43:0264(24)CU - - VA Affairs Medical Center, Allen Park, MI and AFGE Local 933 - - 1991 FLRAdec RP - - v43 p264



[ v43 p264 ]
43:0264(24)CU
The decision of the Authority follows:


43 FLRA No. 24

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

ALLEN PARK, MICHIGAN

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 933

(Labor Organization/Petitioner)

5-CU-00012

ORDER DENYING APPLICATION FOR REVIEW

November 22, 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 (the Union) under section 2422.17(a) of the Authority's Rules and Regulations. The Activity filed an opposition to the Union's application for review. The Union seeks review of the Regional Director's (RD's) dismissal of the Union's clarification of unit (CU) petition. For the following reasons, we will deny the application for review.

II. Background

In 1966, the Activity granted exclusive recognition to the Union for a bargaining unit of certain employees of the Activity and the Veterans Canteen Service. Temporary employees were specifically excluded from the unit. The parties' 1966 collective bargaining agreement specifically excluded temporary employees, as did ground rules agreements negotiated in 1971 and 1974. Although the parties' 1977 collective bargaining agreement incorporated by reference the 1966 grant of exclusive recognition, the agreement was silent with respect to temporary employees.

In 1980 and 1983, the American Federation of Government Employees, AFL-CIO (AFGE) was certified as the exclusive representative of a nationwide consolidated unit of employees of the Veterans Administration, including the unit employees of the Activity. The certifications are silent with respect to temporary employees. The Union filed the instant CU petition to clarify the status of temporary employees.

III. Regional Director's Decision

The RD noted that when a CU petition seeks to include employees who originally were excluded from a unit, the petitioner must provide evidence that there were meaningful changes in the duties and functions of such employees after the unit was recognized or certified. The RD cited U.S. Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 111 (1991) (Langley); Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 39 FLRA 899 (1991) (Defense Mapping); and Federal Trade Commission, 35 FLRA 576 (1990) (FTC).

The RD found that temporary employees were excluded from the unit as originally recognized and that "there has been virtually no change in any significant aspect of the duties and functions of the Activity's temporary employees from 1966 to the present." RD's Decision at 3. The RD concluded that the record did not support the Union's argument that temporary employees historically were included in the unit. The RD noted that, in any event, bargaining history is not controlling in determining whether previously excluded employees subsequently may be included in a unit through a clarification proceeding. The RD concluded that, in these circumstances, the Union's CU petition should be dismissed. The RD noted that the Union could seek to represent temporary employees by filing a representation (RO) petition.

IV. The Positions of the Parties

A. The Application for Review

The Union asserts that its application for review should be granted because the RD's decision: (1) raises a substantial question of law and policy because of a departure from Authority precedent; and (2) is clearly erroneous on a substantial factual issue and such error prejudicially affects its rights.

The Union acknowledges that temporary employees were excluded from the unit in 1966. The Union argues, however, that temporary employees historically were included in the unit. The Union notes that Authority certifications issued in 1980 and 1983 did not exclude temporary employees from the unit. According to the Union, temporary and permanent employees share a clear and identifiable community of interest and should not be severed from the existing unit. The Union also claims that, as it historically has represented temporary employees, an election among them is unnecessary.

B. The Opposition

The Activity asserts that the RD correctly applied Authority precedent in dismis