48:1258(133)RO - - GSA, Las Vegas Fleet Management Center, Sparks Field Office, Sparks, NV and AFGE Council 236 - - 1993 FLRAdec RO - - v48 p1258
[ v48 p1258 ]
The decision of the Authority follows:
48 FLRA No. 133
FEDERAL LABOR RELATIONS AUTHORITY
GENERAL SERVICES ADMINISTRATION
LAS VEGAS FLEET MANAGEMENT CENTER
SPARKS FIELD OFFICE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER ON APPLICATION FOR REVIEW
December 30, 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 Petitioner (Council 236) under section 2422.17(a) of the Authority's Rules and Regulations.
In its petition before the Regional Director (RD), Council 236 sought an election to determine whether certain employees wished to be included in an existing consolidated unit. In his Decision and Order, the RD found that because the unit sought by the petition does not constitute an appropriate unit, no election was warranted. Accordingly, the RD dismissed the petition.
Council 236 seeks review of the RD's decision. The Activity did not file an opposition to the application for review. On consideration of the application for review, we find that a substantial question of law or policy is raised because of the absence of Authority precedent on an issue ruled on by the RD. Therefore, we grant the application for review. On review of the RD's decision, for the reasons discussed below, we find that the petition must be dismissed.
On September 10, 1980, in Case No. 3-UC-1, the American Federation of Government Employees (AFGE) was certified as the exclusive representative of a consolidated bargaining unit of all nonprofessional employees of the General Services Administration (GSA) for which AFGE and its affiliated Locals/Councils held exclusive recognition. Included in the consolidated unit was a unit comprised of all wage grade employees of GSA's motor pool at Reno and Carson City, Nevada, for which Council 236 held exclusive recognition. These wage grade employees were automotive equipment repair mechanics and inspectors. Motor pools were part of GSA's fleet maintenance operations, with 10 fleet maintenance centers throughout GSA's Region 9.
In 1986, GSA contracted out all vehicle maintenance and repair work and restructured its fleet maintenance operations. The Reno motor pool became a field office of the Las Vegas Fleet Maintenance Center. There were no longer any fleet maintenance employees at Carson City, and only one nonsupervisory inspector remained at Reno. Mechanical work was no longer performed by GSA. There was still a need for automotive inspection work, but the duties of the inspectors changed.
In 1988, the Reno Field Office was moved approximately two miles to new space in Sparks, Nevada. The one nonsupervisory inspector at Reno, a WG-11 Automotive Equipment Repair Inspector, was moved to Sparks.
In 1991, all automotive inspectors throughout GSA's Region 9 were reclassified to reflect the changes in their duties. The Sparks inspector was reclassified as a GS-9 Equipment Specialist (Automotive). Council 236 filed an amendment of certification (AC) petition in Case No. SF-AC-30027 seeking to reflect the change in the location of the Reno field office to Sparks, thereby including the single equipment specialist in the consolidated unit. The Acting Regional Director (ARD) noted that the AC petition was not the appropriate vehicle to obtain the result requested by Council 236, but decided to reach the issues presented by treating the petition also as a clarification of unit (CU) petition.
The ARD found that the changes in the duties of the automotive inspectors in 1986 were substantial and the reclassification in 1991 was merely a reflection of those changes, and there was no evidence that the parties considered the Sparks employee as included in the consolidated unit since 1986. The ARD, therefore, denied the petition to amend the certification and refused to clarify the consolidated unit to reflect the change in the location of the Reno field office to Sparks and to include the Sparks employee in the unit. Because there were no longer any unit employees at Reno or Carson City, the ARD clarified the consolidated unit by deleting from it the unit of all wage grade employees of GSA's motor pool at Reno and Carson City. Decision and Order, Case No. SF-AC-30027 (May 13, 1993). No application for review of the ARD's decision and order in that case was filed.
III. Regional Director's Decision
In September 1993, Council 236 filed the certification of representative (RO) petition in this case seeking an election to determine whether employees in a unit consisting of "[a]ll nonprofessional employees at the Sparks, Nevada Field Office" wish to be included in the consolidated unit of all nonprofessional employees of GSA for which AFGE was certified in Case No. 3-UC-1. RD's Decision at 1.
The RD found that there is only one employee in the unit sought--the Sparks equipment specialist. Before the RD, GSA took the position that the employee's inclusion in the consolidated unit was not appropriate "because the employee at Sparks does not have an identifiable community of interest separate and apart from eligible employees at the Las Vegas Fleet Management Center and employees at other unrepresented fleet management offices within GSA Region 9." Id.
Based on established Authority policy, the RD found that, where a union petitions for an election to add employees to an existing unit, the inclusion of such employees must result in an overall unit which meets the standards set forth in section 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute). In addition, the RD found that where the unit is a residual unit (that is, a unit of all eligible unrepresented employees of the employer), the unit may not have to meet those standards; however, where the unit is not a residual unit, the unit must meet those standards and constitute a separate appropriate unit.
