1 A/SLMR 63; P. 314; CASE NO. 50-4655; JUNE 24, 1971.
U.S. DEPARTMENT OF THE ARMY,
ROCK ISLAND ARSENAL,
ROCK ISLAND, ILLINOIS
A/SLMR NO. 63
THIS CASE, WHICH AROSE AS A RESULT OF A REPRESENTATION PETITION FILED
BY LOCAL NO. 1, INTERNATIONAL ASSOCIATION OF TOOL CRAFTSMEN (NFIU),
PRESENTED THE QUESTION WHETHER A UNIT COMPOSED OF TOOL AND GAUGE
CHECKERS SHOULD BE SEVERED FROM AN EXISTING PRODUCTION AND MAINTENANCE
UNIT REPRESENTED BY LODGE NO. 81, INTERNATIONAL ASSOCIATION OF
MACHINISTS, DISTRICT 102, AFL-CIO.
THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE CLAIMED UNIT
WERE IN FREQUENT CONTACT WITH OTHER ACTIVITY EMPLOYEES WHO WERE ENGAGED
IN THE ACTIVITY'S PRODUCTION PROCESS. HE NOTED THAT THERE WERE OTHER
EMPLOYEES AT THE ACTIVITY PERFORMING SIMILAR DUTIES WHO WERE NOT
INCLUDED IN THE PETITIONED FOR UNIT.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED, CITING
UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, THAT
SEVERANCE OF THE TOOL AND GAUGE CHECKERS FROM THE EXISTING PRODUCTION
AND MAINTENANCE UNIT WAS UNWARRANTED, PARTICULARLY WHERE THE EVIDENCE
REVEALED THAT THERE EXISTED AN ESTABLISHED, EFFECTIVE AND FAIR
COLLECTION BARGAINING RELATIONSHIP WITH RESPECT TO SUCH EMPLOYEES.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THE PETITION DISMISSED.
U.S. DEPARTMENT OF THE ARMY,
ROCK ISLAND ARSENAL,
ROCK ISLAND, ILLINOIS
AND
LOCAL NO. 1, INTERNATIONAL
ASSOCIATION OF TOOL CRAFTSMEN (NFIU)
AND
LODGE NO. 81, INTERNATIONAL ASSOCIATION
OF MACHINISTS, DISTRICT 102, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM J. THYER. THE HEARING
OFFICER'S RULING MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR AND
ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
ACTIVITY, THE PETITIONER, LOCAL NO. 1, INTERNATIONAL ASSOCIATION OF TOOL
CRAFTSMEN, NFIU, HEREIN CALLED IATC, AND THE INTERVENOR, LODGE NO. 81,
INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT 102, AFL-CIO, HEREIN
CALLED IAM, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE IATC SEEKS AN ELECTION IN THE FOLLOWING UNIT:
INCLUDING ALL TOOL AND GAUGE CHECKERS OF QUALITY ASSURANCE SECTION OF
THE U.S. ARMY ROCK
ISLAND ARSENAL IN THE PRODUCTION AND MAINTENANCE UNIT; EXCLUDING ALL
MANAGEMENT OFFICIALS,
SUPERVISORS, GUARDS, FEDERAL PERSONNEL WORKERS IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND
PROFESSIONAL EMPLOYEES. /1/
IT CLAIMS THAT THE EMPLOYEES IN THE PROPOSED UNIT CONSTITUTE AN
APPROPRIATE UNIT WHICH IS SEPARABLE FROM THE PRODUCTION AND MAINTENANCE
UNIT IN WHICH IT PRESENTLY IS INCLUDED, AND WHICH HAS BEEN REPRESENTED
BY THE IAM SINCE 1964. /2/
THE ACTIVITY AND THE IAM CONTEND THAT THE PETITIONED FOR UNIT DOES
NOT CONSTITUTE AN APPROPRIATE UNIT IN THAT THE EMPLOYEES SOUGHT DO NOT
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST. THE ACTIVITY
FURTHER CONTENDS THAT ESTABLISHMENT OF THE UNIT PROPOSED BY THE IATC
WOULD NOT PROVIDE FOR EFFICIENCY OF OPERATIONS.
THE PETITIONED FOR UNIT COMPRISES THE TOOL AND GAUGE INSPECTION
SECTION OF THE INSPECTION CONTROL BRANCH OF THE ACTIVITY'S QUALITY
ASSURANCE DIVISION. THE DIVISION IS DIRECTLY RESPONSIBLE TO THE
ACTIVITY'S COMMANDING OFFICER. THE DUTIES OF THE 12 EMPLOYEES IN THE
CLAIMED UNIT ARE TO PERFORM IN-PROCESS AND FINAL INSPECTION OF A VARIETY
OF INSPECTION EQUIPMENT, GAUGES, TOOLS, JIGS AND FIXTURES WHICH ARE
EITHER MANUFACTURED BY THE ACTIVITY, OR BY PRIVATE COMPANIES UNDER
CONTRACT WITH THE GOVERNMENT. IN ADDITION, THEIR DUTIES INCLUDE REGULAR
PERIODIC INSPECTIONS OF INSPECTION EQUIPMENT, GAUGES, ETC., WHICH ARE IN
USE AND STORED IN TOOL CRIBS LOCATED AT VARIOUS SITES THROUGHOUT THE
ACTIVITY'S MANUFACTURING COMPLEX. THE EMPLOYEES IN THE UNIT SOUGHT ARE
ASSIGNED TO ONE OF THREE LOCATIONS WITHIN THE ACTIVITY.
THE RECORD DISCLOSES THAT IN THE PERFORMANCE OF THEIR DUTIES
EMPLOYEES IN THE PETITIONED FOR UNIT ARE IN FREQUENT CONTACT WITH OTHER
ACTIVITY EMPLOYEES WHO ARE CONCERNED IN THE ACTIVITY'S PRODUCTION
PROCESS, INCLUDING ENGINEERS, DESIGNERS, TOOLMAKERS, TOOK GRINDERS AND,
ON OCCASION, ARE REQUIRED TO CONSULT WITH MACHINE PARTS INSPECTORS WHO
ARE INVOLVED IN THE MANUFACTURING PROCESS AND ARE NOT INCLUDED IN THE
CLAIMED UNIT.
THE RECORD FURTHER REVEALS THAT EMPLOYEES WHO PROGRESS INTO THE
POSITIONS WITHIN THE PETITIONED FOR UNIT USUALLY COME FROM
CLASSIFICATIONS, SUCH AS MACHINE PARTS INSPECTOR, MACHINING INSPECTOR,
SMALL ARMS INSPECTOR, OR ARTILLERY AND COMBAT VEHICLE INSPECTOR, ALL OF
WHICH ARE INCLUDED IN THE ACTIVITY'S PRODUCTION AND MAINTENANCE UNIT AND
ARE OUTSIDE THE CLAIMED UNIT. /3/ THE EVIDENCE ALSO DEMONSTRATES THAT
ALL OF THE ACTIVITY'S INSPECTORS, WHETHER INCLUDED OR EXCLUDED FROM THE
PROPOSED UNIT, PERFORM BASICALLY SIMILAR DUTIES. FOR EXAMPLE, THEY ALL
WORK WITH SPECIAL TECHNICAL EQUIPMENT, INCLUDING MEASURING AND
CALIBRATING DEVICES; THEY ALL INSPECT EITHER MEASURING DEVICES AND/OR
PRODUCTION PIECES, REJECTING FAULTY PIECES AND SETTING FORTH THE REASONS
FOR REJECTION; AND, THEY CONFER WITH ENGINEERING AND DESIGN EMPLOYEES,
AS WELL AS SUPERVISION AND PRODUCTION EMPLOYEES, REGARDING PROBLEMS
ENCOUNTERED IN THEIR DUTIES. /4/
AS NOTED ABOVE, THE RECORD DISCLOSES THAT IN 1964 THE ACTIVITY
ACCORDED THE IAM EXCLUSIVE RECOGNITION FOR A PRODUCTION AND MAINTENANCE
UNIT. THE EVIDENCE ESTABLISHES THAT SINCE EXCLUSIVE RECOGNITION WAS
GRANTED TO THE IAM, IT HAS PROCESSED AN AVERAGE OF 40-50 GRIEVANCES PER
YEAR, AND HAS PARTICIPATED IN FOUR ADVISORY ARBITRATION PROCEEDINGS.
FURTHER, THERE IS NO EVIDENCE THAT THE IAM HAS EVER FAILED OR REFUSED TO
REPRESENT ANY EMPLOYEES IN ITS PRODUCTION AND MAINTENANCE UNIT,
INCLUDING THE EMPLOYEES IN THE PETITIONED UNIT.
BASED ON THE FOREGOING, I FIND NO BASIS FOR SEVERING THE UNIT SOUGHT
BY THE IATC IN THIS CASE FROM THE PRODUCTION AND MAINTENANCE UNIT
PRESENTED CURRENTLY BY THE IAM. AS I STATED IN UNITED STATES NAVAL
CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, WHERE, THE EVIDENCE SHOWS
THAT AN ESTABLISHED, EFFECTIVE AND FAIR COLLECTIVE BARGAINING
RELATIONSHIP IS IN EXISTENCE, A SEPARATE UNIT CARVED OUT OF THE EXISTING
UNIT WILL NOT BE FOUND TO BE APPROPRIATE EXCEPT IN UNUSUAL
CIRCUMSTANCES. THE EVIDENCE IN THE SUBJECT CASE REVEALS THAT DURING THE
PERIOD IN WHICH THE IAM HAS BEEN THE EXCLUSIVE REPRESENTATIVE OF THE
EMPLOYEES IN THE PRODUCTION AND MAINTENANCE UNIT, THE EMPLOYEES INCLUDED
THEREIN HAVE BEEN REPRESENTED EFFECTIVELY. INDEED, THERE WAS NO
CONTENTION THAT THE IAM HAS FAILED TO REPRESENT THE EMPLOYEES IN THE
PETITIONED FOR UNIT IN A FAIR AND EFFECTIVE MANNER. IN THESE
CIRCUMSTANCES, I SHALL DISMISS THE PETITION IN THE SUBJECT CASE. /5/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 50-4655, BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 24, 1971
/1/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
/2/ AS A CONSEQUENCE OF AN ARBITRATOR'S OPINION, THE ACTIVITY, IN
ADDITION TO EXTENDING RECOGNITION TO THE IAM, ALSO EXTENDED RECOGNITION
TO THE IATC FOR A UNIT COMPOSED OF NONSUPERVISORY TOOL ROOM EMPLOYEES;
AND, TO THE INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, LOCAL NO.
1200, FOR A UNIT OF NONSUPERVISORY EMPLOYEES IN PLANT UTILITIES. IN
ADDITION TO THE ABOVE-DESCRIBED UNITS, THE FOLLOWING EMPLOYEES AT THE
ACTIVITY ARE REPRESENTED SEPARATELY: GUARDS; FIREFIGHTERS;
NONAPPROPRIATED FUND EMPLOYEES IN THE POST RESTAURANT; AND, THREE
ADDITIONAL EMPLOYEE UNITS LOCATED AT THE HEADQUARTERS, U.S. ARMY WEAPONS
COMMAND, AND THE IOWA ARMY AMMUNITION PLANT.
/3/ THE RECORD DISCLOSES THAT EIGHT OF THE PRESENT 12 TOOL AND GAUGE
CHECKERS SERVED IN ONE OF THESE CLASSIFICATIONS IMMEDIATELY PRIOR TO
THEIR PRESENT ASSIGNMENT.
/4/ THE ONLY DISTINCTION WHICH APPEARS IS THAT TOOL AND GAUGE
INSPECTORS WORK WITH MORE SOPHISTICATED EQUIPMENT, AND WORK TO CLOSER
TOLERANCE THAN DO THE OTHER INSPECTORS.
/5/ CF. ALSO BOSTON NAVAL SHIPYARD, A/SLMR NO. 18.
1 A/SLMR 62; P. 311; CASE NO. 70-1821; JUNE 24, 1971.
HUNTERS POINT NAVAL SHIPYARD,
DEPARTMENT OF NAVY,
SAN FRANCISCO, CALIFORNIA
A/SLMR NO. 62
THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT INSPECTORS, UNIT
20 (NAGI), SOUGHT AN ELECTION AMONG CERTAIN INSPECTORS AT THE HUNTERS
POINT NAVAL SHIPYARD, SAN FRANCISCO, CALIFORNIA. THE ACTIVITY AND THE
HUNTERS POINT METAL TRADES COUNCIL AFL-CIO (MTC), WHICH HAS BEEN THE
EXCLUSIVE REPRESENTATIVE OF AN ACTIVITY-WIDE UNIT OF WAGE BOARD
PRODUCTION AND MAINTENANCE EMPLOYEES, INCLUDING THE INSPECTORS SOUGHT BY
THE NAGI, SINCE 1963, CONTESTED THE APPROPRIATENESS OF THE UNIT SOUGHT
BY THE NAGI, CONTENDING THAT THE INSPECTORS DID NOT POSSESS A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST APART FROM THE OTHER ACTIVITY
EMPLOYEES IN THE PRODUCTION AND MAINTENANCE UNIT CURRENTLY IN EXISTENCE.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE NAGI WAS
NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN REACHING
THIS DETERMINATION THE ASSISTANT SECRETARY NOTED THE FACT THAT THE
CLAIMED UNIT DID NOT ENCOMPASS ALL OF THE ACTIVITY'S INSPECTORS; THE
EMPLOYEES IN THE CLAIMED UNIT WERE SUBJECT TO THE SAME CONDITIONS OF
EMPLOYMENT AS ALL OTHER ACTIVITY EMPLOYEES; THE WORK PERFORMED BY THE
INSPECTORS WAS AN INTEGRAL PART OF THE CONTINUOUS PRODUCTION PROCESS
PERFORMED BY THE ACTIVITY WHICH REQUIRED CONSTANT INTERACTION BETWEEN
INSPECTORS AND OTHER PRODUCTION EMPLOYEES; INSPECTORS HAD ALMOST
CONSTANT FUNCTIONAL AND "DIRECT" CONTACT WITH PRODUCTION EMPLOYEES;
INSPECTORS WERE OFTEN CALLED UPON TO PERFORM "PRODUCTION WORK" AND
PRODUCTION EMPLOYEES DID SOME INSPECTION WORK; INSPECTORS GENERALLY
CAME FROM THE RANKS OF THE PRODUCTION EMPLOYEES AND RETAINED THEIR
SENIORITY IN THEIR RESPECTIVE TRADES AND COULD "BUMP BACK" IN CASE OF A
REDUCTION-IN-FORCE; IN SOME INSTANCES INSPECTORS AND PRODUCTION
EMPLOYEES HAD COMMON SUPERVISION; AND INSPECTORS AND PRODUCTION
EMPLOYEES SHARED SUCH FACILITIES AS PARKING LOTS, RESTROOMS AND
CAFETERIAS. IN REACHING HIS DECISION, THE ASSISTANT SECRETARY ALSO
NOTED THAT THERE WAS NO EVIDENCE THAT EMPLOYEES IN THE CLAIMED UNIT HAD
NOT BEEN EFFECTIVELY AND FAIRLY REPRESENTED BY THE MTC.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
EMPLOYEES IN THE REQUESTED UNIT DID NOT POSSESS A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST APART FROM OTHER PRODUCTION AND MAINTENANCE
EMPLOYEES, AND THAT SUCH A UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS OR
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, THE ASSISTANT SECRETARY
ORDERED THAT THE PETITION BE DISMISSED.
HUNTERS POINT NAVAL SHIPYARD,
DEPARTMENT OF NAVY,
SAN FRANCISCO, CALIFORNIA
AND
NATIONAL ASSOCIATION OF GOVERNMENT
INSPECTORS, UNIT 20
AND
HUNTERS POINT METAL
TRADES COUNCIL, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER JOHN J. JORDAN. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED
HEREIN, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT INSPECTORS,
UNIT 20, HEREIN CALLED NAGI, SEEKS AN ELECTION IN THE FOLLOWING UNIT:
STRUCTURAL INSPECTORS, P.W.; MECHANICAL INSPECTORS P.W.; ELECTRICAL
INSPECTORS
P.W.; CONTRACT SERVICE INSPECTOR, P.W.; SHIPS HULL INSPECTOR; SHIPS
ELECTRICAL
INSPECTOR; SHIPS MECHANICAL INSPECTOR; SHIPS PIPING INSPECTOR;
TESTS SPECIALIST (SHIPS
MECHANICAL SYSTEMS) (SHIPS ELECTRICAL SYSTEMS); INSPECTORS METAL A,
B, AND C; MACHINERY
INSPECTOR (06) AND GENERAL EQUIPMENT A INSPECTOR (50); EXCLUDING
MANAGEMENT OFFICIALS,
SUPERVISORS, GUARDS AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY.
THE ACTIVITY TAKES THE POSITION THAT THE PROPOSED UNIT IS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BECAUSE (1) IT
EXCLUDES A GROUP OF INSPECTORS WHO PERFORM ESSENTIALLY THE SAME DUTIES
AND HAVE THE SAME RESPONSIBILITIES AS THE INSPECTORS PETITIONED FOR;
(2) THE EMPLOYEES SOUGHT DO NOT HAVE SEPARATE AND UNIQUE INTERESTS
DISTINGUISHABLE FROM THOSE OF THE PRODUCTION AND MAINTENANCE WORKERS;
(3) THE PROPOSED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS; (4) THE PATTERN OF BARGAINING IN THE
INDUSTRY HAS BEEN ACTIVITY-WIDE AND (5) THE DUTIES OF THE INSPECTORS ARE
INTRICATELY INTERRELATED WITH AN INTEGRATED WORK FLOW INVOLVING MANY
CRAFTS AND SKILLS EXCLUDED FROM THE PROPOSED UNIT.
THE HUNTERS POINT METAL TRADES COUNCIL, AFL-CIO, HEREIN CALLED MTC,
CONTENDS THAT THE EXISTING ACTIVITY-WIDE UNIT, WHICH INCLUDES THE
PETITIONED FOR EMPLOYEES, IS APPROPRIATE BECAUSE (1) IT HAS REPRESENTED
THE EMPLOYEES HEREIN INVOLVED FOR THE PAST SIX YEARS, UNDER THREE
SEPARATE TWO YEAR AGREEMENTS, IN A FAIR AND EQUITABLE MANNER; (2) THE
JOB OF INSPECTOR IS PRIMARILY A PROGRESSION STEP WITHIN THE OVERALL
TRADE STRUCTURE; AND (3) IN THE EVENT OF A REDUCTION-IN-FORCE
INSPECTORS HAVE THE RIGHT TO BUMP BACK INTO THEIR FORMER RESPECTIVE
TRADES.
THE RECORD REVEALS THAT SINCE 1963 THE MTC HAS BEEN THE EXCLUSIVE
BARGAINING REPRESENTATIVE FOR AN ACTIVITY-WIDE UNIT OF ALL WAGE BOARD
EMPLOYEES, WHICH INCLUDES THE INSPECTORS SOUGHT BY THE NAGI AND, AS
NOTED ABOVE, DURING THIS PERIOD THERE HAVE BEEN THREE, TWO YEAR
AGREEMENTS COVERING SUCH EMPLOYEES.
THE OVERALL GOALS AND FUNCTIONS OF THE ACTIVITY ARE TO OVERHAUL,
CONVERT, REPAIR AND BUILD SHIPS FOR THE UNITED STATES NAVY. THE
ACTIVITY IS HEADED BY SHIPYARD COMMANDER WHO IS IN CHARGE OF ITS
FOURTEEN DEPARTMENTS, WHICH, IN TURN, ARE SUBDIVIDED INTO BRANCHES OR
SECTIONS. THERE ARE A TOTAL OF FIVE DEPARTMENTS THAT CONTAIN THE WAGE
BOARD INSPECTORS-- PRODUCTION, SUPPLY, PUBLIC WORKS, QUALITY AND
RELIABILITY ASSURANCE (Q & RA) AND MEDICAL. /1/
THE MISSION OF THE PRODUCTION DEPARTMENT IS TO ASSURE THAT ALL OF THE
EQUIPMENT IN THE SHIPYARD AND IN THE PRODUCTION AREA IS MAINTAINED FOR
PRODUCTION PURPOSES, AND TO INSTALL, MAINTAIN AND REMOVE ALL EQUIPMENT
THAT COMES INTO OR GOES OUT OF THE SHIPYARD. IN THE PRODUCTION
DEPARTMENT THERE ARE FOUR INSPECTORS, CLASSIFIED AS MACHINERY
INSPECTORS, WHO REPORT TO A PRODUCTION FOREMAN (MECHANICAL OR
ELECTRICAL) WHO IS SUPERVISED BY THE GENERAL MAINTENANCE FOREMAN. IN
ADDITION TO THE INSPECTORS, THE PRODUCTION FOREMAN ALSO SUPERVISES
MACHINISTS, MAINTENANCE MACHINISTS, MACHINE OPERATORS, ELECTRICIANS, AND
APPRENTICES IN THE VARIOUS TRADES.
INSPECTORS IN THE PRODUCTION DEPARTMENT VISIT THE VARIOUS SHOPS IN
EACH OF THE 35 OR 40 BUILDINGS IN THE SHIPYARD THAT HAVE PRODUCTION TYPE
EQUIPMENT AND WITHIN A PERIODIC CYCLE, INSPECT SUCH EQUIPMENT AND REPORT
ANY MALFUNCTIONS OR BROKEN PARTS ON THE MACHINES. AS A NORMAL PART OF
HIS ASSIGNED DUTIES, IF THE MACHINERY INSPECTOR FINDS SOMETHING OUT OF
ORDER WHICH CAN BE ADJUSTED OR REPAIRED WITHIN ONE HOUR, HE PERFORMS THE
WORK HIMSELF. HOWEVER, IF THE ADJUSTMENT OR REPAIR REQUIRES MORE THAN
ONE HOUR'S WORK, THE INSPECTOR MAKES A REPORT TO HIS SUPERVISOR
INDICATING WHAT HAS TO BE REPAIRED. IN SUCH AN EVENT, THE WORK WILL
THEN BE PERFORMED BY A PRODUCTION DEPARTMENT EMPLOYEE. WHEN PERFORMING
MINOR ADJUSTMENTS AND REPAIRS, THE MACHINERY INSPECTORS PERFORM THE SAME
TYPE OF MAINTENANCE WORK AS THE PRODUCTION EMPLOYEES. ONCE THE
INSPECTION CYCLE IS COMPLETED, MACHINERY INSPECTORS ARE ASSIGNED REGULAR
MAINTENANCE WORK, AND THEY CARRY THE SAME TOOLS AS DO MACHINISTS OR
ELECTRICIANS IN PERFORMING THEIR WORK.
THE MISSION OF THE PUBLIC WORKS DEPARTMENT IS TO INSPECT AND REPORT
THE PHYSICAL CONDITION OF ALL FACILITIES AND UTILITIES AT THE ACTIVITY.
IN THE PROPOSED UNIT THE NAGE SEEKS FIVE INSPECTORS IN THE PUBLIC WORKS
DEPARTMENT, NAMELY: THREE STRUCTURAL INSPECTORS, ONE MACHANICAL
INSPECTOR AND ONE ELECTRICAL INSPECTOR. THE RECORD REVEALS THAT THERE
ARE APPROXIMATELY SEVEN INSPECTORS IN THE PUBLIC WORKS DEPARTMENT,
CLASSIFIED AS AUTOMOTIVE REPAIR INSPECTORS, ELECTRICAL REPAIR INSPECTOR,
AND HEAVY DUTY EQUIPMENT REPAIR INSPECTOR, WHO THE NAGI SEEKS TO EXCLUDE
FROM THE PROPOSED UNIT. INSPECTORS IN THIS DEPARTMENT ARE SUPERVISED BY
AN INSPECTOR SUPERVISOR OF PUBLIC WORKS.
IN CARRYING OUT THEIR DUTIES PUBLIC WORKS DEPARTMENT INSPECTORS HAVE
SCHEDULED ROUTES WHICH TAKE THEM TO EVERY POINT IN THE SHIPYARD,
INSPECTING BUILDINGS, STRUCTURES AND UTILITY LINES. AFTER GOING THROUGH
THE SHIPYARD AND NOTING DEFICIENCIES, THE INSPECTOR REPORTS HIS FINDINGS
TO THE INSPECTOR SUPERVISOR. THE WORK IS THEREAFTER PERFORMED BY
EMPLOYEES FROM THE VARIOUS PRODUCTION AND MAINTENANCE SHOPS.
THE MISSION OF THE SUPPLY DEPARTMENT IS TO REQUISITION, RECEIVE,
SEGREGATE AND DELIVER NECESSARY MATERIALS REQUIRED BY THE SHIPYARD TO
PERFORM THEIR FUNCTIONS. THIS DEPARTMENT IS BROKEN DOWN INTO SIX
SECTIONS. IN THE SUPPLY DEPARTMENT THERE ARE THREE GENERAL EQUIPMENT
"INSPECTORS A". THEY ARE UTILIZED PRIMARILY TO INSPECT MATERIALS
PURCHASED FROM CONTRACTORS AND VENDORS. THEIR PRIMARY DUTY INVOLVES THE
ASSESSMENT OF MATERIALS THROUGH VISUAL AND DIMENSIONAL INSPECTION WITH
RESPECT TO CONTRACTOR REQUIREMENTS. THERE IS A CENTRAL RECEIVING AREA
WHERE ALL INCOMING MATERIAL ASSIGNED TO THE SHIPYARD IS RECEIVED AND
INSPECTED. THE EVIDENCE REVEALS THAT ALL THE INSPECTORS IN THE SUPPLY
DEPARTMENT WORK IN A SINGLE BUILDING AND, ALTHOUGH NOT PHYSICALLY
SEGREGATED FROM THE OTHER EMPLOYEES, THEY HAVE A PARTICULAR WORK AREA
WHICH CONSISTS OF SOME WORK BENCHES AND DESKS.
PURCHASES IN EXCESS OF $2,500 ARE BROUGHT DIRECTLY TO SUPPLY
DEPARTMENT INSPECTORS, OR INSPECTION. HOWEVER, NORMALLY, FOR PURCHASES
UNDER $2,500, THE INSPECTION OF MATERIALS IS LEFT TO THE ULTIMATE USER.
IF THERE IS A DISCREPANCY IN THIS REGARD THE MATERIAL IS THEN TAKEN TO
THE SUPPLY DEPARTMENT WHERE THE INSPECTOR MAKES A DETAILED INSPECTION.
THERE IS ALSO A "C.O.D. PROGRAM" WHEREBY THE ACTIVITY GOES DIRECTLY TO
VARIOUS VENDORS IN THE AREA, PICKS UP THE MATERIAL AND PAYS FOR IT IN
CASH, OR HAS THE VENDOR DELIVER THE MATERIAL TO THE SHIPYARD. IN SUCH
CIRCUMSTANCES, WAREHOUSEMEN MAY INSPECT THE MATERIAL RECEIVED, WHETHER
OR NOT IT IS UNDER $2,500, BY RECONCILING THE PACKING SLIP WITH THE
PURCHASE ORDER AND CHECKING STOCK AND MODEL NUMBERS. IF THEY AGREE,
THIS IS CONSIDERED ACCEPTANCE OF THE MATERIAL. HOWEVER, IF THE
WAREHOUSEMAN IS NOT ABLE TO "MARRY" THE DOCUMENTS, AN INSPECTOR ON THE
SAME RECEIVING FLOOR IS CALLED FOR ASSISTANCE.
THE MISSION OF THE QUALITY AND RELIABILITY ASSURANCE DEPARTMENT (Q &
RA), UNDER THE OVERALL SUPERVISION OF THE SUPERVISORY QUALITY CONTROL
SPECIALIST, IS TO INSPECT WHICH WORK IS BEING PERFORMED BY THE
PRODUCTION SHOPS TO ASSURE THAT THE WORK IS BEING PERFORMED TO
SPECIFICATIONS. REPORTING TO THE SUPERVISORY QUALITY CONTROL SPECIALIST
ARE THE SENIOR SUPERVISOR, SUPERVISOR INSPECTOR AND ASSOCIATE
SUPERVISOR.
MORE THAN 70 OF THE 83 TO 91 INSPECTORS IN THE PROPOSED UNIT WORK IN
Q & RA. THERE ARE THREE TYPES OF INSPECTORS IN Q & RA: THEY ARE
SITUATED IN FOUR DIFFERENT BUILDINGS AT THE ACTIVITY. THE TEST
SPECIALIST IS ONE PROMOTIONAL STEP HIGHER THAN THE SHIPBUILDER INSPECTOR
AND THE METAL INSPECTOR. HE, IN TURN, IS SUPERVISED BY A SUPERVISORY
INSPECTOR, (SHIPBUILDING) WHO ASSIGNS TESTS, INSURES ADHERENCE TO
REQUIREMENTS, AND REVIEWS ALL TEST REPORTS. THE TEST SPECIALIST
TYPICALLY DIRECTS "TEST GROUPS" OF FROM 4 TO 8 MECHANICS, INSPECTORS AND
SHIPS FORCE PERSONNEL. HE IS RESPONSIBLE FOR SAFETY OF ASSIGNED SYSTEMS
AND PERSONNEL INVOLVED.
THE RECORD INDICATES THAT ALL Q & RA INSPECTORS CONDUCT WHAT ARE
TERMED "IN PROCESS INSPECTIONS" WHERE AT A GIVEN POINT IN THE PRODUCTION
PROCESS AN INSPECTION IS ACCOMPLISHED. AFTER THE "IN PROCESS
INSPECTION", THE INSPECTOR WILL APPROVE DOCUMENTS OR INDICATE THAT
INSPECTIONS AT THAT POINT ARE SATISFACTORY AND THE PRODUCTION WORK WILL
CONTINUE. NORMALLY, THE NEXT STAGE OF PRODUCTION CANNOT BE COMPLETED
UNTIL THE INSPECTION IS ACCOMPLISHED. THE INSPECTORS ALSO LOOK AT
MATERIAL DETERMINED TO BE CRITICAL TO THE CONSTRUCTION OF THE SHIP,
PERFORMING VARIOUS TESTS TO DETERMINE WHETHER THE MATERIAL MEETS
SPECIFICATION REQUIREMENTS. IN CARRYING OUT THEIR DUTIES THEY WILL WORK
THROUGHOUT THE SHIPYARD, WORKING CLOSELY WITH THE VARIOUS TRADES AND
WITH PRODUCTION SUPERVISION.
THE DUTIES OF THE RADIATION MONITOR IN THE MEDICAL DEPARTMENT INCLUDE
MAINTENANCE AND INSPECTION OF ALL SHIPYARD AREAS WHERE RADIOISOTOPES,
X-RAY MACHINES, OR OTHER SOURCES OF IONIZING RADIATION ARE USED OR
STORED. THE RADIATION MONITOR IS SUPERVISED BY A HEALTH PHYSICIST. /2/
WITH RESPECT TO OVERALL WORKING CONDITIONS, THE RECORD REVEALS THAT
TO QUALIFY FOR EMPLOYMENT AS AN INSPECTOR, IT IS NOT REQUIRED THAT A
FORMAL APPRENTICESHIP PROGRAM BE COMPLETED. THE EVIDENCE ESTABLISHES
THAT MOST OF THE INSPECTORS HAVE COME FROM THE VARIOUS "TRADES" IN THE
SHIPYARD. IN THIS CONNECTION, THE RECORD REVEALS THAT THE JOB OF
INSPECTOR IS PRIMARILY A PROGRESSION STEP WITHIN THE TRADE STRUCTURE.
THUS, IN THE EVENT OF A REDUCTION-IN-FORCE, INSPECTORS RETAIN THE RIGHT
TO BUMP BACK INTO THEIR RESPECTIVE TRADES.
THE RECORD DISCLOSES THAT THE FUNCTIONS PERFORMED BY INSPECTORS ARE
PART OF AN INTEGRATED PROCESS WHEREBY THE INTERACTIONS OF INSPECTORS AND
PRODUCTION AND MAINTENANCE EMPLOYEES ARE NECESSARY FOR THE COMPLETION OF
THE ACTIVITY'S MISSION. THE TASKS OF THE INSPECTORS CONSTANTLY TAKE
THEM INTO THE PRODUCTION AREAS WHERE THEY HAVE BOTH FUNCTIONAL AND
DIRECT CONTACT WITH PRODUCTION EMPLOYEES. FURTHER, MOST INSPECTORS HAVE
BEEN PROMOTED FROM THE RANKS OF THE TRADES WORKING THROUGHOUT THE
ACTIVITY. IN THIS REGARD, THE RECORD INDICATES THEY ARE OCCASIONALLY
CALLED UPON TO PERFORM TASKS IDENTICAL TO THOSE ASSIGNED PRODUCTION
EMPLOYEES. TESTIMONY REVEALS ALSO THAT PRODUCTION WORKERS AT TIMES
PERFORM CERTAIN INSPECTION WORK. MOREOVER, IN AT LEAST ONE DEPARTMENT,
INSPECTORS AND PRODUCTION EMPLOYEES ARE UNDER THE SAME SUPERVISION. THE
EVIDENCE ALSO ESTABLISHES THAT THE SAME CONDITIONS OF EMPLOYMENT, SUCH
AS PARKING, RESTROOMS AND CAFETERIAS ARE SHARED BY BOTH INSPECTORS AND
PRODUCTION EMPLOYEES.
BASED ON THE FOREGOING AND NOTING THE FACT THAT THE PETITIONED FOR
UNIT DOES NOT INCLUDE ALL OF THE ACTIVITY'S INSPECTORS, THE INTEGRATED
NATURE OF THE ACTIVITY'S OPERATIONS, AND THE ABSENCE OF ANY EVIDENCE
THAT EMPLOYEES IN THE CLAIMED UNIT HAVE NOT BEEN EFFECTIVELY AND FAIRLY
REPRESENTED BY THE MTC, /3/ I FIND THAT THE UNIT SOUGHT BY THE NAGI IS
NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION SINCE THE
EMPLOYEES IN SUCH UNIT DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST APART FROM OTHER PRODUCTION AND MAINTENANCE EMPLOYEES AND
SUCH A UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
OPERATION. /4/
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 70-1821 BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 24, 1971
/1/ THE RECORD REVEALS THAT THE NAGI SEEKS TO EXCLUDE SOME OF THE
ACTIVITY'S INSPECTORS IN THE PUBLIC WORKS DEPARTMENT AND THE ONE
INSPECTOR IN THE MEDICAL DEPARTMENT.
/2/ AS NOTED ABOVE, THE NAGI SEEKS TO EXCLUDE THIS INSPECTOR.
/3/ CF. UNITED STATES NAVAL CONSTRUCTION BATTALION, A/SLMR NO. 8 AND
BOSTON NAVAL SHIPYARD, A/SLMR NO. 18.
/4/ THE NAGI IN ITS BRIEF SUGGESTS AS AN ALTERNATIVE UNIT, A UNIT
CONSISTING ENTIRELY OF INSPECTORS WITHIN THE Q & RA. FOR THE REASONS
STATED ABOVE, I FIND THAT SUCH A UNIT WOULD SIMILARLY BE INAPPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
1 A/SLMR 61; P. 308; CASE NO. 70-1527; JUNE 23, 1971.
DEPARTMENT OF THE NAVY,
NAVAL AIR REWORK FACILITY,
NAVAL AIR STATION,
ALAMEDA, CALIFORNIA
A/SLMR NO. 61
THIS CASE INVOLVED A PETITION BY THE CALIBRATION LABORATORY
ASSOCIATION FOR A UNIT CONSISTING OF APPROXIMATELY 200 EMPLOYEES WORKING
IN THE NAVY CALIBRATION AND THE INDUSTRIAL CALIBRATION LABORATORIES
LOCATED IN THE ACTIVITY'S PRODUCTION AND PRODUCTION ENGINEERING
DEPARTMENTS, RESPECTIVELY.
THE PETITIONER CONTENDED THAT THE EMPLOYEES IN THE PROPOSED UNIT WERE
ALL ENGAGED IN THE CALIBRATION OF MEASURING INSTRUMENTS AND THAT THEY
CONSTITUTED AN APPROPRIATE UNIT UNDER EXECUTIVE ORDER 11491.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE ASSOCIATION
WAS NOT APPROPRIATE. IN THIS REGARD, THE EVIDENCE REVEALED THAT THE
PROPOSED UNIT DID NOT INCLUDE A NUMBER OF EMPLOYEES WORKING ELSEWHERE IN
THE ACTIVITY IN THE SAME CLASSIFICATIONS SOUGHT. IN ADDITION, THE
EVIDENCE INDICATED THAT EMPLOYEES IN THE PROPOSED UNIT WORKED IN
DIFFERENT DEPARTMENTS HAD SEPARATE SUPERVISION, WERE LOCATED IN
DIFFERENT BUILDINGS AND PERFORMED DISTINCT SPECIALIZED FUNCTIONS ON
DIFFERENT TYPES OF TEST EQUIPMENT. ALSO FOUND RELEVANT WAS THE
INTEGRATED NATURE OF THE ACTIVITY'S PRODUCTION AND MAINTENANCE
OPERATION.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE UNIT
PETITIONED FOR WAS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION SINCE EMPLOYEES DID NOT POSSESS A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST APART FROM PRODUCTION AND MAINTENANCE EMPLOYEES,
AND SUCH A UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
DEPARTMENT OF THE NAVY,
NAVAL AIR REWORK FACILITY,
NAVAL AIR STATION,
ALAMEDA, CALIFORNIA
AND
CALIBRATION LABORATORY ASSOCIATION
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER HENRY C. LEE. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. PETITIONER, CALIBRATION LABORATORY ASSOCIATION, HEREIN CALLED THE
ASSOCIATION SEEKS TO REPRESENT EMPLOYEES IN A UNIT OF "ALL EMPLOYEES OF
THE NAVY CALIBRATION LABORATORY, SECTION 943.30 AND ALL EMPLOYEES OF THE
INDUSTRIAL CALIBRATION LABORATORY, SECTION 662.40." /1/
THE ACTIVITY CONTENDS THAT THE UNIT SOUGHT IS INAPPROPRIATE ON
GROUNDS THAT (1) THE EMPLOYEES CONCERNED DO NOT CONSTITUTE A CRAFT OR A
GROUP WITH A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST; (2) ANY
COMMUNITY OF INTEREST WHICH THE EMPLOYEES CONCERNED ENJOY BY REASON OF
THEIR SKILLS AND TRAINING HAS BEEN SUBMERGED IN THE BROADER COMMUNITY OF
INTEREST WHICH THEY SHARE WITH OTHER PRODUCTION AND MAINTENANCE
EMPLOYEES; AND (3) SEPARATE REPRESENTATION FOR THE EMPLOYEES IN THE
CLAIMED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OF
AGENCY OPERATIONS.
ON THE OTHER HAND, THE ASSOCIATION CONTENDS THAT THE EMPLOYEES IN THE
PROPOSED UNIT ARE ALL ENGAGED IN THE CALIBRATION OF MEASURING
INSTRUMENTS, WHICH IS A DISTINCT CRAFT, AND THAT SUCH EMPLOYEES COMPRISE
A UNIT WHICH MEETS THE "COMMUNITY OF INTEREST" CRITERIA OF EXECUTIVE
ORDER 11491. /2/ THE ASSOCIATION FURTHER ASSERTS THAT THE ESTABLISHMENT
OF THE UNIT PETITIONED FOR WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. /3/
THE NAVAL AIR REWORK FACILITY AT ALAMEDA, CALIFORNIA IS AN INDUSTRIAL
ACTIVITY OF THE NAVAL SHORE ESTABLISHMENT UNDER THE DIRECTION OF THE
COMMANDER, NAVAL AIR SYSTEM COMMAND. IT COMPRISES A LARGE INDUSTRIAL
COMPLEX WHICH INCLUDES APPROXIMATELY 50 BUILDINGS AND IS ONE OF THE
MAJOR MAINTENANCE REPAIR MODIFICATION PLANTS ON THE WEST COAST. THE
ACTIVITY PERFORMS A FULL RANGE OF DEPOT LEVEL MAINTENANCE FUNCTIONS
INCLUDING COMPLETE IN-SERVICE MAINTENANCE ON FREIGHT AIRCRAFT AND THE
TESTING AND CALIBRATION OF DESIGNATED WEAPON SYSTEMS, SUCH AS AIR CRAFT
MISSILES, THEIR COMPONENT AERONAUTICAL SYSTEMS AND ASSOCIATED
ACCESSORIES.
ORGANIZATIONALLY, THE ACTIVITY IS SUB-DIVIDED INTO THREE
DIRECTORATES, EIGHT DEPARTMENTS, THREE DIVISIONS AND SEVENTY-SIX
BRANCHES. THREE OF THE LARGER DEPARTMENTS ARE FURTHER SUB-DIVIDED INTO
101 SECTIONS AND 260 FUNCTIONAL SHOP GROUPS AND WORK CENTERS.
IN CARRYING OUT ITS MISSION, THE ACTIVITY OPERATES WITH APPROXIMATELY
7,000 MILITARY AND CIVILIAN EMPLOYEES. CIVILIAN EMPLOYEES ARE INCLUDED
IN BOTH GENERAL SCHEDULE AND WAGE BOARD CLASSIFICATIONS. THE WORK FORCE
IS LOCATED IN SOME 50 BUILDINGS AND HANGARS DISPERSED THROUGHOUT THE
ALAMEDA NAVAL AIR STATION AND VARIOUS LOCATIONS THROUGHOUT THE GREATER
PACIFIC AREA. THE DIRECTION OF THE FACILITY IS VESTED IN THE COMMANDING
OFFICER WHO IS ASSISTED BY THE EXECUTIVE OFFICER. BELOW THESE OFFICIALS
IS THE PRODUCTION OFFICER WHO IS RESPONSIBLE FOR THE OPERATION OF THREE
OF THE ACTIVITY'S DEPARTMENTS. /4/
THE EMPLOYEES IN THE UNIT PETITIONED FOR ARE EMPLOYED IN BOTH THE
NAVY CALIBRATION LABORATORY AND IN THE INDUSTRIAL CALIBRATION LABORATORY
WHICH ARE LOCATED IN THE PRODUCTION DEPARTMENT AND IN THE PRODUCTION
ENGINEERING DEPARTMENT, RESPECTIVELY. MOST OF THE EMPLOYEES SOUGHT WORK
IN THE NAVY CALIBRATION LABORATORY, WHICH IS A SECTION OF THE AVIONICS
DIVISION WITHIN THE PRODUCTION DEPARTMENT.
THE NAVY CALIBRATION LABORATORY SECTION IS DIVIDED INTO 7 SHOPS, /5/
EMPLOYING MORE THAN 100 NONSUPERVISORY INSTRUMENT MECHANICS, ALL BUT A
FEW OF WHOM HAVE SPECIALIZED TRAINING IN ELECTRONIC TEST EQUIPMENT.
THESE SHOPS ALSO EMPLOY APPROXIMATELY 40 OTHER EMPLOYEES, A LARGE
PROPORTION OF WHOM ARE ELECTRONIC MECHANICS, BUT ALSO INCLUDING
EMPLOYEES CLASSIFIED AS ELECTRONIC MECHANIC (A/C SYSTEMS), AND
ELECTRONIC EQUIPMENT ASSEMBLER. THE EMPLOYEES IN 5 OF THE 7 SHOPS
REWORK, CALIBRATE AND CERTIFY VARIOUS TYPES OF TEST EQUIPMENT. THE
REMAINING EMPLOYEES IN THE NAVY CALIBRATION LABORATORY WORK IN EITHER
THE SIGNAL GENERATOR SHOP /6/ OR THE SWING SHIFT SHOP WHICH SERVICES ALL
THE OTHER SHOPS. THE NATURE OF THE WORK OF THESE EMPLOYEES INVOLVES,
FOR THE MOST PART, PRECISION CALIBRATION AND TESTING OF CERTAIN SMALL
INSTRUMENTS AND EQUIPMENT. EACH SHOP IN THE CALIBRATION LABORATORY IS
UNDER THE SUPERVISION OF A FOREMAN INSTRUMENT MECHANIC WHO HAS HAD
SPECIALIZED TRAINING IN ELECTRONIC TEST EQUIPMENT, AND THE EMPLOYEES OF
THE NAVY CALIBRATION LABORATORY ARE HOUSED IN A LABORATORY LOCATED IN A
SINGLE BUILDING.
THE REMAINDER OF THE EMPLOYEES IN THE PROPOSED UNIT WORK IN THE
INDUSTRIAL CALIBRATION LABORATORY WHICH, AS NOTED ABOVE, IS PART OF THE
PRODUCTION ENGINEERING DEPARTMENT. THE EMPLOYEES IN THIS LABORATORY
INCLUDE 22 NONSUPERVISORY INSTRUMENT MECHANICS, 9 OF WHOM HAVE
SPECIALIZED TRAINING IN ELECTRONIC TEST EQUIPMENT. OF THE REMAINING 13
INSTRUMENT MECHANICS WORKING IN THIS LABORATORY, 9 HAVE SPECIALIZED
TRAINING IN ELECTRICAL OR MECHANICAL TEST EQUIPMENT AND 4 HAVE GENERAL
TRAINING IN INSTRUMENT TEST EQUIPMENT. ALL EMPLOYEES OF THIS LABORATORY
ARE SUPERVISED BY A FOREMAN INSTRUMENT MECHANIC (ELECTRICAL). FOR THE
MOST PART, THE EMPLOYEES IN THIS LABORATORY ARE LOCATED IN A BUILDING,
WHICH IS DIRECTLY ACROSS THE STREET FROM THE BUILDING WHICH HOUSES THE
NAVY CALIBRATION LABORATORY. THE OTHER INDUSTRIAL CALIBRATION
LABORATORY EMPLOYEES WORK IN A BUILDING WHICH IS SOME DISTANCE AWAY.
THE MAJORITY OF INDUSTRIAL CALIBRATION LABORATORY EMPLOYEES IN THIS
LATTER BUILDING WORK ON FIXED INSTALLATION TYPE OR IMMOBILE EQUIPMENT
LOCATED OUTSIDE THE LABORATORY IN AREAS WHERE PRODUCTION EMPLOYEES ARE
PERFORMING THEIR TASKS EITHER ADJACENT TO THEM OR IN A NEARBY AREA.
THE RECORD DISCLOSED THAT EMPLOYEES OF THE INDUSTRIAL CALIBRATION
LABORATORY WORK PRIMARILY ON THE LARGE, STATIONARY, INSTALLATION TYPE
TEST EQUIPMENT. BASICALLY, THE EMPLOYEES OF THIS LABORATORY PERFORM
TASKS IN AREAS OF PHYSICAL MEASUREMENT ON TEST EQUIPMENT AND PROVIDE
CALIBRATION SERVICE FOR INDUSTRIAL MEASURING EQUIPMENT AT THE ALAMEDA
NAVAL AIR REWORK FACILITY AS WELL AS ONSITE SERVICE TO OTHER DESIGNATED
ACTIVITIES.
AS NOTED ABOVE, BECAUSE OF THE NATURE OF THE EQUIPMENT, A SUBSTANTIAL
AMOUNT OF THE WORK PERFORMED BY THE EMPLOYEES OF THE INDUSTRIAL
CALIBRATION LABORATORY IS PERFORMED OUTSIDE THE LABORATORY AT THE
WORKSITE, RATHER THAN AT THE WORK BENCHES IN THE LABORATORY, AS IS
GENERALLY THE CASE IN THE NAVY CALIBRATION LABORATORY. THE RECORD ALSO
REVEALS THAT BOTH LABORATORIES HAVE FIELD TEAMS. HOWEVER, WHILE SUCH
TEAMS MAY BE WORKING AT THE SAME SITE THE EVIDENCE ESTABLISHES THAT THEY
WORK INDEPENDENTLY OF EACH OTHER, ON DIFFERENT JOB ASSIGNMENTS, AND
DIFFERENT EQUIPMENT AND THERE IS NO INTERCHANGE BETWEEN THE EMPLOYEES OF
THE TWO LABORATORIES. MOREOVER, WHILE EMPLOYEES OF THE NAVY CALIBRATION
LABORATORY HAVE, ON RARE OCCASIONS, BEEN TRANSFERRED TO THE INDUSTRIAL
CALIBRATION LABORATORY, THE REVERSE HAS NEVER OCCURRED. THE RECORD
REVEALS ALSO THAT THE FOREMAN WHO CONSTITUTES THE FIRST LEVEL OF
SUPERVISION IN EACH OF THE LABORATORIES SUPERVISES ONLY THE EMPLOYEES IN
THE LABORATORY TO WHICH THEY ARE ASSIGNED.
OF THE 9 CLASSIFICATIONS INVOLVED IN BOTH LABORATORIES ONLY 3
CLASSIFICATIONS ARE COMMON TO BOTH. IN ADDITION, THE DUTIES OF THE
EMPLOYEES VARY SUBSTANTIALLY ACCORDING TO THEIR RESPECTIVE
CLASSIFICATIONS AND WHILE THE RECORD INDICATES THAT PRESENTLY THERE IS A
ONE-YEAR APPRENTICESHIP PROGRAM FOR INSTRUMENT MECHANIC (ELECTRONIC),
THE ONLY CLASSIFICATION WHICH REQUIRES A FORMAL 4-YEAR APPRENTICESHIP
REQUIREMENT IS THAT OF ELECTRONIC MECHANIC, WHICH CLASSIFICATION EXISTS
ONLY IN THE NAVY CALIBRATION LABORATORY. THE RECORD REVEALS THAT
EMPLOYEES IN BOTH LABORATORIES WORKING AS INSTRUMENT MECHANICS HAVE
GENERALLY PROGRESSED TO THEIR PRESENT POSITION FROM VARIOUS RATINGS
OUTSIDE THE LABORATORIES.
THE EVIDENCE ESTABLISHES THAT A NUMBER OF THE CLASSIFICATIONS IN THE
PROPOSED UNIT, INCLUDING THAT OF ELECTRONIC MECHANIC, /7/ EXIST IN OTHER
ORGANIZATIONAL COMPONENTS WITHIN THE ACTIVITY BUT ARE NOT INCLUDED IN
THE UNIT SOUGHT. ALSO THE EMPLOYEES PETITIONED FOR, WORK THE SAME
SCHEDULE, USE THE SAME TIME CLOCKS, AND SHARE THE SAME LUNCH PERIODS,
CAFETERIAS, CANTEENS, RESTROOMS, AND PARKING LOT FACILITIES AS THE
ACTIVITY'S OTHER PRODUCTION AND MAINTENANCE EMPLOYEES. SIMILARLY THE
EMPLOYEES SOUGHT COME UNDER THE SAME HIRING POLICIES AND PRACTICES,
MERIT PROMOTION SYSTEM, PREMIUM PAY, VACATION AND SICK LEAVE SYSTEMS AS
THE OTHER PRODUCTION AND MAINTENANCE EMPLOYEES.
ALTHOUGH THE EMPLOYEES IN THE PROPOSED UNIT ARE, IN THE GENERAL
SENSE, ALL ENGAGED IN THE CALIBRATION OF MEASURING DEVICES, THEY WORK IN
TWO DIFFERENT DEPARTMENTS IN SEPARATE BUILDINGS AND PERFORM DISTINCT
SPECIALIZED FUNCTIONS WHICH VARY ACCORDING TO THE NATURE OF THE JOB
ASSIGNMENT AND THE INDIVIDUAL'S PARTICULAR SPECIALTY IN THE FIELD OF
METROLOGY. ADDITIONALLY, THE RECORD INDICATES THAT THE WORK PERFORMED
BY THE EMPLOYEES IN THE PROPOSED UNIT IS PART OF AN OVERALL INTEGRATED
PRODUCTION PROCESS.
BASED ON THE FOREGOING, AND NOTING PARTICULARLY THE FACT THAT THE
PROPOSED UNIT EXCLUDES A NUMBER OF EMPLOYEES WORKING ELSEWHERE AT THE
ACTIVITY IN THE SAME JOB CLASSIFICATIONS, AND THE INTEGRATED NATURE OF
THE ACTIVITY'S PRODUCTION AND MAINTENANCE OPERATION, I FIND THAT THE
UNIT PETITIONED FOR BY THE ASSOCIATION IS NOT APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491 SINCE THE
EMPLOYEES IN SUCH A UNIT DO NOT POSSESS A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST APART FROM PRODUCTION AND MAINTENANCE EMPLOYEES.
MOREOVER, IN MY VIEW, SUCH A UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I SHALL ORDER THAT
THE PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 70-1527 BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 23, 1971
/1/ THE CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING. NUMERICAL
CODE DESIGNATIONS OF 943.30 AND 662.40 INDICATE DEPARTMENT AND
ORGANIZATIONAL SUBDIVISIONS.
/2/ AT THE OUTSET OF THE HEARING, THE ASSOCIATION'S REPRESENTATIVE
MOVED TO HAVE THE ASSISTANT SECRETARY FIND THE ACTIVITY IN DEFAULT
BECAUSE OF ITS FAILURE TO MEET WITH THE ASSOCIATION AND RESPOND TO THE
PETITION AS PRESCRIBED BY SECTION 202.4(F) AND (G) OF THE ASSISTANT
SECRETARY'S REGULATIONS. MATTERS WHICH MAY BE THE SUBJECT OF AN UNFAIR
LABOR PRACTICE COMPLAINT MAY NOT BE APPROPRIATELY RAISED IN
REPRESENTATION CASE PROCEEDINGS. ACCORDINGLY, THE ASSOCIATION'S MOTION
IS DENIED.
/3/ SUBSEQUENT TO THE HEARING IN THIS CASE, I PERMITTED THE PARTIES
TO ENTER INTO A STIPULATION TO THE EFFECT THAT THE ACTIVITY HAD RECENTLY
FILLED 19 OF 20 VACANCIES IN THE NAVY CALIBRATION LABORATORY WITH
EMPLOYEES ALREADY ASSIGNED TO THAT LABORATORY AND 1 OF 3 VACANCIES IN
THE INDUSTRIAL CALIBRATION LABORATORY WITH AN EMPLOYEE (INSTRUMENT
MECHANIC (ELECTRICAL)) ALREADY ASSIGNED THERE. THESE VACANCIES WERE ALL
FOR THE POSITION OF INSTRUMENT MECHANIC WITH SPECIALIZATION IN
ELECTRONICS. THE STIPULATION ALSO INDICATES THAT BEFORE AND AFTER SUCH
PROMOTIONS THERE WERE 30 ELECTRONIC MECHANICS IN THE NAVY CALIBRATION
LABORATORY AND THAT THERE WERE CURRENTLY A TOTAL OF 132 ELECTRONIC
MECHANICS AT THE ACTIVITY. SUCH STIPULATED FACTS HAVE BEEN CONSIDERED
ALONG WITH THE EVIDENCE ADDUCED AT THE HEARING.
/4/ THESE ARE THE PRODUCTION DEPARTMENT, THE PRODUCTION, PLANNING AND
CONTROL DEPARTMENT AND THE PRODUCTION ENGINEERING DEPARTMENT.
/5/ THE SHOPS ARE DESIGNATED: SPECIAL SUPPORT EQUIPMENT; VOLTMETER;
MISSILE TEST EQUIPMENT; ELECTRONIC TEST EQUIPMENT; SIGNAL GENERATORS;
SEMI-AUTOMATIC CHECKOUT EQUIPMENT (SAVE); AND SWING SHOP.
/6/ THIS SHOP REWORDS, CALIBRATES AND CERTIFIES GENERATORS USED ON
SIGNAL SOURCES AND SPECIAL SUPPORT EQUIPMENT DESIGNED FOR ELECTRONIC
WARFARE SYSTEMS.
/7/ THE SECOND MOST PREVALENT CLASSIFICATION IN THE NAVY CALIBRATION
LABORATORY.
1 A/SLMR 60; P. 305; CASE NO. 35-1435(EO); JUNE 18, 1971.
VETERANS ADMINISTRATION,
VETERANS ADMINISTRATION HOSPITAL,
A/SLMR NO. 60
THIS CASE, INVOLVING A REPRESENTATION PETITION FILED BY THE WESTERN
NEW YORK PHARMACISTS' GUILD, PRESENTED THE QUESTION WHETHER A UNIT
COMPOSED SOLELY OF PHARMACISTS OF A VETERANS HOSPITAL IS AN APPROPRIATE
UNIT.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
PETITIONED FOR UNIT WAS NOT APPROPRIATE. IN REACHING THIS DECISION, THE
ASSISTANT SECRETARY CONSIDERED THE CONDITIONS OF EMPLOYMENT OF THE
PHARMACISTS IN RELATION TO OTHER PROFESSIONAL GROUPS THAT M KE UP THE
PARAMEDICAL SERVICE OF THE ACTIVITY AND FOUND THAT THE PHARMACISTS WERE
NOT A DISTINCT AND HOMOGENOUS GROUP, BUT INSTEAD, SHARED A COMMUNITY OF
INTEREST WITH OTHER PROFESSIONAL GROUPS OF THE PARAMEDICAL SERVICE. HE
ALSO FOUND THAT SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE
DEALINGS OR EFFICIENCY OF OPERATIONS.
WITH RESPECT TO THE CONTENTION THAT FOR THE SAME REASON THAT A UNIT
OF NURSES IS APPROPRIATE, A UNIT OF PHARMACISTS IS APPROPRIATE, THE
ASSISTANT SECRETARY NOTED THAT ALTHOUGH THE NURSES MAY BE CONSIDERED TO
BE A PART OF THIS PARAMEDICAL SERVICE TEAM, THEIR APPOINTMENT PROCEDURES
UNDER TITLE 38 OF THE U.S.C. CHAPTER 73 ARE DIFFERENT FROM THOSE WHICH
APPLY TO OTHER PARAMEDICAL SERVICE GROUPS AND, AS IN THE INSTANT CASE,
THEY GENERALLY HAVE DIFFERENT WORKING HOURS AND OTHER CONDITIONS OF
EMPLOYMENT.
VETERANS ADMINISTRATION,
VETERANS ADMINISTRATION HOSPITAL,
BUFFALO, NEW YORK
AND
THE WESTERN NEW YORK PHARMACISTS' GUILD
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER JOSEPH E. SIMIELE. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, THE WESTERN NEW YORK PHARMACISTS; GUILD,
HEREINAFTER REFERRED TO AS THE GUILD, SEEKS AN ELECTION IN A UNIT OF ALL
PHARMACISTS EMPLOYED AT THE VETERANS HOSPITAL, BUFFALO, NEW YORK,
EXCLUDING ALL MANAGEMENT PERSONNEL. SUPERVISORS, GUARDS AND PERSONS
PERFORMING FEDERAL PERSONNEL WORK IN OTHER THAN CLERICAL CAPACITY AND
ALL NONPROFESSIONALS. THE ACTIVITY ASSERTS THAT THE ONLY APPROPRIATE
UNIT WOULD BE ONE COMPOSED OF THE PHARMACISTS AND OTHER PROFESSIONALS IN
THE PARAMEDICAL SERVICE OF THE ACTIVITY, ALL OF WHOM SHARE A COMMUNITY
OF INTEREST. THE ACTIVITY ALSO TAKES THE POSITION THAT ANY UNIT
CONSISTING OF ONLY ONE GROUP IN THE PARAMEDICAL SERVICE WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS AS REQUIRED IN
SECTION 10(B) OF THE ORDER.
THERE IS NO PRIOR BARGAINING HISTORY WITH RESPECT TO THE ACTIVITY'S
PROFESSIONAL EMPLOYEES EXCEPT THAT EXCLUSIVE RECOGNITION WAS ACCORDED TO
THE NEW YORK NURSING ASSOCIATION IN 1969, IN A UNIT COMPOSED OF STAFF
NURSES AND INSTRUCTORS. /1/ THE SERVICE EMPLOYEES INTERNATIONAL UNION,
HEREIN CALLED SEIU, HAS REPRESENTED ALL NONPROFESSIONAL EMPLOYEES ON AN
ACTIVITY-WIDE BASIS SINCE 1964.
THE UNIT REQUESTED BY THE GUILD IS COMPOSED OF 6 PHARMACISTS WHO WORK
IN EITHER THE IN-PATIENT OR OUT-PATIENT DIVISIONS OF THE PHARMACY
SECTION, UNDER THE DIRECTION OF A SUPERVISORY PHARMACIST. /2/ A CHIEF
OF PHARMACY DIRECTS THE OPERATION OF THE PHARMACY AND HE, IN TURN, IS
RESPONSIBLE TO THE CHIEF OF STAFF OF THE ACTIVITY, AS ARE ALL OTHER
SECTION CHIEFS OF THE PARAMEDICAL SERVICE SECTION OF THE HOSPITAL.
THE OTHER CLASSIFICATIONS INCLUDED IN THE ACTIVITY'S PARAMEDICAL
SERVICE ARE: DIETICIAN, PHYSICAL THERAPIST, CORRECTIVE THERAPIST,
MANUAL ART THERAPIST, EDUCATIONAL THERAPIST, MEDICAL TECHNOLOGIST,
PODIATRIST, MEDICAL RECORDS LIBRARIAN, PSYCHOLOGIST, SOCIAL WORKER,
MICROBIOLOGIST, CHEMIST, AND CHAPLAIN. /3/ ALL OF THESE CLASSIFICATIONS
ARE UNDER THE OVERALL SUPERVISION OF THE CHIEF OF STAFF, WITH THE
EXCEPTION OF THE MEDICAL RECORDS LIBRARIAN. /4/
THE GUILD TAKES THE POSITION THAT FOR THE SAME REASON THAT A UNIT OF
NURSES IS APPROPRIATE, A UNIT OF PHARMACISTS IS APPROPRIATE. /5/ IN
THIS REGARD, IT CONTENDS THAT THE NURSE IS A PART OF THE PARAMEDICAL
SERVICE JUST AS IS THE PHARMACIST AND THE OTHER PROFESSIONALS MENTIONED
ABOVE, ALL OF WHOM ARE DEDICATED TO THE TREATMENT AND CURE OF THE
PATIENT.
THE RECORD REFLECTS THAT THE PHARMACISTS AT THE ACTIVITY ARE REQUIRED
TO HAVE A BACCALAUREATE DEGREE AND BE REGISTERED IN ONE STATE OF THE
UNITED STATES. TESTIMONY INDICATES THAT THEY HAVE REGULAR CONTACT WITH
OUT-PATIENTS AND INDIRECT CONTACT WITH IN-PATIENTS, INASMUCH AS CERTAIN
OF THEIR DUTIES REQUIRE THEM TO CONSULT WITH NURSES IN THE WARDS AS TO
THE RESUPPLYING OR STOCKING OF DRUGS STORED IN THOSE AREAS. ACCORDING
TO THE RECORD, IN PERFORMING THEIR VARIOUS DUTIES, PHARMACISTS HAVE
FREQUENT CONTACT WITH OTHER MEMBERS OF THE PARAMEDICAL SERVICE, IDENTIFY
WITH THEM AS PROFESSIONALS, AND HAVE SOCIAL CONTACTS WITH THEM AT LUNCH
AND BREAKS.
THE RECORD FURTHER REFLECTS THAT THE PHARMACISTS AND PROFESSIONALS,
OTHER THAN NURSES OF THE ACTIVITY'S PARAMEDICAL SERVICE, ARE GOVERNED BY
IDENTICAL PERSONNEL POLICIES, RULES AND REGULATIONS AND ENJOY OTHER
SIMILAR CONDITIONS OF EMPLOYMENT, SUCH AS A STANDARD FIVE-DAY, 40-HOUR
WEEK WITH NO SHIFT WORK OR OVERTIME INVOLVED. /6/
AS DISTINGUISHED FROM THE PHARMACISTS, THE RECORD REVEALS THAT NURSES
ARE APPOINTED UNDER THE SEPARATE AND UNIQUE RULES AND REGULATIONS
CONTAINED IN TITLE 38 OF THE U.S.C. CHAPTER 73. /7/ IN THIS REGARD, THE
POLICIES, RULES AND REGULATIONS OF TITLE 38 ARE NOT APPLICABLE TO OTHER
MEMBERS OF THE PARAMEDICAL SERVICE TEAM. ADDITIONALLY, IN THE INSTANT
CASE, THE EVIDENCE REVEALS THAT UNLIKE THE OTHER PROFESSIONALS IN THE
PARAMEDICAL SERVICE, NURSES REGULARLY WORK SHIFTS IN ORDER TO INSURE THE
AVAILABILITY OF ADEQUATE NURSING SERVICE 24 HOURS A DAY.
IN VIEW OF THE ABOVE, I FIND THAT THE EVIDENCE FAILS TO ESTABLISH
THAT THE PHARMACISTS ARE A DISTINCT AND HOMOGENOUS UNIT, BUT RATHER, IT
APPEARS THAT THEY SHARE A COMMUNITY OF INTEREST WITH THE OTHER
PROFESSIONAL GROUPS OF THE PARAMEDICAL SERVICE. MOREOVER, IN MY VIEW, A
UNIT LIMITED TO PHARMACISTS, WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS AS REQUIRED BY SECTION 10(B) OF THE
ORDER. THUS, A CONTRARY FINDING COULD RESULT ULTIMATELY IN A MYRIAD OF
SEPARATE UNITS AT THE ACTIVITY, EACH INVOLVING A DIFFERENT PROFESSIONAL
GROUP IN THE PARAMEDICAL SERVICE. CLEARLY, SUCH A FRAGMENTATION WOULD
NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS AS
REQUIRED UNDER THE EXECUTIVE ORDER.
THEREFORE, IN ALL THE CIRCUMSTANCES, I CONCLUDE THAT THE EMPLOYEES IN
THE REQUESTED UNIT DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES IN THE PARAMEDICAL
SERVICE AND THAT SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL DISMISS THE PETITION HEREIN.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 35-1435 (EO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 18, 1971
/1/ THE EVIDENCE REVEALS THAT A NEGOTIATED AGREEMENT COVERING THIS
UNIT IS AWAITING APPROVAL.
/2/ THERE ARE ALSO TWO PHARMACY ASSISTANTS WHO PERFORM DUTIES IN THE
PHARMACY, WHO, ACCORDING TO THE ACTIVITY ARE NONPROFESSIONAL EMPLOYEES,
AND APPARENTLY ARE COVERED BY AN SEIU AGREEMENT AND NOT INVOLVED IN
THESE PROCEEDINGS.
/3/ THERE IS NO EVIDENCE IN THE RECORD TO INDICATE THAT EITHER PARTY
CONSIDERS ANY OF THESE CLASSIFICATIONS TO BE OTHER THAN PROFESSIONAL.
MEDICAL RECORDS LIBRARIANS ARE LOCATED IN THE MEDICAL ADMINISTRATION
DIVISION AND ARE SUPERVISED BY THE ASSISTANT HOSPITAL DIRECTOR.
/5/ SEE E.G., VETERANS ADMINISTRATION, VETERANS ADMINISTRATION
HOSPITAL, LEXINGTON, KENTUCKY, A/SLMR NO. 22.
/6/ TWO OF THE PHARMACISTS WORK A REGULAR PART-TIME 20-HOUR WEEK.
/7/ NOTWITHSTANDING THE FACT THAT DOCTORS AND DENTISTS ALSO ARE
APPOINTED UNDER THIS TITLE, CLEARLY THERE IS A DISTINCT DIFFERENCE IN
RESPONSIBILITIES, AND JOB FUNCTIONS BETWEEN NURSES AND DOCTORS AND
DENTISTS, IN THAT THE LATTER TWO PROFESSIONS ARE DIRECTLY RESPONSIBLE
FOR THE DIAGNOSIS AND THE TREATMENT OF THE PATIENT, WHILE NURSES
ADMINISTER PRESCRIPTIONS AND OTHER PROFESSIONALS CARRY OUT INSTRUCTIONS
AND PRESCRIPTIONS OF THE DOCTORS AND DENTISTS.
1 A/SLMR 59; P. 303; CASE NO. 42-1279; JUNE 18, 1971.
DEPARTMENT OF THE NAVY,
NAVAL AIR REWORK FACILITY,
JACKSONVILLE, FLORIDA
A/SLMR NO. 59
THIS CASE INVOLVED A PETITION FILED BY THE NATIONAL OPERATIONS
ANALYSIS ASSOCIATION FOR A UNIT OF APPROXIMATELY 48 PRODUCTION
CONTROLLERS AND ELECTRONIC TECHNICIANS IN THE OPERATIONS ANALYSIS
DIVISION, ONE OF SEVERAL DIVISIONS OF THE ACTIVITY'S PRODUCTION
ENGINEERING DEPARTMENT.
IN DETERMINING THAT THE PROPOSED UNIT DID NOT CONSTITUTE AN
APPROPRIATE UNIT, THE ASSISTANT SECRETARY NOTED THAT THESE
CLASSIFICATIONS INVOLVED DIFFERENT FUNCTIONS AND SKILLS AND THAT THE
UNIT EXCLUDED A SUBSTANTIAL NUMBER OF EMPLOYEES IN THE SAME
CLASSIFICATIONS WORKING IN OTHER COMPONENTS OF THE ACTIVITY.
THE ASSISTANT SECRETARY ALSO NOTED THE FUNCTIONAL INTEGRATION OF THE
ACTIVITY'S WORK PROCESSES AND THE CENTRALIZED CONTROL EXERCISED OVER THE
PRODUCTION ENGINEERING DEPARTMENT AND THE TWO DEPARTMENTS INVOLVED IN
THE ACRIVITY'S PRODUCTION OPERATIONS.
BASED UPON THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED
THAT THE EMPLOYEES IN THE CLAIMED UNIT DID NOT CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491. ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED.
U.S. NAVY DEPARTMENT,
NAVAL AIR REWORK FACILITY,
JACKSONVILLE, FLORIDA
AND
NATIONAL OPERATIONS ANALYSIS
ASSOCIATION, LOCAL 311
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER B. R. WITHERS, JR. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL OPERATIONS ANALYSIS ASSOCIATION, LOCAL
311, SEEKS TO REPRESENT EMPLOYEES IN A UNIT CONSISTING OF ALL PRODUCTION
CONTROLLERS AND ELECTRONIC TECHNICIANS WORKING IN THE ACTIVITY'S
OPERATIONS ANALYSIS DIVISION, BUT EXCLUDING ALL MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES AND GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
THE ACTIVITY CONTENDS THAT THE PROPOSED UNIT IS INAPPROPRIATE IN THAT
THE QUALIFICATIONS FOR PRODUCTION CONTROLLER AND ELECTRONIC TECHNICIAN
ARE DIFFERENT AND THAT OTHER EMPLOYEES IN THESE SAME CLASSIFICATIONS ARE
FOUND ELSEWHERE WITHIN THE ACTIVITY.
THE ACTIVITY ALSO ASSERTS THAT THE PROPOSED UNIT WOULD RESULT IN
EXCESSIVE FRAGMENTATION AND CONSEQUENTLY WOULD HAVE NO ADVERSE EFFECT ON
ITS LABOR RELATIONS AND THE EFFICIENCY OF ITS OPERATIONS. /1/
THE NAVAL AIR REWORK FACILITY AT JACKSONVILLE, FLORIDA IS AN
INDUSTRIAL ACTIVITY OF THE NAVAL SHORE ESTABLISHMENT UNDER THE DIRECTION
OF THE NAVAL AIR SYSTEMS COMMAND. IT IS ENGAGED IN PROVIDING DEPOT--
LEVEL MAINTENANCE OF AIRCRAFT ENGINES AND ASSOCIATED COMPONENTS FOR THE
U.S. NAVY AIR FORCE UNDER THE DIRECTION OF A COMMANDING OFFICER. THE
FACILITY IS SUBDIVIDED INTO EIGHT MAJOR DEPARTMENTS, 31 DIVISIONS AND 77
BRANCHES, EMPLOYING MORE THAN 2,800 EMPLOYEES. THE SHOPS DEPARTMENT IN
WHICH PRODUCTION OPERATIONS ARE PERFORMED, IS MADE UP OF 14 SECTIONS AND
120 SHOP GROUPS. THE PRODUCTION PLANNING AND CONTROL DEPARTMENT
PROVIDES PRODUCTION PLANNING AND CONTROL FOR THE WORK WHICH IS PERFORMED
BY THE SHOPS DEPARTMENT WHILE THE PRODUCTION ENGINEERING DEPARTMENT
PROVIDES THE PLANNING REQUIRED TO PRODUCE ITEMS UTILIZED BY THE SHOPS
DEPARTMENT. THE LATTER THREE DEPARTMENTS, WHOSE PLANNING PROCESSES AND
WORK FLOW ARE HIGHLY INTEGRATED, ARE UNDER THE DIRECT SUPERVISION OF A
PRODUCTION OFFICER.
THE PROPOSED UNIT CONSISTS OF APPROXIMA LY 48 PRODUCTION CONTROLLERS
AND ELECTRONIC TECHNICIANS WORKING IN THE THREE BRANCHES OF THE
OPERATIONS ANALYSIS DIVISION WHICH IS PART OF THE PRODUCTION ENGINEERING
DEPARTMENT. /2/ THE RECORD REVEALS ALSO THAT ABOUT 100 EMPLOYEES
CLASSIFIED AS PRODUCTION CONTROLLERS, WHO ARE NOT INCLUDED IN THE
CLAIMED UNIT, WORK IN THE PRODUCTION PLANNING AND CONTROL DEPARTMENT AND
IN THE SHOPS DEPARTMENT. IN ADDITION, TWO ELECTRONIC TECHNICIANS, ALSO
NOT INCLUDED IN THE PROPOSED UNIT, WORK IN THE SHOPS DEPARTMENT.
THE FUNCTION OF PRODUCTION CONTROLLER IS THAT OF A PROGRAM ANALYST.
HE PERFORMS ADVANCE PLANNING FOR THE REWORK OF NEW MODELS OF AIRCRAFT
AND ASSOCIATED MATERIALS (EXCLUDING ELECTRONIC EQUIPMENT) AND OTHER
RELATED TASKS, INCLUDING THE DEVELOPMENT OF PRELIMINARY MASTER CONTROL
DOCUMENTS REQUIRED TO DIRECT THE REWORK OPERATIONS. THE PRODUCTION
CONTROLLERS WORK UNDER THE SUPERVISION OF A SECTION HEAD WHO IS ALSO A
PRODUCTION CONTROLLER. THEIR DUTIES REQUIRE A GENERAL BACKGROUND OF
MECHANICS, PRODUCTION OPERATIONS AND PRODUCTION METHODS AND PROCEDURES.
/3/ PRODUCTION CONTROLLERS ARE PROMOTED GENERALLY UPON ASSIGNMENT TO THE
OPERATIONS ANALYSIS DIVISION.
THE FUNCTION OF THE ELECTRONICS TECHNICIAN IS TO PROVIDE TECHNICAL
SUPPORT DATA AND INSTRUCTIONS FOR AUTOMATED, TAPE AND SEMI-AUTOMATICALLY
CONTROLLED CIRCUIT ANALYZING EQUIPMENT USED TO TEST MULTIPLE CIRCUIT
ELECTRIC WIRING SYSTEMS IN AIRCRAFT AND ACCESSORIES. HE IS REQUIRED TO
HAVE A KNOWLEDGE OF THE OPERATION OF CIRCUIT ANALYZING EQUIPMENT IN USE
IN THE ENTIRE NAVAL AIR REWORK FACILITY. THE QUALIFICATIONS FOR THIS
POSITION ALSO INCLUDE A KNOW EDGE AND SKILL IN THE THEORY, PRINCIPLES
AND TECHNIQUES OF ELECTRONICS APPLICATIONS, SUCH AS MAY BE GAINED IN A
FOUR-YEAR APPRENTICESHIP AND SUBSEQUENT EXPERIENCE OR EQUIVALENT
TECHNICAL SCHOOL TRAINING. THE ELECTRONIC TECHNICIANS INVOLVED HEREIN
WORK IN THE CIRCUIT ANALYSIS AND PROGRAMMING BRANCH /4/ UNDER THE
IMMEDIATE SUPERVISION OF A BRANCH SUPERVISOR WHO IS AN ELECTRONICS
TECHNICIAN.
THE RECORD DISCLOSES THAT IN PERFORMING THEIR RESPECTIVE DUTIES BOTH
THE PRODUCTION CONTROLLERS AND THE ELECTRONICS TECHNICIANS HAVE FREQUENT
CONTACTS WITH EMPLOYEES OF OTHER DIVISIONS.
ON THE BASIS OF THE ABOVE FACTS, I FIND THAT THE PROPOSED UNIT IS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491. THUS, SUCH UNIT WOULD INCLUDE LESS THAN ONE-THIRD OF THE
EMPLOYEES CLASSIFIED AS PRODUCTION CONTROLLERS WITHIN THE ACTIVITY AND
ALSO WOULD EXCLUDE AT LEAST TWO EMPLOYEES CLASSIFIED AS ELECTRONIC
TECHNICIANS WHO ARE EMPLOYED ELSEWHERE WITHIN THE ACTIVITY. IT IS NOTED
THAT THE EMPLOYEES IN THESE TWO CLASSIFICATIONS WORK IN SEPARATE
BRANCHES, ARE HOUSED IN DIFFERENT BUILDINGS, AND ARE UNDER SEPARATE
IMMEDIATE SUPERVISION.
MOREOVER, IN VIEW OF THE CENTRALIZED SUPERVISION EXERCISED BY THE
PRODUCTION OFFICER AND THE INTEGRATION OF THE PLANNING AND PRODUCTION
FUNCTIONS, I AM PERSUADED THAT THE UNIT PETITIONED FOR WHICH, IN EFFECT,
WOULD CONSTITUTE A FRAGMENTATION OF THESE FUNCTIONS, WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL DISMISS THE PETITION IN THE INSTANT CASE.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 42-1279 BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 18, 1971
/1/ CURRENTLY, THERE ARE FOUR LABOR ORGANIZATIONS WHICH HOLD
EXCLUSIVE RECOGNITION AT THE ACTIVITY.
/2/ THE EVIDENCE ESTABLISHES THAT THE AIRCRAFT AND ENGINES BRANCH AND
THE ACCESSORIES BRANCH EMPLOY 33 NONSUPERVISORY PRODUCTION CONTROLLERS
AND THAT THE CIRCUIT ANALYSIS AND PROGRAMMING BRANCH EMPLOYS 15
NON-SUPERVISORY ELECTRONIC TECHNICIANS.
/3/ RECORD TESTIMONY INDICATES THAT A JOURNEYMAN MECHANIC IN THE
SHOPS DEPARTMENT COULD QUALIFY FOR THE POSITION OF PRODUCTION
CONTROLLER. THE CLASSIFICATIONS OF "MECHANIC" IN THE LATTER DEPARTMENT
INCLUDES AIRCRAFT MECHANICS, INSTRUMENT MECHANICS AND RADIO MECHANICS.
/4/ THE EMPLOYEES OF THIS BRANCH ARE HOUSED IN TWO BUILDINGS WHICH
ARE LOCATED SEPARATELY FROM THAT OCCUPIED BY THE PRODUCTION CONTROLLERS.
1 A/SLMR 58; P. 299; CASE NOS. 60-1910(E), 60-1947(E); JUNE 16,
1971.
UNITED STATES DEPARTMENT OF AGRICULTURE,
BLACK HILLS NATIONAL FOREST
A/SLMR NO. 56
THE SUBJECT CASE INVOLVING REPRESENTATION PETITIONS FILED BY NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 927 (NFFE) AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2342 (AFGE) PRESENTED
THE QUESTIONS WHETHER AN ACTIVITY-WIDE UNIT OF ALL EMPLOYEES OF THE
BLACK HILLS NATIONAL FOREST IS APPROPRIATE OR WHETHER A SEPARATE UNIT OF
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE BOX ELDER CIVILIAN
CONSERVATION CENTER (NEMO JOB CORPS) IS APPROPRIATE.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT A
UNIT COMPOSED OF EMPLOYEES OF BOTH THE BOX ELDER CENTER AND THE OTHER 7
SUBDIVISIONS OF THE BLACK HILLS NATIONAL FOREST IS NOT APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER SECTION 10 OF THE ORDER. HE
NOTED, IN THIS RESPECT, THAT THE FORMULATION OF POLICY AND PROGRAM
DIRECTION FOR THE BOX ELDER CENTER ORIGINATES WITH THE JOB CORPS,
DEPARTMENT OF LABOR AND IS CHANNELED THROUGH THE FOREST SERVICE FOR
ADMINISTRATIVE EFFICIENCY ONLY. FOUND EQUALLY SIGNIFICANT WERE THE
DIFFERENCES IN THE MISSIONS OF THE CENTER AND THE FOREST, I.E., CONCERN
FOR HUMAN VERSUS NATURAL RESOURCES, INVOLVING DIFFERENT SKILLS,
EDUCATION AND EXPERIENCE REQUIREMENTS; LITTLE, IF ANY, INTERCHANGE OF
EMPLOYEES; AND THE GEOGRAPHIC SEPARATION OF THE CENTER FROM THE OTHER
UNITS OF THE FOREST. ACCORDINGLY THE ASSISTANT SECRETARY FOUND THAT AN
ACTIVITY-WIDE UNIT OF EMPLOYEES EXCLUDING THE BOX ELDER CIVILIAN
CONSERVATION CENTER, AS WELL AS A SEPARATE UNIT OF ALL EMPLOYEES OF THE
BOX ELDER CENTER WERE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DIRECTED THAT
SEPARATE ELECTIONS BE HELD IN THE TWO UNITS FOUND APPROPRIATE WITH
PROFESSIONAL EMPLOYEES BEING ACCORDED A SELF-DETERMINATION ELECTION IN
THE UNIT PETITIONED FOR BY THE AFGE, BEFORE BEING INCLUDED IN A UNIT
WITH NONPROFESSIONALS.
UNITED STATES DEPARTMENT OF AGRICULTURE,
BLACK HILLS NATIONAL FOREST
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 927
UNITED STATES DEPARTMENT OF AGRICULTURE,
BLACK HILLS NATIONAL FOREST,
BOX ELDER CIVILIAN CONSERVATION CENTER
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2342
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER LLOYD F. DINSMORE.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING A BRIEF FILED BY
EACH OF THE PETITIONERS, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY. /1/
2. IN CASE NO. 60-1910(E), THE NFFE SEEKS AN ELECTION IN A UNIT OF
ALL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES AT THE BLACK HILLS
NATIONAL FOREST, CUSTER, SOUTH DAKOTA, EXCLUDING MANAGERIAL OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK OTHER THAN IN A PURELY
CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, SUPERVISORS AND GUARDS AS
DEFINED BY THE ORDER. /2/
IN CASE NO. 60-1947(E), THE AFGE SEEKS AN ELECTION IN A UNIT OF ALL
GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES INCLUDING PROFESSIONAL
EMPLOYEES LOCATED AT THE BOX ELDER CIVILIAN CONSERVATION CENTER, BLACK
HILLS NATIONAL FOREST, NEMO, SOUTH DAKOTA, EXCLUDING MANAGEMENT
OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK OTHER THAN A
PURELY CLERICAL CAPACITY, SUPERVISORS AND GUARDS WITHIN THE MEANING OF
THE ORDER. /3/
THE PRIMARY MISSION OF THE FOREST SERVICE, U.S. DEPARTMENT OF
AGRICULTURE, IS TO PROMOTE THE WISE USE OF NATURAL RESOURCES AND TO
ADMINISTER POLICIES AND REGULATIONS RELATING TO NATIONAL FOREST LANDS.
IN ADDITION, THE FOREST SERVICE OPERATES JOB CORPS CENTERS, WHICH ARE
CONCERNED WITH THE DEVELOPMENT OF HOMAN RESOURCES THROUGH VARIOUS
PROGRAMS IN WORKING WITH, AND TRAINING OF YOUTH. THE BLACK HILLS
NATIONAL FOREST, CUSTER, SOUTH DAKOTA, EMPLOYS APPROXIMATELY 340
EMPLOYEES, INCLUDING FORESTERS, ENGINEERS, BUSINESS MANAGERS, TEACHERS,
TRAINING INSTRUCTORS, AND COUNSELORS. IT IS COMPOSED OF 8 SEPARATE
SUBDIVISIONS, EACH UNDER THE SUPERVISION OF A DIRECTOR WHO REPORTS TO
THE FOREST SUPERVISOR. /4/ THE BOX ELDER CIVILIAN CONSERVATION CENTER
IS ONE OF THESE SUBDIVISIONS. /5/
THE ACTIVITY CONTENDS THAT THE APPROPRIATE UNIT SHOULD BE ALL
EMPLOYEES OF THE BLACK HILLS NATIONAL FOREST, WHICH IS CONSISTENT WITH
NFFE'S PETITION. AFGE CONTENDS THAT A UNIT CONSISTING OF EMPLOYEES OF
THE NEMO JOB CORPS CENTER, I.E., BOX ELDER CIVILIAN CONSERVATION CENTER,
NEMO, SOUTH DAKOTA, IS A FUNCTIONALLY DISTINCT UNIT OF EMPLOYEES WHO
HAVE A SEPARATE COMMUNITY OF INTEREST.
THE JOB CORPS WAS ESTABLISHED ORIGINALLY UNDER THE OFFICE OF ECONOMIC
OPPORTUNITY AND CURRENTLY IS A PART OF, AND FUNDED BY, THE DEPARTMENT OF
LABOR. FOR PURPOSES OF ADMINISTRATIVE EFFICIENCY, THROUGH AGREEMENTS
WITH THE DEPARTMENT OF LABOR, JOB CORPS CENTERS ARE ASSIGNED TO VARIOUS
AGENCIES, SUCH AS THE DEPARTMENT OF AGRICULTURE. IN THIS INSTANCE, THE
JOB CORPS CENTER IS UNDER THE ADMINISTRATIVE CONTROL OF THE FOREST
SERVICE AND THUS IS SUBJECT TO THE SAME PERSONNEL POLICIES WHICH ARE IN
EFFECT FOR THE REMAINING 7 SUBDIVISIONS OF THE BLACK HILLS NATIONAL
FOREST.
THE JOB CORPS CENTER OCCUPIES APPROXIMATELY 15 ACRES OF FOREST
SERVICE LAND, SITUATED ABOUT 25 MILES NORTHWEST OF RAPID CITY, SOUTH
DAKOTA. THE NEAREST OFFICE TO THE CENTER IS THE NEMO DISTRICT WORK
CENTER OF THE FOREST SERVICE, LOCATED ABOUT 4 MILES DISTANT. THE CENTER
EMPLOYS BASIC EDUCATION TEACHERS, VOCATIONAL TRAINING INSTRUCTORS, GROUP
LEADERS, GUIDANCE COUNSELORS, FORESTERS, /6/ BUSINESS MANAGEMENT
PERSONNEL, COOKS AND SUPPLY PERSONNEL. CORPSMEN ARE TAUGHT READING AND
MATHEMATICS SKILLS, AS WELL AS VOCATIONAL AND EMPLOYMENT SKILLS. THEY
ARE TRAINED ACCORDING TO JOB CORPS TRAINING STANDARDS ESTABLISHED BY THE
DEPARTMENT OF LABOR IN VARIOUS VOCATIONS, INCLUDING HEAVY EQUIPMENT,
PRINTING, PAINTING, AUTO SERVICE REPAIR, CEMENT MASONRY, CUSTODIAL
MAINTENANCE, WELDING AND COOKING. THE TRAINING PERIOD FOR A CORPSMAN
VARIES, LASTING IN SOME INSTANCES FOR A RELATIVELY SHORT TIME, TO A
MAXIMUM OF 2 YEARS. IN ADDITION, EACH CORPSMAN RECEIVES INDIVIDUAL
TUTORING AND COUNSELING, BOTH FORMAL AND INFORMAL, ON A 24-HOUR A DAY
BASIS.
EXCEPT FOR AN OCCASIONAL FIRE AND SAFETY TRAINING SESSION, THE
TRAINING OF THE CORPSMEN IS CONDUCTED ONLY BY THE EMPLOYEES OF THE
CENTER. THERE IS NO INTERCHANGE BETWEEN FOREST SERVICE PERSONNEL, SUCH
AS FOREST RANGERS, ENGINEERS AND FIREFIGHTERS, AND INSTRUCTORS FROM THE
CENTER IN PERFORMING THEIR RESPECTIVE TASKS. OCCASIONALLY, THE CORPSMEN
ASSIST THE FOREST SERVICE IN THE CONSTRUCTION AND MAINTENANCE OF ROADS,
RECREATIONAL FACILITIES AND BUILDINGS. WHEN PERFORMING SUCH WORK, THEY
ARE ACCOMPANIED BY AN INSTRUCTOR FROM THE CENTER.
THE RECORD ALSO INDICATES THAT SEPARATE PROMOTION ROSTERS ARE
MAINTAINED FOR THE FOREST PERSONNEL AND JOB CORPS CENTER. THIS IS
ATTRIBUTED TO DIFFERENCES IN SKILLS, EDUCATION, AND EXPERIENCE
REQUIREMENTS. IN ADDITION, NOTICES OF VACANCIES AT THE CENTER ARE
DISTRIBUTED TO OTHER JOB CORPS CENTERS IN THE AREA OR IN OTHER PARTS OF
THE COUNTY.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT A UNIT COMPOSED OF EMPLOYEES
OF BOTH THE BOX ELDER CIVILIAN CONSERVATION CENTER AND THE OTHER 7
SUBDIVISIONS OF THE BLACK HILLS NATIONAL FOREST IS NOT APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER SECTION 10 OF THE ORDER.
THUS, THE RECORD ESTABLISHES THAT THE FORMULATION OF POLICY AND PROGRAM
DIRECTION FOR THE BOX ELDER CENTER ORIGINATES WITH THE JOB CORPS,
DEPARTMENT OF LABOR, AND IS CHANNELED THROUGH THE FOREST SERVICE FOR
ADMINISTRATIVE EFFICIENCY ONLY. EQUALLY SIGNIFICANT ARE THE DIFFERENCES
IN THE MISSIONS OF THE CENTER AND THE FOREST, I.E., TRAINING PROGRAM
DIRECTED TO THE ENHANCING OF HUMAN RESOURCES VERSUS THE EFFECTUATION OF
POLICIES AND REGULATIONS CONCERNED WITH THE CONSERVATION AND PROTECTION
OF NATURAL RESOURCES INVOLVING DIFFERENT SKILLS, EDUCATION AND
EXPERIENCE REQUIREMENTS, LITTLE, IF ANY, INTERCHANGE AMONG THE EMPLOYEES
AND THE GEOGRAPHIC SEPARATION OF THE CENTER FROM THE OTHER SUBDIVISIONS
IN THE FOREST.
BASED ON THE FOREGOING, I FIND THAT THE EMPLOYEES OF THE BOX ELDER
CIVILIAN CONSERVATION CENTER (NEMO JOB CORPS) SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WHICH IS SEPARATE AND DISTINCT FROM
THE REMAINING EMPLOYEES IN THE BLACK HILLS NATIONAL FOREST.
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES MAY CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF EXECUTIVE ORDER 11491:
ALL EMPLOYEES INCLUDING PROFESSIONAL EMPLOYEES OF THE BOX ELDER
CIVILIAN CONSERVATION
CENTER, BLACK HILLS NATIONAL FOREST, NEMO, SOUTH DAKOTA, EXCLUDING
MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
AS STATED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. /7/ HOWEVER, THE ASSISTANT SECRETARY IS PROHIBITED BY
SECTION 10(B)(4) OF THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A
UNIT WITH EMPLOYEES WHO ARE NOT PROFESSIONAL UNLESS A MAJORITY OF THE
PROFESSIONAL EMPLOYEES VOTE FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY,
THE DESIRES OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE BOX ELDER
CIVILIAN CONSERVATION CENTER EXCLUDING ALL NONPROFESSIONAL EMPLOYEES,
ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
VOTING GROUP (B): ALL EMPLOYEES OF THE BOX ELDER CIVILIAN
CONSERVATION CENTER EXCLUDING PROFESSIONAL EMPLOYEES, ALL EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN
THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE AFGE. /8/
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOT: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE AFGE. IN THE EVENT THAT A
MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR OF
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF
VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING GROUP (B).
IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A)
ARE CAST AGAINST INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL
EMPLOYEES, THEY WILL BE TAKEN TO HAVE INDICATED THEIR DESIRE TO
CONSTITUTE A SEPARATE UNIT, AND AN APPROPRIATE CERTIFICATION WILL BE
ISSUED INDICATING WHETHER OR NOT THE AFGE WAS SELECTED BY THE
PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL EMPLOYEES INCLUDING PROFESSIONAL EMPLOYEES OF THE BOX ELDER
CIVILIAN CONSERVATION
CENTER, EXCLUDING ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL EMPLOYEES OF THE BOX ELDER CIVILIAN CONSERVATION CENTER,
EXCLUDING ALL PROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED
IN THE ORDER.
(B) ALL PROFESSIONAL EMPLOYEES OF THE BOX ELDER CIVILIAN CONSERVATION
CENTER, EXCLUDING ALL
NON-PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER
IN ADDITION TO FINDING APPROPRIATE A UNIT OF ALL PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES OF THE BOX ELDER CIVILIAN CONSERVATION CENTER,
I ALSO FIND THAT THE ACTIVITY-WIDE UNIT PETITIONED FOR BY THE NFFE,
EXCLUDING THE BOX ELDER CIVILIAN CONSERVATION CENTER, IS APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491. I
SHALL, THEREFORE, DIRECT A SEPARATE ELECTION IN THE FOLLOWING UNIT:
ALL EMPLOYEES OF THE BLACK HILLS NATIONAL FOREST, EXCLUDING EMPLOYEES
OF THE BOX ELDER
CIVILIAN CONSERVATION CENTER, PROFESSIONAL EMPLOYEES, EMPLOYEES
ENGAGED IN PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN
THE UNITS FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN 45
DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNITS WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE, SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE TO VOTE IN CASE NO. 60-1947(E)
SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2342. THOSE ELIGIBLE TO VOTE IN CASE NO.
60-1910(E) SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 927. /9/
DATED, WASHINGTON, D.C.
JUNE 16, 1971
/1/ DURING THE HEARING THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2342, HEREIN CALLED AFGE, FILED A MOTION TO
DISMISS THE PETITION FILED BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 927, HEREIN CALLED NFFE, BASED ON THE LATTER'S FAILURE
TO PRESENT ANY EVIDENCE AT THE HEARING. THE HEARING OFFICER REFERRED
THE MOTION TO THE ASSISTANT SECRETARY. SINCE NO PARTY IS REQUIRED TO
MEET A BURDEN OF PROOF IN A REPRESENTATION PROCEEDING INVOLVING A UNIT
DETERMINATION QUESTION, THE MOTION TO DISMISS IS HEREBY DENIED.
/2/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/3/ THE LOCATION OF THE UNIT APPEARS AS AMENDED AT THE HEARING.
/4/ THE RECORD DOES NOT REFLECT ANY OTHER LINE(S) OF SUPERVISION.
/5/ THE RECORD IS UNCLEAR AS TO THE IDENTITY, COMPOSITION AND
LOCATION OF THE OTHER 7 SUBDIVISIONS.
/6/ IN ADMINISTRATIVE POSITIONS ONLY.
/7/ SINCE THE RECORD DOES NOT SET FORTH SUFFICIENT FACTS AS TO WHO
ARE PROFESSIONAL EMPLOYEES, I MAKE NO FINDINGS WITH RESPECT TO THIS
CATEGORY OF EMPLOYEES.
/8/ AS THE NFFE'S SHOWING OF INTEREST IS INSUFFICIENT TO TREAT IT AS
AN INTERVENOR IN CASE NO. 60-1947(E), I SHALL ORDER THAT ITS NAME NOT BE
PLACED ON THE BALLOT.
/9/ AFGE TOOK THE POSITION ON THE RECORD THAT IT DESIRED TO APPEAR ON
THE BALLOT IN THE UNIT SOUGHT BY THE NFFE ONLY IN THE EVENT THAT THE
ASSISTANT SECRETARY FOUND THE BOX ELDER UNIT TO BE INAPPROPRIATE.
1 A/SLMR 57; P. 294; CASE NOS. 70-1499(RO), 72-1482(RO), JUNE 15,
1971.
INTERNAL REVENUE SERVICE,
OFFICE OF THE REGIONAL COMMISSIONERS,
WESTERN REGION
A/SLMR NO. 57
THIS CASE INVOLVED REPRESENTATION PETITIONS FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2202 (AFGE) AND THE
NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES. CHAPTER 81 (NAIRE).
THE AFGE SOUGHT A UNIT OF PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF
THE INTERNAL REVENUE SERVICE, OFFICE OF THE REGIONAL COMMISSIONER,
WESTERN REGION APPELLATE BRANCH OFFICE LOCATED IN LOS ANGELES,
CALIFORNIA. THE NAIRE SOUGHT A UNIT OF ALL PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES LOCATED THROUGHOUT THE WESTERN REGION, WHICH
ENCOMPASSED THE UNIT SOUGHT BY THE AFGE.
THE ASSISTANT SECRETARY FOUND THAT A UNIT COMPOSED SOLELY OF THE
APPELLATE BRANCH EMPLOYEES LOCATED IN THE LOS ANGELES OFFICE, AS
PROPOSED BY THE AFGE, DID NOT ENCOMPASS A GROUP OF EMPLOYEES WITH A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST. IN THIS REGARD THE
ASSISTANT SECRETARY NOTED THAT THOSE EMPLOYEES WERE PART OF A BROADER
CENTRALIZED ADMINISTRATION AND SUPERVISORY STRUCTURE AND HAD THE SAME
GENERAL WORKING CONDITIONS, JOB FUNCTIONS AND SKILL REQUIREMENTS AS ALL
OTHER APPELLATE EMPLOYEES WORKING IN THE 5 OTHER BRANCH OFFICES IN THE
WESTERN REGION. THE ASSISTANT SECRETARY FURTHER NOTED THAT THERE WAS
EVIDENCE OF JOB CONTACTS BETWEEN LOS ANGELES APPELLATE BRANCH EMPLOYEES
AND THOSE STATIONED IN THE OTHER 5 CITIES HAVING BRANCH OFFICES BY WAY
OF PERMANENT TRANSFER, TEMPORARY DETAIL AND COMMUNICATION AND
COORDINATION ON CASE HANDLING. IN THESE CIRCUMSTANCES, THE ASSISTANT
SECRETARY CONCLUDED THAT THE UNIT SOUGHT BY THE AFGE LIMITED TO
EMPLOYEES IN THE LOS ANGELES APPELLATE BRANCH OFFICE WAS NOT APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND, ACCORDINGLY, HE DIRECTED
THAT ITS PETITION BE DISMISSED.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE REGION-WIDE UNIT SOUGHT
BY THE NAIRE WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
IN REACHING THIS CONCLUSION HE NOTED PARTICULARLY THE CENTRALIZED
ADMINISTRATION AND SUPERVISION OF THE WESTERN REGION, THE UNIFORM
PRACTICES AND POLICIES WITH RESPECT TO PERSONNEL MATTERS, THE
COMMONALITY OF JOB FUNCTIONS BETWEEN EMPLOYEES IN THE VARIOUS FUNCTIONAL
BRANCHES MAKING UP THE WESTERN REGION AND THE EVIDENCE OF EMPLOYEE
INTERRELATIONSHIP BY WAY OF PERMANENT TRANSFER, TEMPORARY DETAIL OF
PERSONNEL AND CASE HANDLING COORDINATION AND COMMUNICATION. IN THESE
CIRCUMSTANCES, AND BECAUSE, IN HIS VIEW, SUCH A COMPREHENSIVE UNIT WOULD
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, THE
ASSISTANT SECRETARY DIRECTED THAT AN ELECTION BE CONDUCTED IN THE UNIT
PETITIONED FOR BY THE NAIRE WITH PROFESSIONAL EMPLOYEES BEING ACCORDED A
SELF-DETERMINATION ELECTION BEFORE BEING INCLUDED IN A UNIT WITH
NONPROFESSIONALS.
INTERNAL REVENUE SERVICE,
OFFICE OF THE REGIONAL COMMISSIONER,
WESTERN REGION /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2202 /2/
INTERNAL REVENUE SERVICE,
OFFICE OF THE REGIONAL COMMISSIONER,
WESTERN REGION
AND
NATIONAL ASSOCIATION OF INTERNAL
REVENUE EMPLOYEES, CHAPTER 81 /3/
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER HENRY C. LEE. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING THE BRIEFS FILED
HEREIN, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 70-1499 (RO), PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2202, HEREIN CALLED AFGE, SEEKS AN
ELECTION IN A UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL
NONSUPERVISORY EMPLOYEES OF THE INTERNAL REVENUE SERVICE'S LOS ANGELES
REGIONAL APPELLATE BRANCH OFFICE. /4/ IN CASE NO. 72-1482 (RO), THE
NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, CHAPTER 81, HEREIN
CALLED NAIRE, SEEKS AN ELECTION IN A UNIT OF ALL PROFESSIONAL AND
NONPROFESSIONAL NONSUPERVISORY EMPLOYEES OF THE OFFICE OF THE REGIONAL
COMMISSIONER, WESTERN REGION, INTERNAL REVENUE SERVICE. /5/ THE
ACTIVITY CONTENDS THAT THE UNIT SOUGHT BY NAIRE IS APPROPRIATE. ON THE
OTHER HAND, IT ASSERTS THAT THE EMPLOYEES SOUGHT BY THE AFGE DO NOT
POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND THAT SUCH A
UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
THE WESTERN REGION OF THE INTERNAL REVENUE SERVICE CONSISTS OF A
HEADQUARTERS, WHICH IS LOCATED IN SAN FRANCISCO, CALIFORNIA, AND
APPROXIMATELY 30 "POSTS OF DUTY" LOCATED THROUGHOUT THE STATES OF
ALASKA, ARIZONA, CALIFORNIA, HAWAII, IDAHO, MONTANA, OREGON, UTAH AND
WASHINGTON. THIS ACTIVITY IS UNDER THE REGIONAL COMMISSIONER, WESTERN
REGION, WHO IS ASSISTED BY SEVERAL ASSISTANT REGIONAL COMMISSIONERS FOR
SEPARATE FUNCTIONS. THE EMPLOYEE COMPLEMENT OF THE ACTIVITY CONSISTS OF
APPROXIMATELY 469 EMPLOYEES, 265 OF WHOM ARE CLASSIFIED AS
"PROFESSIONALS" BY THE ACTIVITY. /6/
GENERAL RESPONSIBILITY FOR THE ADMINISTRATION OF THE ENTIRE REGION
RESTS WITH THE REGIONAL COMMISSIONER AND HIS ASSISTANTS. AT THE
HEADQUARTERS THERE ARE SEVEN "FUNCTIONAL" DIVISIONS: COLLECTION;
INTELLIGENCE; AUDIT; DATA PROCESSING; APPELLATE; ALCOHOL, TOBACCO,
AND FIREARMS; AND ADMINISTRATIVE, EACH DIRECTED BY AN ASSISTANT
REGIONAL COMMISSIONER. THE COLLECTION, INTELLIGENCE, AND AUDIT
DIVISIONS PROVIDE FUNCTIONAL SUPERVISION TO THEIR COUNTERPARTS IN THE
VARIOUS DISTRICT INTERNAL REVENUE SERVICE OFFICES AND THE DATA
PROCESSING DIVISION PROVIDES FUNCTIONAL GUIDANCE TO THE REGION'S SERVICE
CENTER. /7/ THE ADMINISTRATIVE DIVISION PROVIDES BOTH OPERATIONAL
SERVICES TO THE LOCAL OFFICES IN THE OFFICE OF THE REGIONAL COMMISSIONER
AND FUNCTIONAL SUPERVISION OVER ITS COUNTERPART DIVISIONS IN THE FIELD
OFFICES THROUGHOUT THE REGION. THE APPELLATE DIVISION'S FUNCTION IS TO
HOLD HEARINGS ON PROTESTED NON-DOCKETED EXCISE CASES, INCOME AND
DOCKETED INCOME GIFT CASES FOR THE PURPOSE OF ATTEMPTING TO DISPOSE OF
THESE MATTERS BY MUTUAL AGREEMENT WITH THE TAXPAYER.
PERSONNEL SERVICES ARE PERFORMED IN THE OFFICE OF THE REGIONAL
COMMISSIONER, BY THE CHIEF OF THE REGIONAL OFFICE SECTION OF THE
PERSONNEL BRANCH. PERSONNEL PRACTICES AND PROCEDURES APPLY EQUALLY TO
ALL EMPLOYEES IN THE REGION. ALL PERSONNEL RECORDS, WITH THE EXCEPTION
OF THOSE OF A FEW CENTRALIZED POSITIONS OF TOP EXECUTIVES, ARE KEPT IN
SAN FRANCISCO. THE RECORD DISCLOSED THAT MANAGEMENT STAFF MEETINGS
RELATING TO FISCAL AND MANPOWER NEEDS IN THE VARIOUS BRANCHES ARE HELD
AT THE REGIONAL LEVEL TWICE A YEAR, AND ARE ATTENDED BY THE ASSISTANT
CHIEFS OR CHIEF OF THE BRANCH OFFICES. DUTIES AND RESPONSIBILITIES OF
EMPLOYEES AT THE SAME GRADE LEVEL AND OCCUPATION ARE SIMILAR THROUGHOUT
THE ACTIVITY. ALSO, THE QUALIFICATIONS, REQUIREMENTS AND METHOD OF WORK
ASSIGNMENT FOR EMPLOYEES IN THE SAME GRADE OF CLASSIFICATION ARE THE
SAME THROUGHOUT THE ACTIVITY. THE RECORD FURTHER REVEALS THAT THE
EVALUATION OF EMPLOYEE WORK PERFORMANCE IS THE SAME THROUGHOUT THE
REGION.
THE RECORD SHOWS THAT DAY-TO-DAY DEALINGS WITH LABOR ORGANIZATIONS
ARE THE RESPONSIBILITY OF THE CHIEF, LABOR RELATIONS SECTION AND CHIEF,
REGIONAL OFFICE SECTION OF THE PERSONNEL BRANCH. IN THIS REGARD, THE
FINAL DETERMINATION WITH RESPECT TO GRIEVANCES AT THE REGIONAL LEVEL IS
MADE BY THE REGIONAL COMMISSIONER AND THE RECORD REFLECTS THAT THE
LOWEST RANKING ACTIVITY OFFICIAL WITH AUTHORITY TO APPROVE NEGOTIATED
AGREEMENTS IS THE REGIONAL COMMISSIONER.
THE APPELLATE DIVISION IS DIVIDED INTO SIX BRANCH OFFICES, LOCATED IN
LOS ANGELES, SAN FRANCISCO, SEATTLE, PORTLAND, SALT LAKE CITY AND
PHOENIX AND ALL ARE UNDER THE DIRECT CONTROL OF THE APPELLATE REGIONAL
COMMISSIONER'S OFFICE. THE EMPLOYEE COMPLEMENT OF THE DIVISION IS
APPROXIMATELY 200, 122 OF WHOM ARE CLASSIFIED AS "PROFESSIONAL" BY THE
ACTIVITY. THE APPELLATE REGIONAL COMMISSIONER HAS THE AUTHORITY TO HIRE
AND FIRE, PROMOTE AND DEMOTE, AND TRANSFER AND REASSIGN APPELLATE
DIVISION EMPLOYEES. LIKEWISE, HE HAS AUTHORITY FOR ALL PERSONNEL
ACTIONS, PLACEMENT ACTIONS, ADVERSE PERSONNEL ACTIONS, AND APPROVAL OF
OUTSTANDING AND SUPERIOR PERFORMANCE AWARDS INITIATED IN BRANCH OFFICES.
ALTHOUGH THE BRANCH CHIEF HAS THE OVERALL RESPONSIBILITY FOR MANAGING
HIS RESPECTIVE BRANCH OFFICE, HIS AUTHORITY TO TAKE PERSONNEL ACTIONS IS
LIMITED TO "ORAL MANAGEMENT," I.E., APPROVAL OF TRAVEL REQUESTS,
OVERTIME AND AUTHORITY TO MAKE SHIFTS IN WORKING HOURS FOR EMPLOYEES
ATTENDING SCHOOL. HOWEVER, HE IS REQUIRED TO ADVISE THE APPELLATE
REGIONAL COMMISSIONER WITH RESPECT TO HIS MANPOWER, SPACE, SUPPLY AND
EQUIPMENT NEEDS, FOR A DETERMINATION OF ALLOCATION.
THE RECORD DISCLOSED THAT HIRING ANNOUNCEMENTS FOR THE APPELLATE
DIVISION ARE POSTED REGION-WIDE AND ARE ALSO POSTED IN INTERNAL REVENUE
SERVICE DISTRICT OFFICES. THUS, EMPLOYEES IN OTHER CLASSIFICATIONS
THROUGHOUT THE REGION MAY COMPETE FOR JOBS IN THE APPELLATE DIVISION.
IN THIS REGARD, THE RECORD REVEALS THAT EMPLOYEES HAVE BEEN REASSIGNED
OR TRANSFERRED BOTH BETWEEN THE APPELLATE BRANCHES AND BETWEEN
"FUNCTIONAL" DIVISIONS ON A PERMANENT BASIS. FURTHERMORE, EMPLOYEES ARE
FREQUENTLY "DETAILED" ON A TEMPORARY BASIS BETWEEN THE VARIOUS APPELLATE
BRANCH OFFICES.
ALTHOUGH THE BRANCH OFFICES OF THE APPELLATE DIVISION ARE SEPARATED
GEOGRAPHICALLY, THE RECORD SHOWS THAT EMPLOYEES IN THE SAME JOB
CLASSIFICATIONS HAVE THE SAME QUALIFICATIONS, PERFORM SIMILAR WORK AND
HAVE SOME JOB CONTACTS. THUS, THE QUALIFICATIONS FOR APPELLATE
CONFEREES ARE THE SAME THROUGHOUT THE REGION. /8/ THEY MUST DEVELOP
SIMILAR SKILLS, ATTEND THE SAME TRAINING COURSES AND APPLY THE SAME
TECHNICAL PRACTICES, PROCEDURES AND RULES WITH RESPECT TO THEIR WORK
PERFORMANCE AS DO OTHER CONFEREES THROUGHOUT THE REGION. WITH RESPECT
TO THE RELATIONSHIP BETWEEN THE VARIOUS BRANCH OFFICES, THE RECORD
REVEALED THAT CONFEREES MAY COMMUNICATE WITH CONFEREE FROM ANOTHER
BRANCH OFFICE WHEN A CASE HAS BEEN TRANSFERRED FROM ONE OFFICE TO
ANOTHER, WHEN TWO OR MORE OFFICES HAVE RELATED CASES, OR CONCERNING
CASES WITH EITHER UNIQUE ISSUES OR WHICH HAVE BROAD GEOGRAPHIC OR POLICY
APPLICATION. SIMILARLY, RECORDS CLERKS FROM THE DIFFERENT APPELLATE
BRANCH OFFICES COMMUNICATE WITH EACH OTHER BY TELEPHONE IN THE
PERFORMANCE OF THEIR CLERICAL DUTIES WITH RESPECT TO THE HANDLING OF
CASE FILES.
THE EVIDENCE ESTABLISHES FURTHER THAT, IN ADDITION TO APPELLATE
CONFEREES, OTHER CLASSIFICATIONS OF EMPLOYEES IN THE APPELLATE BRANCH
OFFICES ARE REQUIRED TO HAVE SIMILAR QUALIFICATIONS, PERFORM SIMILAR
WORK, AND HAVE SOME DEGREE OF CONTACT WITH EACH OTHER IN THE PERFORMANCE
OF THEIR WORK. THUS, APPELLATE AUDITORS ASSIST APPELLATE CONFEREES BY
PREPARING AUDIT STATEMENTS, MAKING TAX COMPUTATIONS, AND PERFORMING
VARIOUS ACCOUNTING ANALYSIS FUNCTIONS AND APPELLATE AIDES, RECORD CLERKS
OR SECRETARIES ALL PERFORM IDENTICAL TASKS REGARDLESS OF WHICH OF THE 6
BRANCH OFFICES THAT THEY ARE ASSIGNED TO.
WITH RESPECT TO THE LOS ANGELES BRANCH OFFICE, WHICH IS SOUGHT AS A
SEPARATE UNIT BY THE AFGE, THE EVIDENCE REVEALS THAT IT CONTAINS
APPROXIMATELY 74 EMPLOYEES, 48 OF WHOM ARE CLASSIFIED BY THE ACTIVITY AS
"PROFESSIONALS." THE GENERAL WORKING CONDITIONS IN THE LOS ANGELES
OFFICE ARE THE SAME AS IN ALL OTHER APPELLATE BRANCH OFFICES AND THE
EVIDENCE ESTABLISHES THAT THERE ARE NO UNIQUE PERSONNEL POLICIES,
PRACTICES, OR PROCEDURES WHICH RELATE SOLELY TO THE LOS ANGELES
APPELLATE BRANCH OFFICE. WHILE THE RECORD REFLECTS THAT AS A RESULT OF
THE SIZE AND COMPOSITION OF THE LOS ANGELES AREA, PERSONS WORKING IN
THAT OFFICE MAY PROCESS A LARGER NUMBER OF CERTAIN TYPES OF TAX CASES
AND CASES WHICH ARE GENERALLY OF A GREATER DEGREE OF COMPLEXITY THAN
THOSE OF SOME OF THE OTHER BRANCH OFFICES, THE EVIDENCE ESTABLISHED THAT
THE OTHER BRANCH OFFICES PROCESS THE SAME TYPES OF CASES ALTHOUGH ON A
LESS FREQUENT BASIS.
THE DUTIES AND RESPONSIBILITIES OF EMPLOYEES AT THE SAME GRADE LEVEL
IN LOS ANGELES AND THROUGHOUT THE ACTIVITY'S APPELLATE DIVISION, ARE
SIMILAR. THUS, LOS ANGELES EMPLOYEES DEVELOP SIMILAR SKILLS, ATTEND THE
SAME SPECIALIZED TRAINING COURSES, ARE CONTROLLED BY THE SAME PERSONNEL
PRACTICES AND PROCEDURES, ARE SUBJECT TO INTERCHANGE, AND APPLY THE SAME
TECHNICAL PRACTICES, PROCEDURES AND RULES WITH RESPECT TO THEIR WORK
PERFORMANCE AS DO OTHER EMPLOYEES THROUGHOUT THE REGION. AS TO THE
AFGE'S CONTENTION THAT PROBLEMS WITH RESPECT TO MILEAGE REIMBURSEMENT
AND DETAILS OF CONFEREES AROSE AT THE LOS ANGELES BRANCH OFFICE, THE
RECORD REVEALS THAT THESE ISSUES APPARENTLY INVOLVED MATTERS WHICH
AFFECTED APPELLATE CONFEREES THROUGHOUT THE REGION.
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE AFGE
COVERING ALL APPELLATE BRANCH EMPLOYEES HAVING AN OFFICIAL POST OF DUTY
IN LOS ANGELES, CALIFORNIA IS NOT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. AS NOTED ABOVE, THE RECORD REVEALS THAT THE
ACTIVITY HAS A CENTRALIZED ADMINISTRATIVE AND SUPERVISORY STRUCTURE FOR
ALL OF THE REGION'S EMPLOYEES; THAT APPELLATE EMPLOYEES LOCATED IN THE
HEADQUARTERS OFFICE, OTHER APPELLATE EMPLOYEES IN THE BRANCH OFFICES
WITHIN THE REGION AND OTHER CLASSIFICATIONS OF REGION EMPLOYEES HAVE
MANY COMMON SKILL REQUIREMENTS AND PERFORM SIMILAR FUNCTIONS; THAT
EMPLOYEES THROUGHOUT THE REGION HAVE SOME JOB CONTACTS; AND THAT
PROMOTIONAL OPPORTUNITIES ARE AVAILABLE ON A REGION OR DISTRICT-WIDE
BASIS. WITH RESPECT TO THE CONTENTION THAT THE LOS ANGELES BRANCH
OFFICE CONSTITUTES AN APPROPRIATE UNIT BECAUSE OF ITS SIZE AND
GEOGRAPHICAL SEPARATION FROM HEADQUARTERS AND OTHER BRANCH OFFICES,
WHILE THE RECORD REVEALED THAT THE LOS ANGELES OFFICE IS THE LARGEST
BRANCH OFFICE IN THE REGION, THERE WAS NO EVIDENCE OF "UNIQUE" PERSONNEL
PRACTICES OR WORKING CONDITIONS APPLYING SOLELY TO THE LOS ANGELES
BRANCH. NOR IS THERE ANY RECORD EVIDENCE SHOWING THAT THE GEOGRAPHICAL
LOCATION OF THE LOS ANGELES OFFICE WOULD IMPAIR EFFECTIVE DEALINGS ON A
REGION-WIDE BASIS. IN THESE CIRCUMSTANCES AND CONSIDERING THE FACT THAT
THE LOS ANGELES APPELLATE BRANCH EMPLOYEES WILL HAVE AN OPPORTUNITY TO
VOTE IN A MORE COMPREHENSIVE UNIT, I FIND THAT THE UNIT SOUGHT BY THE
AFGE IS NOT APPROPRIATE.
I ALSO FIND, BASED ON THE FOREGOING, THAT A REGION-WIDE UNIT OF
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, AS PROPOSED BY THE NAIRE, IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. THE RECORD
REVEALS THAT ALL CLASSIFICATIONS OF EMPLOYEES WITHIN THE REGION ARE
COVERED BY THE SAME PERSONNEL PRACTICES AND POLICIES AND THAT THERE IS
NO VARIATION IN THE QUALIFICATIONS FOR EMPLOYMENT OR THE WORK TO BE
PERFORMED IN THE RESPECTIVE JOB CLASSIFICATIONS THROUGHOUT THE REGION.
IN ADDITION, PROMOTIONAL OPPORTUNITIES ARE MADE AVAILABLE ON A REGION OR
DISTRICT-WIDE BASIS AND THERE IS A SUBSTANTIAL INTERRELATIONSHIP BETWEEN
EMPLOYEES IN MANY OF THE JOB CLASSIFICATIONS WITHIN THE REGION.
FURTHER, THE RECORD DISCLOSED THAT EMPLOYEES ARE FREQUENTLY DETAILED
TEMPORARILY BETWEEN THE BRANCH OFFICES TO HANDLE IMBALANCES OF CASE
LOADS AND ARE FREQUENTLY TRANSFERRED PERMANENTLY BETWEEN DIVISIONS AND,
LESS FREQUENTLY, BETWEEN BRANCHES. IN THESE CIRCUMSTANCES, I FIND THAT
THERE IS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE
EMPLOYEES PETITIONED FOR BY THE NAIRE. MOREOVER, SUCH A COMPREHENSIVE
UNIT WILL, IN MY VIEW AND IN ACCORDANCE WITH THE ACTIVITY'S POSITION,
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
I FIND THAT THE FOLLOWING EMPLOYEES OF THE ACTIVITY MAY CONSTITUTE A
UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
EXECUTIVE ORDER 11491:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE INTERNAL
REVENUE SERVICE, OFFICE OF
THE REGIONAL COMMISSIONER, WESTERN REGION, EXCLUDING ALL EMPLOYEES
ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE ORDER. /9/
AS STATED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. HOWEVER, THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10
(B)(4) OF THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH
EMPLOYEES WHO ARE NOT PROFESSIONAL UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTE FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES
OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE
SERVICE, OFFICE OF THE REGIONAL COMMISSIONER, WESTERN REGION EXCLUDING
ALL NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL EMPLOYEES OF THE INTERNAL REVENUE SERVICE,
OFFICE OF THE REGIONAL COMMISSIONER, WESTERN REGION, EXCLUDING
PROFESSIONAL EMPLOYEES, ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE NAIRE. /10/
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE NAIRE. IN THE EVENT THAT A
MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR OF
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF
VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING GROUP (B).
IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A)
ARE CAST AGAINST INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL
EMPLOYEES, THEY WILL BE TAKEN TO HAVE INDICATED THEIR DESIRE TO
CONSTITUTE A SEPARATE UNIT, AND AN APPROPRIATE CERTIFICATION WILL BE
ISSUED INDICATING WHETHER, OR NOT THE NAIRE WAS SELECTED BY THE
PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE INTERNAL
REVENUE SERVICE, OFFICE OF
THE REGIONAL COMMISSIONER, WESTERN REGION, EXCLUDING ALL EMPLOYEES
ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL EMPLOYEES OF THE INTERNAL REVENUE SERVICE OFFICE OF THE
REGIONAL COMMISSIONER,
WESTERN REGION EXCLUDING ALL PROFESSIONAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS,
AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
(B) ALL PROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE SERVICE,
OFFICE OF THE REGIONAL
COMMISSIONER, WESTERN REGION EXCLUDING ALL NONPROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IS OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 70-1499 (RO)
BE, AND IT HEREBY IS, DISMISSED.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE, SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY
DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, CHAPTER 81.
DATED, WASHINGTON, D.C.
JUNE 15, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THIS PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ THE NAME OF THIS PETITIONER APPEARS AS AMENDED AT THE HEARING.
/4/ THE AFGE'S CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/5/ THE NAIRE'S CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/6/ APPARENTLY, THE AFGE AND THE NAIRE AGREED TO ADOPT THE ACTIVITY'S
CLASSIFICATION OF EMPLOYEES AS TO THEIR PROFESSIONAL AND NONPROFESSIONAL
STATUS. AS THE RECORD DOES NOT SET FORTH SUFFICIENT FACTS WITH RESPECT
TO SUCH CRITERIA AS DUTIES, TRAINING, EDUCATIONAL BACKGROUND, ETC. TO
PROVIDE AS BASIS FOR FINDINGS OF FACT THAT PERSONS IN PARTICULAR
CLASSIFICATION ARE PROFESSIONAL, I WILL MAKE NO FINDINGS AS TO WHICH
EMPLOYEE CLASSIFICATIONS CONSTITUTE PROFESSIONAL EMPLOYEES.
/7/ NEITHER THE DISTRICT OFFICES NOR THE REGION'S SERVICE CENTER ARE
INVOLVED IN THIS PROCEEDING.
/8/ APPELLATE CONFEREES, REGARDLESS OF WHICH BRANCH OFFICE THEY ARE
ASSIGNED TO, ARE RESPONSIBLE FOR HOLDING HEARINGS, MAKING PRELIMINARY
EXAMINATIONS OF RECORDS, RESEARCHING ISSUES, NEGOTIATING SETTLEMENTS IN
DISPUTED CASES, AND PREPARING REPORTS RECOMMENDING A COURSE OF ACTION IN
A PARTICULAR CASE.
/9/ IN ITS PETITION THE NAIRE EXCLUDED "ALL EMPLOYEES OF THE
INTELLIGENCE DIVISION," AND "ALL EMPLOYEES OF THE /E/NFORCEMENT BRANCH
OF THE ALCOHOL, TOBACCO AND FIREARMS DIVISION." BECAUSE THE RECORD DOES
NOT SET FORTH SUFFICIENT FACTS AS TO THESE EMPLOYEES, I SHALL MAKE NO
FINDINGS AS TO WHETHER EMPLOYEES IN THESE JOB CLASSIFICATIONS SHOULD BE
EXCLUDED FROM THE UNIT.
/10/ AS THE AFGE'S SHOWING OF INTEREST IS INSUFFICIENT TO TREAT IT AS
AN INTERVENOR IN CASE NO. 72-1482 (RO), I SHALL ORDER THAT ITS NAME NOT
BE PLACED ON THE BALLOT.
1 A/SLMR 56; P. 288; CASE NO. 52-2103; JUNE 15, 1971.
ARMY MATERIEL COMMAND,
ARMY TANK AUTOMOTIVE COMMAND,
A/SLMR NO. 56
THIS CASE AROSE AS A RESULT OF THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R8-21 FILING OBJECTIONS ALLEGING THAT CERTAIN CONDUCT
BY THE ACTIVITY, THE REPRESENTATIVES OF THE DEPARTMENT OF LABOR AND THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1658,
AFFECTED THE RESULTS OF THE ELECTION HELD AT THE ARMY MATERIEL COMMAND,
ARMY TANK AUTOMOTIVE COMMAND, WARREN, MICHIGAN.
A HEARING WAS HELD BEFORE A HEARING EXAMINER INVOLVING (1) OBJECTIONS
TO THE CONDUCT OF THE ELECTION BECAUSE OF ALLEGED IRREGULARITIES
COMMITTED BY THE ACTIVITY AND REPRESENTATIVES OF THE DEPARTMENT OF
LABOR, AND (2) OBJECTIONS CONCERNING CAMPAIGN LITERATURE PREPARED AND
DISTRIBUTED BY THE AFGE CONTAINING MISREPRESENTATIONS WHICH ALLEGEDLY
AFFECTED THE RESULTS OF THE ELECTION.
UPON A REVIEW OF THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS
AND THE ENTIRE RECORD, INCLUDING THE AFGE'S REQUEST FOR REVIEW OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS, THE ASSISTANT SECRETARY
FOUND, IN AGREEMENT WITH THE HEARING EXAMINER, THAT THE AFGE'S LEAFLET
CONTAINING THE FALSE REPRESENTATION THAT THE NAGE PURCHASED A LEAR JET
FOR $1,250,000 WAS THE TYPE OF LEAFLET THAT COULD BE RECOGNIZED BY
EMPLOYEES AS CAMPAIGN PROPAGANDA AND, PROPERLY EVALUATED, COULD NOT
REASONABLY BE EXPECTED TO AFFECT THE RESULTS OF THE ELECTION.
THE ASSISTANT SECRETARY FOUND ALSO IN AGREEMENT WITH THE HEARING
EXAMINER THAT THE AFGE'S ERRONEOUS AND DECEPTIVE CHARACTERIZATION OF A
NAGE LOCAL PRESIDENT AS A NAGE NATIONAL VICE PRESIDENT REQUESTING
SUPPORT OF THE AFGE CONSTITUTED CAMPAIGN TRICKERY INVOLVING A
SUBSTANTIAL MISREPRESENTATION OF FACT WHICH IMPAIRED SHE EMPLOYEES'
ABILITY TO VOTE INTELLIGENTLY ON THE ISSUE. HE FOUND ALSO THAT BY
DISTRIBUTING THE LEAFLET ON THE DAY BEFORE THE ELECTION THE NAGE WAS
PREVENTED FROM MAKING AN EFFECTIVE REPLY THERETO.
WITH RESPECT TO THE REMAINING ALLEGATIONS, THE ASSISTANT SECRETARY
FOUND, IN AGREEMENT WITH THE HEARING EXAMINER, THAT THEY WERE WITHOUT
MERIT.
BASED ON THE FOREGOING, THE ASSISTANT SECRETARY SET ASIDE THE
ELECTION OF JULY 22, 1970 AND DIRECTED THAT A SECOND ELECTION BE
CONDUCTED.
ARMY MATERIEL COMMAND,
ARMY TANK AUTOMOTIVE COMMAND,
WARREN, MICHIGAN
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1658
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R8-21
ON FEBRUARY 26, 1971, HEARING EXAMINER DAVID LONDON ISSUED HIS REPORT
AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1658, HEREIN
CALLED AFGE, HAD ENGAGED IN A MISREPRESENTATION WITH REGARD TO A LEAFLET
WHICH CONTAINED THE STATEMENT THAT "NAGE NATIONAL VICE-PRESIDENT URGES
SUPPORT OF AFGE." THE HEARING EXAMINER CONCLUDED THAT THE VOTER'S
ABILITY TO EVALUATE THE CHOICES ON THE BALLOT WAS SO IMPAIRED BY THE
COMPLAINED OF LEAFLET THAT THEY WERE UNABLE TO VOTE INTELLIGENTLY, AND
ACCORDINGLY, HE RECOMMENDED THAT THE ELECTION HELD ON JULY 22, 1970, BE
SET ASIDE AND A NEW ELECTION BE DIRECTED UNDER THE TERMS OF EXECUTIVE
ORDER 11491.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. /1/ UPON CONSIDERATION OF
THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE ENTIRE RECORD
INCLUDING THE AFGE'S REQUEST FOR REVIEW OF THE HEARING EXAMINER'S REPORT
AND RECOMMENDATIONS AND THE PARTIES' BRIEFS, I ADOPT THE FINDINGS AND
RECOMMENDATIONS OF THE HEARING EXAMINER.
THE NAGE FILED NUMEROUS OBJECTIONS TO THE ELECTION IN THIS CASE WHICH
CAN BE SEPARATED INTO TWO CATEGORIES (1) OBJECTIONS TO THE CONDUCT OF
THE ELECTION BECAUSE OF ALLEGED IRREGULARITIES COMMITTED BY THE ACTIVITY
AND REPRESENTATIVES OF THE DEPARTMENT OF LABOR, AND (2) OBJECTIONS
CONCERNING CAMPAIGN LITERATURE PREPARED AND DISTRIBUTED BY THE AFGE
CONTAINING MISREPRESENTATIONS WHICH ALLEGEDLY AFFECTED THE RESULTS OF
THE ELECTION.
THE ALLEGED IRREGULARITIES ATTRIBUTED TO THE ACTIVITY AND
REPRESENTATIVES OF THE DEPARTMENT OF LABOR INCLUDE IMPROPER MAILING OF
BALLOTS, DUAL VOTING, IMPROPER MANAGEMENT OBSERVERS, UNATTENDED POLLING
PLACES, INELIGIBLE VOTERS, INCOMPLETE ELIGIBILITY LISTS, IMPROPER
DISTRIBUTION OF ELIGIBILITY CARDS, AND LOSS OF A VOTING LIST FROM ONE OF
THE POLLING PLACES.
THE HEARING EXAMINER NOTED THAT THE NAGE'S POST-HEARING BRIEF
CONTAINED NO CONTENTIONS OR MENTION CONCERNING ANY OF THESE OBJECTIONS
AND RESTRICTED ITS CONTENTIONS TO THE TWO PIECES OF LITERATURE
CIRCULATED ON BEHALF OF THE AFGE AS CONTRIBUTING A BASIS FOR SETTING
ASIDE THE ELECTION.
IN THESE CIRCUMSTANCES, THE HEARING EXAMINER CONCLUDED THAT THE NAGE
HAD APPARENTLY ABANDONED OR WITHDRAWN ITS OBJECTIONS IN CATEGORY 1 NOTED
ABOVE. NEVERTHELESS, THE HEARING EXAMINER CONSIDERED THE ENTIRE RECORD
TO DETERMINE WHETHER THESE PROCEDURAL OBJECTIONS HAD MERIT AND BE
CONCLUDED THAT THE NAGE HAD FAILED TO ESTABLISH THAT THERE WAS MERIT TO
ANY OF THESE OBJECTIONS. HE THEREFORE RECOMMENDED THAT THEY BE
OVERRULED. THE NAGE DID NOT REQUEST REVIEW OF THE HEARING EXAMINER'S
REPORT AND RECOMMENDATION IN THIS RESPECT. IN ALL THE CIRCUMSTANCES AND
UPON REVIEW OF THE RECORD, I AGREE WITH THE HEARING EXAMINER'S
RECOMMENDATION OVERRULING THESE OBJECTIONS.
THE FIRST CAMPAIGN FLYER PREPARED AND DISTRIBUTED BY THE AFGE, IN
ADDITION TO CONTAINING PROPAGANDA DERISIVE OF THE BENEFITS RECEIVED BY
THE NAGE MEMBERSHIP FOR DUES PAID TO THE NAGE NATIONAL HEADQUARTERS,
INCLUDES A DRAWING OF AN AIRPLANE WITH THE ACCOMPANYING LEGEND IN BROAD
TYPE, "NAGE RAIDS TREASURY. NAGE PRESIDENT JUNKETS HIGH TO THE SKY-- IN
NEWLY BOUGHT $1,250,000 LEAR JET-- LOCAL UNIONS DEMAND "MONEY" AND
"REPRESENTATION."
THE RECORD REVEALS THAT THIS LEAFLET WAS DISTRIBUTED TO EMPLOYEES AT
THE INSTALLATION ON THE MORNING OF JULY 17, 1970, FIVE DAYS PRIOR TO THE
ELECTION. THE RECORD REVEALS ALSO THAT THE NAGE HAD NEVER OWNED A LEAR
JET AND NEVER PURCHASED A LEAR JET FOR $1,250,000.
THE HEARING EXAMINER FOUND THAT WHILE THE REPRESENTATION THAT NAGE
OWNED AND OPERATED AN EXPENSIVE JET FOR ITS TOP OFFICIALS WAS
UNDOUBTEDLY CIRCULATED TO PREJUDICE THE VOTERS AGAINST NAGE, THE NATE
WAS PARTIALLY TO BLAME FOR CAUSING THIS MISREPRESENTATION. /2/
MOREOVER, THE HEARING EXAMINER CONCLUDED THAT THE NAGE HAD SUFFICIENT
TIME IN WHICH TO MAKE AN EFFECTIVE REPLY BUT FAILED TO DO SO.
ACCORDINGLY, HE RECOMMENDED THAT THE NAGE OBJECTION BASED ON THE
DISTRIBUTION OF THIS CIRCULAR BE OVERRULED.
IN ALL THE CIRCUMSTANCES, I FIND THAT, TAKEN IN ITS ENTIRE CONTEXT,
THE ABOVE-DESCRIBED LEAFLET DISTRIBUTED BY THE AFGE COULD BE RECOGNIZED
BY EMPLOYEES AS CAMPAIGN PROPAGANDA, AND, PROPERLY EVALUATED, COULD NOT
REASONABLY BE EXPECTED TO HAVE A SIGNIFICANT IMPACT ON THE ELECTION.
ACCORDINGLY, THE OBJECTION BASED UPON THIS LEAFLET IS HEREBY
OVERRULED.
THE SECOND LEAFLET COMPLAINED OF, DISTRIBUTED THE DAY BEFORE THE
ELECTION, CONTAINED THE STATEMENT, IN BOLD TYPE, "NAGE NATIONAL VICE
PRESIDENT URGES SUPPORT OF AFGE," AND ATTRIBUTED THIS STATEMENT TO ANDRE
LA CROIX "NATIONAL VICE PRESIDENT, REGION 7, AND PRESIDENT, NAGE LOCAL
R7-35." THE REVERSE SIDE OF THE LEAFLET WAS A VERBATIM COPY OF A LETTER
FROM ANDRE E. LA CROIX. AT THE TOP OF THE REVERSE SIDE OF THE LEAFLET
WAS THE FOLLOWING STATEMENT: "(THE FOLLOWING LETTER WAS MAILED SUNDAY,
JULY 19, 1970, TO THE MORE THAN 400 MEMBERS OF NAGE ROCK ISLAND ARSENAL,
LOCAL R7-35 BY ITS PRESIDENT, ANDRE LA CROIX WHO IS NATIONAL VICE
PRESIDENT FOR NAGE REGION SEVEN)." THE BODY OF THE LETTER BEGAN AS
FOLLOWS:
"DEAR NAGE MEMBERS: THE UNDERSIGNED OFFICERS OF THE HEADQUARTERS
USAWECOM LOCAL OF NAGE AT AN EXECUTIVE BOARD MEETING HAVE VOTED TO
SUPPORT THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES IN THE AUGUST 4
ELECTION TO SELECT THE BARGAINING AGENT FOR GS EMPLOYEES OF THIS
HEADQUARTERS" . . . THE LETTER WAS SIGNED BY A. E. LA CROIX, PRESIDENT,
AND THREE OTHER OFFICERS OF THE LOCAL.
THE RECORD REVEALS THE LEAFLET WAS DISTRIBUTED AT THE INSTALLATION ON
JULY 21, 1970, THE DAY BEFORE THE ELECTION. THE RECORD ALSO REVEALS
THAT WHILE LA CROIX IS IN FACT THE PRESIDENT OF NAGE LOCAL R7-35 IN ROCK
ISLAND, ILLINOIS, HE NEVER WAS AND IS NOT NOW A NATIONAL VICE PRESIDENT
OF THE NAGE. MOREOVER, NAGE DOES NOT HAVE NOW, OR HAS IT EVER HAD, A
NATIONAL VICE PRESIDENT FOR NAGE REGION SEVEN.
THE HEARING EXAMINER CONCLUDED WITH RESPECT TO THE ABOVE
MISREPRESENTATION THAT THE VOTERS' ABILITY TO EVALUATE THE CHOICES WAS
SO IMPAIRED BY THIS "CAMPAIGN TRICKERY" THAT THEY WERE UNABLE TO VOTE
INTELLIGENTLY. HE ALSO FOUND THAT BY DISTRIBUTING THE LEAFLET ON THE
DAY BEFORE THE ELECTION THE NAGE WAS PREVENTED FROM MAKING AN EFFECTIVE
REPLY THERETO.
THE AFGE, IN ITS REQUEST FOR REVIEW OF THE HEARING EXAMINER'S REPORT
AND RECOMMENDATIONS, REITERATES ITS CONTENTION THAT THE ABOVE-MENTIONED
LEAFLET WAS SELF-SERVING CAMPAIGN LITERATURE AND WAS THE TYPE THAT A
VOTER WOULD EXPECT TO SEE IN AN ELECTION CAMPAIGN. IT ALSO ARGUES THAT
EVEN IF THE LEAFLET CONTAINED A MATERIAL MISREPRESENTATION, THE NAGE
COULD HAVE PREPARED, PUBLISHED AND DISTRIBUTED AN EFFECTIVE REPLY IF IT
SO DESIRED. FINALLY, THE AFGE ARGUES THAT THE HEARING EXAMINER'S
FINDINGS AND RECOMMENDATIONS ON THIS OBJECTION WERE BASED ON "SUBJECTIVE
EVIDENCE."
IN MY VIEW, THE ISSUE HEREIN IS NOT WHETHER LA CROIX WROTE THE LETTER
SUPPORTING THE AFGE OR WHETHER HE WAS PRESIDENT OF THE NAGE LOCAL R7-35.
RATHER, IT IS THE ERRONEOUS AND DECEPTIVE CHARACTERIZATION OF LA CROIX
AS A NATIONAL VICE PRESIDENT OF THE NAGE. I AGREE WITH THE HEARING
EXAMINER'S CONCLUSION THAT IT IS DIFFICULT TO PERCEIVE A FALSE
REPRESENTATION MORE LIKELY TO CREATE DOUBT, FRUSTRATION AND DISSENTION
CONCERNING THE INTEGRITY OF THE NAGE'S LEADERSHIP THAN A PLEA BY ITS OWN
NATIONAL VICE PRESIDENT TO DISAVOW ITS LEADERSHIP AND, INSTEAD, SUPPORT
THE AFGE. IT IS CLEAR THAT THE EMPLOYEES HERE HAD NO INDEPENDENT
KNOWLEDGE AS TO PERSONS HOLDING NATIONAL OFFICE IN THE NAGE AND
CONSEQUENTLY, WERE UNABLE TO RECOGNIZE THE LEAFLET AS A
MISREPRESENTATION OF FACT. IN THESE CIRCUMSTANCES, I FIND THAT THE
DECEPTION CONSTITUTED CAMPAIGN TRICKERY INVOLVING A SUBSTANTIAL
MISREPRESENTATION OF FACT WHICH IMPAIRED THE EMPLOYEES' ABILITY TO VOTE
INTELLIGENTLY ON THE ISSUE. I FIND ALSO THAT BY DISTRIBUTING THE
LEAFLET ON THE DAY BEFORE THE ELECTION THE NAGE WAS PREVENTED FROM
MAKING AN EFFECTIVE REPLY THERETO.
ACCORDINGLY, THE ELECTION CONDUCTED ON JULY 22, 1970 IS HEREBY SET
ASIDE AND A SECOND ELECTION WILL BE CONDUCTED AS DIRECTED BELOW.
IT IS HEREBY DIRECTED THAT A SECOND ELECTION BE CONDUCTED AS EARLY AS
POSSIBLE, BUT NOT LATER THAN 45 DAYS FROM THE DATE BELOW, IN THE UNIT
SET FORTH IN THE ELECTION AGREEMENT DATED JUNE 23, 1970. THE
APPROPRIATE AREA ADMINISTRATOR SHALL SUPERVISE THE ELECTION, SUBJECT TO
THE ASSISTANT SECRETARY'S REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN
THE UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY
PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT WORK DURING
THE PERIOD BECAUSE THEY WERE ILL, ON VACATION OR ON FURLOUGH INCLUDING
THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS.
INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE
SINCE THE DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR
REINSTATED BEFORE THE ELECTION DATE.
DATED, WASHINGTON, D.C.
JUNE 15, 1971
/1/ THE HEARING EXAMINER PROPERLY REFUSED TO HEAR TESTIMONY WITH
RESPECT TO AN ALLEGATION BY THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R8-21, HEREIN CALLED NAGE, THAT SUPERVISORY EMPLOYEES
TOLD EMPLOYEES AT THE ACTIVITY THAT IF THEY VOTED FOR A UNION IT WOULD
MEAN A CLOSED SHOP, INASMUCH AS SUCH ALLEGATION WAS NOT INCLUDED AS PART
OF THE NAGE'S TIMELY FILED OBJECTIONS TO THE ELECTION.
/2/ THE HEARING EXAMINER NOTED THAT THE NAGE'S NEWSLETTER "THE
FEDNEWS" ON MARCH 31, 1970, CARRIED A PICTURE SHOWING NAGE OFFICIALS
STANDING IN FRONT OF A PLANE. THE CAPTION BENEATH THE PICTURE READS
"NAGE OFFICIALS DEPLANE FROM THEIR LEAR JET 808." A SIMILAR PICTURE
APPEARED IN THE "FEDNEWS" OF JUNE 10, 1970 WITH THE CAPTION READING
"SHIPYARD LOCAL OFFICIALS GREET NAGE NATIONAL OFFICERS AS THEY ENPLANE
FROM THE ASSOCIATION'S LEAR JET 808."
ARMY MATERIEL COMMAND, ARMY TANK
AUTOMOTIVE COMMAND, WARREN, MICHIGAN
AND
LOCAL 1658, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL0CIO
AND
LOCAL R8-21, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
MR. JOHN SIMON, ASSISTANT PERSONNEL
OFFICER FOR THE ACTIVITY.
JAMES L. NEUSTADT, ESQ., WASHINGTON, D.C.,
FOR THE PETITIONER.
ROGER F. KAPLAN, ESQ., WASHINGTON, D.C.,
FOR THE INTERVENOR.
BEFORE: DAVID LONDON, HEARING EXAMINER.
THIS PROCEEDING HAD ITS GENESIS IN A PETITION FILED APRIL 29, 1970 BY
LOCAL 1658, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
(HEREINAFTER REFERRED TO AS AFGE), SEEKING CERTIFICATION AS EXCLUSIVE
REPRESENTATIVE OF ALL NON-SUPERVISORY AND NON-PROFESSIONAL EMPLOYEES
ENGAGED AT ARMY MATERIEL COMMAND, ARMY TANK AUTOMOTIVE COMMAND, WARREN,
MICHIGAN (HEREINAFTER REFERRED TO AS THE ACTIVITY). THEREAFTER, LOCAL
R8-21, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (HEREINAFTER
REFERRED TO AS NAGE), TIMELY SOUGHT AND WAS GRANTED INTERVENTION IN THE
PROCEEDING. ON JUNE 23, 1970, THE TWO LABOR ORGANIZATIONS ENTERED INTO
AN "AGREEMENT FOR CONSENT OR DIRECTED ELECTION" WHICH AGREEMENT WAS
APPROVED BY THE AREA ADMINISTRATOR, LABOR MANAGEMENT SERVICES
ADMINISTRATION.
THE ELECTION CONTEMPLATED BY THAT AGREEMENT WAS HELD ON JULY 22,
1970. THE DULY CERTIFIED REVISED TALLY OF BALLOTS ISSUED ON JULY 24
DISCLOSED THAT 947 VOTES HAD BEEN CAST FOR AFCE, 931 VOTES FOR NAGE, AND
998 VOTES AGAINST EXCLUSIVE RECOGNITION BY EITHER UNION.
ON OR ABOUT JULY 27, 1970, NAGE FILED ITS OBJECTIONS WITH THE AREA
ADMINISTRATOR ABOVE MENTIONED CHARGING "MANY IRREGULARITIES OF THE
ACTIVITY AND REPRESENTATIVES OF THE LABOR DEPARTMENT AS WELL AS
MISREPRESENTATIONS IN THE LITERATURE CIRCULATED BY AFGE" WHICH CONDUCT
WAS ALLEGED TO HAVE AFFECTED THE RESULTS OF THE ELECTION. NAGE
REQUESTED THAT THE ELECTION BE SET ASIDE AND A NEW ELECTION BE
CONDUCTED. ON AUGUST 31, 1970, THE DEPARTMENT REGIONAL ADMINISTRATOR
FOUND THAT THE OBJECTIONS RAISED RELEVANT QUESTIONS OF FACT THAT COULD
BEST BE RESOLVED ON THE BASIS OF RECORD TESTIMONY. ACCORDINGLY, HE
ORDERED THAT A HEARING ON SAID OBJECTIONS BE CONDUCTED BEFORE A HEARING
EXAMINER PURSUANT TO SECTION 202.20 OF THE REGULATIONS OF THE ASSISTANT
SECRETARY.
THAT HEARING WAS HELD BEFORE THE UNDERSIGNED DULY DESIGNATED HEARING
EXAMINER AT WARREN, MICHIGAN, ON NOVEMBER 19-20, 1970. AT THAT HEARING,
NAGE AND AFGE WERE REPRESENTED BY COUNSEL; THE ACTIVITY WAS REPRESENTED
BY ITS ASSISTANT PERSONNEL OFFICER. FULL OPPORTUNITY WAS GIVEN TO
ADDUCE EVIDENCE, SUBMIT ORAL ARGUMENT AND TO FILE BRIEFS. ON OR ABOUT
JANUARY 9, 1971, A MEMORANDUM WAS SUBMITTED ON BEHALF OF THE ACTIVITY.
ON JANUARY 22, 1971, BRIEFS IN BEHALF OF NAGE AND AFGE WERE RECEIVED BY
ME.
UPON THE ENTIRE RECORD IN THE PROCEEDING, MY OBSERVATION OF THE
WITNESSES AS THEY TESTIFIED, AND AFTER DUE CONSIDERATION OF THE BRIEFS
AFOREMENTIONED, I MAKE THE FOLLOWING:
MOST OF THE APPROXIMATELY 15 OBJECTIONS FILED BY NAGE COMPLAIN OF THE
MANNER IN WHICH THE ACTIVITY AND REPRESENTATIVES OF AFGE CONDUCTED THE
ELECTION-- ALLEGED IMPROPER MAILING OF BALLOTS, DUAL VOTING, IMPROPER
MANAGEMENT OBSERVERS, UNATTENDED POLLING PLACES, INELIGIBLE VOTERS,
INCOMPLETE ELIGIBILITY LISTS, ETC. NAGE'S EXHAUSTIVE 24 PAGE
POST-HEARING BRIEF, HOWEVER, CONTAINS NO CONTENTION OR MENTION
CONCERNING ANY OF THESE OBJECTIONS. INSTEAD, IT IS RESTRICTED TO THE
CONTENTION THAT THE ELECTION SHOULD BE SET ASIDE BECAUSE AFGE, PRIOR TO
THE ELECTION, CIRCULATED TWO FLYERS WHICH ALLEGEDLY "CONTAINED
MISREPRESENTATIONS THAT WERE A SUBSTANTIAL DEPARTURE FROM THE TRUTH--
WERE FALSE AND UNEQUIVOCALLY MISLED THE VOTERS IN THE ELECTION." IN THAT
POSTURE OF THE CASE, I CAN ONLY CONCLUDE THAT NAGE HAS ABANDONED OR
WITHDRAWN ITS OBJECTION CHARGING THAT THE ACTIVITY AND AFGE WERE GUILTY
OF WRONGFUL ACTION IN THE CONDUCT OF THE ELECTION. NOTWITHSTANDING THE
FOREGOING CIRCUMSTANCE, I HAVE, NEVERTHELESS, CONSIDERED THE ENTIRE
RECORD TO DETERMINE WHETHER THERE IS ANY MERIT TO ANY OF THESE
PROCEDURAL OBJECTIONS IN THE CONDUCT OF THE ELECTION. THAT REVIEW HAS
CONFIRMED A CONCLUSION I ENTERTAINED AT THE CLOSE OF THE HEARING THAT
NAGE HAS FAILED TO ESTABLISH THAT THERE IS ANY MERIT TO ANY OF THESE
OBJECTIONS. IT IS THEREFORE, RECOMMENDED THAT THEY BE OVERRULED AND
DISMISSED.
THE ONLY OBJECTIONS PRESENTLY RELIED UPON BY NAGE DEAL WITH TWO
CIRCULARS OR FLYERS ADMITTEDLY PREPARED AND CIRCULATED BY A
REPRESENTATIVE OF AFGE AMONG THE EMPLOYEES OF THE ACTIVITY AND WHICH, IT
IS CHARGED, WERE FALSE, MISLEADING, AND AFFECTED THE RESULTS OF THE
ELECTION. THE FIRST CIRCULAR COMPLAINED OF, NAGE EX. 3, WAS DISTRIBUTED
3-4 DAYS BEFORE THE ELECTION. IN ADDITION TO THE USUAL PROPAGANDA
DERISIVE OF THE BENEFITS WHICH DUES PAID TO NAGE NATIONAL HEADQUARTERS
IN BOSTON "TRICKLE DOWN" TO THE MEMBERSHIP IN ITS LOCALE, THE CIRCULAR
HAS A DRAWING OF AN AIRPLANE AND CARRIED THE ACCOMPANYING LEGEND, IN
TYPE ALMOST AN INCH HIGH: "NAGE RAIDS TREASURY. NAGE PRESIDENT JUNKETS
HIGH IN THE SKY-- IN NEWLY BOUGHT $1,250,000 'LEAR JET'-- LOCAL UNIONS
DEMAND 'MONEY' AND 'REPRESENTATION.'" NAGE CONTENDS THAT THE
REPRESENTATION THAT IT OWNS A LEAR JET IS TOTALLY FALSE AND WAS MADE
ONLY TO IMPROPERLY INFLUENCE VOTERS AT THE ACTIVITY.
THE SECOND FLYER COMPLAINED OF, NAGE EX. 2, WAS DISTRIBUTED THE DAY
BEFORE THE ELECTION. IN ADDITION TO THE USUAL PROPAGANDA MATERIAL, THE
CIRCULAR CONTAINED THE STATEMENT, IN BOLD TYPE APPROXIMATELY ONE-HALF
INCH HIGH, THAT "NAGE NATIONAL VICE-PRESIDENT URGES SUPPORT OF AFGE" AND
ATTRIBUTED THE STATEMENT TO ANDRE E. LACROIX, NATIONAL VICE PRESIDENT,
REGION 7, AND PRESIDENT, NAGE LOCAL R7-35. THE TESTIMONY ESTABLISHES,
HOWEVER, THAT LACROIX NEVER WAS A VICE PRESIDENT OF NAGE, AND THAT THE
NATIONAL ORGANIZATION NEVER HAD ANY REGIONAL ICE PRESIDENT FOR ITS
REGION 7.
IN DETERMINING WHETHER AN ELECTION SHOULD BE SET ASIDE BECAUSE, IN
ITS CAMPAIGN PROPAGANDA, ONE OF THE PARTIES HAS MISREPRESENTED FACTS, A
BALANCE MUST BE STRUCK BETWEEN THE RIGHT OF EMPLOYEES TO A FREE AND
INFORMED CHOICE OF BARGAINING REPRESENTATIVE AND THE RIGHTS OF THE
PARTIES TO WAGE A FREE AND VIGOROUS CAMPAIGN WITH ALL THE NORMAL TOOLS
OF LEGITIMATE ELECTIONEERING. AS NEITHER EXECUTIVE ORDER 11491, NOR THE
REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS,
UNDER WHICH THE INSTANT ELECTION WAS CONDUCTED, CONTAIN THE STANDARDS
WHICH MUST BE MAINTAINED TO INSURE THE FREE AND UNTRAMMELLED ELECTION
CONTEMPLATED BY THAT ORDER AND REGULATIONS, SEARCH MUST BE MADE
ELSEWHERE FOR APPLICABLE STANDARDS BY WHICH TO APPRAISE AND MEASURE THE
CONDUCT OF THE PARTIES.
IN THEIR POST-HEARING BRIEFS, AFGE AND NAGE ARE IN AGREEMENT THAT THE
STANDARDS ESTABLISHED BY THE NATIONAL LABOR RELATIONS BOARD IN THE
PRIVATE SECTOR OF LABOR-MANAGEMENT RELATIONS ARE APPROPRIATE GUIDES BY
WHICH THEIR ELECTION CONDUCT MAY BE MEASURED HEREIN. THOUGH THE
DECISIONS OF THAT BOARD ARE NOT CONTROLLING HEREIN, ITS EXPERTISE IN THE
FILED UNDER CONSIDERATION HAS BEEN REPEATEDLY RECOGNIZED BY THE SUPREME
COURT, AND THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS HAS
RECOGNIZED THAT IT IS APPROPRIATE TO "TAKE INTO ACCOUNT THE EXPERIENCE
GAINED FROM THE PRIVATE SECTOR UNDER THE LABOR MANAGEMENT RELATIONS ACT,
AS AMENDED-- ." CHARLESTON NAVAL SHIPYARD, A/SLMR, NO. 1, NOVEMBER 3,
1970.
NOTWITHSTANDING THE SHARP DIFFERENCES IN THE ULTIMATE CONCLUSIONS
REACHED BY NAGE AND AFGE IN THEIR POST-HEARING BRIEFS, THEY ARE IN
COMPLETE AGREEMENT WITH ME THAT THE STANDARDS BY WHICH THEIR CONDUCT
MUST BE APPRAISED AND MEASURED HAVE BEEN SUMMARIZED IN HOLLYWOOD
CERAMICS CO. INC., 140 NLRB 221, /1/ AS FOLLOWS: "(A)N ELECTION SHOULD
BE SET ASIDE ONLY WHERE THERE HAS BEEN A MISREPRESENTATION OR OTHER
SIMILAR CAMPAIGN TRICKERY, WHICH INVOLVES A SUBSTANTIAL DEPARTURE FROM
THE TRUTH, AT A TIME WHICH PREVENTS THE OTHER PARTY OR PARTIES FROM
MAKING AN EFFECTIVE REPLY, SO THAT THE MISREPRESENTATION, WHETHER
DELIBERATE OR NOT, MAY REASONABLY BE EXPECTED TO HAVE A SIGNIFICANT
IMPACT ON THE ELECTION."
TURNING TO AN APPLICATION OF THESE STANDARDS TO THE FLYER CONCERNING
THE LEAR JET, THE EVIDENCE ESTABLISHES THAT NAGE DOES NOT, AND NEVER
DID, OWN A LEAR JET. WHILE THE REPRESENTATION THAT NAGE OWNED AND
OPERATED THE EXPENSIVE JET FOR ITS TOP OFFICIALS WAS UNDOUBTEDLY
CIRCULATED IN ORDER TO PREJUDICE VOTERS AGAINST NAGE, THAT ORGANIZATION
IS NOT ALTOGETHER FREE FROM BLAME FOR CAUSING THAT MISREPRESENTATION.
NAGE'S NEWSPAPER, "THE FEDNEWS," ON MARCH 31, 1970 (AFGE EX. 2),
CARRIED A PICTURE SHOWING NAGE OFFICIALS STANDING IN FRONT OF A PLANE.
THE CAPTION BENEATH THE PICTURE READS: "NATE OFFICIALS DEPLANE FROM
THEIR LEAR JET 808." A SIMILAR PICTURE APPEARED IN "THE FEDNEWS" OF JUNE
10, 1970 (AFGE EX. 3), WITH THE CAPTION THERE READING "SHIPYARD LOCAL
OFFICIALS GREET NAGE NATIONAL OFFICERS AS THEY ENPLANE FROM THE
ASSOCIATION'S LEAR JET."
MORE IMPORTANT, HOWEVER, IS THE FACT THAT THE CIRCULAR COMPLAINED OF
WAS DISTRIBUTED 4 DAYS BEFORE THE ELECTION, ALLOWING SUFFICIENT TIME FOR
NAGE TO MAKE AN EFFECTIVE REPLY THERETO. NO CREDIBLE, PROBATIVE REASON
HAVING BEEN OFFERED FOR ITS FAILURE TO DO SO, NAGE CANNOT NOW DEMAND
THAT THE ELECTION BE SET ASIDE BECAUSE OF THE AFOREMENTIONED
MISREPRESENTATION. ACCORDINGLY, IT IS RECOMMENDED THAT THE OBJECTION
BASED ON THE DISTRIBUTION OF THIS CIRCULAR BE OVERRULED AND DISMISSED.
A DIFFERENT RESULT MUST BE REACHED WITH RESPECT TO THE FLYER
CIRCULATED THE DAY BEFORE THE ELECTION WHICH FRAUDULENTLY INFORMED THE
EMPLOYEES THAT A NATIONAL VICE-PRESIDENT OF NAGE WAS URGING MEMBERS OF
THAT ORGANIZATION TO VOTE FOR AFGE. WITH RESPECT TO THE IMPACT THIS
CIRCULAR HAD ON PROSPECTIVE VOTERS, YVONNE SHAUGHNESSY TESTIFIED THAT ON
THE DAY OF THE ELECTION, "MANY" OF THE APPROXIMATELY 300 PEOPLE EMPLOYED
IN THE BUILDING IN WHICH SHE WAS ENGAGED CAME TO HER "QUESTIONING THE
VERACITY" OF THIS CIRCULAR. THEY TOLD HER "THEY DIDN'T KNOW WHAT TO
BELIEVE; ALL THEY COULD GO BY IS WHAT THEY SAW; IF NAGE WAS GOING TO
SUPPORT AFGE, WHAT KIND OF UNION WERE WE RUNNING;-- THEY WERE CONFUSED,
THEY DIDN'T KNOW WHAT TO DO."
AVNE VANHUSEN, EMPLOYED IN A BUILDING HOUSING APPROXIMATELY 1,000
EMPLOYEES, TESTIFIED THAT ON THE DAY OF THE ELECTION, A NUMBER OF
EMPLOYEES MADE REMARKS TO HIM ABOUT THIS CIRCULAR WHICH, HE TESTIFIED,
"WEREN'T EXACTLY FAVORABLE."
DONALD PURGATORI, EMPLOYED AT THE ACTIVITY FOR MORE THAN 23 YEARS,
FIRST SAW THE CIRCULAR UNDER CONSIDERATION THE MORNING BEFORE THE
ELECTION. THOUGH NOT A MEMBER OF EITHER AFGE OR NAGE, HE TESTIFIED THAT
PRIOR TO SEEING THE CIRCULAR, HE "WASN'T TOO SURE-- WHO (HE) WAS GOING
TO VOTE FOR IN THE ELECTION,-- (HE) KIND OF LEANED TOWARD NAGE." WHEN HE
SAW THE CIRCULAR, HOWEVER, "THINGS GOT PRETTY CONFUSED TO (HIM), SO (HE)
VOTED FOR NO UNION."
THOUGH LABOR ORGANIZATIONS HAVE GREAT LATITUDE IN THE INTENSITY AND
SCOPE OF THE PROPAGANDA BY WHICH THEY SEEK TO INFLUENCE VOTERS IN THEIR
CHOICE BETWEEN COMPETING UNIONS, THE USE OF FRAUD OR TRICKERY CANNOT BE
CONDONED. HERE, I FIND IT DIFFICULT TO PERCEIVE A REPRESENTATION MORE
LIKELY TO FALSELY CREATE DOUBT, FRUSTRATION, AND DISSENSION CONCERNING
THE INTEGRITY OF NAGE'S LEADERSHIP THAN A PLEA BY ITS OWN NATIONAL VICE
PRESIDENT TO DISAVOW THAT LEADERSHIP AND, INSTEAD, TO CAST THEIR VOTES
FOR AFGE. INDEED, NO DOUBT EXISTS AS TO THE DELIBERATENESS OF THE
DECEPTION PERPETRATED BY THIS CIRCULAR. AND, THOUGH IT IS NOT FOR ME TO
SPECULATE THE ACTUAL EFFECT THIS DECEPTION HAD ON THE ELECTORATE, NOTE
MUST NEVERTHELESS BE TAKEN OF THE CLOSENESS OF THE VOTE ON THE FOLLOWING
DAY-- 947 FOR AFGE, 931; OR NAGE, AND 998 FOR NO UNION.
THE LABOR BOARD HAD OCCASION TO CONSIDER A SIMILAR SITUATION IN
UNITED AIRCRAFT CORPORATION, 103 NLRB 102. IN THAT PROCEEDING, THE
BOARD FOUND THAT 2 DAYS BEFORE A RUN-OFF ELECTION IN WHICH THE UAW AND
IAM PARTICIPATED, IAM CIRCULATED A COPY OF A WESTERN UNION TELEGRAM
AMONG THE EMPLOYEES OF IAM. THE TELEGRAM WAS EXTREMELY LAUDATORY OF UAW
AND ITS "GREAT PRESIDENT, WALTER REUTHER." THE BOARD FOUND "THAT THE
DISTRIBUTION OF THE FOREGOING TELEGRAM WAS A HOAX; THAT THE IAM NEVER
SENT SUCH A TELEGRAM; AND THAT THE UAW HAD CONCEIVED AND PERPETRATED
ITS SCHEME AS A VOTE-GETTING DEVICE." AT THE ELECTION THAT FOLLOWED, UAW
RECEIVED 935 VOTES, IAM RECEIVED 873. UPON OBJECTIONS FILED BY IAM THAT
THE DISTRIBUTION OF THE TELEGRAM AFFECTED THE RESULTS OF THE ELECTION
THE BOARD CONCLUDED "THAT THE UAW BY ITS DELIBERATE DECEPTION AS TO THE
SOURCE OF THE 'TELEGRAM' SO BLINDED THE EMPLOYEES TO THE SIGNIFICANCE OF
ITS CONTENTS THAT THEY COULD NEITHER RECOGNIZE IT AS A FAKE NOR EVALUATE
IT AS PROPAGANDA." SEE ALSO TIMKEN-DETROIT AXLE CO., 98 NLRB NO. 120.
BY REASON OF ALL THE FOREGOING I REJECT AFGE'S CONTENTION THAT THE
CIRCULAR UNDER CONSIDERATION WAS MERELY "SELF-SERVING CAMPAIGN
LITERATURE AND WAS THE TYPE A VOTER COULD EXPECT TO SEE IN AN ELECTION
CAMPAIGN, THUS, NOT PRECLUDING THE FREE AND INDEPENDENT JUDGMENT OF THE
VOTERS." INSTEAD, I CONCLUDE THAT THE VOTERS' "ABILITY TO EVALUATE THE
CHOICES WAS SO IMPAIRED BY-- CAMPAIGN TRICKERY THAT THEY WERE UNABLE TO
INTELLIGENTLY VOTE ON THE ISSUE." REPORT NO. 20 OF THE ASSISTANT
SECRETARY OF LABOR ISSUED UNDER E.O. 10988. /2/ I FURTHER FIND THAT BY
DISTRIBUTING THIS FLYER ON THE DAY BEFORE THE ELECTION NAGE WAS
PREVENTED FROM MAKING AN EFFECTIVE REPLY THERETO. WITH APPROXIMATELY
3,000 VOTERS SCATTERED THROUGHOUT 5-6 BUILDINGS IN THE ACTIVITY, IT
COULD NOT REASONABLY BE EXPECTED THAT NAGE COULD, WITHIN A MATTER OF
HOURS PREPARE, PUBLISH, AND DISTRIBUTE SUCH AN EFFECTIVE REPLY.
FOR THE REASONS STATED ABOVE, IT IS RECOMMENDED THAT NAGE'S
OBJECTIONS INSOFAR AS THEY RELATE TO THE DISTRIBUTION BY AFGE OF NAGE
EX. 2 BE SUSTAINED. IT IS FURTHER RECOMMENDED THAT THE ELECTION HELD
JULY 22, 1970 BE SET ASIDE AND A NEW RUN-OFF ELECTION BE DIRECTED UNDER
THE TERMS OF E.O. 11491, AND IN ACCORDANCE WITH APPLICABLE RULES AND
REGULATIONS OF THE ASSISTANT SECRETARY.
DATED AT WASHINGTON, D.C.,
FEBRUARY 26, 1971
/1/ AFGE, IN ITS BRIEF, HAS INADVERTENTLY CITED THIS CASE AS
"HOLLYWOOD PLASTICS."
/2/ IN CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, ISSUED UNDER E.O.
11491, THE ASSISTANT SECRETARY OF LABOR NOTED THAT HE WOULD "TAKE INTO
ACCOUNT THE EXPERIENCE GAINED-- UNDER THE PRIOR EXECUTIVE ORDER," E.O.
10988.
1 A/SLMR 55; P. 285; CASE NO. 22-2149; JUNE 10, 1971.
NATIONAL CENTER FOR MENTAL HEALTH SERVICES,
TRAINING AND RESEARCH
A/SLMR NO. 55
THE SUBJECT CASE, INVOLVING A REPRESENTATION PETITION FILED BY THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (IND.), LOCAL 43-99 (NAGE),
RAISED A QUESTION AS TO WHETHER THE AGREEMENT BETWEEN THE ACTIVITY AND
WASHINGTON AREA METAL TRADES COUNCIL, AFL-CIO (WAMTC), CONSTITUTED A BAR
TO THE PROCESSING OF THE PETITION IN THIS MATTER.
THE EVIDENCE ESTABLISHED THAT THE PROVISION IN THE AGREEMENT RELATING
TO ITS EFFECTIVE DATE AND DURATION PROVIDED THAT THE AGREEMENT (WITH A
FIXED TERMINATION DATE OF ONE YEAR) CONTINUED FROM YEAR TO YEAR UNLESS
EITHER PARTY, IN WRITING, SOUGHT ITS MODIFICATION OR TERMINATION.
IN SEPTEMBER 1969, THE WAMTC ADVISED THE ACTIVITY OF ITS WISH TO
RENEGOTIATE THEIR AGREEMENT. THEREAFTER, IN NOVEMBER 1969, THE PARTIES
AGREED IN WRITING TO EXTEND THE AGREEMENT TO JANUARY 1, 1970, OR "UNTIL
RENEGOTIATIONS WERE COMPLETED." HOWEVER, NO NEGOTIATIONS TOOK PLACE AND
NO NEW AGREEMENT WAS CONSUMMATED THEREAFTER PRIOR TO THE FILING OF THE
SUBJECT PETITION.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT, BY ITS
EXPRESS PROVISIONS, THE PARTIES' AGREEMENT TERMINATED WHEN THE INCUMBENT
UNION GAVE WRITTEN NOTICE OF ITS DESIRE TO RENEGOTIATE THE AGREEMENT.
THEREFORE, THE ASSISTANT SECRETARY FOUND THAT THE AGREEMENT DID NOT BAR
THE PROCESSING OF THE PETITION IN THE SUBJECT CASE. HE FOUND FURTHER,
THAT EVEN ASSUMING THAT THE AGREEMENT CONTINUED IN EFFECT AFTER THE
WAMTC'S REQUEST TO RENEGOTIATE, THE PARTIES' MUTUAL AGREEMENT, IN
NOVEMBER 1969, TO EXTEND THE AGREEMENT TO JANUARY 1, 1970 OR UNTIL
RENEGOTIATIONS WERE COMPLETED, RENDERED THE AGREEMENT NOT TO BE A BAR
AFTER JANUARY 1, 1970 SINCE AFTER SUCH DATE IT WAS INDEFINITE AS TO ITS
TERM.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DIRECTED AN ELECTION
IN THE SUBJECT CASE.
NATIONAL CENTER FOR MENTAL HEALTH SERVICES,
TRAINING AND RESEARCH /1/
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES (IND.), LOCAL R3-99
AND
WASHINGTON AREA METAL TRADES COUNCIL,
AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER HILARY M. SHEPLY. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD OF THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
(IND.), LOCAL R3-99, HEREIN CALLED NAGE, SEEKS AN ELECTION IN A UNIT OF
ALL NONSUPERVISORY EMPLOYEES OF THE CONSTRUCTION, ELECTRICAL MECHANICAL
AND GARAGE SECTIONS OF THE MAINTENANCE BRANCH OF ST. ELIZABETH'S
HOSPITAL, WASHINGTON, D.C., EXCLUDING SUPERVISORY AND MANAGERIAL
EMPLOYEES, GUARDS, PROFESSIONALS AND EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL NATURE WITHIN THE MEANING
OF EXECUTIVE ORDER 11491. /2/
THE ACTIVITY AND THE INTERVENOR, WASHINGTON AREA METAL TRADES
COUNCIL, AFL-CIO, HEREIN CALLED WAMTC, CONTEND THAT THE EMPLOYEES IN THE
ABOVE-DESCRIBED UNIT ARE COVERED BY A SIGNED AGREEMENT WHICH CONSTITUTES
A BAR TO THE PROCESSING OF THE PETITION IN THE SUBJECT CASE. THIS
CONTRACT, APPROVED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
ON NOVEMBER 14, 1967, PROVIDES IN ARTICLE XXIX ENTITLED, "EFFECTIVE DATE
AND DURATION OF AGREEMENT:"
1. THIS AGREEMENT SHALL BE BINDING UPON THE EMPLOYER AND THE COUNCIL
FOR A PERIOD OF ONE
YEAR FROM THE DATE OF APPROVAL BY THE DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE AND FROM
YEAR TO YEAR THEREAFTER UNLESS EITHER PARTY SHALL NOTIFY THE OTHER
PARTY IN WRITING AT LEAST
60 DAYS, BUT NOT MORE THAN 90 DAYS PRIOR TO SUCH DATE OR TO ANY
SUBSEQUENT ANNIVERSARY DATE,
OF ITS DESIRE TO MODIFY OR TERMINATE THIS AGREEMENT, OR A TIMELY AND
VALID REQUEST FOR
REDETERMINATION OF EXCLUSIVE STATUS HAS BEEN RECEIVED BETWEEN THE
90TH AND 60TH DAY PRIOR TO
THE ANNIVERSARY DATE OF THIS AGREEMENT.
2. IF EITHER PARTY GIVES NOTICE TO THE OTHER PARTY AS IN SECTION 1
ABOVE, THEN BETWEEN THE
60TH AND 45TH DAY PRIOR TO THE TERMINAL DATE OF THIS AGREEMENT,
REPRESENTATIVES OF THE
EMPLOYER AND THE COUNCIL SHALL MEET AND COMMENCE NEGOTIATIONS,
PROVIDED A VALID AND TIMELY
REQUEST FOR REDETERMINATION OF EXCLUSIVE RECOGNITION HAS NOT BEEN
FILED BY ANOTHER EMPLOYEE
ORGANIZATION BETWEEN THE 90TH AND 60TH DAY PRIOR TO THE TERMINAL DATE
OF THIS AGREEMENT.
IN ACCORDANCE WITH THE ABOVE PROVISIONS, THE WAMTC, BY LETTER DATED
AUGUST 14, 1968, REQUESTED THE ACTIVITY TO RENEGOTIATE THE EXISTING
AGREEMENT, AND THE ACTIVITY, BY LETTER DATED SEPTEMBER 6, 1968, AGREED
TO MEET AND SUGGESTED A MEETING DATE OF SEPTEMBER 26, 1968, IN ITS
ADMINISTRATION BUILDING. THE RECORD REVEALS THAT REPRESENTATIVES OF THE
ACTIVITY APPEARED AT THE APPOINTED TIME AND PLACE; HOWEVER, NO ONE
REPRESENTING THE WAMTC APPEARED FOR THE MEETING, AND THEREFORE, NO
NEGOTIATIONS TOOK PLACE.
ONE YEAR LATER, THE WAMTC, BY LETTER DATED SEPTEMBER 5, 1969, AGAIN
ADVISED THE ACTIVITY OF ITS WISH TO RENEGOTIATE THE AGREEMENT.
SUBSEQUENTLY, ON NOVEMBER 3, 1969, THE WAMTC, IN WRITING, REQUESTED THAT
THE AGREEMENT BE EXTENDED UNTIL JANUARY 1, 1970, OR UNTIL RENEGOTIATIONS
WERE COMPLETED. THE ACTIVITY, BY LETTER DATED NOVEMBER 17, 1969, AGREED
TO THE PROPOSED EXTENSION. HOWEVER, NO NEGOTIATIONS TOOK PLACE
THEREAFTER.
THE RECORD REVEALS THAT ON OCCASIONS IN 1968, 1969 AND 1970, THE
ACTIVITY AND THE WAMTC HAVE PROCESSED GRIEVANCES AND HAVE HELD MEETINGS
OF SAFETY COMMITTEES APPARENTLY UNDER WHAT THEN WAS BELIEVED TO BE AN
EXISTING AGREEMENT.
BASED ON THE FOREGOING, THE ACTIVITY AND THE WAMTC TAKE THE POSITION
THAT THE PETITION IN THE SUBJECT CASE WAS FILED AT A TIME WHEN A
NEGOTIATED AGREEMENT WAS IN EXISTENCE AND THAT THEREFORE, THE NAGE'S
PETITION IN THE SUBJECT CASE SHOULD NOT BE PROCESSED.
AS STATED ABOVE, SECTION 1 OF ARTICLE XXIX, THE PARTIES' 1967
AGREEMENT PROVIDES, WITH RESPECT TO DURATION, THAT THE AGREEMENT
AUTOMATICALLY RENEWS ITSELF FROM YEAR TO YEAR "UNLESS EITHER PARTY SHALL
NOTIFY THE OTHER PARTY IN WRITING AT LEAST 60 DAYS, BUT NOT MORE THAN 90
DAYS PRIOR TO SUCH DATE OR TO ANY SUBSEQUENT ANNIVERSARY DATE, OF ITS
DESIRE TO MODIFY OR TERMINATE THIS AGREEMENT . . . " THE EVIDENCE
ESTABLISHES THAT ON SEPTEMBER 5, 1969, THE WAMTC DID NOTIFY THE ACTIVITY
OF ITS DESIRE TO RENEGOTIATE THE AGREEMENT. THEREFORE, BY ITS TERMS,
THE AGREEMENT APPROVED IN 1967 TERMINATED UPON ONE OF THE PARTIES
THERETO STATING THAT IT DESIRED TO RENEGOTIATIATE. ACCORDINGLY, AFTER
NOVEMBER 1969, THE AGREEMENT MUST BE VIEWED AS AN ORAL AGREEMENT WHICH
WOULD NOT SERVE AS A BAR TO THE FILING OF A REPRESENTATION PETITION.
MOREOVER, EVEN ASSUMING THAT THE AGREEMENT CONTINUED IN EFFECT AFTER
THE PARTIES' ABOVE-MENTIONED COMMUNICATIONS IN 1969, THE EXCHANGE OF
LETTERS BETWEEN THE PARTIES IN NOVEMBER 1969 IN EFFECT RESULTED IN THE
PARTIES EXTENDING THEIR AGREEMENT AND SETTING A FIXED TERMINATION DATE
OF JANUARY 1, 1970, "OR UNTIL RENEGOTIATIONS WERE COMPLETED."
CONSEQUENTLY, AFTER JANUARY 1, 1970, THE AGREEMENT WOULD BE VIEWED AS
NOT HAVING A FIXED TERM OR DURATION AND COULD, THEREFORE, NOT CONSTITUTE
A BAR TO AN ELECTION. /3/ FURTHER, SINCE NO NEW AGREEMENT WAS
NEGOTIATED THEREAFTER, IT IS CLEAR THAT THERE WAS NO AGREEMENT OF FIXED
TERM IN EFFECT AT THE TIME THE PETITION IN THE SUBJECT CASE WAS FILED ON
OCTOBER 16, 1970, BY THE NAGE. /4/
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT THERE WAS NO
BAR TO THE PROCESSING OF THE PETITION IN THE SUBJECT CASE. ACCORDINGLY,
I FIND THAT THE FOLLOWING EMPLOYEES OF THE ACTIVITY CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491:
ALL EMPLOYEES OF THE CONSTRUCTION, ELECTRICAL, MECHANICAL AND GARAGE
SECTIONS OF THE
MAINTENANCE BRANCH OF ST. ELIZABETH'S HOSPITAL, WASHINGTON, D.C.,
EXCLUDING ALL EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE ALL THOSE IN THE UNIT WHO WERE
EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES (IND.), LOCAL R3-99; OR, BY
WASHINGTON AREA METAL TRADES COUNCIL, AFL-CIO; OR, BY NEITHER.
DATED, WASHINGTON, D.C.
JUNE 10, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING. THE
UNIT INVOLVED IS LOCATED AT THE ST. ELIZABETH'S HOSPITAL, IN WASHINGTON,
D.C.
/2/ THE PARTIES STIPULATED TO THE APPROPRIATENESS OF THE UNIT.
/3/ CF. UNITED STATES TREASURY DEPARTMENT, UNITED STATES MINT,
PHILADELPHIA, PENNSYLVANIA, A/SLMR NO. 45.
/4/ IN VIEW OF THE FACT THAN AN EARLIER PETITION COVERING THE SAME
UNIT WAS WITHDRAWN BY THE NAGE PRIOR TO THE FILING OF THE INSTANT
PETITION, THE WAMTC CONTENDED THAT SECTION 202.3(D) OF THE ASSISTANT
SECRETARY'S REGULATIONS PRECLUDED FURTHER PROCESSING OF THE INSTANT
PETITION. SECTION 202.3(D) PROVIDES, IN PART, THAT WHERE A PETITION HAS
BEEN FILED NOT MORE THAN 90 DAYS AND NOT LESS THAN 60 DAYS PRIOR TO THE
TERMINAL DATE OF AN AGREEMENT AND IS SUBSEQUENTLY WITHDRAWN, THE
ACTIVITY AND THE INCUMBENT EXCLUSIVE REPRESENTATIVE SHALL BE AFFORDED A
90-DAY PERIOD FREE FROM RIVAL CLAIM. AS NOTED ABOVE, THE EVIDENCE
ESTABLISHES THAT AFTER JANUARY 1, 1970, THERE WAS NO AGREEMENT OF FIXED
TERM IN EFFECT WHICH COULD CONSTITUTE A BAR TO AN ELECTION. IN THESE
CIRCUMSTANCES, SINCE THE NAGE'S WITHDRAWN PETITION WAS FILED SUBSEQUENT
TO JANUARY 1, 1970, AT A TIME WHEN NO AGREEMENT WHICH COULD CONSTITUTE A
BAR EXISTED, I VIEW SECTION 202.3(D) AS BEING INAPPLICABLE TO THE FACTS
OF THIS CASE.
1 A/SLMR 54; P. 282; CASE NO. 31-3210E.O.; JUNE 8, 1971.
ARMY AND AIR FORCE EXCHANGE SERVICE,
NEW ENGLAND EXCHANGE REGION,
0WESTOVER AIR FORCE BASE,
CHICOPEE, MASSACHUSETTS
A/SLMR NO. 54
THIS CASE, INVOLVING A REPRESENTATION PETITION FILED BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE), PRESENTED QUESTIONS AS TO
WHETHER A UNIT OF WAREHOUSE EMPLOYEES IS APPROPRIATE AND WHETHER
OFF-DUTY MILITARY PERSONNEL SHOULD BE EXCLUDED FROM THE PROPOSED UNIT.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY DETERMINED THAT A
UNIT OF WAREHOUSE EMPLOYEES WAS APPROPRIATE. HE NOTED IN THIS RESPECT
THAT THE EMPLOYEES IN THE CLAIMED UNIT WERE SEPARATED PHYSICALLY FROM
THE REST OF THE ACTIVITY'S EMPLOYEES AND THEIR JOB FUNCTIONS, WHICH FOR
THE MOST PART INVOLVED MANUAL LABOR, WERE DISSIMILAR FROM THOSE OF OTHER
ACTIVITY EMPLOYEES. HE ALSO NOTED THAT WAREHOUSE EMPLOYEES WORKED UNDER
SEPARATE SUPERVISION, HAD DIFFERENT WORK SHIFTS FROM OTHER ACTIVITY
EMPLOYEES AND THEIR INTERCHANGE WITH OTHER EMPLOYEES WAS NEGLIGIBLE.
IN THESE CIRCUMSTANCES AND NOTING THAT OFF-DUTY MILITARY PERSONNEL
COULD NOT BE EXCLUDED FROM THE CLAIMED UNIT BASED SOLELY ON THEIR
MILITARY STATUS, THE ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE
PETITIONED FOR UNIT, INCLUDING OFF-DUTY MILITARY PERSONNEL.
ARMY AND AIR FORCE EXCHANGE SERVICE,
NEW ENGLAND EXCHANGE REGION,
WESTOVER AIR FORCE BASE,
CHICOPEE, MASSACHUSETTS /1/
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER ANTHONY D. WOLLASTON. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
HEREIN CALLED NAGE, SEEKS AN ELECTION IN A UNIT OF ALL NONSUPERVISORY
HOURLY PAID (BLUE COLLAR) WAREHOUSE EMPLOYEES EXCLUDING SUPERVISORY AND
PROFESSIONAL EMPLOYEES AT THE ACTIVITY'S WESTOVER AIR FORCE BASE
INSTALLATION. /2/
THE ACTIVITY AGREES WITH THE NAGE THAT MILITARY PART-TIME EMPLOYEES
SHOULD BE EXCLUDED FROM THE CLAIMED UNIT, BUT IT ASSERTS THAT THE ONLY
APPROPRIATE UNIT WOULD BE ONE THAT INCLUDES ITS NONSUPERVISORY CENTRAL
OFFICE EMPLOYEES.
THE EMPLOYEES IN THE CLAIMED UNIT AT WESTOVER AIR FORCE BASE WORK IN
THE ADMINSTRATIVE HEADQUARTERS FOR THE NEW ENGLAND EXCHANGE REGION,
WHICH IS ONE OF 12 GEOGRAPHICAL ADMINISTRATIVE DIVISIONS OF THE ARMY AND
AIR FORCE EXCHANGE SERVICE. THIS HEADQUARTERS OPERATION CONSISTS OF
FIVE SEPARATE BRANCHES PERFORMING, RESPECTIVELY, ACCOUNTING, DATA
PROCESSING, INVENTORY MANAGEMENT, STORAGE AND DISTRIBUTION, AND
PERSONNEL ADMINISTRATION. ALL EMPLOYEES OF THE DATA PROCESSING,
INVENTORY MANAGEMENT, AND PERSONNEL BRANCHES WORK IN ONE ADMINISTRATION
BUILDING. THE ACCOUNTING BRANCH IS IN A SEPARATE ADJACENT BUILDING, AND
STORAGE AND DISTRIBUTION EMPLOYEES WORK AT TWO WAREHOUSES AT THE BASE.
IT WAS ESTIMATED THAT THERE ARE 46 NONSUPERVISORY EMPLOYEES IN THE TWO
WAREHOUSES AND 60 NONSUPERVISORY EMPLOYEES IN THE OTHER BRANCHES OF THE
ACTIVITY'S WESTOVER OPERATION.
OF THE APPROXIMATELY 46 NONSUPERVISORY EMPLOYEES EMPLOYED AT THE
STORAGE AND DISTRIBUTION WAREHOUSES, 17 ARE DESCRIBED AS "OFFICE TYPE"
WORKERS. THERE ARE ALSO MOTOR VEHICLE OPERATORS, MATERIALS HANDLING AND
EQUIPMENT OPERATORS, AND MERCHANDISE MARKERS, IN ADDITION TO THE VARIOUS
TYPES OF CLERKS. ALL OF THESE EMPLOYEES ARE HOURLY PAID. ADDITIONALLY,
SEVEN OFF-DUTY MILITARY EMPLOYEES WORK IN THE WAREHOUSE OPERATION.
CENTRAL OFFICE NONSUPERVISORY EMPLOYEES WHO, AS NOTED ABOVE, ARE
EXCLUDED BY THE NAGE, ARE SECRETARIES, CLERK TYPISTS, GENERAL OFFICE
CLERKS, PROCUREMENT CLERKS, COMMODITY GROUP BUYERS, COURIERS,
ACCOUNTANTS, AND FORMS MANAGEMENT AND PERSONNEL EMPLOYEES. THE CENTRAL
OFFICE CLERKS, LIKE THEIR COUNTERPARTS AT THE WAREHOUSES, ARE HOURLY
PAID WHEREAS BUDGET ANALYSTS (ACCOUNTANTS), DATA PROCESSORS, AND
INVENTORY MANAGEMENT EMPLOYEES ARE SALARIED.
IMMEDIATE SUPERVISION IS THE RESPONSIBILITY OF SUPERVISORS AT THE JOB
LOCATION INVOLVED. THERE ARE 26 TO 28 SUPERVISORS FOR THE ENTIRE
WESTOVER OPERATION AND SEVEN TO TEN OF THESE DIRECT WAREHOUSE EMPLOYEES.
ABOVE THESE IMMEDIATE SUPERVISORS ARE BRANCH CHIEFS FOR EACH OF THE
FIVE BRANCHES. THERE IS A CHIEF AND A DEPUTY OF THE NEW ENGLAND
EXCHANGE REGION, EITHER OF WHOM VISITS THE WAREHOUSES AT LEAST ON A
WEEKLY BASIS. ALSO, THE INVENTORY MANAGEMENT CHIEF VISITS THE
WAREHOUSES AT LEAST DAILY, AND THERE IS EVIDENCE THAT THE PERSONNEL
CHIEF VISITS THE WAREHOUSES ON OCCASION. INDIVIDUAL SUPERVISORS
RECOMMEND HIRING, DISCHARGE, AND PROMOTION, AND THE RECORD REVEALS THAT
THE CHIEF OF THE EXCHANGE REGION PROCESSES THESE RECOMMENDATIONS
REGARDLESS OF THE LOCATION OF THE EMPLOYEES INVOLVED. SUPERVISORY STAFF
MEETINGS ARE HELD WEEKLY. ALTHOUGH ALL BRANCH CHIEFS ATTEND THESE
MEETINGS, THE WAREHOUSE MANAGER AND THE TRAFFIC MANAGER APPARENTLY DO
NOT ATTEND THE MEETINGS REGULARLY AND WHEN THEY DO IT IS ONLY BY
INVITATION.
THE WAREHOUSES OPERATE ON TWO SHIFTS-- 8:00 A.M. TO 5:00 P.M. AND
3:00 P.M. TO 11:00 P.M. ON THE OTHER HAND, EMPLOYEES AT THE CENTRAL
OFFICE BUILDING WORK 8:00 A.M. TO 5:00 P.M. /3/ FRINGE BENEFITS ARE
IDENTICAL FOR ALL REGULAR FULL-TIME EMPLOYEES REGARDLESS OF LOCATION.
WAGE RATES FOR ALL HOURLY PAID EMPLOYEES, WHICH INCLUDES NONSUPERVISORY
WAREHOUSE EMPLOYEES AND SOME OF THE EMPLOYEES IN THE OTHER BRANCHES, ARE
ALSO THE SAME REGARDLESS OF LOCATION. /4/
THE EVIDENCE ESTABLISHES THAT THERE IS LITTLE OR NO INTERCHANGE OF
EMPLOYEES BETWEEN THE WAREHOUSES AND THE ACTIVITY'S OTHER OPERATIONS.
IN THIS RESPECT, THE ONLY RECORDED INSTANCES OF INTERCHANGE HAVE
OCCURRED WHEN A CLERICAL EMPLOYEE FROM ONE LOCATION HAS FILLED IN FOR A
CLERICAL EMPLOYEE AT ANOTHER LOCATION, WHERE SICKNESS HAS LEFT A BRANCH
SHORT-HANDED; WHEN BULKY ITEMS HAVE HAD TO BE MOVED REQUIRING THE USE
OF MANUAL LABOR, WAREHOUSE EMPLOYEES HAVE BEEN UTILIZED ON OCCASION;
AND, ONCE A YEAR, WHEN CENTRAL OFFICE AND WAREHOUSE EMPLOYEES HAVE
WORKED TOGETHER TAKING INVENTORY.
IN ALL THE CIRCUMSTANCES, I FIND THE UNIT PETITIONED FOR BY THE NAGE
TO BE APPROPRIATE AND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF OPERATIONS. THUS, THE EVIDENCE ESTABLISHES THAT THE
WAREHOUSE EMPLOYEES ARE SEPARATED PHYSICALLY FROM THE REMAINING
EMPLOYEES OF THE ACTIVITY AND THAT THE JOB FUNCTIONS OF THE WAREHOUSE
EMPLOYEES INVOLVE, FOR THE MOST PART, MANUAL LABOR, AND ARE DISSIMILAR
FROM THOSE OF OTHER ACTIVITY EMPLOYEES. /5/ MOREOVER, THE WAREHOUSE
EMPLOYEES HAVE SEPARATE SUPERVISION, /6/ WORK DIFFERENT SHIFTS THAN
OTHER ACTIVITY EMPLOYEES, AND THEIR INTERCHANGE WITH OTHER EMPLOYEES IS
NEGLIGIBLE.
WITH RESPECT TO THE NAGE'S EXCLUSION OF OFF-DUTY MILITARY PERSONNEL,
FOR THE REASONS ENUNCIATED IN DEPARTMENT OF THE NAVY, NAVY EXCHANGE,
MAYPORT, FLORIDA, A/SLMR NO. 24 AND ARMY AND AIR FORCE EXCHANGE
SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE,
NEW MEXICO, A/SLMR NO. 25, I FIND THAT OFF-DUTY MILITARY PERSONNEL
WORKING IN THE ACTIVITY'S WAREHOUSES ARE ELIGIBLE TO VOTE ON THE SAME
BASIS AS OTHER EMPLOYEES IN THE PETITIONED FOR UNIT.
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491:
ALL HOURLY PAID WAREHOUSE EMPLOYEES, INCLUDING OFF-DUTY MILITARY
PERSONNEL WITHIN THE
FOREGOING CATEGORY, EMPLOYED BY THE ARMY AND AIR FORCE EXCHANGE
SERVICE, NEW ENGLAND EXCHANGE
REGION, WESTOVER AIR FORCE BASE, CHICOPEE, MASSACHUSETTS, EXCLUDING
ALL CENTRAL OFFICE
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, PROFESSIONAL EMPLOYEES, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING THE EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION
DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES.
DATED, WASHINGTON, D.C.
JUNE 8, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAGE SUBSEQUENTLY AMENDED ITS PETITION TO EXCLUDE ALSO
MILITARY PART-TIME EMPLOYEES, GUARDS, MANAGEMENT EMPLOYEES, AND TO SHOW
EXCLUSION OF CENTRAL OFFICE EMPLOYEES.
/3/ THE DATA PROCESSING BRANCH, WHICH IS AT A LOCATION SEPARATE FROM
THE OTHER ADMINISTRATION OFFICES, HAS SHIFTS OF 6:00 A.M. TO 3:00 P.M.
AND 3:00 P.M. TO 11:00 P.M.
/4/ THE EVIDENCE REVEALS THAT IF A REDUCTION IN FORCE WERE NECESSARY,
WAREHOUSE EMPLOYEES WOULD BE PUT ON THE SAME LIST WITH CENTRAL OFFICE
EMPLOYEES IF THE JOBS TO BE VACATED WERE SIMILAR.
/5/ THE ACTIVITY CONTENDS THAT THE UNIT SOUGHT IS INAPPROPRIATE
BECAUSE WAREHOUSE CLERICALS IN THE CLAIMED UNIT HAVE SIMILAR DUTIES
INCLUDING THE LACK OF INTERCHANGE BETWEEN THESE EMPLOYEES, THE DIFFERENT
HOURS WORKED AND THE PHYSICAL SEPARATION OF THE FACILITIES, I FIND THAT
THE FACT THAT THERE ARE CLERICAL EMPLOYEES WHO ARE NOT COVERED BY THE
PETITION IN THE SUBJECT CASE DOES NOT RENDER THE UNIT INAPPROPRIATE.
/6/ AS NOTED ABOVE, SUPERVISORY STAFF MEETINGS AT THE ACTIVITY
APPARENTLY DO NOT REGULARLY INCLUDE THE WAREHOUSE MANAGER OR THE TRAFFIC
MANAGER.
1 A/SLMR 53; P. 274; CASE NO. 64-1136(CA); JUNE 8, 1971.
DEPARTMENT OF DEFENSE,
ARKANSAS NATIONAL GUARD
A/SLMR NO. 53
THIS CASE INVOLVES A COMPLAINT FILED BY NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1671 (NFFE). THE SOLE ISSUE PRESENTED IS
WHETHER A DOCUMENT POSTED ON AN EMPLOYEE BULLETIN BOARD, DISPARAGING AN
EMPLOYEE WHO HAD FILED A GRIEVANCE, CONSTITUTES A VIOLATION OF SECTION
19(A)(1) OF THE ORDER.
IN EARLY 1970 A GRIEVANCE WAS INITIATED BY THE NFFE ON BEHALF OF AN
EMPLOYEE WHO ALLEGEDLY WAS PASSED OVER FOR A PROMOTION GIVEN TO ANOTHER
EMPLOYEE. IN EXPLAINING HIS POSITION TO THE ADJUTANT GENERAL WITH
RESPECT TO HIS FAILURE TO PROMOTE THE EMPLOYEE, THE SUPERVISOR, WHOSE
ACTIONS ARE ALLEGED TO BE VIOLATIVE, PREPARED A MEMORANDUM WHICH, AMONG
OTHER THINGS, DISCUSSED THE EMPLOYEE'S MORAL CALIBRE, INCLUDING HIS
ARREST RECORD AND IMPROPER USE OF SICK LEAVE AND ALSO CRITICIZED THE
LOCAL UNION'S LEADERSHIP FOR PROCESSING THE GRIEVANCE. THE SUPERVISOR
CAUSED THIS MEMORANDUM TO BE POSTED ON AN EMPLOYEE BULLETIN BOARD WHERE
IT WAS SEEN BY MANY EMPLOYEES.
IN AGREEMENT WITH THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS,
THE ASSISTANT SECRETARY FOUND THAT THE MEMORANDUM POSTED ON THE EMPLOYEE
BULLETIN BOARD, DISPARAGING AN EMPLOYEE WHO HAD FILED A GRIEVANCE,
CONSTITUTED A VIOLATION OF SECTION 19(A)(1) OF THE ORDER. IN THIS
REGARD, THE ASSISTANT SECRETARY REASONED THAT THE LOGICAL IMPACT OF THE
TEXT OF THE MEMORANDUM WAS TO INSTILL IN THE EMPLOYEES A FEAR OF THE
ADVERSE EFFECTS OF FILING GRIEVANCES, AND TO UNDERMINE THE UNION. SUCH
AN EFFECT WOULD TEND TO DISCOURAGE EXERCISE OF THE FREEDOM OF EMPLOYEES
TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS, RIGHTS WHICH ARE
GUARANTEED BY SECTION 1(A) OF THE ORDER AND THE ABRIDGEMENT OF WHICH ARE
PRESCRIBED BY SECTION 19(A)(1) OF THE ORDER. IN REACHING HIS DECISION
IN THIS MATTER, THE ASSISTANT SECRETARY DID NOT ADOPT OR COMMENT UPON
THE HEARING EXAMINER'S FINDINGS RELATING TO EITHER ANTI-UNION ANIMUS OR
A LACK OF CREDIBILITY ON THE PART OF THE SUPERVISOR INVOLVED SINCE THE
FINDING OF VIOLATION WAS NOT DEPENDENT UPON A FINDING OF EITHER.
DEPARTMENT OF DEFENSE,
ARKANSAS NATIONAL GUARD
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1671
ON APRIL 28, 1971, HEARING EXAMINER HENRY L. SEGAL ISSUED HIS REPORT
AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE
RESPONDENT HAD ENGAGED IN CERTAIN CONDUCT PROHIBITED BY SECTION 19(A)(1)
OF EXECUTIVE ORDER 11491. ACCORDINGLY, THE HEARING EXAMINER RECOMMENDED
THAT RESPONDENT BE REQUIRED TO TAKE CERTAIN AFFIRMATIVE ACTION AS SET
FORTH IN THE ATTACHED REPORT AND RECOMMENDATIONS.
NO EXCEPTIONS TO THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS
WERE FILED.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE ENTIRE RECORD IN
THE SUBJECT CASE, I ADOPT THE FINDINGS AND RECOMMENDATIONS OF THE
HEARING EXAMINER TO THE EXTENT CONSISTENT HEREWITH.
THE RECORD CLEARLY SUPPORTS THE HEARING EXAMINER'S FINDING THAT THE
MEMORANDUM POSTED ON THE EMPLOYEE BULLETIN BOARD, DISPARAGING AN
EMPLOYEE WHO HAD FILED A GRIEVANCE, CONSTITUTED A VIOLATION OF SECTION
19(A)(1) OF THE ORDER. I DO NOT ADOPT OR COMMENT UPON THE HEARING
EXAMINER'S FINDINGS RELATING TO EITHER ANTI-UNION ANIMUS OR A LACK OF
CREDIBILITY ON THE PART OF COLONEL COPELAND, RESPONDENT'S AGENT TO WHOM
THE UNFAIR LABOR PRACTICE WAS ATTRIBUTED, SINCE THE VIOLATION IS NOT
DEPENDENT UPON A FINDING OF EITHER. I FIND THAT THE PUBLICATION OF THE
MEMORANDUM, IN AND OF ITSELF, IRRESPECTIVE OF THE SUBJECTIVE MOTIVATION
PROMPTING SUCH, NECESSARILY AND EFFECTIVELY CONSTITUTED AN INHERENT
INTERFERENCE, RESTRAINT AND COERCION OF EMPLOYEES IN THE EXERCISE OF THE
RIGHTS ASSURED BY THE ORDER. AS NOTED BY THE HEARING EXAMINER, THE
SUBSTANCE OF THE MEMORANDUM EMPHASIZED THE GRIEVANT'S LEAVE RECORDS,
ARREST RECORD, AND THE COLONEL'S VIEW OF THE GRIEVANT'S MORAL CALIBRE.
ADDITIONALLY, IT CRITICIZED THE LOCAL UNION LEADERSHIP FOR FILING THE
GRIEVANCE. IN ALL THE CIRCUMSTANCES, THE LOGICAL IMPACT OF THE TEXT WAS
TO INSTILL IN THE EMPLOYEES A FEAR OF THE ADVERSE EFFECTS OF FILING
GRIEVANCES, AND TO UNDERMINE THE UNION. SUCH AN EFFECT WOULD TEND TO
DISCOURAGE EXERCISE OF THE FREEDOM OF EMPLOYEES TO FORM, JOIN, OR ASSIST
LABOR ORGANIZATIONS, RIGHTS WHICH ARE GUARANTEED BY SECTION 1(A) OF THE
ORDER, RIGHTS THE ABRIDGMENTS OF WHICH ARE PRESCRIBED BY SECTION
19(A)(1) OF THE ORDER.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF THE ORDER, I SHALL ORDER THE
RESPONDENT TO CEASE AND DESIST THEREFROM AND TO TAKE SPECIFIC
AFFIRMATIVE ACTION, AS SET FORTH IN THE HEARING EXAMINER'S RECOMMENDED
ORDER.
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER AND SECTION 203.25(A)
OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE ARKANSAS NATIONAL
GUARD, CAMP ROBINSON, NORTH LITTLE ROCK, ARKANSAS, SHALL:
1. CEASE AND DESIST FROM:
(A) COMMUNICATING TO ANY OF ITS EMPLOYEES NOT DIRECTLY INVOLVED IN
THE PROCESSING OF A
SPECIFIC GRIEVANCE, EITHER ORALLY OR IN WRITING, DEROGATORY
INFORMATION CONCERNING A FELLOW
EMPLOYEE WHO INITIATES A GRIEVANCE PROCEEDING;
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A) OF EXECUTIVE ORDER
11491.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) POST AT ITS FACILITIES AT CAMP ROBINSON, NORTH LITTLE ROCK,
ARKANSAS, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE ADJUTANT
GENERAL AND SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY (60)
CONSECUTIVE DAYS THEREAFTER,
IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY
POSTED. THE ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL;
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN
WRITING WITHIN TEN (10) DAYS FROM THE DATE OF THIS ORDER AS TO WHAT
STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
JUNE 8, 1971
WE WILL NOT COMMUNICATE TO ANY OF OUR EMPLOYEES NOT DIRECTLY INVOLVED
IN THE PROCESSING OF A SPECIFIC GRIEVANCE, EITHER ORALLY OR IN WRITING,
DEROGATORY INFORMATION CONCERNING A FELLOW EMPLOYEE WHO INITIATES A
GRIEVANCE PROCEEDING.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
SECTION 1(A) OF EXECUTIVE ORDER 11491.
DATED BY
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR WHOSE ADDRESS IS 2511 FEDERAL OFFICE
BUILDING, 911 WALNUT STREET, KANSAS CITY, MISSOURI 64106.
DEPARTMENT OF DEFENSE
ARKANSAS NATIONAL GUARD
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1671
LT. COL. K. L. MATTHEWS, STAFF JUDGE ADVOCATE,
CAMP ROBINSON, NORTH LITTLE ROCK,
ARKANSAS, FOR THE RESPONDENT.
HOWARD FELDMAN, ESQ., OF THE LEGAL STAFF OF
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
WASHINGTON, D.C., FOR THE COMPLAINANT.
BEFORE: HENRY L. SEGAL, HEARING EXAMINER
THIS PROCEEDING, HEARD AT NORTH LITTLE ROCK, ARKANSAS, ON MARCH 30,
1971, ARISES UNDER EXECUTIVE ORDER 11491, (HEREIN CALLED THE ORDER)
PURSUANT TO A NOTICE OF HEARING ISSUED BY THE REGIONAL ADMINISTRATOR OF
THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT
OF LABOR, KANSAS CITY REGION, ON JANUARY 8, 1971. IT WAS INITIATED BY A
COMPLAINT FILED BY THE COMPLAINANT ON JUNE 5, 1970. /1/
AT THE HEARING BOTH PARTIES WERE REPRESENTED BY COUNSEL WHO WERE
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, SUBMIT ORAL ARGUMENT AND FILE BRIEFS. /2/ UPON THE ENTIRE
RECORD IN THIS MATTER AND FROM OBSERVATION OF THE WITNESSES, I MAKE THE
FOLLOWING:
I. THE ISSUES
THE SOLE ISSUE PRESENTED IN THIS PROCEEDING IS WHETHER A DOCUMENT
POSTED ON A BULLETIN BOARD BY A SUPERVISOR WAS VIOLATIVE OF SECTION
19(A)(1) OF THE ORDER.
II. THE UNFAIR LABOR PRACTICES
1. BACKGROUND.
EXCLUSIVE RECOGNITION WAS GRANTED TO THE COMPLAINANT BY THE
RESPONDENT ON DECEMBER 10, 1969, PURSUANT TO THE PROVISIONS OF THE
PREVIOUS EXECUTIVE ORDER, NO. 10988, FOR A UNIT OF "NON-SUPERVISORY AND
NON-MANAGERIAL ARMY NATIONAL GUARD TECHNICIANS EMPLOYED IN THE STATE OF
ARKANSAS." THE COMPLAINANT AND RESPONDENT HAVE NOT YET EXECUTED A
NEGOTIATED AGREEMENT, BUT ARE IN THE PROCESS OF NEGOTIATING ONE.
HOWEVER, THE RESPONDENT IS ENTERTAINING GRIEVANCES. /3/
THE SPECIFIC FACILITY OF THE RESPONDENT INVOLVED IN THE ALLEGED
UNFAIR LABOR PRACTICE IS THE "COMBINED STATE MAINTENANCE SHOP" (HEREIN
CALLED THE CSMS), LOCATED AT CAMP ROBINSON, NORTH LITTLE ROCK, ARKANSAS.
THE SUPERVISOR, WHOSE ACTIONS ARE ALLEGED TO BE VIOLATIVE, IS COLONEL
ROBERT W. COPELAND. COLONEL COPELAND IS IN CHARGE OF RESPONDENT'S
BUILDING FACILITIES THROUGHOUT THE STATE OF ARKANSAS, AND THE CSMS IS
UNDER HIS GENERAL SUPERVISION.
IN EARLY 1970, A GRIEVANCE WAS INITIATED BY COMPLAINANT ON BEHALF OF
RALPH E. HEFLIN, THEN AN EMPLOYEE IN THE CSMS, WHO ALLEGEDLY WAS "PASSED
OVER" FOR A PROMOTION GIVEN TO ANOTHER EMPLOYEE.
THE FIRST STEP OF THE GRIEVANCE PROCEDURE WAS TAKEN TO LT. COL.
WILLIAM C. PAGE, WHO WAS THEN OFFICER IN CHARGE OF THE CSMS (PAGE HAS
SINCE RETIRED), AND A SUBORDINATE SUPERVISOR TO COLONEL COPELAND. THE
SECOND STEP CONSISTED OF A MEETING ON MARCH 7 OR 8, 1970, OF HARRISON
LONG, SHOP STEWARD FOR LOCAL 1671 AND MR. HOWELL, CHIEF STEWARD OF
COMPLAINANT FOR THE STATE OF ARKANSAS, WITH COLONEL COPELAND. THERE
ENSUED A GENERAL DISCUSSION OF THE GRIEVANCE DURING WHICH, ACCORDING TO
LONG, COLONEL COPELAND INDICATED HIS DISLIKE OF THE UNION. /4/
2. COLONEL COPELAND'S MEMORANDUM OF MARCH 24, 1970, AND ITS POSTING
ON MARCH 25, 1970
ACCORDING TO COLONEL COPELAND, HE WAS REQUIRED MANY TIMES TO EXPLAIN
TO THE ADJUTANT GENERAL OF THE STATE OF ARKANSAS HIS POSITION WITH
RESPECT TO HIS FAILURE TO PROMOTE HEFLIN BECAUSE OF LETTERS SENT BY THE
COMPLAINANT TO THE ADJUTANT GENERAL CONCERNING HEFLIN'S GRIEVANCE. /5/
ON MARCH 24, 1970, COLONEL COPELAND PREPARED AND SENT A MEMORANDUM TO
THE ADJUTANT GENERAL AS A SECOND ENDORSEMENT TO A LETTER FROM THE
COMPLAINANT TO THE ADJUTANT GENERAL CONCERNING THE GRIEVANCE. THE FIRST
ENDORSEMENT WAS A REQUEST TO COLONEL COPELAND BY THE ADJUTANT GENERAL
FOR AN EXPLANATION.
ACCORDING TO COLONEL COPELAND HE HAD HEARD THAT HEFLIN HAD AN ARREST
RECORD, AND ON MARCH 24, PRIOR TO PREPARING HIS MEMORANDUM, COLONEL
COPELAND SENT HIS SECRETARY TO THE LITTLE ROCK POLICE HEADQUARTERS AND
TO THE ARKANSAS STATE POLICE HEADQUARTERS WHERE FOR NOMINAL FEES SHE
OBTAINED COPIES OF HEFLIN'S ARREST RECORD.
A COPY OF COLONEL COPELAND'S MEMORANDUM OF MARCH 24, 1970 TO THE
ADJUTANT GENERAL IS ATTACHED HERETO AS "APPENDIX 1." IN THE MEMORANDUM,
INTER ALIA, COLONEL COPELAND EXPLAINED THE CAPABILITIES OF CORKER (THE
EMPLOYEE WHO RECEIVED THE PROMOTION OVER HEFLIN), DEVOTED CONSIDERABLE
SPACE TO A DISCUSSION OF HEFLIN'S MORAL CALIBRE INCLUDING HIS ARREST
RECORD (7 ARRESTS BETWEEN FEBRUARY 6, 1965, AND MARCH 14, 1970, FOUR FOR
DRUNKENNESS, TWO FOR DRIVING WHILE INTOXICATED, AND ONE FOR RECKLESS
DRIVING), A DISCUSSION OF HEFLIN'S LEAVE RECORD INCLUDING AN ALLEGATION
THAT HEFLIN WAS CAUGHT "BIRD HUNTING" WHILE ON SICK LEAVE, AND A
CRITICISM OF THE LOCAL UNION'S LEADERSHIP FOR PROCESSING THE GRIEVANCE.
COLONEL COPELAND ADMITTED THAT HE SENT A COPY OF THE MEMORANDUM TO
LT. COL. PAGE AT THE CSMS WITH ORDERS TO POST IT ON THE EMPLOYEE'S
BULLETIN BOARD IN THE SHOP ON MARCH 25, 1970.
ACCORDING TO MAURICE BROWN, PRESIDENT OF LOCAL 1671, HE SAW PAGE POST
THE MEMORANDUM SOMETIME BEFORE NOON ON MARCH 25, 1970, AND ASKED PAGE TO
REMOVE IT. PAGE REPLIED THAT HE COULD NOT DO SO SINCE IT WAS POSTED BY
ORDER OF COLONEL COPELAND. BROWN TESTIFIED THAT HE OBSERVED A NOTE
ATTACHED TO THE MEMORANDUM INDICATING THAT IT WAS POSTED BY ORDER OF
COLONEL COPELAND. THE NEXT MORNING, MARCH 26, 1970, BROWN VISITED
GENERAL WILSON, THE ADJUTANT GENERAL, AND REQUESTED THAT COPELAND'S
MEMORANDUM BE REMOVED FROM THE BULLETIN BOARD AT CSMS. BY THE TIME
BROWN RETURNED TO THE CSMS FROM THE GENERAL'S OFFICE, HE SAW PAGE
REMOVING THE MEMORANDUM FROM THE BULLETIN BOARD.
THE RECORD INDICATES THAT MANY EMPLOYEES IN THE CSMS READ THE
MEMORANDUM WHILE IT WAS POSTED. ONE OF THE WITNESSES TESTIFIED THAT 40
OR 45 EMPLOYEES READ IT. VARIOUS WITNESSES STATED THAT THEY THOUGHT IT
WAS POSTED TO "SCARE PEOPLE OUT OF THE UNION." COMMENTS WERE MADE BY
EMPLOYEES AS THEY READ THE MEMORANDUM THAT THEY WOULD NOT FILE
GRIEVANCES IF THIS WAS HOW THE GUARD WAS GOING TO DO IT. ONE EMPLOYEE
WITNESS TESTIFIED THAT HE COMMENTED TO OTHER EMPLOYEES WHO WERE READING
THE MEMORANDUM THAT IT WAS AN ATTEMPT TO INTIMIDATE ANYONE WHO TRIED TO
FILE A GRIEVANCE.
COLONEL COPELAND TESTIFIED THAT HE POSTED THE MEMORANDUM BECAUSE
SOMEONE STARTED A RUMOR THAT HE FIRED HEFLIN BECAUSE HEFLIN FILED A
GRIEVANCE, AND HE WANTED THE EMPLOYEES TO UNDERSTAND HELFIN'S
WRONGDOINGS. ACTUALLY, ACCORDING TO COLONEL COPELAND, HEFLIN WAS FIRED
BECAUSE OF HIS DRUNKEN DRIVING RECORD WHICH COLONEL COPELAND DISCOVERED
WHEN HE OBTAINED HEFLIN'S RECORD FROM THE POLICE. COLONEL COPELAND
STATED THE DISCHARGE WAS NECESSARY BECAUSE HEFLIN LOST HIS DRIVING
LICENSE AND HIS JOB REQUIRED SOME DRIVING. OF COURSE, THIS ALLEGED
REASON FOR POSTING FAILS, ESPECIALLY IN VIEW OF COLONEL COPELAND'S
ANTI-UNION BIAS, ON VARIOUS GROUNDS. THE MOST OBVIOUS GROUND IS THAT
THE TIMING OF EVENTS MAKES IMPROBABLE COLONEL COPELAND'S ALLEGED REASON
FOR POSTING. ACCORDING TO HIS OWN TESTIMONY, HE DID NOT DISCOVER
HEFLIN'S RECORD UNTIL MARCH 24, AND DID NOT MAKE A DECISION TO FIRE
HEFLIN UNTIL THEN. COLONEL COPELAND IMMEDIATELY ON MARCH 24 PUT
HEFLIN'S ARREST RECORD IN HIS MEMORANDUM AND SENT A COPY ON THE SAME DAY
TO THE CSMS FOR POSTING. THERE WAS HARDLY TIME FOR A RUMOR TO START
BEFORE MARCH 25 THAT HEFLIN WAS FIRED FOR FILING A GRIEVANCE, SINCE
COLONEL COPELAND DID NOT MAKE A DECISION TO DISCHARGE HEFLIN UNTIL MARCH
24 WHEN HE OBTAINED HEFLIN'S ARREST RECORD. (HEFLIN WAS NOT ACTUALLY
DISCHARGED UNTIL A LATER DATE.)
INASMUCH AS COLONEL COPELAND IS A SUPERVISOR FOR THE RESPONDENT,
RESPONDENT IS RESPONSIBLE FOR HIS ACTS. THE SUCH COMMITTEE IN ITS
REPORT AND RECOMMENDATIONS ON LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE DATED AUGUST, 1969, AT PARAGRAPH C, TITLED, "STATUS OF
SUPERVISORS," CHARACTERIZED SUPERVISORS AS FOLLOWS:
WE VIEW SUPERVISORS AS PART OF MANAGEMENT, RESPONSIBLE FOR
PARTICIPATING IN AND
CONTRIBUTING TO THE FORMULATION OF AGENCY POLICIES AND PROCEDURES AND
CONTRIBUTING TO THE
NEGOTIATION OF AGREEMENTS WITH EMPLOYEES. SUPERVISORS SHOULD BE
RESPONSIBLE FOR REPRESENTING
MANAGEMENT IN THE ADMINISTRATION OF AGENCY POLICY AND
LABOR-MANAGEMENT AGREEMENTS, INCLUDING
NEGOTIATED GRIEVANCE SYSTEMS, AND FOR EXPRESSION OF MANAGEMENT
VIEWPOINTS IN DAILY
COMMUNICATION WITH EMPLOYEES. IN SHORT, THEY SHOULD BE AND ARE PART
OF AGENCY MANAGEMENT AND
SHOULD BE INTEGRATED FULLY IN THAT MANAGEMENT.
THUS, IF SUPERVISORS ARE CONSIDERED PART OF AGENCY MANAGEMENT AND ARE
RESPONSIBLE FOR EXPRESSION OF MANAGEMENT VIEWPOINTS IN DAILY
COMMUNICATION WITH EMPLOYEES, AGENCY MANAGEMENT WOULD GENERALLY BE
RESPONSIBLE FOR EXPRESSIONS BY SUPERVISORS TO EMPLOYEES CONCERNING UNION
MATTERS, WRITTEN OR ORAL.
I TURN NOW TO THE ISSUE OF WHETHER COLONEL COPELAND'S POSTED
MEMORANDUM CONSTITUTED A VIOLATION OF SECTION 19(A)(1) OF THE ORDER. IT
IS CLEAR THAT COLONEL COPELAND WAS FREE TO REPORT WHATEVER HE WISHED TO
HIS SUPERIOR, THE ADJUTANT GENERAL. HOWEVER, BY POSTING THE MEMORANDUM
ON THE BULLETIN BOARD FOR THE PERUSAL OF THE EMPLOYEES IT BECAME A
WRITTEN COMMUNICATION FROM MANAGEMENT TO THE EMPLOYEES.
SECTION 19(A)(1) OF THE ORDER MAKES IT AN UNFAIR LABOR PRACTICE FOR
AGENCY MANAGEMENT TO INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE IN
THE EXERCISE OF THE RIGHTS ASSURED BY THE ORDER. SECTION 1(A) OF THE
ORDER SETS FORTH THE RIGHTS OF EMPLOYEES. THUS, "EACH EMPLOYEE OF THE
EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT HAS THE RIGHT, FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN AND ASSIST A LABOR
ORGANIZATION OR TO REFRAIN FROM ANY SUCH ACTIVITY, AND EACH EMPLOYEE
SHALL BE PROTECTED IN THE EXERCISE OF THIS RIGHT." SECTION 1(A) ALSO
PROVIDES, "THE HEAD OF EACH AGENCY SHALL TAKE THE ACTION REQUIRED TO
ASSURE THAT EMPLOYEES IN THE AGENCY ARE APPRISED OF THEIR RIGHTS UNDER
THIS SECTION, AND THAT NO INTERFERENCE, RESTRAINT, COERCION, OR
DISCRIMINATION IS PRACTICED WITHIN HIS AGENCY TO ENCOURAGE OR DISCOURAGE
MEMBERSHIP IN A LABOR ORGANIZATION."
CERTAINLY, PROTECTED ACTIVITY FLOWING OUT OF EXCLUSIVE REPRESENTATION
BY A LABOR ORGANIZATION INCLUDES THE PROCESSING OF GRIEVANCES BY AN
EMPLOYEE WITH THE ASSISTANCE OF HIS EXCLUSIVE REPRESENTATIVE. AGENCY
INTERFERENCE WITH THE PROCESSING OF GRIEVANCES WOULD TEND TO DISCOURAGE
MEMBERSHIP IN THE UNION. THE MEMORANDUM POSTED IN THIS CASE LAID BARE
TO HIS FELLOW EMPLOYEES HEFLIN'S LEAVE RECORDS, ARREST RECORD, AND
COLONEL COPELAND'S VIEW OF HEFLIN'S MORALE CALIBRE. MOREOVER, IT
CITICIZED THE LOCAL UNION LEADERSHIP FOR FILING THE GRIEVANCE. THE
WHOLE OF THE MESSAGE TO THE EMPLOYEES WAS TO INSTILL IN THEM A FEAR OF
THE ADVERSE EFFECTS OF FILING GRIEVANCES, AND TO UNDERMINE THE UNION.
IT CONSTITUTED A THREAT TO AIR BEFORE FELLOW EMPLOYEES NOT DIRECTLY
INVOLVED IN THE SPECIFIC GRIEVANCE BEING PROCESSED SUCH MATTERS AS AN
EMPLOYEE'S CAPABILITIES, SHORTCOMINGS, AND PERSONAL FRAILTIES IF HE
AND/OR HIS UNION PERSISTED IN PROCESSING A GRIEVANCE. SUCH THREAT WOULD
TEND TO CHILL THE FREEDOM OF EMPLOYEES TO FORM, JOIN, OR ASSIST LABOR
ORGANIZATIONS.
IN VIEW OF THE ABOVE, I CONCLUDE THAT THE MEMORANDUM AS POSTED ON THE
EMPLOYEE BULLETIN BOARD CONSTITUTED A VIOLATION OF SECTION 19(A)(1) OF
THE ORDER BY THE RESPONDENT.
TURNING NOW TO THE APPROPRIATE REMEDY. WHILE THE MEMORANDUM WAS ONLY
POSTED FOR A SHORT TIME, ON THE AFTERNOON OF MARCH 25, 1970, AND PART OF
THE MORNING ON MARCH 26, 1970, A LARGE NUMBER OF EMPLOYEES AT CSMS READ
THE MEMORANDUM. THERE HAVE BEEN NO ASSURANCES MADE BY THE RESPONDENT TO
THE EMPLOYEES THAT SUCH ACTION WILL NOT RECUR, AND THAT THEY NEED FEAR
NO ADVERSE PUBLICITY BY THE RESPONDENT IF THEY PROCESS GRIEVANCES.
ACCORDINGLY, I SHALL RECOMMEND TO THE ASSISTANT SECRETARY THAT HE
PROVIDE AN APPROPRIATE REMEDY.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, IT IS MY
CONSIDERED JUDGMENT THAT IT WOULD BE APPROPRIATE FOR THE ASSISTANT
SECRETARY TO ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO EFFECTUATE
THE POLICIES OF EXECUTIVE ORDER 11491.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AND SECTION
203.25(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE ARKANSAS NATIONAL
GUARD, CAMP ROBINSON, NORTH LITTLE ROCK, ARKANSAS, SHALL:
1. CEASE AND DESIST FROM:
(A) COMMUNICATING TO ANY OF ITS EMPLOYEES NOT DIRECTLY INVOLVED IN
THE PROCESSING OF A
SPECIFIC GRIEVANCE, EITHER ORALLY OR IN WRITING, DEROGATORY
INFORMATION CONCERNING A FELLOW
EMPLOYEE WHO INITIATES A GRIEVANCE PROCEEDING
(B) IN ANY LIKE, OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A) OF EXECUTIVE ORDER
11491.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) POST AT ITS FACILITIES AT CAMP ROBINSON, NORTH LITTLE ROCK,
ARKANSAS, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX 2." COPIES OF SAID NOTICE SHALL BE
SIGNED BY THE ADJUTANT
GENERAL AND SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY (60) DAYS
THEREAFTER, IN
CONSPICUOUS PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE ADJUTANT GENERAL
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN
WRITING WITHIN TEN (10) DAYS FROM THE DATE OF THIS ORDER AS TO WHAT
STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
DATED, WASHINGTON, D.C.,
APRIL 28, 1971
ARKAG (10 MAR 70) 2ND IND
SUBJECT: UNION GRIEVANCES PERTAINING TO EMPLOYEE OF LOCAL 1671
STATE MAINTENANCE OFFICER, STATE OF ARKANSAS, P O BOX 678,
NORTH LITTLE ROCK, ARKANSAS, 72115, 24 MARCH 1970
TO: THE ADJUTANT GENERAL, STATE OF ARKANSAS, P O BOX 678,
NORTH LITTLE ROCK, ARKANSAS 72115
1. I SELECTED CORKER FOR THIS PROMOTION AFTER CONSULTATION WITH LTC
PAGE BECAUSE:
A. ABILITIES. I CONSIDER CORKER JUST AS ABLE A MECHANIC AS HEFLIN
AND, IN ADDITION, IS AN EXCELLENT METAL BODY AND PAINT MAN.
B. PRODUCTIVITY (SIC)-- CORKER IS A STEADY, RELIABLE, PRODUCTIVE
WORKER AND HEFLIN SOMETIMES WORKS AND SOMETIMES LOAFS.
C. MORAL CALIBER.
2. THE ENTERTAINMENT OF THIS COMPLAINT CAUSES ME TO QUESTION THE
MOTIVES OF THE LEADERSHIP OF THE LOCAL. JUST WHAT CONSTITUTES
SENIORITY? BECAUSE OF HEFLIN'S MALINGERING, CORKER HAS ACTUALLY WORKED
MORE THAN HEFLIN. BOTH BROWN AND LONG KNEW WHEN HEFLIN WAS CAUGHT BIRD
HUNTING WHILE ON SICK LEAVE. WHAT, IF ANY, STANDARD OF PERSONAL CONDUCT
DOES THE LOCAL LEADERSHIP APPROVE? BROWN, HIMSELF, REFUSED TO TAKE
HEFLIN ON THE CMMI TEAM BECAUSE OF HEFLIN'S PERSONAL CONDUCT. LONG KNEW
OF THIS AND BOTH KNEW THAT DAVIS ASKED THAT HEFLIN NOT AGAIN BE SENT OUT
ON THE CMMI TEAM BECAUSE OF HIS MISCONDUCT WHILE ON THE ROAD. DOESN'T
THE LOCAL HAVE ANY MORAL RESPONSIBILITY TO INVESTIGATE THE VALIDITY OF A
COMPLAINT BEFORE MAKING AN APPEAL? A MOST CASUAL INVESTIGATION WOULD
HAVE REVEALED THAT HEFLIN WAS ARRESTED BY THE CIVIL AUTHORITIES AT LEAST
SIX TIMES IN THE FIVE YEARS PRECEEDING (SIC) THIS ACTION FOR DRIVING
WHILE DRUNK AND/OR PUBLIC DRUNKNESS. DOES NOT THE NECESSITY FOR
LIMITING A MAN'S WORK TO AN AREA WHERE HE HAS CONSTANT SUPERVISION LIMIT
HIS VALUE TO THE OPERATION? THE NEXT LOGICAL QUESTION IS WHY I HAVEN'T
FIRED HEFLIN BEFORE NOW. BOTH BROWN AND LONG KNOW IT HAS ALWAYS BEEN MY
POLICY TO MAKE EVERY EFFORT TO FIND SOMEWHERE IN THE OPERATION A MAN
ALREADY ON BOARD CAN BE UTILIZED, RATHER THAN FIRE HIM, WHETHER HIS
PROBLEM IS PERSONAL OR PHYSICAL. OVER THE YEARS I HAVE MADE MANY
CHANGES FOR THE CONVENIENCE OR GOOD OF THE INDIVIDUAL. I SUGGEST THAT
BROWN POLL HIS MEMBERSHIP TO SEE WHETHER THEY FEEL I SHOULD CHANGE THIS
POLICY.
3. ANSWERING SPECIFIC PARAGRAPHS OF THIS COMPLAINT:
ARKAG (10 MAR 70) 2ND IND 24 MARCH 1970
SUBJECT: UNION GRIEVANCES PERTAINING TO EMPLOYEE OF LOCAL 1671
A. PARAGRAPH 5 & 6. HOWELL, BROWN AND LONG ALL KNOW THAT
STUBBLEFIELD CANNOT TAKE SHORTHAND, AND WITH SEVEN PEOPLE TALKING THE
RESULTING LONG HAND NOTES WERE WITHOUT COHERENCE AND VALUELESS,
CONSEQUENTLY WERE SIMPLY DISCHARGED BY LTC PAGE. THEY KNEW THERE WAS NO
INTENT TO DESTROY VITAL RECORDS.
B. PARAGRAPH 9. THIS PARAGRAPH IGNORES THE FACT THAT CORKER SERVED
TWO YEARS ON ACTIVE DUTY IN THE 209 AAA BN AS A MECHANIC AND SHOP
FOREMAN. ALSO THAT CORKER WORKED AS A MECHANIC AT THE FORD MOTOR CO AT
WARREN WHERE HE RESIGNED TO FURTHER HIS EDUCATION. HOWELL, LONG AND
BROWN ARE ALL AWARE THAT THERE HAVE BEEN FREQUENT CHANGES OF PERSONNEL
BECAUSE OF BUREAU JOB AUTHORIZATIONS. PAYROLLS REVEAL THAT CORKER'S PAY
FIRST EQUALED HEFLIN'S ON 7/1/54. AND (SIC) THAT HE WAS FIRST
CLASSIFIED AS A MECHANIC ON 11/1/51.
C. PARAGRAPH 12. THIS STATEMENT IS A DELIBERATE MIS-STATEMENT (SIC)
OF THE FACTS. AN ANALYSIS OF LEAVE RECORDS REVEAL THAT HEFLIN HAS MORE
PAID SICK LEAVE THAN ANY MAN WHO HAS EVER WORKED IN THE SHOP. HIS
ANNUAL AVERAGE IS 96 HOURS PER YEAR, THE NEAREST TO HIM IS LONG WITH AN
AVERAGE OF 82 HOURS PER YEAR. THE AVERAGE SICK LEAVE TAKEN BY SHOP
PERSONNEL IS ABOUT 45 HOURS PER YEAR.
D. PARAGRAPH 13. AS INDICATED PREVIOUSLY, IT WAS NOT NECESSARY TO
WAIVE ANY QUALIFICATIONS FOR CORKER. HE POSSESSES SEVERAL IMPORTANT
QUALIFICATIONS HEFLIN DOES NOT HAVE.
4. FOR YOUR CONSIDERATION, LISTED IS HEFLIN'S POLICE RECORD FOR THE
LAST FIVE YEARS, AS REFLECTED BY THE RECORDS OF THE NORTH LITTLE ROCK
POLICE DEPARTMENT AND THE ARKANSAS STATE POLICE DEPARTMENT.
2/6/65 DRIVING WHILE INTOXICATED
10/16/65 DRUNK
11/11/65 DRUNK
5/27/68 RECKLESS DRIVING
2/15/69 DRUNK
10/4/69 DRIVING WHILE INTOXICATED
3/14/70 DRUNK
WE WILL NOT COMMUNICATE TO ANY OF OUR EMPLOYEES NOT DIRECTLY INVOLVED
IN THE PROCESSING OF A SPECIFIC GRIEVANCE, EITHER ORALLY OR IN WRITING,
DEROGATORY INFORMATION CONCERNING A FELLOW EMPLOYEE WHO INITIATES A
GRIEVANCE PROCEEDING.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
SECTION 1(A) OF EXECUTIVE ORDER 11491.
DATED BY
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR WHOSE ADDRESS IS 2511 FEDERAL OFFICE
BUILDING, 911 WALNUT STREET, KANSAS CITY, MISSOURI 64106.
/1/ THE COMPLAINT ALLEGES VIOLATIONS OF SECTION 19, SUBSECTIONS
(A)(1) AND (4) OF THE ORDER. THIS COMPLAINT, AS WELL AS SUBSEQUENT
AMENDED COMPLAINTS, WAS DISMISSED BY THE REGIONAL ADMINISTRATOR. UPON A
REQUEST FOR REVIEW FILED WITH THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS (HEREIN CALLED THE ASSISTANT SECRETARY)
PURSUANT TO SEC. 203.7(C) OF THE RULES AND REGULATIONS, THE ASSISTANT
SECRETARY REMANDED THE CASE TO THE REGIONAL ADMINISTRATOR FOR
DISPOSITION OF AN ALLEGATION OF A VIOLATION OF SECTION 19(A)(1) OF THE
ORDER BY RESPONDENT'S POSTING OF A DOCUMENT ON A BULLETIN BOARD, WHICH
IS THE SUBJECT OF THIS PROCEEDING.
2. NO BRIEFS WERE FILED BY EITHER PARTY.
/3/ NO CONTENTION WAS MADE THAT THE ALLEGED VIOLATION OF SECTION 19
(A)(1) OF THE ORDER IS SUBJECT TO AN ESTABLISHED GRIEVANCE OR APPEALS
PROCEDURE WHICH WOULD MAKE SUCH PROCEDURE THE EXCLUSIVE PROCEDURE FOR
RESOLVING THE COMPLAINT UNDER SECTION 19(D) OR THE ORDER. CF. REPORT
ON A DECISION OF THE ASSISTANT SECRETARY PURSUANT TO SECTION 6 OF
EXECUTIVE ORDER 11498, REPORT NO. 25, MARCH 1, 1971.
/4/ AS FURTHER EVIDENCE OF COLONEL COPELAND'S ANTI-UNION BIAS,
COMPLAINANT WITNESSES TESTIFIED THAT HE MADE AN ANTI-UNION SPEECH TO THE
EMPLOYEES IN DECEMBER, 1969. COLONEL COPELAND DID NOT DENY THAT HE MADE
THE SPEECH, BUT DENIED THAT HE MADE CERTAIN ALLEGED STATEMENTS.
/5/ THE ADJUTANT GENERAL OF THE STATE OF ARKANSAS AT THE TIME OF THE
ALLEGED UNFAIR LABOR PRACTICE WAS MAJOR GENERAL CHARLES WILSON. GENERAL
WILSON WAS REPLACED BY GENERAL THOMAS M. PHILLIPS IN EARLY 1971.
1 A/SLMR 52; P. 269; CASE NOS. 50-4550, 50-4570; JUNE 7, 1971.
INTERNAL REVENUE SERVICE,
INDIANAPOLIS DISTRICT
A/SLMR NO. 52
THIS CASE INVOLVED REPRESENTATION PETITIONS BY THE NATIONAL
ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, CHAPTER 49 (NAIRE) AND THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1008 AFL-CIO (AFGE).
NAIRE SOUGHT A UNIT OF PROFESSIONAL AND NONPROFESSIONAL NONSUPERVISORY
EMPLOYEES OF THE INTERNAL REVENUE SERVICE, INDIANAPOLIS DISTRICT. THE
AFGE SOUGHT A UNIT OF ALL EMPLOYEES IN THE ACTIVITY'S GARY, HAMMOND AND
MICHIGAN CITY, INDIANA OFFICES.
THE ASSISTANT SECRETARY FOUND THAT A UNIT COMPOSED SOLELY OF
EMPLOYEES LOCATED IN THE ACTIVITY'S GARY, HAMMOND AND MICHIGAN CITY,
INDIANA OFFICES, AS PROPOSED BY THE AFGE, WAS NOT APPROPRIATE FOR THE
PURPOSE OR EXCLUSIVE RECOGNITION. IN THIS REGARD, HE NOTED WHILE THESE
THREE OFFICES HAVE SOME GEOGRAPHIC PROXIMITY TO EACH OTHER, THEY ARE
ALSO QUITE CLOSE TO OTHER OFFICES ENCOMPASSED BY THE INDIANAPOLIS
DISTRICT. FURTHER, EMPLOYEES IN THESE OFFICES SHARE COMMON SUPERVISION,
WORKING CONDITIONS AND JOB QUALIFICATIONS, DUTIES AND RESPONSIBILITIES
WITH OTHER DISTRICT EMPLOYEES AND THERE WAS EVIDENCE OF ON-THE-JOB
CONTACT AND TRANSFER WITHIN THE DISTRICT. ACCORDINGLY HE DIRECTED THAT
THE AFGE'S PETITION BE DISMISSED.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE DISTRICT-WIDE UNIT
PETITIONED FOR BY THE NAIRE WAS APPROPRIATE. IN REACHING THIS
CONCLUSION, HE NOTED PARTICULARLY THE UNIFORM PERSONNEL PRACTICES AND
POLICIES WITHIN THE DISTRICT AND THE FACT THAT THERE WAS NO VARIATION IN
THE QUALIFICATIONS FOR EMPLOYMENT OR THE WORK TO BE PERFORMED IN THE
RESPECTIVE JOB CLASSIFICATIONS THROUGHOUT THE DISTRICT. THE ASSISTANT
SECRETARY ALSO NOTED THAT FACT THAT PROMOTIONAL OPPORTUNITIES WERE
AVAILABLE ON A DISTRICT-WIDE BASIS AND THAT THERE WAS A SUBSTANTIAL
INTERRELATIONSHIP BETWEEN EMPLOYEES IN MANY OF THE JOB CLASSIFICATIONS
WITHIN THE DISTRICT. IN THESE CIRCUMSTANCES, AND BECAUSE, IN HIS VIEW,
SUCH A COMPREHENSIVE UNIT WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY DIRECTED THAT
AN ELECTION BE CONDUCTED IN THE UNIT PETITIONED FOR BY THE NAIRE WITH
PROFESSIONAL EMPLOYEES BEING ACCORDED A SELF-DETERMINATION ELECTION
BEFORE BEING INCLUDED IN A UNIT WITH NONPROFESSIONALS.
INTERNAL REVENUE SERVICE,
INDIANAPOLIS DISTRICT
AND
NATIONAL ASSOCIATION OF INTERNAL
REVENUE EMPLOYEES, CHAPTER 49,
AFFILIATED WITH THE NATIONAL
ASSOCIATION OF INTERNAL REVENUE
EMPLOYEES /1/
INTERNAL REVENUE SERVICE,
INDIANAPOLIS DISTRICT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1008, AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER JOHN R. LUND. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING THE BRIEFS, FILED
HEREIN, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 50-4550, PETITIONER, NATIONAL ASSOCIATION OF INTERNAL
REVENUE EMPLOYEES, CHAPTER 49, AFFILIATED WITH THE NATIONAL ASSOCIATION
OF INTERNAL REVENUE EMPLOYEES, HEREIN CALLED NAIRE, SEEKS AN ELECTION IN
A UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL NONSUPERVISORY EMPLOYEES
OF THE INTERNAL REVENUE SERVICE OF THE DISTRICT OF INDIANAPOLIS. IN
CASE NO. 50-4570, PETITIONER, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1008, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN
A UNIT OF ALL EMPLOYEES, INCLUDING PROFESSIONAL EMPLOYEES, IN THE GARY,
MICHIGAN CITY AND HAMMOND, INDIANA OFFICES OF THE ACTIVITY. /2/ THE
ACTIVITY CONTENDS THAT THE "DISTRICT-WIDE" UNIT SOUGHT BY NAIRE IS
APPROPRIATE. ON THE OTHER HAND, IT ASSERTS THAT THE EMPLOYEES SOUGHT BY
THE AFGE DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE FROM OTHER DISTRICT EMPLOYEES AND THAT SUCH A UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE ACTIVITY IS ORGANIZED UNDER THE ADMINISTRATION OF THE DISTRICT
DIRECTOR AND HIS ASSISTANT. IT IS COMPOSED OF A HEADQUARTERS, LOCATED
IN INDIANAPOLIS, INDIANA, SIX ZONE OFFICES AND TWELVE LOCAL OFFICES
THROUGHOUT THE STATE OF INDIANA. /3/ THE INDIANAPOLIS DISTRICT CONSISTS
OF APPROXIMATELY 610 EMPLOYEES. /4/ THE RECORD DOES NOT DISCLOSE HOW
MANY PROFESSIONAL OR NONPROFESSIONAL EMPLOYEES ARE EMPLOYED IN THE
DISTRICT AND, EMPLOYEES SHOULD BE CLASSIFIED AS PROFESSIONAL OR
NONPROFESSIONAL.
GENERAL RESPONSIBILITY FOR THE ADMINISTRATION OF THE ENTIRE DISTRICT
OPERATION RESTS WITH THE DISTRICT DIRECTOR AND HIS ASSISTANT. AT
HEADQUARTERS, THERE ARE FOUR DIVISIONS, I.E., COLLECTION, AUDIT,
INTELLIGENCE, AND ADMINISTRATIVE. THE ADMINISTRATIVE DIVISION CONTAINS
THE PERSONNEL UNIT, WHICH HANDLES ALL PERSONNEL MATTERS FOR THE ENTIRE
INDIANAPOLIS DISTRICT, AND THE TRAINING AND FACILITIES BRANCHES, WHICH
PROVIDE TRAINING SUPPORT AND FACILITIES AND EQUIPMENT RESPECTIVELY FOR
THE ENTIRE DISTRICT. THE COLLECTION DIVISION IS CHARGED WITH THE
RESPONSIBILITY FOR COLLECTING DELINQUENT TAX ACCOUNTS AND SECURING
DELINQUENT RETURNS AS WELL AS PROVIDING SUCH TAXPAYER SERVICES AS THE
PREPARATION OF RETURNS AND THE ADJUSTING OF TAX ACCOUNTS. THE AUDIT
DIVISION IS INVOLVED WITH THE EXAMINATION OF INCOME, ESTATE, GIFT,
EMPLOYMENT AND EXCISE TAX RETURNS FOR THE PURPOSE OF DETERMINING THE
CORRECT LIABILITY OF THOSE TAXPAYERS WHOSE RETURNS THEY EXAMINE. THE
INTELLIGENCE DIVISION EXAMINES CASES OF SUSPECTED FRAUD. THE SIX ZONE
OFFICES LOCATED THROUGHOUT THE STATE OF INDIANA EACH PERFORM COLLECTION,
AUDIT AND INTELLIGENCE FUNCTIONS. THE LOCAL OFFICES IN MANY INSTANCES
PERFORM THE SAME FUNCTIONS AS THE ZONE OFFICES BUT THEY MAINTAIN SMALLER
STAFFS.
THE RECORD DISCLOSES THAT ALTHOUGH THE ACTIVITY'S FACILITIES
THROUGHOUT THE DISTRICT ARE SEPARATED GEOGRAPHICALLY FROM ITS
HEADQUARTERS, SUPERVISION OF EMPLOYEES ASSIGNED TO OUTLYING DUTY POSTS
AS WELL AS HEADQUARTERS IS MAINTAINED THROUGH A CHAIN OF SUPERVISION
WHICH BEGINS WITH THE DISTRICT DIRECTOR AT HEADQUARTERS. HE HAS THE
AUTHORITY TO HIRE AND FIRE, TO PROMOTE AND DEMOTE, TO APPROVE OVERTIME
COMPENSATION AND TO TRANSFER AND REASSIGN ALL DISTRICT EMPLOYEES. HE
ALSO IS AUTHORIZED TO DEAL WITH REPRESENTATIVES OF LABOR ORGANIZATIONS.
THE DISTRICT'S PERSONNEL PRACTICES AND POLICIES APPLY EQUALLY TO ALL
EMPLOYEES ON A DISTRICT-WIDE BASIS. THUS, UP TO THE JOURNEYMAN GS-13
LEVEL, AUTOMATIC CONSIDERATION FOR PROMOTION IS ON A DISTRICT-WIDE BASIS
AND EMPLOYEES IN ONE JOB CLASSIFICATION MAY COMPETE FOR JOBS IN ANOTHER
CLASSIFICATION. IN THIS RESPECT, THERE IS EVIDENCE OF TRANSFERS BETWEEN
HEADQUARTERS AND FIELD PERSONNEL.
THE QUALIFICATIONS, DUTIES AND RESPONSIBILITIES OF DISTRICT EMPLOYEES
IN THE SAME CLASSIFICATION AND GRADE LEVEL ARE SIMILAR THROUGHOUT THE
DISTRICT. IN THIS REGARD, THE RECORD SHOWS THAT CERTAIN KEY
OCCUPATIONAL GROUPS SUCH AS INTERNAL REVENUE AGENTS, REVENUE OFFICERS
AND TAX AUDITORS ARE COVERED BY STANDARD POSITION DESCRIPTIONS. THE
EVIDENCE REVEALS THAT THE REVENUE AGENTS CONDUCT EXAMINATIONS OF TAX
RETURNS AND WRITE REPORTS; THE REVENUE OFFICERS ACT AS COLLECTION
OFFICERS PREPARING TAX LIENS AND COLLECTING DELINQUENT TAXES; AND THE
AUDITORS ARE RESPONSIBLE FOR OFFICE AUDIT FUNCTIONS.
THE EVIDENCE ESTABLISHES THAT OTHER CLASSIFICATIONS OF EMPLOYEES
THROUGHOUT THE DISTRICT ARE REQUIRED TO HAVE SIMILAR QUALIFICATIONS
BASED ON THE CLASSIFICATION INVOLVED, THAT THEY PERFORM SIMILAR WORK AND
HAVE SUBSTANTIAL CONTACTS WITH OTHER EMPLOYEES. IN THIS REGARD, THE
RECORD SHOWS THAT THE SAME TECHNICAL RULES, PRACTICES AND PROCEDURES
APPLY TO ALL EMPLOYEES THROUGHOUT THE DISTRICT. WITH RESPECT TO THE
SIMILARITY OF WORK, THE EVIDENCE REVEALS THAT THERE IS A CLOSE WORKING
RELATIONSHIP BETWEEN MOST CLASSIFICATIONS WITHIN THE DISTRICT. THUS IN
MANY INSTANCES, REVENUE AGENTS, COLLECTION OFFICERS, AND SPECIAL AGENTS
WORK TOGETHER ON THE SAME CASE. ALSO, REVENUE ENGINEERS ASSIST REVENUE
AGENTS IF ANY ENGINEERING FEATURES ARE INVOLVED IN AN AUDIT EXAMINATION
AND REVENUE AGENTS HAVE DIRECT CONTACT WITH EMPLOYEES IN THE SPECIAL
PROCEDURES SECTION IN CONNECTION WITH DELINQUENT ACCOUNTS. FURTHER,
BECAUSE THEIR WORK IS SIMILAR, REVENUE AGENTS AND TAX AUDITORS HAVE
TRAINING ON A JOINT BASIS, AND ARE FREQUENTLY DETAILED FROM ONE POST OF
DUTY TO ANOTHER WITHIN THE DISTRICT.
AS NOTED ABOVE, THE AFGE SEEKS A UNIT LIMITED TO THE EMPLOYEES IN THE
ACTIVITY'S GARY, INDIANA ZONE OFFICE AND MICHIGAN CITY AND HAMMOND,
INDIANA LOCAL OFFICES. WHILE NOT DISPUTING THE ABOVE-DISCUSSED FACTORS
OF COMMUNITY OF INTEREST AS THEY RELATE TO ALL INDIANAPOLIS DISTRICT
EMPLOYEES, THE AFGE CONTENDS THAT THE EMPLOYEES IN THE THREE OFFICES
COVERED BY THEIR PETITION HAVE A SEPARATE AND IDENTIFIABLE COMMUNITY OF
INTEREST ARISING FROM THEIR GEOGRAPHIC PROXIMITY TO EACH OTHER AND TO
THE METROPOLITAN CHICAGO, ILLINOIS AREA. THE AFGE ARGUES THAT EACH
ORGANIZATIONAL OFFICE IS SELF-CONTAINED IN THAT THERE IS A SEPARATE
OFFICE SUPERVISORY STRUCTURE AND EMPLOYEES WITHIN THE OFFICE PERFORM
RELATED FUNCTIONS. FURTHER, IT IS ASSERTED THAT THE EMPLOYEES LOCATED
IN GARY, MICHIGAN CITY AND HAMMOND DEAL WITH COMMON PROBLEMS AND COULD
ACHIEVE EFFECTIVE REPRESENTATION BY BEING GROUPED IN A UNIT RATHER THAN
BEING GROUPED WITH SUCH EMPLOYEES AS THOSE STATIONED AT THE HEADQUARTERS
SOME 180 MILES AWAY.
WITH RESPECT TO THE CONTENTION RELATED TO GEOGRAPHIC PROXIMITY, THE
RECORD REFLECTS THAT GARY AND HAMMOND ARE ADJACENT COMMUNITIES, WHILE
MICHIGAN CITY IS SOME DISTANCE AWAY. /5/ AS TO THE CONTENTION THAT
COMMUNITY OF INTEREST ARISES FROM A PROXIMITY TO THE CHICAGO, ILLINOIS
METROPOLITAN AREA, THE RECORD DOES NOT DISCLOSE THAT THIS RESULTS IN ANY
SUBSTANTIVE DISTINCTION BETWEEN THE TYPE OF WORK PERFORMED BY THOSE
EMPLOYEES IN THE UNIT SOUGHT BY THE AFGE AS OPPOSED TO EMPLOYEES IN
OTHER ZONE AND LOCAL OFFICES IN THE INDIANAPOLIS DISTRICT.
IN REGARD TO SUPERVISORY STRUCTURE, AS NOTED ABOVE THE RECORD REVEALS
THAT THE ACTIVITY HAS A CENTRALIZED ADMINISTRATIVE AND SUPERVISORY
STRUCTURE FOR ALL OF THE DISTRICT'S EMPLOYEES. CONTRARY TO THE
CONTENTION OF THE AFGE, THE RECORD DOES NOT REFLECT THAT THERE IS
SUPERVISORY HIERARCHY LIMITED TO THE SPECIFIC OFFICES COVERED BY THE
AFGE'S PETITION. RATHER, IT APPEARS THAT CERTAIN EMPLOYEES IN THOSE
THREE OFFICES GET "FIRST LINE" SUPERVISION FROM THE INDIANAPOLIS
HEADQUARTERS AND THAT SOME OF THE EMPLOYEES STATIONED IN MICHIGAN CITY
ARE SUPERVISED BY PERSONS LOCATED IN THE SOUTH BEND ZONE OFFICE.
THERE IS NO CONTENTION THAT EMPLOYEES IN THE GARY, HAMMOND AND
MICHIGAN CITY OFFICES HAVE CONDITIONS OF EMPLOYMENT WHICH VARY FROM
THOSE OF ALL OTHER EMPLOYEES IN THE INDIANAPOLIS DISTRICT. EMPLOYEES IN
THESE THREE OFFICES HAVE THE SAME QUALIFICATIONS, DUTIES AND
RESPONSIBILITIES OF ALL DISTRICT EMPLOYEES IN THE SAME CLASSIFICATION
AND GRADE LEVEL. MOREOVER, EMPLOYEES COVERED BY THE AFGE'S PETITION
HAVE FREQUENT CONTACT WITH OTHER DISTRICT EMPLOYEES AND ARE SUBJECT TO
BEING DETAILED TO OTHER DISTRICT OFFICES. IN ADDITION, PROMOTIONAL
OPPORTUNITIES ARE AVAILABLE ON A DISTRICT-WIDE BASIS.
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE AFGE
COVERING ALL EMPLOYEES IN THE GARY, HAMMOND AND MICHIGAN CITY, INDIANA
OFFICES IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION,
NOTING PARTICULARLY THE COMMONALITY OF WORKING CONDITIONS, JOB FUNCTIONS
AND SKILLS, AND SUPERVISION THROUGHOUT THE DISTRICT. MOREOVER, I FIND
THAT THE RECORD DOES NOT ESTABLISH THAT A UNIT MADE UP OF THE THREE
OFFICES COVERED BY THE AFGE'S PETITION, WHICH ARE ONLY A SMALL SEGMENT
OF THE ACTIVITY'S ADMINISTRATIVE GROUPING, WOULD PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF ITS OPERATIONS.
I ALSO FIND, BASED ON THE FOREGOING, THAT A DISTRICT-WIDE UNIT OF
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, AS PROPOSED BY THE NAIRE, IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. AS NOTED ABOVE,
THE RECORD REVEALS THAT ALL CLASSIFICATIONS WITHIN THE DISTRICT ARE
COVERED BY CENTRALIZED PERSONNEL PRACTICES AND POLICIES AND THERE ARE NO
VARIATIONS IN THE QUALIFICATIONS FOR EMPLOYMENT OR THE WORK TO BE
PERFORMED IN THE RESPECTIVE JOB CLASSIFICATIONS THROUGHOUT THE DISTRICT.
PROMOTIONAL OPPORTUNITIES ARE ON DISTRICT-WIDE BASIS AND THE EVIDENCE
REVEALS THAT THERE IS SUBSTANTIAL ON-THE-JOB CONTACT BETWEEN EMPLOYEES
WITHIN THE DISTRICT AS WELL AS INTRA-DISTRICT TRANSFERS. IN THESE
CIRCUMSTANCES, I FIND THAT THERE IS A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST AMONG THE EMPLOYEES PETITIONED FOR BY THE NAIRE. MOREOVER,
SUCH A COMPREHENSIVE UNIT WILL, IN MY VIEW, PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. /6/
I FIND THAT THE FOLLOWING EMPLOYEES OF THE ACTIVITY MAY CONSTITUTE A
UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
EXECUTIVE ORDER 11491:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE INTERNAL
REVENUE SERVICE OF THE
INDIANAPOLIS, INDIANA DISTRICT, EXCLUDING ALL EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER. /7/
AS STATED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. HOWEVER, THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION
10(B)(4) OF THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT
WITH EMPLOYEES WHO ARE NOT PROFESSIONAL UNLESS A MAJORITY OF THE
PROFESSIONAL EMPLOYEES VOTE FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY,
THE DESIRES OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE
SERVICE OF THE INDIANAPOLIS, INDIANA DISTRICT, EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES, ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL EMPLOYEES OF THE INTERNAL REVENUE SERVICE OF
THE INDIANAPOLIS, INDIANA DISTRICT, EXCLUDING PROFESSIONAL EMPLOYEES,
ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE NAIRE. /8/
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE NAIRE. IN THE EVENT THAT A
MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR OF
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF
VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING GROUP (B).
IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A)
ARE CAST AGAINST INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL
EMPLOYEES, THEY WILL BE TAKEN TO HAVE INDICATED THEIR DESIRE TO
CONSTITUTE A SEPARATE UNIT, AND AN APPROPRIATE CERTIFICATION WILL BE
ISSUED INDICATING WHETHER OR NOT THE NAIRE WAS SELECTED BY THE
PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE INTERNAL
REVENUE SERVICE,
INDIANAPOLIS, INDIANA DISTRICT, EXCLUDING ALL EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL EMPLOYEES OF THE INTERNAL REVENUE SERVICE, INDIANAPOLIS,
INDIANA DISTRICT EXCLUDING
ALL PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER.
(B) ALL PROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE SERVICE,
INDIANAPOLIS, INDIANA
DISTRICT EXCLUDING ALL NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 50-4570 BE,
AND IT HEREBY IS, DISMISSED.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE, SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY
DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, CHAPTER 49,
AFFILIATED WITH THE NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES.
DATED, WASHINGTON, D.C.
JUNE 7, 1971
/1/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/2/ WHILE THE RECORD CONTAINS REFERENCES TO ACTIVITY CONTENTIONS THAT
CERTAIN EMPLOYEES IN THE UNITS SOUGHT BY THE NAIRE AND THE AFGE ARE
PROFESSIONALS WHO MUST BE ACCORDED A SELF-DETERMINATION ELECTION BEFORE
BEING INCLUDED IN A UNIT WITH NONPROFESSIONALS, THE RECORD DOES NOT SET
FORTH SUFFICIENT FACTS WITH RESPECT TO SUCH CRITERIA AS DUTIES,
TRAINING, EDUCATIONAL BACKGROUND, ETC., TO PROVIDE A BASIS FOR A FINDING
OF FACT THAT EMPLOYEES IN PARTICULAR CLASSIFICATIONS ARE PROFESSIONALS.
ACCORDINGLY, I WILL MAKE NO FINDINGS AS TO WHICH EMPLOYEE
CLASSIFICATIONS CONSTITUTE PROFESSIONAL EMPLOYEES.
/3/ THE ZONE OFFICES ARE LOCATED IN GARY, SOUTH BEND, FORT WAYNE,
TERRE HAUTE, EVANSVILLE AND NEW ALBANY. THE LOCAL OFFICES ARE LOCATED
IN ELKHART, MARION, MUNCIE, LAFAYETTE, HAMMOND, MICHIGAN CITY, RICHMOND,
VINCENNES, BLOOMINGTON, COLUMBUS, ANDERSON, AND KOKOMO.
/4/ THE RECORD SHOWS THAT THE ZONE OFFICE CONSISTS OF THE FOLLOWING
GROUP OF EMPLOYEES: REVENUE AGENTS, REVENUE OFFICERS, MEMBERS OF THE
INTELLIGENCE DIVISION, TAXPAYER SERVICE REPRESENTATIVES, AND CLERKS.
THE LOCAL OFFICE IS COMPRISED OF REVENUE AGENTS, REVENUE OFFICERS,
TAXPAYER REPRESENTATIVES, AN OFFICE AUDITOR, AND A CLERK.
/5/ IT SHOULD BE NOTED THAT MICHIGAN CITY IS ONLY SLIGHTLY CLOSER TO
GARY THAN TO SOUTH BEND, INDIANA, WHERE A ZONE OFFICE IS LOCATED.
/6/ SEE INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, A/SLMR NO.
16.
/7/ IN ITS PETITION THE NAIRE EXCLUDED "SPECIAL AGENTS." BECAUSE THE
RECORD DOES NOT SET FORTH SUFFICIENT FACTS AS TO THIS CLASSIFICATION OF
EMPLOYEES, I SHALL MAKE NO FINDINGS AS TO WHETHER EMPLOYEES IN THIS JOB
CLASSIFICATION SHOULD BE EXCLUDED FROM THE UNIT.
/8/ AS THE AFGE'S SHOWING OF INTEREST IS INSUFFICIENT TO TREAT IT AS
AN INTERVENTOR IN CASE NO. 50-4550, I SHALL ORDER THAT ITS NAME NOT BE
PLACED ON THE BALLOT.
1 A/SLMR 51; P. 268; CASE NOS. 46-1698(CO), 46-1593(RO); JUNE 4,
1971.
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC., AFFILIATED
WITH THE NATIONAL MARINE ENGINEERS' BENEFICIAL ASSOCIATION, AFL-CIO
A/SLMR NO. 51
ON JANUARY 29, 1971, THE ASSISTANT SECRETARY ISSUED A DECISION AND
ORDER IN A/SLMR NO. 10 FINDING, AMONG OTHER THINGS, THAT PATCO-MEBA HAD
CALLED A CONTROLLERS' STRIKE, ASSISTED OR PARTICIPATED THEREIN, AND
CONDONED THE STRIKE BY FAILING TO TAKE EFFECTIVE AFFIRMATIVE ACTION TO
PREVENT OR STOP IT. AS A RESULT OF THESE ACTS, THE ASSISTANT SECRETARY
DETERMINED THAT PATCO-MEBA LOST ITS STATUS AS A LABOR ORGANIZATION
WITHIN THE MEANING OF SECTION 2(E)(2) OF EXECUTIVE ORDER 11491. IN THIS
CONNECTION, PATCO-MEBA WAS ORDERED, AMONG OTHER THINGS, TO CEASE AND
DESIST FROM CERTAIN SPECIFIED VIOLATIVE CONDUCT AND TO TAKE CERTAIN
AFFIRMATIVE ACTIONS TO EFFECTUATE THE PURPOSES AND THE PROVISIONS OF THE
EXECUTIVE ORDER. THE ASSISTANT SECRETARY PROVIDED THAT AT SUCH TIME AS
PATCO-MEBA BELIEVED IT COULD MEET THE REQUIREMENTS AS A LABOR
ORGANIZATION UNDER SECTION 2(E) OF THE EXECUTIVE ORDER, BUT IN NO EVENT
SOONER THAN THE EXPIRATION OF THE REQUIRED 60-DAY POSTING PERIOD, IT
COULD FURNISH TO HIM A SPECIFIC ACCOUNT OF THE STEPS IT HAD TAKEN TO
COMPLY WITH THE DECISION AND ORDER IN A/SLMR NO. 10.
IN A LETTER TO THE ASSISTANT SECRETARY DATED APRIL 14, 1971, THE
PRESIDENT OF PATCO-MEBA OUTLINED, IN DETAIL, THE STEPS WHICH HAD BEEN
TAKEN BY PATCO-MEBA TO COMPLY WITH THE DECISION AND ORDER IN A/SLMR NO.
10. THEREAFTER, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE)
FILED COMMENTS ON PATCO-MEBA'S SUBMISSION TO THE ASSISTANT SECRETARY
OPPOSING PATCO-MEBA'S CONTENTION THAT IT WAS IN COMPLIANCE WITH THE
PRIOR DECISION AND ORDER.
AFTER A CAREFUL REVIEW OF PATCO-MEBA'S SUBMISSION, THE RESPONSE
SUBMITTED BY THE NAGE, AND BASED UPON AN INDEPENDENT INVESTIGATION, THE
ASSISTANT SECRETARY FOUND THAT PATCO-MEBA HAD COMPLIED WITH THE DECISION
AND ORDER IN A/SLMR NO. 10. ACCORDINGLY, HE ORDERED THAT, AS OF THE
DATE OF HIS SUPPLEMENTAL DECISION AND ORDER, PATCO-MEBA BE PERMITTED TO
UTILIZE THE PROCEDURES AVAILABLE TO A LABOR ORGANIZATION WITHIN THE
MEANING OF SECTION 2(E) OF THE EXECUTIVE ORDER.
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, INC. /1/
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, INC.
AND
FEDERAL AVIATION ADMINISTRATION
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, INC.
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, INC;
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES; AIR TRAFFIC CONTROL
ASSOCIATION, INC.; NATIONAL FEDERATION
OF FEDERAL EMPLOYEES; AND
INTERNATIONAL ASSOCIATION OF MACHINISTS
& AEROSPACE WORKERS
ON JANUARY 29, 1971, I ISSUED A DECISION AND ORDER ON A/SLMR NO. 10,
INVOLVING THE ABOVE PARTIES AND FINDING, AMONG OTHER THINGS, THAT THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC. (PATCO-MEBA),
HAD CALLED A CONTROLLERS' STRIKE, ASSISTED OR PARTICIPATED THEREIN, AND
CONDONED THE STRIKE BY FAILING TO TAKE EFFECTIVE AFFIRMATIVE ACTION TO
PREVENT OR STOP IT. IN THESE CIRCUMSTANCES, I DETERMINED THAT
PATCO-MEBA LOST ITS STATUS AS A LABOR ORGANIZATION WITHIN THE MEANING OF
SECTION 2(E)(2) OF THE EXECUTIVE ORDER AND ALSO FOUND THAT PATCO-MEBA
ENGAGED IN CONDUCT WHICH WAS VIOLATIVE OF SECTION 19(B)(4) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER AND SECTION 203.25(A)
OF THE REGULATIONS, PATCO-MEBA WAS ORDERED, AMONG OTHER THINGS, TO CEASE
AND DESIST FROM CERTAIN SPECIFIED VIOLATIVE CONDUCT AND TO TAKE
AFFIRMATIVE ACTIONS TO EFFECTUATE THE PURPOSES AND THE PROVISIONS OF THE
EXECUTIVE ORDER. IT WAS PROVIDED ALSO THAT AT SUCH TIME AS PATCO-MEBA
BELIEVED IT COULD MEET THE REQUIREMENTS AS A LABOR ORGANIZATION UNDER
SECTION 2(E) OF THE EXECUTIVE ORDER, BUT IN NO EVENT SOONER THAN THE
EXPIRATION OF THE 60-DAY POSTING PERIOD, IT COULD FURNISH TO THE
ASSISTANT SECRETARY A SPECIFIC ACCOUNT, IN WRITING, OF THE STEPS IT HAD
TAKEN TO COMPLY WITH THE DECISION AND ORDER IN A/SLMR NO. 10 AS WELL AS
STEPS IT HAD TAKEN TO INSURE FUTURE COMPLIANCE WITH EXECUTIVE ORDER
11491 AND THE REGULATIONS PERTAINING THERETO. IN THIS CONNECTION,
PATCO-MEBA WAS REQUIRED TO SERVE COPIES OF SUCH ACCOUNT SIMULTANEOUSLY
UPON ALL OTHER PARTIES TO THE PROCEEDING AND IT WAS PROVIDED THAT THESE
OTHER PARTIES WOULD HAVE FIVE DAYS FROM SERVICE OF PATCO-MEBA'S ACCOUNT
WITHIN WHICH TO FILE COMMENTS WITH THE ASSISTANT SECRETARY.
IN A LETTER TO THE ASSISTANT SECRETARY DATED APRIL 14, 1971, THE
PRESIDENT OF PATCO-MEBA OUTLINED, IN DETAIL, THE STEPS WHICH HAD BEEN
TAKEN BY PATCO-MEBA TO COMPLY WITH THE DECISION AND ORDER IN A/SLMR NO.
10. THEREAFTER, IN A LETTER DATED APRIL 23, 1971, THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) FILED COMMENTS ON
PATCO-MEBA'S ACCOUNT OPPOSING THE LATTER'S VIEW THAT IT HAD COMPLIED
WITH THE PRIOR DECISION AND ORDER. /2/
AFTER A CAREFUL REVIEW OF PATCO-MEBA'S SUBMISSION PURSUANT TO THE
DECISION AND ORDER IN A/SLMR NO. 10, THE RESPONSE SUBMITTED BY THE NAGE,
AND BASED UPON AN INDEPENDENT INVESTIGATION, I FIND THAT PATCO-MEBA HAS
COMPLIED WITH THE DECISION AND ORDER IN A/SLMR NO. 10 AND ALSO HAS TAKEN
STEPS TO INSURE FUTURE COMPLIANCE WITH EXECUTIVE ORDER 11491 AND THE
REGULATIONS PERTAINING THERETO.
ACCORDINGLY, PATCO-MEBA, AS OF THE DATE OF THIS SUPPLEMENTAL DECISION
AND ORDER, SHALL BE PERMITTED TO UTILIZE THE PROCEDURES AVAILABLE TO A
LABOR ORGANIZATION WITHIN THE MEANING OF SECTION 2(E) OF EXECUTIVE ORDER
11491.
DATED, WASHINGTON, D.C.
JUNE 4, 1971
/1/ NOW AFFILIATED WITH NATIONAL MARINE ENGINEER'S BENEFICIAL
ASSOCIATION, AFL0CIO (MEBA).
/2/ NO OTHER PARTY IN THIS MATTER FILED COMMENTS.
1 A/SLMR 50; P. 265; CASE NO. 32-1571(EO); JUNE 4, 1971.
DISTRICT OF NEW JERSEY,
DELAWARE AND MARYLAND,
FARMERS HOME ADMINISTRATION,
DEPARTMENT OF AGRICULTURE
A/SLMR NO. 50
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2831, (AFGE) SOUGHT TO REPRESENT A UNIT OF ALL EMPLOYEES OF THE
ACTIVITY, INCLUDING 26 AGRICULTURAL MANAGEMENT SPECIALISTS, ALSO
DESIGNATED "COUNTY SUPERVISORS." THE ACTIVITY AGREED TO THE
APPROPRIATIONS OF THE UNIT SOUGHT, BUT URGED THAT COUNTY SUPERVISORS BE
EXCLUDED AS BEING SUPERVISORS WITHIN THE MEANING OF THE ORDER.
THE ASSISTANT SECRETARY CONCLUDED THAT THE CLASSIFICATION OF COUNTY
SUPERVISOR SHOULD BE EXCLUDED FROM THE UNIT BASED UPON HIS BEING
RESPONSIBLE FOR DIRECTING THE WORK IN HIS PARTICULAR OFFICE; APPROVING
TIME AND ATTENDANCE REPORTS, LEAVE AND VACATION SCHEDULES; AND
PREPARING WRITTEN APPRAISALS OF PROBATIONARY EMPLOYEES WITH
RECOMMENDATIONS AS TO RETENTION. IT WAS ALSO NOTED THAT THE COUNTY
SUPERVISOR IS RESPONSIBLE FOR PERFORMANCE EVALUATIONS AND CERTIFYING AS
TO THE ACCEPTABLE LEVEL OF COMPETENCE OF EMPLOYEES FOR WITHIN-GRADE
INCREASES AND THAT THERE IS A WIDE DISPERSION OF THE COUNTY OFFICERS
THROUGHOUT THE THREE-STATE AREA. IN ADDITION, COUNTY SUPERVISORS WERE
FOUND TO BE SUBJECT TO MINIMAL IMMEDIATE SUPERVISION IN VIEW OF THE
INFREQUENT VISITS TO THE COUNTY OFFICES BY THE STATE DIRECTOR AND THEIR
DISTRICT SUPERVISOR.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DIRECTED THAT AN
ELECTION BE HELD IN THE PETITIONED UNIT EXCLUDING THE EMPLOYEES
CLASSIFIED AS COUNTY SUPERVISORS.
DISTRICT OF NEW JERSEY,
DELAWARE AND MARYLAND,
FARMERS HOME ADMINISTRATION,
DEPARTMENT OF AGRICULTURE
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2831
UPON A PETITION DULY FILED UNDER SECTION 6 OF SECTION 6 OF EXECUTIVE
ORDER 11491, A HEARING WAS HELD BEFORE HEARING OFFICER CLARENCE RANSOME.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2831, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL EMPLOYEES OF THE DISTRICT OF NEW JERSEY, DELAWARE AND M RYLAND,
FARMERS HOME ADMINISTRATION, EXCLUDING STATE DIRECTOR, ADMINISTRATIVE
ASSISTANT, REAL ESTATE OFFICERS, COMMUNITY SERVICE OFFICER, CHIEF
ENGINEER, DISTRICT SUPERVISORS, LOAN CHIEF, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, PROFESSIONAL EMPLOYEES, SUPERVISORS AND GUARDS. THE PARTIES
ARE IN AGREEMENT THAT THE UNIT AS DEFINED IS APPROPRIATE EXCEPT THAT THE
ACTIVITY WOULD EXCLUDE AGRICULTURAL MANAGEMENT SPECIALISTS ON THE BASIS
THAT THEY ARE SUPERVISORS WITHIN THE MEANING OF THE ORDER. /1/
THE ACTIVITY INVOLVED HEREIN, THE DISTRICT OF NEW JERSEY, DELAWARE
AND MARYLAND, FARMERS HOME ADMINISTRATION, IS UNDER THE DIRECTION OF A
STATE DIRECTOR LOCATED IN TRENTON, NEW JERSEY. THERE ARE THREE DISTRICT
OFFICES AND TWENTY-SIX COUNTY OFFICES LOCATED THROUGHOUT THE THREE-STATE
AREA. THE ACTIVITY HAS A COMPLEMENT OF APPROXIMATELY 133 EMPLOYEES OF
WHICH ALL BUT THREE ARE PAID BY THE FARMERS HOME ADMINISTRATION (FHA).
/2/ WORKING UNDER THE STATE DIRECTOR ARE THREE DISTRICT SUPERVISORS AND
TWENTY-SIX COUNTY SUPERVISORS. AT A MINIMUM, A COUNTY OFFICE IS STAFFED
WITH A COUNTY SUPERVISOR AND A COUNTY CLERK. /3/
COUNTY SUPERVISORS ARE RESPONSIBLE FOR CARRYING OUT DIVERSIFIED
AGRICULTURAL AND RURAL ASSISTANCE ACTIVITIES, WHICH INCLUDE THE GRANTING
AND SERVICING OF LOANS TO BOTH INDIVIDUALS AND GROUPS. DURING FISCAL
YEAR 1970 THE COUNTY SUPERVISORS WERE RESPONSIBLE FOR APPROVING LOANS OF
OVER 35 MILLION DOLLARS /4/ AND FOR SERVICING LOANS OF APPROXIMATELY 114
MILLION DOLLARS.
THE RECORD INDICATES THAT THE COUNTY SUPERVISOR IS RESPONSIBLE FOR
DIRECTING THE WORK IN HIS PARTICULAR OFFICE AND ITS GENERAL MANAGEMENT,
INCLUDING EXERCISING DISCRETION IN DELEGATING PRESCRIBED LOAN APPROVAL
AUTHORITY TO THE ASSISTANT COUNTY SUPERVISOR. /5/ ONE COUNTY SUPERVISOR
TESTIFIED THAT HE APPROVED ALL LOANS WITHIN HIS DELEGATED AUTHORITY BUT
NO LONGER MADE HOUSING APPRAISALS, HAVING DELEGATED THIS RESPONSIBILITY
TO THE ASSISTANT COUNTY SUPERVISOR. IN ADDITION, MOST OF THE COUNTY
SUPERVISORS CONDUCT MONTHLY MEETINGS FOR THE PURPOSE OF PLANNING THE
WORK SCHEDULE FOR THE FOLLOWING MONTH. WHILE IT APPEARS THAT THE STAFF
MEMBERS COOPERATE IN CASE HANDLING TO MINIMIZE DUPLICATION OF EFFORT,
ANY CONFLICT IS RESOLVED BY THE COUNTY SUPERVISOR. HE ALSO IS
RESPONSIBLE FOR TIME AND ATTENDANCE REPORTS, APPROVING LEAVE AND
VACATION SCHEDULES AND PREPARING WRITTEN APPRAISALS OF PROBATIONARY
EMPLOYEES WITH RECOMMENDATIONS AS TO RETENTION.
THE RECORD REVEALS THAT THE COUNTY SUPERVISOR HAS THE RESPONSIBILITY
AND AUTHORITY TO EVALUATE THE PERFORMANCE OF THE EMPLOYEES UNDER HIS
SUPERVISION. HE PREPARES THE EVALUATION, WITHOUT FIRST CONSULTING WITH
THE DISTRICT SUPERVISOR OR STATE DIRECTOR. IN DISCUSSING THE EVALUATION
WITH THE PARTICULAR EMPLOYEE, ANY DISAGREEMENTS ARE RESOLVED BETWEEN THE
EMPLOYEE AND THE COUNTY SUPERVISOR, WITH THE LATTER'S DETERMINATION
CONTROLLING. THE EVALUATION FORM REQUIRES NO WRITTEN ENDORSEMENT BY A
HIGHER ACTIVITY OFFICIAL AND CONTAINS ONLY THE SIGNATURES OF THE COUNTY
SUPERVISOR AND THE EMPLOYEE CONCERNED. IN ADDITION, COUNTY SUPERVISORS
MUST CERTIFY AS TO THE ACCEPTABLE LEVEL OF COMPETENCE OF EMPLOYEES FOR
PURPOSES OF WITHIN-GRADE INCREASES (WHICH IS ALSO A FORM OF PERFORMANCE
APPRAISAL). WITHOUT THIS CERTIFICATION, AN EMPLOYEE WOULD NOT RECEIVE
HIS SCHEDULED SALARY INCREASE.
THE RECORD DEMONSTRATES THAT COUNTY SUPERVISORS, WHO ARE PRESENT IN
THE OFFICE AT LEAST HALF OF THEIR TIME, ARE SUBJECT TO MINIMAL IMMEDIATE
SUPERVISION. THUS, THE DISTRICT SUPERVISOR VISITS THE COUNTY OFFICES AN
AVERAGE OF ONCE PER MONTH AND VISITS BY THE STATE DIRECTOR AVERAGE THREE
TIMES A YEAR. THE AFGE CONTENDS THAT TO FIND THE COUNTY SUPERVISOR TO
BE A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE EXECUTIVE
ORDER, WOULD CREATE A DISPROPORTIONATE NUMBER OF SUPERVISORS TO RANK AND
FILE EMPLOYEES, PARTICULARLY IN COUNTY OFFICES WITH TWO OR THREE
EMPLOYEES, INCLUDING THE COUNTY SUPERVISOR. ON THE OTHER HAND, THE
EVIDENCE REVEALS THAT A CONTRARY FINDING WOULD RESULT IN A RATIO OF
APPROXIMATELY 30 EMPLOYEES TO ONE DISTRICT SUPERVISOR, COVERING AN AREA
OF ABOUT 8 COUNTIES.
ON THE BASIS OF THE FOREGOING, NOTING PARTICULARLY, THE COUNTY
SUPERVISOR'S RESPONSIBILITIES FOR PERFORMANCE EVALUATIONS AND
CERTIFICATION OF ACCEPTABLE LEVEL OF COMPETENCE FOR WITHIN-GRADE PAY
INCREASES, /6/ HIS DISCRETION IN DELEGATING PRESCRIBED LOAN APPROVAL
AUTHORITY, HIS EXERCISE OF INDEPENDENT JUDGMENT IN PLANNING WORK
SCHEDULES, THE INFREQUENCY OF VISITS TO THE COUNTY OFFICES BY THE
DISTRICT SUPERVISOR AND THE STATE DIRECTOR AND THE WIDE DISPERSION OF
THE COUNTY OFFICES THROUGHOUT THE TRI-STATE AREA, I FIND THAT THE
AGRICULTURAL MANAGEMENT SPECIALISTS, I.E., COUNTY SUPERVISORS, ARE
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE EXECUTIVE ORDER.
ACCORDINGLY, I SHALL EXCLUDE THIS CLASSIFICATION FROM THE UNIT FOUND
APPROPRIATE.
IN ALL THE CIRCUMSTANCES, INCLUDING THE ACTIVITY-WIDE SCOPE OF THE
UNIT SOUGHT, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF EXECUTIVE ORDER 11491:
ALL EMPLOYEES OF THE DISTRICT OF NEW JERSEY, DELAWARE AND MARYLAND,
FARMERS HOME
ADMINISTRATION, DEPARTMENT OF AGRICULTURE, EXCLUDING THE STATE
DIRECTOR, DISTRICT SUPERVISORS,
COUNTY SUPERVISORS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY
CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER. /7/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2831.
DATED, WASHINGTON, D.C.
JUNE 4, 1971
/1/ THIS LATTER CLASSIFICATION ALSO IS DESIGNATED AS COUNTY
SUPERVISOR.
/2/ THE RECORD IS UNCLEAR AS TO THE STATUS AND POSITION OF THE THREE
EMPLOYEES.
/3/ ONLY THREE OF THE COUNTY OFFICES HAVE THE MINIMUM STAFFING
PATTERN. IN ADDITION, THE MAJORITY OF THE COUNTY OFFICES ARE STAFFED
WITH AN ASSISTANT COUNTY SUPERVISOR AND/OR ASSISTANT COUNTY CLERK, AS
WELL ASA CONSTRUCTION INSPECTOR AND HOME ECONOMIST. THE SIZE OF THE
COUNTY OFFICES STAFFING PATTERNS VARIES FROM 2 TO 7 EMPLOYEES WITH AN
AVERAGE OF ABOUT 3 EMPLOYEES PER OFFICE.
/4/ APPROVAL OF A LOAN BY A COUNTY SUPERVISOR IS CONTINGENT UPON
ACCEPTANCE OF A LOAN APPLICATION BY A COUNTY ADVISORY BOARD CONSISTING
OF 3 MEMBERS. THE COUNTY SUPERVISOR INTERVIEWS NOMINEES FOR THE COUNTY
ADVISORY BOARD AND MAKES RECOMMENDATIONS TO THE STATE DIRECTOR, WHO HAS
AUTHORITY TO APPOINT ADVISOR BOARD MEMBERS.
/5/ THE STATE DIRECTOR HAS THE AUTHORITY TO APPROVE LOANS UP TO
$60,000; DISTRICT SUPERVISORS UP TO $35,000; COUNTY SUPERVISORS UP TO
$25,000; AND ASSISTANT COUNTY SUPERVISORS, GS-9 UP TO $15,000 AND
$10,000 IF GS-7.
/6/ WITH RESPECT TO THE AFGE'S CONTENTION THAT THE EVALUATION
PROCEDURE IS ROUTINE AND CLERICAL IN NATURE REQUIRING A MINIMUM AMOUNT
OF TIME, THE EVIDENCE ESTABLISHES THAT PERFORMANCE EVALUATION IS A
DAY-TO-DAY PROCESS THROUGHOUT THE YEAR REQUIRING INDEPENDENT JUDGMENT
AND CULMINATING IN THE COMPLETION OF AN ANNUAL RATING FORM.
/7/ IN ITS PETITION, THE AFGE ALSO EXCLUDED ADMINISTRATIVE ASSISTANT,
REAL ESTATE OFFICES, COMMUNITY SERVICE OFFICER, CHIEF ENGINEER AND LOAN
CHIEF. BECAUSE THE RECORD DOES NOT SET FORTH SUFFICIENT FACTS AS TO
THESE CLASSIFICATIONS OF EMPLOYEES, I SHALL MAKE NO FINDINGS AS TO
WHETHER THESE EMPLOYEES SHOULD BE EXCLUDED FROM THE UNIT.
/8/ IN VIEW OF THE FINDING HEREIN, BEFORE PROCEEDING TO AN ELECTION,
THE APPROPRIATE AREA ADMINISTRATOR IS DIRECTED TO MAKE A REDETERMINATION
OF THE SHOWING OF INTEREST USING THE SAME PAYROLL LIST AS WAS USED IN
MAKING THE ORIGINAL DETERMINATION. IN THE EVENT THAT THE SHOWING OF
INTEREST BY THE AFGE IS FOUND TO BE INSUFFICIENT, THE PETITION IN THIS
CASE SHOULD BE DISMISSED BY THE REGIONAL ADMINISTRATOR.
1 A/SLMR 49; P. 262; CASE NO. 70-1508; JUNE 2, 1971.
DEPARTMENT OF THE NAVY,
NAVAL AIR REWORK FACILITY,
ALAMEDA, CALIFORNIA
A/SLMR NO. 49
THE SUBJECT CASE, INVOLVING A PETITION FILED BY THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 2297 (IBEW), PRESENTED
THE QUESTION WHETHER A UNIT OF EMPLOYEES COMPRISING ALL THE EMPLOYEES
HOLDING ELECTRICAL RATINGS IN THE ACTIVITY'S PRODUCTION DEPARTMENT WAS
APPROPRIATE.
UNDER ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT
THE UNIT SOUGHT WAS NOT APPROPRIATE. IN THIS REGARD HE NOTED THAT THE
WORK PERFORMED BY THE EMPLOYEES IN THE UNIT SOUGHT WAS PART OF AN
OVERALL INTEGRATED PRODUCTION PROCESS REQUIRING THE COOPERATION AND
COORDINATED EFFORTS OF EMPLOYEES IN VARIOUS JOB CLASSIFICATIONS WORKING
IN A NUMBER OF FUNCTIONALLY INTERDEPENDENT SHOPS. HE ALSO NOTED THAT
MANY OF THE EMPLOYEES IN THE CLAIMED UNIT WORKED IN SHOPS CONTAINING
EMPLOYEES IN NONELECTRICAL JOB CLASSIFICATIONS; THAT OFTEN THEY WERE
NOT SUPERVISED BY ELECTRICIAN FOREMEN; THAT ON OCCASION THEY PERFORMED
NONELECTRICAL WORK; AND THAT THEY WERE ENGAGED RESPECTIVELY IN
REPETITIVE WORK INVOLVING VARIOUS SPECIALIZED AIRCRAFT COMPONENTS. IN
THESE CIRCUMSTANCES AND NOTING THAT THE EMPLOYEES IN THE CLAIMED UNIT
SHARED THE SAME GENERAL TERMS AND CONDITIONS OF EMPLOYMENT WITH OTHER
EMPLOYEES WITHIN THE PRODUCTION DEPARTMENT AND THAT THE CLAIMED UNIT
WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS, THE ASSISTANT SECRETARY ORDERED THAT THE PETITION BE
DISMISSED.
DEPARTMENT OF THE NAVY,
NAVAL AIR REWORK FACILITY,
ALAMEDA, CALIFORNIA
AND
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
LOCAL 2297 /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER HENRY C. LEE. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. PETITIONER, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO, LOCAL 2297, HEREIN REFERRED TO AS IBEW, SEEKS TO REPRESENT
EMPLOYEES IN THE UNIT OF ALL UNGRADED EMPLOYEES IN THE NAVAL AIR REWORK
FACILITY HOLDING RATINGS OF AIRCRAFT ELECTRICIAN, AIRCRAFT ELECTRICIAN
HELPER, APPRENTICE AIRCRAFT ELECTRICIAN, AIRCRAFT ELECTRICAL WORKER,
ELECTRICIAN, ELECTRICIAN HELPER AND ELECTRICIAN WORKER, BUT EXCLUDING
ALL SUPERVISORY AND MANAGERIAL PERSONNEL, TEMPORARY LIMITED EMPLOYEES,
AND EMPLOYEES ALREADY COVERED BY AN EXCLUSIVE RECOGNITION. /2/
THE ACTIVITY TAKES THE POSITION THAT THE UNIT SOUGHT BY THE IBEW IS
NOT APPROPRIATE. IT CONTENDS, AMONG OTHER THINGS, THAT THE EMPLOYEES IN
THE PETITIONED UNIT DO NOT CONSTITUTE A "TRADITIONAL" OR "RECOGNIZED"
CRAFT IN THE AIRCRAFT INDUSTRY, /3/ BUT THAT THEY ARE INSTEAD,
"PRODUCTION EMPLOYEES" ENGAGED IN THE MANUFACTURE, REPAIR AND
MODIFICATION OF THE ACTIVITY'S FINISHED PRODUCT. THE ACTIVITY FURTHER
ASSERTS THAT THE UNIT IN QUESTION IS NOT APPROPRIATE INASMUCH AS IT
WOULD NOT PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS.
THERE IS NO HISTORY OF BARGAINING WITH RESPECT TO THE EMPLOYEES
PETITIONED FOR BY THE IBEW. HOWEVER, THE ACTIVITY ACCORDED EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 10988 TO SIX LABOR ORGANIZATIONS, /4/
COMPRISING ELECTRICAL MAINTENANCE EMPLOYEES IN THE ACTIVITY'S PLANT
SERVICES DIVISION, PRODUCTION ENGINEERING DEPARTMENT.
THE NAVAL AIR REWORK FACILITY AT ALAMEDA, CALIFORNIA IS AN INDUSTRIAL
FACILITY ENGAGED IN THE PERFORMANCE OF DEPOT LEVEL MAINTENANCE FUNCTIONS
INCLUDING THE MANUFACTURE OF CERTAIN AIRCRAFT PARTS AND EQUIPMENT. THE
ACTIVITY HAS A WORK FORCE OF ABOUT 7,000 EMPLOYEES OCCUPYING NUMEROUS
BUILDINGS WITHIN THE ALAMEDA NAVAL AIR STATION. ORGANIZATIONALLY, THE
ACTIVITY COMPRISES 3 DIRECTORATES WHICH ARE SUBDIVIDED INTO 8
DEPARTMENTS, 30 DIVISIONS AND 76 BRANCHES, WHICH ARE FURTHER SUBDIVIDED
INTO SECTIONS, SHOPS AND WORK CENTERS. FUNCTIONALLY, THE ACTIVITY HAS
TWO BASIC OPERATIONS; ONE DEALING WITH "SERVICE" ACTIVITIES, WHICH
INCLUDE MANAGEMENT AND ENGINEERING SERVICES AND THE OTHER DEALING WITH
"PRODUCTION" ACTIVITIES.
AT THE TOP OF THE ADMINISTRATIVE HIERARCHY ARE THE COMMANDING OFFICER
AND THE EXECUTIVE OFFICER. BELOW THESE OFFICIALS IS THE PRODUCTION
OFFICER WHO IS RESPONSIBLE FOR THE OPERATION OF THREE DEPARTMENTS /5/,
ALL OF WHICH ARE INVOLVED DIRECTLY OR INDIRECTLY WITH THE ACTIVITY'S
PRODUCTION PROCESS.
THE EMPLOYEES IN THE PROPOSED UNIT COMPRISE ALL THE EMPLOYEES HOLDING
ELECTRICAL RATINGS IN THE PRODUCTION DEPARTMENT. /6/ THEY REPRESENT
ABOUT 8 PERCENT OF APPROXIMATELY 4,800 EMPLOYEES OF DIVERSIFIED SKILLS
AND TRADES /7/ WORKING IN A SEQUENTIAL OPERATION INVOLVING SOME 190
DIFFERENT SHOPS. THE RECORD REVEALS THAT THE EMPLOYEES IN THE
PETITIONED UNIT WORK IN ABOUT 40 OF THESE SHOPS. SUCH SHOPS ARE IN
BUILDINGS LOCATED THROUGHOUT THE NAVAL AIR STATION BUT ARE CONCENTRATED
MAINLY IN A COMPLEX OF 4 LARGE MULTI-LEVEL BUILDINGS, INCLUDING A
BUILDING AND HANGAR USED FOR ASSEMBLY-LINE OPERATIONS INVOLVING OVERHAUL
AND REWORK ON MAJOR AIRCRAFT COMPONENTS.
IN ORDER TO PERMIT THE STEADY FLOW OF WORK, THE SHOPS IN THE
PRODUCTION DEPARTMENT ARE, AS A RULE, PHYSICALLY LOCATED ACCORDING TO
FUNCTION IN LARGE UNPARTITIONED WORK AREAS. THE EMPLOYEES IN EACH OF
THE SHOPS ARE UNDER THE SUPERVISION OF A FOREMAN WHO MAY BE AN AIRCRAFT
ELECTRICIAN, AN AIRCRAFT MECHANIC, A ELECTRONICS MECHANIC, OR AN
ORDNANCE MECHANIC, ACCORDING TO THE NATURE OF THE OVERALL FUNCTION OF
THE PARTICULAR SHOP INVOLVED.
OF THE APPROXIMATELY 40 SHOPS UTILIZING ELECTRICAL SKILLS, LESS THAN
HALF HAVE A FOREMAN WHO IS AN ELECTRICIAN AND ONLY ABOUT 11 ARE MANNED
EXCLUSIVELY OR ALMOST EXCLUSIVELY BY ELECTICIANS. /8/ THE ELECTRICIANS
IN THESE SHOPS, FOR THE MOST PART, PERFORM ELECTRICAL DUTIES WHICH ARE
REPETITIVE AND INVOLVE A PARTICULAR AIRCRAFT COMPONENT. FOR EXAMPLE,
THE ELECTRICIANS ASSIGNED TO THE GENERATOR SHOP ARE INVOLVED PRIMARILY
IN A SPECIFIC JOB JUNCTION, I.E., THE DISASSEMBLY OF GENERATORS. ALSO,
THOSE ASSIGNED TO THE PROCESSING SHOP ARE ONLY REQUIRED TO EXAMINE CABLE
ASSEMBLIES AND SECURE THE NECESSARY REPLACEMENT PARTS, WHICH THEY
SUBSEQUENTLY PLACE IN A CONTAINER ALONG WITH OTHER MATERIALS FOR
EMPLOYEES WITH OTHER SKILLS TO USE IN COMPLETING THE JOB. THIS SAME
SITUATION OCCURS IN THE CABLE SHOP AND IN NUMEROUS OTHER SHOPS. BECAUSE
OF THESE FOREGOING FACTORS, THE ELECTRICIANS ASSIGNED TO THE VARIOUS
SPECIALIZED SHOPS ARE NOT READILY INTERCHANGEABLE. THIS IS PARTICULARLY
TRUE WITH RESPECT TO THE AIRCRAFT ELECTRICIANS, WHO WORK SPECIFICALLY ON
AIRCRAFT COMPONENTS, AND THE ELECTRICIANS WHO PERFORM ELECTRICAL DUTIES
OF A GENERAL NATURE.
WHILE THE BULK OF THE WORK ASSIGNED TO THEM INVOLVES THE PERFORMANCE
OF ELECTRICAL TASKS, ELECTRICIANS OFTEN ASSIST EMPLOYEES OR OTHER
CLASSIFICATIONS IN THE PERFORMANCE OF WORK WHICH DOES NOT INVOLVE THE
USE OF ELECTRICAL SKILLS. SUCH NONELECTRICAL WORK IS GENERALLY
PERFORMED BY ELECTRICIANS WHEN THEY RUN OUT OF ELECTRICAL WORK AND
GENERALLY INVOLVES SUCH ROUTINE CHORES AS ASSISTING AN AIRCRAFT MECHANIC
IN THE INSTALLATION OR REMOVAL OF SOME MECHANICAL COMPONENT. WHETHER
PERFORMING ELECTRICAL OR NONELECTRICAL DUTIES, ELECTRICIANS GENERALLY
WORK SIDE BY SIDE WITH EMPLOYEES OF OTHER CLASSIFICATIONS.
BASED ON THE FOREGOING FACTS, I FIND THAT THE EMPLOYEES IN THE
PETITIONED UNIT DO NOT HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST WHICH IS DISTINCT FROM OTHER EMPLOYEES IN THE ACTIVITY'S
PRODUCTION DEPARTMENT. AS NOTED ABOVE, THE WORK PERFORMED BY THE
EMPLOYEES IN THE PROPOSED UNIT IS PART OF AN OVERALL INTEGRATED
PRODUCTION PROCESS REQUIRING THE COOPERATION AND COORDINATED EFFORTS OF
EMPLOYEES IN VARIOUS JOB CLASSIFICATIONS WORKING IN A NUMBER OF
FUNCTIONALLY INTERDEPENDENT SHOPS. FURTHER, THE EVIDENCE ESTABLISHES
THAT MANY OF THE EMPLOYEES IN THE CLAIMED UNIT WORK IN SHOPS CONTAINING
EMPLOYEES IN NONELECTRICAL JOB CLASSIFICATIONS; THAT OFTEN ARE NOT
SUPERVISED BY ELECTRICIAN FOREMEN; THAT ON OCCASION THEY PERFORM
NONELECTRICAL WORK AND THAT THEY ARE ENGAGED RESPECTIVELY IN REPETITIVE
WORK WHICH INVOLVES SPECIALIZED AIRCRAFT COMPONENTS. /9/
IN THESE CIRCUMSTANCES AND NOTING THE FACT THAT THE EMPLOYEES IN THE
CLAIMED UNIT SHARE THE SAME GENERAL TERMS AND CONDITIONS OF EMPLOYMENT
WITH OTHER EMPLOYEES WITHIN THE PRODUCTION DEPARTMENT /10/ AND THAT SUCH
A UNIT WILL NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS, I FIND THAT THE UNIT SOUGHT BY THE IBEW IS NOT APPROPRIATE.
/11/ ACCORDINGLY, I SHALL ORDER THAT THE PETITION IN THE SUBJECT CASE BE
DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 70-1508 BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 2, 1971
/1/ PETITIONER STATED AT THE HEARING THAT, SUBSEQUENT TO THE FILING
OF THE PETITION, THE NUMBER OF LOCAL 1245 HAD BEEN CHANGED TO 2297.
/2/ THE UNIT APPEARS AS AMENDED AT HEARING. ALTHOUGH THE IBEW ADDED
THE CLASSIFICATION OF "ELECTRICIAN WORKER" TO ITS INCLUSIONS, THERE WERE
NO EMPLOYEES LISTED WITH SUCH CLASSIFICATION.
/3/ IN THIS CONNECTION, THE ACTIVITY URGES THE ASSISTANT SECRETARY TO
GIVE "PARAMOUNT CONSIDERATION" TO THE DECISIONS OF THE NATIONAL
MEDIATION BOARD AS PRECEDENT IN THE INSTANT CASE. AS AN ALTERNATIVE
ARGUMENT, IT CONTENDS THAT EVEN IF THE EMPLOYEES IN THE PROPOSED UNIT
ARE FOUND TO BE "CRAFTSMEN" THEY STILL WOULD NOT BE ENTITLED TO SEPARATE
REPRESENTATION SINCE THE CIRCUMSTANCES UNDER WHICH THEY PERFORM THEIR
RESPECTIVE DUTIES DISCLOSE THAT MANY OTHER FACTORS WHICH ARE NECESSARY
TO JUSTIFY SEPARATE REPRESENTATION ARE NOT PRESENT.
/4/ ASSOCIATION OF AERONAUTICAL EXAMINERS (AAE); INTERNATIONAL
ASSOCIATION OF MACHINISTS (IAM); INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS (IBEW); NATIONAL ASSOCIATION OF GOVERNMENT
INSPECTORS (NAGI); NATIONAL ASSOCIATION OF PLANNERS, ESTIMATORS AND
PROGRESSMEN (NAPEP); AND PATTERNMAKERS ASSOCIATION OF SAN FRANCISCO AND
VICINITY.
/5/ THESE ARE THE PRODUCTION, PLANNING AND CONTROL DEPARTMENT, THE
PRODUCTION ENGINEERING DEPARTMENT AND THE PRODUCTION DEPARTMENT.
/6/ EXCEPT FOR THE UNIT OF ELECTRICIANS IN THE PRODUCTION ENGINEERING
DEPARTMENT WHO ARE ALREADY EXCLUSIVELY REPRESENTED BY THE IBEW, THE
ACTIVITY HAS NO OTHER EMPLOYEES HOLDING EITHER AIRCRAFT ELECTRICIAN OR
ELECTRICIAN RATINGS.
/7/ REPORTEDLY ABOUT 130 DIFFERENT TRADES AND CRAFTS.
/8/ THESE SHOPS ARE LOCATED MAINLY IN THE ELECTRICAL MISSILES BRANCH
OF THE AVIATION DIVISION AND THE AIRCRAFT REWORK BRANCH OF THE AIRFRAMES
DIVISION.
/9/ COMPARE DEPARTMENT OF THE NAVY, NAVAL AIR STATION, ALAMEDA,
CALIFORNIA, A/SLMR NO. 6. IN THAT DECISION, THE PLUMBING EMPLOYEES WERE
FOUND TO CONSTITUTE AN APPROPRIATE UNIT IN CIRCUMSTANCES WHERE THEY
WORKED UNDER THE DIRECTION OF PLUMBING FOREMEN IN TWO CLOSELY RELATED
WORK CENTERS WITHIN THE SAME BUILDING WHERE THEY WERE ENGAGED IN A WIDE
RANGE OF PLUMBING MAINTENANCE FUNCTIONS.
/10/ THE EVIDENCE ABOVE SHOWS THAT EMPLOYEES IN THE PETITIONED UNIT
HAVE THE SAME WORK SCHEDULES, ARE SUBJECT TO THE SAME PERSONNEL POLICIES
AND PROCEDURES AND SHARE THE SAME EATING PLACES AND OTHER FACILITIES AS
OTHER EMPLOYEES IN THE PRODUCTION DEPARTMENT.
/11/ THE FACT THAT THE ACTIVITY HAS APPRENTICESHIP PROGRAMS FOR
AIRCRAFT ELECTRICIANS AND ELECTRICIANS WAS NOT CONSIDERED TO REQUIRE A
CONTRARY RESULT WHERE, AS HERE, THE EVIDENCE ESTABLISHES THAT THE
EMPLOYEES WHO HAVE SERVED APPRENTICESHIP ARE LATER INTERSPERSED AMONG
EMPLOYEES OF OTHER SKILLS IN AN INTEGRATED PRODUCTION PROCESS.
1 A/SLMR 48; P. 259; CASE NO. 51-1236; JUNE 1, 1971.
UNITED STATES DEPARTMENT OF
AGRICULTURE, SOIL CONSERVATION
SERVICE
A/SLMR NO. 48
THE PETITIONER, LOCAL 2862, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE) SOUGHT TO REPRESENT A UNIT OF EMPLOYEES
CLASSIFIED AS "DISTRICT CONSERVATIONISTS" WORKING FOR THE UNITED STATES
DEPARTMENT OF AGRICULTURE, SOIL CONSERVATION SERVICE WITHIN THE STATE OF
MINNESOTA. THE ACTIVITY SOUGHT THE DISMISSAL OF THE PETITION ON THE
BASIS OF A CONTENTION THAT DISTRICT CONSERVATIONISTS WERE SUPERVISORS
WITHIN THE MEANING OF SECTION 2(C) OF THE EXECUTIVE ORDER.
UNDER ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT
THE EMPLOYEES IN THE CLAIMED UNIT WERE SUPERVISORS. IN THIS REGARD, HE
NOTED THAT THE DISTRICT CONSERVATIONISTS WORK IN LOCATIONS SCATTERED
THROUGHOUT THE STATE OF MINNESOTA. EACH LOCATION, WHICH IS CALLED A
"WORK UNIT," IS MADE UP OF A DISTRICT CONSERVATIONIST AND ANYWHERE FROM
ZERO TO FOUR FULL-TIME FEDERAL EMPLOYEES, PLUS SOME TEMPORARY FEDERAL
EMPLOYEES AND STATE EMPLOYEES. WITHIN THE WORK UNITS, THE DISTRICT
CONSERVATIONIST HAS THE AUTHORITY TO ASSIGN WORK, SCHEDULE AND APPROVE
LEAVE AND INITIATE RECOMMENDATIONS FOR SUCH PERSONNEL ACTIONS AS
PROMOTION, MERIT AWARDS AND RETENTION OF PROBATIONARY EMPLOYEES.
DISTRICT CONSERVATIONISTS ALSO INTERVIEW AND HIRE TEMPORARY EMPLOYEES.
SUCH FUNCTIONS ARE PERFORMED WITHOUT ANY HIGHER DAY-TO-DAY SUPERVISION.
IN THIS REGARD, IT WAS NOTED THAT AREA CONSERVATIONISTS, WHO ARE THE
NEXT LEVEL OF SUPERVISION, ARE LOCATED ANYWHERE FROM 20 TO 80 MILES AWAY
FROM THE WORK UNITS AND ONLY VISIT THE WORK UNITS APPROXIMATELY ONCE PER
MONTH.
BASED ON THE FOREGOING, THE ASSISTANT SECRETARY FOUND THAT DISTRICT
CONSERVATIONISTS WERE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER. ACCORDINGLY, ON THE BASIS OF THE SECTION 10(B)(1)
PROHIBITION AGAINST THE ESTABLISHMENT OF A UNIT WHICH INCLUDES
MANAGEMENT OFFICIALS OR SUPERVISORS, HE ORDERED THAT THE PETITION BE
DISMISSED.
UNITED STATES DEPARTMENT OF AGRICULTURE,
SOIL CONSERVATION SERVICE /1/
AND
LOCAL 2862, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO /2/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER JOHN W. BEATY. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS.
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, LOCAL 2862, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, HEREIN CALLED THE AFGE, SEEKS AN ELECTION IN A UNIT
OF ALL DISTRICT CONSERVATIONISTS WORKING THROUGHOUT THE STATE OF
MINNESOTA. /3/ THE ACTIVITY CONTENDS THAT DISTRICT CONSERVATIONISTS ARE
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE EXECUTIVE ORDER.
THE ALLEGED SUPERVISORY STATUS OF THE DISTRICT CONSERVATIONISTS WAS THE
SOLE ISSUE RAISED AT THE HEARING.
THE MISSION OF THE ACTIVITY, AS IT RELATES TO THE EMPLOYEES INVOLVED
IN THIS CASE, IS TO PLAN, EXECUTE AND MANAGE SOIL AND WATER CONSERVATION
PROGRAMS WITH LAND OWNERS AND OPERATORS. THE HIGHEST ORGANIZATIONAL
LEVEL CONCERNED HEREIN IS THE OFFICE OF THE STATE CONSERVATIONIST, WHOSE
JURISDICTION IN THE INSTANT CASE COVERS THE STATE OF MINNESOTA. THE
STATE IS DIVIDED INTO SEVEN "AREAS," EACH UNDER THE DIRECTION OF AN AREA
CONSERVATIONIST, GS-12. EACH "AREA" CONSISTS OF A NUMBER OF DISTRICTS,
WHICH ARE COMMONLY REFERRED TO AS "WORK UNITS." ORGANIZATIONALLY, EACH
DISTRICT IS SUPPOSED TO HAVE A DISTRICT CONSERVATIONIST ASSIGNED TO IT.
AT THE DATE OF THE HEARING IN THIS CASE, THERE WERE 68 DISTRICT
CONSERVATIONISTS SOUGHT BY THE PETITION HEREIN.
DISTRICT CONSERVATIONISTS MAY BE GRADES GS-9 OR GS-11, WITH THE 68
SO-CLASSIFIED EMPLOYEES IN MINNESOTA BEING DIVIDED APPROXIMATELY EQUALLY
BETWEEN THESE TWO GRADES. EMPLOYEES OTHER THAN DISTRICT
CONSERVATIONISTS MAY BE AND ARE GENERALLY ASSIGNED TO THE WORK UNITS,
ALTHOUGH THERE IS GREAT VARIATION IN THE EMPLOYEE COMPLEMENT IN A WORK
UNIT. AN APPARENTLY "FULLY STAFFED" WORK UNIT CONSISTS OF TWO
CONSERVATION TECHNICIANS, WHOSE GRADE RANGE WAS GS-5 THROUGH GS-7, ONE
DISTRICT AIDE, ONE PART-TIME DISTRICT CLERK AND TWO PART-TIME "WAE'S"
(WHEN ACTUALLY EMPLOYED). /4/ IT APPEARS THAT CONSERVATION TRAINEES ARE
ALSO PERIODICALLY ASSIGNED TO A WORK UNIT. THE DISTRICT AIDE AND
DISTRICT CLERK ARE PART OF THE WORK UNIT, BUT THEY ARE NOT CONSIDERED
FEDERAL EMPLOYEES BY THE PARTIES IN THAT THEY ARE PAID PRIMARILY WITH
STATE FUNDS.
OF THE 68 DISTRICT CONSERVATIONISTS, 13 OF THEM CURRENTLY HAVE NO
OTHER FULL-TIME FEDERAL EMPLOYEES IN THEIR WORK UNITS. AS OF THE DATE
OF THE HEARING, 28 OF THE DISTRICT CONSERVATIONISTS WORKED WITH 1
FULL-TIME EMPLOYEE ASSIGNED TO THE UNIT, 19 WITH 2 ASSIGNED, 5 WITH 3
ASSIGNED AND 3 WITH 4 ASSIGNED. OF THE 13 DISTRICT CONSERVATIONISTS WHO
HAD NO FULL-TIME EMPLOYEES ASSIGNED TO THEIR UNITS, 8 HAD A WAE AT SOME
TIME DURING THE YEAR AND ALL 68 DISTRICT CONSERVATIONISTS HAD SOME USE
OF DISTRICT EMPLOYEES. ACCORDING TO THE ACTIVITY, THE FACT THAT SOME
DISTRICT CONSERVATIONISTS CURRENTLY WORK WITH NO OTHER FULL-TIME
EMPLOYEES IN THEIR UNITS IS A RESULT OF BUDGETARY LIMITATIONS. HOWEVER,
IT IS STATED THAT THIS LIMITATION MAY CONTINUE FOR THE INDEFINITE
FUTURE.
THE EVIDENCE REVEALS THAT THE AREA CONSERVATIONISTS ARE EACH
RESPONSIBLE FOR AS MANY AS 12 DISTRICT UNITS. THE LOCATIONS OF THE WORK
UNITS GEOGRAPHICALLY CLUSTERED AROUND THE LOCATION OF THE AREA OFFICE.
JUDGING FROM AN UNSCALED MAP SUBMITTED AS AN EXHIBIT BY THE AFGE, IT
APPEARS THAT THE DISTANCE OF THE DISTRICT OFFICES FROM THE AREA OFFICES
RANGE FROM 20 TO 80 MILES, WITH A MAJORITY BEING AT LEAST 50 MILES AWAY.
THE UNDISPUTED EVIDENCE REVEALS THAT THE AREA CONSERVATIONIST VISITS A
GIVEN DISTRICT WORK UNIT NO MORE OFTEN THAN ONCE A MONTH.
AT THE DISTRICT LEVEL IN IMPLEMENTING THE ACTIVITY'S MISSION, THE
DISTRICT CONSERVATIONIST PERFORMS A NUMBER OF DUTIES. HE IS PRIMARILY
RESPONSIBLE FOR THE DEVELOPMENT OF THE "ANNUAL PLAN OF OPERATION," WHICH
IS A PROJECTION OF THE GOALS OF THE WORK UNIT DURING THE UPCOMING YEAR.
ASSISTANTS IN THE PREPARATION OF THE ANNUAL PLAN MAY COME FROM
TECHNICIANS IN THE WORK UNIT AND THE "DISTRICT BOARD." /5/ THE ANNUAL
PLANS ARE RECEIVED AND APPROVED BY AREA CONSERVATIONISTS BUT THE
EVIDENCE REVEALS THAT THESE PLANS ARE SELDOM REVISED. THE DISTRICT
CONSERVATIONIST IS RESPONSIBLE FOR THE DAY-TO-DAY ACTIVITIES OF THE WORK
UNIT. WHILE THE RECORD CONTAINS NUMEROUS REFERENCES TO THE WORK OF THE
UNIT BEING A "TEAM" EFFORT, IT WAS GENERALLY CONCEDED THAT ULTIMATE
AUTHORITY ON THE ESTABLISHMENT OF PRIORITIES AND MAKING OF WORK
ASSIGNMENTS IS VESTED IN THE DISTRICT CONSERVATIONIST.
THE ACTIVITY MAKES NO CLAIM THAT DISTRICT CONSERVATIONISTS HAVE
DIRECT AUTHORITY TO HIRE PERMANENT EMPLOYEES, TRANSFER, SUSPEND, LAY
OFF, RECALL, PROMOTE, DISCHARGE, REWARD OR DISCIPLINE UNIT EMPLOYEES,
BUT CONTENDS THAT THEY POSSESS THE AUTHORITY TO MAKE EFFECTIVE
RECOMMENDATIONS IN THESE AREAS THROUGH THE EVALUATION OF EMPLOYEE
PERFORMANCE AND PERSONNEL RECOMMENDATIONS. IN THIS REGARD, IT IS THE
RESPONSIBILITY OF THE DISTRICT CONSERVATIONIST TO REVIEW ANNUALLY WITH
EACH EMPLOYEE THE EMPLOYEE'S "STANDARDS OF PERFORMANCE" TO ASCERTAIN JOB
PERFORMANCE AGAINST JOB DESCRIPTION. WHILE THIS IS IN CERTAIN RESPECTS
A CONSULTIVE EFFORT BETWEEN THE DISTRICT CONSERVATIONIST AND THE
EMPLOYEE, THE FORMER MUST SIGN THE FORM AS "SUPERVISOR." DISTRICT
CONSERVATIONISTS MAKE ANNUAL APPRAISALS ON EMPLOYEES WORKING IN THEIR
UNIT AND THESE EVALUATIONS ARE THE "FIRST LEVEL" BASIS FOR DETERMINING
IF AN EMPLOYEE WILL RECEIVE A PROMOTION. /6/ NEW HIRES SERVE A ONE YEAR
PROBATIONARY PERIOD DURING WHICH TIME THE DISTRICT CONSERVATIONIST TO
WHOSE UNIT THE TRAINEE IS ASSIGNED MUST SUBMIT PROGRESS REPORTS AT
INTERVALS OF 3, 5 AND 10 MONTHS. INCLUDED IN THESE REPORTS ARE
RECOMMENDATIONS ON WHETHER THE EMPLOYEE SHOULD BE RETAINED AT THE
CONCLUSION OF THE PROBATIONARY PERIOD. FURTHER, THE RECORD REFLECTS
THAT DISTRICT CONSERVATIONISTS HAVE SUBMITTED RECOMMENDATIONS FOR MERIT
AND/OR INCENTIVE AWARDS AND THESE RECOMMENDATIONS HAVE BEEN
AFFIRMATIVELY ACTED UPON. DISTRICT CONSERVATIONISTS ALSO ARE THE
APPROVING AUTHORITY FOR "ACCEPTABLE LEVEL OF COMPETENCY" RATINGS.
AS NOTED ABOVE, DISTRICT CONSERVATIONISTS HAVE NO AUTHORITY TO HIRE
PERMANENT EMPLOYEES, BUT WHEN THE HIRING OF WAE'S OR "TEMPORARY LIMITED
APPOINTED" EMPLOYEES IS AUTHORIZED, SUCH EMPLOYMENT BEING CONTINGENT ON
THE AVAILABILITY OF FUNDS, THE DISTRICT CONSERVATIONISTS DO THE
INTERVIEWING AND HIRING, WITH THE PAPER WORK BEING PERFORMED IN THE AREA
OFFICE. WITH RESPECT TO DISTRICT AIDES, WHOLE THESE PEOPLE ARE ACTUALLY
THE EMPLOYEES OF THE DISTRICT BOARD, THE DISTRICT CONSERVATIONISTS WILL
OFTEN INTERVIEW APPLICANTS AND THEN PASS THEIR RECOMMENDATIONS ON TO THE
BOARD.
DISTRICT CONSERVATIONISTS ARE RESPONSIBLE FOR APPROVING LEAVE
REQUESTS, ALTHOUGH IT APPEARS THAT SUCH REQUESTS ARE GENERALLY
"SELF-APPROVING." IN THIS RESPECT, A TECHNICIAN IN A WORK UNIT IS
GENERALLY ASSIGNED THE TASK OF MAINTAINING TIME AND ATTENDANCE RECORDS,
BUT THE DISTRICT CONSERVATIONIST MUST INITIAL ALL SUCH RECORDS OTHER
THAN HIS OWN. THE DISTRICT CONSERVATIONIST ALSO SETS VACATION SCHEDULES
FOR WORK UNIT PERSONNEL AND IS RESPONSIBLE FOR CERTAIN ADMINISTRATIVE
RECORD KEEPING. HOWEVER, THE RECORD DOES NOT REFLECT ANY PERCENTAGE
BREAKDOWN OF THE TIME SPENT BY DISTRICT CONSERVATIONISTS ON "SUPERVISORY
OR ADMINISTRATIVE" WORK AS OPPOSED TO FUNCTIONS BEING PERFORMED BY OTHER
WORK UNIT PERSONNEL. /7/
IN SUPPORT OF ITS CONTENTION THAT DISTRICT CONSERVATIONISTS ARE NOT
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE EXECUTIVE ORDER,
THE AFGE STRESSED THAT INCUMBENTS IN THAT CLASSIFICATION HAVE NEVER
HIRED A FULL-TIME EMPLOYEE, TRANSFERRED, SUSPENDED, LAID OFF, RECALLED,
PROMOTED, DISCHARGED, ASSIGNED, REWARDED OR DISCIPLINED OTHER EMPLOYEES.
THE AFGE ALSO SOUGHT TO DEMONSTRATE THAT RATHER THAN HAVING THE
AUTHORITY TO RESPONSIBLY DIRECT OTHER EMPLOYEES, THE WORK UNIT WAS A
"TEAM" WHEREIN EACH INDIVIDUAL, REGARDLESS OF RANK, PARTICIPATED IN THE
MAKING OF DECISIONS.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE EVIDENCE DOES NOT
SUPPORT THE AFGE'S POSITION.
OF CRUCIAL CONCERN TO A RESOLUTION OF THE DISPUTED ISSUE IN THIS CASE
IS THE PHYSICAL SETTING WITHIN WHICH THE DISTRICT CONSERVATIONISTS WORK.
THEY ARE PHYSICALLY SEPARATED FROM HIGHER LEVEL SUPERVISION BY
SUBSTANTIAL DISTANCES AND ARE VISITED BY THAT HIGHER SUPERVISION ON AN
INFREQUENT BASIS. /8/ IN SUCH CIRCUMSTANCES, IT IS CLEAR THAT THE
DISTRICT CONSERVATIONIST IS THE ONLY ONE ON THE SCENE WHO CAN
RESPONSIBLY DIRECT THE WORK UNIT'S DAY-TO-DAY EFFORTS. MOREOVER, THE
EVIDENCE DEMONSTRATES THAT UNDERLYING THE TEAM ATMOSPHERE IS THE FACT
THAT VESTED IN THE DISTRICT CONSERVATIONIST IS THE RESPONSIBILITY TO
CARRY OUT THE MISSION OF THE WORK UNIT. IN THIS RESPECT, THE EVIDENCE
REVEALED THAT IF A DISPUTE DEVELOPED BETWEEN THE DISTRICT
CONSERVATIONIST AND A TECHNICIAN, THE ORDERS OF THE FORMER WOULD
PREVAIL.
THE GEOGRAPHIC SEPARATENESS GIVES GREATER EMPHASIS TO THE EVALUATION
AND RECOMMENDATION FUNCTIONS OF THE DISTRICT CONSERVATIONISTS. THE
DISTANCE AND THE INFREQUENCY OF THE VISITS OF HIGHER SUPERVISION
REQUIRES THAT THE RECOMMENDATIONS ON PERSONNEL MATTERS MADE BY A
DISTRICT CONSERVATIONIST TO THE AREA CONSERVATIONIST CARRY CONSIDERABLE
WEIGHT. THE DAILY WORK EFFORTS OF WORK UNIT PERSONNEL ARE SEEN ONLY BY
THE DISTRICT CONSERVATIONIST. THE AFGE ARGUES THAT SOMEONE HIGHER THAN
A DISTRICT CONSERVATIONIST ALWAYS HAS THE FINAL WORK ON PERSONNEL
MATTERS, BUT THIS DOES NOT DETRACT FROM THE EFFECTIVE NATURE OF THE
RECOMMENDATION OF THE FIRST LEVEL OF SUPERVISION. THERE WAS NO EVIDENCE
IN THE RECORD TO INDICATE THAT EVALUATIONS AND RECOMMENDATIONS OF
DISTRICT CONSERVATIONISTS ARE SUBJECTED TO ANY KIND OF "ON LOCATION"
REVIEW. ON THE CONTRARY, THERE IS CONSIDERABLE EVIDENCE OF THE
EFFECTIVENESS OF RECOMMENDATIONS MADE BY THE DISTRICT CONSERVATIONISTS.
FOR EXAMPLE, RECOMMENDATIONS FOR QUALITY WITHIN-GRADE AWARDS HAVE BEEN
AFFIRMATIVELY ACTED UPON.
BASED ON THE FOREGOING, AND NOTING PARTICULARLY THE GEOGRAPHIC
SEPARATENESS BETWEEN THE LOCATIONS OF THE WORK UNITS AND THE AREA
OFFICES, THE INFREQUENCY OF VISITS TO THE WORK UNITS BY SUPERVISION
HIGHER THAN THE DISTRICT CONSERVATIONISTS, THE EXERCISED AUTHORITY OF
THE DISTRICT CONSERVATIONISTS TO MAKE ASSIGNMENTS TO WORK UNIT
PERSONNEL, TO APPROVE LEAVE, AND TO EFFECTIVELY RECOMMEND SUCH PERSONNEL
ACTIONS AS PROMOTION, RETENTION OF PROBATIONARY EMPLOYEES, AND GRANTING
OF MERIT AWARDS, I FIND THAT A UNIT OF EMPLOYEES CLASSIFIED AS DISTRICT
CONSERVATIONISTS WOULD INCLUDE SUPERVISORS AS DEFINED BY SECTION 2(C) OF
THE EXECUTIVE ORDER.
SECTION 10(B)(1) OF EXECUTIVE ORDER 11491 PROHIBITS THE ESTABLISHMENT
OF A UNIT IF IT INCLUDES ANY MANAGEMENT OFFICIAL OR SUPERVISOR.
ACCORDINGLY, I FIND THE PETITION HEREIN SHOULD BE DISMISSED. /9/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 51-1236 BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 1, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ THE TITLE OF THE CLASSIFICATION SOUGHT APPEARS AS CORRECTED AT
THE HEARING.
/4/ THE RECORD DISCLOSES THAT THE AFGE WAS CERTIFIED UNDER EXECUTIVE
ORDER 11491 AS THE EXCLUSIVE REPRESENTATIVE FOR A UNIT OF NONSUPERVISORY
PROFESSIONAL AND CLERICAL EMPLOYEES IN THE DISTRICT WORK UNITS AND IN
THE STATE AND AREA OFFICES. IT APPEARS THAT THE STATUS OF THE DISTRICT
CONSERVATIONISTS WAS LEFT UNRESOLVED DURING THE PROCESSING OF THE PRIOR
CASE WITH THE PARTIES HAVING AN INFORMAL AGREEMENT TO PUT THIS ISSUE
BEFORE THE ASSISTANT SECRETARY BY WAY OF A SEPARATE RO PETITION. THE
RECORD IN THIS CASE INDICATES THAT THE AFGE SEEKS A SEPARATE UNIT OF
DISTRICT CONSERVATIONISTS RATHER THAN ATTEMPTING TO USE THE INSTANT
PETITION TO BRING THESE EMPLOYEES INTO THE EXISTING EXCLUSIVE UNIT. IN
VIEW OF THE CONCLUSIONS CONTAINED HEREIN, IT IS UNNECESSARY TO REACH THE
ISSUE OF THE APPROPRIATENESS OF A UNIT OF DISTRICT CONSERVATIONISTS
SEPARATE FROM OTHER WORK UNIT PERSONNEL.
/5/ THE DISTRICT BOARD IS MADE UP OF NON-FEDERAL EMPLOYEE CITIZENS
WHO ASSERT "PROGRAM CONTROL" OVER THE DISTRICT WORK UNITS IN THAT IT
MUST APPROVE PROJECTS REQUESTED BY THE PUBLIC.
/6/ THE RECORD REVEALS THAT VARIOUS TYPES OF PERFORMANCE EVALUATIONS
WERE MADE ON WORK UNIT EMPLOYEES BY SOIL SCIENTISTS AND ENGINEERS WHO
ARE DETAILED TO WORK UNITS BY THE STATE OFFICE FOR SPECIFIC ASSIGNMENTS.
THE ACTIVITY CONTENDED THAT WHILE THESE EVALUATIONS WERE OF THE SAME
FORM AS THOSE DONE BY THE DISTRICT CONSERVATIONISTS, THE FOCUS WAS MORE
ON THE TECHNICAL ASPECTS OF PERFORMANCE AND WAS NOT THE TYPE OF
"CONTINUOUS REVIEW" FOR WHICH THE DISTRICT CONSERVATIONIST IS
RESPONSIBLE.
/7/ THE AFGE SUBMITTED AS AN EXHIBIT AN ACTIVITY DOCUMENT SHOWING A
YEAR'S BREAKDOWN OF HOURS WORKED OF A GIVEN DISTRICT CONSERVATIONIST.
ACCORDING TO THAT DOCUMENT, THE DISTRICT CONSERVATIONIST SPENT 12 HOURS
DURING THE YEAR ON "MANAGEMENT AND ADMINISTRATION." HOWEVER, THE RECORD
DOES NOT CONTAIN ANY EXPLANATION OF THE OTHER FUNCTIONAL BREAKDOWNS,
SOME OF WHICH MAY BE SUPERVISORY IN NATURE, AND THE EXPLANATION OF WHAT
IS CONSIDERED "MANAGEMENT AND ADMINISTRATION" SPECIFICALLY STATES, "DOES
NOT INCLUDE DIRECTION OF SPECIFIC PROGRAM ACTIVITIES . . . "
/8/ COMPARE UNITED STATES NAVY DEPARTMENT, UNITED STATES NAVAL
WEAPONS STATION, YORKTOWN, VIRGINIA A/SLMR NO. 30, WHEREIN THE FACT THAT
STATION CAPTAINS WERE THE HIGHEST RANKING EMPLOYEES WHO WERE WITH UNIT
PERSONNEL ON A FULL-TIME BASIS WAS NOT FOUND CONTROLLING IN VIEW OF THE
CLOSE PROXIMITY OF SUPERVISORS AND THE FACT THAT SUCH SUPERVISORS MADE
NUMEROUS DAILY VISITS TO THE STATIONS.
/9/ INASMUCH AS I HAVE CONCLUDED THAT THE PETITION SHOULD BE
DISMISSED BECAUSE THE UNIT SOUGHT INCLUDES PERSONS WHO ARE SUPERVISORS
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER, I DO NOT REACH THE
QUESTION AS TO WHETHER A DISTRICT CONSERVATIONIST WHO HAS NO EMPLOYEES
IN HIS WORK UNIT IS AN "EMPLOYEE" WITHIN THE MEANING OF SECTION 2(B) OF
THE ORDER.
1 A/SLMR 47; P. 244; CASE NO. 70-1532; JUNE 1, 1971.
CALIFORNIA ARMY NATIONAL GUARD
1ST BATTALION, 250TH ARTILLERY
AIR DEFENSE
A/SLMR NO. 47
THIS CASE INVOLVES A COMPLAINT FILED BY NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-35 (IND) (NAGE) AGAINST CALIFORNIA ARMY
NATIONAL GUARD, 1ST BATTALION, 250TH ARTILLERY, AIR DEFENSE (NATIONAL
GUARD) ALLEGING VIOLATIONS OF SECTIONS 19(A)(1) AND (2).
THE EVENTS GIVING RISE TO THE COMPLAINT OCCURRED DURING NAGE'S
ORGANIZATIONAL EFFORTS AMONG THE NATIONAL GUARD'S FULL-TIME CIVILIAN
TECHNICIANS. DURING THIS PERIOD A UNIT EMPLOYEE DISTRIBUTED THREE
PIECES OF ANTI-UNION CAMPAIGN PROPAGANDA. THE NAGE SOUGHT TO PROVE THAT
THE NATIONAL GUARD WAS RESPONSIBLE FOR THIS EMPLOYEE'S ACTIVITY EITHER
BY WAY OF ATTRIBUTING TO HIM SUPERVISORY STATUS OR BY PROVING THAT HIS
CONDUCT HAD IN SOME MANNER BEEN AUTHORIZED, ENCOURAGED OR RATIFIED BY
THE NATIONAL GUARD.
THE ASSISTANT SECRETARY ADOPTED THE CONCLUSIONS AND RECOMMENDATIONS
OF THE HEARING EXAMINER THAT THE UNIT EMPLOYEE DID NOT POSSESS ANY
SUPERVISORY AUTHORITY IN HIS CAPACITY AS A CIVILIAN EMPLOYEE IN THE UNIT
AND THAT THE NATIONAL GUARD HAD IN NO WAY ASSISTED OR ENCOURAGED THE
EMPLOYEE IN THE DISSEMINATION OF THE ANTI-UNION CAMPAIGN PROPAGANDA.
ALL CIVILIAN TECHNICIANS IN THE BARGAINING UNIT ARE REQUIRED ALSO TO
BE MEMBERS OF THE NATIONAL GUARD UNIT AND WHEN THE UNIT HAS ITS
"DRILLS," THESE PERSONS ARE IN A "MILITARY STATUS." THE EMPLOYEE WHO
DISTRIBUTED THE ANTI-UNION CAMPAIGN MATERIAL HOLDS A NONCOMMISSIONED
RANK IN THE NATIONAL GUARD AND DURING THE HEARING THE PARTIES HAD
STIPULATED THAT IN THE MILITARY CAPACITY THE EMPLOYEE POSSESSED
"SUPERVISORY AUTHORITY." THE NAGE CONTENDED THAT THE NATIONAL GUARD MUST
BE HELD RESPONSIBLE FOR THE CONDUCT OF THIS EMPLOYEE BECAUSE AS A
NONCOMMISSIONED OFFICER IN THE NATIONAL GUARD HE COULD INFLUENCE AND
COERCE UNIT EMPLOYEES BY EXERCISING AUTHORITY WHILE FUNCTIONING IN HIS
MILITARY STATUS. THE ASSISTANT SECRETARY ADOPTED THE RECOMMENDATION OF
THE HEARING EXAMINER THAT THE EMPLOYEE'S MILITARY "SUPERVISORY" STATUS,
IN THIS CASE, WAS NOT SUFFICIENT TO MAKE HIM PART OF AGENCY MANAGEMENT
OR A SUPERVISOR WITHIN THE UNIT OR TO RENDER THE NATIONAL GUARD
RESPONSIBLE FOR THE EMPLOYEE'S ANTI-UNION ACTIVITIES.
WITH RESPECT TO THE 19(A)(2) ALLEGATION CONTAINED IN THE COMPLAINT
THE ASSISTANT SECRETARY FOUND THAT NO EVIDENCE HAD BEEN PRESENTED AT THE
HEARING WHICH COULD CONSTITUTE IMPROPER DISCRIMINATION WITHIN THE
MEANING OF THAT SECTION OF THE EXECUTIVE ORDER.
ACCORDINGLY, THE ASSISTANT SECRETARY DISMISSED THE COMPLAINT IN ITS
ENTIRETY.
CALIFORNIA ARMY NATIONAL GUARD
1ST BATTALION, 250TH ARTILLERY
AIR DEFENSE
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-35 (IND)
ON MARCH 23, 1971, HEARING EXAMINER HENRY L. SEGAL ISSUED HIS REPORT
AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE
COMPLAINANT HAD NOT MET THE BURDEN OF PROOF WITH RESPECT TO THE 19(A)(1)
AND (2) ALLEGATIONS CONTAINED IN THE COMPLAINT AND RECOMMENDING THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT
FILED EXCEPTIONS WITH RESPECT TO CERTAIN SPECIFIC RECOMMENDATIONS
CONTAINED IN THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS. /1/
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE ENTIRE RECORD IN
THE SUBJECT CASE, INCLUDING THE EXCEPTIONS AND STATEMENT OF POSITION
FILED BY THE COMPLAINANT, I HEREBY ADOPT THE FINDINGS, CONCLUSIONS /2/
AND RECOMMENDATIONS OF THE HEARING EXAMINER. /3/
THE COMPLAINANT DID NOT EXCEPT TO THE HEARING EXAMINER'S CONCLUSIONS
AND RECOMMENDATIONS THAT UNIT EMPLOYEE WILLIAM E. DILENA DID NOT POSSESS
ANY SUPERVISORY AUTHORITY IN HIS CAPACITY AS A CIVILIAN EMPLOYEE IN THE
UNIT AND THAT THE RESPONDENT HAD IN NO WAY ASSISTED OR ENCOURAGED DILENA
IN THE DISSEMINATION OF ANTI-UNION CAMPAIGN PROPAGANDA. AFTER CAREFUL
REVIEW OF THE EVIDENCE IN THIS RESPECT, I ADOPT THESE RECOMMENDATIONS OF
THE HEARING EXAMINER.
THE EXCEPTIONS FILED BY THE COMPLAINANT RELATE SOLELY TO THE
CONCLUSION AND RECOMMENDATION OF THE HEARING EXAMINER THAT THE
RESPONDENT IS NOT RESPONSIBLE FOR DILENA'S CONDUCT BY VIRTUE OF THE FACT
THAT IN DILENA'S "MILITARY CAPACITY" AS A NONCOMMISSIONED OFFICER IN THE
NATIONAL GUARD HE POSSESSES CERTAIN "SUPERVISORY AUTHORITY." IN ITS
EXCEPTIONS, THE COMPLAINANT CONTENDS THAT THE RESPONDENT MUST BE HELD
RESPONSIBLE FOR DILENA'S CONDUCT BECAUSE AS A NONCOMMISSIONED OFFICER IN
THE NATIONAL GUARD HE COULD EFFECTIVELY INFLUENCE AND COERCE UNIT
EMPLOYEES BY EXERCISING "SUPERVISORY" AUTHORITY WHILE FUNCTIONING IN HIS
MILITARY STATUS. AFTER CAREFUL REVIEW OF THE EVIDENCE AND THE
CONTENTIONS MADE IN THE COMPLAINANT'S EXCEPTIONS, I ADOPT THE
RECOMMENDATION OF THE HEARING EXAMINER THAT DELENA'S MILITARY
"SUPERVISORY" STATUS, IN THIS CASE, IS NOT SUFFICIENT TO MAKE HIM PART
OF AGENCY MANAGEMENT OR A SUPERVISOR WITHIN THE UNIT OR RENDER THE
RESPONDENT RESPONSIBLE FOR HIS ANTI-UNION ACTIVITIES. ACCORDINGLY,
THERE WAS NO BASIS FOR FINDING THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) OF THE ORDER.
THE COMPLAINANT DID NOT EXCEPT TO THE RECOMMENDATION OF THE HEARING
EXAMINER THAT NO EVIDENCE WAS PRESENTED WHICH COULD CONCEIVABLY
CONSTITUTE DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR
OTHER CONDITIONS OF EMPLOYMENT. AFTER CAREFUL REVIEW OF THE EVIDENCE, I
ADOPT THE FINDING OF THE HEARING EXAMINER THAT IN THE CIRCUMSTANCES,
THERE IS NO BASIS FOR FINDING A VIOLATION OF SECTION 19(A)(2) OF THE
EXECUTIVE ORDER.
PURSUANT TO SECTION 6(A)(4) OF EXECUTIVE ORDER 11491 AND SECTION
303.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE COMPLAINT BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 1, 1971
/1/ RESPONDENT FILED NO EXCEPTIONS TO THE HEARING EXAMINER'S REPORT
AND RECOMMENDATIONS.
/2/ NO FINDINGS WITH RESPECT TO THE HEARING EXAMINER'S CONCLUSIONS ON
THE LACK OF RESPONDENT RESPONSIBILITY FOR DILENA'S ACTIONS SHOULD NOT BE
CONSTRUED AS AN ADOPTION OF THE NATIONAL LABOR RELATIONS BOARD PRECEDENT
DISCUSSED IN FOOTNOTE 11 OF THE HEARING EXAMINER'S REPORT AND
RECOMMENDATIONS. UNDER ALL THE CIRCUMSTANCES, IT WAS NOT CONSIDERED
NECESSARY TO REACH THE ISSUE WHETHER DIRECT ASSISTANCE BY AN AGENCY OR
ACTIVITY IN THE DISSEMINATION OF CAMPAIGN PROPAGANDA WOULD VIOLATE THE
PROVISIONS OF THE EXECUTIVE ORDER.
/3/ THE HEARING EXAMINER CONCLUDED THAT THE REFERENCE IN THE
COMPLAINT TO THE RESPONDENT'S INVESTIGATION OF THE CHARGE BEING A
"WHITEWASH" WAS APPARENTLY MEANT TO BE AN ADDITIONAL UNFAIR LABOR
PRACTICE ALLEGATION. THE HEARING EXAMINER CONCLUDED THAT IN VIEW OF THE
FINDINGS OF NO VIOLATION, THE INVESTIGATION WAS REASONABLE. I DO NOT
VIEW THE CALIBER OF THE INVESTIGATION OF AN UNFAIR LABOR PRACTICE CHARGE
TO BE A MATTER COVERED BY THE SCOPE OF THE SECTION 19(A) PROHIBITIONS
AND, IN THE INSTANT CASE, SUCH A CONTENTION IS NOT MATERIAL TO THE
ISSUES BEFORE ME. ACCORDINGLY, I MAKE NO FINDINGS AS TO WHETHER THE
RESPONDENT'S INVESTIGATION WAS REASONABLE.
CALIFORNIA ARMY NATIONAL GUARD
1ST BATTALION, 250TH ARTILLERY
AIR DEFENSE
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-35 (IND)
WILLARD A. SHANK, ASSISTANT ATTORNEY
GENERAL, STATE OF CALIFORNIA,
SACRAMENTO, CALIFORNIA, FOR THE RESPONDENT.
RICHARD N. CASTLE, JR., ESQ., NORTH HOLLYWOOD,
CALIFORNIA, FOR THE COMPLAINANT.
BEFORE: HENRY L. SEGAL, HEARING EXAMINER
THIS PROCEEDING WAS HEARD AT SAN FRANCISCO, CALIFORNIA, ON JANUARY 26
AND 27, 1971. IT ARISES PURSUANT TO A NOTICE OF HEARING ISSUED ON
JANUARY 15, 1971, BY THE REGIONAL ADMINISTRATOR FOR THE SAN FRANCISCO
REGION UNDER THE AUTHORITY OF EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER) AND IN ACCORDANCE WITH SECTION 203.8 OF THE RULES AND REGULATIONS
OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS (HEREIN
REFERRED TO AS THE ASSISTANT SECRETARY). THE PROCEEDING WAS INITIATED
BY A COMPLAINT FILED BY THE COMPLAINANT ON APRIL 1, 1970, PURSUANT TO
SECTION 203.3 OF THE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY
ALLEGING VIOLATIONS OF SECTION 19 OF THE ORDER. BASICALLY, THE
COMPLAINT INVOLVES THE ACTIVITY OF MASTER SERGEANT WILLIAM E. DILENA IN
DISSEMINATING THREE PIECES OF ANTI-UNION CAMPAIGN LITERATURE DURING AN
ORGANIZATIONAL CAMPAIGN WHICH IS ALLEGED TO BE VIOLATIVE OF SECTION 19,
SUBSECTIONS (A)(1) AND (A)(2) OF THE ORDER.
AT THE HEARING BOTH PARTIES WERE REPRESENTED BY COUNSEL, WHO WERE
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, SUBMIT ORAL ARGUMENT AND FILE BRIEFS. /1/ UPON THE ENTIRE
RECORD IN THIS MATTER, FROM OBSERVATIONS OF THE WITNESSES, THE HEARING
EXAMINER MAKES THE FOLLOWING:
1. THE ISSUES
SECTION 19(A)(1) OF THE ORDER MAKES IT AN UNFAIR LABOR PRACTICE FOR
AGENCY MANAGEMENT TO INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE IN
THE EXERCISE OF THE RIGHTS ASSURED BY THE ORDER. IN MAKING A
DETERMINATION WHETHER AGENCY MANAGEMENT /2/ HAS VIOLATED SECTION
19(A)(1) THE ISSUE AS TO WHETHER DILENA WAS ACTING AS AN AGENT OF AGENCY
MANAGEMENT WHEN HE ENGAGED IN THE ACTIVITY COMPLAINED OF MUST BE
RESOLVED. IN RESOLVING THAT ISSUE, IT MUST BE ASCERTAINED WHETHER
DILENA IS A SUPERVISOR WITHIN THE MEANING OF THE ORDER, /3/ AND IF
DILENA IS NOT A SUPERVISOR WHETHER THERE IS EVIDENCE OF ANY ACTIONS BY
AGENCY MANAGEMENT WHICH OTHERWISE MAKES THE RESPONDENT RESPONSIBLE FOR
DILENA'S ACTIVITY. IF IT WERE FOUND THAT THE RESPONDENT IS RESPONSIBLE
FOR DILENA'S ACTIVITY, ANOTHER ISSUE WOULD ARISE AS TO WHETHER SUCH
ACTIVITY BY AGENCY MANAGEMENT IS PERMISSABLE UNDER THE ORDER. HOWEVER,
FOR REASONS APPEARING HEREIN, THE HEARING EXAMINER FINDS IT UNNECESSARY
TO RESOLVE THIS LAST ISSUE. /4/
2. BACKGROUND
(A) THE RESPONDENT'S MISSION AND MODE OF OPERATION
THE 1ST BATTALION, 250TH ARTILLERY, OF THE CALIFORNIA NATIONAL GUARD
IS MADE UP OF A HEADQUARTERS BATTERY, AND BATTERIES "A" AND "B". EACH
OF THE BATTERIES ARE LOCATED AT DIFFERENT GEOGRAPHIC LOCATIONS. THE
BATTALION IS ONE OF SEVERAL UNITS THAT MAKE UP THE ARMY AIR DEFENSE
COMMAND (RADCOM). THERE ARE A TOTAL OF 12 STATES WITH NATIONAL GUARD
UNITS THAT CONSTITUTE THIS TASK ORGANIZATION. THE 1ST BATTALION'S
MISSION IS TO FURNISH AIR DEFENSE SUPPORT TO THE NORTH AMERICAN AIR
DEFENSE (NORAD) NIKE HERCULES SYSTEM. THE TOTAL BATTALION, IN THE EVENT
OF AN EMERGENCY, CAN BE INSTANTLY "FEDERALIZED."
ALL OF THE PERSONNEL OF THE 1ST BATTALION ARE MEMBERS OF THE
CALIFORNIA NATIONAL GUARD. FORTY PERCENT ARE "PART-TIME WARRIORS" WHO
FUNCTION ON MILITARY DRILL NIGHTS AND OTHER MILITARY TRAINING SESSIONS,
BUT 60 PERCENT ARE EMPLOYED AS FULL-TIME TECHNICIANS (SINCE THE MISSION
OF THE RESPONDENT REQUIRES FULL-TIME DUTY), THUS HAVING DUAL FUNCTIONS
AS NATIONAL GUARDSMEN AND AS CIVILIAN EMPLOYEES. AS FAR AS POSSIBLE AN
ATTEMPT IS MADE BY THE RESPONDENT TO MAKE THE CIVILIAN FUNCTION OF AN
EMPLOYEE COINCIDE WITH HIS MILITARY FUNCTION, BUT THIS IS NOT ALWAYS
POSSIBLE. ALSO, IT IS SIGNIFICANT THAT APPROXIMATELY 80 PERCENT OF THE
EMPLOYEES IN THE APPROPRIATE UNIT DISCUSSED BELOW HAVE NONCOMMISSIONED
OFFICER RANKS IN THE NATIONAL GUARD.
(B) CERTIFICATION OF THE COMPLAINANT
A CERTIFICATION OF REPRESENTATIVE WAS ISSUED TO THE COMPLAINANT ON
JUNE 25, 1970, BY THE AREA ADMINISTRATOR, SAN FRANCISCO AREA AFTER THE
COMPLAINANT HAD WON AN ELECTION CONDUCTED UNDER THE DIRECTION OF THE
ASSISTANT SECRETARY PURSUANT TO THE ORDER ON JUNE 20, 1970. THE
APPROPRIATE UNIT IS DESCRIBED AS "ALL NON-SUPERVISORY EMPLOYEES OF THE
1ST BATTALION, 250TH ARTILLERY, CALIFORNIA NATIONAL GUARD. EXCLUDED
FROM THE UNIT, IN ACCORD WITH SECTION 10(B) OF E.O. 11491, ARE
MANAGEMENT OFFICIALS, SUPERVISORS, GUARDS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
PROFESSIONAL EMPLOYEES." THE UNIT CONSISTS OF APPROXIMATELY 85 EMPLOYEES
EACH IN BATTERIES "A" AND "B" AND 15 EMPLOYEES IN HEADQUARTERS BATTERY.
AS NOTED ABOVE, ALL OF THE EMPLOYEES IN THE UNIT ALSO HAVE MILITARY
STATUS AS MEMBERS OF THE NATIONAL GUARD. (PRIOR TO THE ELECTION AND
CERTIFICATION AND THE INCEPTION OF THE ORDER, THE COMPLAINANT WAS
GRANTED FORMAL RECOGNITION UNDER THE PREVIOUS EXECUTIVE ORDER 10988.)
NO AGREEMENT HAS YET BEEN NEGOTIATED, AND THERE IS NO CONTENTION THAT
THERE IS AN "ESTABLISHED GRIEVANCE OR APPEALS PROCEDURE" WITHIN THE
MEANING OF SECTION 19(D) OF THE ORDER. /5/
3. ISSUE AS TO SUPERVISORY STATUS OF MASTER SERGEANT WILLIAM E.
DILENA
THE DETERMINATION AS TO WHETHER DILENA IS A SUPERVISOR IS OF BASIC
IMPORTANCE, SINCE IF HE IS A SUPERVISOR WITHIN THE MEANING OF SECTION
2(C) OF THE ORDER, THE RESPONDENT WOULD BE RESPONSIBLE FOR DILENA'S
ACTS. THIS FOLLOWS IN THAT THE ORDER SPECIFICALLY PROVIDES IN SECTION
10(B)(2) THAT A UNIT SHALL NOT BE ESTABLISHED IF IT INCLUDES ANY
SUPERVISOR, AND THE REASONS FOR THE POLICY OF SO EXCLUDING SUPERVISORS
IS WELL STATED IN THE STUDY COMMITTEE'S REPORT AND RECOMMENDATIONS ON
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE DATED AUGUST, 1969, AT
PARAGRAPH C, TITLED, "STATUS OF SUPERVISORS":
WE VIEW SUPERVISORS AS PART OF MANAGEMENT, RESPONSIBLE FOR
PARTICIPATING IN AND
CONTRIBUTING TO THE FORMULATION OF AGENCY POLICIES AND PROCEDURES AND
CONTRIBUTING TO THE
NEGOTIATION OF AGREEMENTS WITH EMPLOYEES. SUPERVISORS SHOULD BE
RESPONSIBLE FOR REPRESENTING
MANAGEMENT IN THE ADMINISTRATION OF AGENCY POLICY AND
LABOR-MANAGEMENT AGREEMENTS, INCLUDING
NEGOTIATED GRIEVANCE SYSTEMS, AND FOR EXPRESSION OF MANAGEMENT
VIEWPOINTS IN DAILY
COMMUNICATION WITH EMPLOYEES. IN SHORT, THEY SHOULD BE AND ARE PART
OF AGENCY MANAGEMENT AND
SHOULD BE INTEGRATED FULLY IN THAT MANAGEMENT. THUS, IF SUPERVISORS
ARE CONSIDERED PART OF AGENCY MANAGEMENT AND ARE RESPONSIBLE FOR
EXPRESSION OF MANAGEMENT VIEWPOINTS IN DAILY COMMUNICATION WITH
EMPLOYEES, AGENCY MANAGEMENT WOULD GENERALLY BE RESPONSIBLE FOR
EXPRESSIONS BY SUPERVISORS TO EMPLOYEES, WRITTEN OR ORAL, ESPECIALLY
EXPRESSIONS RELATING TO UNION MATTERS.
IN DISCUSSING DILENA'S STATUS, IT MUST BE REMEMBERED THAT HE WEARS
TWO HATS, ONE "MILITARY" AND THE OTHER "CIVILIAN." IN THE MILITARY HE IS
A MASTER SERGEANT ASSIGNED TO HEADQUARTERS BATTERY. /6/ THE RESPONDENT
ADMITS THAT ALL NONCOMMISSIONED OFFICERS ARE SUPERVISORS IN THE
MILITARY, AND THAT DILENA AS A NONCOMMISSIONED OFFICER IS A SUPERVISOR
IN THE MILITARY. THE SAME WOULD BE TRUE OF APPROXIMATELY 80 PERCENT OF
THE EMPLOYEES IN THE UNIT WHO ARE NON-COMMISSIONED OFFICERS IN THE
MILITARY. DILENA IS CURRENTLY THE FIRST SERGEANT OF HEADQUARTERS
BATTERY. AT THE TIMES MATERIAL HEREIN WHEN THE DISTRIBUTION OF
LITERATURE IN THE FIRST TWO OR THREE MONTHS OF 1970 OCCURRED, DILENA WAS
"OPERATIONS SERGEANT" AT HEADQUARTERS. ARMY REGULATION 6110201
(COMPLAINANT'S EXHIBIT "9") DESCRIBES THE DUTIES OF A SENIOR SERGEANT
SUCH AS DILENA AS FOLLOWS:
SERVES AS PRINCIPAL NONCOMMISSIONED OFFICER OF AN AIR DEFENSE
ARTILLERY BATTERY, BATTALION,
OR HIGHER UNIT. ASSISTS COMMANDER AND STAFF OFFICERS IN CONTINUOUS
APPRAISAL OF AIR DEFENSE
ARTILLERY OPERATIONS, TRAINING, AND INTELLIGENCE SITUATIONS.
SUPERVISES ACTIVITIES IN AADCP
TO INCLUDE TESTS OF COMMUNICATIONS FACILITIES AND PREPARATION AND
MAINTENANCE OF STATUS BOARD
AND SITUATION MAP. ASSISTS IN ESTABLISHMENT AND OPERATION OF FIRE
DIRECTION CENTER TO
FACILITATE USE OF AIR DEFENSE ARTILLERY IN SURFACE ROLE. SUPERVISES
SUBORDINATE
NONCOMMISSIONED OFFICERS IN MATTERS OF ADMINISTRATION AND
IMPLEMENTATION OF COMMAND
POLICIES. ADVISES AND ASSISTS COMMANDING OFFICER AND STAFF ON
MATTERS RELATIVE TO TROOP
DISCIPLINE, TRAINING, AND WELFARE. AS FIRST SERGEANT, ASSISTS
COMMANDER IN ACCOMPLISHING AND
COORDINATING OPERATION OF BATTERY MESS AND SUPPLY, AND SUPERVISES
COMPLETION OF BATTERY
ADMINISTRATION FUNCTIONS. AS SERGEANT MAJOR, CONDUCTS FIRST
SERGEANT'S OR SERGEANT MAJOR'S
CALL TO DISSEMINATE ORDERS AND ITEMS OF INFORMATION. THE SAME
REGULATION DESCRIBED ON "OPERATIONS SERGEANT," ENLISTED GRADE 8, "AS
PRINCIPAL NCO IN AIR DEFENSE ARTILLERY BATTALION, COMMAND POST
HEADQUARTERS SECTION (MISSILE MONITOR/MISSILE MENTOR) OR COMPARABLE
UNIT."
IN HIS CIVILIAN CAPACITY, DILENA IS EMPLOYED AS A FIRE CONTROL
MECHANIC, WG-12, AT HEADQUARTERS AND HAS BEEN SO EMPLOYED SINCE HIS
EMPLOYMENT APPROXIMATELY FOUR YEARS AGO. ALTHOUGH THERE IS SOME
EVIDENCE THAT HE WAS CLASSIFIED FOR A PERIOD OF TIME AS A CHIEF FIRE
CONTROL MECHANIC, HE NEVER PERFORMED THAT FUNCTION. DILENA WAS INCLUDED
IN THE APPROPRIATE UNIT, AND VOTED IN THE ELECTION WITHOUT CHALLENGE.
AS NOTED ABOVE, APPROXIMATELY 80 PERCENT OF THE UNIT EMPLOYEES ARE IN
THE SAME POSITION WITH RESPECT TO BEING A NONCOMMISSIONED OFFICER IN
MILITARY STATUS, AND A RANK AND FILE EMPLOYEE IN CIVILIAN STATUS.
