Division of Military and Naval Affairs, New York National Guard, Latham, New York (Petitioner) and Association of Civilian Technicians (Labor Organization/Respondent) and Air National Guard, Selfridge ANG, Michigan (Intervenor/Petitioner) and Alaska National Guard, Anchorage, Alaska (Petitioner) and Association of Civilian Technicians, Alaska Chapter (Labor Organization/Respondent)

[ v56 p139 ]

56 FLRA No. 17

DIVISION OF MILITARY AND NAVAL AFFAIRS
NEW YORK NATIONAL GUARD
LATHAM, NEW YORK
(Petitioner)

and

ASSOCIATION OF CIVILIAN TECHNICIANS
(Labor Organization/Respondent)

and

AIR NATIONAL GUARD
SELFRIDGE ANG, MICHIGAN
(Intervenor/Petitioner)

BN-RP-70024

and

ALASKA NATIONAL GUARD
ANCHORAGE, ALASKA
(Petitioner)

and

ASSOCIATION OF CIVILIAN TECHNICIANS
ALASKA CHAPTER
(Labor Organization/Respondent)

SF-RP-70060

_____

DECISION AND ORDER ON REVIEW

March 14, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.

I.     Statement of the Case

      These cases are before the Authority on applications for review filed by the New York National Guard (NYNG) and Alaska National Guard (ANG), respectively, under section 2422.31 of the Authority's Regulations. In addition, in New York National Guard, Intervenor Air National Guard, Selfridge ANG Base (Selfridge ANG) filed an application for review. In both cases, the applications seek review of the Regional Director's (RD's) Decisions and Orders granting petitions to clarify two units of the Association of Civilian Technicians (the Union). The Union filed oppositions to the applications.

      For the reasons set forth below, we deny the applications.

II.     Preliminary Matter

      Before the RD, New York National Guard and Alaska National Guard were consolidated, and a hearing on the consolidated case was held. However, the Intervenor in New York National Guard, Selfridge ANG, was not notified or represented at the hearing. Accordingly, the cases were severed and Selfridge ANG was afforded an opportunity to participate in New York National Guard.

      New York National Guard and Alaska National Guard concern the same issue, and the parties' arguments and representatives (with the exception of Selfridge ANG) are the same in both cases. Selfridge ANG has now had the opportunity to participate in New York National Guard and has not presented any arguments different from those presented by the Activities in the two cases. Accordingly, we consolidate New York National Guard and Alaska National Guard for decision. See Association of Civilian Technicians, Texas Lone Star Chapter 100 and U.S. Department of Defense, National Guard Bureau, State of Texas, Adjutant General's Department and Association of Civilian Technicians, ATC, Wisconsin 26 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, State of Wisconsin, 55 FLRA No. 196 (2000).

III.     Factual Background

      National Guard technicians are excepted service, dual status employees who must become and remain members of the National Guard, maintaining the particular military grade specified for their civilian positions. 32 U.S.C. §§ 709(a),(b) (the Technicians Act). [n1]  In section 544 of the National Defense Authorization Act for Fiscal Year 1993, Congress amended 5 U.S.C. § 3329 to require the Department of Defense to offer Title 5 competitive service positions to certain technicians who were separated from their National Guard technician positions because they were unable to maintain a compatible military position. [ v56 p140 ]

      The petitions in New York National Guard and Alaska National Guard seek to amend and/or clarify certified units of National Guard technicians to include three employees offered positions pursuant to section 3329 (section 3329 employees). The three employees, two in New York and one in Alaska, are all former National Guard technicians who were appointed to Title 5 competitive service positions at the same classification and grade that they had occupied as technicians.

IV.     RD's Decision

      The RD identified the issue in both cases as whether the section 3329 employees should be excluded from the existing units. See New York Decision at 2; Alaska Decision at 2.

