22:0003(1)CU - DOE, Federal Energy Regulatory Commission and AFGE Local 421 -- 1986 FLRAdec RP
[ v22 p3 ]
The decision of the Authority follows:
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.