[ v60 p523 ]
60 FLRA No. 106
UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE SUPPLY CENTER COLUMBUS
COLUMBUS, OHIO
(Activity)
and
INTERNATIONAL FEDERATION
OF PROFESSIONAL AND
TECHNICAL ENGINEERS
LOCAL 7, AFL-CIO
(Petitioner)
and
UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE SUPPLY CENTER COLUMBUS
COLUMBUS, OHIO
(Activity)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1148, AFL-CIO
(Petitioner)
CH-RP-02-0025
CH-RP-02-0031
_____
ORDER GRANTING, IN PART, AND DENYING,
IN PART, APPLICATION FOR REVIEW
December 29, 2004
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on an application for review filed by the International Federation of Professional and Technical Engineers, Local 7, AFL-CIO (IFPTE) under § 2422.31(c) of the Authority's Regulations. IFPTE seeks review of the Regional Director's (RD's) Decision and Order to include the newly created position, Product Specialist, GS-301-11, (PS) in the bargaining unit represented by American Federation of Government Employees (AFGE), instead of the IFPTE bargaining unit. The Activity filed an opposition to IFPTE's application for review.
For the reasons that follow, we grant the application for review, in part, because it establishes that established law and policy warrant reconsideration. The parties are directed to file supplemental briefs concerning the question set forth at the end of this decision. The application for review is denied in all other respects.
II. Background and RD's Decision
The Activity is a field activity of the Defense Logistics Agency (DLA), one of three Defense Supply Centers in the United States, and its mission is to supply "material management and procurement support to military departments of the Department of Defense." RD's Decision at 2. Since 1968, IFPTE has been the exclusive representative of all non-professional technical employees in the classifications of Equipment Specialist (ES), GS-1670, and Quality Assurance Specialist (QAS), GS-1910. Id.
In 1993, AFGE became the exclusive representative of a nationwide consolidated unit of the DLA. Id. That unit included about 1800 DLA employees. Id. The employees represented by the AFGE are the non-professional employees of the Activity, excluding the ES and QAS employees represented by IFPTE. RD's Decision at 2.
In 1996, over 200 ES and QAS transferred to the Activity from another DLA facility. Id. Before the transfer, the employees were part of the AFGE consolidated bargaining unit. Id. When a dispute arose as to the appropriate representation for the transferred employees, the Authority determined that the employees could appropriately be included in either the AFGE or the IFPTE unit and that the transferred employees could vote to determine their representation. Id. (citing Def. Logistics Agency, Def. Supply Ctr. Columbus, Columbus, Ohio, 53 FLRA 1114, 1127-1135 (1998)). A majority of the employees voted to be included in the IFPTE unit. Id. at 3. In 1998, IFPTE was certified as the exclusive representative for "[a]ll non-professional and technical employees located at the Defense Supply Center Columbus, Columbus, Ohio holding career or career-conditional appointments in the classifications of Equipment Specialists (Series GS-1670) and Quality Assurance Specialists (Series GS-1910)." See id. The unit specifically excluded all non-professional employees who are not in the ES or QAS positions. Id.
The present petitions are a result of the Activity creating a new Product Specialist (PS) position, [ v60 p524 ] GS-301-11. [n1] Id. The position was created as a part of the Activity implementing the Business Systems Modernization (BSM), an information, technology, and re-engineering project. Id. The PS position is assigned to a team within the BSM's Directorate of Supplier Operations, which works with contractors and businesses that provide materials to the Activity. Id.
The new position was created by combining some of the job duties of the ES and QAS positions. Id. Ten of the eleven current PS were either ES or QAS who were cross-trained to learn both ES and QAS duties in order to be transferred to PS. Id. The Activity estimates that when the BSM project is completely implemented, most of the QAS and ES will be cross-trained and converted to PS positions. [n2] RD's Decision at 3.
All three positions, the QAS, the ES and the PS, work on interdisciplinary teams with employees represented by AFGE and have a multi-functional supervisor. Id. The BSM project has not changed the interdisciplinary teams although the teams have been transferred to the appropriate BSM project component. Id. at 4. The employees who were converted to the PS position continue to work on the same teams as they did as ESs and QASs. RD's Decision at 4.
