35:0576(65)RO - - FTC and AFGE Local 2211 - - 1990 FLRAdec RP - - v35 p576



[ v35 p576 ]
35:0576(65)RO
The decision of the Authority follows:


35 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL TRADE COMMISSION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2211

(Labor Organization/Petitioner)

3-RO-90006

ORDER GRANTING APPLICATION FOR REVIEW

AND REMANDING CASE

April 17, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review of the Regional Director's Decision and Direction of Election filed by the Agency under section 2422.17(a) of the Authority's Rules and Regulations. The Regional Director found that a unit petitioned for by the Labor Organization/Petitioner (Union), consisting of all unrepresented nonprofessional employees of the Agency, was appropriate for a self-determination election under the Statute and directed an election in that unit. The Union did not file an opposition to the application for review.

For the following reasons, we grant the application for review and remand the case to the Regional Director to take further appropriate action as directed.

II. Background

On December 17, 1980, the Union filed a petition in Case No. 3-RO-91, seeking an election among the Agency's nonprofessional and technical employees. At that time, the Agency claimed that approximately 143 positions should be excluded from the unit. After several meetings, the parties, with the approval of the Regional Director, agreed to the inclusion or exclusion of all positions at issue. The parties also agreed that temporary employees should be excluded from the unit. An election was held and, after numerous challenged ballots were resolved, the Union was certified as the exclusive bargaining representative for a unit of all nonprofessional and technical full and part-time employees of the Federal Trade Commission located in the Washington, D.C. area.

On July 1, 1981, the Union filed a Clarification of Unit Petition (CU) seeking to clarify its certified unit by adding the incumbents of approximately 123 positions. The Union had agreed prior to the election that these positions were excluded from the unit because the incumbents were supervisors, management officials, or confidential employees.

The Authority found in Federal Trade Commission, 15 FLRA 247 (1984) (FTC) that the Union's CU petition should be dismissed. The Authority stated:

[A] CU petition filed after completion of the certification process will not ordinarily be permitted to overturn the results of voluntary pre-election agreements entered into by the parties with the approval of the Regional Director, absent at the very least, a showing that the duties or functions of established job classifications covered in such agreements have undergone meaningful change after the unit was certified.

Id. at 248. The Authority concluded that there was "no showing that the duties and functions of the positions at issue have changed in the time between AFGE's certification as exclusive representative and its filing of the CU petition." Id. at 249.

On December 2, 1987, the Union filed a CU petition in Case No. 3-CU-80005, seeking to include one head secretary in the bargaining unit. The Regional Director dismissed the petition. The Regional Director found that the Authority's decision in FTC precluded the "inclusion of the disputed position in the existing unit through a clarification of unit petition." Decision at 3. The Regional Director noted that: (1) the position of Head Secretary existed at the time the unit was certified; (2) the position was historically excluded from the unit; and (3) the job duties of the position had not been meaningfully altered since the certification. He further noted that the CU petition "raised a question concerning representation which may not be resolved through a clarification of the existing unit but only by a petition seeking an election." Id. No application for review of the Regional Director's dismissal of the CU petition was filed with the Authority.

On April 18, 1989, the Union filed the RO petition which is now before us. The Union seeks an election to add to its existing unit of FTC employees a residual unit of approximately 60 unrepresented nonprofessional employees including lead secretaries, other lead employees, and temporary employees.

III. Regional Director's Decision

The Regional Director found that the Union has raised a question concerning representation for a residual unit of nonprofessional employees at the Agency. He noted the parties' stipulations that (1) the petitioned-for employees share a community of interest among themselves and with the employees in the existing unit, and (2) the claimed unit consists of all unrepresented employees who have been historically excluded from the existing unit. The Regional Director noted further that the Agency agreed that should an election be directed, 29 temporary employees and 21 employees in secretarial or lead positions are eligible for inclusion in any unit which is found appropriate.