THE RECORD INDICATES THAT AS A CIVILIAN DILENA HAS NO EMPLOYEES
REPORTING TO HIM. WITH RESPECT TO HIS JOB DESCRIPTION, COMPLAINANT'S
EXHIBIT "8," DILENA TESTIFIED THAT ONLY PARAGRAPH 6 OF THAT DESCRIPTION
IS APPLICABLE TO HIM. PARAGRAPH 6 READS, "AT GROUP/BATTALION LEVEL,
INCUMBENT ASSISTS THE GUIDED MISSILE FIRE CONTROL ASSISTANT IN HIS
DUTIES. PERFORMS A SECONDARY FUNCTION BY ASSISTING THE SECURITY OFFICER
IN ALL PHASES OF SECURITY ACTIVITIES. MAINTAINS A CENTRAL CLASSIFIED
FILE. RESPONSIBLE TO THE SECURITY CONTROL OFFICER FOR THE HANDLING AND
SAFEGUARDING OF CLASSIFIED DOCUMENTS, INCLUDING RECEIPT, DISPATCH,
LOGGING, DESTRUCTION, AND ACCOUNTING. MAKES FREQUENT INSPECTIONS OF THE
HEADQUARTERS AND BATTERIES TO INSURE COMPLIANCE WITH SECURITY CONTROL.
COORDINATES SCHEDULING OF VISITING INDIVIDUALS OR GROUPS WITH BATTERIES,
AND MAKES REPORTS ON FOREIGN NATIONAL'S VISITS."
DILENA DESCRIBES HIS DAY TO DAY DUTIES AS KEEPING THE STOCK OF
PUBLICATIONS, SUCH AS TRAINING MANUALS, UP TO DATE, FILING OFFICE
RECORDS, AND TO ACT AS DISINTERESTED AGENT UNDER THE SUPERVISION OF THE
SECURITY OFFICER IN THE DESTRUCTION (A PULVERIZING PROCESS) OF
CLASSIFIED MATERIEL. HE ALSO ON A PERIODIC BASIS ASSISTS THE OPERATIONS
OFFICER IN TRAINING OF PERSONNEL, WHICH ASSISTANCE CONSISTS PRINCIPALLY
OF FURNISHING THE PROPER TRAINING AIDS AND SEEING THAT SCHEDULES ARE
FOLLOWED. OTHER EMPLOYEES IN THE APPROPRIATE UNIT, SUCH AS SERGEANT
THOMAS GENTILE (WHO ALSO ACTS AS UNION STEWARD) ASSISTS IN TRAINING.
THE COMPLAINANT PLACES GREAT STRESS ON DILENA'S ADDITIONAL CIVILIAN
FUNCTION AS A MEMBER OF THE ORE (OPERATION READINESS EVALUATION TEAM) IN
URGING THAT HE IS A SUPERVISOR. THIS TEAM, APPROXIMATELY ONCE A MONTH,
EVALUATES A FIRING CREW. THE TEAM MAY CONSIST OF ANY OF THE PERSONNEL
IN THE OPERATIONS SECTION AT HEADQUARTERS, AND THE PERSONNEL MAY BE
ROTATED. THE TEAM, WHICH IS HEADED BY THE MISSILE SUPERVISOR, MAJOR
JONES, ALSO INCLUDES THE FIRE CONTROL ASSISTANT, WARRANT OFFICER ORLOFF,
ASSEMBLY TECHNICIAN, MASTER SGT. WILLIAM DILENA, OPERATIONS SERGEANT,
SGT. THOMAS GENTILE, RADAR OPERATOR, SPECIALIST 5 OR SGT. MADISON, MOST
OF THE MEMBERS OF THE TEAM WERE INCLUDED IN THE APPROPRIATE UNIT, AND AS
NOTED ABOVE SGT. GENTILE IS A UNION STEWARD. DILENA, USING MANUALS AND
A CHECK LIST, CHECKS AN OPERATOR FOR ERRORS. HE TELLS THE OPERATOR OF
HIS ERRORS AND REPORTS THE ERRORS TO THE CHIEF EVALUATOR, MAJOR JONES.
IT IS THEN THE FUNCTION OF THE BATTALION COMMANDER TO MAKE THE NECESSARY
CORRECTIONS AND ADJUSTMENTS. OTHER THAN NOTING ERRORS AND REPORTING
THEM, DILENA HAS NO AUTHORITY OVER THE OPERATOR AND HAS NO FUNCTION WITH
RESPECT TO PREPARING CAREER APPRAISALS OR EFFICIENCY RATINGS.
BASED ON THE ABOVE, IT IS CLEAR THAT AS A CIVILIAN DILENA HAS NO
AUTHORITY OVER ANY OF THE OTHER CIVILIAN EMPLOYEES AND MEETS NONE OF THE
SUPERVISORY CRITERIA OUTLINED IN SECTION 2(C) OF THE ORDER. WITH
RESPECT TO DILENA'S POSITION ON THE ORE TEAM WHICH APPEARS TO BE THE
CLOSEST TO A SUPERVISORY POSITION, NO INDEPENDENT JUDGMENT IS INVOLVED
AND DILENA FOLLOWS ROUTINE CHECK LISTS AND MANUALS. MOREOVER THIS
FUNCTION OCCURS ONLY APPROXIMATELY ONCE A MONTH. THE HEARING EXAMINER
THEREFORE CONCLUDES THAT HE IS NOT A SUPERVISOR WITHIN THE MEANING OF
THE ORDER. FURTHER, IF HE WERE CONSIDERED A SUPERVISOR FOR CIVILIAN
PURPOSES BECAUSE OF HIS MILITARY FUNCTIONS, APPROXIMATELY 80 PERCENT OF
THE UNIT WOULD ALSO BE SUPERVISORS.
4. DILENA'S ACTIVITIES AGAINST THE COMPLAINANT
AS NOTED ABOVE, BASICALLY THE COMPLAINANT ALLEGES THAT THE
DISSEMINATION OF THREE PIECES OF ANTI-UNION LITERATURE BY DILENA WAS
VIOLATIVE OF THE ORDER. COMPLAINANT'S COUNSEL STATED ON THE RECORD THAT
THE COMPLAINANT DOES NOT QUESTION THE CONTENT OF THE LITERATURE NOR IS
IT CONCERNED WITH THE DEGREE OF INFLAMMATORY REMARKS. /7/
(A) DILENA'S MEETING WITH LT. COL. LIBERATO
LT. COL. ANGELO C. LIBERATO IS BATTALION COMMANDER OF THE 1ST MISSILE
BATTALION, 250TH ARTILLERY. AS SUCH HE DIRECTS AND SUPERVISES THE
ACTIVITIES OF OVER 300 NATIONAL GUARDSMEN OF WHICH APPROXIMATELY 200 ARE
ALSO FULL-TIME TECHNICIANS.
ACCORDING TO COL. LIBERATO, ONE NIGHT AFTER DUTY HOURS, DILENA
VISITED HIM AT HIS OFFICE AND SHOWED HIM A DRAFT OF A LETTER ADDRESSED
TO THE EMPLOYEES. DILENA WANTED TO KNOW IF THERE WAS ANYTHING WRONG
WITH SENDING THE LETTER TO OTHER TECHNICIANS ELIGIBLE FOR MEMBERSHIP IN
THE UNION. LIBERATO TOLD DILENA THAT HE HAD THE RIGHT OF FREE SPEECH SO
LONG AS IT DID NOT SLUR THE NATIONAL GUARD, AND THAT UNDER EXECUTIVE
ORDER 10988 HE COULD NOT GIVE HIM ANY OPINION AS TO CONTENTS, OR AS TO
WHAT TO DO. AS FOR MODE OF DISTRIBUTION, DILENA INDICATED TO LIBERATO
THAT HE MIGHT DISTRIBUTE THE LETTER AT A UNION MEETING.
COL. LIBERATO WAS UNCLEAR AS TO THE DATE OF THIS MEETING AND
INDICATED THAT THE MEETING WAS HELD WHILE THE PREVIOUS EXECUTIVE ORDER,
10988, WAS IN EFFECT. HOWEVER, BASED ON DILENA'S TESTIMONY, AND THAT OF
COL. KELTNER, WHO WAS ASSIGNED BY THE CALIFORNIA ARMY NATIONAL GUARD TO
INVESTIGATE THE COMPLAINANT'S CHARGE OF UNFAIR LABOR PRACTICES, THIS
MEETING PROBABLY OCCURRED IN JANUARY, 1970.
ACCORDING TO DILENA, HE VISITED COL. LIBERATO IN JANUARY, 1970, IN
ORDER TO ASCERTAIN FROM HIS SUPERVISOR WHAT HIS RIGHTS WERE TO A DRAFT
OF HIS FIRST PIECE OF LITERATURE. IN SUBSTANCE LIBERATO ADVISED DILENA
THAT UNDER THE EXECUTIVE ORDER DILENA HAD THE RIGHT TO JOIN OR NOT JOIN;
AS A FREE AMERICAN DILENA HAD A RIGHT TO SAY WHAT HE WANTED, AND AS AN
ELIGIBLE EMPLOYEE DILENA HAD THE RIGHT TO EITHER GO ALONG OR NOT GO
ALONG WITH THE LABOR ORGANIZATION. DILENA FURTHER TESTIFIED THAT
LIBERATO GAVE NO ADVICE AS TO DISTRIBUTION OF THE LETTER.
(B) PREPARATION OF FIRST PIECE OF LITERATURE
DILENA DRAFTED ALL OF HIS LITERATURE WITH NO ASSISTANCE FROM ANYBODY.
THE FIRST PIECE OF LITERATURE, A 2-PAGE DOCUMENT, AS DISTRIBUTED,
FOLLOWS:
IN THE PAST, NOT MUCH HAS BEEN SAID ABOUT UNION ACTIVITIES ON OUR
SITES. I FEEL IT IS NOW
TIME TO JUMP OFF THE FENCE AND LAND ON ONE SIDE OR THE OTHER. I'VE
WAITED A LONG TIME TO GIVE
MY VIEWS AND I'VE CONSIDERED THE PROS AND CONS OF ANY UNION. SO FAR
I HAVE NOT BEEN CONVINCED
THAT THE UNION HAS DONE ANYTHING FOR THE TECHNICIAN NOR DO I FEEL
THEY WILL BE ABLE TO DO
ANYTHING OF IMPORT IN THE FUTURE. RECENTLY, I WAS INVITED TO ATTEND
A MEETING OF YOUR
LOCAL. THERE WERE A FEW GOOD IDEAS BUT I THINK THE WHOLE IDEA OF WHY
THE MEMBERS WERE THERE
WAS MISSED. THE ONLY REASON FOR THE UNION EXISTENCE (SIC) THAT I CAN
SEE OR THAT I HEAR IS
THAT THE TECHNICIAN WANTS A VOICE. I THINK THE MEMBERSHIP KNOWS AS
WELL AS I, THAT YOU DO
HAVE A VOICE, WITH OR WITHOUT A NAMED UNION. THERE HAS BEEN VERY
LITTLE ATTEMPT BY THE
TECHNICIAN TO VOICE HIS DISSATISFACTION AND BECAUSE HE IS
DISAPPOINTED AT THE FIRST STEP, HE
FAILS TO CARRY THE GRIEVANCE TO SATISFACTION. THE TECHNICIAN WHO IS
DISSATISFIED IS QUICK TO
BLAME MANAGEMENT FOR NOT LISTENING TO WORDS THAT ARE NEVER SPOKEN.
WITH A LITTLE INTESTINAL
FORTITUDE, OR GUTS IN PLAIN LANGUAGE, THERE WOULD BE NO NEED FOR
SOMEONE TO DO YOUR
TALKING. YOU HAVE A RESPONSIBILITY TO YOURSELVES SO WHY NOT DO THE
WORK YOURSELVES. YOU, AS
TECHNICIANS, HAVE ALWAYS BEEN A UNION. I FEEL YOU HAVE REALLY LET
YOURSELVES DOWN.
I CAN'T HELP FEELING THAT YOU ARE GOING TO BE RECEIVING LESS THAN YOU
DESERVE. WITH AN
OVERWHELMING MAJORITY OF VOTES IN THE LOS ANGELES AREA, I DON'T SEE
WHERE YOU ARE GETTING FAIR
REPRESENTATION. YOUR PROBLEMS ARE YOURS AND THEIRS ARE THEIRS. YOUR
PROBLEMS STEM FROM
POLICIES OF YOUR MANAGEMENT AND I DON'T SEE WHY YOUR (SIC) SHOULD
ACCEPT THEIR SOLUTIONS. I
HAVE ASKED FOR CLEARER PICTURE OF THE POWER STRUCTURE OF N-A-G-E BUT
SO FAR, I HAVEN'T BEEN
TOLD WHAT I WANT TO HEAR. THAT IS, A FAIR AND EQUAL VOICE FOR OUR
UNITS. THIS IS ONE OF THE
REASONS I DECLINE MEMBERSHIP AND BEING ABLE TO SPEAK TO YOU PROVES I
CAN BE HEARD WHEN I WANT
TO BE AND IF I WANT TO BE. I DON'T NEED ANYONE CONFUSING MY WORDS OR
THOUGHTS. I HAVE MANY
FRIENDS AMONG YOU WHO ARE MEMBERS OF N-A-G-E- AND THAT IS YOUR
PRIVILEGE. I ONLY WANT TO
PRESENT MY VIEWS IN THE HOPES THAT I CAN PUT THINGS IN ANOTHER
PERSPECTIVE AND GIVE ALL
TECHNICIANS SOMETHING TO THINK ABOUT (SIC)
ALL I HEAR FROM N-A-G-E IS "UNFAIR"-- "DIRTY POOL"-- WE'RE NOT
ACCUSING, "WE'RE ONLY
INVESTIGATION". THESE ARE ALL GENERAL TERMS THAT WOULD NOT BE USED
IF EVERY BODY (SIC) IN THE
SUPERVISORY POSITIONS WOULD COME OUT IN SUPPORT OF THAT UNION. OF
COURSE, THEY WANT THE
SUPERVISORS TO REMAIN IN A NEUTRAL POSITION, DON'T THEY??? I HAVE A
HOT FLASH FOR YOUR PAYING
MEMBERSHIP. YOU'RE NOT GOING TO GET A DAMN BIT MORE THAN A NON
MEMBER SO WHO IS PAYING FOR
WHAT? IF ANY ONE IN N-A-G-E, EITHER LOCALLY OR NATIONALLY, CAN SHOW
ME WHERE THE UNION MEMBER
HAS ANY MORE THAN THE NON MEMBER, I'D BE MORE THAN HAPPY TO PRINT IT
AS A REBUTTAL TO THIS
ARTICLE. AS FAR AS I CAN SEE, UNION MEMBERS ARE PAYING SOMEONE TO
FIGHT FOR PAY RAISES WE'VE
NEVER HAD TO ASK FOR, PER DIEM RATES THAT HAVE ALREADY BEEN APPROVED
AND OF WHICH ONLY ABOUT 1
IN 40 WILL BE ABLE TO USE AND CLOTHES YOU GET TO PAY FOR YOURSELVES.
THERE MUST BE SOMETHING
ABOUT THE UNIFORM THE UNION IS ASHAMED OF.
I'M QUITE SURE N-A-G-E CANNOT GUARANTEE THE MEMBERSHIP FULL TIME
EMPLOYMENT. IF D O D SAYS
CLOSE, WE CLOSE. I WONDER IF THEY MAY BE INTIMIDATED BY UNION
ACTIVITIES ON OUR SITES. TO BE
MORE TO THE POINT, I THINK OUR POSSIBILITIES OF EXPANSION IN THE AIR
DEFENSE PROGRAM HAS BEEN
NULLIFIED BY THE PROBLEMS CREATED BY UNIONS. WHO NEEDS ANY MORE
PROBLEMS. ARADCOM IS NOT IN
THE COLLECTIVE BARGAINING SYSTEM. IF WE GET TO BE TOO MUCH OF A
PROBLEM IT'S GOING TO BE SO
LONG CHARLIE BROWN. N-A-G-E COULDN'T STOP IT IN OXFORD, THEY
COULDN'T STOP STOP IT IN
FELICITY, THEY COULDN'T STOP IT IN KANSAS CITY, OR IN HAWAII, THEY
COULDN'T STOP IT IN BUFFALO
OR CINCINNATI AND FURTHERMORE, I'M NOT CONVINCED THEY EVEN TRIED. IT
HAS ALWAYS BEEN OUR
POLICY TO ABSORB AS MANY OF THE DISPLACED TECHNICIANS AS POSSIBLE.
IT IS NOT AN ORIGINAL IDEA
OF N-A-G-E.
THERE IS A UNION AMONG US SO I HOPE YOU WILL USE IT WITH DISCRETION
AND I HOPE YOU WILL USE
A LITTLE FORESIGHT (SIC) IN WHAT YOUR WANT. FOR STARTERS, I'D LIKE
TO SEE US EXPAND IN THIS
PROGRAM. I'D LIKE TO SEE MORE JOB SECURITY, I'D LIKE TO SEE MORE
FUNDS FOR SCHOOLS IN A
TECHNICIAN STATUS. I'LL BE WORRYING ABOUT MY COFFEE BREAKS WHEN THEY
TAKE THEM AWAY. I'LL BE
ASKING FOR ALL THE PRIVILEGES (SIC) I NOW HAVE, WHEN THEY NO LONGER
EXIST. THE POINT IS, I'LL
BE ASKING FOR ME. IT REALLY DOESN'T COST YOU A DIME TO PRESENT YOUR
GRIEVANCES ABOUT POLICIES
OR WORKING CONDITIONS. YOU HAVE THAT RIGHT AS GOVERNMENT EMPLOYEES.
FAMILIARIZE YOURSELVES
TO THE TECHNICIANS MANUAL NGR 51. YOU WOULD BE SURPRISED TO FIND OUT
HOW MUCH YOU ARE
PAYING-- FOR WHAT YOU ALREADY HAVE.
WITHIN ONE WEEK AFTER HIS CONVERSATION WITH LT. COL. LIBERATO, IN
JANUARY, 1970, DILENA PURCHASED STENCILS AT A STATIONERY STORE, AND
TYPED THE STENCILS FOR HIS FIRST DISTRIBUTION AT HIS MOTHER'S HOME ON A
TYPEWRITER BELONGING TO HIS MOTHER. HE FIRST WENT TO THE Y.M.C.A. IN
HAYWARD, CALIFORNIA, IN ORDER TO GET THE STENCIL REPRODUCED BUT WAS
ADVISED THAT THERE WAS NO EQUIPMENT AVAILABLE. HE THEN PREVAILED UPON A
FEMALE FRIEND, LINDA PELLIGRINI, TO REPRODUCE THE LITERATURE. MISS
PELLIGRINI DID SO AND A GIRL WORKING IN THE LIBRARY AT THE CHABOT
CONVALESCENT HOME LOCATED NEAR SAN FRANCISCO, AT WHICH MISS PELLIGRINI
WAS ALSO EMPLOYED, DID THE WORK FOR HER. MISS PELLIGRINI'S TESTIMONY
CONFLICTED WITH DILENA'S TO THE EXTENT THAT SHE STATED THIS WORK WAS
DONE IN THE SUMMER OF 1970, AND SHE WAS NOT CLEAR WHETHER DILENA
FURNISHED THE MATERIAL OTHER THAN THE TYPED STENCIL. (DILENA STATES
THAT THE PAPER CAME FROM MISS PELLIGRINI.) FURTHER, SHE TESTIFIED ONLY
WITH RESPECT TO THE ONE OCCASION OF REPRODUCTION FOR DILENA WHEN, AS
WILL APPEAR BELOW, DILENA STATES THAT SHE HANDLED THE REPRODUCTION FOR
HIM WITH RESPECT TO ALL THREE PIECES OF LITERATURE. MISS PELLIGRINI WAS
A VERY CONFUSED AND FRIGHTENED WITNESS WHOM THE COMPLAINANT CONTACTED
FOR THE FIRST TIME THE NIGHT BEFORE SHE TESTIFIED. HOWEVER, HE
TESTIMONY WAS SUFFICIENT TO CONVINCE THE HEARING EXAMINER THAT DILENA
WAS WHOLLY CREDIBLE WITH RESPECT TO THE MEANS OF PREPARING THE
LITERATURE, AND THERE WAS NO EVIDENCE PRESENTED TO REBUT DILENA'S
VERSION OF THE PREPARATION OF THE LITERATURE. /8/
(C) DISTRIBUTION TO EMPLOYEES OF FIRST PIECE OF LITERATURE
DILENA RECEIVED FROM MISS PELLIGRINI APPROXIMATE-Y 75 COPIES OF HIS
FIRST PIECE OF LITERATURE.
ACCORDING TO DILENA, ON A WEDNESDAY DRILL NIGHT IN LATE JANUARY, 1970
(ESTABLISHED BY OTHER WITNESSES AS BEING JANUARY 28, 1970), A GROUP OF
MEN FROM BATTERY "B" REPORTED TO HEADQUARTERS AT THE PRESIDIO IN SAN
FRANCISCO FOR MEDICAL EXAMINATIONS. DILENA, WHO WAS ON MILITARY STATUS
AT THE TIME, HANDED A COPY OF THE LITERATURE TO A TECHNICIAN, ROBERT
STACY, WHO WAS ALSO ON MILITARY DUTY FROM BATTERY "B." DILENA DESCRIBED
STACY AS BEING A BUS DRIVER. STACY SCANNED THE LETTER IN DILENA'S
PRESENCE. STACY INDICATED THAT HE THOUGHT THE LITERATURE SHOULD BE
DISTRIBUTED AND AGREED TO TAKE IT BACK TO HIS UNIT (BATTERY "B").
DILENA HANDED STACY THE REMAINING COPIES. DILENA NOTED THAT SPECIALIST
4 FRED WEBB OF BATTERY "B" READ THE LETTER OVER STACY'S SHOULDER.
SPECIALIST 4 ROBERT STACY SUBSTANTIALLY CONFIRMS DILENA'S VERSION.
STACY'S CIVILIAN CLASSIFICATION IS "TRACKING OPERATOR," BUT HE
PRINCIPALLY PERFORMS THE FUNCTIONS OF MAINTENANCE MAN AT BATTERY "B."
STACY WAS INCLUDED IN THE APPROPRIATE UNIT. HE OCCASIONALLY DRIVES A
BUS, AND THAT NIGHT HE DROVE A GROUP OF MEN FROM BATTERY "B" TO
HEADQUARTERS FOR PHYSICALS. STACY WAS STANDING IN LINE FOR HIS PHYSICAL
WHEN DILENA PASSED. STACY ASKED DILENA FOR A COPY OF THE LETTER HE
PREPARED, HAVING HEARD THROUGH HEARSAY THAT THERE WAS SUCH A LETTER. AS
STACY WAS READING THE LETTER, SPECIALIST 4 FRED WEBB OF BATTERY "B"
ASKED TO READ THE LETTER. DILENA TOLD STACY THAT HE HAD MORE COPIES AND
ASKED IF STACY WOULD TAKE THEM BACK TO THE BATTERY. SINCE STACY WAS
PICKING UP THE DISTRIBUTION FOR THE BATTERY THAT NIGHT, HE AGREED TO
TAKE THESE BACK. STACY HAD A LARGE BUNDLE OF MATERIAL TO TAKE BACK FOR
DISTRIBUTION, SO WEBB OFFERED TO CARRY THE MATERIAL ON THE BUS.
SPEC. 4 FRED WEBB, WHO IS ALSO A CIVILIAN TECHNICIAN INCLUDED IN THE
UNIT, TESTIFIED THAT AFTER HE FINISHED HIS PHYSICAL THAT NIGHT HE WALKED
INTO SERGEANT MAJOR BOSTIC'S OFFICE TO CONFER WITH HIM. DILENA WANDERED
INTO BOSTIC'S OFFICE AND REQUESTED THAT WEBB TAKE THE DISTRIBUTION BACK
TO THE BATTERY. WEBB TOOK THE DISTRIBUTION OUT OF THE BATTERY "B"
DISTRIBUTION BOX IN BOSTIC'S OFFICE WHICH INCLUDED DILENA'S LITERATURE.
WEBB CARRIED THE DISTRIBUTION BACK ON THE BUS AND GAVE IT TO SERGEANT
BROWN, THE BATTERY CLERK.
THERE IS CONSIDERABLE TESTIMONY THAT EMPLOYEES OF BATTERY "B"
SUBSEQUENTLY RECEIVED THE LITERATURE IN THEIR RESPECTIVE "PIGEON HOLES"
FROM WHICH THEY RECEIVE DISTRIBUTION AT THE BATTERY, OR WERE HANDED
COPIES BY OTHERS.
WHILE THERE IS SOME CONFLICT BETWEEN STACY'S VERSION AND WEBB'S
VERSION, IT IS UNNECESSARY TO RESOLVE THE CONFLICT. THE IMPORTANT FACT
BORNE OUT BY ALL THE TESTIMONY IS THAT MASTER SERGEANT DILENA WHILE IN
MILITARY STATUS SENT HIS LITERATURE TO BATTERY "B" PRESUMABLY FOR
DISTRIBUTION TO THE TECHNICIANS AT THAT BATTERY.
THE COMPLAINANT PLACES GREAT STRESS IN URGING THAT AGENCY MANAGEMENT
IS LIABLE FOR DILENA'S MATERIAL ON THE FACT THAT DILENA'S FIRST PIECE OF
LITERATURE WAS DISTRIBUTED AT BATTERY "B" THROUGH THE DISTRIBUTION
SYSTEM. THE RECORD INDICATES THAT SGT. BROWN, WHO IS BATTERY CLERK OF
BATTERY "B," IS ALSO EMPLOYED AS A CIVILIAN FIRE CONTROL TECHNICIAN, AND
WAS INCLUDED IN THE APPROPRIATE UNIT. ACCORDING TO THE RECORD THERE ARE
NO FIRM REGULATIONS GOVERNING THE USE OF THE DISTRIBUTION SYSTEM, AND
SGT. BROWN HAS CONSIDERABLE DISCRETION. ITEMS, SUCH AS CHRISTMAS
GREETINGS, HAVE BEEN DISTRIBUTED THROUGH THE SYSTEM, AND IN FACT AT A
TIME IN THE PAST, NOT SPECIFIED, LITERATURE OF THE COMPLAINANT WAS
DISTRIBUTED THROUGH THE SYSTEM.
(D) PREPARATION AND DISTRIBUTION OF DILENA'S SECOND PIECE OF
LITERATURE
DILENA PREPARED HIS SECOND PIECE OF LITERATURE, A 2-PAGE DOCUMENT, IN
THE SAME MANNER AS HIS FIRST PIECE. THE TEXT OF HIS SECOND PIECE
FOLLOWS:
RECENTLY, I WROTE AN ARTICLE ON UNION ACTIVITIES WITHIN OUR UNITS.
IN IT, I TRIED TO
PRESENT MY VIEWS AND WHY I THINK THE UNIONS HAVE NO PLACE IN OUR
PROGRAM. I HAD HOPES THE
ARTICLE WOULD WAKE SOME PEOPLE UP AND STOP THE "ME-TOO"ISM..(SIC) I
ALSO HAD HOPES IT WOULD
AFFECT THE TECHNICIANS WHO DID NOT AGREE WITH ME, IN SUCH A MANNER AS
TO STAND UP AND SAY TO
ME "I DON'T AGREE WITH YOU AND THIS IS WHY . . .". APPARENTLY, (SIC)
NONE OF THIS
HAPPENED. I RECEIVED MANY CALLS FROM BOTH, MEMBERS AND NON-MEMBERS
WHO AGREED WITH THE
ARTICLE. WHAT HAPPENED THE THE PEOPLE WHO DID (SIC) NOT AGREE??
I KNOW FOR A FACT, THE UNION WAS A BIT UPSET AT THE ARTICLE. I MUST
HAVE HIT A FEW
SENSITIVE POINTS. I KNOW FOR FOR A FACT, THE UNION FILED A COMPLAINT
AGAINST THE ARTICLE FOR
WHICH I MUST ANSWER THROUGH OFFICIAL CHANNELS. B-I-G D-E-A-L. MY
CONCERN IS NOT THAT THEY
FILED THE CHARGE OR THAT I HAVE TO EXPLAIN MY ACTIONS. THE FACT THAT
THE UNION WAS UNFAIR TO
ME IS OF MORE CONCERN. SO, WHAT'S GOOD FOR THE GOOSE IS GOOD FOR THE
GANDER. I HAVE A FEW
RIGHTS OF MY OWN AND I INTEND TO USE THEM. BE PREPARED FOR MOST
ANYTHING. THE FACT REMAINS,
I WAS NOT TREATED FAIRLY BY THE UNION AND SOME OF IT'S MEMBERS.
THE LOCAL IT'S-SELF (SIC) WAS RECENTLY RESENTED A COMPLAINT BY ONE OF
IT'S MEMBERS BECAUSE
THE UNION ALLEGEDLY ILLUSTRATED HIS PEOPLE AS BEING LAZY. HOORAY FOR
YOU. YOU THOUGHT THEY
WERE WRONG AND YOU SAID SO. I THOUGHT THEY WERE WRONG IN THEIR
EXPLANATION. THE LOCAL UNION
APPOINTED AN "INVESTIGATING COMMITTEE" TO LOOK INTO THE MATTER. THE
"INVESTIGATING
COMMITTEE" REPORTED BACK AT THE NEXT MEETING AND SAID IT HAD
CONTACTED ONE OF THE
REPRESENTATIVES OF THE UNION ABOUT THE MATTER. THE EXPLANATION THEY
RECEIVED WAS A HEDGING
ONE AND DID NOT ANSWER THE ORIGINAL QUESTION. EVERYBODY, AND I MEAN
EVERYBODY PRESENT AT THE
MEETING VOTED A "YES" OR, AS FAR AS I'M CONCERNED, "ME-TOO" TO ACCEPT
THE EXPLANATION AS TO
THE INTENT OF THE ILLUSTRATION. INCIDENTALLY, THE MEMBER WHO
PRESENTED THE COMPLAINT WAS NOT
ABLE TO ATTEND THE MEETING AND DID NOT HEAR OR VOTE ON THE
EXPLANATION. THE LOCAL UNION,
BECAUSE THE ORIGINATOR OF THE ARTICLE WAS A MEMBER OF THE UNION AND
AN OFFICIAL, CLOSED THE
MATTER WITHOUT USING THE SAME CHANNELS THEY USED AGAINST MY ARTICLE.
AN ANIMAL OF ANY SORT,
BE IT A SLEEPING CAT, DOG, COW OR HORSE COULD HAVE BEEN USED TO
ILLUSTRATE THE SO CALLED POINT
OF MEANING. THE UNION, APPARENTLY BECAUSE I AM NOT A MEMBER, DID NOT
AFFORD ME THE SAME
COURTESY. THEY IMMEDIATELY COUNTERED WITH "UNFAIR", AGAIN, NO
"INVESTIGATING COMMITTEE" TO
ASK "WHAT DID YOU MEAN" AND NO INDIVIDUAL OF THE MEMBERSHIP CONTACTED
ME ON THE ARTICLE TO ASK
ME MY MEANING. A COMPLAINT WAS FILED AGAINST THE ARTICLE BECAUSE I
DID NOT AGREE WITH THEIR
PURPOSE AND BECAUSE I SAID IT. GOD HELP US IF THIS IS AN EXAMPLE OF
THE KIND OF FREEDOM AND
RIGHTS THE UNION WANTS FOR YOU.
TO JOIN A UNION, NOT KNOWING WHY BUT BECAUSE SOMEONE ELSE DID IS
RATHER PATHETIC. TO JOIN
A UNION AND NOT UNDERSTAND ALL THAT'S INVOLVED COULD BE DISASTROUS.
THERE WERE SOME WHO DID
NOT BELIEVE I WAS INTELLIGENT ENOUGH TO CONJURE (SIC) UP AN ARTICLE
OF
THAT APTITUDE. I'M SORRY I DIDN'T GET DOWN TO YOUR LEVEL, BUT DON'T
JUDGE EVERYBODY BY YOUR
OWN INTELLIGENCE, ESPECIALLY SOMEONE YOU HAVEN'T EVEN BOTHERED TO TRY
TO UNDERSTAND. I'M SURE
THE MEMBERS OR NON-MEMBERS WHO DO KNOW ME, ALTHOUGH DO NOT
NECESSARILY (SIC) AGREE WITH ME,
UNDERSTAND I AM TRYING TO HELP IN MY OWN WAY.
IF THERE WAS EVER A CALL TO ME FOR HELP-- BY ANY INDIVIDUAL-- IN
EITHER UNIT-- THAT I
DIDN'T DO EVERYTHING I COULD TO SOLVE THEIR PROBLEM, I'D LIKE TO KNOW
ABOUT IT. IT HASN'T
MATTERED WHETHER YOU ARE CATHOLIC, JEWISH OR PROTESTANT. IT HASN'T
MATTERED WHETHER YOU ARE
WHITE, RED, BLACK OR OTHERWISE. IT HASN'T MATTERED WHETHER YOU ARE A
UNION MEMBER OR NOT AND
I WILL CONTINUE TO DO SO. THIS WAS THE PRIME REASON FOR ACCEPTING
THE JOB I HAVE. THOSE WHO
HAVE TRIED TO UNDERSTAND ME AND THOSE WHO DO UNDERSTAND ME, KNOW MY
PRIME CONCERN IS
"YOU" REGARDLESS OF POSITION OR UNIT. I HAVE MADE MYSELF CONCERNED
ENOUGH TO LOOK INTO
MATTERS CONCERNING THE UNION AND THE TECHNICIAN, TO INSURE IN MY OWN
MIND, YOU ARE GETTING THE
BETTER END OF THE DEAL. IF I THOUGHT YOU WERE, I'D JOIN THE UNION
MYSELF AND I'D WORK AS HARD
FOR IT AS I DO AGAINST IT. I WILL CONTINUE TO SAY "NOT-ME" UNTIL I
THINK THE UNION CAN DO
SOMETHING OF VALUE FOR ALL OF US. I WILL CONTINUE TO EXERCISE MY
RIGHT OF DISSENT. THE NEXT
ARTICLE IS FORTHCOMING. IF THE UNION WANTS TO FILE ANOTHER PETTY
COMPLAINT, THEN SO BE
IT. THE UNION MUST BE PRETTY WEAK IN IT'S PRINCIPLES IF ONE PERSON
CAN GET THEM SO UPSET
BECAUSE HE DOESN'T AGREE WITH THEM. PERHAPS IT'S BECAUSE THEY
HAVEN'T GOT A STRONG ENOUGH
FOUNDATION WITHIN THEMSELVES THAT MAKES THEM FEEL SO INSECURE. WHO
KNOWS?????
I HAVE A FEW QUESTION (SIC) FOR ALL OF YOU AND A CLOSING STATEMENT
AND THEN YOU CAN
CONSIDER:
A. WHEN WAS THE LAST TIME YOU PRESENTED A LIST OF GRIEVANCES TO YOUR
SUPERVISOR?
B. WHEN WAS THE LAST TIME YOU TALKED TO YOUR SUPERVISOR ABOUT
POLICIES?
C. WHAT HAVE YOU DONE, PERSONALLY, TO IMPROVE WORKING CONDITIONS?
D. HOW MANY OF YOU THINK THE SUPERVISOR CAN PLEASE EVERYBODY?
TRY AND CONSIDER THE POSITION AND RESPONSIBILITY OF YOUR SUPERVISORS.
IT DOESN'T STAND TO
REASON THEY WOULD PURPOSELY CREATE HARDSHIPS ON YOU WHEN THEY DEPEND
ON YOU TO GET THE JOB
DONE. IF A HARDSHIP IS CREATED UNKNOWINGLY, IT DOESN'T TAKE TOO MUCH
TO GET THE PROBLEM
RESOLVED. TAKE IT TO HIM. TALK TO HIM. THIS IS YOUR RIGHT. IF
YOUR (SIC) NOT SATISFIED,
THEN USE A MEDIATOR OF YOUR CHOICE. ABOVE ALL, BE SURE THE PROBLEM
IS PRESENTED IN IT'S
ORIGINAL CONTEXT AND NOT BLOWN ALL OUT OF PERSPECTIVE.
THIS LITERATURE WAS DISTRIBUTED BY DILENA THROUGH THE UNITED STATES
MAIL, APPROXIMATELY TWO OR THREE WEEKS AFTER DISTRIBUTION OF HIS FIRST
PIECE. HE MAILED IT TO TECHNICIANS EMPLOYED AT BATTERY "B" WHO HE
BELIEVED WERE MEMBERS OF THE COMPLAINANT. (THE RECORD REVEALS THAT
APPROXIMATELY 84 PERCENT OF THE COMPLAINANT'S MEMBERS ARE FROM BATTERY
"B.") APPROXIMATELY 35 OR 40 COPIES WERE THUS DISTRIBUTED. DILENA
OBTAINED ADDRESSES FROM A PERSONAL LIST OF TECHNICIANS WHICH HE HAD
COMPILED OVER THE YEARS, FROM TELEPHONE DIRECTORIES, OR FROM A LIST
WHICH ALL TECHNICIANS HAVE WHICH DILENA DESIGNATED AS A "RECALL ROSTER."
DILENA STATES THAT THIS LIST WAS AVAILABLE FOR USE IN SENDING CHRISTMAS
CARDS AND OTHER SUCH MATERIAL. THE PRESIDENT OF THE LOCAL, ENRICO
PRIOETTI, WHO IS A MEMBER OF THE NATIONAL GUARD AND EMPLOYED AS A
CIVILIAN TECHNICIAN, CONFIRMED THAT THE TECHNICIANS HAVE PERSONNEL
ROSTERS WHICH ARE TO BE USED FOR EMERGENCIES, AND FOR OFFICIAL MATTERS
AS IT IS TIED IN WITH THE "ALERT AND MOBILIZATION PLAN."
THERE IS NO EVIDENCE ON THE RECORD OF RESTRICTIONS BY THE RESPONDENT
ON THE USE OF PERSONNEL LISTS SU B AS THE USE MADE BY DILENA. HOWEVER,
INSTRUCTIONS CONCERNING EMPLOYEE ORGANIZATIONS ISSUED BY THE CALIFORNIA
NATIONAL GUARD ON MARCH 20, 1969 (COMPLAINANT'S EXHIBIT 16), WHICH WAS
POSTED AT THE RESPONDENT'S FACILITIES, PROVIDE THAT IT IS NOT NECESSARY
(FOR TECHNICIANS) TO COMPLY WITH REQUESTS FROM EMPLOYEE ORGANIZATIONS
FOR LISTS OF HOME ADDRESSES OR TELEPHONE NUMBERS OF TECHNICIANS, AS THIS
WOULD BE AN UNWARRANTED INTRUSION INTO THE PERSONAL PRIVACY OF
TECHNICIANS. FURTHER, IT PROVIDES THAT LISTS GIVING NAMES, POSITION
TITLES, GRADES, SALARIES AND DUTY STATIONS OF TECHNICIANS WILL BE
PROVIDED TO EMPLOYEE ORGANIZATIONS BY HEADQUARTERS UPON REQUEST. THE
EXHIBIT REVEALS THAT SUCH LISTS WERE PROVIDED TO THE COMPLAINANT AND THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES. IT IS CLEAR THAT THESE
INSTRUCTIONS APPLIED ONLY TO THE FURNISHING OF LISTS TO OUTSIDERS, AND
PLACED NO LIMITATIONS ON PERSONAL USE OF LISTS.
(E) PREPARATION AND DISTRIBUTION OF DILENA'S THIRD PIECE OF
LITERATURE
DILENA PREPARED HIS THIRD PIECE OF LITERATURE IN THE SAME MANNER AS
HIS FIRST PIECE. THE TEXT OF DILENA'S THIRD PIECE OF LITERATURE
FOLLOWS:
IN TRYING TO KEEP ALL PERSONNEL INFORMED OF WHAT'S HAPPENING, I
THOUGHT IT NECESSARY TO
WRITE WHAT POSSIBLY WILL BE MY LAST ARTICLE. I THINK IT'S NECESSARY
TO LET ALL EMPLOYEES KNOW
WHAT WAS RESOLVED BY THE COMPLAINT THAT WAS FILED BY THE UNION, WHY
THE COMPLAINT WAS FILED
AND WHY I RETALIATED WITH "UNFAIR".
FIRST OF ALL, THE INVESTIGATION ONLY SERVED TO CONFIRM THE FACT THAT
I AM ABLE TO EXPRESS
MYSELF AND MY BELIEFS. IF I HAD BEEN TOLD THAT WHAT I DID WAS WRONG,
I SURELY WOULDN'T KEEP
PUTTING ARTICLES OUT. WHAT WAS CONFUSING TO ME WAS THE FACT THAT THE
ONLY COMPLAINT THAT WAS
REGISTERED WAS AGAINST THE MANNER IN WHICH I DISTRIBUTED THE ARTICLE.
TO BE SPECIFIC,
SOMEWHERE ALONG THE LINE SOMEONE ASSUMED IT WAS DONE THROUGH "NORMAL
GOVERNMENT
DISTRIBUTION". IF WHOEVER WROTE THE COMPLAINT UNDERSTOOD WHAT
CONSTITUTES NORMAL GOVERNMENT
DISTRIBUTION, THEY WOULD HAVE NEVER DONE SO TO BEGIN WITH. SECONDLY,
I COULDN'T UNDERSTAND
WHY THE OBJECTION IN THE FIRST PLACE. THE UNION HAS, IN THE PAST,
SENT ITEMS ADVERTISING AND
ENLISTING MEMBERSHIP TO THIS ORGANIZATION AND REQUESTED IT BE
DISTRIBUTED THROUGH THIS
HEADQUARTERS TO BOTH UNITS. I PERSONALLY PUT EQUAL AND ADEQUATE
AMOUNTS TO BOTH UNITS IN
DISTRIBUTION AND IT WASN'T QUESTIONED BY EITHER HEADQUARTERS OR THE
UNION. BECAUSE THE UNION
OBJECTED TO MY METHOD OF GETTING THE WORD TO YOU, I MAILED THE NEXT
ARTICLE TO MOST OF
YOU. BY MAILING THE ARTICLE, I USED THE EXACT SAME METHOD AS THE
UNION HAS USED ON MORE THAN
ONE OCCASION. I COULD HAVE REPEATED MY FIRST METHOD BUT TO HAVE
ANOTHER COMPLAINT FILED FOR
THE SAME THING WOULD ONLY BE WASTING THE TIME AND MAN HOURS OF MANY
PEOPLE.
I HAVE BEEN MADE TO REALIZE THAT YOU MAY FEEL I HAVE INFRINGED ON
YOUR PRIVACY. IF YOU
FEEL THAT I HAVE, I WILL APOLOGIZE FOR THAT BUT ONLY FOR THAT.
IT SEEMS TO ME, THAT TO BETTER UNDERSTAND WHAT THE SITUATION IS
AROUND YOU, YOU MUST FIRST
CONSIDER THE SITUATION FROM ALL ANGLES. YOU MUST AT LEAST CONSIDER
ALL POINTS AND WEIGH THE
GOOD AGAINST THE BAD. THE SCALES WILL EITHER GO TOWARDS SECURITY,
PROSPERITY AND JOB
SATISFACTION OR IT WILL GO TOWARDS INSECURITY, RESENTMENT AND
EVENTUALLY A LACK OF CONCERN TO
RESPONSIBILITY. IT'S NOT ENOUGH TO ONLY THINK ABOUT WHAT YOU WANT
TODAY. THE IMPORTANT THING
IS TO THINK ABOUT WHAT YOU WANT IN 2, 5 OR EVEN 15 YEARS FROM NOW AND
WORK IN THE DIRECTION
WHICH WILL BEST OBTAIN THESE GOALS. I STRONGLY BELIEVE THE PATH THAT
LEADS TO THE SEPARATION
BETWEEN TECHNICIANS AND SUPERVISORS IS NOT THE WAY TO A VERY
PROMISING FUTURE. CO-OPERATION
(SIC) FROM ALL EMPLOYEES, BE THEY SUPERVISORS OR NOT, IS NECESSARY TO
MAINTAIN GOOD WORKING
CONDITIONS. THE UNION HAS PRESENTED WHAT THEY CONSIDER TO BE GOOD
POINTS OF THEIR LABOR
ORGANIZATION. I HAVE PRESENTED WHAT I THINK ARE BAD POINTS OR POINTS
THAT SHOULD BE CAREFULLY
CONSIDERED. RIGHT NOW, I FEEL THERE ARE NOT ENOUGH GOOD POINTS IN
FAVOR OF THE UNION.
I THINK IT IS NECESSARY FOR ALL EMPLOYEES WHO ARE ELIGIBLE TO BE
UNION MEMBERS TO BE FULLY
AWARE OF THEIR RIGHTS. I THINK ALL EMPLOYEES SHOULD BE FAMILIAR WITH
THE EXECUTIVE ORDER
#11491 TO BETTER UNDERSTAND YOUR POSITION WHETHER YOU ARE A UNION
MEMBER OR NOT. SOME OF THE
MORE INTERESTING INFORMATION CONTAINED IN THIS ORDER PERTAINS TO SUCH
ITEMS AS:
A. WHAT THE UNION CAN AND CANNOT DO
B. WHAT THE MANAGEMENT CAN AND CANNOT DO
C. WHAT RIGHTS THE EMPLOYEES HAVE IN GRIEVANCE MATTERS, UNION
MEMBERS OR NOT
D. WHAT MUST BE DONE BEFORE EXCLUSIVE REPRESENTATION IS ACCORDED A
UNION
E. THE STATUS OF OTHER TYPES OF RECOGNITION ACCORDED A UNION
F. WHAT INTEREST THE UNION MUST REPRESENT
G. WHAT INTEREST THE UNION MUST NOT REPRESENT SOMETHING ELSE THAT I
THINK IS OF ABSOLUTE
NECESSITY IS TO KNOW WHAT IS THE AGREEMENT THE UNION HAS PRESENTED
FOR NEGOTIATION. IF YOU
KNOW THE ANSWERS TO ITEMS A. THRU G. AND YOU ARE SURE THAT YOU ARE
BEING REPRESENTED IN THE
AGREEMENT, THEN AND ONLY THEN ARE YOU READY TO MAKE YOUR OWN DECISION
TO ACCEPT OR REJECT
MEMBERSHIP. WHAT YOU DECIDE IS YOUR RIGHT BUT DON'T MAKE THE MISTAKE
OF SEPARATING YOURSELF
FROM YOUR FELLOW EMPLOYEE BECAUSE HE DOESN'T AGREE WITH YOU. THIS IS
THE QUICKEST WAY TO
ELIMINATE YOUR FUTURE IN THE AIR DEFENSE PROGRAM. IF YOU ARE A
MEMBER, DON'T VOTE ON ANY
ISSUE YOU HAVEN'T HAD TIME TO FULLY CONSIDER. DEBATE IS THE BEST
THING THERE IS FOR DECIDING
ANY ISSUE. THIS IS WHAT I HAVE TRIED TO LEAD ALL EMPLOYEES INTO
DOING. NOTHING MORE--
NOTHING LESS.
IF THERE IS INTEREST ENOUGH FOR SOMEONE TO LISTEN TO ME, VERBALLY, I
WILL GLADLY TALK TO
THEM AT ANY TIME THAT IS AGREEABLE TO THEM. I WOULD PREFER TO DO
THIS BY SPEAKING TO YOU IN A
GROUP OR GROUPS.
I HAVE NO HARD FEELINGS TOWARDS THE UNION MEMBERS, AT LEAST NOT TO
THE PEOPLE WHO ARE WISE
ENOUGH TO CONSIDER BOTH SIDES. IF YOU ARE NOT WILLING TO CONSIDER
BOTH SIDES, YOU ARE MISSING
THE WHOLE POINT OF WHAT HAS BEEN GOING ON. YOU MUST BE ABLE TO
ACCEPT THE FACT THAT FOR EVERY
ACTION THERE WILL BE A REACTION. IT MAY BE TO YOUR LIKING OR NOT.
THIS PIECE OF LITERATURE WAS DISTRIBUTED BY DILENA PRIOR TO MARCH 1,
1970. ON A SATURDAY AFTERNOON WHEN DILENA WAS NOT ON DUTY, HE TRAVELED
TO "B" BATTERY AND PLACED 40 OR 50 COPIES ON SERGEANT BROWN'S DESK.
LATER THAT EVENING HE TRAVELED TO BATTERY "A" AND PLACED 20 OR 30 COPIES
ON A TABLE LOCATED UNDER A BULLETIN BOARD USED BY THE COMPLAINANT FOR
ITS LITERATURE.
THE RECORD REVEALS THAT THERE IS NO PROHIBITION AGAINST NATIONAL
GUARDSMEN VISITING FACILITIES DURING THEIR OFF-DUTY HOURS, OR TALKING TO
PERSONNEL ON DUTY SO LONG AS THERE IS NO INTERFERENCE WITH THEIR WORK.
LOCAL PRESIDENT PRIOETTI TESTIFIED THAT UNION MATERIAL IS DISTRIBUTED
ON THE BATTERY SITES BY MEMBERS OR PLACED ON BULLETIN BOARDS. HIS
"FEELING" IS THAT IT CAN'T BE DONE DURING WORKING HOURS WHICH WOULD
HAMPER A PERSON'S WORK. THERE IS NO EVIDENCE OF ANY PROHIBITION BY THE
RESPONDENT AGAINST DISSEMINATION OF LITERATURE ON ITS PROPERTY EITHER
DURING OR OFF OF WORKING HOURS, ALTHOUGH WITH RESPECT TO THE
SOLICITATION OF MEMBERSHIP OR DUES, AND OTHER INTERNAL BUSINESS OF A
LABOR ORGANIZATION, SECTION 20 OF THE ORDER PROVIDES THAT IT SHALL BE
CONDUCTED DURING THE NON-DUTY HOURS OF THE EMPLOYEES CONCERNED. THIS
RESTRICTION, HOWEVER, DOES NOT APPEAR TO APPLY TO ACTIVITIES OF
INDIVIDUAL EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS TO ENGAGE IN
ACTIVITY EITHER FOR OR AGAINST THE UNION.
CONCLUSIONS
SECTION 1. OF THE ORDER GUARANTEES THAT "EACH EMPLOYEE OF THE
EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT HAS THE RIGHT, FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION OR TO REFRAIN FROM ANY SUCH ACTIVITY, AND EACH EMPLOYEE
SHALL BE PROTECTED IN THE EXERCISE OF THIS RIGHT." CLEARLY, IT FOLLOWS
THAT THESE RIGHTS INCLUDE THE RIGHT OF AN EMPLOYEE TO STATE HIS VIEWS ON
BEHALF OF A LABOR ORGANIZATION, OR, IF HE CHOOSES, TO STATE HIS VIEWS
AGAINST A LABOR ORGANIZATION. THE ASSISTANT SECRETARY RECOGNIZED THESE
RIGHTS IN A RECENT DECISION WHERE HE HELD THAT IT WAS VIOLATIVE OF
SECTION 19(A)(1) OF THE ORDER FOR AN ACTIVITY TO PROMULGATE RULES WHICH
WOULD PREVENT EMPLOYEES FROM ENGAGING IN SOLICITATION ON BEHALF OF A
LABOR ORGANIZATION ON THE ACTIVITY'S PREMISES IN NONWORKING TIME, AND
FROM DISTRIBUTING UNION LITERATURE IN NONWORKING AREAS OF THE ACTIVITY.
CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1. AS AN EMPLOYEE INCLUDED IN THE
UNIT, DILENA WAS EXERCISING HIS RIGHTS GUARANTEED BY THE ORDER BY HIS
EXPRESSION OF VIEWS AGAINST THE COMPLAINANT. HIS LITERATURE BORE HIS
NAME AND THERE WAS NOTHING IN THE LITERATURE ITSELF WHICH WOULD IMPLY
THAT DILENA WAS EXPRESSING VIEWS OF THE RESPONDENT, AND THE EMPLOYEES
COULD THEMSELVES EVALUATE THE CONTENTS.
AS THE HEARING EXAMINER HAS PREVIOUSLY FOUND THAT DILENA IS NOT A
SUPERVISOR IN HIS CIVILIAN CAPACITY AND AS HE WAS INCLUDED IN THE
APPROPRIATE UNIT, THE VIEWS EXPRESSED WERE HIS OWN AND CANNOT BE IMPUTED
TO AGENCY MANAGEMENT ON SUPERVISORY GROUNDS. NOR, UNDER THE NOVEL
CIRCUMSTANCES OF THIS CASE, CAN THE FACT THAT HE IS ALSO A
NONCOMMISSIONED OFFICER, MAKE THE RESPONDENT RESPONSIBLE FOR HIS
ACTIVITY. INASMUCH AS 80 PERCENT OF THE APPROPRIATE UNIT WERE
NONCOMMISSIONED OFFICERS TO SAY THAT THE RESPONDENT IS LIABLE FOR
DILENA'S ACTS ON THAT GROUND WOULD MEAN THAT 80 PERCENT OF THE UNIT
WOULD NOT BE ABLE TO EXERCISE THEIR RIGHTS TO ENGAGE IN ACTIVITY ON
BEHALF OF THE COMPLAINANT OR AGAINST THE COMPLAINANT.
THE HEARING EXAMINER ALSO CANNOT CONCLUDE THAT THE RESPONDENT IS
LIABLE UNDER THE ORDER BECAUSE SOME OF DILENA'S ACTIVITY IN DISTRIBUTING
HIS LITERATURE WAS ENGAGED IN WHILE HE WAS ON MILITARY STATUS. THE
TOTAL APPROPRIATE UNIT IS IN THE MILITARY AND TO HOLD THAT THE
RESPONDENT HAS ENGAGED IN UNFAIR LABOR PRACTICES WHERE EMPLOYEES IN THE
UNIT FAIL TO RESTRICT THEIR ACTIVITY TO TIMES WHEN THEY WERE NOT ON
MILITARY STATUS WOULD BE UNREALISTIC. IT WOULD BE UNREASONABLE TO
REQUIRE THAT THE NONCOMMISSIONED OFFICERS IN THE UNIT, IN VIEW OF THEIR
DUAL CAPACITY, DISCIPLINE THEMSELVES TO RESTRICT THE EXERCISE OF THEIR
RIGHTS UNDER THE ORDER EITHER FOR OR AGAINST THE LABOR ORGANIZATION
DURING THE HOURS THAT THEY WERE NOT ON DUTY AS A MEMBER OF THE NATIONAL
GUARD.
THE HEARING EXAMINER ALSO CONCLUDES THAT THE RESPONDENT DID NOT
PARTICIPATE IN ACTIVITIES WITH RESPECT TO DILENA'S LITERATURE WHICH
WOULD IMPUTE RESPONSIBILITY TO THE RESPONDENT. IN THE EARLY
CONVERSATION BETWEEN DILENA AND LT. COL. LIBERATO WHICH WAS INITIATED BY
DILENA, LIBERATO MERELY EXPRESSED HIS VERSION OF DILENA'S RIGHTS UNDER
THE ORDER. HE MADE NO SUGGESTIONS OR COMMENTS AS TO THE TEXT OF
DILENA'S FIRST MESSAGE, OR AS TO THE METHODS OF DISTRIBUTION. THERE IS
NO EVIDENCE OF ANY ASSISTANCE WHATSOEVER BY AGENCY MANAGEMENT IN THE
PREPARATION OF DILENA'S LITERATURE. /11/
AS FOR THE VARIOUS METHODS USED FOR THE DISTRIBUTION OF THE
LITERATURE, THERE IS NO SHOWING THAT THE METHODS USED WERE CONTRARY TO
ANY OF THE COMPLAINANT'S REGULATIONS. MOREOVER, EVEN IF THEY WERE,
THERE IS NO SHOWING IN THE RECORD THAT ACKNOWLEDGED SUPERVISORS OR OTHER
MEMBERS OF AGENCY MANAGEMENT WERE AWARE OF THE METHODS USED FOR
DISTRIBUTION PRIOR TO THE ACTUAL DISTRIBUTIONS. THE USE OF THE
DISTRIBUTION SYSTEM FOR THE FIRST DISTRIBUTION WAS DILENA'S IDEA AND
THOSE THAT PARTICIPATED WERE PERSONNEL INCLUDED IN THE UNIT WHO WERE
ELIGIBLE TO VOTE IN THE ELECTION, SUCH AS DILENA, BROWN, STACY, AND
WEBB. THE USE OF THE ROSTER ISSUED TO PERSONNEL BY THE RESPONDENT IN
OBTAINING ADDRESSES OF EMPLOYEES FOR MAILING THE SECOND DISTRIBUTION WAS
DILENA'S OWN CHOICE WITH NO CONSULTATION WITH OR KNOWLEDGE OF AGENCY
MANAGEMENT. LIKEWISE ON THE THIRD DISTRIBUTION, THE PLACING OF THE
MATERIAL ON THE RESPONDENT'S PREMISES WAS DILENA'S OWN IDEA, AND THERE
IS NO SHOWING OF PARTICIPATION BY SUPERVISORS OR OTHER AGENCY MANAGEMENT
PERSONNEL IN THIS DISTRIBUTION.
IN VIEW OF THE ABOVE, IT IS CONCLUDED THAT THE COMPLAINANT HAS NOT
MET THE BURDEN REQUIRED BY SECTION 203.14 OF THE RULES AND REGULATIONS
OF THE ASSISTANT SECRETARY OF PROVING BY A PREPONDERANCE OF THE EVIDENCE
THAT THE RESPONDENT HAS VIOLATED SECTION 19(A)(1) OF THE ORDER. AS NO
EVIDENCE WAS PRESENTED WHICH COULD CONCEIVABLY BE CONSTRUED AS BEING
VIOLATIVE OF SECTION 19 (A)(2) OF THE ORDER, THE COMPLAINANT HAS ALSO
NOT MET ITS BURDEN OF PROOF WITH RESPECT TO THAT ALLEGATION OF THE
COMPLAINT.
RECOMMENDATION
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS IT IS
RECOMMENDED THAT THE COMPLAINT AGAINST RESPONDENT, CALIFORNIA ARMY
NATIONAL GUARD, 1ST BATTALION, 250TH ARTILLERY AIR DEFENSE, BE DISMISSED
IN ITS ENTIRETY.
DATED AT WASHINGTON, D.C.
MARCH 23, 1971.
/1/ WITH RESPECT TO THE FILING OF BRIEFS WITH THE HEARING EXAMINER,
THE DATE FOR RECEIPT OF SUCH BRIEFS WAS SET AT THE HEARING FOR FEBRUARY
26, 1971. A TIMELY REQUEST FOR EXTENSION OF TIME TO FILE WAS RECEIVED
FROM COMPLAINANT, WHICH REQUEST WAS CONCURRED IN BY RESPONDENT, AND THE
TIME FOR RECEIPT OF BRIEFS WAS EXTENDED TO MARCH 10, 1971. ON MARCH 10,
1971, THE DATE THE BRIEFS WERE DUE, THE HEARING EXAMINER RECEIVED A
PHONE CALL FROM COMPLAINANT'S COUNSEL SEEKING A FURTHER SHORT EXTENSION
AND IN WHICH HE OFFERED TO OBTAIN APPROVAL FROM RESPONDENT. THE HEARING
EXAMINER DENIED THE REQUEST AS BEING UNTIMELY UNDER SECTION 203.21 OF
THE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY. RESPONDENT'S
BRIEF WAS RECEIVED BY THE HEARING EXAMINER ON MARCH 12, 1971, TWO DAYS
LATE. THE POSTMARK ON THE ENVELOPE CONTAINING RESPONDENT'S BRIEF, AS
WELL AS RESPONDENT'S SERVICE SHEET, SHOW THAT THE BRIEF WAS MAILED BY
REGULAR MAIL ON MARCH 9, 1971, IN SACRAMENTO, CALIFORNIA, WHICH WOULD
CONSTITUTE TOO LATE A MAILING TO PROVIDE FOR THE RECEIPT OF THE BRIEF IN
WASHINGTON, D.C., BY CLOSE OF BUSINESS MARCH 10, 1971. ACCORDINGLY, THE
HEARING EXAMINER IS NOT CONSIDERING RESPONDENT'S BRIEF. SEE SECS.
203.21 AND 205.1 OF THE RULES AND REGULATIONS.
/2/ SEC. 2(F) OF THE ORDER DEFINED "AGENCY MANAGEMENT" AS MEANING
"THE AGENCY HEAD AND ALL MANAGEMENT OFFICIALS, SUPERVISORS, AND OTHER
REPRESENTATIVES OF MANAGEMENT HAVING AUTHORITY TO ACT FOR THE AGENCY ON
ANY MATTERS RELATING TO THE IMPLEMENTATION OF THE AGENCY
LABOR-MANAGEMENT RELATIONS PROGRAM ESTABLISHED UNDER THIS ORDER."
/3/ SECTION 2(C) OF THE ORDER DEFINES A SUPERVISOR AS FOLLOWS:
"SUPERVISOR" MEANS AN EMPLOYEE HAVING AUTHORITY, IN THE INTEREST OF AN
AGENCY, TO HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE, DISCHARGE,
ASSIGN, REWARD, OR DISCIPLINE OTHER EMPLOYEES, OR RESPONSIBLITY TO
DIRECT THEM, OR TO EVALUATE THEIR PERFORMANCE, OR TO ADJUST THEIR
GRIEVANCES, OR EFFECTIVELY TO RECOMMEND SUCH ACTION, IF IN CONNECTION
WITH THE FOREGOING THE EXERCISE OF AUTHORITY IS NOT OF A MERELY ROUTINE
OR CLERICAL NATURE, BUT REQUIRES THE USE OF INDEPENDENT JUDGMENT.
/4/ ALTHOUGH THE COMPLAINT ALSO ALLEGES A VIOLATION OF SECTION 19
(A)(2), NO EVIDENCE WAS PRESENTED WHICH COULD CONCEIVABLY CONSTITUTE
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT, AND IN DUE COURSE THE HEARING EXAMINER WILL
MAKE AN APPROPRIATE RECOMMENDATION WITH RESPECT TO THAT ALLEGATION.
/5/ CF. REPORT ON A DECISION OF THE ASSISTANT SECRETARY PURSUANT TO
SECTION 6 OF EXECUTIVE ORDER 11491, REPORT NUMBER 25, MARCH 1, 1971.
/6/ DILENA WAS IN THE REGULAR ARMY FOR 8 YEARS PRIOR TO 1960 AND IN
1969 HE JOINED THE NATIONAL GUARD.
/7/ IN FACT, IT IS NOTED THAT SUBSEQUENT TO THE DISSEMINATION OF THE
LITERATURE IN QUESTION THE COMPLAINANT WAS SUCCESSFUL IN WINNING THE
ELECTION REFERRED TO ABOVE.
/8/ COLONEL KELTNER, WHO INVESTIGATED THE COMPLAINANT'S UNFAIR LABOR
PRACTICE CHARGE, IN HIS REPORT OF INVESTIGATION CONFIRMS THAT DILENA WAS
SOLELY RESPONSIBLE FOR THE PREPARATION OF THE LITERATURE BUT DIFFERS IN
MINOR RESPECTS IN THAT HE REPORTS THE LITERATURE WAS REPRODUCED AT THE
HAYWARD YMCA.
/10/ APPARENTLY THE COMPLAINT AND INVESTIGATION DISCUSSED BY DILENA
REFERRED TO THE UNFAIR LABOR PRACTICE FILED WITH THE RESPONDENT WHICH
WAS INVESTIGATED BY COLONEL KELTNER PER ORDERS OF THE CALIFORNIA
NATIONAL GUARD. THE COMPLAINANT ALLEGES IN THE BODY OF THE COMPLAINT
THAT THE INVESTIGATION RESULTED IN A "WHITE WASH." HOWEVER THE EVIDENCE
INDICATES, AND IN VIEW OF THE FINDINGS INFRA, THE INVESTIGATION WAS
REASONABLE.
/11/ THOUGH DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ARE NOT
CONTROLLING, THE ASSISTANT SECRETARY HAS RECOGNIZED THAT IT IS
APPROPRIATE TO TAKE INTO ACCOUNT THE EXPERIENCE GAINED FROM THE PRIVATE
SECTOR UNDER THE LABOR-MANAGEMENT RELATIONS ACT, AS AMENDED. CHARLESTON
NAVAL SHIPYARD, A/SLMR NO. 1. THE NATIONAL LABOR RELATIONS BOARD HAS
RECOGNIZED THAT EMPLOYEES HAVE THE RIGHT TO ENGAGE IN ANTI-UNION
ACTIVITY. IN A CASE WHERE EMPLOYEES DISTRIBUTED ANTI-UNION LITERATURE
THE BOARD FOUND THAT THE EMPLOYEE DID NOT VIOLATE THE ACT WHERE THE
LITERATURE CLEARLY IDENTIFIED THE AUTHORS AND THE EMPLOYEES COULD
EVALUATE THE CONTENTS, EVEN WHERE THE EMPLOYER PAID FOR THE REPRODUCTION
OF THE LITERATURE. RANCO, INC., 109 NLRB 998.
1 A/SLMR 46; P. 240; CASE NO. 46-1847(RO); MAY 27, 1971.
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
A/SLMR NO. 46
THE PETITIONER, LOCAL 2842, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE), SOUGHT TO REPRESENT A UNIT OF ALL
NONSUPERVISORY EMPLOYEES, INCLUDING PROFESSIONAL EMPLOYEES, IN THE
PROCUREMENT OFFICE OF THE HEADQUARTERS OF THE NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION (NASA), WASHINGTON, D.C. ALTERNATIVELY, THE AFGE
REQUESTED A UNIT LIMITED TO THE PROFESSIONAL EMPLOYEES IN THE
PROCUREMENT OFFICE. NASA CONTESTED THE APPROPRIATENESS OF THE UNIT
SOUGHT BY THE AFGE, CONTENDING THAT PROCUREMENT OFFICE PERSONNEL DID NOT
POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST APART FROM OTHER
HEADQUARTERS EMPLOYEES.
THE AFGE CONTENDED THAT THE PROCUREMENT OFFICE PERSONNEL WERE
FUNCTIONALLY DISTINCT FROM OTHER HEADQUARTERS EMPLOYEES IN THAT NO ONE
ELSE IN HEADQUARTERS IS ENGAGED IN THE SPECIFIC FUNCTIONS OF WRITING
PROCUREMENT REGULATIONS AND GIVING "PROCUREMENT" APPROVAL TO CONTRACTS.
THE ASSISTANT SECRETARY FOUND THAT WHILE IT IS CORRECT THAT NO ONE ELSE
IN HEADQUARTERS DOES "EXACTLY" WHAT PROCUREMENT PERSONNEL DO, THE
PROCUREMENT FUNCTION IS PART OF A CONTINUOUS, INTERRELATED PROCESS
WHEREIN THE PROCUREMENT OFFICE EMPLOYEES AND EMPLOYEES OF SEVERAL OTHER
HEADQUARTERS OFFICES INTERACT WITH EACH OTHER TO ACCOMPLISH THE
ACQUISITION OF MATERIALS AND SERVICES FOR THE NASA.
WITH RESPECT TO THE QUESTION OF WHETHER PROCUREMENT OFFICE PERSONNEL
HAVE A DISTINCT COMMUNITY OF INTEREST FROM OTHER HEADQUARTERS PERSONNEL,
THE ASSISTANT SECRETARY NOTED THAT ALL HEADQUARTERS PERSONNEL HAVE
IDENTICAL WORKING CONDITIONS; THERE IS INTERCHANGE OF PERSONNEL BETWEEN
PROCUREMENT AND OTHER HEADQUARTERS OFFICES; PROCUREMENT PERSONNEL WORK
IN CLOSE PROXIMITY WITH OTHER EMPLOYEES AND HAVE SUBSTANTIAL ON-JOB
CONTACT; THERE ARE NO SKILLS AND TRAINING UNIQUE TO PROCUREMENT
PERSONNEL; AND JOB CLASSIFICATIONS LOCATED IN THE PROCUREMENT OFFICE
ARE ALSO TO BE FOUND IN OTHER HEADQUARTERS OFFICES.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
EMPLOYEES IN THE UNIT SOUGHT BY THE PETITION, OR BY THE AFGE'S
ALTERNATIVE POSITION, DID NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST AND THAT SUCH A UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATION. ACCORDINGLY, HE ORDERED THAT THE
PETITION BE DISMISSED.
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
AND
LOCAL 2842, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICERS EARL T. HART AND DOW E.
WALTER. THE HEARING OFFICERS' RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY ALL
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, LOCAL 2842, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF:
ALL NONSUPERVISORY GS EMPLOYEES, INCLUDING PROFESSIONAL EMPLOYEES,
/2/ IN THE PROCUREMENT
OFFICE /3/ (CODE KD) OF THE NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION, WASHINGTON, D.C.,
EXCLUDING ALL SUPERVISORS, MANAGEMENT EXECUTIVES, TEMPORARIES,
GUARDS, PERSONNEL ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
EXCLUDING EMPLOYEES IN
THE PROCUREMENT OFFICE WHO NOW OR IN THE FUTURE WOULD BE REPRESENTED
BY THE AMERICAN
FEDERATION OF TECHNICAL ENGINEERS, AFL-CIO, LOCAL 9, IN THE UNIT FOR
WHICH THAT UNION HAS
BECOME CERTIFIED AS EXCLUSIVE REPRESENTATIVE BY THE DEPARTMENT OF
LABOR ON MAY 26, 1970. /4/
THE ACTIVITY CONTENDS THAT THE UNIT PETITIONED FOR BY THE AFGE IS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION PURSUANT TO THE
REQUIREMENTS OF SECTION 10(B) OF THE EXECUTIVE ORDER.
THE EMPLOYEES IN THE UNIT SOUGHT BY THE AFGE ARE EMPLOYED IN THE
ACTIVITY'S PROCUREMENT OFFICE, WHICH IS A PORTION OF ITS HEADQUARTERS
FACILITY. THE HEADQUARTERS OF THE ACTIVITY IS INVOLVED IN THE
ADMINISTRATION AND MANAGEMENT OF THE NATION'S SPACE PROGRAM.
ORGANIZATIONALLY THE HEADQUARTERS IS DIVIDED BETWEEN "FUNCTIONAL" AND
"PROGRAMMATIC" OFFICES. THREE OF THE FUNCTIONAL OFFICES, I.E.,
ADMINISTRATION, INDUSTRY AFFAIRS /5/ AND UNIVERSITY AFFAIRS, ARE GROUPED
TOGETHER TO CONSTITUTE THE OFFICE OF ORGANIZATION AND MANAGEMENT. THE
OFFICE OF INDUSTRY AFFAIRS IS DIVIDED INTO FOUR FUNCTIONAL OFFICES WHICH
ARE THE INVENTION AND CONTRIBUTION BOARD, PROCUREMENT, RELIABILITY AND
QUALITY ASSURANCE, AND LABOR RELATIONS.
THE EMPLOYEE COMPLEMENT OF THE PROCUREMENT OFFICE CONSISTS OF 76
NONSUPERVISORY EMPLOYEES, 56 OF WHICH ARE ALLEGED TO BE PROFESSIONAL.
/6/ THE PROCUREMENT OFFICE HAS ITS OWN SUPERVISORY STRUCTURE HEADED BY
THE DIRECTOR OF PROCUREMENT WHO REPORTS TO THE HEAD OF THE OFFICE OF
INDUSTRY AFFAIRS. PROCUREMENT OFFICE PERSONNEL ARE LOCATED IN EACH OF
THREE ADJACENT BUILDINGS WHEREIN THE HEADQUARTERS IS HOUSED. WHILE
PROCUREMENT OFFICE PERSONNEL DO NOT SHARE OFFICE SPACE WITH OTHER
HEADQUARTERS PERSONNEL, THE OFFICES WHICH HOUSE THEM ARE SCATTERED
THROUGHOUT THE THREE BUILDINGS AND ARE INTERSPERSED WITH ALL OF THE
OTHER HEADQUARTERS OFFICES. OFFICES CONTAINING PROCUREMENT PERSONNEL
ARE NOT SO DESIGNATED BY DOOR SIGNS OR ON THE BUILDING DIRECTORIES, BUT
THE TELEPHONE DIRECTORY HAS THE PROCUREMENT CODE "KD" NEXT TO THE NAME
OF ALL PROCUREMENT OFFICE PERSONNEL. ALL OF THE APPROXIMATELY 1800
HEADQUARTER'S EMPLOYEES, INCLUDING THOSE IN PROCUREMENT, ARE UNDER A
CENTRALIZED ACTIVITY PERSONNEL OFFICE. FURTHER, ALL HEADQUARTER'S
PERSONNEL HAVE THE SAME HOURS AND WORKING CONDITIONS, INCLUDING
CENTRALIZED HIRING, PAYROLL, TRAVEL, MEDICAL CENTER PRIVILEGES, CREDIT
UNION, AND MERIT PROMOTION SYSTEM. TRAINING IS CENTRALIZED THROUGHOUT
THE HEADQUARTERS AND WHEN PROCUREMENT RELATED COURSES ARE OFFERED THEY
ARE OPEN TO AND TAKEN BY PERSONS OTHER THAN THOSE ASSIGNED TO THE
PROCUREMENT OFFICE.
THE RECORD REFLECTS THAT THE PROCUREMENT OFFICE HAS A TWO-FOLD
FUNCTION. ONE IS DESIGNATED BY THE ACTIVITY AS A "STAFF" FUNCTION AND
CONCERNS THE ESTABLISHING OF THE POLICIES AND PROCEDURES WHICH GOVERN
THE PLACEMENT OF CONTRACTS, AND THE SUBSEQUENT CONTINUOUS REVIEW OF THE
PROCUREMENT OPERATIONS TO DETERMINE THAT PROPER PROCEDURES ARE BEING
FOLLOWED. THE SECOND FUNCTION, WHICH THE ACTIVITY DESIGNATED AS
"OPERATIONAL," FLOWS FROM THE FACT THAT THE DIRECTOR OF THE PROCUREMENT
OFFICE MUST APPROVE CONTRACTS WHICH ARE ABOVE A CERTAIN DOLLAR AMOUNT.
THE PROCUREMENT OFFICE IS NOT DIRECTLY INVOLVED IN THE LETTING OF
CONTRACTS FOR THE ACQUISITION OF COMMODITIES OR SERVICES. RATHER THE
PROCUREMENT NEED IS GENERATED BY THE NEEDS OF ONE OF THE "PROGRAM"
OFFICES. AT THE HEADQUARTERS, A CONTRACT TO ACCOMPLISH AN ACQUISITION
FOR ONE OF THE "PROGRAM OFFICES IS WRITTEN, NEGOTIATED, AND AWARDED AND
ADMINISTERED BY THE HEADQUARTERS CONTRACTS DIVISION, WHICH IS NOT PART
OF THE PROCUREMENT OFFICE. THE RULE OF THE PROCUREMENT OFFICE
THROUGHOUT THIS PROCESS IS TO ESTABLISH THE REGULATIONS AND PROCEDURES
THAT GOVERN THE PROGRAM OFFICE AND HEADQUARTERS CONTRACT DIVISION.
THUS, AFTER NEGOTIATIONS ARE COMPLETED, THE APPROVAL OF THE DIRECTOR OF
THE PROCUREMENT OFFICE IS REQUIRED IF THE CONTRACT EXCEEDS SPECIFIED
DOLLAR GUIDELINES. FINALLY, THE PROCUREMENT OFFICE CONTINUOUSLY REVIEWS
THE CONTRACT TO MAKE SURE THAT PROCUREMENT REGULATIONS ARE BEING
FOLLOWED.
THE EVIDENCE DISCLOSES THAT IN THE PERFORMANCE OF THEIR DUTIES
PROCUREMENT OFFICE PERSONNEL HAVE BOTH DIRECT CONTACT AND FUNCTIONAL
CONTACT WITH EMPLOYEES FROM OTHER HEADQUARTER'S OFFICES. UPON REQUEST,
PROCUREMENT PERSONNEL ACTUALLY PARTICIPATE IN THE NEGOTIATING OF
CONTRACTS. ATTORNEYS ASSIGNED TO THE OFFICE OF THE GENERAL COUNSEL GIVE
LEGAL ADVICE TO THE PROCUREMENT OFFICE AND SOME 90 TO 95 PERCENT OF ALL
REGULATIONS ISSUED BY THE PROCUREMENT OFFICE MUST BE CLEARED THROUGH THE
GENERAL COUNSEL. DISPUTES ON THE APPLICATION OF PROCUREMENT-WRITTEN
REGULATIONS ARE HEARD BY A CONTRACT ADJUSTMENT BOARD. THE OFFICE OF THE
PATENT COUNSEL DRAFTS REGULATIONS ON PATENT MATTERS THAT MUST BE
IMPLEMENTED BY THE PROCUREMENT OFFICE. REVIEWS AND AUDITS SIMILAR TO
THOSE PERFORMED BY THE PROCUREMENT OFFICE ARE SIMILARLY PERFORMED BY THE
AUDIT DIVISION AND THE AUDIT DIVISION ISSUES REGULATIONS NOT UNCOMMON
FOR PROCUREMENT PERSONNEL TOBE "CO-LOCATED," I.E., TEMPORARILY ASSIGNED,
TO A PROGRAM OFFICE FOR THE PURPOSE OF GIVING PROCUREMENT GUIDANCE. IN
SUCH A SITUATION, THE PROCUREMENT EMPLOYEE BEING CO-LOCATED IS
PHYSICALLY SITUATED IN THE PROGRAM OFFICE BUT REMAINS UNDER THE
SUPERVISION OF THE PROCUREMENT OFFICE SUPERVISORY STRUCTURE.
THE NONCLERICAL COMPLEMENT OF THE PROCUREMENT OFFICE IS MADE UP OF 5
JOB CLASSIFICATIONS, I.E., PROCUREMENT ANALYST, CONTRACT SPECIALIST,
INDUSTRY PROPERTY SPECIALIST, ATTORNEY AND STATISTICIAN. PROCUREMENT
ANALYST IS BY FAR THE LARGEST CLASSIFICATION IN PROCUREMENT AND THERE
ARE NO OTHER PERSONS WITH THAT SPECIFIC CLASSIFICATION IN OTHER
HEADQUARTER OFFICES. HOWEVER, THERE ARE CONTRACT SPECIALISTS, INDUSTRY
PROPERTY SPECIALISTS AND ATTORNEYS LOCATED IN HEADQUARTERS OFFICES OTHER
THAN PROCUREMENT. THE 1 STATISTICIAN IN PROCUREMENT IS THE ONLY PERSON
SO CLASSIFIED IN HEADQUARTERS. IN ADDITION, THERE ARE 7 CLERICAL
CLASSIFICATIONS IN PROCUREMENT AND ALL 7 CAN BE FOUND THROUGHOUT THE
HEADQUARTERS.
THE EVIDENCE REVEALS THAT THERE IS A CONSIDERABLE AMOUNT OF TRANSFER
AND INTERCHANGE AMONG PROCUREMENT EMPLOYEES AND OTHER ACTIVITY
EMPLOYEES. REDUCTIONS IN FORCE DURING 1970 RESULTED IN 5 PERSONS FROM
OTHER HEADQUARTERS' OFFICES MOVING INTO PROCUREMENT, 4 OF WHOM WERE
PROFESSIONALS. APART FROM SUCH SITUATIONS, DURING 1969-70 A TOTAL OF 21
PROCUREMENT VACANCIES WERE POSTED ON A HEADQUARTERS-WIDE BASIS.
SIXTY-FOUR APPLICATIONS WERE FILED FOR THOSE VACANCIES, 31 OF WHICH CAME
FROM PERSONS OUTSIDE OF PROCUREMENT. THOSE POSTINGS RESULTED IN 9
PERSONS, 8 CLERICALS AND 1 PROFESSIONAL, MOVING INTO PROCUREMENT FROM
OTHER ACTIVITY OFFICES. DURING THE SAME PERIOD, 1 CLERICAL AND 3
PROFESSIONALS MOVED FROM PROCUREMENT INTO OTHER HEADQUARTERS OFFICES.
IN ADDITION TO THESE PERMANENT TRANSFERS, THE RECORD REFLECTS THAT IT IS
COMMON FOR PROCUREMENT CLERICALS TO BE "LOANED" TO OTHER OFFICES.
THE AFGE CONTENDS THAT THE UNIT SOUGHT IN ITS PETITION IS
"FUNCTIONALLY DISTINCT" FROM OTHER HEADQUARTERS EMPLOYEES. IT ARGUES
THAT THE ACQUISITION OR PROCUREMENT OF COMMODITIES IS A PRIMARY TASK OF
THE HEADQUARTERS AND THAT NO ONE ELSE IN HEADQUARTERS PERFORMS THE
IDENTICAL FUNCTIONS OF PROCUREMENT OFFICE PERSONNEL.
SECTION 10(B) OF THE EXECUTIVE ORDER PROVIDES FOR THE ESTABLISHING OF
UNITS ON A "FUNCTIONAL" BASIS WHEN SUCH UNITS WILL ENSURE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE EMPLOYEES CONCERNED AND
WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
WHILE THE AFGE'S CONTENTION THAT NO ACTIVITY EMPLOYEE DOES EXACTLY WHAT
PROCUREMENT OFFICE PERSONNEL DO MAY BE TECHNICALLY ACCURATE, SUCH FACT,
STANDING ALONE, DOES NOT NECESSARILY RENDER A UNIT APPROPRIATE. THE
ACQUISITION OF MATERIALS IS A PROCESS REQUIRING THE INTERACTION OF A
CONSIDERABLE NUMBER OF DEPARTMENTS. THIS INTERACTION IS NOT FOUND
MERELY ON AN ORGANIZATIONAL CHART, BUT, RATHER, THE RECORD REVEALS THAT
THERE IS PHYSICAL INTERACTION BETWEEN EMPLOYEES IN THE CLAIMED UNIT AND
OTHER ACTIVITY EMPLOYEES. THUS, THE PROCUREMENT OFFICE WRITES
REGULATIONS USED BY OTHER HEADQUARTERS OFFICES IN DEVELOPING AND LETTING
PROCUREMENT CONTRACTS AND IT THEREAFTER REVIEWS THE CONTRACTS OF OTHER
HEADQUARTERS OFFICES FOR PROCEDURE CONFORMANCE. I DO NOT VIEW THIS
SITUATION AS CONSTITUTING THE TYPE OF CLEAR DEMARCATION OF FUNCTION
ENVISIONED BY SECTION 10(B) OF THE ORDER. /7/
FUNCTIONAL DISTINCTNESS CANNOT BE VIEWED TOTALLY APART FROM OTHER
CONSIDERATIONS OF COMMUNITY OF INTEREST. IN THE INSTANT CASE, THE
RECORD CLEARLY REFLECTS THAT THERE IS INTERCHANGE BETWEEN EMPLOYEES IN
PROCUREMENT AND EMPLOYEES IN OTHER HEADQUARTERS OFFICES. PROCUREMENT
PERSONNEL WORK IN CLOSE GEOGRAPHIC PROXIMITY TO OTHER HEADQUARTERS
PERSONNEL AND HAVE SUBSTANTIAL JOB CONTACT WITH OTHERS. ALL
HEADQUARTERS PERSONNEL HAVE COMMON WORKING CONDITIONS. FURTHER, THERE
ARE NO SKILLS AND TRAINING THAT ARE LIMITED SOLELY TO PROCUREMENT OFFICE
PERSONNEL AND THERE IS SUBSTANTIAL OVERLAPPING OF JOB CLASSIFICATIONS.
ON THE BASIS OF THE ABOVE, I FIND THAT THE UNIT SOUGHT BY THE AFTER
WOULD CONSTITUTE AN ARTIFICIAL FRAGMENTATION OF EMPLOYEES WHO LACK A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST APART FROM OTHER
HEADQUARTERS EMPLOYEES. SUCH A GROUPING COULD NOT BE EXPECTED
REASONABLY TO PROMOTE EFFECTIVE DEALINGS OF EFFICIENCY OF AGENCY
OPERATION. /8/
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE AFGE DOES
NOT CONSTITUTE AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 46-1847(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MAY 27, 1971
/1/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/2/ THE HEARING OFFICER PERMITTED THE PETITION TO BE AMENDED TO
REFLECT AN "ALTERNATE POSITION" OF THE AFGE SO THAT, IN THE EVENT THE
ABOVE-DESCRIBED UNIT IS FOUND TO BE INAPPROPRIATE, IT MAY SEEK AN
ELECTION AMONG ONLY PROFESSIONAL EMPLOYEES IN THE PROCUREMENT OFFICE.
GENERALLY, SUCH STATEMENTS OF ALTERNATIVE POSITIONS SHOULD NOT TAKE THE
FORM OF AMENDMENTS TO PETITIONS. HOWEVER, IN THE CIRCUMSTANCES, I HAVE
CONSIDERED HEREIN, AND RULED ON THE APPROPRIATENESS OF THE "ALTERNATIVE
UNIT."
/3/ THE PARTIES STIPULATED AT THE HEARING THAT "PROCUREMENT OFFICE"
IS THE PROPER DESIGNATION OF THAT PORTION OF THE ACTIVITY IN WHICH THE
AFGE SEEKS AN ELECTION.
/4/ THE AFGE'S CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/5/ ACCORDING TO THE ACTIVITY'S BRIEF, SUBSEQUENT TO THE CLOSE OF THE
HEARING A HEADQUARTERS REORGANIZATION RESULTED IN THE OFFICE OF INDUSTRY
AFFAIRS BECOMING THE OFFICE OF INDUSTRY AFFAIRS AND TECHNOLOGY
UTILIZATION. THIS REORGANIZATION HAD NO APPARENT AFFECT ON THE UNIT
SOUGHT BY THE AFGE IN THE SUBJECT CASE.
/6/ SINCE THE RECORD DOES NOT SET FORTH SUFFICIENT FACTS WITH RESPECT
TO SUCH CRITERIA AS DUTIES, TRAINING, EDUCATIONAL BACKGROUND, ETC., TO
PROVIDE A BASIS FOR A FINDING OF FACT THAT PERSONS IN PARTICULAR
CLASSIFICATIONS ARE PROFESSIONAL, I WILL MAKE NO FINDINGS AS TO WHICH
EMPLOYEE CLASSIFICATIONS CONSTITUTE PROFESSIONAL EMPLOYEES.
/7/ COMPARE THE VETERANS ADMINISTRATION HOSPITAL, LEXINGTON,
KENTUCKY, A/SLMR NO. 22 WHEREIN I FOUND APPROPRIATE A SEPARATE UNIT OF
REGISTERED NURSES.
/8/ THE ABOVE STATED FACTS AND CONCLUSIONS WOULD BE EQUALLY
APPLICABLE TO THE AFGE'S ALTERNATE UNIT OF ALL PROFESSIONAL EMPLOYEES IN
THE PROCUREMENT OFFICE.
1 A/SLMR 45; P. 236; CASE NO. 20-1872(RO); MAY 20, 1971.
TREASURY DEPARTMENT, UNITED STATES MINT,
PHILADELPHIA, PENNSYLVANIA
A/SLMR NO. 45
THE SUBJECT CASE INVOLVING A REPRESENTATION PETITION FILED BY
PHILADELPHIA NAVAL BASE LODGE NO. 81, FRATERNAL ORDER OF POLICE (FOP)
RAISED THE FOLLOWING QUESTIONS:
1. WHETHER THE AGREEMENT BETWEEN THE ACTIVITY AND THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO LOCAL 1023, (AFGE) WOULD ACT
AS A BAR TO THE PROCESSING OF THE PETITION IN THIS MATTER?
2. WHETHER IN THE PARTICULAR CIRCUMSTANCES A SEPARATE UNIT OF GUARDS
COULD BE CARVED OUT OF THE EXISTING UNIT?
3. WHETHER THE UNIT SOUGHT BY THE FOP COVERING ONLY U.S. SPECIAL
POLICE IS APPROPRIATE?
4. WHETHER THE AFGE'S NAME SHOULD BE PLACED ON THE BALLOT IN THE
EVENT AN ELECTION IS DIRECTED IN THE UNIT OF GUARDS?
WITH RESPECT TO THE FIRST ISSUE, THE ASSISTANT SECRETARY STATED THAT
IN ORDER FOR AN AGREEMENT TO CONSTITUTE A BAR TO THE PROCESSING OF A
PETITION IT SHOULD CONTAIN A CLEARLY ENUNCIATED FIXED TERM OR DURATION
FROM WHICH EMPLOYEES AND LABOR ORGANIZATIONS CAN ASCERTAIN, WITHOUT THE
NECESSITY OF RELYING ON OTHER FACTORS, THE APPROPRIATE TIME FOR THE
FILING OF REPRESENTATION PETITIONS. IN THE CIRCUMSTANCES, THE ASSISTANT
SECRETARY CONCLUDED THAT THE AGREEMENT IN THE SUBJECT CASE DID NOT
CONTAIN A CLEARLY ENUNCIATED FIXED TERM OR DURATION AND THEREFORE DID
NOT CONSTITUTE A BAR TO THE PROCESSING OF THE PETITION.
AS TO THE SECOND ISSUE, THE ASSISTANT SECRETARY DETERMINED THE
SUBJECT CASE PRESENTED SUCH UNUSUAL CIRCUMSTANCES AS TO CONSTITUTE AN
EXCEPTION TO THE POLICY SET FORTH IN U.S. NAVAL CONSTRUCTION BATTALION
CENTER, A/SLMR NO. 8. IN THAT DECISION, THE ASSISTANT SECRETARY FOUND
THAT WHERE AN ESTABLISHED, EFFECTIVE AND FAIR COLLECTION BARGAINING
RELATIONSHIP WAS IN EXISTENCE, A SEPARATE UNIT CARVED OUT OF AN EXISTING
UNIT WILL NOT BE FOUND TO BE APPROPRIATE EXCEPT IN UNUSUAL
CIRCUMSTANCES. HOWEVER, NOTING SECTIONS 10(B)(3) AND 10(C) OF THE
ORDER, THE ASSISTANT SECRETARY FOUND THAT THE SEVERANCE OF GUARDS FROM A
COMBINED GUARD-NONGUARD UNIT WOULD BE CONSISTENT WITH THE PURPOSES AND
POLICIES OF THE EXECUTIVE ORDER.
WITH RESPECT TO THE THIRD ISSUE, THE ASSISTANT SECRETARY FOUND THAT
IN ADDITION TO THE GUARDS SOUGHT BY THE PETITION THERE ARE OTHER
EMPLOYEES OF THE ACTIVITY WHO ARE GUARDS WITHIN THE MEANING OF SECTION
2(D) OF THE EXECUTIVE ORDER AND WHO SHOULD BE INCLUDED IN THE CLAIMED
UNIT. HE NOTED THAT ALTHOUGH THESE OTHER GUARDS DO NOT CARRY FIREARMS
AND DO NOT CARRY OUT REGULAR PATROLS, THEY HAVE CERTAIN SECURITY
RESPONSIBILITIES INCLUDING THE OPERATION OF A METAL DETECTOR THROUGH
WHICH ALL VISITORS AND EMPLOYEES PASS. ACCORDINGLY, THE ASSISTANT
SECRETARY DIRECTED THAT AN ELECTION BE CONDUCTED IN A UNIT OF ALL OF THE
ACTIVITY'S GUARDS. IN DIRECTING THE ELECTION, THE ASSISTANT SECRETARY
DETERMINED THAT THE AFGE, A LABOR ORGANIZATION WHICH ADMITS TO
MEMBERSHIP EMPLOYEES OTHER THAN GUARDS, IS PRECLUDED BY THE ORDER FROM
BEING CERTIFIED AS THE REPRESENTATIVE OF GUARD EMPLOYEES AND THEREFORE,
THE PLACEMENT OF ITS NAME ON THE BALLOT IS NOT WARRANTED.
TREASURY DEPARTMENT, UNITED STATES
MINT, PHILADELPHIA, PENNSYLVANIA /1/
AND
PHILADELPHIA NAVAL BASE LODGE
NO. 81, FRATERNAL ORDER OF POLICE /2/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1023
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER TERRENCE J. MARTIN. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED
HEREIN, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY. /3/
2. THE PETITIONER, A LABOR ORGANIZATION WHICH THE RECORD ESTABLISHES
LIMITS ITS MEMBERSHIP TO POLICE OFFICERS, SEEKS AN ELECTION IN A UNIT OF
ALL UNIFORMED U.S. SPECIAL POLICE EMPLOYED BY THE UNITED STATES MINT,
PHILADELPHIA, PENNSYLVANIA, EXCLUDING ANY MANAGEMENT OFFICIAL OR
SUPERVISOR, ANY EMPLOYEE ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL CAPACITY, AND PROFESSIONAL EMPLOYEES. /4/
THE ACTIVITY AND THE INTERVENOR CONTENT THAT THE EMPLOYEES BEING
SOUGHT ARE COVERED BY A SIGNED AGREEMENT WHICH CONSTITUTES A BAR TO THE
PROCESSING OF THE PETITION IN THE SUBJECT CASE. THE ACTIVITY AND THE
INTERVENOR CONTEND FURTHER THAT THE UNIT SOUGHT IS INAPPROPRIATE
BECAUSE, IN THEIR VIEW, THE APPROPRIATE UNIT SHOULD CONSIST OF ALL
NONSUPERVISORY EMPLOYEES EMPLOYED AT THE ACTIVITY. IN ADDITION, THEY
ASSERT THAT IF A UNIT OF GUARDS IS FOUND TO BE APPROPRIATE, THIS UNIT
SHOULD INCLUDE ALL GS-3, GS-4 AND GS-5 GUARDS. /5/
THE BUREAU OF THE MINT CONSISTS OF THE OFFICE OF THE DIRECTOR AND SIX
FIELD OFFICES. THERE ARE TWO MINTS, ONE AT DENVER AND ONE AT
PHILADELPHIA. ALSO, THERE ARE THE SAN FRANCISCO AND THE NEW YORK ASSAY
OFFICES, /6/ AND BULLION DEPOSITORIES AT FORT KNOX AND WEST POINT.
THE PHILADELPHIA MINT IS COMPOSED OF TWELVE DIVISIONS /7/ WHICH ARE
UNDER THE JURISDICTION OF THE OFFICE OF THE SUPERINTENDENT. THE
FUNCTIONS OF THE ACTIVITY ARE: THE MANUFACTURE OF COINS OF THE UNITED
STATES AND OF FOREIGN GOVERNMENTS; THE MANUFACTURE OF MEDALS; THE
ASSAYING OF GOLD AND SILVER; AND THE MANUFACTURE OF COINAGE DIES,
COLLARS AND SPECIAL EQUIPMENT AND SUPPLIES FOR ITS OWN USE AND FOR THAT
OF OTHER MINT FACILITIES.
THE EMPLOYEES IN THE CLAIMED UNIT ARE EMPLOYED IN THE SECURITY
DIVISION. THIS DIVISION IS RESPONSIBLE FOR THE PROTECTION OF THE
ACTIVITY'S STAFF AND PROPERTY FROM UNWARRANTED INTRUSION, TRESPASS,
THEFT, AND OTHER CRIMES AND INFRACTIONS OF THE PEACE ON THE PREMISES,
AND FROM FIRE.
WITH RESPECT TO BARGAINING HISTORY PRIOR TO THE FILING OF THE
PETITION IN THIS CASE, IN 1964, THE ACTIVITY ACCORDED EXCLUSIVE
RECOGNITION TO THE INTERVENOR FOR ALL NONSUPERVISORY EMPLOYEES EMPLOYED
AT THE ACTIVITY. NEGOTIATED AGREEMENTS COVERING THESE EMPLOYEES WERE
EXECUTED BETWEEN THE ACTIVITY AND THE INTERVENOR ON SEPTEMBER 15, 1965,
MARCH 23, 1967, AND MARCH 25, 1970.
AS STATED ABOVE, THE ACTIVITY AND THE INTERVENOR CONTEND THAT THEIR
CURRENT AGREEMENT EXECUTED ON MARCH 25, 1970 CONSTITUTES A BAR TO
FURTHER PROCEEDINGS IN THE SUBJECT CASE. IN THIS REGARD, THE EVIDENCE
REVEALS THAT THE PARTIES' CURRENT AGREEMENT STATES AS TO ITS DURATION
THAT, "THE AGREEMENT WILL BE SUBJECT TO REVIEW ANNUALLY AND ANY PROPOSED
CHANGES MUST BE ANNOUNCED IN WRITING NOT LESS THAN SIXTY DAYS PRIOR TO
THE ANNIVERSARY DATE. SUCH NOTICE MUST BE ACKNOWLEDGED BY THE OTHER
PARTY WITHIN TEN DAYS OF RECEIPT." /8/
IN MY VIEW, IN ORDER FOR AN AGREEMENT TO CONSTITUTE A BAR TO THE
PROCESSING OF A PETITION IT SHOULD CONTAIN A CLEARLY ENUNCIATED FIXED
TERM OR DURATION FROM WHICH EMPLOYEES AND LABOR ORGANIZATIONS CAN
ASCERTAIN, WITHOUT THE NECESSITY OF RELYING ON OTHER FACTORS, THE
APPROPRIATE TIME FOR THE FILING OF REPRESENTATION PETITIONS. TO PERMIT
AGREEMENTS OF UNCLEAR DURATION TO BE CONSIDERED A BAR TO AN ELECTION
WOULD, IN EFFECT, BE GRANTING PROTECTION TO PARTIES WHO HAVE ENTERED
INTO AMBIGUOUS COMMITMENTS AND COULD RESULT IN THE ABRIDGEMENT OF THE
RIGHTS OF EMPLOYEES UNDER THE EXECUTIVE ORDER. THE ABOVE QUOTED
LANGUAGE CONTAINED IN THE PARTIES' AGREEMENT DOES NOT, IN MY VIEW,
CLEARLY ENUNCIATE A FIXED TERM OR DURATION. THUS, THE AGREEMENT STATES
THAT IT WILL BE SUBJECT TO REVIEW ANNUALLY BUT THERE IS NO CLEAR
INDICATION AS TO WHETHER SUCH REVIEW WOULD TERMINATE THE AGREEMENT OR
WHETHER, IN THE ABSENCE OF REVIEW, THE AGREEMENT WOULD REMAIN IN
EXISTENCE INDEFINITELY. IN THESE CIRCUMSTANCES, I FIND THAT THE
AGREEMENT BETWEEN THE ACTIVITY AND THE INTERVENOR DOES NOT CONTAIN A
CLEARLY ENUNCIATED FIXED TERM OR DURATION AND THEREFORE DOES NOT
CONSTITUTE A BAR TO THE PROCESSING OF THE PETITION IN THE SUBJECT CASE.
WITH RESPECT TO THE QUESTION WHETHER THE CLAIMED UNIT IS APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491, IN
UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, I
DETERMINED THAT WHERE THE EVIDENCE SHOWS THAT AN ESTABLISHED, EFFECTIVE
AND FAIR COLLECTIVE BARGAINING RELATIONSHIP IS IN EXISTENCE, A SEPARATE
UNIT CARVED OUT OF THE EXISTING UNIT WILL NOT BE FOUND TO BE
APPROPRIATE, EXCEPT IN UNUSUAL CIRCUMSTANCES. I FIND THAT THE SUBJECT
CASE PRESENTS SUCH UNUSUAL CIRCUMSTANCES. THUS, SECTIONS 10(B)(3) AND
10(C) OF EXECUTIVE ORDER 11491 CLEARLY REFLECT THE VIEW THAT APPROPRIATE
UNITS SHOULD NOT BE COMPOSED OF MIXTURES OF GUARDS AND NONGUARDS AND
THAT NONGUARD LABOR ORGANIZATIONS SHOULD NOT REPRESENT GUARDS. /9/ IN
VIEW OF THIS CLEAR MANDATE, I FIND THAT DESPITE A HISTORY OF
REPRESENTATION IN A COMBINED UNIT, SEVERANCE OF THE GUARD EMPLOYEES /10/
FROM THE UNIT REPRESENTED CURRENTLY BY THE INTERVENOR IS NOT PRECLUDED
BY MY PREVIOUSLY ANNOUNCED POLICY IN U.S. NAVAL CONSTRUCTION BATTALION
CENTER, CITED ABOVE.
AS STATED ABOVE, THE RECORD ESTABLISHED THAT ALL GUARDS ARE ASSIGNED
TO THE SECURITY DIVISION. THEY WEAR GUARD UNIFORMS; HAVE NUMBERED
BADGES; GREET VISITORS AND REQUIRE THEM TO SIGN THE VISITORS' REGISTER;
ANSWER THE TELEPHONE; INSPECT PACKAGES TO INSURE THAT NO ARTICLE
ENTERS OR IS REMOVED WITHOUT A DETAILED INSPECTION; AND PREPARE REPORTS
AS REQUIRED. THEY ARE UNDER COMMON SUPERVISION, AND APPARENTLY THE
REGULAR 8 HOUR SHIFT APPLIES TO ALL. /11/
THE RECORD FURTHER INDICATES THAT THE ACTIVITY'S GS-5 GUARDS, WHO
INCLUDE ALL THE EMPLOYEES COVERED BY THE PETITION AND WHO ARE DESIGNATED
U.S. SPECIAL POLICE, CARRY FIREARMS; HAVE REGULAR PATROLS; INSPECT
INCOMING AND OUT-GOING VEHICLES; PATROL INSIDE THE COINING AREA; GUARD
THE HEAT TREATMENT AREA; AND CHECK AND PATROL FIRE EXITS. ALSO, THEY
MAY DETAIN ANY INDIVIDUAL SUSPECTED OF THEFT UNTIL SECRET SERVICE
REPRESENTATIVES ARRIVE.
ALTHOUGH THE RECORD REVEALS THAT THE ACTIVITY'S GS-3 GUARDS, WHO ARE
NOT INCLUDED IN THE CLAIMED UNIT, DO NOT CARRY FIREARMS AND APPARENTLY
DO NOT HAVE REGULAR PATROLS, THE EVIDENCE ESTABLISHES THAT THESE
EMPLOYEES HAVE CERTAIN SECURITY RESPONSIBILITIES WITH RESPECT TO THE
FIRE EXIT DOORS AT THE END OF THE ACTIVITY'S VISITORS' GALLERY AND THE
HEAT TREATMENT AREA, AND THAT THEY OPERATE A METAL DETECTOR THROUGH
WHICH ALL VISITORS AND EMPLOYEES MUST PASS. IN THE LATTER REGARD, THE
GS-3 GUARDS HAVE THE AUTHORITY TO DETAIN, UNTIL THEIR IMMEDIATE
SUPERVISOR ARRIVES, ANY PERSON DETECTED TO BE CARRYING UNAUTHORIZED
METAL.
IN ALL THE CIRCUMSTANCES AND NOTING THAT ALL GUARDS, IRRESPECTIVE OF
GRADE, WORK UNDER COMMON SUPERVISION AND THE FACT THAT TWO OF THE
ACTIVITY'S GS-3 GUARDS HAVE COMPLETED A TRAINING COURSE HERETOFORE
UTILIZED ONLY BY THE ACTIVITY'S GS-5 U.S. SPECIAL POLICE, /12/ I FIND
THAT THE ACTIVITY'S GS-3 GUARDS ARE "GUARDS" WITHIN THE MEANING OF THE
EXECUTIVE ORDER AND THAT THESE EMPLOYEES AND THE ACTIVITY'S U.S. SPECIAL
POLICE SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST. I FIND
ALSO THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES OF THE ACTIVITY
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491:
ALL U.S. SPECIAL POLICE AND OTHER NONSUPERVISORY GUARDS EMPLOYED BY
THE TREASURY
DEPARTMENT, UNITED STATES MINT, PHILADELPHIA, PENNSYLVANIA, EXCLUDING
ALL EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, AND SUPERVISORS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
PHILADELPHIA NAVAL BASE LODGE NO. 81, FRATERNAL ORDER OF POLICE. /13/
DATED, WASHINGTON, D.C.
MAY 20, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ AT THE HEARING, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1023, HEREIN CALLED THE INTERVENOR, ATTEMPTED TO
CHALLENGE THE LABOR ORGANIZATION STATUS OF THE PHILADELPHIA NAVAL BASE
LODGE NO. 81, FRATERNAL ORDER OF POLICE, HEREIN CALLED THE PETITIONER,
ON THE GROUND THAT THE PETITIONER DISCRIMINATED WITH REGARD TO THE TERMS
OR CONDITIONS OF MEMBERSHIP BECAUSE OF RACE, COLOR, CREED, SEX, AGE OR
NATIONAL ORIGIN AND, THEREFORE, DOES NOT QUALIFY AS A LABOR ORGANIZATION
UNDER SECTION 2(E)(4) OF EXECUTIVE ORDER 11491. UNDER SECTION 202.2(G)
OF THE REGULATIONS OF THE ASSISTANT SECRETARY, A CHALLENGE AS TO STATUS
OF A LABOR ORGANIZATION MUST BE FILED WITH THE APPROPRIATE AREA
ADMINISTRATOR WITHIN TEN DAYS AFTER THE INITIAL DATE OF POSTING OF THE
NOTICE OF PETITION AND SUCH CHALLENGE SHOULD BE SUPPORTED WITH EVIDENCE.
FURTHER, NO PROVISION IS MADE IN THE REGULATIONS FOR FILING A REQUEST
FOR REVIEW OF A REGIONAL ADMINISTRATOR'S ACTION DISMISSING A CHALLENGE
TO STATUS OF A LABOR ORGANIZATION. SEE REPORT ON A RULING OF THE
ASSISTANT SECRETARY, NO. 28. IN THESE CIRCUMSTANCES, I FIND THE
INTERVENOR'S ATTEMPT AT THE HEARING TO CHALLENGE THE PETITIONER'S STATUS
TO BE IMPROPER.
/4/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/5/ THE CLASSIFICATION "UNIFORMED U.S. SPECIAL POLICE," AS SPECIFIED
IN THE PETITION IN THE SUBJECT CASE, IS APPARENTLY NOT BROAD ENOUGH TO
INCLUDE GS-3 AND GS-4 GUARDS. IT SHOULD BE NOTED THAT THE EVIDENCE
REVEALS THAT CURRENTLY THERE ARE NO GS-4 GUARDS EMPLOYED BY THE
ACTIVITY.
/6/ THE SAN FRANCISCO ASSAY OFFICE ALSO OPERATES A MINT.
/7/ THE TWELVE DIVISIONS ARE: (1) ENGRAVING; (2) MELTING; (3)
COINAGE; (4) BUILDING AND MECHANICAL; (5) SECURITY; (6) ASSAY; (7)
MANAGEMENT ANALYSIS; (8) ACCOUNTING DIVISION; (9) PERSONNEL; (10)
PURCHASING; (11) NUMISMATIC SERVICE; AND (12) CASH AND DEPOSITS. 4
/8/ THIS PROVISION IS FOUND IN ARTICLE VII OF THE PARTIES' AGREEMENT.
THE EVIDENCE REVEALS THAT BOTH PRIOR AGREEMENTS CONTAINED THIS
INDENTICAL LANGUAGE.
/9/ SEE ALSO IN THIS RESPECT, THE STUDY COMMITTEE'S REPORT AND
RECOMMENDATIONS ON LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE.
/10/ ALTHOUGH, AS DISCUSSED HEREIN, THERE IS A DISPUTE AS TO WHETHER
CERTAIN EMPLOYEES IN ADDITION TO THOSE IN THE CLAIMED UNIT ARE GUARDS
WITHIN THE MEANING OF SECTION 2(D) OF THE ORDER, THE PARTIES AGREE AND
THE RECORD IS CLEAR THAT THE UNIFORMED U.S. SPECIAL POLICE COVERED BY
THE PETITION ARE, IN FACT, GUARDS.
/11/ THE ACTIVITY'S POSITION DESCRIPTION AS TO GUARDS INDICATES THAT
THERE ARE SIMILAR DUTIES AND RESPONSIBILITIES AS TO ALL GUARDS WITH
VARYING DEGREES OF SUCH RESPONSIBILITIES AND DUTIES ACCORDING TO GRADE.
/12/ IN THIS RESPECT, THE RECORD INDICATES THAT IT IS CONTEMPLATED BY
THE ACTIVITY THAT ALL GS-3 GUARDS WILL EVENTUALLY BE REQUIRED TO
COMPLETE THE REQUIRED TRAINING COURSE FOR U.S. SPECIAL POLICE. 4 /13/
SECTION 10(C) OF THE EXECUTIVE ORDER PROVIDES THAT, "AN AGENCY SHALL NOT
ACCORD EXCLUSIVE RECOGNITION TO A LABOR ORGANIZATION AS THE
REPRESENTATIVE OF EMPLOYEES IN A UNIT OF GUARDS IF THE ORGANIZATION
ADMITS TO MEMBERSHIP, OR IS AFFILIATED DIRECTLY OR INDIRECTLY WITH AN
ORGANIZATION WHICH ADMITS TO MEMBERSHIP, EMPLOYEES OTHER THAN GUARDS."
IT IS UNDISPUTED THAT THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (AFGE) IS A LABOR ORGANIZATION WHICH "ADMITS TO MEMBERSHIP, OR
IS AFFILIATED DIRECTLY OR INDIRECTLY WITH AN ORGANIZATION WHICH ADMITS
TO MEMBERSHIP EMPLOYEES OTHER THAN GUARDS." IN THESE CIRCUMSTANCES,
SINCE THE AFGE IS PRECLUDED BY THE ORDER FROM BEING CERTIFIED AS THE
REPRESENTATIVE OF GUARD EMPLOYEES, THE PLACEMENT OF ITS NAME ON THE
BALLOT IS NOT WARRANTED.
1 A/SLMR 44; P. 234; CASE NOS. 53-2974, 53-2976; MAY 20, 1971.
ADJUTANT GENERAL DEPARTMENT, STATE
OF OHIO, AIR NATIONAL GUARD, ET AL
A/SLMR NO. 44
THIS CASE INVOLVED REPRESENTATION PETITIONS FILED BY TWO LABOR
ORGANIZATIONS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
OHIO COUNCIL OF AIR NATIONAL GUARD LOCALS (AFGE) AND NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-57 (NAGE). THE AFGE
SOUGHT A UNIT OF ALL NONSUPERVISORY GENERAL SCHEDULE AND WAGE BOARD
TECHNICIANS IN THE OHIO AIR NATIONAL GUARD IN THE STATE OF OHIO. THE
NAGE SOUGHT A UNIT OF ALL NONSUPERVISORY TECHNICIANS OF THE 179TH
TACTICAL FIGHTER GROUP, OHIO AIR NATIONAL GUARD, LAHM AIRPORT,
MANSFIELD, OHIO. THE QUESTIONS PRESENTED WERE WHETHER A SINGLE
INSTALLATION UNIT OF TECHNICIANS PETITIONED FOR BY THE NAGE OR A
STATE-WIDE UNIT AS SOUGHT BY THE AFGE WAS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491.
UNDER ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
STATE-WIDE UNIT PETITIONED FOR BY THE AFGE WAS APPROPRIATE. IN REACHING
THIS DETERMINATION, THE ASSISTANT SECRETARY NOTED THAT ALL GENERAL
SCHEDULE AND WAGE BOARD NONSUPERVISORY TECHNICIANS WITHIN THEIR
RESPECTIVE CLASSIFICATIONS HAVE THE SAME BASIS FOR COMPENSATION; THAT
THEIR CONDITIONS OF EMPLOYMENT AND FRINGE BENEFITS ARE UNIFORM
THROUGHOUT THE STATE; THAT THEY HAVE THE SAME BASIC TRAINING; AND THAT
THE STATE ADJUTANT GENERAL HAS CENTRALIZED CONTROL AND SUPERVISION OVER
THEIR PERSONNEL POLICIES AND PROGRAMS.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE UNIT SOUGHT BY THE NAGE
WAS NOT APPROPRIATE, AND THEREFORE ORDERED THAT THE PETITION FILED BY
THE NAGE BE DISMISSED. IN THIS REGARD, HE NOTED THE UNIFORM TERMS AND
CONDITIONS OF EMPLOYMENT AMONG THE TECHNICIANS THROUGHOUT THE STATE AS
WELL AS THE OTHER FACTORS CONCERNING THE TECHNICIANS' CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST ON A STATE-WIDE BASIS. HE ALSO NOTED
THAT THE TECHNICIANS IN THE UNIT SOUGHT BY THE NAGE WILL HAVE AN
OPPORTUNITY TO VOTE IN A MORE COMPREHENSIVE UNIT ON WHETHER OR NOT THEY
DESIRE UNION REPRESENTATION
ADJUTANT GENERAL DEPARTMENT, STATE OF
OHIO, AIR NATIONAL GUARD /1/
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, OHIO COUNCIL OF AIR NATIONAL GUARD
LOCALS
NATIONAL GUARD BUREAU, ADJUTANT
GENERAL DEPARTMENT, STATE OF OHIO,
179TH TACTICAL FIGHTER GROUP
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R7-57
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER KENNETH M. BAZAR.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 53-2974, PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, OHIO COUNCIL OF AIR NATIONAL GUARD
LOCALS, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL
NONSUPERVISORY GENERAL SCHEDULE AND WAGE BOARD TECHNICIANS IN THE OHIO
AIR NATIONAL GUARD IN THE STATE OF OHIO. THE ACTIVITY AGREES WITH THE
AFGE THAT A STATE-WIDE UNIT IS APPROPRIATE BASED ON ITS VIEW THAT
EMPLOYEES IN SUCH A UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST AND THAT ITS ESTABLISHMENT WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF OPERATIONS. IN CASE NO. 53-2976, PETITIONER, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-57, HEREIN CALLED NAGE,
SEEKS AN ELECTION IN A UNIT OF ALL NON-SUPERVISORY TECHNICIANS OF THE
179TH TACTICAL FIGHTER GROUP, OHIO AIR NATIONAL GUARD, LAHM AIRPORT,
MANSFIELD, OHIO.
THE ADJUTANT GENERAL OF THE STATE OF OHIO ADMINISTERS THE TECHNICIANS
PERSONNEL PROGRAM OF THE ACTIVITY ON A STATE-WIDE BASIS WITHIN THE
REGULATIONS AND GUIDELINES ESTABLISHED BY THE U.S. AIR FORCE THROUGH THE
NATIONAL GUARD BUREAU. THE ROLE OF THE APPROXIMATELY 850 TECHNICIANS
EMPLOYED BY THE ACTIVITY IS TO CARRY ON THE DAY-TO-DAY ADMINISTRATION,
SUPPLY AND MAINTENANCE FUNCTIONS OF THE ACTIVITY IN ORDER THAT IT BE IN
THE HIGHEST STATE OF READINESS IN CASE OF MOBILIZATION. THESE EMPLOYEES
ARE EMPLOYED WITHIN TACTICAL FIGHTER GROUPS WHICH MAINTAIN A WORLD-WIDE
DEVELOPMENT CAPABILITY, THROUGH THE DELIVERY OF ALL TYPES OF TACTICAL
WEAPONS COMPATIBLE WITH THE AIRCRAFT INVOLVED; AND AIR REFUELING GROUP
WHICH PROVIDES IN-FLIGHT REFUELING SUPPORT TO TACTICAL FORCES; MOBILE
COMMUNICATIONS GROUPS WHICH INSTALL, OPERATE AND MAINTAIN MOBILE
COMMUNICATIONS AND CONTROL FACILITIES; AND A TACTICAL CONTROL FLIGHT
WHICH MAINTAINS THE CAPABILITY OF CONTROLLING TACTICAL AIR OPERATIONS,
INCLUDING AIR DEFENSE AND CENTRALIZED AIR SPACE CONTROL OVER A COMBAT
ZONE.
THE EMPLOYEES INVOLVED IN THE SUBJECT CASES ARE GENERAL SCHEDULE AND
WAGE BOARD TECHNICIANS. ALTHOUGH GENERAL SCHEDULE TECHNICIANS ENGAGE IN
DUTIES PERTAINING TO ADMINISTRATIVE AND SUPPLY FUNCTIONS AND WAGE BOARD
TECHNICIANS ENGAGE IN DUTIES PERTAINING TO MAINTENANCE AND REPAIR WORK
REQUIRED ON AIRCRAFT, BOTH GROUPS WORK TOGETHER AS A TEAM WITH REGARD TO
THE AIRCRAFT INVOLVED; THEY WILL OCCASIONALLY INTERCHANGE JOBS ON A
TEMPORARY BASIS; ON OCCASION WAGE BOARD TECHNICIANS ASSIST GENERAL
SCHEDULE TECHNICIANS; AND ALL TECHNICIANS ASSIST EACH OTHER AT BASES
OTHER THAN THEIR OWN WHEN EMERGENCIES ARISE. IN THEIR RESPECTIVE
CLASSIFICATIONS, THE TECHNICIANS' JOBS THROUGHOUT THE STATE ARE SIMILAR,
THEIR TERMS AND CONDITIONS OF EMPLOYMENT ARE SUBSTANTIALLY THE SAME, /2/
AND THE SAME FRINGE BENEFITS APPLY TO ALL.
WITH RESPECT TO THE BARGAINING HISTORY PRIOR TO THE FILING OF THE
SUBJECT PETITIONS, THE ACTIVITY ACCORDED EXCLUSIVE RECOGNITION TO AN
AFGE LOCAL OR LOCALS UNDER EXECUTIVE ORDER 10988 AT TWO INSTALLATIONS OF
THE OHIO AIR NATIONAL GUARD. /3/ THE RECORD ALSO INDICATES THAT THE
ACTIVITY GRANTED RECOGNITION /4/ TO THE NAGE APPARENTLY COVERING
EMPLOYEES EMPLOYED IN THE MAINTENANCE-SUPPLY FACILITY AT THE 179TH
TACTICAL FIGHTER GROUP, MANSFIELD, OHIO.
IN ALL THE CIRCUMSTANCES, INCLUDING THE FACT THAT WITHIN THEIR
RESPECTIVE WAGE BOARD AND GENERAL SCHEDULE CLASSIFICATIONS, ALL THE
TECHNICIANS THROUGHOUT THE STATE HAVE THE SAME BASIS FOR COMPENSATION;
THAT THERE EXISTS THROUGHOUT THE STATE UNIFORM CONDITIONS OF EMPLOYMENT
AND FRINGE BENEFITS; THAT THE TECHNICIANS RECEIVE THE SAME BASIC
TRAINING; THAT THERE IS SOME DEGREE OF INTERCHANGE AMONG THESE
EMPLOYEES, AND THAT THE ADJUTANT GENERAL EXERCISES CENTRALIZED CONTROL
AND SUPERVISION OVER THEIR PERSONNEL POLICIES AND PROGRAMS, I FIND THAT
THE TECHNICIANS IN THE STATE-WIDE UNIT PETITIONED FOR BY THE AFGE HAVE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND THAT SUCH A
COMPREHENSIVE UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. /5/ ACCORDINGLY, I FIND THAT THE FOLLOWING UNIT IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491:
ALL GENERAL SCHEDULE AND WAGE BOARD TECHNICIANS IN THE OHIO AIR
NATIONAL GUARD IN THE STATE
OF OHIO, EXCLUDING MANAGEMENT OFFICIALS, PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
SUPERVISORS AND GUARDS AS DEFINED
IN THE ORDER.
IN VIEW OF THE UNIFORM TERMS AND CONDITIONS OF EMPLOYMENT AMONG THE
TECHNICIANS THROUGHOUT THE STATE, AND THE OTHER FACTORS NOTED ABOVE WITH
RESPECT TO THESE TECHNICIANS' CLEAR AND INDENTIFIABLE COMMUNITY OF
INTEREST IN THE STATE-WIDE UNIT, I FIND THAT THE UNIT PETITIONED FOR BY
THE NAGE COVERING A SINGLE INSTALLATION WITHIN THE STATE IS NOT
APPROPRIATE SINCE THE TECHNICIANS IN SUCH A UNIT DO NOT SHARE A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST APART FROM SIMILARLY SITUATED
TECHNICIANS THROUGHOUT THE STATE AND SUCH A FRAGMENTED UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATION.
MOREOVER, THE TECHNICIANS IN THE UNIT SOUGHT BY THE NAGE WILL HAVE AN
OPPORTUNITY TO VOTE IN A MORE COMPREHENSIVE UNIT ON WHETHER OR NOT THEY
DESIRE UNION REPRESENTATION. ACCORDINGLY, SINCE THE UNIT SOUGHT BY THE
NAGE IS NOT APPROPRIATE, I SHALL ORDER THAT ITS PETITION BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 53-2976, BE,
AND IT HEREBY IS, DISMISSED.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OHIO COUNCIL OF AIR
NATIONAL GUARD LOCALS. /6/
DATED, WASHINGTON, D.C.
MAY 20, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE IMMEDIATE SUPERVISORS OF THE TECHNICIANS HANDLE THEIR WORK
SCHEDULES; ATTEMPT TO SOLVE GRIEVANCES; APPROVE ANNUAL AND SICK LEAVE;
AND HAVE DAY-TO-DAY SUPERVISION OVER THE WORK PERFORMANCE OF THE
TECHNICIANS.
/3/ AT THE HEARING, ALL PARTIES STIPULATED THAT THE PETITIONS RAISED
A VALID QUESTION CONCERNING REPRESENTATION SO AS TO WARRANT AN ELECTION.
THERE WAS NO CONTENTION THAT THE UNITS REPRESENTED ON AN EXCLUSIVE
BASIS SHOULD BE EXCLUDED FROM THE UNIT SOUGHT BY THE AFGE.
/4/ THE RECORD DOES NOT REVEAL THE TYPE OF RECOGNITION GRANTED.
/5/ SEE IN THIS REGARD PENNSYLVANIA NATIONAL GUARD, A/SLMR NO. 9;
MINNESOTA ARMY NATIONAL GUARD, A/SLMR NO. 14; AND FLORIDA AIR NATIONAL
GUARD, A/SLMR NO. 37.
/6/ THE EVIDENCE ESTABLISHES THAT THE NAGE'S SHOWING OF INTEREST IS
INSUFFICIENT TO TREAT IT AS AN INTERVENOR IN CASE NO. 53-2974.
ACCORDINGLY, THE PLACEMENT OF ITS NAME ON THE BALLOT IS NOT WARRANTED.
1 A/SLMR 43; P. 231; CASE NOS. 46-1804(RO), 22-1870(RO); MAY 20,
1971.
ARMY AND AIR FORCE EXCHANGE SERVICE,
ABERDEEN-EDGEWOOD EXCHANGE
A/SLMR NO. 43
THE SUBJECT CASE, INVOLVING SEPARATE PETITIONS FILED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1799 AND NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 178, PRESENTED THE QUESTIONS
WHETHER OFF-DUTY MILITARY PERSONNEL SHOULD BE EXCLUDED AS A CLASS AND
WHETHER THE PARTIES MAY BE DENIED THE OPPORTUNITY TO PROCEED TO AN
ELECTION WHERE THEY ARE IN AGREEMENT AS TO THE APPROPRIATENESS OF THE
UNIT.
THE ASSISTANT SECRETARY, IN REJECTING THE CONTENTION OF THE PARTIES
SEEKING EXCLUSION OF OFF-DUTY MILITARY PERSONNEL, RELIED UPON THE POLICY
STATED IN DEPARTMENT OF THE NAVY, NAVY EXCHANGE, MAYPORT, FLORIDA,
A/SLMR NO. 24 AND ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS
MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW MEXICO, A/SLMR
NO. 25 THAT EXCLUSION OF OFF-DUTY MILITARY PERSONNEL AS A CLASS WAS NOT
WARRANTED WHERE THEY SHOW A COMMUNITY OF INTEREST WITH THEIR CIVILIAN
COUNTERPARTS. SUCH A COMMUNITY OF INTEREST WAS FOUND TO EXIST HERE,
BASED UPON COMMON SUPERVISION, LABOR RELATIONS POLICIES, GENERAL WORKING
CONDITIONS AND THE FACT THAT BOTH CIVILIAN AND OFF-DUTY MILITARY
EMPLOYEES ARE EMPLOYED IN SIMILAR OCCUPATIONAL CATEGORIES.
THE ASSISTANT SECRETARY ALSO RELIED UPON HIS DECISION IN A/SLMR NO.
25, WITH RESPECT TO THE SECOND QUESTION, NOTED ABOVE, THAT NEITHER THE
EXECUTIVE ORDER NOR ITS IMPLEMENTING REGULATIONS REQUIRE THAT AN
ELECTION MUST BE HELD WHERE THERE IS NO DISPUTE BETWEEN THE PARTIES AS
TO THE APPROPRIATENESS OF THE UNIT SOUGHT.
INASMUCH AS THE INCLUSION OF OFF-DUTY MILITARY EMPLOYEES RENDERED THE
SHOWING OF INTEREST INADEQUATE AS TO BOTH PETITIONS, THE ASSISTANT
SECRETARY ORDERED THAT THEY BE DISMISSED.
ARMY AND AIR FORCE EXCHANGE SERVICE,
ABERDEEN-EDGEWOOD EXCHANGE /1/
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 178
ARMY AND AIR FORCE EXCHANGE SERVICE,
ABERDEEN-EDGEWOOD EXCHANGE
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1799
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER EUGENE M. LEVINE.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED
HEREIN, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 22-1870, THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1799, HEREIN CALLED AFGE, SEEKS AN ELECTION IN
THE FOLLOWING UNIT: ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY
PAY PLAN AND COMMISSION PAY PLAN CIVILIAN EMPLOYEES OF THE
ABERDEEN-EDGEWOOD EXCHANGE, BUT EXCLUDING ALL TEMPORARY FULL-TIME,
TEMPORARY PART-TIME, ON-CALL, CASUAL, MILITARY PERSONNEL EMPLOYED DURING
OFF-DUTY HOURS, MANAGERS, MANAGERIAL EMPLOYEES TRAINEES, PERSONNEL
WORKERS EMPLOYED IN OTHER THAN A PURELY CLERICAL CAPACITY, SUPERVISORS,
GUARDS AND WATCHMEN. /2/
IN CASE NO. 46-1804, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 178, HEREIN CALLED NFFE, SEEKS A UNIT OF ALL NONSUPERVISORY
FULLTIME EMPLOYEES, POST EXCHANGE SERVICE, EDGEWOOD ARSENAL. /3/
EACH OF THE THREE PARTIES AGREES THAT OFF-DUTY MILITARY PERSONNEL
SHOULD BE EXCLUDED FROM THE UNIT. THE ACTIVITY AND THE AFGE CONTEND
THAT INASMUCH AS BOTH OF THE PARTICIPATING PARTIES AT THE HEARING
STIPULATED TO AN APPROPRIATE UNIT, THE HEARING OFFICER SHOULD HAVE
PERMITTED THEM TO PROCEED TO A CONSENT ELECTION RATHER THAN CONTINUE
WITH THE HEARING WITH RESPECT TO THE OFF-DUTY MILITARY PERSONNEL. FOR
THE REASONS CITED IN ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS
MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW MEXICO, A/SLMR
NO. 25, THE HEARING OFFICER'S RULING DENYING THE PARTIES' MOTION TO
ADJOURN THE HEARING IS HEREBY AFFIRMED AND THE CONTENTIONS MADE BY THE
PARTIES ARE REJECTED.
THE ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES), A WORLDWIDE
OPERATION, PROVIDES MERCHANDISE AND SERVICES TO AUTHORIZE PATRONS. IT
OPERATES FACILITIES AT BOTH THE ABERDEEN PROVING GROUND AND AT THE
EDGEWOOD ARSENAL WHICH ARE SITUATED APPROXIMATELY 11 MILES APART. BOTH
EXCHANGES ARE UNDER THE CONTROL OF A GENERAL MANAGER WHO IS ASSISTED BY
A STAFF OF MANAGERS, ONE OF EACH OF THE RETAIL, FOOD, AND SERVICES
OPERATIONS, AS WELL AS ACCOUNTING, PERSONNEL, SAFETY AND SECURITY
SPECIALISTS. AT ABERDEEN THERE ARE 117 FULL-TIME CIVILIAN EMPLOYEES AND
30 PART-TIME OFF-DUTY MILITARY EMPLOYEES. AT THE EDGEWOOD ARSENAL THERE
ARE 25 FULL-TIME EMPLOYEES, 10 PART-TIME CIVILIAN EMPLOYEES AND 6
PART-TIME MILITARY PERSONNEL.
OFF-DUTY MILITARY PERSONNEL
OFF-DUTY MILITARY PERSONNEL ARE EMPLOYED IN FOOD AND SERVICE STATION
OPERATIONS. THEY WORK UNDER THE DIRECT SUPERVISION OF THE MANAGER OF
THE FACILITY TO WHICH THEY ARE ASSIGNED AND ARE REQUIRED TO WEAR THE
SAME UNIFORMS AS ARE REQUIRED TO BE WORN BY CIVILIANS IN SERVICE
STATIONS AND FOOD AND RETAIL OPERATIONS.
WORK SCHEDULES ARE ESTABLISHED FOR BOTH CIVILIAN EMPLOYEES AND
OFF-DUTY MILITARY PERSONNEL. THE LATTER ARE EXPECTED TO ADHERE TO SUCH
SCHEDULES, ALTHOUGH IT IS UNDERSTOOD THAT THEIR WORK MAY BE INTERRUPTED
BY MILITARY OBLIGATIONS. THE HOURS WORKED BY OFF-DUTY MILITARY
PERSONNEL RANGE FROM AT LEAST 16 HOURS PER WEEK TO NOT MORE THAN 35
HOURS PER WEEK. THE 30 OFF-DUTY MILITARY PERSONNEL AT ABERDEEN WORK AN
AVERAGE OF 25 HOURS PER WEEK WHILE THE 17 PART-TIME CIVILIAN EMPLOYEES
OF ABERDEEN WORK APPROXIMATELY 30 HOURS PER WEEK.
COMPARABLE RECRUITMENT PROGRAMS ARE MAINTAINED FOR BOTH CIVILIANS AND
OFF-DUTY MILITARY PERSONNEL AND THE SAME TYPE OF PERSONNEL FILES ARE
MAINTAINED FOR BOTH GROUPS OF EMPLOYEES.
IN DEPARTMENT OF THE NAVY, NAVY EXCHANGE, MAYPORT, FLORIDA, A/SLMR
NO. 24 AND ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS MISSILE
RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW MEXICO, CITED ABOVE, I
FOUND THAT THE GENERAL EXCLUSION OF OFF-DUTY MILITARY EMPLOYEES AS A
CLASS FROM EMPLOYEE BARGAINING UNITS WAS NOT WARRANTED WHERE THEY SHARE
A COMMUNITY OF INTEREST WITH THEIR CIVILIAN COUNTERPARTS AND WHERE SUCH
EXCLUSION WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
OPERATIONS. THE RECORD IN THE SUBJECT CASES SHOWS A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST EXISTS BETWEEN OFF-DUTY MILITARY
PERSONNEL AND CIVILIAN EMPLOYEES BASED UPON THIER WORKING IN SIMILAR
OCCUPATIONAL CATEGORIES AND THEIR BEING SUBJECT TO THE SAME SUPERVISION,
LABOR RELATIONS POLICIES AND GENERAL WORKING CONDITIONS.
ACCORDINGLY, I FIND THAT THE GENERAL EXCLUSION OF OFF-DUTY MILITARY
PERSONNEL FROM THE UNIT AGREED UPON IS UNWARRANTED. IN THIS RESPECT,
INASMUCH AS THE EVIDENCE REVEALS THAT THE INCLUSION OF THIS GROUP IN THE
UNITS SOUGHT BY THE AFGE AND THE NFFE RENDERS THEIR SHOWINGS OF INTEREST
INADEQUATE, I SHALL DISMISS BOTH PETITIONS IN THE SUBJECT CASES.
IT IS HEREBY ORDERED THAT THE PETITIONS IN CASE NOS. 46-1804(RO) AND
22-1870(RO) BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
MAY 20, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE UNIT APPEARS AS AMENDED AT THE HEARING. ALTHOUGH NOT NAMED
AS A SPECIFIC INCLUSION, THE AFGE SEEKS TO INCLUDE BARBERS WHOM IT HAS
REPRESENTED UNDER A SEPARATE EXCLUSIVE RECOGNITION SINCE 1965. THERE IS
NO OTHER LABOR RELATIONS HISTORY AMONG THE EMPLOYEES OF THE
ABERDEEN-EDGEWOOD EXCHANGE.
/3/ THE ACTIVITY AND THE AFGE MOVED THAT THE PETITION BY THE NFFE BE
DISMISSED FOR ITS FAILURE TO APPEAR AND PARTICIPATE AT THE HEARING AS
WELL AS ON GROUNDS THAT THE UNIT SOUGHT IS INAPPROPRIATE. NFFE, IN ITS
BRIEF, STATES THAT IT DID NOT APPEAR AT THE HEARING BECAUSE IT DOES NOT
OBJECT TO THE UNIT SOUGHT BY THE AFGE. IN VIEW OF THE DISPOSITION MADE
HEREIN WITH RESPECT TO THE SUBJECT PETITIONS, I FIND IT UNNECESSARY TO
RULE ON THE MOTIONS TO DISMISS THE NFFE'S PETITION.
1 A/SLMR 42; P. 225; CASE NO. 40-2190(CA); MAY 14, 1971.
UNITED STATES ARMY SCHOOL/TRAINING
CENTER, FORT MCCLELLAN, ALABAMA
A/SLMR NO. 42
THIS CASE INVOLVES A COMPLAINT FILED BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1941 (AFGE) AGAINST UNITED STATES
ARMY SCHOOL/TRAINING CENTER, FORT MCCLELLAN, ALABAMA (USASTC) ALLEGING
VIOLATIONS OF SECTION 19(A)(1), (5) AND (6). THE CASE WAS BEFORE THE
ASSISTANT SECRETARY PURSUANT TO SECTION 205.5(A) OF THE REGULATIONS AND
THE ENTIRE RECORD CONSISTED OF THE PARTIES' BILATERAL STIPULATION OF
FACTS AND ACCOMPANYING EXHIBITS.
THE FACT GIVING RISE TO THE FILING OF THE COMPLAINT INVOLVED LETTERS
WRITTEN BY A USASTC OFFICIAL TO AN EMPLOYEE AND TO THE AFGE PRESIDENT.
THE AFGE HAD BEEN PROCESSING A GRIEVANCE IN BEHALF OF THE EMPLOYEE OVER
A REPRIMAND LETTER. DURING A GRIEVANCE MEETING OVER THE GRIEVANCE A
DISPUTE HAD DEVELOPED WHEN THE AFGE PRESIDENT MADE CERTAIN BROAD
ALLEGATIONS ABOUT EMPLOYEE TREATMENT. THERE WAS NO RESOLUTION OF THE
EMPLOYEE'S GRIEVANCE AT THIS MEETING.
A FEW WEEKS AFTER THIS MEETING THE USASTC COMMANDER WROTE THE
EMPLOYEE A LETTER WHEREIN HE INFORMED HER THAT THE REPRIMAND LETTER THAT
HAD BEEN ISSUED TO HERE WAS BEING WITHDRAWN, BUT THAT HIS DECISION "WAS
IN NO WAY BASED ON THE INFORMATION PRESENTED BY YOUR REPRESENTATIVE, . .
. IN THE (GRIEVANCE MEETING) . . . " THE LETTER THEREAFTER DESCRIBED THE
AFGE PRESIDENT'S REMARKS AT THE GRIEVANCE MEETING AS RELATING MOSTLY TO
"UNSUPPORTED ALLEGATIONS OF UNSATISFACTORY WORKING CONDITIONS." THE
LETTER TO THE EMPLOYEE CONCLUDED, "I BELIEVE THAT HAD YOU APPROACHED
(MANAGEMENT) SOON AFTER THE INCIDENT AND RECEIPT OF THE REPRIMAND WITH
AN ATTITUDE OF CONTRITENESS, THAT ALL OF THE EFFORTS AND TIME INVOLVED
IN YOUR GRIEVANCE COULD HAVE BEEN AVOIDED."
A COPY OF THE COMMANDING OFFICER'S LETTER TO THE EMPLOYEE WAS
FORWARDED TO THE AFGE PRESIDENT. ACCOMPANYING THAT LETTER WAS A
SEPARATE LETTER ADDRESSED DIRECTLY TO THE AFGE PRESIDENT WHEREIN THE
USASTC COMMANDING OFFICER INFORMED THE AFGE PRESIDENT THAT THE REMOVAL
OF THE REPRIMAND WAS "NOT AS A RESULT OF THE (GRIEVANCE) MEETING, AS I
CONSIDER THAT YOUR PRESENTATION IN THAT MEETING DID MORE TO JEOPARDIZE
(THE EMPLOYEE'S) POSITION THAN HELP IT." THE COMMANDING OFFICER'S LETTER
WENT ON TO CRITICIZE THE CONDUCT OF THE UNION REPRESENTATIVE AT THE
GRIEVANCE MEETING AND DEMAND THAT HE EITHER PRESENT A FORMAL GRIEVANCE
WITH RESPECT TO THE ALLEGATIONS CONCERNING EMPLOYEE TREATMENT OR SUBMIT
A WRITTEN RETRACTION. A COPY OF THIS LETTER WAS NOT SENT TO ANY
EMPLOYEES OR PUBLICIZED IN ANY MANNER BY THE USASTC.
ALL ALLEGATIONS OF UNFAIR LABOR PRACTICES WERE BASED ON THE CONTENTS
OF THE TWO LETTERS.
THE COMPLAINT ALLEGED THAT THE CONTENTS OF THE LETTER TO THE EMPLOYEE
VIOLATED THE ORDER IN THAT IT HINTED THAT SHE WOULD BE BETTER ADVISED TO
PRESENT FUTURE GRIEVANCES DIRECTLY TO MANAGEMENT WITHOUT THE
PARTICIPATION OF THE EXCLUSIVE REPRESENTATIVE. THE ASSISTANT SECRETARY
NOTED THAT AFTER A MAJORITY OF EMPLOYEES IN AN APPROPRIATE UNIT HAVE
SELECTED AN EXCLUSIVE REPRESENTATIVE THAT THEREAFTER EMPLOYEES HAVE A
RIGHT, AND AGENCIES AND ACTIVITIES THE OBLIGATION, OF PROCESSING
GRIEVANCES THROUGH THE EXCLUSIVE REPRESENTATION AS PROVIDED FOR IN A
NEGOTIATED AGREEMENT. IN THIS CASE THE EMPLOYEE HAD ELECTED TO PROCESS
HER GRIEVANCE IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT, BUT
THE USASTC WHEN NOTIFYING HER THAT THE REPRIMAND WAS BEING WITHDRAWN,
ALSO INFORMED HER THAT THE SAME RESULT COULD HAVE BEEN OBTAINED HAD SHE
DEALT WITH MANAGEMENT. THE ASSISTANT SECRETARY FOUND THAT THE USASTC
HAD CLEARLY URGED THE BYPASSING OF THE EXCLUSIVE REPRESENTATIVE IN THE
ADJUSTMENT OF ANY FUTURE GRIEVANCES AND AT THE SAME TIME IMPLICITLY
SUGGESTED TO THE EMPLOYEE THAT THERE WOULD BE EASIER ADJUSTMENT OF
GRIEVANCES IF SHE DEALT WITH MANAGEMENT. SUCH CONDUCT WAS FOUND TO BE A
FAILURE TO CONSULT, CONFER OR NEGOTIATE IN VIOLATION OF SECTION 19(A)(6)
OF THE ORDER AND AN IMPLIED PROMISE OF EASIER ADJUSTMENT OF GRIEVANCES
THROUGH DIRECT BARGAINING WITH MANAGEMENT WHICH RESTRAINS OR COERCES
EMPLOYEES IN THE EXERCISE OF THEIR PROTECTED RIGHT TO USE THE NEGOTIATED
GRIEVANCE PROCEDURE AND THEIR EXCLUSIVE BARGAINING REPRESENTATIVE IN
VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
WITH RESPECT TO THE LETTER FROM THE USASTC COMMAND TO THE AFGE
PRESIDENT, THE COMPLAINT ALLEGES THAT THE USASTC HAD DISPARAGED THE
ABILITY AND INTEGRITY OF THE AFGE PRESIDENT. THE ASSISTANT SECRETARY
FOUNDNO BASIS FOR CONCLUDING THAT THESE EXPRESSIONS OF OPINION MADE TO
AN OFFICER OF A UNION IN AND OF THEMSELVES CONSTITUTE INTERFERENCE WITH
EMPLOYEES' SECTION 1(A) RIGHTS. IT WAS NOTED THAT THE CONTENT OF THE
LETTER CONTAINED NO THREATS OF PENALTY OR REPRISAL WHICH MIGHT HAVE
TENDED TO IMPEDE HIS FUTURE ACTIVITY AS A UNION REPRESENTATIVE OR ANY
STATEMENT WHICH MIGHT INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN
THE EXERCISE OF RIGHTS GUARANTEED BY THE ORDER.
THE LETTER TO THE AFGE PRESIDENT WAS ALSO ALLEGED IN THE COMPLAINT TO
BE A VIOLATION OF SECTION 19(A)(6)OF THE ORDER. WITH RESPECT TO THE
PORTION OF THIS LETTER WHEREIN THE USASTC HAD INFORMED THE AFGE
PRESIDENT THAT THE ACTION TAKEN IN THE REMOVING OF THE LETTER OF
REPRIMAND WAS NOT A RESULT OF THE GRIEVANCE MEETING, THE ASSISTANT
SECRETARY FOUND THAT IT CONSTITUTED A REFUSAL AND FAILURE TO CONFER,
CONSULT OR NEGOTIATE IN GOOD FAITH IN THE PROCESSING OF GRIEVANCES AND
WAS THEREFORE IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
THE ASSISTANT SECRETARY DISMISSED THE 19(A)(5) ALLEGATION BASED ON
THE VIEW THAT THE EVENTS COMPLAINED ABOUT RELATED TO THE CONDUCT OF THE
BARGAINING RELATIONSHIP RATHER THAN TO THE ACCORDING OF APPROPRIATE
RECOGNITION.
UNITED STATES ARMY SCHOOL/TRAINING CENTER
FORT MCCLELLAN, ALABAMA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1941
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO REGIONAL
ADMINISTRATOR J. Y. CHENNAULT'S DECEMBER 7, 1970 ORDER TRANSFERRING CASE
TO THE ASSISTANT SECRETARY OF LABOR PURSUANT TO SECTION 205.5(A) OF THE
REGULATIONS. UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT
CASE, WHICH INCLUDED THE PARTIES' BILATERAL STIPULATION OF FACTS AND
ACCOMPANYING EXHIBITS, /1/ I FIND AS FOLLOWS:
THE PARTIES' STIPULATION OF FACTS REFLECTS THE FOLLOWING:
IN A LETTER DATED APRIL 24, /2/ THE COMPLAINANT FILED AN UNFAIR LABOR
PRACTICE CHARGE PURSUANT TO SECTION 203.2 OF THE RULES AND REGULATIONS
WHEREIN IT WAS CONTENDED THAT THE RESPONDENT HAD VIOLATED EXECUTIVE
ORDER 11491 BY LETTERS OF MARCH 23 TO THE COMPLAINANT'S PRESIDENT AND TO
ONE OF RESPONDENT'S EMPLOYEES, MRS. ANNIE H. BOATMAN. AS AN INFORMAL
SATISFACTORY RESOLUTION OF THE CHARGE, THE COMPLAINANT SOUGHT LETTERS OF
APOLOGY. THE COMMANDING OFFICER OF THE RESPONDENT REJECTED THE CHARGE
AND STATED HIS AGREEMENT TO SUBMITTING THE ALLEGATIONS TO THE ASSISTANT
SECRETARY OF LABOR FOR REVIEW BY WAY OF STIPULATION.
ON JUNE 25, A COMPLAINT WAS FILED AGAINST THE RESPONDENT ALLEGING
VIOLATIONS OF SECTIONS 19(A)(1), (5) AND (6) OF EXECUTIVE ORDER 11491 IN
THAT BY THE MARCH 23 LETTERS TO THE COMPLAINANT'S PRESIDENT AND TO MRS.
BOATMAN THE RESPONDENT HAD, (1) DISPARAGED THE ABILITY AND INTEGRITY OF
A COMPLAINT OFFICIAL; (2) HINTED TO A GRIEVING EMPLOYEE THAT SHE WOULD
HAVE BEEN BETTER ADVISED TO PRESENT HER GRIEVANCE DIRECTLY TO MANAGEMENT
WITHOUT THE PARTICIPATION OF THE COMPLAINANT; (3) REFUSED TO ACCORD
APPROPRIATE RECOGNITION TO THE COMPLAINANT; AND (4) FAILED TO HAVE A
MEANINGFUL MEETING TO RESOLVE A GRIEVANCE. THE COMPLAINT WAS PROPERLY
SERVED ON THE RESPONDENT.
IN THE PARTIES' STIPULATION OF FACTS IT IS REQUESTED THAT THE
ASSISTANT SECRETARY OF LABOR RENDER A DECISION WITH REGARD TO THE
RESPONDENT'S ABOVE-MENTIONED LETTERS TO THE COMPLAINANT'S PRESIDENT AND
TO EMPLOYEE MRS. ANNIE BOATMAN.
THE COMPLAINANT HAS EXCLUSIVE RECOGNITION FOR A UNIT OF THE
RESPONDENT'S EMPLOYEES. THE PARTIES EXECUTED A COLLECTIVE BARGAINING
AGREEMENT ON MARCH 17, 1969 WHICH HAD AN EXPIRATION DATE OF MARCY 17,
1971.
ON JANUARY 12, THE COMPLAINANT'S PRESIDENT FILED A GRIEVANCE WITH THE
RESPONDENT, PURSUANT TO THE NEGOTIATED GRIEVANCE PROCEDURE, ON BEHALF OF
EMPLOYEE MRS. ANNIE BOATMAN OBJECTING TO A WRITTEN REPRIMAND THAT HAD
BEEN GIVEN MRS. BOATMAN ON OCTOBER 31, 1969. ON MARCH 2 A MEETING WAS
HELD IN ACCORDANCE WITH THE NEGOTIATED GRIEVANCE PROCEDURE. IN
ATTENDANCE WERE MRS. BOATMAN, THE COMPLAINANT'S PRESIDENT, ACTING AS
MRS. BOATMAN'S REPRESENTATIVE, AND THE RESPONDENT'S DEPUTY COMMANDER.
DURING THE COURSE OF THE GRIEVANCE MEETING A DISPUTE DEVELOPED
BETWEEN THE COMPLAINANT'S PRESIDENT AND THE DEPUTY COMMANDER WHEN THE
FORMER MADE CERTAIN ALLEGATIONS CONCERNING EMPLOYEE TREATMENT AT THE
ACTIVITY. THE DEPUTY COMMANDER REPEATEDLY ASKED THE COMPLAINANT'S
PRESIDENT TO EITHER SUPPORT THE CONTENTION WITH DETAILS OR WITHDRAW THE
CRITICISM. THE GRIEVANCE MEETING ENDED WITHOUT A RESOLUTION OF EITHER
THE GRIEVANCE OR THE "SIDE DISPUTE" THAT HAD DEVELOPED BETWEEN THE
COMPLAINANT'S PRESIDENT AND THE DEPUTY COMMANDER.
BY LETTER SENT TO MRS. BOATMAN ON MARCH 23, THE RESPONDENT'S
COMMANDING OFFICER INFORMED HER THAT THE WRITTEN REPRIMAND WHICH HAD
GIVEN RISE TO THE ABOVE-DESCRIBED GRIEVANCE WAS BEING WITHDRAWN INASMUCH
AS, "I FEEL THAT THE REPRIMAND HAS SERVED ITS INTENDED PURPOSE AND
BECAUSE OF YOUR OTHERWISE GOOD WORK RECORD . . . " THE LETTER CONCLUDED:
"MY DECISION TO REMOVE THE REPRIMAND IS IN NO WAY BASED ON THE
INFORMATION PRESENTED BY YOUR REPRESENTATIVE, . . . IN THE MEETING ON 2
MARCH 1970. AS YOU WILL RECALL, THE COMMENTS OFFERED . . . (BY HIM)
RELATED MOSTLY TO THE UNSUPPORTED ALLEGATIONS OF UNSATISFACTORY WORKING
CONDITIONS AT THE NOBLE ARMY HOSPITAL. I BELIEVE THAT HAD YOU
APPROACHED EITHER (CHIEF, NURSING SERVICE) . . . OR ME REASONABLY SOON
AFTER THE INCIDENT AND RECEIPT OF THE REPRIMAND WITH AN ATTITUDE OF
CONTRITENESS, THAT ALL OF THE EFFORTS AND TIME INVOLVED IN YOUR
GRIEVANCE COULD HAVE BEEN AVOIDED."
ALSO ON MARCH 23, THE COMMANDING OFFICER FORWARDED A COPY OF THE
ABOVE-MENTIONED LETTER TO THE COMPLAINANT'S PRESIDENT AND THE COMMANDING
OFFICER OF THE NOBLE ARMY HOSPITAL. ACCOMPANYING THE LETTER TO MRS.
BOATMAN THE RESPONDENT, ON MARCH 23, SENT A SEPARATE LETTER ADDRESSED
DIRECTLY TO THE COMPLAINANT'S PRESIDENT WHICH STATED IN PART:
"THE ACTION THAT I AM TAKING IS NOT AS A RESULT OF THE (GRIEVANCE)
MEETING, AS I CONSIDER THAT YOUR PRESENTATION IN THAT MEETING DID MORE
TO JEOPARDIZE MRS. BOATMAN'S POSITION THAN HELP IT. MY ACTION IS BASED
UPON AN INDEPENDENT EVALUATION OF HER CONDUCT ON THE DATE IN QUESTION
AND HER LONG TIME RECORD OF GOOD SERVICE. IT IS MY DESIRE THAT THERE BE
OPEN COMMUNICATION BETWEEN SUPERVISORS AND EMPLOYEES. I AM PRESENTLY
INTERESTED IN THE WELFARE OF ALL OF MY CIVILIAN EMPLOYEES AND WILL
LISTEN TO THEIR COMPLAINTS AFTER THEY HAVE MADE HONEST EFFORTS TO
RESOLVE ANY DIFFERENCES WITH THEIR SUPERVISORS. I AM ALSO INTERESTED IN
AND AWARE OF YOUR RIGHTS TO REPRESENT EMPLOYEES EITHER INFORMALLY OR
FORMALLY."
THIS LETTER STATED WITH RESPECT TO THE COMPLAINANT PRESIDENT'S
CONDUCT AT THE GRIEVANCE MEETING:
" . . . YOU (MADE) BROAD ALLEGATIONS CONCERNING THE TREATMENT OF
CIVILIAN ASSIGNED TO NURSING SERVICE IN THE HOSPITAL WITH PARTICULAR
EMPHASIS ON RELUCTANCE OF CIVILIANS TO WORK ON THE SURGICAL WARD, (YOU
WERE) REQUESTED EITHER (TO) PRESENT A FORMAL GRIEVANCE SIGNED BY
DISGRUNTLED CIVILIANS OR SUBMIT A WRITTEN RETRACTION OF YOUR BROAD
ALLEGATIONS. YOU HAVE NOT, AS YET, RESPONDED TO (THE) REQUEST. AS
PRESIDENT OF LODGE 1941, YOU HAVE CONSIDERABLE RESPONSIBILITY TO YOUR
MEMBERS AND TO THE OFFICE TO WHICH YOU HAVE BEEN ELECTED. INCLUDED IN
YOUR LEADERSHIP ROLE IS YOUR RESPONSIBILITY TO CONFINE YOUR TESTIMONY IN
A FORMAL GRIEVANCE TO THE ISSUE AT HAND RATHER THAN TO RELY UPON VAGUE,
GENERALIZED STATEMENTS. IN SHORT, YOU HAVE TO ACT RESPONSIBLY. IN THE
AFOREMENTIONED GRIEVANCE MEETING YOU WERE NOT INCLINED TO MAKE OPEN
CONDEMNATION OF MANAGEMENT OF THE HOSPITAL THAN TO CONFINE YOUR
TESTIMONY TO THE SIMPLE ISSUE IN MRS. BOATMAN'S GRIEVANCE.
IN THE INTEREST OF PERFORMING MY COMMAND RESPONSIBILITY RELATIVE TO
THE MORALE AND WELFARE OF CIVILIANS AT NOBLE ARMY HOSPITAL, I MUST AGAIN
ASK THAT YOU COMPLY WITH . . . (THE DEPUTY COMMANDER'S) REQUEST. I
SHALL EXPECT YOUR REPLY NOT LATER THAN 15 APRIL 1970."
A COPY OF THE ABOVE-QUOTED LETTER WAS NOT SENT TO MRS. BOATMAN.
THE GRIEVANCE PROCEDURE SET FORTH IN THE NEGOTIATED AGREEMENT BETWEEN
THE PARTIES PROVIDES THAT "THE DISPUTE OR GRIEVANCE SHALL FIRST BE TAKEN
UP BY THE AGGRIEVED EMPLOYEE, THE STEWARD IF REQUESTED, AND THE
APPROPRIATE SUPERVISOR . . . " IF A GRIEVANCE IS NOT SETTLED AT THE
FIRST STEP THE EMPLOYEE MUST ELECT WHETHER HE WISHES TO PROCESS THE
GRIEVANCE THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE OR THE "ARMY
GRIEVANCE PROCEDURE." MRS. BOATMAN'S GRIEVANCE WAS PROCESSED THROUGH THE
NEGOTIATED GRIEVANCE PROCEDURE. STEPS 2 AND 3 OF THE NEGOTIATED
GRIEVANCE PROCEDURE PROVIDES FOR UNION PARTICIPATION IN ALL PHASES OF
THE PROCESSING.
ALL OF THE FACTS SET FORTH ABOVE ARE DERIVED FROM THE PARTIES'
STIPULATION AND ACCOMPANYING EXHIBITS.
THE FIRST ALLEGATION IN THE COMPLAINT ALLEGES THAT THE RESPONDENT'S
DISPARAGING OF THE ABILITY AND INTEGRITY OF THE COMPLAINANT'S PRESIDENT
VIOLATES SECTION 19(A)(1) OF THE ORDER. SECTION 19(A)(1) PROHIBITS AN
AGENCY OR ACTIVITY FROM ENGAGING IN CONDUCT WHICH WOULD "INTERFERE WITH,
RESTRAIN OR COERCE" AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY
THE EXECUTIVE ORDER, SUCH RIGHTS BEING ENUNCIATED IN SECTION 1(A) OF THE
ORDER. THE STIPULATION REVEALS THAT THE COMPLAINED OF LETTER WAS SENT
DIRECTLY BY THE RESPONDENT TO THE COMPLAINANT'S REPRESENTATIVE IN THE
LATTER'S CAPACITY AS PRESIDENT OF THE LOCAL WITHOUT ANY EVIDENCE OF AN
INTENTION TO MAKE THE CONTENTS PUBLIC. WHILE THE RESPONDENT'S
OBSERVATIONS ON "LEADERSHIP RESPONSIBILITY" MAY HAVE BEEN PERSONALLY
OFFENSIVE TO THE COMPLAINANT'S PRESIDENT, I FIND NO BASIS FOR CONCLUDING
THAT SUCH EXPRESSIONS OF OPINION MADE TO AN OFFICER OF THE COMPLAINANT
IN AND OF THEMSELVES CONSTITUTE INTERFERENCE WITH EMPLOYEES' SECTION
1(A) RIGHTS OR THAT THE SENDING OF THE LETTER INTERFERED WITH THE
SECTION 1(A) RIGHTS OF EMPLOYEES. IN THE CIRCUMSTANCES, I FIND THAT THE
CONTENT OF THE RESPONDENT'S LETTER TO THE COMPLAINANT'S PRESIDENT, ALSO
AN EMPLOYEE OF THE ACTIVITY, CONTAINS NO EXPLICIT OR IMPLICIT THREATS OF
PENALTY OR REPRISAL WHICH MIGHT HAVE TENDED TO IMPEDE HIS FUTURE
ACTIVITY AS A UNION REPRESENTATIVE OR ANY STATEMENT WHICH MIGHT
INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF RIGHTS
ASSURED BY SECTION 1(A) OF THE ORDER. ACCORDINGLY, I FIND THAT THE
COMPLAINT, INSOFAR AS IT ALLEGES A VIOLATION OF SCHEDULE 19(A)(1) BASED
ON ALLEGED DISPARAGEMENT OF THE ABILITY AND INTEGRITY OF THE
COMPLAINANT'S PRESIDENT, SHOULD BE DISMISSED.
IT IS ALSO ALLEGED IN THE COMPLAINT THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(1)(5) AND (6) BY HINTING TO AN EMPLOYEE THAT SHE WOULD BE
BETTER ADVISED TO PRESENT HER FUTURE GRIEVANCES DIRECTLY TO MANAGEMENT
WITHOUT THE PARTICIPATION OF THE COMPLAINANT. THE STIPULATION REVEALS
THAT IN ITS LETTER TO MRS. BOATMAN IN ADDITION TO NOTIFYING HER THAT THE
REPRIMAND WAS BEING WITHDRAWN, THEREBY REMOVING THE ESSENTIAL CAUSE OF
THE GRIEVANCE, THE RESPONDENT'S COMMANDING OFFICER STATED THAT HIS
DECISION WAS IN NO WAY BASED ON THE INFORMATION PRESENTED BY THE
COMPLAINANT'S REPRESENTATIVE AND INFORMED HER THAT THE SAME RESULT WOULD
HAVE BEEN OBTAINED WITHOUT THE ACCOMPANYING EFFORT AND TIME INVOLVED
WITH THE GRIEVANCE HAD SHE DEALT DIRECTLY WITH MANAGEMENT.
IT IS THE STATED POLICY OF THE EXECUTIVE ORDER TO MAINTAIN
CONSTRUCTIVE AND COOPERATIVE RELATIONSHIPS BETWEEN LABOR ORGANIZATIONS
AND MANAGEMENT OFFICIALS. IN FURTHERANCE OF THAT GOAL THE ORDER
PROVIDES FOR THE SELECTION OF A LABOR ORGANIZATION AS THE EXCLUSIVE
REPRESENTATIVE OF A GROUP OF EMPLOYEES IN AN APPROPRIATE UNIT AND
SECTION 19(A)(6) MAKES IT VIOLATIVE TO "REFUSE TO CONSULT, CONFER, OR
NEGOTIATE WITH A LABOR ORGANIZATION" THAT HAS BEEN SO SELECTED BY THE
EMPLOYEES. THE SCOPE OF THIS MANDATE IS INDICATED BY SECTION 10(E),
WHICH PROVIDES, IN PERTINENT PART,
THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR
EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT. /3/
ONCE A BARGAINING REPRESENTATIVE HAS BEEN DESIGNATED BY A MAJORITY OF
THE EMPLOYEES IN AN APPROPRIATE UNIT, THE OBLIGATION OF THE AGENCY OR
ACTIVITY TO DEAL WITH SUCH REPRESENTATIVE CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES AND OTHER MATTERS AFFECTING WORKING
CONDITIONS OF ALL EMPLOYEES WITHIN THE UNIT BECOMES EXCLUSIVE AND
CARRIES WITH IT A CORRELATIVE DUTY NOT TO TREAT WITH OTHERS. TO
DISREGARD THE EXCLUSIVE REPRESENTATIVE SELECTED BY A MAJORITY OF
EMPLOYEES AND ATTEMPT TO NEGOTIATE OR DEAL WITH CERTAIN EMPLOYEES
INDIVIDUALLY CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE
UNIT VIOLATES THE ESSENTIAL PRINCIPLES OF EXCLUSIVE RECOGNITION AND
UNDERMINES THE EXCLUSIVE REPRESENTATIVE'S STATUS UNDER THE ORDER.
EMPLOYEES HAVE A RIGHT, AND AGENCIES AND ACTIVITIES THE OBLIGATION, TO
PROCESS GRIEVANCES THROUGH AN EXCLUSIVE REPRESENTATIVE AS PROVIDED FOR
IN A NEGOTIATED AGREEMENT.
IN THE SUBJECT CASE, MRS. BOATMAN HAD ELECTED TO PURSUE HER GRIEVANCE
THROUGH HERE EXCLUSIVE REPRESENTATIVE IN ACCORDANCE WITH THE PROVISIONS
OF THE PARTIES'AGREEMENT. DESPITE THIS SELECTION, WHEN THE RESPONDENT
NOTIFIED MRS. BOATMAN THAT THE REPRIMAND WAS BEING WITHDRAWN, IT
INFORMED HER THAT THE SAME RESULT COULD HAVE BEEN OBTAINED HAD SHE DEALT
WITH MANAGEMENT. THE REFERENCE TO AVOIDING THE EFFORTS AND TIME
INVOLVED IN THE GRIEVANCE IMPLIES THAT IT WOULD BE LESS BURDENSOME TO
RESOLVE GRIEVANCES BY DEALING DIRECTLY WITH MANAGEMENT RATHER THAN
THROUGH THE EXCLUSIVE REPRESENTATIVE. THE RESPONDENT THEREFORE CLEARLY
URGED THE BYPASSING OF THE EXCLUSIVE REPRESENTATIVE IN THE ADJUSTMENT OF
ANY FUTURE GRIEVANCE AND AT THE SAME TIME IMPLICITLY SUGGESTED TO THE
EMPLOYEE THAT THERE WOULD BE AN EASIER ADJUSTMENT OF GRIEVANCES IF SHE
DEALT DIRECTLY WITH MANAGEMENT. SUCH A SUGGESTION IS INCONSISTENT WITH
THE EXCLUSIVE REPRESENTATION RELATIONSHIP DESCRIBED ABOVE AND RUNS
COUNTER TO THE VERY PRACTICE AND PHILOSOPHY OF EXCLUSIVE RECOGNITION.
THUS, THE EXISTENCE OF AN EXCLUSIVE RELATIONSHIP REQUIRES, AS A MINIMUM,
THAT AN AGENCY OR ACTIVITY REFRAIN FROM INVITING EMPLOYEES TO DEAL
DIRECTLY WITH MANAGEMENT AS TO GRIEVANCES.
ACCORDINGLY, I FIND THAT THE ABOVE-DESCRIBED CONDUCT CONSTITUTES AN
ATTEMPT TO BYPASS AND UNDERMINE THE STATUS OF THE EXCLUSIVE
REPRESENTATIVE SELECTED BY THE EMPLOYEES AND THEREFORE CONSTITUTES A
FAILURE TO CONSULT, CONFER OR NEGOTIATE IN VIOLATION OF SECTION 19(A)(6)
OF THE ORDER. I FIND FURTHER THAT BY IMPLICITLY PROMISING MRS. BOATMAN
MORE FAVORABLE AND EXPEDITIOUS RESOLUTION OF HER GRIEVANCES WHEN THE
GRIEVANCE PROCEDURE UNDER THE PARTIES' AGREEMENT IS BYPASSED IN FAVOR OF
DIRECT DISCUSSIONS WITH MANAGEMENT, THE RESPONDENT ALSO INTERFERED WITH
THE SECTION 1(A) RIGHTS OF EMPLOYEES IN VIOLATION OF SECTION 19(A)(1) OF
THE ORDER.
AS NOTED ABOVE, THE RESPONDENT'S MARCH 23 LETTER TO THE COMPLAINANT'S
PRESIDENT STATED, IN PART, THAT,
THE ACTION THAT I AM TAKING IS NOT AS A RESULT OF THE (GRIEVANCE)
MEETING, AS I CONSIDER THAT YOUR PRESENTATION IN THAT MEETING DID MORE
TO JEOPARDIZE MRS. BOATMAN'S POSITION THAN HELP IT.
I HAVE CONCLUDED THAT IN ALL THE CIRCUMSTANCES THE CONTENTS OF THE
LETTER TO THE COMPLAINANT'S PRESIDENT DOES NOT CONSTITUTE IMPROPER
INTERFERENCE WITH EMPLOYEE RIGHTS IN VIOLATION OF SECTION 19(A)(1).
HOWEVER, I FIND THAT IN CONVEYING TO THE COMPLAINANT'S REPRESENTATIVE,
WHO WAS PROCESSING THE GRIEVANCE, THE CLEAR MESSAGE THAT THE ADJUSTMENT
OF MRS. BOATMAN'S GRIEVANCE WAS MADE STRICTLY ON THE BASIS OF UNILATERAL
CONSIDERATIONS, AND WAS NOT THE RESULT OF GOOD FAITH EFFORTS BY BOTH THE
COMPLAINANT AND THE RESPONDENT, THE RESPONDENT VIOLATED SECTION 19(A)(6)
OF THE ORDER. IN THE NEGOTIATING OF AN AGREEMENT AN AGENCY OR ACTIVITY
WOULD NOT BE VIEWED TO BE BARGAINING IN GOOD FAITH WITH THE EXCLUSIVE
REPRESENTATIVE IF IT TOOK THE POSITION THAT IT WOULD DECIDE TERMS
UNILATERALLY RATHER THAN AS A RESULT OF THE BARGAINING PROCESS.
LIKEWISE, IN THE PROCESSING OF GRIEVANCES PURSUANT TO A NEGOTIATED
GRIEVANCE PROCEDURE, GOOD FAITH IS NOT DEMONSTRATED WHERE, AS HERE, AN
ACTIVITY INFORMS THE EXCLUSIVE REPRESENTATIVE THAT A GRIEVANCE HAS BEEN
DECIDED NOT ON THE BASIS OF THE UNDERTAKINGS OF THE GRIEVANCE PROCEDURE
BUT ON THE ACTIVITY'S OWN PERSONAL JUDGMENTS. THIS, IN MY VIEW,
CONSTITUTES A REFUSAL TO CONSULT, CONFER OR NEGOTIATE AS REQUIRED BY THE
EXECUTIVE ORDER.
WITH RESPECT TO THE SECTION 19(A)(5) ALLEGATION CONTAINED IN THE
COMPLAINT, THAT PROVISION BY ITS TERMS REFERS TO MATTERS RELATED TO THE
ACCORDING OF APPROPRIATE RECOGNITION RATHER THAN TO THE CONDUCT OF THE
BARGAINING RELATIONSHIP, AS IS INVOLVED HEREIN. ACCORDINGLY, THE
SECTION 19(A)(5) ALLEGATION CONTAINED IN THE COMPLAINT SHOULD BE
DISMISSED.
BY URGING THE BYPASSING OF THE EXCLUSIVE REPRESENTATIVE AND
SUGGESTING THAT GRIEVANCES BE PROCESSED DIRECTLY WITH MANAGEMENT AND
THAT THE ADJUSTMENT OF THE GRIEVANCES MIGHT BE ACHIEVED MORE EASILY IF
THE EXCLUSIVE REPRESENTATIVE IS BYPASSED IN FAVOR OF DIRECT DISCUSSIONS
WITH MANAGEMENT, THE ACTIVITY HAS VIOLATED SECTIONS 19(A)(1) AND (6) OF
EXECUTIVE ORDER 11419.
THE ACTIVITY FURTHER FAILED TO CONSULT, CONFER OR NEGOTIATE WITH THE
EXCLUSIVE REPRESENTATIVE IN VIOLATION OF SECTION 19(A)(6) BY STATING TO
THE COMPLAINANT THAT A GRIEVANCE HAS BEEN ADJUSTED ON THE BASIS OF
UNILATERAL CONSIDERATIONS APART FROM THE UNDERTAKINGS OF THE NEGOTIATED
GRIEVANCE PROCEDURE.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, I
SHALL ORDER THE RESPONDENT TO CEASE AND DESIST THEREFROM AND TAKE
SPECIFIC AFFIRMATIVE ACTION, AS SET FORTH BELOW, DESIGNED TO EFFECTUATE
THE POLICIES OF THE ORDER.
PURSUANT TO SECTION 6)B) OF EXECUTIVE ORDER 11491 AND SECTION
203.25(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE UNITED STATES ARMY
SCHOOL/TRAINING CENTER, FORT MCCLELLAN, ALABAMA, SHALL:
1. CEASE AND DESIST FROM:
(A) SOLICITING EMPLOYEES REPRESENTED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1941 TO DEAL DIRECTLY WITH
MANAGEMENT WITH RESPECT TO THE RESOLUTION OF THEIR GRIEVANCES.
(B) PROMISING EMPLOYEES BENEFITS IN ORDER TO RESTRAIN THEM FROM
UTILIZING THE NEGOTIATED GRIEVANCE PROCEDURE AND THEIR EXCLUSIVE
REPRESENTATIVE.
(C) REFUSING TO NEGOTIATE IN GOOD FAITH IN THE PROCESSING OF
GRIEVANCES PURSUANT TO THE PROVISIONS OF AN AGREEMENT WITH THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A)
OF EXECUTIVE ORDER 11491.
2. THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER;
(A) UPON REQUEST, CONSULT, CONFER OR NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1941, IN THE
PROCESSING OF GRIEVANCES.
(B) POST AT ITS FACILITY COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX." COPIES OF SAID NOTICE ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS SHALL BE
SIGNED BY THE COMMANDING OFFICER OF THE ACTIVITY AND SHALL BE POSTED
UPON RECEIPT THEREOF AND BE MAINTAINED FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE ACTIVITY COMMANDING OFFICER SHALL
TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN 10 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT INSOFAR AS IT ALLEGES
VIOLATIONS OF SECTION 19(A)(5) AND OTHER VIOLATIONS OF SECTION 19(A)(1)
AND (6) BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MAY 14, 1971
/1/ THE PARTIES DID NOT FILE BRIEFS.
/2/ UNLESS OTHERWISE INDICATED, ALL DATED OCCURRED IN 1970.
/3/ THIS REQUIREMENT OF THE RIGHT OF PARTICIPATION BY A LABOR
ORGANIZATION WHICH IS THE EXCLUSIVE REPRESENTATIVE IS GRANTED
NOTWITHSTANDING SECTION 7(D)(1) OF THE ORDER WHICH STATES, "RECOGNITION,
IN WHATEVER FORM ACCORDED, DOES NOT -- PRECLUDE AN EMPLOYEE, REGARDLESS
OF WHETHER HE IS A MEMBER OF A LABOR ORGANIZATION, FROM BRINGING MATTERS
OF PERSONAL CONCERN TO THE ATTENTION OF APPROPRIATE OFFICIALS . . . OR
FROM CHOOSING HIS OWN REPRESENTATIVE IN A GRIEVANCE OR APPELLATE
ACTION;"
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT SOLICIT EMPLOYEES REPRESENTED BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1941 TO DEAL DIRECTLY WITH
MANAGEMENT WITH RESPECT TO THE RESOLUTION OF THEIR GRIEVANCES.
WE WILL NOT REFUSE TO NEGOTIATE IN GOOD FAITH WITH THE EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES IN THE PROCESSING OF GRIEVANCES FILED
PURSUANT TO THE TERMS OF OUR AGREEMENT WITH THAT LABOR ORGANIZATION.
WE WILL NOT PROMISE EMPLOYEES A MORE FAVORABLE AND FASTER ADJUSTMENT
OF GRIEVANCES THROUGH DIRECT BARGAINING WITH MANAGEMENT IN ORDER TO
RESTRAIN THEM FROM THE USE OF THE NEGOTIATED GRIEVANCE PROCEDURE AND
THEIR EXCLUSIVE BARGAINING REPRESENTATIVE.
WE WILL, UPON REQUEST CONSULT, CONFER OR NEGOTIATE IN GOOD FAITH,
WITH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1941 IN
THE PROCESSING OF GRIEVANCES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY SECTION
1(A) OF EXECUTIVE ORDER 11491.
DATED . . . BY . . . (SIGNATURE) (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISION, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS: ROOM 300, 1371 PEACHTREE
STREET, N.E., ATLANTA, GEORGIA 30390.
1 A/SLMR 41; P. 219; CASE NOS. 32-1829(RO), 32-1702(RO),
32-1794(RO), 32-1734(RO), 32-1798(RO); MAY 14, 1971.
DEPARTMENT OF THE ARMY,
PICATINNY ARSENAL, DOVER, NEW JERSEY
A/SLMR NO. 41
THIS CASE AROSE AS A RESULT OF THE FILING OF FIVE REPRESENTATION
PETITIONS BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
225 (AFGE) SEEKING ELECTIONS IN FIVE SEPARATE UNITS OF EMPLOYEES OF THE
ACTIVITY. LOCAL 1437, NATIONAL FEDERATION OF FEDERAL EMPLOYEES; (NFFE)
INTERVENED IN THE AFGE PETITION INVOLVING CERTAIN EMPLOYEES OF THE
ACTIVITY'S FELTMAN RESEARCH LABORATORY. THE AFGE SOUGHT THE FOLLOWING
UNITS:
1. ALL NONPROFESSIONAL NONSUPERVISORY, GENERAL SCHEDULE EMPLOYEES OF
THE ACTIVITY'S FELTMAN RESEARCH LABORATORY EXCLUDING, AMONG OTHERS,
PROFESSIONAL EMPLOYEES, SUPERVISORS, GUARDS, AND EMPLOYEES WORKING IN
THE MATERIALS ENGINEERING LABORATORY, A MAJOR OPERATIONAL DIVISION OF
THE FELTMAN RESEARCH LABORATORY.
2. ALL PROFESSIONAL AND NONPROFESSIONAL NONSUPERVISORY, GENERAL
SCHEDULE EMPLOYEES OF THE ACTIVITY'S COMPTROLLER AND PROGRAMS OFFICE
EXCLUDING, AMONG OTHERS, SUPERVISORS AND GUARDS.
3. ALL NONPROFESSIONAL, NONSUPERVISORY GENERAL SCHEDULE EMPLOYEES OF
THE ACTIVITY'S INDUSTRIAL SERVICE DIRECTORATE, EXCLUDING, AMONG OTHERS
SUPERVISORS, PROFESSIONAL EMPLOYEES AND GUARDS.
4/ ALL NONPROFESSIONAL, NONSUPERVISORY, GENERAL SCHEDULE EMPLOYEES OF
THE ACTIVITY'S INSTALLATION SUPPORT OFFICE, EXCLUDING, AMONG OTHERS,
PROFESSIONALS, SUPERVISORS AND GUARDS.
5. ALL NONPROFESSIONAL, NONSUPERVISORY GENERAL SCHEDULE EMPLOYEES OF
THE ACTIVITY'S QUALITY ASSURANCE DIRECTORATE, EXCLUDING, AMONG OTHERS,
PROFESSIONALS, WAGE BOARD EMPLOYEES, SUPERVISORS AND GUARDS.
THE ACTIVITY TOOK THE POSITION THAT THE UNITS SOUGHT BY THE AFGE WERE
INAPPROPRIATE BECAUSE (1) THEY WERE BASED, PRIMARILY, ON THE EXTENT TO
WHICH EMPLOYEES HAD BEEN ORGANIZED, (2) THEY WOULD NOT PROMOTE EFFECTIVE
DEALINGS, AND (3) THE EMPLOYEES IN THE UNITS SOUGHT DID NOT SHARE A
COMMUNITY OF INTEREST. IN THE CASE INVOLVING THE FELTMAN RESEARCH
LABORATORY, THE NFFE, TOOK THE POSITION THAT THE UNIT CLAIMED BY THE
AFGE WAS APPROPRIATE.
THE ASSISTANT SECRETARY CONCLUDED THAT THE PETITIONED FOR UNITS WERE
NOT APPROPRIATE. IN REACHING THIS DETERMINATION, THE ASSISTANT
SECRETARY NOTED THAT MANY OF THE ACTIVITY'S DIRECTORATES NOT COVERED BY
THE SUBJECT PETITIONS CONTAINED EMPLOYEES WHO POSSESS SIMILAR SKILLS AND
PERFORM SIMILAR JOB FUNCTIONS AS THOSE PERFORMED BY THE EMPLOYEES IN THE
UNITS SOUGHT. HE ALSO NOTED THE ACTIVITY'S CENTRALIZED PERSONNEL
POLICIES AND PRACTICES AND THAT THERE WAS EVIDENCE OF TRANSFERS BETWEEN
EMPLOYEES IN THE CLAIMED UNITS AND OTHER DIRECTORATES AND OFFICERS OF
THE ACTIVITY. IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY
CONCLUDED THAT A BASIS DID NOT EXIST FOR THE ESTABLISHMENT OF UNITS AS
SOUGHT BY AFGE, ON A DIRECTORATE-WIDE BASIS. IN THE ASSISTANT
SECRETARY'S VIEW, THE EMPLOYEES IN SUCH UNITS DID NOT POSSESS A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST. MOREOVER, HE NOTED THAT THE
ESTABLISHMENT OF THE PETITIONED FOR UNITS WOULD NEITHER PROMOTE
EFFECTIVE DEALINGS, NOR CONTRIBUTE TO THE EFFICIENCY OF AGENCY
OPERATIONS. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE
PETITIONS BE DISMISSED.
DEPARTMENT OF THE ARMY,
PICATINNY ARSENAL
DOVER, NEW JERSEY
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 225
AND
LOCAL 1437, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
DEPARTMENT OF THE ARMY,
PICATINNY ARSENAL
DOVER, NEW JERSEY
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 225
UPON PETITIONS DULY FILED UNDER SECTION 6 EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER THOMAS B. DALY.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED. 4 UPON THE ENTIRE RECORD IN
THESE CASES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 32-1829, PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO LOCAL 225, HEREIN CALLED AFGE, SEEKS AN
ELECTION IN A UNIT OF:
ALL CLASSIFIED ACT EMPLOYEES OF THE FELTMAN RESEARCH LABORATORY
PICATINNY ARSENAL, DOVER, NEW JERSEY, EXCLUDING ALL EMPLOYEES IN THE
MATERIALS ENGINEERING LABORATORY, FIREFIGHTERS, GUARDS, SUPERVISORS,
PROFESSIONALS, ILLUSTRATORS, ILLUSTRATORS (TECHNICAL EQUIPMENT),
MECHANICAL ENGINEERING TECHNICIANS, (DRAFTING) ENGINEERING DRAFTSMEN,
(MECHANICAL) ENGINEERING DRAFTSMEN, WAGE GRADE EMPLOYEES OR OTHER THAN
THOSE OF A PURELY CLERICAL NATURE AND GUARDS.
INTERVENOR, LOCAL 1437, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
HEREIN CALLED NFFE, CONTENDS THAT THE UNIT SOUGHT BY THE AFGE IS
APPROPRIATE. THE ACTIVITY, ON THE OTHER HAND, CONTENDS THAT THE AFGE'S
CLAIMED UNIT IS NOT APPROPRIATE BECAUSE IT IS BASED, PRIMARILY, ON THE
EXTENT TO WHICH EMPLOYEES HAVE BEEN ORGANIZED AND, IN ADDITION, SUCH A
UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS. IN THE ACTIVITY'S VIEW, THE
ONLY APPROPRIATE UNIT IS ONE WHICH WOULD BE COMPRISED OF SIMILAR JOB
CLASSIFICATIONS ESTABLISHED ON AN ACTIVITY-WIDE BASIS.
IN CASE NO. 32-1702, THE AFGE SEEKS AN ELECTION IN A UNIT OF:
ALL CLASSIFIED ACT EMPLOYEES OF THE COMPTROLLER AND PROGRAMS OFFICE
AT THE PICATINNY ARSENAL, DOVER, NEW JERSEY, INCLUDING PROFESSIONALS,
EXCLUDING ALL SUPERVISORY AND MANAGERIAL EMPLOYEES, ALL EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY AND GUARDS.
IN CASE NO. 32-1794, THE AFGE SEEKS AN ELECTION IN A UNIT OF:
ALL CLASSIFICATION ACT EMPLOYEES OF THE INDUSTRIAL SERVICES
DIRECTORATE, EXCLUDING, FIREFIGHTERS, GUARDS, SUPERVISORS,
PROFESSIONALS, MECHANICAL ENGINEERING TECHNICIANS (DRAFTING),
ENGINEERING DRAFTSMEN (MECHANICAL), ENGINEERING DRAFTSMEN, WAGE GRADE
EMPLOYEES, PERSONNEL EMPLOYEES OTHER THAN THOSE OF A PURELY CLERICAL
NATURE.
IN CASE NO. 32-1734, THE AFGE SEEKS AN ELECTION IN A UNIT OF:
ALL CLASSIFICATION ACT EMPLOYEES OF THE INSTALLATION SUPPORT OFFICE,
PICATINNY ARSENAL, DOVER, NEW JERSEY. EXCLUDING FIREFIGHTERS, GUARDS,
SUPERVISORS, PROFESSIONALS, ILLUSTRATORS, ENGINEERING DRAFTSMEN
(MECHANICAL), ENGINEERING DRAFTSMEN, WAGE GRADE EMPLOYEES, PERSONNEL
EMPLOYEES OTHER THAN THOSE OF A PURELY CLERICAL NATURE.
IN CASE NO. 32-1798, THE AFGE SEEKS AN ELECTION IN A UNIT OF:
ALL CLASSIFICATION ACT EMPLOYEES OF THE QUALITY ASSURANCE
DIRECTORATE, PICATINNY ARSENAL, DOVER, NEW JERSEY. EXCLUDING
FIREFIGHTERS, GUARDS, SUPERVISORS, PROFESSIONALS, ILLUSTRATORS, (TECH.
EQUIPMENT) ILLUSTRATORS, MECHANICAL ENG. TECH., (DRAFTING) ENGINEERING
DRAFTSMEN, (MECHANICAL ENG.) DRAFTSMEN, WAGE GRADE EMPLOYEES, PERSONNEL
EMPLOYEES OTHER THAN THOSE OF A PURELY CLERICAL NATURE.
THE ACTIVITY CONTENDS THAT THE LATTER FOUR CLAIMED UNITS SOUGHT BY
THE AFGE ARE INAPPROPRIATE BECAUSE THEY WOULD NOT PROMOTE EFFECTIVE
DEALINGS, ARE BASED ON THE EXTENT TO WHICH EMPLOYEES HAVE BEEN ORGANIZED
AND THAT, MOREOVER, THE EMPLOYEES IN EACH OF THE ABOVE CLAIMED UNITS DO
NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST.
THE ACTIVITY IS ENGAGED IN THE RESEARCH, DEVELOPMENT AND MANUFACTURE
OF MUNITIONS. IT IS DIVIDED INTO 17 MAJOR OFFICES AND DIRECTORATES.
ONE OF THESE DIRECTORATES, THE FELTMAN RESEARCH LABORATORY, WHICH
CONTAINS THE EMPLOYEES SOUGHT IN CASE NO. 32-1829, IS ENGAGED IN THE
RESEARCH AND EXPLORATORY DEVELOPMENT OF EXPLOSIVES AND PROPELLANTS FOR
THE USE IN THE MANUFACTURE OF MUNITIONS. THE FELTMAN RESEARCH
LABORATORY IS SUBDIVIDED INTO THE FOLLOWING MAJOR DIVISIONS: (1) THE
PLANS AND PROGRAMS OFFICE; (2) THE EXPLOSIVES LABORATORY; (3) THE
PROPELLANTS LABORATORY; (4) THE PYROTECHNICS LABORATORY; (5) THE
MATERIALS ENGINEERING LABORATORY /1/ ; (6) THE ENGINEERING SCIENCES
LABORATORY; AND (7) THE MUNITIONS PACKAGING LABORATORY. EMPLOYEES IN
THIS CLAIMED UNIT WORK IN 25 DIFFERENT LOCATIONS SITUATED THROUGHOUT THE
ACTIVITY. IN AT LEAST TWO INSTANCES, SOME OF THE EMPLOYEES WORK IN
BUILDINGS WHICH HOUSE EMPLOYEES FROM OTHER OF THE ACTIVITY'S
DIRECTORATES WHO ARE NOT COVERED BY THE SUBJECT PETITIONS.
THERE ARE 125 EMPLOYEES IN THE CLAIMED UNIT IN CASE NO. 32-1829
WORKING IN APPROXIMATELY 20 DIFFERENT JOB CLASSIFICATIONS. OF THE 125
EMPLOYEES, THERE ARE APPROXIMATELY 48 EMPLOYEES PERFORMING CLERICAL AND
STENOGRAPHIC JOB FUNCTIONS, 26 EMPLOYEES PERFORMING ADMINISTRATIVE JOB
FUNCTIONS AND 51 EMPLOYEES WHO PROVIDE TECHNICAL ASSISTANCE TO
PROFESSIONAL EMPLOYEES. /2/ EMPLOYEES PROVIDING SUCH TECHNICAL
ASSISTANCE INCLUDE MECHANICAL ENGINEERING TECHNICIANS, PHYSICAL SCIENCE
TECHNICIANS AND ELECTRONIC TECHNICIANS. THE RECORD REVEALS THAT THE
ACTIVITY EMPLOYS INDIVIDUALS WHO POSSESS SIMILAR SKILLS AND PERFORM
SIMILAR OR RELATED JOB FUNCTIONS THROUGHOUT THE ACTIVITY AS THOSE
POSSESSED AND PERFORMED BY EMPLOYEES IN THE CLAIMED UNIT WORKING IN THE
FELTMAN RESEARCH LABORATORY. THUS, FOR EXAMPLE, THE ACTIVITY EMPLOYS
PHYSICAL SCIENCE TECHNICIANS, ELECTRONIC TECHNICIANS AND CLERICAL
EMPLOYEES IN SEVERAL OF ITS OTHER DIRECTORATES NOT COVERED BY THE
PETITIONS IN THE SUBJECT CASE.
THE COMPTROLLER AND PROGRAM OFFICE, WHICH CONTAINS ALL OF THE
NONSUPERVISORY PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE UNIT
SOUGHT BY THE AFGE IN CASE NO. 32-1702, IS DIVIDED INTO 5 MAJOR
DIVISIONS. SEVERAL OF THESE DIVISIONS ARE DIVIDED INTO BRANCHES WHICH,
IN SEVERAL INSTANCES, ARE SUBDIVIDED INTO SECTIONS. THE MISSION OF THE
COMPTROLLER AND PROGRAMS OFFICE ENCOMPASSES THE NORMAL FUNCTIONS OF
COMPTROLLERSHIP INCLUDING FINANCES AND ACCOUNTING, BUDGETING,
PROGRAMING, REVIEW AND ANALYSIS OF PROGRAMS UNDERTAKEN BY THE ACTIVITY.
CURRENTLY THERE ARE APPROXIMATELY 143 EMPLOYEES IN THE CLAIMED UNIT. OF
THAT NUMBER, THERE ARE 132 NONPROFESSIONAL EMPLOYEES PERFORMING WORK IN
APPROXIMATELY 15 DIFFERENT JOB CLASSIFICATIONS SUCH AS ACCOUNTING
TECHNICIANS, PAYROLL CLERKS, PROGRAM ANALYSTS, MANAGEMENT ANALYSTS, DATA
CONTROL CLERKS, VOUCHER EXAMINERS, STATISTICAL ANALYSTS, SYSTEM
SPECIALISTS, SECRETARIES, CLERK TYPISTS AND STENOGRAPHERS. THERE ARE
ALSO APPROXIMATELY 11 PROFESSIONAL EMPLOYEES IN THIS PETITIONED FOR
UNIT, THE MAJORITY OF WHOM ARE ACCOUNTANTS.
THE RECORD REVEALS THAT MANY OF THE JOB FUNCTIONS PERFORMED BY
EMPLOYEES IN THIS PROPOSED UNIT ARE PERFORMED BY EMPLOYEES IN OTHER
DIRECTORATES AND OFFICES THROUGHOUT THE ACTIVITY. FOR EXAMPLE, THERE
ARE MORE PROGRAM ANALYSTS EMPLOYED OUTSIDE THE CLAIMED UNIT, WORKING IN
OTHER DIRECTORATES AND OFFICES, THAN THERE ARE EMPLOYED BY THE
COMPTROLLER AND PROGRAMS OFFICE. THE ACTIVITY ALSO EMPLOYS VOUCHER
EXAMINERS, ACCOUNTS MAINTENANCE CLERKS, MANAGEMENT ANALYSTS, CLERK
TYPISTS, SECRETARIES, STENOGRAPHERS AND STATISTICAL ASSISTANTS IN OTHER
OF ITS DIRECTORATES NOT COVERED BY THE PETITION. THE ONLY JOB FUNCTIONS
WHICH ARE UNIQUE TO THE COMPTROLLER AND PROGRAMS OFFICE ARE THAT OF
ACCOUNTING TECHNICIANS AND PAYROLL CLERKS. FURTHER, THE RECORD REVEALS,
THAT THERE ARE SOME 241 EMPLOYEES THROUGHOUT THE ACTIVITY WHO HAVE
REGISTERED IN THE CAREER PROGRAM WHICH HAS BEEN ESTABLISHED ON AN
AGENCY-WIDE BASIS FOR COMPTROLLER AND RELATED JOB FUNCTIONS. OF THAT
NUMBER, THERE ARE ONLY 57 EMPLOYEES WHO WORK IN THE COMPTROLLER AND
PROGRAMS OFFICE. THE REMAINING 184 REGISTERED EMPLOYEES OF THE ACTIVITY
ARE EMPLOYED IN OTHER DIRECTORATES OR OFFICES THROUGHOUT THE ACTIVITY.
THE INDUSTRIAL SERVICES DIRECTORATE, WHICH CONTAINS ALL THE EMPLOYEES
IN THE UNIT CLAIMED BY THE AFGE IN CASE NO. 32-1794, IS DIVIDED INTO 5
MAJOR OPERATIONAL DIVISIONS. THESE 5 DIVISIONS ARE SUBDIVIDED INTO 31
DIFFERENT SECTIONS. THE PRIMARY MISSION OF THE INDUSTRIAL SERVICES
DIRECTORATE IS TO DETERMINE THE FEASIBILITY OF MANUFACTURING ORDNANCE
PRODUCTS DEVELOPED BY THE RESEARCH AND DEVELOPMENT DIRECTORATES WITHIN
THE ACTIVITY SUCH AS THE NUCLEAR ENGINEERING DIRECTORATE, THE AMMUNITION
ENGINEERING DIRECTORATE AND FELTMAN RESEARCH LABORATORY.
IN PERFORMING ITS MISSION, THE INDUSTRIAL SERVICES DIRECTORATE
RECEIVES DRAWINGS AND SPECIFICATIONS OF ITEMS WHICH HAVE BEEN DEVELOPED
BY THE ABOVE-MENTIONED RESEARCH AND DEVELOPMENT DIRECTORATES. THE
INDUSTRIAL SERVICES DIRECTORATE THEN MAKES LIMITED PRODUCTION RUNS IN AN
ATTEMPT TO MANUFACTURE THE PARTICULAR ITEM IN THE MANNER IN WHICH IT WAS
DESIGNED AS WELL AS ATTEMPTING TO MEET THE SPECIFICATIONS ESTABLISHED
FOR THE ITEM AS SET FORTH BY THE DESIGNING DIRECTORATE. ONCE THE
FEASIBILITY OF MANUFACTURING AN ORDNANCE ITEM HAS BEEN ESTABLISHED BY
THE INDUSTRIAL SERVICES DIRECTORATE, THE ITEM IS THEN SENT TO
ORGANIZATIONS OUTSIDE THE ACTIVITY FOR QUANTITY PRODUCTION. IN ORDER TO
KEEP ITS WORK FORCE BUSY, THE INDUSTRIAL SERVICES DIRECTORATE PERFORMS
LIMITED MANUFACTURING OF ORDNANCE ITEMS.
THE RECORD DISCLOSES THAT THERE ARE APPROXIMATELY 1500 EMPLOYEES
EMPLOYED BY THE INDUSTRIAL SERVICES DIRECTORATE. OF THAT NUMBER, THERE
ARE APPROXIMATELY 286 NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES COVERED
BY THE PETITION WORKING IN 4 MAJOR JOB CLASSIFICATION CATEGORIES. THESE
INCLUDE 88 TECHNICIANS WORKING IN VARIOUS SPECIALISTS, 34 CLERK TYPISTS,
104 PRODUCTION COMPTROLLERS AND 60 GENERAL ADMINISTRATIVE EMPLOYEES.
THE AVERAGE GRADE ASSIGNED EMPLOYEES IN THE CLAIMED UNIT IN GRADE GS-9.
THE EVIDENCE REVEALS THAT THERE ARE NO JOB FUNCTIONS PERFORMED BY THE
EMPLOYEES IN THE CLAIMED UNIT WHICH ARE UNIQUE SOLELY TO THE INDUSTRIAL
SERVICES DIRECTORATE AT THE ACTIVITY. FOR EXAMPLE, THE PRODUCTION
COMPTROLLERS EMPLOYED BY THE INDUSTRIAL SERVICES DIRECTORATE PLAN THE
MANUFACTURING WORK RECEIVED FROM THE RESEARCH AND DEVELOPMENT
DIRECTORATES INCLUDING THE SCHEDULING OF THE JOB, REQUISITIONING
MATERIALS FOR THE MANUFACTURING PROCESS, AND THE ESTABLISHMENT OF A
BUDGET FOR THE PROJECT. IN THIS REGARD, THE RECORD REVEALS THAT THERE
ARE OTHER DIRECTORATES WITHIN THE ACTIVITY WHICH EMPLOY INDIVIDUALS WHO
POSSESS SIMILAR SKILLS AND PERFORM SIMILAR JOB FUNCTIONS AS THOSE
PERFORMED BY THE PRODUCTION COMPTROLLERS WORKING IN THE UNIT SOUGHT BY
THE AFGE. /3/
THE RECORD REVEALED THAT FOR THE CALENDAR YEAR OF 1970, 33 EMPLOYEES
TRANSFERRED FROM THE INDUSTRIAL SERVICES DIRECTORATE TO OTHER
DIRECTORATES AND OFFICES WITHIN THE ACTIVITY. ADDITIONALLY, 5 EMPLOYEES
TRANSFERRED INTO THE INDUSTRIAL SERVICES DIRECTORATE FROM OTHER
DIRECTORATES AND OFFICES OF THE ACTIVITY.
THE EMPLOYEES IN THIS PROPOSED UNIT WORK IN THREE DIFFERENT BUILDINGS
AND THEY ARE THE EXCLUSIVE OCCUPANTS IN ONE OF THESE BUILDINGS. IN A
SECOND BUILDING, THE EMPLOYEES IN THE CLAIMED UNIT WORK ON THE FIRST
FLOOR AND APPROXIMATELY 125 EMPLOYEES OF THE ACTIVITY'S NUCLEAR
ENGINEERING DIRECTORATE WORK ON THE SECOND FLOOR; AND IN THE THIRD
BUILDING THERE ARE APPROXIMATELY 10 EMPLOYEES IN THE CLAIMED UNIT
WORKING WITH SEVERAL HUNDRED EMPLOYEES OF THE AMMUNITION ENGINEERING
DIRECTORATE. /4/
THE INSTALLATION SUPPORT OFFICE, WHICH CONTAINS ALL OF THE
NONSUPERVISORY NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES IN THE UNIT
CLAIMED BY THE AFGE IN CASE NO. 32-1734, IS DIVIDED INTO 5 MAJOR
DIVISIONS. EACH OF THESE 5 DIVISIONS PERFORM A DISTINCT MISSION.
THE MISSION OF THE PLANT ENGINEERING DIVISION IS TO ASSIST OTHER
DIRECTORATES AND OFFICES WITHIN THE ACTIVITY IN THE BUILDING OF THE
ACTIVITY'S PHYSICAL PLANT, RENOVATION OF EXISTING FACILITIES,
INSTALLATION AND REPAIRING OF EQUIPMENT, OPERATION OF THE ACTIVITY'S
POWER HOUSE, WHICH GENERATES STEAM AND ELECTRICITY, AND THE OPERATION OF
THE ACTIVITY'S FIRE DEPARTMENT. ADDITIONALLY, THIS DIVISION INSPECTS
THE CONSTRUCTION OF NEW FACILITIES WITHIN THE ACTIVITY TO DETERMINE THE
ADEQUACY AND COMPLETENESS OF THE WORK PERFORMED.
THE ARSENAL FACILITIES EQUIPMENT DIVISION IS ENTRUSTED WITH THE
PREPARATION OF THE MASTER PLAN FOR THE DEVELOPMENT OF THE ACTIVITY. THE
MASTER PLAN ENCOMPASSES SUCH DETAILS AS WHAT EQUIPMENT AND NEW
FACILITIES WILL BE REQUIRED TO MAINTAIN THE PRESENT STATE OF THE
ACTIVITY, AND WHAT WILL BE NEEDED FOR THE FUTURE GROWTH OF THE ACTIVITY.
THE TRANSPORTATION DIVISION IS ENTRUSTED WITH THE DELIVERY OF GOODS
AND EQUIPMENT THROUGHOUT THE ACTIVITY. ALSO, THIS DIVISION PROVIDES
TRANSPORTATION FOR OFFICIAL VISITORS AND EMPLOYEES, WHO ARE ON OFFICIAL
BUSINESS, TO AND FROM THE LOCAL AIRPORT.
THE MISSION OF THE SUPPLY DIVISION IS TO STOCK ALL TYPES OF SUPPLIES,
EQUIPMENT AND MATERIALS FOR USE THROUGHOUT THE ACTIVITY AND THE PROPERTY
DISPOSAL DIVISION IS ENTRUSTED WITH THE RESPONSIBLITY OF DISPOSING OF
EXCESS MATERIALS AND PROPERTY OF THE ACTIVITY IN ACCORDANCE WITH ARMY
REGULATIONS.
IN ADDITION TO THE MISSIONS PERFORMED BY THE ABOVE 5 DIVISIONS, THE
RECORD REVEALS THAT THE INSTALLATION SUPPORT OFFICE PERFORMS OTHER
FUNCTIONS INCLUDING THE PROVIDING OF HOUSING FOR MILITARY PERSONNEL;
THE ASSISTING OF CIVILIAN EMPLOYEES IN OBTAINING HOUSING IN THE LOCALITY
OF THE ACTIVITY; AND THE ADVISING OF THE CHIEF OF THE INSTALLATION
SUPPORT OFFICE ON ALL MATTERS PERTAINING TO THE ACTIVITY'S EQUIPMENT
PROGRAM.
OF THE APPROXIMATELY 1005 WAGE BOARD AND GENERAL SCHEDULE EMPLOYEES
EMPLOYED BY THE INSTALLATION SUPPORT OFFICE, THERE ARE 198
NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES IN THE UNIT CLAIMED BY THE
AFGE, WORKING IN 29 DIFFERENT JOB CLASSIFICATIONS. THESE INCLUDE 71
EMPLOYEES WORKING IN THE JOB SERIES WHICH ENCOMPASSES OFFICE CLERICAL
AND ADMINISTRATIVE JOB FUNCTIONS; 29 EMPLOYEES IN THE JOB SERIES
PERFORMING ENGINEERING RELATED FUNCTIONS SUCH AS ENGINEERING
TECHNICIANS, SURVEY TECHNICIANS AND CONSTRUCTION ENGINEERING
TECHNICIANS; 73 EMPLOYEES IN THE JOB SERIES ENGAGED IN SUPPLY AND
ALLIED JOB FUNCTIONS; AND 14 EMPLOYEES IN THE JOB SERIES ENGAGED IN THE
PERFORMANCE OF TRANSPORTATION AND ALLIED JOB FUNCTIONS SUCH AS FREIGHT
RATING CLERKS, TRAVEL CLERKS AND VEHICLE DISPATCHERS. ADDITIONALLY,
THERE ARE 9 EMPLOYEES WORKING IN THE JOB SERIES PERFORMING JOBS SUCH AS
EQUIPMENT SPECIALIST AND CONSTRUCTION MAINTENANCE TECHNICIANS. THE
GRADE STRUCTURE FOR THE EMPLOYEES IN THE CLAIMED UNIT RANGED FROM GS-2
THROUGH GS-12.
THE RECORD REVEALS THAT CERTAIN EMPLOYEES WITHIN THE CLAIMED UNIT
PERFORM SIMILAR JOB FUNCTIONS AS THOSE PERFORMED BY EMPLOYEES IN OTHER
DIRECTORATES IN SUCH JOBS AS CLERICAL STENOGRAPHIC, BUDGETING ANALYSIS
AND WORK MEASUREMENT DATA. THE RECORD ALSO REVEALS THAT THE
CONSTRUCTION ENGINEERING TECHNICIANS IN THE PETITIONED FOR UNIT WHO ARE
ENGAGED IN THE ESTIMATING OF THE COSTS OF REPAIRING OR CONSTRUCTION
FACILITIES THROUGHOUT THE ACTIVITY PERFORM WORK SIMILAR TO THAT
PERFORMED BY ESTIMATORS IN OTHER DIRECTORATES OF THE ACTIVITY.
WITH RESPECT TO THE TRANSFERRING OF EMPLOYEES, THE RECORD REVEALS
THAT FOR CALENDAR YEAR 1970, 11 EMPLOYEES TRANSFERRED INTO THE
INSTALLATION SUPPORT OFFICE FROM OTHER DIRECTORATES AND OFFICES OF THE
ACTIVITY. ADDITIONALLY, 12 EMPLOYEES TRANSFERRED OUT OF THE
INSTALLATION SUPPORT OFFICE TO OTHER DIRECTORATES AND OFFICES OF THE
ACTIVITY.
THERE ARE APPROXIMATELY 280 NONPROFESSIONAL GENERAL SCHEDULE
EMPLOYEES WORKING IN THE QUALITY ASSURANCE DIRECTORATE IN THE UNIT
CLAIMED BY THE AFGE IN CASE NO. 32-1798. OF THE 280, THERE ARE 87
EMPLOYEES IN THE JOB SERIES WHICH ENCOMPASSES OFFICE CLERICAL
ADMINISTRATIVE JOB FUNCTIONS; 38 EMPLOYEES WHO ARE CLASSIFIED
ENGINEERING TECHNICIANS; 107 EMPLOYEES WORKING AS AMMUNITION
INSPECTORS; 29 EMPLOYEES WORKING AS CALIBRATION INSPECTORS; 6
EMPLOYEES WORKING AS QUALITY CONTROL SPECIALISTS, AND 14 EMPLOYEES
WORKING AT INDUSTRIAL SPECIALISTS. /5/
THE AMMUNITION AND CALIBRATION INSPECTORS EMPLOYED BY THE QUALITY
ASSURANCE DIRECTORATE ARE QUALIFIED IN THE USE OF MECHANICAL AND
ELECTRONIC INSTRUMENTS WHICH ARE UTILIZED IN THE INSPECTING AND TESTING
OF ORDNANCE PRODUCTS. AMMUNITION INSPECTORS MONITOR THE QUALITY
ASSURANCE OPERATIONS ON BEHALF OF THE DEFENSE CONTROL ADMINISTRATION
SERVICE TO INSURE THAT ORDNANCE PRODUCTS ARE BEING PRODUCED IN
CONFORMITY WITH THE STANDARDS OUTLINED IN THE PROCUREMENT CONTRACT.
ANOTHER GROUP OF AMMUNITION INSPECTORS TRAVEL TO CONTRACTORS' PLANTS TO
TEST ARTICLES WHICH ARE PRODUCED AT THE START OF A PRODUCTION RUN AND
STILL ANOTHER GROUP HANDLES QUALITY ASSURANCE PROBLEMS RAISED BY EITHER
THE DEFENSE CONTRACT ADMINISTRATION SERVICE OR THE OUTSIDE CONTRACTORS
IN RELATION TO THE PRODUCTION OF ITEMS. APPROXIMATELY 30 PERCENT OF THE
AMMUNITION INSPECTOR'S TIME IS SPENT IN TRAVEL STATUS.
THE RECORD REVEALS THAT THERE ARE OTHER DIRECTORATES AND OFFICE
THROUGHOUT THE ACTIVITY WHICH EMPLOY INDIVIDUALS WHO POSSESS SIMILAR
SKILLS AND PERFORM SIMILAR JOB FUNCTIONS AS THOSE POSSESSED AND
PERFORMED BY EMPLOYEES WORKING IN THE QUALITY ASSURANCE DIRECTORATE.
/6/
THE RECORD REVEALS THAT FOR THE FIRST 11 MONTHS OF CALENDAR YEAR
1970, 14 EMPLOYEES TRANSFERRED FROM THE QUALITY ASSURANCE DIRECTORATE TO
OTHER OFFICES AND DIRECTORATES OF THE ACTIVITY. ADDITIONALLY, 4
EMPLOYEES TRANSFERRED FROM OTHER DIRECTORATES AND OFFICES OF THE
ACTIVITY INTO QUALITY ASSURANCE DIRECTORATE. THE EMPLOYEES IN THE UNIT
CLAIMED BY THE AFGE IN THE QUALITY ASSURANCE DIRECTORATE WORK IN 11
DIFFERENT LOCATIONS THROUGHOUT THE ACTIVITY. IN 7 OF THE LOCATIONS
EMPLOYEES IN THE CLAIMED UNIT ARE HOUSED WITH EMPLOYEES FROM OTHER
DIRECTORATES SUCH AS THE AMMUNITION ENGINEERING DIRECTORATE, THE NUCLEAR
ENGINEERING DIRECTORATE AND THE INDUSTRIAL SERVICES DIRECTORATE.
OVERALL SUPERVISION OF EACH OF THE DIRECTORATES AND OFFICES INVOLVED
IN THE SUBJECT CASES IS ENTRUSTED TO A DIRECTOR OF CHIEF, WHO REPORTS
DIRECTLY TO THE ACTIVITY'S COMMANDING OFFICER. THE RECORD REVEALS THAT
A DIRECTOR OR CHIEF POSSESSES THE AUTHORITY TO IMPLEMENT AND MODIFY
POLICIES ESTABLISHED BY THE ACTIVITY'S CIVILIAN PERSONNEL OFFICE
RELATIVE TO THE PARTICULAR NEEDS OF HIS DIRECTORATE OR OFFICE.
IMPLEMENTATION AND MODIFICATION OF POLICY GUIDELINES IS ACCOMPLISHED BY
THE DIRECTORS AND CHIEFS THROUGH DOCUMENTS KNOWN AS "STANDARD OPERATING
PROCEDURES." THE RECORD REVEALS THAT "STANDARD OPERATING PROCEDURES"
COVER A WIDE RANGE OF SUBJECTS SUCH AS HOLIDAY LEAVE, EMPLOYEE CONDUCT
AT CLOSING TIME, OVERTIME AND COMPENSATORY TIME REQUESTS, USE OF HOT
PLATES, USE OF RADIO DURING WORKING HOURS, SICK LEAVE USAGE, ETC.
THERE IS ONE CENTRAL PERSONNEL OFFICE LOCATED WITHIN THE ACTIVITY.
SUCH MATTERS ARE REDUCTIONS IN FORCE, REASSIGNMENT OF EMPLOYEES, HIRING,
PROMOTIONS AND THE ULTIMATE RESOLUTION OF GRIEVANCES ARE HANDLED BY THE
CIVILIAN PERSONNEL OFFICE. THE ACTIVITY HAS ALSO ESTABLISHED A CENTRAL
PAYROLL OFFICE WHICH IS ADMINISTERED BY THE ACTIVITY'S COMPTROLLER AND
PROGRAMS OFFICE.
THE ACTIVITY HAS ESTABLISHED AN AREA OF CONSIDERATION FOR PROMOTIONAL
OPPORTUNITIES FOR GRADES GS-13 AND ABOVE ON AN AGENCYWIDE BASIS. THE
AREA OF CONSIDERATION FOR GRADES GS-5 THROUGH GS-12 IS ON AN
ACTIVITY-WIDE BASIS. FOR GRADES GS-4 AND BELOW, THE AREA OF
CONSIDERATION APPEARS TO BE CONFINED TO A DIRECTORATE-WIDE BASIS.
BASED ON THE FOREGOING, I FIND THAT THE UNITS CLAIMED BY THE AFGE DO
NOT CONSTITUTE APPROPRIATE UNITS WITHIN THE MEANING OF SECTION 10 OF
EXECUTIVE ORDER 11491. AS NOTED ABOVE, THE RECORD DEMONSTRATES THAT
MANY OF THE ACTIVITY'S DIRECTORATES, NOT COVERED BY THE SUBJECT
PETITIONS, EMPLOY INDIVIDUALS WHO POSSESS SIMILAR SKILLS AND PERFORM
SIMILAR OR CLOSELY RELATED JOB FUNCTIONS AS THOSE PERFORMED BY THE
EMPLOYEES IN THE UNITS CLAIMED BY THE AFGE. ALSO, THE RECORD REVEALS
THAT THE AREA OF CONSIDERATION FOR PROMOTION FOR A MAJORITY OF THE
EMPLOYEES IN THE PETITIONED FOR UNITS IS ON AN ACTIVITY-WIDE BASIS AND
IS NOT CONFINED SOLELY TO A DIRECTORATE-WIDE BASIS. FURTHER, THE
EVIDENCE DEMONSTRATES THAT DURING CALENDAR YEAR 1970 THERE WERE SEVERAL
INSTANCES OF TRANSFERS BETWEEN EMPLOYEES IN THE CLAIMED UNITS AND OTHER
DIRECTORATES AND OFFICES OF THE ACTIVITY. IN THESE CIRCUMSTANCES, AND
NOTING THAT THE ACTIVITY HAS ESTABLISHED CENTRALIZED PERSONNEL POLICIES
AND PRACTICES, I FIND THAT A BASIS DOES NOT EXIST FOR THE ESTABLISHMENT
OF UNITS AS SOUGHT BY THE AFGE, ON A DIRECTORATE-WIDE BASIS. SUCH
UNITS, IN MY VIEW, WOULD CREATE RESIDUAL GROUPS OF UNREPRESENTED
EMPLOYEES IN OTHER OF THE ACTIVITY'S DIRECTORATES WHO PERFORM JOBS WHICH
ARE SIMILAR TO THOSE PERFORMED BY MANY OF THE EMPLOYEES IN THE
PETITIONED FOR UNITS. I CONCLUDE, THEREFORE, THAT THE UNITS SOUGHT BY
THE AFGE DO NOT CONTAIN EMPLOYEES WHO HAVE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST. ADDITIONALLY, THE ESTABLISHMENT OF SUCH
FRAGMENTED UNITS WOULD SERIOUSLY HAMPER EFFECTIVE DEALINGS AND WOULD NOT
CONTRIBUTE TO THE PROMOTION OF EFFICIENT AGENCY OPERATIONS.
ACCORDINGLY, I SHALL DISMISS THE PETITIONS HEREIN.
IT IS HEREBY ORDERED THAT THE PETITIONS IN CASE NOS. 32-1829(RO),
32-1702(RO), 32-1794(RO), 32-1798(RO) BE, AND THEY HEREBY ARE DISMISSED.
DATED, WASHINGTON, D.C.
MAY 14, 1971
/1/ AS NOTED ABOVE IN CASE NO. 32-1829 THE AFGE SEEKS A UNIT OF ALL
NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES WORKING IN THE FELTMAN
RESEARCH LABORATORY WITH THE EXCEPTION, AMONG OTHERS, OF THOSE WORKING
IN THE MATERIALS ENGINEERING LABORATORY. IT WHOULD BE NOTED THAT THE
NFFE FILED A PETITION FOR THE EMPLOYEES IN THE MATERIAL ENGINEERING
LABORATORY IN CASE NO.32-1504(RO). IN A/SLMR NO. 40 I DIRECTED THAT THE
PETITION IN THAT CASE BE DISMISSED.
/2/ APPARENTLY ALL PARTIES AGREED TO ADOPT THE ACTIVITY'S
CLASSIFICATION OF EMPLOYEES IN THE SUBJECT CASES AS TO THEIR
PROFESSIONAL OR NONPROFESSIONAL STATUS. SINCE THE RECORD DOES NOT SET
FORTH SUFFICIENT FACTS IN THIS RESPECT, I WILL MAKE NO FINDINGS AS TO
WHICH EMPLOYEE CLASSIFICATION CONSTITUTE PROFESSIONAL EMPLOYEES.
/3/ ALTHOUGH THE NUMBER OF PRODUCTION COMPTROLLERS EMPLOYED BY OTHER
DIRECTORATES THROUGHOUT THE ACTIVITY WAS NOT SPECIFIED IN THE RECORD,
THE DIRECTOR OF THE INDUSTRIAL SERVICES DIRECTORATE TESTIFIED THAT "MUCH
OF THE PLANNING FORCE IN OTHER DIRECTORATES CONTAINS PEOPLE WHO HAVE
ORIGINALLY BEEN IN THE INDUSTRIAL SERVICES DIRECTORATE."
/4/ THE EMPLOYEES IN THE CLAIMED UNIT WHO WORK IN THE TWO BUILDINGS
WITH EMPLOYEES OF OTHER DIRECTORATES OF THE ACTIVITY ARE, HOWEVER,
SUPERVISED SEPARATELY.
/5/ THE RECORD ALSO REVEALS THAT APPROXIMATELY 60 EMPLOYEES WORKING
IN THE QUALITY ASSURANCE DIRECTORATE ARE ENGAGED IN SPECIFICATION AND
DESIGN WORK. THE RECORD DOES NOT REVEAL THE FULL EXTENT OF THEIR
DUTIES.
/6/ THUS, FOR EXAMPLE, EACH OF THE DIRECTORATES INVOLVED IN THE
SUBJECT CASES EMPLOYS INDIVIDUALS IN THE JOB SERIES CLASSIFICATION WHICH
ENCOMPASSES CLERICAL AND ADMINISTRATIVE JOB SKILLS. FURTHER, THE
FELTMAN RESEARCH LABORATORY AND INDUSTRIAL SERVICES DIRECTORATE AND
INSTALLATION SUPPORT OFFICE EMPLOY INDIVIDUALS IN THE JOB SERIES WHICH
ENCOMPASSES INDIVIDUALS POSSESSING TECHNICIAN SKILLS.
1 A/SLMR 40; P. 216; CASE NO. 32-1504(RO); MAY 14, 1971.
DEPARTMENT OF THE ARMY,
PICATINNY ARSENAL,
DOVER, NEW JERSEY
A/SLMR NO. 40
THE SUBJECT CASE INVOLVING A REPRESENTATION PETION FILED BY LOCAL
1437, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, PRESENTED THE QUESTION
WHETHER A UNIT CONSISTING OF ALL NONSUPERVISORY GENERAL SCHEDULE
EMPLOYEES WORKING IN THE ACTIVITY'S MATERIALS ENGINEERING LABORATORY IS
APPROPRIATE.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
PETITIONED FOR UNIT WAS NOT APPROPRIATE. IN REACHING THIS
DETERMINATION, THE ASSISTANT SECRETARY RELIED ON THE FACT THAT THE
EMPLOYEES IN THE CLAIMED UNIT PERFORMED FUNCTIONS WHICH ARE SIMILAR TO
THOSE PERFORMED BY SIMILARLY SITUATED EMPLOYEES THROUGHOUT THE ACTIVITY;
THE ACTIVITY HAD ESTABLISHED AN AREA OF CONSIDERATION FOR PROMOTIONAL
OPPORTUNITIES FOR MOST OF THE EMPLOYEES IN THE PETITIONED FOR UNIT ON AN
ACTIVITY-WIDE BASIS; AND THAT THERE HAVE BEEN TRANSFERS BETWEEN
EMPLOYEES IN THE CLAIMED UNIT AND OTHER DIRECTORATES AND OFFICES OF THE
ACTIVITY. ALSO, HE VIEWED AS PARTICULARLY RELEVANT THE FACT THAT THE
ACTIVITY HAS ESTABLISHED HIGHLY CENTRALIZED PERSONNEL POLICIES AND
PRACTICES.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
EMPLOYEES IN THE REQUESTED UNIT DID NOT POSSESS A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST. MOREOVER, HE FOUND THAT SUCH A FRAGMENTED UNIT
WOULD NOT PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE PETITION BE
DISMISSED.
DEPARTMENT OF THE ARMY,
PICATINNY ARSENAL,
DOVER, NEW JERSEY
AND
LOCAL 1437, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 225
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM O'LOUGHLIN. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. PETITIONER, LOCAL 1437, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
HEREIN CALLED NFFE, SEEKS AN ELECTION IN THE FOLLOWING UNIT: /1/
ALL CLASSIFIED ACT EMPLOYEES EMPLOYED BY THE MATERIALS ENGINEERING
LABORATORY, PICATINNY ARSENAL, EXCLUDING WAGE BOARD EMPLOYEES, ALL
MANAGEMENT OFFICIALS, EMPLOYEES IN PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
INTERVENOR, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 225, HEREIN CALLED AFGE, QUESTIONED WHETHER THE NFFE'S CLAIMED
UNIT WAS APPROPRIATE; HOWEVER, IT DID NOT STATE WHAT IT CONSIDERED THE
APPROPRIATE UNIT TO BE. THE ACTIVITY, PRIOR TO THE HEARING, CONTENDED
THAT THE CLAIMED UNIT WAS INAPPROPRIATE BECAUSE IT WAS ESTABLISHED,
PRIMARILY, ON THE BASIS OF THE EXTENT TO WHICH EMPLOYEES HAD BEEN
ORGANIZED. DURING THE COURSE OF THE HEARING, HOWEVER, THE ACTIVITY
STATED IT HAD NO OBJECTION TO THE UNIT CLAIMED BY THE NFFE.
THE ACTIVITY IS ENGAGED IN THE RESEARCH AND DEVELOPMENT OF MUNITIONS,
AND IS SUBDIVIDED, FUNCTIONALLY, INTO 17 DIFFERENT OFFICES AND
DIRECTORATES. ONE OF THESE DIRECTORATES, THE FELTMAN RESEARCH
LABORATORY, IS DIVIDED INTO SEVERAL DIVISIONS AND LABORATORIES. THE
MATERIALS ENGINEERING LABORATORY, WHICH CONTAINS ALL OF THE PETITIONED
FOR EMPLOYEES, IS ONE OF THE MAJOR DIVISIONS OF THE FELTMAN RESEARCH
LABORATORY AND IS DIVIDED INTO THE FOLLOWING SIX BRANCHES; (1) THE
POLYMER RESEARCH BRANCH, (2) THE ADHESIVES AND COATING BRANCH; (3) THE
MATERIAL APPLICATION BRANCH; (4) THE METAL ENGINEERING BRANCH; (5) THE
PLASTICS AND ELASTICS BRANCH; AND (6) THE DEPARTMENT OF DEFENSE
PLASTICS TECHNICAL EVALUATION CENTER. ALL OF THESE BRANCHES OPERATE
LABORATORIES WITH THE EXCEPTION OF THE DEPARTMENT OF DEFENSE PLASTICS
EVALUATION CENTER, WHICH IS ENGAGED IN A PUBLICATION OF INFORMATION
FUNCTION.
THERE ARE 34 PROFESSIONAL AND 25 NONPROFESSIONAL EMPLOYEES IN THE
CLAIMED UNIT. /2/ APPROXIMATELY 48 OF THE EMPLOYEES WORK IN THE FIVE
OPERATING BRANCH LABORATORIES AND ARE ENGAGED IN THE RESEARCH AND
DEVELOPMENT OF STRUCTURAL MATERIALS AND THE TESTING OF METALS, POLYMER
FIBERS, PLASTICS AND RUBBER IN LABORATORY EXPERIMENTS TO ASCERTAIN THEIR
FEASIBILITY AS MATERIALS IN THE MANUFACTURE OF MUNITIONS. THE REMAINING
11 EMPLOYEES IN THE CLAIMED UNIT WORK IN THE DEPARTMENT OF DEFENSE
PLASTICS TECHNICAL EVALUATION CENTER. THESE LATTER EMPLOYEES GATHER,
EVALUATE AND DISSEMINATE INFORMATION CONCERNING DEVELOPMENTS IN PLASTIC
TECHNOLOGY FOR THE USE OF ARMED FORCES AND CONTRACTORS PERFORMING WORK
FOR THE DEPARTMENT OF DEFENSE. THE MAJORITY OF THE EMPLOYEES IN THE
CLAIMED UNIT ARE MATERIAL ENGINEERS, AND ARE CLASSIFIED BY THE ACTIVITY
AS PROFESSIONAL EMPLOYEES. OTHER PROFESSIONAL JOB CLASSIFICATIONS, AS
DEFINED BY THE ACTIVITY, INCLUDE MECHANICAL ENGINEERS, CHEMISTS,
PHYSICISTS AND PACKING TECHNOLOGISTS. NONPROFESSIONAL JOB
CLASSIFICATIONS IN THE CLAIMED UNIT INCLUDE GENERAL ADMINISTRATIVE
EMPLOYEES, SECRETARIES, PUBLICATION TECHNICIANS, EDITORIAL CLERKS,
LABORATORY TECHNICIANS, PHYSICAL SCIENTISTS, CLERK STENOS AND
ENGINEERING TECHNICIANS.
THE MAJORITY OF THE EMPLOYEES IN THE MATERIALS ENGINEERING LABORATORY
WORK IN A BUILDING OF WHICH THEY ARE THE EXCLUSIVE OCCUPANTS. SUCH
BUILDING IS LOCATED IN THE MAIN LABORATORY COMPLEX. THERE ARE, HOWEVER,
16 EMPLOYEES WHO WORK IN A BUILDING WHERE EMPLOYEES FROM THREE OF THE
ACTIVITY'S OTHER LABORATORIES WORK. IN ADDITION, EMPLOYEES IN THE
DEPARTMENT OF DEFENSE PLASTICS TECHNICAL EVALUATION CENTER WORK IN A
BUILDING, OF WHICH THEY ARE EXCLUSIVE OCCUPANTS, SOME TWO MILES FROM THE
MAIN LABORATORY COMPLEX.
THE RECORD REVEALS THAT OTHER LABORATORIES SITUATED NOT ONLY WITHIN
THE FELTMAN RESEARCH LABORATORY, BUT ALSO THROUGHOUT THE ACTIVITY,
UTILIZE EMPLOYEES WITH SKILLS POSSESSED BY MANY OF THE PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES IN THE CLAIMED UNIT. FOR EXAMPLE, THE
MUNITIONS- PACKAGING LABORATORY, ONE OF THE OTHER LABORATORIES WITHIN
THE FELTMAN RESEARCH LABORATORY, RECENTLY WAS SEPARATED AS A BRANCH OF
THE MATERIALS ENGINEERING LABORATORY AND WAS GRANTED FULL LABORATORY
STATUS AS A MAJOR LABORATORY WITHIN THE FELTMAN RESEARCH LABORATORY.
THE EVIDENCE REVEALS THAT MANY OF THE SKILLS POSSESSED BY THE EMPLOYEES
WORKING IN THE MUNITIONS PACKAGING LABORATORY ARE SIMILAR TO THOSE
POSSESSED BY EMPLOYEES IN THE MATERIALS ENGINEERING LABORATORY.
EACH OF THE SIX BRANCHES OF THE MATERIALS ENGINEERING LABORATORY IS
SUPERVISED BY A BRANCH CHIEF WHO POSSESSES THE AUTHORITY TO GRANT LEAVE
REQUESTS AS A BRANCH CHIEF WHO POSSESSES THE AUTHORITY TO GRANT LEAVE
REQUESTS AS WELL AS REQUESTS FOR TEMPORARY CHANGES IN EMPLOYEE WORK
SCHEDULES. BRANCH CHIEFS REPORT DIRECTLY TO THE CHIEF OF THE MATERIALS
ENGINEERING LABORATORY, WHO IS SUBORDINATE TO THE DIRECTOR OF THE
FELTMAN RESEARCH LABORATORY. THE DIRECTOR OF THE FELTMAN RESEARCH
LABORATORY REPORTS DIRECTLY TO THE ACTIVITY'S COMMANDING OFFICER.
THERE IS ONE CENTRAL PERSONNEL OFFICE LOCATED WITHIN THE ACTIVITY.
SUCH MATTERS AS REDUCTION IN FORCES, REASSIGNMENT OF EMPLOYEES, HIRING,
PROMOTIONS AND THE ULTIMATE RESOLUTION OF GRIEVANCES ARE HANDLED BY THIS
OFFICE. THE ACTIVITY HAS ESTABLISHED A CENTRAL PAYROLL OFFICE WHICH IS
ADMINISTERED BY THE ACTIVITY'S COMPTROLLER AND PROGRAMS OFFICE.
ALSO, THE ACTIVITY HAS ESTABLISHED AN AREA OF CONSIDERATION FOR
PROMOTIONAL OPPORTUNITIES FOR GRADES GS-13 AND ABOVE ON AN AGENCY-WIDE
BASIS. THE AREA OF CONSIDERATION FOR GRADES GS-4 AND BELOW, THE AREA OF
CONSIDERATION APPEARS TO BE CONFINED TO A DIRECTORATE-WIDE BASIS.
THE RECORD REVEALS THAT FOR THE FISCAL YEAR 1970 FIVE EMPLOYEES
TRANSFERRED INTO THE MATERIALS ENGINEERING LABORATORY FROM OTHER
DIRECTORATES AND OFFICES OF THE ACTIVITY. ADDITIONALLY, TWO EMPLOYEES
TRANSFERRED FROM THE MATERIALS ENGINEERING LABORATORY TO OTHER
DIRECTORATES AND OFFICES OF THE ACTIVITY. THE RECORD ALSO ESTABLISHES
THAT EMPLOYEES IN THE CLAIMED UNIT OCCASIONALLY WORK TOGETHER ON
PARTICULAR PROJECTS WITH EMPLOYEES OF OTHER LABORATORIES AND
DIRECTORATES OF THE ACTIVITY FOR PERIODS OF TIME WHICH GENERALLY DO NOT
EXCEED ONE DAY. /3/
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE NFFE DOES
NOT CONSTITUTE AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491. THE RECORD REVEALS THAT THERE
ARE SIMILARLY SITUATED EMPLOYEES PERFORMING SIMILAR JOB FUNCTIONS IN
OTHER LABORATORIES NOT ONLY WITHIN THE DIRECTORATE WHERE THE EMPLOYEES
IN THE CLAIMED UNIT WORK, BUT ALSO IN OTHER DIRECTORATES AND
LABORATORIES OF THE ACTIVITY WHICH ARE NOT INCLUDED IN THE CLAIMED UNIT.
ALSO, THE AREA OF CONSIDERATION FOR PROMOTIONAL OPPORTUNITIES FOR A
MAJORITY OF EMPLOYEES IN THE CLAIMED UNIT IS ON AN ACTIVITY-WIDE BASIS
AND IS NOT CONFINED SOLELY TO THE MATERIALS ENGINEERING LABORATORY.
MOREOVER, THE EVIDENCE DEMONSTRATES THAT THERE HAVE BEEN TRANSFERS
BETWEEN EMPLOYEES IN THE CLAIMED UNIT AND OTHER DIRECTORATES AND OFFICES
OF THE ACTIVITY. IN THESE CIRCUMSTANCES AND NOTING THE FACT THAT THE
ACTIVITY HAS ESTABLISHED CENTRALIZED PERSONNEL POLICIES AND PRACTICES, I
CONCLUDE THAT THE EMPLOYEES IN THE REQUESTED UNIT DO NOT POSSESS A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST. MOREOVER, IN MY VIEW, SUCH A
FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OF
AGENCY OPERATIONS. ACCORDINGLY, I SHALL DISMISS THE PETITION HEREIN.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 32-1504(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MAY 14, 1971
/1/ NFFE'S CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/2/ APPARENTLY, THE NFFE AND THE AFGE AGREED TO ADOPT THE ACTIVITY'S
CLASSIFICATION OF EMPLOYEES AS TO EITHER PROFESSIONAL OR NONPROFESSIONAL
STATUS. SINCE THE RECORD DOES NOT SET FORTH SUFFICIENT FACTS IN THIS
RESPECT, I WILL MAKE NO FINDINGS AS TO WHICH EMPLOYEE CLASSIFICATIONS
CONSTITUTE PROFESSIONAL EMPLOYEES.
/3/ FOR EXAMPLE, EMPLOYEES IN THE DEPARTMENT OF DEFENSE PLASTICS
TECHNICAL EVALUATION CENTER OCCASIONALLY COLLABORATE WITH EMPLOYEES FROM
OTHER LABORATORIES WITHIN THE FELTMAN RESEARCH LABORATORY IN THE
PREPARATION OF TECHNICAL REPORTS.
1 A/SLMR 39; P. 213; CASE NO. 70-1514 /1/ ; MAY 11, 1971.
GENERAL SERVICES ADMINISTRATION
PUBLIC BUILDING SERVICES,
SAN FRANCISCO, CALIFORNIA
A/SLMR NO. 39
THE SUBJECT CASE INVOLVING REPRESENTATION PETITIONS FILED BY TWO
LABOR ORGANIZATIONS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2275 (AFGE) AND NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-76 (NAGE), PRESENTED THE QUESTION AS TO WHETHER A
UNIT OF MAINTENANCE EMPLOYEES (GENERAL MECHANICS, ELECTRICIANS,
PAINTERS, CARPENTERS) AND CUSTODIAL EMPLOYEES IS APPROPRIATE, OR WHETHER
A SEPARATE UNIT OF CUSTODIAL EMPLOYEES IS APPROPRIATE.
UNDER ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
MAINTENANCE AND CUSTODIAL UNIT PETITIONED FOR BY AFGE WAS APPROPRIATE,
AND, ACCORDINGLY, HE DIRECTED THAT AN ELECTION BE HELD IN THIS UNIT. IN
REACHING THIS DETERMINATION HE NOTED THAT THE EMPLOYEES HAD THE SAME
GENERAL WORKING CONDITIONS, SHARED THE SAME SUPERVISION AT THE
DECISION-MAKING LEVEL AND THAT THEY OCCASIONALLY WORKED TOGETHER. HE
NOTED ALSO THAT THE ACTIVITY WAS OF THE VIEW THAT SUCH A UNIT WOULD
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE ASSISTANT SECRETARY ALSO FOUND THAT A SEPARATE UNIT OF CUSTODIAL
EMPLOYEES SOUGHT BY NAGE WAS NOT APPROPRIATE, AND THEREFORE HE ORDERED
THAT THE PETITION FILED BY THE NAGE BE DISMISSED. IN THIS REGARD, HE
NOTED THAT IN MANY INSTANCES CUSTODIAL EMPLOYEES HAD THE SAME TERMS AND
CONDITIONS OF EMPLOYMENT AS MAINTENANCE EMPLOYEES, THAT BOTH GROUPS OF
EMPLOYEES SHARED THE SAME SUPERVISION AT THE DECISION-MAKING LEVEL AND
THAT THEIR JOB FUNCTIONS WERE CLOSELY RELATED. HE NOTED FURTHER THAT
THE CUSTODIAL EMPLOYEES WILL HAVE AN OPPORTUNITY TO VOTE IN A MORE
COMPREHENSIVE UNIT ON WHETHER OR NOT THEY DESIRE UNION REPRESENTATION.
GENERAL SERVICES ADMINISTRATION,
PUBLIC BUILDING SERVICES,
SAN FRANCISCO, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2275
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-76
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER JOHN L. JORDAN.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED. /2/
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING PARTIES' BRIEFS, THE
ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE RECORD REVEALS THAT THE AFGE SEEKS AN ELECTION IN A UNIT OF
ALL CUSTODIAL AND MAINTENANCE WAGE BOARD EMPLOYEES OF THE PUBLIC
BUILDING SERVICE FIELD OFFICES IN THE SAN FRANCISCO BAY AREA,
CALIFORNIA, EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS, FEDERAL
EMPLOYEES ENGAGED IN PERSONNEL WORK, GUARDS AND PROFESSIONAL EMPLOYEES.
THE NAGE SEEKS AN ELECTION IN A UNIT OF ALL NONSUPERVISORY WAGE BOARD
CUSTODIAL LABORER EMPLOYEES OF THE PUBLIC BUILDING SERVICES FIELD
OFFICES IN THE SAN FRANCISCO BAY AREA, EXCLUDING MAINTENANCE WAGE BOARD
EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS AND EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK. THE ACTIVITY CONTENDS THAT THE APPROPRIATE UNIT
SHOULD CONSIST OF ALL WAGE BOARD CUSTODIAL AND MAINTENANCE EMPLOYEES, AS
PETITIONED FOR BY THE AFGE, AS SUCH EMPLOYEES SHARE A COMMUNITY OF
INTEREST AND THEIR INCLUSION IN A SINGLE UNIT WOULD PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF OPERATIONS.
THE FUNCTIONS OF THE ACTIVITY IS TO ASSURE THAT FEDERALLY-OWNED OR
FEDERALLY-LEASED BUILDINGS ARE KEPT CLEAN AND PROPERLY MAINTAINED.
THERE ARE 16 FIELD OFFICES IN THE 9TH REGION OF THE GENERAL SERVICES
ADMINISTRATION (GSA), PUBLIC BUILDING SERVICES. FOUR OF THE 16 FIELD
OFFICES ARE LOCATED IN THE SAN FRANCISCO BAY AREA AND ARE ADMINISTERED
BY THE CHIEF OF BUILDING MANAGEMENT DIVISION. THE BUILDING MANAGEMENT
DIVISION HAS RESPONSIBILITY FOR THE OPERATION AND MAINTENANCE OF
GOVERNMENT-OWNED OR GOVERNMENT-LEASED OFFICES AND GENERAL PURPOSE SPACE.
A BUILDING MANAGER IS IN CHARGE OF EACH FIELD OFFICE AND REPORTS TO THE
CHIEF OF BUILDING MANAGEMENT DIVISION FOR ADMINISTRATION AND PROGRAM
DIRECTION. A FIELD OFFICE MAY BE RESPONSIBLE FOR OVERSEEING ONE OR MORE
BUILDINGS. PERSONNEL ASSIGNED TO OPERATE AND MAINTAIN BUILDINGS OF A
PARTICULAR OFFICE COME UNDER THE DIRECTION OF THE BUILDING MANAGER. ALL
INSTRUCTIONS PERTAINING TO THE 4 FIELD OFFICES COVERED BY THE SUBJECT
PETITIONS EMANATE FROM THE CHIEF, BUILDING MANAGEMENT DIVISION. WITH
RESPECT TO INDIVIDUAL FIELD OFFICES, DIRECTIONS CONCERNING THAT OFFICE
OR ITS BUILDING GROUP COME FROM THE BUILDING MANAGER. IN A SPECIFIC
BUILDING GROUP, DIRECTIONS COME THROUGH THE ASSISTANT BUILDING MANAGER,
WHICH IS THE LOWEST LEVEL IN THE ORGANIZATION WHERE SUPERVISION IS
COMMON TO BOTH MAINTENANCE AND CUSTODIAL EMPLOYEES AND AT WHICH LEVEL
POLICY DECISIONS AFFECTING THE OVERALL MISSIONS OF THE ACTIVITY ARE
DISSEMINATED.
THE RECORD INDICATES THAT MAINTENANCE EMPLOYEES ARE SUPERVISED BY A
MAINTENANCE AND OPERATIONS FOREMAN WHO IS UNDER THE SUPERVISION OF THE
MAINTENANCE AND OPERATIONS GENERAL FOREMAN WHO, IN TURN, REPORTS TO THE
ASSISTANT BUILDING MANAGER. THE EVIDENCE REVEALS THAT ON OCCASION THE
MAINTENANCE AND OPERATIONS FOREMAN SUPERVISES BOTH MAINTENANCE AND
CUSTODIAL EMPLOYEES. IN THE CUSTODIAL GROUP, EMPLOYEES ARE UNDER THE
IMMEDIATE SUPERVISION OF A SQUAD SUPERVISOR WHO IS UNDER A SHIFT
SUPERVISOR. THE SHIFT SUPERVISOR REPORTS TO A FORCE FOREMAN WHO IS
UNDER THE SUPERVISION OF THE ASSISTANT BUILDING MANAGER.
MAINTENANCE EMPLOYEES
MAINTENANCE EMPLOYEES INCLUDE GENERAL MECHANICS, ELECTRICIANS,
PAINTERS AND CARPENTERS. GENERAL MECHANICS PERFORM DUTIES WHICH INCLUDE
PREVENTIVE MAINTENANCE OF POWER EQUIPMENT USED BY CUSTODIAL EMPLOYEES IN
THEIR CLEANING FUNCTIONS, SERVICING POWER EQUIPMENT, REPAIRING
ELECTRICAL EQUIPMENT (E.G. LIGHTS, MOTORS AND FANS), EMERGENCY PLUMBING,
AND REPAIRING STEAM LEAKS. ELECTRICIANS REPAIR A VARIETY OF ELECTRICAL
EQUIPMENT, PERFORM COMPLETE ELECTRICAL OR REWIRING JOBS, INSTALL AND
MAINTAIN SWITCH AND OUTLET BOXES, TEST OPERATION OF SWITCHES AND
EQUIPMENT, MAINTAIN SUBSTATIONS, METERING EQUIPMENT AND FUSE
DISCONNECTS. PAINTERS PAINT OR REFINISH BUILDING INTERIORS AND
EXTERIORS AND EQUIPMENT INCLUDING FURNITURE AND FIXTURES. THEY PREPARE
SURFACE FOR PAINTING, SET UP AND REMOVE LADDERS AND SCAFFOLDING AND MIX
AND BLEND PAINTING MATERIALS. THEY MAY ALSO PERFORM PAPERHANGING AND
WINDOW GLAZING IN CONJUNCTION WITH THEIR OTHER DUTIES. CARPENTERS
ERECT, ALTER, REPAIR, OR REMOVE PARTITIONS, REPLACE WINDOW FRAMING,
DOORS, MOLDING, TRANSOMS, PANELS, INSTALL AND REPAID DOOR LOCKS, AND
INSTALL WINDOW GLASS IN WINDOW FRAMES. THEY MAY ALSO REPLACE DAMAGED
FLOORING AND STAIRWAYS, AND THEY LAY FLOOR COVERING.
CUSTODIAL LABORERS
THIS POSITION INVOLVES A VARIETY OF CLEANING AND MISCELLANEOUS MANUAL
LABORING TASKS ASSOCIATED WITH THE OPERATION AND MAINTENANCE OF
GOVERNMENT-OWNED OR LEASED BUILDINGS AND OFFICES. TYPICALLY, CUSTODIAL
LABORERS PERFORM SURFACE CLEANING BY OPERATING POWERED CLEANING
EQUIPMENT; THEY ALSO LOAD AND UNLOAD TRUCKS, MOVE FURNITURE AND
SUPPLIES, REMOVE SNOW AND CUT GRASS.
THE RECORD REVEALS THAT WHILE THERE IS NO REQUIREMENT TO COMPLETE A
FORMAL APPRENTICE PROGRAM, OR PASS A WRITTEN EXAMINATION PRIOR TO
QUALIFYING FOR EMPLOYMENT AS A MAINTENANCE EMPLOYEE, IT WOULD BE
NECESSARY THAT SUCH AN EMPLOYEE HAVE SOME PRIOR SPECIALIZED EXPERIENCE
IN THE POSITION INVOLVED. THERE ARE NO APPARENT SKILL REQUIREMENTS FOR
THE POSITION OF CUSTODIAL LABORER.
MAINTENANCE AND CUSTODIAL EMPLOYEES ARE PAID ACCORDING TO THE
COORDINATED FEDERAL WAGE SYSTEM, THE FORMER AT WAGE GRADE 9 AND 10
LEVELS, THE LATTER OF WAGE GRADE 1 TO 5 LEVELS. THE LARGE MAJORITY OF
CUSTODIAL LABORERS ARE IN WAGE GRADES 1 AND 2.
THE RECORD REVEALS THAT WHILE INSTANCES OF ADVANCEMENT FROM CUSTODIAL
TO MAINTENANCE POSITIONS HAVE BEEN INFREQUENT, THE ACTIVITY HAS RECENTLY
INITIATED A PLAN WHICH PROVIDES FOR THE "UPWARD MOBILITY" OF ITS
EMPLOYEES TO ALLOW FOR ADVANCEMENT. UNDER THE ACTIVITY'S PLAN, TRAINING
IS TO BE PROVIDED THROUGH THE LOCAL SCHOOL SYSTEM, BASIC AND SECONDARY
EDUCATION, AS WELL AS ON-THE-JOB TRAINING, TO UPGRADE SKILLS AND QUALIFY
THE EMPLOYEES WHO HAVE THE POTENTIAL FOR MOVING UP.
THE OPERATION AND MAINTENANCE OF PUBLIC BUILDINGS REQUIRES 24-HOUR
COVERAGE, SEVEN DAYS A WEEK. EMPLOYEES WORK ONE OF 3 SHIFTS - 8:00 A.M.
- 4:30 P.M.; 4:00 P.M. - MIDNIGHT; AND MIDNIGHT TO 8:30 A.M. THE
RECORD REVEALS THAT BOTH CUSTODIAL AND MAINTENANCE WORKERS ARE ON DUTY
ON EVERY SHIFT WITH THE GREATER NUMBER OF CUSTODIAL EMPLOYEES WORKING AT
NIGHT WHEN BUILDINGS AND OFFICES ARE UNOCCUPIED. THE RECORD REVEALS
THAT THE JOB FUNCTIONS OF MAINTENANCE EMPLOYEES AND CUSTODIAL EMPLOYEES
ARE CLOSELY RELATED. CUSTODIANS, FOR EXAMPLE, READY THE SITE FOR
MAINTENANCE EMPLOYEES OR CLEAN UP AFTER MAINTENANCE EMPLOYEES HAVE
COMPLETED PAINTING, CARPENTERING, PLUMBING AND GENERAL REPAIR JOBS.
MAINTENANCE EMPLOYEES, ON THE OTHER HAND, ARE RESPONSIBLE FOR PROVIDING
PREVENTIVE MAINTENANCE, SERVICING AND REPAIR OF CLEANING MACHINES
UTILIZED BY CUSTODIAL EMPLOYEES. IN THE DAY-TO-DAY OPERATIONS, THE
RECORD REVEALS THAT CUSTODIAL AND MAINTENANCE WORKERS ALERT EACH OTHER
IF THEY NOTICE SOMETHING OUT OF ORDER OR IN NEED OF CLEANUP. IF A
CUSTODIAL OR MAINTENANCE EMPLOYEE IS NOT IMMEDIATELY AVAILABLE, A
"NOTICE OF WORK" IS FILLED OUT NOTING THE WORK REQUIRED AND ITS LOCATION
AND THIS NOTICE IS PLACED IN A SLOT OUTSIDE THE CUSTODIAL OR MAINTENANCE
OFFICE AS APPROPRIATE. THE RECORD DISCLOSES THAT CUSTODIAL AND
MAINTENANCE EMPLOYEES ARE IN FREQUENT COMMUNICATION DURING AN 8-HOUR
SHIFT.
ALTHOUGH CUSTODIAL AND MAINTENANCE EMPLOYEES HAVE SEPARATE
SUPERVISION AT THE LOWER LEVELS, THE EVIDENCE ESTABLISHES THAT THE FINAL
DECISION WITH RESPECT TO BOTH CLASSIFICATIONS AS TO ANNUAL LEAVE
SCHEDULES, SICK LEAVE AND DISCIPLINARY ACTIONS TAKES PLACE AT OR ABOVE
THE BUILDING MANAGER OR ASSISTANT BUILDING MANAGER LEVEL. IN ADDITION,
DECISIONS WITH RESPECT TO PERSONNEL POLICY, PRACTICES OR MATTERS
AFFECTING THE WORKING CONDITIONS OF CUSTODIAL AND MAINTENANCE EMPLOYEES
EMANATE FROM THE BUILDING MANAGER OR A HIGHER LEVEL.
THE RECORD REVEALS THAT CUSTODIAL AND MAINTENANCE EMPLOYEES WEAR THE
SAME TYPE OF UNIFORM AND BOTH PUNCH A TIME CLOCK.
BASED ON THE FOREGOING, I FIND THAT THE MAINTENANCE AND CUSTODIAL
EMPLOYEES IN THE UNIT PETITIONED FOR BY THE AFGE, HAVE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST IN THAT THEY SHARE THE SAME GENERAL
WORKING CONDITIONS; THE SAME SUPERVISION AT THE DECISION-MAKING LEVEL;
WORK AT THE SAME LOCATIONS, IN SOME INSTANCES, AT THE SAME TIME; AND
OCCASIONALLY WORK TOGETHER. IN THESE CIRCUMSTANCES AND NOTING ALSO THE
ACTIVITY'S "UPWARD MOBILITY" PLAN AND ITS ASSERTION THAT A COMBINED UNIT
OF MAINTENANCE AND CUSTODIAL EMPLOYEES WOULD PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF OPERATIONS, I FIND THAT THE FOLLOWING UNIT PETITIONED
FOR BY THE AFGE IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491:
ALL WAGE BOARD CUSTODIAL AND MAINTENANCE EMPLOYEES OF THE GENERAL
SERVICES ADMINISTRATION, PUBLIC SERVICES ADMINISTRATION, PUBLIC BUILDING
SERVICE FIELD OFFICES, SAN FRANCISCO BAY AREA, SAN FRANCISCO,
CALIFORNIA, EXCLUDING ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT
OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
I FIND ALSO, IN THE CIRCUMSTANCES INVOLVED HEREIN, THAT A SEPARATE
UNIT OF CUSTODIAL EMPLOYEES AS PETITIONED FOR BY THE NAGE, IS NOT
APPROPRIATE. THUS, AS NOTED ABOVE, CUSTODIAL EMPLOYEES HAVE, IN MANY
INSTANCES, THE SAME TERMS AND CONDITIONS OF EMPLOYMENT AS MAINTENANCE
EMPLOYEES. MOREOVER, BOTH GROUPS OF EMPLOYEES SHARE THE SAME
SUPERVISION AT THE DECISION-MAKING LEVEL AND THEIR JOB FUNCTIONS ARE
CLOSELY RELATED. ACCORDINGLY, AND CONSIDERING TO BE REPRESENTED IN A
MORE COMPREHENSIVE UNIT, I FIND THAT THE UNIT SOUGHT BY THE NAGE IS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. I SHALL THEREFORE
ORDER THAT ITS PETITION BE DISMISSED. /3/
IT IS HEREBY ORDERED THAT THE PETITION FILED BY THE NAGE BE, AND IT
HEREBY IS, DISMISSED.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2275; OR BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-76; OR BY NEITHER.
DATED, WASHINGTON, D.C.
MAY 11, 1971
/1/ TWO SEPARATE PETITIONS WERE FILED IN THE SUBJECT CASE. HOWEVER,
APPARENTLY IN VIEW OF THEIR RELATED NATURE, THE AREA ADMINISTRATOR
ASSIGNED THE SAME CASE NUMBER TO BOTH PETITIONS.
/2/ AT THE HEARING PETITIONER AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2275, HEREIN CALLED AFGE, MADE A MOTION TO
DISMISS THE PETITION FILED BY PETITIONER NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-76, HEREIN CALLED NAGE, ON THE GROUND
THAT THE NAGE'S PETITION COVERED AN "INAPPROPRIATE UNIT". THE HEARING
OFFICER REFERRED THIS MOTION TO THE ASSISTANT SECRETARY. IN VIEW OF THE
DISPOSITION HEREIN, I CONSIDER IT UNNECESSARY TO PASS ON THE AFGE'S
MOTION.
/3/ AS THE NAGE'S SHOWING OF INTEREST IS SUFFICIENT TO TREAT IT AS AN
INTERVENOR, I SHALL ORDER THAT ITS NAME BE PLACED ON THE BALLOT.
HOWEVER, BECAUSE THE UNIT FOUND APPROPRIATE IS LARGER THAN THE UNIT IT
SOUGHT INITIALLY, I SHALL PERMIT IT TO WITHDRAW FROM THE ELECTION UPON
NOTICE TO THE APPROPRIATE AREA ADMINISTRATOR WITHIN 10 DAYS OF THE
ISSUANCE OF THIS DECISION.
1 A/SLMR 38; P. 206; CASE NOS. 32-1498E.O., 32-1499E.O.; MAY 11,
1971.
VETERANS ADMINISTRATION,
REGIONAL OFFICE,
NEWARK, NEW JERSEY
A/SLMR NO. 38
THE SUBJECT CASE INVOLVED, AMONG OTHER THINGS, FOUR CHALLENGED
BALLOTS WHICH WERE SUFFICIENT IN NUMBER TO AFFECT THE RESULT OF A RUNOFF
ELECTION. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL UNION 2442 (AFGE) CHALLENGED TWO BALLOTS ON THE GROUNDS THAT THE
VOTERS WERE "MANAGEMENT OFFICIALS" AND THUS WERE INELIGIBLE TO
PARTICIPATE IN THE ELECTION. ALSO DISPUTED WAS THE FACT THAT THE
OBSERVER-IN-CHARGE PLACED ONE MAIL BALLOT IN A CHALLENGE ENVELOPE
BECAUSE THE VOTER FAILED TO OBSERVE THE INSTRUCTIONS FOR VOTING BY MAIL.
FURTHER, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL UNION 967
(NFFE) CHALLENGED THE BALLOT OF AN UNIDENTIFIED VOTER ON GROUNDS THAT IT
WAS IMPROPERLY MARKED AND THEREFORE SHOULD BE INVALIDATED.
UPON REVIEW OF THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND
THE ENTIRE RECORD IN THE CASE, INCLUDING THE AFGE'S REQUEST FOR REVIEW
OF THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS, THE ASSISTANT
SECRETARY FOUND THAT MANAGEMENT ANALYSIS LUCKING AND PERTAIN WERE
"MANAGEMENT OFFICIALS" WITHIN THE MEANING OF THE EXECUTIVE ORDER. SINCE
THE FUNCTIONS ASSIGNED TO THESE MANAGEMENT ANALYSTS PLACE THE INTERESTS
OF AN EMPLOYEE IN THIS CLASSIFICATION MORE CLOSELY WITH PERSONS WHO
FORMULATE, DETERMINE AND OVERSEE POLICIES THAN WITH PERSONNEL WHO CARRY
OUT THE RESULTANT POLICIES, IT WAS FOUND THAT THESE EMPLOYEES WERE NOT
ELIGIBLE TO PARTICIPATE IN THE ELECTION. IT WAS FOUND ALSO THAT UNDER
ALL THE CIRCUMSTANCES, THE MAIL BALLOT OF EMPLOYEE O'CONNOR AND THE
ALLEGED IMPROPERLY MARKED BALLOT WERE VALID VOTES AND SHOULD BE COUNTED.
THE ASSISTANT SECRETARY DID NOT RULE UPON TWO OTHER ISSUES RAISED AT
THE HEARING, SINCE, AS TO ONE ISSUED INVOLVING OBJECTIONS TO THE
ELECTION, THE ASSISTANT SECRETARY FOUND HE HAD PREVIOUSLY ISSUED A
DECISION PURSUANT TO A REQUEST FOR REVIEW. ON THE OTHER ISSUE,-- AN
ALLEGED DEPRIVATION OF AN EMPLOYEE'S RIGHT TO VOTE, BE FOUND SUCH MATTER
WAS IMPROPERLY BEFORE THE HEARING EXAMINER IN THIS PROCEEDING.
VETERANS ADMINISTRATION,
REGIONAL OFFICE,
NEWARK, NEW JERSEY
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL UNION 2442
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL UNION 967
ON DECEMBER 23, 1970, HEARING EXAMINER DAVID LONDON ISSUED HIS REPORT
AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING, IN PART,
THAT EMPLOYEES LUCKING AND PERTAIN WERE EMPLOYEES WITHIN THE MEANING OF
THE ORDER ELIGIBLE TO VOTE IN THE RUNOFF ELECTION IN THE SUBJECT CASES,
AND ACCORDINGLY, HE RECOMMENDED THAT THEIR BALLOTS BE SUBJECT CASES, AND
ACCORDINGLY, HE RECOMMENDED THAT THEIR BALLOTS BE OPENED AND COUNTED IN
DETERMINING THE FINAL RESULTS OF THE ELECTION. THE HEARING EXAMINER
FOUND ALSO THAT WHILE THE MAIL BALLOT OF EMPLOYEE O'CONNOR WAS NOT CAST
IN STRICT COMPLIANCE WITH THE ELECTION AGREEMENT AND APPLICABLE
REGULATIONS, THE FAILURE OF O'CONNOR TO ENCLOSE HIS BALLOT IN THE
SEPARATE SEALED ENVELOPE WAS NOT SUFFICIENT REASON FOR FINDING THE
BALLOT INVALID. HE THEREFORE RECOMMENDED THAT O'CONNOR'S BALLOT BE
COUNTED. WITH RESPECT THE CHALLENGED BALLOT IN THE SUBJECT CASES,
ALLEGED TO BE IMPROPERLY MARKED, THE HEARING EXAMINER STATED THAT HE WAS
CONVINCED "UNHESITATINGLY THAT THE VOTER CAST HIS BALLOT IN FAVOR OF
AFGE," AND HE CONCLUDED THAT THE NFFE CHALLENGE IN THIS RESPECT WAS
WITHOUT MERIT AND SHOULD BE OVERRULED.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE ENTIRE RECORD
INCLUDING THE AFGE'S REQUEST FOR REVIEW OF THE HEARING EXAMINER'S REPORT
AND RECOMMENDATIONS, I ADOPT THE FINDINGS AND RECOMMENDATIONS OF THE
HEARING EXAMINER EXCEPT AS MODIFIED HEREIN.
ROBERT C. LUCKING AND ROBERT E. PERTAIN
THE BALLOTS OF LUCKING AND PERTAIN, EMPLOYED BY THE ACTIVITY AS
MANAGEMENT ANALYSTS, GS-11, WERE CHALLENGED BY THE AFGE ON GROUNDS THAT
THEY ARE "MANAGEMENT OFFICIALS" AND, IN ACCORDANCE WITH SECTION 10(B)(1)
OF EXECUTIVE ORDER 11491, ARE BARRED FROM INCLUSION IN A UNIT DEEMED
APPROPRIATE FOR EXCLUSIVE RECOGNITION. THE HEARING EXAMINER CONCLUDED
THAT AFGE FAILED TO ESTABLISH THAT THESE EMPLOYEES WERE MANAGEMENT
OFFICIALS WITHIN THE MEANING OF THE ORDER. THEREFORE, HE FOUND, IN
ACCORDANCE WITH THE VIEW OF THE ACTIVITY AND THE NFFE, THEY WERE
EMPLOYEES ENTITLED TO PARTICIPATE IN AN ELECTION, AND RECOMMENDED THAT
THEIR BALLOTS BE OPENED AND COUNTED.
NEITHER LUCKING NOR PERTAIN WERE CALLED UPON TO TESTIFY AT THE
HEARING. THE JOB DESCRIPTION FOR THESE EMPLOYEES REFLECTS THAT
MANAGEMENT ANALYSTS GS-11, AMONG OTHER DUTIES, PROVIDE GUIDANCE AND
ASSISTANCE IN THE PLANNING, EXECUTION AND IMPLEMENTATION OF WORK
MEASUREMENT PROGRAMS IN ALL DIVISIONS, CONDUCT STUDIES AND ANALYSES
RELATING TO ORGANIZATIONAL STRUCTURE AND PERSONNEL REQUIREMENTS AND
RECOMMEND ACTION TO INSTITUTE CHANGES TO OBTAIN GREATER UTILIZATION OF
MANPOWER AND PERSONNEL CEILING, PROVIDING THE MANAGEMENT WITH EVALUATION
AND RECOMMENDATIONS TO IMPROVE OPERATIONS, MAINTAIN CLOSE LIAISON WITH
DIVISION PERSONNEL ENGAGED IN BUDGETARY WORK AND CONDUCT BUDGET MEETINGS
TO ASSURE UNIFORMITY OF INTERPRETATION OF INSTRUCTIONS. THE DESCRIPTION
ALSO INDICATES THAT THESE EMPLOYEES IMPLEMENT PLANS TO CONDUCT A WORK
SIMPLIFICATION PROGRAM AND AN EMPLOYEE AWARD PROGRAM. THEY CONDUCT
TRAINING OF HIGHER LEVELS OF SUPERVISION TO EXPLAIN THE BASIC PRINCIPLES
OF WORK SIMPLIFICATION TO ENABLE THEM, IN TURN, TO INSTRUCT FIRST LINE
SUPERVISORS AND OTHERS. TESTIMONY IN THE RECORD REVEALS THAT THESE
MANAGEMENT ANALYST EMPLOYEES ARE IN FREQUENT CONTACT WITH TOP MANAGEMENT
PERSONNEL AND DIVISION HEADS IN REFERENCE TO THE POLICIES, PRACTICES AND
PROCEDURES OF THE DIRECTION OF THE ACTIVITY. THE ACTIVITY'S PERSONNEL
OFFICER TESTIFIED THAT ONE OF THE MANAGEMENT ANALYSTS HEREIN REVIEWS
BUDGETARY FIGURES THAT ARE BEING SUBMITTED BY OPERATING ELEMENTS PRIOR
TO THEIR SUBMISSION TO THE DIRECTOR FOR FORWARDING TO AGENCY
HEADQUARTERS. THE PERSONNEL OFFICER ALSO TESTIFIED THAT BOTH OFITS
MANAGEMENT ANALYST GS-11'S BASICALLY, HAVE A RESPONSIBILITY "TO ASSURE
THAT THE PRACTICES AND PROCEDURES THAT HAVE BEEN ESTABLISHED BY THE
DIRECTOR ARE CARRIED OUT" AND IN SO DOING THEY ACT IN A STAFF CAPACITY.
HE ALSO AGREED THAT THE TERM "STAFF PERSONNEL" IS SYNONYMOUS WITH THE
TERM "SUPPORTIVE PERSONNEL." /1/
IN THE CIRCUMSTANCES OUTLINED ABOVE, I CONCLUDE THAT THE FUNCTIONS
ASSIGNED TO A MANAGEMENT ANALYST, GS-11 IN THE VETERANS ADMINISTRATION
REGIONAL OFFICE, NEWARK, NEW JERSEY PLACE THE INTERESTS OF AN EMPLOYEE
IN THIS CLASSIFICATION MORE CLOSELY WITH PERSONS WHO FORMULATE,
DETERMINE AND OVERSEE VETERANS ADMINISTRATION REGIONAL OFFICE POLICIES
THAN WITH PERSONNEL IN THE UNIT WHO CARRY OUT THE RESULTANT POLICIES.
/2/ ACCORDINGLY, I FIND THAT MANAGEMENT ANALYSTS LUCKING AND PERTAIN ARE
MANAGEMENT OFFICIALS WITHIN THE MEANING OF SECTION 10(B)(1) OF THE ORDER
AND THEREFORE ARE NOT ELIGIBLE TO PARTICIPATE IN THE ELECTION.
ACCORDINGLY, THE CHALLENGES TO THEIR BALLOTS ARE HEREBY AFFIRMED. /3/
PAUL O'CONNOR
THE MAIL BALLOT OF PAUL O'CONNOR WAS PLACED IN A CHALLENGE ENVELOPE
BY THE "OBSERVER-IN-CHARGE," WHO WAS AN ELECTION OBSERVER OF THE
ACTIVITY, BECAUSE O'CONNOR FAILED TO FOLLOW INSTRUCTIONS FOR VOTING BY
MAIL. THE HEARING EXAMINER CONCLUDED THAT WHILE O'CONNOR'S BALLOT WAS
NOT CAST IN STRICT COMPLIANCE WITH THE ELECTION AGREEMENT AND APPLICABLE
REGULATIONS, HIS FAILURE TO ENCLOSE THE BALLOT IN THE SEPARATE SEALED
ENVELOPE WAS NOT SUFFICIENT TO WARRANT INVALIDATING THE BALLOT. THE
HEARING EXAMINER NOTED ALSO THAT WHILE THE OBSERVER-IN-CHARGE, AN
IMPARTIAL OBSERVER, ACKNOWLEDGED SEEING THE BALLOT, THERE IS NO
CONTENTION THAT ANYONE ELSE PRESENT SAW IT AND HERE COMMENDED THAT
O'CONNOR'S BALLOT BE COUNTED.
THE AFGE ARGUES IN ITS REQUEST FOR REVIEW THAT WHILE THE
OBSERVER-IN-CHARGE WAS "IMPARTIAL IN THE SENSE THAT HE WAS NOT A MEMBER
OF EITHER PETITIONING UNION, HE WAS ACTING AS A MANAGEMENT
REPRESENTATIVE IN THE ELECTION AND CANNOT BE CONSIDERED AS TRULY
IMPARTIAL IN THE SENSE THAT THE TERM IS USED IN LABOR-RELATIONS." THE
AFGE ARGUES FURTHER THAT WHILE OTHER OBSERVERS ADMITTED NOT SEEING
O'CONNOR'S BALLOT, "IT IS POSSIBLE THAT ONE OF THEM DID SEE THE BALLOT
BUT DUE TO FEAR OF EMBARRASSMENT OR TO AVOID THE NECESSITY OF AN
ADDITIONAL ELECTION DID NOT WISH TO ADMIT THE FACT."
TESTIMONY INDICATES CLEARLY THAT NONE OF THE REPRESENTATIVES OF THE
PARTIES TO THE ELECTION SAW THE MARKINGS ON THE BALLOT. FURTHERMORE,
THE RECORD REVEALS THAT AT THE TIME OF THE INCIDENT NEITHER ONE OF THE
PARTICIPATING UNIONS MENTIONED CHALLENGING THE DISPUTED BALLOT. IN
THESE CIRCUMSTANCES, I AGREE WITH THE HEARING EXAMINER'S FINDINGS THAT
FAILURE TO ENCLOSE THE BALLOT IN A SEALED ENVELOPE IS NOT SUFFICIENT
GROUNDS TO WARRANT INVALIDATING O'CONNOR'S BALLOT, AND I ADOPT HIS
RECOMMENDATION THAT SAID BALLOT BE COUNTED.
ALLEGED IMPROPERLY MARKED BALLOT
DURING THE COUNTING OF BALLOTS, THE NFFE CHALLENGED A BALLOT ON
GROUNDS THAT IT DID NOT CONTAIN A CROSS OR CHECK MARK AS REQUIRED BY THE
DIRECTIONS CONTAINED IN THE ELECTION AGREEMENT.
THE HEARING EXAMINER CONCLUDED THAT THE EVIDENCE INDICATED THAT THE
VOTER INTENDED TO VOTE FOR THE AFGE REASONING THAT IF THE VOTER HAD
INTENDED TO CORRECT AN INADVERTENT MARK OF AN X IN THE WRONG BOX, HE
WOULD HAVE PUT SOME KIND OF MARK IN THE NFFE BLOCK, OR WOULD HAVE
DESTROYED THE BALLOT, OR WOULD HAVE OBTAINED ANOTHER BALLOT. INSTEAD,
HE DROPPED THE BALLOT AS MARKED INTO THE BALLOT BOX INDICATING HE WANTED
HIS BALLOT COUNTED.
IN ALL THE CIRCUMSTANCES AND UPON CAREFUL EXAMINATION OF THE DISPUTED
BALLOT, I ADOPT THE HEARING EXAMINER'S FINDING. ACCORDINGLY, I FIND
THAT THE NFFE'S CHALLENGE IN THIS RESPECT SHOULD BE OVERRULED AND THE
BALLOT COUNTED.
DURING THE HEARING, THE AFGE ATTEMPTED TO RAISE THE MATTER OF ALLEGED
OBJECTIONABLE CONDUCT BY A REPRESENTATIVE OF THE ACTIVITY WITH RESPECT
TO A PRE-ELECTION SPEECH. THE HEARING EXAMINER REFUSED TO HEAR ANY
EVIDENCE ON THIS ISSUE BECAUSE IN HIS VIEW THE SCOPE OF THE HEARING WAS
LIMITED TO OBTAINING EVIDENCE WITH RESPECT TO CHALLENGED BALLOTS.
I AGREE WITH THE HEARING EXAMINER'S FINDINGS IN THIS REGARD.
MOREOVER, IT SHOULD BE NOTED THAT ON NOVEMBER 25, 1970, I RULED ON THE
AFGE'S OBJECTIONS PURSUANT TO ITS REQUEST FOR REVIEW OF THE REGIONAL
ADMINISTRATOR'S REPORT ON OBJECTIONS.
THE NFFE ASSERTED DURING THE HEARING THAT AN ELIGIBLE EMPLOYEE, LOUIS
SIMON, WAS DEPRIVED OF THE OPPORTUNITY TO VOTE SINCE HIS NAME DID NOT
APPEAR ON THE CERTIFIED LIST OF VOTERS AND, THEREFORE, HE MADE NO EFFORT
TO VOTE.
INASMUCH AS THE NOTICE OF HEARING IN THIS MATTER WAS LIMITED SOLELY
TO ISSUES RELATING TO CHALLENGED BALLOTS, I CONSIDER THIS ISSUE WAS NOT
PROPERLY BEFORE THE HEARING EXAMINER AND ACCORDINGLY, I FIND IT
UNNECESSARY TO RULE UPON THIS MATTER.
IT IS HEREBY DIRECTED THAT THE BALLOT OF PAUL O'CONNOR BE OPENED AND
COUNTED AND THAT THE BALLOT OF THE UNIDENTIFIED VOTER WHICH WAS CAST FOR
THE AFGE BE COUNTED AT A TIME AND PLACE TO BE DETERMINED BY THE
APPROPRIATE REGIONAL ADMINISTRATOR. THE REGIONAL ADMINISTRATOR SHALL
HAVE A REVISED TALLY OF BALLOTS SERVED ON THE PARTIES, AND TAKE SUCH
ADDITIONAL ACTION AS REQUIRED BY THE REGULATIONS OF THE ASSISTANT
SECRETARY.
DATED, WASHINGTON, D.C.
MAY 11, 1971
/1/ THE RECORD DISCLOSES THAT AGENCY REGULATIONS EXCLUDE "EMPLOYEES
SERVING IN SUPPORT ACTIVITIES WHOSE PRINCIPAL DUTIES INVOLVE ADVISING OR
ASSISTING MANAGEMENT ON PROGRAM ADMINISTRATION OR MANPOWER UTILIZATION"
FROM PARTICIPATING IN THE MANAGEMENT OF, OR REPRESENTING A LABOR
ORGANIZATION, IN INSTANCES INVOLVING EXCLUSIVE RECOGNITION.
/2/ CF. VETERANS ADMINISTRATION HOSPITAL, AUGUSTA, GEORGIA, A/SLMR
NO. 3.
/3/ IN REACHING THE ABOVE CONCLUSION, NO RELIANCE WAS PLACED UPON
SECTION 202.20(D) OF THE REGULATIONS OF THE ASSISTANT SECRETARY SINCE
THERE IS NO REQUIREMENT IN THIS SECTION THAT A CHALLENGING PARTY MUST
MEET AN EVIDENTIARY BURDEN OF PROOF IN ESTABLISHING THE VALIDITY OF HIS
CHALLENGE.
VETERANS ADMINISTRATION
REGIONAL OFFICE,
NEWARK, NEW JERSEY,
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL UNION 2442,
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES LOCAL UNION 967,
BRUCE I. WAXMAN, ESQ., OF
WASHINGTON, D.C., FOR PETITIONER
IN CASE NO. 32-1498 E.O.
IRVING I. GELLER, ESQ., OF
WASHINGTON, D.C., FOR PETITIONER
IN CASE NO. 32-1499.
BEFORE: DAVID LONDON, HEARING EXAMINER.
ON JUNE 9, 1970, A RUN-OFF ELECTION TO SELECT A BARGAINING
REPRESENTATIVE WAS CONDUCTED AMONG ALL CLASSIFIED NONPROFESSIONAL
EMPLOYEES EMPLOYED AT THE VETERANS ADMINISTRATION REGIONAL OFFICE,
NEWARK, NEW JERSEY (HEREIN CALLED THE FACILITY), BUT EXCLUDING
PROFESSIONAL EMPLOYEE, MANAGERIAL EXECUTIVES, SUPERVISORS, GUARDS, AND
EMPLOYEES ENGAGED IN PERSONNEL WORK NOT OF A CLERICAL NATURE. THE TWO
LABOR ORGANIZATIONS PARTICIPATING IN THAT ELECTION WERE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION 2442 (HEREIN
CALLED AFGE), AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL UNION
967 (HEREIN CALLED NFFE). THE DULY ATTESTED TALLY OF BALLOTS ISSUED ON
THE SAME DAY, DECLARED AND CERTIFIED THAT 115 VOTES WERE CAST FOR NFFE,
115 VOTES FOR AFGE, AND THAT THERE WERE FOUR CHALLENGED BALLOTS,
SUFFICIENT IN NUMBER TO AFFECT THE RESULTS OF THE ELECTION.
TWO OF THE CHALLENGED BALLOTS, THOSE OF ROBERT C. LUCKING AND ROBERT
E. PERTAIN WERE CHALLENGED BY AFGE ON THE GROUND THAT THESE TWO
EMPLOYEES WERE MANAGEMENT OFFICIALS AND, THEREFORE, INELIGIBLE TO
PARTICIPATE IN THE ELECTION. THE MAILED BALLOT OF PAUL O'CONNOR WAS
ALSO CHALLENGED BY AFGE ON THE GROUND THAT "ITS SECRECY (WAS) NOT
ASSURED." THE FOURTH CHALLENGE WAS INTERPOSED BY NFFE TO THE BALLOT OF
AN UNIDENTIFIED BUT OTHERWISE ELIGIBLE VOTER ON THE GROUND THAT THE
BALLOT WAS NOT MARKED IN A MANNER TO INDICATE "AN ACCEPTABLE EXPRESSION
OF INTENT OF (THAT) EMPLOYEE'S VOTE."
AFTER RECEIVING AND CONSIDERING THE REPORT OF THE FACILITY AREA
ADMINISTRATOR'S REPORT "WITH RESPECT TO THE ESSENTIAL FACTS AND
POSITIONS OF THE PARTIES," AND CONCLUDING THAT A HEARING WAS NECESSARY
TO RESOLVE RELEVANT QUESTIONS OF FACT, THE DEPARTMENT'S REGIONAL
ADMINISTRATOR, ON OCTOBER 9, 1970, CONSOLIDATED THE ABOVE DESIGNATED
CASES. HE FURTHER ORDERED THAT A HEARING BE CONDUCTED BEFORE A
DESIGNATED HEARING EXAMINER "TO TAKE EVIDENCE, MAKE FACTUAL FINDINGS AND
RECOMMENDATIONS WITH RESPECT TO THE CHALLENGES TO THE ASSISTANT
SECRETARY." THAT HEARING WAS HELD AT NEWARK, NEW JERSEY, ON NOVEMBER 11,
1970, BEFORE THE UNDERSIGNED DULY DESIGNATED HEARING EXAMINER. AT THAT
HEARING, BOTH AFGE AND NFFE WERE REPRESENTED BY COUNSEL AND WERE
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. IN AN OFF-THE-RECORD DISCUSSION, ORAL ARGUMENT
WAS WAIVED BY BOTH LABOR ORGANIZATIONS. SINCE THE CLOSE OF THE HEARING,
BRIEFS WERE SUBMITTED BY BOTH ORGANIZATIONS AND HAVE BEEN DULY
CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CONSOLIDATED PROCEEDING I MAKE THE
FOLLOWING FINDINGS AND RECOMMENDATIONS.
AT THE OPENING OF THE HEARING, COUNSEL FOR AFGE SOUGHT TO INTERJECT
INTO THE PROCEEDINGS AN ISSUE OTHER THAN THOSE DESCRIBED ABOVE--
"WHETHER A LAST-MINUTE SPEECH BY MANAGEMENT OF THE VETERAN
ADMINISTRATION REGIONAL OFFICE IN NEWARK, WHICH WAS DELIVERED TO ALL THE
EMPLOYEES ON COMPANY TIME ON THE DAY BEFORE THE ELECTION, HAD SUCH AN
UNWHOLESOME AND UNSETTLING EFFECT AS TO TEND TO INTERFERE WITH THE SOBER
AND THOUGHTFUL CHOICE WHICH A FREE ELECTION IS DESIGNATED TO REFLECT." I
REJECT THIS ATTEMPT TO INTERJECT THAT ISSUE INTO THE PROCEEDING FOR THE
FOLLOWING REASONS.
AS PREVIOUSLY INDICATED THE REGIONAL ADMINISTRATOR'S ORDER OF OCTOBER
9, 1970, A COPY OF WHICH WAS TIMELY SERVED ON AFGE, UNEQUIVOCALLY STATED
THAT THE INSTANT HEARING WOULD BE HELD TO ENABLE THE HEARING EXAMINER TO
"MAKE FACTUAL FINDINGS AND RECOMMENDATIONS WITH RESPECT TO THE (FOUR)
CHALLENGES" DESCRIBED ABOVE, AND NOTHING ELSE. ACCORDINGLY, I ANNOUNCED
AT THE HEARING THAT I DEEMED MYSELF TO BE WITHOUT AUTHORITY TO CONSIDER
ANY OTHER ISSUE.
IN ANY EVENT, THE PROPOSED ISSUE CANNOT BE LITIGATED BECAUSE OF THE
FAILURE TO AFGE TO COMPLY WITH THE REGULATIONS OF THE ASSISTANT
SECRETARY DEALING WITH SUCH OBJECTIONS. SEC. 202.20 OF THOSE
REGULATIONS PROVIDES THAT OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF
THE ELECTION MUST BE FILED WITH THE AREA ADMINISTRATOR WITHIN FIVE DAYS
AFTER THE TALLY OF BALLOTS IS FURNISHED, WITH SIMULTANEOUS SERVICE ON
THE OTHER PARTIES. IT SPECIFICALLY FURTHER PROVIDES THAT "SUCH FILING
MUST BE TIMELY WHETHER OR NOT THE CHALLENGED BALLOTS ARE SUFFICIENT IN
NUMBER TO AFFECT THE RESULTS OF THE ELECTION." HERE, THE TALLY OF
BALLOTS WAS FURNISHED ALL PARTIES ON JUNE 9, 1970. AFGE, IN ITS BRIEF,
CONCEDES THAT ITS "POSITION" WITH RESPECT TO THE PROPOSED OBJECTION TO
CONDUCT AFFECTING THE RESULTS OF THE ELECTION WERE NOT FILED WITH THE
AREA ADMINISTRATOR UNTIL JUNE 24, 1970, AND NFFE EXHIBIT 4 ESTABLISHES
THAT THE COPY SERVE ON NFFE WAS MAILED BY AFGE ON JUNE 25, 1970. I
ADHERE TO THE RULING MADE AT THE HEARING.
AS PREVIOUSLY INDICATED, THE BALLOTS OF ROBERT C. LUCKING AND ROBERT
E. PERTAIN WERE CHALLENGED BY AFGE ON THE GROUND THAT THEY ARE
"MANAGEMENT OFFICIALS" AND, THEREFORE, BARRED FROM INCLUSION IN A UNIT
OF FEDERAL EMPLOYEES. (EXECUTIVE ORDER 11491, SEC. 2(B)).
BOTH MEN ARE EMPLOYED BY THE FACILITY AS "MANAGEMENT ANALYSTS
(GS-303-11." ACCORDING TO THEIR JOB DESCRIPTION (AFGE EX. 2), BOTH MEN
CONDUCT STUDIES AND MAKE ANALYSES RELATING TO ORGANIZATIONAL STRUCTURE
AND UTILIZATION OF MANPOWER AND PERSONNEL REQUIREMENTS. AS THE
REPRESENTATIVE OF THE MANPOWER STAFF, THE MANAGEMENT ANALYST "CONFERS
WITH THE HEADS OF ALL OPERATING DIVISIONS ON THE IMPROVEMENT OF
MANAGEMENT PRACTICES GENERALLY." THEIR JOB DESCRIPTION, IN DISCUSSING
THE SUPERVISORY CONTROLS OVER THE POSITION, STATES: "THE INCUMBENT
WORKS UNDER THE GENERAL DIRECTION OF THE MANAGEMENT ANALYSIS OFFICER AND
PERFORMS DUTIES AT THE DIRECTION OF THE ASSISTANT MANAGER AS A MEMBER OF
THE MANAGEMENT STAFF."
UNFORTUNATELY, NEITHER OF THE TWO MEN WHOSE BALLOTS WERE CHALLENGED
WERE CALLED UPON TO TESTIFY CONCERNING THE DUTIES THEY ACTUALLY
PERFORMED. IN BEHALF OF THE CHALLENGED, CHARLES BROWN, PRESIDENT OF
AFGE, TESTIFIED THAT HE HAS "SEEN" LUCKING AND PERTAIN "GIVING
INSTRUCTIONS TO-- DIVISION HEADS OR MANAGEMENT PERSONNEL." ON
CROSS-EXAMINATION, WHEN QUESTIONED ABOUT THESE INCIDENTS, HE TESTIFIED
THAT ON TWO OCCASIONS HE OVERHEARD PERTAIN SHARPLY REQUEST THESE
INDIVIDUALS TO "HURRY UP WITH (THEIR) REPORT" WHICH PERTAIN APPARENTLY
EXPECTED TO RECEIVE.
WALTER SYRACUSE, FIRST VICE-PRESIDENT OF AFGE, TESTIFIED THAT HE HAS
"QUITE FREQUENTLY" SEEN LUCKING AND PERTAIN "TALK TO (A) SUPERVISOR OR
DIVISION CHIEFS," AND THAT "WHEN CERTAIN SITUATIONS EXIST IN THE OFFICE,
EITHER MR. LUCKING OR MR. PERTAIN-- WILL BE SENT OR WILL COME TO THIS
DIVISION TO INSPECT AND TO FIND SOME METHOD OF ADJUSTING THE SITUATION."
BROWN TESTIFIED THAT "WITHIN THE PAST YEAR," BY REASON OF HIS
POSITION AS PRESIDENT OF AFGE, HE ATTENDED A BI-WEEKLY MANAGEMENT-STAFF
MEETING AND SAW LUCKING AND PERTAIN AT THAT MEETING. THE OCCASION FOR
THE MEETING, HE TESTIFIED, WAS BECAUSE THE FACILITY HAD ACHIEVED "100
PER CENT IN THE BOND" CAMPAIGN. SYRACUSE TESTIFIED THAT IN MARCH OR
APRIL 1970 HE ATTENDED SUCH A MEETING AND RECEIVED HIS "25 YEAR PIN."
AMONG THOSE PRESENT WAS PERTAIN.
ROBERT F. PELKA, THE FACILITY'S PERSONNEL OFFICER, WHO SUBMITTED THE
JOB DESCRIPTION UNDER WHICH LUCKING AND PERTAIN ARE SERVING, TESTIFIED
THAT NEITHER MAN IS A "MANAGEMENT EXECUTIVE" NOR "A SUPERVISOR." BOTH OF
THEM REPORT TO THE MANAGEMENT ANALYST OFFICER. WITH RESPECT TO THE
BI-WEEKLY STAFF CONFERENCES, PELKA TESTIFIED THAT THEY ARE PRIMARILY
"INFORMATIONAL," FOR BRIEFING ON "DOCUMENTS COMING INTO THIS OFFICE.
MANAGEMENT POLICIES AND PRACTICES ARE FREQUENTLY DISCUSSED AT THESE
MEETINGS." SEATED AT THE HEAD OF THE LONG CONFERENCE TABLE DURING THESE
MEETINGS ARE ALL DIVISION CHIEFS, REPRESENTATIVES FROM THE OUT-PATIENT
CLINIC, THE VA HOSPITAL, THE ASSISTANT SUPPLY OFFICER. ASSISTANT
DIVISION CHIEFS AND THE TWO MANAGEMENT ANALYSTS SIT "BACK OF THE TABLE."
JAMES C. LOMBARDO, CHIEF ATTORNEY FOR THE FACILITY, TESTIFIED THAT
THE "MAJOR DUTIES AND RESPONSIBILITIES" OF THE TWO MEN UNDER
CONSIDERATION WAS TO SERVE "AS LIAISON REPRESENTATIVE TO THE OPERATING
DIVISION, VALIDATION OF QUALITY REVIEW AND ASSISTING OPERATING OFFICIALS
WITH BUDGET SUBMISSIONS AND WORKLOADS." HE EMPHASIZED "THAT NEITHER OF
THESE EMPLOYEES HAS ANY SUPERVISORY RESPONSIBILITIES."
CONTRARY TO THE CONTENTION ADVANCED BY AFGE TO THE ACTING AREA
ADMINISTRATOR, LABOR MANAGEMENT SERVICES ADMINISTRATION, THE TWO
MANAGEMENT ANALYSTS ARE NOT PART OF "AGENCY MANAGEMENT" AS THAT TERM IS
DEFINED IN EXECUTIVE ORDER 11491. SEC. 2(F) OF THAT ORDER READS AS
FOLLOWS: "'AGENCY MANAGEMENT' MEANS THE AGENCY HEAD AND ALL MANAGEMENT
OFFICIALS, SUPERVISORS, AND OTHER REPRESENTATIVES OF MANAGEMENT HAVING
AUTHORITY TO ACT FOR THE AGENCY ON ANY MATTERS RELATING TO THE
IMPLEMENTATION OF THE AGENCY LABOR-MANAGEMENT RELATIONS PROGRAM
ESTABLISHED UNDER THIS ORDER." THERE IS NO CONTENTION THAT THE ANALYSTS
HAD SUCH AUTHORITY. NOR IS IT CONTENDED THAT THEY HAD AUTHORITY TO
HIRE, DISCHARGE, OR DISCIPLINE EMPLOYEES, A FACTOR GENERALLY RECOGNIZED
AS ONE TO BE CONSIDERED, AMONG OTHERS, IN DETERMINING WHETHER EMPLOYEES
ARE SUPERVISORS OR PART OF MANAGEMENT.
FINALLY, IT IS UNDISPUTED THAT BOTH OF THESE EMPLOYEES WERE INCLUDED
ON THE OFFICIAL LIST OF ELIGIBLE VOTERS APPROVED BY OFFICIALS OF BOTH
LABOR ORGANIZATIONS PRIOR TO BOTH THE RUN-OFF ELECTION UNDER
CONSIDERATION, AND THE PRECEDING ELECTION OF MAY 12, 1970. THOUGH THIS
DID NOT PRECLUDE A SUBSEQUENT CHALLENGE, THERE IS NO CONTENTION THAT
THERE WAS ANY CHANGE IN THE STATUS OF THESE TWO MEN SINCE THE ELIGIBLE
VOTERS LISTS WERE APPROVED.
ON THE ENTIRE RECORD I AM CONVINCED THAT AFGE HAS FAILED TO SUSTAIN
THE BURDEN RESTING UPON IT /1/ TO ESTABLISH THAT ON JUNE 9, 1970,
LUCKING AND PERTAIN WERE MANAGEMENT OFFICIALS AS THAT TERM IS USED IN
SEC. 10(B)(1) OF EXECUTIVE ORDER 11491 BARRING MANAGEMENT OFFICIALS FROM
INCLUSION IN A UNIT OF FEDERAL EMPLOYEES. INSTEAD, I FIND THAT THEY
WERE EMPLOYEES ENTITLED TO PARTICIPATE IN AN ELECTION TO DETERMINE WHICH
LABOR ORGANIZATION THEY DESIRE AS EXCLUSIVE REPRESENTATIVE.
ACCORDINGLY, IT WILL BE RECOMMENDED THAT THEIR BALLOTS BE OPENED AND
COUNTED IN DETERMINING THE FINAL RESULTS OF THE ELECTION.
THE AGREEMENT FOR CONSENT ELECTION UNDER WHICH THE ELECTION IN
QUESTION WAS CONDUCTED MADE PROVISION FOR VOTING BY MAIL BY EMPLOYEES
ABSENT FROM THE FACILITY ON THE DAY OF THE ELECTION. EACH SUCH ABSENT
VOTER WAS PROVIDED WITH A BLANK BALLOT, A WHITE SECRET BALLOT ENVELOPE,
A LARGER OUTER MAILING ENVELOPE, AND INSTRUCTIONS FOR PREPARING THE
MAILED BALLOT. AMONG THOSE INSTRUCTIONS WAS A DIRECTION THAT THE MARKED
BALLOT BE SEALED IN THE SECRET BALLOT ENVELOPE AND ENCLOSED IN THE
LARGER MANILA ENVELOPE.
THE OPENING OF MAILED-IN BALLOTS OCCURRED AT APPROXIMATELY 8:15 A.M.
ON JUNE 9. PRESENT WERE TWO NEUTRAL OBSERVERS IN BEHALF OF THE
FACILITY-- JOHN F. FORRESTER, "THE OBSERVER IN CHARGE," AND LUZERA
BRYANT. ALSO PRESENT WERE CHARLES BROWN, WALTER SYRACUSE, AND FREDETHA
SPANN AS OBSERVERS IN BEHALF OF AFGE, AND STEPHEN COLUCCI, VINCENT
FERRARO, AND A THIRD REPRESENTATIVE IN BEHALF OF NFFE. THOMAS RYAN OF
THE LABOR DEPARTMENT WAS ALSO PRESENT.
WHEN THE MAILED BALLOT OF O'CONNOR WAS REACHED, MISS BRYANT OPENED
THE OUTER MANILA ENVELOPE, "REACHED HER HAND IN,-- AUTOMATICALLY PULLED
OUT THE BALLOT AND AUTOMATICALLY GAVE IT TO MR. FORRESTER." FORRESTER
TOOK THE BALLOT AND STATED: "SOMETHING IS WRONG-- THERE IS NO SEALED
ENVELOPE, I MUST ADMIT I SAW IT." BOTH BROWN AND SYRACUSE TESTIFIED THAT
FORRESTER "ASKED AROUND THE TABLE 'DID ANYONE ELSE SEE IT' AND EVERYONE
ELSE REPLIED THEY HAD NOT SEEN THE MARKING ON THE BALLOT." NEITHER AFGE,
NOR NFFE, CHALLENGED THE BALLOT, BUT FORRESTER, "IN HIS OFFICIAL
CAPACITY AS THE OFFICER OBSERVER, AUTOMATICALLY PUT IT IN THE CHALLENGE
ENVELOPE."
AFGE NOW CONTENDS IN ITS BRIEF THAT BECAUSE "O'CONNOR'S BALLOT IS
SUBJECT TO SERIOUS QUESTION" IT SHOULD BE DECLARED "VOID BECAUSE ITS
SECRECY CANNOT BE ASSURED." THOUGH THE BALLOT WAS NOT CAST IN STRICT
COMPLIANCE WITH THE ELECTION AGREEMENT AND APPLICABLE REGULATIONS, THE
FAILURE TO ENCLOSE THE BALLOT IN A SEPARATE SEALED ENVELOPE IS NOT ONE
OF THE SEVEN GROUNDS WHICH THE AGREEMENT ITEMIZES AS SUFFICIENT TO
DECLARE THE BALLOT INVALID. THOUGH FORRESTER, THE FACILITY'S IMPARTIAL
OBSERVER, APPARENTLY SAW THE BALLOT, THERE IS NO CONTENTION THAT
O'CONNOR'S VOTE WAS EVER EXPOSED TO ANYONE ELSE. IN VIEW OF THE
PRESENTLY EXISTING TIE VOTE AT WHAT HAS ALREADY BEEN A RUN-OFF ELECTION,
IT WOULD BE EXTREMELY UNFORTUNATE IF THE FACILITY'S EMPLOYEES WERE
DENIED THE DESIGNATION OF A REPRESENTATIVE BECAUSE OF THIS INCIDENT.
/2/ ON THE ENTIRE RECORD, IT WILL BE RECOMMENDED THAT O'CONNOR'S BALLOT
BE COUNTED.
NFFE CHALLENGED THE BALLOT PERSONALLY CAST BY AN UNIDENTIFIED VOTER
AT THE JUNE 9 ELECTION (ASSISTANT SECRETARY'S EX. 6) ON THE GROUND THAT
"IT DID'NT FOLLOW THE DIRECTIONS OF THE AGREEMENT." THE DIRECTIONS
REFERRED TO WERE CONTAINED IN SEC. 1(B) OF THE ATTACHMENT TO THE CONSENT
ELECTION AGREEMENT (AFGE EX. 1) AND PROVIDES THAT BALLOTS WILL BE
DECLARED INVALID IF "(T) HERE IS NO CROSS OR CHECK MARK ON THE BALLOT."
THE BALLOT CONTAINED TWO BOXES, EACH OF WHICH WAS ABOUT ONE INCH
SQUARE. ONE BOX WAS DESIGNATED NFFE, THE OTHER AFGE. THE BALLOT
CONTAINED AN INSTRUCTION TO "MARK AN 'X' IN THE BOX OF YOUR CHOICE." THE
BALLOT IN QUESTION CLEARLY SHOWS AN X IN THE AFGE BOX, BUT THERE WERE
ALSO A NUMBER OF SCRIBBLED LINES IN THE SAME BOX. THE NFFE BOX WAS LEFT
COMPLETELY BARE. THE BALLOT ALSO CONTAINED THE ADMONITION THAT IF THE
VOTER SHOULD "MARK THE WRONG BOX, MAKE ERASURES OR DEFACE IN ANY MANNER,
RETURN IT TO THE OBSERVER IN CHARGE FOR A NEW ONE."
CAREFUL EXAMINATION OF THE BALLOT CONVINCES ME UNHESITATINGLY THAT
THE VOTER HAD CAST HIS VOTE IN FAVOR OF AFGE. IF, AS CONTENDED, THE
SCRIBBLING WAS INTENDED TO VOID THE EFFECT OF THE X FOR AFGE, THE VOTER
WOULD EITHER HAVE PLACED SOME MARK "IN THE NFFE BOX, OR DESTROYED OR
RETURNED THE MARKED BALLOT TO THE OBSERVER IN CHARGE AND OBTAINED
ANOTHER BALLOT. HE DID NEITHER. INSTEAD, HE DROPPED THE BALLOT IN THE
BALLOT BOX, THEREBY INDICATING THAT HE WANTED HIS VOTE TO BE COUNTED.
THE NFFE CHALLENGE TO THAT BALLOT HAS NO MERIT AND SHOULD BE OVERRULED.
FIVE MINUTES BEFORE THE POLLS WERE CLOSED ON JUNE 9, THE OBSERVER FOR
NFFE REQUESTED THE OBSERVER IN CHARGE, AND THE REPRESENTATIVE OF THE
LABOR DEPARTMENT, TO SUMMON EMPLOYEE LOUIS SIMON TO COME TO THE POLLS
AND CAST HIS VOTE. THOUGH SIMON MAY HAVE BEEN AN ELIGIBLE VOTER, HIS
NAME DID NOT APPEAR ON THE CERTIFIED LIST OF VOTERS. THE REQUEST WAS
DENIED. SIMON SUBSEQUENTLY TOLD THE NFFE REPRESENTATIVE THAT HE, SIMON,
"FELT HE WAS INELIGIBLE TO VOTE AND HE WAS NOT GOING TO GO (TO THE
POLLS) AND MAKE A FOOL OF HIMSELF AND GET CHALLENGED."
SEC. 19(A)(1) OF EXECUTIVE ORDER 11491 MAKES IT AN UNFAIR LABOR
PRACTICE FOR AN AGENCY TO INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE
IN THE EXERCISE OF HIS RIGHTS UNDER THE ORDER. TO REQUIRE AN EMPLOYEE
TO COME TO THE POLLING PLACE TO VOTE WOULD BE TO COERCE THAT EMPLOYEE IN
HIS RIGHT UNDER THE ORDER TO REFRAIN FROM ANY ACTIVITY CONNECTED WITH
EXCLUSIVE REPRESENTATION OF FEDERAL EMPLOYEES BY A LABOR ORGANIZATION.
IF SIMON DESIRED TO VOTE, THE PROPER PROCEDURE WAS TO PRESENT HIMSELF AT
THE POLLING PLACE, TO BE CHALLENGED AND TO HAVE HIS VOTE PLACED IN THE
CHALLENGE ENVELOPE. THE GUIDELINES FROM THE DEPARTMENT OF LABOR
SPECIFICALLY PROVIDE FOR SUCH A CONTINGENCY. /3/ THE REQUEST TO SUMMON
SIMON WAS PROPERLY DENIED.
ON THE ENTIRE RECORD I RECOMMEND:
1. THAT THE CHALLENGE TO THE BALLOTS OF ROBERT C. LUCKING AND ROBERT
E. PERTAIN BE OVERRULED AND THAT THEIR BALLOTS BE COUNTED.
2. THAT THE CHALLENGE TO THE MAILED BALLOT OF PAUL O'CONNOR
(ASSISTANT SECRETARY'S EXHIBIT 5) BE OVERRULED AND THAT HIS BALLOT BE
COUNTED.
3. THAT THE CHALLENGE TO THE BALLOT OF THE UNIDENTIFIED VOTER
(ASSISTANT SECRETARY'S EXHIBIT 6) BE OVERRULED AND THAT THE BALLOT BE
COUNTED. 4 4. THAT NO FURTHER ACTION BE TAKEN TO SECURE THE VOTE OF
LOUIS SIMON. 19 DAVID LONDON
DATED AT WASHINGTON, D.C.
DECEMBER 23, 1970.
/1/ SEC. 202.20(D) OF THE RULES AND REGULATIONS OF THE ASSISTANT
SECRETARY FOR LABOR RELATIONS.
/2/ SEE TRIPLE J. VARIETY DRUG CO., 168 NLRB NO. 140.
/3/ ASSISTANT SECRETARY OF LABOR-MANAGEMENT RELATIONS, U.S.
DEPARTMENT OF LABOR, PROCEDURAL GUIDE FOR CONDUCT OF ELECTIONS UNDER
SUPERVISION OF THE ASSISTANT SECRETARY PURSUANT TO EXECUTIVE ORDER
11491, PAGES 7-8.
1 A/SLMR 37; P. 203; CASE NOS. 42-1244, 42-1273; MAY 11, 1971.
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU,
FLORIDA ARMY NATIONAL GUARD AND FLORIDA AIR NATIONAL GUARD,
A/SLMR NO. 37
THESE CASES INVOLVED PETITIONS BY THE DIFFERENT LOCALS OF THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) FOR ELECTIONS AMONG
FLORIDA NATIONAL GUARD TECHNICIANS. ONE PETITION SOUGHT A UNIT OF ALL
AIR NATIONAL GUARD TECHNICIANS IN THE STATE; THE OTHER SOUGHT ALL ARMY
NATIONAL GUARD TECHNICIANS IN THE STATE, EXCEPT THOSE ATTACHED TO AN
ARMY-AVIATION UNIT, WHICH WAS ALREADY REPRESENTED ON AN EXCLUSIVE BASIS
BY A THIRD LOCAL OF THE NAGE. THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3167 (AFGE) INTERVENED IN THE FLORIDA ARMY NATIONAL
GUARD PROCEEDING AND, ALONG WITH THE ACTIVITY, CONTENDED THAT THE ONLY
APPROPRIATE UNIT MUST INCLUDE ALL NATIONAL GUARD TECHNICIANS IN THE
STATE.
THE ASSISTANT SECRETARY DETERMINED THAT THE FLORIDA AIR NATIONAL
GUARD TECHNICIANS CONSTITUTE AN APPROPRIATE UNIT IN VIEW OF THE RECORD,
WHICH INDICATED THAT, WITH THE EXCEPTION OF FOUR EMPLOYEES, ALL AIR
NATIONAL GUARD TECHNICIANS WERE BASED AT THE SAME LOCATION, THAT THEY
RECEIVED SPECIALIZED TRAINING AND THAT THEY MAINTAINED EQUIPMENT WHICH
GENERALLY WAS MORE SOPHISTICATED THAN THAT MAINTAINED BY OTHER ARMY OR
ARMY-AVIATION TECHNICIANS. IN THESE CIRCUMSTANCES, THE ASSISTANT
SECRETARY DIRECTED THAT AN ELECTION BE HELD IN A UNIT OF ALL FLORIDA AIR
NATIONAL GUARD TECHNICIANS.
THE ASSISTANT SECRETARY ALSO FOUND THAT A SEPARATE UNIT OF FLORIDA
ARMY NATIONAL GUARD TECHNICIANS CONSTITUTED AN APPROPRIATE UNIT IN VIEW
OF THESE EMPLOYEES' MANY COMMON TERMS AND CONDITIONS OF EMPLOYMENT.
MOREOVER, HE NOTED THAT IN TWO PRIOR DECISIONS SIMILAR UNITS OF ARMY
NATIONAL GUARD TECHNICIANS WERE FOUND TO BE APPROPRIATE. ACCORDINGLY,
THE ASSISTANT SECRETARY DIRECTED AN ELECTION AMONG ALL FLORIDA ARMY
NATIONAL GUARD TECHNICIANS IN THE STATE EXCLUDING, AMONG OTHERS,
ARMY-AVIATION TECHNICIANS ASSIGNED TO ANY ARMY-AVIATION INSTALLATION WHO
WERE ALREADY REPRESENTED ON AN EXCLUSIVE BASIS.
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU,
FLORIDA ARMY NATIONAL GUARD /1/
AND
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R5-120
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3167
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU,
FLORIDA AIR NATIONAL GUARD, 125TH FIGHTER GROUP
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R5-91
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER SEYMOUR X. ALSHER.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING BRIEFS FILED BY THE
PETITIONERS AND THE INTERVENOR, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 42-1244, PETITIONER NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R5-120, HEREIN CALLED NAGE LOCAL R5-120,
SEEKS AN ELECTION IN A UNIT OF WAGE BOARD AND GENERAL SCHEDULE
TECHNICIANS OF THE FLORIDA ARMY NATIONAL GUARD, EXCLUDING, AMONG OTHERS,
THE ARMY AVIATION FACILITY AT JACKSONVILLE, FLORIDA. AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3167, HEREIN CALLED
AFGE, INTERVENED IN THIS CASE. IN CASE NO. 42-1273, PETITIONER NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-91, HEREIN CALLED NAGE
LOCAL R5-91, SEEKS A UNIT OF ALL WAGE BOARD AND GENERAL SCHEDULE
TECHNICIANS OF THE FLORIDA AIR NATIONAL GUARD. THE ACTIVITY AND THE
AFGE CONTEND THAT NEITHER PETITIONED FOR UNIT IS APPROPRIATE BUT RATHER
THAT THE ONLY APPROPRIATE UNIT IS ONE INCLUDING ALL NATIONAL GUARD
TECHNICIANS IN THE STATE OF FLORIDA.
THE FLORIDA NATIONAL GUARD ACTS AS A MILITARY FORCE WHERE NEEDED FOR
NATIONAL DEFENSE, AND AT OTHER TIMES IS AVAILABLE TO SERVE UNDER THE
STATE'S GOVERNOR TO QUELL CIVIL DISORDERS AND TO ACT IN TIMES OF NATURAL
DISASTER. EXCEPT IN TIME OF CALL-UP FOR ONE OF THESE EMERGENCIES,
REGULAR NATIONAL GUARDSMEN SERVE ONLY ON THE WEEKEND OR IN THE EVENING.
TECHNICIANS, AS REGULAR FULL-TIME CIVILIAN EMPLOYEES, MAINTAIN THE
NATIONAL GUARD FACILITIES AND KEEP THEM IN READINESS ON A DAY-TO-DAY
BASIS.
BOTH THE FLORIDA AIR AND ARMY NATIONAL GUARDS HAVE TECHNICIANS
PROGRAMS. THERE ARE 85 TO 90 NATIONAL GUARD UNITS IN THE STATE IN SOME
50 LOCATIONS. AT LEAST 85 OF THE UNITS HAVE ONE TECHNICIAN OR MORE,
DEPENDING ON THE UNIT'S SIZE, MISSION AND FUNCTION. GENERALLY THERE IS
ONE TECHNICIAN FOR EVERY 50 MILITARY PERSONNEL.
ALL NATIONAL GUARD UNITS IN THE STATE ARE UNDER THE UNIFIED COMMAND
OF THE ADJUTANT GENERAL. HE HAS ULTIMATE CONTROL OVER AND
RESPONSIBILITY FOR THE TECHNICIANS PROGRAM AND REPORTS ON THE PROGRAM TO
THE SECRETARIES OF THE ARMY, THE AIR FORCE, AND THE DEFENSE DEPARTMENT.
THE ADJUTANT GENERAL IS RESPONSIBLE FOR COMPLIANCE WITH STATUTES AND
REGULATIONS CONCERNING ADMINISTRATION OF THE PROGRAM. HE HAS FINAL
AUTHORITY FOR ASSIGNMENT, PROMOTION, DISCIPLINE, OR SEPARATION OF
TECHNICIANS. ALSO, HE ESTABLISHES THE BASIC WORK WEEK, PRESCRIBES HOURS
OF DUTY, IS RESPONSIBLE FOR MAINTAINING A CAREER DEVELOPMENT PROGRAM,
AND HAS ULTIMATE RESPONSIBILITY FOR GRIEVANCES.
ALTHOUGH THE ADJUTANT GENERAL SETS THE BASIC WORK WEEK FOR ALL
TECHNICIANS, BOTH AIR AND ARMY TECHNICIANS OCCASIONALLY WORK ODD SHIFTS.
IN THE CASE OF THE AIR NATIONAL GUARD TECHNICIANS, CHANGES SOMETIMES
ARISE WITH LITTLE NOTICE AS A RESULT OF AIR DEFENSE COMMAND ALERTS.
FURLOUGHS AND LEAVE REQUESTS FOR ALL TECHNICIANS ARE APPROVED BY
IMMEDIATE SUPERVISORS. SIMILARLY, ALTHOUGH THE ADJUTANT GENERAL CAN
HEAR APPEALS OF GRIEVANCES, AND THE SAME GRIEVANCE POLICIES APPLY TO ALL
TECHNICIANS, FOR THE MOST PART THEY ARE HANDLED AT THE LOCAL LEVEL.
HEALTH BENEFITS AND INSURANCE ARE THE SAME FOR ALL TECHNICIANS AND PAY
SCALES WITHIN A GIVEN GEOGRAPHICAL AREA ARE THE SAME FOR THOSE AIR AND
ARMY TECHNICIANS WHO ARE WAGE BOARD EMPLOYEES.
THE ENTIRE AIR NATIONAL GUARD IS ORGANIZED UNDER THE 125TH FIGHTER
GROUP. FOUR OF ITS APPROXIMATELY 186 TECHNICIANS ARE ASSIGNED TO THE
ADJUTANT GENERAL'S HEADQUARTERS, ST. AUGUSTINE, FLORIDA. ALL OTHER AIR
NATIONAL GUARD TECHNICIANS IN THE STATE ARE BASED AT INTERNATIONAL
AIRPORT, JACKSONVILLE, FLORIDA. IT APPEARS THAT THE APPROXIMATELY 344
FLORIDA ARMY NATIONAL GUARD TECHNICIANS ARE LOCATED THROUGHOUT THE STATE
AT VARIOUS INSTALLATIONS. /2/
ALTHOUGH THE RECORD IS NOT CLEAR AS TO WHETHER ARMY AND AIR
TECHNICIANS WORK UNDER THE SAME IMMEDIATE SUPERVISION, /3/ IT DOES
APPEAR THAT WHERE ONLY ONE TECHNICIAN IS ASSIGNED TO A MILITARY UNIT, HE
WORKS UNDER THE MILITARY COMMANDER OF THAT UNIT. WHERE SEVERAL
TECHNICIANS COMPRISE A SHOP, THEY ARE SUPERVISED BY A SHOP FOREMAN AND
SHOP SUPERVISOR, WHO, IN TURN, ARE UNDER THE DIRECTION OF THE STATE
MAINTENANCE OFFICER. PERFORMANCE EVALUATIONS ARE MADE BY IMMEDIATE
SUPERVISORS. A PERSONNEL EVALUATION BOARD REVIEWS THESE REPORTS. THE
BOARD HAS REPRESENTATIVES FROM BOTH THE ARMY AND AIR NATIONAL GUARD.
THE RECORD REVEALS THAT PROMOTION BASED ON THESE REPORTS COULD RESULT IN
ANY ARMY TECHNICIAN OBTAINING A JOB IN AN AIR TECHNICIAN UNIT OR VICE
VERSA, HOWEVER, IT APPEARS THAT THIS IS VERY INFREQUENT.
BASED ON ALL OF THE CIRCUMSTANCES AND NOTING THE FACT THAT NO LABOR
ORGANIZATION IS SEEKING EXCLUSIVE RECOGNITION IN AN OVERALL UNIT OF ARMY
AND AIR NATIONAL GUARD TECHNICIANS, I FIND THAT THE PETITIONED FOR UNITS
ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
WITH RESPECT TO FLORIDA AIR NATIONAL GUARD TECHNICIANS, THE RECORD
REVEALS THAT ALL SUCH EMPLOYEES, WITH THE EXCEPTION OF 4 ASSIGNED TO THE
ADJUTANT GENERAL'S HEADQUARTERS IN ST. AUGUSTINE, FLORIDA, ARE BASED AT
ONE LOCATION. FURTHER, THERE IS GENERALLY NO INTERCHANGE BETWEEN AIR
TECHNICIANS AND ARMY TECHNICIANS, AIR TECHNICIANS RECEIVE SPECIALIZED
TRAINING, AND THE EQUIPMENT MAINTAINED BY AIR TECHNICIANS IS GENERALLY
MORE SOPHISTICATED THAN THAT MAINTAINED BY OTHER TECHNICIANS THROUGHOUT
THE STATE. IN THESE CIRCUMSTANCES, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491:
ALL WAGE BOARD AND GENERAL SCHEDULE FLORIDA AIR NATIONAL GUARD
TECHNICIANS /4/ EXCLUDING ARMY-AVIATION TECHNICIANS AT CRAIG FIELD,
JACKSONVILLE, FLORIDA, FLORIDA ARMY NATIONAL GUARD TECHNICIANS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK OTHER THAN A PURELY CLERICAL
CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE ORDER.
WITH RESPECT TO FLORIDA ARMY NATIONAL GUARD TECHNICIANS, THE EVIDENCE
REVEALS THAT THEY SHARE COMMON TERMS AND CONDITIONS OF EMPLOYMENT AND DO
NOT NORMALLY INTERCHANGE WITH AIR NATIONAL GUARD TECHNICIANS. IN THESE
CIRCUMSTANCES AND NOTING THAT IN TWO PREVIOUS DECISIONS /5/ I HAVE
DETERMINED THAT SIMILAR UNITS INVOLVING ARMY NATIONAL GUARD TECHNICIANS
WERE APPROPRIATE, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491:
ALL WAGE BOARD AND GENERAL SCHEDULE FLORIDA ARMY NATIONAL GUARD
TECHNICIANS EXCLUDING ARMY-AVIATION TECHNICIANS AT CRAIG FIELD,
JACKSONVILLE, FLORIDA, FLORIDA AIR NATIONAL GUARD TECHNICIANS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE ORDER.
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN
THE UNITS FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN 45
DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNITS WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE NOT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE FLORIDA ARMY NATIONAL GUARD TECHNICIANS
SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION BY THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-120, OR BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3167, /6/ OR BY NEITHER. THOSE ELIGIBLE
FLORIDA AIR NATIONAL GUARD TECHNICIANS SHALL VOTE WHETHER OR NOT THEY
DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-91.
DATED, WASHINGTON, D.C.
MAY 11, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THERE ARE ALSO APPROXIMATELY 23 TECHNICIANS WHO ARE ASSIGNED TO
AN ARMY-AVIATION GROUP AT CRAIG FIELD, JACKSONVILLE, FLORIDA. NEITHER
PETITIONER SEEKS THESE EMPLOYEES. THE EVIDENCE REVEALED THAT SINCE
DECEMBER 29, 1969, THESE ARMY-AVIATION TECHNICIANS HAVE BEEN REPRESENTED
BY NAGE LOCAL R5-107 ON AN EXCLUSIVE BASIS.
/3/ THERE WAS TESTIMONY THAT AIR AND ARMY NATIONAL GUARDSMEN MIGHT
WORK TOGETHER IN CIVIL DEFENSE EMERGENCIES. HOWEVER, THE RECORD DOES
NOT INDICATE THE ROLE OF TECHNICIANS IN SUCH AN EVENT.
/4/ AS NOTED ABOVE, THERE ARE 4 AIR NATIONAL GUARD TECHNICIANS
ASSIGNED TO THE ADJUTANT GENERAL'S HEADQUARTERS IN ST. AUGUSTINE,
FLORIDA. NAGE LOCAL R5-91 INDICATED THAT IT DID NOT CONSIDER THESE
EMPLOYEES TO BE INCLUDED IN ITS PETITIONED FOR UNIT. IN VIEW OF THE
STATE-WIDE SCOPE OF THE PETITIONED FOR UNIT, SUCH EMPLOYEES WERE
CONSIDERED TO HAVE A COMMUNITY OF INTEREST WITH OTHER FLORIDA AIR
NATIONAL GUARD TECHNICIANS AND THEREFORE SHALL BE AFFORDED THE
OPPORTUNITY TO VOTE WHETHER OR NOT THEY DESIRE UNION REPRESENTATION.
/5/ SEE PENNSYLVANIA ARMY NATIONAL GUARD, A/SLMR NO. 9 AND MINNESOTA
ARMY NATIONAL GUARD, A/SLMR NO. 14.
/6/ AS THE AFGE'S SHOWING OF INTEREST IS SUFFICIENT TO TREAT IT AS AN
INTERVENOR IN CASE NO. 42-1244, I HAVE DIRECTED THAT ITS NAME BE PLACED
ON THE BALLOT.
1 A/SLMR 36; P. 200; CASE NOS. 40-1971, 40-2004; MAY 10, 1971.
UNITED STATES ARMY SPECIAL SERVICES,
CENTRAL POST FUND,
FORT BENNING, GEORGIA
AND
UNITED STATES ARMY,
BOQ BILLETING FUND,
FORT BENNING, GEORGIA
A/SLMR NO. 36
THE SUBJECT CASE INVOLVED REPRESENTATION PETITIONS FILED BY LOCAL
731, CAFETERIA, SNACK BAR AND POST EXCHANGE EMPLOYEES UNION, AFL-CIO,
AFFILIATED WITH HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS
INTERNATIONAL, (LOCAL 731) AND LOCAL 67, WAREHOUSE, LAUNDERERS,
JANITORS, MEAT PACKERS, FOOD AND FACTORY MOTEL UNION, AFFILIATED WITH
NATIONAL COUNCIL DISTRIBUTIVE WORKERS OF AMERICA, ALA. (LOCAL 67).
LOCAL 731 SOUGHT A UNIT OF NONSUPERVISORY EMPLOYEES EMPLOYED IN THE
BOWLING ALLEYS, SNACK BARS, AND THE BOAT SHOP OF THE CENTRAL POST FUND
AT FORT BENNING. LOCAL 67 PETITIONED FOR A UNIT COMPRISED OF ALL
NONSUPERVISORY CUSTODIAL EMPLOYEES EMPLOYED THROUGHOUT THE ACTIVITIES.
THE ASSISTANT SECRETARY FOUND THAT THE CLAIMED UNITS WERE NOT
APPROPRIATE. IN REACHING THIS DETERMINATION, THE ASSISTANT SECRETARY
NOTED THAT THE UNIT SOUGHT BY LOCAL 731 DID NOT COVER ALL EMPLOYEES OF
THE CENTRAL POST FUND PERFORMING SIMILAR JOB FUNCTIONS AND, AT THE SAME
TIME, INCLUDED EMPLOYEES PERFORMING UNRELATED JOB FUNCTIONS. THE
ASSISTANT SECRETARY FOUND THAT SUCH A UNIT WAS NOT APPROPRIATE AS THE
EMPLOYEES SOUGHT DID NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST AND ITS ESTABLISHMENT WOULD NOT PROMOTE EFFECTIVE DEALINGS OR
EFFICIENCY OF AGENCY OPERATIONS.
WITH RESPECT TO THE UNIT SOUGHT BY LOCAL 67, THE ASSISTANT SECRETARY
NOTED THAT THE EVIDENCE REVEALED THAT THE EMPLOYEES COVERED BY THE
PETITION DID NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST IN
THAT THEY COMPETED WITH OTHER EMPLOYEES OF THE ACTIVITIES IN THE SAME
OVERALL JOB CATEGORY FOR MERIT PROMOTIONS; THEIR TERMS AND CONDITIONS
OF EMPLOYMENT WERE SIMILAR TO OTHER EMPLOYEES WHO WERE NOT COVERED BY
THE PETITION; AND, MANY OF THE PETITIONED FOR EMPLOYEES PERFORMED THEIR
JOB FUNCTIONS IN THE SAME AREAS AS THESE OTHER EMPLOYEES.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE PETITIONS FILED
BY LOCAL 731 AND LOCAL 67 BE DISMISSED.
UNITED STATES ARMY SPECIAL SERVICES,
CENTRAL POST FUND, FORT BENNING, GEORGIA
AND
LOCAL 731, CAFETERIA, SNACK BAR AND POST
EXCHANGE EMPLOYEES UNION, AFL-CIO,
AFFILIATED WITH HOTEL AND RESTAURANT EMPLOYEES
AND BARTENDERS INTERNATIONAL /1/
UNITED STATES ARMY, BOQ BILLETING
FUND, FORT BENNING, GEORGIA
AND
LOCAL 67, WAREHOUSE, LAUNDERERS, JANITORS,
MEAT PACKERS, FOOD AND FACTORY MOTEL UNIONS, ,4 AFFILIATED WITH
NATIONAL COUNCIL DISTRIBUTIVE
WORKERS OF AMERICA, ALA. /2/
AND
LOCAL 1051, LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, AFL-CIO
AND
LOCAL 54, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO /3/
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER SEYMOUR X. ALSHER.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITIES.
2. IN CASE NO. 40-1971, PETITIONER, LOCAL 731, CAFETERIA, SNACK BAR
AND POST EXCHANGE EMPLOYEES UNION, AFL-CIO, AFFILIATED WITH HOTEL AND
RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL, HEREIN CALLED LOCAL
731, SEEKS AN ELECTION IN A UNIT OF ALL REGULAR FULL-TIME AND REGULAR
PART-TIME EMPLOYEES OF THE CENTRAL POST FUND'S BOWLING ALLEYS, SNACK
BARS, AND BOAT SHOP, EXCLUDING CASUAL OR INTERMITTENT EMPLOYEES, /4/
MANAGERS, ASSISTANT MANAGERS, AND ALL OTHER SUPERVISORY EMPLOYEES,
OFFICE CLERICAL EMPLOYEES, PROFESSIONAL EMPLOYEES, AND GUARDS AS DEFINED
IN THE EXECUTIVE ORDER. /5/
IN CASE NO. 40-2004, PETITIONER, LOCAL 67, WAREHOUSE, LAUNDERERS,
JANITORS, MEAT PACKERS, FOOD AND FACTORY MOTEL UNION, AFFILIATED WITH
NATIONAL COUNCIL DISTRIBUTIVE WORKERS OF AMERICA, ALA., HEREIN CALLED
LOCAL 67, SEEKS AN ELECTION IN A UNIT OF ALL THE BOQ BILLETING FUND'S
MAIDS AND JANITORIAL EMPLOYEES. /6/
THE ACTIVITIES' POSITION IS THAT THE APPROPRIATE UNIT IS ONE
CONSISTING OF ALL NONSUPERVISORY AND NONMANAGERIAL EMPLOYEES EMPLOYED IN
THE NONAPPROPRIATED FUNDS' PROJECTS AT FORT BENNING, EXCLUDING
INTERMITTENT AND CASUAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND GUARDS AND
SUPERVISORS WITHIN THE MEANING OF THE EXECUTIVE ORDER. /7/ INTERVENOR,
LOCAL 1051, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO,
HEREIN CALLED LABORERS, ASSERTS THAT THE APPROPRIATE UNIT SHOULD CONSIST
OF ALL "BLUE COLLAR" EMPLOYEES AT FORT BENNING. INTERVENOR LOCAL 54,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, HEREIN CALLED
AFGE, IS OF THE VIEW THAT THE APPROPRIATE UNIT SHOULD CONSIST OF ALL OF
FORT BENNING'S NONAPPROPRIATED FUND EMPLOYEES.
THE MISSION OF THE ACTIVITIES IS TO PROVIDE FACILITIES WHICH
CONTRIBUTE TO THE MORALS, WELFARE AND RECREATION OF THE MILITARY
PERSONNEL OF THE UNITED STATES ARMY. /8/ NONAPPROPRIATED FUNDS AND
RELATED ACTIVITIES AND PERSONNEL POLICIES AND PROCEDURES WITH REGARD
THERETO ARE GOVERNED BY REGULATIONS ISSUED BY THE UNITED STATES ARMY.
ALL PERSONNEL MATTERS FOR ALL OF THE FUNDS AT FORT BENNING ARE HANDLED
BY THE CIVILIAN PERSONNEL OFFICE, WHICH HAS THE AUTHORITY AND DUTY TO
IMPLEMENT THE REGULATIONS REFERRED TO ABOVE. EMPLOYEES COVERED BY BOTH
PETITIONS ARE CLASSIFIED AS NONAPPROPRIATED FUND EMPLOYEES EMPLOYED AT
THE CENTRAL POST FUND AND THE BOQ BILLETING FUND AND THEY COME WITHIN
TWO CLASSIFICATIONS DESCRIBED IN THE ABOVE-MENTIONED REGULATIONS AS
"CATEGORY A" AND "CATEGORY B." THOSE EMPLOYEES WITHIN THE CLASSIFICATION
OF "CATEGORY A" ARE ENGAGED IN THE PERFORMANCE OF PROFESSIONAL,
ADMINISTRATIVE, FISCAL OR CLERICAL WORK INCLUDING STENOGRAPHY AND
TYPING. THOSE EMPLOYEES WHO ARE ENGAGED IN THE PERFORMANCE OF MANUAL
LABOR, INCLUDING THOSE IN A RECOGNIZED TRADE OR CRAFT, COME WITHIN THE
CLASSIFICATION OF "CATEGORY B." /9/
THE EMPLOYEES OF THE VARIOUS NONAPPROPRIATED FUNDS AT FORT BENNING
ARE EMPLOYED UNDER UNIFORM PAY SCALES; COMPETE FOR VACANCIES AND
PROMOTIONAL OPPORTUNITIES UNDER THE SAME MERIT PROMOTION PLAN; MAY BE
PROMOTED ACROSS ORGANIZATIONAL LINES; ALL ARE RETAINED ON THE SAME
RETENTION REGISTERS FOR THE PURPOSE OF REDUCTION IN FORCE; AND ARE
GOVERNED BY THE SAME REGULATIONS.
THE RECORD INDICATES THAT EACH NONAPPROPRIATED FUND PROGRAM IS HEADED
BY A SUPERVISOR WHO HAS THE DAY-TO-DAY SUPERVISION OVER EMPLOYEES WITHIN
THAT PROGRAM. HE EVALUATES THE PERFORMANCE OF THE EMPLOYEES AND GRANTS
STEP INCREASES. FURTHER, ALL APPLICANTS REFERRED TO HIM FOR JOBS ARE
INTERVIEWED BY THE SUPERVISOR. HE ALSO GRANTS LEAVE REQUESTS, AND ANY
GRIEVANCE IS FIRST PRESENTED TO HIM FOR POSSIBLE SOLUTION. THE
RECOMMENDATIONS OF SUCH SUPERVISORS, HOWEVER, WITH REGARD TO HIRING AND
FIRING OF EMPLOYEES ARE SUBMITTED TO THE CIVILIAN PERSONNEL OFFICE WHICH
HAS THE RESPONSIBILITY FOR FINAL APPROVAL.
THE EVIDENCE DEMONSTRATES THAT THE EMPLOYEES SOUGHT TO BE REPRESENTED
BY THE LOCAL 731 PERFORM VARIED DUTIES. THESE INCLUDE THE SALE AND
MAINTENANCE OF EQUIPMENT USED BY BOWLERS; THE MAINTENANCE OF THE LANES
IN THE BOWLING ALLEYS AND OTHER FUNCTIONS CONNECTED WITH THE SPORT OF
BOWLING. OTHER EMPLOYEES IN THE CLAIMED UNIT WORK IN THE SNACK BARS OF
THE CENTRAL POST FUND'S BOWLING ALLEYS AND ITS GOLF CLUB, AS COOKS,
COUNTER-ATTENDANTS, BARTENDERS, WAITERS, WAITRESSES, FOOD SERVICE
HELPERS AND PORTERS. /10/
THE RECORD DISCLOSES THAT ALTHOUGH OTHER TYPES OF EMPLOYEES ENGAGED
IN FOOD SERVICES SUCH AS COOKS, WAITRESSES, AND BARTENDERS ARE EMPLOYED
IN THE NONCOMMISSIONED OFFICERS' OPEN MESS AND OTHER FACILITIES OF THE
CENTRAL POST FUND, THESE EMPLOYEES HAVE NOT BEEN INCLUDED IN LOCAL 731'S
REQUESTED UNIT. IT ALSO APPEARS FROM THE RECORD THAT AMONG THE
EMPLOYEES COVERED BY LOCAL 731'S PETITION ARE THOSE EMPLOYED AS CASHIERS
AT THE BOWLING ALLEYS. ALTHOUGH THE RECORD REVEALS THAT LOCAL 731 SEEKS
TO EXCLUDE OTHER TYPES OF ADMINISTRATIVE PERSONNEL, SUCH AS OFFICE
CLERICALS, THE RECORD INDICATES THAT SOME OF THE CASHIERS EMPLOYED AT
THE BOWLING ALLEYS COVERED BY LOCAL 731'S PETITION WORK AT DESKS,
RECEIVE MONIES, AND ACCOUNT FOR FUNDS. /11/
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY LOCAL 731 IS
NOT APPROPRIATE. THE EVIDENCE REVEALS THAT LOCAL 731'S PETITION DOES
NOT COVER ALL EMPLOYEES OF THE CENTRAL POST FUND PERFORMING SIMILAR JOB
FUNCTIONS. THUS, AS NOTED ABOVE, ALTHOUGH THE PETITION INCLUDES COOKS,
COUNTER-ATTENDANTS, BARTENDERS, AND OTHER FOOD SERVICE EMPLOYEES IN THE
SNACK BAR OF THE CENTRAL POST FUND'S BOWLING ALLEYS AND ITS GOLF CLUB,
IT DOES NOT INCLUDE COOKS, WAITRESSES AND BARTENDERS EMPLOYED IN THE
NONCOMMISSIONED OFFICERS' OPEN MESS AND OTHER FACILITIES OF THE CENTRAL
POST FUND. IN THESE CIRCUMSTANCES, I FIND THE UNIT SOUGHT BY LOCAL 731
IS INAPPROPRIATE BECAUSE IT DOES NOT INCLUDE ALL EMPLOYEES PETITIONED
FOR EMPLOYEES DO NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST; NOR WOULD SUCH A UNIT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I SHALL ORDER THAT LOCAL
731'S PETITION BE DISMISSED.
WITH RESPECT TO THE UNIT SOUGHT BY LOCAL 67 WHICH INCLUDED CUSTODIAL
EMPLOYEES IN ALL OF THE NONAPPROPRIATED FUNDS AT FORT BENNING,
COMPRISING APPROXIMATELY 170 EMPLOYEES, THE RECORD INDICATES THAT THE
CLASSIFICATIONS COVERED ARE JANITORS, MAIDS, PORTERS AND EMPLOYEES WHO
TEND THE LAWNS. THE RECORD REVEALS THAT THESE EMPLOYEES ARE AMONG THOSE
WITHIN THE CLASSIFICATION DEFINED BY THE ACTIVITIES AS "CATEGORY B."
/12/ THE EVIDENCE ALSO ESTABLISHES THAT ALL "CATEGORY B" EMPLOYEES
INCLUDING THOSE SOUGHT BY LOCAL 67'S PETITION, COMPETE TOGETHER FOR
MERIT PROMOTIONS; THEIR WORKING CONDITIONS, IN MOST CASES, ARE THE
SAME, THEIR JOBS ARE RATED ACCORDING TO THE SAME STANDARDS; AND,
ALTHOUGH THEY MAY BE ATTACHED TO SEPARATE FACILITIES, MANY WORK IN THE
SAME AREAS. IN THESE CIRCUMSTANCES, I FIND THAT SEPARATING CUSTODIAL
EMPLOYEES FROM OTHER "CATEGORY B" EMPLOYEES WHO HAVE SIMILAR TERMS AND
CONDITIONS OF EMPLOYMENT AND WHO PERFORM THEIR JOB FUNCTIONS IN THE SAME
WORK AREAS, WOULD EFFECTUATE AN ARTIFICIAL DIVISION AMONG EMPLOYEES WHO
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND WOULD RESULT IN
A FRAGMENTED UNIT WHICH WOULD NOT PROMOTE EFFECTIVE DEALINGS OR
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I SHALL ORDER THAT LOCAL
67'S PETITION ALSO BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITIONS IN CASE NOS. 40-1971 AND
40-2004 BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
MAY 10, 1971
/1/ THE NAME OF THIS PETITIONER APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THIS PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ THE NAME OF BOTH INTERVENORS APPEARS AS AMENDED AT THE HEARING.
/4/ WITH RESPECT TO THE CASUAL OR INTERMITTENT CATEGORIES, THE RECORD
ESTABLISHES THAT SUCH EMPLOYEES ARE EMPLOYED ON AN EMERGENCY BASIS AND
HAVE NO REASONABLE EXPECTANCY OF REGULAR EMPLOYMENT. ALL THE PARTIES
AGREE THAT THESE EMPLOYEES SHOULD BE EXCLUDED FROM THE UNITS SOUGHT.
THE RECORD FURTHER INDICATES THAT OFF-DUTY MILITARY PERSONNEL ARE
EMPLOYED SOLELY AS INTERMITTENT OR CASUAL EMPLOYEES AND THE PARTIES, ON
THAT BASIS, DESIRE THEIR EXCLUSION FROM THE PROPOSED UNITS. IN THESE
CIRCUMSTANCES, IT APPEARS THAT THE EXCLUSION OF EMPLOYEES CLASSIFIED AS
EITHER INTERMITTENT OR CASUAL FROM THE PETITIONED FOR UNIT IS
UNWARRANTED.
/5/ THE UNIT APPEARS AS AMENDED AT THE HEARING. EMPLOYEES INCLUDED
IN THIS UNIT ARE, AMONG OTHERS, A RECREATIONAL AIDE, BOWLING AND
EQUIPMENT MECHANICS, LANE MAINTENANCE EMPLOYEES, COOKS, BARTENDERS,
WAITERS AND WAITRESSES, CASHIERS, FOOD SERVICE HELPERS AND BOWLING ALLEY
PORTERS.
/6/ THE UNIT APPEARS AS AMENDED AT THE HEARING. AT THE OUTSET OF THE
HEARING LOCAL 731 AND LOCAL 67 EXPRESSED NO INTEREST IN THE EMPLOYEES
INCLUDED IN EACH OTHER'S UNIT AND EXCLUDED THEM FROM THEIR OWN
PETITIONED FOR UNITS. HOWEVER, DURING THE HEARING, LOCAL 67 REQUESTED
THE INCLUSION OF ALL CUSTODIAL EMPLOYEES EMPLOYED AT THE ACTIVITY
INCLUDING THOSE EMPLOYED IN THE BOWLING ALLEYS AND SNACK BARS.
/7/ IN THE ALTERNATIVE, THE ACTIVITIES TOOK THE POSITION THAT THE
FOLLOWING UNITS WOULD ALSO BE APPROPRIATE:
(1) A UNIT CONSISTING OF EITHER ALL NONSUPERVISORY EMPLOYEES ENGAGED
IN "WHITE COLLAR" DUTIES, I.E., FISCAL, CLERICAL OR ADMINISTRATIVE, OR
ONE COMPOSED OF "BLUE COLLAR" EMPLOYEES, I.E., THOSE ENGAGED IN A
RECOGNIZED TRADE OR CRAFT; OR,
(2) A UNIT CONSISTING OF EMPLOYEES ENGAGED IN SIMILAR FUNCTIONAL
SKILLS.
/8/ IN THIS REGARD, THERE ARE, AMONG OTHERS, SUCH FACILITIES AS THE
FORT BENNING FLYING CLUB, THE PARACHUTE CLUB, AND THE ROD AND GUN CLUB.
/9/ SUCH POSITIONS INCLUDE, BUT ARE NOT LIMITED TO, WAITERS,
WAITRESSES, BARTENDERS, JANITORS, PORTERS, WAREHOUSE AND MECHANICAL AND
MAINTENANCE EMPLOYEES.
/10/ THE RECORD IS SILENT WITH REGARD TO THE TYPES OF EMPLOYEES
EMPLOYED AT THE BOAT SHOP.
/11/ IT IS NOT CLEAR FROM THE RECORD WHETHER CASHIERS ARE INCLUDED
WITHIN "CATEGORY A" OR "CATEGORY B" UNDER THE ACTIVITIES' CLASSIFICATION
SYSTEM. IT APPEARS, HOWEVER, THAT BASED ON THEIR ADMINISTRATIVE DUTIES,
SOME OF THESE EMPLOYEES WOULD BE CONSIDERED TO BE "CATEGORY A"
EMPLOYEES.
/12/ ALSO WITHIN THIS CATEGORY ARE EMPLOYEES ENGAGED IN MECHANICAL
AND MAINTENANCE, WAREHOUSING, FOOD AND DRINK SERVICES AND MISCELLANEOUS
RELATED FUNCTIONS.
1 A/SLMR 35; P. 195; CASE NOS. 53-2972, 53-2975, 53-2983, 53-3094;
MAY 10, 1971.
FIRST U.S. ARMY, 83RD ARMY RESERVE
COMMAND (ARCOM), U.S. ARMY SUPPORT
FACILITY (FORT HAYES), COLUMBUS, OHIO
A/SLMR NO. 35
THIS CASE INVOLVED FOUR REPRESENTATION PETITIONS. LOCAL 142,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE) SOUGHT A UNIT OF U.S.
ARMY RESERVE TECHNICIANS EMPLOYED IN 10 OHIO COUNTIES; LOCAL 3158;
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE LOCAL 3158) SOUGHT A
UNIT OF U.S. ARMY RESERVE TECHNICIANS EMPLOYED BY THE ACTIVITY IN 35
COUNTIES IN CENTRAL OHIO; A COUNCIL MADE UP OF THREE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES LOCALS (AFGE COUNCIL) SOUGHT AN
ACTIVITY-WIDE UNIT OF ALL EMPLOYEES; AND LOCAL 3175, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES (AFGE LOCAL 3175) SOUGHT A UNIT
COVERING EMPLOYEES IN THE AREA ORGANIZATIONAL MAINTENANCE SHOP AND THE
ARMY RESERVE TECHNICIANS IN THE COLONEL THOMAS HENRY MORROW CENTER IN
CINCINNATI, OHIO.
THE ASSISTANT SECRETARY FOUND THAT THE UNITS SOUGHT BY THE NFFE, AFGE
LOCAL 3158 AND AFGE LOCAL 3175 WERE NOT APPROPRIATE AND THAT THE UNIT
SOUGHT BY THE AFGE COUNCIL WAS APPROPRIATE. HE NOTED THAT IN EACH CASE
WHERE THE UNIT WAS FOUND TO BE INAPPROPRIATE THE EVIDENCE ESTABLISHED
THAT IT DID NOT CONTAIN TECHNICIANS WHO SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND APART FROM OTHER TECHNICIANS OF THE
ACTIVITY. IN THIS RESPECT, HE NOTED THAT THERE IS FREQUENT TRANSFER OF
TECHNICIANS BETWEEN THE VARIOUS INSTALLATIONS WITHIN THE ACTIVITY; THAT
ABOVE THE LOWEST ENTRANCE GRADE JOB VACANCIES ARE AVAILABLE ON AN
ACTIVITY-WIDE BASIS; THAT THERE IS CENTRALIZED CONTROL OF POLICY MAKING
WHICH RESULTS IS UNIFORM PERSONNEL PRACTICES THROUGHOUT THE ACTIVITY
INCLUDING PROMOTION PROGRESS AND GRIEVANCE PROCEDURES; AND THAT
EMPLOYEES THROUGHOUT THE ACTIVITY ARE ENGAGED IN SIMILAR JOB FUNCTIONS
IN THEIR RESPECTIVE CLASSIFICATIONS AND HAVE SIMILAR TERMS AND
CONDITIONS OF EMPLOYMENT.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
UNITS SOUGHT ON A LESS THAN ACTIVITY-WIDE BASIS DID NOT CONTAIN
TECHNICIANS WHO SHARED A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AND THAT SUCH UNITS WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF AGENCY OPERATIONS. HE THEREFORE DIRECTED THAT THOSE PETITIONS BE
DISMISSED. ON THE OTHER HAND, BASED ON THE ABOVE CIRCUMSTANCES, HE
FOUND THE ACTIVITY-WIDE UNIT SOUGHT BY THE AFGE COUNCIL CONSTITUTED AN
APPROPRIATE UNIT AND, ACCORDINGLY, THE ASSISTANT SECRETARY DIRECTED THAT
AN ELECTION BE HELD IN THAT UNIT.
FIRST U.S. ARMY, 83RD ARMY RESERVE
COMMAND (ARCOM), U.S. ARMY SUPPORT
FACILITY (FORT HAYES), COLUMBUS, OHIO
AND
LOCAL 142, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
FIRST U.S. ARMY, 83RD ARMY RESERVE
COMMAND (ARCOM), U.S. ARMY SUPPORT
FACILITY (FORT HAYES), COLUMBUS, OHIO
AND
ARMY RESERVE TECHNICIANS (GS) LOCAL 3158,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
FIRST U.S. ARMY 83RD ARMY RESERVE
COMMAND (ARCOM), U.S. ARMY SUPPORT
FACILITY (FORT HAYES), COLUMBUS, OHIO
AND
COUNCIL OF LOCAL FOR 83RD ARCOM,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCALS 2106, 2932
AND 2984
FIRST U.S. ARMY 83RD ARMY RESERVE
COMMAND (ARCOM), U.S. ARMY SUPPORT
FACILITY (FORT HAYES), COLUMBUS, OHIO
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3175
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER R. C. DEMARCO. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING BRIEFS FILED BY THE
ACTIVITY AND LOCAL 142, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN
CALLED NFFE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 53-2972, THE PETITIONER, NFFE, SEEKS TO REPRESENT A
UNIT OF ALL U.S. ARMY RESERVE TECHNICIANS EMPLOYED IN THE COUNTIES OF
WILLIAMS, DEFIANCE, FULTON, HENRY, LUCAS, WOOD, OTTAWA, SANDUSKY, ERIE
AND SENECA IN THE STATE OF OHIO. IN CASE NO. 53-2975, ARMY RESERVE
TECHNICIANS (GS) LOCAL 3158, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, HEREIN CALLED AFGE LOCAL 3158, PETITIONED FOR AN ELECTION IN
A UNIT OF ALL NONSUPERVISORY ARMY RESERVE TECHNICIANS (GS) AND
ORGANIZATIONAL MAINTENANCE SHOP EMPLOYEES (WB) EMPLOYED BY THE 83RD ARMY
RESERVE COMMAND IN 35 COUNTIES IN CENTRAL OHIO. THE PETITION IN CASE
NO. 53-2983 FILED BY THE COUNCIL OF LOCALS FOR 83RD ARMCO, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCALS 2106, 2932 AND 2984,
HEREIN CALLED THE AFGE COUNCIL, SEEKS AN ELECTION IN A UNIT COMPRISED OF
ALL GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES IN THE FIRST U.S. ARMY,
83RD ARCOM IN THE STATES OF OHIO AND KENTUCKY. IN CASE NO. 53-3094, THE
PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3175, HEREIN CALLED AFGE LOCAL 3175, /1/ SEEKS A UNIT COVERING ALL
EMPLOYEES IN THE AREA ORGANIZATIONAL MAINTENANCE SHOP AND THE ARMY
RESERVE TECHNICIANS IN THE COLONEL THOMAS HENRY MORROW CENTER IN
CINCINNATI, OHIO.
THE ACTIVITY CONTENDS THAT THE ONLY APPROPRIATE UNIT IS THE ONE THAT
COVERS THE ENTIRE 83RD ARCOM BECAUSE IT MEETS THE CRITERIA OF COMMUNITY
OF INTEREST AMONG THE EMPLOYEES INVOLVED AND WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IT FURTHER CONTENDS THAT
THE UNITS PROPOSED BY THE NFFE AND AFGE LOCALS 3158 AND 3175 ARE
INAPPROPRIATE BECAUSE THEY DO NOT MEET THE ABOVE-MENTIONED TESTS AND, IN
ADDITION, ARE DEFINED BY ARBITRARY BOUNDARIES WHICH ARE CONTROLLED BY
THE EXTENT TO WHICH EMPLOYEES IN THESE PROPOSED UNITS HAVE BEEN
ORGANIZED. THE AFGE COUNCIL CONCURS IN THE ACTIVITY POSITION. /2/ THE
NFFE CONTENDS THAT ITS PROPOSED UNIT COVERING 10 OHIO COUNTIES IS
APPROPRIATE.
THE 83RD ARMY RESERVE COMMAND (ARCOM) IS ONE OF 16 MAJOR U.S. ARMY
RESERVE COMMAND UNITS IN THE FIRST UNITED STATES ARMY, WHICH HAS ITS
HEADQUARTERS IN FORT GEORGE C. MEADE, MARYLAND. THE GEOGRAPHICAL AREA
COVERED BY THE 83RD ARCOM INCLUDES ALL OF OHIO, WITH THE EXCEPTION OF A
FEW COUNTIES ON THE STATE'S NORTHEASTERN BORDER, AND A PART OF KENTUCKY.
ITS HEADQUARTERS, FROM WHICH THE COMMANDING OFFICER EXERCISES
ADMINISTRATIVE CONTROL OF ALL THE UNITS ATTACHED TO HIS COMMAND AND
SUPERVISES ALL ITS ACTIVITIES, IS LOCATED IN COLUMBUS, OHIO.
IN REGARD TO THE ACTIVITY'S HISTORY OF BARGAINING, THE RECORD
DISCLOSES THAT IN 1964, XX U.S. ARMY CORPS, THE PREDECESSOR OF THE 83RD
ARCOM, GRANTED EXCLUSIVE RECOGNITION TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2106 AS THE BARGAINING
REPRESENTATIVE IN A UNIT OF ARMY RESERVE TECHNICIANS EMPLOYED IN THE
COUNTIES OF COLUMBIANA, MAHONING, MEDINA, PORTAGE, STARK, SUMMIT,
TRUMBULL AND TUSCARAWAS IN THE NORTHEASTERN PART OF OHIO. /3/ THE
CURRENT AGREEMENT COVERING THIS UNIT WAS NEGOTIATED BETWEEN THE SENIOR
ARMY ADVISORS OF THE U.S. ARMY ADVISOR GROUPS AT FORT HAYES, COLUMBUS,
OHIO AND OAKDALE, PENNSYLVANIA, AND AFGE LOCAL 2106. THIS CONTRACT WAS
APPROVED BY THE ACTIVITY ON JULY 11, 1969, AND WAS MADE EFFECTIVE FROM
THAT DATE TO JULY 10, 1971.
ALSO, ON FEBRUARY 24, 1969, THE ACTIVITY ACCORDED FORMAL RECOGNITION
TO THE NFFE AS THE BARGAINING REPRESENTATIVE FOR ALL ARMY RESERVE
TECHNICIANS EMPLOYED IN THE COUNTIES OF LUCAS AND WILLIAMS IN THE
NORTHWESTERN PART OF OHIO. /4/ IN ADDITION, ON MARCH 17, 1969, AFGE
LOCAL 2932 /5/ WAS GRANTED EXCLUSIVE RECOGNITION AS THE BARGAINING
REPRESENTATIVE OF ALL ARMY RESERVE TECHNICIANS SERVING THE 83RD ARCOM
AND 100TH DIVISION (TRAINING) IN EASTERN KENTUCKY. NO CONTRACT EVER WAS
CONSUMMATED IN THAT UNIT.
THERE IS NO DISPUTE AMONG THE PARTIES AS TO THE TYPES OF EMPLOYEES
COVERED BY VARIOUS PETITIONS INASMUCH AS ALL WOULD INCLUDE, IN THEIR
RESPECTIVE UNITS, BOTH THE GENERAL SCHEDULE AND WAGE BOARD TECHNICIANS.
THE GENERAL SCHEDULE TECHNICIANS' CLASSIFICATIONS ARE: STAFF
ADMINISTRATIVE ASSISTANT; STAFF ADMINISTRATIVE SPECIALIST; STAFF
TRAINING ASSISTANT; MAINTENANCE ADMINISTRATIVE TECHNICIANS'
ADMINISTRATIVE SUPPLY TECHNICIAN; AND SUPPLY CLERK. THESE EMPLOYEES
ARE ENGAGED IN A VARIETY OF FUNCTIONS INCLUDING, AMONG OTHERS, THE
PERFORMANCE OF ADMINISTRATIVE, TRAINING, CLERICAL AND SUPPLY DUTIES;
THE MAINTENANCE OF RECORDS; THE PREPARATION OF SPECIAL TABLES, GRAPHS
AND CHARTS; THE POSTING OF INFORMATION ON OFFICE RECORDS; THE CONTROL,
EDITING AND DISPATCH OF STATUS REPORTS PERTAINING TO MATERIALS AND
EQUIPMENT; AND THE INSTRUCTION OF RESERVE PERSONNEL ON MAINTENANCE AND
SUPPLY PROCEDURES.
THE WAGE BOARD TECHNICIANS' CLASSIFICATIONS ARE: ELECTRONIC
EQUIPMENT INSTALLER AND REPAIRER; ELECTRONIC EQUIPMENT MECHANIC;
MOBILE EQUIPMENT MECHANIC; AND SMALL ARMS REPAIRER. ALL PERFORM THE
KIND OF MAINTENANCE AND REPAIR WORK AS IMPLIED BY THEIR RESPECTIVE
TITLES, AND WHERE THE SITUATION JUSTIFIES IT, THEY ARE SUPERVISED BY A
SHOP FOREMAN.
ALL GENERAL SCHEDULE AND WAGE BOARD TECHNICIANS ARE REQUIRED TO BE
MEMBERS OF THE ACTIVE ARMY RESERVE AND ARE EMPLOYED FOR THE PURPOSE OF
CARRYING OUT THE ADMINISTRATIVE, SUPPLY AND EQUIPMENT MAINTENANCE
FUNCTIONS AND THE MISSION OF THE VARIOUS MILITARY UNIT COMMANDERS.
ALL AUTHORITY OVER THE TECHNICIANS HAS BEEN DELEGATED TO THE
COMMANDER OF THE 83RD ARCOM, WHO IS EMPOWERED TO DETERMINE AND
EFFECTUATE POLICY IN REGARD TO SUCH MATTERS AS HIRE, DISCHARGE,
PROMOTION, GRADE, JOB DISCIPLINE AND SEPARATION OF THE TECHNICIANS.
THIS AUTHORITY, IN TURN, HAS BEEN DELEGATED TOA CIVILIAN PERSONNEL
OFFICER FOR THE 83RD ARCOM, WHOSE HEADQUARTERS IS IN FORT HAYES,
COLUMBUS, OHIO.
THE LOCAL MILITARY COMMANDERS ARE THE FIRST LINE OR IMMEDIATE
SUPERVISORS OF THE TECHNICIANS AND, IN THAT REGARD, THEY DIRECT THEIR
DAY-TO-DAY ACTIVITIES, APPROVE LEAVE, MAKE PERFORMANCE APPRAISALS AND
CIVILIAN PERSONNEL OFFICER. HOWEVER, THEY CANNOT CHANGE THE JOB
CLASSIFICATIONS OR THE DUTIES OF THE VARIOUS POSITIONS NOR PROMULGATE
POLICY WITH RESPECT TO THE CIVILIAN PERSONNEL OR TECHNICIANS.
ALL RECOMMENDATIONS BY THE LOCAL COMMANDERS ARE INVESTIGATED BY THE
CIVIL PERSONNEL OFFICE TO DETERMINE WHETHER ACTION IS WARRANTED. IF,
FOR EXAMPLE, A VACANCY OCCURS IN A TECHNICIAN'S POSITION, THE UNIT
COMMANDER MAKES A FORMAL REQUEST FOR A REPLACEMENT, AND THE CIVILIAN
PERSONNEL OFFICER'S STAFF INITIATES THE PROCESS OF FILLING IT. IF THE
VACANCY IS IN A POSITION ABOVE THE LOWEST ENTRANCE GRADE, THE JOB IS
POSTED THROUGHOUT THE ENTIRE 83RD ARCOM, AND ALL TECHNICIANS ARE GIVEN
THE FIRST OPPORTUNITY TO APPLY. BECAUSE OF THIS POLICY, TECHNICIANS
TRANSFER FREQUENTLY FROM ONE INSTALLATION TO ANOTHER THROUGHOUT THE 83RD
ARCOM.
THE RECORD ALSO DISCLOSES THAT THERE IS UNIFORMITY IN THE GRIEVANCE
PROCEDURE FOR THE ENTIRE COMMAND, IN RECRUITING AND REPLACEMENT
FUNCTIONS, AND IN PROMOTION POLICY SINCE CANDIDATES FOR POSITIONS ARE
SOLICITED THROUGHOUT THE ARCOM. WITH RESPECT TO PROMOTION, THE LOCAL
UNIT COMMANDER IS GIVEN AN OPPORTUNITY TO SELECT THE TECHNICIAN FOR THE
POSITION FROM AMONG THE ELIGIBLES DESIGNATED BY THE CIVILIAN PERSONNEL
OFFICER. AS TO GRIEVANCES, LOCAL UNIT COMMANDERS ACT AS THE FIRST STEP
OF THE GRIEVANCE PROCEDURE.
THE BASIC HOURS AND WORK DAYS ARE ESTABLISHED BY THE ARCOM COMMANDER,
BUT THE LOCAL UNIT COMMANDER CAN VARY THE SCHEDULES AS THE SITUATION
WARRANTS. HOWEVER, THE COMMANDER CANNOT GRANT OVERTIME WITHOUT EXPRESS
AUTHORIZATION FROM THE ARCOM COMMANDER. THE GENERAL SCHEDULE
TECHNICIANS ARE PAID AN ANNUAL SALARY, WHICH IS SET BY LAW AND THEREFORE
CANNOT BE VARIED, BUT THE WAGE BOARD TECHNICIANS' WAGES ARE DETERMINED
BY LOCAL SURVEYS.
REDUCTION IN FORCE PROCEDURES ARE ESTABLISHED BY THE CIVIL SERVICE
COMMISSION, BUT THE ACTIVITY DETERMINES THE AREAS OF CONSIDERATION.
LOCAL UNIT COMMANDERS HAVE NO ROLE IN REDUCTION IN FORCE ACTIONS.
ALTHOUGH THE PARTIES AGREE ON THE COMPOSITION OF THE APPROPRIATE
UNIT, THEY ARE NOT IN ACCORD AS TO ITS SCOPE. AS NOTED PREVIOUSLY, THE
ACTIVITY, THE AFGE COUNCIL AND AFGE LOCAL 3158 CONTEND THAT ALL THE
GENERAL SCHEDULE AND WAGE BOARD TECHNICIANS OF THE ENTIRE 83RD ARCOM
COMPRISE AN APPROPRIATE UNIT, WHEREAS THE NFFE CONTENDS THAT ITS
PETITIONED UNIT COVERING ARMY TECHNICIANS IN TEN OHIO COUNTIES IS
APPROPRIATE. /6/
WITH RESPECT TO THE UNIT SOUGHT BY THE NFFE, THE EVIDENCE ESTABLISHED
THAT ITS PROPOSED UNIT IS LIMITED TO GENERAL SCHEDULE AND WAGE BOARD
TECHNICIANS LOCATED IN 10 COUNTIES IN OHIO WHO PERFORM ESSENTIALLY THE
SAME DUTIES AS ARE PERFORMED BY OTHER EMPLOYEES WITH IDENTICAL JOB
CLASSIFICATIONS IN THE REMAINDER OF THE 83RD ARCOM. THE EVIDENCE ALSO
ESTABLISHED THAT JOB VACANCIES ABOVE THE LOWEST ENTRANCE GRADE ARE
POSTED THROUGHOUT THE ENTIRE 83RD ARCOM AND, BECAUSE OF THIS POLICY,
TECHNICIANS TRANSFER FREQUENTLY FROM ONE INSTALLATION TO ANOTHER.
ADDITIONALLY, BECAUSE ALL AUTHORITY OVER THE TECHNICIANS HAS BEEN
DELEGATED TO THE COMMANDER OF THE 83RD ARCOM, THERE IS CENTRALIZED
CONTROL OF POLICY MAKING WHICH RESULTS IN UNIFORM PERSONNEL PRACTICES
THROUGHOUT THE ACTIVITY INCLUDING PROMOTION PROGRAMS AND GRIEVANCES
PROCEDURES. MOREOVER, ALTHOUGH THE LOCAL COMMANDERS HAVE A DEGREE OF
AUTONOMY, THE FINAL DECISIONS IN REGARD TO HIRE, DISCHARGE, PROMOTION,
JOB DISCIPLINE AND SEPARATION ARE MADE BY THE CIVILIAN PERSONNEL OFFICE
TO WHOM THE ARCOM COMMANDER'S AUTHORITY IN SUCH MATTERS HAS BEEN
DELEGATED. IN THESE CIRCUMSTANCES AND NOTING THE ACTIVITY'S POSITION
THAT THE FRAGMENTED UNIT SOUGHT BY THE NFFE WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF ITS OPERATIONS, I FIND THAT THE NFFE'S
PETITIONED FOR UNIT IS NOT APPROPRIATE.
AS TO THE UNITS SOUGHT BY AFGE LOCAL 3158 AND AFGE LOCAL 3175, THE
EVIDENCE ESTABLISHED THAT, AS IN THE CASE OF THE NFFE'S PETITION, THE
UNITS PETITIONED FOR BY THE ABOVE-MENTIONED AFGE LOCALS WERE
INAPPROPRIATE BECAUSE NEITHER UNIT CONTAINED TECHNICIANS WHO SHARED A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND APART FROM THE
OTHER TECHNICIANS OF THE 83RD ARCOM. MOREOVER, AS NOTED ABOVE, AFGE
LOCAL 3158 NOW CONCURS IN THE POSITION OF THE ACTIVITY AND THE AFGE
COUNCIL WITH RESPECT TO THE APPROPRIATENESS OF THE UNIT SOUGHT BY THE
LATTER. ACCORDINGLY, FOR THE REASONS DISCUSSED ABOVE WITH RESPECT TO
THE NFFE'S PETITION, I FIND THAT THE UNITS PETITIONED FOR BY AFGE LOCAL
3158 AND AFGE LOCAL 3175 ARE NOT APPROPRIATE.
I ALSO FIND, BASED ON THE FOREGOING, THAT A UNIT COMPRISED OF ALL
GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES IN THE 83RD ARCOM IS
APPROPRIATE. /7/ AS NOTED ABOVE, THE EVIDENCE ESTABLISHES, AMONG OTHER
THINGS, THAT THERE IS FREQUENT TRANSFER OF TECHNICIANS BETWEEN THE
VARIOUS INSTALLATIONS WITHIN THE 83RD ARCOM; THAT ABOVE THE LOWEST
ENTRANCE GRADE JOB VACANCIES ARE MADE AVAILABLE ON ANY ACTIVITY-WIDE
BASIS; AND THAT THERE IS CENTRALIZED CONTROL OF POLICY MAKING, WHICH
RESULTS IN UNIFORM PERSONNEL PRACTICES THROUGHOUT THE ACTIVITY,
INCLUDING PROMOTION PROGRAMS AND GRIEVANCE PROCEDURES. IN ADDITION,
EMPLOYEES THROUGHOUT THE ACTIVITY ARE ENGAGED IN SIMILAR JOB FUNCTIONS
IN THEIR RESPECTIVE CLASSIFICATIONS AND HAVE SIMILAR TERMS AND
CONDITIONS OF EMPLOYMENT.
ACCORDINGLY, I FIND THAT THERE IS A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST AMONG THE EMPLOYEES PETITIONED FOR BY THE AFGE COUNCIL. /8/
MOREOVER, SUCH A COMPREHENSIVE UNIT WILL, IN MY VIEW AND IN ACCORDANCE
WITH THE ACTIVITY'S POSITION, PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF OPERATIONS.
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES OF THE
ACTIVITY CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491:
ALL GENERAL SCHEDULE AND WAGE BOARD TECHNICIANS IN THE FIRST U.S.
ARMY, 83RD ARMY RESERVE COMMAND (ARCOM) EXCLUDING ALL EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE EXECUTIVE ORDER.
IT IS HEREBY ORDERED THAT THE PETITIONS FILED IN CASE NOS. 53-2972,
53-2975 AND 53-3094 BE, AND THEY HEREBY ARE, DISMISSED. /9/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY COUNCIL OF LOCALS FOR 83RD
ARCOM, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCALS
2106, 2932 AND 2984.
DATED, WASHINGTON, D.C.
MAY 10, 1971
/1/ ALTHOUGH THE PETITION IN THIS CASE DOES NOT SPECIFY LOCAL 3175,
IT IS CLEAR THAT AFGE, LOCAL 3175 IS THE PETITIONER IN CASE NO. 53-3094.
/2/ THE RECORD DISCLOSES THAT AFGE LOCAL 3158 NOW CONCURS IN THE
POSITION OF THE ACTIVITY AND THE AFGE COUNCIL ALTHOUGH ITS PETITIONED
FOR A UNIT WHICH COVERS APPROXIMATELY 35 COUNTIES IN OHIO.
/3/ IT APPEARS THAT THE 83RD ARCOM ENCOMPASSES MEDINA AND SUMMIT
COUNTIES. THE OTHER COUNTIES ARE PART OF THE 99TH ARCOM.
/4/ THERE IS SOME EVIDENCE THAT IN THE LATTER PART OF 1969, THE
PARTIES STARTED DISCUSSING THE POSSIBILITY OF EXCLUSIVE RECOGNITION IN A
UNIT COMPRISED OF THE TEN COUNTIES IN NORTHWESTERN OHIO AS SET FORTH IN
NFFE'S PETITION. HOWEVER, DESPITE SOME TESTIMONY TO THE CONTRARY, IT
DOES NOT APPEAR THAT SUCH RECOGNITION ACTUALLY WAS GRANTED.
/5/ ONE OF THE THREE LOCAL UNION WHICH COMPRISE THE AFGE COUNCIL.
/6/ NO REPRESENTATIVE OF AFGE LOCAL 3175 APPEARED AT THE
REPRESENTATION HEARING IN THE SUBJECT CASES.
/7/ SEE PENNSYLVANIA NATIONAL GUARD A/SLMR NO. 9 AND MINNESOTA ARMY
NATIONAL GUARD, A/SLMR NO. 14.
/8/ AS NOTED ABOVE IN FOOTNOTE 3, THE UNIT PETITIONED FOR BY THE AFGE
COUNCIL INCLUDES TECHNICIANS IN TWO OHIO COUNTIES WHO APPARENTLY ARE
COVERED BY A CURRENT AGREEMENT BETWEEN AFGE LOCAL 2106 AND THE U.S. ARMY
ADVISOR GROUP, FORT HAYES, COLUMBUS, OHIO, AND OAKDALE, PENNSYLVANIA.
HOWEVER, NEITHER PARTY TO THE AGREEMENT URGED THAT IT BE CONSIDERED AS A
BAR AND THE AFGE COUNCIL, ON BEHALF OF LOCAL 2106, EXPRESSLY TOOK THE
POSITION THAT IT WAS NOT A BAR. MOREOVER, ALTHOUGH THE ACTIVITY DID NOT
TAKE A POSITION IN THIS REGARD, ITS CONTENTION THAT THE ENTIRE 83RD
ARCOM CONSTITUTES AN APPROPRIATE UNIT APPEARS TO INDICATE THAT IT DOES
NOT CONSIDER THE AGREEMENT TO CONSTITUTE A BAR IN THIS MATTER.
/9/ BECAUSE THE SHOWING OF INTEREST SUBMITTED BY THE NFFE, AFGE LOCAL
3158 AND AFGE LOCAL 3175 ARE INSUFFICIENT TO TREAT THEM AS INTERVENERS
IN CASE NO. 53-2983, I SHALL ORDER THAT THEIR NAMES NOT BE PLACED ON THE
BALLOT.
1 A/SLMR 34; P. 193; CASE NO. 31-4300(EO); MAY 7, 1971.
DEFENSE SUPPLY AGENCY,
DCASR BOSTON-QUALITY ASSURANCE,
BOSTON, MASSACHUSETTS
A/SLMR NO. 34
THE SUBJECT CASE, INVOLVING A REPRESENTATION PETITION FILED BY THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-202 (NAGE),
RAISED THE QUESTION WHETHER A REGIONAL ADMINISTRATOR'S PRIOR
DETERMINATION WITH RESPECT TO SHOWING OF INTEREST IS SUBJECT TO ATTACK
AT A REPRESENTATION HEARING.
THE ASSISTANT SECRETARY STATED THAT THE ATTEMPT BY THE INTERVENOR,
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1906
(AFGE), TO CHALLENGE THE NAGE'S SHOWING OF INTEREST WAS IMPROPER AS THIS
MATTER HAD BEEN DECIDED PREVIOUSLY BY THE REGIONAL ADMINISTRATOR AND
SUCH DECISION WAS NOT SUBJECT TO COLLATERAL ATTACK AT THE HEARING.
WITH RESPECT TO THE APPROPRIATENESS OF THE UNIT SOUGHT, THE ASSISTANT
SECRETARY FOUND THAT NO EVIDENCE HAD BEEN ADDUCED AT THE HEARING AS TO
WHETHER THE EMPLOYEES IN THE UNIT SOUGHT HAD A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AND WHETHER SUCH A UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND THE EFFICIENCY OF AGENCY OPERATIONS. AS A RESULT, THE
ASSISTANT SECRETARY DECIDED THAT THE RECORD PROVIDED LESS THAN AN
ADEQUATE BASIS FOR MAKING A DETERMINATION WITH REGARD TO THE
APPROPRIATENESS OF THE UNIT SOUGHT. IN VIEW OF THE FOREGOING, THE
ASSISTANT SECRETARY DETERMINED THAT THE CASE BE REMANDED TO THE
APPROPRIATE REGIONAL ADMINISTRATOR FOR FURTHER HEARING SOLELY FOR THE
PURPOSE OF RECEIVING EVIDENCE CONCERNING THE APPROPRIATENESS OF THE
PETITIONED FOR UNIT.
DEFENSE SUPPLY AGENCY,
DCASR BOSTON-QUALITY ASSURANCE
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-202
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1906
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER ANTHONY D. WOLLASTON. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND HEREBY ARE AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R1-202, HEREIN CALLED NAGE, SEEKS AN ELECTION IN A UNIT OF ALL
EMPLOYEES OF THE QUALITY ASSURANCE DIRECTORATE, OPERATIONS DIVISION OF
THE DEFENSE SUPPLY AGENCY, EXCLUDING THOSE EMPLOYEES LOCATED AT THE
BOSTON ARMY BASE, 666 SUMMER STREET, BOSTON, MASSACHUSETTS, MANAGEMENT
OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK EXCEPT IN A
PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, AND GUARDS AND
SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491. /1/ THE ACTIVITY AND
THE INTERVENOR, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1906, HEREIN CALLED AFGE, DO NOT DISPUTE THE APPROPRIATENESS OF
THE NAGE'S PETITIONED FOR UNIT.
PRIOR TO THE HEARING IN THIS MATTER, THE AFGE CHALLENGED THE ADEQUACY
AND VALIDITY OF THE NAGE'S SHOWING OF INTEREST. THE REGIONAL
ADMINISTRATOR DETERMINED THAT THE NAGE'S SHOWING OF INTEREST WAS
ADEQUATE AND VALID.
AT THE HEARING, THE AFGE SOUGHT TO CHALLENGE THE ADEQUACY AND
VALIDITY OF THE NAGE'S SHOWING OF INTEREST AND MOVED TO PRESENT EVIDENCE
WITH REGARD TO ITS ALLEGATION THAT THE AUTHORIZATION SUBMITTED BY THE
NAGE TO THE AREA ADMINISTRATOR DID NOT CONTAIN VALID SIGNATURES. THE
HEARING OFFICER DENIED THE MOTION.
SECTION 202.2(F) OF THE ASSISTANT SECRETARY'S REGULATIONS STATES THAT
"THE AREA ADMINISTRATOR SHALL DETERMINE THE ADEQUACY OF THE SHOWING OF
INTEREST ADMINISTRATIVELY AND SUCH DECISION SHALL NOT BE SUBJECT TO
COLLATERAL ATTACK AT A UNIT OF REPRESENTATION HEARING." IT STATES ALSO
THAT "ANY PARTY CHALLENGING THE VALIDITY OF THE SHOWING OF INTEREST MUST
FILE HIS CHALLENGE WITH THE AREA ADMINISTRATOR WITHIN TEN (10) DAYS
AFTER THE INITIAL DATE OF POSTING OF THE NOTICE OF PETITION AS PROVIDED
IN SECTION 202.4(B) AND SUPPORT HIS CHALLENGE WITH EVIDENCE. THE AREA
ADMINISTRATOR SHALL INVESTIGATE THE CHALLENGE AND REPORT HIS FINDINGS TO
THE REGIONAL ADMINISTRATOR WHO SHALL TAKE SUCH ACTION AS HE DEEMS
APPROPRIATE."
BASED ON THE FOREGOING, I FIND THAT THE AFGE'S ATTEMPT AT THE HEARING
TO CHALLENGE THE NAGE'S SHOWING OF INTEREST WAS IMPROPER AS THIS MATTER
HAD BEEN DECIDED PREVIOUSLY BY THE REGIONAL ADMINISTRATOR AND SUCH
DECISION WAS NOT SUBJECT TO COLLATERAL ATTACK AT THE HEARING.
ACCORDINGLY, THE HEARING OFFICER'S DENIAL OF THE AFGE'S MOTION TO
PRESENT EVIDENCE IN THIS RESPECT HEREBY IS AFFIRMED.
WITH RESPECT TO THE APPROPRIATENESS OF THE UNIT SOUGHT, NO EVIDENCE
WAS ADDUCED AT THE HEARING AS TO WHETHER THE EMPLOYEES IN THE UNIT
SOUGHT HAD A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND WHETHER
SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND THE EFFICIENCY OF AGENCY
OPERATIONS.
SINCE, IN MY VIEW, THE RECORD DOES NOT PROVIDE AN ADEQUATE BASIS ON
WHICH TO DETERMINE THE APPROPRIATENESS OF THE CLAIMED UNIT, I SHALL
REMAND THE SUBJECT CASE TO THE APPROPRIATE REGIONAL ADMINISTRATOR FOR
THE PURPOSE OF REOPENING THE RECORD SOLELY FOR RECEIVING EVIDENCE
CONCERNING THE APPROPRIATENESS OF THE UNIT SOUGHT. /2/
IT IS HEREBY ORDERED THAT THE SUBJECT CASE BE, AND IT HEREBY IS,
REMANDED TO THE APPROPRIATE REGIONAL ADMINISTRATOR.
DATED, WASHINGTON, D.C.
MAY 7, 1971
/1/ THE CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/2/ AS NOTED ABOVE, NONE OF THE PARTIES IN THIS CASE DISPUTED THE
APPROPRIATENESS OF THE UNIT SOUGHT. HOWEVER, THE AGREEMENT OF THE
PARTIES, STANDING ALONE, DOES NOT, IN MY VIEW, AFFORD A SUFFICIENT BASIS
TO DETERMINE THE APPROPRIATENESS OF A UNIT WHERE THE ABOVE-MENTIONED
FACTORS ARE NOT PRESENT IN THE RECORD.
1 A/SLMR 33; P. 190; CASE NO. 71-1402; MAY 4, 1971.
ALASKAN EXCHANGE SYSTEM, BASE EXCHANGE,
FORT GREELY, ALASKA
A/SLMR NO. 33
THIS CASE, INVOLVING A REPRESENTATION PETITION FILED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1949, (AFGE),
PRESENTED THE ISSUES WHETHER THE PARTIES' AGREEMENT AS TO THE
APPROPRIATENESS OF THE UNIT SOUGHT REQUIRED THE ASSISTANT SECRETARY TO
PROCEED TO AN ELECTION AND WHETHER OFF-DUTY MILITARY EMPLOYEES MAY BE
EXCLUDED, AS A CLASS, FROM THE PETITIONED FOR UNIT BASED SOLELY ON THEIR
MILITARY STATUS.
WITH RESPECT TO THE CONTENTION THAT WHERE THE PARTIES WERE IN
AGREEMENT AS TO THE APPROPRIATENESS OF THE UNIT IT WAS INCUMBENT UPON
THE ASSISTANT SECRETARY TO PROCEED WITH AN ELECTION IN THAT UNIT, THE
ASSISTANT SECRETARY REAFFIRMED HIS DECISION IN THE ARMY AND AIR FORCE
EXCHANGE SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS
MISSILE RANGE, NEW MEXICO, A/SLMR NO. 25, IN WHICH HE STATED THAT
NEITHER THE EXECUTIVE ORDER NOR ITS IMPLEMENTING REGULATIONS REQUIRED
THAT AN ELECTION MUST BE HELD IN CIRCUMSTANCES WHERE THERE WAS NO
DISPUTE BETWEEN THE PARTIES AS TO THE APPROPRIATENESS OF THE PETITIONED
FOR UNIT.
WITH REGARD TO OFF-DUTY MILITARY PERSONNEL, THE ASSISTANT SECRETARY
CONCLUDED, FOR THE REASONS ENUNCIATED IN HIS DECISIONS IN DEPARTMENT OF
THE NAVY, NAVY EXCHANGE, MAYPORT, FLORIDA, A/SLMR NO. 24 AND ARMY AND
AIR FORCE EXCHANGE SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE
SANDS MISSILE RANGE, NEW MEXICO, CITED ABOVE, THAT THEIR EXCLUSION FROM
THE UNIT BASED SOLELY ON THEIR MILITARY STATUS WAS UNWARRANTED.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE CLAIMED UNIT WAS
APPROPRIATE. HE NOTED THAT THE EMPLOYEES COVERED BY THE PETITION
ENGAGED IN SIMILAR DUTIES ON AN ACTIVITY-WIDE BASIS AND WERE SUBJECT TO
THE SAME GENERAL WORKING CONDITIONS, SALARY SCHEDULES AND BENEFITS. IN
THESE CIRCUMSTANCES, HE DIRECTED THAT AN ELECTION BE HELD WITH OFF-DUTY
MILITARY PERSONNEL ELIGIBLE TO VOTE IF THEY WORKED THE REQUISITE NUMBER
OF HOURS SO AS TO BE INCLUDED IN THE CATEGORIES, REGULAR FULL-TIME OR
REGULAR PART-TIME.
ALASKAN EXCHANGE SYSTEM, BASE
EXCHANGE, FORT GREELY, ALASKA
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1649
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER GORDON M. BYRHOLDT. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
/1/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1949, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY-PAID PLAN EMPLOYEES
EMPLOYED BY THE ALASKAN EXCHANGE SYSTEM AT BASE EXCHANGE, FORT GREELY,
ALASKA, EXCLUDING "TEMPORARY FULL-TIME, TEMPORARY PART-TIME, CASUAL,
ON-CALL, MILITARY PERSONNEL EMPLOYED DURING OFF-DUTY HOURS, MANAGEMENT,
EXECUTIVE, SUPERVISORY EMPLOYEES, MANAGEMENT TRAINEES, EMPLOYEES ENGAGED
IN PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL
EMPLOYEES, GUARDS AND WATCHMEN." /2/ THE ACTIVITY AGREES THAT THE UNIT
SOUGHT BY THE AFGE IS APPROPRIATE. BOTH PARTIES ARE IN AGREEMENT THAT
THE EXCLUSION OF OFF-DUTY MILITARY PERSONNEL IS WARRANTED.
AT THE OUTSET OF THE HEARING IN THIS CASE, THE ACTIVITY AND THE AFGE
TOOK THE POSITION THAT WHERE, AS HERE, THERE IS NO DISPUTE BETWEEN THE
PARTIES AS TO THE APPROPRIATENESS OF THE UNIT SOUGHT, AN ELECTION MUST
BE DIRECTED BY THE ASSISTANT SECRETARY. THE AFGE MOVED FROM A
CONTINUANCE OF THE HEARING ON THIS BASIS AND THE HEARING OFFICER DENIED
THE MOTION. IN ITS BRIEF, THE ACTIVITY RENEWED THE ARGUMENT AND
REQUESTED THE ASSISTANT SECRETARY TO ENTER AN ORDER VACATING THE NOTICE
OF HEARING ISSUED BY THE REGIONAL ADMINISTRATOR. FOR REASONS ENUNCIATED
IN ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS MISSILE RANGE
EXCHANGE, WHITE SANDS MISSILE RANGE, NEW MEXICO, A/SLMR NO. 25, I FIND
NO MERIT IN THE PARTIES' CONTENTIONS. ACCORDINGLY, THE HEARING
OFFICER'S RULING IS HEREBY AFFIRMED, AND THE ACTIVITY'S MOTION MADE IN
ITS BRIEF IS HEREBY DENIED.
THE ACTIVITY IS A FUNCTION OF THE ALASKAN EXCHANGE SYSTEM WHICH IS
ONE OF THREE OVERSEAS EXCHANGES. IT IS AN ADMINISTRATIVE SUBDIVISION OF
THE ARMY AND AIR FORCE EXCHANGE SERVICE, AND IS GOVERNED BY REGULATIONS
OF THE ARMY, THE AIR FORCE, AND THE DEPARTMENT OF DEFENSE. IT IS
OPERATED UNDER PERSONNEL POLICIES ESTABLISHED BY A CHIEF, WHO RECEIVES
HIS DIRECTION FROM A BOARD OF 15 ARMY AND AIR FORCE OFFICERS DELEGATED
BY THE SECRETARIES OF THE ARMY AND AIR FORCE TO PROVIDE OPERATIONAL AND
POLICY GUIDANCE. THE ACTIVITY PROVIDES TO AUTHORIZE PERSONS ON THE BASE
MERCHANDISE AND SERVICES OF NECESSITY AND CONVENIENCE. IN ORDER TO
CARRY OUT ITS MISSION, THE ACTIVITY OPERATES FACILITIES WHICH INCLUDE A
"MAIN STORE", A GROCERTERIA AND SPORTING GOODS STORE, A WAREHOUSE, A
SNACK BAR, AND A BEAUTY PARLOR. AMONG THE EMPLOYEES IN THESE FACILITIES
ARE GENERAL CLERKS, SALES CLERKS, A GRILL ATTENDANT, FOODSERVICE
HELPERS, A BEAUTICIAN, AND A STOCK CLERK, WHO ARE CLASSIFIED EITHER AS
REGULAR FULL-TIME OR REGULAR PART-TIME EMPLOYEES.
WITH RESPECT TO THE DUTIES OF THE EMPLOYEES IN THE UNIT SOUGHT, THE
EVIDENCE REVEALS THAT STOCK CLERKS HANDLE BOXES CONTAINING MERCHANDISE
AND THEY STOCK MERCHANDISE ON THE FLOOR OF THE STORE INVOLVED; SNACK
BAR EMPLOYEES COOK, MAKE CHANGE FOR, AND RESTOCK, VENDING MACHINES, SELL
BEER AND CLEAN UP THE PREMISES; SALES CLERKS SELL THE MERCHANDISE IN
THE STORES; GRILL ATTENDANTS AND FOOD SERVICE HELPERS WORK IN THE SNACK
BAR; AND THE BEAUTICIAN ENGAGES IN DUTIES NORMALLY PERFORMED AT THE
BEAUTY PARLOR. THESE EMPLOYEES ALL ARE SUBJECT TO THE SAME GENERAL
WORKING CONDITIONS, SALARY SCHEDULES, AND BENEFITS. IN THESE
CIRCUMSTANCES, AND NOTING THE ACTIVITY-WIDE NATURE OF THE UNIT SOUGHT, I
FIND THAT THE EMPLOYEES COVERED BY THE AFGE'S PETITION SHARE A CLEAR
IDENTIFICATION COMMUNITY OF INTEREST AND THAT SUCH A UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS.
WITH REGARD TO THE OFF-DUTY MILITARY EMPLOYEES EMPLOYED BY THE
ACTIVITY, THE RECORD INDICATES THAT THESE EMPLOYEES PERFORM
SUBSTANTIALLY THE SAME WORK, ARE PAID UNDER THE SAME WAGE SCALE, WORK IN
THE SAME OCCUPATIONAL CATEGORIES AND ARE SUBJECT TO THE SAME GENERAL
WORKING CONDITIONS AS CIVILIAN EMPLOYEES. AS STATED ABOVE, BOTH THE
ACTIVITY AND THE AFGE CONTEND THAT THE EXCLUSION OF THESE OFF-DUTY
MILITARY EMPLOYEES FROM THE BARGAINING UNIT IS WARRANTED. THEY BASE
THIS CONTENTION ON, AMONG OTHER THINGS, THE LABOR RELATIONS HISTORY OF
THE ARMY AND AIR FORCE EXCHANGE SERVICE, WHERE SUCH EMPLOYEES HAVE
TRADITIONALLY BEEN EXCLUDED FROM SUCH BARGAINING UNITS; THE LACK OF
COMMUNITY OF INTEREST BETWEEN OFF-DUTY MILITARY AND CIVILIAN EMPLOYEES
OF THE ACTIVITY; AND THE ADVERSE EFFECT INCLUSION OF MILITARY PERSONNEL
IN THE PROPOSED UNIT WOULD HAVE ON THE EFFICIENCY OF THE ACTIVITY'S
OPERATIONS. FOR THE REASONS ENUNCIATED IN DEPARTMENT OF THE NAVY, NAVY
EXCHANGE, MAYPORT, FLORIDA, A/SLMR NO. 24 AND ARMY AND AIR FORCE
EXCHANGE SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS
MISSILE RANGE, NEW MEXICO, CITED ABOVE, I FIND THAT, ONCE HIRED,
OFF-DUTY MILITARY PERSONNEL STAND IN SUBSTANTIALLY THE SAME EMPLOYMENT
RELATIONSHIP WITH THE ACTIVITY AS DO OTHER ACTIVITY EMPLOYEES AND THAT
THEIR EXCLUSION FROM THE UNIT BASED SOLELY ON THEIR MILITARY STATUS IS
UNWARRANTED.
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME /3/ HOURLY-PAID PLAN
EMPLOYEES, INCLUDING OFF-DUTY MILITARY PERSONNEL IN EITHER OF THESE
FOREGOING CATEGORIES /4/ EMPLOYED AT THE ALASKAN EXCHANGE SYSTEM, BASE
EXCHANGE, FORT GREELY, ALASKA, EXCLUDING TEMPORARY PART-TIME, CASUAL AND
ON-CALL EMPLOYEES, /5/ EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER. /6/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1949.
DATED, WASHINGTON, D.C.
MAY 4, 1971
/1/ THE PETITIONER FILED AN UNTIMELY BRIEF WHICH HAS NOT BEEN
CONSIDERED.
/2/ THE AFGE'S CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/3/ UNDER THE ACTIVITY'S DEFINITION, AS APPARENTLY AGREED TO BY THE
AFGE, REGULAR FULL-TIME EMPLOYEES WORK ON A 40-HOUR A WEEK BASIS.
REGULAR PART-TIME EMPLOYEES ARE HIRED FOR AN EXPECTED PERIOD OF MORE
THAN 90 DAYS WITH A REGULARLY SCHEDULED WORK WEEK OF AT LEAST 16 BUT
LESS THAN 35 HOURS.
/4/ OFF-DUTY MILITARY PERSONNEL WHO WORK A SUFFICIENT NUMBER OF HOURS
TO BE CLASSIFIED AS EITHER REGULAR FULL-TIME OR REGULAR PART-TIME MAY
NOT BE EXCLUDED FROM THE UNIT ON THE BASIS OF AGENCY REGULATIONS WHICH
CATEGORIZE SUCH PERSONNEL AS "TEMPORARY PART-TIME" OR OTHERWISE
AUTOMATICALLY EXCLUDE THEM FROM BARGAINING UNITS.
/5/ THE RECORD INDICATES THAT "CASUAL EMPLOYEES" WORK ON AN EMERGENCY
BASIS AND HAVE NO REASONABLE EXPECTANCY OF REGULAR EMPLOYMENT. THEIR
EXCLUSION FROM THE UNIT IS THEREFORE WARRANTED. WITH RESPECT TO
"ON-CALL EMPLOYEES", THE RECORD ESTABLISHES THAT THESE ARE EMPLOYEES
WHOSE WORK RECORD IS OF A SPORADIC NATURE. IT THEREFORE APPEARS THAT
THE EXCLUSION OF SUCH EMPLOYEES FROM THE UNIT IS SIMILARLY WARRANTED.
INASMUCH AS THE RECORD ESTABLISHES THAT THERE ARE NO TEMPORARY FULL-TIME
EMPLOYEES PRESENTLY EMPLOYED AT THE ACTIVITY, I SHALL NOT AT THIS TIME
MAKE ANY FINDINGS WITH RESPECT TO WHETHER THEY WOULD COME WITHIN THE
EXCLUDED CATEGORY OF EMPLOYEES BASED ON THEIR JOB STATUS AT THE
ACTIVITY. WITH REGARD TO TEMPORARY PART-TIME EMPLOYEES, THE RECORD IS
CLEAR THAT EMPLOYEES IN THE CATEGORY ARE EMPLOYED FOR PERIODS THAT DO
NOT EXCEED 90 DAYS. ACCORDINGLY, I FIND THAT THEY DO NOT HAVE A
SUBSTANTIAL AND CONTINUING INTEREST IN THEIR TERMS AND CONDITIONS OF
EMPLOYMENT ALONG WITH OTHER EMPLOYEES IN THE UNIT AND SHOULD BE EXCLUDED
FROM THE UNIT.
/6/ ALTHOUGH THE PETITION, AS AMENDED AT THE HEARING, CONTAINED
REFERENCES TO SEVERAL OTHER EXCLUDED CLASSIFICATIONS, THE RECORD IS NOT
CLEAR AS TO WHETHER THERE ARE ANY "MANAGERIAL TRAINEES" WHO, BECAUSE OF
THEIR ALLEGED MANDATORY EXCLUDABLE STATUS AS MANAGEMENT OFFICIALS,
SHOULD BE EXCLUDED FROM THE UNIT. THE RECORD ALSO IS NOT CLEAR AS TO
THE CLASSIFICATION OF "WATCHMEN" WHO, BECAUSE OF THE PECULIAR NATURE OF
THEIR EMPLOYMENT, MAY COME WITHIN THE CATEGORY OF GUARDS AND WOULD
THEREFORE BE PROHIBITED BY THE EXECUTIVE ORDER FROM INCLUSION IN A UNIT
WITH EMPLOYEES OTHER THAN GUARDS. IN THESE CIRCUMSTANCES, I MAKE NO
FINDINGS WITH RESPECT TO SUCH POSSIBLE CLASSIFICATIONS.
1 A/SLMR 32; P. 188; CASE NO. 71-1377(RO); APRIL 30, 1971.
ALASKAN EXCHANGE SYSTEM,
SOUTHERN DISTRICT AND HEADQUARTERS,
ELMENDORF AIR FORCE BASE AND
FOR RICHARDSON, ANCHORAGE, ALASKA
A/SLMR NO. 32
THIS CASE, INVOLVING A REPRESENTATION PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1668, (AFGE)
PRESENTED THE QUESTION WHETHER OFF-DUTY MILITARY EMPLOYEES MAY BE
EXCLUDED FROM THE PETITIONED FOR UNIT BASED SOLELY ON THEIR MILITARY
STATUS. THE AFGE REQUESTED A UNIT OF ALL REGULAR FULL-TIME AND REGULAR
PART-TIME HOURLY PAY PLAN EMPLOYEES EMPLOYED BY THE ALASKAN EXCHANGE
SYSTEM, SOUTHERN DISTRICT AND HEADQUARTERS AT ELMENDORF AIR FORCE BASE
AND FORT RICHARDSON, ANCHORAGE, ALASKA. BOTH THE PETITIONER AND THE
ACTIVITY AGREED THAT OFF-DUTY MILITARY PERSONNEL EMPLOYED BY THE LATTER
SHOULD BE EXCLUDED FROM THE UNIT.
THE ASSISTANT SECRETARY CONCLUDED, FOR THE REASONS ENUNCIATED IN
DEPARTMENT OF THE NAVY, NAVY EXCHANGE, MAYPORT, FLORIDA, A/SLMR NO. 24,
AND ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS MISSILE RANGE
EXCHANGE, WHITE SANDS MISSILE RANGE, NEW MEXICO, A/SLMR NO. 25, THAT
ONCE HIRED, OFF-DUTY MILITARY PERSONNEL STOOD IN SUBSTANTIALLY THE SAME
EMPLOYMENT RELATIONSHIP WITH THE ACTIVITY AS DID OTHER ACTIVITY
EMPLOYEES AND THAT THEIR EXCLUSION FROM THE UNIT BASED SOLELY ON THEIR
MILITARY STATUS WAS UNWARRANTED.
IN VIEW OF THE INCLUSION IN THE PETITIONED FOR UNIT OF CERTAIN
OFF-DUTY MILITARY PERSONNEL, THE ASSISTANT SECRETARY ORDERED THAT THE
AFGE'S PETITION BE DISMISSED ON THE BASIS THAT THE INCLUSION OF THESE
ADDITIONAL EMPLOYEES RENDERED INADEQUATE THE AFGE'S SHOWING OF INTEREST.
ALASKAN EXCHANGE SYSTEM,
SOUTHERN DISTRICT AND HEADQUARTERS,
ELMENDORF AIR FORCE BASE AND
FORT RICHARDSON, ANCHORAGE, ALASKA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1668 /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER HENRY C. LEE, JR. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
/2/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1668, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN EMPLOYEES
EMPLOYED BY THE ALASKAN EXCHANGE SYSTEM, SOUTHERN DISTRICT AND
HEADQUARTERS AT ELMENDORF AIR FORCE BASE AND FORT RICHARDSON, ANCHORAGE,
ALASKA. BOTH THE AFGE AND THE ACTIVITY AGREE THAT THE UNIT SOUGHT IS
APPROPRIATE. /3/
BOTH PARTIES CONTEND THAT THE PROPOSED EXCLUSION OF OFF-DUTY MILITARY
PERSONNEL IS WARRANTED, BASE, AMONG OTHER THINGS, ON THE LABOR RELATIONS
HISTORY OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, HEREIN CALLED AAFES,
WHERE OFF-DUTY MILITARY EMPLOYEES HAVE TRADITIONALLY BEEN EXCLUDED FROM
BARGAINING UNITS; THE ABSENCE OF A COMMUNITY OF INTEREST BETWEEN THE
MILITARY AND CIVILIAN EMPLOYEES OF THE ACTIVITY; THE ADVERSE EFFECT
THAT INCLUSION OF MILITARY PERSONNEL IN THE PROPOSED UNIT WOULD HAVE ON
THE EFFICIENCY OF THE OPERATIONS OF THE ACTIVITY; AND VARIOUS
DIRECTIVES AND REGULATIONS ISSUED BY THE DEPARTMENT OF DEFENSE, THE
DEPARTMENT OF THE ARMY, THE DEPARTMENT OF THE AIR FORCE, AND THE AAFES
WITH RESPECT TO THE EMPLOYMENT OF MILITARY AND CIVILIAN PERSONNEL.
THE ACTIVITY IS AN ADMINISTRATIVE SUBDIVISION OF THE AAFES WHOSE
MISSION IS TO ADMINISTER THE OPERATION OF RETAIL AND SERVICE FACILITIES
FOR THE CONVENIENCE OF MILITARY PERSONNEL AND THEIR DEPENDENTS. IT IS
OPERATED UNDER PERSONNEL POLICIES ESTABLISHED BY THE CHIEF, AAFES, WHO
IS GOVERNED BY REGULATIONS OF THE ARMY, THE AIR FORCE AND THE DEPARTMENT
OF DEFENSE. THE EMPLOYEES OF THE ACTIVITY, INCLUDING OFF-DUTY MILITARY
PERSONNEL, WORK IN SEVERAL FACILITIES AT ELMENDORF AIR FORCE BASE AND
FORT RICHARDSON, ANCHORAGE, ALASKA, INCLUDING GROCERY, GENERAL
MERCHANDISE AND SPORTING GOODS STORES, SERVICE STATIONS, CAFETERIAS AND
SNACK BARS. /4/
AT THE OUTSET OF THE HEARING IN THIS CASE, THE ACTIVITY AND THE AFGE
TOOK THE POSITION THAT WHERE, AS HERE, THERE IS NO DISPUTE BETWEEN THE
PARTIES AS TO THE APPROPRIATENESS OF THE UNIT SOUGHT, AN ELECTION IN
THAT UNIT MUST BE HELD. THIS POSITION WAS BASED ON THE VIEW THAT THERE
IS NO PROVISION IN THE EXECUTIVE ORDER OR THE ASSISTANT SECRETARY'S
REGULATIONS WHICH WOULD PERMIT THE ASSISTANT SECRETARY TO ORDER A
REPRESENTATION HEARING IN SUCH CIRCUMSTANCES AND THEREBY DEFER THE
HOLDING OF AN ELECTION. BASED ON THE FOREGOING CONTENTION, THE ACTIVITY
MOVED TO DISMISS THE NOTICE OF HEARING IN THIS CASE. /5/ FOR THE
REASONS ENUNCIATED IN ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS
MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW MEXICO, A/SLMR
NO. 25, I FIND THAT A REGIONAL ADMINISTRATOR IS NOT PRECLUDED BY EITHER
THE ORDER OR THE REGULATIONS FROM ISSUING A NOTICE OF HEARING IN
CIRCUMSTANCES WHERE THE PARTIES ARE IN AGREEMENT AS TO THE
APPROPRIATENESS OF THE UNIT SOUGHT. ACCORDINGLY, THE ACTIVITY'S MOTION
TO DISMISS THE NOTICE OF HEARING IN THIS CASE, BASED ON THE PARTIES'
AGREEMENT AS TO THE APPROPRIATENESS OF THE UNIT, IS DENIED.
THE RECORD ESTABLISHES THAT OFF-DUTY MILITARY PERSONNEL ARE HIRED BY
THE ACTIVITY TO SUPPLEMENT ITS CIVILIAN WORK FORCE. MANY OF THESE
EMPLOYEES WORK A SUBSTANTIAL NUMBER OF HOURS A WEEK, /6/ ARE COMPENSATED
AT THE SAME HOURLY RATE FOR THEIR SERVICES AS CIVILIAN PERSONNEL AND
WORK UNDER THE SAME GENERAL TERMS AND CONDITIONS OF EMPLOYMENT AS A
CIVILIAN PERSONNEL. FURTHER, OFF-DUTY MILITARY PERSONNEL WORK IN THE
SAME OCCUPATIONAL CATEGORIES AS CIVILIAN EMPLOYEES.
AS NOTED ABOVE, THE ACTIVITY AND THE AFGE CONTEND, AMONG OTHER
THINGS, THAT OFF-DUTY MILITARY PERSONNEL DO NOT SHARE A SUFFICIENT
COMMUNITY OF INTEREST WITH THE CIVILIAN EMPLOYEES OF THE ACTIVITY TO
WARRANT THEIR INCLUSION IN THE UNIT BECAUSE THEIR PRESENCE ON THE JOB IS
SUBJECT TO THE WILL OF THEIR COMMANDING OFFICER; THEY ARE CONSIDERED TO
BE IN A MILITARY DUTY STATUS 24 HOURS A DAY; AND THEIR INCLUSION IN THE
PROPOSED UNIT WOULD HAVE AN ADVERSE EFFECT ON THE EFFICIENCY OF THE
ACTIVITY'S OPERATIONS.
FOR THE REASONS ENUNCIATED IN DEPARTMENT OF THE NAVY, NAVY EXCHANGE,
MAYPORT, FLORIDA, A/SLMR NO. 24 AND ARMY AND AIR FORCE EXCHANGE SERVICE,
WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW
MEXICO, CITED ABOVE, I FIND THAT, ONCE HIRED, OFF-DUTY MILITARY
PERSONNEL STAND IN SUBSTANTIALLY THE SAME EMPLOYMENT RELATIONSHIP WITH
THE ACTIVITY AS DO OTHER ACTIVITY EMPLOYEES AND THAT THEIR EXCLUSION
FROM THE UNIT BASED SOLELY ON THEIR MILITARY STATUS IS UNWARRANTED.
IN VIEW OF THE FOREGOING, I FIND THAT THE EXCLUSION OF ALL OFF-DUTY
MILITARY PERSONNEL WITHOUT REGARD TO THEIR JOB STATUS OR TENURE IS
UNWARRANTED. I AM ADVISED ADMINISTRATIVELY THAT THE ADDITION OF CERTAIN
OFF-DUTY MILITARY PERSONNEL IN THE INCLUDED CATEGORIES OF EMPLOYEES,
RENDERS INADEQUATE THE AFGE'S SHOWING OF INTEREST.
ACCORDINGLY, I SHALL DISMISS THE PETITION IN THE SUBJECT CASE.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 71-1377(RO) BE,
AND IS HEREBY DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 20, 1971
/1/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/2/ THE PETITIONER FILED AN UNTIMELY BRIEF WHICH HAS NOT BEEN
CONSIDERED.
/3/ THE PARTIES AGREED THAT THE FOLLOWING CLASSIFICATIONS OF
EMPLOYEES SHOULD BE EXCLUDED FROM THE CLAIMED UNIT: TEMPORARY
FULL-TIME, TEMPORARY PART-TIME, CASUAL, ON-CALL, MILITARY PERSONNEL
EMPLOYED DURING OFF-DUTY HOURS, MANAGEMENT, EXECUTIVE, SUPERVISORY
EMPLOYEES, MANAGEMENT TRAINEES, EMPLOYEES ENGAGED IN PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, GUARDS
AND WATCHMEN.
/4/ THE RECORD REVEALS THAT THE TYPE OF WORK ASSIGNED OFF-DUTY
MILITARY PERSONNEL IS NOT RESTRICTED TO ANY PARTICULAR JOB
CLASSIFICATION.
/5/ THE HEARING OFFICER DENIED THE ACTIVITY'S MOTION AND THE LATTER
NOW REQUESTS THAT THE ASSISTANT SECRETARY CONSIDER THE MOTION.
/6/ THE RECORD REVEALS THAT THERE ARE A SUBSTANTIAL NUMBER OF
OFF-DUTY MILITARY EMPLOYEES WHO HAVE BEEN EMPLOYED BY THE ACTIVITY FOR
MORE THAN 90 DAYS AND HAVE WORKED AT LEAST 16 HOURS A WEEK. UNDER THE
ACTIVITY'S DEFINITION, AS APPARENTLY AGREED TO BY THE AFGE, A REGULAR
PART-TIME EMPLOYEE IS ONE WHO IS "HIRED FOR AN EXPECTED PERIOD OF MORE
THAN 90 DAYS WITH A REGULARLY SCHEDULED WORKWEEK OF AT LEAST 16 BUT LESS
THAN 35 HOURS." SEE, IN THIS RESPECT, FOOTNOTE 3 IN ARMY AND AIR FORCE
EXCHANGE SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS
MISSILE RANGE, NEW MEXICO, CITED ABOVE.
1 A/SLMR 31; P. 167; CASE NO. 46-1617(RO); APRIL 26, 1971.
NORFOLK NAVAL SHIPYARD
A/SLMR NO. 31
THIS CASE AROSE AS A RESULT OF FIFTY NAVAL DISTRICT METAL TRADES
COUNCIL, AFL-CIO (MTC) FILING OBJECTIONS ALLEGING THAT CERTAIN CONDUCT
BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC. (NAGE)
AFFECTED THE RESULTS OF THE ELECTION HELD AT THE NORFOLK NAVAL SHIPYARD,
PORTSMOUTH, VIRGINIA.
A HEARING, INVOLVING CERTAIN OF THE OBJECTIONS ORIGINALLY FILED, WAS
HELD BEFORE A HEARING EXAMINER, ALLEGING THAT (1) THE ACTIVITY ADOPTED
AND MAINTAINED RULES RESTRICTING MTC'S RIGHT TO COMMUNICATE WITH THE
EMPLOYEES AND ASSISTED NAGE BY DISPARATE APPLICATIONS OF SUCH RULES;
(2) NAGE MADE PROMISES OF TANGIBLE ECONOMIC BENEFITS INVOLVING (A)
PAYMENT FOR SOLICITATION OF NEW MEMBERS,(B) 6-MONTHS FREE MEMBERSHIP,
(C) FREE LEGAL SERVICES, AND (D) FREE INSURANCE, AND; (3)NAGE FALSELY
REPRESENTED THAT EMPLOYEES WERE ELIGIBLE FOR INSURANCE WITH THE
TRAVELERS INSURANCE COMPANY IMMEDIATELY UPON BECOMING A MEMBER.
UPON REVIEW OF THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND
THE ENTIRE RECORD, INCLUDING THE EXCEPTIONS, BRIEFS AND POST-HEARING
MOTIONS, THE ASSISTANT SECRETARY FOUND THAT THE PROMISE OF A FREE
$10,000 ACCIDENTAL DEATH AND DISMEMBERMENT INSURANCE POLICY CONSTITUTED
THE GRANTING OF AN IMMEDIATE TANGIBLE ECONOMIC GIFT BASED, IN PART, ON
THE PAYMENT TO THE BENEFICIARY OF A DECEASED SHIPYARD EMPLOYEE OF
$10,000 WHICH WAS PROVIDED THROUGH NAGE'S GENERAL FUND COVERAGE. IT WAS
ALSO FOUND THAT, UNDER ALL THE CIRCUMSTANCES, THE OFFER OF FREE
TRAVELERS INSURANCE COVERAGE WAS A PROMISE OF BENEFIT MADE CONTINGENT
UPON THE OUTCOME OF THE ELECTION.
WITH RESPECT TO THE REMAINING ALLEGATIONS, THE ASSISTANT SECRETARY
HELD THAT THE MTC NOT ONLY HAD THE OPPORTUNITY TO, BUT DID, RESPOND TO
NAGE'S MISREPRESENTATIONS WITH RESPECT TO FREE INSURANCE, THUS ENABLING
THE EMPLOYEES TO MAKE A PROPER EVALUATION. THE ASSISTANT SECRETARY ALSO
CONCLUDED THAT THE ACTIVITY'S ELECTIONEERING RULES WERE VALID INASMUCH
AS THEY WERE PROMULGATED UNDER AUTHORITY OF E.O. 10988 AND WERE IN
CONFORMANCE WITH THE GUIDELINES ESTABLISHED BY THE CIVIL SERVICE
COMMISSION. THE REMAINING ALLEGATIONS, NOTED ABOVE, WERE FOUND TO BE
WITHOUT MERIT.
BASED ON THE FOREGOING, THE ASSISTANT SECRETARY SET ASIDE THE
DECEMBER 4, 1969 ELECTION AND DIRECTED THAT A SECOND ELECTION BE
CONDUCTED.
NORFOLK NAVAL SHIPYARD
AND
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, INC.
AND
FIFTH NAVAL DISTRICT
METAL TRADES COUNCIL, AFL-CIO /1/
ON DECEMBER 7, 1970, THE HEARING EXAMINER SIDNEY J. BARBAN ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING, IN
PART, THAT THE OFFER OF FREE INSURANCE BY THE NAGE WAS A TANGIBLE
ECONOMIC GIFT. THE EXAMINER FOUND ALSO THAT THE NAGE HAD ENGAGED IN
MISREPRESENTATION WITH REGARD TO MEMBERS BEING COVERED BY A POLICY WITH
TRAVELERS INSURANCE COMPANY. THE HEARING EXAMINER CONCLUDED THAT THE
EMPLOYEES' FREEDOM OF CHOICE HAD BEEN IMPAIRED, AND ACCORDINGLY,
RECOMMENDED THAT THE ELECTION HELD ON DECEMBER 4, 1969 BE SET ASIDE AND
A NEW ELECTION BE DIRECTED UNDER THE TERMS OF EXECUTIVE ORDER 11491.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE ENTIRE RECORD
INCLUDING THE EXCEPTIONS, BRIEF AND CERTAIN POST-HEARING MOTIONS /2/ BY
NAGE /3/ AND MTC /4/ I ADOPT THE FINDINGS AND RECOMMENDATIONS OF THE
HEARING EXAMINER EXCEPT AS MODIFIED HEREIN:
ASSERTION OF JURISDICTION
EXECUTIVE ORDER 10988 PROVIDED THE RIGHT TO THIRD-PARTY REVIEW OF
DISPUTES INVOLVING MAJORITY REPRESENTATION. THIS RIGHT WAS CONTINUED
WITHOUT INTERRUPTION IN EXECUTIVE ORDER 11491. UNDER SECTION 6 OF THE
ORDER THE ASSISTANT SECRETARY IS DIRECTED TO DECIDE QUESTIONS REGARDING
MAJORITY REPRESENTATION. I CONCLUDE THAT EXECUTIVE ORDER 11491
ESTABLISHES THE REQUISITE AUTHORITY FOR ME TO ASSERT JURISDICTION IN
THIS MATTER. ACCORDINGLY, I DENY THE NAGE MOTION TO DISMISS THIS
PROCEEDING ON THE GROUNDS THAT THE ELECTION WAS INITIATED AND CONDUCTED
UNDER EXECUTIVE ORDER 10988 AND THAT THERE IS NO LEGAL AUTHORITY FOR THE
ASSISTANT SECRETARY TO APPLY EXECUTIVE ORDER 11491.
OBJECTION NO. 1(B) /5/
THE MTC ALLEGES THAT THE ACTIVITY ADOPTED AND MAINTAINED UNLAWFUL
RULES WHICH RESTRICTED ITS RIGHT TO COMMUNICATE WITH THE EMPLOYEES IN
THE UNIT. /6/ IT FURTHER ALLEGES THAT THE ACTIVITY SUPPORTED AND
ASSISTED THE NAGE BY PERMITTING NAGE TO DISTRIBUTE CAMPAIGN LITERATURE,
OBTAIN AUTHORIZATIONS, ETC., DURING WORKING HOURS CONTRARY TO FEDERAL
PERSONNEL MANUAL LETTER 711-6 (ISSUED BY THE CIVIL SERVICE COMMISSION).
THE HEARING EXAMINER FOUND THAT "THE RULES WHEN ADOPTED AND APPLIED WERE
IN ACCORDANCE WITH THE REQUIREMENTS OF THE VARIOUS AGENCIES WHICH WERE
AUTHORIZED BY EXECUTIVE ORDER TO SET THE RULES." HE FOUND ALSO THAT SUCH
RULES WERE APPLIED IN AS "EVENHANDED AND OBJECTIVE A MANNER AS WAS
POSSIBLE UNDER THE CIRCUMSTANCES," AND THEREFORE THE APPLICATION OF
THESE RULES TO THE ELECTION PROCESS UNDER EXECUTIVE ORDER 10988 "SHOULD
NOT NOW BE GROUNDS FOR INVALIDATION OF THE ELECTION INVOLVED HERE."
ACCORDINGLY, THE HEARING EXAMINER RECOMMENDED THAT THIS OBJECTION BE
OVERRULED.
NAGE'S CAMPAIGN TO MOUNT ITS CHALLENGE TO MTC'S MAJORITY STATUS BEGAN
IN JANUARY 1969 AND CULMINATED IN ITS FILING A TIMELY REQUEST FOR
RECOGNITION ON APRIL 25, 1969. THE VALIDITY OF THIS CHALLENGE WAS
DETERMINED BY THE ACTIVITY IN JULY 1969. DURING THIS PERIOD BOTH UNIONS
WERE PROHIBITED FROM DISTRIBUTING LITERATURE ON THE ACTIVITY'S PREMISES
WITHOUT PRIOR APPROVAL AS WELL AS FROM ENGAGING IN "CAMPAIGNS FOR
MEMBERSHIP ELECTION" ON ITS PREMISES AT ANY TIME. IN ADDITION, THE NAGE
WAS PROHIBITED FROM ENGAGING IN CONDUCT ON THE ACTIVITY'S PREMISES
DURING NONWORKING HOURS INVOLVING SOLICITING MEMBERSHIP, COLLECTING DUES
OR ASSESSMENTS, CONDUCTING MEMBERSHIP MEETINGS AND IN THE USE OF
STEWARDS. MTC, ON THE OTHER HAND, BY VIRTUE OF ITS INCUMBENT STATUS,
WAS ALLOWED TO ENGAGE IN THE LATTER ACTIVITIES. HOWEVER, BOTH UNIONS
WERE PERMITTED TO MEET WITH THE ACTIVITY UNDER CERTAIN CONDITIONS AND TO
POST NOTICES OF MEMBERSHIP MEETINGS ON UNOFFICIAL BULLETIN BOARDS
SUBJECT TO APPROVAL BY THE ACTIVITY.
ON AUGUST 8 RESTRICTIONS ON THE DISTRIBUTION AND POSTING OF CAMPAIGN
MATERIAL IN THE SHIPYARD WERE IMPOSED UPON MTC, PENDING AN ELECTION
AGREEMENT BEING ENTERED INTO BY THE PARTIES. SUBSEQUENTLY, SUCH
AGREEMENTS SETTING FORTH ELECTIONEERING RULES WERE EXECUTED ON OCTOBER 7
AND NOVEMBER 25. /7/
EXECUTIVE ORDER 10988 DIRECTED THE CIVIL SERVICE COMMISSION TO
"DEVELOP A PROGRAM FOR THE GUIDANCE OF AGENCIES IN EMPLOYEE-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE; PROVIDED TECHNICAL ADVICE TO THE
AGENCIES ON EMPLOYEE-MANAGEMENT PROGRAMS . . . " THE ORDER DIRECTED THE
HEAD OF EACH AGENCY TO "ISSUE APPROPRIATE POLICY, RULES AND REGULATIONS
FOR THE IMPLEMENTATION OF THIS ORDER . . . " BASED UPON THIS AUTHORITY
THE CIVIL SERVICE COMMISSION IN 1966 ISSUED FEDERAL PERSONNEL MANUAL
LETTER 711-6, ENTITLED "GUIDANCE FOR AGENCIES IN DEALING WITH EMPLOYEE
ORGANIZATIONS COMPETING FOR EXCLUSIVE RECOGNITION." AMONG THE GUIDELINES
SUGGESTED WERE CERTAIN LIMITATIONS ON ORGANIZATIONAL ACTIVITIES ON THE
AGENCY'S PREMISES BY UNIONS COMPETING FOR EXCLUSIVE RECOGNITION.
UPON THE REVIEW OF THE RECORD, I ADOPT THE CONCLUSIONS AND
RECOMMENDATIONS OF THE HEARING EXAMINER TO THE EXTENT THAT THE RULES
MUST BE DEEMED TO BE VALID SINCE THEY WERE PROMULGATED UNDER THE
AUTHORITY OF EXECUTIVE ORDER 10988 AND WERE IN CONFORMANCE WITH
GUIDELINES ESTABLISHED BY THE CIVIL SERVICE COMMISSION. /8/ I ADOPT
ALSO THE HEARING EXAMINER'S CONCLUSION THAT THE EVIDENCE DOES NOT
SUPPORT A FINDING OF DISPARATE APPLICATION OF THE RULES BY THE ACTIVITY
IN SUPPORT OF, OR ASSISTANCE TO, THE NAGE.
ACCORDINGLY, THIS OBJECTION IS HEREBY OVERRULED.
OBJECTION NO. 4
THE MTC ALLEGES THAT THE NAGE MADE PROMISES OF TANGIBLE ECONOMIC
BENEFITS INVOLVING (A) PAYMENT FOR SOLICITATION OF NEW MEMBERS; (B)
6-MONTHS FREE MEMBERSHIP; (C) FREE LEGAL SERVICES; (D) FREE INSURANCE.
(A) PAYMENT FOR SOLICITATION OF NEW MEMBERS.
THE PARTIES STIPULATED THAT THE SUM OF $1800 WERE PAID BY THE NAGE IN
ACCORDANCE WITH ITS OFFER TO PAY $20 FOR EACH GROUP OF FIVE MEMBERSHIP
APPLICATIONS OBTAINED. THE HEARING EXAMINER CONCLUDED THAT SUCH AN
OFFER AND THE RESULTING ACTIVITY HAD THE "NECESSARY TENDENCY TO CORRUPT
THE ELECTION PROCESS" BY ENCOURAGING FEE-SPLITTING.
THE HEARING EXAMINER CONCLUDED, HOWEVER, THAT INASMUCH AS THIS OFFER
DID NOT CONTINUE BEYOND THE FILING OF THE CHALLENGE BY THE NAGE IN
APRIL, ITS IMPACT UPON THE ELECTION WAS TOO REMOTE. I ADOPT THE
FINDINGS AND CONCLUSION OF THE HEARING EXAMINER AND, ACCORDINGLY, THIS
OBJECTION IS OVERRULED.
(B) 6-MONTHS FREE MEMBERSHIP
THE HEARING EXAMINER FOUND THAT THE OFFER OF FREE MEMBERSHIP WAS A "
. . .KEY TO THE NAGE CAMPAIGN . . . " AND THAT THIS WAS " . .
.OVERWHELMINGLY SUPPORTED BY TESTIMONY IN THE RECORD." HE INDICATED THAT
SINCE THE OFFER OF FREE DUES WAS MADE " . . . IN A CONTEXT OF OTHER
BENEFITS DELIBERATELY DESIGNED TO INDUCE ACCEPTANCE OF THAT OFFER" HE
WOULD ONLY CONSIDER IT IN THAT CONTEXT. HOWEVER, UPON REVIEW OF THE
RECORD I CONCLUDE THAT THE OFFER OF FREE MEMBERSHIP CAN BE TREATED AS A
DISTINCT ISSUE, AS ALLEGED.
WITH RESPECT TO THIS ISSUE, I CONCLUDE THAT IRRESPECTIVE OF WHETHER
SUCH AN OFFER IS CONDITIONED UPON THE OUTCOME OF THE ELECTION, IT WOULD
NOT IMPAIR THE EMPLOYEES' FREEDOM OF CHOICE IN THE ELECTION, SINCE A
WAIVER OR DEFERRAL OF DUES HAS VALUE TO THE EMPLOYEE ONLY IF THE UNION
WINS THE ELECTION. ACCORDINGLY, I FIND THAT THIS OBJECTION HAS NO MERIT
AND IT IS HEREBY OVERRULED.
(C) FREE LEGAL SERVICES
NAGE OFFERED THE SERVICES OF A LOCAL ATTORNEY TO HANDLE JOB-RELATED
GRIEVANCES FOR THE EMPLOYEES IN THE UNIT INVOLVED. THE HEARING EXAMINER
CONCLUDED THAT THIS OFFER OF FREE LEGAL REPRESENTATION WAS CONSISTENT
WITH THE PROVISIONS OF EXECUTIVE ORDER 10988 WHICH PERMITTED AN EMPLOYEE
TO BE REPRESENTED BY ANYONE ON HIS CHOOSING REGARDING THE PROCESSING OF
A GRIEVANCE. I ADOPT THE FINDINGS AND RECOMMENDATIONS OF THE HEARING
EXAMINER AND, ACCORDINGLY, THIS OBJECTION IS HEREBY OVERRULED.
OBJECTION NOS. 4(C) AND T: FREE INSURANCE AND MISREPRESENTATION /9/
THE MTC ALLEGES THAT THE OFFER OF FREE DEATH AND DISMEMBERMENT
INSURANCE WAS A TANGIBLE ECONOMIC INDUCEMENT. OBJECTION NO. 5 ALLEGES,
IN SUBSTANCE, THAT THE NAGE FALSELY REPRESENTED THAT EMPLOYEES WERE
ELIGIBLE FOR INSURANCE WITH TRAVELERS INSURANCE COMPANY IMMEDIATELY UPON
BECOMING A MEMBER.
WITH RESPECT TO THE ALLEGATION OF MISREPRESENTATION, IT IS UNDISPUTED
THAT ELIGIBILITY FOR PARTICIPATION UNDER THE TRAVELERS POLICY WAS
LIMITED TO THOSE WHO WERE ON DUES CHECK-OFF. THE HEARING EXAMINER
POINTS OUT THAT AT NO TIME DID THE NAGE ISSUE ANY STATEMENT IN ITS
LITERATURE INDICATING THAT IT WAS A SELF-INSURER ONLY FOR DUES-PAYING
MEMBERS NOT ON CHECK-OFF. HE FOUND THAT THE NAGE MISREPRESENTED WITH
RESPECT TO IMMEDIATE COVERAGE BY THE TRAVELERS INSURANCE COMPANY AND
THAT EFFORTS BY MTC TO COUNTER SUCH THAT THE GRANT OF FREE INSURANCE WAS
A TANGIBLE ECONOMIC BENEFIT WHICH INTERFERED WITH THE ELECTION.
THE NAGE ARGUES IN ITS EXCEPTIONS, AMONG OTHER THINGS, THAT IT IS NOT
UNUSUAL FOR SUCH OFFERS OF INSURANCE TO BE MADE IN FEDERAL SECTOR
ELECTION CAMPAIGNS AND THAT ITS OFFER OF FREE INSURANCE WAS AN ACCURATE
STATEMENT OF BENEFITS OF NAGE MEMBERSHIP. WITH RESPECT TO THE ALLEGED
MISREPRESENTATION, NAGE FURTHER CONTENDS IN ITS EXCEPTIONS THAT " . . .
THE TRUE FACTS WERE NOT ONLY OBTAINED BY MTC . . . THEY WERE PUBLICIZED
BY MTC ON MANY OCCASIONS . . . " THE MTC CONTENDS THAT THERE IS NO
HISTORICAL PRACTICE IN FEDERAL SECTOR OF OFFERING FREE INSURANCE AS IS
HERE INVOLVED, AND FURTHER, THAT WHILE IT HAD TIME TO REPLY, IT "HAD NO
OPPORTUNITY TO REPLY BECAUSE ITS EFFORTS TO MAKE KNOWN THE TRUTH WERE
UNAVAILING."
THE RECORD LEAVES NO DOUBT THAT THE OFFER OF FREE INSURANCE BY THE
NAGE IDENTIFIED TRAVELERS INSURANCE COMPANY AS THE CARRIER. THE
CAMPAIGN PUBLICITY CONCERNING THE OFFER OF FREE INSURANCE, REASONABLY
CONSTRUED, LEADS ONE TO CONCLUDE THAT, UPON BECOMING A MEMBER, THE
INSURANCE BENEFITS TOOK EFFECT IMMEDIATELY. MOREOVER, THE PAYMENT OF
$10,000 TO THE WIDOW OF A SHIPYARD EMPLOYEE AND THE EXTENSIVE
PUBLICATION OF THIS EVENT BY THE NAGE, UNDER THE CIRCUMSTANCES, TENDED
TO IMPLY THAT PAYMENT WAS MADE BY TRAVELERS.
ON THE OTHER HAND, AS EARLY AS FEBRUARY 1969, MTC PLACED THE
INSURANCE OFFER IN ISSUE. AGAIN IN JUNE OR JULY, MTC PUBLICATIONS
POINTED OUT THAT THE "POLICY IS WORTHLESS" UNLESS THE DUES WERE PAID AND
GAVE THE TELEPHONE NUMBER OF THE BRANCH MANAGER OF TRAVELERS INSURANCE
COMPANY FOR USE BY THE EMPLOYEES IN THE EVENT THAT THEY WISHED TO VERIFY
MTC'S ASSERTIONS. IN ADDITION, ON JULY 30, TRAVELERS EXPRESSLY ADVISED
MTC THAT DUES CHECK-OFF WAS REQUIRED FOR PARTICIPATION UNDER THE POLICY.
THIS REQUIREMENT WAS SET FORTH IN THE CERTIFICATE OF INSURANCE WHICH
HAD BEEN DISTRIBUTED PREVIOUSLY TO OVER 1,000 EMPLOYEES.
IN VIEW OF THE FOREGOING, I CONCLUDE THAT MTC NOT ONLY HAD THE
OPPORTUNITY, BUT IN FACT, DID RESPOND, THEREBY PROVIDING THE EMPLOYEES
WITH A BASIS FOR MAKING AN INDEPENDENT EVALUATION OF NAGE'S
MISREPRESENTATIONS REGARDING ITS OFFER OF INSURANCE. I FIND SUCH A
SITUATION IS HANDLED BEST THROUGH THE ELECTION CAMPAIGN PROCESS AND,
ACCORDINGLY, THE OBJECTION IS OVERRULED.
WITH RESPECT TO THE PROPRIETY OF THE OFFER ITSELF, THE HEARING
EXAMINER CONCLUDED THAT IT CONSTITUTED A TANGIBLE ECONOMIC BENEFIT. HE
RELIED UPON THE BOARD'S DECISION IN THE MATTER OF WAGNER ELECTRIC
CORPORATION, /10/ IN WHICH THE BOARD RULED:
" . . . WE PERCEIVE A SUBSTANTIVE DISTINCTION BETWEEN THIS GIFT OF
LIFE INSURANCE COVERAGE AND A WAIVER OF INITIATION FEES, WITH WHICH THE
REGIONAL DIRECTOR EQUATES IT. WHERE THERE IS A WAIVER OF INITIATION
FEES, THERE IS NO ECONOMIC ENHANCEMENT OF THE EMPLOYEES' ECONOMIC
POSITION, BUT MERELY AN AVOIDANCE OF A POSSIBLE FUTURE LIABILITY.
MOREOVER, SUCH WAIVER IS A CUSTOMARY PRACTICE IN ORGANIZING CAMPAIGNS,
IN CONTRAST, THE GIFT OF IMMEDIATE LIFE INSURANCE COVERAGE IS A TANGIBLE
ECONOMIC BENEFIT AND ITS MOST UNUSUAL.
IT IS OUR VIEW THAT THE GIFT OF LIFE INSURANCE COVERAGE TO THE
PROSPECTIVE VOTERS IS MORE AKIN TO AN EMPLOYER'S GRANT OF A WAGE
INCREASE IN ANTICIPATION OF A REPRESENTATION ELECTION THAN IT IS TO A
WAIVER OF UNION INITIATION FEES AND THAT ITS SUBJECTS THE DONEES TO A
CONSTRAINT TO VOTE FOR THE DONOR UNION. WE CONCLUDE THAT BY SUCH A GIFT
THE PETITIONER DESTROYED THE ATMOSPHERE WHICH THE BOARD SEEKS TO
PRESERVE FOR ITS ELECTION IN ORDER THAT EMPLOYEES MAY EXERCISE FREEDOM
OF CHOICE ON REPRESENTATION QUESTIONS . . . "
IN MY VIEW, THE WAGNER ELECTRIC RULE IS NOT APPLICABLE INSOFAR AS THE
TRAVELERS POLICY IS CONCERNED. THE CIRCUMSTANCES UNDERLYING THE WAGNER
CASE INVOLVED AN IMMEDIATE GIFT OF LIFE INSURANCE, WHEREAS THE OFFER OF
"FREE INSURANCE" WITH TRAVELERS IN THIS CASE WAS, IN FACT, CONTINGENT
UPON NAGE WINNING THE ELECTION. THE CLEAREST INDICATION OF THIS, IS TO
BE FOUND IN THE CERTIFICATE OF INSURANCE REQUIREMENT FOR ELIGIBILITY TO
PARTICIPATE. THERE IS NO CONTENTION, NOR ANY EVIDENCE, THAT NAGE AT ANY
TIME EXPRESSLY MADE ITS OFFER OF FREE TRAVELERS INSURANCE CONTINGENT
UPON THE OUTCOME OF THE ELECTION. NEVERTHELESS, THE FACT THAT SUCH
CONTINGENCY NECESSARILY EXISTED WAS MADE KNOWN THROUGHOUT THE PERIOD OF
APPROXIMATELY 10 MONTHS PRECEDING THE ELECTION BY MTC IN COUNTERING
NAGE'S REPRESENTATIONS OF FREE INSURANCE.
ON THE BASIS OF THESE COUNTER-ASSERTIONS BY MTC, AS WELL AS THE
EXPRESS QUALIFICATIONS FOR ELIGIBILITY SET FORTH IN THE CERTIFICATE OF
INSURANCE, PLUS THE FACT THAT THE MATTER OF THE TRAVELERS POLICY WAS
WIDELY DISCUSSED THROUGHOUT THE SHIPYARD, IT IS REASONABLE TO ASSUME
THAT A SUBSTANTIAL NUMBER OF EMPLOYEES WERE AWARE THAT THE TRAVELERS
POLICY WAS CONTINGENT UPON THE OUTCOME OF THE ELECTION. THUS, IF A
SHIPYARD EMPLOYEE WANTED TRAVELERS COVERAGE, HE WOULD HAVE BEEN LED TO
VATE FOR NAGE SINCE A NAGE VICTORY WAS ESSENTIAL TO ENTERING INTO A DUES
DEDUCTION AGREEMENT WITH THE ACTIVITY. UNDER ALL THE CIRCUMSTANCES, IT
IS CONCLUDED THAT THE OFFER NECESSARILY HAD TO BE CONSTRUED BY THE
EMPLOYEES AS BEING CONTINGENT UPON THE OUTCOME OF THE ELECTION.
THERE IS ANOTHER ASPECT TO THE NAGE GIFT OF FREE INSURANCE COVERAGE
WHICH MUST BE CONSIDERED. NAGE GAVE WIDE AND CONTINUING PUBLICITY THAT
EMPLOYEES' BENEFICIARIES WOULD RECEIVE A FREE $10,000 ACCIDENTAL DEATH
BENEFIT, INCLUDING THE PUBLICITY GIVEN TO THE PAYMENT OF $10,000. NO
EFFORT WAS MADE TO DIVULGE TO SHIPYARD EMPLOYEES THE SOURCE OF SUCH
PAYMENT.
THE RECORD INDICATES THAT A 1968 NAGE CONVENTION RESOLUTION PROVIDED
THAT ANYONE SIGNING AN 1187 FORM WOULD BE CONSIDERED A MEMBER OF THE
NAGE AND THAT UNTIL THE 1187S COULD BE ACTIVATED BY THE EMPLOYER, THE
NAGE GENERAL FUND WOULD ABSORB AN INSURANCE CLAIM. THIS RESOLUTION
APPARENTLY ENABLED IT TO MAKE THE $10,000 INSURANCE PAYMENT THUS
ESTABLISHING THE FACT THAT EMPLOYEES HAD IMMEDIATE INSURANCE COVERAGE.
HOWEVER, REGARDLESS OF WHETHER THE EMPLOYEES BELIEVED THAT SUCH PAYMENT
DERIVED FROM THE TRAVELERS POLICY, OR FROM NAGE'S GENERAL FUND OR
PRIVATE SOURCES, THE IMPACT UPON THE EMPLOYEES WAS, SIMPLY, THAT BY
SIGNING AN 1187 FORM, THEIR BENEFICIARIES QUALIFIED FOR THE INSURANCE
BENEFITS.
IT IS WELL-ESTABLISHED IN THE PRIVATE SECTOR THAT ANY PROMISE OR
OFFER OF BENEFIT, EXCEPT WAIVER OF DUES AND INITIATION FEE, WHICH IS
MADE CONTINGENT UPON THE OUTCOME OF THE ELECTION, NECESSARILY
CONSTITUTES INTERFERENCE WITH THE FREEDOM OF CHOICE BY THE EMPLOYEES.
SIMILARILY, IT IS ESTABLISHED THAT A GIFT OF IMMEDIATE LIFE INSURANCE IN
AN ELECTION CAMPAIGN CONSTITUTES A TANGIBLE ECONOMIC BENEFIT WHICH
IMPAIRS THE EMPLOYEES' FREEDOM OF CHOICE.
I CONCLUDE, IN AGREEMENT WITH THE HEARING EXAMINER, THAT NO LESS
RIGOROUS STANDARDS SHOULD OBTAIN IN REPRESENTATION ELECTIONS AMONG
FEDERAL EMPLOYEES THAN THOSE WHICH PREVAIL IN THE PRIVATE SECTOR. IN
VIEW OF THE FOREGOING, I FIND THIS OBJECTION TO HAVE MERIT BASED UPON
THE GIFT OF IMMEDIATE LIFE INSURANCE COVERAGE PROVIDED THROUGH THE NAGE
GENERAL FUND COVERAGE, AS WELL AS UPON THE CONTINGENT NATURE OF THE
"FREE INSURANCE" ASSOCIATED WITH THE TRAVELERS POLICY. ACCORDINGLY, THE
ELECTION CONDUCTED ON DECEMBER 4, 1969 IS HEREBY SET ASIDE AND A SECOND
ELECTION WILL BE CONDUCTED AS DIRECTED BELOW.
IT IS HEREBY DIRECTED THAT A SECOND ELECTION BE CONDUCTED AS EARLY AS
POSSIBLE, BUT NOT LATER THAN 45 DAYS FROM THE DATE BELOW, UNDER THE
SUPERVISION OF THE APPROPRIATE AREA ADMINISTRATOR IN THE UNIT SET FORTH
IN THE ELECTION AGREEMENT, DATED NOVEMBER 25, 1969. ELIGIBLE TO VOTE
ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD
IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT
WORK DURING THAT PERIOD BECAUSE THEY WERE ILL, ON VACATION OR ON
FURLOUGH INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON AT
THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED
FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN
REHIRED OR REINSTATED BEFORE THE ELECTION DATE. IN CONFORMANCE WITH THE
REQUIREMENTS OF EXECUTIVE ORDER 11491, IN ADDITION TO THOSE NOT ELIGIBLE
TO VOTE AS SET FORTH UNDER PARAGRAPH 2 OF THE ELECTION AGREEMENT, ARE
ANY EMPLOYEES AS MANAGEMENT OFFICIALS AND GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
THE AREA ADMINISTRATOR IS HEREBY AUTHORIZED TO ISSUE THE APPROPRIATE
CERTIFICATION OF REPRESENTATIVE OR CERTIFICATION OF RESULTS.
DATED, WASHINGTON, D.C.
APRIL 26, 1971
/1/ THE OBJECTIONS WERE FILED BY METAL TRADES DEPARTMENT, AFL-CIO FOR
AND ON BEHALF OF THE INTERVENOR.
/2/ FOLLOWING THE GRANTING OF THE NAGE'S REQUEST FOR EXTENSION OF
TIME, THE LAST OF SUCH DOCUMENTS WAS TIMELY FILED BY THE NAGE ON
FEBRUARY 12, 1971.
/3/ ACCOMPANYING ITS BRIEF IN SUPPORT OF EXCEPTIONS, NAGE FILED A
MOTION REQUESTING THAT I DISQUALIFY MYSELF FROM RETAINING THIS CASE FOR
REVIEW AND DECISION. I AM MINDFUL OF MY OATH OF OFFICE UNDER WHICH I
ASSUMED THE OBLIGATION TO CARRY OUT MY ASSIGNED DUTIES AND
RESPONSIBILITIES WITH FULL REGARD FOR THE PUBLIC INTEREST. SINCE
EFFECTUATION OF SUCH DUTIES INCLUDES THE REQUIREMENT TO ADMINISTER AND
IMPLEMENT CERTAIN PROVISIONS OF EXECUTIVE ORDER 11491, I SHALL RETAIN
JURISDICTION OVER THIS PROCEEDING. ACCORDINGLY, THE MOTION FOR
DISQUALIFICATION IS HEREBY DENIED.
NAGE ALSO MADE A REQUEST FOR ORAL ARGUMENT. INASMUCH AS BRIEFS FULLY
SET FORTH THE POSITIONS OF THE PARTIES, ORAL ARGUMENT AT THIS TIME DOES
NOT APPEAR WARRANTED.
/4/ THE MTC FILED A MOTION SEEKING RECONSIDERATION OF ITS EARLIER
CHALLENGE TO THE VALIDITY OF THE NAGE'S SHOWING OF INTEREST ON THE BASIS
THAT IT WAS OBTAINED BY IMPERMISSIBLE DEVICES WHICH RENDER IT INVALID.
HAVING PASSED UPON THIS MATTER IN THE DETERMINATION OF NOVEMBER 21,
1969, RE-EXAMINATION OF THIS ISSUE AT THIS TIME IS FORECLOSED. THE
PRESENT PROCEEDING WHILE INVOLVING ESSENTIALLY THE SAME ALLEGATIONS,
RELATES ONLY TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION AND
THEREFORE REQUIRES A DETERMINATION LIMITED SOLELY TO THIS ISSUE.
ACCORDINGLY, THE MOTION IS DENIED.
/5/ OBJECTION 1(B) CONTAINS ALLEGATIONS RELATING THE THE CHARLESTON
AND BOSTON NAVAL SHIPYARDS. SINCE SUCH ALLEGATIONS ARE NECESSARILY
BEYOND THIS SCOPE OF THIS PROCEEDING, THEY ARE NOT CONSIDERED HEREIN.
/6/ THE DECISION AND DIRECTION OF HEARING NOTED, "OBJECTION 10(E)
FOCUSES ON AN ALLEGEDLY UNLAWFUL NO-ELECTIONEERING RULE IN EFFECT AT THE
SHIPYARD BETWEEN AUGUST 8, 1969 AND OCTOBER 7, 1969. THE VALIDITY OF
THE CHALLENGED RULE AND ITS ENFORCEMENT WILL BE CONSIDERED IN THE COURSE
OF THE HEARING . . ."
/7/ THE ABSENCE OF MTC AS A SIGNATORY TO EITHER OF THE ELECTION
AGREEMENTS, I.E., OCTOBER 7 AND NOVEMBER 25, IS NOT SIGNIFICANT TO A
DETERMINATION OF THE OBJECTIONS INVOLVED HEREIN.
/8/ CF. CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, IN WHICH SIMILAR
RESTRICTIVE RULES WHICH WERE PUT INTO EFFECT AFTER JANUARY 1, 1970 WERE
FOUND TO BE IN VIOLATION OF EXECUTIVE ORDER 11491.
/9/ NAGE'S OFFER OF FREE INSURANCE, WHICH WAS INCLUDED AMONG ITS
ORGANIZATIONAL APPEALS, APPEARED IN VARIOUS PUBLICATIONS, DATED
VARIOUSLY FROM 2/24/69 (VIRGINIAN-PILOT) TO 11/30/69 (THE FEDNEWS). THE
HEARINGS EXAMINER NOTED THAT FREE INSURANCE CONTINUED TO BE A LIVE ISSUE
UP TO THE TIME OF THE ELECTION.
INASMUCH AS THE COMPLAINED-OF CONDUCT THUS CONTINUED TO WITHIN A FEW
DAYS OF THE ELECTION, I DEEM IT UNNECESSARY TO ESTABLISH A SPECIFIC
CUT-OFF DATE IN MY CONSIDERATION OF THESE REMAINING OBJECTIONS.
/10/ 167 NLRB 532, 66 LRRM 1072
NORFOLK NAVAL SHIPYARD
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, INC.
AND
METAL TRADES DEPARTMENT, AFL-CIO /1/
L. NEAL ELLIS, ESQ., NAVY DEPARTMENT,
OFFICE OF CIVILIAN MANPOWER MANAGEMENT,
WASHINGTON, D.C., FOR THE EMPLOYER.
GORDON P. RAMSEY, ESQ. (GADSBY AND HANNAH),
WASHINGTON, D.C., FOR THE PETITIONER,
PATRICK C. O'DONOGHUE, ESQ., AND DONALD
CAPUANO, ESQ. (DOUGLAS L. LESLIE, ESQ.,
ON THE BRIEF), WASHINGTON,D.C., FOR THE
INTERVENOR.
BEFORE: SIDNEY J. BARBAN, HEARING EXAMINER
THIS PROCEEDING WAS HEARD AT NORFOLK, VIRGINIA, ON AUGUST 17, 18, 19,
20, 21, 25 AND 26,1970, UPON A NOTICE OF HEARING ISSUED ON JULY 28,
1970, BY THE REGIONAL ADMINISTRATOR FOR THE PHILADELPHIA REGION,
PURSUANT TO A DECISION AND DIRECTION OF HEARING BY THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS, (HEREIN REFERRED TO
AS THE ASSISTANT SECRETARY), DATED JULY 16, 1970, UNDER THE AUTHORITY OF
EXECUTIVE ORDER 11491, AND IN ACCORDANCE WITH SECTION 202.20(D) OF THE
RULES AND REGULATIONS OF THE ASSISTANT SECRETARY.
THE ISSUES HEARD CONCERN OBJECTIONS FILED BY MTC TO AN ELECTION HELD
AMONG A UNIT OF EMPLOYEES OF THE ABOVE-NAMED EMPLOYER, (HEREIN REFERRED
TO AS THE EMPLOYER), ON DECEMBER 4, 1969 (ALL DATES HEREIN ARE IN 1969
UNLESS OTHERWISE NOTED), IN WHICH THE ABOVE-NAMED PETITIONER (HEREIN
REFERRED TO AS NAGE) RECEIVED THE MAJORITY OF THE VOTES CAST. ALL
PARTIES WERE REPRESENTED AT THE HEARING BY COUNSEL, WHO WERE GIVEN FULL
OPPORTUNITY TO ADDUCE EVIDENCE, EXAMINE AND CROSS EXAMINE WITNESSES,
SUBMIT ARGUMENTS AND FILE BRIEFS.
UPON THE ENTIRE RECORD IN THIS MATTER /2/, FROM OBSERVATION OF THE
WITNESSES, AND AFTER DUE CONSIDERATION OF THE BRIEFS FILED BY THE
EMPLOYER, NAGE, AND MTC, THE HEARING EXAMINER MAKES THE FOLLOWING:
AS SET FORTH IN MORE DETAIL HEREINAFTER, AN ELECTION WAS CONDUCTED
AMONG CERTAIN EMPLOYEES OF THE EMPLOYER ON DECEMBER 4, UNDER THE
PROVISIONS OF EXECUTIVE ORDER 10988 THEN IN EFFECT. MTC FILED TIMELY
OBJECTIONS TO THE ELECTION WITH THE EMPLOYER, WHICH, ON DECEMBER 19,
OVERRULED THE OBJECTIONS. TIME FOR APPEAL OF THIS DECISION WAS EXTENDED
TO JANUARY 5, 1970.
EFFECTIVE JANUARY 1, 1970, EXECUTIVE ORDER 10988 WAS REVOKED BY
EXECUTIVE ORDER 11491, WHICH SET FORTH THE POLICIES GOVERNING "OFFICERS
AND AGENCIES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT IN ALL DEALINGS
WITH FEDERAL EMPLOYEES AND ORGANIZATIONS REPRESENTING THOSE EMPLOYEES"
FROM THAT DATE.
AFTER JANUARY 1, 1970 MTC PERFECTED ITS APPEAL TO THE DEPARTMENT OF
NAVY (HEREIN REFERRED TO AS THE NAVY), AND INITIATED PROCEEDINGS TO HAVE
THE ASSISTANT SECRETARY DETERMINE WHICH OF THE TWO EXECUTIVE ORDERS WERE
APPLICABLE AND TO HAVE THE MERITS OF THE OBJECTIONS TO THE ELECTION
DETERMINED PURSUANT TO EXECUTIVE ORDER 11491. AS A RESULT OF THESE
ACTIONS, THE ASSISTANT SECRETARY, ON FEBRUARY 25, 1970, DETERMINED THAT
"INASMUCH AS THIS MATTER IS BEING FILED WITH THE DEPARTMENT OF LABOR
AFTER THE EFFECTIVE DATE OF EXECUTIVE ORDER 11491, IT WILL BE PROCESSED
IN ACCORDANCE WITH EXECUTIVE ORDER 11491 AND THE REGULATIONS OF THE
ASSISTANT SECRETARY WHICH APPEARED IN THE FEBRUARY 4 ISSUE OF THE
FEDERAL REGISTER."
AFTER INVESTIGATION OF THE MTC OBJECTIONS, THE REGIONAL ADMINISTRATOR
HAVING JURISDICTION OF THE MATTER ISSUED A REPORT, DATED MAY 23, 1970,
OVERRULING CERTAIN OBJECTIONS, BUT FINDING THAT A HEARING WAS REQUIRED
ON OTHER OBJECTIONS WHICH "RAISE RELEVANT QUESTIONS OF FACT WHICH MAY
HAVE AFFECTED THE ELECTION." THE ASSISTANT SECRETARY, ON JULY 16, 1970,
SUSTAINED THE REGIONAL ADMINISTRATOR AND DIRECTED THAT A NOTICE OF
HEARING BE ISSUED DESIGNATING A HEARING EXAMINER "TO TAKE EVIDENCE AND
MAKE FACTUAL FINDINGS AND RECOMMENDATIONS" WITH RESPECT TO THE MTC
OBJECTIONS AS SPECIFICALLY SET FORTH HEREINAFTER.
NAGE FILED A PETITION FOR REVIEW OF THE ASSISTANT SECRETARY'S
DECISION AND DIRECTION OF HEARING WITH THE FEDERAL LABOR RELATIONS
COUNCIL, CONTENDING THAT "THE ASSISTANT SECRETARY IS WITHOUT
JURISDICTION UNDER EXECUTIVE ORDER 11491 TO DETERMINE QUESTIONS
INVOLVING THE CONDUCT OF A REPRESENTATION ELECTION HELD PURSUANT TO
EXECUTIVE ORDER 10988." (MTC ALSO APPEALED TO THE COUNCIL FROM THE
ASSISTANT SECRETARY'S DECISION, BUT THIS NEED NOT BE CONSIDERED HERE.)
ACCORDING TO THE BRIEF FILED BY NAGE IN THIS MATTER, THE COUNCIL HAS
DECLINED TO RULE AT THIS TIME ON THE ASSISTANT SECRETARY'S JURISDICTION
IN THIS MATTER, WITHOUT PREJUDICE TO THE RIGHT TO APPEAL ON THIS ISSUE
FROM THE ASSISTANT SECRETARY'S FINAL DECISION IN THIS MATTER. (NAGE
BRIEF, P. 32)
IN ITS BRIEF (P. 31), NAGE RENEWS ITS MOTION MADE AT THE HEARING THAT
THE HEARING EXAMINER FINDS THAT "THE ELECTION IN THIS CASE WAS INITIATED
AND CONDUCTED UNDER THE PROVISIONS OF E.O. 10988 . . . THAT THERE IS NO
LEGAL AUTHORITY FOR THE ASSISTANT SECRETARY TO APPLY E.O. 11491
RETROACTIVELY TO THIS ELECTION . . . THAT THIS PROCEEDING SHOULD
THEREFORE BE DISMISSED." NAGE ARGUES THAT THE ACTION OF THE COUNCIL IN
DEFERRING DECISION WITH RESPECT TO THE ASSISTANT SECRETARY'S
JURISDICTION IN THIS MATTER REQUIRES THE HEARING EXAMINER TO PASS UPON
"NAGE'S CHALLENGE TO THE ASSISTANT SECRETARY'S SUBJECT MATTER
JURISDICTION IN THIS CASE." (BRIEF, P. 34)
THERE IS NO QUESTION BUT THAT THE ASSISTANT SECRETARY HAS CONSIDERED
THE ISSUE HERE PRESENTED AND HAS DETERMINED THAT JURISDICTION SHOULD BE
ASSERTED UNDER EXECUTIVE ORDER 11491. THIS ISSUE WAS NOT DELEGATED TO
THE HEARING EXAMINER. INASMUCH AS THE HEARING EXAMINER, IN A PROCEEDING
SUCH AS THIS, ACTS AS AN AGENT OF THE ASSISTANT SECRETARY, CF. ROCHESTER
METAL PRODUCTS, 94 NLRB 1779, AT 1780, TO HEAR AND CONSIDER THE MATTERS
SET FORTH IN THE PAPERS DIRECTING THE HEARING IN THIS MATTER, I CONSIDER
MYSELF BOUND BY THE PRIOR DETERMINATION OF THE ASSISTANT SECRETARY WITH
RESPECT TO THE ASSERTION OF JURISDICTION.
FURTHER, IT APPEARS TO ME THAT THE DECISION OF THE ASSISTANT
SECRETARY IS ASSERTING JURISDICTION UNDER EXECUTIVE ORDER 11491 IS
MANIFESTLY CORRECT. SINCE NAGE SEEKS PRESENT RECOGNITION AS THE
EXCLUSIVE REPRESENTATIVE OF A UNIT OF FEDERAL EMPLOYEES, THIS WOULD SEEM
POSSIBLE ONLY UNDER THE AUTHORITY OF E.O. 11491, FOR THAT IS THE ONLY
AUTHORITY PRESENTLY IN EFFECT. THOUGH NAGE ARGUES THAT ONLY THE
PROCEDURES OF THE PRIOR EXECUTIVE ORDER SHOULD BE UTILIZED, WITH THE
SUGGESTION THAT THE PRESENT DISPUTE MUST BE LEFT TO THE EMPLOYER FINALLY
FOR RESOLUTION, NO BASIS APPEARS FOR THE PRESENT INITIATION OF
PROCEDURES UNDER THE EXPIRED EXECUTIVE ORDER IN PREFERENCE TO THE
PROCEDURES OF THE CURRENT ORDER, AND RULES AND REGULATIONS ISSUED
THEREUNDER, DESIGNED FOR THE RESOLUTION OF SUCH DISPUTES. /3/ FURTHER,
CONTRARY TO THE SUGGESTION OF NAGE, THE TRUST OF THE PRESENT EXECUTIVE
ORDER IS TO REMOVE THE RESOLUTION OF DISPUTES SUCH AS THE PRESENT FROM
THE EMPLOYING AGENCY AND TRANSFER SUCH RESOLUTION (WITH AN EXCEPTION NOT
HERE PERTINENT) TO THE ASSISTANT SECRETARY, SUBJECT TO POSSIBLE REVIEW
BY THE FEDERAL LABOR RELATIONS COUNCIL. THE PROCEDURES WHICH NAGE SEEMS
TO SUGGEST WOULD SERVE TO FRUSTRATE THAT POLICY.
NAGE ALSO SUGGESTS THAT THE ACTION TAKEN BY THE ASSISTANT SECRETARY
HERE IS NOT CONSISTENT WITH ACTIONS TAKEN IN RESPECT TO OTHER MATTERS.
IT IS FURTHER ARGUED THAT ANOTHER HEARING EXAMINER IN ANALAGOUS
CIRCUMSTANCES HAS TAKEN A DIFFERENT POSITION. THESE ARE MATTERS MORE
APPROPRIATE FOR THE CONSIDERATION OF THE ASSISTANT SECRETARY. I SHALL
THEREFORE PROCEED TO THE CONSIDERATION OF THE MERITS OF THE ISSUES
RAISED BY THE OBJECTIONS WHICH I HAVE BEEN DIRECTED TO HEAR.
PURSUANT TO AN ELECTION AGREEMENT (NOT SIGNED BY MTC), DATED NOVEMBER
25, A SECRET BALLOT ELECTION WAS CONDUCTED ON DECEMBER 4, IN ACCORDANCE
WITH THE PROVISIONS OF EXECUTIVE ORDER 10988, IN THE FOLLOWING UNIT OF
THE EMPLOYER'S EMPLOYEES:
ALL NON-SUPERVISORY GRADED EMPLOYEES IN INVENTORY BRANCH OF THE
PLANNING DIVISION, SUPPLY DEPARTMENT; ALL NON-SUPERVISORY GRADED
EMPLOYEES IN THE FIRE DIVISION, ADMINISTRATIVE DEPARTMENT; ALL UNGRADED
EMPLOYEES BELOW THE LEVEL OF FOREMAN (LEADING MAN) IN RATING AUTHORIZED
FOR USE AT AND LISTED ON THE NORFOLK NAVAL SHIPYARD'S SCHEDULE OF WAGES
IN THE PLANNING, PRODUCTION, PUBLIC WORKS, SUPPLY AND ADMINISTRATIVE
DEPARTMENTS, EXCEPT THOSE EMPLOYEES IN THE FOLLOWING UNGRADED RATINGS:
INSPECTOR (ALL OPTIONS), SHIP PROGRESSMEN (ALL OPTIONS), SHIP SCHEDULE
(ALL OPTIONS), SHIP SURVEYOR (ALL OPTIONS), PATTERN-MAKER, SHOP PLANNER
PATTERN-MAKER, APPRENTICE PATTERN-MAKER.
THE RESULTS OF THE ELECTION WERE AS FOLLOWS:
NUMBER OF ELIGIBLE VOTERS, 7233
VOID BALLOTS, 36
VOTES CAST FOR PETITIONER (NAGE), 3370
VOTES CAST FOR INTERVENOR (MTC), 2690
VOTES CAST AGAINST PARTICIPATING LABOR ORGANIZATIONS, 143
VALID VOTES COUNTED, 6203
CHALLENGED BALLOTS, 58
VALID VOTES PLUS CHALLENGED BALLOTS, 6261
CHALLENGES WERE NOT SUFFICIENT IN NUMBER TO AFFECT THE RESULTS OF THE
ELECTION.
ON DECEMBER 16, MTC FILED TIMELY OBJECTIONS TO THE ELECTION WITH THE
EMPLOYER, NUMBERING SOME 25 PARAGRAPHS AND SUBDIVISIONS. THE EMPLOYER
ISSUED ITS DECISION OVERRULING THESE OBJECTIONS ON DECEMBER 19. AS
PREVIOUSLY NOTED, MTC WAS GRANTED UNTIL JANUARY 5, 1970, TO PERFECT ITS
APPEAL. THEREAFTER, MTC TIMELY FILED AN APPEAL WITH THE NAVY, AND ON
THE SAME DAY, MADE A REQUEST TO THE ASSISTANT SECRETARY FOR A RULING AS
TO WHETHER EXECUTIVE ORDER 10988 OR EXECUTIVE ORDER 11491 WAS APPLICABLE
IN THE CIRCUMSTANCES, WITH A REQUEST THAT THE NAVY WITHHOLD ACTION
PENDING THE DECISION OF THE ASSISTANT SECRETARY.
ON JANUARY 30, 1970, THE NAVY ISSUED A DECISION AFFIRMING THE PRIOR
DECISION OF THE EMPLOYER OVERRULING THE MTC OBJECTIONS, AND ADVISING
THAT A REQUEST FOR REVIEW MIGHT BE FILED WITH THE DEPARTMENT OF LABOR
WITHIN 15 DAYS. IN THIS CONNECTION, IT WAS STATED IN THE LETTER
ADDRESSED TO A REPRESENTATIVE OF MTC ON THAT DATE:
THE DEPARTMENT OF THE NAVY RECOGNIZES THAT THE ASSISTANT SECRETARY OF
LABOR MAY ULTIMATELY TAKE JURISDICTION IN THIS CASE AND CAN DO SO
WHETHER UNDER EXECUTIVE ORDER 10988 OR 11491. HOWEVER, IT IS THE
CONSIDERED JUDGMENT OF THE DEPARTMENT OF THE NAVY THAT ITS DECISION WITH
RESPECT TO THIS APPEAL WOULD BE OF MATERIAL ASSISTANCE TO THE ASSISTANT
SECRETARY OF LABOR IN DECIDING THIS MATTER, IF APPEALED TO HIM. NAVY
ALSO WISHES TO HAVE ITS POSITION ON THE INSTANT OBJECTIONS PART OF THE
RECORD UPON WHICH POTENTIAL RESOLUTION WILL BE BASED.
THEREAFTER, AS NOTED ABOVE, UPON THE APPEAL OF MTC, THE ASSISTANT
SECRETARY ASSERTED JURISDICTION OVER THIS MATTER UNDER EXECUTIVE ORDER
11491. THE MTC OBJECTIONS TO THE ELECTION WERE INVESTIGATED BY THE
REGIONAL ADMINISTRATOR WHO ISSUED A REPORT FINDING THAT CERTAIN OF THE
OBJECTIONS RAISED RELEVANT QUESTIONS OF FACT REQUIRING A HEARING ON
THOSE OBJECTIONS. ON APPEAL, THE ASSISTANT SECRETARY AFFIRMED THE
FINDINGS AND CONCLUSIONS OF THE REGIONAL ADMINISTRATOR AND DIRECTED THAT
A HEARING BE HELD ON THE FOLLOWING MTC OBJECTIONS:
1. FOR AT LEAST THE LAST YEAR, THE DEPARTMENT OF NAVY HAS ENGAGED IN
A COURSE OF CONDUCT OF FAVORITISM, ASSISTANCE AND SUPPORT OF NAGE. THE
IMPROPER CONDUCT OF THE DEPARTMENT OF NAVY INCLUDES BUT IS NOT LIMITED
TO THE FOLLOWING ACTIONS:
(B) ITS DISCRIMINATORY APPLICATION OF FEDERAL PERSONNEL MANUAL SYSTEM
LETTER NO. 711-6 CAPTIONED "GUIDANCE FOR AGENCIES IN DEALING WITH
EMPLOYEE ORGANIZATIONS COMPETING FOR EXCLUSIVE RECOGNITION." PARAGRAPH 1
OF THIS LETTER ESTABLISHES RULES FOR CAMPAIGNING DURING THE PERIOD
FOLLOWING THE GRANT OF EXCLUSIVE RECOGNITION UNTIL A VALID, TIMELY
CHALLENGE HAS BEEN PRESENTED. IN GENERAL, THIS PARAGRAPH LIMITS A UNION
THAT DOES NOT HAVE EXCLUSIVE RECOGNITION TO POST NOTICE OF MEETINGS AND
THE SOLICITATION OF AUTHORIZATION CARDS DURING NON-WORKING HOURS.
DISTRIBUTION OF CAMPAIGN LITERATURE IS STRICTLY PROHIBITED WITHIN A
SHIPYARD. AT THE NORFOLK NAVAL SHIPYARD WHERE THE MTC HELD EXCLUSIVE
RECOGNITION, THE DEPARTMENT OF NAVY PERMITTED NAGE, IN THE MONTHS
PROCEDING NAGE'S FILING OF A CHALLENGE, TO DISTRIBUTE CAMPAIGN
LITERATURE, OBTAIN AUTHORIZATIONS, ETC. DURING WORKING HOURS. ALTHOUGH
PROTESTS WERE FILED BY THE MTC TO NAGE VIOLATIONS OF FPM LETTER 711-6,
NO EFFECTIVE ACTION WAS TAKEN BY THE DEPARTMENT OF NAVY. SIMILARLY, THE
CHARLESTON NAVY SHIPYARD WHERE ANOTHER MTC HAS EXCLUSIVE RECOGNITION, NO
EFFECTIVE ACTION HAS BEEN TAKEN ON MTC PROTESTS TO EXTENSIVE AND
CONTINUING VIOLATIONS BY NAGE AND FPM LETTER NO. 711-6. DURING THE LAST
THREE MONTHS, NAGE CAMPAIGN LITERATURE HAS BEEN DISTRIBUTED WEEKLY BY
THE BUSHEL BASKET IN THE CHARLESTON YARD. NO CHALLENGE CAN BE FILED IN
CHARLESTON UNTIL DECEMBER 19. ON THE OTHER HAND, AT THE BOSTON SHIPYARD
WHERE NAGE HAS EXCLUSIVE RECOGNITION AND THE MTC IS EMBARKED ON A
CAMPAIGN, FPM LETTER NO. 711-6 IS NOT ONLY BEING ENFORCED BUT IT IS
BEING ARBITRARILY INTERPRETED BY THE DEPARTMENT OF NAVY TO PROHIBIT MTC
ADHERENTS FROM EVEN HAVING AUTHORIZATION CARDS SIGNED WITHIN THE
SHIPYARD DURING THE NON-WORKING HOURS. IN BOSTON THE TERM "LITERATURE"
IN FPM LETTER NO. 711-6 IS BEING INTERPRETED AS INCLUDING A MTC
"AUTHORIZATION CARD." SUCH DISPARATE AND DISCRIMINATORY CONDUCT EVIDENCE
A CLEAR PATTERN BY THE DEPARTMENT OF NAVY OF SUPPORT AND ASSISTANCE OF
NAGE. /4/
4. NAGE'S PROMISES TO ALL NORFOLK NAVAL SHIPYARD WAGE BOARD
EMPLOYEES OF TANGIBLE ECONOMIC BENEFITS THAT WERE MATERIAL INDUCEMENTS.
SPECIFICALLY, THESE TANGIBLE ECONOMIC INDUCEMENTS WERE (A) A GIFT OF SIX
MONTHS' FREE DUES TO BE PAID FOR BY FELLOW SHIPYARD NAGE MEMBERS; (B) A
GIFT OF A FREE TWENTY-FOUR HOUR DEATH AND DISMEMBERMENT INSURANCE POLICY
HELD BY TRAVELERS INSURANCE COMPANY; (C) MONETARY REWARD OF $4.00 TO
ALL WAGE BOARD EMPLOYEES FOR EACH NEW NAGE MEMBER SOLICITED; AND (4)
FREE LEGAL SERVICES WITHOUT COST TO NAGE MEMBERS, NAGE FIRST MADE THESE
PROMISES OF TANGIBLE ECONOMIC BENEFITS IN ITS CAMPAIGN FOR FILING A
CHALLENGE. THESE PROMISES WERE REPEATED AGAIN AND AGAIN IN NAGE
CAMPAIGN LITERATURE DISTRIBUTED IN THE SHIPYARD TO ALL EMPLOYEES DURING
THE ELECTION CAMPAIGN.
5. NAGE'S REPEATED FALSE REPRESENTATION REGARDING THE PROMISE OF
FREE INSURANCE, NAMELY THAT, IMMEDIATELY UPON JOINING NAGE, ANY WAGE
BOARD EMPLOYEE WAS ELIGIBLE FOR THE FREE TRAVELERS INSURANCE. NONE OF
THE NORFOLK EMPLOYEES MET THE THIRD REQUIREMENT FOR ELIGIBILITY UNDER
THE TRAVELERS INSURANCE POLICY AND, ALTHOUGH PRESENTED WITH DOCUMENTARY
EVIDENCE FROM THE TRAVELERS INSURANCE COMPANY AS TO THE FALSITY OF ITS
REPRESENTATIONS, NAGE CONTINUED TO REITERATE AND REPEAT ITS FALSE
REPRESENTATIONS REGARDING THE TRAVELERS INSURANCE RIGHT UP TO THE DAY OF
THE ELECTION. POINTING UP THE MAGNITUDE OF NAGE'S FLAGRANT FALSEHOODS
REGARDING THE TRAVELERS INSURANCE IS THE PIECE OF CAMPAIGN LITERATURE
ENTITLED "NAGE BULLETIN" CONTAINING A PHOTOGRAPH OF WAYNE HAMPTON
PRESENTING A CHECK OF $10,000 TO THE WIDOW OF NORMAN PHELPS. THIS
LITERATURE CONTAINED A FALSE REPRESENTATION THAT MRS. PHELPS WAS PAID
$10,000 INSURANCE. MRS. PHELPS WAS NOT PAID PURSUANT TO THE TRAVELERS
POLICY BUT THE $10,000 WAS A PAYMENT FROM THE GENERAL FUNDS OF NAGE.
THIS "NAGE BULLETIN" WAS DISTRIBUTED IN THE SHIPYARD RIGHT UP TO
ELECTION DAY."
MTC HAS BEEN RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES
AT THE EMPLOYER'S OPERATIONS IN THE UNIT DESCRIBED ABOVE FOR A NUMBER OF
YEARS AND HAS HELD COLLECTIVE BARGAINING CONTRACTS COVERNING THEIR
WORKING CONDITIONS NEGOTIATED WITH THE EMPLOYER. THE LAST OF THESE
CONTRACTS, WHICH EXPIRED BY ITS TERMS ON JUNE 26, 1969, WAS EXTENDED
(WITH SOME EXCEPTIONS) BY AGREEMENT BETWEEN MTC AND THE EMPLOYER PENDING
THE RESOLUTION OF THE PENDING QUESTION CONCERNING THE REPRESENTATION OF
THE EMPLOYEES INVOLVED.
NAGE BEGAN ITS CAMPAIGN TO UNSEAT MTC AS THE EXCLUSIVE REPRESENTATIVE
OF THE UNIT EMPLOYEES IN JANUARY 1969, BY SEEKING TO ACQUIRE FROM THE
EMPLOYEES EVIDENCE OF MEMBERSHIP IN AND SUPPORT OF NAGE REQUIRED BY
EXECUTIVE ORDER 10988 TO CHALLENGE THE STATUS OF MTC. NAGE FILED A
TIMELY CHALLENGE ON APRIL 25, TOGETHER WITH THE EVIDENCE OF EMPLOYEE
MEMBERSHIP AND SUPPORT WHICH IT HAD SECURED. MTC ATTACKED THE VALIDITY
OF THE NAGE CLAIM OF MEMBERSHIP AND SUPPORT (ASSERTING SOME OF THE
ARGUMENTS IT ADVANCES HERE IN SUPPORT OF ITS OBJECTIONS), AND THE TWO
UNIONS AGREE UPON AN IMPARTIAL ARBITRATOR TO RESOLVE THIS ISSUE. ON
JUNE 30, THE ARBITRATOR ADVISES THE EMPLOYER THAT HIS INVESTIGATIONS
SATISFIED HIM THAT NAGE HAD SUBMITTED SUFFICIENT EVIDENCE OF A VALID
CHALLENGE TO THE REPRESENTATIVE STATUS OF MTC, AND THE EMPLOYER
THEREAFTER ADVISED THE PARTIES THAT IT ACCEPTED THIS REPORT. MTC
APPEALED THIS DECISION TO THE NAVY, WHICH, AFTER DUE CONSIDERATION,
AFFIRMED THE EMPLOYER. MTC THEN REQUESTED THE ASSISTANT SECRETARY TO
INSTITUTE FURTHER PROCEEDINGS TO REVIEW THIS ISSUE. THIS WAS DENIED IN
A DECISION DATED NOVEMBER 21, WHICH ALSO HELD THAT THE SHOWING OF
INTEREST MADE BY NAGE WAS ADEQUATE TO SUPPORT ITS CHALLENGE.
ON OCTOBER 7, AT THE MEETING OF THE EMPLOYER, NAGE AND MTC, AN
ELECTION AGREEMENT WAS FORMALIZED (WHICH MTC DID NOT SIGN) SCHEDULING AN
ELECTION UPON THE NAGE CHALLENGES, TO BE HELD ON NOVEMBER 6, AND SETTING
FORTH THE DETAILS OF THE ELECTION AND THE RULES TO BE FOLLOWED IN
CAMPAIGNING UP TO THE DATE OF THE ELECTION. THIS AGREEMENT WAS
CANCELLED BY THE EMPLOYER IN CONSEQUENCE OF THE PENDENCY OF MTC'S
REQUEST OF THE ASSISTANT SECRETARY FOR FURTHER PROCEEDINGS TO REVIEW THE
VALIDITY OF THE NAGE CHALLENGE. FOLLOWING THE ASSISTANT SECRETARY'S
REJECTION OF THE MTC REQUEST ON NOVEMBER 21, ANOTHER ELECTION AGREEMENT
WAS DRAWN, DATED NOVEMBER 25, SIMILAR TO THE PREVIOUS DOCUMENT, SETTING
THE ELECTION FOR DECEMBER 4. AT THIS ELECTION, AS NOTED, A MAJORITY OF
THE VOTES CASE WAS FOR NAGE.
ESSENTIALLY, THIS OBJECTION CONTENDS THAT THE EMPLOYER IMPROPERLY
AFFECTED THE ELECTION BY ADOPTING AND MAINTAINING ALLEGEDLY UNLAWFUL OR
IMPROPER RESTRICTIVE RULES WHICH INTERFERED WITH THE RIGHT OF MTC (AND
NAGE ALSO) TO COMMUNICATE WITH THE EMPLOYEES IN THE UNIT CONCERNING THE
QUESTION OF THEIR REPRESENTATION, AND THAT THE EMPLOYER BY A PATTERN OF
DISPARATE AND DISCRIMINATORY CONDUCT SUPPORTED AND ASSISTED NAGE.
AT THE ONSET, THE CONTENTION THAT THE EMPLOYER FAVORED OR ASSISTED
NAGE IN RELATION TO ITS CHALLENGE OF THE REPRESENTATIVE STATUS OF MTC IS
SIMPLY DISPOSED OF. THE EVIDENCE SUBMITTED CLEARLY DOES NOT JUSTIFY
SUCH A FINDING. INDEED, IT WOULD SERVE NO PURPOSE, AND WOULD UNDULY
LENGTHEN THIS DECISION, TO SET FORTH THE EVIDENCE IN THIS RESPECT OR
DISCUSS IT. SO FAR AS I CAN ASCERTAIN, THIS POINT IS NOT EVEN MENTIONED
IN THE MTC BRIEF AND APPEARS TO HAVE BEEN ABANDONED.
THE SECOND ISSUE TO BE CONSIDERED UNDER OBJECTION 1(B), THAT THE
EMPLOYER IMPROPERLY RESTRICTED UNION COMMUNICATION WITH THE EMPLOYEES
DURING THE PERIOD WHEN A QUESTION CONCERNING REPRESENTATION EXISTED,
MUST BE CONSIDERED IN MORE DETAIL. THE BASIS FOR THE VARIOUS
RESTRICTIVE RULES APPLIED BY THE EMPLOYER FROM JANUARY 1 THROUGH
DECEMBER 4, THE DATE OF THE ELECTION, WAS A COMMUNICATION TO "HEADS OF
DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS," ISSUED BY THE CIVIL SERVICE
COMMISSION IN 1966, ENTITLED "GUIDANCE FOR AGENCIES IN DEALING WITH
EMPLOYEE ORGANIZATIONS COMPETING FOR EXCLUSIVE RECOGNITION" (HEREIN
REFERRED TO FPM 711-6). IT SUGGESTS, IN THE INTEREST OF ESTABLISHING
UNIFORM RELATIONSHIPS BETWEEN AGENCIES AND COMPETING UNIONS, THAT THE
GUIDELINES PROVIDED BE FOLLOWED IN SITUATIONS WHERE ONE EMPLOYEE
ORGANIZATION ATTEMPT TO DISPLACE ANOTHER WHICH HAD THE STATUS OF
EXCLUSIVE REPRESENTATIVE UNDER EXECUTIVE ORDER 10988. INTER ALIA, THE
LETTER PROVIDES FOR CERTAIN RESTRICTIONS UPON THE RIGHT OF THE COMPETING
UNIONS TO DISTRIBUTE LITERATURE TO EMPLOYEES, SOLICIT MEMBERSHIP, AND
THE LIKE ON THE PREMISES OF THE EMPLOYER.
DURING THE PERIOD FROM JANUARY 1 THROUGH DECEMBER 4 /5/, THE
EMPLOYER, IN APPARENT RELIANCE UPON FPM 711-6, PROHIBITED THE
DISTRIBUTION OF ANY LITERATURE TO EMPLOYEES BY EITHER OF THE COMPETING
UNIONS ON THE EMPLOYER'S PREMISES UNLESS APPROVED BY THE EMPLOYER.
PURSUANT TO ITS INTERPRETATION OF FPM 711-6, THE EMPLOYER ADVISED THE
TWO UNIONS IN WRITING THAT DURING THE PERIOD FROM JANUARY 1 UNTIL ABOUT
JULY 3 (WHEN THE EMPLOYER ACCEPTED THE VALIDITY OF THE NAGE CHALLENGE),
BOTH MTC AND NAGE WERE PROHIBITED FROM ENGAGING IN "CAMPAIGNS FOR
MEMBERSHIP ELECTIONS" ON EMPLOYER PREMISES AT ANY TIME; FURTHER THAT
NAGE WAS PROHIBITED (BUT MTC WAS PERMITTED, BECAUSE OF ITS EXCLUSIVE
STATUS) FROM ENGAGING IN THE FOLLOWING CONDUCT ON THE EMPLOYER'S
PREMISES: 1) SOLICITATION OF MEMBERSHIP OUTSIDE OF WORKING HOURS, 2)
COLLECTION OF DUES OR ASSESSMENTS OUTSIDE WORKING HOURS, 3) MEMBERSHIP
MEETINGS OUTSIDE WORKING HOURS, 4) USE OF STEWARDS; THAT BOTH UNIONS
WERE PERMITTED MEETINGS WITH THE EMPLOYER UNDER CERTAIN CONDITIONS; AND
BOTH WERE PERMITTED TO POST MEMBERSHIP MEETING NOTICES ON UNOFFICIAL
BULLETIN BOARDS UPON APPROVAL OF THE EMPLOYER.
BY LETTER DATED JULY 3, THE EMPLOYER NOTIFIED BOTH COMPETING UNIONS
THAT A VALID CHALLENGE TO THE STATUS OF MTC HAD BEEN FILED AND AN
ELECTION WOULD BE NECESSARY. THE LETTER FURTHER CAUTIONED BOTH MTC AND
NAGE "TO REFRAIN FROM ANY KIND OF ELECTIONEERING WITHIN THE SHIPYARD
UNTIL SUCH TIME AS THE RULES FOR ELECTIONEERING CAN BE ESTABLISHED" AS
PART OF AN ELECTION AGREEMENT AS CONTEMPLATED BY FPM 711-6.
BECAUSE OF DELAYS IN FORMULATING AN ELECTION AGREEMENT, THE EMPLOYER
ON AUGUST 8, WROTE J. M. PORTER, THE PRESIDENT OF THE MTC AND A PLUMBERS
LOCAL AFFILIATED WITH THE COUNCIL, ADVISING, IN PERTINENT PART, AS
FOLLOWS:
. . . UNTIL THE RULES GOVERNING CAMPAIGN PRIVILEGES CAN BE AGREED
UPON AND INCORPORATED INTO AN ELECTION AGREEMENT, YOUR ORGANIZATION MAY
NOT DISTRIBUTE OR POST LITERATURE CONCERNING MEMBERSHIP, BENEFITS,
ELECTION CAMPAIGNS OR MATERIAL WHICH COULD BE CONSTRUED AS ELECTIONARY
WITHIN THE SHIPYARD. YOU MAY, HOWEVER, ACCEPT THIS AS AUTHORITY TO POST
NOTICES OF MEETINGS OF YOUR LOCAL ON UNOFFICIAL BULLETIN BOARDS. SUCH
MEETING NOTICES SHALL BE LIMITED TO ANNOUNCING THAT DATE TIME AND PLACE
. . .
PROVIDED SPECIFIC APPROVAL HAS BEEN GIVEN BY THE DIRECTOR OF
INDUSTRIAL RELATIONS OR APPROPRIATE MEMBERS OF HIS STAFF, INFORMATIONAL
LITERATURE OTHER THAN THAT TYPE EXCLUDED ABOVE MAY BE DISTRIBUTED OR
POSTED ON UNOFFICIAL BULLETIN BOARDS OUTSIDE WORKING HOURS. IN THIS
REGARD, THE SHIPYARD RESERVES THE RIGHT TO REFUSE POSTING OR
DISTRIBUTION OF ANY LITERATURE WHICH IN ITS JUDGMENT IS LITERATURE IN
CONNECTION WITH MEMBERSHIP OR ELECTION PURPOSES.
ON OCTOBER 7, AN ELECTION AGREEMENT WAS FORMULATED SETTING THE
ELECTION FOR NOVEMBER 6. THIS AGREEMENT MADE THE FOLLOWING PERTINENT
PROVISIONS FOR ELECTIONEERING /6/ DURING THE PERIOD PRIOR TO THE
ELECTION:
CAMPAIGNING ONBOARD THE ACTIVITY WILL BE CONDUCTED DURING NONWORKING
HOURS . . . MATERIAL FOR POSTING AND/OR DISTRIBUTION ON STATION MUST BE
SCREENED, IN ADVANCE BY THE INDUSTRIAL RELATIONS OFFICE, CODE 160.
GENERALLY PRE-ELECTION CAMPAIGN PROPAGANDA OF THE PARTIES WILL NOT BE
CENSORED OR POLICED FOR CONTENT. HOWEVER, IT IS AGREED THAT . . . THE
LITERATURE SHALL NOT CONTAIN FALSE PROPAGANDA, SCURRILOUS AND LIBELOUS
STATEMENTS. IT IS AGREED THAT MATERIAL FOR POSTING SHALL BE NO LARGER
THAN 15" X 20" AND WILL BE PLACED ONLY ON UNOFFICIAL BULLETIN BOARDS . .
. LITERATURE DISTRIBUTED ON SHIPYARD PREMISES WILL BE DISPERSED AT ANY
TIME ABOARD SHIPS AND BARGES AND WILL NOT BE DISTRIBUTED ON GOVERNMENT
TIME . . .
ON NOVEMBER 3, WHEN THE ELECTION AGREEMENT WAS CANCELLED BECAUSE OF
THE PENDENCY OF THE MTC APPEAL ATTACKING THE VALIDITY OF THE NAGE
CHALLENGE, THE RULES FOR ELECTIONEERING REVERTED TO THOSE SET FORTH IN
THE EMPLOYER'S LETTER OF AUGUST 8 TO PORTER. ON NOVEMBER 25, ANOTHER
ELECTION AGREEMENT WAS PUT INTO EFFECT, SETTING THE ELECTION FOR
DECEMBER 4, AND PROVIDING ELECTIONEERING RULES IDENTICAL WITH THOSE IN
THE PRIOR AGREEMENT.
THE RECORD SHOWS THAT A SUBSTANTIAL AMOUNT OF LITERATURE WAS
DISTRIBUTED WITHIN THE SHIPYARD AND OTHER ELECTION ACTIVITY OCCURRED ON
THE PREMISES OF THE EMPLOYER, EVEN DURING THE PERIODS WHEN SUCH
ELECTIONEERING WAS PROHIBITED ON GOVERNMENT PROPERTY. IT IS INDICATED
THAT SUPPORTERS OF NAGE ENGAGED IN MORE IN-PLANT DISTRIBUTION OF
LITERATURE THAN WAS THE CASE WITH MTC ADHERENTS, ALTHOUGH BOTH UNIONS
COMPLAINED FREQUENTLY TO THE EMPLOYER WITH RESPECT TO ALLEGED DISREGARD
OF THE RULES BY THE OTHER. THE EMPLOYER REFUSED TO APPROVE SEVERAL
PIECES OF MTC LITERATURE FOR DISTRIBUTION IN THE SHIPYARD, WHICH, IN
PART, APPARENTLY IMPELLED MTC TO DO A CONSIDERABLE PART OF ITS
DISTRIBUTION OF LITERATURE OUTSIDE THE GATES OF THE SHIPYARD, EVEN
DURING THE PERIOD COVERED BY THE ELECTION AGREEMENTS. THE EVIDENCE
SHOWS, HOWEVER, THAT DISTRIBUTION OUTSIDE THE GATES WAS LIMITED BY THE
FACT THAT MANY EMPLOYEES ENTERED THE SHIPYARD IN CARS AND IN PRIVATE AND
PUBLIC BUSES. THERE WAS SOME DISTRIBUTION OF LITERATURE ON THE PRIVATE
BUSES. SOME OF THE BUSES ENTERING THE SHIPYARD CARRIED ELECTIONEERING
MATERIALS ON THEIR EXTERIOR.
IN A PRIOR MATTER, CHARLESTON NAVAL SHIPYARD, CASES NOS. 40-1940(CA)
AND 40-1950(CA), THE ASSISTANT SECRETARY WAS REQUESTED TO PASS UPON THE
VALIDITY OF CERTAIN RULES PROMULGATED BY THE EMPLOYER IN THAT CASE IN
EARLY 1970, PROHIBITING ELECTIONEERING BY THE RECOGNIZED BARGAINING
AGENT AND THE UNION CHALLENGING, INCLUDING DISTRIBUTION OR POSTING OF
LITERATURE, MEETINGS FOR ELECTIONEERING AND SOLICITATION OF
AUTHORIZATIONS. THE DECISION OF THE ASSISTANT SECRETARY ON THIS MATTER
WAS ISSUED ON NOVEMBER 3, 1970. THE ASSISTANT SECRETARY HELD THAT IN
THE ABSENCE OF ANY EVIDENCE OF SPECIAL CIRCUMSTANCES WHICH WOULD HAVE
WARRANTED THE LIMITING OR BANNING OF DISTRIBUTION OF LITERATURE ON THE
EMPLOYER'S PREMISES ON NON-WORK TIME AND IN NON-WORK AREAS AND EMPLOYEE
SOLICITATION DURING NONWORK TIME, THE EMPLOYERS VIOLATED THE RIGHTS OF
EMPLOYEES UNDER EXECUTIVE ORDER 11491 BY PROMULGATING AND MAINTAINING
SUCH RULES.
THE RULES OF THE EMPLOYER IN THIS MATTER WERE SIMILAR AND, AS IN THE
CHARLESTON CASE, NO SPECIAL CIRCUMSTANCES WERE ADVANCED, OTHER THAN
RELIANCE UPON FPM 711-6, TO JUSTIFY THEIR IMPOSITION UPON THE EMPLOYEES
AND THE COMPETING UNIONS. IT IS THEREFORE CLEAR THAT UNDER EXECUTIVE
ORDER 11491, SUCH CONDUCT CONSTITUTES GROUNDS FOR SETTING AN ELECTION
ASIDE. /7/ NEVERTHELESS, I DO NOT RECOMMEND THAT THE ELECTION IN THIS
MATTER BE SET ASIDE ON THE BASIS OF THE RESTRICTIVE RULES ADOPTED BY THE
EMPLOYER IN THIS CASE. THE CHARLESTON CASE HAS TO DO WITH THE
APPLICATION OF RESTRICTIVE RULES TO SITUATIONS THAT MAY ARISE UNDER
EXECUTIVE ORDER 11491. IN THE PRESENT CASE, HOWEVER, THE RULES UNDER
ATTACK WHEN ADOPTED AND APPLIED WERE IN ACCORD WITH THE REQUIREMENTS OF
THE VERY AGENCIES WHICH WERE AUTHORIZED BY EXECUTIVE ORDER 10988 TO SET
THE RULES. /8/ THEY WERE FURTHER APPLIED BY THE EMPLOYER, SO FAR AS
THIS RECORD SHOWS, IN AS EVEN-HANDED AND OBJECTIVE MANNER AS WAS
POSSIBLE UNDER THE CIRCUMSTANCES. THEIR APPLICATION TO THE ELECTION
PROCESS UNDER EXECUTIVE ORDER 10988 SHOULD NOT NOW BE GROUNDS FOR
INVALIDATION OF THE ELECTION INVOLVED HERE.
FOR THE REASONS STATED IT IS THEREFORE RECOMMENDED THAT MTC OBJECTION
1(B) TO THE ELECTION BE OVERRULED.
OBJECTION 4 IS CONCERNED WITH ALLEGED NAGE PROMISES OF (1) SIX MONTHS
FREE MEMBERSHIP DUES, (2) A FREE DEATH AND DISMEMBERMENT INSURANCE
POLICY, (3) A MONETARY REWARD FOR NEW MEMBERS OBTAINED, AND TO
REPRESENT. OBJECTION 5 ASSERTS THAT NAGE MISREPRESENTED TO THE
EMPLOYEES THAT THE INSURANCE PROMISED WAS COVERED BY A POLICY HELD WITH
THE TRAVELERS INSURANCE COMPANY, HEREIN CALLED TRAVELERS.
BEGINNING IN JANUARY, NATIONAL AND LOCAL LEADERS OF NAGE HELD
MEETINGS, AS STATED BY WILLIAM E. TWOMEY (THEN ONE OF ITS LOCAL
LEADERS), TO DISCUSS "DIFFERENT THINGS WE COULD DO TO INSPIRE MEMBERSHIP
OR GET THE TOTAL SIGNATURES THAT WE NEEDED." /9/ IT WAS DECIDED TO MOUNT
A CAMPAIGN IN WHICH THE ELIGIBLE EMPLOYEES WOULD BE OFFERED "FREE
INSURANCE AND FREE MEMBERSHIP AND FREE RIGHTS." AMONG THE FREE RIGHTS
OFFERED WITH SUCH MEMBERSHIP WAS ASSERTED RIGHT TO FREE LEGAL
REPRESENTATION IN PROCESSING JOB-CONNECTED GRIEVANCES. IN TWOMEY'S
TERMS, ONCE A FORM 1187, (AS THE MEMBERSHIP AUTHORIZATIONS WERE
FAMILIARLY CALLED) HAD BEEN SIGNED, "YOU WERE A MEMBER -- DIDN'T COST
YOU ANYTHING UNTIL THEY WERE VALIDATED."
AFTER THE MEETINGS MENTIONED ABOVE, AND ABOUT A MONTH OR MORE BEFORE
APRIL 25, COPIES OF THE FOLLOWING LETTER, ENCLOSING FIVE FORM 1187'S,
WERE MAILED TO ABOUT 800 ELIGIBLE EMPLOYEES FROM THE BOSTON OFFICES OF
NAGE, ON THE UNION'S LETTERHEAD:
DEAR NAGE MEMBER:
I BELIEVE YOU AGREE WITH ME THAT WE HAVE TO PUT AN END TO METAL
TRADES WHICH IS A "CONFLICT OF INTEREST" ORGANIZATION THAT PRESENTLY HAS
EXCLUSIVE RECOGNITION HERE AT THE NORFOLK NAVAL SHIPYARD IN BEHALF OF
BLUE COLLAR WORKERS.
THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE), THE NATION'S
LARGEST INDEPENDENT GOVERNMENT EMPLOYEE ORGANIZATION IN THE COUNTRY, IS
A FEDERAL EMPLOYEE ORGANIZATION THAT HAS BEEN SUCCESSFUL IN STOPPING
AFL-CIO UNIONS (INCLUDING THE METAL TRADES) FROM TAKING OVER GOVERNMENT
WORK; THUS PREVENTING NAVAL SHIPYARDS FROM CLOSING.
YOU CAN HELP NAGE AND, MEANWHILE, HELP YOURSELF TO A "MONEY REWARD"
BY OBTAINING FOR US FIVE (5) NEW MEMBERS IN NAGE. IF YOU OBTAIN 5 NEW
MEMBERS HERE AT THE NORFOLK NAVAL SHIPYARD, I WILL SEND YOU $20.
IN AN EFFORT TO CHALLENGE THE METAL TRADES AT THE NORFOLK NAVAL
SHIPYARD, YOU MUST SIGN UP 5 NEW MEMBERS WITHIN THE NEXT THREE WEEKS AND
FORWARD THE APPLICATIONS TO OUR OFFICE IN THE SELF-ADDRESSED, POSTAGE
PAID ENVELOPE. ANY PERSON YOU "SIGN UP" WILL HAVE FREE NAGE DUES AND
INSURANCE FOR SIX MONTHS. IF NAGE WINS EXCLUSIVE RECOGNITION, YOU WILL
COME UNDER THE DUES ALLOTMENT PROGRAM.
REMEMBER-- HAVE 5 BLUE COLLAR WORKERS SIGN THE DUES ALLOTMENT FORMS
AND RETURN THEM TO ME . . . I WILL SEND YOU $20. THE EMPLOYEES MUST BE
BLUE COLLAR WORKERS AT THE NORFOLK NAVAL SHIPYARD.
LET'S WORK FOR NAGE AS THE EXCLUSIVE BARGAINING UNIT . . .
THERE IS EVIDENCE THAT THIS OFFER WAS DISCUSSED AMONG A NUMBER OF THE
EMPLOYEES WHO WORKED IN THE SHIPYARD. IT WAS STIPULATED THAT NAGE PAID
OUT $1,800 PURSUANT TO THIS OFFER, 40 EMPLOYEES RECEIVING $20 EACH
DIRECTLY AND $800 BEING PAID TO NAGE LOCALS AT THE REQUEST OF EMPLOYEES
ENTITLED TO THE MONEY. THERE IS NO INDICATION AS TO WHEN THIS MONEY WAS
PAID OR ANY EVIDENCE THAT THIS OFFER WAS CONTINUED BEYOND APRIL 25.
THERE IS ALSO SOME CONFLICT AS TO WHETHER MTC OFFICIALS OFFERED A SUM
OF MONEY TO ONE OR TWO EMPLOYEES, BUT IT IS CONSIDERED NOT NECESSARY TO
RESOLVE THIS. ASSUMING THAT THIS OCCURRED, THE INDICATIONS ARE THAT THE
EMPLOYEE INVOLVED WAS BEING SOLICITED TO WORK FOR MTC RATHER THAN FOR
NAGE, AND THE ALLEGED OFFER WAS NOT CONTINGENT ON THE SUCCESS OF THE
EMPLOYEE'S EFFORT. IT ALSO APPEARS THAT NAGE PAID SOME OF ITS ADHERENTS
FOR THEIR WORK IN ITS BEHALF PRIOR TO THE ELECTION.
THERE IS NO QUESTION BUT THAT A KEY TO THE NAGE CAMPAIGN TO SECURE
THE ADHERENCE OF UNIT EMPLOYEES WAS AN OFFER OF FREE MEMBERSHIP. THIS
IS OVERWHELMINGLY SUPPORTED BY THE TESTIMONY IN THE RECORD. IT IS
GRAPHICALLY PRESENTED BY THE FOLLOWING ADVERTISEMENT PLACED BY NAGE IN
"THE VIRGINIAN PILOT," A LOCAL PAPER OF GENERAL CIRCULATION IN NORFOLK,
BEGINNING ABOUT FEBRUARY 20, 1969: /10/
IT IS ALSO OBVIOUS FROM THE RECORDS AS A WHOLE THAT THOSE SOLICITING
SUPPORT FOR NAGE UTILIZED THE OFFER OF FREE MEMBERSHIP TO EMPHASIZE THE
VALUE OF FREE INSURANCE AND OTHER BENEFITS AVAILABLE TO NAGE MEMBERS, AS
ILLUSTRATED BY THE CREDITED TESTIMONY OF DAVID R. MORGAN, THEN
SOLICITING SUPPORT FOR NAGE, WHICH IS SET FORTH BELOW. MORGAN, IN
ADDITION TO OTHER ARGUMENTS STATES:
. . .I EXPLAINED TO THE EMPLOYEES SOLICITED YOU HAD NO OBLIGATION
BECAUSE THE DUES WERE FREE AND SO WAS THE INSURANCE POLICY, WHICH WAS
THE $10,000 ACCIDENTAL DEATH POLICY, AND THAT WHEN I GOT THEM TO FILL IN
AN 1187 I EXPLAINED TO THEM THIS FORM VIRTUALLY MEANT NOTHING UNLESS WE
BECAME THE RECOGNIZED UNION, UNLESS WE GOT TO BE RECOGNIZED IN TO THE
CONTROLLER. SO THERE WAS NO OBLIGATION ON THEIR PART UNLESS THEY WON
THE CHALLENGE OR WON THE ELECTION AS FAR AS MONEY, THAT NO DUES WOULD BE
COLLECTED. /11/
AFTER APRIL 25, THE EFFORT TO SEEK MEMBERSHIP APPLICATIONS FOR NAGE
WAS MUCH DIMINISHED, BUT DID NOT CEASE AS THE TESTIMONY OF MORGAN AND
OTHERS ESTABLISHES. THUS, EMPLOYEE DONALD L. BEALE CREDIBLY TESTIFIED
THAT IN THE SUMMER OF 1969 (WHICH HE PLACES AS MAY, JUNE OR JULY), HE
WAS APPROACHED BY ANOTHER EMPLOYEE, WHITEMORE, WHO SOLICITED HIM TO JOIN
NAGE, AND FOR WHOM HE SIGNED A "CASH RECEIPT" FORM IN FAVOR OF THAT
UNION. /12/ AT WHITMORE'S URGING, BEALE SOLICITED OTHER EMPLOYEES
THEREAFTER TO SIGN SIMILAR FORMS. USING THE ARGUMENTS OF FREE DUES,
INSURANCE AND LEGAL AID, SUGGESTED BY WHITEMORE, BEALE OBTAINED THE
SIGNATURES OF ABOUT 30 EMPLOYEES TO THESE FORMS. L. O. ANDERSON, AN
EARLY LEADER IN THE NAGE MOVEMENT AND A PRESIDENT OF ONE OF ITS LOCALS,
TESTIFIED THAT HE SECURED 10 FORM 1187'S IN JUNE, JULY AND AUGUST.
HAMPTON, PRESIDENT OF NAGE SHIPYARD COUNCIL, STATED THAT HE HAD 95 FORM
1187'S IN HIS POSSESSION SIGNED AFTER APRIL 25.
IT SHOULD ALSO BE NOTED THAT THERE IS A SUBSTANTIAL QUESTION AS TO
THE DURATION OF THE FREE MEMBERSHIP GRANTED BY NAGE. SO FAR AS APPEARS,
ALL NAGE LITERATURE MAKING THE OFFER LIMITED IT TO SIX MONTHS. THIS WAS
CLEARLY REPEATED IN SOME OF THE ORAL SOLICITATION AS WELL, AS THE
TESTIMONY OF BEALE SHOWS. HOWEVER OTHER EVIDENCE INDICATES A
SUBSTANTIAL BASIS FOR THE CONCLUSION THAT THESE FREE MEMBERSHIPS ARE
CONSIDERED TO BE STILL IN EFFECT. THUS, ONE NAGE MEMBERSHIP CARD
OFFERED IN EVIDENCE AS ILLUSTRATIVE OF THOSE ISSUED (MTC EXH. 18) IS
CLEARLY VALID ON ITS FACE FOR THE YEAR 1970, WITHOUT QUALIFICATION.
ANOTHER SUCH CARD IN EVIDENCE (MTC EXH. 22 C) WAS FOR THE YEAR 1969
WITHOUT QUALIFICATION. THE FORM 1187 USED, CONSIDERED AN APPLICATION
FOR MEMBERSHIP, CARRIED NO LIMITATION OR EXPLANATION. NAGE WITNESSES
STILES ( LOCAL OFFICER OF NAGE) AND CALHOUN, WHO SIGNED APPLICATIONS FOR
THAT UNION IN EARLY 1969, TESTIFIED THAT ALTHOUGH THEY HAVE PAID NO DUES
TO NAGE THEY CONSIDER THEMSELVES STILL MEMBERS OF THE ORGANIZATION AND
ENTITLED TO BENEFITS SUCH AS INSURANCE AND LEGAL AID WHICH ARE AN
INCIDENT OF MEMBERSHIP IN NAGE. MTC WITNESS MORGAN STATED THAT HE STILL
CONSIDERED HIMSELF A MEMBER OF NAGE AT THE TIME OF HEARING (THOUGH HE
HAD NOT PAID ANY DUES), AND WAS STILL RECEIVING COPIES OF THE NAGE
MONTHLY PAPER, "THE FEDNEWS", WHICH IS CONSIDERED AN INCIDENT OF
MEMBERSHIP. (SEE MTC EXH. 5)
IT IS NOT CONTESTED THAT DURING THE PERIOD PRIOR TO APRIL 25, THE
DATE THAT NAGE FILED ITS CHALLENGE, A SUBSTANTIAL PART OF THE NAGE
CAMPAIGN EMPHASIZED THE THEME OF "FREE MEMBERSHIP, FREE INSURANCE AND
FREE LEGAL REPRESENTATION." THERE WAS WIDE PUBLICITY OF THE FACT, AS
NOTED IN THE "VIRGINIAN-PILOT" AD REPRODUCED ABOVE, THAT THE COVERAGE OF
THE DEATH AND DISMEMBERMENT POLICY FOR MEMBERS WAS UP TO $10,000. /13/
NO LESS THAN 10 PIECES OF LITERATURE OR COMMUNICATIONS TO EMPLOYEES FROM
NAGE BOTH BEFORE AND AFTER APRIL 25, EXCLUSIVE OF "THE FEDNEWS", MADE
REFERENCE TO THIS INSURANCE BENEFIT. ONE PIECE OF PRINTED MATERIAL
ISSUED BY NAGE (MTC EXH. 6) WAS DEVOTED ALMOST ENTIRELY TO THIS ISSUE,
CARRYING TWO PAGES OF TEXT AND PICTURES ABOUT THIS ITEM OF INSURANCE AND
LISTING THIS ITEM IN BOLD TYPE ON THE BACK PAGE AT THE HEAD OF A COLUMN
OF REASONS GOVERNMENT EMPLOYEES WERE ASSERTED TO BE JOINING NAGE.
INDEED, IN ALMOST EVERY LISTING OF NAGE BENEFITS IN THE WRITTEN MATERIAL
APPEARING IN THE RECORD, AS IN THE ADVERTISEMENT SHOWN ABOVE, THE
INSURANCE ITEM IS MENTIONED FIRST.
IN ADDITION TO THE MATERIAL MENTIONED ABOVE, THE RECORD SHOWS THAT
THE REGULAR MONTHLY ISSUED OF "THE FEDNEWS" WERE WISELY DISTRIBUTED
AMONG, OR MADE AVAILABLE TO UNIT EMPLOYEES THROUGH THE TIME OF THE
ELECTION. EACH ISSUE OF "THE FEDNEWS" CARRIED ON ADVERTISEMENT VERY
SIMILAR TO THE ADVERTISEMENT IN THE "VIRGINIAN PILOT" NOTED ABOVE, WITH
AN IDENTICAL LOGOTYPE AT THE HEAD AND FOOT (WITH WHITE LETTERING ON A
BLACK BACKGROUND) AND WITH AN IDENTICAL LISTING AND DESCRIPTION OF
BENEFITS (EXCEPT THAT THE ITEM CONCERNING INSURANCE IN "THE FEDNEWS"
APPEARS IN SLIGHTLY LARGER TYPE). MOREOVER, THE ADS IN "THE FEDNEWS" DO
NOT OFFER SIX MONTHS FREE MEMBERSHIP AND REQUEST AN INITIAL DUES PAYMENT
OR EXECUTED DUES ALLOTMENT FORM WITH THE APPLICATION.
OTHER THAN THE "VIRGINIAN-PILOT" AD, THE "MONEY REWARD LETTER," AND
REFERENCE TO AN ADVERTISEMENT CARRIED ON SOME BUSES OFFERING SIX MONTHS
FREE MEMBERSHIP AND INSURANCE (WHICH WAS REMOVED SHORTLY AFTER APRIL
25), THE WRITTEN MATERIAL ISSUED BY NAGE CONTAINED NO CLEAR LIMITATION
ON THE OFFER OF INSURANCE OTHER THAN MEMBERSHIP IN THE ORGANIZATION.
/14/ IN VARIOUS PIECES OF LITERATURE IT IS STATED, "YOU WILL RECEIVE
FREE $10,000 ACCIDENT INSURANCE COVERAGE" (MTC EXH. 3), "INSURANCE AT NO
CHARGE TO YOU -" (MTC EXHS. 4, 7), "NAGE GIVES EACH MEMBER A FREE
$10,000 INSURANCE POLICY (ACCIDENT AND DISMEMBERMENT) UNDERWRITTEN BY
ONE OF THE NATION'S LARGEST INSURANCE COMPANIES," (MTC EXH. 9), "EVERY
NAGE MEMBER WILL AUTOMATICALLY BE ENROLLED IN THE INSURANCE PROGRAM"
(MTC EXH. 5).
THIS INSURANCE OFFER WAS ATTACKED AND DISPARAGED BY THE MTC. AMONG
OTHER THINGS, MTC CLAIMED THAT NAGE WOULD NOT ISSUE MEMBERSHIP CARDS OR
INSURANCE POLICIES TO BACK UP ITS OFFER UNLESS THAT UNION SECURED
RECOGNITION, (NAGE EXHS. 11,10) TWOMEY, THEN AN NAGE LEADER, BECAME
CONCERNED AND SOUGHT REASSURANCES THAT THE INSURANCE OFFER WAS VALID.
HE WAS INFORMED BY OFFICERS OF THE UNION THAT THE INSURANCE OFFER WAS
GOOD. /15/ IT WAS STIPULATED THAT "APPROXIMATELY 1,080 TRAVELERS
INSURANCE CERTIFICATES WERE MAILED OR DELIVERED BY NAGE DURING THE
PERIOD OF APRIL TO JULY 1969, TO NORFOLK NAVAL SHIPYARD WAGE EMPLOYEES
WHO EXECUTED FORM 1187'S IN FAVOR OF NAGE BUT WHO NEVER PAID ANY
MEMBERSHIP DUES TO NAGE. IN ADDITION, NAGE CONTENDS THAT 400
CERTIFICATES WERE MAILED OR DELIVERED BY NAGE DURING THIS PERIOD TO
EMPLOYEES WHO WERE CASH-PAYING MEMBERS." /16/ IT WOULD APPEAR FROM THE
RECORD AS A WHOLE, AND THE TESTIMONY OF WYNN E. HAMPTON, ONE OF THE
LOCAL LEADERS OF NAGE, THAT A SUBSTANTIAL NUMBER OF THESE CERTIFICATES,
IF NOT MOST OF THEM, WERE DISTRIBUTED AFTER MAY 17, WHEN ONE EMPLOYEE
WHO HAD EXECUTED A FORM 1187 IN FAVOR OF NAGE, NORMAN PHELPS, WAS
ACCIDENTLY KILLED. /17/
WITH THE ADVENT OF THE TRAVELERS CERTIFICATES OF INSURANCE, WHICH
WERE ISSUED ON THEIR FACT TO SPECIFICALLY NAMED EMPLOYEES, MTC NOTED
THAT ONE OF THE REQUIREMENTS FOR PARTICIPATION IN THIS INSURANCE WAS
THAT THE EMPLOYEE CURRENTLY HAVE HIS DUES TO NAGE DEDUCTED FROM HIS PAY.
THEREAFTER, MTC USED THIS POINT TO ATTACK THE VALIDITY OF THE NAGE
INSURANCE OFFER. IN ONE UNDATED PIECE OF MTC LITERATURE, THE FOLLOWING
APPEARS (NAGE EXH.4B):
AS OF THIS DATE, WE HAVE BEEN INFORMED THAT THE WIDOW OF NORMAN J.
PHELPS, THE 56 SHOP EMPLOYEE WHO WAS KILLED BY A TRACTOR, HAS NOT
RECEIVED ONE RED CENT FROM HIS SO-CALLED N.A.G.E. INSURANCE POLICY. WE
OF THE METAL TRADES FEELS THAT MRS. PHELPS DESERVES THE MONEY CALLED FOR
IN THE SO-CALLED POLICY AND WE WILL SECURE LEGAL COUNSEL IF NECESSARY IF
SHE IS NOT PAID PROMPTLY. IT HAS BEEN MONTHS NOW - HOW LONG MUST ONE
WAIT? WE DON'T CARE WHETHER THE MONEY IS PAID BY N.A.G. OR THE
INSURANCE COMPANY, BUT IT SHOULD BE PAID PROMPTLY. WHEN YOU PUT OUT AN
INSURANCE POLICY, YOU SHOULD BE WILLING TO PAY OFF.
ON JULY 19, HAMPTON AND CROUCH, ON BEHALF OF NAGE PRESENTED MRS.
PHELPS WITH A CHECK FOR $10,000. A PICTURE OF THE OCCASION WAS TAKEN
AND WAS LATER REPRODUCED ON A SINGLE SHEET HEADED "NAGE BULLETIN" WITH A
SMALL HEADLINE READING, "$10,000.00 INSURANCE PAID NORFOLK NAVAL
SHIPYARD WORKERS WIFE BY NAGE." IT IS NOTED THAT THERE NO SPECIFIC
INDICATION IN THIS BULLETIN THAT THIS MONEY HAD BEEN PAID BY THE
TRAVELERS INSURANCE COMPANY. NAGE ARRANGED FOR THE DISTRIBUTION OF THE
BULLETIN OUTSIDE THE PLANT GATES TO UNIT EMPLOYEES, APPARENTLY IN
AUGUST, BY MEANS OF "MINISKIRTED" CHEERLEADERS FROM A LOCAL HIGH SCHOOL.
THE SAME PICTURE AND A STORY OF THE EVENT WERE CARRIED IN AN ISSUE OF
"THE FEDNEWS" DATED AUGUST 31, ALSO, IN THE SAME MANNER AS PAYMENTS TO
OTHER MEMBERS FOR DEATH AND DISMEMBERMENT APPEAR IN THAT PAPER FROM TIME
TO TIME.
ACCORDING TO EMPLOYEE DAVID MORGAN PRIOR TO THE ISSUANCE OF THIS
BULLETIN, "THERE WAS AN ARGUMENT BACK AND FORTH ABOUT IF AND IF NOT THIS
WOMAN WOULD BE PAID AND IF OR IF NOT THE INSURANCE WAS VALID." MORGAN
STATES THAT AFTER ITS ISSUANCE, "WE SAID, SEE, WE TOLD YOU SO * * * I
SAID HERE IS POSITIVE, CONCLUSIVE PROOF THAT SHE WAS PAID THROUGH THE
INSURANCE." MORGAN ASSUMED THAT THE PAYMENT HAD BEEN MADE BY TRAVELERS
INSURANCE COMPANY. LATER WHEN MTC SECURED A LETTER FROM TRAVELERS
STATING THAT ONLY EMPLOYEES WHO HAD THEIR DUES DEDUCTED BY THEIR
EMPLOYER WERE ELIGIBLE UNDER THIS POLICY HELD BY NAGE, MORGAN QUESTIONED
HIS LOCAL NAGE OFFICERS ABOUT THIS. WHEN THEY TOLD HIM THAT THIS WAS
JUST PROPAGANDA, THAT THE INSURANCE WAS GOOD AND THAT TRAVELERS HAD PAID
MRS. PHELPS, MORGAN CONCLUDED THAT THE MTC LETTER FROM TRAVELERS WAS A
FAKE. ACCORDING TO MORGAN, THE VALIDITY OF THE PAYMENT TO MRS. PHELPS
"SEEMED TO BE A FAIRLY HOT CONTESTED ISSUE IN THE ELECTION," WITH EACH
SIDE ATTEMPTING TO SHOW THAT THE OTHER WAS "DISHONEST." OTHER WITNESSES
CONFIRM THAT THERE WAS MUCH QUESTIONING AS TO WHETHER THE INSURANCE
COMPANY HAD PAID THE CLAIM TO MRS. PHELPS. EMPLOYEE JESSE EARL BYRUM
TESTIFIED THAT HE WAS TOLD BY TWO EMPLOYEES WEARING NAGE REPRESENTATIVE
BADGES THAT TRAVELERS HAD PAID THE INSURANCE. HAMPTON, THE CHIEF LOCAL
OFFICER OF NAGE, TESTIFIED THAT HE TOLD QUESTIONERS THAT MRS. PHELPS
WOULD BE PAID BY NAGE. MRS. PHELPS WAS, IN FACT PAID OUT OF THE NAGE
GENERAL FUND PURSUANT TO A RESOLUTION ADOPTED AT THE 1968 NATIONAL
CONVENTION OF NAGE AUTHORIZING THE PRESIDENT OF THAT ORGANIZATION AT HIS
DISCRETION, TO PAY DEATH BENEFITS TO EMPLOYEES SIGNATORY TO FORM 1187
WHO WERE NOT OTHERWISE ENTITLED TO THE BENEFIT.
THERE WAS SOME EVIDENCE THAT NATIONAL OFFICERS OF NAGE URGED FREE
INSURANCE AS AN INDUCEMENT TO EMPLOYEES JUST PRIOR TO THE ELECTION.
WHILE I HAVE SOME RESERVATIONS CONCERNING THE RELIABILITY OF EMPLOYEE
TURNER'S ACCOUNT OF NAGE PRESIDENT LYON'S ASSERTED COMMENTS IN THAT
REGARD, I CREDIT EMPLOYEE BYRUM'S TESTIMONY THAT JUST BEFORE THE
ELECTION HE ATTENDED A MEETING AT WHICH NAGE VICE-PRESIDENT DONABEDIAN
TOLD HIM THAT DONABEDIAN "THOUGHT THAT THE NAGE WAS A BETTER
ORGANIZATION THAT THE MTC AND THAT THEY COULD DO MORE FOR ME AND THAT IF
I WOULD BECOME A MEMBER OF NAGE I WOULD HAVE FREE DUES, FREE $10,000
INSURANCE, AND A FREE LAWYER REPRESENTATION."
THE TESTIMONY OF WITNESSES FOR NAGE, IN PARTICULAR LARUE O.
ANDERSON, DONALD O. CROUCH, ROY R. EVERETTE, WYNN E. HAMPTON, ON THIS
ISSUE, WAS, IN EFFECT, THAT THE MATTER OF INSURANCE WAS NOT OF MUCH
INTEREST TO NAGE AFTER APRIL 25 SINCE THERE WAS NO LONGER A DRIVE TO
SECURE MEMBERSHIP APPLICATIONS; THAT OTHER ISSUES RELATING TO
REPRESENTATION OF THE EMPLOYEES WAS STRESSED; AND THAT IT WAS MTC, NOT
NAGE, THAT STRESSED THE MATTER OF INSURANCE; THAT IT WAS KNOWN THAT THE
INSURANCE CERTIFICATE WAS "NO GOOD" (ACCORDING TO ANDERSON AND
EVERETTE); AND THAT NATIONAL NAGE OFFICERS HAD SAID THAT THE INSURANCE
WOULD BE PAID BY NAGE; AND FINALLY THAT NAGE OFFICERS HAD MADE IT PLAIN
AT EARLY MEETINGS, AND POSSIBLY IN PERSONAL CONVERSATIONS, THAT THE
OFFER OF FREE INSURANCE WOULD TERMINATE AFTER APRIL 25.
AS INDICATED ABOVE, NAGE PLACED CONSIDERABLE STRESS DURING THE ENTIRE
CAMPAIGN TO OUST MTC UPON THE FACT THAT NAGE MADE AVAILABLE TO ITS
MEMBERS FREE LEGAL REPRESENTATION IN THE PROCESSING OF THEIR GRIEVANCES
AND COMPLAINTS. THIS WAS A MATTER OF SIGNIFICANCE, AS THE TESTIMONY OF
EMPLOYEE MORGAN SHOWS, INASMUCH AS THE EMPLOYEES UNDER THE PRIOR
EXECUTIVE ORDER HAD THE RIGHT TO BE REPRESENTED IN THE PROCESSING OF
GRIEVANCES AND COMPLAINTS BY PERSONS OF THEIR OWN CHOOSING, AS THEY
CONTINUE TO HAVE UNDER THE PRESENT ORDER. A NUMBER OF PIECES OF NAGE
LITERATURE EMPHASIZED THE FACT THAT NAGE EMPLOYS LAWYERS, AND HAD A
SPECIFICALLY NAMED LAWYER FOR LOCAL EMPLOYEES, AND THAT NAGE FREQUENTLY
WENT TO COURT TO PROTECT THE RIGHTS OF EMPLOYEES. THE EVIDENCE IS THAT
THE LOCAL LAWYER EMPLOYED BY NAGE REPRESENTED EMPLOYEES IN THE UNIT WHO
HAD SIGNED FOR NAGE DURING THE PERIOD BEFORE THE ELECTION.
NAGE ASSERTS THAT ALL OF THE CONDUCT ENCOMPASSED WITH OBJECTIONS 4
AND 5 OCCURRED PRIOR TO APRIL 25, THE DATE UPON WHICH THE CHALLENGE WAS
FILED, AND, RELYING UPON THE RULE OF THE NATIONAL LABOR RELATIONS BOARD
SET FORTH IN IDEAL ELECTRIC AND MANUFACTURING COMPANY, 134 NLRB 1275,
(SEE ALSO GOODYEAR TIRE & RUBBER CO., 138 NLRB 453), ARGUES THAT
EVIDENCE OF ACTIVITY BEFORE THAT DATE SHOULD BE DISREGARDED AS TOO
REMOTE TO HAVE A SUBSTANTIAL EFFECT UPON THE ELECTION. NAGE ALSO ARGUES
THAT, BY ANALOGY TO UNFAIR LABOR PRACTICE PROVISIONS OF THE NLRA, THE
OBJECTIONS BE LIMITED TO A PERIOD OF 6 MONTHS PRIOR TO THE ELECTION.
MTC, ON THE OTHER HAND, CONTENDS THAT THE HEARING EXAMINER IS BOUND BY
THE TERMS OF THE NOTICE OF HEARING IN THIS MATTER WHICH CLEARLY INCLUDES
WITHIN THE OBJECTIONS THE ENTIRE PERIOD WITHIN WHICH NAGE MOUNTED ITS
CHALLENGE. IT WAS FOR THIS REASON, ESSENTIALLY, THAT THE EXAMINER
DETERMINED AT THE HEARING THAT HE WAS REQUIRED TO ACCEPT EVIDENCE FOR
THE ENTIRE PERIOD COVERED BY THE OBJECTIONS (APPROXIMATELY ONE YEAR
PRIOR TO DECEMBER 4, THE DATE OF THE ELECTION).
EXPERIENCE IN THIS FIELD DEMONSTRATES, I BELIEVE, THAT IT IS OF
IMPORTANCE TO THE EFFICIENT RESOLUTION OF REPRESENTATION PROBLEMS SUCH
AS THAT PRESENTED HERE THAT A CUT-OFF DATE BE ESTABLISHED BEYOND WHICH
CONDUCT OBJECTED TO WILL NORMALLY BE CONSIDERED TOO REMOTE TO
SUBSTANTIALLY AFFECT THE ELECTION. UNDER THE NLRA, SINCE 1961, THIS
DATE HAS BEEN ESTABLISHED AS THE TIME WHEN THE PETITION SEEKING A
REPRESENTATION ELECTION IS FILED. SEE IDEAL ELECTRIC, SUPRA. THUS
CONDUCT OCCURRING ENTIRELY BEFORE THE DATE OF THE PETITION WOULD
ORDINARILY BE CONSIDERED TOO REMOTE TO JUSTIFY UPSETTING THE ELECTION.
BUT WHERE CONDUCT OCCURRING BEFORE THE PETITION SPILLS OVER INTO THE
POST-PETITION PERIOD, OR IS RELATED TO CONDUCT OCCURRING IN THE CRITICAL
PERIOD, IT MUST BE CONSIDERED IN THAT CONTEXT. WHAT IS AT ISSUE IS THE
PROBABLE IMPACT OF CONDUCT UPON EMPLOYEES. MORE RECENT CONDUCT
OCCURRING IN THE CRITICAL PERIOD MAY WELL ACHIEVE IMPACT BY WHAT HAS
GONE ON BEFORE. IN INTERPRETING ITS IDEAL ELECTRIC RULE, THE BOARD
ITSELF HAS HELD THAT WHILE THE RULE "FORBIDS SPECIFIC RELIANCE UPON
PRE-PETITION CONDUCT AS GROUNDS FOR OBJECTING TO AN ELECTION, SUCH
CONDUCT MAY PROPERLY BE CONSIDERED INSOFAR AS IT LANDS MEANING AND
DIMENSION TO RELATED POST-PETITION CONDUCT." SEE STEVENSON EQUIPMENT
COMPANY, 174 NLRB NO. 128 (FN. 1); SEE ALSO ORTRONIX, INC., 173 NLRB
NO. 57 (FN. 3).
THESE RULES ARE ADAPTED TO THE PROBLEM PRESENTED HERE. CERTAINLY A
UNION FILING A CHALLENGE, OR A PETITION FOR AN ELECTION, SHOULD, AT
LEAST, BE HELD RESPONSIBLE FOR ITS CONDUCT AFFECTING THE RESULTS OF THE
ELECTION WHICH FOLLOW ITS REQUEST FOR THE ELECTION. NOR MAY THE UNION
REASONABLY OBJECT, WHERE SUCH CONDUCT HAS ITS GENESIS IN OTHER PREVIOUS
ACTIVITY OF THE UNION, OR FORM A CONTINUUM WITH WHAT HAS GONE ON BEFORE,
THAT REFERENCE BE HAD TO THE PRIOR ACTIVITY IN ORDER TO ASSESS THE
IMPACT OF THE ENTIRE COURSE OF CONDUCT UPON THE EMPLOYEES' CHOICE IN THE
ELECTION. THE OBJECTIONS DISCUSSED HEREINAFTER, WILL BE EXAMINED IN
LIGHT OF THESE CONSIDERATIONS, AS WELL AS THE TIME LIMITS APPEARING IN
THE NOTICE OF HEARING.
I HAVE CONSIDERED AND REJECTED THE SUGGESTION THAT THE 6 MONTHS
STATUE OF LIMITATIONS APPLICABLE TO UNFAIR LABOR PRACTICES BE APPLIED.
THE PROBLEMS INVOLVED IN THE TWO KINDS OF PROCEEDINGS ARE DIFFERENT AND
TRADITIONALLY DIFFERENT PROCEDURES HAVE BEEN APPLIED. NO SPECIAL REASON
IS ASSERTED FOR THE USE OF THE UNFAIR LABOR PRACTICE RULE IN THIS CASE.
IN ANY EVENT, EVEN IF IT WERE APPLIED, THE CUT-OFF DATE WOULD BE ABOUT
MAY 4, WHICH WOULD NOT CHANGE THE RECOMMENDATIONS MADE HEREINAFTER.
/18/
IN ORDER TO SECURE MEMBERSHIP APPLICATIONS, NAGE OFFERED $20 FOR EACH
5 APPLICATIONS SUBMITTED BY AN EMPLOYEE. MANY EMPLOYEES RECEIVED
LETTERS CONTAINING THIS OFFER WITH FIVE APPLICATION FORMS ENCLOSED.
PURSUANT TO THIS OFFER, NAGE PAID OUT A VERY SUBSTANTIAL SUM OF MONEY.
THE EXAMINER BELIEVES THAT SUCH ACTIVITY CLEARLY HAS A NECESSARY
TENDENCY TO CORRUPT THE ELECTION PROCESS. IN CONTRADISTINCTION TO THOSE
SITUATIONS IN WHICH WORKERS ARE PAID TO CAMPAIGN FOR ONE OF THE
CONTENDERS WITHOUT REGARD TO THE SUCCESS OF THE WORKER'S EFFORTS, HERE
THE OFFER WAS CONDITIONED ONLY UPON SUCCESS. THE INEVITABLE TENDENCY OF
SUCH A PRACTICE IS TO ENCOURAGE FEE SPLITTING, IN WHICH THE MEMBERSHIP
APPLICATION SIGNER SHARES THE MONEY REWARD WITH THE SOLICITOR. THIS
TENDENCY WOULD BE ENHANCED IN THE PRESENT MATTER BY THE FACT THAT THE
EMPLOYEE SIGNING THE PAPER WAS NOT OBLIGATED TO MAKE ANY PAYMENT
HIMSELF, AND WAS PROMISED OTHER TANGIBLE REWARDS IN ADDITION FOR
EXECUTING THE APPLICATION.
IT IS ARGUED IN JUSTIFICATION THAT THIS SORT OF ACTIVITY IS NOT
UNUSUAL IN ELECTIONS AMONG PUBLIC EMPLOYEES, AS ILLUSTRATED BY CERTAIN
EXHIBITS ATTACHED TO NAGE EXHIBIT 1. ASSUMING THAT THERE HAVE BEEN SOME
SUCH PRACTICES IN THE PUBLIC SECTOR, NO REASONS APPEAR THAT THEY SHOULD
BE PERMITTED. AN ANONYMOUS NOTATION AT THE BOTTOM OF ONE OF THE
EXHIBITS RAISES THE QUESTION: "BUYING MEMBERSHIPS? IS THIS LEGAL?"
THIS POSES THE ISSUE WELL. THE ANSWER WOULD ALSO SEEM OBVIOUS. DIRECT
MONETARY PAYMENTS TO SECURE ADHERENTS IN A CAMPAIGN LEADING TO AN
ELECTION SHOULD BE HELD NECESSARILY INIMICAL TO THE PURPOSES AND CONDUCT
OF A FREE AND FAIR ELECTION.
HOWEVER, THIS CONDUCT OCCURRED ONLY BEFORE THE FILING OF THE
CHALLENGE. IF IT HAD OCCURRED AFTER APRIL 25, I WOULD HAVE NO HESITANCY
IN RECOMMENDING THAT IT BE CONSIDERED GROUNDS FOR SETTING THE ELECTION
ASIDE, ON THE BASIS OF ITS POTENTIALITY FOR CORRUPTING THE CONDITIONS OF
THE ELECTION. IN THE CIRCUMSTANCES, HOWEVER, I WOULD CONSIDER IT TOO
REMOTE, STANDING ALONE, TO JUSTIFY SETTING ASIDE THE RESULTS OF THE
ELECTION AND THEREFORE RECOMMEND THAT THIS OBJECTION, AS SUCH, BE
OVERRULED AS AN INDEPENDENT GROUND FOR SETTING THE ELECTION ASIDE. IT
WILL BE CONSIDERED, HOWEVER, AS PART OF A CONTEXT OF OFFERS AND PAYMENTS
OF FINANCIAL BENEFIT TO NAGE ADHERENTS TO BE CONSIDERED HEREINAFTER.
/19/
AT THE OUTSET OF ITS CAMPAIGN, IN AN EFFORT TO SECURE THE MEMBERSHIP
AMONG UNIT EMPLOYEES REQUIRED BY EXECUTIVE ORDER 10988 TO SUPPORT ITS
CHALLENGE, NAGE DECIDED TO OFFER THE EMPLOYEES INVOLVED FREE MEMBERSHIP
(NO DUES), FREE INSURANCE AND OTHER BENEFITS TO SECURE MEMBERSHIP
APPLICATIONS. IT MAY WELL BE THAT A MERE OFFER TO DEFER THE FINANCIAL
BURDEN OF MEMBERSHIP UNTIL SUCH TIME AS THE PETITIONING UNION HAS
ACHIEVED REPRESENTATIVE STATUS, STANDING ALONE, SHOULD NOT BE CONSIDERED
TO ADVERSELY AFFECT THE ENSUING ELECTION. CF. DIT-MCO, INC., 163 NLRB
1019. THIS IS PARTICULARLY SO BECAUSE, IN THE USUAL CASE, THE NORMAL
INCIDENT OF MEMBERSHIP INVOLVED IS REPRESENTATION. HOWEVER, IN THIS
CASE, THE NAGE OFFER OF FREE MEMBERSHIP WAS MADE IN A CONTEXT OF OTHER
BENEFITS DELIBERATELY DESIGNED TO INDUCE ACCEPTANCE OF THAT OFFER. IT
WILL THEREFORE BE CONSIDERED IN THAT CONTEXT.
IN THE CAMPAIGN, BOTH BEFORE AND AFTER APRIL 25, NAGE PLACED GREAT
EMPHASIS UPON ITS PRACTICE OF PROVIDING LEGAL REPRESENTATION FOR ITS
MEMBERS IN CONNECTION WITH THEIR JOB-CONNECTED PROBLEMS. IN PARTICULAR
IT CONTRASTED THE FACT THAT NAGE WAS ACTIVE IN TAKING ITS CASES TO COURT
WHILE ALLEGING THAT MTC DID NOT. FROM THE TESTIMONY OF WITNESS MORGAN,
PARTICULARLY IT WOULD APPEAR THAT THIS WAS OF IMPORTANCE TO HIM AND
OTHER EMPLOYEES. THE UNIT EMPLOYEES ALSO WERE MADE AWARE OF THE
SPECIFIC LOCAL ATTORNEY WITH WHOM NAGE HAD A CONTRACT, AND THAT ATTORNEY
REPRESENTED AN UNSPECIFIED NUMBER OF NAGE MEMBERS IN JOB-CONNECTED
GRIEVANCES DURING THE PERIOD IN QUESTION.
I DO NOT BELIEVE THAT THIS CONDUCT FORMS A PROPER BASIS FOR UPSETTING
THE ELECTION AND RECOMMEND THAT THIS OBJECTION BE OVERRULED. UNDER
EXECUTIVE ORDER 10988, SEC. 3(C)(1), THE UNIT EMPLOYEES HAD THE RIGHT
TO BE REPRESENTED IN THEIR GRIEVANCES BY PERSONS OF THEIR OWN CHOOSING,
RATHER THAN BY MTC. NAGE HAD THE RIGHT TO OFFER SUCH ASSISTANCE TO ITS
MEMBERS, ALTHOUGH, OF COURSE, IT COULD NOT REPRESENT THE EMPLOYEES IN
THE NAME OF NAGE WHILE MTC WAS THE EXCLUSIVE REPRESENTATIVE. SEE
EXECUTIVE ORDER 10988, SEC. 4. NO REASON APPEARS UNDER THE EXECUTIVE
ORDER, OR ANY APPLICABLE REGULATIONS OF WHICH I AM AWARE, WHY NAGE
SHOULD NOT OFFER SUCH SERVICES BY MEANS OF AN ATTORNEY AS WELL AS BY A
PAID ORGANIZER OR OFFICIAL. THOUGH THIS WAS AN OFFER OF A VALUABLE
CONSIDERATION, IT WAS AN OFFER OF REPRESENTATION RECOGNIZED BY THE TERMS
OF THE LAW. I WOULD THEREFORE NOT FIND IT IMPROPER.
THIS MATTER IS MOST TROUBLESOME OF THE ISSUES PRESENTED HERE. AT THE
OUTSET IT IS IMPORTANT TO NOTE THAT THE DIFFICULTIES INVOLVED ARE
COMPOUNDED BY THE FACT THAT NAGE THROUGHOUT HAS USED CERTAIN TERMINOLOGY
WHICH IT NOW ASSERTS MEANT DIFFERENT THINGS IN DIFFERENT CONTEXTS. THUS
IT IS NOW ARGUED THAT WHEN NAGE OFFERED "FREE" INSURANCE TO "EACH
MEMBER" UNDERWRITTEN BY AN INSURANCE COMPANY (SEE E.G. MTC EXH. 9), THIS
WAS LITERALLY TRUE ONLY IN THE CASE OF MEMBERS ON DUES CHECK-OFF, LESS
TRUE IN THE CASE OF EMPLOYEES PAYING THEIR DUES BY CASE (WHERE IT WAS
ASSERTED THAT NAGE IS A SELF-INSURER), AND MEANT SOMETHING COMPLETELY
DIFFERENT IN THE CASE OF THE UNIT EMPLOYEES OF THIS EMPLOYER, WHO
RECEIVED MEMBERSHIP STATUS WITHOUT PAYING ANY DUES (IN WHICH CASE IT IS
ASSERTED THAT NAGE WAS NOT ONLY A SELF-INSURER BUT LIMITED ITS
OBLIGATION TO A PERIOD OF SIX MONTHS). (NAGE BRIEF PP. 21-11, 53-54)
/20/ HOWEVER, THE ISSUE TO BE DETERMINED IS NOT WHAT NAGE MAY HAVE HAD
IN ITS MIND, BUT WHAT IMPACT UPON THE EMPLOYEES MIGHT REASONABLY BE
EXPECTED FROM ITS CONDUCT.
AN ISSUE IS RAISED BY THE OBJECTIONS AS TO WHETHER, IN SPITE OF THE
FACT THAT NAGE WAS A SELF-INSURER AS TO THE UNIT EMPLOYEES WHO SIGNED
APPLICATIONS, THOSE EMPLOYEES WERE LED TO BELIEVE THAT THEY WERE COVERED
BY THE NAGE POLICY WITH THE TRAVELERS INSURANCE COMPANY MENTIONED IN ITS
LITERATURE. THIS IS DENIED BY NAGE. HOWEVER, A CLOSE AND CAREFUL STUDY
OF THE RECORD IS CONVINCING THAT THE REASONABLE, IF NOT INEVITABLE,
TENDENCY OF NAGE'S ACTIONS WOULD LEAD THE EMPLOYEES TO CONCLUDE THAT THE
INSURANCE OFFERED WAS UNDERWRITTEN BY TRAVELERS. WHILE IT WAS TESTIFIED
THAT SOME NAGE OFFICIALS DURING THE CAMPAIGN ADVISED A NUMBER OF
EMPLOYEES THAT, EXCEPT AS TO EMPLOYEES ON CHECKOFF, NAGE WAS A
SELF-INSURER, I HAVE BEEN UNABLE TO FIND THIS ANYWHERE SET FORTH IN NAGE
LITERATURE ADDRESSED TO THE EMPLOYEES GENERALLY. THE FACT THAT NAGE
INSURANCE WAS PROVIDED BY TRAVELERS, HOWEVER, WAS MADE PLAIN IN A NUMBER
OF NAGE PUBLICATIONS DISTRIBUTED TO THE EMPLOYEES. MOST IMPORTANTLY,
MOREOVER, IN THE ORIGINAL "VIRGINIAN PILOT" AD, ISSUED AT THE BEGINNING
OF THE CAMPAIGN, URGING UNIT EMPLOYEES TO BECOME FREE MEMBERS OF NAGE,
IT IS PLAINLY STATED THAT "MEMBERS ARE COVERED BY A FREE 24-HOUR DEATH
AND DISMEMBERMENT POLICY HELD BY THE TRAVELERS INSURANCE COMPANY,
$10,000 MAXIMUM COVERAGE. NO AGE LIMITS." /21/
AFTER THE CHALLENGE WAS FILED, HOWEVER, UNIT EMPLOYEE MEMBERS OF NAGE
WERE ISSUED A TRAVELERS CERTIFICATE OF INSURANCE, WHICH, ON ITS SECOND
PAGE, LIMITED PARTICIPATION TO EMPLOYEES ON DUES CHECKOFF. HOWEVER, AS
THE FACTS PREVIOUSLY SET FORTH SHOW, THIS APPEARS RATHER TO HAVE
GENERATED CONTROVERSY OVER THIS ISSUE THAN TO HAVE SETTLED IT. IN THE
FIRST PLACE, IT IS TO BE NOTED THAT THOSE CERTIFICATES WERE SENT TO
THOSE MEMBERS IN RESPONSE TO PRESSURE UPON NAGE PRODUCE EVIDENCE OF THE
INSURANCE WHICH IT HAD PROMISED. THOUGH IT WAS ASSERTED IN TESTIMONY AT
THE HEARING THAT THE CERTIFICATES WERE SENT ONLY TO SHOW THE COVERAGE
AFFORDED BY THE INSURANCE PROMISED AND NOT THE IDENTITY OF THE CARRIER,
THERE IS NO EVIDENCE THAT THE EMPLOYEES WERE SO INFORMED. ON THE OTHER
HAND, THE ORIGINAL PROMISE IN THE NEWSPAPER AD ADDRESSED TO THESE
EMPLOYEES WAS FOR INSURANCE PROVIDED BY TRAVELERS, AND EVERY ISSUE OF
"FEDNEWS" AND SOME OTHER LITERATURE DISTRIBUTED TO THE EMPLOYEES
THEREAFTER REFERRED TO TRAVELERS AS THE INSURANCE CARRIER. WHEN NAGE
DISTRIBUTED THE TRAVELERS INSURANCE CERTIFICATE TO THE EMPLOYEES
THEREAFTER, IN CONJUNCTION WITH NAGE MEMBERSHIP CARDS, IT KNEW OR SHOULD
HAVE KNOWN THAT THE EMPLOYEES WOULD REASONABLY CONCLUDE THAT THIS
COMPLIED WITH THE UNION'S PREVIOUS OFFER AND WAS, IN FACT, THE INSURANCE
PROMISED. /22/
NOR WAS THIS POINT CLEARED UP IN JULY, WHEN NAGE PAID A $10,000 CLAIM
OUT OF THE NAGE GENERAL TREASURY TO THE WIDOW OF NORMAN PHELPS, WHO HAD
SIGNED A FORM 1187 FOR NAGE. IN THE ENSUING WIDESPREAD PUBLICITY, NAGE
REFERRED TO THIS AS AN "INSURANCE" PAYMENT MERELY. THE TESTIMONY OF
EMPLOYEE MORGAN REVEALS THAT THE NAGE SUPPORTERS SEIZED UPON THIS AS
PROOF THAT TRAVELERS HAD PAID THE CLAIM. WHEN MTC CLAIMED THE CONTRARY,
SHOWING DOCUMENTS OBTAINED FROM TRAVELERS, MORGAN DECIDED THESE WERE A
FAKE WHEN HIS LOCAL NAGE OFFICERS ASSURED HIM THAT TRAVELERS, IN FACT,
HAD PAID THE CLAIM.
NAGE ASSERTS, AS HAD BEEN NOTED, THAT IN ANY EVENT ITS ACTIVITIES IN
RESPECT TO INSURANCE WERE CONFINED TO THE PERIOD PRIOR TO APRIL 25, AND
THAT THE INSURANCE COVERAGE WAS FOR ONLY 6 MONTHS. THERE IS NO QUESTION
BUT THAT NAGE'S PRIMARY DRIVE TO SECURE MEMBERSHIP APPLICATIONS OCCURRED
BEFORE APRIL 25. HOWEVER, AS THE TESTIMONY OF EMPLOYEE MORGAN AND
OTHERS SHOWS, NAGE SUPPORTERS CONTINUED TO SECURE MEMBERSHIP
APPLICATIONS AFTER THAT DATE AND TO DISCUSS THE ADVANTAGES OF THE
INSURANCE OFFERED BY NAGE IN CONNECTION WITH MEMBERSHIP. AT LEAST 95
APPLICATIONS HELD BY LOCAL NAGE OFFICER HAMPTON WERE SIGNED AFTER APRIL
25. /23/
FURTHER, THE DISTRIBUTION OF INSURANCE CERTIFICATES AND MEMBERSHIP
CARDS MENTIONED ABOVE WERE ADMITTEDLY MADE IN MAY AND JUNE (NAGE BRIEF
P. 17), AND THE INSURANCE PAYMENT TO THE WIDOW PHELPS WAS MADE IN JULY
AND WELL PUBLICIZED THEREAFTER. ISSUES OF THE "FEDNEWS", AS WELL AS
OTHER PIECES OF LITERATURE EMPHASIZING THE INSURANCE ISSUE WERE
DISTRIBUTED AFTER APRIL 25 UP TO THE ELECTION. IT IS DIFFICULT TO
DETERMINE THE TIMES OF DISTRIBUTION OF SUCH LITERATURE, PARTICULARLY
SINCE MATERIAL PREVIOUSLY USED PROBABLY CONTINUED CURRENT IN THE PLANT.
HOWEVER, IT IS CLEAR THAT IN THE LATTER STAGES OF THE CAMPAIGN, INDEED
AFTER THE EFFECTIVE DATE OF THE LAST ELECTION "AGREEMENT" (NOVEMBER 25),
THE FOLLOWING ITEMS RELATING TO THE INSURANCE ISSUE WERE FOUND IN THE
SHIPYARD AFTER DISTRIBUTION BY NAGE: MTC EXHIBIT 22X (ADVISING THAT
"NAGE GIVES EACH MEMBER A FREE $10,000 INSURANCE POLICY (ACCIDENT AND
DISMEMBERMENT) UNDERWRITTEN BY ONE OF THE NATION'S LARGEST INSURANCE
COMPANIES" FOUND IN THE SHIPYARD ON NOVEMBER 26); MTC EXHIBIT 22F (THE
FEDNEWS DATED NOVEMBER 30, FO6ND IN THE SHIPYARD NOVEMBER 28, CARRYING
THE USUAL AD FOR MEMBERS INCLUDING AN OFFER OF FREE INSURANCE AS WELL AS
A NEWS STORY CONCERNING AN INSURANCE PAYMENT); AND MTC EXHIBIT 22Z (A
LARGE FOUR PAGE PRINTED PIECE OBVIOUSLY MADE UP FOR THIS ELECTION,
CARRYING A BOX ON THE LAST PAGE HEADLINED, "OTHERS MAKE PROMISES ONLY
NAGE PAYS OFF," WITH A PICTURE OF AN INSURANCE PAYMENT TO A WIDOW OF A
NAGE MEMBER, AND A SHORT STORY LINE CONCERNING "$45,000 INSURANCE CLAIMS
PAID OUT BY NAGE OVER SIXTY DAY PERIOD . . . ," FOUND IN THE SHIPYARD ON
DECEMBER 1). /24/ IN ADDITION, ON ONE OCCASION JUST BEFORE THE
ELECTION, THE EVIDENCE SHOWS THAT A NATIONAL OFFICER OF NAGE WAS URGING
THE VALUE OF NAGE INSURANCE AS AN ARGUMENT TO SECURE SUPPORT OF THAT
ORGANIZATION.
INDEED, ON THE BASIS OF THE ORIGINAL OFFER OF 6 MONTHS FREE
INSURANCE, IT IS OBVIOUS THAT NAGE UNDERSTOOD THAT THE APPLICATION OF
THE FREE INSURANCE OFFER WOULD EXTEND BEYOND THE CHALLENGE DATE OF APRIL
25. THIS, OF COURSE, WAS DRAMATICALLY ILLUSTRATED IN THE CASE OF PHELPS
WHO DIED ON MAY 17, AND WHOSE WIDOW WAS PAID ON JULY 19. MOREOVER,
THERE IS SUBSTANTIAL EVIDENCE THAT, NOTWITHSTANDING THE ORIGINAL 6-MONTH
LIMITATION, THAT THE EMPLOYEES WERE LED TO BELIEVE THAT THEIR MEMBERSHIP
CONTINUED BEYOND THAT PERIOD, TOGETHER WITH INCIDENTS OF SUCH
MEMBERSHIP. THUS ONE MEMBERSHIP CARD IN EVIDENCE-- OFFERED AS TYPICAL--
BEARS THE YEAR 1970, WITHOUT QUALIFICATION. ONE OTHER CARD, TAKEN FROM
THE EMPLOYER'S FILES, SHOWS THE YEAR 1969, WITHOUT LIMITATION. THE NAGE
LOCALS WHICH WERE ORIGINALLY CHARTERED ON THE BASIS OF MEMBERSHIP
OBTAINED IN THIS WAY APPARENTLY CONTINUED TO FUNCTION. TWO NAGE
WITNESSES, ONE A LOCAL OFFICER, TESTIFIED THAT THEY CONTINUE TO CONSIDER
THEMSELVES MEMBERS OF NAGE AND COVERED BY THE INSURANCE, THOUGH THEY
HAVE PAID NO DUES. THERE CAN BE NO QUESTION BUT THAT THE ISSUE OF FREE
INSURANCE TO UNIT EMPLOYEES OF THE EMPLOYER WHO JOINED NAGE, WITHOUT
OBLIGATION TO THOSE EMPLOYEES, CONTINUE TO BE A LIVE ISSUE AFTER APRIL
25, AND UP TO THE TIME OF THE ELECTION. THE MATTER WAS CLEARLY DEBATED
AMONG THE EMPLOYEES DURING THIS PERIOD.
NAGE ARGUES THAT, NEVERTHELESS, THIS WAS A MINOR ISSUE, BLOWN UP BY
MTC AND NOT RELIED UPON BY NAGE. NAGE ASSERTS THAT MTC WAS A
DISCREDITED ORGANIZATION AND THE THRUST OF THE NAGE CAMPAIGN WAS
DIRECTED AT MTC DEFICIENCIES. IT IS NOTED HOWEVER, THAT THE INSURANCE
MATTER BECAME AN ISSUE BECAUSE NAGE ORIGINALLY DECIDED IT WAS TO ITS
ADVANTAGE TO MAKE THE OFFER OF FREE INSURANCE. MTC'S CAMPAIGN WAS IN
RESPONSE. IN EFFECT, NAGE CONTENDS THAT IT WON THE ALLEGIANCE OF THE
EMPLOYEES WITHOUT THE INSURANCE ISSUE. I HAVE CAREFULLY READ THE NAGE
LITERATURE. IT APPEARS TO ME VIGOROUS AND RELEVANT TO THE ISSUES OF
REPRESENTATION, IN LARGE PART. THE PROBLEM IS THAT NAGE DID INTRUDE THE
INSURANCE ISSUE INTO THE CAMPAIGN. IT IS IMPOSSIBLE TO DETERMINE
WHETHER NAGE COULD HAVE WON WITHOUT THE ISSUE. IT OBVIOUSLY HAD
SUBSTANTIAL IMPACT UPON THE EMPLOYEES. WHETHER THIS AFFORDS GROUNDS FOR
SETTING THE ELECTION ASIDE MUST BE CONSIDERED.
ALL OF THE PARTIES AGREE THAT THE ONE DECIDED CASE WHICH HAS
CONSIDERED AN ISSUE SIMILAR THAT PRESENTED HERE, IS WAGNER ELECTRIC
CORPORATION, 167 NLRB 532. IN THAT CASE, THE UNION THERE CONCERNED
ENGAGED IN CERTAIN CONDUCT IN A PREELECTION CAMPAIGN, INCLUDING "MAILING
TO ELIGIBLE EMPLOYEES A CERTIFICATE OF GROUP INSURANCE SUPPLYING $500
LIFE, UP TO $1,000 ACCIDENTAL DEATH, AND $100 FUNERAL EXPENSES COVERAGE,
AND A NUMBER OF LEAFLETS DESCRIBING THE POLICY AND ITS APPLICATION TO
EMPLOYEES WHO JOINED THE UNION," WHICH WAS ALLEGED TO CONSTITUTE GROUNDS
FOR SETTING ASIDE THE ELECTION WON BY THE UNION. THE REGIONAL DIRECTOR
OF THE NATIONAL LABOR RELATIONS BOARD RECOMMENDED THAT THE OBJECTIONS TO
THE UNION'S CONDUCT BE OVERRULED ON THE GROUND THAT THE OFFER OF
INSURANCE WAS AN INCIDENT OF MEMBERSHIP WHICH THE UNION WAS OBLIGATED TO
EXTEND TO UNIT EMPLOYEES WHO SIGNED APPLICATIONS FOR MEMBERSHIP IN THAT
CASE (ALTHOUGH THE UNION WAIVED THEIR MEMBERSHIP DUES FOR A LIMITED
TIME), JUST AS IT WAS ENJOYED BY OTHER MEMBERS OF THE UNION, /25/ AND
SINCE IT WAS AN ESTABLISHED POLICY OF THE BOARD THAT MERE WAIVER OF
MEMBERSHIP FEES AND DUES IN AN ELECTION CAMPAIGN DOES NOT AFFORD GROUNDS
FOR SETTING AN ELECTION ASIDE (DIT-MCO, INC., SUPRA.), AND SINCE NO
MISREPRESENTATION HAD OCCURRED, THE UNION'S CONDUCT SHOULD NOT BE
CONSIDERED TO RAISE A SUBSTANTIAL AND MATERIAL ISSUE AFFECTING THE
RESULTS OF THE ELECTION. THE BOARD DISAGREED AND SET THE ELECTION
ASIDE, STATING (167 NLRB AT 533) :
WE DO NOT AGREE WITH THE REGIONAL DIRECTOR'S ANALYSIS OF THE PROBLEM
PRESENTED BY THE OBJECTIONS HERE, FOR WE PERCEIVE A SUBSTANTIVE
DISTINCTION BETWEEN THIS GIFT OF LIFE INSURANCE COVERAGE AND A WAIVER OF
INITIATION FEES, WITH WHICH THE REGIONAL DIRECTOR EQUATES IT. WHERE
THERE IS A WAIVER OF INITIATION FEES, THERE IS NO ENHANCEMENT OF THE
EMPLOYEES' ECONOMIC POSITION, BUT MERELY AN AVOIDANCE OF A POSSIBLE
FUTURE LIABILITY. MOREOVER SUCH WAIVER IS A CUSTOMARY PRACTICE IN
ORGANIZING CAMPAIGNS. IN CONTRAST, THE GIFT OF IMMEDIATE LIFE INSURANCE
COVERAGE IS A TANGIBLE ECONOMIC BENEFIT AND IS MOST UNUSUAL.
IT IS OUR VIEW THAT THE GIFT OF LIFE INSURANCE COVERAGE TO THE
PROSPECTIVE VOTERS IS MORE AKIN TO AN EMPLOYER'S GRANT OF A WAGE
INCREASE IN ANTICIPATION OF A REPRESENTATION ELECTION THAN IT IS TO A
WAIVER OF UNION INITIATION FEES AND THAT IT SUBJECTS THE DONEES TO A
CONSTRAINT TO VOTE FOR THE DONOR UNION. IN THIS CONNECTION IT IS NOTED
THAT COVERAGE WAS AUTOMATIC AND REQUIRED NO PHYSICAL EXAMINATION OR
MEDICAL REPORT. WE CONCLUDE THAT BY SUCH A GIFT THE PETITIONER
DESTROYED THE ATMOSPHERE WHICH THE BOARD SEEKS TO PRESERVE FOR ITS
ELECTIONS IN ORDER THAT EMPLOYEES MAY EXERCISE FREEDOM OF CHOICE ON
REPRESENTATION QUESTIONS. ACCORDINGLY, WE SHALL SET ASIDE THE ELECTION
AND DIRECT THAT A SECOND ELECTION BE HELD. /26/
NAGE ARGUES THAT THE BOARD'S DECISION IS NOT BINDING UPON THE
ASSISTANT SECRETARY (AND THAT THE BOARD LACKS EXPERTISE IN ELECTIONS IN
THE PUBLIC SECTOR); THAT UNIONS IN THE PUBLIC SECTOR ARE ACCUSTOMED TO
MAKING OFFERS SUCH AS INVOLVED HERE TO ATTRACT EMPLOYEES; THAT IT WAS
OBLIGATED TO EXTEND THE INSURANCE BENEFITS TO THERE UNIT EMPLOYEES
(ALTHOUGH THEY PAID NO FEES) AS IT EXTENDED THIS BENEFIT TO OTHER
MEMBERS; THAT THIS MATTER IS GOVERNED BY AN ESTABLISHED POLICY OF THE
NAVY (SEE NAGE EXH. 1, ENCLOSURE TO ATTACHMENT D, PP. 9-10), NOT TO
INVALIDATE AN ELECTION BASED ON AN OFFER OF FREE MEMBERSHIP WHICH IS NOT
CONDITIONED ON HOW EMPLOYEES VOTE; AND FURTHER THAT THE PRESENT
SITUATION IS OTHERWISE DISTINGUISHABLE FROM THE WAGNER CASE.
THE BOARD'S DECISIONS ARE NOT BINDING HERE. HOWEVER, ITS 35 YEARS OF
EXPERIENCE IN DEALING WITH QUESTIONS OF REPRESENTATION OF EMPLOYEES IS
NOT LIGHTLY TO BE DISREGARDED. INDEED, IT IS NOTED THAT THE NAVY, IN
OVERRULING THE OBJECTIONS HEREIN, GAVE EXTENSIVE CONSIDERATION TO THE
PRECEDENTS DEVELOPED BY THE BOARD. NO REASON IS SUGGESTED THAT WOULD
INDICATE THAT EMPLOYEES ENGAGED IN A SHIPYARD RUN BY THE GOVERNMENT
WOULD BE DIFFERENTLY AFFECTED BY THE OFFER OF GIFTS TO OBTAIN THEIR
FAVOR THAN WOULD EMPLOYEES IN A PRIVATE SHIPYARD. RATHER NAGE ARGUES
THAT BECAUSE OF THE "LIMITED RANGE OF ISSUES TO PUT BEFORE FEDERAL
EMPLOYEES" AFFORDED UNION REPRESENTING FEDERAL EMPLOYEES (BRIEF P. 44),
A DIFFERENT STANDARD SHOULD OBTAIN. THIS, HOWEVER, MISSES THE POINT:
IF THE CONDUCT INVOLVED PREVENTS A FREE AND FAIR ELECTION, OR TENDS TO
CORRUPT THE ELECTION PROCESS-- WHETHER IN THE PRIVATE OR PUBLIC SECTOR--
IT SHOULD BE HELD IMPERMISSIBLE.
IT IS FURTHER CLEAR THAT THERE HAS BEEN NO PAST NAVY PRACTICE, AS
SUCH, TO APPROVE THE OFFER OR GRANT OF GIFT TO OBTAIN SUPPORT IN AN
ELECTION CAMPAIGN. IN NAVY'S DECISION OF JANUARY 30, 1970, WHICH IS
STATED TO BE ADVISORY TO THE ASSISTANT SECRETARY, THE NAVY FOUND THE
RATIONABLE UNDERLYING THE BOARD'S DECISION IN DIT-MCO, INC., TO BE
APPLICABLE, BUT REFUSED TO MAKE THE DISTINCTION THE BOARD MADE IN WAGNER
ELECTRIC IN THIS CASE.
NAGE ASSERTS, IN ADDITION, THAT THIS MATTER, AS WELL AS OTHERS
DISCUSSED ABOVE, WERE DETERMINED BY THE ASSISTANT SECRETARY IN HIS
DECISION OF NOVEMBER 21, OVERRULING MTC'S CHALLENGE OF THE VALIDITY OF
NAGE'S SHOWING OF INTEREST, AND THAT THIS DECISION IS RES ADJUDICATA IN
THIS CASE, AND THAT THE ASSISTANT IS ESTOPPED FROM CHANGING HIS
POSITION. IT HAS LONG BEEN SETTLED, HOWEVER, THAT PRINCIPLES SUCH AS
RES ADJUDICATA AND ESTOPPEL ARE NOT NECESSARILY BINDING IN THE FIELD OF
ADMINISTRATIVE LAW. SEE N.L.R.B. V. THE BALTIMORE TRANSIT COMPANY, 140
F. 2D 51, 54-55. MOREOVER, IT IS CLEAR, IN ANY EVENT, THAT THE
ASSISTANT SECRETARY HAS NOT MADE A PRIOR DECISION UPON THE ISSUES IN
THIS MATTER. IN HIS DECISION OF NOVEMBER 21, THE ASSISTANT SECRETARY
MERELY PASSED UPON THE NAGE'S CONDUCT OCCURING PRIOR TO APRIL 25 AS IT
AFFECTED NAGE'S SHOWING OF INTEREST IN SUPPORT OF ITS CHALLENGE TO MTC'S
REPRESENTATIVE STATUS. THE ASSISTANT SECRETARY DID NOT PASS UPON THE
EFFECT OF NAGE'S CONDUCT AFTER APRIL 25, SO FAR AS APPEARS, OR THE
EFFECT OF NAGE'S CONDUCT AS A WHOLE UPON THE ELECTION WHICH HAS NOT THEN
BEEN HELD. THE FACT THAT THESE OBJECTIONS WERE ORDERED TO HEARING
BEFORE THE EXAMINER IN AN INDICATION THAT THE ASSISTANT SECRETARY DID
NOT CONSIDER THAT THEY HAD BEEN PREVIOUSLY DETERMINED.
IN THE LAST ANALYSIS, IT SHOULD BE OBVIOUS BEYOND ARGUMENT THAT ANY
PRACTICE OF VOTE BUYING SHOULD BE HELD IMPRESSIBLE. /27/ NOT ALL
ADMINISTRATORS EXERCISING RESPONSIBILITY IN THIS AREA, MAY AGREE AS TO
WHERE THE LINE SHOULD BE DRAWN. SEE, E.G., BUZZA CARDOZA, 177 NLRB NO.
38 (DISSENTING OPTION OF MEMBER ZAGORIA). /28/ HOWEVER, IF THE CONDUCT
DETAILED IN THIS MATTER SHOULD NOT BE HELD IMPERMISSIBLE IN AN ELECTION
TO DETERMINE REPRESENTATION, IT WOULD BE DIFFICULT, IF NOT IMPOSSIBLE,
TO DETERMINE WHAT KIND OF GIFT, OR IF ANY, WOULD TEND TO CORRUPT THE
ELECTION PROCESS. FROM THE START OF ITS ATTEMPT TO UNSEAT MTC AS
EXCLUSIVE BARGAINING AGENT, NAGE MADE A DELIBERATE DECISION TO EMPHASIZE
THAT ITS SUPPORTERS WOULD BE COMPENSATED, BY DIRECT MONETARY PAYMENTS OR
OTHER TANGIBLE CONSIDERATION OF VALUE. NAGE NOT ONLY PUT ITSELF IN A
POSITION WHERE IT WAS COMPELLED TO MAKE VERY SUBSTANTIAL GIFT TO THE
FAMILY OF ONE OF ITS SUPPORTERS DURING THE CRITICAL PERIOD BEFORE THE
ELECTION, BUT BY ITS DELAY IN MAKING THE PAYMENT (FROM MAY 17 TO JULY
19, OTHERWISE UNEXPLAINED, BROUGHT THE GIFT CLOSE TO THE ELECTION, AND
NAGE THEREAFTER CAPITALIZED UPON THE GIFT AS ELECTION PROPAGANDA. /29/
I HAVE A GREAT DEAL OF SYMPATHY FOR THE ARGUMENT OF NAGE THAT ITS
WRITTEN CAMPAIGN AT THE END LARGELY EMPHASIZED "BREAD AND BUTTER"
ISSUES, NOT INSURANCE. BUT AS PREVIOUSLY NOTED THE THREADS ARE
IMPOSSIBLE TO DISENTANGLE. A GOVERNMENT ELECTION AMONG GOVERNMENT
EMPLOYEES TO DETERMINE THEIR REPRESENTATION IN MATTERS AFFECTING THEIR
DAILY WORKING LIVES IS A SERIOUS MATTER. IN ANALAGOUS ELECTIONS AMONG
EMPLOYEES OF PRIVATE EMPLOYEES, THE BOARD HAS HELD THE PRACTICES OF THE
MARKET PLACE DO NOT COMPORT WITH THE HIGH STANDARD REQUIRED IN
REPRESENTATION ELECTIONS, FOR THEY TEND TO "DESTROY THE ATMOSPHERE" IN
WHICH "EMPLOYEES MAY EXERCISE FREEDOM OF CHOICE". SEE WAGNER ELECTRIC,
SUPRA. NO LESS RIGOROUS STANDARD SHOULD OBTAIN FOR SUCH ELECTIONS AMONG
GOVERNMENT EMPLOYEES.
FOR THE REASONS STATED, IT IS RECOMMENDED THAT OBJECTIONS FOUR AND
FIVE INSOFAR AS THEY RELATE TO THE NAGE OFFER AND GRANT OF FREE
INSURANCE TO THE UNIT EMPLOYEES BE SUSTAINED AND THE ELECTION HELD
DECEMBER 4, 1969, BE SET ASIDE AND A NEW ELECTION BE DIRECTED UNDER THE
TERMS OF EXECUTIVE ORDER 11941, AND IN ACCORDANCE WITH THE APPLICABLE
RULES AND REGULATIONS OF THE ASSISTANT SECRETARY. /30/
DATED AT WASHINGTON, D.C.
DECEMBER 7, 1970
PAGE . . . LINES . . . CORRECTION
1 . . . 1-25 . . . OMIT WHOLE PAGE. REPORTER INADVERTANTLY RECORDED
OFF THE RECORD COMMENT.
2 . . . 1-22 . . . (THROUGH THE WORD "GENTLEMEN") OMIT THIS MATERIAL.
REPORTER RECORDED OFF THE RECORD COMMENT.
795 . . . 15 . . . INSERT THE NOTATION "A" BEFORE "WELL, ABOUT THE
ONLY THING WE," AND PARAGRAPH, TO SHOW THAT THIS IS THE ANSWER TO THE
QUESTION.
846 . . . 25 . . . CHANGE "S" TO "X"
1000 . . . 24 . . . CHANGE "RULES" TO "RESULTS."
1115 . . . 14 . . . CHANGE "P" TO "3"
1168 . . . 3 . . . INSERT THE NOTATION "Q" BEFORE "PRIOR," AND
PARAGRAPH TO SHOW THAT THIS IS THE BEGINNING OF A NEW QUESTION.
/1/ THE RECORD INDICATES THAT THE INTERVENOR MAY BE MORE PROPERLY
DESIGNATED AS "FIFTH NAVAL DISTRICT METAL TRADES COUNCIL, AFL-CIO,"
WHICH WILL HEREIN BE REFERRED TO AS "MTC".
/2/ WITH AGREEMENT OF THE PARTIES, I HAVE HAD REFERENCE TO CERTAIN
DOCUMENTS, SPECIFICALLY NOTED HEREIN, FILED WITH THE APPROPRIATE
GOVERNMENT AGENCY BY ONE OR ANOTHER OF THE PARTIES, OR ISSUED BY A
GOVERNMENT AGENCY TO ONE OF THE PARTIES. IN ACCORDANCE WITH PRIOR
ARRANGEMENTS, AFTER THE CLOSE OF THE HEARING, COUNSEL FOR MTC SUBMITTED
TWO EXHIBITS FOR RECEIPT INTO EVIDENCE TOGETHER WITH A STIPULATION FROM
COUNSEL FOR NAGE THAT THEY MIGHT BE RECEIVED AND EVIDENCE OF SERVICE ON
THE EMPLOYER. NO OBJECTION HAVING BEEN RECEIVED FROM THE EMPLOYER, THE
DOCUMENT ENTITLED "RESOLUTION #68" IS RECEIVED AS MTC EXHIBIT 50, THE
DOCUMENT ENTITLED "CLAIM STATEMENT" IS RECEIVED AS MTC EXHIBIT 51, AND
THE STIPULATION OF COUNSEL IS RECEIVED AS MTC EXHIBIT 52.
/3/ THE GENERAL SAVINGS CLAUSE PROVIDED IN THE CASE OF THE "REPEAL OF
ANY STATUTE," 1 USC 29, RELIED UPON BY NAGE, IS NOT ONLY OF DOUBTFUL
APPLICATION HERE, BUT WOULD SEEM PARTICULARLY INAPPLICABLE IN THIS
INSTANCE SINCE AT THE TIME OF THE EXPIRATION OF THE PRIOR EXECUTIVE
ORDER NO OBLIGATION UPON THE EMPLOYER TO ACCORD NAGE RECOGNITION AS
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES INVOLVED HAD BEEN PERFECTED.
/4/ IN CONNECTION WITH THIS OBJECTION, THE ASSISTANT SECRETARY ALSO
STATED IN HIS DECISION THAT "THE VALIDITY OF THE CHALLENGED ALLEGEDLY
UNLAWFUL NO-ELECTIONEERING RULE IN EFFECT AT THE EMPLOYER'S OPERATIONS
AND ITS ENFORCEMENT WILL BE CONSIDERED IN THE COURSE OF THE HEARING TO
BE SCHEDULED ON OBJECTION 1(B)."
/5/ NAGE AT THE HEARING OBJECTED TO THE TAKING OF ANY EVIDENCE PRIOR
TO THE DATE OF ITS CHALLENGE, APRIL 25. THIS WAS OVERRULED ON THE BASIS
THAT THE OBJECTIONS UPON WHICH A HEARING WAS DIRECTED COVERED THE YEAR
BEFORE THE ELECTION. THIS POINT IS MORE SIGNIFICANT IN RESPECT TO OTHER
OBJECTIONS AND IS DISCUSSED HEREINAFTER.
/6/ THOUGH THE AGREEMENT WAS NOT SIGNED BY MTC, THERE IS NO
CONTENTION THAT IT WAS NOT BINDING. IT IS NOTED THAT FPM 711-6
PROVIDES, IN THE PARAGRAPH NUMBERED 4, THAT IN INSTANCES IN WHICH
AGREEMENT TO AN ELECTION AGREEMENT CANNOT BE REACHED, THE EMPLOYER,
GIVING DUE CONSIDERATION TO THE VIEWS OF THE PARTIES, SHALL ESTABLISH
THE RULES GOVERNING CAMPAIGNING.
/7/ ALTHOUGH NOT INVOLVED IN THE CHARLESTON CASE, THE EMPLOYER'S
REQUIREMENT THAT ALL LITERATURE DISTRIBUTED ON ITS PREMISES BE SUBMITTED
FOR PRIOR APPROVAL LIKEWISE CONSTITUTED AN IMPERMISSIBLE PRIOR RESTRAINT
UPON REASONABLE COMMUNICATION WITH THE EMPLOYER AND THE EMPLOYEES' RIGHT
TO INFORMATION. SEE, E.G., N.L.R.B. V. ORLEANS MFG. CO., INC. 412 F.2D
94, 96.
/8/ EXECUTIVE ORDER 10988 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 12. THE CIVIL SERVICE COMMISSION SHALL ESTABLISH AND MAINTAIN A
PROGRAM TO ASSIST IN CARRYING OUT THE OBJECTIVES OF THIS ORDER . . .
/9/ UNDER THE PROVISIONS OF EXECUTIVE ORDER 10988 AND THE GUIDELINES
OF FPM 711-6, IN ORDER TO MOUNT A CHALLENGE, NAGE WAS REQUIRED TO
PRESENT A SHOWING THAT IT REPRESENTED AT LEAST 30 PERCENT OF THE
EMPLOYEES IN THE UNIT, INCLUDING EVIDENCE THAT IT HAD "A STABLE
MEMBERSHIP" OF NO LESS THAN 10 PERCENT OF THE UNIT, BY A TIME NO LATER
THAN THE 60TH DAY PRIOR TO THE TERMINATION DATE OF THE EXISTING CONTRACT
(IN THIS INSTANCE, BY APRIL 25).
/10/ THE AD, INDEED, INTRODUCES MANY OF THE MAJOR AREAS OF ARGUMENT
USED BY NAGE TO SECURE ADHERENTS IN THE ELECTION CAMPAIGN.
/11/ TWOMEY AND SOME OTHERS WHO JOINED IN 1968 BEFORE THE DECISION
WAS MADE TO OFFER FREE DUES, HAD PAID DUES OR FEES INTO A LOCAL NAGE
TREASURY. THESE WERE LATER RETURNED TO THE EMPLOYEES WHO PAID THEM.
/12/ THE SO CALLED "CASH RECEIPT" FORM WHICH WAS USED BY NAGE DURING
ITS CAMPAIGN WAS IDENTIFIED AS MTC EXH. 38. IT IS A FORM OF APPLICATION
FOR MEMBERSHIP. IT IS CLEAR THAT NO MONEY WAS SUBMITTED IN CONNECTION
WITH THIS DOCUMENT. THOUGH WYNN HAMPTON, PRESIDENT OF THE LOCAL NAGE
COUNCIL, TESTIFIED THAT HE COULD FIND NO CASH RECEIPT OR AUTHORIZATIONS
IN HIS FILES DATED AFTER APRIL 25, I DO NOT CONSIDER THIS A SUFFICIENT
BASIS TO DISCREDIT BEALE.
/13/ IN SOME OF ITS LITERATURE, NAGE STATED THAT THE INSURANCE
OFFERED WOULD COST THE INDIVIDUALS COVERED $40 A YEAR ON THE OPEN
MARKET. IN ONE PIECE OF LITERATURE, MTC COUNTERED BY CLAIMING THAT THE
INSURANCE COST NAGE ONLY 6[ PER MONTH FOR EACH MEMBER. 4 /14/ AS
PREVIOUSLY NOTED AT LEAST SOME OF THE EMPLOYEES DISCUSSED THIS OFFER IN
TERMS OF THE SIX MONTHS LIMITATION. ACCORDING TO EMPLOYEE BEALE, WHEN
(APPARENTLY AFTER APRIL 25) HE SOLICITED EMPLOYEES FOR NAGE ON THE BASIS
OF "FREE INSURANCE AND FREE DUES AND THAT METAL TRADES WAS A
CONFLICT-OF-INTEREST UNION," A NUMBER OF THE MEN REPLIED, "I WILL GO
ALONG WITH IT FOR SIX MONTHS BECAUSE OF THE INSURANCE."
/15/ IN A RELEASE ON BEHALF OF NAGE ISSUED AFTER MAY 2, IT WAS STATED
THAT "THE M.T.C. IS TRYING TO PUT DOUBTS IN THE MINDS OF N.A.G.E.
MEMBERS ABOUT INSURANCE. LET US SINCERELY HOPE THAT NONE OF OUR
CO-WORKERS OR THIER FAMILIES FIND IT NECESSARY TO APPLY FOR THIS
INSURANCE. SHOULD TRAGEDY STRIKE, IT WOULD BE COMFORTING TO KNOW THAT
YOUR CHILDREN'S EDUCATION AND THE BASIC REQUIREMENTS FOR LIFE WOULD BE
PROVIDED."
/16/ THERE IS NO EVIDENCE IN THE RECORD OF DUES PAYING MEMBERS OF
NAGE IN THE UNIT INVOLVED AFTER JANUARY 1969, HOWEVER.
/17/ A MIMEOGRAPHED RELEASE ON BEHALF OF NAGE TOOK NOTES OF THESE
DEVELOPMENTS AS FOLLOWS: N.A.G.E. IS A SERIOUS THREAT TO M.T.C.'S GRAVY
TRAIN IN THE SHIPYARD M.T.C. HAS OPENLY ACCUSED INDIVIDUALS AND N.A.G.E.
OF LYING. THEY SAID NO MEMBERSHIP CARDS OR INSURANCE POLICIES WOULD BE
ISSUED. THEY FURTHER SAID THAT THE INSURANCE WOULD NOT BE ANY GOOD.
ASK THEM ABOUT THESE STATEMENTS NOW AND SEE WHAT THEY SAY.
NORMAN PHELPS SHOP 56, A N.A.G.E. MEMBER, WAS RECENTLY KILLED IN A
HOME ACCIDENT. OUR SINCERE SYMPATHY TO THE WIDOW AND ALL MEMBERS OF HIS
FA?ILY. MONEY CAN NEVER REPLACE THE LOSS OF A LOVED ONE, BUT WE HOPE
THAT THE MONEY HIS WIDOW RECEIVES FROM HIS N.A.G.E. INSURANCE POLICY
WILL HELP TO EASE THE FINANCIAL BURDEN AND HARDSHIP DURING THIS TRYING
TIME.
/18/ I HAVE ALSO CONSIDERED THE FACT THAT IN THE RULES PROMULGATED BY
THE SECRETARY OF LABOR FOR NOMINATION OF ARBITRATORS UNDER SECTION 11 OF
EXECUTIVE ORDER 10988 (CFR TITLE 29, PART 25.1) IT IS STATED THAT A
REQUEST FOR APPOINTMENT OF AN ARBITRATOR WOULD BE CONSIDERED, INTER
ALIA, "ON A QUESTION RELATING TO MATTERS AFFECTING THE RESULTS OF AN
ELECTION WHICH TOOK PLACE AFTER THE AGREEMENT TO CONDUCT THE ELECTION
HAD BEEN ENTERED INTO . . ." IT IS NOT CLEAR TO ME WHETHER, IN ADDITION
TO ESTABLISHING A CONDITION FOR THE APPOINTMENT OF AN ARBITRATOR (A
MATTER NOT INVOLVED HERE), THIS WAS INTENDED TO ESTABLISH A GENERAL
CUT-OFF DATE, OR EVEN WHETHER IT WOULD BE APPLICABLE TO A SITUATION LIKE
THE PRESENT WHERE THERE WAS NOT AN ALL-PARTY AGREEMENT TO THE ELECTION.
IN ANY EVENT, IT WOULD BE UNREALISTIC UPON THE FACTS OF THIS CASE TO
HOLD THAT CONDUCT OCCURRING MORE THAN 9 DAYS BEFORE THE ELECTION COULD
NOT AFFECT THE ELECTION. NAGE HAS NOT SO CONTENDED. IT IS FURTHER
OBVIOUS THAT THE TERMS OF THE NOTICE OF HEARING IN THIS MATTER PRECLUDE
ANY SUCH CUT-OFF DATE.
/19/ SOME EVIDENCE WAS ADDUCED AT THE HEARING, THOUGH NOT MUCH
STRESSED IN THE NAGE BRIEF, THE MTC OFFERED TO PAY EMPLOYEES TO WORK FOR
MTC RATHER THAN NAGE. THERE IS NO EVIDENCE THAT THIS WAS CONTINGENT
UPON SUCCESS IN SECURING MEMBERSHIPS OR VOTES. THE SITUATIONS ARE
DIFFERENT. MOREOVER, THE NAGE CONDUCT CAN HARDLY BE JUSTIFIED BY MTC
SUBSEQUENT COUNTERMOVES.
/20/ IT IS ALSO ARGUED THAT SINCE THE UNIT EMPLOYEES WHO EXECUTED
FROM 1187 THEREBY BECAME MEMBERS OF NAGE, THE ORGANIZATION WOULD HAVE
ENGAGED "IN ILLEGAL DISCRIMINATION AGAINST ITS OWN MEMBERS" IF IT HAD
NOT EXTENDED THE INSURANCE TO THEM. (NAGE BRIEF PP. 46-7). HOWEVER, IT
IS CLEAR FROM RESOLUTION 68 ADOPTED AT THE NAGE 1968 CONVENTION THAT
EXTENSION OF SUCH BENEFITS TO MERE SIGNERS OF FORM 1187 IS A MATTER OF
DISCRETION ON THE PART OF THE PRESIDENT OF NAGE. AN OBVIOUS DISTINCTION
BETWEEN THE MEMBERS LIES IN THEIR FINANCIAL CONTRIBUTION. IN FACT,
BASIC TO THE NAGE ARGUMENT IS THE CLAIM THAT THE UNIT EMPLOYEES HELD A
DIFFERENT MEMBERSHIP STATUS DURING THIS PERIOD THAN OTHER MEMBERS WHO
PAID DUES. OBVIOUSLY, NO MATTER HOW PHRASED BY NAGE, THE INSURANCE FOR
PAYING MEMBERS WAS NOT "FREE" IN THE NORMAL SENSE OF THE WORD.
/21/ THERE ARE CERTAIN INDICATIONS IN THE NAGE LITERATURE TO WHICH I
HAVE BEEN REFERRED (NAGE BRIEF, PP. 22-28), SUCH AS THE "FEDNEWS" AND
MTC EXH. 6, URGING THE EXECUTION OF A DUES ALLOTMENT FORM IN CONJUNCTION
WITH THE OFFER OF FREE INSURANCE, BUT I AM CERTAIN THAT ON THIS RECORD
(AND WITHOUT THE CONNECTION BEING SPECIFICALLY POINTED OUT) AN EMPLOYEE
WOULD HAVE BEEN HARD PUT TO UNDERSTAND THAT ONE WAS CONTINGENT UPON THE
OTHER.
/22/ I WOULD CONSIDER IT REASONABLE THAT A LAY PERSON IF HE READ THE
QUALIFICATION ON PARTICIPATION CONTAINED ON THE INSIDE OF THE
CERTIFICATE (AND SOME WITNESSES TESTIFIED THAT THEY DID NOT READ IT)
WOULD CONSIDER IT INAPPLICABLE TO HIM IN THE CIRCUMSTANCES. OTHERWISE
WHY SHOULD NAGE SEND HIM THE CERTIFICATE.
/23/ I HAVE NOTED THE TESTIMONY OF D. O. CROUCH THAT AT A MEETING
ABOUT APRIL 1, IT WAS STATED THAT NO MORE APPLICATIONS FOR MEMBERSHIP
WOULD BE TAKEN, ALTHOUGH NAGE THEN WAS CONSIDERABLY SHORT OF THE NUMBER
OF AUTHORIZATIONS NEEDED TO MOUNT A CHALLENGE. ASSUMING THIS WAS THE
INTENT, THE EVIDENCE SHOWS THAT IT WAS NOT FOLLOWED.
/24/ IN ADDITION, NAGE SECURED APPROVAL FROM THE EMPLOYER IN EARLY
OCTOBER TO DISTRIBUTE TWO OTHER PIECES RELATING TO THIS ISSUE (MTC EXHS.
8 AND 22K). NAGE WITNESS ANDERSON TESTIFIED THAT THEY WERE NOT USED.
WHILE SOME DOUBT IS RAISED BY ANDERSON'S TESTIMONY IN ANOTHER PLACE THAT
IF THE LITERATURE WAS SUBMITTED FOR APPROVAL, IT MUST HAVE BEEN USED, IT
IS NOT CONSIDERED NECESSARY TO RESOLVE THIS MATTER.
/25/ IT APPEARS THAT THE UNION'S INSURANCE POLICY IN THE WAGNER CASE
APPLIED ONLY TO REGULAR MEMBERS WHO WERE HAVING THEIR DUES DEDUCTED, BUT
THE UNION HAD SECURED A WAIVER OF THIS PROVISION FROM ITS INSURANCE
CARRIER FOR THE EMPLOYEES OF WAGNER ELECTRIC CORPORATION WHOSE
APPLICATIONS IT WAS SEEKING.
/26/ IT IS NOTED THAT THE BOARD'S DISTINCTION BETWEEN A GIFT OF
INSURANCE AND WAIVER OF MEMBERSHIP FEES APPEARS TO HAVE RECEIVED THE
APPROVAL OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT. SEE N.L.R.B. V.
MARTIN BLDG. MATERIAL CO., INC., F. 2D, 75 LRRM 2161 (SEPT. 1, 1970),
CITING THE WAGNER ELECTRIC CASE AT FN. 5.
/27/ COMPARE 18 USCA 597, TITLED "EXPENDITURES TO INFLUENCE VOTING,"
WHICH MAKES IT A CRIME TO MAKE OR OFFER TO MAKE "AN EXPENDITURE" TO ANY
PERSON TO INFLUENCE THAT PERSON'S PARTICIPATION IN AN ELECTION, WHICH,
IT HAS BEEN HELD, HAS A CLEAR PURPOSE TO PREVENT CORRUPTION IN PUBLIC
ELECTIONS. SEE U.S. V. FOOTE, 42 F.SUPP. 717, 720 (D.C. DEL.)
/28/ AMONG OTHER CASES WHICH THE EXAMINER HAS CONSIDERED IN THIS
REGARD, ARE THE FOLLOWING (AND THE CASES THEREIN CITED): HOLLYWOOD
PLASTICS, INC., 177 NLRB NO. 40; JACQUELINE COCHRAN, INC., 177 NLRB NO.
39; CENTRAL CABLE CORP., 170 NLRB NO. 172.
/29/ IT IS ALSO OBVIOUS THAT NAGE'S FAILURE TO CLARIFY THE ISSUE OF
THE IDENTITY OF THE INSURER TO THE EMPLOYEES GENERALLY, A MATTER WHICH
IT OBVIOUSLY KNEW WAS OF CONCERN, HAD THE EFFECT OF ENHANCING NAGE'S
POSITION. IN THE ABSENCE OF CLEAR ACTION BY NAGE, ITS LOCAL SUPPORTERS
WERE LED TO DISCOUNT MTC INFORMATION ON THE ISSUES AS FAKERY.
/30/ ATTACHED HERETO AS APPENDIX A ARE A FEW ITEMS IN THE TRANSCRIPT
WHICH APPEAR TO REQUIRE CORRECTION IN ORDER TO AVERT CONFUSION.
1 A/SLMR 30; P. 162; CASE NO. 46-1754(RO); APRIL 22, 1971.
UNITED STATES NAVY DEPARTMENT,
UNITED STATES NAVAL WEAPONS STATION,
YORKTOWN, VIRGINIA
A/SLMR NO. 30
THE PETITIONER, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO
(IAFF) AND THE INCUMBENT INTERVENOR, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES (NAGE) SOUGHT TO REPRESENT A UNIT OF "FIREFIGHTERS" INCLUDING,
AMONG OTHERS, STATION CAPTAINS AT THE ACTIVITY. THE ACTIVITY DID NOT
CONTEST THE APPROPRIATENESS OF THE UNIT SOUGHT, BUT, IN OPPOSITION TO
THE IAFF AND THE NAGE, SOUGHT TO EXCLUDE CAPTAINS AS SUPERVISORS.
THE ASSISTANT SECRETARY FOUND THAT THE CAPTAINS WERE NOT
"SUPERVISORS" WITHIN THE MEANING OF EXECUTIVE ORDER 11491 AND THEREFORE
SHOULD BE INCLUDED IN THE FIREFIGHTER UNIT. IN THIS RESPECT, IT WAS
NOTED THAT WHILE THE CAPTAINS HAVE FUNCTIONS AND RESPONSIBILITIES THAT
SET THEM APART FROM OTHER FIREFIGHTERS, ANY AUTHORITY VESTED IN THEM IS
OF A ROUTINE OR CLERICAL NATURE NOT REQUIRING THE USE OF INDEPENDENT
JUDGEMENT. CAPTAINS SPEND A SUBSTANTIAL PORTION OF THEIR WORK DAY
PERFORMING DUTIES IDENTICAL TO OTHER FIREFIGHTERS. IN ADDITION,
CAPTAINS HAVE NO AUTHORITY TO HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL,
PROMOTE OR DISCHARGE EMPLOYEES AND WORK ASSIGNMENTS MADE BY CAPTAINS ARE
EITHER GOVERNED COMPLETELY BY ROTATION ROSTERS OR ARE OF A HIGHLY
ROUTINE NATURE NOT REQUIRING FOLLOW-UP SUPERVISIONS. WHILE THE CAPTAINS
HAVE EVALUATION AND RECOMMENDATION FUNCTIONS THEY DO NOT MAKE
"EFFECTIVE" RECOMMENDATIONS IN THAT THERE ARE ALWAYS HIGHER LEVELS OF
REVIEW AND THE RECOMMENDATIONS OF CAPTAINS OFTEN ARE REJECTED.
MOREOVER, THE EVIDENCE REVEALED THAT CAPTAINS HAVE NO LATITUDE IN THE
PERFORMANCE OF THEIR TRAINING FUNCTION AS IT IS GOVERNED COMPLETELY BY
PUBLISHED SCHEDULES AND THAT CAPTAINS SPEND A HIGH PROPORTION OF THEIR
TIME DOING "UNIT WORK." THE ASSISTANT SECRETARY NOTED THAT WHILE
CAPTAINS MAY BE THE HIGHEST RANKING FULL-TIME PERSONNEL IN A FIRE
STATION, ACKNOWLEDGED SUPERVISORS ARE ALWAYS CLOSE AT HAND AND IN FACT
SPEND A SUBSTANTIAL NUMBER OF HOURS AT THE STATIONS AND THAT A FINDING
OF SUPERVISORY STATUS FOR CAPTAINS WOULD RESULT IN AN EXTREMELY HIGH
RATIO OF SUPERVISORS TO UNIT PERSONNEL.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DIRECTED THAT AN
ELECTION BE HELD IN THE PETITIONED UNIT INCLUDING EMPLOYEES CLASSIFIED
AS CAPTAINS.
UNITED STATES DEPARTMENT OF THE NAVY,
UNITED STATES NAVAL WEAPONS STATION,
YORKTOWN, VIRGINIA
AND
INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, AFL-CIO
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER DOW E. WALKER. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED AS MODIFIED BELOW. /1/
UPON THE ENTIRE RECORD OF THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO, HEREIN CALLED
IAFF, SEEKS AN ELECTION IN A UNIT OF ALL FIREFIGHTERS, INCLUDING STATION
CAPTAINS AND FIRE INSPECTORS AT THE U.S. NAVAL WEAPONS STATION,
YORKTOWN, VIRGINIA. /2/ THE NAGE IS IN AGREEMENT WITH THE IAFF AS TO
THE APPROPRIATENESS OF THE CLAIMED UNIT.
WHILE NOT CONTESTING THE APPROPRIATENESS OF A UNIT OF FIREFIGHTERS AT
THE U.S.NAVAL WEAPONS STATION, YORKTOWN, VIRGINIA, THE ACTIVITY
CONTENDS, IN OPPOSITION TO THE IAFF AND THE NAGE, THAT EMPLOYEES
CLASSIFIED AS SUPERVISORY FIREFIGHTERS, (STRUCTURAL), COMMONLY AND
HEREIN REFERRED TO AS CAPTAINS, ARE SUPERVISORS WITHIN THE MEANING OF
SECTION 2(C) OF THE EXECUTIVE ORDER AND SHOULD THEREFORE BE EXCLUDED
FROM THE UNIT.
THE IAFF URGES AS AN ALTERNATIVE POSITION IN THE EVENT THE ASSISTANT
SECRETARY FINDS THAT CAPTAINS ARE SUPERVISORS, EMPLOYEES IN THAT
CLASSIFICATION SHOULD STILL BE GIVEN THE OPPORTUNITY TO SELECT THE IAFF
AS THEIR BARGAINING REPRESENTATIVE PURSUANT TO THE PROVISIONS OF SECTION
24(A)(2), ONE OF THE "SAVINGS CLAUSES" OF THE EXECUTIVE ORDER. THE
ACTIVITY CONTENDS THAT SECTION 24(A)(2) IS INAPPLICABLE TO THE FACTS OF
THE CASE.
THE FIRE PROTECTION DIVISION HAS A TOTAL COMPLEMENT OF 36 PERSONS.
/3/ THE DIVISION SO HEADED BY THE FIRE CHIEF (GS-11). WORKING UNDER THE
CHIEF ARE 2 ASSISTANT FIRE CHIEFS (GS-11). WORKING UNDER THE CHIEF ARE
2 ASSISTANT FIRE CHIEFS (GS-9), 1 CHIEF FIRE INSPECTOR (GS-8), /4/ 6
FIRE CAPTAINS (GS-6), 24 DRIVER OPERATORS AND FIRE FIGHTERS (GS-5 4
RESPECTIVELY), AND 2 FIRE INSPECTORS (GS-7). THE FIRE INSPECTORS REPORT
DIRECTLY TO THE CHIEF FIRE INSPECTOR. /5/
THE NAGE AND ACTIVITY HAVE FOR AT LEAST TWO YEARS HAD AN EXCLUSIVE
BARGAINING RELATIONSHIP AND COLLECTIVE BARGAINING AGREEMENT COVERING A
UNIT OF "ALL NONSUPERVISORY CIVILIAN FIREFIGHTERS AND FIRE INSPECTORS OF
THE NAVAL WEAPONS STATION, YORKTOWN, VIRGINIA." SPECIFICALLY EXCLUDED
FROM THE UNIT WERE "ALL SUPERVISORY FIREFIGHTERS PERSONNEL INCLUDING
FIRE CHIEF, ASSISTANT CHIEFS, AND FIRE CAPTAINS." BY ITS TERM, THE MOST
RECENT AGREEMENT BETWEEN THE PARTIES EXPIRED JANUARY 15, 1970.
THERE ARE 2 FIRE STATIONS AT THE ACTIVITY WHICH ARE CURRENTLY
OPERATIONAL AND A THIRD STATION, WHICH WAS RECENTLY CLOSED, IS NOW USED
FOR THE STORAGE OF EQUIPMENT. THE 2 OPERATIONAL STATIONS ARE LOCATED
APPROXIMATELY 4 MILES APART. EACH OF THE OPERATIONAL STATIONS HAS A
TOTAL OF 14 PERSONS ASSIGNED, 11 FIREFIGHTERS (BOTH DRIVER OPERATORS AND
FIRE FIGHTERS) AND 3 CAPTAINS. THIS GROUP IS DIVIDED INTO 3 SHIFT CREWS
CONSISTING OF 1 CAPTAIN AND 3 OR 4 FIREFIGHTERS, 4 BEING THE DESIRED
COMPLEMENT. EACH CREW WORKS A 24-HOUR SHIFT BEFORE BEING REPLACED BY
ANOTHER CREW. ALL FIRE PROTECTION DIVISION PERSONNEL, FROM THE CHIEF
DOWN, WORK THE SAME NUMBER OF HOURS PURSUANT TO GOVERNMENT REGULATIONS
AND ALL RECEIVE THE SAME PERCENTAGE PAY INCREMENT FOR WORKING SUNDAYS.
THERE IS ALWAYS A CAPTAIN ON DUTY AT EACH OF THE 2 STATIONS. IN THE
EVENT ONE OF THE 6 PERMANENT CAPTAINS IS NOT AVAILABLE, GENERALLY
BECAUSE OF LEAVE, ONE OF THE FIREFIGHTERS IS DESIGNATED TO ACT AS
CAPTAIN. THE ACTING CAPTAIN IS NORMALLY A GS-5 DRIVER OPERATOR BUT ON
OCCASION IT HAS BEEN A GS4 FIRE FIGHTER. BECAUSE OF THE OPERATION OF
THE SHIFT ROTATION, THERE IS ONE DRIVER OPERATOR WHO IS ASSIGNED
REGULARLY AS ACTING CAPTAIN ONE DAY A WEEK IN ADDITION TO FILLING IN
WHEN THE CAPTAIN IS ON LEAVE. /6/
THE CHIEF AND ASSISTANT CHIEF HAVE OFFICES AT SOME LOCATION OTHER
THAN THE FIRE STATIONS, BUT THE CHIEF'S HOME IS LOCATED WITHIN THE
ACTIVITY AND HE VISITS EACH STATION AT LEAST ONCE EACH DAY. THE 2
ASSISTANT CHIEFS ROTATE 24-HOUR SHIFTS AND THE ASSISTANT CHIEF ON DUTY
SPENDS THE NIGHT IN STATION 1. DURING THE DAY, THE ASSISTANT CHIEF ON
DUTY MAKES SEVERAL TRIPS TO EACH OF THE 2 STATIONS AND SPENDS A
SUBSTANTIAL NUMBER OF HOURS AT THE STATIONS. WHEN AN ASSISTANT CHIEF IS
ON LEAVE, ONE OF THE CAPTAINS FUNCTIONS AS ACTING ASSISTANT CHIEF, BUT
IN SUCH A CAPACITY THE CAPTAIN REMAINS AT HIS SAME GRADE AND DOES NOT
POSSESS THE ASSISTANT CHIEF'S AUTHORITY TO ISSUE DIRECTIVES AND MAKE
PERMANENT TRANSFERS.
THE EVIDENCE DISCLOSES THAT THE DAY-TO-DAY ACTIVITY OF A CREW IN THE
FIRE STATION FOLLOWS A FAIRLY ROUTINE PATTERN. THE CREW CHANGE TAKES
PLACE AT 7:30 AM. THE MORNING HOURS OF THE CREW ARE DEVOTED PRIMARILY
TO CONDUCTING BUILDING AND EQUIPMENT INSPECTIONS AND MAINTAINING
FIREFIGHTING EQUIPMENT. THE AFTERNOON OF EACH DAY IS DEVOTED TO 1 TO 2
HOURS OF TRAINING FOR THE FIREFIGHTING CREW. A FEW DAYS EACH WEEK A
CREW MIGHT LEAVE THE STATION TO PERFORM A "STANDBY," SUCH AS BEING AT A
HAZARDOUS FUELING OPERATION. THE SCHEDULED WORK DAY CONCLUDES AT 4:30
PM AND FROM THEN UNTIL 7:30 AM THE NEXT MORNING THE CREW REMAINS IN THE
STATION, STANDING BY IN CASE OF A FIRE ALARM. ON SATURDAY MORNINGS THE
CREW ENGAGES IN A FIREFIGHTING DRILL.
WITH RESPECT TO THE CONDUCTING OF INSPECTIONS, THE INSTRUCTION AS TO
WHAT BUILDINGS WILL BE INSPECTED ON EACH DAY COMES FROM THE CHIEF FIRE
INSPECTOR WHO IS ALSO RESPONSIBLE FOR MAINTAINING INSPECTION RECORDS.
IN THE CARRYING OUT OF THESE INSTRUCTIONS, THE RECORD REVEALS THAT THE
CAPTAINS PERFORM DUTIES IDENTICAL TO THE OTHER FIREFIGHTERS IN THAT THEY
ALSO GO TO THE DESIGNATED BUILDINGS AND PERFORM AN INSPECTION PURSUANT
TO ESTABLISHED PROCEDURE. /7/
THE TYPE OF DAILY MAINTENANCE PERFORMED BY THE CREW IS DESCRIBED ON
THE RECORD AS BEING OF HIGHLY ROUTINE NATURE AND NOT REQUIRING ANY
FOLLOWUP SUPERVISION. WHILE THE CAPTAINS MAY DESIGNATE A CREW MEMBER TO
PERFORM A SPECIFIC MAINTENANCE TASK, THE RECORD REFLECTS THAT THE CREWS
ARE WELL AWARE OF WHAT IS TO BE DONE AND THE WAY TO DO IT AND THAT THEY
RECEIVE NO SUBSEQUENT DIRECTION FROM THE CAPTAIN. THERE IS ALSO
TESTIMONY THAT THE CAPTAINS ON OCCASION PERFORM SUCH MENIAL TASKS AS
SWEEPING THE FLOORS. THE RECORD REVEALS THAT THE CAPTAINS HAVE NO
LATITUDE IN THE SELECTION OF EMPLOYEES FOR SUBSTANTIVE ASSIGNMENTS.
THERE ARE ROTATION ROSTERS FOR EACH CREW AND VARIOUS ASSIGNMENTS, SUCH
AS NIGHT WATCH, FOLLOW THESE PREDETERMINED ROSTERS. CAPTAINS CANNOT
MAKE PERMANENT TRANSFERS AND THE TEMPORARY ASSIGNMENT OF EMPLOYEES TO
ANOTHER STATION IS GOVERNED BY AN ESTABLISHED ROSTER. ALSO, THE
CAPTAINS CANNOT SCHEDULE OR ASSIGN OVERTIME.
THE CAPTAINS HAVE NO CONTROL OVER THE SCHEDULING OR CONTENT OF THE
DAILY TRAINING PROGRAMS, AS THEY ARE GOVERNED BY A TRAINING SCHEDULE
ESTABLISHED BY THE CHIEF. WHILE THESE DAILY TRAINING PROGRAMS ARE
GENERALLY CONDUCTED BY THE CAPTAIN ON DUTY, THE RECORD INDICATES THAT
THIS RESPONSIBILITY FLOWS MORE FROM HIS EXPERIENCE LEVEL RATHER THAN
FROM ANY POSITION OF AUTHORITY OVER THE OTHER FIREFIGHTERS. AT THE
SATURDAY MORNING FIREFIGHTING DRILLS, THE ASSISTANT CHIEF ON DUTY ALWAYS
ATTENDS TO OBSERVE AND CRITIQUE THE TRAINING.
THE CHIEF AND ASSISTANT CHIEF ON DUTY RESPOND TO ALL FIRE ALARMS AND
ARRIVE ON THE SCENE WITHIN 5 MINUTES OF THE CREW. THE HIGHEST RANKING
OFFICER ON THE SCENE IS "IN CHARGE" AND THIS MEANS THAT IT IS THE CHIEF
WHO DIRECTS THE CREW IN THE FIGHTING OF THE FIRE. WHILE IT MAY BE
THEORETICALLY THE RESPONSIBILITY OF THE CAPTAIN TO GET THE CREW TO THE
SITE OF THE ALARM, AS NOTED ABOVE THE CHIEF AND ASSISTANT CHIEF TAKE
OVER THE RESPONSIBILITY OF DIRECTING THE FIRE FIGHTING EFFORTS. DURING
THE COURSE OF FIGHTING THE FIRE, THE CAPTAIN ASSISTS IN ANY WAY HE CAN,
INCLUDING SUCH MANUAL DUTIES AS "LAYING THE HOSE."
CAPTAINS HAVE NO ROLE IN THE HIRING OF EMPLOYEES. WHILE SOME
EVIDENCE SUGGESTS THAT THE CAPTAINS ARE INVOLVED IN PERFORMANCE
EVALUATIONS, BOTH QUARTERLY AND ANNUALLY, AND PROMOTION RECOMMENDATIONS,
THE RECORD REFLECTS THAT THE CAPTAINS EXERCISE LITTLE IF ANY INDEPENDENT
JUDGMENT IN THE PERFORMANCE OF THESE TASKS AND THAT THEIR
RECOMMENDATIONS ARE NOT INDEPENDENTLY EFFECTIVE. AN ESTIMATED 75
PERCENT OF ALL RATINGS ARE "SATISFACTORY," WITH THE REMAINDER BEING
"OUTSTANDING." THE RECORD REVEALS THAT A CAPTAIN DOES NOT ATTEMPT TO
GIVE ANYTHING BUT THE ROUTINE "SATISFACTORY" RATING WITHOUT FIRST
DISCUSSING THE MATTER WITH AN ASSISTANT CHIEF AND OBTAINING, AT A
MINIMUM, HIS TACIT APPROVAL. PART OF THE EVALUATION PROCESS IS AN
EMPLOYEE INTERVIEW AT WHICH AN ASSISTANT CHIEF IS ALWAYS PRESENT. ANY
RECOMMENDATIONS FOR A MERIT AWARD ARE EXPOSED TO SEVERAL REVIEW LEVELS
AND THERE ARE NUMEROUS EXAMPLES OF SUCH RECOMMENDATIONS BY A CAPTAIN
BEING REJECTED. /8/ WHILE CAPTAINS ARE THE LOWEST GRADE WHICH SIT ON
RATING PANELS FOR GS-5 EVALUATIONS, SUCH PANELS ALWAYS CONSIST OF AN
ASSISTANT CHIEF.
THE RECORD REVEALS THAT CAPTAINS DO NOT POSSESS EFFECTIVE AUTHORITY
TO DISCIPLINE. AS TO AN OCCASION IN 1969 WHEN A "LETTER OF CAUTION" WAS
ISSUED OVER THE SIGNATURE OF A CAPTAIN, THE RECORD REFLECTS THAT THE
CAPTAIN'S INITIAL RECOMMENDATION ON DISCIPLINARY ACTION WAS REJECTED BY
THE CHIEF AND THAT THE CAPTAIN THEREAFTER DID NOT PARTICIPATE IN ANY OF
THE MANAGEMENT DISCUSSIONS LEADING UP TO THE DECISION AS TO WHAT ACTION
SHOULD BE TAKEN. THE PERFORMANCE OF THE MINISTERIAL ACTION OF SIGNING
THE LETTER OF CAUTION, WHICH HAD BEEN PREPARED BY THE SECURITY OFFICE,
DOES NOT MEAN THAT THE CAPTAIN CAN DISCIPLINE. FURTHERMORE, THE ACTION
TAKEN, THAT IS THE ISSUANCE OF A LETTER OF CAUTION, IS NOT A SPECIFIED
FORM OF DISCIPLINE UNDER NAVY REGULATIONS.
THE RECORD REFLECTS THAT THERE HAS NEVER BEEN AN OCCASION WHEN A
CAPTAIN HAS EVER PARTICIPATED IN THE PROCESSING OF A "FORMAL" GRIEVANCE.
WHILE UNDER THE EXPIRED AGREEMENT BETWEEN THE ACTIVITY AND THE NAGE,
THE CAPTAINS WERE DESIGNATED AS THE FIRST STEP OF THE GRIEVANCE
PROCEDURE, THEY NEVER ACTUALLY FUNCTIONED IN THAT CAPACITY, ONLY
HANDLING MINOR "COMPLAINTS" THAT MIGHT ARISE ON THE JOB WHICH COULD BE
RESOLVED WITHOUT THE EXERCISE OF ANY INDEPENDENT AUTHORITY.
ANNUAL LEAVE IS GRANTED PURSUANT TO A SYSTEM WHICH LEAVES NO
DISCRETION AVAILABLE TO THE CAPTAINS. REGULATIONS PROVIDE THAT THERE
MUST, AT ALL TIMES, BE A SPECIFIED NUMBER OF MEN ON DUTY STATUS AND
LEAVE REQUESTS ARE APPROVED ON A FIRST-COME-SERVED BASIS UP TO THE LIMIT
OF THE PREDETERMINED COMPLEMENT.
THE 6 INCUMBENT CAPTAINS HAVE TAKEN A HOME-STUDY TRAINING PROGRAM ON
GENERAL SUPERVISORY TECHNIQUE, BUT THE RECORD INDICATES THAT THE SAME
COURSE IS AVAILABLE TO PERSONS BELOW THE GRADE OF CAPTAIN AND THE TAKING
OF SUCH A COURSE WAS NOT A CONDITION PRECEDENT TO BECOMING A CAPTAIN.
WHILE THE EVIDENCE SET FORTH ABOVE INDICATES THAT CAPTAINS HAVE
FUNCTIONS AND RESPONSIBILITIES THAT SET THEM APART FROM OTHER
FIREFIGHTERS, I VIEW THE AUTHORITY VESTED IN THE CAPTAINS TO BE OF A
ROUTINE OR CLERICAL NATURE NOT REQUIRING THE USE OF INDEPENDENT
JUDGEMENT. THE CAPTAINS CLEARLY HAVE NO AUTHORITY TO HIRE, TRANSFER,
SUSPEND, LAY OFF, RECALL, PROMOTE OR DISCHARGE EMPLOYEES. THE EXTENT OF
THEIR CAPACITY TO MAKE ASSIGNMENTS IS RELATED TO TASKS WHICH ARE EITHER
SO ROUTINE AS TO NOT REQUIRE SUPERVISION OR ARE PURSUANT TO ROSTERS
THAT, IN EFFECT, ELIMINATE ANY JUDGMENTAL FACTOR. THE CONTENTION THAT
CAPTAINS HAVE THE AUTHORITY "EFFECTIVELY TO RECOMMEND" PERSONNEL ACTION
IS, IN MY VIEW, REBUTTED BY THE EVIDENCE WHICH ESTABLISHES THAT ALL OF
THEIR RECOMMENDATIONS ARE SUBJECT TO AT LEAST TWO LAYERS OF REVIEW, THE
"OUT OF THE ORDINARY" RECOMMENDATIONS ARE CLEARED BEFORE BEING MADE AND
THAT RECOMMENDATIONS BY CAPTAINS ARE OFTEN REJECTED WITHOUT EXPLANATION
TO THE CAPTAIN. AS TO THE CAPTAINS' TRAINING FUNCTION, THEY CLEARLY
HAVE NO AUTHORITY TO MAKE ANY DECISIONS AS TO SCHEDULING AND CONTENT AND
THEIR TEACHING ROLE IS APPARENTLY DERIVED MORE FROM THE LEVEL OF THEIR
EXPERIENCE THAN FROM THEIR POSITION. FURTHER, WITH RESPECT TO THE
CAPTAINS' ROLE IN CONDUCTING INSPECTIONS, IT APPEARS THAT THIS FUNCTION
IS ALSO PERFORMED BY THE FIREFIGHTERS IN THE CLAIMED UNIT.
WITH RESPECT TO THE FACT THAT A FINDING THAT THE CAPTAINS ARE
SUPERVISORS WOULD RESULT IN A SUPERVISOR-EMPLOYEE RATION OF 9
SUPERVISORS FOR 24 UNIT PERSONNEL, EXCLUDING THESE PERSONS ENGAGED
SOLELY IN FIRE INSPECTION WORK, THE ACTIVITY CONTENDS THAT THIS RATIO IS
NOT UNREASONABLE WHEN CONSIDERATION IS GIVEN TO THE FACT THAT THE
CAPTAIN IS THE HIGHEST RANKING FULL-TIME EMPLOYEE IN A FIRE STATION.
HOWEVER, THE EVIDENCE ESTABLISHES THAT THE ACTIVITY IS KEPT AWARE OF
WHAT IS OCCURRING IN THE STATIONS BY VIRTUE OF THE CLOSE PROXIMITY AND
REPEATED VISITS OF THE CHIEF AND ASSISTANT CHIEF ON DUTY. THUS, EVEN
DURING THE NIGHT HOURS THE CAPTAINS ARE NOT WITHOUT CLOSE SUPERVISION IN
THE FORM OF THE ASSISTANT CHIEF WHO IS SLEEPING IN ONE OF THE STATIONS.
IN ADDITION, WHILE A CAPTAIN MAY BE THEORETICALLY IN CHARGE OF GETTING
THE CREW TO A FIRE ALARM, THE DURATION OF THIS AUTHORITY IS EXTREMELY
LIMITED AS THE RECORD REVEALS THAT THE CHIEF AND ASSISTANT CHIEF ARRIVE
AT THE SCENE WITHIN MINUTES OF THE CREW. MOREOVER, IF THE CAPTAINS WERE
FOUND TO BE SUPERVISORS IT WOULD MEAN THAT WHEN A CREW WAS FIGHTING A
FIRE THERE WOULD BE 3 SUPERVISORS AND 4 UNIT EMPLOYEES.
BASED ON THE FOREGOING, AND NOTING PARTICULARLY THAT THE CAPTAINS'
AUTHORITY IS GENERALLY OF A ROUTINE OR CLERICAL NATURE NOT REQUIRING THE
USE OF INDEPENDENT JUDGMENT; THAT THEY SPEND A SUBSTANTIAL PORTION OF
THEIR WORK TIME PERFORMING DUTIES IDENTICAL TO OTHER FIREFIGHTERS; THAT
THEY HAVE NO AUTHORITY TO HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL,
PROMOTE OR DISCHARGE EMPLOYEES; THAT THEIR WORK ASSIGNMENT AUTHORITY IS
GOVERNED COMPLETELY BY ROTATION ROSTERS OR IS OF A HIGHLY ROUTINE
NATURE; THAT THEIR GRADE IS LOWER THAN THE INCLUDED FIRE INSPECTORS;
AND THAT THE EVIDENCE ESTABLISHED THAT THEY DO NOT MAKE EFFECTIVE
RECOMMENDATIONS WITH RESPECT TO PERSONNEL ACTION, I FIND THAT THE
EMPLOYEES CLASSIFIED AS CAPTAINS DO NOT POSSESS THE INDICIA OF
SUPERVISORY STATUS AS PROVIDED IN SECTION 2(C) OF THE EXECUTIVE ORDER
AND, THEREFORE, THEY SHOULD BE INCLUDED IN ANY UNIT FOUND APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. /9/
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES SOUGHT BY THE IAFF
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491:
ALL FIRE FIGHTERS INCLUDING FIRE CAPTAIN AND FIRE INSPECTORS AT THE
U.S. NAVAL WEAPONS STATION, YORKTOWN, VIRGINIA EXCLUDING FIRE CHIEF,
ASSISTANT FIRE CHIEFS, CHIEF FIRE INSPECTOR, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK OTHER THAN IN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD, BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO; OR BY NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES; OR BY NEITHER.
DATED, WASHINGTON, D.C.
APRIL 22, 1971
/1/ THE HEARING OFFICER REJECTED THE ACTIVITY'S TENDER OF A COPY OF
AN AGREEMENT BETWEEN THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
HEREIN CALLED NAGE, AND THE ACTIVITY. THE ACTIVITY TOOK EXCEPTION TO
THIS RULING OF THE HEARING OFFICER. IN THE CIRCUMSTANCES, I CONCLUDE
THAT THE AGREEMENT IN QUESTION IS RELEVANT TO THE ISSUES BEFORE ME.
ACCORDINGLY, I REVERSE THE HEARING OFFICER'S RULINGS AND RECEIVE THE
AGREEMENT INTO THE RECORD. SINCE, IN REACHING THE DECISION IN THIS
CASE, I HAVE CONSIDERED THE ENTIRE RECORD, INCLUDING THE AGREEMENT IN
QUESTION, THE HEARING OFFICER'S REJECTION OF THE AGREEMENT AT THE
HEARING WAS NOT FOUND TO CONSTITUTE A PREJUDICIAL ERROR.
/2/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/3/ THERE IS NO CONTENTION THAT THE MILITARY PERSONNEL WHO MAKE UP
THE "FIRE BRIGADE" AND "AUXILIARY FIREMEN," WHOSE FUNCTIONS IS TO
SUPPLEMENT THE CIVILIAN FIREFIGHTERS IN CASE OF EMERGENCY, SHOULD BE
INCLUDED IN THE PETITIONED UNIT. THESE MILITARY PERSONNEL ARE "ON CALL"
TO REPORT TO FIRES, AND THE RECORD REVEALS THAT FIREFIGHTING IS NOT
THIER REGULAR ASSIGNED DUTY.
/4/ THE PARTIES STIPULATED THAT THE CHIEF FIRE INSPECTOR IS A
SUPERVISOR AS DEFINED BY SECTION 2(C) OF THE EXECUTIVE ORDER AND SHOULD
THEREFORE BE EXCLUDED FROM THE UNIT.
/5/ NO ONE CONTESTS THE INCLUSION OF THE FIRE INSPECTORS IN THE UNIT.
/6/ THERE IS NO CONTENTION BY ANY PARTY THAT THE DESIGNATED ACTING
CAPTAIN MAY BE A SUPERVISOR. THE TESTIMONY INDICATES THAT AN ACTING
CAPTAIN DOES NOT POSSESS THE AUTHORITY GRANTED A CAPTAIN IN THAT AN
ACTING CAPTAIN CANNOT APPROVE LEAVE REQUESTS OR INITIATE EVALUATIONS.
/7/ THE EVIDENCE REVEALS THAT CAPTAINS SPEND APPROXIMATELY 40 PERCENT
OF THEIR WORK TIME ENGAGED IN THESE INSPECTORS AWAY FROM THE FIRE
STATION.
/8/ THE RECORD REVEALS THAT IN 1969 A GROUP OF CAPTAINS SUBMITTED 8
RECOMMENDATIONS FOR OUTSTANDING PERFORMANCE RATINGS, ALL OF WHICH WERE
OVERRULED BY THE CHIEF.
/9/ INASMUCH AS I HAVE CONCLUDED THAT THE CAPTAINS ARE NOT
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE EXECUTIVE ORDER,
IT WAS CONSIDERED UNNECESSARY TO DECIDE THE IAFF'S ALTERNATIVE THEORY
CONCERNING THE APPLICATION OF SECTION 24(A)(2) OF THE EXECUTIVE ORDER.
HOWEVER, IT SHOULD BE NOTED THAT SECTION 24(A)(2) BY ITS TERMS REFERS TO
UNITS OF SUPERVISORS RATHER THAN TO THE MIXING OF SUPERVISORS IN UNITS
APPROPRIATE PURSUANT TO SECTION 10 OF THE ORDER. MOREOVER, THE STUDY
COMMITTEE'S REPORT AND RECOMMENDATIONS ON LABOR-MANAGEMENT RELATIONS IN
THE FEDERAL SERVICE, THE "LEGISLATIVE HISTORY" OF THE EXECUTIVE ORDER,
ALSO INDICATED THAT SECTION 24(A)(2) REFERS TO SUPERVISORS BEING
REPRESENTED IN SEPARATE UNITS BY LABOR ORGANIZATIONS WHICH TRADITIONALLY
REPRESENT SUCH SUPERVISORS IN THE PRIVATE SECTOR.
1 A/SLMR 29; P. 158; CASE NO. 42-1169; APRIL 21, 1971.
ARMY AND AIR FORCE EXCHANGE SERVICE,
MACDILL AIR FORCE BASE CONSOLIDATED
EXCHANGE
A/SLMR NO.29
THE SUBJECT CASE, INVOLVING A REPRESENTATION PETITION FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2624 (AFGE),
PRESENTED THE QUESTION WHETHER A UNIT LIMITED TO CERTAIN NONAPPROPRIATED
FUND EMPLOYEES WORKING AT A MILITARY INSTALLATION WAS APPROPRIATE IN
VIEW OF THE ACTIVITY'S CONTENTION THAT A CERTAIN DEGREE OF MANAGEMENT
INTEGRATION EXISTED RELATING TO EMPLOYEES IN A GROUPING OF THREE
MILITARY INSTALLATIONS.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
SINGLE INSTALLATION UNIT WAS APPROPRIATE. WHILE ACKNOWLEDGING THE
EXISTENCE OF A CERTAIN DEGREE OF MANAGEMENT INTEGRATION, HE NOTED THAT
THE EMPLOYEES IN THE UNIT PETITIONED FOR SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST IN THAT THEY HAVE COMMON SUPERVISION, WORKING
CONDITIONS, GRIEVANCE PROCEDURES, FRINGE BENEFITS, DISCIPLINARY POLICIES
AND PROMOTION POLICIES. HE EMPHASIZED THE LACK OF EMPLOYEE INTERCHANGE,
AND THE GREAT DISTANCE BETWEEN THE INSTALLATIONS. ADDITIONALLY, HE
FOUND THAT NOTWITHSTANDING THE FACT THAT THE REQUESTED BARGAINING UNIT
DID NOT COMPORT TO THE ACTIVITY'S ADMINISTRATIVE ORGANIZATION, IN THE
CIRCUMSTANCES, THE ESTABLISHMENT OF A UNIT AS PETITIONED FOR WOULD NOT
FAIL TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS,
PARTICULARLY IN VIEW OF THE BARGAINING HISTORY WITH RESPECT TO THE
MACDILL EMPLOYEES ON A SINGLE INSTALLATION BASIS.
ACCORDINGLY, THE ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE
SINGLE LOCATION UNIT.
ARMY AND AIR FORCE EXCHANGE SERVICE,
MACDILL AIR FORCE BASE CONSOLIDATED
EXCHANGE /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2624 /2/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER SEYMOUR X. ALSHER. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, /3/ INCLUDING THE ACTIVITY'S
BRIEF, /4/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2624,
HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL REGULAR FULL-TIME
AND REGULAR PART-TIME CIVILIAN EMPLOYEES EMPLOYED BY THE MACDILL AIR
FORCE BASE, FLORIDA, EXCLUDING TEMPORARY FULL-TIME, TEMPORARY PART-TIME
AND CASUAL EMPLOYEES; EMPLOYEES ENGAGED IN PERSONNEL MANAGERIAL
EXECUTIVES; PURELY CLERICAL CAPACITY; MILITARY PERSONNEL; MANAGERIAL
EXECUTIVES; SUPERVISORS; MANAGERIAL TRAINEE EMPLOYEES; ON-CALL
EMPLOYEES; PROFESSIONAL EMPLOYEES; GUARDS AND WATCHMEN; EMPLOYEES OF
MACDILL AIR FORCE BASE CONSOLIDATED EXCHANGE AT MCCOY AIR FORCE BASE,
FLORIDA; AND EMPLOYEES OF MACDILL AIR FORCE BASE CONSOLIDATED EXCHANGE
AT AVON PARK BOMBING RANGE, FLORIDA. /5/
THE ACTIVITY CONTENDS THAT THE UNIT SOUGHT IS INAPPROPRIATE AND THAT
ANY APPROPRIATE UNIT MUST INCLUDE ITS EMPLOYEES LOCATED AT MCCOY AIR
FORCE BASE, HEREIN CALLED MCCOY, AND AVON PARK BOMBING RANGE, HEREIN
CALLED AVON PARK. IT SUBMITS THAT THE EMPLOYEES AT MACDILL AIR FORCE
BASE, HEREIN CALLED MACDILL, DO NOT ENJOY A COMMUNITY OF INTEREST CLEAR
AND IDENTIFIABLE FROM THAT OF EMPLOYEES AT MCCOY AND AVON PARK; THAT
RECOGNITION OF THE UNIT SOUGHT WOULD NOT PROMOTE EFFECTIVE DEALINGS
BETWEEN THE ACTIVITY AND THE AFGE; AND THAT IT WOULD NOT PROMOTE
EFFICIENCY OF AGENCY OPERATIONS. MOREOVER, THE ACTIVITY URGES THAT THE
PETITION IS BASED SOLELY UPON THE AFGE'S EXTENT OF EMPLOYEE
ORGANIZATION, WHICH CONTROLLING FACTOR IS PROSCRIBED IN SECTION 10 OF
THE EXECUTIVE ORDER.
THE ACTIVITY IS A COMPONENT OF THE ARMY AND AIR FORCE EXCHANGE
SERVICE WITH AN ASSIGNED FUNCTION OF PROVIDING AUTHORIZED PATRON WITH
CERTAIN MERCHANDISE AND SERVICES OF NECESSITY AND CONVENIENCE. TO CARRY
OUT THIS MISSION, THE ACTIVITY OPERATES RETAIL AND SERVICE FACILITIES AT
MACDILL, MCCOY AND AVON PARK. THIS PARTICULAR GROUPING OF INSTALLATIONS
WAS FIRST DOCUMENTED IN A "CONSOLIDATED AGREEMENT," DATED JANUARY 25,
1968, SIGNED BY THE RESPECTIVE MILITARY COMMANDERS. THE "INTEGRATED
CONCEPT" WAS LATER FORMALIZED IN THE ABOVE-MENTIONED "MANAGEMENT AND
OPERATION OF CONUS EXCHANGES UNDER THE INTEGRATED MANAGEMENT CONCEPT OF
EXCHANGE OPERATION," DATED AUGUST 23, 1970. THE LATTER DOCUMENT
PRESCRIBED RESPONSIBILITIES FOR THE MILITARY COMMANDERS AND THE ACTIVITY
GENERAL MANAGERS THROUGHOUT THE CONTINENTAL UNITED STATES.
AT MACDILL, THE ACTIVITY EMPLOYS 286 PERSONS, OF WHOM APPROXIMATELY
177-182 ARE AGREED BY THE PARTIES TO BE IN THE UNIT SOUGHT. THE
OPERATIONS CONSIST OF ONE MAIN RETAIL STORE UNDER THE DIRECT SUPERVISION
OF ONE MANAGER, TWO ASSISTANT MANAGERS, FIVE DEPARTMENT MANAGERS, ONE
STOCKROOM MANAGER, AND AN UNKNOWN NUMBER OF "SUPERVISORY SALES CLERKS;"
AND ONE SERVICE CAFETERIA WITH A MANAGER, AN ASSISTANT MANAGER AND TWO
SHIFT SUPERVISORS; ONE "CONVENIENCE STORE" WITH A MANAGER, AN ASSISTANT
MANAGER, A DEPARTMENT A MANAGER AND A "SUPERVISORY SALES CLERK;" AN
UNKNOWN NUMBER OF SNACK BARS WITH EACH SUPERVISED BY A SINGLE MANAGER;
AND A GARDEN SHOP WITH AN UNKNOWN SUPERVISORY STRUCTURE.
AT MCCOY, WHICH IS LOCATED 90 MILES FROM MACDILL AND 95 MILES FROM
AVON PARK, THE ACTIVITY EMPLOYS APPROXIMATELY 98 PERSONS IN A MAIN
RETAIN STORE, A CAFETERIA, A CONVENIENCE STORE, A SERVICE STATION, THREE
SNACK BARS AND A GARDEN SHOP. THE IMMEDIATE SUPERVISORY STRUCTURE
PARALLELS THAT AT MCDILL.
THE ACTIVITY EMPLOYS THREE PERSONS AT ITS AVON PARK OPERATIONS
CONSISTING OF A SMALL MAIN STORE WITH A GASOLINE PUMP AND SUPERVISED BY
A SINGLE MANAGER. AVON PARK IS LOCATED 105 MILES FROM MACDILL.
A SINGLE GENERAL MANAGER IS THE TOP ECHELON OF SUPERVISION OF THE
ACTIVITY'S OPERATIONS AT MACDILL, MCCOY AND AVON PARK. IMMEDIATELY
SUBORDINATE TO HIM IS A MANAGER, EACH, FOR THE RETAIL OPERATIONS, FOOD
OPERATIONS AND SERVICE OPERATIONS. THERE IS A SINGLE PERSONNEL MANAGER.
OFFICED AT MACDILL, THESE INDIVIDUALS EXTEND THEIR SUPERVISORY
FUNCTIONS TO MCCOY AND AVON PARK, AS WELL AS MACDILL. MCCOY'S
FACILITIES ARE SUPERVISED IMMEDIATELY BY A SINGLE RESIDENT MANAGER. AT
AVON PARK, WHERE THERE IS NO RESIDENT MANAGER, THE SUPERVISION FLOWS
FROM THE ACTIVITY'S RETAIL OPERATIONS MANAGER DIRECTLY TO THE LOCAL
BRANCH MANAGER. BY COMPARISON, THE ACTIVITY'S RETAIL OPERATIONS MANAGER
EXERCISES SUPERVISION AT MACDILL AND MCCOY ONLY IN A FUNCTIONAL ASPECT
AS IT APPLIES TO RETAIL OPERATIONS. AS MACDILL HAS NO RESIDENT MANAGER,
APPARENTLY THE GENERAL MANAGER PERFORMS THAT FUNCTION AT THAT
INSTALLATION.
ONE OF THE ACTIVITY'S THREE OPERATIONS MANAGERS VISITS MCCOY ALMOST
DAILY, AND EACH VISITS AVON PARK APPROXIMATELY ONCE MONTHLY. THEY
APPARENTLY HAVE DAILY TELEPHONIC COMMUNICATIONS WITH MCCOY, AND THE
RECORD REVEALS THAT AT LEAST ONE PARTICULAR MANAGER HAS WEEKLY
TELEPHONIC CONTACT WITH AVON PARK. THE PERSONNEL OFFICE AVERAGES FOUR
TELEPHONE CONVERSATIONS DAILY WITH MCCOY AND "ON AN AS NEEDED BASIS"
WITH AVON PARK. ITS REPRESENTATIVE VISITS MCCOY FOUR TIMES MONTHLY AND
AVON PARK TWO OR THREE TIMES YEARLY.
ALTHOUGH THE JANUARY 1968 "CONSOLIDATED AGREEMENT" CHARGED THE
RESPECTIVE MILITARY COMMANDERS WITH CERTAIN BASIC OPERATIONAL
RESPONSIBILITIES, INCLUDING SOME RELATING TO PERSONNEL MATTERS, THE NEW
AUGUST 1970 REGULATIONS, CITED ABOVE, APPEAR TO REASSIGN A PORTION OF
THESE FUNCTIONS TO CIVILIAN PERSONNEL OF THE ACTIVITY. SPECIFICALLY,
THE MILITARY COMMANDER IS RELIEVED OF ALL RESPONSIBILITIES RELATED TO
CIVILIAN PERSONNEL ADMINISTRATION, SUCH AS GRIEVANCES AND LABOR
RELATIONS, AND THESE RESPONSIBILITIES ARE VESTED IN THE GENERAL MANAGER.
/6/ HOWEVER, THE MILITARY COMMANDER " . . . RETAINS VITAL SUPPORT
RESPONSIBILITIES AND ESSENTIAL PREROGATIVES IN RELATION TO THE BASE OR
PORT EXCHANGE OPERATION. HE DETERMINES THE SERVICE NEEDED . . . AND HE
EVALUATES THE SERVICE RENDERED. ADDITIONALLY, THE LOCAL INSTALLATION,
IN COORDINATION WITH THE ACTIVITY'S CHIEF, DETERMINES THE HOURS OF
OPERATION.
THE ACTIVITY'S HIRING PROCESS IS INITIATED BY A REQUEST FROM THE
BRANCH MANAGER. UPON APPROVAL BY THE GENERAL MANAGER OF THE LEGITIMACY
OF THE NEED, THE BRANCH MANAGER SELECTS AN INDIVIDUAL FROM A LIST OF
QUALIFIED APPLICANTS SUPPLIED BY THE PERSONNEL OFFICE. THE ACTIVITY
CONCEDED THAT A BRANCH MANAGER'S SELECTION DECISION HAS NEVER BEEN
OVERRULED. FINAL DECISIONS REGARDING DISCHARGES FOR CAUSE ARE MADE BY
THE GENERAL MANAGER, BASED UPON RECOMMENDATIONS OF THE BRANCH MANAGERS.
EMPLOYEE REPRIMANDS ARE EFFECTED BY THE IMMEDIATE SUPERVISOR, BUT WITH
PRIOR CLEARANCE FROM THE GENERAL MANAGER IN CASES OF WRITTEN REPRIMAND.
EMPLOYEE PROMOTION REQUIRES PROCESSING THROUGH THE BRANCH MANAGER, THE
APPROPRIATE OPERATIONS MANAGER AND, ULTIMATELY, TO THE GENERAL MANAGER.
THE PERSONNEL FILES OF ALL EMPLOYEES ARE RETAINED AT THE MACDILL
PERSONNEL OFFICE. ALTHOUGH EMPLOYEE TIME CARDS ARE MAILED DIRECTLY FROM
THE RESPECTIVE INSTALLATION TO THE ACTIVITY'S HEADQUARTERS IN DALLAS,
TEXAS, ALL CHECKS ARE MAILED TO MACDILL FOR RECORDATION AND ULTIMATE
DISTRIBUTION.
ALL NONSUPERVISORY EMPLOYEES OF THE DIFFERENT FACILITIES DESCRIBED
ABOVE ARE HOURLY PAID IN ACCORDANCE WITH A WAGE SCALE PLAN FLOWING FROM
AN ANNUAL REGIONAL WAGE SURVEY. ALL ARE GOVERNED BY PUBLISHED JOB
DESCRIPTIONS WHICH ARE STANDARD THROUGHOUT THE WORLD. THE RECORD
REVEALS THAT EMPLOYEES AT EACH OF THE THREE MILITARY INSTALLATIONS
PERFORM GENERALLY THE SAME DUTIES AS THEIR COUNTERPARTS ELSEWHERE.
HOWEVER, AS THERE IS NO MAINTENANCE CREW PERMANENTLY ASSIGNED TO MCCOY,
THE MACDILL CREW SERVICES THAT FACILITY ON AN APPROXIMATE WEEKLY BASIS.
OTHER THAN A SINGLE CITED INSTANCE OF A MAINTENANCE CREW'S TEMPORARY
DUTY ASSIGNMENT TO MCCOY, AND SEVERAL ISOLATED OVERNIGHT TRIPS TO MCCOY
BY MACDILL-BASED ACCOUNTING CLERKS, THE RECORD DISCLOSES NO EMPLOYEE
INTERCHANGE BETWEEN MCCOY, MACDILL AND AVON PARK.
ALTHOUGH OVERTIME WORK MUST BE APPROVED BY THE APPROPRIATE OPERATIONS
MANAGER AND THE GENERAL MANAGER, EMERGENCY SITUATIONS MAY OCCUR WHERE
OVERTIME IS PERFORMED PRIOR TO APPROVAL OF THE GENERAL MANAGER.
ALTHOUGH THE ACTIVITY CONTENDS THAT VACATION LEAVE MUST BE REQUESTED
THROUGH THE BRANCH MANAGER TO THE APPROPRIATE OPERATIONS MANAGER, IT IS
CONCEDED THAT A BRANCH MANAGER'S APPROVAL HAS NEVER BEEN OVERRULED.
EMERGENCY LEAVE MAY BE AUTHORIZED BY A BRANCH MANAGER WITHOUT PRIOR
APPROVAL OF THE OPERATIONS MANAGER.
ALL REGULAR FULL-TIME EMPLOYEES OF THE ACTIVITY, THROUGHOUT THE
WORLD, ENJOY IDENTICAL FRINGE BENEFITS, SUCH AS GROUP INSURANCE PLANS,
RETIREMENT PROGRAMS, OVERTIME PAY COMPUTATION, PAID HOLIDAYS, MILITARY
LEAVE, MATERNITY LEAVE, SICK LEAVE, STEP ADVANCEMENTS AND TRAINING
PROGRAMS.
THE HISTORY OF BARGAINING INVOLVING THE ACTIVITY'S EMPLOYEES IS
LIMITED. ON FEBRUARY 21, 1968, PURSUANT TO EXECUTIVE ORDER 10988, THE
ACTIVITY ACCORDED THE AFGE FORMAL RECOGNITION IN SUBSTANTIALLY THE SAME
UNIT AS PETITIONED HEREIN, WHICH RECOGNITION HAS BEEN IN EFFECT SINCE
THAT TIME. SIGNIFICANTLY, THIS GRANT WAS MADE SUBSEQUENT TO THE JANUARY
28, 1968 EFFECTIVE DATE OF THE "CONSOLIDATED AGREEMENT" PREVIOUSLY NOTED
HEREIN. SUBSEQUENT TO THE GRANT OF FORMAL RECOGNITION, THE ACTIVITY AND
THE AFTE EXECUTED AN "AGREEMENT FOR VOLUNTARY ALLOTMENT OF EMPLOYEE
ORGANIZATION DUES," WHICH DOCUMENT RELATES EXCLUSIVELY TO THE SUBJECT OF
DUES ALLOTMENT. THE PARTIES AGREE THAT THERE HAS NEVER BEEN A
COLLECTIVE BARGAINING AGREEMENT BETWEEN THEM; INDEED, OTHER THAN THE
ALLOTMENT AGREEMENT, THE RECORD CONTAINS NO REFERENCE TO THE SUBSTANCE
OF ANY HISTORY OF BARGAINING BETWEEN THE ACTIVITY AND ANY LABOR
ORGANIZATION.
BASED UPON THE FOREGOING, I FIND THAT THE EMPLOYEES IN THE UNIT
PETITIONED FOR SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST IN
THAT THEY HAVE COMMON SUPERVISION, WORKING CONDITIONS, GRIEVANCE
PROCEDURES, FRINGE BENEFITS, DISCIPLINARY POLICIES AND PROMOTION
POLICIES. STRONG CONSIDERATIONS, BASED NOT ONLY ON THE FACTORS
DISCUSSED WITH RESPECT TO THE UNIT PETITIONED FOR BUT ALSO ON THE
FOLLOWING FACTORS WITH RESPECT TO THE MORE COMPREHENSIVE UNIT CONTENDED
FOR BY THE ACTIVITY MILITATE AGAINST A FINDING THAT THE PETITIONED FOR
UNIT IS INAPPROPRIATE BECAUSE IT DOES NOT INCLUDE EMPLOYEES AT MCCOY AND
AVON PARK. THUS, ALTHOUGH THE EMPLOYEES AT THE MILITARY INSTALLATIONS
MAY ENJOY SIMILAR FRINGE BENEFITS, COMMON TOP ECHELON SUPERVISION AND
COMPARABLE WORKING CONDITIONS, SUCH FACT IS NOT PECULIAR TO THIS
PARTICULAR REGIONAL GROUPING OF INSTALLATIONS. INDEED, THE ACTIVITY
CONCEDES THAT SUCH A STATEMENT IS GENERALLY APPLICABLE TO ITS EMPLOYEES
THROUGHOUT THE ENTIRE WORLD. AS FOR THE ALLEGED CLOSE CENTRAL CONTROL OF
LABOR RELATIONS, THE RECORD DISCLOSES, AND I FIND, THAT MUCH OF THE
CONTROL IS OF A PURELY PERFUNCTORY NATURE AND THAT DAILY DECISIONS OF
LOCAL BRANCH MANAGERS ROUTINELY ARE ALLOWED TO STAND. PARTICULARLY
SIGNIFICANT IS THE GEOGRAPHICAL SEPARATION OF THE THREE INSTALLATIONS,
IN THAT MACDILL IS LOCATED 90 MILES FROM MCCOY AND 105 MILES FROM AVON
PARK AND THE FACT THAT THERE IS A COMPLETE LACK OF EMPLOYEE INTERCHANGE
BETWEEN THE THREE INSTALLATIONS. MOREOVER, NOTWITHSTANDING THE FACT
THAT THE REQUESTED BARGAINING UNIT DOES NOT COMPORT TO THE ACTIVITY'S
ADMINISTRATIVE ORGANIZATION, I FIND THAT THE ESTABLISHMENT OF A UNIT AS
PETITIONED HEREIN WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. /7/
UPON CONSIDERATION OF THE ABOVE AND NOTING THAT NO LABOR ORGANIZATION
SEEKS TO REPRESENT EMPLOYEES ON A MORE COMPREHENSIVE BASIS THAN THAT
DESCRIBED IN THE PETITION, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME CIVILIAN EMPLOYEES
EMPLOYED BY THE MACDILL AIR FORCE BASE CONSOLIDATED EXCHANGE AT MACDILL
AIR FORCE BASE, FLORIDA, EXCLUDING MILITARY PERSONNEL, /8/ MANAGEMENT
OFFICIALS, /9/ EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, AND SUPERVISORS /10/
AND GUARDS AS DEFINED IN THE ORDER. /11/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2624.
DATED, WASHINGTON, D.C.
APRIL 21, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ SUBSEQUENT TO THE CLOSE OF HEARING AND THE DUE DATE FOR BRIEFS,
THE ACTIVITY, PURSUANT TO SECTION 202.10(A) OF THE REGULATIONS OF THE
ASSISTANT SECRETARY, FILED A MOTION TO REOPEN THE RECORD FOR THE
IMITATED PURPOSE OF THE OFFER AND RECEIPT INTO EVIDENCE OF A NEWLY
PUBLISHED REGULATION ENTITLED,"MANAGEMENT AND OPERATION OF CONUS
EXCHANGES UNDER THE INTEGRATED MANAGEMENT CONCEPT OF EXCHANGE
OPERATION," WHICH PRESCRIBED CERTAIN NEW INTERNAL OPERATING PROCEDURES.
ALTHOUGH THE ACTIVITY'S MOTION WAS ACCOMPANIED BY THE REQUIRED
CERTIFICATION OF SERVICE UPON THE PETITIONER, THE PETITIONER FILED NO
RESPONSE. BECAUSE OF THE PECULIAR NATURE OF THE DOCUMENT, ITS RELEVANCE
AND MATERIALITY TO THIS CASE, AND, PARTICULARLY, IN VIEW OF A LACK OF
OPPOSITION TO THE MOTION, THE ACTIVITY'S MOTION IS GRANTED AND I HEREBY
REOPEN THE RECORD FOR THE LIMITED PURPOSE OF RECEIVING THE SUBJECT
DOCUMENT INTO EVIDENCE. AS THE DOCUMENT IS SUCH THAT IT ACTUALLY
REQUIRES NO CLARIFICATION IN ORDER TO AFFORD A CLEAR UNDERSTANDING OF
ITS APPLICATION, AND, AGAIN, IN VIEW OF THE SIGNIFICANT LACK OF
OPPOSITION TO ITS RECEIPT INTO EVIDENCE, I SHALL NOT ALLOW TIME FOR THE
PARTIES' FILING OF SUPPLEMENTAL BRIEFS.
/4/ THE BRIEF FILED BY THE PETITIONER WAS NOT FILED SIMULTANEOUSLY
UPON THE ACTIVITY AS REQUIRED BY SECTION 202.14 OF THE REGULATIONS OF
THE ASSISTANT SECRETARY. SUBSEQUENT TO THE BRIEF'S DUE DATE, THE
ACTIVITY FILED A MOTION WITH THE ASSISTANT SECRETARY REQUESTING THAT THE
PETITIONER'S BRIEF BE "STRICKEN." IN VIEW OF THE NONCOMPLIANCE WITH THE
REGULATIONS, THE ACTIVITY'S MOTION IS GRANTED AND I SHALL NOT CONSIDER
THE PETITIONER'S BRIEF.
/5/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/6/ THE RECORD DISCLOSES NO PRIOR EXERCISE BY THE MILITARY COMMANDER
OF ANY AUTHORITY IN THE GRIEVANCE AREA. IN THIS REGARD, HOWEVER, IT IS
SIGNIFICANT THAT ACTIVITY'S EXHIBIT NO. 1, ITS REGULATION RELATING TO
PERSONNEL POLICIES, EXPRESSLY PROVIDES THAT ALTERNATIVE GRIEVANCE
PROCEDURES MAY BE NEGOTIATED WITH LABOR ORGANIZATIONS HOLDING EXCLUSIVE
RECOGNITION.
/7/ THE PAST GRANT OF FORMAL RECOGNITION TO MACDILL EMPLOYEES
INDICATES THAT THE ACTIVITY MAY DEAL EFFECTIVELY WITH MACDILL EMPLOYEES
ALONE. IT IS NOTED THAT SUCH GRANT WAS ACCORDED FOLLOWING THE EXECUTION
OF THE ADMINISTRATIVE "CONSOLIDATION AGREEMENT," AND THERE IS NO
INDICATION THAT SUCH BARGAINING RELATIONSHIP IN ANY WAY PRECLUDED
EFFECTIVE DEALINGS BETWEEN THE PARTIES OR HAMPERED THE EFFICIENCY OF
AGENCY OPERATIONS.
/8/ ALTHOUGH THE PARTIES ARE IN AGREEMENT THAT "MILITARY PERSONNEL"
SHOULD BE EXCLUDED, THE RECORD IS NOT CLEAR AS TO DETAILS RELATING TO
SUCH PERSONNEL. OBVIOUSLY, IF THEY ARE MERELY WORKING AT THE ACTIVITY'S
FACILITIES DURING THEIR NORMAL MILITARY DUTY HOURS AND ARE BEING PAID BY
THE MILITARY AND NOT BY THE ACTIVITY, THEY WOULD NOT BE "EMPLOYEES"
WITHIN THE MEANING OF THE EXECUTIVE ORDER, AND I SO FIND. HOWEVER, IF
THEY ARE BEING PAID BY THE ACTIVITY FOR WORK BEING PERFORMED IN THEIR
MILITARY NON-DUTY HOURS, FOR THE REASONS ENUNCIATED IN DEPARTMENT OF THE
NAVY, NAVY EXCHANGE, MAYPORT, FLORIDA, A/SLMR NO. 24 AND ARMY AND AIR
FORCE EXCHANGE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE
RANGE, NEW MEXICO, A/SLMR NO. 25, I FIND THAT, ONCE HIRED, OFF-DUTY
MILITARY PERSONNEL STAND IN SUBSTANTIALLY THE SAME EMPLOYMENT
RELATIONSHIP WITH THE ACTIVITY AS DO OTHER ACTIVITY EMPLOYEES AND THAT
THEIR EXCLUSION FROM THE UNIT BASED SOLELY ON THEIR MILITARY STATUS IS
UNWARRANTED.
/9/ AS THE PETITION CONTINUED USE OF THE EXECUTIVE ORDER 10988 RUBRIC
"MANAGERIAL EXECUTIVE," I HAVE CHANGED THE EXCLUSION TO "MANAGEMENT
OFFICIALS," A CLASSIFICATION MANDATORILY EXCLUDED BY EXECUTIVE ORDER
11491.
/10/ THE PARTIES STIPULATED THAT THE EMPLOYMENT CLASSIFICATIONS OF
MANAGER, ASSISTANT MANAGER, DEPARTMENT MANAGER, STOCKROOM MANAGER AND
SHIFT SUPERVISOR ARE SUPERVISORY IN NATURE. BECAUSE THE RECORD IS
INSUFFICIENT TO ESTABLISH WHETHER EMPLOYEES IN THE CLASSIFICATION OF
"SUPERVISORY SALES CLERK" ARE SUPERVISORS, I SHALL MAKE NO FINDINGS AS
TO WHETHER EMPLOYEES IN THIS JOB CLASSIFICATION SHOULD BE EXCLUDED FROM
THE UNIT.
/11/ ALTHOUGH THE AMENDED PETITION CONTAINED REFERENCE TO SEVERAL
OTHER CLASSIFICATIONS, THE RECORD IS NOT CLEAR AS TO WHETHER THERE ARE
ANY "MANAGERIAL TRAINEE EMPLOYEES" WHO, BECAUSE OF THEIR ALLEGED STATUS
AS MANAGEMENT OFFICIALS, SHOULD BE EXCLUDED FROM THE UNIT; OR WHETHER
THERE ARE ANY "ON-CALL EMPLOYEES," OR "TEMPORARY FULL-TIME EMPLOYEES,"
OR TEMPORARY PART-TIME EMPLOYEES, OR "CASUAL EMPLOYEES," WHO, BECAUSE OF
THE PECULIAR NATURE OF THEIR EMPLOYMENT, SHARE NO SUBSTANTIAL COMMUNITY
OF INTEREST WITH THE UNIT EMPLOYEES AND SHOULD, THEREFORE, BE EXCLUDED
FROM THE UNIT. ACCORDINGLY, I MAKE NO FINDINGS WITH RESPECT TO SUCH
POSSIBLE CLASSIFICATIONS.
1 A/SLMR 28; P. 155; CASE NO. 71-1401(RO); APRIL 21, 1971.
NONAPPROPRIATED FUND (NAF), FISCAL CONTROL OFFICE, ACX-N
ELMENDORF AIR FORCE BASE, ALASKA
A/SLMR NO. 28
THE ISSUES IN THIS CASE AROSE OUT OF ATTEMPT BY THE PETITIONER,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1668, AFL-CIO (AFGE),
TO EXPRESSLY EXCLUDED OFF-DUTY MILITARY EMPLOYEES, AS A CLASS, FROM THE
PETITIONED FOR UNIT. AT THE HEARING, THE PARTIES JOINED IN AN ATTEMPT
TO STIPULATE THAT THE AFGE'S AMENDED UNIT WAS APPROPRIATE AND THAT THEY
WERE PREPARED TO PROCEED TO AN ELECTION IN THIS UNIT. ACCORDINGLY, THEY
MOVED TO ADJOURN THE HEARING AND PROCEED TO AN ELECTION. THE HEARING
OFFICER RULED THAT THE GENERAL EXCLUSION OF OFF-DUTY MILITARY EMPLOYEES
FROM THE AMENDED UNIT PRESENTED SUBSTANTIAL POLICY QUESTIONS.
CONSEQUENTLY, HE DENIED THE PARTIES' MOTION TO ADJOURN THE HEARING ON
THE GROUND THAT THE HEARING WAS NECESSARY TO DEVELOP A FULL AND COMPLETE
RECORD ON WHICH THE ASSISTANT SECRETARY COULD MAKE A DECISION.
WITH RESPECT TO THE PARTIES'S OBJECTIONS TO THE HEARING OFFICER'S
RULINGS CONCERNING THEIR MOTION TO ADJOURN THE HEARING AND PROCEED TO AN
ELECTION IN A UNIT WHICH THEY AGREE WAS APPROPRIATE, THE ASSISTANT
SECRETARY REAFFIRMED HIS DECISION IN ARMY AND AIR FORCE EXCHANGE
SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE,
NEW MEXICO, A/SLMR NO.25, IN WHICH HE STATED THAT NEITHER THE EXECUTIVE
ORDER NOR ITS IMPLEMENTING REGULATIONS REQUIRED THAT AN ELECTION MUST BE
HELD WHERE THERE WAS NO DISPUTE BETWEEN THE PARTIES AS TO THE
APPROPRIATENESS OF THE PETITIONED FOR UNIT. IN THESE CIRCUMSTANCES,
SINCE, IN THE ASSISTANT SECRETARY'S VIEW, THE EXPRESS EXCLUSION OF
OFF-DUTY MILITARY PERSONNEL RAISED SUBSTANTIAL POLICY QUESTIONS, HE
AFFIRMED THE HEARING OFFICER'S RULING DENYING THE PARTIES MOTION TO
ADJOURN THE HEARING AND TO PROCEED TO AN ELECTION IN THE AGREED UPON
UNIT.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE CLAIMED UNIT WAS
APPROPRIATE SINCE THE EMPLOYEES COVERED BY THE PETITION WORKED UNDER THE
DIRECTION OF THE SAME SUPERVISOR, HAD THE SAME SALARY SCHEDULE, WORKED
THE SAME HOURS AND PERFORMED THEIR TASKS IN THE SAME OFFICE LOCATION.
MOREOVER, HE NOTED THAT THESE EMPLOYEES RECEIVED THE SAME BENEFITS AND
HAD THE SAME WORKING CONDITIONS. IN THESE CIRCUMSTANCES, AND NOTING THE
ACTIVITY'S POSITION THAT THE PETITIONED FOR UNIT WOULD PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF ITS OPERATIONS, THE ASSISTANT SECRETARY
DIRECTED THAT AN ELECTION BE HELD IN THE UNIT SOUGHT BY THE AFGE.
WITH RESPECT TO OFF-DUTY MILITARY PERSONNEL, THE ASSISTANT SECRETARY
CONCLUDED, IN ACCORDANCE WITH HIS DECISIONS IN DEPARTMENT OF THE NAVY,
NAVY EXCHANGE, MAYPORT, FLORIDA, A/SLMR NO. 24 AND ARMY AND AIR FORCE
EXCHANGE SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS
MISSILE RANGE, NEW MEXICO, CITED ABOVE, THAT THEIR EXCLUSION FROM THE
UNIT BASED SOLELY ON THEIR MILITARY STATUS WAS UNWARRANTED. HE NOTED,
HOWEVER, THAT INASMUCH AS THE RECORD ESTABLISHED THAT THERE WERE NO
OFF-DUTY MILITARY PERSONNEL PRESENTLY EMPLOYED BY THE ACTIVITY, HE WOULD
MAKE NO FINDINGS OF FACT WITH RESPECT TO WHETHER THEY WOULD COME WITHIN
THE INCLUDED CATEGORY OF EMPLOYEES BASED ON THEIR RESPECTIVE JOB STATUS
AT THE ACTIVITY.
NONAPPROPRIATED FUND (NAF)
FISCAL CONTROL OFFICE, ACX-N,
ELMENDORF AIR FORCE BASE, ALASKA /1/
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1668 /2/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM J. JONES. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
PETITIONER, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1668, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL
NONAPPROPRIATED FUND EMPLOYEES OF THE FISCAL CONTROL OFFICE, ELMENDORF
AIR FORCE BASE, ALASKA, EXCLUDING AMONG OTHERS, ALL OFF-DUTY MILITARY
EMPLOYEES. THE ACTIVITY AGREES THAT THE UNIT SOUGHT BY THE AFGE IS
APPROPRIATE.
AT THE HEARING IN THIS CASE, THE AFGE MOVED TO AMEND ITS PETITION TO
CLARIFY THE SCOPE OF THE UNIT SOUGHT BY LISTING THE INCLUSIONS AND
EXCLUSIONS. THE HEARING OFFICER REFERRED THIS MOTION TO THE ASSISTANT
SECRETARY FOR DECISION. THE AFGE'S MOTION TO AMEND ITS PETITION IS
HEREBY GRANTED.
ALSO, DURING THE HEARING, THE PARTIES MOVED TO STIPULATE THAT THE
UNIT SOUGHT WAS APPROPRIATE AND THEY ASSERTED THAT THEY WERE PREPARED TO
ENTER INTO A CONSENT AGREEMENT FOR AN ELECTION IN THAT UNIT. IN THIS
RESPECT, THEY MOVED TO ADJOURN THE HEARING SO THAT THEY COULD PROCEED TO
A CONSENT ELECTION OR, IN THE ALTERNATIVE, UNTIL THE ASSISTANT SECRETARY
RULED ON THE MOTION TO AMEND THE AFGE'S PETITION. THE HEARING OFFICER
DENIED THE PARTIES' MOTION TO STIPULATE THAT THE UNIT SOUGHT WAS
APPROPRIATE AND ALSO DENIED THEIR MOTION TO ADJOURN THE HEARING.
FOR THE REASONS ENUNCIATED IN ARMY AND AIR FORCE EXCHANGE SERVICE,
WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW
MEXICO, A/SLMR NO. 25, NEITHER THE EXECUTIVE ORDER NOR ITS IMPLEMENTING
REGULATIONS REQUIRE THAT AN ELECTION MUST BE HELD WHERE THERE IS NO
DISPUTE BETWEEN THE PARTIES AS TO THE APPROPRIATENESS OF THE PETITIONED
FOR UNIT. IN THE CIRCUMSTANCES OF THIS CASE, SINCE, IN MY VIEW, THE
EXPRESS EXCLUSION OF OFF-DUTY MILITARY EMPLOYEES FROM THE CLAIMED UNIT
RAISED SUBSTANTIAL QUESTIONS OF POLICY, THE ISSUANCE OF A NOTICE OF
HEARING AND THE DEVELOPMENT OF THE FACTS CONCERNING THIS ISSUE AT THE
REPRESENTATION HEARING WERE CLEARLY CONSISTENT WITH THE PURPOSES AND
POLICIES OF THE EXECUTIVE ORDER. ACCORDINGLY, THE HEARING OFFICER'S
DENIAL OF THE PARTIES' MOTIONS TO STIPULATE AS TO THE APPROPRIATENESS OF
THE UNIT AND TO ADJOURN THE HEARING WAS PROPER AND HIS RULINGS IN THIS
REGARD ARE HEREBY AFFIRMED.
THE RECORD REVEALS THAT THE AFGE IS SEEKING A UNIT COMPOSED OF 14
NONSUPERVISORY, NONAPPROPRIATED FUND EMPLOYEES OF THE ACTIVITY WHO
PERFORM ACCOUNTING AND BOOKKEEPING AND RELATED CLERICAL WORK. /3/
ALTHOUGH THERE ARE CIVIL SERVICE EMPLOYEES AT THE ACTIVITY, IT IS CLEAR
THAT THE AFGE DOES NOT INTEND TO INCLUDE SUCH EMPLOYEES IN THE
PETITIONED FOR UNIT. /4/ IT IS CLEAR ALSO THAT THE AFGE INTENDS TO
EXCLUDE, AMONG OTHERS, OFF-DUTY MILITARY EMPLOYEES OF THE ACTIVITY AND
EMPLOYEES HIRED ON A CASUAL, INTERMITTENT OR ON-CALL BASIS,
NOTWITHSTANDING THE FACT THAT THE EVIDENCE DEMONSTRATES T AT NO SUCH
PERSONNEL ARE EMPLOYED CURRENTLY AT THE ACTIVITY.
THE FISCAL CONTROL OFFICER IS A FUNCTIONALLY DISTINCT AND SEPARATE
COMPONENT OF THE OFFICE OF THE CHIEF OF PLANS AND PROGRAMS, BASE
COMPTROLLER, ELMENDORF AIR FORCE BASE, ALASKA. IT PROVIDES ACCOUNTING
AND BOOKKEEPING SERVICES TO THE VARIOUS AIR FORCE WELFARE BOARD
NONAPPROPRIATED FUND ACTIVITIES AT THE BASE. /5/ THE ACTIVITY EMPLOYS A
STAFF OF ACCOUNTANTS, ACCOUNTING TECHNICIANS AND CLERICAL PERSONNEL AND
IS RESPONSIBLE FOR HIRING ITS OWN PERSONNEL AND FOR ITS OWN PERSONNEL
ADMINISTRATION. /6/ SUPERVISION OF EMPLOYEES OF THE ACTIVITY EMANATES
FROM A CIVILIAN SUPERVISORY OPERATING ACCOUNTANT OF THE ACTIVITY, WHO IS
A CIVIL SERVICE EMPLOYEE AND WHO HAS BEEN DESIGNATED AS FISCAL CONTROL
OFFICER. HE INTERVIEWS ALL APPLICANTS FOR JOBS AT THE ACTIVITY, MAKES
THE FINAL DECISION ON HIRING AND DIRECTS THE WORK OF SUBORDINATE
EMPLOYEES. IN TURN, HE REPORTS DIRECTLY TO THE ASSISTANT COMPTROLLER
FOR PLANS AND PROGRAMS AT ELMENDORF. THE RECORD SHOWS THAT THERE ARE
TWO OTHER CIVIL SERVICE EMPLOYEES LOCATED AT THE ACTIVITY, A SUPERVISORY
ACCOUNTANT AND A CLERK-TYPIST. ALSO, THERE IS A MILITARY
NONCOMMISSIONED OFFICER ASSIGNED TO THE ACTIVITY AS CHIEF, ON-BASE
ACTIVITIES. ALL OTHER EMPLOYEES OF THE ACTIVITY ARE CLASSIFIED AS
NONAPPROPRIATED FUND EMPLOYEES, AND ARE EMPLOYED UNDER EMPLOYMENT
REGULATIONS, SALARY SCHEDULES AND BENEFITS ESTABLISHED BY THE ACTIVITY.
/7/
IN THE PAST, THE ACTIVITY HAS HIRED MILITARY PERSONNEL ASSIGNED TO
ELMENDORF TO WORK DURING THEIR OFF-DUTY HOURS. HOWEVER, AS NOTED ABOVE,
THE RECORD SHOWS THAT NO SUCH PERSONNEL ARE EMPLOYED CURRENTLY BY THE
ACTIVITY. /8/ THE RECORD SHOWS ALSO THAT THE ACTIVITY DOES NOT EMPLOY,
CURRENTLY, INTERMITTENT, CASUAL OR ON-CALL EMPLOYEES. THUS, AT THE
PRESENT TIME, ONLY PERMANENT FULL-TIME CIVILIAN PERSONNEL ARE EMPLOYED
IN THE FISCAL CONTROL OFFICE. /2/
THE EVIDENCE SHOWS THAT THE EMPLOYEES OF THE ACTIVITY PERFORM RELATED
TASKS WHICH CONSTITUTE A HIGHLY INTEGRATED FUNCTION. ACCOUNTING
TECHNICIANS MAKE POSTINGS TO THE JOURNALS AND LEDGERS OF THE VARIOUS
ACCOUNTS AND FUNDS, AND PREPARE FINANCIAL REPORTS AND STATEMENTS FOR
FUND CUSTODIANS AND OFFICIALS; AND, THE CLERKS AND TYPISTS ACCUMULATE
AND SORT FINANCIAL DATA, TYPE FINANCIAL REPORTS AND PERFORM RELATED
CLERICAL DUTIES. THE EVIDENCE SHOWS THAT THERE IS A CONTINUOUS FLOW OF
WORK BETWEEN THE VARIOUS EMPLOYEES IN THE UNIT SOUGHT AND THAT THE
ACTIVITY'S ACCOUNTANTS SUPERVISE THE ENTIRE OPERATION.
IN THE CIRCUMSTANCES, I FIND THAT THE NONSUPERVISORY, NONAPPROPRIATED
FUND EMPLOYEES OF THE ACTIVITY CONSTITUTE AN APPROPRIATE UNIT. THUS,
ALL EMPLOYEES IN THE CLAIMED UNIT WORK UNDER DIRECTION OF THE SAME
SUPERVISOR, HAVE THE SAME SALARY SCHEDULE, WORK THE SAME HOURS AND
PERFORM THEIR TASKS IN THE SAME OFFICE LOCATION. MOREOVER, THEY RECEIVE
THE SAME EMPLOYEE BENEFITS, AND THE WORKING CONDITIONS AT THE ACTIVITY
ARE THE SAME FOR ALL NONAPPROPRIATED FUND EMPLOYEES.
WITH RESPECT TO OFF-DUTY MILITARY EMPLOYEES, FOR THE REASONS
ENUNCIATED IN DEPARTMENT OF THE NAVY, NAVY EXCHANGE, MAYPORT, FLORIDA,
A/SLMR NO. 24 AND ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS
MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW MEXICO, CITED
ABOVE, I FIND THAT, ONCE HIRED, OFF-DUTY MILITARY PERSONNEL STAND IN
SUBSTANTIALLY THE SAME EMPLOYMENT RELATIONSHIP WITH THE ACTIVITY AS DO
OTHER ACTIVITY EMPLOYEES AND THAT THEIR EXCLUSION FROM THE UNIT BASED
SOLELY ON THEIR MILITARY STATUS IS UNWARRANTED.
BASED ON THE FOREGOING AND NOTING THE ACTIVITY'S POSITION THAT THE
PETITIONED FOR UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
ITS OPERATIONS, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF EXECUTIVE ORDER 11491:
ALL NONAPPROPRIATED FUND EMPLOYEES OF THE NONAPPROPRIATED FUND (NAF)
FISCAL CONTROL OFFICERS, ACX-N, ELMENDORF AIR FORCE BASE, ALASKA,
EXCLUDING ALL GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE ORDER. /10/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1668.
DATED, WASHINGTON, D.C.
APRIL 21, 1971
/1/ THE ACTIVITY'S NAME APPEARS AS AMENDED AT THE HEARING.
/2/ THE PETITIONER'S NAME APPEARS AS AMENDED AT THE HEARING. 4 /3/
THESE EMPLOYEES INCLUDE 11 ACCOUNTING TECHNICIANS, 1 DOCUMENT CONTROL
CLERK AND 2 STATISTICAL TYPISTS.
/4/ PRESUMABLY, CIVIL SERVICE EMPLOYEES AT THE ACTIVITY WOULD BE
COVERED BY THE EXCLUSIVE BARGAINING RIGHTS WHICH HAVE BEEN ACCORDED TO
THE AFGE IN A UNIT COMPOSED OF ALL GENERAL SCHEDULE AND WAGE BOARD
EMPLOYEES AT ELMENDORF AIR FORCE BASE.
/5/ THE EVIDENCE SHOWS THAT SIMILAR FUNCTIONS ARE BEING PERFORMED IN
THE BASE EXCHANGE AND THEATERS AT ELMENDORF, WHICH ARE OPERATED UNDER
THE POLICIES AND REGULATIONS OF THE ARMY AND AIR FORCE EXCHANGE AND
MOTION PICTURE SERVICE. THE RECORD ESTABLISHED THAT THESE ACTIVITIES
ARE SEPARATE AND DISTINCT FROM AIR FORCE WELFARE BOARD ACTIVITIES.
/6/ A BASE CIVILIAN PERSONNEL OFFICE RENDERS ONLY ADVISORY SERVICE TO
THE FISCAL CONTROL OFFICE.
/7/ THE SALARY SCHEDULES, EMPLOYEES' BENEFITS AND OTHER CONDITIONS OF
EMPLOYMENT OF NONAPPROPRIATED FUND EMPLOYEES ARE ESTABLISHED BY A
COUNCIL OR BOARD. THE RECORD SHOWS THAT SUCH CONDITIONS AND BENEFITS
ARE SET TO APPROXIMATE THOSE THAT EXIST FOR CIVIL SERVICE EMPLOYEES.
/8/ THE EVIDENCE SHOWS THAT OFF-DUTY MILITARY PERSONNEL WERE HIRED BY
THE ACTIVITY IN APPROXIMATELY APRIL 1964. AT THAT TIME, THE ACTIVITY
WAS ENGAGED IN A "CLEAN-UP" OPERATION FOLLOWING AN EARTHQUAKE. THE
RECORD SHOWS THAT THE OFF-DUTY MILITARY EMPLOYEES WERE HIRED TO PERFORM
SPECIFIC TASKS DURING THE EMERGENCY PERIOD AND THAT THESE EMPLOYEES
WORKED AT THE ACTIVITY FOR LESS THAN ONE YEAR. THERE IS NO EVIDENCE
THAT ANY OTHER OFF-DUTY MILITARY EMPLOYEES HAVE BEEN HIRED BY THE
ACTIVITY.
/9/ THE RECORD SHOWS THAT THE CIVIL SERVICE CLERK-TYPIST HAS BEEN
ASSIGNED TO THE ACTIVITY, BY THE BASE COMPTROLLER, FOR A TEMPORARY
PERIOD OF TIME, AND IS NOT CONSIDERED TO BE AN EMPLOYEE OF THE ACTIVITY.
FURTHER, THE EVIDENCE ESTABLISHED THAT THE MILITARY NONCOMMISSIONED
OFFICER LOCATED AT THE ACTIVITY IS ASSIGNED AS A MILITARY DUTY
ASSIGNMENT.
/10/ INASMUCH AS THE RECORD ESTABLISHES THAT THERE ARE NO OFF-DUTY
MILITARY PERSONNEL PRESENTLY EMPLOYED BY THE ACTIVITY, I SHALL NOT AT
THIS TIME MAKE ANY FINDINGS OF FACT WITH RESPECT TO WHETHER THEY WOULD
COME WITHIN THE INCLUDED CATEGORY OF EMPLOYEES BASED ON THEIR RESPECTIVE
JOB STATUS AT THE ACTIVITY. FURTHER, THE AFGE SOUGHT TO EXCLUDE FROM
ITS CLAIMED UNIT EMPLOYEES CLASSIFIED AS INTERMITTENT, CASUAL AND
ON-CALL. SINCE THE RECORD ESTABLISHES THAT THERE ARE NO EMPLOYEES
PRESENTLY EMPLOYED IN THESE CATEGORIES AT THIS TIME AND THERE IS NO
INDICATION AS TO THE TERMS AND CONDITIONS OF EMPLOYMENT OF SUCH
EMPLOYER, I SHALL MAKE NO FINDINGS IN THIS REGARD AT THIS TIME.
1 A/SLMR 27; P. 152; CASE NO. 62-1751(E); APRIL 21, 1971.
UNITED STATES ARMY TRAINING CENTER
AND FORT LEONARD WOOD AT FORT LEONARD WOOD,
MISSOURI, NON-APPROPRIATED FUND BRANCH
DIRECTORATE OF PERSONNEL AND COMMUNITY
ACTIVITIES, BUILDING 344
FORT LEONARD WOOD, MISSOURI
A/SLMR NO.27
THIS CASE AROSE AS A RESULT OF A PETITION FILED BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32 (NAGE), SEEKING A UNIT
OF ALL THE ACTIVITY'S "INDEFINITE" AND "INDEFINITE PART-TIME" EMPLOYEES
AND EXCLUDING, AMONG OTHERS, OFF-DUTY MILITARY PERSONNEL AND "TEMPORARY"
AND "TEMPORARY PART-TIME" EMPLOYEES.
WITH RESPECT TO THE EXCLUSION OF OFF-DUTY MILITARY PERSONNEL, FOR THE
REASONS ENUNCIATED IN DEPARTMENT OF THE NAVY, NAVY EXCHANGE, MAYPORT,
FLORIDA, A/SLMR NO. 24, AND ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE
SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW MEXICO,
A/SLMR NO. 25, THE ASSISTANT SECRETARY CONCLUDED THAT, ONCE HIRED,
OFF-DUTY MILITARY PERSONNEL STOOD IN SUBSTANTIALLY THE SAME EMPLOYMENT
RELATIONSHIP WITH THE ACTIVITY AS DID OTHER ACTIVITY EMPLOYEES AND THAT
THEIR EXCLUSION FROM THE UNIT BASED SOLELY ON THEIR MILITARY STATUS WAS
UNWARRANTED.
WITH RESPECT THE NAGE'S EXCLUSION OF EMPLOYEES CLASSIFIED AS
"TEMPORARY" AND "TEMPORARY PART-TIME," THE ASSISTANT SECRETARY NOTED
THAT UNDER THE ACTIVITY'S DEFINITION, A "TEMPORARY" EMPLOYEE WAS ONE
HIRED ON A 40-HOUR-A-WEEK BASIS FOR A PERIOD NOT TO EXCEED ONE YEAR AND
A "TEMPORARY PART-TIME" EMPLOYEE WAS ONE HIRED ON A
LESS-THAN-40-HOUR-A-WEEK BASIS FOR A PERIOD NOT TO EXCEED ONE YEAR. IN
THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY STATED THAT, DESPITE THEIR
"TEMPORARY" CLASSIFICATION, IF EMPLOYEES ARE EMPLOYED TO WORK ON A
REGULAR BASIS, FOR A SUBSTANTIAL PERIOD OF TIME WITHIN ONE YEAR, SO AS
TO DEMONSTRATE THAT THEY HAVE A SUBSTANTIAL AND CONTINUING INTEREST IN
THE TERMS AND CONDITIONS OF EMPLOYMENT ALONG WITH THE OTHER EMPLOYEES IN
THE UNIT, SUCH EMPLOYEES SHOULD BE INCLUDED IN THE UNIT.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE UNIT
SOUGHT WAS APPROPRIATE AND, ACCORDINGLY, HE DIRECTED THAT AN ELECTION BE
HELD IF, IN THE APPROPRIATE AREA ADMINISTRATOR'S VIEW, THE NAGE'S
SHOWING OF INTEREST WAS ADEQUATE WITH THE ADDITION OF CERTAIN OFF-DUTY
MILITARY PERSONNEL AND CERTAIN EMPLOYEES CLASSIFIED AS "TEMPORARY" AND
"TEMPORARY PART-TIME."
UNITED STATES ARMY TRAINING CENTER AND
FORT LEONARD WOOD AT FORT LEONARD WOOD,
MISSOURI, NON-APPROPRIATED FUND BRANCH,
DIRECTORATE OF PERSONNEL AND COMMUNITY
ACTIVITIES, BUILDING 344, /1/
FORT LEONARD WOOD, MISSOURI
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-32
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER HERBERT P. KREHBIEL. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R14-32, HEREIN CALLED NAGE, SEEKS AN ELECTION IN A UNIT OF ALL OF
THE ACTIVITY'S EMPLOYEES "PERFORMING CATEGORY A OR CATEGORY B CIVILIAN
OCCUPATIONS UNDER INDEFINITE OR INDEFINITE PART-TIME APPOINTMENT(S),"
/2/ EXCLUDING, AMONG OTHERS, OFF-DUTY MILITARY PERSONNEL /3/ AND POST
EXCHANGE AND POST EXCHANGE KANSAS SUPPORT AREA EMPLOYEES. /4/
THE MAJORITY OF OFF-DUTY MILITARY PERSONNEL EMPLOYED BY THE ACTIVITY
GENERALLY PERFORM DUTIES INCLUDED IN CATEGORY B. FOR THE MOST PART,
THESE EMPLOYEES WORK IN THREE FACILITIES OF THE ACTIVITY -- THE CENTRAL
POST FUND, THE OFFICERS' OPEN MESS AND THE NON-COMMISSIONED OFFICERS'
OPEN MESS. THEY RECEIVE THE SAME RATE OF PAY AS CIVILIAN EMPLOYEES
WORKING IN COMPARABLE POSITIONS AND IT APPEARS THAT THEY MAY, AS THE
NEED ARISE, BE USED IN THOSE POSITIONS FILLED BY EMPLOYEES THROUGHOUT
THE ACTIVITY CLASSIFIED AS "INDEFINITE" OR "INDEFINITE PART-TIME."
FOR THE REASONS ENUNCIATED IN DEPARTMENT OF THE NAVY, NAVY EXCHANGE,
MAYPORT, FLORIDA, A/SLMR NO.24 AND ARMY AND AIR FORCE EXCHANGE SERVICE,
WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW
MEXICO, A/SLMR NO. 25, I FIND THAT, ONCE HIRED, OFF-DUTY MILITARY
PERSONNEL STAND IN SUBSTANTIALLY THE SAME EMPLOYMENT RELATIONSHIP WITH
THE ACTIVITY AS DO OTHER ACTIVITY EMPLOYEES AND THAT THEIR EXCLUSION
FROM THE UNIT BASED SOLELY ON THEIR MILITARY STATUS IS UNWARRANTED.
NAGE SOUGHT ALSO TO EXCLUDE "TEMPORARY" AND "TEMPORARY PART-TIME"
EMPLOYEES. UNDER THE ACTIVITY'S DEFINITION, A "TEMPORARY" EMPLOYEE IS
ONE HIRED ON A 40-HOUR A WEEK BASIS FOR A PERIOD NOT TO EXCEED ONE YEAR
AND A "TEMPORARY PART-TIME" EMPLOYEE IS ONE HIRED ON A LESS-THAN-40-HOUR
A WEEK BASIS FOR A PERIOD NOT TO EXCEED ONE YEAR. IN MY VIEW, IF
EMPLOYEES ARE EMPLOYED TO WORK ON A REGULAR BASIS, FOR A SUBSTANTIAL
PERIOD OF TIME WITHIN ONE YEAR, SO AS TO DEMONSTRATE THAT THEY HAVE A
SUBSTANTIAL AND CONTINUING INTEREST IN THE TERMS AND CONDITIONS OF
EMPLOYMENT ALONG WITH THE OTHER EMPLOYEES IN THE UNIT, SUCH EMPLOYEES
SHOULD BE INCLUDED IN THE UNIT. THUS, WHERE AS IN THE SUBJECT CASE, AN
EMPLOYEE, ALTHOUGH DESIGNATED BY THE ACTIVITY AS "TEMPORARY" OR
"TEMPORARY PART-TIME," HAS A REASONABLE EXPECTANCY OF REGULAR AND
CONTINUOUS EMPLOYMENT FOR A SUBSTANTIAL PERIOD OF TIME UP TO ONE YEAR,
HE SHOULD BE INCLUDED IN THE UNIT AND WOULD BE ELIGIBLE TO VOTE. /5/
BASED ON THE FOREGOING, AND NOTING THE ACTIVITY-WIDE SCOPE OF THE
PETITIONED FOR UNIT, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A
UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE
MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491:
ALL INDEFINITE AND INDEFINITE PART-TIME EMPLOYEES, INCLUDING
"TEMPORARY" AND "TEMPORARY PART-TIME" /6/ AND OFF-DUTY MILITARY
PERSONNEL IN ANY OF THE FOREGOING CATEGORIES, EMPLOYED BY THE UNITED
STATES ARMY TRAINING CENTER AND FORT LEONARD WOOD AT FORT LEONARD WOOD,
MISSOURI, NON-APPROPRIATED FUND BRANCH DIRECTORATE OF PERSONNEL AND
COMMUNITY ACTIVITIES, EXCLUDING POST EXCHANGE AND POST EXCHANGE KANSAS
SUPPORT AREA EMPLOYEES, ALL INTERMITTENT EMPLOYEES, /7/ EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32.
DATED, WASHINGTON, D.C.
APRIL 21, 1971
LABOR FOR LABOR-MANAGEMENT RELATIONS.
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE ABOVE SOUGHT CATEGORIES REPRESENT PERMANENT POSITIONS AT THE
ACTIVITY. THE RECORD REVEALS THAT CATEGORY A EMPLOYEES ARE THOSE
ENGAGED IN ADMINISTRATIVE, FISCAL OR CLERICAL WORK AND CATEGORY B
EMPLOYEES ARE THOSE WHO ARE ENGAGED IN A TRADE OR CRAFT FUNCTION.
/3/ ALTHOUGH NOT EXPRESSLY EXCLUDED IN THE PETITION, IT IS CLEAR THAT
THE NAGE INITIALLY SOUGHT TO EXCLUDE OFF-DUTY MILITARY PERSONNEL FROM
ITS PROPOSED UNIT. IT IS CLEAR ALSO THAT THE ACTIVITY AGREED THAT SUCH
PERSONNEL SHOULD BE EXCLUDED.
/4/ THESE EMPLOYEES APPARENTLY WERE EXCLUDED BECAUSE THEY ARE
EMPLOYEES OF THE ARMY AND AIR FORCE EXCHANGE SERVICE AND, AS SUCH, ARE
NOT SUBJECT TO THE SAME PERSONNEL POLICIES AND PROCEDURES AS THE
ACTIVITY'S EMPLOYEES AND APPARENTLY HAVE DIFFERENT TERMS AND CONDITIONS
OF EMPLOYMENT.
/5/ THE RECORD IN THE SUBJECT CASE INDICATES THAT EMPLOYEES
CLASSIFIED AS "TEMPORARY" OR "TEMPORARY PART-TIME" SHARE, ALONG WITH THE
OTHER EMPLOYEES IN THE UNIT, COMMON SUPERVISION, DUTIES, RATES OF PAY,
AND GENERAL WORKING TERMS AND CONDITIONS OF EMPLOYMENT. WITH RESPECT TO
WHAT CONSTITUTES EMPLOYMENT FOR A SUBSTANTIAL PERIOD OF TIME, THE RECORD
HEREIN IS NOT SUFFICIENTLY CLEAR TO PERMIT A FINDING IN THIS CASE AS TO
WHETHER ALL EMPLOYEES CLASSIFIED AS "TEMPORARY" OR "TEMPORARY PART-TIME"
SHOULD BE INCLUDED IN THE UNIT. HOWEVER, IN MY VIEW, "TEMPORARY" AND
"TEMPORARY PART-TIME" EMPLOYEES HIRED ON A REGULAR BASIS FOR A PERIOD OF
ONE YEAR SHOULD BE ELIGIBLE TO VOTE. WHERE ELIGIBILITY QUESTIONS EXIST
AS TO CERTAIN EMPLOYEES IN THESE CATEGORIES THEY MAY, OF COURSE, VOTE IN
THE ELECTION SUBJECT TO THE CHALLENGE PROCEDURE CONTAINED IN SECTION
202.18 AND 202.20 OF THE ASSISTANT SECRETARY'S REGULATIONS.
/6/ THE INCLUSION OF "TEMPORARY" AND "TEMPORARY PART-TIME" EMPLOYEES
IN THIS UNIT IS NOT TO BE CONSTRUED AS ABANDONMENT OF THE GENERAL
PRINCIPLE THAT TEMPORARY EMPLOYEES NORMALLY ARE EXCLUDED FROM BARGAINING
UNITS. RATHER, AS NOTED ABOVE, THE USUAL CONNOTATION OF THE TERM
"TEMPORARY" HAS NOT BEEN UTILIZED WITH REGARD TO THE EMPLOYEES SO
DESIGNATED BY THE ACTIVITY. ACCORDINGLY, THE INCLUSION IN THE UNIT OF
EMPLOYEES IDENTIFIED AS "TEMPORARY" AND "TEMPORARY PART-TIME" IS FOR THE
PURPOSES OF THIS CASE ONLY.
/7/ THE EXCLUSION OF "INTERMITTENT" EMPLOYEES WAS CONSIDERED
WARRANTED BECAUSE UNDER THE ACTIVITY'S DEFINITION SUCH AN EMPLOYEE HAS
NO PREESTABLISHED WORKING HOURS AND HAS NO REASONABLE EXPECTANCE OF
CONTINUED REGULAR EMPLOYMENT.
/8/ THE RECORD IN THE SUBJECT CASE IS UNCLEAR AS TO WHETHER THE
INCLUSION IN THE PETITIONED FOR UNIT OF CERTAIN OFF-DUTY MILITARY
PERSONNEL AND CERTAIN "TEMPORARY" AND "TEMPORARY PART-TIME" EMPLOYEES
RENDERS INADEQUATE THE NAGE'S SHOWING OF INTEREST. ACCORDINGLY, BEFORE
PROCEEDING TO AN ELECTION IN THIS CASE, THE APPROPRIATE AREA
ADMINISTRATOR IS DIRECTED TO REEVALUATE THE SHOWING OF INTEREST. IF HE
DETERMINES THAT, BASED ON THE INCLUSION OF CERTAIN EMPLOYEES IN THE
ABOVE-NAMED CATEGORIES, THE NAGE'S SHOWING OF INTEREST IS INADEQUATE,
THE PETITION IN THIS CASE SHOULD BE DISMISSED.
1 A/SLMR 26; P. 149; CASE NO. 72-1528; APRIL 21, 1971.
SOUTHERN CALIFORNIA EXCHANGE REGION,
ARMY AND AIR FORCE EXCHANGE SERVICE,
NORTON AIR FORCE BASE,
SAN BERNARDINO, CALIFORNIA
A/SLMR NO. 26
THIS CASE, INVOLVING A REPRESENTATION PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1485 (AFGE) SEEKING
AN ELECTION AMONG REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY AND
UNIVERSAL SALARY PLAN EMPLOYEES EMPLOYED BY THE SOUTHERN CALIFORNIA
EXCHANGE REGION OF THE ARMY AND AIR FORCE EXCHANGE SERVICE AT NORTON AIR
FORCE BASE, SAN BERNARDINO, CALIFORNIA, PRESENTED THE FOLLOWING
QUESTIONS:
(1) WHETHER A HEARING MAY BE ORDERED WHEN THERE IS NO DISPUTE BETWEEN
THE PARTIES CONCERNING THE APPROPRIATENESS OF THE UNIT SOUGHT?
(2) WHETHER OFF-DUTY MILITARY PERSONNEL WORKING AS EMPLOYEES OF THE
ACTIVITY MAY BE EXCLUDED, AS A CLASS, FROM THE PROPOSED UNIT AGREED UPON
BY THE PARTIES?
WITH RESPECT TO THE FIRST ISSUE, THE ASSISTANT SECRETARY CONCLUDED,
BASED ON THE REASONING ENUNCIATED IN ARMY AND AIR FORCE EXCHANGE
SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE,
NEW MEXICO, A/SLMR NO. 25, THAT NEITHER THE ORDER NOR THE REGULATIONS
WHICH IMPLEMENTED THE ORDER REQUIRED THAT AN ELECTION BE HELD
AUTOMATICALLY IN EVERY CASE WHERE THE PARTIES AGREE AS TO THE
APPROPRIATENESS OF THE UNIT SOUGHT.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DIRECTED THAT AN
ELECTION BE HELD IN THE PETITIONED FOR UNIT WHICH HE FOUND TO BE
APPROPRIATE AND THAT THE UNIT INCLUDE THOSE OFF-DUTY MILITARY EMPLOYEES
WHO COME WITHIN THE INCLUDED CATEGORIES.
SOUTHERN CALIFORNIA EXCHANGE REGION,
ARMY AND AIR FORCE EXCHANGE SERVICE,
NORTON AIR FORCE BASE,
SAN BERNARDINO, CALIFORNIA /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
LOCAL 1485 /2/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER RONALD WANKE. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
/3/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1485, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN AND
UNIVERSAL SALARY PLAN EMPLOYEES EMPLOYED BY THE SOUTHERN CALIFORNIA
EXCHANGE REGION AT NORTON AIR FORCE BASE, SAN BERNARDINO, CALIFORNIA.
BOTH THE AFGE AND THE ACTIVITY AGREE THAT THE UNIT SOUGHT IS
APPROPRIATE. THEY ALSO AGREE THAT THE FOLLOWING CLASSIFICATIONS OF
EMPLOYEES SHOULD BE EXCLUDED FROM THE CLAIMED UNIT:
TEMPORARY FULL-TIME AND TEMPORARY PART-TIME EMPLOYEES; SUPERVISORY
EMPLOYEES; MANAGERIAL TRAINEES; PERSONNEL EMPLOYEES EMPLOYED IN OTHER
THAN A PURELY CLERICAL CAPACITY; PROFESSIONAL EMPLOYEES; MILITARY
PERSONNEL EMPLOYED DURING OFF-DUTY HOURS; GUARDS; AND WATCHMEN.
BOTH PARTIES CONTEND THAT THE PROPOSED EXCLUSION OF OFF-DUTY MILITARY
PERSONNEL IS WARRANTED BASED, AMONG OTHER THINGS, ON THE LABOR RELATIONS
HISTORY OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, HEREIN CALLED AAFES,
WHERE OFF-DUTY MILITARY EMPLOYEES HAVE TRADITIONALLY BEEN EXCLUDED FROM
BARGAINING UNITS; THE ABSENCE OF A COMMUNITY OF INTEREST BETWEEN THE
MILITARY AND CIVILIAN EMPLOYEES OF THE ACTIVITY; THE ADVERSE EFFECT
INCLUSION OF MILITARY PERSONNEL IN THE PROPOSED UNIT WOULD HAVE ON THE
EFFICIENCY OF THE OPERATIONS OF THE ACTIVITY; AND VARIOUS DIRECTIVES
AND REGULATIONS ISSUED BY THE DEPARTMENT OF DEFENSE, DEPARTMENT OF THE
ARMY, THE DEPARTMENT OF THE AIR FORCE, AND THE AAFES WITH RESPECT TO THE
EMPLOYMENT OF MILITARY AND CIVILIAN PERSONNEL.
THE ACTIVITY IS AN ADMINISTRATIVE SUBDIVISION OF THE AAFES WHOSE
MISSION IS TO PROVIDE SERVICE SERVICES TO MEMBERS OF THE ARMED FORCES
AND TO GENERATE REASONABLE EARNINGS IN ORDER TO BUILD RECREATIONAL AND
WELFARE FACILITIES FOR ITS MEMBERS. IT IS OPERATED UNDER PERSONNEL
POLICIES ESTABLISHED BY THE CHIEF, AAFES, WHO IS GOVERNED BY REGULATIONS
OF THE ARMY, THE AIR FORCE, AND THE DEPARTMENT OF DEFENSE. ALL
EMPLOYEES OF THE ACTIVITY WORK IN ONE OF TWO BUILDINGS OCCUPIED BY THE
ACTIVITY AT THE NORTON AIR FORCE BASE. ONE OF THE BUILDINGS IS USED BY
FULL-TIME EMPLOYEES WHO PERFORM CLERICAL AND ADMINISTRATIVE FUNCTIONS
EXCLUSIVELY. THE OTHER BUILDING IS A WAREHOUSE WHERE MERCHANDISE IS
RECEIVED, STORED AND SHIPPED. EMPLOYEES IN SEVERAL DIFFERENT
CLASSIFICATIONS, INCLUDING OFF-DUTY MILITARY PERSONNEL /4/, WORK IN THE
WAREHOUSE.
AT THE OUTSET OF THE HEARING IN THIS CASE, THE ACTIVITY AND THE AFGE
TOOK THE POSITION THAT WHERE, AS HERE, THERE IS NO DISPUTE BETWEEN THE
PARTIES AS TO THE APPROPRIATENESS OF THE UNIT SOUGHT, AN ELECTION IN
THAT UNIT MUST BE SUPERVISED BY THE ASSISTANT SECRETARY. THIS POSITION
WAS BASED ON THE VIEW THAT THERE IS NO PROVISION IN THE EXECUTIVE ORDER
OR THE ASSISTANT SECRETARY'S REGULATIONS WHICH WOULD PERMIT THE
ASSISTANT SECRETARY TO ORDER A REPRESENTATION HEARING IN SUCH
CIRCUMSTANCES AND THEREBY DEFER THE HOLDING OF AN ELECTION. BASED ON
THE FOREGOING CONTENTION, THE ACTIVITY MOVED TO DISMISS THE NOTICE OF
HEARING IN THIS CASE. /5/
FOR THE REASONS ENUNCIATED IN ARMY AND AIR FORCE EXCHANGE SERVICE,
WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW
MEXICO A/SLMR NO. 25, I REJECT THE PARTIES' CONTENTION IN THIS RESPECT.
ACCORDINGLY, THE RULING OF THE HEARING OFFICER IS HEREBY AFFIRMED, AND
THE MOTION OF THE ACTIVITY IS HEREBY DENIED.
THE RECORD ESTABLISHES THAT OFF-DUTY MILITARY PERSONNEL ARE HIRED BY
THE ACTIVITY TO WORK IN ITS WAREHOUSE FACILITY WHEN THERE IS A NEED FOR
EXTRA HELP. THESE EMPLOYEES GENERALLY WORK ON LESS THAN A THIRTY-HOUR A
WEEK BASIS, ARE COMPENSATED AT THE SAME HOURLY RATE FOR THEIR SERVICES
AS CIVILIAN PERSONNEL (INCLUDING DOUBLE-TIME FOR HOLIDAY WORK) AND WORK
UNDER THE SAME GENERAL TERMS AND CONDITIONS OF EMPLOYMENT AS CIVILIAN
PERSONNEL. FURTHER, THE WORK PERFORMED BY OFF-DUTY MILITARY PERSONNEL
IS PERFORMED BY CIVILIAN EMPLOYEES WHEN OFF-DUTY MILITARY PERSONNEL ARE
NOT AVAILABLE.
TRADITIONALLY, UNDER EXECUTIVE ORDER 10988, MILITARY PERSONNEL
EMPLOYED DURING OFF-DUTY HOURS HAVE BEEN EXCLUDED FROM UNITS COVERED BY
FORMAL OR EXCLUSIVE RECOGNITION THROUGHOUT THE AAFES SYSTEM. THIS
REQUIREMENT APPEARED IN JOINT REGULATIONS ISSUED PURSUANT TO EXECUTIVE
ORDER 10988 REGULATIONS IMPLEMENTING EXECUTIVE ORDER 11491. UNDER THESE
REGULATIONS AND THE PERSONNEL POLICIES OF THE AAFES, NO OFF-DUTY
MILITARY PERSONNEL ARE HIRED ON A REGULAR BASIS; THEY MAY BE APPOINTED
ONLY TO TEMPORARY PART-TIME CLASSIFICATIONS IRRESPECTIVE OF THE LENGTH
OF TIME THEY WORK, WHILE TEMPORARY FULL-TIME OR TEMPORARY PART-TIME
CIVILIAN PERSONNEL ARE REQUIRED TO BE CONVERTED TO REGULAR FULL-TIME OR
REGULAR PART-TIME CATEGORIES AFTER 90 DAYS ON THE JOB. FURTHER,
OFF-DUTY MILITARY PERSONNEL DO NOT RECEIVE MERIT PROMOTIONS OR SHARE IN
CERTAIN FRINGE BENEFITS. /6/
THE ACTIVITY AND THE AFGE CONTENT THAT OFF-DUTY MILITARY PERSONNEL DO
NOT SHARE A SUFFICIENT COMMUNITY OF INTEREST WITH THE CIVILIAN EMPLOYEES
OF THE ACTIVITY TO WARRANT THEIR INCLUSION IN THE UNIT BECAUSE THEIR
PRESENCE ON THE JOB IS SUBJECT TO THE WILL OF THEIR COMMANDING OFFICER;
THEY ARE CONSIDERED TO BE IN A MILITARY DUTY STATUS 24 HOURS A DAY;
THEY ARE SUBJECT TO RELOCATION AT ANY TIME BY THE MILITARY; AND THEIR
INCLUSION IN THE PROPOSED UNIT WOULD HAVE AN ADVERSE EFFECT ON THE
EFFICIENCY OF THE ACTIVITY'S OPERATIONS.
FOR THE REASON ENUNCIATED IN DEPARTMENT OF NAVY, NAVY EXCHANGE,
MAYPORT, FLORIDA, A/SLMR NO. 24 AND ARMY AND AIR FORCE EXCHANGE SERVICE,
WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW
MEXICO, CITED ABOVE, I FIND THAT, ONCE HIRED, OFF-DUTY MILITARY
PERSONNEL STAND IN SUBSTANTIALLY THE SAME EMPLOYMENT RELATIONSHIP WITH
THE ACTIVITY AS DO OTHER ACTIVITY EMPLOYEES AND THAT THEIR EXCLUSION
FROM THE UNIT BASED SOLELY ON THEIR MILITARY STATUS IS UNWARRANTED.
BASED ON THE FOREGOING AND NOTING THAT THE PETITIONED FOR UNIT COVERS
ALL OF THE ACTIVITY'S REGULAR FULL-TIME AND REGULAR PART-TIME EMPLOYEES,
/7/ I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491:
/8/
ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY AND UNIVERSAL
SALARY PLAN EMPLOYEES, INCLUDING OFF-DUTY MILITARY PERSONNEL IN EITHER
OF THESE FOREGOING CATEGORIES EMPLOYED BY THE SOUTHERN CALIFORNIA
EXCHANGE REGION, ARMY AND AIR FORCE EXCHANGE SERVICE, NORTON AIR FORCE
BASE, EXCLUDING ALL CASUAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED
IN THE ORDER. /9/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
45 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1485.
DATED, WASHINGTON, D.C. 4 APRIL 21, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ THE PETITIONER FILED AN UNTIMELY BRIEF WHICH HAS NOT BEEN
CONSIDERED.
/4/ THE RECORD REVEALS THAT THE ONLY TYPE OF WORK ASSIGNED OFF-DUTY
MILITARY PERSONNEL IS "MARKING," WHICH APPARENTLY INVOLVES MARKING
MERCHANDISE FOR SALE OR SHIPMENT.
/5/ THE HEARING OFFICER DENIED THE ACTIVITY'S MOTION AND THE LATTER
NOW REQUESTS THAT THE ASSISTANT SECRETARY CONSIDER THE MOTION.
/6/ OFF-DUTY MILITARY PERSONNEL DO NOT SHARE IN SUCH FRINGE BENEFITS
AS HOSPITALIZATION, INSURANCE, OR RETIREMENT BENEFITS BECAUSE THEY
RECEIVE SUCH BENEFITS BY VIRTUE OF THEIR MILITARY STATUS.
/7/ UNDER THE ACTIVITY'S DEFINITION, REGULAR FULL-TIME EMPLOYEES WORK
ON A 40-HOUR A WEEK BASIS AND REGULAR PART-TIME EMPLOYEES ARE HIRED FOR
AN EXPECTED PERIOD OF MORE THAN 90 DAYS WITH A REGULARLY SCHEDULED
WORKWEEK OF AT LEAST 16 BUT LESS THAN 35 HOURS. SEE, IN THIS RESPECT,
FOOTNOTE 3 IN ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS MISSILE
RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW MEXICO, CITED ABOVE.
/8/ I AM ADVISED ADMINISTRATIVELY THAT THE AFGE'S THIRTY PERCENT
SHOWING OF INTEREST IN THIS CASE REMAINS INTACT DESPITE THE INCLUSION OF
OFF-DUTY MILITARY PERSONNEL IN THE PETITIONED FOR UNIT.
/9/ ALTHOUGH THE PETITION, AS AMENDED AT THE HEARING, CONTAINED
REFERENCES TO SEVERAL OTHER EXCLUDED CLASSIFICATIONS, THE RECORD IS NOT
CLEAR AS TO WHETHER THERE ARE ANY "MANAGERIAL TRAINEES" WHO, BECAUSE OF
THEIR ALLEGED MANDATORY EXCLUDABLE STATUS AS MANAGEMENT OFFICIALS,
SHOULD BE EXCLUDED FROM THE UNIT. THE RECORD ALSO IS NOT CLEAR AS TO
THE CLASSIFICATIONS "TEMPORARY FULL-TIME", "TEMPORARY PART-TIME", OR
"WATCHMEN" WHO, BECAUSE OF THE PECULIAR NATURE OF THEIR EMPLOYMENT, MAY
NOT SHARE A SUBSTANTIAL COMMUNITY OF INTEREST WITH THE UNIT EMPLOYEES
AND SHOULD THEREFORE BE EXCLUDED FROM THE UNIT. IN THESE CIRCUMSTANCES,
I MAKE NO FINDING WITH RESPECT TO SUCH POSSIBLE CLASSIFICATIONS. WITH
RESPECT TO "CASUAL EMPLOYEES", THE RECORD ESTABLISHES THAT THEY ARE
EMPLOYED ON AN EMERGENCY BASIS WHEN SOMEONE DOES NOT APPEAR FOR WORK AND
APPARENTLY THEY HAVE NO REASONABLE EXPECTANCY OF REGULAR EMPLOYMENT. IT
THEREFORE APPEARS THAT THE EXCLUSION OF SUCH EMPLOYEES FROM THE UNIT IS
WARRANTED.
1 A/SLMR 25; P. 146; CASE NO. 63-2053(E); APRIL 21, 1971.
ARMY AND AIR FORCE EXCHANGE SERVICE,
WHITE SANDS MISSILE RANGE EXCHANGE,
WHITE SANDS MISSILE RANGE, NEW MEXICO
A/SLMR NO.25
THIS CASE, WHICH AROSE AS A RESULT OF A REPRESENTATION PETITION FILED
BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 158 (NFFE), PRESENTED
THE QUESTIONS WHETHER REGULAR PART-TIME EMPLOYEES AND OFF-DUTY MILITARY
EMPLOYEES SHOULD BE INCLUDED IN THE UNIT AND WHETHER THE ASSISTANT
SECRETARY IS REQUIRED TO ACQUIESCE IN THE PARTIES' POSITION AS TO
OFF-DUTY MILITARY PERSONNEL BECAUSE THERE WAS NO DISPUTE BETWEEN THEM ON
THIS QUESTION.
THE NFFE REQUESTED A UNIT OF ALL REGULAR FULL-TIME EMPLOYEES OF THE
WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW
MEXICO EXCLUDING, AMONG OTHERS, REGULAR PART-TIME EMPLOYEES AND ALL
OFF-DUTY MILITARY PERSONNEL. THE ACTIVITY ASSERTED THAT TO PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS THE UNIT SHOULD INCLUDE
ALL REGULAR PART-TIME EMPLOYEES. BOTH NFFE AND THE ACTIVITY AGREED THAT
OFF-DUTY MILITARY PERSONNEL EMPLOYED SHOULD BE EXCLUDED FROM THE UNIT.
THE ASSISTANT SECRETARY CONCLUDED THAT NEITHER THE ORDER NOR THE
REGULATIONS WHICH IMPLEMENTED THE ORDER REQUIRED THAT THE ASSISTANT
SECRETARY MUST ACCEPT UNIT INCLUSIONS OR EXCLUSIONS BECAUSE THE PARTIES
AGREE ON SUCH MATTERS OR THAT AN ELECTION MUST BE HELD IN EVERY CASE
WHERE THE PARTIES AGREE AS TO THE APPROPRIATENESS OF THE UNIT SOUGHT.
HE NOTED THAT IF, IN THE PROCESSING OF REPRESENTATION CASES, IT APPEARS
THAT SUBSTANTIAL QUESTIONS OF POLICY ARE PRESENTED, THERE IS NO BASIS IN
THE ORDER OR THE ASSISTANT SECRETARY'S REGULATIONS WHICH WOULD REQUIRE
THAT BECAUSE THE PARTIES ARE IN AGREEMENT ON THE UNIT AN ELECTION MUST
BE HELD AUTOMATICALLY WITHOUT RESORT TO A HEARING ON THE ISSUES
INVOLVED.
UNDER ALL CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
APPROPRIATE UNIT SHOULD INCLUDE BOTH THE REGULAR FULL-TIME AND REGULAR
PART-TIME CIVILIAN EMPLOYEES AND THOSE OFF-DUTY MILITARY PERSONNEL, WHO
CAME WITHIN THE CATEGORIES REGULAR FULL-TIME OR REGULAR PART-TIME.
WITH RESPECT TO THE REGULAR PART-TIME EMPLOYEES, THE ASSISTANT
SECRETARY FOUND THAT THEY SHARED A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST WITH THE REGULAR FULL-TIME EMPLOYEES BASED ON THE REGULARITY OF
THEIR EMPLOYMENT AND THE FACT THAT BOTH CATEGORIES SHARED COMMON
SUPERVISION, PAY, JOB ASSIGNMENTS, WORKING CONDITIONS, HOURS OF WORK AND
ARE COVERED BY UNIFORM LABOR RELATIONS POLICIES.
AS TO OFF-DUTY MILITARY PERSONNEL, THE ASSISTANT SECRETARY CONCLUDED,
FOR THE REASONS ENUNCIATED IN DEPARTMENT OF THE NAVY, NAVY EXCHANGE,
MAYPORT, FLORIDA, A/SLMR NO.24, THAT ONCE HIRED, OFF-DUTY MILITARY
PERSONNEL STAND IN SUBSTANTIALLY THE SAME EMPLOYMENT RELATIONSHIP AS DO
OTHER EMPLOYEES OF THE ACTIVITY AND THAT THEIR EXCLUSION FROM THE UNIT
BASED SOLELY ON THEIR MILITARY STATUS WAS UNWARRANTED. IN THIS RESPECT
HE NOTED THAT AGENCY REGULATIONS PROHIBITING OFF-DUTY MILITARY PERSONNEL
FROM BEING INCLUDED IN EMPLOYEE BARGAINING UNITS WOULD NOT BE
DETERMINATIVE SINCE SUCH REGULATIONS, IN THE ASSISTANT SECRETARY'S VIEW,
CONTRAVENED THE PURPOSES OF THE ORDER.
IN VIEW OF THE INCLUSION IN THE PETITIONED FOR UNIT OF REGULAR
PART-TIME EMPLOYEES AND OFF-DUTY MILITARY PERSONNEL, THE ASSISTANT
SECRETARY ORDERED THAT THE NFFE'S PETITION BE DISMISSED ON THE BASIS
THAT THE INCLUSION OF THESE ADDITIONAL EMPLOYEES RENDERED INADEQUATE THE
NFFE'S SHOWING OF INTEREST.
ARMY AND AIR FORCE EXCHANGE SERVICE,
WHITE SANDS MISSILE RANGE EXCHANGE,
WHITE SANDS MISSILE RANGE, NEW MEXICO /1/
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 158
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER MERLE RIDER. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
158, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL OF THE
ACTIVITY'S NON-SUPERVISORY REGULAR FULL-TIME EMPLOYEES EXCLUDING, AMONG
OTHERS, ALL OFF-DUTY MILITARY PERSONNEL AND EMPLOYEES CLASSIFIED AS
REGULAR PART-TIME. THE ACTIVITY ASSERTS THAT IN ORDER TO PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS, THE UNIT PETITIONED FOR
SHOULD INCLUDE ALL REGULAR PART-TIME EMPLOYEES, BUT AGREES WITH THE NFFE
THAT OFF-DUTY MILITARY PERSONNEL SHOULD BE EXCLUDED FROM THE CLAIMED
UNIT.
THE ACTIVITY IS LOCATED AT THE WHITE SANDS MISSILE RANGE, NEW MEXICO.
ITS EMPLOYEES PERFORM THEIR DUTIES AT SEVEN LOCATIONS: A MAIN STORE,
AN AUTOMOBILE SERVICE STATION, A BEAUTY SHOP, A CAFETERIA, A RESTAURANT,
AND TWO SNACK BARS. EMPLOYEES CLASSIFIED AS REGULAR FULL-TIME AND
REGULAR PART-TIME ARE ASSIGNED TO ALL OF THESE LOCATIONS.
THE ACTIVITY EMPLOYES APPROXIMATELY 40 EMPLOYEES CLASSIFIED AS
REGULAR FULL-TIME AND 21 EMPLOYEES CLASSIFIED AS REGULAR PART-TIME. /2/
THE EVIDENCE ESTABLISHES THAT THERE IS NO DIFFERENTIATION OR DISTINCTION
MADE BETWEEN REGULAR FULL-TIME AND REGULAR PART-TIME EMPLOYEES AS TO JOB
ASSIGNMENTS AND THAT BOTH GROUPS OF EMPLOYEES ARE ASSIGNED
INTERCHANGEABLY TO WORK IN THE SAME JOBS UNDER THE SAME SUPERVISION.
THERE IS ALSO NO DISTINCTION IN RATES OF PAY BETWEEN THE TWO GROUPS,
UNDER COMPARABLE CONDITIONS, AND THE MEMBERS OF EACH GROUP POSSESS
ESSENTIALLY THE SAME BASIC SKILLS. IN ADDITION, THE RECORD REVEALS THAT
OFTEN, THE REGULAR FULL-TIME EMPLOYEES ARE RECRUITED FROM THE RANKS OF
THE REGULAR PART-TIME GROUP, AND, ON OCCASION, MEMBERS OF ONE GROUP WILL
SUBSTITUTE FOR MEMBERS OF THE OTHER. THE MEMBERS OF BOTH GROUPS SHARE
THE SAME FACILITIES, SUCH AS REST ROOMS, LOCKERS AND LUNCHROOM. ALSO,
THE LABOR RELATIONS POLICIES WITH REGARD TO BOTH GROUPS ARE CONTROLLED
BY THE GENERAL MANAGER OF THE ACTIVITY.
BASED UPON THE FOREGOING, I FIND THAT THE REGULAR PART-TIME EMPLOYEES
SHOULD BE INCLUDED IN THE PETITIONED FOR UNIT. THUS, BASED ON THE
ACTIVITY'S DEFINITION OF A REGULAR PART-TIME EMPLOYEE, THESE EMPLOYEES
WORK ON A REGULAR BASIS FOR SUBSTANTIAL PERIODS OF TIME DURING EACH
WORK-WEEK. /3/ ALSO, THEY SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST WITH REGULAR FULL-TIME EMPLOYEES IN THAT BOTH CATEGORIES HAVE
COMMON SUPERVISION, WORKING CONDITIONS, RATES OF PAY AND LABOR RELATIONS
POLICIES. ACCORDINGLY, AND NOTING THE ACTIVITY'S CONTENTION THAT THE
EXCLUSION OF REGULAR PART-TIME EMPLOYEES WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF OPERATIONS, I FIND THAT THE ACTIVITY'S
REGULAR PART-TIME EMPLOYEES HAVE A COMMUNITY OF INTEREST WITH THE
EMPLOYEES IN THE PETITIONED FOR UNIT AND, AS SUCH, IF AN ELECTION WERE
DIRECTED, SHOULD HAVE THE RIGHT TO VOTE ON THE QUESTION OF WHETHER OR
NOT THEY DESIRE TO BE REPRESENTED ON AN EXCLUSIVE BASIS.
AT THE HEARING, THE ACTIVITY MOVED THAT THE EXCLUSION OF OFF-DUTY
MILITARY PERSONNEL FROM THE PETITIONED FOR UNIT NOT BE CONSIDERED BY THE
ASSISTANT SECRETARY. THE HEARING OFFICER OVERRULED THE MOTION, AND THE
ACTIVITY REASSERTED THIS CONTENTION IN ITS BRIEF. THE POSITION OF THE
ACTIVITY IS BASED ON THE VIEW THAT WHERE, AS HERE, THERE IS NO DISPUTE
BETWEEN THE PARTIES AS TO THE EXCLUSION OF OFF-DUTY MILITARY PERSONNEL,
THERE IS NO QUESTION PRESENTED TO THE ASSISTANT SECRETARY; AND, IN THE
ABSENCE OF A QUESTION PRESENTED FOR RESOLUTION, THE ASSISTANT SECRETARY
IS BOUND TO ACCEPT THE AGREEMENT OF THE PARTIES AS TO THIS MATTER.
NEITHER THE EXECUTIVE ORDER NOR THE ASSISTANT SECRETARY'S REGULATIONS
IMPLEMENTING THE ORDER REQUIRE THAT THE ASSISTANT SECRETARY MUST ACCEPT
UNIT INCLUSIONS OR EXCLUSIONS BETWEEN THE PARTIES AGREED ON SUCH MATTERS
OR THAT AN ELECTION MUST BE HELD IN EVERY CASE WHERE THE PARTIES AGREE
AS TO THE APPROPRIATENESS OF THE UNIT SOUGHT. SECTION 6(A)(1) OF THE
EXECUTIVE ORDER GRANTS TO THE ASSISTANT SECRETARY THE POWER TO DECIDE
QUESTIONS AS TO THE APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION. IN THE PROCESSING OF REPRESENTATION PETITIONS UNDER THE
EXECUTIVE ORDER, AREA ADMINISTRATORS AND HEARING OFFICERS ACT AS AGENTS
OF THE ASSISTANT SECRETARY. WHEN AT ANY STAGE IN THE COURSE OF
PROCESSING A REPRESENTATION PETITION IT APPEARS THAT A SUBSTANTIAL
QUESTION OF POLICY IS PRESENTED, THERE IS NO BASIS IN THE ORDER OR THE
ASSISTANT SECRETARY'S REGULATIONS WHICH WOULD REQUIRE THE ASSISTANT
SECRETARY TO DEFER TO THE AGREEMENT OF THE PARTIES IN RESOLVING THE
POLICY QUESTION. NOR IS THERE ANY BASIS IN THE ORDER OR THE ASSISTANT
SECRETARY'S REGULATIONS WHICH WOULD REQUIRE THAT BECAUSE THE PARTIES ARE
IN AGREEMENT ON THE UNIT AN ELECTION MUST BE HELD WITHOUT RESORT TO A
HEARING ON THE ISSUES INVOLVED. IN MY OPINION, TO ADOPT A CONTRARY VIEW
WOULD NOT BE CONSISTENT WITH THE ROLE WHICH THE ASSISTANT SECRETARY WAS
INTENDED TO PLAY IN THE PROCESSING OF REPRESENTATION CASES UNDER THE
ORDER. /4/ ACCORDINGLY, BASED ON THE FOREGOING, THE HEARING OFFICER'S
RULING IS HEREBY AFFIRMED, AND THE ACTIVITY'S CONTENTIONS MADE IN ITS
BRIEF ARE HEREBY REJECTED. /5/
OFF-DUTY MILITARY PERSONNEL /6/
THE RECORD ESTABLISHES THAT MILITARY PERSONNEL ARE HIRED BY THE
ACTIVITY TO WORK AS PART-TIME EMPLOYEES DURING THEIR OFF-DUTY HOURS,
WHICH OCCUR PRIMARILY DURING EVENING HOURS AND ON WEEKENDS. /7/ THE
RECORD FURTHER DISCLOSES THAT THEY ARE HIRED TO PERFORM DUTIES OF THE
SAME TYPE AS THE REGULAR FULL-TIME AND REGULAR PART-TIME CIVILIAN
EMPLOYEES, UNDER COMMON SUPERVISION, RECEIVING COMPARABLE PAY UNDER
COMPARABLE CONDITIONS, AND WORKING AT THE SAME LOCATIONS AS THE CIVILIAN
EMPLOYEES. THE RECORD ALSO REVEALS THAT THERE ARE INSTANCES WHERE
OFF-DUTY MILITARY EMPLOYEES AND CIVILIAN EMPLOYEES WORK AT THE SAME
JOBS, AT THE SAME TIME, AND THAT OFF-DUTY MILITARY PERSONNEL USE THE
SAME FACILITIES UTILIZED BY THE CIVILIAN EMPLOYEES.
IN THESE CIRCUMSTANCES, AND FOR THE REASONS ENUNCIATED IN DEPARTMENT
OF THE NAVY, NAVY EXCHANGE, MAYPORT, FLORIDA, A/SLMR NO. 24, I FIND
THAT, ONCE HIRED, OFF-DUTY MILITARY PERSONNEL STAND IN SUBSTANTIALLY THE
SAME EMPLOYMENT RELATIONSHIP WITH THE ACTIVITY AS DO OTHER ACTIVITY
EMPLOYEES AND THAT THEIR EXCLUSION FROM THE UNIT BASED SOLELY ON THEIR
MILITARY STATUS IS UNWARRANTED. WITH RESPECT TO THE CONTENTION BY THE
ACTIVITY THAT THE REGULATIONS AND POLICIES OF THE DEPARTMENT OF THE
ARMY, THE DEPARTMENT OF THE AIR FORCE AND THE ARMY AND AIR FORCE
EXCHANGE SERVICE PROHIBIT THE INCLUSION OF OFF-DUTY MILITARY PERSONNEL
IN BARGAINING UNITS, THERE IS NOTHING IN THE STUDY COMMITTEE'S REPORT
AND RECOMMENDATIONS WHICH PRECEDED EXECUTIVE ORDER 11491, OR THE ORDER
ITSELF, WHICH REQUIRES THAT IN PROCESSING REPRESENTATION CASES, THE
ASSISTANT SECRETARY IS BOUND TO ACCEPT AS DETERMINATIVE REGULATIONS OR
POLICIES OF GOVERNMENT AGENCIES WHICH CONTRAVENE THE PURPOSES OF THE
ORDER. /8/ MOREOVER, I REJECT ALSO THE CONTENTION THAT I AM BOUND TO
ACCEPT AS DETERMINATIVE IN THIS CASE THE FACT THAT CERTAIN AREA
ADMINISTRATORS HAVE ISSUED CERTIFICATION IN UNITS WHICH EXPRESSLY
EXCLUDE OFF-DUTY MILITARY PERSONNEL.
IN VIEW OF THE FOREGOING, I FIND THAT THE EXCLUSION OF REGULAR
PART-TIME CIVILIAN EMPLOYEES AND OFF-DUTY MILITARY PERSONNEL FROM THE
UNIT SOUGHT HEREIN IS UNWARRANTED. I AM ADVISED ADMINISTRATIVELY THAT
THE INCLUSION OF BOTH THESE GROUPS IN THE PETITIONED FOR UNIT RENDERS
INADEQUATE THE NFFE'S SHOWING OF INTEREST.
ACCORDINGLY, I SHALL DISMISS THE PETITION IN THE SUBJECT CASE.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 63-2053 E BE, AND
IT HEREBY IS DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 21, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE ACTIVITY'S REGULATIONS DEFINE A REGULAR PART-TIME EMPLOYEE AS
AN EMPLOYEE HIRED FOR AN EXPECTED PERIOD OF MORE THAN 90 DAYS WITH A
REGULARLY SCHEDULED WORK-WEEK OF AT LEAST 16 BUT LESS THAN 35 HOURS.
/3/ THE FACT THAT IN THIS CASE THE ACTIVITY CLASSIFIES REGULAR
PART-TIME EMPLOYEES AS THOSE WHO WORK A REGULARLY SCHEDULED WORK-WEEK OF
AT LEAST 16 BUT LESS THAN 35 HOURS WOULD NOT NECESSARILY BE DISPOSITIVE
IN ALL CASES INVOLVING ISSUES RELATING TO PART-TIME EMPLOYEES. THUS,
EVEN WHERE A LESSER NUMBER OF HOURS IS WORKED, IF EMPLOYEES WORK ON A
REGULAR BASIS FOR A SUFFICIENT PERIOD OF TIME DURING EACH WEEK, OR OTHER
APPROPRIATE CALENDAR PERIOD, THEY WOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE.
/4/ IN THIS REGARD, SEE THE STUDY COMMITTEE'S REPORT AND
RECOMMENDATIONS ON LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE,
WHICH PRECEDED THE ISSUANCE OF THE EXECUTIVE ORDER. SECTION D(2) OF
THAT REPORT AND RECOMMENDATIONS STATES, IN RELEVANT PART,
"REPRESENTATION AND ELECTION ISSUES WHICH THE ASSISTANT SECRETARY
DETERMINES WARRANT HEARINGS SHOULD BE HEARD BY PERSONS APPOINTED BY HIM
TO MAKE RECOMMENDATIONS TO HIM."
/5/ AS NOTED ABOVE, THE ASSISTANT SECRETARY'S REGULATIONS DO NOT
REQUIRE A CONTRARY RESULT. SECTION 202.4(H) OF THE REGULATIONS PROVIDE
THAT WITH RESPECT TO THE PROCESSING OF REPRESENTATION PETITIONS, "THE
AREA ADMINISTRATOR SHALL REPORT THE ESSENTIAL FACTS AND POSITIONS OF THE
PARTIES TO THE REGIONAL ADMINISTRATOR." SECTION 202.4(I) OF THE
REGULATIONS PROVIDES THAT, "THE REGIONAL ADMINISTRATOR SHALL TAKE
APPROPRIATE MEASURES WHICH MAY CONSIST OF THE APPROVAL OF A WITHDRAWAL
REQUEST OR DISMISSAL OF THE PETITION, OR THE SUPERVISION OF AN ELECTION
IN AN APPROVED AGREED-UPON APPROPRIATE UNIT OR THE CONDUCT OF A
HEARING." THERE IS NO INDICATION IN THE ABOVE REGULATIONS THAT THE
DECISION TO CONDUCT A HEARING IS IN ANY WAY CONTINGENT ON THERE BEING A
DISPUTE BETWEEN THE PARTIES.
/6/ SEVERAL REPRESENTATION PETITIONS INVOLVING THE STATUS OF OFF-DUTY
MILITARY PERSONNEL WERE FILED WITH AREA OFFICES AND THESE MATTERS WERE
SUBSEQUENTLY HEARD BEFORE VARIOUS HEARING OFFICERS. AS PART OF MY
CONSIDERATION OF THE ISSUE, I HAVE CONSIDERED THE CONTENTIONS SET FORTH
IN DEPARTMENT OF THE NAVY, NAVY EXCHANGE, MAYPORT, FLORIDA, CASE NO.
42-1202(RO); SOUTHERN CALIFORNIA EXCHANGE REGION, ARMY AND AIR FORCE
EXCHANGE SERVICE, NORTON AIR FORCE BASE, SAN BERNARDINO, CALIFORNIA,
CASE NO. 72-1528; NONAPPROPRIATED FUND, FISCAL CONTROL OFFICE, ACX-N,
ELMENDORF AIR FORCE BASE, ALASKA, CASE NO. 71-1401(RO); AND U.S. ARMY
TRAINING CENTER, FORT LEONARD WOOD, MISSOURI, ETC., CASE NO. 62-1751(E)
TO THE EXTENT THAT THEY RELATE TO THIS ISSUE.