A.     Scope of the Certifications

      In both cases, the RD first addressed whether the section 3329 positions were properly included within the express terms of the Certifications of Representation of the New York National Guard unit (NYNG unit) and Alaska National Guard ANG unit (ANG unit). [n2]  In New York National Guard, the RD found that the two positions at issue "fall within the express terms of the [NYNG] unit certification, which applies to `all National Guard Technicians and employees.'" New York Decision at 6 (quoting certification) (emphasis in decision). The RD also found that the NYNG unit has historically included both Title 5 personnel and Title 32 technicians. Id. at 3, 6 (citing Division of Military and Naval Affairs, State of New York and Association of Civilian Technicians, Inc., New York Council, 1 FLRA 823 (1979). In Alaska National Guard, the RD found that although there was no record evidence about the inclusion or exclusion of Title 5 employees in the unit, "[i]t could be argued that the position does not fall within the express terms of the unit certification because the unit has always been limited to Title 32 technicians." Alaska Decision at 5; see also id. at 2 n.1. Without resolving this ambiguity, the RD determined that the disputed position is within the unit.

      In both cases, the RD found that the section 3329 positions were previously-existing technician positions that were temporarily redesignated as Title 5 competitive service positions to accommodate the displaced technicians. Relying on precedent establishing that reclassification of positions does not automatically affect the appropriateness of an existing unit, the RD found that the temporary designation of the positions as Title 5 competitive service positions did not remove them from the existing units.

      Based on these findings, the RD concluded that the positions would have automatically been included in the NYNG and ANG units when the employees were hired as section 3329 employees unless their inclusion rendered the certified units inappropriate for exclusive recognition.

B.      Appropriate Unit  [n3] 

      The RD identified the following differences between the employment circumstances of the section 3329 employees and the technicians: (1) section 3329 employees are not military members, are not subject to military mobilization, and do not wear military uniforms while on duty; (2) section 3329 employees have statutory appeal rights regarding reductions in force, removals, adverse actions, and suspensions that are different from technicians; (3) section 3329 employees are subject to personnel regulations that are different from technicians; (4) section 3329 employees serve temporary 4-year appointments while technicians are permanent employees; (5) section 3329 employees -- unlike technicians -- have official second line supervisors who are not members of the National Guard; and (6) section 3329 employees receive personnel services from the Air Force Central Civilian Personnel Flight (CCPF), Selfridge Air National Guard Base, Michigan and technicians [ v56 p141 ] receive all personnel services from the National Guard personnel offices in New York and Alaska.

      Taking into account these differences, the RD found in New York National Guard and Alaska National Guard, that the section 3329 employees share a clear and identifiable community of interest with the technicians because they are a "part of the same overall NYNG [and Alaska National Guard (ANG)] organization as the . . . technicians, [they] support[] the same mission and work[] within the same immediate chain of command as the technicians, [they are] subject to the same general working conditions and have the same job titles, work assignments, and similar or related job duties as the technicians with whom [they] work." New York Decision at 8; see also Alaska Decision at 7. The RD found that the section 3329 employees are organizationally and operationally integrated into the NYNG and ANG because they work daily side-by-side with technicians under the same working conditions and operational and supervisory controls as technicians in the units. Further, the RD found that the differences in employing entities between section 3329 employees and technicians does not preclude a finding of shared community of interest. The RD distinguished his earlier Decision and Order in Department of the Air Force, Western Area Defense Sector (Air National Guard), McChord Air Force Base, Washington, Case No. SF-RP-70016 (January 27, 1998) (WADS), in which Title 5 employees were found to constitute an appropriate unit separate from Title 32 employees. Specifically, the RD stated that the Title 5 employees in WADS "supported a separate mission and had no interchange with the National Guard technicians[.]" New York Decision at 9; Alaska Decision at 8.

      The RD also found that the inclusion of the section 3329 employees in the existing units would promote effective dealings with the NYNG and the ANG despite the differences in servicing personnel offices. Citing Department of the Navy, Naval Supply Center Puget Sound, Bremerton, Washington, 53 FLRA 173 (1997) (Naval Supply Center), the RD found that there was no showing that the personnel office servicing employees has any direct involvement in collective bargaining, application of personnel policies, or setting of labor relations policies for section 3329 employees. In this connection, the RD found that the "nexus of the employment relationship for the Title 5 [section 3329] employees rests with the [NYNG]" and ANG. New York Decision at 11; see Alaska Decision at 10, n.2.

