34:0050(13)RO - - FDIC and NTEU - - 1989 FLRAdec RP - - v34 p50



[ v34 p50 ]
34:0050(13)RO
The decision of the Authority follows:


34 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL DEPOSIT INSURANCE CORPORATION

(Activity)

and

NATIONAL TREASURY EMPLOYEES UNION

(Petitioner)

3-RO-80012

ORDER DENYING APPLICATION FOR REVIEW

December 27, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the Federal Deposit Insurance Corporation (the Activity or FDIC) under section 2422.17(a) of the Authority's Rules and Regulations. The Agency seeks review of the Regional Director's November 22, 1988 Decision and Direction of Election (Decision). The Regional Director found that a unit comprised of all professional and non-professional employees of the Agency's Division of Liquidation (DOL), Division of Accounting and Corporate Services (DACS), and the Legal Division who are located in DOL regional offices, consolidated offices and liquidation sites nationwide constituted an appropriate unit. The National Treasury Employees Union (the Petitioner) filed an opposition to the Agency's application for review.

Because two vacancies existed in the Authority Membership, Acting Chairman McKee issued an Interim Order on March 23, 1989, directing that consideration of this application for review be deferred until further notice in order to preserve the parties' rights under the Statute to Authority consideration of the Regional Director's Decision.

The Authority now considers this application for review. For the reasons discussed below, we deny the application for review.

II. Regional Director's Decision

The Union filed a petition seeking to represent a unit of all professional and nonprofessional employees of the Agency's DOL, DACS, and Legal Division who are located in DOL regional offices, consolidated offices and liquidation sites nationwide, but excluding all management officials, supervisors and employees described in 5 U.S.C. º 7112(b)(2), (3), (4), (6) and (7).

The Agency agreed to the scope of the claimed unit insofar as the Union sought a nationwide unit of the Agency's field employees in DOL regional offices, consolidated offices and liquidation sites. However, the Agency disagreed as to the inclusion of Liquidation Graded (LG) employees. The Agency contended that LG employees are temporary employees who have no reasonable expectation of continued employment. The Agency asserted that because of changes in its business operation, the LG employee work force would be substantially reduced by 1991. The Agency also contended that the LG employees do not share a community of interest with the Agency's other, permanent General Graded (GG) employees and that the inclusion of the LG employees in the claimed unit would not promote effective dealings with, and efficient operations of, the Agency.

There are approximately 800 GG employees and 3,500 LG employees in the claimed unit. The LG employees may receive appointments of various durations: (a) short-term appointments of 90 days but less than 1 year; (b) long-term appointments not to exceed 12 months; or (c) extended long-term appointments generally for 24 or 36 months. Most LG employees receive appointments for 12 months; only 13 LG employees had extended long-term appointments at the time of the hearing. Initial appointments to LG positions may be extended for up to 5 years. Whenever an LG employee accepts a new appointment at another consolidated office or liquidation site, the 5-year period for extension starts again. Decision at 3-4.

Of the approximately 3,500 LG employees employed at the time of the hearing, 880 have been reappointed after their initial 12-month appointment, and more than two-thirds of the LG employees have been extended for over 2 years. Moreover, 470 LG employees have been employed for longer than 4 years. The record also contained evidence that some GG employees have converted to LG status and that some LG employees have converted to GG status. For example, in 1987, 130 LG employees converted to GG status. Decision at 4.

Both LG and GG employees work at DOL regional and consolidated offices and attend bank closings. The Regional Director found that:

LG employees perform similar work, have essentially the same occupational classifications, and employee benefits, share common supervision, performance plans, training and working conditions, are compensated for their travel and per diem expenses at the prevailing rate, and have the same pay scale, and compensation system as GG employees. LG employees also are covered by the same personnel policies and practices as GG employees, including those with regard to discipline, annual leave, sick leave, and compensatory time. The evidence further established that LG employees work side-by-side with GG employees in carrying out the mission of the DOL.

Decision at 4.

The Regional Director also found some differences between LG and GG employees. For example, LG employees with long-term and extended long-term appointments are excluded from the FDIC Savings Plan, Merit Promotion Plan, adverse action procedures and reimbursement of certain relocation expenses. Further, only LG employees with extended long-term appointments are covered by the Federal Retirement Systems and are eligible for Federal Health and Life Insurance Plans. Decision at 4-5.

FDIC claims that its need for temporary LG staff will decrease. FDIC projects that the number of failed banks will decline and that its new asset disposal program will handle the failed banks' assets. FDIC plans to reduce the number of LG employees by approximately 2,300 by 1991, when its DOL staff will consist of 2,000 permanent employees. Decision at 5.

