[ v49 p100 ]
49:0100(15)CU
The decision of the Authority follows:


49 FLRA No. 15

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency/Petitioner)

and

WASHINGTON PLATE PRINTERS UNION

LOCAL 2, IPPDEU, AFL-CIO

(Labor Organization)

WA-CU-30008

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency/Petitioner)

and

BANK NOTE ENGRAVERS GUILD OF WASHINGTON, D.C.

INTERNATIONAL PLATE PRINTERS, DIE

STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA

LOCAL 32, AFL-CIO

(Labor Organization)

WA-CU-30009

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency/Petitioner)

and

ELECTROLYTIC PLATE MAKERS OF WASHINGTON, D.C.

INTERNATIONAL PLATE PRINTERS

DIE STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA

LOCAL 24, AFL-CIO

(Labor Organization)

WA-CU-30010

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency/Petitioner)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL 121, AFL-CIO

(Labor Organization)

WA-CU-30011

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency/Petitioner)

and

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS

COLUMBIA LODGE 174, AFL-CIO

(Labor Organization)

WA-CU-30012

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency/Petitioner)

and

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS

FRANKLIN LODGE NO. 2135, AFL-CIO

(Labor Organization)

WA-CU-30013

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 29, AFL-CIO

(Labor Organization)

WA-CU-30014

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency/Petitioner)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization)

WA-CU-30015

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency/Petitioner)

and

GRAPHIC COMMUNICATIONS INTERNATIONAL UNION

LOCAL 1-C, AFL-CIO

(Labor Organization)

WA-CU-30016

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency/Petitioner)

and

GRAPHIC COMMUNICATIONS INTERNATIONAL UNION

LOCAL 4B, AFL-CIO

(Labor Organization)

WA-CU-30017

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Labor Organization/Petitioner)

and

COMBINED LAW ENFORCEMENT ASSOCIATION OF TEXAS

(Labor Organization/Intervenor)

DA-RO-30001

_____

DECISION AND ORDER ON APPLICATION FOR REVIEW

February 18, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated case is before the Authority on an application for review filed by the Combined Law Enforcement Association of Texas (CLEAT), the Intervenor in Case No. DA-RO-30001, under section 2422.17(a) of the Authority's Rules and Regulations. CLEAT seeks review of the Regional Director's (RD's) Decision and Order in the subject consolidated case as it relates to the special police employed at the Agency's Western Currency Facility (WCF). The application for review challenges only the RD's decisions to dismiss the petitions in Case Nos. WA-CU-30014 and DA-RO-30001. No opposition to CLEAT's application for review was filed.

For the following reasons, we grant the Intervenor's application for review on the ground that a substantial question of law and policy is raised due to the absence of Authority precedent on the issue of whether in the circumstances of this case unusual circumstances exist that would justify severance of employees from an existing appropriate bargaining unit. We will clarify the unit of special police exclusively represented by the American Federation of Government Employees, Local 29, AFL-CIO, (AFGE Local 29) to exclude the special police at the WCF. In addition, we will remand Case No. DA-RO-30001 to the Dallas Regional Director for further action pursuant to our decision.

II. Background and RD's Decision

The Agency is engaged in the operation of designing and producing United States currency, postage stamps, and Federal securities. It has operated out of its Washington, D.C. main and annex buildings since 1914 and 1936, respectively.

In 1987, the Agency decided to build a satellite production facility, the WCF, in Fort Worth, Texas. When the WCF became operational in January 1991, it employed approximately 175 employees. Of those employees, about 75 were transferred from the Agency's Washington, D.C. facilities (DCF). At the time of their transfer, these employees were represented in separate bargaining units at DCF by ten different labor organizations. Prior to assuming the operations of the WCF, the parties agreed to extend to the employees at WCF the terms of the current collective bargaining agreements with each of the ten labor organizations so that they would cover the appropriate unit employees who transferred to WCF. At the time of the hearing, March 9, 10 and 11, 1993, there were approximately 400 employees employed at WCF and the record indicated that the WCF work force was expected to exceed 500 employees by Fiscal Year 1996.

In its petitions for clarification of unit, the Agency contended that the existing units at DCF should be clarified to specifically exclude the WCF employees. The Agency asserted that, upon completion of the start-up phase at the WCF, it had effected certain changes in the operating and administrative policies of the WCF that resulted in varying wages, employment benefits, and working conditions. The Agency contended that, as a result, the WCF employees did not share a community of interest with the employees in the existing Washington, D.C. units and that the continued inclusion of the WCF employees with DCF employees in those units would not promote effective dealings and efficiency of Agency operations. As relevant to the application for review, in Case No. WA-CU-30014 the Agency sought to exclude the approximately 50 special police at WCF from the unit represented by the AFGE Local 29. The only member of the DCF unit who transferred to WCF subsequently was reassigned to another unit. Consequently, at the time of the hearing all of the special police at WCF had been hired locally. AFGE Local 29 did not oppose the Agency's clarification of unit petition in Case No. WA-CU-30014.