      Finally, in both cases, the RD found that the inclusion of the section 3329 employees in the existing units would promote the efficiency of agency operations because "all employees who perform the same work in the same location in support of the same mission and in the same chain of command conforms with both the organizational and operational structure of the [NYNG]" and ANG. New York Decision at 11; see Alaska Decision at 10. In reaching that conclusion, the RD found that there was no evidence to suggest that inclusion of the employees would increase costs or adversely affect productivity and use of resources.

      Based on the foregoing, in New York National Guard and Alaska National Guard, the RD concluded that the inclusion of the three section 3329 employees in the existing units would not render the units inappropriate. He therefore granted the requested clarifications.

V.     Positions of the Parties

A.      Applications for Review

      The NYNG, ANG and Intervenor Selfridge ANG (the Activities) assert that the RD's decisions are "not based on stipulated fact and documentary evidence and do[] not meet the statutory requirements of 5 U.S.C. § 7112(a)." [n4] New York Application at 1; Alaska Application at 1.

      NYNG and ANG make the identical argument that the RD erred in concluding that the NYNG unit and ANG unit are appropriate under 5 U.S.C. § 7112(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute). NYNG and ANG assert that the RD's previous decision in WADS is directly analogous to the facts presented in these cases. In particular, NYNG and ANG argue that the differences between section 3329 employees and technicians dictate that the units are not appropriate. See New York Application at 13-14; Alaska Application at 13-14.

      NYNG and ANG also argue that the employer of the employees at issue is the National Guard Bureau, and not the Adjutant Generals of New York and Alaska, who are the employers of the technicians. According to NYNG and ANG, the Adjutant General cannot bind the Chief of the National Guard Bureau on the terms of employment of section 3329 employees because the Adjutant General does not employ section 3329 employees. The Activities assert that under 5 U.S.C. § 2105(a)(1)(F), Adjutants General may only employ and administer technicians employed pursuant to section 709 of Title 32. See New York Application at 14-15; Alaska Application at 14. [ v56 p142 ]

      In New York National Guard, NYNG also asserts that the RD erred in finding that the NYNG unit has historically included both Title 5 personnel and Title 32 technicians. Additionally, NYNG claims that the RD erred in finding that the two employees are "assigned" to the NYNG. New York Application at 10. Finally, NYNG asserts that the RD erred in finding that the positions held by the section 3329 employees were Title 32 excepted service positions prior to being filled by the two section 3329 employees. NYNG claims that the positions at issue were new temporary Title 5 positions authorized only for the employment of former technicians. ANG makes an identical claim in Alaska National Guard.

B.     Union's Opposition

      In New York National Guard and Alaska National Guard, the Union argues that if the employees at issue are not permitted in the units, then the employees would be excluded from the only possible appropriate units. The Union claims that the employees have a community of interest with the technicians with whom they work, their working conditions are similar, and they have the same first-level supervisor.

      The Union also argues that the circumstances in New York National Guard and Alaska National Guard are distinguishable from the RD's previous decision in WADS. In particular, the Union asserts that in WADS the Title 5 employees at issue worked with each other at the same work site and did not work with technicians. In contrast, the Union claims that the three employees at issue work only with technicians and not with each other.

VI.     Analysis and Conclusions

      We construe the Activities' assertions as claiming that the RD "[f]ailed to apply established law[,]" and "[c]ommitted a clear and prejudicial error concerning a substantial factual matter." 5 C.F.R. § 2422.32(c)(3)(I), (iii).

A.      The RD Applied Establish Law in Determining Whether the NYNG and the ANG Units Are Appropriate

      New employees are automatically included in an existing bargaining unit where their positions fall within the express terms of a bargaining certificate and where their inclusion does not render the bargaining unit inappropriate. See Department of the Army, Headquarters, Fort Dix, Fort Dix, New Jersey, 53 FLRA 287, 294 (1997) (Fort Dix); U.S. Department of the Air Force, Carswell Air Force Base, Texas, 40 FLRA 221, 229-30 (1991). A unit will be found appropriate under section 7112(a) of the Statute if: (1) the employees at issue share a clear and identifiable community of interest; (2) the unit promotes effective dealings with the agency involved; and (3) the unit promotes efficiency of operations of the agency involved. See United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 959 (1997) (FISC). Determinations as to each criterion are made on a case-by-case basis by balancing the relevant factors. See id. at 960.

