Federal Mediation and Conciliation Service, Region 7, San Francisco, CA (Activity) and Council of Federal Mediators, Region 7 (Petitioner)  

 3 FLRA No. 19
 
 FEDERAL MEDIATION AND CONCILIATION SERVICE
 REGION 7
 SAN FRANCISCO, CALIFORNIA
 Activity
 
 and
 
 COUNCIL OF FEDERAL MEDIATORS
 REGION 7
 Petitioner
 
                                            Case No. 9-RO-14
 
                            DECISION AND ORDER
 
    UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
 UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C.  7101-7135, A HEARING WAS HELD BEFORE
 HEARING OFFICER PATRICIA BARAN ON NOVEMBER 14, 1979.  THE AUTHORITY HAS
 REVIEWED THE HEARING OFFICER'S RULINGS MADE AT THE HEARING AND FINDS
 THAT THEY ARE FREE FROM PREJUDICIAL ERROR.  THE RULINGS ARE HEREBY
 AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY BOTH
 PARTIES AND AN AMICUS CURIAE BRIEF FILED BY THE OFFICE OF PERSONNEL
 MANAGEMENT (OPM), THE AUTHORITY FINDS:
 
    1.  THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
 EMPLOYEES OF THE ACTIVITY.
 
    2.  THE PETITIONER, COUNCIL OF FEDERAL MEDIATORS, REGION 7 (COUNCIL),
 SEEKS AN ELECTION IN A UNIT CONSISTING OF ALL FIELD MEDIATOR EMPLOYEES
 OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE, REGION 7, EXCLUDING
 ALL OTHER EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS, AND EMPLOYEES
 DESCRIBED IN 5 U.S.C. 7112(B)(2), (3), (4), (6) AND (7).
 
    THE THRESHHOLD ISSUE IN THIS CASE IS WHETHER THE AUTHORITY IS
 PRECLUDED FROM FINDING THE PETITIONED FOR UNIT APPROPRIATE BECAUSE OF
 THE SECTION 7112(B)(4) PROSCRIPTION THAT A UNIT MAY NOT BE DETERMINED
 APPROPRIATE IF IT INCLUDES AN EMPLOYEE ENGAGED IN ADMINISTERING THE
 PROVISIONS OF THE STATUTE.  THAT IS, THE AUTHORITY MAY NOT FIND
 APPROPRIATE THE UNIT SOUGHT IF IT INCLUDES EMPLOYEES ENGAGED IN
 ADMINISTERING PROVISIONS OF THE STATUTE.  THE QUESTION THEN BEFORE THE
 AUTHORITY IS WHETHER THE EMPLOYEES SOUGHT ARE ENGAGED IN THE
 ADMINISTRATION OF PROVISIONS OF THE STATUTE.
 
    SECTION 7119(A) OF THE STATUTE PROVIDES:
 
    THE FEDERAL MEDIATION AND CONCILIATION SERVICE SHALL PROVIDE SERVICES
 AND ASSISTANCE TO
 
    AGENCIES AND EXCLUSIVE REPRESENTATIVES IN THE RESOLUTION OF
 NEGOTIATION IMPASSES.  THE SERVICE
 
    SHALL DETERMINE UNDER WHAT CIRCUMSTANCES AND IN WHAT MANNER IT SHALL
 PROVIDE SERVICES AND
 
    ASSISTANCE.
 
    PURSUANT TO SECTION 7134 OF THE STATUTE, THE SERVICE PRESCRIBED RULES
 AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THE CHAPTER WHICH ARE
 APPLICABLE TO THE SERVICE.
 
