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44:1238(101)RP - - FAA Technical Center, Atlantic City Airport, NJ and NFFE Local 1340 - - 1992 FLRAdec RP - - v44 p1238

[ v44 p1238 ]
The decision of the Authority follows:

44 FLRA No. 101








LOCAL 1340





May 15, 1992

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 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 petitions for clarification of unit finding that an employee who was temporarily detailed from a supervisory position to an unclassified position was excluded from the bargaining unit.(1) The Agency did not file an opposition to the Union's application.

For the following reasons, we deny the application for review.

II. Background and Regional Director's Decision

Prior to March 10, 1991, Douglas Adams occupied the position of Supervisory Logistics Management Specialist, GS-11, in the aircraft support store of the Activity's logistics division. On March 10, 1991, as a result of a pending investigation concerning possible misconduct, Adams was placed on a temporary detail to an unclassified position in the warehouse of the logistics division.

By its petition, the Union sought to include Adams in an existing bargaining unit of nonprofessional employees.(2) The Activity maintained that Adams was excluded from the unit because he is a supervisor within the meaning of section 7103(a)(10) of the Statute(3) and that it would be inappropriate to clarify the unit status of Adams' position because it was temporary.

The RD found that Adams, in his temporary position, performs duties similar to those of other warehouse workers who are included in the existing unit.(4) However, the RD also found that while on detail, Adams completed and signed performance ratings for employees he supervised prior to the detail, met with these employees and gave them their performance standards for the new rating year, and attended an Activity conference for supervisors concerning the performance appraisal system. The RD also noted that Adams retained his GS-11 pay and grade. The RD concluded that "Adams' position should continue to be excluded from the bargaining unit." RD's Decision at 40.

III. Application for Review

The Union contends that there is no Authority precedent for the RD's finding that Adams should be excluded from the bargaining unit. The Union argues that, as a unit employee who is detailed to a supervisory position is excluded from a bargaining unit, a supervisory employee who is detailed to a unit position should be included in the unit and be accorded rights to Union representation.

IV. Analysis and Conclusions

We conclude, for the following reasons, that no compelling reasons exist within the meaning of section 2422.17(c)(1) of the Authority's Rules and Regulations, for granting the application for review. We find that there is precedent supporting the RD's decision that Adams is excluded from the existing unit.(5)

In determining whether an employee should be in a bargaining unit, the Authority is bound by section 7112(a)(1) of the Statute, which provides that a unit is appropriate only if it will "ensure a clear and identifiable community of interest among the employees in the unit . . . ." To have a community of interest with unit employees, a temporary employee must have a reasonable expectation of continued employment in the unit. See, for example, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 36 FLRA 237 (1990) (employees hired temporarily to perform work not normally done by the activity were excluded from existing unit because they had no reasonable expectation of continued employment and did not share a community of interest with unit employees).

Adams was temporarily detailed from a supervisory position to an unclassified nonsupervisory position.(6) It is undisputed, in this regard, that the both the detail and the position to which Adams was detailed are temporary. Further, although Adams was to remain in the temporary position until completion of an investigation, Adams "still formally occupies" his supervisory position. Id. at 40. Finally, it also is undisputed that, although Adams' detailed duties are similar to those of other warehouse workers who are in the unit, Adams retained his supervisory pay and grade.

On this record, we conclude that Adams does not have a reasonable expectation of continued employment in the bargaining unit sufficient to warrant his inclusion in that unit. Consequently, we find that Adams does not share a community of interest with bargaining unit employees. Accordingly, consistent with the RD's decision, we find that Adams may not be included in the unit.

We reject, in this regard, the Union's argument that Adams should be included in the unit because unit employees who are temporarily detailed to supervisory positions are excluded from units. A supervisor, whether temporary or permanent, may not be included in any appropriate bargaining unit under section 7112 of the Statute. See United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434, 1442 (D.C. Cir. 1992) ("Under the [Statute] . . . supervisors are members of management and are legally disabled from belonging to any bargaining unit[.]"). On the other hand, employees who are not supervisors may or may not be included in existing bargaining units depending upon, among other things, whether they share a community of interest with unit employees. In this case, we find that Adams does not share the requisite community of interest with unit employees. Accordingly, the fact that he has been temporarily detailed out of his supervisory position is not determinative of his unit status.

V. Order

The application for review is denied.

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

1. The RD's findings regarding other positions are not in dispute and will not be addressed. 

2. The Union represents separate bargaining units composed, with certain exceptions, of professional and nonprofessional employees of the Activity.

3. Section 7103(a)(10) of the Statute provides, in pertinent part:

"supervisor" means an individual . . . having authority . . . to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment . . . [.]

4. Although the detail was originally not to exceed July 7, 1991, it is undisputed that, on March 31, 1992, when the Union filed its application for review in this case, Adams was still temporarily assigned.

5. Insofar as the RD's decision may be read as finding that a unit determination should not be made where an employee is temporarily detailed, we consider such finding an alternate ground for the RD's decision. As such, and in view of our decision, we do not address it further.

6. It is undisputed that, prior to the detail, Adams properly was excluded from the unit as a supervisor.