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32 FLRA No. 74

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

U.S. DEPARTMENT OF THE TREASURY
UNITED STATES MINT
Activity

and 

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union/Petitioner

Case No. 3-AC-70001

ORDER DENYING APPLICATION FOR REVIEW

I. Statement of the Case

On April 29, 1988, the Activity filed a timely application for review under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Regional Director's Decision and Order which amended the unit description concerning temporary employees. The Union did not file an opposition.

For the reasons discussed below, we deny the application for review.

II. Regional Director's Decision

Since 1980, the Union has been certified as the exclusive representative of the following consolidated unit:

All professional and nonprofessional employees of the Department of the Treasury, Bureau of the Mint, including special police and guards, excluding special police and guards assigned to the Philadelphia Mint, management officials, employees engaged in Federal personnel work in other than a purely clerical capacity, confidential employees, temporary employees, and supervisors as defined in the Order.

Regional Director's Decision at 2.

By the Amendment of Certification (AC) petition, the Union requested that the unit description be amended to explicitly exclude temporary employees who are employed for up to 700 hours and have no reasonable expectation of reappointment.

The Activity opposed the AC petition on the basis that all temporary employees (not merely those employed up to 700 hours with no reasonable expectation of reappointment) historically have been excluded from the bargaining unit. Consequently, the Activity asserted that the petition raised a question concerning representation with respect to temporary employees.

The Regional Director concluded that the existing certification could be amended to exclude those temporary employees who are appointed for up to 700 hours and have no reasonable expectation of reappointment. He found that the remaining temporary employees share a clear and identifiable community of interest with other employees at the Activity and that their inclusion in the unit will promote effective dealings and efficiency of operations at the Activity.

The Regional Director rejected the Activity's argument that all temporary employees have been excluded from the unit since 1981. Accordingly, he found that the petition did not raise a question concerning representation and denied the Activity's Motion to Dismiss Petition on this basis.

III. Application for Review

The Activity bases its application for review on two grounds. First, it contends that a substantial question of law or policy is raised because of (1) the absence of or (2) a departure from Authority precedent. The Activity argues--without citing any Authority precedent--that the Regional Director departed from Authority precedent by accreting employees into a bargaining unit in the context of an AC petition. The Activity asserts that an AC petition traditionally has been used to make minor changes to the certification, such as changes in the agency or union name. The Activity maintains that the Union was required to file a petition to clarify its unit (a CU petition) in order to exclude certain temporary employees. The Activity also argues that temporary employees have not been part of the bargaining unit for several years, and therefore they should have a right to vote on being represented by the Union.

Second, the Activity contends that extraordinary circumstances warrant reconsideration of an Authority policy. The Activity states that even if the Regional Director properly considered the Union's AC petition as if it were a CU petition, the temporary employees who were not excluded from the unit by the Regional Director are entitled to vote on whether they desire to be represented by the Union. It argues that since 1973, the parties have been confused about the definition of temporary employees and were unaware of the definition concerning temporary employees established by the Assistant Secretary of Labor for Labor-Management Relations in Department of the Treasury, Bureau of the Mint, 3 A/SLMR 186, 188 n.3 (1973). The Activity argues that such confusion meant that temporary employees were not consistently considered to be unit members. In its view, this inconsistent treatment created extraordinary circumstances which warrant giving the temporary employees the opportunity to vote on whether they want to be represented by the Union.

IV. Analysis and Conclusion

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) for granting the application for review. We find that no substantial question of law or policy is raised by reason of a departure from Authority precedent. The Activity contends without setting forth any supporting precedent that the Regional Director's clarification of bargaining unit inclusions or exclusions in an AC petition is contrary to Authority precedent. We reject the contention for the following reasons.

In filing the AC petition, the Union sought to amend the unit description to exclude temporary employees who are employed up to 700 hours and have no reasonable expectation of reappointment. RD Decision at 2. An AC petition is not the appropriate vehicle to obtain the result sought by the Union. An AC petition is intended to accommodate a nominal or technical change of an activity or exclusive representative. Department of Defense, Office of Dependents Education, 15 FLRA 493, 496 (1984) and Headquarters, U.S. Army Aviation Systems Command, St. Louis, Missouri, 2 A/SLMR 278, 280 (1972). Rather a CU petition is the appropriate vehicle for resolving the bargaining unit status of temporary employees. A CU petition is intended to clarify, consistent with the parties' intent, the unit inclusions or exclusions after the basic question of representation has been resolved. Headquarters, U.S. Army Aviation Systems Command, 2 A/SLMR at 280.

However, although the Union filed an inappropriate petition, the record reflects that the Union was seeking to clarify the bargaining unit status of temporary employees. In our view, the purposes and policies of the Statute would not be promoted by dismissing the petition at this post-hearing stage on the sole basis that the Petitioner filed the wrong petition, particularly in view of the Union's clear intent. Accordingly, we shall consider the AC petition in this case as if it had been filed as a CU petition.

Our decision to consider the AC petition as if it was filed as a CU petition is consistent with a decision under Executive Order 11491 by the Assistant Secretary of Labor for Labor-Management Relations in Headquarters, U.S. Army Aviation Systems Command, 2 A/SLMR at 280 (1972). In that case, the Assistant Secretary found that the filing of a CU petition was not appropriate to raise a question concerning representation. Nevertheless, the Assistant Secretary treated the case as if an RA petition had been filed and concluded that it would be improper to dismiss the petition at the post-hearing stage on a technical basis in view of the activity's clear intent.^(*) That decision remains in full force and effect under section 7135(b) of the Statute because it has not been revised or superseded by decisions issued pursuant to the Statute. See Florida National Guard, St. Augustine, Florida, 25 FLRA 728, 729 (1987). We find no reason to revise or supersede that decision. Moreover, the processing of AC and CU petitions under the Authority's regulations are the same. See Sections 2422.2(c) and 2422.4(g).

We also find that no substantial question of law or policy is raised by reason of extraordinary circumstances warranting reconsideration of Authority policy. The Activity contends that the circumstances of this case warrant an election for temporary employees. Section 7111(b)(2) of the Statute provides that the Authority shall conduct or supervise an election if it finds that a question of representation exists. The Regional Director determined that there was no question of representation in the instant case because he found that historically all temporary employees have not been excluded from the existing unit.

Regional Director's Decision at 6-7, 7 n.11. Although, the Activity disagrees with the Regional Director's findings, the Activity has not shown that the findings are clearly erroneous or have prejudicially affected the rights of any party.

ORDER

The application for review of the Regional Director's Decision and Order on Petition for Amendment of Certification is denied.

Issued, Washington, D.C.,

___________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ An RA petition is a petition for an election filed by an agency or activity to determine if a labor organization should cease to be the exclusive representative. See section 2422.2(b) of the Authority's Regulations.

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