The Regional Director concluded that the Authority's decision in FTC precluded the Union from using a CU petition to include the petitioned-for employees in the existing unit. The Regional Director further found that the "employees involved herein were denied the right to participate in the previous election, without formal Authority determination of their eligibility, because the parties stipulated to a unit which did not include them." Decision at 4. Finally, the Regional Director found that:

While the parties' prior pre-election agreement as to unit eligibility was held by the Authority to be a bar to a subsequent clarification of unit proceeding attempting to add the previously excluded employees, in my view neither the parties' pre-election agreement, nor the Authority's decision in Federal Trade Commission, . . . should operate to bar the claimed employees from participating in a self-determination election in any other appropriate unit if they are otherwise eligible pursuant to the Statute.

Id. at 4-5.

Citing Ladish Co., 176 NLRB 1101 (1969) and Lufkin Foundry and Machine Company, 174 NLRB 556 (1969), (Lufkin Foundry), the Regional Director concluded that the proper procedure to determine the issue of the inclusion in the unit of the employees involved herein is an election. The Regional Director noted that: (1) the employees' positions were in existence prior to the 1981 certification of the existing unit; (2) the claimed employees have been historically excluded from the unit and coverage of the collective bargaining agreement negotiated subsequent to the certification; and (3) no allegation has been made that the employees' positions have substantially changed since the certification. Accordingly, the Regional Director found that the petitioned-for unit was appropriate for a self-determination election under the Statute and that the residual unit would promote effective dealings and efficiency of Agency operations.

IV. Application for Review

The Agency seeks review of the Regional Director's decision on the grounds that the decision raises a substantial question of law and policy because of the absence of Authority precedent.

The Agency contends that the Regional Director's finding that the Union has raised a question concerning representation is erroneous. The Agency claims that the petition does not raise a question concerning representation because: (1) the positions covered by the petition were in existence prior to the date that the existing unit was certified; and (2) any question concerning the status of those positions was resolved in the parties' 1981 agreement that the positions in question should be excluded from the unit because the incumbents were supervisors, management officials, or confidential employees.

The Agency argues that the 1981 pre-election agreement was reviewed and approved by the Regional Director. It also asserts that in FTC, the "Authority also reviewed the agreement and held that it was valid and binding on the parties absent some showing of change in the duties and functions of the positions." Application at 9. The Agency notes that in 1988, the Regional Director found that there had been no change in the duties of the head secretaries so as to permit their inclusion in the existing unit. Federal Trade Commission, Case No. 3-CU-80005 (1988). The Agency claims that "the positions in dispute historically have been excluded from the unit because they are supervisory/managerial or confidential." Id. The Agency further claims that there have been no changes in the duties of the positions that would now support their inclusion in the unit.

The Agency argues that the "disputed positions do not constitute a residual unit for which a representation election would be appropriate." Id. at 11. Citing U.S. International Trade Commission, New York Office, 8 FLRA 283 (1982) (ITC), the Agency contends that a "residual unit is normally found to consist of eligible, unrepresented employees in an organization where the bulk of employees are represented." Id. at 9-10 (emphasis in original). The Agency claims that unlike ITC, the instant case does not involve "discrete classifications of employees who are eligible for representation but who historically have been excluded from an existing bargaining unit." Id. at 10.

The Agency also alleges that there is no separate community of interest between the employees in the petitioned-for unit and the existing unit. The Agency notes that although the Regional Director found that based on the parties' stipulation, the employees in the disputed positions shared a community of interest, he did not discuss the fact that the "parties further stipulated that 'similarities shared by the employees in the claimed unit are also shared by the employees in the claimed unit with the employees in the existing unit.'" Id. at 11. The Agency alleges that the "disputed positions cannot constitute a residual group that could be separated from the existing unit." Id. at 12. In support of its position, the Agency cites Antitrust Division, Department of Justice, 16 FLRA 297 (1984) (Antitrust Division) and National Institute of Child Health and Human Development, National Institutes of Health, 9 FLRA 526 (1982) (NIH).

