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 o