16:0396(64)NG - AFGE Local 1285 and Air Force, HQ 1606th Air Base Wing (MAC), Kirtland AFB, NM -- 1984 FLRAdec NG



[ v16 p396 ]
16:0396(64)NG
The decision of the Authority follows:


 16 FLRA No. 64
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1285
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE,
 HEADQUARTERS 1606TH AIR BASE
 WING (MAC), KIRTLAND AIR FORCE
 BASE, NEW MEXICO
 Activity
 
                                            Case No. O-NG-1053
 
                   ORDER DISMISSING PETITION FOR REVIEW
 
    This case is before the Authority pursuant to section 7105(a)(2)(E)
 of the Federal Service Labor-Management Relations Statute on a petition
 for review of negotiability issues filed by the Union.
 
    From the submissions of the parties, the record before the Authority
 in this case indicates that during the course of negotiations, the Union
 submitted several proposals concerning employee training on the
 Activity's new appraisal and promotion system.  Apparently, the Activity
 orally declared the Union's proposals to be nonnegotiable, but did not
 respond to the Union's written request for an allegation of
 nonnegotiability.  The Union filed the instant petition for review with
 the Authority pursuant to section 2424.3 of the Authority's Rules and
 Regulations, as to whether the disputed proposals were within the duty
 to bargain.  Subsequently in a letter to the Authority dated October 4,
 1984, the Agency withdrew the Activity's allegation of nonnegotiability.
 
    Since the Agency has withdrawn the allegation of nonnegotiability
 concerning the Union's proposals, there is no longer an issue as to
 whether the proposals in this case are within the parties' duty to
 bargain under the Statute.
 
    Accordingly, and apart from other considerations, the petition for
 review in this case is hereby dismissed without prejudice to the Union
 refiling should the Agency reassert the proposals to be nonnegotiable.
 For the Authority.  Issued, Washington, D.C., November 8, 1984
                                       Jan K. Bohren
                                       Executive Director/Administrator
 
    ACTION EMPLOYEES UNION,
 
    AFSCME LOCAL 2017
 
                                   Union
 
    and
 
    ACTION
 
                                  Agency
                                       Case No. O-NG-1011
                                       (16 FLRA No. 11)
 
                 ORDER DENYING MOTION FOR RECONSIDERATION
 
    This case is before the Authority on a motion for reconsideration
 filed by the Union on October 11, 1984, seeking reconsideration of the
 Authority's Decision and Order of September 24, 1984.  For the reason
 set forth below, the motion must be denied.
 
    Section 2429.17 of the Authority's Rules and Regulations, effective
 September 10, 1981, provides in pertinent part:
 
          2429.17 Reconsideration.
 
          After a final decision or order of the Authority has been
       issued, a party to the proceeding before the Authority who can
       establish in its moving papers extraordinary circumstances for so
       doing, may move for reconsideration of such final decision or
       order.  The motion shall be filed within 10 days after service of
       the Authority's decision or order . . . .
 
    The Authority's Decision and Order was dated and served on the Union
 by mail on September 24, 1984.  Therefore, under section 2429.17 of the
 Authority's Rules and Regulations, and sections 2429.21 and 2429.22,
 which are also applicable to the computation of the time limit here
 involved, the Union's motion for reconsideration was due in the national
 office of the Authority before the close of business on October 9, 1984.
  Since, as indicated above, the Union's motion was not filed until
 October 11, 1984, it is clearly untimely and must be denied.
 
    Accordingly, for the reason set forth above, the Union's motion for
 reconsideration in this case is hereby denied.  For the Authority.
 Issued, Washington, D.C., October 30, 1984
                                       Jan K. Bohren
                                       Executive Director/Administrator
 
    ASSOCIATION OF CIVILIAN TECHNICIANS,
 
    PENNSYLVANIA STATE COUNCIL
 
                                   Union
 
    and
 
    PENNSYLVANIA ARMY AND
 
    AIR NATIONAL GUARD
 
                                 Activity
                                       Case No. O-NG-613
                                       14 FLRA No. 6
 
                 ORDER DENYING MOTION FOR RECONSIDERATION
 
    This case is before the Authority on a motion for reconsideration
 filed by the National Guard Bureau on behalf of the Pennsylvania Army
 and Air National Guard on March 29, 1984, seeking, in essence,
 reconsideration of the Authority's Decision and Order of February 13,
 1984 in the above entitled matter, as it relates to Union Proposal 1.
 For the reasons set forth below, the motion must be denied.
 
