43:0990(81)CA - - DOD, Defense Distribution Region West, Tracy, CA and AFGE, Local 2029, et al - - 1992 FLRAdec CA - - v43 p990



[ v43 p990 ]
43:0990(81)AR
The decision of the Authority follows:


43 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

U.S. DEPARTMENT OF DEFENSE
DEFENSE DISTRIBUTION REGION WEST
TRACY, CALIFORNIA
(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2029
(Labor Organization/Petitioner)

9-RO-00007


U.S. DEPARTMENT OF DEFENSE
DEFENSE DISTRIBUTION REGION WEST
TRACY, CALIFORNIA
(Activity)

and

LABORERS INTERNATIONAL UNION
LOCAL 1276
(Labor Organization/Petitioner)

and

DEPOT EMPLOYEES COUNCIL
(Incumbent Labor Organization)

9-RO-00008

 

U.S. DEPARTMENT OF DEFENSE
DEFENSE DISTRIBUTION REGION WEST
TRACY, CALIFORNIA
(Activity)

and

LABORERS INTERNATIONAL UNION
LOCAL 1276
(Labor Organization/Petitioner)

and

UNITED POLICE AND SECURITY ASSOCIATION
(Incumbent Labor Organization)

9-AC-00008

U.S. DEPARTMENT OF DEFENSE
DEFENSE DISTRIBUTION REGION WEST
TRACY, CALIFORNIA
(Activity/Petitioner)

and

LABORERS INTERNATIONAL UNION
LOCAL 1276
(Incumbent Labor Organization)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Incumbent Labor Organization)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1546
(Incumbent Labor Organization)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1681
(Incumbent Labor Organization)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1533
(Incumbent Labor Organization)

and

DEPOT EMPLOYEES COUNCIL
(Incumbent Labor Organization)

and

UNITED POLICE AND SECURITY ASSOCIATION
(Incumbent Labor Organization)

9-RA-10001

ORDER DENYING AND DISMISSING APPLICATIONS FOR REVIEW

January 14, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I.  Statement of the Case

    This case is before the Authority on applications for review filed by the Defense Logistics Agency Council of AFGE Locals (AFGE Council)1/ and AFGE Local 1681 (Local 1681) under section 2422.17(a) of the Authority's Rules and Regulations.2/ The Activity filed an opposition3/ to the application for review filed by Local 1681.4/

    Both applications seek review of the Regional Director's (RD's) decision and direction of an election in Case No. 9-RA-10001.5/ For the following reasons, we will deny the applications.

II. Background

    In early 1990, the Department of Defense decided to consolidate the supply distribution functions of the military services on a regional basis by transferring the assets and personnel of those services to DLA. In June 1990, supply functions and employees of the former Defense Depot Tracy, Sharpe Army Depot, and Naval Supply Center Oakland were transferred organizationally to DLA's Defense Distribution Region West (the Activity). In April 1991, other supply functions were transferred organizationally to the Activity including approximately 250 employees of the Sacramento Army Depot represented by Local 1681.

    Various petitions were filed with respect to representation of the Activity's employees. Among others, AFGE Local 2029 petitioned for an election among approximately 10 employees in the Activity's Fire Prevention and Protection Branch (9-RO-00007); AFGE, representing a nationwide, consolidated unit of nonprofessional DLA employees, petitioned for clarification of the nationwide unit to include the Activity's employees (3-CU-10001); and the Activity filed a petition asserting that existing bargaining units were no longer appropriate because of substantial changes resulting from the organization of the Activity (9-RA-10001). These petitions were consolidated for decision by the Regional Director.

III.Regional Director's Decision

    The RD concluded that the unit involved in Case No. 9-RO-00007 was not appropriate because the affected employees did not share a community of interest separate and apart from other Activity employees. Accordingly, the RD dismissed the petition filed by AFGE Local 2029 in that case. In addition, the RD noted that the petition in 3-CU-10001 had been withdrawn.

    In Case No. 9-RA-10001, the RD concluded that the Activity's petition was not barred by an existing AFGE/DLA agreement covering the consolidated unit. The RD noted that no other agreements were asserted as bars to the Activity's petition but, even if such assertions were made, he would find that, as a result of changed circumstances, no bars existed.

    The RD also concluded that existing units encompassing the Activity's employees were no longer appropriate and that a unit of all nonprofessional employees of the Activity was appropriate. Accordingly, the RD directed an election to be held among such employees to determine whether they desire to be represented by any of a number of labor organizations currently representing affected employees, including Local 1681 and AFGE. The RD did not include AFGE Local 2029 among such labor organizations, however, because, according to the RD, Local 2029 is not an incumbent representative of any affected employees, is not a party to Case No. 9-RA-10001, and did not request to intervene in that case.

 IV. Positions of the Parties

    A.  Local 1681's Application for Review

    Local 1681 contends that employees of the Sacramento Army Depot who have been organizationally transferred to the Activity are covered by an existing collective bargaining agreement. Local 1681 argues that these employees may not be included in the election ordered by the RD because the agreement constitutes a contract bar.

    B.  Activity's Opposition

    The Activity argues that Local 1681's application for review should be dismissed because the application was not timely served on the Activity and because the contract-bar issue it raises was not presented to the RD. The Activity also argues that, if the argument is considered, it should be rejected as mere disagreement with the RD's decision.

    C.  AFGE Council's Application for Review

    AFGE Council argues that, as the exclusive representative of a nationwide unit of DLA employees, it should represent the Activity's employees as part of that unit. The Council maintains that such representation is consistent with a provision in an existing collective bargaining agreement with DLA and that the RD's decision creates an improperly fragmented unit. According to AFGE Council, the RD's statement that Local 2029 is not an incumbent representative of any Activity employees is clearly erroneous because Local 2029 is the only union involved in 9-RA-10001 that represents part of the consolidated DLA unit. AFGE Council requests that the Activity's employees "be included in the DLA-wide consolidated AFGE bargaining unit or at least be given the opportunity to vote for AFGE as their exclusive representative and to become part of the DLA-wide consolidated unit as a result of that vote." AFGE Council Application at 3.

V.  Analysis and Conclusions

    Upon consideration of the applications for review, we conclude that compelling reasons do not exist under section 2422.17(c) of the Authority's Rules and Regulations for granting review of the RD's decision. We will address separately the two applications.

     A.  Local 1681's Application

    We reject the Activity's argument that Local 1681's application was not timely filed. The application was filed (postmarked) on December 4, 1991, before the December 7, 1991, deadline for such filing. Although the application was not properly served on the Activity at the time it was filed with the Authority, the Council subsequently corrected this deficiency. Accordingly, we consider Local 1681's application timely filed.

    An application for review "may not raise any issue or allege any facts not timely presented to the Regional Director." 5 C.F.R. § 2422.17(b). It is undisputed that Local 1681's argument that its collective bargaining agreement constitutes a contract bar was not presented to the RD. See RD's Decision at 19 n.13 ("No par