24:0922(89)CU - U.S. DEPARTMENT OF COMMERCE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION NATIONAL MARINE FISHERIES SERVICE, NORTHEAST REGION and INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS (IOMMP), AFL-CIO -- 1986 FLRAdec CU



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24:0922(89)CU
The decision of the Authority follows:


24 FLRA No. 89


   U.S. DEPARTMENT OF COMMERCE NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION NATIONAL MARINE FISHERIES SERVICE, NORTHEAST REGION
   Activity

                     and             Case No. 1-CU-50002

   INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS (IOMMP),
AFL-CIO
   Labor Organization

                           DECISION AND ORDER

                        I.  Statement of the Case

   This case is before the Authority at this time for review of the
Regional Director's Decision and Order dismissing the petition for
clarification of unit filed by U.S. Department of Commerce, National
Oceanic and Atmospheric Administration, National Marine Fisheries
Service, Northeast Region (the Activity).  The Activity sought to
clarify a bargaining unit of permanent part-time Foreign Fisheries
Observers to include a larger group of assertedly unrepresented
temporary intermittent observers.  The Regional Director dismissed the
Activity's petition on the ground that the requested unit was
inappropriate.  The Activity filed an application for review of the
Regional Director's Decision with the Authority.  The Activity contended
that review should be granted because a substantial question of law or
policy is raised, i.e., that the Regional Director's Decision did not
rely on Authority precedent.

   The Authority granted the application for review under section
2422.17(c)(1) of the Authority's Rules and Regulations based on a
determination tht a substantial issue of law or policy existed because
of the absence of Authority precedent in the matter.  A supplemental
brief was filed by the International Organization of Masters, Mates and
Pilots, AFL-CIO (the IOMMP).  The Authority finds that as the temporary
intermittent Foreign Fisheries Observers have the same conditions of
employment as the permanent part-time observers they have been included
in the unit represented by IOMMP on the date each employee was hired.

                               II.  Facts

   On January 15, 1981, the IOMMP was certified as the exclusive
bargaining representative of a unit of all regular and regular part-time
Foreign Fisheries Observers of the Activity.  The observers are involved
in monitoring foreign fishing operations in the Fishery Conservation
Zone located in the Northwest Atlantic Ocean and in collecting data from
foreign fishing vessels in connection with the Department of Commerce's
fisheries research program.  The work is performed by the observers on
board foreign fishing vessels in three-week deployments during which the
observers work 12 to 16 hour days.  When the program began in 1977, the
Activity hired observers on a permanent intermittent basis.  As such,
they received career status but none of the benefits accorded to regular
permanent Federal employees.  The observers received pay only for
periods of time actually spent on deployments.  In 1979, the Activity
converted the observers from permanent intermittent status to permanent
part-time status.  Thereafter, the observers were regularly scheduled to
work one day per week in the Activity's office in addition to their
deployment aboard all foreign vessels.  As a result, they became
eligible for all Federal employee benefits.

   As of the date of the representation election on January 7, 1981, the
Activity employed 12 permanent part-time observers and no temporary
intermittent observers.  In June 1981, partly for reasons of cost, the
Activity began hiring observers exclusively on a temporary intermittent
basis.  At the time of the hearing, the Activity employed 24 temporary
intermittent observers and 8 permanent part-time observers.  Temporary
intermittent observers are appointed for one calendar year, but may be
extended for an additional three years.  At the end of four years, they
are terminated.  All observers are initially hired at the GS-5 level and
can progress to a journeyman level of GS-9.  All observers:  (1) share
common supervision, performance plans, and working conditions;  (2)
perform the same duties while deployed on foreign fishing vessels;  (3)
are compensated for their travel and per diem expenses at the prevailing
rate;  and (4) rotate equitably through the assignment list and receive
about the same number of assignments per year.  As already indicated,
each assignment lasts about three weeks.

   The one-year collective bargaining agreement between the IOMMP and
the Activity which was entered into in January 1984 and has since
expired did not refer to temporary intermittent observers although some
had been hired at the time.  The record indicates that the temporary
intermittent observers were not mentioned in the contract because at
that time there was a strong chance that the observer function would be
contracted out and the Activity believed that the temporary intermittent
observers would be hired by the private contractor when their work was
contracted out.  There have been no grievances filed by temporary
intermittent observers under the negotiated procedure contained in the
agreement, nor is there any evidence that any temporary intermittent
observer has ever allotted dues to, been a member of, or otherwise been
represented by the IOMMP.  The temporary intermittent observers enjoy
none of the Federal employee benefits of the permanent part-time
observers and are not regularly scheduled to work one day per week in
the Activity's office.

   On August 7, 1985, the Activity filed its clarification of unit
petition seeking to clarify the existing unit to include the temporary
intermittent observers.  The IOMMP opposed the Activity's petition.
However, the IOMMP stated during the course of the hearing that it was
not opposed to representing the temporary intermittent observers as a
separate unit.

                   III.  Regional Director's Decision

   The Regional Director dismissed the Activity's petition.  The
Regional Director found that while under applicable Authority precedent
there were many factors present which would support a finding that the
temporary intermittent observers had become part of the existing unit
through accretion, the temporary intermittent observers outnumber the
permanent part-time observers by approximately 3 to 1 and there is no
evidence that the temporary intermittent observers have ever been
represented by the IOMMP.  The Regional Director further noted that the
Authority has never addressed the propriety of adding a larger group of
unrepresented employees to a smaller unit by means of a clarification of
unit.  Relying on private sector case law, Renaissance Center
Partnership, 239 NLRB 1247 (1979) and Gould-National Batteries, 157 NLRB
679 (1966), the Regional Director concluded that accretion of the
temporary intermittent observers to the certified unit without benefit
of a self-determination election was unwarranted.

                      IV.  Positions of the Parties

   The Activity contends that there is no dispute that the temporary
intermittent observers share a clear community of interest with the
permanent part-time observers and that their inclusion will promote both
effective dealings and the efficiency of Agency operations.  The
Activity argues that the two private sector cases cited by the Regional
Director are inapposite as there was no attempt in the present case by
the Activity to deny the temporary intermittent observers the right of
self-determination.  The Activity contends that the temporary
intermittent observers were not in existence as a unit when the IOMMP
was certified and that the reason they were not mentioned in the
collective bargaining agreement was because of the understanding at the
time of negotiations that their functions eventually would be contracted
out.

   The IOMMP argues that to allow the temporary intermittent observers
to accrete into the unit would result in the following consequences:
(1) it would place the temporary intermittent observers in a bargaining
unit with employees whose interests are antagonistic to their own,
insofar as there is some competition among employees for deployments on
vessels;  (2) it would require IOMMP to represent persons it did not
seek to represent and who had not requested representation;  (3) it
would deprive the temporary intermittent observers of their right to
select a bargaining representative;  and (4) it would require the IOMPP
to represent and/or negotiate for a unit in which three-fourths of the
employees were persons whose virtually every term and condition of
employment was a matter reserved by management by virtue of section 7106
of the Statute.

                              V.  Analysis

   We find in agreement with the Regional Director that the Activity's
petition should be dismissed.  However, we reach that conclusion for
different reasons.  The Regional Director addressed the issue raised by
the Activity's petition in a traditional accretion case context.  We
disagree with that reasoning.  In light of the record described above,
we find that since the temporary intermittent observers shared a
community of interest with the permanent part-time observers from the
time they were hired, they were included in the unit from the beginning
of their employment.

   The record establishes that all of the observers:  (1) are initially
hired at the GS-5 level and can progress to a journeyman level of GS-9;
(2) share common supervision, performance plans, and working conditions;
 (3) perform the same duties while deployed on foreign fishing vessels;
and (4) are compensated for their travel and per diem expenses at the
prevailing rate.  The record also indicates that the temporary
intermittent observers have a reasonable expectancy of future employment
as most of them work for up to four years.  The only difference between
the permanent part-time observers and the temporary intermittent
observers is that the permanent part-time observers enjoy Federal
employee benefits because they work one day a week in the Activity's
office.  It would seem that this difference will become less significant
as the number of permanent part-time observers decrease by attrition
since the Activity is no longer hiring observers in that classification
and the unit will be composed of only temporary intermittent observers.
The IOMPP argues that inclusion of the temporary intermittent observers
into the unit with the permanent part-time observers would cause
friction between the groups because of the collective bargaining
agreement provision which requires the Activity to give priority on
deployment to permanent part-time observers.  The Authority find