34:0392(73)CU - SBA and AFGE LOCAL 2532 AND COUNCIL 228, AFL-CIO -- 1990 FLRAdec CU
[ v34 p392 ]
34:0392(73)CU
The decision of the Authority follows:
34 FLRA NO. 73
U.S. SMALL BUSINESS ADMINISTRATION
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2532 AND COUNCIL 228, AFL-CIO
(Labor Organization/Petitioner)
3-CU-80025
ORDER DENYING APPLICATION FOR REVIEW
January 19, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for
review (application) filed by the Petitioner, American Federation
of Government Employees, Local 2532 and Council 228, AFL - CIO
(the Union) under section 2422.17(a) of the Authority's Rules and
Regulations. The application seeks review of the Regional
Director's Decision and Order on Petition for Clarification of
Unit. The U.S. Small Business Administration (the Agency) filed a
response to the application for review.
The Union filed the petition for clarification of unit (CU)
seeking to clarify the nationwide consolidated unit of
professional and nonprofessional employees of the Agency located
at its Central Office and Regional and District Offices. American
Federation of Government Employees (National Union), which is the
certified exclusive representative of the consolidated nationwide
unit, authorized the filing of this petition by the Union as its
agent. The petition sought to include in the unit employees of:
(1) the Office of Inspector General (OIG); (2) the Disaster Home
Loan Service Centers, with certain exceptions; (3) the Office of
Civil Rights Compliance (OCRC); and (4) the Disaster
Assistance Division (DAD), including the four Disaster Area
Offices.
The Regional Director concluded that: (1) the employees of
the OIG subject to the petition should be excluded from the
existing consolidated unit; (2) the employees of the Disaster
Home Loan Service Center located in New York, New York should be
included in the existing unit; (3) employees of the OCRC subject
to the petition should be included in the unit; and (4) the
nonsupervisory cadre and temporary employees of the DAD should be
excluded from the existing unit.
The Union's application seeks review of the Regional
Director's decision to exclude from the unit the employees of the
Office of Inspector General and the Disaster Assistance Division
who are subject to the petition on the grounds that: (1) the
Regional Director's decision is a departure from Authority
precedent; (2) the conduct of the hearing, and rulings made in
connection with the hearing, resulted in prejudicial error; and
(3) the Regional Director's decisions on several factual issues
are clearly erroneous.
Inasmuch as the Authority had two vacancies when this
application was received, Acting Chairman McKee issued an Interim
Order on July 19, 1989, directing that consideration of the
application be deferred until further notice. The Interim Order
preserved the parties' rights under the Statute to Authority
consideration of the Regional Director's decision.
The Authority now considers the Union's application. For the
reasons discussed below, the application is denied.
II. Background and Regional Director's Decision
The National Union is the exclusive representative of a
nationwide consolidated unit of professional and nonprofessional
employees of the Agency located at its Central Office and
Regional and District Offices.
Review is sought of those findings of the Regional
Director's decision which exclude from the existing unit
employees of the Office of Inspector General and certain
employees of the Disaster Assistance Division.
A. Office of the Inspector General
The Regional Director found that the OIG employees must be
excluded from the established unit. He based this
conclusion on his findings that: (1) the OIG employees constitute
a functionally distinct group of employees who share a community
of interest separate and distinct from the employees in the
existing bargaining unit, and their inclusion in the existing
unit would not promote effective dealings or efficiency of agency
operations; and (2) to include OIG employees in the established
unit with other Agency employees would create an inherent
conflict of interest because OIG employees function as internal
"policemen" vis-a-vis Agency employees.
As to the auditors in the OIG, the Regional Director found
that they must be excluded on the additional ground that they are
engaged in investigation and audit functions relating to the work
of individuals employed by the Agency and that such functions are
within the scope of the exclusion set forth in section
7112(b)(7). 1
In regard to the support and clerical employees of the OIG
sought to be included, the Regional Director found that their
function "are an inextricable part of the process of auditing and
investigating" and that these employees have access to sensitive
records concerning Agency employees. Regional Director's decision
at 10.
B. Disaster Assistance Division
The Regional Director decided that employees of the DAD
located at the Agency's Central Office in Washington, D.C. and at
the Agency's four Disaster Area Offices (DAOs) located at Fair
Lawn, New Jersey; Atlanta, Georgia; Grand Prairie, Texas; and
Sacramento, California, should be excluded from the unit. He
noted that the DAD employees have never been included in the
bargaining unit, and concluded that working conditions for the
DAD employees are significantly different from those of unit
employees. In so finding, he distinguished United States Small
Business Administration, Lower Rio Grande Valley
District Office, 16 FLRA 180 (1984), argued by the Union as
dispositive of this case. The Regional Director noted that
although certain temporary employees were included in a
consolidated unit in that case, they were functionally and
geographically integrated with the Agency's field office
structure, whereas here the DAD is outside of the Agency' field
structure both organizationally and in terms of office
location.
III. Application for Review
The Union asserts that the Regional Director's decision to
exclude employees of the OIG and the DAD should be reversed. It
argues that review should be granted of the Regional Director's
decision in regard to both groups of employees because: (1)
extraordinary circumstances exist that raise a substantial
question of law because of an absence of or departure from
Authority precedent; (2) the conduct of the hearing and rulings
made at the hearing resulted in prejudicial error; and (3) the
Regional Director's decision is erroneous on several substantial
factual issues.
No review is sought of the Regional Director's decision that
employees of the Disaster Home Loan Service Center, New York, New
York, and certain employees of the OCRC, are included in the
existing unit.
A. Employees of the Office of Inspector General
As to the first ground, the Union asserts that exclusion of
OIG employees in other than investigative positions is a
departure from Authority precedent as section 7112(b)(7) of the
Statute has been applied only to investigative employees of an
Inspector General Office.
As to the second ground, the Union asserts that the conduct
of the hearing or a ruling made in connection with the proceeding
resulted in prejudicial error. It bases this claim on an
assertion that a full record was not developed on its contention
that certain support employees previously able to use the
negotiated grievance procedure would now be prohibited from doing
so as a result of the unit determination.
As to the third ground, the Union alleges a variety of
factual errors and asks the Authority to either reverse the
conclusions of the Regional Director, or remand the case for the
purpose of permitting the introduction of certain documents
offered by the Union subsequent to the close of the hearing.
B. Employees of Disaster Assistance Division
As to the first ground, the Union argues that exclusion of
DAD employees because their working conditions are significantly
different from those of unit employees and they do not share a
community of interest with unit employees is a departure from
Authority precedent. The Union further argues that the Regional
Director departed from Authority precedent by failing to rule on
the status of one employee, thereby causing that employee's
grievance to be held in abeyance.
As to the second ground, the Union asserts that the Regional
Director committed prejudicial error by failing to rule on the
one employee's status, and by excluding employees from the unit
who will thereby be precluded from utilizing the negotiated
grievance procedure.
As to the third ground, the Union cites numerous examples of
allegedly erroneous factual findings which it asserts can be
remedied by reopening the record for the purpose of permitting
introduction of certain documents the Union offered subsequent to
the close of the hearing.
IV. Response to Application for Review
The Agency asserts that the application should be dismissed
because the president of the Local Union has no standing to file,
and the National Union, the certified exclusive representative,
has neither adopted the application nor filed one on its own
behalf. The Agency notes that on March 24, 1989, the president of
the National Union informed members of Council 228 that he was
placing the Council in trusteeship based on alleged improprieties
of the council. By letter that same day, the National Union
president notified the Agency that it was to deal with the
newly-appointed trustee in all matters concerning the Council and
the employees it represents. The trustee notified the Agency that
although the incumbent president of Local 2532 would remain in
office, he no longer would represent Council 228. According to
the Agency, "(a)lthough the National AFGE was on notice of the
Local's (application for review), to this date it neither has
filed its own AFR nor adopted that of the Local." Agency Response
to Application for Review at 4. The Regional Director's decision
in this case was issued March 31, 1989.
In the alternative, the Agency asserts that the application
should be dismissed because it does not meet the
regulatory requirements for granting an application but, rather,
amounts only to disagreement with the Regional Director's
decision. The Agency further argues that the Regional Director's
decision is correct on the merits, and that the application
"consists largely of unsup(p)orted disagreement with the RD's
findings of fact and conclusions of law, relying on the body of
the Local's AFR, which is identical to the Post - Hearing Brief."
Id. at 28.
V. Standing To File
The Agency asserts that the application should be dismissed
because it was filed by the president of the Local Union, and the
National Union has neither adopted the application nor filed one
on its own behalf. The Agency argues that: (1) only the National
Union has standing to file because it is the exclusive
representative, and (2) the Local Union president has no standing
to file because the Local Union is in trusteeship.
The Authority's Rules and Regulations provide that a "party"
may file an application for review. 5 C.F.R. 2422.17(a). As
pertinent here, party means any person filing a "petition." 5
C.F.R. 2421.11(a)(1).
The Agency asserts that the Local Union cannot file an
application because the National Union is the exclusive
representative, and therefore only the National Union can be a
party. However, it is undisputed that the National Union
authorized the Local Union to file the petition for clarification
of unit in this case on behalf of the National Union. 2 The
application for review of the Regional Director's decision is a
continuation of the case, and there is no indication that the
National Union revoked its authorization of the Local Union to
act on its behalf in this matter.
The assertion that the application must be dismissed because
the papers were actually filed by the Local Union president also
is without merit. Approximately one week before the Regional
Director issued his decision on the petition, the National Union
notified the Agency that the Local Union was being placed in
trusteeship, and that the Agency should deal with the trustee.
However, there is no indication that the National Union, by
placing the Local Union in trusteeship, revoked the Local Union
president's authority to act on its behalf for the
purpose of filing papers in this case before the Authority.
A Union has the right to designate its representative when
fulfilling its responsibilities under the Statute. American
Federation of Government Employees, Local 1738, AFL - CIO, 29
FLRA 178, 188 (1987). The National Union had timely notice of
the filing of the application for review in this case and has not
disavowed or repudiated the application. Furthermore, the Agency
does not suggest that the National Union is in any way prejudiced
by the filing of the application, or that the application
conflicts with the interests of the National Union or the
employees whom the National Union is certified to represent.
In view of these findings, we conclude that the application
is properly before the Authority. Therefore, we will consider the
Union's arguments in support of its application for review of the
Regional Director's decision.
VI. Discussion
We conclude, for the reasons set forth below, that no
compelling reasons exist within the meaning of section 2422.17(c)
of the Authority's Rules and Regulations for granting the
application for review. 3 The application does not meet any of
the grounds warranting review of the Regional Director's decision
under section 2422.17(c).
A. Employees of the Office of Inspector General
1. The Regional Director's Decision That OIG Employees Must
Be Excluded From the Existing Nationwide Unit Is Consistent With
Authority Precedent
We reject the Union's assertion that OIG employees share a
community of interest with unit employees sufficient to warrant
their inclusion in the unit. Rather, we find, in agreement with
the Regional Director, that employees of the OIG sought by the
petition do not share a community of interest with employees of
the nationwide consolidated unit because the OIG has a separate
and distinct mission; the employees are in the OIG's separate
competitive area for purposes of reduction-in-force; and they are
under separate overall supervision which is wholly independent
and apart from other portions of the Agency. Therefore, the
Regional Director determined, and we agree, that these employees
constitute a functionally distinct group and share a community of
interest separate and distinct from employees in the nationwide
consolidated unit.
We also find in agreement with the Regional Director that
having OIG employees in the unit would create an inherent
conflict of interest because of their role vis-a-vis other Agency
employees.
These findings of the Regional Director do not constitute
departures from Authority precedent as claimed by the Union. See,
for example, U.S. Department of Labor, Office of Inspector
General, Region I, Boston, Massachusetts, 7 FLRA 834 (1982). See
also United States Department of Health and Human Services,
Region VI, Dallas, Texas, 15 FLRA 855 (1984). Rather, the
Union's arguments that OIG employees share a community of
interest with unit employees and that their inclusion in the unit
would not constitute a conflict of interest are merely
disagreement with facts found by the Regional Director, and are
insufficient to form a basis for granting review of a Regional
Director's decision. Department of the Army, Headquarters,
Presidio of San Francisco, Directorate of Engineering and
Housing, San Francisco, California, 33 FLRA 478 (1988)
(Department of the Army, San Francisco).
Cases relied upon by the Union in support of its position
are inapposite. None involve Inspector General offices, and they
illustrate propositions which are supported by specific factual
situations which are clearly distinguishable from the instant
case on additional grounds as well. National Marine
Fisheries Service, Southeast Fisheries Center, Miami, Florida, 3
FLRA 499 (1980), is cited by the Union to support its argument
that a failure to include OIG employees would improperly fragment
highly-centralized personnel management and administrative
operations of the Agency. Application at 39-42. However, unlike
the referenced case, the facts here are that the employees in
question are under separate supervision and authority which is
wholly independent and apart from other portions of the Agency.
The Union's argument is merely disagreement with the facts as
found by the Regional Director in this case. Similarly,
Department of Health and Human Services, Public Health Service,
Food and Drug Administration, Bureau of Drugs, 11 FLRA 687
(1983), cited by the Union, stands for the proposition that
slightly distinguishable factors are insufficient to support a
finding that groups of employees do not share a community of
interest. However, the facts relied upon by the Regional Director
in this case are more compelling and lead to the conclusion that
OIG employees do share a community of interest separate and
distinct from unit employees. Similarly, although the employees
in Defense Logistics Agency, Defense Contract Administration
Services Region Cleveland, Defense Contract Administration
Services Plant Representative Office, Goodyear Aerospace, Akron,
Ohio, 15 FLRA 962 (1984), relied upon by the Union, were so
organizationally integrated as to have lost their separate
identity, such is not the case presented by the facts here.
2. The Regional Director's Decision That Auditors of OIG
Must Be Excluded From the Unit on the Additional Basis of Section
7112(b)(7) Is Consistent With Authority Precedent
In addition to excluding OIG employees in general because
they have a community of interest separate and distinct from
employees in the existing unit and because their inclusion would
create an inherent conflict of interest, the Regional Director
found other specific grounds to exclude the OIG employees. The
Regional Director found that the auditors of the OIG must be
excluded on the specific ground that their investigation and
audit functions relating to the work of individuals employed by
the Agency are within the scope of the section 7112(b)(7)
exclusion, covering duties which affect the internal security of
the Agency.
We reject the Union's contentions that the auditors should
be included in the unit based on: (a) bargaining history; (b)
allegations that other employees included in the unit
perform the same duties as these auditors; and (c) the alleged
failure to meet the requirements of the section 7112(b)(7)
exclusion.
a. Bargaining history is inconclusive as to whether
employees who performed some of these functions prior to the
establishment of OIG were included in the unit. However, the
Regional Director found that subsequent to the establishment of
the OIG, when the Union agreed that all OIG employees were
excluded for reduction-in-force purposes, the master agreement
provided that "(t)he unit of recognition does not include . . .
employees primarily engaged in investigation or audit functions
relating to the work of individuals employed by the Agency."