The RD found that, "in order to add a previously excluded category of employees to an existing unit, as requested in this case, the petitioned-for unit must also independently constitute an appropriate unit." Id. at 2. The RD added that "[t]o hold otherwise would automatically preclude intervention by another labor organization, since the unit would be inappropriate for exclusive recognition independent of the existing unit" and, thus, "inappropriately deny employees the right to choose their representative . . . ." Id.
With respect to the unit in this case, the RD, citing decisions of the National Labor Relations Board (NLRB), found that "a bargaining unit consisting of a single employee is not appropriate for exclusive recognition." Id. The RD concluded that "[t]herefore, the petitioned-for unit in this case does not constitute an appropriate unit and the petition must be dismissed." Id.
IV. Application for Review
Council 236 states that it disagrees with the RD's decision "that the employee unit containing only one employee would not be appropriate to be included into [the consolidated] [u]nit." Application at 2. Council 236 asserts that: (1) the RD's decision violates the statutory rights of the Sparks equipment specialist because he was a member of the consolidated unit and the change in his duties should not have been grounds to remove him from the unit; and (2) the RD's finding that the petitioned-for unit must independently constitute an appropriate unit is wrong because the Reno field office, which moved to Sparks, had previously been certified as appropriate, and the fact that a unit consists of a single employee does not preclude intervention by another labor organization. Council 236 requests the Authority to "reverse the [RD's] decision and order him to include Sparks, Nevada, back into" the consolidated unit. Id. at 3.
V. Analysis and Conclusions
We conclude, in agreement with the RD, that the petition in this case must be dismissed. We agree that an election in the unit sought by Council 236 is not warranted in the circumstances of this case, for the following reasons.
The ARD, in Case No. SF-AC-30027, denied Council 236's request to include the Sparks equipment specialist in the consolidated unit, and clarified the consolidated unit by deleting from it the Reno motor pool for which Council 236 was the exclusive representative. The result of that decision was that the employee at Sparks (the equipment specialist) was not a part of any established appropriate bargaining unit. Council 236 did not challenge the ARD's decision.
As the RD properly noted in the instant case, if a unit sought constitutes a residual unit, the unit need not constitute a separate appropriate unit under the standards set forth in section 7112(a) of the Statute. A residual unit is a unit of all eligible unrepresented employees of the type covered by the petition. See Federal Trade Commission, 35 FLRA 576, 582-83 (1990). The record shows that, besides the Sparks employee, there are equipment specialists in other fleet management offices within GSA Region 9 who are unrepresented. Therefore, we find that a unit of unrepresented equipment specialists at Sparks alone is not appropriate as a residual unit.
Accordingly, we agree with the RD that, in the circumstances of this case, in order to be included in the consolidated unit, the unit sought must be found to constitute a separate appropriate unit. The RD, relying on NLRB precedent, found that the unit was not appropriate because a bargaining unit consisting of a single employee is not appropriate for exclusive recognition. We grant review on the issue of whether a bargaining unit consisting of a single employee is appropriate for exclusive recognition because there is an absence of Authority precedent on this issue.
We find that the principle of collective bargaining presupposes that there is more than one person on whose behalf bargaining takes place. The Statute creates the duty of an agency to bargain collectively with the labor organization chosen by its employees as their exclusive representative in an appropriate unit. See 5 U.S.C. §§ 7101, 7102, 7103(a)(12), 7103(a)(16), 7111, and 7112(a)(1). We note that references to collective bargaining and bargaining units in the Statute and the Authority's Rules and Regulations are to "employees." Section 2421.14 of the Authority's Rules and Regulations, for example, defines the term "appropriate unit" as "that grouping of employees found to be appropriate for purposes of exclusive recognition under 5 U.S.C. [§] 7111 . . . and consistent with the provisions of 5 U.S.C. [§] 7112." See also Report on a Ruling of the Assistant Secretary No. 44, 2 A/SLMR 637 (1972), in which the Assistant Secretary noted that all references to bargaining units in Executive Order 11491 and its implementing regulations referred to "employees" and found, therefore, that "units of more than one employee were contemplated by the Order and consequently that a single employee unit is not appropriate for purposes of collective bargaining." Accordingly, in agreement with the RD, we find that a bargaining unit consisting of a single employee is not appropriate for exclusive recognition.(*)
We find no merit in the remainder of Council 236's assertions. The assertions that the Sparks equipment specialist should not have been removed from the consolidated unit, and that the Sparks field office must be found appropriate because the Reno field office had been appropriate, were rejected by the ARD in her decision in Case No. SF-AC-30027. That decision was not challenged by Council 236 and is binding on the parties in this proceeding. See section 2422.17(e) and (f) of the Authority's Rules and Regulations.
The application for review is granted. We sustain the RD's findings that the unit sought by the petition is not appropriate and that an election is not warranted in this case. The petition is dismissed.
(If blank, the decision does not have footnotes.)
*/ We note that this finding does not preclude the employee at Sparks from being represented as a part of an appropriate bargaining unit.