United States, Department of Defense, Defense Commissary Agency (Agency) and American Federation of Government Employees, AFL-CIO (Labor Organization/Petitioner)

[ v59 p990 ]

59 FLRA No. 174

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
AFL-CIO
(Labor Organization/Petitioner)

BN-RP-03-0013

_____

ORDER
DENYING APPLICATION FOR REVIEW

May 28, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This case is before the Authority on an application for review filed by the Agency under § 2422.31 of the Authority's Regulations. The Agency seeks review of the Regional Director's (RD's) Decision and Order, in which the RD found that student employees were properly included within the certified bargaining unit. No opposition to the application was filed.

      For the reasons that follow, we conclude that the Agency has failed to establish that review of the RD's Decision and Order is warranted. Accordingly, we deny the application for review.

II.      Background and RD's Decision

      The Union filed a petition seeking to clarify its existing national consolidated bargaining unit to include temporary student employees at the McGuire Air Force Base Commissary, New Jersey (the Activity), who are appointed for ninety days or more under a Student Educational Employment Program. As relevant here, the Regional Director (RD) found that the student employees are covered by the existing certification's unit description, and thus, should be included in the unit unless their inclusion would render the certified unit inappropriate under the appropriate unit criteria set forth in § 7112(a) of the Federal Service Labor-Management Relations Statute (Statute). [n1] 

      With regard to the community of interest criterion of § 7112(a), the RD noted that, in determining whether temporary employees share a community of interest with other employees, it is necessary to determine whether they have a reasonable expectation of continued employment. The RD found that eight of the approximately forty students employed at the time of the hearing had their appointments extended for an additional year and that "[t]he record revealed . . . that as long as students performed well and wanted to remain, their appointments were extended." RD Decision at 5. The RD also found that there was evidence of only two students whose appointments the Agency had refused to extend. Additionally, the RD determined that the evidence indicated that all three of the student employees who applied for permanent positions were selected. Finding that the student employees at issue here are similar to the student employees in United States Corps of Eng'rs, Kan. City Dist., Kan. City, Mo., 15 FLRA 548 (1984) (Corps of Eng'rs), the RD concluded that the student employees have a reasonable expectation of continued employment, and he also found that the remainder of the pertinent factors supported a conclusion that the community of interest criterion was met. [n2] 

      With regard to the effective dealings and efficiency criteria of § 7112(a), the RD found that the criteria set out by the Authority had been met. [n3]  In doing so, he rejected the Agency's claim that including the student employees in the unit would unduly interfere with the Agency's ability to schedule employees. Instead, he determined that "the record does not support the Agency's contention that it would lose key flexibility in [ v59 p991 ] scheduling the student employees" and that "[f]urthermore, this issue could be addressed through the collective bargaining process." RD Decision at 9 (citing United States Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Nat'l Marine Fisheries Serv., N.E. Region, 24 FLRA 922, 926 (1986)(Commerce)). Further, he determined that the remaining pertinent factors supported a conclusion that inclusion of the student employees would promote effective dealings and efficiency.

      Accordingly, the RD concluded that inclusion of the student employees would not render the existing unit inappropriate, and he clarified the unit to include them.

III.     The Agency's Application for Review

      The Agency asserts that the Authority should reconsider Dep't of the Army, H.Q., Fort Dix, Fort Dix, N.J., 53 FLRA 287 (1997) (Fort Dix), which describes a presumption that new categories of employees falling within the express terms of a unit certification will be included in the unit. In this connection, the Agency claims that unit descriptions are required to be written in broad terms and that parties cannot be expected to anticipate categories of employees that do not yet exist at the time of the certification. According to the Agency, the Authority should adopt a policy that requires the party seeking inclusion of new categories of employees to file a unit clarification petition.

      In addition, the Agency asserts that, in concluding that the student employees have a reasonable expectation of continued employment, the RD failed to apply established law, [n4]  should reconsider certain case law, [n5]  and made clear and prejudicial errors concerning substantial factual matters. In the latter connection, the Agency asserts that the RD erred by finding that the student employees have a reasonable expectation of continued employment because: (1) they have a turnover rate that is greater than 50%; (2) only eight of them have been employed for more than one year; (3) only three of them have been hired on career-conditional appointments, and two of those students applied for such appointments because they wanted a job with an expectation of continued employment; and (4) the RD discounted evidence that eighteen student employees have been terminated. Further, the Agency contends that the RD erroneously found that the time and costs associated with background checks, and the fact that student employees are "known factors" and are already trained, could favor student employees when they apply for permanent positions. Application at 7.

