Department of Agriculture, Animal Plant Health Inspection Service, Plant Protection Quarantine, Pink Bollworm Rearing Facility (Activity) and National Federation of Federal Employees, Local 376, Independent (Labor Organization/Petitioner)

 6 FLRA No. 44
 
 DEPARTMENT OF AGRICULTURE,
 ANIMAL PLANT HEALTH INSPECTION SERVICE,
 PLANT PROTECTION QUARANTINE,
 PINK BOLLWORM REARING FACILITY
 Activity
 
 and
 
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES
 LOCAL 376, INDEPENDENT
 Labor Organization/Petitioner
 
                                            Case No. 8-RO-26
 
         DECISION AND ORDER ON PETITION FOR CLARIFICATION OF UNIT
 
    AS A RESULT OF 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 A HEARING OFFICER OF THE AUTHORITY.  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 THE BRIEF FILED BY THE
 ACTIVITY, THE AUTHORITY FINDS:  THE PETITIONER, NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES LOCAL 376, INDEPENDENT (HEREINAFTER NFFE), SEEKS TO
 CLARIFY AN EXISTING EXCLUSIVELY RECOGNIZED UNIT OF ALL NONPROFESSIONAL
 GENERAL SCHEDULE EMPLOYEES, WAGE GRADE EMPLOYEES, INCLUDING TEMPORARY
 EMPLOYEES WITH APPOINTMENTS OF 1 YEAR OR MORE EMPLOYED AT THE PINK
 BOLLWORM REARING FACILITY, PHOENIX, ARIZONA /1/ BY INCLUDING WITHIN THAT
 UNIT THOSE TEMPORARY AND INTERMITTENT EMPLOYEES GENERALLY DESCRIBED AS
 LETTER OF AUTHORITY (LA) EMPLOYEES, WHO HAVE APPOINTMENTS LIMITED TO 6
 MONTHS BUT WHO HAVE WORKED LESS THAN 6 MONTHS.  /2/ ALTHOUGH THE
 PETITIONER FILED A REPRESENTATION PETITION IN THE INSTANT CASE, IT IS
 CLEAR FROM THE RECORD THAT THE PETITION SEEKS A DETERMINATION THAT THE
 LA EMPLOYEES ARE CONSIDERED PART OF THE EXISTING UNIT ALREADY
 REPRESENTED AND DOES NOT RAISE A QUESTION CONCERNING REPRESENTATION WITH
 REGARD TO THE UNIT IN QUESTION.  ACCORDINGLY, THE DECISION HEREIN WILL
 BE LIMITED TO THE ONLY ISSUE BEFORE THE AUTHORITY;  THAT IS, WHETHER THE
 EXISTING UNIT SHOULD BE CLARIFIED TO INCLUDE LA EMPLOYEES, WITH
 APPOINTMENTS LIMITED TO 6 MONTHS, BUT WHO HAVE WORKED LESS THAN 6
 MONTHS.
 
    THE ACTIVITY CONTENDS, CONTRARY TO THE PETITIONER, THAT THE LA
 EMPLOYEES WITH LESS THAN 6 MONTHS OF EMPLOYMENT BE EXCLUDED BECAUSE THEY
 DO NOT SHARE A COMMUNITY OF INTEREST WITH THE REST OF THE BARGAINING
 UNIT.  /3/
 
    THE RECORD REVEALS THAT THE FACILITY HEREIN EMPLOYS THE LA EMPLOYEES
 ON A PEAK PRODUCTION BASIS ONLY FROM ABOUT MID-MARCH TO EARLY OCTOBER.
 THIS PERIOD CORRESPONDS TO THE ACTIVITY'S MISSION, WHICH IS TO FURNISH,
 WHETHER BY PRODUCTION OR CONTRACT, STERILE PINK BOLLWORM MOTHS FOR USE
 IN A PROGRAM IN THE SAN JOACHIM VALLEY IN CALIFORNIA.  THIS PROGRAM IS A
 PREVENTIVE MEASURE TO KEEP THE PINK BOLLWORM, WHICH IS DESTRUCTIVE TO
 CROPS, FROM BECOMING ESTABLISHED IN THE SAN JOACHIM VALLEY.
 
