United States, Department of Homeland Security, Bureau of Customs and Border Protection (Petitioner/Activity) and American Federation of Government Employees, AFL-CIO (Petitioner/Labor Organization) and National Association of Agriculture Employees (Petitioner/Labor Organization) and National Treasury Employees Union (Petitioner/Labor Organization) and American Federation of Government Employees, National Border Patrol Council, AFL-CIO (Labor Organization/Interested Party) and National Association of Plant Protection and Quarantine Office Support Employees (Labor Organization/Interested Party)
[ v61 p485 ]
61 FLRA No. 92
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF CUSTOMS AND
OF GOVERNMENT EMPLOYEES, AFL-CIO
OF AGRICULTURE EMPLOYEES
OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
(Labor Organization/Interested Party)
OF PLANT PROTECTION
AND QUARANTINE OFFICE
(Labor Organization/Interested Party)
APPLICATION FOR REVIEW
February 3, 2006
[ v61 p486 ]
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 of the Regional Director's (RD's) decision and order (decision) filed by the National Association of Agriculture Employees (NAAE) under § 2422.31 of the Authority's Regulations. The United States Customs and Border Protection (CBP), Department of Homeland Security (DHS or Agency) filed an opposition. NAAE filed a supplemental submission.
The RD found, as relevant here, that: (1) Agriculture Specialists are not "professional employees" within the meaning of § 7103(a)(15) of the Federal Service Labor-Management Relations Statute (Statute); and (2) NAAE's petitioned-for unit--comprised of Agriculture Specialist and Agriculture Technician employees of CBP--was not appropriate.
Having dismissed NAAE's petition, the RD found appropriate the Agency-proposed unit, comprised of all CBP employees, except for employees of the Border Patrol, and ordered separate elections for professional and non-professional employees in that unit between the National Treasury Employees Union (NTEU) and American Federation of Government Employees (AFGE). [n1] The RD also directed that employees be given the choice of neither union.
For the following reasons, we deny NAAE's application for review.
II. Background and RD's Decision
This case arose out of the creation of DHS under the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (HSA or Act). Pursuant to the Act, various functions from other Federal agencies were transferred to DHS. Specifically, the Customs Service was transferred from the Department of the Treasury, the Immigration Service and the Border Patrol were transferred from the Department of Justice, and elements of the Plant Protection and Quarantine (PPQ) office of the Agricultural Plant Health and Inspection Service (APHIS) were transferred from the Department of Agriculture. After the transfer, these functions were grouped organizationally within DHS as a part of CBP. The Border Patrol was transferred intact and remained a separate organizational element within CBP. Former employees of the Customs Service, the Immigration Service, and PPQ were grouped organizationally within CBP in the Office of Field Operations (OFO). Pursuant to the HSA, these employees have, as an additional function, protecting the security of the United States' borders against penetration by terrorists. HSA, Pub. L. No. 107-296, 116 Stat. 2142, § 101.
Prior to their transfer to CBP, and their organization together within OFO, employees of the Customs Service were represented by NTEU in both professional and non-professional units, employees of the Immigration and Naturalization Service were represented by AFGE in both professional and non-professional units, and employees of PPQ were represented by NAAE in both professional and non-professional units. In May 2004, CBP filed a representation petition seeking clarification of the appropriate unit and exclusive representative(s) of employees transferred to CBP. The petition sought a unit including, as relevant here, all professional and non-professional OFO employees. [n2] Subsequently, NAAE filed petitions seeking a determination as to whether a professional unit including Agriculture Specialists, and a non-professional unit including Agriculture Technicians, were appropriate as separate units within CBP. NAAE sought to represent those units. [n3] CBP opposed the unit sought by NAAE and, in addition, [ v61 p487 ] maintained that Agriculture Specialists do not constitute professional employees within the meaning of § 7103(a)(15) of the Statute.
B. RD's Decision
1. RD's Factual Findings
The RD found that the bulk of the employees in the Agency-proposed unit were in OFO, which controls approximately 318 ports of entry. Outlining the organization of OFO, the RD noted, initially, that prior to the creation of CBP, the Customs Service, the Immigration Service, and PPQ each had their own Port Directors, resulting in three directors at most ports. After CBP was established, OFO created 20 field offices or sectors and grouped the various ports within those offices. Each port of entry has a single Port Director, who reports directly to the Director of Field Operations (DFO) for the sector. The DFO is ultimately responsible for clearance of all cargo and passengers in and out of a port of entry. All DFOs report to the Assistant Commissioner for OFO, who reports to the Commissioner of CBP.
The RD also found that, after their transfer to CBP, employees who had been Customs inspectors and Immigration inspectors became CBP Officers; employees who had been PPQ Officers became Agriculture Specialists. These new positions were created on the basis that Customs and Immigration inspectors and PPQ Officers "had certain analysis and inspection tasks in common." Decision at 24. Specifically, as noted by the RD, these employees routinely conducted: (1) a "pre-arrival analysis," reviewing passenger and cargo manifests and identifying persons and things that might need more in-depth review; (2) a "primary inspection procedure," an initial inspection of "all travelers and commercial traffic through the air, sea or land ports:" and (3) a "secondary inspection," limited to those people or items that need closer investigation. Decision at 25.
According to the RD, CBP Officers are the front-line position responsible for carrying out CBP's anti-terrorist mission and are capable of performing the duties of the former Customs inspectors and Immigration inspectors, and, to a limited extent, agricultural inspection functions. They are armed and have the authority to perform a body cavity search without a warrant, take sworn statements, and detain persons.
