22:0003(1)CU - DOE, Federal Energy Regulatory Commission and AFGE Local 421 -- 1986 FLRAdec RP

 22 FLRA No. 1
 
 U.S. DEPARTMENT OF ENERGY 
 FEDERAL ENERGY REGULATORY COMMISSION
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 421, AFL-CIO
 Labor Organization
 
                                            Case No. 3-CU-50017
 
  ORDER DENYING IN PART AND GRANTING IN PART THE ACTIVITY'S
 APPLICATION FOR REVIEW
 
    On April 1, 1986, the U.S. Department of Energy, Federal Energy
 Regulatory Commission (Activity), filed a timely application for review,
 pursuant to section 2422.17(a) of the Authority's Rules and Regulations,
 seeking to set aside in part the Regional Director's Decision and Order
 on Petition for Clarification of Unit in the above-named case.  In
 support thereof, the Activity contends that compelling reasons exist
 within the meaning of section 2422.17(c) of the Authority's Rules and
 Regulations for granting the application with regard to the Regional
 Director's determination that 40 employees should be included within the
 unit and his refusal to pass on the unit status of 6 disputed
 individuals on the basis that the record contains insufficient evidence
 as to the duties they perform.
 
    Upon consideration of the Activity's application for review,
 including all arguments in support thereof, the Authority concludes that
 no compelling reason exists for granting the application with respect to
 the 40 employees that the Regional Director found should be included in
 the unit.  /1/ The 40 employees included 27 alleged to be management
 officials, 10 alleged to be confidential employees or engaged in
 personnel work in other than a purely clerical capacity, and 3 alleged
 to be supervisors.  With respect to those employees alleged to be
 management officials, the Activity argues that extraordinary
 circumstances exist here because the Regional Director's ruling that
 certain employees are not management officials within the meaning of
 section 7103(a)(11) of the Statute will affect their merit pay status.
 This argument is without merit.  As the Authority ruled in December
 1980, an agency's determination that an employee is a management
 official for purposes of coverage under the "merit pay" provisions of
 the Civil Service Reform Act of 1978 has no impact on such employee's
 inclusion in or exclusion from a unit of exclusive recognition under
 section 7112 of the Statute.  Interpretation and Guidance, 4 FLRA 754
 (1980).  The application as to all of the included employees in essence
 expresses mere disagreement with the Regional Director's findings which
 are based on Authority precedent and have not been shown to be clearly
 erroneous or to have prejudicially affected the rights of any party.
 
    Accordingly, pursuant to section 2422.17(f)(3) of the Authority's
 Rules and Regulations, IT IS ORDERED that the application for review of
 the Regional Director's Decision and Order on Petition for Clarification
 of Unit, to the extent that it challenges his inclusion of 40 employees
 in the unit, be, and it hereby is, denied.
 
    However, the Authority finds that a compelling reason exists because
 of a departure from Authority precedent within the meaning of section
 2422.17(c)(1) of the Authority's Rules and Regulations for granting
 review of that part of the Activity's application for review which
 challenges the Regional Director's failure to rule on the alleged
 supervisory status of six named individuals due to insufficient record
 evidence as to the duties they perform.  /2/ The Authority, in section
 2422.16 of its Rules and Regulations, has specifically provided that in
 representation cases such as the one involved here, "the Regional
 Director shall issue a Decision and Order determining the appropriate
 unit, directing an election or dismissing a petition, or making other
 disposition of the matters before the Regional Director." Further,
 section 2422.9(a) of the Authority's Rules and Regulations provides:
 "(I)t shall be the duty of the Hearing Officer to inquire fully into all
 matters in issue and the Hearing Officer shall obtain a full and
 complete record upon which the Authority can make an appropriate
 decision. . . ." Section 2422.9(b) further provides in part that
 "(h)earings under this section are considered investigatory and not
 adversary.  Their purpose is to develop a full and complete factural
 record(.)" These provisions codify the well-established principle that
 the purpose of representation proceedings such as this one is to resolve
 the issues presented in a non-adversary environment where no party has
 the burden of proof but where all evidence necessary and relevant to the
 disposition of the issues must be developed in the record.  The
 Authority has emphasized many times the need for development of a full
 and complete record in order to decide disputed factural issues.  See,
 for example, the Authority's orders remanding similar cases to Regional
 Directors for that purpose in Department of Health and Human Services,
 Region IV, Atlanta, Georgia, Case No. 4-CU-30009 (March 30, 1984), and
 Red River Army Depot, Texarkana, Texas, Case No. 6-RO-30007 (April 6,
 1984).
 
    The responsibility for resolving these issues has been entrusted to
 the Authority's Regional Directors, whose representatives, the Hearing
 Officers in particular representation proceedings, have the duty to
 obtain the evidence necessary to enable the Regional Directors to decide
 the issues presented.  Where a factual record is deemed to be incomplete
 by the Regional Director, thus precluding a determination of one or more
 of the issues presented, it is incumbent upon the Regional Director to
 reopen the record for the purpose of obtaining the necessary evidence.
 The Regional Director may not simply dismiss the petition for lack of
 evidence.  Thus, the Authority views the Regional Director's failure to
 obtain sufficient facts in order to make a unit determination as to the
 six individuals at issue to be in error.
 
    Accordingly, IT IS ORDERED that the Activity's application for
 review, to the extent that it challenges the Regional Director's failure
 to rule on the supervisory status of six named individuals, is granted,
 and such matters are remanded to the Regional Director for appropriate
 action and determinations consistent with the above.
 
    Issued, Washington, D.C., June 2, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) As the Activity in its application for review does not seek
 review of the Regional Director's findings that 35 employees should be
 excluded from the bargaining unit, these findings are not at issue and
 have not been considered herein.
 
    (2) As set forth in the Regional Director's Decision (note 14), the
 six individuals are:  Anthony R. Jiorle, Financial Analyst, GM-01160-14,
 George Shriver, III, Financial Analyst, GM-01160-14, Chester F.
 Maruszewski, Staff Accountant, GM-00510-14, Jeanne M. Zabel, Public
 Utility Specialist, GM-01130-14, Russell R. Glasgow, Jr., Regulatory Gas
 Utility Specialist, GM-01101-14, and Richard J. Marek, Regulatory Gas
 Utility Specialist, GM-01101-14.