36:0237(29)CU - - HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1990 FLRAdec RP - - v36 p237



[ v36 p237 ]
36:0237(29)CU
The decision of the Authority follows:


36 FLRA No. 29

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

HEADQUARTERS, XVIII AIRBORNE CORPS

AND FORT BRAGG

FORT BRAGG, NORTH CAROLINA

(Activity/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1770

(Labor Organization)

4-CU-90003

(34 FLRA 21)

ORDER DENYING APPLICATION FOR REVIEW

July 6, 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 Union under section 2422.17(a) of the Authority's Rules and Regulations. The application seeks review of the Regional Director's Decision and Order, which was issued pursuant to a remand from the Authority, on a petition for clarification of unit.

In Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 21 (1989) (Fort Bragg), the Authority remanded the Regional Director's initial decision on the petition for clarification of unit filed by the Activity. The Authority directed the Regional Director to develop a record and reach a determination concerning whether the employees assigned to the Logistics Management Division, Program Manager Tactical Vehicles, U.S. Army Tank Automotive Command (TACOM), Fort Bragg, N.C., were properly included in the certified bargaining unit.

The Union's application seeks review of the Regional Director's decision on remand that the TACOM employees did not accrete to the certified bargaining unit. The Activity did not file an opposition to the application for review.

For the reasons set forth below, we deny the application.

II. Background

The unit clarification question arose when an employee grieved his discharge from TACOM. 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 a petition for clarification of the bargaining unit status of 21 TACOM employees, including the grievant. On October 14, 1988, the arbitrator stayed the arbitration proceedings pending the Authority's decision on the unit clarification petition.

In a decision issued on January 26, 1989, the Regional Director found that the 21 TACOM positions, including the grievant's former position, were vacant and no longer existed at Fort Bragg. The Regional Director concluded, based on the Authority's decision in Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52 (1981), that she lacked authority to clarify the bargaining unit status of vacant positions. Consequently, the Regional Director dismissed the petition for unit clarification.

The Union filed an application for review of the Regional Director's decision to dismiss the petition. On review, the Authority concluded that it was necessary to resolve the clarification of unit petition in order to avoid the possibility that the grievant improperly would be denied access to arbitration. Fort Bragg, 34 FLRA at 25. The Authority found that the arbitrability of the grievant's case could be determined only if the bargaining unit status of the TACOM positions, including the position held by the grievant, was resolved. Accordingly, the Authority remanded the unit clarification petition to the Regional Director for a determination of whether the TACOM employees were properly included in the certified bargaining unit at the time the grievant was discharged.

III. Regional Director's Decision on Remand

On remand, the Regional Director found that the Union is the exclusive bargaining representative of the unit 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: U.S. Army Airborne and Communications - Electronics Board; U.S. Army Medical Department Activities; U.S. Army Institute for Military Assistance; U.S.Army Communications Command Agency - Fort Bragg; Headquarters, U.S. Army First ROTC Region; Troop Support Agency - Commissary; U.S. Army Intelligence and Security Command, General Intelligence Production Detachment - Fort Bragg; and U.S. Army Dental Activity.

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

Regional Director's Decision at 2. This unit was described in a certification issued in Case No. 4-RO-20020, dated November 30, 1982.

The Regional Director found that TACOM, which is headquartered in Warren, Michigan, is responsible for the research, development, procurement, and logistical support of the U.S. Army's tanks and automotive vehicles. In 1987, TACOM established a temporary team, composed primarily of automotive mechanics, at Fort Bragg to issue high mobility, multipurpose wheeled vehicles to Fort Bragg activities. Id. at 2-3.

At Fort Bragg, the certified unit includes the tenant activities which are listed in the unit description. The TACOM team, according to the Regional Director, was not a tenant activity. Id. at 4. The Regional Director found that tenant activities are "those activities which are fully serviced by the Civilian Personnel Office based on a Table of Distribution and Allowance (TDA)." Id. at 3-4. According to the Regional Director, TACOM was not a tenant activity because "the TACOM employees were not hired based on a TDA nor did the Civilian Personnel Office provide full personnel services to the TACOM employees." Id. at 4.

The Regional Director found that Fort Bragg's Civilian Personnel Office hired employees for 21 TACOM positions from April 1987 to December 1987. According to the Regional Director, TACOM retained the manpower space allocations for the temporary positions and the employees were paid from funds furnished by TACOM. Supervision, according to the Regional Director, was performed by teams who were rotated by TACOM from Toole Army Depot in Utah every 6 weeks. The 21 temporary TACOM employees were terminated in December 1987 when the team's mission was completed.

In determining if the TACOM employees shared a community of interest with the Activity's employees, the Regional Director determined that the TACOM employees were subject to the same general personnel policies and practices which were applied to other Fort Bragg employees. Id. at 4. Additionally, the Regional Director found that the Civilian Personnel Office provided personnel services to the TACOM employees "such as payroll deductions for health benefits, allotments, saving bonds and within-grade increases." Id.