      Finally, the Agency argues that, in concluding that the parties can negotiate student schedules -- and that their inclusion would promote efficiency of Agency operations -- the RD made clear and prejudicial errors concerning substantial factual matters and failed to apply established law. [n6]  Specifically, the Agency asserts that, by finding that the parties here can negotiate such issues, the RD ignored the contrary testimony of the Agency's chief negotiator. Accordingly, the Agency claims that the RD's reliance on Commerce, 24 FLRA at 926, was misplaced.

IV.     Analysis and Conclusions

A.     Reconsideration of Fort Dix is not warranted.

      The Authority has long held that new categories of employees are automatically included in an existing bargaining unit where their positions fall within the express terms of a bargaining unit certificate and where their inclusion does not render the unit inappropriate. See Fort Dix, 53 FLRA at 294 (citing United States Dep't of the Air Force, Carswell Air Force Base, Tex., 40 FLRA 221, 229-30 (1991); United States Army Air Def. Artillery Ctr. & Fort Bliss, Fort Bliss, Tex., 31 FLRA 938 (1988); and Commerce, 24 FLRA at 926).

The bargaining unit certification at issue in this case includes, as relevant here, "temporary employees with appointments of 90 days or more" at the Activity. [ v59 p992 ] RD Decision at 2. The RD found, and it is undisputed, that the student employees fall within the express terms of the bargaining unit certificate.

      The Agency requests that the Authority reconsider Fort Dix insofar as it establishes a presumption that new categories of employees falling within the express terms of a unit certification are included in the unit. However, the longstanding policy stated in Fort Dix provides for stability in bargaining units when, in the normal course of events, an agency hires new employees or categories of employees. Contrary to the Agency's claim, this policy does not require parties to anticipate future categories of employees at the time of certification. Instead, the policy expressly permits parties to file a clarification of unit petition at any time, asserting that the inclusion of new employees in an existing unit renders the unit inappropriate. Unlike the alternative policy proposed by the Agency -- requiring parties to file a petition every time a new category of employees is hired if the parties believe that the employees should be included in the unit -- the Authority's policy limits the filing of petitions to circumstances where a party actually questions unit appropriateness under the Statute. This policy is consistent with the intent of the Statute to "promote stability in labor-management relationships." Naval Facilities Eng'g Serv. Ctr., Port Hueneme, Cal., 50 FLRA, 363, 367 (1995) (citing NTEU v. FLRA, 810 F.2d 295, 300 (D.C. Cir. 1987)). For these reasons, we conclude that reconsideration of the Authority's well-established law and policy on this matter is not warranted.

B.     The RD did not err in finding reasonable expectation of continued employment.

1.     Failure to apply established law

      A unit including temporary employees is appropriate if the temporary employees have a reasonable expectation of continued employment and the appropriate unit criteria in § 7112(a) of the Statute are otherwise met. See United States Dep't of the Air Force, Lackland Air Force Base, San Antonio, Tex., 59 FLRA 739, 741 (2004) (citation omitted). The Authority has found that temporary employees had a reasonable expectation of continued employment where there was no specific term limitation on their employment and they were converted with some frequency to regular appointments. See United States Dep't of the Air Force, 90th Missile Wing (SAC), F.E. Warren Air Force Base, Cheyenne, Wyo., 48 FLRA 650, 653, 655-56 (1993). Even where temporary employees are appointed for a specific term, they may have a reasonable expectation of continued employment beyond that term. In this connection, the Authority has found temporary student employees appointed to one-year terms pursuant to a "Stay-in-School Program" had a reasonable expectation of continued employment where the evidence established that the students' terms could be renewed annually if they continued to meet the criteria for the program, and the appointments were generally renewed. Corps of Eng'rs, 15 FLRA 548.

      Although the student employees at issue here are appointed to one-year terms, the RD found that "[t]he record revealed . . . that as long as students performed well and wanted to remain, their appointments were extended." RD Decision at 5. As discussed further below, we find that the RD did not err in making that factual determination. Thus, this case is materially identical to Corps of Eng'rs.

      The Agency contends that Corps of Eng'rs should be reconsidered because, in that decision, the Authority failed to follow the Authority's prior decisions in Dep't of Agric., Animal Plant Health Inspection Serv., Plant Prot. Quarantine, Pink Bollworm Rearing Facility, 6 FLRA 261 (1981) (APHIS), and FMCS, 5 FLRA 28 (1981). However, the facts in Corps of Eng'rs were materially different from those in APHIS and FMCS. In APHIS, the employees' appointments were limited to six months, and extensions were granted only occasionally. In FMCS, three employees were appointed only for the summer, and one employee was appointed to a one-year term but had "very little prospect" of reappointment. 5 FLRA at 29. By contrast, in Corps of Eng'rs, the employees were employed by the activity for one-year terms and generally had their appointments renewed. As the cases are distinguishable on this material point, the Agency does not demonstrate that the Authority erred by not following APHIS and FMCS in Corps of Eng'rs, and we find that the Agency has not demonstrated that reconsideration of Corps of Eng'rs is warranted.

