39:0096(6)CU - - NTEU Chapter 243 and Commerce, Patent and Trademark Office - - 1991 FLRAdec RP - - v39 p96



[ v39 p96 ]
39:0096(6)CU
The decision of the Authority follows:


39 FLRA No. 6

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 243

(Petitioner)

and

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

(Agency)

2-CU-90012

ORDER DENYING APPLICATION FOR REVIEW

January 25, 1991

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 Agency under section 2422.17(a) of the Authority's Rules and Regulations. The Agency seeks review of the Regional Director's Decision and Order on Petition for Clarification of Unit wherein the RD found that 22 nonprofessional employees employed at the Agency's Boyers, Pennsylvania facility (Boyers) should be accreted to the bargaining unit represented by the Petitioner (Union).

For the following reasons, we deny the Agency's application for review.

II. Background

The following facts were developed in a 4-day hearing and are included in the RD's decision.

On April 10, 1985, the Union was certified as the exclusive representative of a nationwide unit of all nonprofessional employees employed by the Agency. The Union filed the instant petition seeking to clarify the existing unit by including the 22 nonprofessional employees employed at the Agency's Boyers, Pennsylvania facility. Boyers' employees were not included in the original certification because the operation, as it exists today, did not begin until 1986.

The Vital Records Unit at Boyers, which is located in a renovated limestone mine 275 feet below the ground, is part of the Records and Property Management Branch of the Facilities Management Division of the Agency's Office of General Services. The Boyers' Facility Manager reports to the Director of Computer Operations in Washington, D.C. Boyers serves as the Agency's main repository of documents pertaining to the issuance of patents and trademarks and is responsible for a data conversion function whereby patents are placed in a computer format for use by the patent examiners. Additionally, Boyers produces computer tapes of all patents issued by the Agency. Although these "functions performed at Boyers are unique within the Agency," they support the overall function and mission of the Agency. Regional Director's (RD) Decision at 3.

There are approximately 22 nonprofessional employees employed at Boyers. These employees are in the job classifications of File Clerk, Quality Inspection Clerk, Vital Records Clerk and Computer Operator. The File Clerks provide clerical support to the Vital Records Unit. The Quality Inspection Clerks operate the scanning equipment in support of the data conversion function performed at Boyers. The Vital Records Clerk provides clerical support to Boyers' Facility Manager. The Computer Operators operate several computer systems "in support of the Boyers mission to digitize patent and trademark source documents." Id. at 3.

Because the Boyers' employees work underground, they are subject to "dust, dirt, poor ventilation, and temperature extremes . . . ." Id. at 4. Moreover, unlike the employees in the unit represented by the Union, the majority of the employees at Boyers occupy term or temporary appointments. The term appointments last for 2 years and must be renewed at the end of that period. Although term employees are not eligible for the full range of Government benefits, they are eligible for health insurance. Similarly, temporary employees are not eligible for all Government benefits, but after the first year they are eligible for health and life insurance. Further, due to the operational organization of Boyers, flextime is not offered to the employees. Although Boyers' employees are eligible to transfer into career positions at the Agency's facilities in the Washington, D.C. area, to date, no Boyers' employees have done so.

The personnel and labor relations policy at Boyers is implemented by the Agency's Personnel Office. Because of the geographical separation, the employees at Boyers are in a separate competitive area for reduction-in-force purposes. Although there is little, if any, interchange between Boyers' employees and the employees in the bargaining unit represented by the Union, computer programmers from Washington are detailed to Boyers on a regular basis to make computer software revisions.

The approximately 1,600 nonprofessional employees in the bargaining unit represented by the Union, like the Boyers' employees, provide support functions to the patent examiners in accomplishing the Agency's mission to examine patent and trademark applications, and issue patents and register trademarks. These employees occupy a variety of job positions, some of which are the same as or similar to those found at Boyers, including Computer Operators, Quality Inspection Clerks, File Clerks, Warehouseman. The Boyers' and unit employees are within the same organizational structure, share common lines of supervision and are subject to the same Federal employee pay scale.

Finally, the record indicates that there is no history of collective bargaining or representation by the Union at Boyers.

III. The Regional Director's Decision

The RD found, based on the facts recited above, that the Agency's employees assigned to Boyers were "appropriate for inclusion" in the unit of Agency nonprofessional employees represented by the Union. RD Decision at 6. The RD concluded that, based on the "substantial similarities between the organizational structure, functions, duties, and mission of the Boyers and Washington unit employees, and noting the centralization of personnel and labor relations policies affecting employees in both units," the Boyers employees shared a clear and identifiable community of interest with the unit employees. Id. at 6. In support of his position, the RD cited U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 31 FLRA 938 (1988) (Fort Bliss). Further, the RD concluded that the establishment of a separate bargaining unit at Boyers "on the basis of geographic separation of this unit alone would result in the fragmentation of an integrated administrative component of the Agency, and would therefore not promote effective dealings or efficiency of Agency operations." RD Decision at 6. In support of this conclusion, the RD cited Department of the Army, Headquarters, Presidio of San Francisco, 33 FLRA 478 (1988). Therefore, the RD ordered that the unit be clarified to include the 22 nonprofessional employees employed at the Boyers facility.

IV. Application for Review

The Agency argues that its application for review should be granted "because, in ignoring his own factual findings, the Regional Director has raised a substantial question of law by departing from Authority precedent." Application at 6 (footnote omitted). In the alternative, the Agency requests the Authority to remand the petition to the RD "for the gathering of additional facts and/or the clarification of his decision." Id. at 1.

