52:0852(83)RO - - Walter Reed Army Medical Center and NAGE - - 1997 FLRAdec RP - - v52 p852



[ v52 p852 ]
52:0852(83)RO
The decision of the Authority follows:


52 FLRA No. 83

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

WALTER REED ARMY MEDICAL CENTER

(Activity)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO

(Petitioner/Labor Organization)

WA-RO-60029

_____

ORDER DENYING APPLICATION FOR REVIEW

January 10, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This case is before the Authority on an application for review filed by the Petitioner under section 2422.17(a) of the Authority's Regulations.(1) The Petitioner seeks review of the Regional Director's (RD's) Decision and Order dismissing the petition in this case. The Activity filed an opposition to the application for review.

For the following reasons, we deny the application for review.

II. Background and RD's Decision

The Petitioner seeks an election among 50 nonprofessional employees in the Activity's Department of Radiology (Radiology).(2) The unit sought consists of General Schedule (GS) employees in 17 job classifications. These employees are currently unrepresented. The RD found that Radiology is one of 17 Activity departments responsible for clinical care of patients. He stated that each of the clinical care departments, including Radiology, is supervised by a Department Chief who reports directly to the Commander of the Activity.

The RD found that "there are currently four existing bargaining units" at the Activity. RD's Decision at 2. According to the RD, the American Federation of Government Employees, Local 2, AFL-CIO (AFGE Local 2) and the Activity are parties to a collective bargaining agreement covering approximately 500 employees and "[t]his bargaining unit is made up of nonprofessional employees in approximately nine departments or directorates which were certified or recognized as separate units from 1966-1977." Id. The RD also found that the Fraternal Order of Police, the International Association of Fire Fighters, Local Fighters F-151, and the Journeymen Pipefitters and Apprentices, Local 602 represent employees in 3 other units.

The RD found that the Activity has approximately 2,500 civilian employees and that approximately 1,000 of the employees working in the Activity's 17 clinical care departments are unrepresented, including the 50 nonprofessional GS employees in Radiology. He also found that: (1) labor relations and all personnel functions are centralized in the Activity's Civilian Personnel Office; (2) the employees in Radiology are located in the same facilities and share related functions with unrepresented nonprofessional employees in other clinical care departments; (3) Radiology employees "regularly are involved with employees from other clinical care departments in training, conferences and direct patient care[;]" (id. at 3); (4) all employees in the clinical care departments "perform various tests, analyses and treatment for patients which requires training and utilization of specialized equipment" and "requires a similar degree of skills and knowledge[;]" (id.); and (5) that there have been transfers and interchange of employees between clinical care departments in recent years.

The RD concluded, based on the appropriate unit criteria as discussed by the Authority in U.S. Department of Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Illinois, 48 FLRA 620, 635 (1993) (Office of the Chief Immigration Judge, Chicago), that a unit limited to nonprofessional employees in Radiology is not an appropriate unit under the Statute. The RD found that the Radiology employees do not share a community of interest that is separate and apart from other unrepresented nonprofessional employees within the Activity. He found, relying on the findings set forth above, that the Radiology employees are not a self-contained physically distinct group with its own administrative and managerial authority, but rather that they share an integrated mission with the unrepresented employees in the other 16 clinical care departments within the Activity.

The RD also found that a unit comprised of the employees of only 1 of the 17 clinical care departments would fragment and leave unrepresented other nonprofessional employees at the Activity having similar working conditions. The RD rejected the Petitioner's assertion that the proposed unit is appropriate because the Activity has a history of bargaining involving several previously certified and recognized departmental units. The RD found that the number of prior bargaining units "is not dispositive of the section 7112(a)(1) analysis." RD's Decision at 5. In these circumstances, the RD found that the establishment of the claimed unit could not reasonably be expected to promote effective dealings and efficiency of the Activity's operations. Therefore, the RD dismissed the petition.

III. Positions of the Parties

A. Application for Review

The Petitioner filed an application for review of the RD's Decision under section 2422.17(c) of the Authority's Regulations on the basis that: (1) a substantial question of law or policy is raised because of the absence of or departure from Authority precedent; (2) there are extraordinary circumstances warranting reconsideration of an Authority policy; and (3) the RD's Decision on a substantial factual issue is clearly erroneous and such error is prejudicial.