Also according to the RD, the Agriculture Specialist position was created because CBP determined that "a specialized knowledge of agriculture would be required for the position, and this was more than a normal CBP Officer could acquire or be expected to retain." Id. In this regard, the RD stated that Agriculture Specialists are "the on-site agricultural experts at ports of entry," whose responsibility is to protect the "unintentional introduction of pests or diseases that would be harmful to agriculture," as well as to "focus on the intentional introduction of such items as a means of biological warfare, so-called bioterrorism or agroterrorism." Id. at 26. According to the RD, the Agriculture Technician position was created to provide assistance to Agriculture Specialists and an employee in that position is able to do most of what the Specialists do, with the exception of determining whether products can be allowed into the country.
The RD found that CBP placed CBP Officers and Agriculture Specialists under the Customs Officer Pay Reform Act (COPRA) for purposes of determining overtime and premium pay and required use of the Customs Overtime and Scheduling System to ensure that individual employees do not exceed the statutory cap on overtime earnings. Overtime for both CBP Officers and Agriculture Specialists is controlled by a central scheduling office. The RD also found that CBP Officers and Agriculture Specialists are subject to the National Inspectional Assignment Policy (NIAP), "a policy which provides for considerable flexibility in determining staffing and shifts or tours of duty without bargaining." Id. at 27. Further, the RD found that CBP created one uniform for both CBP Officers and Agriculture Specialists, which includes patches and badges that are similar in style and shape for CBP Officers and Agriculture Specialists. According to the RD, Agriculture Technicians do not wear the blue uniform worn by CBP Officers or a badge like those personnel.
According to the RD, CBP established an extensive training program for CBP Officers and Agriculture Specialists, which included, for all such employees, "cross-training in the areas of customs, immigration[,] and agriculture, as well as anti-terrorism training." Id. at 28. In this regard, the RD found that because CBP Officers and Agriculture Specialists were experienced in close inspection, CBP intended such cross-training to create a "force multiplier" whereby CBP Officers and Agriculture Specialists could make preliminary determinations outside their area of assignment and refer the question to officers who had greater expertise in a particular subject matter. For example, CBP Officers receive training in the fundamentals of agriculture inspection.
Moreover, the RD found that CBP implemented a "unified primary" inspection structure at most ports of entry, which "allows for a single inspection that addresses all customs, immigration and agriculture issues[.]" Id. at 29. Pursuant to this policy, the RD [ v61 p488 ] noted, integrated teams of CBP Officers and Agriculture Specialists have been created to conduct risk assessments on incoming shipments. According to the RD, this policy has also resulted in modifications to the physical layout at ports of entry in order to facilitate integration of the various functions performed by CBP Officers and Agriculture Specialists. The RD found, in addition, that CBP Officers and Agriculture Specialists also share the use of certain equipment, such as x-ray machines, and enter information as to items seized into the same database. He also found that they are present at the same muster at the change of a shift and information relevant to the duties of both CBP Officers and Agriculture Specialists is provided at this time.
According to the RD, there are "no significant differences" in the chain of command for CBP Officers and Agriculture Specialists and Agriculture Technicians. Id. at 30. Specifically, the RD noted, when a given shift is shorthanded, an Agriculture Supervisor may direct the work of CBP Officers and vice versa. The RD also noted that, while the larger ports of entry may have supervisors who direct the work only of Agriculture Specialists or CBP Officers, at the smaller ports of entry a single supervisor may supervise the work of both types of personnel. Beyond the first line of supervision, however, all personnel report to the same Port Director, in a chain of command that goes to the Director of Field Operations and then to the Commissioner of CBP. Moreover, the RD found that all CBP employees are covered by the same pay system, share a common leave policy, receive the same transit subsidy, and are subject to the same annual performance appraisal cycle and Standards of Conduct.
With regard to whether Agriculture Specialists are professional employees within the meaning of § 7103(a)(15) of the Statute, the RD indicated that Agriculture Specialists work solely at ports of entry, enforcing APHIS' regulations, inspecting fruit, plants, seeds, meat and animals, and denying entry to those items prohibited by the regulations. If a Specialist determines that an item is prohibited, he or she must submit his or her findings to an identifier, employed, in the case of plants, by APHIS, and in the case of animals, by the United States Department of Agriculture Veterinary Officer. The identifier has more expertise in pests and diseases and will verify the Specialist's determination. The work of the Specialist is guided by "15 detailed manuals promulgated by APHIS." Id. at 33. The RD found that Specialists may not deviate from the guidance provided by the manuals. According to the RD, the manuals "contain very detailed and specific step-by-step instructions, fairly characterized as if-then decision tables or flow charts applicable to a wide variety of situations" and permitting "little, if any, discretion on the part of" the Specialist. Id.
The RD found that identifiers, who are employees of APHIS, do final identification of a potential pest or disease. Identifiers are trained entomologists or plant pathologists. They are authorized to determine whether a shipment needs some form of treatment, such as fumigation, or must be denied entry. However, the RD noted, Agriculture Specialists have some discretion, under the manuals, to determine the size of the sample of a given shipment that must be inspected.
2. The RD concluded that Agriculture Specialists are not Professional Employees within the Meaning of the Statute
Addressing CBP's claim that Agriculture Specialists are not professional employees within the meaning of § 7103(a)(15) of the Statute, the RD concluded that they are not. In particular, the RD found that Agriculture Specialists do not exercise the requisite discretion in the performance of their duties as is required of a professional employee under the Statute. He found, in this regard, that any discretion exercised was significantly limited. Specifically, although he found that Agriculture Specialists work independently and exercise some discretion in the performance of their jobs, he also found that the APHIS PPQ Manuals (Manuals) that the Agriculture Specialists use in their jobs "significantly prescribe the protocol [that a Specialist] must follow upon encountering an agricultural product." Decision at 37. He also found that "Agriculture Specialists are required to hand off their findings to those with greater expertise before important decisions can be made." Id. He noted in this regard that although Agriculture Specialists must possess a certain level of expertise with respect to agricultural products, the exclusive use made of the Manuals demonstrated the job involved "routine mental work." Id. He indicated that much of the work done by the Specialists was routine paper work in connection with referring a specimen to an identifier or tasks involved in entering data regarding seized items into the Agency database. He concluded, therefore, that the work of Agriculture Specialists is not "predominantly intellectual and varied." Id.
