35:0625(69)CU - - Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, KY and NFFE Local 1482 - - 1990 FLRAdec RP - - v35 p625
[ v35 p625 ]
The decision of the Authority follows:
35 FLRA No. 69
FEDERAL LABOR RELATIONS AUTHORITY
DEFENSE MAPPING AGENCY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DECISION AND ORDER REMANDING CASE
April 24, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on review of the Acting Regional Director's Decision and Order on a Petition for Clarification of Unit (CU) filed by the Union. The Union sought to clarify the bargaining unit status of approximately thirty GS-1370-11 Cartographer Project Leaders and GS-1370-12 Cartographer Project Directors.
The Acting Regional Director found that the Cartographer Project Leaders and Cartographer Project Directors should be included in the bargaining unit. The Activity filed an application for review only as to the Acting Regional Director's determination that the Project Leaders should be included in the unit. We granted review in Defense Mapping Agency Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 34 FLRA 407 (1990), pursuant to section 2422.17(c)(1) of our Rules and Regulations, because it appeared that substantial questions of law or policy were raised because of the absence of, or departure from, Authority precedent with respect to:
Whether a petition for clarification of unit seeking to include in a unit, without an election, employees in positions which have been previously specifically excluded from a certified bargaining unit under the circumstances presented in this case, is a permissible process for seeking to add those employees to a unit.
We permitted the parties to submit briefs on the issue upon which review was granted. Both parties filed briefs.
For the reasons stated below, we conclude that we must remand this case to the Regional Director for further appropriate action as directed.
II. Background and Acting Regional Director's Decision
In 1969, the Activity granted the Union recognition for a unit of nonprofessional employees. In 1979, the Union filed a petition to add professional employees to the existing unit. As a result of that petition, the Union was certified as the exclusive representative of a unit including professional and nonprofessional employees.
On May 5, 1982, the Union filed a clarification of unit petition to include in the unit certain Cartographers, GS-1370-11, who occupied positions as "Project Leaders." A certification was issued on May 20, 1982, excluding "Project Leaders" from the unit. The existing unit is described as follows:
Inclusions: All professional and nonprofessional employees of the Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky.
Exclusions: Project leaders, employees engaged in personnel work in other than a purely clerical capacity, and management officials, confidential employees, and supervisors as defined in the Statute.
On September 8, 1988, the Union filed the clarification of unit petition which resulted in the application for review in this case. Before the Acting Regional Director, the Union argued that the Cartographer Project Leaders are neither supervisors nor management officials, but rather are first-level quality assurance personnel.
The Activity took the position that the Project Leaders should be excluded from the unit because they: (1) are supervisors and/or management officials within the meaning of the Statute; and (2) do not share a community of interest with the employees in the bargaining unit. The Activity also contended that the Project Leaders have been excluded from the unit by mutual agreement.
The Acting Regional Director found that the Cartographer Project Leaders are not management officials within the meaning of section 7103(a)(11) of the Statute. The Acting Regional Director found that the incumbents of those positions do not exercise any duties or responsibilities which require or authorize them to formulate, determine, or influence the policies of the Activity. She found that these employees are highly trained professionals who assist in implementing, as opposed to shaping, the Activity's policies and are responsible for accomplishing project objectives within guidelines established by the Activity. The Acting Regional Director concluded that "no circumstances exist which would warrant excluding the incumbents based on a conflict or apparent conflict of interest or due to any managerial functions." Decision at 7.
The Acting Regional Director also determined that the Project Leaders are not supervisors within the meaning of section 7103(a)(10) of the Statute. She found that the Project Leaders' authority to direct employees assigned to a project is limited to the technical aspects of the project. She also found that questions with respect to discipline, overtime, staffing of projects or assignments, performance appraisals, or employee grievances are not within the Project Leaders' discretion.
