39:0899(79)CU - - Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, KY and NFFE Local 1482 - - 1991 FLRAdec RP - - v39 p899



[ v39 p899 ]
39:0899(79)CU
The decision of the Authority follows:


39 FLRA No. 79

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEFENSE MAPPING AGENCY

HYDROGRAPHIC/TOPOGRAPHIC CENTER

LOUISVILLE OFFICE

LOUISVILLE, KENTUCKY

(Activity)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1482

(Labor Organization/Petitioner)

4-CU-80021-2

(35 FLRA 625 (1990))

ORDER DENYING APPLICATION FOR REVIEW

February 28, 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 Petitioner (Union) under section 2422.17(a) of the Authority's Rules and Regulations. The Union seeks review of the Regional Director's (RD) Decision and Order on Petition for Clarification of Unit (CU). The RD dismissed the CU petition, without prejudice to the Union filing a representation petition, upon finding that the Union's CU petition raised a question concerning representation that may not be resolved in a CU petition. The Activity did not file an opposition to the Union's application for review.

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

II. Background

In 1969, the Activity granted the Union recognition for a unit of nonprofessional employees. In 1979, the Union filed a representation (RO) petition in Case No. 4-RO-13 seeking an election to determine whether professional employees should be included in its existing unit. The parties mutually agreed that Cartographer Project Leaders would be excluded from the petitioned-for bargaining unit. As a result of the election and the parties' agreement, the Project Leaders were excluded from the Union's certified unit.

On May 12, 1989, the Acting Regional Director (ARD) issued a Decision and Order in Case No. 4-CU-80021 finding that Cartographer Project Leaders and Cartographer Project Directors should be included in the Union's bargaining unit. The Activity filed an application for review only as to the ARD's determination that the Project Leaders should be included in the unit. We granted review of the ARD's decision in Defense Mapping Agency Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 34 FLRA 407 (1990) 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.

On review of the ARD's decision in Defense Mapping Agency Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 35 FLRA 625 (1990) (Defense Mapping Agency), we found that the record lacked the necessary information for us to determine whether, under the standards set forth in the Authority's Decision in Federal Trade Commission, 35 FLRA 576 (1990) (FTC), a CU petition was the appropriate petition to file in the instant case. In FTC, we determined that a CU petition was the proper procedure to clarify, consistent with the parties' intent, inclusions or exclusions from a unit after the basic question of representation had been resolved. In FTC, we also found that, in the absence of a demonstration that affected employees have undergone meaningful changes in their job duties or functions, a CU petition was not appropriate for including employees who were specifically excluded from the original certification pursuant to a voluntary pre-election agreement approved by an RD of the Authority.

Therefore, based on the above findings, we remanded Defense Mapping Agency to the RD to determine if any meaningful changes have occurred in Project Leaders' job duties or functions since the time the unit was certified in 1979. If there have been meaningful changes in the Project Leaders' job duties, the RD was directed to process the CU petition, determine whether to include the Project Leaders in the unit, and issue a new decision in this case. If there have not been meaningful changes, the RD was directed to dismiss the CU petition and permit the Union to file an RO petition.

III. Regional Director's Decision

On remand, the RD found that the Union's CU petition raised a question concerning representation that may not be resolved in a unit clarification petition. In this regard, the RD determined that there have been no meaningful changes in the duties or functions of the Project Leaders since the parties agreed to exclude them from the bargaining unit in 1979, because they allegedly performed some supervisory functions.

The RD found that, at the time of the 1979 election, Project Leaders: (1) made maps and helped Production Cartographers make maps; (2) solved technical or scientific problems that arose during work assignments; (3) conducted on-the-job training in formal classroom settings as well as at the worksite of Production Cartographers; (4) supervised the technical work of groups of lower-graded "Cartographic Technicians" who compiled material and made maps from this material; (5) maintained a Quality Inspection folder in which they documented the progress of assignments; and (6) were responsible for the quality of work produced by the team. RD's decision at 2. The RD also found that Project Leaders: (1) reviewed assignment sheets to determine what the Cartographers needed to do; (2) decided what equipment, what process, and what materials the Cartographers should use in completing assignments; (3) advised supervisors of the team members performance; and (4) investigated and recommended action to correct recurring problems in the Branch or between Branches. The RD further stated that Project Leaders acted as supervisors or branch chiefs in their absence. Id. at 2-3.

The RD concluded that in 1979, the principal function of the Project Leaders was "to give technical supervision and guidance to a team of lower-graded Production Cartographers" and to review the progress of their work. Id. at 2.