The RD also found that "a substantial part of the work of an Agriculture Specialist consists of manual labor." Id. at 38. In particular, the RD found that Agriculture Specialists spend time "opening luggage or crates, cutting open fruits and vegetables looking for pests, running samples through a grinder or x-ray machine, bagging up seized materials for disposal, and [ v61 p489 ] removing dirt and disinfecting the shoes of the traveling public." Id. Further, the RD described the output or result of Agriculture Specialists' work as "standardized." Id. That is, according to the RD, all Agriculture Specialists, in assessing any agricultural product, should arrive at "the same regulatory decision for the same commodity from the same country of origin." Id.
The RD analogized the work of the Agriculture Specialists to that of the Librarian found not to be a professional employee in United States Army Safeguard Logistics Command, Huntsville, Ala., 2 A/SLMR 582 (1972) (Army Safeguard). According to the RD, like the Librarian, the Agriculture Specialist position requires some specialized education, but most of the work requires the application of established standards, and, for both positions, technical questions are referred to personnel with greater expertise for resolution. Further, the RD found, "a substantial part of the work of an Agriculture Specialist consists of manual labor." Decision at 38.
Based on these findings, the RD concluded that "while Agriculture Specialists at CBP must exercise sound judgment in the performance of their duties, particularly adherence to APHIS regulations as specified in the manuals, they do not exercise the type of discretion and judgment that would make them professionals within the meaning of the Statute." Id.
3. The RD determined that the Unit Requested by NAAE is not an Appropriate Unit
Applying the criteria set forth in § 7112(a) of the Statute, the RD concluded that the unit sought by NAAE did not constitute an appropriate unit. With regard to the community of interest criterion, the RD noted that all OFO employees are subject to the same chain of command, which ends with the Commissioner, and which is separate from the chain of command in the Border Patrol. He noted also that the Commissioner has primary authority to establish conditions of employment for all employees of CBP. Moreover, regardless of their organizational location within CBP, he found that all employees "support CBP's mission of securing the U.S. ports of entry, conducted on the front line by employees in the OFO." Id. at 39.
The RD determined that the NAAE-proposed unit would cause undue unit fragmentation. In particular, he noted that agricultural personnel were "not organizationally distinct within CBP's structure," sharing a common command structure and working side-by-side with CBP Officers and others stationed at a port of entry. Although recognizing that each position within CBP is unique and specialized, he found that all employees work together to implement CBP's common mission. He noted in this connection the integrated units conducting preliminary risk assessments. He also noted that: (1) the schedules of CBP Officers and Agriculture Specialists have been "synchronized to facilitate their working together," id.; (2) information relevant to all functions is shared at a muster of all employees at the beginning of a shift; (3) CBP Officers and Agriculture Specialists wear the same uniform; and (4) all OFO employees generally share the same working conditions. The RD concluded, based on this evidence, that "agriculture personnel have been integrated, both physically and functionally, with the other employees stationed at the ports of entry[.]" Id. at 39-40. In this regard, the RD found that "[t]he similarities between agriculture personnel and all others found at ports of entry far outweigh any differences due to the specialized nature of their positions." Id. at 40.
As to the criterion of effective dealings under § 7112(a), the RD noted that CBP had unsuccessfully tried multi-union bargaining at the headquarters level and concluded that CBP would have difficulty attempting to develop unified conditions of employment in a multi-unit environment. In view of the facts that the Department of Human Resources administers personnel policies for all CBP employees and that there is no separate organizational structure for agriculture personnel, he concluded that a separate unit of such personnel would not promote effective dealings.
Finally, as to the criterion of efficiency of operations, the RD noted that CBP placed all inspection personnel under the operational control of OFO and that attempting to administer separate collective bargaining relationships would require increased costs and hinder productivity. Accordingly, he concluded that a separate unit of agriculture personnel would not promote efficiency of operations within the meaning of § 7112(a).
Based on the foregoing, the RD concluded that the NAAE proposed unit was not appropriate and dismissed NAAE's petition. As noted above, the RD directed elections involving professional employees and non-professional employees in the Agency-proposed unit.
III. Positions of the Parties
A. NAAE's Application for Review
1. Agriculture Specialists are Professional Employees
NAAE states that the personnel designated as Agriculture Specialists by CBP are the same personnel as those known as PPQ Officers when they were [ v61 p490 ] employed by the Department of Agriculture. According to NAAE, the duties of these personnel did not change after they were transferred from Agriculture to CBP. NAAE also states that, within Agriculture, it represented these personnel in a separate professional unit, which had been certified as an appropriate unit of exclusive recognition since 1976. NAAE notes, in this regard, that it continued to represent this professional unit after the employees had been transferred to CBP. NAAE contends that the RD, in his analysis of the status of Agriculture Specialists, "completely ignores the critical lengthy period of acceptance of the `professional' status of the PPQ Officer/Agriculture Specialist by PPQ and CBP." Application for Review (Application) at 4. NAAE asserts that the RD "must explain why he elects to depart from this precedent and past recognition." Id. at 5. NAAE maintains that the RD fails even to discuss whether anything has changed over the last 30 years with regard to Agriculture Specialists' educational qualifications or duties that would warrant changing their professional status. NAAE claims that, for this reason, the RD's decision is arbitrary and capricious.
Further, NAAE asserts that CBP's own classification of the Agriculture Specialist position places those employees in the General Biological Science GS-401 series, which the Office of Personnel Management designates as professional positions. Similarly, according to NAAE, Agriculture Specialists are exempt from the Fair Labor Standards Act because they are classified as professional employees. NAAE contends that the RD makes no attempt to rationalize his different treatment of these employees under the Statute as compared to their status as professionals in these other contexts.
