40:1025(90)RO - - Air Force, 842nd Combat Support Group, Grand Forks AFB, ND and AFGE - - 1991 FLRAdec RP - - v40 p1025
[ v40 p1025 ]
The decision of the Authority follows:
40 FLRA No. 90
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 Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Regional Director's Decision and Order Directing Election in a unit consisting of all non-appropriated fund (NAF) employees in the Morale, Welfare, and Recreation and Billeting functions employed at Grand Forks Air Force Base, North Dakota (GFAFB), who have a reasonable expectation of continued employment. The Petitioner did not file an opposition to the application for review.
For the following reasons, we deny the application for review.
II. Background and Regional Director's Decision
The Petitioner was previously certified in Case No. 7-RO-60006 as the representative of a unit including "[a]ll professional and nonprofessional Air Force civilian employees employed by Grand Forks AFB, North Dakota, and/or serviced by the Civilian Personnel Office, Grand Forks AFB, including on-base tenant organizations and Maintenance RIVET MILE project employees." Regional Director's Decision at 2 n.2. The appropriate bargaining unit in Case No. 7-RO-60006 excluded NAF employees.
In a petition which led to the decision before us, the Petitioner sought an election in the following unit:
Included: All non-appropriated fund employees, including MWR, Billeting and those located at Cavalier AFS, ND, employees employed at Grand Forks Air Force Base in Grand Forks, North Dakota.
Excluded: All appropriated fund employees, management officials, supervisors, AAFES and employees described in 5 U.S.C. § 7112(b)(2),(3),(4),(6) and (7).
Id. at 1-2 (footnote omitted). The Regional Director held a hearing on the issues raised by the petition and issued a decision and order directing an election.
In reaching a determination on an appropriate unit, the Regional Director decided that it was appropriate to include variable schedule (VS) employees in a unit with regular part-time (RPT) and regular full-time (RFT) employees.(1) The Activity has not challenged the Regional Director's additional determinations that: (1) it was appropriate to include NAF employees in the Morale, Wellness, and Readiness (MWR) and Billeting functions at GFAFB in the same unit, and (2) it would be inappropriate to place NAF employees at Cavalier AFB in a unit with NAF employees at GFAFB. Accordingly, only the Regional Director's determination to include VS employees in the unit with RPT and RFT employees will be addressed herein.
The Regional Director found that GFAFB, with a population of between 5000 and 6000 military, military dependents, and civilians, is part of the United States Air Force Strategic Air Command. The employees that Petitioner seeks to represent work in two NAF organizations, MWR and Billeting. MWR operates officers' clubs, recreational activities, child care, veterinary services, and a financial management branch. Billeting provides accommodations for permanent and transient military personnel and certain civilians in temporary duty status. At the date of the hearing, the Regional Director found that in MWR and Billeting there were approximately 178 VS positions, 33 RFT positions, and 27 RPT positions for a total of 238 positions, of which approximately 226 were encumbered.
The Regional Director found that "VS employees perform job functions side-by-side with and essentially identical to those functions performed by RPT, RFT and TFT employees." Id. at 9. She also found that a VS can become an RFT or RPT employee "depending on the needs of the particular NAFI . . . ." Id. Unlike RFT and RPT employees, VS employees are not guaranteed any specific number of hours per week, but "they are not supposed to work more than 35 hours per week." Id. The Regional Director found that VS employees are "'permanent' in nature . . . working without a fixed schedule on a day-to-day basis, or at least with minimal advance notice of their schedule." Id. at 14. She noted that although the number of hours worked by VS employees varies "there is no basis to conclude that there is any specific term limitation on their employment." Id. at 13 (footnote omitted). The Regional Director concluded that the VS employees have "a reasonable expectancy of future and continued employment . . . ." Id. at 14.
The Regional Director also found that VS employees do not share the same "adverse action appeal rights, leave rights, or the same benefit package" as RFT and RPT employees. However, she found that "they do share many of the same conditions of employment with those employees." Id. at 12. The Regional Director noted that VS employees:
work side-by-side in the same locations with those in other categories and/or replace these RFT or RPT employees in the performance of the same job duties; they work under common supervision; they are serviced by common NAFI personnel and payroll organizations; they have the same pay scale, depending on grade, based upon the same compensation system; they have shared the same uniqueness from the General Schedule employees at GFAFB, . . . ; their OPFs [official personnel files] are maintained by the same personnel office; they are all eligible for overtime and shift differential pay; they all receive similar types of performance evaluations on an annual basis; they are all eligible for awards under the same regulations; they all can use the internal Agency grievance procedure; and they all can submit suggestions to the Agency suggestion program.
Id. at 12-13.
The Regional Director also found that including VS employees in a bargaining unit would "promote effective dealings between, both employees and their employer, as well as promote the overall efficiency of the Agency operations." Id. at 15. In reaching this conclusion, she rejected the Activity's argument that "allowing VS employees in any bargaining unit would, ipso facto, increase costs due to lack of flexibility in, for example, scheduling, and would therefore jeopardize the continued existence of the NAFI function[.]" Id. at 14. The Regional Director found the Activity's argument was "conjectural and unsupported by the evidence of record." Id.
