[ v16 p429 ]
The decision of the Authority follows:
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.