According to NAAE, the RD's decision as to Agriculture Specialists is based on clearly erroneous factual findings that constitute prejudicial error. Specifically, NAAE contends the RD erred in his findings with respect to: (1) the amount of discretion exercised by Agriculture Specialists in performing their duties; (2) whether their work is predominantly intellectual and varied; and (3) whether a substantial part of their work is manual labor.
NAAE maintains, in this regard, that the crux of the RD's error relates to his factual analysis of the Manuals and how they are used by Agriculture Specialists. According to NAAE, an Agriculture Specialist's inspectional work involves a process of: (1) identifying the commodity presented for introduction into commerce; (2) examining the Manuals to determine if the commodity is cleared for entrance; (3) assessing whether any pest or disease is found on the commodity so that it can be cleared for entrance; and (4) if the commodity cannot be cleared, determining whether the pest or disease can be treated so as to allow entrance. NAAE maintains that the Manuals do not address questions as to the identification of commodities, or the enterability or treatment of a commodity, and that these steps require the exercise of judgment. NAAE asserts that Agriculture Specialists must make risk assessments without the guidance of the Manuals and that this process is an intellectual exercise. NAAE also asserts that the Manuals are filled with gaps and ambiguities and the use of the Manuals therefore requires judgment and discretion. In addition, NAAE claims that this description of the process makes clear that Agriculture Specialists exercise extensive discretion both before and after referring questions as to commodities, pests and/or diseases to an identifier. NAAE concludes that the RD's factually erroneous interpretation of the Agriculture Specialist position was prejudicial to the rights of those employees under the Statute.
As to the RD's reliance on Army Safeguard, NAAE contends that there is no precedent for an RD to rely on an Assistant Secretary of Labor for Labor-Management Relations (A/SLMR) decision in a representation case. Moreover, NAAE contends that, because Army Safeguard arose under Executive Order 11491, as amended (Executive Order), and not the Statute, the A/SLMR was not applying § 7103(a)(15). In this regard, NAAE asserts that the Executive Order did not contain a definition of "professional employee" and the decision in Army Safeguard does not disclose the criteria applied by the A/SLMR. In addition, NAAE argues that Agriculture Specialists do not use the Manuals in the same way that the Librarian in Army Safeguard used his or her resource materials and the complexity of the judgments made by Agriculture Specialists exceeds the mechanical classification determinations made by the Librarian. Further, NAAE contends that the decisions made by the Librarian do not entail the same type of consequences to national security as do the decisions made by the Agriculture Specialists.
2. The Unit Petitioned for by NAAE is Appropriate
NAAE contends that Agriculture Specialists, together with Agriculture Technicians, constitute a separate appropriate unit within CBP under the criteria set forth in § 7112(a) of the Statute. NAAE argues that the RD's decision to the contrary is unprecedented as a matter of law and based on "clear, prejudicial error concerning substantial factual matters." Application at 24.
NAAE argues that the RD did not apply the community of interest criterion consistently throughout his decision; specifically, he treated agricultural personnel [ v61 p491 ] of the CBP differently from Border Patrol agents under those criteria. [n4] In this regard, NAAE notes that the RD found significant the fact that the Border Patrol structure transferred intact, with the same chain of command, except for the fact that the chain terminates with the Commissioner of CBP. NAAE contends that although agricultural personnel have the same first-line supervisors and many of the same second-line supervisors after their transfer to CBP, with the only difference at the top of the chain, the RD did not find that factor a sufficient basis for finding a separate community of interest for those personnel. Moreover, NAAE argues that the RD found it significant that Border Patrol agents continued to work in the same place, but ignored the fact that the same thing is true for agricultural personnel. Further, noting the RD's reliance on uniforms and badges, NAAE maintains that there is no explanation as to why uniforms and badges are significant with respect to the existence of a community of interest.
NAAE notes that, like Border Patrol agents, CBP Officers similarly have a law enforcement mission, but Agriculture Specialists do not. According to NAAE, the RD mistakenly ignored that difference in deciding whether agricultural personnel have a separate community of interest. NAAE notes, in addition, the RD's reliance on the fact that CBP Officers and Agriculture Specialists are covered by the same COPRA overtime system, but Agriculture Technicians are not. NAAE argues that, if Agriculture Technicians are forced into a unit with those employees, then they would be covered by a separate overtime system in a manner similar to Border Patrol agents. Finally, NAAE contends that although the RD recognized that Border Patrol agents use different training facilities than CBP Officers in denying a separate unit for agricultural personnel, he failed to recognize that agricultural personnel have a different training center than Customs Officers as well.
NAAE asserts that the RD limited the factors that he considered in examining whether agricultural personnel would constitute a separate appropriate unit and failed to weigh all the relevant factors. In this regard, NAAE asserts that agricultural personnel have significant employment concerns and personnel issues that are separate and distinct from other CBP personnel. NAAE argues that agricultural personnel have: (1) a unique status; (2) distinct educational requirements; and (3) a primary mission of protecting agriculture rather than enforcing customs and immigration laws. In addition, NAAE argues that there is no interchange between Customs Officers and agricultural personnel in the workplace since they inspect different items. NAAE also notes that agricultural inspections are separately funded based on user-fees collected by the Department of Agriculture and disbursed to CBP. NAAE contends that the RD ignored factors that it raised before him and, thus, was selective in the factors that he emphasized in making his appropriate unit determinations, rather than weighing all the factors and assessing the totality of the circumstances.
