52:1509(140)RP - - FMCS and FMCS Association of Federal Mediators - - 1997 FLRAdec RP - - v52 p1509



[ v52 p1509 ]
52:1509(140)RP
The decision of the Authority follows:


52 FLRA No. 140

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL MEDIATION AND CONCILIATION SERVICE

(Agency)

and

FMCS ASSOCIATION OF FEDERAL MEDIATORS

(Labor Organization/Petitioner)

WA-RP-70013

_____

ORDER DENYING APPLICATION FOR REVIEW

May 20, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This case is before the Authority on an application for review filed by the FMCS Association of Federal Mediators (Association) under section 2422.31(c) of the Authority's Regulations. The Association seeks review of the Regional Director's (RD) Decision and Order dismissing the petition in this case. The Agency, the Federal Mediation and Conciliation Service (FMCS), filed an opposition to the application for review.

For the reasons that follow, we deny the application for review.

II. Background and RD's Decision

The Association filed a petition seeking an election in a nationwide unit of "[a]ll field mediators employed by the Federal Mediation and Conciliation Service." RD's Decision at 1. Thereafter, the RD issued an order to show cause why the petition should not be dismissed based, inter alia, on the Authority's decision in Federal Mediation and Conciliation Service, Region 7, San Francisco, California, 3 FLRA 138 (1980) (FMCS, San Francisco).(1) In that case, the Authority found that mediators employed by the FMCS are engaged in the administration of the Federal Service Labor-Management Relations Statute (Statute) within the meaning of section 7112(b)(4), and, as a result, may not constitute an appropriate unit.(2)

In its response to the motion to show cause, the Association set forth two primary arguments. First, the Association argued that in FMCS, San Francisco the Authority erred in concluding that FMCS mediators administer provisions of the Statute. The Association asserted, in this regard, that mediators have no regulatory or enforcement responsibility but are limited to providing voluntary, non-binding assistance in the resolution of negotiation impasses. In addition, the Association maintained that the Authority no longer follows the analysis of section 7112(b)(4) applied in that case. According to the Association, the Authority's decisions in United States Department of Labor, Pension and Welfare Benefits Administration, 30 FLRA 1229 (1988) and United States Department of Labor, 23 FLRA 464 (1986) indicate that section 7112(b)(4) of the Statute should be read in conjunction with section 7112(c).(3) The Association maintained that if these sections are applied together, the petition in this case would be permitted "to go forward." RD's Decision at 3.

The RD rejected the Association's contentions and, therefore, dismissed the petition. In reaching this result, the RD applied FMCS, San Francisco to conclude that a unit of FMCS mediators would not be appropriate under section 7112(b)(4) of the Statute because FMCS mediators implement and carry out section 7119(a) of the Statute by providing traditional mediation and conciliation as well as technical assistance services.(4) The RD stated that the voluntary nature of the assistance provided by the mediators existed at the time that FMCS, San Francisco was decided, as did other aspects of their work described by the Association. The RD determined that, in these circumstances, "the [Association's] disagreement with the Authority's interpretation of the term 'administering' provides no basis for disregarding case precedent." Id. at 4.

The RD further concluded that the analysis advanced by the Association--that section 7112(c) of the Statute should be applied to this case in conjunction with section 7112(b)(4)--is without merit. The RD reasoned that if section 7112(c) were read as modifying section 7112(b)(4), employees engaged in the administration of the Statute could be included in an appropriate unit as long as the conditions of section 7112(c) are met. Finding that such an interpretation would serve to nullify section 7112(b)(4) of the Statute, the RD rejected the Association's argument.

III. Positions of the Parties

A. Application for Review

The Association filed an application for review of the RD's decision under section 2422.31(c) of the Authority's Regulations.(5) Specifically, the Association asserts that review is warranted under section 2422.31(c)(2) on the ground that established law or policy warrants reconsideration. The Association further asserts that review is warranted under section 2422.31(c)(3) on the grounds that there is a genuine issue over whether the RD has: failed to apply established law; committed a prejudicial procedural error; and committed a clear and prejudicial error concerning a substantial factual matter.