With respect to the Activity's contention that the Project Leaders have been excluded from the unit by mutual agreement, the Acting Regional Director stated as follows:
At the time of the professional election in 1979, these Cartographers were not eligible to vote in the representation proceedings. I reject the contention that I am bound to accept as determinative in this case any agreement by the parties concerning the exclusion of employees from the bargaining unit. In making decisions involving appropriate units and eligibility, the Authority will resolve such matters based upon evidence which reflects the actual duties as performed by the incumbents. Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado,  FLRA 52 (1981).
Decision at 3 n.2.
The Acting Regional Director also found, in accordance with the requirements of section 7112(a)(1) of the Statute, that the Cartographer Project Leaders share a clear and identifiable community of interest with the other employees in the existing unit and their inclusion in the unit will promote effective dealings with, and efficiency of, the Activity's operations.
Accordingly, based on the above findings, the Acting Regional Director included the Cartographer Project Leaders in the bargaining unit represented by the Union.
III. Positions of the Parties
A. Activity's Position
The Activity asserts that the Project Leaders have been excluded from the unit for the past 10 years and that "[t]he duties and responsibilities of Project Leaders have not materially changed during the period of recognition." Brief at 2. The Activity contends that the inclusion or exclusion of Project Leaders from the bargaining unit raises a question of representation within the meaning of section 7111(b)(2) of the Statute. It maintains that section 7111(b)(2) provides that "the Authority must conduct a secret ballot election to resolve any question of representation raised as a result of a CU Petition." Brief at 3. The Activity argues that filing a clarification of unit petition to include employees who were initially excluded from representation elections violates the statutory requirement of selecting an exclusive representative by majority vote of employees in an appropriate unit. Id.
The Activity states that the Authority has dismissed clarification of unit petitions in National Guard Bureau, Massachusetts Air National Guard, Barnes Municipal Airport, 4 FLRA 83 (1980) and Federal Trade Commission, 15 FLRA 247 (1984) where certain employees had been previously excluded by either mutual consent or pre-election agreement. The Activity asserts that the use of clarification of unit petitions to resolve representation questions is "contrary to the intent and spirit of the Statute." Brief at 3. In sum, the Activity argues that the petition in this case "raises a question of representation in that it attempts to include in an existing certified bargaining unit employees/positions which by mutual agreement of the parties, approved by the Regional Director, had been excluded from participation in the representation election and subsequently excluded from the [c]ertified [b]argaining [u]nit." Id. at 4.
B. Union's Position
The Union contends that the Authority should affirm the Acting Regional Director's decision. The Union argues that the only reason the Activity favors a representation election over the filing of a clarification of unit petition to determine the unit eligibility of Project Leaders is because the Activity lost its case before the Acting Regional Director. The Union asserts that the Activity is attempting to get "two bites of the apple" by taking the position that an election is warranted after getting an unfavorable decision from the Acting Regional Director. Brief at 3.
IV. Analysis and Conclusion
We granted review in this case to consider whether a CU petition seeking to include in a unit, without an election, employees in positions which have been previously specifically excluded from a certified bargaining unit, is a permissible procedure for seeking to add those employees to a unit.
In Federal Trade Commission, 35 FLRA No. 65 (1990) (FTC), slip op. at 8-10, we set out the standards to be used in determining whether a CU petition or a representation (RO) petition is the appropriate procedure to use for determining unit eligibility questions in circumstances similar to the instant case. With regard to the filing of CU petitions, we determined that 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. We also affirmed the Authority's decision in Federal Trade Commission, 15 FLRA 247 (1984) that, in the absence of a demonstration that affected employees have undergone meaningful changes in their job duties or functions, a CU petition is not appropriate for including employees who were specifically excluded from the original certification pursuant to a voluntary pre-election agreement approved by a Regional Director of the Authority.
In FTC, slip op. at 10, we also adopted the NLRB's approach that, in situations where unrepresented employees are excluded from an original certification pursuant to a voluntary pre-election agreement and can not be included appropriately in an existing unit pursuant to a CU petition, a union may file an RO petition seeking to represent them.
The record before us lacks the information necessary for us to apply the principles stated in FTC and determine if a CU petition is the appropriate petition to file in the instant case. The record does not demonstrate whether ther