U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson AFB, Ohio

 1 FLRA No. 27
                                            APRIL 27, 1979
 
 MR. JAMES L. NEUSTADT
 ASSISTANT GENERAL COUNSEL
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 1325 MASSACHUSETTS AVENUE, N.W.
 WASHINGTON, D.C.  20005
 
 MR. VAL BUXTON, CHIEF
 LABOR AND EMPLOYEE RELATIONS DIVISION
 DIRECTORATE OF CIVILIAN PERSONNEL
 DEPARTMENT OF THE AIR FORCE
 AIR FORCE LOGISTICS COMMAND
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO 45433
 
                    RE:  U.S. DEPARTMENT OF THE AIR FORCE, AIR FORCE 
                         LOGISTICS COMMAND, WRIGHT-PATTERSON AFB, 
                         OHIO, Assistant Secretary Case 
                         No. 53-10572(UC), FLRC No. 78A-177
 
 GENTLEMEN:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR JOINT PETITION FOR REVIEW
 OF THE ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
 
    THIS CASE AROSE AS A RESULT OF A PETITION FILED JOINTLY BY THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (THE UNION) AND THE
 AIR FORCE LOGISTICS COMMAND (THE ACTIVITY) SEEKING TO CONSOLIDATE TWO
 UNITS EXCLUSIVELY REPRESENTED BY THE UNION.  ONE OF THE UNITS CONSISTED
 OF ALL NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES AT NINE FACILITIES OF
 THE ACTIVITY, AND THE SECOND CONSISTED OF ALL PROFESSIONAL NURSES AT TWO
 OF THE SAME FACILITIES.  NEITHER THE PARTIES NOR THE EMPLOYEES IN THE
 PROPOSED UNIT SOUGHT AN ELECTION ON THE ISSUE OF THE PROPOSED
 CONSOLIDATION.
 
    THE REGIONAL ADMINISTRATOR (RA), CITING THE FEDERAL LABOR RELATIONS
 COUNCIL'S 1975 REPORT AND RECOMMENDATIONS ON THE AMENDMENT OF EXECUTIVE
 ORDER 11491, /1/ FOUND THAT THE ORDER SPECIFICALLY REQUIRES AN ELECTION
 AMONG PROFESSIONALS IN EVERY CASE WHERE A CONSOLIDATION OF UNITS WOULD
 MIX BOTH PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, AND THAT NO
 DISTINCTION IS MADE AS TO THE SIZE OF THE UNITS BEING CONSOLIDATED, NOR
 HAS ANY EXCEPTION BEEN MADE WHEN AN ELECTION WAS RECENTLY HELD ON THE
 SAME ISSUE IN ONE OF THE UNITS SOUGHT TO BE CONSOLIDATED IN THE PROPOSED
 CONSOLIDATION.  ACCORDINGLY, HE FOUND THAT "AN ELECTION AMONG (THE)
 PROFESSIONALS RESOLVING THE ISSUE OF THEIR INCLUSION OR EXCLUSION FROM
 THE PROPOSED CONSOLIDATED UNIT IS A NECESSARY PART IN THE PROCESS OF
 COMPLETING THE CERTIFICATION OF THE PROPOSED CONSOLIDATED UNIT." HE
 FURTHER FOUND, HOWEVER, THAT THE JOINT PETITIONERS HAD BEEN INFORMED OF
 SUCH REQUIREMENTS BUT REFUSED TO PROCEED TO AN ELECTION AMONG THE
 PROFESSIONAL EMPLOYEES.  HE THEREFORE DISMISSED THE JOINT PETITION.  THE
 ASSISTANT SECRETARY, IN AGREEMENT WITH THE RA AND BASED ON HIS
 REASONING, FOUND THAT DISMISSAL OF THE INSTANT PETITION WAS WARRANTED
 AND ACCORDINGLY DENIED THE PARTIES' REQUESTS FOR REVIEW SEEKING REVERSAL
 OF THE RA'S DISMISSAL OF THE PETITION.
 
    IN THE JOINT PETITION FOR REVIEW, IT IS ALLEGED THAT THE ASSISTANT
 SECRETARY'S DECISION RAISES THE FOLLOWING MAJOR POLICY ISSUE:
 
    "(W)HETHER IN EVERY PROPOSED CONSOLIDATION INVOLVING MIXED
 PROFESSIONAL AND
 
    NON-PROFESSIONAL EMPLOYEES SHOULD SELF-DETERMINATION ELECTIONS FOR
 THE PROFESSIONALS BE
 
    REQUIRED, OR SHOULD SUCH ELECTIONS BE HELD ONLY IN ACCORDANCE WITH
 RATIONAL CRITERIA
 
    CONSISTENT WITH THE POLICY TO FACILITATE UNIT CONSOLIDATION AS
 PROVIDED FOR IN THE COUNCIL'S
 
    REPORT AND RECOMMENDATIONS ON THE AMENDMENT OF EXECUTIVE ORDER 11491,
 JANUARY 1975?"
 
