38:0935(78)RO - - Energy, Western Area Power Administration, Golden, CO and IBEW, Government Coordinating Council #1, Locals 640, 1245, 1759, 1959, 2159 - - 1990 FLRAdec RP - - v38 p935



[ v38 p935 ]
38:0935(78)RO
The decision of the Authority follows:


38 FLRA No. 78

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF ENERGY

WESTERN AREA POWER ADMINISTRATION

GOLDEN, COLORADO

(Activity)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

GOVERNMENT COORDINATING COUNCIL #1

LOCALS 640, 1245, 1759, 1959, 2159

(Labor Organization)

7-RO-00001

DECISION AND ORDER ON APPLICATION FOR REVIEW

December 14, 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 (RD's) Decision and Order filed by the Labor Organization (Union) under section 2422.17(a) of the Authority's Rules and Regulations. The Activity did not file an opposition to the Union's application for review.

On November 3, 1989, the Union filed a Representation (RO) petition for an election in a unit of all Supervisory Craftsmen employed by the Activity. On August 30, 1990, the Regional Director dismissed the Union's RO petition on the grounds that the Union failed to satisfy the requirements set forth in section 7135(a)(2) of the Statute for the initial according of recognition for units of supervisors.

For the following reasons, we grant the Union's application for review because of the absence of Authority precedent and, in agreement with the Regional Director, dismiss the Union's petition.

II. Background

In Department of Energy, Western Area Power Administration, 3 FLRA 77 (1980) (WAPA 1), the Authority found that the appropriate bargaining unit for employees transferred from the Department of Interior, Bureau of Reclamation, to the Activity was an Activity-wide unit of Wage Board employees, including employees classified as Foreman I, II and III. The Activity had claimed that the employees classified as Foreman I, II and III were supervisors and should have been excluded from the unit.

Shortly after the issuance of WAPA 1, the Activity reclassified Foreman II and III as Supervisory Craftsmen. The Activity filed a Clarification of Unit (CU) petition with the Authority seeking to exclude the position of Supervisory Craftsman from the unit found appropriate in WAPA 1. In Department of Energy, Western Area Power Administration, Golden Colorado, Case No. 7-CU-24 (February 17, 1981) (WAPA 2), the Authority upheld the regional director's dismissal of the Activity's CU petition on the grounds that the Activity had not contended or demonstrated that "the incumbents of the disputed positions no longer perform the duties of the positions previously classified as Foreman II and III." Regional Director's Decision at 4.

After the Authority's decision in WAPA 2, a dispute arose between the Union and the Activity when the Activity refused to negotiate over wages for employees in the Supervisory Craftsman position. The union filed an unfair labor practice charge against the Activity and, in U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 22 FLRA 758 (1986) (WAPA 3), the Authority found that the Activity's refusal to bargain violated the Statute. The Activity appealed the Authority's decision in WAPA 3 to the United States Court of Appeals for the Tenth Circuit.

During the pendency of the Activity's appeal to the court, the Authority issued its decision in U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 27 FLRA 268 (1987) (WAPA 4), where it found that the Activity violated the Statute by, among other things, bypassing the Union and negotiating over wages directly with the employees in the position of Supervisory Craftsman. WAPA 4 also was appealed by the Activity to the Tenth Circuit.

In United States Department of Energy v. FLRA, 880 F.2d 1163 (10th Cir. 1989) (Department of Energy), the court reversed the Authority's decision in WAPA 3, on the grounds that the Authority had improperly certified a mixed unit of supervisory and nonsupervisory employees in WAPA 1. The court noted that section 7112(b)(1) of the Statute prohibits supervisors from being included in bargaining units established under the Statute unless their inclusion is expressly authorized by section 7135(a)(2) of the Statute. The court held that section 7135(a)(2) allows the Authority "to recognize only exclusive units of supervisors, not mixed units." Id. at 1167 (footnote omitted). In U.S. Department of Energy, Western Area Power Administration, Golden, Colorado v. FLRA, No. 87-2062 (10th Cir. Nov. 15, 1989), the court reversed the Authority's decision in WAPA 4, on the same grounds that it reversed WAPA 3.

Subsequent to the court's decision, the Union filed the instant RO petition seeking to represent the Activity's Supervisory Craftsmen in a separate unit.

III. Regional Director's Decision

The Regional Director noted that the parties entered into a written stipulation in which they agreed, among other things, that the sole issues to be resolved in this matter were whether: (1) the Union satisfied the requirements set forth in section 7135(a)(2); and (2) the certification of the Union as the exclusive representative of the petitioned-for unit of supervisors would create a conflict of interest because the Union also represents units of nonsupervisory employees in the Activity.

Section 7135(a)(2) of the Statute provides that nothing in the Statute precludes:

(2) the renewal, continuation, or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally represent management officials or supervisors in private industry and which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of this chapter.

The Regional Director stated that, in Department of Energy, the court concluded that section 7135(a)(2) does not allow the Authority to recognize mixed units of supervisors and nonsupervisors. The Regional Director noted that "the Court interpreted the use of the phrase 'units of' in [section] 7135(a)(2) to be a reference to supervisory units and not to mixed units of supervisory and nonsupervisory employees." Regional Director's Decision at 7. The Regional Director stated that the Authority adopted the court's interpretation of section 7135(a)(2) in U.S. Department of Energy, Washington, D.C. and Western Area Power Administration, Golden, Colorado, 34 FLRA 361 (1990) (WAPA 5) and U.S. Department of Energy, Washington, D.C. and Western Area Power Administration, Golden, Colorado, 34 FLRA 368 (1990) (WAPA 6).

Applying section 7135(a)(2), the Regional Director concluded that the Union "failed to demonstrate that it was the exclusive representative of a supervisor-only unit in any agency on the effective date of the [Statute]." Id. at 8. The Regional Director rejected, in this regard, the Union's argument that it represented a supervisor-only unit on January 11, 1979, the effective date of the Statute.

The Regional Director noted the Union's admission that the Bonneville Power Administration unit had always been a mixed unit. In addition, the Regional Director rejected the Union's assertion that the Union's Yuma Projects Office, Yuma, Arizona unit (Yuma unit) was a supervisor-only unit on the effective date of the Statute. The Regional Director noted that, pursuant to a petition filed by a rival labor organization to represent the nonsupervisory employees in the Yuma unit, the Assistant Secretary of Labor for Labor-Management Relations had, prior to the effective date of the Statute, directed an election among the nonsupervisory employees in the Yuma unit. Department of the Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 8 A/SLMR 1247 (1978) (Yuma Projects Office). The Regional Director noted also that, as a result of the petition and the Assistant Secretary's action, a question concerning representation (QCR) existed in the Yuma unit on the effective date of the Statute. The Regional Director determined, however, that as the election and subsequent certification of the rival union as the representative of the severed unit of nonsupervisory employees did not occur until March 15, 1979, after the effective date of the Statute, the Union was the exclusive representative of the mixed unit on the effective date of the Statute.

The Regional Director concluded that as the evidence did not establish that the Union represented a supervisor-only unit on the effective date of the Statute, the Union failed to satisfy the requirements set forth in section 7135(a)(2) for the initial according of recognition for units of supervisors. Accordingly, the Regional Director dismissed the Union's petition. The Regional Director also found that based on the disposition of the petition, it was unnecessary to address other issues in the case.

IV. Union's Application for Review

The Union contends that the Regional Director's decision "constitutes an erroneous application of the law to the undisputed facts and should, therefore, be reversed." Application for Review at 2.

The Union contends that the effect of Yuma Projects Office was that a QCR existed in a unit of nonsupervisory employees and a separate unit of supervisors, where there was no QCR, existed. As the decision in Yuma Projects Office issued on November 22, 1978, prior to the effective date of the Statute, the Union claims that on the effective date of the Statute, it represented a supervisor-only unit. The Union argues, therefore, that the requirements set forth in section 7135(a)(2) have been met.

The Union argues, in this regard, that during the pendency of the QCR in the Yuma unit, the Bureau of Reclamation could not lawfully negotiate with the Union over matters involving the nonsupervisory employees in the Yuma unit. The Union maintains that "[n]ot having exclusive recognition as the representative of the non[]supervisory employees left the [Union] only with exclusive recognition of the supervisory employees . . . ." Application for Review at 6 (emphasis in original). Accordingly, the Union asserts that it has satisfied the requirements of section 7135(a)(2) of the Statute.

Finally, with respect to the conflict-of-interest issue not resolved by the Regional Director, the Union argues that section 7135(a)(2) of the Statute does not address such conflicts. The Union argues also that if a conflict of interest existed, a unit could not, under section 7112 of the Statute, be determined to be appropriate because "there could be no community of interest and there could not be any effective dealings or efficiency." Id. at 9. The Union notes, however, that the Activity "stipulated to a community of interest and to effective dealing and efficiency of operation." Id.

V. Analysis and Conclusions

Upon careful consideration of the application for review, we conclude that compelling reasons exist, within the meaning of section 2422.17(c) of our Rules and Regulations, for granting the application. In particular, we conclude that the issue of whether, in the facts and circumstances of this case, the Union represented a supervisor-only unit on the effective date of the Statute raises a substantial question of law or policy because of the absence of Authority precedent.