1.     Section 3329 employees are included in the unit descriptions in the certifications

      The language of the unit description in the NYNG certification of representation -- that "[a]ll . . . Air Defense National Guard Technicians and employees employed in the United States Property and Fiscal Office located in the State of New York" are included in the unit -- is sufficiently broad to include section 3329 employees. New York Decision at 3. The language of the unit description in the ANG certification -- that "[a]ll wage grade and general schedule employees employed by the Alaska National Guard" are included in the unit -- is similarly broad and includes section 3329 employees. Alaska Decision at 2. While the language of the two certifications differs slightly -- "employed in" and "employed by" -- neither certification is limited only to technician employees and both certifications permit the inclusion of employees who are assigned to and performing duties at the NYNG and ANG.

      The Activities dispute the RD's factual findings that Title 5 employees were historically included in the NYNG unit and that the positions at issue were Title 32 excepted service positions in the NYNG and ANG prior to being filled by the three section 3329 employees. However, to the extent that the RD relied on these findings, they are not determinative in evaluating whether the positions at issue fall within the express terms of the bargaining unit. [n5]  In this regard, the Authority found in Fort Dix that the language of the certification is a determinative factor and not whether there actually were individuals ever employed in positions or categories of positions that are the same or similar to those held by the new employees. [n6]  53 FLRA at 295. [ v56 p143 ]

      Further, the record does not support the Activities' arguments that section 3329 employees are employed by the federal National Guard Bureau, rather than the Adjutants General, and therefore may not be included in a bargaining unit with technicians. The stipulations relied on by the Activities provide that section 3329 employees are "assigned to the National Guard Bureau," with a "duty station" in the state Agency and official "organization" designation in the state Agency. Hearing Joint Exhibits 3, 4 and 5 at par. 3. The appointment forms for the section 3329 employees in New York National Guard indicate that they are assigned to the state New York National Guard. [n7]  Petitioner's Hearing Exhibits 84 and 85 (Standard form 50). In addition, the Activities concede that "space allocations" for the positions filled by the section 3329 employees were provided to the National Guard Bureau by the Department of the Army. See New York Application at 7; Alaska Application at 5. Even assuming that there are limitations on the collective bargaining relationship caused by the relationship between the state Guards and the federal National Guard Bureau, those limitations do not prevent inclusion of the section 3329 employees in the existing units. See Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Arizona, 53 FLRA 1200, 1218-20 (1998).

      Finally, the Activities assert that the section 3329 employees at issue are serving in temporary positions that will soon expire and that the sole purpose of the Union's petitions in these cases is to provide the employees with access to the negotiated grievance procedures for the purposes of arbitrating a particular back pay and service credit grievance. See New York Application at 8; Alaska Application at 6. However, the Activities' arguments do not provide any basis for concluding that these employees may not be included in the bargaining unit. In this regard, longstanding precedent holds that temporary employees may properly be included in bargaining units with permanent employees. See Federal Deposit Insurance Corporation and National Treasury Employees Union, 34 FLRA 50, 57-58 (1989). Further, no support is provided for concluding that the purpose of the petition is a relevant consideration.

      Based on the foregoing, we find that the RD correctly found that section 3329 employees are included in the NYNG and ANG unit certifications.

2.     A unit including section 3329 employees and technicians is appropriate

a.     Section 3329 employees and technicians share a clear and identifiable community of interest

      The fundamental premise of the first criterion -- that employees share a clear and identifiable community of interest -- is to "ensure that it is `possible for them to deal collectively [with management] as a single group[.]'" See FISC, 52 FLRA at 960 (quoting Department of Transportation, Federal Aviation Administration, Southwest Region, Tulsa Airway Facilities Sector, 3 FLRC 235, 239 (1975)). In determining whether employees share a clear and identifiable community of interest, the Authority examines such factors as whether the employees in the proposed unit: are a part of the same organizational component of the agency; support the same mission; are subject to the same chain of command; have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same personnel office. See U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 47 FLRA 602 (1993); Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245 (1992). In addition, factors such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation may be relevant. See Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 46 FLRA 502 (1992). [ v56 p144 ]

      The RD found that the differences highlighted by the NYNG and ANG - different personnel servicing locations, personnel regulations, military membership, and term of positions -- did not overcome the factors indicating that the section 3329 employees and technicians do share a community of interest, such as the fact that they support the same mission and have similar day-to-day functions, working conditions, and job duties. The RD's findings regarding these various factors are supported by the record, and the conclusions he reached based on those findings are consistent with Authority precedent. See, e.g., Naval Supply Center, 53 FLRA at 179-82; U.S. Department of the Interior, National Park Service, Rocky Mountain National Park, Estes Park, Colorado and International Brotherhood of Teamsters, Local No. 961 (IBI/AFL-CIO), 48 FLRA 1404, 1406-07 (1994).

