46:0832(73)RP - - Geological Survey, Water Resources Division, Southeastern Region, Caribbean District and AFGE - - 1992 FLRAdec RP - - v46 p832
[ v46 p832 ]
The decision of the Authority follows:
46 FLRA No. 73
FEDERAL LABOR RELATIONS AUTHORITY
U.S. GEOLOGICAL SURVEY
WATER RESOURCES DIVISION
AMERICAN FEDERATION OF GOVERNMENT
(45 FLRA 595 (1992))
DECISION AND ORDER ON REVIEW
December 3, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority for review of the Regional Director's (RD) decision and order on a petition for exclusive recognition filed by the Petitioner (AFGE). AFGE sought recognition in a unit of all professional and non-professional employees of the U.S. Geological Survey, Water Resources Division, Southeastern Region, Caribbean District (the Activity or the Caribbean District). The RD found the Caribbean District unit sought by AFGE was an appropriate unit and directed that an election be held in that unit.
The Activity filed an application for review of the RD's decision. In U.S. Geological Survey, Water Resources Division, Southeastern Region, Caribbean District, 45 FLRA 595 (1992) (U.S. Geological Survey), we granted the Activity's application for review as to the following issue:
Whether the Regional Director's conclusion that the employees of the Caribbean District constitute an appropriate unit within the meaning of the Statute is supported by the record and consistent with Authority precedent.
We also granted a stay of the RD's direction of election.
Pursuant to our order granting review, the Activity filed a supplemental brief and AFGE filed a brief in opposition to the Activity's application for review. For the reasons set forth below, we find that the RD's conclusion that the employees of the Caribbean District constitute an appropriate unit is supported by the record and consistent with Authority precedent.
II. Background and Regional Director's Decision
The U.S. Geological Survey (the Agency) is one of eight bureaus of the Department of the Interior. The Agency consists of five divisions, the largest of which is the Water Resources Division (WRD), headquartered in Reston, Virginia. The WRD consists of a headquarters office and four regional offices. Each of the regional offices is administered by a Regional Hydrologist who reports directly to the Chief Hydrologist in Reston.
The WRD's Southeastern Region, headquartered in Atlanta, Georgia, consists of 11 district offices located in 10 states and the Commonwealth of Puerto Rico. AFGE petitioned for a unit of all professional and nonprofessional employees of the Caribbean District. The Caribbean District Office is located in San Juan, Puerto Rico. The islands of St. Thomas and St. Croix each have a field office that comes under the administrative control of the Activity's District Chief. There are approximately 800 employees in the Southeastern Region who would be eligible for inclusion in a region-wide bargaining unit, and approximately 90 employees eligible for inclusion in the petitioned-for District Office bargaining unit. Of the 90 employees, 3 are in St. Thomas and 1 is in St. Croix.
The RD stated that "[t]he WRD considers itself unique in the [F]ederal establishment in that its managers are not given a fixed budget at the beginning of each fiscal year." Regional Director's Decision at 3. Some district projects are funded fully by Federal funds. For other projects, however, each District Chief is allocated Federal funds and is then responsible for developing co-operative agreements with local and state agencies within the district to match the Federal funds. This requirement creates a potential need to transfer employees from a district when the district fails to match Federal funds and loses a project.
Personnel management authority resides in the WRD, but the WRD has delegated much of this personnel authority to the District Chiefs. For example, a District Chief, including the Caribbean District Chief: (1) may approve all personnel action requests for employees at the GS-11 level and below; (2) has final authority as to some personnel actions such as disciplinary and adverse actions, performance-based actions, informal grievances within the agency grievance procedure, within grade increases, on-the-job training, overtime, and the detailing of employees within the district; and (3) has authority to recommend awards, details and travel outside the district, and extended training and travel.
