15:0247(47)CU - Federal Trade Commission and AFGE Local 2211 -- 1984 FLRAdec RP

 15 FLRA No. 47
 
 FEDERAL TRADE COMMISSION
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2211, AFL-CIO
 Labor Organization/Petitioner
 
                                            Case No. 3-CU-99
 
                            DECISION AND ORDER
 
    Upon a petition duly filed with the Authority under section
 7111(b)(2) of the Federal Service Labor-Management Relations Statute
 (the Statute), a hearing was held before a hearing officer of the
 Authority.  The hearing officer's rulings made at the hearing are free
 from prejudicial error and are hereby affirmed.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, an amicus curiae brief submitted by the Office of
 Personnel Management (OPM) /1/ and a reply thereto by the Petitioner
 (AFGE), /2/ the Authority finds:
 
    On December 17, 1980, AFGE filed a petition in Federal Trade
 Commission, Case No. 3-RO-91, /3/ seeking an election among the
 Activity's nonprofessional and technical employees.  The parties were in
 dispute as to the voting eligibility of approximately 143 incumbents of
 positions that the Activity argued should be excluded from the unit
 sought.  During the ensuing four months, with the close guidance of the
 Authority's Regional Office, the parties met on several occasions.  The
 list of positions in dispute was gradually narrowed down, and eventually
 the parties, with the approval of the Regional Director, agreed as to
 the inclusion or exclusion of all positions at issue, based upon
 criteria of the Statute.  At the election, the ballots of 21 employees
 were challenged, some of whom occupied positions that had originally
 been in dispute.  All the challenges were resolved to the satisfaction
 of the Regional Director, and AFGE was certified on June 17, 1981, as
 the exclusive bargaining representative for a unit of "all
 nonprofessional and technical full and part-time employees of the
 Federal Trade Commission located in the Washington, D.C. area."
 
    Thereafter, on July 1, 1981, AFGE filed the instant petition, seeking
 to clarify its established unit by adding the incumbents of
 approximately 123 positions.  /4/ A hearing on the matter was held, and
 the case was transferred to the Authority for decision.  Of the 123
 positions now sought to be added by AFGE, AFGE had agreed prior to the
 election that all were to be excluded from the unit, approximately 44 as
 being supervisory and/or managerial, and the remainder as being
 confidential, and had similarly agreed upon the resolution of all
 challenged ballots.  AFGE contends that, while the Activity takes the
 position that the parties had agreed to "permanently exclude" the
 positions here in question, this was not the Union's intent.  The
 Activity contends, however, that the parties, with the assistance and
 approval of the Regional Director, had agreed on an eligibility list
 based on a factual analysis of the duties performed by the incumbent of
 each disputed position, and argues that AFGE should therefore be
 precluded from filing a petition seeking to add such incumbents to the
 certified bargaining unit.  OPM, in its amicus curiae brief, urges that
 AFGE's conduct is so reprehensible that the Authority should not only
 dismiss the petition, but should also revoke AFGE's certification.
 
    The Authority finds that the petition should be dismissed.  In our
 view, a Clarification of Unit (CU) petition is not an appropriate
 vehicle for in effect overturning a pre-election agreement of the nature
 involved herein.  That is, a CU petition filed after completion of the
 certification process will not ordinarily be permitted to overturn the
 results of voluntary pre-election agreements entered into by the parties
 with the approval of the Regional Director, absent at the very least, a
 showing that the duties or functions of established positions or job
 classifications covered in such agreements have undergone meaningful
 change after the unit was certified.  On the contrary, the parties here
 agreed, after lengthy and careful deliberations, and with the assistance
 and approval of the Regional Director, that the particular duties and
 functions of the existing positions at issue were either confidential or
 supervisory/managerial in nature, based upon criteria of the Statute,
 and therefore should be excluded.  Moreover, all challenged ballots were
 voluntarily resolved before AFGE was certified.  There has been no
 showing that the duties and functions of the positions at issue have
 changed in the time between AFGE's certification as exclusive
 representative and its filing of the CU petition.
 
    Accordingly, in the circumstances set forth above, the Authority
 finds that it would not effectuate the purposes and policies of the
 Statute to review the status of the positions in question, and therefore
 shall dismiss the instant petition.  /5/ See e.g., National Guard
 Bureau, Massachusetts Air National Guard, Barnes Municipal Airport, 4
 FLRA 83 (1980).
 
                                   ORDER
 
    IT IS ORDERED that the petition in Case No. 3-CU-99 be, and it hereby
 is, dismissed.
 
    Issued, Washington, D.C., July 10, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier, III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ OPM was permitted to participate as an amicus curiae by the
 Authority pursuant to section 2429.9 of the Authority's Rules and
 Regulations.
 
 
    /2/ The Activity's motion to strike AFGE's reply is denied, as the
 reply was filed with the specific permission of the Authority by letter
 dated July 27, 1982.
 
 
    /3/ The Authority takes official notice of the facts developed in
 Case No. 3-RO-91, pursuant to section 2429.5 of the Authority's Rules
 and Regulations.
 
 
    /4/ While the parties refer to the number as 127, the actual lists
 submitted to the hearing officer show 123 positions in dispute.
 
 
    /5/ Assuming without deciding that the Authority has discretion to
 revoke a labor organization's certification for reasons other than those
 specified in section 7120 of the Statute, the Authority concludes that
 such action would be inappropriate in the circumstances of this case and
 therefore denies OPM's request that AFGE's certification be revoked
 herein.