      Relying on the RD's prior decision in WADS, the Activities argue that the differences between the section 3329 employees and technicians indicate that the employees do not share a community of interest. The facts in WADS, however, are distinguishable. WADS concerned a reorganization in which a state Air National Guard assumed the air defense mission of the Western Area Defense Sector (WADS), which included a group of Title 5 employees represented by a different union than the union that represented Air National Guard technicians. As found by the RD, the WADS employees supported a separate mission and performed different job duties than the National Guard technicians, their working conditions were different, they were subject to different direct and indirect supervision, and there was no interchange or interaction between the WADS employees and the technicians. In fact, none of the similarities between the section 3329 employees and the technicians present in this case were present in WADS.

      Based on the foregoing, we find that the RD was correct in finding that the section 3329 employees share a community of interest with the unit technicians.

b.     The proposed unit would promote effective dealings with the Agency and efficiency of operations of the Agency  [n8] 

      The "effective dealings" criterion pertains to the relationship between management and the exclusive representative of the proposed unit. See FISC, 52 FLRA at 961. The "efficiency of operations" criterion pertains to whether the structure of the bargaining unit bears a rational relationship to the operational and organizational structure of the agency. Id. at 961.

      The Activities argue that it would not be "efficient or effective to have a bargaining unit containing both Title 5 and Title 32 employees" because of the numerous differences in the two types of employees. New York Application at 16; Alaska Application at 16. However, NYNG and ANG have made no argument or submitted any evidence challenging the RD's conclusions that the inclusion of the employees at issue would promote effective dealings and the efficiency of operations at the NYNG and ANG. As such, there is no basis for finding that the RD erred in reaching those conclusions.

      Accordingly, we find that the RD was correct in finding that the proposed units would promote effective dealings and the efficiency of operations at the NYNG and ANG.

B.     Conclusion

      Based on the foregoing, we conclude that the RD in New York National Guard and Alaska National Guard did not commit a clear and prejudicial error concerning a substantial factual matter, and properly applied established law in determining that the NYNG unit and the ANG unit are appropriate.

VII.     Order

      The applications are denied.



Footnote # 1 for 56 FLRA No. 17

   The Technicians Act, 32 U.S.C. §§ 709 states in relevant part:

(a)     Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsection (b) of this section persons may be employed as technicians
. . . .
(b)     A technician employed under subsection (a) shall, while so employed--
(1)     be a member of the National Guard[.]

Footnote # 2 for 56 FLRA No. 17

   The Certification of Representation of the NYNG unit describes the unit as the following:

Included:     All Army, Air, Air Defense National Guard Technicians and employees employed in the United States Property and Fiscal Office located in the State of New York.
Excluded:     All professional employees; guards; management officials; supervisors; and employees described in 5 U.S.C. § 7112(b)(2),(3),(4),(6) and (7).

New York Decision at 3 (quoting the Certification of Representation issued in Case No. BN-RO-40060).

      The Certification of Representation of the ANG unit describes the unit as the following:

Included:     All wage grade and general schedule employees employed by the Alaska National Guard (Army and Air Force).
Excluded:     Professional employees; management officials; supervisors; and employees described in 5 U.S.C. § 7112(b)(2),(3),(4),(6) and (7).

Alaska Decision at 2 (quoting the Certification of Representation issued in Case No. 9-RO-10004).


Footnote # 3 for 56 FLRA No. 17

   5 U.S.C. § 7112(a) provides, in pertinent part, that:

[The Authority] shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved.

Footnote # 4 for 56 FLRA No. 17

   In New York National Guard, Selfridge ANG makes the exact same arguments made by the NYNG in its application. Accordingly, we do not