The Regional Director concluded that the "LG employees possess a sufficient expectancy of continued employment to warrant their inclusion in the petitioned unit." Decision at 5. The Regional Director found that the "decrease or eventual elimination of the LG employee complement is speculative depending on the accuracy of FDIC's business projections." Id. The Regional Director also found that FDIC projected that a "substantial complement of LG employees will continue to be employed for a considerable period of time, until at least 1991." Decision at 6. The Regional Director noted that the current LG employees have been employed by FDIC for substantial periods, and many have had their appointments extended for additional periods or have been converted to permanent status. Decision at 5.

The Regional Director concluded that the claimed nationwide unit of employees, including LG employees, located in the DOL field offices, is composed of employees who share a clear and identifiable community of interest. The Regional Director found the unit to be appropriate for the purpose of exclusive recognition under the Statute and directed an election. Because the unit includes professional employees, the Regional Director directed that a separate election be conducted to determine whether the professional employees wish to be included in the unit with nonprofessional employees and whether they desire representation by the Union. Decision at 7.

III. Application for Review

The FDIC asserts that the application for review should be granted in this case because:

(1) a substantial question of law and policy is raised due to the absence of Authority precedent on the question of certifying elections in units which are contracting due to a fundamental change in the activity's operations and, as a result of which an entire category of employees and related job classifications are in the process of complete elimination; and

(2) the Regional Director was clearly in error when he held that temporary, excepted service employees have a reasonable expectancy of continued employment; that temporary employees share a clear and identifiable community of interest with permanent career employees; that the inclusion of temporary employees in the claimed unit would promote effective dealings with, and efficiency of operations of the FDIC; and that FDIC's programmed elimination of all LG positions as part of its business realignment was speculative.

Application for Review at 3.

The FDIC asserts that the holding of an election in a unit which is contracting in size "is inimical to the purposes of the Statute[.]" Application for Review at 4. The FDIC argues that in the claimed unit of 4,300 employees (800 GG and 3,500 LG employees), a majority of the employees (2,300 of the 3,500 LG employees) will soon be eliminated yet they could dictate the results of an election. Because of the changes, FDIC argues that "the appropriateness of that unit should be determined on the basis of the unit as it will be, not as it once was or as it appears to be during a temporary, transition phase." Id.

IV. Opposition to the Agency's Application for Review

The Union asserts that the FDIC has not met the standards for granting review set forth in section 2422.17(c) of the Authority's Rules and Regulations. Opposition at 11, 13-14. The Union argues that the "record evidence" does not support the FDIC's claims that the Regional Director's Decision is not based on Authority precedent and that the Regional Director erroneously decided a substantial factual issue. Opposition at 11. The Union maintains that the Regional Director's Decision is "squarely based" on Authority precedent. Opposition at 14. The Union states that the Authority has held on numerous occasions that temporary employees are entitled to representation and that this case does not present any new or unique questions which would cause the Authority to deviate from its own precedent. Id.

Regarding the question of the continuation of certain Agency operations, the Union asserts that the claim was raised before the Regional Director but "the Agency submitted little or no evidence to substantiate their bare assertions[.]" Id. Therefore, the Union argues, the Regional Director properly rejected the FDIC's assertions as speculative. The Union asserts that the FDIC is merely disagreeing with the Regional Director's findings and attempting to reargue the facts. Opposition at 15.

V. Analysis and Conclusion

We find that no compelling reasons exist within the meaning of section 2422.17(c) of our Rules and Regulations for granting review of the Regional Director's Decision. In agreement with the Regional Director, we find that an election by secret ballot should be conducted among the employees in the described unit, including the LG employees. Therefore, we deny the application for review.

A. Authority Precedent

The FDIC contends that: (1) this case involves a situation in which an entire category of employees is being eliminated; (2) the Authority has not addressed this situation before; and (3) the absence of Authority precedent addressing this situation raises a substantial question of law and policy. We find that FDIC's contention does not warrant our granting of the application for review.

According to FDIC's plan, the decrease in the number of LG employees is projected to be gradual, and at least 715 LG employees are projected to continue to perform their duties into 1991. Application for Review at 17 n.15, 18; Opposition at 27. The Regional Director found that "by FDIC's own projections . . . a substantial complement of LG employees will continue to be employed for a considerable period of time, until at least 1991." Decision at 6. The Regional Director found that "the decrease or eventual elimination of the LG employee complement is speculative depending on the accuracy of FDIC's business projections[,]" and rejected FDIC's argument that "LG employees have no expectation of continued employment[.]" Decision at 5. The Regional Director concluded that "LG employees possess a sufficient expectancy of continued employment to warrant their inclusion in the petitioned unit." Decision at 5 (footnote omitted).