The Agency does not dispute the findings of fact, as set forth above. Rather, the Agency contends that in reaching his conclusions, the RD ignored his own factual findings. Further, the Agency claims that the RD made no findings regarding "the organizational structure or duties of the two groups of employees on which he could have possibly based his decision." Id. at 7. In this regard, the Agency contends that no facts were presented regarding the organizational structure or the duties of the employees in the existing unit which could be compared to those of the employees at Boyers.

The Agency argues that the RD's conclusion that there are substantial similarities between the functions and mission of the employees of the existing unit and the Boyers' employees conflicts with the RD's factual findings that the functions performed at Boyers are unique within the Agency. Therefore, the Agency concludes that there was no evidence on which the RD could conclude that the two groups of employees shared a clear and identifiable community of interest.

The Agency also alleges that the RD departed from Authority precedent in reaching his conclusion that the Boyers' employees share a community of interest with the employees in the existing unit. The Agency cites several Authority decisions which it claims support the Agency's argument that the Boyers' employees do not share a community of interest with the employees in the existing unit. The Agency points to the RD's findings that: (1) the Boyers' employees have different working conditions; (2) the Boyers' employees have significantly different employee benefits; (3) the Boyers' employees perform unique functions; (4) the Boyers' employees have different hours of work and do not have flextime; (5) there is no history of interchange or transfer between Boyers' employees and the existing unit employees; and (6) the Boyers' employees are geographically separated from the employees in the existing unit and are in a different competitive area for reduction-in-force purposes.

V. Opposition

The Union contends that the Agency has failed to demonstrate compelling reasons, within the meaning of section 2422.17(c) of the Authority's Rules and Regulations, for granting review of the instant decision.

The Union argues that the RD correctly applied the Authority's decision in Fort Bliss to determine whether the Boyers' employees shared a community of interest with the employees in the existing unit. The Union notes that the RD found that the Boyers' employees and the employees in the existing unit: (1) share common lines of supervision above the second level; (2) are subject to the same Federal Government pay scale and compensation system; (3) are subject to the same personnel policies implemented by the Agency's Personnel office; and (4) have similar working conditions. The Union disputes, in this regard, the Agency's contention that the RD made no factual findings and that no evidence was presented regarding organizational structure or duties of the Boyers' employees and the employees in the existing unit.

The Union claims that the record clearly supports the RD's findings that there are substantial similarities between the mission and function of the Boyers' employees and the unit employees. The Union argues that, as the RD found that the functions performed at Boyers assist the Agency in the performance of its mission pertaining to the issuance of patents and trademarks applications, the Boyers' employees and unit employees share a common mission. The Union also asserts that although the RD found that several of the functions performed at Boyers were unique within the Agency, the RD's "decision suggests and the hearing record shows that the functions performed at the Boyers facility could be performed in the Agency's Crystal City facility or anywhere else." Opposition at 7 (citation omitted).

The Union concludes that the Agency's application expresses mere disagreement with the RD's findings "which are based on precedent and the hearing record, and have not been shown to be clearly erroneous or to have prejudicially affected the rights of any party." Id.

VI. Analysis and Conclusions

For the following reasons, we conclude that no compelling reasons exist, within the meaning of section 2422.17(c) of the Authority's Rules and Regulations, for granting the Agency's application for review. We find that no substantial question of law is raised by reason of a departure from Authority precedent, and we find that the RD's decision on substantial factual issues has not been shown to be clearly erroneous or to have prejudicially affected the Agency's rights.

In deciding questions concerning the accretion of a group of unrepresented employees into an existing represented unit, the Authority is bound by the criteria for determining the appropriateness of a bargaining unit set forth in section 7112(a)(1) of the Statute. The Authority may determine a unit to be appropriate only if the determination will: (1) ensure a clear and identifiable community of interest among the employees in the unit, and (2) promote effective dealings with, and efficiency of the operation of, the agency involved. See, for example, U.S. Department of Energy, Oak Ridge Operations Office, Oak Ridge, Tennessee, 15 FLRA 130 (1984).

In making determinations under section 7112(a)(1), the Authority examines the factors presented on a case-by-case basis. The Authority has not specified individual factors or the number of such factors needed to conclude that groups of employees share a clear and identifiable community of interest.

In Fort Bliss, for example, the Authority denied review of the Regional Director's findings that temporary cooks shared a community of interest with other Wage Grade employees despite the fact that the cooks: (1) used special skills; (2) worked different hours in separate areas from other Wage Grade employees; (3) did not interchange job functions with other Wage Grade employees; and (4) were subject to different first and second level supervision. The Authority also has found that groups of employees shared a community of interest despite: (1) being geographically separated; (2) having different Federal employee benefits; and (3) having different types of job appointments such as career, temporary or term. See, for example, U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Northeast Region, 24 FLRA 922 (1986); United States Corps of Engineers, Kansas City District, Kansas City, Missouri, 15 FLRA 548 (1984); U.S. Department of Housing and Urban Development, 8 FLRA 176 (1982); Defense Contract Administration Services Region, St. Louis, Missouri, 5 FLRA 281 (1981).

In this case, it is clear, as found by the RD, that differences exist between the Boyers' employees and the employees in the existing unit. It is also clear, however, that there are similarities between the two groups of employees, who are part of an integrated administrative component of the Agency. In particular, as found by the RD, the Boyers' employees and the unit employees: (1) share a common mission and organizational structure; (2) perform similar duties and functions in similar job classifications; and (3) are subject to the same personnel and labor relations policies.

On review of the record, we find that the Agency has not demonstrated that the contested factual findings of the RD are clearly erroneous or that the RD departed from Authority precedent. The Agency has not demonstrated, therefore, that review is warranted of the RD's decision that the Boyers' employees and the employees in the existing unit share a clear and identifiable community of interest pursuant to section 7112(a)(1) of the Statute. Instead, the Agency's application for review expresses