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
[ v24 p922 ]
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 finds no merit in this argument as the collective bargaining agreement has expired and a new provision concerning deployments could be negotiated to cover the temporary intermittent observers. In summary, we find that temporary intermittent observers were included from the date of their hiring as part of the unit represented by IOMMP which included the permanent part-time observers. Separate units of these employees would be inappropriate as they perform the same job functions under identical working conditions and under the same supervision. VI. Conclusion Since the temporary intermittent observers were included in the unit with the permanent part-time observers from the beginning of their employment, the Activity's petition seeking to clarify the established unit to include the temporary intermittent observers is moot and is dismissed on that basis. ORDER The petition filed in Case 1-CU-50002 is dismissed. Issued, Washington, D.C., December 30, 1986.