    THE LA EMPLOYEES, UNLIKE THE PERMANENT CAREER OR CAREER CONDITIONAL
 EMPLOYEES AT THE FACILITY, ARE INTERMITTENT AND TEMPORARY EMPLOYEES
 HIRED UNDER AN EXCEPTED APPOINTMENT AUTHORITY FOR A TERM OF 6 MONTHS,
 BUT WHO HAVE NO GUARANTEE THAT THEY WILL WORK 6 MONTHS.  THE
 ABBREVIATION LA IS DERIVED FROM THE LETTER OF AUTHORIZATION WHICH
 PERMITS THE HIRING OF THOSE EMPLOYEES.  THIS AUTHORIZATION PERMITS THE
 HIRING OF SUCH EMPLOYEES BY THE ACTIVITY'S DIRECTOR WITHOUT REGARD TO
 CUSTOMARY OFFICE OF PERSONNEL MANAGEMENT (OPM) PROCEDURES REQUIRED FOR
 PERMANENT EMPLOYEES.  LA EMPLOYEES ARE INFORMED AT THE TIME OF HIRE THAT
 SUCH APPOINTMENT IS ONLY FOR 6 MONTHS OR LESS, WITHOUT GUARANTEE OF
 EMPLOYMENT BEYOND THAT TIME.  THEY ARE NOT SUBJECT TO MERIT PROMOTION
 PROCEDURES OR COVERED BY THE FEDERAL RETIREMENT PROGRAM.  UNLIKE THE
 PERMANENT CAREER OR CAREER CONDITIONAL EMPLOYEES AT THE FACILITY, LA
 EMPLOYEES DO NOT RECEIVE SUCH BENEFITS AS NIGHT PAY DIFFERENTIAL, SUNDAY
 PAY, HOLIDAY PAY (THEY ONLY RECEIVE STRAIGHT TIME FOR HOURS ACTUALLY
 WORKED), FEDERAL RETIREMENT, FEDERAL HEALTH INSURANCE BENEFITS, LIFE
 INSURANCE, SICK LEAVE, AND ANNUAL LEAVE ACCRUAL.  LA EMPLOYEES ALSO DO
 NOT ENJOY COMPETITIVE STATUS WHILE ON AN LA APPOINTMENT.
 
    THE EXISTING UNIT IS COMPOSED OF ABOUT 19 PERMANENT CAREER OR CAREER
 CONDITIONAL EMPLOYEES ALL OF WHOM ARE HIRED IN STRICT ACCORD WITH OPM
 PROCEDURES.  UNLIKE THE LA EMPLOYEES, THESE EMPLOYEES ARE CAREER
 EMPLOYEES RATHER THAN 6-MONTH APPOINTEES, ARE FORMALLY NOTIFIED OF JOB
 VACANCIES THROUGH OFFICIAL ANNOUNCEMENTS RATHER THAN BY WORD OF MOUTH,
 ARE PROTECTED BY MERIT PROMOTION PROCEDURES WHICH DO NOT EXIST FOR LA
 EMPLOYEES, AND HAVE A HIGH DEGREE OF CAREER PERMANENT CAREER OR CAREER
 CONDITIONAL EMPLOYEES, DO NOT WORK ON AN INTERMITTENT BASIS, BUT A
 SCHEDULED 40-HOUR WEEK, AND DO NOT HAVE THEIR WORK HOURS INCREASED OR
 DECREASED ON WORK LOAD REQUIREMENTS.
 
    BECAUSE OF THE SEASONAL WORK OF THE ACTIVITY, THE LA EMPLOYEES ARE
 ONLY NEEDED FOR THE PEAK SEASON IN WHICH THEY ARE INVOLVED IN THE
 UNSKILLED WORK OF PRODUCING THE MOTHS.  UNLIKE PERMANENT EMPLOYEES, LA
 EMPLOYEES ARE FREQUENTLY SHIFTED AROUND TO WORK IN MANY WIDE-SPREAD
 AREAS BECAUSE THEY ARE REQUIRED TO FILL IN UPON THE OCCASION OF ILLNESS
 OR EMERGENCIES OF OTHER EMPLOYEES AND WORK UNDER CONSTANTLY CHANGING
 SUPERVISORS.  DURING THE PEAK SEASON, THE WORK FORCE SOMETIMES EXPANDS
 TO ABOUT 65 BUT WHEN SUCH SEASON TERMINATES, RETURNS TO THE NORMAL
 COMPLEMENT OF ABOUT 19 EMPLOYEES.  EXTENSIONS BEYOND THE ORIGINAL
 APPOINTMENTS FOR LA EMPLOYEES ARE ONLY GRANTED OCCASIONALLY.
 
