34:0021(6)CU - - HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1989 FLRAdec RP - - v34 p21

[ v34 p21 ]
The decision of the Authority follows:

34 FLRA No. 6










(Labor Organization)




December 21, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application filed by the American Federation of Government Employees, Local 1770, AFL-CIO (AFGE, Local 1770) under section 2422.17 of the Authority's Rules and Regulations. AFGE, Local 1770 seeks review of the Regional Director's Decision and Order dismissing the petition for clarification of the bargaining unit filed by the Headquarters, XVIII Airborne Corps and Fort Bragg (Activity/Petitioner). The Activity/Petitioner did not file an opposition to the application.

Inasmuch as the Authority had two vacancies when this application for review was received, Acting Chairman McKee issued an Interim Order on April 17, 1989, directing that consideration of the application be deferred until further notice. The Interim Order preserved the parties' rights under the Statute to Authority consideration of the Regional Director's decision.

For the reasons discussed below, the Authority grants the application for review. We remand the case to the Regional Director for action consistent with this decision.

II. Background and Regional Director's Decision

The Activity/Petitioner filed a petition seeking to clarify whether 21 temporary employees of the U.S. Army Tank Automotive Command (TACOM) were included in the bargaining unit represented by AFGE, Local 1770, which is described below.

Included: All civilian employees, including guards, at Fort Bragg, North Carolina, who are administered by the Civilian Personnel Office and paid from appropriated funds, including employees of the following tenant units: US Army Airborne and Communications - Electronics Board; US Army Medical Department Activities; US Army Institute for Military Assistance; US Army Communications Command Agency - Fort Bragg; Headquarters, US Army First ROTC Region; Troop Support Agency - Commissary; US Army Intelligence and Security Command, General Intelligence Production Detachment - Fort Bragg; and US Army Dental Activity.

Excluded: All professional employees; management officials; supervisors; and employees described in 5 USC 7112(b)(2), (3), (4), (6) and (7).

This unit was described in a certification issued in Case No. 4-RO-20020, dated November 30, 1982.

This unit clarification question arose when an employee grieved his discharge from the temporary TACOM team. Initially, the Activity processed the grievance. When the grievance was not resolved, the Union invoked arbitration. Prior to the arbitration hearing, the Activity asserted that the grievant was not included in the bargaining unit. To resolve the issue of the grievant's bargaining unit status, the Activity filed this petition for clarification of the bargaining unit status of the 21 temporary TACOM employees. The Regional Director received the clarification of unit petition on April 1, 1988.

On October 14, 1988, the arbitrator stayed the arbitration proceedings. The arbitrator stated that he was acting in compliance with U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988) (Small Business Administration) which holds that the Authority, not arbitrators, must resolve the issue of whether particular employees are included in a bargaining unit.

The Regional Director found that TACOM, which is headquartered in Warren, Michigan, established a temporary work group at Fort Bragg to issue high mobility, multipurpose wheeled vehicles to Fort Bragg activities. Temporary employees were hired at Fort Bragg, during April and May 1987 to perform the work, but TACOM retained the manpower space allocations for the 21 temporary positions. By December 1987, when the work was completed, the employees were terminated.

The Regional Director found that the 21 TACOM positions were vacant and no longer existed at Fort Bragg. The Regional Director concluded that she lacked authority to clarify the bargaining unit status of vacant positions because of the Authority's decision in Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52 (1981) (Bureau of the Mint) which held that "[i]n making decisions involving appropriate units, the Authority will not resolve issues involving vacant positions." Id. at 53. Relying on Bureau of the Mint, the Regional Director dismissed the petition for clarification of the bargaining unit.

III. The Application for Review

AFGE, Local 1770, asserts that Small Business Administration requires that the Authority resolve the unit clarification issue raised in this petition. Resolution of this issue is determinative of whether the employee discharged from the TACOM team may proceed to arbitration. If the Authority were to determine that this employee was in the bargaining unit at the time of his