[ v57 p154 ]
57 FLRA No. 39
UNITED STATES DEPARTMENT OF THE
AIR FORCE, 82ND TRAINING WING
361ST TRAINING SQUADRON
ABERDEEN PROVING GROUND, MARYLAND
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
DISTRICT LODGE 12, AFL-CIO
DECISION AND ORDER DENYING
APPLICATION FOR REVIEW
May 17, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope,
I. Statement of the Case
This case is before the Authority on an application for review of the Regional Director's (RD's) decision finding that a proposed unit of Agency employees is appropriate under § 7112(a) of the Federal Service Labor-Management Relations Statute (Statute). The Agency filed the application for review under § 2422.31(a) of the Authority's Regulations on the grounds that: (1) the Regional Director improperly applied the statutory criteria of § 7112(a) of the Statute in determining the appropriateness of the proposed unit; (2) the Regional Director erred by failing to exclude an employee classified as a Supervisory Instructional Systems Specialist from the unit on the grounds that the employee is a supervisor; and (3) the Regional Director erred by failing to exclude an employee classified as a Supervisory Training Instructor from the unit. The Union did not file an opposition to the Agency's application.
For the reasons that follow, we deny the Agency's application for review.
II. Background and RD's Decision
The Union filed a petition seeking an election among the four, non-professional employees of the 361st Training Support Squadron, Detachment 1 (Detachment) located at Aberdeen Proving Ground, Maryland. Organizationally, the Detachment is a component of the 361st Training Support Squadron, which is comprised of the Detachment and another unit located at Naval Air Station Pensacola, Florida. The 361st Training Squadron is one of the four training squadrons that make up the 82nd Training Group. The 82nd Training Group, in turn, is one of four training groups that comprise the 82nd Training Wing. The 82nd Training Wing is headquartered at Sheppard Air Force Base, Texas. [n1] It is a component of the 2nd Air Force, headquartered at Keesler Air Force Base, Mississippi, which is a component of the Air Education and Training Command, headquartered at Randolph Air Force Base, Texas.
At the time of the hearing, the unit, as proposed by the Union, consisted of four employees: a Supervisory Instructional Systems Specialist (GS-1750-12), a Supervisory Training Instructor (GS-1750-11), and two Training Instructors (GS-1712-09). The employees in the proposed unit teach training courses, such as Aircraft Metals Technology, Heat Treatment and Advanced Technologies, to civilian and military Air Force personnel.
The Commander of the Detachment has the authority to discipline and hire employees in the proposed unit, subject to higher level approval. [n2] The Commander hires employees from nationwide lists of qualified applicants, compiled by the Air Force Personnel Center (AFPC) at Randolph AFB, which coordinates the hiring for the 82nd Training Wing. The employees in the proposed unit are evaluated by their military supervisors. The Commander also determines the hours of work for the Detachment, in coordination with the needs of the other tenants of the facility. Moreover, the Commander can release employees in an emergency, although, in practice, the Commander follows the policies of the facility in this regard. [ v57 p155 ]
The area of consideration for the Detachment for reduction-in-force purposes is the local commuting area. While it is unclear exactly whom the employees in the Detachment compete against in this regard, it appears that they compete only against the other employees in the Detachment, instead of competing against the other employees of the 82nd Training Wing who are assigned to other locations. [n3]
Additionally, the Detachment's employees have little or no interaction with their counterparts at other facilities operated by the 82nd Training Wing. Dover AFB handles pay and time matters for the Detachment's employees, while the Civilian Personnel Office at Sheppard AFB handles most of the other day-to-day personnel and labor relations matters involving the employees of the Detachment.
The Regional Director first considered whether or not the proposed unit was appropriate under § 7112(a) of the Statute. [n4] In this regard, he laid out and applied the criteria for determining the appropriateness of units articulated in United States Dep't of the Navy, Fleet and Industrial Supply Center, Norfolk, Va., 52 FLRA 950 (1997) (FISC). First, he found that the employees shared an identifiable community of interest. RD's Decision at 8.