NAAE also asserts that the RD should have assessed whether agricultural personnel have a community of interest among themselves, rather than evaluating whether they have a community of interest with the rest of OFO. According to NAAE, under Authority precedent, where there are "competing unit representation petitions, claiming conflicting scopes of their respective proposed appropriate units," the proper course is to take up the petition that would preserve the status quo first, namely, NAAE's petitions, "before analyzing CBP's broader petition that will, if granted, disrupt the representational status quo." Id. at 39-40 (citing United States Dep't of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328 (2000) (Commander, Naval Base)). NAAE maintains that the RD's "blended `appropriate unit' analysis" deprived NAAE a "full and fair opportunity" to have its proposed units considered separately and apart from CBP's proposed unit. Id. at 40.
NAAE also disputes the RD's analysis under the "effective dealings" and "efficiency of operations" criteria of § 7112(a).
B. CBP's Opposition
1. The Application for Review as to the RD's Determination Concerning Agriculture Specialists as Professional Employees Should be Denied
CBP points out that, under § 7135(b) of the Statute, Authority decisions must follow decisions under the Executive Order until those decisions are revised or revoked by the President, are superseded by the Statute, or are changed by Authority decision. According to CBP, the definition of "professional employee" applied by the A/SLMR and relied on by the RD is the same under the Statute as it was under the Executive Order, has not been revised or revoked by the President, was not superseded by the Statute, and has not been changed by Authority decision. Moreover, citing NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985), CBP asserts [ v61 p492 ] that Authority reliance on A/SLMR decisions pursuant to § 7135(b) has been required by the courts.
CBP contends that there is no evidence that the A/SLMR or the Authority ever adjudicated the professional status of the PPQ Officer position. In addition, CBP maintains that the PPQ Officer position is not relevant to a determination with respect to the issue of the professional status of Agriculture Specialists under the Statute because the Agriculture Specialist position is a new position and includes law-enforcement and anti-terrorism duties that were not a part of the PPQ Officer position.
Further, CBP claims that OPM's designation of employees in the job series occupied by Agriculture Specialists as "professional" is not relevant to a determination of professional status under the Statute. CBP claims that only the Authority can make that determination. Moreover, according to CBP, an employee's status under another statutory scheme is not dispositive as to that employee's status under the Statute. CBP also argues that NAAE did not make either of these arguments to the RD and, under § 2429.5 of the Authority's Regulations, is barred from raising them now before the Authority.
2. The Application for Review as to the RD's Unit Determination Should be Denied
CBP contends that NAAE's arguments with regard to the RD's unit determinations amount to nothing more than NAAE's disagreement with the RD's findings and conclusions. Specifically, as to NAAE's claim that the RD applied the statutory appropriate unit criteria differently to the proposed Border Patrol unit than to the proposed unit of agricultural personnel, CBP maintains that the RD's decision results from a "proper application of the criteria, on a case-by-case basis, consistent with FLRA precedent, to two very different proposed units of employees operating under critically distinct circumstances." CBP's Opposition at 22-23. According to CBP, the RD properly determined that the facts concerning agricultural personnel were sufficiently different from the facts pertaining to Border Patrol personnel to justify different unit conclusions. In particular, CBP asserts that the statutory criteria in § 7112(a) require that a proposed unit have a clear and identifiable community of interest separate and distinct from other employees, which ensures that employees with integrated or interrelated working conditions will be grouped together for labor relations purposes. CBP maintains that agricultural personnel have been "so organizationally and operationally integrated into a unified inspectional workforce at CBP as to have lost any separate identity from other CBP employees[,]" exclusive of the Border Patrol. Id. at 26.
As to NAAE's claim that the RD applied the "effective dealings" criterion disparately to the Border Patrol and to NAAE's proposed unit, CBP argues that NAAE overlooks the RD's finding that there is not a separate organizational structure for agriculture personnel within CBP, as there is for the Border Patrol. According to CBP, the lack of a separate organizational structure for agricultural personnel is an essential element of the RD's finding that those personnel are part of an integrated workforce with other employees in OFO.
IV. Analysis and Conclusions
A. The RD Correctly Determined that Agriculture Specialists are not Professional Employees within the Meaning of § 7103(a)(15)
We construe NAAE's contentions in its application as seeking review of the RD's decision as to the professional status of Agriculture Specialists on the ground that the RD failed to apply established law and committed clear and prejudicial error concerning substantial factual matters. [n5] For the following reasons, we conclude that NAAE's contentions do not establish that review is warranted.
Under § 7103(a)(15) of the Statute, an employee is a professional employee if that employee is engaged in performing work that: (1) requires "knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning;" (2) requires "the consistent exercise of discretion and judgment in its performance;" (3) is "predominantly intellectual and varied in character," as opposed to "routine mental, manual, mechanical, or physical work;" and (4) is "of such character that the output produced or the result accomplished by such work cannot be standardized in relation to a given period of time[.]" 5 U.S.C. § 7103(a)(15). In applying this definition, the Authority has customarily assessed whether the position in question requires advanced knowledge of a type that is usually acquired in an institution of higher learning. See, e.g., United States Attorneys Office for the Dist. of Columbia, 37 FLRA 1077, 1082 (1990) (Attorneys Office); Veterans Admin., Regional Office, Portland, Ore., 9 FLRA 804, 805-06 (1982) (Regional Office). [ v61 p493 ] The Authority has noted, however, that a college degree is not necessarily required for an employee to be considered a professional. See Attorneys Office, 37 FLRA at 1082. Cf. Massachusetts Army Nat'l Guard, TAGO, Nat'l Guard Bu., Dep't of Defense, 8 FLRA 711 (1982) (Massachusetts Nat'l Guard). The Authority has also considered the extent to which performance of the job involves the exercise of discretion and judgment, as well as whether the nature of the work is intellectual and varied, as opposed to routine mental, manual, or physical work. See, e.g., 934th Tactical Airlift Group (AFRES), Minneapolis-St. Paul International Airport, Minneapolis, Minn, 13 FLRA 549 (1983); Regional Office, 9 FLRA at 805-06.
