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48:1404(149)RP - - Interior, National Park Service, Rocky Mountain National Park, Estes Park, CO - - 1994 FLRAdec RP - - v48 p1404

[ v48 p1404 ]
The decision of the Authority follows:

48 FLRA No. 149















January 24, 1994


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 under section 2422.17(a) of the Authority's Rules and Regulations. The Petitioner seeks review of the Regional Director's (RD's) decision and order dismissing its petition for certification of representative. The Activity filed an opposition to the application for review.

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

II. Background and RD's Decision

The Rocky Mountain National Park (RMNP or Activity) consists of 414 square miles of the Front Range of the Rocky Mountains in north central Colorado. There has been no history of collective bargaining at the RMNP. The Activity is organized into a Headquarters and five separate divisions: Administration, Ranger Activities, Resource Management, Interpretation, and Maintenance. The portion of the Activity located west of the Continental Divide is organized into the West Unit, which is divided into branches that correspond to the Maintenance, Ranger Activities, and Interpretation Divisions in the East Park.

The Petitioner filed a petition for certification seeking an election in a unit consisting of all Wage Grade (WG) employees, including seasonal/temporary WG employees, but excluding, among others, all professional General Schedule (GS) employees of the Activity. The RD found that the unit sought by the Petitioner was not appropriate. The RD rejected the Petitioner's claim that WG employees do not share a clear and identifiable community of interest with the Activity's GS employees and that a separate unit of WG employees would promote effective dealings and efficiency of agency operations.

The RD found that employees who are employed by the Activity are classified as WG or GS employees, and, although most employees are responsible for performing a mixture of WG and GS duties, WG positions are generally more manual and physically demanding than GS positions. The RD noted that, for the most part, employees in Headquarters and the Divisions of Administration, Interpretation, Ranger Activities and Resource Management are GS employees, while the majority of WG employees are assigned to the Maintenance Division.

According to the RD, the Headquarters and Administration employees provide administrative support to other RMNP employees, employees in the Division of Interpretation (DI) generally serve as tour guides and park information sources, and employees in the Division of Ranger Activities (DRA) are responsible for assistance to RMNP visitors, law enforcement activities, the operation of campgrounds, and the collection of fees. The RD found, in this connection, that, although park rangers are classified as GS employees, their duties require strenuous physical activity, such as rock, ice, and snow climbing. In addition, according to the RD, the Division of Resource Management (DRM) is responsible for the management of the RMNP's natural resources and its employees perform heavy, manual, outdoors work. The RD also found that, while the Division of Maintenance's (DM) top managers and support employees, including architects, engineers, and clerical employees are classified as GS employees, employees who work in the DM's five maintenance operations branches, including mechanics, custodial workers, water treatment plant operators, and heavy/light equipment operators are classified as WG employees.(1)

The RD determined that all Activity employees' official personnel files are maintained by the Division of Administration's Personnel Management Branch and that both groups are serviced by a common payroll office. The RD recognized that, although there are differences in pay structure and rates between the two groups, they have common fringe benefits including insurance, retirement, and access to the credit union. In addition, according to the RD, the work of all employees is appraised using the same procedures, all employees are considered for awards or disciplinary action under identical procedures and criteria, and all new temporary/seasonal WG and GS employees attend common orientation sessions. The RD also found that both WG and GS employees serve together on various committees formed by the RMNP Superintendent to make recommendations concerning Equal Employment Opportunity (EEO) matters and awards. The RD further found that, in the case of a reduction-in-force, the Activity is treated as a single competitive area.

The RD also rejected the Petitioner's claim that a unit comprised of WG employees only is appropriate because of alleged limited interaction between maintenance workers and park rangers. Rather, according to the RD, uniformed GS and WG employees have regular routine working contacts, receive common training for fire-fighting, search and rescue operations, and may work side-by-side when called to duty. The RD further found that GS employees who are responsible for procurement, safety, facilities management, and maintenance engineering have substantial daily contact with WG employees.

The RD acknowledged that WG and GS employees are treated differently, as required by Statute, concerning such matters as overtime, compensatory time, and pay schedules. In this connection, the RD noted that the procedures mandated by the Office of Personnel Management for the initial hiring and rehire or recall of temporary and seasonal employees are different for WG and GS employees. The RD also noted that it is unusual for a GS employee to be selected for WG positions, and vice versa.

The RD concluded that the Activity's WG employees "do not share a community of interest separate and distinct from its GS employees[,]" and that the unit was not appropriate for certification. Decision at 11. In reaching this conclusion, the RD stated that "the evidence clearly demonstrates that work contacts between many WG and GS employees at [the Activity] are regular and frequent." Id. As relevant here, the RD found that "policies concerning leave, disciplinary action, park housing, and other policy areas are made by the Superintendent and are applicable to all [Activity] employees." Id. According to the RD, the evidence showed the "highly-integrated nature of [the Activity], the daily close contact between members of the two groups of employees, uniform personnel policies and practices, a common area of consideration for RIFs, and the existence of a degree of overlap in job functions." Id. at 11-12, citing National Association of Government Employees, Local R12-35, 8 FLRA 649 (1982) (NAGE, Local R12-35).

