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55 FLRA No. 47
U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
U.S. RANGER ALLIANCE
AMERICAN FEDERATION OF GOVERNMENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCALS 868, 2198, and 3145
AFL-CIO (Labor Organizations/Intervenors)
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCALS 762 and 2062,
INDEPENDENT (Labor Organizations/Intervenors)
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R3-68, R3-120, AFL-CIO
SERVICE EMPLOYEES INTERNATIONAL UNION
LOCAL 557, AFL-CIO
DECISION AND ORDER ON REVIEW
March 12, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on an Application for Review (AFR) filed by the United States Ranger Alliance (USRA) under section 2422.31(c) of the Authority's [ v55 p312 ] Regulations. [n1] The American Federation of Government Employees filed an opposition. USRA challenges two holdings of the Regional Director's (RD's) Decision and Order Dismissing the Petition (Decision). The first matter sought to be reviewed concerns the finding that a functional unit of Agency-wide unrepresented Law Enforcement Park rangers, Criminal Investigators and Correctional Officers would not be an appropriate unit. The second matter for which review is sought concerns the RD's decision that he was not required to determine whether separate, park-by-park units would be appropriate, in advance of a petition amendment and showing of interest by USRA.
For the reasons that follow, we find that the Petitioner has not demonstrated that review of the RD's Decision is warranted under the facts of this case.
II. Background and RD's Decision
The National Park System consists of approximately 374 Parks throughout the country. Each Park is managed by a Park Superintendent, who "has overall accountability and oversight for the Park." Decision at 7. Park Superintendents report to one of seven Regional Directors of the National Park Service (NPS), depending upon where the Park is located. Regional Directors report to the Deputy Director, who in turn reports to the Director of the NPS.
There are 46 bargaining units in the NPS, representing approximately one third of all of NPS employees. Forty two of these 46 units pertain to employees at various Parks throughout the National Park System; the remaining four units are at the NPS Headquarters (one unit) and the National Capital Region (three units). Forty of those 42 other units are comprised of some or all employees of an individual Park. One of the two multi-park units represents NPS employees throughout the states of New York and New Jersey; the other multi-park unit represents employees of the Virginia Parks in the system. Id. at 17-18. USRA's petition addresses the status of approximately 1600 Law Enforcement Park Rangers, about 500 of whom are already in established bargaining units. An additional 53 nonsupervisory Criminal Investigators at various Parks are also at issue, as are 10 unrepresented Correctional Officers at Yosemite National Park. USRA's petition seeks to represent all such unrepresented employees in a single unit, and to sever those same types of employees out of any existing units and place them into the unit with the unrepresented employees (or permit an election where severance was necessary if the unrepresented employee group was not found to be appropriate). This position was ultimately modified to include a request that, if these broad units were not found to be appropriate, that the RD find that functional units of these employees on a park-by-park basis are appropriate, and that USRA be permitted additional time to amend its petition and submit a 30% showing of interest for each individual Park. See id. at 36; Petitioner's Post-Hearing Brief at 52.
In 1976 Congress passed the General Authorities Act, which began the professionalization of the Park Ranger Force. The professionalization of Park law enforcement has continued since that time, and in 1994 the NPS issued a directive establishing the basic format for managing the Park Ranger series, as well as benchmark position descriptions for Park Rangers. In 1995, the NPS reorganized to become smaller and more efficient. During the reorganization, staff reductions were made at the Headquarters and regional levels, and extensive management authority was delegated to the Parks. Id. at 6.
The primary duty of Law Enforcement Park Rangers includes "the enforcement of the criminal laws of the United States through investigation, apprehension, education and detention of individuals suspected or convicted of violating these laws." Id. at 12. They may potentially be required to investigate criminal activity by other Park employees, and may, but need not, have office space in separate areas from other employees. Additionally, Law Enforcement Park Rangers receive approximately 4% more pay than employees at the same grade level who are not Law Enforcement Park Rangers. However, while Law Enforcement Park Rangers spend a preponderance of their time in law enforcement, the factor which determines whether they may be promoted to the GS-9 journey level is their work as resource educators, work which is routinely performed by other non-Law Enforcement Park Rangers and other Park employees. Id. at 8 and 14. [ v55 p313 ]
The RD's Decision identified four issues presented by USRA's petition:
(1) [t]he timeliness of USRA's original petition and [eighth] amended petition, as they pertain to severance of law enforcement employees from the existing bargaining unit of employees of the Great Smoky Mountains National Park[;] (2) [t]he appropriateness of severance of law enforcement employees from existing bargaining units at the 11 Parks[;] (3) [t]he appropriateness of a functional unit of [unrepresented] Law Enforcement Park Rangers (protection), Criminal Investigators and Correctional Officers [and;] (4) [t]he appropriateness of the USRA's alternative request, in which USRA seeks a determination that a functional unit of law enforcement employees at a Park is an appropriate unit within the meaning of the Statute.