Next, he found that the proposed unit would promote effective dealings with the Agency. The Regional Director emphasized that no other party was seeking to represent all of the employees of the 82nd Training Wing, whose employees are geographically isolated with differing functions. Id. at 9. Additionally, he noted that the Commander of the Detachment had a great deal of discretion in establishing the day-to-day working conditions of the employees in the proposed unit and that those employees had little or no interchange with the other employees of the 82nd Training Wing. Id.
The Regional Director also found that the proposed unit would promote the efficiency of operations of the Agency. In this regard, he again emphasized that denying the employees the right to organize the proposed unit would effectively prevent the Detachment's employees from organizing, as the Agency had not offered any alternatives which would provide for the representation of the employees in the proposed unit. Id. at 10. The Regional Director also noted that the Commander has the authority to negotiate at the Detachment level. Id. Having found that the proposed unit satisfied all of the criteria articulated in FISC, the Regional Director ruled that the proposed unit was appropriate under § 7112(a) of the Statute. [n5]
The Regional Director then addressed the bargaining unit status of two of the positions in the proposed unit. First, he considered the status of an employee classified as a Supervisory Instructional Systems Specialist. The Regional Director ruled that the employee was a supervisor as that term is used in the Statute. [n6] Id. at 13. Additionally, although the Agency had not raised the matter, the Regional Director found that the employee should also be excluded from the unit because she was a confidential employee under § 7112(b)(2) of the Statute. Id. at 13.
Next, the Regional Director considered whether the proposed unit should include an employee classified as a Supervisory Training Instructor. Although the incumbent was not supervising any employees at the time of the hearing, she had, in the past, served as a supervisor. Additionally, the Agency introduced evidence at the hearing that the employee in question would, in the future, be supervising a Training Instructor whom the Agency had preliminarily selected to fill a position in the Detachment. The Regional Director noted that anticipated duties can not form the basis for exclusion from the Unit. Accordingly, he ruled that the employee was not a supervisor as the employee was not supervising any employees at the time of the hearing. Id. at 14-15. [ v57 p156 ]
III. The Agency's Application for Review
The Agency first argues that the Regional Director improperly applied the criteria of § 7112(a) of the Statute. First, the Agency notes that the proposed unit is very small. In this connection, the Agency maintains that the cost to negotiate and administer a collective bargaining agreement for such a small unit from a great distance would be unduly expensive. Moreover, the Agency maintains that it would be difficult for its understaffed Civilian Personnel Office to negotiate and administer such a contract. The Agency also maintains that such a small unit would not promote the efficiency of the Agency's operations, as the proposed unit would not provide any benefit to the employees or the Agency and would result in unwarranted fragmentation.
The Agency next asserts the Regional Director erred when he failed to exclude the employee classified as a Supervisory Instructional Systems Specialist from the proposed unit on the grounds that she was a supervisor, as that term is used in the Statute. In this regard, the Agency notes that the employee discusses hours of work and changes in conditions of employment with the Detachment Commander, serves on the hiring committee, makes recommendations on hires and assists the Commander of the Detachment in the wording of appraisals.
Finally, the Agency claims that the employee classified as a Supervisory Training Instructor is currently supervising a civilian employee. The Agency maintains that the processing of the selection referenced at the hearing is complete and that the Supervisory Training Instructor is now a supervisor within the meaning of the Statute.
IV. Analysis and Conclusions
A. The Regional Director properly applied the criteria contained in § 7112(a) to find that the proposed unit was appropriate.
The Agency alleges that the Regional Director improperly applied the criteria of § 7112(a) of the Statute. [n7] Under § 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 the operations of the agency involved. See FISC, 52 FLRA at 959, citing Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 46 FLRA 502, 509 (1992). In making determinations under § 7112(a), the Authority examines the factors presented on a case-by-case basis. Id.