In addition, prior to the filing of the Agency's petitions, the American Federation of Government Employees, AFL-CIO (AFGE) filed a petition in Case No. DA-RO-30001 that sought an election among the special police at WCF. AFGE Local 29 was not a party to Case No. DA-RO-30001. CLEAT was granted intervenor status in that case.

With regard to the unit clarification petitions, the RD found that there were certain factors present that would support a finding that the WCF employees should not be included in the existing units. However, the RD concluded that, in the circumstances of this case, a clarification of unit petition is not appropriate for determining the exclusion of employees who have been included in existing bargaining units, in the absence of evidence of substantial changes in their job duties or status. Accordingly, the RD dismissed the Agency's clarification of unit petitions.(1)

The RD then found in Case No. DA-RO-30001 that AFGE's attempt to represent the WCF special police in a separate unit raised the issue of whether the WCF special police should be severed from the existing unit of special police represented by AFGE Local 29. The RD found that the record revealed no unusual circumstances that would warrant severing the WCF special police from the existing unit of special police at DCF. In this regard, the RD found that there was no evidence that AFGE Local 29 had failed to adequately represent the WCF special police. The RD cited Library of Congress, 16 FLRA 429 (1984) and Department of the Navy, Naval Air Station, Moffett Field, California, 8 FLRA 10 (1982) (Naval Air Station) for the proposition that unusual circumstances are needed to justify the severance of employees from an existing appropriate unit. Accordingly, the RD dismissed the petition in Case No. DA-RO-30001.

III. Application for Review

CLEAT contends that a substantial question of law or policy is raised by the RD's decision because of either the absence of or departure from Authority precedent. CLEAT also maintains that the RD's decision has resulted in prejudicial error to all four parties that have a substantial interest in this proceeding.

First, CLEAT argues that although the RD noted in his decision that all the parties with a substantial interest in Case Nos. WA-CU-30014 and DA-RO-30001 wanted to exclude the WCF special police from the DCF bargaining unit, he "completely ignored" and failed to give any weight to those wishes. Application at 7. In this regard, CLEAT contends that AFGE Local 29 "specifically agreed to separating the employees into two separate units . . . ." Id. CLEAT maintains that the RD's decision is "clearly incompatible with labor law principles which encourage the mutual settlement of labor-management issues without the intervention of outside parties . . . ." Id. (emphasis in original).(2)

Next, CLEAT asserts that the RD erred in consolidating the special police from the two Agency facilities into one bargaining unit. CLEAT contends that the Authority precedent cited by the RD was inapplicable and that there is Authority precedent for separating police units based on a community of interest. CLEAT argues that this case is factually distinguishable from the situations in Library of Congress and Naval Air Station, in that: (1) there was a contested request by a rival labor organization to sever a group of employees in the cited cases; (2) the petitions in the cited cases sought to separate different classes of employees, while in this case the employees are all special police; and (3) the employees in this case are from different facilities. Application at 8-9.

CLEAT further contends that factors given strong consideration by the Authority for evaluating a community of interest in appropriate unit determinations are present in the circumstances of this case. CLEAT notes the following in this regard: (1) the historical patterns of recognition within the Department of Treasury of separate police units at single-location facilities; (2) the geographic separation of the employees involved with no interchange among the employees in the two locations; and (3) the distinct chains of supervision of the two groups of employees.

Finally, CLEAT asserts that the RD's decision is erroneous because it disregarded AFGE Local 29's disclaimer of interest in the special police at WCF. CLEAT maintains that the RD erroneously consolidated the special police at WCF and DCF into one bargaining unit which, in effect, awarded representation rights for the WCF special police to a labor organization that has disclaimed any interest in representing those employees. CLEAT argues that the RD's action is contrary to sections 7102 and 7112 of the Federal Service Labor-Management Relations Statute (the Statute). In this regard, CLEAT contends that, by his decision, the RD has failed to ensure that the collective bargaining rights of the special police officers at the WCF will be fully protected because those employees have been forced to accept a bargaining agent that has shown no interest in representing them.