Article 1, Section 3, quoted by the Regional Director in his
decision at 5.
b. The Union's argument that employees already in the unit
perform the same duties as the OIG auditors is merely
disagreement with facts found by the Regional Director, which is
insufficient as a basis for granting review of a Regional
Director's decision. Department of the Army, San Francisco, 33
FLRA 478 (1988). Further, the unit placement of employees not at
issue is not germane to the question of whether auditors should
be excluded on an internal security basis.
c. The Union argues that to exclude auditors of the OIG
would be a departure from precedent because the section
7112(b)(7) exclusion has been applied only to investigative
employees of an Inspector General office. The Union also
disagrees that the auditors are engaged in investigation and
audit functions to the extent that would require their
exclusion.
The argument that only investigative employees may be
excluded based on section 7112(b)(7) is incorrect on its face,
because that section by its specific language applies to
employees". . . engaged in investigation or audit functions . .
." (emphasis added). Further, as noted above, the Authority has
previously excluded Inspector General employees other than
investigators based on section 7112(b)(7). U.S. Department of
Labor, Office of Inspector General, Regional I, Boston,
Massachusetts, 7 FLRA 834 (1982).
As to the specific finding that the auditors are
sufficiently engaged in the functions described in section
7112(b)(7) to require their exclusion from the unit, the Regional
Director noted that the mission of the OIG includes determining
whether the Agency is properly performing its mission;
performing internal investigations of employee wrongdoing and
fraud; and preventing fraud, waste, abuse and mismanagement in
the Agency's programs. To this end, the employees at issue
perform audits of Agency programs, contracts, operations and
program participants. Among their duties are audits which have
the potential of uncovering employee fraud, misuse of funds or
malfeasance. Further, audit functions related to matters external
to Agency employees may result in investigation of Agency
employees.
As with all questions concerning unit placement, resolution
depends on the specific circumstances of the case. The Union's
argument that the auditors are not engaged in investigation and
audit functions to an extent requiring their exclusion amounts to
mere disagreement with the facts found by the Regional Director,
which, as noted previously, is insufficient as a basis for
granting review. Department of the Army, San Francisco, 33 FLRA
478 (1988).
3. The Regional Director's Decision That Support Employees
of OIG Must Be Excluded From the Existing Nationwide Unit Is
Correct And Has Not Resulted In Prejudicial Error
We reject the Union's argument that support employees of the
OIG should have been included and that it was "prejudicial error"
not to do so based on assertions that employees previously
eligible to use the negotiated grievance procedure would no
longer be able to do so. Such argument refers to (a) employees
allegedly newly-excluded from the unit as a result of the
Regional Director's decision and thus no longer eligible to use
the negotiated procedure, and (b) other employees whose unit
status was not raised but are allegedly affected because they
have the same job titles as support employees in OIG who are now
excluded from the unit.
a. Employees Allegedly Newly - Excluded
It is clear that all OIG employees have been excluded from
the unit at least since the establishment of the OIG in 1978.
Therefore, the Union's argument that the Regional Director's
decision excludes former unit employees is not supported by the
facts. However, even assuming that the Regional Director's
decision excluded former unit employees, the fact that they no
longer would be eligible for certain benefits available to unit
employees is not a ground for claiming that the hearing resulted
in "prejudicial error." Section 2422.17(c) of the Authority's
Rules and Regulations refers to error prejudicing the
outcome of the proceeding or the rights of a party, and not, as
suggested by the argument of the Union, prejudice to an asserted
right of an individual.
Findings on the unit placement factors, set out in section
7112(a)(1) of the Statute, take into account the results which
flow from such unit placement. The effect on certain employees of
the unit determination is not "prejudicial error" within the
meaning of section 2422.17(c)(4) of the Rules and Regulations,
and the Union has not shown that the effect on former unit
employees would be such that the Regional Director's finding that
these employees share a community of interest with OIG employees,
and not with unit employees, is clearly erroneous.
b. Employees Whose Status Was Not Raised But Who Have The
Same Job Titles As OIG Support Employees Excluded By The Regional
Director's Decision
We find without merit, for the reasons discussed above, the
Union's argument that the application should be granted because
the conduct of the hearing as to this issue, and this decision,
are prejudicial to unit employees with job titles identical to
those support employees of OIG who are excluded. Moreover, the
unit placement of the OIG support employees is based solely on
the statutory criteria which measure the relationship of their
conditions of employment to other employees of OIG, and to
employees of the consolidated unit. It does not affect the rights
or status of employees in different parts of the organization,
regardless of their job titles.
4. The Regional Director's Decision Is Not Clearly Erroneous
On Factual Issues Which Prejudicially Affect The Rights Of A
Party
We have reviewed the Union's allegations of numerous factual
errors, and conclude that the Regional Director's decision is
supported by evidence that is uncontroverted. Moreover, in large
part, the Union's assertions as to factual errors merely amount
to disagreement with the Regional Director's findings and
conclusions, which have not been shown to be clearly erroneous or
to have prejudicially affected the rights of any party. Such
contentions do not provide a basis for granting review of the
Regional Director's decision. Department of the Army,
Headquarters, Presidio of San Francisco, Directorate of
Engineering and Housing, San Francisco, California, 33 FLRA 478
(1988).
Finally, the Union argues that the Regional Director's
decision was based on factual errors because he failed to make a
complete and adequate record at the hearing. We find no merit to
this argument, and deny the Union's request to remand the case to
the Regional Director so that the Union may submit additional
evidence. The Union has not shown persuasively how any offered
evidence would affect the outcome of this case. Moreover, the
evidence that the Union claims was improperly excluded was
offered by it on March 29, 1989, more than 5 months after the
close of the hearing and only 2 days before the Regional Director
issued his decision. It is not asserted by the Union that the
evidence was newly discovered or previously unavailable.
B. Employees of Disaster Assistance Division
The Regional Director found that employees of the DAD
located at the Agency's Central Office in Washington, D.C., and
in the four Disaster Area Offices, have working conditions
significantly different from unit employees, and that they do not
share a clear and identifiable community of interest with unit
employees. He found it unnecessary to decide whether employees of
DAD could constitute a separate appropriate unit.
The mission of DAD is to administer the physical and
economic injury disaster loan programs. It delivers this
assistance through its four DAOs, which are located separate from
the Agency's other field offices. The DAOs are staffed with two
categories of employees. A permanent disaster cadre is comprised
of employees who are released to a nonpay status when workloads
decrease. Cadre employees are only guaranteed 6 months' work,
must be available to report for duty within 48 hours of
assignment any place a disaster occurs, and work extensive
overtime when necessary. A second category is temporary
employees, who may be employed for periods from 30 days to 4
years. They are hired for a specific need at a particular
location. These employees may be terminated at any time, must be
available to work extensive overtime, and are not entitled to
certain benefits if employed for less than specified lengths of
time. Cadre and temporary employees are also assigned to the DAD
at the Central Office in Washington, D.C.
Bargaining history discloses that prior to the creation of
the DAD in 1979, employees from a predecessor office
were included in the bargaining unit. Since then, efforts by the
Union to have DAD employees included in the unit have been
unsuccessful.
In concluding that DAD employees do not share a community of
interest with unit employees, the Regional Director noted, among
other things, that the DAD has a unique mission, that no other
component of the Agency has cadre or "on call" employees, that
the DAOs have certain job classifications not found elsewhere in
the Agency, and that significant elements of the working
conditions of DAO employees are unlike those anywhere in the
Agency. Further, the Regional Director based his conclusion on
the fact that the Agency's operations and the jobs of the
employees at issue have changed since the certification of the
consolidated unit and that DAD employees have never been included
in the unit. Finally, he noted that both organizationally and in
terms of office location, DAD is outside of the field structure
which includes unit employees.
