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57 FLRA No. 109
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
LAKE MEAD NATIONAL RECREATION AREA
BOULDER CITY, NEVADA
FRATERNAL ORDER OF POLICE
FIRST FEDERAL LODGE 1-F
ORDER DENYING APPLICATION FOR REVIEW
November 6, 2001
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on an application for review filed by the Union under § 2422.31 of the Authority's Regulations seeking review of the Regional Director's (RD's) decision denying the Union's petition seeking an election among a unit of law enforcement park rangers. The Activity did not file an opposition.
For the reasons that follow, we find that the Petitioner has not demonstrated that review of the RD's Decision is warranted.
II. Background and RD's Decision
The Petitioner seeks an election among law enforcement park rangers (protection rangers) in the Activity's Lake Mead National Recreation Area, Division of Visitor and Resource Protection (DVRP), Branch of Operations. The RD found that the employees of the DVRP, one of six divisions at Lake Mead, all report to the park superintendent and that the DVRP is comprised of four branches, one of which, the branch of operations, is made up almost entirely of protection rangers. The RD further noted that the proposed unit would consist of 21 permanent GS schedule protection rangers who are currently unrepresented. [n1]
The RD noted that the "question presented . . . is whether a functional unit of protection rangers is an appropriate unit." Decision at 11. In general, the RD determined that protection rangers did share some unique conditions of employment based on their law enforcement duties and a requirement that they be commissioned in order to carry out their law enforcement work. Specifically, the RD noted that protection rangers carry weapons, investigate crimes, arrest individuals, and engage in related law enforcement work. Further, the protection rangers receive specialized training in order to qualify for and maintain their positions. With respect to the commissioning process, the protection rangers are subject to extensive initial background investigations and recurring background checks. The RD also noted that the protection rangers lose their positions if they are convicted of a felony or misdemeanor for domestic violence and may lose their positions if they do not meet certain physical requirements. Finally, protection rangers are allowed to drive special police vehicles that no other employees may use; participate in an enhanced retirement system and receive additional compensation given the inherent dangers associated with their work; may be reimbursed for special liability insurance; are generally held to a higher ethical standard than other employees; are subject to random drug testing; must maintain emergency medical technician certification; and are almost all required to live in the park so that they may respond quickly to emergencies.
However, the RD determined that despite the above, "the weight of the evidence suggests that protection rangers share in a community of interest with other Lake Mead employees" and that protection rangers are functionally and physically integrated with other employees at Lake Mead. Decision at 12. In this regard, the RD examined the conditions of employment shared by both protection rangers and other Lake Mead employees within the park's four districts.
In the first district, the Boulder Basin, the RD determined that protection rangers perform search and rescue operations and fire brigades with other Lake Mead employees, such as maintenance employees, concessionaires and fire crews. Further, the RD found that protection rangers and other employees who work at Callville Bay, within the Boulder Basin, have to live in required occupancy housing. Additionally, at another location within the district, Boulder Beach, protection rangers share common office space with other employees, including an interpretation ranger and a maintenance employee. Furthermore, all Lake Mead employees share a gym located there. Finally, while the RD found that protection rangers generally spend most [ v57 p583 ] of their time in Boulder Beach performing traditional law enforcement duties, the RD also noted that protection rangers have worked with other employees on structural fires, search and rescue missions and installing and maintaining boundary fencing. Id. at 8.
In the second district, the Mojave, the RD found that protection rangers, resource management researchers and maintenance employees live in common housing. At Cottonwood Cove, a location within the district, the RD determined that protection rangers assist maintenance employees in "repair work and confined space entries." Id. The RD also determined that within this district, protection rangers also engage in non-law enforcement duties such as litter cleanup, posting signs, raking out tracks, berming off areas, and maintenance of Native American cultural sites. Furthermore, at a second location in the district, Katherine's Landing, protection rangers share a facility with interpretive staff, and if living onsite, are part of a fire brigade which includes other park employees from concession, maintenance, interpretive and fee collection.
In the third district, the Canyon, protection rangers and other employees also work closely together on certain projects. For instance, in Willow Beach, protection rangers and the maintenance crew have worked with the fish hatchery and both helped to build the new fire station. In Temple Bar, maintenance and protection rangers live in common housing and work in the same building. Moreover, protection rangers there do non-law enforcement type duties such as sign maintenance, fire station and ambulance operations, and are responsible for projects such as burro removal and monitoring cattle operations. Furthermore, in Meadview, the only protection ranger that lives there is partly responsible for "everything" from interpretation to maintenance to search and rescue. Id. at 9.
Finally, in the fourth district, the Northshore, the RD found that in one location, Overton Beach, protection rangers are called upon to protect archeological artifacts, patrol the waters by boat, and handle nearly all the medical calls. In another location, Echo Bay, protection rangers also perform water patrols and sign and fence maintenance and work alongside maintenance employees and a Resource Management Division employee.
Based on this and evidence in the record, the RD found that protection rangers worked with other employees to accomplish the Agency's mission, such as search and rescue (noting that protection rangers have worked with firefighters, the pilot, members of the scuba team and other employees); fire protection; trail, sign and fence maintenance, and other equipment maintenance. Moreover, the RD determined that the protection rangers even when performing law enforcement duties frequently interacted and relied upon dispatchers and criminal investigators. Additionally, the RD determined that all park employees receive servicing from the same personnel office, attend the same employee orientation, and are affected by labor policies and working conditions set by the park superintendent.
The RD also noted that protection rangers and the park's interpretive rangers are both subject to the "Ranger Careers Policy" which, in general, states that all park rangers must be professional resource educators, resource protectors, and multi-skilled specialists. Decision at 10. In this respect, the protection rangers must be able to provide "extemporaneous formal education and on-site resource interpretation to Park visitors." Id.
Furthermore, the RD determined that other employees may also be required to participate in specialized training for their positions, live in the park because they are required to quickly respond to emergencies, pass background checks, meet certain medical requirements to keep their positions, fall within the same enhanced retirement system, and are even required to be commissioned. Additionally, the RD found that should protection rangers be permanently or temporarily medically disqualified, they "can be and have been placed in other Lake Mead positions." Decision at 13.
Based on these findings, the RD concluded that "although the protection rangers have some unique employment issues, the evidence is clear that they share working conditions with other employees of Lake Mead and are functionally and physically integrated with other employees of Lake Mead." Id. at 14, also citing United States Dep't of the Interior, Nat'l Park Serv., Washington, D.C., 55 FLRA 311 (1999) (Interior). As such, the RD concluded that the protection rangers do not have a separate community of interest apart from other employees of Lake Mead.
The RD next concluded that a unit of only protection rangers would not promote effective dealings at Lake Mead. In assessing the impact on the relationship between management and the exclusive representative, the RD determined, based on the above findings, that because the protection rangers' conditions of employment are not sufficiently unique, the proposed unit would not promote effective dealings. The RD also noted that while a unit of only wage grade employees exists at Lake Mead, it is unique in that the union representing that unit is able to negotiate the pay of those employees. Furthermore, the RD found persuasive "the [ v57 p584 ] testimony of another National Park's experience of the protracted dispute between two unions regarding resource allocation, housing." Decision at 14. Accordingly, the RD found under the "totality of the circumstances" that "a unit limited to protection rangers would not promote effective dealings." Id., citing United States Office of Personnel Management, Atlanta Regional Office of Federal Investigations, Atlanta, Ga., 48 FLRA 1228 (1993).
Finally, the RD found that the proposed unit would not "promote efficiency of operations" because, among other things, it would not include other employees within the branch of operations or the DVRP, the dispatchers who assist protection rangers, or other employees who help protection rangers perform law enforcement type duties such as search and rescue. Id. at 15.
Based on the RD's determination that the proposed unit was not appropriate, the RD dismissed the petition.
III. Application for Review
The Petitioner states that "a substantial question of law or policy is raised by the RD's decision because of a departure from Authority precedent." Application at 2. In this respect, the Petitioner argues that the RD determined that the proposed unit failed to constitute the "most" appropriate unit rather than limiting his determination to whether the unit was simply appropriate. Id. at 2, 3, citing Dep't of the Navy, Naval Supply Ctr., Puget Sound, Bremerton, Washington, 53 FLRA 173 (1997). Moreover, the Petitioner argues that the "precedent cited by the RD was inapplicable." Application at 14. It further contends that there is Authority precedent for separating police units based on a community of interest under Library of Congress, 16 FLRA 429 (1984). Id. at 14.
The Petitioner also sets forth its interpretation of how the "effective dealings" criterion applies and argues that a separate unit of protection rangers would not adversely affect the Activity's productivity or resource allocation under an "efficiency of operations" analysis. Application at 3-4, citing United States Dep't of the Navy, Fleet and Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950 (1997) (FISC).
Additionally, the Petitioner argues that the RD committed clear and prejudicial errors concerning a number of substantial factual matters. First, it argues that with respect to the RD's community of interest determination, the RD: (1) improperly discounted testimony of a protection ranger who described a lack of interaction between protection rangers and Lake Mead employees in isolated locations; (2) discounted undisputed testimony from a different protection ranger who testified that he had never engaged in committee activities, computer work, health and safety inspections and that he no longer performed fee collection despite Agency contentions to the opposite; (3) failed to note that AFGE, which represents a number of wage grade employees at Lake Mead, does not want protection rangers included in the unit they represent; and (4) failed to properly consider the differences in conditions of employment of protection rangers from those of other Lake Mead employees. Application at 4-11. With respect to this last argument, the Petitioner restates findings made in the record showing unique conditions of employment for protection rangers, and asserts that the difference between those conditions of employment and those of other employees was improperly minimized.
IV. Analysis and Conclusions
In determining whether a petitioned-for unit is appropriate, the Authority considers whether the unit would: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with the agency; and (3) promote efficiency of the operations of the agency. 5 U.S.C. § 7112(a). See FISC, 52 FLRA at 959. A proposed unit must meet all three appropriate unit criteria in order to be found appropriate. Id. at 961 n.6. Moreover, the Authority does not specify the weight of individual factors to be considered in making appropriate unit determinations. United States Dep't of the Army, United States Army Reserve Command, Fort McPherson, Ga., 57 FLRA 95, 96 (2001); AFGE, Local 2004, 47 FLRA 969, 972 (1993). However, as the Petitioner notes, a proposed unit need not be the most appropriate or only appropriate unit in order to nonetheless be an appropriate unit. Id. at 973.
For a petitioned-for bargaining unit to be appropriate, the employees at issue must have significant employment concerns or personnel issues that are different or unique from those of other employees. See FISC, 52 FLRA at 960; see also, Interior, 55 FLRA at 315.
Nothing in the RD's decision supports the Petitioner's assertion that the RD applied a "most appropriate unit" standard. Rather, the RD cited proper Authority precedent and accurately applied the above precedent in determining that the proposed unit of protection rangers, while having some unique employment conditions, is integrated both functionally and physically with the other employees of Lake Mead. Decision at 15. The RD's determination that the protection rangers do not have significantly unique employment concerns that differ from other employees at Lake Mead (along with the concomitant concern for undue fragmentation) [ v57 p585 ] is supported by the record, as is his determination that protection rangers are both functionally and physically integrated with other employees of Lake Mead. See also Interior, 55 FLRA at 313, 315.
To the extent that the Petitioner argues that under Library of Congress, a different result was required under a community of interest analysis, we do not agree. In Library of Congress the Authority found that there were no unusual circumstances that would warrant the severance of police officers from an existing bargaining unit which included nonprofessional employees. Similarly, this matter is unlike Panama Canal Commission, 5 FLRA 104, 115 (1981) (where police officers had been granted functional unit status) in that here, protection rangers are functionally and physically integrated with other employees because they share significant working conditions and duties with employees in other job categories such as interpretive rangers, criminal investigators, and firefighters. Accordingly, we conclude that there is no basis for granting review of the RD's determination that the petitioned-for unit would be appropriate under the initial community of interest analysis as set forth in FISC.
The Petitioner also argues that the RD's failure to find that the proposed unit would share a clear and identifiable community of interest was based on substantial factual errors. However, as discussed above, the RD specifically noted that certain facts tended to show that the proposed unit might be appropriate, but that considering the record as a whole, the proposed unit was not appropriate. The Petitioner relies on the testimony of two individuals which it claims establishes that the RD committed a clear and prejudicial error concerning a substantial factual matter in his community of interest analysis. However, the testimony of the first witness was limited to his description of the lack of interaction with Lake Mead employees he experienced when he was stationed in more isolated places within the park. On the other hand, an Activity witness testified that protection rangers frequently help other employees and vice versa in performing their duties. Transcript (Tr.) 2-286-87, 2-291. We cannot say that the RD clearly erred in crediting the latter testimony.
Moreover, despite the Petitioner's contention to the contrary, the testimony of the second witness, pertaining solely to his own lack of involvement in committee memberships, software and computer projects, health and safety inspections, and the fact that he no longer collects fees, has little to do with the evidence ultimately relied upon by the RD to determine that protection rangers, for the reasons explained previously, share in a community of interest with other Lake Mead employees. The Activity witness, above, also testified that in his experience it was common to find protection rangers working with other park employees on various committees. Tr. 2-292. Therefore, to the extent that the Petitioner's witness testified only as to his personal experience with these limited activities, there is no showing that the RD erred as to a substantial factual matter.
Furthermore, with respect to the Petitioner's contention that the RD erred by not relying on the fact that AFGE Local 3062 did not want to include protection rangers in their current bargaining unit, such omission does not show that the RD erred as to a substantial factual matter. In this respect, the Petitioner does not show how this fact undermines the RD's determination that protection rangers and employees of Lake Mead share in a community of interest.
Finally, the Petitioner again argues, based on numerous facts from the record, that the protection rangers have unique conditions of employment that warrant finding that the petitioned for unit is appropriate under a community of interest examination. However, the Petitioner does not refer to any specific factual error the RD committed that prejudiced the outcome of the RD's decision. [n2] Given this, and based upon our review of the record which supports the RD's determination, we conclude that the Petitioners's arguments do not demonstrate that the RD committed a "clear and prejudicial error concerning a substantial factual matter," in the context of the RD's review and application of the community of interest standard. Accordingly, as the Petitioner has not shown that the RD made a substantial factual error with respect to his community of interest determination, and the remainder of the Petitioners's arguments pertain to facts that do not have a bearing on this portion of the RD's decision, we will not address those additional factual arguments.
Because we conclude that the RD did not err in his community of interest analysis, and because all three criteria for determining whether a unit is appropriate under § 7112(a) must be met, the Authority denies the Union's Application for Review. In doing so, we do not [ v57 p586 ] address -- or adopt -- the RD's conclusions regarding effective dealings or efficiency of operations in our decision. See Dep't of the Navy, Naval Computer and Telecommunications Area, Master Station-Atlantic Base Level Communications Dep't, Regional Operations Div, Norfolk, Virginia Base Communications Office-Mechanicsburg, 57 FLRA 230, 236 (2001).
The Application for Review is denied.
Footnote # 1 for 57 FLRA No. 109
Footnote # 2 for 57 FLRA No. 109
The Petitioner does argue specifically that the RD failed to take into consideration an "admission" by an Activity witness who it claims testified that the proposed unit was appropriate and that multiple unions in other parks have worked well together. However, the witness testified that the current unit of wage grade employees at Lake Mead was appropriate, as opposed to the petitioned-for unit. Tr. 1-143, 164-65. Moreover, the RD specifically noted that in another park two unions have disputed housing allocations for a number of years. Decision at 14.