70 FLRA No. 108                                                                                                                                                              

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

(Agency)

and

NATIONAL TREASURY

EMPLOYEES UNION

(Petitioner/Labor Organization)

WA-RP-18-0011

_____

ORDER DENYING

APPLICATION FOR REVIEW

May 3, 2018

_____

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member Abbott dissenting)

1. Statement of the Case

The Union petitioned Federal Labor Relations Authority (FLRA) Regional Director Jessica Bartlett    (the RD) to clarify the bargaining‑unit status of a particular position.  The RD dismissed the petition because she found that the employee who encumbers the position is excluded from the unit based on the express terms of the bargaining-unit certification                      (the certification). 

The Union filed an application for review (application) of the RD’s decision.  That application presents the questions of whether the Union has demonstrated that:  (1) the RD failed to apply established law, or (2) the RD’s decision raises an issue for which there is an absence of precedent.  Because the            RD’s decision is consistent with relevant, established Authority precedent, the answer to both questions is no.

2. Background and RD’s Decision

The Union is the certified exclusive representative of a bargaining unit of Agency employees.  The certification states that the unit includes, in relevant part, “[a]ll professional employees of the [Agency] employed by and located at the [h]eadquarters [o]ffices, Washington, D.C., [m]etropolitan area.”^[1]

When the employee began working for the Agency, she reported to the Agency’s headquarters in Washington, D.C. (D.C.), her official duty station was D.C., and she was in the unit.  After the Agency began allowing the employee to telework full‑time, she relocated to Buckley, Washington (Buckley).  Although she continued to report organizationally to the Agency’s headquarters in D.C., the Agency changed her official duty station from D.C. to Buckley.  Then the Agency removed her from the unit.

On October 6, 2017, the Union filed a petition with the FLRA’s Washington Regional Office to clarify whether the employee’s position continues to be in the unit. 

In her decision dated January 19, 2018, the      RD stated that the express terms of the certification in this case require that employees be both             “employed by and located at” the Agency’s headquarters offices in D.C. in order to be included in the unit.^[2]  The RD found that, because the employee’s official duty station is no longer D.C., she no longer falls            “within the express terms” of the certification.^[3]  Accordingly, the RD dismissed the petition.

On March 20, 2018, the Union filed the application at issue here.  On April 4, 2018, the Agency filed an opposition to the Union’s application.

3. Analysis and Conclusions 

1. The Union has not demonstrated that the RD failed to apply established law.

The Union states that the Authority should grant the application because the RD failed to apply established law.^[4]  Under § 2422.31(c)(3)(i) of the Authority’s Regulations, the Authority may grant an application for review when there is a genuine issue over whether an   RD has failed to apply established law.^[5]

Here, the certification requires that, in order to be in the unit, an employee must both report to and be “located at” the Agency’s D.C. headquarters.^[6]  The     RD found that, because D.C. is no longer the employee’s official duty station, she does not fall within the express terms of the certification.^[7] 

The Union argues that, under Authority precedent, unit certifications should be read broadly to include employees, not to exclude them.^[8]  In this regard, the Union argues that the RD erred by considering only the employee’s geographic location, rather than the “location of the position . . . , where the work is assigned . . . , and where the work goes” – all of which are D.C., the Union claims.^[9]  To support its argument, the Union posits several examples in which it argues that the     RD’s “narrow[]” interpretation could cause an employee to lose his or her unit status.^[10] 

However, none of the Union’s examples involves the circumstances presented here:  an employee whose official duty station is not in the D.C. metropolitan area.  Further, the Union cites no authority for the proposition that the RD was required, as a matter of law, to interpret “located at” as meaning anything other than a geographic location.^[11]  In fact, Authority precedent supports the RD’s determination that the employee’s geographic location is a distinct requirement where, as here, the certification specifies that an employee must be located in a particular place in order to be included in a unit.^[12]  

Thus, the RD’s decision is consistent with Authority precedent, and the Union has not demonstrated that the RD failed to apply established law. 