/7/ THERE ARE APPROXIMATELY 35 OFF-DUTY MILITARY PERSONNEL CURRENTLY
EMPLOYED BY THE ACTIVITY. THE RECORD ESTABLISHES THAT APPROXIMATELY 8
OF THESE EMPLOYEES HAVE BEEN EMPLOYED ON A CONTINUING BASIS FOR A PERIOD
OF ABOUT 2 YEARS. AN ADDITIONAL 15 TO 20 HAVE BEEN EMPLOYED FOR 6
MONTHS, WHICH IS TWICE AS LONG AS NECESSARY TO QUALIFY AS A REGULAR
PART-TIME EMPLOYEE UNDER THE ACTIVITY'S REGULATIONS.
/8/ SEE CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1. THUS, OFF-DUTY
MILITARY PERSONNEL WHO WORK A SUFFICIENT NUMBER OF HOURS TO BE
CLASSIFIED AS EITHER REGULAR FULL-TIME OR REGULAR PART-TIME MAY NOT BE
EXCLUDED FROM A BARGAINING UNIT ON THE BASIS OF AGENCY REGULATIONS WHICH
CHARACTERIZE SUCH PERSONNEL AS "TEMPORARY" EMPLOYEES OR WHICH OTHERWISE
AUTOMATICALLY EXCLUDE THEM FROM UNITS SOUGHT.
1 A/SLMR 24; P. 142; CASE NO. 42-1202(RO); APRIL 21, 1971.
DEPARTMENT OF NAVY,
NAVY EXCHANGE,
MAYPORT, FLORIDA
A/SLMR NO. 24
THIS CASE, WHICH AROSE AS A RESULT OF A REPRESENTATION PETITION
FILLED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2010, (AFGE), PRESENTED THE QUESTIONS WHETHER PROBATIONARY
EMPLOYEES AND OFF-DUTY MILITARY EMPLOYEES SHOULD BE INCLUDED IN THE
PETITIONED FOR UNIT.
THE AFGE REQUESTED A UNIT COMPOSED SOLELY OF EMPLOYEES OF THE
ACTIVITY WHO WERE IN PERMANENT FULL-TIME AND PERMANENT PART-TIME
CLASSIFICATIONS. PROBATIONARY EMPLOYEES WERE EXCLUDED ON THE BASIS THAT
THEIR HIGH RATE OF TURNOVER WOULD RESULT IN UNSTABLE LABOR RELATIONS IF
THEY WERE INCLUDED WITHIN THE UNIT. THE AFGE ALSO SOUGHT TO EXCLUDE
OFF-DUTY MILITARY EMPLOYEES ON THE BASIS THAT THEY WERE ON MILITARY DUTY
24 HOURS A DAY, THEY HAD A HIGH RATE OF TURNOVER IN THEIR JOBS BECAUSE
OF THE SHORT DURATION OF THEIR MILITARY DUTY AT THE NAVAL STATION AND
THEY DID NOT HAVE A GENUINE INTEREST IN THE WORKING CONDITIONS WITHIN
THE UNIT. THE ACTIVITY SOUGHT THE INCLUSION OF THOSE TWO GROUPS OF
EMPLOYEES ON THE BASIS THAT THEY HAD A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST WITH THE PETITIONED FOR EMPLOYEES AND TO EXCLUDE THEM WOULD
NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS.
THE ASSISTANT SECRETARY FOUND THAT THE PROBATIONARY EMPLOYEES IN THIS
CASE HAD A COMMUNITY OF INTEREST WITH EMPLOYEES IN THE CLAIMED UNIT
DESPITE EVIDENCE OF TURNOVER. HE NOTED THAT THEY PERFORMED THE SAME
WORK PERFORMED BY EMPLOYEES IN THE PETITIONED FOR UNIT; THAT THERE WAS
NO EVIDENCE THAT PROBATIONARY EMPLOYEES DID NOT RECEIVE AND HOLD THEIR
EMPLOYMENT WITH A COMTEMPLATION OF PERMANENT TENURE; AND THAT THE
PERMANENT EMPLOYEES IN THE CLAIMED UNIT WERE AT THE COMMENCEMENT OF
THEIR EMPLOYMENT PROBATIONARY EMPLOYEES. IN THESE CIRCUMSTANCES, THE
ASSISTANT SECRETARY FOUND THAT THE EXCLUSION OF PROBATIONARY EMPLOYEES
FROM THE CLAIMED UNIT WAS UNWARRANTED.
WITH RESPECT TO OFF-DUTY MILITARY PERSONNEL WORKING FOR THE ACTIVITY,
THE ASSISTANT SECRETARY FOUND THAT, WHEN HIRED, THEY WERE SUBJECT TO THE
SAME PROCEDURES AND PRACTICES AND WERE HIRED ON THE SAME BASIS AS THEIR
CIVILIAN COUNTERPARTS. FURTHER, THE WORK PERFORMED BY OFF-DUTY MILITARY
PERSONNEL WAS NOT DISTINGUISHABLE FROM OTHER WORK PERFORMED BY VARIOUS
EMPLOYEES IN THE CLAIMED UNIT. THE RECORD ALSO DEMONSTRATED THAT
OFF-DUTY MILITARY PERSONNEL WERE NOT REQUIRED TO OBTAIN THE APPROVAL OF
THEIR COMMANDING OFFICERS WITH RESPECT TO THEIR EMPLOYMENT AT THE
ACTIVITY AND THE ACTIVITY WAS NOT REQUIRED TO NOTIFY THEIR COMMANDING
OFFICERS OF THEIR EMPLOYMENT. ADDITIONALLY, THE RECORD REVEALED THAT
OFF-DUTY MILITARY PERSONNEL WERE NOT PROHIBITED BY THE NAVY FROM
JOINING, FORMING OR ASSISTING LABOR ORGANIZATIONS.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
EXCLUSION OF OFF-DUTY MILITARY PERSONNEL, AS A CLASS, FROM THE
PETITIONED FOR UNIT, IS UNWARRANTED. HE NOTED PARTICULARLY THAT
OFF-DUTY MILITARY PERSONNEL WORK IN THE SAME OCCUPATIONAL CATEGORIES AND
ARE SUBJECT TO THE SAME GENERAL WORKING CONDITIONS, INCLUDING THE SAME
WAGE SCALE, AS CIVILIAN EMPLOYEES. WITH RESPECT TO THE CONTENTIONS THAT
MILITARY PERSONNEL ARE CONSIDERED TO BE IN A MILITARY DUTY STATUS 24
HOURS A DAY AND ARE SUBJECT TO THE WILL OF THEIR COMMANDING OFFICERS,
THE ASSISTANT SECRETARY FOUND THAT THE TEST OF WHETHER AN EMPLOYEE
SHARES A COMMUNITY OF INTEREST WITH HIS FELLOW EMPLOYEES SUFFICIENT TO
BE INCLUDED IN A UNIT WITH THEM DEPENDS ON HIS IMMEDIATE STATUS WHILE IN
THE EMPLOYMENT RELATIONSHIP AND NOT ON WHAT ULTIMATE CONTROL HE MAY BE
SUBJECTED TO AT OTHER TIME. THE ASSISTANT SECRETARY ALSO FOUND THAT THE
GENERAL EXCLUSION OF OFF-DUTY MILITARY EMPLOYEES WHO SHARE A COMMUNITY
OF INTEREST WITH EXCLUSIVELY REPRESENTED EMPLOYEES FROM THE UNIT WOULD
NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS BECAUSE THE
ACTIVITY, IN EFFECT, WOULD BE CONFRONTED WITH A FRAGMENTED GROUPING OF
EMPLOYEES WHOSE GENERAL WORKING CONDITIONS WERE CLOSELY RELATED TO THE
EXCLUSIVELY REPRESENTED EMPLOYEES AND YET, THOSE EMPLOYEES WOULD NOT BE
PART OF THE REPRESENTED UNIT.
IN VIEW OF THE INCLUSION IN THE PETITIONED FOR UNIT OF THE DISPUTED
CATEGORIES OF EMPLOYEES, THE ASSISTANT SECRETARY ORDERED THAT THE AFGE'S
PETITION BE DISMISSED ON THE BASIS THAT THE INCLUSION OF THESE
ADDITIONAL EMPLOYEES RENDERED INADEQUATE THE AFGE'S SHOWING OF INTEREST.
DEPARTMENT OF THE NAVY,
NAVY EXCHANGE,
MAYPORT, FLORIDA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2010 /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER SEYMOUR X. ALSHER. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
/2/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2010, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL NONSUPERVISORY PERMANENT FULL-TIME AND PERMANENT PART-TIME CIVILIAN
EMPLOYEES EMPLOYED AT THE NAVAL EXCHANGE IN MAYPORT, FLORIDA, EXCLUDING,
AMONG OTHERS, TEMPORARY FULL-TIME EMPLOYEES, TEMPORARY PART-TIME
EMPLOYEES, OFF-DUTY MILITARY PERSONNEL AND PROBATIONARY EMPLOYEES. /3/
THE AFGE CONTENDS THAT THE PROPOSED EXCLUSION OF PROBATIONARY EMPLOYEES
IS WARRANTED BASED ON THE VIEW THAT BECAUSE OF THEIR HIGH RATE OF
TURNOVER THEIR INCLUSION IN THE UNIT WOULD RESULT IN UNSTABLE LABOR
RELATIONS. WITH RESPECT TO THE EXCLUSION OF OFF-DUTY MILITARY
EMPLOYEES, THE AFGE ASSERTS THEY ARE ON MILITARY DUTY 24 HOURS A DAY,
HAVE A HIGH RATE OF TURNOVER DUE TO THE SHORT DURATION OF THEIR MILITARY
DUTY AT THE NAVAL STATION AND THEY DO NOT HAVE A GENUINE INTEREST IN THE
WORKING CONDITIONS WITHIN THE UNIT.
THE ACTIVITY, ON THE OTHER HAND, CONTENDS THAT BOTH PROBATIONARY AND
OFF-DUTY MILITARY EMPLOYEES SHOULD BE INCLUDED IN THE PETITIONED FOR
UNIT. IT IS THE ACTIVITY'S POSITION THAT THESE TWO CLASSIFICATIONS OF
EMPLOYEES HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH THE
EMPLOYEES IN THE CLAIMED UNIT AND TO EXCLUDE THEM WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF ITS OPERATIONS.
THE ACTIVITY IS COMPOSED OF A GREAT VARIETY OF RETAIL SALES SERVICES
INCLUDING A DEPARTMENT STORE, RESTAURANTS, CAFETERIAS, SNACK BARS,
ENLISTED MEN'S CLUBS, ENGRAVING AND EMBOSSING SERVICES, LAUNDRY AND DRY
CLEANING SERVICES, A BARBER SHOP AND BEAUTY SALON, A SERVICE STATION AND
AUTO REPAIR SHOP, A TAILOR SHOP, A PORTRAIT STUDIO, A WATCH REPAIR SHOP,
HOTEL AND MOTEL SERVICES, VENDING SERVICES AND AMUSEMENT MACHINES.
THESE OPERATIONS ARE CONDUCTED IN 19 OR 20 DIFFERENT BUILDINGS WITHIN
THE MAYPORT NAVAL STATION. IN CARRYING OUT ITS FUNCTIONS, THE ACTIVITY
EMPLOYS APPROXIMATELY 216 EMPLOYEES INCLUDING 99 PERMANENT EMPLOYEES, 74
PROBATIONARY EMPLOYEES, 30 OFF-DUTY MILITARY EMPLOYEES AND 13 TEMPORARY
EMPLOYEES.
WITH REGARD TO THE BARGAINING HISTORY PRIOR TO THE FILING OF THE
PETITION IN THE SUBJECT CASE, THE ACTIVITY ACCORDED FORMAL RECOGNITION
TO THE AFGE IN JULY 1968 FOR ALL EXCHANGE EMPLOYEES AT THE MAYPORT NAVAL
STATION, EXCLUDING MANAGEMENT PERSONNEL.
PROBATIONARY EMPLOYEES
PROBATIONARY EMPLOYEES ARE HIRED TO FILL PERMANENT POSITIONS WITHIN
THE ACTIVITY. THEY PERFORM THE SAME WORK AS OTHER EMPLOYEES COVERED BY
THE PETITION; /4/ USE THE SAME EQUIPMENT; HAVE THE SAME WAGE SYSTEM;
ACCRUE THE SAME VACATION AND SICK LEAVE BENEFITS; /5/ HAVE THE SAME
INSURANCE AND RETIREMENT BENEFITS; RECEIVE THE SAME PAY INCREASES; USE
THE SAME REPORTING PROCEDURES; WORK FOR THE SAME SUPERVISORS; HAVE THE
SAME WORK SHIFTS AND HOURS; RECEIVE THE SAME TRAINING; HAVE THE SAME
OPPORTUNITY TO PROGRESS TO ALL JOBS IN THE ACTIVITY; AND HAVE, AS DO
PERMANENT EMPLOYEES, A GRIEVANCE PROCEDURE WHICH THEY MAY UTILIZE. /6/
WITH RESPECT TO THE EVIDENCE OF TURNOVER AMONG PROBATIONARY
EMPLOYEES, THE RECORD REVEALS THAT 3 DEPARTMENTS, NAMELY, THE SERVICE
STATION AND AUTOMOTIVE SUPPLY, FOOD SERVICE, AND CLUB ACTIVITIES WERE
RESPONSIBLE FOR APPROXIMATELY 66 PERCENT OF PROBATIONARY EMPLOYEE
SEPARATIONS AT THE ACTIVITY. THE HIGH RATE OF TURNOVER IN THESE
DEPARTMENTS WAS ATTRIBUTED BY THE ACTIVITY TO THE NATURE OF THEIR
OPERATIONS WHICH INVOLVED EITHER SERVICE STATION OR FOOD SERVICE
OPERATIONS WHICH WERE OPENED SEVEN DAYS A WEEK, TEN OR FIFTEEN HOURS A
DAY, WITH FLUCTUATING WORK HOURS AND WORK LOADS. THE RECORD ALSO
ESTABLISHED THAT THE JOBS IN THESE DEPARTMENTS WERE USUALLY ROUTINE IN
NATURE, REQUIRING A MINIMUM OF TRAINING, AND THAT THE HIGH TURNOVER RATE
WAS NOT LIMITED TO PROBATIONARY EMPLOYEES BUT THE RATE ALSO WAS HIGH
AMONG THE PERMANENT EMPLOYEES IN THE ACTIVITY.
IN ALL THE CIRCUMSTANCES, I FIND THE PROBATIONARY EMPLOYEES OF THE
ACTIVITY HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH THE
EMPLOYEES IN THE PETITIONED FOR UNIT. THE EVIDENCE ESTABLISHES THAT THE
GENERAL CONDITIONS OF WORK OR PROBATIONARY EMPLOYEES ARE LIKE THOSE OF
THE EMPLOYEES IN THE CLAIMED UNIT. IN ADDITION, DESPITE A HIGH RATE OF
TURNOVER, THERE IS NO EVIDENCE THAT, AS A GROUP, THE PROBATIONARY
EMPLOYEES OF THE ACTIVITY DO NOT RECEIVE AND HOLD THEIR EMPLOYMENT WITH
A CONTEMPLATION OF PERMANENT TENURE. /7/ ACCORDINGLY, AND NOTING THE
ACTIVITY'S CONTENTION THAT THE EXCLUSION OF PROBATIONARY EMPLOYEES WOULD
NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS, I FIND THAT
THE ACTIVITY'S PROBATIONARY EMPLOYEES HAVE A COMMUNITY OF INTEREST WITH
THE EMPLOYEES IN THE PETITIONED FOR UNIT AND, AS SUCH, SHOULD, IF AN
ELECTION WERE DIRECTED, HAVE THE RIGHT TO VOTE ON THE QUESTION OF
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED ON AN EXCLUSIVE BASIS.
OFF-DUTY MILITARY PERSONNEL /8/
THE RECORD ESTABLISHES THAT OFF-DUTY MILITARY PERSONNEL ARE HIRED BY
THE ACTIVITY, SUBJECT TO THE SAME PROCEDURES AND PRACTICES AND PHYSICAL
EXAMINATION REQUIREMENTS AS THEIR CIVILIAN COUNTERPARTS, TO FILL
FULL-TIME OR PART-TIME POSITIONS WITHIN THE ACTIVITY. THEY ARE HIRED ON
THE BASIS OF MERIT AND FITNESS, ARE NOT LIMITED TO ANY PARTICULAR
LOCATIONS WITHIN THE ACTIVITY AND ARE RETAINED AS REGULAR EMPLOYEES UPON
THE EXPIRATION OF A TRIAL PERIOD DEPENDING UPON THEIR QUALIFICATIONS,
SUITABILITY AND CONTINUED AVAILABILITY FOR SUCH EMPLOYMENT. FURTHER,
THE WORK PERFORMED BY OFF-DUTY MILITARY PERSONNEL IS NOT DISTINGUISHABLE
FROM THE WORK PERFORMED BY VARIOUS EMPLOYEES IN THE PETITIONED FOR UNIT.
WITH RESPECT TO THE CONTENTION THAT MILITARY PERSONNEL ARE ON DUTY 24
HOURS A DAY, THE EVIDENCE ESTABLISHES THAT MILITARY PERSONNEL WORKING
FOR THE ACTIVITY ARE NOT REQUIRED TO OBTAIN THE APPROVAL OF THEIR
COMMANDING OFFICERS WITH RESPECT TO WHETHER THEY MAY BE SO EMPLOYED, NOR
IS THE ACTIVITY REQUIRED TO NOTIFY THEIR COMMANDING OFFICERS OF THEIR
EMPLOYMENT WHILE OFF-DUTY. MOREOVER, THE RECORD REVEALS THAT THE
COMMANDING OFFICERS EXERCISE NO CONTROL OVER THE OUTSIDE ACTIVITIES OF
MILITARY PERSONNEL AND THAT MILITARY PERSONNEL, WHILE IN OFF-DUTY
STATUS, ARE NOT PROHIBITED BY THE NAVY FROM FORMING, JOINING OR
ASSISTING LABOR ORGANIZATIONS.
WITH RESPECT TO THE CONTENTION THAT WHILE ON THE JOB OFF-DUTY
MILITARY PERSONNEL ARE AT ALL TIMES SUBJECT TO THE WILL OF THEIR
COMMANDING OFFICERS, I FIND THAT THE TEST AS TO WHETHER AN EMPLOYEE
SHARES A COMMUNITY OF INTEREST WITH HIS FELLOW EMPLOYEES SO AS TO BE
INCLUDED IN A UNIT WITH THEM DEPENDS ON HIS IMMEDIATE STATUS WHILE IN
THE EMPLOYMENT RELATIONSHIP AND NOT ON WHAT ULTIMATE CONTROL HE MAY BE
SUBJECTED TO AT OTHER TIMES. THUS, WHERE THERE EXISTS SUBSTANTIAL
EVIDENCE OF COMMUNITY OF INTEREST, I WILL NOT EXCLUDE OFF-DUTY MILITARY
PERSONNEL BASED ON CERTAIN LATENT CONTROL EXERCISED BY THE MILITARY OVER
THE EMPLOYEES INVOLVED.
BASED UPON THE RECORD IN THE SUBJECT CASE, I FIND THAT THE OFF-DUTY
MILITARY PERSONNEL EMPLOYED BY THE ACTIVITY SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WITH THE CIVILIAN EMPLOYEES AND THAT
THEIR GENERAL EXCLUSION FROM THE PETITIONED FOR UNIT IS UNWARRANTED.
THE RECORD SHOWS THAT WHILE EMPLOYED BY THE ACTIVITY, THE OFF-DUTY
MILITARY PERSONNEL PERFORM SUBSTANTIALLY THE SAME WORK AND ARE PAID
SUBSTANTIALLY THE SAME WAGE RATE AS CIVILIAN EMPLOYEES. FURTHER, THEY
WORK IN THE SAME OCCUPATIONAL CATEGORIES, AND ARE SUBJECT TO THE SAME
SUPERVISION, THE SAME LABOR RELATIONS POLICIES AND THE SAME GENERAL
WORKING CONDITIONS AS THE CIVILIAN EMPLOYEES. IN VIEW OF THESE
CIRCUMSTANCES, I FIND THAT, ONCE HIRED, OFF-DUTY MILITARY PERSONNEL
STAND IN SUBSTANTIALLY THE SAME EMPLOYMENT RELATIONSHIP WITH THE
ACTIVITY AS DO ALL OTHER ACTIVITY EMPLOYEES. /9/
I FIND, FURTHER, THAT THE EXCLUSION OF A GROUP OF OFF-DUTY MILITARY
PERSONNEL WHO SHARE A COMMUNITY OF INTEREST WITH OTHER EXCLUSIVELY
REPRESENTED EMPLOYEES WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. IN MY VIEW, IF SUCH A CATEGORY OF
EMPLOYEES WERE EXCLUDED, THE ACTIVITY WOULD BE CONFRONTED WITH A
FRAGMENTED GROUPING OF EMPLOYEES, WHOSE GENERAL WORKING CONDITIONS ARE
RELATED CLOSELY TO THOSE OF THE EXCLUSIVELY REPRESENTED EMPLOYEES, AND
YET, WHO ARE NOT A PART OF THE REPRESENTED UNIT. ACCORDINGLY, I FIND
THAT THE GENERAL EXCLUSION FROM THE PETITIONED FOR OF OFF-DUTY MILITARY
PERSONNEL WHO WORK FOR THE ACTIVITY IS UNWARRANTED.
I AM ADVISED ADMINISTRATIVELY THAT THE INCLUSION IS THE PETITIONED
FOR UNIT OF APPROXIMATELY 74 PROBATIONARY EMPLOYEES AND CERTAIN OFF-DUTY
MILITARY PERSONNEL EMPLOYED BY THE ACTIVITY /10/ RENDERS INADEQUATE THE
AFGE'S SHOWING OF INTEREST.
ACCORDINGLY, I SHALL DISMISS THE PETITION IN THE SUBJECT CASE.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 42-1202(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED WASHINGTON, D.C.
APRIL 21, 1971
/1/ THE PETITIONER'S NAME APPEARS AS AMENDED AT THE HEARING.
/2/ THE PETITIONER FILED AN UNTIMELY BRIEF WHICH HAS NOT BEEN
CONSIDERED.
/3/ THE AFGE'S CLAIMED UNIT WAS AMENDED AT THE HEARING.
/4/ AS NOTED ABOVE, THE PETITIONED FOR UNIT COVERS ALL PERMANENT
FULL-TIME AND PERMANENT PART-TIME EMPLOYEES AT THE ACTIVITY. THE RECORD
ESTABLISHES THAT, AS DEFINED BY THE ACTIVITY, A PERMANENT EMPLOYEE IS
ONE WHO IS EMPLOYED IN A PERMANENT POSITION AND EITHER HAS A REGULAR
WORK WEEK OF THIRTY TWO HOURS OR MORE AND HAS COMPLETED A SIX MONTH
PROBATIONARY PERIOD OF CONTINUOUS SATISFACTORY EMPLOYMENT OR HAS A WORK
WEEK OF LESS THAN THIRTY TWO HOURS AND HAS COMPLETED TWELVE MONTHS OF
CONTINUOUS SATISFACTORY EMPLOYMENT AS A PART-TIME PROBATIONARY EMPLOYEE.
THERE WAS NO DISAGREEMENT BETWEEN THE PARTIES THAT BOTH CLASSIFICATIONS
OF PERMANENT EMPLOYEES BELONGED WITHIN THE UNIT SOUGHT.
/5/ PROBATIONARY EMPLOYEES ARE NOT PERMITTED TO USE THEIR LEAVE
BENEFITS UNTIL ATTAINING PERMANENT STATUS.
/6/ PERMANENT EMPLOYEES HAVE FIVE DAYS TO APPEAL A REMOVAL ACTION,
PLUS APPEAL RIGHTS TO THE COMMANDER OF THE BASE AND TO THE NAVAL RETAIL
SYSTEM OFFICE. PROBATIONARY EMPLOYEES HAVE ONE DAY TO APPEAL A REMOVAL
ACTION TO THE EXCHANGE OFFICER PLUS AN APPEAL TO THE BASE COMMANDER.
/7/ IN THIS RESPECT, IT WAS NOTED THAT THE EMPLOYEES WHO ARE INCLUDED
IN THE PETITIONED FOR UNIT WERE, AT THE COMMENCEMENT OF THEIR EMPLOYMENT
PROBATIONARY EMPLOYEES.
/8/ SEVERAL REPRESENTATION PETITIONS INVOLVING THE STATUS OF OFF-DUTY
MILITARY PERSONNEL WERE FILED WITH AREA OFFICES AND THESE MATTERS WERE
SUBSEQUENTLY HEARD BEFORE VARIOUS HEARING OFFICERS. AS PART OF MY
CONSIDERATION OF THIS ISSUE, I HAVE CONSIDERED THE CONTENTIONS SET FORTH
IN ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS MISSILE RANGE, NEW
MEXICO, CASE NO. 63-2053(E); SOUTHERN CALIFORNIA EXCHANGE REGION, ARMY
AND AIR FORCE EXCHANGE SERVICE, NORTON AIR FORCE BASE, SAN BERNARDINO,
CALIFORNIA, CASE NO. 72-1528; NONAPPROPRIATED FUND, FISCAL CONTROL
OFFICE, ACX-N, ELMENDORF AIR FORCE BASE, ALASKA, CASE NO. 71-1401(RO);
AND U.S. ARMY TRAINING CENTER AND FORT LEONARD WOOD, MISSOURI, ETC.,
CASE NO. 62-1751(E) TO THE EXTENT THAT THEY RELATE TO THIS ISSUE.
/9/ THE FACT THAT OFF-DUTY MILITARY PERSONNEL DO NOT SHARE IN SOME OF
THE FRINGE BENEFITS ENJOYED BY CIVILIAN PERSONNEL OF THE ACTIVITY--
I.E., INSURANCE AND RETIREMENT BENEFITS-- BECAUSE THESE BENEFITS ARE
ALREADY PROVIDED FOR THEM BY VIRTUE OF THEIR MILITARY STATUS, DOES NOT,
IN MAY OPINION, MINIMIZE THEIR COMMUNITY OF INTEREST WITH CIVILIAN
EMPLOYEES WHERE BOTH CATEGORIES SHARE THE SAME EMPLOYMENT RELATIONSHIP
WITH THE ACTIVITY WHILE ON THE JOB.
/10/ OF THE 30 OFF-DUTY MILITARY PERSONNEL EMPLOYED BY THE ACTIVITY,
THE RECORD REVEALS THAT 22 ARE CLASSIFIED "PART-TIME" AND 8 ARE
CLASSIFIED AS "FULL-TIME."
1 A/SLMR 23; P. 139; CASE NO. 40-1956(RO); APRIL 7, 1971.
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION, ATLANTA, DEFENSE CONTRACT
ADMINISTRATION SERVICES DISTRICT,
BIRMINGHAM
A/SLMR NO. 23
THE SUBJECT CASE INVOLVING A REPRESENTATION PETITION FILED BY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL NO. 561 PRESENTED THE
QUESTION WHETHER A GROUP OF THE ACTIVITY'S EMPLOYEES WORKING IN MOBILE,
ALABAMA CONSTITUTED AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
PETITIONED FOR UNIT WAS NOT APPROPRIATE. IN REACHING THIS
DETERMINATION, THE ASSISTANT SECRETARY RELIED ON THE FACT THAT THE
PROPOSED UNIT IS NOT AN ORGANIZATION ENTITY, BUT, RATHER, CONSISTS OF
SEGMENTS OF THREE DIVISIONS HEADQUARTERED ELSEWHERE. HE NOTED THAT THE
EMPLOYEES' FIRST LINE OF SUPERVISION, IN MOST CASES, WAS LOCATED
ELSEWHERE AND THAT NON-MOBILE EMPLOYEES REPORTED DIRECTLY TO THAT SAME
SUPERVISOR. IN POINTING UP THE ROUTINE INTERCHANGE OF MOBILE EMPLOYEES
WITH EMPLOYEES ELSEWHERE IN THE ACTIVITY'S DISTRICT, THE ASSISTANT
SECRETARY EMPHASIZED THAT THE PERSONNEL MANAGEMENT OF ALL DISTRICT
EMPLOYEES, INCLUDING MOBILE EMPLOYEES, WAS EFFECTUATED AT A LEVEL NO
LOWER THAN THE DISTRICT HEADQUARTERS, THAT MOST VACANCIES AND PROMOTIONS
WERE FILLED BY DISTRICT-WIDE OR REGION-WIDE COMPETITION AND THAT ALL
DISTRICT EMPLOYEES SHARE IDENTICAL FRINGE BENEFITS. ALSO, HE VIEWED AS
PARTICULARLY RELEVANT THE FACT THAT THE MOBILE EMPLOYEES PERFORMED
FUNCTIONS IDENTICAL TO THOSE PERFORMED BY SIMILARLY SITUATED EMPLOYEES
THROUGHOUT THE ACTIVITY'S DISTRICT.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
EMPLOYEES IN THE UNIT SOUGHT BY THE PETITION DID NOT POSSESS A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST AND THAT SUCH A UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED.
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION, ATLANTA, DEFENSE CONTRACT
ADMINISTRATION SERVICES DISTRICT,
BIRMINGHAM /1/
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL NO. 561 /2/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3024
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
/3/ A HEARING WAS HELD BEFORE HEARING OFFICER SEYMOUR X. ALSHER. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED. /4/
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. FOR THE REASON DISCUSSED BELOW, NO QUESTION CONCERNING THE
REPRESENTATION OF CERTAIN EMPLOYEES OF THE ACTIVITY EXISTS WITH THE
MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491.
3. PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL NO.
561, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL
NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF THE DEFENSE CONTRACT
ADMINISTRATION SERVICE DISTRICT (DSASD), BIRMINGHAM LOCATED AT MOBILE,
ALABAMA, EXCLUDING PROFESSIONALS, MANAGEMENT OFFICIALS, SUPERVISORS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY AND GUARDS AS DEFINED IN THE EXECUTIVE ORDER. THE
ACTIVITY AND THE INTERVENOR, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3024, HEREIN CALLED AFGE, CONTEND THAT THE
MOBILE UNIT IS INAPPROPRIATE, AND THAT THE DISTRICT-WIDE UNIT, IN WHICH
AFGE WAS ACCORDED EXCLUSIVE RECOGNITION, IS THE ONLY APPROPRIATE UNIT.
THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), ATLANTA,
WITH APPROXIMATELY 1600 EMPLOYEES, ADMINISTERS THE PROCUREMENT AND
DISTRIBUTION OF GOODS FOR THE DEPARTMENT OF DEFENSE AND OTHER FEDERAL
AGENCIES THROUGHOUT THE SEVEN SOUTHEASTERN STATES AND THE CARIBBEAN.
THE DCASD, BIRMINGHAM IS A SUBDIVISION THEREOF, EXERCISING
RESPONSIBILITIES IN ALABAMA, MISSISSIPPI, A PORTION OF FLORIDA, AND THE
WESTERN HALF OF TENNESSEE.
WITHIN THE GEOGRAPHICAL AREA ADMINISTERED BY DCASD, BIRMINGHAM IS A
DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE LOCATED IN HUNTSVILLE,
ALABAMA (HEREIN REFERRED TO AS DCASO, HUNTSVILLE). WITH ADMINISTRATION
RESPONSIBILITIES LIMITED TO SEVERAL AREA PLANTS CONTRACTING WITH THE
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, DCASO, HUNTSVILLE'S CHIEF
REPORTS TO THE COMMANDER OF DCASD, BIRMINGHAM. THE ACTIVITY CONSIDERS
DCASO, HUNTSVILLE TO BE THE ONLY REAL SUBDIVISION OF DCASD, BIRMINGHAM.
HOWEVER, LOCATED IN THE CITY OF BIRMINGHAM IS A DEFENSE CONTRACT
ADMINISTRATION SERVICES PROCUREMENT OFFICE (HEREIN REFERRED TO AS
DCASPRO). DEPENDENT UPON DCASD, BIRMINGHAM ONLY FOR "HOUSE CLEANING"
SERVICES, DCASPRO, WHOSE OPERATIONS ARE CONFINED TO THE PLANT OF HAYES
INTERNATIONAL CORPORATION, REPORTS DIRECTLY TO DCASR, ATLANTA.
PARALLELLING THE DCASR, ATLANTA STRUCTURE, DCASD, BIRMINGHAM IS
COMPRISED PRIMARILY OF THREE DIVISIONS: PRODUCTION, WITH APPROXIMATELY
50 EMPLOYEES; QUALITY ASSURANCE, WITH 200 EMPLOYEES; AND CONTRACT
ADMINISTRATION, WITH 50 EMPLOYEES. THE REMAINING 100 PERSONNEL IN
DCASD, BIRMINGHAM ARE LOCATED IN DCASO, HUNTSVILLE. EACH DIVISION
STATIONS PERSONNEL THROUGH THE DISTRICT, NEAR THE PERFORMANCE AREA OF
THE PARTICULAR CONTRACT INVOLVED.
THERE ARE TWO ADDITIONAL SEGMENTS CONCERNED WITH THE ADMINISTRATION
OF THE CONTRACTS: (1) THE OFFICE OF CONTRACTS COMPLIANCE, WITH
PERSONNEL STATIONED AT DCASR, ATLANTA HEADQUARTERS AND AT DCASD,
BIRMINGHAM HEADQUARTERS, SERVICES CONTRACTORS OR POTENTIAL CONTRACTORS
TO ENSURE THAT THEY ARE EQUIPPED AND ARE COMPLYING WITH VARIOUS
STATUTES' EQUAL EMPLOYEMENT OPPORTUNITY PROVISION; AND (2) THE
INDUSTRIAL SECURITY OFFICE, AGAIN WITH PERSONNEL AT THE REGIONAL AND
DISTRICT HEADQUARTERS LEVELS, IS CONCERNED ONLY WITH ENSURING SECURITY
WHERE CLASSIFIED CONTRACTS ARE INVOLVED.
NFFE'S PETITION REQUESTS AN ELECTION AMONG CERTAIN EMPLOYEES LOCATED
AT MOBILE, ALABAMA, WHO HAVE BEEN ASSIGNED TO THAT AREA TO ADMINISTER
LOCAL CONTRACTS. GENERALLY, THE APPROXIMATE 28 EMPLOYEES IN MOBILE WORK
IN EITHER THE CONTINENTAL MOTORS CORPORATION PLANT OR THE LEAR-SIEGLER,
INCORPORATED PLANT, BOTH OF WHICH ARE LOCATED ON THE BROOKLEY AIR FORCE
BASE INSTALLATION. THE RECORD REVEALS THAT SEVERAL EMPLOYEES WHO WOULD
BE INCLUDED IN THE MOBILE UNIT MAKE CALLS AT PLANTS OUTSIDE MOBILE. THE
MOBILE EMPLOYEES, RANGING IN GRADE FROM GS-3 THROUGH GS-13, ARE ASSIGNED
EXCLUSIVELY TO EITHER THE QUALITY ASSURANCE DIVISION (QAD), WHICH
ENSURES COMPLIANCE WITH CONTRACT SPECIFICATIONS; OR THE PRODUCTION
DIVISION (PD), WHICH MONITORS SCHEDULES; OR THE CONTRACT ADMINISTRATION
DIVISION (CAD), WHICH GENERALLY COORDINATES MATTERS RELATING TO THE
CONTRACT.
THERE IS NO CHIEF RESIDENT OR ADMINSTRATIVE HEAD OVER THE MOBILE
EMPLOYEES. EXCEPT FOR A FIRST LEVEL SUPERVISOR WHO POSSESS
RESPONSIBILITIES LIMITED TO A FEW QAD EMPLOYEES AT CONTINENTAL, THE
RECORD REVEALS NO OTHER LOCAL SUPERVISOR. THE REMAINING QAD EMPLOYEES
REPORT DIRECTLY TO A BRANCH CHIEF IN JACKSON, MISSISSIPPI, WHO HAS QAD
EMPLOYEES, STATIONED ELSEWHERE, REPORTING TO HIM. THE PD AND CA
EMPLOYEES REPORT DIRECTLY TO THEIR RESPECTIVE CHIEFS IN THE BIRMINGHAM
HEADQUARTERS.
THE MOBILE EMPLOYEES, WITHIN THEIR RESPECTIVE DIVISIONS, PERFORM
SIMILAR DUTIES AS ALL OTHER DISTRICT EMPLOYEES. MOREOVER, THEY SHARE
IDENTICAL FRINGE BENEFITS WITH ALL DISTRICT EMPLOYEES.
HIRING, FIRING AND EQUIVALENT PERSONNEL ACTIONS ARE EFFECTED BY THE
REGIONAL COMMANDER THROUGH HIS CIVILIAN PERSONNEL OFFICE (CPO) AT DCASR,
ATLANTA. PERSONNEL POLICIES FOR THE ENTIRE REGION ARE ESTABLISHED AT
THAT LEVEL. DISCIPLINARY ACTION LIMITED TO SUSPENSION HAS BEEN
DELEGATED TO THE DISTRICT COMMANDER. REPRIMAND AUTHORITY IS DELEGATED
TO THE IMMEDIATE SUPERVISOR. AS A MATTER OF OPERATING CONVENIENCE, THE
REGIONAL CPO HAS A SMALL DETACHMENT OF PERSONNEL LOCATED IN BIRMINGHAM
AT THE DISTRICT HEADQUARTERS. THESE EMPLOYEES, THE ONLY PERSONNEL
EMPLOYEES LOCATED IN THE DISTRICT, REPORT DIRECTLY TO THE CHIEF OF CPO
IN ATLANTA. PERSONNEL RECORDS OF ALL DISTRICT EMPLOYEES ARE MAINTAINED
AT THE BIRMINGHAM HEADQUARTERS.
PURSUANT TO REGION-WIDE POLICY, VACANCIES AND PROMOTIONS IN GRADES
GS-1 THROUGH GS-6 ARE FILLED BY COMPETITION WITH THE COMMUTING AREA OF
THE VACANT JOB. VACANCIES AND PROMOTIONS IN GRADES GS-7 THROUGH GS-11
ARE FILLED BY COMPETITION ON A DISTRICT-WIDE BASIS, AND THOSE IN GRADES
ABOVE GS-11 ARE FILLED BY REGION-WIDE COMPETITION. A SIMILAR POLICY
APPLIES IN SITUATIONS OF REDUCTION IN FORCE. THE RECORD REVEALS THAT
TEMPORARY ASSIGNMENT OF MOBILE EMPLOYEES TO OTHER AREAS WITHIN THE
DISTRICT IS ROUTINE. AS FOR PERMANENT REASSIGNMENT, SUCH MUST
NECESSARILY DEPEND ENTIRELY UPON THE PARTICULAR PLANT'S CONTRACT. IF,
FOR ANY REASON, THE CONTRACT TERMINATES, THERE IS NO NEED FOR EMPLOYEES
TO REMAIN AT THAT PARTICULAR PLANT AND THEY ARE MOVED ELSEWHERE. WITH
THE INCEPTION OF THE CONTINENTAL AND LEAR-SIEGLER CONTRACTS, THE PRESENT
MOBILE EMPLOYEES WERE MOVED IN FROM OTHER PARTS OF THE DISTRICT WHERE
WORKLOADS HAD DECREASED.
THE EVIDENCE REFLECTS THAT EMPLOYEE-MANAGEMENT RELATIONS BEGINS AT
THE DISTRICT LEVEL AND PROGRESSES TO THE REGION IN THE EVENT OF A LACK
OF RESOLUTION. THE ACTIVITY'S LABOR RELATIONS SPECIALIST, WHO WOULD
HANDLE ANY NEGOTIATION WITHIN THE ENTIRE REGION, IS LOCATED AT THE
ATLANTA REGIONAL HEADQUARTERS. AT THE TIME OF NFFE'S GRANT OF FORMAL
RECOGNITION AND AFGE'S GRANT OF EXCLUSIVE RECOGNITION, THE CHIEF OF CPO
IN ATLANTA WAS DESIGNATED AS THE "FOCAL POINT OF CONTRACT," BUT THE
PARTIES WERE ADVISED THEY COULD "CONTACT" MANAGEMENT PERSONNEL IN THE
BIRMINGHAM DISTRICT HEADQUARTERS.
IN VIEW OF THE ABOVE FACTORS, IT IS APPARENT THAT THE MOBILE UNIT
DOES NOT CONSTITUTE A DISTINCT AND HOMOGENOUS GROUPING OF THE ACTIVITY'S
EMPLOYEES. THE PROPOSED UNIT IS NOT AN ORGANIZATIONAL ENTITY, BUT
RATHER CONSISTS OF SEGMENTS OF THREE DIVISIONS HEADQUARTERED ELSEWHERE.
THUS, MOST EMPLOYEES REPORT DIRECTLY TO A SUPERVISOR, LOCATED ELSEWHERE,
WHO HAS NON-MOBILE EMPLOYEES ALSO REPORTING TO HIM. THE RECORD ALSO
CONTAINS EVIDENCE OF TEMPORARY AND PERMANENT REASSIGNMENTS OF EMPLOYEES
IN THE CLAIMED UNIT TO OTHER POINTS WITHIN THE DISTRICT. MOST VACANCIES
AND PROMOTIONS ARE FILLED BY COMPETITION THROUGHOUT THE DISTRICT OR
REGION, WHICH FURTHER CONTRIBUTES TO THE LACK OF STABILITY OF THE MOBILE
WORK FORCE. FURTHER, MOBILE EMPLOYEES SHARE IDENTICAL FRINGE BENEFITS
WITH EMPLOYEES THROUGHOUT THE DISTRICT.
IT IS CLEAR THAT THE MOBILE EMPLOYEES, SOME OF WHOM EVEN WORK OUTSIDE
MOBILE AND ALL OF WHOM WORK SEGREGATED FROM AT LEAST PART OF THE OTHER
EMPLOYEES, SHARE NO CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST. THE
RECORD ESTABLISHES THAT THE DUTIES OF MOBILE EMPLOYEES, AS A GROUP, ARE
NOT UNIQUE FROM THOSE OF OTHER GROUPS THROUGHOUT THE DISTRICT.
SIMILARLY, THE INDIVIDUAL EMPLOYEES PERFORM THE SAME DUTIES AS DO THOSE
IN SIMILAR CLASSIFICATIONS THROUGHOUT THE DISTRICT. MOREOVER, SINCE THE
MOBILE EMPLOYEES WORK IN THREE DIFFERENT DIVISIONS, THEY MUST POSSESS
DIFFERENT SKILLS. THESE SKILLS APPARENTLY RUN THE GAMUT OF THOSE IN THE
ENTIRE DISTRICT, SINCE THE MOBILE GRADES RANGE FROM GS-3 TO GS-13.
THE RECORD REVEALS THAT THERE IS NO DISTINCTIVENESS OF FUNCTION IN
THE MOBILE UNIT SINCE THOSE EMPLOYEES ARE BUT A SMALL PART OF THE TOTAL
RELATED FUNCTIONS OF EACH OVERALL DIVISION. MOREOVER, THE UNIT SOUGHT
REPRESENTS BUT A SMALL PORTION OF THE TOTAL INTEGRATED WORK PROCESS OF
ALL FUNCTIONS (CA, QAD, AND PD) ASSOCIATED WITH CONTRACT ADMINISTRATION
IN THE DCASD, BIRMINGHAM.
I ALSO FIND THAT THE UNIT PROPOSED BY THE NFFE, WHICH ARTIFICALLY
DIVIDES AND FRAGMENTS THE DISTRICT, CANNOT REASONABLY BE EXPECTED TO
PROMOTE EFFECTIVE DEALINGS /5/ OR EFFICIENCY OF AGENCY OPERATIONS.
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE NFFE DOES
NOT CONSTITUTE AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 40-1956(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 7,1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING. 4
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ FOLLOWING REQUESTS FOR EXCLUSIVE RECOGNITION, PURSUANT TO
NOWSUPERSEDED EXECUTIVE ORDER 10988, BY THE PETITIONER FOR THE SAME UNIT
PETITIONED FOR IN THE SUBJECT CASE, AND BY THE INTERVENOR FOR A MORE
COMPREHENSIVE DISTRICT-WIDE UNIT, THE ACTIVITY ON DECEMBER 29, 1969,
GRANTED EXCLUSIVE RECOGNITION TO THE INTERVENOR AND DENIED THE
PETITIONER'S REQUEST. SIMULTANEOUSLY, THE ACTIVITY WITHDREW ITS OCTOBER
29, 1969, GRANT OF FORMAL RECOGNITION TO THE PETITIONER. IN VIEW OF THE
ABSENCE OF APPELLATE RIGHTS TO THE SECRETARY OF LABOR WHICH WERE NO
LONGER AVAILABLE UNDER SUPERSEDED EXECUTIVE ORDER 10988, THE
PETITIONER'S TIMELY APPEAL WAS PERFECTED AS AN INITIAL PETITION UNDER
EXECUTIVE ORDER 11491 AND WAS PROCESSED ACCORDINGLY. IN THESE
CIRCUMSTANCES, THE GRANT OF EXCLUSIVE RECOGNITION TO THE INTERVENOR IS
CONSIDERED TO BE NO BAR TO THIS PROCEEDING.
/4/ THE HEARING OFFICER REFERRED THE INTERVENOR'S MOTION TO DISMISS,
BASED UPON PROCEDURAL GROUNDS, TO THE ASSISTANT SECRETARY. IN VIEW OF
MY DECISION AND ORDER HEREIN, I CONSIDER IT UNNECESSARY TO PASS UPON
SUCH MOTION.
WITH RESPECT TO THE QUESTION RAISED BY THE INTERVENOR RELATING TO
SECTION 20 OF THE EXECUTIVE ORDER AND ITS APPLICATION TO THE APPEARANCE
OF WITNESSES AT THE HEARING, A REPRESENTATION PROCEEDING WAS NOT
CONSIDERED TO BE THE APPROPRIATE FORM FOR THE DISPOSITION OF SUCH AN
ISSUE.
/5/ IT IS APPARENT THAT THE SHORT PERIOD DURING WHICH THE NFFE HELD
FORMAL RECOGNITION IN THE MOBILE UNIT DOES NOT CONSTITUTE A TRULY
MEANINGFUL BARGAINING HISTORY. ALSO IMMATERIAL IS THE EXCLUSIVE
RECOGNITION HELD BY THE AFGE AT DCASO, HUNTSVILLE SINCE 1966. IN THIS
LATTER REGARD, THE ONLY EVIDENCE RELATING TO THAT UNIT REVEALS THAT THE
HUNTSVILLE-BASED EMPLOYEES CONSTITUTE A SEPARATE OFFICE, HEADED BY AN
ADMINISTRATIVE CHIEF.
1 A/SLMR 22; P. 133; CASE NOS. 41-1721, 41-1731 AND 1732; APRIL 5,
1971.
THE VETERANS ADMINISTRATION HOSPITAL,
LEXINGTON, KENTUCKY
A/SLMR NO. 22
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 302, AFL-CIO
(AFGE) SOUGHT TO REPRESENT AN "ALL PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEE" UNIT OF THE ACTIVITY, WITH THE MATTER OF THE INCLUSION OF
PROFESSIONAL CLASSIFICATIONS WITH NONPROFESSIONALS TO BE RESOLVED BY A
SELF-DETERMINATION ELECTION. KENTUCKY NURSES' ASSOCIATION AFFILIATED
WITH THE AMERICAN NURSES' ASSOCIATION (KNA) SOUGHT A SEPARATE UNIT OF
"ALL REGISTERED NURSES." THE ACTIVITY DID NOT CONTEST THE
APPROPRIATENESS OF ANY UNIT SOUGHT, BUT IN OPPOSITION TO THE KNA'S
CLAIM, SOUGHT THE EXCLUSION OF NURSE COORDINATORS (HEAD NURSES) AS
SUPERVISORS WITHIN THE MEANING OF THE ORDER.
WITH RESPECT TO THE APPROPRIATENESS OF THE UNIT SOUGHT BY THE AFGE,
THE ASSISTANT SECRETARY FOUND THAT AN ACTIVITY-WIDE UNIT WAS APPROPRIATE
FOR EXCLUSIVE RECOGNITION AND THAT PROFESSIONAL EMPLOYEES WOULD BE
ACCORDED A SELF-DETERMINATION ELECTION BEFORE BEING INCLUDED IN A UNIT
WITH NONPROFESSIONALS.
AS TO THE APPROPRIATENESS OF A SEPARATE UNIT OF ALL REGISTERED
NURSES, THE ASSISTANT SECRETARY NOTED THAT ALL STAFF NURSES PERFORM
ESSENTIALLY THE SAME FUNCTIONS, HAVE A SUPERVISORY STRUCTURE APART FROM
OTHER PROFESSIONALS, HAVE SPECIFIC EDUCATIONAL AND TRAINING
REQUIREMENTS, DO NOT INTERCHANGE WITH OTHER CLASSIFICATIONS AND WORK
UNDER SEPARATE CIVIL SERVICE REGULATIONS AND SALARY SCHEDULE FROM
PROFESSIONALS OTHER THAN DOCTORS AND DENTISTS. IT WAS CONCLUDED THAT
THE NURSES CONSTITUTE A FUNCTIONALLY DISTINCT GROUP WITH A CLEAR
IDENTIFIABLE COMMUNITY OF INTEREST AND, THEREFORE, WOULD BE A UNIT
APPROPRIATE FOR EXCLUSIVE RECOGNITION. ACCORDINGLY, THE NURSES WERE
GIVEN THE CHOICE OF WHETHER THEY WISHED TO BE REPRESENTED BY THE KNA IN
A SEPARATE UNIT OR BY THE AFGE IN A UNIT WITH OTHER PROFESSIONALS, OR BY
THE AFGE IN AN ACTIVITY-WIDE UNIT.
WITH RESPECT TO THE NURSE COORDINATORS (HEAD NURSES), THE ASSISTANT
SECRETARY FOUND THAT THEY WERE "SUPERVISORS" WITHIN THE MEANING OF
EXECUTIVE ORDER 11491 AND AS SUCH SHOULD BE EXCLUDED FROM ALL UNITS.
THEY RESPONSIBLY DIRECT THE WORK OF STAFF NURSES, LICENSED PRACTICAL
NURSES AND NURSING ASSISTANTS WORKING UNDER THEM, ASSIGN PERSONNEL TO
TOURS OF DUTY AND SPECIFIC WORK ASSIGNMENTS, EVALUATE THE PERFORMANCE OF
PERSONNEL WORKING UNDER THEIR DIRECTION AND INDEPENDENTLY APPROVE LEAVE
REQUESTS. THE ASSISTANT SECRETARY NOTED THAT IN THE EXERCISE OF THESE
FUNCTIONS THE NURSE COORDINATORS EXERCISE INDEPENDENT JUDGEMENT,
PARTICULARLY IN THE AREAS OF EMPLOYEE EVALUATION AND WORK ASSIGNMENTS.
NURSE CLINICIANS IN THE OPERATING ROOM AND OUTPATIENT FACILITY WHO
PERFORM ESSENTIALLY THE SAME DUTIES AS DO NURSE COORDINATORS IN THE
HOSPITAL UNITS WERE LIKEWISE EXCLUDED AS SUPERVISORS, ALTHOUGH OTHER
NURSE CLINICIANS WERE INCLUDED IN THE UNIT.
VETERANS ADMINISTRATION, VETERANS
ADMINISTRATION HOSPITAL, LEXINGTON,
KENTUCKY
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 302, AFL-CIO /1/
VETERANS ADMINISTRATION, VETERANS
ADMINISTRATION HOSPITAL, LEXINGTON,
KENTUCKY
AND
KENTUCKY NURSES' ASSOCIATION, A/W
AMERICAN NURSES' ASSOCIATION
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER SEYMOUR X. ALSHER.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING BRIEFS FILED BY ALL
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. IN CASE NO. 41-1721, PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 302, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN
ELECTION IN A UNIT OF:
ALL NONSUPERVISORY, NONMANAGERIAL EMPLOYEES OF THE VETERANS
ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING ALL GUARDS,
SUPERVISORS, AND MANAGERIAL EMPLOYEES AND PERSONNEL EMPLOYEES WHO ARE
EMPLOYED IN OTHER THAN A PURELY CLERICAL CAPACITY, OF THE VETERANS
ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY.
THE RECORD REVEALS THAT THE AFGE SEEKS TO REPRESENT BOTH PROFESSIONAL
AND NONPROFESSIONAL EMPLOYEES, WITH THE QUESTION OF WHETHER THE
PROFESSIONAL EMPLOYEES ARE TO BE INCLUDED IN A UNIT WITH
NONPROFESSIONALS TO BE RESOLVED BY A SELF-DETERMINATION ELECTION AS
REQUIRED BY SECTION 10(B)(4) OF THE EXECUTIVE ORDER.
IN CASE NOS. 41-1731 AND 1732 /2/ PETITIONER, KENTUCKY NURSES'
ASSOCIATION,AFFILIATED WITH THE AMERICAN NURSES' ASSOCIATION, HEREIN
CALLED KNA, SEEKS AN ELECTION IN EITHER A UNIT OF:
ALL REGISTERED NURSES EMPLOYED AT THE VETERANS ADMINISTRATION
HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING CHIEF NURSES, ASSOCIATE CHIEF
NURSE, ASSISTANT CHIEF NURSE, HEAD NURSES, AND SUPERVISORS WITHIN THE
MEANING OF THE ORDER, MANAGEMENT OFFICIALS, GUARDS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, ALL
OTHER PROFESSIONAL EMPLOYEES AND ALL NONPROFESSIONAL EMPLOYEES.
OR ALTERNATIVELY:
ALL REGISTERED NURSES EMPLOYED AT THE VETERAN ADMINISTRATION
HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING CHIEF NURSE, ASSOCIATE CHIEF
NURSE, ASSISTANT CHIEF NURSE, AND SUPERVISORS WITHIN THE MEANING OF THE
ORDER, MANAGEMENT OFFICIALS, GUARDS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, ALL OTHER
PROFESSIONAL EMPLOYEES AND ALL NONPROFESSIONAL EMPLOYEES. /3/
AFGE CONTENDS THAT SEVERANCE OF THE REGISTERED NURSES FROM A UNIT OF
OTHER PROFESSIONAL EMPLOYEES WOULD BE INAPPROPRIATE BECAUSE OF A CLOSE
COMMUNITY OF INTEREST BETWEEN REGISTERED NURSES AND OTHER EMPLOYEES IN
THE UNIT SOUGHT BY THE AFGE.
THE ACTIVITY DOES NOT CONTEST THE APPROPRIATENESS OF ANY OF THE ABOVE
DESCRIBED UNIT POSITIONS TAKEN BY THE PETITIONERS EXCEPT THAT IT
CONTENDS THAT NURSE COORDINATORS (HEAD NURSES) AND NURSE CLINICIANS IN
THE OPERATING ROOM AND OUTPATIENT FACILITY ARE SUPERVISORS WITHIN THE
DEFINITION CONTAINED IN THE EXECUTIVE ORDER AND SHOULD BE EXCLUDED FROM
ANY UNIT DETERMINED TO BE APPROPRIATE.
APART FROM THE KNA'S CONTENTION THAT REGISTERED NURSES SHOULD BE
PERMITTED SEPARATE REPRESENTATION FROM OTHER EMPLOYEES, NO PARTY
CONTESTS THE APPROPRIATENESS OF THE UNIT PETITIONED FOR BY THE AFGE, AND
THERE IS NO EVIDENCE THAT IT IS CONTRARY TO THE PROVISIONS OF THE
EXECUTIVE ORDER. THUS, THE UNIT SOUGHT BY THE AFGE MAY BE AN
APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
AS NOTED ABOVE, THE ACTIVITY'S EMPLOYEE COMPLEMENT INCLUDES BOTH
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES. THE ACTIVITY AND THE AFGE
CONTEND THAT WITHIN THE ENTIRE FACILITY THERE ARE 20 JOB
CLASSIFICATIONS, INCLUDING NURSES, THAT HAVE PROFESSIONAL STATUS. /4/
ALTHOUGH I AM MAKING NO FINDINGS OF FACT AS TO THE POSSIBLE PROFESSIONAL
STATUS OF ALL OF THE CLASSIFICATIONS AT THE FACILITY, /5/ UNDER THE
ORDER PERSONS HAVING PROFESSIONAL STATUS MUST BE ACCORDED A
SELF-DETERMINATION ELECTION BEFORE BEING INCLUDED IN A UNIT WITH
NONPROFESSIONALS.
THE VETERANS ADMINISTRATION HOSPITAL FACILITY CONSISTS OF
APPROXIMATELY 42 BUILDINGS, ONLY A SMALL NUMBER OF WHICH ARE USED TO
HOUSE PATIENTS. THE TOTAL EMPLOYEE COMPLEMENT IS APPROXIMATELY 725.
OVERALL DIRECTION OF THE FACILITY IS VESTED IN THE HOSPITAL DIRECTOR,
WHO HAS UNDER HIM THE ASSISTANT HOSPITAL DIRECTOR, WITH PRIMARY
RESPONSIBILITY FOR ADMINISTRATIVE FUNCTIONS, AND THE CHIEF OF STAFF, WHO
EXERCISES OVERALL DIRECTION OF ALL EMPLOYEES ENGAGED IN FUNCTIONS
SPECIFICALLY RELATED TO PATIENT CARE.
IN CONSIDERING THE UNIT OF NURSES SOUGHT BY THE KNA, THE RECORD
REVEALS THAT THE HOSPITAL IS DIVIDED INTO "NURSING UNITS," EACH OF WHICH
COVERS A SECTION OF THE HOSPITAL USUALLY CONSISTING OF BETWEEN 25 AND 90
BEDS. NURSING CARE IS PROVIDED TO EACH "NURSING UNIT" BY A "TEAM"
CONSISTING OF REGISTERED NURSES, LICENSED PRACTICAL NURSES (LPN'S) AND
NURSING ASSISTANTS. THE TEAM IS DIVIDED UP WITHIN THREE SHIFTS SO THAT
THE NURSING UNIT IS COVERED 24 HOURS A DAY. TEAM PERSONNEL ROTATE AMONG
THE THREE SHIFTS. SUPERVISION AND DIRECTION OF ALL STAFF NURSES,
INCLUDING THE CLASSIFICATION NURSE COORDINATOR AND NURSE CLINICIAN, ARE
VESTED IN THE CHIEF, NURSING SERVICE, WHO REPORTS DIRECTLY TO THE CHIEF
OF STAFF. THE CHIEF, NURSING SERVICE, HAS UNDER HER AN ASSISTANT CHIEF,
NURSING SERVICE AND AN ASSOCIATE CHIEF, NURSING SERVICE. SUPERVISION
AND DIRECTION OF ALL STAFF NURSES FLOW FROM THE CHIEF AND ASSISTANT
CHIEF OF THE NURSING SERVICE THROUGH THE NURSE COORDINATORS.
ALL STAFF NURSES HAVE THE SAME CONDITIONS OF EMPLOYMENT AND ARE
GOVERNED BY THE SAME SALARY SCHEDULE. THERE IS NO INTERCHANGE BETWEEN
NURSES AND OTHER PROFESSIONAL CLASSIFICATIONS IN THE HOSPITAL, ALTHOUGH
THE NATURE OF THE OPERATION OF A HOSPITAL REQUIRES THAT NURSES HAVE
SUBSTANTIAL CONTACT WITH OTHER EMPLOYEES INVOLVED WITH PATIENT CARE.
THERE ARE SPECIFIC EDUCATIONAL AND TRAINING REQUIREMENTS FOR A
REGISTERED NURSE. ALL STAFF NURSES PERFORM ESSENTIALLY THE SAME TYPE OF
DUTIES WHICH ARE DISTINGUISHABLE FROM THOSE OF OTHER PROFESSIONALS.
THERE IS NO INTERCHANGE BETWEEN NURSES AND OTHER PROFESSIONAL
CLASSIFICATIONS. NURSES WORK UNDER SEPARATE CIVIL SERVICE REGULATIONS
AND SALARY SCHEDULES FROM PROFESSIONALS OTHER THAN DOCTORS AND DENTISTS.
BASED ON THE FOREGOING, THE EVIDENCE ESTABLISHES THAT STAFF NURSES HAVE
A SUFFICIENTLY SEPARATE COMMUNITY OF INTEREST APART FROM OTHER
PROFESSIONAL EMPLOYEES SO THAT A UNIT OF ALL STAFF NURSES MAY BE
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. /6/ IN THIS
CONNECTION I REJECT THE AFGE'S CONTENTION THAT NURSES CANNOT BE SEVERED
FROM A UNIT OF OTHER PROFESSIONAL EMPLOYEES AT THE FACILITY. THE
GROUPING OF EMPLOYEES IN BARGINING UNITS IS BASED, IN PART, ON FACTORS
OF COMMUNITY OF INTEREST. THERE IS NO REQUIREMENT THAT ALL PROFESSIONAL
EMPLOYEES MUST BE GROUPED IN ONE UNIT. /7/
IN THESE CIRCUMSTANCES AND NOTING THE FACT THAT SECTION 10(B) OF THE
ORDER PROVIDES SPECIFICALLY, IN PART, THAT A UNIT MAY BE ESTABLISHED ON
A FUNCTIONAL BASIS, A SELF-DETERMINATION ELECTION IN THE UNIT SOUGHT BY
THE KNA IS WARRANTED SINCE THE EMPLOYEES CONSTITUTE A FUNCTIONALLY
DISTINCT GROUP WITH A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST.
INSUFFICIENT EVIDENCE WAS OFFERED TO ESTABLISH THAT THE UNIT SOUGHT
BY THE KNA WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS WITHIN THE MEANING OF SECTION 10(B) OF EXECUTIVE ORDER 11491.
PARTICULARLY NOTED IN THIS REGARD IS THE ACTIVITY'S STATEMENT ON THE
RECORD THAT THERE ARE SEPARATE UNITS OF STAFF NURSES AT VARIOUS VETERANS
ADMINISTRATION HOSPITALS IN THE UNITED STATES AND, ON THE BASIS OF THAT
EXPERIENCE, THE ACTIVITY FELT THAT THE EFFICIENCY OF ITS OPERATION WOULD
NOT BE IMPAIRED BY THE FINDING OF A SEPARATE UNIT LIMITED TO NURSES.
/8/
AS NOTED ABOVE, THE ACTIVITY AND THE AFGE CONTEND THAT NURSE
COORDINATORS, OR HEAD NURSES, ARE SUPERVISORS WITHIN THE MEANING OF THE
ORDER WHILE THE KNA SEEKS THEIR INCLUSION IN THE UNIT. /9/ PERSONS
CLASSIFIED AS NURSE COORDINATORS WORK DIRECTLY UNDER THE CHIEF AND
ASSISTANT CHIEF OF THE NURSING SERVICE. IT IS THE FUNCTION OF THE NURSE
COORDINATOR TO DIRECT THE EFFORTS OF A NURSING TEAM MADE UP OF OTHER
REGISTERED NURSES, LICENSED PRACTICAL NURSES (LPN'S) AND NURSING
ASSISTANTS OVER A THREE SHIFT OPERATION. WHILE THE NURSE COORDINATOR
WORKS ONLY ONE SHIFT EACH 24 HOURS, USUALLY THE DAY SHIFT, HER
RESPONSIBILITY IS FOR THE ENTIRE 24 HOUR PERIOD AND, WHEN SHE IS
OFF-SHIFT, THE NURSE COORDINATOR APPOINTS ANOTHER REGISTERED NURSE TO
ACT IN HER BEHALF.
THE RECORD ALSO REFLECTS THAT THE NURSE COORDINATOR IS FULLY
RESPONSIBLE FOR HER UNIT. SHE ASSIGNS PERSONNEL WITHIN THE UNIT TO A
WORK SCHEDULE AND MAKES PATIENT CARE ASSIGNMENTS, ALTHOUGH IT IS
ESTIMATED THAT NURSE COORDINATORS THEMSELVES MAY SPEND AS MUCH AS 25
PERCENT OF THEIR TIME DIRECTLY ENGAGED IN PATIENT CARE. WHILE A NURSE
COORDINATOR NORMALLY WORKS THE DAY SHIFT, AT HER DISCRETION SHE MAY
VISIT THE HOSPITAL AT ANY TIME FOR SUCH PURPOSES AS CHECKING ON THE
OPERATION OF HER UNIT OR FILLING IN FOR AN ABSENT REGISTERED NURSE. ALL
OTHER REGISTERED NURSES ROTATE THROUGH THE THREE DAILY SHIFTS. THE
NURSE COORDINATORS GRANT TIME OFF AND APPROVE VACATION SCHEDULING. THEY
HAVE THE AUTHORITY TO INITIATE SUCH PERSONNEL ACTIONS AS DISCHARGE,
REWARD, DISCIPLINE AND PROMOTION BECAUSE THEY ARE THE RATING OFFICIALS
FOR LPN'S, NURSING ASSISTANTS AND REGISTERED NURSES. /10/ FURTHER,
NURSE COORDINATORS ARE MEMBERS OF THE PROFESSIONAL STANDARDS BOARD,
WHICH JUDGES THE PROFESSIONAL QUALIFICATION OF NURSES, WHEREAS OTHER
REGISTERED NURSES DO NOT SERVE AS MEMBERS OF THE BOARD.
NURSE COORDINATORS MEET TWICE A MONTH WITH THE CHIEF OF THE NURSING
SERVICE AT WHICH TIME VARIOUS ADMINISTRATIVE MATTERS ARE DISCUSSED. THE
ANNUAL EVALUATION FOR NURSE COORDINATORS CONTAIN A RATING IN THE AREA OF
SUPERVISORY ABILITY, ADMINISTRATIVE JUDGMENT AND DECISION MAKING
ABILITY.
BASED ON THE FOREGOING, I FIND THAT NURSE COORDINATORS ARE
"SUPERVISORS" WITHIN THE MEANING OF THE ORDER INASMUCH AS THEY MAKE BOTH
SHIFT ASSIGNMENTS AND, MORE IMPORTANTLY, WORK ASSIGNMENTS TO PERSONS IN
THEIR UNIT; APPROVE LEAVE REQUESTS; AND ARE THE SOLE EVALUATORS OF
LPN'S AND NURSING ASSISTANTS; AND PERFORM FIRST LEVEL EVALUATION ON ALL
REGISTERED NURSES WORKING UNDER THEIR DIRECTION. ACCORDINGLY, I FIND
THAT NURSE COORDINATORS SHOULD BE EXCLUDED FROM ANY UNIT FOUND
APPROPRIATE FOR EXCLUSIVE RECOGNITION. /11/ AS IT IS UNDISPUTED THAT
THE NURSES CLINICIANS ASSIGNED TO THE "OPERATING ROOM" AND "OUTPATIENT
FACILITY" PERFORM THE SAME FUNCTIONS AND HAVE THE SAME RESPONSIBILITIES
IN THEIR AREAS AS DO THE NURSE COORDINATORS, I FIND THAT THEY ALSO
SHOULD BE EXCLUDED FROM ANY BELOW DESCRIBED UNIT FOUND APPROPRIATE FOR
EXCLUSIVE RECOGNITION.
HAVING FOUND THAT THE NONSUPERVISORY EMPLOYEE PETITIONED FOR BY THE
KNA, IF THEY SO DESIRE, MAY CONSTITUTE A SEPARATE APPROPRIATE UNIT, I
SHALL NOT MAKE ANY FINAL UNIT DETERMINATION AT THIS TIME, BUT SHALL
FIRST ASCERTAIN THE DESIRES OF THE EMPLOYEES BY DIRECTING AN ELECTION IN
THE FOLLOWING GROUP:
VOTING GROUP (A): ALL REGISTERED NURSES EMPLOYED AT THE VETERANS
ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING CHIEF NURSE,
ASSOCIATE CHIEF NURSE, ASSISTANT CHIEF NURSE, NURSE COORDINATORS (HEAD
NURSES), NURSE CLINICIANS IN OPERATING ROOM AND OUTPATIENT FACILITY,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND OTHER SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
I FIND FURTHER THAT THE ACTIVITY-WIDE UNIT OF NONSUPERVISORY
EMPLOYEES SOUGHT BY THE AFGE MAY CONSTITUTE A UNIT APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491. THIS UNIT
FOUND APPROPRIATE INCLUDES PROFESSIONAL EMPLOYEES. HOWEVER, THE
ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10(B)(4) OF THE ORDER FROM
INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH NONPROFESSIONAL
EMPLOYEES UNLESS A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTE FOR
INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES OF THE PROFESSIONAL
EMPLOYEES AS TO INCLUSION IN A UNIT WITH NONPROFESSIONAL EMPLOYEES MUST
BE ASCERTAINED. I SHALL, THEREFORE, DIRECT THAT SEPARATE ELECTIONS BE
CONDUCTED IN THE FOLLOWING GROUPS:
VOTING GROUP (B): ALL PROFESSIONAL EMPLOYEES OF THE VETERANS
ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING ALL EMPLOYEES
VOTING IN GROUP (A), ALL NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
VOTING GROUP (C): ALL EMPLOYEES OF THE VETERANS ADMINISTRATION
HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING ALL PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
THE EMPLOYEES IN PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOT: (1) WHETHER THEY WISH TO BE REPRESENTED FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE KNA, THE AFGE OR NEITHER AND
(2) WHETHER OR NOT THEY WISH TO BE INCLUDED WITH THE NONPROFESSIONAL
EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IF IN RESPONSE TO
QUESTION (1) A MAJORITY OF THE EMPLOYEES IN VOTING GROUP (A) SELECT THE
UNION (KNA) SEEKING TO REPRESENT THEM SEPARATELY, THEY WILL BE TAKEN TO
HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE APPROPRIATE UNIT
AND THE AREA ADMINISTRATOR SUPERVISING THE ELECTION IS INSTRUCTED TO
ISSUE A CERTIFICATE OF REPRESENTATIVE TO THE LABOR ORGANIZATION (KNA)
SEEKING TO REPRESENT THEM SEPARATELY. HOWEVER, IF A MAJORITY OF THE
EMPLOYEES VOTING IN GROUP (A) DO NOT VOTE FOR THE UNION (KNA) WHICH IS
SEEKING TO REPRESENT THEM SEPARATELY, AN APPROPRIATE CERTIFICATION OF
RESULTS OF THE FIRST VOTE SHALL BE ISSUED TO THE KNA AND THE BALLOTS OF
THE EMPLOYEES IN VOTING GROUP (A) WILL BE POOLED WITH THOSE OF THE
EMPLOYEES IN VOTING GROUP (B).
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (B) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOT: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE AFGE. /12/
IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (B),
INCLUDING ANY VOTES POOLED FROM VOTING GROUP (A), ARE CAST AGAINST
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING WHETHER OR NOT
THE AFGE WAS SELECTED AS THE EXCLUSIVE REPRESENTATIVE FOR THE
PROFESSIONAL EMPLOYEE UNIT. /13/ THE BALLOTS OF VOTING GROUP (C) WILL
THEN BE COUNTED AND AN APPROPRIATE CERTIFICATION WILL BE ISSUED
INDICATING WHETHER OR NOT THE AFGE HAS BEEN SELECTED AS THE EXCLUSIVE
REPRESENTATIVE FOR THE NONPROFESSIONAL UNIT. IN THE EVENT THAT A
MAJORITY OF THE VALID VOTES OF VOTING GROUP (B) ARE CAST IN FAVOR OF
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF
VOTING GROUP (B) SHALL BE COMBINED WITH THOSE OF VOTING GROUP (C) AND
COUNTED AND THE RESULTS CERTIFIED. /14/
THE UNIT DETERMINATIONS IN THE SUBJECT CONSOLIDATED CASES ARE BASED,
IN PART, THEN, UPON THE RESULTS OF ELECTIONS AMONG REGISTERED NURSES AND
AMONG THE OTHER PROFESSIONAL EMPLOYEES. HOWEVER, I WILL NOW MAKE THE
FOLLOWING FINDINGS IN REGARD TO THE APPROPRIATE UNIT:
1. IF A MAJORITY OF THE REGISTERED NURSES VOTE FOR REPRESENTATION BY
THE UNION (KNA) SEEKING TO REPRESENT THEM SEPARATELY, I FIND THE
FOLLOWING UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL REGISTERED NURSES EMPLOYED AT THE VETERANS ADMINISTRATION
HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING CHIEF NURSE, ASSOCIATE CHIEF
NURSE, ASSISTANT CHIEF NURSE, NURSE COORDINATORS (HEAD NURSES), NURSE
CLINICIANS IN OPERATING ROOM AND OUTPATIENT FACILITY, EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND OTHER SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER. /15/
2. IF A MAJORITY OF THE REGISTERED NURSES VOTE FOR REPRESENTATION BY
THE UNION (KNA) SEEKING TO REPRESENT THEM SEPARATELY AND IF A MAJORITY
OF THE OTHER PROFESSIONAL EMPLOYEES DO NOT VOTE FOR INCLUSION IN THE
SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THE FOLLOWING UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL PROFESSIONAL EMPLOYEES OF THE VETERANS ADMINISTRATION
HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING CHIEF NURSE, ASSOCIATE CHIEF
NURSE, ASSISTANT CHIEF NURSE, NURSE COORDINATORS (HEAD NURSES), NURSE
CLINICIANS IN OPERATING ROOM AND OUTPATIENT FACILITY, ALL REGISTERED
NURSES, ALL NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, AND OTHER SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
(B) ALL EMPLOYEES OF THE VETERANS ADMINISTRATION HOSPITAL, LEXINGTON,
KENTUCKY, EXCLUDING CHIEF NURSE, ASSOCIATE CHIEF NURSE, ASSISTANT CHIEF
NURSE, NURSE COORDINATORS (HEAD NURSES), NURSE CLINICIANS IN OPERATING
ROOM AND OUTPATIENT FACILITY, ALL PROFESSIONAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND OTHER SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
3. IF A MAJORITY OF THE REGISTERED NURSES VOTE FOR REPRESENTATION BY
THE UNION (KNA) SEEKING TO REPRESENT THEM SEPARATELY, AND IF A MAJORITY
OF THE PROFESSIONAL EMPLOYEES, EXCLUDING NURSES, VOTES FOR INCLUSION IN
THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THE FOLLOWING
UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE
MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE VETERANS
ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING CHIEF NURSE,
ASSOCIATE CHIEF NURSE, ASSISTANT CHIEF NURSE, NURSE COORDINATORS (HEAD
NURSES), NURSE CLINICIANS IN OPERATING ROOM AND OUTPATIENT FACILITY, ALL
REGISTERED NURSES, ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND OTHER
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
4. IF A MAJORITY OF THE REGISTERED NURSES VOTE AGAINST
REPRESENTATION BY THE UNION (KNA) SEEKING TO REPRESENT THEM SEPARATELY
AND IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES, INCLUDING NURSES, DO
NOT VOTE FOR INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL
EMPLOYEES, I FIND THE FOLLOWING UNITS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION WITH THE MEANING OF SECTION 10 OF THE ORDER:
(A) ALL PROFESSIONAL EMPLOYEES OF THE VETERANS ADMINISTRATION
HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING CHIEF NURSE, ASSOCIATE CHIEF
NURSE, ASSISTANT CHIEF NURSE, NURSE COORDINATORS (HEAD NURSES), NURSE
CLINICIANS IN OPERATING ROOM AND OUTPATIENT FACILITY, ALL
NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
OTHER SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
(B) ALL EMPLOYEES OF THE VETERANS ADMINISTRATION HOSPITAL, LEXINGTON,
KENTUCKY, EXCLUDING CHIEF NURSE, ASSOCIATE CHIEF NURSE, ASSISTANT CHIEF
NURSE, NURSE COORDINATORS (HEAD NURSES), NURSE CLINICIANS IN OPERATING
ROOMS AND OUTPATIENT FACILITY, ALL PROFESSIONAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND OTHER SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
5. IN A MAJORITY OF THE REGISTERED NURSE VOTE AGAINST REPRESENTATION
BY THE UNION (KNA) SEEKING TO REPRESENT THEM SEPARATELY AND IF A
MAJORITY OF THE PROFESSIONAL EMPLOYEES, INCLUDING NURSES, VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THE
FOLLOWING UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE VETERANS
ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY, EXCLUDING CHIEF NURSE,
ASSOCIATE CHIEF NURSE, ASSISTANT CHIEF NURSE, NURSE COORDINATORS (HEAD
NURSES), NURSE CLINICIANS IN OPERATING ROOM AND OUTPATIENT FACILITY ALL
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND OTHER SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 41-1732 BE,
AND IT HEREBY IS, DISMISSED.
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN
THE VOTING GROUPS DESCRIBED ABOVE, AS EARLY AS POSSIBLE, BUT NOT LATER
THAN 30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR
SHALL SUPERVISE THE ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE FOR THOSE IN THE VOTING GROUPS WHO WERE
EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PROCEEDING THE DATE
BELOW, INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD, BECAUSE
THEY WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE IN VOTING GROUP (A) SHALL VOTE WHETHER
THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
BY THE KENTUCKY NURSES' ASSOCIATION AFFILIATED WITH THE AMERICAN NURSES'
ASSOCIATION; OR BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 302, AFL-CIO; OR BY NEITHER. THOSE ELIGIBLE IN VOTING GROUPS (B)
AND (C) SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 302, AFL-CIO.
DATED, WASHINGTON, D.C.
APRIL 5,1971
/1/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/2/ THE PETITIONER'S CLAIMED UNITS APPEAR AS AMENDED AT THE HEARING.
/3/ THE PETITION IN CASE NO. 41-1731(RO) AND 41-1732(RO) DIFFER ONLY
WITH RESPECT TO THE ELIGIBILITY STATUS OF THE CLASSIFICATION "HEAD
NURSES," AND WERE FILED IN SUCH MANNER SO AS TO REFLECT THE KNA'S DESIRE
TO HAVE AN ELECTION IN THE ABOVE-DESCRIBED UNIT WHETHER OR NOT HEAD
NURSES WERE INCLUDED IN THE UNIT FOUND APPROPRIATE.
/4/ THE AFGE AGREED ON THE RECORD TO ADOPT THE ACTIVITY'S
CLASSIFICATION OF EMPLOYEES AS TO THEIR PROFESSIONAL AND NONPROFESSIONAL
STATUS. THE KNA DECLINED TO JOIN IN THE STIPULATION CONCERNING THE
PROFESSIONAL STATUS OF CERTAIN CLASSIFICATIONS, ALTHOUGH IT DID NOT
TENDER ANY EVIDENCE IN SUPPORT OF ITS POSITION. HOWEVER, THE KNA SEEKS
ONLY TO REPRESENT EMPLOYEES CLASSIFIED AS NURSES AND ALL PARTIES AGREE
THAT NURSES HAVE PROFESSIONAL STATUS.
/5/ SINCE THE RECORD DOES NOT SET FORTH SUFFICIENT FACTS WITH RESPECT
TO SUCH CRITERIA AS DUTIES, TRAINING, EDUCATIONAL BACKGROUND, ETC., TO
PROVIDE A BASIS FOR A FINDING OF FACT THAT PERSONS IN PARTICULAR
CLASSIFICATIONS ARE PROFESSIONAL, I WILL MAKE NO FINDINGS AS TO WHICH
EMPLOYEE CLASSIFICATIONS CONSTITUTE PROFESSIONAL EMPLOYEES.
/6/ INCLUDED IN THE UNIT OF STAFF NURSES ARE THOSE REGISTERED NURSES
WHO HAVE THE TITLE, NURSE CLINICIAN IN THE "MEDICAL AND SURGICAL,"
"PSYCHIATRIC" AND "GERIATRICS." NURSING CLINICIANS IN THE "OPERATING
ROOM" AND "OUTPATIENT FACILITY," AS DISCUSSED BELOW, ARE FOUND TO BE
SUPERVISORS WITHIN THE MEANING OF THE ORDER.
/7/ THERE ARE NUMEROUS EXAMPLES IN THE FEDERAL SECTOR OF HOSPITALS
WHICH CONTAIN UNITS LIMITED TO NURSES. SEE E.G. THE VETERANS
ADMINISTRATION HOSPITAL, AUGUST, A/SLMR NO. 3 AND U.S. SOLDIERS' HOME,
WASHINGTON, D.C., A/SLMR NO. 13.
/8/ AS STATED ABOVE, I HAVE FOUND THAT THE UNIT SOUGHT BY THE AFGE
MAY BE AN APPROPRIATE UNIT. I ALSO FIND THAT THE "ALL EMPLOYEE" OR "ALL
PROFESSIONAL EMPLOYEE" UNITS SOUGHT BY THE AFGE BUT EXCLUDING THOSE
CLASSIFICATIONS SOUGHT BY THE KNA MAY BE APPROPRIATE UNITS.
/9/ THE RECORD CONTAINS THE UNDISPUTED EVIDENCE THAT THE NURSE
CLINICIANS ASSIGNED TO THE OPERATING ROOM AND THE OUTPATIENT FACILITY
PERFORM THE SAME FUNCTIONS AND HAVE THE SAME RESPONSIBILITIES AS DO THE
NURSE COORDINATORS IN THE HOSPITAL UNITS.
/10/ WITH RESPECT TO REGISTERED NURSES, THE ASSISTANT CHIEF IS THE
APPROVING OFFICIALS FOR ALL EVALUATIONS.
/11/ SEE THE VETERAN ADMINISTRATION HOSPITAL, AUGUSTA, CITED ABOVE.
/12/ PETITIONER KNA DOES NOT SEEK TO REPRESENT ANY PROFESSIONAL
CLASSIFICATIONS OTHER THAN THOSE IN VOTING GROUP (A).
/13/ AS THE KNA DOES NOT SEEK TO REPRESENT EMPLOYEES IN VOTING GROUPS
(B) AND (C) IT SHALL NOT HAVE STANDING TO RAISE A CHALLENGE AS TO
ELIGIBILITY WITH RESPECT TO CLASSIFICATIONS IN THOSE GROUPS.
/14/ THE BALLOTS OF PROFESSIONAL VOTING GROUP (A) WILL BE INCLUDED
WITH THOSE OF PROFESSIONAL VOTING GROUP (B) IF A MAJORITY OF THE
EMPLOYEES IN VOTING GROUP (A) DID NOT VOTE FOR THE UNION (KNA) WHICH IS
SEEKING TO REPRESENT THEM SEPARATELY. IF THE VOTES OF VOTING GROUP (A)
AND (B) ARE POOLED WITH THE VOTES OF VOTING GROUP (C), THEY ARE TO BE
TALLIED IN THE FOLLOWING MANNER: THE VOTES FOR THE KNA, THE LABOR
ORGANIZATION SEEKING A SEPARATE UNIT IN GROUP (A), SHALL BE COUNTED AS
PART OF THE TOTAL NUMBER OF VALID VOTES CAST BUT NEITHER FOR NOR AGAINST
THE AFGE, THE LABOR ORGANIZATION SEEKING TO REPRESENT THE ACTIVITY-WIDE
UNIT. ALL OTHER VOTES ARE TO BE ACCORDED THEIR FACE VALUE.
/15/ AS THE REGISTERED NURSE UNIT FOUND APPROPRIATE IS THAT CLAIMED
BY THE KNA IN CASE NO. 41-1731, I SHALL DISMISS KNA'S COMPANION PETITION
IN CASE NO. 41-1732.
1 A/SLMR 21; P. 130; CASE NO. 31-3319E.O.; APRIL 2, 1971.
VETERANS ADMINISTRATION HOSPITAL
BROCKTON, MASSACHUSETTS
A/SLMR NO. 21
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2592 (AFGE). THE
AFGE SOUGHT AN ACTIVITY-WIDE UNIT EXCLUDING, AMONG OTHERS, PROFESSIONAL
EMPLOYEES AND GUARDS, WHICH THE INTERVENOR, THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R1-25 (NAGE), AND THE ACTIVITY AGREED WAS
APPROPRIATE. ONE ISSUE PRESENTED IN THIS CASE WAS WHETHER THE AFGE WAS
DISQUALIFIED FROM PETITIONING FOR THE CLAIMED UNIT BECAUSE ITS PRESIDENT
WAS EMPLOYED AT THE ACTIVITY AS A GUARD. IN THIS RESPECT, THE NAGE AND
THE ACTIVITY ASSERTED THAT A POTENTIAL CONFLICT OF INTEREST EXISTED IF
THE AFGE WAS CERTIFIED IN THE REPRESENTATIVE OF THE NONGUARD EMPLOYEES
IN THE PETITIONED FOR UNIT SINCE ITS PRESIDENT, WHO WAS EMPLOYED AS A
GUARD BY THE ACTIVITY, WOULD BE INVOLVED IN SUCH ACTIVITIES AS
NEGOTIATIONS AND CAMPAIGNING. THE AFGE, ON THE OTHER HAND, ASSERTED
THAT THE ACTIVITY AND THE NAGE WERE IMPROPERLY INVOLVING THEMSELVES IN
THE AFGE'S INTERNAL AFFAIRS IN THIS CASE AND, THAT AN ELECTION SHOULD BE
HELD BECAUSE ALL THE PARTIES AGREED THAT THE UNIT SOUGHT WAS
APPROPRIATE.
THE ASSISTANT SECRETARY NOTED THAT THE AFGE REFUSED TO PERMIT ITS
PRESIDENT, WHO WAS PRESENT AT THE HEARING, TO TESTIFY UPON THE REQUEST
OF THE HEARING OFFICER. THE ASSISTANT SECRETARY FOUND THAT SUCH A LACK
OF COOPERATION BY THE PETITIONING LABOR ORGANIZATION WARRANTED THE
DISMISSAL OF THE PETITION. HE STATED THAT COOPERATION IN THE
INVESTIGATION OF A PETITION BY THE PARTIES INVOLVED AND PARTICULARLY THE
PETITIONER IS OF THE UTMOST IMPORTANCE IN THE ADMINISTRATION OF THE
EXECUTIVE ORDER SINCE, AS POINTED OUT BY THE AFGE IN THIS CASE, THE
ASSISTANT SECRETARY HAS NO SUBPOENA POWERS UNDER THE ORDER.
THE ASSISTANT SECRETARY POINTED OUT THAT SECTION 1(B) OF THE
EXECUTIVE ORDER DID NOT AUTHORIZE EMPLOYEE PARTICIPATION IN THE
MANAGEMENT OF A LABOR ORGANIZATION WHEN THAT PARTICIPATION RESULTED IN A
CONFLICT OF INTEREST WITH THE EMPLOYEE'S OFFICIAL DUTIES. MOREOVER, HE
NOTED THAT SECTIONS 10(B)(3) AND 10(C) OF THE ORDER PRECLUDED GUARDS
FROM BEING INCLUDED IN UNITS WITH NONGUARD EMPLOYEES AND PRECLUDED
GUARDS FROM BEING REPRESENTED BY LABOR ORGANIZATIONS WHICH ADMIT TO
MEMBERSHIP EMPLOYEES OTHER THAN GUARDS. BY READING THE FOREGOING
PROVISIONS IN CONJUNCTION WITH EACH OTHER AND NOTING THE STUDY
COMMITTEE'S REPORT AND RECOMMENDATIONS IN THIS REGARD, THE ASSISTANT
SECRETARY CONCLUDED THAT TO EFFECTUATE THE PURPOSES AND POLICIES OF THE
ORDER, GUARDS SHOULD NOT BE PERMITTED TO PARTICIPATE IN THE MANAGEMENT
OF NONGUARD LABOR ORGANIZATIONS.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, THE ASSISTANT SECRETARY
CONCLUDED THAT THE AFGE'S PETITION SHOULD BE DISMISSED.
VETERANS ADMINISTRATION HOSPITAL
BROCKTON, MASSACHUSETTS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2592
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL RI-25
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER ANTHONY D. WOLLASTON. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PETITIONER'S
BRIEF, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. FOR THE REASONS DISCUSSED BELOW, NO QUESTION CONCERNING THE
REPRESENTATION OF CERTAIN EMPLOYEES OF THE ACTIVITY EXISTS WITHIN THE
MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491.
3. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2952, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL EMPLOYEES
OF THE VETERANS ADMINISTRATION HOSPITAL, BROCKTON, MASSACHUSETTS,
EXCLUDING AMONG OTHERS, ALL PROFESSIONAL EMPLOYEES AND GUARDS. THE
ACTIVITY, THE AFGE, AND THE INTERVENOR, THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL RI-25, HEREIN CALLED NAGE, AGREE THAT THE
UNIT SOUGHT IS APPROPRIATE. HOWEVER, THE ACTIVITY AND THE NAGE CONTEND
THAT THE AFGE'S PETITION SHOULD BE DISMISSED BECAUSE THE CURRENT
PRESIDENT OF AFGE, LOCAL 2592 IS EMPLOYED BY THE ACTIVITY AS A GUARD.
THE ACTIVITY AND THE NAGE ASSERT THAT IT WOULD NOT BE CONSISTENT WITH
THE PURPOSES AND POLICIES OF THE ORDER TO CERTIFY A LABOR ORGANIZATION
WHOSE PRESIDENT IS A GUARD BECAUSE THIS WOULD CREATE NECESSARILY A
CONFLICT OF INTEREST SINCE, IN HIS CAPACITY AS UNION PRESIDENT, HE WOULD
BE INVOLVED IN SUCH ACTIVITIES AS NEGOTIATIONS AND CAMPAIGNING. THE
AFGE CONTENDS THAT THE ACTIVITY AND THE NAGE ARE IMPROPERLY INVOLVING
THEMSELVES IN THE AFGE'S INTERNAL AFFAIRS BY THEIR POSITION IN THIS
CASE. THE AFGE TAKES THE POSITION THAT AN ELECTION SHOULD BE HELD
BECAUSE ALL THE PARTIES AGREE THAT THE UNIT SOUGHT IS APPROPRIATE.
THE VETERANS ADMINISTRATION HOSPITAL IN BROCKTON, MASSACHUSETTS
EMPLOYS APPROXIMATELY 770 EMPLOYEES IN CLASSIFICATIONS COVERED BY THE
PETITIONED FOR UNIT. UNDER EXECUTIVE ORDER 10988, THE NAGE WAS GRANTED
EXCLUSIVE RECOGNITION BY THE ACTIVITY FOR AN INSTALLATION-WIDE UNIT
EXCLUDING PROFESSIONALS. SEVERAL AGREEMENTS BETWEEN THE PARTIES WERE
EXECUTED DURING THE PERIOD OF /1/ EXCLUSIVE RECOGNITION.
MR. FORTUNATO GRACA, WHO HAS BEEN PRESIDENT OF THE AFGE'S LOCAL
INVOLVED IN THIS PROCEEDING FOR SEVERAL YEARS, WAS EMPLOYED INITIALLY BY
THE ACTIVITY IN NURSING SERVICES. ON JUNE 18, 1967, GRACA WAS
REASSIGNED TO A GUARD CLASSIFICATION, WHICH POSITION HE HOLDS CURRENTLY.
THE EVIDENCE ESTABLISHES THAT, AS A GUARD, GRACA IS RESPONSIBLE FOR
MAINTAINING LAW AND ORDER AT THE FACILITY AND FOR ENFORCING ITS RULES
AND REGULATIONS.
THE PARTIES DO NOT DISPUTE THE FACT THAT GRACA IS A GUARD WITHIN THE
MEANING OF SECTION 2(D) OF THE ORDER. AT THE HEARING, THE NAGE
ATTEMPTED TO CALL GRACA AS A WITNESS. ALTHOUGH HE WAS PRESENT IN THE
HEARING ROOM, THE AFGE'S REPRESENTATIVE INSTRUCTED GRACA NOT TO APPEAR
AS A WITNESS BASED ON THE VIEW THAT HIS TESTIMONY "WOULD HAVE NO
PARTICULAR RELEVANCE." DESPITE THE HEARING OFFICER'S ASSURANCE THAT HE
WOULD DETERMINE THE RELEVANCE OF THE QUESTIONS POSED TO GRACA AND HIS
REQUEST THAT GRACA APPEAR AS A WITNESS IN THIS MATTER, THE AFGE
CONTINUED TO REFUSE TO PERMIT HIM TO /2/ TESTIFY. IN THIS RESPECT, THE
AFGE CONTENDED THAT UNDER THE ASSISTANT SECRETARY'S REGULATIONS, A
HEARING OFFICER DID NOT HAVE THE AUTHORITY TO INSIST THAT A WITNESS
APPEAR SINCE UNDER THE ORDER HE DID NOT HAVE THE AUTHORITY TO SUBPOENA A
WITNESS.
WHERE, AS HERE, A PETITIONING LABOR ORGANIZATION REFUSES, UPON THE
REQUEST OF A HEARING OFFICER, TO SUPPLY A WITNESS WHO IS PRESENT AT THE
HEARING, I FIND THAT SUCH A LACK OF COOPERATION WARRANTS THE DISMISSAL
OF THE PETITIONER'S PETITION. COOPERATION IN THE INVESTIGATION OF A
PETITION BY THE PARTIES INVOLVED, AND PARTICULARLY THE PETITIONER, IS OF
UTMOST IMPORTANCE IN THE ADMINISTRATION OF THE EXECUTIVE ORDER SINCE, AS
POINTED OUT BY THE AFGE IN THIS CASE, THE ASSISTANT SECRETARY HAS NO
SUBPOENA POWERS UNDER THE ORDER. ACCORDINGLY, I HAVE DETERMINED THAT IT
WOULD BEST EFFECTUATE THE POLICIES OF THE ORDER AND WOULD PROMOTE THE
PROMPT HANDLING OF CASES, TO DISMISS A PETITION IN CIRCUMSTANCES WHERE A
PETITIONER REFUSES TO COOPERATE IN THE PROCESSING OF HIS PETITION.
AS STATED ABOVE, THE ISSUE RAISED BY THE ACTIVITY AND THE NAGE IN
THIS MATTER WAS THE QUESTION WHETHER THE AFGE WAS DISQUALIFIED UNDER THE
ORDER FROM PETITIONING FOR THE CLAIMED UNIT BECAUSE ITS PRESIDENT WAS
EMPLOYED CURRENTLY BY THE ACTIVITY AS A GUARD.
SECTION 1(B) OF EXECUTIVE ORDER 11491 PROVIDES, IN PART, THAT SECTION
1(A) OF THE ORDER DOES NOT AUTHORIZE PARTICIPATION IN THE MANAGEMENT OF
A LABOR ORGANIZATION BY AN EMPLOYEE "WHEN THE PARTICIPATION OR ACTIVITY
WOULD RESULT IN A CONFLICT OR APPARENT CONFLICT OF INTEREST OR OTHERWISE
BE INCOMPATIBLE WITH LAW OR WITH THE OFFICIAL DUTIES OF THE EMPLOYEE."
FURTHER, SECTION 2(D) OF THE ORDER DEFINES A GUARD AS "AN EMPLOYEE
ASSIGNED TO ENFORCE AGAINST EMPLOYEES AND OTHER PERSONS RULES TO PROTECT
AGENCY PROPERTY OR THE SAFETY OF PERSONS ON AGENCY PREMISES OR TO
MAINTAIN LAW AND ORDER IN AREAS OR FACILITIES UNDER GOVERNMENT CONTROL."
THE STUDY COMMITTEE'S REPORT AND RECOMMENDATIONS ON LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE, WHICH PRECEDED THE ISSUANCE OF
EXECUTIVE ORDER 11491, RECOMMENDED THAT THE PRIVATE SECTOR POLICY - THAT
GUARDS SHOULD NOT BE INCLUDED IN UNITS WITH NONGUARD EMPLOYEES AND THAT
GUARDS SHOULD NOT BE REPRESENTED BY LABOR ORGANIZATIONS WHICH ADMIT TO
MEMBERSHIP EMPLOYEES OTHER THAN GUARDS - SHOULD BE MADE APPLICABLE TO
THE FEDERAL /3/ SERVICE. IT IS CLEAR THAT THE PRIVATE SECTOR POLICY WAS
BASED ON THE VIEW THAT A MIXTURE OF GUARDS AND NONGUARDS IN EMPLOYEES
BARGAINING UNITS AND GUARD REPRESENTATION BY LABOR ORGANIZATIONS WHICH
ADMIT TO MEMBERSHIP EMPLOYEES OTHER THAN GUARDS WOULD RESULT IN A
CONFLICT OR APPARENT CONFLICT OF INTEREST IN SITUATIONS WHICH AN
EMPLOYER REQUIRED THE ENFORCEMENT OF ITS RULES TO PROTECT ITS PROPERTY
AND THE SAFETY OF PERSONS THEREON. SECTIONS 10(B)(3) AND 10(C) OF THE
EXECUTIVE ORDER CLEARLY REFLECT THE ADOPTION OF THE FOREGOING VIEWS.
AS NOTED ABOVE, IN THE SUBJECT CASE, AFGE LOCAL 2592, A NONGUARD
LABOR ORGANIZATION, HAS A GUARD AS ITS PRESIDENT. MOREOVER, THE
EVIDENCE REVEALS THAT IN HIS CAPACITY AS PRESIDENT OF THIS LABOR
ORGANIZATION, THE GUARD, IN FACT, WAS CO-SIGNER OF THE PETITION. THESE
FACTORS ARE, IN MY VIEW, INCONSISTENT WITH THE INTENT OF THE EXECUTIVE
ORDER AS EXPRESSED IN THE STUDY COMMITTEE'S REPORT AND RECOMMENDATIONS
AND SECTIONS 1(B), 10(B)(3) AND 10(C). THUS, DESPITE THE FACT THAT
SECTIONS 10(B)(3) AND 10(C) OF THE ORDER SPEAK IN TERMS OF UNITS WHEN
THESE PROVISIONS ARE READ IN CONJUNCTION WITH SECTION 1(B) OF THE ORDER,
I FIND THAT TO EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER, GUARDS
SHOULD NOT BE PERMITTED TO PARTICIPATE IN THE MANAGEMENT OF NONGUARD
LABOR ORGANIZATIONS. SUCH PARTICIPATION, IN MY VIEW, "RESULT(S) IN A
CONFLICT OR APPARENT CONFLICT OF INTEREST . . . " AND IS ALSO
"INCOMPATIBLE WITH . . . THE OFFICIAL DUTIES OF THE /4/ EMPLOYEE."
ACCORDINGLY, IN ALL THE CIRCUMSTANCES OF THIS CASE INCLUDING THE
AFGE'S LACK OF COOPERATION IN COMPLYING WITH A REQUEST OF THE HEARING
OFFICER TO MAKE AVAILABLE A WITNESS WHO WAS PRESENT IN THE HEARING ROOM
AND THE FACT THAT THE PRESIDENT OF THE NONGUARD AFGE LOCAL INVOLVED IN
THIS PROCEEDING IS A GUARD, WHO, IN HIS CAPACITY AS PRESIDENT, WAS A
CO-SIGNER OF THE REPRESENTATION PETITION IN THIS CASE, I FIND THE
PETITION HEREIN SHOULD BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 31-3319 E.O. BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 2, 1971
/1/ IN 1966 AND 1967, THE AFGE UNSUCCESSFULLY CHALLENGED THE NAGE'S
EXCLUSIVE REPRESENTATIVE STATUS.
/2/ THE NAGE SUBSEQUENTLY MADE AN OFFER OF PROOF WITH RESPECT TO
GRACA'S TESTIMONY. ITS REPRESENTATIVE CONTENDED THAT THROUGH HIS
TESTIMONY HE SOUGHT TO DEVELOP PROOF OF CONFLICT OF INTEREST AS IT
PERTAINED TO HIS DUTIES AS A GUARD AND HIS DUTIES AS PRESIDENT OF THE
AFGE LOCAL INVOLVED IN THIS PROCEEDING. AFTER THE OFFER OF PROOF WAS
MADE, THE HEARING OFFICER ASKED GRACA DIRECTLY IF HE WOULD APPEAR AS A
WITNESS AND HE REFUSED.
/3/ SEE SECTION B(6) OF THE REPORT AND RECOMMENDATIONS.
/4/ SEE SECTION 1(B) OF THE ORDER.
1 A/SLMR 20; P. 126; CASE NOS. 41-1723(RO), 41-1741(RO); APRIL 2,
1971.
MISSISSIPPI NATIONAL GUARD
172ND AIRLIFE GROUP (THOMPSON FIELD)
AND
MISSISSIPPI NATIONAL GUARD, (CAMP SHELBY)
A/SLMR NO. 20
THE SUBJECT CASES INVOLVING REPRESENTATION PETITIONS FILED BY THE
INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO,
AND ITS ARMY-AIR TECHNICIANS ASSOCIATION, LOCAL 676, (IUE) AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3151, (AFGE) RAISED
THE FOLLOWING QUESTIONS:
1. ARE THE PROVISIONS OF THE EXECUTIVE ORDER APPLICABLE TO AN
ACTIVITY WHICH EMPLOYS NATIONAL GUARD TECHNICIANS AND IS ADMINISTERED BY
A STATE ADJUTANT GENERAL WHO IS A STATE EMPLOYEE?
2. ARE TWO SEPARATE UNITS OF NATIONAL GUARD TECHNICIANS EMPLOYED BY
THE ACTIVITY AT TWO OF ITS INSTALLATIONS APPROPRIATE?
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
PROVISIONS OF THE EXECUTIVE ORDER ARE APPLICABLE TO THE ACTIVITY
NOTWITHSTANDING THE FACT THAT IT IS ADMINISTERED BY AN ADJUTANT GENERAL
WHO IS A STATE EMPLOYEE. IN REACHING THIS DETERMINATION, THE ASSISTANT
SECRETARY RELIED ON THE FACT THAT THE NATIONAL GUARD TECHNICIANS IN THE
CLAIMED UNITS WERE MADE FEDERAL EMPLOYEES BY VIRTUE OF THE ENACTMENT OF
THE NATIONAL GUARD TECHNICIANS ACT OF 1968. THE ASSISTANT SECRETARY
ALSO VIEWED AS PARTICULARLY RELEVANT THE POSITION OF THE DEPARTMENT OF
DEFENSE THAT THE EMPLOYEES IN THE SOUGHT UNITS ARE COVERED BY EXECUTIVE
ORDER 11491 AND THE FACT THAT THE ACTIVITY'S ADJUTANT GENERAL ACTS AS
THE AGENT FOR THE SECRETARIES OF THE ARMY AND THE AIR FORCE IN
IMPLEMENTING LABOR RELATIONS AND PERSONNEL POLICIES REGARDING THE
EMPLOYMENT OF NATIONAL GUARD TECHNICIANS. IT WAS NOTED THAT THE LABOR
RELATIONS AND PERSONNEL POLICIES ESTABLISHED BY THE SECRETARIES OF THE
ARMY AND THE AIR FORCE CLEARLY STATE THAT THE TERMS AND PROVISIONS OF
EXECUTIVE ORDER 11491 ARE APPLICABLE TO NATIONAL GUARD TECHNICIANS, AND
THAT ADJUTANTS GENERAL ARE TO INSURE THAT THE ORDER IS COMPLIED WITH IN
THEIR RESPECTIVE JURISDICTIONS.
WITH RESPECT TO THE PETITIONED FOR UNITS, THE ASSISTANT SECRETARY
CONCLUDED THAT THE RECORD PROVIDED LESS THAN AN ADEQUATE BASIS FOR
MAKING A DETERMINATION CONCERNING THE APPROPRIATENESS OF THE UNITS
SOUGHT. BECAUSE THERE WAS LESS THAN AN ADEQUATE FACTUAL BASIS ON WHICH
TO DETERMINE THE APPROPRIATENESS OF THE CLAIMED UNITS, THE ASSISTANT
SECRETARY REMANDED THE CASES TO THE APPROPRIATE REGIONAL ADMINISTRATOR
TO REOPEN THE RECORD SOLELY FOR THE PURPOSE OF OBTAINING EVIDENCE
CONCERNING THE APPROPRIATENESS OF THE PETITIONED FOR UNITS.
MISSISSIPPI NATIONAL GUARD,
172ND MILITARY AIRLIFT GROUP (THOMPSON FIELD)
AND
INTERNATIONAL UNION OF ELECTRICAL, RADIO
AND MACHINE WORKERS, AFL-CIO AND ITS
NATIONAL ARMY-AIR TECHNICIANS ASSOCIATION,
LOCAL 676
MISSISSIPPI NATIONAL GUARD,
(CAMP SHELBY)
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, /1/ LOCAL 3151
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER SEYMOUR X. ALSHER.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING BRIEFS FILED BY ALL
THE PARTIES, THE ASSISTANT SECRETARY FINDS;
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A POSSIBLE QUESTION CONCERNING THE REPRESENTATION OF CERTAIN
EMPLOYEES OF THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF
EXECUTIVE ORDER 11491.
3. IN CASE NO. 41-1723(RO), THE INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS, AFL-CIO AND ITS NATIONAL ARMY-AIR TECHNICIANS
ASSOCIATION, LOCAL 676, HEREIN CALLED IUE, SEEKS AN ELECTION IN A UNIT
OF ALL NONSUPERVISORY WAGE BOARD EMPLOYEES EMPLOYED BY THE 172ND
MILITARY AIRLIFT GROUP, MISSISSIPPI NATIONAL GUARD AT THE ACTIVITY'S
THOMPSON FIELD INSTALLATION. IN CASE NO. 41-1741(RO), THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3151, HEREIN CALLED
AFGE, SEEKS A UNIT OF ALL EMPLOYEES IN THE ANNUAL TRAINING EQUIPMENT
POOL, COMBINED SUPPORT MAINTENANCE SHOP, ORGANIZATION MAINTENANCE SHOP
NO. 6, AND THE UNITED STATES PROPERTY AND FISCAL OFFICE AT THE
ACTIVITY'S CAMP SHELBY INSTALLATION. AT THE HEARING, THE ACTIVITY
DECLINED TO TAKE A POSITION CONCERNING THE APPROPRIATENESS OF THE UNITS
SOUGHT BY THE IUE AND THE AFGE. IN THIS RESPECT, THE ACTIVITY
CONTENDED, AMONG OTHER THINGS, THAT THE PROVISIONS OF EXECUTIVE ORDER
11491 DID NOT APPLY IN THIS MATTER BECAUSE THE EMPLOYEES INVOLVED ARE
UNDER THE OPERATIONAL CONTROL OF THE ADJUTANT GENERAL OF THE STATE OF
MISSISSIPPI, WHO IS APPOINTED AND EMPLOYED PURSUANT TO STATE LAW AND
THAT THE EXECUTIVE ORDER IS NEITHER BINDING UPON NOR APPLICABLE TO
EMPLOYEES OF THE STATE OF MISSISSIPPI.
THE ADJUTANT GENERAL OF THE STATE OF MISSISSIPPI ADMINISTERS THE ARMY
AND AIR NATIONAL GUARD TECHNICIANS PROGRAM WITHIN REGULATIONS AND GUIDE
LINES ESTABLISHED BY THE SECRETARIES OF THE DEPARTMENT OF THE ARMY AND
THE DEPARTMENT OF THE AIR FORCE AND THE CHIEF OF THE NATIONAL GUARD
BUREAU, WHICH IS A JOINT BUREAU OF BOTH THE ABOVE-NAMED DEPARTMENTS.
THE ADJUTANT GENERAL IS APPOINTED BY THE GOVERNOR OF THE STATE OF
MISSISSIPPI. NEITHER THE NATIONAL GUARD BUREAU NOR THE SECRETARIES OF
THE DEPARTMENTS OF THE ARMY OR THE AIR FORCE HAVE THE AUTHORITY TO VETO
THE SELECTION OF AN INDIVIDUAL CHOSEN BY THE GOVERNOR TO BE THE STATE
ADJUTANT GENERAL. HOWEVER, IN ORDER FOR A STATE NATIONAL GUARD PROGRAM
TO BE RECOGNIZED, FEDERALLY, A STATE ADJUTANT GENERAL MUST COMPLY WITH
CERTAIN PRESCRIBED STANDARDS ESTABLISHED BY OUTSTANDING AGENCY
REGULATIONS ISSUED BY /2/ THE ABOVE NAMED SECRETARIES.
IN SUPPORT OF THE ACTIVITY'S POSITION THAT THE PROVISIONS OF
EXECUTIVE ORDER 11491 WERE INAPPLICABLE IN THE MATTER, THE FOLLOWING
CONTENTIONS WERE MADE:
1. PUBLIC LAW 90-486, WHICH ALLEGEDLY GRANTED NATIONAL GUARD
EMPLOYEES FEDERAL EMPLOYEE STATUS, /3/ WAS, IN FACT, ENACTED SOLELY FOR
THE PURPOSE OF GRANTING RETIREMENT BENEFITS AND PROTECTION UNDER THE
FEDERAL TORTS CLAIMS ACT TO EXCEPTED NATIONAL GUARD TECHNICIANS.
2. THE TERMS AND PROVISIONS OF EXECUTIVE ORDER 11491 ARE NOT BINDING
UPON NOR APPLICABLE TO THE SOVEREIGN STATE OF MISSISSIPPI.
3. CERTAIN PORTIONS OF NATIONAL GUARD REGULATIONS NO. 51 AND AIR
NATIONAL GUARD REGULATIONS. NO. 40-01, WHICH WERE ISSUED ON MARCH 1,
1970, BY THE SECRETARIES OF THE DEPARTMENTS OF THE ARMY AND THE AIR
FORCE FOR THE PURPOSE OF PROVIDING GUIDANCE FOR THE ORGANIZATION,
FUNCTIONS AND RESPONSIBILITIES WITH RESPECT TO CIVILIAN PERSONNEL
ADMINISTRATION WITHIN THE ARMY AND AIR NATIONAL GUARD, INCLUDING THE
IMPLEMENTATION OF EXECUTIVE ORDER 11491, CIRCUMVENT THE INTENT OF
CONGRESS AND WERE NEVER CONTEMPLATED BY PUBLIC LAW 90-486.
4. THE LAWS OF THE STATE OF MISSISSIPPI DO NOT GRANT THE ADJUTANT
GENERAL ANY AUTHORITY TO NEGOTIATE OR ENTER INTO CONTRACTS WITH LABOR
ORGANIZATIONS.
WITH RESPECT TO THE FIRST CONTENTION, THE ACTIVITY ASSERTED THAT
CLOSE SCRUTINY OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-486 REVEALS
THAT NATIONAL GUARD TECHNICIANS WERE CONFERRED FEDERAL EMPLOYEE STATUS
ONLY FOR THOSE SPECIFICALLY ENUMERATED PURPOSES SET FORTH IN THE
LEGISLATIVE HISTORY. IN THIS REGARD, IT IS CONTENDED THAT THESE LIMITED
PURPOSES WERE TO GRANT RETIREMENT BENEFITS AND COVERAGE UNDER THE
FEDERAL TORTS CLAIMS ACT TO EXCEPTED NATIONAL GUARD TECHNICIANS.
WITH RESPECT TO THE SECOND CONTENTION, THE ACTIVITY ASSERTED THAT
EXECUTIVE ORDER 11491 IS NOT APPLICABLE TO THE STATE OF MISSISSIPPI
BECAUSE NATIONAL GUARD TECHNICIANS ARE ENGAGED IN A STATE RATHER THAN A
FEDERAL FUNCTION. IN SUPPORT OF THIS CONTENTION, THE ACTIVITY NOTES
THAT PUBLIC LAW 90-486 AMENDED SECTION 2105(A) OF TITLE 5 OF THE UNITED
STATES CODE WHICH DEFINES WHAT CONSTITUTES A FEDERAL EMPLOYEE, /4/ BY
PROVIDING THAT AN INDIVIDUAL CAN BE APPOINTED TO THE CIVIL SERVICE BY,
AMONG OTHER SPECIFICALLY NAMED OFFICIALS, A STATE ADJUTANT GENERAL. IN
THIS REGARD, IT IS CONTENDED THAT FOR NATIONAL GUARD TECHNICIANS TO BE
FOUND TO BE FEDERAL EMPLOYEES, THEY MUST MEET ALL THREE OF THE CRITERIA,
OUTLINED IN SECTION 2105(A) INCLUDING THE REQUIREMENT THAT THEY BE
ENGAGED IN THE PERFORMANCE OF A FEDERAL FUNCTION. BECAUSE MISSISSIPPI
NATIONAL GUARD TECHNICIANS ARE ALLEGEDLY PERFORMING A STATE FUNCTION IN
THAT THEY ARE APPOINTED AND SUPERVISED BY A STATE ADJUTANT GENERAL, IT
IS ARGUED THAT THEY ARE NOT /5/ FEDERAL EMPLOYEES.
IN REGARD TO THE ACTIVITY'S THIRD CONTENTION, IT APPEARS THAT THE
ACTIVITY OBJECTS TO SECTION 7 OF NATIONAL GUARD REGULATIONS NO. 51 AND
AIR NATIONAL GUARD REGULATIONS NO. 40-01 WHICH WERE ISSUED ON MARCH 1,
1970, BY THE SECRETARIES OF THE DEPARTMENTS OF THE ARMY AND /6/ THE AIR
FORCE. THE PURPOSE OF THE REGULATIONS WAS TO PROVIDE GUIDANCE WITH
RESPECT TO PERSONNEL ADMINISTRATION INCLUDING THE IMPLEMENTATION OF
EXECUTIVE ORDER 11491 BY STATE ADJUTANTS GENERAL IN THEIR RESPECTIVE
JURISDICTIONS. IT IS ASSERTED BY THE ACTIVITY THAT PERSONNEL
ADMINISTRATION IS EXCLUSIVELY A STATE FUNCTION, AND THEREFORE, EXECUTIVE
ORDER 11491 CANNOT BE IMPOSED UPON THE STATE THROUGH REGULATIONS.
IN SUPPORT OF ITS FOURTH CONTENTION, IT IS ASSERTED THAT THE
ACTIVITY'S ADJUTANT GENERAL CAN EXERCISE ONLY THOSE POWERS WHICH ARE
SPECIFICALLY GRANTED HIM BY THE LAWS OF THE STATE OF MISSISSIPPI.
BECAUSE THE LAWS OF THE STATE OF MISSISSIPPI DO NOT SPECIFICALLY AND
EXPRESSLY GRANT THE STATE ADJUTANT GENERAL THE AUTHORITY TO NEGOTIATE OR
ENTER INTO A CONTRACT WITH A LABOR ORGANIZATION, IT IS CONTENDED THAT
THE STATE ADJUTANT GENERAL IS POWERLESS IN IMPLEMENTING THE PROVISIONS
OF /7/ EXECUTIVE ORDER 11491.
IN CONTRAST TO THE POSITION OF THE ACTIVITY IN THIS CASE, IT SHOULD
BE NOTED THAT THE DEPARTMENT OF DEFENSE'S INTERPRETATION OF PUBLIC LAW
90-486 FINDS NATIONAL GUARD TECHNICIANS TO BE FEDERAL EMPLOYEES AND
ACCORDINGLY, IN THAT DEPARTMENT'S VIEW, EXECUTIVE ORDER 11491 IS
APPLICABLE TO NATIONAL GUARD TECHNICIANS. THUS, THE RECORD REVEALS THAT
ASSISTANT SECRETARY OF DEFENSE KELLY, IN A MEMORANDUM DATED MARCH 26,
1970, TO MAJOR GENERAL WILSON, THE CHIEF OF THE NATIONAL GUARD BUREAU,
STATED, IN PART, THAT:
I HAVE LEARNED . . . THAT THE GOVERNOR AND ADJUTANT GENERAL OF
MISSISSIPPI CONTEND THAT NATIONAL GUARD TECHNICIANS ARE NOT FEDERAL
EMPLOYEES FOR THE PURPOSES OF EXECUTIVE ORDER 11491, LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE.
... NATIONAL GUARD TECHNICIANS IN THE 50 STATES BECAME FEDERAL
EMPLOYEES AS A RESULT OF PUBLIC LAW 90-486 (32USC709) . . .
. . . PLEASE INFORM THE ADJUTANT GENERAL OF THE STATE OF MISSISSIPPI
THAT NATIONAL GUARD TECHNICIANS UNDER HIS JURISDICTION ARE FEDERAL
EMPLOYEES FOR THE PURPOSES OF EXECUTIVE ORDER 11491, AND INSTRUCT HIM AS
TO THE NECESSITY FOR OBSERVING AND IMPLEMENTING THE POLICY OF THIS
DEPARTMENT, AS DESCRIBED ABOVE, WITH RESPECT TO THOSE TECHNICIANS . . .
BASED ON THE FOREGOING, I FIND THAT NATIONAL GUARD TECHNICIANS ARE
EMPLOYEES WITHIN THE MEANING OF SECTION 2(B) OF THE ORDER. AS NOTED
ABOVE, THE RECORD REVEALS THAT THE DEPARTMENT OF DEFENSE HAS INTERPRETED
PUBLIC LAW 90-486 TO MEAN THAT THE NATIONAL GUARD TECHNICIANS, AS
DEFINED THEREIN, ARE EMPLOYEES OF THE FEDERAL GOVERNMENT. CONSISTENT
WITH ITS INTERPRETATION OF THE LAW, REGULATIONS HAVE BEEN ISSUED,
SPECIFICALLY NATIONAL GUARD REGULATIONS NO. 51 AND AIR NATIONAL GUARD
REGULATIONS NO. 40-01, TO IMPLEMENT THE TERMS AND PROVISIONS OF
EXECUTIVE ORDER 11491. MOREOVER, UNDER EXECUTIVE ORDER 11491, I HAVE
ISSUED TWO REPRESENTATION DECISIONS INVOLVING NATIONAL GUARD TECHNICIANS
UNITS /8/ AND THE ACTIVITIES IN THOSE CASES MADE NO CONTENTION THAT
EXECUTIVE ORDER 11491 WAS INAPPLICABLE TO THEIR ADJUTANTS GENERAL
BECAUSE OF THEIR CAPACITY AS A STATE OFFICIAL OR BECAUSE NATIONAL GUARD
TECHNICIANS ARE /9/ STATE EMPLOYEES.
WITH RESPECT TO THE CONTENTION THAT PUBLIC LAW 90-486 CONSTITUTE
NATIONAL GUARD TECHNICIANS TO BE FEDERAL EMPLOYEES FOR CERTAIN
ENUMERATED, LIMITED PURPOSES, THE LEGISLATIVE HISTORY OF PUBLIC LAW
90-486 REVEALS THAT ITS PROPOSED SCOPE WAS BROADER THAN MERELY GRANTING
RETIREMENT BENEFITS AND PROTECTION UNDER THE FEDERAL TORTS CLAIMS ACT TO
EXCEPTED NATIONAL GUARD TECHNICIANS. IN THIS REGARD, THE SENATE ARMED
SERVICES COMMITTEE'S REPORT, ISSUED IN 1968, /10/ CONCERNING PUBLIC LAW
90-486 STATES, IN PART, THAT:
THIS BILL IMPLEMENTS THE PURPOSE BY CONVERTING THE TECHNICIANS TO
FEDERAL EMPLOYEE STATUS WITH CERTAIN CONTROLS ON ADMINISTRATION AND
SUPERVISION WHICH WOULD AS A MATTER OF LAW REMAIN AT THE STATE LEVEL.
IN EFFECT, THE TECHNICIANS WILL BECOME FEDERAL EMPLOYEES RECEIVING THE
SALARIES, FRINGE AND RETIREMENT BENEFITS, BUT WITH CERTAIN
ADMINISTRATIVE CONTROL REGARDING EMPLOYMENT SUPERVISION REMAINING WITH
THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED UNDER REGULATIONS
PRESCRIBED BY THE SECRETARY CONCERNED . . . (EMPHASIS ADDED)
THUS, CONTRARY TO THE VIEW OF THE ACTIVITY, I FIND THAT THERE IS NO
INDICATION IN PUBLIC LAW 90-486 OR IN THE LEGISLATIVE HISTORY WHICH
PRECEDED IT THAT FEDERAL EMPLOYEE STATUS WAS GRANTED TO NATIONAL GUARD
TECHNICIANS SOLELY FOR THE PURPOSE OF GRANTING THESE EMPLOYEES FEDERAL
RETIREMENT BENEFITS OR COVERAGE UNDER THE FEDERAL TORTS CLAIMS ACT.
I ALSO HAVE CONSIDERED THE CONTENTION THAT THE LAWS OF MISSISSIPPI DO
NOT PERMIT THE ADJUTANT GENERAL TO NEGOTIATE WITH A LABOR ORGANIZATION.
THE APPLICABLE REGULATIONS ISSUED BY THE SECRETARIES OF THE ARMY AND AIR
FORCE AND CERTAIN SECTIONS OF TITLE 32 OF THE U.S. CODE INDICATE THAT
THE ADJUTANT GENERAL OF A STATE, IN EFFECT, HAS BEEN DESIGNATED AS AN
AGENT OF THE SECRETARIES OF THE ARMY AND THE AIR FORCE AS WELL AS OF THE
CHIEF OF THE NATIONAL GUARD BUREAU, TO INSURE THAT PERSONNEL AND LABOR
RELATIONS POLICIES ARE ADMINISTERED IN CONFORMITY WITH ACCEPTED FEDERAL
STANDARDS. ACTING AS AN AGENT OF THE SECRETARIES OF THE ARMY AND THE AIR
FORCE AND THE CHIEF OF THE NATIONAL GUARD BUREAU, IT APPEARS THAT
SUFFICIENT ENABLING AUTHORITY IS FOUND IN OUTSTANDING REGULATIONS ISSUED
BY THE SECRETARIES OF THE ARMY AND THE AIR FORCE TO INSURE THAT STATE
ADJUTANTS GENERAL WILL COMPLY WITH THE TERMS AND PROVISIONS OF EXECUTIVE
ORDER 11491. CONSEQUENTLY, I FIND THAT THE PROVISIONS OF THE EXECUTIVE
ORDER ARE APPLICABLE TO THE ACTIVITY AND THAT THE NATIONAL GUARD
TECHNICIANS IN THE SOUGHT UNIT ARE EMPLOYEES WITHIN THE MEANING OF
SECTION 2(B) OF EXECUTIVE ORDER 11491.
WITH RESPECT TO THE APPROPRIATENESS OF THE UNITS SOUGHT, THE RECORD
SHOWS THAT BOTH THE IUE AND THE AFGE SEEK UNITS COMPOSED OF NATIONAL
GUARD TECHNICIANS EMPLOYED AT TWO SEPARATE INSTALLATIONS OF THE ACTIVITY
IN THE STATE OF MISSISSIPPI. NEITHER THE REPRESENTATIVE OF THE
DEPARTMENT OF DEFENSE NOR THE REPRESENTATIVE OF THE ACTIVITY PRESENTED
ANY EVIDENCE AT THE HEARING WITH RESPECT TO THE CLAIMED UNITS. INDEED,
THE ACTIVITY'S ADJUTANT GENERAL LEFT THE HEARING ROOM SHORTLY AFTER
READING HIS FORMAL STATEMENT OF POSITION CONCERNING JURISDICTION INTO
THE RECORD. THERE WERE NO OTHER REPRESENTATIVES OF THE ACTIVITY
REMAINING IN THE HEARING ROOM WHO SOUGHT TO PRESENT EVIDENCE CONCERNING
THE APPROPRIATENESS OF THE CLAIMED UNITS.
THE RECORD DISCLOSES THAT THERE ARE NO OTHER LABOR ORGANIZATIONS
WHICH SEEK TO REPRESENT THE EMPLOYEES IN EITHER OF THE CLAIMED UNITS,
AND THAT NEITHER THE IUE NOR THE AFGE HAS AN INTEREST IN REPRESENTING
EMPLOYEES IN THE UNIT BEING SOUGHT BY THE OTHER. I FIND, HOWEVER, THAT
THE RECORD PROVIDES LESS THAN AN ADEQUATE BASIS FOR MAKING A
DETERMINATION CONCERNING THE APPROPRIATENESS OF THE UNITS BY THE IUE AND
THE AFGE. THERE IS NO INFORMATION CONCERNING THE ACTIVITY'S
ORGANIZATIONAL STRUCTURE, SUPERVISORY HIERARCHY, OR PERSONNEL AND LABOR
RELATIONS POLICIES. MOREOVER, THERE ARE NO FACTS CONCERNING THE
EMPLOYEES IN THE CLAIMED UNITS, THEIR JOB FUNCTIONS, THE DEGREE OF
EMPLOYEE INTERCHANGE OR THEIR WORKING CONDITIONS.
SINCE, IN MY VIEW, THE RECORD DOES NOT PROVIDE AN ADEQUATE BASIS ON
WHICH TO DETERMINE THE APPROPRIATENESS OF THE CLAIMED UNITS, I SHALL
REMAND THE SUBJECT CASES TO THE APPROPRIATE REGIONAL ADMINISTRATOR TO
REOPEN THE RECORD SOLELY FOR THE PURPOSE OF RECEIVING EVIDENCE
CONCERNING THE APPROPRIATENESS OF THE UNITS SOUGHT.
IT IS HEREBY ORDERED THAT THE SUBJECT CASES BE, AND THEY HEREBY ARE,
REMANDED TO THE APPROPRIATE REGIONAL ADMINISTRATOR.
DATED, WASHINGTON, D.C.
APRIL 2, 1971
/1/ THE PETITIONER'S NAME APPEARS AS AMENDED AT THE HEARING.
/2/ TITLE 32, U.S.C.A., SECTION 1101.1(E) PROVIDES, IN PART, THAT:
"THE APPOINTMENT OF THE ADJUTANT GENERAL OF A STATE AND HIS TENURE OF
OFFICE ARE GOVERNED BY THE LAWS OF THE STATE. . . A STATE ADJUTANT
GENERAL MAY BE APPOINTED AND SERVE WITHOUT FEDERAL RECOGNITION."
TITLE 32 U.S.C.A., SECTION 108 PROVIDES, IN PART, THAT: "IF, WITHIN
A TIME TO BE FIXED BY THE PRESIDENT, A STATE DOES NOT COMPLY WITH OR
ENFORCE A REQUIREMENT OF, OR REGULATIONS PRESCRIBED UNDER THIS TITLE,
ITS NATIONAL GUARD IS BARRED, WHOLLY OR PARTLY AS THE PRESIDENT MAY
PRESCRIBE, FROM RECEIVING MONEY OR ANY OTHER AID, BENEFIT OR PRIVILEGE
AUTHORIZED BY LAW . . ."
/3/ PUBLIC LAW 90-486, NATIONAL GUARD TECHNICIANS ACT OF 1968 (82
STAT. 756).
/4/ SECTION 2105(A) TITLE 5, UNITED STATES CODE PROVIDES: (A) FOR
THE PURPOSE OF THIS TITLE, "EMPLOYEE" EXCEPT AS OTHERWISE PROVIDED BY
THIS SECTION WHEN SPECIFICALLY MODIFIED, MEANS AN OFFICER AND AN
INDIVIDUAL WHO IS--
(1) APPOINTED IN THE CIVIL SERVICE BY ONE OF THE FOLLOWING ACTING IN
AN OFFICIAL CAPACITY--
(A) THE PRESIDENT;
(B) A MEMBER OF MEMBERS OF CONGRESS, OR THE CONGRESS;
(C) A MEMBER OF A UNIFORMED SERVICE;
(D) AN INDIVIDUAL WHO IS AN EMPLOYEE UNDER THIS SECTION;
(E) THE HEAD OF A GOVERNMENT CONTROLLED CORPORATION; OR
(F) THE ADJUTANTS GENERAL DESIGNATED BY THE SECRETARY CONCERNED UNDER
SECTION 709(C) OF
TITLE 32, UNITED STATES CODE;
(2) ENGAGED IN THE PERFORMANCE OF A FEDERAL FUNCTION UNDER AUTHORITY
OF LAW OR AN EXECUTIVE ACT; AND
(3) SUBJECT TO THE SUPERVISION OF AN INDIVIDUAL NAMED BY PARAGRAPH
(1) OF THIS SUBSECTION WHILE ENGAGED IN THE PERFORMANCE OF THE DUTIES OF
HIS POSITION.
/5/ IN FURTHER SUPPORT OF ITS CONTENTIONS, THE ACTIVITY CITED SEVERAL
FEDERAL COURT DECISIONS DECIDED PRIOR TO THE ENACTMENT OF PUBLIC LAW
90-486, WHICH, AMONG OTHER THINGS, FOUND NATIONAL GUARD TECHNICIANS TO
BE STATE EMPLOYEES.
/6/ SECTION 7-1 OF THE REGULATIONS STATES, IN PART, THAT: "THE
PROGRAM OF LABOR-MANAGEMENT RELATIONS IS ESTABLISHED BY EXECUTIVE ORDER
11491, OCTOBER 19, 1969, AND IS FULLY APPLICABLE TO ALL NATIONAL GUARD
TECHNICIANS (WHEN IN A CIVILIAN EMPLOYEE STATUS), THE NATIONAL GUARD
BUREAU AND STATE ADJUTANTS GENERAL. NATIONAL GUARD TECHNICIANS, AS
EMPLOYEES OF THE UNITED STATES, SHALL HAVE, AND SHALL BE PROTECTED IN
THE EXERCISE OF, THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, TO FORM, JOIN, AND ASSIST ANY LABOR ORGANIZATION OR TO REFRAIN
FROM ANY SUCH ACTIVITY. . . "
/7/ IN SUPPORT OF THIS CONTENTION, THE ACTIVITY CITED SEVERAL
DECISIONS OF THE SUPREME COURT OF THE STATE OF MISSISSIPPI IN WHICH IT
WAS HELD THAT STATE AGENCIES AND MUNICIPAL CORPORATIONS WHICH ARE
CREATED BY THE STATE LEGISLATURE HAVE ONLY THOSE POWERS WHICH ARE
SPECIFICALLY AND EXPRESSLY GRANTED TO THEM BY STATUTE.
/8/ SEE PENNSYLVANIA NATIONAL GUARD, A/SLMR NO. 9, AND MINNESOTA ARMY
NATIONAL GUARD, A/SLMR NO. 14.
/9/ MOREOVER, THE ACTIVITY'S CONTENTIONS THAT THE NATIONAL GUARD
TECHNICIANS ARE STATE EMPLOYEES BASED UPON COURT DECISIONS ISSUED PRIOR
TO THE ENACTMENT OF PUBLIC LAW 90-486, LACKS MERIT. SECTION 715 OF
PUBLIC LAW 90-486 STATES IN EFFECT, THAT IT SUPERSEDES "ANY LAW, RULE,
REGULATIONS, OR DECISION," WHICH WOULD PROVIDE THAT NATIONAL GUARD
TECHNICIANS ARE NOT EMPLOYEES OF THE UNITED STATES. THEREFORE, THE
COURT DECISIONS ISSUED PRIOR TO JANUARY 1, 1969, IN WHICH NATIONAL GUARD
TECHNICIANS WERE FOUND TO BE STATE EMPLOYEES, IN MY VIEW, ARE CLEARLY
INAPPLICABLE BECAUSE OF THE SUBSEQUENT ENACTMENT OF PUBLIC LAW 90-486 BY
CONGRESS.
/10/ U.S. CONGRESS, COMMITTEE ON ARMED SERVICES, NATIONAL GUARD
TECHNICIANS ACT OF 1968, P.2, 90TH CONGRESS, 2ND SESSION, REPORT 1446.
1 A/SLMR 19; P. 123; CASE NO. 46-1704(RO); MARCH 30, 1971.
UNITED STATES DEPARTMENT OF THE ARMY,
UNITED STATES ARMY CORPS OF ENGINEERS
A/SLMR NO. 19
THE SUBJECT CASE INVOLVING A REPRESENTATION PETITION FILED BY MARINE
ENGINEERS BENEFICIAL ASSOCIATION, DISTRICT 1-PCD, AFL-CIO (MEBA),
PRESENTED THE QUESTION WHETHER A UNIT CONSISTING OF ALL LICENSED MARINE
ENGINEERS EMPLOYED ON ALL SELF-PROPELLED HOPPER AND SIDE CASTING DREDGES
OPERATED BY THE ACTIVITY IS APPROPRIATE.
THE ASSISTANT SECRETARY CONCLUDED THAT THE PETITIONED FOR UNIT WAS
NOT APPROPRIATE. IN REACHING THIS DETERMINATION, THE ASSISTANT
SECRETARY NOTED PARTICULARLY THAT IN MANY DISTRICTS OF THE ACTIVITY,
INCLUDING SOME OF THE SAME DISTRICTS COVERED BY THE PETITION, THERE WERE
LICENSED MARINE ENGINEERS WHO WERE NOT INCLUDED IN THE PETITIONED FOR
UNIT BECAUSE THEY WORKED ON OTHER TYPES OF FLOATING PLANTS. THESE
MARINE ENGINEERS POSSESSED SIMILAR SKILLS AND PERFORMED SIMILAR JOB
FUNCTIONS AS THOSE PERFORMED BY MARINE ENGINEERS ON HOPPER AND SIDE
CASTING DREDGES. IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND
THAT A UNIT LIMITED TO THAT SOUGHT BY THE MEBA WOULD RESULT IN A
FRAGMENTED UNIT OF CERTAIN LICENSED MARINE ENGINEERS AND CREATE A
RESIDUAL GROUP OF BOTH REPRESENTED AND UNREPRESENTED LICENSED MARINE
ENGINEERS WHO SHARED A COMMUNITY OF INTEREST WITH THOSE EMPLOYEES
COVERED BY THE PETITION. IN THE ASSISTANT SECRETARY'S VIEW, SUCH A
FRAGMENTED UNIT WOULD SERIOUSLY HAMPER EFFECTIVE DEALINGS, WOULD NOT
PROMOTE EFFICIENT AGENCY OPERATIONS AND DID NOT POSSESS A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST. ACCORDINGLY, HE ORDERED THAT THE
PETITION BE DISMISSED.
UNITED STATES DEPARTMENT OF THE ARMY,
UNITED STATES ARMY CORPS OF ENGINEERS
AND
MARINE ENGINEERS BENEFICIAL ASSOCIATION,
DISTRICT 1-PCD, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER GERALD W. WELCOME. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS OF THE
ACTIVITY /1/ AND THE MARINE ENGINEERS BENEFICIAL ASSOCIATION, DISTRICT
1-PCD, AFL-CIO, HEREIN CALLED MEBA /2/ , THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. FOR THE REASONS DISCUSSED BELOW, NO QUESTION CONCERNING THE
REPRESENTATION OF CERTAIN EMPLOYEES OF THE ACTIVITY EXISTS WITHIN THE
MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491.
3. THE PETITIONER, MEBA, SEEKS AN ELECTION IN A UNIT OF ALL MARINE
ENGINEERS ON SELF-PROPELLED HOPPER AND SIDE CASTING DREDGES IN ALL
DISTRICTS OF THE UNITED STATES ARMY CORPS OF ENGINEERS. THE ACTIVITY
CONTENDS THAT IN ORDER TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
OPERATIONS, THE APPROPRIATE UNIT SHOULD BE FOUND TO BE ON A
DISTRICT-WIDE BASIS AND ASSERTS THAT IT SHOULD INCLUDE ALL MARINE
ENGINEERS ON ALL FLOATING PLANTS WITHIN EACH DISTRICT AND NOT BE LIMITED
TO EMPLOYEES ON SELF-PROPELLED HOPPER AND SIDE CASTING DREDGES.
UNDER EXECUTIVE ORDER 10988, SEVERAL OF THE ACTIVITY'S DISTRICTS
ACCORDED EXCLUSIVE RECOGNITION TO CERTAIN LABOR ORGANIZATIONS INCLUDING
THE MEBA, IN DISTRICT-WIDE UNITS. THREE OF THE DISTRICT-WIDE UNITS
REPRESENTED BY THE MEBA WERE COMPRISED OF ALL MARINE ENGINEERS WORKING
ON EITHER SELF-PROPELLED HOPPER OR SIDE CASTING DREDGES OR BOTH. THE
UNIT DESCRIPTIONS IN THREE OTHER DISTRICTS WHERE THE MEBA WAS ACCORDED
EXCLUSIVE RECOGNITION INCLUDED ALL MARINE ENGINEERS ON ALL OF THE
RESPECTIVE DISTRICT'S FLOATING PLANTS.
THE ACTIVITY IS ENTRUSTED WITH THE MAINTENANCE AND CONSTRUCTION OF
RIVERS, HARBORS AND WATERWAYS TO INSURE THAT CHANNEL DEPTHS OF ALL
NAVIGABLE WATERS ARE MAINTAINED AT LEVELS ESTABLISHED BY THE CONGRESS.
IT IS DIVIDED GEOGRAPHICALLY INTO 42 DISTRICTS THROUGHOUT THE UNITED
STATES. OF THE 42, THERE ARE ONLY 8 DISTRICTS WHICH OPERATE
SELF-PROPELLED HOPPER OR SIDE CASTING DREDGES. IN ADDITION TO
SELF-PROPELLED HOPPER AND SIDE CASTING DREDGES, SOME OF THE ACTIVITY'S
DISTRICTS INCLUDING CERTAIN DISTRICTS COVERED BY THE PETITION IN THE
SUBJECT CASE, OPERATE OTHER TYPES OF DREDGES, TUG BOATS, SNAG BOATS,
SURVEY BOATS AND OTHER MOTOR VESSELS ON WHICH MARINE ENGINEERS ARE
ASSIGNED.
EACH DISTRICT IS SUPERVISED BY A DISTRICT ENGINEER, WHO IS A COLONEL
IN THE UNITED STATES ARMY. UNDER THE DISTRICT ENGINEER IS THE CHIEF OF
THE DISTRICT OPERATIONS DIVISION, WHO IS RESPONSIBLE FOR ALL THE
CIVILIAN WORK PERFORMED WITHIN THE DISTRICT. THE NEXT LEVEL OF
SUPERVISION EMANATES FROM THE CHIEF OF NAVIGATION AND MAINTENANCE
BRANCH, WHO MAKES ASSIGNMENTS CONCERNING THE DAILY WORK ACTIVITIES OF
THE DREDGES WITHIN A PARTICULAR DISTRICT. THE CHIEF OF THE NAVIGATION
AND MAINTENANCE BRANCH DIRECTS THE WORK OF THE MASTERS ABOARD THE
DREDGES. THEY, IN TURN, SUPERVISE THE WORK OF THE CHIEF AND ASSISTANT
CHIEF ENGINEERS, WHO SUPERVISE THE LICENSED MARINE ENGINEERS.
THE DUTIES OF THE MARINE ENGINEERS INCLUDE, AMONG OTHER THINGS, THE
MAINTENANCE OF THE BOILER, THE PROPULSION UNITS, THE AUXILIARY UNITS
WHICH SUPPLY WATER, HEAT, ELECTRICITY AND REFRIGERATION, AS WELL AS THE
DREDGING AND RELATED HYDRAULIC EQUIPMENT ABOARD THE DREDGE. MARINE
ENGINEERS MUST BE LICENSED BY THE UNITED STATES COAST GUARD AS EITHER
CHIEF, ASSISTANT CHIEF, FIRST, SECOND, OR THIRD ENGINEERS. LICENSES ARE
ISSUED TO MARINE ENGINEERS BY THE COAST GUARD ON THE BASIS OF VESSEL
HORSE POWER, THE VESSEL'S TYPE OF PROPULSION UNIT, LENGTH OF SERVICE AS
MARINE ENGINEER IN THE NEXT LOWEST LICENSE CATEGORY AND THE SUCCESSFUL
COMPLETION OF AN EXAMINATION.
MARINE ENGINEERS SERVE PRIMARILY AS WATCH ENGINEERS ABOARD DREDGES.
ENGINEERS, SO EMPLOYED, GENERALLY STAND WATCHES OF FOUR HOURS ON AND
EIGHT HOURS OFF DUTY. IN ADDITION TO WATCH ENGINEERS, THE ACTIVITY ALSO
EMPLOYS DAY ENGINEERS WHO WORK 8 HOURS EACH DAY. THE FACTORS
DETERMINING WHETHER AN ENGINEER STANDS WATCH OR IS A DAY WORKER DEPENDS
ON THE TYPE AND WORK SCHEDULE OF EACH DREDGE.
THE MARINE ENGINEERS IN THE PETITIONED FOR UNIT WORK ON
SELF-PROPELLED HOPPER OR SIDE CASTING DREDGES. A BOTTOM DUMP DREDGE, A
TYPE OF HOPPER DREDGE, PUMPS MATERIALS OFF THE BOTTOM OF THE CHANNEL AND
DEPOSITS IT IN BINS ON THE DREDGE. THE MATERIAL IS THEN TRANSPORTED
ABOARD THE DREDGE TO AREAS WHERE THERE ARE DEEP HOLES AND IT IS THEN
DUMPED INTO THE WATER. A DIRECT PUMP OUT DREDGE, WHICH IS ALSO A HOPPER
DREDGE, DEPOSITS DREDGED MATERIALS IN BINS ALONG THE SHORE. A SIDE
CASTING DREDGE PUMPS DREDGED MATERIALS THROUGH PIPES DISCHARGING IT
ALONG THE SHORE. UNLIKE THE PREVIOUS TWO MENTIONED DREDGES, HOWEVER, IT
DOES NOT DEPOSIT THE DREDGED MATERIAL IN BINS. SOME OF THE DREDGES
OPERATED BY THE ACTIVITY'S DISTRICTS POSSESS ALL OF THE THREE ABOVE
MENTIONED CAPABILITIES, AND OTHERS POSSESS ONLY ONE OR TWO OF THE
DIFFERENT FUNCTIONS. AN ENGINEER ASSIGNED TO A DREDGE WHICH POSSESSES
ALL THREE OF THE ABOVE LISTED CAPABILITIES WOULD HAVE MORE KNOWLEDGE AND
EXPERIENCE BECAUSE OF THE INCREASED COMPLEXITY OF THE EQUIPMENT.
NEVERTHELESS, HE MIGHT POSSESS THE SAME RATED LICENSE AS THAT HELD BY AN
ENGINEER ON A DREDGE WHICH POSSESSED ONLY ONE OF THE ABOVE LISTED
CAPABILITIES.
IN ADDITION TO THE ABOVE DESCRIBED SELF-PROPELLED HOPPER AND SIDE
CASTING DREDGES, MANY DISTRICTS, INCLUDING AT LEAST FIVE OF THE EIGHT
DISTRICTS COVERED IN THE PETITION IN THE SUBJECT CASE, EMPLOY LICENSED
MARINE ENGINEERS ON DREDGES AND OTHER VESSELS WHICH ARE NOT INCLUDED IN
THE UNIT SOUGHT BY THE MEBA. THESE LICENSED MARINE ENGINEERS WORK ON
OTHER TYPES OF DREDGES, TUGBOATS, TOW BOATS, SURVEY BOATS AND OTHER
MOTOR VESSELS. THEY PERFORM DUTIES WHICH ARE SIMILAR IN NATURE TO THAT
PERFORMED BY THE LICENSED MARINE ENGINEERS IN THE UNIT SOUGHT BY THE
MEBA.
UNDER THE PROVISIONS OF EXECUTIVE ORDER 10988, THE ACTIVITY ACCORDED
EXCLUSIVE RECOGNITION TO THE MEBA IN THE FORMER'S PHILADELPHIA,
JACKSONVILLE AND GALVESTON DISTRICTS FOR UNITS COMPOSED OF, NOT ONLY
THOSE MARINE ENGINEERS SOUGHT IN THE SUBJECT CASE, BUT ALSO, LICENSED
MARINE ENGINEERS WORKING ON OTHER TYPES OF DREDGES AND FLOATING PLANTS.
ALSO, THE RECORD ESTABLISHES THAT THERE ARE SEVERAL DISTRICTS WHICH DO
NOT OPERATE HOPPER OR SIDE CASTING DREDGES, BUT, NEVERTHELESS, EMPLOY
MARINE ENGINEERS ON OTHER TYPES OF DREDGES AND FLOATING PLANTS. NONE OF
THESE LICENSED MARINE ENGINEERS ARE SOUGHT BY THE MEBA IN ITS CLAIMED
UNIT.
BASED ON THE FOREGOING, I FIND IN ACCORDANCE WITH THE ACTIVITY'S VIEW
THAT THE UNIT SOUGHT BY THE MEBA DOES NOT CONSTITUTE AN APPROPRIATE UNIT
WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491. AS NOTED
ABOVE, THE RECORD DEMONSTRATES THAT MANY OF THE ACTIVITY'S DISTRICTS,
INCLUDING SOME OF THE SAME DISTRICTS COVERED BY THE PETITION, EMPLOY
REPRESENTED AND UNREPRESENTED LICENSED MARINE ENGINEERS WHO POSSESS
SIMILAR SKILLS AND PERFORM SIMILAR JOB FUNCTIONS AS THOSE PERFORMED BY
THE LICENSED MARINE ENGINEERS WORKING ON HOPPER OR SIDE CASTING DREDGES.
IN THESE CIRCUMSTANCES REASONABLE BASIS DOES NOT EXIST FOR THE
ESTABLISHMENT OF A UNIT COMPRISED SOLELY OF LICENSED MARINE ENGINEERS
WORKING ON THE ACTIVITY'S SELF-PROPELLED HOPPER OR SIDE CASTING DREDGES.
SUCH A UNIT, IN MY VIEW, WOULD FRAGMENT EXISTING EXCLUSIVELY
REPRESENTED BARGAINING UNITS IN CERTAIN OF THE ACTIVITY'S DISTRICTS
WHERE OTHER LICENSED MARINE ENGINEERS, IN ADDITION TO THOSE ON HOPPER
AND SIDE CASTING DREDGES, ARE REPRESENTED EXCLUSIVELY AND ALSO CREATE
RESIDUAL GROUPS OF UNREPRESENTED LICENSED MARINE ENGINEERS IN OTHER OF
THE ACTIVITY'S DISTRICTS WHO PERFORM JOBS WHICH ARE SIMILAR TO THOSE
PERFORMED BY EMPLOYEES IN THE PETITIONED FOR UNIT. I CONCLUDE,
THEREFORE, THAT THE FRAGMENTED UNIT SOUGHT BY THE MEBA WOULD SERIOUSLY
HAMPER EFFECTIVE DEALINGS, WOULD NOT CONTRIBUTE TO THE PROMOTION OF
EFFICIENT AGENCY OPERATIONS AND THAT THE EMPLOYEES IN THE REQUESTED UNIT
DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST.
ACCORDINGLY, I SHALL DISMISS THE PETITION HEREIN.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 46-1704(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 30, 1971
/1/ DURING THE HEARING THE ACTIVITY FILED A MOTION TO DISMISS THE
PETITION IN THE SUBJECT CASE BASED ON ITS CONTENTION THAT THE UNIT
SOUGHT WAS INAPPROPRIATE. THE HEARING OFFICER REFERRED THE MOTION TO
THE ASSISTANT SECRETARY. IN VIEW OF MY DISPOSITION WITH RESPECT TO THE
PETITION HEREIN, IT WAS CONSIDERED UNNECESSARY TO PASS UPON THE
ACTIVITY'S MOTION TO DISMISS.
/2/ MEBA ALSO FILED A MOTION TO STRIKE PORTIONS OF THE ACTIVITY'S
BRIEF ON GROUNDS THAT SUCH PORTIONS WERE UNSUBSTANTIATED BY RECORD
TESTIMONY, INASMUCH AS THE EVIDENCE ADDUCED AT THE HEARING ADEQUATELY
SETS FORTH THE FACTS NECESSARY TO REACH A DETERMINATION OF THE UNIT
ISSUES IN THIS REPRESENTATION PROCEEDING, IT WAS CONSIDERED UNNECESSARY
TO DECIDE WHETHER THE MEBA'S MOTION SHOULD BE GRANTED.
1 A/SLMR 18; P. 118; CASE NOS. 31-3179, 31-3218; MARCH 30, 1971.
BOSTON NAVAL SHIPYARD, NAVY DEPARTMENT
A/SLMR NO. 18
THIS CASE INVOLVED A CONSOLIDATED REPRESENTATION PROCEEDING REGARDING
PETITIONS FILED BY INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO (IAM) AND BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1088, (AFGE) SEEKING CRAFT SEVERANCE ELECTIONS
AMONG CERTAIN EMPLOYEES AT THE BOSTON NAVAL SHIPYARD. THE IAM SOUGHT A
UNIT CONSISTING ESSENTIALLY OF MACHINISTS AND RELATED CLASSIFICATIONS,
WHILE THE UNIT SOUGHT BY THE AFGE INVOLVED PRINCIPALLY PIPECOVERERS AND
INSULATORS AND RELATED CATEGORIES. BOTH PETITIONED FOR GROUPS HAVE BEEN
INCLUDED IN AN ACTIVITY-WIDE UNIT OF ALL WAGE BOARD EMPLOYEES, EXCLUDING
PATTERNMAKERS AND PLANNERS, ESTIMATORS AND PROGRESSMEN SINCE 1964 WHEN
THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) OBTAINED
EXCLUSIVE RECOGNITION THROUGH ELECTION.
BOTH THE ACTIVITY AND THE NAGE TOOK THE POSITION THAT BOTH UNITS
SOUGHT WERE INAPPROPRIATE BECAUSE (1) THEY WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF OPERATIONS, (2) THE HISTORY OF BARGAINING HAD
BEEN ON THE BASIS OF AN ACTIVITY-WIDE UNIT IN WHICH THE INTERESTS OF THE
EMPLOYEES SOUGHT HAD BEEN FULLY REPRESENTED, (3) OF THE HIGH DEGREE OF
INTEGRATION OF WORK PROCESSES AS WELL AS THE EXTENSIVE MOVEMENT OF
EMPLOYEES THROUGHOUT THE SHIPYARD. IN SUPPORT OF ITS PETITION, THE IAM
STRESSED THE CRAFT BASIS OF MOST OF THE CLASSIFICATIONS SOUGHT AS WELL
AS THE OTHER MACHINIST RELATED DUTIES IN THE REMAINING CLASSIFICATIONS
SOUGHT BY ITS PETITION; THE HISTORY OF SEPARATE REPRESENTATION FOR
PATTERNMAKERS AND PLANNERS, ESTIMATORS AND PROGRESSMEN, AND THE FACT
THAT THE INTEGRATED NATURE OF THE OPERATIONS DID NOT PRECLUDE FINDING
THE CRAFT UNIT SOUGHT AS BEING APPROPRIATE. THE AFGE CONTENDED THAT A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST EXISTED AMONG THE EMPLOYEES
THEY SOUGHT AND THEREFORE THEY CONSTITUTED AN APPROPRIATE UNIT.
UPON REVIEW OF THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT
SECRETARY:
(1) DISMISSED BOTH PETITIONS ON THE BASIS OF THE POLICY ANNOUNCED IN
UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, NAMELY,
THAT WHERE THE EVIDENCE SHOWS AN ESTABLISHED, EFFECTIVE AND FAIR
COLLECTIVE BARGAINING RELATIONSHIP IS IN EXISTENCE, SEVERANCE FROM THE
UNIT WILL NOT BE PERMITTED EXCEPT UNDER UNUSUAL CIRCUMSTANCES.
(2) CONCLUDED THAT IN VIEW OF THE INTEGRATED NATURE OF THE
OPERATIONS, AND PARTICULARLY THE HISTORY OF BARGAINING IN WHICH
REPRESENTATION HAS BEEN ACCORDED TO THE EMPLOYEES FOR WHOM SEPARATE
UNITS ARE SOUGHT, AS WELL AS THE ABSENCE OF ANY UNUSUAL CIRCUMSTANCES
WARRANTING A DIFFERENT CONCLUSION, THAT THE ANNOUNCED POLICY IN A/SLMR
NO. 8 WOULD BE EFFECTUATED BY THE PRESENT BARGAINING UNIT REMAINING
INTACT.
BOSTON NAVAL SHIPYARD,
NAVY DEPARTMENT
AND
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-1
BOSTON NAVAL SHIPYARD,
NAVY DEPARTMENT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1088
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-1
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM O'LOUGHLIN.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING THE BRIEFS FILED
HEREIN, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. FOR THE REASONS DISCUSSED BELOW, NO QUESTION CONCERNING THE
REPRESENTATION OF CERTAIN EMPLOYEES OF THE ACTIVITY EXISTS WITHIN THE
MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491.
3. IN CASE NO. 31-3179, THE PETITIONER, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, HEREIN CALLED IAM, SEEKS AN
ELECTION IN THE FOLLOWING UNIT: ALL MACHINISTS, MACHINISTS
(MAINTENANCE), MACHINISTS (MARINE), MACHINISTS (SHIP'S WEAPONS), DIE
SINKERS, TOOLMAKERS, TOOLROOM ATTENDANTS, TOOLROOM MECHANICS, INSTRUMENT
MECHANICS, INSTRUMENT MECHANICS (MECHANICAL), INSTRUMENT MECHANICS
(OPTICAL), MACHINE OPERATORS, APPLICABLE MECHANICS (LIMITED),
NUMERICALLY CONTROLLED MACHINE TOOL PROGRAMMER, NUMERICALLY CONTROLLED
MACHINE TOOL MECHANIC, HELPERS, APPRENTICES, PRODUCTION SHOP PLANNERS,
INSPECTORS (SHIP'S MECHANICAL SYSTEMS), EXCLUDING ALL OTHER EMPLOYEES
/1/ INCLUDING GUARDS, MANAGERIAL AND SUPERVISORY.
AS AN ALTERNATIVE UNIT THE IAM SEEKS THE SAME UNIT AS DESCRIBED
ABOVE, EXCLUDING TOOLROOM ATTENDANTS, TOOLROOM MECHANICS, PRODUCTION
SHIP PLANNERS, AND INSPECTORS (SHIP'S MECHANICAL SYSTEMS). IN SUPPORT
OF ITS PETITION, THE IAM STRESSED THE CRAFT BASIS OF MOST OF THE
CLASSIFICATIONS SOUGHT AS WELL AS THE OTHER MACHINIST RELATED DUTIES IN
THE REMAINING CLASSIFICATIONS SOUGHT BY ITS PETITION; THE HISTORY OF
SEPARATE REPRESENTATION FOR PATTERNMAKERS AND PLANNERS, ESTIMATORS AND
PROGRESSMEN; AND THE FACT THAT THE INTEGRATED NATURE OF THE OPERATIONS
DID NOT PRECLUDE FINDING THE CRAFT UNIT SOUGHT AS BEING APPROPRIATE.
IN CASE NO. 31-3218, THE PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1088, HEREIN CALLED AFGE, SEEKS AN
ELECTION IN A UNIT OF PIPECOVERERS AND INSULATORS INCLUDING PIPECOVERER
HELPERS, PIPECOVERER LIMITED AND APPRENTICES IN SHOP 56, PIPECOVERERS
AND HELPERS IN THE PUBLIC WORKS DEPARTMENT AND PIPECOVERER INSTRUCTOR
AND PIPECOVERER /2/ LAYOUT. IN SUPPORT OF ITS PETITION THE AFGE
CONTENDED THAT A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST EXISTED
AMONG THE EMPLOYEES SOUGHT.
THE ACTIVITY TAKES THE POSITION THAT THE RESPECTIVE UNITS SOUGHT BY
THE IAM AND THE AFGE ARE INAPPROPRIATE BECAUSE (1) THEY LACK THE
NECESSARY COMMUNITY OF INTEREST AND WOULD NOT PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF OPERATIONS; (2) THE HISTORY OF BARGAINING AT THE
SHIPYARD HAS BEEN ON THE BASIS OF AN ACTIVITY-WIDE UNIT IN WHICH THE
INTERESTS OF THE EMPLOYEES SOUGHT BY BOTH PETITIONERS HAVE BEEN
REPRESENTED AT GRIEVANCE AND ADVERSE ACTION HEARINGS BY THE INCUMBENT
REPRESENTATIVE, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R1-1, HEREIN CALLED NAGE; AND (3) THE HIGH DEGREE OF INTEGRATION OF
WORK PROCESSES REQUIRES THE INTERPLAY OF A NUMBER OF OCCUPATIONAL
SKILLS, WHEREAS ONLY A PORTION OF THESE ARE PERFORMED BY THE
CLASSIFICATIONS IN EACH OF THE UNITS SOUGHT. THE NAGE CONTENDS THAT
ONLY AN OVERALL UNIT, AS PRESENTLY CONSTITUTED, IS APPROPRIATE AND
THEREFORE THE RESPECTIVE UNITS SOUGHT ARE INAPPROPRIATE.
FOLLOWING AN ARBITRATOR'S DECISION, DATED JULY 13, 1963, IN WHICH A
UNIT OF ALL UNGRADED EMPLOYEES, EXCLUDING PATTERNMAKERS, WAS FOUND
APPROPRIATE, AN ELECTION WAS HELD IN WHICH THE NAGE OBTAINED EXCLUSIVE
RECOGNITION. A TWO-YEAR CONTRACT BETWEEN THE NAGE AND THE ACTIVITY WAS
ENTERED INTO ON DECEMBER 15, 1964 FOLLOWING WHICH, AFTER A SECOND
ELECTION IN WHICH THE NAGE ULTIMATELY WAS CERTIFIED, A SECOND TWO-YEAR
CONTRACT WAS NEGOTIATED ON FEBRUARY 12, 1968. IN ADDITION TO
PATTERNMAKERS HAVING BEEN REPRESENTED IN A SEPARATE UNIT, NAGE, LOCAL
R1-150 WAS GRANTED EXCLUSIVE RECOGNITION IN 1968 FOR A UNIT OF PLANNERS,
ESTIMATORS AND PROGRESSMEN IN THE PLANNING AND PRODUCTION DEPARTMENT,
WHO WERE ORIGINALLY INCLUDED IN THE FIRST CERTIFICATION.
THE BOSTON NAVAL SHIPYARD IS PRIMARILY ENGAGED IN SERVICING THE FLEET
OF THE UNITED STATES NAVY. THE SHIPYARD OCCUPIES AN AREA OF
APPROXIMATELY 84 ACRES CONTAINING ABOUT 161 BUILDINGS, 24 PIERS AND
SEVERAL SHIPWAYS. AUTHORIZED WORK, UNDER THE OVERALL SUPERVISION OF THE
SHIPYARD'S COMMANDER, INCLUDES REPAIR AND CONVERSION, ALTERATION,
DRY-DOCKING AND OUTFITTING. THE SHIPYARD ALSO PERFORMS MANUFACTURING,
RESEARCH AND DEVELOPMENT WORK AS WELL AS PROVIDING TECHNICAL ELECTRONICS
SUPPORT TO SHIPS AND SHORE STATIONS.
THE PRODUCTION DEPARTMENT UNDER THE OVERALL SUPERVISION OF A MILITARY
PRODUCTION OFFICER, PERFORMS ALL SHIPBUILDING AND REPAIR WORK IN
ACCORDANCE WITH WORK INSTRUCTIONS ISSUED BY THE PLANNING DEPARTMENT.
OVER 3,000 EMPLOYEES, OR ABOUT 60 PERCENT OF THE 5100 UNGRADED EMPLOYEES
IN THE OVERALL UNIT, WORK IN THE PRODUCTION DEPARTMENT. APPROXIMATELY
20 SHOPS, EACH ENGAGED IN A PARTICULAR FUNCTION, COMPRISE THE OPERATIONS
OF THIS DEPARTMENT. THESE SHOPS, IN TURN, MAKE UP 4 OPERATIONAL GROUPS,
DESIGNATED AS MECHANICAL GROUP, ELECTRICAL/ELECTRONICS GROUP, STRUCTURAL
GROUP, AND /3/ SERVICE GROUP.
EACH GROUP, WITH THE EXCEPTION OF ROPEWALK, IS HEADED BY A GROUP
SUPERINTENDENT. SUBORDINATE SUPERVISORS IN DESCENDING ORDER, ARE KNOWN
AS SUPERINTENDENT II, SUPERINTENDENT I, GENERAL FOREMAN II, GENERAL
FOREMAN I, AND FOREMAN (LEADINGMAN).
OF THE SEVEN SHOPS COMPRISING THE MECHANICAL GROUP, EMPLOYING ABOUT
1,200 EMPLOYEES AS OF JUNE 1, 1970, THE IAM SEEKS TO INCLUDE ALL
CLASSIFICATIONS IN THE INSIDE MACHINE SHOP 31, OUTSIDE MACHINE SHOP 38,
AND MORE THAN HALF OF THE 19 CLASSIFICATIONS IN CENTRAL TOOL SHOP 06.
THESE THREE SHOPS EMPLOYED APPROXIMATELY 740 EMPLOYEES OR APPROXIMATELY
60 PERCENT OF THE TOTAL NUMBER IN THE MECHANICAL GROUP. INSIDE MACHINE
SHOP 31 IS A FULLY-EQUIPPED MACHINE SHOP CAPABLE OF PERFORMING MACHINING
OPERATIONS ON MACHINERY AND ORDNANCE ITEMS AND BALANCING VARIABLE SIZES
OF TURBINE ROTARS, PROPELLERS, ETC. OUTSIDE MACHINE SHOP 38 REMOVES,
OVERHAULS AND REPAIRS IN PLACE ALL MACHINERY ON BOARD SHIP AS WELL AS
ASSISTING IN DOCK TRIALS AND SEA TRIALS. CENTRAL TOOL SHOP 06 IS THE
MAINTENANCE SHOP FOR THE SHIPYARD. IT IS RESPONSIBLE FOR DESIGNING AND
MAINTAINING DIES, JIGS, CUTTING TOOLS AND MEASURING INSTRUMENTS. THE
SHOP PLANNING STAFF, SHOP 49, ACTS AS A LIAISON BETWEEN THE PLANNERS,
ESTIMATORS, SCHEDULERS AND PROGRESSMEN, ON THE ONE HAND, AND THE VARIOUS
SHOPS WITHIN THE MECHANICAL GROUP. IT REVIEWS JOB ORDERS TO VERIFY
AVAILABILITY OF MANPOWER, MATERIALS, TOOLS AND MACHINERY. THE IAM SEEKS
ABOUT 4 OF THE 10 JOB CLASSIFICATIONS IN THIS PARTICULAR SHOP. IN THE
REMAINING THREE SHOPS, NAMELY, FORGE, FOUNDRY AND PIPE AND COPPER, NONE
HAS ANY CLASSIFICATIONS AFFECTED BY THE IAM PETITION. HOWEVER, WITH
REGARD TO THE PIPE AND COPPER SHOP 56, THE AFGE SEEKS TO INCLUDE 6
PIPECOVERERS AND INSULATOR CLASSIFICATIONS, INCLUDING APPRENTICES,
HELPERS AND INSTRUCTORS. EXCLUDED HOWEVER, ARE THE REMAINING 12
CLASSIFICATIONS IN THIS SHOP, AMONG THEM BEING PIPEFITTERS,
COPPERSMITHS, REFRIGERATION AND AIR CONDITIONING MECHANICS, APPRENTICES
AND HELPERS.
THE EMPLOYEES WHO WORK IN THE VARIOUS CLASSIFICATIONS IN THE
MECHANICAL GROUP OF THE PRODUCTION DEPARTMENT DIVIDE THEIR TIME IN
VARYING PROPORTIONS BETWEEN THEIR RESPECTIVE SHOPS AND ABOARD SHIP. THE
INSIDE MACHINIST IN SHOP 31, WHOSE WORK INVOLVES OPERATING STANDARD
MACHINE TOOLS USED IN REPAIRING SEA VALVES AND PARTS FOR PROPULSION
MACHINERY, INCLUDING REBUILDING INTERNAL COMBUSTION ENGINES, SPENDS
ABOUT 90 PERCENT OF HIS TIME IN THE SHOP. EMPLOYEES IN THE
CLASSIFICATION OF MACHINIST (MARINE), SHOP 38 SPEND ABOUT 80 PERCENT OF
THEIR TIME ABOARD SHOP MAKING LAYOUTS FOR MACHINERY FOUNDATIONS AND
INSTALLATIONS, OVERHAULING MAIN PROPULSION MACHINERY AND REPAIRING AND
INSTALLING MECHANICAL HYDRAULIC EQUIPMENT. EMPLOYEES IN THE MAINTENANCE
MACHINIST CLASSIFICATION IN SHOP 06, WHOSE WORK INVOLVES, IN PART, THE
REPAIR AND INSTALLATION OF VARIOUS TYPES OF INDUSTRIAL MACHINERY, SUCH
AS MACHINE SHOP AND POWER PLANT EQUIPMENT, SPEND ABOUT HALF OF THEIR
WORKING TIME ABOARD SHIP AND THE REMAINING HALF IN THE SHOP. THE
TOOLROOM MECHANIC AND THE MACHINE OPERATOR WORK FULLTIME IN THE SHOP
WHEREAS THE MECHANIC LIMITED, WHOSE LEVEL OF SKILL IS BETWEEN THAT OF A
HELPER AND A JOURNEYMAN, DIVIDES HIS TIME EQUALLY BETWEEN SHOP AND SHIP.
THE HELPER AND APPRENTICE CATEGORIES SPEND APPROXIMATELY 80 PERCENT OF
THEIR TIME ABOARD SHIP AND 10 PERCENT IN THE SHOP. FINALLY, THE
PRODUCTION SHOP PLANNER SPENDS 100 PERCENT OF HIS TIME IN THE SHOP.
THE ELECTRICAL ELECTRONICS GROUP CONSISTS OF THREE SHOPS IN ADDITION
TO A SHOP PLANNING STAFF, NAMELY, WEAPONS SHOP 36, ELECTRICAL SHOP 51
AND ELECTRONICS SHOP 67. SLIGHTLY LESS THAN 1,000 EMPLOYEES ARE
EMPLOYED IN THE LATTER THREE SHOPS. THE IAM SEEKS TO INCLUDE
PRINCIPALLY THE INSTRUMENT MECHANICS AND THE MACHINIST (SHIP'S WEAPONS)
CLASSIFICATIONS, IN ADDITION TO APPRENTICES AND HELPERS IN WEAPONS SHOP
36, THESE CLASSIFICATIONS COMPRISING A LITTLE MORE THAN HALF OF THE
TOTAL CLASSIFICATIONS IN THIS PARTICULAR SHOP. NEITHER THE ELECTRIC NOR
THE ELECTRONICS SHOP HAS ANY CLASSIFICATIONS WHICH FALL WITHIN THE UNIT
SOUGHT BY THE IAM. THUS, OF THE APPROXIMATELY 1,000 EMPLOYEES IN THE
ELECTRICAL/ELECTRONICS SHOP GROUP, A TOTAL OF 152 EMPLOYEES ARE INVOLVED
WITHIN THE CLASSIFICATIONS SOUGHT BY THE IAM. THESE EMPLOYEES
CONSTITUTE APPROXIMATELY 15 PERCENT OF THE TOTAL EMPLOYEES IN THIS GROUP
WITHIN THE PRODUCTION DEPARTMENT. WEAPONS SHOP 36 IS ENGAGED IN MAKING
REPAIRS AND INSTALLATIONS OF ALL WEAPONS SYSTEMS AND ASSOCIATED
COMPONENTS SUCH AS GUN MOUNTS, TURRETS, ETC. ELECTRICAL SHOP 51 IS
RESPONSIBLE FOR THE INSTALLATION, REPAIR AND TESTING OF ALL ELECTRICAL
EQUIPMENT ON BOARD SHIP AS WELL AS THE REPAIR AND ADJUSTMENT OF
COMPASSES AND ASSOCIATED EQUIPMENT, WHEREAS ELECTRONICS SHOP 67 REPAIRS
AND INSTALLS ALL ELECTRONICS SYSTEMS.
BETWEEN 65 PERCENT AND 70 PERCENT OF THE WORK PERFORMED BY THE
ELECTRICAL/ELECTRONICS GROUP IS PERFORMED ABOARD SHIP. IN SO DOING, THE
EMPLOYEES IN THIS GROUP WORK ALONGSIDE OTHER JOB CLASSIFICATIONS
INCLUDING SHIPFITTERS, WELDERS, MACHINIST (MARINE), PIPEFITTERS, RIGGERS
AND LABORERS. THIS PRACTICE OF INTEGRATING THE WORK OF THE MACHINISTS
WITH OTHER CRAFTS IS MOST PREVALENT IN THE OPERATIONAL TESTS OF
ELECTRONICS OR ORDNANCE SYSTEMS. WITH RESPECT TO SUCH INTEGRATION, THE
CLASSIFICATION WHICH IS RESPONSIBLE FOR PERFORMING MOST OF THE WORK IS
IN CHARGE /4/ OF THAT PARTICULAR JOB.
AS INDICATED ABOVE, THE STRUCTURAL AND SERVICE GROUPS COMPLETE THE
MAKEUP OF THE PRODUCTION DEPARTMENT. THE IAM DOES NOT SEEK TO INCLUDE
ANY OF THE CLASSIFICATIONS IN EITHER OF THESE GROUPS INASMUCH AS THEY
INVOLVE UNRELATED FUNCTIONS IN WHICH THE PRINCIPLE CLASSIFICATIONS
INCLUDE SHIPFITTERS, SHEET METAL, WELDERS AND BOILERMAKERS AS WELL AS
SUCH SERVICE ACTIVITIES AS WOODWORKING,PAINTING, RIGGING, ETC.
THE PUBLIC WORKS DEPARTMENT, THE SECOND OF THE THREE MAJOR
OPERATIONAL DEPARTMENTS INVOLVED HEREIN, DESIGNS, CONSTRUCTS AND
MAINTAINS THE PHYSICAL PLANT AND UTILITIES OF THE SHIPYARD. THE SHOPS
DIVISION IS ONE OF FOUR PRINCIPLE DIVISIONS COMPRISING THIS DEPARTMENT,
AND IS MADE UP OF THE MAINTENANCE, UTILITIES AND TRANSPORTATION
BRANCHES. THE IAM SEEKS TO INCLUDE THE CLASSIFICATION OF MACHINIST
(MAINTENANCE) WHICH IS ONE OF ELEVEN CLASSIFICATIONS IN THE UTILITIES
BRANCH. THIS POSITION IS RESPONSIBLE FOR MAKING REPAIRS OF VARIOUS
TYPES OF MACHINES AND INSTALLATIONS OF POWER PLANT EQUIPMENT INCLUDING
ENGINE ROOM AND PUMPING PLANT EQUIPMENT.
THE QUALITY AND RELIABILITY ASSURANCE DEPARTMENT, HEADED BY A
CIVILIAN DIRECTOR, IS RESPONSIBLE FOR MAINTAINING QUALITY STANDARDS. OF
THE FOUR DIVISIONS COMPRISING THIS DEPARTMENT, ONLY THE INSPECTION
DIVISION HAS ANY CLASSIFICATION AFFECTED BY THE IAM PETITION, NAMELY,
INSPECTOR (SHIP'S MECHANICAL SYSTEMS). HIS FUNCTION IS TO OBSERVE TESTS
ON MAIN PROPULSION MACHINERY, BOILERS, AIR COMPRESSORS, ETC. TO
DETERMINE CONFORMANCE WITH SPECIFICATIONS AND GOOD MARINE PRACTICE.
THESE INSPECTIONS ARE CONDUCTED BOTH WITHIN THE SHOPS AND ON BOARD NAVAL
VESSELS.
THE CLASSIFICATION OF PIPECOVERER AND INSULATOR AND RELATED
CLASSIFICATIONS SOUGHT BY THE AFGE IN ITS PETITION ARE LOCATED IN THE
PUBLIC WORKS SHOP 07, PUBLIC WORKS DEPARTMENT AND IN THE PIPE AND COPPER
SHOP 56, MECHANICAL GROUP, PRODUCTION DEPARTMENT. THERE IS ONE EMPLOYEE
IN SHOP 07 AND ABOUT 56 EMPLOYEES IN SHOP 56 IN THESE CLASSIFICATIONS.
SHOP 07 IS RESPONSIBLE, GENERALLY, FOR NEW CONSTRUCTION OF PUBLIC WORKS
AND PUBLIC UTILITIES AND THE REPAIR AND ALTERATION OF BUILDINGS, ROADS,
WATERFRONT AND FACILITIES AND DISTRIBUTION SYSTEMS, ETC. SHOP 56 IS
RESPONSIBLE FOR THE FABRICATION AND REPAIR OF ALL PIPE, TUBING AND
RELATED EQUIPMENT; INSTALLATION AND REPAIR OF PLUMBING AND HEATING
FIXTURES AND AIR CONDITIONING AND REFRIGERATION SYSTEMS.
THE PIPECOVERER AND INSULATOR FABRICATES INSULATING MATERIALS AND
COVERS SHIPBOARD EQUIPMENT SUCH AS PIPES, TANKS, BOILERS, PUMPS AND AIR
DUCTS, USING CORK, FIBERBOARD, MINERAL WOOL BLANKETS AND UNIBESTOS.
APPROXIMATELY 80 PERCENT OF THE WORK OF THE EMPLOYEES IN THIS
CLASSIFICATION, INCLUDING HELPERS AND APPRENTICES, IS PERFORMED ABOARD
SHIP, THE REMAINING 20 PERCENT BEING PERFORMED IN THE SHOP. AS IN THE
CASE OF OTHER CRAFTS, PIPECOVERERS AND INSULATORS WORK CLOSELY WITH
PIPEFITTERS, REFRIGERATION AND AIR CONDITIONING MECHANICS AND
MACHINISTS.
APPRENTICESHIP PROGRAMS FOR APPROXIMATELY 27 OCCUPATIONS ARE
MAINTAINED ACTIVELY BY THE SHIPYARD. INCLUDED AMONG THESE TRADES ARE
MACHINIST (MAINTENANCE) AND TOOLMAKER, SHOP 06; MACHINIST, SHOP 31;
MACHINIST (SHIP'S WEAPONS), SHOP 36; MACHINIST (MARINE), SHOP 38; AND
PIPECOVERER AND INSULATOR, SHOP 56. EACH OF THE APPRENTICESHIP PROGRAMS
FOR THESE TRADES PROVIDES A FOUR-YEAR COURSE IN BOTH WORK EXPERIENCE AND
RELATED INSTRUCTION. THE NORMAL LINE OF PROGRESSION FOR AN APPRENTICE
WHO HAS COMPLETED HIS APPRENTICESHIP AS A MACHINIST, IS TO PROGRESS TO
THE JOB OF SHOP PLANNER OR SUPERVISOR. THERE IS NO NORMAL PROGRESSION
BETWEEN THE MACHINIST (SHIP'S WEAPONS) TO THAT OF INSTRUMENT MECHANIC
(OPTICAL) OR INSTRUMENT MECHANIC (MECHANICAL) INASMUCH AS THEY ARE
DIFFERENT TRADES.
THE SHIPYARD HAS A PRACTICE OF "LOANING" EMPLOYEES FROM ONE SECTION
TO ANOTHER WHERE THE WORK REQUIRES ADDITIONAL MANPOWER. EMPLOYEES WHO
ARE LOANED ARE NOT NECESSARILY IN THE SAME CLASSIFICATION AS THE OTHER
EMPLOYEES WHO NEED ASSISTANCE. FOR EXAMPLE, IN A PERIOD OF HEAVY
WORKLOAD DEMANDS UPON PIPECOVERERS AND INSULATORS, PIPEFITTERS MAY BE
LOANED TO WORK WITH THE FORMER. ALSO, A MACHINIST MAY BE LOANED TO WORK
IN ASSISTING A PIPEFITTER. WHILE WORKING IN THIS CAPACITY, THE
MACHINIST IS SUPERVISED BY THE PIPEFITTER BUT IS RATED BY HIS GENERAL
SUPERVISOR AND CONTINUES TO RECEIVE HIS BASIC PAY. GENERALLY, LOANS
LAST FROM 30 TO 60 DAYS DEPENDING UPON THE AMOUNT OF WORK INVOLVED.
OTHER ASPECTS OF WORKING CONDITIONS IN THE SHIPYARD INCLUDE THE FACT
THAT THE COLOR OF THE HAT WORN BY THE EMPLOYEE IS DETERMINED BY THE
PARTICULAR SHOP TO WHICH HE IS ASSIGNED, IRRESPECTIVE OF HIS OCCUPATION
OR TRADE. THUS, IN CENTRAL TOOL SHOP 06, THE ELECTRICIAN AND THE
MACHINIST WEAR THE SAME COLOR HAT. WITH RESPECT TO VACATION SCHEDULES,
APPROVAL IS GIVEN BY THE SUPERINTENDENT FOR ALL THE SHOPS UNDER HIS
SUPERVISION, WITHOUT REGARD TO ANY PARTICULAR OCCUPATION. IN ADDITION,
THE LOCATION AND USE OF TIME CLOCKS IS BASED UPON CONVENIENCE FOR THOSE
WORKING IN A PARTICULAR AREA. THUS, THERE ARE OUTSIDE CLOCK STATIONS ON
THE WATERFRONT WHERE THE EMPLOYEES CLOCK-IN IRRESPECTIVE OF THE
PARTICULAR TRADE OR OCCUPATIONAL GROUP INVOLVED.
IN SUMMARY, THE RECORD REVEALS A MARKED DEGREE OF INTEGRATION OF WORK
PROCESSES AS WELL AS EXTENSIVE MOVEMENT TO AND FROM WORK PLACES
THROUGHOUT THE SHIPYARD. A LARGE PERCENTAGE OF WORK BY THE MACHINISTS
IN SHOPS 31 AND ,8, AS WELL AS BY THE PRINCIPLE CLASSIFICATIONS IN THE
ELECTRICAL/ELECTRONICS GROUP IS PERFORMED ON BOARD SHIP, EACH PERFORMING
ITS ASSIGNED TASKS AND UTILIZING ITS PARTICULAR SKILLS IN THE REQUIRED
SEQUENCE OF OPERATIONS. IN ADDITION, SUCH PRACTICES AS COMMON-COLORED
HATS ASSIGNED TO A PARTICULAR SHOP, TIME CLOCKS USED BY DIFFERENT
CATEGORIES OF EMPLOYEES IRRESPECTIVE OF SKILL OR WORK AREA AND "LOANING"
OF EMPLOYEES TO ASSIST OTHER CLASSIFICATIONS, ARE UTILIZED TO AID IN
PROMOTING EFFICIENCY OF THE ACTIVITY'S OPERATIONS.
THE RECORD ALSO ESTABLISHES THAT A NUMBER OF THE CLASSIFICATIONS
SOUGHT BY BOTH PETITIONERS ARE RECOGNIZED CRAFTS AND THAT A LINE OF
PROGRESSION EXISTS WITHIN THE MACHINISTS CATEGORIES, PARTICULARLY IN THE
MECHANICAL GROUP, PRODUCTION DEPARTMENT. HOWEVER, FOR PURPOSES OF
CONCLUDING WHETHER THE REQUESTED UNIT BY EITHER PETITIONER MAY PROPERLY
BE SEVERED FROM THE EXISTING LARGER UNIT, CRAFT SKILLS AND TRAINING ARE
ONLY SOME OF MULTIPLE FACTORS TO BE CONSIDERED.
DURING THE PERIOD 1963-1969 APPROXIMATELY 140 CASES ARISING UNDER THE
ADMINISTRATIVE APPEALS PROCEDURES WERE PROCESSED BY THE ACTIVITY AND THE
NAFE, SIX OF WHICH INVOLVED EMPLOYEES IN THE UNIT PROPOSED BY THE IAM.
IN ADDITION, THE ACTIVITY PRESENTED EVIDENCE SHOWING A TOTAL OF
APPROXIMATELY 90 INFORMAL MEETINGS DURING THIS 6-YEAR PERIOD ATTENDED BY
REPRESENTATIVES OF THE NAGE AND THE ACTIVITY, INVOLVING SUCH SUBJECTS AS
WORKLOAD REQUIREMENTS, OVERTIME PROBLEMS, LOANS (I.E., TEMPORARY
ASSIGNMENT OF PERSONNEL), APPRENTICE TRAINING, ETC., AFFECTING
PARTICULARLY SHOPS 06, 31 AND 38 IN THE PRODUCTION DEPARTMENT. THE
RECORD FURTHER DISCLOSES THAT DURING THE PERIOD 1968-1970, THE NAGE
PROCESSED GRIEVANCES FOR APPROXIMATELY 50 EMPLOYEES FROM SHOPS 06, 31
AND 38 IN THE MECHANICAL GROUP OF THE PRODUCTION DEPARTMENT, AS WELL AS
SHOPS 36, 51 AND 56 IN THE ELECTRICAL/ELECTRONICS GROUP WITHIN THE
PRODUCTION DEPARTMENT. THE RANGE OF SUBJECTS INVOLVED IN THESE
GRIEVANCES DURING THIS LATTER TWO-YEAR PERIOD INCLUDED, AMONG OTHERS,
CHANGE OF HOURS; REQUESTS FOR ADVANCE SICK OR ANNUAL LEAVE; JURY DUTY
INFORMATION; DENIALS OF SICK LEAVE; REQUESTS FOR TRANSFER; LETTERS OF
WARNING; HOLIDAY PAY; LOSS OF PAY AND COMPENSATION CLAIMS.
BASED ON THE FOREGOING, IT IS CLEAR THAT BARGAINING FOR ALL WAGE
BOARD EMPLOYEES ON AN ACTIVITY-WIDE BASIS HAS CONTINUED TO THE PRESENT
AT THE BOSTON NAVAL SHIPYARD SINCE THE NAGE'S INITIAL CERTIFICATION /5/
IN 1964. DURING THIS PERIOD OF BARGAINING, THE INTERESTS OF THE
EMPLOYEES IN MANY OF THE CLASSIFICATIONS SOUGHT BY BOTH PETITIONERS HAVE
BEEN SERVED CONTINUOUSLY THROUGH RESORT TO THE NEGOTIATED GRIEVANCE
PROCEDURE ESTABLISHED BY THE SHIPYARD AND THE NAGE.
IN UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, I
CONSIDERED COMPARABLE CIRCUMSTANCES AS ARE INVOLVED IN THE SUBJECT
CASES, AND CONCLUDED THAT, ABSENT UNUSUAL CIRCUMSTANCES, A PROPOSED
SEVERANCE FROM AN ESTABLISHED LARGER UNIT WOULD NOT BE ALLOWED WHERE THE
EVIDENCE SHOWED THAT AN ESTABLISHED, EFFECTIVE AND FAIR COLLECTIVE
BARGAINING RELATIONSHIP EXISTED. IN WEIGHING THE INTEGRATED NATURE OF
THE OPERATIONS INVOLVED HEREIN AND PARTICULARLY THE HISTORY OF
BARGAINING ON AN ACTIVITY-WIDE BASIS, IN WHICH REPRESENTATION HAS BEEN
ACCORDED TO THE EMPLOYEES FOR WHOM SEPARATE UNITS ARE NOW SOUGHT, AND
THE ABSENCE OF ANY UNUSUAL CIRCUMSTANCES WARRANTING A DIFFERENT
CONCLUSION, I CONCLUDE THAT THE ANNOUNCED POLICY, NOTED ABOVE, IS BEST
EFFECTUATED BY THE PRESENT BARGAINING UNIT REMAINING INTACT.
ACCORDINGLY, HAVING FOUND THAT THE UNITS SOUGHT BY THE IAM AND THE AFGE,
LOCAL 1088, RESPECTIVELY, ARE INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, I SHALL DISMISS THEIR PETITIONS.
IT IS HEREBY ORDERED THAT THE PETITIONS IN CASES NOS. 31-3179 AND
31-3218 BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 30, 1971
/1/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/2/ NO EXPRESS EXCLUSIONS WERE SET FORTH IN THE AFGE'S PETITION AND
ITS PETITION WAS NOT AMENDED DURING THE HEARING.
/3/ IN ADDITION, SHOP 97, KNOWN AS ROPEWALK, WHICH PRODUCES HEMP AND
MANILA ROPE, IS PART OF THE PRODUCTION DEPARTMENT. NO EMPLOYEE IN THIS
OPERATION IS SOUGHT UNDER EITHER OF THE SUBJECT PETITIONS.
/4/ FOR EXAMPLE, THE WORK ON A FIRE CONTROL SYSTEM WITH GUNS,
INCLUDING ASSOCIATED RADAR, INVOLVES ELECTRICAL WORK BEING PERFORMED BY
THE FIRE CONTROL MECHANICS AND RADAR WORK BY THE ELECTRONICS EMPLOYEES -
NEITHER OF WHICH CLASSIFICATIONS IS INVOLVED IN THE UNIT SOUGHT BY THE
IAM - AS WELL AS THE HYDRAULIC OPERATIONS WORK BEING PERFORMED BY THE
MACHINISTS.
/5/ THE EXISTENCE OF SEPARATE UNITS FOR PATTERNMAKERS AS WELL AS FOR
PLANNERS, ESTIMATORS AND PROGRESSMEN DOES NOT, IN MY VIEW, LESSEN THE
HISTORICAL SIGNIFICANCE OF THE ACTIVITY-WIDE UNIT.
1 A/SLMR 17; P. 114; CASE NOS. 62-1757E, 62-1792E /2/ ; MARCH 18,
1971.
DEPARTMENT OF THE ARMY, ST. LOUIS DISTRICT,
CORPS OF ENGINEERS, ST. LOUIS, MISSOURI
A/SLMR NO. 17
THIS CASE, INVOLVING A REPRESENTATION PETITION FILED BY LOCAL R14-96,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE), PRESENTED THE
QUESTION WHETHER THE PETITIONED FOR UNIT, WHICH INCLUDED EMPLOYEES OF
THE ACTIVITY ASSIGNED TO ITS SERVICE BASE SECTION AND ITS LOCK AND DAM
SECTION, WAS APPROPRIATE. THE ACTIVITY AND THE INTERVENOR, THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 24 (NFFE) CONTENDED THAT THE
PROPOSED UNIT WAS INAPPROPRIATE BECAUSE IT WAS COMPOSED OF TWO
SEPARATELY IDENTIFIABLE UNITS OF EMPLOYEES WHO DID NOT SHARE A COMMUNITY
OF INTEREST WITH EACH OTHER.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT A
UNIT COMPOSED OF EMPLOYEES OF BOTH THE SERVICE BASE SECTION AND THE LOCK
AND DAM SECTION WAS NOT APPROPRIATE. HE NOTED IN THIS RESPECT THAT
THERE WAS NEITHER OVERLAPPING SUPERVISION NOR DIRECT OR NECESSARY
OPERATING RESPONSIBILITY BETWEEN THE TWO SECTIONS; THAT EACH SECTION
HAD A CLEARLY DISTINGUISHABLE MISSION; THAT EACH HAD ITS OWN PROGRAM
FOR TRAINING AND PROMOTIONS; THAT FOR THE PAST TEN YEARS THERE HAD BEEN
NO INTERCHANGE OF PERSONNEL BETWEEN THE TWO SECTIONS; AND THAT THEIR
WAGE SCALES AND HOURS OF WORK WERE DIFFERENT. ALSO NOTED WAS THE
ACTIVITY'S CONTENTION THAT A COMBINED UNIT OF BOTH SECTIONS WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF ITS OPERATIONS.
THE ASSISTANT SECRETARY ALSO FOUND THAT ENCOMPASSED WITHIN THE
PETITIONED FOR UNIT WAS AN APPROPRIATE UNIT COMPRISED OF EMPLOYEES IN
THE ACTIVITY'S SERVICE BASE SECTION. HE NOTED THAT THE EVIDENCE
REVEALED THAT EMPLOYEES IN THIS SECTION WERE ENGAGED IN AN INTEGRATED
MAINTENANCE AND REPAIR OPERATION FOR ALL FLOATING AND LAND PLANTS WITHIN
THE DISTRICT; THAT THEY GENERALLY WORKED IN THE SAME LOCATION UNDER THE
SAME PLANT BRANCH CHIEF; AND THAT THEY DID NOT INTERCHANGE WITH
EMPLOYEES OUTSIDE THE SECTION. IN THESE CIRCUMSTANCES, THE ASSISTANT
SECRETARY DIRECTED THAT AN ELECTION BE HELD IN THE SERVICE BASE SECTION
UNIT IF THE NAGE DESIRED AN ELECTION IN SUCH A UNIT. IN ADDITION,
BECAUSE THE UNIT FOUND APPROPRIATE WAS SUBSTANTIALLY DIFFERENT THAN THAT
SOUGHT INITIALLY, THE ASSISTANT SECRETARY DIRECTED THE ACTIVITY TO POST
COPIES OF A NOTICE IN THE APPROPRIATE UNIT FOR THE BENEFIT OF POTENTIAL
INTERVENORS.
DEPARTMENT OF THE ARMY, ST. LOUIS DISTRICT,
CORPS OF ENGINEERS, ST. LOUIS, /1/ MISSOURI
AND
LOCAL R14-96, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 24
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER HERBERT P. KREHBIEL. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
ACTIVITY AND THE NFFE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. PETITIONER, LOCAL R14-96, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, HEREIN CALLED NAGE, SEEKS AN ELECTION IN A UNIT OF ALL
NONSUPERVISORY EMPLOYEES ASSIGNED TO THE SHOPS, YARDS, LOCKS, AND DAMS,
ST. LOUIS DISTRICT, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK EXCEPT IN A PURELY CLERICAL CAPACITY, GUARDS AND
SUPERVISORS AS DEFINED IN THE ORDER.
THE ACTIVITY CONTENDS THAT THE PROPOSED UNIT IS INAPPROPRIATE BECAUSE
IT IS COMPOSED OF TWO SEPARATELY IDENTIFIABLE GROUPS OF EMPLOYEES WHO DO
NOT SHARE A COMMUNITY OF INTEREST; NAMELY THOSE EMPLOYED IN SHOPS AND
YARDS, HEREIN CALLED SERVICE BASE SECTION, AND THOSE EMPLOYED IN LOCKS
AND DAMS, HEREIN CALLED LOCK AND DAM SECTION WITH EACH SECTION HAVING
ITS OWN PURPOSE OR OBJECTIVE AND PERFORMING DIFFERENT JOB FUNCTIONS.
THE INTERVENOR, NFFE, AGREES WITH THE ACTIVITY'S CONTENTION.
IN 1964, UNDER EXECUTIVE ORDER 10988, THE ACTIVITY ACCORDED
DISTRICT-WIDE FORMAL RECOGNITION TO THE NFFE FOR ALL CATEGORIES OF
EMPLOYEES, GENERAL SCHEDULE AND WAGE BOARD, REGARDLESS OF GRADE. THERE
IS NO EVIDENCE THAT SPECIFIC MATTERS CONCERNING THE SERVICE BASE OR THE
LOCK AND DAM SECTIONS WERE DISCUSSED DURING THE PARTIES' FORMAL
RECOGNITION RELATIONSHIP. SUBSEQUENT TO THE EFFECTIVE DATE OF EXECUTIVE
ORDER 11491, THE NAGE WAS CERTIFIED AS THE REPRESENTATIVE OF EMPLOYEES
ASSIGNED TO THE ST. LOUIS DISTRICT'S /3/ FLOATING PLANTS.
SERVICE BASE SECTION
THE SERVICE BASE SECTION IS LOCATED IN ST. LOUIS, MISSOURI, AND IS
THE ONLY SECTION IN THE ST. LOUIS DISTRICT WHICH IS COMPOSED OF
EMPLOYEES HAVING DIFFERENT TRADE SKILLS. ITS PRIMARY FUNCTION IS
ACTIVITY-WIDE MAINTENANCE AND REPAIR OF FLOATING AND LAND PLANTS AS
REQUIRED UNDER NORMAL OPERATIONS, AND IT OPERATES ALMOST WHOLLY WITHIN
ITS SERVICE BASE OF OPERATIONS EXCEPT WHEN CALLED UPON FOR EMERGENCY
ON-SITE REPAIRS. IN ADDITION, EACH FACILITY IN THE ST. LOUIS DISTRICT
HAS ITS OWN SPECIALIZED PERSONNEL WHO ARE SUPPORTED BY THE SERVICE BASE
SECTION.
IN THIS SECTION, THE CHAIN OF COMMAND AND SUPERVISION DOWNWARD FROM
THE CHIEF OF THE ACTIVITY'S OPERATIONS DIVISION, IS TO THE PLANT BRANCH
CHIEF, TO THE MANAGER, SERVICE BASE SECTION, AND BENEATH HIM, TO THE
ASSISTANT MANAGER AND SHOP SUPERINTENDENT.
THE PLANT BRANCH CHIEF HAS THE RESPONSIBILITY FOR COMPLETION OF WORK
ASSIGNMENTS AND TOURS OF DUTY, AND SUPERVISORS IN THE SECTION CONTROL
WORK SCHEDULES AND ANNUAL LEAVE. SUPERVISORS ALSO RECOMMEND PROMOTIONS
TO THE PLANT BRANCH CHIEF, WHO, IN TURN, MAKES HIS RECOMMENDATIONS TO
THE ACTIVITY'S PERSONNEL OFFICE WHICH IS THE FINAL AUTHORITY IN THESE
MATTERS. EMPLOYEES HAVING GRIEVANCES MAY DEAL DIRECTLY WITH THE PLANT
BRANCH CHIEF.
THE WORK OF THE SECTION IS CONTROLLED BY SHOP OR JOB ORDERS UNDER
INDUSTRIAL ENGINEERING GUIDELINES AND PRACTICES. PRIORITIES CHANGE FROM
DAY TO DAY AND CONCERN MANY OF THE ACTIVITY'S OPERATING UNITS. WORK
SCHEDULES AND TOURS OF DUTY ARE ON A STANDARD 8:00 A.M. TO 4:45 P.M.
WORKDAY, FIVE DAYS A WEEK, AND THIS SCHEDULE VARIES ONLY IN CASES OF
EMERGENCY. WAGE SCALES ARE GENERALLY CONTROLLED BY THOSE PREVAILING IN
THE AREA FOR THE RESPECTIVE SKILLS AND TRADES.
THERE ARE FORTY-SIX NONSUPERVISORY EMPLOYEES IN THE SECTION WHO ARE
INCLUDED IN CATEGORIES SUCH AS MECHANICS, MACHINISTS, WELDERS, IRON AND
METAL WORKERS, CARPENTERS, ELECTRICIANS, AND GENERAL LABORERS. EACH
SKILL OR TRADE HAS A FOREMAN OR LEADER WHO REPORTS TO THE SHOP
SUPERINTENDENT, AND IT IS ESTIMATED THAT THERE IS ONE FUNCTIONAL
SUPERVISOR FOR EIGHT TO TEN EMPLOYEES.
EMPLOYEES ARE TRAINED AND PROMOTED WITHIN THE SECTION AND, GENERALLY,
THERE ARE NO INTERCHANGEABLE PROMOTIONS BETWEEN THIS SECTION AND THE
LOCK AND DAM SECTION. HOWEVER, A QUALIFIED EMPLOYEE IN THE LOCK AND DAM
SECTION WOULD BE GIVEN CONSIDERATION IN THE SERVICE BASE SECTION UNDER
THE CIVIL SERVICE COMMISSION MERIT PROMOTION AND PLACEMENT SYSTEM.
THE EVIDENCE REVEALS THAT, IN THE PAST, EMERGENCY REQUIREMENTS AT
LOCK AND DAM FACILITIES ACCOUNTED FOR LESS THAN FIVE PERCENT (5%) OF THE
SERVICE BASE SECTION'S TOTAL MANHOURS. IN THIS RESPECT, THE WORK
CONSISTED OF MAINTENANCE OF HIGH GRADE STRUCTURAL REPAIR REQUIRING
SKILLED WELDERS, METAL AND IRONWORKERS, WHICH COULD NOT BE ASSIGNED TO
OR HANDLED BY A LOCK AND DAM OPERATOR. THIS WORK WAS PERFORMED UNDER
THE SUPERVISION OF SERVICE BASE SECTION SUPERVISORS AND LEADERS.
LOCK AND DAM SECTION
THE LOCK AND DAM SECTION CONSISTS OF ONE LOCK AND THREE LOCK AND DAM
FACILITIES, LOCATED ON THE MISSISSIPPI RIVER FROM THREE TO APPROXIMATELY
SEVENTY-FIVE OR EIGHTY MILES FROM ST. LOUIS. EACH FACILITY PERFORMS A
SERVICE TO NAVIGATION; THE DAMS IMPOUND WATER IN A CHANNEL AND THE
LOCKS PROVIDE A MEANS FOR BOATS AND BARGES TO PASS THE DAMS.
IN THIS SECTION, THE CHAIN OF COMMAND AND SUPERVISION DOWNWARD FROM
THE CHIEF OF THE ACTIVITY'S OPERATIONS DIVISION, IS TO THE CHIEF,
NAVIGATION BRANCH, TO THE HEAD OF THE LOCK AND DAM SECTION, AND FROM THE
LATTER TO EACH OF FOUR LOCKMASTERS. EACH LOCKMASTER HAS AN ASSISTANT
LOCKMASTER AND THEY ARE CLASSIFIED AS SUPERVISORS.
THE CHIEF, NAVIGATION BRANCH HAS THE RESPONSIBILITY FOR WORKING
CONDITIONS AND HOURS OF DUTY, AND HE HANDLES EMPLOYEE COMPLAINTS ON
WORKING CONDITIONS, PROMOTIONS AND GRIEVANCES. HE ALSO RECOMMENDS
PROMOTIONS TO THE ACTIVITY'S PERSONNEL OFFICE WHICH IS THE FINAL
AUTHORITY IN THESE MATTERS.
THE LOCK AND DAM OPERATION IS ENTIRELY ELECTRICAL. THE PRIMARY WORK
OF ITS PERSONNEL IS OPERATING MACHINERY AND EQUIPMENT TO PASS BOATS AND
BARGES THROUGH LOCKS. THE MAJORITY OF THE PERSONNEL OCCUPY SPECIALIZED
JOBS AND OPERATE UNDER SPECIALIZED RULES CONCERNING LOCKS AND DAMS ONLY.
WORK SCHEDULES ARE ON A ROTATING THREE SHIFT BASIS, TWENTY-FOUR HOURS A
DAY, SEVEN DAYS A WEEK, THROUGHOUT THE YEAR. THE DEPARTMENT OF DEFENSE
WAGE FIXING AUTHORITY HAS ESTABLISHED A SEPARATE WAGE RATE SCALE FOR
LOCK AND DAM EMPLOYEES OF THE CORPS OF ENGINEERS.
THERE ARE APPROXIMATELY SIXTY-FIVE NONSUPERVISORY EMPLOYEES IN THIS
SECTION. THEY ARE GENERALLY SKILLED EMPLOYEES WHO ARE REQUIRED TO BE
FAMILIAR WITH VARIOUS TYPE RELAYS, CONTRACTORS, AND MICRO-SYSTEMS OF
MACHINES. THE SECTION DOES HAVE SOME NONSPECIALIZED EQUIPMENT REPAIR
PERSONNEL WHO DO INCIDENTAL CARPENTRY AND PIPEFITTING, AND WORK ON
MACHINERY, AT THE LOCKS AND DAMS. HOWEVER, EMPLOYEES IN THIS SECTION DO
NOT PERFORM WORK AT OR FOR THE SERVICE BASE.
DURING THE PAST TEN YEARS THERE HAS BEEN NO INTERCHANGE OF PERSONNEL
BETWEEN THE LOCK AND DAM SECTION AND THE SERVICE BASE SECTION; NOR HAVE
THERE BEEN BIDS FOR JOBS TO THIS SECTION /4/ FROM THE SERVICE BASE
SECTION.
THE RECORD DISCLOSES THAT, OTHER THAN ON-SITE EMERGENCY REPAIRS ON
LOCKS AND DAMS BY THE SERVICE BASE SECTION, COMMUNICATIONS BETWEEN
EMPLOYEES IN THE TWO SECTIONS HAS BEEN LIMITED TO THAT OF TWO OR THREE
TRIPS A YEAR BY ONE SECTION EMPLOYEE TO THE OTHER SECTION TO PICK UP OR
DELIVER SUPPLIES, AND THE DELIVERY TO THE SERVICE BASE SECTION BY LOCK
AND DAM PERSONNEL OF MACHINERY TO BE REPAIRED.
BASED ON THE FOREGOING, I FIND THAT A UNIT INCLUDING EMPLOYEES IN
BOTH THE SERVICE BASE SECTION AND THE LOCK AND DAM SECTION IS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER SECTION 10 OF
THE EXECUTIVE ORDER. THE EVIDENCE ESTABLISHES THAT THERE IS NEITHER
OVERLAPPING SUPERVISION NOR DIRECT OR NECESSARY OPERATING
RESPONSIBILITIES BETWEEN THE TWO SECTIONS. EACH SECTION HAS ITS OWN
PROGRAM FOR TRAINING AND PROMOTIONS AND THERE HAS BEEN NO INTERCHANGE OF
PERSONNEL FOR THE PAST TEN YEARS. THE FUNCTION OF THE SERVICE BASE
SECTION IS TO PROVIDE MAINTENANCE AND REPAIR SERVICES FOR ALL DISTRICT
FLOATING AND LAND PLANT OPERATIONS, AND ITS EMPLOYEES ARE THOSE TRAINED
IN THE TRADES AND SKILLS NORMALLY IDENTIFIED WITH MAINTENANCE AND
REPAIR. ON THE OTHER HAND, THE FUNCTION OF THE LOCK AND DAM SECTION IS
TO OPERATE LOCKS AND DAMS ON THE MISSISSIPPI RIVER TO PASS BOATS AND
BARGES UP AND DOWN THE RIVER, AND THE MAJORITY OF THE PERSONNEL AND
ELECTRICIAN SPECIALISTS WHO OPERATE LOCK AND DAM EQUIPMENT UNDER
SPECIALIZED RULES WHICH RELATE SOLELY TO LOCKS AND DAMS. MOREOVER, THE
SERVICE BASE SECTION OPERATES ON A CONVENTIONAL EIGHT HOUR WORK DAY,
FIVE DAYS A WEEK AND WAGE SCALES ARE GENERALLY CONTROLLED BY THOSE
PREVAILING IN THE AREA FOR THE RESPECTIVE SKILLS AND TRADES; WHEREAS
THE LOCK AND DAM SECTION OPERATES ON A ROTATING THREE SHIFT BASIS,
TWENTY-FOUR HOURS A DAY EVERY DAY OF A YEAR, AND WAGES ARE THOSE WHICH
HAVE BEEN ESTABLISHED SEPARATELY BY THE DEPARTMENT OF DEFENSE WAGE
FIXING AUTHORITY FOR LOCK AND DAM EMPLOYEES OF THE CORPS OF ENGINEERS.
IN THESE CIRCUMSTANCES, AND NOTING THE ACTIVITY'S CONTENTION THAT A UNIT
COMBINING BOTH SECTIONS WILL NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF ITS OPERATIONS, I FIND THAT THE UNIT PETITIONED FOR BY THE
NAGE, COVERING BOTH THE SERVICE BASE SECTION AND THE LOCK AND DAM
SECTION, IS NOT APPROPRIATE.
I FURTHER FIND, IN ACCORDANCE WITH POSITIONS OF THE ACTIVITY AND THE
NFFE, THAT ENCOMPASSED WITHIN THE PETITIONED FOR UNIT IS AN APPROPRIATE
UNIT COMPRISED OF EMPLOYEES /5/ IN THE SERVICE BASE SECTION. IN THIS
RESPECT, THE EVIDENCE ESTABLISHES THAT EMPLOYEES IN THIS SECTION ARE
ENGAGED IN AN INTEGRATED MAINTENANCE AND REPAIR OPERATION FOR ALL
FLOATING AND LAND PLANTS WITHIN THE DISTRICT; THEY HAVE, EXCEPT FOR
RARE OCCURRENCES, THE SAME WORK LOCATION; THEY WORK UNDER THE SAME
PLANT BRANCH CHIEF; AND THEY DO NOT INTERCHANGE WITH OTHER EMPLOYEES
OUTSIDE THE SECTION.
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491:
ALL EMPLOYEES ASSIGNED TO THE SERVICE BASE SECTION, OPERATIONS
DIVISION, DEPARTMENT OF THE ARMY, ST. LOUIS DISTRICT, CORPS OF
ENGINEERS, EXCLUDING ALL OTHER DISTRICT EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
/6/ AS DEFINED IN THE ORDER.
IN THE CIRCUMSTANCES SET FORTH BELOW, AN ELECTION BY SECRET BALLOT
SHALL BE CONDUCTED AMONG THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE,
NOT LATER THAN 30 DAYS FROM THE DATE UPON WHICH THE APPROPRIATE AREA
ADMINISTRATOR ISSUES HIS DETERMINATION WITH RESPECT TO ANY INTERVENTIONS
IN THIS MATTER. THE APPROPRIATE AREA ADMINISTRATOR SHALL SUPERVISE THE
ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS. ELIGIBLE TO
VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD
IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT
WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON VACATION OR ON
FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON
AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE
DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD AND WHO HAVE
NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE
SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY LOCAL R14-96, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES OR ANY OTHER LABOR ORGANIZATION WHICH, AS DISCUSSED
BELOW, INTERVENES IN THIS PROCEEDING ON A TIMELY BASIS.
IN THE CURRENT CIRCUMSTANCES, THE NFFE'S SHOWING OF INTEREST IN THE
UNIT FOUND APPROPRIATE IS INSUFFICIENT TO TREAT IT AS AN INTERVENOR SO
AS TO WARRANT THE PLACEMENT OF ITS NAME ON THE BALLOT. BECAUSE THE
ABOVE DIRECTION OF ELECTION IS IN A SMALLER UNIT THAN THAT SOUGHT BY THE
NAGE, I SHALL PERMIT IT TO WITHDRAW ITS PETITION IF IT DOES NOT DESIRE
TO PROCEED TO AN ELECTION IN THE UNIT FOUND APPROPRIATE IN THE SUBJECT
CASE UPON NOTICE TO THE APPROPRIATE AREA ADMINISTRATOR WITHIN 10 DAYS OF
THE ISSUANCE OF THIS DECISION. IF THE NAGE DESIRES TO PROCEED TO AN
ELECTION, BECAUSE THE UNIT FOUND APPROPRIATE IS SUBSTANTIALLY DIFFERENT
THAN THAT ORIGINALLY PETITIONED FOR, I DIRECT THAT THE ACTIVITY, AS SOON
AS POSSIBLE, SHALL POST COPIES OF A NOTICE TO ALL EMPLOYEES IN PLACES
WHERE NOTICES ARE NORMALLY POSTED AFFECTING THE EMPLOYEES IN THE UNIT I
HAVE HEREIN FOUND APPROPRIATE. THE COPIES OF THE POSTED NOTICES SHALL
CONFORM IN ALL RESPECTS TO THE REQUIREMENTS OF SECTION 202.4(C) AND (D)
OF THE ASSISTANT SECRETARY'S REGULATIONS. FURTHER, ANY LABOR
ORGANIZATION, INCLUDING THE NFFE, WHICH SEEKS TO INTERVENE IN THIS
MATTER MUST DO SO IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 202.5
OF THE ASSISTANT SECRETARY'S REGULATIONS. IT SHOULD BE NOTED IN THIS
REGARD, HOWEVER, THAT ANY TIMELY INTERVENTION IN THIS MATTER WILL BE FOR
THE SOLE PURPOSE OF APPEARING ON THE BALLOT.
DATED, WASHINGTON, D.C.
MARCH 18, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ A CASE NUMBER (CASE NO. 62-1792E) WAS INADVERTENTLY ASSIGNED TO
THE INTERVENTION IN THIS MATTER BY NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 24,HEREIN CALLED NFFE. IN THESE CIRCUMSTANCES, THE
DETERMINATION OF THE ISSUES PRESENTED IN THE PETITIONED FOR UNIT IN CASE
NO. 62-1757E WILL BE DISPOSITIVE ALSO WITH RESPECT TO CASE NO.
62-1792E.
/3/ THE FLOATING PLANTS UNIT IS OFFICIALLY AND ORGANIZATIONALLY
IDENTIFIED AS THE CHANNEL MAINTENANCE SECTION, IN THE NAVIGATION BRANCH,
OPERATIONS DIVISION. EMPLOYEES ARE VARIOUSLY ASSIGNED TO DREDGES,
PATROL AND TOW BOATS, AND A FLOATING REPAIR UNIT.
/4/ THERE IS EVIDENCE, HOWEVER, OF AN EMPLOYEE TRANSFERRING FROM ONE
LOCK AND DAM LOCATION TO ANOTHER OUTSIDE THE DISTRICT.
/5/ THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH WHETHER THE EMPLOYEES
IN THE LOCK AND DAM SECTION SIMILARILY CONSTITUTED AN APPROPRIATE UNIT.
MOREOVER, IN THIS RESPECT, EVEN IF SUCH A UNIT WAS APPROPRIATE, I AM
ADVISED ADMINISTRATIVELY THAT NEITHER THAT NAGE NOR THE NFFE SUBMITTED
THE REQUIRED THIRTY PERCENT SHOWING OF INTEREST TO THE AREA
ADMINISTRATOR WHICH WOULD WARRANT THE CONDUCTING OF AN ELECTION AT THIS
TIME IN A UNIT OF LOCK AND DAM SECTION EMPLOYEES.
/6/ I AM ADVISED ADMINISTRATIVELY THAT THE NAGE HAS SUBMITTED TO THE
AREA ADMINISTRATOR IN EXCESS OF A THIRTY PERCENT SHOWING OF INTEREST IN
THE UNIT FOUND APPROPRIATE. I AM ADVISED ALSO OF THE FACT THAT THE NFFE
HAS NOT SUBMITTED A TEN PERCENT SHOWING OF INTEREST IN THE UNIT FOUND
APPROPRIATE.
1 A/SLMR 16; P. 110; CASE NOS. 64-1094(E), 64-1099(E); MARCH 18,
1971.
INTERNAL REVENUE SERVICE,
NEW ORLEANS DISTRICT
A/SLMR NO.16
THIS CASE INVOLVED REPRESENTATION PETITIONS FILED BY THE NATIONAL
ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, CHAPTER 6 (NAIRE) AND THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 22 (NFFE). NAIRE SOUGHT
A UNIT OF PROFESSIONAL AND NONPROFESSIONAL NONSUPERVISORY EMPLOYEES OF
THE INTERNAL REVENUE SERVICE, NEW ORLEANS, LOUISIANA DISTRICT. THE NFFE
SOUGHT A UNIT OF ALL NONSUPERVISORY INTERNAL REVENUE AGENTS LOCATED IN
THE ACTIVITY'S HEADQUARTERS OFFICE IN NEW ORLEANS, LOUISIANA.
THE ASSISTANT SECRETARY FOUND THAT A UNIT COMPOSED SOLELY OF INTERNAL
REVENUE AGENTS LOCATED IN THE ACTIVITY'S NEW ORLEANS, LOUISIANA
HEADQUARTERS, AS PROPOSED BY THE NFFE, WAS INAPPROPRIATE. IN THIS
REGARD, HE NOTED THAT THE ACTIVITY HAD A CENTRALIZED ADMINISTRATIVE AND
SUPERVISORY STRUCTURE FOR ALL EMPLOYEES WITHIN THE DISTRICT. HE ALSO
NOTED THAT HEADQUARTERS AGENTS, FIELD AGENTS AND EMPLOYEES IN OTHER JOB
CLASSIFICATIONS THROUGHOUT THE DISTRICT HAD MANY COMMON SKILL
REQUIREMENTS, PERFORMED SIMILAR FUNCTIONS, HAD FREQUENT CONTACTS IN THE
HEADQUARTERS OFFICE AND PROMOTIONAL OPPORTUNITIES WERE AVAILABLE ON A
DISTRICT-WIDE BASIS. IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY
CONCLUDED THAT THE UNIT SOUGHT BY THE NFFE LIMITED TO AGENTS LOCATED
SOLELY AT THE ACTIVITY'S HEADQUARTERS OFFICE WAS NOT APPROPRIATE AND,
ACCORDINGLY, HE DIRECTED THAT ITS PETITION BE DISMISSED.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE DISTRICT-WIDE UNIT
PETITIONED FOR BY THE NAIRE WAS APPROPRIATE. IN REACHING THIS
CONCLUSION, HE NOTED PARTICULARLY THE UNIFORM PERSONNEL PRACTICES AND
POLICIES WITHIN THE DISTRICT AND THE FACT THAT THERE WAS NO VARIATION IN
THE QUALIFICATIONS FOR EMPLOYMENT OR THE WORK TO BE PERFORMED IN THE
RESPECTIVE JOB CLASSIFICATIONS THROUGHOUT THE DISTRICT. THE ASSISTANT
SECRETARY ALSO NOTED THE FACT THAT PROMOTIONAL OPPORTUNITIES WERE
AVAILABLE ON A DISTRICT-WIDE BASIS AND THAT THERE WAS A SUBSTANTIAL
INTERRELATIONSHIP BETWEEN EMPLOYEES IN MANY OF THE JOB CLASSIFICATIONS
WITHIN THE DISTRICT. IN THESE CIRCUMSTANCES, AND BECAUSE, IN HIS VIEW,
SUCH A COMPREHENSIVE UNIT WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY DIRECTED THAT
AN ELECTION BE CONDUCTED IN THE UNIT PETITIONED FOR BY THE NAIRE.
INTERNAL REVENUE SERVICE,
NEW ORLEANS /1/ DISTRICT
AND
NATIONAL ASSOCIATION OF INTERNAL
REVENUE EMPLOYEES, CHAPTER 6
INTERNAL REVENUE SERVICE,
NEW ORLEANS DISTRICT
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 22
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER DONALD H. WILLIAMS.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING THE BRIEFS FILED
HEREIN, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. IN CASE NO. 64-1094(E), PETITIONER, NATIONAL ASSOCIATION OF
INTERNAL REVENUE EMPLOYEES, CHAPTER 6, HEREIN CALLED NAIRE, SEEKS AN
ELECTION IN A UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL
NONSUPERVISORY EMPLOYEES OF THE INTERNAL REVENUE SERVICE IN THE NEW
ORLEANS, LOUISIANA DISTRICT. IN CASE NO. 64-1099(E), PETITIONER,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 22, HEREIN CALLED NFFE,
SEEKS AN ELECTION IN A UNIT OF ALL NONSUPERVISORY INTERNAL REVENUE
AGENTS WHOSE OFFICIAL "POST OF DUTY" /2/ IS NEW ORLEANS, LOUISIANA. THE
ACTIVITY CONTENDS THAT THE UNIT SOUGHT BY THE NAIRE IS APPROPRIATE AND
THAT IT IS CONSISTENT WITH THE UNITS WHICH TRADITIONALLY HAVE BEEN
ESTABLISHED IN THE INTERNAL REVENUE SERVICE. ON THE OTHER HAND, IT
ASSERTS THAT THE EMPLOYEES SOUGHT BY THE NFFE DO NOT POSSESS A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST AND THAT SUCH A UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE ACTIVITY'S HEADQUARTERS, LOCATED IN NEW ORLEANS, LOUISIANA, IS
ORGANIZED UNDER THE ADMINISTRATION OF THE DISTRICT DIRECTOR AND HIS
ASSISTANT. IN ADDITION TO THE HEADQUARTERS OFFICE, THE NEW ORLEANS
DISTRICT IS COMPOSED OF 8 DUTY POSTS SCATTERED OVER /3/ THE STATE OF
LOUISIANA. THE NEW ORLEANS DISTRICT CONSISTS OF APPROXIMATELY 426
EMPLOYEES. THE NUMBER OF PERSONS CLASSIFIED BY THE ACTIVITY AS
PROFESSIONAL /4/ THROUGHOUT THE DISTRICT TOTALS 294 AND THE NUMBER OF
NONPROFESSIONAL EMPLOYEES THROUGHOUT THE DISTRICT TOTALS 132.
GENERAL RESPONSIBILITY FOR THE ADMINISTRATION OF THE ENTIRE DISTRICT
OPERATION RESTS WITH THE DISTRICT DIRECTOR AND HIS ASSISTANT. AT
HEADQUARTERS, THERE ARE THREE STAFF UNITS, I.E., PERSONNEL, TRAINING AND
FACILITIES MANAGEMENT - AS WELL AS THREE ENFORCEMENT DIVISIONS, I.E.,
COLLECTION, AUDIT AND INTELLIGENCE DIVISIONS. THE PERSONNEL UNIT
HANDLES ALL PERSONNEL MATTERS FOR THE ENTIRE NEW ORLEANS DISTRICT, AND
THE TRAINING AND FACILITIES MANAGEMENT UNITS PROVIDE TRAINING SUPPORT
AND FACILITIES AND EQUIPMENT RESPECTIVELY FOR THE ENTIRE DISTRICT. THE
COLLECTION DIVISION IS CHARGED WITH THE RESPONSIBILITY FOR COLLECTING
DELINQUENT TAX ACCOUNTS AND SECURING DELINQUENT RETURNS AS WELL AS
PROVIDING A TAXPAYERS SERVICE BY ASSISTING IN, AMONG OTHER THINGS, THE
PREPARATION OF RETURNS AND THE ADJUSTING OF TAX ACCOUNTS. THE AUDIT
DIVISION IS CHARGED WITH THE EXAMINATION OF INCOME, ESTATE, GIFT,
EMPLOYMENT AND EXCISE TAX RETURNS FOR THE PURPOSE OF DETERMINING THE
CORRECT LIABILITY OF THOSE TAXPAYERS WHOSE RETURNS THEY EXAMINE. THE
INTELLIGENCE DIVISION EXAMINES CASES OF SUSPECTED TAX FRAUD.
THE RECORD DISCLOSES THAT ALTHOUGH THE ACTIVITY'S FACILITIES
THROUGHOUT THE DISTRICT ARE SEPARATED GEOGRAPHICALLY FROM ITS
HEADQUARTERS, SUPERVISION OF EMPLOYEES ASSIGNED TO OUTLYING DUTY POSTS
AS WELL AS HEADQUARTERS IS MAINTAINED THROUGH A CHIN OF SUPERVISION
WHICH BEGINS WITH THE DISTRICT DIRECTOR AT HEADQUARTERS. HE HAS THE
AUTHORITY TO HIRE AND FIRE, TO PROMOTE AND DEMOTE, AND TO TRANSFER AND
REASSIGN ALL DISTRICT EMPLOYEES. MOREOVER, THE DISTRICT'S PERSONNEL
PRACTICES AND POLICIES APPLY EQUALLY TO ALL EMPLOYEES ON A DISTRICT-WIDE
BASIS. THUS, UP TO GENERAL SCHEDULE GRADE 13, AUTOMATIC CONSIDERATION
FOR PROMOTION IS ON A DISTRICT-WIDE BASIS AND EMPLOYEES IN ONE JOB
CLASSIFICATION MAY COMPETE FOR JOBS IN ANOTHER CLASSIFICATION. IN THIS
RESPECT, THERE IS EVIDENCE OF TRANSFERS BETWEEN HEADQUARTERS AND FIELD
PERSONNEL.
THE QUALIFICATIONS FOR INTERNAL REVENUE AGENTS ARE THE SAME
THROUGHOUT THE DISTRICT. THEY MUST HAVE KNOWLEDGE OF ACCOUNTING, TAX
LAW AND REGULATIONS AND BUSINESS PRACTICES AS WELL AS THE ABILITY TO
INVESTIGATE, WRITE REPORTS AND MEET AND DEAL WITH PEOPLE. AGENTS
GENERALLY EXAMINE INDIVIDUAL, BUSINESS AND /5/ NON-BUSINESS RETURNS.
THEY ARE RESPONSIBLE FOR THE REVIEW OF THE RETURN, FOR PLANNING THE
EXAMINATION, CONTACTING THE TAXPAYER, EXAMINING THE BOOKS AND RECORDS,
AND WRITING A REPORT.
THE RECORD REVEALS THAT OTHER CLASSIFICATIONS OF EMPLOYEES THROUGHOUT
THE DISTRICT ARE REQUIRED TO HAVE SIMILAR QUALIFICATIONS, PERFORM
SIMILAR WORK, AND HAVE SUBSTANTIAL CONTACTS WITH AGENTS. THUS, THE
QUALIFICATIONS FOR A TAX AUDITOR AND A REVENUE OFFICER ARE SIMILAR TO
THOSE OF AGENTS AND, IN MANY INSTANCES, TRAINING SESSIONS FOR AGENTS,
TAX AUDITORS AND REVENUE OFFICERS ARE HELD ON A JOINT BASIS. WITH
RESPECT TO SIMILARITY OF WORK, THE EVIDENCE REVEALS THAT TAX AUDITORS ON
THE DISTRICT'S REVIEW STAFF OR IN ITS EXCISE TAX GROUP PERFORM THE SAME
WORK AS IS PERFORMED BY AGENTS. ALSO, TAX AUDITORS AND REVENUE OFFICERS
CLASSIFY RETURNS AND GIVE ASSISTANCE TO TAXPAYERS IN MUCH THE SAME
MANNER AS AGENTS PERFORM THESE FUNCTIONS. AS NOTED ABOVE, AGENTS ALSO
HAVE SUBSTANTIAL CONTACTS WITH EMPLOYEES IN OTHER CLASSIFICATIONS IN THE
DISTRICT PARTICULARLY IN HEADQUARTERS. THUS, ALONG WITH OTHER
CLASSIFICATIONS OF EMPLOYEES, ALL HEADQUARTER'S AGENTS HAVE ACCESS TO
THE AUDIT DIVISION LIBRARY AND THEY ALSO SHARE COMMON LUNCHROOM
FACILITIES AND ENGAGE IN JOINT SOCIAL AND RECREATIONAL ACTIVITIES HELD
WITHIN THE DISTRICT.
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE NFFE
COVERING ALL NONSUPERVISORY INTERNAL REVENUE AGENTS HAVING AN OFFICIAL
POST OF DUTY IN NEW ORLEANS, LOUISIANA IS INAPPROPRIATE. AS NOTED
ABOVE, THE RECORD REVEALS THAT THE ACTIVITY HAS A CENTRALIZED
ADMINISTRATIVE AND SUPERVISORY STRUCTURE FOR ALL OF THE DISTRICT'S
EMPLOYEES; THAT AGENTS LOCATED IN THE HEADQUARTERS OFFICE, OTHER AGENTS
IN THE FIELD OFFICES WITHIN THE DISTRICT AND OTHER CLASSIFICATIONS OF
DISTRICT EMPLOYEES HAVE MANY COMMON SKILL REQUIREMENTS AND PERFORM
SIMILAR FUNCTIONS; THAT HEADQUARTERS AGENTS HAVE FREQUENT CONTACTS WITH
OTHER CLASSIFICATIONS OF EMPLOYEES IN THE HEADQUARTERS OFFICE; AND THAT
PROMOTIONAL OPPORTUNITIES ARE AVAILABLE ON A DISTRICT-WIDE BASIS. IN
THESE CIRCUMSTANCES AND NOTING ALSO THE ACTIVITY'S CONTENTION THAT A
UNIT LIMITED TO AGENTS LOCATED IN ITS HEADQUARTERS OFFICE WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF ITS OPERATIONS, I FIND THAT
THE UNIT SOUGHT BY THE NFFE IS NOT APPROPRIATE.
I ALSO FIND, BASED ON THE FOREGOING, THAT A DISTRICT-WIDE UNIT OF
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, AS PROPOSED BY THE NAIRE, IS
APPROPRIATE. AS NOTED ABOVE, THE RECORD REVEALS THAT ALL
CLASSIFICATIONS OF EMPLOYEES WITHIN THE DISTRICT ARE COVERED BY THE SAME
PERSONNEL PRACTICES AND POLICIES AND THAT THERE IS NO VARIATION IN THE
QUALIFICATIONS FOR EMPLOYMENT OR THE WORK TO BE PERFORMED IN THE
RESPECTIVE JOB CLASSIFICATIONS THROUGHOUT THE DISTRICT. IN ADDITION,
PROMOTIONAL OPPORTUNITIES ARE MADE AVAILABLE ON A DISTRICT-WIDE BASIS
AND THERE IS A SUBSTANTIAL INTERRELATIONSHIP BETWEEN EMPLOYEES IN MANY
OF THE JOB CLASSIFICATIONS WITHIN THE DISTRICT. IN THESE CIRCUMSTANCES,
I FIND THAT THERE IS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AMONG THE EMPLOYEES PETITIONED FOR BY THE NAIRE. MOREOVER, SUCH A
COMPREHENSIVE UNIT WILL, IN MY VIEW AND IN ACCORDANCE WITH THE
ACTIVITY'S POSITION, PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
I FIND THAT THE FOLLOWING EMPLOYEES OF THE ACTIVITY MAY CONSTITUTE A
UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
EXECUTIVE ORDER 11491:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE INTERNAL
REVENUE SERVICE, NEW ORLEANS, LOUISIANA DISTRICT, EXCLUDING ALL
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN /6/ THE ORDER.
AS STATED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. HOWEVER, THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10
(B)(4) OF THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH
EMPLOYEES WHO ARE NOT PROFESSIONAL UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTE FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES
OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE
SERVICE OF THE NEW ORLEANS, LOUISIANA DISTRICT EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES, ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL EMPLOYEES OF THE INTERNAL REVENUE SERVICE OF
THE NEW ORLEANS, LOUISIANA DISTRICT EXCLUDING PROFESSIONAL EMPLOYEES,
ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED /7/ BY THE NAIRE.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE NAIRE. IN THE EVENT THAT A
MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR OF
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF
VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING GROUP (B).
IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A)
ARE CAST AGAINST INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL
EMPLOYEES, THEY WILL BE TAKEN TO HAVE INDICATED THEIR DESIRE TO
CONSTITUTE A SEPARATE UNIT, AND AN APPROPRIATE CERTIFICATION WILL BE
ISSUED INDICATING WHETHER OR NOT THE NAIRE WAS SELECTED BY THE
PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE INTERNAL
REVENUE SERVICE, NEW ORLEANS, LOUISIANA DISTRICT, EXCLUDING ALL
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL EMPLOYEES OF THE INTERNAL REVENUE SERVICE, NEW ORLEANS,
LOUISIANA DISTRICT EXCLUDING ALL PROFESSIONAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN
THE ORDER.
(B) ALL PROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE SERVICE, NEW
ORLEANS, LOUISIANA DISTRICT EXCLUDING ALL NONPROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 64-1099(E)
BE, AND IT HEREBY IS, DISMISSED.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE, SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY
DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, CHAPTER 6.
DATED, WASHINGTON, D.C.
MARCH 18, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ IT IS CLEAR FROM THE RECORD THAT "POST OF DUTY" REFERS TO THOSE
AGENTS LOCATED IN THE ACTIVITY'S HEADQUARTERS OFFICE IN NEW ORLEANS,
LOUISIANA.
/3/ THESE POSTS ARE LOCATED IN BOGULUSA, HOUMA, BATON ROUGE,
LAFAYETTE, LAKE CHARLES, ALEXANDRIA, MONROE AND SHREVEPORT.
/4/ THE ACTIVITY CONSIDERS THE FOLLOWING OCCUPATIONS TO BE
PROFESSIONAL OCCUPATIONS: INTERNAL REVENUE AGENTS, TAX AUDITORS,
REVENUE OFFICERS, ATTORNEYS, ESTATE TAX AND ENGINEERS. APPARENTLY, THE
PETITIONER AGREED TO ADOPT THE ACTIVITY'S CLASSIFICATION OF EMPLOYEES AS
TO THEIR PROFESSIONAL AND NONPROFESSIONAL STATUS. AS THE RECORD DOES
NOT SET FORTH SUFFICIENT FACTS IN THIS RESPECT, I WILL MAKE NO FINDINGS
AS TO WHICH EMPLOYEE CLASSIFICATIONS CONSTITUTE PROFESSIONAL EMPLOYEES.
/5/ SOME AGENTS ALSO PERFORM THE SPECIALIZED WORK OF A PENSION TRUST
EXAMINER. OTHERS REVIEW THE DETERMINATIONS MADE BY EXAMINING AGENTS AND
STILL OTHERS PARTICIPATE AS CONFEREES ON THE ACTIVITY'S CONFERENCE STAFF
WITH OTHER EMPLOYEES IN OTHER JOB CLASSIFICATIONS.
/6/ IN ITS PETITION THE NAIRE EXCLUDED "SPECIAL AGENTS." BECAUSE THE
RECORD DOES NOT SET FORTH SUFFICIENT FACTS AS TO THIS CLASSIFICATION OF
EMPLOYEES, I SHALL MAKE NO FINDINGS AS TO WHETHER EMPLOYEES IN THIS JOB
CLASSIFICATION SHOULD BE EXCLUDED FROM THE UNIT.
/7/ AS THE NFFE'S SHOWING OF INTEREST IS INSUFFICIENT TO TREAT IT AS
AN INTERVENOR IN CASE NO. 64-1094(E), I SHALL ORDER THAT ITS NAME NOT BE
PLACED ON THE BALLOT.
1 A/SLMR 15; P. 106; CASE NO. 32-1507(RO); MARCH 3, 1971.
FEDERAL AVIATION ADMINISTRATION
NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER (NAFEC)
ATLANTIC CITY, NEW JERSEY
A/SLMR NO. 15
IN THIS CASE, WHICH AROSE AS A RESULT OF A REPRESENTATION PETITION
FILED BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1340,
(NFFE), THE PETITIONER SOUGHT A DIVISION-WIDE UNIT CONSISTING OF ALL
NONSUPERVISORY WAGE BOARD EMPLOYEES LOCATED IN THE ACTIVITY'S AIRCRAFT
FACILITIES DIVISION. THE EVIDENCE REVEALED THAT THE UNIT SOUGHT COVERED
ONLY THE 65 AIRCRAFT MECHANICS, ONE PAINTER, ONE CLEANER, ONE PARACHUTE
RIGGER, ONE FUEL HANDLER AND ONE TOOL CRIB ATTENDANT, WHO WERE EMPLOYED
BY THE DIVISION; AND, THAT ALL OF THE EMPLOYEES SO DESCRIBED WERE
LOCATED SOLELY IN THE AIRCRAFT MAINTENANCE SECTION-- ONE OF TWO
SUBORDINATE COMPONENTS OF THE DIVISION'S AIRCRAFT MAINTENANCE BRANCH.
THE FACTS IN THE CASE INDICATED THAT THE AIRCRAFT MAINTENANCE BRANCH
WAS THE ONLY BRANCH OF THE DIVISION PERFORMING REPAIR AND MAINTENANCE
WORK ON AIRCRAFT LOCATED AT THE ACTIVITY. THE WAGE BOARD EMPLOYEES
ASSIGNED TO THE AIRCRAFT MAINTENANCE SECTION WERE RESPONSIBLE FOR WORK
ON THE AIRFRAMES AND ENGINES OF THE AIRCRAFT. A SECOND SUBDIVISION OF
THE BRANCH-- THE AVIONIC MAINTENANCE SECTION, CONSISTED OF 21 GENERAL
SCHEDULE AVIONIC TECHNICIANS, WHO WERE RESPONSIBLE FOR WORK ON THE
RADAR, RADIO AND ELECTRONIC EQUIPMENT OF THE AIRCRAFT.
THE INTERVENOR, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2335,AFL-CIO, (AFGE), OPPOSED THE PETITIONED FOR UNIT ON THE BASIS THAT
A DIVISION-WIDE UNIT, OR A BRANCH-WIDE UNIT, SHOULD INCLUDE BOTH WAGE
BOARD AND GENERAL SCHEDULE PERSONNEL. THE ACTIVITY TOOK THE POSITION
THAT IT COULD ACCOMMODATE EITHER OF THE UNITS PROPOSED BY THE NFFE OR
THE AFGE WITHOUT AFFECTING ADVERSELY THE EFFICIENCY OF ITS OPERATIONS.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE PETITIONER
WAS LOCATED IN THE AIRCRAFT MAINTENANCE SECTION AND CONSISTED OF A GROUP
OF EMPLOYEES WHO CONSTITUTED A UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. ACCORDINGLY, HE DIRECTED THAT AN ELECTION BE
HELD IN THIS UNIT. IN SO DECIDING, THE ASSISTANT SECRETARY NOTED THAT
THE EMPLOYEES IN THE AIRCRAFT MAINTENANCE SECTION HAD SPECIALIZED
TRAINING AND EXPERIENCE TO PERFORM CERTAIN TASKS WHICH WERE NOT
PERFORMED BY ANY OTHER EMPLOYEES IN THE DIVISION; THAT THEY WERE
LICENSES, SPECIFICALLY, TO WORK ON DESIGNATED PARTS AND SECTIONS OF
AIRCRAFT; AND, THAT THERE WAS NO INTERCHANGE BETWEEN THE EMPLOYEES IN
THE AIRCRAFT MAINTENANCE SECTION AND OTHER DIVISION EMPLOYEES, INCLUDING
THE GENERAL SCHEDULE AVIONIC TECHNICIANS. THE ASSISTANT SECRETARY NOTED
ALSO THAT THE EMPLOYEES IN THE AIRCRAFT MAINTENANCE SECTION WERE THE
ONLY WAGE BOARD EMPLOYEES IN THE DIVISION; THAT THEIR ORGANIZATION,
SUPERVISION AND WORK SHOPS WERE SEPARATE AND DISTINCT FROM THE
ACTIVITY'S OTHER COMPONENTS; AND THAT THE ACTIVITY CURRENTLY RECOGNIZES
SEVERAL LABOR ORGANIZATIONS ON AN EXCLUSIVE BASIS COVERING UNITS SIMILAR
IN SCOPE TO THAT PETITIONED FOR IN THE SUBJECT CASE.
FEDERAL AVIATION ADMINISTRATION,
NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER (NAFEC),
ATLANTIC CITY, NEW JERSEY
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1340
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, /1/ LOCAL 2335
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER CHARLES L. SMITH. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. THE PETITIONER, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 3140, HEREIN CALLED NFFE, SEEKS TO REPRESENT EMPLOYEES IN A UNIT
CONSISTING OF ALL NONSUPERVISORY WAGE BOARD EMPLOYEES OF THE ACTIVITY'S
AVIATION FACILITIES DIVISION, ATLANTIC CITY, /2/ NEW JERSEY. THE
INTERVENOR, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2335, HEREIN CALLED AFGE, CONTENDS THAT THE NFFE'S CLAIMED UNIT IS
INAPPROPRIATE, IN THAT A DIVISION-WIDE (OR BRANCH-WIDE) UNIT SHOULD
INCLUDE BOTH GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES. THE ACTIVITY
STATES THAT IS CAN ACCOMMODATE EITHER OF THE UNITS PROPOSED BY THE NFFE
AND THE AFGE WITHOUT AFFECTING ADVERSELY THE EFFICIENCY OF ITS
OPERATIONS.
THE ACTIVITY'S AVIATION FACILITIES DIVISION IS COMPOSED OF SEVEN
OFFICES OR BRANCHES. EACH OF THESE COMPONENTS IS A FUNCTIONALLY
DISTINCT AND SEPARATE /3/ OPERATION. INDIVIDUAL BRANCH CHIEFS ESTABLISH
THE BASIC OPERATING POLICIES FOR THEIR RESPECTIVE BRANCHES AND REPORT
DIRECTLY TO THE DIVISION CHIEF. UNDER THE EXISTING GRIEVANCE
PROCEDURES, FORMAL EMPLOYEE GRIEVANCES ARE RECEIVED BY THE CHIEF OF THE
BRANCH IN WHICH THEY ORIGINATE AND ARE REFERRED TO THE DIVISION CHIEF
FOR DECISION. GRIEVANCE DECISIONS OF THE DIVISION CHIEF CAN BE APPEALED
ONLY TO THE DIRECTOR OF THE ACTIVITY. THE VARIOUS BRANCHES ARE
SUBDIVIDED INTO SECTIONS WHICH ARE UNDER THE DIRECT SUPERVISION OF
SECTION CHIEFS; HOWEVER, IN SOME SECTIONS, EMPLOYEES ARE ASSIGNED TO
WORK SHIFTS UNDER THE SUPERVISION OF SHIFT SUPERVISORS.
CURRENTLY, THE GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES OF THE
DIVISION ARE NOT REPRESENTED ON AN EXCLUSIVE BASIS. UNDER EXECUTIVE
ORDER 10988, A PREDECESSOR OF THE ACTIVITY GRANTED EXCLUSIVE RECOGNITION
TO THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS
(IAM). THE RECOGNIZED UNIT WAS COMPOSED OF GENERAL SCHEDULE AND WAGE
BOARD EMPLOYEES IN THE DIVISION WHO WERE CLASSIFIED AS AIRCRAFT
MECHANICS, AVIONIC TECHNICIANS AND QUALITY CONTROL /4/ INSPECTORS. IN
1968, THE ACTIVITY WITHDREW RECOGNITION FROM THE IAM BASED ON ITS VIEW
THAT THE UNION NO LONGER REPRESENTED A MAJORITY OF THE EMPLOYEES IN THE
UNIT. IN ADDITION, THE RECORD INDICATES THAT THE ACTIVITY HAS GRANTED
EXCLUSIVE RECOGNITION TO SEVERAL LABOR ORGANIZATIONS COVERING VARIOUS
UNITS WHICH ARE SIMILAR IN SCOPE TO THAT PETITIONED FOR IN THE SUBJECT
CASE.
THE FUNCTION OF THE AIRCRAFT MAINTENANCE BRANCH IS THE REPAIR AND
MAINTENANCE OF AIRCRAFT LOCATED AT THE /5/ ACTIVITY. PRIOR TO JULY
1965, THIS WORK WAS PERFORMED UNDER A SERVICE CONTRACT BETWEEN THE
FEDERAL AVIATION ADMINISTRATION (FAA) AND THE LOCKHEED AIRCRAFT COMPANY.
SUBSEQUENTLY, THE CONTRACT WAS ALLOWED TO EXPIRE AND THE ACTIVITY
ASSUMED RESPONSIBILITY FOR AIRCRAFT MAINTENANCE UNDER A REORGANIZATION
PROGRAM THAT CREATED THE AVIATION FACILITIES /6/ DIVISION. AN ASSISTANT
DIVISION CHIEF WAS ASSIGNED THE ADMINISTRATIVE RESPONSIBILITIES FOR THE
AIRCRAFT MAINTENANCE FUNCTION, BUT, ANOTHER REORGANIZATION AT THE
ACTIVITY, IN 1968, RESULTED IN THE ELIMINATION OF THE FUNCTIONS OF THE
ASSISTANT DIVISION CHIEF AND CREATED THE PRESENT AIRCRAFT MAINTENANCE
BRANCH. THE EMPLOYEES IN THE BRANCH ARE NOW ASSIGNED TO ONE OF TWO
FUNCTIONAL SECTIONS, THE AIRCRAFT MAINTENANCE SECTION OR THE AVIONIC
MAINTENANCE SECTION.
AIRCRAFT MAINTENANCE SECTION
THIS SECTION EMPLOYS 70 WAGE BOARD EMPLOYEES, INCLUDING SIXTY-FIVE
(65) AIRCRAFT MECHANICS, ONE PAINTER, ONE CLEANER, ONE PARACHUTE RIGGER,
ONE FUEL HANDLER AND ONE TOOL CRIB /7/ ATTENDANT. ALSO, THERE ARE SIX
GENERAL SCHEDULE EMPLOYEES LOCATED IN THE AIRCRAFT MAINTENANCE SECTION,
INCLUDING A SECTION CHIEF, FOUR SHIFT SUPERVISORS AND ONE CLERK-TYPIST.
THE SHIFT SUPERVISORS DIRECT THE WORK OF EMPLOYEES ON THEIR SHIFTS AND
REPORT DIRECTLY TO THE SECTION CHIEF WHO, IN TURN, REPORTS TO THE BRANCH
CHIEF. SHIFT SUPERVISORS ATTEMPT TO RESOLVE INFORMAL GRIEVANCES AND
COMPLAINTS ORIGINATING IN THE SECTION AND, WHEN SETTLEMENT IS NOT
ATTAINED, THEY REFER THESE MATTERS TO THE SECTION CHIEF.
THE PERSONNEL IN THE SECTION PERFORM REPAIR AND MAINTENANCE WORK ON
THE AIRFRAME AND ENGINES OF AIRCRAFT ASSIGNED TO THE ACTIVITY. THEY
HAVE SPECIALIZED TRAINING AND EXPERIENCE TO PERFORM THIS FUNCTION AND
ARE EXPECTED TO HAVE ATTAINED A DEGREE OF PROFICIENCY IN THEIR FIELDS TO
QUALIFY FOR THE FEDERAL AVIATION ADMINISTRATION'S AIRFRAMES AND POWER
PLANT MECHANICS' LICENSE. THE RECORD SHOWS THAT THE WORK PERFORMED BY
EMPLOYEES IN THIS SECTION IS HIGHLY SPECIALIZED AND THAT THEY WORK,
GENERALLY, IN THE SAME LOCATIONS. ALTHOUGH THEY NORMALLY PERFORM THEIR
TASKS DIRECTLY ON THE AIRCRAFT, THERE ARE OCCASIONS WHEN EMPLOYEES IN
THE SECTION WILL REMOVE A PARTICULAR PART TO A SEPARATE SHOP OR
"MODIFICATION" ROOM. THE RECORD SHOWS ALSO THAT THERE IS NO INTERCHANGE
BETWEEN THE EMPLOYEES IN THE SECTION AND OTHER DIVISION EMPLOYEES, /8/
AND THAT THE EMPLOYEES IN THE SECTION HAVE THE SAME HOURS AND OTHER
CONDITIONS OF EMPLOYMENT.
AVIONIC MAINTENANCE SECTION
THIS SECTION EMPLOYS TWENTY-ONE (21) GENERAL SCHEDULE AVIONIC
TECHNICIANS. THE RECORD SHOWS THAT THESE EMPLOYEES ARE ELECTRONIC
TECHNICIANS WHO PERFORM REPAIR AND MAINTENANCE WORK ON AIRCRAFT RADAR,
RADIO AND ELECTRONIC EQUIPMENT. /9/ THE SECTION EMPLOYS ALSO A GENERAL
SCHEDULE CHIEF AND FOUR GENERAL SCHEDULE SHIFT SUPERVISORS WHO DIRECT
THE WORK OF THE EMPLOYEES. THE SHIFT SUPERVISORS REPORT DIRECTLY TO THE
SECTION CHIEF WHO, IN TURN, REPORTS TO THE BRANCH CHIEF. SHIFT
SUPERVISORS HANDLE ALL INFORMAL GRIEVANCES AND COMPLAINTS ORIGINATING IN
THE SECTION.
AVIONIC TECHNICIANS HAVE SPECIALIZED TRAINING AND EXPERIENCE IN THEIR
FIELD WHICH ALLOW THEM TO QUALIFY FOR A FEDERAL COMMUNICATIONS
COMMISSION LICENSE. THE WORK PERFORMED BY THESE EMPLOYEES IS HIGHLY
SPECIALIZED AND IS NOT DUPLICATED BY ANY OTHER EMPLOYEES IN THE
DIVISION. EMPLOYEES IN THE SECTION PERFORM THEIR DUTIES IN THE SAME
GENERAL LOCATIONS, AND ON OCCASION, THEY WORK OUT OF A "RADIO SHOP"
WHERE THEY PERFORM RADAR AND RADIO REPAIR TASKS. THE EVIDENCE SHOWS
THAT THERE IS NO INTERCHANGE BETWEEN THE AVIONIC TECHNICIANS AND OTHER
DIVISION EMPLOYEES, INCLUDING THE EMPLOYEES OF THE AIRCRAFT /10/
MAINTENANCE SECTION. EMPLOYEES IN THE AVIONIC MAINTENANCE SECTION WORK
UNDER THE SAME SALARY SCALE AND HAVE THE SAME HOURS AND OTHER CONDITIONS
OF EMPLOYMENT.
DESPITE THE FACT THAT NEITHER THE NFFE'S PETITION, NOR ITS PROPOSED
AMENDMENT OF THE PETITION AT THE HEARING, SPECIFIED THE AIRCRAFT
MAINTENANCE SECTION OF THE AIRCRAFT MAINTENANCE BRANCH AS THE LOCATION
OF THE CLAIMED EMPLOYEES, THE RECORD IS CLEAR THAT THE NFFE IS SEEKING
ALL WAGE BOARD EMPLOYEES IN THE AIRCRAFT MAINTENANCE BRANCH, AND THAT
ALL SUCH EMPLOYEES ARE, IN FACT, LOCATED IN THE BRANCH'S AIRCRAFT
MAINTENANCE SECTION. THE EVIDENCE ESTABLISHES THAT THE EMPLOYEES IN THE
AIRCRAFT MAINTENANCE SECTION HAVE SPECIALIZED TRAINING AND EXPERIENCE TO
PERFORM CERTAIN TASKS; THAT THEY ARE THE ONLY WAGE BOARD EMPLOYEES
WITHIN THE AVIATION FACILITIES DIVISION; AND, THAT THEY ARE LICENSED,
SPECIFICALLY, TO WORK ON DESIGNATED PARTS AND SECTIONS OF AIRCRAFT.
ALSO, THERE IS NO INTERCHANGE BETWEEN THE EMPLOYEES, INCLUDING THE
GENERAL SCHEDULE AVIONIC TECHNICIANS. ALTHOUGH EMPLOYEES IN THIS
SECTION WORK AT TIMES IN THE SAME AREAS, AND OFTEN ON THE SAME AIRCRAFT,
AS OTHER EMPLOYEES OF THE DIVISION, THEIR ORGANIZATION, SUPERVISION AND
WORKSHOPS ARE SEPARATE AND DISTINCT FROM THE ACTIVITY'S OTHER
COMPONENTS.
IN THESE CIRCUMSTANCES, AND NOTING THE FACT THAT THE ACTIVITY DOES
NOT DISAGREE WITH THE UNIT SOUGHT AND THAT EXCLUSIVE RECOGNITION HAS
BEEN GRANTED IN OTHER UNITS OF SIMILAR SCOPE, I FIND THAT THE FOLLOWING
EMPLOYEES CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491:
ALL WAGE BOARD EMPLOYEES OF THE FEDERAL AVIATION ADMINISTRATION,
NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER, AVIATION FACILITIES
DIVISION, ATLANTIC CITY, NEW JERSEY, WHO ARE EMPLOYED IN THE AIRCRAFT
MAINTENANCE SECTION OF THE AIRCRAFT MAINTENANCE BRANCH, EXCLUDING ALL
GENERAL SCHEDULE EMPLOYEES, PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1340; OR BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2335; OR BY NEITHER.
DATED, WASHINGTON, D.C.
MARCH 3, 1971
/1/ THE INTERVENOR'S NAME APPEARS AS AMENDED AT THE HEARING.
/2/ THE RECORD SHOWS THAT ALL SUCH EMPLOYEES ARE EMPLOYED BY THE
AIRCRAFT MAINTENANCE BRANCH, A SUBDIVISION OF THE AVIATION FACILITIES
DIVISION. THIS BRANCH EMPLOYS BOTH GENERAL SCHEDULE AND WAGE BOARD
PERSONNEL; HOWEVER, ALL OF THE WAGE BOARD EMPLOYEES ARE ASSIGNED TO A
SUBORDINATE SECTION WITHIN THE BRANCH - THE AIRCRAFT MAINTENANCE
SECTION. DURING THE HEARING, THE NFFE EXPRESSED A WILLINGNESS TO AMEND
ITS PETITION TO SHOW THE ACTUAL LOCATION OF THE EMPLOYEES IT SEEKS. THE
NFFE DID NOT INDICATE THAT IT INTENDED TO INCLUDE ANY OF THE BRANCH'S
GENERAL SCHEDULE PERSONNEL IN ITS CLAIMED UNIT.
/3/ THESE COMPONENTS ARE THE ADMINISTRATIVE OFFICE, CENTRAL DISPATCH
OFFICE, AIRPORT OPERATIONS BRANCH, LIGHT OPERATIONS BRANCH, ENGINEERING
BRANCH, QUALITY CONTROL BRANCH AND AIRCRAFT MAINTENANCE BRANCH.
/4/ THE RECORD SHOWS THAT TWO OF THESE CLASSIFICATIONS, THE AIRCRAFT
MECHANICS AND AVIONIC TECHNICIANS, ARE LOCATED CURRENTLY IN THE
DIVISION'S AIRCRAFT MAINTENANCE BRANCH. ONE CONTRACT WAS EXECUTED BY
THE PARTIES COVERING BOTH THE GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES.
THERE WERE, HOWEVER, CERTAIN SPECIAL PROVISIONS IN THE CONTRACT WHICH
WERE MADE APPLICABLE SOLELY TO WAGE BOARD EMPLOYEES.
/5/ IT APPEARS THAT THE AIRCRAFT MAINTENANCE BRANCH IS THE ONLY
COMPONENT OF THE ACTIVITY PERFORMING THIS FUNCTION.
/6/ FOLLOWING THE EXPIRATION OF THE SERVICE CONTRACT, MANY OF THE
LOCKHEED COMPANY EMPLOYEES WERE HIRED BY THE ACTIVITY. THESE EMPLOYEES
ARE THE NONSUPERVISORY WAGE BOARD PERSONNEL LOCATED CURRENTLY IN THE
AIRCRAFT MAINTENANCE SECTION.
/7/ SINCE THESE ARE THE ONLY NONSUPERVISORY WAGE BOARD EMPLOYEES
WORKING CURRENTLY IN THE AVIATION FACILITIES DIVISION, IT IS CLEAR THAT
THESE ARE THE EMPLOYEES COVERED BY THE NFFE'S PETITION.
/8/ THE RECORD SHOWS THAT ON PAST OCCASIONS, AIRCRAFT MECHANICS WITH
ELECTRONICS BACKGROUNDS HAVE BEEN TRANSFERRED INTO THE AVIONIC
MAINTENANCE SECTION. HOWEVER, ALL SUCH TRANSFERRED EMPLOYEES WERE
PROMOTED TO AVIONIC TECHNICIANS AND WERE SEVERED COMPLETELY FROM THE
OPERATIONS AND SUPERVISORY CONTROL IN THE AIRCRAFT MAINTENANCE SECTION.
THERE IS NO EVIDENCE WHICH SHOWS THAT AVIONIC TECHNICIANS HAVE BEEN
TRANSFERRED TO THE AIRCRAFT MAINTENANCE SECTION.
/9/ THE EVIDENCE SHOWS THAT THE PERSONNEL IN THE AVIONIC MAINTENANCE
SECTION WERE NOT FORMERLY EMPLOYED BY THE LOCKHEED COMPANY. THE RECORD
INDICATES THAT THEY WERE TRANSFERRED INTO THE ACTIVITY, AS AN EXISTING
FUNCTIONAL GROUP, FROM ANOTHER FAA INSTALLATION.
/10/ THE RECORD SHOWS THAT THE AIRCRAFT MECHANICS AND AVIONIC
TECHNICIANS OFTEN WORK IN THE SAME AREAS OF THE FLIGHT LINE AND OFTEN ON
THE SAME AIRCRAFT. HOWEVER, ON SUCH OCCASIONS, EMPLOYEES OF THE TWO
SECTIONS ARE SUPERVISED SEPARATELY AND THERE IS NO INTERCHANGE BETWEEN
THE TWO GROUPS OF EMPLOYEES.
1 A/SLMR 14; P. 103; CASE NOS. 51-1243, 51-1276; FEBRUARY 22,
1971.
MINNESOTA ARMY NATIONAL GUARD
A/SLMR NO. 14
THIS CASE INVOLVED REPRESENTATION PETITIONS FILED BY THE MINNESOTA
CHAPTER (ARMY) ASSOCIATION OF CIVILIAN TECHNICIANS, INC. (ACT) AND THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, MINNESOTA ARMY NATIONAL
GUARD, LOCAL 3066 (AFGE). THE ACT SOUGHT AN ELECTION IN A UNIT
COMPRISED OF ALL WAGE BOARD TECHNICIANS IN THE MINNESOTA ARMY NATIONAL
GUARD INCLUDING CERTAIN GENERAL SCHEDULE TECHNICIANS IN THE COMBINED
SUPPORT MAINTENANCE SHOP AND THE ANNUAL FIELD TRAINING EQUIPMENT POOL AT
CAMP RIPLEY, MINNESOTA. THE UNIT PETITIONED FOR BY THE AFGE INCLUDED
ALL THE WAGE BOARD AND GENERAL SCHEDULE TECHNICIANS IN THE MINNESOTA
ARMY NATIONAL GUARD.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE ACT WAS NOT
APPROPRIATE. IN THIS REGARD, THE EVIDENCE REVEALED THAT ON OCCASION
WAGE BOARD EMPLOYEES PERFORMED CERTAIN DUTIES PERFORMED ORDINARILY BY
GENERAL SCHEDULE EMPLOYEES; THAT THE WAGE BOARD EMPLOYEES DID NOT
PERFORM SKILLS WHICH WOULD ENTITLE THEM TO SEPARATE REPRESENTATION ON A
CRAFT OR MULTI-CRAFT BASIS; AND THAT IN MANY INSTANCES WAGE BOARD AND
GENERAL SCHEDULE EMPLOYEES HAD COMMON WORK AREAS AND COMMON SUPERVISION.
MOREOVER, IT WAS NOTED THAT THERE WAS NO JUSTIFICATION FOR COMBINING A
SMALL SEGMENT OF GENERAL SCHEDULE EMPLOYEES AT CAMP RIPLEY WITH THE WAGE
BOARD TECHNICIANS THROUGHOUT THE STATE INASMUCH AS THERE WERE OTHER
GENERAL SCHEDULE EMPLOYEES PERFORMING SIMILAR DUTIES IN CONNECTION WITH
MAINTENANCE WORK AT OTHER INSTALLATIONS THROUGHOUT THE STATE WHO WERE
NOT INCLUDED IN THE UNIT SOUGHT. IN THESE CIRCUMSTANCES, THE ASSISTANT
SECRETARY DETERMINED THAT THE PETITION FILED BY THE ACT SHOULD BE
DISMISSED.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE UNIT PETITIONED FOR BY
THE AFGE WAS APPROPRIATE AND, ACCORDINGLY, HE DIRECTED THAT AN ELECTION
BE HELD IN A UNIT OF ALL WAGE BOARD AND GENERAL SCHEDULE TECHNICIANS IN
THE MINNESOTA ARMY NATIONAL GUARD. IN REACHING THIS DETERMINATION, THE
ASSISTANT SECRETARY FOUND PARTICULARLY RELEVANT THE HIGHLY INTEGRATED
NATURE OF THE FUNCTIONS PERFORMED BY THE WAGE BOARD AND GENERAL SCHEDULE
TECHNICIANS AS WELL AS THE FACT THAT THE ADJUTANT GENERAL ADMINISTERED
THE TECHNICIANS' PERSONNEL PROGRAM ON A STATE-WIDE BASIS WHICH RESULTED
IN UNIFORM PERSONNEL PRACTICES THROUGHOUT THE STATE.
MINNESOTA ARMY NATIONAL GUARD
AND
MINNESOTA CHAPTER (ARMY)
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
MINNESOTA ARMY NATIONAL GUARD
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
MINNESOTA ARMY NATIONAL GUARD, LOCAL 3066
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491 A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER JOHN KEGLEY. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING A BRIEF FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, MINNESOTA ARMY NATIONAL
GUARD, LOCAL 3066, HEREIN CALLED AFGE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. IN CASE NO. 51-1243, PETITIONER, MINNESOTA CHAPTER (ARMY)
ASSOCIATION OF CIVILIAN TECHNICIANS, INC., HEREIN CALLED ACT, SEEKS AN
ELECTION IN A UNIT OF ALL WAGE BOARD TECHNICIANS IN THE MINNESOTA ARMY
NATIONAL GUARD INCLUDING THE GENERAL SCHEDULE TECHNICIANS IN THE
COMBINED SUPPORT MAINTENANCE SHOP AND THE ANNUAL FIELD TRAINING
EQUIPMENT POOL AT CAMP RIPLEY, MINNESOTA. IN CASE NO. 51-1276, THE AFGE
SEEKS AN ELECTION IN A UNIT COMPRISED OF ALL WAGE BOARD AND GENERAL
SCHEDULE TECHNICIANS IN THE MINNESOTA ARMY NATIONAL GUARD. THE ACTIVITY
AGREES WITH THE ACT THAT A UNIT OF ALL WAGE BOARD TECHNICIANS INCLUDING
GENERAL SCHEDULE TECHNICIANS EMPLOYED IN THE COMBINED SUPPORT
MAINTENANCE SHOP AND THE ANNUAL FIELD TRAINING EQUIPMENT POOL, BUT
EXCLUDING ALL OTHER GENERAL SCHEDULE TECHNICIANS, IS APPROPRIATE.
THE EVIDENCE ESTABLISHES THAT GENERAL SCHEDULE TECHNICIANS ARE
EMPLOYED IN 66 ARMORIES AND NATIONAL GUARD LOCATIONS IN THE STATE OF
MINNESOTA, WHEREAS THE WAGE BOARD TECHNICIANS ARE EMPLOYED IN ONLY 19 OF
THESE INSTALLATIONS. BOTH TYPES OF TECHNICIANS ARE EMPLOYED AT CAMP
RIPLEY, WHERE THE COMBINED SUPPORT MAINTENANCE SHOP AND THE ANNUAL FIELD
TRAINING EQUIPMENT POOL ARE LOCATED. THE RECORD DISCLOSES SOME
BARGAINING HISTORY ON A STATE-WIDE BASIS UNDER EXECUTIVE ORDER 10988
WHEN AN ADVISORY COUNCIL WAS SET UP FOR THE PURPOSE OF REPRESENTING THE
TECHNICIANS IN REGARD TO THEIR GRIEVANCES AND WORKING CONDITIONS.
REPRESENTATIVES ON THIS COUNCIL WERE CHOSEN FROM AMONG BOTH WAGE BOARD
AND GENERAL SCHEDULE TECHNICIANS, AND MATTERS RELATING TO THEIR PROBLEMS
WERE DISCUSSED AT THE LEVEL OF THE ADJUTANT GENERAL, THE COMMANDING
OFFICER OF THE MINNESOTA NATIONAL GUARD. THIS ARRANGEMENT EXISTED FOR
ABOUT /1/ TWO YEARS.
TECHNICIANS ARE SELECTED USUALLY FROM THE MILITARY RANKS BY THE
COMMANDER OF A MILITARY UNIT SUCH AS A COMPANY, BATTALION, BRIGADE OR
DIVISION, AND THEY THEN ARE APPOINTED TO FEDERAL SERVICE BY ORDER OF THE
ADJUTANT GENERAL. THEY ARE EXEMPTED FROM CIVIL SERVICE COMPETITIVE
STATUS BUT RECEIVE ALL THE FEDERAL EMPLOYMENT BENEFITS PERTAINING TO
LEAVE, FEDERAL EMPLOYEE COMPENSATION, LIFE AND HEALTH INSURANCE,
SEVERANCE PAY, TENURE AND STATUS. THE ADJUTANT GENERAL IS RESPONSIBLE
FOR THE ADMINISTRATION OF THE TECHNICIANS' PROGRAM AND, IN THAT
CONNECTION, HE HAS AUTHORITY TO APPOINT, ASSIGN, PROMOTE, DEMOTE,
REASSIGN, SUSPEND, DISCIPLINE AND SEPARATE THEM IN REGARD TO THEIR
EMPLOYMENT. HE ALSO MAKES PERIODIC REVIEWS AND ANALYSES OF PERSONNEL
MANAGEMENT AND PRACTICES AS THEY PERTAIN TO THE TECHNICIANS THROUGHOUT
THE STATE; ESTABLISHES THE BASIC WORK WEEK INCLUDING IRREGULAR WORK
WEEKS OR TOURS OF DUTY AS REQUIRED; INSTITUTES AND MAINTAINS PROGRAMS
FOR CAREER DEVELOPMENT, TRAINING, INCENTIVE AWARDS AND MERIT PROMOTIONS;
AND PROVIDES INFORMATION TO THE TECHNICIANS WITH RESPECT TO THEIR
RESPONSIBILITIES AND OBLIGATIONS AS FEDERAL EMPLOYEES INCLUDING THEIR
RIGHT OF APPEAL AND THE PROCEDURES FOR REQUESTING REVIEW OF GRIEVANCES
AND COMPLAINTS.
THE MINNESOTA NATIONAL GUARD EMPLOYS WAGE BOARD TECHNICIANS IN
MAINTENANCE AND REPAIR WORK, WHEREAS THE GENERAL SCHEDULE TECHNICIANS
PERFORM DUTIES PERTAINING TO ADMINISTRATIVE AND SUPPLY FUNCTIONS. SOME
OF THE GENERAL SCHEDULE EMPLOYEES DO THE "PAPER WORK" IN THE
HEADQUARTERS OF THE VARIOUS MILITARY UNITS, BUT MOST OF THESE
ADMINISTRATIVE AND SUPPLY TECHNICIANS ARE ENGAGED IN KEEPING RECORDS OF
THE MAINTENANCE WORK PERFORMED BY THE WAGE BOARD OR "SHOP TECHNICIANS"
AND PROVIDING THE PARTS AND SUPPLIES USED BY THEM. NORMALLY, ONLY ONE
OR TWO GENERAL SCHEDULE TECHNICIANS ARE EMPLOYED AT NATIONAL GUARD
INSTALLATIONS WHERE THERE IS NO NEED FOR WAGE BOARD TECHNICIANS.
HOWEVER, IN THOSE INSTALLATIONS WHERE WAGE BOARD EMPLOYEES ARE
PERFORMING MAINTENANCE WORK, A NUMBER OF ADMINISTRATIVE AND SUPPLY
TECHNICIANS WORK IN CLOSE RELATIONSHIP WITH THEM. THUS, WHERE
MAINTENANCE OR REPAIR WORK IS REQUIRED ON ANY MILITARY EQUIPMENT, FROM
CANVAS TO FUEL-PROPELLED VEHICLES, IT IS CUSTOMARY FOR A GENERAL
SCHEDULE RECORDS CLERK TO NOTIFY THE SHOP FOREMAN, AND HE, IN TURN, HAS
HIS GENERAL SCHEDULE RECORDS CLERK LOG THE REQUEST AND MAKE OUT A WORK
ORDER. THE FOREMAN, THEN ASSIGNS THE JOB TO A "SHOP TECHNICIAN," WHO
PROCEEDS TO OBTAIN THE NECESSARY SUPPLIES FROM A GENERAL SCHEDULE "PARTS
MAN" IN ORDER TO /2/ PERFORM THE WORK.
THE RECORD ALSO ESTABLISHES THAT THE WAGE BOARD TECHNICIANS WORK ON
PRODUCTION CONTROL RECORDS AND IN THE PARTS DEPARTMENT AT TIMES WHEN
THERE ARE SHORTAGES OF GENERAL SCHEDULE TECHNICIANS BECAUSE OF ILLNESSES
OR JOB VACANCIES. SUPERVISION OF THE TWO CLASSIFICATIONS OF TECHNICIANS
DIFFERS AT THE LOWEST OR IMMEDIATE LEVEL IN THAT THE GENERAL SCHEDULE
EMPLOYEES PERFORMING ADMINISTRATIVE AND SUPPLY WORK IN HEADQUARTERS AND
OTHER AREAS GENERALLY ARE SUPERVISED BY THE COMMANDER OF A MILITARY
UNIT, WHEREAS THE WAGE BOARD TECHNICIANS USUALLY ANSWER EITHER TO A SHOP
FOREMAN OR A STAFF OFFICER, WHO REPORTS DIRECTLY TO THE ADJUTANT
GENERAL. HOWEVER, ALL GENERAL SCHEDULE AND WAGE BOARD TECHNICIANS ARE
ATTACHED TO A SPECIFIC UNIT, SUCH AS A BATTALION OR A BRIGADE, AND
THEREFORE, ARE SUBJECT TO OVERALL SUPERVISION BY THE SAME COMMANDER.
MOREOVER, IN MAINTENANCE AREAS, SUCH AS THE ONE AT CAMP RIPLEY, BOTH
TYPES OF TECHNICIANS HAVE A /3/ COMMON SUPERVISOR.
VIEWED IN ITS ENTIRETY, I FIND THAT THE RECORD DOES NOT ESTABLISH A
BASIS FOR FINDING A STATE-WIDE UNIT OF WAGE BOARD TECHNICIANS INCLUDING
A SMALL GROUP OF GENERAL SCHEDULE TECHNICIANS AT CAMP RIPLEY, AS SOUGHT
BY THE ACT, TO BE APPROPRIATE. THE EVIDENCE DEMONSTRATES THAT THE WAGE
BOARD OR "SHOP TECHNICIANS" AT TIMES PERFORM THE RECORD-KEEPING AND
PARTS DEPARTMENT DUTIES OF THE GENERAL SCHEDULE TECHNICIANS. ALSO, THE
RECORD REVEALED THAT GENERAL SCHEDULE TECHNICIANS ON OCCASION ARE
ENGAGED IN SUPPLY WORK AND THAT THE WAGE BOARD AND GENERAL SCHEDULE
EMPLOYEES OFTEN HAVE COMMON WORK AREAS, AND IN A SUBSTANTIAL NUMBER OF
INSTANCES, HAVE COMMON SUPERVISION AND A RELATIVELY HIGH DEGREE OF
INTERCHANGE OF DUTIES AND CONTACT IN THEIR WORK. IN THESE
CIRCUMSTANCES, I FIND THAT THE WAGE BOARD TECHNICIANS DO NOT CONSTITUTE
A DISTINCT AND HOMOGENEOUS GROUP OF SKILLED EMPLOYEES WHO WOULD BE
ENTITLED TO SEPARATE REPRESENTATION ON A CRAFT OR MULTI-CRAFT UNIT
BASIS. MOREOVER, THERE IS NO JUSTIFICATION FOR COMBINING A SMALL
SEGMENT OF GENERAL SCHEDULE TECHNICIANS AT CAMP RIPLEY WITH THE WAGE
BOARD TECHNICIANS THROUGHOUT THE STATE INASMUCH AS THERE ARE OTHER
GENERAL SCHEDULE TECHNICIANS PERFORMING SIMILAR DUTIES IN CONNECTION
WITH MAINTENANCE WORK AT OTHER INSTALLATIONS THROUGHOUT THE STATE WHO
WERE NOT INCLUDED IN THE UNIT SOUGHT. ACCORDINGLY, I FIND THAT THE UNIT
SOUGHT BY THE ACT IS NOT APPROPRIATE.
I ALSO FIND, BASED ON THE FOREGOING, THAT A UNIT COMPRISED OF ALL
WAGE BOARD AND GENERAL SCHEDULE TECHNICIANS IN THE MINNESOTA ARMY
NATIONAL GUARD IS /4/ APPROPRIATE. AS NOTED ABOVE, THE EVIDENCE
ESTABLISHES THAT THESE TECHNICIANS PERFORM HIGHLY INTEGRATED FUNCTIONS.
BOTH CLASSIFICATIONS OF TECHNICIANS OFTEN HAVE COMMON WORK AREAS, HAVE
COMMON SUPERVISION, AND THERE IS SUBSTANTIAL INTERCHANGE OF DUTIES AND
CONTACT /5/ IN THEIR WORK. MOREOVER, THE ADJUTANT GENERAL ADMINISTERS
THE TECHNICIANS' PERSONNEL PROGRAM ON A STATE-WIDE BASIS WHICH RESULTS
IN UNIFORM PERSONNEL PRACTICES THROUGHOUT THE STATE. ACCORDINGLY, I
FIND THAT THE FOLLOWING EMPLOYEES OF THE ACTIVITY CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491:
ALL WAGE BOARD AND GENERAL SCHEDULE TECHNICIANS IN THE MINNESOTA ARMY
NATIONAL GUARD, EXCLUDING ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 51-1243 BE,
AND IT HEREBY IS, /6/ DISMISSED.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, MINNESOTA ARMY NATIONAL GUARD, LOCAL
3066; OR BY THE MINNESOTA CHAPTER (ARMY), ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., OR BY NEITHER.
DATED, WASHINGTON, D.C.
FEBRUARY 22, 1971
/1/ THE RECORD DOES NOT INDICATE THE DATE OF THE INCEPTION OF THE
COUNCIL OR THE TYPE OF RECOGNITION THAT WAS ACCORDED TO IT BY THE
ACTIVITY.
/2/ THIS ROUTINE IS FOLLOWED IN THE COMBINED SUPPORT MAINTENANCE SHOP
AT CAMP RIPLEY.
/3/ THE RECORD ALSO REVEALS THAT PROMOTION POLICIES FOR BOTH GENERAL
SCHEDULE AND WAGE BOARD TECHNICIANS ARE THE SAME.
/4/ SEE PENNSYLVANIA NATIONAL GUARD, A/SLMR NO. 9
/5/ ALTHOUGH THE WORK LOCATIONS, IMMEDIATE SUPERVISION AND THE SKILLS
OF THE GENERAL SCHEDULE TECHNICIANS WHO DO THE "PAPER WORK" OR OFFICE
CLERICAL DUTIES IN THE HEADQUARTERS OF THE VARIOUS MILITARY UNITS DIFFER
FROM THOSE OF THE OTHER TECHNICIANS, THEY ARE INCLUDED IN THE
APPROPRIATE UNIT BECAUSE ALL OF THE TECHNICIANS PERFORM HIGHLY
INTEGRATED FUNCTIONS WHICH SERVE TO MAINTAIN THE CONTINUITY OF THE
MINNESOTA NATIONAL GUARD AND FURTHER, THEY HAVE COMMON FRINGE BENEFITS,
TENURE AND STATUS.
/6/ AS THE ACT'S SHOWING OF INTEREST IS SUFFICIENT TO TREAT IT AS AN
INTERVENOR IN CASE NO. 51-1276, I SHALL DIRECT THAT ITS NAME BE PLACED
ON THE BALLOT. HOWEVER, BECAUSE THE UNIT FOUND APPROPRIATE IS LARGER
THAN THE UNIT IT SOUGHT INITIALLY, I SHALL PERMIT IT TO WITHDRAW FROM
THE ELECTION UPON NOTICE TO THE APPROPRIATE AREA ADMINISTRATOR WITHIN 10
DAYS OF THE ISSUANCE OF THIS DECISION.
1 A/SLMR 13; P. 100; CASE NO. 22-1926(RO); FEBRUARY 22, 1971.
U.S. SOLDIER'S HOME
WASHINGTON, D.C.
A/SLMR NO. 13
THIS CASE, WHICH AROSE AS A RESULT OF A REPRESENTATION PETITION FILED
BY THE DISTRICT OF COLUMBIA NURSES' ASSOCIATION, AMERICAN NURSES'
ASSOCIATION, RAISED THE QUESTION WHETHER SUPERVISORY CLINICAL NURSES
WERE SUPERVISORS AND SHOULD THEREFORE BE EXCLUDED FROM THE PETITIONED
FOR UNIT.
THE EVIDENCE ESTABLISHED THAT THE EMPLOYEES WHO COMPRISED THE
PETITIONED FOR UNIT WERE 27 CLINICAL NURSES AND 5 SUPERVISORY CLINICAL
NURSES WHO PERFORMED PROFESSIONAL NURSING AND PATIENT CARE DUTIES IN THE
ACTIVITY'S HOSPITAL WARDS, CLINICS AND EMERGENCY ROOM. IN CONTENDING
THAT ITS CLAIMED UNIT, INCLUDING BOTH CLASSIFICATIONS, WAS APPROPRIATE,
THE PETITIONER ASSERTED THAT SUPERVISORY CLINICAL NURSES AND CLINICAL
NURSES PERFORMED THE SAME DUTIES, THAT THEIR ROLES WERE INTERCHANGEABLE,
AND, THAT EFFECTIVE SUPERVISION OF ALL NURSES IN THE NURSING SERVICE
EMANATED FROM THE ASSISTANT DIRECTOR OF NURSING. THE ACTIVITY CONTENDED
THAT SUPERVISORY CLINICAL NURSES WERE "SUPERVISORS" AS DEFINED IN THE
ORDER, AND SHOULD THEREFORE BE EXCLUDED FROM THE PROPOSED UNIT.
THE ASSISTANT SECRETARY FOUND THE SUPERVISORY CLINICAL NURSES TO BE
"SUPERVISORS" ON THE BASIS OF EVIDENCE IN THE RECORD WHICH SHOWED THAT
THEY INSTRUCTED AND DIRECTED THE WORK OF SUBORDINATE EMPLOYEES; THEY
APPROVED LEAVE AND VACATIONS; AND, THAT THEY MADE WRITTEN PERFORMANCE
EVALUATIONS OF ALL PERSONNEL ASSIGNED TO THEM INCLUDING CLINICAL NURSES.
THE ASSISTANT SECRETARY NOTED ALSO THAT SUPERVISORY CLINICAL NURSES
PARTICIPATED IN THE ACTIVITY'S HIRING PROCEDURES BY RECOMMENDING THE
RETENTION OR DISCHARGE OF PROBATIONARY EMPLOYEES.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DIRECTED THAT AN
ELECTION BE HELD IN A UNIT OF CLINICAL NURSES, EXCLUDING, AMONG OTHERS,
SUPERVISORY CLINICAL NURSES.
U.S. SOLDIERS' HOME, WASHINGTON, D.C.
AND
DISTRICT OF COLUMBIA NURSES' ASSOCIATION,
AMERICAN NURSES' ASSOCIATION
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER GERALD W. WELCOME. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FOUND TO BE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. THE PETITIONER SEEKS AN ELECTION IN A UNIT OF CLINICAL NURSES AND
SUPERVISORY CLINICAL NURSES LOCATED IN THE ACTIVITY'S NURSING /1/
SERVICE. THE PETITIONER CONTENDS THAT SUPERVISORY CLINICAL NURSES ARE
NOT "SUPERVISORS" WITHIN THE MEANING OF EXECUTIVE ORDER 11491 BECAUSE
THE DUTIES OF THE SUPERVISORY CLINICAL NURSES AND CLINICAL NURSES ARE
INTERCHANGEABLE, AND THAT EFFECTIVE SUPERVISION OF ALL REGISTERED NURSES
IN THE NURSING SERVICE EMANATES FROM THE ASSISTANT DIRECTOR OF NURSING.
THEREFORE, THE PETITIONER ASSERTS THAT ALL CLINICAL NURSES, INCLUDING
SUPERVISORY CLINICAL NURSES, HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SO AS TO WARRANT THEIR INCLUSION IN THE SAME BARGAINING UNIT.
THE ACTIVITY CONTENDS THAT SUPERVISORY CLINICAL NURSES SUPERVISE,
EFFECTIVELY BOTH PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE
NURSING SERVICES AND ARE THEREFORE "SUPERVISORS" AS DEFINED IN THE
EXECUTIVE ORDER WHO SHOULD BE EXCLUDED FROM THE PETITIONED FOR UNIT.
THE NURSING SERVICE IS ONE OF THE FIVE SUBORDINATE COMPONENTS WHICH
COMPRISE THE CHIEF SURGEON'S DEPARTMENT OF THE U.S. SOLDIERS' HOME,
WASHINGTON, D.C. ITS MISSION IS TO PROVIDE PROFESSIONAL AND TECHNICAL
SERVICES REQUIRED IN THE ACTIVITY'S NURSING AND PATIENT CARE OPERATIONS.
THE SERVICE OPERATES UNDER THE DIRECT ADMINISTRATION OF A DIRECTOR OF
NURSING AND AN ASSISTANT DIRECTOR OF NURSING.
IN PERFORMING ITS FUNCTION, THE NURSING SERVICE EMPLOYS A STAFF
CONSISTING OF, AMONG OTHERS, REGISTERED NURSES, PRACTICAL NURSES,
MEDICAL TECHNICIANS, NURSES ASSISTANTS AND CLERICAL PERSONNEL. THESE
EMPLOYEES ARE ASSIGNED TO ONE OF THREE SUBORDINATE SECTIONS-- THE WARD
NURSING SECTION; THE CLINICAL NURSING SECTION, OR THE CENTRAL SUPPLY
SECTION.
THE FUNCTION OF THE WARD NURSING SECTION IS TO PROVIDE PROFESSIONAL
NURSING AND PATIENT CARE SERVICE IN THE ACTIVITY'S VARIOUS HOSPITAL
WARDS. THE PROFESSIONAL STAFF IN THE SECTION CONSISTS OF 15 CONTRACT
NURSES, 5 SUPERVISORY CLINICAL NURSES, AND 27 CLINICAL NURSES. THE
SECTION EMPLOYS ALSO A STAFF OF 172 NONPROFESSIONAL MEDICAL PERSONNEL,
INCLUDING 21 SUPERVISORY NURSES ASSISTANTS, 141 NURSES ASSISTANTS, AND
10 TRAINEE NURSES ASSISTANTS. FIVE CLERK-TYPISTS COMPRISE THE SECTION'S
CLERICAL STAFF.
THE PERSONNEL OF THE CLINICAL NURSING SECTION ARE RESPONSIBLE FOR
PROVIDING NURSING AND PATIENT CARE SERVICE IN THE ACTIVITY'S CLINICS AND
EMERGENCY ROOM. ONE NURSE IS ASSIGNED TO THIS SECTION AND SHE IS
CLASSIFIED AS A SUPERVISORY CLINICAL NURSE. SHE IS DESIGNATED AS CHIEF
OF THE SECTION. THE NONPROFESSIONAL STAFF OF THE SECTION CONSISTS OF 3
SUPERVISORY NURSES ASSISTANTS, 11 NURSES ASSISTANTS, 4 MEDICAL
ASSISTANTS, AND 3 INHALATION THERAPY TECHNICIANS.
THE CENTRAL SUPPLY SECTION EMPLOYS ONE CONTRACT NURSE, WHO IS
DESIGNATED AS CHIEF OF THE SECTION. THERE ARE 5 NONPROFESSIONAL
EMPLOYEES IN THE SECTION INCLUDING ONE SUPERVISORY MEDICAL AID AND 4
MEDICAL AIDES.
THE RECORD REVEALS THAT THE ASSISTANT DIRECTOR OF NURSING CONDUCTS
THE INITIAL INTERVIEW OF JOB APPLICANTS AND MAKES JOB ASSIGNMENTS.
HOWEVER, NEW EMPLOYEES ARE HIRED ON A TRIAL BASIS AND, DURING THEIR
PROBATIONARY PERIOD, THEIR PERFORMANCE IS EVALUATED BY THE SUPERVISORY
CLINICAL NURSE TO WHOM THEY ARE ASSIGNED. AT THE END OF THE TRIAL
PERIOD, THE SUPERVISORY CLINICAL NURSE PREPARES AND SIGNS A WRITTEN
EVALUATION OF THE EMPLOYEE WITH A RECOMMENDATION TO THE CHIEF SURGEON
FOR THE EMPLOYEE'S RETENTION OR DISCHARGE. SUPERVISORY CLINICAL NURSES
PREPARE PERIODIC WRITTEN EVALUATIONS OF PERFORMANCE OF ALL EMPLOYEES
ASSIGNED TO THEM. THIS EVALUATION, WHICH IS MADE ON AN EMPLOYEE ANNUAL
RATING SHEET, RATES THE EMPLOYEES' PERFORMANCES IN SUCH AREAS AS,
"COOPERATION, DEPENDABILITY, INTEREST, INDUSTRY AND PERSONAL
APPEARANCE." UPON COMPLETION OF THE RATING, THE SUPERVISORY CLINICAL
NURSE AND THE EMPLOYEE MEET WITH THE ASSISTANT DIRECTOR OF NURSING TO
DISCUSS THE EVALUATION. THE SUPERVISORY CLINICAL NURSE AND THE EMPLOYEE
THEN SIGN THE RATING FORM AND THE ASSISTANT DIRECTOR OF NURSING SIGNS
THE EVALUATION AS THE REVIEWING OFFICER. THE EVIDENCE ALSO ESTABLISHES
THAT THE SUPERVISORY CLINICAL NURSES INSTRUCT AND DIRECT NONPROFESSIONAL
EMPLOYEES IN RENDERING PATIENT CARE AND THAT SUPERVISORY CLINICAL NURSES
APPROVE LEAVE AND VACATIONS FOR NONPROFESSIONAL EMPLOYEES.
WITH RESPECT TO THE RELATIONSHIP BETWEEN THE SUPERVISORY CLINICAL
NURSES AND OTHER CLINICAL NURSES, THE EVIDENCE ESTABLISHES THAT, OFTEN,
THEY WORK SIDE-BY-SIDE IN RENDERING PATIENT CARE. THE SUPERVISORY
CLINICAL NURSES WORK ONLY DURING THE DAY SHIFT, WHILE THE OTHER CLINICAL
NURSES ROTATE BETWEEN DAY AND EVENING SHIFTS, AND AMONG THE VARIOUS
WARDS. THE RECORD REVEALS THAT ON OCCASION CLINICAL NURSES PERFORM SOME
OF THE DUTIES REQUIRED OF SUPERVISORY CLINICAL NURSES ON A "RELIEF"
BASIS.
THE POSITION DESCRIPTION FOR THE SUPERVISORY CLINICAL NURSES SHOWS
THAT INCUMBENTS IN THAT POSITION WORK UNDER THE DIRECT SUPERVISION OF
THE DIRECTOR OF NURSING, AND THAT THEY ARE RESPONSIBLE FOR THE, ". . .
OVERALL ADMINISTRATION OF A WARD NURSING UNIT AND, . . . DIRECT
SUPERVISION OF ALL WARD ACTIVITIES AND PERSONNEL ON THE DAY SHIFT." IT
INDICATES FURTHER THAT THEY ORGANIZE AND SUPERVISE ALL PERSONNEL IN THE
WARDS; MAKE WORK ASSIGNMENTS; DIRECT AND REVIEW WORK IN PROGRESS AND,
ON COMPLETION, INSTRUCT PERSONNEL ON METHODS AND PROCEDURES OF PATIENT
CARE; EVALUATE THE PERFORMANCE OF ALL PERSONNEL ASSIGNED TO THEM;
APPROVE EMPLOYEE ANNUAL LEAVE AND VACATIONS; RECOMMEND DISCIPLINARY
ACTION, PROMOTIONS AND INCENTIVE AWARDS AND RESOLVE INFORMAL GRIEVANCES
AND COMPLAINTS. IN EMERGENCY SITUATIONS, SUPERVISORY CLINICAL NURSES
ARE EXPECTED TO RELIEVE IN THE NURSING SERVICE OFFICE, ASSUMING STAFF
ADMINISTRATION RESPONSIBILITIES.
BASED UPON THE FOREGOING, I FIND THAT SUPERVISORY CLINICAL NURSES ARE
"SUPERVISORS" AS DEFINED IN THE EXECUTIVE ORDER AND THEREFORE, SHOULD BE
EXCLUDED FROM THE PETITIONED /2/ FOR UNIT. THE RECORD SHOWS THAT
SUPERVISORY CLINICAL NURSES INSTRUCT AND DIRECT THE WORK OF SUBORDINATE
EMPLOYEES; THEY APPROVE LEAVE AND VACATIONS; AND THEY PARTICIPATE,
ACTIVELY AND EFFECTIVELY, IN THE ACTIVITY'S HIRING PROCEDURES, BY
RECOMMENDING THE RETENTION OR DISCHARGE OF PROBATIONARY EMPLOYEES. THE
RECORD ALSO SHOWS THAT SUPERVISORY CLINICAL NURSES PREPARE PERIODIC
WRITTEN PERFORMANCE EVALUATIONS OF ALL EMPLOYEES ASSIGNED TO THEM,
INCLUDING CLINICAL NURSES. WITH RESPECT TO THE RELATIONSHIP BETWEEN THE
SUPERVISORY CLINICAL NURSES AND THE CLINICAL NURSES, ALTHOUGH THE RECORD
SHOWS THAT THEY WORK AS A PROFESSIONAL TEAM IN RENDERING PATIENT CARE,
IT IS CLEAR THAT CLINICAL NURSES ARE AWARE OF THE FACT THAT, AT ALL
TIMES, THEY OCCUPY POSITIONS WHICH ARE SUBORDINATE TO THE SUPERVISORY
CLINICAL NURSE, THAT THEY WORK ONLY IN "RELIEF" OF THE SUPERVISORY
CLINICAL NURSE WHEN PERFORMING SOME OF THE LATTER'S SUPERVISORY
FUNCTIONS, AND THAT SUPERVISORY CLINICAL NURSES ARE RESPONSIBLE FOR
THOSE DUTIES ASSIGNED TO THEM, EVEN WHEN THEY ARE BEING PERFORMED BY
"RELIEF" PERSONNEL.
IN THESE CIRCUMSTANCES, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491:
ALL CLINICAL NURSES EMPLOYED IN THE NURSING SERVICE, CHIEF SURGEON'S
DEPARTMENT, U.S. SOLDIER'S HOME, WASHINGTON, D.C., EXCLUDING SUPERVISORY
CLINICAL NURSES, CONTRACT NURSES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, OTHER PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, AND OTHER SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE DISTRICT
OF COLUMBIA NURSES' ASSOCIATION, AMERICAN NURSES' ASSOCIATION.
DATED, WASHINGTON, D.C.
FEBRUARY 22, 1971
/1/ THE PETITION DESCRIBES A UNIT CONSISTING OF, "HEAD NURSES, STAFF
NURSES AND OTHER NONSUPERVISORY REGISTERED NURSES; EXCLUDING
SUPERVISORY REGISTERED NURSES". THE ACTIVITY'S ORGANIZATION CHART DOES
NOT SHOW "HEAD NURSES" OR "STAFF NURSES" AS EXISTING POSITIONS;
HOWEVER, THE PETITIONER DID NOT CHALLENGE THE ACTIVITY'S ASSERTION THAT
THE PETITIONED FOR UNIT CONSISTED OF 27 CLINICAL NURSES AND 5
SUPERVISORY CLINICAL NURSES LOCATED IN THE WARD NURSING SECTION. THE
RECORD SHOWS THAT AN ADDITIONAL SUPERVISORY CLINICAL NURSE HAS BEEN
DESIGNATED CHIEF OF THE CLINICAL NURSING SECTION. THERE IS FURTHER
EVIDENCE IN THE RECORD WHICH SHOWS THAT 16 REGISTERED NURSES ARE
EMPLOYED IN THE NURSING SERVICE UNDER THE DESIGNATION, "CONTRACT NURSE."
THESE EMPLOYEES ARE NUNS WHO FUNCTION AS SUPERVISORY NURSES AND THE
PETITIONER HAS NOT INCLUDED THESE CONTRACT NURSES IN ITS PETITIONED FOR
UNIT.
/2/ THIS FINDING INCLUDES ALSO THE SUPERVISORY CLINICAL NURSE WHO IS
DESIGNATED AS CHIEF OF THE CLINICAL NURSING SECTION. WITH RESPECT TO
CONTRACT NURSES, THE PARTIES AGREED THAT THEY SHOULD BE EXCLUDED FROM
THE PETITIONED FOR UNIT.
1 A/SLMR 12; P. 97; CASE NO. 53-2973(RO); FEBRUARY 12, 1971.
UNITED STATES DEPARTMENT OF THE AIR FORCE,
910TH TACTICAL AIR SUPPORT GROUP (AFRES)
YOUNGSTOWN MUNICIPAL AIRPORT, VIENNA, OHIO
A/SLMR NO. 12
THE SUBJECT CASE, INVOLVING A REPRESENTATION PETITION FILED BY THE
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, LOCAL F-154,
PRESENTED THE QUESTION WHETHER THE FIRE FIGHTER EMPLOYEES COVERED BY THE
PETITION WERE "GUARDS" WITHIN THE MEANING OF THE EXECUTIVE ORDER BASED
ON THEIR ENGAGING IN CERTAIN SECURITY FUNCTIONS AT THE ACTIVITY IN
ADDITION TO THEIR FIRE FIGHTING DUTIES. IF FOUND TO BE "GUARDS," THE
PETITION WOULD BE DISMISSED BECAUSE UNDER SECTION 10(C) OF THE EXECUTIVE
ORDER THE PETITIONER WOULD NOT BE QUALIFIED TO REPRESENT SUCH EMPLOYEES
BECAUSE IT ADMITS TO MEMBERSHIP EMPLOYEES OTHER THAN GUARDS.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
FIRE FIGHTERS IN THE PETITIONED FOR UNIT WERE NOT GUARDS. IN REACHING
THIS DETERMINATION, THE ASSISTANT SECRETARY RELIED ON THE FACT THAT THE
FIRE FIGHTERS WERE NOT ARMED; DID NOT HAVE THE AUTHORITY TO ARREST OR
DETAIN INDIVIDUALS; DID NOT RECEIVE SPECIFIC INSTRUCTIONS IN CHECKING
THE INSTALLATION FOR THE PRESENCE OF UNAUTHORIZED PERSONS NOR FOR THE
LOSS OF PROPERTY; WERE SUPERVISED AT ALL TIMES BY THE FIRE DEPARTMENT
CHIEF; AND, THE PERFORMANCE OF THE SECURITY DUTIES COULD BE
CHARACTERIZED AS TEMPORARY. FURTHER, SUCH DUTIES WERE CLEARLY
SUBORDINATE TO THEIR DUTIES AND RESPONSIBILITIES AS FIRE FIGHTERS.
IN VIEW OF ALL THESE FACTORS, THE ASSISTANT SECRETARY CONCLUDED THAT
THE PERFORMANCE OF CERTAIN LIMITED SECURITY DUTIES BY THE FIRE FIGHTERS,
DID NOT GIVE RISE TO A CONFLICT OF LOYALTIES BETWEEN THAT OWED BY THE
FIRE FIGHTERS TO THE ACTIVITY AND THAT OWED TO THEIR FELLOW EMPLOYEES OR
OTHER UNION MEMBERS.
ACCORDINGLY, THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE
CLAIMED UNIT WERE NOT GUARDS WITHIN THE MEANING OF THE EXECUTIVE ORDER
AND HE DIRECTED AN ELECTION IN A UNIT COMPOSED OF ALL NONSUPERVISORY
FIRE FIGHTERS EMPLOYED BY THE ACTIVITY.
UNITED STATES DEPARTMENT OF THE AIR FORCE,
910TH TACTICAL AIR SUPPORT GROUP (AFRES)
YOUNGSTOWN MUNICIPAL AIRPORT, VIENNA, OHIO
AND
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,
AFL-CIO, LOCAL F-154
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER R. C. DEMARCO. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PETITIONER'S
BRIEF, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. PETITIONER, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO,
LOCAL F-154, HEREIN CALLED IAFF, SEEKS AN ELECTION IN A UNIT OF ALL FIRE
FIGHTERS EMPLOYED AT THE YOUNGSTOWN MUNICIPAL AIRPORT, VIENNA, OHIO.
THE ACTIVITY QUESTIONED WHETHER THE FIRE FIGHTERS, WHO PERFORM
CERTAIN INCIDENTAL SECURITY FUNCTIONS IN ADDITION TO FIRE FIGHTING, ARE
"GUARDS" WITHIN THE MEANING OF SECTION 2(D) /1/ OF EXECUTIVE ORDER
11491.
THE 910TH TACTICAL AIR SUPPORT GROUP (AFRES), YOUNGSTOWN MUNICIPAL
AIRPORT, VIENNA, OHIO, IS ONE OF 11 DIFFERENT AIR FORCE BASES IN THE
UNITED STATES WHICH COMPRISE HEADQUARTERS AIR FORCE RESERVE, A MAJOR
COMPONENT OF THE UNITED STATES AIR FORCE. THE MISSION OF THE ACTIVITY
IS TO TRAIN AIR FORCE READY RESERVISTS TO MAINTAIN COMBAT PROFICIENCY
FOR RECALL TO ACTIVE MILITARY DUTY IN THE EVENT OF A NATIONAL EMERGENCY
OR A WAR.
OF THE APPROXIMATELY 198 CIVILIAN EMPLOYEES EMPLOYED AT THE
YOUNGSTOWN MUNICIPAL AIRPORT, THERE ARE 22 FIRE FIGHTERS INCLUDING
SUPERVISORS. THE DUTIES PERFORMED BY THE FIRE FIGHTERS INCLUDE: (1)
GENERAL MAINTENANCE OF THE FIRE FIGHTING DEPARTMENT'S EQUIPMENT AND
PHYSICAL PLANT; (2) CHECKING BUILDINGS FOR FIRE HAZARDS; (3) REPAIRING
FIRE EXTINGUISHERS; (4) PERFORMING STANDBY DUTY WHILE ENGINES ON
AIRCRAFT ARE STARTED AND ALSO WHILE FUEL IS REMOVED FROM AIRCRAFT; AND
(5) RESPONDING TO MILITARY AND CIVILIAN AIRCRAFT AND STRUCTURAL FIRES AT
THE BASE AND MUNICIPAL AIRPORT TERMINAL.
IN 1969 THE ACTIVITY FOUND IT NECESSARY TO ASSIGN CERTAIN SECURITY OR
GUARD WORK TO THE FIRE FIGHTERS. BY FEBRUARY 1970 THE FIRE FIGHTERS
WERE PERFORMING ALL OF THE SECURITY WORK AT THE BASE WHICH CONSISTS
PRIMARILY OF GATE DUTY AND INSTALLATION PATROLS. THE FIRE FIGHTERS
CURRENTLY WORK SCHEDULED SHIFTS OF 24 HOURS ON AND 24 HOURS OFF DUTY, 72
HOURS A WEEK. A TYPICAL 24 HOUR SHIFT INCLUDES 4 HOURS OF GATE DUTY AT
THE MAIN GATE GUARD HOUSE, 4 HOURS OF INSTALLATION PATROL DUTY, 8 HOURS
OF FIRE FIGHTING DUTY AND 8 HOURS OF STANDBY DUTY AT THE FIRE HOUSE.
THERE ARE APPROXIMATELY 8 OR 9 FIRE FIGHTERS ON EACH SHIFT. OF THAT
NUMBER, 6 OF THE FIRE FIGHTERS PERFORM BOTH FIRE FIGHTING AND SECURITY
DUTIES DURING EACH SHIFT.
IN MERGING THE FIRE FIGHTING AND SECURITY FUNCTIONS, THE ACTIVITY
DESIGNATED 6 OF THE 22 FIRE FIGHTERS TO PERFORM SECURITY WORK. IN
ACTUAL PRACTICE, HOWEVER, ALL OF THE FIRE FIGHTERS PERFORM BOTH
FUNCTIONS.
CURRENTLY, THE FIRE FIGHTERS STAND WATCH AT THE MAIN GATE FROM 6:30
A.M. TO 5:15 P.M., AND 11:30 P.M. TO 12:15 A.M., MONDAY THROUGH FRIDAY.
THEIR DUTIES WHILE ON GATE WATCH INCLUDE CHECKING VISITORS IN AND OUT OF
THE AIRPORT, ISSUING VISITOR PASSES, CONTROLLING TRAFFIC AND GIVING OUT
INFORMATION. IN THE EVENT OF A FIRE, A FIRE FIGHTER ON GATE DUTY IS
INSTRUCTED TO LOCK THE GATE AND RESPOND TO THE FIRE ALARM. THERE ARE 6
INSTALLATION PATROLS MADE EVERY 24 HOURS. IN ADDITION TO CHECKING
BUILDINGS FOR POTENTIAL FIRE HAZARDS, THE FIRE FIGHTERS CHECK TO SEE
THAT THE DOORS OF THE BUILDINGS ARE LOCKED. THE TOTAL AMOUNT OF TIME
EXPENDED BY THE FIRE FIGHTERS IN PERFORMING THE ADDITIONAL SECURITY
FUNCTIONS REPRESENTS APPROXIMATELY 8 PERCENT OF THE TOTAL MANHOURS
WORKED BY THEM DURING AN AVERAGE MONTH.
ALL OF THE FIRE FIGHTERS WORK OUT OF THE BASE FIREHOUSE UNDER THE
DIRECT SUPERVISION OF THE FIRE CHIEF OR THE ASSISTANT CHIEFS EVEN WHILE
PERFORMING SECURITY WORK. NONE OF THESE EMPLOYEES HAVE RECEIVED ANY
TRAINING OR HAVE PARTICIPATED IN DRILLS TO ENABLE THEM TO PERFORM
SECURITY WORK. THE FIRE FIGHTERS WEAR REGULATION FIRE FIGHTERS'
UNIFORMS WHILE PERFORMING SECURITY WORK, ARE NOT ARMED AND HAVE NOT
RECEIVED ANY TRAINING TO GAIN PROFICIENCY IN THE USE OF FIRE ARMS. NOR
DO FIRE FIGHTERS HAVE THE AUTHORITY TO DETAIN OR ARREST INDIVIDUALS.
THE RECORD ALSO REVEALS THAT THEY HAVE NEVER ISSUED TRAFFIC TICKETS AND
HAVE NOT HAD TO INVESTIGATE OR MAKE REPORTS CONCERNING INCIDENTS /2/ OF
PILFERAGE.
PRIOR TO THE MERGING OF THE FIRE FIGHTING AND SECURITY FUNCTIONS, THE
ACTIVITY EMPLOYED A REGULAR GUARD FORCE. EACH GUARD WORE A DISTINCTIVE
GUARD UNIFORM AS WELL AS A SIDE ARM CARRIED IN A GUN HOLSTER. ALTHOUGH
THEY DID NOT POSSESS ARREST AUTHORITY, THEY COULD DETAIN AN INDIVIDUAL
UNTIL LOCAL LAW ENFORCEMENT AUTHORITIES OR FEDERAL MARSHALLS ARRIVED AT
THE BASE TO PICK UP A SUSPECT. ALSO, THEY ISSUED VISITOR PASSES AT THE
GATE AND WERE AUTHORIZED TO ISSUE CITATIONS FOR TRAFFIC INFRACTIONS.
THE GUARDS WORKED OUT OF THE BASE SECURITY OFFICE UNDER THE DIRECT
SUPERVISION OF A SECURITY CHIEF AND THEY WORKED 40 HOURS A WEEK WITH 3
SCHEDULED SHIFTS EACH DAY OF 8 HOURS DURATION.
BASED ON THE FOREGOING FACTS, I FIND THAT THE EVIDENCE DEMONSTRATES
THAT THE ADDED SECURITY FUNCTIONS PERFORMED BY THE FIRE FIGHTERS IN THE
SUBJECT CASE DO NOT BRING THEM WITHIN THE MEANING OF "GUARDS" AS SET
FORTH IN SECTION 2(D) OF THE EXECUTIVE ORDER. IN PERFORMING THE
SECURITY FUNCTIONS, THE FIRE FIGHTERS WEAR THEIR REGULAR FIRE FIGHTERS
UNIFORMS; THEY ARE NOT ARMED OR DEPUTIZED; THEY HAVE NOT RECEIVED
INSTRUCTIONS OR TRAINING IN CHECKING THE INSTALLATION FOR THE PRESENCE
OF UNAUTHORIZED PERSONS, OR FOR THE LOSS OF PROPERTY, OR THE ENFORCEMENT
OF RULES ESTABLISHED BY THE ACTIVITY; THEY ARE SUPERVISED BY THE FIRE
CHIEF AND NOT BY THE CHIEF OF SECURITY; AND, THEIR PERFORMANCE OF THE
SECURITY DUTIES APPEARS TO BE TEMPORARY. MOREOVER, THEIR SECURITY
DUTIES ARE CLEARLY SUBORDINATE TO THEIR DUTIES AND RESPONSIBILITIES AS
/3/ FIRE FIGHTERS.
IN THE PARTICULAR CIRCUMSTANCES OF THE CASE, I FIND THAT THE
PERFORMANCE OF CERTAIN LIMITED SECURITY DUTIES BY THE FIRE FIGHTERS DOES
NOT IN ANY REAL SENSE GIVE RISE TO A CONFLICT OF LOYALTY BETWEEN THE
ACTIVITY ON THE ONE HAND, AND THEIR FELLOW EMPLOYEES ON THE OTHER.
ACCORDINGLY, I FIND THAT THE PETITIONED FOR EMPLOYEES ARE NOT "GUARDS"
WITHIN THE MEANING OF SECTION 2(D) OF EXECUTIVE ORDER 11491 AND THAT THE
FOLLOWING UNIT IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION:
ALL FIRE FIGHTERS EMPLOYED BY THE 910TH TACTICAL AIR SUPPORT GROUP
(AFRES), YOUNGSTOWN MUNICIPAL AIRPORT, VIENNA, OHIO, EXCLUDING ALL
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN PURELY
CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN
THE VOTING UNIT DESCRIBED ABOVE, AS EARLY AS POSSIBLE, BUT NOT LATER
THAN 30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR
SHALL SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE VOTING UNIT WHO WERE
EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS, /4/ AFL-CIO, LOCAL F-154.
DATED, WASHINGTON, D.C.
FEBRUARY 12, 1971
/1/ UNDER SECTION 10(C) OF EXECUTIVE ORDER 11491, AN ACTIVITY SHALL
NOT ACCORD EXCLUSIVE RECOGNITION TO A LABOR ORGANIZATION AS THE
REPRESENTATIVE OF EMPLOYEES IN A UNIT OF GUARDS IF THE ORGANIZATION
ADMITS TO MEMBERSHIP OR IS AFFILIATED DIRECTLY OR INDIRECTLY WITH AN
ORGANIZATION WHICH ADMITS TO MEMBERSHIP, EMPLOYEES OTHER THAN GUARDS.
THERE WAS NO DISPUTE IN THE RECORD THAT THE IAFF ADMITS TO MEMBERSHIP
EMPLOYEES OTHER THAN GUARDS.
/2/ AS RECENTLY AS FISCAL YEAR 1970, THE OTHER 9 CIVILIAN OPERATED
BASES WHICH COMPRISE HEADQUARTERS AIR FORCE RESERVE, MERGED THE FIRE
FIGHTING AND SECURITY FUNCTIONS. AT PRESENT HOWEVER, THE EVIDENCE
REVEALS THAT THESE FUNCTIONS HAVE BEEN SEVERED AT ALL BASES EXCEPT ONE
AT MILWAUKEE, WISCONSIN AND THE FACILITY INVOLVED IN THE SUBJECT CASE.
THE ACTIVITY STATED THAT IT WAS HOPEFUL THAT BY THE BEGINNING OF FISCAL
YEAR 1972 THE TWO FUNCTIONS WILL BE COMPLETELY SEVERED AT ALL OF ITS
FACILITIES.
/3/ THE SUBORDINATE NATURE OF THEIR SECURITY DUTIES IS EVIDENCED BY,
AMONG OTHER THINGS, THE LIMITED AMOUNT OF TIME SPENT IN THIS REGARD AND
THE FACT THAT IF A FIRE OCCURS, THEIR PRIMARY RESPONSIBILITY IS TO
ANSWER THE FIRE ALARM NOTWITHSTANDING THE FACT THAT THEY ARE ENGAGED AT
THAT TIME IN A SECURITY FUNCTION.
/4/ REPRESENTATIVES OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1952 (AFGE), ENTERED ON APPEARANCE AT THE HEARING AND WERE
PERMITTED TO PARTICIPATE, THROUGHOUT, PLAYING A "NEUTRAL ROLE". THE
EVIDENCE REVEALS THAT THE AFGE DID NOT SUBMIT A SHOWING OF INTEREST TO
THE AREA ADMINISTRATOR, NOR DID IT PRESENT ANY OTHER BASIS TO SUPPORT
ITS INTERVENTION IN THIS MATTER. ACCORDINGLY, THE PLACEMENT OF ITS NAME
ON THE BALLOT IS NOT WARRANTED.
1 A/SLMR 11; P. 94; CASE NO. 46-1812(32); FEBRUARY 5, 1971.
DEFENSE SUPPLY AGENCY,
DEFENSE GENERAL SUPPLY CENTER,
RICHMOND, VIRGINIA
A/SLMR NO. 11
THIS CASE, WHICH AROSE AS A RESULT OF A REPRESENTATION PETITION FILED
BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2047
(AFGE), PRESENTED A QUESTION AS TO THE APPROPRIATENESS OF THE UNIT
SOUGHT.
AFGE REQUESTED A UNIT OF ALL NONSUPERVISORY GENERAL SCHEDULE AND WAGE
BOARD EMPLOYEES AT THE DEFENSE GENERAL SUPPLY CENTER IN RICHMOND,
VIRGINIA. THE INTERVENOR, THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, AGREED THAT THE UNIT PETITIONED FOR WAS APPROPRIATE. THE
ACTIVITY OPPOSED THE PROPOSED UNIT BASED ON THE VIEW THAT IN ORDER TO
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS THE
PROPOSED UNIT SHOULD BE EXPANDED TO INCLUDE NONSUPERVISORY EMPLOYEES OF
A TENANT OF THE ACTIVITY, THE UNITED STATES ARMY SUPPORT COMMAND (USASC)
PLUS ALL NONAPPROPRIATED FUND EMPLOYEES OF THE ACTIVITY.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
EMPLOYEES SOUGHT BY THE AFGE CONSTITUTED AN APPROPRIATE UNIT AND,
ACCORDINGLY, HE DIRECTED THAT AN ELECTION BE HELD IN THAT UNIT. HE
NOTED THAT THE EMPLOYEES IN THE UNIT SOUGHT HAD COMMON SUPERVISION,
WORKING CONDITIONS, HOURS OF WORK, GRIEVANCE PROCEDURES AND LEAVE
POLICIES. WITH RESPECT TO THE ACTIVITY'S CONTENTION THAT THE UNIT
SHOULD INCLUDE USASC EMPLOYEES, THE ASSISTANT SECRETARY FOUND THESE
EMPLOYEES DID NOT HAVE A COMMUNITY OF INTEREST WITH THE EMPLOYEES IN THE
CLAIMED UNIT SINCE THEY DID NOT SHARE A COMMON AGENCY MISSION, COMMON
SUPERVISION, OR COMMON GRIEVANCE PROCEDURES. IN ADDITION, HE NOTED THAT
THE ACTIVITY'S EMPLOYEES AND USASC EMPLOYEES WERE IN SEPARATE
COMPETITIVE AREAS FOR PURPOSES OF REDUCTIONS-IN-FORCE, THAT THERE WERE
SEPARATE CHANNELS PROVIDED FOR THE APPROVAL OF CONTRACTS, AND THAT THE
ARMY MATERIEL COMMAND, PARENT ORGANIZATION OF THE USASC, TOOK THE
POSITION THAT A COMBINED UNIT WOULD NOT BE APPROPRIATE.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE ACTIVITY'S
NONAPPROPRIATED FUND EMPLOYEES DID NOT SHARE A COMMUNITY OF INTEREST
WITH THE EMPLOYEES IN THE CLAIMED UNIT SINCE THEIR JOBS WERE NOT SIMILAR
TO THOSE PERFORMED BY EMPLOYEES IN THE UNIT SOUGHT BY THE AFGE AND THEY
DID NOT SHARE COMMON SUPERVISION, WORKING CONDITIONS, HOURS OF WORK,
GRIEVANCE PROCEDURES, REDUCTION-IN-FORCE ACTIONS, LEAVE OR PAY POLICIES.
DEFENSE SUPPLY AGENCY,
DEFENSE GENERAL SUPPLY CENTER,
RICHMOND, VIRGINIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2047
AND
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER EUGENE M. LEVINE. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE PETITIONER AND THE INTERVENOR, THE ASSISTANT SECRETARY FINDS;
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. THE PETITIONER, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT
OF ALL NONSUPERVISORY GENERAL SCHEDULE AND NONSUPERVISORY WAGE BOARD
EMPLOYEES IN THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA. THE
INTERVENOR, HEREIN CALLED NAGE, AGREES THAT THE UNIT PETITIONED FOR IS
APPROPRIATE. THE ACTIVITY ASSERTS THAT IN ORDER TO PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF OPERATIONS THE UNIT PETITIONED FOR ALSO
SHOULD INCLUDE CERTAIN EMPLOYEES OF A TENANT OF THE ACTIVITY PLUS ALL
NONAPPROPRIATED FUND EMPLOYEES OF THE ACTIVITY.
THE ACTIVITY, DEFENSE GENERAL SUPPLY CENTER, IS LOCATED IN RICHMOND,
VIRGINIA. APPROXIMATELY SEVENTY PERCENT OF ITS 3100 EMPLOYEES ARE IN
THE GENERAL SCHEDULE CATEGORY AND THE REMAINDER ARE WAGE BOARD
EMPLOYEES. ABOUT 2500 OF THE EMPLOYEES IN THE CLAIMED UNIT WORK IN
THREE BUILDINGS LOCATED WITHIN A RADIUS OF 200 FEET OF EACH OTHER. THE
REMAINING EMPLOYEES WORK IN A STORAGE OPERATION ABOUT ONE-HALF MILE FROM
THE OTHER EMPLOYEES. THE BASIC MISSION OF THE ACTIVITY AND OF SIMILAR
SUPPLY CENTERS LOCATED ELSEWHERE THROUGHOUT THE COUNTRY IS TO INSURE
THAT THE WORLD-WIDE SUPPLY REQUIREMENTS OF THE DEPARTMENT OF DEFENSE ARE
MET. THUS, THE WORK OF THE ACTIVITY IS PRIMARILY THAT OF PROCUREMENT
AND SUPPLY. ITS LARGE TECHNICAL DIRECTORATE OF ENGINEERING AND
CATALOGING TECHNICIANS SEES TO IT THAT THE 300,000 DIFFERENT ITEMS USED
BY THE VARIOUS MILITARY SERVICES MEET GOVERNMENT SPECIFICATIONS AND ARE
AVAILABLE FOR DISTRIBUTION /1/ AS NEEDED.
THE ACTIVITY HAS A TENANT, THE U.S. ARMY SUPPORT COMMAND, HEREIN
CALLED USASC, WHICH EMPLOYS APPROXIMATELY 300 PERSONS IN RICHMOND. THE
USASC/S MISSION IS SUPPLY AND MAINTENANCE. IT REBUILDS ENGINES OF ALL
DESCRIPTIONS, BUILDS AND REBUILDS PALLETS USED FOR DROPPING HEAVY
EQUIPMENT FROM AIRPLANES, AND RESTORES HELMETS, MESS GEAR, CLOTHING,
PARACHUTES, TENTS AND RELATED ITEMS. ABOUT 80 USASC CLERICAL EMPLOYEES
WORK IN THE SAME BUILDING AS CLERICAL EMPLOYEES OF THE ACTIVITY BUT NOT
IN THE SAME ROOM. THE REMAINING 220 USASC EMPLOYEES WORK BY THEMSELVES
IN A SEPARATE BUILDING. THE ACTIVITY FURNISHES MOST OF THE ESSENTIAL
STAFF ASSISTANCE SERVICES AND SUPPORT REQUIRED BY THE USASC UNDER AN
ESTABLISHED CROSS-SERVICE AGREEMENT. THESE INCLUDE CIVILIAN PERSONNEL
ADMINISTRATION, COMPTROLLER SERVICES, DATA PROCESSING, REPAIRS AND
UTILITIES, SAFETY AND INDUSTRIAL HEALTH SERVICES, COMMUNICATIONS AND
EQUIPMENT. IN THE AREA OF CIVILIAN PERSONNEL ADMINISTRATION, THE
PERSONNEL POLICIES AND REGULATIONS OF THE COMMANDER OF THE ACTIVITY
APPLY TO EMPLOYEES OF THE /2/ USASC. FURTHER, THE ACTIVITY'S OFFICE OF
CIVILIAN PERSONNEL FURNISHES COMPLETE STAFF ASSISTANCE IN SUCH AREAS AS
EMPLOYMENT, HUMAN RELATIONS, EMPLOYEE DEVELOPMENT, INCENTIVE AWARDS, AND
LABOR-MANAGEMENT RELATIONS. HOWEVER, THE USASC'S COMMANDING OFFICER
REPORTS DIRECTLY TO THE ARMY MATERIEL COMMAND IN THE WASHINGTON, D.C.
AREA AND RETAINS AUTHORITY AND RESPONSIBILITY FOR THE EFFECTIVE
MANAGEMENT AND DIRECTION OF EMPLOYEES UNDER HIS COMMAND. MOREOVER, THE
RESPECTIVE COMMANDING OFFICERS OF THE ACTIVITY AND THE USASC HAVE NO
AUTHORITY OVER EACH OTHER'S EMPLOYEES IN MATTERS OF REDUCTIONS-IN-FORCE,
EMPLOYEE MISCONDUCT AND ADVERSE ACTIONS.
WITH RESPECT TO BARGAINING HISTORY, THE RECORD REVEALS THAT IN 1963,
THE AFGE REQUESTED RECOGNITION IN A UNIT COMPOSED OF EMPLOYEES OF BOTH
THE ACTIVITY /3/ AND THE USASC. AT THAT TIME THE OFFICERS COMMANDING
THE ACTIVITY AND THE USASC AGREED TO THE COMBINED UNIT. HOWEVER, HIGHER
AUTHORITY DENIED THE AFGE'S REQUEST. IN 1967, THE AFGE WAS GRANTED
EXCLUSIVE RECOGNITION IN A UNIT COMPOSED OF THE CIVILIAN EMPLOYEES OF
THE ACTIVITY'S RESTAURANT, A NONAPPROPRIATED FUND ACTIVITY.
SUBSEQUENTLY, AN AGREEMENT COVERING THESE EMPLOYEES WAS CONSUMMATED AND
CONTINUED IN FORCE UNTIL THE END OF ITS TWO-YEAR TERM /4/ IN 1969. ALSO
IN 1967, THE AFGE WAS ACCORDED FORMAL RECOGNITION IN A UNIT OF EMPLOYEES
AT THE USASC. THE AFGE OBTAINED EXCLUSIVE RECOGNITION FOR THIS UNIT IN
1968. PURSUANT TO A REQUEST BY THE AFGE IN 1969, AN ELECTION WAS HELD
AT THE ACTIVITY IN A UNIT SUBSTANTIALLY THE SAME AS THAT PETITIONED FOR
IN THIS CASE. THE AFGE DID NOT RECEIVE A MAJORITY OF THE VALID BALLOTS
CAST.
BASED ON THE FOREGOING, I FIND THAT THE EMPLOYEES IN THE UNIT
PETITIONED FOR SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST IN
THAT THEY HAVE COMMON SUPERVISION, WORKING CONDITIONS, HOURS OF WORK,
GRIEVANCE PROCEDURES, AND LEAVE POLICIES. THEY ALSO SHARE A COMMON
MISSION IN CARRYING OUT THE OBJECTIVES OF THE ACTIVITY. WITH RESPECT TO
THE CONTENTION OF THE ACTIVITY, THAT THE UNIT IS INAPPROPRIATE BECAUSE
IT DOES NOT INCLUDE EMPLOYEES OF THE USASC, THE EVIDENCE ESTABLISHED
THAT ALTHOUGH THE NONSUPERVISORY GENERAL SCHEDULE AND WAGE BOARD
EMPLOYEES OF BOTH THE ACTIVITY AND THE USASC SHARE SUBSTANTIALLY THE
SAME WORKING CONDITIONS, HOURS OF WORK, LEAVE POLICIES AND PAY PLANS,
THEY DO NOT SHARE A COMMON AGENCY MISSION, COMMON SUPERVISION, OR COMMON
GRIEVANCE PROCEDURES. IN ADDITION, THESE EMPLOYEES ARE IN SEPARATE
COMPETITIVE AREAS FOR PURPOSES OF REDUCTIONS-IN-FORCE AND SEPARATE
CHANNELS ARE PROVIDED FOR APPROVAL OF NEGOTIATED CONTRACTS. MOREOVER,
THE AFGE PREVIOUSLY WAS GRANTED EXCLUSIVE RECOGNITION BY THE USASC IN A
UNIT COMPOSED OF ALL NONSUPERVISORY WAGE BOARD AND GENERAL SCHEDULE
EMPLOYEES AND THE EVIDENCE ESTABLISHED THAT NEGOTIATIONS ON AN AGREEMENT
ARE IN PROCESS. FINALLY, IT WAS NOTED THAT THE RECORD REVEALS THAT THE
ARMY MATERIEL COMMAND, PARENT ORGANIZATION OF THE USASC, TAKES THE
POSITION THAT A UNIT COMBINING THE EMPLOYEES OF THE ACTIVITY AND USASC
WOULD NOT BE APPROPRIATE. IN THESE CIRCUMSTANCES, I FIND THAT THE USASC
EMPLOYEES DO NOT SHARE A COMMUNITY OF INTEREST WITH THE EMPLOYEES IN THE
CLAIMED /5/ UNIT. ALSO, CONSIDERING THE SEPARATE BARGAINING HISTORY AS
TO USASC EMPLOYEES AND THE ARMY MATERIEL COMMAND'S POSITION THAT A
COMBINED UNIT WOULD BE INAPPROPRIATE, THE INCLUSION OF USASC EMPLOYEES
IN THE CLAIMED UNIT WOULD NOT, IN MY VIEW, PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS.
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491:
ALL GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES AT THE DEFENSE GENERAL
SUPPLY CENTER, RICHMOND, VIRGINIA BUT EXCLUDING ALL NONAPPROPRIATED FUND
EMPLOYEES, /6/ EMPLOYEES EMPLOYED BY THE UNITED STATES ARMY SUPPORT
COMMAND, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
AND SUPERVISORS AND GUARDS AS DEFINED /7/ IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2047; BY THE NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES; OR BY NEITHER.
DATED, WASHINGTON, D.C.
FEBRUARY 5, 1971
/1/ THE ACTIVITY REPORTS TO THE BRANCH OF THE DEFENSE SUPPLY AGENCY
LOCATED IN CAMERON STATION, ALEXANDRIA, VIRGINIA. ,4 /2/ FOR EXAMPLE,
EMPLOYEES OF BOTH COMMANDS COMPETE UNDER THE SAME MERIT PROMOTION
PROGRAM FOR VACANCIES IN BOTH COMMANDS.
/3/ THERE IS NO EVIDENCE THAT NONAPPROPRIATED FUND EMPLOYEES WERE
SOUGHT TO BE INCLUDED IN THIS UNIT.
/4/ THIS AGREEMENT WAS NOT RENEWED
/5/ I ALSO FIND THAT THE ACTIVITY'S NONAPPROPRIATED FUND EMPLOYEES DO
NOT SHARE A COMMUNITY OF INTEREST WITH EMPLOYEES IN THE CLAIMED UNIT.
THESE NONAPPROPRIATED FUND EMPLOYEES WORK IN THE OFFICERS' OPEN MESS,
THE NONCOMMISSIONED OFFICERS' OPEN MESS, AND IN THE ACTIVITY'S CAFETERIA
AND BOWLING ALLEY. THEIR JOBS ARE NOT SIMILAR TO THOSE PERFORMED BY THE
EMPLOYEES IN THE UNIT SOUGHT BY THE AFGE AND THEY DO NOT SHARE COMMON
SUPERVISION, WORKING CONDITIONS, HOURS OF WORK, GRIEVANCE PROCEDURES,
REDUCTION-IN-FORCE ACTIONS, LEAVE OR PAY POLICIES.
/6/ MY DISPOSITION WITH RESPECT TO NONAPPROPRIATED FUND EMPLOYEES IS
LIMITED TO THE FACTS OF THIS CASE.
/7/ IN ITS PETITION THE AFGE EXCLUDED "TEMPORARY EMPLOYEES." BECAUSE
THE RECORD DOES NOT SET FORTH SUFFICIENT FACTS AS TO THIS CLASSIFICATION
OF EMPLOYEES, I SHALL MAKE NO FINDINGS AS TO WHETHER THERE ARE, IN FACT,
"TEMPORARY EMPLOYEES" EMPLOYED BY THE ACTIVITY WHO, BECAUSE OF THEIR
TEMPORARY STATUS, SHOULD BE EXCLUDED FROM THE UNIT.
1 A/SLMR 10; P. 71; CASE NOS. 46-1698(CO), 46-1593(RO); JANUARY
29, 1971.
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC.
A/SLMR NO. 10
THIS CASE AROSE AS A RESULT OF A PETITION FILED BY THE PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), REQUESTING A NATIONWIDE
UNIT OF ALL NONSUPERVISORY AIR TRAFFIC CONTROL SPECIALISTS, WITH CERTAIN
SPECIFIED EXCLUSIONS. THE FEDERAL AVIATION ADMINISTRATION CHALLENGED
THE STATUS OF PATCO AS A LABOR ORGANIZATION ON THE BASIS THAT PATCO HAD
ENGAGED IN A STRIKE AND AS A RESULT THEREOF WAS DISQUALIFIED AS A LABOR
ORGANIZATION WITHIN THE MEANING OF SECTION 2(E)(2) OF EXECUTIVE ORDER
11491. SIMILAR CHALLENGES WERE MADE BY THE AIR TRAFFIC CONTROL
ASSOCIATION (ATCA) AND BY THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES (NAGE) WHICH ALSO FILED AN UNFAIR LABOR PRACTICE COMPLAINT
AGAINST PATCO, ALLEGING THAT PATCO HAD ENGAGED IN A STRIKE OF AIR
TRAFFIC CONTROLLERS IN VIOLATION OF SECTION 19(B)(1) AND (4) OF THE
EXECUTIVE ORDER. THEREAFTER, PATCO CHALLENGED THE STATUS OF ATCA AS A
LABOR ORGANIZATION ON THE GROUNDS THAT IT DOES NOT MEET THE GENERAL
REQUIREMENTS OF THE MAIN PROVISIONS OF SECTION 2(E) OF THE EXECUTIVE
ORDER IN THAT IT DOES NOT EXIST, IN WHOLE OR IN PART, FOR THE PURPOSE OF
. . . "DEALING WITH AGENCIES CONCERNING GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, OR OTHER MATTERS AFFECTING THE WORKING CONDITIONS OF
THEIR EMPLOYEES . . . ", AND THAT ATCA FALLS WITHIN THE DISQUALIFICATION
SET FORTH IN SECTION 2(E)(1) OF THE EXECUTIVE ORDER IN THAT IT . . .
"CONSISTS OF MANAGEMENT OFFICIALS OR SUPERVISORS . . . "
A CONSOLIDATED HEARING ON THE ISSUES WAS HELD BEFORE A HEARING
EXAMINER. UPON REVIEW OF THE HEARING EXAMINER'S REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD OF THE CASE, INCLUDING THE
EXCEPTIONS, STATEMENTS OF POSITIONS AND BRIEFS, THE ASSISTANT SECRETARY
FOUND THAT:
(1) ATCA IS A LABOR ORGANIZATION WITHIN THE MEANING OF SECTION 2(E)
OF THE EXECUTIVE ORDER.
(2) PATCO CALLED THE CONTROLLERS' STRIKE, ASSISTED OR PARTICIPATED
THEREIN, AND CONDONED THE STRIKE BY FAILING TO TAKE EFFECTIVE
AFFIRMATIVE ACTION TO PREVENT OR STOP IT. FURTHER, AS A RESULT OF THESE
ACTS, PATCO LOST ITS STATUS AS A LABOR ORGANIZATION WITHIN THE MEANING
OF SECTION 2(E)(2) OF THE ORDER.
(3) PATCO ENGAGED IN CONDUCT VIOLATIVE OF SECTION 19(B)(4) OF THE
EXECUTIVE ORDER IN THAT IT CALLED OR ENGAGED IN A STRIKE, WORK STOPPAGE
OR SLOWDOWN, OR CONDONED SUCH ACTIVITY BY FAILING TO TAKE AFFIRMATIVE
ACTION TO PREVENT OR STOP IT.
(4) PATCO'S CONDUCT, WHILE VIOLATIVE OF SECTION 19(B)(4) OF THE
EXECUTIVE ORDER, DOES NOT ALSO CONSTITUTE A VIOLATION OF SECTION
19(B)(1) SINCE IT WAS NOT SHOWN THAT THE STRIKE CONSTITUTED
INTERFERENCE, RESTRAINT OR COERCION OF EMPLOYEES WITHIN THE MEANING OF
THE EXECUTIVE ORDER. IN ADDITION, THE EVIDENCE DOES NOT WARRANT A
FINDING THAT PATCO COMMITTED INDEPENDENT ACTS OF INTERFERENCE, RESTRAINT
OR COERCION AGAINST INDIVIDUAL CONTROLLERS.
(5) THE STRIKE AND THE ATTENDANT DISQUALIFICATION UNDER SECTION
2(E)(2) OPERATED TO NULLIFY ALL PETITIONS FILED BY PATCO. ACCORDINGLY,
ALL PENDING PATCO PETITIONS ARE TO BE DISMISSED. SIMILARLY, ANY PATCO
REQUESTS OR MOTIONS TO INTERVENE ALSO WILL BE DISMISSED ALONG WITH ANY
UNFAIR LABOR PRACTICE COMPLAINTS PENDING AS OF THE DATE OF THE DECISION
AND ORDER.
IN REGARD TO THE REMEDY TO BE APPLIED IN THIS SITUATION THE ASSISTANT
SECRETARY REQUIRED THAT:
(1) PATCO-MEBA BE BARRED FROM THE USE OF THE EXECUTIVE ORDER UNTIL IT
DEMONSTRATES TO THE SATISFACTION OF THE ASSISTANT SECRETARY THAT IT HAS
COMPLIED WITH HIS DECISION AND ORDER AND WILL COMPLY IN THE FUTURE WITH
THE PROVISIONS OF THE EXECUTIVE ORDER. THE PERIOD OF BAR IS TO BE A
MINIMUM OF 60 DAYS FROM THE DATE OF POSTING OR MAILING (WHICHEVER IS
LATER) OF THE NOTICE TO MEMBERS AND EMPLOYEES REQUIRED BY THE DECISION
AND ORDER.
(2) PATCO ESTABLISH NEW SHOWINGS OF INTEREST IN ORDER TO PARTICIPATE,
EITHER AS PETITIONER OR INTERVENOR, IN FUTURE REPRESENTATION MATTERS.
ANY NEW SHOWINGS OF INTEREST ARE TO BE IN THE FORM OF AUTHORIZATION
CARDS WHICH REFLECT PATCO'S AFFILIATION WITH THE NATIONAL MARINE
ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO (MEBA) AND THE CARD MUST BE
DATED AT LEAST TEN DAYS AFTER THE POSTING OR MAILING OF THE NOTICE TO
ALL MEMBERS AND EMPLOYEES, WHICHEVER IS LATER.
(3) PATCO-MEBA CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE AND
POST IN ALL OF ITS NATIONAL AND LOCAL BUSINESS OFFICES AND MEETING
PLACES FOR A PERIOD OF 60 CONSECUTIVE DAYS A PRESCRIBED NOTICE TO ALL
MEMBERS AND EMPLOYEES, SIGNED BY ITS PRESENT NATIONAL PRESIDENT AND
BOARD CHAIRMAN. FURTHER, TO INSURE THAT ALL CONTROLLERS ARE MADE AWARE
OF THE CONTENT OF THE NOTICE, PATCO-MEBA IS REQUIRED TO MAIL A COPY OF
THE SIGNED NOTICE TO EACH OF ITS MEMBERS AND THE FEDERAL AVIATION
ADMINISTRATION IS REQUIRED TO POST THE NOTICE AT PLACES WHERE IT
CUSTOMARILY POSTS INFORMATION TO ITS CONTROLLERS.
(4) FAA AND PATCO-MEBA BE PRECLUDED FROM ENTERING INTO OR GIVING
EFFECT TO ANY DUES DEDUCTION AGREEMENTS DURING THE PERIOD OF BAR. THIS
PROHIBITION SHALL APPLY ALSO TO THE PATCO LOCALS HAVING EXCLUSIVE AND
FORMAL RECOGNITION GRANTED UNDER EXECUTIVE ORDER 10988.
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, /1/ INC.
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, INC.
AND
FEDERAL AVIATION ADMINISTRATION
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, /1/ INC.
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC:
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES: AIR TRAFFIC CONTROL
ASSOCIATION, INC.: NATIONAL FEDERATION OF FEDERAL EMPLOYEES: AND
INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS
ON OCTOBER 5, 1970, HEARING EXAMINER LOUIS LIBBIN ISSUED HIS REPORT
AND RECOMMENDATIONS /2/ IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC. (PATCO) HAD
ENGAGED IN A STRIKE IN VIOLATION OF SECTION 19(B)(4) OF EXECUTIVE ORDER
11491 AND WAS, AS A RESULT THEREOF, DISQUALIFIED AS A LABOR ORGANIZATION
WITHIN THE MEANING OF SECTION 2(E)(2) OF THE ORDER. HAVING FOUND THAT
PATCO ENGAGED IN VIOLATIVE CONDUCT, THE HEARING EXAMINER RECOMMENDED
THAT IT BE REQUIRED TO TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN
THE ATTACHED REPORT AND RECOMMENDATIONS. THE EXAMINER ALSO FOUND THAT
THE AIR TRAFFIC CONTROL ASSOCIATION, INC. (ATCA) IS A LABOR ORGANIZATION
WITHIN THE MEANING OF SECTION 2(E) AND 2(E)(1) OF THE EXECUTIVE ORDER.
ON OR ABOUT NOVEMBER 2, 1970, THE COMPLAINANT, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, INC. (NAGE); THE ACTIVITY, FEDERAL AVIATION
ADMINISTRATION (FAA); AND THE INTERVENING AIR TRAFFIC CONTROL
ASSOCIATION, INC. (ATCA); FILED EXCEPTIONS, WITH SUPPORTING BRIEFS, TO
THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE ENTIRE RECORD IN
THE SUBJECT CASE, INCLUDING THE EXCEPTIONS, STATEMENTS OF POSITIONS AND
BRIEFS, I ADOPT THE FINDINGS AND RECOMMENDATIONS OF THE HEARING EXAMINER
TO THE EXTENT THAT THEY ARE CONSISTENT WITH THE FOLLOWING:
A. THE ATCA ISSUE
PATCO HAS CHALLENGED THE LABOR ORGANIZATION STATUS OF THE AIR TRAFFIC
CONTROL ASSOCIATION, INC. (ATCA) ON THE GROUNDS THAT (1) IT DOES NOT
MEET THE GENERAL REQUIREMENTS OF THE MAIN PROVISIONS OF SECTION 2(E) OF
THE EXECUTIVE ORDER IN THAT IT DOES NOT EXIST, IN WHOLE OR IN PART, FOR
THE PURPOSE OF " . . . DEALING WITH AGENCIES CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING THE WORKING
CONDITIONS OF THEIR EMPLOYEES . . . "; AND THAT (2) ATCA FALLS WITHIN
THE DISQUALIFICATION SET FORTH IN SECTION W(E)(1) OF THE EXECUTIVE ORDER
IN THAT IT . . . "CONSISTS OF MANAGEMENT OFFICIALS OR SUPERVISORS . . .
"
AFTER CAREFULLY REVIEWING THE EVIDENCE PRESENTED I ADOPT THE FINDINGS
OF THE HEARING EXAMINER THAT ATCA IS A LABOR ORGANIZATION WITHIN THE
MEANING OF SECTION 2(E) OF THE EXECUTIVE ORDER.
B. THE LABOR ORGANIZATION STATUS OF PATCO UNDER SECTION 2(E)
THE RECORD CLEARLY SUPPORTS THE HEARING EXAMINER'S FINDING THAT
PATCO, BY ITS CONDUCT AND ACTIVITIES IN FEBRUARY, MARCH AND APRIL 1970,
ASSISTED OR PARTICIPATED IN A STRIKE AGAINST THE GOVERNMENT OF THE
UNITED STATES WITHIN THE MEANING OF SECTION 2(E)(2) OF THE EXECUTIVE
ORDER. THE HEARING EXAMINER PROPERLY REJECTED PATCO'S CONTENTIONS THAT
IT DID NOT IN ANY WAY AUTHORIZE, ASSIST, OR PARTICIPATE IN THE
CONTROLLERS' "SICKOUT;" THAT THE CONTROLLERS WERE ACTING INDIVIDUALLY
RATHER THAN CONCERTEDLY; AND THAT THE CONTROLLERS'WORK STOPPAGE WAS
JUSTIFIED BECAUSE OF UNSAFE AND DANGEROUS /3/ CONDITIONS. HERR 17-22.
I FIND, THEREFORE, IN AGREEMENT WITH THE HEARING EXAMINER, THAT PATCO
CALLED THE CONTROLLERS' STRIKE, ASSISTED OR PARTICIPATED THEREIN, AND
CONDONED THE STRIKE BY FAILING TO TAKE EFFECTIVE AFFIRMATIVE ACTION TO
PREVENT OR STOP IT. I, THEREFORE, CONCLUDE THAT AS A RESULT OF THESE
ACTS, PATCO LOST ITS STATUS AS A LABOR ORGANIZATION WITHIN THE MEANING
OF SECTION 2(E)(2) OF THE ORDER.
C. THE UNFAIR LABOR PRACTICE ISSUES
THE EVIDENCE SUPPORTS THE EXAMINER'S FINDING THAT PATCO ENGAGED IN
CONDUCT VIOLATIVE OF SECTION 19(B)(4) OF THE EXECUTIVE ORDER IN THAT IT
CALLED OR ENGAGED IN A STRIKE, WORK STOPPAGE OR SLOWDOWN, OR CONDONED
SUCH ACTIVITY BY FAILING TO TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP
IT.
WHILE THE CONDUCT ENGAGED IN BY PATCO CLEARLY FALLS WITHIN THE
PROHIBITION CONTAINED IN SECTION 19(B)(4), PATCO ARGUES THAT NO
VIOLATION OF SECTION 19(B)(4) CAN BE FOUND SINCE THE VERY CONDUCT IN
WHICH IT ENGAGED SERVED TO DEPRIVE IT OF ITS STATUS AS A LABOR
ORGANIZATION WITHIN THE MEANING OF SECTION 2(E)(2). THUS, THE ARGUMENT
CONTINUES, IF PATCO IS FOUND NOT TO BE A LABOR ORGANIZATION WITHIN THE
MEANING OF SECTION 2(E) OF THE EXECUTIVE ORDER (ESSENTIALLY BECAUSE IT
CALLED OR ENGAGED IN A STRIKE) IT CANNOT BE HELD ACCOUNTABLE FOR A
VIOLATION UNDER SECTION 19(B) WHICH PROHIBITS "LABOR ORGANIZATIONS" FROM
ENGAGING IN CERTAIN PRACTICES SUCH AS CALLING OR ENGAGING IN A STRIKE.
ACCEPTANCE OF THIS ARGUMENT WOULD EFFECTIVELY NULLIFY SECTION 19(B)(4)
OF THE EXECUTIVE ORDER. THEREFORE, THE ARGUMENT MUST BE REJECTED.
ACCORDINGLY, I ADOPT THE FINDING OF THE HEARING EXAMINER THAT PATCO
VIOLATED SECTION 19(B)(4) OF THE EXECUTIVE ORDER. HERR 23-24. ALSO, I
ACCEPT THE HEARING EXAMINER'S FINDING THAT PATCO'S CONDUCT IN THIS
SITUATION, WHILE VIOLATIVE OF SECTION 19(B)(4) OF THE EXECUTIVE ORDER,
DOES NOT ALSO CONSTITUTE A VIOLATION OF SECTION 19(B)(1) SINCE IT HAS
NOT BEEN SHOWN THAT THE STRIKE CONSTITUTED INTERFERENCE, RESTRAINT OR
COERCION OF EMPLOYEES WITHIN THE MEANING OF THE EXECUTIVE ORDER. IN
ADDITION, THE HEARING EXAMINER CORRECTLY CONCLUDED THAT THE EVIDENCE
DOES NOT WARRANT A FINDING THAT PATCO COMMITTED INDEPENDENT ACTS OF
INTERFERENCE, RESTRAINT OR COERCION AGAINST INDIVIDUAL CONTROLLERS.
D. PATCO'S REPRESENTATION PETITIONS
ON FEBRUARY 18, 1970, PATCO FILED A PETITION FOR CERTIFICATION AS
EXCLUSIVE BARGAINING REPRESENTATIVE FOR A NATIONWIDE UNIT OF ALL
"NON-SUPERVISORY AIR TRAFFIC CONTROL SPECIALISTS," WITH CERTAIN
SPECIFIED /4/ EXCLUSIONS. PATCO ALSO HAS FILED SEVERAL OTHER PETITIONS
REQUESTING CERTIFICATION AS EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN
VARIOUS BARGAINING UNITS LESS THAN NATIONAL IN SCOPE. I DO NOT FIND IT
NECESSARY TO ENUMERATE EACH OF THESE "LOCAL" PETITIONS AS MY DECISION ON
THE NATIONWIDE PETITION WILL BE APPLIED TO ALL PETITIONS FILED BY, OR IN
BEHALF OF, PATCO. AS DISCUSSED ABOVE, AFTER FILING ITS NATIONWIDE
PETITION PATCO PARTICIPATED IN AND CONDONED A WORK STOPPAGE, WHICH I
FIND DISQUALIFIED IT AS A LABOR ORGANIZATION ENTITLED TO THE RIGHTS
AFFORDED BY THE ORDER. CONSEQUENTLY, I FIND THAT THE STRIKE AND THE
ATTENDANT DISQUALIFICATION UNDER SECTION 2(E)(2) OPERATED TO NULLIFY ANY
PETITIONS FILED BY PATCO. THEREFORE, I WILL NOT ACCEPT AS VALID ANY
PRESENTLY PENDING OR FUTURE PETITIONS OR SHOWINGS OF INTEREST FILED BY,
OR IN BEHALF OF, PATCO UNTIL SUCH TIME AS I HAVE FOUND IT TO BE IN
COMPLIANCE WITH THIS DECISION AND ORDER. MOREOVER, I CONCLUDE THAT
FURTHER PROCESSING OF THE PRESENT PETITIONS WILL NOT EFFECTUATE THE
POLICIES OF THE ORDER. ACCORDINGLY, I SHALL ORDER THAT ALL PENDING
PATCO PETITIONS /5/ BE DISMISSED. SIMILARLY, ANY PATCO REQUESTS OR
MOTIONS TO INTERVENE PRESENTLY PENDING BEFORE THE DEPARTMENT OF LABOR
ALSO WILL BE DISMISSED. AND LASTLY, IF PATCO HAS ANY UNFAIR LABOR
PRACTICES COMPLAINTS PENDING AS OF THE DATE OF THIS DECISION AND ORDER
THESE TOO SHALL BE DISMISSED. HOWEVER, ANY INDIVIDUALS NAMED IN ANY
SUCH COMPLAINTS MAY REFILE COMPLAINTS IN THEIR OWN NAMES NOTWITHSTANDING
THE TIMELINESS PROVISO OF SECTION 203.2 OF THE REGULATIONS, PROVIDED
THAT EACH SUCH COMPLAINT IS REFILED WITHIN 30 DAYS OF ITS DISMISSAL.
E. THE UNFAIR LABOR PRACTICE REMEDY
THIS EXECUTIVE ORDER ATTEMPTS TO BALANCE TWO PRINCIPAL AIMS: (1)
THAT EMPLOYEES (HERE, THE CONTROLLERS) ARE ENTITLED TO REPRESENTATION BY
THE ORGANIZATION OF THEIR CHOICE; AND, (2) THAT LABOR ORGANIZATIONS BE
DETERRED EFFECTIVELY FROM VIOLATING THE PROVISIONS OF THE EXECUTIVE
ORDER.
DESPITE THE FLAGRANT NATURE OF THE VIOLATION, I BELIEVE THAT
PERMANENT DEBARMENT OF PATCO AS AN EMPLOYEE REPRESENTATIVE MIGHT DEPRIVE
CONTROLLERS OF THEIR FREEDOM OF REPRESENTATION TO AN UNWARRANTED EXTENT.
HOWEVER, I FEEL THAT SOME PERIOD OF DEBARMENT IS REQUIRED FOR TWO
REASONS:
1. TO PROVIDE PATCO WITH AN ADEQUATE OPPORTUNITY TO COMPLY WITH THE
AFFIRMATIVE PROVISIONS OF MY REMEDIAL ORDER, AND
2. TO SERVE NOTICE ON ALL LABOR ORGANIZATIONS THAT THE UNITED STATES
GOVERNMENT WILL NOT CONDONE VIOLATIONS OF THE EXECUTIVE ORDER.
ACCORDINGLY, UNTIL SUCH TIME AS THE PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, INC., AFFILIATED WITH THE NATIONAL MARINE
ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO (PATCO-MEBA) CAN DEMONSTRATE
TO MY SATISFACTION THAT IT HAS COMPLIED WITH MY DECISION AND ORDER, AND
THAT IT WILL COMPLY IN THE FUTURE WITH THE PROVISIONS OF THE EXECUTIVE
ORDER, I SHALL NOT PERMIT IT TO UTILIZE THE PROCEDURES AVAILABLE TO A
LABOR ORGANIZATION WITHIN THE MEANING OF SECTION 2(E) OF THE EXECUTIVE
ORDER. IN THIS REGARD, I SHALL NOT ENTERTAIN ANY SUBMISSION BY
PATCO-MEBA TO THIS EFFECT UNTIL 60 DAYS FROM THE DATE OF POSTING OR
MAILING, WHICHEVER IS LATER, OF THE APPENDED NOTICE TO MEMBERS AND
EMPLOYEES WHICH IS REFERRED TO BELOW.
I FIND THAT THE NATURE OF THE VIOLATIVE CONDUCT IN WHICH PATCO
ENGAGED DICTATES THAT IT ESTABLISH NEW SHOWINGS OF INTEREST IN ORDER TO
PARTICIPATE EITHER AS PETITIONER OR INTERVENOR, IN FUTURE REPRESENTATION
MATTERS. ANY NEW SHOWINGS OF INTEREST SHOULD BE IN THE FORM OF
AUTHORIZATION CARDS WHICH REFLECT PATCO'S AFFILIATION WITH THE NATIONAL
MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO (MEBA) AND THE CARDS
MUST BE DATED AT LEAST TEN DAYS AFTER THE POSTING OR THE MAILING OF
NOTICES TO EMPLOYEES OR MEMBERS, WHICHEVER IS LATER.
I SHALL ORDER THAT PATCO-MEBA CEASE AND DESIST FROM THE CONDUCT
HEREIN FOUND VIOLATIVE, AND THAT IT POST FOR A PERIOD OF 60 CONSECUTIVE
DAYS AN APPROPRIATE NOTICE TO EMPLOYEES AND MEMBERS, SIGNED BY ITS
PRESENT NATIONAL PRESIDENT AND BOARD CHAIRMAN, IN ALL OF ITS NATIONAL
AND LOCAL BUSINESS OFFICES AND MEETING PLACES. FURTHER, TO INSURE THAT
ALL CONTROLLERS ARE MADE AWARE OF THE CONTENT OF THIS NOTICE, I SHALL
(1) REQUIRE PATCO-MEBA TO MAIL A COPY OF THE SIGNED NOTICE TO EACH OF
ITS MEMBERS AT HIS LAST KNOWN HOME ADDRESS AND (2) REQUIRE THE FEDERAL
AVIATION ADMINISTRATION TO POST THE NOTICE AT PLACES WHERE IT
CUSTOMARILY POSTS INFORMATION TO ITS CONTROLLERS. ACCORDINGLY, WITHIN
FOURTEEN DAYS OF THE DATE OF THIS DECISION AND ORDER, PATCO-MEBA SHALL
FURNISH FAA WITH SUFFICIENT COPIES OF THE SIGNED NOTICE TO MEET FAA/S
POSTING REQUIREMENTS.
THE RECORD REFLECTS THAT THE DUES DEDUCTION AGREEMENT BETWEEN FAA AND
PATCO PRESENTLY IS SUSPENDED. IT IS MY OPINION THAT THE SUSPENSION
SHOULD BE CONTINUED DURING THE PERIOD IN WHICH PATCO-MEBA IS BARRED FROM
FILING PETITIONS OR COMPLAINTS. THEREFORE, I SHALL ORDER THAT FAA AND
PATCO-MEBA BE PRECLUDED FROM ENTERING INTO OR GIVING EFFECT TO ANY DUES
DEDUCTION AGREEMENTS WITH FAA DURING THE PERIOD OF BAR. THIS
PROHIBITION SHALL APPLY ALSO TO THE PATCO LOCALS HAVING EXCLUSIVE AND
FORMAL RECOGNITION GRANTED UNDER EXECUTIVE ORDER 10988.
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER AND SECTION 203.25(A)
OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT:
1. ALL PENDING PETITIONS AND UNFAIR LABOR PRACTICE COMPLAINTS FILED
BY OR ON BEHALF OF PATCO BE DISMISSED AND THAT BEFORE THE FILING OF ANY
FUTURE PETITIONS OR COMPLAINTS PATCO-MEBA DEMONSTRATES TO THE
SATISFACTION OF THE ASSISTANT SECRETARY THAT IT HAS COMPLIED WITH THIS
DECISION AND ORDER, AND WILL COMPLY IN THE FUTURE WITH THE PROVISIONS OF
EXECUTIVE ORDER 11491.
2. ALL OF PATCO'S PENDING REQUESTS OR MOTIONS FOR INTERVENTION IN
REPRESENTATION PROCEEDINGS CURRENTLY BEFORE THE DEPARTMENT OF LABOR BE
DISMISSED.
3. FUTURE SHOWINGS OF INTEREST SUBMITTED BY PATCO-MEBA BE IN THE
FORM OF AUTHORIZATION CARDS DATED AT LEAST TEN DAYS AFTER THE POSTING OR
THE MAILING OF NOTICES TO EMPLOYEES OR MEMBERS, WHICHEVER IS LATER.
4. PATCO-MEBA, ITS OFFICERS, AGENTS, AND REPRESENTATIVES, SHALL:
(A) CEASE AND DESIST FROM:
(1) CALLING OR ENGAGING IN ANY STRIKE, WORK STOPPAGE OR SLOWDOWN
AGAINST THE FEDERAL AVIATION ADMINISTRATION OR ANY OTHER AGENCY OF THE
GOVERNMENT OF THE UNITED STATES, OR FROM ASSISTING OR PARTICIPATING IN
ANY SUCH STRIKE, WORK STOPPAGE OR SLOWDOWN.
(2) CONDONING ANY SUCH ACTIVITY BY FAILURE TO TAKE EFFECTIVE
AFFIRMATIVE ACTION TO PREVENT OR STOP IT.
5. FAA AND PATCO-MEBA ARE PROHIBITED FROM ENTERING INTO OR GIVING
EFFECT TO ANY DUES DEDUCTION AGREEMENTS DURING THE PERIOD THAT
PATCO-MEBA IS BARRED FROM UTILIZING THE PROCEDURES ESTABLISHED UNDER
EXECUTIVE ORDER 11491.
6. PATCO-MEBA TAKE THE FOLLOWING AFFIRMATIVE ACTION TO EFFECTUATE
THE PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER:
(A) POST AT ITS NATIONAL AND LOCAL BUSINESS OFFICES AND IN NORMAL
MEETING PLACES COPIES OF THE ATTACHED NOTICE SIGNED BY THE NATIONAL
PRESIDENT AND BOARD CHAIRMAN OF PATCO-MEBA WHICH IS MARKED "APPENDIX."
SAID COPIES OF THE NOTICES SHALL BE POSTED FOR A PERIOD OF 60
CONSECUTIVE DAYS IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO MEMBERS ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE
TAKEN BY PATCO-MEBA TO INSURE THAT SAID NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY OTHER MATERIAL.
(B) MAIL A COPY OF SAID NOTICE TO EACH OF ITS MEMBERS AT HIS LAST
KNOWN HOME ADDRESS.
