40:0111(14)CU - - Air Force, Langley AFB, Virginia and NAGE Local R4-26 - - 1991 FLRAdec RP - - v40 p111
[ v40 p111 ]
The decision of the Authority follows:
40 FLRA No. 14
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for review filed by the Petitioner (Union) under section 2422.17(a) of the Authority's Rules and Regulations. The Union seeks review of the Regional Director's (RD) Decision and Order on Petition for Clarification of Unit (CU). The RD dismissed the CU petition. The Activity filed an opposition to the Union's application for review.
For the following reasons, we deny the Union's application for review.
Since September 11, 1973, the Union has been certified as the exclusive representative of certain non-appropriated fund (NAF) employees at the Activity. On January 15, 1980, in Case No. 3-AC-4, the certified unit was amended as follows:
INCLUDED: All non-supervisory regular full-time and regular part-time nonappropriated fund employees serviced by the Langley Air Force Base Central Civilian Personnel Office, including off-duty military occupying these positions.
EXCLUDED: Temporary full-time and temporary part-time employees, intermittent other part-time, and intermittent on call-employees, nonappropriated fund employees of the Army and Air Force Exchange and Motion Picture Service, employees engaged in Federal personnel work in other than a purely clerical capacity, professionals, management officials, and supervisors and guards as defined in Section 7103 of Title VII, Public Law 95-454.
RD's decision at 2.
On August 6, 1989, the Activity implemented revised Air Force Regulation (AFR) 40-7 that established the "variable schedule" (VS) category of employees and abolished the temporary part-time and intermittent employee categories. By its petition, filed on March 5, 1990, the Union sought to clarify the existing bargaining unit to include the VS employees. The Union contended that the VS employees have a reasonable expectancy of future employment, asserting in this regard that VS employees have been used to replace part-time employees who are part of the bargaining unit. It further contended that VS employees have a community of interest with unit employees.
The Activity opposed the inclusion of VS employees in the unit, contending that they do not share a community of interest with unit employees.
III. RD's Decision
The RD made the following factual findings from the evidence presented: (1) the excluded categories of temporary full-time (TFT) and temporary part-time (TPT) employees were guaranteed 35-40 hours per week and 20-35 hours per week, respectively, for no more than 12 months and the intermittent employees were essentially not guaranteed any hours of work per week and were limited to working less than 20 hours per workweek; (2) the unrevised AFR 40-7 provided that on occasion, it may be necessary to request an intermittent employee to work extra hours; (3) as the result of the revised AFR 40-7, the TPT and intermittent employees were converted to VS employees, who are employed less than 35 hours a week and have hours of work and workdays subject to frequent change without a change in employment category; (4) VS employees work at the same location, perform the same work, share identical supervision and similar working conditions as unit employees although they are not eligible for sick and annual leave, retirement benefits and health and life insurance; (5) VS employees are not guaranteed any hours of work per week and they do not have a regular work schedule unless they are called to fill in for a regular employee on planned leave; and (6) at the time of the hearing, of the 594 NAF employees employed by the Activity, 300 were regular employees, 287 were VS employees and seven were temporary full-time employees.
The RD further found that the record showed that since the conversion to the VS employment category, the job duties and working conditions of the converted VS employees have not changed. He found that the main difference under the revised AFR 40-7 is that while the VS employees are not guaranteed any hours of work per week, as were former TPT and some intermittent employees, they are now permitted to work up to 35 hours per week. Also, VS employees do not have set work schedules, as did TPT and some intermittent employees. Thus, the RD found that the VS employees may experience more frequent changes in their work hours than they did prior to their conversion. He also found that the record evidence failed to establish that VS employees work significantly more or fewer hours than those worked by the antecedent categories of TPT and intermittent employees who were excluded from the unit. Further, the RD found that although about ten VS employees who worked a continuing regular schedule were converted to regular positions in the unit, such a conversion was not required under the revised AFR 40-7 as it had been under the earlier version of AFR 40-7.
The RD noted that "[w]hile there are many factors present which would support a finding that VS employees should be included in the existing unit, the Authority has held that in the absence of a demonstration that the affected employees have undergone meaningful changes in their job duties, a clarification of unit petition is not appropriate for including employees who have been specifically excluded from the unit." Id. at 5. For support, the RD cited Authority decisions in National Guard Bureau, Massachusetts Air National Guard, Barnes Municipal Airport, 4 FLRA 83 (1980), and Federal Trade Commission, 35 FLRA 576 (1990) (FTC).
The RD concluded that the evidence failed to establish a "meaningful change" sufficient to justify the inclusion in the existing bargaining unit of the former TPT and intermittent employees who had been converted to VS employees. He found that while their employment category has changed, the record did not indicate that any significant aspect of these employees' job duties, functions or their entitlement to fringe benefits has changed. Further, the RD found that the record failed to establish that the VS employees have worked significantly more hours per pay period than the antecedent categories of employees who had been excluded from the unit since the original certification in 1973.