The Petitioner argues that there are 17 certified bargaining units at the Activity, not 4 as stated by the RD, and that this fact establishes a historical pattern of department-wide and branch-wide recognitions. The Petitioner asserts that a finding that the petitioned-for unit is not appropriate, given the recognition of the existing department and branch-wide units at the Activity, is inequitable. The Petitioner argues that the RD ignores this bargaining history. The Petitioner contends that this establishes extraordinary circumstances warranting review of Authority policy and caselaw concerning representation petitions.

The Petitioner also argues that the majority of Radiology employees support the petition and that this fact, coupled with the existence of numerous certifications indicating representation of similarly situated employees, "evinces extraordinary circumstances warranting review of the Authority policy and caselaw concerning representation petitions." Application at 4. The Petitioner argues that in resolving the petition, the Authority should consider "the desires of employees." Id.

The Petitioner further argues that the RD made two erroneous findings of fact that are prejudicial. First, it argues that the RD misstated the number of existing bargaining units. The Petitioner argues that the RD's finding that there are 4 units, rather than 17, undermines the significance of the historical patterns of recognition at the Activity. Secondly, the Petitioner argues that it was prejudiced because of the RD's failure to address the issue of the autonomy of the Chief of the Department of Radiology in scheduling his employees on flextime and flexitour schedules. The Petitioner argues that this schedule may depart from schedules in various departments throughout the Agency. The Petitioner claims that the failure to discuss this issue resulted in an incorrect determination that employees in Radiology do not have a community of interest separate and distinct from other employees of the Activity.

B. Opposition (3)

The Activity argues that the RD did not commit prejudicial error in failing to analyze the Radiology Department Chief's authority to schedule employees on flextime. In this regard, the Activity asserts that all Department Chiefs have authority to use flextime in scheduling employees' work.

The Activity also disagrees that prejudicial error occurred based on the RD's misstatement concerning the number of bargaining units. The Activity argues that the RD was factually correct because his "wording makes clear that he very well understands that while there are CURRENTLY only four bargaining units, AFGE's present unit originated from various organizational units separately certified anywhere from 20 to 30 years ago." Activity's Opposition at 2.

IV. Analysis and Conclusions

We conclude that the Petitioner has not established that compelling reasons exist for granting its application for review under section 2422.17(c) of the Authority's Regulations.

A. The RD's Decision Does Not Raise a Substantial Question of Law or Policy Because of the Absence of, or Departure From, Authority Precedent

The RD rejected the Petitioner's assertion that the petitioned-for unit is appropriate because of a historical pattern of previously recognized department-wide and branch-wide units. Although the RD made this finding without citing to any Authority precedent, we conclude that his finding is consistent with precedent. In this regard, the Authority has specifically stated that "[t]he number of bargaining units is not dispositive of the section 7112(a)(1) analysis" under the Statute. American Federation of Government Employees, Local 2004, 47 FLRA 969, 973 (1993).(4) Furthermore, in deciding a case with similar factual circumstances, the Authority found that a separate petitioned-for unit consisting of employees in one institute among the various bureaus, institutes and divisions of the National Institutes of Health (NIH) was not appropriate even though the record revealed that there were currently a large number of bargaining units at NIH. National Institute of Child Health and Human Development, National Institutes of Health, 9 FLRA 526, 527-28 (1982). Specifically, the Authority concluded that the employees in the petitioned-for unit did not meet the criteria set forth in section 7112(a)(1). Finally, despite the fact that there are 17 bargaining units at the Activity, 12 of these units are covered by one collective bargaining agreement and 2 other units also bargain one contract. Thus, due to the pattern of bargaining, there is, in fact, far less fragmentation than might otherwise be indicated by the number of units.

Consequently, we conclude that the RD's Decision does not raise a substantial question of law or policy because of the absence of, or departure from, Authority precedent.

B. The Petitioner Has Not Established That the Assertion That the Majority of Radiology Employees Support the Petition, Coupled with the Existence of Numerous Certifications Indicating Representation of Similarly Situated Employees, Evinces Extraordinary Circumstances Warranting Reconsideration of Authority Policy and Caselaw

There is no showing that the Authority has departed from policy with regard to the weight to be given to the extent of a showing of interest or to the number of previously existing certifications in determining the appropriateness of bargaining units under section 7112(a)(1) of the Statute. Rather, as discussed infra, the Authority makes appropriate unit determinations by applying the criteria in section 7112(a)(1) to the record in the case before it. Those criteria do not include the extent to which a petition is supported by a showing of interest.