(C) FURNISH SUFFICIENT COPIES OF SAID NOTICE TO THE FEDERAL AVIATION
ADMINISTRATION FOR POSTING AT PLACES WHERE IT CUSTOMARILY POSTS
INFORMATION TO ITS CONTROLLERS. NOTICES SHOULD BE FURNISHED TO FAA
WITHIN 14 DAYS OF THE DATE OF THIS DECISION AND ORDER.
(D) AT SUCH TIME AS PATCO-MEBA BELIEVES THAT IT CAN MEET THE
REQUIREMENTS AS A LABOR ORGANIZATION UNDER SECTION 2(E) OF THE EXECUTIVE
ORDER, BUT IN NO EVENT SOONER THAN THE EXPIRATION OF THE 60-DAY POSTING
PERIOD, IT MAY FURNISH TO THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS A SPECIFIC ACCOUNT, IN WRITING, OF THE STEPS
IT HAS TAKEN TO COMPLY WITH THIS DECISION AND ORDER, AS WELL AS STEPS IT
HAS TAKEN TO INSURE FUTURE COMPLIANCE WITH EXECUTIVE ORDER 11491 AND THE
REGULATIONS PERTAINING THERETO. PATCO-MEBA SHALL SERVE COPIES OF SUCH
ACCOUNT SIMULTANEOUSLY UPON ALL OTHER PARTIES TO THIS PROCEEDING AND
FURNISH THE ASSISTANT SECRETARY WITH A STATEMENT THAT SUCH SERVICE HAS
BEEN MADE. OTHER PARTIES WILL HAVE FIVE DAYS FROM SERVICE OF
PATCO-MEBA'S ACCOUNT WITHIN WHICH TO FILE COMMENTS WITH THE ASSISTANT
SECRETARY.
DATED AT WASHINGTON, D.C.:
JANUARY 29,1971
/1/ NOW AFFILIATED WITH NATIONAL MARINE ENGINEERS' BENEFICIAL
ASSOCIATION, AFL-CIO, (MEBA)
/2/ REFERENCES TO THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS
WILL BE REFERRED TO IN THIS DECISION AS HERR FOLLOWED BY A PAGE NUMBER.
/3/ PATCO FILED NO EXCEPTIONS TO THE HERR
/4/ THE PETITION WAS AMENDED ON FEBRUARY 27, 1970 TO EXCLUDE
"MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK,
GUARDS AND SUPERVISORS."
/5/ RECOGNITIONS GRANTED TO PATCO UNDER EXECUTIVE ORDER 10988 ARE NOT
AFFECTED BY THIS ORDER. HOWEVER, PATCO MAY NOT FILE UNFAIR LABOR
PRACTICE COMPLAINTS WITH THE ASSISTANT SECRETARY CONCERNING THESE UNITS
UNTIL SUCH TIME AS PATCO REGAINS ITS STATUS AS A LABOR ORGANIZATION
UNDER THE EXECUTIVE ORDER.
WE WILL NOT CALL OR ENGAGE IN A STRIKE, WORK STOPPAGE OR SLOWDOWN
AGAINST THE FEDERAL AVIATION ADMINISTRATION OR ANY OTHER AGENCY OF THE
UNITED STATES GOVERNMENT.
WE WILL NOT ASSIST OR PARTICIPATE IN SUCH A STRIKE.
WE WILL NOT CONDONE ANY OF THE ABOVE-MENTIONED ACTIVITIES AND WE WILL
TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP THEM IN THE EVENT THEY
REOCCUR.
WE WILL NOT ENTER INTO OR GIVE EFFECT TO ANY DUES-DEDUCTION
AGREEMENTS DURING THE PERIOD OF TIME WE ARE BARRED FROM THE USE OF
EXECUTIVE ORDER 11491.
DATED . . . BY . . .
DATED . . . BY . . .
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE NEAREST AREA
OR REGIONAL OFFICE OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION,
U.S.DEPARTMENT OF LABOR OR WITH THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, WASHINGTON, D.C. 20210.
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC.
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC.
AND
FEDERAL AVIATION ADMINISTRATION
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC:
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES:
AIR TRAFFIC CONTROL ASSOCIATION, INC.:
NATIONAL FEDERATION OF FEDERAL EMPLOYEES:
AND INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS
CHARLES J. PETERS, ESQ., GEORGE H. FOSTER, ESQ., AND JONATHAN B.
HILL, ESQ., OF FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C., FOR
THE ACTIVITY, FAA.
WILLIAM B. PEER, ESQ., OF BARR & PEER, ESQS., WASHINGTON, D.C., FOR
PETITIONER-RESPONDENT PATCO.
GORDON P. RAMSEY, ESQ., AND JAMES F. HOSTETLER, ESQ., OF GADSBY &
HANNAH, ESQS., WASHINGTON, D.C., FOR COMPLAINANT-INTERVENOR NAGE
JAMES D. HILL, ESQ., WASHINGTON, D.C., FOR INTERVENOR ATCA.
JAMES I. NEUSTADT, ESQ., AND RAYMOND J. MALLOY, ESQ., WASHINGTON,
D.C., FOR INTERVENOR AFGE.
IRVING I. GELLER, ESQ., WASHINGTON, D.C., FOR INTERVENOR NFFE.
LOUIS P. POULTON, ESQ., AND EDWARD KATZE, ESQ., WASHINGTON, D.C., FOR
IAM.
BEFORE: LOUIS LIBBIN, HEARING EXAMINER.
THIS CONSOLIDATED REPRESENTATION AND COMPLAINT PROCEEDING ARISES
UNDER EXECUTIVE ORDER 11491 AND WAS HEARD IN WASHINGTON, D.C., ON
VARIOUS DATES BETWEEN MAY 26 AND JUNE 19, 1970. THE REPRESENTATION
PETITION WAS INITIATED BY PETITIONS (CASE NO. 46-1593) FILED PURSUANT TO
SECTION 6 OF THE EXECUTIVE ORDER ON FEBRUARY 18 AND 27, 1970, BY
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC., HEREIN CALLED
PATCO, AS A LABOR ORGANIZATION SEEKING CERTIFICATION AS EXCLUSIVE
BARGAINING REPRESENTATIVE FOR A NATIONWIDE UNIT OF ALL "NON-SUPERVISORY
AIR TRAFFIC CONTROL SPECIALISTS," WITH CERTAIN SPECIFIED EXCLUSIONS.
THE FEDERAL AVIATION ADMINISTRATION, THE ACTIVITY NAMED IN SAID
PETITIONS, HAS CHALLENGED, AMONG OTHER THINGS, THE STATUS OF PATCO AS A
LABOR ORGANIZATION AS DEFINED IN SECTION 2(E) OF THE EXECUTIVE ORDER.
IDENTICAL CHALLENGES, AMONG OTHERS, WERE ALSO MADE BY TWO OF THE
INTERVENORS, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC., HEREIN
CALLED NAGE, AND AIR TRAFFIC CONTROL ASSOCIATION, INC., HEREIN CALLED
ATCA. THEREAFTER, PATCO CHALLENGED THE STATUS OF ATCA AS AN INTERVENOR
ON THE GROUND THAT IT IS NOT A LABOR ORGANIZATION WITHIN THE MEANING OF
SECTION 2(E) OF THE EXECUTIVE ORDER. IN ADDITION, ON MAY 8, 1970,NAGE
FILED AN UNFAIR LABOR PRACTICE COMPLAINT (CASE NO. 46-1698) AGAINST
PATCO, ALLEGING VIOLATIONS OF SECTIONS 19(B)(1) AND (4) OF THE EXECUTIVE
ORDER.
ON MAY 13, 1970, THE REGIONAL ADMINISTRATOR ISSUED TWO SEPARATE
NOTICES OF HEARING TO BE CONDUCTED ON THE SAME DATE. ONE WAS IN THE
REPRESENTATION CASE "CONCERNING THE LABOR ORGANIZATION STATUS" OF PATCO
AND ATCA. THE OTHER WAS IN THE COMPLAINT CASE "CONCERNING THE ALLEGED
VIOLATIONS" OF SECTIONS 19(B)(1) AND (4) OF THE EXECUTIVE ORDER. BY
ORDER, DATED THAT SAME DAY, THE REGIONAL ADMINISTRATOR CONSOLIDATED THE
TWO CASES INTO ONE PROCEEDING.
AT THE HEARING, PATCO, FAA, NAGE AND ATCA WERE REPRESENTED BY
COUNSEL, WHO WERE AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, EXAMINE
AND CROSS-EXAMINE WITNESSES, SUBMIT ORAL ARGUMENTS AND FILE BRIEFS ON
THE ISSUES HEREIN SET FORTH.
AT THE REQUEST OF COUNSEL FOR FAA, I DIRECTED COUNSEL FOR PATCO TO
SUBMIT FOR THE RECORD, AFTER THE CLOSE OF THE HEARING, A STATEMENT
INDICATING WHETHER OR NOT THE TELEPHONE NUMBERS LISTED ON FAA EXHIBIT
NO. 14 ARE NUMBERS OF ANY PATCO EMPLOYEES OR OFFICIALS IN THE WASHINGTON
METROPOLITAN AREA AS OF THE DATE OF THE TELEPHONE CALLS ON FAA EXHIBIT
14. THIS STATEMENT WAS RECEIVED FROM PATCO ON JULY 21, 1970, AND HAS
BEEN MARKED AND PLACED IN THE OFFICIAL EXHIBIT FOLDER AS PATCO EXHIBIT
NO. 28. ON AUGUST 4, 1970, ATCA FILED A MOTION TO CORRECT THE RECORD TO
SHOW THE RECEIPT IN EVIDENCE OF ATCA EXHIBIT NOS. 11, 12 AND 13, AND THE
REJECTION OF ATCA EXHIBIT NOS. 14, 15, 16 AND 17. SAID MOTION IS HEREBY
GRANTED, WITHOUT OBJECTION. IN THE SAME DOCUMENT ATCA SEEKS
RECONSIDERATION OF MY RULING REJECTING ATCA EXHIBIT NOS. 14 TO 19,
INCLUSIVE. UPON RECONSIDERATION, I ADHERE TO MY ORIGINAL RULING AND
DENY ATCA'S REQUEST FOR THE RECEIPT IN EVIDENCE OF THESE EXHIBITS. I
HAVE PREVIOUSLY DENIED, BY ORDER DATED JULY 31, 1970, PATCO'S MOTION TO
ADMIT INTO EVIDENCE PATCO REJECTED EXHIBIT NO. 26.
IN AUGUST 1970, PATCO, FAA, NAGE AND ATCA FILED TIMELY DETAILED AND
COMPREHENSIVE BRIEFS, WHICH I HAVE FULLY CONSIDERED. FOR THE REASONS
HEREINAFTER INDICATED, I FIND THAT (1) PATCO WAS NOT A LABOR
ORGANIZATION WITHIN THE MEANING OF SECTION 2(E)(2) OF THE EXECUTIVE
ORDER BUT NEVERTHELESS WAS AND IS A LABOR ORGANIZATION WITHIN THE
MEANING OF SECTION 19(B) OF SAID ORDER, (2) ATCA IS A LABOR ORGANIZATION
WITHIN THE MEANING OF SECTION 2(E) AND 2(E)(1) OF SAID ORDER, AND (3)
PATCO VIOLATED ONLY SECTION 19(B)(4) OF SAID EXECUTIVE ORDER.
UPON THE ENTIRE RECORD /1/ IN THE CASE AND FROM MY OBSERVATION OF THE
WITNESSES WHO TESTIFIED UNDER OATH, I MAKE THE FOLLOWING FINDINGS:
UNDER EXECUTIVE ORDER 11491, AN AGENCY MAY GRANT EXCLUSIVE RECOGNITION
ONLY TO REPRESENTATIVES WHICH ARE LABOR ORGANIZATIONS. INSOFAR AS HERE
RELEVANT, SECTION 2 OF THE ORDER STATES:
(E) "LABOR ORGANIZATION" MEANS A LAWFUL ORGANIZATION OF ANY KIND IN
WHICH EMPLOYEES PARTICIPATE AND WHICH EXISTS FOR THE PURPOSE, IN WHOLE
OR IN PART, OF DEALING WITH AGENCIES CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING THE WORKING
CONDITIONS OF THEIR EMPLOYEES, BUT DOES NOT INCLUDE AN ORGANIZATION
WHICH --
(1) CONSISTS OF MANAGEMENT OFFICIALS OR SUPERVISORS, EXCEPT AS
PROVIDED IN SECTION 24 OF THIS ORDER;
(2) ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED
STATES OR ANY AGENCY THEREOF, OR TO ASSIST OR PARTICIPATE IN SUCH A
STRIKE, OR IMPOSES A DUTY OR OBLIGATION 45 TO CONDUCT, ASSIST OR
PARTICIPATE IN SUCH A STRIKE;
FAA, NAGE AND ATCA CONTEND, AND PATCO DENIES, THAT PATCO FALLS WITHIN
THE SECOND EXCLUSION AND THEREFORE IS NOT A LABOR ORGANIZATION. PATCO
CONTENDS, AND ATCA DENIES, THAT ATCA FAILS TO MEET THE GENERAL
REQUIREMENTS OF THE MAIN PROVISIONS OF SECTION 2(E), THAT IT ALSO FALLS
WITHIN THE FIRST EXCLUSION AND THAT FOR EACH OF THESE REASONS ATCA IS
NOT A LABOR ORGANIZATION.
WITH RESPECT TO THE ALLEGED UNFAIR LABOR PRACTICES, NAGE CONTENDS, AS
ITS COMPLAINT ALLEGES, AND PATCO DENIED, THAT PATCO ENGAGED IN CONDUCT
VIOLATIVE OF SECTION 19(B)(1) AND (4) OF THE EXECUTIVE ORDER. THESE
SECTIONS MAKE IT AN UNFAIR LABOR PRACTICE FOR A "LABOR ORGANIZATION" TO
--
(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF HIS RIGHTS ASSURED BY THIS ORDER;
(4) CALL OR ENGAGE IN A STRIKE, WORK STOPPAGE, OR SLOWDOWN; PICKET
AN AGENCY IN A LABOR-MANAGEMENT DISPUTE; OR CONDONE ANY SUCH ACTIVITY
BY FAILING TO TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT;
NAGE FURTHER CONTENDS THAT PATCO IS A LABOR ORGANIZATION FOR PURPOSES
OF SECTION 19(B) EVEN THOUGH IT IS FOUND NOT TO BE A LABOR ORGANIZATION
FOR RECOGNITION PURPOSES UNDER SECTION 2(E)(2).
THUS, THE ISSUES LITIGATED IN THIS PROCEEDING ARE (1) THE LABOR
ORGANIZATION STATUS OF PATCO (A) WITHIN THE MEANING OF SECTION 2(E)(2)
OF THE EXECUTIVE ORDER AND (B) WITHIN THE MEANING OF SECTION 19(B) OF
SAID ORDER; (2) THE LABOR ORGANIZATION STATUS OF ATCA WITHIN THE
MEANING OF SECTION 2(E) AND 2(E)(1) OF THE ORDER; (3) WHETHER PATCO
ENGAGED IN CONDUCT WHICH CONSTITUTED UNFAIR LABOR PRACTICES WITHIN THE
MEANING OF SECTION 19(B)(1) AND (4) OF THE ORDER; AND (4) THE NATURE OF
THE REMEDY IN THE EVENT THAT ISSUES (1) AND/OR (3) ARE DECIDED ADVERSELY
TO PATCO
IN EARLY 1970 THERE EXISTED BETWEEN PATCO AND FAA A FESTERING AND
SERIOUS DISPUTE OF LONG STANDING CONCERNING FAA'S PROPOSED TRANSFER OF
THREE PATCO MEMBER CONTROLLERS FROM THE BATON ROUGE, LOUISIANA, TOWER TO
ANOTHER FACILITY. THE THREE CONTROLLERS WERE FIRST INFORMED BY FAA OF
THE PROPOSED TRANSFER IN SEPTEMBER 1969. THE FAA'S POSITION WAS THAT
THE TRANSFERS WERE NECESSARY TO CORRECT OPERATIONAL SHORTCOMINGS AT THE
BATON ROUGE TOWER. THE THREE CONTROLLERS AND PATCO FELT THAT THE
PROPOSED TRANSFERS WERE DISCRIMINATORILY MOTIVATED AND CONSTITUTED AN
ATTEMPT BY FAA TO "BREAK PATCO AT BATON ROUGE." AFTER CHARGING
DISCRIMINATION, THE THREE CONTROLLERS FILED FORMAL GRIEVANCES. AN FAA
EXAMINER BEGAN HIS INQUIRY INTO THE GRIEVANCES BUT IN OCTOBER 1969 WAS
TEMPORARILY ENJOINED FROM PROCEEDING BY A FEDERAL COURT ORDER BECAUSE OF
THE CONTROLLERS' CLAIM THAT THE AGENCY'S GRIEVANCE PROCEDURE DID NOT
ACCORD THEM DUE PROCESS. ON NOVEMBER 4, 1969, THE FEDERAL COURT DENIED
THE CONTROLLERS' PETITION FOR A PRELIMINARY INJUNCTION. THEREAFTER, ON
DECEMBER 8, 1969, FAA'S EXAMINER SUSTAINED THE TRANSFERS. THIS
DETERMINATION WAS UPHELD BY AN FAA APPEALS OFFICER ON JANUARY 15, 1970.
HOWEVER, THE TRANSFER WAS HELD IN ABEYANCE PENDING A FURTHER APPEAL BY
THE CONTROLLERS TO A U.S. DISTRICT COURT.
THE NATIONAL BOARD OF DIRECTORS OF PATCO MET AT SAN FRANCISCO,
CALIFORNIA, FROM JANUARY 23 TO 25, INCLUSIVE. F. LEE BAILEY, PATCO'S
EXECUTIVE DIRECTOR /3/ AND GENERAL COUNSEL, WAS IN ATTENDANCE, AS WELL
ALL THE NATIONAL DIRECTORS AND MANY FACILITY REPRESENTATIVES. "THE MAIN
TOPIC DISCUSSED WAS THE BATON ROUGE CASE AND WHAT WE WOULD DO IF THE
TRANSFERS WERE MADE." CAPTAIN YOUNG OF TWA-ALP (AIRLINE PILOTS
ASSOCIATION) WAS PRESENT AND STATED THAT "95 PERCENT OF ALL TWA PILOTS
WOULD BACK PATCO IN WHATEVER THEY DECIDED TO DO." RICHARD MAC SPARRAN,
PRESIDENT OF PATCO WASHINGTON CENTER AND PRESENT AS THAT CENTER'S
REPRESENTATIVE, ADMITTED THAT "WHAT THEY WERE MENTIONING AT THIS POINT
IN THE HEARINGS WAS WHETHER OR NOT WE WOULD STRIKE." THE DECISION
REACHED ON JANUARY 25 WAS EMBODIED IN A TELEGRAM TO SECRETARY OF
TRANSPORTATION VOLPE, WITH COPIES TO ALL MEMBERS.
THE TELEGRAM OF THAT DATE INFORMED THE SECRETARY THAT THE BOARD OF
DIRECTORS HAD RESOLVED "THAT AS OF FEBRUARY 15, 1970 ALL OPTIONAL AIR
TRAFFIC SERVICE RENDERED BY OUR MEMBERSHIP ABOVE AND BEYOND THOSE THAT
THEY ARE REQUIRED TO PERFORM BY THEIR CONTRACT AND BY REGULATIONS WILL
BE WITHDRAWN, SPECIALLY INCLUDING THE SERVICES OF THE MANY CONTROLLERS
WHO ARE IN A PRESENT CONDITION OF FATIGUE AND WHO ARE MEDICALLY ENTITLED
TO A PERIOD OF RESPITE FOR THE PRESERVATION OF THEIR OWN HEALTH."
REFERENCE WAS ALSO MADE TO THE PROPOSED TRANSFER OF THE PATCO MEMBERS IN
BATON ROUGE AND THE DISPUTE WITH THE ADMINISTRATOR OVER THIS MATTER. A
REQUEST WAS MADE FOR A MEETING NOT LATER THAN THE FIRST WEEK IN FEBRUARY
"TO RESOLVE THE PROBLEMS AND DIFFERENCES THAT HAVE PRECIPITATED THIS
RESOLUTION," ADDING THAT UNDER CERTAIN CONDITIONS THE BOARD OF DIRECTORS
"WOULD BE AMENABLE TO SOME KIND OF REALISTIC MEDIATION TO BE HANDLED BY
THE VARIOUS ASSOCIATIONS WHO WOULD (BE) MOST DIRECTLY CONCERNED WITH THE
WITHDRAWAL OF THE DESCRIBED SERVICES."
THIS TELEGRAM WAS REFERRED FOR REPLY TO FEDERAL AVIATION
ADMINISTRATOR SCHAFFER. BY REPLY LETTER DATED JANUARY 30, AND ADDRESSED
TO PATCO BOARD CHAIRMAN ROCK, SCHAFFER ADVISED THAT "ANY SUCH CONCERTED
ACTION ON THE PART OF YOUR MEMBERSHIP TO WITHHOLD SERVICES WILL
CONSTITUTE AN ILLEGAL STRIKE"; POINTED OUT THAT "IN THE FINAL ANALYSIS
IT IS THE AIR TRAFFIC CONTROLLERS WHO HAVE MOST TO LOSE BY JEOPARDIZING
THEIR CAREERS"; AND COUNSELLED THAT "FOR THESE REASONS ADVICE BY THE
BOARD OF DIRECTORS OF PATCO TO THE MEMBERSHIP TO WITHHOLD SERVICES IS A
DISSERVICE TO THOSE MEMBERS." THE LETTER ALSO STATED THAT "THE PUBLIC
STATEMENTS OF PATCO OFFICIALS AND THE RESOLUTION SET FORTH IN YOUR
TELEGRAM MAKE IT DIFFICULT FOR EITHER THE SECRETARY OR ME TO MEET WITH
OFFICIALS OF YOUR NATIONAL ORGANIZATION."
ON FEBRUARY 2 OR 3 PATCO EXECUTIVE DIRECTOR AND GENERAL COUNSEL
BAILEY AND PATCO BOARD MEMBER AND WESTERN COORDINATOR GREEN SPOKE AT A
PATCO CONTROLLERS' MEETING HELD IN LANCASTER, CALIFORNIA. BAILEY AND
GREEN WERE INTRODUCED BY ROBERT BIAVA, PATCO'S WESTERN REGIONAL VICE
PRESIDENT AND CHAPTER PRESIDENT OF THE LOS ANGELES TRAFFIC CONTROL
CENTER. BAILEY STATED, AMONG OTHER THINGS, THAT THE SITUATION THAT
EXISTED AT BATON ROUGE "SHOULD BE (OF) MAJOR CONCERN" AND THAT "SOME
DIRECT AND DELIBERATE ACTION WOULD HAVE TO BE TAKEN." IN RESPONSE TO A
QUESTION FROM A CONTROLLER AS TO WHAT COURSE OF ACTION COULD BE TAKEN,
BAILEY "MADE THE COMMENT REFERRING TO A SICK OUT." GREEN ELABORATED ON
WHAT BAILEY HAD SAID AND STATED THAT "IN ORDER TO ACCOMPLISH THIS
PARTICULAR GOAL THAT THERE WAS GOING TO BE A MASSIVE EFFORT . . .
THROUGHOUT THE RANKS OF ALL THE CONTROLLERS." ROBERT BIAVA STATED THAT
FEBRUARY 15 WAS THE TENTATIVE DATE.
ON FEBRUARY 13, PATCO PRESIDENT HAYES AND EXECUTIVE DIRECTOR AND
GENERAL COUNSEL BAILEY HELD A PRESS CONFERENCE IN THE O'HARE
INTERNATIONAL AIRPORT TERMINAL BUILDING IN CHICAGO, ILLINOIS. BAILEY
REFERRED TO THE FACT THAT ON JANUARY 25, PATCO BOARD OF DIRECTORS HAD
NOTIFIED THE SECRETARY OF TRANSPORTATION THAT ON FEBRUARY 15 "THEY WOULD
WITHDRAW ALL OPTIONAL SERVICES, WHICH WOULD INCLUDE THE SERVICE OF ANY
CONTROLLER WHO IS WORKING IN A CONDITION OF FATIGUE." HE STATED THAT IN
VIEW OF THE FAILURE TO MEDIATE THE DISPUTE, HE "WOULD ANTICIPATE AS ONE
WHO HAS TALKED WITH CONTROLLERS FROM HONOLULU TO NEW YORK THAT THERE
WILL BE AN IMPACT ON THE SYSTEM, AND THAT IT WILL OCCUR ON SUNDAY, THE
15TH DAY OF FEBRUARY." IN RESPONSE TO A REPORTER'S QUESTION AS TO
WHETHER THIS "IS A LAST RESORT FOR YOU," BAILEY REPLIED,
I THINK IT IS, AND I THINK IF THIS SHOULD HAVE DISASTROUS
CONSEQUENCES, SUCH AS THE THREATENED JAILING OF ALL THE DIRECTORS AS THE
FAA HAS PROPOSED, I THINK THE SYSTEM WILL SUFFER A BLOW THAT IT WON'T
RECOVER FROM. THE FAA MIGHT DESTROY THE ORGANIZATION, BUT THEY WILL NOT
HAVE AN AIR TRAFFIC SYSTEM WHEN THEY ARE THROUGH.
WHEN ASKED BY A REPORTER "WHY DID YOU PICK FEBRUARY 15," BAILEY
REPLIED.
THERE WAS A RESOLUTION PASSED IN OCTOBER THAT IF THE FAA USED A
PUNITIVE TRANSFER TO GET RID OF CERTAIN CONTROLLERS IN BATON ROUGE,
LOUISIANA, THERE WOULD BE A DEMONSTRATION IN THE SYSTEM. ON JANUARY
15TH THE FAA ISSUED AN ORDER TRANSFERRING THOSE CONTROLLERS.
THEY REFUSED TO MOVE. THEY HAVE SINCE BEEN FIRED. BUT ON THAT DATE,
THE PRESIDENT, MR. HAYES, AND CHAIRMAN OF THE BOARD, SAID THAT THERE
WILL BE A THIRTY-DAY COOLING OFF PERIOD TO SEE WHAT WE CAN DO. AFTER
THAT CAME THE RESOLUTION. AND SINCE THAT TIME THERE HAS BEEN NOTHING
EXCEPT A THREAT FROM THE ADMINISTRATOR TO JAIL THE AIR TRAFFIC
CONTROLLERS.
IN ANSWERING A REPORTER'S QUESTION AS TO THE POSSIBLE EFFECT OF A
"WALKOUT" ON THE SYSTEM, BAILEY POINTED OUT THAT THE "CENTERS HAVE A
PROFOUND EFFECT ON THE WHOLE COUNTRY" AND "ANY ONE CENTER COULD TIE UP
THE UNITED STATES." IN ANSWER TO A REPORTER'S QUESTION AS TO WHAT IT
WOULD TAKE TO KEEP THE CONTROLLERS WORKING AFTER FEBRUARY 15, BAILEY
STATED,
I DON'T THINK THERE'S ANY POSSIBILITY OF NEGOTIATING THE MATTER,
UNLESS THERE IS RECOGNITION OF THE ORGANIZATION WITHOUT WHICH THE
DIALOGUE IS IMPOSSIBLE. AND AN AGREEMENT THAT THE BATON ROUGE SITUATION
WILL BE FULLY AND FAIRLY LITIGATED, NOT THE WAY THE FAA HANDLED IT, AND
THAT WAS A SECRET HEARING.
BAILEY AGAIN GAVE HIS VERSION OF THE BATON ROUGE SITUATION, STATING
THAT "THE DISPUTE WAS THAT THEY WERE MOVED OUT IN ORDER TO BREAK UP THE
ORGANIZATION AT THE TOWER, AND FOR NO OTHER REASON. THAT IS NOT A
LEGITIMATE REASON FOR MOVING."
THE FEBRUARY 15 WITHHOLDING OF SERVICES BY CONTROLLERS DID NOT OCCUR.
AT A MEETING OF CONTROLLERS IN LANCASTER, CALIFORNIA, HELD ABOUT
FEBRUARY 23 OR 24 AND PRESIDED OVER BY PATCO BOARD MEMBER BIAVA, PATCO
BOARD MEMBER AND WESTERN COORDINATOR GREEN EXPLAINED TO THE MEMBERSHIP
THAT "THE REASON THAT THE PROPOSED SICK OUT WAS NOT CALLED WAS THAT
PATCO HAD ENTERED INTO TALKS . . . WITH VARIOUS HEADS OF FAA AND THE
DEPARTMENT OF LABOR" AND THAT PATCO DID NOT WANT TO MISUSE ITS POWER.
ON FEBRUARY 26, FAA HELD A MEETING WITH PATCO AND OTHER EMPLOYEE
ORGANIZATIONS REPRESENTING CONTROLLERS FOR THE PURPOSE OF CONSIDERING
THEIR REACTIONS TO THE CORSON COMMITTEE REPORT /4/ AND ITS
RECOMMENDATIONS PERTAINING TO CONTROLLERS. AT THIS MEETING, PATCO BOARD
CHAIRMAN ROCK DEMANDED IMMEDIATE ACTION ON NINE ADDITIONAL
RECOMMENDATIONS WHICH HE READ FROM A PREPARED TEXT. HE THEN THREATENED
THAT IF PATCO'S ADDITIONAL RECOMMENDATIONS WERE NOT PROMPTLY ADOPTED,
THE FAA WOULD AGAIN FACE A CONFRONTATION SIMILAR TO THE RECENT ONE, AND
CONCLUDED WITH THE WARNING THAT "YOU ARE FACING A REVOLUTION." THESE
NINE POINTS WERE LISTED IN A PATCO NEWSLETTER OF MARCH 2. FAA DID NOT
ADOPT PATCO'S NINE POINTS.
AT MEETINGS WITH PATCO AND FAA REPRESENTATIVES, HELD ON FEBRUARY 15
TO 17, "FACT FINDING" PROCEEDINGS WERE AGREED UPON TO REVIEW THE
EVIDENCE AND MERITS OF THE BATON ROUGE CONTROLLERS' CASE. PATCO
CONTENDED THAT AFTER THE FIRST MEETING OF THE "FACT FINDING" PANEL ON
FEBRUARY 27, SECRETARY VOLPE BEGAN TO RESTRICT THE SCOPE OF THE PANEL.
PATCO THEREUPON BECAME APPREHENSIVE OF FAA/S "GOOD FAITH." PATCO FURTHER
CONTENDED THAT DURING THE SECOND MEETING OF THE PANEL WITH MEDIATOR
SCHULTZ ON MARCH 11, "IT BECAME OBVIOUS THAT THE DOT/FAA HAD NO
INTENTION OF ALLOWING MEDIATION AND FURTHER RESTRICTED THE SCOPE OF THE
RESPONSIBILITIES OF THE PANEL." ON MARCH 13, FAA ANNOUNCED THE
SECRETARY'S DECISION TO AFFIRM THE TRANSFER ORDER. PATCO CONCLUDED THAT
THE AGREED-UPON "FACT FINDING" PROCEEDINGS "WERE INITIATED AND
CULMINATED IN BAD FAITH ON THE PART OF THE DOT AND FAA." ALL OF THE
FOREGOING IS RECITED IN PATCO'S NEWSLETTER OF MARCH 19, WHICH ALSO
INCLUDES PATCO EXECUTIVE DIRECTOR BAILEY'S AFFIDAVIT REVIEWING THE
PROCEEDINGS ON THE BATON ROUGE SITUATION.
HENRY VAN SANT WAS A MEMBER OF PATCO'S BOARD OF DIRECTORS AS WELL AS
CHAIRMAN OF THE HONOLULU PATCO UNIT AND A CONTROLLER AT THE HONOLULU
APPROACH CONTROL FACILITY. HE MADE NOTES ON PATCO STATIONERY OF
CONFERENCE TELEPHONE CALLS CONCERNING THE "SICK OUT." THE FIRST PAGE OF
NOTES STATES THAT THE CONFERENCE TELEPHONE CALL WAS AT "12 NOON
WASHINGTON," AND LISTS THE FOLLOWING EIGHT NUMBERED QUOTED ITEMS
(UNDERLINING IN THE ORIGINAL):
1) REASON FAA BACKDOWN ON FACT FINDING COMMITTEE RECOMMENDATION.
WEDNESDAY MARCH 25TH DAY SHIFT NATION WIDE. REASON WEDNESDAY AM
BECAUSE CONGRESS ADJOURNS EASTER WED PM NO PLANES TO GO HOME.
2) CALL IN FATIGUE - ONLY YOU CAN DETERMINE THIS.
IF YOU CALL IN ANY OTHER WAY MAKE SURE YOU PROTECT YOURSELF.
3) CALL IN ONE HOUR BEFORE TIME OF WATCH AND NO SOONER.
4) BE PREPARED TO STAY OUT AT LEAST 10 DAYS OR POSSIBLY LONGER.
5) NINE POINTS IN LAST NEWSLETTER MAJOR POINTS.
6) RETURN ONLY AFTER THEY ARE IN WRITING AND RATIFIED BY MEMBERSHIP
WITH CONFERENCE CALL TO BOARD OF DIRECTORS. PUBLIC 24 HR NOTICE BUT NOT
DATE ALPA 48 HR NOTICE DEFENSE DEPT 24 HR NOTICE
6) MEETING MARCH 24TH 8:00 PM
8) GOOD LUCK TO YOU & YOUR POSTMAN.
THE CONTENTS OF THESE NOTES, IN THE LIGHT OF THE RECORD EVIDENCE THAT
THE "SICK OUT" BEGAN ON THE DAY SHIFT OF MARCH 25, ESTABLISHES THAT THEY
WERE MADE ON OR BEFORE MARCH 22. ON THE BACK OF THESE NOTES APPEAR THE
NAME OF 14 PATCO OFFICIALS, WITH A CERTAIN DAY OF THE WEEK CIRCLED AFTER
EACH NAME. IN ADDITION, THERE ARE LISTED THREE FIRST NAMES WHICH ARE
THE FIRST NAMES OF THREE ADDITIONAL PATCO OFFICIALS.
THE SECOND PAGE OF NOTES STATES THAT "NATIONAL OFFICERS ARE EXPECTED
TO BE ARRESTED. CONFERENCE CALL
IT THEN ADDS THAT
"MIKE OR F. LEE BAILEY . . . TO THE RESTRAINING WILL GO ON TV AND
ADVISE TO GO . . . ORDER BACK BUT TO COMPLETELY IGNORED."
THE REMAINING PAGES OF NOTES LIST THE NUMBER OF CONTROLLERS AT
VARIOUS FACILITIES. AT THE BOTTOM OF ONE PAGE, THERE APPEARS THE
NOTATION:
"BAILEY
PISTOL AT BACK OF HIS HEAD"
BY LETTER DATED MARCH 23, MICHAEL J. ROCK, PATCO CHAIRMAN OF ITS
BOARD OF DIRECTORS, INFORMED DEFENSE SECRETARY MELVIN LAIRD THAT THE
"RESENTMENT AND FRUSTRATIONS" OF THE "NATION'S AIR TRAFFIC CONTROLLERS"
ATTITUDE HAS BEEN CRYSTALLIZED SINCE THE FEDERAL AVIATION
ADMINISTRATOR, JOHN SHAFFER, STATED ON FRIDAY, MARCH 13, 1970, THAT THE
THREE CONTROLLERS AT BATON ROUGE ARE TO BE TRANSFERRED EFFECTIVE MARCH
30. THIS ANNOUNCEMENT WAS IN DIRECT VIOLATION OF AN EXPRESS AGREEMENT
BETWEEN THE PROFESSIONAL AIR TRAFFIC CONTROLLERS' ORGANIZATION, THE
FEDERAL AVIATION ADMINISTRATION, THE DEPARTMENT OF TRANSPORTATION AND
THE FEDERAL MEDIATION AND CONCILIATION SERVICE. A PREVIOUS AGREEMENT TO
THAT EFFECT WAS STRUCK DURING NEGOTIATIONS THAT BARELY AVERTED A
NATIONWIDE 40 DISRUPTION OF AIR TRAFFIC ON FEBRUARY 15TH. THIS BREACH
HAS DRAMATICALLY BROUGHT HOME TO THE AIR TRAFFIC CONTROLLER THAT THE
FINAL DOOR TO MEANINGFUL DIALOGUE BETWEEN THE CONTROLLER AND THE FEDERAL
AVIATION ADMINISTRATION LEADERSHIP HAS BEEN CLOSED IN HIS FACE.
ROCK THEN ANNOUNCED THAT--
THIS ORGANIZATION'S MEMBERSHIP HAS ADVISED ITS LEADERSHIP THAT
EFFECTIVE 8:00 A.M. EASTERN STANDARD TIME ON MARCH 25, 1970, ALL
OPTIONAL AIR TRAFFIC SERVICES RENDERED ABOVE AND BEYOND THOSE THEY ARE
REQUIRED TO PERFORM BY THEIR CONTRACT AND REGULATIONS WILL BE WITHDRAWN;
SPECIFICALLY, THE SERVICE OF MANY CONTROLLERS WHO ARE IN A PRESENT
CONDITION OF FATIGUE AND WHO ARE MEDICALLY ENTITLED TO A PERIOD OF
RESPITE FOR THE PRESERVATION OF THEIR OWN HEALTH.
A COPY OF THIS LETTER WAS SENT BY ROCK ON MARCH 24 TO SECRETARY OF
TRANSPORTATION VOLPE.
ON THE SAME DATE, MARCH 24, PATCO PUBLISHED A PRESS RELEASE WHICH
STATED:
AIRLINES, AIR TRAVELERS, AND THE FLYING PUBLIC ARE HEREBY NOTIFIED
THAT SWIFT, SEVERE DISSIPATION OF AIR TRAFFIC SERVICES WILL COMMENCE
THROUGHOUT THE COUNTRY APPROXIMATELY 0800 EST ON WEDNESDAY, MARCH 25,
1970.
THE RELEASE REITERATED PATCO'S VERSION OF THE BATON ROUGE TRANSFERS,
AND THE FEBRUARY 15TH AVERTED CRISIS WHICH IT HAD PRECIPITATED. IN
REFERRING TO THE PROPOSED WITHDRAWAL OF SERVICES, THE RELEASE STATED:
THIS WILL, OF COURSE, CAUSE AIR TRAFFIC ACROSS THE NATION TO BE
BROUGHT TO A STANDSTILL. PROVISIONS HAVE BEEN MADE, HOWEVER, FOR THE
REQUIREMENTS OF NATIONAL DEFENSE AND FOR THE SERVICING OF THE ESSENTIAL
MILITARY AND CIVILIAN FACILITIES IN THE FAR EAST AND OTHER ISOLATED
AREAS.
MR. ROCK HAS FURTHER STATED, "MANY WILL CALL IT A STRIKE, A WALKOUT,
A SICKOUT AND WILL CONDEMN IT; HOWEVER, I SEE IT AS A DEMAND FOR
REFORM, 'OPERATION REFORM.'"
ATTACHED TO THE PRESS RELEASE WAS ROCK'S MARCH 23 LETTER TO THE
SECRETARY OF DEFENSE.
ON MARCH 24, FAA ADMINISTRATOR SHAFFER SENT TO PATCO BOARD CHAIRMAN
AND PRESIDENT A TELEGRAM IN WHICH HE STATED, AMONG OTHER THINGS, THE
FOLLOWING:
YOUR THREAT AGAINST THE OPERATION OF THE AIR TRAFFIC SYSTEM IS OF
DEEP CONCERN TO THE FEDERAL AVIATION ADMINISTRATION. STRIKES AGAINST THE
FEDERAL GOVERNMENT ARE IN VIOLATION OF FEDERAL LAW. EMPLOYEES WHO
ENGAGE IN SUCH ACTIONS ARE SUBJECT TO SERIOUS PENALTIES, INCLUDING
SEPARATION FROM THE SERVICE AND THE APPLICATION OF CRIMINAL SANCTIONS.
I URGE YOU, THEREFORE, TO CAREFULLY CONSIDER THE PROVISIONS OF EXECUTIVE
ORDER 11491 AND THE LAW AS CONTAINED IN PUBLIC LAW 89-554, AND TO TAKE
PROMPT, AFFIRMATIVE AND PUBLIC ACTION TO ADVISE ALL PATCO OFFICERS AND
MEMBERS ACCORDINGLY. A COPY OF THIS TELEGRAM IS BEING SENT TO ALL
FACILITIES FOR THE INFORMATION AND GUIDANCE OF CONTROLLERS.
DURING THIS PERIOD PATCO FIELD REPRESENTATIVES WERE BEING NOTIFIED TO
INFORM THE MEMBERSHIP THAT THE WITHHOLDING OF SERVICES WOULD BEGIN ON
MARCH 25. FACILITY REPRESENTATIVES WERE BEING INFORMED BY TELEPHONE TO
HOLD MEETINGS OF THE FACILITY MEMBERS IN THE EARLY MORNING HOURS OF
MARCH 25 TO DETERMINE THE NUMBER OF CONTROLLERS WHO WOULD PARTICIPATE,
TO REPORT THEIR INFORMATION BACK TO PATCO, AND ALSO TO PASS THE WORD ON
TO OTHER FACILITY REPRESENTATIVES. THE PATCO HONOLULU COMMAND POST
INITIATED A SERIES OF PHONE CALLS TO THE REPRESENTATIVES IN HAWAII TO
CALL HENRY VAN SANT AT 262-6681 IN HONOLULU, COLLECT, TO LEARN THE MARCH
25 DATE. THIS IS LISTED AS THE TELEPHONE NUMBER OF HENRY VAN SANT, A
MEMBER OF PATCO'S BOARD OF DIRECTORS, IN SETTING UP A CONFERENCE
TELEPHONE CALL FOR BOARD CHAIRMAN ROCK ON MARCH 26. WHEN HILO TOWER
FACILITY REPRESENTATIVE GLENDON RICHARDS MADE THIS CALL ON MARCH 22,
COLLECT TO VAN SANT, AS HE HAD BEEN INSTRUCTED, THE CALL WAS ACCEPTED
AND THE PERSON WHO ANSWERED STATED,
GLENDON, MARCH 25 IS THE DATE. IT WILL BEGIN ON THE 8 O'CLOCK SHIFT.
PROTECT YOURSELF, AND WE ARE STRESSING THE NINE POINTS IN THE PATCO
BULLETIN. BE PREPARED FOR 10 DAYS.
AT A PATCO MEETING HELD ON MARCH 23 OR 24 AT THE HOME OF ONE OF THE
CONTROLLERS, RICHARDS REPORTED THE INFORMATION HE HAD RECEIVED FROM
HONOLULU IN HIS COLLECT TELEPHONE CALL AND THERE WAS A DISCUSSION ABOUT
IT BY THE MEMBERS.
A MEETING OF THE MEMBERS OF THE LOS ANGELES TOWER FACILITY WAS HELD
ON THE AFTERNOON OF MARCH 24 AT THE HOME OF CONTROLLER COOK, AND WAS
ATTENDED
BY PATCO BOARD MEMBER AND WESTERN REGIONAL COORDINATOR ROBERT GREEN.
WILLIAM RANDALL, ASSISTANT FACILITY REPRESENTATIVE WHO CHAIRED THE
MEETING, STATED THAT HE HAD BEEN TO WASHINGTON AND HAD SPENT A DAY IN
PATCO'S WASHINGTON OFFICE WHERE HE RECEIVED DETAILED INSTRUCTIONS ON THE
"SICK-OUT" WHICH HE WANTED TO PASS ON. HE THEN STATED THAT "WE WERE
DEFINITELY GOING TO GO OUT," THAT THE DATE WAS WEDNESDAY, MARCH 25, ON
THE 8 O'CLOCK DAY SHIFT, AND THAT THEY SHOULD "CALL IN AND REQUEST SICK
LEAVE TWO HOURS PRIOR TO THE START OF THAT SHIFT, AND EACH SUBSEQUENT
SHIFT WE WERE SCHEDULED FOR, UNTIL THE SICKOUT WAS TERMINATED." RANDALL
INFORMED THE MEMBERS "WHICH FACILITIES ACROSS THE NATION THAT HE COULD
EXPECT THE MOST SUPPORT FROM, WHICH WOULD BE THE STRONGEST, (AND) WHICH
ONES WE WERE CONCERNED ABOUT." HE ASKED FOR THE SUPPORT OF AS MANY
CONTROLLERS AS POSSIBLE. THE SUGGESTION WAS MADE THAT "IT WOULD BE A
GOOD IDEA TO GET A DOCTOR'S CERTIFICATE IF THEY COULD."
A MEETING OF THE FACILITY AT THE FORT WORTH, TEXAS, CENTER WAS HELD
ABOUT 4:15 A.M. (CST) ON MARCH 25, AT THE ASTORIA COFFEE SHOP. DURING
THE MEETING, FORT WORTH AREA BRANCH SECRETARY-TREASURER CRAIG MITCHELL
WAS CALLED FROM THE ROOM BY AN EMPLOYEE OF THE COFFEE SHOP. UPON HIS
RETURN ABOUT 4:45 A.M. (CST), HE ANNOUNCED THAT "WE ARE IN" OR "IT IS
ON." THIS MEANT, ACCORDING TO ONE CONTROLLER, THAT SOME AIR TRAFFIC
CONTROLLERS "WOULD PROBABLY NOT GO TO WORK."
TWO CONFERENCE TELEPHONE CALLS WERE MADE ON MARCH 25 BY PATCO
BUSINESS MANAGER RUSSELL V. SOMMER FROM A PATCO WASHINGTON TELEPHONE TO
KEY PATCO OFFICIALS THROUGHOUT THE UNITED STATES. THE FIRST CONFERENCE
CALL WAS AT 5:45 A.M. (EST). IT WAS DESIGNATED AS AN "EMERGENCY OR
SOMETHING LIKE THAT" AND WAS GIVEN A PRIORITY BY THE TELEPHONE COMPANY.
THE SECOND CONFERENCE CALL WAS AT /5/ 9 A.M.
BEGINNING WITH THE DAY SHIFT ON MARCH 25, ABNORMAL ABSENTEEISM BEGAN
AT MANY OF THE FAA AIR TRAFFIC CONTROL FACILITIES THROUGHOUT THE UNITED
STATES. ALTHOUGH PREVIOUSLY ANNOUNCED AS A "WITHDRAWAL OF OPTIONAL
SERVICES," IT WAS IN FACT A WITHDRAWAL OF GENERAL SERVICES, AS PATCO
LATER PUBLICLY ADMITTED. CONTROLLERS THROUGHOUT THE COUNTRY BEGAN
CALLING IN SICK. FOR THE TWO WORK SHIFTS FOR THAT DAY, COMMENCING WITH
THE DAY SHIFT, THE ABNORMAL ABSENTEEISM OF AIR TRAFFIC CONTROLLERS
SCHEDULED TO WORK THROUGHOUT THE ENTIRE AIR TRAFFIC SYSTEM /6/ WAS 19.8
PERCENT.
THE UNITED STATES IMMEDIATELY BEGAN FILING COMPLAINTS FOR INJUNCTIVE
RELIEF AGAINST PATCO, AND ON THAT DAY OBTAINED FROM THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA A TEMPORARY RESTRAINING ORDER WHICH
ENJOINED PATCO AND ITS OFFICIALS FROM "CONTINUING, ENCOURAGING,
ORDERING, AIDING, ENGAGING OR TAKING ANY PART IN ANY WORK STOPPAGE OR
SLOWDOWN" RELATING TO ANY AIR TRAFFIC.
A TAPE RECORDING OF A STATEMENT MADE BY PATCO EXECUTIVE DIRECTOR
BAILEY ON MARCH 26 /7/ WAS PROVIDED ON THE "PATCO CENTRAL" TELEPHONE
NUMBER WHICH IS THE NUMBER OF PATCO CENTRAL REGIONAL VICE PRESIDENT AND
COORDINATOR NOEL KEANE AT OVERLAND PARK, KANSAS. THIS IS THE SAME
TELEPHONE NUMBER WHICH WAS CALLED FOR KEANE IN SETTING UP PATCO BUSINESS
MANAGER SOMMER'S CONFERENCE CALL OF 5:45 A.M. ON MARCH 25. KEANE IS
ALSO ONE OF THE PATCO OFFICIALS WHOSE NAME APPEARS ON THE LIST OF PATCO
OFFICIALS ON THE BACK OF THE FIRST PAGE OF THE VAN SANT NOTES. THE
MESSAGE AVAILABLE ON THIS PATCO CENTRAL PHONE HAD BAILEY MAKING THE
FOLLOWING STATEMENTS TO THE CONTROLLERS:
NOW, GENTLEMEN, I'VE BEEN WAITING TO SEE WHAT WOULD HAPPEN IN THE
FAA'S ATTEMPT TO REMEDY THE WALKOUT, AND THE FOLLOWING TACTICS HAVE BEEN
USED. I WANT YOU TO LISTEN TO ME VERY CAREFULLY BECAUSE I'M ABOUT TO GO
BEFORE THE NATIONAL TV CAMERAS TO GIVE THE BEST AND MOST HONEST MESSAGE
I CAN TO YOUR MEMBERSHIP. I WILL GIVE YOU THE BEST LEGAL ADVICE THAT I
CAN AND PUT MY NECK OUT AS FAR AS I THINK THAT I SHOULD AND I WANT YOU
TO ABIDE BY IT. I'D LIKE YOU TO PASS IT ON. SEVERAL THINGS HAVE
HAPPENED. FIRST OF ALL, BILL FLENER WAIVED ALL CURRENCY REQUIREMENTS.
SECOND, JACK SHAFFER SAYS THAT HE WILL WORK CONTROLLERS 12 HOURS A DAY,
6 DAYS A WEEK IF HE GETS THE MONEY TO CEASE THE WALKOUT. BASED ON THAT
- BASED ON WHAT I'M TOLD BY YOUR OWN PEOPLE WHO HAD CONTROLLED
AIRPLANES, THERE IS NO QUESTION BUT WHAT THE ILLEGALITY OF THOSE ORDERS
REQUIRES ALL CONTROLLERS WHO WISH TO OBEY THE LAW TO SIMPLY WALK OUT
FLAT, ON THEIR FACILITIES. WE DO NOT KNOW WHERE THESE PRACTICES ARE IN
USE AND WE HAVE NO MEANS TO KNOW. THEY MAY BE IN USE ANYWHERE. SO I'M
GOING TO ASK YOUR CHAIRMAN AND YOUR PRESIDENT AS EXPERTS IN AIR TRAFFIC
CONTROL SIMPLY DECLARE THESE PRACTICES INHERENTLY DANGEROUS. I'M GOING
TO ADD TO THAT LEGAL OPINION THAT THESE MEN SHOULD IMMEDIATELY LEAVE
THEIR FACILITIES AND NOT WORK THEM AGAIN UNTIL THOSE ORDERS ARE
COUNTERMANDED. AND I SAY TO YOU THAT NEW YORK CENTER, WHICH IS CLOSED
DOWN TO A MAN, HAS BEEN NOTIFIED, THROUGH CHIEF BOYLE, COMING FROM JACK
SHAFFER.
AT 8:30 P.M. ON MARCH 26 AT THE SONESTA HOTEL IN WASHINGTON, D.C.,
PATCO EXECUTIVE DIRECTOR BAILEY, BOARD CHAIRMAN ROCK AND PRESIDENT HAYES
HELD A NATIONALLY TELEVISED PRESS CONFERENCE. FLANKED BY HAYES AND
ROCK, BAILEY ADDRESSED THE AUDIENCE OF REPORTERS AS FOLLOWS:
ALL RIGHT, GENTLEMEN. THIS CONFERENCE IS CALLED BECAUSE OF VERY
RECENT DEVELOPMENTS. FIRST OF ALL THE EVENING ABSENTEEISM IS DEFINITELY
ON THE UPSWING INDEPENDENT OF THIS CONFERENCE OR ANY RESULT FROM IT. I
HAVE BEEN MOST QUIESCENT AS TO WHAT THE CONTROLLERS SHOULD DO, BUT THE
ISSUE IS NO LONGER FATIGUE. THE ISSUE IS SAFETY. ON THIS DAY, THE FAA
ANNOUNCED THAT IT WOULD HOLD THE SYSTEM TOGETHER BY WORKING CONTROLLERS
TWELVE HOURS A DAY, SIX DAYS A WEEK, AND THEY HAVE FORMALLY WAIVED THE
REQUIREMENT THAT A MAN BE CURRENT AND PROFICIENT IN ORDER TO WORK. BASED
ON THAT, NO AIR TRAFFIC CONTROLLER SHOULD ACCEPT THE JEOPARDY OF WORKING
ALONGSIDE SUCH A PERSON, AND I MUST RECOMMEND THAT AS A LAWYER, AND AS A
PILOT, AND AS ONE WHO HAS CONFERRED AT GREAT LENGTH WITH ALL OF THE
DIRECTORS AND THE GENTLEMEN ON MY LEFT AND RIGHT, THAT EVERYONE WALK OUT
OF EVERY FAA FACILITY UNTIL THOSE ORDERS ARE COUNTERMANDED.
WHEN ASKED IF HE WAS CALLING A STRIKE, BAILEY REPLIED, "NO, SIR. I
AM CALLING A WALKOUT . . . " BAILEY ALSO STATED THAT:
I HAVE JUST TALKED TO THE DIRECTORS IN EVERY COMMUNITY AROUND THE
COUNTRY. THE RATE (OF ABSENTEEISM) IS INCREASING . . . THIS IS NO
LONGER A QUESTION OF WHAT THE INDIVIDUAL WILL DO. IT'S A QUESTION OF
WHAT THEY OUGHT TO DO AND I MUST ADVISE THEM AS I SEE FIT.
ROCK ADDED THAT:
WHAT I HAVE SEEN TODAY, AND THE REPORTS WE HAVE OF UNQUALIFIED PEOPLE
WORKING AIR TRAFFIC CONTROL POSITIONS WITH THOUSANDS AND THOUSANDS OF
PEOPLES' LIVES IN JEOPARDY, I AM TELLING THE AIR TRAFFIC CONTROLLERS TO
WALK OUT OF THOSE FACILITIES BEFORE THEY KILL. WHEN ASKED IF IT WOULD
NOT BE BETTER "TO TELL THE MEN TO GO BACK TO WORK SO THAT YOU COULD HAVE
QUALIFIED MEN THERE" IF "SAFETY IS SUCH A TERRIFIC PROVISION," ROCK
REPLIED, "MY MEN CANNOT GO BACK TO WORK UNDER THOSE CONDITIONS."
THE NEXT DAY, MARCH 27, PATCO ISSUED A PRESS RELEASE WHICH COMMENCED:
THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION TO DAY (FRIDAY)
ANNOUNCED THAT MORE THAN 3,500 OF ITS AFFILIATED AIR TRAFFIC CONTROLLERS
ON THE MORNING, AFTERNOON AND EVENING WATCHES HAD RESPONDED TO THURSDAY
NIGHT'S CALL FOR A GENERAL WITHDRAWAL OF SERVICES. BY SATURDAY, PATCO
PREDICTED, MORE THAN 4,000 CONTROLLERS WILL BE OUT.
THE "THURSDAY NIGHT'S CALL" WAS AN OBVIOUS REFERENCE TO THE
NATIONALLY TELEVISED NEWS CONFERENCE HELD THAT EVENING WHEN BAILEY AND
ROCK CALLED FOR A WALKOUT OF THE CONTROLLERS.
THE PRESS RELEASE FURTHER STATED THAT BOARD CHAIRMAN ROCK DECLARED
THAT "SAFETY-CONSCIOUS CONTROLLERS ACROSS THE NATION ARE RESPONDING WITH
GREAT ENTHUSIASM TO PATCO'S 'OPERATION REFORM,'" AND THAT "ROCK
PREDICTED THAT THE CONTROLLERS' WITHDRAWAL OF SERVICE WOULD CONTINUE TO
GROW IN NUMBER AND GEOGRAPHIC DISTRIBUTION."
A MEETING OF CONTROLLERS FOR THE LOS ANGELES TOWER HELD AT THE HOME
OF A CONTROLLER ON THE AFTERNOON OF MARCH 25 WAS ATTENDED BY PATCO
DIRECTOR AND WESTERN REGIONAL COORDINATOR GREEN. THE PURPOSE OF THE
MEETING WAS TO GET THE SUPPORT OF AS MANY CONTROLLERS AS POSSIBLE. A
CONFERENCE CALL WAS HELD BETWEEN PATCO REPRESENTATIVES OF EACH OF THE
FACILITIES WITHIN THE WESTERN REGION FOR THE PURPOSE OF GETTING
UP-TO-DATE INFORMATION AS TO THE NUMBER OF CONTROLLERS NOT REPORTING FOR
SCHEDULED WORK. GREEN PRESIDED OVER THIS CALL, VERIFIED THE NUMBERS AND
ANSWERED QUESTIONS. AS THE TELEPHONE CALL CAME IN, A TAPE RECORDING WAS
MADE AND PLAYED BACK FOR CONTROLLERS WHO ARRIVED LATE. GREEN SPOKE TO
THE CONTROLLERS AT THIS MEETING. HE "WAS VERY ELOQUENT IN HIS SPEECH,
HIS CHARACTERIZATION, HIS REQUEST FOR US TO PARTICIPATE" IN THIS EFFORT.
HE AGAIN INFORMED THE CONTROLLERS "ABOUT THE A.L.P.A. PARTICIPATING AS
SOON AS THEY WERE AWARE OF THE FACT THAT THERE WERE NOT JOURNEYMEN
CONTROLLERS HANDLING THE CONTROL POSITIONS." HE MADE STATEMENTS SUCH AS
"WE HAVE ALL GOT TO GET TOGETHER AND DO SOMETHING." SUCH MEETINGS
CONTINUED ALSO ON A DAILY BASIS.
ANOTHER MEETING OF CONTROLLERS HELD IN POLINDALE, CALIFORNIA, ON
MARCH 26 WAS PRESIDED OVER BY GREEN AND PATCO WESTERN REGIONAL VICE
PRESIDENT BIAVA. GREEN HAD GIVEN THE CONTROLLERS THE ADDRESS OF THE
HOME OF THE CONTROLLER AT WHICH THIS MEETING WAS HELD. AT THIS MEETING
GREEN STATED THAT THE "SICK OUT WAS SUCCESSFUL AT THIS POINT AND THE
ONLY THING THAT COULD HELP IT WOULD BE MORE PARTICIPATION." GREEN THEN
PLAYED A 3 OR 4 MINUTE TAPE OF A CONVERSATION WITH EXECUTIVE DIRECTOR
BAILEY WHERE BAILEY STATED THAT "FATIGUE WAS NO LONGER THE ISSUE BUT IT
WAS NOW SAFETY, INASMUCH AS UNQUALIFIED PEOPLE WERE SUPPOSEDLY WORKING
POSITIONS VACATED BY OTHERS." BIAVA THEN STATED THAT HE WOULD LIKE TO
KNOW "WHO IS WITH US NOW?" THEN, WHENEVER A CONTROLLER AT THE MEETING
"CALLED IN SICK," THERE WAS A "CHEER AND A CONGRATULATION." GREEN
PERSONALLY THANKED AT LEAST ONE OF THE CONTROLLERS WHO "CALLED IN SICK"
AT THAT MEETING.
AFTER PATCO OFFICIAL GREEN HAD ATTENDED A MEETING OF THE LOS ANGELES
TOWER CONTROLLERS AT THE HOME OF A CONTROLLER ON MARCH 27, HE AND TWO
OTHER TOWER REPRESENTATIVES DROVE TO LANCASTER, CALIFORNIA, WHERE THEY
PARTICIPATED IN A MEETING WITH CONTROLLERS OF THE LOS ANGELES AIR
TRAFFIC CONTROL CENTER. THE PURPOSE OF THIS MEETING WAS TO TRY TO GET
MORE CONTROLLERS AT THE LOS ANGELES CENTER TO PARTICIPATE BECAUSE "THEIR
SICKOUT COUNT WAS RELATIVELY LOWER." GREEN, AMONG OTHERS, SPOKE AT THIS
MEETING ALSO.
ABOUT APRIL 1, JACK RICHARDS, CHIEF OF THE HONOLULU AIR TRAFFIC
CONTROL CENTER IN HONOLULU, HAWAII, NOTICED THAT CONTROLLER MAX GERSTEN
HAD BEEN ABSENT SINCE MARCH 27 ON ALLEGED SICK LEAVE. GERSTEN IS THE
PERSON WHO ANSWERED THE COLLECT TELEPHONE CALL TO VAN SANT AND IS ALSO
THE SUBSTITUTE FOR VAN SANT LISTED ON THE CONFERENCE TELEPHONE CALL MADE
BY BOARD CHAIRMAN ROCK ON MARCH 27. RICHARDS CONTACTED GERSTEN BY
CALLING THE SURF RIDER HOTEL AND ASKING FOR THE PATCO ROOM. GERSTEN
STATED THAT HE HAD BEEN GIVING OTHER CONTROLLERS INFORMATION TO
ENCOURAGE THEM TO STAY AWAY FROM WORK.
AT ANOTHER MEETING OF CONTROLLERS IN LOS ANGELES ABOUT APRIL 4, PATCO
OFFICIAL GREEN WAS INTRODUCED AND GAVE THE MEMBERS "GENERAL INFORMATION
ABOUT HOW MANY PEOPLE WERE ABSENT FROM THE FACILITIES ACROSS THE
COUNTRY" AND WHAT WAS HAPPENING IN WASHINGTON TO CLEAR UP THE PROBLEMS."
WHEN CONTROLLER HINER TOLD GREEN THAT HE HAD RECEIVED FROM THE FAA A
LETTER OF 30 INTENT TO REMOVE HIM FROM HIS POSITION, GREEN TOLD HINER,
"DO NOT RETURN TO WORK."
GLENDON RICHARDS, A CONTROLLER AT HILO TOWER IN HAWAII, RECEIVED
SEVERAL TELEPHONE CALLS AFTER MARCH 25 FROM PATCO BOARD MEMBER VAN SANT
AND FROM MAX GERSTEN. IN THESE CALLS, RICHARDS WAS GIVEN GENERAL
INFORMATION AS TO HOW THINGS WERE GOING AND AS TO THE NUMBER OF
CONTROLLERS STAYING OUT SICK THROUGHOUT THE COUNTRY.
ACTIVITIES WERE COORDINATED BY EMPLOYING A TELEPHONE SYSTEM WHICH
INVOLVED THE COLLECTION OF THE NUMBERS OF ABSENTEE CONTROLLERS AND THE
DISSEMINATION OF THOSE NUMBERS AND OF OTHER INFORMATION TO FIELD
REPRESENTATIVES. THIS INFORMATION WAS TAPED AND RECORDINGS WERE PLAYED
BACK AT CONTROLLERS' MEETINGS AND MEETING PLACES. THE VOICE OF PATCO
BOARD MEMBER AND SOUTHWESTERN COORDINATOR CARL EVANS WAS RECOGNIZED AS
THE SPEAKER IN ONE OF THESE RECORDINGS. PERTINENT EXCERPTS OF BAILEY'S
PRESS CONFERENCES, HEREIN DESCRIBED, WERE ALSO RECORDED AND PLAYED AT
MEETINGS AND MEETING PLACES. IN ADDITION, MESSAGES WERE RECORDED ON THE
PATCO CENTRAL TELEPHONE AT OVERLAND PARK, KANSAS, THE TELEPHONE NUMBER
OF PATCO REGIONAL VICE PRESIDENT AND CENTRAL COORDINATOR NOEL KEANE.
EXECUTIVE DIRECTOR BAILEY'S RECORDED STATEMENT OF MARCH 26 ON THIS PHONE
HAS ALREADY BEEN DESCRIBED. ON MARCH 31, THE MESSAGE RECORDED ON THIS
PHONE WAS FOR THE EVENING OF MARCH 30. IT OPENED WITH THE NEWS THAT
"OUR NUMBERS ARE STRONG AND HOLDING. THE HORSES ARE STANDING." THE
CONCLUDING REMARK WAS "THE NAME OF THE GAME IS WINNER TAKE ALL." THE
TERM "HORSES" WAS HEARD FREQUENTLY BY CONTROLLERS AFTER MARCH 25. THE
TERM WAS UNDERSTOOD BY 55 CONTROLLERS TO MEAN "PEOPLE WHO WERE NOT ON
DUTY WHO WERE NOT ON EXCUSED LEAVE . . . IT COVERED PEOPLE ON SICK LEAVE
OR . . . LEAVE WITHOUT PAY OR AWOL."
ABOUT 7:30 P.M. ON MARCH 28, EXECUTIVE DIRECTOR BAILEY HELD A PRESS
CONFERENCE AT THE GOOSE CREEK COUNTRY CLUB IN LEESBURG, VIRGINIA, AFTER
ATTENDING A CONTROLLERS' MEETING THERE. ALSO PRESENT WAS PATCO BOARD
DIRECTOR VICTOR MAKELA. BAILEY REPORTED ON THE SPREADING ABSENTEEISM.
IN REFERRING TO THE STATUS AT THE LEESBERG CENTER, BAILEY SAID THAT "THE
LEESBERG CENTER ORIGINALLY HAD VERY FEW OUT BECAUSE IT WAS DISORGANIZED.
BUT THE NUMBER HAS BEEN INCREASING DAY TO DAY. I DO NOT HAVE THE
CURRENT NUMBERS AT MY FINGER- TIPS BUT I'M NOT CONCERNED ABOUT THAT."
THE LAST QUESTION ASKED BY A REPORTER WAS, "ARE YOU SAYING IF THE LABOR
DEPARTMENT MOVES INTO IT YOU WOULD IMMEDIATELY LISTEN AND PERHAPS STOP
THE SICK-IN?" BAILEY REPLIED, "WELL, THERE WOULD BE AN AWFULLY LOT OF
LISTENING AND WITH DISPOSITION TO BE CONVINCED . . . "
AS A RESULT OF AN AGREEMENT MADE ON APRIL 2 WITH THE JUSTICE
DEPARTMENT IN THE LITIGATION IN THE U.S. DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA, BAILEY HELD A PRESS CONFERENCE AT THE MAYFLOWER HOTEL IN
WASHINGTON, D.C., AT 4 P.M. ON APRIL 3 IN WHICH HE READ THE "JOINT
STATEMENT OF MYSELF, THE CHAIRMAN OF THE BOARD, MICHAEL ROCK, AND THE
PRESIDENT, JAMES HAYES, AS FOLLOWS":
WE HAVE BECOME INCREASINGLY AWARE OF THE ADVERSE EFFECTS OF THE
PRESENT CONDITIONS ON THE TRAVELLING PUBLIC, THE INTEREST OF THE UNITED
STATES, AS INDEED THE CONTROLLERS THEMSELVES. AND IN RECOGNITION OF OUR
RESPONSIBILITY TO ALL CONCERNED, WE HAVE MET AND CONCLUDED THAT NORMAL
OPERATION OF THE AIR TRAFFIC CONTROL SYSTEM SHOULD BE RESTORED AT ONCE.
WE URGE ALL CONTROLLERS WHO ARE ABLE AND FIT TO REPORT FOR WORK AT THEIR
NEXT NORMAL TOUR OF DUTY.
IN ANSWER TO REPORTERS' QUESTIONS, BAILEY SAID THAT HE DID NOT THINK
HIS STATEMENT WILL BE EFFECTIVE "BECAUSE THIS STATEMENT DOESN'T GIVE ME
THE POWER TO TELL THE MEN WHAT THEY ARE GOING BACK TO THAT'S ANY
DIFFERENT THAN IT WAS ON TUESDAY, OR ANY OTHER DAY." HE ADDED THAT "I
CANNOT HONESTLY REPRESENT TO YOU OR THE PUBLIC THAT THERE HAS BEEN A
CHANGE OF CIRCUMSTANCES WHICH WILL MAKE IT EFFECTIVE." IN REFERRING TO
THE BATON ROUGE CASE, BAILEY STATED, "THE FAA STOOD FIRM, THEY SAID WE
STAND BY OUR ORIGINAL DECISION AND I SUPPOSE THAT WAS THE TRIGGER, BUT
IT'S NOT THE BOMB."
ABNORMAL ABSENTEEISM OF CONTROLLERS BEGAN ON THE DAY SHIFT ON MARCH
25 AT MANY OF THE FAA AIR TRAFFIC CONTROL FACILITIES THROUGHOUT THE
UNITED STATES. FOR THE TWO WORK SHIFTS THAT DAY THE ABNORMAL
ABSENTEEISM OF AIR TRAFFIC CONTROLLERS SCHEDULED TO WORK THROUGHOUT THE
ENTIRE SYSTEM WAS 19.8 PERCENT. THE PERCENTAGE OF ABNORMAL ABSENTEEISM
PROGRESSIVELY INCREASED, ON A DAILY BASIS, THROUGH MARCH 30 WHEN THE
FIGURE REACHED A HIGH OF 30.4 PERCENT. THEREAFTER, THE ABNORMAL
ABSENTEEISM DECLINED UNTIL IT REACHED THE MANAGEABLE RATE OF
APPROXIMATELY 8 PERCENT ON APRIL 14 AND THEREAFTER PRACTICALLY
TERMINATED. DURING THE PERIOD FROM MARCH 26 THROUGH APRIL 7, A PERIOD
OF 13 DAYS, THE ABNORMAL ABSENTEEISM FIGURE DID NOT FALL BELOW 20
PERCENT.
THE AIR TRAFFIC CONTROL CENTERS ARE THE MOST IMPORTANT FACILITIES IN
THE NATIONAL AIR TRAFFIC CONTROL SYSTEM. THE EFFECT OF THE ABNORMAL
ABSENTEEISM AT THE NEW YORK, CLEVELAND, CHICAGO, KANSAS CITY, DENVER AND
OAKLAND CENTERS HALTED TRANSCONTINENTAL TRAFFIC DURING THE PERIOD OF
MARCH 25 TO 27. THE STRATEGIC AIR COMMAND AND ALL MILITARY TRAINING
CONDUCTED UNDER THE INSTRUMENT FLIGHT RULES WERE FORCED TO BE GROUNDED.
AS A RESULT, ON MARCH 28, THE TRANSCONTINENTAL TRAFFIC WAS REROUTED
SOUTH THROUGH THE MEMPHIS CENTER AND ACROSS THROUGH THE ALBUQUERQUE
CENTER, MAKING THE WASHINGTON, D.C. CENTER A VERY CRITICAL ONE AS OF
THAT DATE.
AS A RESULT OF THE ABNORMAL ABSENTEEISM THROUGHOUT THE SYSTEM, THE
UNITED STATES BEGAN TO INSTITUTE LEGAL PROCEEDINGS IN MANY U.S. DISTRICT
COURTS IN AN EFFORT TO GET THE CONTROLLERS BACK TO WORK. THESE RESULTED
IN THE ISSUANCE OF PRELIMINARY INJUNCTIONS AND RESTRAINING ORDERS.
WITH RESPECT TO THE CONDUCT OF THE CONTROLLERS, PATCO'S CONTENTIONS
IN ITS BRIEF MAY BE BROADLY STATED TO BE (A) THAT THERE IS NO EVIDENCE
OF PATCO'S AUTHORIZATION OF, PARTICIPATION IN, OR RATIFICATION OF, THE
SICKOUT OR WORK STOPPAGE OF THE CONTROLLERS, (B) THAT THE CONTROLLERS
WERE MERELY ENGAGING IN INDIVIDUAL ACTIONS AND NOT IN A CONCERNED
ACTIVITY, AND (C) THAT AFTER MARCH 26 THE ABSENCE OF THE CONTROLLERS WAS
JUSTIFIED BECAUSE OF DANGEROUS AND UNSAFE CONDITIONS.
IN SUPPORT OF CONTENTION (A), PATCO MAKES THE FOLLOWING PRINCIPAL
ASSERTIONS WHICH MERIT SOME COMMENT:
(1) THE VAN SANT NOTES PROVE NOTHING. NOT ONLY DO I EMPHATICALLY
DISAGREE BUT I AFFIRMATIVELY VIEW THEM AS A RELEVANT AND IMPORTANT PART
OF THE TOTAL EVIDENCE UPON WHICH PATCO'S LIABILITY FOR THE WORK STOPPAGE
IS HEREIN FOUND. THESE NOTES, THE SUBSTANCE OF WHICH I FIND WAS
COMMUNICATED TO PATCO MEMBER CONTROLLERS THROUGH ACTIONS INITIATED BY
PATCO OFFICERS AND REPRESENTATIVES, PLAINLY LAY DOWN THE GROUND RULES
FOR THE NATIONAL WORK STOPPAGE. THUS, THEY SET FORTH THE REASON FOR THE
WORK STOPPAGE, THE TIME WHEN IT WAS SCHEDULED TO START AND THE REASON
FOR THE SELECTION OF THAT TIME. THEY THEN TOLD THE CONTROLLERS WHAT
EXCUSE TO USE FOR THEIR ABSENCE (THAT IS, THAT THEY SHOULD CALL IN SICK
AND THE PRECISE TIME TO CALL), HOW LONG THEY COULD EXPECT TO BE ABSENT
AND THE ONLY CONDITIONS UNDER WHICH THEY SHOULD RETURN. FINALLY, THEY
WARNED THAT THE NATIONAL OFFICERS WERE EXPECTED TO BE ARRESTED BECAUSE
OF THE WORK STOPPAGE; PREDICTED THAT IN THE FACE OF A RESTRAINING
ORDER, MIKE (ROCK), WHO WAS KNOWN TO BE PATCO'S BOARD CHAIRMAN, OR
BAILEY, WHO WAS KNOWN TO BE PATCO'S EXECUTIVE DIRECTOR AND GENERAL
COUNSEL, WOULD GO ON TELEVISION TO ADVISE THE CONTROLLERS TO GO BACK TO
WORK; AND INSTRUCTED THEM COMPLETELY TO IGNORE SUCH ADVICE. THE
REFERENCE TO "YOUR POSTMAN" IN THE "GOOD LUCK" CONCLUSION WAS AN OBVIOUS
REFERENCE TO THE POSTAL STRIKE THEN IN PROGRESS.
THE SUBSEQUENT EVENTS, WHICH UNFOLDED SUBSTANTIALLY AS SET FORTH IN
THESE NOTES, VERIFY THE FACT THAT THEY SERVED AS THE BLUE PRINT
COMMUNICATED TO AND FOLLOWED BY THE CONTROLLERS IN THE WORK STOPPAGE.
(2) BAILEY'S STATEMENT IN HIS MARCH 26 TELEVISED PRESS CONFERENCE TO
"WALK-OUT" IS NOTHING MORE THAN HIS OPINION AS A LAWYER AND PILOT.
PATCO MAY NOT ESCAPE LIABILITY FOR BAILEY'S DAMAGING INSTRUCTIONS MERELY
BECAUSE HE CLOTHED HIMSELF IN THE GARB OF A LAWYER AND PILOT WHEN HE
SPOKE. BAILEY CANNOT WEAR SEVERAL HATS AND DIVORCE HIMSELF FROM HIS
OFFICIAL CAPACITY AS A PATCO OFFICER AND REPRESENTATIVE MERELY BY
CHANGING HATS. REGARDLESS OF HOW HE DESCRIBED HIMSELF, TO THE
CONTROLLERS HE WAS PATCO'S EXECUTIVE DIRECTOR AND GENERAL COUNSEL. AND
PATCO, I FIND, WAS CLEARLY LIABLE FOR HIS DIRECTIVE TO THE CONTROLLERS
TO "WALK OUT."
(3) ROCK'S STATEMENT AT THE SAME TELEVISED PRESS CONFERENCE WERE
MERELY "THE HEARTFELT FEELINGS OF AN EXPERIENCED CONTROLLER . . .
ACTING TO AVOID THE SAME TRAGIC RESULTS." ROCK'S FEELINGS AND MOTIVES,
HOWEVER COMMENDABLE THEY MAY HAVE BEEN, ARE ENTIRELY IRRELEVANT. WHAT
IS RELEVANT IS THAT PATCO'S BOARD CHAIRMAN BLUNTLY TOLD THE AIR TRAFFIC
CONTROLLERS TO WALK OUT AND ASSUMED RESPONSIBILITY FOR THEIR FAILURE TO
RETURN BY ANNOUNCING THAT "MY MEN CANNOT GO BACK TO WORK UNDER THESE
CONDITIONS." PATCO WAS EQUALLY LIABLE FOR ROCK'S INSTRUCTIONS ON THAT
OCCASION.
(4) PATCO "EXERCISED ITS BEST EFFORTS, ALBEIT UNAVAILING, TO RETURN
THE CONTROLLERS TO WORK. THE OFFICERS MADE ONE APPEAL AFTER ANOTHER TO
THE CONTROLLERS." HOWEVER, THE RECORD SHOWS ONLY ONE SUCH ATTEMPT. THAT
WAS A TWO SENTENCE STATEMENT MADE BY BAILEY IN HIS APRIL 3 PRESS
CONFERENCE, JOINTLY WITH PATCO PRESIDENT AND BOARD CHAIRMAN, PURSUANT TO
AN AGREEMENT WITH THE JUSTICE DEPARTMENT. DURING THE REMAINDER OF THE
PRESS CONFERENCE BAILEY MADE STATEMENTS AND ANSWERED QUESTIONS IN A
MANNER WHICH SEEMED TO NULLIFY THE BACK-TO-WORK APPEAL. INDEED, BAILEY
EMPHASIZED IN THAT SAME PRESS CONFERENCE THAT HE DID NOT EXPECT HIS
STATEMENT TO BE EFFECTIVE AND THAT THERE HAS BEEN NO CHANGE IN THE
CIRCUMSTANCES WHICH CAUSED THE WALKOUT. FURTHERMORE, AS PREVIOUSLY
FOUND, THE CONTROLLERS HAD ALREADY BEEN FOREWARNED OF SUCH A PLEA BY
BAILEY UNDER THE PRESSURE OF A RESTRAINING ORDER AND HAD BEEN INSTRUCTED
THAT SUCH ADVICE HE "COMPLETELY IGNORED." UNDER ALL THE CIRCUMSTANCES,
THIS DOES NOT WARRANT THE CONCLUSION THAT PATCO "EXERCISED ITS BEST
EFFORTS" TO GET THE CONTROLLERS BACK TO WORK.
(5) ONLY A MINORITY OF THE CONTROLLERS WERE ABSENT AND ONLY A
MINORITY OF FACILITIES WERE AFFECTED BY THEIR ABSENCES. HOWEVER, IT WAS
NOT NECESSARY FOR A MAJORITY OF THE CONTROLLERS TO BE ABSENT AND A
MAJORITY OF FACILITIES TO BE AFFECTED TO BRING ABOUT A NATIONAL
DISRUPTION OF AIR TRAFFIC. AS BAILEY HIMSELF ADMITTED IN HIS FEBRUARY
13 PRESS CONFERENCE, THE "CENTERS HAVE A PROFOUND EFFECT ON THE WHOLE
COUNTRY" AND "ANY ONE CENTER COULD TIE UP THE UNITED STATES." WILLIAM
FLEXNER, FAA'S DIRECTOR OF AIR TRAFFIC SERVICE, CREDIBLY TESTIFIED IN
DETAIL ABOUT THE INTEGRATED NATURE OF THE SYSTEM AND THE SEVERE
DISLOCATIONS CAUSED THROUGHOUT THE COUNTRY BY THE ABNORMAL ABSENTEEISM
OF CONTROLLERS IN KEY CENTERS, INCLUDING THE HALTING OF TRANSCONTINENTAL
AIR TRAFFIC FOR SEVERAL DAYS, THE REROUTING OF SUCH TRAFFIC AND THE
GROUNDING OF THE STRATEGIC AIR COMMAND AND ALL MILITARY TRAINING
CONDUCTED UNDER THE INSTRUMENT FLIGHT RULES.
PATCO CONTENDS THAT THE CONTROLLERS' "SICK OUT" WAS NOT A STRIKE OR
CONCERTED ACTIVITY BUT WAS "ACTION BY INDIVIDUAL CONTROLLERS ONLY,
ACTING ON THEIR OWN VOLITION AND WITHOUT ANY ENCOURAGEMENT, DIRECTION,
ORDER OR INSTRUCTIONS FROM PATCO." IN SUPPORT OF THIS CONTENTION, PATCO
ASSERTS THAT THE INDIVIDUAL CONTROLLERS WERE EACH "LEGITIMATELY" ABSENT
BECAUSE OF ILLNESS. THESE CONTENTIONS ARE REFUTED BY THE PREVIOUSLY
DETAILED EVIDENCE WHICH SHOWS THE CONTRARY TO BE THE FACT.
THAT PATCO MEMBER CONTROLLERS, WORKING AT LOCATIONS SCATTERED
THROUGHOUT THE COUNTRY AND IN SOME INSTANCES MORE THAN 3,000 MILES
APART, INDIVIDUALLY AND SPONTANEOUSLY CONCLUDED SEVERAL DAYS BEFORE
MARCH 25 THAT BEGINNING WITH THE 8 A.M. SHIFT THAT DAY THEY WOULD BE TOO
SICK TO WORK AND THEN PROCEEDED TO ABSTAIN FROM WORK ON THAT BASIS,
STRAINS CREDULITY TO THE BREAKING POINT, DEFIES BELIEF, AND IS JUST
INHERENTLY INCREDIBLE. THIS IS NOT TO SAY THAT THERE MAY NOT HAVE BEEN
ISOLATED CASES WHERE A CONTROLLER HAD AN AILMENT WHILE CONTINUING TO
WORK OR WHERE A CONTROLLER'S AILMENT BECAME SO SEVERE DURING THAT PERIOD
AS TO DISABLE HIM FROM CONTINUING TO WORK. BUT AS THE NATIONAL LABOR
RELATIONS BOARD HAD OCCASION TO POINT OUT WITH RESPECT TO A COMPARABLE
SITUATION, /8/ "EXPERIENCE TEACHES THAT IT IS EXCEEDINGLY IMPROBABLE"
THAT SUCH A LARGE GROUP OF EMPLOYEES, "PARTICULARLY WHERE THEY ARE
ORGANIZED, WILL, WITHOUT COMMON AGREEMENT OR DIRECTION, QUIT WORK
VIRTUALLY EN MASSE, AS A RESULT OF AS MANY DIFFERENT INDIVIDUAL
DECISIONS ARRIVED AT INDEPENDENTLY, YET FORTUITOUSLY AT THE SAME TIME."
INDEED, AS THE BOARD CONCLUDED IN THAT CASE, "THE VERY FACT OF SUCH MASS
QUITTING ALONE SUPPLIES PERSUASIVE EVIDENCE, SUFFICIENT IN THE ABSENCE
OF A PLAUSIBLE AND ADEQUATE CONTRARY EXPLANATION, TO SUPPORT AN
INFERENCE THAT THE CESSATION OF WORK WAS THE OUTCOME OF STRIKE OR
CONCERTED ACTION AIMED AT A COMMON OBJECTIVE." THUS, CONTRARY TO PATCO'S
FURTHER CONTENTION, UNDER THE CIRCUMSTANCES DISCLOSED BY THIS RECORD THE
BURDEN WAS ON PATCO TO PROVE THAT ALL THE ABSENT CONTROLLERS WERE ABSENT
BECAUSE THEY, INDIVIDUALLY, WERE IN FACT TOO SICK TO CONTINUE TO REMAIN
AT WORK AT THAT VERY TIME. PATCO ADDUCED NO PERSUASIVE EVIDENCE TO MEET
/9/ THIS BURDEN. ON THE OTHER HAND, THE PREVIOUSLY DETAILED FACTS
CONSTITUTE PERSUASIVE EVIDENCE, IN ADDITION TO THE SIMULTANEOUS ABNORMAL
ABSENCES, THAT SUCH "CESSATION OF WORK WAS THE OUTCOME OF STRIKE OR
CONCERTED ACTION AIMED AT A COMMON OBJECTIVE." IN ADDITION, THERE IS
DIRECT EVIDENCE THAT SOME CONTROLLERS CALLED IN SICK WHO ADMITTEDLY IN
FACT WERE NOT SICK AND THAT OTHERS ANNOUNCED THAT THEIR ALLEGED SICKNESS
WOULD CONTINUE ONLY SO LONG AS THE "SICK OUT" CONTINUED. IT SEEMS
SIGNIFICANT THAT WITHIN A PERIOD OF ABOUT 1 MONTH VIRTUALLY ALL THE
ABSENT CONTROLLERS SUFFICIENTLY RECOVERED FROM THEIR ILLNESS TO ENABLE
THEM TO RETURN TO WORK. I FIND THAT THE ACTIONS OF THE CONTROLLERS IN
ENGAGING IN THE "SICK OUT" WAS A CONCERTED ACTIVITY WHICH WAS "PITCHED
FROM THE TOP DOWN" RATHER THAN, AS PATCO CLAIMS, "FROM THE RANKS OF THE
MEMBERS UP."
45 OF THE MEMBERS UP."
THE EXECUTIVE ORDER CONTAINS NO DEFINITION OF A STRIKE. I AGREE WITH
THE OPPOSING PARTIES THAT THE AFORESTATED CONCERTED WORK STOPPAGE
CONSTITUTED A STRIKE AS DEFINED IN LABOR RELATIONS PRECEDENTS AND
STATUTES AS WELL AS IN THE COMMONLY ACCEPTED USAGE OF THAT TERM. A
STRIKE HAS BEEN DEFINED AS INCLUDING ANY "CONCERTED STOPPAGE OF WORK BY
EMPLOYEES . . . OR OTHER CONCERTED INTERRUPTION OF OPERATIONS BY /10/
EMPLOYEES." SUCH CONCERTED ACTION MAY BE EVIDENCED IN FORMS AND MANNERS
OTHER THAN THE NORMAL, CLASSIFIED CLASSICAL AND TRADITIONAL ONES.
ESPECIALLY IN THE PUBLIC SECTOR HAS IT BEEN RECOGNIZED THAT STRIKES
MIGHT TAKE SPECIAL FORMS, INCLUDING THE "SICK OUT." THUS, THE REPORT OF
THE TWENTIETH CENTURY FUND TASK FORCE /11/ ON LABOR DISPUTES IN PUBLIC
EMPLOYMENT /12/ STATES
THE STRIKE, AS AN ACTION UNDERTAKEN TO FORCE AN UNWILLING EMPLOYER
INTO AGREEMENT THROUGH THE USE OF ECONOMIC POWER, MAY NO LONGER BE
THOUGHT OF EXCLUSIVELY IN ITS CLASSICAL FORM. . .
"SICK LEAVE" TAKEN BY AN ENTIRE DEPARTMENT AT THE SAME TIME,
"RESIGNATIONS," SUBMITTED IN CONCERT ARE EUPHEMISMS FOR THE STRIKE . . .
WHETHER TERMED A "SICK OUT," A "WALK OUT," A "REVOLUTION," "OPERATION
REFORM" OR "OPERATION SAFETY," AS VARIOUSLY REFERRED TO AT DIFFERENT
TIMES IN THE RECORD, I FIND THAT THE CONTROLLERS ENGAGED IN A CONCERTED
WORK STOPPAGE WHICH, HOWEVER DESIGNATED, PLAINLY CONSTITUTED A STRIKE.
PATCO CONTENDS THAT BEGINNING WITH MARCH 26 THE AIR TRAFFIC SYSTEM
BECAME UNSAFE AND "DANGEROUS TO THE TRAVELING PUBLIC FROM AN ACCIDENT"
BECAUSE "FAA BEGAN MANNING THE SYSTEM WITH NONJOURNEYMAN CONTROLLERS WHO
WERE STILL IN TRAINEE STATUS" AND THAT THEREFORE THE CONTROLLERS'
"ABSENCES COULD NOT BE CLASSIFIED AS A STRIKE" BY VIRTUE OF SECTION 502
OF THE TAFT-HARTLEY ACT, A SECTION WHICH SHOULD APPLY WITH EQUAL FORCE
TO THE PUBLIC SECTOR. SECTION 502, ENTITLED SAVING PROVISION, STATES,
IN PERTINENT PART, "NOR SHALL THE QUITTING OF LABOR BY AN EMPLOYEE OR
EMPLOYEES IN GOOD FAITH BECAUSE OF ABNORMALLY DANGEROUS CONDITIONS FOR
WORK AT THE PLACE OF EMPLOYMENT OF SUCH EMPLOYEE OR EMPLOYEES BE DEEMED
A STRIKE UNDER THIS ACT."
I FIND NO MERIT IN PATCO'S CONTENTIONS. SECTION 502 IS NOT
APPLICABLE TO THE FACTS IN THIS CASE. IN THE FIRST PLACE, THE
"ABNORMALLY DANGEROUS CONDITIONS FOR WORK" RELATE TO THE EMPLOYEES OWN
PERSONAL, PHYSICAL HEALTH AND SAFETY. THUS, THE BOARD HAS SPECIFICALLY
HELD THAT "THE MOST REASONABLE PURPOSE" WHICH CONGRESS HAD IN MIND "WAS
TO PROTECT THE RIGHT OF EMPLOYEES TO QUIT THEIR LABOR WITHOUT PENALTY IN
ORDER TO PROTECT THEIR HEALTH AND THEIR LIVES" /13/ (EMPHASIS ADDED).
THIS SECTION THEREFORE DOES NOT PROTECT THE RIGHT OF THE CONTROLLERS TO
ENGAGE IN A WORK STOPPAGE IN ORDER TO PROTECT THE AIR TRAFFIC SYSTEM AND
THE TRAVELLING PUBLIC FROM ACCIDENT. IN THE SECOND PLACE, THE MEANING
OF THE TERM "ABNORMALLY DANGEROUS CONDITIONS" AS USED IN SECTION 502 HAS
BEEN CLASSIFIED BY THE BOARD /14/ AS FOLLOWS:
. . . WE ARE OF THE OPINION THAT THE TERM CONTEMPLATES, AND IS
INTENDED TO INSURE, AN OBJECTIVE, AS OPPOSED TO A SUBJECTIVE, TEST.
WHAT CONTROLS IS NOT THE STATE OF MIND OF THE EMPLOYEE OR EMPLOYEES
CONCERNED, BUT WHETHER THE ACTUAL WORKING CONDITIONS SHOWN TO EXIST BY
COMPETENT EVIDENCE MIGHT IN THE CIRCUMSTANCES REASONABLY BE CONSIDERED
"ABNORMALLY DANGEROUS." IN THE INSTANT CASE, PATCO ADDUCED NO "COMPETENT
EVIDENCE" TO SHOW THAT THE ACTUAL WORKING CONDITIONS ON AND AFTER MARCH
26 WERE "ABNORMALLY DANGEROUS" TO THE AIR TRAFFIC SYSTEM OR TO THE
TRAVELLING /15/ PUBLIC. INDEED, THE CONTROLLERS REPRESENTED BY SIX
OTHER ORGANIZATIONS DID NOT ABSENT THEMSELVES
FROM /16/ WORK. FINALLY, THERE IS NO SHOWING THAT THE REASON THE
CONTROLLERS CONTINUED TO BE ABSENT AFTER MARCH 26 WAS BECAUSE OF ANY
GOOD-FAITH BELIEF THAT THE AIR TRAFFIC SYSTEM WAS UNSAFE AND DANGEROUS
TO THE TRAVELLING PUBLIC FROM AN ACCIDENT.
WERE I REQUIRED TO RELY ONLY ON A SINGLE ACTION AS THE BASIS FOR
PATCO'S LIABILITY IN THIS CASE, I WOULD SELECT THE ONE ON MARCH 26 WHEN,
DURING THE NATIONALLY TELEVISED PRESS CONFERENCE, EXECUTIVE DIRECTOR
BAILEY AND BOARD CHAIRMAN ROCK BLUNTLY CALLED UPON THE CONTROLLERS TO
"WALK OUT." ALTHOUGH THEY MAY HAVE IN GOOD FAITH BELIEVED THAT THEIR
CALL WAS PERMISSIBLE BECAUSE OF THE CLAIMED UNSAFE CONDITIONS TO THE
TRAVELLING PUBLIC, I HAVE PREVIOUSLY FOUND THEM TO BE IN ERROR IN THIS
RESPECT. THUS, THEIR CALL FOR A WALKOUT, I FIND, WAS NO MORE THAN A
PLAIN DIRECTIVE FOR THE CONTROLLERS TO ENGAGE IN A STRIKE AGAINST THE
FAA. MOREOVER, BY SUCH ACTION THEY WERE OPENLY ASSERTING PATCO'S RIGHT
TO STRIKE AGAINST AN AGENCY OF THE UNITED STATES GOVERNMENT.
HOWEVER, PATCO'S LIABILITY NEED NOT REST ON ANY ONE SINGLE ACTION.
ALTHOUGH SOME PARTS OF THE EVIDENCE ARE OBVIOUSLY STRONGER AND MORE
RELEVANT THAN OTHERS, I FIND, UPON CONSIDERATION OF ALL THE PREVIOUSLY
DETAILED EVIDENCE AS A WHOLE, THAT PATCO CALLED THE CONTROLLERS' STRIKE,
ASSISTED AND PARTICIPATED THEREIN DURING ITS DURATION, AND CONDONED IT
BY FAILING TO TAKE AFFIRMATIVE ACTION TO PREVENT /17/ OR STOP IT.
AS PREVIOUSLY STATED, THE CONTENTIONS ARE MADE THAT PATCO SHOULD BE
DISQUALIFIED AS A LABOR ORGANIZATION WITHIN THE MEANING OF SECTION
2(E)(2) OF THE EXECUTIVE ORDER WHICH EXCLUDES AN ORGANIZATION WHICH
"ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES
OR ANY AGENCY THEREOF, OR TO ASSIST OR PARTICIPATE IN SUCH A STRIKE . .
." PATCO ARGUES THAT THE "ASSERTION" CLAUSE IS UNCONSTITUTIONAL AND THAT
IT REFERS NOT ONLY TO THE "RIGHT TO STRIKE" BUT ALSO "TO ASSIST OR
PARTICIPATE IN SUCH A STRIKE." PATCO FURTHER CONTENDS THAT IN ANY EVENT
IT DOES NOT FALL WITHIN THE PROHIBITIONS OF THIS SUBSECTION BECAUSE ITS
CONSTITUTION PROVIDES IN PERTINENT PART THAT "NEITHER THE ORGANIZATION
NOR ANY OF ITS MEMBERS MAY ADVOCATE OR SUPPORT ANY STRIKE OR BOYCOTT OF
AIR TRAFFIC CONTROL." NAGE AND FAA CONTEND THAT THE CONSTITUTIONALITY
ISSUE IS NOT BEFORE ME, THAT THE LANGUAGE SHOULD BE READ IN THE
DISJUNCTIVE SO THAT THE "ASSERTION" CLAUSE APPLIES ONLY TO THE "RIGHT TO
STRIKE" PORTION, AND THAT IN ANY EVENT PATCO'S CONDUCT AND ACTIVITIES IN
ENGAGING, ASSISTING AND PARTICIPATING IN A STRIKE CONSTITUTE THE
"ASSERTION" IN THIS CASE.
I AGREE THAT THE CONSTITUTIONALITY ISSUE IS NOT A MATTER FOR DECISION
BY ME. FOR AN ADMINISTRATIVE AGENCY OR DEPARTMENT OF THE UNITED STATES
GOVERNMENT MUST ASSUME THE CONSTITUTIONALITY OF THE STATUTE OR EXECUTIVE
ORDER IT IS CHARGED WITH ADMINISTERING, ABSENT BINDING COURT DECISIONS
TO THE /18/ CONTRARY. NOR DO I DEEM IT NECESSARY TO DETERMINE WHETHER
THE "ASSERTION" CLAUSE APPLIES ONLY TO THE "RIGHT TO STRIKE" PORTION.
FOR I AGREE WITH NAGE AND FAA THAT THE STRONGEST WAY TO ASSERT THE RIGHT
TO PERFORM AN ACT IS BY ENGAGING IN THE PERFORMANCE OF THAT ACT.
I HAVE FOUND THAT PATCO CALLED THE CONTROLLERS' STRIKE AND ASSISTED
AND PARTICIPATED THEREIN DURING ITS DURATION. I FIND THAT BY THESE
ACTS, CONSIDERED SINGLY AND COLLECTIVELY, PATCO ASSERTED THE RIGHT TO
STRIKE AGAINST AN AGENCY OF THE UNITED STATES GOVERNMENT, OR TO ASSIST
OR PARTICIPATE IN SUCH STRIKE WITHIN THE MEANING OF SECTION 2(A)(2) OF
THE EXECUTIVE ORDER. I THEREFORE FIND THAT AT LEAST DURING THAT PERIOD
PATCO WAS DISQUALIFIED AS A LABOR ORGANIZATION WITHIN THE MEANING OF
THAT SECTION OF THE ORDER.
SECTION 19(B) OF THE EXECUTIVE ORDER PRESCRIBES UNFAIR LABOR
PRACTICES BY LABOR ORGANIZATIONS. THE UNFAIR LABOR PRACTICE COMPLAINT
FILED AGAINST PATCO BY NAGE ALLEGES VIOLATIONS OF SECTIONS 19(B)(4) AND
19(B)(1). AMONG THE CONDUCT PRESCRIBED BY SECTION 19(B)(4) IS TO "CALL
OR ENGAGE IN A STRIKE, (OR) WORK STOPPAGE . . ." AS I HAVE FOUND THAT
PATCO'S STRIKE CONDUCT DISQUALIFIED IT AS A LABOR ORGANIZATION WITHIN
THE MEANING OF SECTION 2(E)(2) OF THE EXECUTIVE ORDER, THE QUESTIONS
ARISE AS TO WHETHER THERE IS AN INCONSISTENCY BETWEEN THE TWO SECTIONS
AND WHETHER SECTION 19(B)(4) MAY BE APPLIED TO PATCO IN THE
CIRCUMSTANCES OF THIS CASE.
AS IS APPARENT FROM MY PREVIOUS FINDINGS, THE SAME CONDUCT WHICH IS
PRESCRIBED AS AN UNFAIR LABOR PRACTICE BY A LABOR ORGANIZATION IN
SECTION 19(B)(4) ALSO DISQUALIFIES THAT SAME ORGANIZATION FROM THE
STATUS OF A LABOR ORGANIZATION WITHIN THE MEANING OF SECTION 2(E)(2).
IN OTHER WORDS, ANY LABOR ORGANIZATION WHICH CALLS OR ENGAGES IN A
STRIKE, AS PRESCRIBED BY SECTION 19(B)(4), IS NOT A LABOR ORGANIZATION
AS DEFINED IN SECTION 2(E)(2). THEREFORE, ANY INTERPRETATION THAT
SECTION 19(B)(4) MAY NOT BE APPLIED TO A LABOR ORGANIZATION WHICH WAS
DISQUALIFIED UNDER SECTION 2(E)(2) IS BASED ON A LITERAL CIRCULAR
REASONING, CREATES AN INCONSISTENCY BETWEEN THE TWO SECTIONS, AND LEADS
TO THE ABSURD RESULT THAT A LABOR ORGANIZATION WHICH CALLS OR ENGAGES IN
A STRIKE COULD NEVER BE FOUND TO HAVE VIOLATED SECTION 19(B)(4) BY SUCH
CONDUCT. SUCH AN INTERPRETATION WOULD TO THAT EXTENT WRITE SECTION
19(B)(4) OUT OF THE EXECUTIVE ORDER.
WELL KNOWN CANONS OF STATUTORY CONSTRUCTION POINT TO A DIFFERENT
APPROACH. THUS, IT HAS BEEN HELD THAT A CONSTRUCTION WHICH CREATES AN
INCONSISTENCY SHOULD BE AVOIDED WHEN A REASONABLE INTERPRETATION CAN BE
ADOPTED WHICH WILL NOT DO VIOLENCE TO THE PLAIN WORDS OF THE STATUTE AND
WILL CARRY OUT THE INTENT OF THE /19/ LEGISLATORS. MOREOVER, ALL
STATUTES MUST BE CONSTRUED IN THE LIGHT OF THEIR PURPOSE, AND A LITERAL
READING WHICH WOULD LEAD TO ABSURD RESULTS IS TO BE AVOIDED WHEN THE
STATUTES CAN BE GIVEN A REASONABLE APPLICATION CONSISTENT WITH THEIR
WORDS /20/ AND LEGISLATIVE PURPOSE.
THE TWO SECTIONS REASONABLY AND CONSISTENTLY MAY BE INTERPRETED AS
SERVING DIFFERENT PURPOSES. THUS, SECTION 19(B) DEALS WITH A LABOR
ORGANIZATION'S MISCONDUCT AND SUBSECTION (4) THEREOF PRESCRIBES CERTAIN
TYPES OF MISCONDUCT SUCH AS CALLING OR ENGAGING IN STRIKES. SECTION
2(E)(2) HOWEVER MAY BE INTERPRETED AS MERELY DISQUALIFYING A LABOR
ORGANIZATION WHICH HAS ENGAGED IN THAT TYPE OF MISCONDUCT FROM BEING
RECOGNIZED AS AN EMPLOYEE BARGAINING REPRESENTATIVE. THUS, IF A LABOR
ORGANIZATION ENGAGES IN A STRIKE, IT HAS VIOLATED SECTION 19(B)(4) AND
BY SUCH CONDUCT HAS ALSO UNDER SECTION 2(E)(2) FORFEITED THE RIGHT TO
ACT AS A LABOR ORGANIZATION ENTITLED TO RECOGNITION AS AN EMPLOYEE /21/
REPRESENTATIVE. I THEREFORE CONCLUDE AND FIND THAT SECTION 19(B)(4) IS
APPLICABLE TO PATCO.
SECTION 19(B)(4) MAKES IT AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION TO--
CALL OR ENGAGE IN A STRIKE, WORK STOPPAGE, OR SLOWDOWN; PICKET AN
AGENCY IN A LABOR-MANAGEMENT DISPUTE; OR CONDONE ANY SUCH ACTIVITY BY
FAILING TO TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT.
AS I HAVE FOUND THAT PATCO CALLED THE CONTROLLERS' STRIKE, ASSISTED
AND PARTICIPATED THEREIN, AND CONDONED IT BY FAILING TO TAKE AFFIRMATIVE
ACTION TO PREVENT OR STOP IT, I FIND THAT PATCO COMMITTED UNFAIR LABOR
PRACTICES WITHIN THE MEANING OF SECTION 19(B)(4) OF THE EXECUTIVE ORDER.
/22/
SECTION 19(B)(1) MAKES IT AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION TO "INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE
EXERCISE OF HIS RIGHTS ASSURED BY THIS ORDER." NAGE CONTENDS THAT PATCO
VIOLATED THIS SECTION IN TWO RESPECTS; FIRST, BY ITS NATIONWIDE STRIKE
WHICH "WAS INTENDED TO FORCE THE GOVERNMENT TO INSTALL PATCO AS THE
NATIONAL EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL AIR TRAFFIC
CONTROLLERS," AND SECOND, BY ENGAGING IN INDEPENDENT ACTS OF
INTERFERENCE, RESTRAINT AND COERCION AGAINST INDIVIDUAL CONTROLLERS. I
FIND NO MERIT IN THESE CONTENTIONS.
AS PATCO POINTS OUT, IN THE ANALOGOUS SITUATION UNDER THE
TAFT-HARTLEY ACT THE SUPREME COURT HAS HELD THAT A STRIKE OF THE KIND
INVOLVED IN THE INSTANT CASE DOES NOT CONSTITUTE RESTRAINT AND COERCION
WITHIN THE MEANING OF THAT /23/ STATUTE. I THEREFORE FIND THAT PATCO'S
CONDUCT WHICH I HAVE FOUND VIOLATED SECTION 19(B)(4) OF THE EXECUTIVE
ORDER DOES NOT DERIVATIVELY CONSTITUTE A VIOLATION OF SECTION 19(B)(1)
OF THE ORDER.
AS FOR PATCO'S ALLEGED INDEPENDENT ACTS OF INTERFERENCE, RESTRAINT
AND COERCION VIOLATIVE OF SECTION 19(B)(1), THE RECORD DOES NOT WARRANT
A FINDING IN THIS RESPECT. NAGE HAD THE BURDEN OF PROVING THE
ALLEGATIONS IN ITS COMPLAINT BY A PREPONDERANCE OF THE EVIDENCE.
ALTHOUGH NAGE PROPERLY ADOPTED THE EVIDENCE ADDUCED BY FAA, IT
NEVERTHELESS FAILED TO MEET ITS BURDEN IN SUPPORT OF THIS ALLEGATION.
AS PREVIOUSLY NOTED, PATCO ATTACKS THE LABOR ORGANIZATION STATUS OF
ATCA ON THE GROUND THAT (1) IT DOES NOT MEET THE GENERAL REQUIREMENTS OF
THE MAIN PROVISIONS OF SECTION 2(E) OF THE EXECUTIVE ORDER AND (2) THAT
IT FALLS WITHIN THE DISQUALIFICATION PRESCRIBED IN SECTION 2(E)(1) OF
THE ORDER.
AMONG THE OBJECTS OF ATCA LISTED IN ITS CONSTITUTION ARE "(1) TO
PROMOTE, MAINTAIN, AND ENHANCE THE STATURE OF THE AIR TRAFFIC CONTROL
PROFESSION" AND "(2) TO PROMOTE, MAINTAIN AND ENHANCE THE STATURE AND
WELFARE OF THE PROFESSIONAL AIR TRAFFIC CONTROLLERS." ATCA'S AFFAIRS ARE
IN THE GENERAL CHARGE OF A COUNCIL CONSISTING OF THE ELECTIVE OFFICERS
(PRESIDENT, VICE PRESIDENT, SECRETARY AND A TREASURER), ALL OF WHOM MUST
BE PROFESSIONAL MEMBERS, THE IMMEDIATE PAST PRESIDENT AND 15 OTHER
ELECTED PROFESSIONAL MEMBERS, 10 OF WHOM SHALL BE PERSONS ACTUALLY
CONTROLLING AIR TRAFFIC AND THE REMAINING FIVE SHALL HOLD AN
ADMINISTRATIVE OR SUPERVISORY POSITION. ATCA HAS ABOUT 2,500 MEMBER, OF
WHOM ABOUT 15 PERCENT, EXCLUDING CREW CHIEFS, ARE SUPERVISORS AS DEFINED
IN SECTION 2(C) OF THE EXECUTIVE ORDER. IF CREW CHIEFS ARE ALSO TO BE
CONSIDERED AS SUPERVISORS, THEN THE SUPERVISORY MEMBERSHIP WOULD BE /25/
40 PERCENT. THE JOURNEYMAN CONTROLLER, GS-10, IS THE LOWEST LEVEL
ADMITTED AS A PROFESSIONAL MEMBER. PROFESSIONAL MEMBERS ARE ELIGIBLE TO
VOTE IN THE ELECTION OF OFFICERS AND COUNCIL MEMBERS, ON PROPOSED
AMENDMENTS TO THE CONSTITUTION AND BYLAWS, ON SUCH MATTERS AS ARE DEEMED
NECESSARY BY THE COUNCIL, AND ON ANY QUESTION WHICH ANY 200 PROFESSIONAL
MEMBERS MAY DESIGNATE.
EXECUTIVE DIRECTOR KRISKE IS IN CHARGE OF AFFAIRS OF ATCA'S NATIONAL
HEADQUARTERS IN WASHINGTON, D.C. IN HIS REPRESENTATIVE CAPACITY HE VERY
FREQUENTLY DEALS WITH THE FAA CONCERNING MATTERS AFFECTING THE WORKING
CONDITIONS OF CONTROLLERS. HE RECENTLY DISCUSSED WITH FAA THE NEW
ORGANIZATION CHANGES FOR AIR TRAFFIC CONTROL CENTERS AND COMPARABLE
PROPOSED ORGANIZATION CHANGES FOR TERMINAL FACILITIES. WHENEVER FAA
ISSUES NEW HANDBOOKS OR AMENDMENTS OR AGENCY ORDERS AFFECTING ITS
CONTROLLER WORK FORCE, IT SUBMITS COPIES TO ATCA AT ITS NATIONAL
HEADQUARTERS AND SEEKS ITS COMMENTS. KRISKE FREQUENTLY RECEIVES LETTERS
FROM INDIVIDUAL MEMBERS CONCERNING PERSONNEL PROBLEMS AND WORKING
CONDITIONS IN WHICH OTHER MEMBERS SIMILARLY SITUATED ARE INTERESTED.
FOR EXAMPLE, HE RECEIVED LETTERS COMPLAINING ABOUT THE ROTATION PATTERN
OF WORK SCHEDULES FROM MEMBERS WHO FELT THAT A MORE DESIRABLE ROTATION
PATTERN COULD BE ESTABLISHED FOR VARIOUS SUPPORTING REGIONS. WHEN SUCH
LETTERS AND COMPLAINTS ARE RECEIVED, KRISKE TAKES THE MATTERS UP WITH
THE APPROPRIATE AGENCY DEPARTMENT AND ATTEMPTS TO HAVE THEM
SATISFACTORILY RESOLVED. KRISKE SPENDS ABOUT 75 PERCENT OF HIS TIME ON
MATTERS INVOLVING PERSONNEL POLICIES AND PRACTICES AND WORKING
CONDITIONS OF CONTROLLERS. IT HAS BEEN THE ESTABLISHED POLICY OF THE
FAA TO DISCUSS PERSONNEL POLICIES AND WORKING CONDITIONS OF CONTROLLERS
AT JOINT MEETINGS OF ATCA AND THE OTHER FIVE ORGANIZATIONS WHICH
REPRESENT CONTROLLERS. THUS, AS PREVIOUSLY FOUND, ATCA WAS PRESENT AT
THE JOINT MEETING WHICH FAA HELD ON FEBRUARY 26 WITH ALL THE
ORGANIZATIONS REPRESENTING CONTROLLERS TO DISCUSS THE CORSON COMMITTEE
REPORT.
ON MAY 9, 1966, THE FAA AND ATCA ENTERED INTO A DUES CHECKOFF
AGREEMENT UNDER A REGULATION OF THE CIVIL SERVICE COMMISSION WHICH
PROVIDED THAT AN EMPLOYEE GROUP MAY HAVE DUES CHECKOFF PRIVILEGES IF THE
AGENCY DETERMINES IT TO BE ELIGIBLE FOR RECOGNITION UNDER EXECUTIVE
ORDER 10988, THE PREDECESSOR TO THE CURRENT EXECUTIVE ORDER. IN A
CLARIFYING LETTER, DATED JULY 15, 1968, THE CIVIL SERVICE COMMISSION
STATED THAT AN AGENCY MAY MAKE A DUES CHECKOFF AGREEMENT "WITH AN
EMPLOYEE ORGANIZATION WHICH IT HAS DETERMINED TO BE ELIGIBLE FOR FORMAL
OR EXCLUSIVE RECOGNITION UNDER E.O. 10988," EVEN THOUGH RECOGNITION AS
SUCH HAD NOT BEEN GRANTED, THAT "A PROFESSIONAL ASSOCIATION RECOGNIZED
OR DEALT WITH OFFICIALLY AS AN EMPLOYEE ORGANIZATION UNDER E.O. 10988 IS
SUBJECT TO THE OBLIGATIONS AS WELL AS THE PRIVILEGES OF EMPLOYEE
ORGANIZATIONS," AND THAT THE "FACT THAT IT MIGHT HAVE AN ADVANTAGE IN
COMPETING WITH OTHER EMPLOYEE ORGANIZATIONS BECAUSE IT ALSO PROVIDES
PROFESSIONAL BENEFITS OR SERVICES FOR ITS MEMBERS IS IMMATERIAL SINCE
THE EXTENT OF THE BENEFITS OR SERVICES EMPLOYEE ORGANIZATIONS OFFER
THEIR MEMBERS IS NOT LIMITED BY E.O. 10988." THEREAFTER, BY LETTER
DATED NOVEMBER 1, 1968 TO EXECUTIVE DIRECTOR KRISKE, THE COMMISSION
REITERATED THE SAME POSITION AS IT RELATED TO ATCA. AGAIN, BY LETTER
DATED MARCH 4, 1969, TO UNITED STATES SENATOR YARBOROUGH, THE COMMISSION
POINTED OUT THAT IF AN ASSOCIATION HAS A DUES WITHHOLDING AGREEMENT, IT
"HAS ESTABLISHED ITS STATUS AS AN EMPLOYEE ORGANIZATION UNDER EXECUTIVE
ORDER 10988."
ON DECEMBER 31, 1969, THE U.S. CIVIL SERVICE COMMISSION ISSUED A NEWS
RELEASE ANSWERING A NUMBER OF QUESTIONS WHICH HAD BEEN RECEIVED
CONCERNING THE CURRENT EXECUTIVE ORDER. THE FIRST QUESTION LISTED IS
WHETHER SUPERVISORS MAY BELONG TO LABOR ORGANIZATIONS. THE ANSWER
STATES, "YES. ALL EMPLOYEES, REGARDLESS OF POSITION, HAVE A RIGHT TO
JOIN, OR NOT TO JOIN, ANY LABOR ORGANIZATION. SEE SECTION 1(A)."
SUBSECTION (E) AND (E)(1) OF SECTION 2 OF THE EXECUTIVE ORDER ARE THE
PERTINENT PROVISIONS RELATING TO THE ISSUES BEARING ON ATCA'S STATUS AS
A LABOR ORGANIZATION. THEY PROVIDE AS FOLLOWS:
(E) "LABOR ORGANIZATION" MEANS A LAWFUL ORGANIZATION OF ANY KIND IN
WHICH EMPLOYEES PARTICIPATE AND WHICH EXISTS FOR THE PURPOSE, IN WHOLE
OR IN PART, OF DEALING WITH AGENCIES CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING THE WORKING
CONDITIONS OF THEIR EMPLOYEES; BUT DOES NOT INCLUDE AN ORGANIZATION
WHICH --
(1) CONSISTS OF MANAGEMENT OFFICIALS OR SUPERVISORS, EXCEPT AS
PROVIDED IN SECTION 24 OF THIS ORDER;
AT THE INSTANT HEARING, PATCO CONTENDED THAT ATCA IS NOT A LABOR
ORGANIZATION AS DEFINED IN THE EXECUTIVE ORDER, RELYING ON TWO GROUNDS.
AS TO THE FIRST GROUND, PATCO'S COUNSEL STATED, "OUR THRESHOLD POSITION
IS THAT IT IS NOT A LABOR ORGANIZATION AS DEFINED IN THE THRESHOLD
PARAGRAPH OF 2(E) BECAUSE" IT "DOES NOT EXIST FOR THE PURPOSE OF DEALING
WITH THE FEDERAL AVIATION ADMINISTRATION CONCERNING GRIEVANCES,
PERSONNEL POLICY AND PRACTICES, OR OTHER MATTERS AFFECTING WORKING
CONDITIONS OF EMPLOYEES OF THE AGENCY." AS TO THE SECOND GROUND, PATCO
CONTENDED THAT ATCA WAS DISQUALIFIED AS A LABOR ORGANIZATION BY SECTION
2(E)(1) OF THE EXECUTIVE ORDER BECAUSE, IN ITS VIEW, THIS PROVISION
EXCLUDES AN ORGANIZATION WHICH INCLUDES SUPERVISORS AMONG ITS MEMBERS.
IN ITS BRIEF, PATCO RAISES ONLY THE SECOND GROUND.
ATCA, ON THE OTHER HAND, CONTENDS THAT IT HAS QUALIFIED AS A LABOR
ORGANIZATION WITHIN THE MEANING OF THE GENERAL PROVISIONS OF SECTION
2(E) OF THE ORDER, THAT IT DOES NOT FALL WITHIN THE EXCLUSION OF SECTION
2(E)(1) BECAUSE, IN ITS VIEW, THIS PROVISION APPLIES ONLY TO AN
ORGANIZATION WHOSE MEMBERSHIP IS COMPRISED SOLELY OF MANAGEMENT
OFFICIALS OR SUPERVISORS, AND THAT THIS ISSUE HAS ALREADY BEEN DECIDED
IN ATCA'S FAVOR BY THE RULING OF THE CIVIL SERVICE COMMISSION THAT ATCA
WAS AN "EMPLOYEE ORGANIZATION" ELIGIBLE FOR RECOGNITION UNDER EXECUTIVE
ORDER 10988.
THE LANGUAGE IN SUBSECTION (E) IS IN ALL RELEVANT RESPECTS VIRTUALLY
IDENTICAL WITH THE DEFINITION OF A LABOR ORGANIZATION IN SECTION 2(5) OF
THE TAFT-HARTLEY ACT. THE EVIDENCE PREVIOUSLY DETAILED CLEARLY WARRANTS
THE FINDINGS, WHICH I HEREIN MAKE, THAT A MAJORITY OF ATCA'S MEMBERS ARE
EMPLOYEES AS DEFINED IN THE EXECUTIVE ORDER, THAT THESE EMPLOYEES DO
PARTICIPATE IN ATCA'S AFFAIRS IN A SUBSTANTIAL AND MEANINGFUL MANNER AND
THAT AT LEAST ONE OF ITS PURPOSES IS TO DEAL WITH THE FAA CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES AND OTHER MATTERS AFFECTING
THE WORKING CONDITIONS OF FAA'S EMPLOYEES. WHILE I DO NOT AGREE WITH
ATCA THAT THE RULINGS OF THE CIVIL SERVICE COMMISSION WITH RESPECT TO
THE STATUS OF ATCA UNDER EXECUTIVE ORDER 10988 IS DISPOSITIVE OF THE
INSTANT ISSUES, /26/ THE COMMISSION'S RULINGS THAT ATCA WAS AN "EMPLOYEE
ORGANIZATION" WITHIN THE MEANING OF THAT DEFINITION IN THAT EXECUTIVE
ORDER WAS A DETERMINATION THAT ATCA HAD, AS THAT DEFINITION PRESCRIBES,
"AS A PRIMARY PURPOSE THE IMPROVEMENT OF WORKING CONDITIONS AMONG
FEDERAL EMPLOYEES." THEREFORE, SO LONG AS ATCA'S EMPLOYEES PARTICIPATE
IN A SUBSTANTIAL AND MEANINGFUL MANNER IN ATCA'S AFFAIRS, AS I HAVE
FOUND THEY DO, THE MERE FACT THAT SUPERVISORS ARE ALSO MEMBERS OF ATCA
DOES NOT BAR ATCA FROM SATISFYING THE REQUIREMENTS FOR A LABOR
ORGANIZATION PRESCRIBED IN SUBSECTION (E). /27/ I FIND THAT ATCA HAS
SATISFIED THE REQUIREMENTS OF THIS SUBSECTION.
PATCO ARGUES THAT IF THE DRAFTEES OF THE EXECUTIVE ORDER INTENDED TO
GIVE THIS LANGUAGE THE MEANING OR CONSTRUCTION FOR WHICH ATCA CONTENDS,
IT WOULD HAVE BEEN A SIMPLE MATTER FOR THEM TO HAVE INCLUDED THE WORK
"SOLELY" OR "ENTIRELY," AND THAT THEREFORE THEIR FAILURE TO DO SO WAS
NOT AN OVERSIGHT. I FIND THIS ARGUMENT TO BE UNPERSUASIVE. FOR IT MAY
BE ARGUED WITH EQUAL FORCE THAT IF THE DRAFTEES INTENDED TO GIVE THE
LANGUAGE THE MEANING OR CONSTRUCTION FOR WHICH PATCO CONTENTS, IT WOULD
HAVE BEEN A SIMPLE MATTER FOR THEM TO HAVE USED THE WORK "INCLUDES"
INSTEAD OF "CONSISTS" AND THAT THEIR CHOICE OF WORDS WAS NOT AN
OVERSIGHT. MOREOVER, THE WORDS "CONSISTS" AND "INCLUDES" ARE NOT
SYNONYMOUS. THE WORD "CONSISTS" HAS BEEN DEFINED AS "COMPOSED OF" OR
"MADE UP OF." /28/ A STRONGER ARGUMENT IS MADE BY PATCO WHEN IT POINTS
OUT THAT AN ORGANIZATION CONSISTING SOLELY OF SUPERVISORS WOULD ALREADY
BE EXCLUDED FROM THE DEFINITION OF A LABOR ORGANIZATION BECAUSE
SUPERVISORS ARE EXCLUDED FROM THE DEFINITION OF "EMPLOYEE," AND THAT
THEREFORE THE PROVISION SHOULD BE CONSTRUED AS APPLYING TO AN
ORGANIZATION WHICH HAS BOTH SUPERVISORS AND EMPLOYEES.
AFTER MUCH CONSIDERATION AND NOT WITHOUT SOME DOUBT, I AM INCLINED TO
ATCA'S INTERPRETATION OF THIS SUBSECTION. SOME SUPERVISORS WERE MEMBERS
OF MANY "EMPLOYEE ORGANIZATIONS" WHICH REPRESENTED THEM AS WELL AS THEIR
NONSUPERVISORY MEMBERS IN ITS DEALINGS WITH AGENCIES UNDER THE
PREDECESSOR EXECUTIVE ORDER 10988. THE FACT THAT AN ORGANIZATION WAS
COMPOSED ENTIRELY OF SUPERVISORS DID NOT DISQUALIFY IT FROM BEING AN
"EMPLOYEE ORGANIZATION" FOR PURPOSES OF RECOGNITION UNDER THAT EXECUTIVE
ORDER. NO ONE QUESTIONS FOR FACT THAT UNDER THE PRESENT EXECUTIVE ORDER
THE DRAFTEES INTENDED TO, AND DID, DISQUALIFY AS A LABOR ORGANIZATION
ONE WHICH IS COMPRISED ENTIRELY OF SUPERVISORS AND/OR MANAGEMENT
OFFICIALS. YET, THEY DID NOT IGNORE THESE GROUPS ENTIRELY. THUS, THE
ORDER MAKES SOME PROVISION FOR THE ESTABLISHMENT BY AN AGENCY OF SOME
SYSTEM OF "COMMUNICATION AND CONSULTATION" WITH ASSOCIATIONS OF
SUPERVISORS (SEC. 7(E)), AND FOR THE AGENCY'S DEDUCTION OF DUES OF "AN
ASSOCIATION OF MANAGEMENT OFFICIALS OR SUPERVISORS" (SEC. 21(B)). BUT
NO PROVISION IS MADE ANYWHERE FOR THE GROUPS OF EMPLOYEES WHO BELONG TO
A MIXED ORGANIZATION. I CANNOT BELIEVE THAT THE DRAFTEES INTENDED TO
DEPRIVE A LARGE NUMBER OF EMPLOYEES FROM REPRESENTATION BY AN
ORGANIZATION OF THEIR CHOICE MERELY BECAUSE SOME SUPERVISORS MAY HAVE
RESTRAINED OR MAINTAINED THEIR MEMBERSHIP IN THE SAME ORGANIZATION EVEN
IF ONLY FOR SUCH PURPOSES OF RECEIVING CERTAIN SERVICES AND BENEFITS
UNRELATED TO RECOGNITION. WHAT THE DRAFTEES WERE MAINLY CONCERNED WITH
WAS TO PREVENT SUPERVISORY OR MANAGEMENT CONTROL OF THE ORGANIZATION, AN
EVIL WHICH PRESUMABLY EXISTED UNDER THE PREDECESSOR ORDER.
THE REPORT AND RECOMMENDATIONS OF THE STUDY COMMITTEE ON THE CHANGES
TO BE MADE IN THIS RESPECT IN THE PREDECESSOR EXECUTIVE ORDER DISCLOSES
A DESIRE AND INTENT TO FOLLOW THE SCHEME OF THE TAFT-HARTLEY ACT WITH
RESPECT TO THE DEFINITION OF A LABOR ORGANIZATION AND THE STATUS OF
SUPERVISORS WITH /29/ RESPECT TO IT. UNDER THAT ACT A SUPERVISOR IS
SPECIFICALLY NOT BARRED "FROM BECOMING OR REMAINING A MEMBER OF A LABOR
ORGANIZATION" (SEC. 14(A)). SUPERVISORY MEMBERSHIP DOES NOT UNDER THAT
ACT IPSO FACTO DISQUALIFY THE ORGANIZATION FROM OCCUPYING THE STATUS OF
A LABOR ORGANIZATION (SEE FTN. 27, SUPRA). SUPERVISORS UNDER THAT ACT
ARE HOWEVER EXCLUDED FROM THE DEFINITION OF "EMPLOYEE" (SEC. 2(3)) AND
FROM EMPLOYEE BARGAINING UNITS OR BARGAINING REPRESENTATIVES (SEC. 9(A)
AND (B)) AND AS MANAGEMENT REPRESENTATIVES ARE PROHIBITED FROM
DOMINATING OR INTERFERING WITH THE FORMATION OR ADMINISTRATION OF ANY
LABOR ORGANIZATION OR CONTRIBUTING ANY SUPPORT TO IT (SEC. 8(A)(2)).
ALTHOUGH NOT REQUIRED TO DO SO, IT IS NOT UNLAWFUL UNDER THAT ACT FOR
ANY EMPLOYER VOLUNTARILY TO RECOGNIZE A UNION COMPOSED EXCLUSIVELY OF
SUPERVISORS AND TO BARGAIN WITH IT ON THEIR BEHALF.
I THEREFORE BELIEVE THAT THE DRAFTEES INTENDED TO, AND DID, ADOPT THE
OBJECTIVES OF THE STUDY COMMITTEE IN THESE RESPECTS. THIS WAS
ACCOMPLISHED BY PERMITTING A LABOR ORGANIZATION TO HAVE AMONG ITS
MEMBERSHIP BOTH EMPLOYEES AND SUPERVISORS AND PROVIDING SAFEGUARDS IN
OTHER PROVISIONS AGAINST THE SUPERVISORS PARTICIPATING IN THE MANAGEMENT
OF THE ORGANIZATION OR ACTING AS ITS REPRESENTATIVE (SEC. 1(B)) OR BEING
INCLUDED IN THE SAME BARGAINING UNIT (SEC. 10(B)(1)), SAFEGUARDS WHICH
DID NOT EXIST IN THE PREDECESSOR EXECUTIVE ORDER. THIS INTERPRETATION
IS VERIFIED BY THE CIVIL SERVICE COMMISSION'S DECEMBER 31, 1969 NEWS
RELEASE IN WHICH THE COMMISSION, IN RESPONSE TO QUESTIONS ON THE PRESENT
EXECUTIVE ORDER, DECLARED THAT SUPERVISORS "HAVE THE RIGHT TO JOIN, OR
NOT JOIN, ANY LABOR ORGANIZATION" BUT THAT THEY MAY NOT PARTICIPATE IN
THE MANAGEMENT OR REPRESENTATION OF A LABOR ORGANIZATION. I THEREFORE
CONSTRUE SUBSECTION E(1) AS APPLYING TO AN ORGANIZATION COMPRISED
ENTIRELY OF SUPERVISORS AND/OR MANAGEMENT OFFICIALS.
I FIND THAT ATCA IS A LABOR ORGANIZATION WITHIN THE MEANING OF
SECTION 2(E) OF THE EXECUTIVE ORDER AND THAT IT DOES NOT FALL WITHIN THE
EXCLUSIONS OF SECTION 2(E)(1). THIS IS NOT TO SAY THAT ATCA MAY NOT BE
DISQUALIFIED FROM BEING RECOGNIZED AS A BARGAINING REPRESENTATIVE
BECAUSE OF FAILURE TO CONFORM TO OR COMPLY WITH OTHER PROVISIONS OF THE
ORDER. HOWEVER, ATCA'S ELIGIBILITY FOR RECOGNITION IS NOT BEFORE ME IN
THIS PROCEEDING.
HAVING FOUND THAT PATCO ENGAGED IN THE UNLAWFUL CONDUCT PREVIOUSLY
DETAILED, THE QUESTION ARISES AS TO THE NATURE OF THE REMEDY TO BE
RECOMMENDED.
PATCO CONTENDS, CORRECTLY IT SEEMS TO ME, THAT THE AUTHORITY OF THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS TO REQUIRE
REMEDIAL ACTION STEMS FROM SECTION 6(B) OF THE EXECUTIVE ORDER WHICH
PROVIDES THAT "THE ASSISTANT SECRETARY MAY REQUIRE AN AGENCY OR LABOR
ORGANIZATION TO CEASE AND DESIST FROM VIOLATIONS OF THIS ORDER AND
REQUIRE IT TO TAKE SUCH AFFIRMATIVE ACTION AS HE CONSIDERS APPROPRIATE
TO EFFECTUATE THE POLICIES OF /30/ THE ORDER." PATCO FURTHER CONTENDS
THAT NOTHING IN THE EXECUTIVE ORDER EMPOWERS THE ASSISTANT SECRETARY TO
WITHHOLD REPRESENTATION STATUS RIGHTS FROM PATCO FOR ANY PERIOD AS A
REMEDY OR PENALTY OR OTHERWISE TO CONDITION PATCO'S RIGHT TO SEEK THE
BENEFITS AND PRIVILEGES UNDER THE EXECUTIVE ORDER. FINALLY, PATCO
CONTENDS THAT CERTAIN ALLEGED MITIGATING CIRCUMSTANCES SHOULD BE WEIGHED
IN THE BALANCE IN DETERMINING THE REMEDY. THESE MITIGATING
CIRCUMSTANCES ARE ASSERTED TO BE (1) ALLEGED ACTS OF EXTREME PROVOCATION
BY FAA IN FAILING (A) TO REMEDY THE CONTROLLERS' ADVERSE WORKING
CONDITIONS, (B) TO ACCORD FULL REPRESENTATION STATUS TO PATCO AND (C) TO
ACT IN GOOD FAITH IN THE MEDIATION OF THE BATON ROUGE CASE, AND (2)
ALLEGED SUBSTANTIAL CHANGES IN THE STRUCTURE AND POSTURE OF PATCO SINCE
THE INSTANT EVENTS DUE TO (A) ITS ABOLISHMENT OF THE OFFICE OF EXECUTIVE
SECRETARY, (B) ITS ELECTION OF NEW OFFICERS AND NEW MEMBERS OF ITS BOARD
OF DIRECTORS AND (C) ITS RECENT AFFILIATION WITH MARINE ENGINEERS
BENEFICIAL ASSOCIATION, AFL-CIO, HEREIN REFERRED TO AS MEBA, WHICH ALSO
DOES NOT ASSERT THE RIGHT TO STRIKE IN THE PUBLIC SECTOR.
THE OTHER PARTIES CONTEND THAT PATCO'S CURRENT PETITION SHOULD BE
DISMISSED AND THAT ITS UNLAWFUL CONDUCT WAS AN FLAGRANT AND INJURIOUS TO
THE PUBLIC INTEREST THAT PATCO SHOULD BE DISQUALIFIED FROM SEEKING
RECOGNITION AS A BARGAINING REPRESENTATIVE UNDER THE EXECUTIVE ORDER ON
A NATIONAL AND LOCAL BASIS FOR A PERIOD OF AT LEAST /31/ 2 YEARS. ATCA
SEEKS TO HAVE THE DISQUALIFICATION PERIOD RUN FOR 3 YEARS FROM JULY 27,
1970, AND TO CONTINUE THEREAFTER UNTIL PATCO "SHALL HAVE DEMONSTRATED
ABANDONMENT OF ITS CLAIM OF RIGHT TO STRIKE BY REMOVAL FROM ELECTIVE
OFFICE OR PAID POSITION ALL OFFICERS, DIRECTORS AND EMPLOYEES WHO WERE
RESPONSIBLE FOR THE MARCH 25 STRIKE." NAGE ALSO SEEKS TO HAVE PATCO AND
ITS SUBORDINATES DISQUALIFIED FOR A 2-YEAR PERIOD FROM INVOKING ANY
OTHER PROCEDURES OF THE EXECUTIVE ORDER.
THEY FURTHER CONTEND THAT THERE IS NO FACTUAL OR LEGAL BASIS FOR
PATCO'S CLAIM THAT THE STRIKE WAS DUE TO ACTS OF EXTREME PROVOCATION BY
FAA. THUS, THEY CORRECTLY POINT OUT (1) THAT THE CONTROLLERS
REPRESENTED BY THE SIX OTHER ORGANIZATIONS WERE WORKING FOR FAA UNDER
SIMILAR ADVERSE CONDITIONS BUT THAT THESE ORGANIZATIONS AND THEIR
MEMBERS DID NOT STRIKE, (2) THAT FULL REPRESENTATION COULD ONLY BE
ACCORDED TO PATCO THROUGH ITS INVOCATION OF THE PROCEDURES SET FORTH IN
THE EXECUTIVE ORDER, AND (3) THAT IN THE BATON ROUGE CASE, WHICH PATCO
ADMITTED "WAS THE FUSE WHICH IGNITED THE BOMB," THE U.S. DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA ON MARCH 26, 1970, ISSUED A
DECISION IN WHICH IT FOUND THAT THE CONTROLLERS "FAILED COMPLETELY TO
SHOW THAT THE TRANSFERS WERE EITHER ARBITRARY, CAPRICIOUS OR
UNREASONABLE," THAT THE EVIDENCE "CLEARLY SUPPORTS" THE FAA POSITION
THAT THE TRANSFERS WERE NECESSARY TO CORRECT OPERATIONAL SHORTCOMINGS AT
THE BATON ROUGE TOWER AND THAT THERE WAS "ABSOLUTELY NOTHING" IN THE
RECORD TO INDICATE THAT THE TRANSFERS WERE MOTIVATED BY THE CONTROLLERS'
AFFILIATION /32/ WITH PATCO.
FINALLY, THEY CONTEND THAT THERE HAS BEEN NO TRUE CHANGE IN PATCO'S
IMAGE, IDENTITY AND POLICIES. IN SUPPORT OF THIS CONTENTION, THEY
CORRECTLY POINT OUT THAT AS AN AFFILIATE OF MEBA, PATCO REMAINS AN
AUTONOMOUS ORGANIZATION WITH ITS OWN OFFICERS AND BOARD OF DIRECTORS,
THAT VIRTUALLY HALF OF PATCO'S OLD BOARD OF DIRECTORS HAVE BEEN
REELECTED, INCLUDING CHAIRMAN OF THE BOARD ROCK, THAT OTHER BOARD
DIRECTORS WERE ELECTED TO HIGHER OFFICE (FOR EXAMPLE, DIRECTOR GREEN WAS
ELECTED AS A NATIONAL VICE PRESIDENT AND DIRECTOR EVANS WAS ELECTED AS A
REGIONAL VICE PRESIDENT), AND THAT BAILEY IS STILL RETAINED AS GENERAL
COUNSEL.
IT IS NOT MY FUNCTION TO DETERMINE OR EVALUATE THE MERITS OF THE
DISPUTES AND GRIEVANCES WHICH EXISTED BETWEEN PATCO AND THE FAA.
HOWEVER, IT IS QUITE OBVIOUS THAT THE EFFECTS OF THE REMEDIES REQUESTED
BY THE OTHER PARTIES, EVEN ASSUMING THE AUTHORITY OF THE ASSISTANT
SECRETARY TO IMPOSE THEM, WOULD FALL MOST HEAVILY ON THE INDIVIDUAL
CONTROLLERS. MANY OF THEM HAVE ALREADY BEEN PENALIZED BY THE FAA FOR
HAVING ENGAGED IN THIS UNLAWFUL STRIKE BY SUSPENSIONS FOR THE PERIOD OF
THEIR ABSENCES AND IN SOME CASES HAVE BEEN SERVED WITH NOTICES OF
DISCHARGE INTENT. THE IMPOSITION OF SIMILAR PENALTIES ON ADDITIONAL
CONTROLLERS WHO PARTICIPATED IN THE STRIKE IS STILL UNDER CONSIDERATION
BY THE FAA. THE ADDITIONAL SANCTIONS PROPOSED BY THE OTHER PARTIES
WOULD BAR BOTH MEMBER AND NONMEMBER CONTROLLERS FROM EXERCISING FOR A
PERIOD OF AT LEAST 2 YEARS THE RIGHTS ASSURED TO THEM BY THE EXECUTIVE
ORDER OF SELECTING THE LABOR ORGANIZATION OF THEIR CHOICE AS THEIR
BARGAINING REPRESENTATIVE. UNDER ALL THE CIRCUMSTANCES THIS REMEDY
STRIKES ME AS EFFECTING AN UNDULY HARSH RESULT. MOREOVER, IT FINDS NO
SUPPORT IN ANY OF THE REMEDIES DEVISED BY THE NATIONAL LABOR RELATIONS
BOARD. NO MATTER HOW FLAGRANT OR REPETITIOUS WERE THE UNFAIR LABOR
PRACTICES COMMITTED BY A LABOR ORGANIZATION, THE BOARD HAS NEVER DEEMED
IT NECESSARY TO EFFECTUATE THE POLICIES OF THE TAFT-HARTLEY ACT BY
BARRING THAT ORGANIZATION FROM SEEKING TO BE CERTIFIED AS THE EMPLOYEES'
BARGAINING REPRESENTATIVE THROUGH THE BOARD'S ELECTION /33/ MACHINERY.
THE ONLY TIME THE BOARD HAS EVER REVOKED A LABOR ORGANIZATION'S EXISTING
CERTIFICATE AS THE EMPLOYEES' STATUTORY BARGAINING REPRESENTATIVE WAS
AFTER A FINDING THAT THE ORGANIZATION HAD FAILED TO HONOR THE
OBLIGATIONS IMPOSED UPON IT BY THE CERTIFICATE WHEN IT DISCRIMINATED
AGAINST UNIT EMPLOYEES BECAUSE OF RACIAL /34/ CONSIDERATIONS.
AS THE ISSUE OF WHAT REMEDY WOULD BE APPROPRIATE TO EFFECTUATE THE
POLICIES OF THE EXECUTIVE ORDER IN THIS CASE IS ONE OF FIRST IMPRESSION
UNDER THE ORDER, IT IN THE FINAL ANALYSIS MAY INVOLVE POLICY
CONSIDERATIONS FOR RESOLUTION BY THE ASSISTANT SECRETARY OF LABOR. FOR
MY PART, I WOULD REQUIRE PATCO TO CEASE AND DESIST FROM THE CONDUCT
HEREIN FOUND VIOLATIVE OF THE ORDER AND FROM ANY LIKE OR RELATED CONDUCT
VIOLATIVE OF THE ORDER, TO POST APPROPRIATE NOTICES, SIGNED BY ITS
NATIONAL PRESIDENT AND BOARD CHAIRMAN, IN ITS NATIONAL AND LOCAL
BUSINESS OFFICES AND MEETING PLACES FOR A PERIOD OF 60 CONSECUTIVE DAYS,
AND TO FURNISH SIGNED COPIES OF SUCH NOTICES TO THE FAA FOR POSTING BY
IT IF WILLING. IN ORDER TO INSURE THAT PATCO NO LONGER ASSERTS THE
RIGHT TO STRIKE AGAINST ANY AGENCY OF THE UNITED STATES GOVERNMENT, OR
TO ASSIST OR PARTICIPATE IN SUCH STRIKE, I WOULD REQUIRE PATCO, UPON
REQUEST, TO FURNISH TO THE ASSISTANT SECRETARY OF LABOR FOR LABOR-
MANAGEMENT RELATIONS OR TO THE APPROPRIATE AREA OR REGIONAL
ADMINISTRATORS OR TO THEIR AGENTS, AT ALL REASONABLE TIMES DURING A
PERIOD OF 1 YEAR FROM THE DATE OF A FINAL ORDER IN THIS CASE, WHATEVER
DATA AND INFORMATION MAY BE DEEMED NECESSARY /35/ FOR THIS PURPOSE. I
WOULD FURTHER REQUIRE PATCO TO AMEND ITS PENDING PETITION TO REFLECT ITS
PRESENT AFFILIATION WITH MEBA AND WOULD DIRECT THAT PROCESSING OF THE
AMENDED PETITION BE WITHHELD BOTH ON A NATIONAL AND LOCAL BASIS UNTIL
THE EXPIRATION OF THE POSTING PERIOD, PROVIDED THAT AT THAT TIME PATCO
SHALL HAVE FULLY COMPLIED WITH ALL OTHER PROVISIONS OF THESE
RECOMMENDATIONS, OTHERWISE, PROCESSING SHALL CONTINUE TO BE WITHHELD
UNTIL THERE HAS BEEN SUCH COMPLIANCE. I WOULD FURTHER DIRECT THAT, IN
THE EVENT PATCO VIOLATES OR FAILS TO COMPLY WITH ANY PROVISION OF THESE
RECOMMENDATIONS AFTER CERTIFICATION AS BARGAINING REPRESENTATIVE
PURSUANT TO SECTION 6(A)(2) OF THE ORDER, REVOCATION OF SAID
CERTIFICATION BE /36/ CONSIDERED.
IT IS APPARENT FROM THE FOREGOING THAT I WOULD NOT REQUIRE DISMISSAL
OF PATCO'S PETITION DESPITE MY PREVIOUS FINDING THAT DURING THE STRIKE
PATCO WAS NOT A LABOR ORGANIZATION WITHIN THE MEANING OF SECTION 2(E)(2)
OF THE EXECUTIVE ORDER. TO DO SO AND THEN TO ENTERTAIN A NEW PETITION
UNDER ITS PRESENT AFFILIATION, AS I HAVE INDICATED MY POSITION TO BE,
WITH THE ATTENDANT NEED FOR THE FILING OF NEW CHALLENGES BY THE
INTERVENORS, WOULD ENTAIL A NEEDLESS EXPENDITURE OF TIME AND FUNDS AND
RESULT MERELY IN EXALTING FORM OVER SUBSTANCE.
IN SUM, IT IS MY CONSIDERED JUDGMENT THAT IT WOULD BE APPROPRIATE TO
EFFECTUATE THE POLICIES OF THE EXECUTIVE ORDER BY THE ADOPTION OF THE
FOLLOWING
I. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC., (HEREIN
CALLED PATCO), AFFILIATED WITH MARINE ENGINEERS BENEFICIAL ASSOCIATION,
AFL-CIO, ITS OFFICERS, AGENTS, AND REPRESENTATIVES, SHALL:
A. CEASE AND DESIST FROM:
1. ASSERTING THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE
UNITED STATES OR THE FEDERAL AVIATION ADMINISTRATION OR ANY OTHER AGENCY
THEREOF, OR TO ASSIST OR PARTICIPATE IN SUCH A STRIKE.
2. CALLING OR ENGAGING IN A STRIKE, WORK STOPPAGE OR SLOWDOWN.
3. CONDONING ANY SUCH ACTIVITY BY FAILING TO TAKE AFFIRMATIVE ACTION
TO PREVENT OR STOP IT.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH IS APPROPRIATE TO
EFFECTUATE THE POLICIES OF THE ORDER:
1. UPON REQUEST, FURNISH TO THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS OR TO THE APPROPRIATE AREA OR REGIONAL
ADMINISTRATORS OR TO THEIR AGENTS, AT ALL REASONABLE TIMES DURING A
PERIOD OF 1 YEAR FROM THE DATE OF A FINAL ORDER IN THIS CASE, SUCH DATA
AND INFORMATION AS THEY MAY DEEM NECESSARY TO INSURE THAT PATCO NO
LONGER ASSERTS THE RIGHT TO STRIKE AGAINST ANY AGENCY OF THE UNITED
STATES GOVERNMENT, OR TO ASSIST OR PARTICIPATE IN SUCH STRIKE.
2. FILE AN AMENDMENT TO ITS PETITION SO AS TO REFLECT ITS PRESENT
AFFILIATION.
3. POST AT ITS NATIONAL AND LOCAL BUSINESS OFFICES AND NORMAL
MEETING PLACES COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX B." SAID
NOTICES SHALL, AFTER BEING SIGNED BY PATCO'S NATIONAL PRESIDENT AND
BOARD CHAIRMAN, BE POSTED FOR A PERIOD OF 60 CONSECUTIVE DAYS IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN BY PATCO TO INSURE
THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY OTHER
MATERIAL.
4. MAIL SUFFICIENT COPIES OF SAID NOTICE, SIMILARLY SIGNED, TO THE
ASSISTANT SECRETARY OF LABOR TO BE FURNISHED BY HIM FOR POSTING BY THE
FEDERAL AVIATION ADMINISTRATION, IF WILLING, AT PLACES WHERE IT
CUSTOMARILY POSTS NOTICES TO ITS EMPLOYEE CONTROLLERS.
5. NOTIFY THE AFOREMENTIONED ASSISTANT SECRETARY OF LABOR OR HIS
AGENTS, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THE RECEIPT OF THIS
REPORT AND RECOMMENDATIONS WHAT STEPS IT HAS TAKEN TO COMPLY THEREWITH.
II. THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS
AND HIS AGENTS, INCLUDING THE APPROPRIATE REGIONAL AND AREA
ADMINISTRATORS, SHALL:
A. WITHHOLD THE PROCESSING OF PATCO'S AMENDED PETITION BOTH ON A
NATIONAL AND LOCAL BASIS UNTIL THE EXPIRATION OF THE 60-DAY POSTING
PERIOD.
B. IF AT THE EXPIRATION OF THE SAID POSTING PERIOD PATCO HAS NOT
FULLY COMPLIED WITH ALL OTHER PROVISIONS OF THESE RECOMMENDATIONS,
CONTINUE THEREAFTER TO WITHHOLD THE PROCESSING OF SAID PETITION UNTIL
THERE HAS BEEN SUCH COMPLIANCE.
C. IN THE EVENT THAT PATCO VIOLATES OR FAILS TO COMPLY WITH ANY
PROVISION OF THESE RECOMMENDATIONS AFTER CERTIFICATION AS BARGAINING
REPRESENTATIVE PURSUANT TO SECTION 6(A)(2) OF THE EXECUTIVE ORDER,
CONSIDER THE REVOCATION OF SAID CERTIFICATION.
DATED AT WASHINGTON, D.C.
I HEREBY NOTE AND CORRECT THE FOLLOWING INADVERTENT OBVIOUS ERRORS IN
THE IN THE TYPEWRITTEN TRANSCRIPT OF THE TESTIMONY:
PAGE . . . LINE . . . CHANGE . . . TO
230 . . . 23 . . . 11 . . . 14
232 . . . 21 . . . 11 . . . 14
464 . . . 22 . . . CALL . . . CULL
468 . . . 18 . . . OUR . . . R
474 . . . 12 . . . IN A . . . AND
479 . . . 21 . . . HALL . . . CALL
721 . . . 8 . . . SCOUT . . . SICKOUT
745 . . . 16 . . . TRIAL . . . TRIER
836 . . . 13 . . . B . . . E
837 . . . 24 . . . EFFECT . . . FIT
874 . . .12 . . .(B) . . . (E)
1147 . . . 9 . . . 2 . . . 23
1236 . . . 21 . . . WOULD . . . WISH
1247 . . . 24 . . . BY THE . . . BODY ,4 1272 . . . 1 . . . I . . .
I DON'T
1275 . . . 1 . . . I . . . IT
WE HEREBY NOTIFY YOU THAT:
WE WILL NOT ASSERT THE RIGHT TO STRIKE AGAINST THE FEDERAL AVIATION
ADMINISTRATION OR ANY OTHER AGENCY OF THE UNITED STATES GOVERNMENT, OR
TO ASSIST OR PARTICIPATE IN SUCH A STRIKE.
WE WILL NOT CALL OR ENGAGE IN A STRIKE, WORK STOPPAGE OR SLOWDOWN.
WE WILL NOT CONDONE ANY OF THE ABOVE-MENTIONED ACTIVITIES AND WE WILL
TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT.
WE WILL, UPON REQUEST, FURNISH TO THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS OR TO THE APPROPRIATE AREA OR REGIONAL
ADMINISTRATORS OR TO THEIR AGENTS, AT ALL REASONABLE TIMES DURING A
PERIOD OF ONE YEAR, SUCH DATA AND INFORMATION AS MAY BE DEEMED NECESSARY
TO INSURE THAT WE NO LONGER ASSERT THE RIGHT TO ENGAGE IN THE CONDUCT
DESCRIBED ABOVE IN THE FIRST PARAGRAPH.
DATED . . . BY . . .PRESIDENT
DATED . . . BY . . . CHAIRMAN OF THE BOARD OF DIRECTORS
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
/1/ OBVIOUS INADVERTENT ERRORS IN THE TYPEWRITTEN TRANSCRIPT OF THE
TESTIMONY HAVE BEEN NOTED AND CORRECTED IN THE APPENDIX, ATTACHED TO
THIS REPORT.
/2/ THE FINDINGS IN THIS SECTION ARE BASED ON ADMISSIONS AND CREDITED
EXHIBITS AND TESTIMONY WHICH HAVE NOT BEEN CONTRADICTED.
/3/ PATCO CONTENDS THAT BAILEY'S TITLE WAS ACTING EXECUTIVE DIRECTOR
BECAUSE THE POSITION OF EXECUTIVE DIRECTOR WAS VACANT. HOWEVER BAILEY
HAS REFERRED TO HIMSELF AS EXECUTIVE DIRECTOR IN HIS CORRESPONDENCE AND
IN AN AFFIDAVIT SUBMITTED TO A FEDERAL COURT AND APPEARING IN A PATCO
SPECIAL BULLETIN. IN ANY EVENT, MY FINDINGS AND CONCLUSIONS ARE THE
SAME EVEN IF HIS TITLE WAS ACTING EXECUTIVE DIRECTOR.
/4/ THE CORSON COMMITTEE, CONSISTING OF EIGHT MEMBERS, WAS APPOINTED
BY TRANSPORTATION SECRETARY VOLPE ON AUGUST 8, 1969. ITS REPORT, FILED
ON JANUARY 29, 1970, IS ENTITLED "AIR TRAFFIC CONTROLLER COMMITTEE
REPORT."
/5/ WHILE NOT SPECIFICALLY ADMITTING HAVING MADE THESE CALLS, SOMMER
TESTIFIED THAT HE DID MAKE QUITE A FEW CONFERENCE CALLS, THAT "IT IS
POSSIBLE" HE MADE THESE TWO CALLS, BUT THAT HE DID NOT "RECALL" MAKING
THEM. HE FURTHER TESTIFIED THAT ANY DISPARITY IN THE BILLING FOR THE
CALLS WOULD HAVE BEEN BROUGHT TO HIS ATTENTION AND HE DID NOT KNOW OF
ANY DISPARITY HAVING BEEN BROUGHT TO HIS ATTENTION.
/6/ FAA'S STATISTICS SHOW THAT THE NORMAL ABSENTEEISM RATE FOR
CONTROLLERS FOR THE 5 DAYS IMMEDIATELY PRECEDING MARCH 25 WAS
APPROXIMATELY 4 PERCENT ON A DAILY BASIS. IN COMPUTING THE "ABNORMAL
ABSENTEEISM" RATE, THE FAA DEDUCTED THE NORMAL ABSENTEEISM RATE OF 4
PERCENT FROM THE "ACTUAL ABSENTEEISM" RATE ON EACH DAY.
/7/ ALTHOUGH THE RECORDED TRANSCRIPT IN EVIDENCE WAS MADE ON MARCH
27, THE CONTENTS, IN THE LIGHT OF BAILEY'S MARCH 26 EVENING NATIONALLY
TELEVISED PRESS CONFERENCE, CLEARLY INDICATES THAT BAILEY'S STATEMENT
WAS RECORDED ON MARCH 26.
/8/ LOCAL 760, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
ROANE-ANDERSON CO.), 82 NLRB 697, 704.
/9/ ONLY ONE CONTROLLER WAS CALLED AS A WITNESS TO TESTIFY CONCERNING
HIS ILLNESS. I CANNOT ACCEPT AS ADEQUATE EVIDENCE SUFFICIENT TO SATISFY
PATCO'S BURDEN OF PROOF IN THIS RESPECT, THE OPINION OF JUDGE PARSONS OF
THE FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS IN THE
CASE OF U.S. V. PLASCH.
/10/ SECTION 501(2) OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,
COMMONLY CALLED TAFT-HARTLEY ACT (61 STAT. 136, 73 STAT. 519). PATCO
ADMITS IN ITS BRIEF THAT THE DEFINITION OF THIS STATUTE "MAY BE REFERRED
TO AS LEGAL ANALOGS FOR THE PUBLIC SECTOR." SEE ALSO NEW INTERNATIONAL
DICTIONARY, 1961 ED. P. 2262, AND WORDS AND PHRASES, VOLUME 40, P. 464
AND FF.
/11/ THE TASK FORCE INCLUDED WELL RECOGNIZED, EXPERIENCED AND
DISTINGUISHED LABOR EXPERTS. THE MEMBERS WERE ARCHIBALD COX, CHARLES C.
KILLINGSWORTH, JOSEPH A. LOFTUS, JOHN W. MACY, JR., WALTER E. OBERER,
WILLIAM SIMKIN, GEORGE W. TAYLOR, SAUL WALLEN AND H. EDWIN YOUNG.
/12/ TWENTIETH CENTURY FUND, PICKETS AT CITY HALL: REPORTS AND
RECOMMENDATIONS OF THE TWENTIETH CENTURY FUND TASK FORCE ON LABOR
DISPUTES IN PUBLIC EMPLOYMENT, 35 (1970).
/13/ KNIGHT MORLEY CORPORATION, 116 NLRB 140, 146, ENFD. 215 F. 2D
753 (C.A. 6), CERT. DENIED 357 U.S. 927.
/14/ REDWING CARRIERS, INC., 130 NLRB 1208, 1209, ENFD, 325 F. 2D
1011, ENFD. 325 F. 2D 1011 (C.A.D.C.), CERT. DENIED 377 U.S. 905.
/15/ SEE, FOR EXAMPLE, CURTIS MATHES MFG. CO., 145 NLRB 473, 475.
/16/ PATCO'S RELIANCE ON CASES LIKE WASHINGTON ALUMINUM CO. (370 U.S.
9) ARE MISPLACED. CASES INVOLVING PROTECTED CONCERTED ACTIVITY ARE
IMPOSSIBLE BECAUSE UNDER THE TAFT-HARTLEY ACT, STRIKES (WITH CERTAIN
EXCEPTIONS NOT HERE PERTINENT) ARE PROTECTED CONCERTED ACTIVITIES WITHIN
THE MEANING OF SECTION 7 OF THAT ACT.
/17/ IN ARRIVING AT THESE FINDINGS, I HAVE NOT RELIED ON THE FACT
THAT INJUNCTIONS AND RESTRAINING ORDERS WERE OBTAINED IN VARIOUS PARTS
OF THE COUNTRY OR ON THE COURT OPINIONS IN THOSE CASES.
/18/ SEE, E.G., TRUCK DRIVERS LOCAL 413 (PATTON WAREHOUSE), 140 NLRB
1474, 1476; CHAUFFEURS, TEAMSTERS, AND HELPERS GENERAL LOCAL UNION NO.
20 (MILWAUKEE CHEESE CO.), 144 NLRB 826, FTN. 2; RITE-FORM CORSET
COMPANY, INC., 75 NLRB 174, 176.
I DO NOT REGARD THE DECISION IN THE BLOUNT CASE, CITED IN PATCO'S
BRIEF, AS A BINDING CONTRARY DECISION, ESPECIALLY IN THE LIGHT OF MY
FINDINGS CONCERNING PATCO'S CONDUCT AND ACTIVITIES.
/19/ U.S. V. RAYNOR, 302 U.S. 540; U.S. V. FOWLER, 302 U.S. 540.
/20/ HAGGAR CO. V. HELVERING, 308 U.S. 389.
/21/ THAT AN ORGANIZATION MAY BE TREATED AS A LABOR ORGANIZATION FOR
SOME PURPOSES AND AT THE SAME TIME BE DISQUALIFIED FOR OTHER PURPOSES IS
NOT AN UNKNOWN PHENOMENON UNDER THE TAFT-HARTLEY ACT. FOR EXAMPLE,
LABOR ORGANIZATIONS WHOSE OFFICERS HAD FAILED TO FILE THE NONCOMMUNIST
AFFIDAVITS REQUIRED BY THE FORMER SECTIONS 9(F), (G) AND (H) OF THAT
ACT, WERE DISQUALIFIED FROM INVOKING THE BOARD'S ELECTION PROCESSES BUT
AT THE SAME TIME WERE FOUND TO HAVE COMMITTED UNFAIR LABOR PRACTICES.
CASES INVOLVING THE UNITED MINE WORKERS ARE CLASSIC EXAMPLES OF THIS
SITUATION. IN ANOTHER INSTANCE, AN ORGANIZATION WHICH QUALIFIED AS A
LABOR ORGANIZATION FOR ALL OTHER PURPOSES WAS NEVERTHELESS DISQUALIFIED
FROM SERVING AS A BARGAINING AGENT BECAUSE OF A CONFLICT OF INTEREST
WITH THE REPRESENTED EMPLOYEES' EMPLOYER. BAUSCH & LAMB OPTICAL CO.,
108 NLRB 1555. SIMILARLY, IT IS WELL ESTABLISHED THAT UNLAWFULLY
ASSISTED OR DOMINATED LABOR ORGANIZATIONS MAY BE FOUND TO HAVE COMMITTED
UNFAIR LABOR PRACTICES AND YET BE DISQUALIFIED FROM SERVING AS EXCLUSIVE
BARGAINING AGENTS
/22/ ALTHOUGH NAGE'S COMPLAINT MERELY ALLEGES THAT PATCO "CALLED AND
ENGAGED IN A NATIONAL STRIKE OF AIR TRAFFIC CONTROLLERS EMPLOYED BY THE
FEDERAL AVIATION ADMINISTRATION," PATCO'S OTHER CONDUCT, FOUND IN THE
TEXT, WAS FULLY LITIGATED. PATCO MAKES NO SHOWING, AS INDEED IT COULD
NOT, AND NO CLAIM, THAT IT HAS IN ANY WAY BEEN PREJUDICED BY THE LIMITED
LANGUAGE IN THE COMPLAINT.
/23/ N.L.R.B. V DRIVERS, CHAUFFEURS, HELPERS, LOCAL UNION NO. 639,
362 U.S. 274, 290; LOCAL 220, INT'L UNION OF ELECTRICAL, RADIO, ETC.,
127 NLRB 1514, 1515.
/24/ THE FINDINGS IN THIS SECTION ARE BASED ON STIPULATIONS OF THE
PARTIES, AND UNCONTRADICTED EXHIBITS AND TESTIMONY.
/25/ IN ADDITION, ATCA HAS ABOUT 50 CORPORATE MEMBERS WHICH ARE NOT
ELIGIBLE TO VOTE IN THE ELECTION OF OFFICERS AND COUNCIL MEMBERS, OR ON
PROPOSED AMENDMENTS TO THE CONSTITUTION AND BYLAWS.
/26/ MY DISAGREEMENT WITH ATCA IN THIS RESPECT IS BASED ON THE FACT
THAT EXECUTIVE ORDER 10988, UNLIKE THE PRESENT ORDER, DOES NOT CONTAIN A
DEFINITION OF "EMPLOYEE" WHICH EXCLUDES A "SUPERVISOR" AND ALSO ON THE
FACT THAT THE DEFINITION OF AN "EMPLOYEE ORGANIZATION" IN THAT ORDER
DIFFERS FROM THE DEFINITION OF A "LABOR ORGANIZATION" IN THE CURRENT
ORDER.
/27/ THESE ARE THE PRECEDENTS ESTABLISHED FOR SECTION 2(5) OF THE
TAFT-HARTLEY ACT. INTERNATIONAL ORGANIZATION OF MASTERS, MATES, AND
PILOTS OF AMERICA, INC., 144 NLRB 1172, ENFD. 351 F. 2D 771, 777
(C.A.D.C.); GREAT LAKES TOWING COMPANY, 168 NLRB NO. 87.
/28/ BLACK'S LAW DICTIONARY, 4TH ED.; WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY.
/29/ REPORT AND RECOMMENDATIONS ON LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SERVICE, AUGUST 1969.
/30/ THIS LANGUAGE IS PATTERNED AFTER SECTION 10(C) OF THE
TAFT-HARTLEY ACT.
/31/ NAGE WOULD HAVE THE 2-YEAR PERIOD RUN FROM MARCH 25, 1970,
WHEREAS FAA
/32/ SEE FAA EXHIBIT NO. 40.
/33/ THE ONLY TIME THE BOARD HAS ORDERED THE DISESTABLISHMENT OF A
LABOR ORGANIZATION WAS TO REMEDY THE UNFAIR LABOR PRACTICES OF AN
EMPLOYER IN DOMINATING THE FORMATION OR ADMINISTRATION OF THE
ORGANIZATION.
/34/ INDEPENDENT METAL WORKERS, LOCAL NO. 1 (HUGHES TOOL COMPANY),
147 NLRB 1573.
/35/ CF. J. J. HAGERTY, INC., 139 NLRB 634, 638-639, WHERE, AS PART
OF THE REMEDY FOR A UNION'S UNFAIR LABOR PRACTICES, THE BOARD DIRECTED
THE UNION, AMONG OTHER THINGS, TO SUBMIT QUARTERLY REPORTS ABOUT THE
EMPLOYMENT OF CERTAIN EMPLOYEES TO WHOM THE UNION HAD UNLAWFULLY DENIED
EMPLOYMENT OF CERTAIN EMPLOYEES TO WHOM THE UNION HAD UNLAWFULLY
DENIED EMPLOYMENT REFERRALS, AND TO MAKE AVAILABLE TO THE REGIONAL
DIRECTOR OR HIS AGENTS, UPON REQUEST, AT ALL REASONABLE TIMES DURING A
PERIOD OF 1 YEAR FROM THE DATE OF THE BOARD'S DECISION ANY RECORDS
RELATING TO THE HIRING AND REFERRAL SYSTEM. THE BOARD FURTHER DIRECTED
ITS REGIONAL DIRECTOR, AT HIS DISCRETION, TO CONDUCT SPOT CHECKS OF THE
UNION'S HIRING AND REFERRAL SYSTEM DURING THAT PERIOD.
/36/ SEE, E.G., 220 TELEVISION, INC., 172 NLRB NO. 142, WHEREIN THE
BOARD HELD THAT "ITS CERTIFICATION OF BARGAINING REPRESENTATIVES ARE
PROPERLY SUBJECT TO ITS RECONSIDERATION AND THAT, WHEN APPROPRIATE, IT
MAY NOTICE OR MAINTAIN THE LOGICAL COHERENCE AND UTILITY OF ITS PRIOR
UNIT DETERMINATIONS BY AMENDMENT, CLARIFICATION, OR EVEN REVOCATION."
1 A/SLMR 9; P. 68; CASE NOS. 21-1876(RO) FORMERLY 44-1876(RO),
20-1856(RO) FORMERLY 45-1856(RO); JANUARY 25, 1971.
PENNSYLVANIA NATIONAL GUARD
A/SLMR NO. 9
THIS CASE INVOLVED REPRESENTATION PETITIONS FILED BY TWO LABOR
ORGANIZATIONS, THE ASSOCIATION OF CIVILIAN TECHNICIANS, INC. (ACT) AND
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3005
(AFGE). THE ACT SOUGHT A UNIT OF ALL WAGE BOARD AND GENERAL SCHEDULE
ARMY NATIONAL GUARD TECHNICIANS IN THE STATE OF PENNSYLAVANIA. THE AFGE
SOUGHT A UNIT OF ALL TECHNICIANS AT THE HUNT ARMORY INSTALLATION OF THE
ARMY NATIONAL GUARD IN THE STATE OF PENNSYLVANIA. THESE PETITIONS
PRESENTED THE QUESTIONS WHETHER A STATE-WIDE UNIT SOUGHT BY THE ACT
CONSISTING OF VARIOUS ARMY NATIONAL GUARD INSTALLATIONS WAS APPROPRIATE
AND WHETHER A SINGLE INSTALLATION-WIDE UNIT AT THE HUNT ARMORY SOUGHT BY
AFGE WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
EXECUTIVE ORDER 11491.
UNDER ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
STATE-WIDE UNIT PETITIONED FOR BY THE ACT WAS APPROPRIATE, AND,
ACCORDINGLY, HE DIRECTED THAT AN ELECTION BE HELD IN THIS UNIT. IN
REACHING THIS DETERMINATION HE NOTED PARTICULARLY THAT WITHIN THEIR
RESPECTIVE WAGE BOARD AND GENERAL SCHEDULE CLASSIFICATIONS ALL ARMY
NATIONAL GUARD TECHNICIANS WITHIN THE STATE HAD THE SAME BASIS FOR
COMPENSATION; THEIR HOURS OF EMPLOYMENT DID NOT VARY; THERE WAS A
DEGREE OF EMPLOYEE INTERCHANGE BETWEEN INSTALLATIONS; AND PROMOTION
OPPORTUNITIES WERE AVAILABLE ON A STATE-WIDE BASIS.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE UNIT SOUGHT BY THE AFGE
COVERING ARMY NATIONAL GUARD TECHNICIANS AT A SINGLE INSTALLATION WITHIN
THE STATE (THE HUNT ARMORY) WAS NOT APPROPRIATE, AND THEREFORE, HE
ORDERED THAT THE PETITION FILED BY THE AFGE BE DISMISSED. IN THIS
REGARD, HE NOTED THAT THE EMPLOYEE WHO CARRIED OUT THE SUPERVISORY
FUNCTIONS AT THE HUNT ARMORY PERFORMED HIS DUTIES UNDER CLEARLY DEFINED
REGULATIONS AND POLICY GUIDELINES. HE NOTED ALSO FACTORS CONCERNING THE
UNIFORM TERMS AND CONDITIONS OF EMPLOYMENT AMONG THE ARMY TECHNICIANS
THROUGHOUT THE STATE AND THE FACT THAT THE EMPLOYEES AT THE HUNT ARMORY
WILL HAVE AN OPPORTUNITY TO VOTE IN A MORE COMPREHENSIVE UNIT ON WHETHER
OR NOT THEY DESIRE UNION REPRESENTATION.
PENNSYLVANIA NATIONAL GUARD /1/ (HUNT ARMORY)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3005
PENNSYLVANIA NATIONAL GUARD
AND
PENNSYLVANIA STATE COUNCIL,
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM B. KANE.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING THE BRIEFS FILED
HEREIN, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. IN CASE NO. 21-1876(RO) PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3005, HEREIN CALLED AFGE, SEEKS AN
ELECTION IN A UNIT OF ALL NONSUPERVISORY TECHNICIANS AT THE HUNT ARMORY
INSTALLATION OF THE ARMY NATIONAL GUARD IN THE STATE OF PENNSYLVANIA.
IN CASE NO. 20-1856(RO), PETITIONER, ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., HEREIN CALLED ACT, SEEKS AN ELECTION IN A UNIT OF ALL
NONSUPERVISORY WAGE BOARD AND GENERAL SCHEDULE ARMY NATIONAL GUARD
TECHNICIANS IN THE STATE OF PENNSYLVANIA. THE ACTIVITY CONTENDS THAT IN
ORDER TO PROMOTE EFFECTIVE DEALINGS, THE APPROPRIATE UNIT HEREIN SHOULD
BE FOUND TO BE STATE-WIDE.
THE ADJUTANT GENERAL OF THE PENNSYLVANIA NATIONAL GUARD ADMINISTERS
THE TECHNICIANS PERSONNEL PROGRAM OF THE PENNSYLVANIA ARMY AND AIR
NATIONAL GUARD. HE ADMINISTERS THIS PROGRAM ON A STATE-WIDE BASIS. THE
FUNCTION OF THESE EMPLOYEES IS TO CARRY ON THE DAY-TO-DAY
ADMINISTRATION, SUPPLY AND MAINTENANCE ACTIVITIES OF THE NATIONAL GUARD
IN ORDER THAT IT BE IN THE HIGHEST STATE OF READINESS IN CASE OF
MOBILIZATION. OF THE APPROXIMATELY 1,800 TECHNICIANS EMPLOYED BY THE
PENNSYLVANIA NATIONAL GUARD, ABOUT 1,060 ARE ARMY NATIONAL GUARD /2/
EMPLOYEES. THESE LATTER EMPLOYEES ARE LOCATED AT APPROXIMATELY 110
FACILITIES THROUGHOUT THE STATE WITH THE EMPLOYMENT AT EACH FACILITY
VARYING IN SIZE FROM 1 EMPLOYEE TO 145 EMPLOYEES.
ALL OF THE GENERAL SCHEDULE AND WAGE BOARD ARMY NATIONAL GUARD
TECHNICIANS WITHIN THE STATE OF PENNSYLVANIA HAVE THE SAME BASIS FOR
COMPENSATION WITHIN THEIR RESPECTIVE CLASSIFICATIONS. THE WORK OF ARMY
NATIONAL GUARD TECHNICIANS IN LIKE POSITIONS THROUGHOUT THE STATE IS THE
SAME AND THE HOURS OF THEIR EMPLOYMENT DO NOT VARY. THERE IS A DEGREE
OF INTERCHANGE OF EMPLOYEES BETWEEN INSTALLATIONS AND PROMOTION
OPPORTUNITIES ARE AVAILABLE TO QUALIFIED INDIVIDUALS FROM OUTSIDE THE
PARTICULAR AREA INVOLVED. FURTHER, PAYROLL RECORDS ARE MAINTAINED
CENTRALLY AND PAYROLL DISTRIBUTION IS HANDLED ON A STATE-WIDE BASIS.
AT EACH INSTALLATION WITHIN THE STATE A STAFF ADMINISTRATIVE
ASSISTANT IS CHARGED WITH THE DAY-TO-DAY SUPERVISION OF THE WORK
PERFORMANCE OF THE EMPLOYEES ASSIGNED TO HIS COMMAND. HE HAS AUTHORITY
TO MAKE WORK ASSIGNMENTS, GRANT LEAVE, AND MAKE RECOMMENDATIONS FOR
SALARY INCREASES, DISCIPLINARY ACTIONS AND THE SELECTION OF NEW
EMPLOYEES.
WITH RESPECT TO BARGAINING HISTORY PRIOR TO THE FILING OF THE SUBJECT
PETITIONS, THE ACTIVITY ACCORDED EXCLUSIVE RECOGNITION TO THE ACT UNDER
EXECUTIVE ORDER 10988 AT TWO INSTALLATIONS WITHIN THE STATE OF
PENNSYLVANIA. HOWEVER, THERE HAS NOT BEEN ANY NEGOTIATED AGREEMENTS
BETWEEN THE ACTIVITY AND THE ACT WITH RESPECT TO THOSE INSTALLATIONS OR
ANY OF THE OTHER INSTALLATIONS IN THE STATE. THE EVIDENCE ALSO
ESTABLISHED THAT THE AFGE HAS BEEN CONSULTING WITH THE ACTIVITY AT THE
HUNT ARMORY WITH RESPECT TO CERTAIN TERMS AND CONDITIONS OF EMPLOYMENT
AT THAT LOCATION.
IN ALL THE CIRCUMSTANCES, INCLUDING THE FACT THAT WITHIN THEIR
RESPECTIVE WAGE BOARD AND GENERAL SCHEDULE CLASSIFICATIONS, ALL ARMY
NATIONAL GUARD TECHNICIANS WITHIN THE STATE OF PENNSYLVANIA HAVE THE
SAME BASIS FOR COMPENSATION, THE FACT THAT THEIR HOURS OF EMPLOYMENT DO
NOT VARY AND THERE IS A DEGREE OF EMPLOYEE INTERCHANGE BETWEEN
INSTALLATIONS, AND THE FACT PROMOTION OPPORTUNITIES ARE AVAILABLE TO
QUALIFIED INDIVIDUALS FROM OUTSIDE THE PARTICULAR LOCAL AREA INVOLVED, I
FIND THAT THE STATE-WIDE UNIT PETITIONED FOR BY THE ACT IS APPROPRIATE.
ACCORDINGLY, I FIND THAT THE FOLLOWING STATE-WIDE UNIT OF ARMY NATIONAL
GUARD TECHNICIANS IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491.
I ALSO FIND THAT IN THE PARTICULAR CIRCUMSTANCES INVOLVED HEREIN, A
SEPARATE UNIT OF PENNSYLVANIA ARMY NATIONAL GUARD TECHNICIANS EMPLOYED
AT THE ACTIVITY'S HUNT ARMORY INSTALLATION IS NOT APPROPRIATE. THE
EVIDENCE DEMONSTRATES THAT THE STAFF ADMINISTRATIVE ASSISTANT, WHO
CARRIES OUT SUPERVISORY FUNCTIONS AT THE HUNT ARMORY, PERFORMS HIS
DUTIES UNDER CLEARLY DEFINED REGULATIONS AND POLICY GUIDELINES.
FURTHER, THERE ARE UNIFORM TERMS AND CONDITIONS OF EMPLOYMENT AMONG ARMY
NATIONAL GUARD TECHNICIANS THROUGHOUT THE STATE, SOME INTERCHANGE OF
EMPLOYEES AND PROMOTION OPPORTUNITIES ARE AVAILABLE ON A STATE-WIDE
BASIS. IN THESE CIRCUMSTANCES AN OPPORTUNITY TO VOTE IN A MORE
COMPREHENSIVE UNIT ON WHETHER OR NOT THEY DESIRE UNION REPRESENTATION, I
FIND THAT THE UNIT SOUGHT BY THE AFGE IS NOT APPROPRIATE, AND THAT,
ACCORDINGLY, ITS PETITION SHOULD BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 21-1876(RO)
BE, AND IT HEREBY IS, DISMISSED.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE PENNSYLVANIA STATE
COUNCIL, /3/ ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
DATED, WASHINGTON, D.C.
JANUARY 25, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ NEITHER OF THE PETITIONERS IN THE SUBJECT CASES SOUGHT TO INCLUDE
AIR NATIONAL GUARD TECHNICIANS IN THEIR PETITIONED FOR UNITS. NOR DID
THE ACTIVITY CONTEND THAT SUCH EMPLOYEES SHARED A COMMUNITY OF INTEREST
WITH THE PETITIONED FOR EMPLOYEES.
/3/ AS THE AFGE'S SHOWING OF INTEREST IS INSUFFICIENT TO TREAT IT AS
AN INTERVENOR IN CASE NO. 20-1856(RO), THE PLACEMENT OF ITS NAME ON THE
BALLOT IS NOT WARRANTED.
1 A/SLMR 8; P. 62; CASE NO. 31-3246E.O.; JANUARY 15, 1971.
UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER
A/SLMR NO. 8
THIS CASE AROSE AS A RESULT OF A REPRESENTATION PETITION FILED ON
MARCH 27, 1970, BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1422, AFL-CIO (AFGE), SEEKING AN ELECTION IN A UNIT OF MOST OF THE
WAGE BOARD EMPLOYEES AT THE UNITED STATES NAVAL CONSTRUCTION BATTALION
CENTER, DAVISVILLE, RHODE ISLAND.
SINCE 1963, THE EMPLOYEES IN THE PETITIONED FOR UNIT AND THE GRADED
EMPLOYEES AT THE CENTER HAD BEEN REPRESENTED IN A SINGLE UNIT BY THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE). THE AFGE CONTENDED
THAT ITS PETITION, WHICH, IN EFFECT, CONSTITUTED AN ATTEMPT TO "CARVE
OUT" THE WAGE BOARD EMPLOYEES FROM THE PREVIOUSLY ESTABLISHED UNIT, WAS
FOR AN APPROPRIATE UNIT SINCE, AMONG OTHER THINGS, THE WAGE BOARD
EMPLOYEES WORKED UNDER AN IDENTICAL WAGE SYSTEM AND HAD SIMILAR WORKING
CONDITIONS. THE ACTIVITY AND THE NAGE TOOK THE POSITION THAT THE
CLAIMED UNIT WAS INAPPROPRIATE SINCE GRADED AND WAGE BOARD EMPLOYEES
SHARED A SUBSTANTIAL COMMUNITY OF INTEREST. MOREOVER, THEY CONTENDED
THAT SEPARATE UNITS WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF AGENCY OPERATIONS.
UPON REVIEW OF THE ENTIRE RECORD OF THE CASE, THE ASSISTANT SECRETARY
FOUND THAT:
(1) THE UNIT PETITIONED FOR BY THE AFGE WAS INAPPROPRIATE, AND
ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED. HE FOUND THE
WAGE BOARD EMPLOYEES HAD A SUBSTANTIAL COMMUNITY OF INTEREST WITH ALL
OTHER EMPLOYEES AT THE ACTIVITY. BECAUSE OF SIGNIFICANT INTERCHANGE
BETWEEN WAGE BOARD AND GRADED EMPLOYEES, EVIDENCE OF WAGE BOARD AND
GRADED EMPLOYEES WORKING SIDE BY SIDE, AND COMMON SUPERVISION, HE FOUND
THE WAGE BOARD EMPLOYEES DID NOT CONSTITUTE A SEPARATE OR DISTINCT
GROUPING OF EMPLOYEES ENTITLED TO SEPARATE REPRESENTATION.
(2) WHERE THE EVIDENCE SHOWS AN ESTABLISHED, EFFECTIVE, AND FAIR
COLLECTIVE BARGAINING RELATIONSHIP IS IN EXISTENCE, COVERING AN
APPROPRIATE UNIT, HE WILL NOT PERMIT SEVERING FROM THAT UNIT EXCEPT IN
UNUSUAL CIRCUMSTANCES.
UNITED STATES NAVAL CONSTRUCTION /1/ BATTALION CENTER
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1422, AFL-CIO
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-14
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER ANTHONY D. WOLLASTON. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
/2/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. NO QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING SECTION 10 OF EXECUTIVE ORDER
11491.
3. PETITIONER SEEKS A UNIT COMPOSED OF: ALL NONSUPERVISORY WAGE
BOARD EMPLOYEES AT THE UNITED STATES NAVAL CONSTRUCTION BATTALION
CENTER, DAVISVILLE, RHODE ISLAND, BUT EXCLUDING ALL MANAGEMENT OFFICIALS
OR SUPERVISORS, ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, ALL GUARDS, ALL PROFESSIONAL EMPLOYEES,
AND ALL UNGRADED NONSUPERVISORY WAGE BOARD EMPLOYEES WHO ARE EMPLOYED IN
THE ADMINISTRATION AND COMPTROLLER, FASCO (FACILITIES SYSTEM OFFICE) AND
SECURITY DEPARTMENTS OF THE ACTIVITY. IT IS THE PETITIONER'S POSITION
THAT THE EMPLOYEES IT SEEKS TO REPRESENT CONSTITUTE AN APPROPRIATE UNIT
BECAUSE THEY HAVE A CLEAR IDENTIFIABLE COMMUNITY OF INTEREST IN THAT
THEY WORK UNDER AN IDENTICAL WAGE SYSTEM AND HAVE SIMILAR WORKING
CONDITIONS. MOREOVER, IN MOST CASES, THEY HAVE SIMILAR SKILLS AND
OCCUPATIONS. THE PETITIONER ALSO ASSERTS THAT IN THE PRIVATE SECTOR THE
NATIONAL LABOR RELATIONS BOARD HAS FOUND APPROPRIATE SIMILAR SEPARATE
UNITS OF CLERICAL EMPLOYEES AND PRODUCTION AND MAINTENANCE EMPLOYEES.
THE ACTIVITY CONTENDS THE UNIT SOUGHT BY THE PETITIONER IS
INAPPROPRIATE BECAUSE WAGE BOARD EMPLOYEES DO NOT CONSTITUTE EITHER A
CRAFT OR A DISTINCT FUNCTIONAL GROUP WHO HAVE SPECIAL INTERESTS
SUFFICIENTLY DIFFERENT FROM GRADED EMPLOYEES TO WARRANT THEIR SEVERANCE
FROM AN EXISTING UNIT THAT HAS BEEN IN EXISTENCE /3/ SINCE JANUARY 1963.
ITS POSITION IS THAT UNGRADED AND GRADED EMPLOYEES SHARE A SUBSTANTIAL
COMMUNITY OF INTEREST WHICH IS SHOWN BY THE FACT THEY WORK TOGETHER,
MANY OF THEM SIDE BY SIDE, UNDER COMMON SUPERVISION AND SHARE COMMON
BENEFITS. FURTHER, THE ACTIVITY STATES THAT SEPARATE UNITS WILL NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS WITHIN
THE MEANING OF SECTION 10(B) OF THE EXECUTIVE ORDER, BUT RATHER WILL
LEAD TO GENERAL LABOR UNREST. IN THIS REGARD, THE ACTIVITY BELIEVES
SEPARATE UNITS WOULD NECESSITATE SEPARATE CONTRACTS WHICH MAY RESULT IN
DIFFERENT WORKING CONDITIONS, BENEFITS AND PERSONNEL POLICIES. IN TURN,
THIS WOULD TEND TO CONFUSE EMPLOYEES AND PROMOTE JEALOUSY WHICH WOULD
IMPAIR THE EFFICIENT OPERATIONS OF THE ACTIVITY. MOREOVER, IT IS
ASSERTED THAT THE PRESENT FLEXIBILITY OF ASSIGNING EMPLOYEES FROM ONE
GROUP TO ANOTHER, I.E. GRADED TO UNGRADED AND VICE VERSA, WOULD BE
SUBSTANTIALLY CURTAILED IF NOT ELIMINATED.
THE INTERVENOR IS IN AGREEMENT WITH THE ACTIVITY THAT THE UNIT SOUGHT
BY THE AFGE IS INAPPROPRIATE. IT POINTS OUT THAT ALL THE EMPLOYEES ARE
CURRENTLY COVERED BY THE SAME PERSONNEL OFFICES, PERSONNEL POLICIES, AND
THE IDENTICAL GRIEVANCE PROCEDURES AND THAT THE WORK INTEGRATION AND
WORK FLOW IS SUCH THAT THE STABILITY OF THE OPERATION DEMANDS AN
ACTIVITY-WIDE UNIT. FURTHER, IN AGREEMENT WITH THE ACTIVITY, IT POINTS
TO THE EMPLOYEES' COMMUNITY OF INTEREST AND HISTORY OF THE PARTIES'
BARGAINING RELATIONSHIP WHICH HAS PRODUCED STABILITY IN LABOR RELATIONS.
THE ACTIVITY IS ENGAGED IN PRESERVING, STORING AND PROVIDING SHIPPING
FACILITIES FOR MOBILIZATION, ADVANCE BASE STOCK, SERVICING NAVAL
CONSTRUCTION UNITS, AND HAS FACILITIES TO PROVIDE ENGINEERING AND
TECHNICAL SERVICES AS REQUIRED. ITS OPERATIONS ARE CONDUCTED AT
DAVISVILLE, RHODE ISLAND, ON A BASE WHICH IS ABOUT THREE MILES LONG,
COVERS 1900 ACRES AND HAS APPROXIMATELY 300 BUILDINGS. THE TOTAL
EMPLOYEE COMPLEMENT CONSISTS OF APPROXIMATELY 719 EMPLOYEES WHICH
INCLUDES APPROXIMATELY 59 GRADED SUPERVISORS; 303 GRADED EMPLOYEES, 35
UNGRADED SUPERVISORS; AND 322 UNGRADED /4/ EMPLOYEES. THE CHIEF OFFICE
AT THE ACTIVITY IS THE COMMAND OFFICE, WHICH HAS UNDER IT 14 DEPARTMENTS
OR OFFICES, WHICH IN TURN, DEPENDING ON THEIR SIZE, ARE SPLIT INTO
DIVISIONS, BRANCHES OR SECTIONS.
THE EMPLOYEES SOUGHT TO BE SEVERED BY THE PETITIONER FROM THE
EXISTING UNIT, WITH FOUR INDIVIDUAL EXCEPTIONS, ARE CONCENTRATED IN THE
SUPPLY DEPARTMENT, WHERE THERE ARE EMPLOYED APPROXIMATELY 163 WAGE BOARD
EMPLOYEES, AND THE CONSTRUCTION EQUIPMENT DEPARTMENT, HEREIN CALLED CED,
WHERE THERE ARE EMPLOYED APPROXIMATELY 155 WAGE BOARD EMPLOYEES. THE
RECORD ALSO REVEALS THAT THERE ARE APPROXIMATELY 94 GRADED EMPLOYEES IN
THE SUPPLY DEPARTMENT AND APPROXIMATELY 17 GRADED EMPLOYEES IN CED.
CED CONSISTS OF FOUR DIVISIONS: ADMINISTRATIVE DIVISION; PRODUCTION
AND QUALITY CONTROL DIVISION; EQUIPMENT OVERHAUL AND REPAIR DIVISION;
AND TRANSPORTATION EQUIPMENT MAINTENANCE DIVISION.
THE ADMINISTRATIVE DIVISION, WHICH PERFORMS THE NORMAL ADMINISTRATIVE
REQUIREMENTS FOR CED, CONTAINS ONLY GRADED EMPLOYEES WHO ARE NOT BEING
SOUGHT BY THE PETITIONER. NOR IS THE PETITIONER SEEKING THE GRADED
OFFICE EMPLOYEES AND SCHEDULING BRANCH EMPLOYEES IN THE PRODUCTION AND
QUALITY CONTROL DIVISION. THERE IS, HOWEVER, A BRANCH IN THIS LATTER
DIVISION, THE INSPECTION BRANCH, WHICH IS COMPRISED OF 15 INSPECTORS WHO
ARE WAGE BOARD EMPLOYEES AND ARE COVERED BY THE PETITION. THESE
INSPECTORS RECEIVE SHOP REPAIR ORDERS OR EQUIPMENT WORK ORDERS FROM THE
GRADED EMPLOYEES OF THE SCHEDULING BRANCH AND, AFTER LOOKING AT THE
EQUIPMENT, THEY WRITE UP THE WORK TO BE ACCOMPLISHED. THE INSPECTORS
SPEND THEIR TIME IN THE VARIOUS SHOPS AT THE ACTIVITY.
THE THIRD DIVISION IN CED, EQUIPMENT OVERHAUL AND REPAIR DIVISION, IS
UNDER THE GENERAL SUPERVISION OF A WAGE BOARD EMPLOYEE AND ALL OF THE
EMPLOYEES IN THIS DIVISION ARE WAGE BOARD EMPLOYEES. THIS DIVISION HAS
FOUR BRANCHES; AUTO EQUIPMENT REPAIR BRANCH; CONSTRUCTION EQUIPMENT
REPAIR BRANCH; SERVICE EQUIPMENT REPAIR BRANCH; AND SHOP SUPPORT
BRANCH. THE EMPLOYEES IN THIS DIVISION ARE PRIMARILY AUTOMOTIVE
MECHANICS, HEAVY DUTY EQUIPMENT MECHANICS, CRAFTSMEN AND SPECIALISTS.
THE REMAINING DIVISION IN CED, THE TRANSPORTATION EQUIPMENT
MAINTENANCE DIVISION CONTAINS TWO BRANCHES-- THE AUTOMOTIVE AND GROUND
SUPPORT EQUIPMENT MAINTENANCE BRANCH, AND THE CONSTRUCTION AND MATERIAL
HANDLING EQUIPMENT MAINTENANCE BRANCH. THERE ARE 22 WAGE BOARD
EMPLOYEES, PRIMARILY MECHANICS, WHO WORK IN THE AUTOMOTIVE AND GROUND
SUPPORT EQUIPMENT MAINTENANCE BRANCH AND 16 WAGE BOARD EMPLOYEES,
PRIMARILY MECHANICS, WHO WORK IN THE CONSTRUCTION AND MATERIAL HANDLING
EQUIPMENT MAINTENANCE BRANCH. IN ADDITION TO THESE WAGE BOARD
EMPLOYEES, THERE ARE THREE GRADED EMPLOYEES IN THIS DIVISION.
WITH RESPECT TO THE WORK PERFORMED IN CED, THE RECORD REVEALS THE
GRADED SCHEDULERS HAND DELIVER THEIR ORDERS TO UNGRADED INSPECTORS, AND
SCHEDULERS AND INSPECTORS WORK TOGETHER SEVERAL HOURS A DAY. FURTHER,
IN CONNECTION WITH THEIR WORK, THE SCHEDULERS CONTACT WAGE BOARD
SUPERVISORS IN THE SHOP ABOUT THE STATUS OF WORK AND ALSO TALK TO WAGE
BOARD MECHANICS IN THE SHOPS ABOUT DETAILS OF THE WORK BEING DONE.
PRODUCTION SCHEDULING CLERKS, WHO ARE GRADED, SCHEDULE EQUIPMENT BEING
PROCESSED THROUGH THE SHOP AND IT IS NECESSARY THAT THEY HAVE CONTACT
WITH UNGRADED EMPLOYEES. THE GRADED PREVENTIVE MAINTENANCE CLERK
SCHEDULES WORK THAT IS TO BE DONE IN THE SHOP (PRIMARILY BY UNGRADED
EMPLOYEES), AND HANDLES CALLS SUCH AS TIRE AND BATTERY TROUBLE CALLS AND
THEN TRANSMITS INSTRUCTIONS DIRECTLY TO THE TIRE MAN OR BATTERY MAN, WHO
ARE UNGRADED, AS THE CASE MAY BE. UNGRADED EMPLOYEES IN THE REPAIR AND
MAINTENANCE BRANCHES MAKE CONTACT WITH GRADED WAREHOUSE EMPLOYEES OR
SUPERVISORS WHEN THEY GO INTO THE WAREHOUSE TO WORK ON EQUIPMENT. AFTER
CED REPAIRS OR OVERHAULS EQUIPMENT, IT IS BROUGHT TO THE COMPLETED LINE
FROM WHICH IT IS TAKEN TO ITS ULTIMATE DESTINATION BY STORAGE OR SUPPLY
AREA EMPLOYEES. GRADED EMPLOYEES IN THE SUPPLY DEPARTMENT HAVE OCCASION
TO ENTER SHOP AREAS WHERE UNGRADED EMPLOYEES WORK TO CHECK OR SEARCH FOR
EQUIPMENT. COUNTERMEN, WHO ARE GRADED AND WHO WORK IN THE SUPPLY
DEPARTMENT, COME INTO CONTACT WITH MECHANICS WHO ARE UNGRADED, WHEN
MECHANICS COME TO THEM FOR PARTS. THE COUNTERMEN AND MECHANICS BOTH
WORK IN THE SHOPS. A PRODUCTION CONTROLLER, WHO IS GRADED, WORKS IN THE
SAME OFFICE AS THE UNGRADED INSPECTORS AND HAS CONTACT WITH THE
INSPECTORS ON A CONTINUING BASIS AS TO THE STATUS OF EQUIPMENT.
WITH RESPECT TO WORKING CONDITIONS IN CED, THE WAGE BOARD EMPLOYEES
GENERALLY WORK IN SHOP AREAS WHICH ARE AS LARGE AS 100 FEET BY 100 FEET,
WHEREAS THE GRADED EMPLOYEES GENERALLY WORK IN OR OUT OF OFFICES. THE
SHOP AREAS ARE HEATED BY STEAM HEAT WITH BLOWERS AND THE OFFICE AREAS
ARE HEATED BY RADIATORS. THE OFFICE AREAS ARE COOLED BY FANS IN THE
SUMMERTIME, BUT THE ONLY FAN IN THE SHOP AREA IS LOCATED NEAR THE
WELDERS. SHOP DOORWAYS OPEN TO THE OUTSIDE AND, IN BAD WEATHER WHEN THE
DOORS ARE REQUIRED TO BE OPEN TO LET PIECES OF LARGE EQUIPMENT THROUGH,
RAIN OR SNOW MAY COME THROUGH THE DOOR OPENINGS, WHEREAS THE OFFICE
AREAS DO NOT HAVE THIS PROBLEM. SHOP EMPLOYEES WEAR SAFETY EQUIPMENT
WHEN /5/ REQUIRED. SOME WAGE BOARD EMPLOYEES, SUCH AS MECHANICS, WEAR
COVERALLS OR RENT WORKING CLOTHES, BUT OTHER WAGE BOARD EMPLOYEES, SUCH
AS INSPECTORS, WEAR REGULAR STREET CLOTHES. THE NOISE LEVEL IN THE
SHOPS IS HIGHER THAN THAT IN THE OFFICE AREAS AND SHOP EMPLOYEES ARE
SUBJECT TO VARIOUS FUMES, BUT THERE ARE EXHAUST FANS TO CARRY THESE
FUMES OUT OF THE SHOPS. HOWEVER, FUMES AND ELEMENT PROBLEMS ARE NOT
EXCLUSIVE WITH WAGE BOARD EMPLOYEES, AS ON OCCASION GRADED EMPLOYEES
ALSO WORK IN THE SHOPS. SHOP EMPLOYEES, IN VARYING DEGREES, ARE SUBJECT
TO INDUSTRIAL ACCIDENTS, AND ON OCCASION WORK IN THE SHOPS REQUIRES
CLIMBING FOR BOTH GRADED AND UNGRADED EMPLOYEES. AT TIMES, SHOP
EMPLOYEES ARE REQUIRED TO WORK OUTSIDE IN BAD WEATHER, ALTHOUGH THIS
WORK IS KEPT AT A MINIMUM. THE WORK IN THE SHOP AREAS IS DIRTIER THAN
THAT ENCOUNTERED BY OFFICE EMPLOYEES, BUT BOTH GROUPS HAVE WASH-UP TIME.
WITH RESPECT TO LABOR RELATIONS IN CED, THE RECORD REVEALS THAT
ACCORDING TO PROVISIONS IN THEIR AGREEMENT, THE ACTIVITY MEETS WITH THE
NAGE REPRESENTATIVES ON A MONTHLY BASIS. IT IS DEPARTMENT POLICY THAT
SUPERVISORS HAVE THE AUTHORITY TO SETTLE GRIEVANCES. ON OCCASION, LABOR
OR PERSONNEL PROBLEMS ARE TAKEN UP DIRECTLY WITH THE CIVILIAN HEAD OF
THE DEPARTMENT, AND IN OTHER INSTANCES, PROBLEMS GO TO HIM IF THEY ARE
NOT RESOLVED AT A LOWER LEVEL. THE EVIDENCE REVEALS THAT THE MAJORITY
OF UNION COMPLAINTS OR PROBLEMS INVOLVE WAGE BOARD EMPLOYEES, ALTHOUGH
THE PROCEDURES APPLY EQUALLY TO GRADED AND UNGRADED EMPLOYEES.
THE SECOND DEPARTMENT IN WHICH THE PETITIONER IS SEEKING TO REPRESENT
EMPLOYEES IS THE SUPPLY DEPARTMENT. THIS DEPARTMENT IS RESPONSIBLE FOR
THE RECEIPT, STORAGE MAINTENANCE, SHIPMENT, PRESERVATION, PACKING AND
SHIPMENT OF PRE-POSITION WAR RESERVE STOCKS, AND FOR OUTFITTING THE
ATLANTIC BATTALIONS. IT CONTAINS 8 DIVISIONS, 11 BRANCHES AND 14
SECTIONS INCLUDING 39 STORAGE BUILDINGS PLUS ABOUT 12 OTHER OFFICE AND
WORK AREAS LOCATED THROUGHOUT THE BASE.
ALTHOUGH THE SUPPLY DEPARTMENT HAS A RELATIVELY LARGE STRUCTURE, THE
RECORD IN THE SUBJECT CASE IS CONFINED MAINLY TO THE FUNCTIONS OF THE
MATERIAL DIVISION, WHERE BOTH GRADED AND UNGRADED EMPLOYEES ARE EMPLOYED
IN THE FIVE FOLLOWING BRANCHES: FREIGHT TERMINAL BRANCH; STORAGE
BRANCH; LABOR AND EQUIPMENT BRANCH; SHOP STORES BRANCH, AND PACKING
AND PRESERVATION BRANCH. THESE FIVE BRANCHES HAVE A TOTAL OF 10
SECTIONS.
THE FREIGHT TERMINAL BRANCH CONTAINS TWO SECTIONS-- THE RECEIVING,
INSPECTION AND DELIVERY SECTION AND THE SHIPPING SECTION. THIS BRANCH
IS RESPONSIBLE FOR RECEIVING, INSPECTING, DELIVERING, AND SHIPPING BY
LAND, AIR AND WATER, AND FOR SECURING THE MATERIALS AND EQUIPMENT AT
TIMES OF SHIPMENT. THE SUPERVISOR OF THIS BRANCH IS GRADED.
THE STORAGE BRANCH IS LOCATED IN 39 DIFFERENT BUILDINGS AND IS
RESPONSIBLE FOR THE PHYSICAL HANDLING OF ALL THE MATERIALS IN THE WAR
RESERVE STOCKS AND FOR MAINTAINING MATERIALS THAT BELONG TO THE
CONSTRUCTION BATTALION ATLANTIC. MOST OF THE EMPLOYEES IN THIS BRANCH
ARE UNGRADED, BUT THE SUPERVISOR IS GRADED.
THE LABOR EQUIPMENT BRANCH IS RESPONSIBLE FOR PROVIDING SERVICES TO
STATION DEPARTMENTS AND TENANT ACTIVITIES THROUGHOUT THE BASE. THERE IS
ONE GRADED CLERK IN THIS BRANCH, AND THE OTHER EMPLOYEES WHO ARE
UNGRADED, WORK AS HEAVY LABORERS AND LIFT OPERATORS.
THE SHOP STORAGE BRANCH SUPPLIES ALL THE STATION DEPARTMENTS AND
ACTIVITIES WITH THE MATERIALS THEY REQUIRE.
THE PACKING AND PRESERVATION BRANCH HAS SEVERAL LOCATIONS THROUGHOUT
THE ACTIVITY. IT ALSO HAS A FIELD TRUCK THAT OPERATES THROUGHOUT THE
AREA. WITH THE EXCEPTION OF ONE GRADED CLERK, ALL OF THE EMPLOYEES IN
THIS BRANCH, WHO ARE PRINCIPALLY PACKERS AND MECHANICS, AND THE
SUPERVISOR IN CHARGE, ARE WAGE BOARD EMPLOYEES.
THE RECORD REVEALS THAT WITHIN THE SUPPLY DEPARTMENT THERE IS A
SUBSTANTIAL AMOUNT OF INTERCHANGE OF EMPLOYEES FROM ONE JOB TO ANOTHER,
AS WELL AS INTERRELATIONSHIPS BETWEEN GRADED AND UNGRADED EMPLOYEES.
WITH RESPECT TO THE FREIGHT TERMINAL BRANCH, GRADED EMPLOYEES ARRANGE
FOR THE SHIPPING, AND UNGRADED EMPLOYEES DO THE PHYSICAL LOADING AND
ACTUAL SHIPPING. THERE IS A LIAISON SECTION OF THREE GRADED EMPLOYEES
WHO ARE ASSIGNED TO THE RECEIPT CONTROL BRANCH OF THE CONTROL DIVISION,
BUT WHO WORK IN THE RECEIVING, INSPECTION AND DELIVERY SECTION OF THE
FREIGHT TERMINAL BRANCH. THESE GRADED EMPLOYEES HAVE A RECORD OF ALL
MATERIALS DUE TO COME IN, AND WHEN THE MATERIAL IS RECEIVED, THE
UNGRADED RECEIVING EMPLOYEES UNLOAD THE TRUCK, PLACE THE MATERIAL ON THE
RECEIVING FLOOR, PULL THE VENDOR'S SLIP, AND GIVE IT TO THE GRADED
LIAISON EMPLOYEES, WHO, IN TURN, BASED ON THE PURCHASE ORDER NUMBER,
PULL THE CORRESPONDING PAPER WORK SO THAT THE RECEIVING EMPLOYEES CAN
ASCERTAIN WHERE THE MATERIAL IS TO BE DELIVERED. AN UNGRADED SUPERVISOR
IN THE RECEIVING BUILDING SUPERVISES A GRADED SUPPLY CLERK IN HIS
OFFICE, AND A GRADED TRAFFIC CLERK SUPERVISES UNGRADED STOCK MEN IN THE
TRANSIT SHED.
ALTHOUGH MOST OF THE EMPLOYEES IN THE STORAGE BRANCH ARE UNGRADED AND
WORK THROUGHOUT THE 39 WAREHOUSES, EMPLOYEES FROM THE TECHNICAL
REQUIREMENTS DIVISION, WHO ARE ALL GRADED, WORK WITH AND ASSIST THEM.
IN ADDITION, THERE ARE THREE GRADED EQUIPMENT SPECIALISTS ASSIGNED TO
THE STORAGE BRANCH, WHO PERFORM THE SAME TYPE OF WORK AS THE UNGRADED
EMPLOYEES IN THE STORAGE BRANCH. THESE EQUIPMENT SPECIALISTS ARE
SUPERVISED BY A WAGE BOARD SUPERVISOR.
THE RECORD ESTABLISHES THAT THE UNGRADED EMPLOYEES IN THE LABOR AND
EQUIPMENT BRANCH WORK WITH ALL OF THE VARIOUS DEPARTMENTS ON THE BASE
AND ON OCCASION ARE ASSIGNED TO GRADED JOBS WHERE BACKLOGS EXIST.
FURTHER, IN THE SHIP STORES BRANCH, THERE ARE EMPLOYEES, BOTH GRADED AND
UNGRADED, WHO WORK /6/ TOGETHER. ALSO, A GRADED SUPERVISOR SUPERVISES
UNGRADED EMPLOYEES IN THE HOLDING ROOM WHERE IF ORDERS CANNOT BE FILLED,
THEY ARE HELD UNTIL THEY ARE FILLED.
WITH RESPECT TO WORKING CONDITIONS IN THE SUPPLY DEPARTMENT, AT LEAST
HALF OF THE 39 WAREHOUSES IN THE SUPPLY DEPARTMENT ARE NOT HEATED, AND
THIS PRIMARILY AFFECTS WAGE BOARD EMPLOYEES ALTHOUGH GRADED EMPLOYEES
MIGHT WORK AS LONG AS THREE DAYS CONTINUOUSLY IN AN UNHEATED WAREHOUSE.
TOILET FACILITIES ARE NOT AVAILABLE IN ALL OF THE 39 WAREHOUSES AND ON
OCCASION EMPLOYEES HAVE TO GO AS FAR AS ONE HUNDRED YARDS TO GET TO
TOILET FACILITIES. IF THE WEATHER IS BAD, THIS WOULD NECESSITATE GOING
THROUGH RAIN OR SNOW TO GET TO THESE FACILITIES. THERE ARE THREE
CAFETERIAS ON THE BASE, AND IN THIS REGARD, THE RECORD REVEALED THAT
BOTH WAGE BOARD AND GRADED EMPLOYEES OFTEN EXPERIENCE DIFFICULTY IN
OBTAINING HOT MEALS WITHIN THE LIMITS OF THEIR LUNCH PERIODS. VARIOUS
UNGRADED EMPLOYEES GET DIRTY OR HAZARDOUS PAY IF THEY ARE WORKING JOBS
OR AREAS WHERE THIS PAY IS GIVEN. ALSO, SOME UNGRADED EMPLOYEES WORK IN
BUILDINGS WHERE THE DOORS ARE OPEN FOR VENTILATION PURPOSES, AND WHEN IT
SNOWS OR RAINS, THE SNOW OR RAIN COMES IN THROUGH THE DOORWAYS.
WITH REGARD TO LABOR RELATIONS PRACTICE IN THE SUPPLY DEPARTMENT,
MONTHLY MEETINGS ARE HELD BETWEEN MANAGEMENT AND THE UNION AND SUCH
ITEMS AS PERSONNEL MATTERS, OVERTIME, COMPLAINTS, WORKING CONDITIONS AND
PROMOTION POLICIES ARE DISCUSSED. ABOUT 99 PERCENT OF THE COMPLAINTS
REGISTERED HAVE BEEN CONCERNED WITH UNGRADED EMPLOYEES. THE RECORD
REVEALS THAT THE DEPARTMENT HAS AN "OPEN DOOR" POLICY, AND THE UNION CAN
BRING MATTERS TO THE ATTENTION OF TOP MANAGEMENT OF THE DEPARTMENT IN
THE EVENT MATTERS ARE NOT RESOLVED AT A LOWER LEVEL.
AFGE SPECIFICALLY PROPOSES TO EXCLUDE FOUR WAGE BOARD EMPLOYEES FROM
ITS PROPOSED UNIT. TWO OF THESE EMPLOYEES, A MULTILITH OPERATOR AND A
FILM STRIPPER, ARE EMPLOYED IN THE ADMINISTRATION AND COMPTROLLER
OFFICE. THE OPERATIONS BRANCH OF THE FACILITIES SYSTEM OFFICE (FASCO)
AND THE SECURITY DEPARTMENT EMPLOY THE OTHER TWO EMPLOYEES WHO ARE
CLASSIFIED AS WAREHOUSEMEN.
THE TWO WAGE BOARD EMPLOYEES IN THE ADMINISTRATION AND COMPTROLLER
OFFICE WORK IN THE OFFICE SERVICES DIVISION. IN ADDITION TO THESE WAGE
BOARD EMPLOYEES, THERE ARE EIGHT GRADED EMPLOYEES IN THIS DIVISION. THE
MULTILITH OPERATOR WORKS PRIMARILY IN THE MULTILITH ROOM, BUT DELIVERS
COMPLETED WORK ASSIGNMENTS TO THE MAIL ROOM AND PICKS UP WORK UPON
REQUEST. THE FILM STRIP ASSEMBLER WORKS PRIMARILY IN THE ROOM WHERE HIS
CAMERA AND OTHER EQUIPMENT IS LOCATED. THE FILM STRIP ASSEMBLER ALSO
OPERATES THE MULTILITH MACHINE WHEN IT IS REQUIRED BY THE WORKLOAD. A
GRADED CLERK WORKS WITH THE MULTILITH OPERATOR AND THE FILM STRIP
ASSEMBLER. THIS CLERK RECEIVES WORK TO BE DONE AND ASSIGNS IT ON A
PRIORITY BASIS TO THESE TWO WAGE BOARD EMPLOYEES. IN ADDITION, THE
CLERK OPERATES THE DUPLICATING AND COLLATING MACHINES AND KEEPS RECORDS.
ON OCCASION, WHERE THERE IS A HEAVY WORKLOAD OR ABSENTEEISM, SHE
OPERATES BOTH THE MULTILITH AND BLUEPRINT MACHINES. ON THE OTHER HAND,
WHEN SHE IS ABSENT FROM WORK, THE TWO WAGE BOARD EMPLOYEES SHARE HER
DUTIES INSOFAR AS POSSIBLE.
THE WAGE BOARD WAREHOUSEMAN IN THE OPERATIONS BRANCH OF FACSO WORKS
WITH 20 GRADED EMPLOYEES. HE IS RESPONSIBLE FOR MOVING STOCK INTO THE
STOCKROOM AND SUPPLYING THE COMPUTER AND KEY PUNCH OPERATORS WITH
SUPPLIES. HE ALSO MAINTAINS THE STOCKROOM INCLUDING RECORDS, AND
OPERATES THE BURSTING AND DECOLLATING MACHINERY IN THE PREPARATION OF
OUTPUT PRINT REPORTS. HE SPENDS ABOUT 40 PERCENT OF HIS TIME IN THE
SUPPLY ROOM, ABOUT 40 PERCENT OF HIS TIME WITH THE COMPUTER OPERATORS,
AND THE BALANCE OF HIS TIME IS SPENT GOING BETWEEN THE TWO AREAS. IN
THE ABSENCE OF THE WAREHOUSEMAN, GRADED EMPLOYEES PERFORM HIS WORK AND
THE WAREHOUSEMAN HAS THE SAME HOURS AND BENEFITS AS THE GRADED
EMPLOYEES.
THE OTHER WAREHOUSEMAN WHOM THE PETITIONER SEEKS TO EXCLUDE WORKS IN
THE SECURITY DEPARTMENT. THE RECORD ESTABLISHES THAT HE WORKS FOR THE
BARRACKS ADMINISTRATOR AND HAS CHARGE OF THE MATERIAL FOR THE BARRACKS.
WITH RESPECT TO OVERALL WORKING CONDITIONS AT THE ACTIVITY THE RECORD
REVEALS THAT THE HOURS OF WORK ARE THE SAME FOR GRADED AND WAGE BOARD
EMPLOYEES. SNACK BAR OR CAFETERIA FACILITIES ARE AVAILABLE TO BOTH
GRADED AND WAGE BOARD EMPLOYEES, AS ARE RESTROOM FACILITIES. ALL
FACILITIES OR PRIVILEGES ACCORDED TO GRADED EMPLOYEES ARE ACCORDED TO
WAGE BOARD EMPLOYEES. THE ACTIVITY HAS A MERIT PROMOTION PROGRAM WHICH
APPLIES TO BOTH GRADED AND WAGE BOARD EMPLOYEES, AND THE SAME CRITERIA
IS USED IN GRANTING MERIT PROMOTIONS TO BOTH CLASSES OF EMPLOYEES. THE
ACTIVITY HAS A PERFORMANCE RATING SYSTEM IN WHICH A SUPERVISOR RATES
EMPLOYEES, AND THE NEXT HIGHER SUPERVISOR REVIEWS THE RATING AND A
RATING IS GIVEN. IF AN EMPLOYEE IS NOT SATISFIED WITH HIS RATING HE CAN
APPEAL TO A PERFORMANCE RATING BOARD WHOSE MEMBERS ARE APPOINTED BY THE
COMMANDING OFFICER OF THE BASE. THE MEMBERS OF THE BOARD WHO ARE GRADED
AND WAGE BOARD EMPLOYEES PASS JUDGMENT ON BOTH GRADED AND WAGE BOARD
EMPLOYEES. THE RECORD SHOWS THAT IN TWO REDUCTIONS IN FORCE, ONE ON
DECEMBER 18, 1969, AND ONE ON JUNE 17, 1970, THERE WERE SOME 15
TRANSFERS FROM GRADED TO WAGE BOARD POSITIONS, AND FROM WAGE BOARD TO
GRADED POSITIONS. BOTH GROUPS ARE PAID BY CHECK, THE GRADED EMPLOYEES
EVERY OTHER THURSDAY, AND THE WAGE BOARD EMPLOYEES EVERY OTHER FRIDAY.
WAGE BOARD EMPLOYEES AND GRADED EMPLOYEES UP TO A CERTAIN GRADE PUNCH A
TIME CLOCK.
THE EVIDENCE ALSO ESTABLISHES THAT THE LAST NEGOTIATED AGREEMENT
BETWEEN THE ACTIVITY AND THE NAGE WAS SIGNED ON BEHALF OF THE NAGE BY
SIX EMPLOYEES; THREE WAGE BOARD EMPLOYEES AND THREE GRADED EMPLOYEES.
AN EXTENSION OF THIS AGREEMENT WAS SIGNED BY THE LOCAL PRESIDENT OF THE
NAGE, A WAGE BOARD EMPLOYEE. IN REGARD TO THE CURRENT OFFICERS OF THE
NAGE AT THE ACTIVITY, THERE ARE THREE GRADED AND FIVE WAGE BOARD
EMPLOYEES. ALSO, AT THE ACTIVITY, THERE ARE FOUR REGIONAL DIRECTORS OF
THE NAGE, TWO FROM EACH GROUP; AND ON THE BOARD OF DIRECTORS, THERE ARE
FIVE GRADED EMPLOYEES AND ONE WAGE BOARD EMPLOYEE. THERE ARE THREE
GRADED AND EIGHT WAGE BOARD STEWARDS IN THE SUPPLY DEPARTMENT AND ALL
EIGHT STEWARDS IN CED AND WAGE BOARD EMPLOYEES. IN THE SEVEN YEAR
PERIOD THAT THE NAGE HAS REPRESENTED THE EMPLOYEES, APPROXIMATELY 25
GRIEVANCES REACHED THE HEARING STAGE, AND OF THIS NUMBER APPROXIMATELY
15 INVOLVED WAGE BOARD EMPLOYEES. THE RECORD SHOWS THAT IF PROBLEMS ARE
NOT RESOLVED AT THE LOWEST POSSIBLE LEVEL (AS MOST OF THEM ARE), THEY
ARE TAKEN TO THE DIVISION HEAD; FROM THE DIVISION HEAD THEY ARE TAKEN
TO THE BOARD OF DIRECTORS; FROM THERE TO THE COMMANDING OFFICER AND
THEN ON TO EITHER THE CIVIL SERVICE COMMISSION OR THE SECRETARY OF THE
NAVY, ACCORDING TO THE AGREEMENT.
BASED ON THE FOREGOING, I FIND THE EMPLOYEES IN THE UNIT SOUGHT BY
THE PETITIONER DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST THAT WOULD ENTITLE THEM TO SEPARATE REPRESENTATION.
IN REACHING THIS CONCLUSION I HAVE TAKEN INTO CONSIDERATION THE FACT
THAT WHERE, AS HERE, A PETITIONER IS SEEKING TO SEVER A GROUP OF
EMPLOYEES FROM AN ESTABLISHED, REPRESENTED UNIT THERE ARE VARIOUS
INTERESTS WHICH ARE AFFECTED AND MUST BE TAKEN INTO ACCOUNT. THESE
INCLUDE THE EFFECT SEVERANCE WOULD HAVE ON THE EFFECTIVENESS OF EMPLOYEE
REPRESENTATION; THE PAST HISTORY OF BARGAINING; THE STABILITY OF LABOR
RELATIONS AS RELATED TO EFFECTIVE DEALINGS AND THE EFFICIENCY OF AGENCY
OPERATIONS; THE APPROPRIATENESS AND DISTINCTNESS OF UNITS; AND THE
OVERALL COMMUNITY OF INTEREST OF THE EMPLOYEES INVOLVED.
IN THE SUBJECT CASE THE NAGE HAS REPRESENTED THE GRADED AND THE WAGE
BOARD EMPLOYEES AT THE ACTIVITY FOR APPROXIMATELY SEVEN YEARS. THE
RECORD INDICATES WAGE BOARD EMPLOYEES PLAY A PROMINENT ROLE IN THE
ADMINISTRATION OF THE NAGE AND THERE IS NO INDICATION THAT THE AFGE IS
EITHER MORE OR LESS QUALIFIED THAN THE NAGE TO REPRESENT THE EMPLOYEES
IN THE PROPOSED UNIT. AT BEST, IT WOULD BE SPECULATIVE AS TO HOW THE
AFGE WOULD REPRESENT THE EMPLOYEES IN THE PROPOSED UNIT WHEREAS THE
RECORD SHOWS THAT THE MANNER IN WHICH THE NAGE HAS REPRESENTED EMPLOYEES
ON AN ACTIVITY-WIDE BASIS FOR SEVEN YEARS HAS RESULTED IN STABLE LABOR
RELATIONS AT THE ACTIVITY. IN THESE CIRCUMSTANCES, THE INTRODUCTION OF
AN ADDITIONAL AGREEMENT, WOULD, IN MY VIEW, TEND TO PROMOTE NEITHER
EFFECTIVE DEALINGS NOR EFFICIENCY OF AGENCY OPERATIONS.
FURTHER, I DO NOT AGREE WITH THE PETITIONER'S CLAIM THAT THE UNIT IT
SEEKS TO REPRESENT WILL INSURE A CLEAR IDENTIFIABLE COMMUNITY OF
INTEREST AMONG THE EMPLOYEES CONCERNED. THE PETITIONER IS SEEKING TO
SPECIFICALLY EXCLUDE SOME OF THE WAGE BOARD EMPLOYEES WHILE OTHERWISE
SEEKING TO INCLUDE ALL THE WAGE BOARD EMPLOYEES. FURTHER, THE
PETITIONER IS NOT SEEKING A DISTINCT, HOMOGENEOUS GROUP OF CRAFTSMEN OR
EMPLOYEES, BUT INSTEAD AS THE RECORD REVEALS, IS SEEKING A GROUP
POSSESSING VARYING DEGREES OF ASSORTED SKILLS. THERE IS NO EVIDENCE OF
UNIFORM SEPARATE SUPERVISION, AND IN FACT, SOME WAGE BOARD EMPLOYEES
WORK DIRECTLY UNDER THE SUPERVISION OF GRADED SUPERVISORS AND SOME
GRADED EMPLOYEES WORK DIRECTLY UNDER THE SUPERVISION OF WAGE BOARD
SUPERVISORS. IN SOME CASES, GRADED AND WAGE BOARD EMPLOYEES WORK SIDE
BY SIDE DOING THE SAME TYPE OF WORK AND IN CASES OF TEMPORARY ABSENCES
OR WORKLOAD, GRADED EMPLOYEES DO THE WORK OF WAGE BOARD EMPLOYEES, OR
VICE-VERSA. FURTHER, GRADED AND WAGE BOARD EMPLOYEES SHARE THE SAME
WORKING AREAS IN SOME INSTANCES, AND THE RECORD GIVES NUMEROUS EXAMPLES
OF NECESSARY DAY-TO-DAY CONTACT BETWEEN GRADED AND WAGE BOARD EMPLOYEES.
VARIOUS FACILITIES ON THE BASE ARE USED IN AN EQUAL MANNER BY GRADED
AND WAGE BOARD EMPLOYEES. MOREOVER, WAGE BOARD AND GRADED EMPLOYEES
HAVE TRANSFERRED CATEGORIES WHEN REDUCTIONS IN FORCE HAVE OCCURRED, AND
THERE HAVE BEEN ASSIGNMENTS FROM ONE GROUP TO THE OTHER IN ORDER TO
MAINTAIN THE EFFICIENCY OF THE ACTIVITY.
IN SUM, THERE ARE A NUMBER OF PERTINENT FACTORS PRESENT IN THIS CASE
WHICH SUPPORT A FINDING THAT AN ACTIVITY-WIDE UNIT OF WAGE BOARD AND
GRADED EMPLOYEES IS APPROPRIATE. THESE INCLUDE THE FACT THAT ALL
EMPLOYEES HAVE THE SAME BENEFITS AND HOURS, AND THAT THERE IS EMPLOYEE
INTERCHANGE AND TRANSFER WITHIN THE UNIT, COMMON LABOR POLICIES,
INTEGRATED OPERATIONS, BARGAINING HISTORY, AND CENTRALIZED
ADMINISTRATION.
IN REACHING A DECISION IN A PROPOSED SEVERANCE CASE AS THIS, A
DETERMINATION MUST BE MADE AS TO WHETHER THE BENEFITS THAT MIGHT
REASONABLY ACCRUE TO THE EMPLOYEES BEING SOUGHT FOR SEVERANCE EXCEED THE
BENEFITS TO BE DERIVED FROM MAINTAINING AN EXISTING RELATIONSHIP. THE
RELEVANT FACTORS IN THIS CASE CITED ABOVE CONVINCE ME THAT THE
ADVANTAGES OF CONTINUING THE EXISTING BARGAINING RELATIONSHIP AT THE
ACTIVITY EXCEED THE POSSIBLE CONSEQUENCES OF SEPARATE REPRESENTATION FOR
THE EMPLOYEES SOUGHT BY THE PETITIONER. HERE THE EVIDENCE SHOWS THAT
THE NAGE HAS REPRESENTED ALL THE EMPLOYEES FOR THE PAST SEVEN YEARS, AND
ITS RELATIONSHIP WITH THE ACTIVITY HAS RESULTED IN STABLE LABOR
RELATIONS AT THE BASE. IN TURN, AS SHOWN BY THE RECORD, THIS
RELATIONSHIP APPEARS TO HAVE PROMOTED EFFECTIVE DEALINGS AND EFFICIENCY
OF AGENCY OPERATIONS. THE BENEFITS AND LABOR POLICIES WHICH HAVE BEEN
MADE APPLICABLE TO ALL EMPLOYEES REVEAL THAT THE INTERESTS OF THE WAGE
BOARD EMPLOYEES HAVE NOT BEEN NEGLECTED. FINALLY, AS PREVIOUSLY FOUND,
THE EMPLOYEES SOUGHT BY THE PETITIONER DO NOT HAVE A SEPARATE COMMUNITY
OF INTEREST.
ALTHOUGH EACH CASE CAN BE EXPECTED TO HAVE ITS INDIVIDUAL
DIFFERENCES, THE GENERAL THEORY OF A SEVERANCE CASE REMAINS THE SAME.
THEREFORE, FOR FUTURE GUIDANCE, I CONCLUDE IT WILL BEST EFFECTUATE THE
POLICIES OF THE EXECUTIVE ORDER THAT WHERE THE EVIDENCE SHOWS THAT AN
ESTABLISHED, EFFECTIVE AND FAIR COLLECTIVE BARGAINING RELATIONSHIP IS IN
EXISTENCE, A SEPARATE UNIT CARVED OUT OF THE EXISTING UNIT WILL NOT BE
FOUND TO BE APPROPRIATE /7/ EXCEPT IN UNUSUAL CIRCUMSTANCES.
AS THERE ARE NO UNUSUAL CIRCUMSTANCES PRESENT WHICH PRECLUDE APPLYING
THE CRITERIA SET FORTH ABOVE TO THE FACTS OF THIS CASE, I FIND THE
INTERESTS OF ALL EMPLOYEES AND THE AGENCY WOULD BE BETTER SERVED BY
CONTINUING THE EXISTING BARGAINING RELATIONSHIP. ACCORDINGLY, I FIND
THE UNIT SOUGHT BY THE PETITIONER IS INAPPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION, AND SHALL, THEREFORE, DISMISS THE PETITION.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 31-3246 E.O. BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 15, 1971
/1/ THE ACTIVITY'S NAME APPEARS IN THE CASE CAPTION AS AMENDED AT THE
HEARING.
/2/ THE INTERVENOR, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R1-14, HEREIN CALLED NAGE, FILED AN UNTIMELY BRIEF WHICH HAS NOT
BEEN CONSIDERED.
/3/ SOMETIME IN 1962 OR 1963, AN ELECTION WAS HELD ON AN
ACTIVITY-WIDE BASIS THAT INCLUDED BOTH GRADED AND UNGRADED EMPLOYEES.
BOTH THE NAGE AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, HEREIN ALSO REFERRED TO AS AFGE, WERE ON THE BALLOT WITH THE
NAGE WINNING THE ELECTION. AFTER THIS ELECTION, AN AGREEMENT WAS
SIGNED, AND THEREAFTER UNTIL FEBRUARY 7, 1970, THE ACTIVITY AND THE NAGE
WERE BOUND CONTRACTUALLY. DURING THIS PERIOD, ONCE PRIOR TO THE
RENEGOTIATION OF THE SECOND CONTRACT, AND AGAIN IN 1968, THE AFGE
CHALLENGED THE EXCLUSIVE REPRESENTATIVE STATUS OF THE NAGE, BUT NO
ELECTION RESULTED IN EITHER INSTANCE AS THE AFGE WAS UNABLE TO ESTABLISH
A SUFFICIENT SHOWING OF INTEREST.
/4/ GENERAL SCHEDULE EMPLOYEES ARE REFERRED TO AS GRADED, GS OR WHITE
COLLAR EMPLOYEES, AND WAGE BOARD EMPLOYEES ARE REFERRED TO AS WAGE
GRADE, UNGRADED OR BLUE COLLAR EMPLOYEES.
/5/ THE AGREEMENT BETWEEN THE NAGE AND THE ACTIVITY COVERED, AMONG
OTHER THINGS, SAFETY EQUIPMENT.
/6/ FOR EXAMPLE, UNGRADED MECHANICS OBTAIN REPAIR PARTS FROM GRADED
COUNTERMEN.
/7/ AS TO UNITS WHICH HAVE NO PRIOR HISTORY OF BARGAINING, THEY WILL
BE DECIDED ON A CASE-BY-CASE BASIS CONSISTENT WITH THE REQUIREMENTS OF
SECTION 10 OF THE EXECUTIVE ORDER.
1 A/SLMR 7; P. 58; CASE NO. 40-1953(RO); JANUARY 15, 1971.
UNITED STATES ARMY CORPS OF ENGINEERS, MOBILE DISTRICT
A/SLMR NO. 7
THE SUBJECT CASE INVOLVING A REPRESENTATION PETITION FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2257 (AFGE)
SEEKING AN ELECTION AMONG THE EMPLOYEES OF THE MILLERS FERRY POWERHOUSE
PRESENTED THE FOLLOWING QUESTIONS:
(1) WHETHER THE AGREEMENT BETWEEN THE ACTIVITY AND THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 561 (NFFE) WOULD ACT AS A BAR TO
AN ELECTION?
(2) WHETHER THE UNIT SOUGHT BY AFGE COVERING THE EMPLOYEES OF THE
MILLERS FERRY POWERHOUSE, WHICH IS ONE OF 5 POWERHOUSES IN THE
ACTIVITY'S MOBILE DISTRICT, WAS APPROPRIATE?
WITH RESPECT TO THE FIRST ISSUE, THE ASSISTANT SECRETARY NOTED THAT
THE POWERHOUSE IN QUESTION WAS NOT IN OPERATION AT THE TIME THE
AGREEMENT BETWEEN THE ACTIVITY AND THE NFFE WAS ENTERED INTO; THAT
AFTER THE MILLERS FERRY POWERHOUSE BECAME OPERATIONAL THE AGREEMENT WAS
NOT APPLIED TO ITS EMPLOYEES; AND FINALLY, THAT THE EVIDENCE DID NOT
ESTABLISH THAT MILLERS FERRY POWERHOUSE CONSTITUTED AN ADDITION OR
ACCRETION TO THE NFFE'S PREVIOUSLY RECOGNIZED UNIT. BASED ON THE
FOREGOING CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
AGREEMENT IN QUESTION WAS NOT A BAR TO THE HOLDING OF AN ELECTION AS HAD
BEEN CONTENDED BY THE ACTIVITY AND THE NFFE.
THE ASSISTANT SECRETARY ALSO FOUND THAT MILLERS FERRY POWERHOUSE
CONSTITUTED AN APPROPRIATE UNIT. HE VIEWED AS PARTICULARLY RELEVANT THE
LACK OF INTERCHANGE BETWEEN THESE EMPLOYEES AND THE EMPLOYEES OF THE
OTHER POWERHOUSES WITHIN THE MOBILE DISTRICT. CONTRARY TO THE
CONTENTION OF THE ACTIVITY AND THE NFFE, THE ASSISTANT SECRETARY WAS OF
THE VIEW THAT THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH THAT
"EFFECTIVE DEALINGS" AND "EFFICIENCY OF AGENCY OPERATIONS" WOULD NOT BE
PROMOTED BY THE ESTABLISHMENT OF A POWERHOUSE UNIT AT MILLERS FERRY
POWERHOUSE. IN THIS REGARD, HE NOTED THAT THE ACTIVITY HAD IN THE PAST
GRANTED EXCLUSIVE RECOGNITION COVERING POWERHOUSE FACILITIES IN THE
MOBILE DISTRICT ON LESS THAN A DISTRICT-WIDE BASIS TO BOTH THE AFGE AND
THE NFFE AND THAT THERE WAS NO EVIDENCE THAT SUCH BARGAINING
RELATIONSHIPS IN ANY WAY PRECLUDED EFFECTIVE DEALINGS BETWEEN THE
PARTIES OR HAMPERED THE EFFICIENCY OF AGENCY OPERATIONS.
UNITED STATES ARMY CORPS OF ENGINEERS,
MOBILE /1/ DISTRICT
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO /2/ , LOCAL 2257
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 561
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER SEYMOUR X. ALSHER. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2257,
HEREIN CALLED THE PETITIONER, SEEKS AN ELECTION IN A UNIT OF ALL
EMPLOYEES EMPLOYED AT MILLERS FERRY POWERHOUSE, CAMDEN, ALABAMA,
EXCLUDING PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY /3/ AND GUARDS.
THE ACTIVITY AND THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
561, HEREIN CALLED THE INTERVENOR, CONTEND THAT THE EMPLOYEES BEING
SOUGHT ARE COVERED BY A SIGNED AGREEMENT AND THAT, THE PETITION FILED BY
PETITIONER IS UNTIMELY SINCE IT WAS FILED MORE THAN 90 DAYS PRIOR TO THE
TERMINAL DATE OF THE AGREEMENT. THE ACTIVITY FURTHER CONTENDS THAT THE
UNIT SOUGHT IS INAPPROPRIATE SINCE, IN ITS VIEW, THE APPROPRIATE UNIT
CONSISTS OF ALL POWER PROJECTS OF THE MOBILE DISTRICT. THE INTERVENOR
CONTENDS THAT THE EMPLOYEES PROPERLY SHOULD BE INCLUDED IN THE MORE
COMPREHENSIVE UNIT IT REPRESENTS CURRENTLY.
THE MOBILE DISTRICT OF THE ACTIVITY IS COMPOSED OF 13 SEPARATE
DIVISIONS WITH APPROXIMATELY 37 PROJECT OFFICES OF WHICH 5 ARE
HYDRO-POWER /4/ PROJECTS. THE HEADQUARTERS OFFICE OF THE DISTRICT IS
LOCATED IN MOBILE, ALABAMA WITH PROJECT OFFICES IN ALABAMA, FLORIDA,
GEORGIA, KENTUCKY, MISSISSIPPI AND TENNESSEE. THESE PROJECTS VARY IN
SIZE FROM ONE EMPLOYEE AT SEVERAL LOCATIONS TO 700 AT THE LARGEST
FACILITY. THE HYDRO-POWER BRANCH DIVISION HAS UNDER ITS JURISDICTION
FIVE POWERHOUSE PROJECTS INCLUDING THE MILLERS FERRY POWERHOUSE.
WITH RESPECT TO THE BARGAINING HISTORY PRIOR TO THE FILING OF THE
PETITION, THE ACTIVITY ACCORDED EXCLUSIVE RECOGNITION TO THE PETITIONER
FOR ALL NONSUPERVISORY EMPLOYEES LOCATED IN THE JIM WOODRUFF, FLORIDA,
AND WALTER F.GEORGE, ALABAMA POWERHOUSES, AND THE JIM WOODRUFF,
COLUMBIA, AND WALTER F. GEORGE LOCKS ON THE CHATTAHOOCHEE RIVER. A
COLLECTIVE BARGAINING AGREEMENT COVERING THESE EMPLOYEES WAS EXECUTED ON
DECEMBER 9, 1964. THE ACTIVITY ALSO ACCORDED EXCLUSIVE RECOGNITION TO
THE INTERVENOR FOR ALL NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF THE
MOBILE DISTRICT EXCLUDING, AMONG OTHERS, THE EMPLOYEES OF THE
POWERHOUSES AND LOCKS COVERED BY THE AGREEMENT BETWEEN THE ACTIVITY AND
THE PETITIONER. AN AGREEMENT COVERING THESE EMPLOYEES WAS EXECUTED /5/
ON SEPTEMBER 10, 1968.
AS STATED ABOVE, THE ACTIVITY AND THE INTERVENOR CONTEND THAT THEIR
CURRENT AGREEMENT CONSTITUTES A BAR TO AN ELECTION. IN THIS REGARD, THE
EVIDENCE REVEALS THAT THE MILLERS FERRY POWERHOUSE WAS NOT IN OPERATION
AT THE TIME THE AGREEMENT BETWEEN THE ACTIVITY AND THE INTERVENOR WAS
EXECUTED AND THAT AFTER THE POWERHOUSE BECAME OPERATIONAL, THE AGREEMENT
WAS NOT APPLIED /6/ TO ITS EMPLOYEES. NOR DOES THE EVIDENCE ESTABLISH
THAT THE MILLERS FERRY POWERHOUSE WOULD CONSTITUTE AN ADDITION OR
ACCRETION TO THE INTERVENOR'S PREVIOUSLY RECOGNIZED UNIT. IT IS
SUPERVISED SEPARATELY BY ITS OWN SUPERINTENDENT AND, EXCEPT FOR SOME
MINIMAL TRANSFERRING OF EMPLOYEES WHEN THE POWERHOUSE BECAME
OPERATIONAL, THERE IS NO INTERCHANGE OF PERSONNEL AMONG THE POWERHOUSES
IN THE /7/ MOBILE DISTRICT. BASED ON THE FOREGOING, I FIND THAT THE
AGREEMENT BETWEEN THE ACTIVITY AND THE INTERVENOR DOES NOT BAR AN
ELECTION AMONG THE EMPLOYEES IN THE PETITIONED FOR UNIT.
THE MILLERS FERRY POWERHOUSE IS A MULTI-PURPOSE PROJECT DESIGNED
PRIMARILY FOR NAVIGATION AND POWER. ITS EMPLOYEES ARE RESPONSIBLE FOR
PROJECT MAINTENANCE WHICH INCLUDES PREVENTATIVE MAINTENANCE, MAJOR
OVERHAUL, AND MODIFICATION AND PROCUREMENT OF POWER FACILITIES. THESE
FOREGOING FUNCTIONS ARE ESSENTIALLY SIMILAR TO THOSE OF THE OTHER
POWERHOUSES WITHIN THE MOBILE DISTRICT. THE POWER PROJECT
SUPERINTENDENT AT THE MILLERS FERRY POWERHOUSE PLANS THE WORK OF THE
EMPLOYEES AND HAS AUTHORITY TO MAKE WORK ASSIGNMENTS, GRANT LEAVE, TRAIN
EMPLOYEES AND RESOLVE GRIEVANCES. THE MILLERS FERRY POWERHOUSE IS
SEPARATED GEOGRAPHICALLY FROM THE OTHER PROJECTS WITHIN THE DISTRICT AND
THERE IS NO INTERCHANGE AMONG THE EMPLOYEES OF THE VARIOUS POWERHOUSES.
IN THESE CIRCUMSTANCES AND NOTING PARTICULARLY THE GEOGRAPHIC SEPARATION
BETWEEN POWERHOUSE FACILITIES IN THE MOBILE DISTRICT, THE LACK OF
EMPLOYEES INTERCHANGE, AND THE SUBSTANTIAL DEGREE OF CONTROL OVER
EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT EXERCISED BY THE POWER
PROJECT SUPERINTENDENT, I FIND THAT THE MILLERS FERRY POWERHOUSE
EMPLOYEES HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST.
WITH RESPECT TO THE QUESTION WHETHER A UNIT LIMITED TO ONE POWERHOUSE
FACILITY WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS, IT IS NOTED THAT THE ACTIVITY HAS IN THE PAST GRANTED
EXCLUSIVE RECOGNITION FOR POWERHOUSE FACILITIES IN THE MOBILE DISTRICT
ON LESS THAN A DISTRICT-WIDE BASIS TO BOTH THE PETITIONER AND THE
INTERVENOR AND THERE IS NO INDICATION THAT SUCH BARGAINING RELATIONSHIPS
IN ANY WAY PRECLUDED EFFECTIVE DEALINGS BETWEEN THE PARTIES OR HAMPERED
THE EFFICIENCY OF AGENCY OPERATIONS.
I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491:
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, /8/ AFL-CIO, LOCAL 2257.
DATED, WASHINGTON, D.C.
JANUARY 15, 1971
/1/ THE NAMES OF THE AGENCY AND ACTIVITY APPEAR AS AMENDED AT THE
HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/4/ THE TERMS POWERHOUSES AND POWER PROJECTS ARE USED
INTERCHANGEABLY.
/5/ THIS AGREEMENT WAS AMENDED ON NOVEMBER 11, 1969, TO EXCLUDE
ADDITIONALLY THE COLUMBIA, BLACK WARRIOR AND TOMBIGBEE RESERVOIRS. BOTH
OF THE ABOVE-MENTIONED AGREEMENTS ARE IN EFFECT CURRENTLY.
/6/ IN SUPPORT OF ITS CONTENTION THAT THE EMPLOYEES EMPLOYED THE
MILLERS FERRY POWERHOUSE HAD KNOWLEDGE OF THE EXISTENCE OF THE
INTERVENOR'S COLLECTIVE BARGAINING AGREEMENT WHICH IT ASSERTS COVERS
SUCH EMPLOYEES, THE INTERVENOR ATTACHED TO ITS BRIEF IN THE SUBJECT CASE
COPIES OF LETTERS ALLEGED TO HAVE BEEN MAILED TO SEVERAL OF THE
EMPLOYEES EMPLOYED IN THE MILLERS FERRY POWERHOUSE. THESE LETTERS WERE
NOT INTRODUCED INTO EVIDENCE AT THE HEARING, NOR IS THERE ANY EVIDENCE
OF RECEIPT OF SUCH LETTERS BY THE EMPLOYEES TO WHOM THEY WERE ADDRESSED.
NO MOTION WAS MADE TO REOPEN THE RECORD TO INCLUDE COPIES OF THESE
LETTERS. IN ANY EVENT, THE LETTERS CONTAIN NO REFERENCE TO ANY
COLLECTIVE BARGAINING AGREEMENT WHICH MIGHT BE CONSTRUED TO COVER THE
MILLERS FERRY POWERHOUSE EMPLOYEES.
/7/ THE MAJORITY OF THE EMPLOYEES HIRED AT THE MILLERS FERRY
POWERHOUSE WERE HIRED FROM OUTSIDE THE CORPS OF ENGINEERS.
/8/ IN ALL THE CIRCUMSTANCES, INCLUDING THE ABOVE FINDING THAT THE
AGREEMENT BETWEEN THE ACTIVITY AND THE INTERVENOR DOES NOT BAR AN
ELECTION IN THE PETITIONED FOR UNIT, THE FACT THAT THE INTERVENOR DID
NOT SUBMIT TO THE AREA ADMINISTRATOR UNION AUTHORIZATION CARDS OR A
MEMBERSHIP LIST IN SUPPORT OF ITS INTERVENTION, AND THE FACT THAT THE
RECORD REVEALS THAT THE INTERVENOR REPRESENTS ONLY ONE EMPLOYEE IN THE
PETITIONED FOR UNIT, THE PLACEMENT OF THE INTERVENOR'S NAME ON THE
BALLOT IS NOT WARRANTED.
1 A/SLMR 6; P. 54; CASE NO. 70-1512(RO) /1/ ; JANUARY 15, 1971.
DEPARTMENT OF THE NAVY,
NAVAL AIR STATION, ALAMEDA, CALIFORNIA
A/SLMR NO.6
THE SUBJECT CASE INVOLVING REPRESENTATION PETITIONS FILED BY TWO
LABOR ORGANIZATIONS, UNITED ASSOCIATION OF PLUMBERS AND GAS FITTERS,
AFL-CIO, LOCAL NO. 444 (PLUMBERS) AND INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LODGE 739, (IAM) PRESENTED
THE QUESTION WHETHER A UNIT CONSISTING OF PLUMBERS, PIPEFITTERS AND
RELATED CLASSIFICATIONS WORKING IN THE ACTIVITY'S MAINTENANCE DIVISION
(PLUMBERS) OR A RESIDUAL BASE-WIDE BLUE COLLAR UNIT (IAM) WAS
APPROPRIATE.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT BOTH
PETITIONED FOR UNITS MAY BE APPROPRIATE AND ACCORDINGLY, HE DIRECTED
THAT A SELF-DETERMINATION ELECTION BE HELD. HE PROVIDED THAT IF A
MAJORITY OF THE EMPLOYEES PETITIONED FOR BY THE PLUMBERS SELECT THAT
LABOR ORGANIZATION, A SEPARATE UNIT WOULD BE APPROPRIATE AND THAT A
RESIDUAL BASE-WIDE BLUE COLLAR UNIT, EXCLUDING PLUMBERS, PIPEFITTERS AND
RELATED CLASSIFICATIONS ALSO WOULD BE APPROPRIATE. IF, HOWEVER, A
MAJORITY OF THE EMPLOYEES PETITIONED FOR BY THE PLUMBERS DID NOT SELECT
THAT LABOR ORGANIZATION, THEIR VOTES WOULD BE POOLED WITH THE BALLOTS OF
THE EMPLOYEES VOTING IN THE RESIDUAL BASE-WIDE ELECTION AND A RESIDUAL
BASE-WIDE BLUE COLLAR UNIT WOULD BE APPROPRIATE.
WITH RESPECT TO THE APPROPRIATENESS OF THE RESIDUAL BASE-WIDE UNIT,
THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THIS PROPOSED UNIT
WORKED GENERALLY UNDER UNIFORM TERMS AND CONDITIONS OF EMPLOYMENT.
MOREOVER, IT WAS NOTED THAT THESE EMPLOYEES INCLUDED ALL OF THE
REMAINING UNREPRESENTED BLUE COLLAR EMPLOYEES AT THE ACTIVITY. IN
DETERMINING THAT A UNIT OF PLUMBERS, PIPEFITTERS AND RELATED
CLASSIFICATIONS, INCLUDING INSULATORS AND REFRIGERATION AND AIR
CONDITIONING MECHANICS, ALSO MAY BE APPROPRIATE, THE ASSISTANT SECRETARY
RELIED ON THE FACT THAT MOST OF THE TIME PLUMBERS, PIPEFITTERS AND
RELATED CLASSIFICATIONS AT THE ACTIVITY WORKED IN TWO CLOSELY RELATED
SHOPS IN THE SAME BUILDING AND WERE SUPERVISED BY PIPEFITTER FOREMEN.
ADDITIONALLY HE NOTED PARTICULARLY THAT SECTION 10(B) OF EXECUTIVE ORDER
11491 PROVIDES, IN PART, THAT A UNIT MAY BE ESTABLISHED ON A CRAFT
BASIS.
THE ASSISTANT SECRETARY ALSO WAS OF THE VIEW THAT THE EVIDENCE WAS
INSUFFICIENT TO ESTABLISH THAT A UNIT LIMITED TO PLUMBERS, PIPEFITTERS
AND RELATED CLASSIFICATIONS WOULD NOT HAVE THE EFFECT OF PROMOTING
EFFECTIVE DEALINGS AND THE EFFICIENCY OF AGENCY OPERATIONS WITHIN THE
MEANING OF SECTION 10(B) OF THE EXECUTIVE ORDER. IN THIS REGARD, HE
NOTED THAT THERE WAS A HISTORY OF RECOGNITION OF LABOR ORGANIZATIONS BY
THE ACTIVITY IN SEPARATE UNITS, INCLUDING CRAFT UNITS, AND THERE WAS NO
EVIDENCE THAT SUCH RELATIONSHIPS FAILED TO PROMOTE EFFECTIVE DEALINGS
AND THE EFFICIENCY OF AGENCY OPERATIONS.
DEPARTMENT OF THE NAVY, ALAMEDA NAVAL AIR STATION
AND
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO, LODGE 739
AND
UNITED ASSOCIATION OF PLUMBERS AND
GAS FITTERS, AFL-CIO, LOCAL 444
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
HEARING WAS HELD BEFORE HEARING OFFICER HENRY C. LEE. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE ACTIVITY AND PETITIONER, UNITED ASSOCIATION OF PLUMBERS AND GAS
FITTERS, AFL-CIO, LOCAL 444, HEREIN CALLED PLUMBERS, /2/ THE ASSISTANT
SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. PETITIONER, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, LODGE 739, HEREIN CALLED IAM, SEEKS AN ELECTION IN A
UNIT OF ALL UNGRADED NONSUPERVISORY EMPLOYEES WORKING IN SUPPLY, PUBLIC
WORKS, AIR OPERATIONS AND OTHERS UNDER THE ACTIVITY COMMAND BUT
EXCLUDING ALL EMPLOYEES WHO ARE GRADED, TEMPORARY LIMITED, MANAGERIAL,
SUPERVISORS, GUARDS, AND THOSE ALREADY COVERED BY EXCLUSIVE RECOGNITION.
THE PLUMBERS SEEK AN ELECTION IN A UNIT OF ALL UNGRADED EMPLOYEES AT
THE ACTIVITY IN THE FOLLOWING CLASSIFICATIONS INCLUDING /3/ APPRENTICES:
PLUMBER, PLUMBER HELPER, PIPEFITTER, PIPEFITTER HELPER, REFRIGERATION
AND AIR CONDITIONING MECHANIC, REFRIGERATION AND AIR CONDITIONING
MECHANIC HELPER, INSULATOR AND INSULATOR HELPER IN THE MAINTENANCE
DIVISION OF THE PUBLIC WORKS DEPARTMENT, BUT EXCLUDING ALL MANAGEMENT
OFFICIALS, SUPERVISORS, GUARDS, AND EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.
THE ACTIVITY CONTENDS THAT THE UNIT DESCRIBED IN THE IAM PETITION IS
APPROPRIATE WITHIN THE MEANING OF SECTION 10(B) OF EXECUTIVE ORDER
11491. ON THE OTHER HAND, IT CONTENDS THAT THE UNIT DESCRIBED IN THE
PLUMBERS' PETITION IS NOT APPROPRIATE BECAUSE IT DOES NOT CONSIST OF
EMPLOYEES WITH A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND IT
FURTHER ASSERTS THAT SUCH A UNIT WOULD NEITHER PROMOTE EFFECTIVE
DEALINGS NOR EFFICIENCY OF AGENCY OPERATIONS.
THERE IS NO HISTORY OF BARGAINING WITH RESPECT TO THE EMPLOYEES
COVERED BY THE PETITIONS IN THE INSTANT CASE. HOWEVER, THE ACTIVITY
PREVIOUSLY ACCORDED EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 10988 TO
CERTAIN LABOR ORGANIZATIONS, INCLUDING THE IAM, IN SIX SEPARATE UNITS.
TWO OF THESE UNITS ARE LOCATED IN THE MAINTENANCE DIVISION OF THE PUBLIC
WORKS DEPARTMENT /4/ WHICH PERFORMS THE MAINTENANCE FOR ALL BUILDINGS
AND PUBLIC UTILITIES /5/ WITHIN THE AIR STATION.
THE EMPLOYEES SOUGHT TO BE REPRESENTED BY THE PLUMBERS ARE EMPLOYED
IN EITHER THE EMERGENCY SERVICE SECTION OF THE EMERGENCY SERVICE AND
BUILDING TRADES BRANCH OR IN THE METAL TRADES BRANCH OF THE MAINTENANCE
/6/ DIVISION. THE METAL TRADES BRANCH CONSISTS OF THREE "WORK CENTERS"
OR SHOPS LOCATED IN THE SAME GENERAL AREA OF THE PUBLIC WORKS BUILDING.
ONE OF THESE "WORK CENTERS," WHICH IS COMMONLY REFERRED TO AS THE "PIPE
SHOP," CONTAINS EMPLOYEES SOUGHT BY THE PLUMBERS' /7/ PETITION. THE
EMPLOYEES IN THE "PIPE SHOP" ARE DIVIDED INTO TWO CREWS /8/ WITH EACH
CREW OPERATING UNDER THE DIRECTION OF A PIPEFITTER FOREMAN. THESE
FOREMEN GIVE JOB ORDERS TO THE PLUMBING EMPLOYEES UNDER THEIR
SUPERVISION AND GENERALLY SUPERVISE THE PLUMBING DUTIES ON THE
PARTICULAR JOB INVOLVED. THEY ALSO HAVE AUTHORITY TO GRANT TIME OFF AND
SICK LEAVE AND ARE RESPONSIBLE FOR EVALUATING THE WORK OF THE MEN UNDER
THEIR SUPERVISION FOR THE PURPOSE OF PROMOTION OR DISCIPLINARY ACTIONS.
THE EMERGENCY SERVICE SECTION OF THE EMERGENCY SERVICE AND BUILDING
TRADES BRANCH, WHICH ALSO CONTAINS EMPLOYEES SOUGHT TO BE COVERED BY THE
PLUMBERS' PETITION IS RESPONSIBLE FOR ANSWERING EMERGENCY CALLS
THROUGHOUT THE AIR STATION. THE COMPLEMENT OF THIS SECTION CONSISTS OF
A GROUP OF EMPLOYEES OF VARIOUS SKILLS INCLUDING A "LEADER PIPEFITTER,"
ONE PLUMBER AND SEVEN /9/ PIPEFITTERS. ALTHOUGH ALL OF THE EMPLOYEES IN
THIS SECTION ARE UNDER THE OVERALL SUPERVISION OF A "MAINTENANCE
FOREMAN," THE "LEADER PIPEFITTER" IS DIRECTLY RESPONSIBLE FOR THE
SUPERVISION OF THE PLUMBER AND PIPEFITTER /10/ EMPLOYEES.
ALL OF THE EMPLOYEES IN THE MAINTENANCE DIVISION (WITH THE EXCEPTION
OF THE JANITORIAL EMPLOYEES) WORK OUT OF THE SAME BUILDING. THE
MAINTENANCE JOBS USUALLY REQUIRE THE SERVICES OF MOST OF THE CRAFTS
WORKING TOGETHER. THE TOOLS USED BY THE MAINTENANCE EMPLOYEES,
INCLUDING PLUMBING EMPLOYEES, ARE CHANNELLED THROUGH THE MAINTENANCE
DEPARTMENT'S CENTRAL TOOL ROOM. MAINTENANCE EMPLOYEES WORK UNDER A
COMMON PROMOTIONAL SYSTEM, UTILIZE A COMMON DISPENSARY, HAVE THE SAME
BASIS FOR COMPENSATION AND FRINGE BENEFITS, HAVE COMMON OVERTIME
PRACTICES, AND UTILIZE THE SAME MOBILE EQUIPMENT. THEY ALSO HAVE COMMON
REST ROOMS AND SHARE THE SAME LUNCH BREAKS.
ALTHOUGH THERE ARE OCCASIONS WHEN PLUMBING EMPLOYEES HELP OTHER CRAFT
EMPLOYEES ON PARTICULAR JOBS BY PERFORMING ELECTRICAL, CARPENTRY, AND
PAINTING SERVICES, SUCH NON-CRAFT WORK IS MERELY INCIDENTAL TO THEIR
OVERALL PLUMBING DUTIES. THUS, EMPLOYEES IN THE "PIPE SHOP" PERFORM
PLUMBING WORK ABOUT 98 OR 99 PERCENT OF THE TIME AND PLUMBING EMPLOYEES
IN THE EMERGENCY SERVICE SECTION SPEND ABOUT 90 PERCENT OF THEIR TIME ON
PLUMBING WORK.
MOST OF THE PLUMBING EMPLOYEES IN THE EMERGENCY SERVICE SECTION ARE
TRANSFEREES FROM THE "PIPE SHOP" AND WHEN TECHNICAL PROBLEMS ARISE IN AN
EMERGENCY SITUATION OR ADDITIONAL EMPLOYEES ARE REQUIRED ON A PARTICULAR
JOB, PLUMBING EMPLOYEES FROM BOTH BRANCHES CONSULT WITH EACH OTHER AND
WORK TOGETHER.
EMPLOYEES CLASSIFIED AS INSULATORS AND REFRIGERATION MECHANICS WORK
IN THE "PIPE SHOP" UNDER THE SUPERVISION OF THE PIPEFITTER FOREMAN. AN
INSULATOR IS NORMALLY CALLED UPON TO CORRECT A HAZARDOUS CONDITION WHERE
HEAT AND COLD MIGHT AFFECT THE PERSONNEL. ALTHOUGH, HE DOES NOT WORK
SOLELY WITH PLUMBERS AND PIPEFITTERS, THE MAJORITY OF AN INSULATOR'S
SKILLS ARE ASSOCIATED WITH THE PIPEFITTING CRAFT. REFRIGERATION
MECHANICS HAVE SKILLS WHICH, IN CERTAIN RESPECTS, ALSO ARE SIMILAR TO
THOSE OF PIPEFITTERS. ALSO, THE PLUMBERS' APPRENTICESHIP PROGRAM IS
SIMILAR TO THAT OF REFRIGERATION MECHANICS AND GENERALLY REFRIGERATION
MECHANICS ARE QUALIFIED TO PERFORM /11/ PIPEFITTING WORK.
BASED ON THE FOREGOING, I FIND THAT THE UNIT PETITIONED FOR BY THE
PLUMBERS IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
EXECUTIVE ORDER 11491. THE RECORD REVEALS THAT THE EMPLOYEES SOUGHT TO
BE REPRESENTED BY THE PLUMBERS WORK IN TWO CLOSELY RELATED WORK CENTERS
WITHIN THE SAME BUILDING. THE "PIPE SHOP" IS COMPRISED ALMOST ENTIRELY
OF PLUMBING AND RELATED CRAFTSMEN WHO ARE SUPERVISED BY PIPEFITTER
FOREMEN. ALTHOUGH THE EMERGENCY SERVICE SECTION IS COMPRISED OF
EMPLOYEES FROM VARIOUS CRAFTS, THE PLUMBING EMPLOYEES IN THAT SECTION
WORK UNDER THE DIRECTION OF A "LEADER PIPEFITTER" AND THEY ENJOY A CLOSE
WORKING RELATIONSHIP WITH THE "PIPE SHOP" EMPLOYEES. IN THIS LATTER
REGARD, THE RECORD ESTABLISHES THAT PLUMBING EMPLOYEES ARE SHIFTED BACK
AND FORTH BETWEEN THESE TWO WORK CENTERS AND THAT NEARLY EVERY PLUMBING
EMPLOYEE HAS AT ONE TIME WORKED IN BOTH WORK CENTERS.
IN THESE CIRCUMSTANCES AND NOTING THE FACT THAT SECTION 10(B) OF THE
ORDER SPECIFICALLY PROVIDES, IN PART, THAT A UNIT MAY BE ESTABLISHED ON
A CRAFT BASIS, I FIND THAT A SELF DETERMINATION ELECTION IN THE UNIT
SOUGHT BY THE PLUMBERS IS WARRANTED SINCE THE EMPLOYEES CONSTITUTE A
FUNCTIONALLY DISTINCT CRAFT WITH A CLEAR AND IDENTIFIABLE COMMUNITY /12/
OF INTEREST.
I FIND THAT INSUFFICIENT EVIDENCE WAS OFFERED TO ESTABLISH THAT THE
UNIT SOUGHT BY THE PLUMBERS WOULD NOT PROMOTE EFFECTIVE DEALINGS AND THE
EFFICIENCY OF AGENCY OPERATIONS WITHIN THE MEANING OF SECTION 10(B) OF
EXECUTIVE ORDER 11491. PARTICULARLY NOTED IN THIS REGARD WAS THE FACT
THAT UNDER EXECUTIVE ORDER 10988 THE ACTIVITY ACCORDED EXCLUSIVE
RECOGNITION TO VARIOUS UNIONS COVERING SIX SEPARATE UNITS AND THAT TWO
OF THESE UNITS INVOLVED CERTAIN EMPLOYEES IN THE MAINTENANCE DIVISION.
THERE WAS NO EVIDENCE IN THE RECORD THAT SUCH RELATIONSHIPS HAD EITHER
HAMPERED THE ACTIVITY'S OPERATIONS OR PRECLUDED EFFECTIVE DEALINGS
BETWEEN THE PARTIES.
ALSO, I FIND THAT THE UNIT PETITIONED FOR BY THE IAM CONSTITUTES AN
APPROPRIATE UNIT. THE RECORD DEMONSTRATES THAT THE EMPLOYEES IN THE
UNIT REQUESTED BY THE IAM GENERALLY HAVE THE SAME TERMS AND CONDITIONS
OF EMPLOYMENT. MOREOVER, THIS GROUP OF EMPLOYEES INCLUDES ALL OF THE
REMAINING UNREPRESENTED BLUE COLLAR EMPLOYEES AT THE ACTIVITY. IN THESE
CIRCUMSTANCES AND IN THE ABSENCE OF ANY OTHER LABOR ORGANIZATION SEEKING
TO REPRESENT THESE REMAINING BLUE COLLAR EMPLOYEES ON ANY OTHER BASIS, I
FIND THAT THE UNIT SOUGHT BY THE IAM PETITION AND SUPPORTED BY THE
ACTIVITY IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION /13
UNDER EXECUTIVE ORDER 11491.
4. HAVING FOUND THAT THE EMPLOYEES PETITIONED FOR BY THE PLUMBERS
MAY, IF THEY SO DESIRE, CONSTITUTE A SEPARATE APPROPRIATE UNIT, I SHALL
NOT MAKE ANY FINAL UNIT DETERMINATION AT THIS TIME, BUT SHALL FIRST
ASCERTAIN THE DESIRES OF THE EMPLOYEES BY DIRECTING ELECTIONS IN THE
FOLLOWING GROUPS:
VOTING GROUP (A): ALL UNGRADED EMPLOYEES AT THE ALAMEDA NAVAL AIR
STATION IN THE FOLLOWING CLASSIFICATIONS INCLUDING APPRENTICES:
PLUMBER, PLUMBER HELPER, PIPEFITTER, PIPEFITTER HELPER, REFRIGERATION
AND AIR CONDITIONING MECHANIC, REFRIGERATION AND AIR CONDITIONING
MECHANIC HELPER, INSULATOR, INSULATOR HELPER IN THE PUBLIC WORKS
DEPARTMENT, MAINTENANCE DIVISION, BUT EXCLUDING ALL EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL UNGRADED EMPLOYEES AT THE ALAMEDA NAVAL AIR
STATION WORKING IN SUPPLY, PUBLIC WORKS, AIR OPERATIONS AND ANY OTHERS
UNDER THE ACTIVITY COMMAND, BUT EXCLUDING ALL EMPLOYEES VOTING IN GROUP
(A), EMPLOYEES ALREADY COVERED BY EXCLUSIVE RECOGNITION, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS
AND GUARDS /14/ AS DEFINED IN THE ORDER.
IF A MAJORITY OF THE EMPLOYEES VOTING IN GROUP (A) SELECT THE UNION
(PLUMBERS) SEEKING TO REPRESENT THEM SEPARATELY, THEY WILL BE TAKEN TO
HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE APPROPRIATE UNIT
AND THE AREA ADMINISTRATOR SUPERVISING THE ELECTION IS INSTRUCTED TO
ISSUE A CERTIFICATION OF REPRESENTATIVE TO THE LABOR ORGANIZATION
SEEKING TO REPRESENT THEM SEPARATELY. IN SUCH EVENT, THE AREA
ADMINISTRATOR IS INSTRUCTED TO ISSUE EITHER A CERTIFICATION OF THE
RESULTS OF THE ELECTION OR A CERTIFICATION OF REPRESENTATIVE FOR VOTING
GROUP (B) WHICH I ALSO FIND TO BE AN APPROPRIATE UNIT FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. HOWEVER, IF A MAJORITY OF THE EMPLOYEES VOTING
IN GROUP (A) DO NOT VOTE FOR THE UNION (PLUMBERS) WHICH IS SEEKING TO
REPRESENT THEM IN A SEPARATE UNIT, THE BALLOTS OF THE EMPLOYEES IN SUCH
VOTING GROUP WILL BE POOLED WITH THOSE OF THE EMPLOYEES VOTING IN GROUP
GROUP /15/ (B). IF A MAJORITY IN VOTING GROUP (B) INCLUDING ANY VOTES
POOLED FROM VOTING GROUP (A), VOTES FOR THE IAM, THAT LABOR ORGANIZATION
SHALL BE CERTIFIED AS THE REPRESENTATIVE OF EMPLOYEES IN GROUPS (A) AND
(B) WHICH UNDER THE CIRCUMSTANCES I FIND TO BE AN APPROPRIATE UNIT FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION.
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN THE
VOTING GROUPS DESCRIBED ABOVE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE VOTING GROUPS WHO WERE
EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO HAVE QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE IN VOTING GROUP (A) SHALL VOTE
WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY UNITED ASSOCIATION OF PLUMBERS AND GAS FITTERS, AFL-CIO,
LOCAL 444; OR BY INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, LODGE 739; OR BY NEITHER. THOSE ELIGIBLE IN VOTING
GROUP (B) SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION BY INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LODGE 739.
DATED, WASHINGTON, D.C.
JANUARY 15, 1971
/1/ TWO SEPARATE PETITIONS WERE FILED IN THE SUBJECT CASE. HOWEVER,
APPARENTLY IN VIEW OF THEIR RELATED NATURE, THE AREA ADMINISTRATOR
ASSIGNED THE SAME CASE NUMBER TO BOTH PETITIONS.
/2/ THE PLUMBERS ALSO FILED A MOTION TO STRIKE PORTIONS OF THE
ACTIVITY'S BRIEF ON THE GROUND THAT SUCH PORTIONS WERE UNSUBSTANTIATED
BY THE RECORD TESTIMONY. INASMUCH AS THE EVIDENCE ADDUCED AT THE
HEARING ADEQUATELY SETS FORTH THE FACTS NECESSARY TO REACH A
DETERMINATION OF THE UNIT ISSUES IN THIS REPRESENTATION PROCEEDING, THE
MOTION IS DENIED.
/3/ ALTHOUGH THE UNIT SOUGHT BY THE PLUMBERS' PETITION DID NOT
INCLUDE THE APPRENTICE CLASSIFICATION, THE PLUMBERS AMENDED THEIR
PETITION AT THE HEARING TO INCLUDE APPRENTICES.
THERE IS A FOUR-YEAR APPRENTICESHIP PROGRAM WITHIN THE ACTIVITY'S
MAINTENANCE DIVISION UNDER THE CONTROL OF THE ACTIVITY'S INDUSTRIAL
RELATIONS DEPARTMENT. EACH CRAFT WITHIN THE DIVISION PROVIDES ITS OWN
INSTRUCTOR. A PLUMBING APPRENTICE WILL COVER ALL FIELDS WITH THE "PIPE
SHOP" AND AFTER A FOUR-YEAR PERIOD, HE WILL BECOME A JOURNEYMAN
PIPEFITTER.
/4/ THE OPERATIONS OF THE ALAMEDA NAVAL AIR STATION CONSIST OF
SEVERAL SEPARATE DEPARTMENTS. THE PUBLIC WORKS DEPARTMENT IS COMPRISED
OF THE FOLLOWING DIVISIONS -- MAINTENANCE, ADMINISTRATIVE, ENGINEERING,
TRANSPORTATION, MAINTENANCE CONTROL, HOUSING, AND UTILITIES.
/5/ THE IAM WAS RECOGNIZED PREVIOUSLY FOR A UNIT OF MACHINISTS AND
TOOL ROOM ATTENDANTS AND PURSUANT TO AN ARBITRATION DECISION UNDER
EXECUTIVE ORDER 10988, THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS WAS RECOGNIZED FOR A UNIT OF ELECTRICIANS AND RELATED
CLASSIFICATIONS.
/6/ THE MAINTENANCE DIVISION CONSISTS OF FIVE BRANCHES: EMERGENCY
SERVICE AND BUILDING TRADES BRANCH, METAL TRADES BRANCH, ELECTRICAL
BRANCH, GENERAL SERVICES BRANCH AND NARF JANITORIAL (JANITORIAL BRANCH).
/7/ THE OTHER TWO "WORK CENTERS" IN THE METAL TRADES BRANCH EMPLOY,
AMONG OTHERS, MACHINIST AND SHEET METAL EMPLOYEES.
/8/ ONE OF THE CREWS PERFORMS WORK CONNECTED WITH PREVENTATIVE
MAINTENANCE WHILE THE OTHER CREW HANDLES SPECIFIC JOBS.
/9/ OTHER TYPES OF EMPLOYEES IN THIS SECTION INCLUDE ELECTRICIANS,
CARPENTERS, A GLAZIER, A SHEETMETAL WORKER, AND AN IRON WORKER.
/10/ THE "LEADER PIPEFITTER" HAS ESSENTIALLY THE SAME SUPERVISORY
AUTHORITY AS IS EXERCISED BY THE PIPEFITTER FOREMEN IN THE METAL TRADES
BRANCH.
/11/ THE PLUMBERS HAS ITS OWN APPRENTICESHIP PROGRAM FOR
REFRIGERATION MECHANICS IN WHICH REFRIGERATION MECHANIC APPRENTICES
USUALLY SPEND APPROXIMATELY THE FIRST THREE YEARS OF THE PROGRAM IN
ASSOCIATION WITH THE PIPEFITTERS AND THEREAFTER, THEY BRANCH OFF INTO
THE REFRIGERATION AND AIR CONDITIONING PORTION OF THE PROGRAM.
/12/ UNDER ALL THE CIRCUMSTANCES, THE CLASSIFICATIONS OF
REFRIGERATION AND AIR CONDITIONING MECHANIC AND INSULATOR SHOULD BE
INCLUDED IN THE UNIT SOUGHT BY THE PLUMBERS. THE RECORD REVEALED THAT
THE EMPLOYEES IN THESE CLASSIFICATIONS WORK UNDER THE DIRECT SUPERVISION
OF THE PIPEFITTER FOREMEN IN THE "PIPE SHOP" AND THE MAJORITY OF THEIR
SKILLS ARE ASSOCIATED WITH THOSE PERFORMED BY PIPEFITTER EMPLOYEES.
/13/ BASED ON THE FOREGOING, I ALSO FIND THAT THE UNIT SOUGHT BY THE
IAM BUT EXCLUDING THOSE CLASSIFICATIONS SOUGHT BY THE PLUMBERS MAY BE AN
APPROPRIATE UNIT.
/14/ IN ITS PETITION THE IAM SEEKS TO EXCLUDE TEMPORARY LIMITED
EMPLOYEES. INASMUCH AS THE RECORD CONTAINS NO EVIDENCE WITH RESPECT TO
THIS CATEGORY OF EMPLOYEES, NO FINDING IS MADE AT THIS TIME AS TO THEIR
ELIGIBILITY.
/15/ IF THE VOTES ARE POOLED, THEY ARE TO BE TALLIED IN THE FOLLOWING
MANNER: THE VOTES FOR THE PLUMBERS, THE LABOR ORGANIZATION SEEKING A
SEPARATE UNIT IN GROUP (A), SHALL BE COUNTED AS PART OF THE TOTAL NUMBER
OF VALID VOTES CAST BUT NEITHER FOR NOR AGAINST THE IAM, THE LABOR
ORGANIZATION SEEKING TO REPRESENT THE RESIDUAL, BASE-WIDE UNIT. ALL
OTHER VOTES ARE TO BE ACCORDED THEIR FACE VALUE.
1 A/SLMR 5; P. 49; CASE NOS. 31-3177(EO), 31-3214(EO); JANUARY 15,
1971.
UNITED STATES ARMY ENGINEER DIVISION, NEW ENGLAND
A/SLMR NO. 5
THIS CASE INVOLVED REPRESENTATION PETITIONS FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2995, (AFGE) AND THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1164, (NFFE). THE AFGE
SOUGHT A UNIT OF NONPROFESSIONAL EMPLOYEES "STATIONED" AT THE ACTIVITY'S
HEADQUARTERS IN WALTHAM, MASSACHUSETTS. THE NFFE SOUGHT A UNIT OF
NONPROFESSIONAL EMPLOYEES AND PROFESSIONAL EMPLOYEES EMPLOYED AT THE
ACTIVITY'S HEADQUARTERS AND ITS FIELD FACILITIES.
THE ASSISTANT SECRETARY FOUND THAT A UNIT COMPRISED SOLELY OF THE
NONPROFESSIONAL EMPLOYEES "STATIONED" AT THE ACTIVITY'S HEADQUARTERS, AS
PROPOSED BY THE AFGE, WOULD BE INAPPROPRIATE BECAUSE IT INCLUDED CERTAIN
EMPLOYEES WHO SPENT SUBSTANTIAL PORTIONS OF THEIR WORKING TIME IN THE
FIELD WHILE EXCLUDING OTHER FIELD EMPLOYEES. FURTHER, THE ASSISTANT
SECRETARY NOTED THE ACTIVITY'S CENTRALIZED ADMINISTRATIVE AND
SUPERVISORY STRUCTURE, THE INTEGRATION OF ITS WORK PROCESSES WITHIN THE
VARIOUS HEADQUARTERS AND FIELD SEGMENTS, THE SIMILARITY OF JOB
CLASSIFICATIONS AT HEADQUARTERS AND IN THE FIELD, AND THE FACT THAT
THERE HAD BEEN TRANSFERS OF EMPLOYEES BETWEEN THE ACTIVITY'S
HEADQUARTERS AND ITS FIELD COMPONENTS. THESE FACTORS WERE FOUND TO
WEIGH HEAVILY IN FAVOR OF THE DIVISION-WIDE UNIT OF PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES SOUGHT BY THE NFFE. IN VIEW OF THE FOREGOING,
THE ASSISTANT SECRETARY FOUND THAT A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST EXISTED AMONG ALL OF THE ACTIVITY'S EMPLOYEES. FURTHER, THE
ASSISTANT SECRETARY FOUND THAT THE DIVISION-WIDE UNIT COMPOSED OF ALL
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES WORKING AT THE ACTIVITY'S
HEADQUARTERS AND FIELD FACILITIES WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY ORDERED THAT THE
PETITION FILED BY THE AFGE BE DISMISSED AND DIRECTED THAT ELECTIONS BE
HELD FIRST TO ASCERTAIN THE DESIRES OF THE PROFESSIONAL EMPLOYEES AS TO
THEIR INCLUSION IN A UNIT WITH NONPROFESSIONAL EMPLOYEES AND THEN TO
DETERMINE WHETHER OR NOT THE EMPLOYEES DESIRED UNION REPRESENTATION.
UNITED STATES ARMY ENGINEER DIVISION, /1/ NEW ENGLAND
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2995
UNITED STATES ARMY ENGINEER DIVISION, NEW ENGLAND
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1164
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER ROBERT J. TIGHE.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF THE EXECUTIVE
ORDER 11491.
3. IN CASE NO. 31-3177(EO), PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2995 (HEREINAFTER REFERRED TO AS
AFGE), SEEKS AN ELECTION IN A UNIT OF ALL NONPROFESSIONAL,
NONSUPERVISORY EMPLOYEES OF THE UNITED STATES ARMY ENGINEER DIVISION,
NEW ENGLAND (HEREINAFTER REFERRED TO AS THE ACTIVITY), "STATIONED" /2/
AT THE ACTIVITY'S HEADQUARTERS IN WALTHAM, MASSACHUSETTS. IN CASE NO.
31-3214(EO), PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
1164, (HEREINAFTER REFERRED TO AS NFFE), SEEKS AN ELECTION IN A UNIT OF
ALL NONSUPERVISORY PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE
UNITED STATES ARMY ENGINEER DIVISION, NEW ENGLAND, ASSIGNED TO THE
ACTIVITY'S HEADQUARTERS IN WALTHAM, MASSACHUSETTS, AND ITS FIELD /3/
FACILITIES. AT THE HEARING, THE ACTIVITY TOOK A NEUTRAL POSITION WITH
RESPECT TO THE APPROPRIATENESS OF THE UNITS PROPOSED BY THE PETITIONERS.
THE MAIN FUNCTION OF THE UNITED STATES ARMY ENGINEER DIVISION, NEW
ENGLAND IS THE CONSTRUCTION, OPERATION AND MAINTENANCE OF FLOOD CONTROL
AND LOCAL FLOOD PROTECTION STRUCTURES, AS WELL AS THE IMPROVEMENT AND
MAINTENANCE OF NAVIGABLE WATERWAYS. THE ACTIVITY'S HEADQUARTERS LOCATED
IN WALTHAM, MASSACHUSETTS, HAS 14 ORGANIZATIONAL COMPONENTS AND EMPLOYS
APPROXIMATELY 453 EMPLOYEES. IT IS RESPONSIBLE ALSO FOR THE
ADMINISTRATION AND OPERATION OF 5 ADDITIONAL FIELD /4/ FACILITIES.
THESE FIELD FACILITIES, EXCLUDING THE CAPE COD CANAL, EMPLOY
APPROXIMATELY 107 EMPLOYEES. GENERAL RESPONSIBILITY FOR THE
ADMINISTRATION OF THE ENTIRE OPERATION RESTS WITH THE DIVISION ENGINEER
WHO IS LOCATED IN THE EXECUTIVE OFFICE AT THE ACTIVITY'S HEADQUARTERS.
THE PERSONNEL OFFICE, THE OFFICE OF THE COMPTROLLER, THE OFFICE OF
ADMINISTRATIVE SERVICES, THE ENGINEERING, CONSTRUCTION AND OPERATIONS
DIVISIONS, AND OTHER ADMINISTRATIVE OFFICES ARE LOCATED ALSO AT THE
ACTIVITY'S WALTHAM, MASSACHUSETTS HEADQUARTERS.
THE PERSONNEL OFFICE HANDLES ALL PERSONNEL MATTERS, INCLUDING
EMPLOYEE GRIEVANCES ARISING IN THE HEADQUARTERS /5/ AND THE FIELD. THE
OFFICE OF ADMINISTRATIVE SERVICES AND THE ACTIVITY'S OTHER
ADMINISTRATIVE OFFICES PROVIDE THE WORK FORCE WITH TRANSPORTATION,
SUPPLIES AND OTHER NECESSARY SERVICES. THE ENGINEERING DIVISION, WHICH
IS THE LARGEST /6/ COMPONENT, PERFORMS SOME OF THE ACTIVITY'S ESSENTIAL
TECHNICAL FUNCTIONS. THESE INCLUDE THE OBTAINMENT OF TECHNICAL DATA
THROUGH PERIODIC SURVEYS WHICH ARE CONDUCTED IN THE FIELD BY TEAMS
COMPOSED OF PROFESSIONAL AND NONPROFESSIONAL /7/ PERSONNEL.
WITH RESPECT TO THE BARGAINING HISTORY PRIOR TO THE FILING OF THE
SUBJECT PETITIONS, THE ACTIVITY ACCORDED EXCLUSIVE RECOGNITION TO THE
AFGE UNDER EXECUTIVE ORDER 10988, COVERING A UNIT OF MAINTENANCE AND
OPERATING EMPLOYEES AT THE CAPE COD CANAL. ALSO, FORMAL RECOGNITION WAS
GRANTED BY THE ACTIVITY TO THE AFGE UNDER EXECUTIVE ORDER 10988 IN A
UNIT COMPOSED OF NONPROFESSIONAL EMPLOYEES STATIONED AT /8/ THE
ACTIVITY'S HEADQUARTERS.
ACCORDING TO THE CLASSIFICATION STANDARDS WHICH APPARENTLY ARE
APPLIED UNIFORMLY THROUGHOUT THE ACTIVITY, THE ENGINEERS AND OTHER
PROFESSIONAL EMPLOYEES COMPRISE MORE THAN ONE-THIRD OF THE ENTIRE WORK
FORCE. ENGINEERS ARE ASSIGNED TO THE ENGINEERING DIVISION AS WELL AS TO
OTHER COMPONENTS AT THE ACTIVITY'S HEADQUARTERS /9/ AND IN THE FIELD.
THIS SITUATION IS TRUE ALSO WITH RESPECT TO TECHNICIANS AND CLERICAL
EMPLOYEES.
THE RECORD FURTHER SHOWS THAT EMPLOYEES HAVE "BUMPING RIGHTS," WHICH
THEY CAN EXERCISE AGAINST OTHER EMPLOYEES ON A DIVISION-WIDE BASIS;
THAT THERE HAS BEEN TRANSFERRING OF EMPLOYEES BETWEEN THE ACTIVITY'S
HEADQUARTERS AND ITS FIELD COMPONENTS; THAT CAFETERIA AND PARKING
FACILITIES AT THE ACTIVITY'S HEADQUARTERS ARE USED BY BOTH PROFESSIONAL
AND NONPROFESSIONAL EMPLOYEES; AND THAT THE ACTIVITY PUBLISHES A
NEWSPAPER WHICH CONTAINS ITEMS OF INTEREST TO ALL OF ITS EMPLOYEES. AS
INDICATED ABOVE, ALL PERSONNEL MATTERS, INCLUDING THE PROCESSING OF
GRIEVANCES, ARE HANDLED BY THE PERSONNEL OFFICE AT THE ACTIVITY'S
HEADQUARTERS.
IT IS CLEAR FROM THE RECORD THAT THE UNIT SOUGHT BY THE AFGE COVERING
ALL NONPROFESSIONAL, NONSUPERVISORY EMPLOYEES "STATIONED" AT THE
ACTIVITY'S HEADQUARTERS IN WALTHAM, MASSACHUSETTS WOULD ENCOMPASS NOT
ONLY THE EMPLOYEES WHO WORK SOLELY AT HEADQUARTERS BUT ALSO CERTAIN
EMPLOYEES WHO SPEND A SUBSTANTIAL PORTION OF THEIR WORKING TIME IN THE
FIELD. THE ESTABLISHMENT OF SUCH A UNIT WOULD RESULT IN THE INCLUSION
OF SOME EMPLOYEES ASSIGNED TO THE FIELD, WHILE EXCLUDING OTHER FIELD
PERSONNEL. IN THESE CIRCUMSTANCES AND CONSIDERING THE ACTIVITY'S
CENTRALIZED ADMINISTRATIVE AND SUPERVISORY STRUCTURE, THE INTEGRATION OF
ITS WORK PROCESSES WITHIN THE VARIOUS HEADQUARTERS AND FIELD SEGMENTS,
THE SIMILARITY OF JOB CLASSIFICATIONS AT HEADQUARTERS AND IN THE FIELD,
THE FACT THAT THERE HAVE BEEN TRANSFERS OF EMPLOYEES BETWEEN
HEADQUARTERS AND ITS FIELD COMPONENTS, AND THE FACT THAT "BUMPING
RIGHTS" ARE ON A DIVISION-WIDE BASIS, I FIND THAT THE UNIT SOUGHT BY THE
AFGE IS NOT APPROPRIATE.
I ALSO FIND, BASED ON THE FOREGOING, THAT THE DIVISION-WIDE UNIT OF
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, AS PROPOSED BY THE NFFE, IS
APPROPRIATE. AS NOTED ABOVE, THE RECORD REVEALS THAT THERE IS
SUBSTANTIAL INTEGRATION OF FUNCTIONS BETWEEN THE ACTIVITY'S HEADQUARTERS
AND ITS FIELD FACILITIES. SUPERVISION OF EMPLOYEES ASSIGNED TO THE
VARIOUS ORGANIZATIONAL COMPONENTS IN THE HEADQUARTERS AND FIELD
FACILITIES IS MAINTAINED THROUGH A CHAIN OF SUPERVISION WHICH BEGINS
WITH THE EXECUTIVE OFFICER IN THE DIVISION'S HEADQUARTERS. THE
ENGINEERING DIVISION, WHICH IS THE ACTIVITY'S LARGEST COMPONENT,
INCLUDES BOTH PROFESSIONAL /10/ AND NONPROFESSIONAL TECHNICAL EMPLOYEES
WHO, IN MANY INSTANCES, PERFORM DUTIES BOTH AT THE ACTIVITY'S
HEADQUARTERS AND IN ITS FIELD FACILITIES. ALSO, THERE IS EVIDENCE THAT
EMPLOYEES HAVE TRANSFERRED FROM JOB TO JOB WITHIN THE DIVISION AND THAT
THEY HAVE "BUMPING RIGHTS" ON A DIVISION-WIDE BASIS. IN THESE
CIRCUMSTANCES, I FIND THAT THERE IS A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST AMONG THE EMPLOYEES PETITIONED FOR BY THE NFFE. MOREOVER,
SUCH A COMPREHENSIVE UNIT WILL, IN MY VIEW, PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS.
I FIND THAT THE FOLLOWING EMPLOYEES OF THE ACTIVITY MAY CONSTITUTE A
UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
EXECUTIVE ORDER 11491:
AS STATED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. HOWEVER, THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION
10(B)(4) OF THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT
WITH EMPLOYEES WHO ARE NOT PROFESSIONAL UNLESS A MAJORITY OF THE
PROFESSIONAL EMPLOYEES VOTE FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY,
THE DESIRES OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL THEREFORE DIRECT
SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL HEADQUARTERS AND FIELD PROFESSIONAL EMPLOYEES
OF THE UNITED STATES ARMY ENGINEER DIVISION, NEW ENGLAND EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES, EMPLOYEES ASSIGNED TO THE CAPE COD CANAL,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL HEADQUARTERS AND FIELD EMPLOYEES OF THE UNITED
STATES ARMY ENGINEER DIVISION, NEW ENGLAND, EXCLUDING PROFESSIONAL
EMPLOYEES, EMPLOYEES ASSIGNED TO THE CAPE COD CANAL, ALL EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN
THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER THEY DESIRE TO BE REPRESENTED BY THE NFFE, THE AFGE, /11/ OR
NEITHER.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOT: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION AND (2) WHETHER THEY WISH TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY THE NFFE, THE AFGE OR NEITHER. IN THE EVENT
THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR
OF INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THE BALLOTS
OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING GROUP (B).
IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A)
ARE CASE AGAINST INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL
EMPLOYEES, THEY WILL BE TAKEN TO HAVE INDICATED THEIR DESIRE TO
CONSTITUTE A SEPARATE UNIT, AND AN APPROPRIATE CERTIFICATION WILL BE
ISSUED INDICATING WHETHER THE NFFE, THE AFGE OR NO LABOR ORGANIZATION
WAS SELECTED BY THE PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTE FOR INCLUSION IN
THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL HEADQUARTERS AND FIELD EMPLOYEES OF THE UNITED STATES ARMY
ENGINEERS DIVISION, NEW ENGLAND, EXCLUDING PROFESSIONAL EMPLOYEES,
EMPLOYEES ASSIGNED TO THE CAPE COD CANAL, ALL EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
(B) ALL HEADQUARTERS AND FIELD PROFESSIONAL EMPLOYEES OF THE UNITED
STATES ARMY ENGINEER DIVISION, NEW ENGLAND, EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES, EMPLOYEES ASSIGNED TO THE CAPE COD CANAL,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 31-3177(EO)
BE, AND IT HEREBY IS DISMISSED.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD, BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE, SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE
TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1164, OR BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2995, OR BY NEITHER.
DATED, WASHINGTON, D.C.
JANUARY 15, 1971
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE RECORD REVEALS THAT THE TERM "STATIONED" WAS INTENDED TO
INCLUDE EMPLOYEES, WHO, ALTHOUGH LISTED AMONG THE EMPLOYEES WORKING AT
THE ACTIVITY'S HEADQUARTERS IN WALTHAM, MASSACHUSETTS, MAY BE PHYSICALLY
LOCATED IN THE ACTIVITY'S FIELD OPERATIONS FOR SUBSTANTIAL PERIODS OF
TIME.
/3/ THE PARTIES AGREED TO EXCLUDE FROM THE PROPOSED UNITS, EMPLOYEES
ASSIGNED TO THE ACTIVITY'S CAPE COD CANAL FACILITY WHO ALREADY ARE
REPRESENTED.
/4/ THESE FACILITIES INCLUDE THE CAPE COD CANAL, THE RIVERS AND
HARBORS AREA, THE ANSONIA AREA, THE COMPLETED DAMS AND THE COMPLETED
HURRICANE BARRIERS.
/5/ THE RECORD SHOWS THAT THE DIVISION ENGINEER AND THE DIRECTOR OF
CIVILIAN PERSONNEL HAVE THE AUTHORITY FOR APPROVING LABOR-MANAGEMENT
AGREEMENTS INVOLVING THE ACTIVITY.
/6/ IT CONTAINS 268 EMPLOYEES, AS COMPARED TO 44 EMPLOYEES IN THE
NEXT LARGEST COMPONENT.
/7/ WHILE THESE TEAMS ARE COMPOSED OF PERSONNEL FROM THE ACTIVITY'S
HEADQUARTERS, THEY GENERALLY INCLUDE AT LEAST ONE EMPLOYEE FROM THE
FIELD.
/8/ THE RECORD FURTHER SHOWS THAT FORMAL AND INFORMAL RECOGNITION
ALSO WAS GRANTED TO LABOR ORGANIZATIONS, INCLUDING THE INTERNATIONAL
ORGANIZATION OF MASTERS, MATES AND PILOTS (AFL-CIO) AND THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, FOR UNITS OF EMPLOYEES ASSIGNED TO
THE ACTIVITY'S FIELD OPERATIONS.
/9/ WHILE THE ENGINEERS IN THE ENGINEERING DIVISION GENERALLY PERFORM
THEIR DUTIES AT DIVISION HEADQUARTERS, THEY ALSO MAKE TRIPS TO THE FIELD
TO GATHER INFORMATION NECESSARY TO ACCOMPLISH THE ACTIVITY'S MISSION.
/10/ APPARENTLY THE PETITIONERS AGREED TO ADOPT THE ACTIVITY'S
CLASSIFICATION OF EMPLOYEES AS TO THEIR PROFESSIONAL OR NONPROFESSIONAL
STATUS. SINCE THE RECORD DOES NOT SET FORTH SUFFICIENT FACTS IN THIS
RESPECT, I WILL MAKE NO FINDINGS AS TO WHICH EMPLOYEE CLASSIFICATIONS
CONSTITUTE PROFESSIONAL EMPLOYEES.
/11/ AS THE AFGE'S SHOWING OF INTEREST IS SUFFICIENT TO TREAT IT AS
AN INTERVENOR, I SHALL ORDER THAT ITS NAME BE PLACED ON THE BALLOT.
HOWEVER, BECAUSE THE UNIT FOUND APPROPRIATE IS LARGER THAN THE UNIT IT
SOUGHT INITIALLY, I SHALL PERMIT IT TO WITHDRAW FROM THE ELECTION UPON
NOTICE TO THE APPROPRIATE AREA ADMINISTRATOR WITHIN 10 DAYS OF THE
ISSUANCE OF THIS DECISION.
1 A/SLMR 4; P. 47; CASE NO. 40-2009(RO); JANUARY 1, 1971.
DEFENSE SUPPLY AGENCY
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION
A/SLMR NO. 4
THE SUBJECT CASE INVOLVING A REPRESENTATION PETITION FILED BY LOCAL
1761, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, PRESENTED THE QUESTION
WHETHER A UNIT CONSISTING OF ALL NONSUPERVISORY GENERAL SCHEDULE AND
WAGE BOARD EMPLOYEES WORKING IN THE ACTIVITY'S ATLANTA FIELD OPERATIONS
BRANCH OFFICE IS APPROPRIATE.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
PETITIONED FOR UNIT WAS NOT APPROPRIATE. IN REACHING THIS
DETERMINATION, THE ASSISTANT SECRETARY RELIED ON THE FACT THAT THERE HAD
BEEN SUBSTANTIAL TRANSFERRING OF EMPLOYEES INTO AND OUT OF THE CLAIMED
UNIT TO OTHER SUBDIVISIONS OF THE ACTIVITY'S REGION, AND THAT THE
ACTIVITY HAD ESTABLISHED AN AREA OF CONSIDERATION FOR PROMOTIONAL
OPPORTUNITIES FOR MOST OF THE EMPLOYEES IN THE PETITIONED FOR UNIT ON A
BROAD DIVISION-WIDE RATHER THAN ON A BRANCH-WIDE BASIS. ALSO, HE VIEWED
AS PARTICULARLY RELEVANT THE FACT THAT THE EMPLOYEES IN THE CLAIMED UNIT
PERFORMED FUNCTIONS IDENTICAL TO THOSE PERFORMED BY SIMILARLY SITUATED
EMPLOYEES THROUGHOUT THE ACTIVITY'S REGION.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
EMPLOYEES IN THE UNIT SOUGHT BY THE PETITIONER DID NOT POSSESS A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST AND, ACCORDINGLY, HE ORDERED THAT
THE PETITION BE DISMISSED.
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION
SERVICES REGION /1/ (DCASR),
ATLANTA, GEORGIA
AND
LOCAL 1761, NATIONAL FEDERATION
OF /2/ FEDERAL EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER SEYMOUR X. ALSHER. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. NO QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. PETITIONER, LOCAL 1761, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL NONSUPERVISORY
WAGE BOARD AND GENERAL SCHEDULE EMPLOYEES EMPLOYED BY THE ACTIVITY'S
ATLANTA FIELD OPERATIONS BRANCH LOCATED IN FOREST PARK, GEORGIA;
CORDELE, GEORGIA; AND /3/ COLUMBIA, SOUTH CAROLINA. THE DEFENSE
CONTRACT ADMINISTRATION SERVICES REGION (DCASR), ATLANTA, GEORGIA,
HEREIN CALLED THE ACTIVITY, CONTENDS THAT THE CLAIMED UNIT IS
INAPPROPRIATE BECAUSE IT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF OPERATIONS.
THE ACTIVITY ADMINISTERS THE PROCUREMENT AND DISTRIBUTION OF GOODS
FOR THE DEPARTMENT OF DEFENSE AND OTHER FEDERAL AGENCIES THROUGHOUT THE
SEVEN SOUTH-EASTERN STATES AND THE CARIBBEAN. CURRENTLY, THERE ARE
APPROXIMATELY 1500 EMPLOYEES EMPLOYED IN THE ACTIVITY'S REGION. THE
ACTIVITY'S REGIONAL OFFICE, LOCATED IN ATLANTA, GEORGIA, IS SUBDIVIDED,
FUNCTIONALLY, INTO SEVERAL OFFICES AND DIRECTORATES. ONE OF THESE
DIRECTORATES, THE DIRECTORATE OF QUALITY ASSURANCE IS DIVIDED INTO
SEVERAL DIVISIONS. THE OPERATIONS DIVISION OF THIS DIRECTORATE IS
SUBDIVIDED, GEOGRAPHICALLY, INTO THREE MAIN OPERATIONAL DIVISIONS
LOCATED AT BIRMINGHAM, ALABAMA; ORLANDO, FLORIDA; AND ATLANTA,
GEORGIA. THE RECORD DISCLOSES THAT EACH OF THE THREE OPERATIONAL
DIVISIONS PERFORM SUBSTANTIALLY IDENTICAL FUNCTIONS.
THE ATLANTA OPERATIONS DIVISION IS SUBDIVIDED INTO FIVE FIELD
OPERATIONS /4/ BRANCHES. THE ATLANTA FIELD OPERATIONS BRANCH, WHICH
CONTAINS ALL OF THE PETITIONED FOR EMPLOYEES, ENCOMPASSES THE ENTIRE
STATE OF GEORGIA AND PART OF SOUTH CAROLINA. IT, IN TURN, IS DIVIDED
INTO FOUR SECTIONS. SECTIONS ONE AND TWO ARE LOCATED AT THE BRANCH
OFFICE AT THE ATLANTA ARMY DEPOT, FOREST PARK, GEORGIA. SECTION THREE
IS LOCATED AT CORDELE, GEORGIA, APPROXIMATELY 100 MILES FROM THE BRANCH
OFFICE IN FOREST PARK. SECTION FOUR IS LOCATED AT COLUMBIA, SOUTH
CAROLINA, SOME 230 MILES FROM THE FOREST PARK BRANCH OFFICE.
THERE ARE THIRTY-NINE QUALITY ASSURANCE REPRESENTATIVES AND FOUR
CLERICAL EMPLOYEES IN THE CLAIMED /5/ UNIT. QUALITY ASSURANCE
REPRESENTATIVES ARE RESPONSIBLE FOR INSURING THAT THE QUALITY OF
COMMODITIES PRODUCED BY A CONTRACTOR COMPLIES WITH THE STANDARDS
OUTLINED IN THE PROCUREMENT CONTRACT. THESE REPRESENTATIVES OFTEN ARE
REQUIRED TO TRAVEL TO A CONTRACTOR'S PLANT FOR THE PURPOSE OF INSPECTING
THE COMMODITIES INVOLVED AND, DEPENDING ON THE TYPE OF COMMODITY
PRODUCED, A REPRESENTATIVE MIGHT TRAVEL FROM HIS ASSIGNED SECTION INTO
THE GEOGRAPHIC AREA OF ANOTHER SECTION.
THE ATLANTA OPERATIONS DIVISION HAS APPROXIMATELY 150 EMPLOYEES. THE
EMPLOYEES ASSIGNED TO THE BRANCHES WITHIN THIS DIVISION, INCLUDING THE
ATLANTA FIELD OPERATIONS BRANCH, PERFORM ESSENTIALLY THE SAME FUNCTIONS.
THERE IS ONE CENTRAL PERSONNEL OFFICE LOCATED WITHIN THE REGIONAL
OFFICE AT ATLANTA, GEORGIA. SUCH MATTERS AS REDUCTIONS IN FORCE,
PROMOTION POLICIES, AND CLASSIFICATION DESIGNATIONS ORIGINATE FROM THIS
OFFICE. FURTHER, THE ULTIMATE AUTHORITY TO NEGOTIATE OR BARGAIN WITH A
LABOR ORGANIZATION IS EXERCISED BY THE ACTIVITY'S REGIONAL COMMANDER,
WHO IS A COMMISSIONED OFFICER IN ONE OF THE BRANCHES OF THE ARMED
FORCES.
THE REGIONAL PERSONNEL OFFICE COMPILES REGISTERS OF ELIGIBLE
APPLICANTS FOR EMPLOYMENT WHICH ARE CIRCULATED TO ALL SUPERVISORS WITHIN
THE REGION INCLUDING THE SUPERVISORS OF THE FOUR SECTIONS OF THE ATLANTA
FIELD OPERATIONS /6/ BRANCH. THESE SECTION CHIEFS HAVE THE AUTHORITY TO
MAKE THE FINAL DETERMINATION WHETHER TO HIRE A PARTICULAR APPLICANT ON
THE REGISTER. THEY ALSO ARE RESPONSIBLE FOR THE DAY-TO-DAY DIRECTION OF
ALL EMPLOYEES WITHIN THEIR ASSIGNED SECTION AND HAVE THE AUTHORITY TO
SETTLE GRIEVANCES AT THEIR INITIAL STAGES.
THE ACTIVITY HAS ESTABLISHED AN AREA OF CONSIDERATION FOR PROMOTIONAL
OPPORTUNITIES FOR GRADES GS-12 AND ABOVE THROUGHOUT THE ENTIRE REGION.
THE AREA OF CONSIDERATION FOR GRADES GS-6 THROUGH GS-11 IS ON A
DIVISION-WIDE BASIS AND THE COMPETITIVE AREA FOR GRADES GS-5 AND BELOW
IS WITHIN THE PARTICULAR COMMUNITY IN WHICH THE EMPLOYEE IS ASSIGNED.
THE EVIDENCE ESTABLISHED THAT FOR FISCAL YEAR 1970 NINE EMPLOYEES IN THE
ATLANTA FIELD OPERATIONS BRANCH TRANSFERRED TO OTHER BRANCHES WITHIN THE
ATLANTA OPERATIONS DIVISION. ADDITIONALLY, AT LEAST TWO EMPLOYEES
TRANSFERRED INTO THE ATLANTA FIELD OPERATIONS BRANCH FROM OTHER BRANCHES
WITHIN THE ATLANTA /7/ OPERATIONS DIVISION.
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE NFFE DOES
NOT CONSTITUTE AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491. THE RECORD REVEALS THAT THERE
IS SUBSTANTIAL TRANSFERRING OF EMPLOYEES IN THE PETITIONED FOR UNIT TO
OTHER BRANCHES WITHIN THE ATLANTA OPERATIONS DIVISION. ALSO, THE AREA
FOR CONSIDERATION FOR PROMOTIONAL OPPORTUNITIES FOR A MAJORITY OF THE
EMPLOYEES IN THE CLAIMED UNIT IS ON A DIVISION-WIDE BASIS AND IS NOT
CONFINED SOLELY TO THE AREA ENCOMPASSED BY THE ATLANTA FIELD OPERATIONS
BRANCH. IN THESE CIRCUMSTANCES AND NOTING THE FACT THAT SIMILARLY
SITUATED EMPLOYEES PERFORMING IDENTICAL JOB FUNCTIONS IN THE ATLANTA
OPERATIONS DIVISION ARE NOT INCLUDED IN THE CLAIMED UNIT, I FIND THAT
THE UNIT SOUGHT BY THE NFFE IS NOT APPROPRIATE. ACCORDINGLY, SINCE I
FIND THAT THE EMPLOYEES IN THE REQUESTED UNIT DO NOT POSSESS A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST, I SHALL DISMISS THE PETITION HEREIN.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 40-2009(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 15, 1971
/1/ THE NAMES OF THE AGENCY AND ACTIVITY APPEAR AS AMENDED AT THE
HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ THE PETITIONER'S CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/4/ THESE BRANCHES ARE LOCATED IN ATLANTA, GEORGIA; AVCO,
CHARLESTON, SOUTH CAROLINA; CHARLOTTE, NORTH CAROLINA; CONDEC,
CHARLOTTE, NORTH CAROLINA; AND KNOXVILLE, TENNESSEE.
/5/ CURRENTLY THERE ARE NO WAGE BOARD EMPLOYEES IN THE PETITIONED FOR
UNIT.
/6/ THE PARTIES STIPULATED THAT THESE SECTION CHIEFS WERE
"SUPERVISORS" WITHIN THE MEANING OF SECTION 2(C) OF EXECUTIVE ORDER
11491.
/7/ TWO OTHER EMPLOYEES TRANSFERRED INTO THE ATLANTA FIELD OPERATIONS
BRANCH FROM BRANCHES OUTSIDE THE ATLANTA OPERATIONS DIVISION.
1 A/SLMR 3; P. 42; CASE NOS. 40-1930(RO), 40-1948(RO); DECEMBER
29, 1970.
THE VETERANS ADMINISTRATION HOSPITAL, AUGUSTA
A/SLMR NO. 3
THIS CASE, WHICH AROSE AS A RESULT OF REPRESENTATION PETITIONS FILED
BY TWO LABOR ORGANIZATIONS, THE GEORGIA STATE NURSES ASSOCIATION,
AMERICAN NURSES ASSOCIATION, (GSNA) AND THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 217, AFL-CIO, (AFGE) PRESENTED A QUESTION AS
TO THE COMPOSITION OF A UNIT OF REGISTERED NURSES FOR PURPOSES OF
EXCLUSIVE RECOGNITION.
THE GSNA REQUESTED A UNIT OF NURSES INCLUDING ALL STAFF NURSES, NURSE
INSTRUCTORS, HEAD NURSES, NURSE ANESTHETISTS, AND THE CLINICAL
COORDINATOR AT THE VETERANS ADMINISTRATION HOSPITAL, AUGUSTA. THE AFGE
REQUESTED A UNIT OF STAFF NURSES AND NURSE INSTRUCTORS. THE ACTIVITY
OPPOSED THE INCLUSION OF HEAD NURSES, NURSE ANESTHETISTS, AND THE
CLINICAL COORDINATOR IN THE CLAIMED UNIT ON THE BASIS THAT HEAD NURSES
ARE "SUPERVISORS" WITHIN THE MEANING OF THE ORDER, THAT NURSE
ANESTHETISTS DO NOT HAVE A COMMUNITY OF INTEREST WITH STAFF NURSES, AND
THAT THE CLINICAL COORDINATOR POSITION IS ONE OF "MANAGERIAL EXTENSION."
WITH RESPECT TO THE HEAD NURSES, THE ASSISTANT SECRETARY FOUND THAT
THEY WERE "SUPERVISORS" WITHIN THE MEANING OF EXECUTIVE ORDER 11491 AND
SHOULD BE EXCLUDED FROM THE PETITIONED FOR UNIT INASMUCH AS THEY
RESPONSIBLY DIRECTED THE WORK OF WARD EMPLOYEES BY PLANNING THE GOALS
AND OBJECTIVES OF THE WARD, ASSIGNING SUBORDINATE NURSING PERSONNEL TO
TEAMS AND TOURS OF DUTY, DESIGNATING DUTIES OF TEAM LEADERS AND TEAM
PERSONNEL AND DESIGNATING PATIENTS TO RESPECTIVE TEAMS FOR CARE. THE
ASSISTANT SECRETARY NOTED THAT IN THE EXERCISE OF AUTHORITY, THE HEAD
NURSE USED INDEPENDENT JUDGMENT AND IN THIS RESPECT DIFFERED FROM THE
PERMANENT EVENING OR NIGHT STAFF NURSE WHO PERFORMED DUTIES, EXCEPT ON
RARE OCCASIONS, SOLELY WITHIN THE PLAN ESTABLISHED BY THE HEAD NURSE FOR
PROVIDING SAFE NURSING CARE ON A 24-HOUR BASIS WITHIN THE PARTICULAR
WARD. IN REACHING HIS DETERMINATION, THE ASSISTANT SECRETARY ALSO NOTED
THE HEAD NURSE'S ROLE IN EVALUATING THE PERFORMANCE OF STAFF NURSES.
THE ASSISTANT SECRETARY CONCLUDED THAT NURSE ANESTHETISTS DID NOT
HAVE A COMMUNITY OF INTEREST WITH STAFF NURSES SO AS TO WARRANT THEIR
INCLUSION IN A UNIT OF STAFF NURSES IN THIS CASE. HE NOTED THAT THE
SKILLS AND EDUCATION OF NURSE ANESTHETISTS DIFFERED FROM THOSE OF STAFF
NURSES, THAT THEIR WORK SITE WAS CONFINED TO THE OPERATING ROOM AREA
RATHER THAN THE WARD, THAT THEY DID NOT SHARE COMMON SUPERVISION WITH
STAFF NURSES, AND THAT THEIR PROMOTIONAL LADDER WAS DIFFERENT FROM THAT
OF STAFF NURSES.
WITH REGARD TO THE CLINICAL COORDINATOR, THE ASSISTANT SECRETARY
FOUND THAT ALTHOUGH THIS POSITION DID NOT FALL WITHIN THE DEFINITION OF
"SUPERVISOR", THE EVIDENCE ESTABLISHED THAT THE EMPLOYEE IN THIS
CLASSIFICATION CONSTITUTED A "MANAGEMENT OFFICIAL" WITHIN THE MEANING OF
THE ORDER AND, ACCORDINGLY, SHOULD BE EXCLUDED FROM THE PETITIONED FOR
UNIT. THE ASSISTANT SECRETARY DETERMINED IN THIS REGARD THAT THE
ASSIGNED FUNCTIONS (WHICH INCLUDE ASSISTING THE HEAD NURSE IN
CONTROLLING, DIRECTING, COORDINATING AND EVALUATING SUCH MATTERS AT
STANDARDS OF NURSING SKILLS, IMPLEMENTATION OF NEW TECHNIQUES AND
ADVISING THE CHIEF NURSE ON CLINICAL ASPECTS OF THE NURSING PROGRAM AND
ON DIRECTIONS, CHANGES AND IMPROVEMENTS THEREIN) PLACED THE INTERESTS OF
THE CLINICAL COORDINATOR MORE CLOSELY WITH PERSONNEL WHO FORMULATE,
DETERMINE AND OVERSEE HOSPITAL POLICY THAN WITH PERSONNEL IN THE
PROPOSED UNIT WHO CARRY OUT THE RESULTANT POLICY.
A/SLMR NO. 3
THE VETERANS ADMINISTRATION HOSPITAL, /1/ AUGUSTA
AND
GEORGIA STATE NURSES ASSOCIATION, AMERICAN NURSES ASSOCIATION
THE VETERANS ADMINISTRATION HOSPITAL, AUGUSTA
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 217, /2/ AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM D. SEXTON.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. IN CASE NO. 40-1930(RO), PETITIONER, GEORGIA STATE NURSES
ASSOCIATION, AMERICAN NURSES ASSOCIATION, HEREIN CALLED GSNA, SEEKS AN
ELECTION IN A UNIT OF ALL STAFF NURSES, NURSE INSTRUCTORS, HEAD NURSES,
NURSE ANESTHETISTS AND THE CLINICAL COORDINATOR AT THE VETERANS
ADMINISTRATION HOSPITAL, AUGUSTA.
IN CASE NO. 40-1948(RO), PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 217, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN
ELECTION IN A UNIT OF STAFF NURSES AND NURSE INSTRUCTORS AT THE VETERANS
ADMINISTRATION HOSPITAL, AUGUSTA.
THE ACTIVITY CONTENDS THAT HEAD NURSES ARE SUPERVISORS WITHIN THE
MEANING OF THE ORDER, THAT NURSE ANESTHETISTS DO NOT HAVE A COMMUNITY OF
INTEREST WITH STAFF NURSES, THAT THE POSITION OF CLINICAL COORDINATOR IS
ONE OF "MANAGERIAL EXTENSION", AND THEREFORE THESE POSITIONS SHOULD BE
EXCLUDED FROM A UNIT DETERMINED TO BE APPROPRIATE.
THE VETERANS ADMINISTRATION HOSPITAL, AUGUSTA, GEORGIA IS COMPRISED
OF 2 PHYSICAL PLANTS, NAMELY: THE LINWOOD DIVISION WHICH IS STAFFED AND
EQUIPPED PRIMARILY TO HANDLE NEURO-PSYCHIATRIC PATENTS, AND THE FOREST
HILLS DIVISION WHICH IS STAFFED AND EQUIPPED TO HANDLE GENERAL MEDICAL
AND SURGICAL PATIENTS. EACH DIVISION HAS ITS OWN CHIEF OF STAFF, WHO
REPORTS TO THE HOSPITAL DIRECTOR. TOTAL EMPLOYMENT AT THE HOSPITAL,
INCLUDING ALL OF THE VARIOUS SERVICES IN BOTH DIVISIONS, AMOUNTS TO
1,090 FULL-TIME EMPLOYEES AND ABOUT 200 TEMPORARY OR PART-TIME
EMPLOYEES. IN THE NURSING SERVICE AT LINWOOD ABOUT 300 NURSING
PERSONNEL ARE EMPLOYED OF WHICH 21 ARE HEAD NURSES AND 41 ARE STAFF
NURSES; IN THE FOREST HILLS NURSING SERVICE NURSING PERSONNEL NUMBER
180 OF WHICH 8 ARE HEAD NURSES AND 61 ARE STAFF NURSES. ADDITIONAL
NURSING PERSONNEL, NOT INCLUDED IN THE UNITS BEING SOUGHT, CONSISTS OF
LICENSED PRACTICAL NURSES AND NURSING ASSISTANTS.
THE NURSING SERVICE AT LINWOOD HAS 1,000 BEDS WHICH ARE DISTRIBUTED
AMONG 6 PSYCHIATRIC UNITS. EACH OF THE UNITS IS COMPRISED OF 2 OR MORE
WARDS FOR A TOTAL OF 21 WARDS. A HEAD NURSE IS IN CHARGE OF EACH WARD
AND REPORTS TO THE NURSE COORDINATOR (A POSITION DISTINCT FROM "CLINICAL
COORDINATOR") IN CHARGE OF THE PARTICULAR MULTI-WARD UNIT. THE NURSE
COORDINATOR REPORTS TO THE ASSISTANT CHIEF, NURSING SERVICE WHO IN TURN
REPORTS TO THE CHIEF, NURSING SERVICE.
AT FOREST HILLS, THE NURSING SERVICE HAS 323 BEDS. THERE IS A
SURGICAL SECTION COMPRISED OF 2 WARDS, A MEDICAL SECTION COMPRISED OF 4
WARDS, THE OPERATING ROOM AND RECOVERY ROOM SECTION, AND AN ADMISSION
AND OUTPATIENT SECTION. EACH WARD HAS A HEAD NURSE IN CHARGE WHO
REPORTS TO THE ASSISTANT CHIEF, NURSING SERVICE, WHO REPORTS TO THE
CHIEF, NURSING SERVICE.
THE NURSING SERVICE AT BOTH DIVISIONS OPERATES ON THREE SHIFTS. THE
CHIEF, NURSING SERVICE AT LINWOOD AND FOREST HILLS, IS IN CHARGE OF THE
ADMINISTRATION OF THE ENTIRE NURSING SERVICE PROGRAM IN THE RESPECTIVE
DIVISIONS. IMMEDIATELY UNDER THE CHIEF ARE THE ASSISTANT CHIEF (DAY,
EVENING, NIGHT), AND THE ASSOCIATE CHIEF FOR EDUCATION. AT LINWOOD,
NURSE COORDINATORS REPORT TO THE ASSISTANT CHIEF, AND HEAD NURSES TO THE
NURSE COORDINATOR. THERE ARE NO NURSE COORDINATORS IN THE FOREST HILLS
DIVISION AND THEREFORE HEAD NURSES REPORT TO THE ASSISTANT CHIEF.
THE CONCEPT OF TEAM NURSING PREVAILS IN BOTH DIVISIONS. UNDER THIS
CONCEPT, WARD PERSONNEL ARE ASSIGNED TO TEAMS UNDER THE LEADERSHIP OF A
DESIGNATED TEAM LEADER WHO IS A STAFF NURSE.
WITH RESPECT TO HISTORY OF BARGAINING, THE RECORD REVEALS NO PRIOR
GRANT OF EXCLUSIVE RECOGNITION COVERING A UNIT OF NURSES AT THE VA
HOSPITAL IN AUGUSTA.
TESTIMONY INDICATES THAT THE HEAD NURSE HAS ADMINISTRATIVE AND
CLINICAL RESPONSIBILITY FOR PROVIDING CONTINUITY OF NURSING CARE ON A
24-HOUR BASIS, ASSIGNS WARD STAFF TO TEAMS, ASSIGNS TOURS OF DUTY,
DESIGNATES THE TEAM LEADERS, SPECIFIES PROFESSIONAL DUTIES OF THE TEAM
LEADER AS WELL AS DUTIES OF NURSING ASSISTANTS, AND ASSIGNS PATIENTS TO
A TEAM FOR CARE. IN ADDITION, THE HEAD NURSE DEVELOPS GOALS AND
OBJECTIVES FOR THE UNIT, PREPARES THE YEARLY LEAVE SCHEDULE FOR THE
UNIT, AND PROVIDES FOR STAFF DEVELOPMENT THROUGH ORIENTATION AND
IN-SERVICE TRAINING PROGRAMS TO MEET INDIVIDUAL AND GROUP STAFF NEEDS.
THE HEAD NURSE ALSO ROTATES PERSONNEL FROM ONE TOUR TO ANOTHER AS
NECESSARY AND APPROVES LEAVE REQUESTS.
TYPICALLY THE TOUR OF DUTY FOR THE HEAD NURSE IS THE DAY TOUR. THE
RECORD DISCLOSES THAT A PERMANENT EVENING OR NIGHT STAFF NURSE, WHO IS
ASSIGNED RESPONSIBILITY FOR THE WARD'S OPERATION ON THE EVENING AND
NIGHT TOURS, OPERATES THE UNIT WITHIN THE FRAMEWORK OF THE OVERALL PLAN
ESTABLISHED BY THE HEAD NURSE FOR PROVIDING NURSING CARE. CONTROL OF
THE WARD'S 24-HOUR OPERATION IS MAINTAINED BY THE HEAD NURSE THROUGH
MEETINGS HELD WITH THE ONCOMING EVENING SHIFT TO DISCUSS CONDITION OF
PATIENTS, GIVE INSTRUCTIONS ON TREATMENTS TO BE ADMINISTERED, AND
COMMUNICATE OTHER INFORMATION RELATED TO THE HOSPITAL'S ADMINISTRATION.
CONTACT WITH THE NIGHT SHIFT IS MAINTAINED THROUGH SIMILAR MEETINGS HELD
IN THE MORNING WITH THE OFF-GOING NIGHT PERSONNEL TO RECEIVE REPORTS ON
EVENING AND NIGHT TOUR ACTIVITIES AND THE CONDITION OF PATIENTS. HEAD
NURSES ARE RELIEVED ON WEEKENDS AND FOR VACATIONS BY STAFF NURSES.
DURING SUCH PERIODS, ACCORDING TO THE RECORD, THE STAFF NURSE DOES NOT
ASSUME THE OVERALL PLANNING FUNCTION OF THE HEAD NURSE AND DOES NOT
CHANGE THE EMPHASIS OF THE PROGRAM ESTABLISHED BY THE HEAD NURSE.
THE RECORD REVEALS THAT THE HEAD NURSE MAY SPEND 2-3 HOURS A DAY AT
THE DESK PERFORMING ADMINISTRATIVE FUNCTIONS. THE REMAINDER OF THE TIME
MAY BE SPENT IN MAKING ROUNDS WITH THE DOCTOR, DISPENSING MEDICATION,
OCCASIONALLY PERFORMING STAFF DUTY FLOOR WORK, AND RESOLVING
ADMINISTRATIVE AND CLINICAL PROBLEMS WHICH ARISE. IN ADDITION, THE HEAD
NURSE ATTENDS PERIODIC MEETINGS WITH HIGHER SUPERVISORY PERSONNEL, AS
WELL AS MEETINGS WITH OTHER HEAD NURSES AND SUBORDINATE PERSONNEL.
THE HEAD NURSE MAKES AN ANNUAL PROFICIENCY RATING ON EACH WARD STAFF
NURSE, AND GENERALLY ON DAY TOUR NURSING ASSISTANTS. THE PERMANENT
EVENING OR NIGHT TOUR STAFF NURSE RATES THE NURSING ASSISTANTS. THE
OUTCOME OF THESE RATINGS MAY SERVE AS A BASIS FOR PROMOTION OR
DISCIPLINARY ACTION. TESTIMONY INDICATES THAT WHILE HIGHER LEVELS OF
SUPERVISION HAVE THE AUTHORITY TO CHANGE THE RATER'S EVALUATION,
ORDINARILY THIS EVALUATION IS ENDORSED BY THE APPROVING OFFICIAL. THE
RECORD INDICATES THAT THE NURSE'S PROFICIENCY RATING IS ONE OF THE
FACTORS CONSIDERED BY THE NURSE PROFESSIONAL STANDARDS BOARD IN
CONSIDERING AND RECOMMENDING PROMOTIONS.
THE RECORD CONTAINS SEVERAL EXAMPLES WHERE RECOMMENDATIONS FOR AWARDS
WERE INITIATED BY HEAD NURSES AND STAFF NURSES. SUCH RECOMMENDATIONS
PASS THROUGH SUCCESSIVE LEVELS OF HIGHER SUPERVISION FOR ENDORSEMENT,
AND IF CONCURRED IN, ARE SENT TO THE FINAL APPROVING AUTHORITY. ALSO,
TESTIMONY REVEALS THAT GRIEVANCES, SUCH AS THOSE CONCERNING DAYS OFF,
TOUR ASSIGNMENTS AND THE LIKE, ARE TAKEN UP WITH THE HEAD NURSE BY WARD
PERSONNEL, AND IN GENERAL ARE RESOLVED AT THE WARD LEVEL.
HEAD NURSES DO NOT ALWAYS RECEIVE A HIGHER SALARY THAN STAFF NURSES.
ALL REGISTERED NURSES ARE UNDER THE SAME PAY SYSTEM AND THEIR LEVEL OF
PAY IS DETERMINED BY GRADE. THUS, A HEAD NURSE CAN, AND IN SOME CASES
DOES, RECEIVE LESS SALARY THAN A SUBORDINATE STAFF NURSE IN THE SAME
UNIT.
BASED ON THE FOREGOING, I FIND THAT THE HEAD NURSES ARE "SUPERVISORS"
WITHIN THE MEANING OF THE ORDER INASMUCH AS THE HEAD NURSE RESPONSIBLY
DIRECTS THE WORK OF WARD EMPLOYEES BY PLANNING THE GOALS AND OBJECTIVES
OF THE WARD, ASSIGNING SUBORDINATE NURSING PERSONNEL TO TEAMS AND TOURS
OF DUTY, DESIGNATING DUTIES OF THE TEAM LEADER AND TEAM PERSONNEL, AND
ASSIGNING PATIENTS TO RESPECTIVE TEAMS FOR CARE. ALSO, IT APPEARS THAT
IN THE EXERCISE OF AUTHORITY THE HEAD NURSE USES INDEPENDENT JUDGMENT
AND IN THIS RESPECT DIFFERS FROM THE PERMANENT EVENING OR NIGHT STAFF
NURSE WHO PERFORMS ASSIGNED DUTIES, EXCEPT ON RARE OCCASIONS, SOLELY
WITHIN THE PLAN ESTABLISHED BY THE HEAD NURSE FOR PROVIDING SAFE NURSING
CARE ON A 24-HOUR BASIS. IN THESE CIRCUMSTANCES AND NOTING ALSO THE
HEAD NURSE'S ROLE IN EVALUATING THE PERFORMANCE OF STAFF NURSES, I
CONCLUDE THAT THIS CLASSIFICATION OF EMPLOYEES SHOULD BE EXCLUDED FROM
THE PETITIONED FOR UNIT.
NURSE ANESTHETISTS ARE EMPLOYED ONLY IN THE FOREST HILLS DIVISION,
ARE ASSIGNED TO THE SURGICAL SERVICE, WORK ONLY IN THE OPERATING ROOM
AND ARE NOT A PART OF THE NURSING SERVICE. THEY ARE UNDER THE
SUPERVISION OF THE CHIEF ANESTHETIST, WHOSE DIRECT SUPERVISOR IS THE
CHIEF OF SURGERY, WHO REPORTS TO THE CHIEF OF STAFF. WHILE NURSE
ANESTHETISTS ARE REGISTERED NURSES, TO QUALIFY AS AN ANESTHETIST, THEY
MUST COMPLETE TRAINING IN A CERTIFIED SCHOOL OF ANESTHESIOLOGY. THEY DO
NOT PERFORM WORK SIMILAR TO THAT OF STAFF NURSES, NOR IS THERE ANY
INTERCHANGE BETWEEN STAFF NURSES IN THE NURSING SERVICE AND NURSE
ANESTHETISTS IN THE SURGICAL SERVICE. THE STARTING SALARY AND GRADE FOR
NURSE ANESTHETISTS IS HIGHER THAN THAT OF REGULAR BEGINNING REGISTERED
NURSES AND THEIR PROFESSIONAL COMPETENCE WITH RESPECT TO PROMOTIONS IS
EVALUATED BY THE ANESTHETIST AND PHYSICIAN PROFESSIONAL STANDARDS BOARD
AS DISTINGUISHED FROM NURSE PROFESSIONAL STANDARDS BOARD WHICH EVALUATES
THE COMPETENCE OF REGISTERED NURSES IN THE NURSING SERVICE. THE RECORD
DEMONSTRATES THAT THE SKILLS AND EDUCATION OF NURSE ANESTHETISTS DIFFER
FROM THOSE OF STAFF NURSES, THAT THEIR WORK SITE IS CONFINED TO THE
OPERATING ROOM AREA RATHER THAN THE WARD, THAT THEY DO NOT SHARE COMMON
SUPERVISION WITH STAFF NURSES, AND THAT THEIR PROMOTIONAL LADDER IS
DIFFERENT FROM THAT OF STAFF NURSES.
IN VIEW OF THE FOREGOING, I FIND THAT NURSE ANESTHETISTS DO NOT HAVE
A COMMUNITY OF INTEREST WITH STAFF NURSES AND SHOULD THEREFORE BE
EXCLUDED FROM THE PETITIONED FOR UNIT.
THE RECORD REVEALS THAT THE CLINICAL COORDINATOR IS A NEWLY
ESTABLISHED POSITION AND EXISTS ONLY IN THE FOREST HILLS DIVISION
NURSING SERVICE. THE FUNCTIONS OF THE CLINICAL COORDINATOR ARE TO
ASSIST THE HEAD NURSE IN PLANNING, CONTROLLING, DIRECTING, COORDINATING
AND EVALUATING SUCH MATTERS AS: STANDARDS OF CLINICAL PRACTICE, QUALITY
AND QUANTITY OF NURSING CARE, DEVELOPMENT OF NURSING SKILLS, AND
IMPLEMENTATION OF NEW TECHNIQUES. TESTIMONY INDICATES THAT THE CLINICAL
COORDINATOR VISITS THE WARDS AND ASSISTS THE HEAD NURSE IN DEVELOPING
NURSING CARE PLANS FOR THE ENTIRE WARD.
THE CLINICAL COORDINATOR ADVISES THE CHIEF NURSE ON CLINICAL ASPECTS
OF THE NURSING PROGRAM, AND ON DIRECTIONS, CHANGES AND IMPROVEMENTS. NO
ADMINISTRATIVE OR SUPERVISORY DUTIES ARE PERFORMED BY THE CLINICAL
COORDINATOR. HOWEVER, THE COORDINATOR REGULARLY ATTENDS THE NURSING
SERVICE ADMINISTRATIVE STAFF MEETINGS COMPOSED OF TOP SUPERVISORY
PERSONNEL SUCH AS THE CHIEF NURSE AND ASSISTANT CHIEF NURSES.
ALTHOUGH, BASED ON THE FOREGOING, THE RECORD ESTABLISHED THAT THE
CLINICAL COORDINATOR IS NOT A SUPERVISOR, I FIND THAT A COMMUNITY OF
INTEREST BETWEEN THE CLINICAL COORDINATOR AND NONSUPERVISORY NURSES DOES
NOT EXIST. RATHER, THE RECORD INDICATES THAT THE FUNCTIONS ASSIGNED THE
CLINICAL COORDINATOR /3/ PLACE THE INTERESTS OF AN EMPLOYEE IN THIS
CLASSIFICATION MORE CLOSELY WITH PERSONNEL WHO FORMULATE, DETERMINE AND
OVERSEE HOSPITAL POLICY THAN WITH PERSONNEL IN THE PROPOSED UNIT WHO
CARRY OUT THE RESULTANT POLICY. ACCORDINGLY, I FIND THAT THE CLINICAL
COORDINATOR IS A "MANAGEMENT OFFICIAL" WITHIN THE MEANING OF THE ORDER
AND AS SUCH MUST BE EXCLUDED FROM THE PROPOSED UNIT.
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES SOUGHT BY
BOTH PETITIONERS CONSTITUTE A UNIT APPROPRIATE FOR PURPOSES OF EXCLUSIVE
RECOGNITION WITHIN THE MEANING OF SECTION 10(B) OF EXECUTIVE ORDER
11491:
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY GEORGIA STATE NURSES ASSOCIATION,
AMERICAN NURSES ASSOCIATION; OR BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 217, AFL-CIO; OR BY NEITHER.
DATED, WASHINGTON, D.C.:
DECEMBER 29, 1970
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ SUCH FUNCTIONS INCLUDE ASSISTING THE HEAD NURSE IN CONTROLLING,
DIRECTING, COORDINATING AND EVALUATING SUCH MATTERS AS STANDARDS OF
CLINICAL PRACTICE, QUALITY AND QUANTITY OF NURSING CARE, DEVELOPMENT OF
NURSING SKILLS, IMPLEMENTATION OF NEW TECHNIQUES AND ADVISING THE CHIEF
NURSE ON CLINICAL ASPECTS OF THE NURSING PROGRAM AND ON DIRECTIONS,
CHANGES AND IMPROVEMENTS THEREIN.
1 A/SLMR 2; P. 38; CASE NO. 31-3211(EO); DECEMBER 23, 1970.
PORTSMOUTH NAVAL SHIPYARD, APPRENTICE TRAINING SCHOOL
A/SLMR NO. 2
THE SUBJECT CASE, INVOLVING A REPRESENTATION PETITION FILED BY THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) SEEKING AN ELECTION
AMONG THE EMPLOYEES DESIGNATED AS TEACHERS IN THE APPRENTICE TRAINING
SCHOOL AT THE PORTSMOUTH NAVAL SHIPYARD, PRESENTED THE FOLLOWING
QUESTIONS:
(1) WHETHER THE TEACHERS WERE ENGAGED IN FEDERAL PERSONNEL WORK
WITHIN THE MEANING OF SECTION 10(B)(2) OF THE ORDER AND WERE THEREFORE
EXEMPT FROM THE COVERAGE OF THE ORDER?
(2) WHETHER THE UNIT SOUGHT BY THE NAGE COVERING THE TEACHERS IN THE
APPRENTICE TRAINING SCHOOL WAS APPROPRIATE OR WHETHER THE TEACHERS
BELONG PROPERLY IN THE EXISTING BARGAINING UNITS AT THE ACTIVITY
REPRESENTED EITHER BY THE AMERICAN FEDERATION OF TECHNICAL ENGINEERS.
LOCAL 4, AFL-CIO (AFTE) OR AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
EMPLOYEES, LOCAL 2024, AFL-CIO (AFGE)?
WITH RESPECT TO THE FIRST ISSUE, THE ASSISTANT SECRETARY CONCLUDED
THAT THE EMPLOYEES IN THE PETITIONED FOR UNIT DID NOT ENGAGE IN
PERSONNEL WORK WITHIN THE MEANING OF SECTION 10(B)(2) SINCE THEY DID NOT
DEVELOP THE TRAINING PROGRAM SET UP FOR APPRENTICES, NOR SELECT THE
REQUIRED COURSES FOR SUCH APPRENTICES. MOREOVER, THEY WERE NOT CONSULTED
BY MANAGEMENT WITH RESPECT TO MANPOWER OR SKILL NEEDS OF THE SHIPYARD OR
AS TO THE DEVELOPMENT OF EMPLOYEE POLICIES AND PROCEDURES. IN THESE
CIRCUMSTANCES, SINCE THE EVIDENCE ESTABLISHED THAT THE EMPLOYEES IN THE
CLAIMED UNIT WERE ENGAGED SOLELY IN TEACHING APPRENTICES, THE ASSISTANT
SECRETARY FOUND THAT THEY WERE NOT EXEMPTED FROM THE COVERAGE OF THE
ORDER.
WITH RESPECT TO THE SECOND ISSUE, THE ASSISTANT SECRETARY FOUND THAT
THE EMPLOYEES IN THE APPRENTICE TRAINING SCHOOL, WHO WERE CLASSIFIED AS
TEACHERS IN THE CIVIL SERVICE COMMISSION'S CLASSIFICATION SERIES
GS-1710, CONSTITUTED AN APPROPRIATE UNIT. HE NOTED PARTICULARLY THAT
ALL OF THE PETITIONED FOR EMPLOYEES TAUGHT APPRENTICES ACADEMIC COURSES,
HAD THE SAME EDUCATIONAL BACKGROUNDS, WERE CONSIDERED PROFESSIONAL
EMPLOYEES, TAUGHT IN THE SAME SEPARATE AREA, HAD THE SAME DUTIES, WERE
SUPERVISED BY THE SAME INDIVIDUAL, AND DID NOT INTERCHANGE WITH ANY
OTHER EMPLOYEES AT THE SHIPYARD. HE ALSO FOUND THE EVIDENCE ESTABLISHED
THAT AT NO TIME WERE THE EMPLOYEES IN THE CLAIMED UNIT REPRESENTED BY
THE AFTE OR THE AFGE.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DIRECTED AN ELECTION
BASED ON THE VIEW THAT THESE EMPLOYEES HAD A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND APART FROM OTHER EMPLOYEES AT THE
SHIPYARD INCLUDING THOSE REPRESENTED BY THE AFTE OR THE AFGE.
PORTSMOUTH NAVAL SHIPYARD, APPRENTICE TRAINING SCHOOL
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
AND
AMERICAN FEDERATION OF TECHNICAL ENGINEERS, LOCAL 4, AFL-CIO
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2024, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM O'LOUGHLIN. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. A QUESTION CONCERNING THE REPRESENTATION OF CERTAIN EMPLOYEES OF
THE ACTIVITY EXISTS WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER
11491.
3. NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, HEREIN CALLED THE
PETITIONER, SEEKS AN ELECTION IN A UNIT OF ALL TEACHERS AT THE
APPRENTICE TRAINING SCHOOL IN THE PORTSMOUTH NAVAL SHIPYARD.
THE ACTIVITY IS OF THE VIEW THAT THE EMPLOYEES SOUGHT BY THE
PETITIONER ARE PERSONNEL EMPLOYEES WITHIN THE MEANING OF SECTION
10(B)(2) OF THE ORDER AND THEREFORE ARE NOT ENTITLED TO EXCLUSIVE
RECOGNITION UNDER THE ORDER. IN THE ALTERNATIVE, IT CONTENDS, IN
AGREEMENT WITH THE INTERVENORS, THE AMERICAN FEDERATION OF TECHNICAL
ENGINEERS, /1/ LOCAL 4, AFL-CIO, HEREIN CALLED AFTE, AND THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2024, AFL-CIO, HEREIN CALLED
AFGE, THAT THE UNIT REQUESTED IS INAPPROPRIATE BECAUSE THE EMPLOYEES
SOUGHT BY THE PETITIONER SHOULD BE INCLUDED IN EITHER THE BARGAINING
UNIT THE AFTE REPRESENTS CURRENTLY OR THE BARGAINING UNIT THE AFGE
REPRESENTS CURRENTLY.
THE PORTSMOUTH NAVAL SHIPYARD, WHICH INCLUDES VARIOUS OFFICES,
DEPARTMENTS, DIVISIONS AND COMMITTEES, IS UNDER THE COMMAND OF A
SHIPYARD COMMANDER. THE INDUSTRIAL RELATIONS OFFICE IS RESPONSIBLE TO
THE COMMANDER FOR ORGANIZATION, ADMINISTRATION AND SUPERVISION OF THE
SHIPYARD'S INDUSTRIAL RELATIONS DEPARTMENT. WITHIN THE FRAMEWORK OF
THIS DEPARTMENT, IS THE TRAINING DIVISION WHICH CONTAINS, AMONG OTHERS,
THE MANAGEMENT DEVELOPMENT BRANCH, WHICH, IN TURN, EMPLOYS THE EMPLOYEES
COVERED BY THE PETITION.
WITH RESPECT TO THE BARGAINING HISTORY PRIOR TO THE FILING OF THE
PETITION,THE ACTIVITY ACCORDED EXCLUSIVE RECOGNITION TO THE AFTE FOR ALL
GRADED PROFESSIONAL AND NONPROFESSIONAL TECHNICAL EMPLOYEES IN THE
ENGINEERING SCIENCES AND ASSOCIATED FIELDS IN THE PORTSMOUTH NAVAL
SHIPYARD, EXCLUDING SUPERVISORS AND MANAGERIAL /2/ EXECUTIVES.
ALSO, PRIOR TO THE FILING OF THE PETITION, THE ACTIVITY ACCORDED
EXCLUSIVE RECOGNITION TO THE AFGE FOR "ALL GRADED UNPROFESSIONAL
EMPLOYEES OF THE PORTSMOUTH NAVAL SHIPYARD, EXCLUDING TECHNICAL AND
PROFESSIONAL EMPLOYEES, FIRE FIGHTERS, SECURITY GUARDS, GRADED
SUPERVISORS AT THE GS-9 LEVEL AND ABOVE AND EMPLOYEES IN PERSONNEL WORK
OTHER THAN IN A PURELY CLERICAL CAPACITY." THE ACTIVITY AND THE AFGE
EXECUTED A CONTRACT /3/ ON APRIL 22, 1968.
THE RECORD INDICATES THAT UNTIL 1969 NEITHER THE AFTE NOR THE AFGE
MADE ANY ATTEMPT TO REPRESENT THE PETITIONED FOR EMPLOYEES. IN THE
EARLY PART OF 1969, JAMES HUDSON, ONE OF THE EMPLOYEES IN THE CLAIMED
UNIT, APPLIED FOR A PROMOTION FROM HIS BRANCH TO ANOTHER AND WAS DENIED
SUCH PROMOTION ON THE GROUNDS THAT HE DID NOT MEET THE MINIMUM
EXPERIENCE REQUIREMENTS. AS A RESULT, THE TEACHERS DISCUSSED THIS
PROBLEM WITH BOTH THE AFTE AND THE AFGE REPRESENTATIVES. THE TWO LABOR
LABOR ORGANIZATIONS DECIDED THAT THE TEACHERS BELONGED PROPERLY WITHIN
THE AFTE'S UNIT AND ON MAY 20, 1969, THEY DOCUMENTED THIS AGREEMENT BY
EXECUTING A "MEMORANDUM OF UNDERSTANDING" WHICH WAS SUBMITTED TO THE
ACTIVITY'S INDUSTRIAL RELATIONS OFFICE. IN A REPLY TO THE LABOR
ORGANIZATIONS DATED JULY 8, 1969, THE ACTIVITY STATED THAT THE EMPLOYEES
INVOLVED "ARE EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A CLEARLY CLERICAL CAPACITY. THEREFORE, IN ACCORDANCE WITH SECTION 6 OF
EXECUTIVE ORDER 10988, IT IS NOT APPROPRIATE TO INCLUDE THESE EMPLOYEES
IN THE AFTE UNIT." NO FURTHER ACTION WAS TAKEN BY EITHER THE AFTE OR THE
AFGE CONCERNING REPRESENTATION OF THE EMPLOYEES IN THE CLAIMED UNIT.
WITH RESPECT TO THE CONTENTION THAT THE EMPLOYEES IN THE CLAIMED UNIT
ARE ENGAGED IN FEDERAL PERSONNEL WORK AND SHOULD THEREBY BE EXCLUDED
FROM THE COVERAGE OF THE ORDER, THE EVIDENCE ESTABLISHED THAT THE
EMPLOYEES SOUGHT TO BE REPRESENTED BY THE PETITIONER ARE CLASSIFIED AS
TEACHERS. THEY TEACH COURSES IN SCIENCE, MATHEMATICS, DRAFTING,
ENGLISH, AND BASIC ORGANIZATION AND MANAGEMENT CONCEPTS TO APPRENTICES
EMPLOYED BY THE SHIPYARD. EACH SHOP WITHIN THE SHIPYARD HAS A TRAINING
PLAN WHICH IS ASSIGNED BY THE SHOP AND THE HEAD OF THE TRAINING
DIVISION. THIS PLAN SETS UP A SEQUENCE OF REQUIRED COURSES FOR THE
APPRENTICES RELATED TO THE WORK TO BE PERFORMED BY THEM. ALTHOUGH THE
TEACHERS DETERMINE THE MOST EFFICIENT WAYS IN WHICH TO IMPLEMENT THE
PLANNED PROGRAM BY SELECTING THE TEXTS TO BE USED AND THE MANNER IN
WHICH THE COURSE IS PRESENTED, THE TRAINING PROGRAM IS DEVELOPED BY THE
EMPLOYEE DEVELOPMENT SPECIALISTS RATHER THAN BY THE TEACHERS. IT IS
CLEAR FROM THE RECORD THAT THE TEACHERS ARE NOT CONSULTED BY MANAGEMENT
WITH RESPECT TO IMMEDIATE OR LONG-RANGE MANPOWER OR SKILL NEEDS IN THE
SHIPYARD, OR AS TO THE DEVELOPMENT OF EMPLOYEE POLICIES AND PROCEDURES,
ALL OF WHICH FUNCTIONS FALL WITHIN THE CATEGORY /4/ OF PERSONNEL WORK.
BASED ON THE FOREGOING, IT IS CLEAR THAT THE EMPLOYEES IN THE CLAIMED
UNIT ARE ENGAGED SOLELY IN TEACHING APPRENTICES AND NOT IN FEDERAL
PERSONNEL WORK WITHIN THE MEANING OF SECTION 10(B)(2) OF THE EXECUTIVE
ORDER. ACCORDINGLY, I FIND THEIR EXCLUSION FROM COVERAGE OF THE ORDER
ON THIS BASIS TO BE UNWARRANTED.
I ALSO FIND THAT THE UNIT PETITIONED FOR IS APPROPRIATE. THE
EVIDENCE ESTABLISHES THAT THE TEACHERS ARE CLASSIFIED EMPLOYEES GRADED
AT THE GS-9 LEVEL, THAT THEIR REQUIRED ACADEMIC BACKGROUND INCLUDES
EITHER A COLLEGE DEGREE OR ITS EQUIVALENT AND THAT ALL PARTIES CONSIDER
THEM TO BE PROFESSIONAL EMPLOYEES. ALSO, THEY SPEND ABOUT 85 TO 90
PERCENT OF THEIR WORKING TIME PERFORMING ACTUAL TEACHING, AND THEIR
CLASSROOMS, WHICH WERE SET UP SPECIFICALLY FOR THEIR WORK, ARE LOCATED
IN A SEPARATE BUILDING ON THE ACTIVITY'S PREMISES. THE TEACHERS IN THE
CLAIMED UNIT WORK UNDER THE SAME IMMEDIATE SUPERVISOR AND THERE IS NO
INTERCHANGE BETWEEN THEM AND OTHER SHIPYARD EMPLOYEES. BASED ON THE
FOREGOING, I FIND THAT AN ELECTION IN THE UNIT SOUGHT BY THE PETITIONER
IS WARRANTED /5/ SINCE THE EMPLOYEES IN THE UNIT SOUGHT HAVE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND APART FROM OTHER
EMPLOYEES AT THE ACTIVITY /6/ INCLUDING THOSE REPRESENTED BY THE
INTERVENORS.
I FIND THAT THE FOLLOWING EMPLOYEES OF THE ACTIVITY CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491:
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
30 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL
ASSOCIATION /7/ OF GOVERNMENT EMPLOYEES.
DATED, WASHINGTON, D.C.
DECEMBER 23, 1970
/1/ THE NAME OF THIS LABOR ORGANIZATION APPEARS AS AMENDED AT THE
HEARING.
/2/ THIS RECOGNITION FOLLOWED AN ELECTION HELD ON NOVEMBER 7, 1963,
WHICH RESULTED FROM AN ARBITRATOR'S DECISION. THE EVIDENCE ESTABLISHED
THAT THE EMPLOYEES IN THE CLAIMED UNIT DID NOT PARTICIPATE IN THE
ELECTION OF NOVEMBER 7, 1963, AND WERE NOT COVERED BY THE CONTRACT WHICH
WAS EXECUTED SUBSEQUENTLY ON SEPTEMBER 14, 1967.
/3/ AS NOTED ABOVE, THE AFGE'S RECOGNIZED UNIT EXPRESSLY EXCLUDED
PROFESSIONAL EMPLOYEES. NEITHER OF THE ABOVE-MENTIONED CONTRACTS ARE
CURRENTLY IN EFFECT.
/4/ THE PETITIONED FOR EMPLOYEES ARE INCLUDED IN THE CIVIL SERVICE
COMMISSION'S CLASSIFICATION SERIES GS-1710. THIS SERIES IS DEFINED BY
THE CIVIL SERVICE COMMISSION AS CONSISTING OF "ALL POSITIONS WHICH
INVOLVE ADVISING ON, ADMINISTERING, SUPERVISING, OR PERFORMING RESEARCH
OR OTHER PROFESSIONAL WORK IN THE FIELD OF EDUCATION AND TRAINING . . .
" THE STANDARDS FURTHER DESCRIBE THE GS-1710 SERIES AS AN EDUCATIONAL
VOCATIONAL TRAINING SERIES INCLUDING "POSITIONS THAT REQUIRE THE
APPLICATION OF FULL PROFESSIONAL KNOWLEDGE OF THEORIES, PRINCIPLES, AND
TECHNIQUES OF EDUCATION AND TRAINING IN SUCH AREAS AS INSTRUCTION,
GUIDANCE COUNSELING, EDUCATION ADMINISTRATION, DEVELOPMENT OR EVALUATION
OF CURRICULA, INSTRUCTIONAL MATERIALS AND AIDS, AND EDUCATIONAL TESTS
AND MEASUREMENTS . . . "
/5/ THE EVIDENCE ESTABLISHES THAT AT NO TIME DID EITHER THE AFTE OR
THE AFGE REPRESENT THE TEACHERS IN THE PETITIONED FOR UNIT AS PART OF
THEIR RESPECTIVE RECOGNIZED UNITS AT THE ACTIVITY.
/6/ THERE ARE TWO OTHER GROUPS OF EMPLOYEES AT THE ACTIVITY WHO
INSTRUCT EMPLOYEES. IN MY VIEW, THEY DO NOT SHARE A COMMUNITY OF
INTEREST WITH THE EMPLOYEES IN THE PETITIONED FOR UNIT. ONE GROUP
TEACHES A SINGLE SPECIALIZED COURSE, "RADIOLOGICAL CLASSIFICATIONS."
EMPLOYEES IN THIS GROUP ARE NOT CONSIDERED PROFESSIONALS, ARE NOT
REQUIRED TO HAVE A COLLEGE EDUCATION OR ITS EQUIVALENT, AND DO NOT
INTERCHANGE WITH EMPLOYEES IN THE CLAIMED UNIT. ANOTHER GROUP OF
EMPLOYEES, WHO ARE DESIGNATED AS TRADE THEORY INSTRUCTORS, INSTRUCT
APPRENTICES ONLY IN TRADE RELATED INFORMATION. THEY ARE UNGRADED
EMPLOYEES WHO ARE NOT REQUIRED TO HAVE A FORMAL EDUCATION AND ARE
RECRUITED FROM THE RANKS OF JOURNEYMEN IN THE PRODUCTION DEPARTMENT.
THERE IS ALSO NO EVIDENCE THAT THEY INTERCHANGE WITH EMPLOYEES IN THE
CLAIMED UNIT.
/7/ THE AFTER STATED AT THE HEARING THAT IN THE EVENT AN ELECTION IS
ORDERED, IT DOES NOT DESIRE TO HAVE ITS NAME PLACED ON THE BALLOT. IN
VIEW OF THE ABOVE FINDING THAT THE PETITIONED FOR EMPLOYEES ARE NOT
INCLUDED WITHIN THE UNIT REPRESENTED BY THE AFGE AND THE FACT THAT IT
DID NOT SUBMIT TO THE AREA ADMINISTRATOR UNION AUTHORIZATION CARDS OR A
MEMBERSHIP LIST IN SUPPORT OF ITS INTERVENTION IN THE PETITIONED FOR
UNIT, I CONSIDER THAT THE PLACEMENT OF THE AFGE'S NAME ON THE BALLOT IS
NOT WARRANTED.
1 A/SLMR 1; P. 27; CASE NOS. 40-1940(CA), 40-1950(CA); NOVEMBER 3,
1970.
CHARLESTON NAVAL SHIPYARD
A/SLMR NO. 1
THIS CASE AROSE AS A RESULT OF UNFAIR LABOR PRACTICES COMPLAINTS
FILED BY THE FEDERAL EMPLOYEES METAL TRADES COUNCIL (MTC) OF CHARLESTON,
SOUTH CAROLINA, ALLEGING THAT THE CHARLESTON NAVAL SHIPYARD HAD VIOLATED
SECTION 19(A)(1) AND 20 OF EXECUTIVE ORDER 11491 BY RESTRICTING SHIPYARD
EMPLOYEES FROM ENGAGING IN ANY TYPE OF ELECTIONEERING ACTIVITY ON THE
SHIPYARD'S PREMISES UNTIL CAMPAIGN PROCEDURES WERE ESTABLISHED. MTC
CHARGED THAT THE SHIPYARD'S RESTRICTIONS INTERFERED WITH, RESTRAINED OR
COERCED EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491. THE SHIPYARD DEFENDED ITS CONDUCT ON THE BASIS THAT IT HAD ACTED
IN ACCORDANCE WITH OUTSTANDING DIRECTIVES OF THE DEPARTMENT OF DEFENSE
AND THE CIVIL SERVICE COMMISSION.
A HEARING WAS HELD BEFORE A HEARING EXAMINER WHO ISSUED HIS REPORT
AND RECOMMENDATIONS ON JULY 13, 1970. THE HEARING EXAMINER CONCLUDED
THAT:
(1) BASED ON THE SIMILARITY OF THE RELEVANT LANGUAGE OF THE
LABOR-MANAGEMENT RELATIONS ACT, AS AMENDED, AND EXECUTIVE ORDER 11491,
DECISIONS UNDER THE STATUTE DEALING WITH EMPLOYEE RIGHTS IN SOLICITATION
AND IN DISTRIBUTION OF LITERATURE ARE APPLICABLE UNDER THE ORDER;
(2) WITH RESPECT TO THE SHIPYARD'S CONTENTION THAT IT HAD ACTED IN
ACCORDANCE WITH OUTSTANDING GOVERNMENT DIRECTIVES, THE RIGHTS OF
EMPLOYEES UNDER THE EXECUTIVE ORDER WERE NOT DIMINISHED "BY ERRONEOUS
RULINGS OF THE CIVIL SERVICE COMMISSION OR THE DEPARTMENT OF DEFENSE";
AND
(3) THE REGULATIONS GOVERNING UNION ELECTIONEERING ACTIVITIES
PROMULGATED BY THE SHIPYARD VIOLATED SECTION 19(A)(1) OF THE EXECUTIVE
ORDER SINCE SUCH RULES INFRINGED ON THE EMPLOYEE'S RIGHT UNDER SECTION 1
OF THE ORDER TO "ASSIST A LABOR ORGANIZATION."
UPON REVIEW OF THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND
THE ENTIRE RECORD OF THE CASE, THE ASSISTANT SECRETARY FOUND THAT:
(1) WITH RESPECT TO THE HEARING EXAMINER'S RATIONALE CONCERNING THE
CONTROLLING EFFECT OF DECISIONS UNDER THE LABOR-MANAGEMENT RELATIONS
ACT, AS AMENDED, DECISIONS UNDER THE ACT WOULD NOT BE CONTROLLING UNDER
EXECUTIVE ORDER 11491. RATHER, IN DECIDING CASES UNDER THE ORDER, THE
ASSISTANT SECRETARY SAID HE WOULD TAKE INTO ACCOUNT THE POLICIES AND
PRACTICES DEVELOPED IN THE FEDERAL SECTOR AND OTHER JURISDICTIONS AS
WELL AS THE EXPERIENCE GAINED IN THE PRIVATE SECTOR;
(2) THE SHIPYARD'S CONTENTION THAT HE WAS WITHOUT AUTHORITY TO FIND
THAT IT HAD VIOLATED THE ORDER BECAUSE ITS CONDUCT WAS BASED ON
DIRECTIVES ISSUED BY THE CIVIL SERVICE COMMISSION AND THE DEPARTMENT OF
DEFENSE WAS INCORRECT. IN THIS REGARD, HE STATED THAT NEITHER THE STUDY
COMMITTEE'S REPORT AND RECOMMENDATIONS, WHICH PRECEDED THE ORDER, NOR
THE ORDER ITSELF, INDICATED THAT IN THE PROCESSING OF UNFAIR LABOR
PRACTICES COMPLAINTS THE ASSISTANT SECRETARY WAS BOUND TO ACCEPT AS
DETERMINATIVE THOSE DIRECTIVES OR POLICIES OF THE CIVIL SERVICE
COMMISSION, THE DEPARTMENT OF DEFENSE, OR ANY OTHER AGENCY, WHICH, IN
HIS VIEW, CONTRAVENED THE PURPOSES OF THE ORDER; AND
(3) IN THE ABSENCE OF ANY EVIDENCE OF SPECIAL CIRCUMSTANCES WHICH
WOULD HAVE WARRANTED THE SHIPYARD'S LIMITING OR BARRING EMPLOYEES'
SOLICITATION DURING THEIR NONWORK TIME AND THE DISTRIBUTION OF CAMPAIGN
MATERIALS ON ITS PREMISES BY SHIPYARD EMPLOYEES DURING THEIR NON-WORK
TIME AND IN NON-WORK AREAS, THE SHIPYARD'S RESTRICTIONS INTERFERED WITH
EMPLOYEE RIGHTS ASSURED UNDER EXECUTIVE ORDER 11491 AND WERE THEREFORE
VIOLATIVE OF SECTION 19(A)(1). IN REACHING THIS DECISION, THE ASSISTANT
SECRETARY REVIEWED THE PRACTICE DEVELOPED IN THE FEDERAL SECTOR PURSUANT
TO A CIVIL SERVICE COMMISSION PERSONNEL MANUAL LETTER IN WHICH AGENCIES
WERE ADVISED, IN SITUATIONS INVOLVING CHALLENGES TO AN INCUMBENT LABOR
ORGANIZATION'S REPRESENTATIVE STATUS, NOT TO AUTHORIZE THE USE OF THEIR
PREMISES UNTIL CAMPAIGN PROCEDURES WERE ESTABLISHED TO EITHER AN
INCUMBENT EXCLUSIVE REPRESENTATIVE OR A CHALLENGING LABOR ORGANIZATION
FOR THE PURPOSE OF CONDUCTING MEMBERSHIP OR ELECTION CAMPAIGNS. HE
CONCLUDED IN THIS REGARD THAT THIS PRACTICE DID NOT ACHIEVE THE EQUALITY
SOUGHT AMONG CONTENDING LABOR ORGANIZATIONS, BUT RATHER WORKED TO THE
DETRIMENT OF A CHALLENGING UNION WHICH, UNLIKE THE INCUMBENT, HAD NOT
ENJOYED THE ADVANTAGE OF A PRIOR RELATIONSHIP AMONG THE UNIT EMPLOYEES
AND ALSO DEPRIVED THESE EMPLOYEES OF THE OPPORTUNITY TO BECOME INFORMED.