    Section 2429.17 of the Authority's Rules and Regulations provides in
 part, that a party "who can establish . . . extraordinary circumstances
 . . . may move for reconsideration" of a decision of the Authority.  In
 support of its motion for reconsideration, the Agency contends that the
 proposal is inconsistent with an Agency regulation and "with policies
 expressed throughout the rest of the Federal Government." However, the
 Agency did not initially assert these arguments in stating its position
 in full pursuant to section 2424.6 of the Authority's Rules and
 Regulations.  Nor was it otherwise apparent from the record that Union
 Proposal 1 was outside the Agency's bargaining obligation.  In this
 latter regard, see the discussion in American Federation of Government
 Employees Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA
 No. 98 (1984), appeal docketed sub nom. Local 32, AFGE v. FLRA, 84-1250
 (D.C. Cir. June 15, 1984), at 2 with respect to the instant case.  Thus,
 the Agency's motion is merely an effort to raise arguments which could
 have been, but were not, previously proffered in the course of the
 review proceeding.  The Authority concludes that, in light of the above,
 the National Guard Bureau has failed to establish the existence of
 extraordinary circumstances.  Accordingly, IT IS HEREBY ORDERED that the
 motion for reconsideration be, and it hereby is, denied.  Issued,
 Washington, D.C., October 31, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    OFFICE OF HEARINGS AND APPEALS
 
    SOCIAL SECURITY ADMINISTRATION
 
                                 Activity
 
    and
 
    NATIONAL TREASURY EMPLOYEES UNION
 
                       Labor Organization/Petitioner
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
                       Labor Organization/Incumbent
                                       Case No. 3-RO-20005
 
                      DECISION ON REQUEST FOR REVIEW
 
    The Petitioner's request for review seeks reversal of the Regional
 Director's dismissal of its representation petition filed with the
 Authority under section 7111 of the Federal Service Labor-Management
 Relations Statute (the Statute), in which it sought to represent a unit
 of Attorneys (series 905) who are currently a part of an existing
 consolidated bargaining unit of the Social Security Administration
 exclusively represented by the American Federation of Government
 Employees, AFL-CIO (the Incumbent).  In seeking their severance from the
 consolidated bargaining unit, the Petitioner contends that the Office of
 Hearings and Appeals Attorneys /1/ are an appropriate unit within the
 meaning of section 7112(a)(1) of the Statute, and that the Incumbent has
 failed to properly represent the petitioned for employees in the
 consolidated bargaining unit.  In support of its contention, the
 Petitioner submitted affidavits from Attorneys in the petitioned for
 unit.
 
    The Regional Director dismissed the petition, noting particularly
 that the Petitioner had submitted an insufficient showing of interest
 based on the number of employees in the consolidated bargaining unit
 and, further, that the evidence was "insufficient to support a failure
 to represent on the part of the incumbent or otherwise support the
 Petitioner's contention that the unit is no longer appropriate for
 purposes of collective bargaining."
 
    In its request for review, the Petitioner argues that the Regional
 Director applied the wrong standard in determining the adequacy of its
 showing of interest.  The Authority agrees.  The Authority finds that a
 petition which seeks to sever a unit of employees from an existing
 collective bargaining unit must be accompanied by a 30 percent showing
 of interest among the employees in the unit sought in the petition.  In
 so finding, the Authority notes that section 7111(f)(2) of the Statute
 provides in relevant part that exclusive recognition shall not be
 accorded to a labor organization "if there is not credible evidence that
 at least 30 percent of the employees in the unit specified in the
 petition wish to be represented for the purpose of collective bargaining
 by the labor organization seeking exclusive recognition(.)" /2/
 Accordingly, the Regional Director improperly based his dismissal, in
 part, on the Petitioner's insufficient showing of interest with respect
 to the overall consolidated unit.
 
    However, the Authority disagrees with the Petitioner's contention
 that the Regional Director applied an improper legal standard for
 determining whether to conduct a hearing on its petition.  Section
 7111(b)(2) of the Statute provides in pertinent part that "the Authority
 shall investigate the petition, and if it has reasonable cause to
 believe that a question of representation exists, it shall provide an
 opportunity for a hearing . . . ." In agreement with the Regional
 Director, the Authority concludes that the record contains insufficient
 evidence to support a failure to represent on the part of the Incumbent
 or otherwise to support the Petitioner's contention that the established
 unit is no longer appropriate so as to give rise to a question of
 representation concerning the petitioned-for unit.  Thus, the Authority
 finds that the Petitioner has failed to establish a reasonable cause to
 believe that a question of representation exists so as to warrant a
 notice of hearing in this matter.
 
    Accordingly, the request for review, seeking reversal of the Regional
 Director's dismissal of the subject representation petition, is hereby
 denied.  Issued, Washington, D.C., October 31, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    U.S. ARMY CORPS OF ENGINEERS
 
    LOS ANGELES DISTRICT
 
                                 Activity
 
    and
 
    NATIONAL FEDERATION OF FEDERAL
 
    EMPLOYEES
 
                                   Union
                                       Case No. O-AR-792
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Joseph F. Gentile filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    Upon careful consideration of the entire record before the Authority,
 the Authority concludes that the Union has failed to establish that the
 Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule, or regulation, or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.
 