Decision at 5. The RD ruled against USRA on all four issues, dismissing the petition in its entirety. As noted previously, only the RD's holding as to the third and fourth issues are being challenged.
With respect to the third issue, the RD concluded that a functional nationwide unit of unrepresented Law Enforcement Park Rangers, Criminal Investigators and Correctional Officers would be inappropriate. In so concluding, the RD first addressed the issue of a clear and identifiable community of interest by examining whether the employees of the proposed unit have significant employment issues which are different or unique from other employees, as well as the concomitant concern for undue unit fragmentation. Although law enforcement employees have some common working conditions, such as similar law enforcement responsibilities, equivalent training and special pay benefits, he nevertheless concluded that "the law enforcement employees are integrated, physically and functionally, with other Park employees." Id. at 32. For example, the RD found that working conditions are set by each Park Superintendent, who supervises Law Enforcement Park Rangers. In addition, the RD also found that both Interpretive and Law Enforcement Park Rangers wear uniforms and may carry weapons, and that Law Enforcement Park Rangers may share office space with non-law enforcement employees. The RD also noted that law enforcement employees regularly interact with other Park employees, and that "[a]ll employees at a Park, regardless of job classification, work in concert to accomplish the mission of that particular Park." Id. at 33. In that regard, the RD again noted that promotion to GS-9 for Law Enforcement Park Rangers was dependent on how well they performed resource education duties, a type of non-law enforcement activity also accomplished by non-Law Enforcement Park Rangers and most other Park staff. The RD ultimately concluded that Law Enforcement Park Rangers do not have a separate community of interest apart from other Park employees.
The RD next concluded that the proposed unit would not promote effective dealings with the NPS. In assessing the impact on the relationship between management and the exclusive representative, the RD examined the scope of authority of Park personnel offices, the organizational level at which labor relations policy is set (again, at the Park level), and the history of collective bargaining at the NPS, which had primarily consisted of bargaining at the individual Park level, to include a functional unit of guards at a single Park location.
The RD then found that a unit of unrepresented law enforcement employees would not promote operational efficiency because such a unit would "not comport with the organizational structure of the National Park Service." Id. at 34. Specifically, the requested unit would cut across various organizational divisions and would conflict with the established chain of command that ends with the Park Superintendent. Furthermore, since "the authority to establish working conditions and set labor relations policies has been delegated to the Park level[,]" the petitioned-for unit, which "cut[s] across those agency delegations[,] . . . would increase the costs and decrease the efficiency of the National Park Service labor relations program." Id. at 35. As an example, the RD mentioned the inefficiency of the Virginia Parks bargaining unit, and the New York and New Jersey Parks bargaining unit, both of which comprise more than one Park.
In concluding his analysis, the RD addressed (and distinguished) certain bargaining units cited by USRA as supporting its position, especially the nation-wide U.S. Park Police unit. The RD noted that all the members of this unit are part of the NPS's National Capital Region, follow the same chain of command, and share in one competitive area for reduction-in-force (RIF), factors not presented by the bargaining unit proposed by USRA. See id.
With respect to the fourth issue, the RD found that he was being asked to make a unit determination in the absence of any petition before him, supported by the requisite showing of interest, requesting a determination as to Park-by-Park bargaining units. Id. at 36. For that reason, he declined to resolve at that time the appropriateness of such units. Id. [ v55 p314 ]
III. Positions of the Parties
USRA asserts that the RD failed to apply established law, and committed clear and prejudicial error concerning substantial factual matters regarding his determination that the petitioned for nationwide unit of unrepresented Law Enforcement Park Rangers, Criminal Investigators and Correctional Officers did not constitute an appropriate unit. In support of this, USRA points to various facts in the record which support its assertion that law enforcement authority is sufficiently standardized and subject to agency wide guidelines so as to warrant the nationwide unit sought. In particular, it points to the Agency-level "Rangers Career Initiative," which established that only Law Enforcement Park Rangers could perform law enforcement activities within the National Park System. AFR at 9. USRA claims that the standardization and professionalization of the Park Ranger Force indicates that the petitioned-for employees share separate and distinct community of employment interests from other Park employees, and points out that the petitioned-for employees are paid under a different pay scale than other employees, receive different overtime and retirement benefits, and "share employment interests in their specialized job risks of injury or death." Id. at 15.
USRA also argues that the petitioned-for employees are not well integrated with other Park employees, and that "the RD's decision is in error when it concludes that the petitioned-for employees are integrated with other park employees so as to deny them separate bargaining rights." Id. at 17. USRA also asserts that the history of collective bargaining at the NPS indicates that the Agency has efficiently and effectively bargained with separate law enforcement units for decades, noting specifically that the Fraternal Order of Police has represented a functional unit of law enforcement rangers at the Independence National Historical Park since 1977. See id. at 23-24 and 40. USRA also points to those bargaining units which are not based upon individual Parks, and argues that the mission of the National Park System reflects a management of resources on an Agency-wide basis.