Finally, the Agency contends that a separate unit will not promote effective dealings or efficiency of Agency operations because the positions in the proposed unit are identical to those included in the existing unit. According to the Agency, the proposed unit would lead to fragmentation that would be inconsistent with the Statute.

The Agency claims that Lufkin Foundry and Ladish Co., cited by the Regional Director, are distinguishable from the instant case. The Agency argues that in Lufkin Foundry: (1) there had never been a resolution of the status of the disputed positions prior to the union's petition for unit clarification, and (2) employees occupying the same classification were excluded as a distinct group. The Agency maintains that Ladish Co. is distinguishable because that case involved disputed employees in discrete classifications that had been excluded from the existing unit. The Agency asserts that in the instant case, the parties agreed to the status of the disputed positions and the head secretaries and lead employees were not treated as a group.

The Agency argues that a CU petition, rather than an RO petition, is the appropriate procedure for determining the bargaining unit status of particular employees or positions. In support of its position, the Agency cites the following cases: Headquarters, U.S. Army Aviation Systems Command, St. Louis, Missouri, 2 A/SLMR 279 (1972); Congressional Research Employees Association and the Library of Congress, 3 FLRA 737 (1980) (Library of Congress); and Department of the Army, Corpus Christi Army Depot, 10 FLRA 545 (1982) (Corpus Christi Army Depot). The Agency contends, in particular, that the status of the temporary employees also should be resolved by a CU petition. In support of its position, the Agency cites the Authority's decision in U.S. Department of the Treasury, United States Mint, 32 FLRA 508 (1988) (U.S. Mint), where the Authority found that a CU petition was the proper procedure to exclude temporary employees from an existing unit.

However, the Agency argues that the parties are bound by res judicata as to whether head secretaries, lead employees, and certain other employees are to be included in the existing unit. The Agency asserts that the Authority (in FTC) and the Regional Director (in Case No. 3-CU-80005) held that head secretaries, lead employees, and certain other employees were properly excluded from the existing unit because they were supervisory, managerial, or confidential. The Agency also notes that, in the instant case, the Regional Director found that there is no allegation that the duties of employees in the disputed positions have changed since the original certification. Accordingly, the Agency claims that the previous determinations are binding in the present case. The Agency asserts, however, that because the Union "has not sought to represent temporary employees at any time prior to filing the instant petition, a CU petition covering temporary employees would not be barred by res judicata." Id. at 27.

V. Analysis and Conclusions

We conclude that the Agency has established compelling reasons, within the meaning of section 2422.17(c)(1)(i) and (ii) of the Authority's Rules and Regulations, for granting the application for review of the Regional Director's decision. We find that the decision that the petitioned-for unit is a residual unit and, thus, appropriate for a self-determination election raises a substantial question of law because of its departure from Authority precedent. We also find that the issue of the proper procedure to determine the issue of the inclusion of the employees in the petitioned-for unit into the existing unit raises a substantial question of law or policy because of the absence of Authority precedent.

A. The Regional Director Erred In Finding That The Petitioned-For Unit Is An Appropriate Residual Unit

In Immigration and Naturalization Service, 12 FLRA 309 (1983) (INS), the Authority found that a petitioned-for unit of professional employees, including attorneys, of the Immigration and Naturalization Service (INS) constituted an appropriate residual unit. The Authority noted that the petitioned-for unit was a functional unit of all the INS' professional employees and comprised a unit of all of the potentially eligible employees within the INS who were not already included in existing units. The Authority found that the employees in the petitioned-for unit shared a clear community of interest and that the unit would promote effective dealings and efficiency of agency operations. The Authority rejected INS' claim that the INS attorneys shared a community of interest with other attorneys of the Department of Justice, noting, among other things, that INS' recommendations for hiring attorneys had never been disapproved and the day-to-day direction of attorneys was accomplished within INS' line-of-command authority. See also ITC.

