40:0221(23)RO - - Air Force, Carswell AFB, TX and Fort Worth Federal Firefighters Association and AFGE, Local 1364 - - 1991 FLRAdec RP - - v40 p221



[ v40 p221 ]
40:0221(23)RO
The decision of the Authority follows:


40 FLRA No. 23

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

CARSWELL AIR FORCE BASE, TEXAS

(Activity)

and

FORT WORTH FEDERAL FIREFIGHTERS ASSOCIATION

(Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1364

(Intervenor)

6-RO-00001

ORDER DENYING APPLICATION FOR REVIEW

April 12, 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 Fort Worth Federal Firefighters Association (FWFFA) under section 2422.17(a) of the Authority's Rules and Regulations. FWFFA seeks review of the Regional Director's Decision and Order on Petition for Certification of Representative. The Regional Director dismissed FWFFA's petition to represent the Activity's nonsupervisory civilian firefighters and fire protection inspectors (hereinafter firefighters) in a unit separate from the Activity-wide bargaining unit represented by AFGE. Neither the Activity nor AFGE filed an opposition to the application for review.

For the following reasons, we deny the application for review.

II. Background and Regional Director's Decision

On May 16, 1968, the Activity granted AFGE exclusive recognition for a bargaining unit consisting of "[a]ll nonsupervisory, nonprofessional, appropriated fund Air Force employees serviced by the Civilian Personnel Office . . . excluding all professional employees, management officials and supervisors, employees described in 5 U.S.C. section 7112(b)(2)(3)(4)(6) and (7), and all employees located at Falcon Gunnery Range at Fort Sill, Oklahoma." Regional Director's Decision at 1. The only change in the bargaining unit since 1968 was the exclusion of employees located at the Falcon Gunnery Range from the unit, pursuant to a clarification of unit (Case No. 6-CU-60001).

There are approximately 700 employees in the AFGE unit who work for various components of the Activity, which is part of the Strategic Air Command (SAC). Nonsupervisory civilian firefighters were first employed at the Activity in 1973 or 1974. This case arose when the FWFFA sought to represent a bargaining unit composed solely of civilian nonsupervisory firefighters.

The firefighters are part of the civil engineering group composed of craft employees, such as plumbers, carpenters, and electricians, who maintain the base. There are seven lead firefighters, four firefighters, and two fire protection inspectors. Two supervisory firefighters are responsible for the Operations Section and report to the Fire Chief. The Fire Chief is under the supervision of the Civil Engineering Commander, who reports directly to the Base Commander.

The Regional Director found that "some working conditions of the firefighters are distinctive in relation to the rest of the civilian workforce . . . ." Id. at 4. The Regional Director noted that "only the operations firefighters work 24-hour shifts, and certain aspects of their premium pay and retirement appear to be unique." Id. However, the Regional Director also found that "elements of the firefighters' employment are shared with other employees or employee groups" at the Activity. Id. The Regional Director found that the firefighters use the same central payroll department, personnel office and security service and are in the same pay schedule and promotion system. Additionally, the Regional Director noted that the firefighters have "routine contact" with Activity employees. Id. The Regional Director also noted that "while only firefighters work a 24-hour shift, numerous other [Activity] employees work in around-the-clock operations, requiring night shift hours, . . . ." Id. In conclusion, the Regional Director found that the firefighters share a community of interest with the other civilian employees of the Activity.

The Regional Director also found that the record demonstrated that the relationship between the Activity and AFGE, as the exclusive representative of an Activity-wide unit, "has resulted in efficient [A]gency operations and effective dealings." Id. at 5. According to the Regional Director, AFGE and the Activity have negotiated collective bargaining agreements since 1971, and the 1978 agreement and the current draft agreement addressed the specific concerns of firefighters. The Regional Director found that a separate unit of firefighters would require the Activity to duplicate "resources and administrative working hours" to administer two collective bargaining agreements, negotiate separately concerning the impact of changes in conditions of employment "for the very small group of firefighters[,]" and communicate separately to two units. Id.

In addition, the Regional Director concluded that "[t]he record contains no evidence of a failure to represent firefighters at [the Activity] on the part of AFGE." Id. The Regional Director noted that AFGE brought in firefighters to negotiate "the specific provision addressing firefighters." Id. Further, the Regional Director noted that firefighters have served as stewards, AFGE has pursued firefighters' grievances, and informal resolutions of disputes have resulted from meetings between the Fire Chief and stewards. The Regional Director also noted that AFGE local and national representatives addressed firefighters' concerns in meetings in May and August 1989 held with firefighters. Finally, the Regional Director found that the firefighters participated in negotiating a provision in "the most recent draft agreement . . . ." Id. at 6.

Applying the standard set forth in Library of Congress, 16 FLRA 429 (1984), the Regional Director concluded that no unusual circumstances were present to justify severing the firefighters from the Activity-wide bargaining unit. The Regional Director rejected Petitioner's argument that "because no nonsupervisory civilian firefighters were employed at [the Activity] at the time of AFGE's recognition in 1968, and no formal accretion of firefighters has ever been recognized by the Authority, the firefighters were never part of the activity-wide bargaining unit . . . ." Regional Director's Decision at 6. The Regional Director found that because civilian firefighters "shared a community of interest with all nonsupervisory, nonprofessional civilian employees at [the Activity], and because they fell under the express terms of the unit description, [they] became part of the established bargaining unit from the time they were hired." Id. Because the Regional Director found that the established bargaining unit, including the firefighters, continued to be appropriate, she found it unnecessary to address whether the firefighters constitute a separate appropriate unit. Consequently, the Regional Director dismissed the petition.

III.Exceptions

The FWFFA argues that the Regional Director's decision and order should be reversed under each of the grounds for review set forth in section 2422.17(c) of the Authority's Rules and Regulations.

A. A Substantial Question of Policy

The FWFFA asserts that the policy question in this case is whether the Authority will "place more weight" on "the right of self determination guaranteed in 5 U.S.C. §7102, or the concern over 'fragmentation' of existing bargaining units[.]" Exceptions at 24. According to the FWFFA, the Authority's concern over fragmentation has become "too significant" and "the ultimate desire to protect the incumbent union, . . . has in essence superseded all other concerns[.]" Id. at 20. The FWFFA urges the Authority to reconsider this policy.

The FWFFA also asserts that Authority decisions concerning representation issues like the one in this case are inconsistent. The FWFFA argues that "the Authority has been erroneously applying the law" in failing to permit firefighters to create separate units when "the evidence, and the law, clearly show that the firefighters would be an appropriate bargaining unit." Id. at 30. In this regard, the FWFFA claims that the Regional Director's failure to find that the Activity's firefighters constitute an appropriate unit is inconsistent with prior Authority decisions. Further, the FWFFA points out that there "has never been any formal election" in the Activity-wide bargaining unit and that the firefighters should be "allowed the opportunity to determine for themselves, . . . their collective bargaining representative . . . ." Id. at 5, 31.

B. Extraordinary Circumstances Which Warrant Reconsideration of Authority Policy

The FWFFA argues that this case presents extraordinary circumstances which require that the Authority reconsider its policy of "basically rejecting petitions for certification and representation status where a pre-existing [a]ctivity-wide unit is present[.]" Id. at 19-20. This case is distinguishable from others considered by the Authority, the FWFFA asserts, because nonsupervisory civilian firefighters were not employed when the Activity-wide unit was recognized in 1968, and the nonsupervisory civilian firefighters who were hired in 1973 or 1974 have not "formally" been made a part of the Activity-wide unit. Id. at 21.

The FWFFA argues that where, as here, the employees seeking representation were not employees at the time of the creation of the Activity-wide unit, those employees should remain outside of that bargaining unit, "unless some intervening event had occurred to include them within the Unit." Id. at 25. The FWFFA asserts that no "step or activity, formal or otherwise" has occurred to include the civilian firefighters at [the Activity] within the bargaining unit." Id. Consequently, the FWFFA asserts that the Authority must find a separate bargaining unit because to do otherwise is contrary to "the basic fundamental concern of the [S]tatute, because it absolutely denies to this group of firefighters any opportunity to ever exercise their right to choose a collective bargaining representative." Id. at 22.

In addition, the FWFFA argues that the unique employment of the firefighters compared to other unit employees constitutes an extraordinary circumstance which justifies a departure from Authority policy. The FWFFA argues that "[t]he record is overwhelming in its evidence of the uniqueness of the Firefighter, in terms of their jobs [sic] requirements, their pay, their hours of work, their working conditions, their interactions with themselves vis a vis other employees on the base, and on and on adinfinitum [sic]." Id. at 29-30. Because of these circumstances, the FWFFA asserts that the Authority "has been erroneously applying the law" and should find that a separate bargaining unit of firefighters is appropriate. Id. at 30.

C. The Conduct of the Hearing

The FWFFA asserts that prejudicial error occurred when the hearing officer sustained an objection to a question asking the president of AFGE Local 1364, "How many members do you have at the local 1364?" Id. at 16. According to the FWFFA, the president's testimony would "substantiate that Local 1364 is indeed a minority Union, with membership of a small minority of the overall bargaining unit[.]" Id. at 18. The FWFFA asserts that the evidence "could have been extremely critical" and would refute the Regional Director's conclusion "that AFGE has been 'active' and 'efficient' and 'effective' in dealing with the Activity and representing the bargaining unit, including the firefighters." Id. at 15. The FWFFA argues that "this case should, at a minimum, be remanded for a further hearing" to take evidence on the question of AFGE Local 1364's membership. Id. at 18.

D. The Regional Director's Findings

The FWFFA asserts that AFGE cannot be considered effective, efficient, or active because AFGE has not reached a collective bargaining agreement with the Activity in more than 12 years. The FWFFA claims that AFGE "has never processed a grievance beyond the first step for any member of the firefighters unit." Id. at 15. The FWFFA asserts that the Regional Director's factual conclusions concerning AFGE's representation activities on behalf of firefighters are "overstated, and simply not supported by the evidence[.]" Id. at 10. According to the FWFFA, the Regional Director's findings concerning AFGE's handling of grievances and other activities are "based upon conclusory statements of officials of AFGE that in no way specifically identify any of the supposed 'informal' grievances and disputes that AFGE asserts to have resolved on behalf of the firefighters." Id. The FWFFA argues that "there is simply virtually no evidence of any action whatsoever by AFGE on the part of the firefighters, from 1974 until the present date." Id. at 10-11. Finally, the FWFFA asserts that the Regional Director, based on Authority decisions, has effectively required the FWFFA to prove "a breach of the duty of fair representation" in order to show that AFGE "has failed to represent the firefighters." Id. at 9 n.4.

Additionally, the FWFFA argues that firefighters have not been given "a reasonable opportunity" to participate in AFGE union affairs. Id. at 12. The FWFFA claims that hearing testimony establishes that "meetings were held at times when most, if not all firefighters could not attend," and "that notices of meetings were not received by firefighters[.]" Id.

The FWFFA also maintains that the Regional Director erred in concluding that the firefighters have a community of interest with employees in the Activity-wide unit. For example, the FWFFA asserts that the Regional Director's conclusion "that 'firefighters fall under [SAC] policies as all [Activity] employees" does not support a finding of a community of interest between Activity employees and firefighters because anyone who is on the base is subject to SAC policies. Id. at 13. The FWFFA also asserts that the Regional Director's decision "grants no credence or significance to the . . . uniqueness" of the firefighters. Id. In particular, the FWFFA asserts that the Regional Director's finding that the firefighters are paid under the same system as other employees is clearly erroneous. The FWFFA notes specific statutory provisions which apply exclusively to firefighters' pay and asserts that "statutory law itself clearly differentiates firefighters from the other non-supervisory civilian personnel" of the Activity. Id. at 14.

IV. Analysis and Conclusions

We conclude, for the reasons stated below, that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review.

A. Reconsideration of Authority Policy Is Not Warranted

Section 7112(a)(1) of the Statute requires that the Authority determine appropriate units that "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." To satisfy these objectives, the Authority has determined that

where . . . an established bargaining unit continues to be appropriate and no unusual circumstances are presented, a petition seeking to remove certain employees from the overall unit and to separately represent them must be dismissed, in the interest of reducing the potential for unit fragmentation and . . . promoting effective dealings and efficiency of agency operations.

Library of Congress, 16 FLRA 429, 431. See also Department of the Army Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 34 FLRA 30 (1989) (Fort Carson); Department of the Navy, Naval Air Station, Point Mugu, California, 26 FLRA 620, 622 (Naval Air Station, Point Mugu) (1987). The FWFFA has presented no arguments which persuade us that the requirements set forth in Library of Congress should be reconsidered or have been applied inappropriately by the Regional Director.

The FWFFA argues that the Authority should apply the "more realistic policy" set forth in Panama Canal Commission, 5 FLRA 104 (1981) and Department of the Navy, Naval Station, Norfolk, Virginia, 14 FLRA 702 (1984) (Department of the Navy). Exceptions at 19. These cases, however, concerned unrepresented firefighters. They did not present the question of whether firefighters should be severed from an established unit. In Panama Canal Commission, various labor organizations sought to represent firefighters who were previously unrepresented. 5 FLRA at 115. Similarly, in Department of the Navy, unrepresented firefighters and fire prevention employees were transferred into the activity from another facility.

In contrast, in Library of Congress, Fort Carson, and Naval Air Station, Point Mugu, which the FWFFA argues should be reconsidered, petitioners sought to sever firefighters from established appropriate bargaining units. Because this case concerns whether firefighters should be severed from the established Activity-wide unit, we find that the Regional Director appropriately applied Library of Congress.

We reject the FWFFA's argument that the policy expressed in Library of Congress "has in essence superseded all other concerns, including the basic concerns fundamental to the [S]tatute." Exceptions at 20. Rather, we find that the standard set forth in Library of Congress is consistent with the statutory requirement that appropriate bargaining units must promote effective dealings with and efficiency of agencies' operations. See 5 U.S.C. § 7112(a)(1).

We also find that the FWFFA has not supported its argument that the Regional Director should have found that the firefighters constitute an appropriate bargaining unit. Under Library of Congress, the Regional Director properly considered whether "an established bargaining unit continues to be appropriate" and determined that the Activity-wide unit was appropriate. Regional Director's Decision at 6. Nothing in Library of Congress, or in any other Authority decision, requires that the Regional Director determine whether the firefighters would also constitute a separate appropriate unit.

B. No Extraordinary Circumstances Exist Which Warrant Reconsideration of Authority Policy

The FWFFA argues that extraordinary circumstances mandate that the Authority reconsider its policy of "denying petitions where an Activity-wide bargaining unit is in place[.]" Exceptions at 20. Primarily, the FWFFA argues that because nonsupervisory civilian firefighters were not employed when the Activity-wide bargaining unit was recognized in 1968, and the firefighters have not been formally recognized as part of that unit, the Authority should find that a separate bargaining unit of firefighters is appropriate.

The Regional Director found that the firefighters shared a community of interest with the Activity's other civilian employees. Regional Director's Decision at 4. In the absence of any evidence to the contrary, we find no reason to disagree with the Regional Director's conclusion that this community of interested existed from the time the firefighters were hired in 1973 or 1974. See U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Northeast Region, 24 FLRA 922 (1986) (finding temporary intermittent observers shared a community of interest with permanent part-time observers from the time they were hired and, therefore, were included in the pre-existing bargaining unit from their date of hire). We also note that although firefighters were not specifically added to the bargaining unit description, they were covered by the 1978 collective bargaining agreement, and Provision 27, concerning the Fire Department, was part of that agreement. Regional Director's Decision at 6, Activity Exhibit 2. Inasmuch as firefighters have been included in the Activity-wide unit since their hire, the Regional Director appropriately applied the criteria in Library of Congress to determine whether the firefighters should be severed from the Activity-wide unit.