The RD found that, at the present time, Project Leaders: (1) exercise technical supervision over the Production Cartographers in specification, policy and production matters; (2) conduct and assist in training employees; (3) maintain Quality inspection folders on assignments; (4) provide on-the-job training and guidance for Production Cartographers; (5) review work assignments; (6) maintain records and document the progress of assignments; (7) develop solutions for any technical problems which may arise during the course of an assignment; (8) communicate with the Production Cartographers, other Project Directors, and the Branch Chief; and (9) advise supervisors about the performance of employees on the team. Id. at 3-4.

The RD concluded that, while the evidence reflected that the grades of the members of teams rose, the "Project Leader's major duty at all times since 1979 has been, and continues to be, to lead and guide [team members] in the technical aspects of cartographic assignments." Id. at 4. The RD determined that the Project Leaders still "employ the same techniques and procedures, including monitoring, evaluation and reviews[,] . . . still perform their duties at the same location," and "continue to effectively advi[s]e supervisors about employees' job performance." Id. Citing FTC, the RD concluded that "there have been no meaningful changes in the job duties or functions of the Project Leaders which could affect their status as to the bargaining unit." Id. at 4-5.

Therefore, the RD dismissed the CU petition without prejudice to the Union filing an RO petition.

IV. Application for Review

The Union seeks review of the RD's decision on the grounds that: (1) a substantial question of law or policy is raised because of the absence of, or a departure from, Authority precedent; (2) there are extraordinary circumstances warranting reconsideration of an Authority policy; (3) a ruling made in connection with the proceeding has resulted in prejudicial error; or (4) the Regional Director's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of the Union and the employees affected.

In essence, the Union contends that the RD erred in: (1) determining that there have been no meaningful changes in the duties or functions of the Project Leaders since 1979; (2) finding that the parties mutually agreed to exclude the Project Leaders in 1979 on the basis that they were supervisors; and (3) relying on FTC. The Union also asserts that management's alleged harassment of Union officials and unit employees and other violations of the Statute constitute extraordinary circumstances that "should preclude the Project Leaders from being removed from the unit." Id. at 4.

V. Analysis and Conclusions

Upon careful consideration of the Union's application for review, we conclude that compelling reasons do not exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting review of the RD's decision. The Union's contentions constitute mere disagreement with the RD's factual findings and conclusions, which are based on record evidence developed at a hearing, and her application of Authority precedent to those facts.

In Defense Mapping Agency, we reiterated the Authority's principles, established in FTC, to be applied to determine whether a CU petition or an RO petition is the appropriate procedure to use for determining unit eligibility questions in circumstances similar to the instant case. We remanded Defense Mapping Agency to the Regional Director only because of the lack of necessary information to determine if meaningful changes had occurred in the job duties or functions of the employees at issue. These facts were necessary for the Authority to determine whether a CU petition is the appropriate petition to file in this case.

In the instant case the RD, applying Authority precedent in FTC, found that the record evidence established that there were no meaningful changes in the Project Leaders' job duties or functions since they were excluded from the Union's bargaining unit in 1979. The RD found that the Project Leaders' major duty at all times since 1979 has been, and continues to be, to lead and guide team members in the technical aspects of cartographic assignments and that they continue to employ the same techniques and procedures in performing their jobs. In our view, the Union expresses mere disagreement with the RD's factual findings. Such contentions do not provide a basis for granting review of the RD's decision. See U.S. Small Business Administration, 34 FLRA 392 (1990); Department of the Army, Headquarters, Presidio of San Francisco, Directorate of Engineering and Housing, San Francisco, California, 33 FLRA 478 (1988).

Finally, we note that to the extent that the Union construes the effect of the proceedings since 1979 and the RD's decision as "preclud[ing] the inclusion forever of [the Project Leaders]" in the unit, such an understanding is incorrect. Application for Review at 3. The RD determined that the Union's CU petition "raises a question concerning representation which may not be resolved in a unit clarification petition. [The RD] therefore dismiss[ed] the petition without prejudice to the filing of a representation petition hereinafter." RD's decision at 5. In other words, the Union may file an RO petition in which it may seek to represent the Project Leaders. Should such a petition be filed, as with RO petitions filed in other circumstances, the Regional Director must, as necessary, determine the employees' unit status and in addition, must determine whether all applicable requirements, such as those concerning showings of interest, have been satisfied. See FTC, 35 FLRA at 586.

Accordingly, we deny the applicat