Applying these criteria, the RD found that, although some specialized education and the exercise of sound judgment are required for the Agriculture Specialist position, incumbents of those positions do not exercise the type of discretion required for status as a professional under § 7103(a)(15). The RD also found that the work of Agriculture Specialists was "routine," "standardized," and involved manual labor, which also disqualified them for status as professionals under § 7103(a)(15). Consequently, the RD concluded that Agriculture Specialists are not professional employees within the meaning of § 7103(a)(15).
NAAE correctly states that the Authority "must either follow its own precedent or `provide a reasoned explanation for' its decision to depart from that precedent." NFFE, FD-1, IAMAW, Local 951 et al. v. FLRA, 412 F.3d 119, 124 (D.C. Cir. 2005) (citing Local 32, AFGE v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985)). NAAE fails to demonstrate, however, how the RD's decision constitutes a departure from precedent. In particular, NAAE fails to produce any evidence that the Authority, or the A/SLMR under the Executive Order, ever determined that PPQ Officers in the Department of Agriculture were professional employees within the meaning of the applicable definitions under the Statute or the Executive Order, respectively. [n6] That the Department of Agriculture and NAAE historically accepted PPQ Officers as professional employees is not the equivalent of such a determination. The Authority has consistently recognized that past practices cannot bind the Authority with respect to a question of law. See, e.g., United States Dep't of Transportation, FAA, 60 FLRA 20, 24 (2004). NAAE likewise offers no argument that the RD's conclusion is inconsistent with other relevant precedent.
NAAE provides no precedent establishing that the Authority is bound by the determination of OPM, or by agency determinations under the FLSA, insofar as unit determination under the Statute is concerned. [n7] Moreover, the Authority has emphasized that the definitions set forth in § 7103 are intended for use only in construing the Statute. See IFPTE, Local 25, 13 FLRA 433, 438 (1983) ("The term ["professional employee"] is relevant primarily to the determination of appropriate bargaining units under [§] 7112[,]" quoting H.R. Rep. No. 95-1403, 95th Cong., 2nd Sess. 41 (1978)). In this regard, NAAE has not demonstrated that the RD erred in failing to consider OPM classification guidelines or statutory provisions or applicable regulations concerning overtime for Federal employees in determining whether Agriculture Specialists are professional employees within the meaning of § 7103(a)(15). See United States Dep't of the Treasury, Bu. of Engraving and Printing, Washington, D.C., 58 FLRA 2, 2 (2002).
As to NAAE's claim that the RD misconstrued the manner in which the Manuals are used by Agriculture Specialists and thus erred in his factual findings as to the amount of discretion they exercise, we conclude that the record supports the RD's findings. Despite the fact that there are many decisions Agriculture Specialists have to make in applying the Manuals and performing their work, it is clear that the determinations that require judgment and extensive educational background, the hallmark of professional employees, are made by employees other than the Agriculture Specialist. See Decision at 34-35. It is not sufficient that employees exercise some discretion in the performance of their duties in order that they may be found to be professional employees. Moreover, the fact that a different agency viewed employees in a different position as professional employees is not dispositive as to whether the employees in this case are professional employees. [ v61 p494 ]
Finally, NAAE incorrectly asserts that the RD erred in relying on an A/SLMR decision. On the contrary, the Authority has consistently followed A/SLMR precedent in representation cases. See, e.g., Dep't of the Army, United States Army Corps of Eng'rs, Los Angeles Dist., Los Angeles, Calif., 56 FLRA 973, 976-77 (2000) (citing VA Hospital, Montrose, N.Y., 4 A/SLMR 858 (1974)). In addition, the fact that Army Safeguard arose under the Executive Order is not dispositive. The definition employed by the Assistant Secretary in that case was set forth in a previous A/SLMR decision, and was adopted by Congress in enacting the Statute. Compare the definition set forth in Dep't of the Interior, Bu. Of Land Management, Riverside District and Land Office, A/SLMR No.170 (1972) with § 7103(a)(15) of the Statute. Moreover, under § 7135(b) of the Statute, the Authority is required to apply A/SLMR precedent until it is overturned or abandoned. See SSA, Office of Hearings and Appeals, Charleston, S.C., 59 FLRA 646, 651 n.8 (2004), petition for review denied, Assoc. of Admin. Law Judges, IFPTE, AFL-CIO v. FLRA, 397 F.3d. 957 (D.C. Cir. 2005). In this regard, as found by the RD, the activities of both the Librarian and Agriculture Specialists are confined by very specific guidelines to which they must adhere. NAAE has not demonstrated that the RD erred in relying on or applying Army Safeguard.
For the foregoing reasons, we conclude that NAAE has not demonstrated that the RD failed to follow established law or committed a clear and prejudicial error concerning substantial factual matters. The RD concluded that Agriculture Specialists are not professional employees because he found that they did not exercise the requisite discretion and judgment and the work they performed was standardized, routine, and involved manual labor. We reach the conclusion that review of NAAE's application is unwarranted because we find that: (1) the record supports the RD's factual findings; and (2) he properly applied existing precedent to those findings. Accordingly, we deny NAAE's application for review of the RD's determination that Agriculture Specialists are not professional employees within the meaning of § 7103(a)(15) of the Statute.
B. The RD Correctly Applied Established Law in Determining that NAAE's Petitioned-for Unit was not Appropriate
We construe NAAE's contentions in its application as seeking review of the RD's decision as to the appropriateness of its proposed unit on the ground that the RD failed to apply established law within the meaning of § 2423.31(c)(3)(i) of the Authority's Regulations.
The appropriate unit criteria set forth in § 7112(a) of the Statute require the RD, in determining whether a proposed unit is an appropriate unit under the Statute, to assess whether the unit will: (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 that agency. See, e.g., United States Dep't of the Army, Military Traffic Management Command, Alexandria, Va., 60 FLRA 390, 394 (2004) (Military Traffic Management Command) (Chairman Cabaniss concurring in part and dissenting in part) (citing United States Dep't of the Air Force, Lackland AFB, San Antonio, Tex., 59 FLRA 739, 741 (2004)). A proposed unit must meet all three criteria to be found appropriate. See id. The Authority has enumerated certain factors for assessing each criterion, but has not specified the weight of individual factors or a specific number of factors necessary to establish an appropriate unit. See id. Determinations as to each of these factors are made on a case-by-case basis. See id.