Based on the record before us, we agree with the Regional Director's conclusion that the LG employees possess a sufficient expectation of continued employment and should be included in the unit. This is not a case in which a large proportion of a claimed unit is facing imminent elimination. Because the entire category of LG employees was not being eliminated at the time of the hearing, and a large complement of LG employees would continue to work for FDIC for some time, the Regional Director correctly considered the LG employees to be temporary employees. We agree with the Regional Director that this case involves the application of Authority precedent concerning whether temporary employees (employees without permanent appointments) should be included in a unit. There was no need for the Regional Director to address what factors should be taken into account in a situation in which a large proportion of positions in a claimed unit was being eliminated immediately or within a specified time in the near future, and there is no need for our consideration of that issue at this time.

The FDIC compares this case to private sector cases in which the National Labor Relations Board (the NLRB) did not order an election where certain types of employees were being eliminated at the time of representation proceedings. Application for Review at 16. The facts in this case differ significantly from situations considered by the NLRB in the cases cited by the FDIC.

In United Transports, Inc., 107 NLRB 1150 (1954), the NLRB found that after the employer's reorganization and change in job classifications, five of six employees in the claimed unit had become supervisors. Noting "the radical change in job classifications effected by the [e]mployer's reorganization [and] the new job assignments resulting therefrom," 107 NLRB at 1152, the NLRB vacated its original decision and direction of election and ordered a new election in a revised unit resulting from the reorganization.

In Douglas Motors Corp., 128 NLRB 307 (1960), the NLRB dismissed a representation petition after finding that "[t]he evidence indicates with sufficient definiteness that a fundamental change in the nature of the Employer's business operations is presently in process and is expected to be accomplished [within 2 months]." 128 NLRB at 308. The NLRB found that the company had already subcontracted a major portion of its work, that 75 percent of the employees were being eliminated, and that the nature of the remaining operation would be changed.

In Plum Creek Lumber Co., Inc., 214 NLRB 619 (1974), a company had hired electricians for the construction of a new plant. The representation hearing was held a few weeks before completion of construction of the plant. When the company's brief on review was filed, the plant was 60 percent operational and all construction was to be completed within 2 to 3 weeks. After completing construction, only 3 electricians (18 percent of the petitioned unit of electricians) would continue to be employed in a maintenance capacity. The NLRB dismissed the petition because substantial changes in the size and nature of the unit were imminent at the time of the directed election.

In the NLRB cases relied upon by the FDIC, the employers had definite plans to significantly reduce the numbers of positions and/or employees in the bargaining unit. Moreover, in the NLRB cases, the changes in the composition of the private sector units were to be completely effectuated within 2 months at most. By contrast, the elimination of the LG employees in this case is intended to be accomplished over an extended period (approximately 2 years) and is not projected to be completely effectuated until 1991, according to the FDIC's plan. During the same period, the FDIC also plans to add an additional 1200 GG employees to its staff. While there is no guarantee that the LG employees will receive the GG appointments, the record indicates that many LG employees have converted to GG status. For example, in 1987, 130 LG employees in the Chicago DOL office were converted as a group to GG status. Decision at 4; Opposition at 11. Therefore, the facts in this case are distinguishable from the NLRB's precedent and do not raise a substantial question of policy or law which the Regional Director was required to consider or which the Authority needs to address in this decision.

In summary, the FDIC's contention that a substantial question of law or policy exists due to the absence of Authority precedent regarding the elimination of types of employees does not provide a basis for granting review of the Regional Director's Decision.

B. The Regional Director's Decision Does Not Contain Substantial Errors

The FDIC also contends that the Regional Director's Decision is based on a "false factual premise" and, therefore, contains several substantial errors. Application for Review at 18. This contention constitutes nothing more than the FDIC's disagreement with the conclusions of the Regional Director regarding inclusion of temporary employees in a bargaining unit. The FDIC also asserted that the Regional Director erred in finding that the projected elimination of the LG employees was "speculative." Application for Review at 18-20. We disagree and have determined that the projected elimination of the LG employees did not immediately affect the claimed unit. This issue has been addressed above and need not be repeated.

The Regional Director found that the claimed unit was appropriate under the criteria set forth in the Statute. We find that the Regional Director's Decision is supported by the record and is consistent with the Authority's precedent regarding the inclusion of temporary employees in a bargaining unit. The Authority has found that temporary employees serving appointments of shorter duration than the LG employees in this case should be included in bargaining units with other permanent employees. See U.S. Department of the Treasury, United States Mint, 32 FLRA 508 (1988) (only those temporary employees with appointments of less than 700 hours were excluded from the unit).

In U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Northeast Region, 24 FLRA 922 (1986), temporary intermittent observers who were given 1-year appointments, which could be extended for an additional 3 years, were found to be included in a unit with permanent part-time observers. The LG employees in this case also have 1-year appointments which may be renewed, and the LG employees have full-time assignments which afford the LG employees substantial contact with the permanent employees.

The Authority has also found that temporary employees who (1) held 6-month appointments which could be renewed; (2) shared the same general supervision, work schedules, office conditions and common working environment with other bargaining unit employees; (3) had regular and frequent contacts