The Agency's Administrative Division has a servicing personnel office in Norcross, Georgia, which provides personnel services to the Southeastern Region. The servicing personnel office is available to assist regional and district managers in personnel and employee relations matters. The servicing personnel office is required to advise district managers when those managers exercise their authority to take certain personnel actions, such as proposing and deciding to take performance-based actions or to remove a probationary employee. Where district managers must have regional office approval of personnel actions, the district managers' decisions typically are made in consultation with the regional office and the servicing personnel office and the regional office managers "rely upon [the district chiefs'] recommendations to a great degree." Id. at 6.
The area of consideration for district office vacancies at the GS-4 level and below is the local commuting area, and the area of consideration for district office vacancies above the GS-4 level is region-wide. Where the servicing personnel office has discretion in establishing the area of consideration for a vacancy in a particular office, "the district chief's recommendation is sought" as to "the best area of consideration to use[,]" and because of "the experience of the district office in locating candidates[,]" the recommendation "is usually followed." Id.
Each year the Agency conducts several program reviews of district office operations. A formal comprehensive review of all district operations is conducted by senior district management in conjunction with regional officials.
A discipline review is conducted by a team from outside the district to review the technical aspects of the district's discipline program. A personnel management evaluation is conducted by the Agency's administration division and, as an accommodation to the Caribbean District, the evaluation is conducted along with one person from the headquarters office who is fluent in Spanish. Unique to the Caribbean District is a career development review, a voluntary program conducted in conjunction with the Southeastern regional office in which employees' career development is examined in 2-year cycles. Finally, each district office conducts quarterly project reviews within its own district, and one of these quarterly reviews is attended by regional personnel.
The RD concluded that there are several conditions of employment that are unique to the Caribbean District. The RD states that the Caribbean District "is considered by the WRD as one of the more administratively complex districts in the nation" and that it "poses particular logistical and operational difficulties experienced by no other mainland district." Id. at 8. The RD further states that "due to the unique nature of the hydrology and operation of the district, guidelines issued by the [Agency] and the WRD are of only general assistance" and the district's managers must, therefore, be innovative in applying the guidelines to the district's problems. Id. Employees in the Caribbean District receive a cost of living allowance (COLA) not paid to other employees of the Southeastern region. "Home leave" for employees in the Caribbean District who were recruited from outside the District "is earned in accordance with specific statutory provisions and includes transportation to and from the employee's 'home' area." Id. Finally, the RD states that Spanish is used extensively in the district, making it the only district in the Southeastern region in which day-to-day business is routinely conducted in a language other than English.
Although bound by the policies of the Agency and the WRD, and given guidance by the Southeastern Region, "[t]he District Chief and the managers and supervisors under his direction are responsible for the day-to-day operation of the Caribbean District." Id. at 9. Concerns over employees' physical working conditions are brought to the District Chief. Examples of matters as to which the Caribbean District Chief has exercised his responsibility are: (1) finding a remedy for the frequent loss of electric power in office facilities resulting in loss of light and air conditioning; (2) the allocation of space, particularly to accommodate employees on temporary duty; (3) maintenance and updating of rest room and lunch room facilities; (4) a security system, particularly for the employees' parking; and (5) a safety program for the entire district.
An average of 3 employees annually are transferred permanently into or out of the Caribbean District and the transfers are made with the concurrence of the District Chief. "Training needs in the Caribbean District are determined by district office supervisors and managers with input from the . . . Regional office." Id. at 12. The district develops its own training budget and schedule and, since 1986, the District Chief's recommendations in this regard have always been approved by the regional office.
Because not every district office has employees with technical expertise in every phase of hydrology, an employee with certain expertise may be temporarily assigned to projects conducted by districts other than the district to which the employee is permanently assigned. During the fiscal years 1988 through 1991, a total of 14 Caribbean District employees travelled outside the district on technical matters and spent an average of 12 days on each trip. During the same time period, a total of 78 employees from elsewhere in the region and the continental United States travelled to the Caribbean District and spent an average of 13 days on each trip.