Employees in the PS, ES and QAS positions and those employees represented by AFGE are all subject to the same personnel policies and practices and to the same pay system. Id. All of the employees are serviced by the same personnel office and have access to the same Activity facilities. Id.
Both IFPTE and AFGE filed petitions concerning the bargaining unit placement of the newly created PS position. IFPTE asserted that the position should be placed in its unit because those employees share a community of interest with the ES and QAS who are represented by IFPTE. Id. at 5. IFPTE also explained that placing the PS in its unit would promote effective dealings and efficiency of operations at the Activity. Id.
Both the Activity and AFGE contended that the position should be placed in AFGE's bargaining unit because those employees share a community of interest and the inclusion of the new employees would promote effective dealings and efficiency of operations at the Activity. Id. In addition, the Activity argued that by the express terms of AFGE's bargaining unit certificate, the PS position is automatically included in the AFGE unit. Id.
The RD initially explained that the parties do not dispute the continued appropriateness of both the IFPTE and the AFGE units. Id. The RD then stated that under Authority precedent, new employees are automatically included in a bargaining unit if their position falls within the express terms of the unit's certification and their inclusion does not render that unit inappropriate. RD's Decision at 5. (citing Dep't of the Army, Headquarters, Fort Dix, Fort Dix, N.J., 53 FLRA 287, 294 (1997) (Fort Dix); United States Dep't of the Air Force, Carswell Air Force Base, Tex., 40 FLRA 221, 229-30 (1991)). According to the RD, AFGE's bargaining unit certificate expressly states that all non-supervisory nonprofessional employees, excluding the ES and the QAS positions, are included in AFGE's unit and IFPTE's certificate expressly includes only the ES and QAS positions. Id. Based on the express language in IFPTE's certificate, excluding all non-professional employees except the QAS and ES positions, the RD found that the newly created PS position did not automatically fit into that unit. Id. Examining AFGE's certificate, the RD determined that the employees in the PS position are non-professional employees of the Activity and therefore fit within the express language of AFGE's certificate. Id. at 5-6. Therefore, according to the RD, the position would be included in the AFGE unit unless the inclusion would render the unit inappropriate. Id. at 6.
The RD concluded that the inclusion of the new position would not render the AFGE unit inappropriate. Id. Although there was no dispute "that the AFGE unit continues to be an appropriate unit," the RD examined the three statutory factors used to determine if a unit is appropriate: the employees share an identifiable community of interest; the unit promotes effective dealings with the agency; and the unit promotes efficiency of operations of the agency. Id. at n.2 (citing 5 U.S.C. § 7112(a)). The RD found that the incumbents of the PS position and the employees represented by AFGE share a community of interest because they are "subject to the same supervision, same personnel practices, policies and conditions of employment and serviced by the same personnel office." Id. The RD stated that none of the parties claimed that the inclusion of the PS position in the AFGE unit would "disrupt the Activity's operations or adversely affect the Activity's productivity or resource allocation." Id. Based on the lack of showing to the contrary, the RD determined that the inclusion of [ v60 p525 ] the PS position in the AFGE unit would promote effective dealings with and efficiency of operations at the Activity. Id.
The RD granted AFGE's petition to include the PS position in its unit and clarified the unit to include the new position. RD's Decision at 6. The RD also dismissed IFPTE's petition. Id.
III. Positions of the Parties
A. IFPTE's Application
1. The RD failed to apply established law.
IFPTE argues that the RD inappropriately applied the "express terms of a bargaining certificate" standard. Application at 6. IFPTE states that in 1998, AFGE petitioned to have the existing IFPTE specialists accreted into the AFGE and the Authority found that the IFPTE was an established unit with a "history of stable labor relations with the [Activity] dating back to 1967." Id. at 6-7. IFPTE explains that the Authority ordered an election for the transferred employees to decide whether to be represented by AFGE or IFPTE and that the majority of employees elected IFPTE as their exclusive representative. Id. at 7. IFPTE asserts that the case establishes that the unit is a well-established one consisting of the ES and QAS positions, both excluded from the express language of the AFGE certificate. Id.
