15:0247(47)CU - Federal Trade Commission and AFGE Local 2211 -- 1984 FLRAdec RP
[ v15 p247 ]
The decision of the Authority follows:
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.