35:1311(154)RO - - Air Force, Edwards AFB, CA and Sport Air Traffic Controllers Organization - - 1990 FLRAdec RP - - v35 p1311
[ v35 p1311 ]
The decision of the Authority follows:
35 FLRA No. 154
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
EDWARDS AIR FORCE BASE, CALIFORNIA
SPORT AIR TRAFFIC CONTROLLERS ORGANIZATION (1)
ORDER DENYING APPLICATION FOR REVIEW
May 31, 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 filed by the Activity under section 2422.17(a) of the Authority's Rules and Regulations seeking review of the Regional Director's Decision and Direction of Election. The Regional Director (RD) found that a unit of Air Traffic Control Specialists employed at Edwards Air Force Base was appropriate and directed an election in that unit. The RD also found that three Electronics Technicians who are assigned to the same organizational subdivision and work with the Air Traffic Control Specialists should be included in the unit. The Union filed an opposition to the Activity's application.
For the following reasons, we deny the application.
II. Background and Regional Director's Decision
The Union filed a petition to represent a unit consisting of Air Traffic Control Specialists (GS-2152) (ATCSs) employed at Edwards Air Force Base. There are currently 15 nonsupervisory ATCSs employed at the Base. A hearing was conducted on the issue of the appropriateness of the proposed unit. On February 7, 1990, the RD issued a Decision and Direction of Election.
In his decision the RD found as follows: The ATCSs are in a job classification separate from all other employees at Edwards Air Force Base and in a specialized and distinct occupational field. The interaction between the ATCSs and other employees at Edwards Air Force Base is very limited and primarily is confined to three Electronics Technicians who are responsible for maintaining the equipment used by the ATCSs and who are in the same organizational subdivision as the ATCSs. The ATCSs work in an area of a building (Ridley Mission Control Test Center) common only to themselves and the three Electronics Technicians. With the exception of the three Electronics Technicians, the ATCSs' work processes are negligibly integrated with the rest of the employees at Edwards Air Force Base. While covered by the same Air Force personnel regulations as all other Air Force employees at Edwards, the ATCSs are subject to different retirement provisions and physical examination requirements than most of those employees. In view of the unique qualifications involved, the potential for movement by employees between ATCS positions and other positions at Edwards Air Force Base in a reduction-in-force (RIF) is slight. The working hours of the ATCSs are unique to them and the three Electronics Technicians.
The RD held that the ATCSs possessed a clear and identifiable community of interest distinct from other employees, with the exception of the three Electronics Technicians, at Edwards Air Force Base. He found that a unit consisting of the ATCSs would not impair or impede effective dealings and efficiency of operations and would not cause unnecessary fragmentation. The RD further found that the three Electronics Technicians should be included in the unit with the ATCSs based on common work hours and location, operational function, and supervision (the second-level supervisor of the ATCSs is the first-line supervisor of the three Electronics Technicians). The RD concluded that the three Electronics Technicians share a community of interest with the ATCSs and that their inclusion in a unit separate from the larger technician population would not cause unnecessary fragmentation. The RD did not include the three Electronics Technicians in the unit as described in the Direction of Election, however. In the Direction of Election the RD described the unit as follows:
INCLUDED: All non-supervisory, non-management civilian GS-2152 Air Traffic Control Specialists who provide air traffic control services for the Department of the Air Force, who are Department of the Air Force employees employed at Edwards Air Force Base, California.
EXCLUDED: All professional employees, management officials, supervisors, and employees as described in 5 U.S.C. 7112(b)(2),(3),(4),(6) and (7).
III. Application for Review
In its application for review the Activity contends that the RD's finding that a unit consisting of the ATCSs and the three Electronics Technicians is appropriate is inconsistent with Authority precedent. The Activity's objections center primarily on the small size of the unit and disagreement with the RD's conclusion that the ATCSs and three Electronics Technicians share a community of interest that is sufficiently distinct from other employees at Edwards Air Force Base to warrant placement in a separate unit. The Activity contends that, at a minimum, the approximately 77 other Electronics Technicians employed at Edwards Air Force Base should be included in the unit, but that, more appropriately, the unit should consist of all nonsupervisory, appropriated fund, General Schedule employees at Edwards Air Force Base. The Activity argues that establishing a unit as small as that found by the RD to be appropriate is inconsistent with Authority precedent. The Activity also contends that the facts of the case do not support the RD's conclusion that the unit is appropriate.
