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58 FLRA No. 2
DEPARTMENT OF THE TREASURY
BUREAU OF ENGRAVING AND PRINTING
NATIONAL TREASURY EMPLOYEES UNION
ORDER DENYING APPLICATION
August 5, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
The Agency filed an application for review of the Regional Director's (RD's) decision clarifying a bargaining unit to include four positions encumbered by 18 employees. The Union filed an opposition to the Agency's application.
The RD found that the employees, who occupy positions as Procurement Analysts, Contract Administrators, Cost/Price Analysts, and Contract Specialists in the GS-1102 classification series at grades GS-11, 12 and 13, are not professional employees within the meaning of § 7103(a)(15) of the Federal Service Labor-Management Relations Statute (the Statute). More specifically, the RD found that a revised qualification standard for the GS-1102 series, issued by the Office of Personnel Management (OPM) in 1997 to require new hires and those not otherwise grandfathered to meet certain basic educational requirements, did not require the exclusion of the disputed employees from the bargaining unit as professional employees.
The Agency claims that review is warranted because there is an absence of precedent addressing whether employees encumbering positions in the GS-1102 classification series are professional employees under the Statute. The Agency also claims that the RD failed to apply established law by relying on Loral Electronics Systems, 200 N.L.R.B. 1019 (1972), a decision of the National Labor Relations Board (NLRB) that, in the Agency's view, addressed positions whose duties are not analogous to those in this case. In addition, the Agency claims that the parties were harmed when the case was transferred from one regional director to the RD who issued the decision. In that regard, the Agency claims that the RD erred by not being aware of certain matters discussed between the parties and the hearing officer, and thus did not rely on other statutes, such as the Fair Labor Standards Act, in making the unit determinations. According to the Agency, the RD thereby committed a prejudicial procedural error by failing to consider the various instructions and comments made by the hearing officer and by failing to address the issues that the hearing officer had specifically identified as controlling. Finally, the Agency contends that the RD committed a clear and prejudicial error concerning substantial factual matters by considering employees in the aggregate, rather than independently assessing each position.
The application is denied because the Agency has not demonstrated that review of the RD's decision is warranted under 5 C.F.R. § 2422.31(c)(1) or (c)(3), which provides that the Authority may grant an application for review when the application demonstrates that:
(1) The decision raises an issue for which there is an absence of precedent; [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.
In particular, we find that the Agency has not shown that the RD erred in applying OPM's qualification standard to the facts of this case or failed to address changes in the employees' duties. Similarly, the Agency has not demonstrated that the RD erred in relying on NLRB precedent or not considering other statutes in making the unit determination. Finally, the Agency has not established that the RD committed prejudicial procedural errors or errors on substantial factual matters. Particularly in terms of the alleged procedural errors, we note that, under the Authority's Regulations, the hearing officer is authorized to receive evidence into the record, inquire fully into the relevant and material facts and make recommendations to the regional director. See 5 C.F.R. §§ 2422.18 and 2422.21. However, as the Regulations specify, the hearing officer's role is to inquire into the factual matters at issue, and the regional director is fully responsible for resolving the matter in dispute. See 5 C.F.R. § 2422.30. We have reviewed the [ v58 p3 ] record and the Agency's allegations of procedural error and find that the Agency has not demonstrated that the transfer of this case to a different regional director or the RD's treatment of the hearing officer's instructions constituted prejudicial procedural error warranting review.
Accordingly, we conclude that there is no genuine issue warranting review of the RD's decision, and we deny the Agency's application for review.