Section 7112 of the Statute provides that a bargaining unit may not be found to be appropriate if it includes, "except as provided under section 7135(a)(2) of [the Statute], any management official or supervisor[.]" Consistent with section 7112, "[s]upervisors are prohibited from being included in . . . units, unless their inclusion is expressly authorized by [section] 7135(a)(2)." Department of Energy, 880 F.2d at 1166.

For a union to be accorded exclusive recognition for a unit of supervisors, section 7135(a)(2) requires that the union must have: (1) historically or traditionally represented units of supervisors in private industry; and (2) held exclusive recognition for a unit of supervisors in any agency on the effective date of the Statute. See Department of the Navy, 10 FLRA 396, 397 (1982).

The Regional Director did not address whether the Union "historically or traditionally represented management officials in private industry," within the meaning of section 7135(a)(2). The parties stipulated, however, that the Union "has, for an extended number of years, represented supervisory employees both in mixed . . . units and, in at least three units consisting solely of supervisors, in private industry." Stipulation at 2, para. 7. Consistent with this stipulation, and as there in no indication in the record that the Activity contested this matter, we will assume that the Union has satisfied the first requirement of section 7135(a)(2).

To satisfy the second requirement in section 7135(a)(2), it must be determined that the Union held exclusive recognition "for units of . . . supervisors in any agency on the effective date of [the Statute]." This reference to "units of . . . supervisors" was not construed by the Tenth Circuit in Department of Energy. The portion of section 7135(a)(2) referring to the "according of recognition for units of . . . supervisors" was, however, construed. In particular, the court held that the "plain meaning of the words 'units of' indicates that Congress in this provision intended only to allow for exclusive units of supervisors, not mixed units." Department of Energy, 880 F.2d at 1167. There is no basis for interpreting the second reference to "units of . . . supervisors" in section 7135(a)(2) differently from the first. Accordingly, to satisfy the second requirement in section 7135(a)(2), a Union must have held recognition for a supervisor-only unit on the effective date of the Statute.

In agreement with the Regional Director, we conclude that the Union did not hold recognition for a supervisor-only unit on the effective date of the Statute. It is clear, in this regard, that at the time the Assistant Secretary directed an election among the nonsupervisory employees in Yuma Projects Office, the unit was mixed. It is also clear that since March 1979, when the rival union was certified as the representative of the nonsupervisory employees, the Union has represented only the supervisory employees in that unit. Finally, there is no dispute that, as the Assistant Secretary had ordered an election among the nonsupervisory employees in that unit in November 1978, a QCR existed in that unit on January 11, 1979, the effective date of the Statute. See Department of the Army Headquarters, Washington, D.C. and U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 FLRA 1110, 1125 (Fort Sill) ("A [QCR] exists when a question regarding which labor organization should represent employees is pending.").

In disagreement with the Union, however, we conclude that the pending QCR did not change the scope of the bargaining unit as it existed on the effective date of the Statute. We note, in this regard, that during the pendency of a QCR, management must maintain existing conditions of employment to the maximum extent possible unless changes are required by applicable law or are required consistent with the necessary functioning of the agency. See, for example, Health Care Financing Administration, 17 FLRA 650, 653 n.6 (1985).

An agency's requirement to maintain existing conditions of employment does not alter an incumbent union's status as exclusive representative of an existing unit, however. In Fort Sill, for example, the National Federation of Federal Employees (NFFE) represented a bargaining unit at the Fort. A rival labor organization petitioned to represent those employees. The Authority concluded that the respondent violated the Statute by "meeting and dealing" with representatives of the rival union concerning unit employees' conditions of employment. Fort Sill, 29 FLRA at 1125. The Authority held, in this regard, that "while the QCR was pending . . . , NFFE remained the exclusive representative of the bargaining unit employees in the unit at issue. Therefore, management was obligated to deal with NFFE during that period on matters which affected those bargaining unit employees' conditions of employment." Id. at 1125-26.

Based on Fort Sill, we reject the Union's assertion that it was "not the exclusive representative of the nonsupervisory employees in Yuma on the effective date . . ." of the Statute. Application for Review at 7 (emphasis in original). Instead, it is clear that until the rival union was certified as the representative of the nonsupervisory employees, the Union was the exclusive representative of the entire mixed unit. The fact that the Assistant Secretary found that no QCR existed in the portion of the Yuma unit consisting of supervisors does not affect this conclusion. See Stipulation at 3, para. 9. If the Activity had changed the conditions o