2. The Union has not demonstrated that there is an absence of precedent.

The Union contends that “there is an absence of precedent” interpreting the term “located at” and addressing how telework affects an employee’s location for unit-status purposes.^[13]  According to the Union, finding that the term “located at” precludes teleworkers from being in a unit could lead to various               “absurd results.”^[14]  

Under § 2422.31(c)(1) of the Authority’s Regulations, the Authority may grant an application for review when the application demonstrates that the      RD’s decision raises an issue for which there is an absence of precedent.^[15] 

Here, for the reasons discussed above, we find that there is sufficient relevant Authority precedent supporting the RD’s determination.^[16]  And, as for the Union’s arguments regarding “absurd results” regarding teleworkers,^[17] we emphasize that the employee does not merely telework from Buckley; Buckley is her official duty station.  Therefore, the Union’s various arguments regarding how the RD’s decision would affect teleworking employees more broadly are misplaced:  This case does not present the issue of how telework, standing alone, affects unit status.  And our decision today should not be read as making any determinations on that issue; we will reserve any such determinations for future, appropriate cases.   

For the above reasons, we conclude that the Union has not demonstrated that, in the circumstances of this case, the RD’s decision raises an issue for which there is an absence of precedent.

IV.          Order

                We deny the Union’s application for review.

Member Abbott, dissenting:

I agree with my colleagues that the plain language of the certification appears, at first blush, as if it could be interpreted to exclude the employee from the bargaining unit.  But I do not agree that Department of the Army Headquarters, Fort Dix, Fort Dix, New Jersey (Fort Dix)1 should, or ever was intended to, be applied to the unique facts of this case.  In either event, Fort Dix does not resolve the unique questions raised by NTEU’s application for review. 

Therefore, I agree with NTEU that the automatic inclusion principle set forth in Fort Dix does not apply, and is not properly applied, to these circumstances. 

As Member Pizzella explained in NFFE FD‑1, IAMAW, AFL‑CIO (NFFE FD-1), Fort Dix held quite simply that “new employees (hired into previously existing positions) automatically become part of an existing bargaining unit when they fall within the existing certification for that bargaining unit.”2  While this case does not share the offensive characteristics of forced accretion or involuntary absorption that were addressed in NFFE FD-1, I agree with the premise set forth by Member Pizzella that there is no rationale to expand    Fort Dix further (and would in a future case reexamine that expansion) than it has been already − to     “employees placed operationally or geographically under another organization as the result of a reorganization and employees hired into newly created positions.”3  Even applying Fort Dix in its current iteration, the employee here is not a new employee, was not placed operationally or geographically under another organization as the result of a reorganization, and was not hired into a newly created position.

Therefore, I would conclude that the       Regional Director (RD) failed to apply established law by applying Fort Dix to these circumstances. 

I also agree with NTEU that there is an absence of precedent on which to determine whether the employee should continue to be included, or should be excluded, from the bargaining unit.  I would grant the Union’s application for review to determine how        “full-time teleworking outside the metropolitan area impact[s] an employee’s status in an established bargaining unit.”4

This much is clear.  It is now a common occurrence for employees to work remotely under a variety of telework arrangements – some based on agency policies, some based on provisions which have been collectively bargained, and others based on some combination of both.  What is not so clear is how far     (or in this case, how close) a bargaining-unit description – i.e. “and located at” – should be applied to employees who telework full-time.5  Here, the employee elected, and was permitted, to telework full-time from her home in Washington state even though she continues to report “organizationally” to the Washington, D.C. headquarters of the Environmental Protection Agency.6 

The question that is left begging is one that is faced regularly by agencies and unions in any metropolitan area which houses agency headquarters, regional, or area offices.  For example, at any agency, whose headquarters is located in Washington, DC, would the exclusion apply to an employee who opts to telework exclusively from Richmond, Virginia (110 miles)? Winchester, Virginia (75 miles)? Baltimore, Maryland (50 miles)? Manassas, Virginia (35 miles)?   Gaithersburg, Maryland (30 miles)?  In other words, is it reasonable to resolve the “and located at” question solely on the basis of a mileage determination?7 

Applying a geographic formula and Fort Dix to resolve the unique questions posed by this case provides no clarity or guidance to the federal labor-management relations community.  It can only lead to more disputes and litigation, a result that runs counter to the         Federal Service Labor-Management Relations Statute’s mandate that calls upon the Authority to            “facilitate[] and encourage[] the amicable settlements of disputes.”8  It is noteworthy that many bargaining-unit certifications came into existence prior to the widespread application of telework policies and those certifications could not have anticipated or taken into consideration such scenarios.9 

The impact of today’s decision will have implications that reach far beyond the one employee in this case.

For these reasons, I would grant NTEU’s application for review as presenting an issue for which there is an absence of precedent.  I also would have published an invitation-to-brief notice in the            Federal Register (prior to any decision) in order to afford the broader federal labor-management relations community the opportunity to provide their insights on these matters.