10:0298(54)CU - Navy, Concord Naval Weapons Station, Concord, CA and AFGE Local 1931 -- 1982 FLRAdec RP



[ v10 p298 ]
10:0298(54)CU
The decision of the Authority follows:


 10 FLRA No. 54
 
 DEPARTMENT OF THE NAVY
 CONCORD NAVAL WEAPONS STATION
 CONCORD, CALIFORNIA
 Activity/Petitioner
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1931, AFL-CIO
 Labor Organization
 
                                            Case No. 9-CU-27
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    UPON A PETITION DULY FILED UNDER SECTION 7111(B)(2) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), A HEARING WAS
 HELD BEFORE A HEARING OFFICER OF THE AUTHORITY.  THE HEARING OFFICER'S
 RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE
 HEREBY AFFIRMED.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE BRIEFS
 FILED BY THE PARTIES, THE AUTHORITY FINDS:  THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 1931, AFL-CIO (AFGE) IS RECOGNIZED BY THE
 ACTIVITY AS THE EXCLUSIVE REPRESENTATIVE OF "ALL CAREER, CAREER
 CONDITIONAL, TAPER AND TERM EMPLOYEES WITH REGULARLY SCHEDULED WORK
 WEEKS IN THE (1) GRADED EMPLOYEES UNIT (2) UNGRADED EMPLOYEES UNIT AND
 (3) FIREFIGHTER UNIT.  EXCLUDED FROM THE UNITS ARE ALL MANAGERIAL
 OFFICIALS, SUPERVISORY AND PROFESSIONAL EMPLOYEES, AS DEFINED BY THE
 INELIGIBLE LIST PROVIDED BY THE CIVILIAN PERSONNEL DEPARTMENT, TEMPORARY
 EMPLOYEES, AND INTERMITTENT EMPLOYEES."
 
    ESSENTIALLY, THE ACTIVITY'S AMENDED PETITION SEEKS A DETERMINATION
 THAT THE INCUMBENTS OF FIVE MOBILE AMMUNITION EVALUATION AND
 RECONDITIONING UNIT (MAERU) POSITIONS /1/ SHOULD BE EXCLUDED FROM AFGE'S
 BARGAINING UNIT.  THE ACTIVITY TAKES THE PETITION THAT THE DISPUTED
 MAERU POSITIONS, WHETHER ENCUMBERED BY THE ACTIVITY'S EMPLOYEES OR
 EMPLOYEES FROM OTHER DEPARTMENT OF DEFENSE COMPONENTS, HAVE NEVER BEEN
 AND SHOULD NOT BE CONSIDERED A PART OF AFGE'S EXCLUSIVELY RECOGNIZED
 UNIT AS THEY DO NOT SHARE A COMMUNITY OF INTEREST WITH OTHER EMPLOYEES
 IN THE UNIT AND THEIR INCLUSION WOULD NOT PROMOTE EFFECTIVE DEALINGS OR
 EFFICIENCY OF AGENCY OPERATIONS.  ON THE OTHER HAND, AFGE CONTENDS ONLY
 THAT THE DISPUTED MAERU POSITIONS ARE WITHIN ITS EXCLUSIVELY RECOGNIZED
 UNIT BECAUSE THE ACTIVITY SUPERVISES AND SERVICES SUCH EMPLOYEES AND HAS
 ULTIMATE RESPONSIBILITY FOR THE PROGRAM IN WHICH THEY PARTICIPATE.
 