Noting that the Petitioner "has indicated a willingness to proceed to an election in any unit found appropriate," the Regional Director directed an election in the following unit:
All non-appropriated fund employees of the MWR and Billeting functions employed at Grand Forks AFB, North Dakota who have a reasonable expectation of continued employment, excluding appropriated fund employees, employees employed at Cavalier AFS, North Dakota, management officials, supervisors, and employees described in 5 U.S.C. 7112(b)(2)(3),(4),(6) and (7).
Id. at 16 (footnote omitted).
III. Application for Review
The Activity appeals on the grounds that "(1) that a substantial question of law is raised because of a departure from Authority precedent; and (2) that the Regional Director's decisions on two factual issues were clearly erroneous and these errors prejudicially affect the rights of the Activity." Application for Review at 2. In addition, the Activity requests the Authority to remand the case to the Regional Director because of changes in the NAF program at GFAFB.
According to the Activity, the Regional Director's finding that "a community of interest exists between the Variable Schedule and the Regular employees at GFAFB" is a departure from Authority precedent.(2) Id. at 3. The Activity also asserts that this finding is erroneous. According to the Activity, there are "important factors," such as "a merit promotion plan, competitive areas for reductions in force, adverse action procedures, eligibility for a retirement plan and insurance benefits, and entitlement to earn sick and annual leave and to receive Sunday and holiday pay," which the VS employees do not share with the Regular employees. Id. at 4. The Activity asserts that "[t]o the extent the Regional Director considered the number of similarities as opposed to the nature of those similarities, and accorded equal weight to having personnel files kept in one office and having merit promotion rights, the Activity believes the Regional Director erred." Id. at 5-6 (emphasis in original). In addition, the Activity notes that in contrast to Regular employees, who have regular work schedules and are "guaranteed a certain number of work hours per week[,]" VS employees have "no guarantee that they will ever work at all." Id. at 6 (emphasis in original).
The Activity also asserts that the Regional Director erred by finding that the inclusion of VS employees in a bargaining unit would promote effective dealings with the Activity and efficiency of its operations. In support, the Activity argues that because the NAF program at GFAFB is already experiencing losses, "any increase in operating costs due to managers' lack of flexibility in scheduling their employees (which could reasonably occur if employee schedules were the subject of bargaining) would push the NAF program further into the red." Id. at 9.
Finally, the Activity requests a remand of the Regional Director's decision because of "substantive changes that have occurred in the structure of the NAF program at GFAFB[.]" Id. at 10. The Activity states that on March 10, 1991, the RFT, RPT, TFT, and VS categories were replaced by Regular and Flexible categories and "a new pay system called 'pay banding' was implemented." Id. at 9. The Activity asserts that these changes affected, among other things, the number of hours employees may work and are guaranteed, how employees' pay is determined, and whether employees get within-grade increases and premium pay. The Activity asks the Authority to remand the case to the Regional Director "for appropriate action." Id. at 10.
IV. Analysis and Conclusions
We conclude, for the reasons stated below, that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review.
We find no merit in the Activity's assertions that the Regional Director erred in concluding that the VS employees should be included in the bargaining unit and that her decision constitutes a departure from Authority policy. In reaching her determination concerning an appropriate bargaining unit, the Regional Director appropriately considered the differences and similarities between the conditions of employment of VS employees and those in the RFT and RPT categories. See Regional Director's Decision at 9-11. After weighing the evidence, the Regional Director concluded "[o]n the whole, I find that the VS employees have a sufficient community of interest with the other categories of NAFI employees with whom they work, in either Billeting or MWR, to warrant their inclusion in a bargaining unit." Id. at 13. We conclude that the Activity's arguments constitute nothing more than disagreement with the Regional Director's finding that the VS employees have a community of interest with other NAF employees in MWR and Billeting.
We also reject the Activity's argument that the Regional Director erred in finding that the inclusion of VS employees in the bargaining unit would promote effective dealings with the Activity and efficiency of the Activity's operations. The Activity's assertion that collective bargaining would be detrimental to NAF operations at GFAFB conflicts with Congress' determination in section 7101(a) that "labor organizations and collective bargaining in the civil service are in the public interest." As noted by the Regional Director, Congress specifically found in enacting the Statute that "the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing . . . contributes to the effective conduct of public business . . . ." See section 7101(a)(1)(B). Accordingly, we find that the Regional Director did not err in rejecting the Activity's argument that including VS employees in any bargaining unit would increase costs and, consequently, jeopardize the existence of the NAF program.
Finally, we will not remand the Regional Director's decision and order because of the substantive changes that the Activity asserts have occurred in the structure of the NAF program at GFAFB since the Regional Director's decision issued on February 5, 1991. According to the Activity, the changes in the NAF program were effective on March 1, 1991, and affected the conditions of employment of NAF employees. The Regional Director did not consider the Activity's assertions concerning changes in the NAF program in her decision and order. Consequently, the Activity's assertions are not properly before us and do not provide a basis on which to remand the Regional Director's decision and order. See 5 C.F.R. § 2422.17(b) ("An application may not raise any issue or allege any facts not timely presented to the Regional Director."). Compare Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Cincinnati District, Cincinnati, Ohio, 36 FLRA 138, 146 (1990) (where agency failed to inform Regional Director prior to issuance of decision that a position was vacant, agency was precluded from asserting that the position should not be in