Based on its assertion that IFPTE represents all employees in the QAS and ES positions, IFPTE maintains that employees in the PS position are ESs or QASs "who have been cross-trained to perform each other's job functions, which are at the core of the IFPTE bargaining certificate . . . ." See id. As a result, IFPTE argues that the new position falls within the express language of its certificate, as the certificate was interpreted by the Authority in 1998. Id. at 7-8. As a result, IFPTE argues, the RD failed to apply established law by finding the PS position fit within the express language of AFGE's certificate. Id. at 8.
2. The RD committed a clear and prejudicial error concerning a substantial factual matter.
IFPTE alleges that the decision is contrary to the undisputed record and fails to address claims it presented. Application at 9. According to IFPTE, the inclusion of the PS position in the AFGE unit renders the unit inappropriate because it does not promote the effective dealings with the Activity or the efficiency of the operations of the Activity due to the fact the result of the RD's decision is to have two different units representing employees performing "exactly the same functions, in the same locations for the same supervisors." Id.
According to IFPTE, whether a unit will promote the "efficient use of resources, or hinder the negotiation of critical matters" will determine whether a unit will promote the effective dealings with an agency. Id. Based on this standard, IFPTE contends that requiring the Activity to negotiate with two units, separately, on the issue of working conditions for employees who perform the same functions and work side-by-side for the same supervisors does not promote effective dealings with the Activity. Id. In addition, IFPTE explains that having the PS position in a separate unit from the QAS and ES positions will "substantially diminish the collective advantage this functional group would derive from bargaining together regarding their unique concerns." See id.
IFPTE explains that the factors used to determine whether a unit promotes the efficiency of operations are the "benefits to be gained from defining bargaining units that bear a rational relationship to the Activit[y's] operational and organizational structure." See id. According to IFPTE, the record clearly illustrates that employees in the QAS, ES and PS positions work closely on the Product Assurance Council (PAC), with both management and IFPTE representatives, focusing on the Activity's "engineering and quality, and technical business interests." See id. at 10. In addition, IFPTE states that the PAC makes recommendations to the Activity for improvements in engineering and technical business. Application at 10. Because the PAC is "coextensive with the functions covered by the IFPTE bargaining unit" and is a forum for representing employee interests, IFPTE argues that it promotes efficiency in Activity operations to include all employees performing the same functions in one bargaining unit. Id.
3. Established law and policy warrant reconsideration.
IFPTE contends that the Authority's application of the "express terms of the bargaining certificate" standard must be reconsidered. Application at 8. According to IFPTE, the RD only looked at "surface terms" when deciding the employees should be included in the AFGE unit. Id. IFPTE maintains that the decision ultimately results in employees who perform "exactly the same functions, in the same locations for the same supervisors" being represented by two different units. Id. IFPTE argues that this is inconsistent with the goals of the Federal Service Labor-Management Relations Statute and deserves reconsideration. Id. [ v60 p526 ]
B. Agency's Opposition
1. The RD did not fail to apply established law.
The Activity argues that IFPTE did not demonstrate how the RD failed to apply established law. According to the Activity, the RD applied Authority precedent and appropriately found that the "newly created" PS position fell within the express language of AFGE's bargaining unit certificate. Opposition at 2. In addition, the Activity asserts that the previous case involving AFGE and IFPTE in 1998 has no precedential value to this case and does not support a finding that the PS position should be included in IFPTE's unit. Id. at 2-3.
2. The RD did not commit a clear and prejudicial error concerning a substantial factual matter.
The Activity argues that IFPTE did not demonstrate that the RD committed a clear and prejudicial error concerning a substantial factual matter. Id. at 3.
IV. Analysis and Conclusions
A. The RD did not fail to apply established law.
The RD did not fail to apply established law. On its face, this case involves a new position created by the Activity, the PS. The Authority has consistently stated that new categories of employees are automatically included in an existing bargaining unit where their positions fall within the express terms of a bargaining unit certificate and where such inclusion does not render the unit inappropriate. Fort Dix, 53 FLRA at 294 (citations omitted). Upon review of the record and the RD's decision, it is clear that the RD applied this established standard to the case. IFPTE's argument that the RD failed to apply established law is not compelling, although the argument does relate to IFPTE's argument that established law and policy warrant reconsideration in this case. Because the RD's decision is consistent with Authority precedent, we find that the RD did not fail to apply established law in finding that the employees in the PS position should automatically be included in the AFGE unit because their positions fall within the express terms of AFGE's bargaining unit certificate and such inclusion does not render AFGE inappropriate. United States Dep't of Def., Def. Commissary Agency, 59 FLRA 990, 993 (2004). Accordingly, we deny the application for review as to this matter.
B. The RD did not commit a clear and prejudicial error concerning a substantial factual matter.
IFPTE alleges that the RD did not consider the undisputed factual record and did not address the claims presented by IFPTE. IFPTE does not refer to any specific factual error the RD committed that prejudiced the outcome of the RD's decision, but rather supports its claim by essentially relitigating the merits of the case.
The RD's factual findings in the decision reflect the stipulations to which both parties agreed. RD's Decision at 2-4; Stipulations at ¶¶ 1-25. The RD also included in the decision IFPTE's arguments that the PS position should be included in its unit because those employees in the PS position share a community of interest with the other employees in the unit and that their inclusion will promote the effective dealings with and efficiency of operations at the Activity. Id. at 4-5. Therefore, it is clear that the RD considered the record and IFPTE's arguments.
IFPTE does not offer any evidence that the RD's findings and conclusions were based on clear and prejudicial errors concerning a substantial factual matter. Nat'l Credit Union Admin., 59 FLRA 858, 862 (2004); Dep't of the Interior, Nat'l Park Serv., Lake Mead Nat'l Recreation Area, Boulder City, Nev., 57 FLRA 582, 585 (2001). Accordingly, we deny the application for review as to this matter.
C. Established law and policy warrant reconsideration.
In finding that employees in the PS position were properly included in AFGE's bargaining unit, the RD applied Authority case law, which holds that new positions are automatically included in existing bargaining units where those positions fall within the express terms of the unit certificate and the inclusion of the employees would not render the units inappropriate. See e.g., Fort Dix, 53 FLRA at 294.
In this case, the parties' stipulation indicates, and the parties do not dispute, that the "new" GS-301 position was created by combining the duties of the existing GS-1670 and GS-1910 positions. RD's Decision at 3; Stipulations at ¶ 13 ("As part of the BSM program, the job functions of some [ES] and [QAS] have been combined into a new position, [PS], GS-301.") The RD did not cite, and we are unaware of, any cases in which employees who were in positions that were expressly included in one bargaining unit were, following a reorganization, effectively reclassified into a position that is expressly included in a different bargaining unit.
In these circumstances, we believe that it is appropriate to grant the application for review and direct the parties to file briefs on the following question: [ v60 p527 ]
What standard should the Authority apply in determining the unit status of a new position created by combining the duties of two existing positions comprising a functional bargaining unit (unit A), where the new position is dissimilar in nature but has the same classification series as positions in a different bargaining unit and also falls within the description of that different bargaining unit (unit B)? How should that standard be applied to this case?
V. Order
The application for review is granted, in part, under § 2422.32(c)(2) of the Authority's Regulations because IFPTE has established that Authority law and policy warrant reconsideration. In accordance with § 2422.31(g) of the Authority's Regulations, the parties are directed to file briefs on the question set forth above. Briefs will be considered if received by mail or personal delivery in the Authority's Case Control Office by 5 p.m. on January 28, 2005. Placing submissions in the mail by this deadline will not be sufficient. Extensions of time to submit briefs will not be granted. Briefs should be directed to:
Gail D. Reinhart
Director, Case Control Office
Federal Labor Relations Authority
1400 K Street, NW., Suite 201
Washington, D.C. 20424-0001
We deny the application for review in all other respects.
Footnote # 1 for 60 FLRA No. 106 - Authority's Decision
The GS-301 series is a general position classification and the parties acknowledge that other positions classified as GS-301 are not similar in nature to the PS.
Footnote # 2 for 60 FLRA No. 106 - Authority's Decision
The RD found that IFPTE currently represents approximately 200 employees and when the BSM is fully implemented, there will be more than 200 ES and QAS cross-trained and converted to the PS position. RD's Decision at 3.