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59 FLRA No. 133
DEPARTMENT OF THE AIR FORCE,
LACKLAND AIR FORCE BASE
SAN ANTONIO, TEXAS
OF GOVERNMENT EMPLOYEES, AFL-CIO
DENYING APPLICATION FOR REVIEW
March 10, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on an application for review filed by the Activity under § 2422.31 of the Authority's Regulations. The Activity seeks review of the Regional Director's (RD) Decision and Order and Direction of Election, in which the RD found the Petitioner's proposed unit appropriate and ordered an election. No opposition to the application was filed.
For the reasons set forth below, we conclude that the Activity has failed to establish that review of the RD's decision is warranted. Accordingly, we deny the application for review.
II. Background and RD's Decision
The Petitioner filed a representation petition seeking an election to represent all non-appropriated fund (NAF), non-supervisory employees of the Activity's Services Division. At the hearing, the Activity contended that the Services Division employees should be split into three separate bargaining units for representational purposes, rather than the single bargaining unit sought by the Petitioner.
In considering the appropriateness of the Petitioner's proposed unit, the RD set out the standard contained in § 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute). [n1] The RD explained that "[i]n order for a unit to be considered appropriate, all three criteria -- community of interest, effective dealings, and efficiency of agency operations --must be met." RD's Decision at 24. The RD further explained that "[t]he Statute does not, however, require that the proposed unit be the only appropriate unit or the most appropriate unit." Id.
Turning to the first criterion, the RD concluded that the employees included in the Petitioner's proposed unit share a community of interest. Specifically, the RD found that the affected employees are "subject to the same chain of command" and health and personnel policies and that they all "support the same . . . mission[.]" Id. at 26. The RD further found that the employees are geographically co-located and share such things as parking, child care services, and eating and entertainment facilities. According to the RD, these factors outweigh the facts that there is "a small degree of interchange between NAF employees in the performance of their duties" and that "a number of working conditions do not match up across the board[.]" Id.
With respect to the second criterion, the RD found "no evidence on which to find that the petitioned-for unit would impede effective dealings with the Activity." Id. at 27. In this regard, the RD found that NAF employees' personnel files are co-located and that NAF employees are serviced by the same human resources and payroll offices. According to the RD, "the record established that no lines of authority had been established for carrying out labor relations with the petitioned-for unit[.]" Id. at 27. Therefore, she concluded that the proposed unit would promote effective dealings.
As to the third criterion, the RD found that the proposed unit would promote efficiency of the Activity's operations. In this connection, the RD found "no reason why the Activity would need to establish any new organizational structures to accomplish labor relations." Id. In addition, she found that the proposed unit would "eliminate the possibility of fragmenting into separate units a group of employees that share a strong community of interest." Id. Accordingly, she concluded that the proposed unit would promote efficiency of the Activity's operation.
Rejecting the Activity's argument to the contrary, the RD determined that flexible, probationary, and temporary [ v59 p740 ] employees with reasonable expectations of continued employment of more than 90 days should be included in the unit. [n2] According to the RD, regular and flexible employees have different entitlements to benefits and only regular employees are guaranteed a minimum number of hours of work. Nevertheless, she found that "these facts do not negate the overwhelming community of interest shared by the regular and flexible employees alike, or management's ability to deal with both categories of employees as a single group." Id. at 29. The RD also found that flexible, probationary, and temporary employees have a reasonable expectation of continued employment. Consequently, the RD concluded that these employees share a community of interest with regular employees and that including them in the unit would promote effective dealings and efficiency of Activity's operations. Id.
Based on the foregoing, the RD concluded that the Petitioner's proposed unit was an appropriate unit and that it should include flexible, probationary, and temporary employees who have reasonable expectations of continued employment of more than 90 days. The RD ordered an election.
III. The Activity's Application for Review
The Activity disputes the RD's representation determination on three grounds.
First, the Activity argues that the Services Division would more appropriately be divided into three units that correspond to its three sections: the Family Member Program, the Business Operations Unit, and the Lodging Operations Unit. It claims that these units have distinct missions and perform "three entirely different functions." Application for Review at 52-53. In particular, the Activity asserts that there is "virtually no commingling among the employees of the three organizations." Id. at 74. According to the Activity, employees in the Family Member Program are required to have "more education, more training, and more background checks[,]" id. at 54, as distinguished from the Business and Lodging Operations, which have a goal of making a profit. See id. at 61, 72. The Activity also asserts that the three units are governed by different rules and regulations. See, e.g., id. at 56, 67, 72. To support its claim that three separate units are appropriate, the Activity cites several Authority decisions in which it claims the Authority has found units appropriate that were composed of "numerous occupational groups" such as "firefighters, security officers, air traffic controllers, nurses and professionals." Id. at 46.
Second, the Activity argues that "the unit proposed by the Petitioner would not constitute an appropriate unit" because "the Services Division is made up of three distinct functional groups of employees." Id. at 80. In this regard, the Activity argues that "[t]here is no integration as a general rule among the three organizations." Id. at 82. According to the Activity, with a single unit, "it would be impossible" to bargain over matters such as uniforms or dress codes, hours of work, duty assignments, overtime callback procedures, and training requirements. See id. at 80. The Activity also argues that managers may become confused about which contract provisions apply to which employees. Based on these arguments, the Activity disputes the RD's conclusions that the employees included in the petition share a community of interest and that including them in a bargaining unit would promote effective dealings and efficiency of the Activity's operations.
Finally, the Activity argues that flexible employees should be excluded from the proposed unit because they do not work a regular schedule, see id. at 75, and because they have little or no career opportunity. See id. at 14. The Activity also argues that probationary employees should be excluded because "they are subject to removal at any given time basically at the convenience of the organization." Id. at 78. According to the Activity, "it is illegal for probationary employees to be covered by a collective bargaining agreement that covers the separation of probationary employees." Id. at 83-84 (citing NTEU v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988)).
IV. Analysis and Conclusions
The Activity does not specifically rely on any of the grounds for review that are set forth in § 2422.31(c) of the Authority's Regulations. [n3] However, the Activity challenges the RD's legal conclusion that the proposed unit is appropriate under § 7112(a) of the Statute. We, therefore, construe the Activity's application as raising a claim that the RD failed to apply established law. [ v59 p741 ]
A. The RD Did Not Fail To Apply Established Law by Concluding that the Petitioner's Proposed Unit Is Appropriate Under § 7112(a) of the Statute
In determining whether a petitioned-for unit is appropriate under § 7112(a) of the Statute, the Authority considers whether the unit would: (1) ensure a clear and identifiable community of interest among employees in the unit; (2) promote effective dealings with the agency involved; and (3) promote efficiency of the operations of the agency involved. See, e.g., Defense Mapping Agency, Aerospace Ctr., St. Louis, Mo., 46 FLRA 502, 509 (1992). A proposed unit must meet all three appropriate unit criteria in order to be found appropriate. See Dep't of the Interior, Nat'l Park Serv., Lake Mead Nat'l Recreation Area, Boulder City, Nev., 57 FLRA 582, 584 (2001). Determinations as to each of these three criteria are made on a case-by-case basis. See United States Dep't of the Navy, Fleet and Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 960 (1997) (FISC). The Authority has set out factors for assessing each criterion, but has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. See AFGE, Local 2004, 47 FLRA 969, 972 (1993) (Local 2004).
The Activity's initial objection to the RD's decision is that three separate units would be more appropriate than the unit the Petitioner seeks and the RD found to be appropriate. However, as the RD explained, the relevant determination in this case is "the appropriateness of the unit sought by the Petitioner." RD's Decision at 2. In this regard, the Authority's precedent holds that a proposed unit need not be the "most appropriate" or the "only appropriate" unit in order to be an appropriate unit under the Statute. Local 2004, 47 FLRA at 973. Consequently, the Activity's insistence that "three units would be more effective" than one does not provide a basis for concluding that the Petitioner's proposed unit is not appropriate or for overturning the RD's decision. Application for Review at 79.
In addition to its claim that three units would be more appropriate, the Activity objects to the RD's decision that the proposed unit is appropriate. As fully explained below, we conclude that the RD did not fail to apply established law in concluding that the proposed unit is appropriate.