In applying the community of interest criterion, the Authority examines such factors as whether employees in the proposed unit: (1) are a part of the same organizational component; (2) support the same mission; (3) are subject to the same chain of command; (4) have similar or related duties, job titles, and work assignments; (5) are subject to the same general working conditions; and (6) are governed by the personnel and labor relations policies that are administered by the same personnel office. See Military Traffic Management Command, 60 FLRA at 394 (citing United States Dep't of the Navy, Fleet & Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 960-61 (1997) (FISC)). Other factors, such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation, or integration, may also be relevant. See id. (citing United States Dep't of the Army, Corps of Eng'rs, United States Army Engineer Dist., Vicksburg, Miss., 57 FLRA 620, 623 (2001)). In order for a proposed unit to constitute a separate appropriate unit within an organizational component, application of these factors must demonstrate that the employees in that unit share a separate and distinct community of interest apart from other employees in the component. See, e.g., Dep't of Transportation, FAA, New England Region, 20 FLRA 224, 229 (1985) (New England Region).
At the outset, we agree with NAAE that, consistent with Commander, Naval Base, the RD should have considered the appropriateness of the NAAE-petitioned-for [ v61 p495 ] unit prior to considering the Agency-proposed unit because the NAAE unit would have preserved the status quo with respect to agricultural personnel. We find, however, that doing so would not have changed the result. Addressing the community of interest criterion, the RD was required, under Commander, Naval Base to assess whether the changes to the NAAE unit resulting from the reorganization that created DHS "were significant enough to eliminate the previous community of interest." 56 FLRA at 334. He did just that, finding that the organizational and operational status of Agriculture Specialists and Agriculture Technicians had been sufficiently changed that their previous unit structure was no longer appropriate.
In particular, the RD applied the community of interest factors in assessing whether NAAE's proposed unit of Agriculture Specialists and Agriculture Technicians would constitute an appropriate unit under § 7112(a) of the Statute. The RD found that Agriculture Specialists and Agriculture Technicians and CBP Officers are part of OFO and, thus, within the same organizational component. He also found that they: (1) are subject to the same chain of command; (2) share a common anti-terrorism mission; (3) perform similar analysis and inspection duties; (4) are located at the same worksite and work alongside one another at that site; (5) are subject to the same personnel policies, including overtime, scheduling, and assignment policies, which are administered by the same personnel offices; (6) are cross-trained in each other's specialties; and (7) wear the same uniform. Weighing all these factors, the RD found that Agriculture Specialists and Agriculture Technicians do not share a community of interest separate and distinct from CBP Officers within OFO and concluded that a unit including only Agriculture Specialists and Agriculture Technicians would not be appropriate under § 7112(a) of the Statute.
NAAE maintains that the RD applied these factors disparately to the Border Patrol and Agriculture Specialists and Agriculture Technicians. However, NAAE does not dispute that Agriculture Specialists and Agriculture Technicians and CBP Officers are part of the same organizational component within CBP or that the Border Patrol is a separate component of CBP. Similarly, NAAE does not dispute the RD's finding that, although Border Patrol agents and OFO personnel are subject to the same personnel policies, the Border Patrol has separate personnel authority with respect to various of those policies or that Border Patrol agents and OFO personnel have different working environments and uniforms.
NAAE's contention that the RD reached different conclusions as to the chain of command of Border Patrol agents and agricultural personnel, despite their similarities, overlooks the RD's specific findings. Although the RD found that the chain of command within the Border Patrol transferred intact, except at the upper levels thereof, the RD did not make that finding with respect to Agriculture Specialists and Agriculture Technicians. Specifically, the RD noted that, while first-line supervision at major ports of entry might be the same for Agriculture Specialists and Agriculture Technicians, supervision above the first level is not the same as before their transfer to CBP. Further, the RD found that CBP Officer supervisors at those ports might be called on to provide supervision for Agriculture Specialists and Agriculture Technicians in certain circumstances and, at lesser ports of entry, Agriculture Specialists and Agriculture Technicians might not be subject to supervision by agricultural personnel at all. The differences between the chain of command for Border Patrol agents and for Agriculture Specialists and Agriculture Technicians support the RD's decision that Agriculture Specialists and Agriculture Technicians do not possess a community of interest separate and distinct from other employees in CBP.
Similarly, NAAE's contention that the RD treated differently the fact that Border Patrol agents and Agriculture Specialists and Agriculture Technicians continue to work in the same place overlooks other aspects of the RD's findings. In particular, while Border Patrol agents' working conditions remained the same, those of Agriculture Specialists and Agriculture Technicians changed. The RD found that Agriculture Specialists and Agriculture Technicians became part of an integrated workforce with CBP Officers at ports of entry and relied on this fact in his conclusions. See Decision at 39-40.
As to NAAE's argument that the RD improperly included in his analysis the fact that Agriculture Specialists and CBP Officers wear the same uniform, the Authority has never precluded consideration of such a factor. Moreover, the Authority has recognized that agencies use uniforms for purposes of identifying their employees as agency personnel. See, e.g., NTEU, 61 FLRA 48 (2005). The RD's findings as to uniforms underscore the common working conditions of Agriculture Specialists and CBP Officers and distinguish them from Border Patrol agents.