IV. Analysis and Conclusions

We grant the Intervenor's application for review on the ground that a substantial question of law and policy is raised due to the absence of Authority precedent on the issue of whether a disclaimer of interest by an incumbent labor organization raises an unusual circumstance that would justify severance of employees from an existing appropriate bargaining unit.

Severance of employees from an existing appropriate unit may be justified under certain unusual circumstances. See Library of Congress, 16 FLRA at 431. One such circumstance involves the adequacy of representation afforded by the incumbent exclusive representative. The failure of an incumbent to fairly represent the employees sought would give rise to a question of representation concerning the petitioned-for unit and justify severance of those employees from an existing larger unit that continued to remain appropriate. U.S. Department of Veterans Affairs, Washington, D.C., 35 FLRA 172, 180 (1990). The Authority has also found an unusual circumstance justifying severance when the character and degree of a reorganization resulted in the loss of a community of interest between some employees in a unit and the remainder of the unit. Id.

This case presents a factual situation unlike the cited cases. In this case, the RD has found both that the existing unit remains appropriate and that there is no evidence that AFGE Local 29 has failed to adequately represent the WCF special police. Nonetheless, the record shows that AFGE Local 29 did not oppose the exclusion of the WCF special police from the existing unit and, further, expressly disclaimed interest in representing the employees in question. Moreover, AFGE Local 29's actions subsequent to its declaration are consistent with that disclaimer. In this regard, AFGE Local 29: (1) departed the hearing in this matter after stating its position; (2) failed to file a brief with the RD; and (3) failed to file an opposition to CLEAT's application for review. We also note the following circumstances that make this case unique: (1) the WCF is a newly created facility; (2) the Agency and AFGE Local 29 agreed to extend the terms of the current agreement to the WCF special police; (3) all of the WCF special police encompassed by the petition in Case No. DA-R0-30001 were hired locally; and (4) a valid petition has been filed to represent these employees in a separate unit. Taking into consideration all of the foregoing, in addition to the disclaimer by AFGE Local 29, we conclude that unusual circumstances exist that justify severance in this case.(3)

In reaching this conclusion, we also note particularly that all parties involved agreed that the WCF special police should not be represented in a unit with the DCF special police.(4) In these circumstances, we agree with CLEAT that the WCF special police should be afforded the opportunity to choose a representative that is willing and able to represent their interests fully in a separate unit.(5) Accordingly, we will order AFGE Local 29's unit clarified to exclude the special police at WCF.

A question now arises as to whether the petitioned-for unit in DA-RO-30001 is an appropriate unit for exclusive recognition. Authority precedent exists for finding appropriate a unit structured around a functional grouping of employees who possess characteristics and concerns limited to that group. See, for example, Department of the Navy, Naval Station, Norfolk, Virginia, 14 FLRA 702, 704 (1984) (the Authority found that a unit composed of firefighters was an appropriate unit, noting in this regard the employees' unique position descriptions, job responsibilities, special pay and retirement system, training, shift work, and work location). Moreover, the Statute itself explicitly recognizes that units established on a functional basis may be appropriate. See U.S. Department of the Air Force, Edwards Air Force Base, California, 35 FLRA 1311, 1314 (1990) (the Authority affirmed a regional director's decision finding that a group of employees constituted an appropriate unit based upon their unique job classification, specialized and distinct occupational field, their limited interaction with other employees, different work hours, and different retirement provisions and physical examination requirements).

A unit of special police at WCF appears to be a unit structured around a functional grouping. However, the record in this case contains insufficient evidence bearing on the factors relied upon in the cited cases. Thus, we conclude that we cannot determine whether a unit composed of special police at WCF is appropriate. Accordingly, we will remand this matter to the Dallas Regional Director for such a determination. Absent an agreement by the parties for a consent election pursuant to section 2422.7 of the Authority's Rules and Regulations, the Dallas Regional Director may order an election among the employees in the petitioned-for unit if he makes the necessary findings that it is an appropriate unit for exclusive recognition.

V. Order

We grant the application for review. The unit exclusively represented by the American Federation of Government Employees, Local 29, AFL-CIO, of special police at the Bureau of Engraving and Printing is clarified to exclude the special police at the Western Currency Facility of the Bureau of Engraving and Printing.

Case No. DA-RO-30001 is remanded to the Dallas Regional Director to make a determination as to whether the petitioned-for unit is an appropriate unit for exclusive recognition, absent an agreement by the parties for a consent election, and to take any other appropriate action consistent with this decision.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The RD found it unnecessary to decide whether the WCF employees would constitute a separate appropriate unit.

2. CLEAT contends that if Authority precedent allows the consolidation of units contrary to the express desires of the parties, then there are extraordinary circumstances warranting reconsideration of that policy.

3. We