      Further, the instant case is distinguishable from other cases cited by the Agency. Unlike FAA Technical Ctr., Atl. City Airport, N.J., 44 FLRA 1238 (1992), the student employees at issue here are not supervisors who were temporarily detailed to temporarily-established positions while retaining supervisory pay and grade; instead, they are appointed to positions in which they may remain indefinitely if they continue to perform satisfactorily and meet the pertinent regulatory criteria. In addition, unlike H.Q., XVIII Airborne Corps & Fort Bragg, Fort Bragg, N.C., 36 FLRA 237 (1990), not only is there record evidence supporting a conclusion that the student employees have a reasonable expectation of continued employment, but also the RD found that the student employees and regular employees at the Activity [ v59 p993 ] generally perform the same work, share the same titles and series, work side-by-side, and utilize the same chain of command. Moreover, unlike United States Army Eng'r Activity, Capital Area, Fort Myer, Va., 34 FLRA 38 (1989), this case does not present a situation where changed circumstances subsequent to the hearing are claimed to demonstrate that the RD erred in finding regarding reasonable expectation of continued employment.

      Because the RD's decision is consistent with Authority precedent, we conclude that the RD did not fail to apply established law in finding that the student employees have a reasonable expectation of continued employment.

2.     Clear and prejudicial errors concerning substantial factual matters

      The Agency contends that the RD made factual errors in concluding that the temporary employees have a reasonable expectation of continued employment. As discussed above, the RD's conclusion that there is a reasonable expectation of continued employment is supported by his finding that "as long as students performed well and wanted to remain, their appointments were extended." RD Decision at 5. Record evidence supports the RD's finding in this regard. See Tr. at 308 (student whose term was extended testified that "it's pretty much the understanding . . . that you're on for how long you're in school, as long as you're in school[]"); id. at 313 (same student testified that, when he was hired, management told him that "the only stipulation" management had was that "you had to stay in school to keep the job[]"); id. at 253 (Agency chief negotiator testified that "according to the store management, they have submitted paperwork to extend" certain student employees).

      The Agency asserts that the student employees do not have a reasonable expectation of continued employment because: the turnover rate of student employees has been greater than 50%; only eight of the current student employees have been employed at the Activity for over one year; only three employees have been accepted into career-conditional positions; and eighteen student employees have been terminated for failure to maintain their status as students. However, the Agency does not explain how these statistics demonstrate that student employees cannot remain at the Activity if they continue to qualify for employment and want to remain. In this connection, we note that there was testimony that the turnover rate at the Activity is high generally. See id. at 282 (testimony that the Activity has "a high turnover rate in general because they are such low-grade positions").

      The Agency also asserts that the RD erred in finding that the time and costs associated with background checks, and the fact that student employees are "known factors" and are largely trained, could be factors in determining whether to permanently hire student employees. RD Decision at 6. Although the RD made these findings in his background findings of fact, he did not rely on them in his analysis and conclusions. Even assuming that these factors are relevant to determining whether the student employees have a reasonable expectation of continued employment, the Agency provides no evidence that the RD clearly erred in these findings, and record evidence supports the RD. See Tr. at 123 (testimony of store director that "it does cost the agency to do background checks on the -- the employees[]"); id. at 115 (with regard to whether student employees would have "an equal or better chance" than other applicants in getting a permanent position, store director testified "if everything worked out as far as their performance, customer service, attitude, then, yes, we certainly encourage that.")

      For the foregoing reasons, we conclude that the Agency has not demonstrated that the RD's finding regarding reasonable expectation of continued employment was based on clear and prejudicial errors concerning substantial factual matters.

C.     The RD did not err in his findings regarding ability to negotiate student schedules.

      The Agency asserts that the RD erred in finding that issues regarding student employee schedules could be addressed through collective bargaining. In this connection, the RD found that, although the Agency "is required to give consideration to a student [employee's] school responsibilities when establishing their work schedule, nothing in the record suggests or warrants a finding that the interests of management and the students cannot be accommodated through the collective bargaining process." RD Decision at 8.

      The Agency provides no basis for concluding that the parties' current Master Labor Agreement (MLA) precludes negotiations over student schedules. [n7]  In this connection, the Agency did not provide before the RD, and does not provide before the Authority, a copy of the [ v59 p994 ] current MLA. Although the Agency chief negotiator testified that the current MLA does not list scheduling of employees as a subject that may be negotiated locally, see Tr. at 241-43, the Agency provides no basis for concluding that the RD erred by declining to credit this non-specific, unsupported testimony.

      Further, even assuming that the current MLA contains the same pertinent provisions as the parties' expired 1997 MLA -- the primary focus of the chief negotiator's testimony -- that would not provide a basis for finding that the RD clearly erred in this regard. In this connection, the chief negotiator relied on Article 6, Section 2 of the expired MLA, which pertinently provided that "[a] Supplemental Agreement is limited to: matters identified for supplementation in the MLA." Application, Attachment C at 10. However, Article 11, Section 14 of the expired agreement provided that "[f]ixed schedules" for full-time employees, and "[t]he numbers of fixed schedules for part-time employees[,]" may be "negotiated locally." Id. at 30 & 31. Thus, there is no basis for concluding that local negotiations over student schedules are prohibited. Accordingly, the RD did not err by relying on Commerce, 24 FLRA 922, where the Authority held that the fact that additional issues could be resolved through collective bargaining supported the appropriateness of the unit.

      Finally, even if the current MLA precluded negotiations over student schedules, the MLA could not be enforced in a way that would fail to accommodate student employees' academic schedules. In this connection, under pertinent regulations, "the student's work schedule should not interfere with the student's academic schedule." 5 C.F.R. § 213.3202(a)(3). As there is no dispute that the regulations were in effect prior to the effective date of the current MLA, the new MLA cannot be enforced in a manner that is inconsistent with the regulations. See GSA, Nat'l Capital Region, 42 FLRA 121, 130 (1991) (Government-wide regulations control over conflicting provisions in a collective bargaining agreement unless the agreement was in effect prior to the date the regulations were prescribed). Accordingly, nothing in the MLA could preclude the Agency from determining student schedules that take into account the students' academic schedules.

      For the foregoing reasons, we conclude that the RD did not commit a clear and prejudicial error concerning substantial factual matters, or fail to apply established law, in his findings regarding negotiation of student schedules. [n8] 

V.     Order

      The Agency's application for review is denied.



Footnote # 1 for 59 FLRA No. 174 - Authority's Decision

   Section 7112(a) of the Statute 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 # 2 for 59 FLRA No. 174 - Authority's Decision

   In order to determine 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 United States Dep't of the Navy, Fleet & Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 960-61 (1997) (FISC) (citations omitted). 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 id. at 961. As the RD's findings regarding these community of interest factors are not challenged, we do not address them further.


Footnote # 3 for 59 FLRA No. 174 - Authority's Decision

   In order to determine whether a proposed unit would promote effective dealings, the Authority examines such factors as: the past collective bargaining experience of the parties; the locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit; the limitations, if any, on the negotiation of matters of critical concern to employees in the proposed unit; and the level at which labor relations policy is set in the agency. See FISC, 52 FLRA at 961. In order to determine whether a proposed unit would promote efficiency of agency operations, the Authority examines factors pertaining to the effect of the proposed unit on agency operations in terms of cost, productivity and use of resources. See id. As the RD's findings regarding these effective dealings and efficiency factors are not challenged, we do not address them further.


Footnote # 4 for 59 FLRA No. 174 - Authority's Decision

   The Agency cites: United States Dep't of the Air Force, 90th Missile Wing (SAC), F.E. Warren Air Force Base, Cheyenne, Wyo., 48 FLRA 650 (1993); FAA Technical Ctr., Atl. City Airport, N.J., 44 FLRA 1238 (1992); H.Q., XVIII Airborne Corps & Fort Bragg, Fort Bragg, N.C., 36 FLRA 237 (1990); United States Army Eng'r Activity, Capital Area, Fort Myer, Va., 34 FLRA 38 (1989); Dep't of Agric., Animal Plant Health Inspection Serv., Plant Prot. Quarantine, Pink Bollworm Rearing Facility, 6 FLRA 261 (1981); and FMCS, 5 FLRA 28 (1981).


Footnote # 5 for 59 FLRA No. 174 - Authority's Decision

   The Agency cites Corps of Eng'rs, 15 FLRA FLRA 548.


Footnote # 6 for 59 FLRA No. 174 - Authority's Decision

   The Agency does not cite any law that the RD failed to apply.


Footnote # 7 for 59 FLRA No. 174 - Authority's Decision

   Although the chief negotiator testified that the current MLA was not yet "in effect" at the time of the September 10-11, 2003 hearing, Tr. at 239, the Agency asserts, and it is undisputed, that the new MLA became effective on November 29, 2003. See Application at 13.


Footnote # 8 for 59 FLRA No. 174 - Authority's Decision

   As noted previously, the Agency does not cite any law that the RD failed to apply with regard to th