As for effective dealings between labor and management and operational efficiency, USRA states that the proposed unit "allows the parties to respond in a more meaningful manner to this functional group of employees who possess characteristics and concerns which are limited to that particular group[,]" and cites to the Agency's bargaining history with existing functional bargaining units of law enforcement employees. Id. at 40-41. USRA asserts that the proposed unit would also reduce fragmentation because it would be a more effective, comprehensive unit structure. Specifically, USRA notes that the NPS has been consolidating control over the law enforcement program at the Agency level, and that this demonstrates "the degree of commonality and integration of the mission and function of the petitioned-for employees throughout the nationwide scope of the NPS[.]" Id. at 43.
As to the second matter for which review is sought, USRA asserts that the RD failed to apply established law, committed prejudicial error, and committed clear and prejudicial error concerning substantial factual matters by refusing to determine, prior to amendment of the petition and the submission of a 30% showing of interest on a park-by-park basis of unrepresented Law Enforcement Park Rangers, Criminal Investigators and Correctional Officers, whether such bargaining units would be appropriate under the Statute. USRA argues that the RD committed a procedural error by refusing to allow the Union to amend its petition to attempt to represent the unrepresented law enforcement employees on an individual Park basis. USRA also asserts that the RD's decision failed to apply established NLRB precedent, and that "[t]o force the Petitioner . . . to file new petitions seeking to represent the petitioned-for employees on a park-by-park basis is both impractical and absurd[.]" AFR at 49.
In its Opposition to USRA's Application for Review, the American Federation of Government Employees argues that the RD's Decision comports with Authority precedent, and nothing in the AFR meets the Authority's criteria for review. Opposition at 3. AFGE also asserts that USRA is misrepresenting the facts, that USRA never sought to amend its Petition to seek an election on a park-by-park basis, and that a 30% showing of interest on a park-by-park basis would be required before the RD could evaluate the appropriate of such units. Opposition at 3 and 6-7.
IV. Analysis and Conclusions
A. The RD did not Fail to Apply Established Law, and did not Commit Clear and Prejudicial Error in Finding that a Nationwide Unit of Unrepresented Personnel Was Not Appropriate
Under section 7112(a) of the Statute, a unit may be determined to be appropriate only if it will: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with the agency involved; and (3) promote efficiency of [ v55 p315 ] the operations of the agency involved. See U.S. Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 959 (1997) (FISC). In making determinations under section 7112(a), the Authority examines the factors presented on a case-by-case basis. See U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 47 FLRA 602, 610 (1993).
The Authority's decision in FISC, 52 FLRA at 960, recounts in detail the analysis undertaken to determine whether these statutory criteria are met, and this analysis is accurately applied by the RD in his own analysis found in his Decision at 32-35. In that regard, the Authority has not specified the particular factors or number of factors which must be found before concluding that a clear and identifiable community of interest exists. 52 FLRA at 960, citing to Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245, 1254 (1992).
The RD also accurately applied the Authority's criteria regarding the other section 7112(a) requirements. As stated by the RD, the "effective dealings" criteria pertain to the relationship between management and the exclusive representative seeking to represent the unit, and "efficiency of operations" criteria pertain to whether the structure of the bargaining unit bears a rational relationship to the operational and organizational structure of the agency. Decision at 33-34. The RD's statements reflect current Authority precedent. See Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Ohio, 53 FLRA 1114, 1131 (1998), citing to FISC, 52 FLRA at 961.
USRA has not shown that the RD failed to apply established law in this matter. USRA also has not shown that the RD committed clear and prejudicial error concerning substantial factual matters. USRA argues against the probative value of those facts relied on by the RD holding against USRA's position, while at the same time urging that probative value be given to those facts in the record that USRA believes warrant a finding in its favor. This argument, however, does not show the RD failed to apply established law or committed clear and prejudicial error concerning substantial factual matters regarding the weight, importance, or significance ascribed by the RD to various matters in the record. [n2] As such, these assertions do not meet the Authority's criteria for granting an application for review.
