A WEEKLY UPDATE ON THEIR LAW BOOKS ON
 IMMIGRATION LAWS WHICH THEY ARE REQUIRED TO KEEP WHILE THEY ARE ON
 DETAIL.  A SECOND EXAMPLE INVOLVES THE INSTRUCTORS ON DETAIL FROM THE
 U.S. PARK POLICE, WHO HAVE ALSO BEEN CALLED BACK TO THEIR DUTY STATIONS
 IN EMERGENCY SITUATIONS.
 
    SOME OF THE DETAILED AND ROTATIONAL INSTRUCTORS ARE NOT ELIGIBLE TO
 BE REPRESENTED BY A LABOR ORGANIZATION BECAUSE THEY ARE EMPLOYED BY
 AGENCIES WHICH ARE EXCLUDED FROM COVERAGE UNDER THE STATUTE BY EXECUTIVE
 ORDER 12171.  THIS INCLUDES, AMONG OTHERS, INSTRUCTORS FROM THE U.S.
 SECRET SERVICE, THE CRIMINAL INVESTIGATIONS DIVISION OF THE INTERNAL
 REVENUE SERVICE, THE OFFICE OF CRIMINAL ENFORCEMENT OF THE BUREAU OF
 ALCOHOL, TOBACCO, AND FIREARMS, AND THE OFFICE OF INVESTIGATIONS OF THE
 U.S. CUSTOMS SERVICE.  IN ADDITION, THE U.S.  CAPITAL POLICE WOULD ALSO
 BE EXCLUDED FROM COVERAGE UNDER THE STATUTE BECAUSE THEY ARE EMPLOYEES
 OF THE LEGISLATIVE BRANCH.  THE RECORD ALSO INDICATES THAT CERTAIN OF
 THE DETAILED INSTRUCTORS WOULD BE EXCLUDED AS BEING SUPERVISORS;  THIS
 INCLUDES, AMONG OTHERS, DETAILED INSTRUCTORS FROM THE PARK POLICE WHO
 ARE SERGEANTS AND LIEUTENANTS AND CONSIDERED TO BE SUPERVISORS BY THEIR
 PARENT AGENCY.  THE RECORD ALSO INDICATES THAT NUMEROUS DETAILED AND
 ROTATIONAL INSTRUCTORS COME FROM UNITS WITHIN THEIR PARTICIPATING
 AGENCIES ALREADY REPRESENTED BY OTHER LABOR ORGANIZATIONS.  THE DETAILED
 AND ROTATIONAL INSTRUCTORS FROM THE GENERAL SERVICES ADMINISTRATION ARE
 INCLUDED UNDER TWO UNITS REPRESENTED BY THE NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCALS 1776 AND 1896.  THE ROTATIONAL AND DETAILED
 INSTRUCTORS FROM THE INS ARE EXCLUSIVELY REPRESENTED BY A LOCAL OF THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AND THE U.S. MARSHALLS ARE
 REPRESENTED IN A WORLD-WIDE UNIT BY A LOCAL OF THE AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES.
 
    THE RECORD INDICATES THE INSTRUCTORS DO SHARE SIMILAR WORKING
 CONDITIONS AT THE ACTIVITY, INCLUDING COMMON DAY-TO-DAY SUPERVISION AND
 WORK ASSIGNMENTS.  ROTATIONAL AND DETAILED INSTRUCTORS CAN APPLY FOR
 PERMANENT EMPLOYMENT BY THE ACTIVITY BY FILING APPLICATIONS WITHIN THE
 ACTIVITY'S MERIT PROMOTION PLAN AND ELEVEN OF THE LAST 32 PERMANENT
 SLOTS WERE FILLED BY ROTATIONAL OR DETAILED INSTRUCTORS.
 
    BASED ON ALL THE ABOVE CIRCUMSTANCES, THE AUTHORITY FINDS THAT
 NEITHER THE PETITIONED-FOR UNIT, CONSISTING OF ALL ROTATIONAL AND
 DETAILED INSTRUCTORS, NOR THE AFGE'S ALTERNATIVE UNIT, CONSISTING ONLY
 OF ROTATIONAL INSTRUCTORS, ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
 RECOGNITION UNDER THE STATUTE, BECAUSE THE EMPLOYEES IN SUCH UNITS DO
 NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST, NOR WOULD SUCH
 UNITS PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
 
    ALTHOUGH THE EMPLOYEES IN THE PETITIONED-FOR, AND ALTERNATIVE UNITS
 ENJOY CERTAIN COMMONALITY OF WORKING CONDITIONS, THE RECORD INDICATES
 THEY ARE NOT EMPLOYEES OF THE ACTIVITY BUT REMAIN EMPLOYEES OF THEIR
 PARTICIPATING AGENCY AND, CONSEQUENTLY, DO NOT SHARE A CLEAR AND
 IDENTIFIABLE COMMUNITY OF INTEREST.  THUS, AS NOTED ABOVE WITH REGARD TO
 THE ROTATIONAL INSTRUCTORS, THESE EMPLOYEES ARE SENT TO THE ACTIVITY FOR
 A TEMPORARY TOUR OF DUTY, AFTER WHICH THEY RETURN TO THEIR PARENT AGENCY
 AND THEREFORE DO NOT HAVE A REASONABLE EXPECTANCY FOR CONTINUED
 EMPLOYMENT BY THE ACTIVITY.  FURTHER, THEIR PARENT AGENCY RETAINS FULL
 DISCRETION AND AUTHORITY OVER THE ROTATIONAL INSTRUCTORS WITH RESPECT TO
 CAREER DEVELOPMENT, PROMOTION, AND DISCIPLINE, AND THE ROTATIONAL
 INSTRUCTORS REMAIN IN THE COMPETITIVE AREAS ESTABLISHED BY THEIR
 RESPECTIVE PARENT AGENCY FOR PURPOSES OF REDUCTION-IN-FORCE.  SIMILARLY
 WITH REGARD TO THE DETAILED INSTRUCTORS, THEIR RESPECTIVE PARENT AGENCY
 RETAINS FULL AUTHORITY AND DISCRETION WITH REGARD TO PERSONNEL, PAYROLL,
 REDUCTION-IN-FORCE, PROMOTION, CAREER DEVELOPMENT AND DISCIPLINE
 MATTERS.  MOREOVER,