In support of its assertions, the Association maintains that since its decision in FMCS, San Francisco, the Authority has developed a "considerable body of law construing and applying section 7112(b)(4)" of the Statute. Application at 6. According to the Association, the most recent Authority decision to apply section 7112(b)(4)--U.S. Department of Housing and Urban Development, Washington, D.C., 35 FLRA 1249 (1990) (HUD)--"shows significant developments in the Authority's analysis since the issuance of FMCS, San Francisco." Id. at 7.

The Association argues, in this regard, that the section 7112(b)(4) analysis applied in HUD requires a full and detailed consideration of the employees' actual duties and that this process was foreclosed in this case by the use of a "peremptory" order to show cause. Id. at 11. In particular, the Association argues that HUD requires an analysis of the duties of FMCS mediators to determine whether such duties produce the kind of conflict of interest that Congress sought to avoid in enacting section 7112(b)(4). The Association asserts that HUD "compels abandonment of any mechanical, shorthand application of section 7112(b)(4), particularly one that produces an incongruous result." Id.

The Association also argues that "it cannot be said that mediators administer the Statute according to any reasonable understanding of the term." Id. The Association explains that under section 7119(a) of the Statute, the FMCS is authorized to determine under what circumstances and in what manner it will provide mediation services in the Federal sector and to prescribe rules and regulations in furtherance of that determination. The Association points out that those regulations contain no indication that FMCS mediators enforce or administer substantive provisions of the Statute.

The Association also asserts that review is warranted because the RD's failure to hold a hearing constituted a prejudicial procedural error that further resulted in error concerning a substantial factual matter. In particular, the Association maintains that the RD should have held a hearing and made specific findings in support of his conclusion that section 7112(b)(4) excludes mediators from an appropriate unit. In the Association's view, the RD's disposition of this matter by an order to show cause was procedurally improper and clearly prejudicial because it placed the burden on the Association to present all supporting evidence within a very short time frame. The Association argues that had a hearing been conducted, it would have submitted additional evidence supporting its position that FMCS mediators are not engaged in administering the provisions of the Statute.

B. Opposition

The FMCS asserts that the Association's petition was properly dismissed by means of an order to show cause. In support of its position, the FMCS submits that FMCS, San Francisco was correctly decided in 1980 and that nothing has transpired since that time that requires a hearing or supports a change in the Authority's interpretation of the Statute.

The FMCS also contends that the Authority properly determined in FMCS, San Francisco that the "FMCS is an integral part of the federal labor relations statutory scheme." Opposition at 6. According to the FMCS, the enactment of Executive Order 12871 in 1993 caused this role to expand significantly to include increased negotiation assistance, grievance mediation, arbitration and partnership training. For the reasons enunciated by the Authority in FMCS, San Francisco, as well as the increased role now played by its mediators in the Federal sector, the FMCS asserts that the Association's application for review should be dismissed.

IV. Analysis and Conclusions

For the reasons that follow, we conclude that the Association has not established that compelling reasons exist for granting its application for review under section 2422.31(c) of the Authority's Regulations.

A. There Is No Genuine Issue as to Whether the RD Failed To Apply Established Precedent

In FMCS, San Francisco, the Authority construed the term "administer" in section 7112(b)(4). In so doing, the Authority set forth the duties of FMCS mediators required by section 7119(a) of the Statute. The Authority noted, in this regard, that the mission of the FMCS is to provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The Authority further noted that the FMCS is authorized by section 7134 of the Statute to prescribe appropriate regulations to carry out the provisions of section 7119(a).

The Authority found that while the nature of FMCS involvement in a case varies in accordance with the circumstances, it "generally involves traditional mediation and conciliation, sometimes including the making of recommendations on settlement terms." Id. at 139. The Authority also found that the FMCS provides its Federal sector clients with technical assistance such as instruction in negotiation or communication techniques. Based on the foregoing, the Authority concluded that FMCS mediators "implement and carry out section 7119(a) of the Statute by providing mediation and conciliation and technical assistance services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses." Id. at 140. The Authority further concluded that by providing such services, FMCS mediators are engaged in "administering" the provisions of the Statute within the meaning of section 7112(b)(4).

