26:0620(77)RO - Navy, Naval Air Station, Point Mugu, CA and Federal Firefighters Association Local 55 and NAGE, SEIU and NFFE Local 1374 -- 1987 FLRAdec RP



[ v26 p620 ]
26:0620(77)RO
The decision of the Authority follows:


 26 FLRA No. 77
 
 DEPARTMENT OF THE NAVY,
 NAVAL AIR STATION,
 POINT MAGU, CALIFORNIA
 Activity
 
 and
 
 FEDERAL FIREFIGHTERS ASSOCIATION, 
 LOCAL 55, INDEPENDENT
 Labor Organization/Petitioner
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, SEIU, AFL-CIO
 Labor Organization/Intervenor
 
 and
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 1374
 Labor Organization/Incumbent
 
                                            Case No. 8-RO-70001
 
                   ORDER DENYING APPLICATION FOR REVIEW
 
                         I.  Statement of the Case
 
    This case is before the Authority on an application filed by the
 Federal Firefighters Association, Local 55, Independent (the FFA) under
 section 2422.17(a) of the Authority's Rules and Regulations for review
 of the Regional Director's Decision and Order on the FFA'S petition for
 certification of representative.
 
                     II.  Regional Director's Decision
 
    The FFA sought to represent a unit of all nonprofessional General
 Schedule (GS) employees, including fire captains and supervisory
 firefighters GS-6, employed at the Federal Fire Department, Naval Air
 Station, Point Mugu, California (the Activity).  Since October 1985,
 these employees have been part of an Activity-wide unit represented by
 the National Federation of Federal Employees, Local 1374(the Incumbent
 Union).  Between February 1977 and October 1985, the petitioned-for
 employees were part of the same Activity-wide unit which then was
 represented by a joint council which included that Incumbent Union and
 the National Association of Government Employees, SEIU, AFL-CIO (the
 Intervenor).
 
    The Regional Director dismissed the FFA'S petition.  He found that
 the established Activity-wide bargaining unit remains appropriate and
 that no unusual circumstances were present to justify the severance of
 the petitioned-for employees from the established bargaining unit.  In
 support of his determination, he cited the Authority's decision in
 Library of Congress, 16 FLRA 429 (1984).
 
                       III.  Application for Review
 
    In its application the FFA contends that three compelling reasons
 exist within the meaning of section 2422.17(c) of the Authority's Rules
 and Regulations for granting application.  First, the FFA contends under
 section 2422.17 (c)(1) that a substantial question of law or policy is
 raised because the Regional Director's decision is not in accord with
 the Authority's precedent.  In support of its position, the FFA cites
 the Authority's decisions in Department of the Navy, Naval Station,
 Norfolk, Virginia, 14 FLRA 702 (1984) and Panama Canal Commission, 5
 FLRA 104 (1981).
 
    Second, the FFA contends under section 2422.17(c)(4) that the
 Regional Director's finding that the Incumbent Union has fairly and
 adequately represented the petitioned-for employees is clearly
 erroneous.  The FFA argues that such finding is erroneous because the
 Incumbent Union has not attempted to negotiate a collective bargaining
 agreement during the one and one-half years it has been the sole
 representative of the firefighters.  The FFA further argues that the
 Incumbent Union's failure to negotiate an agreement constitutes the
 "unusual circumstances" which would under Authority precedent allow a
 separation of a distinct firefighters unit.
 
    Third, the FFA contends under section 2422.17(c)(2) that the
 Authority should reconsider its policy requiring "unusual circumstances"
 to justify separating a unit.  It argues that the Authority's policy
 interferes with the statutory mandate that the desires of the employees
 should be determinative where the appropriateness of a larger unit and
 that of a smaller unit are equal.  In support of its position the FFA
 cites the Authority's decision in Department of Defense, Department of
 the Army, 193rd Infantry Brigade (Panama), 7 FLRA 471 (1981).
 
                       IV.  Analysis and Conclusions
 
    We conclude that no compelling reasons exist within the meaning of
 section 2422.17(c) for granting the FFA's application for review.  In
 particular we conclude that no substantial question of law or policy is
 raised by reason of the precendent cited by the Regional Director.  The
 petition here sought to carve out or sever from the established
 Activity-wide unit represented by the Incumbent Union a smaller unit of
 firefighters.  /*/ In Library of Congress, the Authority held that where
 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.  The decisions cited by the FFA in support of its
 position are inapposite since they involved unrepresented employees,
 rather than the requested severance of a group of employees from an
 established exclusively represented unit.  In Panama Canal Commission,
 the Authority 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-wide unit or constitute a separate
 appropriate unit.
 
    We also conclude that the Regional Director did not err in finding
 that the Incumbent Union fairly and adequately represented the
 petitioned-for employees.  Contrary to the FFA the weight of the
 evidence does not demonstrate that the firefighters have not been
 represented fairly or that their bargaining concerns have been
 overlooked by the Incumbent Union.  There is no evident that the
 Incumbent Union has failed or refused to represent any of the
 petitioned-for employees or that it has treated them in a disparate
 manner.  FFA asserts, contrary to the Regional Director, that the
 bargaining unit is not now covered by a collective bargaining agreement
 and has not been covered by an agreement for over two years.  Even
 assuming that the FFA is correct, we do not find the lack of a
 collective bargaining agreement to be dispositive in this case because
 there is no evidence that failure to renegotiate a contract over the
 time period involved in this case deprived unit employees of rights
 under the Federal Service Labor-Management Relations Statute (the
 Statute) or is "unusual" in the Federal program.  Further, there is no
 showing that any such failure affected the petitioned-for employees any
 differently than other employees in the unit.  Although the negotiation
 of a collective bargaining agreement is an important part of a union's
 representational responsibilities, we find in the circumstances of this
 case that the absence of such an agreement, standing alone, is not
 sufficient evidence to establish that the Incumbent Union failed to
 represent the petitioned-for employees in a fair and effective manner.
 
    As to its final contention that the Authority should reconsider its
 policy requiring "unusual circumstances" to justify separating a unit,
 the FFA has not established that there are "extraordinary circumstances"
 within the meaning of section 2422.17(c)(2) warranting reconsideration
 of that policy.  Rather the argument presented by the FFA in support of
 its contention constitutes nothing more than disagreement with the
 Authority's policy.  Further, the decision the FFA cites in support of
 its position, Department of Defense, Department of the Army, 193rd
 Infantry Brigade (Panama), is inapposite.  That case involved the
 appropriateness of an overall unit consisting of an activity and several
 of its tenant activities, rather than the severance of employees from an
 established bargaining unit, and was limited to the special
 circumstances of the case.  The Authority found that an overall unit
 consisting of the activity and several of its tenant activities could
 constitute a separate appropriate unit and that five small separate
 units of the activity and four tenant activities also could constitute
 appropriate units.  The Authority also noted in that case that the
 decision was limited to the special circumstances with respect to the
 extension of coverage of the Statute under the Panama Canal Act of 1979
 (93 Stat. 456) to employees of Executive agencies operating in the area
 of the Republic of Panama.
 
                                 V.  Order
 
    The application for review of the Regional Director's Decision and
 Order is denied.
 
    Issued, Washington, D.C., April 21, 1987.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       /s/ Jean McKee
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) It is clear from the recor