Consequently, we conclude that the Petitioner has not established grounds warranting review of the RD's Decision under section 2422.17(c)(2) of the Authority's Regulations.

C. The Petitioner Has Not Established That the RD Made Prejudicial Factual Errors

As we noted above, the number of units currently existing at an activity is not dispositive as to whether a petitioned-for unit of unrepresented employees at that activity constitutes an appropriate unit under section 7112(a)(1) of the Statute. Consequently, even acknowledging that the RD erred in stating the number of currently existing units at the Activity in this case, this misstatement does not establish that the Petitioner was prejudiced in this regard, especially in view of the pattern of consolidated bargaining discussed above.(5)

In addition, the Authority has not specified individual factors or the number of factors necessary to establish a community of interest under section 7112(a)(1). Rather, in applying the criteria in section 7112(a)(1), the Authority examines the totality of the circumstances in each case in making appropriate unit determinations under that section. See Office of the Chief Immigration Judge, Chicago, 48 FLRA at 635. The failure to consider one of many possible individual factors does not necessarily constitute factual error warranting the granting of an application for review. In this case, even assuming that the RD's failure to consider the authority of the Chief of Radiology in establishing flexible schedules constituted a factual error, the Petitioner has provided no basis for concluding that it was prejudiced by the RD's failure to consider that one factor among all those he considered.

The record supports the RD's findings that the employees in the claimed unit do not share a community of interest that is separate and apart from other unrepresented employees in the Activity's clinical care departments. In particular, the record reveals that all these employees share a common mission, common working conditions, similar job classifications, pay, benefits and personnel policies and practices and facilities and services.

The record also supports the RD's finding that the claimed unit would not promote effective dealings and efficiency of the Activity's operations. In this regard, we note that the unit is not a distinct group with separate administrative and managerial authority and, thus, the establishment of the claimed unit would leave unrepresented other nonprofessional employees having similar working conditions and would result in fragmented bargaining units.

The RD's findings and his conclusion that the proposed unit is not appropriate under section 7112(a)(1) of the Statute are supported by the record in this case. The Petitioner's application for review expresses mere disagreement with the RD's application of Authority precedent and provides no basis for granting review of the RD's Decision. See Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 46 FLRA 502, 510 (1992).

V. Order

The application for review of the Regional Director's Decision and Order is denied.




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

1. All references in this decision to the Authority's Regulations pertain to the Regulations in effect prior to March 15, 1996. The revised representation Regulations that became effective on that date apply only to petitions filed on or after March 15, 1996, and, therefore, do not apply in this case. See Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 938 n.6 (1996).

2. At the hearing, the Petitioner clarified that, in petitioning for a unit of nonsupervisory employees, it sought to represent only the nonsupervisory, nonprofessional employees in Radiology.

3. The Activity includes in its opposition several comments characterizing the Petitioner's application in an inappropriately disrespectful manner. Representation cases involve nonadversarial investigatory proceedings, in which all parties are afforded equal opportunity to present evidence and arguments. The extremely adversarial tone of the Activity's opposition, and the gratuitous remarks contained therein, compel us to note that establishing this tone in submissions is not helpful to the Authority in deciding the issues in this representation case; it also does not support constructive labor-management relationships.

4. Although the number of bargaining units is not dispositive, it may be relevant, depending on the circumstances in a case, in applying the criteria stated in section 7112(a)(1) in determining the appropriateness of a petitioned-for unit. In this case, for the reasons discussed herein, the Petitioner has made no showing that the RD's application of the criteria was in error.

5. Official notice was taken, on the record, of the Office of Personnel Management (OPM) Publication entitled Union Recognition in the Federal Government, December 1992 (Union Recognition). Union Recognition lists 17 bargaining units at the Activity, 12 of which are represented by AFGE Local 2. The parties do not dispute the fact that there are 17 bargaining units at the Activity, as listed in Union Recognition. However, it would have been better practice to establish the recognized and certified bargaining units by including in the record copies of the U.S. Department of Labor's Labor-Management Services Administration and FLRA certifications from the Re