We note that, as asserted by FWFFA, there was no formal election in the Activity-wide unit. In 1968, when the Activity recognized AFGE as the exclusive representative of the Activity's civilian employees, however, Executive Order 10988 provided that agencies could grant exclusive recognition without formal elections. The Executive Order required only that an employee organization establish that it had "a substantial and stable membership of no less than 10 per centum of the employees in the unit" and had been "designated or selected by a majority of the employees of such unit . . . ." Executive Order 10988, Sections 5(a) and 6(a). It is clear and undisputed that AFGE properly was granted exclusive recognition under Executive Order 10988. See Activity Exhibit 1 (in its letter of recognition, the Activity stated that AFGE had "established . . . a clear majority of employees either as members or petitioners . . . .").

We also reject the FWFFA's argument that the unique employment conditions of the Activity's firefighters require that the Authority reconsider its policy concerning severance from established bargaining units and sever the firefighters from the Activity-wide unit. In this regard, we note that the Regional Director found that "some working conditions of the firefighters are distinctive in relation to the rest of the civilian workforce . . . ." Regional Director's Decision at 4. The Regional Director considered the unique aspects of firefighters' employment--such as premium pay to compensate the firefighters for 24-hour shifts and particular job duties. However, she found that "elements of the firefighters' employment are shared with other employees or employee groups" at the Activity. Id.

In its application, the FWFFA reiterates the unique aspects of firefighters' employment and asserts that the Authority should reconsider its policy concerning severance. In our view, the FWFFA is merely disagreeing with the Regional Director's conclusions that the firefighters share a community of interest with the Activity's employees and that the Activity-wide unit remains appropriate. We conclude that the FWFFA has not shown that extraordinary circumstances exist which warrant reconsideration of either the Authority policy expressed in Library of Congress or the Regional Director's decision that the firefighters should not be severed from the Activity-wide unit.

C. The Conduct of the Hearing Did Not Constitute Prejudicial Error

At the hearing, the hearing officer sustained an objection to the question, "How many members do you have at the local 1364?" Transcript at 235. We conclude that this ruling did not prejudice the FWFFA's ability to present its case. Even if it were established that membership in AFGE Local 1364 constitutes a small percentage of the bargaining unit, as the FWFFA claims, this fact would not support the FWFFA's argument that AFGE's representation of the firefighters constitutes an unusual circumstance which requires that the firefighters be severed from the unit. In other words, the size of AFGE's membership is not indicative of the quality or extent of AFGE's representation of the firefighters. Finally, we note that the FWFFA presented three witnesses who testified in support of the FWFFA's assertion that AFGE failed to represent firefighters effectively. Consequently, we reject the FWFFA's assertion that the hearing officer's conduct constituted prejudicial error.

D. The Regional Director's Findings Are Not Clearly Erroneous

We reject the FWFFA's assertion that the Regional Director's findings concerning AFGE's representation activities and the community of interest among firefighters and other civilian employees at the Activity are clearly erroneous.

The Regional Director appropriately applied both elements of the standard in Library of Congress. Initially, she concluded that the Activity-wide bargaining unit continued to be appropriate. The evidence presented at the hearing supports the Regional Director's determination that the firefighters share elements of employment with other civilian employees at the Activity. The FWFFA's argument that the Regional Director erred in finding a community of interest between the firefighters and the Activity's other civilian employees constitutes nothing more than disagreement with the Regional Director's findings and conclusion.

The record also supports the Regional Director's conclusion that no unusual circumstances exist which warrant severing the firefighters from the Activity-wide unit. In this regard, we note that we do not construe the Regional Director's decision, or any Authority decisions, as requiring that a petitioner establish that a union has breached its statutory duty of fair representation in order to show that unusual circumstances exist. See also Fort Carson, 34 FLRA at 33-35.

With regard to AFGE representation activities, the Regional Director determined, and the record supports, that AFGE assisted firefighters in resolving informal grievances and problems related to working conditions. We particularly note the Regional Director's finding that the firefighters participated in negotiations for a provision concerning the fire department in the draft collective bargaining agreement between AFGE and the Activity. Regional Director's Decision at 5.

We also conclude that the record does not support the FWFFA's assertion that the firefighters have not had a reasonable opportunity to participate in AFGE union affairs. Firefighters testified that they have been notified of AFGE meetings and did attend, or had the opportunity to attend. Transcript at 145-47, 173, 202. In addition, as the Regional Director noted, AFGE held two meetings