    THE RECORD INDICATES THAT THE INCUMBENTS IN THE FIVE DISPUTED MAERU
 POSITIONS WORK IN A SPECIAL PROGRAM ADMINISTERED BY THE ACTIVITY'S
 COMMANDING OFFICER, WHICH PROGRAM IS DESIGNED TO EVALUATE AND RENOVATE
 NAVY AND MARINE CORPS AMMUNITION AT ALLIED AND NATO STORAGE LOCATIONS
 OVERSEAS.  IN THIS REGARD, AND UNLIKE OTHER EMPLOYEES, THOSE EMPLOYEES
 CHOSEN FOR MAERU DUTY ABROAD WORK IN TEAMS WITH LITTLE OR NO
 SUPERVISION;  OPERATE ON SHIFTS OF TEN HOURS A DAY, SIX DAYS A WEEK;
 STAY ABROAD ANYWHERE FROM FOUR TO SIX MONTHS;  RECEIVE SPECIAL HAZARD,
 OVERTIME AND PER DIEM PAY;  ARE EXEMPT FROM FAIR LABOR STANDARDS ACT
 COVERAGE;  ARE SUBJECT TO VARIOUS HOST COUNTRY SAFETY AND HEALTH
 REGULATIONS;  AND, IF INVOLVED IN DISCIPLINARY MATTERS ABROAD, ARE SENT
 BACK TO THE CONTINENTAL U.S. AND THEIR OVERSEAS ASSIGNMENTS ARE
 TERMINATED.  IN THIS LATTER REGARD, IT IS UNDISPUTED THAT A HOST COUNTRY
 CAN INITIATE AND EFFECTIVELY RECOMMEND SUCH DISCIPLINARY ACTION AGAINST
 MAERU PERSONNEL.  THE RECORD ALSO INDICATES THAT RECRUITMENT FOR THE
 MAERU POSITIONS HEREIN DIFFERS GREATLY FROM THAT OF OTHER POSITIONS IN
 THAT SELECTION BOARDS AND PERSONAL INTERVIEWS ARE NOT UTILIZED;  RATHER,
 RECRUITMENT IS NATIONAL IN SCOPE, UTILIZING UPDATED REGISTERS OF
 QUALIFIED PERSONNEL EMPLOYED BY A NUMBER OF DEPARTMENT OF DEFENSE (DOD)
 FACILITIES.  MOREOVER, MAERU POSITIONS ARE FILLED ONLY WHEN OVERSEAS
 WORK IS AVAILABLE AND EMPLOYEES SELECTED FOR SERVICE ARE GUARANTEED A
 RETURN TO THEIR FORMER POSITIONS WITHIN THE DOD FACILITIES FROM WHICH
 THEY WERE SELECTED.  ADDITIONALLY, THE RECORD INDICATES THAT, IN THE
 LAST FIVE YEARS, CLOSE TO HALF OF ALL MAERU POSITIONS HAVE BEEN FILLED
 BY EMPLOYEES FROM DOD FACILITIES OTHER THAN THE ACTIVITY.  FURTHER, THE
 MAERU POSITIONS AT ISSUE HEREIN ARE OCCASIONALLY FILLED BY INDIVIDUALS
 WHO ARE CLEARLY OUTSIDE AFGE'S EXCLUSIVELY RECOGNIZED UNIT, NAMELY
 SUPERVISORS, FOREMEN AND PROFESSIONAL EMPLOYEES.
 
    WHILE THE RECORD IS UNCLEAR AS TO THE REPRESENTATION AFFORDED
 INCUMBENTS IN THE DISPUTED MAERU POSITIONS BY AFGE, IT APPEARS THAT AFGE
 DOES NOT ROUTINELY ASSIGN STEWARDS TO SUCH EMPLOYEES, AND NO EVIDENCE
 WAS PRESENTED AT THE HEARING TO SHOW THAT THE PARTIES INTENDED TO
 INCLUDE SUCH MAERU POSITIONS WITHIN THE COVERAGE OF THEIR PREVIOUS
 NEGOTIATED AGREEMENTS.
 
    ACCORDINGLY, BASED UPON THE FOREGOING, THE AUTHORITY CONCLUDES,
 PURSUANT TO THE REQUIREMENTS OF SECTION 7112(A)(1) OF THE STATUTE, THAT
 THE INCUMBENTS IN THE FIVE MAERU POSITIONS IN DISPUTE DO NOT SHARE A
 COMMUNITY OF INTEREST WITH OTHER EMPLOYEES IN VIEW OF THEIR UNIQUE
 CONDITIONS OF EMPLOYMENT AS SET FORTH ABOVE, AND THAT IT WOULD NOT
 PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS TO INCLUDE
 THEM IN THE UNIT FOR WHICH AFGE IS RECOGNIZED.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
 WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1931,
 AFL-CIO, HOLDS EXCLUSIVE RECOGNITION, BE, AND IT HEREBY IS, CLARIFIED BY
 EXCLUDING FROM SAID UNIT THE FOLLOWING MOBILE AMMUNITION EVALUATION
 RECONDITIONING UNIT POSITIONS:  SHOP PLANNER/EXPLOSIVES OPERATOR, WD-0