31:0938(74)RO - Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, TX and Hotel Employees and Restaurant Employees International Union, Local 628 and NAGE Local R14-22 -- 1988 FLRAdec RP



[ v31 p938 ]
31:0938(74)RO
The decision of the Authority follows:


  31 FLRA NO. 74

AKA:              31 FLRA 938
                  6-RO-70011

Date:             23 MAR 1988


U.S. ARMY AIR DEFENSE ARTILLERY
CENTER AND FORT BLISS
FORT BLISS, TEXAS

                   Activity

         and

HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES
INTERNATIONAL UNION, LOCAL 628, AFL-CIO

                   Petitioner

         and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-22, AFL-CIO

                   Incumbent/Intervenor

Case No. 6-RO-70011

ORDER DENYING APPLICATION FOR REVIEW

     I. Statement of the Case

     This case is before the Authority on an application filed by
the Hotel Employees and Restaurant Employees International Union,
Local 628, AFL - CIO (HERE) under section 2422.17(a) of the
Authority's Rules and Regulations, seeking review of the Regional
Director's Decision and Order.

     HERE filed the petition in this case seeking to represent
the Activity's Wage Grade employees classified as temporary
cooks. The Regional Director dismissed the petition, finding that
the proposed bargaining unit is not appropriate because the
temporary cooks do not have a clear and identifiable community of
interest separate and distinct from the Activity's other Wage
Grade employees represented by the National Association of
Government Employees, Local R14-22, AFL - CIO (NAGE). The
Regional Director also found that a unit containing only the
temporary cooks would not promote effective dealings or
efficiency of agency operations, as it would result in
unwarranted and artificial fragmentation of the Activity's
bargaining units.

     HERE contends that compelling reasons exist within the
meaning of section 2422.17(c) of the Authority's Rules and
Regulations for granting the application for review of the
Regional Director's decision. We find that no compelling reasons
exist and we, therefore, deny the application.

     II. Background and Regional Director's Decision

     In 1970, NAGE was certified as the exclusive representative
for an activity-wide unit of full-time permanent Wage Grade
employees, including those classified as cooks. In 1977 the cook
positions were converted from civilian to military positions and
the civilian cooks were terminated by a reduction-in-force.
Several months later, the positions were reconverted to civilian
positions. Since then, all cooks have been hired in civilian
positions as temporary employees, except for one cook who was
rehired as a permanent employee. According to the Regional
Director, the temporary cooks have not been represented by any
labor organization. HERE's petition for a unit of temporary cooks
was filed on July 17, 1987. NAGE intervened to oppose the
petition.

     In his Decision and Order, the Regional Director found that
the temporary cooks use special skills, have different hours of
work, and work in separate areas from the other Wage Grade
employees. Further, he found that the temporary cooks are subject
to different first and second level supervision, and do not
interchange job functions with other Wage Grade employees.

     However, the Regional Director also found that the temporary
cooks are serviced by the same personnel and payroll offices and
share the same pay scale and compensation system as the other
Wage Grade employees. He found that the temporary cooks share
common supervision above the second level of supervision with the
other Wage Grade employees. Further, he found that, in common
with the other Wage Grade employees, temporary cooks are more
prone to shift work, receive fewer opportunities for flextime,
and generally have less formal education and perform more manual
and routine work than do General Schedule employees. The Regional
Director also found that the temporary cooks, the other Wage
Grade employees, and the permanent cook share a common mission,
and are subject to the same personnel policies, practices, and
Fort Bliss rules and regulations, including those with regard to
discipline. Finally, the Regional Director found that there are
no differences between the working conditions of the
temporary cooks and the permanent cook, except with respect to
health and life insurance, reduction-in-force rights, and the
length of their expected continued employment.

     The Regional Director concluded that the temporary cooks do
not have a clear and identifiable community of interest separate
and distinct from the other Wage Grade employees and the
permanent cook. He further concluded, in agreement with the
contentions of NAGE and the Activity, that a unit containing only
the temporary cooks would not promote effective dealings or
efficiency of agency operations, as it would result in
unwarranted and artificial fragmentation of the Activity's
bargaining units.

     Finally, the Regional Director noted the Authority's
decision in U.S. Department of Commerce, National Oceanic and
Atmospheric Administration, National Marine Fisheries Service,
Northeast Region, 24 FLRA  922 (1986), in which the Authority
found that a unit of temporary intermittent employees ("Foreign
Fisheries Observers"), separate from an established unit of
permanent part-time employees, was not an appropriate unit. The
Authority dismissed a petition to clarify the established unit to
include the temporary intermittent employees. The Authority found
that the temporary intermittent employees shared a community of
interest with the permanent part-time employees and, therefore,
were included as part of the established unit from the date of
their hiring. The Regional Director concluded that in accord with
National Marine Fisheries Service, the temporary cooks are
included in the established unit represented by NAGE because they
have shared a community of interest with the other Wage Grade
employees and the permanent cook from the time they were hired.
The Regional Director, therefore, dismissed HERE's petition.

     III. Application for Review

     HERE contends that under section 2422.17(c) of the
Authority's Rules and Regulations, its application for review
should be granted because the Regional Director's decision on a
substantial factual issue is clearly erroneous and prejudicially
affects HERE's rights. HERE contends that the Regional Director
ignored or misinterpreted evidence and erred by concluding that
the temporary cooks share a community of interest with the other
Wage Grade employees and the permanent cook. HERE argues that the
Regional Director unduly relied on the similarities between these
classifications of employees and failed to accord proper
weight to the dissimilarities and to the facts that: (1