The Regional Director also found that the TACOM employees "worked in a totally militarily-populated area of Fort Bragg several miles from bargaining unit employees." Id. Furthermore, the Regional Director found that the "21 employees were not promised any expectation of continued employment." Id. The Regional Director noted that two of the TACOM employees were hired as permanent employees, but that the other employees "are no longer employed at Fort Bragg and have never been employed at Fort Bragg." Id.

Applying section 7112(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute), the Regional Director found that the TACOM employees "performed identifiably distinct functions, worked in a different location under different supervision and had little or no functional or physical interchange with the employees in the certified unit." Id. at 5. The Regional Director concluded that the TACOM employees "did not accrete to the certified bargaining unit" and that "including TACOM employees in the bargaining unit represented by [the Union] would not promote effective dealings and efficient agency operations[.]" Id. Consequently, the Regional Director dismissed the petition.

IV. The Application for Review

The Union contends that, under section 2422.17(c)(4) of the Authority's Rules and Regulations, its application should be granted because the Regional Director's decision on a substantial factual issue is clearly erroneous and such error prejudicially affected the Union's rights.

In support, the Union asserts that the Regional Director erred in the following factual findings. First, the Union disputes the Regional Director's finding "[t]hat the TACOM employees were not hired based on a TDA." Application at 1. The Union cites a Letter of Instruction, concerning TACOM's temporary team at Fort Bragg, which states that "[t]he civilians hired locally will be against TACOM's TDA authorizations and will be funded by TACOM." Attachment to Application for Review, Letter of Instruction (LOI) - Field of High Mobility Multipurpose Wheeled Vehicle (HMMWV), Paragraph 4.c.(2)a (hereinafter LOI).

The Union also asserts that the Regional Director erred in finding "[t]hat the Civilian Personnel Office did not provide full personnel services to the TACOM employees." Application at 1. Again, the Union cites the Letter of Instruction, which states that the CPO will "[p]rovide any assistance required by the [TACOM team chief] in matters related to civilian personnel functions." LOI at Paragraph 4.c.(2)b.

Additionally, the Union asserts that the Regional Director is incorrect in stating "[t]hat TACOM employees worked in a totally military-populated area of Fort Bragg several miles from bargaining unit employees." Application at 1-2. The Union contends that the "TACOM operation occurred . . . less than two hundred feet from the Material Handling Equipment Maintenance Shop area which is part of the Directorate of Logistics that employs bargaining unit employees" and that TACOM employees "shared the commercial eating facilities, etc., with other bargaining unit employees[.]" Id. at 2.

The Union also argues that the Regional Director's finding that "other employees are no longer employed at Fort Bragg and have never been employed by Fort Bragg" is in error. Id. at 2. The Union asserts that the grievant was employed in another temporary position at Fort Bragg after the termination which led to this unit clarification petition and that the grievant had been employed previously as a temporary employee at Fort Bragg.

In addition, the Union contends that the Regional Director's finding "[t]hat the TACOM employees worked under different supervision[]" is incorrect. Id. The Union contends that all tenant activities have "supervisory/managerial chains that flow to other military installations[.]" Id.

The Union also asserts that tenant units which are not specifically named in the bargaining unit description in Case No. 4-RO-20020 "have been accepted as accreting to the Bargaining Unit." Id. The Union claims that there are no distinctions between the TACOM employees and other temporary employees at Fort Bragg concerning personnel policies and practices, supervision, proximity and interaction with unit employees, and similarity in functions.

Finally, the Union argues that "the Regional Director's decision was not based even on the undisputed facts contained in the case file which leads to the suspicion that the decision may be in retaliation" for the Union's application for review of the Regional Director's initial decision which resulted in the Authority's remand of the unit clarification petition to the Regional Director. Id. at 3. The Union requests that the Authority reverse the Regional Director's dismissal "or at least provide an analysis which does not leave the suspicion of retaliation." Id.

V. Analysis and Conclusion

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's regulations for granting the Union's application for review.

Section 7112(a)(1) provides that the Authority may determine a bargaining unit to be appropriate only if the determination "will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of, the agency involved." In order to determine whether temporary employees have a community of interest with other employees, there must be a determination that the temporary employees have a reasonable expectation of continued employment. See U.S. Army Engineer Activity, Capital Area, Fort Myer, Virginia, 34 FLRA 38, 42 (1989) (Army Engineer Activity, Fort Myer).

The record shows that the 21 TACOM employees were hired as temporary employees to perform work that was not normally done at Fort Bragg. It is undisputed that management planned to terminate the TACOM employees when the team's mission was completed and that the employees were, in fact, terminated in December 1987. Moreover, the Regional Director found that "[t]he 21 employees were not promised any expectation of continued employment." Regional Director's Decision at 4.

The Union does not dispute the Regional Director's finding that the TACOM employees were not promised any expectation of continued employment. However, the Union asserts that the Regional Director erred in finding that except for two employees, none of the other TACOM employees were previously employed, or continued to be employed, at Fort Bragg. According to the Union, the grievant was employed at Fort Bragg before and after his employment with TACOM. Exc