    THE SERVICE IS HEADED BY ITS DIRECTOR, WHO IS SUPPORTED BY A NATIONAL
 OFFICE STAFF LOCATED IN WASHINGTON, D.C.  WITHIN THE NATIONAL OFFICE OF
 THE SERVICE THERE EXISTS A POSITION OF NATIONAL COORDINATOR FOR FEDERAL
 SECTOR MEDIATION SERVICES, WHICH PROVIDES OVERSIGHT, REVIEW, AND
 ASSISTANCE WITH RESPECT TO THE SERVICE'S FEDERAL SECTOR
 RESPONSIBILITIES.  THE FIELD OPERATION OF THE SERVICE IS DIVIDED INTO
 EIGHT REGIONAL OFFICES.  WITHIN THIS FRAMEWORK, THERE ARE A TOTAL OF 80
 FIELD STATIONS, SOME OF WHICH ARE MANNED BY A SINGLE MEDIATOR.  THE
 SERVICE EMPLOYS SOME 278 FIELD MEDIATORS NATIONWIDE.  REGION 7, WHICH IS
 HEADQUARTERED IN SAN FRANCISCO, CALIFORNIA HAS 32 MEDIATORS ASSIGNED TO
 IT.
 
    PURSUANT TO THE SERVICE'S REGULATIONS, A PARTY ATTEMPTING TO AMEND,
 MODIFY OR TERMINATE ANY EXISTING LABOR AGREEMENT IN THE FEDERAL SECTOR
 IS REQUIRED TO GIVE THE SERVICE AT LEAST 30 DAYS NOTICE.  UPON RECEIPT
 OF SUCH A NOTICE, THE CASE IS ASSIGNED TO A MEDIATOR.  UPON RECEIVING AN
 ASSIGNMENT, THE MEDIATOR CONTACTS THE PARTIES AND A DETERMINATION IS
 THEN MADE AS TO WHETHER THE MEDIATOR WILL BE ACTIVELY INVOLVED IN ANY
 PARTICULAR MATTER.  THE MEDIATOR COORDINATES WITH THE REGIONAL OFFICE
 FEDERAL SECTOR COORDINATOR, AS WELL AS THE NATIONAL OFFICE FEDERAL
 SECTOR COORDINATOR, ON THE EXTENT OF THE SERVICE'S INVOLVEMENT IN A
 PARTICULAR CASE.  THE NATURE OF INVOLVEMENT OF COURSE VARIES WITH THE
 CIRCUMSTANCES, BUT GENERALLY INVOLVES TRADITIONAL MEDIATION AND
 CONCILIATION, SOMETIMES INCLUDING THE MAKING OF RECOMMENDATIONS ON
 SETTLEMENT TERMS.
 
    THE SERVICE ALSO PROVIDES ITS FEDERAL SECTOR CLIENTS WITH TECHNICAL
 ASSISTANCE.  THIS COULD INVOLVE, FOR EXAMPLE, INSTRUCTION IN NEGOTIATION
 OR COMMUNICATION TECHNIQUES IN A PREVENTIVE EFFORT TO DETER AND MINIMIZE
 LABOR DISPUTES.  THE SERVICE HAS ALSO MADE A PRELIMINARY EFFORT IN THE
 FEDERAL SECTOR TO PROVIDE MEDIATORS FROM THE SERVICE WHO SERVE AS
 MEDIATORS PURSUANT TO THE PARTIES' AGREEMENTS IN THE RESOLUTION OF
 PARTICULAR GRIEVANCES.
 
    UNDER THE FOREGOING CIRCUMSTANCES, THE AUTHORITY FINDS THAT MEDIATORS
 EMPLOYED BY THE SERVICE, INCLUDING THOSE SOUGHT BY THE PETITION, ARE
 ENGAGED IN ADMINISTERING PROVISIONS OF THE STATUTE AND, THEREFORE,
 PURSUANT TO SECTION 7112(B)(4), MAY NOT BE INCLUDED IN AN APPROPRIATE
 UNIT.  THUS, AS DISCUSSED ABOVE, THE SERVICE'S 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.  THEY THEREBY ARE ENGAGED IN ADMINISTERING THE PROVISIONS OF
 THE STATUTE AND THE PETITION HEREIN MUST BE DISMISSED.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 9-RO-14 BE, AND IT
 HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 25, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY