32:0622(90)RO - - Labor and Operation and Maintenance Service, Inc. (Keystone Job Corps Center) and Teamsters Local Union No. 401, International Brotherhood of Teamsters, Chuffeurs, Warehousemen and Helpers of American- - 1988 FLRAdec RP - - v32 p622



[ v32 p622 ]
32:0622(90)RO
The decision of the Authority follows:


32 FLRA No. 90

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C


                                                        U.S. DEPARTMENT OF LABOR

and

OPERATION AND MAINTENANCE
SERVICE, INC. (KEYSTONE JOB
CORPS CENTER)
Activity

and 

TEAMSTERS LOCAL UNION NO. 401
a/w INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS
OF AMERICA
Petitioner

Case No. 2-RO-80001

ORDER DENYING APPLICATION FOR REVIEW

I. Statement of the Case

This case is before the Authority on an application filed by Teamsters Local Union No. 401 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 401) under section 2422.17(a) of the Authority's Rules and Regulations. The application seeks review of the Regional Director's Decision and Order. The U.S. Department of Labor (DOL) filed an opposition to application for review.

Local 401 filed the petition for Certification of Representative (RO) in this case seeking to represent a unit of Residential Advisors A and B; Day Residential Counselors; Supervisor, Dorm Life and Counseling; Supervisor, Recreation; and Recreation Specialists employed at the Keystone Job Corps Center in Drums, Pennsylvania.

The Regional Director dismissed the petition because he found that the petitioned-for unit was not appropriate for certification under 5 U.S.C. § 7112(a)(1) of the Statute.

Local 401 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 for granting the application for review. We, therefore, deny the application.

II. Background and Regional Director's Decision

The employer, Operation and Maintenance Service, Inc. (OMS), a subsidiary of General Electric International Service Company, entered into a cost-plus, fixed fee contract with the DOL's Office of Job Corps (DOL), Philadelphia Region, on March 13, 1986, to operate the Keystone Job Corps Center. OMS is responsible for operating the Center, including hiring the staff, providing the necessary materials and supplies for running the Center and generally overseeing the entire operation. DOL's role is limited to monitoring OMS' compliance with the contract so as to ensure that the services contracted for are provided.

In his decision, the Regional Director addressed the following three issues: (1) whether or not the petitioned- for unit consisted of "employees" as defined in section 7103(a)(2)(A) of the Federal Service Labor-Management Relations Statute (the Statute); (2) whether or not OMS was an "Executive Agency" as defined in the Statute; and (3) whether or not OMS and DOL were joint-employers.

The Regional Director first addressed the issue of whether the petitioned-for unit consisted of "employees" as defined in the Statute. He noted that section 7103(a)(2)(A) of the Statute defines "employee" as "an individual employed in an agency." This definition is clarified by 5 U.S.C. § 2105(a) which further defines an employee as an individual who is appointed in the civil service by an appropriate Government employee; is engaged in the performance of a Federal function under authority of law or an Executive act; and is subject to the supervision of a Government employee while engaged in the performance of the duties of the position. The Regional Director further noted that Costner v. United States, 665 F.2d 1016 (Ct. Cl. 1981) requires that all three elements set forth in 5 U.S.C. § 2105(a) must be present to signal the existence of a Federal employee. The Regional Director also examined the definition of "agency" as found in section 7103(a)(2)(A). He noted that section 7103(a)(3) of the Statute defines "agency" as an "Executive agency." 5 U.S.C. § 105 defines Executive agency as an Executive department, a Government corporation and an independent establishment. 5 U.S.C. § 104 defines an independent establishment as an establishment in the executive branch which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment. In applying the statutory requirements set forth above, the Regional Director found that the record indicated that the employees in the petitioned-for unit were not employed by an Executive Agency such as DOL. Rather, they were employed by OMS. He noted that although DOL through the contracting process is involved in establishing specific conditions of employment of the employees in question, the employees are hired, supervised and subject to termination by OMS. He found that the type of supervision necessary to the creation of a Federal employer-employee relationship is supervision of the manner and means by which work is performed by individual employees, not the supervision of the contractor. Lodge 1858 American Federation of Government Employees v. Webb, 580 F.2d 496 (D.C. Cir. 1978), cert. denied 439 U.S. 927 (1978).

