[ v16 p429 ]
16:0429(67)RO
The decision of the Authority follows:
16 FLRA No. 67
LIBRARY OF CONGRESS
Agency
and
FRATERNAL ORDER OF POLICE
LIBRARY OF CONGRESS POLICE
FORCE LABOR COMMITTEE
Petitioner
and
AMERICAN FEDERATION OF STATE
COUNTY AND MUNICIPAL EMPLOYEES
LOCAL, 2477, AFL-CIO
Intervenor
Case No. 3-RO-40001
DECISION GRANTING APPLICATION FOR REVIEW AND ORDER
On September 14, 1984, the American Federation of State, County and
Municipal Employees, Local 2477, AFL-CIO (Intervenor) filed a timely
application for review, pursuant to section 2422.17(a) of the
Authority's Rules and Regulations, seeking to set aside the Acting
Regional Director's Decision and Direction of Election in the
above-named case. In support thereof, the Intervenor contends that
compelling reasons exist for granting its application within the meaning
of section 2422.17(c) of the Authority's Rules and Regulations. /1/ The
Fraternal Order of Police, Library of Congress Police Force Labor
Committee (Petitioner) filed an opposition to the application for
review.
Upon consideration of the Intervenor's application for review,
including the arguments in support thereof, it appears to the Authority
that a compelling reason exists for granting the application for review.
More specifically, it appears that a substantial question of law or
policy is raised because of a departure from Authority precedent.
Accordingly, pursuant to section 2422.17(g) of the Authority's Rules and
Regulations, the application for review is granted and the Authority
will consider herein the issue raised by the application for review.
The Petitioner seeks to represent a unit of all full and regular
part-time uniformed special police officers (SPOs) of the Library of
Congress Police Force below the rank of sergeant. Since 1976, these
employees have been part of a unit of nonprofessional employees of the
Library of Congress exclusively represented by the Intervenor. The
Intervenor contends that the unit sought by the Petitioner is
inappropriate and would result in an unnecessary fragmentation of the
existing unit.
In his Decision and Direction of Election, the Acting Regional
Director concluded that both the broader established Activity-wide unit
represented by the Intervenor and the smaller petitioned for unit of
SPOs are appropriate. In finding the broader established unit including
the SPOs to be appropriate, the Acting Regional Director noted
particularly: The SPOs share common agency personnel regulations and a
community of interest with other unit employees; the SPOs are included
in an agency-wide competitive area for merit promotions and
reductions-in-force; and they have been part of a long-established
bargaining unit. Further, he found that the SPOs have been officers and
members of the Intervenor's negotiating team and, as a group, have been
fairly represented pursuant to a collective bargaining agreement as well
as in their grievances filed under the negotiated grievance procedure
contained therein. The Acting Regional Director further found, based
upon certain evidence presented and reliance upon the rationale
contained in Department of the Navy, Naval Station, Norfolk, Virginia,
14 FLRA No. 93 (1984) and Panama Canal Commission, 5 FLRA 104 (1981),
that the SPOs may also constitute a separate appropriate unit. In this
regard, the Acting Regional Director noted that the SPOs are subject to
certain working conditions different from other bargaining unit
employees, such as: 24 hour shift schedules; uniforms and firearms
requirements; special training; and different reduction-in-force and
arbitration procedures for SPOs than those contained in the overall
unit's "master" agreement. Additionally, the Acting Regional Director
concluded that, by virtue of a separate collective bargaining agreement
for SPOs, the latter have maintained a separate identity and that the
Activity and Intervenor have treated them as a group separate and
distinct from the other bargaining unit employees. Accordingly, the
Acting Regional Director ordered an election to afford the petitioned
for employees the opportunity to choose whether they wish to continue
being part of the existing nonprofessional unit represented by the
Intervenor, to be represented by the Petitioner in the smaller SPOs
unit, or not to be represented at all.
Based on established precedent, and the particular circumstances of
this case, the Authority disagrees, in part, with the Acting Regional
Director's Decision and Direction of Election. The petition herein is
seeking to carve out or sever from the established Activity-wide unit
represented by the Intervenor a much smaller unit of SPOs. In Office of
Hearing and Appeals, Social Security Administration, Case No.
3-RO-20005, FLRA Report of Case Decisions, No. 268 (Nov. 9, 1984); U.S.