    Accordingly, the Union's exceptions are denied.  Issued, Washington,
 D.C., October 29, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    DEPARTMENT OF HEALTH AND HUMAN
 
    SERVICE, SOCIAL SECURITY
 
    ADMINISTRATION
 
                                 Activity
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, NCSSAFOL-COUNCIL 220
 
                                   Union
                                       Case No. O-AR-811
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator John E. Sands filed by the Union under section 7122(a) of the
 Federal Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.
 
    Upon careful consideration of the entire record before the Authority,
 the Authority concludes that the Union has failed to establish that the
 Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule, or regulation, or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.
 
    Accordingly, the Union's exceptions are denied.  Issued, Washington,
 D.C., October 29, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, LOCAL 2110
 
                                   Union
 
    and
 
    VETERANS ADMINISTRATION MEDICAL
 
    CENTER, PALO ALTO, CALIFORNIA
 
                                 Activity
                                       Case No. O-AR-827
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Herbert Oestreich filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    Upon careful consideration of the entire record before the Authority,
 the Authority concludes that the Union has failed to establish that the
 Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule, or regulation, or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.
 
    Accordingly, the Union's exceptions are denied.  Issued, Washington,
 D.C., October 29, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    NATIONAL ARCHIVES AND RECORDS SERVICE,
 
    GENERAL SERVICES ADMINISTRATION
 
                                 Activity
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, LOCAL 2578
 
                                   Union
                                       Case No. O-AR-458
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Seymour Strongin filed by the Activity under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
 
    Upon careful consideration of the entire record before the Authority,
 the Authority concludes that the Activity has failed to establish that
 the Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule, or regulation, or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.
 
    Accordingly, the Activity's exceptions are denied.  Issued,
 Washington, D.C., October 30, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO, LOCAL 12
 
                                   Union
 
    and
 
    U.S. DEPARTMENT OF LABOR
 
    EMPLOYMENT TRAINING ADMINISTRATION
 
                                 Activity
                                       Case No. O-AR-477
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator James M. Harkless filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    Upon careful consideration of the entire record before the Authority,
 the Authority concludes that the Union has failed to establish that the
 Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule, or regulation, or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.
 
    Accordingly, the Union's exceptions are denied.  Issued, Washington,
 D.C., October 30, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, LOCAL 1917
 
                                   Union
 
    and
 
    UNITED STATES IMMIGRATION AND
 
    NATURALIZATION SERVICE
 
                                 Activity
                                       Case No. O-AR-525
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator George Moskowitz filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    Upon careful consideration of the entire record before the Authority,
 the Authority concludes that the Union has failed to establish that the
 Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule, or regulation, or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.
 
    Accordingly, the Union's exceptions are denied. Issued, Washington,
 D.C., October 30, 1984
                                       Henry B. Frazier, III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    LOCAL 2885, AMERICAN FEDERATION
 
    OF GOVERNMENT EMPLOYEES
 
                                   Union
 
    and
 
    U.S. ARMY, MILITARY TRAFFIC
 
    MANAGEMENT COMMAND, EASTERN AREA
 
                                 Activity
                                       Case No. O-AR-765
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Louis Yagoda filed by the Union under section 7122(a) of the
 Federal Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.
 
    Upon careful consideration of the entire record before the Authority,
 the Authority concludes that the Union has failed to establish that the
 Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule, or regulation, or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.
 
    Accordingly, the Union's exceptions are denied.  Issued, Washington,
 D.C., October 30, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, LOCAL 1482
 
                                   Union
 
    and
 
    MARINE CORPS LOGISTICS,
 
    BARSTOW, CALIFORNIA
 
                                 Activity
                                       Case No. O-AR-783
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Robert D. Steinberg filed by the Union under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
 
    Upon careful consideration of the entire record before the Authority,
 the Authority concludes that the Union has failed to establish that the
 Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule, or regulation, or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.
 
    Accordingly, the Union's exceptions are denied.  Issued, Washington,
 D.C., October 30, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, LOCAL 1904
 
                                   Union
 
    and
 
    U.S. ARMY COMMUNICATIONS ELECTRONICS
 
    COMMAND, FORT MONMOUTH, NEW JERSEY
 
                                 Activity
                                       Case No. O-AR-813
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Joseph P. Doyle filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    Upon careful consideration of the entire record before the Authority,
 the Authority concludes that the Union has failed to establish that the
 Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule, or regulation, or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.
 
    Accordingly, the Union's exceptions are denied.  Issued, Washington,
 D.C., October 30, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughto