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 ]
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 record that such a request was not initiated as a result of an agency reorganization or other administrative action which left the status of the petitioned-for employees in dispute.