16:0429(67)RO - Library of Congress and Fraternal Order of Police, Library of Congress Police Force Labor Committee and AFSCME Local 2477 -- 1984 FLRAdec RP

 16 FLRA No. 67
 
 LIBRARY OF CONGRESS
 Agency
 
 and
 
 FRATERNAL ORDER OF POLICE
 LIBRARY OF CONGRESS POLICE
 FORCE LABOR COMMITTEE
 Petitioner
 
 and
 
 AMERICAN FEDERATION OF STATE
 COUNTY AND MUNICIPAL EMPLOYEES
 LOCAL, 2477, AFL-CIO
 Intervenor
 
                                            Case No. 3-RO-40001
 
            DECISION GRANTING APPLICATION FOR REVIEW AND ORDER
 
    On September 14, 1984, the American Federation of State, County and
 Municipal Employees, Local 2477, AFL-CIO (Intervenor) filed a timely
 application for review, pursuant to section 2422.17(a) of the
 Authority's Rules and Regulations, seeking to set aside the Acting
 Regional Director's Decision and Direction of Election in the
 above-named case.  In support thereof, the Intervenor contends that
 compelling reasons exist for granting its application within the meaning
 of section 2422.17(c) of the Authority's Rules and Regulations.  /1/ The
 Fraternal Order of Police, Library of Congress Police Force Labor
 Committee (Petitioner) filed an opposition to the application for
 review.
 
    Upon consideration of the Intervenor's application for review,
 including the arguments in support thereof, it appears to the Authority
 that a compelling reason exists for granting the application for review.
  More specifically, it appears that a substantial question of law or
 policy is raised because of a departure from Authority precedent.
 Accordingly, pursuant to section 2422.17(g) of the Authority's Rules and
 Regulations, the application for review is granted and the Authority
 will consider herein the issue raised by the application for review.
 
    The Petitioner seeks to represent a unit of all full and regular
 part-time uniformed special police officers (SPOs) of the Library of
 Congress Police Force below the rank of sergeant.  Since 1976, these
 employees have been part of a unit of nonprofessional employees of the
 Library of Congress exclusively represented by the Intervenor.  The
 Intervenor contends that the unit sought by the Petitioner is
 inappropriate and would result in an unnecessary fragmentation of the
 existing unit.
 
    In his Decision and Direction of Election, the Acting Regional
 Director concluded that both the broader established Activity-wide unit
 represented by the Intervenor and the smaller petitioned for unit of
 SPOs are appropriate.  In finding the broader established unit including
 the SPOs to be appropriate, the Acting Regional Director noted
 particularly:  The SPOs share common agency personnel regulations and a
 community of interest with other unit employees;  the SPOs are included
 in an agency-wide competitive area for merit promotions and
 reductions-in-force;  and they have been part of a long-established
 bargaining unit.  Further, he found that the SPOs have been officers and
 members of the Intervenor's negotiating team and, as a group, have been
 fairly represented pursuant to a collective bargaining agreement as well
 as in their grievances filed under the negotiated grievance procedure
 contained therein.  The Acting Regional Director further found, based
 upon certain evidence presented and reliance upon the rationale
 contained in Department of the Navy, Naval Station, Norfolk, Virginia,
 14 FLRA No. 93 (1984) and Panama Canal Commission, 5 FLRA 104 (1981),
 that the SPOs may also constitute a separate appropriate unit.  In this
 regard, the Acting Regional Director noted that the SPOs are subject to
 certain working conditions different from other bargaining unit
 employees, such as:  24 hour shift schedules;  uniforms and firearms
 requirements;  special training;  and different reduction-in-force and
 arbitration procedures for SPOs than those contained in the overall
 unit's "master" agreement.  Additionally, the Acting Regional Director
 concluded that, by virtue of a separate collective bargaining agreement
 for SPOs, the latter have maintained a separate identity and that the
 Activity and Intervenor have treated them as a group separate and
 distinct from the other bargaining unit employees.  Accordingly, the
 Acting Regional Director ordered an election to afford the petitioned
 for employees the opportunity to choose whether they wish to continue
 being part of the existing nonprofessional unit represented by the
 Intervenor, to be represented by the Petitioner in the smaller SPOs
 unit, or not to be represented at all.
 
    Based on established precedent, and the particular circumstances of
 this case, the Authority disagrees, in part, with the Acting Regional
 Director's Decision and Direction of Election.  The petition herein is
 seeking to carve out or sever from the established Activity-wide unit
 represented by the Intervenor a much smaller unit of SPOs.  In Office of
 Hearing and Appeals, Social Security Administration, Case No.
 3-RO-20005, FLRA Report of Case Decisions, No. 268 (Nov. 9, 1984);  U.S.
 Coast Guard Air Station Cape Cod, Otis Air Force Base, Pocasset,
 Massachusetts, 10 FLRA 543 (1982);  and Department of the Navy, Naval
 Air Station, Moffett Field, California, 8 FLRA 10 )1982), in which the
 Authority addressed similar severance issues under the Statute, it was
 concluded that there existed no unusual circumstances, such as the
 failure of the incumbent exclusive representative to fairly represent
 the employees sought, which would give rise to a question of
 representation concerning the petitioned for unit and justify severance
 from the existing larger units which continued to remain appropriate.
 In view of the above determination, the Authority found it unnecessary
 to and did not consider the appropriateness of the petitioned for
 smaller units.  That is, where, as here, an established bargaining unit
 continues to be appropriate and no unusual circumstances are presented,
 a petition seeking to remove certain employees from the overall unit and
 to separately represent them must be dismissed, in the interest of
 reducing the potential for unit fragmentation and thereby promoting
 effective dealings and efficiency of agency operations.  See section
 7112(a)(1) of the Federal Service Labor-Management Relations Statute.
 
    The case decisions cited by the Acting Regional Director in support
 of his Decision are inapposite since they involve representation
 petitions concerning unrepresented employees, rather than the requested
 severance of a group of employees from an established exclusively
 represented unit.  In Panama Canal Commission, the Authority, on the
 facts presented, found that an unrepresented group of firefighters could
 constitute a separate appropriate unit or properly could be included as
 part of the established Activity-wide unit.  Similarly, in Department of
 the Navy, Naval Station, Norfolk, Virginia, the Authority found that
 unrepresented firefighters and fire prevention employees who had been
 transferred into the Activity from another facility might be included in
 the Activity-wide unit or constitute a separate appropriate unit.
 
    The record establishes that the Activity-wide unit currently
 represented by the Intervenor is appropriate as all of the unit
 employees, including the SPOs, share a community of interest and that
 such unit promotes effective dealings and efficiency of agency
 operations.  Thus, all of the unit employees share a common mission, are
 subject to the same competitive area for merit promotions and
 reductions-in-force, and have been part of a long-established bargaining
 unit.  Furthermore, the record establishes that the SPOs have been fully
 represented in the established unit and have been covered by a
 modification to the "master" collective bargaining agreement pertaining
 specifically to them.  Contrary to the Acting Regional Director, the
 Authority finds that this collective bargaining agreement was not
 intended to separate the SPOs from other unit employees, but rather to
 specifically deal with their unique problems and give the SPOs the best
 possible representation.  In this regard, the Authority notes that this
 agreement was considered by the parties as a modification to the
 "master" agreement /3/ from which it drew 90% of its contents and that
 it was intended to run concurrently with the "master" agreement.
 Moreover, in agreement with the Intervenor, it is concluded that
 effective dealings with, and efficiency of the operations of, the
 Activity will be promoted by avoiding unnecessary fragmentation.
 
    Thus, in finding that the long-established bargaining unit remains
 appropriate and that no unusual circumstances are present to justify the
 severance of the petitioned for employees from the established
 bargaining unit, the Authority concludes that the petitioned for unit
 does not raise a question concerning representation and that no election
 is warranted.  Accordingly, the Authority concludes that the Acting
 Regional Director's Decision and Direction of Election must be set aside
 to the extent inconsistent herewith, and that the instant petition must
 be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the petition in Case No. 3-RO-40001 be, and it
 hereby is, dismissed.  Issued, Washington, D.C., November 13, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 2422.17(c) provides:
 
          (c) The Authority may grant an application for review only
       where it appears that compelling reasons exist therefor.
       Accordingly, an application for review may be granted only upon
       one or more of the following grounds:
 
          (1) That a substantial question of law or policy is raised
       because of (i) the absence of, or (ii) a departure from, Authority
       precedent;
 
          (2) That there are extraordinary circumstances warranting
       reconsideration of an Authority policy;
 
          (3) That the conduct of the hearing held or any ruling made in
       connection with the proceeding has resulted in prejudicial error;
       or
 
          (4) That the Regional Director's decision on a substantial
       factual issue is clearly erroneous and such error prejudicially
       affects the rights of a party.
 
 
    /2/ It is clear from the record that such a request was not initiated
 as a result of an agency reorganization or other administrative action
 which left the status of the petitioned for employees in dispute.
 
 
    /3/ Article I, Section 5 of the collective bargaining agreement
 covering the Special Police states:
 
          This agreement is issued as a modification to the 'master'
       agreement executed by the Parties on June 14, 1978.  Rights and
       obligations incurred and accrued by the Parties under the terms
       and conditions of that Agreement are not altered or modified by
       the terms and conditions of this Agreement, except as provided
       herein.  Subject to the applicability to the Special Police any
       subsequent changes in the terms and conditions of the 'master'
       agreement should be incorporated into this agreement.