Applying the rationale of INS to the facts of this case, we note that the employees in the petitioned-for unit: (1) do not constitute a separate functional group or discrete classification within the Agency; and (2) have the same working conditions as the employees in the existing unit. Further, we find that the head secretaries and lead employees do not constitute a group of employees who have been historically excluded from the existing unit but, rather, were excluded from the unit because they were supervisors, management officials, or confidential employees. Consequently, we conclude that the employees in the petitioned-for unit do not constitute an appropriate residual unit.

As we find that the employees in the petitioned-for unit do not (1) constitute a separate functional group or discrete classification within the Agency, and (2) do not share a community of interest separate from the employees in the existing unit, we conclude that the petitioned-for unit is not appropriate for exclusive recognition under section 7112(a)(1) of the Statute. See Antitrust Division and NIH. Accordingly, the Regional Director erred in directing an election on the basis that the petitioned-for unit was "appropriate for a self determination election under the Statute and that such a residual unit will promote effective dealings and efficiency of agency operations." Regional Director's Decision at 4.

B. Procedures For Determining Unit Eligibility

Although an election may not be directed among employees in the petitioned-for unit on the basis that the unit constitutes an appropriate residual unit, the question remains as to the appropriate procedure or procedures for determining the unit status of these employees. For the following reasons, we conclude that, depending on facts which are not in the record before us, a CU and/or an RO petition may be the appropriate procedure.

1. Unit Clarification (CU) Petition

A CU petition is the proper procedure to clarify, consistent with the parties' intent, inclusions or exclusions from a unit after the basic question of representation has been resolved. See U.S. Mint; Corpus Christi Army Depot; and Library of Congress. Accordingly, when the issue is raised as to whether an individual is included in an existing unit, a CU petition should be filed pursuant to section 2422.2(c) of the Authority's Rules and Regulations. Library of Congress, 3 FLRA at 740.

In FTC, the Authority held that in order to include employees who had originally been excluded from the existing unit by a voluntary pre-election agreement entered into by the parties with the approval of the Regional Director, the Union had to show that the duties or functions of those established positions or job classifications had undergone meaningful changes after the unit was certified. The Authority concluded that the Union had not made such a showing of meaningful changes and, therefore, dismissed the Union's CU petition.

We affirm the Authority's decision in FTC that, in the absence of a demonstration that meaningful changes have occurred in the job duties or functions and/or job circumstances of the affected employees, a CU petition is not appropriate for including employees who were excluded from the original certification pursuant to a voluntary pre-election agreement approved by the Regional Director because they were temporary employees, supervisors, management officials or confidential employees. See also NLRB v. Mississippi Power & Light Company, 769 F.2d 276, 279 (5th Cir. 1985) ("The theory of unit clarification, insofar as adding positions to the collective bargaining unit, is that the added employees functionally are within the existing bargaining unit but had not formally been included due to changed circumstances (for example evolving or newly created jobs).") (citations omitted); Union Electric Company, 217 NLRB 666, 667 (1975) ("Unit clarification . . . is appropriate for resolving ambiguities concerning the unit placement of individuals who . . . come within . . . an existing classification which has undergone recent, substantial changes . . . so as to create a real doubt as to whether the individuals in such classification continue to fall within the category--excluded or included--that they occupied in the past."). Accordingly, unless the Union can now show that, since the original certification, there have been meaningful changes in the duties or functions of the head secretaries and lead employees or meaningful changes in the job circumstances and/or functions of the temporary employees, a CU petition is not the proper procedure to include these employees in the existing unit.

2. Representation (RO) Petition

The Authority has not addressed previously whether, or to what extent, a representation petition is appropriate to include in a unit employees who (1) were excluded from a union's original certification pursuant to a pre-election agreement approved by the Regional Director, and (2) are not part of an appropriate residual unit or any other appropriate unit. This issue has, however, been addressed by the National Labor Relations Board (NLRB). Inasmuch as there is an absence of Authority precedent concerning this issue, it is both useful and appropriate to examine private-sector precedent. See, for example, U.S. Department of Transportation, U.S. Coast Guard Finance Center, Chesapeake, Virginia, 34 FLRA 946 (1990).

In The Washington Post Company, 256 NLRB 1243 (1981), the NLRB dismissed the union's Unit Clarification (UC) Petition seeking to include in the existing unit, 37 individuals employed in confidential secretary classifications. The NLRB found that prior to the election in the existing unit, the parties had agreed to exclude the confidential secretaries because of their alleged confidential status. A year after the existing unit was certified, the union filed a UC petition alleging that the secretaries' duties had changed significantly since their exclusion from the unit so that they were no longer confidential employees. The union also provided evidence that, at the time of the pre-election agreement, its representatives may have mistakenly believed that the confidential secretaries were confidential employees.

The NLRB found that the union did not meet its burden of establishing significant changes "for altering the unit placement of the confidential secretaries who have been excluded historically from the unit by agreement of the parties." Id. at 1245. The NLRB noted that whether the confidential secretaries' exclusion was based on mistake or acquiescence, rather than express consent, was immaterial for purposes of deciding whether clarification is appropriate. The NLRB concluded that the union's UC petition raised a question concerning representation which could not be resolved in a unit clarification petition. See also Mount Sinai Hospital, 233 NLRB 507 (1977) (NLRB directed an election among a group of unrepresented employees who shared a sufficient community of interest with employees in existing unit to "entitle them to be represented by the Petitioner in the currently established collective-bargaining unit, if they so desire.") (citation omitted).

We believe that the NLRB's approach in this situation would effectuate the policies and purposes of the Statute. This approach would enable employees who were erroneously excluded from a union's original certification by a pre-election agreement and, therefore, could not be included appropriately in an existing unit pursuant to a CU petition, to exercise their rights under section 7102 of the Statute to "form, join, or assist any labor organization, or to refrain from such activity" and to "engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under [the Statute]." To hold otherwise would unreasonably deprive employees who are not part of an appropriate residual unit or any other appropriate unit, and whose unit status may not be determined through a CU petition, of these rights.

Accordingly, we adopt the NLRB approach in this situation and hold that a union may, by filing an RO petition, seek to represent employees who were excluded from an original certification pursuant to a voluntary pre-election agreement approved by the Regional Director. As with RO petitions filed in other circumstances, a regional director must, as necessary, determine the employees' unit status and in addition, must determine whether all applicable requirements, such as those concerning showings of interest, have been satisfied. If the regional director determines that the applicable requirements have been satisfied, the regional director should direct an election to determine whether the petitioned-for employees (1) desire to be represented by the certified exclusive representative in the existing unit or (2) desire to remain unrepresented.

C. Application of Standards in this Case

The Regional Director directed an election on the basis that the petitioned-for unit constituted an appropriate residual unit. As discussed above, this conclusion departed from Authority precedent. Also, as discussed above, the petitioned-for unit, including head secretaries, lead employees, and temporary employees, or any individual employees in the petitioned-for unit, may not be included in the existing unit pursuant to a CU petition unless the Union demonstrates that there have been meaningful changes in the job duties or functions of the head secretaries and lead employees or meaningful changes in the job circumstances and/or functions of the temporary employees since the time of the certification. In view of the Regional Director's previous decision in 3-CU-80005, however, it is not clear whether the Union filed an RO petition in this case because it does not contend that there have been meaningful changes in the duties of the petitioned-for employees, as required by a CU petition, or because it believed that a CU petition was not appropriate because of the parties' pre-election agreement. Finally, the Authority has not previously addressed the filing of RO petitions in cases such as the one now before us.

For all of these reasons, we will remand this case to the Regional Director. On remand, the Union should be given an opportunity, upon request, to demonstrate that the head secretaries and lead employees should be included in the existing unit because of meaningful changes in their job duties or functions and temporary employees should be included in the existing unit because of meaningful changes in their job circumstances and/or job functions. The Union's RO petition, with respect to the employees of the petitioned-for unit whose eligibility for inclusion in the existing unit cannot be determined by the above criteria, should be processed by the Regional Director consistent with procedures applicable to o