As noted above, AFGE petitioned for a unit of all professional and nonprofessional employees of the Caribbean District. The RD stated that, under section 7112(a)(1) of the Statute, "the Authority must determine in each representation case whether a proposed unit will ensure a clear and identifiable community of interest among the employees in that unit and will promote effective dealings with, and efficiency of the operations of, the agency involved." Id. at 14. The RD cited Defense Logistics Agency, Defense Contract Management Command, Defense Contract Management District, North Central Defense Plant Representative Office-Thiokol, Brigham City, Utah, 41 FLRA 316 (1991) (DPRO-Thiokol).
The RD noted the Activity's position that the only appropriate unit would be a region-wide unit. The Activity argued that employees in the petitioned-for unit of the Caribbean District do not have a community of interest separate from the other employees of the Southeastern Region because the administrative and personnel policies issued at the WRD and Agency levels severely limit the authority of the Caribbean District Chief. In support of its position, the Activity relied on the decision of the Assistant Secretary of Labor for Labor-Management Relations (Assistant Secretary) in United States Geological Survey, Department of the Interior, Water Resources Division, Central Region, Utah District, 7 A/SLMR 329 (1977) (Utah District), and the Authority's decision in Mid-Continent Mapping Center, National Mapping Division, U.S. Geological Survey, Rolla, Missouri, 4 FLRA 426 (1980) (National Mapping Division).
The RD found that the unit sought by AFGE is appropriate and he directed that an election be held in that unit. The RD found that this case differs from Utah District and National Mapping Division for several reasons. First, in Utah District, the Assistant Secretary found that the employees of the Utah District did not share a clear and identifiable community of interest separate from the other employees of their region. The RD found that, unlike the facts in Utah District, "the evidence here establishes that the employees of the Caribbean District work in an island setting at geographic locations remote from all the other districts in the Southeastern Region and that they share certain conditions of employment not found in any other district office in the region." Id. at 15.
The RD found that "the degree of interchange and transfer among employees of the Caribbean District and employees of other district offices in the Southeastern Region is not so extensive as to require a finding that only a region-wide unit of all WRD, Southeastern Region employees is appropriate." Id. Citing the specific numbers of employees involved in travel and transfer into and out of the District in the years prior to the petition, the RD stated that "I do not view any of the foregoing activity as sufficient to constitute that degree of integration of operations or interchange and transfer of personnel within the Southeastern Region which would negate the community of interest which, I have found, is shared by employees of the Caribbean District." Id. at 16.
In National Mapping Division, the petitioner sought, alternatively, one of three proposed units. The Authority found that none of the proposed units was appropriate because in each instance the proposed unit excluded some employees who shared an inseparable community of interest with the employees sought, organizationally, geographically, or both. The RD found that, unlike in National Mapping Division, "the petitioner here seeks a unit consisting of all of the employees of a separate organizational component who are employed in a geographic location which is remote from all of the other organizational components within its parent organization." Id.
The RD found that "the evidence establishes that employees of the Caribbean District have concerns which are local in nature." Id. The RD noted particularly that employees of the Caribbean District are the only employees in the region who receive a COLA and are eligible to earn home leave. The RD also noted that "the overwhelming majority of Caribbean District employees are recruited locally" and that "the Spanish language is used extensively" by a majority of the District employees. Id.
Having found that the District Chief had final authority to take certain personnel actions, that "the evidence establishes that the District Chief has responsibility for dealing with the day-to-day operations within the Caribbean District," and that the District Chief "has significant authority to act concerning matters involving personnel decisions and local working conditions," the RD concluded that "although the [District Chief] may receive guidance from the WRD regional and national levels and from the [Agency's] servicing personnel office, this does not preclude effective labor-management relations at the local level." Id. at 17.
The RD concluded that "the petitioned-for unit would neither cause undue fragmentation nor hinder the efficiency of the Caribbean District's, the WRD Southeastern Region's or the [Agency's] operations." Id. at 18. The RD "note[d] particularly that the Caribbean District Office is a separate, first-level, field organizational component of the WRD Southeastern Region . . . performing its portion of the WRD's mission" and that "the record clearly shows that the Caribbean District, working independently and with the assistance of its WRD regional and national levels[,] . . . has successfully established arrangements dealing with local working conditions . . . ." Id. The RD concluded "that the Caribbean District has the capability to deal effectively with an exclusive unit consisting of Caribbean District employees." Id.
Finally, "having determined that the employees share a community of interest at the local level, that a unit consisting of Caribbean District employees would result in an effective collective bargaining relationship and that there is no evidence to establish the existence of significant countervailing factors which would require a finding that only a larger unit is appropriate," the RD concluded that "the efficiency of the operations of the Caribbean District, the WRD and of the [Agency] will be promoted by granting exclusive recognition to a unit consisting of eligible employees of the Caribbean District." Id.
The RD noted that, under the principles established by the Authority in DPRO-Thiokol, he "must determine in each representation case whether a proposed unit will ensure a clear and identifiable community of interest among the employees in that unit and will promote effective dealings with, and efficiency of the operations of, the agency involved." Id. at 14. The RD stated that in reaching his conclusion, he had "applied the principles enunciated by the Authority in DPRO-Thiokol." Id. at 18. Quoting DPRO-Thiokol, 41 FLRA at 330, the RD also noted that he found equally applicable to the Caribbean District the following rationale of the Authority in that case:
[E]very agency has centralized control, directives and regulations in order to maintain uniformity within its organization. We do not dispute the need for maintaining a certain level of uniformity within an organization. If, however, the Authority were required to find units confined to one location to be inappropriate whenever the facts indicate some centralized control of administrative and personnel matters, we would find few local units to be appropriate. We do not believe that section 7112 of the Statute requires such a result.
Accordingly, the RD ordered that an election be held in the petitioned-for unit.
III. Positions of the Parties
The Activity contends that the RD's decision should be set aside. The Activity argues that the RD "fail[ed] to consider the interrelationship and inseparable community of interest of the Caribbean District from the other districts of the Southeastern Region of the Water Resources Division," "erroneously focused attention on just the Caribbean District and failed to discuss and consider the overall Regionwide integration of operations," and did not "consider the limited personnel and other limited authorit[y] of the District Chief of the Caribbean District." Application at 1-2. As to all these factors, the Activity asserts that the RD failed to consider Authority precedent, particularly the findings and conclusions of the Assistant Secretary in Utah District, which the Activity argues is a case "on 'all fours' with" this case. Id. at 1.
Specifically, the Activity asserts that the RD "overly accentuated the minor unsupportable testimony and ignored the overwhelming supportable evidence." Id. at 2. For example, according to the Activity, the RD gave "no consideration" to certain evidence as to travel; "ignored" evidence concerning training trips and telephone calls and messages; and "did not address" evidence regarding transfers. Id. The Activity also asserts that the RD "prejudicially and erroneously claimed that the Caribbean District is unique in that District employees earn home leave, COLAs, speak Spanish, and practice hydrology differently within the District." Id. at 3.
The Activity contends that "[t]hus, the Regional Director's justification for a separate and distinct unit was based upon[:] (1) an erroneous logistical issue of remoteness of the island which was in direct conflict with the evidence; (2) an erroneous understanding that the science within the Caribbean District is practiced differently; (3) the statutory entitlements of COLA and home leave; and (4) the speaking of Spanish." Id. The Activity asserts that "[a]s evident from the above, there is a clear, arbitrary and prejudicial pattern of the Regional Director excluding all evidence favorable to the Agency." Id. (emphasis deleted).
The Activity asserts that, contrary to the RD's findings, the Caribbean District: (1) "is totally dependent upon the expertise of the Servicing Personnel Office" and "has no independent capability" to service its employees beyond "filling out forms"; (2) "has very limited personnel authority" and must "constantly coordinate with" and receive approval from the Region for budget, projects, training, and travel; and (3) is mutually dependent on the other district offices within the region. Id. at 30. In the Activity's view, "[t]he facts in this case are essentially the same as those in the Utah District case," and the Authority should find, therefore, that the Caribbean District is not an appropriate unit. Id. The Activity asserts that the RD "totally ignored the integrative nature of the Southeastern Region's operations," and contends that the only appropriate unit "is at the Regional level and not at the level of the Caribbean District." Id. at 29.
In its supplemental brief, the Activity reiterates the arguments it made in its application for review. The Activity notes the lack of "substantive personnel expertise" at the district level and the "limited authorities of district chiefs," and emphasizes the "extensive integration of mission and functions within the Southeastern Region." Activity's Supplemental Brief (Brief) at 2. The Activity requests that we find the RD's decision is clearly erroneous and that we set aside the decision and dismiss the petition in this case.
The Activity also states that, on May 11, 1992, after the RD issued his decision, the Caribbean District was reorganized as "part of a national on-going reorganization." Application at 30. According to the Activity, the Southeastern Region will consist of four areas. The Caribbean District, along with the Florida District, will make up one area, and the district chiefs will report to an Area Assistant Regional Hydrologist located in Tallahassee, Florida. Id.; Brief at 2. As a result, the recommendations of the Caribbean District Chief must now "first be accepted by the Area Assistant Regional Hydrologist, who in turn must make his/her recommendations to the Region." Id. According to the Activity, this reorganization supports the Activity's position that the Caribbean District is not an appropriate unit because the reorganization "further limits the authority of managers at the district level." Id.
AFGE opposes the Activity's application for review. AFGE argues that the RD's decision was based on record evidence and applicable Authority precedent and should be upheld by the Authority.
IV. Analysis and Conclusions
We find that the RD's conclusion that the employees of the Caribbean District constitute an appropriate unit within the meaning of the Statute is supported by the record and consistent with Authority precedent.
A. Procedural Matters
1. Evidentiary Rulings
The Activity alleges that Petitioner's Exhibit 4 (PE 4) was "arbitrarily and capriciously admitted" into evidence by the hearing officer, even though management had "strenuously objected to the introduction" of the exhibit. Application at 25. The Activity requests that we reverse the hearing officer's ruling. PE 4 was an electronic message from a supervisory employee in the Caribbean District to a nonsupervisory employee outside the Southeastern Region who was interested in transferring to the Caribbean District expressing the supervisor's personal opinion about the working conditions in the Caribbean District. The Activity alleges that the electronic message was an unauthorized communication and that the RD improperly relied on the document "to prove the uniqueness of the Caribbean District." Id.
The Activity has failed to demonstrate that the admission of PE 4 into evidence constituted prejudicial error within the meaning of section 2422.17(c)(3) of our Regulations. Moreover, the Activity has failed to demonstrate that the RD improperly relied on PE 4 in making his determinations in this case. Accordingly, we reject the Activity's contentions as to the admission into evidence of PE 4.
The Activity also contends that "there is a clear, arbitrary and prejudicial pattern of the Regional Director excluding all evidence favorable to the Agency." Id. at 3 (underscoring omitted). With the exception of the allegation as to PE 4 discussed above, however, the Activity has not alleged how any rulings in connection with the proceeding should be construed as a refusal to admit any evidence favorable to the Activity. To the extent that the Activity's contention may be construed as an allegation that the RD's consideration of the evidence received was prejudicial, we find that the allegation is without merit. As we find below, the RD's conclusions are based on substantial record evidence and, in our view, the Activity has not shown that the RD has chosen to consider only evidence favorable to the Petitioner, while ignoring evidence favorable to the Agency.
2. The Reorganization
As noted above, the Activity states that the Southeastern Region was reorganized on May 11, 1992. We have not considered the effect of the claimed reorganization in reaching our decision in this case. Because the reorganization took place subsequent to the RD's decision, the facts pertaining to the claimed reorganization were not a part of the record considered by the RD in reaching his decision. On review, the Authority may consider only the facts that were before the RD. See 5 C.F.R. § 2422.17(b) ("An application may not raise any issue or allege any facts not timely presented to the Regional Director."). See also U.S. Department of the Air Force, 842nd Combat Support Group, Grand Forks Air Force Base, North Dakota, 40 FLRA 1025, 1031 (1991) (the Authority denied an activity's request to remand the case to the regional director to consider the effect on an appropriate unit finding of substantive changes in the activity's organizational structure that took place after the regional director's decision issued).
B. The Activity's Other Contentions
We reject the Activity's contentions that the RD stressed the evidence unique to the Caribbean District and more favorable to the Union's position, failed to consider the extent of the authority of the Caribbean District Chief and the interrelationship of the Caribbean District and the other districts of the Southeastern Region, and failed to consider and apply Authority precedent. On the contrary, we find that the RD fully considered the evidence and arguments of the Activity. While the RD found that there were certain conditions of employment unique to the Caribbean District, these conditions were only one part of the many factors on which the RD relied in reaching his conclusion.
The RD found that each of the District Chiefs is allocated Federal funds and is then responsible for developing co-operative agreements with local agencies within their respective districts. The RD further found that: (1) while personnel management authority resides in the WRD, the WRD has delegated much of this personnel authority to the District Chiefs; (2) although a regional servicing personnel office is available to assist the District Chiefs in all personnel actions, and the District Chiefs must have the approval of regional management for certain personnel-based actions, the regional managers rely on the recommendations of the District Chiefs to a great degree in personnel matters; and (3) although bound by the policies of the Agency and the WRD, the District Chief is responsible for the day-to-day operation of the Caribbean District. The RD concluded that the District Chief of the Caribbean District has significant authority to act concerning matters involving personnel decisions and local working conditions and the guidance received from the regional and national levels does not interfere with effective labor-management relations at the level of the Caribbean District.
The RD considered the interrelationship of the Caribbean District with the other districts of the Southeastern Region, including the degree of interchange and transfer among the districts. The RD concluded that the degree of integration of operations within the region was not so extensive as to require a finding that only a region-wide unit is appropriate and that it did not negate the separate community of interest which he found is shared by the employees of the Caribbean District. While the Activity asserted, for example, that the RD gave "no consideration," or "ignored," or "did not address" evidence as to travel, training trips, and transfers of employees (Application at 2), the RD did discuss the evidence as to these matters. See RD's Decision at 11-13.
The Activity disagrees with the RD's conclusion that the evidence demonstrates that the employees of the Caribbean District possess a community of interest within the meaning of section 7112 of the Statute and that the proposed unit will promote effective dealings with, and efficiency of the operations of, the Agency. The Activity has not shown, however, that the RD's conclusions based on that evidence are inconsistent with section 7112 or with relevant precedent. We disagree with the Activity's contention that the RD failed to consider and apply relevant precedent and departed from the precedent set by the Assistant Secretary in Utah District. As noted above, the RD did consider and apply Authority precedent, and specifically found this case to be different from Utah District.
Specifically, in Utah District, the Assistant Secretary found that the employees of the Utah District did not share a clear and identifiable community of interest separate and distinct from other regional employees because of the extensive integration of operations and substantial interchange and transfer of personnel within the region. The Assistant Secretary also found that, in view of these factors, a separate unit of Utah District employees would not promote effective dealings and efficiency of agency operations. As note above, the RD found that, unlike the facts in Utah District, "the evidence here establishes that the employees of the Caribbean District work in an island setting at geographic locations remote from all the other districts in the Southeastern Region and that they share certain conditions of employment not found in any other district office in the region," and "the degree of interchange and transfer among employees of the Caribbean District and employees of other district offices in the Southeastern Region is not so extensive as to require a finding that only a region-wide unit of all WRD, Southeastern Region employees is appropriate." Id. at 15.
In sum, the RD found that the Caribbean District employees share a community of interest separate from other regional employees and that a unit of Caribbean District employees will promote effective dealings with, and efficiency of the operations of, the Agency. We find that the Activity has not demonstrated that the RD's application of the criteria for determining the appropriateness of a unit to the facts in this case is clearly erroneous. We find, contrary to the Activity's assertions, that the RD's conclusion that the em