The Agency's arguments focus on the size of the unit, the difficulty of negotiating and administering a collective bargaining agreement for the unit, and the inefficiency and fragmentation caused by having a unit of this nature. Although the Agency does not specifically indicate which of the appropriate unit criteria it believes the Regional Director misapplied, these exceptions implicate the second and third criteria under § 7112(a).
The criterion of "effective dealings" pertains to the relationship between management and the exclusive representative selected by unit employees in an appropriate bargaining unit. In assessing this requirement the Authority examines such factors as: the past collective bargaining experience of the parties; the locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit; the limitations, if any, on the negotiation of matters of critical concern to employees in the proposed unit; and the level at which labor relations policy is set in the agency. FISC, 52 FLRA at 961.
In this regard, the Agency maintains that the proposed unit is not appropriate because the understaffed Sheppard AFB Civilian Personnel Office would have to negotiate and administer the collective bargaining agreement from a great distance. However, such centralized control of labor relations and personnel matters does not automatically render a unit inappropriate. See Defense Logistics Agency, Defense Contract Management Command, Defense Contract Management District, North Central, Defense Plant Representative Office-Thiokol, Brigham City, Utah, 41 FLRA 316, 330 (1991). See also Dep't of the Navy, Naval Supply Center, Puget Sound, Bremerton, Wa., 53 FLRA 173 (1997) (unit found to promote effective dealings even though labor relations and personnel administration were handled by a facility at a location in another state). In this case, although labor relations and some personnel matters are handled by a central Civilian Personnel Office, the Commander retains a great deal of discretion in establishing the day-to-day working conditions of the employees of the Detachment. [n8] Moreover, the Commander has the power to negotiate at the Detachment level. In light of the organizational independence of the Detachment and the local control of the day-to-day operations, we conclude that the Regional Director did not misapply the law in this regard. See United States Dep't of Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Il., 48 FLRA 620 (1993) (isolated unit of employees where office administrator retained discretion in determining working conditions of employees in the unit found to promote effective dealings).
The "efficiency of operations" criterion pertains to whether the structure of the bargaining unit bears a rational relationship to the operational and organizational [ v57 p157 ] structure of the agency. Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Oh., 53 FLRA 1114, 1131 (1998), citing FISC, 52 FLRA at 961. In determining the effect of a proposed unit on the efficiency of agency operations, the Authority considers factors pertaining to cost, productivity, and resources. Id. at 1131-32.
Here, the proposed unit bears a rational relationship to the Agency's structure. The proposed unit does not stretch across organizational lines and does not require the creation of a new organization. While the Agency will undoubtedly incur costs negotiating and administering a collective bargaining agreement from Sheppard AFB, this would be true for any unit. In this regard, we also note that the Agency's organizational structure includes a local commander that has discretion over the working conditions of the proposed unit. Moreover, there is no evidence to suggest that the cost of dealing with a separate unit of employees at the Detachment will be any higher than the costs of servicing the Detachment in other personnel and labor relations matters. Finally, the evidence does not suggest that requiring bargaining with the proposed unit would in any way adversely affect the Agency's productivity. [n9]
Accordingly, we find that the Regional Director did not fail to apply established law and that there is no basis for review of his determination that the proposed unit is appropriate under § 7112(a) of the Statute.
B. The Regional Director found that the employee classified as a Supervisory Instructional Systems Specialist was a supervisor, as that term is defined in the Statute.
The Agency alleges that the Regional Director improperly failed to find that the employee classified as a Supervisory Instructional Systems Specialist was a supervisor within the meaning of the Statute. The Agency, however, has misread the Regional Director's decision. The Regional Director specifically found that the employee was a supervisor and excluded her from the proposed unit on those grounds. RD's Decision at 13 (the Regional Director stated that the employee "must be excluded from the unit sought because of her supervisory status"). Accordingly, we find that there is no basis for review in this regard.
C. The Regional Director did not err in finding that the employee classified as a Supervisory Training Instructor was not a supervisor, as that term is defined in the Statute.
The Agency maintains that the Regional Director erred in finding that the employee classified as a Supervisory Training Instructor is not a supervisor as that employee, following the conclusion of the hearing, began to supervise another employee. Bargaining unit eligibility determinations, however, are based on testimony as to an employee's actual duties at the time of the hearing. Veterans Admin. Medical Center, Prescott, Az., 29 FLRA 1313, 1315 (1987). Bargaining unit eligibility determinations are not based on testimony as to what duties had been or would be performed by an employee occupying a certain position. Id. See also United States Dep't of Housing and Urban Development, Washington, D.C., 35 FLRA 1249 (1990) (Authority refused to consider agency assertions that a post-hearing change in an employee's duties had resulted in a change in the employee's bargaining unit status). [n10]
For the above stated reasons, we find that there is no basis for review of the Regional Director's decision.
The application for review is denied.
Footnote # 1 for 57 FLRA No. 39
The 82nd Training Wing employs approximately 42 civilians at a number of different facilities outside of Sheppard AFB, including Ft. Eustis, Virginia, and Ft. Underwood, Missouri.
Footnote # 2 for 57 FLRA No. 39
At the time of the hearing, the position of Commander of the Detachment was vacant. The employee classified as a Supervisory Instructional Systems Supervisor was performing the Commander's duties as an Acting Flight Chief.
Footnote # 3 for 57 FLRA No. 39
We also note that the Agency does not challenge the Regional Director's findings in this regard.
Footnote # 4 for 57 FLRA No. 39
The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved.
Footnote # 5 for 57 FLRA No. 39
The Regional Director directed that an election be held in the following unit:
All nonprofessional employees employed by Detachment 1, 361st Training Squadron, 82nd Training Wing, U.S. Air Force, located at Aberdeen Proving Ground, excluding professional employees, management officials, supervisors and employees described in 5 U.S.C. 7112(b)(2),(3), (4), (6) and (7).
RD's Decision at 11.
Footnote # 6 for 57 FLRA No. 39
The Statute, in part, defines a supervisor as:
[A]n individual employed by an agency having authority in the interest of the agency 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.
5 U.S.C. § 7103(a)(10).
Footnote # 7 for 57 FLRA No. 39
We construe this as a claim that the Regional Director failed to apply established law. 5 C.F.R. § 2422.31(c)(3)(i).
Footnote # 8 for 57 FLRA No. 39
Member Wasserman notes that the Regional Director found that the civilian personnel office at Sheppard AFB is "responsible for most day to day personnel and labor relations matters" for employees at the Detachment. RD's Decision at 5 (emphasis added). In light of this finding, it is unclear what the Regional Director meant specifically when he said, without any supporting references, that the Commander of the Detachment "retains a great deal of discretion" in establishing day-to-day working conditions for employees at the Detachment. However, as Member Wasserman is of the view that under this criterion, the on-site supervisor need only to be able to generally administer the day-to-day operations of the installation, as the Commander here does, he does not consider this ambiguity to be of significance to the outcome of this case. See United States Dep't of Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Il., 48 FLRA 620, 636 (1993).
Footnote # 9 for 57 FLRA No. 39
We also note that the small size of the proposed unit is not dispositive in determining whether or not the proposed unit is appropriate. United States Dep't of the Air Force, Edwards Air Force Base, Ca., 35 FLRA 1311, 1314 (1990). Instead, the size of the unit is just one factor that the Authority considers in determining whether a proposed unit is appropriate under the Statute. Id.
Footnote # 10 for 57 FLRA No. 39
We note, however, that the Agency is free to file a petition to clarify the unit, under § 2422.1(b), if the duties performed by the employee changed following the hearing. See Federal Trade Commission, 35 FLRA 576 (1990).