    IN THIS REGARD, IT IS CONTENDED THAT A MINIMUM ONE-YEAR BAR SHOULD BE
 IMPLEMENTED PRECLUDING A VOTE AMONG PROFESSIONAL EMPLOYEES "FOR THE TIME
 PERIOD BETWEEN THE PROFESSIONAL VOTE FOR A PREVIOUS CONSOLIDATION AND A
 SUCCEEDING PETITION FOR CONSOLIDATION WHICH INCLUDES THE PREVIOUS
 CONSOLIDATED UNIT."
 
    IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW OF THE ASSISTANT
 SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2400.2 OF
 THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES.  THAT IS, THE DECISION OF THE ASSISTANT
 SECRETARY DOES NOT PRESENT A MAJOR POLICY ISSUE AND IT IS NEITHER
 ALLEGED, NOR DOES IT APPEAR, THAT HIS DECISION IS ARBITRARY AND
 CAPRICIOUS.
 
    THUS, AS TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION
 RAISES A MAJOR POLICY ISSUE, THE APPEAL FAILS TO CONTAIN ANY SUPPORT FOR
 A CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION IS INCONSISTENT
 WITH THE PURPOSES AND POLICIES OF THE ORDER, AND THEREFORE PRESENTS NO
 BASIS FOR REVIEW.  IN THIS REGARD, THE AUTHORITY NOTES PARTICULARLY THAT
 THE COUNCIL'S 1975 REPORT AND RECOMMENDATIONS (LABOR-MANAGEMENT
 RELATIONS IN THE FEDERAL SERVICE (1975), AT 36) STATES IN PERTINENT
 PART:
 
    SECTION 10(B) OF THE EXECUTIVE ORDER PROHIBITS THE ESTABLISHMENT OF A
 UNIT IF IT INCLUDES
 
    BOTH PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, UNLESS A MAJORITY OF
 THE PROFESSIONAL
 
    EMPLOYEES VOTES FOR INCLUSION IN THE UNIT.  WE BELIEVE THIS
 REQUIREMENT SHOULD LIKEWISE APPLY
 
    WHERE CONSOLIDATION OF EXISTING BARGAINING UNITS IS PROPOSED.  THAT
 IS, IN EVERY CASE WHERE A
 
    CONSOLIDATION OF UNITS WOULD MIX BOTH PROFESSIONAL AND
 NONPROFESSIONAL EMPLOYEES, ALL OF THE
 
    INVOLVED PROFESSIONALS, INCLUDING THOSE ALREADY IN MIXED UNITS,
 SHOULD BE GIVEN A SEPARATE
 
    SELF-DETERMINATION ELECTION ON THE ISSUE OF BEING INCLUDED IN THE
 PROPOSED CONSOLIDATED UNIT
 
    WITH NONPROFESSIONALS.  WHILE PROFESSIONAL EMPLOYEES ALREADY IN MIXED
 UNITS WOULD HAVE VOTED
 
    ONCE FOR INCLUSION WITH NONPROFESSIONALS, THEY WOULD HAVE MADE THAT
 SELECTION IN THE CONTEXT
 
    OF A UNIT STRUCTURE WHICH DIFFERS FROM THAT OF THE PROPOSED
 CONSOLIDATED UNIT.
 
    WE ARE MINDFUL THAT PROVIDING PROFESSIONAL EMPLOYEES WITH A
 SELF-DETERMINATION ELECTION
 
    MIGHT DETRACT FROM OUR RECOMMENDED POLICY OF FACILITATING THE
 CONSOLIDATION OF EXISTING
 
    BARGAINING UNITS IN THAT IT MIGHT RESULT IN SEPARATE CONSOLIDATED
 PROFESSIONAL AND
 
    NONPROFESSIONAL UNITS.  WE BELIEVE, HOWEVER, THAT THIS REQUIREMENT
 WOULD STRIKE A BALANCE
 
    BETWEEN THE PROPOSED POLICY ON CONSOLIDATION OF UNITS AND THE
 EXISTING POLICY CONCERNING THE
 
    INCLUSION OF PROFESSIONAL EMPLOYEES IN A UNIT WITH NONPROFESSIONAL
 EMPLOYEES.
 
    MOREOVER, THE APPEAL NEITHER ALLEGES, NOR DOES IT OTHERWISE APPEAR,
 THAT THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
 POLICY ISSUE, AND SINCE IT IS NEITHER ALLEGED, NOR DOES IT APPEAR, THAT
 HIS DECISION IS ARBITRARY AND CAPRICIOUS, THE APPEAL FAILS TO MEET THE
 REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
 AUTHORITY'S TRANSITION RULES AND REGULATIONS WHICH INCORPORATES BY
 REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE.
 ACCORDINGLY, THE PETITION FOR REVIEW IS HEREBY DENIED.  /2/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    /1/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 36.
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL REFORM ACT OF 1978
 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE BASIS OF
 E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.