Coast Guard Air Station Cape Cod, Otis Air Force Base, Pocasset,
Massachusetts, 10 FLRA 543 (1982); and Department of the Navy, Naval
Air Station, Moffett Field, California, 8 FLRA 10 )1982), in which the
Authority addressed similar severance issues under the Statute, it was
concluded that there existed no unusual circumstances, such as the
failure of the incumbent exclusive representative to fairly represent
the employees sought, which would give rise to a question of
representation concerning the petitioned for unit and justify severance
from the existing larger units which continued to remain appropriate.
In view of the above determination, the Authority found it unnecessary
to and did not consider the appropriateness of the petitioned for
smaller units. That is, where, as here, an established bargaining unit
continues to be appropriate and no unusual circumstances are presented,
a petition seeking to remove certain employees from the overall unit and
to separately represent them must be dismissed, in the interest of
reducing the potential for unit fragmentation and thereby promoting
effective dealings and efficiency of agency operations. See section
7112(a)(1) of the Federal Service Labor-Management Relations Statute.
The case decisions cited by the Acting Regional Director in support
of his Decision are inapposite since they involve representation
petitions concerning unrepresented employees, rather than the requested
severance of a group of employees from an established exclusively
represented unit. In Panama Canal Commission, the Authority, on the
facts presented, found that an unrepresented group of firefighters could
constitute a separate appropriate unit or properly could be included as
part of the established Activity-wide unit. Similarly, in Department of
the Navy, Naval Station, Norfolk, Virginia, the Authority found that
unrepresented firefighters and fire prevention employees who had been
transferred into the Activity from another facility might be included in
the Activity-wide unit or constitute a separate appropriate unit.
The record establishes that the Activity-wide unit currently
represented by the Intervenor is appropriate as all of the unit
employees, including the SPOs, share a community of interest and that
such unit promotes effective dealings and efficiency of agency
operations. Thus, all of the unit employees share a common mission, are
subject to the same competitive area for merit promotions and
reductions-in-force, and have been part of a long-established bargaining
unit. Furthermore, the record establishes that the SPOs have been fully
represented in the established unit and have been covered by a
modification to the "master" collective bargaining agreement pertaining
specifically to them. Contrary to the Acting Regional Director, the
Authority finds that this collective bargaining agreement was not
intended to separate the SPOs from other unit employees, but rather to
specifically deal with their unique problems and give the SPOs the best
possible representation. In this regard, the Authority notes that this
agreement was considered by the parties as a modification to the
"master" agreement /3/ from which it drew 90% of its contents and that
it was intended to run concurrently with the "master" agreement.
Moreover, in agreement with the Intervenor, it is concluded that
effective dealings with, and efficiency of the operations of, the
Activity will be promoted by avoiding unnecessary fragmentation.
Thus, in finding that the long-established bargaining unit remains
appropriate and that no unusual circumstances are present to justify the
severance of the petitioned for employees from the established
bargaining unit, the Authority concludes that the petitioned for unit
does not raise a question concerning representation and that no election
is warranted. Accordingly, the Authority concludes that the Acting
Regional Director's Decision and Direction of Election must be set aside
to the extent inconsistent herewith, and that the instant petition must
be dismissed.
ORDER
IT IS ORDERED that the petition in Case No. 3-RO-40001 be, and it
hereby is, dismissed. Issued, Washington, D.C., November 13, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 2422.17(c) provides:
(c) The Authority may grant an application for review only
where it appears that compelling reasons exist therefor.
Accordingly, an application for review may be granted only upon
one or more of the following grounds:
(1) That a substantial question of law or policy is raised
because of (i) the absence of, or (ii) a departure from, Authority
precedent;
(2) That there are extraordinary circumstances warranting
reconsideration of an Authority policy;
(3) That the conduct of the hearing held or any ruling made in
connection with the proceeding has resulted in prejudicial error;
or
(4) That the Regional Director's decision on a substantial
factual issue is clearly erroneous and such error prejudicially
affects the rights of a party.
/2/ It is clear from the record that such a request was not initiated
as a result of an agency reorganization or other administrative action
which left the status of the petitioned for employees in dispute.
/3/ Article I, Section 5 of the collective bargaining agreement
covering the Special Police states:
This agreement is issued as a modification to the 'master'
agreement executed by the Parties on June 14, 1978. Rights and
obligations incurred and accrued by the Parties under the terms
and conditions of that Agreement are not altered or modified by
the terms and conditions of this Agreement, except as provided
herein. Subject to the applicability to the Special Police any
subsequent changes in the terms and conditions of the 'master'
agreement should be incorporated into this agreement.