The Union opposes the application for review. The Union contends that Authority precedent, read correctly, supports the appropriateness of the unit in which the RD directed an election. Additionally, the Union contends that the Activity's application fails to identify any substantial factual issue that the RD erroneously decided. As to the inclusion of the three Electronics Technicians in the unit, the Union states that the RD's decision clearly intended that they be in the unit and that the lack of any mention of them in the unit description set forth in the direction of election was "an inadvertent omission in . . . typing." Union Opposition at 4.
V. Analysis and Conclusion
Under section 2422.17 of the Authority's regulations, an application for review may be granted only where it appears that compelling reasons exist therefor and only on grounds specified in that section. 5 C.F.R. § 2422.17(c). The Activity's application relies on the two grounds set forth at 5 C.F.R. § 2422.17(c)(1) and (4): (1) that a substantial question of law or policy is raised because of the absence of, or a departure from, Authority precedent; and (2) that the RD's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of a party.
As to the first ground raised, Authority precedent exists for finding appropriate a unit structured around a functional grouping of employees who possess characteristics and concerns limited to that group. See, for example, Department of the Navy, Naval Station, Norfolk, Virginia, 14 FLRA 702 (1984). Moreover, the Statute itself explicitly recognizes that units established on a functional basis may be appropriate. 5 U.S.C. § 7112(a)(1). As to size of a unit, while the small size of a proposed unit may be one factor to be considered in determining appropriateness, it does not automatically disqualify a unit from being found appropriate. See, for example, Department of Defense, U.S. Military Enlistment Processing Command, Headquarters, Western Sector, Oakland Army Base, Oakland, California, 5 FLRA 3 (1981) (petitioned-for unit consisting of 20 employees found appropriate). The size of a proposed unit is a factor that should be considered in the context of all relevant facts and circumstances. Based on the foregoing, we reject the Activity's contention that the RD's decision constitutes a departure from Authority precedent.(2)
The contentions made by the Activity in support of the second ground for review are, in large measure, simply disagreement with the conclusions that the RD reached based on the facts of the case. The only factual finding that the Activity specifically challenges as erroneous is the RD's statement that "as a practical matter, ATCSs are not in the same competitive area as the rest of the civilian employees at Edwards Air Force Base." Regional Director's Decision at 3. We do not conclude that this statement is clearly erroneous. Despite the fact that the actual definition of the relevant competitive area may suggest otherwise, this statement recognizes the reality of the situation that, in our view, is supported by the record; that is, the potential for employee movement between ATCS and other positions in a RIF is slight. The Activity has failed to demonstrate in its application that the RD's decision on a substantial factual issue is clearly erroneous.
We conclude that the Activity has failed to demonstrate that compelling reasons exist for granting review of the RD's decision. We note that the unit found appropriate by the RD varies from that originally sought by the petition. The Union has expressed no objection to the RD's action in directing an election in a unit different from that for which it had petitioned. However, because the unit description set forth in the Direction of Election does not correspond to the unit that the RD found appropriate, the RD should amend it to recognize the inclusion of the three Electronics Technicians in the unit with the ATCSs.
The application for review of the Regional Director's Decision and Direction of Election is denied. The Regional Director is directed to take appropriate action consistent with this decision.
(If blank, the decision does not have footnotes.)
1. In the Regional Director's Decision and Direction of Election, the name of the Union/Petitioner was captioned as "Sport Air Traffic Controller Association." However, in all case papers, the Union/Petitioner represents its name as Sport Air Traffic Controllers Organization. Accordingly, we use the same name as that used by the Union/Petitioner.
2. Although we are not without misgivings about combining Electronics Technicians with ATCSs in a bargaining unit of limited scope, the Activity does not challenge the appropriateness of combining the two groups of employees. In its application, the Activity contends that, rather than including only three Electronics Technicians, all 80 should be combined with the ATCSs. Consequently, the issue of whether any Electronics Technicians should be included in the ATCS unit is not before us. Moreover, the record before us does not establish that a unit limited to ATCSs and the three Electronics Technicians is inappropriate in t