The Regional Director concluded that the DOL supervises OMS while OMS supervises the employees. Thus, he found that there was an absence of DOL supervisory control of employees within the meaning of 5 U.S.C. § 2105(a)(3). Consequently, the Regional Director found that the employees involved in this case were not Federal employees within the meaning of section 7103(a)(2)(A) of the Statute and 5 U.S.C. § 2105(a). He noted that none of the employees involved were subject to the supervision of a Government employee while engaged in the performance of their duties. Further, he found that none of the employees involved had been "appointed" to a civil service position. See Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA 492, 554 (1987), petition for review filed sub nom., Overseas Education Association, Inc. v. FLRA, No. 87-1279 (D.C. Cir. June 25, 1987); Fort Bragg Schools System, Fort Bragg, North Carolina, 3 FLRA 619 (1980).

The Regional Director also found that OMS was not an "Executive Agency." He noted that the record established that OMS was a subsidiary of General Electric International Service Company, a subsidiary of RCA Corporation, which is owned by General Electric. He found that the record was devoid of any evidence to support an assertion that OMS is an Executive agency or independent establishment in the executive branch of the Federal Government as defined in 5 U.S.C. § 104 and 105. Further, the Regional Director found that there was no statutory basis to conclude that Congress intended the private contractors and their employees who operate Job Corps Centers to be, respectively, Federal agencies and employees.

In conclusion, the Regional Director found that OMS and DOL were not joint-employers. He held that as OMS did not meet the statutory definition of an "Executive Agency," it was outside the jurisdiction of the Statute.

The Regional Director, therefore, concluded that as the Authority does not have jurisdiction over the petitioned-for unit, the petition must be dismissed.

III. Application For Review

Pursuant to section 2422.17(c) of the Authority's Rules and Regulations, Local 401 requests review of the Regional Director's decision on three grounds: (1) the decision raises a substantial question of law because the Authority never has determined whether an agency can exercise such a degree of control over a contractor to render the contractor's employees, Federal employees under a "joint-employer" concept; (2) the decision raises a substantial question of policy because, with the National Labor Relations Board's (NLRB) decision in Res-Care, Inc., 280 NLRB No. 78 (1986), employees of contractor-operated Job Corps Centers are denied the same right to organize enjoyed by their counterparts in Government-operated Job Corps Centers; and (3) the Regional Director's determination that the Center's employees are not employees within the meaning of section 7103(a)(2) of the Statute is clearly erroneous and denies Local 401 the right to a representation election.

Local 401 asserts that if the Authority refuses to take jurisdiction over the employees involved in this case, the practical effect will be to deprive contractor employees at Job Corps Centers of the right to organize, a result it contends was never envisioned by Congress.

IV. Discussion

At the outset, we note that Local 401 initially filed a petition for the unit involved in this case with the NLRB. The petition (Case No. 4-RC-16511) was dismissed by the Regional Director of Region 4, NLRB. The NLRB Regional Director found that, consistent with the Board's decision in Res-Care, Inc., the employer did not "possess sufficient control over the wages, hours, and working conditions of its employees to enable it to engage in meaningful collective bargaining with a labor organization." There is nothing in the record before us to indicate that Local 401 requested the Board to review the decision to dismiss its petition.

Our task is to review Local 401's application for review of the FLRA Regional Director's decision under the Statute and our regulations. We do not address in any way the decision of the NLRB's Regional Director and that decision does not affect our disposition of the application for review.

After consideration and review of Local 401's application for review, we conclude that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application. The Regional Director found that: (1) OMS employees were not Federal employees within the meaning of section 7103(a)(2)(A) of the Statute and 5 U.S.C. § 2105(a), since none of the employees involved had been "appointed" to a civil service position and none of the employees were subject to the supervision of a government employee while engaged in the performance of their duties; (2) OMS, a subsidiary of General Electric Service Company, was not an "Executive Agency" or independent establishment in the executive branch of the Federal Government as defined in section 7103(a)(3) of the Statute and 5 U.S.C. §§ 104 and 105; and (3) OMS and DOL were not joint-employers because OMS did not meet the statutory definition of an "Executive Agency" and the Statute does not recognize "hybrid entities."

Local 401's application has not presented any arguments or precedent which would require the Authority to reach a different conclusion. Rather, the application merely disagrees with the conclusions and legal reasoning of the Regional Director. Mere disagreement with the Regional Director does not form a basis for the granting of an application for review within the meaning of section 2422.17(c) of the Authority's Rules and Regulations. Further, the Regional Director's findings are based on evidence developed during a 2-day hearing, and have not been shown to be clearly erroneous or to have prejudicially affected the rights of any party. See, for example, U.S. Army Air Defense Artillery Center And Fort Bliss, Fort Bliss, Texas, 31 FLRA 938 (1988).

V. Order

The application for review of the Regional Director's Decision and Order is denied.

Issued, Washington, D.C.,

_______________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY