48:0650(65)CU - - Air Force, 90th Missile Wing (SAC), F.E. Warren AFB, Cheyenne, WY and AFGE, Local 2354 - - 1993 FLRAdec CU - - v48 p650



[ v48 p650 ]
48:0650(65)CU
The decision of the Authority follows:


48 FLRA No. 65

                                        FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

90TH MISSILE WING (SAC)

F. E. WARREN AIR FORCE BASE

CHEYENNE, WYOMING

(Activity/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2354

(Labor Organization)

DE-CU-20016

_____

ORDER DENYING APPLICATION FOR REVIEW

October 8, 1993

_____

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 Activity under section 2422.17(a) of the Authority's Rules and Regulations. In its petition before the Regional Director (RD), the Activity sought to clarify the bargaining unit for which the American Federation of Government Employees, Local 2354 (AFGE) is the exclusive representative to exclude employees classified as flexible employees. In her Decision and Order on Petition for Clarification of Unit, the RD clarified the unit to include the flexible employees.

The Activity seeks review of the RD's decision. AFGE did not file an opposition to the application for review. For the reasons discussed below, we find that the Activity has not established any basis for review of the RD's Decision and Order. Accordingly, we will deny the application for review.

II. Background and Regional Director's Decision

On March 7, 1974, AFGE was certified as the exclusive representative of a bargaining unit of the Activity's employees. As pertinent to this decision, the unit included all nonappropriated fund (NAF) employees employed as regular full-time (RFT), regular part-time (RPT), temporary full-time (TFT), temporary part-time (TPT), and intermittent part-time employees with regularly assigned tours of duty (IOPT); and excluded NAF employees employed as intermittent part-time employees with no regularly assigned tours of duty (IOC).(*)

At the time of AFGE's certification in 1974:

RFT and RPT employees worked 35-40 hours per week and 20-34 hours per week respectively with regularly scheduled tours of duty and full fringe benefits[,] including annual/sick leave, [a] retirement plan, and health/life insurance; TFT employees were similar to RFT employees, except that their appointments had a specified, not-to-exceed (NTE) termination date, and they were not eligible for a retirement plan; TPT employees were similar to RPT employees, with the same exceptions to which TFT employees were subject; IOPT employees worked from 1-19 hours per week with regularly scheduled tours of duty, but with no fringe benefits; and the excluded IOC employees worked 0-40 hours [per week], without a guaranteed basic work week or fringe benefits.

RD's Decision at 3-4. The RD found that "the common thread among the included RFT, RPT, TFT, TPT and IOPT employees was not that they all had regularly scheduled hours," but rather "that they all had a guaranteed number of work hours per week, while the IOC employees did not." Id. at 4.

On or about September 1, 1988, the Air Force's Experimental Personnel Office (EXPO) program was implemented at the Activity. Under the EXPO program, the previous NAF employee categories were eliminated and replaced with two categories, permanent (PE) and temporary (TE). The PE category was made up of the former RFT and RPT employees, and the TE category was made up of the former TFT, TPT, IOPT, and IOC employees. Under EXPO program guidelines, PE employees worked 20-40 hours per week and were entitled to a full range of benefits; TE employees worked 1-40 hours per week and were eligible only for overtime pay and awards. A permanent appointment was "of a 'continuing nature,'" while "'a temporary appointment [was] used when the work [was] temporary, limited or sporadic in nature[.]'" Id.

The RD found that although, according to management, only PEs had a regularly assigned tour of duty under the EXPO program, there was no evidence that PEs and TEs did not work within the established hours per week set forth for their respective categories in the guidelines. The RD noted that the EXPO guidelines included a sample letter of reprimand applicable to both PEs and TEs, which advised the PEs and TEs of their right to grieve under the parties' negotiated agreement. The RD found that "thus, it appears that it was the intent of both parties at that time to consider both PEs and TEs as included in the AFGE's NAF unit." Id. at 5.

By letter dated August 17, 1989, the Activity notified AFGE that, effective September 1, 1989, TEs would thereafter be designated as flexible employees (FEs). The RD noted that, although management contended that this change in designation was nothing more than a name change, the August 17, 1989 letter to AFGE specifically stated that its purpose was to notify AFGE of two changes to the EXPO program guidelines, the "second such change to be that '. . . employees may be scheduled 0-40 hours per week under a flexible appointment.'" Id.

On January 19, 1991, the Agency implemented an Agency-wide Program Action Directive (PAD) based on the results of the EXPO program. The PAD became the primary document governing the personnel administration of NAF employees. Either on or before the implementation of the PAD on January 19, 1991, PEs were redesignated as regular employees (REs). Under the PAD, which was still in effect at the time of the hearing in this case, there are only two employment categories--REs and FEs. The RE category incorporates the former RFT and RPT categories of employees, and the FE category incorporates all the former temporary categories of employees. Under the PAD, the nature of FEs' appointments at the Activity has been "generally the same as it was when the flexible designation was first implemented at the Activity on or about September 1, 1989[.]" Id. at 6.

The Activity argued before the RD that the evidence established that "intermittent part-time [employees] with no regularly assigned tours of duty" had originally been excluded from the bargaining unit, and that "the intervening genealogy" of the FE category included the categories of temporary employees and intermittent on-call employees (under the EXPO program). Id. The Activity argued, therefore, that the FE category was "the direct descendant of a category of employees that was specifically excluded" from the certified unit, and should now be excluded from that unit. Id. The Activity relied on the Authority's decision in U.S. Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 111 (1991) (Langley), in which the Authority upheld a Regional Director's denial of a union's attempt to clarify its bargaining unit to include temporary employees who had been redesignated as variable schedule (VS) employees. Finally, the Activity argued that FEs do not have a reasonable expectation of continued employment, but rather share a community of interest separate and distinct from the REs, who alone should be found to make up the bargaining unit.

The RD rejected the Activity's arguments. The RD first noted that the Activity claimed that the parties had reached an oral agreement in November 1990 that FEs would be excluded from the bargaining unit. AFGE denied that such an agreement was ever made. The RD found it unnecessary to resolve this issue, stating that, even assuming that such an agreement was made, she could not be bound by such an agreement in reaching a determination as to unit eligibility issues. The RD found, contrary to the Activity, that the record shows that the FE category is not the direct descendant of the IOC category alone, which had been the only excluded category of employees. Rather, the RD found that the FE category is the same as the TE category created under the EXPO program, and the TE category "was created through the merger of three pre-existing employment categories, TFT, TPT, and IOPT, all three of which had been specifically included in the original NAF unit certification, with an employment category, IOC, which had been specifically excluded in the original certification." Id. at 8. The RD further found that this merger "constituted a meaningful change in the employment status" of bargaining unit employees. Id. The RD thus distinguished this case from the Langley case relied on by the Activity, which involved only the direct redesignation of one category of employees. The RD found that she was, therefore, not precluded from considering whether FEs should be included in the bargaining unit.

The RD further found that FEs do not have a community of interest separate and distinct from REs. In this regard, the RD noted the many similarities in the overall working conditions of FEs and REs and found that FEs have "sufficient reasonable expectations of continued employment[,] since there is no . . . specific term limitation on their employment, and . . . [FEs] are converted with some frequency to regular appointments." Id. at 9 (footnote omitted). The RD concluded that exclusion of FEs from the bargaining unit would result in unit fragmentation and would inhibit effective dealings and efficiency of agency operations, while inclusion will benefit and promote effective dealings with and promote the overall efficiency of Agency operations. Accordingly, the RD stated that she would issue an order clarifying the bargaining unit to include the FE employees.

III. Application for Review

The Activity filed its application for review under section 2422.17(c) of the Authority's Rules and Regulations, and requests that "the category of 'flexible employees' be excluded from the NAF bargaining unit." Application at 7.

Accordingly to the Activity, under the EXPO program, "[t]he 'temporary' category [of employees] included all employees with no set tour of duty, basically the 'intermittent on-call' employees . . . ." Id. at 1-2. The Activity argues that, because the temporary category became the flexible category, the FE employees "are the direct descend[a]nts of 'intermittent part-time employees with no regularly assigned tours of duty' specifically excluded under the terms of the original certification of [the] unit in 1974." Id. at 2. The Activity contends, therefore, that because FEs "retain[] all the salient features of the originally excluded" IOC employees, all FEs should be excluded from the bargaining unit. Id. at 3. The Activity cites Authority cases that hold that a clarification of unit petition may not be used to include employees previously excluded from a bargaining unit, absent a meaningful change in the job duties of the employees in question.

The Activity states that under the Statute a unit may be found appropriate only if there is a clear and identifiable community of interest among the employees in the unit and if the unit will promote the efficiency of agency's operations. The Activity argues that there are significant differences in the benefits enjoyed by flexible employees and regular employees and, therefore, these employees do not share a clear and identifiable community of interest. The Activity asserts that including FEs in the bargaining unit "will decrease managers' flexibility in scheduling employees and therefore will increase costs prohibitively." Id. at 5. The Activity further asserts that "having to bargain over changes in work hours, for example, would hamper a manager's ability to respond to cyclical or seasonal changes in demand for various services," and thus would significantly hinder the efficiency of the Agency's operations. Id.

The Activity cites Authority cases that hold that employees who have "no 'reasonable expectation of continued employment'" must be excluded from such units. Id. at 2. In this regard, the Activity argues, without more, that FEs have no expectation of continued employment because they have no guaranteed hours of work.

IV. Analysis and Conclusions

We construe the Activity's application for review as asserting, under section 2422.17(c)(1) and (4), that the RD's decision raises a substantial question of law or policy because of a departure from Authority precedent, and that the decision is clearly erroneous on substantial factual issues and such error prejudicially affects the rights of the Activity. We conclude, for the following reasons, that compelling reasons do not exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the Activity's application for review.

Based on the record evidence, the RD traced the history of the FE category of employees the Activity now seeks to exclude from the bargaining unit. The RD found that, under the EXPO program, the temporary category of employees included TFT, TPT, and IOPT employees, who had been included in the original certified unit; and IOC employees, who had been excluded. The RD further found that the FE category of employees here in question was the same as the temporary category of employees under the EXPO program. The RD rejected the Activity's claim that the FE employees were the same as only the IOC employees originally excluded from the bargaining unit. The RD thus distinguished this case from the Langley case relied on by the Activity because Langley involved only the direct redesignation of a single category of employees.

Having established that the FE category of employees includes groups of employees included in the original certified unit, the RD also found, based on the record, that: (1) FEs have a reasonable expectation of continued employment; (2) FEs have a community of interest with the bargaining unit employees; (3) excluding FEs from the bargaining unit would result in unit fragmentation; and (4) including FEs in the unit will promote effective dealings with, and efficiency of the operations of, Agency operations.

In reaching her decision, the RD considered and rejected the Activity's arguments that the record supports different findings of fact. The RD also considered and rejected the Activity's arguments with regard to Authority precedent, distinguishing this case from the cases cited by the Activity.

We have reviewed the record in this case. We find, contrary to the Activity's assertions, that the record supports the RD's findings that the FE employees are the same as the temporary category of employees under the EXPO program, and that the FEs have a reasonable expectation of continued employment and share a community of interest with bargaining unit employees. We agree with the RD's basis for distinguishing this case from Langley. We also find that the record supports the RD's conclusion that including FEs in the bargaining unit will promote effective dealings with, and efficiency of the operations of, the Agency.

Accordingly, we find that the RD's conclusion that it is appropriate to clarify the bargaining unit to include FEs is consistent with Authority precedent. In this regard, we note that the FE category of employees includes three categories of employees that had been specifically included in the certified bargaining unit and one category that had been excluded (IOC employees). The record does not show, and therefore we make no determination regarding, whether or not there presently are any employees who would fit the definition of the IOC employees originally excluded from the certified unit. We find only, as did the RD, that based on the record in this case, the FEs have a reasonable expectation of continued employment. We recognize, as noted by the RD, that where the Activity can show that the incumbent of a particular position does not have a reasonable expectation of continued employment as defined by the RD, "such an employee may normally be appropriately excluded from the unit of exclusive recognition." RD's Decision at 9 n.9.

In sum,