1. Community of Interest
In order to determine whether employees share a clear and identifiable community of interest, the Authority examines such factors as whether the employees in the proposed unit are a part of the same organizational component of the agency; support the same mission; are subject to the same chain of command; have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same personnel office. See United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 47 FLRA 602 (1993). In addition, factors such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation may be relevant. See FISC, 52 FLRA at 960-61 and cases cited therein.
Here, the RD found only a small degree of interchange between the affected employees in the performance of their duties, and she found some variance in the employees' working conditions. However, the RD found that the affected employees are subject to the same chain of command and health and personnel policies, and that they share parking, child care services, and eating and entertainment facilities. The RD also found that the affected employees support the same mission and are geographically co-located. These findings support the RD's conclusion that the affected employees share a community of interest, consistent with the Authority's precedent. See, e.g., United States Securities and Exchange Comm'n, Wash., D.C., 56 FLRA 312, 316 (2000) (finding consolidated nation-wide unit appropriate where RD found that all employees support same mission and are subject to same personnel policies).
The Activity disputes this finding, arguing that there is virtually no commingling among the affected employees and that the Services Division consists of three distinct groups of employees that perform different [ v59 p742 ] duties. The Activity relies on Authority precedent finding appropriate units structured around a functional grouping of employees who possess characteristics and concerns limited to that group to support its argument. See, e.g., Dep't of the Navy, Naval Station, Norfolk, Va., 14 FLRA 702, 704 (1984) (Naval Station). However, the Activity's reliance on this precedent is misplaced because the Authority has never held that appropriate units must include only employees who share functions or occupations. Indeed, in Naval Station, where the Authority held that a unit of firefighters was appropriate under § 7112(a) of the Statute, the Authority also held that these same firefighters "may appropriately be included in the comprehensive, Activity-wide unit . . . ." Id.
As explained above, the RD considered the level of interaction among the employees and the varying duties performed by them. Nevertheless, she found that these considerations were outweighed by other factors, such as the employees' shared location, mission, and chain of command. The RD was not bound to weigh any one factor more heavily than another, see Local 2004, 47 FLRA at 972, and the Activity does not dispute the RD's findings regarding the other factors. Consequently, the Activity has not provided a basis to conclude that the RD erred in her conclusion that the affected employees share a community of interest.
2. Effective Dealings
The effective dealings criterion pertains to the relationship between management and the exclusive representative selected by the proposed unit. See FISC, 52 FLRA at 961. The factors bearing on this criterion include: the past collective bargaining experience of the parties; the locus and scope of authority of the personnel 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. Id.
The RD found that the affected employees' personnel files are jointly located and that the employees are all serviced by the same human resources and payroll offices. She also found that there are no established lines of authority to conduct labor relations. The Activity does not dispute these findings. Indeed, the Activity agrees that there is "no pattern or history of a unit as proposed by the Petitioner for labor relations at Lackland AFB." Application for Review at 84. Nevertheless, the Activity insists that it would be "impossible" for the parties to bargain over certain matters, such as training and uniforms. The Activity has not provided any evidence or support for this contention. Moreover, the RD specifically found that "[n]o evidence was offered to show that employees would not be able to negotiate with the same officials who exercise authority over personnel decisions." RD's Decision at 27. Consequently, we conclude that the Activity's arguments do not demonstrate that the RD erred in finding that the proposed unit would promote effective dealings.
3. Efficiency of Operations
The efficiency of operations criterion pertains to whether the structure of the bargaining unit bears a rational relationship to the operational and organizational structure of the agency. See Miss. Army Nat'l Guard, Jackson, Miss., 57 FLRA 337, 342 (2001). The RD found "no reason why the Activity would need to establish any new organizational structures to accomplish labor relations" and the Activity does not provide any such reasons. RD's Decision at 27. In addition, although the Activity insists that three units would be "more effective" than one, it does not make any claims that its operations would be impaired if there was only one bargaining unit. Application for Review at 79. Consequently, the Activity has not demonstrated that the RD erred in finding that the proposed unit would not impede the efficiency of operations.
B. The RD Did Not Fail To Apply Established Law by Including Flexible, Probationary, and Temporary Employees In the Appropriate Unit
The Authority has found that various classes of employees, other than regular or permanent employees, may be included in bargaining units with regular or permanent employees, so long as they share a community of interest with the regular or permanent employees. See, e.g., United States Dep't of the Treasury, United States Mint, 32 FLRA 508 (1988) (including certain temporary employees in the bargaining unit); see also United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Nat'l Marine Fisheries Serv., N.E. Region, 24 FLRA 922 (1986) (temporary intermittent observers with 1-year appointments extendable by 3 years included in bargaining unit with permanent part-time observers). When determining whether such employees share a community of interest with permanent employees, the Authority considers whether the employees have a reasonable expectation of continued employment. See United States Army Eng. Activity, Capital Area, Fort Myer, Va., 34 FLRA 38, 42 (1989). The Authority also will consider other factors. For example, the Authority has found that temporary employees who (1) held 6-month appointments which could be renewed; (2) shared the same general supervision, [ v59 p743 ] work schedules, office conditions and common working environment with other bargaining unit employees; (3) had regular and frequent contacts with other unit employees; and (4) performed substantially the same duties as other permanent unit employees, had a clear and identifiable community of interest with the other employees in the unit and that their inclusion in the unit would promote effective dealing with, and efficiency of the operations of, the activity. See United States Small Business Admin., Lower Rio Grande Valley Dist. Office, 16 FLRA 180, 181 (1984).
In concluding that flexible, probationary, and temporary employees are included in the appropriate unit, the RD found that these employees have the same conditions of employment, services, and requirements as regular employees. In addition, the RD explained that "[e]mployees who have a reasonable expectation of continued employment beyond a defined, brief period (such as 90 days), are routinely found to be appropriately included in bargaining units with other similarly situated employees." RD's Decision at 29 (citing United States Dep't of the Air Force, 90th Missile Wing (SAC), F.E. Warren Air Force Base, cheyenne, Wyo., 48 FLRA 650 (1993)). The RD, found that the flexible and probationary employees at issue have reasonable expectations of employment of more than 90 days, and that they, along with the temporary employees who have a reasonable expectation of employment of more than 90 days, share a community of interest with regular employees. Moreover, according to the RD, including flexible, probationary, and temporary employees in the bargaining unit would promote effective dealings and efficiency of agency operations. The RD's findings are consistent with longstanding Authority precedent finding it appropriate to include various non-regular employees in bargaining units with regular employees. See Fort Buchanan Installation, Club Magmt. System, Fort Buchanan, P.R., 9 FLRA 143 (1982) (on-call and intermittent employees with reasonable expectancy of continued employment shared community of interest with regular full-time employees and including them promotes effective dealings and efficiency of agency operations).
The Activity has not offered any evidence to rebut the RD's factual findings, which support his conclusion that flexible, probationary, and temporary employees share a community of interest with regular employees and that including them in the bargaining unit would promote effective dealings and efficiency of agency operations. In this connection, although the Activity accurately asserts that flexible employees do not work regular hours and that probationary employees may not grieve termination actions, these facts, standing alone, do not indicate that such employees do not share a community of interest with regular employees. Moreover, although probationary employees may not challenge their separations under a negotiated grievance procedure, there is no basis for finding that they may not be included in a bargaining unit or covered by a collective bargaining agreement for other purposes. Accordingly, the Activity has not demonstrated that the RD failed to apply established law by including these employees in the bargaining unit.
The Activity's application for review is denied.
Footnote # 1 for 59 FLRA No. 133 - Authority's Decision
As relevant here, 5 U.S.C. § 7112(a) provides that "[t]he Authority . . . 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 # 2 for 59 FLRA No. 133 - Authority's Decision
Flexible employees are "employees whose schedules vary based on operational needs and who . . . are not guaranteed any number of hours." RD's Decision at 5; cf. 5 C.F.R. § 340.403 (intermittent employment is performed when the nature of the work is sporadic and unpredictable so that a tour of duty cannot be regularly scheduled in advance). Probationary employees are employees whose employment is subject to a probationary period. See 5 C.F.R. § 315.801. Temporary employees are employees that are hired to fill positions for a short duration of time, usually no longer than one year. See id. at § 316.401.
Footnote # 3 for 59 FLRA No. 133 - Authority's Decision
Section 2422.31(c) provides, in pertinent part, that the Authority may grant an application for review 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.
5 C.F.R. § 2422.31(c).