NAAE argues that Border Patrol agents and CBP Officers share a law enforcement mission that agricultural personnel do not share and contends that this fact demonstrates agricultural personnel share a separate community of interest. However, this factor is only one of the factors considered by the RD. In this regard, the RD found that: (1) Agriculture Specialists, Agriculture [ v61 p496 ] Technicians, and CBP Officers work at the same location; (2) perform similar analytical and inspectional duties; (3) are trained in each other's responsibilities; (4) are subject to the same chain of command; and (4) often work in integrated teams. The record in this case supports the RD's findings. In weighing the absence of a law enforcement mission against these findings, the RD concluded that the absence of a law enforcement mission, along with the other items noted by NAAE, are insufficient to demonstrate a separate and distinct community of interest for Agriculture Specialists and Agriculture Technicians.
NAAE emphasizes the "unique" employment concerns of Agriculture Specialists and Agriculture Technicians--such as their specialized educational requirements and inspectional focus on agricultural products, and the fact that Agriculture Technicians are not subject to the same overtime system as CBP Officers and Agriculture Specialists--and argues that the RD did not recognize those factors in assessing community of interest. To the contrary, the RD did note the educational requirements of the Agriculture Specialist and Agriculture Technician positions and the specific nature of their inspectional activities. See, e.g., Decision at 25, 31-32. However, the fact that employees have specialized or unique concerns does not compel finding a separate community of interest for those employees if other factors demonstrate that they are operationally and organizationally integrated with other employees. See, e.g., Dep't of the Interior, Nat'l Park Serv., Lake Mead Nat'l Recreation Area, Boulder City, Nev., 57 FLRA 582, 584-85 (2001) (Lake Mead) (RD accurately applied precedent in finding that proposed unit did not have a separate and distinct community of interest because, although employees in that unit shared some unique employment conditions, they were both functionally and operationally integrated with other employees at the facility). NAAE's contentions simply amount to disagreement with the weight the RD gave to other factors in concluding that agricultural personnel did not share a separate community of interest.
Finally, NAAE's argument that Agriculture Specialists and Agriculture Technicians are trained in different facilities than Border Patrol agents and Customs Officers disputes the manner in which the RD assessed the significance of various facts. Specifically, in determining that Agriculture Specialists and Agriculture Technicians do not share a community of interest separate and distinct from CBP Officers the RD found more significant the fact that they are all cross-trained in each other's disciplines.
In sum, NAAE's contentions as to the RD's community of interest findings overstate the similarity between the respective circumstances of Border Patrol agents and Agriculture Specialists and Agriculture Technicians and disagree with the manner in which the RD weighed particular facts in the context of the record as a whole. The record supports the RD's findings and the manner in which he weighed his findings, in concluding that Agriculture Specialists and Agriculture Technicians do not share a community of interest separate and distinct from Customs Officers in OFO, is consistent with Authority precedent. See, e.g., Military Traffic Management Command, 60 FLRA at 394-95; Lake Mead, 57 FLRA at 584-85; New England Region, 20 FLRA at 228-29.
For the foregoing reasons, we conclude that the RD did not fail to follow established law or commit a clear and prejudicial error concerning substantial factual matters. [n8]
The application for review is denied. [ v61 p497 ]
1. 5 C.F.R. § 2422.31(c) provides as follows:
§ 2422.31. Application for review of a Regional Director Decision and Order
. . . .
(c) Review. The Authority may grant an application for review only 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.
2. 5 U.S.C. § 7103(a)(15) provides as follows:
§ 7103. Definitions; application
(a) For the purpose of this chapter--
. . . .
(15) "professional employee" means--
(A) an employee engaged in the performance of work--
(i) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital (as distinguished from knowledge acquired by a general academic education, or from an apprenticeship, or from training in the performance of routine mental, manual, mechanical, or physical activities);
(ii) requiring the consistent exercise of discretion and judgment in its performance;
(iii) which is predominantly intellectual and varied in character (as distinguished from routine mental, manual, mechanical, or physical work);
(iv) which is of such character that the output produced or the result accomplished by such work cannot be standardized in relation to a given period of time; or
(B) an employee who has completed the courses of specialized intellectual instruction and study described in subparagraph (A) (i) of this paragraph and is performing related work under appropriate direction or guidance to qualify the employee as a professional employee described in subparagraph (A) of this paragraph[.]
Footnote # 1 for 61 FLRA No. 92 - Authority's Decision
The RD made other findings that are not challenged and, as a result, will not be addressed further. We note, in particular, that there is no dispute that CBP was the successor for the bargaining unit of Border Patrol employees represented by the National Border Patrol Council of AFGE (NBPC). There also is no dispute that the Agency-proposed unit of CBP employees is appropriate and that elections involving professionals and non-professionals in that unit are necessary.
Footnote # 2 for 61 FLRA No. 92 - Authority's Decision
Among others, the petition excluded employees of the Border Patrol who, as noted above, were found by the RD to constitute a separate appropriate unit. In finding that the Border Patrol unit was appropriate under § 7112(a) of the Statute, the RD noted, among other things, that: (1) "[t]he chain of command for Border Patrol agents is distinct from that of the inspectional workforce found within OFO[,]" Decision at 16; (2) the Chief of Border Patrol has authority to establish working conditions and has been delegated authority to administer the discipline program within the Border Patrol; (3) Border Patrol agents are geographically distinct from OFO personnel, working in areas between the ports of entry staffed by those personnel and, thus, have a different working environment; (4) Border Patrol agents wear a different uniform and badge from that worn by OFO personnel; (5) personnel and labor relations policies are established at the level of the Commissioner of CBP, but CBP has separately bargained a merit promotion plan with NBPC; and (6) the Border Patrol is "a distinct organizational component within CBP" and "CBP has been able to deal with the specific concerns of the Office of Border Patrol efficiently." Id. at 18.
Footnote # 3 for 61 FLRA No. 92 - Authority's Decision
Hereinafter, for the sake of simplicity, the NAAE petition will be described as being for a separate unit, recognizing that the petitions also embraced separate professional and non-professional units.