B. The RD did not Fail to Apply Established Law, did not Commit Procedural Error, and did not Commit Clear and Prejudicial Error Concerning Substantial Factual Matters, by Refusing to Determine Whether Park-by-Park Units Would be Appropriate
USRA's argument is that the RD failed to apply established law, committed procedural error, and clear and prejudicial error concerning substantial factual matters, "by refusing to consider the Petitioner's motion that its petition be amended to seek to represent the unrepresented law enforcement employees on a park-by-park basis." AFR at 48. We note at the outset that unions are permitted to amend representation petitions, and that all election petitions, even amended ones, must be accompanied by a showing of interest. See 5 C.F.R. 2422.1(a)(3). The last paragraph of USRA's Post-Hearing Brief makes it clear that it sought a determination as to the appropriateness of the desired unit in advance of submitting an amended petition or showing of interest. In this regard, that paragraph states:
In the alternative, the Authority should hold that the functional unit sought to be represented by the Petitioner Labor Organization is appropriate for representation by USRA on a park-by-park basis rather than on an agency-wide basis. If the Authority so holds, in the interest of efficiency and economy, it should allow the Petitioner additional time to amend the Petition and submit a 30% showing of interest on a park-by-park basis. [emphasis added].
Post-Hearing Brief at 52. It is not error for an RD to refuse a union's request to make an appropriate unit determination prior to the filing of a petition and showing of interest.
The authorities cited by USRA on this matter are inapposite, factually and legally, to the resolution of this issue. In citing to 29 C.F.R. section 101.18(a), USRA appears to argue that the RD was required to act, even though the regulation acknowledges the discretionary nature of the NLRB hearing officer's decision. This regulatory provision does not apply in this case. Moreover, the National Labor Relations Board precedent cited by USRA presents circumstances different from the present matter. In Brown Transport Corp., 296 NLRB 1213 (1989), the petitioning union sought a single facility bargaining unit and the employer asserted that only a nationwide unit was appropriate. Id. at 1214. [ v55 p316 ] After agreeing with the employer on the appropriate unit issue, the Board permitted the union to demonstrate a substantial showing of interest in the broader unit. Id. at 1215. Brown Transport Corp. does not, therefore, support the position that a union may seek and obtain an appropriate unit determination prior to requesting to amend its petition and providing a showing of interest.
USRA's remaining cited NLRB precedent, Deluxe Metal Furniture Company, 121 NLRB 995 (1958), Carbide & Carbon Chemicals Corporation, 88 NLRB 437 (1950), and Great Atlantic and Pacific Tea Company, 99 NLRB 1500 (1952), and the A/SLMR case, General Services Administration, Region 4 and LIUNA, Local 700, and NAPFE, Local 324 (GSA), 6 A/SLMR 272 (1976), are all inapposite to the issues raised by USRA. Deluxe Metal Furniture Company addresses rules as to when a subsequent amendment will be considered filed. Carbide & Carbon Chemical Corporations, Great Atlantic and Pacific Tea Company and GSA illustrate the rule that a petitioner may seek to amend its petition, accompanied by a showing of interest, at the hearing. As noted above, USRA here did not seek to do that. The timeliness considerations discussed above address the issue of whether a subsequent amendment should be considered filed as of the earlier original filing date, such as where there are time limits placed upon the availability for filing such petitions -situations analogous to the Authority's own rules on such matters found at section 2422.12 of the Authority's Regulations. No timeliness issues are presented where, as here, the petitioning union is seeking an election in a group of unrepresented employees where there have been no elections in the preceding twelve months regarding the same unit or a subdivision thereof. As such, these cases provide no basis for finding that the RD failed to apply established law, committed procedural error, or committed clear and prejudicial error concerning substantial factual matters.
The two Authority cases cited by USRA on this issue also do not show that the RD failed to apply established law or committed other reversible error. In North Carolina Army National Guard, Raleigh, North Carolina, 34 FLRA 377 (1990), the petitioner made its requisite showing of interest but inadvertently underestimated the number of employees in the proposed unit, thereby making its showing of interest deficient. In that particular circumstance, the Authority permitted the petitioner additional time to submit any additional information it already had in its possession as to whether it had the required showing of interest. 34 FLRA at 382-83. That holding provides no support for USRA's argument that the RD committed the errors alleged as to this ruling.
The Authority's recent decision in National Mediation Board and American Federation of Government Employees, 54 FLRA 1474 (1998) (NMB), also does not show that the RD failed to apply established law or committed other reversible error. NMB did not involve the standards for permitting an amendment. Rather, the Authority found no requirement that a petitioner must amend its petition in order to trigger an evaluation of whether certain positions should be excluded from the proposed bargaining unit by virtue of established statutory exclusions. In reviewing the particular facts of that situation, the Authority stated that "the Union was merely requesting that the RD certify as appropriate, with necessary statutory exclusions, the same unit for which it filed the petition." NMB, 54 FLRA at 1482.
The Application for Review is denied.
Footnote # 1 for 55 FLRA No. 47
(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
Footnote # 2 for 55 FLRA No. 47
USRA asserts that the RD incorrectly concluded that all of the employees at issue are in single-Park RIF competitive areas. See AFR at 28. While there appears to be one region- wide bargaining unit covering some of these employees, the impact of this alleged error, even if true, does not affect the outcome in this matter.