Under those circumstances, the RD found that because "the former TPT and intermittent employees have been historically excluded from the unit and the evidence failed to establish that the affected employees have undergone meaningful changes in their employment status since their conversion to the VS employment category, . . . inclusion of the VS employees in the existing unit is not warranted through a unit clarification proceeding." RD's decision at 6. Accordingly, the RD concluded that the VS employees should continue to be excluded from the certified unit. The RD noted that in FTC the Authority held, consistent with private-sector precedent, that where a group of employees have been excluded from a union's original certification by virtue of a pre-election agreement, the proper procedure to determine the question of representation is an election pursuant to a representation (RO) petition.
IV. Positions of the Parties
A. The Union
In its application for review, the Union contends that the RD erred in finding that no "meaningful change" in the employee category had occurred that would result in VS employees being included in the bargaining unit. It argues that the employees in the new VS category have an expectancy of continual employment and may be scheduled to work 34 hours a week just as regular part-time employees in the bargaining unit. The Union further argues that VS employees' entitlement to fringe benefits such as leave, health insurance and retirement would be subject to bargaining like other non-appropriated fund employees in the bargaining unit.
The Union further contends that VS employees clearly share a community of interest with unit employees and should be included in the unit. In support of its position, the Union lists several facts that it claims were established during the hearing, including: (1) VS employees do the same work as unit employees, alongside unit employees, under the same supervision, and with the same pay; (2) both regularly scheduled part-time and VS employees could work up to 34 hours per week; (3) VS employees are regularly scheduled like regular part-time and full-time employees in the unit; (4) AFR 40-7 permits the Activity to schedule VS employees to work on a recurring basis at a level which previously would have required their conversion to regular employees; (5) VS employees can be, have been, and are encouraged to replace regular full-time and part-time positions which become vacant; and (6) VS employees are hired on a permanent basis. Accordingly, the Union contends the evidence justifies the inclusion of VS employees in the bargaining unit.
B. The Activity
The Activity concurs with the RD's decision. The Activity contends that the Union erroneously concluded that VS employees are now working regular part-time hours and therefore, by inference, they should be included in the bargaining unit with regular employees. It argues that the Union's conclusion is not borne out by the evidence presented at the hearing. The Activity further contends that the Union has also erroneously alleged that VS employees are scheduled just as regular part-time and full-time employees of the unit.
In this regard, the Activity argues that the evidence presented at the hearing showed that regular employees are guaranteed 20-40 hours per week under AFR 40-7, are regularly scheduled to work those hours, and are entitled to two weeks' notice of any change in those schedules. The evidence also showed, according to the Activity, that VS employees have no set schedules, no two-week notice of changes, and may not work at all for a period of weeks. Further, it notes, the RD specifically found that the VS employees are not guaranteed any hours of work per week. The Activity contends that the Union is trying to convert the "possibility" of VS employees working up to 34 hours per week into an actual practice, but that the evidence indicates the contrary. Opposition at 4.
The Activity also notes that the RD found insufficient evidence in the record to establish that a "meaningful change" had occurred in the relevant employment categories. In this regard, it points out that the RD found that there had been no significant changes in the employees' job duties or functions, in their lack of entitlement to certain fringe benefits, or in their working hours. Accordingly, the Activity asserts that the Union has failed to meet any of the criteria for granting an application for review set out in section 2422.17(c) of the Authority's Rules and Regulations and has done nothing more than express disagreement with the RD's findings.
V. Analysis and Conclusions
Upon careful consideration of the Union's application for review, we conclude that compelling reasons do not exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting review of the RD's decision. The Union's contentions constitute mere disagreement with the RD's factual findings and conclusions that are based on record evidence developed at a hearing, and his application of Authority precedent to those facts.
In this case the RD, applying Authority precedent in FTC, found that the evidence presented failed to establish that a meaningful change had occurred in the duties and functions of the former TPT and intermittent employees, who had been converted to the VS employment category, to justify their inclusion in the existing bargaining unit through a unit clarification proceeding. The RD found that the while their employment category had changed, the record did not indicate that any significant aspect of these employees' job duties or functions had changed. We agree with these findings. With regard to the RD's finding that there was a change as to the employees' ability to convert to regular positions, the record discloses that at least ten VS employees were converted to regular positions despite the now discretionary nature of such conversions under the revised AFR 40-7. We find that, in these circumstances, this also does not constitute a meaningful change so as to require the inclusion of the VS employees in the unit.
We find that the Union's arguments and the list of "facts" included in its application for review either relate to the factors used in determining whether the employees share a clear community of interest with employees in the bargaining unit, or are the Union's version of the facts, which disagree with the RD's factual findings and conclusion that there was no meaningful change in the employees' duties or functions due to their conversion to the VS employment category. In our view, the Union expresses mere disagreement with the RD's factual findings. Such contentions do not provide a basis for granting review of the RD's decision. See Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 39 FLRA No. 79 (1991); U.S. Small Business Administration, 34 FLRA 392 (1990); Department of the Army, Headquarters, Presidio of San Francisco, Directorate of Engineering and Housing, San Francisco, California, 33 FLRA 478 (1988).
It should be noted that the RD's decision does not preclude the inclusion of the VS employees in the unit at some point in the future. As the RD noted, the proper procedure to determine the question of representation of employees who have been specifically excluded from a unit and who have not had meaningful changes in their duties since that exclusion is through an RO petition. In other words, the Union may file an RO petition in which it may seek to represent the VS employees. Should such a petition be filed