The first argument made by the Union in urging review of the
Regional Director's exclusion of employees of the DAD is that his
decision is based on a departure from Authority precedent. The
various points made in support of this argument do not indicate a
departure from precedent by the Regional Director in reaching the
conclusion that DAD employees do not share a community of
interest with unit employees.
The authorities cited by the Union in support of the
argument that the decision departs from precedent are generally
based on facts which do not apply in this case. For example, U.S.
Department of Commerce, National Oceanic and Atmospheric
Administration, National Marine Fisheries Service, Northeast
Region, 24 FLRA 922 (1986), differs from the instant case
because the DAD employees at issue here were found not to have
been in the unit since its formation in 1979. United States
Department of Agriculture, Forest Service, Intermountain Region,
Challis National Forest, 23 FLRA 349 (1986), relied upon by the
Union to support the argument that seasonal supervisors are to be
excluded from a unit only when they are supervising employees is
inapposite. Although some DAD employees might be classified as
seasonal supervisors, it has been determined that the entire
Division must be excluded because it does not share a community
of interest with unit employees.
A final argument that the Regional Director's decision
departs from precedent refers to the unit status of a
Application at I-18. The Union relies on U.S. Small Business
Administration and American Federation of Government Employees,
Local 2532, AFL - CIO, 32 FLRA 847 (1988), which held that
arbitrators may not decide the unit status of a grievant in the
course of resolving the merits of a grievance because the
Authority found that it has exclusive jurisdiction to make
appropriate unit determinations, including the resolution of
questions concerning the bargaining unit status of individuals.
The Union has stated a proposition which does not apply to
the facts of this case. Thus, in concluding that DAD employees
are not appropriately part of the unit, the Regional Director
found that since the creation of DAD in 1979, its employees never
had been in the unit. Therefore, neither the grievant, nor any
other individual who was employed by DAD in 1986 when the
grievance was filed, was in the unit. As this is not a case where
the question remains unanswered, there is no need to remand the
matter to the Regional Director. See Headquarters, XVIII Airborne
Corps and Fort Bragg, Forth Bragg, North Carolina, 34 FLRA No. 6
(1989).
The remaining arguments made by the Union in its application
for review regarding these employees are substantially the same
as those already treated above with respect to the employees of
OIG. For the reasons discussed above, we find no merit to the
arguments that (1) the Regional Director committed "prejudicial
error" by excluding employees from the unit who would thereby be
precluded from utilizing the negotiated grievance procedure; and
(2) the case should be remanded for the purpose of admitting
certain documents in order to build a complete record which would
overcome allegedly erroneous factual findings.
VII. Conclusion
For the foregoing reasons, we conclude that no compelling
reason exists for granting the application for review.
VIII. Order
The application for review of the Regional Director's
Decision and Order on Petition for Clarification of Unit is
denied.
FOOTNOTES
Footnote 1 Section 7112(b)(7) of the Statute provides for
the exclusion from a bargaining unit of: (7) any employee
primarily engaged in investigation or audit functions relating to
the work of individuals employed by an agency whose duties
directly affect the internal security of the agency, but only if
the functions are undertaken to ensure that the duties are
discharged honestly and with integrity.
Footnote 2 Regional Director's Decision at 2 n.2.
Footnote 3 Section 2422.17(c) of the Authority's Rules and
Regulations provides: (c) The Authority may grant an
application for review only where it appears that compelling
reasons exist therefor. Accordingly, an application for review
may be granted only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised
because of (i) the absence of, or (ii) a departure from,
Authority precedent; (2) That there are extraordinary
circumstances warranting reconsideration of an Authority policy;
(3) That the conduct of the hearing held or any ruling made in
connection with the proceeding has resulted in prejudicial error;
or (4) That the Regional Director's decision on a substantial
factual issue is clearly erroneous and such error prejudicially
affects the rights of a party.