In United States Department of Labor, Office of the Solicitor, Region III, 8 FLRA 286 (1982) (DOL, Solicitor), the Authority applied FMCS, San Francisco. The Authority in DOL, Solicitor concluded that employees who enforce sections 7120(a)-(e) of the Statute are engaged in administering its provisions pursuant to section 7112(b)(4).(6)

Contrary to the Association's contention, the Authority's decision in HUD did not depart from FMCS, San Francisco or DOL, Solicitor. Rather, the Authority applied that precedent to determine, inter alia, whether section 7112(b)(4) precluded a particular employee from being included in a previously established bargaining unit. In so doing, the Authority examined that employee's duties and responsibilities and concluded that the record did not support the agency's allegation that the employee was engaged in "administering" the Statute, within the meaning of section 7112(b)(4). The Authority, accordingly, found that section 7112(b)(4) did not prohibit the employee's inclusion in the unit.

In this case, the RD examined the mediators' duties and responsibilities as they had been considered by the Authority in deciding FMCS, San Francisco and concluded that FMCS mediators "administer" the Statute within the meaning of section 7112(b)(4). A review of the Association's response to the order to show cause establishes that it failed to offer evidence to show that FMCS mediators now perform new or different responsibilities from those considered by the Authority in FMCS, San Francisco. Accordingly, we conclude that the RD's decision was consistent with, and the RD did not err by relying on, that decision. We further conclude that the RD's application of HUD would not have compelled a different result. Rather, as explained above, HUD simply applied the standards enunciated in FMCS, San Francisco to the facts of that case. As in HUD, the RD in this case applied FMCS, San Francisco to the facts of the case before him. In these circumstances, we find that the RD's decision does not warrant review under section 2422.31(c)(3)(I) of the Authority's Regulations.

B. Reconsideration of Established Law or Policy Is Not Warranted

In its application for review, the Association maintains that in FMCS, San Francisco, the Authority wrongly construed the term "administer" within the meaning of section 7112(b)(4). According to the Association, the term "administer" should not be construed so broadly as to mean implementing and carrying out the provisions of the Statute, as the Authority has concluded. Rather, the Association contends that this term should be narrowly interpreted to mean only the actual enforcement of substantive provisions of the Statute.

The Association has failed to provide any support for its assertion. In this connection, the Association has cited neither case precedent nor legislative history to support its interpretation of this term. It has also failed to offer any explanation as to why Congressional intent should be read in favor of a construction of the term "administer" that encompasses only enforcement.

In its decision in FMCS, San Francisco, the Authority relied on the role of FMCS mediators in Federal sector labor-management relations under the Statute, not only in traditional mediation and conciliation activities, but also in the areas of grievance mediation, settlement recommendations and technical assistance. The Association does not claim, and it has not otherwise been demonstrated, that this role has diminished since FMCS, San Francisco was issued. If anything, efforts to resolve through mediation matters under the Statute relating to grievances, unfair labor practice claims and bargaining disputes would appear to enhance, rather than diminish, the need for the services of the FMCS.

Consequently, we conclude that the Association has not established grounds warranting review of the RD's decision under section 2422.31(c)(2) of the Statute.

C. The RD's Resolution of the Petition, Based On an Order to Show Cause, Did Not Constitute a Prejudicial Procedural or Substantial Factual Error

Under section 2422.21(g) of the Authority's Regulations, the determination of whether to hold an evidentiary hearing is within the RD's discretion. Federal Deposit Insurance Corporation, Washington, D.C., 38 FLRA 952, 963-64 (1990). A hearing is not required in all cases in which questions of fact are raised. Rather, the RD may determine, on the basis of the investigation or by stipulation of the parties, that "there are sufficient facts not in dispute to form the basis for a decision or that, even where some facts are in dispute, the record contains sufficient evidence on which to base a decision." U.S. Department of Agriculture, Forest Service, Apache-Sitgreaves National Forest, Springerville, Arizona, 47 FLRA 945, 952 (1993). See also Federal Deposit Insurance Corporation, 40 FLRA 775 (1991), enf'd sub nom. FLRA v. Federal Deposit Insurance Corporation, No. 91-1207 (D.C. Cir. Sept. 1, 1992).

As previously discussed, Authority precedent construing and applying section 7112(b)(4) has not changed sinc