34:0021(6)CU - - HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1989 FLRAdec RP - - v34 p21

[ v34 p21 ]
The decision of the Authority follows:

34 FLRA No. 6










(Labor Organization)




December 21, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application filed by the American Federation of Government Employees, Local 1770, AFL-CIO (AFGE, Local 1770) under section 2422.17 of the Authority's Rules and Regulations. AFGE, Local 1770 seeks review of the Regional Director's Decision and Order dismissing the petition for clarification of the bargaining unit filed by the Headquarters, XVIII Airborne Corps and Fort Bragg (Activity/Petitioner). The Activity/Petitioner did not file an opposition to the application.

Inasmuch as the Authority had two vacancies when this application for review was received, Acting Chairman McKee issued an Interim Order on April 17, 1989, directing that consideration of the application be deferred until further notice. The Interim Order preserved the parties' rights under the Statute to Authority consideration of the Regional Director's decision.

For the reasons discussed below, the Authority grants the application for review. We remand the case to the Regional Director for action consistent with this decision.

II. Background and Regional Director's Decision

The Activity/Petitioner filed a petition seeking to clarify whether 21 temporary employees of the U.S. Army Tank Automotive Command (TACOM) were included in the bargaining unit represented by AFGE, Local 1770, which is described below.

Included: All civilian employees, including guards, at Fort Bragg, North Carolina, who are administered by the Civilian Personnel Office and paid from appropriated funds, including employees of the following tenant units: US Army Airborne and Communications - Electronics Board; US Army Medical Department Activities; US Army Institute for Military Assistance; US Army Communications Command Agency - Fort Bragg; Headquarters, US Army First ROTC Region; Troop Support Agency - Commissary; US Army Intelligence and Security Command, General Intelligence Production Detachment - Fort Bragg; and US Army Dental Activity.

Excluded: All professional employees; management officials; supervisors; and employees described in 5 USC 7112(b)(2), (3), (4), (6) and (7).

This unit was described in a certification issued in Case No. 4-RO-20020, dated November 30, 1982.

This unit clarification question arose when an employee grieved his discharge from the temporary TACOM team. Initially, the Activity processed the grievance. When the grievance was not resolved, the Union invoked arbitration. Prior to the arbitration hearing, the Activity asserted that the grievant was not included in the bargaining unit. To resolve the issue of the grievant's bargaining unit status, the Activity filed this petition for clarification of the bargaining unit status of the 21 temporary TACOM employees. The Regional Director received the clarification of unit petition on April 1, 1988.

On October 14, 1988, the arbitrator stayed the arbitration proceedings. The arbitrator stated that he was acting in compliance with U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988) (Small Business Administration) which holds that the Authority, not arbitrators, must resolve the issue of whether particular employees are included in a bargaining unit.

The Regional Director found that TACOM, which is headquartered in Warren, Michigan, established a temporary work group at Fort Bragg to issue high mobility, multipurpose wheeled vehicles to Fort Bragg activities. Temporary employees were hired at Fort Bragg, during April and May 1987 to perform the work, but TACOM retained the manpower space allocations for the 21 temporary positions. By December 1987, when the work was completed, the employees were terminated.

The Regional Director found that the 21 TACOM positions were vacant and no longer existed at Fort Bragg. The Regional Director concluded that she lacked authority to clarify the bargaining unit status of vacant positions because of the Authority's decision in Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52 (1981) (Bureau of the Mint) which held that "[i]n making decisions involving appropriate units, the Authority will not resolve issues involving vacant positions." Id. at 53. Relying on Bureau of the Mint, the Regional Director dismissed the petition for clarification of the bargaining unit.

III. The Application for Review

AFGE, Local 1770, asserts that Small Business Administration requires that the Authority resolve the unit clarification issue raised in this petition. Resolution of this issue is determinative of whether the employee discharged from the TACOM team may proceed to arbitration. If the Authority were to determine that this employee was in the bargaining unit at the time of his discharge, the Union may pursue his grievance in arbitration. The Union argues that unless the Authority resolves this unit clarification issue, the employee would be denied "an avenue of redress of his grievance," if he is entitled to an arbitration hearing. Application for Review at 1.

According to AFGE, Local 1770, "the concerns [in Bureau of the Mint] over the position description and/or duties that may have been or could have been inaccurately reflected if the position was not encumbered" are not at issue here. Id. In order to permit this matter to proceed, the Union requests, among other alternatives, that the Authority direct the Regional Director to make a unit clarification determination or grant the Arbitrator authority to resolve the grievant's bargaining unit status.

IV. Analysis and Conclusion

We conclude 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. Specifically, we find extraordinary circumstances warrant reconsideration of an Authority policy. See section 2422.17(c)(2).

The Activity asserted to the arbitrator that the discharged TACOM employee was not in the bargaining unit. The arbitrator stayed the case noting the Authority's holding in Small Business Administration. In Small Business Administration, the Authority found "that the Authority--not arbitrators--must resolve questions concerning whether certain employees are included in a certified bargaining unit." Id. at 852. The Authority noted that section 7105(a)(2)(A) of the Federal Service Labor-Management Relations Statute (the Statute) provides that the Authority "shall . . . determine the appropriateness of units for labor organization representation under section 7112 of [the Statute]." Additionally, section 7112(a)(1) provides that the "Authority shall determine the appropriateness of any unit." The Authority noted that the Statute does not indicate that appropriate unit determinations may be made through the negotiated grievance and arbitration procedure. Rather, unit determinations, including the resolution of questions concerning the bargaining unit status of individuals, must be made by the Authority. Id. at 853. Thus, the arbitrator correctly applied Small Business Administration in continuing the arbitration until the Authority could act on the unit clarification petition to resolve the grievant's bargaining unit status.

Thereafter, the Regional Director dismissed the Activity's unit clarification petition on January 26, 1989. The Regional Director found that the TACOM positions, including the grievant's former position, were vacant and no longer existed at Fort Bragg. Citing Bureau of the Mint, the Regional Director concluded that she lacked authority to clarify the bargaining unit status of the vacant TACOM positions.

We conclude that the Authority must resolve the clarification of unit petition in order to avoid the possibility that the grievant will be denied access to arbitration improperly. If the Authority were to find that the employee was in the bargaining unit when he was discharged, then he is covered by the provisions of the parties' collective bargaining agreement, including the arbitration provision. In that case, the arbitrator would hear