The RD also concluded that "the exclusion of the GS employees from a unit of exclusive recognition would not promote effective dealings with and the efficiency of agency operations." Id. at 12. In this connection, the RD found that "the exclusion of the GS employees would result in bargaining unit fragmentation, which the Authority has historically determined not to be in the best interest of effective labor relations." Id. Accordingly, the RD concluded that the establishment of a bargaining unit of WG employees sought by the Petitioner would not satisfy the statutory requirements of 7112(a)(1), and dismissed the petition.

III. Positions of the Parties

A. The Petitioner

The Petitioner asserts that compelling reasons exist for granting its application for review under part 2422.17(c)(1), (2) and (4) of the Authority's Rules and Regulations.(2)

Relying on Department of the Treasury, Bureau of the Public Debt, 4 A/SLMR 248 (1974), the Petitioner contends that the record does not indicate a "substantial overlap and integration between the WG and GS employees at [the Activity]." Application at 2. The Petitioner also contends that, while the testimony of the WG employees "expresse[d] . . . concerns about the current policies" and "endorsed the potential benefits that might be brought by their own bargaining unit[,]" the GS employees testimony did not indicate that they would be "negative[ly] impact[ed]" by a separate WG unit. Id. at 5. According to the Petitioner, this testimony demonstrates that a community of interest does not exist between the WG and GS employees.

B. The Activity

The Activity contends that the Petitioner's arguments constitute disagreement with the RD's evaluation of the evidence and, as such, do not constitute extraordinary circumstances which warrant reconsideration of an Authority policy.

IV. Analysis and Conclusions

We conclude, for the following reasons, 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.

In determining whether employees should be included in a bargaining unit, the Authority is bound by the criteria for determining the appropriateness of a bargaining unit set forth in section 7112(a)(1) of the Statute. The Authority may determine that a unit is appropriate only if the determination will (1) ensure a clear and identifiable community of interest among the employees in the unit; and (2) promote effective dealings with, and efficiency of the operations of, the agency involved. In making determinations under section 7112(a)(1), the Authority examines the factors presented on a case-by-case basis. The Authority has not specified individual factors or the number of factors necessary to establish a community of interest. Rather, the Authority examines the totality of the circumstances in each case in making appropriate unit determinations under section 7112(a)(1) of the Statute. See U.S. Department of Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Illinois, 48 FLRA 620, 635 (1993) (Office of the Chief Immigration Judge, Chicago).

We find that the Petitioner has not established that the RD's decision raises a substantial question of law or policy because of an absence of or a departure from Authority precedent. In this regard, we conclude that Authority precedent supports the RD's decision. For example, NAGE, Local R12-35, 8 FLRA 649 (WG-only unit found not appropriate because the WG and GS employees were functionally integrated in carrying out the mission of the Agency, had similar skills, worked side-by-side, and were subject to uniform personnel policies).

We also conclude that the Petitioner has not established that the RD's findings on substantial factual issues are clearly erroneous and that such error prejudicially effects the rights of the Petitioner. The Petitioner's claims that there is no substantial overlap and integration between the WG and GS employees, and that the RD should have given more weight to the WG employees testimony regarding their concerns about present policies and the potential benefits of a separate bargaining unit, do not establish that review of the RD's Decision is warranted. In this connection, the Authority has not specified individual factors or the number of factors necessary to establish a community of interest. Rather, the Authority requires examination of the factors presented on a case-by-case basis. See Office of the Chief Immigration Judge, Chicago, 48 FLRA at 634; American Federation of Government Employees, Local 2004, 47 FLRA 969, 972 (1993). Our review of the record indicates that the RD's finding that the WG employees did not share a community of interest separate and distinct from the GS employees at the Activity is supported by the record.

We find that the record supports the RD's findings and shows that the RD properly determined that the proposed unit was not appropriate under section 7112(a)(1) of the Statute. In our view, the Union's application for review expresses mere disagreement with the RD's findings of fact, and application of Authority precedent and, as such, provides no basis for granting review of the RD's decision. See Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 46 FLRA 502, 510 (1992). Accordingly, we will deny the application.

V. Order

The application for review is denied.

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

1. Among the otherwise exclusively WG positions in the maintenance operations branches, there is one GS clerk-typist and one GS fleet maintenance clerk.

2. 5 C.F.R. § 2422.17(c) provides in pertinent part:

[A]n application for review may be granted only upon one or more of the following grounds:

(1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, Authority precedent;

(2) That there are extraordinary circumstances warranting reconsideration of an Authority policy;

. . . .

(4) That the Regional Director's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of a party.