    THUS, WHILE GENERAL DAY-TO-DAY WORKING CONDITIONS MAY BE SIMILAR FOR
 ALL EMPLOYEES OF THE ACTIVITY, THE LA EMPLOYEES DO NOT HAVE
 APPOINTMENTS, BENEFITS, OR WORK SCHEDULES IN COMMON WITH THE PERMANENT
 EMPLOYEES.  ACCORDINGLY, BASED ON THESE FACTS AND BECAUSE THESE
 EMPLOYEES WERE HIRED FOR A SPECIFIC PERIOD OF TIME AND HAVE NO
 REASONABLE EXPECTANCY OF CONTINUED EMPLOYMENT BEYOND THAT PERIOD, THE
 AUTHORITY FINDS THAT THEY DO NOT SHARE A COMMUNITY OF INTEREST WITH THE
 OTHER EMPLOYEES IN THE BARGAINING UNIT.  SEE FEDERAL MEDIATION AND
 CONCILIATION SERVICE, 5 FLRA NO. 4(1981).
 
    ACCORDINGLY, THE AUTHORITY FINDS, IN THE CIRCUMSTANCES OF THIS CASE,
 THAT LA EMPLOYEES WHO HAVE APPOINTMENTS LIMITED TO 6 MONTHS, BUT WHO
 HAVE WORKED LESS THAN 6 MONTHS, ARE EXCLUDED FROM THE CERTIFIED
 BARGAINING UNIT.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE PETITION FOR CLARIFICATION OF THE UNIT
 FOR WHICH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 376,
 INDEPENDENT, WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE ON JUNE 10,
 1971, BE AND HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON D.C., JULY 15, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED BELOW:
 
    MR. ALAN SMITH
 
    LABOR RELATIONS SPECIALIST
 
    U.S. DEPARTMENT OF AGRICULTURE
 
    ANIMAL HEALTH PLANT INSPECTION SERVICE
 
    HUMAN RESOURCE DIVISION
 
    ROOM 225, FEDERAL BUILDING
 
    HYATTSVILLE, MARYLAND 20782
 
    MS. ELAYNE TEMPEL, NATIONAL REPRESENTATIVE
 
    NATIONAL FEDERATION OF FEDERAL EMPLOYEES
 
    C/O GARY HALL, STEWARD, LOCAL 376
 
    3631 EAST OAK, APT. 2
 
    PHOENIX, ARIZONA 85008
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ ON JUNE 10, 1971, NFFE WAS CERTIFIED AS THE EXCLUSIVE
 REPRESENTATIVE OF:
 
    ALL NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES INCLUDING TEMPORARY
 EMPLOYEES WITH
 
    APPOINTMENTS OF ONE YEAR OR MORE EMPLOYED AT THE PINK BOLLWORM
 REARING FACILITY, PHOENIX,
 
    ARIZONA, EXCLUDING SUPERVISORS, PROFESSIONALS, MANAGERS, AND PERSONS
 PERFORMING PERSONNEL WORK
 
    EXCEPT IN A PURELY CLERICAL CAPACITY.
 
    /2/ ALTHOUGH NOT IN ISSUE HEREIN, THE PARTIES STIPULATED THAT THE
 EMPLOYEES WHO HAVE BEEN HIRED WITH THE SAME TYPE OF APPOINTMENTS, BUT
 WHO HAVE IN FACT WORKED FOR 6 MONTHS OR MORE, SHOULD BE INCLUDED IN ANY
 UNIT FOUND APPROPRIATE.  MOREOVER, THE RECORD DISCLOSES, THAT ALTHOUGH
 THE ORIGINALLY CERTIFIED UNIT INCLUDED TEMPORARY EMPLOYEES WITH
 APPOINTMENTS OF 1 YEAR OR MORE, SUCH EMPLOYEES HAVE NOT BEEN EMPLOYED BY
 THE ACTIVITY FOR SEVERAL YEARS.
 
    /3/ SECTION 7112 OF THE STATUTE STATES:
 
    (A)(1) THE AUTHORITY SHALL DETERMINE THE APPROPRIATENESS OF ANY UNIT.
  THE AUTHORITY SHALL
 
    DETERMINE IN EACH CASE WHETHER, IN ORDER TO ENSURE EMPLOYEES THE
 FULLEST FREEDOM IN EXERCISING
 
    THE RIGHTS GUARANTEED UNDER THIS CHAPTER, THE APPROPRIATE UNIT SHOULD
 BE ESTABLISHED ON AN
 
    AGENCY, PLANT, INSTALLATION, FUNCTIONAL, OR OTHER BASIS AND 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. . . .