IN CONJUNCTION WITH HIS FINDING THAT THE SHIPYARD'S CONDUCT VIOLATED
SECTION 19(A)(1) OF THE EXECUTIVE ORDER, THE ASSISTANT SECRETARY ORDERED
THE SHIPYARD TO CEASE AND DESIST FROM ENGAGING IN SUCH CONDUCT AND ALSO
REQUIRED THAT A NOTICE TO ALL EMPLOYEES BE POSTED ON THE SHIPYARD'S
PREMISES ADVISING THAT THE SHIPYARD WILL NOT PROMULGATE OR MAINTAIN THE
NO-SOLICITATION - NO-DISTRIBUTION RULES FOUND TO BE IN DEROGATION OF THE
EXECUTIVE ORDER.
CHARLESTON NAVAL SHIPYARD
AND
FEDERAL EMPLOYEES METAL TRADES
COUNCIL, METAL TRADES DEPARTMENT, AFL-CIO
ON JULY 13, 1970, HEARING EXAMINER FREDERICK U. REEL ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND
RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED HEARING EXAMINER'S REPORT AND RECOMMENDATIONS. THEREAFTER, THE
RESPONDENT FILED EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE COMPLAINANT FILED
AN ANSWERING BRIEF. THE CIVIL SERVICE COMMISSION AND THE DEPARTMENT OF
DEFENSE WHICH, UPON THE INVITATION OF THE HEARING EXAMINER, HAD
SUBMITTED STATEMENTS TO HIM IN CONNECTION WITH THEIR RESPECTIVE
POSITIONS IN THIS MATTER, ALSO FILED EXCEPTIONS AND SUPPORTING
STATEMENTS TO THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. THE ASSISTANT SECRETARY
HAS CONSIDERED THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE
ENTIRE RECORD IN THE SUBJECT CASES /1/ , INCLUDING THE EXCEPTIONS,
STATEMENTS OF POSITIONS AND BRIEFS, AND HEREBY ADOPTS THE FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS OF THE HEARING EXAMINER ONLY TO THE
EXTENT CONSISTENT HEREWITH.
THE COMPLAINTS IN THE INSTANT CASES FILED BY THE CHARLESTON METAL
TRADES COUNCIL /2/ (HEREIN CALLED THE UNION) AGAINST THE CHARLESTON
NAVAL SHIPYARD (HEREIN CALLED THE SHIPYARD) ALLEGED VIOLATIONS OF
SECTIONS 19(A)(1) AND 20 OF EXECUTIVE ORDER 11491 BASED ON THE
SHIPYARD'S NOTICE OF FEBRUARY 18 AND ITS SUBSEQUENT MEMORANDA OF MARCH
16 AND 27, 1970. THE UNION CONTENDS THAT THE NOTICE AND MEMORANDA
EFFECTIVELY COERCED, RESTRAINED, AND INTIMIDATED EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED UNDER EXECUTIVE ORDER 11491. THE
SHIPYARD, ON THE OTHER HAND, DEFENDS ITS CONDUCT IN ISSUING THE
ABOVE-MENTIONED DIRECTIVES ON THE BASIS THAT IT WAS MERELY ACTING IN
ACCORDANCE WITH OUTSTANDING INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION
/3/ WHICH PROVIDE, IN PART, THAT DURING THE PERIOD SUBSEQUENT TO THE
FILING OF A VALID CHALLENGE REQUIRING A REDETERMINATION OF EXCLUSIVE
STATUS, AN "AGENCY SHOULD NOT AUTHORIZE THE USE OF AGENCY FACILITIES TO
EITHER THE INCUMBENT EXCLUSIVE OR THE CHALLENGING ORGANIZATION(S) TO
CONDUCT MEMBERSHIP OR ELECTION /4/ CAMPAIGNS." IN THIS RESPECT, THE
SHIPYARD CONTENDS THAT THE ASSISTANT SECRETARY OF LABOR IS WITHOUT
AUTHORITY TO FIND THAT A DIRECTIVE,REGULATION, ORDER OR POLICY ISSUED BY
THE CIVIL SERVICE COMMISSION, DEPARTMENT OF DEFENSE, OR ANY OTHER
"HIGHER AUTHORITY" OVER THE SHIPYARD IS INVALID BECAUSE SUCH A
DETERMINATION WOULD VIOLATE SECTIONS 4(B) AND 25(A) OF THE ORDER.
THE HEARING EXAMINER CONCLUDED THAT THE DIRECTIVES GOVERNING UNION
ELECTIONEERING ACTIVITIES PROMULGATED BY THE SHIPYARD /5/ INTERFERED
WITH, RESTRAINED, OR COERCED EMPLOYEES IN THE RIGHTS ASSURED BY
EXECUTIVE ORDER 11491 SINCE SUCH RULES INFRINGED ON THE EMPLOYEES' RIGHT
UNDER SECTION 1 OF THE ORDER TO "ASSIST A LABOR ORGANIZATION." IN
REACHING HIS RECOMMENDATION, THE HEARING EXAMINER RELIED ON PRECEDENT
DEVELOPED UNDER THE NATIONAL LABOR RELATIONS ACT. HE REASONED THAT IN
VIEW OF THE SIMILARITY OF LANGUAGE BETWEEN SECTIONS 7 AND 8(A)(1) OF THE
ACT AND SECTIONS 1 AND 19(A)(1) OF THE ORDER, THAT "THE DECISIONS UNDER
THE STATUTE DEALING WITH EMPLOYEE RIGHTS IN SOLICITATION AND IN
DISTRIBUTION OF LITERATURE ARE APPLICABLE UNDER THE ORDER (FOOTNOTE
OMITTED)." THE HEARING EXAMINER ALSO REJECTED THE SHIPYARD'S CONTENTION
THAT IN ISSUING THE DISPUTED REGULATIONS IT WAS ACTING UNDER A LEGAL
OBLIGATION TO FOLLOW THE DIRECTIVES OF THE CIVIL SERVICE COMMISSION AND
THE DEPARTMENT OF DEFENSE. IN THIS REGARD HE STATED THAT RIGHTS OF
EMPLOYEES ESTABLISHED UNDER THE EXECUTIVE ORDER "ARE NOT DIMINISHED BY
ERRONEOUS RULINGS OF THE CIVIL SERVICE COMMISSION OR THE DEPARTMENT OF
DEFENSE."
THERE IS NO INDICATION IN THE REPORTS AND RECOMMENDATIONS WHICH
PRECEDED EXECUTIVE ORDERS 10988 AND 11491 THAT THE EXPERIENCE GAINED IN
THE PRIVATE SECTOR UNDER THE NATIONAL LABOR RELATIONS ACT WOULD
NECESSARILY BE THE CONTROLLING PRECEDENT IN THE ADMINISTRATION OF
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SECTOR. THUS, MANY OF THE
PROVISONS OF EXECUTIVE ORDER 10988CONSTITUTED CLEAR ATTEMPTS TO TAKE
INTO ACCOUNT SITUATIONS PECULIAR TO FEDERAL SECTOR /6/ LABOR-MANAGEMENT
RELATIONS. MOREOVER, IN 1969, WHEN IT WAS DETERMINED THAT IMPROVEMENTS
IN THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM WERE WARRANTED, IT WAS
MADE CLEAR BY THE STUDY COMMITTEE THAT THE PROPOSED CHANGES DEALT ONLY
WITH DEFICIENCIES FOUND TO EXIST UNDER EXECUTIVE ORDER 10988, AND THERE
WAS NO INTENTION TO ADOPT SOME OTHER MODEL FOR /7/ FEDERAL
LABOR-MANAGEMENT RELATIONS.
BASED ON THE FOREGOING, IT IS MY BELIEF THAT DECISIONS ISSUED UNDER
THE LABOR-MANAGEMENT RELATIONS ACT, AS AMENDED, ARE NOT CONTROLLING
UNDER EXECUTIVE ORDER 11491. I WILL, HOWEVER, TAKE INTO ACCOUNT THE
EXPERIENCE GAINED IN THE PRIVATE SECTOR UNDER THE LABOR-MANAGEMENT
RELATIONS ACT, AS AMENDED, POLICIES AND PRACTICES IN OTHER
JURISDICTIONS, AND THOSE RULES DEVELOPED IN THE FEDERAL SECTOR UNDER THE
PRIOR EXECUTIVE ORDER. ACCORDINGLY, I REJECT THE REASONING OF THE
HEARING EXAMINER IN THE INSTANT CASE INSOFAR AS HE IMPLIES THAT ALL OF
THE RULES AND DECISIONS UNDER THE LABOR-MANAGEMENT RELATIONS ACT, AS
AMENDED, WOULD CONSTITUTE BINDING PRECEDENT ON THE ASSISTANT SECRETARY
WITH RESPECT TO THE IMPLEMENTATION OF HIS RESPONSIBILITIES UNDER
EXECUTIVE ORDER 11491.
ALSO, I REJECT THE SHIPYARD'S ASSERTION THAT I AM WITHOUT AUTHORITY
TO DETERMINE WHETHER DIRECTIVES OR POLICY GUIDANCE ISSUED BY THE CIVIL
SERVICE COMMISSION, DEPARTMENT OF DEFENSE OR ANY OTHER AGENCY ARE
VIOLATIVE OF THE ORDER WHEN THOSE DIRECTIVES OR POLICIES ARE ASSERTED BY
THE ACTIVITY AS A DEFENSE TO ALLEGEDLY VIOLATIVE CONDUCT. BOTH THE
STUDY COMMITTEE'S REPORT AND RECOMMENDATIONS AND THE ORDER ITSELF
CLEARLY INDICATE THE ROLE WHICH THE ASSISTANT SECRETARY WAS INTENDED TO
PLAY IN THE PROCESSING OF UNFAIR LABOR PRACTICES COMPLAINTS UNDER THE
ORDER. THUS, THE STUDY COMMITTEE'S REPORT AND RECOMMENDATIONS STATED
THAT THE LACK OF A THIRD PARTY PROCESS IN RESOLVING UNFAIR LABOR
PRACTICE CHARGES WAS A SERIOUS DEFICIENCY UNDER THE PRIOR FEDERAL
LABOR-MANAGEMENT PROGRAM. TO RECTIFY THIS DEFICIENCY, IT WAS
RECOMMENDED THAT THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS BE AUTHORIZED TO ISSUE DECISIONS TO AGENCIES AND LABOR
ORGANIZATIONS SUBJECT TO A LIMITED RIGHT OF APPEAL TO THE FEDERAL LABOR
RELATIONS COUNCIL. THE STUDY COMMITTEE STATED THAT AS THE ASSISTANT
SECRETARY ISSUES DECISIONS A BODY OF PRECEDENT WOULD BE DEVELOPED FROM
WHICH INTERESTED PARTIES COULD DRAW GUIDANCE. THE RECOMMENDATIONS OF
THE STUDY COMMITTEE CULMINATED IN SECTION 6(A)(4) OF THE ORDER WHICH
PROVIDES, IN PART, THAT THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS SHALL ". . . DECIDE COMPLAINTS OF ALLEGED
UNFAIR LABOR PRACTICES AND ALLEGED VIOLATIONS OF THE STANDARDS OF
CONDUCT FOR LABOR ORGANIZATIONS." HENCE, NEITHER THE STUDY COMMITTEE'S
REPORT AND RECOMMENDATIONS NOR THE ORDER ITSELF REQUIRE THAT IN
PROCESSING UNFAIR LABOR PRACTICES COMPLAINTS I AM BOUND TO ACCEPT AS A
DETERMINATIVE THOSE DIRECTIVES OR POLICIES OF THE CIVIL SERVICE
COMMISSION, THE DEPARTMENT OF DEFENSE OR ANY OTHER AGENCY /8/ WHICH IN
MY VIEW CONTRAVENE THE PURPOSES OF THE ORDER.
ACCORDINGLY, I REJECT THE SHIPYARD'S CONTENTION THAT I AM WITHOUT
AUTHORITY TO FIND A VIOLATION IN THE INSTANT CASE BECAUSE ITS CONDUCT
WAS BASED ON DIRECTIVES /9/ ISSUED BY THE CIVIL SERVICE COMMISSION AND
THE DEPARTMENT OF DEFENSE.
AS DID EXECUTIVE ORDER 10988, EXECUTIVE ORDER 11491 GUARANTEES TO
EMPLOYEES OF THE FEDERAL GOVERNMENT THE RIGHT "TO FORM, JOIN AND ASSIST"
A LABOR ORGANIZATION "WITHOUT FEAR OF PENALTY /10/ OR REPRISAL." SECTION
19(A)(1) OF EXECUTIVE ORDER 11491 STATES THAT "AGENCY MANAGEMENT SHALL
NOT INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF THE
RIGHTS ASSURED BY THIS ORDER." THAT PROVISION RAISES THE BASIC ISSUE TO
BE RESOLVED HEREIN, I.E. - WERE THE SHIPYARD'S ATTEMPTS TO CONTROL
EMPLOYEE ELECTIONEERING ON ITS PREMISES, AS EVIDENCED BY ITS FEBRUARY 18
NOTICE TO EMPLOYEES AND ITS SUBSEQUENT MEMORANDA OF MARCH 16 AND 27, IN
DEROGATION OF EXPRESSLY GUARANTEED EMPLOYEE RIGHTS /11/ UNDER EXECUTIVE
ORDER 11491?
IN ATTEMPTING TO RESOLVE THIS ISSUE, I HAVE CAREFULLY REVIEWED THE
POLICY AND PRACTICE DEVELOPED IN THE FEDERAL SECTOR UNDER EXECUTIVE
ORDER 711-6. AS NOTED ABOVE, SUCH POLICY AND PRACTICE WAS ADOPTED TO
COVER A PARTICULAR PERIOD PRIOR TO THE EXECUTION OF AN ELECTION
AGREEMENT WHEN A VALID AND TIMELY CHALLENGE HAD BEEN FILED WITH RESPECT
TO AN INCUMBENT LABOR ORGANIZATION'S EXCLUSIVE REPRESENTATIVE STATUS.
DURING THIS PERIOD, AGENCIES WERE COUNSELED NOT TO AUTHORIZE THE USE OF
THEIR FACILITIES TO EITHER THE INCUMBENT EXCLUSIVE REPRESENTATIVE OR THE
CHALLENGING ORGANIZATION FOR THE PURPOSE OF CONDUCTING MEMBERSHIP /12 OR
ELECTION CAMPAIGNS. THE CIVIL SERVICE COMMISSION CONTENDED THAT THIS
PROCEDURE REPRESENTS "THE MOST REASONABLE APPROACH WE HAVE DISCOVERED TO
ACHIEVING AMONG THE CONTENDING UNIONS THE REQUISITE FAIRNESS OR EQUALITY
OF OPPORTUNITY WHICH ALONE CAN GUARANTEE A GENUINELY FREE AND
REPRESENTATIVE /13/ ELECTION." THE SHIPYARD AND THE DEPARTMENT OF
DEFENSE OFFERED FURTHER JUSTIFICATION FOR THE CIVIL SERVICE COMMISSION
POLICY ON THE GROUNDS THAT THE GOVERNMENT, AS AN EMPLOYER, IS "MORE
NEUTRAL" IN THESE MATTERS THAN PRIVATE EMPLOYERS AND THAT THERE EXISTS A
SUBSTANTIAL PAST PRACTICE UNDER THIS POLICY WHICH, IF CHANGED, WOULD
RESULT IN INSTABILITY /14/ IN FEDERAL LABOR-MANAGEMENT RELATIONS.
THE BASIC RULES GOVERNING EMPLOYEE SOLICITATION AND DISTRIBUTION WERE
ESTABLISHED BY THE SUPREME COURT IN LE TOURNEAU CO. OF GEORGIA V. NLRB,
324 U.S. 793 (1945) AND REPUBLIC AVIATION CORP. V. NLRB, 324 U.S. 793
(1945). THE COURT HELD THAT THE ENFORCEMENT OF NO-DISTRIBUTION AND
NO-SOLICITATION RULES AGAINST EMPLOYEES DURING THEIR NON-WORKING TIME
WAS UNLAWFUL EXCEPT WHERE THERE WERE UNUSUAL CIRCUMSTANCES PRESENT.
IN THE INSTANT CASES THERE IS NO EVIDENCE TO ESTABLISH THAT EMPLOYEE
SOLICITATION ACTIVITY WITH RESPECT TO THE FORTHCOMING ELECTION OR THEIR
DISTRIBUTION OF CAMPAIGN LITERATURE HAD THE EFFECT OR WOULD HAVE HAD THE
EFFECT OF CREATING A SAFETY HAZARD OR INTERFERING WITH WORK PRODUCTION
OR THE MAINTENANCE OF DISCIPLINE IN THE SHIPYARD. MOREOVER, THE
ARGUMENT THAT A MORATORIUM ON ELECTIONEERING PREVENTS THE INCUMBENT FROM
EXERCISING ITS NATURAL ADVANTAGE OVER THE CHALLENGER IS LIKEWISE
UNPERSUASIVE SINCE EQUALITY ALSO CAN BE MAINTAINED BY GRANTING FULL
COMMUNICATION RIGHTS TO BOTH UNIONS. A PROHIBITION ON ANY REASONABLE
FORM OF SOLICITATION OR ELECTION CAMPAIGNING, WORKS NOT ONLY TO THE
DETRIMENT OF UNIT EMPLOYEES WHO MAY SEEK TO BECOME INFORMED, BUT ALSO TO
THE DETRIMENT OF THE CHALLENGING UNION, WHICH, UNLIKE THE INCUMBENT, HAS
NOT ENJOYED THE ADVANTAGE OF A PRIOR RELATIONSHIP AMONG THE UNIT
EMPLOYEES. I CONCLUDE, THEREFORE, THAT THE PURPOSES SOUGHT TO BE
ACHIEVED BY THE OPERATION OF THE SHIPYARD'S RULES ARE NEITHER ATTAINED,
NOR DO THEY JUSTIFY LIMITING THE EMPLOYEES' RIGHT ESTABLISHED UNDER
EXECUTIVE ORDER 11491 "TO ASSIST A LABOR ORGANIZATION."
ACCORDINGLY, IN THE ABSENCE OF ANY EVIDENCE OF SPECIAL CIRCUMSTANCES
WHICH WOULD HAVE WARRANTED THE SHIPYARD'S LIMITING OR BANNING EMPLOYEE
SOLICITATION DURING NONWORK TIME AND THE DISTRIBUTION OF CAMPAIGN
MATERIALS ON ITS PREMISES DURING EMPLOYEE NONWORK TIME AND IN NONWORK
AREAS, I FIND THAT THE SHIPYARD'S NOTICE OF FEBRUARY 18, 1970, AND ITS
SUBSEQUENT MEMORANDA OF MARCH 16 AND 27, 1970, /15/ INTERFERED WITH
EMPLOYEE RIGHTS ASSURED UNDER EXECUTIVE ORDER 11491, AND WERE THEREFORE
VIOLATIVE OF SECTION 19(A)(1) /16/ OF THE /17/ ORDER.
BY PROMULGATING AND MAINTAINING A RULE WHICH PROHIBITS EMPLOYEES FROM
ENGAGING IN SOLICITATION ON BEHALF OF THE UNION OR ANY OTHER LABOR
ORGANIZATION DURING NONWORK TIME AND FROM DISTRIBUTING LITERATURE FOR
THE UNION OF ANY OTHER LABOR ORGANIZATION ON ACTIVITY PREMISES IN
NONWORK AREAS DURING NONWORK TIME, THE SHIPYARD HAS VIOLATED SECTION
19(A)(1) OF THE EXECUTIVE ORDER.
HAVING FOUND THAT THE SHIPYARD HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, I SHALL ORDER
THE SHIPYARD TO CEASE AND DESIST THEREFROM AND TAKE SPECIFIC AFFIRMATIVE
ACTION, AS SET FORTH BELOW, DESIGNED TO EFFECTUATE THE POLICIES OF THE
ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AND SECTION
203.25(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE CHARLESTON NAVAL
SHIPYARD SHALL:
1. CEASE AND DESIST FROM:
(A) PROMULGATING OR MAINTAINING A NO-SOLICITATION RULE WHICH
RESTRICTS SHIPYARD EMPLOYEES FROM ENGAGING IN SOLICITATION ON BEHALF OF
THE UNION OR ANY OTHER LABOR ORGANIZATION AT THE WORKPLACE DURING THEIR
NONWORK TIME PROVIDING THERE IS NO INTERFERENCE WITH THE WORK OF THE
AGENCY.
(B) PROMULGATING OR MAINTAINING A RULE WHICH PROHIBITS SHIPYARD
EMPLOYEES FROM DISTRIBUTING LITERATURE ON BEHALF OF THE UNION OR ANY
OTHER LABOR ORGANIZATION ON SHIPYARD PREMISES IN NONWORK AREAS DURING
THEIR NONWORK TIME.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A)
OF EXECUTIVE ORDER 11491.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) DISTRIBUTE TO ALL EMPLOYEES TO WHOM THE MEMORANDA OF MARCH 16 AND
27 WERE DISTRIBUTED THE ATTACHED NOTICE MARKED "APPENDIX." COPIES OF
SAID NOTICE SHALL BE SIGNED BY THE COMMANDING OFFICER OF THE SHIPYARD
AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED INCLUDING ALL PLACES WHERE THE FEBRUARY
18 NOTICE WAS POSTED. THE SHIPYARD COMMANDER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN 10 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
NOVEMBER 3, 1970
/1/ THE FORMAL PAPERS IN THE INSTANT CASES, I.E. - THE COMPLAINTS,
THE NOTICE OF HEARING, ETC. WERE NOT FORMALLY INTRODUCED INTO THE RECORD
BY THE HEARING EXAMINER. HOWEVER, ON THE RECORD, HE CLEARLY INDICATED
THAT SUCH DOCUMENTS WOULD BE INCLUDED IN THE FILE WHICH WOULD BE
CONSIDERED BY THE ASSISTANT SECRETARY. IN THESE CIRCUMSTANCES, THE
RECORD IN THE INSTANT CASES TRANSFERRED TO THE ASSISTANT SECRETARY WAS
DETERMINED TO HAVE PROPERLY INCLUDED THE FORMAL PAPERS WITHIN THE
MEANING OF SECTION 203.22(B) OF THE RULES AND REGULATIONS.
/2/ THE COMPLAINANT'S NAME APPEARS IN THE CASE CAPTION AS AMENDED AT
THE HEARING.
/3/ SEE CIVIL SERVICE COMMISSION'S FEDERAL PERSONNEL MANUAL LETTER
711-6 DATED DECEMBER 14, 1966.
/4/ FEDERAL PERSONNEL MANUAL LETTER 711-6 ALSO PROVIDES, IN PART,
THAT "THERE SHALL BE NO RESTRICTION AT ANY TIME ON THE RIGHT OF
EMPLOYEES TO FREEDOM OF NORMAL PERSON-TO-PERSON COMMUNICATION AT THE
WORKPLACE PROVIDED THERE IS NO INTERFERENCE WITH THE WORK OF THE AGENCY.
EMPLOYEES MAY ENGAGE IN ORAL SOLICITATION OF EMPLOYEE ORGANIZATION
MEMBERSHIP DURING NON-WORK PERIODS ON AGENCY PREMISES."
/5/ THE SHIPYARD'S NOTICE OF FEBRUARY 18, 1970, PROVIDED, IN
PERTINENT PART, THAT:
A. NEITHER THE CURRENTLY RECOGNIZED CHARLESTON METAL TRADES COUNCIL
NOR THE CHALLENGING
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES SHALL CONDUCT ANY TYPE
OF ELECTIONEERING ON NAVAL
BASE PREMISES UNTIL CAMPAIGN PROCEDURES ARE ESTABLISHED. PROHIBITED
ACTIONS INCLUDE:
(1) POSTING OR DISTRIBUTION ON NAVAL BASE PREMISES OF ANY POSTER,
BULLETIN OR OTHER
MATERIAL WHICH RELATES TO THE CHALLENGE;
(2) MEETINGS ON NAVAL BASE PREMISES FOR THE PURPOSE OF ELECTIONEERING
OR CAMPAIGNING;
(3) SOLICITATION OF AUTHORIZATION REVOCATIONS BY THE CHALLENGED UNION
ON NAVAL BASE
PREMISES;
(4) SOLICITATION OF FURTHER AUTHORIZATIONS BY THE CHALLENGING UNION
ON NAVAL BASE PREMISES.
B. THE PROHIBITIONS STATED IN PARAGRAPH 3A ABOVE, APPLY EQUALLY TO
EMPLOYEES AND
NON-EMPLOYEE REPRESENTATIVES OF THE ORGANIZATIONS INVOLVED . . .
THE SHIPYARD'S MEMORANDUM OF MARCH 16, 1970, AS AMPLIFIED ON MARCH
27, 1970, PLACED CERTAIN RESTRICTIONS ON THE UNION'S STEWARDS WITH
RESPECT TO THE TIME ALLOWED FOR THEIR CONDUCTING OF UNION BUSINESS. THE
MARCH 16 MEMORANDUM ALSO STATED, IN PART, THAT "ELECTIONEERING OR
CAMPAIGNING AT THIS TIME IS PROHIBITED."
/6/ SEE E.G. SECTION 3(A) OF EXECUTIVE ORDER 10988 WHICH PROVIDED FOR
THREE DIFFERENT TYPES OF RECOGNITION ARRANGEMENTS - INFORMAL, FORMAL OR
EXCLUSIVE.
/7/ SEE THE INTRODUCTION TO THE STUDY COMMITTEE'S REPORT AND
RECOMMENDATIONS ON LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE
DATED AUGUST 1969.
/8/ THE SHIPYARD'S CONTENTION THAT SECTIONS 4(B) AND 25(A) OF THE
EXECUTIVE ORDER PRECLUDE THE ASSISTANT SECRETARY FROM FINDING THAT
DIRECTIVES, ETC. ISSUED BY THE CIVIL SERVICE COMMISSION AND THE
DEPARTMENT OF DEFENSE ARE INVALID IS REJECTED. THUS, SECTION 4(B)
MERELY DEFINES THE OVERALL RESPONSIBILITY OF THE FEDERAL LABOR RELATIONS
COUNCIL UNDER THE ORDER AND SECTION 25(A) SETS FORTH THE CIVIL SERVICE
COMMISSION'S TECHNICAL ASSISTANCE ROLE TO THE AGENCIES WITH RESPECT TO
THEIR RESPECTIVE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAMS. IN MY
VIEW, NEITHER OF THESE SECTIONS WAS INTENDED TO LIMIT THE AUTHORITY OF
THE ASSISTANT SECRETARY IN THE MANNER STATED BY THE SHIPYARD.
/9/ NEITHER THE CIVIL SERVICE COMMISSION NOR THE DEPARTMENT OF
DEFENSE CONTENDS THAT THE ASSISTANT SECRETARY IS WITHOUT AUTHORITY IN
THIS RESPECT.
/10/ SEE SECTION 1(A) OF EXECUTIVE ORDER 10988 AND SECTION 1(A) OF
EXECUTIVE ORDER 11491.
/11/ AS NOTED IN FOOTNOTE 2 OF THE HEARING EXAMINER'S REPORT AND
RECOMMENDATIONS, THE SUBJECT CASES INVOLVE ONLY THE RIGHTS OF EMPLOYEES
AND NOT THE RIGHTS OF NON-EMPLOYEE UNION REPRESENTATIVES.
/12/ AS NOTED ABOVE IN FOOTNOTE 4 AND AS DISTINGUISHED FROM THE
SHIPYARD'S DIRECTIVES HEREIN, NORMAL EMPLOYEE "PERSON-TO-PERSON
COMMUNICATION AT THE WORKPLACE" WAS PERMITTED UNDER FEDERAL PERSONNEL
MANUAL LETTER 711-6 AND EMPLOYEES WERE ALLOWED TO "ENGAGE IN ORAL
SOLICITATION OF EMPLOYEE ORGANIZATION MEMBERSHIP DURING NON-WORK PERIODS
ON AGENCY PREMISES."
/13/ THIS POSITION OF THE CIVIL SERVICE COMMISSION WAS EXPRESSED IN A
LETTER FROM ITS GENERAL COUNSEL TO HEARING EXAMINER REEL DATED JULY 2,
1970.
/14/ IN ITS EXCEPTIONS TO THE HEARING EXAMINER'S REPORT AND
RECOMMENDATIONS, THE DEPARTMENT OF DEFENSE CONTENDED, AMONG OTHER
THINGS, THAT TO THE EXTENT THE SHIPYARD'S NOTICE OF FEBRUARY 18, 1970,
ATTEMPTED TO RESTRICT THE SOLICITATION RIGHTS OF INDIVIDUAL EMPLOYEES IT
WAS TOO BROAD SINCE SECTION 11 OF FEDERAL PERSONNEL MANUAL LETTER 711-6
MADE IT CLEAR THAT NOTHING THEREIN WAS INTENDED TO INTERFERE WITH
FREEDOM OF NORMAL PERSON-TO-PERSON COMMUNICATION AT THE WORKPLACE WHICH
DOES NOT DISRUPT WORK OPERATIONS. THE DEPARTMENT OF DEFENSE FURTHER
ASSERTED THAT A VALID AND MEANINGFUL DISTINCTION SHOULD BE MADE BETWEEN
SUCH CONSTITUTIONALLY PROTECTED COMMUNICATION ON THE ONE HAND, AND, ON
THE OTHER, PARTICIPATION IN ORGANIZED ELECTIONEERING ACTIVITIES ON
BEHALF OF A UNION ON ACTIVITY PREMISES DURING A PERIOD BEFORE MUTUALLY
AGREED UPON RULES FOR SUCH ELECTIONEERING HAVE BEEN ADOPTED.
/15/ AS NOTED ABOVE, THE SHIPYARD'S MEMORANDA OF MARCH 16 AND 27,
1970, PLACED CERTAIN RESTRICTIONS ON THE UNION'S STEWARDS WITH RESPECT
TO THEIR HANDLING OF UNION BUSINESS AT THE FACILITY. UNDER THESE
RESTRICTIONS, BEFORE BEING GRANTED TIME OFF TO CARRY OUT THEIR
RESPONSIBILITIES TO THE UNIT EMPLOYEES, STEWARDS WERE REQUIRED TO
SPECIFY TO MANAGEMENT REPRESENTATIVES THE TYPE OF UNION BUSINESS TO BE
CONDUCTED AND, UNLESS SUCH BUSINESS WAS INCLUDED ON A LIST OF 18
PERMISSABLE ACTIVITIES, EXCUSED TIME WOULD BE DENIED. THE SHIPYARD
ADMITTED THAT THE DESIRE TO LIMIT ELECTIONEERING ACTIVITIES WAS ONE OF
THE REASONS FOR ISSUANCE OF THESE MEMORANDA. ALTHOUGH, UNDER ARTICLE
VI, SECTION 5 OF THE PARTIES' AGREEMENT, STEWARDS MUST FIRST OBTAIN ORAL
PERMISSION FROM THEIR SUPERVISOR WHEN THEY DESIRE TO LEAVE THEIR WORK
AREA TO TRANSACT APPROPRIATE UNION BUSINESS DURING WORK HOURS, INSOFAR
AS THE SHIPYARD'S MARCH 16 AND 27 MEMORANDA CONSTITUTED A BROAD
RESTRICTION AGAINST ELECTIONEERING BY STEWARDS DURING THEIR NONWORK
TIME, THEY VIOLATED SECTION 19(A)(1) OF THE ORDER.
/16/ THE ALLEGED VIOLATION OF SECTION 20 IN THE COMPLAINT IS
INAPPLICABLE INASMUCH AS UNFAIR LABOR PRACTICES VIOLATIONS ARE
COGNIZABLE ONLY UNDER SECTION 19 OF EXECUTIVE ORDER 11491.
/17/ THE FACT THAT THE GOVERNMENT, AS AN EMPLOYER, MUST REMAIN
NEUTRAL DURING AN ELECTION CAMPAIGN WAS NOT CONSIDERED TO REQUIRE A
CONTRARY RESULT. THUS, STANDING ALONE, THIS FACTOR WOULD NOT WARRANT A
CURTAILMENT OF EMPLOYEE RIGHTS UNDER THE ORDER.
FEDERAL EMPLOYEES METAL TRADES COUNCIL
METAL TRADES DEPARTMENT, AFL-CIO
AND
CHARLESTON NAVAL SHIPYARD
PATRICK C. O'DONOGHUE, ESQ., AND
DOUGLAS L. LESLIE, ESQ., OF
WASHINGTON, D.C., FOR THE COMPLAINANT.
L.NEAL ELLIS, ESQ., LEGAL COUNSEL,
OFFICE OF CIVILIAN MANPOWER
MANAGEMENT, NAVY DEPARTMENT,
WASHINGTON, D.C., FOR THE RESPONDENT.
FRANK A. BARTAIMO, ESQ., ASSISTANT
GENERAL COUNSEL, DEPARTMENT OF
DEFENSE, SUBMITTED A BRIEF
AMICUS CURIAE.
ANTHONY L. MONDELLO, ESQ., GENERAL
COUNSEL, CIVIL SERVICE COMMISSION,
SUBMITTED A LETTER IN LIEU OF A
BRIEF AMICUS.
BEFORE: FREDERICK U. REEL, HEARING EXAMINER.
THIS PROCEEDING, /1/ HEARD AT CHARLESTON, SOUTH CAROLINA, ON JUNE 16,
1970, ARISES UNDER EXECUTIVE ORDER 11491, AND WAS INITIATED BY
COMPLAINTS FILED MARCH 12 AND 26, 1970, IN WHICH COMPLAINANT (HEREIN
CALLED THE UNION) ALLEGED THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND
20 OF THAT ORDER BY RESTRICTING THE RIGHT OF EMPLOYEES TO SOLICIT ON
BEHALF OF THE UNION AND TO DISTRIBUTE LITERATURE. THE COMPLAINTS WERE
CONSOLIDATED FOR PURPOSES OF THE HEARING BY ORDER OF THE REGIONAL
ADMINISTRATOR, ATLANTA REGION, ON APRIL 24, 1970, WHO THEREAFTER ISSUED
THE NOTICE OF HEARING.
AT THE HEARING BOTH PARTIES WERE REPRESENTED BY COUNSEL, WHO WERE
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, SUBMIT ORAL ARGUMENTS AND FILE BRIEFS. AT THE OPENING OF THE
HEARING RESPONDENT FILED A MOTION TO DISMISS, AS TO WHICH RULING WAS
RESERVED AND WHICH IS HEREWITH DENIED FOR REASONS SET FORTH IN THE
COURSE OF THIS REPORT AND RECOMMENDATIONS.
DURING THE COURSE OF THE HEARING IT BECAME EVIDENT THAT THE VALIDITY
OF CERTAIN REGULATIONS OF THE CIVIL SERVICE COMMISSION AND OF THE
DEPARTMENT OF DEFENSE MIGHT BE RELEVANT TO THE DECISION IN THIS CASE.
ACCORDINGLY, AND WITH FULL NOTICE TO THE PARTIES, THE HEARING EXAMINER
AFTER THE CLOSE OF THE HEARING INVITED THOSE AGENCIES TO STATE THEIR
POSITION IN THIS MATTER. SUCH STATEMENTS WERE DULY RECEIVED AND HAVE
BEEN CONSIDERED, TOGETHER WITH THE BRIEFS, FILED BY THE PARTIES HERETO.
UPON SUCH CONSIDERATION AND UPON THE ENTIRE RECORD IN THIS PROCEEDING, I
MAKE THE FOLLOWING:
SECTION 1 OF EXECUTIVE ORDER 11491 DECLARES THAT "EACH EMPLOYEE OF
THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT HAS THE RIGHT, FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION OR TO REFRAIN FROM ANY SUCH ACTIVITY, AND EACH EMPLOYEE
SHALL BE PROTECTED IN THE EXERCISE OF THIS RIGHT." SECTION 19(A)
PROVIDES THAT "AGENCY MANAGEMENT SHALL NOT (1) INTERFERE WITH, RESTRAIN
OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY THIS
ORDER." THE UNION IS A "LABOR ORGANIZATION" AS THAT TERM IS USED IN
SECTION 1 AND DEFINED IN SECTION 2(E) OF THE ORDER. THE COMMANDING
OFFICER OF THE RESPONDENT IS "AGENCY MANAGEMENT" AS THAT TERM IS USED IN
SECTION 19 AND DEFINED IN SECTION 2(F) OF THE ORDER.
FOR SEVERAL YEARS THE UNION HAS BEEN THE BARGAINING REPRESENTATIVE OF
SOME 5000 EMPLOYEES OF THE RESPONDENT. THE PARTIES HAVE A CURRENT
COLLECTIVE-BARGAINING AGREEMENT WHICH PROVIDES, INTER ALIA, FOR A
GRIEVANCE PROCEDURE CULMINATING IN "ADVISORY ARBITRATION" NOT BINDING
UPON THE RESPONDENT. THE CONTRACT ALSO PROVIDES (ARTICLE VI, SECTION 4)
THAT "REASONABLE TIME OFF DURING WORK HOURS WILL BE AUTHORIZED WITHOUT
LOSS OF PAY OR BENEFITS, TO PERMIT THE RECOGNIZED (UNION STEWARDS) . . .
TO CARRY OUT THEIR RESPONSIBILITIES TO THE EMPLOYEES IN THE UNIT." THE
SUCCEEDING SECTION OF THE CONTRACT PROVIDES THAT A UNION REPRESENTATIVE
DESIRING TO LEAVE HIS WORK AREA ON "APPROPRIATE" UNION BUSINESS DURING
WORK HOURS "SHALL FIRST OBTAIN ORAL PERMISSION FROM HIS SUPERVISOR," AND
UPON ENTERING ANOTHER WORK AREA "WILL FIRST ADVISE THE APPROPRIATE
SUPERVISOR OF HIS PRESENCE AND THE NAME OF THE EMPLOYEE TO BE CONTACTED.
THE SUPERVISORS INVOLVED WILL GRANT PERMISSION PROMPTLY IN THESE
INSTANCES UNLESS COMPELLING WORK COMMITMENTS DICTATE OTHERWISE."
DURING 1969 ANOTHER ORGANIZATION, THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES (HEREIN REFERRED TO AS NAGE), COMMENCED EFFORTS TO
UNSEAT THE UNION AS THE BARGAINING REPRESENTATIVE OF RESPONDENT'S
EMPLOYEES. IN JANUARY 1970 NAGE FILED A FORMAL CHALLENGE TO THE
EXCLUSIVE RECOGNITION AFFORDED THE UNION, AND PETITIONED FOR AN
ELECTION. THE ELECTION HAS NOT AS YET BEEN CONDUCTED. BOTH BEFORE AND
AFTER THE FILING OF THE NAGE CHALLENGE, HOWEVER, SUPPORTERS OF THAT
ORGANIZATION AND SUPPORTERS OF THE INCUMBENT UNION ENGAGED IN ACTIVITY
IN THE SHIPYARD ON BEHALF OF THEIR RESPECTIVE ORGANIZATIONS. ALSO, THE
SHIPYARD OFFICIALS OBSERVED THAT AFTER NAGE APPEARED ON THE SCENE THE
STEWARDS SERVING THE UNION SUBSTANTIALLY INCREASED THE AMOUNT OF TIME
THEY WERE DEVOTING TO UNION BUSINESS DURING WORKING HOURS.
IN DECEMBER 1966 THE UNITED STATES CIVIL SERVICE COMMISSION ADDRESSED
TO THE "HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS" A LETTER
(FPM LETTER NO. 711-6) FURNISHING "GUIDANCE AS TO APPROPRIATE AGENCY
POLICY IN THE SITUATION WHERE ONE EMPLOYEE ORGANIZATION HOLDS EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 10988 (PREDECESSOR TO EXECUTIVE ORDER
11491 ON THE SUBJECT OF FEDERAL EMPLOYEE LABOR RELATIONS), AND ONE OR
MORE EMPLOYEE ORGANIZATIONS SEEK TO COMPETE WITH THE RECOGNIZED
ORGANIZATION FOR THE RIGHT OF EXCLUSIVE RECOGNITION." THE LETTER STATED
IN PART:
ONCE EXCLUSIVE RECOGNITION HAS BEEN GRANTED IN A GIVEN UNIT AND UNTIL
A VALID, TIMELY
CHALLENGE HAS BEEN PRESENTED AND RULES GOVERNING CAMPAIGNING
ESTABLISHED, NO ASSISTANCE SHOULD
BE GIVEN BY THE AGENCY TO ANY OTHER EMPLOYEE ORGANIZATION, INCLUDING
ANY ORGANIZATION HOLDING
INFORMAL RECOGNITION, FOR THE PURPOSE OF AIDING IT TO SOLICIT
MEMBERSHIP OR AUTHORIZATION
CARDS. THIS MEANS THE AGENCY SHOULD NOT GRANT THE USE OF MEETING
ROOMS DURING NONWORK HOURS,
PERMISSION TO DISTRIBUTE LITERATURE, OR PERMISSION TO NONEMPLOYEES TO
SOLICIT MEMBERSHIP ON
AGENCY PREMISES. AN AGENCY SHOULD NOT ALLOW THE USE OF BULLETIN
BOARDS TO ANY EMPLOYEE
ORGANIZATION OTHER THAN THE EXCLUSIVE REPRESENTATIVE, BUT MAY
AUTHORIZE AN ORGANIZATION WITH
INFORMAL RECOGNITION TO POST A NOTICE OF A MEETING OF ITS MEMBERS TO
BE HELD OFF AGENCY
PREMISES.
THE DEPARTMENT OF DEFENSE IN ITS DIRECTIVE NO. 1426.1 ON
"LABOR-MANAGEMENT RELATIONS IN THE DEPARTMENT OF DEFENSE," ISSUED MARCH
26, 1970, "IN ORDER TO PROMOTE EFFECTIVE, EQUITABLE, AND UNIFORM
IMPLEMENTATION WITHIN THE DEPARTMENT OF THE POLICIES, RIGHTS, AND
RESPONSIBILITIES PRESCRIBED IN EXECUTIVE ORDER 11491," STATES IN ARTICLE
VII, SECTION A:
1. SOLICITATION OF MEMBERSHIP AND SUPPORT. LABOR ORGANIZATIONS WILL
BE AFFORDED
OPPORTUNITIES TO SOLICIT MEMBERSHIP AND/OR SUPPORT AMONG EMPLOYEES OF
DOD ACTIVITIES. SUBJECT
TO THE CONDITIONS HEREIN, NORMAL SECURITY REGULATIONS, AND REASONABLE
RESTRICTIONS WITH REGARD
TO THE FREQUENCY, DURATION, LOCATIONS, AND NUMBER OF PERSONS INVOLVED
IN SUCH ACTIVITIES,
LABOR ORGANIZATION REPRESENTATIVES WILL BE PERMITTED, UPON REQUEST,
TO DISTRIBUTE LITERATURE
OR TO HOLD ORGANIZATIONAL MEETINGS AT THE ACTIVITY. PERMISSION MAY
BE WITHDRAWN, HOWEVER,
WITH RESPECT TO ANY SUCH ACTIVITIES WHICH INTERFERE WITH THE WORK OF
THE ACTIVITY. PERMISSION
MAY NOT BE EXTENDED FOR SUCH ACTIVITIES AMONG EMPLOYEES IN A UNIT
WHERE ANOTHER LABOR
ORGANIZATION HAS BEEN GRANTED EXCLUSIVE RECOGNITION UNLESS A VALID,
TIMELY CHALLENGE TO SUCH
RECOGNITION HAS BEEN FILED AND RULES FOR ELECTION CAMPAIGNING
ADOPTED.
ON FEBRUARY 18, 1970, RESPONDENT, ACTING THROUGH ITS COMMANDING
OFFICER, POSTED THE FOLLOWING NOTICE AT THE SHIPYARD:
SUBJ: REGULATIONS GOVERNING UNION ELECTIONEERING ACTIVITIES
REF: (A) EXECUTIVE ORDER 11491
1. PURPOSE. TO ADVISE ALL EMPLOYEES OF THE SHIPYARD OF THE
DEPARTMENT OF THE NAVY POLICY GOVERNING A SITUATION WHERE ONE EMPLOYEE
ORGANIZATION HOLDS EXCLUSIVE RECOGNITION, AND ONE OR MORE EMPLOYEE
ORGANIZATIONS SEEK TO COMPETE WITH THE RECOGNIZED ORGANIZATION FOR THE
RIGHT OF EXCLUSIVE RECOGNITION.
2. DISCUSSION. THE EXCLUSIVE RECOGNITION AFFORDED THE CHARLESTON
METAL TRADES COUNCIL IN THE SHIPYARD HAS BEEN CHALLENGED IN A TIMELY
MANNER BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES. THE
MATERIAL SUBMITTED BY NAGE IN SUPPORT OF THE CHALLENGE HAS BEEN
DELIVERED TO THE DEPARTMENT OF LABOR AND THE SHIPYARD IS AWAITING
GUIDANCE ON HOW TO PROCEED UNDER REFERENCE (A) WITH THE VALIDATION OF
SUPPORT AUTHORIZATIONS FROM AMONG MEMBERS OF THE UNIT. VALIDATION OF
THE CHALLENGE WOULD RESULT IN AN ELECTION BEING HELD.
3. POLICY. IN ORDER THAT FAIR AND IMPARTIAL TREATMENT OF ALL
PARTIES TO THE ACTION WILL RESULT, AND BECAUSE THE ISSUANCE OF REFERENCE
(A) ON 1 JANUARY 1970 WHICH RESULTED IN SOME INSTANCES OF CONFLICT WITH
DIRECTIVES BASED ON EXECUTIVE ORDER 10988, THE PREDECESSOR TO REFERENCE
(A), AND FOR THE PURPOSE OF CLARIFYING THE EXISTING SITUATION, THE
FOLLOWING LOCAL REGULATIONS ARE ESTABLISHED EFFECTIVE THIS DATE
REGARDING UNION ACTIVITIES RELATED TO THE CHALLENGE.
A. NEITHER THE CURRENTLY RECOGNIZED CHARLESTON METAL TRADES COUNCIL
NOR THE CHALLENGING
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES SHALL CONDUCT ANY TYPE
OF ELECTIONEERING ON NAVAL
BASE PREMISES UNTIL CAMPAIGN PROCEDURES ARE ESTABLISHED. PROHIBITED
ACTIONS INCLUDE:
(1) POSTING OR DISTRIBUTION ON NAVAL BASE PREMISES OF ANY POSTER,
BULLETIN OR OTHER
MATERIAL WHICH RELATES TO THE CHALLENGE;
(2) MEETINGS ON NAVAL BASE PREMISES FOR THE PURPOSE OF ELECTIONEERING
OR CAMPAIGNING;
(3) SOLICITATION OF AUTHORIZATION REVOCATIONS BY THE CHALLENGED UNION
ON NAVAL BASE
PREMISES;
(4) SOLICITATION OF FURTHER AUTHORIZATIONS BY THE CHALLENGING UNION
ON NAVAL BASE PREMISES.
B. THE PROHIBITIONS STATED IN PARAGRAPH 3.A., ABOVE, APPLY EQUALLY
TO EMPLOYEES AND
NON-EMPLOYEE REPRESENTATIVES OF THE ORGANIZATIONS INVOLVED.
NON-EMPLOYEE REPRESENTATIVES WHO
VIOLATE THE POLICY STATED HEREIN MAY BE DENIED ACCESS TO THE SHIPYARD
UNTIL SUCH TIME AS THE
CHALLENGE MAY BE VALIDATED AND ANY ENSUING CAMPAIGN AND ELECTION ARE
COMPLETED.
C. THE CHARLESTON METAL TRADES COUNCIL, AS RECOGNIZED EXCLUSIVE
REPRESENTATIVE OF THE UNIT
INVOLVED IN THE CHALLENGE, IS STILL ENTITLED TO THE PRIVILEGES
NEGOTIATED IN ARTICLE III,
SECTION 9, OF THE CURRENT AGREEMENT BETWEEN THE SHIPYARD AND THE
COUNCIL.
4. ACTION. MANAGEMENT, INCLUDING ALL LEVELS OF SUPERVISION IN THE
SHIPYARD, WILL MAKE EVERY EFFORT TO PREVENT OCCURRENCES OF ACTIVITIES
PROHIBITED BY THIS NOTICE. ALL INSTANCES OF POSSIBLE VIOLATIONS WILL BE
REPORTED IMMEDIATELY TO THE COGNIZANT DEPARTMENT OF OFFICE HEAD, WHO
SHALL CONDUCT A PROMPT INVESTIGATION. COMPLETED INVESTIGATIONS, ALONG
WITH REPORTS ON ANY ACTION TAKEN, SHALL BE FORWARDED WITHOUT DELAY TO
THE DIRECTOR OF INDUSTRIAL RELATIONS. WHERE THERE IS EVIDENCE OF
VIOLATION OF THIS NOTICE BY EMPLOYEES SUCH ACTION AS DEEMED APPROPRIATE
UNDER ESTABLISHED DISCIPLINARY PROCEDURES SHOULD BE TAKEN. RECOMMENDED
ACTION INVOLVING NON-FEDERAL PERSONNEL SHALL BE SUBMITTED TO THE
SHIPYARD COMMANDER VIA THE DIRECTOR OF INDUSTRIAL RELATIONS.
5. CANCELLATION. THIS NOTICE IS CANCELLED 30 JUNE 1970.
THE PARTIES STIPULATED THAT THE NOTICE OF FEBRUARY 18 WAS ENFORCED IN
ACCORDANCE WITH ITS TERMS. SEVERAL WEEKS LATER, ON MARCH 16, 1970, THE
COMMANDING OFFICER OF THE SHIPYARD SENT THE FOLLOWING MEMORANDUM TO HIS
IMMEDIATE SUBORDINATES, AND FURNISHED A COPY THEREOF TO THE PRESIDENT OF
THE UNION:
SUBJ: "TIME ALLOWED" FOR CHARLESTON METAL TRADES COUNCIL OFFICERS,
CHIEF STEWARDS AND SHOP STEWARDS
REF: (A) CHARLESTON NAVAL SHIPYARD - CHARLESTON METAL TRADES COUNCIL
NEGOTIATED AGREEMENT OF 19 MARCH 1968
(B) EXECUTIVE ORDER 11491 OF 29 OCTOBER 1969
1. IT HAS COME TO MY ATTENTION, AND I AM SURE IT IS OBVIOUS TO YOU,
THAT CERTAIN OFFICIALS OF THE CHARLESTON METAL TRADES COUNCIL,
PARTICULARLY CHIEF STEWARDS AND SHOP STEWARDS, RECENTLY HAVE BEEN USING
MORE THAN NORMAL NUMBERS OF WORK HOURS FOR THE CONDUCT OF UNION
BUSINESS. IT IS NOT MY INTENTION TO IN ANY WAY DISRUPT OR LIMIT THE
STEWARDS' RESPONSIBILITIES FOR SERVICING THE AGREEMENT OF REPRESENTING
MEMBERS OF THE CHARLESTON METAL TRADES COUNCIL UNIT AS PROVIDED FOR IN
REFERENCE (A). HOWEVER, WITH OVERHEAD COSTS OF OPERATING THE SHIPYARD
RISING AND THE NEED FOR INCREASED FINANCIAL RESPONSIBILITY IN THE FACE
OF HIGHER MATERIAL AND LABOR EXPENDITURES, COUPLED WITH BUDGETARY
LIMITATIONS, IT IS MY INTENTION TO INSURE THAT THE SHIPYARD WILL RECEIVE
FULL PRODUCTIVE EFFORT FROM EACH AND EVERY AVAILABLE MEMBER OF THE WORK
FORCE. PARTICULAR ATTENTION SHOULD BE GIVEN TO ANY SITUATION WHERE A
GIVEN REPRESENTATIVE OF COUNCIL HAS, OVER THE LIFE OF REFERENCE (A),
SPENT ONLY A REASONABLE AMOUNT OF TIME ON COUNCIL BUSINESS, FOR EXAMPLE
25% TO 35%, AND NOW REQUESTS PERMISSION TO SPEND FULL TIME OR
SUBSTANTIALLY FULL TIME THEREON.
2. IF ANY SHIPYARD SUPERVISOR IS APPROACHED BY A CHARLESTON METAL
TRADES COUNCIL CHIEF OR SHOP STEWARD WHO REQUESTS, IN ACCORDANCE WITH
REFERENCE (A), PERMISSION TO LEAVE THE JOB FOR THE PURPOSE OF CONDUCTING
UNION BUSINESS TO BE CONDUCTED AND SHALL APPROVE THE REQUEST ONLY IF THE
BUSINESS TO BE CONDUCTED IS IN ACCORDANCE WITH THE PROVISIONS OF
REFERENCE (A).
3. FOR INFORMATION, AMONG THE MAJOR REASONS FOR STEWARDS'
PARTICIPATION IN SERVICING THE AGREEMENT, REPRESENTING MEMBERS OF THE
UNIT, CONDUCTING UNION BUSINESS ARE LISTED BELOW. THIS LIST IS NOT
NECESSARILY ALL INCLUSIVE, BUT SHOULD COVER ALL BUT A VERY FEW OF THE
TYPES OF SITUATIONS IN WHICH ABSENCE FROM THE JOB OF A CHIEF STEWARD OR
SHOP STEWARD SHOULD BE APPROVED UNLESS COMPELLING WORK COMMITMENTS
DICTATE OTHERWISE.
4. ELECTIONEERING OR CAMPAIGNING AT THIS TIME IS PROHIBITED.
MOREOVER, SOLICITATION OF MEMBERSHIP OR DUES, AND THE CONDUCT OF
INTERNAL BUSINESS OF THE METAL TRADES COUNCIL OR ANY OF THE AFFILIATED
UNIONS ON OFFICIAL TIME IS SPECIFICALLY PROHIBITED BY SECTION 20 OF
REFERENCE (B).
5. EXCEPT FOR THOSE COUNCIL OFFICIALS WHO HAVE, THROUGHOUT THE LIFE
OF REFERENCE (A), BEEN SPENDING FULL TIME ON COUNCIL BUSINESS, COUNCIL
REPRESENTATIVES SHOULD NOT BE GRANTED BLANKET EXCUSAL. WHILE REASON
MUST BE APPLIED, THEY SHOULD BE REQUIRED TO FURNISH SUFFICIENT
INFORMATION REGARDING THE BUSINESS TO BE CONDUCTED TO ENABLE MANAGEMENT
TO MAKE REASONABLE AND JUST DETERMINATION AS TO THE PROPRIETY OF EXCUSED
TIME. FAILURE TO ESTABLISH A REASONABLE BASIS OR REFUSAL TO FURNISH
SUCH INFORMATION SHOULD BE CONSIDERED GROUNDS FOR REFUSING THE EXCUSED
TIME. IF EXCUSAL IS DENIED, THE EMPLOYEE MUST BE INFORMED OF THE
REASONS AND SUFFICIENT DOCUMENTED RECORDS SHALL BE RETAINED TO ENABLE
THE SHIPYARD TO DEFEND ITS ACTION SHOULD A COMPLAINT BE FILED.
ON MARCH 27 THE COMMANDING OFFICER AMPLIFIED HIS MEMORANDUM OF MARCH
16, AGAIN SENDING A COPY TO THE UNION PRESIDENT. THIS MEMORANDUM, AFTER
QUOTING ARTICLE VI, SECTION 5, OF THE CONTRACT, STATES:
IT IS MY INTERPRETATION OF THE FOREGOING AND MY POSITION THAT A CHIEF
STEWARD OR STEWARD WHO DESIRES TO LEAVE HIS WORK AREA ON COUNCIL
BUSINESS NEEDS TO INFORM THE SUPERVISOR OF:
A. WHERE HE IS GOING;
B. THE NAME, IF KNOWN, OF THE PERSON OR PERSONS WHOM HE PLANS TO
CONTACT;
C. THE GENERAL TYPE OF BUSINESS TO BE CONDUCTED: I.E., "TO WORK ON
GRIEVANCE," "TO ATTEND
A CAFETERIA BOARD MEETING," "TO DISCUSS A COMPLAINT," ETC.; AND,
D. APPROXIMATELY HOW LONG HE EXPECTS TO BE GONE.
ONLY IF HE IS IN RECEIPT OF THIS TYPE OF INFORMATION CAN A SUPERVISOR
PROPERLY DETERMINE IF THE BUSINESS TO BE CONDUCTED IS "APPROPRIATE," AS
DESCRIBED IN ARTICLE VI, SECTION 5 OF THE AGREEMENT.
I ALSO REPEAT THAT IT IS NOT MY INTENTION TO INHIBIT IN ANY WAY THE
UNION'S RESPONSIBILITY FOR SERVICING OF THE AGREEMENT OR FOR
REPRESENTING MEMBERS OF THE UNIT IN ACCORDANCE WITH AGREEMENT.
RESPONDENT ADMITTED AT THE HEARING THAT THE DESIRE TO LIMIT
ELECTIONEERING ACTIVITIES AT THE SHIPYARD WAS ONE OF THE REASONS FOR THE
ISSUANCE OF THE MARCH 16 MEMORANDUM.
THE UNION URGES THAT THE NOTICE OF FEBRUARY 18 INSOFAR AS IT
RESTRICTS EMPLOYEES FROM "ANY TYPE OF ELECTIONEERING ON NAVAL BASE
PREMISES UNTIL CAMPAIGN PROCEDURES ARE ESTABLISHED" IS AN UNFAIR LABOR
PRACTICE AS EMPLOYEES ARE PROTECTED BY THE EXECUTIVE ORDER IN ENGAGING
IN "ELECTIONEERING" ON NONWORK TIME AND ALSO IN NONWORK AREAS. THE
UNION AT THE HEARING STATED THAT THE SAME RIGHTS WERE POSSESSED BY THOSE
EMPLOYEES SUPPORTING A RIVAL ORGANIZATION. WITH RESPECT TO THE
MEMORANDUM OF MARCH 16, AS AMPLIFIED MARCH 27, THE UNION AGAIN RELIES ON
THE INVALIDITY OF THE RESTRICTION, THEREIN REPEATED, ON ELECTIONEERING.
THE UNION EXPRESSLY DISCLAIMED ANY CONTENTION THAT THE RESTRICTIONS
WHICH THE MARCH 16 AND 27 MEMORANDA IMPOSED ON STEWARDS (I.E., THE
REQUIREMENT THAT THEY DIVULGE TO THEIR SUPERVISOR CERTAIN INFORMATION
CONCERNING THE PURPOSE AND PROBABLE DURATION OF THEIR ABSENCE) WAS
INHERENTLY UNLAWFUL. THE UNION DOES CONTEND, HOWEVER, THAT BECAUSE THE
RESTRICTIONS ANNOUNCED IN THOSE MEMORANDA HAD THEIR GENESIS, AT LEASE IN
PART, IN RESPONDENT'S DESIRE TO CONTROL UNION ACTIVITY BECAUSE OF THE
IMPENDING ELECTION, THE MEMORANDA WERE TAINTED BY THAT ILLEGAL
OBJECTIVE.
RESPONDENT CONTENDS THAT ITS NOTICE AND MEMORANDA WERE IN ACCORDANCE
WITH OUTSTANDING GOVERNMENT DIRECTIVES, BINDING UPON IT, AND INDEED WERE
PROMPTED BY REQUESTS OF THE UNION ITSELF WHICH HAD SOUGHT TO RESTRICT
SOLICITATION BY ITS RIVAL. RESPONDENT, DESIRING TO PRESERVE THE
POSSIBILITY OF A FAIR ELECTION, DECIDED TO IMPOSE ON THE INCUMBENT UNION
THE SAME RESTRICTIONS WHICH RESPONDENT UNDERSTOOD IT HAD TO IMPOSE ON
THE CHALLENGER. FINALLY, RESPONDENT SUGGESTS THAT RULES DEVELOPED UNDER
THE NATIONAL LABOR RELATIONS ACT NEED NOT BE FOLLOWED UNDER THE
EXECUTIVE ORDER.
AS NOTED ABOVE, RESPONDENT AT THE OPENING OF THE HEARING FILED A
MOTION TO DISMISS. INSOFAR AS THE COMPLAINT ATTACKED THE FEBRUARY 18
NOTICE, RESPONDENT URGED THAT IT WAS WILLING TO MODIFY THE NOTICE, THAT
IT HAD SOLICITED SUGGESTIONS AND PROPOSED MODIFICATIONS FROM
COMPLAINANT, AND THAT NO SUCH PROPOSAL HAD BEEN RECEIVED. RESPONDENT
SUBMITTED AS A PART OF ITS MOTION A PROPOSED VERSION OF THE NOTICE,
WHICH, HOWEVER, RETAINED RESTRICTIONS ON "ELECTIONEERING" ON THE
SHIPYARD AT ALL TIMES, ALTHOUGH IT EXPRESSLY PERMITTED EMPLOYEES TO
SOLICIT ON BEHALF OF THE UNION DURING NONWORKING TIME. RESPONDENT
RESTED THIS PORTION OF ITS MOTION ON 29 CFR 203.7, WHICH STATES THAT THE
REGIONAL ADMINISTRATOR MAY DISMISS A COMPLAINT UNDER THE EXECUTIVE ORDER
IF HE "DETERMINES . . . THAT A SATISFACTORY OFFER OF SETTLEMENT HAS BEEN
MADE."
RESPONDENT ALSO MOVED TO DISMISS THE COMPLAINT WITH RESPECT TO THE
MARCH 16 MEMORANDUM, URGING THAT THE COMPLAINT ON ITS FACE ALLEGED A
VIOLATION OF THE CONTRACT BETWEEN THE PARTIES, WHICH CONTRACT PROVIDES
"A COMPLETE, EXCLUSIVE AND ADEQUATE REMEDY FOR THE MATTERS COMPLAINED OF
. . . "
GENERAL COUNSEL OF THE CIVIL SERVICE COMMISSION STATES THAT "WE HAVE
NO CURRENT INTENTION OF RECOMMENDING TO THE COMMISSION THAT IT RESCIND
OR CHANGE THE ADVICE GIVEN IN THE LETTER (FPM LETTER NO. 711.6)." HE
FURTHER STATES:
WITH SPECIFIC REFERENCE TO THE USE OF AGENCY FACILITIES, IT IS OUR
VIEW THAT A UNION WITH EXCLUSIVE RECOGNITION SHOULD HAVE FULL
OPPORTUNITY TO EXERCISE THE RIGHTS THAT COME WITH THAT RECOGNITION.
HOWEVER, WE BELIEVE THAT EXCLUSIVE RIGHTS DO NOT PROPERLY EXTEND TO THE
USE OF AGENCY FACILITIES FOR ELECTION CAMPAIGNING. WITHIN THE CONTEXT
OF LABOR-MANAGEMENT RELATIONS (AND THIS WOULD BE SO UNDER E.O. 10988 AND
E.O. 11491) AGENCY FACILITIES ARE MADE AVAILABLE FOR THE PURPOSES OF
REPRESENTATION OF EMPLOYEES TO AGENCY MANAGEMENT. IN OUR JUDGMENT, ONCE
A VALID AND TIMELY CHALLENGE TO EXCLUSIVITY HAS BEEN MADE, NEITHER THE
INCUMBENT NOR THE CHALLENGING UNION SHOULD BE PERMITTED TO USE AGENCY
FACILITIES (BULLETIN BOARDS, MEETING ROOMS, ETC.) FOR REPRESENTATION
ELECTION CAMPAIGNING, UNTIL RULES HAVE BEEN ESTABLISHED, PREFERABLY
THROUGH AN ELECTION AGREEMENT, ON USE OF SUCH FACILITIES. THIS IS THE
MOST REASONABLE APPROACH WE HAVE DISCOVERED TO ACHIEVING AMONG THE
CONTENDING UNIONS THE REQUISITE FAIRNESS OR EQUALITY OF OPPORTUNITY
WHICH ALONE CAN GUARANTEE A GENUINELY FREE AND REPRESENTATIVE ELECTION.
THE DEPARTMENT OF DEFENSE SUGGESTS THAT A PROHIBITION OF CAMPAIGNING
OR ELECTIONEERING UNTIL ELECTION RULES HAVE BEEN WORKED OUT IS A
REASONABLE MEANS OF AVOIDING DISRUPTION OF WORK. IT FURTHER SUGGESTS,
AS DOES RESPONDENT, THAT DECISIONS UNDER THE NATIONAL LABOR RELATIONS
ACT NEED NOT BE APPLIED UNDER THE EXECUTIVE ORDER.
TURNING FIRST TO THE MOTION TO DISMISS, IT IS HEREBY DENIED. WITH
RESPECT TO THE CLAIM OF SETTLEMENT, THE AMENDED NOTICE NOW SUGGESTED BY
RESPONDENT IS NOT "A SATISFACTORY OFFER OF SETTLEMENT" AS IT RETAINS
SOME OF THE FEATURES THE COMPLAINANT FOUND OBJECTIONABLE IN THE ORIGINAL
NOTICE. RESPONDENT'S PROFESSED READINESS TO ACCOMMODATE ITSELF TO
MODIFICATIONS PROPOSED BY COMPLAINANT DOES NOT REQUIRE DISMISSAL.
COMPLAINANT SEEKS RECISSION OF THE NOTICE, AND IS UNDER NO LEGAL
OBLIGATION TO PROPOSE MODIFICATIONS. WITH RESPECT TO THE ALLEGED
FAILURE TO EXHAUST THE CONTRACTURAL PROVISIONS FOR RELIEF, IT SHOULD BE
NOTED THAT THOSE PROCEDURES CULMINATE IN "ADVISORY ARBITRATION," NOT
BINDING ON RESPONDENT. WHAT IS AT ISSUE IN THIS CASE IS THE EXTENT OF
EMPLOYEE RIGHTS UNDER THE EXECUTIVE ORDER, A QUESTION OF LAW, NOT OF
FACT, AND ANY RESOLUTION THEREOF, WHETHER BY AGREEMENT OR BY
ARBITRATION, WHICH DID NOT RESOLVE THE LEGAL ISSUE OR WHICH RESOLVED IT
CONTRARY TO THE PROVISIONS OF THE EXECUTIVE ORDER WOULD BE NO BAR TO
MAINTAINING THIS ACTION UNDER THE ORDER.
COMING TO THE MERITS, THE EXECUTIVE ORDER IS PLAINLY MODELED ON THE
PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT. THE ORDER ASSURES
EMPLOYEES THE RIGHT "TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION" AND
MAKES IT AN "UNFAIR LABOR PRACTICE" FOR "AGENCY MANAGEMENT" TO
"INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE
RIGHTS" SO "ASSURED." THE STATUTE PROVIDES IN SECTION 7 FOR THE RIGHT TO
"FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS," AND MAKES IT "AN UNFAIR
LABOR PRACTICE" FOR AN EMPLOYER TO "INTERFERE WITH, RESTRAIN, OR COERCE
EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION 7." THE
INCONSEQUENTIAL VARIANCES IN THE TEXT MARK NO DIFFERENCE IN RESULT: SO
FAR AS WE ARE HERE CONCERNED THE DECISIONS UNDER THE STATUTE DEALING
WITH EMPLOYEE RIGHTS /2/ IN SOLICITATION AND IN DISTRIBUTION OF
LITERATURE ARE APPLICABLE UNDER THE ORDER. THESE RULES, RECENTLY
REITERATED BY THE NATIONAL LABOR RELATIONS BOARD IN CASES DECIDED IN
JUNE 1970, /3/ MAY BE SUCCINCTLY STATED AS FOLLOWS:
1. EMPLOYEES ARE FREE TO ENGAGE IN ORAL SOLICITATION ON BEHALF OF A
LABOR ORGANIZATION ANYWHERE ON THE EMPLOYER'S PREMISES IN NONWORKING
TIME.
2. EMPLOYEES ARE FREE TO DISTRIBUTE UNION LITERATURE IN NONWORKING
AREAS OF THE EMPLOYER'S PREMISES.
3. RULES LIMITING SOLICITATION OR DISTRIBUTION, PRESUMPTIVELY VALID
UNDER THE FOREGOING PRINCIPLES, MAY BE INVALID IF ADOPTED FOR A
DISCRIMINATORY /4/ PURPOSE.
APPLYING THOSE PRINCIPLES TO THE RULES AGAINST "ELECTIONEERING
ADOPTED BY THE RESPONDENT, IT SEEMS CLEAR THAT THE RULES ARE INVALID IN
THAT THEY RESTRICT SOLICITATION EVEN DURING NONWORKING TIME AND RESTRICT
DISTRIBUTION OF LITERATURE IN NONWORKING AREAS. MOREOVER, RESPONDENT
ADMITS THAT THE MEMORANDUM OF MARCH 16 WAS CAUSED, AT LEAST IN PART, BY
A DESIRE TO CONTROL "ELECTIONEERING" OF A NATURE WHICH, AS I INTERPRET
THE EXECUTIVE ORDER, IS PROTECTED THEREBY. IT FOLLOWS THAT THE
COMPLAINTS ARE WELL TAKEN AND SHOULD BE SUSTAINED.
IN THIS CONNECTION I SHOULD ADD THAT I FIND NO WARRANT ANYWHERE IN
THE EXECUTIVE ORDER FOR THE DISTINCTION WHICH RESPONDENT AND THE OTHER
GOVERNMENT AGENCIES HERE REPRESENTED PURPORT TO FIND BETWEEN
"ELECTIONEERING" OR "CAMPAIGNING" ON THE ONE HAND AND OTHER UNION
SOLICITATION OR DISTRIBUTION OF LITERATURE ON THE OTHER. THE EXECUTIVE
ORDER ASSURES EMPLOYEES THE RIGHT TO "ASSIST" A LABOR ORGANIZATION.
PROTECTION OF THIS RIGHT MUST BE BALANCED AGAINST THE GOVERNMENT'S
INTEREST, AS AN EMPLOYER, IN MAINTAINING DISCIPLINE AND PRODUCTION. BUT
THIS BALANCE IS NO DIFFERENT FROM THAT STRUCK UNDER THE NATIONAL LABOR
RELATIONS ACT. TO BE SURE, UNDER THE EXECUTIVE ORDER, AS UNDER THAT
ACT, SPECIAL CIRCUMSTANCES MAY BE SHOWN IN PARTICULAR CASES, OR IN
PARTICULAR TYPES OF CASES, NECESSITATING A DIFFERENT RULE FROM THAT
GENERALLY APPLICABLE. BUT NO SPECIAL CIRCUMSTANCES ARE SHOWN HERE, AND
NONE ARE EVEN SUGGESTED EXCEPT THAT THE GOVERNMENT AS EMPLOYER IS MORE
NEUTRAL IN THESE MATTERS THAN A PRIVATE EMPLOYER. ASSUMING THIS TO BE
TRUE, IT IN NO WAY DETRACTS FROM THE GENERAL PROTECTION WHICH THE
EXECUTIVE ORDER AFFORDS IN TERMS SUBSTANTIALLY IDENTICAL TO THOSE IN THE
ACT. STATED CONVERSELY, THERE IS NO MORE REASON TO PERMIT RESPONDENT TO
RESTRICT OR PROHIBIT "ELECTIONEERING" OR "CAMPAIGNING" UNDER THE
EXECUTIVE ORDER THAN THERE IS TO PERMIT A PRIVATE EMPLOYER TO DO SO
UNDER THE NATIONAL LABOR RELATIONS ACT. SUCH RESTRICTIONS, INSOFAR AS
THEY LIMIT UNION ACTIVITY ON AN EMPLOYEE'S FREE TIME OR IN NONWORK
AREAS, ARE INVALID AS INFRINGEMENTS OF THE RIGHT TO "ASSIST" A LABOR
ORGANIZATION.
RESPONDENT FURTHER DEFENDS ITS ACTIONS ON THE GROUND THAT IT WAS
LEGALLY OBLIGATED TO FOLLOW THE DIRECTIVES OF THE CIVIL SERVICE
COMMISSION AND THE DEPARTMENT OF DEFENSE. THE DIRECTIVE OF THE LATTER
IS DATED SUBSEQUENT TO THE NOTICES HERE COMPLAINED OF, AND THAT OF THE
FORMER WAS ISSUED PURSUANT TO AN EARLIER EXECUTIVE ORDER, NOT HERE
INVOKED. BUT ASIDE FROM THOSE DEFICIENCIES IN THE SUGGESTED DEFENSE, I
WOULD NOT REGARD IT AS ADEQUATE. WE ARE HERE CONCERNED WITH THE RIGHTS
OF EMPLOYEES UNDER THE EXECUTIVE ORDER. THESE RIGHTS ARE NOT DIMINISHED
BY ERRONEOUS RULINGS OF THE CIVIL SERVICE COMMISSION OR THE DEPARTMENT
OF DEFENSE. THE QUESTION IS NOT WHETHER RESPONDENT ACTED IN GOOD FAITH,
BUT WHETHER ITS ACTION INFRINGED THOSE RIGHTS. HENCE THERE IS NO NEED
HERE TO ENTER THE LEGAL THICKET SURROUNDING THE QUESTION WHETHER IN
OTHER CIRCUMSTANCES A MEMBER OF THE ARMED FORCES, SUCH AS THE COMMANDING
OFFICER OF THE SHIPYARD, IS ABSOLVED OF PERSONAL RESPONSIBILITY BECAUSE
HE FOLLOWED IMPROPER ORDERS OF HIS SUPERIORS.
IN FRAMING APPROPRIATE RELIEF IN THIS CASE, IT SHOULD BE NOTED THAT
THE UNION EXPRESSLY DISCLAIMED AT THE HEARING ANY CONTENTION THAT
RESPONDENT WOULD VIOLATE EITHER THE CONTRACT OR THE EXECUTIVE ORDER IF,
FOR NONDISCRIMINATORY REASONS, RESPONDENT IMPOSED ON THE UNION STEWARDS
THE RESTRICTIONS SET FORTH IN THE MEMORANDUM OF MARCH 27. ALSO, IN
FAIRNESS TO THE RESPONDENT, IT MUST BE OBSERVED THAT THE BROAD
RESTRICTIONS IT PROMULGATED, ALBEIT UNLAWFUL, RESULTED FROM ITS EFFORT
TO RECONCILE THE PROVISIONS OF THE EXECUTIVE ORDER WITH THE DIRECTIVE OF
THE CIVIL SERVICE COMMISSION QUOTED ABOVE. MOREOVER, THE UNION ITSELF,
ACTING THROUGH ITS LOCAL PRESIDENT, WAS IN LARGE PART AT FAULT IN THIS
MATTER IN THAT IT URGED RESPONDENT TO CURTAIL THE ACTIVITIES OF
SUPPORTERS OF A RIVAL ORGANIZATION, ALTHOUGH SUCH CURTAILMENT IS NOT
PERMISSIBLE UNDER THE EXECUTIVE ORDER, AS THE UNION, SPEAKING THROUGH
ITS COUNSEL, NOW ACKNOWLEDGES.
I RECOMMEND THAT THE COMMANDING OFFICER OF THE RESPONDENT POST AT THE
SHIPYARD AT ALL PLACES WHERE THE NOTICE OF FEBRUARY 18, WAS POSTED, AND
DISTRIBUTE TO ALL PERSONS TO WHOM THAT NOTICE AND THE MEMORANDA OF MARCH
16 AND 27 WERE DISTRIBUTED, THE FOLLOWING NOTICE:
1. ALL CIVILIAN EMPLOYEES OF THE SHIPYARD HAVE THE RIGHT TO ENGAGE
ON THE PREMISES OF THE SHIPYARD ON NONWORKING TIME IN ACTIVITIES ON
BEHALF OF THE FEDERAL EMPLOYEES METAL TRADES COUNCIL OR ANY OTHER LABOR
ORGANIZATION.
2. ALL CIVILIAN EMPLOYEES OF THE SHIPYARD HAVE THE RIGHT TO
DISTRIBUTE LITERATURE IN NONWORKING TIME IN NONWORKING AREAS OF THE
SHIPYARD ON BEHALF OF THE FEDERAL EMPLOYEES METAL TRADES COUNCIL OR ANY
OTHER LABOR ORGANIZATION.
3. THE FEDERAL EMPLOYEES METAL TRADES COUNCIL AS RECOGNIZED
EXCLUSIVE REPRESENTATIVE OF THE UNGRADED EMPLOYEES OF THE SHIPYARD
(EXCEPT SUPERVISORS, PATTERNMAKERS, PATTERNMAKER APPRENTICES, PLANNERS
AND ESTIMATORS, SHIP PROGRESSMEN AND SHIP SCHEDULERS) IS ENTITLED TO THE
PRIVILEGES NEGOTIATED IN ITS CURRENT AGREEMENT WITH THE SHIPYARD.
PURSUANT TO THAT AGREEMENT CHIEF STEWARDS AND STEWARDS MAY LEAVE THEIR
WORK AREA TO TRANSACT APPROPRIATE COUNCIL BUSINESS DURING WORK HOURS,
BUT MUST FIRST OBTAIN ORAL PERMISSION FROM THEIR SUPERVISOR. PERMISSION
WILL BE GRANTED UNLESS COMPELLING WORK COMMITMENTS DICTATE OTHERWISE.
4. ALL PREVIOUS NOTICES AND MEMORANDA INCONSISTENT HEREWITH ARE
HEREBY CANCELLED.
THE FOREGOING NOTICE SHOULD BE SIGNED BY THE COMMANDING OFFICER OF
THE NAVAL SHIPYARD AND SHOULD REMAIN POSTED FOR A PERIOD OF AT LEAST 60
DAYS. NOTHING IN THESE RECOMMENDATIONS IS INTENDED TO PRECLUDE
RESPONDENT FROM POSTING AGAIN, IF IT SO ADVISED, THE RESTRICTIONS ON
CHIEF STEWARDS AND STEWARDS WHICH IT PROMULGATED ON MARCH 16 AND 27,
PROVIDED THAT ITS PURPOSE IN SO DOING IS SOLELY TO FURTHER THE
PRODUCTIVE ACTIVITY OF THE NAVY YARD, AND IT IS NOT MOTIVATED IN ANY WAY
BY A DESIRE TO CONTROL LAWFUL ELECTIONEERING ACTIVITY.
COPIES OF THIS REPORT ARE BEING FORWARDED TO THE CIVIL SERVICE
COMMISSION AND TO THE DEPARTMENT OF DEFENSE AS WELL AS TO THE PARTIES
AND THEIR RESPECTIVE COUNSEL. I DIRECT THE ATTENTION OF ALL INTERESTED
COUNSEL AND OF THE PARTIES TO SECTION 203.22(C) THROUGH 203.26 OF THE
RULES AND REGULATIONS OF THE DEPARTMENT OF LABOR COVERING SUBSEQUENT
STEPS IN THIS PROCEEDING.
DATED AT WASHINGTON, D.C.
JULY 13, 1970
/1/ THE CAPTION OF THE PROCEEDING REFLECTS A CHANGE IN THE NAME OF
THE COMPLAINANT SINCE THE FILING OF THE COMPLAINTS HEREIN.
/2/ BY AGREEMENT OF THE PARTIES THE INSTANT CASE CONCERNS ONLY THE
RIGHTS OF EMPLOYEES, AND NOT THE RIGHTS OF OTHER UNION REPRESENTATIVES.
/3/ MOTORIST INSURANCE AGENCY, INC., 182 NLRB NO. 142; FURNAS
ELECTRIC CO., 183 NLRB NO.1.
/4/ THERE ARE EXCEPTIONS TO THESE RULES IN SPECIAL CIRCUMSTANCES, NOT
PRESENTED HERE.
2 REPORT NO. 52; P. 641; AUGUST 18, 1972.
REPORT NUMBER 52
PROBLEM
THE QUESTION WAS RAISED WHETHER A SHOWING OF INTEREST IN SUPPORT OF A
PETITION FOR AN ELECTION WAS VALID WHERE OBTAINED BY SOLICITATION OF A
SINGLE SIGNATURE TO A DUAL PURPOSE FORM WHICH BORE TWO UNRELATED
HEADINGS, (1) ACKNOWLEDGING RECEIPT OF A PUBLICATION AND (2) AUTHORIZING
A LABOR ORGANIZATION TO REPRESENT EMPLOYEES FOR PURPOSES OF EXCLUSIVE
REPRESENTATION.
DECISION
THE TECHNIQUE OF OBTAINING SIGNATURES ON DUAL PURPOSE DOCUMENTS
INHERENTLY IS CONFUSING AND THE RESULTANT SIGNATURES ARE, THEREFORE,
UNRELIABLE AND UNACCEPTABLE AS EVIDENCE OF INTEREST.
2 REPORT NO. 51; P. 640; AUGUST 17, 1972.
REPORT NUMBER 51
PROBLEM
THE QUESTION WAS PRESENTED WHETHER A CHALLENGE TO THE ELIGIBILITY OF
EMPLOYEES TO VOTE COULD BE RAISED AS AN OBJECTION TO THE ELECTION AFTER
THE CLOSE OF THE POLLS AND THE BALLOTS OF THE QUESTIONED EMPLOYEES HAD
BEEN CAST WITHOUT CHALLENGE BY ANY OBSERVER AND COMMINGLED WITH THE
BALLOTS OF OTHER VOTERS.
DECISION
A CHALLENGE TO THE ELIGIBILITY OF VOTERS MUST BE MADE PRIOR TO THE
CASTING OF THE BALLOTS AND NOT AFTER THE BALLOTS HAVE BEEN CAST WITHOUT
CHALLENGE AND THEIR IDENTITY LOST BY COMMINGLING WITH OTHER VALID
BALLOTS. AFTER THE BALLOT IS CAST UNCHALLENGED, THE PRIVILEGE OF
CHALLENGING IT IS LOST AND CANNOT BE REVIVED, REGARDLESS OF THE MERITS
OF AFTER THOUGHTS WHICH MAY OCCUR TO THE PARTIES. THE OBJECTION TO THE
ELECTION FILED IN THIS CASE WAS IN FACT A CHALLENGE TO ELIGIBILITY OF
VOTERS AND NOT AN OBJECTION TO THE ELECTION. THE PROPER DISTINCTION
BETWEEN "CHALLENGES" AND "OBJECTIONS" IS THAT OBJECTIONS RELATE TO THE
WORKING OF THE ELECTION MECHANISMS AND THE COUNTING OF BALLOTS
ACCURATELY AND FAIRLY WHILE CHALLENGES RELATE TO THE ELIGIBILITY OF
PROSPECTIVE VOTERS.
2 REPORT NO. 50; P. 640; FEBRUARY 29, 1972.
REPORT NUMBER 50
PROBLEM
SUBSEQUENT TO LOSING A RUNOFF REPRESENTATION ELECTION, THE PETITIONER
FILED OBJECTIONS TO CONDUCT ALLEGEDLY AFFECTING THE RESULT OF THE RUNOFF
ELECTION BASED ON AN EVENT OCCURRING PRIOR TO THE FIRST ELECTION. NO
OBJECTIONS HAD BEEN FILED TO THE FIRST ELECTION. THE QUESTION WAS
RAISED WHETHER AN OBJECTION BASED ON SUCH AN EVENT SHOULD BE CONSIDERED
IN EVALUATING OBJECTIONS FILED TO THE RUNOFF ELECTION.
DECISION
THE CRITICAL PERIOD PRECEDING A RUNOFF ELECTION DURING WHICH
OBJECTIONABLE CONDUCT OF ONE PARTY MAY BE USED AS GROUNDS FOR SETTING
ASIDE THE RUNOFF ELECTION BEGINS RUNNING FROM THE DATE OF THE FIRST
ELECTION. CONDUCT OCCURRING PRIOR TO THE FIRST ELECTION, AND NOT URGED
AS OBJECTIONS TO THAT ELECTION, MAY NOT BE CONSIDERED AS GROUNDS FOR
SETTING ASIDE THE RUNOFF ELECTION, EXCEPT IN UNUSUAL CIRCUMSTANCES.
2 REPORT NO. 49; P. 639; FEBRUARY 15, 1972.
REPORT NUMBER 49
PROBLEM
A REQUEST FOR REVIEW WAS FILED SEEKING REVERSAL OF THE ACTING
REGIONAL ADMINISTRATOR'S DISMISSAL OF A COMPLAINT ALLEGING VIOLATIONS OF
SECTION 19(A) OF THE EXECUTIVE ORDER STEMMING FROM AN ACTIVITY'S REFUSAL
TO ACCEPT A LABOR ORGANIZATION'S INTERPRETATION REGARDING THE NUMBER OF
STEWARDS THE ACTIVITY WAS REQUIRED TO RECOGNIZE UNDER AN EXISTING
COLLECTIVE BARGAINING AGREEMENT. THE EVIDENCE INDICATED A DISAGREEMENT
BETWEEN THE PARTIES OVER THE INTERPRETATION OF THE AGREEMENT AND THAT
THE AGREEMENT PROVIDES A GRIEVANCE AND ARBITRATION PROCEDURE FOR
RESOLVING SUCH DISPUTES.
DECISION
IT WAS CONCLUDED THAT WHERE A COMPLAINT ALLEGES AS AN UNFAIR LABOR
PRACTICE, A DISAGREEMENT OVER THE INTERPRETATION OF AN EXISTING
COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES A PROCEDURE FOR RESOLVING
THE DISAGREEMENT, THE ASSISTANT SECRETARY WILL NOT CONSIDER THE PROBLEM
IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE BUT WILL LEAVE THE PARTIES TO
THEIR REMEDIES UNDER THEIR COLLECTIVE BARGAINING AGREEMENT.
2 REPORT NO. 48; P. 639; JANUARY 20, 1972.
REPORT NUMBER 48
PROBLEM
COMPLAINANTS IN SOME CASES HAVE BEEN SUBMITTING TO THE AREA OFFICES
UNFAIR LABOR PRACTICE COMPLAINT FORMS INCOMPLETELY FILLED OUT. FOR
EXAMPLE, ITEM NO. 2 OF THE FORM, "BASIS OF THE COMPLAINT", HAS BEEN LEFT
BLANK EXCEPT FOR SUCH PHRASES AS "SEE ATTACHED CORRESPONDENCE". ON
OCCASION NECESSARY ITEMS OF INFORMATION, SUCH AS THE DATES AND PLACES OF
THE PARTICULAR ACTS COMPLAINED OF, HAVE NOT BEEN SUPPLIED. IN ONE CASE,
A COMPLAINT WAS SUBMITTED WITHOUT THE SIGNATURE REQUIRED UNDER PART 203
OF THE REGULATIONS. THE QUESTION WAS RAISED WHETHER SUCH COMPLAINTS ARE
VALID AND WHETHER THEY SHOULD BE DOCKETED WHEN RECEIVED BY THE AREA
OFFICES. A RELATED QUESTION IS WHETHER THE DATE OF RECEIPT OF SUCH
DEFICIENT COMPLAINTS SHOULD BE CONSIDERED TO BE THE FILING DATE WHEN
COMPUTING THE TIMELINESS REQUIREMENTS UNDER PART 203 OF THE REGULATIONS.
DECISION
THE COMPLAINT FORM ITSELF MUST SET FORTH THE PARTICULAR ACTS
COMPLAINED OF ALONG WITH ATTENDANT DETAILS. THEREFORE, USE OF PHRASES
SUCH AS "SEE ATTACHED CORRESPONDENCE", RENDERS AN OTHERWISE ADEQUATE
COMPLAINT INVALID. FURTHER, A COMPLAINT WHICH LACKS A SIGNATURE IN ITEM
NO. 7 OF THE FORM IS UNACCEPTABLE. FORMS CONTAINING SUCH DEFICIENCIES
SHOULD NOT BE ACCEPTED OR DOCKETED BY THE AREA OFFICES. IN THIS
CONNECTION, THE DATE TO BE USED IN COMPUTING TIMELINESS REQUIREMENTS IS
THAT DATE WHEN A VALID, PROPERLY FILLED OUT COMPLAINT FORM IS RECEIVED
BY THE AREA OFFICE.
2 REPORT NO. 47; P. 638; JANUARY 20, 1972.
REPORT NUMBER 47
PROBLEM
A COMPLAINANT IN AN UNFAIR LABOR PRACTICE CASE REFUSED TO COOPERATE
IN FURNISHING INFORMATION REQUIRED BY THE REGULATIONS AND NECESSARY IN
ORDER FOR THE AREA AND REGIONAL ADMINISTRATORS TO DETERMINE SUCH ITEMS
AS TIMELINESS OF CHARGES AND FILING OF COMPLAINT. THE QUESTION WAS
RAISED WHETHER OR NOT SUCH A CASE SHOULD CONTINUE TO BE PROCESSED AND A
DECISION ON ITS MERITS BE MADE.
DECISION
IN BROCKTON, MASSACHUSETTS VETERANS ADMINISTRATION HOSPITAL, A/SLMR
NO. 21, THE ASSISTANT SECRETARY ENUNCIATED THE POLICY THAT IT WOULD BEST
EFFECTUATE THE PURPOSES OF THE EXECUTIVE ORDER AND WOULD PROMOTE THE
PROMPT HANDLING OF CASES TO DISMISS WHERE A PETITIONER REFUSES TO
COOPERATE IN THE PROCESSING OF HIS PETITION. THIS POLICY APPLIES
EQUALLY WELL TO A SIMILAR LACK OF COOPERATION BY A COMPLAINANT IN AN
UNFAIR LABOR PRACTICE CASE.
THEREFORE, FAILURE OF A COMPLAINANT TO COOPERATE DURING THE
INVESTIGATION OF AN UNFAIR LABOR PRACTICE CASE MAY SUBJECT ITS COMPLAINT
TO DISMISSAL.
2 REPORT NO. 46; P. 638; JANUARY 20, 1972.
REPORT NUMBER 46
A COMPLAINANT IN AN UNFAIR LABOR PRACTICE CASE FAILED TO FURNISH
REQUESTED INFORMATION REQUIRED BY THE REGULATIONS (E.G., TIME AND PLACE
OF OCCURRENCE OF ALLEGED ACTS) PRIOR TO THE ISSUANCE OF THE REGIONAL
ADMINISTRATOR'S DISMISSAL OF ITS COMPLAINT. THE REQUEST FOR REVIEW
INTRODUCED THE NECESSARY INFORMATION FOR THE FIRST TIME. THE QUESTION
WAS RAISED WHETHER OR NOT SUCH INFORMATION SHOULD BE CONSIDERED BY THE
ASSISTANT SECRETARY.
DECISION
CONSISTENT WITH REPORT ON RULING NO. 22, AND CHARLESTON, SOUTH
CAROLINA VETERANS ADMINISTRATION HOSPITAL, A/SLMR NO. 87, EVIDENCE OR
INFORMATION REQUIRED BY THE REGULATIONS THAT IS FURNISHED FOR THE FIRST
TIME IN A REQUEST FOR REVIEW, WHERE A COMPLAINANT HAS HAD ADEQUATE
OPPORTUNITY TO FURNISH IT DURING THE INVESTIGATION PERIOD (PROVIDED FOR
IN SECTION 203.5 OF THE REGULATIONS) AND PRIOR TO THE ISSUANCE OF THE
REGIONAL ADMINISTRATOR'S DECISION, SHALL NOT BE CONSIDERED BY THE
ASSISTANT SECRETARY.
2 REPORT NO. 45; P. 637; JANUARY 20, 1972.
REPORT NUMBER 45
PROBLEM
THE QUESTION WAS RAISED AS TO WHETHER A REGIONAL ADMINISTRATOR
CORRECTLY DECIDED THAT A PETITIONER HAD NOT COMPLIED WITH THE SERVICE
REQUIREMENTS OF SECTION 202.2(E)(3) WHEN IT FAILED TO MAKE SIMULTANEOUS
SERVICE OF A COPY OF ITS PETITION ON THE UNION REPRESENTING EMPLOYEES
COVERED BY THE PETITION. BOTH THE AREA ADMINISTRATOR AND THE ACTIVITY
WERE SERVED SIMULTANEOUSLY WITH COPIES OF THE PETITION, BUT THE
EXCLUSIVE REPRESENTATIVE WAS NOT SERVED UNTIL A WEEK LATER.
DECISION
SINCE SERVICE OF A COPY OF THE PETITION ON AN INTERESTED PARTY ONE
WEEK AFTER TIMELY SERVICE UPON THE AREA ADMINISTRATOR AND THE ACTIVITY
WAS NOT IN COMPLIANCE WITH THE SIMULTANEOUS SERVICE REQUIREMENTS OF
SECTION 202.2(E)(3), THE REQUEST TO REVERSE THE REGIONAL ADMINISTRATOR'S
DISMISSAL OF THE PETITION FOR ELECTION WAS DENIED.
2 REPORT NO. 44; P. 637; JANUARY 17, 1972.
REPORT NUMBER 44
PROBLEM
THE QUESTION WAS RAISED AS TO WHETHER A UNIT CONSISTING OF A SINGLE
EMPLOYEE WAS APPROPRIATE FOR PURPOSES OF COLLECTIVE BARGAINING WITHIN
THE MEANING OF EXECUTIVE ORDER 11491, AS AMENDED.
RULING
ALL REFERENCES TO UNITS IN THE ORDER AND THE IMPLEMENTING REGULATIONS
ISSUED BY THE ASSISTANT SECRETARY REFER TO "EMPLOYEES". IT WAS DECIDED
THAT UNITS OF MORE THAN ONE EMPLOYEE WERE CONTEMPLATED BY THE ORDER AND
CONSEQUENTLY THAT A SINGLE EMPLOYEE UNIT IS NOT APPROPRIATE FOR PURPOSES
OF COLLECTIVE BARGAINING.
2 A/SLMR 234; P. 629; CASE NOS. 42-1620(RA), 42-1648(RO),
42-1724(RA), 42-1759(RO); DECEMBER 18, 1972.
FEDERAL AVIATION ADMINISTRATION, SOUTHERN
REGION, MIAMI AIR ROUTE TRAFFIC CONTROL CENTER
AND MIAMI AIRPORT TRAFFIC CONTROL TOWER
A/SLMR NO. 234
THE SUBJECT CASES INVOLVE PETITIONS FILED BY THE PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH MARINE ENGINEERS
BENEFICIAL ASSOCIATION, AFL-CIO (PATCO), AND THE ACTIVITIES SEEKING
ELECTIONS IN TWO UNITS OF EMPLOYEES CURRENTLY REPRESENTED BY THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE). THE NAGE
INTERVENED IN THE CASES WHICH INVOLVE AIR TRAFFIC CONTROL SPECIALISTS
EMPLOYED AT THE MIAMI AIRPORT TRAFFIC CONTROL TOWER AND CONTROLLERS AND
TELETYPE OPERATORS EMPLOYED AT THE MIAMI AIR ROUTE TRAFFIC CONTROL
CENTER. THE PARTIES ENTERED INTO STIPULATIONS SETTING FORTH ALL OF THE
MATERIAL FACTS AND THE CASES WERE TRANSFERRED BY THE REGIONAL
ADMINISTRATOR TO THE ASSISTANT SECRETARY FOR DECISION.
THREE ISSUES WERE PRESENTED FOR DECISION: (1) WHETHER THE PETITIONS
WERE FILED TIMELY WITHIN THE MEANING OF SECTION 202.3(F) OF THE
ASSISTANT SECRETARY'S REGULATIONS; (2) WHETHER THE PATCO'S PETITIONS,
WHICH SOUGHT FACILITY-WIDE UNITS, SHOULD BE DISMISSED AS BEING AN ABUSE
OF THE ADMINISTRATIVE PROCESS IN VIEW OF THE FACT THAT THEY WERE FILED
AT A TIME WHEN A PETITION FOR A NATIONWIDE UNIT, WHICH INCLUDED THE
CONTROLLERS CLAIMED IN THE INSTANT PETITIONS, WAS PENDING; AND (3)
WHETHER THE CONTROLLERS AT THE MIAMI AIR ROUTE TRAFFIC CONTROL CENTER
SHOULD BE SEVERED FROM THE EXISTING UNIT OF CONTROLLERS AND TELETYPE
OPERATORS.
THE ASSISTANT SECRETARY DETERMINED, IN ACCORD WITH HIS DECISION IN
FEDERAL AVIATION ADMINISTRATION, RICHMOND AIR TRAFFIC CONTROL TOWER
(BYRD TOWER); ROANOKE AIR TRAFFIC CONTROL TOWER; AND WASHINGTON AIR
ROUTE TRAFFIC CONTROL CENTER, A/SLMR NO.232, THAT SECTION 202.3(F) OF
THE REGULATIONS WAS INAPPLICABLE TO THE SUBJECT PETITIONS AS SUCH
PETITIONS WERE FILED PRIOR TO THE CLOSE OF THE HEARING ON THE NATIONWIDE
PETITION. ACCORDINGLY, HE FOUND THAT THE INSTANT PETITIONS WERE TIMELY
FILED.
AS TO THE SECOND ISSUE, THE ASSISTANT SECRETARY FOUND IN ACCORD WITH
HIS DECISION IN FEDERAL AVIATION ADMINISTRATION, JACKSONVILLE AIR ROUTE
TRAFFIC CONTROL CENTER, A/SLMR NO. 231, THAT THE PATCO'S PETITIONS
HEREIN DID NOT CONSTITUTE AN ABUSE OF THE ADMINISTRATIVE PROCESS UNDER
THE ORDER. HE NOTED THAT THE PATCO, BY FILING ITS PETITIONS IN THE
SUBJECT CASES, AND ALSO ATTEMPTING AT THE SAME TIME TO INCLUDE SUCH
UNITS IN THE NATIONWIDE UNIT, WAS PROTECTING ITS INTEREST IN THE SUBJECT
CASES IN THE EVENT ITS NATIONWIDE PETITION WAS FOUND NOT TO INCLUDE SUCH
UNITS. ACCORDINGLY, THE ASSISTANT SECRETARY DETERMINED THAT THE PATCO'S
PETITIONS WERE VALID.
REGARDING THE THIRD ISSUE, THE ASSISTANT SECRETARY DETERMINED THAT
THE POLICY SET FORTH IN UNITED STATES NAVAL CONSTRUCTION BATTALION
CENTER, A/SLMR NO. 8, WAS CONTROLLING. IN THAT DECISION THE ASSISTANT
SECRETARY FOUND THAT WHERE THERE WAS IN EXISTENCE AN ESTABLISHED,
EFFECTIVE AND FAIR COLLECTIVE BARGAINING RELATIONSHIP, A SEPARATE UNIT
CARVED OUT OF AN EXISTING UNIT WOULD NOT BE FOUND TO BE APPROPRIATE,
EXCEPT IN UNUSUAL CIRCUMSTANCES. THE ASSISTANT SECRETARY FOUND THAT THE
EVIDENCE ESTABLISHED THAT THE EXISTING UNIT OF CONTROLLERS AND TELETYPE
OPERATORS HAD AN ESTABLISHED HISTORY OF FAIR AND EFFECTIVE
COLLECTIVE-BARGAINING AND THAT THERE WAS NO EVIDENCE THAT EITHER THE
TELETYPE OPERATORS OR THE CONTROLLERS IN THE UNIT HAD BEEN REPRESENTED
IN OTHER THAN A FAIR AND EFFECTIVE MANNER. THE ASSISTANT SECRETARY
FOUND FURTHER THAT THE ACTIVITIES' CONTENTIONS-- THAT IF THE EXISTING
UNIT REMAINS INTACT AND THE PATCO SHOULD BECOME THE BARGAINING AGENT,
SUCH UNIT COULD BECOME A DISRUPTIVE ELEMENT IN THE BARGAINING
RELATIONSHIP BETWEEN THEM AND THE PATCO AND THAT THE INTERESTS OF THE
TELETYPE OPERATORS MIGHT SUFFER SINCE SUBSTANTIALLY ALL OF THE OTHER
EMPLOYEES REPRESENTED BY THE PATCO ARE CONTROLLERS-- WERE ENTIRELY
SPECULATIVE AND, THEREFORE, WITHOUT MERIT. IN REACHING THIS CONCLUSION,
THE ASSISTANT SECRETARY NOTED THAT THE PATCO HAD EXPRESSED A WILLINGNESS
TO REPRESENT THE EMPLOYEES IN ANY UNIT DEEMED APPROPRIATE BY THE
ASSISTANT SECRETARY. ACCORDINGLY, THE ASSISTANT SECRETARY CONCLUDED
THAT SEVERANCE OF THE CONTROLLERS FROM THE EXISTING UNIT WAS UNWARRANTED
AND DIRECTED AN ELECTION IN THE ESTABLISHED UNIT WHICH INCLUDED TELETYPE
OPERATORS AND CONTROLLERS.
FINALLY, NOTING THE AGREEMENT OF THE PARTIES AS TO THE
APPROPRIATENESS OF THE UNIT SOUGHT AT THE MIAMI AIRPORT TRAFFIC CONTROL
TOWER, THE ASSISTANT SECRETARY FOUND THE UNIT APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER AND DIRECTED AN
ELECTION IN SUCH UNIT. ALSO, BASED ON THE FOREGOING, HE DIRECTED AN
ELECTION IN A UNIT OF NONSUPERVISORY TELETYPISTS AND AIR TRAFFIC CONTROL
SPECIALISTS AT THE AIR ROUTE TRAFFIC CONTROL CENTER, MIAMI, FLORIDA.
FEDERAL AVIATION ADMINISTRATION, SOUTHERN
REGION, MIAMI AIR ROUTE TRAFFIC CONTROL CENTER
AND
LOCAL R5-7, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
FEDERAL AVIATION ADMINISTRATION,
MIAMI AIR ROUTE TRAFFIC CONTROL CENTER
AND
MIAMI CENTER CHAPTER, PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, AFFILIATED WITH MARINE
ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO
AND
LOCAL R5-7, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
FEDERAL AVIATION ADMINISTRATION, SOUTHERN
REGION, MIAMI AIRPORT TRAFFIC CONTROL TOWER
AND
LOCAL R5-55, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
FEDERAL AVIATION ADMINISTRATION, SOUTHERN
REGION, MIAMI AIRPORT TRAFFIC CONTROL TOWER
AND
MIAMI TOWER CHAPTER, PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, AFFILIATED WITH MARINE
ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO
AND
LOCAL R5-55, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO REGIONAL
ADMINISTRATOR J. Y. CHENNAULT'S CONSOLIDATED ORDER TRANSFERRING CASES TO
THE ASSISTANT SECRETARY OF LABOR PURSUANT TO SECTION 205.5(A) AND
205.5(B) OF THE ASSISTANT SECRETARY'S REGULATIONS.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING THE PARTIES'
STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS FILED BY THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH
MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, HEREIN CALLED PATCO,
AND THE ACTIVITIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITIES.
2. PATCO FILED TWO SEPARATE PETITIONS IN CASES NOS. 42-1648(RO) AND
42-1759(RO) SEEKING ELECTIONS IN TWO UNITS WHICH ARE CURRENTLY
REPRESENTED BY LOCALS OF THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, HEREIN CALLED NAGE, AND WHICH ARE LOCATED AT THE MIAMI AIR
ROUTE TRAFFIC CONTROL CENTER (CASE NO. 42-1648(RO)) AND THE MIAMI
AIRPORT TRAFFIC CONTROL TOWER (CASE NO. 42-1759(RO). ALSO, THE
ACTIVITIES FILED PETITIONS IN THE SAME UNITS (CASE NO. 42-1724(RA) IN
THE MIAMI AIRPORT TRAFFIC CONTROL TOWER UNIT, AND CASE NO.42-1620(RA) IN
THE MIAMI AIR ROUTE TRAFFIC CONTROL CENTER) QUESTIONING THE MAJORITY
STATUS OF THE NAGE IN SUCH UNITS. THE PARTIES STIPULATED THAT THE
APPROPRIATE UNIT FOR EXCLUSIVE RECOGNITION IN CASES NOS. 42-1724(RA)
AND 42-1759(RO) CONSISTS OF ALL NONSUPERVISORY AIR TRAFFIC CONTROL
SPECIALISTS, GS-2152 SERIES, INCLUDING FLOW CONTROLLERS, AREA
SPECIALISTS, PLANNING AND PROCEDURES SPECIALISTS AND MILITARY LIAISON
AND SECURITY SPECIALISTS EMPLOYED AT THE MIAMI AIR TRAFFIC CONTROL
TOWER, EXCLUDING TELETYPE OPERATORS, CLERICALS, ELECTRONIC TECHNICIANS,
EVALUATION AND PROFICIENCY DEVELOPMENT SPECIALISTS, FLIGHT DATA AIDES,
CARTOGRAPHERS, EVALUATION AND PROFICIENCY DEVELOPMENT OFFICERS, FACILITY
CHIEFS, DEPUTY CHIEFS, ASSISTANT CHIEFS, TEAM SUPERVISORS, AREA
OFFICERS, MILITARY LIAISON AND SECURITY OFFICERS, DATA SYSTEM OFFICERS,
ASSISTANT DATA SYSTEM OFFICERS, OPERATIONS OFFICERS, PLANNING OFFICERS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, OTHER MANAGEMENT OFFICIALS AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER. /1/
IN CASE NO. 42-1648(RO) THE PATCO SEEKS A UNIT CONSISTING OF ALL
NONSUPERVISORY CONTROLLERS, REGARDLESS OF GRADE, INCLUDING DATA SYSTEM
SPECIALISTS, EMPLOYED AT THE MIAMI AIR ROUTE TRAFFIC CONTROL CENTER,
EXCLUDING EVALUATION, PROFICIENCY AND DEVELOPMENT SPECIALISTS, FLOW
CONTROLLERS, TELETYPISTS, MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
GUARDS AND SUPERVISORS AS DEFINED IN THE ORDER. THE UNIT IN WHICH THE
ACTIVITY QUESTIONED THE MAJORITY STATUS OF THE NAGE IN CASE
NO.42-1620(RA) WAS COEXTENSIVE WITH THE EXISTING BARGAINING UNIT AT THE
MIAMI AIR ROUTE TRAFFIC CONTROL CENTER WHICH INCLUDED TELETYPE OPERATORS
AS WELL AS CONTROLLERS. HOWEVER, IN ITS BRIEF, THE ACTIVITY CONTENDED
THAT THE CONTROLLERS SHOULD BE SEVERED FROM THE EXISTING UNIT BECAUSE
THE CONTROLLERS AND TELETYPE OPERATORS CONSTITUTE SEPARATE APPROPRIATE
UNITS AND SEVERANCE WILL PROMOTE STABILITY IN LABOR RELATIONS, AS WELL
AS EFFECTIVE DEALINGS AND EFFICIENCY IN AGENCY OPERATIONS. IN ITS
BRIEF, THE PATCO TOOK NO POSITION ON THE SEVERANCE ISSUE BUT EXPRESSED A
WILLINGNESS TO REPRESENT THE EMPLOYEES IN ANY UNIT FOUND APPROPRIATE BY
THE ASSISTANT SECRETARY.
IN ADDITION TO THE ISSUE RAISED AS TO THE APPROPRIATENESS OF THE UNIT
IN CASES NOS. 42-1468(RO) AND 42-1620(RA), THE SUBJECT CASES PRESENT TWO
OTHER ISSUES FOR DECISION: (1) WHETHER THE INSTANT PETITIONS ARE TIMELY
WITHIN THE MEANING OF SECTION 202.3(F) OF THE ASSISTANT SECRETARY'S
REGULATIONS; /2/ AND (2) WHETHER THE PATCO'S PETITIONS HEREIN ARE
INCONSISTENT WITH ITS PRIOR PETITION FOR A NATIONWIDE UNIT FILED ON JUNE
7, 1971, AND, THEREFORE, INVALID.
THE RECORD REVEALS /3/ THAT ON JUNE 7, 1971, THE PATCO FILED A
PETITION FOR A NATIONWIDE UNIT OF AIR TRAFFIC CONTROL SPECIALISTS,
GS-2152 SERIES, WHICH INCLUDED THE CONTROLLERS SOUGHT BY THE PATCO
HEREIN. AT THE TIME THE NATIONWIDE PETITION WAS FILED, THE UNITS
CLAIMED IN THE INSTANT PROCEEDING WERE COVERED BY VALID NEGOTIATED
AGREEMENTS BETWEEN THE ACTIVITY AND THE NAGE. DURING THE HEARING ON THE
NATIONWIDE PETITION, THE NAGE, WHICH PARTICIPATED AS AN INTERVENOR,
CONTENDED THAT THE NEGOTIATED AGREEMENTS WHICH COVERED THE INSTANT UNITS
CONSTITUTED BARS TO THEIR INCLUSION IN THE NATIONWIDE UNIT SOUGHT BY THE
PATCO. THE HEARING CLOSED ON FEBRUARY 10, 1972. PRIOR TO THE CLOSE OF
THE HEARING THE PATCO AND THE ACTIVITIES FILED THE INSTANT PETITIONS.
EACH PETITION WAS FILED DURING THE 60 TO 90 DAY PERIOD PRIOR TO THE
EXPIRATION OF THE NEGOTIATED AGREEMENTS WHICH COVERED THE CLAIMED UNITS.
SUBSEQUENTLY, IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 173, WHICH WAS ISSUED ON JULY 20, 1972, I
FOUND THAT THE NATIONWIDE UNIT SOUGHT BY THE PATCO WAS APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER. I FOUND ALSO THAT
THE NEGOTIATED AGREEMENTS WHICH COVERED THE UNITS CLAIMED HEREIN
CONSTITUTED BARS TO AN ELECTION IN SUCH UNITS AND, CONSEQUENTLY, THE
CONTROLLERS IN SUCH UNITS WERE EXCLUDED FROM THE NATIONWIDE UNIT FOUND
APPROPRIATE.
AS TO THE FIRST ISSUE RAISED BY THE STIPULATED RECORD HEREIN, THE
EVIDENCE ESTABLISHES THAT THE PETITIONS FILED IN THE SUBJECT CASES WERE
FILED PRIOR TO THE CLOSE OF THE HEARING ON THE PATCO'S PETITION FOR A
NATIONWIDE UNIT. ACCORDINGLY, FOR THE REASONS ENUNCIATED IN FEDERAL
AVIATION ADMINISTRATION, RICHMOND AIR TRAFFIC CONTROL TOWER (BYRD
TOWER); ROANOKE AIR TRAFFIC CONTROL TOWER; AND WASHINGTON AIR ROUTE
TRAFFIC CONTROL CENTER, A/SLMR NO. 232, I FIND THAT SECTION 202.3(F) OF
THE ASSISTANT SECRETARY'S REGULATIONS IS INAPPLICABLE TO THE PETITIONS
IN THIS PROCEEDING. ACCORDINGLY, I FIND THAT THE SUBJECT PETITIONS WERE
FILED TIMELY.
THE SECOND ISSUE RAISED THE QUESTION AS TO WHETHER THE PATCO, IN
FILING ITS PETITION FOR A NATIONWIDE UNIT AND, SUBSEQUENTLY, FILING THE
LOCAL PETITIONS HEREIN FOR FACILITY-WIDE UNITS WAS, IN EFFECT, TAKING
INCONSISTENT POSITIONS WHICH WOULD CONSTITUTE AN ABUSE OF THE
ADMINISTRATIVE PROCESS UNDER THE EXECUTIVE ORDER WARRANTING THE
DISMISSAL OF THE SUBJECT PETITIONS. THE RECORD ESTABLISHES THAT WHILE
THE PATCO ATTEMPTED TO INCLUDE THE UNITS CLAIMED HEREIN IN A NATIONWIDE
UNIT, SUCH UNITS ALREADY WERE COVERED BY VALID NEGOTIATED AGREEMENTS
WHICH THE NAGE SUCCESSFULLY ASSERTED CONSTITUTED BARS TO THEIR INCLUSION
IN THE NATIONWIDE UNIT. BASED UPON THE REASONS SET FORTH IN FEDERAL
AVIATION ADMINISTRATION, JACKSONVILLE AIR ROUTE TRAFFIC CONTROL CENTER,
A/SLMR NO. 231, I FIND THAT THE PATCO ACTED REASONABLY AND DID NOT ABUSE
THE ADMINISTRATIVE PROCESS BY FILING THE PETITION IN THE SUBJECT CASES.
ACCORDINGLY, I FIND THAT THE PATCO'S PETITIONS IN THE SUBJECT CASES ARE
NOT BARRED BY VIRTUE OF THE FACT THAT THE CLAIMED EMPLOYEES WERE COVERED
BY THE PATCO'S PRIOR PETITION FOR A NATIONWIDE UNIT.
WITH RESPECT TO THE SEVERANCE ISSUE, THE EVIDENCE REVEALS THAT THE
ACTIVITY ACCORDED THE NAGE RECOGNITION AS EXCLUSIVE BARGAINING
REPRESENTATIVE OF THE CONTROLLERS AND TELETYPE OPERATORS EMPLOYED AT THE
MIAMI AIR ROUTE TRAFFIC CONTROL CENTER ON JANUARY 6, 1965. THE NAGE AND
THE ACTIVITY EXECUTED THE ONLY NEGOTIATED AGREEMENT COVERING THE UNIT ON
AUGUST 6, 1969. THE PARTIES STIPULATED THAT THERE WAS NO EVIDENCE THAT
THE NAGE HAD FAILED TO REPRESENT EITHER THE CONTROLLERS OR THE TELETYPE
OPERATORS IN A FAIR AND EFFECTIVE MANNER. THE PARTIES ALSO STIPULATED
THAT THE DUTIES AND RESPONSIBILITIES OF THE TELETYPE OPERATORS AND
CONTROLLERS AT THE MIAMI CENTER ARE THE SAME AS THE DUTIES AND
RESPONSIBILITIES OF THE CONTROLLERS AND TELETYPE OPERATORS IN FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, CITED ABOVE.
IN UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, I
FOUND THAT WHERE THE EVIDENCE SHOWS THE EXISTENCE OF AN ESTABLISHED,
EFFECTIVE BARGAINING RELATIONSHIP, SEVERANCE FROM AN ESTABLISHED UNIT
WILL NOT BE GRANTED, ABSENT UNUSUAL CIRCUMSTANCES. THE ACTIVITY
CONTENDS THAT THE SUBJECT CASE PRESENTS UNUSUAL CIRCUMSTANCES WHICH
WARRANT SEVERANCE OF THE CONTROLLERS FROM THE EXISTING UNIT. IT ARGUES
IN THIS REGARD THAT BECAUSE THE COLLECTIVE BARGAINING RELATIONSHIP
BETWEEN IT AND THE PATCO CURRENTLY INVOLVES ONLY UNITS RESTRICTED TO
CONTROLLERS AND THE PATCO DOES NOT SEEK AFFIRMATIVELY TO REPRESENT
TELETYPE OPERATORS, THE INCLUSION OF TELETYPE OPERATORS IN THE UNIT
HEREIN WOULD CONSTITUTE AN UNWARRANTED AND BURDENSOME INTRUSION IN THE
RELATIONSHIP BETWEEN IT AND THE PATCO. IT ARGUES ALSO THAT IF THE
TELETYPE OPERATORS ARE PERMITTED TO REMAIN IN THE UNIT, AND IF THE PATCO
SHOULD BECOME THE EXCLUSIVE BARGAINING REPRESENTATIVE, THE INTERESTS OF
THE TELETYPE OPERATORS MAY SUFFER BECAUSE PRACTICALLY ALL OF THE OTHER
EMPLOYEES REPRESENTED BY THE PATCO ARE CONTROLLERS.
IN MY VIEW, THE APPREHENSIONS RAISED BY THE ACTIVITY ARE TOTALLY
SPECULATIVE. THUS, THE PATCO HAS EXPRESSED A WILLINGNESS TO REPRESENT
THE EMPLOYEES IN WHATEVER UNIT IS DEEMED APPROPRIATE, AND THERE IS NO
EVIDENCE THAT IT WILL NOT REPRESENT ALL EMPLOYEES IN SUCH UNIT IN A FAIR
AND EFFECTIVE MANNER. MOREOVER, THESE EMPLOYEES HAVE HISTORICALLY BEEN
INCLUDED IN THE SAME UNIT AND THERE IS NO RECORD EVIDENCE THAT SUCH UNIT
HAS FAILED TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. ACCORDINGLY, AND AS THE RECORD HEREIN DOES NOT, IN MY VIEW,
ESTABLISH ANY UNUSUAL CIRCUMSTANCES JUSTIFYING THE SEVERANCE OF
CONTROLLERS FROM THE EXISTING UNIT, I FIND THAT THE APPROPRIATE UNIT
INCLUDES BOTH THE CONTROLLERS AND TELETYPE OPERATORS, AND I SHALL DIRECT
AN ELECTION IN SUCH UNIT. /4/
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE FOLLOWING
EMPLOYEES AT THE MIAMI AIR ROUTE TRAFFIC CONTROL CENTER CONSTITUTE AN
APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND THAT SUCH
UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS:
ALL NONSUPERVISORY TELETYPISTS AND AIR TRAFFIC CONTROL SPECIALISTS
ASSIGNED TO THE AIR
ROUTE TRAFFIC CONTROL CENTER, MIAMI, FLORIDA, EXCLUDING FACILITY
OFFICERS, SUPERVISORY AIR TRAFFIC CONTROL SPECIALISTS (WATCH
SUPERVISORS), SUPERVISORY AIR TRAFFIC CONTROL SPECIALISTS (CREW
CHIEFS), SUPERVISORY AIR
TRAFFIC CONTROL SPECIALISTS (FLIGHT DATA SUPERVISORS), TELETYPIST
SUPERVISORS, FLIGHT DATA
AIDES, OFFICE ADMINISTRATIVE AND CLERICAL PERSONNEL, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS,
AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER. /5/
FURTHER, UNDER ALL THE CIRCUMSTANCES AND NOTING THE AGREEMENT OF THE
PARTIES WITH RESPECT TO THE APPROPRIATENESS OF THE UNIT SOUGHT, I FIND
THAT THE FOLLOWING UNIT IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION AND WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS:
ALL NONSUPERVISORY AIR TRAFFIC CONTROL SPECIALISTS, GS-2152 SERIES,
INCLUDING FLOW
CONTROLLERS, AREA SPECIALISTS, PLANNING AND PROCEDURES SPECIALISTS,
MILITARY LIAISON AND
SECURITY SPECIALISTS EMPLOYED AT THE MIAMI AIRPORT TRAFFIC CONTROL
TOWER, EXCLUDING TELETYPE
OPERATORS, CLERICALS, ELECTRONIC TECHNICIANS, EVALUATION AND
PROFICIENCY DEVELOPMENT
SPECIALISTS, FLIGHT DATA AIDES, CARTOGRAPHERS, EVALUATION AND
PROFICIENCY DEVELOPMENT
OFFICERS, FACILITY CHIEFS, DEPUTY CHIEFS, ASSISTANT CHIEFS, TEAM
SUPERVISORS, AREA OFFICERS,
MILITARY SECURITY AND LIAISON OFFICERS, DATA SYSTEM OFFICERS,
ASSISTANT DATA SYSTEM OFFICERS,
OPERATIONS OFFICERS, PLANNING OFFICERS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, OTHER MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN EACH
OF THE UNITS FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTIONS SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNITS WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING THE EMPLOYEES WHO DID NOT WORK DURING THE PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE.
ELIGIBLE EMPLOYEES AT THE MIAMI AIR ROUTE TRAFFIC CONTROL CENTER
SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION BY THE MIAMI CENTER CHAPTER, PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH MARINE ENGINEERS
BENEFICIAL ASSOCIATION, AFL-CIO; LOCAL R5-7, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, OR NEITHER.
ELIGIBLE EMPLOYEES AT THE MIAMI AIRPORT TRAFFIC CONTROL TOWER SHALL
VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY THE MIAMI TOWER CHAPTER, PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, AFFILIATED WITH MARINE ENGINEERS BENEFICIAL
ASSOCIATION, AFL-CIO; LOCAL R5-55, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES; OR NEITHER.
DATED, WASHINGTON D.C.
DECEMBER 18, 1972
/1/ THE STIPULATED INCLUSIONS AND EXCLUSIONS ARE ESSENTIALLY THE SAME
AS THOSE INCLUDED IN AND EXCLUDED FROM THE UNIT FOUND APPROPRIATE IN
FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, A/SLMR
NO. 173.
/2/ SECTION 202.3(F) PROVIDES: "A PETITION FOR EXCLUSIVE RECOGNITION
OR OTHER PETITION FOR AN ELECTION WILL NOT BE CONSIDERED TIMELY IF FILED
WITHIN A TWELVE (12) MONTH PERIOD FOLLOWING THE CLOSE OF A HEARING
CONDUCTED PURSUANT TO SECTION 209.9 CONCERNING THE UNIT OR ANY
SUBDIVISION THEREOF."
/3/ ALL OF THE FACTS PRESENTED ARE DERIVED FROM THE PARTIES'
STIPULATION AND ACCOMPANYING EXHIBITS.
/4/ CF. FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 122, AT FOOTNOTE 9.
/5/ THE ABOVE UNIT IS AS DESCRIBED IN THE PARTIES' NEGOTIATED
AGREEMENT WITH THE ADDITION OF THE STANDARD EXCLUSIONS SET FORTH IN
SECTION 10(B) OF THE EXECUTIVE ORDER.
2 A/SLMR 233; P. 626; CASE NO. 51-2243; DECEMBER 18, 1972.
FEDERAL AVIATION ADMINISTRATION,
MINNEAPOLIS AIR ROUTE TRAFFIC CONTROL CENTER,
FARMINGTON, MINNESOTA
A/SLMR NO. 233
THE SUBJECT CASE INVOLVES A REPRESENTATION PETITION FILED BY THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH
MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO (PATCO) SEEKING AN
ELECTION IN A UNIT OF THE ACTIVITY'S AIR TRAFFIC CONTROL SPECIALISTS
(CONTROLLERS) CURRENTLY REPRESENTED BY LOCAL R9-2, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES (NAGE) WHICH INTERVENED IN THE CASE. THE
PARTIES ENTERED INTO A STIPULATION SETTING FORTH ALL MATERIAL FACTS AND
THE CASE WAS TRANSFERRED BY THE REGIONAL ADMINISTRATOR TO THE ASSISTANT
SECRETARY FOR DECISION.
TWO ISSUES WERE PRESENTED FOR DECISION: (1) WHETHER THE PETITION WAS
TIMELY FILED WITHIN THE MEANING OF SECTION 202.3(F) OF THE ASSISTANT
SECRETARY'S REGULATIONS IN VIEW OF THE FACT THAT IT WAS FILED DURING THE
TWELVE (12) MONTH PERIOD FOLLOWING THE CLOSE OF THE HEARING ON A
PETITION FOR A NATIONWIDE UNIT OF CONTROLLERS WHICH INCLUDED THE
CONTROLLERS IN THE UNIT IN THE INSTANT CASE; AND (2) WHETHER THE
SUBJECT PETITION, WHICH SOUGHT A FACILITY-WIDE UNIT, SHOULD BE DISMISSED
AS BEING AN ABUSE OF THE ADMINISTRATIVE PROCESS IN VIEW OF THE FACT THAT
IT WAS FILED AT A TIME WHEN THE PETITION FOR A NATIONWIDE UNIT OF
CONTROLLERS WAS PENDING.
THE ASSISTANT SECRETARY FOUND, IN ACCORD WITH HIS DECISION IN FEDERAL
AVIATION ADMINISTRATION, JACKSONVILLE AIR ROUTE TRAFFIC CONTROL CENTER,
A/SLMR NO. 231, THAT BECAUSE THE EMPLOYEES IN THE SUBJECT UNIT COULD NOT
BE INCLUDED IN THE NATIONWIDE UNIT SOUGHT IN THE PRIOR PETITION BECAUSE
THEY WERE COVERED BY A VALID NEGOTIATED AGREEMENT AT THE TIME SUCH
PETITION WAS FILED WHICH BARRED THEM FROM PARTICIPATING IN A
REPRESENTATION ELECTION, THE UNIT SOUGHT HEREIN IS NOT A "SUBDIVISION"
OF THE NATIONWIDE UNIT WITHIN THE MEANING OF SECTION 202.3(F) OF THE
ASSISTANT SECRETARY'S REGULATIONS.
AS TO THE SECOND ISSUE, THE ASSISTANT SECRETARY FOUND IN ACCORD WITH
HIS DECISION IN FEDERAL AVIATION ADMINISTRATION, JACKSONVILLE AIR ROUTE
CONTROL CENTER, CITED ABOVE, THAT IN VIEW OF THE FACT THAT AT THE TIME
THE PATCO FILED ITS PETITION FOR A NATIONWIDE UNIT, THE SUBJECT UNIT WAS
COVERED BY A NEGOTIATED AGREEMENT WHICH POSSIBLY BARRED ITS INCLUSION IN
THE NATIONWIDE UNIT, THE INSTANT PETITION DID NOT CONSTITUTE AN ABUSE OF
THE ADMINISTRATIVE PROCESS. ACCORDINGLY, THE ASSISTANT SECRETARY
DETERMINED THAT THE PETITION WAS VALID.
NOTING THE AGREEMENT OF THE PARTIES ON THE APPROPRIATENESS OF THE
UNIT SOUGHT, THE ASSISTANT SECRETARY FOUND THE UNIT WAS APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER AND DIRECTED AN
ELECTION IN THE UNIT.
FEDERAL AVIATION ADMINISTRATION,
MINNEAPOLIS AIR ROUTE TRAFFIC CONTROL CENTER,
FARMINGTON, MINNESOTA
AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFFILIATED WITH
MARINE ENGINEERS BENEFICIAL ASSOCIATION,
AFL-CIO
AND
LOCAL R9-2, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO REGIONAL
ADMINISTRATOR ABRAHAM S. FRIEDMAN'S ORDER TRANSFERRING CASE TO THE
ASSISTANT SECRETARY PURSUANT TO SECTION 205.5(A) AND 205.5(B) OF THE
ASSISTANT SECRETARY'S REGULATIONS.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES'
STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND A BRIEF FILED BY THE
PETITIONER, PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
AFFILIATED WITH MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, HEREIN
CALLED PATCO, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. PATCO SEEKS AN ELECTION IN A UNIT WHICH IS CURRENTLY REPRESENTED
BY LOCAL R9-2, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, HEREIN
CALLED NAGE. IN THIS CASE THE PARTIES STIPULATED THAT THE APPROPRIATE
UNIT FOR THE PURPOSE OF EXCLUSIVE RECOGNITION CONSISTS OF ALL AIR
TRAFFIC CONTROL SPECIALISTS, GS-2152 SERIES, INCLUDING FLOW CONTROLLERS,
AREA SPECIALISTS, PLANNING AND PROCEDURES SPECIALISTS AND MILITARY
LIAISON AND SECURITY SPECIALISTS EMPLOYED BY THE ACTIVITY AT THE
MINNEAPOLIS AIR ROUTE TRAFFIC CONTROL CENTER, FARMINGTON, MINNESOTA,
EXCLUDING TELETYPE OPERATORS, CLERICALS, ELECTRONIC TECHNICIANS,
EVALUATION AND PROFICIENCY DEVELOPMENT SPECIALISTS, FLIGHT DATA AIDES,
CARTOGRAPHERS, EVALUATION AND PROFICIENCY DEVELOPMENT OFFICERS, FACILITY
CHIEF, DEPUTY CHIEF, ASSISTANT CHIEFS, TEAM SUPERVISORS, AREA OFFICERS,
MILITARY SECURITY AND LIAISON OFFICERS, DATA SYSTEM OFFICERS, ASSISTANT
DATA SYSTEM OFFICERS, OPERATIONS OFFICERS, PLANNING OFFICERS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, OTHER MANAGEMENT OFFICIALS AND SUPERVISORS, AND GUARDS AS
DEFINED IN THE ORDER, AS AMENDED. /1/
TWO ISSUES WERE PRESENTED FOR DECISION: (1) WHETHER THE INSTANT
PETITION IS TIMELY WITHIN THE MEANING OF SECTION 202.3(F) OF THE
ASSISTANT SECRETARY'S REGULATIONS; /1/ AND (2) WHETHER THE INSTANT
PETITION IS INCONSISTENT WITH THE PETITION FOR A NATIONWIDE UNIT FILED
BY THE PATCO ON JUNE 7, 1971, AND, THEREFORE, INVALID.
THE RECORD REVEALS /3/ THAT THE PATCO FILED A PETITION ON JUNE 7,
1971, FOR A NATIONWIDE UNIT OF CONTROLLERS WHICH INCLUDED THE
CONTROLLERS IN THE UNIT SOUGHT IN THE SUBJECT CASE. AT THE TIME THE
PETITION FOR THE NATIONWIDE UNIT WAS FILED, THE CONTROLLERS INVOLVED IN
THIS CASE WERE COVERED BY A VALID NEGOTIATED AGREEMENT BETWEEN THE
ACTIVITY AND THE NAGE. A HEARING WAS HELD ON THE NATIONWIDE PETITION,
AND DURING THE HEARING THE NAGE, WHICH INTERVENED IN THE PROCEEDING,
CONTENDED THAT THE NEGOTIATED AGREEMENT CONSTITUTED A BAR TO THE
INCLUSION OF THE CONTROLLERS COVERED BY THE INSTANT PETITION IN THE
NATIONWIDE UNIT. THE HEARING CLOSED ON FEBRUARY 10, 1972, AND ON APRIL
14, 1972, THE PATCO FILED THE SUBJECT PETITIONED DURING THE 60 TO 90 DAY
PERIOD PRIOR TO THE EXPIRATION OF THE AFOREMENTIONED NEGOTIATED
AGREEMENT. SUBSEQUENTLY, IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT
OF TRANSPORTATION, CITED ABOVE, WHICH WAS ISSUED ON JULY 20, 1972, I
FOUND THAT THE NATIONWIDE UNIT SOUGHT BY THE PATCO WAS APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION. I FOUND ALSO THAT THE NEGOTIATED
AGREEMENT BETWEEN THE NAGE, AND THE ACTIVITY WHICH COVERED THE UNIT
INVOLVED HEREIN, CONSTITUTED A BAR TO AN ELECTION IN SUCH UNIT, AND,
CONSEQUENTLY, THE CONTROLLERS IN THE UNIT WERE EXCLUDED FROM THE
NATIONWIDE UNIT.
FOR THE REASONS ENUNCIATED IN FEDERAL AVIATION ADMINISTRATION,
JACKSONVILLE AIR ROUTE TRAFFIC CONTROL CENTER, A/SLMR NO.231, I FIND
THAT THE PETITION HEREIN IS NOT BARRED BY SECTION 202.3(F) OF THE
ASSISTANT SECRETARY'S REGULATIONS. THE EVIDENCE IN THE INSTANT CASE
ESTABLISHES THAT AT THE TIME THE PATCO FILED ITS PETITION FOR A
NATIONWIDE UNIT, THE CONTROLLERS HEREIN WERE COVERED BY A VALID
NEGOTIATED AGREEMENT WHICH PRECLUDED THEIR INCLUSION IN THE NATIONWIDE
UNIT. THUS, IN MY VIEW, BECAUSE THE CLAIMED UNIT COULD NOT BE INCLUDED
IN THE NATIONWIDE UNIT SOUGHT BY THE PATCO AND WAS SPECIFICALLY EXCLUDED
FROM THE UNIT FOUND APPROPRIATE, IT COULD NOT BE CONSIDERED A
"SUBDIVISION" OF THE NATIONWIDE UNIT WITHIN THE MEANING OF SECTION
202.3(F), BUT RATHER IS A SEPARATE APPROPRIATE UNIT. CONSEQUENTLY, I
FIND THE PETITION HEREIN IS NOT BARRED BY SECTION 202.3(F) OF THE
REGULATIONS OF THE ASSISTANT SECRETARY.
THE SECOND ISSUE RAISED THE QUESTION AS TO WHETHER THE PATCO, IN
FILING ITS PETITION FOR A NATIONWIDE UNIT AND SUBSEQUENTLY FILING THE
INSTANT PETITION FOR A LOCAL FACILITY-WIDE UNIT, WAS, IN EFFECT, TAKING
AN INCONSISTENT POSITION WHICH WOULD CONSTITUTE AN ABUSE OF THE
ADMINISTRATIVE PROCESSES UNDER THE EXECUTIVE ORDER WARRANTING THE
DISMISSAL OF THE SUBJECT PETITION. THE RECORD ESTABLISHES THAT WHILE
THE PATCO ATTEMPTED TO INCLUDE THE UNIT CLAIMED HEREIN IN A NATIONWIDE-
UNIT, SUCH UNIT WAS ALREADY COVERED BY A VALID NEGOTIATED AGREEMENT
WHICH THE NAGE SUCCESSFULLY ASSERTED CONSTITUTED A BAR TO ITS INCLUSION
IN THE NATIONWIDE UNIT. BASED UPON THE REASONS SET FORTH IN FEDERAL
AVIATION ADMINISTRATION, JACKSONVILLE AIR ROUTE TRAFFIC CONTROL CENTER,
CITED ABOVE, I FIND THAT THE PATCO ACTED REASONABLY AND DID NOT ABUSE
THE ADMINISTRATIVE PROCESS BY FILING THE PETITION IN THE SUBJECT CASE.
ACCORDINGLY, I FIND THE PETITION HEREIN IS NOT BARRED BY VIRTUE OF THE
FACT THAT THE CLAIMED EMPLOYEES WERE COVERED BY THE PATCO'S PRIOR
PETITION FOR A NATIONWIDE UNIT.
BASED ON THE FOREGOING, AND NOTING THE AGREEMENT OF THE PARTIES ON
THE APPROPRIATENESS OF THE UNIT SOUGHT, I FIND THAT THE CLAIMED UNIT IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I
SHALL DIRECT AN ELECTION IN THE FOLLOWING UNIT:
ALL NONSUPERVISORY AIR TRAFFIC CONTROL SPECIALISTS, GS-2152 SERIES,
INCLUDING FLOW
CONTROLLERS, AREA SPECIALISTS, PLANNING AND PROCEDURES SPECIALISTS
AND MILITARY LIAISON AND
SECURITY SPECIALISTS EMPLOYED AT THE MINNEAPOLIS AIR ROUTE TRAFFIC
CONTROL CENTER, FARMINGTON,
MINNESOTA, EXCLUDING TELETYPE OPERATORS, CLERICALS, ELECTRONIC
TECHNICIANS, EVALUATION AND
PROFICIENCY DEVELOPMENT SPECIALISTS, FLIGHT DATA AIDES,
CARTOGRAPHERS, EVALUATION AND
PROFICIENCY DEVELOPMENT OFFICERS, FACILITY CHIEF, DEPUTY CHIEF,
ASSISTANT CHIEFS, TEAM
SUPERVISORS, AREA OFFICERS, MILITARY SECURITY AND LIAISON OFFICERS,
DATA SYSTEM OFFICERS,
ASSISTANT DATA SYSTEM OFFICERS, OPERATIONS OFFICERS, PLANNING
OFFICERS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
OTHER MANAGEMENT OFFICIALS,
AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN
THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN 60
DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING THE EMPLOYEES WHO DID NOT WORK DURING THE PERIOD BECAUSE THEY
WERE OUT ILL OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOTBEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH THE MARINE
ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO; LOCAL R9-2, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES; OR NEITHER.
DATED, WASHINGTON, D.C.
DECEMBER 18, 1972
/1/ THE STIPULATED UNIT INCLUSIONS AND EXCLUSIONS ARE ESSENTIALLY THE
SAME AS THOSE INCLUDED IN AND EXCLUDED FROM THE UNIT FOUND APPROPRIATE
IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, A/SLMR
NO. 173.
/2/ SECTION 202.3(F) PROVIDES: "A PETITION FOR EXCLUSIVE RECOGNITION
OR OTHER PETITION FOR AN ELECTION WILL NOT BE CONSIDERED TIMELY IF FILED
WITHIN A TWELVE (12) MONTH PERIOD FOLLOWING THE CLOSE OF A HEARING
CONDUCTED PURSUANT TO SECTION 209.9 CONCERNING THE UNIT OR ANY
SUBDIVISION THEREOF."
/3/ ALL OF THE FACTS PRESENTED ARE DERIVED FROM THE PARTIES'
STIPULATION AND ACCOMPANYING EXHIBITS.
2 A/SLMR 232; P. 622; CASE NOS. 22-2701(RO), 22-2835(RO),
22-2924(RO); DECEMBER 18, 1972.
FEDERAL AVIATION ADMINISTRATION,
RICHMOND AIR TRAFFIC CONTROL TOWER
(BYRD TOWER), ROANOKE AIR TRAFFIC
CONTROL TOWER, AND WASHINGTON AIR
ROUTE TRAFFIC CONTROL CENTER
A/SLMR NO. 232
THE SUBJECT CASES INVOLVE REPRESENTATION PETITIONS FILED BY THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH
MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO (PATCO) SEEKING
ELECTIONS IN THREE UNITS OF EMPLOYEES CURRENTLY REPRESENTED BY LOCALS OF
THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE). THE NAGE
INTERVENED IN THE THREE CASES WHICH INVOLVED AIR TRAFFIC CONTROL
SPECIALISTS EMPLOYED AT THE RICHMOND AIR TRAFFIC CONTROL TOWER, THE
ROANOKE AIR TRAFFIC CONTROL TOWER, AND THE WASHINGTON AIR ROUTE TRAFFIC
CONTROL CENTER. THE PARTIES ENTERED INTO STIPULATIONS SETTING FORTH ALL
OF THE MATERIAL FACTS AND THE CASE WERE TRANSFERRED BY THE REGIONAL
ADMINISTRATOR TO THE ASSISTANT SECRETARY FOR DECISION.
TWO ISSUES WERE PRESENTED FOR DECISION: (1) WHETHER THE PETITIONS
WERE TIMELY FILED WITHIN THE MEANING OF SECTION 202.3(F) OF THE
ASSISTANT SECRETARY'S REGULATIONS; AND (2) WHETHER THE SUBJECT
PETITIONS, WHICH SOUGHT FACILITY-WIDE UNITS, SHOULD BE DISMISSED AS
BEING AN ABUSE OF THE ADMINISTRATIVE PROCESS IN VIEW OF THE FACT THAT
THEY WERE FILED AT A TIME WHEN A PETITION FOR A NATIONWIDE UNIT, WHICH
INCLUDED THE CONTROLLERS CLAIMED IN THE SUBJECT PETITIONS, WAS PENDING.
THE ASSISTANT SECRETARY FOUND THAT SECTION 202.3(F) OF THE
REGULATIONS WAS INAPPLICABLE TO THE SUBJECT PETITIONS INASMUCH AS SUCH
PETITIONS WERE FILED PRIOR TO THE CLOSE OF THE HEARING ON THE NATIONWIDE
PETITION. ACCORDINGLY, HE FOUND THAT THE SUBJECT PETITIONS WERE TIMELY
FILED.
AS TO THE SECOND ISSUE, THE ASSISTANT SECRETARY DETERMINED THAT FOR
THE REASONS ENUNCIATED IN FEDERAL AVIATION ADMINISTRATION, JACKSONVILLE
AIR ROUTE TRAFFIC CONTROL CENTER, A/SLMR NO. 231, THE PETITIONS HEREIN
DID NOT CONSTITUTE AN ABUSE OF THE ADMINISTRATIVE PROCESS. THE
ASSISTANT SECRETARY NOTED THAT BY FILING THE SUBJECT PETITIONS THE PATCO
MERELY WAS ATTEMPTING TO PROTECT ITS INTEREST IN SUCH UNITS IN THE EVENT
THAT ITS NATIONWIDE PETITION WAS FOUND NOT TO ENCOMPASS THEM.
ACCORDINGLY, THE ASSISTANT SECRETARY DETERMINED THAT EACH OF THE
PETITIONS WAS NOT BARRED.
NOTING THE AGREEMENT OF THE PARTIES ON THE APPROPRIATENESS OF THE
UNITS SOUGHT, THE ASSISTANT SECRETARY FOUND THE UNITS APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER AND DIRECTED AN
ELECTION IN EACH UNIT.
FEDERAL AVIATION ADMINISTRATION,
RICHMOND AIR TRAFFIC CONTROL TOWER
(BYRD TOWER)
AND
RICHMOND TOWER CHAPTER, PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATIONS,
AFFILIATED WITH MARINE ENGINEERS
BENEFICIAL ASSOCIATION, AFL-CIO
AND
LOCAL R4-21, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
FEDERAL AVIATION ADMINISTRATION,
ROANOKE AIR TRAFFIC CONTROL TOWER
AND
ROANOKE AIR TRAFFIC CONTROL TOWER CHAPTER,
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFFILIATED WITH MARINE
ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO
AND
LOCAL R4-16, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
FEDERAL AVIATION ADMINISTRATION,
WASHINGTON AIR ROUTE TRAFFIC CONTROL CENTER
AND
WASHINGTON CENTER CHAPTER, PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED
WITH MARINE ENGINEERS BENEFICIAL ASSOCIATION,
AFL-CIO
AND
LOCAL R3-28, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO REGIONAL
ADMINISTRATOR W. J. R. OVERATH'S CONSOLIDATED ORDER TRANSFERRING CASES
TO THE ASSISTANT SECRETARY OF LABOR PURSUANT TO SECTION 205.5(A) AND
205.5(B) OF THE ASSISTANT SECRETARY'S REGULATIONS.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING THE PARTIES'
STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND A BRIEF FILED BY THE
PETITIONER, PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
AFFILIATED WITH MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, HEREIN
CALLED PATCO, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITIES.
2. PATCO FILED THREE REPRESENTATION PETITIONS IN THE SUBJECT CASES
SEEKING ELECTIONS IN THREE SEPARATE UNITS WHICH ARE CURRENTLY
REPRESENTED BY LOCALS OF THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, HEREIN CALLED NAGE, AND WHICH ARE LOCATED AT THE RICHMOND,
VIRGINIA, AIR TRAFFIC CONTROL TOWER (CASE NO. 22-2701(RO); THE ROANOKE,
VIRGINIA, AIR TRAFFIC CONTROL TOWER (CASE NO. 22-2835(RO); AND THE
WASHINGTON AIR TRAFFIC CONTROL CENTER LOCATED AT LEESBURG, VIRGINIA
(CASE NO. 22-2924(RO)). IN EACH CASE, THE PARTIES STIPULATED THAT THE
APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE RECOGNITION CONSISTED OF
ALL NONSUPERVISORY AIR TRAFFIC CONTROL SPECIALISTS, GS-2152 SERIES,
INCLUDING FLOW CONTROLLERS, AREA SPECIALISTS, PLANNING AND PROCEDURES
SPECIALISTS, AND MILITARY LIAISON AND SECURITY SPECIALISTS, EXCLUDING
TELETYPE OPERATORS, CLERICALS,ELECTRONIC TECHNICIANS, EVALUATION AND
PROFICIENCY DEVELOPMENT SPECIALISTS, FLIGHT DATA AIDES, CARTOGRAPHERS,
EVALUATION AND PROFICIENCY DEVELOPMENT OFFICERS, FACILITY CHIEFS, DEPUTY
CHIEFS, ASSISTANT CHIEFS, TEAM SUPERVISORS, AREA OFFICERS, MILITARY
SECURITY AND LIAISON OFFICERS, DATA SYSTEM OFFICERS, ASSISTANT DATA
SYSTEM OFFICERS, OPERATIONS OFFICERS, PLANNING OFFICERS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, OTHER MANAGEMENT OFFICIALS SUPERVISORS, AND GUARDS AS DEFINED
IN THE ORDER. /1/
TWO ISSUES WERE PRESENTED FOR DECISION: (1) WHETHER THE INSTANT
PETITIONS ARE TIMELY WITHIN THE MEANING OF SECTION 202.3(F) OF THE
ASSISTANT SECRETARY'S REGULATIONS; /2/ AND (2) WHETHER THE INSTANT
PETITIONS ARE INCONSISTENT WITH THE PRIOR PETITION FOR A NATIONWIDE UNIT
FILED BY THE PATCO ON JUNE 7, 1971 AND, THEREFORE, INVALID.
THE RECORD REVEALS /3/ THAT ON JUNE 7, 1971, THE PATCO FILED A
PETITION FOR A NATIONWIDE UNIT OF AIR TRAFFIC CONTROL SPECIALISTS,
GS-2152 SERIES, WHICH INCLUDED THE CONTROLLERS IN THE UNITS SOUGHT IN
THE INSTANT PROCEEDING. AT THE TIME THE NATIONWIDE PETITION WAS FILED
THE UNITS CLAIMED HEREIN WERE COVERED BY NEGOTIATED AGREEMENTS BETWEEN
THE ACTIVITY AND THE NAGE. SUBSEQUENTLY, THE PATCO FILED THE INSTANT
PETITIONS. /4/ EACH OF THESE PETITIONS WAS FILED DURING THE 60 TO 90 DAY
PERIOD PRIOR TO EXPIRATION OF THE NEGOTIATED AGREEMENT THAT COVERED THE
UNIT CLAIMED IN THE PARTICULAR PETITION. THEREAFTER, ON FEBRUARY 10,
1972, THE HEARING HELD ON THE NATIONWIDE PETITION CLOSED. DURING THAT
HEARING, THE NAGE WHICH PARTICIPATED AS A INTERVENOR, CONTENDED THAT THE
NEGOTIATED AGREEMENTS WHICH COVERED THE SUBJECT UNITS, CONSTITUTED BARS
TO THE INCLUSION OF SUCH UNITS IN THE NATIONWIDE UNIT SOUGHT BY THE
PATCO. SUBSEQUENTLY, IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, CITED ABOVE, WHICH WAS ISSUED ON JULY 20, 1972, I FOUND
THAT THE NATIONWIDE UNIT SOUGHT BY THE PATCO WAS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER. I ALSO DETERMINED
THAT THE NEGOTIATED AGREEMENTS BETWEEN THE NAGE, AND THE ACTIVITY WHICH
COVERED THE UNITS SOUGHT BY THE INSTANT PETITIONS CONSTITUTED BARS TO AN
ELECTION IN SUCH UNITS AND, CONSEQUENTLY, THE CONTROLLERS IN SUCH UNITS
WERE EXCLUDED FROM THE NATIONWIDE UNIT FOUND APPROPRIATE.
AS TO THE FIRST ISSUE RAISED BY THE STIPULATED RECORD HEREIN, THE
EVIDENCE ESTABLISHED THAT THE PETITIONS FILED IN THE SUBJECT CASES WERE
FILED PRIOR TO THE CLOSE OF THE HEARING ON THE PATCO'S PETITION FOR A
NATIONWIDE UNIT. ACCORDINGLY, SECTION 202.3(F) OF THE ASSISTANT
SECRETARY'S REGULATIONS WHICH, AS NOTED ABOVE AT FOOTNOTE 2, PROVIDES
THAT A PETITION FOR EXCLUSIVE RECOGNITION WILL NOT BE CONSIDERED TIMELY
IF FILED WITHIN A TWELVE (12) MONTH PERIOD FOLLOWING THE CLOSE OF A
HEARING CONCERNING THE UNIT OR ANY SUBDIVISION THEREOF, IS CLEARLY
INAPPLICABLE TO THE PETITIONS IN THIS PROCEEDING. /5/ IN THESE
CIRCUMSTANCES, I FIND THAT THE SUBJECT PETITIONS WERE FILED TIMELY.
THE SECOND ISSUE RAISED THE QUESTION AS TO WHETHER THE PATCO, IN
FILING ITS PETITION FOR A NATIONWIDE UNIT AND SUBSEQUENTLY FILING LOCAL
PETITIONS FOR FACILITY-WIDE UNITS, WAS, IN EFFECT, TAKING INCONSISTENT
POSITIONS WHICH WOULD CONSTITUTE AN ABUSE OF THE ADMINISTRATIVE PROCESS
UNDER THE EXECUTIVE ORDER WARRANTING DISMISSAL OF THE SUBJECT PETITIONS.
FOR THE REASONS ENUNCIATED IN FEDERAL AVIATION ADMINISTRATION,
JACKSONVILLE AIR ROUTE TRAFFIC CONTROL CENTER, CITED ABOVE, I FIND THAT
THE PATCO ACTED REASONABLY AND DID NOT ABUSE THE ADMINISTRATIVE PROCESS
BY ITS ATTEMPT DURING THE PROCESSING OF ITS NATIONWIDE PETITION TO
PROTECT ITS INTEREST IN THE SUBJECT UNITS IN THE EVENT THAT ITS
NATIONWIDE PETITION WAS FOUND NOT TO ENCOMPASS SUCH UNITS. ACCORDINGLY,
I FIND THAT THE PETITIONS HEREIN ARE NOT BARRED BY VIRTUE OF THE FACT
THAT THE CLAIMED EMPLOYEES WERE COVERED BY THE PATCO'S NATIONWIDE
PETITION.
BASED ON THE FOREGOING, AND NOTING THE AGREEMENT OF THE PARTIES ON
THE APPROPRIATENESS OF THE UNITS SOUGHT, I FIND THAT THE CLAIMED UNITS
ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER
AND WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL DIRECT AN ELECTION IN EACH OF THE UNITS SOUGHT AT
THE RICHMOND AIR TRAFFIC CONTROL TOWER; THE ROANOKE AIR TRAFFIC CONTROL
TOWER; AND THE WASHINGTON AIR ROUTE TRAFFIC CONTROL CENTER AT LEESBURG,
VIRGINIA. THE FOLLOWING UNIT DESCRIPTION SHOULD BE UTILIZED AT EACH OF
THE LOCATIONS INVOLVED WITH THE NAME OF THE APPROPRIATE ACTIVITY
INSERTED:
ALL NONSUPERVISORY AIR TRAFFIC CONTROL SPECIALISTS, GS-2152 SERIES,
INCLUDING FLOW
CONTROLLERS, AREA SPECIALISTS, PLANNING AND PROCEDURES SPECIALISTS
AND MILITARY LIAISON AND
SECURITY SPECIALISTS; EXCLUDING TELETYPE OPERATORS, CLERICALS,
ELECTRONIC TECHNICIANS,
EVALUATION AND PROFICIENCY DEVELOPMENT SPECIALISTS, FLIGHT DATA
AIDES, CARTOGRAPHERS,
EVALUATION AND PROFICIENCY DEVELOPMENT OFFICERS, FACILITY CHIEFS,
DEPUTY CHIEFS, ASSISTANT
CHIEFS, TEAM SUPERVISORS, AREA OFFICERS, MILITARY SECURITY AND
LIAISON OFFICERS, DATA SYSTEM
OFFICERS, ASSISTANT DATA SYSTEM OFFICERS, OPERATIONS OFFICERS,
PLANNING OFFICERS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, OTHER MANAGEMENT
OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN
EACH OF THE UNITS FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER
THAN 60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR
SHALL SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING THE EMPLOYEES WHO DID NOT WORK DURING THE PERIOD BECAUSE THEY
WERE OUT ILL OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE RICHMOND
TOWER CHAPTER, THE ROANOKE AIR TRAFFIC CONTROL TOWER CHAPTER, OR THE
WASHINGTON CENTER CHAPTER (AS APPROPRIATE), PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, AFFILIATED WITH MARINE ENGINEERS BENEFICIAL
ASSOCIATION, AFL-CIO, BY LOCALS R4-16, OR R3-18 (AS APPROPRIATE),
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES; OR BY NEITHER.
DATED, WASHINGTON, D.C.
DECEMBER 18, 1972
/1/ THE STIPULATED UNIT INCLUSIONS AND EXCLUSIONS ARE ESSENTIALLY THE
SAME AS THOSE INCLUDES IN AND EXCLUDED FROM THE UNIT FOUND APPROPRIATE
IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, A/SLMR
NO. 173.
/2/ SECTION 202.3(F) PROVIDES: "A PETITION FOR EXCLUSIVE RECOGNITION
OR OTHER PETITION FOR AN ELECTION WILL NOT BE CONSIDERED TIMELY IF FILED
WITHIN A TWELVE (12) MONTH PERIOD FOLLOWING THE CLOSE OF A HEARING
CONDUCTED PURSUANT TO SECTION 209.9 CONCERNING THE UNIT OR ANY
SUBDIVISION THEREOF."
/3/ ALL OF THE FACTS PRESENTED ARE DERIVED FROM THE PARTIES'
STIPULATION AND ACCOMPANYING EXHIBITS.
/4/ THE PETITION IN CASE NO. 22-2701(RO) WAS FILED ON AUGUST 20,
1971;
THE PETITION IN CASE NO. 22-2835(RO) WAS FILED ON AUGUST 20, 1971;
THE PETITION IN CASE NO. 22-2924(RO) WAS FILED ON DECEMBER 13, 1971.
/5/ MOREOVER, EVEN ASSUMING THAT THE SUBJECT PETITIONS WERE FILED
FOLLOWING THE CLOSE OF THE HEARING THEY WOULD BE VIEWED AS TIMELY FILED.
SEE FEDERAL AVIATION ADMINISTRATION, JACKSONVILLE AIR ROUTE TRAFFIC
CONTROL CENTER, A/SLMR NO. 231.
2 A/SLMR 231; P. 619; CASE NO. 42-2109(RO); DECEMBER 18, 1972.
FEDERAL AVIATION ADMINISTRATION,
JACKSONVILLE AIR ROUTE TRAFFIC CONTROL CENTER
A/SLMR NO.231
THE SUBJECT CASE INVOLVES A REPRESENTATION PETITION FILED BY THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH
MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO (PATCO), FOR A UNIT OF
AIR TRAFFIC CONTROL SPECIALISTS EMPLOYED AT THE JACKSONVILLE AIR ROUTE
TRAFFIC CONTROL CENTER. LOCAL R5-20, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES (NAGE) INTERVENED IN THE CASE. THE PARTIES ENTERED INTO A
STIPULATION SETTING FORTH ALL MATERIAL FACTS AND THE CASE WAS
TRANSFERRED BY THE REGIONAL ADMINISTRATOR TO THE ASSISTANT SECRETARY FOR
DECISION.
THREE ISSUES WERE PRESENTED FOR DECISION: (1) WHETHER THE PETITION
WAS FILED TIMELY WITHIN THE MEANING OF SECTION 202.3(F) OF THE ASSISTANT
SECRETARY'S REGULATIONS IN VIEW OF THE FACT THAT IT WAS FILED WITHIN THE
TWELVE (12) MONTH PERIOD FOLLOWING THE CLOSE OF THE HEARING ON A
PETITION FILED BY THE PATCO FOR A NATIONWIDE UNIT OF CONTROLLERS, WHICH
INCLUDED THE CONTROLLERS CLAIMED HEREIN; (2) WHETHER THE INSTANT
PETITION, WHICH SOUGHT A FACILITY-WIDE UNIT, SHOULD BE DISMISSED AS
BEING AN ABUSE OF THE ADMINISTRATIVE PROCESS IN VIEW OF THE FACT THAT IT
WAS FILED AT A TIME WHEN THE PETITION FOR A NATIONWIDE UNIT OF
CONTROLLERS WAS PENDING; AND (3) WHETHER THE APPROPRIATE UNIT SHOULD
INCLUDE TELETYPE OPERATORS AND FLIGHT DATA AIDES IN VIEW OF THE FACT
THAT THEY ARE COVERED BY THE SAME NEGOTIATED AGREEMENT AS THE
CONTROLLERS.
THE ASSISTANT SECRETARY FOUND THAT BECAUSE THE EMPLOYEES IN THE
CLAIMED UNIT COULD NOT BE INCLUDED IN THE NATIONWIDE UNIT SOUGHT BY THE
PATCO IN ITS PRIOR PETITION BASED ON THE EXISTENCE OF A PROCEDURAL BAR
AT THE TIME SUCH PETITION WAS FILED AND, THEREFORE, WERE BARRED FROM
PARTICIPATING IN A REPRESENTATION ELECTION, THE UNIT HEREIN COULD NOT BE
CONSIDERED TO BE A "SUBDIVISION" OF THE NATIONWIDE UNIT DETERMINED TO BE
APPROPRIATE. RATHER, HE VIEWED THE CLAIMED UNIT AS A SEPARATE
APPROPRIATE UNIT. THE ASSISTANT SECRETARY INDICATED THAT SECTION
202.3(F) WAS DESIGNED TO REACH THOSE SITUATIONS WHERE A PETITION WAS
DISMISSED AFTER A UNIT DETERMINATION HEARING AND WITHIN 12 MONTHS
THEREAFTER THE SAME UNIT OR SUBDIVISION THEREOF IS PETITIONED FOR AGAIN.
HE NOTED THAT THE PATCO'S PETITION FOR A NATIONWIDE UNIT HAD NOT BEEN
DISMISSED, BUT RATHER WAS MODIFIED BECAUSE OF PROCEDURAL BARS. UNDER
THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THE PETITION HEREIN WAS
NOT BARRED BY SECTION 202.3(F) OF THE REGULATIONS.
AS TO THE SECOND ISSUE, THE ASSISTANT SECRETARY DETERMINED THAT BASED
ON THE FACT THAT AT THE TIME THE PATCO FILED ITS PETITION FOR A
NATIONWIDE UNIT THE SUBJECT UNIT WAS COVERED BY A NEGOTIATED AGREEMENT
WHICH POSSIBLY BARRED ITS INCLUSION IN THE NATIONWIDE UNIT, THE FILING
OF THE PETITION HEREIN DID NOT CONSTITUTE AN ABUSE OF THE ADMINISTRATIVE
PROCESS. THE ASSISTANT SECRETARY NOTED THAT ANY OTHER COURSE OF ACTION
BY THE PATCO COULD HAVE RESULTED IN PRECLUDING IT FROM RAISING A TIMELY
QUESTION CONCERNING REPRESENTATION IN THE INSTANT UNIT FOR A SUBSTANTIAL
PERIOD OF TIME. ACCORDINGLY, THE ASSISTANT SECRETARY DETERMINED THAT
THE PETITION WAS NOT INVALID.
REGARDING THE THIRD ISSUE, THE ASSISTANT SECRETARY DETERMINED THAT A
UNIT RESTRICTED TO THE CONTROLLERS, AS REQUESTED BY THE PATCO, WAS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER IN
VIEW OF THE FACT THAT WHILE THE CONTROLLERS, TELETYPE OPERATORS AND
FLIGHT DATA AIDES WERE COVERED BY THE SAME NEGOTIATED AGREEMENT, THE
AGREEMENT WAS A MULTI-UNIT AGREEMENT AND THE CONTROLLERS AND THE
TELETYPE OPERATORS AND FLIGHT DATA AIDES WERE REPRESENTED IN TWO
SEPARATE UNITS; AND THE FACT THAT, AS FOUND IN FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, A/SLMR NO. 173, THE
CONTROLLERS HAD A SEPARATE AND DISTINCT COMMUNITY OF INTEREST FROM THAT
OF THE TELETYPE OPERATORS AND FLIGHT DATA SIDES.
FEDERAL AVIATION ADMINISTRATION,
JACKSONVILLE AIR ROUTE TRAFFIC CONTROL CENTER
AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFFILIATED WITH MARINE
ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO
AND
LOCAL R5-20, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO REGIONAL
ADMINISTRATOR J. Y. CHENNAULT'S CONSOLIDATED ORDER TRANSFERRING CASE TO
THE ASSISTANT SECRETARY OF LABOR PURSUANT TO SECTION 205.5(A) AND
205.5(B) OF THE ASSISTANT SECRETARY'S REGULATIONS.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES'
STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND A BRIEF FILED BY THE
PETITIONER, PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
AFFILIATED WITH MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, HEREIN
CALLED PATCO, AND THE ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. PATCO SEEKS AN ELECTION IN A UNIT CONSISTING OF ALL
NONSUPERVISORY AIR TRAFFIC CONTROL SPECIALISTS, GS-2152 SERIES,
REGARDLESS OF GRADE, AT THE JACKSONVILLE AIR ROUTE TRAFFIC CONTROL
CENTER, HILLIARD, FLORIDA, EXCLUDING ALL PROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
THE EMPLOYEE CLASSIFICATION COVERED BY THE INSTANT PETITION IS
ESSENTIALLY THE SAME CLASSIFICATION AS THAT SOUGHT BY THE PATCO IN
FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, A/SLMR
NO. 173. THE RECORD REVEALS THAT AT THE TIME THE PATCO FILED ITS
PETITION FOR A NATIONWIDE UNIT ON JUNE 7, 1971, THE CONTROLLERS CLAIMED
HEREIN WERE COVERED BY A "MULTI-UNIT" NEGOTIATED AGREEMENT BETWEEN THE
ACTIVITY AND THE INTERVENOR, LOCAL R5-20, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, HEREIN CALLED NAGE, WHICH ALSO COVERED TELETYPE
OPERATORS AND FLIGHT DATA SIDES.
IN ADDITION TO PRESENTING AN ISSUE AS TO THE APPROPRIATENESS OF THE
CLAIMED UNIT, THE INSTANT CASE PRESENTS TWO OTHER ISSUES: (1) WHETHER
THE INSTANT PETITION WAS FILED TIMELY WITHIN THE MEANING OF SECTION
202.3(F) OF THE ASSISTANT SECRETARY'S REGULATIONS IN VIEW OF THE FACT
THAT IT WAS FILED DURING THE 12-MONTH PERIOD FOLLOWING THE CLOSE OF THE
HEARING IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, CITED ABOVE, WHICH, AS NOTED ABOVE, INVOLVED A PETITION
FOR A NATIONWIDE UNIT OF CONTROLLERS, INCLUDING THE CONTROLLERS COVERED
BY THE SUBJECT PETITION; /1/ AND (2) WHETHER THE PETITION HEREIN IS
INVALID AND SHOULD BE DISMISSED BECAUSE IT IS INCONSISTENT WITH THE
PATCO'S PRIOR PETITION FOR A NATIONWIDE UNIT.
THE RECORD REVEALS /2/ THAT ON JUNE 7, 1971, AT THE TIME THE PATCO
FILED ITS PETITION FOR A NATIONWIDE UNIT, THE CONTROLLERS HEREIN WERE
COVERED BY A NEGOTIATED AGREEMENT BETWEEN THE NAGE AND THE ACTIVITY
WHICH WAS AWAITING APPROVAL AT A HIGHER MANAGEMENT LEVEL. THIS
AGREEMENT, OF ONE YEAR'S DURATION, WAS APPROVED ON JULY 15, 1971.
SUBSEQUENTLY, A HEARING WAS HELD ON THE NATIONWIDE PETITION WHICH CLOSED
ON FEBRUARY 10, 1972. DURING THE HEARING, THE NAGE, WHICH INTERVENED IN
THE PROCEEDING, CONTENDED THAT ITS NEGOTIATED AGREEMENT WITH THE
ACTIVITY CONSTITUTED A BAR TO THE INCLUSION IN THE NATIONWIDE UNIT OF
THE CONTROLLERS COVERED BY SUCH AGREEMENT. FOLLOWING THE CLOSE OF THE
HEARING, ON APRIL 25, 1972, THE PATCO FILED THE PETITION HEREIN. /3/ ON
JULY 20, 1972, THE DECISION ON THE NATIONWIDE PETITION-- FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, CITED ABOVE-- WAS
ISSUED BY THE ASSISTANT SECRETARY. IN THAT DECISION, I FOUND THAT A
RESIDUAL NATIONWIDE UNIT OF CONTROLLERS WAS APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION UNDER THE EXECUTIVE ORDER. I ALSO DETERMINED
THAT THE NEGOTIATED AGREEMENT BETWEEN THE NAGE AND THE ACTIVITY WHICH
COVERED THE CONTROLLERS IN THE INSTANT CASE BARRED THE INCLUSION OF SUCH
CONTROLLERS IN THE NATIONWIDE UNIT FOUND APPROPRIATE.
UNDER ALL THE CIRCUMSTANCES OF THIS CASE, I FIND THAT THE PETITION
HEREIN WAS FILED TIMELY. AS NOTED ABOVE, WHEN THE PATCO FILED ITS
PETITION FOR A NATIONWIDE UNIT ON JUNE 7, 1971, THE CONTROLLERS HEREIN
ALREADY WERE COVERED BY A VALID NEGOTIATED AGREEMENT WHICH WAS AWAITING
APPROVAL AT A HIGHER LEVEL OF MANAGEMENT. SUCH AGREEMENT, THEREFORE,
WAS FOUND TO CONSTITUTE A BAR TO ANY ELECTION IN THE EXCLUSIVELY
RECOGNIZED UNIT. IN MY VIEW, BECAUSE THE UNIT CLAIMED HEREIN COULD NOT
BE INCLUDED IN THE NATIONWIDE UNIT SOUGHT BY THE PATCO, BASED ON A
PROCEDURAL BAR, AND THEREFORE, WAS EXCLUDED SPECIFICALLY FROM THE UNIT
FOUND APPROPRIATE, IT SHOULD NOT BE VIEWED AS A "SUBDIVISION" OF THE
CLAIMED NATIONWIDE UNIT WITHIN THE MEANING AND INTENT OF SECTION
202.3(F) OF THE ASSISTANT SECRETARY'S REGULATIONS, BUT RATHER, IT SHOULD
BE VIEWED AS A SEPARATE APPROPRIATE UNIT. IN THIS CONNECTION, SECTION
202.3(F), WHEN READ IN CONJUNCTION WITH SECTIONS 202.3(A) AND (B) OF THE
ASSISTANT SECRETARY'S REGULATIONS, INDICATES AN INTENT TO REACH A
SITUATION WHERE A PETITION IS DISMISSED BY THE ASSISTANT SECRETARY AFTER
A UNIT DETERMINATION HEARING AND WITHIN 12 MONTHS THEREAFTER THE SAME
UNIT OR SUBDIVISION THEREOF IS PETITIONED FOR AGAIN. WHERE, AS HERE,
HOWEVER, A PETITION IS NOT DISMISSED BUT RATHER A UNIT IS MODIFIED BY
THE ASSISTANT SECRETARY BECAUSE OF PROCEDURAL BARS TO EXCLUDE AN
EXISTING UNIT OR UNITS, SUCH EXISTING UNIT OR UNITS MAY BE PETITIONED
FOR AT ANYTIME THEREAFTER IN ACCORDANCE WITH THE APPROPRIATE TIMELINESS
REQUIREMENTS OF THE ASSISTANT SECRETARY'S REGULATIONS AND WITHOUT REGARD
TO THE BAR ESTABLISHED IN SECTION 202.3(F). UNDER THESE CIRCUMSTANCES,
I FIND THAT THE INSTANT PETITION IS NOT BARRED BY SECTION 202.3(F) OF
THE ASSISTANT SECRETARY'S REGULATIONS.
THE SECOND ISSUE RAISES THE QUESTION AS TO WHETHER THE PATCO, IN
FILING THE PETITION FOR A NATIONWIDE UNIT AND SUBSEQUENTLY FILING THE
PETITION HEREIN FOR A LOCAL FACILITY-WIDE UNIT WAS, IN EFFECT, TAKING
INCONSISTENT POSITIONS WHICH WOULD CONSTITUTE AN ABUSE OF THE
ADMINISTRATIVE PROCESS UNDER THE EXECUTIVE ORDER WARRANTING DISMISSAL OF
THE INSTANT PETITION. IN THIS REGARD, THE EVIDENCE ESTABLISHES THAT
ALTHOUGH THE PATCO ATTEMPTED TO INCLUDE THE EMPLOYEES IN THE CLAIMED
UNIT IN THE SUBJECT CASE IN ITS PROPOSED NATIONWIDE UNIT, THE CLAIMED
UNIT ALREADY WAS COVERED BY A VALID NEGOTIATED AGREEMENT WHICH THE NAGE
SUCCESSFULLY CONTENDED CONSTITUTED A BAR TO ITS INCLUSION IN THE
NATIONWIDE UNIT. IN VIEW OF THE EXISTENCE OF A POSSIBLE AGREEMENT BAR,
I FIND THAT THE PATCO ACTED REASONABLY AND DID NOT ABUSE THE
ADMINISTRATIVE PROCESS BY ITS ATTEMPT DURING THE PROCESSING OF ITS
NATIONWIDE PETITION TO PROTECT ITS INTEREST IN THE SUBJECT UNIT IN THE
EVENT ITS NATIONWIDE PETITION WAS FOUND NOT TO ENCOMPASS THE INSTANT
UNIT. ANY OTHER COURSE OF ACTION COULD HAVE RESULTED IN THE PATCO BEING
PRECLUDED FROM RAISING A TIMELY QUESTION CONCERNING THE REPRESENTATION
IN SUCH UNIT FOR A SUBSTANTIAL PERIOD OF TIME. UNDER THESE
CIRCUMSTANCES, I FIND THAT THE SUBJECT PETITION IS NOT BARRED BY VIRTUE
OF THE FACT THAT THE CLAIMED EMPLOYEES WERE COVERED BY THE PATCO'S
NATIONWIDE PETITION.
THE RECORD REVEALS THAT THE ACTIVITY GRANTED THE NAGE EXCLUSIVE
RECOGNITION FOR A UNIT OF ALL OF ITS NONSUPERVISORY AIR TRAFFIC CONTROL
SPECIALISTS ON DECEMBER 14, 1965. ON JUNE 5, 1967, THE ACTIVITY GRANTED
THE NAGE EXCLUSIVE RECOGNITION FOR A UNIT OF ALL NONSUPERVISORY TELETYPE
OPERATORS. THEREAFTER, ON DECEMBER 4, 1967, THE RECOGNITION INVOLVING
THE UNIT OF TELETYPE OPERATORS WAS AMENDED TO INCLUDE FLIGHT DATA AIDES.
THE NAGE AND THE ACTIVITY EXECUTED THEIR ONLY NEGOTIATED AGREEMENT
INVOLVING THESE UNITS ON JULY 15, 1971. THE PARTIES STIPULATED THAT
THIS AGREEMENT WAS A "MULTI-UNIT AGREEMENT" WHICH INCLUDED BOTH OF THE
RECOGNIZED UNITS. THEY ALSO STIPULATED THAT THE DUTIES AND
RESPONSIBILITIES OF THE CONTROLLERS, TELETYPE OPERATORS AND FLIGHT DATA
AIDES ARE THE SAME AS THE DUTIES AND RESPONSIBILITIES OF THE
CONTROLLERS, TELETYPE OPERATORS AND FLIGHT DATA AIDES IN FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, CITED ABOVE,
WHEREIN IT WAS DETERMINED THAT THE DUTIES, SKILLS, AND RESPONSIBILITIES
OF CONTROLLERS DIFFERED FROM THOSE OF THE TELETYPE OPERATORS AND THE
FLIGHT DATA AIDES, AND THAT THE CONTROLLERS HAD A SEPARATE AND DISTINCT
COMMUNITY OF INTEREST WHICH DIFFERED FROM THAT OF THE ACTIVITY'S OTHER
EMPLOYEES.
UNDER ALL THE CIRCUMSTANCES, INCLUDING THE FINDING IN FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, CITED ABOVE,
CONCERNING THE LACK OF COMMUNITY OF INTEREST BETWEEN CONTROLLERS AND
TELETYPE OPERATORS AND FLIGHT DATA AIDES, AND IN VIEW OF THE FACT THAT
ALTHOUGH COVERED UNDER THE SAME "MULTI-UNIT "AGREEMENT," TELETYPE
OPERATORS AND FLIGHT DATA AIDES AT THE ACTIVITY HEREIN HAVE BEEN
RECOGNIZED IN A UNIT SEPARATE FROM CONTROLLERS, I FIND THAT A UNIT OF
CONTROLLERS AS PETITIONED FOR BY THE PATCO IN THE SUBJECT CASE IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER /4/
AND THAT SUCH UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. ACCORDINGLY, I SHALL DIRECT THAT AN ELECTION BE
CONDUCTED IN THE FOLLOWING UNIT:
ALL NONSUPERVISORY AIR TRAFFIC CONTROL SPECIALISTS, EMPLOYED AT THE
AIR ROUTE TRAFFIC
CONTROL CENTER, HILLIARD, FLORIDA, EXCLUDING TELETYPE OPERATORS,
FLIGHT DATA AIDES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT
OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER. /5/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND TO BE APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER
THAN 60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR
SHALL SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THE PERIOD BECAUSE THEY WERE
OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY
SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE
EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH MARINE ENGINEERS
BENEFICIAL ASSOCIATION, AFL-CIO; OR LOCAL R5-20, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES' OR NEITHER.
DATED, WASHINGTON, D.C.
DECEMBER 18, 1972
/1/ SECTION 202.3(F) PROVIDES: "A PETITION FOR EXCLUSIVE RECOGNITION
OR OTHER PETITION FOR AN ELECTION WILL NOT BE CONSIDERED TIMELY IF FILED
WITHIN A TWELVE (12) MONTH PERIOD FOLLOWING THE CLOSE OF A HEARING
CONDUCTED PURSUANT TO SECTION 202.9 CONCERNING THE UNIT OR ANY
SUBDIVISION THEREOF."
/2/ ALL OF THE FACTS ARE DERIVED FROM THE PARTIES, STIPULATION AND
ACCOMPANYING EXHIBITS.
/3/ THE PETITION WAS FILED DURING THE 60 TO 90 DAY PERIOD PRIOR TO
THE EXPIRATION OF THE NEGOTIATED AGREEMENT WHICH COVERED THE CLAIMED
UNIT.
/4/ AS THE EVIDENCE IN THIS CASE ESTABLISHES THAT THE CONTROLLERS AND
THE TELETYPE OPERATORS AND FLIGHT DATA AIDES HAVE BEEN REPRESENTED IN
SEPARATE UNITS, I FIND THAT THE PRINCIPLES SET FORTH IN UNITED STATES
NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, REGARDING UNIT
SEVERANCE ARE INAPPLICABLE.
/5/ THE ABOVE UNIT IS AS ESTABLISHED BY THE RECORD HEREIN WITH THE
ADDITION OF THE STANDARD EXCLUSIONS SET FORTH IN SECTION 10(B) OF THE
EXECUTIVE ORDER.
2 A/SLMR 230; P. 613; CASE NO. 63-3383(RO); DECEMBER 18, 1972.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
AIRWAY FACILITIES SECTOR,
FORT WORTH, TEXAS
A/SLMR NO. 230
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
UNION 2606, AFL-CIO (AFGE) SOUGHT AN ELECTION IN A UNIT OF ALL GENERAL
SCHEDULE (GS) AND WAGE BOARD (WB) EMPLOYEES OF THE FORT WORTH AIRWAY
FACILITIES SECTOR (AFS, FORT WORTH), A PART OF THE NATIONAL AIRWAYS
SYSTEM. IN ADDITION, THE PARTIES WOULD HAVE EXCLUDED FROM THE UNIT
CERTAIN JOB CLASSIFICATIONS ON THE BASIS THAT EMPLOYEES WERE
CONFIDENTIAL EMPLOYEES AND/OR MANAGEMENT OFFICIALS. THE PARTIES WERE IN
ESSENTIAL AGREEMENT ON THE SCOPE OF THE UNIT SOUGHT AND THE ELIGIBILITY
OF EMPLOYEES.
THE ASSISTANT SECRETARY FOUND THE RECORD WAS INADEQUATE TO MAKE A
DETERMINATION ON THE APPROPRIATENESS OF THE UNIT SOUGHT. IN THIS
CONNECTION, THE ASSISTANT SECRETARY NOTED THAT THE RECORD SHOWED THAT
THE UNIT SOUGHT IS ONE OF 19 SECTORS IN THE AIRWAY FACILITIES DIVISION
OF THE SOUTHWEST REGION OF THE FEDERAL AVIATION ADMINISTRATION, AND
THAT, ALTHOUGH THERE WAS SOME EVIDENCE REGARDING THE FUNCTIONS OF THE
EMPLOYEES IN THE UNIT SOUGHT, THE RECORD WAS UNCLEAR AND INCOMPLETE WITH
RESPECT TO AUTHORITY AND ULTIMATE RESPONSIBILITY AT VARIOUS MANAGEMENT
LEVELS IN MATTERS OF PERSONNEL AND LABOR RELATIONS. MOREOVER, HE NOTED
THE RECORD LACKED INFORMATION CONCERNING THE RELATIONSHIP OF THE AFS,
FORT WORTH TO OTHER SECTORS, THE DIVISION, AND THE REGION WITH RESPECT
TO SUCH MATTERS AS MISSION, EMPLOYEE JOB FUNCTIONS, AREAS OF
CONSIDERATION FOR PROMOTION OR REDUCTIONS IN FORCE, AND TRANSFER AND
INTERCHANGE. THE ASSISTANT SECRETARY NOTED THAT ON DECEMBER 7, 1972, HE
ANNOUNCED A CHANGE IN POLICY WITH RESPECT TO REPRESENTATION HEARINGS, IN
WHICH HE INDICATED THE CIRCUMSTANCES IN WHICH AREAS AND REGIONAL
ADMINISTRATORS MIGHT PROPERLY ACCEPT THE AGREEMENT OF THE PARTIES ON
UNIT AND ELIGIBILITY ISSUES, AND/OR WHEN HEARINGS SHOULD BE HELD; THAT
THE PARTIES IN THE INSTANT CASE HAD AGREED ON THE APPROPRIATENESS OF THE
CLAIMED UNIT; AND THAT ON REMAND THE PARTIES MIGHT BE ABLE TO PRESENT
EVIDENCE TO THE AREA AND REGIONAL ADMINISTRATORS INDICATING THE UNIT WAS
APPROPRIATE. ACCORDINGLY, HE REMANDED THE CASE TO THE APPROPRIATE
REGIONAL ADMINISTRATOR FOR THE PURPOSE OF EITHER (1) REOPENING THE
HEARING TO SECURE ADDITIONAL EVIDENCE ON THE APPROPRIATENESS OF THE
UNIT; OR (2) ON THE PRESENTATION OF SUFFICIENT SUPPORTING EVIDENCE ON
THE AGREEMENT OF THE PARTIES ON THE CLAIMED UNIT, HAVING THE AREA
ADMINISTRATOR APPROVE A CONSENT ELECTION AGREEMENT.
THE ASSISTANT SECRETARY NOTED ALSO THAT WHILE THE POLICY STATEMENT OF
DECEMBER 7, 1972, INDICATED THE AREA ADMINISTRATOR, IN THE ABSENCE OF
SIGNIFICANT QUESTIONS, MIGHT APPROVE AGREEMENTS OF THE PARTIES ON
MATTERS OF EMPLOYEE ELIGIBILITY, THE INSTANT CASE AROSE PRIOR TO THE
CHANGE OF POLICY AND THERE WAS RECORD EVIDENCE ON CERTAIN JOB
CLASSIFICATIONS ON WHICH THE PARTIES WERE IN AGREEMENT. ACCORDINGLY, HE
MADE FINDINGS ON ELIGIBILITY NOTWITHSTANDING THE AGREEMENT OF THE
PARTIES. IN THIS CONNECTION, HE CONCLUDED THE SECRETARY TO THE AFS,
FORT WORTH MANAGER, THE CLERK-STENOGRAPHERS AT CERTAIN FIELD OFFICES,
AND THE CLERICAL ASSISTANT AT THE ABILINE FIELD OFFICE, WERE ALL
CONFIDENTIAL EMPLOYEES AND SHOULD BE EXCLUDED FROM ANY UNIT FOUND
APPROPRIATE. IN ADDITION, THE ASSISTANT SECRETARY FOUND THAT THE
ENGINEERING TECHNICIAN IS A SUPERVISOR, AND THAT THE ADMINISTRATIVE
OFFICER, WHO THE PARTIES ALLEGED TO BE A MANAGEMENT OFFICIAL AND/OR A
CONFIDENTIAL EMPLOYEE, WAS, IN FACT, AN EMPLOYEE ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY AND SHOULD,
THEREFORE, BE EXCLUDED FROM ANY UNIT FOUND APPROPRIATE UNDER SECTION
10(B)(2) OF THE ORDER. HOWEVER, THE ASSISTANT SECRETARY DETERMINED THAT
THE TECHNICIANS-IN-DEPTH AND THE SUPPLY SPECIALIST WERE NOT MANAGEMENT
OFFICIALS, AND SHOULD BE INCLUDED IN ANY UNIT FOUND APPROPRIATE.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
AIRWAY FACILITIES SECTOR,
FORT WORTH, TEXAS /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 2606, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ROYCE E. SMITH.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL UNION 2606,AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A
UNIT OF ALL FULL-TIME OR PERMANENT GENERAL SCHEDULE AND WAGE BOARD
EMPLOYEES OF THE FORT WORTH AIRWAY FACILITIES SECTOR, EXCLUDING
EMPLOYEES CLASSIFIED AS CLERK-STENOGRAPHER, SECRETARY TO THE AIRWAY
FACILITIES SECTOR MANAGER, CLERICAL ASSISTANT, ADMINISTRATIVE OFFICER,
SUPPLY SPECIALIST AND TECHNICIAN-IN-DEPTH, MANAGEMENT OFFICIALS,
PROFESSIONALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL CAPACITY, GUARDS AND SUPERVISORS AS DEFINED IN THE
ORDER.
THE ACTIVITY AND THE AFGE WERE IN ESSENTIAL AGREEMENT AS TO THE
APPROPRIATENESS OF THE CLAIMED UNIT AND THE PROPOSED EXCLUSIONS.
THE UNIT
AS NOTED ABOVE, THE PROPOSED UNIT WOULD INCLUDE BOTH GENERAL SCHEDULE
(GS) AND WAGE BOARD (WB) EMPLOYEES OF THE AIRWAY FACILITIES SECTOR, FORT
WORTH, TEXAS, HEREINAFTER CALLED AFS, FORT WORTH. THE AFS, FORT WORTH
IS COMPRISED OF SEVERAL STAFF GROUPS, LOCATED AT MEACHAM FIELD, FORT
WORTH, TEXAS, AND SEVERAL SECTOR FIELD OFFICES RANGING FROM 20 TO 150
MILES FROM FORT WORTH. ITS MISSION IS TO MAINTAIN A PORTION OF THE
NATIONAL AIRWAYS SYSTEM AND TO MANAGE AVAILABLE RESOURCES. WHILE THERE
IS SOME RECORD EVIDENCE CONCERNING THE JOB FUNCTIONS OF THE EMPLOYEES OF
THE AFS, FORT WORTH, /2/ THE RECORD FAILS TO SHOW IN SUFFICIENT DETAIL
HOW THE AFS, FORT WORTH OPERATES IN RELATION TO THE OVERALL STRUCTURE OF
THE FEDERAL AVIATION ADMINISTRATION. THUS, ALTHOUGH THE RECORD REFLECTS
THAT THERE ARE OTHER SECTORS BESIDES THE AFS, FORT WORTH IN THE AIRWAY
FACILITIES DIVISION OF THE FEDERAL AVIATION ADMINISTRATION, /3/ IT
APPEARS THAT ALL OF THE SECTORS OF THE AIRWAY FACILITIES DIVISION OF THE
FEDERAL AVIATION ADMINISTRATION, /3/ IT APPEARS THAT ALL OF THE SECTORS
OF THE AIRWAY FACILITIES DIVISION, EXCEPT FOR THE AFS, FORT WORTH, ARE
AT ONE LOCATION; THAT MOST OF THE WORK PERFORMED BY OTHER SECTORS IS
"INSIDE" WORK AS OPPOSED TO THE FIELD WORK PERFORMED IN THE VARIOUS
FIELD OFFICES OF THE AFS, FORT WORTH; THAT THE CHAIN OF COMMAND FOR
EACH SECTOR RUNS DIRECTLY TO THE AIRWAY FACILITIES DIVISION CHIEF; AND
THAT THE AFS, FORT WORTH IS HEADED BY A MANAGER AND THE AFS, FORT WORTH
FIELD OFFICES ARE HEADED BY CHIEFS WHO, IN ADDITION TO BEING RESPONSIBLE
FOR MANAGEMENT OR EQUIPMENT AND FACILITIES IN THEIR JURISDICTION,
APPARENTLY HAVE SOME AUTHORITY WITH RESPECT TO HIRING, FIRING, AND OTHER
PERSONNEL FUNCTIONS, INCLUDING LABOR-MANAGEMENT RELATIONS MATTERS.
HOWEVER, THE RECORD IS UNCLEAR AND INCOMPLETE WITH RESPECT TO THE
AUTHORITY OF THE AFS, FORT WORTH FIELD OFFICE CHIEFS, AND TO THE
ULTIMATE RESPONSIBILITY OF THE AFS, FORT WORTH MANAGER, THE AIRWAY
FACILITIES DIVISION CHIEF, AND THE REGIONAL CHIEF IN MATTERS OF
PERSONNEL AND LABOR-MANAGEMENT RELATIONS. MOREOVER, THE RECORD DOES NOT
CONTAIN INFORMATION WITH RESPECT TO THE OTHER SECTORS OF THE AIRWAY
FACILITIES DIVISION WITH RESPECT TO THEIR MISSION; THE DIFFERENCES OR
SIMILARITIES IN THEIR JOB FUNCTIONS; THEIR RELATIONSHIP TO THE AFS,
FORT WORTH AND THE AIRWAY FACILITIES DIVISION AND THE REGION; WHETHER
THERE IS ANY OVERLAPPING OF SUPERVISION AMONG THE VARIOUS SECTORS AND OF
THE DIVISION; THE AREAS OF CONSIDERATION FOR PROMOTION OR REDUCTIONS IN
FORCE; AND WHETHER THERE HAS BEEN TRANSFER OR INTERCHANGE AMONG
EMPLOYEES OF THE SECTORS, THE DIVISION AND THE REGION. THUS, THE RECORD
FAILS TO REFLECT WHETHER THE CLAIMED EMPLOYEES, IN FACT, POSSESS A
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE
DIVISION AND/OR THE SOUTHWEST REGION.
ON DECEMBER 7, 1972, I ANNOUNCED A CHANGE OF POLICY WITH RESPECT TO
REPRESENTATION HEARINGS. /4/ IN THE POLICY STATEMENT, I INDICATED THOSE
CIRCUMSTANCES UNDER WHICH AREA AND REGIONAL ADMINISTRATORS MAY PROPERLY
ACCEPT AGREEMENTS OF THE PARTIES ON UNIT AND ELIGIBILITY ISSUES, AND/OR
THE CIRCUMSTANCES UNDER WHICH HEARINGS SHOULD BE ORDERED. I STATED,
AMONG OTHER THINGS:
A HEARING SHOULD BE HELD WHEN THE AREA OR REGIONAL ADMINISTRATOR
DETERMINES THAT HE HAS A
SIGNIFICANT QUESTION ABOUT THE UNIT OR EMPLOYEE ELIGIBILITY, THAT THE
AGREEMENT OF THE PARTIES
MAY BE VIOLATIVE OF THE ORDER OR THE POLICIES I HAVE ESTABLISHED, OR
THAT THE
PARTIES' AGREEMENT RAISED QUESTIONS OF POLICY WHICH I HAVE NOT
CONSIDERED.
ALTHOUGH, IN THE INSTANT CASE, THE PARTIES AGREE UPON THE
APPROPRIATENESS OF THE CLAIMED UNIT, I HAVE FOUND, AS INDICATED ABOVE,
INSUFFICIENT BASIS UPON WHICH TO DETERMINE THE APPROPRIATENESS OF THE
UNIT. HOWEVER, IT IS POSSIBLE THAT THE PARTIES, UPON REMAND OF THIS
PROCEEDING, MAY BE ABLE TO PRESENT TO THE AREA AND REGIONAL
ADMINISTRATORS EVIDENCE ON THE QUESTIONS I HAVE RAISED WHICH WILL
INDICATE THE UNIT MEETS ESTABLISHED CRITERIA ON UNITS APPROPRIATENESS.
ACCORDINGLY, I SHALL REMAND THE CASE TO THE APPROPRIATE REGIONAL
ADMINISTRATOR, WHO MAY EITHER (1) REOPEN THE HEARING FOR THE PURPOSE OF
SECURING ADDITIONAL EVIDENCE ON THE APPROPRIATENESS OF THE UNIT; OR (2)
UPON THE PRESENTATION OF SUFFICIENT SUPPORTING EVIDENCE ESTABLISHING
THAT THE AGREEMENT OF THE PARTIES ON THE CLAIMED UNIT IS NOT VIOLATIVE
OF THE ORDER OR POLICIES OF THE ASSISTANT SECRETARY AND DOES NOT RAISE A
QUESTION OF POLICY WHICH HAS NOT BEEN CONSIDERED, HAVE THE AREA
ADMINISTRATOR APPROVE A CONSENT ELECTION AGREEMENT.
ELIGIBILITY ISSUES
THE PARTIES AGREED THAT CLERK-STENOGRAPHERS, A CLERICAL ASSISTANT,
AND THE SECRETARY TO THE AIRWAY FACILITIES SECTOR MANAGER ARE
CONFIDENTIAL EMPLOYEES. THEY AGREED ALSO THAT THE ADMINISTRATIVE
OFFICER, THE TECHNICIANS-IN-DEPTH AND THE SUPPLY SPECIALIST SHOULD BE
EXCLUDED FROM THE UNIT FOUND APPROPRIATE AS MANAGEMENT OFFICIALS AND/OR
BECAUSE THEY ARE CONFIDENTIAL EMPLOYEES. IT WAS ASSERTED THAT THE
INTERESTS OF ALL OF THE ABOVE EMPLOYEES ARE MORE CLOSELY ALIGNED WITH
MANAGEMENT THAN WITH UNIT EMPLOYEES. IN ADDITION, THE PARTIES AGREED
THE ENGINEERING TECHNICIAN ON THE ENVIRONMENTAL SUPPORT STAFF IS A
SUPERVISOR AND SHOULD BE EXCLUDED FROM THE UNIT.
I HAVE INDICATED IN THE POLICY STATEMENT OF DECEMBER 7, 1972,
REFERRED TO ABOVE, THAT THE AREA ADMINISTRATOR MAY, IN THE ABSENCE OF
SIGNIFICANT QUESTIONS, APPROVE THE AGREEMENT OF THE PARTIES WITH RESPECT
TO MATTERS OF EMPLOYEE ELIGIBILITY. HOWEVER, BECAUSE THE INSTANT CASE
AROSE PRIOR TO ISSUANCE OF MY CHANGE IN POLICY, AND AS THERE IS RECORD
EVIDENCE ON THESE JOB CLASSIFICATIONS, I SHALL, NOTWITHSTANDING THE
AGREEMENT OF THE PARTIES, MAKE FINDINGS ON ELIGIBILITY IN ACCORDANCE
WITH THE EVIDENCE ADDUCED.
SECRETARY TO THE AIRWAY FACILITIES SECTOR MANAGER
THE RECORD REFLECTS THAT THIS EMPLOYEE IS CONSIDERED TO BE THE
PERSONAL SECRETARY OF THE AIRWAY FACILITIES SECTOR MANAGER. IN VIRGINIA
NATIONAL GUARD HEADQUARTERS, 4TH BATTALION, 111TH ARTILLERY, A/SLMR NO.
69, I STATED IT WOULD EFFECTUATE THE POLICIES OF THE ORDER IF EMPLOYEES
WHO ASSIST OR ACT IN A CONFIDENTIAL CAPACITY TO PERSONS WHO FORMULATE
AND EFFECTUATE MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS ARE
EXCLUDED FROM BARGAINING UNITS. THE PARTIES ARE IN AGREEMENT THAT THIS
EMPLOYEE MEETS THE CRITERIA FOR A CONFIDENTIAL EMPLOYEE, AND I FIND THE
RECORD SUPPORTS THIS AGREEMENT. ACCORDINGLY, I SHALL EXCLUDE THIS
EMPLOYEE CLASSIFICATION FROM ANY UNIT FOUND APPROPRIATE.
CLERK-STENOGRAPHERS; CLERICAL ASSISTANT
THE PARTIES AGREE THAT THE CLERK-STENOGRAPHERS WHO PERFORM CLERICAL,
ADMINISTRATIVE AND SECRETARIAL DUTIES FOR FIELD OFFICE CHIEFS, AND THAT
THE CLERICAL ASSISTANT, WHO PERFORMS SIMILAR DUTIES FOR THE MANAGER OF
THE ABILENE FIELD OFFICE, ARE CONFIDENTIAL EMPLOYEES. AS IN THE CASE OF
THE SECRETARY TO THE AIRWAY FACILITIES MANAGER, I FIND THAT THE RECORD
SUPPORTS THE AGREEMENT OF THE PARTIES AND I SHALL EXCLUDE THESE EMPLOYEE
CLASSIFICATIONS FROM ANY UNIT FOUND APPROPRIATE.
ADMINISTRATIVE OFFICER
THE PARTIES WOULD EXCLUDE FROM THE UNIT THE ADMINISTRATIVE OFFICER AS
A MANAGEMENT OFFICIAL AND/OR AS A CONFIDENTIAL EMPLOYEE. THE RECORD
REFLECTS THAT THIS EMPLOYEE, AMONG OTHER THINGS, IS THE POINT OF CONTACT
FOR THE AFS, FORT WORTH MANAGER AND THE EMPLOYEES ON SUCH MATTERS AS
PROMOTIONS, AWARDS, AND THE PROCESSING OF DISCIPLINARY ACTIONS.
FURTHER, HE PROVIDES ADVICE AND GUIDANCE ON PERSONNEL MATTERS TO THE
MANAGER AND TO CLERICAL EMPLOYEES IN THE FIELD OFFICES; IS THE LIAISON
BETWEEN THE ACTIVITY AND THE REGION'S MANPOWER DIVISION; AND IS IN
CONTROL OF PROMOTION LISTS AND CERTAIN CONFIDENTIAL PERSONNEL FILES. IN
MY VIEW, THE FOREGOING EVIDENCE DEMONSTRATES THAT THE ADMINISTRATIVE
OFFICER IS ENGAGED IN VARIOUS ASPECTS OF FEDERAL PERSONNEL WORK FOR THE
AFS, FORT WORTH. INASMUCH AS SECTION 10(B)(2) OF THE ORDER SPECIFICALLY
EXCLUDES SUCH EMPLOYEES FROM APPROPRIATE UNITS, I FIND THAT THE
ADMINISTRATIVE OFFICER SHOULD BE EXCLUDED FROM ANY UNIT FOUND
APPROPRIATE ON THE BASIS THAT HE IS ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY. /5/
TECHNICIANS-IN-DEPTH
THE TWO TECHNICIANS-IN-DEPTH (TID'S) EMPLOYED BY THE AFS, FORT WORTH
ARE ALLEGED TO BE MANAGEMENT OFFICIALS. THE RECORD REVEALS THAT THEY
PERFORM A STAFF FUNCTION, VISITING THE FIELD FACILITIES AND DIVIDING
THEIR TIME BETWEEN THE EVALUATION OF OPERATIONS AND THE MAINTENANCE OF
EQUIPMENT. THEIR EVALUATION OF OPERATIONS INCLUDES TRACING THE CAUSE OF
SUBSTANDARD PERFORMANCE, WHICH COULD INCLUDE PERSONNEL AS WELL AS
EQUIPMENT SHORTCOMINGS. HOWEVER, THE MAJOR PART OF THEIR TIME IS SPENT
EVALUATING EQUIPMENT OPERATION AS DISTINGUISHED FROM PERSONNEL
PERFORMANCE. THE RECORD INDICATES THAT SUCH EVALUATIONS ARE PERFORMED
WITHIN ESTABLISHED GUIDELINES AND THAT NATIONAL STANDARDS OF TOLERANCES,
AS SET FORTH IN HANDBOOKS, RATHER THAN INDEPENDENT JUDGMENT GUIDE THE
TID'S.
BASED ON THE EVIDENCE PRESENTED, I FIND THE TID'S DO NOT MEET THE
CRITERIA FOR EXCLUSION AS MANAGEMENT OFFICIALS SET FORTH IN DEPARTMENT
OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT CENTER, AIR FORCE
SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE, A/SLMR NO. 135.
IN THAT CASE, I FOUND THAT A "MANAGEMENT OFFICIAL" IS AN EMPLOYEE HAVING
AUTHORITY TO MAKE, OR EFFECTIVELY INFLUENCE THE MAKING OF, POLICY WITH
RESPECT TO PERSONNEL, PROCEDURES, OR PROGRAMS. IT WAS NOTED IN THAT
DECISION THAT IN DETERMINING WHETHER AN EMPLOYEE WAS A MANAGEMENT
OFFICIAL IT SHOULD BE ASCERTAINED WHETHER THE EMPLOYEE INVOLVED WAS AN
EXPERT OR PROFESSIONAL RENDERING RESOURCE INFORMATION OR
RECOMMENDATIONS, OR WHETHER HIS ROLE EXTENDED TO THE POINT OF ACTIVE
PARTICIPATION IN DECIDING WHAT THE POLICY WOULD BE. IN THE INSTANT
CASE, THE TID'S FUNCTION HAS NOT BEEN SHOWN TO EXTEND BEYOND THE ROLE OF
A RESOURCE PERSON TO THE POINT OF ACTIVE PARTICIPATION IN DECIDING
POLICY. NOR WAS IT SHOWN THAT THEIR INTERESTS ARE MORE CLOSELY ALIGNED
WITH MANAGEMENT THAN WITH OTHER EMPLOYEES IN THE UNIT SOUGHT. UNDER
THESE CIRCUMSTANCES, I FIND THAT THE TID'S SHOULD BE INCLUDED IN ANY
UNIT FOUND APPROPRIATE.
SUPPLY SPECIALIST
THE EVIDENCE ESTABLISHES THAT THE SUPPLY SPECIALIST IS RESPONSIBLE
FOR PERIODIC HOUSEKEEPING AND SAFETY INSPECTIONS, HAS AUTHORITY TO
PURCHASE AND DISPOSE OF SUPPLIES UP TO A LIMITED DOLLAR-AMOUNT, IS
RESPONSIBLE FOR INDEPENDENT CONTRACTING FOR MAINTENANCE AND, IN ADDITION
TO SAFETY INSPECTIONS, CONDUCTS SAFETY MEETINGS AND INSTRUCTS
TECHNICIANS IF HE OBSERVES MINOR SAFETY VIOLATIONS. ALSO, IT APPEARS
THAT ON ONE OCCASION THE SUPPLY SPECIALIST MADE A SUGGESTION TO HIGHER
MANAGEMENT WHICH WAS APPROVED REGARDING INVENTORY POLICY.
WITH THE EXCEPTION OF THE LAST ITEM NOTED ABOVE, THERE IS NO EVIDENCE
SUPPORTING THE CONCLUSION THAT THE SUPPLY SPECIALIST IS A MANAGEMENT
OFFICIAL WITHIN THE MEANING OF DEPARTMENT OF THE AIR FORCE, ARNOLD
ENGINEERING DEVELOPMENT CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR
FORCE STATION, TENNESSEE, CITED ABOVE. MOREOVER, IN MY VIEW, THE FACT
THAT ONE OF HIS SUGGESTIONS REGARDING INVENTORY POLICY ULTIMATELY WAS
ADOPTED BY THE ACTIVITY DOES NOT, STANDING ALONE, ESTABLISH THAT HE, IN
FACT, HAS AUTHORITY TO MAKE OR EFFECTIVELY INFLUENCE THE MAKING OF
POLICY, OR IS OTHER THAN AN EXPERT RENDERING RESOURCE INFORMATION OR
RECOMMENDATIONS WITH RESPECT TO THE POLICY IN QUESTION. ACCORDINGLY, I
FIND THAT THE SUPPLY SPECIALIST SHOULD BE INCLUDED IN ANY UNIT FOUND
APPROPRIATE.
ENGINEERING TECHNICIAN.
THE PARTIES AGREED THAT AN ENGINEERING TECHNICIAN ATTACHED TO THE
ENVIRONMENTAL SUPPORT STAFF OF THE AFS, FORT WORTH SHOULD BE EXCLUDED
FROM THE UNIT AS A SUPERVISOR. THE RECORD SHOWS THAT THIS EMPLOYEE, IN
FACT, DOES PERFORM SUPERVISORY DUTIES SUCH AS ASSIGNING WORK AND RATING
EMPLOYEE PERFORMANCE. AS THE RECORD SUPPORTS THE PARTIES' AGREEMENT
THAT THIS EMPLOYEE IS A SUPERVISOR WITHIN THE MEANING OF THE EXECUTIVE
ORDER, I FIND THAT HE SHOULD BE EXCLUDED FROM ANY UNIT FOUND
APPROPRIATE.
AS INDICATED ABOVE, I FIND THE RECORD IN THIS CASE DOES NOT PROVIDE
AN ADEQUATE BASIS ON WHICH TO DETERMINE THE APPROPRIATENESS OF THE UNIT
SOUGHT. THEREFORE, I SHALL REMAND THE SUBJECT CASE TO THE APPROPRIATE
REGIONAL ADMINISTRATOR FOR APPROPRIATE ACTION AS DETAILED ABOVE.
IT IS HEREBY ORDERED THAT THE SUBJECT CASE BE, AND IT HEREBY IS,
REMANDED TO THE APPROPRIATE REGIONAL ADMINISTRATOR.
DATED, WASHINGTON, D.C.
DECEMBER 18, 1972
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE RECORD REVEALS THAT SUPERVISORY ELECTRONIC TECHNICIANS AT
EACH FIELD OFFICE ARE RESPONSIBLE FOR DIRECT SUPERVISION OF THE
EMPLOYEES WITHIN THAT OFFICE AND DAY-TO-DAY MANAGEMENT OF THE FIELD
OFFICE. THEY REPORT TO THE AFS, FORT WORTH HEADQUARTERS, ARE IN REGULAR
TELEPHONE CONTACT WITH HEADQUARTERS, AND ATTEND MONTHLY STAFF MEETINGS.
THE AFS, FORT WORTH ELECTRONIC TECHNICIANS SPEND MUCH OF THEIR TIME OUT
OF THE OFFICE, ALTHOUGH THEY REPORT IN ON A DAILY BASIS. FURTHER,
EMPLOYEES WITHIN THE AFS, FORT WORTH CLASSIFIED AS TECHNICIANS-IN-DEPTH
REGULARLY VISIT THE FIELD OFFICES, INVESTIGATE OPERATIONS, AND MAKE
RECOMMENDATIONS BACK TO HEADQUARTERS.
/3/ THE EVIDENCE ESTABLISHES THAT THERE ARE 19 SECTORS, INCLUDING THE
AFS INVOLVED HEREIN, IN THE AIRWAY FACILITIES DIVISION OF THE SOUTHWEST
REGION OF THE FEDERAL AVIATION ADMINISTRATION.
/4/ SEE APPENDIX A, ATTACHED.
/5/ UNDER THESE CIRCUMSTANCES, I FIND IT UNNECESSARY TO PASS ON
WHETHER THE ADMINISTRATIVE OFFICER IS A MANAGEMENT OFFICIAL AND/OR A
CONFIDENTIAL EMPLOYEE.
A CHANGE IN POLICY CONCERNING THE SENDING OF REPRESENTATION CASES TO
HEARING UNDER EXECUTIVE ORDER 11491 WAS ANNOUNCED TODAY BY ASSISTANT
SECRETARY OF LABOR W. J. USERY, JR.
USERY STATED THE POLICY CHANGE AS FOLLOWS:
"HERETOFORE IT HAS BEEN MY POLICY TO NOT APPROVE CONSENT ELECTION
AGREEMENTS AND TO ORDER HEARINGS WHENEVER AN AREA ADMINISTRATOR
QUESTIONED THE APPROPRIATENESS OF THE UNIT SOUGHT OR THE ELIGIBILITY OF
CERTAIN EMPLOYEES, EITHER AS SUPERVISORS, MANAGEMENT OFFICIALS,
TEMPORARY EMPLOYEES, SEASONAL EMPLOYEES, PROBATIONARY EMPLOYEES,
OFF-DUTY MILITARY MOONLIGHTERS, OR AS PROFESSIONAL EMPLOYEES.
"FURTHER WHEN A HEARING WAS HELD BECAUSE OF A BASIC QUESTION ON ONE
POINT (FOR EXAMPLE-- APPROPRIATE UNIT), I REQUIRED A FULL AND COMPLETE
RECORD ON THE OTHER FACETS OF THE CASES, SUCH AS EMPLOYEE ELIGIBILITY
AND PROCEDURAL BARS, SO THAT MY DECISION WOULD BE BASED ON A FULL AND
COMPLETE FACTUAL RECORD. THIS REQUIREMENT EXISTED REGARDLESS OF WHETHER
THE AREA ADMINISTRATOR HAD ANY QUESTIONS ON ELIGIBILITY OR PROCEDURAL
BARS IN THE EXAMPLE CITED.
"IT WAS MY VIEW IN THAT IN ORDER TO EFFECTUATE PROPERLY MY ROLE UNDER
THE NEW LABOR-MANAGEMENT RELATIONS PROGRAM ESTABLISHED UNDER E.O. 11491,
IT WAS IMPERATIVE THAT ALL PARTIES WORKING UNDER THE ORDER UNDERSTAND
CLEARLY THE SUBSTANTIVE POLICIES WHICH WOULD BE APPLICABLE.
"AT THIS POINT IN TIME WE HAVE BEEN OPERATING UNDER E.O. 11491 FOR
ALMOST THREE YEARS. OVER 200 FORMAL DECISIONS HAVE BEEN ISSUED. THESE
DECISIONS RESOLVED MANY BASIC UNIT, EMPLOYEE ELIGIBILITY AND PROCEDURAL
BAR ISSUES. THEY PROVIDED DEFINITIONS FOR PROFESSIONAL EMPLOYEES AND FOR
MANAGEMENT OFFICIALS AS WELL AS POLICY DETERMINATIONS CONCERNING
CONFIDENTIAL EMPLOYEES, TEMPORARY EMPLOYEES, ETC.
"UNDER THESE CIRCUMSTANCES, IT IS MY BELIEF THAT THE PROGRAM NOW HAS
REACHED THE STAGE THAT I SHOULD CHANGE MY POLICIES ON HEARINGS.
ACCORDINGLY, I AM ESTABLISHING THE FOLLOWING PRINCIPLES TO GUIDE AREA
AND REGIONAL ADMINISTRATORS REGARDING WHETHER OR NOT A HEARING SHOULD BE
HELD AND, IF SO, WHAT ITS SCOPE SHOULD BE:
"1. A HEARING SHOULD BE HELD WHEN THE AREA OR REGIONAL ADMINISTRATOR
DETERMINES THAT HE HAS A SIGNIFICANT QUESTION ABOUT THE UNIT OR EMPLOYEE
ELIGIBILITY, THAT THE AGREEMENT OF THE PARTIES MAY BE VIOLATIVE OF THE
ORDER OR THE POLICIES I HAVE ESTABLISHED, OR THAT THE PARTIES' AGREEMENT
RAISED QUESTIONS OF POLICY WHICH I HAVE NOT CONSIDERED.
"2. IN REACHING A DECISION AS TO WHETHER AN EMPLOYEE ELIGIBILITY
QUESTION IS SIGNIFICANT AND THEREFORE REQUIRES A HEARING, DUE
CONSIDERATION SHOULD BE GIVEN TO THE NUMBER OF PERSONS INVOLVED RELATIVE
TO THE TOTAL NUMBER IN THE UNIT, THE FACT THAT CHALLENGED BALLOT
PROCEDURES AND CLARIFICATION OF UNIT PROCEDURES ARE AVAILABLE TO RESOLVE
THE ISSUE, AND THAT THE DELAY INHERENT IN SOLVING THE PROBLEM OF A SMALL
NUMBER OF EMPLOYEES AUTOMATICALLY DENIES FOR AN EXTENDED PERIOD OF TIME
A LARGER NUMBER THE OPPORTUNITY TO EXPRESS THEIR WISH AT THE BALLOT BOX.
"3. WHENEVER A HEARING IS HELD IT SHOULD BE CONFINED TO THE SPECIFIC
ISSUE(S) WHICH IS QUESTIONED BY THE AREA OR REGIONAL ADMINISTRATOR.
THUS, IF THE AREA OR REGIONAL ADMINISTRATOR HAS A SIGNIFICANT QUESTION
REGARDING THE UNIT, BUT HAS NONE ON EMPLOYEE ELIGIBILITY, THEN THE
HEARING WILL BE CONFINED TO THE UNIT MATTER. MY DECISION IN SUCH A
SITUATION WILL DEAL WITH THE UNIT QUESTION AND I SHALL ACCEPT THE
AGREEMENT OF THE PARTIES WITH RESPECT TO EMPLOYEE ELIGIBILITY AS
APPROVED BY THE AREA ADMINISTRATOR.
"THESE PRINCIPLES WILL BE FOLLOWED IN HEARINGS HELD AFTER THE RECEIPT
OF THIS INSTRUCTION."
2 A/SLMR 229; P. 610; CASE NO. 40-4186(RO); DECEMBER 18, 1972.
THIS CASE INVOLVES A REPRESENTATION PETITION FILED BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1719 (NFFE), FOR A UNIT OF THE
ACTIVITY'S REGIONAL HEADQUARTERS EMPLOYEES. THE ACTIVITY IS COMPOSED OF
THE REGIONAL HEADQUARTERS LOCATED IN ATLANTA, GEORGIA, AND FIELD OFFICES
LOCATED IN EIGHT SURROUNDING SOUTHEASTERN STATES. NFFE DID NOT SEEK TO
REPRESENT THE EMPLOYEES LOCATED IN THE FIELD OFFICES.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
PETITIONED FOR UNIT WAS NOT APPROPRIATE BASED ON THE VIEW THAT THE
ACTIVITY'S REGIONAL HEADQUARTERS EMPLOYEES DID NOT POSSESS A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND APART FROM OTHER
REGIONAL EMPLOYEES. IN REACHING THIS DETERMINATION, THE ASSISTANT
SECRETARY RELIED ON THE FACTS THAT THE EMPLOYEES IN BOTH THE
HEADQUARTERS AND FIELD OPERATIONS OF THE ACTIVITY HAD THE SAME OVERALL
SUPERVISION, ARE ENGAGED IN A COMMON OVERALL MISSION, ARE SUBJECT TO THE
SAME PERSONNEL POLICIES AND REGULATIONS, PERFORMED CLOSELY RELATED JOB
FUNCTIONS, AND THAT THERE HAD BEEN TRANSFERS AND INTERCHANGE OF CERTAIN
EMPLOYEES WITHIN THE REGION. IN THESE CIRCUMSTANCES, THE ASSISTANT
SECRETARY CONCLUDED THAT ESTABLISHMENT OF THE PETITIONED FOR UNIT WOULD
NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
IN REACHING HIS DECISION, THE ASSISTANT SECRETARY FOUND THAT THE FACT
THAT THE NFFE PREVIOUSLY REPRESENTED CERTAIN EMPLOYEES WHO HAD BEEN
COVERED BY A NEGOTIATED AGREEMENT BUT WHO WERE NOW PART OF THE
PETITIONED FOR UNIT WOULD NOT BAR THE PETITION IN THIS MATTER WHICH, IN
HIS VIEW, COVERED A NEWLY ESTABLISHED EMPLOYEE COMPLEMENT WORKING FOR A
NEW EMPLOYING ENTITY.
ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED.
UNITED STATES DEPARTMENT OF COMMERCE,
ECONOMIC DEVELOPMENT ADMINISTRATION,
SOUTHEASTERN REGIONAL OFFICE
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1719
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER JOHN L. BONNER.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
1719, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL EMPLOYEES
LOCATED IN THE HEADQUARTERS OF THE SOUTHEASTERN REGIONAL OFFICE OF THE
ECONOMIC DEVELOPMENT ADMINISTRATION, ATLANTA, GEORGIA, EXCLUDING THOSE
EMPLOYEES IN MANAGEMENT SUPPORT POSITIONS, SUPERVISORS, GUARDS AND
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY.
THE ACTIVITY CONTENDS THAT THE PROPOSED UNIT, WHICH DOES NOT INCLUDE
FIELD OFFICE EMPLOYEES OF THE SOUTHEASTERN REGION, IS INAPPROPRIATE
BECAUSE IT WOULD FRAGMENT AND DESTROY THE CLOSELY KNIT STRUCTURE OF THE
REGION AND, CONSEQUENTLY, WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF OPERATIONS.
BACKGROUND
IN JANUARY 1972, PURSUANT TO A REORGANIZATION, THE ACTIVITY
ELIMINATED TWO REGIONS HEADQUARTERED IN HUNTINGTON, WEST VIRGINIA
(FORMERLY CALLED THE MID-EASTERN REGION), AND HUNTSVILLE, ALABAMA
(FORMERLY CALLED THE SOUTHEASTERN REGION), AND ESTABLISHED A NEW REGION,
CALLED THE SOUTHEASTERN REGION, HEADQUARTERED IN ATLANTA, GEORGIA. THE
RECORD REVEALS THAT THESE ACTIONS BY THE ACTIVITY WERE PART OF A LARGER
NATIONAL REORGANIZATION ABOUT WHICH THE EMPLOYEES AT HUNTINGTON AND
HUNTSVILLE WERE NOTIFIED IN SEPTEMBER 1971.
AS A RESULT OF THE REORGANIZATION, THE HUNTINGTON, WEST VIRGINIA,
REGIONAL OFFICE BECAME A FIELD OFFICE OF THE ATLANTIC REGION,
HEADQUARTERED IN PHILADELPHIA, PENNSYLVANIA, AND THE HUNTSVILLE,
ALABAMA, REGIONAL OFFICE WAS ABOLISHED. OF THE EMPLOYEES FORMERLY
ASSIGNED TO THE HUNTINGTON REGIONAL OFFICE, APPROXIMATELY 30 WERE
ASSIGNED TO THE NEWLY ESTABLISHED SOUTHEASTERN REGION AND THE REMAINDER
WERE ASSIGNED EITHER TO OTHER REGIONS WITHIN THE ACTIVITY OR VOLUNTARILY
TERMINATED THEIR EMPLOYMENT WITH THE ACTIVITY. SIMILARLY, APPROXIMATELY
53 EMPLOYEES FORMERLY ASSIGNED TO THE HUNTSVILLE, ALABAMA, REGIONAL
OFFICE WERE REASSIGNED TO THE NEWLY ESTABLISHED SOUTHEASTERN REGION AND
THE REMAINING HUNTSVILLE EMPLOYEES WERE REASSIGNED TO OTHER REGIONS OF
THE ACTIVITY OR VOLUNTARILY TERMINATED THEIR EMPLOYMENT WITH THE
ACTIVITY.
PRIOR TO THE REORGANIZATION, THE NFFE WAS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES LOCATED AT THE HUNTINGTON, WEST
VIRGINIA, REGIONAL OFFICE. /1/ IT DID NOT, HOWEVER, REPRESENT THE FIELD
EMPLOYEES OF THAT OFFICE. THE NFFE AND THE ACTIVITY EXECUTED A
NEGOTIATED AGREEMENT COVERING THE EXCLUSIVELY RECOGNIZED UNIT ON OCTOBER
14, 1971. IN THIS CONNECTION, THE NFFE ASSERTED HEREIN THAT ITS PRIOR
CERTIFICATION AND NEGOTIATED AGREEMENT COVERING THE HUNTINGTON REGIONAL
OFFICE EMPLOYEES ARE STILL IN EFFECT AND SHOULD BE APPLICABLE TO THE
EMPLOYEES IN THE NEWLY ESTABLISHED ATLANTA REGIONAL OFFICE. /2/
ALTERNATIVELY, THE NFFE TOOK THE POSITION THAT ITS NEGOTIATED AGREEMENT
WITH THE ACTIVITY AT HUNTINGTON WOULD NOT CONSTITUTE A BAR TO AN
ELECTION IN THE UNIT SOUGHT IN THE SUBJECT CASE.
THE EVIDENCE HEREIN ESTABLISHES THAT THE SOUTHEASTERN REGION,
HEADQUARTERED IN ATLANTA, IS A NEW ENTITY COMPRISED OF AN AMALGAMATION
OF VARIOUS EMPLOYEES FROM AT LEAST TWO FORMER REGIONAL OFFICES,
INCLUDING THE HUNTINGTON REGIONAL OFFICE. THUS, WHILE SOME OF THE
EMPLOYEES OF THE NEWLY ESTABLISHED SOUTHEASTERN REGION HEADQUARTERS IN
ATLANTA WERE REPRESENTED PREVIOUSLY BY THE NFFE IN THE UNIT AT THE
HUNTINGTON REGIONAL OFFICE PRIOR TO THE REORGANIZATION AND WERE COVERED
BY A NEGOTIATED AGREEMENT, THE RECORD SHOWS CLEARLY THAT THE NEW ATLANTA
FACILITY DID NOT, IN EFFECT, CONSTITUTE A RELOCATION OF THE HUNTINGTON
REGIONAL OFFICE. /3/ UNDER THESE CIRCUMSTANCES, I FIND THAT THE
NEGOTIATED AGREEMENT BETWEEN THE NFFE AND THE ACTIVITY COVERING THE
HUNTINGTON EMPLOYEES WOULD NOT BAR THE PETITION IN THIS MATTER WHICH
COVERS THE EMPLOYEES OF THE ACTIVITY'S NEWLY ESTABLISHED REGIONAL OFFICE
IN ATLANTA, GEORGIA.
THE UNIT QUESTION
THE ECONOMIC DEVELOPMENT ADMINISTRATION, HEREIN CALLED THE AGENCY, IS
HEADQUARTERED IN WASHINGTON, D.C., AND HAS SIX SEPARATE REGIONAL OFFICES
ESTABLISHED ON A GEOGRAPHICAL BASIS, EACH UNDER A REGIONAL DIRECTOR.
THE PRINCIPAL MISSION OF THE AGENCY IS TO COORDINATE AND DIRECT ECONOMIC
DEVELOPMENT PLANNING ACTIVITIES RELATING TO REDEVELOPMENT AREAS AND
OTHER AREAS OF SUBSTANTIAL NEED. THE SOUTHEASTERN REGION ENCOMPASSES
EIGHT SOUTHEASTERN STATES AND EMPLOYS APPROXIMATELY 85 EMPLOYEES IN
ATLANTA, GEORGIA AND 11 FIELD OFFICES LOCATED THROUGHOUT THE REGION.
/4/
LOCATED IN THE ATLANTA HEADQUARTERS OF THE REGION ARE THE FOLLOWING
DIVISIONS OR STAFFS UNDER THE DIRECTION AND SUPERVISION OF A REGIONAL
DIRECTOR: ADMINISTRATIVE STAFF, EQUAL OPPORTUNITY STAFF, SPECIAL
PROGRAMS STAFF, REGIONAL COUNSEL, BUSINESS DEVELOPMENT DIVISION, PUBLIC
WORKS DIVISION, TECHNICAL SUPPORT DIVISION, AND PLANNING DIVISION. IN
THE 11 FIELD OFFICES ARE ECONOMIC DEVELOPMENT REPRESENTATIVES, HEREIN
CALLED EDR'S, CIVIL ENGINEERS /5/ AND CLERICALS.
THE EVIDENCE ESTABLISHES THAT THE REGIONAL DIRECTOR FOR THE
SOUTHEASTERN REGION IS RESPONSIBLE FOR THE DIRECTION AND SUPERVISION OF
ALL REGIONAL EMPLOYEES. DIRECTLY UNDER HIM ARE THE CHIEFS OF THE
VARIOUS STAFFS AND DIVISIONS AS SET FORTH ABOVE. BELOW THE CHIEFS ARE
VARIOUS SUPERVISORS WHO REPORT DIRECTLY TO THE STAFF OR DIVISION CHIEFS.
THE REGIONAL HEADQUARTERS CONTAINS THE FOLLOWING EMPLOYEE
CLASSIFICATIONS: ATTORNEY, INDUSTRIAL DEVELOPMENT OFFICER, FIELD
OPERATIONS OFFICER, MANPOWER DEVELOPMENT OFFICER, EQUAL OPPORTUNITY
SPECIALIST, PUBLIC WORKS SPECIALIST, FINANCIAL ANALYST, TECHNICAL
ASSISTANT, PROGRAM SPECIALIST, ECONOMIC DEVELOPMENT PLANNING SPECIALIST,
CIVIL ENGINEER, CONTRACT ADMINISTRATOR, ECONOMIC DEVELOPMENT
REPRESENTATIVE, SECRETARY, AND CLERICAL.
THE RECORD REVEALS THAT ALL EMPLOYEES OF THE SOUTHEASTERN REGION ARE
SUBJECT TO COMMON PERSONNEL POLICIES AND REGULATIONS, THAT ALL MAY BID
FOR POSITIONS ON AN ACTIVITY-WIDE BASIS AND THAT THERE IS NO VARIATION
IN THE QUALIFICATIONS FOR EMPLOYMENT OR THE WORK TO BE PERFORMED IN THE
RESPECTIVE JOB CLASSIFICATIONS THROUGHOUT THE REGION. FURTHER, THERE IS
EVIDENCE OF EMPLOYEE TRANSFERS BETWEEN HEADQUARTERS AND THE FIELD
OFFICES, AS WELL AS A CLOSE INTERRELATIONSHIP BETWEEN HEADQUARTERS AND
FIELD EMPLOYEES. IN THIS LATTER REGARD, THE RECORD REVEALS THAT THERE
ARE 14 EDR'S ASSIGNED TO THE VARIOUS FIELD OFFICES THROUGHOUT THE REGION
WHO REPORT DIRECTLY TO THE REGIONAL DIRECTOR WITH NO INTERVENING
SUPERVISION. FURTHER, EDR'S ARE IN FREQUENT CONTACT WITH REGIONAL
HEADQUARTERS AND ARE REQUIRED TO ATTEND PRE-APPLICATION CONFERENCES IN
ATLANTA WITH THE REGIONAL DIRECTOR AND OTHER STAFF MEMBERS FOR THE
PURPOSE OF REVIEWING AND CONSIDERING AGENCY LOANS. IT APPEARS ALSO THAT
THE JOB FUNCTIONS OF THE FIELD CLERICALS ARE CLOSELY RELATED TO THE JOB
FUNCTIONS OF HEADQUARTERS' CLERICAL PERSONNEL AND, IN THIS CONNECTION,
THE RECORD INDICATES THAT FIELD CLERICAL PERSONNEL HAVE BEEN BROUGHT
INTO HEADQUARTERS TO ASSIST ON INDIVIDUAL PROJECTS AND TO OBTAIN
SUPPLIES. MOREOVER, THE EVIDENCE ESTABLISHES THAT CIVIL ENGINEERS IN
THE TWO FIELD OFFICES NOTED ABOVE ARE UNDER THE SUPERVISION OF THE
CHIEF, TECHNICAL SUPPORT DIVISION AT THE ATLANTA HEADQUARTERS OFFICE AND
THAT THERE IS INTERCHANGE BETWEEN ENGINEERING EMPLOYEES LOCATED AT
HEADQUARTERS AND THOSE IN THE FIELD AS THEY PERFORM SIMILAR JOB
FUNCTIONS.
UNDER THESE CIRCUMSTANCES, AND NOTING THAT ALL OF THE REGIONAL
EMPLOYEES HAVE THE SAME OVERALL SUPERVISION, ARE ENGAGED IN A COMMON
OVERALL MISSION, ARE SUBJECT TO THE SAME PERSONNEL POLICIES AND
REGULATIONS, THAT THERE HAS BEEN TRANSFERS AND INTERCHANGE OF EMPLOYEES
WITHIN THE REGION, AND THAT MANY REGIONAL AND FIELD OFFICE EMPLOYEES
PERFORM CLOSELY RELATED JOB FUNCTIONS, I FIND THAT THE EMPLOYEES IN THE
PETITIONED FOR UNIT DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND APART FROM REGIONAL EMPLOYEES LOCATED IN THE FIELD
OFFICES. FURTHER, IN MY OPINION, THE ESTABLISHMENT OF A UNIT WHICH
INCLUDES SOME, BUT NOT ALL, EMPLOYEES WHO SHARE A COMMUNITY OF INTEREST
WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. ACCORDINGLY, I SHALL DISMISS THE PETITION HEREIN. /6/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 40-4186(RO) BE,
AND HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
DECEMBER 18, 1972
/1/ THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1858, WAS EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES AT THE ABOLISHED
HUNTSVILLE, ALABAMA, REGIONAL OFFICE.
/2/ IN VIEW OF MY DETERMINATION HEREIN, I FIND IT UNNECESSARY TO PASS
UPON THE QUESTIONS WHETHER, UNDER THE CIRCUMSTANCES, THE NFFE WAIVED ITS
NEGOTIATED AGREEMENT COVERING THE HUNTINGTON UNIT AND WHETHER THE
HEARING IN THIS MATTER SHOULD BE REOPENED IN ORDER TO ADDUCE EVIDENCE ON
THE WAIVER ISSUE, AS MOVED BY THE NFFE IN ITS BRIEF.
/3/ AS NOTED ABOVE, MANY OF THE HUNTINGTON EMPLOYEES WERE ASSIGNED TO
OTHER REGIONS OR VOLUNTARILY TERMINATED THEIR EMPLOYMENT.
/4/ THE FIELD OFFICES ARE LOCATED IN HINDMAN, KENTUCKY; LEXINGTON,
KENTUCKY; HOPKINSVILLE, KENTUCKY; NASHVILLE, TENNESSEE; ATHENS,
GEORGIA; ATLANTA, GEORGIA; MONTGOMERY, ALABAMA; JACKSON, MISSISSIPPI;
RALEIGH, NORTH CAROLINA; COLUMBIA, SOUTH CAROLINA; AND TALLAHASSEE,
FLORIDA.
/5/ ENGINEERS ARE LOCATED IN THE LEXINGTON, KENTUCKY AND JACKSON,
MISSISSIPPI FIELD OFFICES. THEY ARE RESPONSIBLE DIRECTLY TO THE CHIEF,
TECHNICAL SUPPORT DIVISION IN ATLANTA.
/6/ IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO
DECIDE WHETHER, AS CONTENDED BY THE NFFE, THE EDR'S ARE MANAGEMENT
OFFICIALS AND/OR SUPERVISORS WITHIN THE MEANING OF THE ORDER. NOR IS IT
NECESSARY TO DECIDE WHETHER CERTAIN CLASSIFICATIONS OF EMPLOYEES ARE
PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE ORDER.
ALTHOUGH THE NFFE INDICATED ITS INTEREST IN PROCEEDING TO AN ELECTION
IN ANY UNIT FOUND APPROPRIATE, I AM ADVISED ADMINISTRATIVELY THAT ITS
SHOWING OF INTEREST IS INSUFFICIENT IN VIEW OF THE INCLUSION OF FIELD
OFFICE PERSONNEL, EVEN ASSUMING THAT THE EDR'S WERE PROPERLY EXCLUDABLE
FROM THE UNIT SOUGHT.
2 A/SLMR 228; P. 605; CASE NOS. 50-8195, 50-8197; DECEMBER 18,
1972.
SAVANNA ARMY DEPOT, SAVANNA, ILLINOIS
AND
AMC AMMUNITION CENTER, SAVANNA, ILLINOIS
A/SLMR NO. 228
THE SUBJECT CASE INVOLVED REPRESENTATION PETITIONS FILED BY
GOVERNMENT EMPLOYEES ASSISTANCE COUNCIL, INCORPORATED, ALSO KNOWN AS
GOVERNMENT EMPLOYEES ASSISTANCE COUNCIL (GEAC). IN ONE PETITION, GEAC
SOUGHT A UNIT OF ALL GENERAL SCHEDULE (GS) AND WAGE BOARD (WB) EMPLOYEES
OF THE SAVANNA ARMY DEPOT (DEPOT); IN A SECOND PETITION, IT SOUGHT A
UNIT OF ALL GS AND WB EMPLOYEES OF THE AMC AMMUNITION CENTER (CENTER).
LOCAL R7-36, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) WHICH
IS THE EXCLUSIVELY RECOGNIZED REPRESENTATIVE OF CERTAIN UNITS AT THE
SAVANNA ARMY DEPOT, INTERVENED IN THE PROCEEDINGS.
THE ASSISTANT SECRETARY FOUND THAT THE GEAC PETITION OF FEBRUARY 1972
FOR EMPLOYEES OF THE DEPOT WAS BARRED BY A NEGOTIATED AGREEMENT SIGNED
BY THE DEPOT AND THE NAGE, LOCAL R7-36, ON SEPTEMBER 7, 1971. THE
NEGOTIATED AGREEMENT HAD BEEN APPROVED BY THE LOCAL BASE COMMANDER AND
FORWARDED TO HIGHER HEADQUARTERS FOR REVIEW, BUT WAS SUBSEQUENTLY
RECALLED BY THE PRESIDENT OF NAGE, LOCAL R7-36, FOR THE "SOLE REASON" OF
CONFORMING IT TO THE REQUIREMENTS OF THE RECENTLY AMENDED EXECUTIVE
ORDER 11491. IN CONCLUDING THAT THE PETITION WAS BARRED, THE ASSISTANT
SECRETARY TOOK NOTE OF THE STUDY COMMITTEE'S REPORT AND RECOMMENDATIONS,
AND SECTION 15 OF THE ORDER WHICH STATE, IN EFFECT, THAT APPROVAL OF
AGREEMENTS BY HIGHER MANAGEMENT LEVELS SHALL BE LIMITED TO THEIR
CONFORMITY WITH LAWS AND REGULATIONS. THUS, AT THE TIME THE AGREEMENT
WAS EXECUTED ON SEPTEMBER 7, 1971, IT CONSTITUTED A BAR TO THE PETITION
FILED FIVE MONTHS LATER, AND ALSO, THE AGREEMENT BAR CONTINUED TO EXIST
EVEN AFTER RECALL OF THE AGREEMENT FOR THE "SOLE PURPOSE" OF CONFORMING
IT TO THE REQUIREMENTS OF THE ORDER, AS AMENDED, AS THE RECALL WAS NOT
FOR THE PURPOSE OF RESCINDING OR RENEGOTIATING THE AGREEMENT.
ACCORDINGLY, HE DISMISSED THE PETITION IN THIS CASE.
THE ASSISTANT SECRETARY FOUND THAT THERE WAS INSUFFICIENT EVIDENCE
RECEIVED DURING THE HEARING UPON WHICH A DETERMINATION COULD BE MADE ON
THE APPROPRIATENESS OF THE UNIT SOUGHT AT THE CENTER, OR TO THE EXTENT
EMPLOYEES IN THE CENTER WERE COVERED BY THE NEGOTIATED AGREEMENT OF
SEPTEMBER 1971. IN REACHING HIS DECISION, THE ASSISTANT SECRETARY NOTED
THAT PRIOR TO THE REORGANIZATION OF JULY 1971, WHICH RESULTED IN THE
ESTABLISHMENT OF THE CENTER AS A SEPARATE COMMAND ENTITY, THE CENTER WAS
PART OF THE DEPOT AND ITS MISSION AND FUNCTIONS HAD BEEN CARRIED OUT BY
THE DEPOT, AND PERFORMED BY THE SAME EMPLOYEES WHO ARE PRESENTLY
PERFORMING THESE FUNCTIONS. ALSO, WHILE SOME LIMITED EVIDENCE WAS
PRESENTED IN REGARD TO EMPLOYEES CLASSIFIED AS AMMUNITION SURVEILLANCE
PERSONNEL, NO EVIDENCE WAS PRESENTED AS TO OTHER EMPLOYEES OF THE
CENTER, THEIR DUTIES, JOBS OR CLASSIFICATIONS. ADDITIONALLY, HE NOTED
THAT THE EVIDENCE WAS INSUFFICIENT AS TO THE STATUS OF OTHER TENANTS OF
THE ACTIVITY, AS WELL AS ANY POSSIBLE COMMUNITY OF INTEREST AMONG ANY OR
ALL OF THE EMPLOYEES INVOLVED.
ACCORDINGLY, THE ASSISTANT SECRETARY REMANDED THE PETITION RELATING
TO THE CENTER TO THE APPROPRIATE REGIONAL ADMINISTRATOR FOR FUTURE
HEARING.
SAVANNA ARMY DEPOT,
SAVANNA, ILLINOIS
AND
GOVERNMENT EMPLOYEES ASSISTANCE
COUNCIL, INCORPORATED, ALSO KNOWN
AS GOVERNMENT EMPLOYEES ASSISTANCE
COUNCIL /1/
AND
LOCAL R7-36, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
AMC AMMUNITION CENTER,
SAVANNA, ILLINOIS
AND
GOVERNMENT EMPLOYEES ASSISTANCE
COUNCIL,INCORPORATED, ALSO KNOWN
AS GOVERNMENT EMPLOYEES
ASSISTANCE COUNCIL
AND
LOCAL R7-36, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
UPON PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, AS
AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER ELMER R.
SIMS. EXCEPT AS MODIFIED HEREIN, THE HEARING OFFICER'S RULINGS MADE AT
THE HEARING ARE HEREBY AFFIRMED. /2/
UPON THE ENTIRE RECORD IN THESE CASES, /3/ THE ASSISTANT SECRETARY
FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITIES.
2. IN CASE NO. 50-8195, THE PETITIONER, GOVERNMENT EMPLOYEES
ASSISTANCE COUNCIL, INCORPORATED, ALSO KNOWN AS GOVERNMENT EMPLOYEES
ASSISTANCE COUNCIL, HEREIN CALLED GEAC, SEEKS AN ELECTION IN THE
FOLLOWING UNIT:
ALL NONSUPERVISORY WAGE BOARD (WB) EMPLOYEES OF SAVANNA ARMY DEPOT,
ALL NONSUPERVISORY
EMPLOYEES IN THE FIRE PROTECTION AND PREVENTION BRANCH, AND ALL
NONPROFESSIONAL AND
NONSUPERVISORY CLASS ACT (GS) EMPLOYEES OF SAVANNA ARMY DEPOT,
EXCLUDING ALL CLASSIFICATION
ACT AMMUNITION INSPECTOR SURVEILLANCE PERSONNEL AND TRAINEES, AND ALL
MANAGEMENT OFFICIALS,
SUPERVISORS, GUARDS, AND/OR THOSE PERSONNEL EXCLUDED BY SECTION
10(B), 1, 2, 3, AND 4 OF
EXECUTIVE ORDER 11491 AS AMENDED BY EXECUTIVE ORDER 11616. /4/
IN CASE NO. 50-8197, THE GEAC SEEKS AN ELECTION IN THE FOLLOWING
UNIT:
ALL NONSUPERVISORY AND NONPROFESSIONAL CLASS ACT (GS) AND WAGE GRADE
(WB) EMPLOYEES OF THE
U.S. ARMY MATERIEL COMMAND CENTER, SAVANNA, ILLINOIS, EXCLUDING ALL
AMMUNITION INSPECTOR
SURVEILLANCE PERSONNEL AND TRAINEES, AND ALL MANAGEMENT OFFICIALS,
SUPERVISORS, GUARDS, AND
THOSE PERSONNEL EXCLUDED BY SECTION 10(B), 1, 2, 3, AND 4 OF
EXECUTIVE ORDER 11491 AS AMENDED
BY EXECUTIVE ORDER 11616.
THE GEAC TOOK THE ALTERNATIVE POSITION THAT IT WOULD REPRESENT
EMPLOYEES IN ANY UNIT FOUND APPROPRIATE. THE ACTIVITY AGREED THAT THE
UNITS REQUESTED BY THE GEAC WERE APPROPRIATE. THE NAGE, WHILE TAKING
THE POSITION THAT THERE WAS AN AGREEMENT BAR WITH RESPECT TO THE
PETITION IN CASE NO. 50-8195, TOOK NO POSITION AS TO THE UNIT IN CASE
NO. 50-8197 BASED ON THE VIEW THAT IT WAS UNAWARE OF ANY INTERRELATION
OF FUNCTIONS OF THE EMPLOYEES OF THE AMC (ARMY MATERIEL COMMAND)
AMMUNITION CENTER, HEREIN CALLED THE CENTER, AND SAVANNA ARMY DEPOT,
HEREIN CALLED THE DEPOT.
THE EVIDENCE DISCLOSES THAT THE DEPOT, IN ADDITION TO ITS OWN
EMPLOYEES, PROVIDES THE PHYSICAL FACILITIES REQUIRED FOR ITS THREE
TENANTS, THE CENTER, THE 259TH ORD DET (ED), AND THE U.S. ARMY HEALTH
CLINIC; AND CERTAIN PERSONNEL SERVICES FOR THE CENTER.
THE NAGE HAS BEEN THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR
SUBSTANTIALLY ALL OF THE EMPLOYEES OF WHAT WAS, PRIOR TO A
REORGANIZATION, KNOWN AS THE SAVANNA ARMY DEPOT. THUS, IN MARCH 1968,
THE NAGE WAS GRANTED EXCLUSIVE RECOGNITION IN TWO SEPARATE UNITS; ALL
FIREFIGHTERS AND ALL WB EMPLOYEES. IN MARCH 1968, IT WAS GRANTED
EXCLUSIVE RECOGNITION FOR A UNIT OF ALL NONSUPERVISORY EMPLOYEES OF THE
PROVOST MARSHAL DIVISION (GUARDS), AND IN SEPTEMBER 1970, IT WAS
CERTIFIED AS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT OF ALL
NONSUPERVISORY, NONPROFESSIONAL GS EMPLOYEES OF THE DEPOT. IN JANUARY
1969, A NEGOTIATED AGREEMENT WITH A TWO-YEAR TERM WAS EXECUTED COVERING
THE FIREFIGHTERS AND WB EMPLOYEES. IN JULY 1971, THE HEADQUARTERS AMC
INITIATED A REORGANIZATION WHICH RESULTED IN THE ESTABLISHMENT OF THE
CENTER AS A SEPARATE COMMAND ENTITY FROM THE DEPOT, UTILIZING EMPLOYEES
PREVIOUSLY ASSIGNED TO THE DEPOT. /5/ AT THE SAME TIME, THE NAGE WAS
ADVISED BY MANAGEMENT THAT THE EMPLOYEES OF THE CENTER WERE NOT IN ANY
UNIT AND THAT ALL OF THE AMMUNITION SURVEILLANCE PERSONNEL OF THE NEWLY
FORMED CENTER WERE A PART OF MANAGEMENT. ACCORDINGLY, THE DEPOT CEASED
THE DUES DEDUCTIONS FOR THOSE EMPLOYEES ASSIGNED TO THE CENTER. IN
AUGUST 1971, THE NAGE AND THE DEPOT NEGOTIATED A MULTI-UNIT AGREEMENT
COVERING THE NAGE'S FOUR UNITS AT THE DEPOT. THE AGREEMENT WAS SIGNED
ON SEPTEMBER 7, 1971. AS IN THE PREVIOUS NEGOTIATED AGREEMENT, THE
ACTIVITY WAS IDENTIFIED AS SAVANNA ARMY DEPOT.
AFTER BEING APPROVED BY THE DEPOT'S COMMANDING OFFICER, THE
NEGOTIATED AGREEMENT OF SEPTEMBER 7, 1971, WAS FORWARDED ON SEPTEMBER
13, 1971, TO HEADQUARTERS AMC FOR REVIEW. THE EVIDENCE REVEALS THAT,
THEREAFTER, ON OCTOBER 5,1971, PURSUANT TO A REQUEST BY THE PRESIDENT OF
NAGE LOCAL R7-36, HEADQUARTERS AMC RETURNED THE AGREEMENT TO THE LOCAL.
NEITHER HEADQUARTERS AMC NOR THE DEPOT WAS ADVISED AS TO THE REASON, IF
ANY, FOR THE NAGE'S REQUEST FOR RECALL OF THE AGREEMENT. THE EVIDENCE
ESTABLISHES THAT NO REQUESTS FOR NEGOTIATIONS WERE MADE BY EITHER PARTY
SUBSEQUENT TO THE RECALL OF THE NEGOTIATED AGREEMENT AND NO NEGOTIATION
SESSIONS HAVE TAKEN PLACE. SUBSEQUENTLY, ON FEBRUARY 17, 1972, THE
INSTANT PETITIONS WERE FILED.
THE TIMELINESS QUESTION, CASE NO. 50-8195
THE NATIONAL PRESIDENT OF THE GEAC, WHO IS ALSO THE PRESIDENT OF
LOCAL NO. 2, GEAC, WAS THE PRESIDENT OF THE NAGE LOCAL INVOLVED HEREIN
AT THE TIME THE AGREEMENT WAS NEGOTIATED AND EXECUTED ON SEPTEMBER 7,
1971, AND ALSO AT THE TIME THE AGREEMENT WAS RECALLED. IN THIS
PROCEEDING, HE TESTIFIED THAT SUBSEQUENT TO THE SIGNING OF THE AGREEMENT
ON SEPTEMBER 7, 1971, HE RECEIVED COPIES OF THE RECENT AMENDMENTS TO
EXECUTIVE ORDER 11491 AND THAT BECAUSE OF THE CHANGES PRECIPITATED BY
THE AMENDMENTS, IT WAS DECIDED TO RECALL THE NEGOTIATED AGREEMENT IN
ORDER TO CONFORM IT TO THE REQUIREMENTS OF THE AMENDED ORDER. HE
TESTIFIED FURTHER THAT THE RECALL OF THE AGREEMENT WAS FOR THE "SOLE
REASON" OF CONFORMING THE AGREEMENT TO THE AMENDED ORDER.
SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S REGULATIONS, WHICH WAS
IN EFFECT AT THE TIME THE NEGOTIATED AGREEMENT WAS EXECUTED BY THE DEPOT
AND THE BAGE, PROVIDED, IN PART, THAT A PETITION FOR EXCLUSIVE
RECOGNITION WOULD NOT BE CONSIDERED TIMELY IF FILED DURING THE PERIOD
WITHIN WHICH A NEGOTIATED AGREEMENT WAS "AWAITING APPROVAL AT A HIGHER
MANAGEMENT LEVEL . . . " IN THIS CONNECTION, THE STUDY COMMITTEE IN ITS
REPORT AND RECOMMENDATIONS INDICATED THAT APPROVAL OR DISAPPROVAL OF A
NEGOTIATED AGREEMENT (AT A HIGHER MANAGEMENT LEVEL) SHOULD BE BASED
SOLELY UPON THE AGREEMENT'S CONFORMITY WITH LAWS AND REGULATIONS.
FURTHER, SECTION 15 OF THE ORDER PROVIDES, IN PART, THAT AN AGREEMENT
"SHALL BE APPROVED IF IT CONFORMS TO APPLICABLE LAWS, EXISTING PUBLISHED
AGENCY POLICIES AND REGULATIONS . . . AND REGULATIONS OF OTHER
APPROPRIATE AUTHORITIES." IT APPEARS CLEAR FROM THE FOREGOING THAT THE
ORDER CONTEMPLATES THAT REVIEW AT HIGHER AGENCY LEVELS BE CIRCUMSCRIBED
AND LIMITED TO WHETHER THE NEGOTIATED AGREEMENT IN QUESTION CONFORMS TO
THOSE MATTERS SET FORTH IN SECTION 15 OF THE ORDER. /6/ APPLYING THIS
PRINCIPLE TO THE INSTANT CASE, AT THE TIME THE AGREEMENT WAS EXECUTED ON
SEPTEMBER 7, 1971, BY THE DEPOT AND THE NAGE AT THE LOCAL LEVEL, I FIND
THAT IT CONSTITUTED A BAR TO A PETITION FILED APPROXIMATELY FIVE MONTHS
LATER FOR EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNITS COVERED BY THE
AGREEMENT, EVEN THOUGH SUCH AGREEMENT WAS SUBJECT TO APPROVAL AT THE
AGENCY LEVEL. I FIND ALSO THAT THE AGREEMENT BAR HEREIN CONTINUED TO
EXIST EVEN AFTER RECALL FOR THE PURPOSE OF CONFORMING THE AGREEMENT TO
THE REQUIREMENTS OF THE ORDER, AS AMENDED, SO LONG AS THE LOCALLY
APPROVED AGREEMENT WAS NOT, IN EFFECT, RESCINDED AND REOPENED FOR THE
PURPOSE OF RENEGOTIATIONS. IN THE INSTANT SITUATION, WHEN THE NAGE
LOCAL OFFICIAL ASKED FOR THE RETURN OF THE AGREEMENT FOR THE "SOLE
REASON" OF CONFORMING IT TO THE PROVISIONS OF THE AMENDED ORDER, IN MY
VIEW HE WAS NOT, IN EFFECT, SEEKING TO RESCIND THE AGREEMENT AND REOPEN
IT FOR RENEGOTIATIONS BUT RATHER HE MERELY WAS SEEKING TO ASSURE THAT
THE AGREEMENT MET ALL OF THE REQUIREMENTS OF THE AMENDED ORDER. /7/
UNDER THESE CIRCUMSTANCES, I FIND THAT THE NEGOTIATED AGREEMENT EXECUTED
ON SEPTEMBER 7, 1971, CONSTITUTED A BAR TO THE PETITION FILED IN CASE
NO. 50-8195. /8/
ACCORDINGLY, I SHALL DISMISS THE PETITION IN CASE NO. 50-8195.
THE UNIT QUESTION, CASE NO. 50-8197
AS DESCRIBED ABOVE, IN JULY 1971, HEADQUARTERS AMC ESTABLISHED THE
CENTER AS AN ENTITY SEPARATE FROM THE DEPOT. THE RECORD REVEALS THAT
THE CENTER IS DIRECTED BY A CIVILIAN WHO REPORTS DIRECTLY TO
HEADQUARTERS AMC, AS DOES THE DEPOT BASE COMMANDER. THE RECORD APPEARS
TO INDICATE THAT THE CHANGE AMOUNTED TO A "PAPER CHANGE" SINCE THE
MISSIONS OF THE COMPONENT ORGANIZATIONS INVOLVED DID NOT CHANGE AND THE
DUTIES AND FUNCTIONS OF THE EMPLOYEES INVOLVED WERE UNAFFECTED. IN THIS
REGARD, PRIOR TO JULY 1971, THE MISSION OF THE CENTER WAS ENCOMPASSED
WITHIN THE ORGANIZATIONAL STRUCTURE OF THE DEPOT. SUBSEQUENT TO JULY
1971, IT APPEARS THAT THE WORK OF THE CENTER IS BEING PERFORMED BY THE
INDIVIDUALS WHO PERFORMED THESE SAME FUNCTIONS BEFORE THE
REORGANIZATION. ADDITIONALLY, THE DEPOT PERSONNEL OFFICE SERVES
EMPLOYEES OF BOTH THE DEPOT AND THE CENTER, ALTHOUGH SUCH SERVICES NOW
ARE PAID FOR BY THE CENTER, WHICH IS A TENANT ORGANIZATION, ON A
CONTRACTUAL BASIS. THE EVIDENCE REVEALS FURTHER THAT FOR PURPOSES OF
REDUCTIONS IN FORCE, THE DEPOT AND CENTER ARE TREATED AS TWO SEPARATE
COMPETITIVE AREAS.
THE EVIDENCE ESTABLISHES THAT THE CENTER IS COMPOSED OF FIVE SEPARATE
ORGANIZATIONAL ENTITIES: AMMUNITION SCHOOL, CIVILIAN CAREER MANAGEMENT
OFFICE, LOGISTICS ENGINEERING OFFICE, ADVISORS OFFICE, AND PROGRAM AND
CONTROL OFFICE. ALTHOUGH LIMITED TESTIMONY WAS PRESENTED AS TO THE
AMMUNITION SCHOOL, /9/ NO EVIDENCE WAS PRESENTED AS TO THE NUMBER,
CLASSIFICATIONS, DUTIES, OR FUNCTIONS OF ANY OF THE EMPLOYEES IN THE
REMAINING DIVISIONS OR SECTIONS OF THE CENTER. FURTHER, ALTHOUGH THERE
WAS LIMITED TESTIMONY AS TO THE LOCATION OF THE CENTER EMPLOYEES,
TRANSFER AND INTERCHANGE WITH DEPOT EMPLOYEES, AND POSSIBLE CONTACT
BETWEEN EMPLOYEES OF THE TWO ORGANIZATIONS, THE RECORD IS UNCLEAR AS TO
WHETHER ALL OR ANY OF THE EMPLOYEES OF THE CENTER REMAIN, IN FACT,
WITHIN THE SCOPE OF THE EXISTING EXCLUSIVELY RECOGNIZED UNITS AND ARE,
THUS, COVERED BY THE NEGOTIATED AGREEMENT BETWEEN THE DEPOT AND THE
NAGE. /10/ MOREOVER, IF THE EMPLOYEES OF THE CENTER ARE NOT ENCOMPASSED
WITHIN THE EXISTING RECOGNITIONS AND THE NEGOTIATED AGREEMENT OF
SEPTEMBER 7, 1971, BECAUSE THERE IS A LIMITED RECORD WITH RESPECT TO
EMPLOYEES OF THE CENTER AND A LACK OF EVIDENCE WITH RESPECT TO THE OTHER
TENANTS LOCATED AT THE SAVANNA ARMY DEPOT, I AM UNABLE TO DETERMINE
WHETHER THE EMPLOYEES OF THE CENTER SHARE A COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM OTHER UNREPRESENTED EMPLOYEES LOCATED AT THE
SAVANNA ARMY DEPOT (SUCH AS THOSE IN THE TENANT ORGANIZATIONS). THUS,
THERE IS NO EVIDENCE IN THE RECORD AS TO NUMBER OF CLASSIFICATIONS OF
EMPLOYEES OF THE OTHER TENANTS, AND THEIR RELATIONSHIP, IF ANY, TO THE
EMPLOYEES OF THE CENTER.
IN SUM, THE RECORD DOES NOT PROVIDE, AMONG OTHER THINGS, AN ADEQUATE
BASIS UPON WHICH TO DETERMINE THE APPROPRIATENESS OF THE UNIT BEING
SOUGHT IN CASE NO. 50-8197. ACCORDINGLY, I SHALL REMAND THE PETITION
IN CASE NO. 50-8197 TO THE APPROPRIATE REGIONAL ADMINISTRATOR FOR THE
PURPOSE OF REOPENING THE RECORD IN ORDER TO SECURE ADDITIONAL EVIDENCE
AS DETAILED ABOVE. /11/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 50-8195 BE, AND IT
HEREBY IS, DISMISSED.
IT IS FURTHER ORDERED THAT CASE NO. 50-8197 BE, AND HEREBY IS,
REMANDED TO THE APPROPRIATE REGIONAL ADMINISTRATOR.
DATED, WASHINGTON, D.C.
DECEMBER 18, 1972
/1/ THE NAME OF THE PETITIONER IN BOTH OF THE SUBJECT CASES APPEARS
AS CORRECTED AT THE HEARING.
/2/ AS DISCUSSED BELOW, AT THE HEARING THE HEARING OFFICER MADE
CERTAIN RULINGS, WHICH I FIND TO BE IN ERROR, WITH RESPECT TO A REQUEST
FOR APPEARANCE OF WITNESSES AND PRODUCTION OF DOCUMENTS BY A
REPRESENTATIVE OF THE INTERVENOR, LOCAL R7-36, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, HEREIN CALLED NAGE, AND ALSO WITH RESPECT TO THE
CROSS-EXAMINATION OF WITNESSES.
IN ADDITION, THE HEARING OFFICER, OVER OBJECTIONS BY THE NAGE,
ATTEMPTED TO ADDUCE TESTIMONY FROM A WITNESS REGARDING A PENDING
INVESTIGATION CONCERNING A LABOR ORGANIZATION'S STANDARDS OF CONDUCT.
THE HEARING IN THE INSTANT CASES WAS FOR THE PURPOSE OF RESOLVING THE
ISSUES AS TO THE APPROPRIATENESS OF THE CLAIMED UNITS AND RELATED
MATTERS AND WAS NOT FOR THE PURPOSE OF ELICITING INFORMATION RELATING TO
A LABOR ORGANIZATION'S STANDARDS OF CONDUCT. EVIDENCE INVOLVING
STANDARDS OF CONDUCT SHOULD NOT BE ADDUCED IN A PROCEEDING UNDER SECTION
202 OF THE ASSISTANT SECRETARY'S REGULATIONS, BUT RATHER, SHOULD BE
OBTAINED IN ACCORDANCE WITH SECTION 204 OF THE REGULATIONS. IN THIS
REGARD, SEE REPORT ON A DECISION OF THE ASSISTANT SECRETARY, REPORT NO.
9. IN THESE CIRCUMSTANCES, I FIND THAT THE HEARING OFFICER ERRED IN
SEEKING TO OBTAIN INFORMATION ON ALLEGED VIOLATIONS OF THE STANDARDS OF
CONDUCT IN THIS PROCEEDING, AND I HAVE GIVEN NO CONSIDERATION TO SUCH
INFORMATION AS WAS ELICITED BY THE HEARING OFFICER'S EXAMINATION.
/3/ THE NAGE FILED A MOTION FOR REMAND FOR FURTHER PROCEEDINGS. FOR
THE REASONS STATED BELOW, I SHALL GRANT THE MOTION, IN PART, AND REMAND
CASE NO. 50-8197 FOR THE PURPOSE OF OBTAINING CERTAIN ADDITIONAL
EVIDENCE.
/4/ THE UNIT AS PETITIONED FOR ORIGINALLY EXCLUDED ALL (BOTH GS AND
WB) AMMUNITION INSPECTOR SURVEILLANCE PERSONNEL AND TRAINEES. AS
AMENDED, THE UNIT WOULD EXCLUDE ONLY GS EMPLOYEES IN THESE
CLASSIFICATIONS AND WOULD INCLUDE THE WB EMPLOYEES IN THESE
CLASSIFICATIONS IN THE CLAIMED UNIT. THE HEARING OFFICER DID NOT RULE ON
THE NAGE'S REQUEST FOR A RECHECK OF THE SHOWING OF INTEREST IN VIEW OF
THE ADDITION OF THE WB EMPLOYEES TO THE REQUESTED UNIT. IN VIEW OF MY
DISPOSITION OF THE PETITION IN CASE NO. 50-8195, I FIND IT UNNECESSARY
TO RULE ON THE NAGE'S REQUEST.
/5/ ALTHOUGH CERTAIN EMPLOYEES OF THE DEPOT WERE ASSIGNED TO THE
CENTER, NONE OF THE PARTIES HEREIN CONTENDED THAT THE UNITS REMAINING AT
THE DEPOT WERE NO LONGER VIABLE AND IDENTIFIABLE.
/6/ CF. FEDERAL AVIATION ADMINISTRATION, JACKSONVILLE AIR ROUTE
TRAFFIC CONTROL CENTER AND FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
ASSOCIATION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-20,
A/SLMR NO. 194.
/7/ COMPARE U.S. ARMY ENGINEER DISTRICT, PHILADELPHIA, CORPS OF
ENGINEERS, A/SLMR NO.80.
/8/ IT SHOULD BE NOTED ALSO THAT THE RECORD INDICATES THAT THE NAGE
AND THE ACTIVITY CONSOLIDATED THE SEPTEMBER 7, 1971, AGREEMENT AS
OPERATIVE EVEN AFTER RECALL BY THE LABOR ORGANIZATION. THUS, THE RECORD
REVEALS THAT THE DEPOT CONTINUED TO DEDUCT DUES AFTER THE RECALL OF THE
AGREEMENT AND ATTEMPTED TO CONDUCT ITS BUSINESS IN CONFORMITY WITH THE
PROVISIONS OF THE AGREEMENT.
/9/ THE EVIDENCE ADDUCED IS UNCLEAR BECAUSE THE CLASSIFICATION OF
SURVEILLANCE INSPECTORS AND SURVEILLANCE INSTRUCTORS APPEAR TO BE USED
INTERCHANGEABLY IN THE TESTIMONY. FURTHER, IT IS UNCLEAR AS TO WHICH
CLASSIFICATIONS OF EMPLOYEES IN THE SURVEILLANCE CAREER FIELD, WORK, IN
THE DEPOT AND WHICH WORK IN THE CENTER.
/10/ AS INDICATED ABOVE IN FOOTNOTE 2, THE HEARING OFFICER MADE
CERTAIN RULINGS WITH RESPECT TO CROSS-EXAMINATION OF WITNESSES. IN THIS
REGARD, DURING THE HEARING, THE HEARING OFFICER DENIED THE NAGE
REPRESENTATIVE THE OPPORTUNITY TO CROSS-EXAMINE WITNESSES FULLY
REGARDING THE AGREEMENT BAR ISSUE POSED BY THE NEGOTIATED AGREEMENT OF
SEPTEMBER 7, 1971. I FIND THAT THERE IS INSUFFICIENT EVIDENCE WITH
RESPECT TO THE AGREEMENT OF SEPTEMBER 7, 1971 INSOFAR AS IT MAY
CONSTITUTE A BAR TO THE PETITION FILED IN CASE NO. 50-8197.
ACCORDINGLY, I AM UNABLE AT THIS TIME TO MAKE ANY DETERMINATION IN THIS
REGARD.
/11/ AS INDICATED IN FOOTNOTE 2 ABOVE, THE HEARING OFFICER MADE
RULINGS AS TO A REQUEST FOR APPEARANCE OF WITNESSES AND PRODUCTION OF
DOCUMENTS AND THE CROSS-EXAMINATION OF WITNESSES. THE EVENTS RELATING
TO THE CROSS-EXAMINATION OF WITNESSES ARE DISCUSSED AT FOOTNOTE 10
ABOVE.
AS TO THE REQUEST FOR APPEARANCE OF WITNESSES AND PRODUCTION OF
DOCUMENTS, THE FACTS REVEAL THAT SEVERAL DAYS PRIOR TO THE OPENING OF
THE HEARINGS, PURSUANT TO INSTRUCTIONS FROM A REPRESENTATIVE OF THE
CHICAGO AREA OFFICE, COUNSEL FOR THE NAGE SUBMITTED A WRITTEN REQUEST
FOR THE APPEARANCE OF WITNESSES AND THE PRODUCTION OF CERTAIN DOCUMENTS
TO THE CHICAGO AREA ADMINISTRATOR, WITH SERVICE ON THE OTHER PARTIES.
SUBSEQUENTLY, IN THE EARLY STAGES OF THE HEARING, THE HEARING OFFICER
DENIED THE REQUEST ON THE GROUNDS THAT NAGE HAD NOT MADE A "PERSONAL
REQUEST" TO THE REQUESTED WITNESSES FOR THEIR APPEARANCE AT THE HEARING.
INASMUCH AS SECTION 205.6 OF THE ASSISTANT SECRETARY'S REGULATIONS,
WHICH WAS IN EFFECT AT THAT TIME (SECTION 206.7 OF THE CURRENT
REGULATIONS IS THE EQUIVALENT OF THE ABOVE SECTION OF THE REGULATIONS),
DID NOT REQUIRE ANY SUCH "PERSONAL REQUEST" BY THE PARTIES SEEKING THE
APPEARANCE OF WITNESSES AT A HEARING, I FIND THAT THE HEARING OFFICER'S
RULINGS AND STATEMENTS WERE IN ERROR. IN THIS CONNECTION, IT IS
POSSIBLE THAT INFORMATION OBTAINED FROM THOSE WITNESSES AND DOCUMENTS
WOULD HAVE ENABLED ME TO MAKE A DETERMINATION AS TO EITHER OR BOTH, THE
AGREEMENT BAR ISSUE AND/OR THE APPROPRIATE UNIT QUESTION WITH RESPECT TO
THE CENTER. IN THESE CIRCUMSTANCES, I SHALL GRANT THE NAGE'S MOTION FOR
REMAND FOR FURTHER PROCEEDINGS AS IT RELATES TO CASE NO. 50-8197.
2 A/SLMR 227; P. 596; CASE NO. 40-3628(RO); DECEMBER 18, 1972.
UNITED STATES DEPARTMENT OF
AGRICULTURE, FOREST SERVICE,
FRANCIS MARION AND SUMTER
NATIONAL FORESTS
A/SLMR NO. 227
THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 379,
(NFFE) SOUGHT AN ELECTION IN A UNIT COMPOSED OF ALL OF THE ACTIVITY'S
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES. THE ACTIVITY AGREED THAT
THE UNIT WAS APPROPRIATE BUT CONTENDED THAT CERTAIN CLASSIFICATIONS OF
EMPLOYEES WERE PROFESSIONAL. THE ACTIVITY FURTHER CONTENDED THAT
CERTAIN OF THE EMPLOYEES SOUGHT BY THE NFFE WERE SUPERVISORS,
CONFIDENTIAL EMPLOYEES, "TEMPORARY" EMPLOYEES OR "SEASONAL" EMPLOYEES
AND GUARDS AND SHOULD BE EXCLUDED FROM THE UNIT.
THE ASSISTANT SECRETARY, NOTING THE AGREEMENT OF THE PARTIES AND THE
FACT THAT UNITS SIMILAR IN SCOPE HAVE BEEN FOUND APPROPRIATE IN PRIOR
DECISIONS, FOUND THAT THE CLAIMED UNIT WAS APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION AND WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS.
IN DETERMINING WHETHER OR NOT CERTAIN EMPLOYEES IN ISSUE (FORESTERS,
CIVIL ENGINEERS, CADASTRAL SURVEYOR, CONTRACT ASSISTANT, SOIL SCIENTISTS
AND LANDSCAPE ARCHITECT) WERE PROFESSIONALS, THE ASSISTANT SECRETARY
APPLIED THE CRITERIA ESTABLISHED IN DEPARTMENT OF INTERIOR, BUREAU OF
LAND MANAGEMENT, RIVERSIDE DISTRICT AND LAND OFFICE, A/SLMR NO. 170, FOR
A PROFESSIONAL EMPLOYEE. IN APPLYING THIS CRITERIA, THE ASSISTANT
SECRETARY DETERMINED THAT EMPLOYEES IN THE JOB CLASSIFICATIONS OF
FORESTER AND CIVIL ENGINEER WERE PROFESSIONAL EMPLOYEES. IN MAKING THIS
DETERMINATION, HE NOTED THAT THE POSITIONS REQUIRED KNOWLEDGE OF AN
ADVANCED TYPE, RESPECTIVELY IN FORESTRY AND ENGINEERING; THAT THEIR
WORK IS PREDOMINATELY INTELLECTUAL IN CHARACTER REQUIRING THE CONSISTENT
EXERCISE OF DISCRETION AND JUDGMENT; AND THUS THE RESULTS OF THEIR WORK
CANNOT BE STANDARDIZED IN RELATION TO A GIVEN PERIOD OF TIME. HE ALSO
FOUND THAT THE EMPLOYEES IN THE JOB CLASSIFICATIONS OF CADASTRAL
SURVEYOR AND CONTRACT ASSISTANT WERE NOT PROFESSIONALS BASED ON THE FACT
THAT EMPLOYEES IN THESE CLASSIFICATIONS DO NOT REQUIRE KNOWLEDGE OF AN
ADVANCED TYPE IN A FIELD OF SCIENCE OR LEARNING OR A PROLONGED COURSE OF
SPECIALIZED INTELLECTUAL INSTRUCTION OR STUDY. THE ASSISTANT SECRETARY
CONCLUDED THAT THE RECORD WAS NOT ADEQUATE TO MAKE A DETERMINATION AS TO
THE PROFESSIONAL STATUS OF THE SOIL SCIENTIST AND LANDSCAPE ARCHITECT.
IN THIS CONNECTION, HE NOTED THAT WHILE THE RECORD REFLECTED THE ACTUAL
EDUCATION REQUIREMENTS FOR THESE POSITIONS IT DID NOT REFLECT ADEQUATELY
THE DESCRIPTION OF WORK PERFORMED, THE DEGREE OF DISCRETION AND JUDGMENT
NEEDED IN ITS PERFORMANCE OR THE CHARACTER OF SUCH WORK.
THE ASSISTANT SECRETARY FOUND THAT THE FIRE DISPATCHER, WHO ACTS AS A
SUPERVISOR DURING THE SEVEN MONTH FIRE PREVENTION SEASON, SHOULD BE
EXCLUDED FROM THE UNIT DURING THAT PORTION OF THE YEAR THAT HE ACTS AS
SUPERVISOR. HE ALSO FOUND WITH RESPECT TO HIS STATUS DURING THE "OFF
SEASON' THAT THERE WAS INSUFFICIENT EVIDENCE TO MAKE A DETERMINATION.
THE ASSISTANT SECRETARY FOUND THAT THE SURVEYING TECHNICIAN WAS NOT A
SUPERVISOR IN THAT HE WORKED AS PART OF A TEAM AND THAT THERE IS NO
EVIDENCE THAT HE EXERCISES AUTHORITY OVER TEAM MEMBERS OTHER THAN THAT
OF A ROUTINE NATURE. THE ASSISTANT SECRETARY FURTHER CONCLUDED THAT THE
RECORD WAS NOT ADEQUATE TO MAKE A DETERMINATION WITH RESPECT TO THE
SUPERVISORY STATUS OF THE JOB CLASSIFICATIONS, FORESTRY TECHNICIAN,
ENGINEERING EQUIPMENT OPERATOR, AND FIRE CONTROL TECHNICIAN.
THE ASSISTANT SECRETARY FOUND THAT AS THE PRIMARY DUTIES OF THE
CRIMINAL INVESTIGATOR WERE OF A LAW ENFORCEMENT NATURE, HE WAS NOT A
GUARD WITHIN THE MEANING OF SECTION 2(D) OF THE ORDER. HE ALSO FOUND
THAT THE CRIMINAL INVESTIGATOR WAS NOT A CONFIDENTIAL EMPLOYEE. HE
NOTED THAT WHILE THE CRIMINAL INVESTIGATOR MAY ON OCCASION HAVE ACCESS
TO CERTAIN CONFIDENTIAL INFORMATION, THERE IS NO EVIDENCE THAT HE IS
PRIVY TO ANY CONFIDENTIAL INFORMATION WITH RESPECT TO LABOR RELATIONS OR
THAT HE ACTS IN A CONFIDENTIAL CAPACITY TO PERSONS WHO FORMULATE OR
EFFECTUATE MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS. HE
FURTHER FOUND THAT THE CRIMINAL INVESTIGATOR WAS NOT A PROFESSIONAL AS
THE POSITION DOES NOT REQUIRE KNOWLEDGE OF AN ADVANCED TYPE IN A FIELD
OF SCIENCE OR LEARNING.
THE ASSISTANT SECRETARY FOUND THAT THOSE DISTRICT RANGER CLERKS
ATTENDING STAFF MEETINGS WHERE PUBLIC RELATIONS, PERSONNEL ACTIONS,
PROMOTIONS, AND DISCIPLINARY ACTIONS ARE DISCUSSED ARE CONFIDENTIAL
EMPLOYEES AND SHOULD BE EXCLUDED FROM THE UNIT. HE ALSO CONCLUDED THAT
THE RECORD WAS NOT ADEQUATE TO DETERMINE WHETHER OR NOT THE PERSONNEL
CLERK WAS ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY. THE ASSISTANT SECRETARY FURTHER FOUND THAT EMPLOYEES
CLASSIFIED AS "TEMPORARY" OR "SEASONAL" HAVE A REASONABLE EXPECTANCY OF
FUTURE EMPLOYMENT AND THUS SHARED A COMMUNITY OF INTEREST WITH OTHER
ACTIVITY EMPLOYEES AND SHOULD BE INCLUDED IN THE UNIT. ACCORDINGLY, THE
ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE UNIT FOUND APPROPRIATE.
UNITED STATES DEPARTMENT
OF AGRICULTURE, FOREST
SERVICE, FRANCIS MARION
AND SUMTER NATIONAL
FORESTS /1/
AND
NATIONAL FEDERATION OF
EMPLOYEES, LOCAL 379
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER JOHN L. BONNER.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 379, HEREIN
CALLED NFFE, SEEKS AN ELECTION IN A UNIT CONSISTING OF ALL PROFESSIONAL
AND NONPROFESSIONAL EMPLOYEES OF THE SUPERVISOR'S OFFICE AND RANGER
DISTRICTS OF THE FRANCIS MARION AND SUMTER NATIONAL FORESTS, SOUTH
CAROLINA, EXCLUDING ALL MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK OTHER THAN IN A PURELY CLERICAL CAPACITY, AND
GUARDS AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED.
THE ACTIVITY AGREES THAT THE UNIT SOUGHT IS APPROPRIATE, BUT CONTENDS
THAT EMPLOYEES EMPLOYED IN THE CLASSIFICATIONS OF FORESTER, CIVIL
ENGINEER, LANDSCAPE ARCHITECT, SOIL SCIENTIST AND CADASTRAL SURVEYOR ARE
PROFESSIONAL EMPLOYEES. THE ACTIVITY ALSO RAISED A QUESTION BUT TOOK NO
POSITION ON THE PROFESSIONAL STATUS OF EMPLOYEES CLASSIFIED AS CONTRACT
ASSISTANTS AND CRIMINAL INVESTIGATORS. IN ADDITION, THE ACTIVITY WOULD
EXCLUDE FROM THE UNIT AS SUPERVISORS THOSE EMPLOYEES CLASSIFIED AS
CONTRACT ASSISTANTS AND CRIMINAL INVESTIGATORS. IN ADDITION, THE
ACTIVITY WOULD EXCLUDE FROM THE UNIT AS SUPERVISORS THOSE EMPLOYEES
CLASSIFIED AS FORESTRY TECHNICIAN, SURVEYING TECHNICIAN, FIRE CONTROL
TECHNICIAN, FIRE DISPATCHER, AND ENGINEERING EQUIPMENT OPERATOR FOREMAN.
IT ALSO SOUGHT TO EXCLUDE AS CONFIDENTIAL EMPLOYEES THOSE CLASSIFIED AS
DISTRICT RANGER CLERK, PERSONNEL CLERK AND CRIMINAL INVESTIGATOR AND TO
EXCLUDE CERTAIN EMPLOYEES AS "TEMPORARY" OR "SEASONAL" IF THEY HAD
WORKED LESS THAN TWO SEASONS. FURTHER, IT WAS CONTENDED THAT ACTIVITY
EMPLOYEES CLASSIFIED AS CRIMINAL INVESTIGATOR WERE GUARDS WITHIN THE
MEANING OF THE ORDER. THE NFFE TOOK NO POSITION REGARDING THE
ELIGIBILITY OF THE EMPLOYEES EMPLOYED IN THE ABOVE-NAMED JOB
CLASSIFICATIONS.
IN ALL THE CIRCUMSTANCES, INCLUDING THE AGREEMENT OF THE PARTIES WITH
RESPECT TO THE SCOPE OF THE UNIT SOUGHT AND THE FACT THAT UNITS SIMILAR
IN SCOPE HAVE BEEN FOUND APPROPRIATE IN PRIOR DECISIONS, /2/ I FIND THAT
THE CLAIMED UNIT IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
AND WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ALTHOUGH THE PARTIES WERE IN AGREEMENT AS TO THE APPROPRIATE UNIT, AS
NOTED ABOVE, THE ACTIVITY RAISED SEVERAL ELIGIBILITY QUESTIONS.
FORESTERS
FORESTERS ARE RESPONSIBLE FOR THE SILVICULTURAL TREATMENT OF FOREST
LANDS /3/ AND FOR THE MULTIPLE USE TREATMENT OR MULTIPLE USE MANAGEMENT
OF OTHER RESOURCES. THEY PERFORM SCIENTIFIC WORK IN THE MANAGEMENT OF
EACH FOREST RESOURCE-- TIMBER, WATER, FORAGE, WILDLIFE, PUBLIC
RECREATION, SOILS, MINERALS, AND LAND-- IN INTERRELATIONSHIP WITH OTHER
FOREST RESOURCES, TO MEET PRESENT AND FUTURE PUBLIC NEEDS. THE RECORD
REVEALS THAT SUCH WORK INVOLVES THE DEVELOPMENT, PRODUCTION,
CONSERVATION, AND UTILIZATION OF THE NATURAL RESOURCES OF THE FORESTS;
THE PROTECTION OF RESOURCES AGAINST FIRE, INSECTS, DISEASES, FLOODS,
EROSION, TRESPASS, AND OTHER DEPREDATIONS; THE PRESERVATION OF
LANDSCAPE EFFECTS; AND ESTABLISHMENT OF PROPER ENVIRONMENTAL CONDITIONS
FOR WILDLIFE. A FORESTER IS REQUIRED TO HAVE A BACHELOR OF SCIENCE
DEGREE IN FORESTRY FROM AN ACCREDITED FORESTRY SCHOOL. /4/ THE RECORD
REVEALS THAT A FORESTER'S SPECIALIZED EDUCATION IS UTILIZED ON A
CONTINUOUS BASIS IN THE PERFORMANCE OF HIS WORK AND IS NECESSARY IN
ORDER TO UNDERSTAND THE SILVICULTURE OR THE ECOLOGICAL CHARACTERISTICS
OF THE FOREST, THE INSECTS AND DISEASES THAT ARE APPLICABLE TO VARIOUS
AND SUNDRY SPECIES OF TREES, AND THE CHARACTERISTICS OF SOILS UPON WHICH
THE TREES GROW.
IN A RECENT DECISION, I DEFINED THE SPECIFIC CRITERIA WHICH I
CONSIDER NECESSARY TO FIND AN EMPLOYEE A PROFESSIONAL WITHIN THE MEANING
OF THE ORDER. I FIND THAT BASED ON THE RECORD EVIDENCE ADDUCED IN THIS
CASE, THE EMPLOYEES IN QUESTION MEET THE CRITERIA SET FORTH IN THAT
DEFINITION. /5/ THUS, THE EVIDENCE HEREIN ESTABLISHES THAT A FORESTER
OCCUPIES A POSITION WHICH REQUIRES KNOWLEDGE OF AN ADVANCED TYPE IN THE
FIELD OF FORESTRY; HIS WORK IS PREDOMINATELY INTELLECTUAL IN CHARACTER,
REQUIRING THE CONSISTENT EXERCISE OF DISCRETION AND JUDGMENT; AND THE
RESULTS OF HIS WORK CANNOT BE STANDARDIZED IN RELATION TO A GIVEN PERIOD
OF TIME. UNDER THESE CIRCUMSTANCES, I FIND THOSE EMPLOYEES CLASSIFIED
AS FORESTERS TO BE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE
ORDER.
CIVIL ENGINEERS
CIVIL ENGINEERS ARE RESPONSIBLE FOR ALL CONSTRUCTION, MAINTENANCE AND
IMPROVEMENTS OF THE ACTIVITY'S FACILITIES. THEIR JOB FUNCTIONS INCLUDE,
AMONG OTHER THINGS, BRIDGE DESIGN AND ROAD CONSTRUCTION. THEY ARE
REQUIRED TO HAVE THE EQUIVALENT OF A BACHELOR OF SCIENCE DEGREE IN
ENGINEERING. THE RECORD REVEALS THAT WITHOUT THEIR REQUIRED SPECIALIZED
EDUCATIONAL BACKGROUND IN ENGINEERING CIVIL ENGINEERS WOULD NOT BE
CAPABLE OF PERFORMING THE ABOVE-NOTED JOB FUNCTIONS. FROM THE EVIDENCE
ADDUCED, IT WAS SHOWN THAT THE WORK PERFORMED BY THESE EMPLOYEES IS
PREDOMINATELY INTELLECTUAL AND VARIED IN CHARACTER, REQUIRES THE USE OF
INDEPENDENT JUDGMENT, AND CANNOT BE STANDARDIZED IN TERMS OF QUANTITY OF
WORK PRODUCED. IN THESE CIRCUMSTANCES, I FIND THAT EMPLOYEES IN THE JOB
CLASSIFICATION OF CIVIL ENGINEER ARE PROFESSIONAL EMPLOYEES WITHIN THE
MEANING OF THE ORDER.
CADASTRAL SURVEYOR AND CONTRACT ASSISTANT
THE CADASTRAL SURVEYOR IS ENGAGED IN SURVEYING FOR BOUNDARY LINES,
PROPERTY LINES, AND CONSTRUCTION WORK AT THE ACTIVITY. HE IS REQUIRED
TO HAVE A FULL FOUR-YEAR COURSE OF STUDY AT AN ACCREDITED COLLEGE OR
UNIVERSITY LEADING TO A BACHELOR'S OR HIGHER DEGREE, INCLUDING 30
SEMESTER HOURS IN ANY COMBINATION OF COURSES IN SURVEYING, MATHEMATICS,
ENGINEERING, PHOTOGRAMMETRY, LAND LAW AND PHYSICAL SCIENCES. HIS COURSE
OF STUDY MUST HAVE INCLUDED SIX SEMESTER HOURS IN SURVEYING. /6/
THE CONTRACT ASSISTANT ASSISTS THE SUPERVISORY CONTRACT SPECIALIST IN
PREPARING BIDS TO ADVERTISE FOR VARIOUS JOBS CONTRACTED OUT BY THE
ACTIVITY. WHILE AN EMPLOYEE IN THIS CLASSIFICATION ASSISTS IN THE
ANALYSIS AND ADMINISTRATION OF THE ACTIVITY'S CONTRACTS, THE EMPLOYEE'S
PRIMARY FUNCTION IS THAT OF PROCUREMENT AND SUPPLY, I.E., KNOWING THE
SOURCES OF SUPPLY, KNOWING WHERE TO OBTAIN THE NEEDED MATERIALS, AND
MAINTAINING GOOD RELATIONSHIPS WITH THE VARIOUS COMPANIES WHICH CONTRACT
WITH THE ACTIVITY.
THE RECORD REVEALS THAT IN THE PERFORMANCE OF THEIR JOBS CADASTRAL
SURVEYORS AND CONTRACT ASSISTANTS UTILIZE A LIMITED DEGREE OF
DISCRETION, JUDGMENT AND SPECIALIZED KNOWLEDGE. FURTHER, THEY ARE NOT
REQUIRED TO HAVE KNOWLEDGE OF AN ADVANCED TYPE IN A FIELD OF SCIENCE OR
LEARNING OR A PROLONGED COURSE OF SPECIALIZED INTELLECTUAL INSTRUCTION
OR STUDY, BUT RATHER IT APPEARS THAT, AT MOST, THEIR KNOWLEDGE IS
ACQUIRED ESSENTIALLY BY A GENERAL ACADEMIC EDUCATION OR BY A COMBINATION
OF SOME LIMITED EDUCATION AND EXPERIENCE. IN THESE CIRCUMSTANCES, I
FIND THAT THE CADASTRAL SURVEYOR AND CONTRACT ASSISTANT ARE NOT
PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE ORDER.
SOIL SCIENTIST AND LANDSCAPE ARCHITECT
WHILE THE RECORD REFLECTS THE EDUCATIONAL REQUIREMENTS FOR THESE JOB
CLASSIFICATIONS, IN MY VIEW IT DOES NOT REFLECT ADEQUATELY THE ACTUAL
WORK PERFORMED BY EMPLOYEES IN THESE CLASSIFICATIONS OR THE DEGREE OF
DISCRETION AND JUDGMENT UTILIZED IN THE PERFORMANCE OF THEIR WORK. IN
THESE CIRCUMSTANCES, I MAKE NO FINDING WITH RESPECT TO THE PROFESSIONAL
STATUS OF THE EMPLOYEES IN THESE CLASSIFICATIONS.
AS NOTED ABOVE, THE ACTIVITY CONTENDS THAT EMPLOYEES IN THE FOLLOWING
CLASSIFICATIONS ARE SUPERVISORS WITHIN THE MEANING OF THE ORDER:
FIRE DISPATCHER
THE RECORD REVEALS THAT THE ACTIVITY'S FIRE DISPATCHER SERVES AS
DISPATCHER FOR THE WEATHERBY DISTRICT OF THE FORESTS. HE INITIATES
ACTION ON FIRE FIGHTING UPON RECEIPT OF REPORTS FROM LOOKOUTS AND OTHER
SOURCES AND DISPATCHES MEN, EQUIPMENT, AND SUPPLIES AS NEEDED. REPORTING
TO THE FIRE DISPATCHER, APPROXIMATELY SEVEN MONTHS OUT OF THE YEAR, ARE
TWO FIRE PREVENTION TECHNICIANS AND SIX LOOKOUTS. /7/ DURING THIS
PERIOD, THE FIRE DISPATCHER HAS THE AUTHORITY TO HIRE AND APPROVE LEAVE
UP TO THREE DAYS. WHILE THE FIRE CONTROL CREW ROSTER IS ESTABLISHED IN
ADVANCE, THE FIRE DISPATCHER HAS THE AUTHORITY, IF HE DEEMS NECESSARY,
TO EXPAND HIS CREW WITHOUT CONSULTING HIGHER AUTHORITY. HE ALSO HAS THE
AUTHORITY DURING THE SEVEN MONTH PERIOD NOTED ABOVE TO CANCEL PREVIOUSLY
SCHEDULED VACATIONS IF HE DEEMS THAT A FIRE DANGER IS EXCEEDINGLY GREAT
AND HE DETERMINES WHICH SEASONAL EMPLOYEES WILL RETURN THE FOLLOWING
YEAR.
DURING THE "OFF SEASON," APPROXIMATELY FIVE MONTHS OUT OF THE YEAR,
THE FIRE DISPATCHER AND THOSE EMPLOYEES HE DIRECTS ARE INTEGRATED INTO
THE REST OF THE DISTRICT WORK FORCE. THE RECORD REVEALS THAT DURING THE
"OFF SEASON" THE JOB FUNCTIONS OF THESE EMPLOYEES ARE NOT RELATED TO
FIRE CONTROL. /8/
I HAVE FOUND PREVIOUSLY THAT A "SEASONAL SUPERVISOR," WHO SPENDS A
PORTION OF THE WORK YEAR AS A RANK-AND-FILE EMPLOYEE AND THE REMAINDER
OF THE YEAR AS A SUPERVISOR, SHOULD BE INCLUDED IN AN EMPLOYEE
BARGAINING UNIT DURING THE "OUT OF SEASON" PERIOD WHEN HE IS PERFORMING
RANK-AND-FILE DUTIES. FURTHER, I CONCLUDED THAT SUCH AN INDIVIDUAL
SHOULD BE DEEMED ELIGIBLE TO VOTE IN AN ELECTION PROVIDING HE IS NOT IN
A SUPERVISORY STATUS AT THE TIME OF THE ELECTION; HOWEVER, HE WOULD BE
INCLUDED IN THE UNIT ONLY DURING THE PERIOD IN WHICH HE EXERCISES NO
SUPERVISORY DUTIES. /9/ THE EVIDENCE ESTABLISHES THAT DURING THE SEVEN
MONTH FIRE PREVENTION SEASON THE FIRE DISPATCHER POSSESSES INDEPENDENT
AND RESPONSIBLE AUTHORITY TO DIRECT OTHER EMPLOYEES, HAS THE POWER TO
HIRE AND DETERMINES WHICH SEASONAL EMPLOYEES WILL BE RETAINED THE
FOLLOWING YEAR. IN THESE CIRCUMSTANCES, I FIND THAT THE FIRE DISPATCHER
IS A SUPERVISOR WITHIN THE MEANING OF THE ORDER DURING THE SEVEN MONTH
FIRE PREVENTION SEASON AND SHOULD NOT BE INCLUDED IN THE UNIT DURING
THAT PERIOD. WITH RESPECT TO HIS SUPERVISORY STATUS DURING THE "OFF
SEASON," I FIND THAT THERE IS INSUFFICIENT EVIDENCE TO MAKE A
DETERMINATION IN THIS REGARD. ACCORDINGLY, I MAKE NO FINDING WITH
RESPECT TO THE SUPERVISORY STATUS OF THE FIRE DISPATCHER DURING THE "OFF
SEASON."
FIRE CONTROL TECHNICIAN
THE FIRE CONTROL TECHNICIAN OF THE ACTIVITY SERVES AS DISPATCHER IN
THE LONE CANE AND EDGEFIELD DISTRICTS OF THE FORESTS. THE RECORD
DISCLOSES THAT THIS POSITION IS IN SOME DEGREE SIMILAR TO THAT OF THE
FIRE DISPATCHER POSITION IN THE WEATHERBY DISTRICT. THE RECORD REVEALS
THAT THE FIRE CONTROL TECHNICIAN DIRECTS THREE LOOKOUTS WHO ARE
CLASSIFIED AS SEASONAL EMPLOYEES, /10/ BUT DOES NOT HAVE AUTHORITY TO
GRANT LEAVE TO THESE EMPLOYEES. /11/ AS THE RECORD IS UNCLEAR AS TO THE
EXTENT OF SUPERVISORY AUTHORITY EXERCISED BY THE FIRE CONTROL
TECHNICIAN, I SHALL MAKE NO FINDING WITH RESPECT TO THE SUPERVISORY
STATUS OF THE EMPLOYEE IN THIS CLASSIFICATION.
SURVEYING TECHNICIAN
THE SURVEYING TECHNICIAN IS RESPONSIBLE FOR SURVEYING ROADS, FOREST
LAND AND THE MAINTENANCE OF PROPERTY LINE ROADS. HE DIRECTS ONE
EMPLOYEE (A RODMAN) WHO IS ASSIGNED ON A PERMANENT, FULL-TIME BASIS, AND
ANOTHER EMPLOYEE WHO IS NOT PERMANENTLY ASSIGNED.
THE RECORD REVEALS THAT A SURVEYING TECHNICIAN WORKS ALONG WITH HIS
CREW ON A DAILY BASIS IN THE FIELD RUNNING A "TRANSIT." HIS PROJECT
ASSIGNMENTS AND THOSE OF HIS CREW ARE MADE PURSUANT TO PROJECT PLANS
PREPARED BY THE FORESTER OR RANGER. WHILE THERE IS EVIDENCE THAT THE
SURVEYING TECHNICIAN MAKES CERTAIN RECOMMENDATIONS IN CONNECTION WITH
THE EVALUATION OF THE PERFORMANCE OF THE PERMANENT, FULL-TIME EMPLOYEE,
THE EVIDENCE DID NOT SHOW THAT SUCH RECOMMENDATIONS ARE EFFECTIVE WITHIN
THE MEANING OF SECTION 2(C) OF THE ORDER.
BASED ON THE EVIDENCE OVERALL, I FIND THAT THE SURVEYING TECHNICIAN
IS NOT A SUPERVISOR WITHIN THE MEANING OF THE ORDER. THUS, HE AND THE
EMPLOYEES WORKING WITH HIM WORK AS A TEAM AND THERE IS NO EVIDENCE THAT
HE EXERCISES AUTHORITY OVER SUCH EMPLOYEES OTHER THAN THAT OF A ROUTINE
NATURE. ACCORDINGLY, I FIND THE SURVEYING TECHNICIAN IS NOT A
SUPERVISOR AND SHALL INCLUDE HIM IN THE UNIT FOUND APPROPRIATE.
FORESTRY TECHNICIAN
FORESTRY TECHNICIANS /12/ SERVE AS ASSISTANTS TO THE VARIOUS DISTRICT
RANGERS AND ARE RESPONSIBLE FOR ADMINISTERING A PROGRAM SEGMENT OR
PERFORMING WORK INVOLVING THE APPLICATION OR MODIFICATION OF ESTABLISHED
PRACTICES, METHODS, TECHNIQUES, AND PROCEDURES FOR THE DEVELOPMENT,
UTILIZATION, MANAGEMENT, AND PROTECTION OF FOREST RESOURCES. THE RECORD
IS UNCLEAR AS TO THE ACTUAL JOB FUNCTIONS AND RESPONSIBILITIES OF THESE
EMPLOYEES, THE NUMBER OF EMPLOYEES UNDER THEIR AUTHORITY, AND THE DEGREE
OF SUPERVISION, IF ANY, EXERCISED. /13/ IN THESE CIRCUMSTANCES, I SHALL
MAKE NO FINDING WITH RESPECT TO THE SUPERVISORY STATUS OF EMPLOYEES IN
THE CLASSIFICATION OF FORESTRY TECHNICIAN.
ENGINEERING AND EQUIPMENT OPERATOR FOREMAN
THE PRIMARY DUTY OF THE ENGINEERING AND EQUIPMENT OPERATOR FOREMAN IS
THE PLANNING AND ASSIGNING OF WORK INVOLVING THE MAINTENANCE OF THE ROAD
NETWORK IN THE FORESTS. HE DETERMINES WHEN ROADS WILL BE GRAVELED OR
CLEANED AND WHEN GRASS WILL BE MOWED. IN PERFORMING HIS JOB FUNCTION,
HE DIRECTS ONE ROAD GRADER AND TWO TRACTOR-TYPE MOWERS. ALTHOUGH HE HAS
THE AUTHORITY TO ASSIGN EMPLOYEES FROM ONE DETAIL TO ANOTHER, IT IS NOT
CLEAR FROM THE RECORD AS TO WHETHER SUCH ASSIGNMENTS ARE OF A ROUTINE
NATURE. THE RECORD ALSO IS UNCLEAR AS TO WHETHER THE ENGINEERING AND
EQUIPMENT OPERATOR FOREMAN EFFECTIVELY RECOMMENDS EMPLOYEES UNDER HIS
DIRECTION FOR IN-GRADE RAISES AND PROMOTIONS OR WHETHER HE EXERCISES ANY
OTHER SUPERVISION AUTHORITY. UNDER THE FOREGOING CIRCUMSTANCES, I SHALL
MAKE NO FINDING WITH RESPECT TO THE SUPERVISORY STATUS OF EMPLOYEES IN
THE CLASSIFICATION OF ENGINEERING AND EQUIPMENT OPERATOR FOREMAN.
AS NOTED ABOVE, THE ACTIVITY RAISED ADDITIONAL ELIGIBILITY QUESTIONS
PERTAINING TO THE FOLLOWING EMPLOYEE CLASSIFICATIONS:
CRIMINAL INVESTIGATOR
THE ACTIVITY WOULD EXCLUDE A CRIMINAL INVESTIGATOR AS A GUARD. THE
RECORD REVEALS THAT A CRIMINAL INVESTIGATOR IS CHARGED WITH THE
ENFORCEMENT OF THE CODE OF FEDERAL REGULATIONS WITH RESPECT TO THE
FOREST. HIS PRIMARY FUNCTION IS TO OBTAIN EVIDENCE WHICH CAN BE
PRESENTED IN A COURT OF LAW. THE INVESTIGATIONS WHICH HE CONDUCTS
INVOLVE VIOLATIONS OF FEDERAL REGULATIONS COMMITTED BY LOCAL RESIDENTS
OR VISITORS IN THE NATIONAL FORESTS. HE ALSO DETERMINES THE LIABILITY
OF RAILROADS WITH RIGHTS OF WAY IN THE FOREST WHEN FIRES OCCUR WHICH ARE
ASSOCIATED WITH THE RAILROADS. ALTHOUGH THE CRIMINAL INVESTIGATOR HAS
THE POWER TO ARREST, IS ARMED, AND HAS THE POWER TO CONDUCT "STAKE
OUTS," HE HAS NO PATROL RESPONSIBILITY AND DOES NOT ISSUE "TICKETS."
THE EVIDENCE DISCLOSES THAT WHILE CERTAIN ASPECTS OF THE DUTIES OF A
CRIMINAL INVESTIGATOR BEAR SOME RELATIONSHIP TO THE DEFINITION OF
"GUARDS" SET FORTH IN SECTION 2(D) OF THE ORDER, HE IS FURTHER CHARGED
WITH ADDITIONAL MISSIONS AND MORE VARIED DUTIES OF A LAW ENFORCEMENT
NATURE, IN WHICH HE IS ENGAGED A MAJORITY OF THE TIME, WHICH IN MY VIEW
WOULD DISTINGUISH SUCH AN EMPLOYEE FROM A "GUARD." THUS, THE RECORD
DISCLOSES THAT THE PRIMARY MISSION OF THE CRIMINAL INVESTIGATOR IS TO
INVESTIGATE VIOLATIONS OF FEDERAL REGULATIONS AND TO PREPARE EVIDENCE
THAT CAN BE PRESENTED IN A COURT OF LAW. UNDER THESE CIRCUMSTANCES, I
FIND THAT THE CRIMINAL INVESTIGATOR IS NOT A GUARD WITHIN THE MEANING OF
SECTION 2(D) OF THE ORDER. /14/
ALTERNATIVELY, THE ACTIVITY CONTENDS THAT CRIMINAL INVESTIGATORS ARE
EITHER CONFIDENTIAL OR PROFESSIONAL EMPLOYEES. WHILE THE RECORD
INDICATES THAT A CRIMINAL INVESTIGATOR MAY, ON OCCASION, HAVE ACCESS TO
CERTAIN CONFIDENTIAL INFORMATION, THERE IS NO EVIDENCE THAT HE IS PRIVY
TO ANY CONFIDENTIAL INFORMATION WITH RESPECT TO LABOR RELATIONS OR THAT
HE ACTS IN A CONFIDENTIAL CAPACITY TO PERSONS WHO FORMULATE OR
EFFECTUATE MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS.
ACCORDINGLY, I FIND THAT THE CRIMINAL INVESTIGATOR IS NOT A CONFIDENTIAL
EMPLOYEE. /15/ FURTHER, AS THE POSITION OF CRIMINAL INVESTIGATOR DOES
NOT REQUIRE KNOWLEDGE OF AN ADVANCED TYPE IN A FIELD OF SCIENCE OR
LEARNING, I FIND THAT AN EMPLOYEE IN THIS CLASSIFICATION IS NOT A
PROFESSIONAL WITHIN THE MEANING OF THE ORDER.
DISTRICT RANGER CLERKS
THE ACTIVITY WOULD EXCLUDE ON A SELECTIVE BASIS AS CONFIDENTIAL
EMPLOYEES ALL DISTRICT RANGER CLERKS WHO HANDLE CONFIDENTIAL MATTERS.
THE ACTIVITY ACKNOWLEDGES THAT NOT ALL DISTRICT RANGER CLERKS HANDLE
CONFIDENTIAL MATTERS AND PROPOSED THAT WHERE ACCESS TO CONFIDENTIAL
INFORMATION IS DENIED, THE DISTRICT RANGER CLERK SHOULD BE INCLUDED IN
THE UNIT. THE NFFE WOULD INCLUDE ALL DISTRICT RANGER CLERKS IN THE UNIT
FOUND APPROPRIATE BECAUSE THEIR JOB DESCRIPTIONS DO NOT INDICATE THAT
THEY HAVE ACCESS TO CONFIDENTIAL INFORMATION.
THE TYPICAL DUTIES OF A DISTRICT RANGER CLERK /16/ INCLUDE TYPING,
FILING, ACTING AS A RECEPTIONIST, AND PERFORMING OTHER CLERICAL SERVICES
FOR THE DISTRICT RANGER. DUTIES PERFORMED BY SELECTED DISTRICT RANGER
CLERKS CONSIDERED TO BE CONFIDENTIAL IN NATURE BY THE ACTIVITY INCLUDE
ATTENDANCE AT STAFF MEETINGS WHERE PUBLIC RELATIONS, PERSONNEL ACTIONS,
PROMOTIONS, AND DISCIPLINARY ACTIONS ARE DISCUSSED. FURTHER, IT APPEARS
THAT IN SOME INSTANCES THE DISTRICT RANGER CLERK HAS ACCESS TO
REORGANIZATION PLANS AND BUDGETARY MATTERS AND SUBCONTRACTING PLANS.
BASED ON THE FOREGOING EVIDENCE, I FIND THAT THOSE DISTRICT RANGER
CLERKS WHO ATTEND SUPERVISORY STAFF MEETINGS WHERE PUBLIC RELATIONS,
PERSONNEL ACTIONS, PROMOTIONS, AND DISCIPLINARY ACTIONS ARE DISCUSSED
ARE CONFIDENTIAL EMPLOYEES WITHIN THE MEANING OF THE ORDER AND SHOULD BE
EXCLUDED FROM THE UNIT. /17/
PERSONNEL CLERK
THE PERSONNEL CLERK WORKS IN THE SUPERVISOR'S OFFICE AND SERVES
PRINCIPALLY AS TO THE ASSISTANT TO THE PERSONNEL SPECIALIST. THE
ACTIVITY CONTENDS SHE IS ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL CAPACITY. THE NFFE TOOK NO POSITION WITH REGARD TO
THIS EMPLOYEE CLASSIFICATION. THE RECORD REVEALS THAT AN EMPLOYEE IN
THIS CLASSIFICATION IS RESPONSIBLE FOR SETTING UP PERSONNEL FOLDERS AND
DEVELOPMENT FOLDERS FOR EACH EMPLOYEE AND PROCESSING PERSONNEL ACTIONS
AND FORMS RELATED THERETO. THE PERSONNEL CLERK ALSO IS RESPONSIBLE FOR
INITIATING PERFORMANCE RATINGS AND ASSURING THEIR ACCURACY AND TYPING
CORRESPONDENCE RELATED TO PERSONNEL ACTIONS. FURTHER, THIS EMPLOYEE IS
REQUIRED TO PROVIDE NEW EMPLOYEES WITH INFORMATION CONCERNING HEALTH
BENEFITS AND LIFE INSURANCE. IN THE EVENT OF AN EMPLOYEE GRIEVANCE, THE
PERSONNEL CLERK TYPES THE LETTERS RELATING TO THE GRIEVANCE AND FILES
RELATED CORRESPONDENCE. ALTHOUGH THE RECORD DISCLOSED THAT THE
PERSONNEL CLERK VERIFIES WHETHER OR NOT JOB APPLICANTS FOR "TEMPORARY"
POSITIONS AT THE ACTIVITY MEET CERTAIN MINIMUM AGENCY QUALIFICATIONS FOR
EMPLOYMENT, IT IS UNCLEAR FROM THE RECORD WHETHER SUCH VERIFICATIONS ARE
OF A ROUTINE NATURE. FURTHER, THE RECORD IS UNCLEAR AS TO WHETHER THE
RESPONSIBILITIES SHE ASSUMES IN THE ABSENCE OF THE PERSONNEL SPECIALIST
INVOLVE FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.
IN THE CIRCUMSTANCES, AND NOTING THAT THE RECORD DOES NOT CONTAIN
SUFFICIENT EVIDENCE ON WHICH TO DETERMINE WHETHER OR NOT THE PERSONNEL
CLERK IS ENGAGED IN "A PURELY CLERICAL CAPACITY," I SHALL MAKE NO
FINDING WITH RESPECT TO WHETHER THIS EMPLOYEE SHOULD BE EXCLUDED FROM
THE UNIT.
SEASONAL EMPLOYEES
THE ACTIVITY TOOK THE POSITION THAT EMPLOYEES CLASSIFIED AS
"TEMPORARY" OR "SEASONAL" SHOULD BE EXCLUDED FROM THE CLAIMED UNIT
UNLESS THEY HAVE WORKED DURING TWO OR MORE SEASONS. THE RECORD
DISCLOSES THAT APPROXIMATELY ONE-HALF OF THE TOTAL WORK FORCE AT THE
DISTRICT LEVEL ARE CLASSIFIED AS "TEMPORARY" OR "SEASONAL" EMPLOYEES.
IT APPEARS THAT ALL OF THESE EMPLOYEES HAVE EITHER 180-DAY OR 220-DAY
APPOINTMENTS. THE RECORD REVEALS THAT FROM 50 PERCENT TO 60 PERCENT OF
THESE EMPLOYEES WILL BE REAPPOINTED THE FOLLOWING SEASON. THE EVIDENCE
DOES NOT INDICATE THAT THESE EMPLOYEES RECEIVE SEPARATE SUPERVISION, NOR
DOES IT SHOW THAT THEY PERFORM DUTIES OR ARE SUBJECT TO WORKING
CONDITIONS WHICH ARE DIFFERENT FROM THOSE OF THE PERMANENT EMPLOYEES OF
THE FORESTS. FOR THE REASONS STATED IN U.S.DEPARTMENT OF AGRICULTURE,
FORESTS SERVICES, SANTA FE NATIONAL FOREST, SANTA FE, NEW MEXICO, A/SLMR
NO. 88, AND NOTING PARTICULARLY THE LENGTH OF THEIR APPOINTMENTS AND THE
FACT THAT A MAJORITY OF THESE EMPLOYEES WILL BE REAPPOINTED THE
FOLLOWING SEASON, I FIND THAT THE "TEMPORARY" OR "SEASONAL" EMPLOYEES
HEREIN HAVE A REASONABLE EXPECTANCY OF FUTURE EMPLOYMENT AND, THUS,
MANIFEST A SUBSTANTIAL AND CONTINUING INTEREST IN THE TERMS AND
CONDITIONS OF EMPLOYMENT ALONG WITH PERMANENT EMPLOYEES. IN THESE
CIRCUMSTANCES, I FIND THAT EMPLOYEES IN THESE CLASSIFICATIONS ARE
ELIGIBLE TO BE INCLUDED IN THE UNIT. /18/
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES MAY
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491, AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE SUPERVISOR'S
OFFICE AND RANGER
DISTRICTS OF THE FRANCIS MARION AND SUMTER NATIONAL FORESTS,
EXCLUDING ALL CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK OTHER THAN IN
A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED
IN THE ORDER.
IT IS NOTED THAT THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10(B)(4) OF
THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH EMPLOYEES
WHO ARE NOT PROFESSIONALS, UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES
OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I, THEREFORE SHALL
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES ASSIGNED TO THE
SUPERVISOR'S OFFICE AND RANGER DISTRICTS OF THE FRANCIS MARION AND
SUMTER NATIONAL FORESTS, EXCLUDING NONPROFESSIONALS EMPLOYEES,
CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL EMPLOYEES ASSIGNED TO THE SUPERVISOR'S OFFICE
AND RANGER DISTRICTS OF THE FRANCIS MARION AND SUMTER NATIONAL FORESTS,
EXCLUDING PROFESSIONAL EMPLOYEES, CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN
THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL 379.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 379. IN THE EVENT THAT A MAJORITY OF THE VALID VOTES
OF VOTING GROUP (A) ARE CAST IN FAVOR OF INCLUSION IN THE SAME UNIT AS
NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF VOTING GROUP (A) SHALL BE
COMBINED WITH THOSE OF VOTING GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST FOR
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED BY THE APPROPRIATE AREA
ADMINISTRATOR INDICATING WHETHER OR NOT THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 379, WAS ELECTED BY THE PROFESSIONAL EMPLOYEE
UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES. HOWEVER,
I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE APPROPRIATE
UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE SUPERVISOR'S
OFFICE AND RANGER
DISTRICTS OF THE FRANCIS MARION AND SUMTER NATIONAL FORESTS,
EXCLUDING ALL CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK OTHER THAN IN
A PURELY CLERICAL
CAPACITY, MANAGEMENT MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL PROFESSIONAL EMPLOYEES ASSIGNED TO THE SUPERVISOR'S OFFICE
AND
RANGER DISTRICTS OF THE FRANCIS MARION AND SUMTER NATIONAL FORESTS,
EXCLUDING NONPROFESSIONAL
EMPLOYEES, CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND
GUARDS AS DEFINED IN THE
ORDER.
(B) ALL EMPLOYEES ASSIGNED TO THE SUPERVISOR'S OFFICE AND RANGER
DISTRICTS OF THE FRANCIS
MARION AND SUMTER NATIONAL FORESTS, EXCLUDING PROFESSIONAL EMPLOYEES,
CONFIDENTIAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE VOTING GROUPS WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO HAVE QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY
DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 379.
DATED, WASHINGTON, D.C.
DECEMBER 18, 1972
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ SEE UNITED STATES DEPARTMENT OF AGRICULTURE, BLACK HILLS NATIONAL
FOREST, A/SLMR NO. 58 AND U.S. DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, SCHENCK CIVILIAN CONSERVATION CENTER, NORTH CAROLINA, A/SLMR
NO. 116.
/3/ SILVICULTURE IS THE SCIENTIFIC MANAGEMENT OF FOREST LANDS BASED
UPON THE NEEDS AND THE ECOLOGICAL CHARACTERISTICS OF THE SOILS INVOLVED.
/4/ SOME OF THE SUBJECTS REQUIRED TOWARD OBTAINING A DEGREE IN
FORESTRY ARE: INTRODUCTION OF FORESTRY, SILVICS, DENTROLOGY, PHYSICAL
GEOLOGY, PLANT PHYSIOLOGY, FOREST ENTOMOLOGY, DENDROMETRY, FOREST
ECONOMICS, AERIAL FOREST MAPPING, WOOD TECHNOLOGY, SILVICULTURE,
WILDLIFE MANAGEMENT, FOREST PATHOLOGY, FOREST PRODUCTS, LOGGING AND
MILLING, FOREST PROTECTION, MANAGEMENT PLANS, FOREST REGULATION, FOREST
POLICY AND ADMINISTRATION, AND FOREST VALUATION.
/5/ SEE DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, RIVERSIDE
DISTRICT AND LAND OFFICE, A/SLMR NO. 170, WHERE I DEFINED A PROFESSIONAL
EMPLOYEE AS FOLLOWS:
(A) ANY EMPLOYEE ENGAGED IN THE PERFORMANCE OF WORK (1) 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, OR PHYSICAL PROCESSES; (2)
REQUIRING THE CONSISTENT EXERCISE OF DISCRETION AND JUDGMENT IN ITS
PERFORMANCE; (3) WHICH IS PREDOMINATELY INTELLECTUAL AND VARIED IN
CHARACTER 7 (AS OPPOSED TO ROUTINE MENTAL, MANUAL, MECHANICAL OR
PHYSICAL WORK); AND (4) WHICH IS OF SUCH A CHARACTER THAT THE OUTPUT
PRODUCED OR THE RESULT ACCOMPLISHED CANNOT BE STANDARIZED IN RELATION TO
A GIVEN PERIOD OF TIME; OR
(B) ANY EMPLOYEE WHO HAS COMPLETED THE COURSES OF SPECIALIZED
INTELLECTUAL INSTRUCTION AND STUDY DESCRIBED IN CLAUSE (A) ABOVE AND IS
PERFORMING RELATED WORK UNDER THE DIRECTION OR GUIDANCE OF A
PROFESSIONAL PERSON TO QUALIFY HIMSELF TO BECOME A PROFESSIONAL EMPLOYEE
AS DEFINED IN CLAUSE (A) ABOVE.
/6/ ALTERNATIVELY, A CADASTRAL SURVEYOR MAY HAVE 30 SEMESTER HOURS OF
COURSE WORK AS DESCRIBED ABOVE PLUS EXPERIENCE WHICH, WHEN COMBINED WITH
THE SPECIFIC COURSE WORK, WILL TOTAL FOUR YEARS OF EXPERIENCE AND
EDUCATION.
/7/ THE TWO FIRE PREVENTION TECHNICIANS AND TWO OF THE LOOKOUTS ARE
CLASSIFIED AS PERMANENT EMPLOYEES; THE REMAINING LOOKOUTS HAVE VARIOUS
TYPE APPOINTMENTS, E.G., SEASONAL, ETC.
/8/ THE RECORD INDICATES THAT DURING THE FIVE MONTH "OFF SEASON" THE
FIRE DISPATCHER AND EMPLOYEES UNDER HIS SUPERVISION ACT AS CREW CHIEFS
OR IN SOME OTHER CAPACITY IN THE FORESTS.
/9/ SEE DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, DISTRICT
OFFICE, LAKEVIEW, OREGON, A/SLMR NO. 212.
/10/ THE RECORD ALSO DISCLOSES THAT DURING THE FIRE PREVENTION SEASON
HE DIRECTS A CREW OF THREE TO FIVE TEMPORARY EMPLOYEES IN RECREATION
CLEAN-UP.
/11/ THE RECORD REVEALS THAT THE EMPLOYEES UNDER THE AUTHORITY OF THE
FIRE CONTROL TECHNICIAN GENERALLY DO NOT ACCRUE LEAVE.
/12/ THE RECORD INDICATES THAT THERE ARE SEVEN DISTRICT OFFICES
WITHIN THE ACTIVITY AND THAT A TYPICAL DISTRICT OFFICE EMPLOYS
APPROXIMATELY FIVE FORESTRY TECHNICIANS (ONE OF WHOM IS CLASSIFIED AS A
SUPERVISOR).
/13/ ONE EMPLOYEE IN THIS CLASSIFICATION TESTIFIED THAT HE WORKS
ALONGSIDE AND PERFORMS THE SAME DUTIES AS THE EMPLOYEES UNDER HIS
SUPERVISION, WHILE ANOTHER INDICATED THAT HE SPENT ALL OF HIS TIME
SUPERVISING.
/14/ CF. DEPARTMENT OF JUSTICE, U.S. MARSHAL'S SERVICE, NORTHERN
DISTRICT OF ILLINOIS, A/SLMR NO. 197.
/15/ CF. VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH BATTALION, 111TH
ARTILLERY, A/SLMR NO. 69.
/16/ THE TYPICAL DISTRICT OFFICE HAS ONE DISTRICT RANGER CLERK;
HOWEVER, THE RECORD INDICATES THERE ARE INSTANCES WHERE THERE ARE TWO
DISTRICT RANGER CLERKS IN A DISTRICT OFFICE.
/17/ CF. VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH BATTALION, 111TH
ARTILLERY, CITED ABOVE.
/18/ SEE U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE, SCHENCK
CIVILIAN CONSERVATION CENTER, NORTH CAROLINA, CITED ABOVE.
2 A/SLMR 226; P. 590; CASE NO. 41-1900(RO 25); DECEMBER 15, 1972.
UNITED STATES AIR FORCE,
NON-APPROPRIATED FUND ACTIVITIES,
TYNDALL AIR FORCE BASE, FLORIDA
A/SLMR NO. 226
THIS CASE INVOLVES A PETITION FILED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3240 (AFGE), SEEKING A UNIT OF ALL
REGULAR FULL-TIME AND REGULAR PART-TIME EMPLOYEES OF THE
NON-APPROPRIATED FUND (NAF) ACTIVITIES AT TYNDALL AIR FORCE BASE,
FLORIDA. THE AFGE CONTENDED, CONTRARY TO BOTH THE ACTIVITY AND THE
INTERVENOR, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1113 (NFFE),
THAT FIVE EMPLOYEES DESIGNATED AS "UNIT SUPERVISORS" AND CERTAIN
INTERMITTENT EMPLOYEES, INCLUDING 12 EMPLOYEES WHOSE EMPLOYMENT STATUS
HAD BEEN RECENTLY CHANGED TO INTERMITTENT, SHOULD BE INCLUDED IN THE
FUND FOUND APPROPRIATE.
IN FINDING THAT THE CLAIMED UNIT WAS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION, THE ASSISTANT SECRETARY NOTED THAT ALL THE
ACTIVITY'S EMPLOYEES ARE ENGAGED IN A COMMON OVERALL MISSION; WORK
UNDER COMMON SUPERVISION; ARE SUBJECT TO UNIFORM PROMOTION PROCEDURES,
GRIEVANCE PROCEDURES, SICK AND ANNUAL LEAVE, PAY SCALES, WORKING
CONDITIONS, REQUIREMENTS FOR PROMOTION, AND JOB PERFORMANCE
REQUIREMENTS; THE MAJORITY OF THE EMPLOYEES HAVE SIMILAR JOB FUNCTIONS;
AND THE CLAIMED UNIT ENCOMPASSES ALL THE ACTIVITIES COMPRISING THE NAF
AT TYNDALL AIR FORCE BASE.
THE ASSISTANT SECRETARY FOUND THAT THE FIVE EMPLOYEES IN THE
JANITORIAL AND GROUNDS BRANCH OF THE BILLETING FUND, WHO THE ACTIVITY
DESIGNATED AS "UNIT SUPERVISORS," WERE NOT SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER. HE NOTED THAT THE RECORD
REFLECTED THAT THESE EMPLOYEES DID NOT POSSESS THE EFFECTIVE AUTHORITY
TO HIRE, SUSPEND, LAY-OFF, RECALL, PROMOTE, REWARD, OR DISCHARGE OTHER
EMPLOYEES; THAT THEY SPENT A SUBSTANTIAL PORTION OF THE DAY PERFORMING
DUTIES IDENTICAL TO THE OTHER UNIT EMPLOYEES; AND THAT THEIR AUTHORITY
WITH RESPECT TO ASSIGNING AND DIRECTING OTHER UNIT EMPLOYEES WAS OF A
ROUTINE OR CLERICAL NATURE NOT REQUIRING THE USE OF INDEPENDENT
JUDGMENT.
THE ASSISTANT SECRETARY CONCLUDED THE 12 MAIDS NOW EMPLOYED AS
INTERMITTENT EMPLOYEES IN THE BILLETING FUND SHOULD BE INCLUDED IN THE
UNIT FOUND APPROPRIATE AS THESE EMPLOYEES CONTINUE TO WORK ON A REGULAR
BASIS AND UNDER THE SAME CONDITIONS AS WHEN THEY WERE CLASSIFIED AS
REGULAR PART-TIME EMPLOYEES AND AS THEY HAVE A REASONABLE EXPECTANCY OF
CONTINUED EMPLOYMENT. THE ASSISTANT SECRETARY ALSO INCLUDED IN THE UNIT
55 OTHER INTERMITTENTS OF THE ACTIVITY (MANY OF WHOM WERE CLASSIFIED AS
CASUAL OR ON-CALL) BECAUSE THE RECORD REFLECTED THEY WORK ON A REGULAR
BASIS AND PERFORM THE SAME WORK AS REGULAR PART-TIME EMPLOYEES; HAVE
THE SAME WORKING CONDITIONS AND PAY SCALES AS REGULAR EMPLOYEES; IN
MOST INSTANCES, THEY SHARE COMMON SUPERVISION WITH REGULAR EMPLOYEES;
AND A MAJORITY OF THESE EMPLOYEES WORK SUBSTANTIAL PERIODS OF THE TIME
DURING THE YEAR AND HAVE A REASONABLE EXPECTATION OF FUTURE EMPLOYMENT.
THE ASSISTANT SECRETARY DETERMINED THAT THE RECORD DID NOT SUPPORT THE
ACTIVITY'S DESIGNATION OF THE CENTRAL STOREROOM MANAGER, THE JANITOR
LEADER IN THE NON-COMMISSIONED OFFICER'S MESS, THE EMPLOYEE IN CHARGE OF
THE MAINTENANCE AND SUPPLY SECTION IN THE BILLETING FUND, AND THE
ASSISTANT MANAGER AND NIGHT MANAGERS OF THE BOWLING ALLEY AS SUPERVISORS
AND/OR MANAGEMENT OFFICIALS.
ACCORDINGLY, THE ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE UNIT
FOUND APPROPRIATE.
UNITED STATES AIR FORCE,
NON-APPROPRIATED FUND ACTIVITIES,
TYNDALL AIR FORCE BASE, FLORIDA
AND
CASE NO. 42-1900(RO 25)
EMPLOYEES, AFL-CIO, LOCAL 3240
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 113
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER HAZEL M. ELLISON.
THE HEARING OFFICER'S RULING MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
ACTIVITY AND THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3240, HEREIN CALLED AFGE, THE ASSISTANT
SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE AFGE SEEKS AN ELECTION IN A UNIT OF ALL REGULAR FULL-TIME AND
REGULAR PART-TIME EMPLOYEES EMPLOYED BY THE NON-APPROPRIATED FUND (NAF)
ACTIVITIES, TYNDALL AIR FORCE CASE, FLORIDA, EXCLUDING PROFESSIONAL
EMPLOYEES, EMPLOYEES CLASSIFIED AS TEMPORARY, ON-CALL, CASUAL OR
INTERMITTENT, MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS
AND GUARDS AS DEFINED BY THE ORDER. THE AFGE CONTENDED THAT CERTAIN
MAIDS EMPLOYED BY THE BILLETING FUND CLASSIFIED AS INTERMITTENT, WHO
PREVIOUSLY WERE CLASSIFIED AS REGULAR PART-TIME, SHOULD BE INCLUDED IN
ANY UNIT FOUND APPROPRIATE, AND THAT CERTAIN OTHER EMPLOYEES WERE NOT
SUPERVISORS AS DESIGNATED BY THE ACTIVITY.
THE ACTIVITY DID NOT CONTEST THE APPROPRIATENESS OF THE CLAIMED UNIT
BUT ASSERTED THAT ALL INTERMITTENT EMPLOYEES SHOULD BE EXCLUDED FROM THE
UNIT BECAUSE THEY DO NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST WITH OTHER EMPLOYEES. IT CONTENDS ALSO THAT CERTAIN EMPLOYEES
IT HAS DESIGNATED AS SUPERVISORS ARE, IN FACT, SUPERVISORS WITHIN THE
MEANING OF THE ORDER.
THE INTERVENOR, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 113,
HEREIN CALLED NFFE, TOOK NO POSITION REGARDING THE APPROPRIATENESS OF
THE CLAIMED UNIT, BUT AGREED WITH THE ACTIVITY'S CONTENTIONS WITH
RESPECT TO INTERMITTENT EMPLOYEES AND DESIGNATED SUPERVISORS.
FURTHERMORE, THE NFFE ASSERTED THAT THE AGFE'S PETITION WAS INVALID
BECAUSE IT NAMED AS PRESIDENT OF THE AFGE AN ALLEGED SUPERVISOR AND, IN
THIS REGARD, ALL CORRESPONDENCE PRIOR TO THE HEARING WAS DIRECTED TO
THAT INDIVIDUAL. FURTHER, THE NFFE WAS OF THE VIEW THAT DISMISSAL OF
THE AFGE'S PETITION WAS WARRANTED ON THE BASIS THAT THE AFGE FAILED TO
SERVE ITS PETITION SIMULTANEOUSLY ON THE NFFE AS REQUIRED BY THE
ASSISTANT SECRETARY'S REGULATIONS. /1/
THE NAF AT TYNDALL AIR FORCE BASE CONSISTS OF TEN DIFFERENT
ACTIVITIES ALL OF WHICH CONTRIBUTE TO THE OVERALL MISSION OF PROVIDING
FACILITIES WHICH CONTRIBUTE TO THE MORALE, WELFARE, AND RECREATION OF
THE MILITARY PERSONNEL OF THE UNITED STATES AIR FORCE. /2/
THE RECORD REVEALS THAT EACH NAF ACTIVITY AT TYNDALL AIR FORCE BASE
IS HEADED BY A CUSTODIAN WHO IS APPOINTED BY THE BASE COMMANDER. EACH
CUSTODIAN IS RESPONSIBLE ON A DAILY BASIS FOR THE PERSONNEL CONTROL AND
ADMINISTRATION OF HIS ACTIVITY. ALL ACTIVITIES ARE GOVERNED BY THE AIR
FORCE MANUAL FOR NON-APPROPRIATED FUNDS PERSONNEL ADMINISTRATION. THERE
ARE UNIFORM PERSONNEL POLICIES AND PROCEDURES, PROMOTION PLANS, ANNUAL
AND SICK LEAVE CRITERIA, A STANDARD WAGE SYSTEM, AND THE SAME GRIEVANCE
PROCEDURES FOR ALL THE NAF PERSONNEL. FURTHER, ONE OF THE NAF
ACTIVITIES, THE CENTRAL ACCOUNTING OFFICE, PROVIDES CENTRALIZED
BOOKKEEPING AND ACCOUNTING SERVICES FOR THE OTHER COMPONENTS OF THE NAF.
THE RECORD REVEALS THAT OF THE APPROXIMATELY 240 EMPLOYEES OF THE NAF
MOST ARE CLASSIFIED AS MAIDS, JANITORS, WAITRESSES, BARTENDERS,
STEWARDS, OR COOKS; THAT THEIR JOB FUNCTIONS ARE, FOR THE MOST PART,
UNSKILLED OR SEMI-SKILLED; AND THAT THEY CAN BE INTERCHANGED READILY
WITH SIMILARLY SITUATED EMPLOYEES.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE CLAIMED UNIT IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
THUS, ALL OF THE CLAIMED EMPLOYEES ARE ENGAGED IN A COMMON OVERALL
MISSION, WORK UNDER COMMON OVERALL SUPERVISION; AND ARE SUBJECT TO
UNIFORM PROMOTION PROCEDURES, GRIEVANCES PROCEDURES, SICK AND ANNUAL
LEAVE, PAY SCALES, WORKING CONDITIONS, REQUIREMENTS FOR PROMOTION, AND
JOB PERFORMANCE REQUIREMENTS. FURTHER, THE RECORD REVEALS THE MAJORITY
OF THE NAF EMPLOYEES IN THE VARIOUS COMPONENTS OF THE NAF HAVE SIMILAR
JOB FUNCTIONS AND THAT THE CLAIMED UNIT ENCOMPASSES ALL THE ACTIVITIES
COMPRISING THE NAF AT TYNDALL AIR FORCE BASE. /3/ ACCORDINGLY, I FIND
THE EMPLOYEES IN THE PETITIONED FOR UNIT SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THEREFORE, I SHALL DIRECT
AN ELECTION IN THE UNIT SOUGHT.
ELIGIBILITY ISSUES
AS NOTED ABOVE, THE PARTIES DISAGREED WITH RESPECT TO THE ELIGIBILITY
OF INTERMITTENT EMPLOYEES AS WELL AS THE SUPERVISORY STATUS OF CERTAIN
OTHER EMPLOYEES. ALSO, DURING THE COURSE OF THE HEARING, QUESTIONS
CONCERNING THE UNIT PLACEMENT OF CERTAIN OTHER EMPLOYEES WERE RAISED.
BILLETING FUND "UNIT SUPERVISORS"
AS INDICATED ABOVE, ONE OF THE NAF ACTIVITIES AT TYNDALL AIR FORCE
BASE IS THE BILLETING FUND. THE RECORD REVEALS THAT THE BILLETING FUND
HAS FOUR BRANCHES, ONE OF WHICH IS THE JANITORIAL AND GROUNDS BRANCH
HEADED BY A REGULAR FULL-TIME FOREMAN. UNDER THE FOREMAN ARE FIVE
REGULAR PART-TIME EMPLOYEES DESIGNATED AS "UNIT SUPERVISORS," WHO ARE
RESPONSIBLE FOR MAINTAINING CERTAIN GROUNDS AND/OR BUILDINGS. EACH
"UNIT SUPERVISOR" IS ASSISTED BY 6 TO 14 REGULAR PART-TIME AND
INTERMITTENT MAIDS AND JANITORS WHO PRIMARILY ARE ENGAGED IN MAKING
BEDS, CLEANING UP, AND MINOR MAINTENANCE WORK. THE BUILDINGS ARE USED
AS BOTH PERMANENT AND TEMPORARY QUARTERS BY BACHELOR OFFICERS, BACHELOR
NON-COMMISSIONED OFFICERS, MILITARY PERSONNEL ATTENDING SCHOOLS, AND
VARIOUS TRANSIENT MILITARY PERSONNEL.
THE RECORD REVEALS THAT THE FIVE EMPLOYEES IN QUESTION SPEND AT LEAST
2 TO 3 HOURS PER DAY, AND AS MANY AS 5 HOURS, PERFORMING THE SAME WORK
AS OTHER UNIT EMPLOYEES. FURTHER, THE RECORD REVEALS THAT THE WORK
PERFORMED BY UNIT EMPLOYEES IS ROUTINE AND STANDARDIZED AND THAT THE
EMPLOYEES GENERALLY ARE FAMILIAR WITH THEIR TASKS AND REQUIRE MINIMAL
DIRECTION. /4/
THE RECORD REFLECTS ALSO THAT THE AUTHORITY TO HIRE, SUSPEND,
LAY-OFF, RECALL, PROMOTE, REWARD, OR DISCHARGE THE EMPLOYEES IN THE
BRANCH RESTS WITH THE CUSTODIAN OF THE BILLETING FUND UNDER NAF
REGULATIONS; AND THAT WHILE HE HAS DELEGATED SOME OF THIS AUTHORITY TO
THE JANITORIAL AND GROUNDS BRANCH FOREMAN, THERE HAS BEEN NO FORMAL
DELEGATION, IN WRITING OR OTHERWISE, TO THE "UNIT SUPERVISORS."
MOREOVER, AT THE TIME OF THE HEARING IN THIS MATTER, NONE OF THE
EMPLOYEES IN QUESTION HAVE EVALUATED THE PERFORMANCE OF ANY UNIT
EMPLOYEES; AND WHILE THEY MAY BE INVOLVED IN ADJUSTING MINOR EMPLOYEE
PROBLEMS, THE EVIDENCE ESTABLISHES THAT FORMAL GRIEVANCES WOULD BE
HANDLED BY THE FOREMAN OR THE CUSTODIAN.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES DESIGNATED AS
"UNIT SUPERVISORS" IN THE JANITORIAL AND GROUND BRANCH OF THE BILLETING
FUND ARE NOT SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER. THUS, AS NOTED ABOVE, THESE EMPLOYEES SPEND A SUBSTANTIAL
PORTION OF THEIR DAY PERFORMING DUTIES IDENTICAL TO OTHER UNIT
EMPLOYEES, AND THEIR AUTHORITY WITH RESPECT TO ASSIGNING AND DIRECTING
THE WORK OF UNIT EMPLOYEES IS OF A ROUTINE OR CLERICAL NATURE NOT
REQUIRING THE USE OF INDEPENDENT JUDGMENT. FURTHERMORE, THE "UNIT
SUPERVISORS" DO NOT POSSESS EFFECTIVE AUTHORITY TO HIRE, SUSPEND,
LAY-OFF, RECALL, PROMOTE, REWARD, OR DISCHARGE OTHER EMPLOYEES.
ACCORDINGLY, I FIND THAT THE EMPLOYEES IN QUESTION SHOULD BE INCLUDED IN
THE UNIT FOUND APPROPRIATE. /5/
INTERMITTENT EMPLOYEES
THE NAF ACTIVITIES AT TYNDALL AIR FORCE BASE EMPLOY SOME 67 EMPLOYEES
DESIGNATED AS INTERMITTENT. AMONG THE INTERMITTENT EMPLOYEES ARE 12
MAIDS EMPLOYED BY THE BILLETING FUND WHOSE EMPLOYMENT STATUS WAS CHANGED
IN MARCH 1972, FROM THAT OF REGULAR PART-TIME EMPLOYEES TO THAT OF
INTERMITTENT EMPLOYEES. /6/ THE RECORD DISCLOSES THAT WHILE THEIR
EMPLOYEE STATUS WAS CHANGED TO INTERMITTENT THEIR WORKING CONDITIONS
HAVE NOT CHANGED SIGNIFICANTLY FROM WHEN THEY WERE EMPLOYED AS REGULAR
PART-TIME EMPLOYEES. THUS, THESE EMPLOYEES STILL REPORT TO WORK ON A
DAILY BASIS AND WORK ALONGSIDE THE MAIDS WHO RETAINED THEIR REGULAR
PART-TIME STATUS; THEY WORK THE SAME NUMBER OF HOURS AS PRIOR TO THE
CHANGE IN THEIR JOB STATUS; THEIR PAY HAS REMAINED THE SAME (ALTHOUGH
SOME FRINGE BENEFITS THEY RECEIVED FORMERLY AS REGULAR PART-TIME
EMPLOYEES HAVE BEEN CHANGED); AND THEY REMAIN UNDER THE SAME
SUPERVISION AND SHARE A COMMON MISSION WITH REGULAR PART-TIME AND
FULL-TIME EMPLOYEES. /7/
IN MY VIEW, THE RECORD IN THE INSTANT CASE REFLECTS CLEARLY THAT THE
12 MAIDS EMPLOYED BY THE BILLETING FUND, WHO NOW ARE CLASSIFIED AS
INTERMITTENTS, SHOULD BE INCLUDED IN THE UNIT FOUND APPROPRIATE AS THEY
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH OTHER
EMPLOYEES IN THE UNIT FOUND APPROPRIATE. THUS, DESPITE THE CHANGE IN
THEIR JOB CLASSIFICATIONS, THESE EMPLOYEES CONTINUE TO WORK ON A REGULAR
BASIS FOR THE SAME PERIODS OF TIME, UNDER THE SAME CONDITIONS, AND WITH
ESSENTIALLY THE SAME BENEFITS, AS WHEN THEY WERE CLASSIFIED AS REGULAR
PART-TIME EMPLOYEES. FURTHERMORE, THE RECORD SHOWS THAT THEY HAVE A
REASONABLE EXPECTANCY OF CONTINUED EMPLOYMENT. ACCORDINGLY, THE MAIDS
CLASSIFIED AS "INTERMITTENT" EMPLOYEES OF THE BILLETING FUND SHOULD BE
INCLUDED IN THE UNIT FOUND APPROPRIATE. /8/
MOREOVER, THE RECORD REVEALS THAT THE REMAINING 55 INTERMITTENT
EMPLOYEES OF THE NAF ACTIVITIES (MANY OF WHOM ARE CLASSIFIED AS CASUAL
OR ON-CALL) ALSO WORK ON A REGULAR BASIS AND PERFORM THE SAME WORK AS
REGULAR FULL-TIME AND REGULAR PART-TIME EMPLOYEES; THAT THEY HAVE THE
SAME WORKING CONDITIONS AND PAY SCALES AS REGULAR EMPLOYEES; THAT, IN
MOST INSTANCES, THEY SHARE COMMON SUPERVISION WITH REGULAR EMPLOYEES;
AND THAT A MAJORITY OF THESE INTERMITTENT EMPLOYEES WORK SUBSTANTIAL
PERIODS OF TIME DURING THE YEAR AND HAVE A REASONABLE EXPECTATION OF
FUTURE EMPLOYMENT. ACCORDINGLY, I SHALL INCLUDE ALSO THESE INTERMITTENT
EMPLOYEES IN THE UNIT FOUND APPROPRIATE.
OTHER ELIGIBILITY ISSUES
THE ACTIVITY AND THE AFGE CONTEND THAT THE CENTRAL STOREROOM MANAGER
OF THE OFFICER'S OPEN MESS IS A MANAGEMENT OFFICIAL, WHILE THE NFFE
CONTENDS THE EMPLOYEE DOES NOT INFLUENCE POLICY. THE RECORD DISCLOSES
THAT THE EMPLOYEE IN THIS CLASSIFICATION ORDERS AND DISPENSES SUPPLIES
FOR THE OFFICER'S OPEN MESS, BUT THAT SUCH WORK IS DEPENDENT ON THE
NEEDS OF THE OPEN MESS AND IS PERFORMED STRICTLY IN CONFORMITY WITH AIR
FORCE REGULATIONS. FURTHER, THERE IS NO EVIDENCE THAT THE EMPLOYEE
MAKES OR INFLUENCES THE MAKING OF POLICY. UNDER THESE CIRCUMSTANCES, I
FIND THAT THE CENTRAL STOREROOM MANAGER IS NOT A MANAGEMENT OFFICIAL
WITHIN THE MEANING OF THE ORDER AND, THEREFORE, SHOULD NOT BE EXCLUDED
FROM THE UNIT FOUND APPROPRIATE ON SUCH A BASIS. /9/
THE ACTIVITY AND THE AFGE ASSERT ALSO, CONTRARY TO THE NFFE, THAT THE
EMPLOYEE OCCUPYING THE POSITION OF JANITOR LEADER IN THE
NON-COMMISSIONED OFFICER'S MESS IS A SUPERVISOR AND SHOULD BE EXCLUDED
FROM THE UNIT FOUND APPROPRIATE. THE RECORD REVEALS THERE ARE THREE
JANITORS WORKING UNDER THE JANITOR LEADER. HOWEVER, THE RECORD REVEALS
FURTHER THAT THE JANITOR LEADER SPENDS THE MAJORITY OF HIS TIME
PERFORMING IN VARIOUS JOB FUNCTIONS, INCLUDING THE SAME WORK PERFORMED
BY THE OTHER JANITORS; THAT THE WORK PERFORMED BY THE OTHER JANITORS IS
ROUTINE AND STANDARDIZED AND REQUIRES LITTLE DIRECTION FROM THE LEADER;
THAT THE EFFECTIVE AUTHORITY WITH RESPECT TO HIRING, FIRING, SUSPENDING,
OR PROMOTING THE JANITORS RESIDES IN THE CUSTODIAN OF THE
NON-COMMISSIONED OFFICER'S MESS; THAT ANNUAL LEAVE IS GRANTED ONLY IF
APPROVED BY THE CUSTODIAN; THAT THE RATING FORM FILLED OUT BY THE
LEADER IS OF A SIMPLE CHECK-OFF TYPE; AND THAT HE HAS NEVER GIVEN AN
UNSATISFACTORY RATING. IN ALL THE CIRCUMSTANCES, I FIND THE JANITOR
LEADER IS, AT MOST, A WORK LEADER AND IS NOT A "SUPERVISOR" WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER. ACCORDINGLY, I FIND THAT HE
SHOULD BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
THE ACTIVITY AND THE AFGE CONTEND THAT THE EMPLOYEE IN CHARGE OF THE
MAINTENANCE AND SUPPLY SECTION IN THE BILLETING FUND SHOULD BE EXCLUDED
FROM THE UNIT AS A SUPERVISOR. THE RECORD REVEALS THAT WHILE TWO
POSITIONS ARE AUTHORIZED UNDER THE EMPLOYEE IN QUESTION, ONLY ONE
POSITION HAS BEEN FILLED. THE NFFE CONTENDS THAT THE EMPLOYEE IS NOT A
SUPERVISOR BECAUSE HE EXERCISES AUTHORITY OVER ONLY ONE EMPLOYEE. AS
THE EMPLOYEE IN CHARGE OF THE MAINTENANCE AND SUPPLY SECTION IN THE
BILLETING FUND EXERCISES AUTHORITY WITH RESPECT TO ONLY ONE EMPLOYEE, I
FIND THAT HE IS NOT A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER. /10/
THE ACTIVITY CONTENDS THAT THE ASSISTANT MANAGER AND THE THREE NIGHT
MANAGERS OF THE BOWLING ALLEY IN THE CENTRAL BASE FUND ARE SUPERVISORS
AND/OR MANAGERIAL EMPLOYEES. THE RECORD REVEALS THAT THE CUSTODIAN OF
THE BILLETING FUND HAS DELEGATED TO THE MANAGER OF THE BOWLING ALLEY
(WHO IS NOT A NAF EMPLOYEE) THE AUTHORITY TO HIRE, FIRE, REPRIMAND,
SUSPEND, RATE, AND PROMOTE THE EMPLOYEES OF THE BOWLING ALLEY AND THERE
IS NO EVIDENCE THIS AUTHORITY HAS BEEN DELEGATED TO THE ASSISTANT
MANAGER OR THE NIGHT MANAGERS BY THE MANAGER. FURTHERMORE, THE
ASSISTANT MANAGER AND THE NIGHT MANAGERS (WHO ARE OFF-DUTY MILITARY
PERSONNEL) SPEND THE MAJORITY OF THEIR TIME WORKING AT THE CUSTOMER
DESK, WHILE THE MANAGER HAS FULL RESPONSIBILITY FOR THE OPERATION OF THE
BOWLING ALLEY. AS THERE IS NO EVIDENCE THAT THE ASSISTANT MANAGER OR
NIGHT MANAGERS EXERCISE SUPERVISORY AUTHORITY OVER OTHER EMPLOYEES OR
MEET THE CRITERIA ESTABLISHED FOR MANAGEMENT OFFICIALS, I FIND THAT THE
ASSISTANT MANAGER AND THE THREE NIGHT MANAGERS OF THE BOWLING ALLEY
SHOULD BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
BASED ON THE FOREGOING, I FIND THE FOLLOWING EMPLOYEES OF THE
ACTIVITY CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL REGULAR FULL-TIME, REGULAR PART-TIME AND INTERMITTENT EMPLOYEES
(INCLUDING THOSE
CLASSIFIED AS CASUAL AND ON-CALL), INCLUDING OFF-DUTY MILITARY
PERSONNEL IN ANY OF THE
FOREGOING CATEGORIES, /11/ EMPLOYED BY THE NON-APPROPRIATED FUND
ACTIVITIES, TYNDALL AIR
FORCE BASE, FLORIDA; EXCLUDING PROFESSIONAL EMPLOYEES, /12/
EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, AND SUPERVISORS
/13/ AND GUARDS AS DEFINED IN THE ORDER. /14/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO ARE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN MILITARY
SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE
EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3240; OR BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1113; OR BY NEITHER.
DATED, WASHINGTON, D.C.
DECEMBER 15, 1972
/1/ UNDER THE CIRCUMSTANCES, I FIND THAT DISMISSAL OF THE AFGE'S
POSITION BASED ON ITS FAILURE TO SERVE THE NFFE SIMULTANEOUSLY WITH SUCH
PETITION IS UNWARRANTED. THUS, THE RECORD REVEALS THAT THE NFFE IS NOT
CURRENTLY, AND NEVER HAS BEEN, THE EXCLUSIVE REPRESENTATIVE OF THE
EMPLOYEES IN THE CLAIMED UNIT. FURTHER, THERE IS NO EVIDENCE THAT THE
AFGE WAS AWARE OF ANY INTEREST BY THE NFFE IN THE CLAIMED EMPLOYEES. AS
THERE IS NO EVIDENCE INDICATING THAT THE NFFE WAS A KNOWN INTERESTED
PARTY IN THE PETITIONED FOR UNIT, THERE WAS NO REQUIREMENT THAT IT BE
SERVED WITH A COPY OF THE PETITION UNDER THE ASSISTANT SECRETARY'S
REGULATIONS. MOREOVER, IT SHOULD BE NOTED THAT THE NFFE INTERVENED
TIMELY AND FULLY PARTICIPATED IN THIS PROCEEDING.
/2/ THE NAF ACTIVITIES AT TYNDALL AIR FORCE BASE ARE THE BILLETING
FUND; THE CENTRAL BASE FUND; THE AERO CLUB; THE CENTRAL ACCOUNTING
OFFICE; THE NON-COMMISSIONED OFFICERS OPEN MESS; THE OFFICERS OPEN
MESS; THE NURSERY; THE PRE-KINDERGARTEN; THE SADDLE CLUB; AND THE
YACHT CLUB. THE LATTER TWO ACTIVITIES HAVE NO EMPLOYEES ON THEIR
PAYROLLS.
/3/ COMPARE UNITED STATES AIR FORCE, DEPARTMENT OF DEFENSE,
NON-APPROPRIATED FUND ACTIVITIES, 4756TH AIR BASE GROUP, TYNDALL AIR
FORCE BASE, FLORIDA, A/SLMR NO. 124.
/4/ FOR EXAMPLE, MAIDS HAVE A REGULARLY ASSIGNED BUILDING TO WHICH
THEY REPORT EACH MORNING. WHEN A NEW MAID IS HIRED SHE IS ASSIGNED TO
ONE OF THE MORE EXPERIENCED MAIDS TO LEARN THE JOB, RATHER THAN BEING
TRAINED BY HER "UNIT SUPERVISOR." THE RECORD REVEALS THAT, IN MOST
INSTANCES, THE ONLY REGULAR CONTACT THE "UNIT SUPERVISOR" HAS WITH UNIT
EMPLOYEES IS WHEN THE FORMER IS WORKING WITH THEM.
/5/ IN VIEW OF MY FINDING THAT "UNIT SUPERVISORS" ARE NOT SUPERVISORS
WITHIN THE MEANING OF THE ORDER, FURTHER CONSIDERATION OF THE QUESTION
RAISED BY THE NFFE CONCERNING THE OFFICIAL STATUS OF ONE OF THESE
EMPLOYEES IN THE AFGE WAS DEEMED UNWARRANTED.
/6/ UNDER NAF REGULATIONS, REGULAR PART-TIME EMPLOYEES HAVE A
REGULARLY ASSIGNED TOUR OF 20 OR MORE HOURS BUT LESS THAN 35 HOURS PER
WEEK. INTERMITTENT EMPLOYEES HAVE (1) A REGULARLY ASSIGNED TOUR OF LESS
THAN 20 HOURS, OR (2) NO REGULARLY ASSIGNED HOURS OF DUTY AND ARE HIRED
FOR JOBS ON A "CASUAL," "AS REQUIRED," OR "ON-CALL" BASIS.
/7/ WHILE THE ACTIVITY CONTENDED THAT WHEN ITS BUSY SEASON ENDS THESE
EMPLOYEES WILL NOT WORK ON A REGULAR BASIS, IT ACKNOWLEDGED THAT THERE
WAS NO FORSEEABLE TERMINATION DATE FOR THESE EMPLOYEES.
/8/ CF. UNITED STATES ARMY INFANTRY CENTER, NON-APPROPRIATED FUND
ACTIVITY FORT BENNING, GEORGIA, A/SLMR NO. 188.
/9/ CF. DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
A/SLMR NO. 135.
/10/ SEE UNITED STATES DEPARTMENT OF AGRICULTURE, NORTHERN MARKETING
AND NUTRITION RESEARCH DIVISION, PEORIA, ILLINOIS, A/SLMR NO. 120.
/11/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, FORT HUACHUCA EXCHANGE
SERVICE, FORT HUACHUCA, ARIZONA, A/SLMR NO. 167.
/12/ THE PARTIES STIPULATED, AND I FIND, THAT THREE PRE-KINDERGARTEN
TEACHERS ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE ORDER.
/13/ THE PARTIES STIPULATED AND THE RECORD ESTABLISHES THAT THE
EMPLOYEES WHO OCCUPY THE POSITION OF HEAD CHEF IN THE OFFICERS OPEN
MESS; GOLF COURSE PRO IN THE CENTRAL BASE FUND; HEAD STEWARD, HOSTESS,
HEAD CHEF, AND ANNEX STEWARD OF THE NON-COMMISSIONED OFFICERS OPEN MESS;
AND ADMINISTRATIVE ASSISTANT, JANITORIAL AND GROUND FOREMAN OF THE
BILLETING FUND ARE SUPERVISORS AND/OR MANAGEMENT OFFICIALS WITHIN THE
MEANING OF EXECUTIVE ORDER 11491, AS AMENDED. IN ADDITION, THE PARTIES
STIPULATED AND THE RECORD ESTABLISHES THAT THE EMPLOYEES OCCUPYING THE
POSITION OF JANITORIAL SERVICES SUPERVISOR AND HEAD STEWARD IN THE
OFFICERS OPEN MESS; MARINA MANAGER OF THE CENTRAL BASE FUND;
SUPERVISOR IN THE NURSERY; SUPERVISOR OF BOOKKEEPING IN THE CENTRAL
BASE FUND; AND MANAGER OF THE AERO CLUB ARE SUPERVISORS AND/OR
MANAGEMENT OFFICIALS. UNDER THESE CIRCUMSTANCES, I FIND THAT EMPLOYEES
IN THE FOREGOING CLASSIFICATIONS SHOULD BE EXCLUDED FROM THE UNIT FOUND
APPROPRIATE.
/14/ WHILE THE PARTIES AGREED TO EXCLUDE "TEMPORARY" EMPLOYEES FROM
THE UNIT, AND DEFINED TEMPORARY EMPLOYEES AS THOSE LIMITED TO A TENURE
OF 90 DAYS, THE RECORD REFLECTED THAT, IN FACT, NO "TEMPORARY" EMPLOYEES
ARE WORKING CURRENTLY AT THE ACTIVITY. IN THESE CIRCUMSTANCES, I MAKE
NO FINDING WITH RESPECT TO "TEMPORARY" EMPLOYEES. SEE ALASKAN EXCHANGE
SYSTEM, BASE EXCHANGE, FORT GREELY, ALASKA, A/SLMR NO. 33 AND ARMY AND
AIR FORCE EXCHANGE SERVICE, GOLDEN GATE EXCHANGE REGION, STORAGE AND
DISTRIBUTION BRANCH, NORTON AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 190.
/15/ THE RECORD IN THE SUBJECT CASE IS UNCLEAR AS TO WHETHER THE
INCLUSION OF THE "UNIT SUPERVISORS" IN THE JANITORIAL AND GROUNDS BRANCH
OF THE BILLETING FUND AND OF INTERMITTENT EMPLOYEES IN THE PETITIONED
FOR UNIT RENDERS INADEQUATE THE AFGE'S SHOWING OF INTEREST.
ACCORDINGLY, BEFORE PROCEEDING TO AN ELECTION IN THE SUBJECT CASE, THE
APPROPRIATE AREA ADMINISTRATOR IS DIRECTED TO REEVALUATE THE SHOWING OF
INTEREST. IF HE DETERMINES THAT, BASED ON THE INCLUSION OF THE
ABOVE-NAMED EMPLOYEES, THE AFFE'S SHOWING OF INTEREST IS INADEQUATE, THE
PETITION IN THIS CASE SHOULD BE DISMISSED.
2 A/SLMR 225; P. 587; CASE NO. 50-4752; DECEMBER 14, 1972.
ILLINOIS AIR NATIONAL GUARD,
182ND TACTICAL AIR SUPPORT GROUP
A/SLMR NO. 225
ON OCTOBER 29, 1971, THE ASSISTANT SECRETARY ISSUED A DECISION AND
ORDER IN A/SLMR NO. 105 DISMISSING THE CLARIFICATION OF UNIT PETITION
AND DIRECTING THE APPROPRIATE AREA ADMINISTRATOR TO REVOKE THE
CERTIFICATION OF REPRESENTATIVE ISSUED TO THE ILLINOIS AIR CHAPTER,
ASSOCIATION OF CIVILIAN TECHNICIANS, INC. (ACT) BASED ON THE VIEW THAT
THE ACT HAD IMPROPERLY ABUSED THE ELECTION PROCESS BY SEEKING TO INCLUDE
IN THE UNIT CERTAIN INDIVIDUALS WHO IT PREVIOUSLY HAD AGREED WERE
SUPERVISORS.
ON NOVEMBER 17, 1972, THE FEDERAL LABOR RELATIONS COUNCIL FOUND THAT
THE BASIS FOR THE ASSISTANT SECRETARY'S DECISION TO REVOKE THE
CERTIFICATION OF REPRESENTATIVE WAS INCONSISTENT WITH THE PURPOSES OF
THE ORDER AND, THEREFORE, IT SHOULD BE SET ASIDE.
PURSUANT TO THE DECISION ON APPEAL OF THE FEDERAL LABOR RELATIONS
COUNCIL, THE ASSISTANT SECRETARY VACATED HIS ORDER TO THE APPROPRIATE
AREA ADMINISTRATOR TO REVOKE THE ACT'S CERTIFICATION AND DIRECTED THE
APPROPRIATE AREA ADMINISTRATOR TO REINSTATE SUCH CERTIFICATION.
ILLINOIS AIR NATIONAL GUARD,
182ND TACTICAL AIR SUPPORT GROUP
AND
ILLINOIS AIR CHAPTER, ASSOCIATION
OF CIVILIAN TECHNICIANS, INC.
ON OCTOBER 29, 1971, I ISSUED A DECISION AND ORDER IN A/SLMR NO. 105
DISMISSING THE CLARIFICATION OF UNIT PETITION AND DIRECTING THE
APPROPRIATE AREA ADMINISTRATOR TO REVOKE THE CERTIFICATION OF
REPRESENTATIVE ISSUED TO THE ILLINOIS AIR CHAPTER, ASSOCIATION OF
CIVILIAN TECHNICIANS, INC., HEREIN CALLED ACT.
ON NOVEMBER 17, 1972, THE FEDERAL LABOR RELATIONS COUNCIL ISSUED ITS
DECISION ON APPEAL IN THE SUBJECT CASE FINDING, AMONG OTHER THINGS, THAT
IN THE CIRCUMSTANCES THE BASIS FOR THE ASSISTANT SECRETARY'S DECISION TO
REVOKE THE CERTIFICATION OF THE ACT WAS INCONSISTENT WITH THE PURPOSES
OF THE ORDER AND, THEREFORE, IT SHOULD BE SET ASIDE. IN THIS REGARD,
THE FEDERAL LABOR RELATIONS COUNCIL REMANDED THE CASE TO THE ASSISTANT
SECRETARY FOR APPROPRIATE ACTION CONSISTENT WITH ITS DECISION.
PURSUANT TO THE DECISION ON APPEAL OF THE FEDERAL LABOR RELATIONS
COUNCIL, MY ORDER DIRECTING THE APPROPRIATE AREA ADMINISTRATOR TO REVOKE
THE ACT'S CERTIFICATION IS HEREBY VACATED AND THE APPROPRIATE AREA
ADMINISTRATOR IS DIRECTED TO REINSTATE SUCH CERTIFICATION.
DATED, WASHINGTON, D.C.
DECEMBER 14, 1972
ILLINOIS AIR NATIONAL GUARD,
182ND TACTICAL AIR SUPPORT GROUP
AND
ILLINOIS AIR CHAPTER, ASSOCIATION
OF CIVILIAN TECHNICIANS, INC.
THIS APPEAL AROSE FROM A DECISION OF THE ASSISTANT SECRETARY WHICH
DISMISSED THE UNIT CLARIFICATION PETITION FILED BY THE ILLINOIS AIR
CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INC.(HEREIN CALLED THE
UNION); AND WHICH REVOKED THE UNION'S CERTIFICATION OF REPRESENTATIVE
IN A BARGAINING UNIT COMPOSED OF THE ACTIVITY'S AIR NATIONAL GUARD
TECHNICIANS EMPLOYED AT PEORIA, ILLINOIS. A BRIEF STATEMENT OF THE
NECESSARY FACTS IS SET FORTH BELOW.
ON JUNE 25, 1970, A REPRESENTATION ELECTION WAS CONDUCTED AMONG THE
ACTIVITY'S AIR NATIONAL GUARD TECHNICIANS. THE ELECTION WAS CONDUCTED
PURSUANT TO A CONSENT AGREEMENT ENTERED INTO BY THE PARTIES AND APPROVED
BY THE ASSISTANT SECRETARY'S AREA ADMINISTRATOR. THE TALLY OF BALLOTS
ISSUED AFTER THE COUNTING OF THE BALLOTS DISCLOSED THAT THE ELECTION
RESULTS WERE INCONCLUSIVE SINCE THE VOTES CAST FOR THE UNION (46) DID
NOT CONSTITUTE THE REQUIRED MAJORITY OF THE TOTAL OF VALID VOTES CAST
(82) PLUS CHALLENGED BALLOTS (25).
SUBSEQUENTLY, ON JULY 2, 1970, THE UNION AND THE ACTIVITY STIPULATED,
IN WRITING, THAT 16 OF THE CHALLENGED VOTERS WERE SUPERVISORS WITHIN THE
MEANING OF THE ORDER. THE PARTIES' STIPULATION RESOLVING THE STATUS OF
15 OF THE AFOREMENTIONED CHALLENGED VOTERS STATED:
IT IS HEREBY JOINTLY STIPULATED BY THE PARTIES CONCERNED THAT THE
FOLLOWING NAMED
INDIVIDUALS ARE CERTIFIED TO BE SUPERVISORS, AS DEFINED BY SECTION
2(C), "GENERAL
PROVISIONS," EXECUTIVE ORDER 11491 AND THEREFORE EXCLUDED FROM
REPRESENTATION BY SUBJECT LABOR
ORGANIZATION AND ALSO NOT ELIGIBLE TO VOTE IN THE INSTANT
CERTIFICATION OF
REPRESENTATIVES. IT IS FURTHER STIPULATED AS A RESULT OF THE
FOREGOING, THE CHALLENGED
BALLOTS AS CAST BY THE BELOW NAMED INDIVIDUALS SHOULD BE EXCLUDED
FROM THE TALLY OF BALLOTS
. . . /1/
BASED UPON A REVISED TALLY OF BALLOTS WHICH REFLECTED THESE
STIPULATIONS, THE AREA ADMINISTRATOR THEN DETERMINED THAT THE UNION HAD
RECEIVED A MAJORITY OF THE VALID VOTES CAST AND THAT THE REMAINING
UNRESOLVED CHALLENGED BALLOTS WERE NOT DETERMINATIVE. ON JULY 8, 1970,
HE CERTIFIED THE UNION AS EXCLUSIVE BARGAINING REPRESENTATIVE FOR THE
SUBJECT BARGAINING UNIT.
ON SEPTEMBER 25, 1970, THE ACTIVITY NOTIFIED THE UNION, BY LETTER,
THAT IT CONSIDERED 29 NAMED EMPLOYEES TO BE SUPERVISORS WITHIN THE
MEANING OF THE ORDER AND THEREBY PROPOSED TO EXCLUDE THEM FROM THE
BARGAINING UNIT. THIS TOTAL WAS COMPRISED OF 14 OF THE 16 PERSONS
PREVIOUSLY STIPULATED TO BE SUPERVISORS, 7 OF THE 9 UNRESOLVED
CHALLENGED VOTERS, AND 8 PERSONS WHOSE STATUS PREVIOUSLY HAD NOT BEEN IN
ISSUE.
THE UNION THEREUPON FILED THE UNIT CLARIFICATION PETITION HERE
INVOLVED WITH THE ASSISTANT SECRETARY, ON OCTOBER 8, 1970, WHICH SOUGHT
CLARIFICATION OF THE STATUS OF THE 29 PERSONS CLAIMED TO BE SUPERVISORS
BY THE ACTIVITY. PURSUANT TO THE UNION'S PETITION, A HEARING WAS
CONDUCTED BY A HEARING OFFICER OF THE ASSISTANT SECRETARY IN WHICH BOTH
THE ACTIVITY AND THE UNION PRESENTED EVIDENCE BEARING UPON THE ALLEGED
SUPERVISORY STATUS OF THE 29 INDIVIDUALS NAMED IN THE ACTIVITY'S LETTER
OF SEPTEMBER 25, 1970.
THE ASSISTANT SECRETARY ISSUED HIS DECISION ON OCTOBER 29, 1971, AND
FOUND THAT THE UNION HAD ATTEMPTED TO NEGATE THE STIPULATIONS BY WHICH
IT HAD OBTAINED ITS CERTIFICATION OF REPRESENTATIVE BY FILING THE UNIT
CLARIFICATION PETITION. THE ASSISTANT SECRETARY CONCLUDED THAT THE UNION
HAD ENTERED INTO "SHAM STIPULATIONS" FOR THE SAKE OF EXPEDIENCY AND THAT
ITS CONDUCT CONSTITUTED FLAGRANT DISREGARD OF HIS ESTABLISHED PROCEDURE
FOR THE RESOLUTION OF DETERMINATIVE CHALLENGED BALLOTS. UPON THE
FOREGOING BASIS, THE ASSISTANT SECRETARY DISMISSED THE UNIT
CLARIFICATION PETITION, AND, FURTHER, ORDERED THAT THE UNION'S
CERTIFICATION OF REPRESENTATIVE BE REVOKED "BECAUSE OF THE SUBSTANTIAL
DOUBT WHICH HAS NOW BEEN CAST UPON THE VALIDITY OF THE PRIOR
CERTIFICATION OF REPRESENTATIVE." (THE ASSISTANT SECRETARY MADE NO
DETERMINATION AS TO THE SUPERVISORY STATUS OF THE DISPUTED INDIVIDUALS.)
THE UNION PETITIONED THE COUNCIL FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION. THE COUNCIL, ON JUNE 22, 1972, ACCEPTED THE
PETITION FOR REVIEW HAVING DETERMINED THAT MAJOR POLICY ISSUES WERE
PRESENTED BY THE ASSISTANT SECRETARY'S DECISION. A BRIEF WAS FILED
TIMELY BY THE UNION WHICH HAS BEEN DULY CONSIDERED. NO SUBMISSION WAS
MADE BY THE AGENCY.
THE UNION ARGUES THAT: (1) THE FILING OF ITS UNIT CLARIFICATION
PETITION WAS PROPER UNDER THE ASSISTANT SECRETARY'S REGULATIONS; (2) IT
DID NOT ENTER INTO SHAM STIPULATIONS OR ATTEMPT TO EVADE PRESCRIBED
PROCEDURES OF THE ASSISTANT SECRETARY; (3) THE ASSISTANT SECRETARY
FAILED TO NOTE THAT "THE ACTIVITY WAS THE INITIATING PARTY IN THE
SETTING ASIDE OF ELECTION STIPULATIONS"; (4) "THE ASSISTANT SECRETARY
MADE A PUNITIVE DECISION DEPRIVING THE (UNION) OF EXCLUSIVE
CERTIFICATION . . . WITHOUT CAUSE, AND IN DOING SO DEPRIVED THE
EMPLOYEES OF PROPER COVERAGE OF THE ORDER"; AND (5) THE ASSISTANT
SECRETARY'S DECISION FAILED TO PROVIDE A "RULING ON THE UNIT
APPROPRIATENESS AND THEREFORE DID NOT ESTABLISH REASON FOR SETTING ASIDE
THE RESULTS OF A SECRET BALLOT ELECTION AS PROVIDED FOR IN THE ORDER."
THE UNION REQUESTS THAT THEIR CERTIFICATION BE RETURNED AS OF THE DATE
OF REVOCATION.
THE ISSUE BEFORE THE COUNCIL IS WHETHER, IN THE CIRCUMSTANCES OF THIS
CASE, THE PURPOSES AND POLICIES OF THE ORDER HAVE BEEN EFFECTUATED BY
THE ASSISTANT SECRETARY'S DISMISSAL OF THE UNION'S PETITION FOR UNIT
CLARIFICATION AND REVOCATION OF ITS CERTIFICATION OF REPRESENTATIVE.
THE ASSISTANT SECRETARY, AS DETAILED ABOVE, FOUND THAT SUCH ACTION WAS
WARRANTED BECAUSE OF THE IMPROPER CONDUCT AND MOTIVATION WHICH HE
IMPUTED TO THE UNION.
ALTHOUGH WE SUSTAIN THE ASSISTANT SECRETARY'S DISMISSAL OF THE UNIT
CLARIFICATION PETITION, WE DISAGREE, FOR REASONS INDICATED BELOW, THAT
THE REVOCATION OF THE UNION'S CERTIFICATION OF REPRESENTATIVE WAS
WARRANTED HEREIN UPON THE GROUNDS CITED BY THE ASSISTANT SECRETARY.
SECTION 6 OF EXECUTIVE ORDER 11491 PROVIDES, IN PERTINENT PART, THAT
THE ASSISTANT SECRETARY SHALL-- "(1) DECIDE QUESTIONS AS TO THE
APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND RELATED
ISSUES SUBMITTED FOR HIS CONSIDERATION; AND (2) SUPERVISE ELECTIONS TO
DETERMINE WHETHER A LABOR ORGANIZATION IS THE CHOICE OF A MAJORITY OF
THE EMPLOYEES IN AN APPROPRIATE UNIT AS THEIR EXCLUSIVE REPRESENTATIVE,
AND CERTIFY THE RESULTS . . . " THE ASSISTANT SECRETARY MUST INSURE
THAT, IN THE EXERCISE OF THESE RESPONSIBILITIES, THE RIGHTS GUARANTEED
FEDERAL EMPLOYEES UNDER SECTION 1(A) ARE PRESERVED.
TO ASSIST IN THE CARRYING OUT OF HIS FUNCTIONS UNDER THE ORDER THE
ASSISTANT SECRETARY HAS ESTABLISHED BY REGULATION PROCEDURES WHEREBY
QUESTIONS AS TO APPROPRIATE UNIT AND RELATED ISSUES CAN BE RESOLVED.
THIS CAN BE DONE IN TWO WAYS. WHERE THERE IS A DISPUTE, THE FACTS ARE
DETERMINED THROUGH THE HEARING PROCESS WITH ALL THE SAFEGUARDS AND
OPPORTUNITIES FOR DUE PROCESS THAT ACCOMPANY A HEARING. THE OTHER
METHOD IS THROUGH THE USE OF CONSENSUAL AGREEMENTS BETWEEN THE PARTIES.
FOR EXAMPLE, CONSENT ELECTION AGREEMENTS AS AUTHORIZED BY THOSE
REGULATIONS PROVIDE A USEFUL AND TIMESAVING TOOL FOR PERMITTING AN
ELECTION WHEN IT DOES NOT APPEAR THAT THE PARTIES ARE IN DISPUTE OVER
THE APPROPRIATE UNIT AND INCLUSIONS AND EXCLUSIONS IN THE UNIT.
SIMILARLY, THROUGHOUT THE PROCESSING OF A REPRESENTATION PETITION THERE
ARE OCCASIONS WHEN STIPULATIONS ARE PROPERLY USED TO DISPOSE OF
UNDISPUTED MATTERS.
REGARDLESS OF THE METHOD USED TO ESTABLISH THE FACTS, THE ASSISTANT
SECRETARY MUST INSURE THAT THE INTERESTS OF THE EMPLOYEES ARE PROTECTED.
CERTAINLY SINCE A STIPULATION REPLACES FULL LITIGATION OF AN ISSUE, THE
ASSISTANT SECRETARY MUST OBTAIN REASONABLE ASSURANCE PRIOR TO ACCEPTANCE
THAT THE STIPULATION ACCURATELY REPRESENTS THE FACTS AND DOES NOT
OPERATE TO DENY RIGHTS GUARANTEED BY THE ORDER.
FURTHER, WHERE DOUBT CONCERNING THE APPROPRIATENESS OF AN ALREADY
ACCEPTED STIPULATION ARISES, THE ASSISTANT SECRETARY HAS THE AUTHORITY
TO VACATE HIS APPROVAL OF THE STIPULATION SO THAT A NEW DETERMINATION
CAN BE MADE ON THE SUBJECT MATTER.
WE VIEW THIS AS NO LESS TRUE EVEN IF A CERTIFICATION HAS ALREADY BEEN
ISSUED. WHEN THE ASSISTANT SECRETARY HAS SUFFICIENT REASON TO BELIEVE
THAT A STIPULATION ENTERED INTO BY THE PARTIES IS CONTRARY TO THE
INTEREST OF EMPLOYEES OR OTHERWISE INCONSISTENT WITH THE PURPOSES OF THE
ORDER, HE MAY REVOKE A CERTIFICATION WHICH WAS PREMISED ON THE
STIPULATION.
IN THE INSTANT CASE THE FILING OF THE CLARIFICATION PETITION APPEARS
TO HAVE RAISED VOTER ELIGIBILITY QUESTIONS SUFFICIENT IN NUMBER TO
AFFECT THE OUTCOME OF THE ELECTION, NOTWITHSTANDING THE FACT THAT THE
PARTIES' STIPULATIONS PURPORTED TO RESOLVE THE "DETERMINATIVE"
CHALLENGED BALLOTS. WE AGREE THAT IN SUCH CIRCUMSTANCES THE ASSISTANT
SECRETARY MAY, IF HE SHOULD SO DECIDE, EXAMINE QUESTIONS OF VOTER
ELIGIBILITY BY SUCH MEANS AS ADMINISTRATIVE INVESTIGATION OR FORMAL
HEARING FOR THE PURPOSE OF DETERMINING WHETHER THE CERTIFICATION SHOULD
BE REVOKED. HOWEVER, WE VIEW AS INCONSISTENT WITH THE PURPOSES OF THE
ORDER THE PUNITIVE REVOCATION OF THE CERTIFICATION SOLELY BECAUSE A
PARTY MAY HAVE TAKEN SOME ACTION WHICH CASTS DOUBT ON THE VALIDITY OF
THE EARLIER STIPULATION.
ACCORDINGLY, WHILE WE HEAVE TO THE DISCRETION AND JUDGMENT OF THE
ASSISTANT SECRETARY WHETHER HE WILL EXAMINE THE MERITS OF THE CHALLENGED
BALLOTS AND, IF SO, BY WHAT MEANS HE WILL CONDUCT SUCH EXAMINATION, WE
OVERRULE THE REVOCATION OF THE CERTIFICATION INSOFAR AS SUCH ACTION WAS
TAKEN BECAUSE THE UNION TOOK ACTIONS INCONSISTENT WITH ITS PRIOR
STIPULATION.
WITH RESPECT TO THE DISMISSAL OF THE CLARIFICATION PETITION, THE
UNION DOES NOT CHALLENGE THE AUTHORITY OF THE ASSISTANT SECRETARY TO
TAKE SUCH ACTION, ALTHOUGH IT DOES NOT AGREE THAT IT SERVES THE PURPOSES
OF THE ORDER OR OF DETERMINATIVE PROCEDURE. HOWEVER, WE SEE NOTHING
ARBITRARY OR CAPRICIOUS OR INCONSISTENT WITH THE ORDER IN SUCH AN
EXERCISE OF THE ASSISTANT SECRETARY'S DISCRETION.
FOR THE FOREGOING REASONS, AND PURSUANT TO SEC. 2411.17 OF THE
COUNCIL'S RULES OF PROCEDURE, WE SUSTAIN THE ASSISTANT SECRETARY'S
DISMISSAL OF THE UNIT CLARIFICATION PETITION. WE FURTHER FIND THAT THE
BASIS FOR THE DECISION OF THE ASSISTANT SECRETARY TO REVOKE THE UNION'S
CERTIFICATION OF REPRESENTATIVE IS INCONSISTENT WITH THE PURPOSES OF THE
ORDER, AND, THEREFORE, IT IS SET ASIDE. THE CASE IS ACCORDINGLY
REMANDED TO THE ASSISTANT SECRETARY FOR APPROPRIATE ACTION CONSISTENT
WITH THIS DECISION OF THE COUNCIL.
BY THE COUNCIL.
ISSUED: NOVEMBER 17, 1972.
/1/ THE PARTIES ENTERED INTO A SEPARATE BUT SIMILAR STIPULATION WITH
RESPECT TO THE REMAINING STIPULATED SUPERVISOR.
2 A/SLMR 224; P. 581; CASE NOS. 40-3673(RO) AND 40-3674(RO);
DECEMBER 4, 1972.
UNITED STATES ARMY
SAFEGUARD LOGISTICS COMMAND,
HUNTSVILLE, ALABAMA
UNITED STATES ARMY
SAFEGUARD SYSTEMS COMMAND,
HUNTSVILLE, ALABAMA
A/SLMR NO. 224
IN THIS CONSOLIDATED PROCEEDING THE PETITIONER, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO (AFGE) SOUGHT ELECTIONS IN
SEPARATE UNITS OF ALL THE PROFESSIONAL EMPLOYEES LOCATED IN THE
HUNTSVILLE, ALABAMA AREA OF THE U.S. ARMY SAFEGUARD SYSTEMS COMMAND
(SAFSCOM) AND THE U.S. ARMY SAFEGUARD LOGISTICS COMMAND (SAFLOG). THE
ACTIVITIES AND THE AFGE AGREED THAT THE UNITS SOUGHT WERE APPROPRIATE
AND THEY AGREED FURTHER THAT EMPLOYEES IN CERTAIN JOB CLASSIFICATIONS
WERE PROFESSIONAL EMPLOYEES.
THE ASSISTANT SECRETARY FOUND THE CLAIMED UNITS WERE APPROPRIATE,
NOTING THAT THE AFGE ALREADY HOLDS EXCLUSIVE RECOGNITION ON A SEPARATE
BASIS IN NONPROFESSIONAL UNITS IN EACH ACTIVITY WHICH ARE COEXTENSIVE
WITH THE PRESENT UNIT REQUESTS AND THAT EMPLOYEES IN SAFSCOM AND SAFLOG
WORK UNDER SEPARATE SUPERVISION IN HUNTSVILLE AND UNDER A DIFFERENT
CHAIN OF COMMAND IN WASHINGTON, D.C. CONSISTENT WITH THE ORDER, THE
ASSISTANT SECRETARY FOUND THAT THE PROFESSIONAL EMPLOYEES IN EACH UNIT
WERE ENTITLED TO VOTE WHETHER THEY DESIRED SEPARATE PROFESSIONAL UNITS
AND, IF SO, WHETHER THEY WISHED TO BE REPRESENTED BY THE AFGE, OR
WHETHER THEY WISHED TO BE INCLUDED IN THE EXISTING CERTIFIED
NONPROFESSIONAL UNITS IN SAFSCOM AND SAFLOG.
IN ADDITION, THE ASSISTANT SECRETARY FOUND EMPLOYEES IN THE JOB
CLASSIFICATIONS OF ENGINEER, ACCOUNTANT AND AUDITOR, ATTORNEY, EDUCATION
AND VOCATIONAL TRAINING SPECIALIST, AND PHYSICIST TO BE PROFESSIONAL
EMPLOYEES WHO SHOULD BE INCLUDED IN THE UNITS FOUND APPROPRIATE.
HOWEVER, THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE JOB
CLASSIFICATIONS OF HISTORIAN, LIBRARIAN AND OPERATIONS RESEARCH ANALYST
WERE NONPROFESSIONAL AND THAT THE EMPLOYEES IN THESE CLASSIFICATIONS
SHOULD BE CONSIDERED AS PART OF THE EXISTING CERTIFIED NONPROFESSIONAL
UNITS UN SAFLOG AND SAFSCOM.
UNITED STATES ARMY SAFEGUARD
LOGISTICS COMMAND, HUNTSVILLE,
ALABAMA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858, AFL-CIO
UNITED STATES ARMY SAFEGUARD
SYSTEMS COMMAND, HUNTSVILLE,
ALABAMA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858, AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER RENEE
B. RUX. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED. /1/
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS
THAT:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITIES.
2. IN CASE NO. 40-3673(RO), THE PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN
ELECTION IN A UNIT OF ALL THE PROFESSIONAL EMPLOYEES OF THE U.S. ARMY
SAFEGUARD LOGISTICS COMMAND (SAFLOG) EMPLOYED IN THE HUNTSVILLE, ALABAMA
AREA, EXCLUDING SUPERVISORS AND MANAGERIAL PERSONNEL, GUARDS,
NONPROFESSIONAL EMPLOYEES AND EMPLOYEES ENGAGED IN PERSONNEL WORK EXCEPT
THOSE WHOSE DUTIES ARE MOSTLY CLERICAL.
IN CASE NO. 40-3674(RO), THE AFGE SEEKS AN ELECTION IN A UNIT OF ALL
PROFESSIONAL EMPLOYEES OF THE U.S. ARMY SAFEGUARD SYSTEM COMMAND
(SAFSCOM) EMPLOYED IN THE HUNTSVILLE, ALABAMA AREA, EXCLUDING MANAGEMENT
OFFICIALS, NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND GUARDS AND
SUPERVISORS AS DEFINED IN THE ORDER.
THE ACTIVITIES AND THE AFGE AGREE THAT THE PETITION IN CASE NO.
40-3674(RO) INCLUDES THE FOLLOWING PROFESSIONAL JOB CLASSIFICATIONS:
ENGINEER, PHYSICIST, EDUCATION AND VOCATIONAL TRAINING SPECIALIST,
OPERATIONS RESEARCH ANALYST, LIBRARIAN, HISTORIAN, ATTORNEY, ACCOUNTANT,
AND AUDITOR. IN CASE NO. 40-3673(RO), THE PARTIES WOULD INCLUDE AS
PROFESSIONALS EMPLOYEES CLASSIFIED AS: ENGINEER, ACCOUNTANT, AUDITOR,
AND OPERATIONS RESEARCH ANALYST.
THERE ARE SEVERAL MILITARY ACTIVITIES IN THE HUNTSVILLE, ALABAMA AREA
WHICH HAVE MISSILE DEVELOPMENT FUNCTIONS. MOST OF THESE ACTIVITIES
(NONE OF WHICH HAVE A COMMAND RELATIONSHIP WITH ONE ANOTHER) ARE LOCATED
AT THE REDSTONE ARSENAL PROJECT AREA IN HUNTSVILLE, INCLUDING THE
LARGEST ACTIVITY, U.S. ARMY MISSILE COMMAND (MICOM). HOWEVER, SAFSCOM,
SAFLOG, THE ADVANCED BALLISTIC MISSILE DEFENSE AGENCY (ABMDA) AND THE
CORPS OF ENGINEERS ARE LOCATED AT RESEARCH PARK IN HUNTSVILLE. BASED ON
SEPARATE CROSS-SERVICE AGREEMENTS SIGNED BY THE COMMANDING GENERAL OF
MICOM RENDERS CENTRALIZED PERSONNEL SERVICES FOR THESE ACTIVITIES TO
AVOID DUPLICATION OF FUNCTIONS. /2/ IN PERFORMING ITS DUTIES, THE
CIVILIAN PERSONNEL OFFICE IS UNDER THE DIRECTION OF THE PARTICULAR
COMMAND FOR WHICH IT IS PERFORMING THE FUNCTION INVOLVED.
THE RECORD REVEALS THAT ON NOVEMBER 4, 1970, THE AFGE WAS CERTIFIED
AS THE EXCLUSIVE REPRESENTATIVE FOR ALL NONPROFESSIONAL EMPLOYEES OF
SAFSCOM IN THE HUNTSVILLE AREA, AND THAT ON THE SAME DATE IT WAS
CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE FOR A SEPARATE UNIT OF ALL
NONPROFESSIONAL EMPLOYEES OF SAFLOG IN THE HUNTSVILLE AREA.
SAFSCOM IS ENGAGED IN THE DEVELOPMENT, ACQUISITION AND INSTALLATION
OF THE APPROVED SAFEGUARD BALLISTIC MISSILE DEFENSE SYSTEM AND THE
ESTABLISHMENT OF A SITE DEFENSE PROTOTYPE DEMONSTRATION PROGRAM. THERE
ARE 21 DIRECTORATES AND OFFICE STAFFS IN THE SAFSCOM COMMAND, ALL
REPORTING DIRECTLY TO THE COMMANDING GENERAL'S OFFICE IN HUNTSVILLE.
THE OVERALL DIRECTION OF THE PROGRAM COMES FROM THE SYSTEMS COMMAND
MANAGER LOCATED IN WASHINGTON, D.C. THE CHAIN OF COMMAND BEYOND THE
SYSTEMS COMMAND MANAGER RUNS TO THE ARMY CHIEF OF STAFF. SAFSCOM
EMPLOYS ABOUT 1200 INDIVIDUALS AT ITS FACILITY AT RESEARCH PARK,
HUNTSVILLE, ALABAMA, INCLUDING APPROXIMATELY 354 ENGINEERS, 6 EDUCATION
AND VOCATIONAL TRAINING SPECIALISTS, 5 ATTORNEYS, AN OPERATIONS RESEARCH
ANALYST, A HISTORIAN A LIBRARIAN AND A PHYSICIST. /3/
SAFLOG IS ASSIGNED THE MISSION OF PROVIDING LOGISTIC SUPPORT TO
TACTICAL SAFEGUARD SITES AND IS CHARGED WITH DEVELOPING THE LOGISTICS
SYSTEM FOR SUPPORT OF THE DEPLOYED SAFEGUARD SYSTEM. IT IS COMPRISED OF
SEVEN DIRECTORATES, WHICH REPORT DIRECTLY TO THE SAFLOG COMMANDER IN
HUNTSVILLE. WHILE LOCATED AT THE SAME FACILITY AS SAFSCOM, SAFLOG IS A
SUBCOMMAND OF THE U.S. ARMY MATERIAL COMMAND AND HAS NO DIRECT COMMAND
RELATIONSHIP WITH SAFSCOM. SAFLOG EMPLOYS APPROXIMATELY 450 INDIVIDUALS
INCLUDING 30 ENGINEERS, 5 OPERATIONS RESEARCH ANALYSTS, 3 ACCOUNTANTS
AND AN AUDITOR.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE UNITS SOUGHT BY THE AFGE
IN THE SUBJECT CASES ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION. IN THIS CONNECTION, AS NOTED ABOVE, THE EVIDENCE
ESTABLISHES THAT THE AFGE HAS REPRESENTED ON A SEPARATE BASIS
NONPROFESSIONAL EMPLOYEES IN EACH ACTIVITY SINCE NOVEMBER 1970, AND THAT
THE CLAIMED UNITS OF PROFESSIONAL EMPLOYEES WOULD BE COEXTENSIVE WITH
THE CERTIFIED NONPROFESSIONAL UNITS. MOREOVER, EMPLOYEES OF SAFSCOM AND
SAFLOG WORK UNDER SEPARATE SUPERVISION IN HUNTSVILLE AND UNDER A
DIFFERENT CHAIN OF COMMAND IN WASHINGTON D.C. ACCORDINGLY, I FIND THAT
THE PROFESSIONAL EMPLOYEES IN EACH OF THE TWO CLAIMED UNITS HAVE A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST, AND THAT SUCH UNITS WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ELIGIBILITY ISSUES
AS STATED ABOVE, THE PARTIES CONTEND THAT EMPLOYEES CLASSIFIED AS
ENGINEER, PHYSICIST, ACCOUNTANT, AUDITOR, EDUCATIONAL AND VOCATIONAL
TRAINING SPECIALIST, OPERATIONS RESEARCH ANALYST, LIBRARIAN, HISTORIAN
AND ATTORNEY, EMPLOYED BY SAFSCOM, ARE PROFESSIONAL EMPLOYEES AND SHOULD
BE INCLUDED IN THE UNIT FOUND APPROPRIATE IN CASE NO. 40-3674(RO) AND
THAT THOSE CLASSIFIED AS ENGINEER, ACCOUNTANT, AUDITOR AND OPERATIONS
RESEARCH ANALYST, EMPLOYED BY SAFLOG, SHOULD BE INCLUDED AS
PROFESSIONALS IN THE UNIT FOUND APPROPRIATE IN CASE NO. 40-3673(RO).
/4/
ENGINEERS
THE PARTIES STIPULATED THAT EMPLOYEES IN THE ENGINEERING POSITION /5/
WERE PROFESSIONALS. THE RECORD REFLECTS THESE POSITIONS ARE HELD BY
INDIVIDUALS: (1) WHO ARE ENGAGED IN WORK PREDOMINANTLY INTELLECTUAL AND
VARIED IN CHARACTER, AS OPPOSED TO ROUTINE, MENTAL, MANUAL, MECHANICAL
OR PHYSICAL WORK, AND ARE INVOLVED IN THE CONSISTENT EXERCISE OF
DISCRETION AND JUDGEMENT IN THE PERFORMANCE OF THEIR WORK; (2) WHOSE
WORK IS OF SUCH CHARACTER THAT THE OUTPUT PRODUCED OR THE RESULT
ACCOMPLISHED CANNOT BE STANDARDIZED IN RELATION TO A GIVEN PERIOD OF
TIME; AND (3) WHOSE SELECTION FOR SUCH POSITIONS REQUIRE KNOWLEDGE OF
ADVANCE TYPE IN A FIELD OF SCIENCE OR LEARNING, CUSTOMARILY ACQUIRED BY
A PROLONGED COURSE OF SPECIALIZED AND INTELLECTUAL INSTRUCTION AND STUDY
IN AN INSTITUTION OF HIGHER LEARNING AS DISTINGUISHED FROM A GENERAL
ACADEMIC EDUCATION, OR FROM AN APPRENTICESHIP OR FROM TRAINING IN THE
PERFORMANCE OF ROUTINE MENTAL, MANUAL OR PHYSICAL PROCESSES.
IN MY OPINION, BASED ON THE FOREGOING STIPULATION OF FACTS, THESE
EMPLOYEES CLEARLY MEET THE CRITERIA ESTABLISHED IN DEPARTMENT OF
INTERIOR, BUREAU OF LAND MANAGEMENT, RIVERSIDE DISTRICT AND LAND OFFICE,
A/SLMR NO. 170, FOR ASCERTAINING WHETHER EMPLOYEES ARE "PROFESSIONALS"
WITHIN THE MEANING OF THE ORDER. ACCORDINGLY, THESE EMPLOYEES MAY BE
INCLUDED IN THE UNITS FOUND APPROPRIATE.
ATTORNEYS
THE PARTIES STIPULATED FURTHER THAT SAFSCOM PRESENTLY EMPLOYS FIVE
INDIVIDUALS IN ITS GENERAL COUNSEL'S OFFICE IN THE ATTORNEY
CLASSIFICATION WHO ARE PROFESSIONAL EMPLOYEES IN THAT THEY OCCUPY
POSITIONS WHICH REQUIRE KNOWLEDGE OF AN ADVANCED TYPE, ARE REQUIRED TO
BE MEMBERS OF THE BAR IN GOOD STANDING, AND THEIR WORK IS PREDOMINANTLY
INTELLECTUAL IN CHARACTER, REQUIRING THE CONSISTENT EXERCISE OF
DISCRETION AND JUDGEMENT. UNDER THESE CIRCUMSTANCES, I SHALL INCLUDE
THESE EMPLOYEES IN THE UNIT FOUND APPROPRIATE IN CASE NO. 40-3674 (RO).
ACCOUNTANTS AND AUDITORS
THE RECORD REVEALS THAT THE MINIMUM REQUIREMENTS FOR HIRE IN THE
ACCOUNTANT OR AUDITOR POSITIONS OF SAFSCOM AND SAFLOG, IS A FOUR-YEAR
COLLEGE DEGREE AS AN ACCOUNTING MAJOR; THREE YEARS EXPERIENCE, AS A
SUBSTITUTE FOR THE DEGREE, WHICH PROVIDED A KNOWLEDGE OF GENERALLY
ACCEPTED PRINCIPLES, THEORIES AND PRACTICES OF ACCOUNTING AND AUDITING;
A COMBINATION OF COLLEGE AND PRACTICAL EXPERIENCE; OR BEING A CERTIFIED
PUBLIC ACCOUNTANT.
SAFSCOM CURRENTLY EMPLOYS: SIX ACCOUNTANTS (TWO SYSTEM ACCOUNTANTS
AND FOUR STAFF ACCOUNTANTS) LOCATED IN THE OFFICE OF THE COMPTROLLER AND
DIRECTOR OF PROGRAMS OFFICE; NINE AUDITORS IN THE CONTRACTS OFFICE;
AND THREE AUDITORS IN THE INSPECTOR GENERAL'S OFFICE. THERE ARE THREE
ACCOUNTANTS AND ONE AUDITOR LOCATED IN THE COMPTROLLER'S DIVISION OF
SAFLOG.
THE RECORD REVEALS THAT THE COMPTROLLER'S OFFICE IN SAFSCOM IS
RESPONSIBLE FOR COORDINATING, MAINTAINING, INTERPRETING, AND
IMPLEMENTING ALL SAFSCOM'S FINANCIAL MANAGEMENT SYSTEMS. THE SYSTEM
ACCOUNTANTS, IN EFFECT, ARE RESPONSIBLE FOR DEVELOPING THE FINANCIAL
REPORTING SYSTEMS TO BE USED BY EACH OF THE COMMAND'S DIRECTORATES AND
FOR PROVIDING PROFESSIONAL ACCOUNTING ADVICE, ASSISTANCE AND GUIDANCE,
TO SAFSCOM AND OTHER ARMY COMMANDS, OTHER ACTIVITIES AND AGENCIES, AND
OUTSIDE CONTRACTORS WITH RESPECT TO SAFCOM'S POLICIES, METHODS AND
OBJECTIVES. WITHIN THE COMPTROLLER'S OFFICE IS A FINANCIAL MANAGEMENT
DIVISION WHICH HAS FOUR BRANCHES (PRODUCTION, SUPPORT, OPERATIONS, AND
RESEARCH AND DEVELOPMENT), WITH EACH BRANCH HAVING ONE STAFF ACCOUNTANT
WHO IS INVOLVED IN PREPARING BUDGETS, MONITORING THE BUDGET, AND
RENDERING FINANCIAL ADVICE FOR PROGRAMS COVERING THEIR AREA OF
RESPONSIBILITY.
THE AUDITORS IN THE CONTRACTS OFFICE ACT AS ANALYSTS AND TECHNICAL
ADVISORS TO THE BRANCH CHIEF. THEIR MAJOR DUTIES INVOLVE REVIEWING
CONTRACT PROPOSALS TO DETERMINE IF THEY HAVE PROPER COST AND PRICING
DATA, AUDITING PROPOSALS, MAKING PRICING REPORTS LISTING COSTS AND
PROFITS, AND REPORTING THE INFORMATION TO THE CONTRACT NEGOTIATORS AS
WELL AS SOMETIMES ACTIVELY ASSISTING IN THE NEGOTIATIONS.
THE AUDITORS IN THE INSPECTOR GENERAL'S OFFICE PERFORM INTERNAL
REVIEWS OF FINANCIAL OPERATIONS WITHIN SAFSCOM, WHICH INCLUDE ANALYSIS
AND REVIEW OF MAJOR DIRECTORATES AND STAFF OFFICES TO DETERMINE WHETHER
THEY ARE EFFECTIVELY ACCOMPLISHING GOALS AND TO INSURE THAT FUNDS ARE
SPENT CORRECTLY IN THE MOST EFFICIENT MANNER WITHIN ESTABLISHED RULES
AND REGULATIONS.
THE COMPTROLLER'S DIVISION OF SAFLOG PRESENTLY EMPLOYS THREE
ACCOUNTANTS AND AN AUDITOR WHO PROVIDE SAFLOG'S COMMANDING OFFICER WITH
EVALUATIONS OF THE EFFECTIVENESS AND EFFICIENCY OF THE INTERNAL
MANAGEMENT, SUPPORT AND FINANCIAL FUNCTIONS BEING PERFORMED WITHIN
SAFLOG.
WITH RESPECT TO THE ACCOUNTANTS AND AUDITORS EMPLOYED BY SAFSCOM AND
SAFLOG, THE RECORD REFLECTS THAT WHILE THEIR WORK IS REVIEWED BY BRANCH
CHIEFS, SUCH REVIEWS ARE LIMITED, AND GENERALLY THEY WORK UNDER LITTLE
OR NO SUPERVISION. FURTHER, IT IS CLEAR THAT THEY OCCUPY POSITIONS
WHICH REQUIRE KNOWLEDGE IN AN ADVANCED FIELD OF LEARNING, THAT THEIR
WORK IS PREDOMINANTLY INTELLECTUAL IN CHARACTER AND REQUIRES THE
CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT AND DISCRETION. UNDER THESE
CIRCUMSTANCES, I FIND THAT THEY ARE PROFESSIONAL EMPLOYEES WITHIN THE
MEANING OF THE ORDER AND, THEREFORE, SHOULD BE INCLUDED IN THE UNITS
FOUND APPROPRIATE.
EDUCATION AND VOCATIONAL TRAINING SPECIALISTS
THE BASIC QUALIFICATIONS FOR THE EDUCATION AND VOCATIONAL TRAINING
SPECIALIST POSITION INCLUDES A BACHELOR'S DEGREE AND TEACHER TRAINING,
OR SUCCESSFUL PERFORMANCE IN THE NATIONAL TEACHER EXAMINATIONS. THE
RECORD REVEALS THAT SIX EMPLOYEES CURRENTLY ARE EMPLOYED AS EDUCATION
AND VOCATIONAL TRAINING SPECIALISTS IN SAFSCOM'S SITE ACTIVATION
DIRECTORATE-TRAINING DIVISION. THESE EMPLOYEES ARE ENGAGED IN
DEVELOPING COURSE MATERIAL, CURRICULA, AND EQUIPMENT TRAINING AIDS AND
DEVICES, AND COORDINATING THIS MATERIAL WITH OTHER ARMY SYSTEMS. THE
EDUCATION AND VOCATIONAL TRAINING SPECIALISTS DO NOT TRAIN ARMY
PERSONNEL ON THE USE OF THE EQUIPMENT BUT, RATHER, MANAGE THE EFFORTS OF
OUTSIDE NON-GOVERNMENT CONTRACTORS WHO ARE CONCERNED WITH MANUFACTURING
THE TRAINING MATERIAL AND THE ACTUAL TRAINING OF ARMY PERSONNEL. IN THE
PERFORMANCE OF THEIR DUTIES, THEY FREQUENTLY TRAVEL TO DIFFERENT
CONTRACTORS IN ORDER TO PREPARE THE INSTRUCTORS FOR THE ACTUAL TRAINING
OR TO MONITOR THE TRAINING PROGRAM TO ASSURE AND MAINTAIN THE QUALITY OF
INSTRUCTION. THEY ARE SUPERVISED ADMINISTRATIVELY BY A BRANCH CHIEF BUT
RECEIVE ALMOST NO TECHNICAL SUPERVISION. UNDER ALL THE CIRCUMSTANCES
AND NOTING THE EDUCATIONAL BACKGROUND REQUIRED AND THE FACT THAT THESE
EMPLOYEES ARE ESSENTIALLY TEACHERS WHOSE WORK IS PREDOMINANTLY
INTELLECTUAL IN CHARACTER REQUIRING THE CONSISTENT EXERCISE OF
INDEPENDENT JUDGEMENT AND DISCRETION, I FIND THAT EMPLOYEES CLASSIFIED
AS EDUCATION AND VOCATIONAL TRAINING SPECIALISTS ARE PROFESSIONALS
WITHIN THE MEANING OF THE ORDER. /6/ ACCORDINGLY, THEY SHOULD BE
INCLUDED IN THE UNIT FOUND APPROPRIATE IN CASE NO. 40-3674(RO).
LIBRARIAN; HISTORIAN; OPERATIONS RESEARCH ANALYST
SAFSCOM EMPLOYS A LIBRARIAN IN THE SUPPORT OPERATIONS OFFICE,
LOGISTICS AND FACILITIES DIVISION. THE MINIMUM REQUIREMENTS FOR HIRING
INTO THE LIBRARIAN POSITION, WHICH IS A GS-7 LEVEL, INCLUDE EITHER THE
COMPLETION OF A FULL YEAR OF GRADUATE STUDY IN LIBRARY SCIENCE;
COMPLETION OF ALL THE REQUIREMENTS FOR A FULL YEAR OF GRADUATE STUDY,
WHICH INCLUDE AT LEAST ONE YEAR OF LIBRARY EXPERIENCE AT GS-5 LEVEL; OR
A COMBINATION OF STUDY AND EXPERIENCE PROVIDING A KNOWLEDGE AND
UNDERSTANDING OF LIBRARIANSHIP. THE LIBRARY INVOLVED HEREIN IS
TECHNICAL IN NATURE, ESSENTIALLY CONTAINING REGULATIONS, REPORTS, AND
OTHER DATA FROM SAFSCOM, MICOM, DEPARTMENT OF THE ARMY AND DEPARTMENT OF
DEFENSE. THE MATERIALS ARE CATALOGUED AND CLASSIFIED BY THE INCUMBENT
ON THE BASIS OF A THESAURUS GUIDELINE, BUT SPECIAL
CATALOGUING-CLASSIFYING PROBLEMS ARE PRESENTED TO A TECHNICAL
DOCUMENTARY REVIEW PANEL.
FOR THE GS-5 HISTORIAN POSITION IN SAFSCOM THE BASIC REQUIREMENTS FOR
HIRING ARE A MINIMUM OF THREE YEARS EXPERIENCE IN ADMINISTRATIVE,
INVESTIGATIVE OR TECHNICAL WORK IN HISTORY, POLITICAL SCIENCE,
INTERNATIONAL LAW OR INTERNATIONAL RELATIONS OR SIMILAR FIELDS WHICH
REQUIRE THE ABILITY TO DEAL EFFECTIVELY WITH THE INDIVIDUALS OR GROUPS
OF PERSONS; TO COLLECT, ASSEMBLE AND ANALYZE PERTINENT FACTS; AND TO
PREPARE CLEAR AND CONCISE WRITTEN REPORTS. AS A SUBSTITUTE FOR THE
FOREGOING EXPERIENCE, AN INDIVIDUAL MAY BE HIRED IF HE HAS FOUR YEARS OF
STUDY IN AN ACCREDITED COLLEGE INCLUDING AN AVERAGE OF SIX SEMESTER
HOURS IN OR DIRECTLY RELATED TO HISTORY. THE PRIMARY FUNCTION OF THE
HISTORIAN IS TO COMPILE AN ANNUAL HISTORICAL SUMMARY, ABOUT 300 PAGES IN
LENGTH, ENCOMPASSING EVERY FACET OF THE PROGRESS OF THE COMMAND, WHICH
IS DOCKETED IN THE OFFICE OF MILITARY HISTORY IN WASHINGTON. IN
COMPILING THE MATERIAL FOR THE SUMMARY, THE HISTORIAN ATTENDS MONTHLY
REVIEW MEETINGS OF THE VARIOUS STAFFS AND DIRECTORATES, USES MINUTES OF
MEETINGS AND SUMMARIES DISTRIBUTED BY VARIOUS DIRECTORATES, AND, ON
OCCASION, DOES LIBRARY RESEARCH. INTERVIEWS ARE CONDUCTED WITH CHIEFS
OF VARIOUS SECTIONS AFTER THE INITIAL DRAFT TO CHECK ON THE ACCURACY OF
THE REPORT.
THE BASIC QUALIFICATION FOR HIRE AT THE INITIAL GS-5 LEVEL FOR
OPERATIONS RESEARCH ANALYST POSITIONS IN BOTH SAFSCOM AND SAFLOG IS THAT
AN INDIVIDUAL MUST HAVE AT LEAST A BACHELOR'S DEGREE WITH A COURSE OF
STUDY THAT INCLUDED 24 SEMESTER HOURS OF OPERATIONS RESEARCH,
MATHEMATICS, STATISTICS, LOGIC, AND SUBJECT MATTER COURSES WHICH REQUIRE
SUBSTANTIAL COMPETENCE IN MATHEMATICS OR STATISTICS. SAFSCOM CURRENTLY
EMPLOYS ONE OPERATIONS RESEARCH ANALYST IN THE COST ANALYSIS DIVISION OF
ITS COMPTROLLER AND DIRECTOR OF PROGRAM OFFICE. HIS MAJOR DUTY IS TO
ANALYZE THE COST OF PROJECTS, WHICH INVOLVES INTERVIEWS WITH COST
ACCOUNTANTS, ENGINEERS AND CONTRACTORS, UTILIZING, AMONG OTHER THINGS,
FIGURES OBTAINED FROM THE BUREAU OF LABOR STATISTICS, OTHER STATISTICAL
FORMULAE, FIGURES ON WAGE RATES AND TRENDS, AND THE LAWS OF PROBABILITY.
THEREAFTER, THIS INFORMATION IS DEVELOPED INTO A MATHEMATICAL FORMULA
TO PROJECT FUTURE COSTS. THE FOUR OPERATIONS ANALYSTS IN SAFLOG ARE
EMPLOYED IN THE PLANNING AND ANALYSIS DIRECTORATE AND ARE INVOLVED WITH
PROVIDING SCIENTIFIC, OPERATIONS RESEARCH AND MATHEMATICAL ASSISTANCE.
FURTHER, THEY ACT AS AN EVALUATION GROUP OF VARIOUS PROJECTS ON BEHALF
OF THE SAFLOG COMMANDER.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE LIBRARIAN, HISTORIAN AND
OPERATIONS RESEARCH ANALYSTS ARE NOT PROFESSIONAL EMPLOYEES WITHIN THE
MEANING OF THE ORDER AND, THEREFORE, SHOULD NOT BE INCLUDED IN THE UNITS
FOUND APPROPRIATE. /7/ WHILE THE HISTORIAN AND OPERATION RESEARCH
ANALYSTS OCCUPY POSITIONS REQUIRING THE EXERCISE OF CERTAIN DISCRETION
AND JUDGEMENT, THE PREREQUISITES FOR THEIR JOBS DO NOT INCLUDE A
PROLONGED COURSE OF SPECIALIZED INTELLECTUAL INSTRUCTION OR STUDY.
RATHER, SUCH EMPLOYEES ARE REQUIRED TO HAVE A GENERAL DEGREE
SUPPLEMENTED BY A CERTAIN SPECIFIC COURSE OR THREE YEARS OF PRACTICAL
EXPERIENCE IN THE CASE OF THE HISTORIAN POSITION. WHILE THE LIBRARIAN'S
POSITION REQUIRES SOME SPECIALIZED EDUCATION, IN MY OPINION, THE
LIBRARIAN IN QUESTION IS NOT ENGAGED IN THE CONSISTENT EXERCISE OF
DISCRETION AND JUDGEMENT, NOR IS THE WORK PERFORMED BY THE INCUMBENT
PREDOMINANTLY INTELLECTUAL AND VARIED IN CHARACTER. IN THIS REGARD, THE
EVIDENCE ESTABLISHES THE INCUMBENT IN THIS POSITION FOLLOWS A STANDARD
SYSTEM FOR CATALOGUING AND CLASSIFYING AND SUBMITS DIFFICULT
CATALOGUING-CLASSIFYING PROBLEMS TO A REVIEW PANEL FOR RESOLUTION.
BASED ON THE FOREGOING, I FIND THE FOLLOWING UNITS ARE APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491, AS
AMENDED:
CASE NO. 40-3673(RO)
ALL PROFESSIONAL EMPLOYEES OF THE U.S. ARMY SAFEGUARD LOGISTICS
COMMAND (SAFLOG) LOCATED IN
THE HUNTSVILLE, ALABAMA AREA, INCLUDING EMPLOYEES CLASSIFIED AS
ENGINEER, ACCOUNTANT, AND
AUDITOR; EXCLUDING ALL NONPROFESSIONAL EMPLOYEES, EMPLOYEES
CLASSIFIED AS OPERATIONS RESEARCH
ANALYSTS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED
IN THE ORDER.
CASE NO. 40-3674(RO)
ALL PROFESSIONAL EMPLOYEES OF THE U.S. ARMY SAFEGUARD SYSTEMS COMMAND
(SAFSCOM) LOCATED IN
THE HUNTSVILLE, ALABAMA AREA, INCLUDING EMPLOYEES CLASSIFIED AS
ENGINEER, PHYSICIST,
ACCOUNTANT, AUDITOR, ATTORNEY, AND EDUCATION AND VOCATIONAL TRAINING
SPECIALIST; EXCLUDING
NONPROFESSIONAL EMPLOYEES, EMPLOYEES CLASSIFIED AS LIBRARIAN,
HISTORIAN, OPERATIONS RESEARCH
ANALYST, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
DURING THE HEARING, THE AFGE INDICATED THAT IT DESIRED THAT THE
PROFESSIONAL EMPLOYEES HEREIN BE PROVIDED WITH AN OPTION AS TO WHETHER
THEY WOULD CONSTITUTE SEPARATE PROFESSIONAL EMPLOYEE UNITS OR BE
INCLUDED IN THE EXISTING CERTIFIED NONPROFESSIONAL EMPLOYEE BARGAINING
UNITS IN SAFLOG AND SAFCOM. IN ACCORDANCE WITH THE ORDER AND CONSISTENT
WITH THE PROCEDURAL GUIDE FOR CONDUCT OF ELECTIONS UNDER SUPERVISION OF
THE ASSISTANT SECRETARY PURSUANT TO EXECUTIVE ORDER 11491, THE BALLOTS
OF THE PROFESSIONAL EMPLOYEES IN THE UNITS FOUND APPROPRIATE SHOULD
PRESENT THE FOLLOWING PRELIMINARY QUESTION: DOES THE EMPLOYEE WISH TO
BE ADDED TO THE REPRESENTED NONPROFESSIONAL UNIT OR DOES THE EMPLOYEE
WISH A SEPARATE UNIT? A VOTE FOR INCLUSION IN THE REPRESENTED UNIT
WOULD MAKE A SECOND QUESTION AS TO THE EMPLOYEES' DESIRE FOR
REPRESENTATION MEANINGLESS, AND A SEPARATE TALLY WOULD BE UNNECESSARY.
IF, HOWEVER, THE PROFESSIONAL EMPLOYEES VOTE FOR A SEPARATE UNIT, VOTES
FOR OR AGAINST THE LABOR ORGANIZATION MUST BE TALLIED TO DETERMINE
MAJORITY STATUS.
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN
THE UNITS FOUND TO BE APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER
THAN 60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR
SHALL SUPERVISE THE ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNITS WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE IN EACH UNIT SHALL VOTE (1) WHETHER THEY
DESIRE TO BE ADDED TO THE REPRESENTED NON-PROFESSIONAL UNIT, AND (2)
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858, AFL-CIO.
DATED, WASHINGTON, D.C.
DECEMBER 4, 1972
/1/ THE PARTIES WERE IN AGREEMENT AS TO THE APPROPRIATENESS OF THE
UNITS CLAIMED IN THE SUBJECT CASES AS WELL AS TO THE CATEGORIES OF
EMPLOYEES TO BE INCLUDED IN SUCH UNITS. AT THE HEARING, THE PETITIONER
INTRODUCED A MEMORANDUM OF UNDERSTANDING, SIGNED BY THE PARTIES,
AGREEING THAT CERTAIN CATEGORIES OF EMPLOYEES WERE PROFESSIONAL
EMPLOYEES AND MOVED THAT THE HEARING BE CLOSED. THE HEARING OFFICER
DENIED THE MOTION. FOR THE REASONS ENUNCIATED IN ARMY AND AIR FORCE
EXCHANGE SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS
MISSILE RANGE, NEW MEXICO, A/SLMR NO. 25, I REJECT THE CONTENTION I AM
NECESSARILY BOUND BY THE PARTIES' AGREEMENT ON THE APPROPRIATENESS OF
THE UNIT AND BY THEIR AGREEMENT ON UNIT INCLUSIONS OR EXCLUSIONS.
ACCORDINGLY, THE HEARING OFFICER'S RULING IS HEREBY AFFIRMED.
/2/ THE OTHER ACTIVITIES COVERED ARE THE ABMDA, LANCE PROJECT OFFICE,
SAM-D PROJECT OFFICE, VOLUNTEER ARMY AMMO PLANT, ARMY MISSILE AND
MUNITIONS CENTER SCHOOL, RSA MEDICAL DEPARTMENT ACTIVITY, ARMY COMBAT
DEVELOPMENTS COMMAND, AND ARMY STRATEGIC COMMUNICATIONS COMMAND.
/3/ THE RECORD REVEALS THAT THERE ARE A FEW EMPLOYEES OF SAFSCOM WHO
ARE ASSIGNED PERMANENTLY OUTSIDE THE HUNTSVILLE AREA AND WHO ARE NOT
INCLUDED IN THE CURRENTLY REPRESENTED NONPROFESSIONAL UNIT. SIMILARLY,
THE AFGE DOES NOT SEEK TO REPRESENT SAFSCOM EMPLOYEES ASSIGNED OUTSIDE
THE HUNTSVILLE AREA WHO ARE DEEMED TO BE PROFESSIONALS IN THIS
PROCEEDING.
/4/ IN CONNECTION WITH THESE CONTENTIONS REGARDING PROFESSIONAL
STATUS, THE ACTIVITIES FOLLOWED THE CIVIL SERVICE CLASSIFICATION
STANDARDS FOR HIRING. THUS, THE POSITIONS ALLEGED BY THE ACTIVITIES TO
BE PROFESSIONAL ARE CONSIDERED PROFESSIONAL POSITIONS BY THE U.S. CIVIL
SERVICE COMMISSION.
/5/ THIS CATEGORY ENCOMPASSED ABOUT 354 EMPLOYEES IN SAFSCOM IN EIGHT
ENGINEERING CLASSIFICATIONS, INCLUDING A PHYSICIST, AND 30 EMPLOYEES IN
FIVE ENGINEERING CATEGORIES IN SAFLOG.
/6/ CF. DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS, NAVAJO
AREA, A/SLMR NO. 99, IN WHICH EMPLOYEES IN THE SAME CIVIL SERVICE JOB
SERIES WERE FOUND TO BE PROFESSIONAL EMPLOYEES.
/7/ BECAUSE THESE EMPLOYEES ARE NOT ELIGIBLE TO VOTE IN THE CLAIMED
UNITS OF PROFESSIONAL EMPLOYEES, THEY SHOULD BE CONSIDERED AS PART OF
THE EXISTING CERTIFIED UNITS OF ALL NONPROFESSIONAL EMPLOYEES OF SAFSCOM
AND SAFLOG IN THE HUNTSVILLE AREA.
2 A/SLMR 223; P. 566; CASE NO. 42-1762(CA-26); DECEMBER 4, 1972.
NASA, KENNEDY SPACE CENTER,
KENNEDY SPACE CENTER, FLORIDA
A/SLMR NO. 223
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (COMPLAINANT),
AGAINST NASA, KENNEDY SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA
(RESPONDENT), ALLEGING THAT NASA VIOLATED SECTION 19(A)(6) OF EXECUTIVE
ORDER 11491 BY INFORMING THE COMPLAINANT ON APRIL 30, 1971, THAT THE
RESPONDENT WOULD IMPLEMENT CHANGES IN ITS MEDICAL AND ENVIRONMENTAL
HEALTH PROGRAM AT KENNEDY SPACE CENTER AND BY REFUSING TO NEGOTIATE
THESE CHANGES WITH THE COMPLAINANT, WHICH CHANGES CONFLICTED WITH THE
TERMS OF THE PARTIES' COLLECTIVE-BARGAINING AGREEMENT.
THE RESPONDENT CONTENDED THAT THE PARTIES' COLLECTIVE-BARGAINING
AGREEMENT WAS NOT CHANGED BY ITS REVISION OF THE KENNEDY MANAGEMENT
INSTRUCTION (KMI) WITH REGARD TO EMPLOYEE MEDICAL CLEARANCE
REQUIREMENTS, AND THAT THE NEW KMI PROVISION WAS NOT IN CONFLICT WITH
THE AGREEMENT. IN THESE CIRCUMSTANCES, THE RESPONDENT CONTENDED THAT
ITS ONLY OBLIGATION UNDER THE AGREEMENT WAS TO CONSULT WITH THE
COMPLAINANT, AND THAT IT HAD FULFILLED THIS OBLIGATION.
THE RESPONDENT MOVED TO DISMISS THE COMPLAINT FOR LACK OF
JURISDICTION, CONTENDING THAT THE ASSISTANT SECRETARY, BY VIRTUE OF
SECTION 13(A) OF THE ORDER, AS AMENDED, HAD NO JURISDICTION BECAUSE THE
DISPUTE HEREIN INVOLVED A MATTER OF CONTRACT INTERPRETATION OF
APPLICATION WHICH SHOULD BE HANDLED UNDER THE PARTIES' CONTRACTUAL
GRIEVANCE PROCEDURE. SPECIFICALLY, THE RESPONDENT MAINTAINED THAT THE
ISSUE HEREIN INVOLVED A QUESTION OVER THE INTERPRETATION OR APPLICATION
OF THE "IN CONFLICT" LANGUAGE CONTAINED IN ARTICLE III, SECTION 7, OF
THE PARTIES' COLLECTIVE-BARGAINING AGREEMENT.
THE ASSISTANT SECRETARY ADOPTED THE HEARING EXAMINER'S RECOMMENDATION
THAT THE MOTION TO DISMISS THE COMPLAINT FOR LACK OF JURISDICTION BE
DENIED. THE ASSISTANT SECRETARY NOTED THAT IN REPORT ON A RULING OF THE
ASSISTANT SECRETARY, REPORT NO. 49, HE HAD STATED THAT WHERE A COMPLAINT
INVOLVES ESSENTIALLY A DISAGREEMENT OVER THE INTERPRETATION OF AN
EXISTING COLLECTIVE-BARGAINING AGREEMENT WHICH PROVIDES A PROCEDURE FOR
RESOLVING THE DISAGREEMENT, THE PARTIES SHOULD PURSUE THEIR CONTRACTUAL
RATHER THAN UNFAIR LABOR PRACTICE REMEDIES. HOWEVER, HE STATED THAT NO
WITHDRAWAL OF JURISDICTION WAS INTENDED IN THOSE SITUATIONS WHERE, AS
HERE, AT ISSUE IS THE QUESTION WHETHER A PARTY TO AN AGREEMENT HAS GIVEN
UP RIGHTS GRANTED UNDER THE ORDER.
IN AGREEMENT WITH THE HEARING EXAMINER, THE ASSISTANT SECRETARY FOUND
THAT THE KMI REVISION DID NOT CONFLICT WITH THE EXISTING SICK LEAVE
PROVISION IN THE PARTIES' NEGOTIATED AGREEMENT, BUT RATHER THAN IT
CONSTITUTED A NEW TERM OR CONDITION OF EMPLOYMENT FOR EMPLOYEES IN THE
BARGAINING UNIT. IN THE ASSISTANT SECRETARY'S VIEW, THE FOREGOING
CONCLUSION NECESSARILY LEADS TO THE QUESTION OF THE RESPONDENT'S
OBLIGATION, IF ANY, TO NEGOTIATE WITH THE EMPLOYEES' EXCLUSIVE
BARGAINING REPRESENTATIVE ON THE MATTER INVOLVED.
THE ASSISTANT SECRETARY REJECTED THE HEARING EXAMINER'S FINDING THAT
THE COMPLAINANT WAIVED THE RIGHT TO NEGOTIATE ON THE INSTITUTION OF NEW
TERMS AND CONDITIONS OF EMPLOYMENT WITH RESPECT TO BARGAINING UNIT
EMPLOYEES DURING THE LIFE OF THE PARTIES' AGREEMENT. HE NOTED IN THIS
REGARD THAT THE PROVISIONS OF THE PARTIES' COLLECTIVE-BARGAINING
AGREEMENT DEALING WITH THE RIGHTS OF THE EMPLOYER AND THE RIGHTS OF THE
UNION, WHEN READ TOGETHER, DID NOT SHOW CLEARLY AND UNMISTAKABLY THAT
THE COMPLAINANT WAIVED ITS RIGHT TO NEGOTIATE. AS A RESULT, THE
ASSISTANT SECRETARY FOUND THAT THE RESPONDENT WAS REQUIRED TO NEGOTIATE
WITH THE COMPLAINANT BEFORE IMPLEMENTING THE KMI REVISION.
IN AGREEMENT WITH THE HEARING EXAMINER, THE ASSISTANT SECRETARY FOUND
THAT IN THE PERIOD AFTER THE RESPONDENT ADVISED THE COMPLAINANT OF ITS
INTENTION TO PUT INTO EFFECT THE KMI REVISION, EACH PARTY SENT
APPROXIMATELY 8 LETTERS TO THE OTHER, AND 5 MEETINGS BETWEEN THE PARTIES
TOOK PLACE. FURTHER, THE RESPONDENT, ON NUMEROUS OCCASIONS, REQUESTED
THAT COMPLAINANT SUBMIT ANY SUGGESTIONS IT HAD FOR CHANGES IN THE
PROPOSED REVISION AND, IN FACT, THE RESPONDENT MADE SEVERAL CHANGES
BASED UPON THE REQUESTS AND SUGGESTIONS SUBMITTED BY THE COMPLAINANT.
IN THE CONTEXT OF THESE EVENTS, THE ASSISTANT SECRETARY FOUND THAT
THE PROPOSED REVISION WAS DISCUSSED FULLY BY BOTH PARTIES AND THAT AS A
PRACTICAL MATTER-- REGARDLESS OF WHAT THE PARTIES CONSIDERED THEIR
CONDUCT TO BE-- THE PARTIES DID, IN FACT, ENGAGE IN NEGOTIATIONS
REGARDING THE PROPOSED KMI REVISION. ACCORDINGLY, THE ASSISTANT
SECRETARY FOUND THAT THE RESPONDENT SATISFIED ITS OBLIGATION TO
NEGOTIATE WITH THE COMPLAINANT ON THE PROPOSED REVISION AND, IN
AGREEMENT WITH THE HEARING EXAMINER, ORDERED THAT THE COMPLAINT BE
DISMISSED.
NASA, KENNEDY SPACE CENTER,
KENNEDY SPACE CENTER, FLORIDA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, (AFL-CIO)
ON JUNE 30, 1972, HEARING EXAMINER WILLIAM NAIMARK ISSUED HIS REPORT
AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE
RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED, AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED. THEREAFTER, THE
COMPLAINANT FILED EXCEPTIONS TO THE HEARING EXAMINER'S REPORT AND
RECOMMENDATIONS.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS, AND THE ENTIRE RECORD IN
THIS CASE, INCLUDING THE EXCEPTIONS AND A SUPPORTING BRIEF FILED BY THE
COMPLAINANT, I HEREBY ADOPT THE HEARING EXAMINER'S REPORT AND
RECOMMENDATIONS TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT IN THE INSTANT CASE WAS FILED ON OCTOBER 1, 1971, BY
THE COMPLAINANT, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, ON BEHALF OF ITS LOCAL 2498, AGAINST THE RESPONDENT, NASA,
KENNEDY SPACE CENTER, FLORIDA. IT ALLEGED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(6) OF EXECUTIVE ORDER 11491 BY INFORMING THE COMPLAINANT
ON APRIL 30, 1971, THAT THE RESPONDENT WOULD IMPLEMENT CHANGES IN ITS
MEDICAL AND ENVIRONMENTAL HEALTH PROGRAMS AT KENNEDY SPACE CENTER (KSC)
AND BY REFUSING TO NEGOTIATE THESE CHANGES WITH THE COMPLAINANT. /1/
IN ESSENCE, THE COMPLAINANT ARGUES THAT THE RESPONDENT VIOLATED
SECTION 19(A)(6) OF THE ORDER BY ITS REFUSAL TO NEGOTIATE CONCERNING A
REVISION OF KMI IN CONNECTION WITH EMPLOYEE MEDICAL CLEARANCE
REQUIREMENTS. IT ASSERTS THAT SUCH REVISION, IN EFFECT, MODIFIED THE
PARTIES' COLLECTIVE-BARGAINING AGREEMENT.
THE RESPONDENT, ON THE OTHER HAND, CONTENDS THAT THE PARTIES'
COLLECTIVE-BARGAINING AGREEMENT WAS NOT CHANGED BY THE KMI REVISION AND
THAT THE NEW KMI PROVISION IS NOT IN CONFLICT WITH THE AGREEMENT. THE
RESPONDENT CONTENDS THAT ITS ONLY OBLIGATION UNDER THE AGREEMENT IN THIS
REGARD WAS TO CONSULT WITH THE COMPLAINANT, AND THAT IS FULFILLED THIS
OBLIGATION.
THE RESPONDENT MOVED TO DISMISS THE COMPLAINT FOR LACK OF
JURISDICTION, CONTENDING THAT THE ASSISTANT SECRETARY, BY VIRTUE OF
SECTION 13(A) OF THE ORDER, AS AMENDED, HAS NO JURISDICTION BECAUSE THE
DISPUTE HEREIN INVOLVES A MATTER OF CONTRACT INTERPRETATION OR
APPLICATION WHICH SHOULD BE HANDLED UNDER THE PARTIES' CONTRACTUAL
GRIEVANCE PROCEDURE. SPECIFICALLY, THE RESPONDENT MAINTAINS THAT THE
ISSUE HEREIN INVOLVES A QUESTION OVER THE INTERPRETATION OR APPLICATION
OF THE "IN CONFLICT" LANGUAGE CONTAINED IN ARTICLE III, SECTION 7 OF THE
PARTIES' COLLECTIVE-BARGAINING AGREEMENT. /2/
THE HEARING EXAMINER CONCLUDED THAT THE AGREEMENT LANGUAGE
SPECIFICALLY REFERRED TO BY THE RESPONDENT WAS NEITHER AMBIGUOUS NOR
UNCLEAR, STATING THAT THE TERM "IN CONFLICT" IS NOT COUCHED IN
INDEFINITE OR UNCERTAIN LANGUAGE. THUS, HE REASONED THAT THE PARTIES'
DISPUTE DID NOT INVOLVE A MATTER OF INTERPRETATION OF THE AGREEMENT
BASED ON AMBIGUOUS LANGUAGE AND, THEREFORE, RECOMMENDED DENIAL OF THE
MOTION TO DISMISS THE COMPLAINT FOR LACK OF JURISDICTION.
BASED ON THE FACTS OVERALL, I AGREE WITH THE HEARING EXAMINER'S
RECOMMENDATION IN THIS REGARD. I HAVE STATED PREVIOUSLY THAT WHERE A
COMPLAINT INVOLVES ESSENTIALLY A DISAGREEMENT OVER THE INTERPRETATION OF
AN EXISTING COLLECTIVE-BARGAINING AGREEMENT WHICH PROVIDES A PROCEDURE
FOR RESOLVING THE DISAGREEMENT, THE PARTIES SHOULD PURSUE THEIR
CONTRACTUAL RATHER THAN UNFAIR LABOR PRACTICE REMEDIES. /3/ BY THIS
POLICY STATEMENT, HOWEVER, NO WITHDRAWAL OF JURISDICTION WAS INTENDED IN
THOSE SITUATIONS WHERE AT ISSUE IS THE QUESTION WHETHER A PARTY TO AN
AGREEMENT HAS GIVEN UP RIGHTS GRANTED UNDER THE ORDER. HERE, THE
PARAMOUNT ISSUE IS THE WAIVER OF A RIGHT GRANTED UNDER THE ORDER-- THAT
IS, THE RIGHT TO NEGOTIATE OVER EMPLOYEE MEDICAL CLEARANCE REQUIREMENTS.
UNDER THESE CIRCUMSTANCES, I ADOPT THE HEARING EXAMINER'S
RECOMMENDATION TO DENY THE RESPONDENT'S MOTION TO DISMISS THE COMPLAINT
FOR LACK OF JURSIDICTION UNDER SECTION 13(A) OF THE ORDER, AS AMENDED.
THE ESSENTIAL FACTS OF THE CASE, WHICH ARE NOT IN DISPUTE, ARE SET
FORTH IN DETAIL IN THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS,
AND I SHALL REPEAT THEM ONLY TO THE EXTENT NECESSARY.
ON JANUARY 13, 1971, THE RESPONDENT WROTE A LETTER TO THE COMPLAINANT
ADVISING IT OF THE PROPOSED REVISION OF THE KMI IN CONNECTION WITH THE
MEDICAL AND ENVIRONMENTAL HEALTH PROGRAMS OF THE KSC AND REQUESTING
COMMENTS THEREON. IN ESSENCE, THE PROPOSAL PROVIDED THAT EMPLOYEES WHO
HAVE BEEN ON SICK LEAVE FOR MORE THAN THREE WORKING DAYS MAY NOT RETURN
TO DUTY UNTIL THEY RECEIVE A MEDICAL CLEARANCE, INCLUDING SUCH PHYSICAL
EXAMINATION AS IS NECESSARY FROM THE OCCUPATIONAL HEALTH FACILITY (OHF).
IN ADDITION, IT PROVIDED THAT AN EMPLOYEE WHO WAS HOSPITALIZED OR WHO
HAD BEEN ON EXTENDED SICK LEAVE BE REQUIRED TO FURNISH A STATEMENT TO
THE KSC PHYSICIAN FROM HIS PERSONAL PHYSICIAN INDICATING THAT HE WAS
RELEASED TO RETURN TO DUTY. THE COMPLAINANT REPLIED ON JANUARY 14,
1971, STATING THAT THE PROPOSED REVISION OF KMI WAS IN CONFLICT WITH THE
SICK LEAVE PROVISION OF THE NEGOTIATED AGREEMENT AND SHOULD NOT BE
IMPLEMENTED. THE COMPLAINANT ALSO REQUESTED THAT THE PROCEDURES UNDER
THE CONTRACT FOR NEGOTIATING AMENDMENTS AND/OR CHANGES BE FOLLOWED. THE
EVIDENCE ESTABLISHES THAT DURING THE NEXT SIX MONTHS THE PARTIES
EXCHANGED NUMEROUS LETTERS CONCERNING THE PROPOSED KMI REVISION AND, IN
ADDITION, HELD MEETINGS ON FIVE SEPARATE OCCASIONS TO DISCUSS THE
PROBLEMS INVOLVED. THROUGHOUT THIS PERIOD, THE COMPLAINANT CONSISTENTLY
TOOK THE POSITION THAT THE PROPOSED REVISION WAS IN CONFLICT WITH THE
NEGOTIATED AGREEMENT AND THAT THE RESPONDENT WAS BOUND TO NEGOTIATE THE
MATTER UNDER THE TERMS OF THE AGREEMENT. ON THE OTHER HAND, THE
RESPONDENT REPEATEDLY ASSERTED THAT THE KMI REVISION WAS NOT IN CONFLICT
WITH THE PARTIES' NEGOTIATED AGREEMENT AND THAT UNDER THE TERMS OF THE
AGREEMENT IT WAS REQUIRED ONLY TO CONSULT WITH THE COMPLAINANT. DESPITE
ITS STATED POSITION ON THE REQUIREMENT TO NEGOTIATE, THE COMPLAINANT
MADE SEVERAL SUGGESTIONS AND COUNTER-PROPOSALS IN RESPONSE TO REQUESTS
OR PROPOSALS ADVANCED BY THE RESPONDENT, SEVERAL OF WHICH WERE ADOPTED
BY THE RESPONDENT AND INCORPORATED INTO THE FINAL KMI REVISION.
IN AGREEMENT WITH THE HEARING EXAMINER, I FIND THAT THE KMI REVISION
DOES NOT CONFLICT WITH THE EXISTING SICK LEAVE PROVISION IN THE
NEGOTIATED AGREEMENT. THUS, THE REVISION DOES NOT IN ANY WAY CHANGE OR
TAKE AWAY RIGHTS GRANTED UNDER THE AGREEMENT BUT, BY REQUIRING A MEDICAL
CLEARANCE, IT IMPOSES A NEW AND DIFFERENT OBLIGATION UPON AN EMPLOYEE
WHO IS ABSENT ON SICK LEAVE. IN THIS REGARD, CONSISTENT WITH THE
HEARING EXAMINER'S CONCLUSION, I FIND THAT WHILE SUCH CHANGE DID NOT
CONFLICT WITH THE PARTIES' AGREEMENT, IT DID, IN FACT, CONSTITUTE A NEW
TERM OR CONDITION OF EMPLOYMENT FOR EMPLOYEES IN THE BARGAINING UNIT
WHICH NECESSARILY LEADS TO THE QUESTION OF THE RESPONDENT'S OBLIGATION,
IF ANY, TO NEGOTIATE WITH ITS EMPLOYEES' EXCLUSIVE BARGAINING
REPRESENTATIVE ON SUCH MATTER.
THE HEARING EXAMINER CONCLUDED THAT, UNDER THE NEGOTIATED AGREEMENT,
THE COMPLAINANT HAD WAIVED ITS RIGHT UNDER SECTION 11(A) OF THE ORDER TO
INSIST UPON NEGOTIATION OVER CHANGES IN CONDITIONS OF EMPLOYMENT EXCEPT
AS SET FORTH IN ARTICLE III, SECTION 7. IN MY VIEW, IN ORDER TO
ESTABLISH A WAIVER OF A RIGHT GRANTED UNDER THE EXECUTIVE ORDER, SUCH
WAIVER MUST BE CLEAR AND UNMISTAKABLE. THUS, A WAIVER WILL NOT BE FOUND
MERELY FROM THE FACT THAT AN AGREEMENT OMITS SPECIFIC REFERENCE TO A
RIGHT GRANTED BY THE EXECUTIVE ORDER, OR THAT A LABOR ORGANIZATION HAS
FAILED IN NEGOTIATIONS TO OBTAIN PROTECTION WITH RESPECT TO CERTAIN OF
ITS RIGHTS GRANTED BY THE ORDER. IN FINDING A WAIVER IN THIS CASE, THE
HEARING EXAMINER LIMITED HIS CONSIDERATION TO ARTICLE III, SECTIONS 1
/4/ AND 7 WHICH PERTAIN TO OBLIGATIONS OF THE EMPLOYER. HOWEVER, HE
FAILED TO CONSIDER ARTICLE V, SECTION 7 WHICH PERTAINS TO THE RIGHTS OF
THE UNION TO NEGOTIATE WITH THE EMPLOYER IN SITUATIONS WHERE AMENDMENT
OF THE PARTIES' AGREEMENT MAY BE WARRANTED. /5/ IN MY VIEW, WHEN READ
TOGETHER, THESE PROVISIONS DO NOT SHOW CLEARLY AND UNMISTAKABLY THAT THE
COMPLAINANT WAIVED ITS RIGHT TO NEGOTIATE ON THE INSTITUTION OF NEW
TERMS AND CONDITIONS OF EMPLOYMENT ON BARGAINING UNIT EMPLOYEES. UNDER
THESE CIRCUMSTANCES, I REJECT THE FINDING OF THE HEARING EXAMINER THAT
THE COMPLAINANT WAIVED ITS RIGHT TO NEGOTIATE IN THIS REGARD DURING THE
LIFE OF THE PARTIES' AGREEMENT AND FIND THAT THE RESPONDENT WAS REQUIRED
TO NEGOTIATE WITH THE COMPLAINANT BEFORE IMPLEMENTING THE KMI REVISION.
THE EVIDENCE ESTABLISHES THAT DURING THE PERIOD IN WHICH THE PARTIES
WERE EXCHANGING LETTERS AND MEETING ON THE KMI REVISIONS, THE
COMPLAINANT CONSISTENTLY TOOK THE POSITION THAT SUCH CONDUCT BY THE
PARTIES DID NOT CONSTITUTE NEGOTIATIONS AND THAT THE RESPONDENT SHOULD
FOLLOW THE REQUIREMENTS FOR CHANGES AS ENUMERATED IN THE NEGOTIATED
AGREEMENT. ON THE OTHER HAND, THE RESPONDENT CONSISTENTLY CONTENDED
THAT IT WAS OBLIGATED ONLY TO CONSULT WITH THE COMPLAINANT.
A REVIEW OF ALL OF THE EVIDENCE REVEALS THAT IN THE PERIOD AFTER THE
RESPONDENT ADVISED THE COMPLAINANT OF ITS INTENTION TO PUT INTO EFFECT
THE KMI REVISION EACH PARTY SENT APPROXIMATELY 8 LETTERS TO THE OTHER
AND 5 MEETINGS BETWEEN THE PARTIES TOOK PLACE. FURTHER, THE RESPONDENT,
ON NUMEROUS OCCASIONS, REQUESTED THE COMPLAINANT TO SUBMIT ANY
SUGGESTIONS IT HAD FOR CHANGES IN THE PROPOSED REVISION. AND, AS NOTED
ABOVE, DURING THIS PERIOD THE RESPONDENT MADE SEVERAL CHANGES BASED UPON
THE REQUESTS AND SUGGESTIONS SUBMITTED BY THE COMPLAINANT.
IN THE CONTEXT OF THESE EVENTS, IT IS CLEAR THAT THE PROPOSED
REVISION WAS DISCUSSED FULLY BY BOTH PARTIES AND THAT AS A PRACTICAL
MATTER-- REGARDLESS OF WHAT THE PARTIES CONSIDERED THEIR CORRESPONDENCE,
PROPOSALS AND DISCUSSIONS CONCERNING THE REVISION TO BE-- THE PARTIES
DID, IN FACT, ENGAGE IN NEGOTIATIONS REGARDING THE PROPOSED KMI
REVISION. /6/ UNDER THESE CIRCUMSTANCES, I FIND THAT THE RESPONDENT
SATISFIED ITS OBLIGATION TO NEGOTIATE WITH THE COMPLAINANT ON THE
PROPOSED REVISION. ACCORDINGLY, IN AGREEMENT WITH THE HEARING EXAMINER,
I SHALL ORDER THAT THE COMPLAINT HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 42-1762(CA-26)
BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
DECEMBER 4, 1972
NASA, KENNEDY SPACE CENTER
KENNEDY SPACE CENTER, FLORIDA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO)
EDWARD F. PARRY, DEPUTY CHIEF COUNSEL,
CODE CC, KENNEDY SPACE CENTER, FLORIDA 32899,
AND
WILLIAM J. HOLM, LABOR-MANAGEMENT RELATIONS
OFFICER, KENNEDY SPACE CENTER, FLORIDA 32899,
FOR THE RESPONDENT
GARY B. LANDSMAN, ASSISTANT TO THE STAFF COUNSEL,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
400 FIRST STREET, N.W., WASHINGTON, D.C. 20001,
AND
CLAUDE E. WOLFE, PRESIDENT, AFGE LOCAL 2498, BOX 2102,
KENNEDY SPACE CENTER, FLORIDA 32815, FOR THE
COMPLAINANT
BEFORE: WILLIAM NAIMARK, HEARING EXAMINER
THE PROCEEDING HEREIN AROSE UNDER EXECUTIVE ORDER 11491 (HEREIN
CALLED THE ORDER) PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON
MARCH 20, 1972, BY THE REGIONAL ADMINISTRATOR OF THE UNITED STATES
DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, ATLANTA
REGION.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (HEREIN CALLED
THE COMPLAINANT) INITIATED THIS CASE BY FILING A COMPLAINT ON OCTOBER 1,
1971, ON BEHALF OF ITS LOCAL 2498 (HEREIN CALLED THE UNION) AGAINST
NASA, KENNEDY SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA (HEREIN CALLED
THE RESPONDENT). THE COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTION
19(1)(6) OF THE ORDER BY INFORMING THE UNION PRESIDENT ON APRIL 30,
1971, THAT MANAGEMENT WOULD IMPLEMENT CHANGES TO ITS MEDICAL AND
ENVIRONMENTAL HEALTH PROGRAMS AT KENNEDY SPACE CENTER (HEREIN REFERRED
TO AS KSC), AND BY REFUSING TO NEGOTIATE THESE CHANGES WITH THE UNION
WHICH WERE ALLEGEDLY IN VIOLATION OF CERTAIN ARTICLES OF THE AGREEMENT
BETWEEN THE UNION AND RESPONDENT. /1/
PRIOR TO THE HEARING, RESPONDENT FILED TWO MOTIONS WITH THE ASSISTANT
SECRETARY HEREIN. MOTION NO. 1 WAS TO DISMISS THE COMPLAINT FOR LACK OF
JURISDICTION. IT WAS CONTENDED BY RESPONDENT THAT THE ASSISTANT
SECRETARY, BY VIRTUE OF SECTION 13(A) OF THE AMENDED ORDER, HAD NO
JURISDICTION SINCE THE DISPUTE INVOLVED A MATTER OF CONTRACT
INTERPRETATION OR APPLICATION WHICH REQUIRED RESOLUTION BY WAY OF THE
GRIEVANCE PROCEDURE UNDER THE CONTRACT. MOTION NO. 2 REQUESTED THE
ASSISTANT SECRETARY TO RECALL THIS CASE FROM THE REGIONAL ADMINISTRATOR
AND EITHER DECIDE IT ON THE BASIS OF THE RECORD, OR REMAND THE MATTER IN
ACCORDANCE WITH EXISTING REGULATIONS, DECISIONS AND RULINGS OF THE
ASSISTANT SECRETARY. THE BASIS OF THE SECOND MOTION WAS THAT THE
REGIONAL ADMINISTRATOR HAD NOT DETERMINED THAT A REASONABLE BASIS
EXISTED FOR THE COMPLAINT, AND HENCE A NOTICE OF HEARING WAS NOT PROPER
UNDER SECTION 203.8 OF THE RULES AND REGULATIONS. FURTHER, THE
"REVERSAL" OF THE REGIONAL ADMINISTRATOR'S DETERMINATION BY THE
ASSISTANT SECRETARY, UPON A REQUEST FOR REVIEW, DID NOT REFLECT THAT THE
REGIONAL ADMINISTRATOR'S DETERMINATION HAD BEEN REPLACED. ACTION BY THE
ASSISTANT SECRETARY TOOK THE FORM OF A LETTER DATED FEBRUARY 29, 1972,
ADDRESSED TO DENNIS GARRISON, COMPLAINANT'S VICE PRESIDENT, 5TH
DISTRICT, AS FOLLOWS:
"I AM OF THE OPINION THAT THE REQUEST FOR REVIEW RAISES ISSUES WHICH
CAN BE RESOLVED BEST
ON THE BASIS OF RECORD TESTIMONY. ACCORDINGLY, THE REGIONAL
ADMINISTRATOR IS DIRECTED TO
ISSUE PROMPTLY A NOTICE OF HEARING IN THIS PROCEEDING."
THUS RESPONDENT CONTENDS THERE HAS BEEN NO DETERMINATION BY THE
REGIONAL ADMINISTRATOR THAT A REASONABLE BASIS EXISTS FOR A COMPLAINT,
WHICH IS A PREREQUISITE FOR A HEARING.
ON APRIL 20, 1972, THE ASSISTANT SECRETARY OF LABOR SENT A TELEGRAM
TO THE PARTIES AND THE REGIONAL ADMINISTRATOR, STATING THAT HE DECLINED
TO RULE UPON THE MOTIONS SINCE THEY WERE NOT ADDRESSED TO THE REGIONAL
ADMINISTRATOR AS REQUIRED UNDER SECTION 203.18(A) OF THE REGULATIONS.
THE TELEGRAM RECITED THAT RESPONDENT COULD REFILE THE MOTIONS WITH THE
HEARING EXAMINER. ALTHOUGH RESPONDENT MAINTAINS IT NEVER RECEIVED THE
WIRE, A COPY OF THE TELEGRAM WAS SENT TO ITS COUNSEL UNDER DATE OF MAY
4, 1972, AND RECEIVED BY COUNSEL ON MAY 8, 1972. AT THE HEARING
RESPONDENT REQUESTED THE UNDERSIGNED TO CONSIDER THE MOTIONS IN HIS
REPORT AND RECOMMENDATIONS INASMUCH AS NO WORD HAD BEEN RECEIVED AS TO
THE RULING OF THE ASSISTANT SECRETARY. IN VIEW OF THE RULING BY THE
ASSISTANT SECRETARY AND THE REQUEST AT THE HEARING BY RESPONDENT, THE
UNDERSIGNED WILL MAKE RECOMMENDATIONS HEREIN WITH RESPECT TO BOTH OF
RESPONDENT'S MOTIONS.
MOTION NO. 1 INVOLVES A CONSIDERATION OF SECTION 13 OF THE ORDER, AND
WILL BE TREATED LATER IN THIS REPORT.
IN RESPECT TO MOTION NO. 2, THE UNDERSIGNED FINDS NO VALIDITY
THERETO. RESPONDENT'S CONTENTION THAT NO DETERMINATION HAS BEEN MADE BY
THE REGIONAL ADMINISTRATOR OF A REASONABLE BASIS FOR THE COMPLAINT IS
REJECTED. THE NOTICE OF HEARING ON COMPLAINT SPECIFICALLY RECITES "IT
APPEARING IN ACCORDANCE WITH SECTION 203.8 OF THE REGULATIONS OF THE
ASSISTANT SECRETARY THAT A HEARING SHOULD BE HELD * * * . THUS, DESPITE
HIS EARLIER RULING, THE REGIONAL ADMINISTRATOR'S NOTICE OF HEARING
CARRIES WITH IT THE IMPLICATION THAT A REASONABLE BASIS EXISTS FOR THE
COMPLAINT. ACCORDINGLY, I RECOMMEND THE ASSISTANT SECRETARY DENY MOTION
NO. 2.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON APRIL 25, 1972, AT
TITUSVILLE, FLORIDA. BOTH PARTIES WERE REPRESENTED BY COUNSEL, AND WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO
EXAMINE AS WELL AS CROSS-EXAMINE WITNESSES. THEREAFTER, BOTH THE UNION
AND THE COMPLAINANT FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED BY THE
UNDERSIGNED. /2/
UPON THE ENTIRE RECORD IN THIS CASE, FROM HIS OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, THE UNDERSIGNED MAKES THE FOLLOWING FINDINGS
CONCLUSIONS AND RECOMMENDATIONS:
I. THE UNFAIR LABOR PRACTICE
A. INTRODUCTION AND CONTENTIONS
THE UNION AND THE RESPONDENT ARE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT /3/ SIGNED ON JUNE 11, 1970, COVERING THE CIVIL SERVICE
EMPLOYEES OF THE KSC. BY ITS TERMS THE CONTRACT REMAINS IN EFFECT FOR
THREE (3) YEARS FROM ITS EFFECTIVE DATE. ARTICLE XVI OF THE CONTRACT
WHICH IS ENTITLED "SICK LEAVE," PROVIDES IN SECTION 5 AS FOLLOWS:
"NORMALLY, ABSENCES IN EXCESS OF THREE (3) WORKING DAYS MUST BE
SUPPORTED BY A DOCTOR'S
CERTIFICATE. IN CERTAIN INSTANCES, IT MAY BE UNREASONABLE TO REQUIRE
SUCH A CERTIFICATE. IN
SUCH CASES, A SIGNED STATEMENT BY THE EMPLOYEE STATING THE NATURE OF
HIS INCAPACITY AND THE
REASONS WHY A CERTIFICATE WAS NOT OBTAINED MAY BE ACCEPTED IN LIEU OF
A CERTIFICATE. THE
CERTIFICATE OR OTHER EVIDENCE OF INCAPACITY MUST BE SUBMITTED TO THE
EMPLOYEE'S SUPERVISOR
WITHIN ONE (1) WEEK AFTER RETURN TO DUTY."
AFTER CONSIDERABLE DISCUSSION WITH THE UNION COMMENCING IN JANUARY
1971, /4/ TOGETHER WITH AN EXCHANGE OF CORRESPONDENCE-- WHICH WILL BE
ADVERTED TO HEREINBELOW-- RESPONDENT ANNOUNCED A NEW POLICY AS TO ITS
MEDICAL AND ENVIRONMENTAL HEALTH PROGRAM. IT TOOK THE FORM OF A
REVISION OF THE KENNEDY MANAGEMENT INSTRUCTION (HEREIN CALLED KMI) AND
WAS SET FORTH IN THE KSC BULLETIN ISSUES /5/ OF OCTOBER 29, 1971, AND
NOVEMBER 5, 1971. IT PROVIDED AS FOLLOWS:
"SICK LEAVE FOR FIVE OR MORE CONSECUTIVE WORK DAYS: NASA EMPLOYEES
WHO HAVE BEEN ON SICK
LEAVE FOR FIVE OR MORE CONSECUTIVE WORK DAYS MUST RECEIVE A MEDICAL
CLEARANCE (INCLUDING SUCH
PHYSICAL EXAMINATION AS IS NECESSARY) FROM THE KSC OCCUPATIONAL
HEALTH FACILITY BEFORE
RETURNING TO DUTY. IT IS DESIRABLE THAT MEDICAL CLEARANCE BE
OBTAINED BY EMPLOYEES WHO HAVE
BEEN ON SICK LEAVE FOR THREE CONSECUTIVE WORKDAYS. WHEN POSSIBLE,
ARRANGEMENTS FOR THE
CLEARANCE SHOULD BE MADE BY THE EMPLOYEE'S SUPERVISOR THROUGH THE
PERSONNEL MANAGEMENT
ASSISTANT BRANCH, AD-PER-3, IN ADVANCE OF THE EXPECTED DATE OF RETURN
TO WORK. THE CLEARANCE
PROCESS PRIOR TO RETURN TO DUTY DESCRIBED HEREIN (INCLUDING SUCH
EXAMINATION AS MAY BE
NECESSARY) IS NOT A 'FITNESS FOR DUTY' DETERMINATION AS DISCUSSED IN
S10-10 OF THE FEDERAL
PERSONNEL MANUAL SUPPLEMENT 831-1, AND WILL NOT BE THE BASIS FOR
PERMANENT MEDICAL
DISQUALIFICATION OF AN EMPLOYEE FOR HIS OFFICIAL POSITION.
(IS-MED/AD-PER)"
THE UNION HEREIN MAINTAINED AT THE OUTSET, AND CONTINUES TO CONTENT,
THAT THIS PROVISION OF THE KMI WAS IN CONFLICT WITH THE CONTRACT BETWEEN
THE PARTIES. IT TAKES THE POSITION THAT RESPONDENT EFFECTED A
UNILATERAL CHANGE WHICH WAS NEGOTIABLE UNDER ARTICLE III, SECTION 7 OF
THE CONTRACT; THAT THIS WAS A MATTER OF LOCAL DISCRETION WHICH RESULTED
IN CHANGING THE OBLIGATIONS AND RESPONSIBILITIES OF EMPLOYEES SET FORTH
IN ARTICLE XVI OF THE AGREEMENT. FURTHER, RESPONDENT WAS REQUIRED TO
FOLLOW THE PROCEDURE DELINEATED IN ARTICLE XLII, SECTION 4 THEREOF, IN
ORDER TO MODIFY OR AMEND THE AGREEMENT. THE UNION INSISTS THAT BY
FAILING TO DO SO AND NOT NEGOTIATING UNDER THE CONTRACT AS PRESCRIBED--
WHETHER THE PROVISION IN KMI IS A CHANGE IN THE CONTRACT OR THE
IMPOSITION OF A NEW OBLIGATION-- RESPONDENT HAS VIOLATED SECTION
19(A)(6) OF THE ORDER.
RESPONDENT CONTENDS IT HAS NOT CHANGED THE AGREEMENT BY THIS NEW KMI
PROVISION; THAT THE REQUIREMENT OF A MEDICAL CLEARANCE IS NOT FOR THE
PURPOSE OF JUSTIFYING SICK LEAVE, BUT TO ESTABLISH WHETHER AN EMPLOYEE
IS STILL ILL OR UNABLE TO ATTEND TO PARTICULAR WORK ASSIGNMENTS. IT
AVERS THE PROVISION IS NOT IN CONFLICT WITH THE CONTRACT; THAT
RESPONDENT IS ONLY OBLIGED TO "CONSULT" WITH THE UNION IN RESPECT TO THE
MEDICAL CLEARANCE, AND THIS OBLIGATION IT HAS FULFILLED. RESPONDENT
ALSO INSISTS THE ASSISTANT SECRETARY HAS NO JURISDICTION SINCE THE
DISPUTE IS ALLEGEDLY ONE OF CONTRACT APPLICATION OR INTERPRETATION UNDER
SECTION 13 OF THE ORDER.
B. ISSUES
APART FROM THE PROCEDURAL AND COLLATERAL MATTERS RAISED BY EITHER
PARTY HEREIN, THE ESSENTIAL ISSUES ARE AS FOLLOWS:
1. IS THE DISPUTE BETWEEN THE PARTIES-- OVER WHETHER THE REVISION OF
KMI REQUIRING A
MEDICAL CLEARANCE IS NEGOTIABLE-- A DISPUTE CONCERNING THE
INTERPRETATION OR APPLICATION OF
THE CONTRACT WHICH SHOULD BE HANDLED UNDER ITS GRIEVANCE PROCEDURE?
2. IF NOT, WAS RESPONDENT OBLIGATED TO NEGOTIATE THE REVISION WITH
THE UNION UNDER THE
TERMS OF THE CONTRACT, OR WAS IT MERELY REQUIRED TO CONSULT WITH THE
UNION REGARDING SAME?
3. IF RESPONDENT'S OBLIGATION WAS LIMITED TO CONSULTATION, DID
RESPONDENT CONSULT WITH THE
UNION WITHIN THE MEANING OF SECTION 19(A)(6) OF THE ORDER?
APPLICABLE CONTRACT PROVISIONS
IN ADDITION TO THE ARTICLE OF THE AGREEMENT HEREINABOVE-MENTIONED,
THERE ARE OTHER APPLICABLE PROVISIONS OF THE AGREEMENT WHICH BEAR
CONSIDERATION HEREIN. IN THE INTEREST OF BREVITY, THE UNDERSIGNED WILL
SET FORTH ONLY THE PERTINENT LANGUAGE OF SOME SECTIONS OF THE CONTRACT.
SECTION 1. THE EMPLOYER IS OBLIGATED TO CONSULT WITH THE UNION
CONCERNING PERSONNEL POLICIES, THE PERSONNEL IMPLICATIONS OF CERTAIN
MANAGEMENT DECISIONS, AND ON MATTERS DIRECTLY AFFECTING WORKING
CONDITIONS . . . .
SECTION 7. THE EMPLOYER AGREES THAT PERSONNEL POLICIES WHICH ARE
WITHIN LOCAL DISCRETIONARY AUTHORITY WILL NOT BE CHANGED OR IMPLEMENTED
WITHOUT PRIOR NEGOTIATIONS WITH THE UNION WHEN THEY ARE IN CONFLICT WITH
THIS AGREEMENT.
SECTION 7. IT IS THE RIGHT OF THE UNION TO NEGOTIATE WITH THE
EMPLOYER ON MATTERS OF LOCAL DISCRETION WHICH MAY AMEND THE PROVISIONS
OF THIS AGREEMENT AND TO PRESENT ITS VIEWS TO THE EMPLOYER AT ANY TIME
ON ANY MATTER . . . FORMAL AMENDMENTS REQUIRED TO MODIFY THE PROVISIONS
OF THIS AGREEMENT WILL BE PROCESSED FOR APPROVAL CONSIDERATION IN THE
SAME MANNER REQUIRED FOR APPROVAL OF THIS BASIC AGREEMENT.
SECTION 1. CONSULTATION AND NEGOTIATION, FOR THE PURPOSES OF THIS
AGREEMENT, SHALL BE DEFINED AS FOLLOWS:
A. CONSULTATION IS DEFINED AS A CONFERENCE OR DISCUSSION BETWEEN
AUTHORIZED
REPRESENTATIVES OF THE UNION AND THE EMPLOYER, INVOLVING THE EXCHANGE
OF VIEWS AND
RECOMMENDATIONS OR TO KEEP THE UNION INFORMED WITH REGARD TO SPECIFIC
ACTIONS CONTEMPLATED OR
PLANNED BY THE EMPLOYER. CONSULTATION MAY TAKE PLACE ON ANY MATTER
OF INTEREST TO BOTH
PARTIES. CONSULTATION WILL USUALLY BE UTILIZED IN FORMULATING THE
GENERAL BASIS FOR
MANAGEMENT ACTIONS WHICH ARE WITHIN OR SIMILAR TO THOSE MATTERS
COVERED BY THE BROAD SCOPE OF
THIS AGREEMENT, SUCH AS: POLICIES AFFECTING WORKING CONDITIONS
INCLUDING . . . SAFETY
. . . EMPLOYEES SERVICES . . . GRANTING OF LEAVE . . . HOURS OF WORK,
SHIFT CHANGES . . .
B. NEGOTIATION IS DEFINED AS A CONFERENCE OR DISCUSSION BETWEEN
AUTHORIZED REPRESENTATIVES
OF THE UNION AND THE EMPLOYER WHEREIN ORAL AND WRITTEN PROPOSALS ARE
EXCHANGED AND IN WHICH
WRITTEN AGREEMENT BETWEEN THE PARTIES IS THE MAJOR OBJECTIVE, (E.G.,
GENERALLY THE SAME
MATTERS WHICH ARE SUBJECT TO CONSULTATION, THIS AGREEMENT,
RENEGOTIATION OF THIS AGREEMENT
UPON ITS EXPIRATION, RENEGOTIATION OF PORTIONS OF THIS AGREEMENT TO
MAKE THEM CONSISTENT WITH
CHANGES IN LAW, RULE OR REGULATIONS, ETC.)
SECTION 2. THE PURPOSE OF THIS ARTICLE IS TO PROVIDE A MUTUALLY
SATISFACTORY METHOD FOR THE SETTLEMENT OF GRIEVANCES AND DISPUTES
BETWEEN EMPLOYEE(S) AND THE EMPLOYER IN MATTERS WHICH INCLUDE BUT ARE
NOT LIMITED TO THE INTERPRETATION AND APPLICATION OF THIS AGREEMENT OR
ANY ALLEGED VIOLATION THEREOF, OR THE INTERPRETATION AND APPLICATION OF
ANY RULE, REGULATION OR PERSONNEL PRACTICE WHERE THE EMPLOYER HAS
DISCRETIONARY AUTHORITY.
SECTION 4. THIS AGREEMENT MAY BE REOPENED FOR AMENDMENT OR CHANGE AT
ANY TIME BY MUTUAL AGREEMENT OF THE PARTIES. HOWEVER, IT IS MUTUALLY
AGREED THAT A BONA FIDE ATTEMPT SHALL BE MADE TO HOLD THE NUMBER OF
AMENDMENTS AND CHANGES TO A MINIMUM . . . .
D. THE KENNEDY MANAGEMENT INSTRUCTIONS (KMI)
THE DIRECTOR OF THE KSC ISSUES KMI WHICH ARE LOCAL REGULATIONS OR
STANDARD OPERATING PROCEDURES FOR THE CENTER. AN EARLIER KMI 1810.1B
GOVERNED THE OPERATION OF THE MEDICAL FACILITY OF KSC (GIVING OF XRAYS,
ADMINISTERING OF PHYSICAL EXAMINATIONS, ETC.), BUT DID NOT PROVIDE FOR A
CLEARANCE UPON RETURNING FROM SICK LEAVE. THE CLAUSE IN CONTROVERSY, AS
SET FORTH HEREINABOVE, WAS A REVISION TO KML 1810.1B.
BOTH EUBANKS BARNHILL, EXECUTIVE ASSISTANT TO THE DIRECTOR OF
ADMINISTRATION AND WILLIAM J. HOLM, LABOR-MANAGEMENT RELATIONS OFFICER
FOR RESPONDENT, TESTIFIED AS TO THE PURPORT OF ARTICLE XVI, SECTION 5
(SICK LEAVE CLAUSE) AND THE REVISION TO KMI (MEDICAL CLEARANCE CLAUSE).
THEY TESTIFIED, AND I FIND, THAT UNDER ARTICLE XVI, SECTION 5, AN
EMPLOYEE WHO IS ABSENT ON SICK LEAVE FOR MORE THAN THREE DAYS IS
EXPECTED TO PRESENT A DOCTOR'S CERTIFICATE UPON RETURNING TO WORK. THE
PURPOSE OF THIS REQUIREMENT IS TO ASSURE KSC THAT THE EMPLOYEE IS
ENTITLED TO SICK LEAVE, AND IT IS AN ADDED SAFEGUARD THAT HE HAS NOT
ABUSED HIS LEAVE PRIVILEGES. IT IS MERELY AN APPROVAL FOR SICK LEAVE.
FURTHER, THE KMI REVISION, WHICH REQUIRES MEDICAL CLEARANCE BY THE
OCCUPATIONAL HEALTH FACILITY (HEREIN CALLED OHF) IF AN EMPLOYEE HAS BEEN
ON SICK LEAVE FOR FIVE OR MORE DAYS, DEALS WITH THE HEALTH OF THE
EMPLOYEE UPON HIS RETURN AND WHETHER HE CAN PERFORM THE SAME WORK AS
PREVIOUSLY. IT IS NOT AN APPROVAL FOR SICK LEAVE, BUT AN EXAMINATION--
PHYSICAL OR OTHERWISE-- TO ASCERTAIN WHETHER THE EMPLOYEE, UPON HIS
RETURN, IS ABLE TO PERFORM THE SAME DUTIES. THE RECORD FURTHER
INDICATES THAT RESPONDENT CONSIDERED IT IMPORTANT FOR ITS OWN OHF TO
INSPECT THE EMPLOYEE RETURNING FROM SICK LEAVE SINCE A PRIVATE PHYSICIAN
WOULD NOT BE FAMILIAR WITH THE STRAINS OR STRESSES OF THE PARTICULAR JOB
PERFORMED BY THE EMPLOYEE.
IT IS ALSO CONCEDED BY RESPONDENT THAT AN EMPLOYEE, UNDER THIS KMI
REVISION, MIGHT BE ASSIGNED TO OTHER DUTIES AND RESPONSIBILITIES IF IT
BE DETERMINED BY OHF THAT HE IS NOT ABLE TO PERFORM HIS JOB AFTER THE
PARTICULAR ILLNESS. HOWEVER, HOLM AVERS THAT IN THIS INSTANCE A CHANGE
OF ASSIGNMENT WOULD BE TEMPORARY. IF IT BECAME APPARENT TO MANAGEMENT
THAT THE ILLNESS WAS SERIOUS AND OF A PERMANENT NATURE, THEY WOULD
INVOKE THE PROVISIONS OF THE FEDERAL PERSONNEL MANUAL, CHAPTER 339,
WHICH GOVERN THE "FITNESS FOR DUTY" PHYSICAL EXAMINATIONS. THIS LATTER
PROCEDURE IS RELATED TO RETIREMENT DISABILITY AND A DETERMINATION MUST
THEN BE MADE AS TO WHETHER AN EMPLOYEE IS SUITED FOR THE JOB. THIS
COULD RESULT IN A PERMANENT JOB CHANGE, DOWNGRADING, OR A SEPARATION
FROM RESPONDENT. THE REVISION PROVIDES, AND THE FACTS SHOW, MANAGEMENT
DID NOT INTEND THAT THE MEDICAL CLEARANCE REQUIRED UNDER THE KMI BE A
"FITNESS FOR DUTY" PHYSICAL EXAMINATION. RATHER IS THE KMI CLEARANCE
INTENDED TO COVER A ROUTINE ABSENCE FROM WORK BECAUSE OF ILLNESS WHEREIN
RESPONDENT IS CONCERNED ABOUT AN EMPLOYEE'S READINESS TO RETURN TO HIS
JOB.
E. CORRESPONDENCE AND MEETINGS BETWEEN THE PARTIES
COMMENCING ON JANUARY 13 A SERIES OF LETTERS WAS EXCHANGED BETWEEN
THE PARTIES REGARDING THE PROPOSED REVISION TO KMI CONCERNING THE
MEDICAL AND ENVIRONMENTAL HEALTH PROGRAM OF KSC. ON THAT DATE EUBANKS
BARNHILL, AS ACTING CHIEF OF THE STAFFS PROGRAM BRANCH, WROTE ELMER L.
GREEN, UNION PRESIDENT, A LETTER /7/ ASKING FOR HIS COMMENTS RE THE
PROPOSED REVISION, A COPY OF WHICH WAS MAILED. HIS PROPOSAL, WHILE NOT
IN THE LANGUAGE AS FINALLY ADOPTED, PROVIDED, IN ESSENCE, THAT EMPLOYEES
WHO HAVE BEEN ON SICK LEAVE FOR MORE THAN THREE WORKDAYS MAY NOT RETURN
TO DUTY UNTIL THEY RECEIVE A MEDICAL CLEARANCE (INCLUDING AND PHYSICAL
EXAMINATION AS IS NECESSARY) FROM OHF.
A REPLY LETTER /8/ FROM GREEN TO BARNHILL DATED JANUARY 14 STATED THE
PROPOSED REVISION OF KMI IS IN CONFLICT WITH THE CONTRACT AND SHOULD NOT
BE IMPLEMENTED. THE UNION INSISTED THAT MANAGEMENT SHOULD FOLLOW THE
PROCEDURES SET FORTH IN THE AGREEMENT FOR NEGOTIATING AMENDMENTS OR
CHANGES (ARTICLE XLII, SECTION 4) IF IT DESIRED TO NEGOTIATE THE
REVISION.
UNDER DATE OF JANUARY 18, BARNHILL SENT GREEN A REVISED "ADDENDUM"
WHICH MODIFIED THE PROPOSED KMI, AND THE ACCOMPANYING LETTER /9/ STATED
IT WAS DONE TO COMPLY WITH THE RESPONDENT'S OBJECTION THAT THE KMI
REVISION WAS IN CONFLICT WITH THE AGREEMENT. THE MODIFICATION CONSISTED
OF ELIMINATING THE CLAUSE REQUIRING AN EMPLOYEE WHO IS HOSPITALIZED OR
ON EXTENDED SICK LEAVE TO FURNISH THE KSC EXAMINING PHYSICIAN A
STATEMENT FROM HIS PRIVATE PHYSICIAN INDICATING HE HAS BEEN RELEASED TO
RETURN TO DUTY. GREEN REPLIED BY A LETTER /10/ DATED JANUARY 20, IN
WHICH HE COMMENTED THE REVISION WAS STILL IN CONFLICT WITH THE CONTRACT
AND THAT RESPONDENT SHOULD FOLLOW THE PROCEDURES OUTLINED IN THE
AGREEMENT TO NEGOTIATE AMENDMENTS OR CHANGES THERETO.
ONCE AGAIN THE PARTIES EXCHANGE LETTERS. /11/ RESPONDENT'S
REPRESENTATIVE WROTE ON JANUARY 22, SAYING IT HAD REVIEWED THE CONTRACT
AND COULD FIND NO CONFLICT, BUT WOULD WITHHOLD ACTION UNTIL JANUARY 27
FOR THE UNION TO MAKE COMMENTS ON THE PROPOSAL. THE UNION REPLIED ON
JANUARY 25 IN A SIMILAR VEIN AS ITS PRIOR RESPONSES, AND RESPONDENT SENT
A LETTER /12/ DATED JANUARY 27 RENEWING ITS DECLARED INTENTION TO
IMPLEMENT THE KMI REVISION.
A MEETING BETWEEN THE PARTIES TOOK PLACE ON FEBRUARY 2 IN THE OFFICE
OF MR. HURSEY, CHIEF OF PERSONNEL OF KSC. THE UNION REITERATED ITS
POSITION THAT THE PROPOSED REVISION WAS A NEGOTIABLE ITEM, WHILE
MANAGEMENT MAINTAINED IT WAS ONLY REQUIRED TO CONSULT WITH THE UNION.
DISCUSSION ENSUED REGARDING THE ENTIRE PROPOSAL, AND RESPONDENT THEN
AGREED TO CHANGE ITS TIME REQUIREMENT FROM THREE TO FIVE DAYS BEFORE A
MEDICAL CLEARANCE IS NECESSARY AFTER SICK LEAVE. HOWEVER, THE UNION
CONTINUED TO INSIST THAT RESPONDENT WAS IN VIOLATION OF ARTICLE III,
SECTION 7 OF THE CONTRACT.
BARNHILL WROTE A LETTER /13/ ON FEBRUARY 3 TO GREEN RECITING THAT AS
A RESULT OF THE MEETING THE PREVIOUS DAY MANAGEMENT MADE TWO CHANGES IN
THE PROPOSED REVISION. IT ADDED THE WORD "CONSECUTIVE" AND MADE THE
TIME CHANGE FROM THREE TO FIVE DAYS, SO THAT THE PROPOSED CLAUSE READ AS
FOLLOWS:
"NASA EMPLOYEES WHO HAVE BEEN ON SICK LEAVE FOR FIVE OR MORE
CONSECUTIVE WORKDAYS MAY NOT
RETURN TO DUTY UNTIL THEY HAVE RECEIVED A MEDICAL CLEARANCE
(INCLUDING SUCH PHYSICAL
EXAMINATION AS IS NECESSARY FROM THE KSC OCCUPATIONAL HEALTH
FACILITY. WHERE POSSIBLE
ARRANGEMENTS FOR THE CLEARANCE SHOULD BE MADE BY THE EMPLOYEE'S
SUPERVISOR THROUGH THE
PERSONNEL MANAGEMENT ASSISTANCE BRANCH, AD-PER-3 IN ADVANCE OF THE
EXPECTED DATE OF RETURN TO
WORK."
GREEN REPLIED BY LETTER /14/ DATED FEBRUARY 4 STATING THAT THE
PROPOSED PHYSICAL EXAMINATION IS A FITNESS FOR DUTY PHYSICAL, AND AN
EMPLOYEE SHOULD NOT BE REQUIRED TO UNDERGO IT EXCEPT AS DICTATED BY THE
CIVIL SERVICE COMMISSION. THE UNION DECLARED THEREIN THAT EMPLOYEES
SHOULD HAVE THE RIGHT TO BE EXAMINED BY A LICENSED PHYSICIAN RATHER THAN
A KSC CONTRACTOR PHYSICIAN WHO MAY NOT BE LICENSED IN FLORIDA. FURTHER,
THE UNION REQUESTED THAT RESPONDENT SUBMIT THE MATTER TO NASA
HEADQUARTERS, AND THAT THE REVISION NOT BE IMPLEMENTED UNTIL THE UNION
OBTAINED AN OPINION FROM ITS NATIONAL OFFICE AS TO WHETHER THE CHANGE IS
IN CONFLICT WITH THE AGREEMENT.
UPON RECEIVING A LETTER /15/ DATED FEBRUARY 5 FROM BARNHILL THAT THE
MATTERS RAISED BY THE UNION WERE NOT GERMANE, AND THAT THE MEDICAL
SERVICES OFFICE WOULD BE ASKED TO INCLUDE THE CHANGE IN ITS INSTRUCTION,
GREEN WROTE /16/ DR. KURT H. DEBUS, DIRECTOR OF KSC, REQUESTING HIM TO
MEET WITH THE UNION AND DISCUSS THE REVISION.
ANOTHER MEETING WAS ACCORDINGLY HELD ON FEBRUARY 23 AT WHICH UNION
REPRESENTATIVES GREEN AND CLAUDE E. WOLFE, FIRST VICE-PRESIDENT, MET
WITH MR. VAN STADEN, DIRECTOR OF ADMINISTRATION, KSC, AS WELL AS OTHER
MANAGEMENT REPRESENTATIVES. THE PARTIES REPEATED THEIR RESPECTIVE
POSITIONS AT THIS MEETING. THE UNION CONTENDED THE REVISION WOULD
CHANGE ARTICLE XVI, SECTION 5, OR RENDER IT USELESS SINCE AN EMPLOYEE
WOULD HAVE NEW OBLIGATIONS IMPOSED UPON HIM, AND IT INSISTED MANAGEMENT
MUST NEGOTIATE THE PROPOSAL. RESPONDENT AVERRED THERE WAS NO CHANGE IN
ANY CONTRACT TERM, NO CONFLICT WITH THE AGREEMENT ITSELF, AND THUS IT
WAS ONLY REQUIRED TO CONSULT ABOUT THE MATTER.
A FURTHER MEETING TOOK PLACE ON APRIL 20 IN AN EFFORT TO RESOLVE THE
DISPUTE BETWEEN THE UNION AND RESPONDENT. MANAGEMENT SOUGHT PARTICULARS
AS TO HOW THE PROPOSAL EITHER CONFLICTED WITH THE AGREEMENT OR COULD
RESULT IN ABUSE. HOWEVER, RECORD TESTIMONY REFLECTS THAT THE PARTIES
ONCE AGAIN RESTATED THEIR POSITIONS AND DISAGREED AS TO RESPONDENT'S
OBLIGATION.
ANOTHER EXCHANGE OF LETTERS /17/ BETWEEN THE PARTIES RESULTED IN
RESPONDENT ADDING SOME NEW LANGUAGE TO THE KMI REVISION WHICH PROVIDED
(A) IT WAS DESIRABLE THAT MEDICAL CLEARANCE BE OBTAINED BY EMPLOYEES ON
SICK LEAVE FOR MORE THAN THREE CONSECUTIVE DAYS (THE KMI STILL RETAINED
THE MANDATORY CLEARANCE FOR EMPLOYEES ON SICK LEAVE FOR FIVE OR MORE
CONSECUTIVE DAYS); (B) THE CLEARANCE PROCESS WAS NOT DEEMED TO BE A
"FITNESS FOR DUTY" DETERMINATION UNDER THE FEDERAL PERSONNEL MANUAL.
RESPONDENT ADVISED THE UNION THAT THE DRAFT ENCLOSED TO THE LATTER WAS A
FINAL ONE, AND KSC INTENDED TO PROCEED WITH ITS IMPLEMENTATION.
SUBSEQUENCE CORRESPONDENCE BETWEEN THE PARTIES LED TO MEETINGS ON
JUNE 10 AND 14 AT WHICH DISCUSSIONS TOOK PLACE IN AN EFFORT TO SETTLE
THE ISSUE. THE UNION HAD FILED AN UNFAIR LABOR PRACTICE CHARGE BY
LETTER /18/ DATED MAY 13 SENT FROM GARRISON TO DEBUS. IN A FURTHER
EFFORT TO RESOLVE THE MATTER, GREEN SENT RESPONDENT THE UNION'S NEW
PROPOSAL /19/ ON MEDICAL CLEARANCE POLICY WHICH MADE SEVERAL CHANGES IN
THE PROPOSED KMI, CHIEF OF WHICH REQUIRED A CONCURRENCE FROM AN
EMPLOYEE'S PRIVATE PHYSICIAN BEFORE OHF DOCTORS COULD RECOMMEND THAT AN
EMPLOYEE WHO HAS BEEN ON SICK LEAVE NOT BE ALLOWED TO PERFORM HIS
DUTIES. MANAGEMENT WOULD NOT AGREE TO THIS PROVISION REQUIRING WRITTEN
CONCURRENCE FROM A PRIVATE PHYSICIAN, AND IN A LETTER /20/ DATED JULY 9,
WILLIAM J. HOLM, LABOR-MANAGEMENT RELATIONS OFFICER, SO ADVISED THE
UNION. HE DID AGREE TO DELETE THE CLAUSE RE THE DESIRABILITY OF
OBTAINING A MEDICAL CLEARANCE AFTER THREE DAYS, AS WELL AS TO REVISE THE
SICK LEAVE PERIOD REQUIRING MEDICAL CLEARANCE FROM FIVE OR MORE TO SEVEN
OR MORE CONSECUTIVE WORKDAYS. SEVERAL OTHER SUGGESTED CHANGES WERE
ADVANCED BY MANAGEMENT.
THE FOREGOING PROPOSALS BY BOTH THE UNION AND RESPONDENT PROVED TO BE
ABORTIVE INSOFAR AS REACHING ANY SETTLEMENT BETWEEN THEM. DESPITE THE
FACT THAT IT ENTERED INTO DISCUSSIONS WITH RESPECT TO PROPOSALS
SUBMITTED BY BOTH PARTIES, THE UNION ONCE AGAIN RETREATED TO ITS EARLIER
INSISTENCE THAT THE KMI REVISION BE NEGOTIATED UNDER THE CONTRACT IN
ACCORDANCE WITH ARTICLE XLII THEREOF. FURTHER DISCUSSION OR MEETINGS
CEASED, AND THE KMI PROPOSAL WAS PUT INTO EFFECT.
A. JURISDICTIONAL ISSUE
SECTION 13(A) OF THE ORDER DEALS WITH GRIEVANCE AND ARBITRATION
PROCEDURES AND PROVIDES IN PART AS FOLLOWS:
"AN AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL
PROVIDE A PROCEDURE,
APPLICABLE ONLY TO THE UNIT, FOR THE CONSIDERATION OF GRIEVANCES OVER
THE INTERPRETATION OR
APPLICATION OF THE AGREEMENT. A NEGOTIATED GRIEVANCE PROCEDURE MAY
NOT COVER ANY OTHER
MATTERS . . . AND SHALL BE THE EXCLUSIVE PROCEDURE AVAILABLE TO THE
PARTIES AND THE EMPLOYEES
IN THE UNIT FOR RESOLVING SUCH GRIEVANCES."
RESPONDENT CALLS ATTENTION TO THE FACT THAT THE AGREEMENT HEREIN
CONTAINS A GRIEVANCE PROCEDURE IN ACCORD WITH THE QUOTED SECTION OF THE
ORDER. FURTHER, IT CONTENDS THE DISPUTE WITH THE UNION IS A GRIEVANCE
OVER THE INTERPRETATION OR APPLICATION OF THE CONTRACT. SPECIFICALLY,
RESPONDENT MAINTAINS THIS CASE IS A GRIEVANCE OVER THE INTERPRETATION OR
APPLICATION OF THE "IN CONFLICT" LANGUAGE SET FORTH IN ARTICLE III,
SECTION 7 OF THE CONTRACT. THEREFORE, IT ARGUES THAT THE MATTER SHOULD
BE HANDLED UNDER THE GRIEVANCE PROCEDURES, AND THUS UNDER THE SECTION
13(A) OF THE ORDER THE ASSISTANT SECRETARY HAS NO JURISDICTION.
THE PRIVATE SECTOR HAS DEALT WITH THE QUESTION OF WHETHER AN ISSUE
WAS ONE OF CONTRACT INTERPRETATION. CASES BEFORE THE NATIONAL LABOR
RELATIONS BOARD (HEREIN CALLED THE BOARD) INVOLVING THIS ISSUE LOOK TO
THE LANGUAGE OF THE PARTICULAR CLAUSES IN THE AGREEMENT IN DETERMINING
WHETHER THERE IS REALLY SUCH A DISPUTE. THUS, IN UNITED TELEPHONE CO.
OF THE WEST, 112 NLRB 779, 781 THE EMPLOYER EFFECTED A CHANGE IN
OVERTIME AND THE UNION CLAIMED THIS ACTION VIOLATED A CLAUSE IN THE
CONTRACT REQUIRING THAT "ALL RULES, SCHEDULES, PRIVILEGES AND BENEFITS
HERETOFORE IN EFFECT WHICH ARE NOT SPECIFICALLY MENTIONED OR CHANGED BY
THE PROVISIONS CONTAINED HEREIN, SHALL REMAIN UNCHANGED . . . UNLESS
CHANGED BY MUTUAL CONSENT . . . ." THE BOARD CONCLUDED THE CONTRACT
LANGUAGE WAS NOT SUFFICIENTLY CLEAR TO AVOID A DISPUTE OVER ITS TERMS,
AND FOUND THE DISAGREEMENT WAS ONE OF CONTRACT INTERPRETATION WARRANTING
DISMISSAL OF THE COMPLAINT. IN OTHER CASES WHERE THE PROVISIONS OF THE
AGREEMENT ARE PLAIN AND UNAMBIGUOUS, THE BOARD HAS REJECTED THE ARGUMENT
THAT THE DISPUTE INVOLVED CONTRACT INTERPRETATION. SEE HUTTIG SASH AND
DOOR, INC., 154 NLRB 811, 817. WHERE THE MEANING OF A CLAUSE IN THE
AGREEMENT IS THE SUBJECT OF CONTROVERSY THE BOARD WILL DEFER TO THE
GRIEVANCE PROCEDURE. WROUGHT WASHER MFG. CO., 197 NLRB NO. 14.
WHILE THESE PRINCIPLES ARE NOT CONTROLLING UNDER THE ORDER, THEY ARE
USEFUL AS GUIDELINES IN CASES INVOLVING SIMILAR ISSUES. DESPITE THE
TENDENCY OF THE BOARD TO REFUSE JURISDICTION WHERE A CONTRACTUAL DISPUTE
EXISTS, IT CONTINUES TO PREDICATE THIS REFUSAL ON A FINDING THAT THE
MEANING AND APPLICATION OF CONTRACT LANGUAGE IS THE HEART OF THE
CONTROVERSY. I AM PERSUADED THAT IN THE "CASE AT BAR" THE LANGUAGE IN
THE CONTRACT ADVERTED TO BY RESPONDENT IS NEITHER AMBIGUOUS NOR UNCLEAR.
THE TERM "IN CONFLICT" IN ARTICLE III, SECTION 7 IS NOT COUCHED IN
INDEFINITE OR UNCERTAIN LANGUAGE. IT MAY BE TRUE THAT THE VERY USAGE OF
THE WORDS REQUIRES A RESOLUTION OF WHETHER CHANGES ADOPTED BY THE
EMPLOYER ARE IN CONFLICT WITH THE AGREEMENT. BUT THE ASSISTANT
SECRETARY SHOULD NOT BE DISABLED FROM RESOLVING AN UNFAIR LABOR PRACTICE
ISSUE BECAUSE IT MAY BE NECESSARY TO CONSTRUE A CONTRACT. A CONCLUSION
AS TO WHETHER A PERSONNEL POLICY OR WORKING CONDITION IMPLEMENTED BY
RESPONDENT VIOLATES THE AGREEMENT MAY CALL FOR A CONSTRUCTION OF THE
PROVISIONS THEREOF. NEVERTHELESS, IT DOES NOT FOLLOW THAT CONSTRUING
TERMS OF A CONTRACT MUST BE UNDERTAKEN VIA THE GRIEVANCE PROCEDURE.
IN THE CASE OF VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH
CAROLINE, A/SLMR NO. 87, THE RESPONDENT SIMILARLY MOVED TO DISMISS ON
THE GROUND THAT THE DISPUTE WAS A CONTRACTUAL ONE. BUT THE RESPONDENT
DID NOT CONTEND THE ACTION IT TOOK (SCHEDULING NURSING SERVICE
EMPLOYEES) WAS BASED ON ITS INTERPRETATION OF THE CONTRACT, AND THERE
WAS NO REASONABLE QUESTION AS TO THE MEANING OF THE AGREEMENT IN THAT
REGARD. THE ASSISTANT SECRETARY DENIED THE MOTION TO DISMISS AND
REJECTED THE CONTENTION THAT THE CHANGE INVOLVED A CONTRACTUAL DISPUTE.
IN THE INSTANT MATTER, WE ARE NOT CALLED UPON TO RESOLVE A QUESTION AS
TO THE MEANING OF THE "IN CONFLICT" PHRASE. THE LATTER TERM IS NOT
ITSELF THE SUBJECT OF THE CONTROVERSY. WE ARE CONCERNED WITH WHETHER
THE KMI REVISION IS IN CONFLICT WITH THE AGREEMENT. SUCH CONCERN IS NOT
EQUATABLE WITH CONSIDERATION OF THE CLARITY OR AMBIGUITY OF THE WORDS
"IN CONFLICT." NOR DID RESPONDENT BASE ITS ACTION UPON AN INTERPRETATION
OF THE AGREEMENT. IN MY OPINION, THE DISPUTE HEREIN DOES NOT INVOLVE A
MATTER OF CONTRACT INTERPRETATION BASED ON AMBIGUOUS LANGUAGE, AND I
SHALL RECOMMEND TO THE ASSISTANT SECRETARY THAT RESPONDENT'S MOTION NO.
1 TO DISMISS THE COMPLAINT FOR LACK OF JURISDICTION BE DENIED.
B. RESPONDENT'S OBLIGATION TO CONSULT OR NEGOTIATE WITH THE UNION
WITH THE UNION UNDER THE ORDER
SECTION 19(A)(6) OF THE ORDER PROVIDES THAT AGENCY MANAGEMENT SHALL
NOT REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION AS
REQUIRED BY THE ORDER. SUCH A REFUSAL WILL CONSTITUTE AN UNFAIR LABOR
PRACTICE. IT BECOMES APPARENT, BOTH FROM THE LANGUAGE OF THE ORDER AND
THE STUDY COMMITTEE REPORT AND RECOMMENDATIONS THEREOF, THAT THE
OBLIGATION TO CONFER OR CONSULT DIFFERS FROM THE DUTY TO NEGOTIATE. THE
REPORT AND RECOMMENDATIONS OF AUGUST 1969 SET FORTH NATIONAL
CONSULTATION RIGHTS, AND WHAT THEY SHOULD INCLUDE, BUT EXCLUDE THEREFROM
THE RIGHT TO NEGOTIATE. MOREOVER, SECTION 9(B) OF THE ORDER DEALS WITH
NATIONAL CONSULTATION RIGHTS, AND PROVIDES, IN SUBSTANCE, THAT A LABOR
ORGANIZATION (A) SHALL BE NOTIFIED OF PROPOSED CHANGES IN PERSONNEL
POLICIES, AND THEN GIVEN AN OPPORTUNITY TO COMMENT THEREON; (B) MAY
SUGGEST CHANGES IN AN AGENCY'S PERSONNEL POLICIES AND HAVE ITS VIEWS
CONSIDERED; (C) MAY CONFER WITH OFFICIALS ON PERSONNEL POLICY MATTERS
AND PRESENT ITS VIEWS IN WRITING. SECTIONS 7(D)(3) AND (E) OF THE ORDER
BESPEAK OF CONSULTING AS "DEALING" AND "COMMUNICATING," WHEREAS SECTION
11 REFERS TO THE "NEGOTIATION" OF AGREEMENTS. BOTH THE UNION AND
RESPONDENT AGREE THAT THE TERMS "CONSULT" OR "NEGOTIATE" ARE NOT
SYNONYMOUS. IN TRUTH, THE DISTINCTION DRAWN UNDER THE CONTRACT, AND THE
DEFINITIONS ASSIGNED THEREUNDER TO BOTH TERMS, ARE STRIKINGLY SIMILAR TO
THOSE MADE IN THE ORDER. UNDER ARTICLE IX, SECTION 1, CONSULTATION
INVOLVES AN EXCHANGE OF VIEWS AND RECOMMENDATIONS BETWEEN THE EMPLOYER
AND THE UNION WHEN THE FORMER PLANS SOME SOME ACTION REGARDING A MATTER
WITHIN THE SCOPE OF THE AGREEMENT. NEGOTIATION, UNDER THIS SECTION,
INVOLVES AN EXCHANGE OF PROPOSALS IN WHICH WRITTEN AGREEMENT BETWEEN THE
PARTIES IS THE MAJOR OBJECTIVE. FURTHERMORE, ARTICLE V, SECTION 7
DECLARES THAT THE UNION HAS THE RIGHT TO NEGOTIATE WITH THE EMPLOYER ON
CERTAIN AMENDMENTS WHICH WILL BE PROCESSED FOR APPROVAL IN THE SAME
MANNER AS THE AGREEMENT ITSELF. ACCORDINGLY, THE TERM "NEGOTIATE"
SUGGESTS BARGAINING BETWEEN THE PARTIES WHICH WILL RESULT IN A WRITTEN
AGREEMENT OR MODIFICATION OF AN EXISTING ONE.
THE UNION PREDICATES ITS CONTENTION THAT RESPONDENT WAS OBLIGED TO
NEGOTIATE THE KMI REVISION ON ARTICLE III, SECTION 7 OF THE CONTRACT.
AS EXPRESSED THEREIN, THE EMPLOYER AGREED NOT TO CHANGE OR IMPLEMENT ANY
PERSONNEL POLICIES WITHIN LOCAL DISCRETIONARY AUTHORITY WITHOUT PRIOR
NEGOTIATIONS WITH THE UNION WHEN THEY ARE IN CONFLICT WITH THE
AGREEMENT. THE THRUST OF THE UNION'S AGREEMENT IS TWOFOLD: (1) THAT
THE MEDICAL CLEARANCE REVISION IS IN CONFLICT WITH THE CONTRACT, AND
THUS UNDER ARTICLE III, SECTION 7, THERE IS A CLEAR DUTY TO NEGOTIATE
THE REVISION WITH THE UNION; (2) EVEN IF THE NEW PROPOSAL IS NOT IN
CONFLICT WITH THE AGREEMENT, IT IMPOSES ADDITIONAL RESPONSIBILITIES UPON
THE EMPLOYER PERTAINING TO CONDITIONS OF EMPLOYMENT-- ALL OF WHICH
NECESSITATES FOLLOWING THE PROCEDURES OUTLINED IN ARTICLE XLII, SECTION
4 OF THE AGREEMENT GOVERNING CHANGES AND AMENDMENTS THERETO.
(1) THERE IS LITTLE DOUBT THAT IF THE KMI PROPOSAL CONFLICTS WITH
ARTICLE XVI, SECTION 5 OF THE AGREEMENT, RESPONDENT IS OBLIGED, UNDER
THIS CONTRACT CLAUSE TO NEGOTIATE IT WITH THE UNION. WHILE IT IS TRUE
THAT BOTH THE KMI REVISION AND ARTICLE XVI, SECTION 5 OF THE CONTRACT
BOTH REFER TO SICK LEAVE, EACH IS CONCERNED WITH DIFFERENT ASPECTS
THEREOF. THE CONTRACTUAL PROVISION DECLARES THAT "ABSENCES IN EXCESS OF
THREE (3) WORKING DAYS MUST BE SUPPORTED BY A DOCTOR'S CERTIFICATE." THE
LANGUAGE WHICH FOLLOWS REGARDING INSTANCES WHEN A DOCTOR'S CERTIFICATE
IS NOT NEEDED, AND THE ACCEPTANCE OF A STATEMENT IN LIEU THEREOF, ARE
EQUALLY REFERABLE TO REQUIRING CONFIRMATION OF THE FACT THAT AN EMPLOYEE
HAS BEEN ABSENT DUE TO ILLNESS. ARTICLE XVI, SECTION 5, AS ITS LANGUAGE
STATES, AND AS RESPONDENT'S WITNESSES SO TESTIFIED, IS CONCERNED WITH
SUBMITTING PROOF IN SUPPORT OF SICK LEAVE. IT WAS INTENDED AS A CHECK
ON THE EMPLOYEES WHO MIGHT OTHERWISE ABUSE THIS TYPE OF LEAVE. THUS,
EITHER A DOCTOR'S CERTIFICATE OR, IN CERTAIN INSTANCES, A SIGNED
STATEMENT BY THE EMPLOYER MUST BE SUBMITTED IN ORDER TO EARN SICK LEAVE
WHEN AN EMPLOYEE IS ABSENT IN EXCESS OF THREE DAYS. THE KMI REVISION,
ON THE OTHER HAND, REQUIRES A MEDICAL CLEARANCE BY OHF AFTER AN EMPLOYEE
HAS BEEN ON SICK LEAVE FOR FIVE OR MORE CONSECUTIVE WORKDAYS. HOWEVER,
SUCH CLEARANCE IS NOT DESIGNED TO SUBSTANTIATE THE FACT THAT AN EMPLOYEE
WAS ILL FOR A PARTICULAR PERIOD SO AS TO ENTITLE HIM TO SICK LEAVE. THE
EXAMINATION BY OHF IS FOR THE PURPOSE OF ASSURING KSC THAT AN EMPLOYEE
IS ABLE TO ATTEND TO HIS DUTIES. RECORD TESTIMONY REVEALS THAT KSC WAS
DESIROUS OF KNOWING WHETHER ANY SPECIAL STRESS OR STRAIN ENDURED BY AN
EMPLOYEE COULD AFFECT HIS PERFORMANCE OF A PARTICULAR JOB.
ACCORDINGLY, I AM PERSUADED, AND CONCLUDE, THAT THE KMI REVISION IS
NOT IN CONFLICT WITH ARTICLE XVI, SECTION 5 OF THE AGREEMENT. IN MY
OPINION, THE FORMER COVERS A DIFFERENT PHASE OF SICK LEAVE THAN IS
ALREADY PROVIDED FOR IN THE CONTRACT. REQUIRING A MEDICAL CLEARANCE
IMPOSES A NEW AND DIFFERENT DUTY UPON THE EMPLOYER WHO IS ABSENT ON SICK
LEAVE. IT IS AN ADDED RESPONSIBILITY. ONE CANNOT GAINSAY THAT IT
AFFECTS THE EMPLOYMENT CONDITION OF EMPLOYEES. NEVERTHELESS, THE KMI
REVISION MAKES NO CHANGE IN EXISTING CLAUSES OF THE AGREEMENT, BUT
RATHER INTRODUCES A NEW CONDITION OF EMPLOYMENT. THE ADOPTION OF THE
KMI REVISION AND ARTICLE XVI, SECTION 5 DOES NOT RESULT IN THE MUTUAL
EXCLUSION OF ONE OR THE OTHER. THEY CAN CO-EXIST SIDE BY SIDE.
THEREFORE, I DO NOT BELIEVE RESPONDENT WAS OBLIGED, UNDER ARTICLE III,
SECTION 7 OF THE AGREEMENT, TO NEGOTIATE THE KMI PROPOSAL WITH THE
UNION. THIS PARTICULAR SECTION REQUIRES THAT NO IMPLEMENTATION OF
PERSONNEL POLICIES BE MADE WITHOUT NEGOTIATING WHEN THE POLICIES ARE "IN
CONFLICT" WITH THE AGREEMENT, AND I FIND NO SUCH CONFLICT TO BE PRESENT.
(2) THE UNION ASSERTS THAT ASSUMING ARGUENDO THE KMI REVISION WAS NOT
IN CONFLICT WITH ARTICLE XVI, SECTION 5 OF THE CONTRACT, IT WAS AN
ADOPTION OF A CONDITION OF EMPLOYMENT ABOUT WHICH RESPONDENT MUST
NEGOTIATE. IT IS URGED THAT WHETHER THE KMI BE DEEMED A CHANGE OR
MODIFICATION, MANAGEMENT IS REQUIRED TO NEGOTIATE WHEN IT SEEKS TO
IMPOSE NEW RESPONSIBILITIES ON EMPLOYEES. IN SUPPORT OF THIS
CONTENTION, RESPONDENT CITE SEVERAL CASES IN THE PRIVATE SECTOR BEFORE
THE NATIONAL LABOR RELATIONS BOARD WHICH HOLD THAT AN EMPLOYER MUST
BARGAIN WITH A UNION WHEN IT SEEKS TO MODIFY OR ALTER WORKING
CONDITIONS. THE BOARD HAS REPEATEDLY FOUND A VIOLATION WHEN EMPLOYERS
UNILATERALLY INSTITUTED CHANGES IN TERMS OF EMPLOYMENT. THUS, THE UNION
HEREIN MAINTAINS THE MEDICAL CLEARANCE WAS A NEW OR ALTERED CONDITION OF
EMPLOYMENT, CONCERNING WHICH RESPONDENT WAS REQUIRED TO NEGOTIATE.
FURTHER, THE EMPLOYER WAS OBLIGED TO FOLLOW ARTICLE XLII, SECTION 4 IN
NEGOTIATING ANY CHANGE IN THE AGREEMENT.
IT IS RECOGNIZED THAT AN EMPLOYER HAS AN OBLIGATION, IN MOST
INSTANCES, TO NEGOTIATE CHANGES IN CONDITIONS OF EMPLOYMENT. HOWEVER, I
AM CONSTRAINED TO FIND THAT THE PARTIES HEREIN HAVE SET FORTH IN THE
CONTRACT ITSELF DEFINITIVE OBLIGATIONS OF RESPONDENT REGARDING PERSONNEL
POLICIES OR CONDITIONS AFFECTING EMPLOYMENT. THUS, ARTICLE III, SECTION
1 STATES THAT THE EMPLOYER IS "OBLIGATED TO CONSULT WITH THE UNION
CONCERNING PERSONNEL POLICIES, THE PERSONNEL IMPLICATIONS OF CERTAIN
MANAGEMENT DECISIONS, AND ON MATTERS DIRECTLY AFFECTING WORKING
CONDITIONS . . . ." SUCH CONTRACTUAL LANGUAGE DELIMITS THE DUTY
OTHERWISE IMPOSED UPON RESPONDENT WHEN IT CONTEMPLATES A CHANGE IN
WORKING CONDITIONS OR THE INSTITUTION OF NEW PERSONNEL POLICIES. IT
OBLIGES THE EMPLOYER HEREIN TO CONSULT IN RESPECT TO MATTERS AFFECTING
WORKING CONDITIONS WHICH DO NOT CONSTITUTE CHANGES IN CONFLICT WITH THE
AGREEMENT UNDER ARTICLE III, SECTION 7. TO DECIDE OTHERWISE WOULD BE
TANTAMOUNT TO REWRITING THE CONTRACT. FURTHER, THE LIMITATION IMPOSED
UPON RESPONDENT'S OBLIGATION IS IN NO SENSE REPUGNANT TO THE ORDER OR
ILLEGAL PER SE. /21/ THE UNION HAS, IN THE OPINION OF THE UNDERSIGNED,
WAIVED THE RIGHT TO INSIST UPON NEGOTIATING CHANGES IN CONDITIONS OF
EMPLOYMENT EXCEPT AS SET FORTH IN ARTICLE III, SECTION 7. BY ASSENTING
TO THE CLAUSE IN ARTICLE III, SECTION 1, THE UNION IS RESTRICTED TO
CONSULTATION VIS A VIS NEGOTIATIONS RIGHTS.
THIS ISSUE IS NOT WITHOUT PRECEDENT IN THE FEDERAL SECTOR. IN THE
RECENT CASE OF U.S. ARMY SCHOOL/TRAINING CENTER, FORT GORDON, GEORGIA,
A/SLMR NO. 148, THE RESPONDENT THEREIN UNILATERALLY CHANGED MEAL PERIODS
FROM 30 TO 60 MINUTES. THE CONTRACT BETWEEN RESPONDENT AND THE UNION
PROVIDED THAT "ANY CONTEMPLATED CHANGE IN THE REGULARLY SCHEDULED
WORKDAY OR WORKWEEK SHALL BE IN ACCORDANCE WITH THE APPLICABLE RULES AND
REGULATIONS AND THE LODGE (UNION) SHALL BE CONSULTED PRIOR TO ITS
IMPLEMENTATION." THE UNION ARGUED THAT SINCE THE 30-MINUTE MEAL PERIOD
WAS SPECIFICALLY EXPRESSED IN THE CONTRACT, THE EMPLOYER COULD NOT
CHANGE IT WITHOUT NEGOTIATING SAME WITH THE UNION. THIS WAS REJECTED ON
THE GROUND THAT THE AGREEMENT CALLED FOR CONSULTATION BY RESPONDENT WITH
THE UNION AS TO ANY CONTEMPLATED CHANGE IN THE REGULARLY SCHEDULED
WORKDAY OR WORKWEEK PRIOR TO IMPLEMENTATION. SINCE THE ACTIVITY HAD
CONSULTED WITH THE UNION, THE ASSISTANT SECRETARY FOUND NO VIOLATION OF
THE ORDER AND DISMISSED THE COMPLAINT. IN THE INSTANT CASE THE CONTRACT
LIKEWISE CALLS FOR RESPONDENT TO CONSULT ON MATTERS DIRECTLY AFFECTING
WORKING CONDITIONS. UNLESS THE MEDICAL CLEARANCE REVISION RUNS AFOUL OF
THE SICK LEAVE CLAUSES IN THE CONTRACT-- WHICH WOULD THEN REQUIRE
NEGOTIATING UNDER ARTICLE III, SECTION 7-- RESPONDENT IS MERELY CALLED
UPON TO CONSULT AS TO SAID REVISION.
C. RESPONDENT'S CONSULTATION WITH THE UNION
HAVING CONCLUDED THAT KSC WAS UNDER A DUTY TO CONSULT, RATHER THAN
NEGOTIATE, WITH THE UNION, IT MUST BE DETERMINED WHETHER CONSULTATION
TOOK PLACE BETWEEN THE PARTIES. THE RECORD REFLECTS THAT BETWEEN
JANUARY AND JULY EACH PARTY SENT APPROXIMATELY EIGHT LETTERS TO THE
OTHER CONCERNING THE PROPOSED DMI REVISION. IN JANUARY RESPONDENT
SOUGHT THE UNION'S COMMENTS RE THE PROPOSAL, AND IN MID-JANUARY IT MADE
A MODIFICATION WHICH ELIMINATED THE NECESSITY FOR AN EMPLOYEE TO FURNISH
A STATEMENT FROM HIS OWN PHYSICIAN ATTESTING TO THE FACT THAT THE
EMPLOYEE IS RELEASED FOR RETURN TO DUTY. DURING THIS SAME PERIOD OF
TIME THERE WERE AT LEAST FIVE MEETINGS BETWEEN THE PARTIES. AT THE
MEETING ON FEBRUARY 2, RESPONDENT CONSENTED TO CHANGE THE TIME
REQUIREMENT FROM THREE TO FIVE DAYS BEFORE A MEDICAL CLEARANCE WAS
NECESSARY AFTER SICK LEAVE. FOLLOWING THIS MEETING, BARNHILL WROTE
UNION REPRESENTATIVE GREEN CONFIRMING THIS CHANGE AND ALSO ADDED THE
WORD "CONSECUTIVE" TO THE FIVE-DAY ABSENCE CLAUSE. AT ALL MEETINGS THE
UNION INSISTED THE PROPOSAL CONFLICTED WITH THE AGREEMENT AND MANAGEMENT
SHOULD NEGOTIATE THE MATTER. RESPONDENT INQUIRED AS TO THE MANNER IN
WHICH IT DID CONFLICT, AND THE UNION MAINTAINED THE REVISION IMPOSED NEW
RESPONSIBILITIES UPON AN EMPLOYEE AND ALTERED HIS CONDITIONS OF
EMPLOYMENT.
DURING THEIR DISCUSSIONS, THE UNION HAD DECLARED THAT THE MEDICAL
CLEARANCE WAS, IN FACT, A FITNESS-FOR-DUTY PHYSICAL WHICH IS REGULATED
BY THE CIVIL SERVICE COMMISSION. ON APRIL 30 RESPONDENT WROTE THE UNION
AND, IN AN EFFORT TO OVERCOME THIS OBJECTION, ADDED LANGUAGE TO THE
REVISION WHICH RECITED THAT THE CLEARANCE WAS NOT A FITNESS-FOR-DUTY
PHYSICAL EXAMINATION. DEPARTING FORM ITS REFUSAL TO "BARGAIN" OVER THE
ISSUE" THE UNION ON JUNE 23 SENT BARNHILL ITS OWN PROPOSAL FOR MEDICAL
CLEARANCE WHICH MADE SEVERAL CHANGES IN THE KMI REVISION, INCLUDING A
REQUIREMENT THAT THE EMPLOYEE'S PRIVATE PHYSICIAN MUST CONCUR BEFORE THE
OHF PHYSICIAN COULD DECIDE THAT AN EMPLOYEE ON SICK LEAVE WAS UNABLE TO
PERFORM HIS JOB. WHILE MANAGEMENT WOULD NOT AGREE TO THIS, IT DID
ADVANCE SEVERAL OTHER SUGGESTIONS.
IT BECOMES OBVIOUS THAT THE FOREGOING CORRESPONDENCE, MEETINGS, AND
PROPOSALS, CONSTITUTED CONSULTATION OF A CONTINUOUS NATURE. NOT ONLY
DID KSC SEEK THE UNION'S SUGGESTIONS AND IDEAS, IT ALSO DISCUSSED THE
REVISION AND ITS EFFECT UPON THE EMPLOYEES. RESPONDENT MADE SEVERAL
CHANGES TO MEET THE UNION'S CONCERNS, AND DEVOTED TIME TO A
CONSIDERATION OF THE UNION'S SUGGESTIONS. RESPONDENT CONFERRED WITH THE
UNION DURING A SIX-MONTH PERIOD, EXCHANGED VIEWS, AND DELIBERATED ON THE
KMI REVISION. THE UNION WAS AFFORDED CONSIDERABLE OPPORTUNITY TO, AND
DID, PRESENT ITS VERSION OF THE MATTER. MOREOVER, IT MADE
COUNTER-PROPOSALS CONCERNING THE REVISION. WHILE THE EFFORTS PROVED
FRUITLESS, I AM CONVINCED THAT RESPONDENT CONSULTED CONSULTED
CONTINUOUSLY WITH THE UNION BETWEEN JANUARY AND JUNE. THE BARGAINING
WHICH OCCURRED MORE THAN SATISFIED, IN MY OPINION, THE OBLIGATION TO
CONSULT. IN TRUTH, ALTHOUGH THERE WAS NO NEGOTIATION LEADING TO A
WRITTEN AGREEMENT ON THE SUBJECT, RESPONDENT IN FACT "NEGOTIATED" THE
MATTER WITH THE UNION. ACCORDINGLY, I CONCLUDE THAT RESPONDENT
SATISFIED ITS OBLIGATION TO CONSULT AND DID NOT VIOLATE SECTION 19(A)(6)
OF THE ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT HEREIN AGAINST RESPONDENT BE
DISMISSED.
DATED AT WASHINGTON, D.C.
JUNE 30, 1972
PAGE . . . LINE . . . APPEARS AS . . . CHANGE TO
18 . . . 5. . . HOWEVER, IF THIS VIEW . . . HOWEVER, IF THIS VIEW
. . . . . . IS DETERMINED TO BE CORRECT . . . IS DETERMINED NOT TO BE
CORRECT
33 . . . 24 . . .KFC . . . KFC
42 . . . 10 . . . OUT . . . OUGHT
46 . . . 12 . . . ARTICLE 5, SECTION 16 . . . ARTICLE 16, SECTION 5
59 . . . 16 . . .ARTICLE 5 . . . ARTICLE 16, SECTION 5
75 . . . 3 . . . THE EXAMINER . . . AN EXAMPLE
130 . . . 9 . . . DELETE THE WORK "NOT"
130 . . . 16 . . .FMP . . . FMP
/1/ RESPONDENT DID, IN FACT, IMPLEMENT THIS REVISION TO ITS MEDICAL
AND ENVIRONMENTAL HEALTH PROGRAM ON NOVEMBER 1, 1971, AND PUBLISHED SAME
IN ITS BULLETIN ON OCTOBER 29 AND NOVEMBER 5, 1971. COMPLAINANT
CONTENDS THIS IMPLEMENTATION IS LIKEWISE VIOLATIVE OF SECTION 19(A)(6)
OF THE ORDER.
/2/ BY MOTIONS DATED MAY 10 AND 15, 1972, THE COMPLAINANT AND
RESPONDENT, RESPECTIVELY, MOVED TO CORRECT THE TRANSCRIPT IN CERTAIN
RESPECTS. THE MOTIONS ARE GRANTED AND THESE CORRECTIONS ARE ATTACHED
HERETO AS APPENDIX A.
/3/ AFGE EXHIBIT 1.
/4/ ALL DATES HEREINAFTER MENTIONED ARE IN 1971 UNLESS OTHERWISE
INDICATED.
/5/ AFGE EXHIBITS 39B AND 39C.
/6/ THE OTHER SECTIONS OF THIS ARTICLE SET FORTH A COMPLETE FORMAL
GRIEVANCE PROCESS WITH STEPS TO BE FOLLOWED IN FILING A GRIEVANCE.
/7/ AFGE EXHIBIT 2.
/8/ AFGE EXHIBIT 3.
/9/ AFGE EXHIBIT 4.
/10/ AFGE EXHIBIT 5.
/11/ AFGE EXHIBITS 6 AND 7.
/12/ AFGE EXHIBIT 8.
/13/ AFGE EXHIBIT 9.
/14/ AFGE EXHIBIT 10.
/15/ AFGE EXHIBIT 11.
/16/ AFGE EXHIBIT 12.
/17/ AFGE EXHIBITS 14 AND 15.
/18/ AFGE EXHIBIT 18.
/19/ AFGE EXHIBIT 25.
/20/ AFGE EXHIBIT 27.
/21/ THE UNION URGES THAT THE KMI REVISION IS, IN REALITY, A FITNESS
FOR DUTY EXAMINATION AND CONTRARY TO CHAPTER 339 OF FEDERAL PERSONNEL
MANUAL. APART FROM THE FACT THAT THE REVISION PROVIDES IT IS NOT SUCH
AN EXAMINATION, I DO NOT FEEL IT NECESSARY TO RESOLVE THIS CONTENTION
SINCE ANY DETERMINATION DOES NOT BEAR ON THE UNFAIR LABOR PRACTICE
ISSUE.
2 A/SLMR 222; P. 564; CASE NO. 22-3483(RO); NOVEMBER 30, 1972.
NATIONAL OCEAN SURVEY,
PACIFIC MARINE CENTER AND
ATLANTIC MARINE CENTER
A/SLMR NO. 222
THE PETITIONER, NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, SOUGHT
AN ELECTION IN A UNIT COMPOSED OF ALL OF THE ACTIVITY'S CHIEF
QUARTERMASTERS. THE ACTIVITY AGREED ON THE SCOPE OF THE CLAIMED UNIT
BUT CONTENDED THAT THE PETITION SHOULD BE DISMISSED BECAUSE THE UNIT
SOUGHT IS, IN EFFECT, A UNIT OF SUPERVISORS WHICH THE PETITIONER IS
INELIGIBLE TO REPRESENT UNDER THE EXECUTIVE ORDER. WHILE THE PETITIONER
DID NOT CONCEDE THAT THE CHIEF QUARTERMASTERS ARE SUPERVISORS, IT
CONTENDED THAT EVEN IF THEY ARE SUPERVISORS, THEY ARE ELIGIBLE FOR
REPRESENTATION BY PETITIONER BASED ON SECTION 24(2) OF THE EXECUTIVE
ORDER, WHICH PERMITS THE ACCORDING OF INITIAL RECOGNITION FOR UNITS OF
SUPERVISORS TO LABOR ORGANIZATIONS WHICH HISTORICALLY OR TRADITIONALLY
REPRESENT SUCH UNITS OF SUPERVISORS IN PRIVATE INDUSTRY AND WHICH HELD
EXCLUSIVE RECOGNITION FOR UNITS OF SUCH SUPERVISORS IN ANY AGENCY ON THE
DATE OF THE EXECUTIVE ORDER, JANUARY 1, 1970.
THE ASSISTANT SECRETARY DETERMINED THAT THE CHIEF QUARTERMASTERS ARE
SUPERVISORS WITHIN THE MEANING OF THE ORDER BECAUSE THEY ASSIGNED AND
DIRECTED THE WORK OF LOWER GRADE QUARTERMASTERS AND HAD THE AUTHORITY TO
RECOMMEND EFFECTIVELY SUCH PERSONNEL ACTIONS AS HIRING, FIRING, AND
DISCIPLINING OF LOWER GRADE QUARTERMASTERS. THE ASSISTANT SECRETARY
FURTHER DETERMINED THAT INASMUCH AS THE CHIEF QUARTERMASTERS WERE
SUPERVISORS AND INASMUCH AS THE PETITIONER DID NOT HOLD EXCLUSIVE
RECOGNITION FOR A UNIT OF CHIEF QUARTERMASTERS OR SUPERVISORS PERFORMING
THE SAME DUTIES AS THE CHIEF QUARTERMASTERS IN ANY AGENCY ON THE DATE OF
THE EXECUTIVE ORDER, THE PETITIONER WAS INELIGIBLE UNDER SECTION 24(2)
OF THE EXECUTIVE ORDER TO REPRESENT EXCLUSIVELY A UNIT OF CHIEF
QUARTERMASTERS. ACCORDINGLY, THE ASSISTANT SECRETARY DISMISSED THE
PETITION.
NATIONAL OCEAN SURVEY,
PACIFIC MARINE CENTER AND
ATLANTIC MARINE CENTER
AND
NATIONAL MARITIME UNION OF AMERICA,
AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER DONALD K. CLARK.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PETITIONER'S
BRIEF, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL MARITIME UNION OF AMERICA, AFL-CIO,
SEEKS AN ELECTION IN A UNIT OF ALL CHIEF QUARTERMASTERS ABOARD VESSELS
OPERATED BY THE ACTIVITY AT ITS PACIFIC AND ATLANTIC MARINE CENTERS,
EXCLUDING ALL OTHER EMPLOYEES, MANAGERS, PROFESSIONAL EMPLOYEES, PERSONS
PERFORMING PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
GUARDS AND SUPERVISORS AS DEFINED IN THE ORDER. THE ACTIVITY AGREES
WITH THE SCOPE OF THE UNIT SOUGHT BUT CONTENDS THAT THE PETITION SHOULD
BE DISMISSED BECAUSE THE CLAIMED UNIT IS COMPOSED OF SUPERVISORS AND,
THEREFORE, IS PROHIBITED BY THE EXECUTIVE ORDER. WHILE THE PETITIONER
DOES NOT CONCEDE THAT THE EMPLOYEES IT SEEKS TO REPRESENT IN THIS MATTER
ARE SUPERVISORS IT CONTENDS THAT EVEN IF THEY ARE SUPERVISORS, THEY
WOULD BE ELIGIBLE FOR EXCLUSIVE REPRESENTATION UNDER THE PROVISIONS OF
SECTION 24(2) OF THE ORDER. /1/
THE ACTIVITY IS A COMPONENT OF THE NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION (NOAA) WHICH IS AN OPERATING COMPONENT OF THE DEPARTMENT
OF COMMERCE. IT IS ENGAGED PRIMARILY IN RESEARCHING DOMESTIC AND
FOREIGN DEEP SEA WATERS AND, IN THIS CONNECTION, OPERATES A TOTAL OF 11
DEEP SEA VESSELS, EACH OF WHICH EMPLOYS ONE CHIEF QUARTERMASTER. /2/
THE ACTIVITY'S OPERATIONS ARE DIVIDED INTO SEVERAL PRINCIPAL OPERATING
UNITS, INCLUDING THE ATLANTIC MARINE CENTER, WHICH IS HEADQUARTERED AT
NORFOLK, VIRGINIA AND THE PACIFIC MARINE CENTER, HEADQUARTERED AT
SEATTLE, WASHINGTON, OUT OF WHICH THE DEEP SEA VESSELS OPERATE.
THE MARINE CENTERS REPORT TO THE ACTIVITY'S DIRECTOR AND HIS
ADMINISTRATIVE STAFF WHO, IN TURN, REPORT TO THE ADMINISTRATOR OF NOAA.
THE ATLANTIC MARINE CENTER HAS ITS OWN PERSONNEL OFFICE WHICH IS
RESPONSIBLE FOR ALL PERSONNEL SERVICES WITHIN ITS JURISDICTION. ON THE
OTHER HAND, PERSONNEL SERVICES FOR THE PACIFIC CENTER ARE CONDUCTED BY
THE NORTHWEST ADMINISTRATIVE SERVICES OFFICES WHICH REPORT DIRECTLY TO
NOAA'S ASSISTANT ADMINISTRATOR FOR ADMINISTRATION WHO HAS OVERALL
RESPONSIBILITY FOR THE ADMINISTRATION AND PERSONNEL SERVICES OF THE
ACTIVITY AS WELL AS OTHER COMPONENTS OF NOAA. THE RECORD REVEALS THAT
PERSONNEL PROCEDURES AND POLICIES APPLICABLE TO QUARTERMASTERS ARE
UNIFORM FOR BOTH OF THE MARINE CENTERS.
THE CREWS ON EACH OF THE 11 VESSELS INVOLVED HEREIN INCLUDE A
COMMANDING OFFICER, AN EXECUTIVE OFFICER, AND A NAVIGATION AND
OPERATIONS OFFICER WHO ARE COMMISSIONED OFFICERS AND WHO HAVE OVERALL
RESPONSIBILITY FOR THE OPERATION OF THEIR RESPECTIVE VESSELS. THE CREWS
ON THE SHIPS ARE DIVIDED INTO EIGHT DEPARTMENTS, INCLUDING A
QUARTERMASTER'S DEPARTMENT, AND EACH IS SUPERVISED BY A SEPARATE
DEPARTMENT HEAD. THE DEPARTMENT HEADS, DESIGNATED AS "WAGE MARINES,"
REPORT TO THE EXECUTIVE OFFICER AND THE NAVIGATION AND OPERATIONS
OFFICER FOR TECHNICAL DIRECTION AND SUPERVISION. EACH OF THE
QUARTERMASTER'S DEPARTMENTS INVOLVED HEREIN EMPLOYS FROM TWO TO FOUR
QUARTERMASTERS AND A CHIEF QUARTERMASTER.
THE DUTIES OF A CHIEF QUARTERMASTER CONSIST PRIMARILY OF DIRECTING
THE LOWER GRADE QUARTERMASTERS IN THE PERFORMANCE OF THEIR DUTIES. SUCH
DUTIES INCLUDE MAINTAINING AND CLEANING THE BRIDGE, PILOTHOUSE AND THE
SURROUNDING AREAS; ACTING AS HELMSMEN; ASSISTING IN THE PREPARATION OF
NAVIGATIONAL CHARTS; AND STANDING LOOK-OUT WATCHES. IN THIS
CONNECTION, A CHIEF QUARTERMASTER PREPARES DUTY ROSTERS AND PERFORMANCE
REPORTS FOR THE LOWER GRADE QUARTERMASTERS. ALSO, HE ASSISTS THE
OFFICER OF THE DECK AND NAVIGATORS, ACTS AS HELMSMEN IN CONSTRICTED
WATERS OR IN THE ABSENCE OF QUARTERMASTERS, KEEPS NAVIGATIONAL CHARTS
AND OTHER NAVIGATIONAL AIDS ON A CURRENT BASIS, AND MAINTAINS THE
VESSEL'S NAVIGATION EQUIPMENT. IN ADDITION, THE CHIEF QUARTERMASTER HAS
AUTHORITY TO RECOMMEND EFFECTIVELY HIRING, FIRING AND THE DISCIPLINING
OF LOWER GRADE QUARTERMASTERS, HE EVALUATES THE QUARTERMASTERS FOR
PROMOTION, AND SERVES AS THE FIRST STEP IN THE ACTIVITY'S GRIEVANCE
PROCEDURE FOR THE QUARTERMASTER'S DEPARTMENT. FINALLY, THE CHIEF
QUARTERMASTER ATTENDS SUPERVISORY MEETINGS AND SHARES THE SAME LIVING
QUARTERS AND DINING FACILITIES AS OTHER SUPERVISORY PERSONNEL ON THE
VESSELS, WHICH FACILITIES DIFFER FROM THOSE AVAILABLE TO NONSUPERVISORS.
IN THESE CIRCUMSTANCES AND NOTING PARTICULARLY THE FACT THAT THE CHIEF
QUARTERMASTERS HAVE THE AUTHORITY TO RECOMMEND EFFECTIVELY HIRING,
FIRING AND THE DISCIPLINING OF LOWER GRADE QUARTERMASTERS, AS WELL AS
THE AUTHORITY TO DIRECT EFFECTIVELY THE WORK OF SUCH EMPLOYEES, I FIND
THAT THEY ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
EXECUTIVE ORDER.
AS STATED ABOVE, THE PETITIONER CONTENDS THAT EVEN IF THE CHIEF
QUARTERMASTERS ARE FOUND TO BE SUPERVISORS, THEY WOULD BE ELIGIBLE FOR
EXCLUSIVE REPRESENTATION UNDER THE SAVINGS CLAUSES CONTAINED IN SECTION
24(2) OF THE EXECUTIVE ORDER.
IN THIS REGARD, WHILE THE PETITIONER CONTENDS THAT CONSISTENT WITH
SECTION 24(2) IT IS A LABOR ORGANIZATION WHICH HAS HISTORICALLY OR
TRADITIONALLY REPRESENTED CHIEF QUARTERMASTERS IN PRIVATE INDUSTRY, IT
CONCEDES THAT IT DID NOT REPRESENT A UNIT OF CHIEF QUARTERMASTERS IN ANY
AGENCY ON JANUARY 1, 1970, AS REQUIRED BY SECTION 24(2). NEVERTHELESS,
THE PETITIONER CONTENDS THAT IT MEETS THE LATTER REQUIREMENT BASED ON
THE FACT THAT ON JANUARY 1, 1970, ANOTHER TRADITIONAL MARITIME LABOR
ORGANIZATION-- THE MASTERS, MATES AND PILOTS-- REPRESENTED A UNIT OF
LICENSED DECK OFFICERS IN THE FEDERAL SECTOR. IT ASSERTS IN THIS REGARD
THAT SUCH EMPLOYEES ARE PROPER COUNTERPARTS OF THE CHIEF QUARTERMASTERS
BECAUSE THEY PERFORM THE SAME DUTIES AS THE CHIEF QUARTERMASTERS.
THE EVIDENCE DISCLOSES THAT THE CHIEF QUARTERMASTERS IN ISSUE ARE THE
ONLY EMPLOYEES EMPLOYED IN THE FEDERAL SECTOR WHO ARE DESIGNATED AS
CHIEF QUARTERMASTERS. /3/ IT FURTHER APPEARS THAT THE FUNCTIONS
PERFORMED BY CHIEF QUARTERMASTERS ARE NECESSARY TO THE OPERATION OF ANY
DEEP SEA VESSEL AND THAT SUCH FUNCTIONS ARE, IN FACT, PERFORMED ON OTHER
DEEP SEA VESSELS IN BOTH THE PRIVATE AND PUBLIC SECTORS BY EMPLOYEES
CLASSIFIED AS LICENSED DECK OFFICERS. /4/
THE EVIDENCE ESTABLISHES THAT THE PETITIONER SERVED AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF THE CHIEF QUARTERMASTERS ABOARD THE USS
UNITED STATES DURING THE TIME THAT VESSEL WAS IN OPERATION. IT APPEARS,
THEREFORE, THAT THE PETITIONER IS A LABOR ORGANIZATION, WHICH HAS
HISTORICALLY OR TRADITIONALLY REPRESENTED CHIEF QUARTERMASTERS IN
PRIVATE INDUSTRY WITHIN THE MEANING OF SECTION 24(2) OF THE ORDER.
HOWEVER, THE EVIDENCE ESTABLISHES ALSO THAT THE PETITIONER DID NOT HOLD
EXCLUSIVE RECOGNITION FOR A UNIT OF CHIEF QUARTERMASTERS OR LICENSED
DECK OFFICERS ON JANUARY 1, 1970, THE DATE OF THE EXECUTIVE ORDER, AS
NOTED ABOVE, THE PETITIONER ASSERTS THAT THE PROVISION IN SECTION
24(2)-- WHICH REQUIRES THE LABOR ORGANIZATIONS SEEKING TO REPRESENT
SUPERVISORS MUST HAVE HELD EXCLUSIVE RECOGNITION FOR UNITS OF SUCH
SUPERVISORS IN THE FEDERAL SECTOR ON THE DATE OF THE ORDER-- IS
SATISFIED BY THE FACT THAT ANOTHER MARITIME LABOR ORGANIZATION, WHICH
TRADITIONALLY OR HISTORICALLY REPRESENTED SUCH SUPERVISORS ON THE DATE
OF THE ORDER. THUS, THE PETITIONER ARGUES THAT IT IS ELIGIBLE TO
REPRESENT THE CHIEF QUARTERMASTERS HEREIN BECAUSE IT CAN SHOW THAT THE
MASTERS, MATES AND PILOTS UNION EXCLUSIVELY REPRESENTED A UNIT OF SUCH
EMPLOYEES IN THE FEDERAL SECTOR ON THE DATE OF THE ORDER. I DO NOT
AGREE. IN MY VIEW, SECTION 24(2) REQUIRES A LABOR ORGANIZATION WHICH
SEEKS A UNIT OF MANAGEMENT OFFICIALS OR SUPERVISORS TO BE ONE WHICH (1)
HAS HISTORICALLY AND TRADITIONALLY REPRESENTED SUCH MANAGEMENT OFFICIALS
OR SUPERVISORS IN PRIVATE INDUSTRY, AND (2) REPRESENTED EXCLUSIVELY
UNITS OF SUCH OFFICIALS OR SUPERVISORS IN THE FEDERAL SECTOR ON THE DATE
OF THE EXECUTIVE ORDER. AS THE PETITIONER CLEARLY DOES NOT MEET THE
SECOND REQUIREMENT OF SECTION 24(2), I FIND THAT IT IS NOT ELIGIBLE TO
REPRESENT THE UNIT OF CHIEF QUARTERMASTERS SOUGHT IN THE INSTANT CASE.
ACCORDINGLY, I SHALL DISMISS THE PETITION HEREIN.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 22-3483(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 30, 1972
/1/ SECTION 24 OF THE ORDER PROVIDES, IN PART: "THIS ORDER DOES NOT
PRECLUDE-- . . . (2) THE RENEWAL, CONTINUATION, OR INITIAL ACCORDING OF
RECOGNITION FOR UNITS OF MANAGEMENT OFFICIALS OR SUPERVISORS REPRESENTED
BY LABOR ORGANIZATIONS WHICH HISTORICALLY OR TRADITIONALLY REPRESENT THE
MANAGEMENT OFFICIALS OR SUPERVISORS IN PRIVATE INDUSTRY AND WHICH HOLD
EXCLUSIVE RECOGNITION FOR UNITS OF SUCH OFFICIALS OR SUPERVISORS IN ANY
AGENCY ON THE DATE OF THIS ORDER."
/2/ THE NATIONAL MARINE FISHERIES SERVICE, WHICH IS ALSO A COMPONENT
OF NOAA, OPERATES ADDITIONAL VESSELS BUT SUCH VESSELS DO NOT EMPLOY
CHIEF QUARTERMASTERS.
/3/ IT APPEARS THAT ONLY ONE VESSEL-- THE USS UNITED STATES-- IN THE
PRIVATE SECTOR CARRIES THE CLASSIFICATION OF CHIEF QUARTERMASTER AND
THAT VESSEL IS NOT IN OPERATION AT THE PRESENT TIME.
/4/ THE LICENSED DECK OFFICERS ARE ALSO REFERRED TO AS MATES.
2 A/SLMR 221; P. 557; CASE NO. 64-1803(25); NOVEMBER 30, 1972.
926TH TACTICAL AIRLIFT GROUP,
U.S. AIR FORCE RESERVE,
NAVAL AIR STATION,
BELLE CHASSE, LOUISIANA
A/SLMR NO. 221
THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 513,
INDEPENDENT, (NFFE), SOUGHT AN ELECTION IN A UNIT OF ALL NONPROFESSIONAL
EMPLOYEES OF THE 926TH TACTICAL AIRLIFT GROUP, UNITED STATES AIR FORCE
RESERVE, LOCATED AT THE NAVAL AIR STATION, BELLE CHASSE, LOUISIANA.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT WAS APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN REACHING THIS
DETERMINATION, HE NOTED THAT THE ACTIVITY IS THE ONLY AIR FORCE TENANT
LOCATED ON THE NAVAL AIR STATION AT BELLE CHASSE, OPERATES INDEPENDENTLY
OF OTHER TENANTS ON THE HOST NAVAL BASE, IS GEOGRAPHICALLY SEPARATED
FROM OTHER AIR FORCE RESERVE UNITS, AND IS ENGAGED IN AN OPERATION
REQUIRING FUNCTIONAL INTEGRATION OF ITS COMPONENT PARTS. MOREOVER, HE
FOUND THE EMPLOYEES OF THE ACTIVITY WORK IN CLOSE PHYSICAL PROXIMITY TO
EACH OTHER, ENJOY SIMILAR WORKING CONDITIONS, ARE SUBJECT TO THE SAME
OVERALL SUPERVISION, ARE ALL SERVED BY THE SAME CIVILIAN PERSONNEL
OFFICE, AND ARE IN THE SAME AREA OF CONSIDERATION FOR PURPOSES OF
REDUCTION IN FORCE.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
EMPLOYEES SOUGHT BY THE NFFE POSSESSED A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AND THAT SUCH A UNIT WOULD PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
WITH REGARD TO 14 DISPUTED JOB CLASSIFICATIONS, THE ASSISTANT
SECRETARY FOUND: (1) THE AIRCRAFT LOADMASTER (INSTRUCTOR), GS-9, WHO
SUPERVISED ONLY ACTIVE-DUTY RESERVISTS, TO BE A SUPERVISOR; (2) THE
PUBLIC INFORMATION OFFICER TO BE A MANAGEMENT OFFICIAL; (3) THE
AIRCRAFT MAINTENANCE ANALYSIS TECHNICIAN, GS-9, TO BE NEITHER A
MANAGEMENT OFFICIAL NOR A SUPERVISOR; AND (4) THE AIRCRAFT LOADMASTER
(INSTRUCTOR), GS-8, THE WAREHOUSEMAN LEADER, WL-6, AND THE "SHOP CHIEFS"
(8 IN NUMBER) NOT TO BE SUPERVISORS WITHIN THE MEANING OF THE ORDER.
WITH RESPECT TO THE POSITION OF FLIGHT ENGINEER (INSTRUCTOR), GS-9, THE
ASSISTANT SECRETARY, WHILE DETERMINING THAT THE EMPLOYEES IN THIS
POSITION DO NOT PERFORM THE FUNCTIONS OF MANAGEMENT OFFICIALS, FOUND
THERE WAS INSUFFICIENT INFORMATION TO DETERMINE WHETHER THEY WERE
SUPERVISORS.
THE ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE UNIT FOUND
APPROPRIATE.
926TH TACTICAL AIRLIFT GROUP,
U.S. AIR FORCE RESERVE,
NAVAL AIR STATION,
BELLE CHASSE, LOUISIANA
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 513, INDEPENDENT
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LOUIS P. EAVES.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
513, INDEPENDENT, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL
EMPLOYEES, INCLUDING ALL "TEMPORARY" EMPLOYEES WHOSE APPOINTMENTS EXCEED
90 DAYS, OF THE 926TH TACTICAL AIRLIFT GROUP, UNITED STATES AIR FORCE
RESERVE, LOCATED AT THE NAVAL AIR STATION, BELLE CHASSE, LOUISIANA,
EXCLUDING ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT
OFFICIALS, CONFIDENTIAL EMPLOYEES, CASUAL EMPLOYEES, AND SUPERVISORS AND
GUARDS AS DEFINED IN THE EXECUTIVE ORDER.
WHILE THE PARTIES HEREIN AGREED ON THE APPROPRIATENESS OF THE
PETITIONED FOR UNIT, THEY DISAGREED AS TO THE UNIT ELIGIBILITY STATUS OF
SOME 14 EMPLOYEE JOB CLASSIFICATIONS. IN THIS REGARD, THE NFFE
MAINTAINED THAT THE QUESTIONED CLASSIFICATIONS WERE ELIGIBLE FOR UNIT
INCLUSION, WHILE THE ACTIVITY CONTENDED THAT THE EMPLOYEES INVOLVED
PERFORMED FUNCTIONS OF A SUPERVISORY OR MANAGERIAL NATURE AND, AS SUCH,
SHOULD BE EXCLUDED FROM THE PROPOSED UNIT.
THE 926TH TACTICAL AIRLIFT GROUP, LOCATED AT BELLE CHASSE, LOUISIANA,
IS PART OF A CHAIN OF COMMAND WHICH RUNS THROUGH THE 446TH TACTICAL
AIRLIFT WING, ELLINGTON AIR FORCE BASE, TEXAS; TO THE CENTRAL AIR FORCE
RESERVE REGION, ALSO AT ELLINGTON AIR FORCE BASE; AND, FINALLY TO THE
AIR FORCE RESERVE HEADQUARTERS, ROBINS AIR FORCE BASE, GEORGIA. AS A
COMPONENT OF THE UNITED STATES AIR FORCE RESERVE, THE ACTIVITY'S
PARTICULAR MISSION IS TO EFFECTUATE TACTICAL AIRLIFTS, WHICH FUNCTION
INCLUDES: (1) DELIVERY OF TACTICAL AND AIRBORNE UNITS, PERSONNEL,
SUPPLIES, AND EQUIPMENT; (2) PREPARATION OF UNPREPARED LANDING AREAS BY
AIR DROPS OR AIR LANDINGS; AND (3) PROVISION OF TACTICAL FORCES UNTIL
THEY ARE WITHDRAWN OR OTHERWISE SUPPLIED. ADDITIONALLY, THE ACTIVITY
HAS A SUBSTANTIAL RESERVE TRAINING COMMITMENT WHICH RESULTS IN THE
REGULAR INFLUX, AT SCHEDULED TIMES, OF ACTIVE-DUTY RESERVISTS FOR
TRAINING PURPOSES AND FOR THE FULFILLMENT OF RESERVE OBLIGATIONS.
THE ACTIVITY IS THE SOLE AIR FORCE TENANT /1/ AT THE HOST NAVAL AIR
STATION LOCATED AT BELLE CHASSE, LOUISIANA. IT OPERATES AS A
FUNCTIONALLY INDEPENDENT ENTITY AND IS THE ONLY AIR FORCE INSTALLATION
WITHIN A RADIUS OF 50 MILES. OVERALL RESPONSIBILITY FOR THE ACTIVITY'S
OPERATIONS LIES WITH A COMMANDER, UNDER WHOSE DIRECTION ARE
APPROXIMATELY 210 EMPLOYEES. THE CIVILIAN COMPLEMENT IS COMPRISED
PRIMARILY OF AIR RESERVE TECHNICIANS (ART'S), WITH ABOUT 90 CIVILIAN
NON-RESERVISTS OCCUPYING THE REMAINING POSITIONS. /2/ THE EMPLOYEES OF
THE ACTIVITY ARE PHYSICALLY LOCATED IN THREE BUILDINGS WHICH ARE IN
CLOSE PROXIMITY TO EACH OTHER, AND THEY FUNCTION PRIMARILY IN FOUR MAJOR
ORGANIZATIONAL GROUPINGS: ADMINISTRATION; AIRCRAFT MAINTENANCE;
OPERATIONS AND TRAINING; AND SUPPLY. WHILE EACH GROUPING IS COMPOSED
OF EMPLOYEES WITH SPECIALIZED SKILLS, TRAINING AND EXPERIENCE, THE
RECORD REVEALS THAT THE SUCCESSFUL COMPLETION OF THE ACTIVITY'S OVERALL
MISSION REQUIRES MUTUAL DEPENDENCE AMONG THESE SPECIALIZED PARTS FOR,
AMONG OTHER THINGS, ACCURATE INFORMATION AND RELIABLE PRODUCTION
PERFORMANCE.
WITHIN EACH ORGANIZATIONAL GROUPING, EMPLOYEES WORK A REGULAR 40-HOUR
WEEK PERFORMING RELATED JOB FUNCTIONS IN WORK LOCATIONS (SHOPS) OR
OFFICES ALLOCATED FOR THEIR USE. EACH GROUPING POSSESSES A SEPARATE
LINE OF SUPERVISION WITH THE DEGREE OF SUPERVISION VARYING IN ACCORDANCE
WITH EMPLOYEE POSITIONS, GRADES AND EXPERIENCE. THE EVIDENCE
ESTABLISHES THAT EXCHANGE OF PERSONNEL BETWEEN THE ACTIVITY AND OTHER
AIR FORCE RESERVE UNITS AT OTHER LOCATIONS IN MINIMAL AND THAT CONTACT
WITH OTHER AIR FORCE RESERVE UNITS IS INFREQUENT.
ALTHOUGH, AS NOTED ABOVE, THE ACTIVITY IS LOCATED AT THE NAVAL AIR
STATION AT BELLE CHASSE, THE RECORD REVEALS THAT ITS PAYROLL OFFICE IS
SITUATED AT ROBINS AIR FORCE BASE IN GEORGIA AND ITS PERSONNEL OFFICE IS
ONE OF SEVERAL BRANCHES OF THE CENTRAL CIVILIAN PERSONNEL OFFICE (CCPO),
LOCATED AT ELLINGTON AIR FORCE BASE, TEXAS. EXCEPT FOR RECORDS OF
PROPOSED PERSONNEL ACTIONS, ALL OFFICIAL PERSONNEL RECORDS RELATING TO
THE ACTIVITY'S EMPLOYEES ARE MAINTAINED AT THE CCPO AT ELLINGTON AIR
FORCE BASE, AND MOST PERSONNEL ACTIONS TAKEN BY THE ACTIVITY ARE SENT TO
THAT OFFICE FOR PROCESSING. WHILE THE ACTIVITY RELIES ON THE CCPO FOR
OVERALL PERSONNEL SUPPORT, IT MAINTAINS ALSO ITS OWN ACTIVE PERSONNEL
OFFICE, WHEREIN SPECIFIC POLICIES APPLYING TO THE 926TH TACTICAL AIRLIFT
GROUP ARE FORMULATED. BOTH THE ACTIVITY'S ART'S (IN THEIR CIVILIAN
CAPACITY) AND ITS REGULAR CIVILIAN EMPLOYEES ARE SERVICED BY THE
ACTIVITY'S PERSONNEL OFFICE. WHILE THE REGULAR CIVILIAN EMPLOYEES ARE
COVERED BY THE USUAL CIVIL SERVICE PROCEDURES REGULATING HIRING, JOB
CLASSIFICATIONS, PAY, PROMOTION, DISCIPLINE, SICK AND ANNUAL LEAVE, AND
RETIREMENT, THE ART'S ARE SUBJECT TO TWO CLASSIFICATION POLICIES. THUS,
THE GRADES ALLOCATED TO ART POSITIONS ARE DETERMINED BY THE AIR FORCE
RESERVE HEADQUARTERS, WHICH PROVIDES IDENTICAL STANDARDIZED POSITION
DESCRIPTIONS FOR ALL RESERVE UNITS UTILIZING SUCH POSITIONS, AND WHICH
REMAIN THE SAME REGARDLESS OF LOCATION. FURTHER, BECAUSE THE ART'S ARE
ALSO REGULAR CIVILIAN EMPLOYEES, THEY MUST MEET THE ADDITIONAL BASIC
POSITION REQUIREMENTS AS ASSIGNED BY THE CIVIL SERVICE COMMISSION. TO
AVOID POSSIBLE CONFLICT BETWEEN THE DUAL RESPONSIBILITIES OF THE ART'S,
THE RECORD REVEALS THAT IN PERFORMING ITS PERSONNEL FUNCTIONS, THE
ACTIVITY'S PERSONNEL OFFICE EXERTS EVERY EFFORT TO MAKE A DISTINCTION
BETWEEN THEIR MILITARY AND CIVILIAN DUTIES.
FOR PURPOSES OF REDUCTIONS IN FORCE, THE ACTIVITY IS REGARDED AS A
SEPARATE AREA OF CONSIDERATION. WITH RESPECT TO PROMOTIONS AND JOB
VACANCIES, PRIORITY IS GIVEN TO INDIVIDUALS WITHIN THE ACTIVITY'S OWN
ORGANIZATION, BUT WHERE NO QUALIFIED CANDIDATE IS AVAILABLE AT THIS
LEVEL, THE ACTIVITY LOOKS TO OTHER AIR FORCE RESERVE ORGANIZATIONS ON A
NATIONWIDE BASIS AND TO THE APPLICABLE CIVIL SERVICE REGISTERS. AS A
RESULT OF THIS PROMOTION POLICY, THE RECORD REVEALS THAT THE FREQUENCY
OF TRANSFERS WITH CO-EQUAL AIR FORCE RESERVE UNITS IS LIMITED AND THOSE
TRANSFERS WHICH DO OCCUR ARE OF A PERMANENT NATURE. /3/
BASED ON THE FOREGOING, I FIND THE UNIT SOUGHT IS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER. IN THIS CONNECTION,
IT IS NOTED THAT THE EVIDENCE ESTABLISHES THAT THE ACTIVITY OPERATES
INDEPENDENTLY OF THE HOST ORGANIZATION AND OF OTHER TENANTS AT THE NAVAL
AIR STATION AT BELLE CHASSE; IS GEOGRAPHICALLY SEPARATED FROM OTHER AIR
FORCE RESERVE UNITS; AND IS ENGAGED IN AN OPERATION REQUIRING
FUNCTIONAL INTEGRATION OF ITS COMPONENT PARTS. MOREOVER, ALL THE
EMPLOYEES OF THE ACTIVITY WORK IN CLOSE PROXIMITY TO EACH OTHER, ENJOY
SIMILAR WORKING CONDITIONS, ARE SUBJECT TO SAME OVERALL SUPERVISION, ARE
IN THE SAME AREA OF CONSIDERATION FOR PURPOSES OF REDUCTIONS IN FORCE,
ARE ALL SERVED BY THE SAME CIVILIAN PERSONNEL OFFICE, AND HAVE LIMITED
CONTACT WITH OTHER AIR FORCE RESERVE UNITS. THE EVIDENCE ALSO SHOWS
THAT EMPLOYEE TRANSFERS BETWEEN THE ACTIVITY AND OTHER AIR FORCE RESERVE
UNITS ARE MINIMAL AND OF A PERMANENT, AS OPPOSED TO A TEMPORARY, NATURE.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN THE PETITIONED
FOR UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND THAT
SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. ACCORDINGLY, I SHALL DIRECT AN ELECTION IN THE PETITIONED
FOR UNIT.
AS NOTED ABOVE, THE PARTIES DISAGREE ON THE ELIGIBILITY FOR UNIT
INCLUSION OF THE 14 EMPLOYEE CLASSIFICATIONS DISCUSSED BELOW.
AIRCRAFT MAINTENANCE ANALYSIS TECHNICIAN, GS-9
THE ACTIVITY ASSERTS THE EMPLOYEE IN THIS POSITION IS A MANAGEMENT
OFFICIAL AND/OR A SUPERVISOR. THE RECORD REVEALS THAT THIS POSITION IS
LOCATED IN THE ANALYSIS SECTION OF AIRCRAFT MAINTENANCE. THE INCUMBENT
IS RESPONSIBLE FOR THE PREPARATION OF A MONTHLY ANALYSIS OF MAINTENANCE
PRODUCTION PERFORMANCE AND OTHER RELATED DUTIES AS ASSIGNED BY THE CHIEF
OF MAINTENANCE. IN PERFORMING HIS JOB FUNCTIONS, THE RECORD ESTABLISHES
THAT THE INCUMBENT FOLLOWS PRESCRIBED GUIDELINES ESTABLISHED BY HIGHER
AUTHORITY. TO ACCOMPLISH HIS PRIMARY MISSION, THE AIRCRAFT MAINTENANCE
ANALYSIS TECHNICIAN GATHERS MAINTENANCE DATA, MAKES THE NECESSARY
COMPUTATIONS, ANALYZES THE RESULTS, AND PLACES SUCH RESULTS IN THE
PROPER FORMAT. FURTHER, UPON REQUEST, HE PROVIDES NECESSARY INFORMATION
ABOUT VARIOUS ASPECTS OF THE ANALYSIS AT STAFF MEETINGS. THE RECORD
INDICATES THAT THE INCUMBENT DOES NOT MAKE RECOMMENDATIONS BASED ON HIS
ANALYSIS WHICH WOULD AFFECT THE STATUS OF OTHER EMPLOYEES OR WHICH WOULD
EXTEND TO THE DEVELOPMENT OF POLICY AFFECTING THE MISSION OR
ORGANIZATION OF THE ACTIVITY.
UNDER THE FOREGOING CIRCUMSTANCES, I FIND THAT THE INCUMBENT'S ROLE
IS ESSENTIALLY THAT OF AN EXPERT OR PROFESSIONAL RENDERING RESOURCE
INFORMATION AS DISTINGUISHED FROM AN INDIVIDUAL ACTIVELY INVOLVED IN THE
ULTIMATE DETERMINATION OF WHAT POLICY SHOULD IN FACT BE. ACCORDINGLY, I
CONCLUDE THAT AN EMPLOYEE IN THIS CLASSIFICATION IS NOT A MANAGEMENT
OFFICIAL WITHIN THE MEANING OF THE ORDER. /4/ NOR IS THE EMPLOYEE A
SUPERVISOR AS ANY AUTHORITY HE MAY POSSESS IS EXERCISED WITH RESPECT TO
ONLY ONE EMPLOYEE, A SUBORDINATE IN HIS SECTION HAVING THE SAME JOB
TITLE BUT A LOWER GRADE DESIGNATION. /5/
AIRCRAFT LOADMASTER (INSTRUCTOR), GS-9
THE AIRCRAFT LOADMASTER, GS-9, IS AN ART POSITION LOCATED IN THE
FLYING TRAINING BRANCH OF THE OPERATIONS AND TRAINING DIVISION. THE
PURPOSE OF THIS POSITION IS TO ADMINISTER, SCHEDULE, AND CONDUCT FLIGHT
AERIAL PORT TEAMS, AND PERFORM LOADMASTER DUTIES. THE INCUMBENT ALSO
ADMINISTERS FLIGHT CHECKS AND WORKS UNDER THE GENERAL SUPERVISION OF THE
OPERATIONS AND TRAINING OFFICER.
THE ACTIVITY CONTENDS THAT THE EMPLOYEE IN THIS POSITION IS A
SUPERVISOR WITHIN THE MEANING OF THE ORDER. IN THIS REGARD, THE RECORD
REVEALS THAT WHILE THE INCUMBENT EXERCISES NO AUTHORITY OVER CIVILIAN
EMPLOYEES, HE DOES HAVE CERTAIN RESPONSIBILITIES WITH REGARD TO A TOTAL
OF APPROXIMATELY EI ACTIVE-DUTY RESERVISTS, OF WHOM AT LEAST TWO ARE
UNDER HIS DIRECTION EACH DAY. HIS RESPONSIBILITIES WITH REGARD TO THESE
INDIVIDUALS INCLUDE THE FOLLOWING: (1) THE ASSIGNMENT OF MILITARY
RATINGS AFTER PERFORMANCE EVALUATIONS HAVE BEEN COMPLETED ON EACH
RESERVIST; (2) THE DETERMINATION AS TO WHAT WORK WILL PROCEED AND WHO
WILL PERFORM IT; (3) THE IMPLEMENTATION OF THE LOADMASTER TRAINING
PROGRAM AND THE SCHEDULING OF LOADMASTERS; AND (4) RECOMMENDATIONS TO
THE OPERATIONS AND TRAINING OFFICER CONCERNING WHETHER INDIVIDUALS MEET
THE NECESSARY QUALIFICATIONS FOR THE LOADMASTER POSITION. THE RECORD
FURTHER INDICATES THAT WHILE THE INCUMBENT'S EVALUATIONS ARE NOT ALWAYS
FOLLOWED, SUCH RECOMMENDATIONS ARE GIVEN GREAT WEIGHT AND, AT LEAST IN
ONE INSTANCE, A NEGATIVE DETERMINATION BY THE INCUMBENT WAS FOLLOWED.
MOREOVER, TESTIMONY REVEALS THAT, EXCEPT FOR OCCASIONAL CONFERENCES, THE
INCUMBENT WORKS INDEPENDENTLY OF HIS IMMEDIATE SUPERVISOR AND RUNS HIS
SECTION MORE OR LESS AS HE SEES FIT. ADDITIONALLY, THE RECORD
ESTABLISHES THAT THE INCUMBENT ATTENDS MONTHLY SUPERVISORY MEETINGS
WHICH ARE ATTENDED ALSO BY, AMONG OTHERS, THE OPERATIONS AND TRAINING
OFFICER, THE CHIEF OF MAINTENANCE, AND AN OFFICIAL FROM THE PERSONNEL
OFFICE. THE INCUMBENT PERFORMS THE ABOVE FUNCTIONS WITH RESPECT TO
ACTIVE-DUTY MILITARY PERSONNEL ON A REGULAR, RECURRING BASIS WHILE IN
HIS CIVILIAN STATUS.
IN DEPARTMENT OF THE AIR FORCE, MCCONNELL AIR FORCE BASE, KANSAS,
A/SLMR NO. 134, I FOUND THAT IN DETERMINING THE SUPERVISORY STATUS OF
CERTAIN INDIVIDUALS, IT WAS IMMATERIAL WHETHER SUPERVISORY AUTHORITY WAS
EXERCISED OVER UNIT OR NON-UNIT EMPLOYEES, OR OVER "PERSONS", SUCH AS
MILITARY PERSONNEL, WHO ARE NOT "EMPLOYEES" WITHIN THE MEANING OF
SECTION 2(B) OF THE ORDER. RATHER, I CONCLUDED THAT SUPERVISORY STATUS
IS DETERMINED BY THE DUTIES PERFORMED BY THE ALLEGED SUPERVISOR AS
DISTINGUISHED BY THE TYPE OF PERSONNEL WORKING UNDER HIM. IN THE
INSTANT CASE, THE RECORD IS CLEAR THAT THE AIRCRAFT LOADMASTER
INSTRUCTOR GS-9 MEETS THE CRITERIA FOR SUPERVISORY STATUS IN THAT HE
POSSESSES THE INDEPENDENT AND RESPONSIBLE AUTHORITY TO DIRECT OTHER
PERSONS (ACTIVE-DUTY RESERVISTS), HAS THE POWER TO MAKE PERFORMANCE
EVALUATIONS, AND HAS MADE EFFECTIVE RECOMMENDATIONS MATERIALLY AFFECTING
THE STATUS OF THE ACTIVE-DUTY RESERVISTS ASSIGNED TO HIS SECTION.
ACCORDINGLY, THIS CLASSIFICATION WILL BE EXCLUDED FROM THE UNIT FOUND
APPROPRIATE.
AIRCRAFT LOADMASTER (INSTRUCTOR), GS-8
THE AIRCRAFT LOADMASTER (INSTRUCTOR), GS-8, IS AN ART POSITION
LOCATED IN THE FLYING TRAINING BRANCH OF THE OPERATIONS AND TRAINING
DIVISION. ALTHOUGH ONLY ONE OF THE TWO INCUMBENTS IN THIS POSITION HAS
THE AUTHORITY TO PERFORM FLIGHT CHECKS, THE RECORD REVEALS THAT THEY
BOTH HAVE ESSENTIALLY THE SAME DUTIES WHILE FUNCTIONING IN THEIR
CIVILIAN CAPACITY. SUCH DUTIES INCLUDE ADMINISTERING, SCHEDULING AND
CONDUCTING FLIGHT AND GROUND TRAINING FOR ASSIGNED RESERVE LOADMASTERS
AND THE PERFORMANCE OF REGULAR LOADMASTER DUTIES. THEIR IMMEDIATE
SUPERVISOR IS THE OPERATIONS AND TRAINING OFFICER AND THEY ARE NOT
SUPERVISED IN ANY FASHION BY THE AIRCRAFT LOADMASTER INSTRUCTOR, GS-9.
ALTHOUGH THE ACTIVITY ALLEGES THAT THE EMPLOYEES IN THE ABOVE
CLASSIFICATION ARE SUPERVISORS, THE RECORD INDICATES THAT THE INCUMBENTS
FOLLOW ESTABLISHED GUIDELINES IN THEIR TRAINING FUNCTION AND DO NOT
ATTEND SUPERVISORY MEETINGS ON A REGULAR BASIS, INTERVIEW FOR HIRING,
MAKE EFFECTIVE RECOMMENDATIONS FOR PROMOTIONS OR IN-GRADE RAISES, ADJUST
GRIEVANCES, OR ADMINISTER DISCIPLINE. IN ADDITION, THE RECORD INDICATES
THAT WHEN EITHER INCUMBENT IS IN FLIGHT STATUS, HE PERFORMS HIS
FUNCTIONS AS PART OF THE CREW AND, AS SUCH, IS UNDER THE DIRECTION OF
THE AIRCRAFT COMMANDER. FINALLY, THE RECORD REVEALS THAT WHILE IN
CIVILIAN STATUS, NEITHER INCUMBENT PERFORMS THE SUPERVISORY FUNCTIONS
OVER RESERVISTS WHICH ARE PERFORMED BY THE AIRCRAFT LOADMASTER
INSTRUCTOR, GS-9, DESCRIBED ABOVE.
BASED ON THE FOREGOING, I CONCLUDE THAT THE AIRCRAFT LOADMASTER
INSTRUCTORS, GS-8, ARE NOT SUPERVISORS WITHIN THE MEANING OF THE ORDER.
THEREFORE, EMPLOYEES IN THIS CLASSIFICATION SHOULD BE INCLUDED IN THE
UNIT.
FLIGHT ENGINEER (INSTRUCTOR), GS-9
THE POSITION OF FLIGHT ENGINEER (INSTRUCTOR) IS AN ART POSITION IN
THE FLYING TRAINING BRANCH OF THE OPERATIONS AND TRAINING DIVISION. THE
TWO INCUMBENTS IN THIS POSITION ARE RESPONSIBLE DIRECTLY TO THE
OPERATIONS AND TRAINING OFFICER. THE PRINCIPAL FOCUS OF THE INCUMBENTS'
DUTIES IS THE FLIGHT ENGINEER TRAINING PROGRAM, WHICH IS A PROGRAM
DESIGNED TO TRAIN AND PRODUCE COMPETENT FLIGHT ENGINEERS FOR THE FLIGHT
ENGINEERS. THE RECORD REVEALS THAT THE FLIGHT ENGINEER INSTRUCTORS
PROVIDE THIS TYPE OF TRAINING WHEN THERE HAS BEEN A CHANGE OF MISSION, A
CHANGE IN UNIT EQUIPMENT OR AIRCRAFT, OR AN ASSIGNMENT OF NEW PERSONNEL,
EITHER CIVILIAN OR MILITARY. SUCH OCCURRENCES, ORDINARILY, DO NOT TAKE
PLACE MORE THAN ONCE OR TWICE A YEAR. THE RECORD INDICATES THAT THE
FLIGHT ENGINEER INSTRUCTORS SPEND APPROXIMATELY 50 PERCENT OF THEIR TIME
IN PREPARATION FOR AND ACTUAL INSTRUCTION TO FLIGHT ENGINEERS. THE
REMAINDER OF THEIR TIME IS DIVIDED BETWEEN THEIR DUTIES AS REGULAR
FLIGHT ENGINEERS AND CLERICAL OR ADMINISTRATIVE FUNCTIONS RELATING TO
THE TRAINING, STANDARDIZATION/EVALUATION CHECKS, AND SCHEDULING OF OTHER
FLIGHT ENGINEERS.
THE ACTIVITY ALLEGES THAT BECAUSE THE INCUMBENTS IMPLEMENT THE FLIGHT
ENGINEER TRAINING PROGRAM AND ARE CONSULTED, IN THIS RESPECT, BY THE
OPERATIONS AND TRAINING OFFICER, THE FLIGHT SCHEDULING STAFF, AND THE
GROUP AND WING COMMANDER, THEY ARE MANAGEMENT OFFICIALS AND SHOULD BE
EXCLUDED FROM THE UNIT. IN THIS CONNECTION, THE RECORD REVEALS THAT
WHILE THE INCUMBENTS ATTEMPT TO DEVELOP THE CONTENT OF THE TRAINING
PROGRAM AND DETERMINE HOW AND WHEN SUCH TRAINING IS TO BE GIVEN TO
FLIGHT ENGINEERS, THEIR CONTROL OVER SUCH MATTERS IS LIMITED. THUS, IN
THE PREPARATION OF LESSON PLANS, THE RECORD SHOWS THAT THE INCUMBENTS
READ AND RESEARCH AIR FORCE MANUALS, TECHNICAL ORDERS, REGULATIONS, AND
FLIGHT MANUALS TO ACQUIRE A GENERAL KNOWLEDGE OF THE PARTICULAR SYSTEM
INVOLVED, INSTRUMENTAL TO THE PREPARATION OF AN OUTLINE FROM WHICH THEY
CAN INSTRUCT. HOWEVER, SUCH LESSON PLANS ARE REVIEWED THOROUGHLY BY THE
OPERATIONS AND TRAINING OFFICER.
THE FOREGOING FACTS CONVINCE ME THAT THE INCUMBENTS' ROLE IN THE
IMPLEMENTATION OF THE FLIGHT ENGINEER TRAINING PROGRAM IS THAT OF AN
EXPERT RENDERING RESOURCE MATERIAL, AND THAT, ACCORDINGLY, THE EMPLOYEES
IN THIS CLASSIFICATION ARE NOT MANAGEMENT OFFICIALS WITHIN THE MEANING
OF THE ORDER. /6/
THE ACTIVITY CONTENDS ALSO THAT THE ABOVE INCUMBENTS ARE SUPERVISORS
WITHIN THE MEANING OF THE ORDER. IN THIS CONNECTION, THE RECORD SHOWS
THAT ALTHOUGH THE FLIGHT ENGINEER INSTRUCTORS PERFORM
STANDARDIZATION/EVALUATION CHECKS ON OTHER REGULAR FLIGHT ENGINEERS
(ART'S) AT THE ACTIVITY, THEY MERELY REPORT THE RESULTS TO THEIR
IMMEDIATE SUPERVISOR, WHO THEN ACTS UPON THIS INFORMATION IN ACCORDANCE
WITH ESTABLISHED GUIDELINES. MOREOVER, THE INCUMBENTS EXERCISE NO
AUTHORITY OVER THESE SAME ART'S WITH RESPECT TO HIRING, TRANSFERS,
SUSPENSIONS, LAYOFFS, RECALLS, PROMOTIONS, DISMISSALS, ASSIGNMENTS,
REWARDS, OR DISCIPLINE; DO NOT DIRECT THE WORK OF THESE INDIVIDUALS OR
ADJUST THEIR GRIEVANCES; AND DO NOT EFFECTIVELY RECOMMEND ANY OF THE
ABOVE ACTIONS. WHILE, BASED ON THE FOREGOING, THE RECORD SHOWS THAT THE
INCUMBENTS DO NOT EXERCISE ANY SUPERVISORY AUTHORITY OVER ART'S WHO ARE
REGULAR CIVILIAN FLIGHT ENGINEERS OF THE ACTIVITY, IT IS APPARENT THAT
THE INCUMBENTS EXERCISE SOME AUTHORITY WITH REGARD TO ACTIVE-DUTY
RESERVISTS. THUS, IT APPEARS THAT, TO SOME EXTENT, THEY MAKE WORK
ASSIGNMENTS, EVALUATE FLIGHT ENGINEER'S PERFORMANCE, AND RECOMMEND SUCH
ACTIONS AS HIRING, PROMOTIONS, AND DISCHARGES WITH RESPECT TO
ACTIVE-DUTY RESERVISTS. HOWEVER, THE RECORD DOES NOT CONTAIN SUFFICIENT
FACTS UPON WHICH TO DETERMINE WHETHER THE INCUMBENTS PERFORM THESE
FUNCTIONS WITH REGARD TO ACTIVE-DUTY RESERVISTS ON A REGULAR, RECURRING
BASIS, OR WHETHER SUCH AUTHORITY IS MERELY EXERCISED INTERMITTENTLY AND
ON AN INFREQUENT BASIS. UNDER THESE CIRCUMSTANCES, I AM UNABLE TO MAKE
A FINDING WITH REGARD TO THE SUPERVISORY STATUS OF THE FLIGHT ENGINEER
INSTRUCTORS.
PUBLIC INFORMATION OFFICER
THE PUBLIC INFORMATION OFFICER IS DIRECTLY RESPONSIBLE TO THE GROUP
COMMANDER. THE PURPOSE OF THIS CIVILIAN POSITION IS TO DEVELOP INTERNAL
AND EXTERNAL INFORMATION PROGRAMS AND TO ESTABLISH AND MAINTAIN
EFFECTIVE RELATIONS WITH LOCAL COMMUNITIES AND WITH THE PUBLIC AT LARGE.
TOWARD THIS END, THE INCUMBENT PUBLISHES A MONTHLY NEWSPAPER WHEREIN HE
WRITES EDITORIAL COPY UNDER THE BY-LINE OF THE COMMANDER AND,
ADDITIONALLY, PUBLISHES ANNUAL INFORMATION BROCHURES WHICH ARE USED IN
UNIT BRIEFINGS. THE EMPLOYEE IN THIS POSITION ALSO WRITES NEWS RELEASES
AND ACTS AS THE UNIT PHOTOGRAPHER.
WHILE THE RECORD IS CLEAR THAT NO SUPERVISORY DUTIES ARE PERFORMED BY
THE INCUMBENT, THE ACTIVITY MAINTAINS THAT THE EMPLOYEE IN THIS
CLASSIFICATION SHOULD BE EXCLUDED FROM THE UNIT ON THE BASIS THAT HE IS
A MANAGEMENT OFFICIAL. IN THIS CONNECTION, THE RECORD SHOWS THAT THE
INCUMBENT, IN ESSENCE, DETERMINES THE ACTIVITY'S PUBLIC INFORMATION
POLICY, AS IT APPLIES LOCALLY, WITH SOME ASSISTANCE FROM HIGHER LEVEL
STAFF MEETINGS AND WORKS IN CLOSE CONCERT WITH THE COMMANDER. THE
RECORD FURTHER REVEALS THAT THE GROUP COMMANDER USUALLY APPROVES THE
INCUMBENT'S POLICY RECOMMENDATIONS.
BASED ON THE FOREGOING, I FIND THAT THE PUBLIC INFORMATION OFFICER
DOES NOT SHARE A COMMUNITY OF INTEREST WITH THE EMPLOYEES IN THE UNIT
FOUND APPROPRIATE. RATHER, THE RECORD INDICATES THAT THE FUNCTIONS
ASSIGNED TO THE INCUMBENT PLACE THE INTERESTS OF AN EMPLOYEE IN THIS
CLASSIFICATION MORE CLOSELY WITH PERSONNEL WHO FORMULATE, DETERMINE AND
OVERSEE POLICY THAN WITH PERSONNEL WHO CARRY OUT THE RESULTANT POLICY.
/7/ MOREOVER, THE FOREGOING FACTS CONVINCE ME THAT THE INCUMBENT
ACTIVELY PARTICIPATES IN THE ULTIMATE DETERMINATION OF POLICY AND, AS A
RESULT, HIS INCLUSION IN THE UNIT COULD RESULT IN A CONFLICT OR APPARENT
CONFLICT OF INTEREST WITHIN THE MEANING OF SECTION 1(B) OF THE ORDER.
ACCORDINGLY, I FIND THAT THE PUBLIC INFORMATION OFFICER IS A MANAGEMENT
OFFICIAL WITHIN THE MEANING OF THE ORDER AND, AS SUCH, SHALL BE EXCLUDED
FROM THE UNIT FOUND APPROPRIATE.
"SHOP CHIEFS" /8/
THE FOLLOWING EIGHT JOB CLASSIFICATIONS, ALL OF WHICH ARE EITHER IN
THE ORGANIZATIONAL MAINTENANCE BRANCH OR THE FIELD MAINTENANCE BRANCH,
ARE CONSIDERED TOGETHER BECAUSE, WHILE EACH CLASSIFICATION INVOLVES
DIFFERENT FUNCTIONS, ALL OF THE INCUMBENTS PERFORM AS "SHOP CHIEFS"
WITHIN THEIR PARTICULAR AREA OR SHOP: AIRCRAFT ELECTRICIAN, WG-12;
AIRCRAFT HYDRAULIC SYSTEMS MECHANIC, WG-12; AIRCRAFT INSTRUMENT AND
CONTROL SYSTEMS MECHANIC, WG-12; SHEET METAL MECHANIC (AIRCRAFT),
WG-12; AIRCRAFT PROPELLER MECHANIC, WG-12; AIRCRAFT MECHANIC, WG-12;
AIRCRAFT MECHANIC LEADER, WL-10; AND AIRCRAFT JET ENGINE MECHANIC
LEADER, WL-10. THE ACTIVITY CONTENDS THAT THE DUTIES PERFORMED BY THE
ABOVE EMPLOYEES IN THEIR CAPACITY AS "SHOP CHIEFS" ARE SUPERVISORY IN
NATURE AND THAT THEIR EXCLUSION FROM THE UNIT ON THIS BASIS IS
WARRANTED.
THE RECORD REFLECTS THAT THE RESPONSIBILITIES OF THE VARIOUS "SHOP
CHIEFS" ARE ESSENTIALLY THE SAME AND THAT THE DIFFERENCE IN GRADE LEVELS
IS BASED SOLELY ON THE NUMBER OF EMPLOYEES IN EACH SHOP. EACH "SHOP
CHIEF" IS THE CUSTODIAN OF PROPERTY, SPECIAL TOOLS, AND EQUIPMENT IN HIS
SHOP, AND FOR THE ACCURACY OF ALL MAINTENANCE DOCUMENTS. ALTHOUGH THE
INCUMBENTS HAVE RESPONSIBILITY FOR MAKING JOB ASSIGNMENTS WITHIN THEIR
RESPECTIVE SHOPS AS THE WORK IS CALLED DOWN FROM THE MAINTENANCE CONTROL
SECTION, THE RECORD INDICATES THAT THE INCUMBENTS' SELECTION OF
EMPLOYEES FOR SUCH WORK IS BASED ON THE AVAILABILITY OF EMPLOYEES, AND
THUS INVOLVES LIMITED DISCRETION. IN PERFORMANCE OF THEIR DUTIES THE
SHOP CHIEFS, WHEN REQUESTED, INSPECT OTHER EMPLOYEES' WORK IN PROGRESS,
OR WHEN COMPLETED, AND ALSO SIGN TO INDICATE THE WORK HAS BEEN INSPECTED
AND IS CONSIDERED SAFE.
THE RECORD REVEALS THAT THE "SHOP CHIEFS" WORK ALONG WITH OTHER
EMPLOYEES IN THEIR AREA AND THAT MOST PROCEDURES IN EACH SECTION ARE
ROUTINE, PERIODIC, AND REQUIRE LITTLE, IF ANY, DIRECTION. IN THIS
CONNECTION, EACH EMPLOYEE IS HIGHLY QUALIFIED, KNOWS WHAT IS EXPECTED OF
HIM AND PERFORMS HIS JOB IN ACCORDANCE WITH WORK GUIDELINES AND SPECIFIC
REQUESTS. IN THIS SENSE, THE ACTIVITIES OF THE "SHOP CHIEFS" ARE
STRICTLY PRESCRIBED AND LEAVE LITTLE ROOM FOR THE EXERCISE OF
INDEPENDENT JUDGMENT. THE RECORD SHOWS ALSO THAT THE "SHOP CHIEFS" DO
NOT COMPLETE WRITTEN, FORMAL EVALUATIONS OF THE EMPLOYEES UNDER THEM, DO
NOT APPROVE ANNUAL OR SICK LEAVE REQUESTS, AND DO NOT RECOMMEND NEW
HIRES, DISMISSALS, TRANSFERS OR PROMOTIONS. MOREOVER, THE INCUMBENTS
ARE NOT AUTHORIZED TO DISCIPLINE OR ADJUST GRIEVANCES OF EMPLOYEES AND
THEY DO NOT ATTEND ANY SUPERVISORY MEETINGS.
UNDER THE FOREGOING CIRCUMSTANCES, I FIND THAT THE "SHOP CHIEFS" ARE
NOT SUPERVISORS WITHIN THE MEANING OF THE ORDER. ACCORDINGLY, THE
EMPLOYEES IN THE ABOVE-NAMED CLASSIFICATIONS SHOULD BE INCLUDED IN THE
UNIT FOUND APPROPRIATE.
WAREHOUSEMAN LEADER, WL-6
THIS POSITION IS LOCATED IN THE MATERIEL FACILITIES BRANCH. THE
INCUMBENT PROVIDES ASSISTANCE TO THE MATERIEL FACILITIES FOREMAN, WHO
GIVES HIM WRITTEN AND VERBAL INSTRUCTIONS AND CHECKS HIS PERFORMANCE
PERIODICALLY FOR QUALITY AND THE ACHIEVEMENT OF ESTABLISHED OBJECTIVES.
THE WAREHOUSEMAN LEADER FILLS IN FOR THE MATERIEL FACILITIES FOREMAN
WHEN THE LATTER IS ON ANNUAL LEAVE, WHICH OCCURS APPROXIMATELY ONCE A
YEAR.
THE RECORD ESTABLISHES THAT THE INCUMBENT RECEIVES SPECIFIC WORK
ASSIGNMENTS FOR EACH OF THE FIVE EMPLOYEES IN HIS SECTION FROM HIS
IMMEDIATE SUPERVISOR ON A DAILY BASIS. WHEN NECESSARY, THE INCUMBENT
WORKS ALONG WITH THE MEN ON TASKS WHICH MAY BE CHARACTERIZED AS ROUTINE.
IN ADDITION, THE INCUMBENT HAS OCCASIONAL INFORMAL MEETINGS WITH HIS
SUPERVISOR WHEREIN WORK ASSIGNMENTS ARE DISCUSSED. THE RECORD REVEALS
THAT IN MOST AREAS, THE INCUMBENT'S ACTIVITIES ARE STRICTLY PRESCRIBED
AND REQUIRE LIMITED USE OF INDEPENDENT JUDGMENT. MOREOVER, THE RECORD
CLEARLY INDICATES THAT THE EMPLOYEE IN THIS CLASSIFICATION HAS NO
AUTHORITY TO ASSIGN PERFORMANCE RATINGS TO HIS EMPLOYEES, TO APPROVE
ANNUAL OR SICK LEAVE REQUESTS, OR TO RECOMMEND NEW HIRES, DISMISSALS,
TRANSFERS OR PROMOTIONS.
IN LIGHT OF THE ABOVE FACTS, I FIND THAT THE EMPLOYEE IN THIS
CLASSIFICATION IS NOT A SUPERVISOR WITHIN THE MEANING OF THE ORDER, AND
SHOULD BE INCLUDED IN THE UNIT.
BASED ON ALL OF THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491, AS AMENDED:
ALL EMPLOYEES /9/ OF THE 926TH TACTICAL AIRLIFT GROUP, UNITED STATES
AIR FORCE RESERVE,
LOCATED ON THE NAVAL AIR STATION, BELLE CHASSE, LOUISIANA, INCLUDING
THE CLASSIFICATIONS OF
AIRCRAFT ELECTRICIAN, WG-12; AIRCRAFT HYDRAULIC SYSTEMS MECHANIC,
WG-12; AIRCRAFT INSTRUMENT
AND CONTROL SYSTEMS MECHANIC, WG-12: AIRCRAFT JET ENGINE MECHANIC
LEADER, WL-10; AIRCRAFT
LOADMASTER (INSTRUCTOR), GS-8; AIRCRAFT MAINTENANCE ANALYSIS
TECHNICIAN, GS-9; AIRCRAFT
MECHANIC WG-12; AIRCRAFT MECHANIC LEADER, WL-10; AIRCRAFT PROPELLER
MECHANIC, WG-12; SHEET
METAL MECHANIC (AIRCRAFT), WG-12; AND WAREHOUSEMAN LEADER, WL-6,
EXCLUDING AIRCRAFT LOADMASTER
(INSTRUCTOR), GS-9, PUBLIC INFORMATION OFFICER, PROFESSIONAL
EMPLOYEES /10/, EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
CONFIDENTIAL EMPLOYEES,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
EXECUTIVE ORDER. /11/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE ALL THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR
IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR
WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PERIOD AND WHO HAVE NOT
BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE
SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 513, INDEPENDENT.
DATED, WASHINGTON, D.C.
NOVEMBER 30, 1972
/1/ THE REMAINING TENANTS ON THE HOST NAVAL BASE ARE UNITS OF THE AIR
NATIONAL GUARD, U.S. COAST GUARD, MARINE RESERVE, AND NAVAL AIR RESERVE.
/2/ THE ACTIVITY'S ART'S WORK A REGULAR 40-HOUR WEEK AND DIFFER FROM
THE OTHER CIVILIAN EMPLOYEES IN ONLY ONE MAJOR RESPECT; NAMELY, TO
RETAIN THEIR CIVILIAN JOBS, ART'S MUST MAINTAIN RESERVE STATUS WHEREIN
THEY HOLD MILITARY GRADES AND ASSUME VARIOUS RESPONSIBILITIES WITH
REGARD TO RESERVISTS ON ACTIVE DUTY.
/3/ THE RECORD INDICATES THAT SINCE NOVEMBER 1971, THERE HAVE BEEN NO
TRANSFERS INTO THE 926TH TACTICAL AIRLIFT GROUP.
/4/ CF. DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
A/SLMR NO. 135.
/5/ IN UNITED STATES DEPARTMENT OF AGRICULTURE, NORTHERN MARKETING
AND NUTRITION RESEARCH DIVISION, PEORIA, ILLINOIS, A/SLMR NO. 120, I
CONCLUDED THAT EMPLOYEES ARE NOT SUPERVISORS WITHIN THE MEANING OF THE
EXECUTIVE ORDER WHEN THE SUPERVISORY AUTHORITY THEY EXERCISE IS LIMITED
TO ONE EMPLOYEE.
/6/ CF. DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
CITED ABOVE.
/7/ SEE THE VETERANS ADMINISTRATION HOSPITAL, AUGUSTA, A/SLMR NO. 3.
/8/ THE "SHOP CHIEFS" IN THIS CASE INVOLVE EMPLOYEES PERFORMING
DIFFERENT FUNCTIONS FROM THE EMPLOYEES DESIGNATED AS "SHOP CHIEFS" IN
NEW JERSEY DEPARTMENT OF DEFENSE, A/SLMR NO. 121.
/9/ THE RECORD INDICATES THAT THERE ARE SEVERAL "TEMPORARY" EMPLOYEES
AT THE ACTIVITY WHO HAVE A REASONABLE EXPECTANCY OF CONTINUED
EMPLOYMENT. ALL PARTIES AGREE THEY SHOULD BE INCLUDED WITHIN ANY UNIT
FOUND APPROPRIATE. AS THE RECORD SUPPORTS THE POSITION OF THE PARTIES,
I FIND THESE EMPLOYEES SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST WITH OTHER EMPLOYEES IN THE UNIT FOUND APPROPRIATE AND SHOULD
BE INCLUDED IN THE UNIT.
/10/ DURING THE HEARING, THE PARTIES STIPULATED THAT THE CIVIL
ENGINEER, GS-11, IS A PROFESSIONAL EMPLOYEE. HOWEVER, THE STIPULATION
AND RECORD DO NOT INDICATE THAT THE REQUIREMENTS OF THIS POSITION MEET
THE ESTABLISHED CRITERIA FOR PROFESSIONAL EMPLOYEE STATUS SET FORTH IN
DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, RIVERSIDE DISTRICT
AND LAND OFFICE, A/SLMR NO. 170. IN THESE CIRCUMSTANCES, I MAKE NO
FINDINGS AS TO THE PROFESSIONAL STATUS OF THIS CLASSIFICATION.
/11/ DURING THE HEARING, THE PARTIES STIPULATED TO THE EFFECT THAT
CERTAIN EMPLOYEES IN THE FOLLOWING CATEGORIES SHOULD BE EXCLUDED FROM
THE UNIT: (1) SOME 38 EMPLOYEES WHO ARE SUPERVISORS AND/OR MANAGEMENT
OFFICIALS; (2) FULL-TIME GUARDS (4 IN NUMBER); (3) CONFIDENTIAL
EMPLOYEES, I.E., A PERSONNEL CLERK, GS-5, AND A SECRETARY STENO, GS-5,
WHO WORK FOR, RESPECTIVELY, THE PERSONNEL MANAGEMENT SPECIALIST AND THE
COMMANDER. I FIND THAT EACH OF THE ABOVE STIPULATIONS IS FULLY
SUPPORTED BY THE RECORD AND, THEREFORE, SHALL EXCLUDE THESE EMPLOYEES
FROM THE UNIT FOUND APPROPRIATE. I SHALL ALSO EXCLUDE, AS REQUESTED BY
THE PARTIES, A CLERK-STENO, GS-4, WHO, WHILE UNDER THE JURISDICTION OF
THE ACTIVITY'S PERSONNEL OFFICE, IS NOT EMPLOYED BY THE ACTIVITY AND IS
NOT LOCATED AT BELLE CHASSE. IN ADDITION, THE PARTIES STIPULATED THAT
TWO MILITARY PERSONNEL CLERKS, GS-4, AND A MILITARY PERSONNEL
TECHNICIAN, GS-7, SHOULD BE INCLUDED IN THE ABOVE UNIT BECAUSE THEY ARE
NOT CONFIDENTIAL EMPLOYEES. AS THE RECORD SUPPORTS SUCH A FINDING, I
FIND THAT THE EMPLOYEES IN THESE CLASSIFICATIONS SHOULD BE INCLUDED IN
THE UNIT.
2 A/SLMR 220; P. 554; CASE NO. 30-4659(RO); NOVEMBER 30, 1972.
GENERAL SERVICES ADMINISTRATION,
REGION 2, NEW YORK, NEW YORK
A/SLMR NO. 220
THIS CASE INVOLVING A REPRESENTATION PETITION FILED BY THE
INTERNATIONAL FEDERATION OF FEDERAL POLICE (IFFP) SEEKING A UNIT OF U.S.
GUARDS, U.S. SPECIAL POLICE, AND FEDERAL PROTECTIVE OFFICERS EMPLOYED BY
REGION 2 OF THE GENERAL SERVICES ADMINISTRATION, RAISED QUESTIONS AS TO
(1) WHETHER AN EXISTING AGREEMENT BETWEEN THE ACTIVITY AND THE AMERICAN
POSTAL WORKERS' UNION, LOCAL 123, (APWU) COVERING A UNIT OF GUARD AND
NONGUARD EMPLOYEES CONSTITUTED A BAR, AND (2) THE ELIGIBILITY OF THE
ACTIVITY'S FIREFIGHTERS WHO PERFORMED CERTAIN GUARD-TYPE FUNCTIONS FOR
INCLUSION IN THE CLAIMED UNIT OF GUARDS.
THE RECORD REVEALED THE EXISTENCE OF A CURRENT NEGOTIATED AGREEMENT
BETWEEN THE ACTIVITY AND THE APWU COVERING A UNIT OF ALL NONSUPERVISORY
PUBLIC BUILDINGS SERVICE EMPLOYEES IN ALBANY, NEW YORK, INCLUDING
GUARDS, AND THAT EXCLUSIVE RECOGNITION FOR THE UNIT WAS GRANTED UNDER
EXECUTIVE ORDER 10988. WHILE RECOGNIZING THE FACT THAT SECTION 10(B)(3)
OF EXECUTIVE ORDER 11491 PROHIBITS THE INCLUSION OF ANY GUARDS WITH
NONGUARD EMPLOYEES, THE ASSISTANT SECRETARY FOUND THAT THE NEGOTIATED
AGREEMENT BETWEEN THE APWU AND THE ACTIVITY CONSTITUTED A BAR TO THE
PFFP'S PETITION INSOFAR AS IT COVERS THE GUARDS EMPLOYED BY THE ACTIVITY
IN ALBANY, NEW YORK. THE ASSISTANT SECRETARY NOTED THE "LEGISLATIVE
HISTORY" OF EXECUTIVE ORDER 11491, AND CONCLUDED THAT WHERE, AS HERE, A
UNIT CONTAINING GUARDS AND NONGUARDS IS COVERED BY A NEGOTIATED
AGREEMENT, A PETITION FILED DURING THE TERM OF SUCH AGREEMENT WILL BE
BARRED UNLESS IT IS FILED IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION
202.3(C) OF THE ASSISTANT SECRETARY'S REGULATIONS.
WITH RESPECT TO THE ACTIVITY'S FIREFIGHTERS PERFORMING GUARD-TYPE
FUNCTIONS, THE ASSISTANT SECRETARY FOUND THEY ARE NOT GUARDS WITHIN THE
MEANING OF THE ORDER AND SHOULD NOT BE INCLUDED IN THE APPROPRIATE UNIT.
THE ASSISTANT SECRETARY NOTED PARTICULARLY THAT THE ACTIVITY'S
FIREFIGHTERS' PRIMARY JOB FUNCTION IS TO RESPOND TO FIRES AND THREATS OF
FIRES AT THE DEPOTS AND THAT ANY GUARD FUNCTIONS THEY PERFORM ARE
INCIDENTAL TO THEIR FIRE FIGHTING FUNCTIONS. ACCORDINGLY, HE DIRECTED
THAT AN ELECTION BE CONDUCTED IN THE UNIT PETITIONED FOR BY THE IFFP.
GENERAL SERVICES ADMINISTRATION,
REGION 2
NEW YORK, NEW YORK
AND
INTERNATIONAL FEDERATION OF FEDERAL POLICE
AND
LOCAL 907, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER SAUL LUBITZ. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, INTERNATIONAL FEDERATION OF FEDERAL POLICE,
HEREIN CALLED IFFP, SEEKS AN ELECTION IN A UNIT OF ALL U.S. GUARDS, U.S.
SPECIAL POLICE AND FEDERAL PROTECTIVE OFFICERS (FPO'S) ASSIGNED TO
GENERAL SERVICES ADMINISTRATION, REGION 2, EXCLUDING SUPERVISORS,
MANAGEMENT OFFICIALS, PROFESSIONAL EMPLOYEES AND EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY. /1/
THE ACTIVITY, THE IFFP AND THE INTERVENOR, LOCAL 907, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, TAKE THE POSITION THAT THE PETITIONED
FOR UNIT IS APPROPRIATE. HOWEVER, QUESTIONS WERE RAISED CONCERNING THE
ELIGIBILITY FOR INCLUSION IN THE CLAIMED UNIT OF THE ACTIVITY'S
FIREFIGHTERS WHO PERFORMED CERTAIN GUARD-TYPE FUNCTIONS.
THE GENERAL SERVICES ADMINISTRATION IS RESPONSIBLE FOR THE MANAGEMENT
OF FEDERAL BUILDINGS. IT IS HEADQUARTERED IN WASHINGTON, D.C., AND HAS
TEN REGIONAL OFFICES. REGION 2, WHICH IS HEADQUARTERED IN NEW YORK,
ENCOMPASSES THE STATES OF NEW YORK, NEW JERSEY, THE COMMONWEALTH OF
PUERTO RICO, AND THE VIRGIN ISLANDS. ALL OF THE EMPLOYEES IN THE
CLAIMED UNIT ARE EMPLOYED BY THE PUBLIC BUILDINGS SERVICE, A SUBDIVISION
OF THE ACTIVITY.
THE ACTIVITY HAS 128 GUARDS AND 102 FPO'S WORKING AT EIGHT LOCATIONS
WITHIN THE NEW YORK CITY METROPOLITAN AREA AND AT TEN LOCATIONS
ELSEWHERE WITHIN THE REGION. ALTHOUGH THE HIRING REQUIREMENTS ARE MORE
STRINGENT FOR FPO'S THAN FOR GUARDS, BOTH PERFORM ESSENTIALLY THE SAME
DUTIES AND ARE UNDER THE SAME SUPERVISORY STRUCTURE. GUARDS AND FPO'S
PERFORM SECURITY FUNCTIONS-- GUARDING BUILDING ENTRANCES, CHECKING THE
IDENTITY OF VISITORS, INSPECTING PACKAGES, PATROLLING FACILITIES AND
DIRECTING TRAFFIC. BOTH WEAR UNIFORMS AND NUMBERED BADGES WHILE ON DUTY
AND WORK EIGHT-HOUR SHIFTS.
THE RECORD REVEALS THAT THERE ARE SEVERAL COLLECTIVE-BARGAINING
AGREEMENTS IN EFFECT IN THE REGION, INCLUDING AN AGREEMENT COVERING
GUARDS IN ALBANY, NEW YORK. THE ACTIVITY CONTENDS THAT THE AGREEMENT
COVERING THE ACTIVITY'S GUARDS IN ALBANY CONSTITUTES A BAR AS TO THOSE
EMPLOYEES.
IN THIS LATTER REGARD THE EVIDENCE ESTABLISHES THAT UNDER EXECUTIVE
ORDER 10988, THE AMERICAN POSTAL WORKERS' UNION, LOCAL 123, (APWU) WAS
GRANTED EXCLUSIVE RECOGNITION FOR A UNIT OF ALL NONSUPERVISORY PUBLIC
BUILDINGS SERVICE EMPLOYEES IN ALBANY, NEW YORK, INCLUDING GUARDS. THE
EVIDENCE ALSO ESTABLISHES THAT AT THE TIME THE PETITION IN THE SUBJECT
CASE WAS FILED, THE EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT WERE
COVERED BY A COLLECTIVE-BARGAINING AGREEMENT. ALTHOUGH RECOGNIZING THE
FACT THAT SECTION 10(B)(3) OF THE ORDER STATES THAT A UNIT SHALL NOT BE
ESTABLISHED IF IT INCLUDES ANY GUARD TOGETHER WITH OTHER EMPLOYEES, I
FIND THAT IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE NEGOTIATED
AGREEMENT BETWEEN THE APWU AND THE ACTIVITY CONSTITUTES A BAR TO THE
IFFP'S PETITION INSOFAR AS IT COVERS THE GUARDS EMPLOYED BY THE ACTIVITY
IN ALBANY, NEW YORK. /2/ THUS, THE "LEGISLATIVE HISTORY" OF EXECUTIVE
ORDER 11491, CONTAINED IN THE STUDY COMMITTEE'S REPORT AND
RECOMMENDATIONS ON LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE,
INDICATED CLEARLY THAT THE REQUIREMENTS THAT GUARDS BE REPRESENTED IN
SEPARATE UNITS BY ORGANIZATIONS WHICH DO NOT ADMIT TO MEMBERSHIP AND ARE
NOT AFFILIATED DIRECTLY OR INDIRECTLY WITH ORGANIZATIONS WHICH ADMIT TO
MEMBERSHIP, EMPLOYEES OTHER THAN GUARDS, WOULD NOT AFFECT EXISTING UNITS
OR REPRESENTATION BUT WOULD BE APPLIED IN ALL UNIT AND REPRESENTATION
DETERMINATIONS UNDER THE NEW ORDER. BASED ON THE "LEGISLATIVE HISTORY,"
IT IS MY VIEW THAT WHERE, AS HERE, A UNIT CONTAINING GUARDS AND
NONGUARDS IS COVERED BY A NEGOTIATED AGREEMENT, A PETITION FILED DURING
THE TERM OF SUCH AGREEMENT WILL BE BARRED UNLESS IT IS FILED IN
ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN SECTION 202.3(C) OF THE
ASSISTANT SECRETARY'S REGULATIONS.
THE RECORD REVEALS THAT THE ACTIVITY EMPLOYS 65 FIREFIGHTERS AT
STORAGE DEPOTS IN FOUR REMOTE LOCATIONS-- SCOTIA AND BINGHAMTON, NEW
YORK, AND BELLE MEADE AND RARITAN, NEW JERSEY. THE EVIDENCE ESTABLISHES
THAT THEIR PRIMARY RESPONSIBILITY IS TO RESPOND TO FIRES AND THREATS OF
FIRES AT THE DEPOTS. INASMUCH AS THE ACTIVITY EMPLOYS NO GUARDS OR
FPO'S AT THE DEPOTS, THE FIREFIGHTERS ALSO PERFORM SECURITY DUTIES. IN
THIS CONNECTION, THE RECORD DISCLOSES THAT FIREFIGHTERS MAKE REGULAR
PATROLS OF THE DEPOTS, WHICH PATROLS ACCOMPLISH THE DUAL FUNCTION OF
WATCHING FOR FIRES AS WELL AS FOR INTRUDERS. ADDITIONALLY, WHILE
FIREFIGHTERS ARE ON DUTY AT THE MAIN GATE THEY SIMULTANEOUSLY MONITOR
THE FIRE CONTROL BOARDS WHICH, AT THE LOCATIONS INVOLVED HEREIN, ARE
FOUND IN THE GUARDHOUSE AT THE MAIN GATE. IN THIS REGARD, THEY ARE
AUTHORIZED TO CLOSE THE GATE IF THEY ARE NEEDED TO FIGHT A FIRE. THE
EVIDENCE ESTABLISHES THAT THE FIREFIGHTERS SPEND THE PREPONDERANCE OF
THEIR TIME PERFORMING FIRE FIGHTING-RELATED DUTIES AND, UNLIKE THE
GUARDS AND FPO'S, DO NOT HAVE ARREST POWERS. ALSO, THE RECORD REVEALS
THAT FIREFIGHTER UNIFORMS DIFFER FROM THOSE WORN BY GUARDS AND FPO'S,
THAT FIREFIGHTERS ARE SUBJECT TO A DIFFERENT SUPERVISORY STRUCTURE THAN
GUARDS AND, THAT UNLIKE THE GUARDS AND FPO'S, FIREFIGHTERS WORK 24-HOUR
SHIFTS.
BASED ON THE FOREGOING CIRCUMSTANCES AND NOTING PARTICULARLY THAT THE
FIREFIGHTERS' PRIMARY JOB FUNCTION IS TO RESPOND TO FIRES AND THREATS OF
FIRES AT THE DEPOTS AND THAT ANY GUARD FUNCTIONS THEY PERFORM ARE
INCIDENTAL TO THEIR FIRE FIGHTING FUNCTIONS, I FIND THAT THE ACTIVITY'S
FIREFIGHTERS ARE NOT GUARDS WITHIN THE MEANING OF THE ORDER.
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF THE EXECUTIVE ORDER:
ALL GUARDS, INCLUDING FEDERAL PROTECTIVE OFFICERS, EMPLOYED BY THE
GENERAL SERVICES
ADMINISTRATION, REGION 2, EXCLUDING GUARDS EMPLOYED BY THE GENERAL
SERVICES ADMINISTRATION,
REGION 2, IN ALBANY, NEW YORK, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT
OFFICIALS, AND SUPERVISORS AS
DEFINED IN THE ORDER. /3/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS SOON AS POSSIBLE, BUT NOT LATER THAN 60
DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR
IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR
WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD, AND WHO
HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE
ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE INTERNATIONAL FEDERATION OF
FEDERAL POLICE. /4/
DATED, WASHINGTON, D.C.
NOVEMBER 30, 1972
/1/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
/2/ THE RECORD REVEALS THAT FIVE GUARDS ARE EMPLOYED BY THE ACTIVITY
IN ALBANY, NEW YORK.
/3/ ALTHOUGH THE CLAIMED UNIT INCLUDED THE CLASSIFICATION U.S.
SPECIAL POLICE, NO EVIDENCE WAS ADDUCED WITH RESPECT TO THE DUTIES OF
THIS JOB CATEGORY. ACCORDINGLY, I SHALL MAKE NO FINDING WITH RESPECT TO
THEIR ELIGIBILITY FOR INCLUSION IN THE PROPOSED UNIT.
/4/ A REPRESENTATIVE OF LOCAL 2041, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE) ENTERED AN APPEARANCE AT THE HEARING AND WAS
PERMITTED TO PARTICIPATE. THE EVIDENCE REVEALS, HOWEVER, THAT THE AFGE
DID NOT EFFECT A TIMELY INTERVENTION IN THIS MATTER. IN ANY EVENT, I
FIND THAT, EVEN IF THE AFGE'S INTERVENTION WAS TIMELY, NEITHER THE AFGE,
NOR THE NFFE (WHICH INTERVENED TIMELY), IS ELIGIBLE FOR PLACEMENT ON THE
BALLOT BECAUSE THEY ARE LABOR ORGANIZATIONS WHICH ADMIT TO MEMBERSHIP
EMPLOYEES OTHER THAN GUARDS. IN THIS REGARD, SEE SECTION 10(C) OF THE
ORDER.
2 A/SLMR 519; P. 551; CASE NO. 60-3007(RO); NOVEMBER 22, 1972.
ARMY AND AIR FORCE EXCHANGE SERVICE,
RICHARDS-GEBAUR CONSOLIDATED
EXCHANGE, RICHARDS-GEBAUR AIR
FORCE BASE, MISSOURI
(WHITEMAN AIR FORCE BASE EXCHANGE,
KNOB NOSTER, MISSOURI)
A/SLMR NO. 219
IN THE SUBJECT CASE, THE PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2361(AFGE) SOUGHT AN ELECTION IN A
UNIT CONSISTING OF EMPLOYEES IN THE ARMY AND AIR FORCE EXCHANGE SERVICE
(AAFES) EMPLOYED AT THE WHITEMAN AIR FORCE BASE EXCHANGE IN KNOB NOSTER,
MISSOURI. THE ACTIVITY CONTENDED, AMONG OTHER THINGS, THAT SUCH UNIT
WAS INAPPROPRIATE INASMUCH AS EMPLOYEES OF THE WHITEMAN AIR FORCE BASE
EXCHANGE DID NOT HAVE A COMMUNITY OF INTEREST DISTINGUISHABLE FROM THAT
OF TWO OTHER INSTALLATIONS, THE RICHARDS-GEBAUR CONSOLIDATED EXCHANGE
AND THE MARINE RECORDS CENTER EXCHANGE LOCATED RESPECTIVELY IN BELTON,
AND KANSAS CITY, MISSOURI.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE AFGE WAS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS REGARD,
HE NOTED THAT THE RESIDENT EXCHANGE MANAGER AT THE WHITEMAN AIR FORCE
BASE EFFECTIVELY MADE THE DAY-TO-DAY MANAGEMENT DECISIONS AT THAT
LOCATION. THUS, THE RESIDENT EXCHANGE MANAGER'S RECOMMENDATIONS FOR
EMPLOYMENT, TERMINATION, PROMOTION AND LEAVE HAVE INVARIABLY BEEN
APPROVED BY THE GENERAL MANAGER AT THE RICHARDS-GEBAUR EXCHANGE.
FURTHER, THE RECORD REVEALS THAT THERE HAS BEEN ONLY ONE EMPLOYEE
TRANSFER FROM WHITEMAN TO THE RICHARDS-GEBAUR EXCHANGE IN THE LAST FIVE
YEARS, AND NO INTERCHANGE BETWEEN THE EXCHANGES IN THIS PERIOD. THE
ASSISTANT SECRETARY ALSO FOUND IT TO BE OF PARTICULAR SIGNIFICANCE THAT
THE WHITEMAN EXCHANGE IS LOCATED APPROXIMATELY 70 MILES FROM THE
RICHARDS-GEBAUR EXCHANGE, AND ABOUT 80 MILES FROM THE MARINE RECORDS
CENTER EXCHANGE.
REGARDING CERTAIN ALLEGED SUPERVISORS, THE ASSISTANT SECRETARY FOUND
THAT THE STOREROOM "SUPERVISOR," THE FOOD ACTIVITIES "SUPERVISOR" AND
THE "SUPERVISORY" SALES CLERK GENERALLY WORKED ALONGSIDE OTHER
EMPLOYEES, AND THAT THEIR ALLEGED SUPERVISORY RESPONSIBILITIES WERE
EXERCISED ONLY IN THE ABSENCE OF THEIR RESPECTIVE MANAGERS AND ON AN
INTERMITTENT AND INFREQUENT BASIS. ACCORDINGLY, THE ASSISTANT SECRETARY
FOUND THEY WERE NOT SUPERVISORS WITHIN THE MEANING OF THE ORDER. HE
FOUND FURTHER THAT THERE WAS INSUFFICIENT EVIDENCE ON WHICH TO DETERMINE
THE UNIT PLACEMENT OF THE WHITEMAN MAIN STORE DEPARTMENT MANAGER AND THE
SERVICE CLERKS WHO WERE ALLEGED TO BE SUPERVISORY EMPLOYEES, OR THE
EXCHANGE MANAGER'S SECRETARY, WHO IT WAS ASSERTED WAS A "CONFIDENTIAL"
EMPLOYEE.
ARMY AND AIR FORCE EXCHANGE SERVICE,
RICHARDS-GEBAUR CONSOLIDATED EXCHANGE,
RICHARDS-GEBAUR AIR FORCE BASE, MISSOURI /1/
(WHITEMAN AIR FORCE BASE EXCHANGE, KNOB NOSTER, MISSOURI)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2361
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LEON H. SKIDGEL.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PETITIONER'S BRIEF
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO LOCAL 2361, HEREINAFTER CALLED AFGE, SEEKS AN ELECTION IN A UNIT
OF ALL REGULAR FULL-TIME AND REGULAR PART-TIME EMPLOYEES EMPLOYED BY
RICHARDS-GEBAUR CONSOLIDATED EXCHANGE WHO ARE WORKING AT WHITEMAN AIR
FORCE BASE, KNOB NOSTER, MISSOURI, EXCLUDING EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
SUPERVISORS AND GUARDS.
THE ACTIVITY CONTENDS THAT A UNIT LIMITED TO EMPLOYEES OF THE
WHITEMAN AIR FORCE BASE EXCHANGE IS INAPPROPRIATE AND THAT AN
APPROPRIATE UNIT SHOULD INCLUDE, IN ADDITION TO EMPLOYEES OF THE
WHITEMAN AIR FORCE BASE EXCHANGE, EMPLOYEES OF THE RICHARDS-GEBAUR
CONSOLIDATED EXCHANGE AT RICHARDS-GEBAUR AIR FORCE BASE LOCATED AT
BELTON, MISSOURI, AND THOSE OF THE MARINE RECORDS CENTER, KANSAS CITY,
MISSOURI. THE ACTIVITY ARGUES IN THIS REGARD THAT ALL OF THESE
LOCATIONS ARE IN CLOSE PROXIMITY; THAT THE OVERALL ADMINISTRATION AND
SUPERVISION OF THESE EXCHANGES AND THEIR EMPLOYEES IS VESTED IN ONE
CENTRAL ADMINISTRATIVE OFFICE; AND THAT THERE IS CONSTANT EMPLOYEE
CONTACT, IDENTITY OF WAGE SCHEDULES, SIMILARITY OF SKILLS, AND AN
IDENTICAL LABOR RELATIONS POLICY FOR ALL EMPLOYEES.
UNIT ISSUE
THE RICHARDS-GEBAUR CONSOLIDATED EXCHANGE IS ONE OF MANY
INSTALLATIONS OPERATED ALL OVER THE WORLD BY THE ARMY AND AIR FORCE
EXCHANGE SERVICE, HEREIN CALLED THE AAFES, WHOSE FUNCTION IS TO PROVIDE
MILITARY PERSONNEL AND OTHER AUTHORIZED PATRONS WITH CERTAIN MERCHANDISE
AND SERVICES. RICHARDS-GEBAUR CONSOLIDATED EXCHANGE IS UNDER THE
OVERALL SUPERVISION OF A GENERAL MANAGER WHO IS RESPONSIBLE FOR THE
OPERATION OF THE BASE EXCHANGES AT WHITEMAN AIR FORCE BASE,
RICHARDS-GEBAUR AIR FORCE BASE, AND THE MARINE RECORDS CENTER. /2/
THE PETITIONED FOR UNIT CONSISTS OF SOME 42 EMPLOYEES /3/ STATIONED
AT WHITEMAN AIR FORCE BASE, HEREIN CALLED WHITEMAN, WHICH IS LOCATED
APPROXIMATELY 70 MILES FROM RICHARDS-GEBAUR AIR FORCE BASE AND
APPROXIMATELY 80 MILES FROM THE MARINE RECORDS CENTER. THE WHITEMAN
EXCHANGE OPERATES A MAIN STORE, A MINUTEMAN MARKET, A CAFETERIA, A
STOCKROOM, A SERVICE STATION, AND A "TOYLAND." /4/ THE OPERATION OF
THESE FACILITIES IS CONDUCTED UNDER THE OVERALL SUPERVISION OF A
RESIDENT EXCHANGE MANAGER LOCATED AT WHITEMAN WHO IS RESPONSIBLE TO THE
GENERAL MANAGER OF THE RICHARDS-GEBAUR CONSOLIDATED EXCHANGE AT
RICHARDS-GEBAUR AIR FORCE BASE. /5/
THE EXCHANGE FACILITIES AT RICHARDS-GEBAUR AIR FORCE BASE EMPLOY A
TOTAL OF SOME 95 EMPLOYEES, INCLUDING 4 EMPLOYEES CLASSIFIED AS REGULAR
PART-TIME. THE RICHARDS-GEBAUR EXCHANGE OPERATES A MAIN STORE, A "STOP
AND SHOP" STORE, A SNACK BAR, A SERVICE STATION, A STOCKROOM, A FACILITY
AT CAMP CLARK, /6/ AND VARIOUS CONCESSIONS.
THE EXCHANGE FACILITY AT THE MARINE RECORDS CENTER WHICH, AS NOTED
ABOVE, IS LOCATED SOME 80 MILES FROM WHITEMAN, CONSISTS OF A SMALL
RETAIL OUTLET. THIS OUTLET CARRIES NECESSITY ITEMS FOR THE 100 MARINES
WHO ARE ASSIGNED TO THAT LOCATION. THERE ARE ONLY TWO EXCHANGE
EMPLOYEES REGULARLY ASSIGNED TO THE CENTER. THE RECORD REVEALS THAT
WHILE THE AAFES OPERATIONS WITHIN THE CENTER ARE UNDER THE GENERAL
SUPERVISION OF THE GENERAL MANAGER, THE EMPLOYEES ARE, IN FACT,
SUPERVISED IMMEDIATELY BY AN ANNEX MANAGER WHO IS LOCATED THERE.
FURTHER, THE EMPLOYEES AT THE CENTER HAVE ESSENTIALLY THE SAME
CLASSIFICATIONS AS THOSE AT WHITEMAN.
THE RESIDENT EXCHANGE MANAGER AT WHITEMAN IS RESPONSIBLE PRIMARILY
FOR THE OPERATION OF THE WHITEMAN EXCHANGE ALTHOUGH, ON OCCASION,
MANAGEMENT OFFICIALS FROM THE RICHARDS-GEBAUR EXCHANGE ARE SENT TO
WHITEMAN TO ASSIST THE LATTER'S VARIOUS MANAGERS, TO CONDUCT PERSONNEL
TRAINING AND INSPECTIONS AND TO CONSULT WITH THE RESIDENT EXCHANGE
MANAGER. WITH RESPECT TO EMPLOYEES AT THE WHITEMAN EXCHANGE, THE
RESIDENT EXCHANGE MANAGER HAS AUTHORITY TO REVIEW THEIR PERFORMANCE
EVALUATIONS AND ANY DISCIPLINARY ACTIONS TAKEN BY THE VARIOUS LEVELS OF
SUPERVISION AT THAT FACILITY. IN THIS CONNECTION, EMPLOYEES MAY DISCUSS
GRIEVANCES ON AN INFORMAL BASIS WITH THEIR IMMEDIATE SUPERVISORS.
THEREAFTER, THE RESIDENT EXCHANGE MANAGER HAS THE AUTHORITY TO ADJUST
SUCH GRIEVANCES. /7/ THE RECORD REVEALS THAT THE RECOMMENDATIONS OF THE
RESIDENT EXCHANGE MANAGER AT WHITEMAN WITH RESPECT TO SUCH MATTERS AS
HIRING, PROMOTIONS, DISCHARGES, AND LEAVE ARE INVARIABLY APPROVED BY THE
GENERAL MANAGER AT RICHARDS-GEBAUR. FURTHERMORE, THE RECORD REFLECTS
THAT THERE HAS BEEN NO INTERCHANGE OF WHITEMAN EMPLOYEES WITH THE OTHER
EXCHANGES OF THE RICHARDS-GEBAUR CONSOLIDATED EXCHANGE IN THE PAST FIVE
YEARS AND THAT ONLY ONE TRANSFER HAS TAKEN PLACE.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN
THE PETITIONED FOR UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST WHICH IS DISTINGUISHABLE FROM THE EXCHANGE EMPLOYEES AT THE
MARINE RECORDS CENTER AND RICHARDS-GEBAUR AIR FORCE BASE. THUS, THE
RECORD REVEALS THAT, FOR ALL PRACTICAL PURPOSES, IT IS THE RESIDENT
MANAGER AT THE WHITEMAN EXCHANGE WHO EFFECTIVELY MAKES THE DAY-TO-DAY
MANAGEMENT DECISIONS AT THAT LOCATION. AND WHILE THE SAME PERSONNEL
POLICIES, WAGE RATES, FRINGE BENEFITS, AND OTHER WORKING CONDITIONS ARE
APPLIED GENERALLY TO ALL EMPLOYEES OF THE RICHARDS-GEBAUR CONSOLIDATED
EXCHANGE, IT IS LEFT FOR THE WHITEMAN EXCHANGE RESIDENT MANAGER TO
EFFECTUATE SUCH POLICIES FOR THE EMPLOYEES AT THAT PARTICULAR FACILITY.
FURTHERMORE, I FIND THAT IT IS OF PARTICULAR SIGNIFICANCE THAT THE
WHITEMAN EXCHANGE IS LOCATED APPROXIMATELY 70 MILES FROM THE
RICHARDS-GEBAUR EXCHANGE AND 80 MILES FROM THE MARINE RECORDS CENTER.
ACCORDINGLY, AND NOTING THAT NO LABOR ORGANIZATION IS SEEKING TO
REPRESENT THE CLAIMED EMPLOYEES ON A MORE COMPREHENSIVE BASIS, I FIND
THAT THE EMPLOYEES COVERED BY THE AFGE'S PETITION CONSTITUTE AN
APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. /8/
ELIGIBILITY ISSUES
QUESTIONS WERE RAISED AS TO WHETHER THE STOREROOM "SUPERVISOR," THE
FOOD ACTIVITIES "SUPERVISOR" AND THE "SUPERVISORY" SALES CLERK AT THE
WHITEMAN EXCHANGE ARE SUPERVISORY EMPLOYEES WITHIN THE MEANING OF THE
ORDER AND, THEREFORE, SHOULD BE EXCLUDED FROM ANY UNIT FOUND
APPROPRIATE. IN THIS CONNECTION, IT WAS CONTENDED THAT THESE EMPLOYEES
ADJUST EMPLOYEE GRIEVANCES, ASSIGN WORK, ADJUST CUSTOMER COMPLAINTS,
INTERVIEW PROSPECTIVE EMPLOYEES, ISSUE VERBAL REPRIMANDS AND ARE PAID AT
A HIGHER RATE THAN THOSE EMPLOYEES WHO PURPORTEDLY REPORT TO THEM. THE
RECORD, HOWEVER, INDICATES THAT THE INCUMBENTS IN THE ABOVE NAMED
POSITIONS GENERALLY WORK ALONGSIDE THE OTHER EMPLOYEES AND THAT THE
LATTER EMPLOYEES ARE FULLY TRAINED AND ARE ABLE TO PERFORM ALL OF THE
NECESSARY JOB FUNCTIONS WITHOUT IMMEDIATE GUIDANCE OR DIRECTION.
MOREOVER, THE RECORD DISCLOSES THAT ANY ALLEGED SUPERVISORY AUTHORITY
EXERCISED BY THE CLAIMED SUPERVISORS OCCURS ONLY DURING THE ABSENCE OF
THEIR RESPECTIVE MANAGERS WHICH IS INFREQUENT. UNDER THESE
CIRCUMSTANCES, I FIND THAT THE STOREROOM "SUPERVISOR," THE FOOD
ACTIVITIES "SUPERVISOR" AND THE "SUPERVISORY" SALES CLERK AT THE
WHITEMAN EXCHANGE ARE NOT SUPERVISORS WITHIN THE MEANING OF THE ORDER AS
IT IS CLEAR THAT ANY SUPERVISORY AUTHORITY WHICH THEY MAY EXERCISE
OCCURS ONLY ON AN INTERMITTENT AND INFREQUENT BASIS. THEREFORE, I WILL
INCLUDE EMPLOYEES IN THE ABOVE-NOTED CLASSIFICATIONS IN THE UNIT FOUND
APPROPRIATE. /9/
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491, AS AMENDED:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME EMPLOYEES, INCLUDING
OFF-DUTY MILITARY
PERSONNEL IN EITHER OF THE FOREGOING CATEGORIES, /10/ EMPLOYED BY THE
RICHARDS-GEBAUR
CONSOLIDATED EXCHANGE AND WORKING AT THE WHITEMAN AIR FORCE BASE
EXCHANGE, WHITEMAN AIR FORCE
BASE, KNOB NOSTER, MISSOURI; EXCLUDING EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT
OFFICIALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND THOSE WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE
THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE
TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2361.
DATED, WASHINGTON, D.C.
NOVEMBER 22, 1972
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ IN ADDITION TO THE GENERAL MANAGER, THE RICHARDS-GEBAUR EXCHANGE
HIERARCHY INCLUDES AN OPERATIONS MANAGER, A PERSONNEL MANAGER, AN
ACCOUNTING MANAGER, A MAIN STORE MANAGER, A STOCKROOM MANAGER, AN ANNEX
MANAGER, A SERVICE OPERATION MANAGER, AND A SERVICE STATION MANAGER.
/3/ THIS FIGURE INCLUDES THREE REGULAR PART-TIME EMPLOYEES AT
WHITEMAN WHO ARE HIRED FOR AN EXPECTED PERIOD OF MORE THAN 90 DAYS WITH
A REGULARLY SCHEDULED WORKWEEK OF AT LEAST 16 BUT NOT MORE THAN 35
HOURS.
/4/ THE "TOYLAND" IS A SEASONAL OPERATION OPERATING ONLY FROM
SEPTEMBER UNTIL IMMEDIATELY AFTER CHRISTMAS.
/5/ IN ADDITION TO THE RESIDENT EXCHANGE MANAGER, THE WHITEMAN
EXCHANGE HIERARCHY INCLUDES A MAIN STORE MANAGER, A BRANCH MANAGER, A
SERVICE STATION MANAGER, AND A FOOD ACTIVITIES MANAGER.
/6/ CAMP CLARK IS A SEASONAL OPERATION SERVING THE NATIONAL GUARD
WHILE IN TRAINING AND IS OPERATED FROM JUNE THROUGH AUGUST. IT EMPLOYS
ONLY EMPLOYEES CLASSIFIED AS TEMPORARY FULL-TIME WHO ARE TERMINATED AT
THE END OF EACH SUMMER.
/7/ WHEN GRIEVANCES REACH A FORMAL STAGE THEY MUST BE DIRECTED TO THE
GENERAL MANAGER AT RICHARDS-GEBAUR.
/8/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, ALTUS AIR FORCE BASE
EXCHANGE, A/SLMR NO. 179 AND ARMY AND AIR FORCE EXCHANGE SERVICE,
MACDILL AIR FORCE BASE CONSOLIDATED EXCHANGE, A/SLMR NO. 29.
/9/ THE EVIDENCE IS INSUFFICIENT TO ESTABLISH WHETHER OR NOT THE MAIN
STORE DEPARTMENT MANAGER AND THE SERVICE CLERKS AT THE WHITEMAN EXCHANGE
ARE SUPERVISORS WITHIN THE MEANING OF THE ORDER, OR WHETHER THE
MANAGER'S SECRETARY AT THE WHITEMAN EXCHANGE MEETS THE CRITERIA FOR A
"CONFIDENTIAL" EMPLOYEE SET FORTH IN VIRGINIA NATIONAL GUARD
HEADQUARTERS, 4TH BATTALION 111TH ARTILLERY, A/SLMR NO. 69.
ACCORDINGLY, I SHALL MAKE NO ELIGIBILITY FINDINGS WITH RESPECT TO THESE
EMPLOYEES.
/10/ THE RECORD REVEALS THAT THERE ARE OFF-DUTY MILITARY PERSONNEL
WORKING AS REGULAR PART-TIME EMPLOYEES AT THE WHITEMAN AIR FORCE BASE
EXCHANGE. AS I STATED IN ARMY AND AIR FORCE EXCHANGE SERVICE, FORT
HUACHUCA EXCHANGE SERVICE, FORT HUACHUCA, ARIZONA, A/SLMR NO. 167,
OFF-DUTY MILITARY PERSONNEL WHO OTHERWISE QUALITY FOR INCLUSION IN THE
UNIT FOUND APPROPRIATE AND WHO WORK A SUFFICIENT NUMBER OF HOURS TO BE
CLASSIFIED AS EITHER REGULAR FULL-TIME OR REGULAR PART-TIME MAY NOT BE
EXCLUDED FROM THE UNIT ON THE BASIS OF AGENCY REGULATIONS WHICH
AUTOMATICALLY CATEGORIZE SUCH PERSONNEL AS "TEMPORARY PART-TIME" OR
OTHERWISE AUTOMATICALLY EXCLUDE THEM FROM BARGAINING UNITS. I AM
ADMINISTRATIVELY ADVISED THAT THE AFGE HAS SUBMITTED TO THE AREA
ADMINISTRATOR IN EXCESS OF A 30 PERCENT SHOWING OF INTEREST IN THE UNIT
FOUND APPROPRIATE.
2 A/SLMR 218; P. 548; CASE NO. 72-RO-3050(25); NOVEMBER 22, 1972.
ARMY AND AIR FORCE EXCHANGE SERVICE,
VANDENBERG AIR FORCE BASE EXCHANGE,
VANDENBERG AIR FORCE BASE, CALIFORNIA
A/SLMR NO. 218
THE SUBJECT CASE INVOLVED A REPRESENTATION PETITION FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001(NFFE), SEEKING A
UNIT OF ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN AND
COMMISSION PAY PLAN EMPLOYEES, INCLUDING OFF-DUTY MILITARY PERSONNEL IN
EITHER OF THE FOREGOING CATEGORIES, EMPLOYED BY THE VANDENBERG AIR FORCE
BASE EXCHANGE, WHICH IS A COMPONENT OF THE GOLDEN GATE EXCHANGE REGION.
THE ACTIVITY WAS IN AGREEMENT AS TO THE APPROPRIATENESS OF THE CLAIMED
UNIT. A QUESTION WAS RAISED AS TO WHETHER EMPLOYEES CLASSIFIED AS
TEMPORARY FULL-TIME, TEMPORARY PART-TIME, CASUAL AND ON-CALL SHOULD BE
INCLUDED WITHIN THE UNIT.
IN ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
PETITIONED FOR UNIT WAS APPROPRIATE. HE NOTED THAT THERE WAS NO
INTERCHANGE OF EMPLOYEES BETWEEN ANY OF THE COMPONENTS OF THE GOLDEN
GATE EXCHANGE REGION, THAT THE ACTIVITY WAS SEPARATED GEOGRAPHICALLY
FROM OTHER EXCHANGES, AND THAT THE ACTIVITY'S EMPLOYEES WERE ALL SUBJECT
TO THE SAME GENERAL WORKING CONDITIONS AND OVERALL SUPERVISION, WAGE
SURVEY SYSTEM, GRIEVANCE PROCEDURES, LEAVE POLICIES, DISCIPLINARY
POLICIES, PROMOTION POLICIES, AND BENEFITS. HE ALSO NOTED THAT THE ONE
REGULAR PART-TIME EMPLOYEE ASSIGNED TO CAMBRIA AIR FORCE STATION SHARED
A COMMUNITY OF INTEREST WITH THE EMPLOYEES IN THE UNIT SOUGHT AND
DIRECTED THAT THIS EMPLOYEE BE INCLUDED IN THE UNIT. HE NOTED FURTHER
THAT OFF-DUTY MILITARY PERSONNEL WHO WORKED THE REQUISITE NUMBER OF
HOURS SO AS TO BE INCLUDED IN THE CATEGORIES REGULAR FULL-TIME AND
REGULAR PART-TIME SHOULD BE INCLUDED IN THE UNIT. IN THE ASSISTANT
SECRETARY'S VIEW, SUCH AN ACTIVITY-WIDE UNIT WOULD PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE DIRECTED
THAT AN ELECTION BE HELD IN THAT UNIT. AS THERE WERE NO TEMPORARY
FULL-TIME, TEMPORARY PART-TIME, CASUAL OR ON-CALL EMPLOYEES PRESENTLY
EMPLOYED AT THE ACTIVITY, THE ASSISTANT SECRETARY DID NOT MAKE ANY
FINDINGS AS TO THE ELIGIBILITY OF EMPLOYEES IN SUCH CLASSIFICATIONS.
ARMY AND AIR FORCE EXCHANGE SERVICE,
VANDENBERG AIR FORCE BASE EXCHANGE,
VANDENBERG AIR FORCE BASE, CALIFORNIA /1/
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1001
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER J. J. ANTONITZ.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
1001, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL REGULAR
FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN (H.P.P.) AND COMMISSION
OF THE PAY PLAN (C.P.P.) EMPLOYEES, INCLUDING OFF-DUTY MILITARY
PERSONNEL IN EITHER OF THE FOREGOING CATEGORIES, EMPLOYED BY THE
VANDENBERG AIR FORCE BASE EXCHANGE AT VANDENBERG AIR FORCE BASE,
CALIFORNIA, AND CAMBRIA AIR FORCE STATION, EXCLUDING TEMPORARY FULL-TIME
AND TEMPORARY PART-TIME EMPLOYEES, CASUAL AND ON-CALL EMPLOYEES,
SUPERVISORY AND MANAGERIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL
EMPLOYEES AND GUARDS. /2/ THE ACTIVITY ESSENTIALLY AGREES THAT THE UNIT
SOUGHT, AS AMENDED, IS APPROPRIATE. /3/ A QUESTION WAS RAISED AS TO
WHETHER EMPLOYEES CLASSIFIED AS TEMPORARY FULL-TIME TEMPORARY PART-TIME,
CASUAL AND ON-CALL SHOULD BE INCLUDED IN THE CLAIMED UNIT.
THE UNIT
THE ACTIVITY, VANDENBERG AIR FORCE BASE EXCHANGE, IS AN
ADMINISTRATIVE SUBDIVISION, ALONG WITH 23 OTHER BASE EXCHANGES, OF THE
GOLDEN GATE EXCHANGE REGION. IT EMPLOYS APPROXIMATELY 247 EMPLOYEES AT
THE VANDENBERG LOCATION. ALTHOUGH A PART OF THE GOLDEN GATE EXCHANGE
REGION, THE ACTIVITY HAS NO ADMINISTRATIVE OR LOGISTICAL CONNECTION WITH
ANY OF THE OTHER EXCHANGES WITHIN THE REGION. ORGANIZATIONALLY ATTACHED
TO THE ACTIVITY IS THE CAMBRIA AIR FORCE STATION EXCHANGE LOCATED ABOUT
90 MILES NORTH OF VANDENBERG, WHICH EMPLOYS ONE REGULAR PART-TIME
CIVILIAN EMPLOYEE.
THE MISSION OF THE ACTIVITY IS TO PROVIDE QUALITY MERCHANDISE AND
SERVICES AT REASONABLE PRICES TO MEMBERS OF THE MILITARY AND AUTHORIZED
PATRONS ON THE PREMISES OF VANDENBERG AIR FORCE BASE. A GENERAL MANAGER
IS IN OVERALL CHARGE OF THE FOLLOWING FIVE PRIMARY FUNCTIONS PERFORMED
BY THE EXCHANGE: RETAIL OPERATIONS, FOOD OPERATIONS, ACCOUNTING,
PERSONNEL AND SERVICE OPERATIONS. REPORTING TO THE GENERAL MANAGER IS
AN OPERATING MANAGER FOR EACH SUBDIVISION. IN ADDITION, THE GENERAL
MANAGER IS RESPONSIBLE DIRECTLY FOR THE MAINTENANCE SECTION WHICH HAS AS
ITS FUNCTION THE REPAIR AND MAINTENANCE SECTION WHICH HAS AS ITS
FUNCTION THE REPAIR AND MAINTENANCE OF THE EXCHANGE FACILITIES. /4/
UNDER THE VARIOUS SUBDIVISIONS ARE APPROXIMATELY 15 BRANCHES DEALING IN
RETAIL MERCHANDISING, FOOD DISPENSING, AND SERVICE RELATED OPERATIONS
SUCH AS DISPENSING GASOLINE AND MAKING MECHANICAL REPAIRS ON
AUTOMOBILES. IN ORDER TO CARRY OUT ITS MISSION, THE ACTIVITY OPERATES A
MAIN RETAIL STORE AND ANNEXES, A MAIN CAFETERIA, SNACK BARS, A "RUN IN
CHEF DRIVE-IN," AN ICE CREAM SHOP, BARBER SHOPS, A BEAUTY SHOP, AND
SERVICE STATIONS. EACH OF THESE FACILITIES IS HEADED BY A MANAGER WHO
REPORTS DIRECTLY TO THE GENERAL MANAGER. AMONG THE EMPLOYEES INCLUDED
IN THE CLAIMED UNIT ARE RETAIL SALES CLERKS, DOOR-CHECKERS, CUSTOMER
SERVICE CLERKS, RETAIL DISPLAYERS, STOCK HANDLERS, PORTERS, RETAIL AND
FOOD CASHIER-CHECKERS, COOKS, FOOD SERVICE HELPERS, MOTOR VEHICLES
OPERATORS, COUNTER AND SNACK STAND ATTENDANTS, BARBERS, BEAUTICIANS, AND
SERVICE STATION ATTENDANTS.
WITH RESPECT TO THE DUTIES OF THE EMPLOYEES IN THE UNIT SOUGHT, THE
EVIDENCE REVEALS THAT RETAIL OPERATION EMPLOYEES PERFORM SALES AND OTHER
RELATED FUNCTIONS; FOOD SERVICE OPERATION EMPLOYEES ARE ENGAGED IN THE
PREPARATION AND SALE OF FOODS AND BEVERAGES; AND SERVICE OPERATION
EMPLOYEES DISPENSE GASOLINE AND OIL AND PERFORM MINOR VEHICLE REPAIRS
AND TUNE-UPS. THE RECORD REVEALS THAT THESE EMPLOYEES ARE ALL SUBJECT
TO THE SAME GENERAL WORKING CONDITIONS AND OVERALL SUPERVISION, WAGE
SURVEY SYSTEM, GRIEVANCE PROCEDURES, LEAVE POLICIES, DISCIPLINARY
POLICIES, AND PROMOTION POLICIES. AVAILABILITY OF FRINGE BENEFITS IS
GOVERNED UNIFORMLY BY AN EMPLOYEE'S CLASSIFICATION CATEGORY (E.G.,
REGULAR FULL-TIME, REGULAR PART-TIME, TEMPORARY PART-TIME, OR ON-CALL).
THE SINGLE CIVILIAN EMPLOYEE LOCATED AT CAMBRIA AIR FORCE STATION
EXCHANGE SOUGHT TO BE INCLUDED IN THE CLAIMED UNIT IS EMPLOYED ON A
REGULAR PART-TIME BASIS. /5/ IN THIS REGARD, THE RECORD REVEALS THAT
THE CAMBRIA EMPLOYEE WAS HIRED AT VANDENBERG, ALL OF HER PERSONNEL
PAPERS ARE KEPT AT VANDENBERG, AND IF DISCIPLINE WERE REQUIRED IT WOULD
BE HANDLED THROUGH PROCEDURES EXISTING AT VANDENBERG.
UNDER ALL THE CIRCUMSTANCES, AND NOTING THE ACTIVITY-WIDE NATURE OF
THE UNIT SOUGHT, THE GEOGRAPHICAL SEPARATION BETWEEN THE VANDENBERG AIR
FORCE BASE EXCHANGE AND OTHER EXCHANGES IN THE GOLDEN GATE EXCHANGE
REGION AND THE LACK OF INTERCHANGE OF EMPLOYEES AMONG THE VARIOUS
COMPONENTS OF THE GOLDEN GATE REGION, I FIND THAT THE CLAIMED EMPLOYEES
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND, THEREFORE,
CONSTITUTE AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
/6/ MOREOVER, IN MY VIEW, SUCH A COMPREHENSIVE UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /7/
EMPLOYEE ELIGIBILITY
THE RECORD REVEALS THAT THE ACTIVITY EMPLOYS APPROXIMATELY 24
OFF-DUTY MILITARY PERSONNEL WHO BECAUSE OF AGENCY REGULATIONS ARE
CLASSIFIED AS "TEMPORARY PART-TIME." /8/ THESE EMPLOYEES PERFORM
SUBSTANTIALLY THE SAME WORK, ARE PAID ACCORDING TO THE SAME WAGE SCALE
AND ARE SUBJECT TO THE SAME WORKING CONDITIONS AS CIVILIAN EMPLOYEES OF
THE ACTIVITY. UNDER THESE CIRCUMSTANCES, I FIND THAT IF SUCH OFF-DUTY
MILITARY PERSONNEL HAVE BEEN EMPLOYED FOR A SUFFICIENT NUMBER OF HOURS
TO ACQUIRE REGULAR FULLTIME OR REGULAR PART-TIME EMPLOYEE STATUS, THEY
SHOULD BE CONSIDERED AS SUCH FOR THE PURPOSE OF INCLUSION IN THE
APPROPRIATE UNIT. /9/
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491, AS AMENDED:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN (H.P.P.)
AND COMMISSION PAY
PLAN (C.P.P.) EMPLOYEES, INCLUDING OFF-DUTY MILITARY PERSONNEL IN
EITHER OF THE FOREGOING
CATEGORIES, EMPLOYED AT THE VANDENBERG AIR FORCE BASE EXCHANGE,
VANDENBERG AIR FORCE BASE, AND
THE CAMBRIA AIR FORCE STATION EXCHANGE, CAMBRIA AIR FORCE STATION,
EXCLUDING EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER. /10/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NO LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001.
DATED, WASHINGTON, D.C.
NOVEMBER 22, 1972
/1/ THE NAME OF THE ACTIVITY APPEARS AS CORRECTED AT THE HEARING.
/2/ THE UNIT DESCRIPTION WAS AMENDED AT THE HEARING.
/3/ AT THE CLOSE OF THE HEARING, THE NFFE REQUESTED THAT A CONSENT
ELECTION AGREEMENT MEETING BE DIRECTED. IN VIEW OF THE DISPOSITION OF
THIS CASE, I FIND IT UNNECESSARY TO RULE ON THE NFFE'S MOTION. SEE ALSO
THE DISCUSSION BELOW ON EMPLOYEE ELIGIBILITY.
/4/ THE MAINTENANCE SECTION CONSISTS OF TWO EMPLOYEES. ANY
MAINTENANCE WORK WHICH CANNOT BE PERFORMED BY THESE INDIVIDUALS IS
SUBCONTRACTED TO OUTSIDE CONTRACTORS BY THE GENERAL MANAGER.
/5/ THE RECORD SHOWS THAT THE OTHER CAMBRIA AIR FORCE STATION
EXCHANGE EMPLOYEES ARE FULL-TIME MILITARY PERSONNEL PERFORMING MILITARY
DUTY.
/6/ AS TO THE ONE CIVILIAN EMPLOYEE LOCATED AT CAMBRIA, THE RECORD
SHOWS THAT THIS REGULAR PART-TIME EMPLOYEE SHARES THE SAME OVERALL
SUPERVISION, WAGE SURVEY SYSTEM, GRIEVANCE PROCEDURE, LEAVE POLICIES AND
DISCIPLINARY POLICIES AS OTHER EMPLOYEES IN THE UNIT FOUND APPROPRIATE,
AND THAT IF NOT INCLUDED IN SUCH UNIT WOULD CONSTITUTE, IN EFFECT, AN
INAPPROPRIATE SINGLE EMPLOYEE UNIT. CF. DCA FIELD OFFICE, FORT
MONMOUTH, NEW JERSEY, FLRC NO. 72A-5. UNDER THESE CIRCUMSTANCES, I
FIND THE REGULAR PART-TIME EMPLOYEE LOCATED AT CAMBRIA AIR FORCE STATION
EXCHANGE SHOULD BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
/7/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, MACDILL AIR FORCE BASE
CONSOLIDATED EXCHANGE, A/SLMR NO. 29.
/8/ AGENCY REGULATION, AR 60-21/AFR 147-15, DATED AUGUST 27, 1970,
PROVIDES THAT TEMPORARY PART-TIME EMPLOYEES WHO WORK MORE THAN 90 DAYS
ARE HOURS."
/9/ I HAVE STATED PREVIOUSLY THAT OFF-DUTY MILITARY PERSONNEL, WHO
WORK A SUFFICIENT NUMBER OF HOURS TO BE CLASSIFIED AS EITHER REGULAR
FULL-TIME OR REGULAR PART-TIME, MAY NOT BE EXCLUDED FROM THE UNIT ON THE
BASIS OF AGENCY REGULATIONS WHICH CATEGORIZE SUCH PERSONNEL AS
"TEMPORARY PARTTIME" EMPLOYEES REGARDLESS OF THE TIME THEY WORK OR
OTHERWISE AUTOMATICALLY EXCLUDE THEM FROM BARGAINING UNITS. SEE ARMY
AND AIR FORCE EXCHANGE SERVICE, FORT HUACHUCA EXCHANGE SERVICE, FORT
HUACHUCA, ARIZONA, A/SLMR NO. 167.
/10/ INASMUCH AS THE RECORD ESTABLISHES THAT THERE ARE NO TEMPORARY
FULL- TIME, TEMPORARY PART-TIME, CASUAL OR ON-CALL EMPLOYEES PRESENTLY
EMPLOYED AT THE ACTIVITY, I SHALL NOT AT THIS TIME MAKE ANY FINDINGS OF
FACT WITH RESPECT TO WHETHER THEY PROPERLY WOULD COME WITHIN THE
EXCLUDED CATEGORY OF EMPLOYEES BASED ON THEIR RESPECTIVE JOB STATUS AT
THE ACTIVITY. CF. ALASKAN EXCHANGE SYSTEM, BASE EXCHANGE, FORT GREELY,
ALASKA, A/SLMR NO. 33; ARMY AND AIR FORCE EXCHANGE SERVICE, GOLDEN GATE
EXCHANGE REGION, STORAGE AND DISTRIBUTION BRANCH, NORTON AIR FORCE BASE,
CALIFORNIA, A/SLMR NO. 190.
2 A/SLMR 217; P. 546; CASE NO. 40-3534(CU 25); OCTOBER 31, 1972.
DEPARTMENT OF TREASURY,
DIVISION OF DISBURSEMENT,
BIRMINGHAM, ALABAMA
A/SLMR NO. 217
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT FILED BY THE
DEPARTMENT OF TREASURY, DIVISION OF DISBURSEMENT, BIRMINGHAM, ALABAMA,
SEEKING CLARIFICATION OF THE STATUS OF TWO EMPLOYEES. THE UNIT INVOLVED
IS REPRESENTED CURRENTLY BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2890, AFL-CIO(AFGE). CONTRARY TO THE VIEW OF THE
ACTIVITY, THE AFGE CONTENDED THAT EMPLOYEES CLASSIFIED AS EXECUTIVE
SECRETARY TO THE DIRECTOR AND THE EXECUTIVE SECRETARY TO THE ASSISTANT
DIRECTOR SHOULD BE INCLUDED IN THE CERTIFIED UNIT.
THE ASSISTANT SECRETARY FOUND THE EXECUTIVE SECRETARY TO THE DIRECTOR
TO BE A CONFIDENTIAL EMPLOYEE. IN THIS RESPECT, HE NOTED THAT THE
INCUMBENT IN THIS POSITION, AMONG OTHER THINGS, SERVES AS THE PERSONAL
SECRETARY TO THE DIRECTOR WHO IS FULLY RESPONSIBLE FOR ALL LABOR
RELATIONS MATTERS AT THE ACTIVITY. ADDITIONALLY, THIS EMPLOYEE ATTENDS
AND TAKES MINUTES OF TOP-LEVEL STAFF MEETINGS WHERE LABOR RELATIONS
MATTERS ARE DISCUSSED, PREPARES RESEARCH FOR THE MANAGEMENT NEGOTIATING
TEAM DURING CONTRACT NEGOTIATIONS, TYPES DISCIPLINARY ACTION CASES AND
GRIEVANCES AS WELL AS EMPLOYEE APPRAISALS PREPARED BY BRANCH CHIEFS, AND
HAS ACCESS TO THE FILES WHERE THESE MATERIALS ARE MAINTAINED. IN THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY CLARIFIED THE CERTIFIED UNIT TO
EXCLUDE THE EXECUTIVE SECRETARY TO THE DIRECTOR.
WITH RESPECT TO THE EXECUTIVE SECRETARY TO THE ASSISTANT DIRECTOR,
THE ASSISTANT SECRETARY CONCLUDED THAT IT WOULD NOT EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER TO CLARIFY THE CERTIFIED UNIT IN THIS
REGARD WHERE, AS HERE, THE EVIDENCE ESTABLISHED THAT NO EMPLOYEE WAS
FILLING SUCH CLASSIFICATION AT THE PRESENT TIME. ACCORDINGLY, HE
DISMISSED THE PETITION INSOFAR AS IT SOUGHT TO EXCLUDE THE EXECUTIVE
SECRETARY TO THE ASSISTANT DIRECTOR.
DEPARTMENT OF TREASURY,
DIVISION OF DISBURSEMENT,
BIRMINGHAM, ALABAMA
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2890, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER GEORGE M.
HILDRETH. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, DEPARTMENT OF TREASURY, DIVISION OF DISBURSEMENT,
BIRMINGHAM, ALABAMA, HEREIN CALLED THE ACTIVITY, FILED THE PETITION FOR
CLARIFICATION OF UNIT IN THE SUBJECT CASE SEEKING TO CLARIFY AN EXISTING
CERTIFIED UNIT BY EXCLUDING CERTAIN EMPLOYEE JOB CLASSIFICATIONS. MORE
SPECIFICALLY, THE ACTIVITY CONTENDS THAT EMPLOYEES CLASSIFIED AS
EXECUTIVE SECRETARY TO THE DIRECTOR AND EXECUTIVE SECRETARY TO THE
ASSISTANT DIRECTOR ARE CONFIDENTIAL EMPLOYEES AND SHOULD BE EXCLUDED
FROM THE UNIT. THE CERTIFICATION INVOLVED HEREIN WAS ISSUED BY THE AREA
ADMINISTRATOR ON MARCH 10, 1971, IN CASE NO. 40-2642(RO), DESIGNATING
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2890, AFL-CIO, HEREIN
CALLED AFGE, AS THE EXCLUSIVE REPRESENTATIVE IN THE FOLLOWING UNIT:
ALL WAGE BOARD AND GENERAL SCHEDULE NON-SUPERVISORY EMPLOYEES AT U.S.
TREASURY, DIVISION OF
DISBURSEMENT, BIRMINGHAM, ALABAMA, EXCLUDING ALL MANAGEMENT
OFFICIALS, SUPERVISORS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, PROFESSIONAL
EMPLOYEES, TEMPORARY/INTERMITTENT EMPLOYEES, AND GUARDS.
THE AFGE CONTENDS THAT THERE IS NO EXPRESS BASIS IN THE ORDER WHICH
WOULD WARRANT THE EXCLUSION OF THE EMPLOYEES IN THE TWO DISPUTED
CATEGORIES. /1/
THE EVIDENCE ESTABLISHES THAT THE DIRECTOR IS CHARGED WITH MANAGING
AND DIRECTING THE ADMINISTRATIVE AND TECHNICAL OPERATIONS OF THE
ACTIVITY, WHICH PROVIDES FULL DISBURSING SERVICES FOR APPROXIMATELY 133
FEDERAL AGENCIES. AMONG OTHER DUTIES, THE DIRECTOR HAS AUTHORITY WITH
RESPECT TO ALL LABOR RELATIONS MATTERS AT THE ACTIVITY. IN THIS REGARD,
HE IS RESPONSIBLE FOR THE IMPLEMENTATION OF EXECUTIVE ORDER 11491, AS
AMENDED, INCLUDING THE NEGOTIATION AND APPLICATION OF ANY NEGOTIATED
AGREEMENTS. THE ASSISTANT DIRECTOR SHARES THE SAME RESPONSIBILITIES
JOINTLY WITH THE DIRECTOR AND IN THE LATTER'S ABSENCE ASSUMES FULL
RESPONSIBILITY. IN THIS CONNECTION, THE RECORD REVEALS THAT DURING
RECENT CONTRACT NEGOTIATIONS, THE ASSISTANT DIRECTOR SERVED AS THE CHIEF
NEGOTIATOR FOR THE MANAGEMENT NEGOTIATING TEAM.
THE EXECUTIVE SECRETARY TO THE DIRECTOR FUNCTIONS AS THE DIRECTOR'S
PERSONAL SECRETARY. THE EVIDENCE ESTABLISHES THAT IN ADDITION TO HER
NORMAL CLERICAL FUNCTIONS, SUCH AS TAKING DICTATION, TYPING, MAINTAINING
THE DIRECTOR'S AND ASSISTANT DIRECTOR'S FILES, AND RECEIVING VISITORS,
THE EXECUTIVE SECRETARY TO THE DIRECTOR ATTENDS AND TAKES MINUTES OF
TOP-LEVEL STAFF MEETINGS WHERE LABOR RELATIONS MATTERS ARE DISCUSSED.
FURTHER, DURING THE RECENT CONTRACT NEGOTIATIONS, THE EXECUTIVE
SECRETARY PREPARED RESEARCH FOR THE MANAGEMENT NEGOTIATING TEAM TO
ENSURE COMPLIANCE WITH VARIOUS GUIDELINES OUTLINED IN THE FEDERAL
PERSONNEL MANUAL AND THE TREASURY DEPARTMENT MANUAL, TYPED ACTIVITY
COUNTER-PROPOSALS, AND WAS PRESENT WHEN THE ASSISTANT DIRECTOR DISCUSSED
NEGOTIATION DEVELOPMENTS WITH THE DIRECTOR. THE RECORD ALSO REVEALS
THAT THE EXECUTIVE SECRETARY IS INVOLVED IN THE TYPING OF DISCIPLINARY
ACTION CASES AND GRIEVANCES, AS WELL AS EMPLOYEE APPRAISALS PREPARED BY
BRANCH CHIEFS AND, FURTHER, HAS ACCESS TO THE FILES WHERE THESE
MATERIALS ARE MAINTAINED. /2/
IN MY VIEW, THE FOREGOING EVIDENCE CLEARLY ESTABLISHES THAT THE
EXECUTIVE SECRETARY TO THE DIRECTOR ACTS IN A CONFIDENTIAL CAPACITY WITH
RESPECT TO AN OFFICIAL WHO FORMULATES OR EFFECTUATES GENERAL LABOR
RELATIONS POLICIES AND HAS ACCESS TO CONFIDENTIAL LABOR RELATIONS
MATERIALS. AS I HAVE FOUND PREVIOUSLY THAT IT WOULD EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER IF EMPLOYEES, SUCH AS THE EXECUTIVE
SECRETARY TO THE DIRECTOR, WHO ASSIST AND ACT IN A CONFIDENTIAL CAPACITY
TO PERSONS WHO FORMULATE AND EFFECTUATE MANAGEMENT POLICIES IN THE FIELD
OF LABOR RELATIONS, WERE EXCLUDED FROM EXCLUSIVE BARGAINING UNITS, /3/ I
SHALL CLARIFY THE EXISTING CERTIFIED UNIT TO EXCLUDE THE EXECUTIVE
SECRETARY TO THE DIRECTOR.
AS NOTED ABOVE, BY ITS PETITION IN THIS MATTER, THE ACTIVITY ALSO
SEEKS TO EXCLUDE THE EXECUTIVE SECRETARY TO THE ASSISTANT DIRECTOR FROM
THE CERTIFIED UNIT BASED ON THE CONTENTION THAT AN EMPLOYEE IN THIS JOB
CLASSIFICATION IS A CONFIDENTIAL EMPLOYEE. THE RECORD DISCLOSES THAT,
AT THE PRESENT TIME, THERE IS NO EMPLOYEE IN THIS CLASSIFICATION
EMPLOYED BY THE ACTIVITY AND THAT THE EXECUTIVE SECRETARY TO THE
DIRECTOR CURRENTLY IS FUNCTIONING IN A DUAL CAPACITY. FURTHER, IT
APPEARS THAT UNDER THE PRESENT CIRCUMSTANCES THE EMPLOYMENT OF AN
EXECUTIVE SECRETARY TO THE ASSISTANT DIRECTOR IN THE FUTURE IS
SPECULATIVE. AS I HAVE CONCLUDED PREVIOUSLY IN SIMILAR CIRCUMSTANCES,
IT WOULD NOT EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER TO
CLARIFY A UNIT WHERE, AS HERE, THE JOB CLASSIFICATION SOUGHT TO BE
EXCLUDED FROM THE CERTIFIED UNIT IS NOT, IN FACT, FILLED BY AN EMPLOYEE.
/4/ ACCORDINGLY, THE SUBJECT PETITION, INSOFAR AS IT SEEKS TO EXCLUDE
THE JOB CLASSIFICATION EXECUTIVE SECRETARY TO THE ASSISTANT DIRECTOR
FROM THE CERTIFIED UNIT, IS HEREBY DISMISSED.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED ON MARCH 10, 1971, TO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2890, AFL-CIO, AT THE
DEPARTMENT OF TREASURY, DIVISION OF DISBURSEMENT, BIRMINGHAM, ALABAMA,
BE, AND IT HEREBY IS, CLARIFIED BY EXCLUDING FROM THE SAID UNIT THE
EMPLOYEE JOB CLASSIFICATION EXECUTIVE SECRETARY TO THE DIRECTOR.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1972
/1/ THE AFGE CONCEDES, HOWEVER, THAT AN INCUMBENT IN THESE POSITIONS
WOULD BE PROHIBITED UNDER SECTION 1(B) OF THE ORDER FROM PARTICIPATING
IN THE MANAGEMENT OF A LABOR ORGANIZATION BASED ON A CONFLICT OR
APPARENT CONFLICT OF INTEREST.
/2/ IN THIS RESPECT, IT IS NOTED THAT SHE HAS THE COMBINATION TO THE
SAFE WHERE THE DIRECTOR AND ASSISTANT DIRECTOR FILE ALL MATERIAL DEEMED
"CONFIDENTIAL".
/3/ SEE THE DEPARTMENT OF THE TREASURY, U.S. SAVINGS BONDS DIVISION,
A/SLMR NO. 185; PORTLAND AREA OFFICE, DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, A/SLMR NO. 111; AND VIRGINIA NATIONAL GUARD HEADQUARTERS,
4TH BATTALION, 111TH ARTILLERY, A/SLMR NO. 69.
/4/ SEE ARMY AND AIR FORCE EXCHANGE SERVICE, GOLDEN GATE EXCHANGE
REGION, STORAGE AND DISTRIBUTION BRANCH, NORTON AIR FORCE BASE,
CALIFORNIA, A/SLMR NO. 190.
2 A/SLMR 216; P. 540; CASE NOS. 32-2003, 32-2235, 32-2393, 32-2432,
OCTOBER 31, 1972.
UNITED STATES ARMY ELECTRONICS COMMAND,
FORT MONMOUTH, NEW JERSEY
A/SLMR NO. 216
THIS CASE AROSE AS A RESULT OF THE FILING OF FOUR REPRESENTATION
PETITIONS BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476(NFFE).
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1904, AFL-CIO(AFGE)
INTERVENED IN EACH OF THE PETITIONED FOR UNITS. NFFE SOUGHT THE
FOLLOWING UNITS:
1. ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN PROCUREMENT AND
PRODUCTION
DIRECTORATE AT FORT MONMOUTH, NEW JERSEY.
2. ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE ELECTRONICS
WARFARE LABORATORY,
UNITED STATES ARMY ELECTRONICS COMMAND (ECOM) AT FORT MONMOUTH, NEW
JERSEY.
3. ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DIRECTORATE
OF RESEARCH,
DEVELOPMENT AND ENGINEERING AND ECOM LABORATORIES PHYSICALLY LOCATED
AT FORT MONMOUTH AND
VICINITY.
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE PRODUCT
ASSURANCE DIRECTORATE
PHYSICALLY LOCATED IN FORT MONMOUTH AND VICINITY.
IN THE CASE INVOLVING THE PETITION COVERING EMPLOYEES IN THE PRODUCT
ASSURANCE DIRECTORATE, NFFE FILED A CHALLENGE TO THE VALIDITY OF AFGE'S
SHOWING OF INTEREST IN SUPPORT OF THE LATTER'S INTERVENTION, ALLEGING
THAT SIGNATURES SUPPORTING AFGE'S INTERVENTION WERE NOT AUTHENTIC.
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE ASSISTANT SECRETARY
FOUND THAT STRICT ADHERENCE TO A TEN-DAY CHALLENGE PERIOD WOULD NOT BE
CONSISTENT WITH THE PROPER EFFECTUATION OF THE ORDER IN VIEW OF THE
NATURE OF THE CHALLENGE INVOLVED. BASED ON THE QUESTIONABLE
AUTHENTICITY OF THE SIGNATURES SUPPORTING AFGE'S SHOWING OF INTEREST AS
REVEALED BY THE REGIONAL ADMINISTRATOR'S INVESTIGATION, THE ASSISTANT
SECRETARY CONCLUDED THAT REVOCATION OF THE APPROVAL OF AFGE'S
INTERVENTION WAS WARRANTED.
THE ASSISTANT SECRETARY FOUND THE UNITS PETITIONED FOR BY NFFE TO BE
INAPPROPRIATE. IN REACHING THIS DETERMINATION, THE ASSISTANT SECRETARY
NOTED THAT MANY EMPLOYEES OF THE ACTIVITY SHARED SIMILAR SKILLS AND
PERFORMED SIMILAR OR RELATED JOB FUNCTIONS. ALSO, THE AREA OF
CONSIDERATION FOR PROMOTION WAS ACTIVITY-WIDE, ALL EMPLOYEES OPERATED
UNDER THE SAME PROMOTION PROCEDURE, AND THERE HAVE BEEN SEVERAL
INSTANCES OF TRANSFER BETWEEN EMPLOYEES IN THE UNITS PETITIONED FOR AND
OTHER ACTIVITY EMPLOYEES. ADDITIONALLY, THE ASSISTANT SECRETARY NOTED
THAT THE ACTIVITY UTILIZED AN INTEGRATED WORK PROCESS INVOLVING
CONSIDERABLE CONTACT AND COORDINATION BETWEEN AND AMONG ALL EMPLOYEES OF
THE ACTIVITY'S DIRECTORATES AND OFFICES.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
EMPLOYEES IN EACH OF THE PETITIONED FOR UNITS DID NOT POSSESS A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND APART FROM OTHER
ACTIVITY EMPLOYEES. MOREOVER, HE NOTED THAT THE ESTABLISHMENT OF THE
PETITIONED FOR UNITS WOULD NOT PROMOTE EFFECTIVE DEALINGS OR CONTRIBUTE
TO THE EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE ORDERED THAT
THE PETITIONS BE DISMISSED.
UNITED STATES ARMY ELECTRONICS COMMAND,
FORT MONMOUTH, NEW JERSEY
ACTIVITY
AND
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 476
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES,
LOCAL 1904, AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER CHARLES L. SMITH.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE SUBJECT CASES, INCLUDING A BRIEF FILED
BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476, HEREIN
CALLED NFFE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 32-2003, THE NFFE SEEKS AN ELECTION IN THE FOLLOWING
UNIT:
ALL NONSUPERVISORY EMPLOYEES, INCLUDING PROFESSIONAL EMPLOYEES, IN
PROCUREMENT AND
PRODUCTION DIRECTORATE AT FORT MONMOUTH, NEW JERSEY, AND ALSO
INCLUDING STUDENT TRAINEES,
PART-TIME AND TEMPORARY EMPLOYEES, AND EXCLUDING SUPERVISORS,
MANAGEMENT OFFICIALS, GUARDS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY AND ARMY
MATERIEL COMMAND (AMC) INTERNS.
IN CASE NO. 32-2235, THE NFFE SEEKS AN ELECTION IN THE FOLLOWING
UNIT:
ALL NONSUPERVISORY EMPLOYEES, INCLUDING PROFESSIONAL EMPLOYEES, OF
THE ELECTRONICS WARFARE
LABORATORY, UNITED STATES ARMY ELECTRONICS COMMAND (ECOM), AT FORT
MONMOUTH, NEW JERSEY,
INCLUDING STUDENT TRAINEES, PART-TIME AND TEMPORARY EMPLOYEES, AND
EXCLUDING MANAGEMENT
OFFICIALS, SUPERVISORS, GUARDS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY AND AMC INTERNS.
IN CASE NO. 32-2393, THE NFFE SEEKS AN ELECTION IN THE FOLLOWING
UNIT:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DIRECTORATE OF
RESEARCH, DEVELOPMENT,
AND ENGINEERING AND ECOM LABORATORIES PHYSICALLY LOCATED IN FORT
MONMOUTH AND VICINITY,
INCLUDING STUDENT TRAINEES, PART-TIME AND TEMPORARY EMPLOYEES, AND
EXCLUDING MANAGEMENT
OFFICIALS, SUPERVISORS, GUARDS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, EMPLOYEES AT FORT MONMOUTH IN THE
ATMOSPHERIC SCIENCES LABORATORY
AND RESEARCH AND DEVELOPMENT TECHNICAL SUPPORT ACTIVITY, AND AMC
INTERNS.
IN CASE NO. 32-2432, THE NFFE SEEKS AN ELECTION IN THE FOLLOWING
UNIT:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE PRODUCT
ASSURANCE DIRECTORAGE
PHYSICALLY LOCATED IN FORT MONMOUTH AND VICINITY, INCLUDING STUDENT
TRAINEES, PART-TIME AND
TEMPORARY EMPLOYEES, AND EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS,
GUARDS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, AND AMC INTERNS.
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1904, AFL-CIO,
HEREIN CALLED AFGE, INTERVENED IN EACH OF THE ABOVE-NOTED CASES. /1/
THE ACTIVITY CONTENDS THAT EACH OF THE PETITIONED FOR UNITS IS
INAPPROPRIATE BECAUSE ALL OF THE ELEMENTS OF THE UNITED STATES ARMY
ELECTRONICS COMMAND (ECOM) AT FORT MONMOUTH ARE INVOLVED IN A
FUNCTIONALLY INTEGRATED WORK PROCESS, EMPLOYEES IN EACH OF THE CLAIMED
UNITS DO NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND APART FROM OTHER EMPLOYEES OF THE ACTIVITY, AND THE UNITS
CLAIMED WOULD NOT CONTRIBUTE TO EFFECTIVE DEALINGS OR EFFICIENCY OF
AGENCY OPERATIONS. IT IS THE ACTIVITY'S POSITION THAT THE ONLY
APPROPRIATE UNIT WOULD INCLUDE ALL ELIGIBLE EMPLOYEES AT FORT MONMOUTH
NOT CURRENTLY REPRESENTED OR OTHERWISE BARRED. /2/
THE AFGE AGREES WITH THE ACTIVITY THAT AN INSTALLATION-WIDE, RESIDUAL
UNIT IS APPROPRIATE AND CONTENDS THAT IF SUCH A UNIT WERE FOUND TO BE
APPROPRIATE AND AN ELECTION DIRECTED, IT WOULD WAIVE THE EXCLUSIVE
RECOGNITIONS IT HOLDS CURRENTLY AND INCORPORATE THEM IN THE MORE
COMPREHENSIVE UNIT.
ON NOVEMBER 29, 1971, THE NFFE FILED A CHALLENGE TO THE VALIDITY OF
AFGE'S SHOWING OF INTEREST FILED IN CONNECTION WITH THE LATTER'S
INTERVENTION IN CASE NO. 32-2432. THE RECORD REVEALS THAT THIS
CHALLENGE WAS FILED MORE THAN TEN DAYS AFTER RECEIPT BY THE PETITIONER,
NFFE, OF A COPY OF THE AFGE'S REQUEST FOR INTERVENTION.
NOTWITHSTANDING THE APPARENT UNTIMELINESS OF THE CHALLENGE /3/ AND
THE FACT THAT THE AFGE PARTICIPATED FULLY IN THE HEARING IN THE MATTER
ON THE BASIS OF ITS INTERVENTION IN EACH OF THE SUBJECT CASES INCLUDING
CASE NO. 32-2432, THE REGIONAL ADMINISTRATOR SUBSEQUENTLY INVESTIGATED
THE NFFE'S CHALLENGE AND ON MAY 9, 1972 RECOMMENDED THAT I REVOKE
APPROVAL OF THE AFGE'S INTERVENTION IN CASE NO.32-2432 BASED ON HIS
FINDING THAT THE "INTEREST SUBMITTED APPEARED TO BE FRAUDULENT." ON MAY
18, 1972, I REQUESTED THE AFGE TO SHOW CAUSE WHY APPROVAL OF ITS
INTERVENTION SHOULD NOT BE REVOKED. ON MAY 26, 1972 THE AFGE RESPONDED
TO MY REQUEST CONTENDING THAT IT "HAS NEVER KNOWINGLY SUBMITTED A
FRAUDULENT PETITION AND HAS NO PROOF THAT THESE (SIGNATURES ON SHOWING
OF INTEREST FORMS) ARE FRAUDULENT SIGNATURES." AFGE FURTHER CONTENDED
THAT THE NFFE'S CHALLENGE TO THE INTERVENTION WAS FILED UNTIMELY.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE CHALLENGE TO THE
VALIDITY OF THE AFGE'S SHOWING OF INTEREST IN CASE NO. 32-2432 SHOULD BE
SUSTAINED. THUS, THE ADMINISTRATIVE INVESTIGATION CONDUCTED BY THE
REGIONAL ADMINISTRATOR (OF WHICH I TAKE OFFICIAL NOTICE IN THIS MATTER)
REVEALED THAT THE EMPLOYEE SIGNATURES SUBMITTED BY THE AFGE TO SUPPORT
ITS INTERVENTION IN CASE NO. 32-2432 WERE OF QUESTIONABLE AUTHENTICITY.
FURTHER, IN VIEW OF THE TAINTED NATURE OF THE AFGE'S SHOWING OF
INTEREST, I FIND THAT STRICT ADHERENCE TO THE TEN DAY CHALLENGE PERIOD
SET FORTH ABOVE WOULD NOT BE WARRANTED. THUS, THE ACCEPTANCE OF A
SHOWING OF INTEREST WHICH IS OF HIGHLY QUESTIONABLE VALIDITY ON THE SOLE
BASIS THAT THE CHALLENGE IN THIS REGARD WAS FILED UNTIMELY WOULD NOT, IN
MY VIEW, BE CONSISTENT WITH THE PROPER EFFECTUATION OF THE ORDER. /4/
ACCORDINGLY, IN THESE CIRCUMSTANCES, I FIND THAT REVOCATION OF THE
APPROVAL OF THE AFGE'S INTERVENTION IN CASE NO. 32-2432 IS WARRANTED.
IN VIEW OF THE GRAVITY OF THE EVENTS WHICH HAVE TAKEN PLACE AT FORT
MONMOUTH SUBSEQUENT TO THE HEARING IN THE SUBJECT CASES, I HAVE TAKEN
ADDITIONAL OFFICIAL NOTICE OF CERTAIN CONDUCT BY BOTH THE AFGE AND THE
NFFE IN CONNECTION WITH THE CONSIDERATION OF THE SUBJECT CASES. IN THIS
REGARD, I HAVE BEEN ADVISED ADMINISTRATIVELY BY THE REGIONAL
ADMINISTRATOR THAT POST-HEARING PETITIONS FILED BY EACH OF THE
ABOVE-MENTIONED LABOR ORGANIZATIONS FOR INSTALLATION-WIDE, RESIDUAL
UNITS HAVE BEEN DISMISSED ON THE BASIS OF DEFECTIVE SHOWING OF INTEREST.
THUS, IN CASE NOS. 32-2572 AND 32-2565 THE REGIONAL ADMINISTRATOR FOUND
THAT THE INTEREST SUBMITTED BY THE PETITIONING LABOR ORGANIZATIONS, THE
AFGE AND THE NFFE, RESPECTIVELY, WAS OF QUESTIONABLE AUTHENTICITY.
I AM BOTH SHOCKED AND DEEPLY CONCERNED BY THE DISCREDITABLE CONDUCT
AND APPARENT DISREGARD OF THE PURPOSES AND POLICIES OF THE EXECUTIVE
ORDER DISPLAYED BY BOTH THE AFGE AND THE NFFE AT FORT MONMOUTH IN
CONNECTION WITH THEIR RESPECTIVE ATTEMPTS TO ESTABLISH AN ADEQUATE
SHOWING OF INTEREST. THE NATIONAL OFFICE OFFICIALS OF BOTH LABOR
ORGANIZATIONS SHOULD TAKE IMMEDIATE STEPS TO ENSURE THAT SUCH IMPROPER
CONDUCT WILL NOT BE REPEATED IN FUTURE CASES. FURTHER, IF THIS
SITUATION IS REPEATED, I WILL NOT HESITATE TO MAKE THE PROCEDURES OF THE
ASSISTANT SECRETARY UNAVAILABLE TO THE PARTIES CONCERNED.
THE ACTIVITY IS ONE OF EIGHT MAJOR SUBORDINATE COMMODITY COMMANDS OF
THE ARMY MATERIEL COMMAND (AMC) AND IS ENGAGED IN THE RESEARCH, DESIGN,
DEVELOPMENT, PROCUREMENT, DISTRIBUTION, SUPPLY, AND MAINTENANCE SUPPORT
OF COMMUNICATIONS-ELECTRONICS EQUIPMENT. IT IS COMPOSED OF FOUR GENERAL
GROUPINGS: (1) COMMAND GROUP, (2) COORDINATING AGENCIES, (3) FUNCTIONAL
DIRECTORATES, AND (4) SUPPORT RESOURCE AND SPECIAL STAFF.
AT THE FUNCTIONAL DIRECTORATE LEVEL THERE ARE SIX DIRECTORATES: (1)
DIRECTORATE OF RESEARCH, DEVELOPMENT AND ENGINEERING AND ECOM
LABORATORIES; (2) DIRECTORATE OF PROCUREMENT AND PRODUCTION; (3)
DIRECTORATE OF MATERIEL MANAGEMENT
(4) DIRECTORATE OF PRODUCT ASSURANCE; (5) DIRECTORATE OF
MAINTENANCE; AND (6) TELEVISION-AUDIO SUPPORT AGENCY. /6/ THREE OF THE
FOUR UNITS PETITIONED FOR IN THE SUBJECT CASES INCLUDE COMPLETE,
SEPARATE DIRECTORATES, NAMELY (1), (2), AND (4) ABOVE. THE FOURTH UNIT
PETITIONED FOR SEEKS ONE OF THE LABORATORIES WITHIN THE FIRST OF THE
THREE UNITS MENTIONED ABOVE.
THE RESEARCH, DEVELOPMENT AND ENGINEERING DIRECTORATE AND ECOM
LABORATORIES IS COMPOSED OF STAFF PERSONNEL WHO ARE CHARGED WITH THE
OVERALL ADMINISTRATION OF THE ACTIVITY'S SEVEN FUNCTIONAL LABORATORIES
AND THE LABORATORIES' SUPPORT ORGANIZATION. THE MISSION OF THIS
DIRECTORATE ENCOMPASSES ALL AREAS OF RESEARCH, DEVELOPMENT AND
ENGINEERING, INCLUDING BASIC AND APPLIED RESEARCH, EXPLORATORY
DEVELOPMENT, ADVANCE DEVELOPMENT, AND ENGINEERING DESIGN. THE RECORD
DISCLOSES THAT THE MAJORITY OF THE JOB FUNCTIONS PERFORMED BY EMPLOYEES
IN THIS PROPOSED UNIT ARE NOT UNIQUE WITHIN THE ACTIVITY. /7/ THUS,
THERE ARE OTHER EMPLOYEES THROUGHOUT THE ACTIVITY WHO POSSESS SIMILAR
SKILLS AND PERFORM SIMILAR OR RELATED JOB FUNCTIONS AS THOSE EMPLOYEES
LOCATED IN THE RESEARCH, DEVELOPMENT AND ENGINEERING DIRECTORATE AND
ECOM LABORATORIES AT FORT MONMOUTH. ALSO, THERE IS EVIDENCE OF TRANSFER
BETWEEN EMPLOYEES IN THE LABORATORIES AND OTHER DIRECTORATES AND OFFICES
OF THE ACTIVITY. IN FACT, DURING THE 5-YEAR PERIOD, 1967-1971, 85
EMPLOYEES TRANSFERRED FROM THE LABORATORIES TO OTHER ELEMENTS OF ECOM,
WHILE, AT THE SAME TIME, 42 EMPLOYEES TRANSFERRED FROM OTHER ELEMENTS OF
ECOM TO THE LABORATORIES. MOREOVER, THERE APPEARS TO BE SIGNIFICANT
INTERCHANGE BETWEEN LABORATORY EMPLOYEES AND EMPLOYEES IN THE PROJECT
MANAGERS' OFFICES, A STAFF ORGANIZATION AT THE COMMAND LEVEL GIVEN
AUTHORITY TO OVERSEE THE DEVELOPMENT OF A PARTICULAR COMMODITY. /8/
THE ELECTRONICS WARFARE LABORATORY, WHICH CONTAINS ALL OF THE
EMPLOYEES IN THE UNIT CLAIMED BY THE NFFE IN CASE NO. 32-2235, IS ONE OF
SEVEN LABORATORIES WITHIN THE DIRECTORATE OF RESEARCH, DEVELOPMENT AND
ENGINEERING. THE MISSION OF THE ELECTRONICS WARFARE LABORATORY IS THE
RESEARCH AND DEVELOPMENT OF ELECTRONICS WARFARE EQUIPMENT, SELECTED
INTELLIGENCE EQUIPMENT, AND QUICK REACTION FABRICATION OF THIS
EQUIPMENT.
OF THE 162 EMPLOYEES EMPLOYED BY THE ELECTRONICS WARFARE LABORATORY
THE MAJORITY WORK AS EITHER ELECTRONICS ENGINEERS OR PHYSICISTS. THE
RECORD REVEALS THAT OTHER LABORATORIES, AS WELL AS SEVERAL FUNCTIONAL
DIRECTORATES OF THE ACTIVITY, EMPLOY INDIVIDUALS WITH SIMILAR SKILLS IN
IDENTICAL OR RELATED JOB CLASSIFICATIONS. MOREOVER, THERE IS EVIDENCE
OF TRANSFER BETWEEN EMPLOYEES IN THE ELECTRONICS WARFARE LABORATORY AND
EMPLOYEES IN OTHER LABORATORIES AND DIRECTORATES. IN ITS LOCATION AT
THE EVANS AREA, ELECTRONICS WARFARE LABORATORY EMPLOYEES ARE HOUSED WITH
EMPLOYEES FROM AT LEAST ONE OTHER LABORATORY AND THE RECORD REVEALS THAT
THE SHARING OF PHYSICAL FACILITIES, SUCH AS THE CAFETERIA AND REST
ROOMS, IS NOT UNCOMMON.
THERE ARE APPROXIMATELY 882 EMPLOYEES WORKING IN THE PROCUREMENT AND
PRODUCTION DIRECTORATE IN THE UNIT SOUGHT BY THE NFFE IN CASE NO.
32-2003, OCCUPYING SUCH JOB CLASSIFICATIONS AS ELECTRICAL ENGINEER,
ENGINEERING TECHNICIAN, CONTRACTING OFFICER, AND CONTRACT SPECIALIST.
THE PROCUREMENT AND PRODUCTION DIRECTORATE IS CHARGED WITH EFFECTING
PROCUREMENT OF EQUIPMENT, SERVICES, AND SUPPLIES, DISCHARGING THE
ACTIVITY PRODUCTION SUPPORT PROGRAM, AND PROVIDING NECESSARY PRODUCTION
ENGINEERING TO INCLUDE SPECIFICATIONS AND STANDARDIZATION.
THE RECORD REVEALS THAT THERE ARE OTHER DIRECTORATES AND OFFICES
THROUGHOUT THE ACTIVITY WHICH EMPLOY INDIVIDUALS WHO POSSESS SIMILAR
SKILLS AND PERFORM SIMILAR OR RELATED JOB FUNCTIONS AS THOSE POSSESSED
AND PERFORMED BY EMPLOYEES WORKING IN THE PROCUREMENT AND PRODUCTION
DIRECTORATE. THUS, VARIOUS TYPES OF ENGINEERS MAY BE FOUND IN ALL OTHER
FUNCTIONAL DIRECTORATES AS WELL AS OTHER OFFICES. ALSO, WHILE MOST
PROCUREMENT-TYPE PERSONNEL ARE LOCATED IN THE PROCUREMENT AND PRODUCTION
DIRECTORATE, THE EVIDENCE ESTABLISHES THAT THERE ARE OTHER
PROCUREMENT-TYPE PERSONNEL WORKING IN OTHER OFFICES OF THE ACTIVITY.
THE RECORD DISCLOSES ALSO THAT DURING THE FIRST 5 MONTHS OF FISCAL YEAR
1972 THERE WERE 14 EMPLOYEES OF THE PROCUREMENT AND PRODUCTION
DIRECTORATE WHO MOVED TO OTHER DIRECTORATES AND OFFICES OF THE ACTIVITY
AS A RESULT OF A TRANSFER OR PROMOTION. /9/
THERE ARE APPROXIMATELY 67 EMPLOYEES WORKING IN THE PRODUCT ASSURANCE
DIRECTORATE IN THE UNIT SOUGHT BY THE NFFE IN CASE NO. 32-2432. THE
MAJOR JOB CLASSIFICATIONS IN THE PRODUCT ASSURANCE DIRECTORATE INCLUDE
QUALITY CONTROL SPECIALISTS, PLANS ANS SYSTEMS ANALYSTS, AND ENGINEERS
OF VARIOUS TYPES. THE MISSION OF THIS DIRECTORATE IS TO PLAN, DEVELOP,
AND MANAGE THEIR PORTION OF PRODUCT DEVELOPMENT AS IT RELATES TO
RELIABILITY, MAINTAINABILITY, QUALITY ENGINEERING, METROLOGY,
CALIBRATION, AND SYSTEMS PERFORMANCE ASSESSMENT.
THE EVIDENCE ESTABLISHES THAT THE BASIC SKILLS UTILIZED BY EMPLOYEES
IN THE PRODUCT ASSURANCE DIRECTORATE ARE NOT UNIQUE AND ARE NOT LIMITED
SOLELY TO THE PRODUCT ASSURANCE DIRECTORATE. FOR EXAMPLE, ENGINEERS
ALSO ARE FOUND IN THE FOLLOWING DIRECTORATES: PROCUREMENT AND
PRODUCTION, MAINTENANCE, AND RESEARCH, DEVELOPMENT AND ENGINEERING.
THEY ALSO ARE FOUND IN THE PROJECT MANAGERS' OFFICES. FURTHER, QUALITY
CONTROL SPECIALISTS ARE LOCATED WITHIN THE PROCUREMENT AND PRODUCTION
DIRECTORATE AND IN THE PROJECT MANAGERS' OFFICES; AND PLANS AND SYSTEMS
ANALYSTS ALSO ARE FOUND IN THE RESEARCH, DEVELOPMENT, AND ENGINEERING
DIRECTORATE. /10/ THE EVIDENCE ESTABLISHES THAT THERE HAVE BEEN
INSTANCES IN WHICH EMPLOYEES OF OTHER DIRECTORATES AND OFFICES OF THE
ACTIVITY HAVE TRANSFERRED TO THE PRODUCT ASSURANCE DIRECTORATE.
MOREOVER, THE EVIDENCE ESTABLISHES THAT AS A RESULT OF A RECENT
REDUCTION IN FORCE, THE PRODUCT ASSURANCE DIRECTORATE ABSORBED
APPROXIMATELY FIVE EMPLOYEES FROM THE PROCUREMENT AND PRODUCTION
DIRECTORATE.
THE EVIDENCE REVEALS THAT IN ACCOMPLISHING ITS OVERALL MISSION THE
ACTIVITY UTILIZES WHAT IS REFERRED TO AS LIFE-CYCLE MANAGEMENT
TECHNIQUES. BASICALLY, THIS SYSTEM PROVIDES FOR THE DEVELOPMENT OF A
COMMODITY THROUGH AN INTEGRATED WORK PROCESS INVOLVING ALL FUNCTIONAL
DIRECTORATES AS WELL AS VARIOUS OTHER ACTIVITY OFFICES AND DIRECTORATES.
THUS, ALTHOUGH EACH DIRECTORATE PERFORMS ITS OWN PARTICULAR FUNCTION,
IT IS DEPENDENT UPON AND WORKS IN CONJUNCTION WITH THE OTHERS FOR THE
SUCCESSFUL COMPLETION OF A PARTICULAR STAGE OF DEVELOPMENT OF A
SPECIFIED COMMODITY. THIS PROCEDURE INVOLVES A CONTINUOUS EXCHANGE OF
INFORMATION AND FREQUENT CONTACT AMONG EMPLOYEES OF THE DIFFERENT
DIRECTORATES. FOR EXAMPLE, IN THE PREPARATION OF A FINAL PROCUREMENT
DATA PACKAGE TO BE DISTRIBUTED ULTIMATELY FOR THE SOLICITATION OF BIDS,
THE PROCUREMENT AND PRODUCTION DIRECTORATE ASSUMES PRIMARY
RESPONSIBILITY. HOWEVER, THIS INFORMATION CANNOT BE PREPARED SOLELY BY
THE PROCUREMENT AND PRODUCTION DIRECTORATE WITHOUT THE ASSISTANCE FROM
AND COORDINATION WITH OTHER DIRECTORATES. THUS, IN A SITUATION SUCH AS
THIS, THE PROCUREMENT AND PRODUCTION DIRECTORATE MUST RELY ON THE
FOLLOWING DIRECTORATES TO ACCOMPLISH ITS MISSION: THE RESEARCH,
DEVELOPMENT AND ENGINEERING DIRECTORATE PROVIDES TECHNICAL
SPECIFICATIONS DOCUMENTS AND REQUIREMENTS; THE PRODUCTION ASSURANCE
DIRECTORATE SUPPLIES THE NECESSARY QUALITY CONTROL STANDARDS WHICH MUST
BE MET; AND THE MAINTENANCE DIRECTORATE PRESENTS A MAINTENANCE PROGRAM.
ALL OF THE FACTORS DEVELOPED BY THESE OTHER DIRECTORATES MUST BE TAKEN
INTO CONSIDERATION BEFORE THE PROCUREMENT AND PRODUCTION DIRECTORATE CAN
FORMULATE A FINAL PROCUREMENT PACKAGE. THE RECORD REVEALS THAT THIS
TYPE OF SITUATION IS TYPICAL OF THE INTERACTION WHICH OCCURS THROUGHOUT
THE DEVELOPMENT OF A COMMODITY. MOREOVER, IN THIS REGARD, WHEN A
PROBLEM ARISES A TASK FORCE, CONSISTING OF EMPLOYEES OF ALL FUNCTIONAL
DIRECTORATES, IS ORGANIZED TO RESOLVE THE PARTICULAR PROBLEM INVOLVED.
/11/
THE RECORD DISCLOSES THAT THERE IS ONE CIVILIAN PERSONNEL OFFICE
WHICH ESTABLISHES PERSONNEL POLICIES FOR AND SERVICES THE ENTIRE
ACTIVITY. SUCH MATTERS AS HIRING, ADVERSE ACTIONS, REDUCTIONS IN FORCE,
PROMOTIONS, REASSIGNMENT OF PERSONNEL, AND MAINTENANCE OF EMPLOYEE
RECORDS ARE HANDLED BY THIS OFFICE. THE ACTIVITY ALSO UTILIZES A
CENTRALIZED COMPTROLLER OFFICE WHICH IS RESPONSIBLE FOR FINANCIAL
MATTERS, INCLUDING BUDGETING, ACCOUNTING, COST ANALYSIS, DISBURSEMENT
AND RELATED FISCAL POLICIES FOR THE ENTIRE COMMAND. IN ADDITION, ALL
ACTIVITY EMPLOYEES OPERATE UNDER THE SAME PROMOTION PROCEDURE AND THE
AREA OF CONSIDERATION FOR PROMOTION OPPORTUNITIES FOR ALL GRADES OF
EMPLOYEES AT FORT MONMOUTH IS ON AN ACTIVITY-WIDE BASIS.
BASED ON THE FOREGOING, I FIND THAT THE UNITS CLAIMED BY THE NFFE IN
THE SUBJECT CASES ARE NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER. AS NOTED ABOVE, THE RECORD DEMONSTRATES
THE ACTIVITY UTILIZES AN INTEGRATED WORK PROCESS INVOLVING CONSIDERABLE
CONTACT AND COORDINATION BETWEEN AND AMONG ALL EMPLOYEES OF THE
ACTIVITY'S DIRECTORATES AND OFFICES. THE RECORD REVEALS ALSO THAT MANY
OF THE EMPLOYEES WITHIN THE DIRECTORATES OF THE ACTIVITY INCLUDING THOSE
COVERED IN THE SUBJECT PETITIONS POSSES SIMILAR SKILLS AND PERFORM
SIMILAR OR RELATED JOB FUNCTIONS. ADDITIONALLY, THERE IS EVIDENCE THAT
THE AREA OF CONSIDERATION FOR PROMOTION IS ON AN ACTIVITY-WIDE BASIS AND
IS NOT CONFINED SOLELY TO AN INDIVIDUAL DIRECTORATE AND, FURTHER, ALL
EMPLOYEES OF THE ACTIVITY OPERATE UNDER THE SAME PROMOTION PROCEDURE.
THE EVIDENCE ALSO DEMONSTRATES THAT THERE HAVE BEEN SEVERAL INSTANCES OF
TRANSFER BETWEEN EMPLOYEES IN THE UNITS PETITIONED FOR AND EMPLOYEES OF
OTHER DIRECTORATES AND OFFICES OF THE ACTIVITY. IN THESE CIRCUMSTANCES,
AND NOTING THE ACTIVITY'S CENTRALIZED PERSONNEL POLICIES AND PRACTICES,
I FIND THAT THE EMPLOYEES IN EACH OF THE PETITIONED FOR UNITS DO NOT
POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND
APART FROM OTHER EMPLOYEES OF THE ACTIVITY. MOREOVER, IN MY VIEW, SUCH
FRAGMENTED UNITS WOULD NOT PROMOTE EFFECTIVE DEALINGS OR CONTRIBUTE TO
EFFICIENCY OF AGENCY OPERATIONS. /12/ ACCORDINGLY, I SHALL DISMISS THE
PETITIONS HEREIN. /13/
IT IS HEREBY ORDERED THAT THE PETITIONS IN CASE NOS. 32-2003,
32-2235, 32-2393, AND 32-2432 BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON D.C.
OCTOBER 31, 1972
/1/ IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO PASS
UPON THE AFGE'S MOTION TO DISMISS THE NFFE'S PETITION IN CASE NO.
32-2003 BASED ON ALLEGED "LACK OF COOPERATION" AND THE AFGE'S MOTION TO
DISMISS ALL OF THE SUBJECT PETITIONS BASED ON THE ALLEGATION THAT THE
NFFE FAILED TO SERVE THE AFGE WITH COPIES OF ITS PETITIONS PURSUANT TO
SECTION 202.2(E)(3) OF THE ASSISTANT SECRETARY'S REGULATIONS.
/2/ AS AN ALTERNATIVE POSITION, THE NFFE WAS OF THE VIEW THAT THE
UNIT PROPOSED BY THE ACTIVITY ALSO WOULD BE APPROPRIATE.
/3/ SEE REPORT ON A DECISION OF THE ASSISTANT SECRETARY, REPORT NO.
7, WHERE I FOUND THAT "WITH RESPECT TO A LABOR ORGANIZATION INTERVENING
UNDER SECTION 202.5(A) (OF THE REGULATIONS), PARTIES SHOULD BE ENTITLED
TO A TEN DAY PERIOD TO CHALLENGE THE INTERVENOR'S SHOWING OF INTEREST OR
STATUS. SUCH CHALLENGE MUST BE FILED WITH THE AREA ADMINISTRATOR WITHIN
TEN (10) DAYS AFTER THE RECEIPT BY A PARTY OF A COPY OF THE REQUEST FOR
INTERVENTION."
/4/ SEE, IN THIS REGARD, SECTION 205.7(B) OF THE ASSISTANT
SECRETARY'S REGULATIONS WHICH PROVIDES THAT "WHEN AN ACT IS REQUIRED OR
ALLOWED TO BE DONE AT OR WITHIN A SPECIFIED TIME THE ASSISTANT SECRETARY
MAY AT ANY TIME ORDER THE PERIOD ALTERED WHERE IT SHALL BE MANIFEST THAT
STRICT ADHERENCE WILL WORK SURPRISE OR INJUSTICE OR INTERFERE WITH THE
PROPER EFFECTUATION OF THE ORDER."
/5/ THE DIRECTORATE OF MATERIEL MANAGEMENT IS LOCATED, FOR THE MOST
PART, IN PHILADELPHIA, PENNSYLVANIA. HOWEVER, A SMALL SEGMENT OF THE
DIRECTORATE-- THE COMMUNICATIONS AND ELECTRONICS SUPPORT BRANCH-- IS
LOCATED AT FORT MONMOUTH.
/6/ THE TELEVISION-AUDIO SUPPORT AGENCY IS LOCATED IN SACRAMENTO,
CALIFORNIA.
/7/ CURRENTLY THERE ARE APPROXIMATELY 1600 EMPLOYEES IN THE RESEARCH,
DEVELOPMENT AND ENGINEERING DIRECTORATE. OF THAT NUMBER, APPROXIMATELY
1000 ARE EMPLOYED AS ENGINEERS AND SCIENTISTS.
/8/ THE RESEARCH, DEVELOPMENT AND ENGINEERING DIRECTORATE IS LOCATED
IN THE HEXAGON AREA, SOME 2-1/2 MILES FROM THE MAIN POST. FOR THE MOST
PART, THE LABORATORIES ALSO ARE LOCATED IN THIS AREA. HOWEVER, SEVERAL
LABORATORIES, INCLUDING THE ELECTRONICS WARFARE LABORATORY, ARE LOCATED
IN THE EVANS AREA, SITUATED APPROXIMATELY TEN MILES FROM THE MAIN POST.
AT THESE LOCATIONS OTHER ACTIVITY OFFICES AND DIRECTORATES SHARE
BUILDING SPACE WITH EMPLOYEES OF THE RESEARCH, DEVELOPMENT AND
ENGINEERING DIRECTORATE.
/9/ THE PROCUREMENT AND PRODUCTION DIRECTORATE IS LOCATED, FOR THE
MOST PART, IN THE COLES AREA, 5-6 MILES FROM THE MAIN POST. EMPLOYEES
OF THE PROCUREMENT AND PRODUCTION DIRECTORATE SHARE WITH EMPLOYEES OF
OTHER DIRECTORATES SUCH FACILITIES AS THE CAFETERIA, LIBRARY, ETC.
/10/ AT ITS LOCATION AT THE MAIN POST, PRODUCT ASSURANCE DIRECTORATE
EMPLOYEES SHARE MANY PHYSICAL FACILITIES, SUCH AS THE PARKING LOT, A
TEST LABORATORY, AND A CAFETERIA, WITH EMPLOYEES OF OTHER DIRECTORATES
AND OFFICES OF THE ACTIVITY.
/11/ ALSO, DATA REVIEW BOARDS, COMPOSED OF EMPLOYEES OF ALL
DIRECTORATES, FREQUENTLY MEET TO EVALUATE THE CURRENT POSITION OF A
COMMODITY.
/12/ COMPARE DEPARTMENT OF THE ARMY, U.S. ARMY ELECTRONICS COMMAND,
FORT MONMOUTH, NEW JERSEY, A/SLMR NO. 83, WHEREIN I FOUND THAT AN
APPROPRIATE UNIT INCLUDED ALL EMPLOYEES OF RESEARCH AND DEVELOPMENT
TECHNICAL SUPPORT ACTIVITY AT FORT MONMOUTH. IN THAT CASE, THERE WAS NO
CONTENTION THAT A MORE COMPREHENSIVE UNIT WAS APPROPRIATE AND NO
EVIDENCE WAS PRESENTED AS TO ANY INTERACTION BETWEEN EMPLOYEES OF THE
RESEARCH AND DEVELOPMENT TECHNICAL SUPPORT ACTIVITY AND OTHER ACTIVITY
OFFICES AND DIRECTORATES.
/13/ I AM ADMINISTRATIVELY ADVISED THAT BOTH THE NFFE AND THE AFGE
LACK A SUFFICIENT SHOWING OF INTEREST IN THE RESIDUAL, ACTIVITY-WIDE
UNIT PROPOSED BY THE ACTIVITY AND CONSIDERED APPROPRIATE BY THE NFFE.
IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO MAKE ANY
FINDINGS AS TO THE INCLUSION OR EXCLUSION IN THE PROPOSED UNITS OF
EMPLOYEES CLASSIFIED AS STUDENT TRAINEES, PART-TIME, TEMPORARY, OR AMC
INTERNS.
2 A/SLMR 215; P. 536; CASE NO. 31-5475(RO); OCTOBER 30, 1972.
U.S.NAVAL REWORK FACILITY
QUONSET POINT NAVAL AIR STATION,
QUONSET POINT, RHODE ISLAND
A/SLMR NO. 215
THIS REPRESENTATION PROCEEDING INVOLVED A SEVERANCE REQUEST BY THE
PETITIONER, OPERATIONS ANALYSIS ASSOCIATION, NO. 011, FOR A UNIT OF
PRODUCTION CONTROLLERS AND ELECTRONIC TECHNICIANS IN THE OPERATIONS
ANALYSIS DIVISION, PRODUCTION ENGINEERING DEPARTMENT OF THE ACTIVITY,
U.S. NAVAL REWORK FACILITY, QUONSET POINT NAVAL AIR STATION, QUONSET
POINT, RHODE ISLAND. THESE EMPLOYEES HAVE BEEN INCLUDED IN A UNIT,
SINCE 1966, REPRESENTED BY THE INTERVENOR, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R1-7.
THE PETITIONER ADVOCATED THE LEGITIMACY OF ITS REQUEST ON THE GROUNDS
THAT (A) THE CLAIMED EMPLOYEES SHARE A SIGNIFICANT COMMUNITY OF
INTEREST; (B) SEVEN GROUPINGS OF THE ACTIVITY'S EMPLOYEES, ONE OF WHICH
CONTAINS PRODUCTION CONTROLLERS IN ANOTHER DEPARTMENT AND REPRESENTED BY
A LABOR ORGANIZATION OTHER THAN THE TWO INVOLVED HEREIN, HAVE BEEN
PERMITTED TO BARGAIN COLLECTIVELY WITH THE ACTIVITY THROUGH THEIR OWN,
SEPARATE UNITS; AND (C) NOTWITHSTANDING THAT THE EMPLOYEES SOUGHT HAVE
BEEN A PART OF THE INTERVENOR'S UNIT FOR A SUBSTANTIAL PERIOD OF TIME,
ON NO OCCASION HAS THAT UNION EVER ACTUALLY REPRESENTED THEM ON EITHER
AN INFORMAL OR A FORMAL BASIS.
BOTH THE ACTIVITY AND THE INTERVENOR CONTENDED THAT THE PETITIONER'S
REQUEST BE DENIED. THEY STRESSED, (A) THAT THE CLAIMED EMPLOYEES ARE A
SMALL SEGMENT OF BY FAR THE LARGEST COLLECTIVE-BARGAINING UNIT AT THE
ACTIVITY-- ABOUT 2,000 EMPLOYEES AS OPPOSED TO A TOTAL OF AROUND 400 IN
THE REMAINING SIX UNITS-- SO THAT THE ESSENTIAL ISSUE INVOLVED THE
SEVERANCE OF A GROUP OF EMPLOYEES FROM WHAT, FOR MOST PURPOSES, STANDS
AS A FACILITY-WIDE UNIT WITH A SUBSTANTIAL COLLECTIVE-BARGAINING HISTORY
TO SUPPORT IT; (B) THESE EMPLOYEES HAVE NOT BEEN IGNORED BY THE
INTERVENOR IN ITS REPRESENTATIONAL CAPACITY; (C) ALL SEVEN UNITS WERE
RECOGNIZED PRIOR TO EXECUTIVE ORDER 11491, SUBSEQUENT TO WHICH TIME THE
ASSISTANT SECRETARY HAS MADE CLEAR, IN VARIOUS DECISIONS, THAT
CARVE-OUTS, IN LIGHT OF ADEQUATE PRIOR REPRESENTATION, WILL NOT BE
GRANTED EXCEPT IN "UNUSUAL CIRCUMSTANCES"-- NOT EXISTING IN THIS
SITUATION; AND (D) THE ACTIVITY'S EXPERIENCE IN DEALING WITH SEVEN
LABOR ORGANIZATIONS HAS PROVEN TO BE AN IMPEDIMENT TO ITS EFFECTIVE
DEALINGS AND EFFICIENCY OF OPERATIONS.
THE ASSISTANT SECRETARY CONCLUDED THAT THE REQUESTED UNIT WAS NOT
APPROPRIATE. DESPITE SOME UNUSUAL "ASPECTS" OF THIS CASE, THE EVIDENCE
WEIGHED IN FAVOR OF FINDINGS THAT: (1) THE INTERVENOR HAS BEEN NOT ONLY
THE LONG ESTABLISHED COLLECTIVE-BARGAINING REPRESENTATIVE FOR THE
CLAIMED EMPLOYEES, BUT ALSO THERE WAS NO EVIDENCE THAT IT HAD BEEN
INEFFECTIVE AND UNFAIR IN ITS DEALINGS WITH THEM; (2) NOTHING WITH
REGARD TO WORKING CONDITIONS HAS CHANGED DURING THIS PERIOD WHICH MIGHT
HAVE ALTERED THIS PROVEN COMMUNITY OF INTEREST; AND (3) THE
FRAGMENTATION OF THE ACTIVITY'S OPERATIONS FOR COLLECTIVE-BARGAINING
PURPOSES OCCURRED PRIOR TO EXECUTIVE ORDER 11491.
U.S. NAVAL REWORK FACILITY,
QUONSET POINT NAVAL AIR STATION,
QUONSET POINT, RHODE ISLAND
AND
OPERATIONS ANALYSIS ASSOCIATION, NO. 011
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-7
UPON A DULY FILED PETITION UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER THOMAS W. CAMPBELL. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF SUBMITTED BY
THE PETITIONER, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, OPERATIONS ANALYSIS ASSOCIATION, NO. 011, SEEKS A
UNIT COMPOSED OF ALL PRODUCTION CONTROLLERS AND ELECTRONIC TECHNICIANS
IN THE OPERATIONS ANALYSIS DIVISION, PRODUCTION ENGINEERING DEPARTMENT
(APPROXIMATELY 35 EMPLOYEES), EXCLUDING ALL EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, PROFESSIONAL EMPLOYEES, AND SUPERVISORS AND GUARDS AS DEFINED
IN THE EXECUTIVE ORDER. THE EMPLOYEES SOUGHT WOULD BE CARVED OUT OF AN
EXISTING UNIT, ONE OF SEVEN COLLECTIVE-BARGAINING UNITS AT THE ACTIVITY,
WHICH TOGETHER REPRESENT ALL OF THE ACTIVITY'S APPROXIMATE 2,400
CIVILIAN NONMANAGERIAL, NONPROFESSIONAL AND NONSUPERVISORY EMPLOYEES.
/1/
THE UNIT AFFECTED BY THE PETITIONER'S SEVERANCE REQUEST IS
REPRESENTED BY THE INTERVENOR, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-7, WHICH, AS NOTED ABOVE, IS COMPOSED OF 1,964 OF
THE ACTIVITY'S APPROXIMATELY 2,400 CIVILIAN EMPLOYEES. ACCORDING TO THE
ACTIVITY-INTERVENOR'S LATEST COLLECTIVE-BARGAINING AGREEMENT, EFFECTIVE
FROM NOVEMBER 14, 1969, TO NOVEMBER 13, 1971, /2/ THE UNIT IS DEFINED
AS: "(A/11 ELIGIBLE EMPLOYEES OF THE NAVAL AIR REWORK FACILITY, QUONSET
POINT, RHODE ISLAND, EXCEPT MANAGERIAL, SUPERVISORY, AND PROFESSIONAL
EMPLOYEES AND EMPLOYEES IN THE FOLLOWING POSITIONS: AIRCRAFT QUALITY
CONTROL SPECIALIST AND INSPECTOR OF THE QUALITY ASSURANCE DEPARTMENT;
PRODUCTION CONTROLLER OF THE PRODUCTION CONTROL DIVISION, PRODUCTION
PLANNING AND CONTROL DEPARTMENT; /3/ INDUSTRIAL ENGINEERING TECHNICIAN
OF THE METHODS AND STANDARDS DIVISION, PRODUCTION ENGINEERING
DEPARTMENT; AIRCRAFT EXAMINER, CHAUFFEUR, TRUCK DRIVER, TRUCK DRIVER
(HEAVY), TRUCK DRIVER (HEAVY TRAILER), PLANNER AND ESTIMATOR, MACHINIST,
MACHINIST (MAINTENANCE), TOOLMAKER, TOOLROOM ATTENDANT, TOOLROOM
MECHANIC, MACHINE OPERATOR, OILER, HELPER MACHINIST AND APPRENTICE
(MACHINIST)."
PETITIONER. THE PETITIONER CONTENDS THAT THE UNIT IT SEEKS TO
REPRESENT IS AN APPROPRIATE ONE, AND THE CLAIMED EMPLOYEES SHOULD BE
ALLOWED TO SELECT THEIR OWN, SEPARATE COLLECTIVE-BARGAINING
REPRESENTATIVE. IT POINTS TO THE COMMUNITY OF INTEREST SHARED BY THESE
EMPLOYEES, WHO ALL WORK IN ONE DIVISION UNDER THE GENERAL SUPERVISION OF
ITS DIVISION DIRECTOR, AND NOTES THAT SEVEN OTHER GROUPS OF THE
ACTIVITY'S EMPLOYEES HAVE BEEN PERMITTED THEIR OWN EXCLUSIVE
REPRESENTATION UNITS, INCLUDING PRODUCTION CONTROLLERS IN ANOTHER
DEPARTMENT OF THE ACTIVITY. THE PETITIONER, HOWEVER, DOES NOT ADVOCATE
A COMBINATION OF ALL PRODUCTION CONTROLLERS IN ONE UNIT NOTING THAT,
WHILE THEIR CIVIL SERVICE COMMISSION JOB CLASSIFICATION SERIES IS THE
SAME, A NUMBER OF DIFFERENT POSITIONS MAY FALL UNDER THE SAME SERIES.
/4/ THE PETITIONER OBJECTS TO CONTINUING INCLUSION OF THE REQUESTED
EMPLOYEES IN THE INTERVENOR'S UNIT BECAUSE THE INTERVENOR HAS FAILED TO
REPRESENT ADEQUATELY THEIR INTERESTS. OVERALL, THE PETITIONER STRESSES
THAT DENIAL OF ITS PETITION, IN LIGHT OF THE PRECEDENT AT THIS
PARTICULAR ACTIVITY FOR GRANTING EXCLUSIVE REPRESENTATION TO OTHER LABOR
ORGANIZATIONS, WOULD BE AN UNWARRANTED FORM OF DISCRIMINATION BY THE
ASSISTANT SECRETARY, DESPITE THE FACT THAT SEVERANCE WOULD BE REQUIRED.
ACTIVITY. THE ACTIVITY, AS WELL AS THE INTERVENOR, ARGUES THAT THE
REQUESTED UNIT IS INAPPROPRIATE. THE ACTIVITY ASSERTS IN THIS
CONNECTION THAT WHILE IT HAS ALREADY EXPERIENCED FRAGMENTATION OF ITS
EMPLOYEES FOR COLLECTIVE-BARGAINING PURPOSES, THIS EXPERIENCE HAS PROVEN
TO BE AN IMPEDIMENT TO ITS EFFECTIVE DEALINGS AND EFFICIENCY OF
OPERATIONS, AND FURTHER FRAGMENTIZING WOULD ONLY AGGRAVATE AN ALREADY
UNFORTUNATE SITUATION. MOREOVER, IF THESE EMPLOYEES ARE PERMITTED TO BE
SEVERED, THERE WOULD BE NO JUSTIFICATION FOR PRECLUDING THE SEGMENTATION
OF OTHER, SIMILARLY SITUATED EMPLOYEES WHO ARE ALSO TECHNICIANS AND/OR
SKILLED CRAFTSMEN.
THE ACTIVITY ALSO CALLS ATTENTION TO THE FACT THAT, IN EVERY
INSTANCE, THE CURRENT SEVEN REPRESENTATION UNITS WERE RECOGNIZED PRIOR
TO EXECUTIVE ORDER 11491, WHICH BECAME EFFECTIVE ON JANUARY 1, 1970, AND
THAT SINCE THAT DATE, THE ASSISTANT SECRETARY HAS CONSISTENTLY FOUND, IN
COMPARABLE, ALTHOUGH NON-SEVERANCE, SITUATIONS (SEE E.G., U.S. NAVY
DEPARTMENT, NAVAL AIR REWORK FACILITY, JACKSONVILLE, FLORIDA, A/SLMR NO.
59, AND DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, NAVAL AIR
STATION, JACKSONVILLE, FLORIDA, A/SLMR NO. 75), SUCH FRAGMENTED UNITS TO
BE INAPPROPRIATE.
INTERVENOR. THE INTERVENOR CONTENDS THAT THE EMPLOYEES SOUGHT BY THE
PETITIONER ARE A SMALL SEGMENT OF A LARGE, ESSENTIALLY ACTIVITY-WIDE
UNIT WITH A SUBSTANTIAL COLLECTIVE-BARGAINING HISTORY. THESE EMPLOYEES
HAVE NOT BEEN IGNORED BY THE INTERVENOR AS THEIR EXCLUSIVE
REPRESENTATIVE, AND EXPERIENCE HAS SHOWN THEIR COMMUNITY OF INTEREST
WITH OTHER MEMBERS OF THIS UNIT. THE INTERVENOR IS IN COMPLETE
AGREEMENT WITH THE ACTIVITY THAT FURTHER REPRESENTATIONAL FRAGMENTATION
AT THIS FACILITY WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
OPERATIONS.
THE NAVAL AIR REWORK FACILITY AT QUONSET POINT, RHODE ISLAND IS AN
INDUSTRIAL OPERATION OF THE NAVY SHORE ESTABLISHMENT. IT IS LOCATED IN
PROXIMITY TO THE QUONSET POINT NAVAL AIR STATION AND IS UNDER THE
COMMAND OF THE AIR STATION, ALTHOUGH IT IS MANNED PRIMARILY BY CIVILIAN
PERSONNEL. ITS MISSION IS TO MANUFACTURE, REPAIR, AND MODIFY AIRCRAFT
AND THEIR COMPONENTS; TO FURNISH ENGINEERING SERVICES; AND TO PERFORM
ANY OTHER RELATED FUNCTIONS ASSIGNED BY THE NAVAL COMMAND. THERE ARE
SEVEN OTHER FACILITIES LIKE THE ACTIVITY IN THE NAVAL AIR SYSTEMS
COMMAND.
ORGANIZATIONALLY, THE ACTIVITY IS COMPOSED OF EIGHT DEPARTMENTS WITH
ONLY ONE, THE FLIGHT TEST DEPARTMENT, FULLY RUN BY A MILITARY STAFF.
THE REMAINING SEVEN ARE: (1) ADMINISTRATIVE SERVICES; (2) MANAGEMENT
CONTROLS; (3) AERONAUTICAL ENGINEERING; (4) QUALITY AND RELIABILITY
ASSURANCE; (5) PRODUCTION PLANNING & CONTROL; (6) PRODUCTION
ENGINEERING; AND (7) PRODUCTION. DEPARTMENTS ARE DIVIDED INTO ABOUT 28
DIVISIONS, AND MOST DIVISIONS ARE SUBDIVIDED INTO BRANCHES
(APPROXIMATELY 66 IN ALL). MANY BRANCHES, ESPECIALLY IN THE PRODUCTION
DEPARTMENT, ARE FURTHER SEPARATED INTO SECTIONS. THE PRODUCTION
DEPARTMENT, TOO, HAS OVER 100 SPECIALIZED SHOPS IN ITS DIFFERENT
SECTIONS.
ALL DEPARTMENTS FALL UNDER THE PURVIEW OF A PRODUCTION OFFICER, WITH
THE LINE OF SUPERVISION THEN THREADING ITS WAY DOWN THROUGH DEPARTMENT,
DIVISION, BRANCH, AND SECTION HEADS. EMPLOYEES, WITH THE EXCEPTION OF
SECRETARIES AND CLERICALS, IN A GIVEN PART OF THIS STRUCTURE ARE
DIRECTLY SUPERVISED BY ITS HEAD, AT WHATEVER LEVEL, AND THAT SUPERVISOR,
IN TURN, IS DIRECTLY RESPONSIBLE TO THE HEAD AT THE NEXT HIGHER LEVEL.
ALL SECRETARIES AND CLERICALS ARE SUPERVISED BY DIVISION DIRECTORS.
THE JOB CLASSIFICATIONS OF PRODUCTION CONTROLLER AND ELECTRONIC
TECHNICIAN, AT ISSUE IN THIS CASE, ARE FOUND IN THREE DEPARTMENTS--
AERONAUTICAL ENGINEERING; PRODUCTION PLANNING & CONTROL; AND
PRODUCTION ENGINEERING. THESE JOB CLASSIFICATIONS HAVE BEEN INCLUDED IN
THE INTERVENOR'S EXCLUSIVELY RECOGNIZED UNIT SINCE ITS RECOGNITION IN
1966, /5/ WITH THE EXCEPTION, NOTED ABOVE, OF CERTAIN PRODUCTION
CONTROLLERS REPRESENTED BY ANOTHER LABOR ORGANIZATION. THROUGHOUT THIS
6-YEAR PERIOD, THE INTERVENOR AND THE ACTIVITY HAVE EXECUTED
COLLECTIVE-BARGAINING AGREEMENTS, THE LATEST, AS PREVIOUSLY MENTIONED
COVERING THE PERIOD 1969 TO 1971.
THE SPECIFIC PRODUCTION CONTROLLERS AND ELECTRONIC TECHNICIANS SOUGHT
BY THE PETITIONER ARE ASSIGNED TO THE PRODUCTION ENGINEERING DEPARTMENT
WHICH HAS FIVE DIVISIONS: (1) PLANT ENGINEERING; (2) OPERATIONS
ANALYSIS; (3) METHODS AND STANDARDS; (4) INDUSTRIAL PLANNING; AND (5)
PLANT SERVICES. THE EMPLOYEES IN THESE CLASSIFICATIONS ARE ALL LOCATED
IN ONLY ONE OF THE DIVISIONS-- OPERATIONS ANALYSIS. THIS DIVISION HAS
THREE BRANCHES. WHILE THERE ARE ABOUT 210 NONSUPERVISORY EMPLOYEES IN
THE OPERATIONS ANALYSIS DIVISION, APPROXIMATELY 35 ARE IN THE
CLASSIFICATIONS SOUGHT BY THE PETITIONER, WITH 30 BEING PRODUCTION
CONTROLLERS AND 5 ELECTRONIC TECHNICIANS, INCLUDED, OF COURSE, IN EITHER
THE INTERVENOR'S CURRENT UNIT OR THE THIRD LABOR ORGANIZATION'S UNIT, IS
APPROXIMATELY 110, WITH SOME OF THE ELECTRONIC TECHNICIANS BEING LOCATED
IN THE PLANT ENGINEERING DIVISION OF THE PRODUCTION ENGINEERING
DEPARTMENT.
IN ITS CAPACITY AS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR THE
LARGEST NUMBER OF THE ACTIVITY'S EMPLOYEES, THE INTERVENOR MAINTAINS AN
OFFICE, PROVIDED BY THE ACTIVITY, AT THE FACILITY WHICH IS OPEN
CONSTANTLY AND STAFFED DURING WORKING HOURS. THE INTERVENOR HAS 10
UNION OFFICERS AND ABOUT 43 STEWARDS, WITH ITS PRESIDENT WORKING
FULL-TIME ON UNION BUSINESS IN THE OFFICE. MOREOVER, FROM 11:00 A.M.
ON, THE CHIEF STEWARD ALSO WORKS EACH DAY IN THIS OFFICE. THE OFFICE
HAS TWO TELEPHONES WITH PUBLICLY LISTED NUMBERS, AND EMPLOYEES ARE
PERMITTED TO CALL THIS OFFICE FROM THEIR RESPECTIVE WORK STATIONS ABOUT
ANY WORK-RELATED PROBLEMS, IN ADDITION TO BEING ABLE TO TALK PERSONALLY
WITH THE UNION STEWARD OR OFFICER ASSIGNED TO THEIR FACILITY LOCATION OR
TO GO, IN PERSON, TO THE INTERVENOR'S OFFICE.
THE WORK STATION FOR THE EMPLOYEES SOUGHT HEREIN IS IN A BUILDING
CONNECTED WITH THE BUILDING HOUSING THE INTERVENOR'S OFFICE. FOUR
MINUTES' WALKING-TIME IS THE ESTIMATED DISTANCE BETWEEN THE TWO
LOCATIONS. THERE ARE ALSO TWO TELEPHONES IN THE OPERATIONS ANALYSIS
DIVISION WHICH ITS EMPLOYEES MAY USE TO CALL THE OFFICE AND, AT PRESENT,
THERE IS A UNION STEWARD ASSIGNED TO THE DIVISION. /6/ THE RECORD
REVEALS THAT NO EMPLOYEE IN THIS DIVISION EVER SPECIFICALLY REQUESTED A
STEWARD FOR THE AREA, EXPRESSED A DESIRE TO BE A STEWARD, OR EVEN TO BE
AN OFFICER OF THE INTERVENOR.
THE INTERVENOR MAINTAINS OTHER LINES OF COMMUNICATION WITH ITS
MEMBERS AND THE EMPLOYEES IT REPRESENTS. IT HAS ACCESS TO BULLETIN
BOARDS, AND CONSISTENTLY POSTS NOTICES AND INFORMATION ABOUT UNION
MATTERS. IT ALSO MAINTAINS CONTACT WITH STEWARDS THROUGH THE
DISTRIBUTION OF FLYERS. FURTHER, THE INTERVENOR'S PRESIDENT TESTIFIED
THAT HE MAKES A POINT OF WALKING AROUND ALL PARTS OF THE ACTIVITY, WHERE
THE UNION REPRESENTS EMPLOYEES, ONCE A WEEK. HE SPEAKS NOT ONLY TO
EMPLOYEES-- SOMETIMES REFERRING A SPECIFIC PROBLEM THEY MENTION TO HIM
TO THE NEAREST STEWARD OR UNION OFFICER FOR POSSIBLE SETTLEMENT AT THAT
IMMEDIATE LEVEL FIRST-- BUT ALSO TO STEWARDS AND OFFICERS. THE
TESTIMONY REVEALS THAT HE HAS ALWAYS INCLUDED THE OPERATIONS ANALYSIS
DIVISION IN THIS PROCEDURE AND HAS TALKED WITH ITS EMPLOYEES.
INFORMAL GRIEVANCES, NAMELY PROBLEMS HANDLED IN UNWRITTEN FORM, ARE
PRESENTED TO THE ACTIVITY BY THE INTERVENOR'S STEWARDS OR OFFICERS,
WHEREAS FORMAL WRITTEN GRIEVANCES ARE HANDLED BY ITS OFFICERS. THE
EVIDENCE ESTABLISHES THAT THE INTERVENOR HAS RESOLVED BOTH INFORMAL AND
FORMAL GRIEVANCES WITH THE ACTIVITY WHICH HAVE HAD A DIRECT EFFECT ON
ALL OF ITS UNIT EMPLOYEES. SINCE 1966, THOUGH, NO FORMAL GRIEVANCE EVER
WAS INITIATED BY THE OPERATIONS ANALYSIS DIVISION EMPLOYEES. HOWEVER,
WHILE NO FORMAL GRIEVANCES HAVE BEEN PROCESSED BY THE INTERVENOR FOR
PRODUCTION CONTROLLERS OR ELECTRONIC TECHNICIANS IN THIS DIVISION, THE
DIVISION HEAD TESTIFIED THAT, APPROXIMATELY FOUR TO SIX TIMES A YEAR,
THESE EMPLOYEES HAVE COME TO HIM PERSONALLY, AND THEY HAVE, TOGETHER,
SETTLED PROBLEMS SATISFACTORILY ON AN INDIVIDUAL BASIS. THE DIVISION
HEAD FURTHER STATED THAT NO DIVISION EMPLOYEE EVER COMPLAINED THAT THE
INTERVENOR HAD REFUSED TO REPRESENT HIM. FURTHER, THERE WAS NO EVIDENCE
THAT DIVISION EMPLOYEES HAVE COMMUNICATED TO THE INTERVENOR THAT THEY
DESIRED ITS ASSISTANCE IN RESOLVING A PROBLEM. /7/
DESPITE THE FACT THAT THERE ARE, INDEED, SEVERAL SMALL UNITS IN
EXISTENCE AT THIS ACTIVITY, IN MY VIEW, THE NATURE OF THE ACTIVITY'S
PAST COLLECTIVE-BARGAINING HISTORY AND THE RECORD BEFORE ME CLEARLY
DEMONSTRATE THAT IT WOULD NOT EFFECTUATE THE POLICIES OF THE ORDER TO
FIND THE REQUESTED UNIT APPROPRIATE.
INITIALLY, IT SHOULD BE NOTED THAT ALL OF THE UNIT FRAGMENTATION AT
THIS FACILITY TOOK PLACE BEFORE EXECUTIVE ORDER 11491 BECAME EFFECTIVE.
SINCE THAT TIME, MY VIEWS CONCERNING THE SEVERANCE OF A SMALL GROUP OF
EMPLOYEES FROM AN EXISTING OVERALL UNIT WITH A PRIOR BARGAINING HISTORY
HAVE BEEN STATED IN SEVERAL PREVIOUS DECISIONS AND CONSISTENTLY ADHERED
TO. ESSENTIALLY, THIS IS THE ISSUE IN THIS CASE BECAUSE NOTWITHSTANDING
SIX OTHER SMALL UNITS, THE INTERVENOR HAS TO BE REGARDED, IN ALMOST ALL
RESPECTS, AS REPRESENTING AN OVERALL UNIT BECAUSE IT FAR OUTNUMBERS THE
OTHER UNITS IN ITS COVERAGE. THUS, "WHERE THE EVIDENCE SHOWS THAT AN
ESTABLISHED, EFFECTIVE AND FAIR COLLECTIVE BARGAINING RELATIONSHIP IS IN
EXISTENCE, A SEPARATE UNIT CARVED OUT OF THE EXISTING UNIT WILL NOT BE
FOUND TO BE APPROPRIATE EXCEPT IN UNUSUAL CIRCUMSTANCES." UNITED STATES
NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8.
I DO NOT CONSIDER THE FACT OF SEVEN CURRENT COLLECTIVE-BARGAINING
REPRESENTATIVES AT THE ACTIVITY TO CONSTITUTE AN "UNUSUAL CIRCUMSTANCE"
IN THIS SITUATION FOR THE REASON STATED ABOVE CONCERNING THE TIMING OF
THEIR INITIAL RECOGNITION. MOREOVER, THE EVIDENCE SHOWS THAT THE
INTERVENOR HAS BEEN ESTABLISHED AS THE BARGAINING REPRESENTATIVE FOR THE
REQUESTED EMPLOYEES FOR SIX YEARS, AND THAT DURING THIS PERIOD THERE IS
NO EVIDENCE THAT IT HAS BEEN INEFFECTIVE AND UNFAIR IN ITS DEALINGS WITH
THESE EMPLOYEES.
FURTHER, THERE IS NO EVIDENCE TO SHOW ANY KIND OF CHANGED
CIRCUMSTANCE WHICH MIGHT HAVE DESTROYED THE COMMUNITY OF INTEREST
BETWEEN THE EMPLOYEES SOUGHT AND THE REMAINDER OF THE EMPLOYEES IN THE
INTERVENOR'S UNIT TO WARRANT A CARVE-OUT. IN ALL, THE INTERVENOR HAS
NOT BEEN SHOWN TO BE REMISS IN REPRESENTING THE EMPLOYEES IN THE CLAIMED
UNIT, AS THE NEED ARISES, AND ON AN EQUAL FOOTING WITH OTHER UNIT
EMPLOYEES. IF THE OPERATIONS ANALYSIS DIVISION PRODUCTION CONTROLLERS
AND ELECTRONIC TECHNICIANS HAVE NOT TAKEN FULL ADVANTAGE OF THE
OPPORTUNITY AFFORDED THEM TO PARTICIPATE IN AND UTILIZE THE INTERVENOR'S
REPRESENTATIONAL PROCEDURES, THIS IS A MATTER WHICH CANNOT BE HELD
AGAINST THE INTERVENOR. WHAT IS SIGNIFICANT IS THAT THE DOOR HAS ALWAYS
BEEN OPEN FOR THEM TO DO SO.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE UNIT SOUGHT BY THE
PETITIONER IS INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION,
AND SHALL, THEREFORE, DISMISS THE PETITION.
IT IS ORDERED THAT THE PETITION IN CASE NO. 31-5475(RO) BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 30, 1972
/1/ THE FOLLOWING SEVEN LABOR ORGANIZATIONS REPRESENT THE ACTIVITY'S
EMPLOYEES (UNIT SIZE IS INDICATED AS OF JUNE 16, 1927): (1) NATIONAL
ASSOCIATION OF GOVERNMENT INSPECTORS AND QUALITY ASSURANCE PERSONNEL,
UNIT NO. 7, (DATE OF EXCLUSIVE RECOGNITION) SEPTEMBER 6, 1963, 70
EMPLOYEES; (2) QUONSET POINT AERONAUTICAL PRODUCTION CONTROLLERS
ASSOCIATION, LOCAL 1, OCTOBER 6, 1965, 102 EMPLOYEES; (3) THE DIRECTLY
AFFILIATED LOCAL UNION NO. 3034, TRUCKERS, AFL-CIO, MAY 5, 1966, 9
EMPLOYEES; (4) NATIONAL ASSOCIATION OF PLANNERS & ESTIMATORS &
PROGRESSMEN, LOCAL NO. 18, JUNE 21, 1966, 14 EMPLOYEES; (5)
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LODGE 616,
AUGUST 15, 1966, 160 EMPLOYEES; (6) NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-7, DECEMBER 12, 1966, 1,964 EMPLOYEES; (7) QUONSET
POINT METHODS AND STANDARDS ANALYSIS ASSOCIATION, SEPTEMBER 9, 1969, 23
EMPLOYEES.
/2/ NO ALLEGATION IS MADE THAT THIS AGREEMENT CONSTITUTES A BAR TO
THE INSTANT REPRESENTATION PETITION.
/3/ THESE PRODUCTION CONTROLLERS, LOCATED IN A SEPARATE DEPARTMENT
FROM THAT OF THE PRODUCTION CONTROLLERS INVOLVED HEREIN, ARE REPRESENTED
BY THE QUONSET POINT AERONAUTICAL PRODUCTION CONTROLLERS ASSOCIATION,
LOCAL 1. ITS NEGOTIATED AGREEMENT WITH THE ACTIVITY SPECIFICALLY
EXCLUDES THE INSTANT PRODUCTION CONTROLLERS, WHO ARE LEFT AS PART OF THE
INTERVENOR'S UNIT.
/4/ IN THIS REGARD, THE EVIDENCE REVEALS THAT THE PRODUCTION
CONTROLLERS IN THE PRODUCTION PLANNING AND CONTROL DEPARTMENT HAVE
DIFFERENT POSITION DESCRIPTIONS FROM THOSE OF THE EMPLOYEES IN THE
PRODUCTION ENGINEERING DEPARTMENT, AND THEY ARE LISTED ON A SEPARATE
RETENTION REGISTER BY THE CIVIL SERVICE COMMISSION. IT IS CONTENDED
THAT SUCH A COMBINATION, TOO, WOULD IGNORE THE COMMONALITY SHARED BY THE
PRODUCTION ENGINEERING DEPARTMENT'S ELECTRONIC TECHNICIANS AND ITS
PRODUCTION CONTROLLERS.
/5/ PRIOR TO 1966, BOTH THE INTERVENOR AND THE PETITIONER HAD
INFORMAL RECOGNITIONS AT THIS FACILITY.
/6/ THE ASSIGNMENT OF A UNION STEWARD OCCURRED SOMETIME IN 1971.
PRIOR THERETO, NO STEWARD WAS PLACED IN THIS PARTICULAR DIVISION;
HOWEVER, FIVE UNION STEWARDS DID FUNCTION IN THE DEPARTMENT AND WERE
READILY AVAILABLE TO DIVISION EMPLOYEES. THE INTERVENOR NORMALLY TRIES
TO ALLOCATE A STEWARD FOR EVERY 50 EMPLOYEES WHILE ALSO MAKING USE OF
UNION OFFICERS FOR EMPLOYEE RELATIONS PURPOSES.
/7/ THE PARTIES STIPULATED THAT, IN MAY 1971, THE INTERVENOR DID
ASSIST A SECRETARY IN THE DIVISION WITH AN INFORMAL GRIEVANCE MATTER
EVEN THOUGH HER JOB CLASSIFICATION WAS NOT INCLUDED IN ITS UNIT.
2 A/SLMR 214; P. 523; CASE NO. 42-1505(CA-26); OCTOBER 30, 1972.
INTERNAL REVENUE SERVICE,
OFFICE OF THE DISTRICT DIRECTOR,
JACKSONVILLE DISTRICT,
JACKSONVILLE, FLORIDA
A/SLMR NO. 214
THIS PROCEEDING AROSE AS A RESULT OF AN UNFAIR LABOR PRACTICE
COMPLAINT FILED BY THE NATIONAL ASSOCIATION OF INTERNAL REVENUE
EMPLOYEES, JACKSONVILLE DISTRICT JOINT COUNCIL AND THE NATIONAL
ASSOCIATION OF INTERNAL REVENUE EMPLOYEES (NAIRE). THE COMPLAINT
ALLEGED THAT THE RESPONDENT VIOLATED SECTION 19(A)(6) OF THE EXECUTIVE
ORDER BY REFUSING, UPON REQUEST, TO FURNISH NAIRE WITH THE HOME
ADDRESSES OF ALL EMPLOYEES IN THE BARGAINING UNIT FOR WHICH NAIRE HAD
BEEN DULY CERTIFIED AS EXCLUSIVE BARGAINING REPRESENTATIVE. IN DENYING
THAT IT HAD VIOLATED THE EXECUTIVE ORDER, THE RESPONDENT CONTENDED THAT
NAIRE WAS NOT ENTITLED TO THE HOME ADDRESSES OF THE UNIT EMPLOYEES FOR
TWO PRINCIPAL REASONS: (1) THE HOME ADDRESSES OF THE UNIT EMPLOYEES
WERE NOT NECESSARY AND RELEVANT TO THE FULFILLMENT OF NAIRE HAD ADEQUATE
MEANS BY WHICH IT COULD COMMUNICATE EFFECTIVELY WITH UNIT EMPLOYEES;
AND (2) ASSUMING THAT NAIRE HAD DEMONSTRATED THAT THE ADDRESSES OF THE
UNIT EMPLOYEES WERE RELEVANT AND NECESSARY TO FULFILLING ITS BARGAINING
OBLIGATIONS, THE REGULATIONS OF THE CIVIL SERVICE COMMISSION PRECLUDED
THE ASSISTANT SECRETARY FROM ORDERING THE RELEASE OF SUCH HOME ADDRESSES
TO NAIRE. THE UNITED STATES CIVIL SERVICE COMMISSION, WHICH WAS
PERMITTED TO INTERVENE IN THE PROCEEDINGS, JOINED THE RESPONDENT IN THE
LATTER CONTENTION.
UPON THE COMPLETION OF THE HEARING AND THE FILING OF BRIEFS BY ALL OF
THE PARTIES INVOLVED, THE HEARING EXAMINER ISSUED A REPORT AND
RECOMMENDATIONS DISMISSING THE COMPLAINT IN ITS ENTIRETY.
EXCEPTIONS AND SUPPORTING BRIEF WERE FILED BY THE COMPLAINANT WITH
THE ASSISTANT SECRETARY WHO, AFTER CONSIDERING THE ENTIRE RECORD,
ADOPTED THE HEARING EXAMINER'S RECOMMENDATIONS.
THE EVIDENCE REVEALED THAT THE BARGAINING UNIT IF COMPOSED OF 19
SEPARATE POSTS OF DUTY SCATTERED THROUGHOUT THE STATE OF FLORIDA. IT
FURTHER REVEALED THAT A SUBSTANTIAL NUMBER OF THE UNIT EMPLOYEES SPEND
FROM ABOUT 50 TO 90 PERCENT OF THEIR WORK TIME ON FIELD ASSIGNMENTS AND
THAT LESS THAN HALF THE BARGAINING UNIT EMPLOYEES ARE MEMBERS OF NAIRE.
IN THIS CONTEXT, NAIRE CLAIMS THAT THE HOME ADDRESSES OF THE UNIT
EMPLOYEES ARE ESSENTIAL FOR IT TO BE ABLE TO COMMUNICATE EFFECTIVELY
WITH THE UNIT EMPLOYEES.
IT WAS CONCLUDED THAT NAIRE HAD FAILED TO ESTABLISH THAT IT LACKED AN
EFFECTIVE MEANS OF COMMUNICATING WITH EMPLOYEES IN THE BARGAINING UNIT.
THUS, THE EVIDENCE REVEALED THAT UNDER THE PROVISIONS OF THE PARTIES'
CURRENT NEGOTIATED AGREEMENT NAIRE HAD THE RIGHT TO DISTRIBUTE
LITERATURE WITHIN RESPONDENT'S OFFICES DURING NON-DUTY HOURS; THE RIGHT
TO USE SPACE ON THE RESPONDENT'S PREMISES FOR MEETINGS WITH UNIT
EMPLOYEES DURING LUNCH HOURS AND AFTER HOURS; AND THE RIGHT TO USE
BULLETIN BOARD SPACE ON RESPONDENT'S PREMISES. THE EVIDENCE FURTHER
REVEALED THAT RESPONDENT HAD AGREED TO FURNISH NAIRE WITH A QUARTERLY
LIST CONTAINING THE NAMES AND POSITIONS OF ALL UNIT EMPLOYEES AND TO
PROVIDE EACH NEW EMPLOYEES WITH A NAIRE SELF-ADDRESSED AND POSTAGE-PAID
CARD SO THAT THE NEW EMPLOYEE COULD ADVISE NAIRE OF HIS HOME ADDRESS.
MOREOVER, IT WAS ESTABLISHED THAT NAIRE HAD MADE NO ATTEMPTS TO USE ALL
OF THE COMMUNICATION CHANNELS AVAILABLE TO IT AND THAT ALTHOUGH IT HAD
AT LEAST ONE STEWARD AT EACH DUTY POST, IT HAD NOT ATTEMPTED TO HAVE ITS
STEWARDS SOLICIT THE HOME ADDRESSES OF THE UNIT EMPLOYEES.
IN VIEW OF THE BASIS FOR HIS DECISION IN THIS MATTER, THE ASSISTANT
SECRETARY FOUND IT UNNECESSARY TO CONSIDER OTHER ISSUES RAISED IN THE
CASE, INCLUDING THE ISSUE AS TO WHETHER CIVIL SERVICE REGULATIONS
PROHIBITED THE ASSISTANT SECRETARY FROM DIRECTING THE RESPONDENT TO
FURNISH NAIRE WITH THE REQUESTED EMPLOYEE ADDRESSES.
INTERNAL REVENUE SERVICE,
OFFICE OF THE DISTRICT DIRECTOR,
JACKSONVILLE DISTRICT,
JACKSONVILLE, FLORIDA,
AND
NATIONAL ASSOCIATION OF INTERNAL
REVENUE EMPLOYEES, JACKSONVILLE
DISTRICT JOINT COUNCIL AND THE
NATIONAL ASSOCIATION OF INTERNAL
REVENUE EMPLOYEES
AND
UNITED STATES CIVIL SERVICE COMMISSION
ON MAY 19, 1972, HEARING EXAMINER FRANK H. ITKIN ISSUED HIS REPORT
AND RECOMMENDATIONS IN THE ABOVE ENTITLED PROCEEDING FINDING THAT THE
RESPONDENT, INTERNAL REVENUE SERVICE, OFFICE OF THE DISTRICT DIRECTOR,
JACKSONVILLE DISTRICT, HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS
TO THE HEARINGS EXAMINER'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE ENTIRE RECORD IN
THIS CASE, /1/ INCLUDING THE EXCEPTIONS AND A SUPPORTING BRIEF FILED BY
THE COMPLAINANT, I HEREBY ADOPT THE FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF THE HEARING EXAMINER. /2/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 42-1505(CA-26)
BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 30, 1972
/1/ IN VIEW OF MY DECISION HEREIN, I FIND IT UNNECESSARY TO CONSIDER
THE CONTENTION OF THE INTERVENOR, UNITED STATES CIVIL SERVICE
COMMISSION, THAT THE ASSISTANT SECRETARY IS BARRED BY CERTAIN CIVIL
SERVICE COMMISSION REGULATIONS, AS CLARIFIED IN THE FEDERAL PERSONNEL
MANUAL, FROM ORDERING THE RESPONDENT TO FURNISH THE COMPLAINANT WITH THE
ADDRESSES OF THE EMPLOYEES IN THE BARGAINING UNIT. MY DECISION HEREIN
SHOULD NOT BE CONSTRUED TO MEAN THAT I NECESSARILY AGREE WITH THE
CONTENTION OF THE INTERVENOR.
/2/ IN ADOPTING THE DECISION OF THE HEARING EXAMINER, IT WAS NOTED
THAT THE EVIDENCE REVEALED THAT THE COMPLAINANT HAS SEVERAL MEANS IN
WHICH TO COMMUNICATE WITH THE UNIT EMPLOYEES, INCLUDING THE DISTRIBUTION
OF LITERATURE DURING NON-WORK TIME TO THE DESKS OF EMPLOYEES. HOWEVER,
I DO NOT ADOPT THE FINDING OF THE HEARING EXAMINER TO THE EXTENT THAT HE
IMPLIES THAT WHERE AN EXCLUSIVE BARGAINING REPRESENTATIVE HAS SEVERAL
DIFFERENT MEANS IN WHICH TO COMMUNICATE WITH THE EMPLOYEES IT
REPRESENTS, EACH OF WHICH ALONE MAY BE INADEQUATE TO PROVIDE EFFECTIVE
COMMUNICATION, THE CUMULATIVE EFFECT OF THE VARIOUS MEANS AVAILABLE MAY
NEVERTHELESS PROVIDE THE EXCLUSIVE REPRESENTATIVE WITH AN ADEQUATE MEANS
OF COMMUNICATING WITH UNIT EMPLOYEES.
INTERNAL REVENUE SERVICE
OFFICE OF THE DISTRICT DIRECTOR
JACKSONVILLE DISTRICT
JACKSONVILLE, FLORIDA
NATIONAL ASSOCIATION OF INTERNAL
REVENUE EMPLOYEES JACKSONVILLE
DISTRICT JOINT COUNCIL AND THE
NATIONAL ASSOCIATION OF INTERNAL
REVENUE EMPLOYEES
UNITED STATES CIVIL SERVICE
COMMISSION
ROBERT M. TOBIAS, ESQUIRE,
STAFF COUNSEL,
NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES,
SUITE 1100, 711 FOURTEENTH STREET N.W.
WASHINGTON, D.C. 20005, FOR COMPLAINANT.
G. JERRY SHAW, ESQUIRE, AND
ROBERT J. WILSON, ESQUIRE,
OFFICE OF CHIEF COUNSEL,
INTERNAL REVENUE SERVICE,
1111 CONSTITUTION AVENUE, N.W.
WASHINGTON, D.C. 20224, FOR RESPONDENT.
LOUIS ARONIN, ESQUIRE,
SPECIAL ASSISTANT TO THE DIRECTOR,
OFFICE OF LABOR-MANAGEMENT RELATIONS,
U.S. CIVIL SERVICE COMMISSION,
1900 E STREET, N.W.
WASHINGTON, D.C. 20415, FOR INTERVENOR.
BEFORE: FRANK H. ITKIN, HEARING EXAMINER.
THIS PROCEEDING ARISES UNDER EXECUTIVE ORDER 11491. IT WAS INITIATED
BY A COMPLAINT FILED ON MARCH 12, 1971, BY NATIONAL ASSOCIATION OF
INTERNAL REVENUE EMPLOYEES JACKSONVILLE DISTRICT JOINT COUNCIL AND THE
NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES (HEREIN, "NAIRE" OR
"THE COMPLAINANT"). THE COMPLAINT ALLEGES THAT INTERNAL REVENUE
SERVICE, OFFICE OF THE DISTRICT DIRECTOR, JACKSONVILLE DISTRICT,
JACKSONVILLE, FLORIDA (HEREIN, "IRS" OR "THE RESPONDENT"), VIOLATED
SECTION 19(A)(6) OF THE EXECUTIVE RODER BY REFUSING UPON REQUEST TO
FURNISH NAIRE WITH THE HOME ADDRESSES OF ALL EMPLOYEES IN THE BARGAINING
UNIT FOR WHICH NAIRE HAD BEEN DULY CERTIFIED AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE. ON AUGUST 20, 1971, A NOTICE OF HEARING ON THE
COMPLAINT WAS ISSUED BY THE ACTING REGIONAL ADMINISTRATOR FOR THE
ATLANTA REGION OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR. THE HEARING WAS CONDUCTED BEFORE ME ON
OCTOBER 14, 1971, AT JACKSONVILLE, FLORIDA. ALL PARTIES WERE
REPRESENTED BY COUNSEL /1/, WHO WERE AFFORDED FULL OPPORTUNITY TO ADDUCE
EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, SUBMIT ORAL ARGUMENT AND
FILE BRIEFS. /2/
UPON THE ENTIRE RECORD IN THIS MATTER, FROM MY OBSERVATION OF THE
WITNESSES, AND OTHER DUE CONSIDERATION OF THE BRIEFS FILED BY ALL
PARTIES, I MAKE THE FOLLOWING
ON APRIL 21, 1970, NAIRE, THE COMPLAINANT, WAS DULY CERTIFIED AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT INCLUDING "ALL
NON-SUPERVISORY PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES IN THE
JACKSONVILLE DISTRICT OF THE INTERNAL REVENUE SERVICE * * * ." THE
PARTIES THEREAFTER PARTICIPATED IN A NUMBER OF BARGAINING SESSIONS AND
ON DECEMBER 14, 1970, ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT.
ON JANUARY 8, 1971, COUNSEL FOR NAIRE SENT THE FOLLOWING LETTER TO THE
DISTRICT DIRECTOR:
I AM WRITING THIS LETTER ON BEHALF OF THE NAIRE JACKSONVILLE DISTRICT
JOINT COUNCIL TO REQUEST, IN ADDITION TO THE PRESENTLY SUPPLIED
INFORMATION CONCERNING EMPLOYEES OF THE JACKSONVILLE DISTRICT, ALL HOME
ADDRESSES OF THE EMPLOYEES INCLUDED IN THE UNIT OF EXCLUSIVE
RECOGNITION.
THE INFORMATION REQUESTED IS NECESSARY IN ORDER TO SOLICIT THE
EMPLOYEES' VIEWS ON FUTURE CONTRACT PROPOSALS AND PREFERENCES, TO INFORM
THE EMPLOYEES CONCERNING PRESENT BENEFITS RECENTLY NEGOTIATED, TO
ENCOURAGE PARTICIPATION IN THE POLICING AND ENFORCING OF THE COLLECTIVE
BARGAINING AGREEMENT, AND TO PLUMB THEIR THOUGHTS ON THE WISDOM OF UNION
SUPPORT OF VARIOUS LEGISLATIVE PROPOSALS.
AS YOU ARE WELL AWARE, THE EMPLOYEES IN THE JACKSONVILLE DISTRICT OF
THE INTERNAL REVENUE SERVICE ARE ASSIGNED TO TWENTY SEPARATE POSTS OF
DUTY MAKING PERSONAL CONTACT AT HOME VIRTUALLY IMPOSSIBLE.
WE BELIEVE THE REQUESTED INFORMATION IS NECESSARY AND RELEVANT TO THE
EFFECTIVE ADMINISTRATION OF THE PRESENT COLLECTIVE BARGAINING AGREEMENT.
THEREFORE, WE REQUEST THAT THE INFORMATION BE FORTHCOMING AT YOUR
EARLIEST CONVENIENCE.
ON JANUARY 27, 1971, THE DISTRICT DIRECTOR RESPONDED TO NAIRE'S
COUNSEL, AS FOLLOWS:
AS YOU RECALL, DURING THE NEGOTIATIONS WHICH ENDED DECEMBER 14, 1970,
WITH A SIGNED AGREEMENT, NAIRE REQUESTED A LIST OF EMPLOYEES CONTAINING
THE NAMES, POSITION TITLES, AND HOME ADDRESSES OF ALL EMPLOYEES IN THE
UNIT COVERED. IT WAS AGREED THAT WE WOULD PROVIDE NAIRE WITH THE NAMES,
POSITION TITLES, AND POSTS-OF-DUTY OF EMPLOYEES IN THE UNIT. IN RETURN,
NAIRE AGREED TO WITHDRAW THE DEMAND OF PROVIDING HOME ADDRESSES OF
EMPLOYEES. THIS ISSUE WAS RESOLVED DURING NEGOTIATIONS.
NAIRE WAS ALSO INFORMED THAT FEDERAL PERSONNEL MANUAL 294-C-2(3) AND
TREASURY PERSONNEL BULLETIN NO. 66-26 PROHIBIT PROVIDING THE INFORMATION
REQUESTED. THE FEDERAL PERSONNEL MANUAL STATES "AGENCIES SHOULD NOT
COMPLY WITH REQUESTS FROM EMPLOYEE ORGANIZATIONS FOR LISTS OF HOME
ADDRESSES OR HOME TELEPHONE NUMBERS OF EMPLOYEES."
SECTION 19(A)(6) OF THE EXECUTIVE ORDER PROVIDES THAT "AGENCY
MANAGEMENT SHALL NOT * * * REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH
A LABOR ORGANIZATION AS REQUIRED BY THIS ORDER." THE QUESTION PRESENTED
IS WHETHER, UNDER THE CIRCUMSTANCES PRESENT HERE, RESPONDENT IRS
VIOLATED SECTION 19(A)(6) BY REFUSING TO PROVIDE NAIRE WITH THE HOME
ADDRESSES OF ALL THE UNIT EMPLOYEES. NAIRE, RELYING PRINCIPALLY UPON
DECISIONS UNDER THE NATIONAL LABOR RELATIONS ACT, ARGUES INTER ALIA THAT
IRS VIOLATED ITS BARGAINING OBLIGATION UNDER THE EXECUTIVE ORDER BY
REFUSING TO FURNISH THE HOME ADDRESSES OF THE UNIT EMPLOYEES TO THEIR
COLLECTIVE BARGAINING AGENT /3/ THAT IRS HAS SHOWN NO REASONABLE
JUSTIFICATION FOR WITHHOLDING THE REQUESTED INFORMATION; AND THAT NAIRE
HAS NOT WAIVED ITS RIGHT TO INSTITUTE AND MAINTAIN THIS PROCEEDING
BECAUSE OF EVENTS ATTENDING AND RESULTING IN THE EXECUTION OF THE
COLLECTIVE BARGAINING AGREEMENT.
IRS ARGUES THAT NAIRE HAS FAILED TO ESTABLISH THAT HOME ADDRESSES OF
THE UNIT EMPLOYEES ARE NECESSARY AND RELEVANT TO THE FULFILLMENT OF
COMPLAINANT'S BARGAINING OBLIGATION; THAT, IN THIS RESPECT, NAIRE HAS
MORE THAN SUFFICIENT MEANS BY WHICH TO CONTACT UNIT EMPLOYEES; THAT THE
CASES DECIDED UNDER THE NLRA ARE NOT BINDING AND ARE FACTUALLY
DISTINGUISHABLE FROM THIS CASE; THAT BY FAILING TO UTILIZE THE
PROCEDURES PROVIDED IN SECTION 11(C)(4) OF THE EXECUTIVE ORDER
PERTAINING TO RESOLUTION OF NEGOTIABILITY DISPUTES, NAIRE IS NOW
PRECLUDED FROM MAINTAINING THIS COMPLAINT /4/ ; THAT NAIRE IN EFFECT
"BARGAINED AWAY" THE ISSUE OF HOME ADDRESSES AND HAS WAIVED THIS
ASSERTED RIGHT; THAT THE SPECIAL NATURE OF THE WORK OF IRS EMPLOYEES
PRECLUDES A REMEDY IN THIS CASE; THAT PROVIDING THE REQUESTED HOME
ADDRESSES "IS UNDULY BURDENSOME FOR THE RESPONDENT"; AND FINALLY THAT
CSC AND TREASURY REGULATIONS PROHIBIT THE RELEASE OF THIS REQUESTED
INFORMATION.
CSC IN TURN ARGUES, AS FOLLOWS:
TO SUMMARIZE, IT IS OUR CONTENTION: (1) THE CIVIL SERVICE
COMMISSION'S REGULATIONS CLEARLY PROHIBIT FEDERAL AGENCIES FROM
FURNISHING EMPLOYEE HOME ADDRESSES; (2) THESE REGULATIONS ARE IN
ACCORDANCE WITH THE FREEDOM OF INFORMATION ACT; (3) THE REGULATIONS
CARRY THE SAME WEIGHT AND EFFECT AS A STATUTE; (4) THE REGULATIONS ARE
MANDATORY AS COMPARED TO GUIDANCE ISSUED BY THE COMMISSION; (5) THE
ASSISTANT SECRETARY DOES NOT HAVE THE AUTHORITY UNDER THE ORDER TO
INVALIDATE A COMMISSION REGULATION; (6) THE CHARLESTON DECISION (A/SLMR
NO. 1) IS DISTINGUISHABLE BECAUSE THERE A BASIC RIGHT WAS INVOLVED,
I.E., THE RIGHT TO ORGANIZE, AS COMPARED TO THE ADMINISTRATION OF AN
AGREEMENT IN THE INSTANT CASE, WHICH IS NOT A BASIC RIGHT; (7) THE
SIGNIFICANT DIFFERENCES BETWEEN FEDERAL EMPLOYMENT AND PRIVATE SECTOR
EMPLOYMENT AS WELL AS THE DISSIMILAR NATURE OF LABOR-MANAGEMENT
RELATIONS BETWEEN THE TWO REQUIRE A NONAPPLICATION OF NLRB DOCTRINES.
THE ESSENTIALLY UNDISPUTED FACTS PERTAINING TO THESE AND RELATED
CONTENTIONS ARE SUMMARIZED BELOW.
II. NAIRE IS CERTIFIED AS BARGAINING AGENT FOR THE UNIT EMPLOYEES;
THE COMPOSITION AND
LOCATION OF UNIT PERSONNEL
RESPONDENT AGENCY IS THE OFFICE OF THE DISTRICT DIRECTOR,
JACKSONVILLE DISTRICT, INTERNAL REVENUE SERVICE. THE DISTRICT
DIRECTOR'S AUTHORITY AND RESPONSIBILITY FOR THE ADMINISTRATION OF THE
INTERNAL REVENUE CODE GENERALLY EXTENDS THROUGHOUT THE STATE OF FLORIDA.
COMPLAINANT NAIRE IS COMPOSED OF FIVE LOCAL CHAPTERS WHICH JOINED TO
FORM THE NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEE JACKSONVILLE
DISTRICT JOINT COUNCIL IN ORDER TO REPRESENT THE IRS EMPLOYEES IN THE
JACKSONVILLE DISTRICT.
ON APRIL 13, 1970, A REPRESENTATION ELECTION WAS CONDUCTED UNDER THE
EXECUTIVE ORDER. AS A RESULT, ON APRIL 21, 1970, NAIRE WAS CERTIFIED AS
THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT INCLUDING "ALL
NON-SUPERVISORY PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES IN THE
JACKSONVILLE DISTRICT OF THE INTERNAL REVENUE SERVICE" AND EXCLUDING
"MANAGEMENT OFFICIALS, SUPERVISORS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK, OTHER THAN IN A PURELY CLERICAL CAPACITY, GUARDS, AND
OTHERS AS DEFINED IN THE EXECUTIVE ORDER."
THE JACKSONVILLE DISTRICT IS COMPOSED OF 19 SEPARATE POSTS OF DUTY.
THE VARIOUS POSTS AND APPROXIMATE NUMBER OF UNIT EMPLOYEES AT EACH POST
ARE, AS FOLLOWS:
POST OF DUTY . . . UNIT EMPLOYEES
DAYTONA BEACH . . . 11
FT. LAUDERDALE . . . 71
FT. MYERS . . . 8
FT. PIERCE . . . 5
GAINESVILLE . . . 6
JACKSONVILLE . . . 274
KEY WEST . . . 1
LAKELAND . . . 21
MELBOURNE . . . 10
MIAMI . . . 227
OCALA . . . 4
ORLANDO . . . 51
PANAMA CITY . . . 9
PENSACOLA . . . 23
ST. PETERSBURG . . . 40
SARASOTA . . . 17
TALLAHASSEE . . . 16
TAMPA . . . 52
WEST PALM BEACH . . . 44
890
THE EMPLOYEES WORKING AT THESE 19 POSTS COMMUTE FROM SOME 89 SEPARATE
MUNICIPALITIES. /5/ THE GEOGRAPHIC DISTANCES BETWEEN THESE VARIOUS
POSTS ARE SHOWN IN IRS EXHIBIT 8.
THERE ARE APPROXIMATELY 600 PROFESSIONAL EMPLOYEES IN THE UNIT,
INCLUDING REVENUE AGENTS, REVENUE OFFICERS, ESTATE AND GIFT TAX
ATTORNEYS AND TAX AUDITORS. THERE ARE APPROXIMATELY 300
NON-PROFESSIONAL EMPLOYEES IN THE UNIT, INCLUDING CLERKS, TAXPAYER
SERVICE REPRESENTATIVES AND REVENUE REPRESENTATIVES. THEIR "GS" GRADES
RANGE FROM 2 THROUGH 13.
III. NAIRE REQUESTS THE NAMES AND ADDRESSES OF UNIT EMPLOYEES DURING
CONTRACT
NEGOTIATIONS; THE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT
PROVIDING NAIRE WITH
ACCESS TO THE UNIT EMPLOYEES
NAIRE ACKNOWLEDGES IN ITS BRIEF THAT IT FIRST REQUESTED THE HOME
ADDRESSES, AS WELL AS THE NAMES, OF ALL UNIT PERSONNEL DURING CONTRACT
NEGOTIATIONS. THUS, NAIRE PROPOSED THE FOLLOWING CONTRACTUAL CLAUSE:
ARTICLE X, SECTION 3 - EMPLOYEE LISTS
A. THE EMPLOYER AGREES TO FURNISH QUARTERLY TO THE UNION A LIST OF
EMPLOYEES WHICH SHALL
CONTAIN THE NAMES, POSITION TITLES, AND HOME ADDRESSES OF ALL
EMPLOYEES IN THE UNIT COVERED.
MANAGEMENT, IN TURN, PROPOSED THE FOLLOWING:
SECTION 3 - EMPLOYEE LISTS
A. THE EMPLOYER AGREES TO FURNISH QUARTERLY TO THE UNION FOR ITS
INTERNAL USE ONLY, A LIST
OF EMPLOYEES WHICH SHALL CONTAIN NAMES AND THE POSITION TITLES OF ALL
EMPLOYEES IN THE UNIT
COVERED SO LONG AS THE EMPLOYER RECEIVES SUCH A LIST FROM THE IRS
DATA CENTER.
THE PARTIES AGREED UPON IRS'S PROPOSAL AS QUOTED ABOVE. /6/
IN ADDITION TO THE FOREGOING, THE PARTIES AGREED UPON THE FOLLOWING
CONTRACTUAL PROVISIONS:
A. IT IS AGREED THAT, UPON ADVANCE REQUEST OF THE UNION, THE
EMPLOYER WILL PROVIDE MEETING SPACE FOR MEETINGS AFTER HOURS IF SUCH
SPACE IS AVAILABLE. IT IS AGREED THAT THE UNION WILL COMPLY WITH ALL
SECURITY AND HOUSEKEEPING RULES IN EFFECT AT THAT TIME AND PLACE.
B. THE EMPLOYER AGREES TO PROVIDE, UPON REQUEST, AND WHEN AVAILABLE,
MEETING SPACE FOR USE BY A UNION REPRESENTATIVE DESIGNATED BY AN
AGGRIEVED EMPLOYEE, AND THE AGGRIEVED EMPLOYEE, FOR THE PREPARATION OF
GRIEVANCES PURSUANT TO EITHER THE GRIEVANCE PROCEDURE CONTAINED HEREIN,
ADVERSE ACTIONS OR APPEALS DURING DUTY HOURS AS SET FORTH IN INTERNAL
REVENUE POLICY STATEMENT 1910-2.
C. A NAIRE NATIONAL REPRESENTATIVE UPON REASONABLE ADVANCE NOTICE
MAY VISIT JACKSONVILLE DISTRICT POSTS OF DUTY BETWEEN THE HOURS OF 11:30
A.M. AND 1:30 P.M. TO DISCUSS APPROPRIATE UNION BUSINESS WITH EMPLOYEES
WHO ARE MEMBERS OF THE UNIT PROVIDED SUCH DISCUSSIONS ARE DURING THE
NON-DUTY HOURS OF THE EMPLOYEE(S) INVOLVED AND TAKE PLACE IN NON-WORK
AREAS.
A. THE UNION AGREES THAT MATERIAL FURNISHED FOR POSTING ON THE
BULLETIN BOARD WILL NOT REFLECT ON OR ATTACK THE INTEGRITY OR MOTIVES OF
ANY INDIVIDUALS, OTHER UNIONS, AGENCIES OR ACTIVITIES OF THE FEDERAL
GOVERNMENT. THE UNION ACCEPTS RESPONSIBILITY FOR ADHERING TO THE
REQUIREMENTS OF TREASURY PERSONNEL MANUAL COVERING ANY MATERIAL POSTED
ON BULLETIN BOARDS. IN THE EVENT THE UNION FAILS TO ADHERE TO THE
FOREGOING AS DETERMINED BY THE EMPLOYER, THE EMPLOYER MAY REQUIRE THAT
ANY SUBSEQUENT ITEMS BE SUBMITTED BY THE UNION TO THE EMPLOYER FOR
REVIEW AND APPROVAL BEFORE POSTING.
B. THE EMPLOYER AGREES TO DESIGNATE ONE-FOURTH (1/4) OF EACH
OFFICIAL BULLETIN BOARD FOR THE EXCLUSIVE USE OF THE UNION UNDER A
PRINTED SUBJECT HEADING ENTITLED NAIRE, JACKSONVILLE DISTRICT COUNCIL,
WITH THE APPROPRIATE CHAPTER NUMBER.
C. DISTRIBUTION OF LITERATURE BY THE UNION IN THE OFFICES OF THE
DISTRICT WILL BE PERMITTED ONLY BEFORE AND AFTER SCHEDULED WORKING HOURS
OR DURING THE NON-DUTY HOURS OF THE EMPLOYEES DISTRIBUTING AND RECEIVING
IT.
THE EMPLOYER AGREES TO DISTRIBUTE TO EACH INCOMING EMPLOYEE WITHIN
THE UNIT FOR WHICH THE UNION IS THE EXCLUSIVE REPRESENTATIVE AN
ANNOUNCEMENT CARD FURNISHED BY THE UNION PRINTED AS FOLLOWS:
THE EXCLUSIVE EMPLOYEES' REPRESENTATIVE FOR ELIGIBLE EMPLOYEES IN THE
NON-SUPERVISORY UNIT IF JACKSONVILLE DISTRICT COUNCIL OF THE NATIONAL
ASSOCIATION OF INTERNAL REVENUE EMPLOYEES (COMMONLY KNOWN AS "NAIRE").
SO THAT NAIRE JACKSONVILLE DISTRICT COUNCIL MAY PROVIDE MAXIMUM SERVICE
TO EMPLOYEES, NAIRE INVITES YOU TO FURNISH THE FOLLOWING INFORMATION ON
THIS SELF-ADDRESSED AND POSTAGE-PAID CARD:
NAME: . . .
LAST . . . MIDDLE . . . FIRST
ADDRESS: . . .
NUMBER STREET . . . CITY . . . STATE
SS NO. . . . HOME PHONE: . . .
DIVISION: . . . BRANCH: . . .
NAIRE MEMBER: . . . YES: . . . NO: . . .
DUES PAID BY . . . WITHHOLDING: . . . CASH: . . .
NAIRE INSURANCE: . . . LIFE: . . . ACCIDENT: . . . INCOME: . . .
NAME OF SPOUSE: . . .
A. A COPY OF THIS AGREEMENT SHALL BE PRINTED AND GIVEN TO ALL
PRESENT AND FUTURE EMPLOYEES IN THE UNIT AND EMPLOYEES WILL BE ADVISED
BY THE EMPLOYER TO FAMILIARIZE THEMSELVES WITH THE CONTENTS OF THE
AGREEMENT. DURING THE ORIENTATION TRAINING PROVIDED TO NEWLY-HIRED
EMPLOYEES, A REPRESENTATIVE OF THE EMPLOYER WILL DISTRIBUTE INTERNAL
REVENUE SERVICE DOCUMENT NO. 5475, "EMPLOYEE-MANAGEMENT COOPERATION
PROGRAM," OR ANY SUCCESSOR DOCUMENT, AND VERBALLY EXPLAIN THE UNION'S
STATUS AS EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN THE UNIT. IN
ADDITION, THE EMPLOYER WILL ANNOUNCE THAT A UNION REPRESENTATIVE IS
AVAILABLE TO ANSWER QUESTIONS DURING NON-DUTY HOURS.
B. THE EMPLOYER WILL PROVIDE 100 COPIES OF THE PUBLISHED AGREEMENT
TO THE UNION.
THE AGREEMENT FURTHER PROVIDES (ARTICLE VI, SECTION 2) THAT THE
EMPLOYER "AGREES TO RECOGNIZE NOT MORE THAN 22 EMPLOYEES DESIGNATED BY
THE UNION AS REPRESENTATIVES." THERE ARE PRESENTLY 22 SUCH STEWARDS, AT
LEAST ONE FOR EACH OF THE 19 POSTS OF DUTY. THE LARGER POSTS HAVE TWO
STEWARDS. THE RATIO OF UNION REPRESENTATIVES OR STEWARDS TO UNIT
EMPLOYEES IS THEREFORE APPROXIMATELY ONE REPRESENTATIVE OR STEWARD TO 40
EMPLOYEES.
ORVILLE W. GUINN TESTIFIED AT LENGTH WITH RESPECT TO NAIRE'S ACCESS
TO UNIT EMPLOYEES. GUINN PREVIOUSLY SERVED AS PRESIDENT OF
COMPLAINANT'S LOCAL CHAPTER IN JACKSONVILLE AND PRESENTLY IS SERVING AS
CHAIRMAN OF THE JACKSONVILLE DISTRICT JOINT COUNCIL. GUINN, IN ADDITION
TO RELATING GENERALLY THE ESSENTIALLY UNDISPUTED FACTUAL MATTER RECITED
SUPRA, EXPLAINED THAT COMPLAINANT HAS ABOUT 427 ACTIVE MEMBERS AND ABOUT
HALF OF THE ACTIVE MEMBERS ARE EMPLOYED AT THE JACKSONVILLE POST OF
DUTY. GUINN FURTHER EXPLAINED THAT COMPLAINANT PUBLISHES A NEWSPAPER
("FLEMCO"), COPIES OF WHICH ARE MAILED TO THE HOMES OF MEMBERS AND
GENERALLY MADE AVAILABLE FOR EMPLOYEES TO "PICK UP" AT THEIR DUTY
STATION IN JACKSONVILLE. /7/
GUINN TESTIFIED THAT THE CURRENT COLLECTIVE BARGAINING AGREEMENT
PROVIDES FOR CONSULTATION BETWEEN THE PARTIES, BUT ONLY FIVE UNION
REPRESENTATIVES ARE PERMITTED TO ATTEND SUCH SESSIONS. (SEE EXH. U-1,
ART. XXI, PP. 22-23.) GUINN, REFERRING TO THE GRIEVANCE PROVISIONS IN
THE AGREEMENT (EXH. U-1, ART, X, ART. XVIII, PP. 8, 16-20), TESTIFIED
THAT THE AGREEMENT DOES NOT ALLOW THE UNION'S ADMINISTRATIVE PERSONNEL
COMPENSABLE TIME TO INVESTIGATE A GRIEVANCE PRIOR TO THE ACTUAL FILING
OF SUCH GRIEVANCE. FURTHER, GUINN RELATED THAT THE COMPLAINANT DOES NOT
HAVE THE RIGHT TO MAKE DISTRIBUTION TO PERSONNEL THROUGH THE IRS
MAILROOM FACILITIES IN THE JACKSONVILLE DISTRICT. AND, GUINN RELATED
THAT THERE IS NO METHOD FOR POLLING NON-MEMBERS AND, ASSERTEDLY, IT
WOULD BE "HELPFUL TO BE ABLE TO POLL THE MEMBERS AND NON-MEMBERS
CONCERNING PROPOSED" CONTRACTUAL PROVISIONS, THE SUBJECT MATTER OF
CONSULTATIONS AND RELATED TOPICS.
IN ADDITION, GUINN EXPLAINED THAT THE HEADQUARTERS FOR THE
JACKSONVILLE POST IS LOCATED WITHIN A FEDERAL BUILDING IN JACKSONVILLE
CONSISTING OF SOME TEN FLOORS; THAT UNIT PERSONNEL ARE SCATTERED ON A
NUMBER OF THE FLOORS; AND, IN GUINN'S VIEW, A MAJORITY OF THE PERSONNEL
IN THE BUILDING EAT THEIR LUNCH MEAL OUTSIDE OF THE FACILITY. FURTHER,
AS FOR UNION MEETINGS, GUINN RELATED THAT THE JACKSONVILLE CHAPTER HAS
QUARTERLY MEETINGS; HOWEVER, HE EXPLAINED THAT ONLY 13 MEMBERS IN FACT
ATTENDED THE LAST MEETING.
ON CROSS-EXAMINATION, GUINN ACKNOWLEDGED THAT DURING THE
ORGANIZATIONAL COMPAIGN RESULTING IN NAIRE'S CERTIFICATION, NAIRE
DISTRIBUTED COMPAIGN LITERATURE TO EMPLOYEES THROUGHOUT THE DISTRICT;
THAT THE UNION'S NATIONAL PRESIDENT OR OTHER REPRESENTATIVES VISITED
MOST OF THE POSTS AND HE OR THE OTHER NAIRE OFFICIALS CONDUCTED OFF-SITE
LUNCHEONS WITH EMPLOYEES; AND THAT DISTRIBUTION OF ORGANIZATIONAL
LITERATURE WAS PERMITTED ON THE PREMISES OF IRS FACILITIES. GUINN DID
NOT DISPUTE THE FACT THAT DISTRIBUTION OF ORGANIZATIONAL LITERATURE WAS
GENERALLY PERMITTED BEFORE DUTY HOURS, DURING LUNCH PERIODS AND AFTER
DUTY HOURS IN THE OFFICES AND ON THE DESKS OF THE EMPLOYEES AT THE
VARIOUS POSTS OF DUTY. GUINN ALSO RECALLED THAT SINCE EXECUTION OF THE
CONTRACT, THERE HAS ONLY BEEN ONE FORMAL CONSULTATION MEETING WITH
MANAGEMENT ON JUNE 29, 1971, AND THAT NO REQUEST WAS MADE AT THAT
MEETING FOR HOME ADDRESSES OF UNIT EMPLOYEES (SEE IRS EXH. 4, A SUMMARY
OF THE MINUTES OF THE CONSULTATION MEETING). /8/ GUINN TESTIFIED THAT
HE HAS NEVER REQUESTED USE OF IRS FACILITIES UNDER THE TERMS OF THE
AGREEMENT (SECTION 1, ART. X); THAT HE HAS RECEIVED LISTS OF EMPLOYEES
QUARTERLY PURSUANT TO SECTION 3, ART. X, OF THE AGREEMENT; THAT NAIRE
HAS RECEIVED IN THE MAIL ABOUT EIGHT OR TEN CARDS (IRS EXH. 5), REQUIRED
TO BE DISTRIBUTED TO NEW EMPLOYEES PURSUANT TO SECTION 4, ART. X. OF THE
AGREEMENT; THAT A COPY OF THE AGREEMENT HAS BEEN PROVIDED TO ALL
EMPLOYEES; AND THAT NAIRE GENERALLY MAY POST NOTICES ON BULLETIN BOARDS
PURSUANT TO SECTION 2, ART. X. AND, ALTHOUGH NAIRE MAY NOT USE THE
MAILROOM FACILITIES OF IRS, IT IN FACT NEVER REQUESTED DURING CONTRACT
NEGOTIATIONS THE RIGHT TO USE THESE FACILITIES. /9/
GUINN ACKNOWLEDGED THAT RESPONDENT HAS NEVER REFUSED TO MEET WITH
NAIRE; THAT IRS HAS APPROACHED LABOR RELATION PROBLEMS "IN THE SPIRIT
OF COOPERATION"; AND THAT IRS HAS NEVER "DONE ANYTHING TO OPPOSE THE
UNION ORGANIZATION OF ITS EMPLOYEES IN JACKSONVILLE." FURTHER, AS NOTED,
THERE IS ONE SHOP STEWARD AT EACH POST OF DUTY AND TWO AT THE LARGER
POSTS. GUINN HAS NEVER ASKED THESE REPRESENTATIVES TO SOLICIT HOME
ADDRESSES OF UNIT PERSONNEL WHO ARE NOT MEMBERS OF THE UNION.
JULIA KELTY, AN IRS REVENUE OFFICER, TESTIFIED FOR COMPLAINANT. SHE
RELATED THAT EXH. U-3, ENTITLED "THE BULLETIN BOARD", IS PUBLISHED BY
NAIRE FOR POSTING AND DISTRIBUTION AT THE VARIOUS DUTY STATIONS; THAT
ABOUT FOUR WEEKS PRIOR TO THIS HEARING SHE ASKED LEONARD CABE,
RESPONDENT'S CHIEF OF PERSONNEL, WHETHER U-3 COULD BE POSTED; AND THAT
CABE ASSERTEDLY TOLD HER THAT "HE WOULD RATHER I NOT POST IT." /10/
THEREAFTER, ACCORDING TO KELTY, SHE NEVER ASKED CABE FOR PERMISSION TO
POST ANYTHING AT HER DUTY POST. /11/ ON CROSS-EXAMINATION, KELTY WAS
UNSURE WHETHER EXH. U-3 WAS THE SPECIFIC SUBJECT OF HER DISCUSSION WITH
CABE OR, INSTEAD, WHETHER CABE WAS REFERRING TO SOME "LETTER." KELTY
ACKNOWLEDGED THAT CABE DID NOT "FORBID (HER) TO POST ANYTHING ON THE
BULLETIN BOARD," ALTHOUGH HE ASSERTEDLY "ASKED" HER NOT TO POST A
PARTICULAR DOCUMENT.
ALVIN MCDANIEL, AN IRS REVENUE OFFICER EMPLOYED AT JACKSONVILLE,
TESTIFIED FOR COMPLAINANT THAT HE SPENDS ONLY 10 TO 20 PERCENT OF HIS
WORKTIME IN THE OFFICE; THAT HE TRIES TO MAINTAIN A SCHEDULE OF BEING
PRESENT AT HIS POST OF DUTY ON MONDAYS AND FRIDAYS FOR AT LEAST A
PORTION OF EACH DAY IN ORDER TO MEET WITH TAXPAYERS; THAT HE SPENDS THE
REMAINING WORK TIME IN THE FIELD; THAT THERE ARE ABOUT 17 OTHER REVENUE
OFFICERS AT HIS POST OF DUTY AND "MOST OF THEM STAY OUT" AS HE DOES;
AND THAT ALL BUT TWO OF THE REVENUE OFFICERS AT HIS POST ARE NAIRE
MEMBERS.
NICHOLAS WEIDNER, AN IRS AGENT AT JACKSONVILLE, TESTIFIED THAT HE
SPENDS 50 PERCENT OF HIS TIME IN THE FIELD; THAT THERE ARE SEVEN OTHER
AGENTS IN HIS TEAM OR GROUP AND THEY FOLLOW SIMILAR SCHEDULES; THAT
OTHER AGENTS FOLLOW SIMILAR WORK SCHEDULES; THAT A PARTICULAR AGENT
ASSIGNED TO A SPECIAL AUDIT TEAM HAS COME INTO THE OFFICE TWO OR THREE
TIMES A MONTH DURING THE PAST TWO OR THREE YEARS; AND THAT THERE ARE A
TOTAL OF SOME 12 AUDIT TEAMS AT THE JACKSONVILLE POST.
FRED SCHILLING, AN IRS "SPECIAL AGENT" AT ORLANDO, TESTIFIED FOR
COMPLAINANT THAT EXH. U-3 WAS POSTED AT HIS STATION ON THE BULLETIN
BOARDS FOR "SEVERAL DAYS" UNTIL HE ASSERTEDLY "WAS TOLD TO TAKE IT OFF."
SCHILLING EXPLAINED THAT A MR. TROUBAUGH "TOLD (HIM) TO TAKE IT DOWN"
BECAUSE "HE HAD RECEIVED A TELEPHONE CALL FROM MR. LEONARD CABE (ASKING)
THAT (IT, THE BULLETIN), BE REMOVED." SCHILLING ALSO TESTIFIED THAT HE
IS LISTED IN AN ORLANDO CITY DIRECTORY FOR 1969 AND 1971 EVEN THOUGH HE
NEVER GAVE PERMISSION FOR SUCH A RELEASE; THAT, ASSERTEDLY, AN IRS
SECRETARY TOLD HIM THAT SHE HAD FURNISHED THIS INFORMATION TO THE
DIRECTORY; THAT HE THEREAFTER TOOK STEPS, PARTIALLY SUCCESSFUL, IN
STOPPING THIS PUBLICATION AND THAT HE COMPLAINED ABOUT THE PUBLICATION
TO HIS SUPERVISOR. /12/ SCHILLING FURTHER ACKNOWLEDGED THAT HE IS
EXECUTIVE VICE PRESIDENT OF NAIRE'S LOCAL CHAPTER; AND THAT PERSONNEL
HAVE "DISTRIBUTED (UNION) LITERATURE TO THE EMPLOYEES OF (HIS) POST OF
DUTY DURING NON-DUTY HOURS TO THE EMPLOYEES AT THE OFFICE."
LEONARD CABE, RESPONDENT'S CHIEF OF PERSONNEL AT JACKSONVILLE,
GENERALLY EXPLAINED THE ORGANIZATIONAL STRUCTURE AND COMPOSITION OF THE
JACKSONVILLE DISTRICT. HE TESTIFIED, INTER ALIA, THAT REVENUE OFFICERS
SPEND APPROXIMATELY 20 PERCENT OF THEIR WORKTIME IN THE OFFICE; THAT
VARIOUS REVENUE AGENTS SPEND APPROXIMATELY 30-50 PERCENT OF THEIR
WORKTIME IN THE OFFICE; THAT THERE ARE REVENUE AGENTS ON THE REVIEW
STAFF WHO SPEND ALL OF THEIR WORKTIME IN THE OFFICE; THAT THERE ARE
REVENUE AGENTS ON THE CONFERENCE STAFF WHO SPEND 50-60 PERCENT OF THEIR
WORKTIME IN THE OFFICE; THAT TAX ATTORNEYS SPEND 50-60 PERCENT OF THEIR
WORKTIME IN THE OFFICE; AND THAT A LARGE GROUP OF CLERICAL EMPLOYEES
SPEND ALL OF THEIR WORKTIME IN THE OFFICE. AS CABE STATED: " * * *
MOST OF THE PROFESSIONAL * * * EMPLOYEES THAT I MENTIONED GENERALLY COME
IN THE OFFICE ONCE OR TWICE DURING THE WEEK, DEFINITELY ON PAYDAY AND
DEFINITELY AT THE END OF THE MONTH FOR REPORTING PURPOSES, SO THEY ARE
IN THE OFFICE ON CERTAIN DAYS." AS NOTED, THERE ARE APPROXIMATELY 300
CLERICAL EMPLOYEES AND 600 PROFESSIONAL EMPLOYEES. THE WITNESS,
REFERRING TO JT. EXH. 4, EXPLAINED THAT THERE WAS FROM APRIL 1, 1970
THROUGH MARCH 31, 1971, A 9 PERCENT TURNOVER IN TECHNICAL PERSONNEL AND
A 20 PERCENT TURNOVER IN CLERICAL PERSONNEL.
CABE ACKNOWLEDGED THAT DURING THE ORGANIZATIONAL CAMPAIGN, NAIRE'S
REPRESENTATIVES WERE "ALLOWED TO DISTRIBUTE MATERIAL ON THE DESKS OF THE
OFFICE OF THE EMPLOYEES AT THE VARIOUS POSTS OF DUTY BEFORE * * * THEIR
DUTY HOURS, DURING LUNCHEON HOURS AND AFTER DUTY HOURS." CABE ALSO NOTED
THAT NAIRE HAS NOT UTILIZED THE VISITATION RIGHTS PROVIDED IN SECTION 1,
PART C, OF ARTICLE X OF THE AGREEMENT, ALTHOUGH DURING THE CAMPAIGN
NAIRE'S REPRESENTATIVES VISITED THE EMPLOYEES AT THEIR POSTS OF DUTY.
FURTHER, CABE IDENTIFIED EXHIBITS IRS 11 AND 12 WHICH EXPLAIN, INTER
ALIA, LOCATIONS AND USE OF BULLETIN BOARD FACILITIES. LIKEWISE, CABE
IDENTIFIED EXH. IRS 5 WHICH IS THE CARD FURNISHED TO NEW EMPLOYEES
PURSUANT TO SECTION 4 OF ARTICLE X OF THE AGREEMENT. CABE TESTIFIED
THAT MANAGEMENT HAS FURNISHED SOME 76 CARDS TO NEW EMPLOYEES SINCE THE
CARDS WERE FIRST SUPPLIED BY NAIRE. /13/
CABE ALSO IDENTIFIED EXH. IRS 14, A MANUAL SUPPLEMENT REFERRING TO
EMPLOYEE INFORMATION LISTS WHICH ARE PREPARED AND FURNISHED QUARTERLY.
IN ADDITION, CABE IDENTIFIED EXH. IRS 15, AN IRS MEMORANDUM DATED
JULY 30, 1971, WHICH STATES, IN PART:
UNDER NO CIRCUMSTANCES WILL ANY OFFICIAL OR EMPLOYEE FURNISH SUCH
ORGANIZATIONS (CITY DIRECTORY ORGANIZATIONS) INFORMATION CONCERNING
EMPLOYEES' HOME ADDRESSES, TELEPHONE NUMBERS, AND SEX IDENTIFICATION.
CABE EXPLAINED THAT IRS MANAGEMENT "HAS NEVER AUTHORIZED THE RELEASE
OF HOME ADDRESSES" OF ITS PERSONNEL. /14/
FINALLY, ROBERT L. METHENY, CHIEF OF THE IRS INTELLIGENCE DIVISION,
TESTIFIED, INTER ALIA, THAT SECTION 3 OF ARTICLE X OF THE AGREEMENT (AS
WELL AS THE OTHER RELATED PROVISIONS CONTAINED THEREIN AND DISCUSSED
ABOVE) WAS THE PRODUCT OF PROPOSALS AND COUNTERPROPOSALS MADE BY THE
PARTIES AT BARGAINING SESSIONS. SPECIFICALLY, AS FOR SECTION 3, THE
APPROVED LANGUAGE IN THE AGREEMENT IS ESSENTIALLY SIMILAR TO THE UNION'S
PROPOSAL EXCEPT, OF COURSE, FOR THE ELIMINATION OF THE REQUESTED HOME
ADDRESSES OF EMPLOYEES. METHENY ALSO RESTATED MANAGEMENT'S REASONS FOR
REFUSING TO DISCLOSE HOME ADDRESSES AND CITED TREASURY AND CSC AUTHORITY
IN SUPPORT OF MANAGEMENT'S POSITION. FURTHER, METHENY TESTIFIED AT
LENGTH WITH RESPECT TO A LARGE NUMBER OF ALLEGED THREATS AND ASSAULTS
AGAINST IRS PERSONNEL (SEE IRS EXHS. 31 AND 32) AND, IRS EXH. 33
INDICATES THE TOTAL IRS PERSONNEL IN JACKSONVILLE DISTRICT WHO HAVE
EITHER NO TELEPHONE OR MAINTAIN AN UNLISTED TELEPHONE. HOWEVER, METHENY
COULD NOT TELL US WHY VARIOUS IRS PERSONNEL DO NOT HAVE TELEPHONES OR,
IN SOME CASES, HAVE UNLISTED TELEPHONES; NOR COULD HE SHOW ANY
RELATIONSHIP BETWEEN THE REQUESTED DISCLOSURE OF HOME ADDRESSES OF UNIT
PERSONNEL TO THE CERTIFIED BARGAINING AGENT AND THE LARGE NUMBER OF
THREATS AND ASSAULTS UPON IRS PERSONNEL AT HOME, IN THE OFFICE, OR IN
THE FIELD. /15/
NAIRE, AS STATED, RELIES IN SUBSTANTIAL PART UPON DECISIONS UNDER THE
NATIONAL LABOR RELATIONS ACT IN SUPPORT OF ITS CLAIM FOR THE HOME
ADDRESSES OF ALL UNIT EMPLOYEES. ALTHOUGH "NOT CONTROLLING," DECISIONS
ISSUED UNDER THE NLRA CONCERNING THE SAME OR RELATED ISSUES SHOULD BE
TAKEN "INTO ACCOUNT." SEE CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, P.
3(1970). IN PRUDENTIAL INSURANCE CO OF AMERICA V. N.L.R.B., 412 F.2D
77, 81(C.A. 2, 1969), CERT. DENIED 396 U.S. 928, THE COURT STATED IN
PERTINENT PART, AS FOLLOWS:
IT IS NOW BEYOND QUESTION THAT THE DUTY TO BARGAIN IN GOOD FAITH
IMPOSED UPON THE EMPLOYER BY SEC. 8(A)(5) (OF THE NLRA) INCLUDES AN
OBLIGATION TO PROVIDE THE EMPLOYEES' STATUTORY BARGAINING REPRESENTATIVE
WITH INFORMATION THAT IS NECESSARY AND RELEVANT TO THE PROPER
PERFORMANCE OF ITS DUTIES. AND THIS OBLIGATION APPLIES WITH AS MUCH
FORCE TO INFORMATION NEEDED BY THE UNION FOR THE EFFECTIVE
ADMINISTRATION OF A COLLECTIVE BARGAINING AGREEMENT ALREADY IN FORCE AS
TO INFORMATION RELEVANT TO THE NEGOTIATION OF A NEW CONTRACT. /16/
THE COURT WENT ON TO STATE (ID. AT 83-84) THAT SINCE A UNION IS UNDER
A STATUTORY OBLIGATION TO REPRESENT NONMEMBER EMPLOYEES, AS WELL AS
MEMBERS, /17/ THE UNION MUST BE ABLE TO COMMUNICATE, NOT ONLY AT TIMES,
BUT ALSO WITH ALL UNIT EMPLOYEES. THE COURT CONCLUDED THAT SINCE "DATA
WITHOUT WHICH A UNION CANNOT EVEN COMMUNICATE WITH EMPLOYEES WHOM IT
REPRESENTS IS, BY ITS VERY NATURE, FUNDAMENTAL TO THE ENTIRE EXPANSE OF
A UNION'S RELATIONSHIP WITH THE EMPLOYEES," INFORMATION AS TO THE NAMES
AND ADDRESSES OF ALL EMPLOYEES IS DEEMED RELEVANT TO THE UNION'S
FUNCTION AS BARGAINING REPRESENTATIVE WITHOUT "ANY SPECIAL SHOWING OF
SPECIFIC RELEVANCE . . . " (IBID.)
UNDER THE PRUDENTIAL RATIONALE, SUPRA, 412 F.2D AT 81-83, RESOLUTION
OF THIS ISSUE TURNS ON THE FACTS OF EACH CASE-- NAMELY, WHETHER THE
RECORD ESTABLISHES THAT SUCH INFORMATION IS NECESSARY FOR THE UNION TO
COMMUNICATE WITH THE EMPLOYEES WHOM IT REPRESENTS. /18/ THUS, FOR
EXAMPLE, IN WESTERN AND SOUTHERN LIFE INSURANCE COMPANY, 188 NLRB NO. 76
(1971), THE LABOR BOARD APPROVED THE FOLLOWING ANALYSIS OF ITS EXAMINER:
THE BOARD, WITH COURT APPROVAL, HAS HELD THAT A COLLECTIVE-BARGAINING
REPRESENTATIVE IS ENTITLED, UPON REQUEST, TO RECEIVE FROM AN EMPLOYER
THE NAMES AND ADDRESSES OF THE EMPLOYEES IN THE BARGAINING UNIT IF IT
HAS NO OTHER EFFECTIVE MEANS OF COMMUNICATING WITH THEM. STANDARD OIL
COMPANY OF CALIFORNIA, WESTERN OPERATION, INC., 166 NLRB 343, ENFD. 379
F.2D 639(C.A. 9); PRUDENTIAL INSURANCE COMPANY, 173 NLRB NO. 117, ENFD.
412 F.2D 77(C.A. 2), CERT. DENIED 396 U.S. 938; SOUTHERN COUNTIES GAS
COMPANY OF CALIFORNIA, 174 NLRB NO. 11; GENERAL ELECTRIC COMPANY, 176
NLRB NO. 84. RESPONDENT CONTENDS THAT THE CITED CASES ARE
DISTINGUISHABLE FROM THE PRESENT CASE IN THAT THEY INVOLVE LARGE,
COMPLEX UNITS AND OTHER CIRCUMSTANCES NOT HERE PRESENT, SUCH AS
SCATTERED RESIDENCES, UNSUCCESSFUL ATTEMPTS TO REACH EMPLOYEES BY
HANDBILLING AND NO REASONABLE ACCESS TO EMPLOYEES AT THEIR PLACE OF
EMPLOYMENT. I NOTE, HOWEVER, THAT THE LABOR ORGANIZATIONS IN THE CITED
CASES WERE ESTABLISHED REPRESENTATIVES WITH A LONG HISTORY OF COLLECTIVE
BARGAINING WHO WERE UNABLE NEVERTHELESS TO COMMUNICATE EFFECTIVELY WITH
THE EMPLOYEES THEY REPRESENTED. AS A "NEW" REPRESENTATIVE, THE UNION
HAD NO ESTABLISHED LINES OF COMMUNICATION WITH THE AGENTS IT
REPRESENTED. THUS, IT HAD NO CONTRACT RIGHT TO BULLETIN BOARDS OR TO
COMMUNICATE WITH THE AGENTS ON RESPONDENT'S PREMISES. AND, AS THE
RECORD SHOWS THAT AGENTS WORK OUT OF THEIR HOMES AND REPORT BUT ONCE A
WEEK TO THEIR DISTRICT OFFICES, I FIND THAT HANDBILLING AND
INTER-EMPLOYEE CONTRACT WOULD NOT BE DEPENDABLE METHODS OF COMMUNICATION
WITH THE EMPLOYEES. FOR THESE REASONS, AND AS RESPONDENT CONCEDED THAT
IT COULD WITHOUT INCONVENIENCE SUPPLY THE UNION WITH THE NAMES AND
ADDRESSES OF THE EMPLOYEES IN THE BARGAINING UNITS, I FIND THAT IT
VIOLATED SECTION 8(A)(5) AND (1) OF THE ACT BY REFUSING TO SUPPLY THE
UNION WITH THIS INFORMATION.
AND SEE, UNITED AIRCRAFT CORP., 181 NLRB 892, 902-903(1970) (AND
CASES CITED), ENF'D., 434 F.2D 1198(C.A. 2, 1970), CERT. DEN., 401 U.S.
993.
RECENTLY, IN SHELL OIL COMPANY V. N.L.R.B., 79 LRRM 2997(C.A. 9,
1972), THE COURT, REVERSING THE LABOR BOARD, HELD THAT A COMPANY DID NOT
VIOLATE ITS BARGAINING OBLIGATION WHEN IT REFUSED TO COMPLY WITH A
UNION'S REQUEST FOR THE NAMES AND ADDRESSES OF ALL EMPLOYEES IN THE UNIT
REPRESENTED BY THE UNION. THE COURT (JUDGE BYRNE CONCURRING) STATED:
WE OBSERVE AT THE OUTSET OF THE DISCUSSION OF THE LEGAL ISSUES
INVOLVED THAT THE COMPANY HAS BEHAVED IN A REASONABLE AND CONCILIATORY
MANNER THROUGHOUT WHILE THE UNION HAS BEEN DEMANDING, ARROGANT, AND
INTRANSIGENT. IT WOULD BE MOST ANOMALOUS IF, UNDER THESE CIRCUMSTANCES,
WE WERE TO RATIFY THE BOARD'S DETERMINATION THAT THE COMPANY, RATHER
THAN THE UNION, REFUSED TO BARGAIN.
THE BOARD ASSERTS THAT ONCE INFORMATION IS SHOWN TO BE RELEVANT TO
THE UNION'S PERFORMANCE OF ITS ROLE AS BARGAINING REPRESENTATIVE, THIS
FIXES THE DUTY OF THE COMPANY TO PRODUCE AND ANY FAILURE TO PRODUCE IS
PER SE AN UNLAWFUL REFUSAL TO BARGAIN. HOWEVER, THIS IS NOT THE LAW.
RATHER:
"EACH CASE MUST TURN UPON ITS PARTICULAR FACTS. THE INQUIRY MUST
ALWAYS
BE WHETHER OR NOT UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE THE
STATUTORY OBLIGATION TO
BARGAIN IN GOOD FAITH HAS BEEN MET." N.L.R.B. V. TRUITT MANUFACTURING
CO., 351 U.S. 149,
153-54(1956).
CF. EMERYVILLE RESEARCH CENTER V. N.L.R.B., 441 F.2D 880 (9TH CIR.
1971).
SEVERAL RECENT CASES HAVE COMPELLED EMPLOYERS TO FURNISH NAMES AND
ADDRESSES OF ALL UNIT EMPLOYEES WHEN THE EMPLOYEES WERE SCATTERED OVER A
WIDE GEOGRAPHICAL AREA AND NO PRACTICAL ALTERNATIVE, OTHER THAN MAILING,
EXISTED BY WHICH THE UNION COULD COMMUNICATE WITH THE EMPLOYEES. SEE,
E.G., UNITED AIRCRAFT CORP. V. N.L.R.B., 434 F.2D 1198 (2D CIR. 1970),
CERT. DENIED, 401 7.S. 993 (1971); PRUDENTIAL INSURANCE CO. V.
N.L.R.B., 412 F.2D 77 (2D CIR. 1969), CERT. DENIED, 396 U.S. 928 (1969);
STANDARD OIL V. N.L.R.B., 399 F.2D 639 (9TH CIR. 1968). CF. EXCELSIOR
UNDERWEAR, INC., 156 N.L.R.B. 1236 (1966).
IN SHELL OIL COMPANY, SUPRA, IT WAS STIPULATED THAT THE UNION'S
"EXISTING MEANS OF COMMUNICATING WITH THE UNIT EMPLOYEES-- HANDBILLING,
UNION MEETINGS, BULLETIN BOARDS, ETC.-- WERE INEFFECTIVE TO REACH ALL
UNIT EMPLOYEES BECAUSE OF THE SCATTERED LOCATION OF RESPONDENT'S
FACILITIES IN THE UNIT AND THE RESIDENTIAL DISPERSION OF UNIT
EMPLOYEES." THE COURT, HOWEVER, IN DENYING ENFORCEMENT OF THE LABOR
BOARD'S ORDER, STATED:
TO THE EXTENT THAT THE BOARD'S DECISION REFLECTS A DETERMINATION THAT
THERE WAS NOT A CLEAR
AND PRESENT DANGER OF VIOLENCE AND HARASSMENT, IT IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE ON
THE RECORD AS A WHOLE. AS NOTED ABOVE, THE STIPULATION OF THE
PARTIES AND UNCONTRADICTED
TESTIMONY ESTABLISH THAT THERE WAS SUCH DANGER.
WE DO NOT THINK THAT A UNION DUTY TO SAFEGUARD UNION MEMBERSHIP
LISTS, EVEN WHEN EXPRESSED
IN THE UNION CONSTITUTION AND EVEN ASSUMING THAT SANCTIONS WOULD BE
APPLIED TO A FAILURE TO
SAFEGUARD LISTS OF NON-UNION MEMBERS, IS SUFFICIENT TO RESCUE THE
BOARD'S ORDER.
ON THIS RECORD IT WOULD BE UNREASONABLE TO CONCLUDE THAT THE COMPANY
WAS NOT VOICING GOOD
FAITH CONCERN, OR THAT ITS PROPOSALS WERE NOT REASONABLE AND SERIOUS.
IT IS SUFFICIENT TO
SUSTAIN THE COMPANY'S POSITION THAT ITS CONCERN BE BONA FIDE AND ITS
PROPOSALS REASONABLE AND
SERIOUS.
ACCORDINGLY, ASSUMING THAT THE RATIONALE OF THE LABOR BOARD SHOULD
APPLY HERE, THE QUESTION RAISED IS WHETHER, ON THE FACTS OF THIS CASE,
NAIRE IS ENTITLED TO THE HOME ADDRESSES OF ALL UNIT EMPLOYEES BECAUSE IT
"HAS NO OTHER EFFECTIVE MEANS OF COMMUNICATING WITH THEM" (WESTERN AND
SOUTHERN LIFE INSURANCE COMPANY, SUPRA) OR, STATED DIFFERENTLY, "NO
PRACTICAL ALTERNATIVE, OTHER THAN MAILING, EXISTED BY WHICH THE UNION
COULD COMMUNICATE WITH THE EMPLOYEES" (SHELL OIL COMPANY, SUPRA).
APPLYING THE RATIONALE AND PRINCIPLES SUMMARIZED ABOVE, I FIND AND
CONCLUDE ON THE FACTS OF THIS CASE THAT RESPONDENT IRS DID NOT VIOLATE
SECTION 19(A)(6) OF THE EXECUTIVE ORDER BY REFUSING TO DISCLOSE TO
COMPLAINANT NAIRE THE HOME ADDRESSES OF ALL UNIT EMPLOYEES. I FIND AND
CONCLUDE FROM THE ESSENTIALLY UNDISPUTED EVIDENCE OF RECORD RECITED
HEREIN THAT COMPLAINANT NAIRE IS NOT ENTITLED TO THE HOME ADDRESSES OF
ALL UNIT EMPLOYEES BECAUSE THE UNION IN FACT HAS "OTHER EFFECTIVE MEANS
OF COMMUNICATING WITH THEM" (IBID.).
THUS, AS SHOWN, NAIRE HAS ABOUT ONE STEWARD FOR EACH 40 UNIT
EMPLOYEES. THERE IS AT LEAST ONE STEWARD AT EACH POST OF DUTY IN THE
JACKSONVILLE DISTRICT. NAIRE RECEIVES FROM IRS QUARTERLY LISTS OF THE
NAMES AND POSITION TITLES OF ALL UNIT EMPLOYEES. IRS HAS AGREED TO
PROVIDE NAIRE "UPON ADVANCE REQUEST" WITH "MEETING SPACE FOR MEETINGS
AFTER HOURS IF SUCH SPACE IS AVAILABLE. IRS HAS AGREED TO PROVIDE NAIRE
"UPON REQUEST, AND WHEN AVAILABLE, MEETING SPACE FOR USE BY A UNION
REPRESENTATIVE . . . FOR THE PREPARATION OF GRIEVANCES . . . " IRS HAS
AGREED THAT NAIRE REPRESENTATIVES "UPON REASONABLE ADVANCE NOTICE MAY
VISIT" THE VARIOUS POSTS "BETWEEN THE HOURS OF 11:30 A.M. AND 1:30 P.M.
TO DISCUSS APPROPRIATE UNION BUSINESS WITH EMPLOYEES" IN THE UNIT,
"PROVIDED SUCH DISCUSSIONS ARE DURING THE NON-DUTY HOURS OF THE
EMPLOYEE(S) INVOLVED AND TAKE PLACE IN NON-WORK AREAS." FURTHER, IRS HAS
AGREED, SUBJECT TO CERTAIN STATED LIMITATIONS, TO MAKE AVAILABLE
ONE-FOURTH OF SUCH "OFFICIAL BULLETIN BOARD FOR THE EXCLUSIVE USE OF THE
UNION." AND, NAIRE REPRESENTATIVES ARE PERMITTED TO DISTRIBUTE NOTICES
OR LITERATURE "IN THE OFFICES OF THE DISTRICT" BEFORE AND AFTER
SCHEDULED WORKING HOURS AND DURING THE NON-DUTY HOURS OF THE EMPLOYEES
INVOLVED. THUS, NAIRE STEWARDS MAY DISTRIBUTE UNION NOTICES OR
LITERATURE TO THE DESKS OF UNIT PERSONNEL BEFORE WORKING HOURS, DURING
LUNCH AND AFTER DUTY HOURS OF THE PERSONNEL INVOLVED.
IN ADDITION TO THE FOREGOING, IRS HAS AGREED TO DISTRIBUTE TO EACH
NEW EMPLOYEE A NAIRE "ANNOUNCEMENT CARD" WHICH INVITES THE EMPLOYEE TO
FURNISH NAIRE WITH, INTER ALIA, HIS HOME ADDRESS. IRS ALSO HAS AGREED
TO DISTRIBUTE COPIES OF THE COLLECTIVE BARGAINING AGREEMENT TO ALL UNIT
PERSONNEL; TO PROVIDE EACH NEW EMPLOYEE WITH A DOCUMENT ENTITLED
"EMPLOYEE-MANAGEMENT COOPERATION PROGRAM" AND TO
VERBALLY EXPLAIN THE UNION'S STATUS AS EXCLUSIVE REPRESENTATIVE . . .
. IN ADDITION, THE
EMPLOYER WILL ANNOUNCE THAT A UNION REPRESENTATIVE IS AVAILABLE TO
ANSWER QUESTIONS DURING
NON-DUTY HOURS.
FURTHER, THE UNION MAILS TO THE HOMES OF ITS MEMBERS AND MAKES
AVAILABLE FOR DISTRIBUTION AT VARIOUS DUTY POSTS COPIES OF ITS NEWSPAPER
FLEMCO, WHICH IS PUBLISHED PERIODICALLY.
THE UNION, IN ITS POST-HEARING BRIEF, ARGUES THAT A "POTENTIALLY
EFFECTIVE MEANS OF COMMUNICATION IS THE USE OF RESPONDENT'S MAILING
SYSTEM TO DELIVER NOTICES TO THE EMPLOYEES." HOWEVER, AS NOTED, NAIRE
NEVER ASKED FOR THIS ADDITIONAL RIGHT AT THE BARGAINING SESSIONS.
MOREOVER, NAIRE APPARENTLY HAS FAILED OR DECLINED TO UTILIZE MANY OF THE
MEANS OF ACCESS PROVIDED FOR IN THE CONTRACT SUCH AS, FOR EXAMPLE, USE
OF IRS MEETING FACILITIES AND VISITATION BY UNION OFFICIALS AT THE
POSTS. FURTHER, THE RECORD INDICATES THAT NAIRE HAS NOT ATTEMPTED
THROUGH ITS 22 STEWARDS TO OBTAIN THE HOME ADDRESSES OF NON-MEMBER UNIT
EMPLOYEES.
NAIRE EMPHASIZES IN ITS BRIEF THE LIMITATIONS AND RESTRICTIONS OF THE
VARIOUS MEANS OF ACCESS PROVIDED FOR IN THE COLLECTIVE BARGAINING
AGREEMENT. THUS, HANDBILLING IS ASSERTEDLY INEFFECTIVE BECAUSE
FREQUENTLY WORK IN THE FIELD; DISTRIBUTION OF UNION NOTICES IS
PERMITTED ONLY DURING OFF-DUTY HOURS OF THE PERSONNEL INVOLVED; THERE
IS A HIGH TURNOVER OF PERSONNEL; VISITATION BY NAIRE'S REPRESENTATIVES
TO THE POSTS REQUIRES ADVANCE NOTICE AND IS LIMITED FROM 11:30 A.M.TO
1:30 P.M., WHEN EMPLOYEES MAY BE AWAY OR AT LUNCH; MOST NAIRE
"ANNOUNCEMENT CARDS" ARE NOT MAILED BACK TO NAIRE BY NEW EMPLOYEES;
THERE IS POOR ATTENDANCE AT UNION MEETINGS; AND THE RIGHT TO USE OF THE
OFFICIAL BULLETIN BOARDS IS NOT UNRESTRICTED. NEVERTHELESS, IT IS PLAIN
THAT NAIRE PRINCIPALLY WANTS TO COMMUNICATE IN WRITING WITH THE UNIT
EMPLOYEES /19/ AND DISTRIBUTION OF NOTICES OR SIMILAR DOCUMENTS CAN
REASONABLY BE MADE TO THE DESKS OF THE UNIT PERSONNEL BY STEWARDS.
MOREOVER, IN THE CONTEXT OF AN EMPLOYER WHO CONCEDEDLY HAS NOT
MANIFESTED ANY ANTI-UNION ANIMUS, THE CUMULATIVE RESULT OF THE VARIOUS
CONTRACTUAL PROVISIONS DISCUSSED ABOVE IS TO GRANT NAIRE AN "EFFECTIVE
MEANS OF COMMUNICATING WITH" THE UNIT EMPLOYEES.
NAIRE ASSERTS THAT "FACTORS" PRESENT IN THE LABOR BOARD CASES CITED
ABOVE ARE "SIMILAR" OR "ASTONISHINGLY SIMILAR TO THOSE PRESENT IN THIS
CASE." HOWEVER, A CAREFUL READING OF THE CITED LABOR BOARD CASES SHOWS
THAT THEY ARE FACTUALLY INAPPOSITE. FOR EXAMPLE, IN PRUDENTIAL, SUPRA,
THE UNIT INVOLVED SOME 17,000 EMPLOYEES COVERING SOME 34 STATES; IN
WESTERN AND SOUTHERN LIFE INSURANCE CO., SUPRA, THE UNION "HAD NO
CONTRACT RIGHT TO BULLETIN BOARDS OR TO COMMUNICATE WITH THE AGENTS ON
RESPONDENT'S PREMISES;" AND IN SHELL OIL COMPANY, SUPRA, THE PARTIES
STIPULATED THAT THE UNION'S "EXISTING MEANS OF COMMUNICATING WITH THE
UNIT EMPLOYEES . . . WERE INEFFECTIVE . . . " IN NONE OF THESE CITED
CASES DO WE FIND CONTRACTUAL ACCESS PROVISIONS EQUIVALENT TO OR
SUBSTANTIALLY SIMILAR TO THOSE PROVIDED FOR IN THE INSTANT CASE.
IN SUM, I WOULD FIND AND CONCLUDE THAT COMPLAINANT NAIRE HAS FAILED
TO PROVE THAT RESPONDENT IRS VIOLATED ITS BARGAINING OBLIGATION AS
ALLEGED. FURTHER, THE REMAINING ISSUES, AS RECITED ABOVE, INVOLVE NOVEL
AND SUBSTANTIAL QUESTIONS UNDER THE EXECUTIVE ORDER. HOWEVER, IN VIEW
OF MY RECOMMENDATION, IT IS UNNECESSARY TO REACH OR PASS UPON THESE
ISSUES AT THIS TIME.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, I RECOMMEND
THAT THE COMPLAINT FILED HEREIN AGAINST RESPONDENT BE DISMISSED. /20/
DATED AT WASHINGTON, D.C.
THIS 19TH DAY OF MAY, 1972
/1/ ON AUGUST 17, 1971, THE CIVIL SERVICE COMMISSION (HEREIN, "CSC"
OR "THE INTERVENOR") MOVED TO INTERVENE IN THIS PROCEEDING. ON AUGUST
19, 1971, THE ACTING REGIONAL ADMINISTRATOR GRANTED THE MOTION TO
INTERVENE.
/2/ BRIEFS WERE FILED BY NAIRE, IRS AND CSC.
/3/ NAIRE ASSERTS IN ITS BRIEF: " . . . ABSENT THAT INFORMATION, THE
UNION CANNOT REPRESENT THE EMPLOYEES EFFECTIVELY AND MAINTAIN
COMMUNICATION WITH THEM. . . . IN THE CIRCUMSTANCES OF THIS CASE, A
LIST OF THE EMPLOYEES' HOME ADDRESSES WILL ENABLE THE UNION TO
COMMUNICATE ITS BARGAINING OR ADMINISTRATIVE POSITION AND AID IT IN
FORMULATING THIS POSITION. . . . "
/4/ SECTION 11(C)(4) STATES:
(C) IF IN CONNECTION WITH NEGOTIATIONS, AN ISSUE DEVELOPS AS TO
WHETHER A PROPOSAL IS
CONTRARY TO LAW, REGULATION, CONTROLLING AGREEMENT, OR THIS ORDER AND
THEREFORE NOT
NEGOTIABLE, IT SHOULD BE RESOLVED AS FOLLOWS:
(4) A LABOR ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION
WHEN-- (I) IT DISAGREES
WITH AN AGENCY HEAD'S DETERMINATION THAT A PROPOSAL WOULD VIOLATE
APPLICABLE LAW, REGULATION
OR APPROPRIATE AUTHORITY OUTSIDE THE AGENCY, OR THIS ORDER, OR (II)
IT BELIEVES THAT AN
AGENCY'S REGULATIONS, AS INTERPRETED BY THE AGENCY HEAD, VIOLATE
APPLICABLE LAW, REGULATION OR
APPROPRIATE AUTHORITY OUTSIDE THE AGENCY, OR THIS ORDER.
/5/ THE ABOVE DATA IS MORE FULLY RECITED IN JOINT EXHIBITS 1 AND 2
AND IRS EXHIBIT 9. THESE EXHIBITS WERE WITHDRAWN AND SUBSTITUTED IN
ACCORDANCE WITH A STIPULATION BETWEEN THE PARTIES, DATED NOVEMBER 15,
1971. THE STIPULATION AND SUBSTITUTED EXHIBITS ARE HEREBY INCORPORATED
INTO THE RECORD.
I NOTE THAT IRS EXH. 9 SHOWS A TOTAL OF 1083 EMPLOYEES IN THE
DISTRICT AND THAT ONLY 890 PERSONS ARE IN FACT UNIT EMPLOYEES. I NOTE
FURTHER THAT JT. EXH. 2, WHICH REFLECTS THE MUNICIPALITIES THAT
EMPLOYEES COMMUTE FROM, APPEARS TO BE BASED ON THE TOTAL NUMBER OF
EMPLOYEES IN THE DISTRICT AND NOT JUST THE NUMBER OF UNIT EMPLOYEES. TO
THE SAME EFFECT, SEE THE ORGANIZATION DATA REFLECTED IN JT. EXH. 1.
/6/ DURING THE NEGOTIATIONS, IRS DECLINED TO FURNISH HOME ADDRESSES
OF THE EMPLOYEES FOR A VARIETY OF REASONS INCLUDING ITS ASSERTION THAT
CSC AND IRS REGULATIONS FORBID SUCH DISCLOSURE. AS ROBERT METHENY,
CHIEF SPOKESMAN FOR IRS, CREDIBLY TESTIFIED:
HEARING EXAMINER: * * * YOU, OF COURSE, WOULDN'T HAVE BEEN ABLE TO
GIVE THAT WITH THE
REGULATIONS BEING WHAT THEY ARE, WOULD YOU?
THE WITNESS: THAT'S RIGHT. WE HAD NO OPTION IN THE MATTER.
IRS'S OTHER ASSERTED REASONS FOR REFUSING TO AGREE TO MAKE DISCLOSURE
OF THE HOME ADDRESSES DURING THE BARGAINING SESSIONS INCLUDE, INTER
ALIA, (1) "IF THE EMPLOYEE WANTED TO FURNISH THEM, THEN THE UNION SHOULD
CONTACT THE EMPLOYEE AND GIVE HIM THAT OPTION"; (2) THE "PERSONAL
SAFETY OF THE EMPLOYEES PARTICULARLY (IN) OUR ENFORCEMENT AREA"; (3)
"THERE ARE NUMEROUS ACCESS PROVISIONS IN THE CONTRACT THAT WOULD PROVIDE
THE UNION WITH THE INFORMATION THAT THEY SOUGHT"; AND (4) THE
'ADMINISTRATIVE PROBLEM OF COLLECTING (THE) INFORMATION."
/7/ GUINN NOTED THAT EXTRA COPIES OF FLEMCO ARE "PLAC(ED) . . . ON A
DESK OR SOMETHING LIKE THAT" SO EMPLOYEES "CAN PICK THEM UP."
/8/ GUINN ALSO ACKNOWLEDGED THAT NO REQUEST FOR HOME ADDRESSES OF
UNIT EMPLOYEES WAS MADE PREVIOUSLY DURING THE ELECTION CAMPAIGN.
/9/ IN ITS POST-HEARING BRIEF, NAIRE ASSETS: "A POTENTIALLY
EFFECTIVE MEANS OF COMMUNICATION IS THE USE OF RESPONDENT'S MAILING
SYSTEM TO DELIVER NOTICES TO THE EMPLOYEES. THIS METHOD IS PROHIBITED
BY THE RESPONDENT." AS STATED, NO REQUEST FOR SUCH A CONTRACTUAL
PROVISION WAS EVER MADE BY THE UNION.
/10/ EXH. U-3 IS HEADLINED, "NAIRE WAGING INTENSE BATTLE FOR FEDERAL
EMPLOYEES", AND CRITICALLY DISCUSSES, INTER ALIA, THE PRESIDENT'S
ANNOUNCED WAGE FREEZE FOR FEDERAL PERSONNEL.
/11/ KELTY ALSO EXPLAINED THAT ONCE EVERY TWO WEEKS SHE GENERALLY
ATTEMPTED TO HAVE OTHER "BULLETINS" DISTRIBUTED TO ALL PERSONNEL.
APPARENTLY, THERE WERE EXCEPTIONS TO THIS PRACTICE.
/12/ THERE ARE APPARENTLY TWO DIRECTORIES INVOLVED AND THE WITNESS'S
NAME AND ADDRESS APPEARED ONCE THEREAFTER IN ONE OF THE DIRECTORIES.
/13/ CABE ALSO IDENTIFIED EXH. IRS 13, A CHECK LIST ENSURING THAT
MANAGEMENT COMPLIES WITH AND INFORMS NEW EMPLOYEES OF THE PERTINENT
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT. THIS DOCUMENT
RECITES, INTER ALIA:
IN ADDITION, PLEASE TELL THE NEW EMPLOYEES THAT A UNION
REPRESENTATIVE IS AVAILABLE TO
ANSWER QUESTIONS DURING NON-DUTY HOURS.
/14/ CABE ALSO TESTIFIED THAT OF THE SOME 887 EMPLOYEES ELIGIBLE TO
VOTE IN THE APRIL 13, 1970 REPRESENTATION ELECTION, 666 VOTED INCLUDING
SOME 340 PERSONS WHO VOTED BY MAIL BALLOT. CABE EXPLAINED THAT MAIL
BALLOTS WERE USED IN PART FOR CONVENIENCE AND BECAUSE OF "GEOGRAPHICAL
LAYOUT" OF THE UNIT.
/15/ CSC, AS NOTED, ALSO SUBMITTED A NUMBER OF EXHIBITS IN SUPPORT OF
ITS VARIOUS LEGAL CONTENTIONS. THESE EXHIBITS WERE RECEIVED AS CSC 1-9.
/16/ ACCORD: N.L.R.B. V. ACME INDUSTRIAL CO., 385 U.S. 432, 435-436
(1967); FAFNIR BEARING CO. V. N.L.R.B., 362 F.2D 716, 721 (C.A. 2,
1966).
/17/ HUMPHREY V. MOORE, 375 U.S. 335 (1964); STEELE V. LOUISVILLE &
NASHVILLE R.R. CO., 323 U.S. 192 (1944); STANDARD OIL COMPANY OF
CALIFORNIA, W.O. INC. V. N.L.R.B., 399 F.2D 639 (C.A. 9, 1968).
/18/ COMPARE CASES HOLDING THAT INFORMATION AS TO THE WAGES OF UNIT
EMPLOYEES IS "PRESUMPTIVELY RELEVANT" TO THE UNION'S FUNCTION AS
BARGAINING REPRESENTATIVE. CURTISS-WRIGHT CORP. V. N.L.R.B., 347 F.2D
61, 68-69 (C.A. 3, 1965); INTERNATIONAL TEL. AND TEL. CORP. V.
N.L.R.B., 382 F.2D 366 (C.A. 3 1967), CERT. DENIED 389 U.S. 1039;
BOSTON HERALD-TRAVELER CORP. V. N.L.R.B., 223 F.2D 58 (C.A. 1, 1955).
/19/ NAIRE, IN ITS REQUEST OF JANUARY 8, 1971, MAKES IT CLEAR THAT
"PERSONAL CONTACT AT HOME" IS "VIRTUALLY IMPOSSIBLE." IN ITS BRIEF,
NAIRE STATES: " . . . IT WOULD BE IMPOSSIBLE TO VISIT THE EMPLOYEES IN
THEIR HOMES . . . "
/20/ AT THE CLOSE OF COMPLAINANT'S CASE, CSC AND IRS MOVED TO DISMISS
THE COMPLAINT, I TOOK THE MOTION UNDER ADVISEMENT AND, FOR THE REASONS
STATED HEREIN, WOULD RECOMMEND DISMISSING THE COMPLAINT.
2 A/SLMR 213; P. 520; CASE NO. 22-2878(CU); OCTOBER 30, 1972.
DEPARTMENT OF THE ARMY,
DEFENSE LANGUAGE INSTITUTE,
EAST COAST BRANCH
A/SLMR NO. 213
THIS CASE INVOLVED A CLARIFICATION OF UNIT (CU) PETITION FILED BY THE
ACTIVITY TO CLARIFY AN EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO (AFGE).
IN DECEMBER 1969 THE AFGE WAS GRANTED RECOGNITION FOR A UNIT OF ALL
NONSUPERVISORY INSTRUCTORS IN THE EAST COAST BRANCH OF THE DEFENSE
LANGUAGE INSTITUTE. AT THE TIME OF RECOGNITION ONLY PERMANENT
INSTRUCTORS WERE EMPLOYED, BUT SUBSEQUENTLY THE ACTIVITY HIRED
"NOT-TO-EXCEED" (NTE) AND "WHEN-ACTUALLY-EMPLOYED" (WAE) INSTRUCTORS.
THE AFGE WOULD INCLUDE SUCH EMPLOYEES ON THE GROUND THAT THE UNIT
LANGUAGE ENCOMPASSES TEMPORARY AS WELL AS PERMANENT EMPLOYEES.
THE ASSISTANT SECRETARY NOTED THAT THE NTE EMPLOYEES TEACH SPECIFIED
COURSES FOR A SET DURATION, HAVE SOME OF THE SAME BENEFITS AS PERMANENT
EMPLOYEES, ARE APPOINTED FOR ONE-YEAR TERMS, HAVE BEEN REAPPOINTED TO
LONGER TERMS ON SEVERAL OCCASIONS SINCE NTE'S WERE FIRST EMPLOYED IN
1970, AND MAY BE CONSIDERED TO HAVE A REASONABLE EXPECTATION OF FUTURE
EMPLOYMENT. IN THESE CIRCUMSTANCES, HE FOUND THAT THE NTE EMPLOYEES
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH PERMANENT
EMPLOYEES AND WERE WITHIN THE CLASSIFICATIONS CONTEMPLATED IN THE
EXCLUSIVE RECOGNITION.
WITH RESPECT TO THE WAE EMPLOYEES, THE ASSISTANT SECRETARY CONCLUDED
THAT THE RECORD IS CLEAR THAT SUCH EMPLOYEES ARE EMPLOYED SPORADICALLY
AND ARE HIRED ONLY FOR CONTINGENCIES THAT CANNOT BE FORESEEN. THUS, THE
WAE EMPLOYEES FILL IN FOR OTHER INSTRUCTORS IN THE EVENT OF ILLNESSES OR
OTHER UNFORESEEN OCCURRENCES, THEY ARE NOT ASSIGNED REGULAR CLASSES,
SHARE NO COMMON BENEFITS WITH OTHER EMPLOYEES, ARE PAID ONLY WHEN
ACTUALLY EMPLOYED, AND, GENERALLY, DO NOT HAVE A REASONABLE EXPECTATION
OF FUTURE EMPLOYMENT.
ACCORDINGLY, THE ASSISTANT SECRETARY FOUND IT APPROPRIATE TO CLARIFY
THE EXISTING UNIT TO INCLUDE THE NTE EMPLOYEES, AND TO EXCLUDE THE WAE
EMPLOYEES.
DEPARTMENT OF THE ARMY,
DEFENSE LANGUAGE INSTITUTE,
EAST COAST BRANCH
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2, AFL-CIO /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER DONALD K. CLARK. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS OF THE
PARTIES, THE ASSISTANT SECRETARY FINDS:
THE ACTIVITY-PETITIONER, DEPARTMENT OF THE ARMY, DEFENSE LANGUAGE
INSTITUTE, EAST COAST BRANCH, HEREIN CALLED DLI, FILED A CLARIFICATION
OF UNIT PETITION (CU) IN THE SUBJECT CASE SEEKING CLARIFICATION OF AN
EXISTING EXCLUSIVELY RECOGNIZED BARGAINING UNIT. /2/ SPECIFICALLY, DLI
SEEKS A DETERMINATION THAT THE RECOGNIZED UNIT CONSISTS ONLY OF SOME 29
PERMANENT EMPLOYEES AND DOES NOT INCLUDE SOME 22 "NOT-TO-EXCEED" (NTE)
AND SOME 9 "WHEN-ACTUALLY-EMPLOYED" (WAE) INSTRUCTORS. IN THIS
CONNECTION, DLI CONTENDS THAT ALTHOUGH THE UNIT DESCRIPTION FOR THE
RECOGNIZED UNIT INCLUDES "ALL" INSTRUCTORS, THE PARTIES DID NOT
CONTEMPLATE THE INCLUSION OF NTE AND WAE EMPLOYEES IN THE RECOGNIZED
UNIT AS NO SUCH EMPLOYEES WERE EMPLOYED AT THE TIME OF RECOGNITION. IT
CONTENDS ALSO THAT INSTRUCTORS IN THE NTE AND WAE CATEGORIES DO NOT
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH PERMANENT
INSTRUCTORS. THUS, DLI PROPOSES THAT THE UNIT DESCRIPTION BE MODIFIED
EXPRESSLY TO EXCLUDE NTE AND WAE INSTRUCTORS.
THE AFGE TAKES THE POSITION THAT THE EXISTING EXCLUSIVELY RECOGNIZED
UNIT INCLUDES ALL INSTRUCTORS, WHETHER PERMANENT EMPLOYEES OR OTHERWISE;
THAT THE NTE AND WAE EMPLOYEES WERE INTENDED TO BE INCLUDED IN THE
RECOGNIZED UNIT; THAT IT WOULD BE UNCONSCIONABLE TO EXCLUDE 52 PERCENT
OF A BARGAINING UNIT, WHICH THE PROPOSED CLARIFICATION WOULD DO; AND
THAT ALL DLI INSTRUCTORS SHOULD BE INCLUDED IN THE UNIT IN VIEW OF THE
SIMILARITIES IN THEIR SUPERVISION, WORKING CONDITIONS AND BENEFITS.
THE RECORD REFLECTS THAT DLI IS AN ORGANIZATION OF THE DEPARTMENT OF
DEFENSE, UNDER THE ADMINISTRATIVE CONTROL OF THE DEPARTMENT OF THE ARMY.
ITS MISSION IS TO CONDUCT FOREIGN LANGUAGE TRAINING PROGRAMS FOR
SELECTED MILITARY AND CIVILIAN PERSONNEL AND TO PROVIDE THE NECESSARY
LOGISTICAL SUPPORT DIRECTLY RELATED TO THIS TRAINING. THE UNIT INVOLVED
HEREIN COVERS THOSE PERSONNEL WHO CONDUCT THE LANGUAGE TRAINING
NECESSARY TO THE MISSION OF EAST COAST BRANCH OF DLI.
THERE ARE THREE CATEGORIES OF INSTRUCTORS CURRENTLY EMPLOYED BY DLI
AT ITS EAST COAST BRANCH. ONE CATEGORY IS COMPOSED OF THE PERMANENT
EMPLOYEES WHOSE EMPLOYMENT IS NOT LIMITED TO A FIXED PERIOD AND WHO ALL
PARTIES AGREE ARE WITHIN THE EXCLUSIVELY RECOGNIZED UNIT. THE REMAINING
TWO CATEGORIES OF EMPLOYEES DLI WOULD EXCLUDE FROM THE RECOGNIZED UNIT
ARE THE NTE EMPLOYEES WHO ARE HIRED FOR FIXED PERIODS NOT TO EXCEED ONE
YEAR, BUT WHOSE APPOINTMENTS MAY BE RENEWED FOR THE LENGTH OF TIME THAT
THEY ARE NEEDED, AND THE WAE EMPLOYEES WHO ARE PAID ONLY WHEN THEY
ACTUALLY WORK. /3/
THE NTE EMPLOYEES USUALLY ARE APPOINTED FOR ONE YEAR TERMS BUT, AS
NOTED ABOVE, MAY BE REAPPOINTED FOR EXTENDED TERMS SHOULD THE NEEDS OF
INSTITUTE SO REQUIRE. THE RECORD ALSO DISCLOSES THAT SUCH EMPLOYEES ARE
HIRED FOR DEFINITE PERIODS TO TEACH SPECIFIC COURSES OF SET DURATIONS
AND ARE NOTIFIED AT THE BEGINNING OF THE SCHOOL YEAR OF THEIR
EMPLOYMENT. ALTHOUGH THERE ARE NO PROVISIONS FOR NTE APPOINTMENTS TO BE
CONVERTED TO PERMANENT STATUS, THE EVIDENCE REVEALS THAT WHILE THEY ARE
EMPLOYED SUCH EMPLOYEES HAVE A REGULARLY SCHEDULED WORKWEEK OF 40 HOURS,
WORK ALONGSIDE THE PERMANENT INSTRUCTORS ON A REGULAR BASIS, AND ARE
REQUIRED TO TEACH ONE OR MORE COURSES. ALSO, IN COMMON WITH PERMANENT
EMPLOYEES, NTE EMPLOYEES RECEIVE ANNUAL AND SICK LEAVE AS WELL AS
HOLIDAY BENEFITS, ALTHOUGH THEY DO NOT RECEIVE PROMOTION OR STEP
INCREASES. THE RECORD FURTHER REVEALS THAT NTE EMPLOYEES HAVE A
REASONABLE EXPECTATION OF FUTURE EMPLOYMENT AS EVIDENCED BY THE FACT
THAT SEVERAL OF THEM HAVE BEEN REAPPOINTED AFTER THEIR ONE YEAR TERM HAS
EXPIRED. /4/
THE RECORD INDICATES THAT WAE EMPLOYEES, UNLIKE THOSE IN THE NTE
CATEGORY, ARE, IN ACTUALITY, SUBSTITUTE INSTRUCTORS WHO NEITHER HAVE SET
COURSES TO TEACH NOR FIXED SCHEDULES OF CLASSES. THEY ARE AVAILABLE TO
FILL IN FOR ANY PERMANENT OR NTE INSTRUCTORS WHO FALL ILL OR FOR SOME
REASON ARE UNABLE TO TEACH CLASS FOR A CERTAIN PERIOD OR IN OTHER
EMERGENCY SITUATIONS. WAE EMPLOYEES ARE PAID ONLY WHEN THEY ACTUALLY
WORK AND, AT OTHER TIMES, ARE FREE TO WORK ELSEWHERE. THEY DO NOT HAVE
TO BE ON CALL OR PREPARED TO REPORT FOR DUTY AT ANY TIME. IF SUCH
EMPLOYEES ARE NOT AVAILABLE, THIS IS NOT HELD AGAINST THEM, AND IF THEY
ARE AVAILABLE, AS NOTED ABOVE, THEY GET PAID FOR THE TIME THEY ACTUALLY
WORK. THEY MAY WORK, AS THE NEED ARISES, FOR A WEEK, A DAY, OR AN HOUR.
IN SUM, WAE EMPLOYEES ARE EMPLOYED ON AN INTERMITTENT OR SPORADIC BASIS
AND, CONSEQUENTLY, HAVE NO REASONABLE EXPECTATION OF FUTURE EMPLOYMENT.
/5/
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT NTE EMPLOYEES SHARE
A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH THE PERMANENT
EMPLOYEES IN THE UNIT SOUGHT TO BE CLARIFIED AND ARE WITHIN THE
CLASSIFICATIONS CONTEMPLATED IN THE EXCLUSIVE RECOGNITION. THUS, THE
EVIDENCE ESTABLISHES THAT EMPLOYEES IN THE NTE CATEGORY TEACH SPECIFIED
COURSES FOR A SET DURATION, HAVE DONE OF THE SAME BENEFITS AS PERMANENT
EMPLOYEES, ARE APPOINTED FOR ONE-YEAR TERMS, AND HAVE BEEN REAPPOINTED
TO LONGER TERMS ON SEVERAL OCCASIONS SINCE NTE EMPLOYEES WERE FIRST
EMPLOYED IN 1970.
HOWEVER, WITH RESPECT TO WAE EMPLOYEES, THE RECORD IS CLEAR THAT SUCH
EMPLOYEES ARE EMPLOYED SPORADICALLY AND ARE HIRED ONLY FOR CONTINGENCIES
THAT CANNOT BE FORESEEN. THUS, AS NOTED ABOVE, THE EVIDENCE ESTABLISHES
THAT WAE EMPLOYEES FILL IN FOR PERMANENT OR NTE INSTRUCTORS IN THE EVENT
OF ILLNESSES OR OTHER UNFORESEEN OCCURRENCES. THEY ARE NOT ASSIGNED
REGULAR CLASSES, ARE HELD TO NO SCHEDULE, ARE NOT HELD RESPONSIBLE FOR
UNAVAILABILITY FOR WORK, SHARE NO COMMON BENEFITS WITH OTHER EMPLOYEES,
ARE PAID ONLY WHEN ACTUALLY EMPLOYED AND, GENERALLY, DO NOT HAVE A
REASONABLE EXPECTATION OF FUTURE EMPLOYMENT. /6/
IN THESE CIRCUMSTANCES, I FIND THAT THE EXISTING UNIT SHOULD BE
CLARIFIED TO INCLUDE NTE EMPLOYEES, AND TO EXCLUDE WAE EMPLOYEES.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED ON DECEMBER 15, 1969 TO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO, LOCATED AT THE
DEPARTMENT OF THE ARMY, DEFENSE LANGUAGE INSTITUTE, EAST COAST BRANCH,
WASHINGTON, D.C., BE, AND HEREBY IS, CLARIFIED BY INCLUDING IN THE SAID
UNIT, ALL PERMANENT AND NOT-TO-EXCEED (NTE) INSTRUCTORS, AND BY
EXCLUDING FROM THE SAID UNIT WHEN-ACTUALLY-EMPLOYED (WAE) INSTRUCTORS.
DATED, WASHINGTON, D.C.
OCTOBER 30, 1972
/1/ THE NAME OF THE LABOR ORGANIZATION APPEARS AS AMENDED AT THE
HEARING.
/2/ ON DECEMBER 15, 1969 EXCLUSIVE RECOGNITION WAS ACCORDED TO THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO, HEREIN
CALLED AFGE. THE EXCLUSIVELY RECOGNIZED UNIT WAS COMPOSED OF "ALL
NON-SUPERVISORY PROFESSORS, ASSOCIATE PROFESSORS AND INSTRUCTORS"
EMPLOYED BY THE DLI, EAST COAST BRANCH.
/3/ THE RECORD REFLECTS THAT WHILE ALL EMPLOYEES MEET BASICALLY THE
SAME EDUCATIONAL REQUIREMENTS, ARE SIMILARLY SUPERVISED, AND ARE HELD TO
THE SAME STANDARDS, ONLY THE PERMANENT EMPLOYEES HAVE LIFE AND HEALTH
INSURANCE BENEFITS, RETIREMENT BENEFITS, RIGHTS IN REDUCTION-IN-FORCE
SITUATIONS, SEVERANCE AND MOVING PAY, AS WELL AS FULL GRIEVANCE
PROCEDURE RIGHTS.
/4/ THUS, THE EVIDENCE ESTABLISHES THAT SINCE 1970, WHEN NTE'S WERE
FIRST EMPLOYED, FOUR NTE'S WERE REAPPOINTED AFTER THEIR INITIAL TERM OF
EMPLOYMENT HAD EXPIRED.
/5/ WAE EMPLOYEES RECEIVE NO FRINGE BENEFITS.
/6/ ALTHOUGH THE RECORD REVEALS THAT ONE WAE EMPLOYEE WAS UPGRADED TO
AN NTE CLASSIFICATION, IT ALSO DISCLOSES THAT SUCH EMPLOYEE WAS UPGRADED
BECAUSE OF A CONTINUED EXPECTATION OF EMPLOYMENT WHICH COULD BE ATTAINED
ONLY IN THE NTE CLASSIFICATION.
2 A/SLMR 212; P. 515; CASE NO. 71-2120(RO); OCTOBER 30, 1972.
DEPARTMENT OF INTERIOR,
BUREAU OF LAND MANAGEMENT,
DISTRICT OFFICE
LAKEVIEW, OREGON
A/SLMR NO. 212
THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 642,
(NFFE) SOUGHT AN ELECTION IN A UNIT OF ALL THE ACTIVITY'S PROFESSIONAL
AND NONPROFESSIONAL EMPLOYEES. THE ACTIVITY CONTENDED THAT EMPLOYEES
CLASSIFIED AS "PROFESSIONALS" SHOULD BE EXCLUDED FROM THE UNIT BECAUSE
THEY DO NOT SHARE A COMMUNITY OF INTEREST WITH "NONPROFESSIONAL"
EMPLOYEES. IT CONTENDED ALSO THAT SOME 30 TO 35 EMPLOYEES HIRED
SEASONALLY AS FIREFIGHTERS AND WHO ARE DESIGNATED AS "TEMPORARY"
EMPLOYEES SHOULD BE INCLUDED IN THE UNIT.
THE ASSISTANT SECRETARY STATED THAT THE TEST OF WHETHER THE ALLEGED
"PROFESSIONAL" AND THE "NONPROFESSIONAL" EMPLOYEES MAY BE JOINED IN THE
SAME UNIT IS WHETHER SUCH EMPLOYEES SHARE COMMON CONDITIONS OF INTEREST
WITH EACH OTHER. HE FOUND THAT SUCH A COMMUNITY OF INTEREST EXISTED IN
THE INSTANT CASE, AND HE ALSO NOTED THAT SECTION 10(B)(4) OF THE ORDER
PROVIDES PROFESSIONAL EMPLOYEES WITH THE OPPORTUNITY TO DECIDE AS A
GROUP AS TO WHETHER THEY WISH TO BE INCLUDED WITH NONPROFESSIONAL
EMPLOYEES.
THE ASSISTANT SECRETARY FOUND FURTHER THAT THE CLAIMED UNIT WAS
APPROPRIATE. IN THIS CONNECTION, HE NOTED THAT THE ACTIVITY (LAKEVIEW
DISTRICT OFFICE) CONSTITUTES A DISTINCT ADMINISTRATIVE AND GEOGRAPHIC
SUBDIVISION OF THE BUREAU OF LAND MANAGEMENT; THAT THE DISTRICT MANAGER
EXERCISES INITIAL DECISION-MAKING AUTHORITY OVER THE PUBLIC LANDS WITHIN
THE DISTRICT AND EXERCISES SUBSTANTIAL CONTROL OVER DISTRICT PERSONNEL;
AND THAT THERE ARE UNIFORM PERSONNEL POLICIES AND PROGRAMS FOR THE
EMPLOYEES WITHIN THE CLAIMED UNIT.
THE ASSISTANT SECRETARY FOUND THAT SOME 30 TO 35 "TEMPORARY" OR
"SEASONAL" EMPLOYEES, WHO WERE HIRED EACH YEAR AS FIREFIGHTERS FOR THE
MONTHS OF JUNE THROUGH SEPTEMBER, HAD A REASONABLE EXPECTANCY OF FUTURE
EMPLOYMENT, AND THUS SHARED A COMMUNITY OF INTEREST WITH OTHER ACTIVITY
EMPLOYEES AND SHOULD BE INCLUDED IN THE UNIT. FURTHERMORE, THE
ASSISTANT SECRETARY FOUND THAT IN SEASONAL INDUSTRIES AN ADEQUATE
SHOWING OF INTEREST MAY BE ESTABLISHED BASED ON THE NUMBER OF EMPLOYEES
IN THE UNIT AT THE TIME THE REPRESENTATION PETITION IS FILED. THE
ASSISTANT SECRETARY FOUND ALSO THAT THE FIRE CONTROL TECHNICIAN, WHO
ACTS AS A SUPERVISOR FOR THE "SEASONAL" EMPLOYEES AND FOR THE REST OF
THE YEAR IS A RANK-AND-FILE EMPLOYEE, SHOULD BE INCLUDED IN THE EMPLOYEE
BARGAINING UNIT DURING THE PORTION OF THE WORKING YEAR HE SERVES AS A
RANK-AND-FILE EMPLOYEE, AND THAT SUCH A "SEASONAL SUPERVISOR" IS
ELIGIBLE TO VOTE IN A REPRESENTATION ELECTION IF HE IS NOT IN A
SUPERVISORY STATUS AT THE TIME OF THE ELECTION. IN ADDITION, THE
ASSISTANT SECRETARY FOUND THE SECRETARY TO THE DISTRICT MANAGER WAS A
CONFIDENTIAL EMPLOYEE WHO SHOULD BE EXCLUDED FROM THE UNIT FOUND
APPROPRIATE.
THE ASSISTANT SECRETARY FOUND THAT THE REALTY SPECIALIST WAS NOT A
PROFESSIONAL EMPLOYEE AS THE RECORD DID NOT INDICATE HE HAD DIFFERENT
DUTIES OR SUBSTANTIALLY DIFFERENT EDUCATIONAL AND JOB REQUIREMENTS FROM
THE REALTY SPECIALIST WHO WAS FOUND NOT TO BE A PROFESSIONAL IN
DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT, RIVERSIDE
DISTRICT AND LAND OFFICE, A/SLMR NO. 170. THE ASSISTANT SECRETARY
CONCLUDED THAT THE RECORD WAS NOT ADEQUATE TO MAKE A DETERMINATION AS TO
THE PROFESSIONAL STATUS OF CERTAIN OTHER JOB CLASSIFICATIONS; RANGE AND
WATERSHED SPECIALIST, WILDLIFE BIOLOGIST, RANGE CONSERVATIONIST,
FORESTER, AND CIVIL ENGINEER. IN THIS CONNECTION, HE NOTED THAT WHILE
THE RECORD REFLECTED IN CERTAIN INSTANCES THE ACTUAL EDUCATIONAL
BACKGROUND OF THE ALLEGED "PROFESSIONAL EMPLOYEES, IT DID NOT REFLECT
CLEARLY THE EDUCATIONAL REQUIREMENTS FOR THESE CATEGORIES; THAT THE
RECORD DID NOT REVEAL WHETHER THE PRODUCT OF ANY SPECIALIZED
INTELLECTUAL INSTRUCTION WITHIN SUCH JOB DESCRIPTIONS WOULD, IN FACT, BE
UTILIZED IN THE PERFORMANCE OF THEIR WORK; AND THAT THE LIMITED
DESCRIPTION OF THE WORK PERFORMED DID NOT INDICATE WHETHER THE CRITERIA
FOR PROFESSIONAL STATUS SET FORTH IN A/SLMR NO. 170 WERE FULLY MET. AS
A SELF-DETERMINATION ELECTION WOULD NOT BE WARRANTED IF THESE EMPLOYEES
WERE NOT PROFESSIONAL EMPLOYEES, THE ASSISTANT SECRETARY REMANDED THE
CASE TO THE REGIONAL ADMINISTRATOR TO SECURE ADDITIONAL EVIDENCE.
DEPARTMENT OF INTERIOR,
BUREAU OF LAND MANAGEMENT,
DISTRICT OFFICE,
LAKEVIEW, OREGON
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 642
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LYNN B. LUCKY.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD, INCLUDING A BRIEF FILED BY THE ACTIVITY, /1/
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE NFFE SEEKS AN ELECTION IN THE FOLLOWING UNIT: ALL EMPLOYEES
OF THE BUREAU OF LAND MANAGEMENT DISTRICT OFFICE, LAKEVIEW, OREGON, WITH
THE EXCEPTION OF MANAGERS, GUARDS, SUPERVISORS AND FEDERAL PERSONNEL
EMPLOYEES OTHER THAN THOSE IN A PURELY CLERICAL CAPACITY. THE ACTIVITY
AGREES THAT THE UNIT SOUGHT IS APPROPRIATE, BUT CONTENDS THAT EMPLOYEES
CLASSIFIED AS "PROFESSIONALS" SHOULD BE EXCLUDED BECAUSE THEY DO NOT
SHARE A COMMUNITY OF INTEREST WITH "NONPROFESSIONAL" EMPLOYEES. IT
CONTENDS ALSO THAT THOSE EMPLOYEES WHO ARE HIRED SEASONALLY AS
FIREFIGHTERS AND WHO ARE DESIGNATED AS "TEMPORARY" SHOULD BE INCLUDED IN
THE UNIT.
THE ACTIVITY IS PART OF THE BUREAU OF LAND MANAGEMENT WHOSE OVERALL
MISSION IS TO MANAGE AND PROTECT THE RESOURCES OF THE PUBLIC LANDS AND
TO MAKE THEM AVAILABLE FOR VARIOUS PURPOSES IN ORDER TO SERVE THE
NATIONAL INTEREST. DIRECTLY UNDER THE BUREAU OFFICE IN WASHINGTON,
D.C., ARE A NUMBER OF STATE OFFICES. UNDER THE STATE OFFICES ARE
VARIOUS DISTRICT OFFICES. IN ADDITION TO THE STATE AND DISTRICT OFFICES
THERE ARE TWO SERVICE CENTERS WHICH ARE ON THE SAME ORGANIZATIONAL LEVEL
AS THE STATE OFFICES AND WHICH PROVIDE CERTAIN SPECIAL SERVICES TO ALL
OF THE STATE OFFICES. THUS, THE DENVER SERVICE CENTER PROVIDES PAYROLL,
PROCUREMENT, DESIGN CAPABILITY, AND FINANCIAL MANAGEMENT RECORD KEEPING
FOR ALL THE STATE OFFICES AND THE PORTLAND SERVICE CENTER PROVIDES
CONTRACTING SERVICES, PROCUREMENT OF CAPITALIZED PROPERTY, AND DETAILED
ROAD ENGINEERING FOR THE SAME OFFICES. /2/
THE RECORD DISCLOSES THAT THE ACTIVITY, THE LAKEVIEW DISTRICT OFFICE,
IS HEADQUARTERED IN LAKEVIEW, OREGON, AND ADMINISTERS A SECTION OF
PUBLIC LAND. /3/ IT IS UNDER THE SUPERVISION OF A DISTRICT MANAGER, AND
EMPLOYES SOME 28 FULL-TIME EMPLOYEES. ALSO, DURING THE SUMMER MONTHS
THE ACTIVITY EMPLOYS SOME 30 TO 35 "TEMPORARY" EMPLOYEES AS FIRE
FIGHTERS.
THE ACTIVITY IS DIVIDED ADMINISTRATIVELY INTO THREE DIVISIONS:
RESOURCE MANAGEMENT, ADMINISTRATION, AND OPERATIONS, EACH HEADED BY A
DIVISION CHIEF. IT IS DIVIDED ALSO INTO THREE GEOGRAPHIC AREAS OF
SUB-RESPONSIBILITY, EACH HEADED BY AN AREA MANAGER: HIGH DESERT, WARNER
LAKES AND LOST RIVER. HOWEVER, WITH THE EXCEPTION OF TWO WAGE BOARD
(WB) EQUIPMENT OPERATORS AND A GENERAL SCHEDULE (GS) RANGE TECHNICIAN,
WHO ARE ALL UNDER THE DIVISION OF OPERATIONS AND WORK OUT OF VARIOUS
FIELD FACILITIES, ALL THE ACTIVITY'S EMPLOYEES, INCLUDING THE AREA
MANAGERS, ARE STATIONED AT THE LAKEVIEW, OREGON, HEADQUARTERS. THE
ACTIVITY'S PERSONNEL POLICIES ARE UNIFORM FOR ALL OF ITS EMPLOYEES, AND
WHILE SOME OF THESE POLICIES ARE DETERMINED AT THE SERVICE CENTER AND AT
THE STATE OFFICE, THE RECORD REVEALS THAT THE DISTRICT MANAGER AND HIS
STAFF HAVE AUTHORITY WITH RESPECT TO HIRING, REPRIMANDING, RATING,
DISCHARGING, AND PROMOTING DISTRICT EMPLOYEES. THE RECORD REVEALS THAT
THE DISTRICT MANAGER IS RESPONSIBLE FOR SUPERVISION AND GUIDANCE OF ALL
EMPLOYEES IN THE DISTRICT AND THAT HE DEVELOPS THE ANNUAL WORK PLAN FOR
THE LAKEVIEW DISTRICT SUBJECT ONLY TO BUREAU GUIDELINES. THE RECORD
REVEALS ALSO THAT THE DISTRICT MANAGER IS RESPONSIBLE FOR THE
PERFORMANCE OF THE ACTIVITY WITHOUT ANY SIGNIFICANT SUPERVISION FROM THE
STATE OFFICE AND THAT HE IS RESPONSIBLE FOR ALL INITIAL DECISIONS
REGARDING THE DISPOSITION AND USE OF THE LAND UNDER THE ACTIVITY'S
JURISDICTION.
WHILE THE ACTIVITY AGREES WITH THE NFFE THAT A UNIT CONSISTING OF THE
LAKEVIEW DISTRICT OFFICE IS APPROPRIATE, IT CONTENDS THAT CERTAIN OF ITS
EMPLOYEES ARE "PROFESSIONALS" WHO DO NOT HAVE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST WITH THE "NONPROFESSIONAL" EMPLOYEES AND,
THEREFORE, SHOULD BE EXCLUDED FROM ANY UNIT FOUND APPROPRIATE. THE
ACTIVITY CONCEDES, AND THE EVIDENCE ESTABLISHES, THAT THE EMPLOYEES
ALLEGED TO BE "PROFESSIONALS" SHARE COMMON SUPERVISION AND FACILITIES
WITH THE OTHER EMPLOYEES OF THE LAKEVIEW DISTRICT OFFICE, ARE PAID UNDER
THE SAME UNIFORM PAY SCHEDULE AS OTHER GS EMPLOYEES AND ARE ENTITLED TO
THE SAME ANNUAL LEAVE, SICK LEAVE, AND RETIREMENT BENEFITS AS OTHER
PERMANENT EMPLOYEES. HOWEVER, IT CONTENDS THAT BECAUSE OF SPECIAL
EDUCATIONAL QUALIFICATIONS, DIFFERENCES IN JOB FUNCTIONS, THE LACK OF
INTERCHANGE, AND DIFFERENT CAREER OPPORTUNITIES, EMPLOYEES CLASSED AS
"PROFESSIONALS" BY THE ACTIVITY SHOULD BE EXCLUDED FROM ANY UNIT FOUND
APPROPRIATE.
IN MY VIEW, THE TEST TO BE APPLIED IN DETERMINING WHETHER
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES MAY BE JOINED IN THE SAME
UNIT IS WHETHER SUCH EMPLOYEES SHARE COMMON CONDITIONS OF EMPLOYMENT,
SUCH AS COMMON SUPERVISION, LEAVE, AND BENEFITS, AND HAVE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WITH EACH OTHER. I FIND THAT THE
EVIDENCE CITED ABOVE ESTABLISHES THAT SUCH A COMMUNITY OF INTEREST
EXISTS IN THE INSTANT CASE AMONG ALL THE EMPLOYEES OF THE ACTIVITY,
INCLUDING THOSE THE ACTIVITY CLAIMS ARE "PROFESSIONALS." MOREOVER,
SECTION 10(A)(4) OF THE ORDER PROVIDES PROFESSIONAL EMPLOYEES THE
OPPORTUNITY TO DECIDE AS A GROUP AS TO WHETHER OR NOT THEY WISH TO BE
INCLUDED WITH NONPROFESSIONAL EMPLOYEES IN AN APPROPRIATE UNIT.
ACCORDINGLY, I SHALL NOT EXCLUDE PROFESSIONAL EMPLOYEES, IF ANY, FROM
THE UNIT FOUND APPROPRIATE ON THE BASIS THAT THEY LACK A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WITH NONPROFESSIONAL EMPLOYEES.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE UNIT SOUGHT BY
THE NFFE IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. THUS,
THE EVIDENCE ESTABLISHES THAT THE ACTIVITY CONSTITUTES A DISTINCT
ADMINISTRATIVE AND GEOGRAPHIC SUBDIVISION OF THE BUREAU OF LAND
MANAGEMENT; THAT THE DISTRICT MANAGER EXERCISES INITIAL DECISION-MAKING
AUTHORITY OVER, AND HAS RESPONSIBILITY FOR, THE DISPOSITION OF PUBLIC
LANDS WITHIN THE DISTRICT; THAT THE DISTRICT MANAGER EXERCISES
SUBSTANTIAL CONTROL OVER PERSONNEL IN THE DISTRICT, AND THAT THERE ARE
UNIFORM PERSONNEL POLICIES AND PROGRAMS FOR THE EMPLOYEES WITHIN THE
CLAIMED UNIT. /4/
TEMPORARY OR "SEASONAL" EMPLOYEES
THE ACTIVITY ASSERTS THAT CERTAIN EMPLOYEES CLASSIFIED AS "TEMPORARY"
OR "SEASONAL" HAVE A REASONABLE EXPECTANCY OF FUTURE EMPLOYMENT AND
SHOULD BE INCLUDED IN THE UNIT. IN THIS CONNECTION, THE RECORD REFLECTS
THAT BETWEEN 30 AND 35 INDIVIDUALS ARE HIRED EACH YEAR AS FIREFIGHTERS
FOR THE MONTHS OF JUNE THROUGH SEPTEMBER. THESE EMPLOYEES ARE, FOR THE
MOST PART, COLLEGE STUDENTS, AND THE EVIDENCE ESTABLISHES THAT IN THE
PAST SOME OF THESE INDIVIDUALS HAVE BEEN HIRED UPON GRADUATION AS
PERMANENT EMPLOYEES. THE RECORD INDICATES THAT 22 OF THE 31 EMPLOYEES
HIRED TO BEGIN WORK ON JUNE 1, 1972, WORKED IN THE SAME JOBS THE
PREVIOUS SUMMER. OF THESE 22 EMPLOYEES, 9 WORKED ALSO DURING THE SUMMER
OF 1970, AND 7 WORKED DURING THE SUMMER OF 1969. THE RECORD REFLECTS
THAT THESE EMPLOYEES PERFORM THE SAME WORK AS CERTAIN OTHER ACTIVITY
EMPLOYEES, RECEIVE ANNUAL LEAVE RIGHTS, HAVE THEIR SERVICE CREDITED FOR
THE PURPOSE OF TENURE AND ARE SUBJECT TO THE SAME PERSONNEL POLICIES AS
OTHER ACTIVITY EMPLOYEES. BECAUSE THE RECORD SHOWS THAT THE MAJORITY OF
THESE "SEASONAL" OR "TEMPORARY" EMPLOYEES WILL HAVE WORKED DURING TWO OR
MORE SEASONS AS OF SEPTEMBER 1972, I FIND THAT THEY HAVE A REASONABLE
EXPECTANCY OF FUTURE EMPLOYMENT AND THUS MANIFEST A SUBSTANTIAL AND
CONTINUING INTEREST IN THE TERMS AND CONDITIONS OF EMPLOYMENT ALONG WITH
THE PERMANENT EMPLOYEES. UNDER THESE CIRCUMSTANCES, I AM PERSUADED THAT
THEY SHARE A COMMUNITY OF INTEREST WITH OTHER ACTIVITY EMPLOYEES AND,
THEREFORE, SHOULD BE INCLUDED IN THE UNIT. /6/
I AM ADVISED ADMINISTRATIVELY THAT THE NFFE'S SHOWING OF INTEREST WAS
ADEQUATE AT THE TIME ITS PETITION WAS FILED IN THIS MATTER. IN APPLYING
SHOWING OF INTEREST REQUIREMENTS TO A SEASONAL OPERATION IN THE FEDERAL
SECTOR, I FIND THAT AN ADEQUATE SHOWING OF INTEREST MAY BE ESTABLISHED
BASED ON THE NUMBER OF EMPLOYEES EMPLOYED IN THE UNIT AT THE TIME A
REPRESENTATION PETITION IS FILED. /7/
FIRE CONTROL TECHNICIAN.
THE ACTIVITY CONTENDS THE FIRE CONTROL TECHNICIAN, GS-9, SHOULD BE
EXCLUDED FROM THE UNIT AS A SUPERVISOR. THE NFFE CONTENDS THAT AS THE
EMPLOYEE OCCUPYING THIS POSITION ACTS AS A SUPERVISOR ONLY FOUR MONTHS
OUT OF THE YEAR, HE SHOULD BE INCLUDED IN THE UNIT.
THE RECORD REFLECTS THAT FOR THE PERIOD FROM JUNE THROUGH SEPTEMBER
EACH YEAR THE EMPLOYEE OCCUPYING THIS POSITION ACTS AS THE SUPERVISOR
FOR THE 30 TO 35 "TEMPORARY" FIREFIGHTERS DISCUSSED ABOVE. DURING THE
REST OF EACH YEAR, HE HAS NO MANAGEMENT OR SUPERVISORY DUTIES OTHER THAN
HELPING TO PREPARE THE FIRE PLAN FOR THE COMING YEAR. IN MY OPINION, A
"SEASONAL SUPERVISOR" WHO SPENDS A PORTION OF THE WORKING YEAR, SUCH AS
THE EIGHT MONTHS HERE INVOLVED, AS RANK-AND-FILE EMPLOYEE AND THE
REMAINDER OF THE YEAR AS A SUPERVISOR, SHOULD BE INCLUDED IN AN EMPLOYEE
BARGAINING UNIT DURING THE "OUT OF SEASON" PERIOD WHEN HE IS PERFORMING
RANK AND FILE DUTIES. FURTHER, SUCH AN INDIVIDUAL SHOULD BE DEEMED
ELIGIBLE TO VOTE IN AN ELECTION PROVIDING THAT HE IS NOT IN A
SUPERVISORY STATUS AT THE TIME OF THE ELECTION. UNDER THESE
CIRCUMSTANCES, I FIND THAT THE VOTING ELIGIBILITY OF THE FIRE CONTROL
TECHNICIAN, GS-9, SHOULD BE DETERMINED IN ACCORDANCE WITH THE ABOVE
STATED PRINCIPLE. /8/ HOWEVER, HE WOULD BE INCLUDED IN THE UNIT ONLY
DURING THE PERIOD IN WHICH HE EXERCISES NO SUPERVISORY DUTIES.
CONFIDENTIAL EMPLOYEES.
THE PARTIES STIPULATED THAT THE SECRETARY TO THE DISTRICT MANAGER, IS
A "CONFIDENTIAL" EMPLOYEE AND SHOULD THEREFORE BE EXCLUDED FROM THE
UNIT. THE RECORD REFLECTS THAT THE EMPLOYEE IN THIS CLASSIFICATION IS
THE DISTRICT MANAGER'S PERSONAL SECRETARY, SERVES AS THE PERSONNEL
ASSISTANT FOR THE DISTRICT, AND IS THE INDIVIDUAL RESPONSIBLE FOR
VARIOUS TYPES OF CONFIDENTIAL RECORDS. THE EVIDENCE ESTABLISHES ALSO
THAT THE SECRETARY TO THE DISTRICT MANAGER WOULD BE INVOLVED IN A
CONFIDENTIAL CAPACITY TO THE DISTRICT MANAGER WHEN THE LATTER IS
FULFILLING HIS ROLE IN LABOR-MANAGEMENT MATTERS. UNDER THE FOREGOING
CIRCUMSTANCES, I FIND THAT THE SECRETARY TO THE DISTRICT MANAGER IS A
CONFIDENTIAL EMPLOYEE AND SHOULD BE EXCLUDED FROM THE UNIT FOUND
APPROPRIATE.
PROFESSIONAL EMPLOYEES.
THE PARTIES STIPULATED THAT SOME 9 EMPLOYEES IN 6 CLASSIFICATIONS
WERE "PROFESSIONAL" EMPLOYEES WITHIN THE MEANING OF THE ORDER. THE 6
CLASSIFICATIONS INVOLVED WERE REALTY SPECIALIST, RANGE AND WATERSHED
SPECIALIST, WILDLIFE BIOLOGIST, RANGE CONSERVATIONIST, FORESTER, AND
CIVIL ENGINEER. ALL OF THESE CLASSIFICATIONS, WITH THE EXCEPTION OF
CIVIL ENGINEER, APPEAR ON THE BUREAU OF LAND MANAGEMENT CAREER LADDER
FOR NATURAL RESOURCE MANAGEMENT SPECIALTIES WITH AN ENTRY LEVEL OF GS-5
AND A JOURNEYMAN LEVEL OF GS-9.
THE RECORD REVEALS THAT A REALTY SPECIALIST, GS-11, IS RESPONSIBLE
FOR MATTERS PERTAINING TO APPLICATIONS FOR USE OF THE PUBLIC LANDS.
INCLUDED IN THESE DUTIES ARE APPRAISAL FUNCTIONS TO DETERMINE THE VALUE
OF THE LANDS INVOLVED IN VARIOUS TRANSACTIONS IN ORDER THAT THE ACTIVITY
MAY MAKE PROPER CHARGES FOR RIGHTS OF WAY, APPLICATIONS, ETC. THE
REALTY SPECIALIST IS THE ONLY ONE OF THE CLAIMED "PROFESSIONAL"
DESIGNATIONS FOR WHICH THE ACTIVITY SUBMITTED A JOB DESCRIPTION. NO
PARTICULAR EDUCATIONAL REQUIREMENTS ARE SET OUT IN THE JOB DESCRIPTION
FOR THE JOURNEYMAN REALTY SPECIALIST POSITION. HOWEVER, THE REALTY
SPECIALIST, GS-11 IS REQUIRED TO HAVE SUCCESSFULLY COMPLETED THE
AMERICAN INSTITUTE OF REAL ESTATE APPRAISER COURSE. IN DEPARTMENT OF
THE INTERIOR, BUREAU OF LAND MANAGEMENT, RIVERSIDE DISTRICT AND LAND
OFFICE, CITED ABOVE, I SET FORTH THE CRITERIA FOR DETERMINING WHETHER OR
NOT AN EMPLOYEE QUALIFIED AS A PROFESSIONAL WITHIN THE MEANING OF THE
ORDER. IN THAT CASE, I DETERMINED THAT A REALTY SPECIALIST OF THE
BUREAU OF LAND MANAGEMENT WAS NOT A PROFESSIONAL EMPLOYEE BASED ON THE
VIEW THAT WHILE THE POSITION OCCUPIED BY THE REALTY SPECIALIST REQUIRES
HE HAVE KNOWLEDGE OF AN ADVANCED TYPE IN FIELD OF SCIENCE OR LEARNING.
RATHER, THE POSITION REQUIRES ONLY A GENERAL ACADEMIC EDUCATION
SUPPLEMENTED BY A SIX MONTH TRAINING COURSE AND ON-THE-JOB TRAINING. AS
THE RECORD IN THE SUBJECT CASE DOES NOT INDICATE THAT THE REALTY
SPECIALIST OF THE ACTIVITY HEREIN HAS DIFFERENT DUTIES OR IS SUBJECT TO
ANY SUBSTANTIALLY DIFFERENT EDUCATIONAL AND JOB REQUIREMENTS THAN THE
REALTY SPECIALIST AT THE RIVERSIDE DISTRICT OFFICE, I FIND THE REALTY
SPECIALIST EMPLOYED IN THE LAKEVIEW DISTRICT OFFICE IS NOT A
PROFESSIONAL EMPLOYEE WITHIN THE MEANING OF THE ORDER.
THE DUTIES OF THE RANGE AND WATERSHED SPECIALIST RUN FROM BEING THE
TECHNICAL SPECIALIST FOR THE DISTRICT ON ALL RANGE AND WATERSHED MATTERS
TO THE INTERPRETATION AND REVIEW OF MANUAL RELEASES AND INSTRUCTION
MEMORANDA. HE ASSISTS THE AREA MANAGERS IN THE DEVELOPMENT OF LAND
ALLOTMENT MANAGEMENT PLANS; IN RESOLVING PARTICULAR PROBLEMS RELATED TO
HIS SPECIALITY; AND WHEN AVAILABLE, HE PROVIDES THE AREA MANAGERS WITH
MANPOWER ASSISTANCE. IN CARRYING OUT HIS DUTIES, THE RANGE AND
WATERSHED SPECIALIST USES HIS OWN INITIATIVE, RESOURCES, AND JUDGMENT.
WHILE THE RECORD DOES NOT REVEAL THE EDUCATIONAL REQUIREMENTS FOR THE
POSITION OF RANGE AND WATERSHED SPECIALIST, THE RECORD REFLECTS THAT THE
EMPLOYEE OCCUPYING THIS POSITION AT THE ACTIVITY HAS A BACHELOR'S DEGREE
IN RANGE CONSERVATION.
AN EMPLOYEE IN THE CLASSIFICATION WILDLIFE BIOLOGIST IS IN THE SAME
CLASSIFICATION SERIES AS AN EMPLOYEE CLASSIFIED AS A WILDLIFE MANAGEMENT
SPECIALIST, WHOM I FOUND NOT TO BE A PROFESSIONAL IN DEPARTMENT OF THE
INTERIOR, BUREAU OF LAND MANAGEMENT, RIVERSIDE DISTRICT AND LAND OFFICE,
CITED ABOVE. THE RECORD REVEALS THE INDIVIDUAL OCCUPYING THE POSITION
OF WILDLIFE BIOLOGIST AT THE ACTIVITY HAS A BACHELOR'S DEGREE IN RANGE
MANAGEMENT AND A MASTER'S DEGREE IN WILDLIFE MANAGEMENT. THE RECORD
REVEALS FURTHER THAT THE REQUIRED DUTIES OF THIS POSITION ARE SIMILAR TO
THOSE OF THE RANGE AND WATERSHED SPECIALIST EXCEPT THAT A WILDLIFE
BIOLOGIST'S JOB FUNCTIONS ARE RELATED TO WILDLIFE PROBLEMS. IN THIS
CONNECTION, HE ASSISTS THE AREA MANAGERS IN EVALUATING SUCH WILDLIFE
PROBLEMS AS THE NEED TO IMPROVE WILDLIFE HABITAT, RESTRICTIONS NECESSARY
IN RESOURCE USE PLANS TO BENEFIT WILDLIFE, AND THE REVIEW OF PROPOSALS
FOR THE USE OF PESTICIDES TO DETERMINE POSSIBLE ADVERSE IMPACT ON
WILDLIFE. THE RECOMMENDATIONS MADE BY THE EMPLOYEE OCCUPYING THIS
POSITION ARE NOT REVIEWED AT THE DISTRICT LEVEL FROM A TECHNICAL
STANDPOINT, BUT ONLY FROM A MANAGEMENT STANDPOINT.
THERE ARE FOUR EMPLOYEES OF THE ACTIVITY DESIGNATED AS RANGE
CONSERVATIONISTS, THREE OF WHOM ARE AT GS-9 LEVEL AND ONE AT THE GS-7
LEVEL. THEY ARE IN THE SAME CLASSIFICATION SERIES AS THE RANGE AND
WATERSHED SPECIALIST DISCUSSED ABOVE. THE RECORD REFLECTS THAT ONE OF
THESE EMPLOYEES HAS A BACHELOR OF SCIENCE DEGREE IN AGRONOMY AND THAT AT
LEAST ONE OF THE OTHERS HAS A BACHELOR OF SCIENCE DEGREE IN RANGE
MANAGEMENT. THE RECORD REVEALS THAT ALTHOUGH THE NATURE OF THEIR DUTIES
VARY SOMEWHAT FROM ONE GEOGRAPHICAL AREA TO ANOTHER BECAUSE OF THE
DIFFERENT PHYSICAL MAKEUP OF THE VARIOUS AREAS, RANGE CONSERVATIONISTS
ARE RESPONSIBLE ESSENTIALLY FOR THE PROTECTION AND PROPER USAGE OF THE
RANGE AND GRAZING LANDS. THEY HAVE THE RESPONSIBILITY FOR DEVELOPING
MANAGEMENT PLANS FOR VARIOUS LAND ALLOTMENTS ASSIGNED BY THE AREA
MANAGERS. IN THIS CONNECTION, THEY ANALYZE THE CAPABILITY OF RANGE
AREAS, THE OBJECTIVES SOUGHT IN THE MANAGEMENT PLAN FOR THAT PARTICULAR
ALLOTMENT OF LAND. TO DETERMINE THE OBJECTIVES OF THIS PLAN, RANGE
CONSERVATIONISTS HAVE TO TAKE INTO CONSIDERATION SUCH MATTERS AS
WATERSHED STABILIZATION, THE WILDLIFE HABITAT, THE LIVESTOCK FORAGE
REQUIREMENTS, AND OTHER FACTORS WHICH MIGHT AFFECT THE ENVIRONMENTAL
EQUILIBRIUM IN THAT LAND ALLOTMENT. THE MANAGEMENT PLAN, WHEN
COMPLETED, IS SUBJECT TO REVIEW BY THE AREA MANAGER AND, ULTIMATELY, BY
THE DISTRICT MANAGER.
THE EMPLOYEE DESIGNATED AS A FORESTER IN THE LAKEVIEW DISTRICT OFFICE
HAS A BACHELOR OF SCIENCE DEGREE IN FORESTRY AND IS RESPONSIBLE TO THE
AREA MANAGER OF THE LOST RIVER AREA FOR DEVELOPMENT OF TIMBER SALE PLANS
WITHIN THE GUIDELINES SET BY THE STATE OFFICE AND THE AREA MANAGER. /9/
IN DEVELOPING THE TIMBER SALE PLAN, THE FORESTER SELECTIVELY CHOOSES THE
TREES TO BE CUT; APPRAISES THE VALUE OF THE TIMBER; AND SUPERVISES THE
SALES CONTRACT TO MAKE SURE THAT ALL THE CONTRACT STIPULATIONS ARE MET.
HE HAS NO DAY-TO-DAY SUPERVISION IN ACCOMPLISHING THESE TASKS, BUT HE
MUST SUBMIT HIS TIMBER SALE PLAN TO THE AREA MANAGER FOR APPROVAL.
NORMALLY, THE PLAN SUBMITTED BY THE FORESTER IS ADOPTED BY THE AREA
MANAGER AND GIVEN FINAL APPROVAL BY THE STATE OFFICE.
THE REMAINING EMPLOYEE CLASSIFICATION DESIGNATED AS A "PROFESSIONAL"
BY THE ACTIVITY IS THE CLASSIFICATION "CIVIL ENGINEER." THE INDIVIDUAL
EMPLOYED BY THE ACTIVITY IN THIS CLASSIFICATION IS A GS-9, AND HAS BEEN
RATED ELIGIBLE AS A HIGHWAY ENGINEER BY THE CIVIL SERVICE COMMISSION.
THE RECORD REVEALS THAT THE EMPLOYEE IN QUESTION DOES NOT HAVE A COLLEGE
DEGREE AND THAT HIS RATING AS A HIGHWAY ENGINEER WAS ATTAINED ON THE
BASIS OF SOME COLLEGE WORK, EXPERIENCE, AND HIS SCORE ON AN EXAMINATION.
THE ACTIVITY CONTENDS THAT NOTWITHSTANDING THE (CIVIL ENGINEER'S
LIMITED EDUCATIONAL BACKGROUND, THIS JOB CLASSIFICATION IS TRADITIONALLY
ACCEPTED AS A PROFESSIONAL POSITION. HOWEVER, MINIMAL EVIDENCE WAS
ADDUCED AS TO THE ACTUAL JOB REQUIREMENTS OR DUTIES OF THE EMPLOYEE
INVOLVED.
IN MY VIEW, THE FOREGOING RECORD DOES NOT PROVIDE AN ADEQUATE BASIS
UPON WHICH TO MAKE A DETERMINATION REGARDING THE PROFESSIONAL STATUS OF
THE FOLLOWING EMPLOYEE CLASSIFICATIONS: RANGE AND WATERSHED SPECIALIST,
WILDLIFE BIOLOGIST, RANGE CONSERVATIONIST, FORESTER, AND CIVIL ENGINEER.
THUS, IN THE INSTANT CASE, WHILE THE RECORD REFLECTS IN CERTAIN
INSTANCES THE ACTUAL EDUCATIONAL BACKGROUND OF THE ALLEGED
"PROFESSIONAL" EMPLOYEES IN THESE CATEGORIES, IT DOES NOT REFLECT
CLEARLY THE EDUCATIONAL REQUIREMENTS FOR INCUMBENTS IN THESE CATEGORIES.
NOR DOES THE RECORD REVEAL WHETHER, IF SPECIALIZED INTELLECTUAL
INSTRUCTION IS WITHIN THE JOB DESCRIPTION REQUIREMENTS, THE PRODUCT OF
SUCH INSTRUCTION IS, IN FACT, UTILIZED IN PERFORMANCE OF THE PARTICULAR
WORK INVOLVED. /10/ MOREOVER, THE LIMITED DESCRIPTION OF THE WORK
PERFORMED BY THESE EMPLOYEES DOES NOT CLEARLY INDICATE THAT THE OTHER
CRITERIA NECESSARY FOR PROFESSIONAL STATUS SET FORTH IN DEPARTMENT OF
THE INTERIOR, BUREAU OF LAND MANAGEMENT, RIVERSIDE DISTRICT AND LAND
OFFICE, CITED ABOVE, ARE FULLY MET BY ANY OF THE EMPLOYEES IN THESE
CLASSIFICATIONS. IF THESE EMPLOYEES ARE NOT PROFESSIONAL EMPLOYEES
WITHIN THE MEANING OF THE ORDER IT WOULD FOLLOW THAT A SEPARATE
SELF-DETERMINATION ELECTION WOULD NOT BE WARRANTED. AS I CANNOT
DETERMINE ON THE BASIS OF THE RECORD ADDUCED IN THE SUBJECT CASE WHETHER
THE PETITIONED FOR UNIT CONTAINS PROFESSIONAL EMPLOYEES, I SHALL REMAND
THE SUBJECT CASE TO THE APPROPRIATE REGIONAL ADMINISTRATOR FOR THE
PURPOSE OF REOPENING THE RECORD IN ORDER TO SECURE ADDITIONAL EVIDENCE,
AS DISCUSSED ABOVE, CONCERNING THE PROFESSIONAL STATUS OF THE
AFOREMENTIONED EMPLOYEE CLASSIFICATIONS IN THE LAKEVIEW DISTRICT OFFICE
OF THE BUREAU OF LAND MANAGEMENT.
IT IS HEREBY ORDERED THAT THE SUBJECT CASE BE, AND IT HEREBY IS,
REMANDED TO THE APPROPRIATE REGIONAL ADMINISTRATOR.
DATED, WASHINGTON, D.C.
OCTOBER 30, 1972
/1/ THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
642, HEREIN CALLED NFFE, FILED AN UNTIMELY BRIEF WHICH HAS NOT BEEN
CONSIDERED.
/2/ THE SERVICE CENTERS ALSO PROVIDE PERSONNEL AND SPECIALIZED
SERVICES IN THE FIELDS OF RANGE AND WATERSHED CONSERVATION, WILDLIFE
MANAGEMENT, FORESTRY, AND REAL ESTATE, FOR THE SPECIFIC STATES IN THEIR
OWN SERVICE CENTER AREA. FOR THIS PURPOSE, THE PORTLAND SERVICE CENTER
AREA ENCOMPASSES THE STATES OF OREGON, IDAHO, NEVADA, CALIFORNIA,
WASHINGTON, AND ALASKA, WHILE THE DENVER SERVICE CENTER AREA INCLUDES
THE STATES OF MONTANA, WYOMING, COLORADO, UTAH, ARIZONA, AND NEW MEXICO.
/3/ THE LAKEVIEW DISTRICT OFFICE IS ONE OF TEN DISTRICT OFFICES UNDER
THE PORTLAND STATE OFFICE AND IS LOCATED APPROXIMATELY 340 MILES FROM
THAT STATE OFFICE.
/4/ CF. DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT,
RIVERSIDE DISTRICT AND LAND OFFICE, A/SLMR NO. 170.
/5/ THE PARTIES STIPULATED, AND THE RECORD SUPPORTS, THAT EMPLOYEES
WHO OCCUPY THE POSITIONS OF DISTRICT MANAGER, DIVISION OF RESOURCE
MANAGEMENT CHIEF, DIVISION OF ADMINISTRATION CHIEF, DIVISION OF
OPERATIONS CHIEF AND THE THREE AREA MANAGERS ARE SUPERVISORS AND/OR
MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE ORDER. I, THEREFORE,
SHALL EXCLUDE THEM FROM THE UNIT FOUND APPROPRIATE.
/6/ SEE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE,
SCHENCK CIVILIAN CONSERVATION CENTER, NATIONAL FORESTS OF NORTH
CAROLINA, A/SLMR NO. 116; UNITED STATES DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, SANTA FE NATIONAL FOREST, SANTA FE, NEW MEXICO, A/SLMR
NO. 88.
THE PARTIES STIPULATED THAT "CASUAL" EMPLOYEES SHOULD BE EXCLUDED
FROM THE UNIT. BASED ON RECORD EVIDENCE THAT "CASUAL" EMPLOYEES ARE
HIRED ONLY TO FIGHT A PARTICULAR FIRE AND ARE TERMINATED AT THE END OF
THE FIRE, I FIND THAT "CASUAL" EMPLOYEES HAVE NO REASONABLE EXPECTANCY
OF FUTURE EMPLOYMENT AND SHOULD BE EXCLUDED FROM THE UNIT.
/7/ MY DECISION IN THIS REGARD WITH RESPECT TO "SEASONAL" EMPLOYEES
AND THE EFFECT OF THEIR INCLUSION IN THE CLAIMED UNIT ON THE PRESCRIBED
SHOWING OF INTEREST WOULD NOT APPLY TO THE SHOWING OF INTEREST
REQUIREMENTS IN UNITS WHICH PROPERLY INCLUDE NONSEASONAL, LESS THAN
FULL-TIME EMPLOYEES, WHO SHARE A COMMUNITY OF INTEREST WITH FULL-TIME
EMPLOYEES.
/8/ MY FINDING HEREIN IS LIMITED SOLELY TO A "SEASONAL SUPERVISOR"
WHO PERFORMS SUPERVISORY FUNCTIONS FULL-TIME DURING A PERIOD OF THE WORK
YEAR. WITH RESPECT TO EMPLOYEES WHO PERFORM SUPERVISORY FUNCTIONS PART
OF EACH DAY OR WEEK, OR FILL IN SPORADICALLY FOR A FULL-TIME SUPERVISOR,
THE FACTS OF EACH CASE SHALL DETERMINE THEIR SUPERVISORY STATUS.
/9/ THE RECORD DISCLOSES THAT THE LOST RIVER AREA HAS THE ONLY
SIGNIFICANT STAND OF TIMBER IN THE DISTRICT AND, THEREFORE, HAS THE ONLY
FORESTER.
/10/ IN A/SLMR NO. 170, I FOUND THAT EMPLOYEES WITH THE DESIGNATION
OF RANGE CONSERVATIONIST AND WILDLIFE MANAGEMENT SPECIALIST WERE NOT
PROFESSIONALS BECAUSE THE EVIDENCE IN THAT CASE ESTABLISHED THAT NEITHER
OF THESE JOB DESIGNATIONS REQUIRED A PROLONGED COURSE OF SPECIALIZED
INTELLECTUAL INSTRUCTION OR STUDY. RATHER, THESE POSITIONS REQUIRED A
GENERAL ACADEMIC EDUCATION SUPPLEMENTED BY EXPERIENCE AND ON-THE-JOB
TRAINING. THE RECORD HEREIN DOES NOT CONTAIN EITHER THE JOB
DESCRIPTIONS OR OTHER EVIDENCE OF THE EDUCATIONAL REQUIREMENTS FOR THE
SIMILAR EMPLOYEE CLASSIFICATION WILDLIFE BIOLOGIST OR THE RANGE
CONSERVATIONIST.
2 A/SLMR 211; P. 512; CASE NO. 62-3092(CA); OCTOBER 30, 1972.
U.S. DEPARTMENT OF DEFENSE, DEPARTMENT OF
THE ARMY, ARMY MATERIEL COMMAND, AUTOMATED
LOGISTICS MANAGEMENT SYSTEMS AGENCY
A/SLMR NO. 211
THIS CASE INVOLVES A COMPLAINT FILED BY NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1763 (COMPLAINANT) AGAINST U.S. DEPARTMENT OF
DEFENSE (DOD), DEPARTMENT OF THE ARMY, ARMY MATERIEL COMMAND, AUTOMATED
LOGISTICS MANAGEMENT SYSTEMS AGENCY (RESPONDENT) ALLEGING A VIOLATION OF
SECTION 19(A)(6) OF THE ORDER. THE BASIS OF THE COMPLAINT WAS THAT THE
RESPONDENT, IN ACCORDANCE WITH DOD POLICY, HAD REFUSED TO NEGOTIATE A
DUES WITHHOLDING AGREEMENT SEPARATE AND APART FROM ANY NEGOTIATIONS
REGARDING A BASIC COLLECTIVE-BARGAINING AGREEMENT. THE COMPLAINANT
ADDITIONALLY ALLEGED THAT THE DOD POLICY VIOLATED THE ORDER AND THAT THE
CHARGE FILED AGAINST THE RESPONDENT HAD NOT BEEN REPLIED TO WITHIN 30
DAYS FROM THE RECEIPT THEREOF BY THE RESPONDENT AND THAT SUCH FAILURE
WAS IN VIOLATION OF SECTION 203.2 OF THE ASSISTANT SECRETARY'S
REGULATIONS. THIS CASE WAS BEFORE THE ASSISTANT SECRETARY BASED ON A
STIPULATION OF FACTS, ISSUES AND ACCOMPANYING EXHIBITS SUBMITTED BY THE
PARTIES.
WITH RESPECT TO THE UNFAIR LABOR PRACTICE ALLEGATION BASED ON THE
ALLEGED FAILURE OF THE RESPONDENT TO REPLY TO THE CHARGE FILED BY THE
COMPLAINANT WITHIN 30 DAYS OF ITS RECEIPT, THE ASSISTANT SECRETARY FOUND
THAT SUCH A REPLY WAS NOT REQUIRED UNDER SECTION 203.2 OF THE ASSISTANT
SECRETARY'S REGULATIONS AND THAT, IN ANY EVENT, A FAILURE TO FOLLOW THE
REGULATIONS IN THIS REGARD WOULD NOT CONSTITUTE A REFUSAL TO CONSULT,
CONFER, OR NEGOTIATE WITHIN THE MEANING OF THE ORDER.
THE ASSISTANT SECRETARY ALSO CONCLUDED THAT THE ISSUES RAISED AS A
RESULT OF THE RESPONDENT'S REFUSAL TO NEGOTIATE A SEPARATE DUES
WITHHOLDING AGREEMENT BASED ON AN EXISTING AGENCY POLICY INVOLVED
QUESTIONS OF NEGOTIABILITY. IN THESE CIRCUMSTANCES, IT WAS DETERMINED
THAT THE PROPER RESOLUTION OF SUCH ISSUES WAS THROUGH THE SECTION
11(C)(2) - 11(C)(4) PROCEDURES OF THE ORDER. ACCORDINGLY, THE ASSISTANT
SECRETARY FOUND THAT THE COMPLAINT COULD NOT BE ENTERTAINED BY HIM AT
THE PRESENT TIME AND, THEREFORE, HE ORDERED THAT THE COMPLAINT BE
DISMISSED.
U.S. DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE ARMY,
ARMY MATERIEL COMMAND,
AUTOMATED LOGISTICS MANAGEMENT
SYSTEMS AGENCY
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1763
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO REGIONAL
ADMINISTRATOR CULLEN P. KEOUGH'S AUGUST 11, 1972 ORDER TRANSFERRING CASE
TO THE ASSISTANT SECRETARY OF LABOR PURSUANT TO SECTION 205.5(A) OF THE
RULES AND REGULATIONS. UPON CONSIDERATION OF THE ENTIRE RECORD IN THE
SUBJECT CASE, WHICH INCLUDES THE PARTIES' STIPULATION OF FACTS AND
ACCOMPANYING EXHIBITS, /1/ I FIND AS FOLLOWS:
ON FEBRUARY 8, 1972, /2/ THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1763, HEREIN CALLED THE COMPLAINANT, FILED AN UNFAIR
LABOR PRACTICE CHARGE PURSUANT TO SECTION 203.2 OF THE ASSISTANT
SECRETARY'S REGULATIONS, WHEREIN IT WAS CONTENDED THAT THE U.S.
DEPARTMENT OF DEFENSE DEPARTMENT OF THE ARMY, ARMY MATERIEL COMMAND,
AUTOMATED LOGISTICS MANAGEMENT SYSTEMS AGENCY, HEREIN CALLED THE
RESPONDENT, HAD VIOLATED SECTION 19(A)(1), (2), (5) AND (6) OF EXECUTIVE
ORDER 11491, AS AMENDED, BY REFUSING TO NEGOTIATE A DUES WITHHOLDING
AGREEMENT PRIOR TO THE NEGOTIATION OF A BASIC COLLECTIVE-BARGAINING
AGREEMENT.
ON APRIL 10 THE COMPLAINT IN THE SUBJECT CASE WAS FILED ALLEGING THAT
THE RESPONDENT HAD VIOLATED SECTION 19(A)(1), (3) AND (6) OF THE ORDER
BASED ON ITS FAILURE TO RESPOND TO THE COMPLAINANT'S UNFAIR LABOR
PRACTICE CHARGE WITHIN THE 30 DAY "TIMEFRAME." ON JULY 12 THE COMPLAINT
WAS AMENDED TO DELETE THE 19(A)(1) AND (3) ALLEGATIONS BUT RETAINED THE
19(A)(6) ALLEGATION WITH RESPECT TO THE FAILURE TO RESPOND TO THE
COMPLAINANT'S UNFAIR LABOR PRACTICE CHARGE. /3/
IN THE PARTIES' STIPULATION OF FACTS IT IS REQUESTED THAT THE
ASSISTANT SECRETARY RENDER A DECISION WITH RESPECT TO THE FOLLOWING
ISSUES: (1) WHETHER THE RESPONDENT VIOLATED SECTION 203.2 OF THE
ASSISTANT SECRETARY'S REGULATIONS WHEN IT FAILED TO RESPOND WITHIN 30
DAYS TO THE CHARGE /4/ FILED ON FEBRUARY 8; (2) WHETHER THE RESPONDENT
VIOLATED SECTION 19(A)(6) OF THE ORDER WHEN IT REFUSED TO NEGOTIATE A
DUES WITHHOLDING AGREEMENT IN ADVANCE OF A BASIC COLLECTIVE-BARGAINING
AGREEMENT; AND (3) WHETHER THE ESTABLISHED POLICY OF THE DEPARTMENT OF
DEFENSE, HEREIN CALLED DOD, AS REFLECTED IN LABOR RELATIONS BULLETIN NO.
52 /5/ REGARDING DUES WITHHOLDING AGREEMENTS IS IN CONFLICT WITH THE
PROVISIONS OF THE ORDER.
THE STIPULATION REVEALS THAT ON JANUARY 19 AN ELECTION WAS CONDUCTED
IN WHICH A MAJORITY OF THE UNIT EMPLOYEES CHOSE THE COMPLAINANT AS THEIR
EXCLUSIVE BARGAINING REPRESENTATIVE. ON JANUARY 25, PRIOR TO THE
ISSUANCE OF THE CERTIFICATION OF REPRESENTATIVE, /6/ THE COMPLAINANT
WROTE THE RESPONDENT ENCLOSING A DRAFT DUES WITHHOLDING AGREEMENT AND
REQUESTING THE RESPONDENT TO ENTER INTO NEGOTIATIONS REGARDING SUCH AN
AGREEMENT. IN ITS LETTER, THE COMPLAINANT INDICATED THAT ANY SEPARATE
AGREEMENT REACHED AS TO DUES WITHHOLDING WOULD BE INCLUDED IN "THE BASIC
CONTRACT TO BE NEGOTIATED AT A LATER DATE."
ON JANUARY 26 IN A TELEPHONE CONVERSATION BETWEEN THE RESPONDENT'S
CIVILIAN PERSONNEL OFFICER, THE COMPLAINANT'S ACTING PRESIDENT AND AN
OFFICIAL OF THE LABOR RELATIONS CIVILIAN PERSONNEL DIVISION OF THE ARMY
MATERIEL COMMAND, WASHINGTON, D.C., THE LATTER STATED THAT IN ACCORDANCE
WITH THE POLICY OF THE DOD AND THE DEPARTMENT OF THE ARMY REGARDING DUES
WITHHOLDING AGREEMENTS THE ARMY MATERIEL COMMAND HAD INSTRUCTED THE
RESPONDENT TO DENY ANY REQUEST FOR A DUES WITHHOLDING AGREEMENT UNTIL
THE NEGOTIATION OF A BASIC COLLECTIVE-BARGAINING AGREEMENT.
ON FEBRUARY 7, THE RESPONDENT REPLIED IN WRITING TO THE COMPLAINANT'S
JANUARY 25 REQUEST TO NEGOTIATE A DUES WITHHOLDING AGREEMENT AND STATED
THAT SUCH REQUEST COULD NOT BE "HONORED." ALSO, THE RESPONDENT CONFIRMED
THE ARMY MATERIEL COMMAND'S POLICY DISCUSSED PREVIOUSLY IN THE PARTIES
TELEPHONE CONVERSATION OF JANUARY 26, AND ENCLOSED A LETTER TO THE
RESPONDENT FROM ARMY MATERIEL COMMAND HEADQUARTERS DATED JANUARY 31 (1)
CONFIRMING THE JANUARY 26 TELEPHONE CONVERSATION; (2) ENUNCIATING THE
POLICY OF THE DOD AND THE DEPARTMENT OF THE ARMY THAT "MEMBERS OF UNITS
GRANTED EXCLUSIVE RECOGNITION AFTER 23 NOVEMBER 1971, ARE NOT ENTITLED
TO HAVE DUES WITHHELD UNLESS THEY HAVE AN APPROVED LABOR-MANAGEMENT
NEGOTIATED AGREEMENT THAT INCLUDES A DUES WITHHOLDING PROVISION"; AND
(3) ADVISING THAT THE MATTER HAD BEEN DISCUSSED WITH THE NATIONAL
HEADQUARTERS OF NATIONAL FEDERATION OF FEDERAL EMPLOYEES.
ALL OF THE FACTS PRESENTED ABOVE ARE DERIVED FROM THE PARTIES'
STIPULATION AND ACCOMPANYING EXHIBITS.
AS TO THE FIRST ISSUE PRESENTED INVOLVING THE RESPONDENT'S ALLEGED
FAILURE TO RESPOND WITHIN 30 DAYS TO THE COMPLAINANT'S CHARGE OF
FEBRUARY 8, THERE IS NO REQUIREMENT UNDER THE ASSISTANT SECRETARY'S
REGULATIONS THAT A PARTY AGAINST WHOM A CHARGE HAS BEEN FILED MUST FILE
A RESPONSE TO SUCH CHARGE. RATHER, THE APPLICABLE REGULATIONS PROVIDE,
IN PART, THAT IF INFORMAL ATTEMPTS TO RESOLVE THE ALLEGED UNFAIR LABOR
PRACTICE ARE UNSUCCESSFUL IN DISPOSING OF THE MATTER WITHIN 30 DAYS, A
PARTY MAY FILE A COMPLAINT. THE ONLY OTHER LIMITATIONS ON THE FILING OF
A COMPLAINT ARE THAT IT MUST BE FILED WITHIN 9 MONTHS OF THE OCCURRENCE
OF THE ALLEGED UNFAIR LABOR PRACTICE OR WITHIN 30 DAYS OF THE RECEIPT BY
THE CHARGING PARTY OF THE FINAL DECISION, WHICHEVER IS THE SHORTER
PERIOD OF TIME.
HOWEVER, EVEN ASSUMING THAT THE RESPONDENT'S CONDUCT WAS INCONSISTENT
WITH THE ASSISTANT SECRETARY'S REGULATIONS, IT WOULD NOT FOLLOW THAT
SUCH CONDUCT WAS IN DEROGATION OF ITS OBLIGATION TO CONSULT, CONFER, OR
NEGOTIATE UNDER THE ORDER. THUS, THE OBLIGATION TO CONSULT, CONFER, OR
NEGOTIATE RELATES TO THE COLLECTIVE-BARGAINING RELATIONSHIP BETWEEN AN
INCUMBENT LABOR ORGANIZATION AND AN AGENCY OR ACTIVITY. IT DOES NOT
RELATE TO WHETHER ONE OF THE PARTIES IN A COLLECTIVE-BARGAINING
RELATIONSHIP IS COMPLYING WITH SECTION 203 OF THE ASSISTANT SECRETARY'S
REGULATIONS. QUESTIONS RELATING TO COMPLIANCE WITH SUCH REGULATIONS ARE
ADMINISTRATIVE MATTERS TO BE ENFORCED BY THE ASSISTANT SECRETARY IN THE
PROCESSING OF UNFAIR LABOR PRACTICE CASES UNDER THE ORDER.
WITH RESPECT TO THE REMAINING ISSUES INVOLVING QUESTIONS RELATED TO
THE RESPONDENT'S REFUSAL TO NEGOTIATE A DUES WITHHOLDING AGREEMENT PRIOR
TO NEGOTIATING AN OVERALL COLLECTIVE-BARGAINING AGREEMENT, IT IS CLEAR
THAT RESPONDENT AT NO TIME INFORMED THE COMPLAINANT THAT DUES
WITHHOLDING WAS NOT A SUBJECT FOR NEGOTIATIONS. RATHER, THE RESPONDENT
TOOK THE POSITION THAT ESTABLISHED AGENCY POLICY PROHIBITED THE
RESPONDENT FROM ENTERING INTO NEGOTIATIONS WITH RESPECT TO A DUES
WITHHOLDING AGREEMENT SEPARATE AND APART FROM AN "APPROVED
LABOR-MANAGEMENT NEGOTIATED AGREEMENT." IT IS THIS POLICY, AS
INTERPRETED BY THE RESPONDENT, AND THE RESULTING REFUSAL BY THE
RESPONDENT TO DISCUSS THE MATTER PRIOR TO THE PARTIES' NEGOTIATIONS
REGARDING A "TOTAL BARGAINING PACKAGE" WHICH THE COMPLAINANT ASSERTS ARE
VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER.
THE RESPONDENT'S POSITION IN THIS MATTER IS THAT IT CANNOT NEGOTIATE
A SEPARATE DUES WITHHOLDING AGREEMENT BECAUSE OF AN EXISTING AGENCY
POLICY WHICH REQUIRES THAT THE SUBJECT OF DUES WITHHOLDING BE CONSIDERED
A PART OF THE "TOTAL BARGAINING PACKAGE." THIS POSITION RAISES A
NEGOTIABILITY ISSUE. THE PROPER RESOLUTION OF SUCH AN ISSUE IS THROUGH
THE SECTION 11(C)(2) -- 11(C)(4) PROCEDURES OF THE ORDER. /7/ IN THESE
CIRCUMSTANCES, I FIND THAT THE UNFAIR LABOR PRACTICE COMPLAINT IN THE
SUBJECT CASE MAY NOT BE ENTERTAINED BY THE ASSISTANT SECRETARY AT THIS
TIME. /8/ ACCORDINGLY, I SHALL ORDER THAT THE COMPLAINT BE DISMISSED.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 62-3093(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 30, 1972
/1/ THE PARTIES DID NOT FILE BRIEFS.
/2/ UNLESS OTHERWISE INDICATED, ALL DATES OCCURRED IN 1972.
/3/ WHILE THE COMPLAINT, AS AMENDED, ALLEGES SPECIFICALLY A REFUSAL
TO CONSULT, CONFER, OR NEGOTIATE BASED ON THE FAILURE TO RESPOND TO THE
COMPLAINT'S UNFAIR LABOR PRACTICE CHARGE, IT IS CLEAR THAT THE GRAVAMEN
OF THE COMPLAINT HEREIN WAS THE RESPONDENT'S REFUSAL TO NEGOTIATE A DUES
WITHHOLDING AGREEMENT PRIOR TO NEGOTIATING AN OVERALL
COLLECTIVE-BARGAINING AGREEMENT. IN THESE CIRCUMSTANCES, I SHALL NOT
LIMIT MY CONSIDERATION OF THE UNFAIR LABOR PRACTICE COMPLAINT HEREIN TO
THE ALLEGATION REGARDING THE FAILURE TO RESPOND TO THE COMPLAINANT'S
CHARGE.
/4/ ALTHOUGH THE COMPLAINANT REFERS TO ITS FEBRUARY 8 LETTER AS A
"COMPLAINT," IT APPEARS THAT SUCH LETTER WAS, IN FACT, AN UNFAIR LABOR
PRACTICE CHARGE WITHIN THE MEANING OF SECTION 203.2 OF THE ASSISTANT
SECRETARY'S REGULATIONS.
/5/ THE PERTINENT PROVISION OF THE BULLETIN, DATED SEPTEMBER 22,
1971, STATED: "WHERE FIRST CONTRACTS ARE BEING NEGOTIATED, DUES
CHECK-OFF PROPOSALS WILL BE CONSIDERED AS PART OF THE TOTAL BARGAINING
PACKAGE . . . THE POINT TO KEEP IN MIND IS THAT DUES CHECK-OFF IS NOT A
RIGHT ACCRUED AT THE TIME EXCLUSIVE STATUS IS CERTIFIED BY THE LABOR
DEPARTMENT. WHEN A LABOR ORGANIZATION IS CERTIFIED AS THE EXCLUSIVE
BARGAINING AGENT, IT EARNS THE RIGHT TO NEGOTIATE WITH RESPECT TO
PERSONNEL POLICIES, PRACTICES AND WORKING CONDITIONS AFFECTING EMPLOYEES
IN THE UNIT. THE NEGOTIATION OF DUES CHECK-OFF ARRANGEMENTS IS A PART
OF THE TOTAL PACKAGE AND DOES NOT EXIST AS AN INDEPENDENT RIGHT."
/6/ THE COMPLAINANT WAS CERTIFIED AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE ON JANUARY 28.
/7/ SECTION 11(C) PROVIDES THAT: "IF, IN CONNECTION WITH
NEGOTIATIONS, AN ISSUE DEVELOPS AS TO WHETHER A PROPOSAL IS CONTRARY TO
LAW, REGULATION, CONTROLLING AGREEMENT, OR THIS ORDER AND THEREFORE NOT
NEGOTIABLE, IT SHALL BE RESOLVED AS FOLLOWS: (1) AN ISSUE WHICH
INVOLVES INTERPRETATION OF A CONTROLLING AGREEMENT AT A HIGHER AGENCY
LEVEL IS RESOLVED UNDER THE PROCEDURES OF THE CONTROLLING AGREEMENT, OR,
IF NONE, UNDER AGENCY REGULATIONS; (2) AN ISSUE OTHER THAN AS DESCRIBED
IN SUBPARAGRAPH (1) OF THIS PARAGRAPH WHICH ARISES AT A LOCAL LEVEL MAY
BE REFERRED BY EITHER PARTY TO THE HEAD OF THE AGENCY FOR DETERMINATION;
(3) AN AGENCY HEAD'S DETERMINATION TO THE INTERPRETATION OF THE
AGENCY'S REGULATIONS WITH RESPECT TO A PROPOSAL IS FINAL; (4) A LABOR
ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION WHEN -- (I) IT
DISAGREES WITH AN AGENCY HEAD'S DETERMINATION THAT A PROPOSAL WOULD
VIOLATE APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER, OR (II) IT BELIEVES THAT AN AGENCY'S REGULATIONS,
AS INTERPRETED BY THE AGENCY HEAD, VIOLATE APPLICABLE LAW, REGULATION OF
APPROPRIATE AUTHORITY OUTSIDE THE AGENCY, OR THIS ORDER."
/8/ SEE ARMY AND AIR FORCE EXCHANGE SERVICE, KEESLER CONSOLIDATED
EXCHANGE, A/SLMR NO. 144. SEE ALSO REPORT ON A DECISION OF THE
ASSISTANT SECRETARY, REPORT NO. 26.
2 A/SLMR 210; P. 506; CASE NO. 52-2743(25); SEPTEMBER 29, 1972
UNITED STATES CUSTOMS SERVICE,
REGION IX, CHICAGO, ILLINOIS
A/SLMR NO. 210
THIS CASE AROSE AS A RESULT OF A REPRESENTATION PETITION FILED BY THE
NATIONAL CUSTOMS SERVICE ASSOCIATION (NCSA) SEEKING AN ELECTION AMONG
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE REGIONWIDE UNIT.
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE)
INTERVENED. THE ASSISTANT SECRETARY FOUND THAT THE REGIONWIDE UNIT WAS
APPROPRIATE, IN THAT THERE WAS A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST AMONG ALL OF THE EMPLOYEES IN THE REGION, AND THAT SUCH A UNIT
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE ASSISTANT SECRETARY FURTHER FOUND THAT EMPLOYEES CLASSIFIED AS
IMPORT SPECIALIST TEAM LEADER, PUBLIC INFORMATION OFFICER, EDITORIAL
ASSISTANT, ADMINISTRATIVE OFFICER, MISCELLANEOUS DOCUMENT EXAMINER, AS
WELL AS "TEMPORARY" (INTERMITTENT) EMPLOYEES AND PORT DIRECTORS AT
"ONE-MAN" PORTS, SHOULD BE INCLUDED IN THE UNIT. WITH RESPECT TO THE
PORT DIRECTORS AT "ONE-MAN" PORTS, HE NOTED THAT THEY WERE NOT
MANAGEMENT OFFICIALS BECAUSE THEY LACKED AUTHORITY TO MAKE, OR TO
INFLUENCE EFFECTIVELY THE MAKING OF, POLICY NECESSARY TO THE AGENCY OR
ACTIVITY WITH RESPECT TO PERSONNEL, PROCEDURES OR PROGRAMS AND BECAUSE
THEY WERE ENGAGED PRIMARILY IN WORK FUNCTIONS SIMILAR TO CUSTOMS
INSPECTORS, WHO WERE PART OF THE UNIT FOUND APPROPRIATE.
THE ASSISTANT SECRETARY EXCLUDED EMPLOYEES CLASSIFIED AS SECRETARY TO
THE DISTRICT DIRECTOR ON THE BASIS THAT THEY WERE CONFIDENTIAL
EMPLOYEES. HE FOUND ALSO THAT EMPLOYEES CLASSIFIED AS OPERATIONS
OFFICER WERE MANAGEMENT OFFICIALS AND THOSE CLASSIFIED AS SUPERVISORY
CUSTOMS INSPECTOR, IMPORT CONTROL OFFICER AND SUPERVISORY CUSTOMS AID
WERE SUPERVISORS WITHIN THE MEANING OF THE ORDER.
WITH RESPECT TO THE PARTIES' FAILURE TO SUBMIT CERTAIN REQUESTED
INFORMATION TO THE HEARING OFFICER, THE ASSISTANT SECRETARY NOTED THAT
PARTIES ARE EXPECTED TO COOPERATE FULLY WITH THE HEARING OFFICER'S
EFFORTS TO DEVELOP A FULL AND COMPLETE RECORD REGARDING THE ISSUES
PRESENTED AT THE HEARING. HE INDICATED THAT IN THE FUTURE A LACK OF
COOPERATION BY THE PARTIES MAY REQUIRE THAT A CASE BE REMANDED TO ADDUCE
FURTHER EVIDENCE OR BE DISMISSED.
UNITED STATES CUSTOMS SERVICE,
REGION IX, CHICAGO, ILLINOIS
AND
NATIONAL CUSTOMS SERVICE ASSOCIATION
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
UPON A PETITION FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
HEARING WAS HELD BEFORE HEARING OFFICER KENNETH MILLS. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED. /1/
UPON THE ENTIRE RECORD IN THIS CASE, /2/ INCLUDING BRIEFS FILED BY
ALL THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE NCSA SEEKS AN ELECTION IN A UNIT OF ALL PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES IN U.S. CUSTOMS SERVICE, REGION IX, EXCLUDING
MANAGERIAL EMPLOYEES, EMPLOYEES ENGAGED IN PERSONNEL WORK OTHER THAN IN
A PURELY CLERICAL CAPACITY, AND SUPERVISORS AND GUARDS AS DEFINED BY THE
ORDER. /3/ THE ACTIVITY AND THE INTERVENOR, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, AGREE WITH THE NCSA
THAT THE UNIT SOUGHT IS APPROPRIATE.
THE BUREAU OF CUSTOMS, A BUREAU OF THE UNITED STATES TREASURY
DEPARTMENT, CONSISTS OF A NATIONAL OFFICE IN WASHINGTON, D.C. AND NINE
REGIONAL OFFICES THROUGHOUT THE COUNTRY. IT HAS THE MISSION OF
COLLECTING AND PROTECTING REVENUE AND ENFORCING UNITED STATES CUSTOMS
AND RELATED LAWS. REGION IX, ENCOMPASSING A 14 STATE AREA, IS DIVIDED
INTO EIGHT DISTRICTS WHICH REPORT TO THE REGIONAL COMMISSIONER'S OFFICE.
THE REGIONAL COMMISSIONER AND HIS HEADQUARTERS STAFF, INCLUDING TWO
ASSISTANT REGIONAL COMMISSIONERS, ONE FOR OPERATIONS AND ONE FOR
ADMINISTRATION, ARE LOCATED IN CHICAGO, ILLINOIS.
EACH DISTRICT IS UNDER THE OVERALL SUPERVISION OF A DISTRICT DIRECTOR
AND IS DIVIDED INTO AN INSPECTION AND CONTROL DIVISION AND A
CLASSIFICATION AND VALUE DIVISION. WITHIN EACH DISTRICT ARE SEVERAL
PORTS WHICH ARE UNDER IMMEDIATE SUPERVISION OF PORT DIRECTORS. THE
STAFF AT EACH PORT VARIES IN SIZE FROM A SINGLE PORT DIRECTOR TO OVER 50
EMPLOYEES.
THE RECORD REVEALS THAT ALL DISTRICTS IN REGION IX PERFORM THE SAME
OPERATIONAL FUNCTIONS INCLUDING, AMONG OTHER THINGS, INSPECTION,
CONTROL, CLASSIFICATION, VALUATION AND COLLECTION IN CARRYING OUT THE
REGION'S MISSION. IN CARRYING OUT THESE FUNCTIONS, THE SAME SUBSTANTIVE
DUTIES AND RESPONSIBILITIES ARE PERFORMED BY EMPLOYEES IN THE SAME
OCCUPATIONAL CATEGORIES THROUGHOUT THE REGION. THUS, THE EMPLOYEES
UTILIZE THE SAME WORK METHODS, THE SAME SKILLS, AND ENFORCE THE SAME
REGULATIONS AND LAWS.
THE REGIONAL PERSONNEL OFFICER, LOCATED IN THE REGIONAL OFFICE, IS
THE INDIVIDUAL CHARGED WITH THE DUTY AND RESPONSIBILITY FOR ALL DEALINGS
AND NEGOTIATIONS WITH EMPLOYEE ORGANIZATIONS IN THE REGION. IN THIS
CONNECTION, THE EVIDENCE REVEALS THAT THE REGION'S ESTABLISHED PERSONNEL
POLICIES, PRACTICES, RULES AND PROCEDURES APPLY EQUALLY TO ALL REGIONAL
EMPLOYEES; THAT THE PERSONNEL FUNCTIONS AND RECORDS ARE CENTRALIZED IN
THE REGIONAL HEADQUARTERS; THAT THE AREA FOR CONSIDERATION FOR THE
FILLING OF REGIONAL JOB VACANCIES IS REGIONWIDE; THAT THERE HAVE BEEN A
SUBSTANTIAL NUMBER OF TRANSFERS BETWEEN THE DISTRICT OFFICES AND
REGIONAL HEADQUARTERS; THAT THERE IS CONTACT AND COMMUNICATION BETWEEN
EMPLOYEES ACROSS DIVISIONAL AND ORGANIZATIONAL LINES WITHIN AND BETWEEN
THE DISTRICTS ON MATTERS OF OPERATIONAL CONCERN TO EMPLOYEES OF THE
REGION; THAT ALL DISCIPLINE BEYOND AN ORAL WARNING IS ADMINISTERED BY
THE REGIONAL COMMISSIONER; AND THAT UNIFORM CAREER AND PERSONNEL
TRAINING PROGRAMS ARE PREPARED AND, IN SOME INSTANCES, CONDUCTED BY
REGIONAL HEADQUARTERS PERSONNEL FOR ALL EMPLOYEES OF THE REGION.
IN THE ABOVE CIRCUMSTANCES, I FIND THAT THERE IS A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST AMONG ALL OF THE NONSUPERVISORY
EMPLOYEES OF REGION IX AND THAT SUCH A COMPREHENSIVE UNIT WOULD PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ELIGIBILITY ISSUES /4/
THE RECORD DISCLOSES THAT THERE ARE ISSUES OF ELIGIBILITY WITH
RESPECT TO THE FOLLOWING EMPLOYEE CLASSIFICATIONS:
PORT DIRECTORS AT "ONE-MAN" PORTS
AT EACH OF THE PORTS WITHIN REGION IX THERE ARE PORT DIRECTORS WHO
ARE RESPONSIBLE FOR THE FULL RANGE OF CUSTOMS ACTIVITIES AT THEIR
RESPECTIVE PORTS. THE PARTIES ARE IN AGREEMENT THAT THE PORT DIRECTORS
WHO WORK ALONE AT THEIR STATIONS SHOULD BE EXCLUDED FROM THE UNIT AS
MANAGERIAL EMPLOYEES IN THAT THEIR DUTIES AND INTERESTS ARE MORE CLOSELY
ALIGNED WITH THOSE WHO FORMULATE POLICY THAN WITH THOSE WHO CARRY OUT
THE RESULTANT POLICY.
THE RECORD DISCLOSES THAT THERE ARE 23 "ONE-MAN" PORT DIRECTORS IN
REGION IX WHO WORK ALONG WITH AN OFFICIAL OF THE IMMIGRATION SERVICE.
THE ADMINISTRATIVE DUTIES AT THESE PORT OFFICES HAVE BEEN DIVIDED SO
THAT APPROXIMATELY ONE-HALF OF THE FACILITIES ARE ADMINISTERED BY
"ONE-MAN" PORT DIRECTORS AND THE OTHER HALF BY IMMIGRATION OFFICIALS.
THESE PORT DIRECTORS PERFORM THE SAME INSPECTION AND EXAMINATION
FUNCTIONS THAT CUSTOMS INSPECTORS PERFORM AT THE LARGER PORTS, WHICH
INCLUDE INSPECTION OF CARGO, CARRIERS AND PASSENGERS ARRIVING OR
DEPARTING BY SEVERAL MODES OF TRANSPORTATION. IN ADDITION, THEIR DUTIES
INCLUDE ENFORCEMENT OF CUSTOMS AND OTHER RELATED LAWS, AS WELL AS THE
DETENTION AND ARREST, IF NECESSARY, OF PERSONS INVOLVED IN VIOLATION OF
SUCH LAWS. THESE PORT DIRECTORS ALSO PREPARE DAILY AND OTHER PERIODIC
REPORTS CONCERNING THE ADMINISTRATION OF THE CUSTOMS ACTIVITIES AT THEIR
RESPECTIVE PORTS. FURTHER, THE RECORD REVEALS THAT THE PORT DIRECTORS
AT "ONE-MAN" PORTS ATTEND MEETINGS CALLED BY THE DISTRICT DIRECTOR AT
WHICH TIME MANAGEMENT POLICIES FOR THE PORTS ARE DISCUSSED.
UNDER THE FOREGOING CIRCUMSTANCES, AND NOTING THE ABSENCE OF ANY
EVIDENCE THAT "ONE-MAN" PORT DIRECTORS HAVE THE AUTHORITY TO MAKE, OR TO
INFLUENCE EFFECTIVELY THE MAKING OF, POLICY NECESSARY TO THE AGENCY OR
ACTIVITY WITH RESPECT TO PERSONNEL, PROCEDURES OR PROGRAMS /5/ AND THE
FACT THAT THESE EMPLOYEES PRIMARILY ARE ENGAGED IN WORK FUNCTIONS
SIMILAR TO THOSE OF INSPECTORS AT LARGER PORTS, I FIND THAT PORT
DIRECTORS AT "ONE-MAN" PORTS ARE NOT MANAGEMENT OFFICIALS WITHIN THE
MEANING OF THE ORDER. ACCORDINGLY, I SHALL INCLUDE THEM IN THE UNIT
FOUND APPROPRIATE.
OPERATIONS OFFICERS
THE PARTIES STIPULATED THAT THE OPERATIONS OFFICERS, WHO ARE EMPLOYED
IN THE CLASSIFICATION AND VALUE DIVISION AND THE INSPECTION AND CONTROL
DIVISION OF THE REGIONAL OFFICE'S OPERATIONS SECTION, ARE MANAGEMENT
OFFICIALS WITHIN THE MEANING OF THE ORDER.
THE RECORD REVEALS THAT THE OPERATIONS OFFICERS, ACTING AS
REPRESENTATIVES OF THE REGIONAL COMMISSIONER, CONSIDER MATTERS RELATING
TO PERSONNEL PRACTICES AND POLICIES, AS WELL AS GENERAL WORKING
CONDITIONS, DURING THEIR VISITS TO THE VARIOUS FIELD LOCATIONS WITHIN
THE REGION. THEY ALSO ADVISE THE REGIONAL COMMISSIONER CONCERNING
MANAGEMENT POLICIES, PROGRAMS AND OPERATING PROCEDURE CHANGES. FURTHER,
THEY HAVE THE AUTHORITY TO INAUGURATE, AFTER CONSULTATION WITH THE
DISTRICT DIRECTOR, AND WITHOUT PRIOR REFERENCE TO THE REGIONAL OFFICE,
PROCEDURES AND ORGANIZATIONAL MATTERS AND TO REQUIRE THAT SUCH MATTERS
BECOME EFFECTIVE.
ON THE BASIS OF THE ABOVE, I FIND THAT THE OPERATIONS OFFICERS ARE
MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE ORDER IN THAT THEY
INFLUENCE EFFECTIVELY THE MAKING OF POLICY NECESSARY TO THE REGION WITH
RESPECT TO PERSONNEL, PROCEDURES, OR PROGRAMS. ACCORDINGLY, I WILL
EXCLUDE SUCH EMPLOYEES FROM THE UNIT FOUND APPROPRIATE.
SECRETARIES TO THE DISTRICT DIRECTORS
THE RECORD REVEALS THAT THE SECRETARIES TO THE VARIOUS DISTRICT
DIRECTORS HAVE REGULAR ACCESS TO CONFIDENTIAL INFORMATION RELATING TO
LABOR-MANAGEMENT MATTERS, TO OFFICE AND PERSONNEL FILES NOT AVAILABLE TO
OTHER EMPLOYEES IN THE UNIT, AND TO PERSONNEL APPRAISALS. ALSO, THEY
PREPARE OR ASSIST IN THE PREPARATION OF MEMORANDA AND DOCUMENTS IN
CONNECTION WITH DISCIPLINARY PROCEEDINGS OR PROPOSED ADVERSE ACTIONS.
UNDER THESE CIRCUMSTANCES, I FIND THAT THESE EMPLOYEES SHOULD BE
EXCLUDED FROM THE UNIT FOUND APPROPRIATE AS CONFIDENTIAL EMPLOYEES. /6/
SUPERVISORY CUSTOMS INSPECTORS; IMPORT CONTROL OFFICERS;
SUPERVISORY CUSTOMS AIDS
THE PARTIES TAKE THE POSITION THAT THE EMPLOYEES IN THE JOB
CLASSIFICATIONS OF SUPERVISORY CUSTOMS INSPECTOR, IMPORT CONTROL OFFICER
AND SUPERVISORY CUSTOMS AID ARE SUPERVISORS WITHIN THE MEANING OF THE
ORDER.
WITH RESPECT TO THE 36 EMPLOYEES CURRENTLY EMPLOYED AS SUPERVISORY
CUSTOMS INSPECTORS AT VARIOUS PORT LOCATIONS THROUGHOUT THE REGION, THE
RECORD REVEALS THAT THEY PLAN, ASSIGN AND COORDINATE THE WORK OF FROM 3
TO 12 CUSTOMS INSPECTORS. IN CONNECTION WITH WORK ASSIGNMENTS, THEY
MAKE MINOR CHANGES IN WORK FLOW, METHODS, PROCEDURES AND STAFFING; MAKE
WORK-LOAD ADJUSTMENTS; RESOLVE PROBLEMS BETWEEN EMPLOYEES, THE PUBLIC
AND CARRIERS; RESOLVE GRIEVANCES OF EMPLOYEES; DIRECT AND ASSIGN WORK,
INCLUDING CHANGING SCHEDULES, APPROVING LEAVE AND ASSIGNING OVERTIME;
PREPARE PERFORMANCE EVALUATIONS, AND MAKE EVALUATIONS FOR PROMOTIONS.
WHILE THEIR JOB DESCRIPTION INDICATES THAT THEY PERFORM JOURNEYMAN TASKS
WHEN NOT ENGAGED IN SUPERVISORY FUNCTIONS, THE RECORD REVEALS THAT THE
SUPERVISORY CUSTOMS INSPECTORS SPEND ALMOST ALL OF THEIR TIME ENGAGED IN
SUPERVISORY AND ADMINISTRATIVE DUTIES.
THE TWO LARGEST DISTRICT OFFICES IN DETROIT AND CHICAGO HAVE AN
IMPORT CONTROL OFFICER IN CHARGE OF THE MINISTERIAL SECTION OF THE
CLASSIFICATION AND VALUE DIVISION OFFICE WHICH HAS A STAFF OF ABOUT 20
EMPLOYEES. THE RECORD REVEALS THAT THE IMPORT CONTROL OFFICER IS
RESPONSIBLE FOR THE DAY-TO-DAY OPERATIONS OF THE SECTION; INITIATES
PERFORMANCE EVALUATIONS OF OTHER SUPERVISORY EMPLOYEES IN HIS SECTION;
REVIEWS THE EVALUATION OF THE OTHER EMPLOYEES; DISCIPLINES EMPLOYEES
AND DIRECTS WORK AND CONTROLS WORK ASSIGNMENTS. THE RECORD REVEALS ALSO
THAT THE IMPORT CONTROL OFFICER DOES NOT PERFORM THE TECHNICAL WORK
ENGAGED IN BY THE OTHER MEMBERS OF THE MINISTERIAL SECTION.
WITHIN THE MINISTERIAL SECTIONS OF THE DETROIT AND CHICAGO DISTRICT
OFFICES THERE ARE EMPLOYEES CLASSIFIED AS SUPERVISORY CUSTOMS AIDS WHO
PLAN AND REVIEW THE WORK OF CUSTOMS AIDS. IN PERFORMING THEIR DUTIES,
THE SUPERVISORY CUSTOMS AIDS ARE INVOLVED IN MAKING WORK ASSIGNMENTS,
REVIEWING AND EVALUATING THE WORK PERFORMANCE OF SUBORDINATES, RESOLVING
INFORMAL COMPLAINTS AND MAKING RECOMMENDATIONS ON SERIOUS GRIEVANCES TO
THE IMPORT CONTROL OFFICER, EFFECTUATING WARNINGS AND REPRIMANDS AND
RECOMMENDING ACTION IN MORE SERIOUS CASES. SUPERVISORY CUSTOMS AIDS
ALSO HAVE THE AUTHORITY TO GRANT ANNUAL AND SICK LEAVE.
BASED ON THE FOREGOING EVIDENCE, I FIND THAT THE EMPLOYEES CLASSIFIED
AS SUPERVISORY CUSTOMS INSPECTORS, IMPORT CONTROL OFFICERS AND
SUPERVISORY CUSTOMS AIDS ARE SUPERVISORS AS DEFINED BY SECTION 2(C) OF
THE ORDER AND SHOULD BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
IMPORT SPECIALIST TEAM LEADERS; ADMINISTRATIVE OFFICERS; PUBLIC
INFORMATION OFFICER; EDITORIAL ASSISTANT; MISCELLANEOUS DOCUMENT
EXAMINERS
THE PARTIES CONTEND THAT EMPLOYEES IN THE JOB CLASSIFICATIONS IMPORT
SPECIALIST TEAM LEADER, ADMINISTRATIVE OFFICER, PUBLIC INFORMATION
OFFICER, EDITORIAL ASSISTANT AND MISCELLANEOUS DOCUMENT EXAMINER ARE NOT
SUPERVISORS AND THEY STIPULATED THAT THE JOB DESCRIPTIONS IN EACH
CATEGORY CONSTITUTED AN ACCURATE DESCRIPTION OF THEIR FUNCTIONS.
ADDITIONALLY, WITH RESPECT TO THE CLASSIFICATION IMPORT SPECIALIST TEAM
LEADER, THE PARTIES STIPULATED THAT THEY PERFORM ESSENTIALLY THE SAME
DUTIES AS PERFORMED BY THE SAME CLASSIFICATION OF EMPLOYEES IN REGION IV
OF THE CUSTOMS SERVICE WHO WERE FOUND BY THE ASSISTANT SECRETARY NOT TO
BE SUPERVISORS. /7/ IN VIEW OF THE PARTIES' STIPULATION AND NOTING THE
FINDING AS TO ELIGIBILITY IN TREASURY DEPARTMENT, BUREAU OF CUSTOMS,
REGION IV, CITED ABOVE, I FIND NO BASIS TO EXCLUDE THE EMPLOYEES IN THE
CLASSIFICATIONS IMPORT SPECIALIST TEAM LEADER, ADMINISTRATIVE OFFICER,
PUBLIC INFORMATION OFFICER, EDITORIAL ASSISTANT AND MISCELLANEOUS
DOCUMENT EXAMINER FROM THE UNIT FOUND APPROPRIATE.
"TEMPORARY" (INTERMITTENT) EMPLOYEES /8/
THE PARTIES CONTEND THAT EMPLOYEES CLASSIFIED AS "TEMPORARY," (BOTH
REGULAR PART-TIME AND WHEN-ACTUALLY-EMPLOYED EMPLOYEES (WAE)), OF WHOM
THERE ARE APPROXIMATELY 88 PRESENTLY EMPLOYED IN REGION IX, SHOULD BE
INCLUDED IN THE UNIT. IN SUPPORT OF THEIR POSITION, THE PARTIES
STIPULATED THAT THE "TEMPORARY" EMPLOYEES PERFORM THEIR DUTIES GENERALLY
IN COOPERATION AND SIDE-BY-SIDE WITH THE REGULAR FULL-TIME EMPLOYEES.
ADDITIONALLY, IT WAS STIPULATED THAT THE EMPLOYMENT RELATIONSHIP OF THE
"TEMPORARY" EMPLOYEES IS SUBSTANTIALLY SIMILAR TO THE INTERMITTENT
EMPLOYEES DESCRIBED IN TREASURY DEPARTMENT, BUREAU OF CUSTOMS, REGION
IV, CITED ABOVE. /9/ THE RECORD REVEALS THAT THE THREE WAE PORT
DIRECTORS AT "ONE-MAN" PORTS ARE NOT SEASONAL EMPLOYEES BUT, RATHER,
WORK ON A CONTINUAL BASIS FROM YEAR-TO-YEAR WITH NO ASSIGNED DUTY HOURS
ON ANY GIVEN DAY. UNDER THE FOREGOING CIRCUMSTANCES, AND NOTING THAT
"TEMPORARY" EMPLOYEES HAVE A REASONABLE EXPECTANCY OF CONTINUED
EMPLOYMENT, I FIND THAT THEY SHOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE.
OTHER CATEGORIES OF EMPLOYEES
DURING THE COURSE OF THE HEARING, THE HEARING OFFICER REQUESTED FROM
THE PARTIES INFORMATION CONCERNING ALL CLASSIFICATIONS OF EMPLOYEES THE
PARTIES WOULD EXCLUDE FROM THE CLAIMED UNIT. THE ACTIVITY REFUSED TO
SUPPLY SUCH INFORMATION, CONTENDING THAT IT HAD BEEN ADVISED THAT THE
HEARING WOULD BE CONCERNED ONLY WITH CATEGORIES OF EMPLOYEES WHICH WERE
IN DISPUTE PRIOR TO THE HEARING. /10/ NEAR THE END OF THE HEARING AND
IN ITS BRIEF THE ACTIVITY ASSERTED THAT THE PURPORTED LAST MINUTE
REQUEST OF THE HEARING OFFICER FOR EVIDENCE CONCERNING ADDITIONAL
EXCLUSIONS, IF COMPLIED WITH, WOULD HAVE RESULTED IN AN INADEQUATE AND
INCOMPLETE RECORD AS THE ACTIVITY HAD NO WITNESSES AVAILABLE TO SUPPLY
SUCH INFORMATION. THE ACTIVITY ALSO IGNORED A REQUEST BY THE HEARING
OFFICER THAT JOB DESCRIPTIONS FOR ALL EXCLUSIONS BE SENT TO THE AREA
OFFICE WITHIN THREE DAYS FROM THE CLOSING OF THE HEARING SO THEY COULD
BE INCLUDED IN THE RECORD. THE NCSA AND THE AFGE, BOTH DURING THE
HEARING AND IN THEIR BRIEFS, SUPPORTED THE ACTIVITY'S POSITION.
SECTION 6(A)(1) OF THE ORDER GRANTS TO THE ASSISTANT SECRETARY THE
AUTHORITY TO DECIDE QUESTIONS AS TO THE APPROPRIATE UNIT FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WHICH NECESSARILY INCLUDE QUESTIONS RELATED TO
UNIT INCLUSIONS AND EXCLUSIONS. IN THE PROCESSING OF REPRESENTATION
PETITIONS UNDER THE EXECUTIVE ORDER, HEARING OFFICERS ACT AS AGENTS OF
THE ASSISTANT SECRETARY FOR THE PURPOSE OF DEVELOPING A COMPLETE RECORD
SO THAT DECISIONS MAY BE RENDERED ON THE BASIS OF ALL THE RELEVANT
FACTS. WHILE IN THE INSTANT CASE, I FIND THAT THE EVIDENCE IS
SUFFICIENT TO REACH A DECISION REGARDING THE APPROPRIATENESS OF THE UNIT
SOUGHT AS WELL AS SEVERAL INCLUSIONS AND EXCLUSIONS, I ALSO FIND THAT
THE PARTIES HEREIN IMPROPERLY REFUSED TO COOPERATE WITH THE HEARING
OFFICER'S EFFORTS TO PERFORM HIS FUNCTION OF DEVELOPING A FULL AND
COMPLETE RECORD. IN THIS CONNECTION, I FIND THAT THE ACTIVITY'S
IGNORING THE HEARING OFFICER'S REQUEST FOR JOB DESCRIPTIONS TO BE
INDEFENSIBLE. IN THE FUTURE, THE TYPE OF CONDUCT DEMONSTRATED BY THE
PARTIES IN THE SUBJECT CASE MAY REQUIRE THAT A CASE BE REMANDED TO
ADDUCE FURTHER EVIDENCE OR BE DISMISSED. TO PREVENT A RECURRENCE OF THE
AFOREMENTIONED IMPROPER CONDUCT AND THE POSSIBLE RESULTS THEREOF,
NATIONAL OFFICE OFFICIALS OF THE AGENCY AND THE LABOR ORGANIZATIONS
INVOLVED HEREIN SHOULD TAKE SUCH STEPS AS ARE NECESSARY TO ASSURE THAT
SUCH IMPROPER CONDUCT BY THEIR REPRESENTATIVES WILL NOT BE REPEATED IN
FUTURE PROCEEDINGS BEFORE THE ASSISTANT SECRETARY.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT THE
FOLLOWING EMPLOYEES MAY CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE
ORDER 11491:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF U.S. CUSTOMS
SERVICE, REGION IX,
INCLUDING EMPLOYEES CLASSIFIED AS IMPORT SPECIALIST TEAM LEADER,
PUBLIC INFORMATION OFFICER,
EDITORIAL ASSISTANT, ADMINISTRATIVE OFFICER, MISCELLANEOUS DOCUMENT
EXAMINER, AND PORT
DIRECTORS AT "ONE-MAN" PORTS AND "TEMPORARY" EMPLOYEES, EXCLUDING
EMPLOYEES CLASSIFIED AS
SECRETARY TO THE DISTRICT DIRECTOR, OPERATIONS OFFICER, SUPERVISORY
CUSTOMS INSPECTOR, IMPORT
CONTROL OFFICER AND SUPERVISORY CUSTOMS AID, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
AS NOTED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. /11/ THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION
10(B)(4) OF THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT
WITH EMPLOYEES WHO ARE NOT PROFESSIONAL UNLESS THE MAJORITY OF THE
PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY,
THE DESIRE OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I, THEREFORE, SHALL
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE U.S. CUSTOMS
SERVICE, REGION IX,
EXCLUDING NONPROFESSIONAL EMPLOYEES, EMPLOYEES CLASSIFIED AS
SECRETARY TO THE DISTRICT
DIRECTOR, OPERATIONS OFFICER, SUPERVISORY CUSTOMS INSPECTOR, IMPORT
CONTROL OFFICER,
SUPERVISORY CUSTOMS AID, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE
ORDER. VOTING GROUP (N): ALL NONPROFESSIONAL EMPLOYEES OF THE U.S.
CUSTOMS SERVICE, REGION
IX, EXCLUDING PROFESSIONAL EMPLOYEES, EMPLOYEES CLASSIFIED AS
SECRETARY TO THE DISTRICT
DIRECTOR, OPERATIONS OFFICER, SUPERVISORY CUSTOMS INSPECTOR, IMPORT
CONTROL OFFICER, AND
SUPERVISORY CUSTOMS AID, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER THEY DESIRE TO BE REPRESENTED BY THE NCSA, THE AFGE OR BY
NEITHER.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER THEY WISH TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY THE NCSA, THE AFGE OR BY NEITHER. IN THE
EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST IN
FAVOR OF INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THE
BALLOTS OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING GROUP
(B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST FOR
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED BY THE APPROPRIATE AREA
ADMINISTRATOR INDICATING WHETHER THE NCSA, THE AFGE OR NEITHER WAS
SELECTED BY THE PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED IN PART, THEN,
UPON RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES. HOWEVER,
I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE APPROPRIATE
UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE U.S. CUSTOMS
SERVICE, REGION IX,
INCLUDING EMPLOYEES CLASSIFIED AS IMPORT SPECIALIST TEAM LEADER,
PUBLIC INFORMATION OFFICER,
EDITORIAL ASSISTANT, ADMINISTRATIVE OFFICER, MISCELLANEOUS DOCUMENT
EXAMINER, AND PORT
DIRECTORS AT "ONE-MAN" PORTS AND "TEMPORARY" EMPLOYEES, EXCLUDING
EMPLOYEES CLASSIFIED AS
SECRETARY TO THE DISTRICT DIRECTOR, OPERATIONS OFFICER, SUPERVISORY
CUSTOMS INSPECTOR, IMPORT
CONTROL OFFICER AND SUPERVISORY CUSTOMS AID, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL PROFESSIONAL EMPLOYEES OF THE U.S. CUSTOMS SERVICE, REGION
IX, EXCLUDING
NONPROFESSIONAL EMPLOYEES, EMPLOYEES CLASSIFIED AS SECRETARY TO THE
DISTRICT DIRECTOR,
OPERATIONS OFFICER, SUPERVISORY CUSTOMS INSPECTOR, IMPORT CONTROL
OFFICER, SUPERVISORY CUSTOMS
AID, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
(B) ALL NONPROFESSIONAL EMPLOYEES OF THE U.S. CUSTOMS SERVICE, REGION
IX, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES CLASSIFIED AS SECRETARY TO THE
DISTRICT DIRECTOR, OPERATIONS
OFFICER, SUPERVISORY CUSTOMS INSPECTOR, IMPORT CONTROL OFFICER,
SUPERVISORY CUSTOMS AID,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL OR ON
VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL CUSTOMS SERVICE
ASSOCIATION; BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO; OR BY NEITHER.
DATED, WASHINGTON, D.C.
SEPTEMBER 29, 1972
/1/ THE PARTIES WERE IN AGREEMENT AS TO THE APPROPRIATENESS OF THE
CLAIMED UNIT IN THE SUBJECT CASE AS WELL AS TO THE CATEGORIES OF
EMPLOYEES TO BE INCLUDED IN SUCH UNIT. ACCORDINGLY, SEVERAL TIMES
DURING THE COURSE OF THE HEARING THEY MOVED THAT THE HEARING BE CLOSED.
THE HEARING OFFICER DENIED THEIR MOTIONS. FOR THE REASONS ENUNCIATED IN
ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE,
WHITE SANDS MISSILE RANGE, NEW MEXICO, A/SLMR NO. 25, I REJECT THE
CONTENTION THAT I SHOULD CONSIDER MYSELF BOUND EITHER BY THE PARTIES'
AGREEMENT AS TO THE APPROPRIATENESS OF THE UNIT SOUGHT OR THE UNIT
INCLUSIONS OR EXCLUSIONS. ACCORDINGLY, THE HEARING OFFICER'S RULINGS IN
THIS REGARD ARE HEREBY AFFIRMED.
ALSO, NEAR THE CLOSE OF THE HEARING, THE HEARING OFFICER DENIED A
JOINT MOTION BY THE PARTIES THAT THE HEARING OFFICER PERMIT THE PARTIES
TO PROCEED TO A CONSENT ELECTION ON THE BASIS OF THE STIPULATIONS MADE
DURING THE COURSE OF THE HEARING. FURTHER, AFTER THE CLOSE OF THE
HEARING THE NATIONAL CUSTOMS SERVICE ASSOCIATION, HEREIN CALLED NCSA,
FILED A MOTION TO DIRECT CONSENT ELECTION OR ALTERNATIVELY TO EXPEDITE
CONSIDERATION OF PETITION FILED UNDER SECTION 6 OF EXECUTIVE ORDER
11491. IN VIEW OF MY FINDINGS HEREIN, I FIND IT UNNECESSARY TO PASS
UPON THE HEARING OFFICER'S RULING DENYING THE PARTIES' JOINT MOTION OR
THE NCSA'S POST-HEARING MOTION.
/2/ THE HEARING OFFICER ERRONEOUSLY ADVISED THE PARTIES THAT THE AREA
OFFICE FILE WOULD BE FORWARDED TO THE ASSISTANT SECRETARY AS PART OF THE
RECORD IN THIS CASE. THE RECORD OF THE PROCEEDING AS DESCRIBED IN
SECTION 202.15 OF THE ASSISTANT SECRETARY'S REGULATIONS DOES NOT INCLUDE
THE AREA OFFICE FILE. ACCORDINGLY, SUCH FILE WAS NOT FORWARDED TO THE
ASSISTANT SECRETARY IN CONNECTION WITH THE CONSIDERATION OF THE SUBJECT
CASE.
/3/ THE UNIT SOUGHT WAS AMENDED AT THE HEARING TO INCLUDE
PROFESSIONAL EMPLOYEES.
/4/ AT THE OPENING OF THE HEARING, THE HEARING OFFICER REJECTED A
JOINT EXHIBIT OF ALL THE PARTIES PURPORTING TO STIPULATE THE FACTS ON
SEVERAL CATEGORIES OF EMPLOYEES WHICH HAD BEEN IN DISPUTE PRIOR TO THE
OPENING OF THE HEARING. I FIND THAT THE HEARING OFFICER PROPERLY
REJECTED THE PARTIES' EXHIBIT AS SEVERAL OF THE STIPULATIONS CONSISTED
ONLY OF CONCLUSIONARY LANGUAGE UNSUPPORTED BY FACTS.
THEREAFTER, THE PARTIES MADE SEPARATE STIPULATIONS OF FACT WHICH I
FIND THAT THE HEARING OFFICER CORRECTLY REJECTED WHEN SUCH STIPULATIONS
CONSISTED ONLY OF THE CONCLUSIONARY LANGUAGE. HOWEVER, ON AT LEAST ONE
OCCASION, THE HEARING OFFICER REJECTED A PORTION OF A STIPULATION
CONCLUDING THAT T CATEGORY OF EMPLOYEES WAS EXCLUDABLE WHILE ACCEPTING
THE FACTUAL SUPPORT FOR THE CONCLUSION. I FIND THAT THE HEARING OFFICER
ERRED IN THIS REGARD AS STIPULATIONS SHOULD BE ACCEPTED WHERE THE
ULTIMATE CONCLUSION IS SUPPORTED BY FACTS. ACCORDINGLY, THE HEARING
OFFICER'S RULING IN THIS LATTER REGARD IS IS REVERSED AND IN REACHING
THE DISPOSITION IN THIS MATTER I SHALL CONSIDER THE ENTIRE STIPULATION,
INCLUDING THE CONCLUSIONARY LANGUAGE.
/5/ CF. DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
A/SLMR NO. 135.
/6/ SEE TREASURY DEPARTMENT, BUREAU OF CUSTOMS, REGION IV, A/SLMR NO.
152.
/7/ SEE TREASURY DEPARTMENT, BUREAU OF CUSTOMS, REGION IV, CITED
ABOVE.
/8/ IT APPEARS THAT THE EMPLOYEES CALLED "TEMPORARY" EMPLOYEES IN THE
INSTANT CASE ARE THE SAME AS THE EMPLOYEES DESIGNATED AS "INTERMITTENT"
EMPLOYEES IN TREASURY DEPARTMENT, BUREAU OF CUSTOMS, REGION IV, CITED
ABOVE.
/9/ IN A/SLMR NO. 152 INTERMITTENT EMPLOYEES WERE INCLUDED IN THE
UNIT FOUND APPROPRIATE BECAUSE THEY HAD A REASONABLE EXPECTANCY OF
CONTINUED EMPLOYMENT FROM YEAR-TO-YEAR AND SHARED WITH REGULAR FULL-TIME
EMPLOYEES COMMON SUPERVISION, PAY SCALE, JOB ASSIGNMENTS, WORKING
CONDITIONS, AND UNIFORM LABOR RELATIONS POLICIES.
/10/ CONTRARY TO THIS CONTENTION OF THE ACTIVITY, THE RECORD AND THE
ACTIVITY'S BRIEF REFLECT THAT THE PARTIES WERE AWARE, WELL BEFORE THE
HEARING, THAT THEY MIGHT BE CALLED UPON TO FURNISH SUCH INFORMATION.
THUS, IN A LETTER OF MARCH 13, 1972, THE AREA ADMINISTRATOR, IN ANSWER
TO A REQUEST FOR A STATEMENT CLARIFYING THE HEARING NOTICE, NOT ONLY
LISTED A NUMBER OF POSITIONS WHOSE PLACEMENT IN OR OUT OF THE UNIT
REMAINED UNRESOLVED AT THAT TIME, BUT POINTED OUT THAT THE LIST WAS NOT
ALL INCLUSIVE AND THAT, "EACH PARTY SHOULD BE PREPARED TO FURNISH
INFORMATION RELATIVE TO ANY POSITION WITHIN THE CHICAGO REGION OF
CUSTOMS. . . . "
/11/ AS THE RECORD DOES NOT SET FORTH SUFFICIENT FACTS WITH RESPECT
TO EMPLOYEES ALLEGED TO BE PROFESSIONALS WITHIN THE MEANING OF THE ORDER
(ACCOUNTANTS AND CHEMISTS), I SHALL MAKE NO FINDING AS TO WHICH EMPLOYEE
CATEGORIES WITHIN THE CLAIMED UNIT ARE PROFESSION.
/12/ THE RECORD IN THE SUBJECT CASE IS UNCLEAR AS TO WHETHER THE
INCLUSION OF EMPLOYEES CLASSIFIED AS IMPORT SPECIALIST TEAM LEADER,
ADMINISTRATIVE OFFICER, PUBLIC INFORMATION OFFICER, EDITORIAL ASSISTANT,
MISCELLANEOUS DOCUMENT EXAMINER AND PORT DIRECTORS AT "ONE-MAN" PORTS,
AS WELL AS PROFESSIONAL EMPLOYEES AND "TEMPORARY" EMPLOYEES IN THE
PETITIONED FOR UNIT RENDERS INADEQUATE THE NCSA'S SHOWING OF INTEREST.
ACCORDINGLY, BEFORE PROCEEDING TO AN ELECTION IN THE SUBJECT CASE, THE
APPROPRIATE AREA ADMINISTRATOR IS DIRECTED TO REEVALUATE THE SHOWING OF
INTEREST. IF HE DETERMINES THAT, BASED ON THE INCLUSION OF CERTAIN
EMPLOYEES IN THE ABOVE-NAMED CATEGORIES, THE NCSA'S SHOWING OF INTEREST
IS INADEQUATE, THE PETITION IN THIS CASE SHOULD BE DISMISSED.
2 A/SLMR 209; P. 502; CASE NO. 71-2282(RO); SEPTEMBER 29, 1972.
HOUSING DIVISION, DIRECTORATE OF INDUSTRIAL OPERATIONS,
HEADQUARTERS 9TH INFANTRY DIVISION AND FORT LEWIS,
FORT LEWIS, WASHINGTON
A/SLMR NO. 209
THE REPRESENTATION PETITION FILED IN THIS CASE BY THE PETITIONER,
LODGE 2014, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO (IAM), WAS FOR A UNIT OF ALL WAGE BOARD EMPLOYEES OF
THE HOUSING DIVISION, DIRECTORATE OF INDUSTRIAL OPERATIONS AT FORT
LEWIS, WASHINGTON (APPROXIMATELY SEVEN EMPLOYEES), EXCLUDING, AMONG
OTHERS, ALL GENERAL SCHEDULE EMPLOYEES. THE ACTIVITY OBJECTED TO THE
REQUESTED UNIT BECAUSE IT EXCLUDED THE DIVISION'S GENERAL SCHEDULE
EMPLOYEES (APPROXIMATELY 31).
THE ASSISTANT SECRETARY FOUND THAT THE PETITIONED FOR UNIT WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION, AND HE DISMISSED
THE PETITION. HE NOTED THAT ALTHOUGH THE ACTIVITY HAD A LONG-STANDING
COLLECTIVE-BARGAINING HISTORY OF MANY REPRESENTATION UNITS - SOME OF
WHICH WERE AS SMALL AND RESTRICTED IN SCOPE AS THE ONE INVOLVED IN THE
SUBJECT CASE - ALL OF THESE UNITS, WITH ONE EXCEPTION FALLING UNDER
EXECUTIVE ORDER 11491, WERE ESTABLISHED PURSUANT TO EXECUTIVE ORDER
10988. UNDER SECTION 10(B) OF EXECUTIVE ORDER 11491, AS AMENDED, THE
ASSISTANT SECRETARY NOTED THAT TO CONSTITUTE AN APPROPRIATE UNIT THERE
MUST BE EVIDENCE THAT THE EMPLOYEES IN SUCH UNIT SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST AND THAT THE PROPOSED UNIT WILL
PROMOTE THE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE ASSISTANT SECRETARY FOUND THAT THE EVIDENCE INDICATED THAT THE
CLAIMED UNIT DID NOT MEET THE ABOVE REQUIREMENTS. THUS, THE ACTIVITY'S
HOUSING DIVISION WAGE BOARD AND GENERAL SCHEDULE EMPLOYEES WERE
INTEGRATED AS A TEAM WORKING UNDER ALMOST IDENTICAL CONDITIONS TO
PROVIDE HOUSING FACILITIES FOR MILITARY PERSONNEL CONNECTED WITH FORT
LEWIS. ALSO, OTHER WAGE BOARD EMPLOYEES HAVING THE SAME JOB
CLASSIFICATION AT FORT LEWIS, AS EMPLOYEES IN THE CLAIMED UNIT,
PERFORMED COMPARABLE DUTIES. IN THESE CIRCUMSTANCES, IT WAS CONCLUDED
THAT THE CLAIMED EMPLOYEES DID NOT SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND APART FROM OTHER ACTIVITY EMPLOYEES,
AND THAT SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS.
HOUSING DIVISION, DIRECTORATE OF INDUSTRIAL OPERATIONS,
HEADQUARTERS 9TH INFANTRY DIVISION AND FORT LEWIS,
FORT LEWIS, WASHINGTON, /1/
AND
LODGE 2014, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO /2/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER DALE L. BENNETT.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, LODGE 2014, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, HEREIN CALLED IAM, SEEKS AN
ELECTION IN A UNIT COMPOSED OF ALL WAGE BOARD EMPLOYEES OF THE HOUSING
DIVISION, DIRECTORATE OF INDUSTRIAL OPERATIONS AT FORT LEWIS, WASHINGTON
(APPROXIMATELY SEVEN EMPLOYEES), EXCLUDING ALL GENERAL SCHEDULE
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, PROFESSIONAL EMPLOYEES,
AND SUPERVISORS AND GUARDS AS DEFINED IN THE EXECUTIVE ORDER.
THE ACTIVITY'S POSITION IS THAT THE UNIT SOUGHT IS NOT APPROPRIATE
BECAUSE IT EXCLUDES GENERAL SCHEDULE EMPLOYEES IN THIS DIVISION
(APPROXIMATELY 31) WHO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST WITH THE WAGE BOARD EMPLOYEES. IT ASSERTS THAT THEY ALL WORK
UNDER THE OVERALL SUPERVISION OF THE FORT LEWIS HOUSING OFFICER,
PERFORMING DUTIES OF AN INTEGRATED NATURE INVOLVING DAY-TO-DAY CONTACT,
AND THAT THEY ARE ALL SUBJECT TO THE SAME PERSONNEL POLICIES,
PROCEDURES, AND FRINGE BENEFITS.
THE HEADQUARTERS 9TH INFANTRY DIVISION AND FORT LEWIS AT FORT LEWIS,
WASHINGTON, ARE SEPARATE U.S. ARMY OPERATIONAL COMPONENTS BUT ARE
INTRINSICALLY RELATED BECAUSE THE FORT LEWIS MISSION IS TO SUPPORT THE
HEADQUARTERS 9TH INFANTRY DIVISION GARRISONED AT THAT LOCATION. FORT
LEWIS ADDITIONALLY HAS ADMINISTRATIVE RESPONSIBILITY FOR THREE OTHER
ARMY FACILITIES: (1) FORT LAWTON AT SEATTLE, WASHINGTON, WHICH SUPPORTS
RESERVE ACTIVITIES AND IS ABOUT 50 MILES DISTANT; (2) VANCOUVER
BARRACKS AT VANCOUVER, WASHINGTON, WHICH ALSO SUPPORTS RESERVE
ACTIVITIES AND IS ABOUT 150 MILES FROM FORT LEWIS; AND (3) YAKIMA
FIRING CENTER, YAKIMA, WASHINGTON, MORE THAN 130 MILES AWAY. ALL OF THE
EMPLOYEES IN THE CLAIMED UNIT WORK AT FORT LEWIS WITH THE EXCEPTION OF
ONE, EMPLOYED AT FORT LAWTON.
FORT LEWIS CIVILIAN OPERATIONS ARE ORGANIZATIONALLY CARRIED ON
PRIMARILY THROUGH EIGHT DIRECTORATES: (1) COMPTROLLER, (2) PERSONNEL
AND COMMUNITY ACTIVITIES, (3) SECURITY, (4) PLANS AND TRAINING, (5)
INDUSTRIAL OPERATIONS, (6) MEDICAL ACTIVITIES, (7) COMMUNICATIONS AND
ELECTRONICS, AND (8) FACILITIES ENGINEERING. IT IS THE FIFTH
DIRECTORATE ABOVE - INDUSTRIAL OPERATIONS (DIO) - WHICH ENCOMPASSES THE
IAM'S DESIRED UNIT. THE HEAD OF DIO, AS IN THE CASE OF THE OTHER
DIRECTORATE HEADS, REPORTS TO THE CHIEF OF STAFF WHO, IN TURN, IS
DIRECTLY UNDER THE COMMANDING GENERAL'S OFFICE.
THE DIO EMPLOYS APPROXIMATELY 1,500 WAGE BOARD AND GENERAL SCHEDULE
EMPLOYEES, OF WHOM 60 PERCENT ARE IN THE FORMER CLASSIFICATION AND 40
PERCENT IN THE LATTER. BOTH CLASSIFICATIONS ARE ASSIGNED TO VARIOUS DIO
DIVISIONS, THE PRIMARY ONES BEING: (1) HOUSING, (2) PROCUREMENT, (3)
MAINTENANCE, (4) TRANSPORTATION, (5) SUPPLY, (6) SERVICES, AND (7)
CENTRAL FOOD PREPARATION FACILITY. THERE ARE 38 WAGE BOARD AND GENERAL
SCHEDULE EMPLOYEES IN THE HOUSING DIVISION, INCLUDING THE SEVEN CLAIMED
EMPLOYEES. THIS DIVISION IS HEADED BY A HOUSING PROJECT MANAGER WHO IS
IMMEDIATELY RESPONSIBLE TO THE DIO HEAD. THE MANAGER IS AIDED BY A
SERGEANT MAJOR AND A SECRETARY IN RUNNING THE DIVISION.
THERE ARE THREE PARTS TO THE HOUSING DIVISION: THE PROGRAM AND
BUDGET OFFICE; THE BILLETING BRANCH; AND THE FAMILY HOUSING BRANCH.
ONLY THE FAMILY HOUSING BRANCH INCLUDES ANY WAGE BOARD CLASSIFICATIONS;
THE OTHER TWO PARTS ARE MANNED BY GENERAL SCHEDULE EMPLOYEES, ASSISTED,
IN SOME INSTANCES, BY MILITARY PERSONNEL. TOGETHER, HOWEVER, ALL
HOUSING DIVISION COMPONENTS FUNCTION TO PROVIDE HOUSING FOR ELIGIBLE
MILITARY PERSONNEL AT FORT LEWIS (OR AT FORT LAWTON TO A LIMITED
EXTENT). SUCH HOUSING MAY BE FOR FAMILIES, TRANSIENTS, OR BACHELORS,
AND IT MAY INVOLVE ON-OR-OFF-POST HOUSING LOCATIONS. IN ANY EVENT,
DIVISION PERSONNEL MUST MANAGE FUNDS TO SUPPORT A HOUSING PROGRAM; FIND
SUITABLE HOUSING; HELP INDIVIDUALS WITH MOVING IN AND/OR OUT OF
HOUSING; AND ESTABLISH HOUSING MAINTENANCE, REPAIR, AND IMPROVEMENT
PROCEDURES.
THE PROGRAM AND BUDGET OFFICE IS MAINLY CONCERNED WITH ADMINISTERING
THE PROGRAM AND BUDGET ASPECTS OF THE DIVISION'S HOUSING FUNCTION.
THERE IS ONE CIVILIAN SUPERVISOR, TWO PERMANENT GENERAL SCHEDULE CLERKS,
AND ONE TEMPORARY EMPLOYEE ALLOCATED FOR THE OFFICE. THEY, AS WELL AS
ALL HOUSING DIVISION GENERAL SCHEDULE EMPLOYEES, REPORT TO ONE OF FORT
LEWIS' MAIN POST BUILDINGS. THE RECORD REVEALS THAT THESE PARTICULAR
DIVISION GENERAL SCHEDULE PEOPLE RARELY LEAVE THE BUILDING DURING THEIR
WORKING DAY.
THIS IS TRUE, TOO, OF THE DIVISION'S BILLETING BRANCH GENERAL
SCHEDULE EMPLOYEES WHO INCLUDE A CIVILIAN SUPERVISOR, ONE GENERAL
SCHEDULE GENERAL SUPPLY ASSISTANT, AND ONE GENERAL SCHEDULE HOUSING
CLERK. SEVEN MILITARY PEOPLE, 40 TO 50 NONAPPROPRIATED FUND EMPLOYEES,
AND 6 TO 8 BORROWED EMPLOYEES (THE LAST TWO CATEGORIES UTILIZED DURING
THE SUMMER MONTHS ARE A PART ALSO OF THE BRANCH. THE INCREASE IN OFFICE
MANPOWER DURING THE SUMMER FOLLOWS FROM THE BRANCH'S DUTY TO OPERATE
TRANSIENT AND BACHELOR QUARTERS, FOR WHICH THERE IS A SPECIFIC NEED
DURING SUMMER RESERVE TRAINING SESSIONS, IN CONTRAST WITH FAMILY
QUARTERS WHICH ARE NECESSARY GENERALLY ON A YEAR-ROUND BASIS.
THE DIVISION'S FAMILY HOUSING BRANCH ATTENDS TO THE PARTICULAR NEEDS
INVOLVED IN FAMILY-TYPE HOUSING. AN ASSISTANT HOUSING PROJECT MANAGER
DIRECTS THE SIX COMPONENTS OF THE BRANCH, ONLY TWO CONTAINING ANY WAGE
BOARD CLASSIFICATIONS - THE PROPERTY SECTION AND THE FORT LAWTON
ASSIGNMENT SECTION. THE REMAINING FOUR COMPONENTS, CONTAINING GENERAL
SCHEDULE CLASSIFICATIONS AND SOME MILITARY PERSONNEL ONLY, ARE:
ASSIGNMENT AND TERMINATION SECTION, INSPECTION UNIT, MAINTENANCE
SECTION, AND HOUSING REFERRAL SECTION.
THE PROPERTY SECTION, WITH BOTH GENERAL SCHEDULE AND WAGE BOARD
EMPLOYEES, HANDLES THE MOVING OF HOUSEHOLD GOODS. THIS NECESSITATES THE
ISSUANCE OF RECEIPTS UPON DELIVERY OR PICK UP, AND THE MOVEMENT OF GOODS
INTO OR OUT OF QUARTERS OR WAREHOUSES. THE PROPERTY SECTION ALSO HAS
RESPONSIBILITY FOR THE DISPOSITION OF SURPLUS OR OBSOLETE HOUSEHOLD
EQUIPMENT. A GENERAL SCHEDULE SUPPLY OFFICER SUPERVISES THE ENTIRE
SECTION, ASSISTED BY A GENERAL SCHEDULE SUPPLY CLERK AND THREE MILITARY
PERSONNEL. THE REST OF THE SECTION CONSISTS OF THE FOLLOWING WAGE BOARD
CLASSIFICATIONS: A WAREHOUSE FOREMAN, WHO SUPERVISES TWO OR THREE MOTOR
VEHICLE OPERATORS, ONE FORKLIFT OPERATOR, AND FOUR WAREHOUSEMEN. THERE
IS ALSO ONE WAGE BOARD WAREHOUSEMAN AT FORT LAWTON, WHO IS SUPERVISED AT
THAT LOCATION AND RARELY, IF EVER, COMES IN CONTACT WITH ANY OF FORT
LEWIS' PROPERTY SECTION WAGE BOARD EMPLOYEES. ALL OF THESE WAGE BOARD
INDIVIDUALS ARE ENGAGED IN IDENTICAL WORK AS INDICATED ABOVE. IN DOING
SO, WHILE THERE ARE A NUMBER OF WAREHOUSES ON, AT LEAST, THE FORT LEWIS
POST, FORT LEWIS EMPLOYEES REPORT EACH DAY TO ONLY THE ONE IN WHICH
THEIR WAREHOUSE FOREMAN MAINTAINS AN OFFICE. THIS WAREHOUSE IS ABOUT
TWO MILES AWAY FROM THE BUILDING IN WHICH THE DIVISION'S GENERAL
SCHEDULE PEOPLE HAVE THEIR OFFICES. AFTER REPORTING TO THE WAREHOUSE,
THE WAGE BOARD EMPLOYEES ARE DISPATCHED, FOR THE REMAINDER OF THE WORK
DAY, TO PARTICULAR WAREHOUSES OR HOUSING LOCATIONS WHICH REQUIRE THE
MOVEMENT OF HOUSEHOLD PROPERTY. THE FORKLIFT OPERATOR AND WAREHOUSEMEN
RIDE TO THESE LOCATIONS IN TRUCKS OPERATED BY THE SECTION'S MOTOR
VEHICLE DRIVERS IN ORDER TO CARRY OUT THEIR ASSIGNMENTS.
NOTWITHSTANDING THAT THE WAREHOUSE FOREMAN IS IN SUPERVISORY CHARGE OF
THE PROPERTY SECTION'S WAGE BOARD EMPLOYEES, HE DOES CONSULT WITH ITS
GENERAL SCHEDULE SUPPLY OFFICER ABOUT PERSONNEL MATTERS, AND THE LATTER
IS, IN FACT, THE FOREMAN'S OWN IMMEDIATE SUPERVISOR.
THE REMAINING COMPONENTS OF THE FAMILY HOUSING BRANCH, WITH GENERAL
SCHEDULE AND SOME MILITARY STAFFING, PROVIDE SERVICES WHICH ARE DIRECTLY
CONNECTED WITH THOSE OF THE PROPERTY SECTION. THUS, THE ASSIGNMENT AND
TERMINATION SECTION, IN CONJUNCTION WITH THE HOUSING REFERRAL SECTION
(THREE GENERAL SCHEDULE EMPLOYEES), ARRANGES FOR THE ACTUAL DISPENSATION
OF HOUSING UNITS TO INDIVIDUAL FAMILIES AND FOR THE RELEASE OF FAMILIES
FROM THEIR QUARTERS WHO ARE MOVING TO OTHER LOCALITIES. BOTH OF THESE
OPERATIONS REQUIRE AN INSPECTION AND INVENTORY OF THE PROPERTY INVOLVED.
IT IS ALSO REQUIRED THAT NEW OCCUPANTS BE INTRODUCED TO THEIR NEW
RESIDENCE AND THAT THEIR OBLIGATIONS BE EXPLAINED. WHEN AN OCCUPANT
MOVES OUT, AN INVERSE PROCEDURE IS EFFECTED. THE BRANCH'S INSPECTION
UNIT IS SUPERVISED BY THE ASSIGNMENT AND TERMINATION SECTION. FIVE
GENERAL SCHEDULE QUARTERS AND PROPERTY INSPECTORS AND ONE MILITARY MAN
MAKE UP THIS UNIT AND THEY ARE CONSTANTLY PROCEEDING FROM PLACE TO
PLACE, DEALING WITH FAMILIES AND PROPERTY. WHEN PROBLEMS WITH QUARTERS
ARE ENCOUNTERED BY INSPECTORS, THE MAINTENANCE SECTION IS CALLED UPON
FOR A POSSIBLE REMEDY. /3/
ALL FORT LEWIS PERSONNEL (AND THE FORT LAWTON WAREHOUSEMAN) ARE
SUBJECT TO THE SAME PERSONNEL POLICIES AND REGULATIONS, AND ENJOY THE
SAME FRINGE BENEFITS ADMINISTERED BY THE FORT LEWIS CIVILIAN PERSONNEL
OFFICE IN WHICH THE PERSONNEL RECORDS ALSO ARE MAINTAINED. UNDER THE
COMPTROLLER, A CENTRAL PAYROLL OFFICE OPERATES, WITH A SINGLE PAYDAY FOR
ALL EMPLOYEES. WORKING AND LUNCH HOURS ARE IDENTICAL FOR GENERAL
SCHEDULE AND WAGE BOARD PERSONNEL. GENERAL SCHEDULE AND WAGE BOARD
PEOPLE DO NOT INTERCHANGE DUTIES, BUT WAGE BOARD AND GENERAL SCHEDULE
EMPLOYEES DO TRANSFER BETWEEN DIRECTORATES FOR PROMOTION AND
REDUCTION-IN-FORCE REASONS.
THE EVIDENCE ESTABLISHES THAT THE ACTIVITY HAS HAD A FAIRLY LONG AND
COMPLICATED GENERAL COLLECTIVE-BARGAINING, HISTORY. SINCE 1965, IT HAS
GRANTED THE IAM EXCLUSIVE RECOGNITIONS FOR VARIOUS EMPLOYEE BARGAINING
UNITS, SOME SITUATED IN DIO DIVISIONS (EXCEPT THE HOUSING DIVISION), AND
SOME IN OTHER DIRECTORATES. THE UNITS HAVE BEEN CONFINED TO WAGE BOARD
EMPLOYEES. CURRENTLY, ONLY A SMALL NUMBER OF THE ACTIVITY'S WAGE BOARD
EMPLOYEES, APPARENTLY SOMEWHERE BETWEEN 25 AND 50, ARE NOT REPRESENTED
BY ANY LABOR ORGANIZATION. THE RECORD REVEALS THAT CERTAIN OTHER
DIRECTORATES, LOCATED AT FORT LEWIS, EMPLOY MOTOR VEHICLE OPERATORS AND
WAREHOUSEMEN, AND SOME OF THESE CLASSIFICATIONS REMAIN UNREPRESENTED.
THEIR FUNCTIONS CORRESPOND TO THE WAGE BOARD EMPLOYEES IN THE CLAIMED
UNIT, EXCEPT FOR THE NATURE OF THE GOODS HANDLED. A SECOND LABOR
ORGANIZATION - THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1504, AFL-CIO (AFGE) - ALSO REPRESENTS UNITS OF DIO EMPLOYEES OUTSIDE OF
THE HOUSING DIVISION, AS WELL AS EMPLOYEES IN OTHER DIRECTORATES. THESE
UNITS INCLUDE EITHER BOTH WAGE BOARD (IN SOME INSTANCES THIS MEANS MOTOR
VEHICLE OPERATORS AND WAREHOUSEMEN) AND GENERAL SCHEDULE
CLASSIFICATIONS, OR GENERAL SCHEDULE CLASSIFICATIONS ALONE.
IN TERMS OF SIZE, ALL OF THE ACTIVITY'S UNITS HAVE VARIED A GREAT
DEAL, FROM AN ESTIMATED 4 TO 324 EMPLOYEES. HOWEVER, IN DIO UNITS, A
COMPARISON SHOWS THAT THE NUMBER OF EMPLOYEES REPRESENTED BY THE AFGE
AND BY THE IAM IS APPROXIMATELY EQUAL. /4/ IN OTHER DIRECTORATES, THE
IAM AND THE AFGE HAVE DIVIDED EMPLOYEE REPRESENTATION ALONG WAGE BOARD
AND GENERAL SCHEDULE EMPLOYEE LINES, RESPECTIVELY, ON A DIRECTORATE-WIDE
BASIS.
ALL OF THESE EXISTING EXCLUSIVE RECOGNITIONS WERE ESTABLISHED
PURSUANT TO EXECUTIVE ORDER 10988, WITH ONE EXCEPTION; UNDER EXECUTIVE
ORDER 11491, THE AFGE WAS GRANTED A GENERAL SCHEDULE FIREFIGHTER UNIT
LOCATED IN THE DIRECTORATE OF FACILITIES ENGINEERING. ALL WAGE BOARD
EMPLOYEES IN THAT DIRECTORATE ARE REPRESENTED BY THE IAM.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE PETITIONED FOR
UNIT, COMPOSED OF ALL WAGE BOARD EMPLOYEES OF THE HOUSING DIVISION,
DIRECTORATE OF INDUSTRIAL OPERATIONS AT FORT LEWIS, WASHINGTON, IS
INAPPROPRIATE. A COMBINATION OF FACTORS INFLUENCES MY DECISION.
WHILE THE ACTIVITY HAS, IN THE PAST, GRANTED EXCLUSIVE RECOGNITION TO
THE IAM FOR SMALL WAGE BOARD UNITS, SUCH UNITS WERE ESTABLISHED PRIOR TO
THE ADVENT OF EXECUTIVE ORDER 11491. UNDER SECTION 10(B) OF EXECUTIVE
ORDER 11491, AS AMENDED, IN ORDER TO CONSTITUTE AN APPROPRIATE UNIT, THE
EMPLOYEES INVOLVED MUST SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST. IN ADDITION, THE UNIT MUST BE ONE WHICH WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
IN MY OPINION, THE FACTS PRESENTED ABOVE CONCERNING THE UNIT SOUGHT
IN THE SUBJECT CASE DO NOT MEET THE REQUIREMENTS OF EXECUTIVE ORDER
11491, AS AMENDED. THUS, IT IS CLEAR THAT THE HOUSING DIVISION IS A
HIGHLY INTEGRATED OPERATION WITHIN THE SCHEME OF THE ACTIVITY'S MISSION.
ITS WAGE BOARD AND GENERAL SCHEDULE EMPLOYEES WORK AS A TEAM TO
ACCOMPLISH THE HOUSING OF MILITARY PERSONNEL CONNECTED WITH FORT LEWIS
AND FORT LAWTON. WHILE SOME OF THESE PEOPLE REMAIN STATIONED IN
OFFICES, OTHERS MOVE AROUND, ON AND OFF THE POST, AND THIS
DIFFERENTIATION OF WORKING CONDITIONS IS NOT ALONG WAGE BOARD AND
GENERAL SCHEDULE LINES. IN ALMOST ALL OTHER RESPECTS, THE PERSONNEL OF
THIS DIVISION ARE SUBJECT TO THE SAME PERSONNEL POLICIES AND
REGULATIONS, AND ENJOY THE SAME FRINGE BENEFITS. MOREOVER, THE RECORD
REVEALS THAT THERE ARE OTHER FORT LEWIS WAGE BOARD WAREHOUSEMEN, IN
OTHER DIRECTORATES, WHOSE ONLY SIGNIFICANT DIFFERENCE FROM THE
WAREHOUSEMEN IN THE CLAIMED UNIT IS APPARENTLY THAT THEY MOVE ITEMS IN
AND OUT OF WAREHOUSES OTHER THAN HOUSEHOLD GOODS.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN THE CLAIMED
UNIT DO NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND APART FROM OTHER ACTIVITY EMPLOYEES, AND THAT SUCH A
FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. ACCORDINGLY, I SHALL ORDER THAT THE IAM'S PETITION
BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 71-2282(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 29, 1972
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ IF HOUSEHOLD EQUIPMENT IS INVOLVED, FOR EXAMPLE, A DEFECTIVE
STOVE, THE PROPERTY SECTION'S WAGE BOARD EMPLOYEES MAY BE ASKED TO
DELIVER A NEW ONE FROM ONE OF THE POST'S WAREHOUSES WHEN THE DEFECTIVE
ONE CANNOT BE REPAIRED BY MAINTENANCE PEOPLE.
/4/ DURING THIS PROCEEDING, THE IAM DID NOT EXPRESS A DESIRE, IN THE
ALTERNATIVE, TO REPRESENT A COMBINED WAGE BOARD AND GENERAL SCHEDULE
CLASSIFICATIONS UNIT IN THE DIO'S FAMILY HOUSING BRANCH OR IN THE ENTIRE
HOUSING DIVISION.
2 A/SLMR 208; P. 498; CASE NO. 71-2079(RO); SEPTEMBER 29, 1972.
ARMY AND AIR FORCE EXCHANGE SERVICE,
ALASKAN EXCHANGE SYSTEM,
SOUTHERN DISTRICT AND HEADQUARTERS,
ELMENDORF AIR FORCE BASE AND
FORT RICHARDSON, ANCHORAGE, ALASKA
A/SLMR NO. 208
THIS CASE AROSE AS A RESULT OF A REPRESENTATION PETITION FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1668 (AFGE)
FOR A UNIT OF ALL EMPLOYEES OF THE ACTIVITY'S SOUTHERN DISTRICT AND
HEADQUARTERS. THE PARTIES STIPULATED TO THE APPROPRIATENESS OF THE UNIT
AND THE UNIT STATUS OF ALL EMPLOYEES EXCEPT A STORE MANAGER AND A
RECEIVING SUPERVISOR, WHOSE UNIT STATUS WAS LEFT TO THE DETERMINATION OF
THE ASSISTANT SECRETARY BECAUSE THE PARTIES COULD NOT AGREE ON THEIR
ALLEGED SUPERVISORY STATUS.
THE ASSISTANT SECRETARY FOUND THAT THE CLAIMED UNIT OF ALL EMPLOYEES
OF THE ACTIVITY'S SOUTHERN DISTRICT AND HEADQUARTERS WAS APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION IN THAT THEY SHARED A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST. IN THIS CONNECTION, THE ASSISTANT
SECRETARY NOTED THAT ALL EMPLOYEES IN THE PROPOSED UNIT ARE SUBJECT TO
SAME PERSONNEL POLICIES AND REGULATIONS; THE SAME PAY SCALES; ARE
INCLUDED ON THE SAME ROSTER FOR "REDUCTION-IN-FORCE" PURPOSES; ARE
TRANSFERRED WITHIN THE UNIT AS NEEDS DICTATE; AND SHARE ESSENTIALLY THE
SAME FRINGE BENEFITS AND WORKING CONDITIONS. THE ASSISTANT SECRETARY
FURTHER NOTED THAT JOB VACANCIES IN THE WORK FORCE ARE POSTED ON A
UNIT-WIDE BASIS AND THAT THE EMPLOYEES IN THE CLAIMED UNIT ARE
GEOGRAPHICALLY ISOLATED FROM THE OTHER EMPLOYEES OF THE ALASKAN EXCHANGE
SYSTEM.
THE ASSISTANT SECRETARY ACCEPTED THE STIPULATIONS OF THE PARTIES WITH
RESPECT TO THE UNIT PLACEMENT OF CERTAIN MANAGEMENT OFFICIALS,
SUPERVISORS, CONFIDENTIAL EMPLOYEES, GUARDS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK AND A PROFESSIONAL EMPLOYEE.
REGARDING THE ALLEGED SUPERVISORS WHOSE UNIT PLACEMENT WAS LEFT TO
THE DETERMINATION OF THE ASSISTANT SECRETARY, THE ASSISTANT SECRETARY
FOUND THAT THERE WAS INSUFFICIENT EVIDENCE ON WHICH TO DETERMINE THE
UNIT PLACEMENT OF A "RECEIVING SUPERVISOR" IN VIEW OF THE LACK OF ANY
EVIDENCE ON HER ALLEGED SUPERVISORY DUTIES OR RESPONSIBILITIES. THE
ASSISTANT SECRETARY ALSO FOUND THAT A STORE MANAGER WAS NOT A SUPERVISOR
WITHIN THE MEANING OF THE ORDER IN THE ABSENCE OF ANY EVIDENCE THAT THE
EMPLOYEE INVOLVED EXERCISED ANY SUPERVISORY AUTHORITY.
ARMY AND AIR FORCE EXCHANGE SERVICE,
ALASKAN EXCHANGE SYSTEM, SOUTHERN
DISTRICT AND HEADQUARTERS,
ELMENDORF AIR FORCE BASE AND
FORT RICHARDSON, ANCHORAGE, ALASKA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1668
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER DALE L. BENNETT.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1668, HEREIN CALLED THE AFGE, SEEKS AN ELECTION IN A UNIT
OF ALL REGULAR FULL-TIME AND REGULAR PART-TIME EMPLOYEES, INCLUDING
REGULARLY SCHEDULED PART-TIME MILITARY EMPLOYEES, EMPLOYED BY THE ARMY
AND AIR FORCE EXCHANGE SERVICE, ALASKAN EXCHANGE SYSTEM, SOUTHERN
DISTRICT AND HEADQUARTERS, ELMENDORF AIR FORCE BASE AND FORT RICHARDSON,
ANCHORAGE, ALASKA, EXCLUDING TEMPORARY FULL-TIME EMPLOYEES (EMPLOYED FOR
90 DAYS OR LESS NONRECURRING OR FOR A PERIOD NOT TO EXCEED 180 DAYS
BASED ON A SPECIFIC EVENT NONRECURRING), TEMPORARY PART-TIME EMPLOYEES
(EMPLOYED FOR 90 DAYS OR LESS NONRECURRING), CASUAL AND ON-CALL
EMPLOYEES, CONFIDENTIAL SECRETARIES, EMPLOYEES AT ALL OTHER
INSTALLATIONS IN THE ALASKAN EXCHANGE SYSTEM, INCLUDING EMPLOYEES AT THE
WILDWOOD AIR FORCE STATION EXCHANGE, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, GUARDS AND SUPERVISORS AS DEFINED IN
THE EXECUTIVE ORDER. /2/ THE ACTIVITY AND THE AFGE STIPULATED THAT THE
UNIT SOUGHT IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER THE EXECUTIVE ORDER, AND AGREED WITH RESPECT TO THE UNIT PLACEMENT
OF ALL EMPLOYEES EXCEPT TWO ALLEGED SUPERVISORS, WHOSE UNIT PLACEMENT
WAS LEFT TO THE DETERMINATION OF THE ASSISTANT SECRETARY.
THE ARMY AND AIR FORCE EXCHANGE SERVICE IS A NONAPPROPRIATED FUND
INSTRUMENTALITY OF THE UNITED STATES DEPARTMENT OF DEFENSE AND IS
CHARGED WITH THE MISSION OF OPERATING RETAIL AND SERVICE FACILITIES FOR
THE CONVENIENCE OF MILITARY PERSONNEL AND THEIR DEPENDENTS AND
GENERATING REASONABLE REVENUE FROM ITS OPERATION FOR THE CENTRAL
MILITARY WELFARE FUND. IT IS HEADQUARTERED IN DALLAS, TEXAS AND IS
DIVIDED INTO FIVE MAJOR DIVISIONS LOCATED WITHIN THE CONTINENTAL UNITED
STATES AND THREE MAJOR OVERSEAS DIVISIONS, INCLUDING THE ALASKAN
EXCHANGE SYSTEM, THE DIVISION INVOLVED HEREIN. EACH OF THE DIVISIONS IS
RESPONSIBLE FOR THE ADMINISTRATION OF A NUMBER OF EXCHANGE OPERATIONS
WITHIN A CERTAIN GEOGRAPHIC AREA.
THE ALASKAN EXCHANGE SYSTEM CONSISTS OF THE FOLLOWING BASIC
COMPONENTS: THE HEADQUARTERS AND SOUTHERN DISTRICT-- WHICH CONTAIN THE
EMPLOYEES COVERED BY THE INSTANT PETITION-- , THE NORTHERN DISTRICT AND
THE REMOTE STATIONS OPERATIONS. THE HEADQUARTERS IS COMPRISED OF THE
EXECUTIVE OFFICES, THE OPERATING STAFF AND THE SUPPORT STAFF. THE
SOUTHERN DISTRICT IS COMPRISED OF THE EXCHANGE FACILITIES LOCATED ON THE
ELMENDORF AIR FORCE BASE, FORT RICHARDSON AND THE WILDWOOD AIR FORCE
BASE. /3/ THE HEADQUARTERS AND SOUTHERN DISTRICT ELEMENTS ARE LOCATED
ON THE ELMENDORF AIR FORCE BASE-- FORT RICHARDSON COMPLEX, WHICH IS
SITUATED ON TWO ADJOINING MILITARY RESERVATIONS AT ANCHORAGE, ALASKA.
THE NORTHERN DISTRICT OFFICE IS LOCATED IN FAIRBANKS, ALASKA, SOME 300
LAND MILES FROM ANCHORAGE, AND THE REMOTE STATIONS ARE LOCATED BETWEEN
300 AND 1,600 MILES FROM ANCHORAGE.
THE ACTIVITY IS HEADED BY A COMMANDER WHO IS RESPONSIBLE FOR ITS
OVERALL OPERATION AND ADMINISTRATION. HE IS LOCATED AT THE ACTIVITY
HEADQUARTERS AND IS ASSISTED BY A DEPUTY COMMANDER AND A CIVILIAN
EXECUTIVE, BOTH OF WHOM HAVE BEEN DELEGATED CERTAIN ADMINISTRATIVE
RESPONSIBILITIES. THESE TOP LEVEL ADMINISTRATORS ARE LOCATED IN THE
HEADQUARTERS EXECUTIVE OFFICES. IMMEDIATELY BELOW THIS LINE OF
AUTHORITY IS THE OPERATING STAFF ENCOMPASSING THE RETAIL BRANCH, THE
FOOD BRANCH AND THE VENDING, SERVICES AND CONCESSIONS BRANCH. THE
OPERATING STAFF FUNCTIONS AS THE LIAISON BETWEEN THE EXECUTIVE OFFICES
AND THE OPERATIONAL BRANCHES AT THE EXCHANGE LEVEL AND ALSO PERFORMS
LIAISON FUNCTIONS BETWEEN THE EXECUTIVE OFFICES AND THE SUPPORT STAFF.
THE SUPPORT STAFF PERFORMS ADMINISTRATIVE AND SUPPORT FUNCTIONS
NECESSARY AND INCIDENTAL TO THE CONDUCTING OF AN EXTENSIVE RETAIL
OPERATION. IT CONSISTS OF SIX BRANCHES: STORAGE AND DISTRIBUTION,
FINANCE AND ACCOUNTING, PERSONNEL AND ADMINISTRATION, ENGINEERING AND
MAINTENANCE, COMPUTER PROCESSING AND INVENTORY MANAGEMENT. AMONG THE
EMPLOYEES IN THESE BRANCHES ARE GENERAL CLERKS, CONTRACT CLERKS,
PERSONNEL CLERKS, OFFICE MACHINE OPERATORS, SIGN MAKERS, CUSTODIAL
WORKERS, ACCOUNTING CLERKS, PAYROLL CLERKS, CASHIERS, COMPUTER
OPERATORS, KEY PUNCH OPERATORS, DATA PROCESSING CLERKS, SECRETARIES,
PROCUREMENT CLERKS, CLERK TYPISTS, MAINTENANCE WORKERS, CARPENTERS,
REFRIGERATION AND AIR CONDITIONING TECHNICIANS, ELECTRICIANS, MECHANICS,
TRUCK DRIVERS, WAREHOUSEMEN AND MERCHANDISE MARKERS, WHO ARE CLASSIFIED
AS EITHER REGULAR FULL-TIME, REGULAR PART-TIME OR MILITARY PART-TIME,
AND WHO THE PARTIES AGREE SHOULD BE INCLUDED IN THE UNIT.
THE SOUTHERN DISTRICT IS UNDER THE ADMINISTRATION OF AN EXCHANGE
OFFICER AND A GENERAL MANAGER WHO ARE RESPONSIBLE FOR THE DAY-TO-DAY
OPERATION OF THE DISTRICT. IT IS COMPRISED OF SOME THIRTEEN RETAIL
STORES, SEVEN FOOD SERVICE ESTABLISHMENTS AND TWO SERVICE STATIONS.
AMONG THE EMPLOYEES EMPLOYED AT THESE FACILITIES ARE GENERAL CLERKS,
SALES CLERKS, CASHIER-CHECKERS, STOCK HANDLERS, CUSTODIAL WORKERS,
MOBILE FOOD OPERATORS, COOKS, COUNTER ATTENDANTS, FOOD SERVICE HELPERS,
AUTO MECHANICS, SERVICE STATION ATTENDANTS, VENDING MACHINE ATTENDANTS
WHO ARE CLASSIFIED EITHER AS REGULAR FULL-TIME, REGULAR PART-TIME OR
MILITARY PART-TIME EMPLOYEES, AND WHO THE PARTIES AGREED SHOULD BE
INCLUDED IN THE UNIT. /4/
THE EVIDENCE REVEALS THAT THE EMPLOYEES IN THE PROPOSED UNIT ARE
SUBJECT TO THE SAME PERSONNEL POLICIES AND REGULATIONS; THE SAME PAY
SCALES; AND ARE INCLUDED ON A ROSTER FOR "REDUCTION-IN-FORCE" PURPOSES
WHICH IS RESTRICTED TO NON-APPROPRIATED FUND EMPLOYEES EMPLOYED IN THE
ANCHORAGE AREA. ALSO, WHILE THERE ARE FREQUENT TRANSFERS OF EMPLOYEES
BETWEEN THE HEADQUARTERS AND THE SOUTHERN DISTRICT, THE TRANSFER OF
EMPLOYEES BETWEEN THE NORTHERN DISTRICT AND THE REMOTE STATIONS
OPERATIONS AND THE HEADQUARTERS AND THE SOUTHERN DISTRICT IS MINIMAL.
IN ADDITION, WHEN A VACANCY CREATES A PROMOTIONAL OPPORTUNITY AT EITHER
THE HEADQUARTERS OR IN THE SOUTHERN DISTRICT, NOTICES OF THE VACANCY ARE
POSTED AT THE HEADQUARTERS AND IN THE SOUTHERN DISTRICT, BUT NOT AT ANY
OF THE OTHER FACILITIES OF THE ALASKAN EXCHANGE SYSTEM. FINALLY, ALL OF
THE EMPLOYEES IN THE PROPOSED UNIT SHARE ESSENTIALLY THE SAME FRINGE
BENEFITS AND WORKING CONDITIONS. IN THESE CIRCUMSTANCES, AND NOTING THE
FACT THAT ALL EMPLOYEES IN THE PROPOSED UNIT ARE LOCATED IN THE SAME
GEOGRAPHIC AREA WHICH IS SEPARATED BY CONSIDERABLE DISTANCES FROM OTHER
EMPLOYEES OF THE ALASKAN EXCHANGE SYSTEM, I FIND THAT THE EMPLOYEES IN
THE CLAIMED UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. /5/
ELIGIBILITY ISSUES
WITH THE EXCEPTION OF THOSE EMPLOYEES NOTED BELOW, THE PARTIES AGREED
ON THE UNIT PLACEMENT OF ALL OF THE ACTIVITY'S EMPLOYEES. THE PARTIES
RAISED A QUESTION AS TO THE SUPERVISORY STATUS OF RHEA KALE, THE
"RECEIVING SUPERVISOR" AT THE MAIN STORE AT FORT RICHARDSON, AND BERNIE
BELL, WHO IS THE MANAGER OF A SMALL RETAIL STORE WHICH IS AN ANNEX OF
THE MAIN STORE AT ELMENDORF. THE EVIDENCE REVEALS THAT KALE WORKS IN
THE RECEIVING DEPARTMENT OF THE MAIN STORE AT FORT RICHARDSON. HOWEVER,
THE RECORD IS SILENT AS TO HER DUTIES AND WHILE IT APPEARS THAT
OCCASIONALLY SHE RECEIVES ASSISTANCE IN HER DEPARTMENT FROM EMPLOYEES
ASSIGNED TO OTHER DEPARTMENTS OF THE STORE, THERE IS NO EVIDENCE AS TO
WHETHER SHE EXERCISES SUPERVISORY AUTHORITY WITH RESPECT TO SUCH
EMPLOYEES OR ANY OTHER EMPLOYEES. IN THESE CIRCUMSTANCES, I AM UNABLE
TO DETERMINE WHETHER OR NOT RHEA KALE IS A SUPERVISOR WITHIN THE MEANING
OF THE EXECUTIVE ORDER AND, ACCORDINGLY, I SHALL MAKE NO FINDING IN THIS
REGARD. /6/
THE EVIDENCE REVEALS THAT BERNIE BELL IS CURRENTLY THE ONLY EMPLOYEE
EMPLOYED AT THE ACTIVITY'S SIGHT POINT ANNEX. HE IS ENGAGED IN SELLING
MERCHANDISE TO THE GENERAL PUBLIC AND IS RESPONSIBLE FOR KEEPING THE
STORE AT THE ABOVE-NAMED FACILITY STOCKED WITH MERCHANDISE. HE ALSO IS
RESPONSIBLE FOR THE FUNDS USED IN THE STORE'S OPERATIONS. THE RECORD
REVEALS THAT SIGHT POINT HAS NEVER HAD MORE THAN TWO EMPLOYEES. AS
THERE IS NO EVIDENCE THAT IN THE PERFORMANCE OF HIS JOB FUNCTIONS BELL
EXERCISES ANY SUPERVISORY AUTHORITY, I FIND THAT HE IS NOT A SUPERVISOR
WITHIN THE MEANING OF THE EXECUTIVE ORDER. ACCORDINGLY, I SHALL INCLUDE
BERNIE BELL IN THE UNIT FOUND APPROPRIATE.
THE PARTIES' STIPULATION THAT KATHLEEN W. WALKER, MARTHA JOHNSON AND
NELLIE PINO ARE CONFIDENTIAL EMPLOYEES AND, AS SUCH, THEY SHOULD BE
EXCLUDED FROM THE UNIT, IS SUPPORTED BY RECORD TESTIMONY WHICH
ESTABLISHED THAT THESE EMPLOYEES HAVE ACCESS TO INFORMATION CONCERNING
THE ACTIVITY'S LABOR RELATIONS POLICIES AND THAT THEY ARE SECRETARIES TO
INDIVIDUALS WHO FORMULATE AND CARRY OUT SUCH POLICIES. ACCORDINGLY, I
FIND THAT THEY ARE CONFIDENTIAL EMPLOYEES AND SHALL EXCLUDE THEM FROM
THE UNIT FOUND APPROPRIATE.
THE PARTIES ALSO STIPULATED THAT JAMES C. VAN ECK, A SECURITY
INSPECTOR AND ROBERT NESVICK, JR., A MESSENGER, ARE GUARDS WITHIN THE
MEANING OF THE EXECUTIVE ORDER AND, AS SUCH, THEY SHOULD BE EXCLUDED
FROM THE UNIT. /7/ AS SECURITY INSPECTOR, VAN ECK ROTATES AMONG THE
ACTIVITY'S RETAIL STORES AND HIS RESPONSIBILITIES INCLUDE THE
SURVEILLANCE OF STORE CUSTOMERS AND EMPLOYEES TO DETECT THEFT;
DETENTION OF CUSTOMERS SUSPECTED OF THEFT AND PLACING THEM IN THE
CUSTODY OF THE MILITARY POLICE; REPORTING THEFTS BY EMPLOYEES TO
MANAGEMENT OFFICIALS; AND TESTIFYING IN COURT AGAINST PERSONS CHARGED
WITH THEFT. ALSO, HE CONDUCTS SURVEYS OF THE ACTIVITY'S SECURITY SYSTEM
AND MAKES RECOMMENDATIONS TO MANAGEMENT DESIGNED TO PREVENT CUSTOMER
SHOPLIFTING AND EMPLOYEE PILFERAGE. THE MESSENGER, NESVICK, IS EMPLOYED
BY THE PERSONNEL DEPARTMENT AND HIS RESPONSIBILITIES INCLUDE THE
DELIVERY OF MAIL AND THE TRANSPORTATION OF THE ACTIVITY'S MONEY AND CASH
RECEIPTS TO AND FROM THE BANK. HE ALSO DELIVERS CHANGE FOR THE
ACTIVITY'S RETAIL OPERATIONS. HE IS ARMED AND IS EXPECTED TO USE FORCE
IF NECESSARY TO PROTECT THE ACTIVITY'S FUNDS. IN THESE CIRCUMSTANCES
AND NOTING THAT BOTH THE MESSENGER AND THE SECURITY INSPECTOR ARE
RESPONSIBLE FOR ENFORCING AGAINST ACTIVITY EMPLOYEES AND OTHER PERSONS
RULES TO PROTECT ACTIVITY PROPERTY, I FIND THAT THEY ARE GUARDS WITHIN
THE MEANING OF THE EXECUTIVE ORDER AND SHALL EXCLUDE THEM FROM THE UNIT
FOUND APPROPRIATE.
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF THE EXECUTIVE ORDER:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME EMPLOYEES, INCLUDING
OFF-DUTY MILITARY
PERSONNEL IN EITHER OF THE FOREGOING CATEGORIES, EMPLOYED BY THE ARMY
AND AIR FORCE EXCHANGE
SERVICE, ALASKAN EXCHANGE SYSTEM, SOUTHERN DISTRICT AND HEADQUARTERS,
EXCLUDING TEMPORARY
FULL-TIME EMPLOYEES, TEMPORARY PART-TIME EMPLOYEES, CASUAL AND
ON-CALL EMPLOYEES, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, /8/ PROFESSIONAL EMPLOYEES, /9/ MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS SOON AS POSSIBLE, BUT NOT LATER THAN 60
DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR
IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR
WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD, AND WHO
HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE
ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1668.
DATED, WASHINGTON, D.C.
SEPTEMBER 29, 1972
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE UNIT APPEARS AS CORRECTED AT THE HEARING.
/3/ THE PARTIES AGREED TO EXCLUDE EMPLOYEES OF THE WILDWOOD AIR FORCE
BASE EXCHANGE FACILITIES FROM THE CLAIMED UNIT AS SUCH FACILITIES WERE
SCHEDULED TO BE CLOSED PERMANENTLY, EFFECTIVE JUNE 30, 1972.
/4/ THE RECORD DISCLOSES THAT THE ACTIVITY EMPLOYS A NUMBER OF
TEMPORARY FULL-TIME AND TEMPORARY PART-TIME EMPLOYEES WHO ARE HIRED FOR
A SPECIFIC PERIOD OF TIME WHICH GENERALLY DOES NOT EXCEED 90 DAYS EXCEPT
IN UNUSUAL CIRCUMSTANCES, IN WHICH CASE THE EMPLOYEE MAY BE HIRED FOR A
PERIOD NOT TO EXCEED 180 DAYS. THE RECORD ALSO REVEALS THAT THE
ACTIVITY EMPLOYS A NUMBER OF "ON-CALL EMPLOYEES" WHO WORK ONLY IN
EMERGENCIES AND "CASUAL EMPLOYEES" WHO PERFORM SPECIFIC, NON-RECURRING
JOBS AND WHOSE WORK RECORDS ARE OF A SPORADIC NATURE. UNDER THESE
CIRCUMSTANCES, I FIND, IN AGREEMENT WITH THE PARTIES, THAT EMPLOYEES
CLASSIFIED AS TEMPORARY FULL-TIME, TEMPORARY PART-TIME, CASUAL, AND
ON-CALL DO NOT HAVE A SUBSTANTIAL AND CONTINUING INTEREST IN THEIR TERMS
AND CONDITIONS OF EMPLOYMENT ALONG WITH OTHER EMPLOYEES IN THE CLAIMED
UNIT AND THEREFORE SHOULD BE EXCLUDED FROM ANY UNIT FOUND APPROPRIATE.
CF. ALASKAN EXCHANGE SYSTEM, BASE EXCHANGE, FORT GREELY, ALASKA, A/SLMR
NO. 33 AND ARMY AND AIR FORCE EXCHANGE SERVICE, FORT HUACHUCA EXCHANGE
SERVICE, FORT HUACHUCA, ARIZONA, A/SLMR NO. 167.
/5/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, NORTON AIR FORCE BASE
EXCHANGE, NORTON AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 191.
/6/ ALSO, I SHALL MAKE NO FINDING AS TO THE SUPERVISORY STATUS OF
WILMA K. ADAMS, WHO IS EMPLOYED IN AN ANNEX OF THE MATANUSKA HALL RETAIL
STORE, IN VIEW OF THE ABSENCE OF ANY EVIDENCE IN THE RECORD CONCERNING
HER SUPERVISORY DUTIES OR RESPONSIBILITIES.
/7/ AT THE TIME OF THE HEARING, THE ACTIVITY EMPLOYED TWO WATCHMEN
WHOSE POSITIONS WERE SCHEDULED TO BE ABOLISHED PERMANENTLY BY MAY 15,
1972, AND WHO WERE RESPONSIBLE FOR PROTECTING CERTAIN MERCHANDISE,
PRINCIPALLY WEAPONS STORED AT THE ACTIVITY'S MAIN STORAGE DEPOT, AGAINST
THEFT FROM EMPLOYEES AND THE GENERAL PUBLIC. IN THIS CONNECTION, THEY
CARRIED FIREARMS AND WERE AUTHORIZED TO MAKE ARRESTS. BASED ON THE
FOREGOING, I FIND, IN AGREEMENT WITH THE PARTIES, THAT THE WATCHMEN ARE
GUARDS WITHIN THE MEANING OF THE EXECUTIVE ORDER AND IF THEY ARE STILL
EMPLOYED BY THE ACTIVITY IN THE SAME CAPACITY THEY SHOULD BE EXCLUDED
FROM THE UNIT FOUND APPROPRIATE.
/8/ THE PARTIES STIPULATED THAT EMPLOYEES WHO ARE CLASSIFIED AS
PERSONNEL CLERKS AND WHO ARE ENGAGED IN MAKING DETERMINATIONS AS TO THE
ACTIVITY'S MANPOWER NEEDS, SCREENING JOB APPLICANTS, AND PASSING ON
THEIR QUALIFICATIONS TO FILL JOB VACANCIES, AND PROCESSING NEW HIRES AND
TERMINATIONS, ARE ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
CLERICAL CAPACITY AND SHOULD BE EXCLUDED FROM THE UNIT. AS THERE IS NO
EVIDENCE THAT THE STIPULATION TO EXCLUDE THE PERSONNEL CLERKS WAS
IMPROPER, I SHALL EXCLUDE SUCH EMPLOYEES FROM THE UNIT FOUND
APPROPRIATE.
/9/ THE PARTIES STIPULATED THAT D. C. WESTFALL, THE ACTIVITY'S DESIGN
SPECIALIST SHOULD BE EXCLUDED FROM THE UNIT ON THE GROUNDS THAT HE IS A
PROFESSIONAL EMPLOYEE. THE EVIDENCE REVEALS THAT WESTFALL HAS A DEGREE
IN ARCHITECTURAL ENGINEERING AND THAT HE IS RESPONSIBLE FOR PREPARING
INITIAL ARCHITECTURAL DESIGNS USED IN CONNECTION WITH THE RECONSTRUCTION
OR RENOVATION OF THE ACTIVITY'S FACILITIES. IN THESE CIRCUMSTANCES AND
THE ABSENCE OF ANY EVIDENCE THAT THE STIPULATION OF THE PARTIES WAS
IMPROPER, I FIND THAT WESTFALL IS A PROFESSIONAL EMPLOYEE WITHIN THE
MEANING OF THE EXECUTIVE ORDER AND, ACCORDINGLY, I SHALL EXCLUDE HIM
FROM THE UNIT FOUND APPROPRIATE.
2 A/SLMR 207; P. 495; CASE NO. 22-2800(RO); SEPTEMBER 26, 1972.
ACTION
A/SLMR NO. 207
THIS CASE WHICH AROSE AS A RESULT OF A REPRESENTATION PETITION FILED
BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE),
PRESENTED THE QUESTION OF WHETHER FOREIGN SERVICE EMPLOYEES SHOULD BE
EXCLUDED FROM AN ACTIVITY-WIDE UNIT. ON OCTOBER 13, 1971, PURSUANT TO A
PREVIOUS REQUEST OF THE ACTIVITY, THE FEDERAL LABOR RELATIONS COUNCIL
REFUSED TO EXEMPT ACTION FOREIGN SERVICE EMPLOYEES FROM THE COVERAGE OF
EXECUTIVE ORDER 11491, AS AMENDED.
THE AFGE REQUESTED A UNIT COMPOSED SOLELY OF EMPLOYEES CLASSIFIED AS
GENERAL SCHEDULE EMPLOYEES. THE ACTIVITY AGREED THAT THE UNIT REQUESTED
WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. THE ACTIVITY
AND THE AFGE SOUGHT TO EXCLUDE THE FOREIGN SERVICE EMPLOYEES ON THE
BASIS THAT FOREIGN SERVICE AND GENERAL SCHEDULE EMPLOYEES ARE UNDER
DIFFERENT PERSONNEL SYSTEMS AND, THEREFORE, HAVE DIFFERENT BENEFITS,
RIGHTS, AND WORKING CONDITIONS WHICH WOULD PRESENT DIFFICULT, IF NOT
INSURMOUNTABLE, OBSTACLES TO THE SUCCESSFUL NEGOTIATION AND
ADMINISTRATION OF A COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE PARTIES,
AND TO INCLUDE THEM WOULD NOT PROMOTE EFFICIENCY OF AGENCY OPERATIONS.
THE ASSISTANT SECRETARY FOUND THAT A UNIT LIMITED TO GENERAL SCHEDULE
EMPLOYEES AS PROPOSED BY THE AFGE WAS NOT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. NOTING THAT SIMILAR ARGUMENTS PERTAINING TO THE
LACK OF COMMON BENEFITS AND CONTROL HAVE PREVIOUSLY BEEN RAISED IN
REPRESENTATION CASES INVOLVING THE ELIGIBILITY OF OFF-DUTY MILITARY
PERSONNEL, THE ASSISTANT SECRETARY REEMPHASIZED THE FACT THAT HE
CONSIDERED AS A DETERMINING FACTOR IN ASCERTAINING THE COMMUNITY OF
INTEREST BETWEEN EMPLOYEES THE IMMEDIATE STATUS OF THE EMPLOYEE WHILE IN
THE EMPLOYMENT RELATIONSHIP AND NOT WHAT ULTIMATE CONTROL HE MIGHT BE
SUBJECT TO AT OTHER TIMES. HE CONSIDERED AS INDICA OF EMPLOYEE
COMMUNITY OF INTEREST UNDER THE ORDER THE INTERCHANGE AND CONTACT AMONG
EMPLOYEES, THE SIMILARITY OF WORK PERFORMED AND COMMON SUPERVISION. HE
NOTED THAT THE LACK OF COMMON BENEFITS, PAY SCALES, AND ULTIMATE CONTROL
WOULD NOT, STANDING ALONE, BE CONSIDERED DISPOSITIVE AS TO COMMUNITY OF
INTEREST. WHILE CONSIDERING THE EXISTENCE OF VARIANCES BETWEEN THE
GENERAL SCHEDULE EMPLOYEES AND THE FOREIGN SERVICE EMPLOYEES IN SUCH
AREAS AS PERSONNEL SYSTEMS, BENEFITS, RIGHTS, PAY SCALES, AND CERTAIN
CONDITIONS OF EMPLOYMENT TO BE FACTORS IN DETERMINING "COMMUNITY OF
INTEREST," HE VIEWED THESE FACTORS AS BEING OFFSET BY THE SUBSTANTIAL
EVIDENCE OF THE CLOSE WORKING RELATIONSHIP BETWEEN THE ACTIVITY'S
EMPLOYEES IN THESE TWO CATEGORIES. IN THIS REGARD, HE NOTED THAT SOME
FOREIGN SERVICE EMPLOYEES OF THE ACTIVITY WORK ALONGSIDE, PERFORM THE
SAME JOB FUNCTIONS, AND HAVE ESSENTIALLY THE SAME JOB CLASSIFICATIONS
AND SUPERVISION AS THE GENERAL SCHEDULE EMPLOYEES IN THE PETITIONED FOR
UNIT. ACCORDINGLY, HE DIRECTED THAT THE AFGE'S PETITION BE DISMISSED.
ACTION
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER LEO GLUNK. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL OF THE
ACTIVITY'S PROFESSIONAL /1/ AND NONPROFESSIONAL EMPLOYEES, BUT EXCLUDING
MANAGEMENT OFFICIALS, SUPERVISORS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, GUARDS AND
FOREIGN SERVICE EMPLOYEES. THE ACTIVITY, IN AGREEMENT WITH THE AFGE,
ASSERTS THAT THE UNIT PETITIONED FOR BY AFGE IS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION. /2/
THE SOLE ISSUE PRESENTED HEREIN IS WHETHER FOREIGN SERVICE PERSONNEL
SHOULD BE INCLUDED WITH THE GENERAL SCHEDULE EMPLOYEES IN THE CLAIMED
UNIT. /3/ THE PARTIES CONTEND THAT COMBINING IN A SINGLE UNIT GENERAL
SCHEDULE AND FOREIGN SERVICE EMPLOYEES WOULD PRESENT DIFFICULT, IF NOT
INSURMOUNTABLE, OBSTACLES TO THE SUCCESSFUL NEGOTIATION AND
ADMINISTRATION OF A COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE PARTIES.
FURTHER, THE PARTIES CONTEND THAT SUCH A COMBINED UNIT OF EMPLOYEES
WOULD NOT PROMOTE EFFICIENCY OF AGENCY OPERATIONS.
THE ACTIVITY WAS CREATED PURSUANT TO THE PRESIDENT'S REORGANIZATION
PLAN NO. 1, EFFECTIVE JULY 1, 1971. UNDER THIS PLAN, VOLUNTEER PROGRAMS
SUCH AS THE PEACE CORPS, SCORE/ACE, VISTA, OLDER AMERICAN PROGRAMS, AND
THE OFFICE OF VOLUNTEER ACTION WERE MERGED INTO WHAT NOW CONSTITUTES
ACTION. /4/
THE ACTIVITY IS HEADED BY A DIRECTOR AND DEPUTY DIRECTOR WHO ARE
RESPONSIBLE FOR THE SUPERVISION AND DIRECTION OF THE VARIOUS VOLUNTEER
PROGRAMS. REPORTING TO THE ABOVE OFFICIALS ARE THE ACTION POLICY BOARD,
THE ACTION NATIONAL ADVISORY COUNCIL, THE DIRECTOR'S PERSONAL STAFF, AND
THE SIX OFFICES OF THE ASSISTANT DIRECTOR; NAMELY, THE OFFICE OF PUBLIC
AFFAIRS, THE OFFICE OF VOLUNTARY ACTION LIAISON, THE OFFICE OF
CONGRESSIONAL LIAISON, THE OFFICE OF GENERAL COUNSEL, THE OFFICE OF
STAFF PLACEMENT AND TRAINING, AND THE OFFICE OF MINORITY AFFAIRS. ALSO
REPORTING TO THE DIRECTOR AND DEPUTY DIRECTOR ARE FIVE ASSOCIATE
DIRECTORS; THE ASSOCIATE DIRECTOR FOR POLICY AND PROGRAM, THE ASSOCIATE
DIRECTOR FOR CITIZENS PLACEMENT, /5/ THE ASSOCIATE DIRECTOR FOR DOMESTIC
OPERATIONS, /6/ THE ASSOCIATE DIRECTOR FOR INTERNATIONAL OPERATIONS, /7/
AND THE ASSOCIATE DIRECTOR FOR ADMINISTRATION AND FINANCE.
THE CLAIMED UNIT CONSISTS OF APPROXIMATELY 264 GENERAL SCHEDULE
EMPLOYEES. IN ADDITION, THE ACTIVITY EMPLOYS APPROXIMATELY 1,033
FOREIGN SERVICE EMPLOYEES, 303 OF WHOM ARE EMPLOYED OVERSEAS. A
MAJORITY OF THE ACTIVITY'S GENERAL SCHEDULE EMPLOYEES ARE EMPLOYED UNDER
THE ASSOCIATE DIRECTOR FOR DOMESTIC OPERATIONS, WHILE THE MAJORITY OF
THE ACTIVITY'S FOREIGN SERVICE EMPLOYEES ARE EMPLOYED UNDER THE
ASSOCIATE DIRECTOR FOR INTERNATIONAL OPERATIONS. AS A RESULT OF THE
ABOVE-NOTED MERGER, VARIOUS SUPPORT FUNCTIONS AT THE ACTIVITY /8/ WERE
STAFFED WITH A MIXTURE OF GENERAL SCHEDULE AND FOREIGN SERVICE
PERSONNEL. IN THIS REGARD, THE RECORD DISCLOSES THAT GENERAL SCHEDULE
EMPLOYEES OF THE ACTIVITY IN SUCH CLASSIFICATIONS AS PERSONNEL
ASSISTANT, REVIEW OFFICER, MANAGEMENT AND RESEARCH ANALYST, MAIL CLERK
AND VOUCHER EXAMINER, WORK ALONGSIDE, PERFORM THE SAME JOB FUNCTIONS,
AND HOLD ESSENTIALLY THE SAME JOB CLASSIFICATIONS AS FOREIGN SERVICE
EMPLOYEES IN THEIR RESPECTIVE DEPARTMENTS. ADDITIONALLY, THE RECORD
REVEALS THAT IN SEVERAL OF THE ACTIVITY'S OFFICES, GENERAL SCHEDULE
EMPLOYEES AND FOREIGN SERVICE EMPLOYEES HAVE COMMON SUPERVISION AND ARE
SUBJECT TO THE SAME DAY-TO-DAY WORKING CONDITIONS.
IN SUPPORT OF THEIR CONTENTION THAT THE GENERAL SCHEDULE EMPLOYEES
HAVE A COMMUNITY OF INTEREST SEPARATE AND APART FROM THAT OF THE FOREIGN
SERVICE EMPLOYEES, THE ACTIVITY AND THE AFGE PLACE PRIMARY EMPHASIS ON
THE FACT THAT GENERAL SCHEDULE AND FOREIGN SERVICE EMPLOYEES ARE
GOVERNED BY DIFFERENT PERSONNEL SYSTEMS AND, THEREFORE, HAVE DIFFERENT
BENEFITS, RIGHTS, PAY SCALES, AND WORKING CONDITIONS. IT SHOULD BE
NOTED THAT SIMILAR ARGUMENTS PERTAINING TO THE LACK OF COMMON BENEFITS,
PAY SCALES, ULTIMATE CONTROL, ETC., HAVE PREVIOUSLY BEEN RAISED IN
REPRESENTATION CASES UNDER THE EXECUTIVE ORDER INVOLVING QUESTIONS
RELATING TO THE ELIGIBILITY OF OFF-DUTY MILITARY PERSONNEL FOR INCLUSION
IN EXCLUSIVE BARGAINING UNITS. /9/ IN THESE CASES I FOUND THAT THE
DETERMINATIVE FACTOR IN ASCERTAINING WHETHER OFF-DUTY MILITARY PERSONNEL
SHOULD BE INCLUDED IN EMPLOYEE BARGAINING UNITS WAS THEIR IMMEDIATE
STATUS WHILE IN THE EMPLOYMENT RELATIONSHIP AND NOT WHAT ULTIMATE
CONTROL THEY MIGHT BE SUBJECT TO AT OTHER TIMES. I FURTHER FOUND THAT
THE FACT THAT OFF-DUTY MILITARY PERSONNEL DID NOT SHARE IN SOME OF THE
FRINGE BENEFITS ENJOYED BY CIVILIAN PERSONNEL OF THE ACTIVITY DID NOT
MINIMIZE THEIR COMMUNITY OF INTEREST WITH THE CIVILIAN EMPLOYEES WHERE
BOTH CATEGORIES SHARED THE SAME EMPLOYMENT RELATIONSHIP WITH THE
ACTIVITY WHILE ON THE JOB. IN SUM, THEREFORE, THE NECESSARY INDICIA OF
EMPLOYEE COMMUNITY OF INTEREST UNDER THE ORDER WILL BE FOUND WHERE THERE
IS INTERCHANGE AND CONTACT AMONG EMPLOYEES, WHERE THERE IS SIMILARITY OF
WORK PERFORMED, AND WHERE THERE IS COMMON SUPERVISION. ON THE OTHER
HAND, STANDING ALONE, THE LACK OF COMMON BENEFITS, PAY SCALES, AND
ULTIMATE CONTROL WILL NOT BE CONSIDERED DISPOSITIVE AS TO THE ISSUE OF
COMMUNITY OF INTEREST.
APPLYING THE FOREGOING RATIONALE TO THE SUBJECT CASE, WHILE THE
EXISTENCE OF VARIANCES BETWEEN THE GENERAL SCHEDULE EMPLOYEES AND THE
FOREIGN SERVICE EMPLOYEES IN SUCH AREAS AS PERSONNEL SYSTEMS, BENEFITS,
RIGHTS, PAY SCALES, AND CERTAIN CONDITIONS OF EMPLOYMENT ARE FACTORS TO
BE CONSIDERED IN THE DETERMINATION OF "COMMUNITY OF INTEREST," IN MY
VIEW, IN THE CIRCUMSTANCES HEREIN THESE FACTORS ARE OFFSET BY THE
SUBSTANTIAL EVIDENCE OF THE CLOSE WORKING RELATIONSHIP BETWEEN THE
ACTIVITY'S EMPLOYEES IN THESE TWO CATEGORIES. /10/ THUS, AS NOTED
ABOVE, THE EVIDENCE ESTABLISHES THAT THERE ARE SOME FOREIGN SERVICE
EMPLOYEES OF THE ACTIVITY WHO WORK ALONGSIDE GENERAL SCHEDULE EMPLOYEES
IN THE CLAIMED UNIT, PERFORMING THE SAME JOB FUNCTIONS. FURTHER, THEY
HAVE ESSENTIALLY THE SAME JOB CLASSIFICATIONS AND SUPERVISIONS AS THE
GENERAL SCHEDULE EMPLOYEES IN THE PETITIONED FOR UNIT. IN THESE
CIRCUMSTANCES, I FIND THAT THE GENERAL SCHEDULE EMPLOYEES IN THE
PETITIONED FOR UNIT DO NOT SHARE A CLEAR AND INDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND APART FROM THE FOREIGN SERVICE EMPLOYEES AT THE
ACTIVITY. FURTHER, IN MY OPINION, SUCH A FRAGMENTED UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL ORDER THAT THE AFGE'S PETITION BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 22-28800(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 26, 1972
/1/ WHILE THE RECORD CONTAINS REFERENCES TO PROFESSIONAL EMPLOYEES,
THE RECORD DOES NOT SET FORTH SUFFICIENT FACTS WITH RESPECT TO THEIR
DUTIES, TRAINING, EDUCATIONAL BACKGROUND, ETC., SO AS TO PROVIDE A BASIS
FOR A FINDING OF FACT THAT EMPLOYEES IN PARTICULAR CLASSIFICATIONS ARE
PROFESSIONALS. ACCORDINGLY, I WILL MAKE NO FINDINGS AS TO WHICH
EMPLOYEE CLASSIFICATIONS HEREIN CONSTITUTE PROFESSIONAL EMPLOYEES WITHIN
THE MEANING OF THE ORDER.
/2/ ON DECEMBER 13, 1971, THE ACTING REGIONAL ADMINISTRATOR REJECTED
THE PARTIES' REQUEST FOR APPROVAL OF A CONSENT ELECTION AGREEMENT WHICH
WOULD HAVE EXCLUDED FOREIGN SERVICE EMPLOYEES FROM THE CLAIMED UNIT
BECAUSE, IN HIS VIEW, THE ELIGIBILITY STATUS OF FOREIGN SERVICE
EMPLOYEES COULD BEST BE RESOLVED ON THE BASIS OF RECORD TESTIMONY.
THUS, A NOTICE OF HEARING WAS ISSUED BY THE ACTING REGIONAL
ADMINISTRATOR ON JANUARY 14, 1972, AND THE HEARING WAS HELD SUBSEQUENTLY
ON FEBRUARY 16 AND 17, 1972.
/3/ THE RECORD REVEALS THAT THE ACTIVITY, BY LETTER, HAD REQUESTED
THE FEDERAL LABOR RELATIONS COUNCIL TO RECOMMEND THAT ACTION FOREIGN
SERVICE EMPLOYEES BE EXEMPTED FROM THE COVERAGE OF EXECUTIVE ORDER
11491, AS AMENDED, AND BE INCLUDED UNDER THE PROPOSED EXECUTIVE ORDER ON
EMPLOYEE-MANAGEMENT RELATIONS IN THE FOREIGN SERVICE. IN DENYING THE
REQUEST IN A LETTER DATED OCTOBER 13, 1971, THE FEDERAL LABOR RELATIONS
COUNCIL STATED, " . . . THE PRESIDENT, BY HIS REORGANIZATION PLAN AND
AND EXECUTIVE ORDER 11603, HAS INDICATED THAT THE PEACE CORPS AND ITS
STAFF MORE PROPERLY FIT INTO A GROUPING OF VOLUNTEER ACTION PROGRAMS
THAN A GROUPING OF FOREIGN AFFAIRS AGENCIES." RELYING ON SUCH FACTORS AS
" . . . THE ABSENCE OF CAREER FOREIGN SERVICE APPOINTMENTS, . . . THE
LIMITED ROTATION OF ASSIGNMENTS BETWEEN THE UNITED STATES AND OVERSEAS,
. . . AND ACTION'S AUTHORITY TO MODIFY FOREIGN SERVICE PERSONNEL
POLICIES OR TO ESTABLISH NEW ONES," THE COUNCIL FOUND THAT THERE EXIST
FUNDAMENTAL DIFFERENCES BETWEEN THE CONDITIONS OF FOREIGN SERVICE
EMPLOYMENT IN THE FOREIGN AFFAIRS AGENCIES AND SUCH EMPLOYMENT IN
ACTION, AND THESE DIFFERENCES RELATE DIRECTLY TO THE BASES ON WHICH THE
PRESIDENT APPROVED THE STATE DEPARTMENT'S REQUEST FOR A SEPARATE
EMPLOYEE-MANAGEMENT RELATIONS PROGRAM SUITED TO THE UNIQUE CONDITIONS OF
FOREIGN SERVICE EMPLOYMENT IN THE FOREIGN AFFAIRS AGENCIES.
/4/ THERE WERE A TOTAL OF FIVE AGENCIES AFFECTED BY THE MERGER;
SMALL BUSINESS ADMINISTRATION; HOUSING AND URBAN DEVELOPMENT; HEALTH,
EDUCATION AND WELFARE; OFFICE OF ECONOMIC OPPORTUNITY; AND PEACE
CORPS.
/5/ THIS OFFICE IS SUBDIVIDED INTO THREE SECTIONS: ASSIGNMENT,
SELECTION AND PROCESSING, AND RECRUITMENT. THE LATTER SECTION CONSISTS
OF THE NATIONAL OFFICE LOCATED IN WASHINGTON, D.C. AND FOUR REGIONAL
OFFICES LOCATED THROUGHOUT THE UNITED STATES.
/6/ THIS OFFICE CONSISTS OF THE NATIONAL OFFICE AND TEN REGIONAL
OFFICES LOCATED THROUGHOUT THE UNITED STATES.
/7/ THIS OFFICE CONSISTS OF THE NATIONAL OFFICE AND FOUR
INTERNATIONAL REGIONAL OFFICES ALL OF WHICH ARE LOCATED IN WASHINGTON,
D.C. ALTHOUGH THE INTERNATIONAL REGIONS ARE LOCATED IN WASHINGTON,
D.C., THE ACTIVITY'S INTERNATIONAL PROGRAMS ARE CARRIED OUT IN 55
COUNTRIES THROUGHOUT THE WORLD.
/8/ E.G., OFFICE OF VOLUNTARY ACTION LIAISON, OFFICE OF STAFF
PLACEMENT AND TRAINING, ASSOCIATE DIRECTOR FOR POLICY AND PROGRAM
DEVELOPMENT, ASSOCIATE DIRECTOR FOR CITIZENS PLACEMENT AND ASSOCIATE
DIRECTOR FOR ADMINISTRATION AND FINANCE.
/9/ SEE DEPARTMENT OF THE NAVY, NAVAL EXCHANGE, MAYPORT, FLORIDA,
A/SLMR NO. 24, AND ARMY AND AIR FORCE EXCHANGE SERVICE, WHITE SANDS
MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE, NEW MEXICO, A/SLMR
NO. 25.
/10/ SEE ALSO DEPARTMENT OF THE ARMY, MILITARY OCEAN TERMINAL,
BAYONNE, NEW JERSEY, A/SLMR NO. 77, WHERE I CONSIDERED THE VARIANCE IN
WORK PERFORMED BY WAGE BOARD AND GENERAL SCHEDULE EMPLOYEES AS A FACTOR
IN THE DETERMINATION OF COMMUNITY OF INTEREST BUT FOUND THIS FACTOR
OFFSET BY THE CLOSE RELATIONSHIP OF THESE TWO GROUPS AS SHOWN THROUGH
DAILY CONTACT, COMMON SUPERVISION, UNIFORM PERSONNEL POLCIIES AND
PRACTICES, AND OVERLAPPING OF JOB FUNCTIONS.
2 A/SLMR 206; P. 486; CASES NO. 40-3045(RO); 40-3064(RO);
40-3137(RO); 40-3492(RO); 40-3503(RO); SEPTEMBER 26, 1972.
DEPARTMENT OF THE ARMY,
U.S. ARMY ENGINEER DISTRICT,
MOBILE, ALABAMA
A/SLMR NO. 206
THIS CASE AROSE AS A RESULT OF REPRESENTATION PETITIONS FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCALS 561 AND 131, (NFFE),
AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2257,
AFL-CIO, (AFGE). THE NATIONAL MARITIME UNION OF AMERICA, AFL-CIO,
(NMU), AND AFGE LOCALS 2257 AND 2421, INTERVENED IN THE PETITIONS FILED
BY THE NFFE. NFFE LOCAL 561 INTERVENED IN THE PETITION FILED BY THE
AFGE.
NFFE LOCALS 561 AND 131 REQUESTED A UNIT OF ALL NONSUPERVISORY,
NONPROFESSIONAL EMPLOYEES OF THE U.S. ARMY ENGINEER DISTRICT, MOBILE,
ALABAMA, DISTRICT-WIDE. IN ADDITION, NFFE LOCAL 561 REPRESENTED A UNIT
OF ALL NONSUPERVISORY, NONPROFESSIONAL FLOATING PLANT EMPLOYEES AND A
UNIT OF ALL NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF THE RECREATION
RESOURCE MANAGEMENT BRANCH OF THE MOBILE DISTRICT. THE AFGE REQUESTED A
UNIT OF ALL NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF THE RESOURCE
MANAGER'S OFFICE, LAKE SEMINOLE, FLORIDA AND GEORGIA AND A UNIT OF ALL
NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF THE HYDRO-POWER BRANCH OF
THE MOBILE DISTRICT.
THE ACTIVITY TOOK THE POSITION THAT MULTIPLE UNITS WITHIN THE MOBILE
DISTRICT, AS WELL AS A DISTRICT-WIDE UNIT, WOULD BE APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION.
THE ASSISTANT SECRETARY CONCLUDED THAT NFFE LOCAL 561'S PETITION, AS
AMENDED, COVERING THE MOBILE DISTRICT'S FLOATING PLANT EMPLOYEES, WAS
NOT FILED TIMELY WITHIN THE 90-60 DAY OPEN PERIOD PRIOR TO THE
EXPIRATION DATE OF A NEGOTIATED AGREEMENT BETWEEN THE ACTIVITY AND THE
NMU COVERING SUCH EMPLOYEES. ACCORDINGLY, THE ASSISTANT SECRETARY
DISMISSED THE PETITION. THE ASSISTANT SECRETARY ALSO FOUND THAT AFGE
LOCALS 2257 AND 2421'S PRIOR NEGOTIATED AGREEMENTS POSED NO BAR TO THE
NFFE'S DISTRICT-WIDE PETITION IN THAT THEY HAD EXPIRED AND WERE UNDER
RENEGOTIATION AT THE TIME THE DISTRICT-WIDE PETITION WAS FILED. WITH
RESPECT TO AN ALLEGED CERTIFICATION BAR AS TO THE DISTRICT-WIDE
PETITION, THE ASSISTANT SECRETARY FOUND THAT THE AFGE HAD VOLUNTARILY
WAIVED ITS CERTIFICATION BAR WITH RESPECT TO THE MILLERS FERRY
POWERHOUSE UNIT WHEN IT FILED A PETITION FOR A UNIT ENCOMPASSING ALL
FIELD OFFICES OF THE HYDRO-POWER BRANCH (WHICH INCLUDED EMPLOYEES OF THE
MILLERS FERRY POWERHOUSE).
UNDER ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
UNIT PETITIONED FOR BY NFFE LOCALS 561 AND 131 WHICH COVERED ALL
NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES IN THE MOBILE DISTRICT WAS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION INASMUCH AS THERE
WAS SUBSTANTIAL INTEGRATION OF OPERATIONS WITHIN THE MOBILE DISTRICT;
THE SUPERVISORY AUTHORITY AND LOCUS OF NEGOTIATION AUTHORITY WAS
CENTERED IN THE OFFICE OF THE DISTRICT ENGINEER; A CENTRAL PERSONNEL
OFFICE ADMINISTERED UNIFORM POLICIES AND PROGRAMS FOR THE ENTIRE
DISTRICT; THE AREA OF CONSIDERATION FOR COMPETITIVE JOB BIDDING AND
REDUCTIONS-IN-FORCE WAS DISTRICT-WIDE; AND THERE WAS EVIDENCE OF
TRANSFERS DISTRICT-WIDE.
THE ASSISTANT SECRETARY ALSO FOUND THAT A UNIT OF ALL NONSUPERVISORY,
NONPROFESSIONAL EMPLOYEES OF THE RECREATION RESOURCE MANAGEMENT BRANCH,
AS REQUESTED BY NFFE LOCAL 561, AND A UNIT OF ALL NONSUPERVISORY,
NONPROFESSIONAL EMPLOYEES OF THE RESOURCE MANAGER'S OFFICE, LAKE
SEMINOLE, FLORIDA AND GEORGIA, AS REQUESTED BY AFGE LOCAL 2257, WERE
INAPPROPRIATE AS SUCH UNITS WOULD EXCLUDE OTHER EMPLOYEES WITHIN THE
DISTRICT WHO HAD A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH
EMPLOYEES IN THESE PETITIONED FOR UNITS. ACCORDINGLY, THE ASSISTANT
SECRETARY ORDERED THAT THESE PETITIONS BE DISMISSED.
ADDITIONALLY, THE ASSISTANT SECRETARY FOUND THAT THE UNIT OF ALL
NONSUPERVISORY EMPLOYEES OF THE HYDRO-POWER BRANCH FIELD OFFICES, AS
PETITIONED FOR BY AFGE LOCAL 2257, WAS AN APPROPRIATE UNIT FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION IN THAT THE MAJORITY OF THE JOB
CLASSIFICATIONS FOUND IN THIS UNIT WERE UNIQUE; SKILLED POWERHOUSE
EMPLOYEES HAD THEIR OWN EXTENSIVE FOUR-YEAR TRAINING PROGRAM; AND
TRANSFERS OF POWERHOUSE EMPLOYEES HAD BEEN RESTRICTED LARGELY TO
WITHIN-BRANCH PERSONNEL ACTIONS. ACCORDINGLY, HE DIRECTED THAT THE
EMPLOYEES IN THE CLAIMED UNIT BE GIVEN THE OPPORTUNITY TO VOTE FOR THE
LABOR ORGANIZATION SEEKING TO REPRESENT THEM SEPARATELY.
FURTHER, IN VIEW OF HIS POLICY AS SET FORTH IN FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, A/SLMR NO. 122, THAT
EMPLOYEES IN EXCLUSIVELY RECOGNIZED UNITS WHERE THE EVIDENCE ESTABLISHES
THE EXISTENCE OF A COLLECTIVE-BARGAINING HISTORY SHOULD HAVE THE
OPPORTUNITY TO VOTE IN SELF-DETERMINATION ELECTIONS, THE ASSISTANT
SECRETARY DIRECTED THAT EMPLOYEES IN THE FOLLOWING BARGAINING UNITS BE
GIVEN THE OPPORTUNITY TO VOTE IN SELF-DETERMINATION ELECTIONS: (A)
EMPLOYEES OF THE MOBILE DISTRICT'S FLOATING PLANTS FORMERLY COVERED BY A
RECENTLY EXPIRED COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE NMU AND THE
ACTIVITY; (B) EMPLOYEES OF THE JIM WOODRUFF AND COLUMBIA LOCKS FORMERLY
COVERED BY A RECENTLY EXPIRED COLLECTIVE-BARGAINING AGREEMENT BETWEEN
AFGE LOCAL 2257 AND THE ACTIVITY; AND (C) EMPLOYEES OF THE WALTER F.
GEORGE-COLUMBIA LAKE FORMERLY COVERED BY A RECENTLY EXPIRED
COLLECTIVE-BARGAINING AGREEMENT BETWEEN AFGE LOCAL 2421 AND THE
ACTIVITY.
THUS, THE ASSISTANT SECRETARY DIRECTED ELECTIONS IN THE DISTRICT-WIDE
UNIT AND IN SEVERAL UNITS WITHIN THE DISTRICT. HE NOTED THAT IF A
MAJORITY OF THE EMPLOYEES VOTING IN ANY OF THE SELF-DETERMINATION
ELECTIONS DID NOT SELECT THE LABOR ORGANIZATION SEEKING TO REPRESENT
THEIR GROUP SEPARATELY OR THE INCUMBENT EXCLUSIVE REPRESENTATIVE, THEIR
VOTES WOULD BE POOLED WITH THE BALLOTS OF THE EMPLOYEES VOTING IN THE
DISTRICT-WIDE ELECTION.
DEPARTMENT OF THE ARMY,
U.S. ARMY ENGINEER DISTRICT,
MOBILE, ALABAMA /1/
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 561
AND
NATIONAL MARITIME UNION OF AMERICA,
AFL-CIO /2/
DEPARTMENT OF THE ARMY,
U.S. ARMY ENGINEER DISTRICT,
MOBILE, ALABAMA
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 561
DEPARTMENT OF THE ARMY,
U.S. ARMY ENGINEER DISTRICT,
MOBILE, ALABAMA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2257, AFL-CIO /3/
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 561
DEPARTMENT OF THE ARMY,
U.S. ARMY ENGINEER DISTRICT,
MOBILE, ALABAMA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2257, AFL-CIO
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 561
DEPARTMENT OF THE ARMY,
U.S. ARMY ENGINEER DISTRICT,
MOBILE, ALABAMA
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCALS 561 AND 131
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCALS 2257 AND 2451,
AFL-CIO
AND
NATIONAL MARITIME UNION OF AMERICA,
AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER RENEE B. RUX. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING BRIEFS FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCALS 561 AND 131, HEREIN
CALLED NFFE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCALS
2257 AND 2421, AFL-CIO HEREIN CALLED AFGE, AND THE NATIONAL MARITIME
UNION OF NORTH AMERICA, AFL-CIO, HEREIN CALLED NMU, THE ASSISTANT
SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 40-3045(RO) PETITIONER, NFFE LOCAL 561, SEEKS AN
ELECTION IN A UNIT OF ALL FLOATING PLANT EMPLOYEES UNDER THE SUPERVISION
OF THE U.S. ARMY ENGINEER DISTRICT, MOBILE, ALABAMA, EXCLUDING ALL
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE EXECUTIVE ORDER. /4/ THE NMU,
WHICH INTERVENED IN THIS CASE, ASSERTS THAT THE NFFE'S PETITION WAS
BARRED BY A NEGOTIATED AGREEMENT.
IN CASE NO. 40-3064(RO) PETITIONER, NFFE LOCAL 561 SEEKS AN ELECTION
IN A UNIT OF ALL EMPLOYEES UNDER THE SUPERVISION OF THE RECREATION
RESOURCE MANAGEMENT BRANCH OF THE U.S. ARMY ENGINEER DISTRICT, MOBILE,
ALABAMA, EXCLUDING ALL PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
EXECUTIVE ORDER. /5/
IN CASE NO. 40-3137(RO) PETITIONER, AFGE LOCAL 2257 SEEKS AN ELECTION
IN A UNIT OF ALL EMPLOYEES OF THE RESOURCE MANAGER'S OFFICE, CORPS OF
ENGINEERS, LAKE SEMINOLE, FLORIDA AND GEORGIA, EXCLUDING ALL
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN EXECUTIVE ORDER 11491. /6/
IN CASE NO. 40-3492(RO) PETITIONER, AFGE LOCAL 2257 SEEKS AN ELECTION
IN A UNIT OF ALL EMPLOYEES OF THE HYDRO-POWER BRANCH FIELD OFFICES UNDER
THE OPERATIONS DIVISION OF THE U.S. ARMY ENGINEER DISTRICT, MOBILE,
EXCLUDING ALL PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN EXECUTIVE ORDER
11491. /7/
IN CASE NO. 40-3503(RO) JOINT PETITIONERS, NFFE LOCALS 561 AND 131
SEEK AN ELECTION IN A UNIT OF ALL EMPLOYEES OF THE U.S. ARMY ENGINEER
DISTRICT, MOBILE, ALABAMA, DISTRICT-WIDE, EXCLUDING ALL PROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND
GUARDS AS DEFINED IN EXECUTIVE ORDER 11491. /8/ AFGE LOCALS 2257 AND
2421 ALLEGE AGREEMENT, CERTIFICATION AND HEARING BARS WITH REGARD TO THE
NFFE'S DISTRICT-WIDE PETITION.
THE ACTIVITY TAKES THE POSITION THAT EITHER MULTIPLE UNITS WITHIN THE
MOBILE DISTRICT, OR A DISTRICT-WIDE UNIT, WOULD BE APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION.
THE MISSION OF THE U.S. ARMY ENGINEER DISTRICT, MOBILE, IS TO
CONSTRUCT, OPERATE AND MAINTAIN PUBLIC WORKS PROJECTS AND SUPERVISE ALL
RIVER AND HARBOR FLOOD CONTROL WITHIN A GEOGRAPHICAL AREA UNDER THE
DISTRICT'S JURISDICTION. THE DISTRICT ALSO IS IN CHARGE OF REAL ESTATE
TRANSACTIONS AND THE DESIGN AND CONSTRUCTION OF BUILDINGS FOR THE ARMY,
AIR FORCE AND POSTAL SERVICE WITHIN A SPECIFIC REGION.
THE DISTRICT OFFICE, UNDER THE OVERALL SUPERVISION OF THE DISTRICT
ENGINEER, IS SUBDIVIDED INTO THE ADVISORY AND ADMINISTRATIVE STAFF /9/
AND THE TECHNICAL STAFF. THE TECHNICAL STAFF IS SUBDIVIDED INTO FIVE
DIVISIONS; THE REAL ESTATE DIVISION, WHICH ACQUIRES AND DISPOSES OF
LAND FOR CIVILIAN AND MILITARY USE; THE ENGINEERING DIVISION, WHICH IS
RESPONSIBLE FOR THE CONCEPTION OF PROJECTS AND THE GENERAL PLANNING,
SPECIFICATIONS AND DETERMINATION OF THE ECONOMIC FEASIBILITY OF THESE
PROJECTS; THE SUPPLY DIVISION, WHICH IS CONCERNED WITH THE PROCUREMENT
AND STORAGE OF ITEMS THAT ARE NEEDED BY OTHER DIVISIONS WITHIN THE
DISTRICT; THE CONSTRUCTION DIVISION, WHICH SUPERVISES AND ADMINISTERS
CONSTRUCTION CONTRACTS; AND THE OPERATIONS DIVISION, WHICH IS
RESPONSIBLE FOR THE OPERATION AND MAINTENANCE OF PERMANENTLY INSTALLED
CIVIL WORKS. UNDER THE ADMINISTRATIVE SUPERVISION OF THE OPERATIONS
DIVISION, THE HYDRO-POWER BRANCH MANAGES AND DIRECTS THE ACTIVITIES OF
ALL POWER PLANTS; THE RECREATION RESOURCE MANAGEMENT BRANCH OPERATES
AND MAINTAINS LAKE PROJECTS AND THE FACILITIES PROVIDED FOR PUBLIC
RECREATIONAL USE; AND THE PROJECT OPERATIONS BRANCH SUPERVISES THE
OPERATION AND MAINTENANCE OF THE LOCKS AND DAMS OF THE TUSCALOOSA,
MOBILE, AND PANAMA CITY AREA OFFICES. THE FLOATING PLANTS, WHICH ARE
UNDER THE JURISDICTION OF THE AREA OFFICES, CONSIST, IN PART, OF DREDGES
AND SNAG BOATS, WHICH REMOVE ALL OBSTRUCTIONS TO NAVIGATION ON THE
RIVERS WITHIN THE DISTRICT.
AS NOTED ABOVE, IN CASE NO. 40-3045(RO), NFFE LOCAL 561 SEEKS AN
ELECTION IN A UNIT CONSISTING OF ALL NONSUPERVISORY, NONPROFESSIONAL
FLOATING PLANT EMPLOYEES UNDER THE SUPERVISION OF THE U.S. ARMY ENGINEER
DISTRICT, MOBILE, ALABAMA. THE PETITION, AS AMENDED, WOULD INCLUDE THE
EMPLOYEES OF THE TUSCALOOSA, MOBILE, AND PANAMA CITY FLOATING PLANTS.
THE EVIDENCE ESTABLISHES THAT THE NMU HAS BEEN THE EXCLUSIVE
REPRESENTATIVE OF THESE EMPLOYEES SINCE DECEMBER 5, 1963. ITS MOST
RECENT NEGOTIATED AGREEMENT WITH THE ACTIVITY COVERING THIS UNIT HAD AN
EXPIRATION DATE OF JULY 15, 1971. AT THE COMMENCEMENT OF THE HEARING,
THE NMU MOVED TO DISMISS THE NFFE'S PETITION IN THIS CASE ON THE GROUN
THAT IT WAS FILED UNTIMELY UNDER SECTION 202.3(C) OF THE ASSISTANT
SECRETARY'S REGULATIONS. /10/
THE RECORD REVEALS THAT WHILE THE NFFE'S INITIAL PETITION IN CASE NO.
40-3045(RO) WHICH SOUGHT NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF
THE ACTIVITY'S FLOATING PLANTS AT MOBILE, ALABAMA, AND PANAMA CITY,
FLORIDA, WAS FILED TIMELY, ITS SUBSEQUENT AMENDMENT OF THE PETITION
ADDING TO THE CLAIMED UNIT SIMILAR EMPLOYEES OF THE ACTIVITY'S FLOATING
PLANTS AT TUSCALOOSA, ALABAMA, OCCURRED WITHIN THE 60-DAY PERIOD
PRECEDING THE TERMINATION DATE OF THE EXISTING NEGOTIATED AGREEMENT
BETWEEN THE ACTIVITY AND THE NMU. UNDER THESE CIRCUMSTANCES, I FIND
THAT THE NFFE'S PETITION, AS AMENDED, IN CASE NO. 40-3045(RO) WAS FILED
UNTIMELY WITHIN THE MEANING OF SECTION 202.3(C) OF THE ASSISTANT
SECRETARY'S REGULATIONS. ACCORDINGLY, THE NMU'S MOTION IN THIS REGARD
IS AFFIRMED AND I SHALL ORDER THAT THE PETITION IN CASE NO. 40-3045(RO)
BE DISMISSED.
AFGE LOCALS 2257 AND 2421 CONTEND THAT THEIR NEGOTIATED AGREEMENTS
WITH THE ACTIVITY COVERING THEIR RESPECTIVE EXCLUSIVELY RECOGNIZED UNITS
WITHIN THE MOBILE DISTRICT EFFECTIVELY BAR THE NFFE'S PETITION FOR A
DISTRICT-WIDE UNIT IN CASE NO. 40-3503(RO) WHICH WAS FILED ON NOVEMBER
22, 1971. IN THIS CONNECTION, THE RECORD REVEALS THAT AFGE LOCAL 2257
HAS BEEN THE EXCLUSIVELY REPRESENTATIVE OF EMPLOYEES AT THE JIM WOODRUFF
AND WALTER F. GEORGE POWERHOUSES AND THE JIM WOODRUFF AND COLUMBIA LOCKS
SINCE NOVEMBER 12, 1963. ITS NEGOTIATED AGREEMENT WITH THE ACTIVITY
COVERING THIS UNIT HAD EXPIRED AND WAS UNDER RENEGOTIATION AT THE TIME
THE NFFE FILED ITS DISTRICT-WIDE PETITION. THE RECORD FURTHER
ESTABLISHES THAT AFGE LOCAL 2421 HAS BEEN THE EXCLUSIVE REPRESENTATIVE
OF EMPLOYEES AT THE WALTER F. GEORGE-COLUMBIA LAKE RESERVOIR SINCE MARCH
31, 1967. SIMILARLY, ITS NEGOTIATED AGREEMENT WITH THE ACTIVITY
COVERING THIS UNIT HAD EXPIRED AND WAS UNDER RENEGOTIATION AT THE TIME
THE NFFE'S DISTRICT-WIDE PETITION WAS FILED. AS IT APPEARS THAT NEITHER
OF THE ABOVE UNITS WAS COVERED BY A NEGOTIATED AGREEMENT AT THE TIME THE
PETITION IN CASE NO. 40-3503(RO) WAS FILED, I FIND THAT NO AGREEMENT
BAR EXISTS AS TO SUCH PETITION.
AFGE LOCAL 2257 FURTHER CONTENDS THAT ITS CERTIFICATION OF FEBRUARY
22, 1971, AS THE EXCLUSIVE REPRESENTATIVE OF ALL EMPLOYEES OF THE
MILLERS FERRY POWERHOUSE EFFECTIVELY BARS INCLUSION OF THIS POWERHOUSE
IN THE DISTRICT-WIDE UNIT PETITIONED FOR BY NFFE ON NOVEMBER 22, 1971.
I HAVE STATED PREVIOUSLY /11/ THAT THE TWELVE-MONTH CERTIFICATION BAR
ESTABLISHED UNDER SECTION 202.3(B) OF THE ASSISTANT SECRETARY'S
REGULATIONS /12/ WAS DESIGNED TO AFFORD AN AGENCY OR ACTIVITY AND A
CERTIFIED INCUMBENT LABOR ORGANIZATION A REASONABLE PERIOD OF TIME IN
WHICH TO INITIATE AND DEVELOP THEIR BARGAINING RELATIONSHIP FREE OF
RIVAL CLAIMS. HOWEVER, WHERE, AS HERE, A CERTIFIED LABOR ORGANIZATION
FILES A PETITION DURING THE CERTIFICATION YEAR, ENCOMPASSING ITS
CERTIFIED UNIT, I FIND THAT IT HAS EVIDENCED AN INTENT TO WAIVE THE
CERTIFICATION BAR PERIOD IN AN ATTEMPT TO GAIN EXCLUSIVE RECOGNITION IN
A BROADER UNIT. /13/ THUS, BY FILING A PETITION ON NOVEMBER 11, 1971 IN
CASE NO. 40-3492(RO) FOR A UNIT OF ALL NONSUPERVISORY EMPLOYEES OF THE
ACTIVITY'S HYDRO-POWER BRANCH FIELD OFFICES WHICH WOULD INCLUDE THE
CERTIFIED UNIT AT MILLERS FERRY POWERHOUSE. I FIND THAT THE AFGE, IN
EFFECT, WAIVED ITS CERTIFICATION BAR WITH RESPECT TO THE MILLERS FERRY
POWERHOUSE UNIT. /14/ UNDER THE FOREGOING CIRCUMSTANCES, I REJECT THE
AFGE LOCAL 2257'S CONTENTION REGARDING THE UNTIMELINESS OF THE NFFE'S
PETITION IN CASE NO. 40-3503(RO) WITH RESPECT TO THE MILLERS FERRY
POWERHOUSE UNIT.
THE MOBILE DISTRICT EMPLOYS APPROXIMATELY 1,450 WAGE BOARD AND
GENERAL SCHEDULE EMPLOYEES, OF WHOM 700 ARE STATIONED IN THE DISTRICT
OFFICE IN MOBILE, ALABAMA AND 750 ARE ASSIGNED TO THE FIELD.
APPROXIMATELY 300 OF THE DISTRICT'S EMPLOYEES ARE PROFESSIONALS, 260 ARE
SUPERVISORS AND MANAGEMENT OFFICIALS, AND 84 ARE CLASSIFIED AS
TEMPORARY. /15/
SUPERVISORY AUTHORITY IN THE MOBILE DISTRICT IS CENTERED IN THE
OFFICE OF THE DISTRICT ENGINEER. WHILE THE VARIOUS CHIEFS OF DIFFERENT
BRANCHES AND DIVISIONS HAVE LIMITED AUTHORITY OVER ASSIGNMENTS, ANNUAL
LEAVE, PERFORMANCE EVALUATION, AND THE DISCIPLINE OF THEIR EMPLOYEES,
FINAL AUTHORITY FOR THE ADMINISTRATION AND OPERATION OF THE DISTRICT
RESTS WITH THE DISTRICT ENGINEER. FURTHERMORE, ALTHOUGH LABOR RELATIONS
NEGOTIATIONS MAY OCCUR AT LOWER MANAGEMENT LEVELS, THE DISTRICT ENGINEER
POSSESSES THE FINAL AUTHORITY TO APPROVE ANY NEGOTIATED AGREEMENTS.
THE EVIDENCE ESTABLISHES THAT THE DEVELOPMENT OF CONSTRUCTION
PROJECTS WITHIN THE MOBILE DISTRICT REQUIRES A SUBSTANTIAL INTEGRATION
OF OPERATIONS AND INTERCHANGE OF PERSONNEL THROUGHOUT THE DIVISIONS AND
BRANCHES OF THE TECHNICAL STAFF. THUS, THE ENGINEERING DIVISION'S
PLANNING AND REPORTS, SURVEY, DESIGN, AND FOUNDATION AND MATERIALS
BRANCHES COMPLETE A COST-BENEFIT ANALYSIS AND THE INITIAL PLANNING OF
EACH PROJECT. THEREAFTER, CONSTRUCTION IS CONDUCTED UNDER THE
SUPERVISION OF THE CONSTRUCTION DIVISION, WITH TECHNICAL ASSISTANCE FROM
THE DESIGN BRANCH OF THE ENGINEERING DIVISION. THE OPERATIONS
DIVISION'S VARIOUS BRANCHES ASSUME JURISDICTION OVER THE COMPLETED
PROJECT.
THE RECORD REVEALS THAT FROM 1970 TO 1972 THERE WAS A SUBSTANTIAL
NUMBER OF PERSONNEL TRANSFERS AMONG DIVISIONS AND THEIR RESPECTIVE
BRANCHES, WITH THE EXCEPTION OF THE HYDRO-POWER BRANCH AND THE FLOATING
PLANTS. FURTHER, EMPLOYEES FROM OUTSIDE THE OPERATIONS DIVISION HAVE
EXERCISED BUMPING RIGHTS INTO THAT DIVISION. CONSIDERATION FOR
COMPETITIVE JOB BIDDING, MERIT PROMOTIONS, AND REDUCTIONS-IN-FORCE ARE
DETERMINED ON A DISTRICT-WIDE BASIS.
THE RECORD DISCLOSES THAT THE DISTRICT ENGINEER HAS DELEGATED
AUTHORITY TO THE PERSONNEL OFFICE FOR THE ADMINISTRATION OF A
CENTRALIZED CIVILIAN PERSONNEL PROGRAM THROUGHOUT THE MOBILE DISTRICT.
THUS, THE PERSONNEL RECORDS OF ALL DISTRICT EMPLOYEES ARE KEPT IN THE
PERSONNEL OFFICE IN MOBILE AND THE PERSONNEL OFFICER HAS THE AUTHORITY
TO HIRE, PROMOTE, REASSIGN AND DISCIPLINE ALL EMPLOYEES AND RECOMMEND
REDUCTIONS-IN-FORCE, IF NECESSARY. ONLY ADVERSE ACTIONS NECESSITATE
REVIEW AND APPROVAL BY THE DISTRICT ENGINEER. THE RECORD REVEALS
FURTHER THAT EMPLOYEE GRIEVANCES USUALLY ARE DIRECTED TO THE CENTRAL
PERSONNEL OFFICE AND THEREAFTER ARE REFERRED TO THE APPROPRIATE AREA
OFFICE FOR PROCESSING.
THE MOBILE DISTRICT EMPLOYS PERSONNEL IN A WIDE RANGE OF JOB
CLASSIFICATIONS. THE RECORD REVEALS THAT MANY OF THESE JOB
CLASSIFICATIONS ARE COMMON TO SEVERAL BRANCHES OR DIVISIONS WITHIN THE
DISTRICT. THUS, CIVIL ENGINEERING TECHNICIANS, ENGINEERING EQUIPMENT
OPERATORS, MAINTENANCE WORKERS, CRANE OPERATORS, MOTOR VEHICLE
OPERATORS, LAUNCH OPERATORS, LABORERS, JOB CLASSIFICATIONS COMMON TO THE
OPERATIONS DIVISION'S RECREATION RESOURCE MANAGEMENT BRANCH, AS WELL AS
OTHER BRANCHES OF THE OPERATIONS, ENGINEERING AND CONSTRUCTION
DIVISIONS.
ON THE OTHER HAND, IT APPEARS THAT SUCH JOB CLASSIFICATIONS AS POWER
PLANT SENIOR MECHANIC, ELECTRICIAN, SHIFT OPERATOR, AND COMMUNICATIONS
TECHNICIAN ARE UNIQUE TO THE HYDRO-POWER BRANCH OF THE OPERATIONS
DIVISION. FURTHER, THE SKILLED POWERHOUSE EMPLOYEES IN THIS BRANCH
UNDERGO AN EXTENSIVE FOUR-YEAR TRAINING PROGRAM OPERATED ON A SOUTH
ATLANTIC DIVISION-WIDE BASIS BEFORE THEY ARE ASSIGNED PERMANENTLY TO THE
MOBILE DISTRICT. /16/ THE RECORD REVEALS THAT POWERHOUSE TRAINEES ARE
HIRED NORMALLY AT A CENTRAL LOCATION AND THEN ASSIGNED TO A DISTRICT
POWERHOUSE WHERE THEY ARE NEEDED. THE EVIDENCE ESTABLISHES FURTHER THAT
WAGE BOARD POWERHOUSE EMPLOYEES ARE PAID BY JOB TITLE ACCORDING TO
SPECIAL "SOUTHEAST POWER RATE SCHEDULE" FOR THE SOUTH ATLANTIC DIVISION.
THIS PAYMENT PLAN DIFFERS FROM THAT UTILIZED WITH RESPECT TO THE
MAJORITY OF THE DISTRICT'S OTHER WAGE BOARD EMPLOYEES WHOSE PAY
SCHEDULES HAVE BEEN ESTABLISHED BASED ON COMPARATIVE WAGE LEVELS IN
SPECIFIED GEOGRAPHICAL AREAS. /17/ THE EVIDENCE ALSO SHOWS THAT THERE
HAS BEEN MINIMAL TRANSFER INTO OR OUT OF THE HYDRO-POWER BRANCH BY OTHER
DISTRICT EMPLOYEES WITHIN THE PAST TWO YEARS.
REGARDING THE FLOATING PLANTS, THE RECORD REVEALS THAT THERE ARE TWO
DREDGES, TWO SNAG BOATS AND THREE SURVEY BOATS ATTACHED TO THE AREA
OFFICE OF THE OPERATIONS DIVISION. A DREDGE'S FUNCTION IS TO REMOVE
OBSTRUCTIONS AND DIRECT THE DREDGE TO THE AREA. EMPLOYEES ON DREDGES
WORK EIGHT-HOUR SHIFTS AND LIVE ON-BOARD BECAUSE OF THE REMOTENESS OF
THEIR OPERATION'S LOCATION. SNAG BOATS, WHICH CLEAR LOCKS AND WATERWAYS
OF DEBRIS, ARE IN OPERATION EIGHT HOURS A DAY, FIVE DAYS A WEEK. WHILE
EMPLOYEES HAVE BEEN TRANSFERRED AMONG THE FLOATING PLANTS DURING THE
PAST TWO YEARS, THERE APPEAR TO HAVE BEEN NO TRANSFERS INTO OR OUT OF
THE FLOATING PLANTS OPERATIONS BY OTHER DISTRICT EMPLOYEES DURING THIS
PERIOD.
WITH RESPECT TO FLOATING PLANT EMPLOYEES ATTACHED TO THE TUSCALOOSA
AREA OFFICE, THE RECORD REVEALS A SIGNIFICANT DEGREE OF INTEGRATION OF
OPERATIONS BETWEEN THESE EMPLOYEES AND THE MACHINE SHOP AND BOATYARD
EMPLOYEES LOCATED AT TUSCALOOSA. THUS, FROM DECEMBER UNTIL APRIL OR MAY
OF EVERY YEAR, THE FLOATING PLANTS OF THIS AREA OFFICE UNDERGO REPAIR IN
ITS MACHINE SHOPS AND BOATYARD. DURING THIS PERIOD, THE FLOATING PLANT
EMPLOYEES ARE ASSIGNED WORK IN THE MACHINE SHOP UNDER THE SUPERVISION OF
THE GENERAL FOREMAN. THE RECORD DISCLOSES THAT APPROXIMATELY 75 PERCENT
OF THE FLOATING PLANTS' DECK-HANDS ARE ASSIGNED AS HELPERS IN THE
MACHINE SHOP AND THAT THE LEVERMEN WHO NORMALLY OPERATE THE CUTTER ON
THE DREDGES BECOME WELDERS. THUS, IT APPEARS THAT FOR ALMOST ONE-HALF
OF EVERY YEAR, FLOATING PLANT EMPLOYEES WORK ALONGSIDE AND UNDER THE
DIRECTION OF MACHINE SHOP EMPLOYEES. MOREOVER, ON-SITE REPAIRS ON
OPERATING FLOATING PLANTS OFTEN CONSTITUTE A JOINT OPERATION CONDUCTED
BY A MACHINE SHOP EMPLOYEE ASSISTED BY A FLOATING PLANT CREW.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT THE
NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES IN THE MOBILE DISTRICT, AS
PETITIONED FOR BY THE NFFE IN CASE NO. 40-3503(RO), SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST AND THAT SUCH A COMPREHENSIVE UNIT
WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THUS, AS NOTED ABOVE, THE EVIDENCE ESTABLISHES THAT THERE IS SUBSTANTIAL
INTEGRATION OF OPERATIONS WITHIN THE MOBILE DISTRICT; SUPERVISORY
AUTHORITY, AS WELL AS THE LOCUS OF NEGOTIATION AUTHORITY, IS CENTERED IN
THE OFFICE OF THE DISTRICT ENGINEER; THERE IS A CENTRAL PERSONNEL
OFFICE WHICH ADMINISTERS UNIFORM POLICIES AND PROGRAMS FOR THE ENTIRE
DISTRICT; THE AREA OF CONSIDERATION FOR COMPETITIVE JOB BIDDING AND
REDUCTIONS-IN-FORCE IS DISTRICT-WIDE; AND WITHIN THE DISTRICT THERE IS
EVIDENCE OF EMPLOYEE TRANSFERS. I FIND, THEREFORE, THAT THE CLAIMED
UNIT IN CASE NO. 40-3503(RO) IS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION AND, THEREFORE, I SHALL DIRECT AN ELECTION IN SUCH
UNIT.
UNDER THE FOREGOING CIRCUMSTANCES, AND NOTING PARTICULARLY THE
EXISTENCE OF PERSONNEL IN SIMILAR JOB CLASSIFICATIONS WITHIN THE MOBILE
DISTRICT OUTSIDE THE CLAIMED UNITS, THE EVIDENCE OF TRANSFER OF
EMPLOYEES ON A DISTRICT-WIDE BASIS (WITH THE EXCEPTION OF THOSE IN THE
HYDRO-POWER BRANCH AND THOSE WORKING ON FLOATING PLANTS), AND THE
CENTRAL ADMINISTRATION OF ALL DISTRICT PERSONNEL POLICIES AND PRACTICES,
I FIND THAT A UNIT OF ALL NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF
THE RECREATION RESOURCE MANAGEMENT BRANCH, AS REQUESTED BY NFFE LOCAL
561 IN CASE NO. 40-3064(RO), OR A UNIT OF ALL NON-SUPERVISORY,
NONPROFESSIONAL EMPLOYEES OF THE RESOURCE MANAGER'S OFFICE, LAKE
SEMINOLE, FLORIDA AND GEORGIA AS REQUESTED BY AFGE LOCAL 2257 IN CASE
NO. 40-3137(RO), WOULD BE INAPPROPRIATE. IN MY OPINION, THE
AFOREMENTIONED UNITS WOULD EXCLUDE OTHER SIMILARLY SITUATED EMPLOYEES IN
THE DISTRICT WHO HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST.
SUCH FRAGMENTED UNITS COULD NOT REASONABLY BE EXPECTED TO PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I
SHALL DISMISS THE PETITIONS IN CASE NOS. 40-3064(RO) AND 40-3137(RO).
ADDITIONALLY, I FIND THAT THE UNIT OF ALL NONSUPERVISORY EMPLOYEES OF
THE HYDRO-POWER BRANCH FIELD OFFICES AS PETITIONED FOR BY AFGE LOCAL
2257 IN CASE NO. 40-3492(RO) IS AN APPROPRIATE UNIT FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. THUS, A MAJORITY OF THE JOB CLASSIFICATIONS
FOUND IN THE POWERHOUSES ARE UNIQUE TO THESE FIELD OFFICES; SKILLED
POWERHOUSE EMPLOYEES HAVE THEIR OWN EXTENSIVE FOUR-YEAR TRAINING
PROGRAM; AND TRANSFERS OF POWERHOUSE EMPLOYEES HAVE BEEN RESTRICTED
LARGELY TO WITHIN-BRANCH PERSONNEL ACTIONS. HAVING FOUND THAT THE
POWERHOUSE EMPLOYEES PETITIONED FOR BY THE AFGE MAY, IF THEY SO DESIRE,
CONSTITUTE A SEPARATE APPROPRIATE UNIT, I SHALL NOT MAKE ANY FINAL
DETERMINATION AT THIS TIME, BUT SHALL FIRST ASCERTAIN THE DESIRES OF THE
EMPLOYEES BY DIRECTING AN ELECTION IN THE FOLLOWING GROUP:
VOTING GROUP (A): ALL EMPLOYEES OF THE HYDRO-POWER BRANCH FIELD
OFFICES OF THE OPERATIONS
DIVISION, U.S. ARMY ENGINEER DISTRICT, MOBILE, ALABAMA, EXCLUDING ALL
PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
FURTHER, IN VIEW OF MY FINDING IN FEDERAL AVIATION ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION, A/SLMR NO. 122, THAT EMPLOYEES IN
EXCLUSIVELY RECOGNIZED UNITS IN WHICH THE EVIDENCE ESTABLISHES THE
EXISTENCE OF A COLLECTIVE-BARGAINING HISTORY, I.E.-- SUCH UNITS HAVE
BEEN COVERED BY NEGOTIATED AGREEMENT WHICH EITHER STILL EXIST OR HAVE
RECENTLY EXPIRED-- SHOULD HAVE THE OPPORTUNITY TO VOTE IN A
SELF-DETERMINATION ELECTION IN THEIR EXISTING UNITS, I SHALL NOT MAKE
ANY FINAL DETERMINATIONS AT THIS TIME WITH RESPECT TO THE VOTING GROUPS
(B)M (C) AND (D) DESCRIBED BELOW, BUT SHALL FIRST ASCERTAIN THE DESIRES
OF THE EMPLOYEES IN:
VOTING GROUP (B) (FORMERLY COVERED BY A RECENTLY EXPIRED
COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE NMU AND THE ACTIVITY):
ALL MARINE FLOATING NON-OFFICER PERSONNEL EMPLOYED BY THE U.S. ARMY
ENGINEER DISTRICT,
MOBILE, EXCLUDING ALL PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
VOTING GROUP (C) (FORMERLY COVERED BY A RECENTLY EXPIRED
COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE AFGE LOCAL 2257 AND THE
ACTIVITY):
ALL EMPLOYEES OF THE JIM WOODRUFF AND COLUMBIA LOCKS ON THE
CHATTAHOOCHEE RIVER, EXCLUDING
ALL PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER.
VOTING GROUP (D) (FORMERLY COVERED BY A RECENTLY EXPIRED
COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE AFGE LOCAL 2421 AND THE
ACTIVITY):
ALL EMPLOYEES OF THE WALTER F. GEORGE-COLUMBIA LAKE, EXCLUDING ALL
PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
FURTHER, CONSISTENT WITH THE ABOVE DETERMINATION IN CASE NO.
40-3503(RO), I FIND THAT THE FOLLOWING EMPLOYEES IN VOTING GROUP (E) MAY
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491:
VOTING GROUP (E):
ALL EMPLOYEES OF THE U.S. ARMY ENGINEER DISTRICT, MOBILE, ALABAMA,
DISTRICT-WIDE, EXCLUDING
ALL PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER.
IF A MAJORITY OF THE EMPLOYEES VOTING IN VOTING GROUP (A) SELECT THE
LABOR ORGANIZATION WHICH IS SEEKING TO REPRESENT THEM SEPARATELY (AFGE
LOCAL 2257 IN CASE NO. 40-3492(RO)), OR IF A MAJORITY OF THE EMPLOYEES
VOTING IN VOTING GROUPS (B), (C) OR (D) SELECT THE INCUMBENT EXCLUSIVE
REPRESENTATIVE (NMU IN VOTING GROUP (B); AFGE LOCAL 2257 IN VOTING
GROUP (C); AND AFGE LOCAL 2421 IN VOTING GROUP (D)), THEY WILL BE TAKEN
TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE APPROPRIATE
UNIT. IN SUCH CIRCUMSTANCES, THE AREA ADMINISTRATOR SUPERVISING THE
ELECTION IS INSTRUCTED TO ISSUE A CERTIFICATION OF REPRESENTATIVE TO THE
LABOR ORGANIZATION SEEKING TO REPRESENT THE EMPLOYEES SEPARATELY OR TO
THE INCUMBENT EXCLUSIVE REPRESENTATIVE. HOWEVER, IF A MAJORITY OF THE
EMPLOYEES VOTING IN ANY OR ALL OF VOTING GROUPS (A), (B), (C) OR (D) DO
NOT VOTE FOR THE LABOR ORGANIZATION WHICH IS EITHER SEEKING TO REPRESENT
THEM IN A SEPARATE UNIT OR IS THE INCUMBENT EXCLUSIVE REPRESENTATIVE,
THE BALLOTS OF THE EMPLOYEES IN THESE VOTING GROUPS WILL BE POOLED WITH
THOSE OF THE EMPLOYEES IN VOTING GROUP (E). /18/ IN THE EVENT THAT A
MAJORITY OF THE VALID VOTES IN VOTING GROUP (E), INCLUDING ANY VOTES
POOLED FROM VOTING GROUPS (A), (B), (C) AND/OR (D), ARE CAST FOR NFFE
LOCALS 561 AND 131, AFGE LOCALS 2257 AND 2421, OR THE NMU, THAT LABOR
ORGANIZATION SHALL BE CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN VOTING GROUPS (A)M (B), (C) AND/OR (D) AND (E) WHICH, UNDER
THE CIRCUMSTANCES, I FIND TO BE AN APPROPRIATE UNIT FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION.
IT IS HEREBY ORDERED THAT THE PETITIONS IN CASE NOS. 40-3045(RO),
40-3064(RO) AND 40-3137(RO), BE, AND THEY HEREBY ARE, DISMISSED.
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN THE
VOTING GROUPS DESCRIBED ABOVE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
SIXTY (60) DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR
SHALL SUPERVISE THE ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE VOTING GROUPS WHO WERE
EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO HAVE QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE.
THOSE ELIGIBLE IN VOTING GROUP (A) SHALL VOTE WHETHER THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2257, AFL-CIO, BY NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 561, BY NATIONAL MARITIME UNION
OF AMERICA, AFL-CIO, OR BY NONE; THOSE ELIGIBLE IN VOTING GROUP (B)
SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION BY NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, BY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCALS 561 AND 131, BY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCALS 2257 AND 2421,
AFL-CIO, OR BY NONE; THOSE ELIGIBLE IN VOTING GROUP (C) SHALL VOTE
WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE EXCLUSIVE
RECOGNITION BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2257,
AFL-CIO, BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCALS 561 AND
131, BY NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, OR BY NONE; THOSE
ELIGIBLE IN VOTING GROUP (D) SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2421, AFL-CIO, BY NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCALS 561 AND 131, BY NATIONAL
MARITIME UNION OF AMERICA, AFL-CIO, OR BY NONE; AND THOSE ELIGIBLE IN
VOTING GROUP (E) SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION BY NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCALS 561 AND 131, BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCALS 2257 AND 2421, AFL-CIO, BY NATIONAL MARITIME UNION OF
AMERICA, AFL-CIO, OR BY NONE.
DATED, WASHINGTON, D.C.
SEPTEMBER 26, 1972
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE INTERVENOR APPEARS AS AMENDED AT THE HEARING.
/3/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/4/ THE CLAIMED UNIT APPEARS AS AMENDED.
/5/ THE CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING. IN EFFECT,
THE AMENDMENT TO THE CLAIMED UNIT ADDED ELIGIBLE EMPLOYEES AT THE
RECREATION RESOURCE MANAGEMENT BRANCH HEADQUARTERS AT MOBILE, ALABAMA,
AND FIELD OFFICES AT WALTER F. GEORGE - COLUMBIA LAKE, LAKE SIDNEY
LANIER, LAKE SEMINOLE, ALLATOONA LAKE, OKATIBBEE LAKE, BLACK-WARRIOR AND
TOMBIGBEE LAKES. THE ORIGINAL PETITIONED FOR UNIT WAS LIMITED TO THE
ALABAMA RIVER RESERVOIRS MANAGERS OFFICE OF THE RECREATION RESOURCE
MANAGEMENT BRANCH. THE CLAIMED UNIT AS AMENDED WAS CHALLENGED BY THE
AFGE ON THE BASIS THAT THE AMENDED PETITION SUBSTANTIALLY ENLARGED THE
ORIGINAL UNIT SOUGHT, AND REQUIRED A NEW SHOWING OF INTEREST AND A NEW
POSTING OF THE NOTICE OF PETITION. IN VIEW OF MY DISPOSITION HEREIN, I
FIND IT UNNECESSARY TO PASS UPON THE AFGE'S CHALLENGE IN THIS REGARD.
/6/ THE CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/7/ THE CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/8/ THE CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING. WITH RESPECT
TO AFGE LOCALS' 2257 AND 2421 CONTENTION THAT THEY WERE NOT SERVED WITH
THE ATTACHMENTS TO THE NFFE'S PETITION IN CASE NO. 40-3503(RO) AND,
THEREFORE, SUCH PETITION SHOULD BE DISMISSED, THESE LOCALS ADMITTEDLY
RECEIVED THE PETITION AND PARTICIPATED FULLY IN THE HEARING IN THIS
MATTER.
UNDER THESE CIRCUMSTANCES AND NOTING THAT SUCH PROCEDURAL OBJECTIONS
SHOULD HAVE BEEN RAISED WITH THE APPROPRIATE AREA ADMINISTRATOR PRIOR TO
THE COMMENCEMENT OF THE HEARING, I REJECT THE AFGE LOCALS' ABOVE-NOTED
CONTENTION. AS TO AFGE LOCAL 3054'S CONTENTION THAT IT WAS NOT SERVED
WITH A COPY OF THE PETITION IN CASE NO. 40-3503(RO) ALTHOUGH IT WAS THE
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES OF THE CORE DRILL SECTION OF
THE ENGINEERING DIVISION WITHIN THE MOBILE DISTRICT, IT APPEARS THAT THE
LOCAL'S SECRETARY-TREASURER, AS WELL AS OTHER MEMBERS OF THE LOCAL, WERE
AWARE OF THE PETITION WHICH WAS POSTED THROUGHOUT THE ACTIVITY AND THAT
THE LOCAL FAILED TO INTERVENE TIMELY OR RAISE OBJECTIONS IN THIS
CONNECTION PRIOR TO THE HEARING IN THIS MATTER. UNDER THESE
CIRCUMSTANCES, I DO NOT CONSIDER THE FACT THAT LOCAL 3054 DID NOT
RECEIVE A COPY OF THE PETITION TO WARRANT DISMISSAL.
/9/ THE ADVISORY AND ADMINISTRATIVE STAFF CONSISTS OF APPROXIMATELY
186 EMPLOYEES IN EIGHT OFFICES: THE COMPTROLLER; THE COUNSEL; THE
SAFETY OFFICE; THE OFFICE OF EMERGENCY PLANNING AND SECURITY; THE
PUBLIC AFFAIRS OFFICE; THE AUTOMATIC DATA PROCESSING CENTER; THE
OFFICE OF ADMINISTRATIVE SERVICES; AND THE PERSONNEL OFFICE.
/10/ SECTION 202.3(C) STATES, IN PERTINENT PART, "WHEN THERE IS A
SIGNED AGREEMENT COVERING A CLAIMED UNIT, A PETITION FOR EXCLUSIVE
RECOGNITION OR OTHER ELECTION PETITION WILL NOT BE CONSIDERED TIMELY IF
FILED DURING THE PERIOD WITHIN WHICH THAT AGREEMENT IS IN FORCE OR
AWAITING APPROVAL AT A HIGHER MANAGEMENT LEVEL, BUT NOT TO EXCEED AN
AGREEMENT PERIOD TO TWO (2) YEARS, UNLESS (1) A PETITION IS FILED NOT
MORE THAN NINETY (90) DAYS AND NOT LESS THAN SIXTY (60) DAYS PRIOR TO
THE TERMINAL DATE OF SUCH AGREEMENT OR TWO (2) YEARS, WHICHEVER IS
EARLIER . . . "
/11/ ARMY AND AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE CONSOLIDATED
EXCHANGE, FORT DIX, NEW JERSEY, A/SLMR NO. 195.
/12/ SECTION 202.3(B) STATES, IN PERTINENT PART, "WHEN THERE IS A
RECOGNIZED OR CERTIFIED EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, A
PETITION WILL NOT BE CONSIDERED TIMELY IF FILED WITHIN TWELVE (12)
MONTHS AFTER THE GRANT OF EXCLUSIVE RECOGNITION OR CERTIFICATION AS THE
EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT . . . "
/13/ ULTIMATELY, IN ORDER TO OBTAIN AN ELECTION IN THE BROAD
PETITIONED FOR UNIT INCLUDING THE PREVIOUSLY CERTIFIED UNIT, THE
PETITIONER WOULD HAVE TO INDICATE A WILLINGNESS TO WAIVE ITS EXCLUSIVE
RECOGNITION STATUS AND, IN EFFECT, PUT SUCH STATUS "ON THE LINE" AT THE
ELECTION. CF. DEPARTMENT OF THE ARMY, U.S. ARMY ELECTRONICS COMMAND,
FORT MONMOUTH, NEW JERSEY, A/SLMR NO. 83, FOOTNOTE 2. COMPARE ALSO U.S.
DEPARTMENT OF DEFENSE, DOD OVERSEAS DEPENDENT SCHOOLS, A/SLMR NO. 110,
WHERE I FOUND THAT AN AGREEMENT BAR MAY NOT BE WAIVED UNILATERALLY. AS
DISTINGUISHED FROM AN AGREEMENT BAR WHICH, IN EFFECT, ESTABLISHES
BILATERAL OBLIGATIONS, A CERTIFICATION OF REPRESENTATIVE IS GRANTED
SOLELY TO A LABOR ORGANIZATION. IN MY VIEW, THAT ORGANIZATION MAY,
WITHIN ITS OWN DISCRETION, CHOOSE TO WAIVE THE EFFECT OF SUCH
CERTIFICATION.
/14/ THE REPRESENTATION HEARING INVOLVING THE MILLERS FERRY
POWERHOUSE UNIT, WHICH OCCURRED MORE THAN TWELVE MONTHS PRIOR TO THE
FILING OF THE NFFE'S PETITION IN CASE NO. 40-3503(RO), WOULD NOT
CONSTITUTE A BAR WITHIN THE MEANING OF SECTION 202.4(F) OF THE ASSISTANT
SECRETARY'S REGULATIONS.
/15/ WITH RESPECT TO THE TEMPORARY EMPLOYEES OF THE MOBILE DISTRICT,
THE EVIDENCE INDICATES THAT THEY ARE FOUND PRIMARILY IN THE CORE DRILL
SECTION OF THE ENGINEERING DIVISION, WITH ONLY LIMITED NUMBERS SCATTERED
THROUGHOUT THE REMAINDER OF THE DISTRICT. WHILE THEIR APPOINTMENTS VARY
FROM 30 DAYS TO ONE YEAR, THE RECORD LACKS INFORMATION REGARDING THE
EXACT NATURE OF THEIR ASSIGNMENTS OR THE LIKELIHOOD OF THEIR BEING
RETAINED AFTER THE EXPIRATION OF THEIR ASSIGNMENTS. IN THESE
CIRCUMSTANCES, I SHALL NOT PASS UPON WHETHER THEY SHOULD BE INCLUDED IN
OR EXCLUDED FROM ANY UNIT FOUND APPROPRIATE HEREIN.
/16/ THIS TRAINING CONSISTS OF AN ENTRANCE EXAMINATION, AN
INTERNATIONAL CORRESPONDENCE COURSE AND TECHNICAL INSTRUCTION WITH
PERIODIC ORAL AND WRITTEN TESTS.
/17/ THE WAGE BOARD EMPLOYEES OF THE FLOATING PLANTS AND THE LOCKS
AND DAMS OF THE AREA OFFICES OF THE OPERATIONS DIVISION ARE THE ONLY
OTHER EMPLOYEES WHO HAVE A SPECIAL PAY SCHEDULE ESTABLISHED FOR THEIR
POSITIONS. HOWEVER, THIS PAY SCHEDULE, UNLIKE THAT OF THE POWERHOUSE
EMPLOYEES, LISTS WAGE LEVELS BY GRADES, NOT BY JOB TITLES.
/18/ IF THE VOTES OF VOTING GROUPS (A), (B), (C), AND/OR (D) ARE
POOLED WITH THE VOTES OF VOTING GROUP (E), THEY ARE TO BE TALLIED IN THE
FOLLOWING MANNER:
IN VOTING GROUP (A) ALL VOTES ARE TO BE ACCORDED THEIR FACE VALUE.
THUS, ANY VOTES FOR AFGE LOCAL 2257 SHALL BE POOLED WITH THE VOTES FOR
THE JOINT INTERVENORS, AFGE LOCALS 2257 AND 2421, IN VOTING GROUP (E);
ANY VOTES FOR NFFE LOCAL 561 SHALL BE POOLED WITH THE VOTES FOR THE
JOINT PETITIONERS NFFE LOCALS 561 AND 131, IN VOTING GROUP (E); AND ANY
VOTES FOR THE NMU SHALL BE POOLED WITH THE VOTES FOR THE NMU IN VOTING
GROUP (E).
IN VOTING GROUP (B) ALL VOTES ARE TO BE ACCORDED THEIR FACE VALUE.
THUS, ANY VOTES FOR THE NMU SHALL BE POOLED WITH THE VOTES FOR THE NMU
IN VOTING GROUP (E); ANY VOTES FOR NFFE LOCALS 561 AND 131 SHALL BE
POOLED WITH THE VOTES FOR NFFE LOCALS 561 AND 131 IN VOTING GROUP (E);
AND ANY VOTES FOR AFGE LOCALS 2257 AND 2421 SHALL BE POOLED WITH THE
VOTES FOR AFGE LOCALS 2257 AND 2421 IN VOTING GROUP (E).
IN VOTING GROUP (C) ALL VOTES ARE TO BE ACCORDED THEIR FACE VALUE.
THUS, ANY VOTES FOR AFGE LOCAL 2257 SHALL BE POOLED WITH THE VOTES FOR
THE JOINT INTERVENORS, AFGE LOCALS 2257 AND 2421 IN VOTING GROUP (E);
ANY VOTES FOR NFFE LOCALS 561 AND 131 SHALL BE POOLED WITH THOSE FOR
NFFE LOCALS 561 AND 131 IN VOTING GROUP (E); AND ANY VOTES FOR THE NMU
SHALL BE POOLED WITH THE VOTES FOR THE NMU IN VOTING GROUP (E).
IN VOTING GROUP (D) ALL VOTES ARE TO BE ACCORDED THEIR FACE VALUE.
THUS, ANY VOTES FOR AFGE LOCAL 2421 SHALL BE POOLED WITH THE VOTES FOR
THE JOINT INTERVENORS, AFGE LOCALS 2257 AND 2421 IN VOTING GROUP (E);
ANY VOTES FOR NFFE LOCALS 561 AND 131 SHALL BE POOLED WITH THE VOTES FOR
NFFE LOCALS 561 AND 131 IN VOTING GROUP (E); AND ANY VOTES FOR THE NMU
SHALL BE POOLED WITH THE VOTES FOR THE NMU IN VOTING GROUP (E).
ADDITIONALLY, ALL VOTES WHICH ARE CAST AGAINST REPRESENTATION SHALL
BE POOLED, WHERE APPROPRIATE, WITH THE VOTES CAST AGAINST REPRESENTATION
IN VOTING GROUP (E).
2 A/SLMR 205; P. 481; CASE NO. 41-2713(RO 25); SEPTEMBER 25, 1972.
DEPARTMENT OF AGRICULTURE,
FARMERS HOME ADMINISTRATION,
NASHVILLE, TENNESSEE
A/SLMR NO. 205
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 97, SEEKING A UNIT OF ALL
NON-SUPERVISORY PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE
FARMERS HOME ADMINISTRATION EMPLOYED IN THE STATE OF TENNESSEE. THE
PARTIES WERE IN AGREEMENT AS TO THE APPROPRIATENESS OF THE UNIT SOUGHT.
IN ACCORDANCE WITH THE PARTIES' POSITION, THE ASSISTANT SECRETARY FOUND
THAT THE PETITIONED FOR UNIT WAS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. IN THIS REGARD, HE NOTED THERE IS SUBSTANTIAL
STATE-WIDE ADMINISTRATIVE AND OPERATIONAL CONTROL EXERCISED BY THE STATE
DIRECTOR. ALSO, THERE ARE NO VARIATIONS IN THE QUALIFICATIONS FOR
EMPLOYMENT OR THE WORK TO BE PERFORMED IN THE RESPECTIVE JOB
CLASSIFICATIONS THROUGHOUT THE STATE, THE EMPLOYEES THROUGHOUT THE STATE
OF TENNESSEE ARE GOVERNED BY THE SAME STATE-WIDE PERSONNEL AND LABOR
RELATIONS POLICIES, AND TRANSFERS ARE EFFECTED THROUGHOUT THE STATE BY
THE STATE DIRECTOR'S OFFICE.
WITH RESPECT TO THE ELIGIBILITY QUESTIONS RAISED IN THIS MATTER, THE
ASSISTANT SECRETARY CONCLUDED THAT COUNTY SUPERVISORS SHOULD BE EXCLUDED
FROM THE UNIT FOUND APPROPRIATE DESPITE THE FACT THAT AT THE TIME OF THE
HEARING 24 OF THE 69 COUNTY SUPERVISORS HAD ONLY ONE SUBORDINATE. THIS
DETERMINATION WAS BASED ON EVIDENCE OF SUBSTANTIAL FLUIDITY IN THE
STAFFING PATTERN IN THE ACTIVITY'S COUNTY OFFICES PRECIPITATED BY
EMPLOYEE TRANSFERS, OPENING OF NEW OFFICES, AND VACANCIES NOT YET FILLED
RESULTING FROM RESIGNATIONS, RETIREMENTS, AND SEPARATIONS. MOREOVER,
THE EVIDENCE REVEALED THAT ALL EXCEPT TWO OF THE COUNTY OFFICES HAD
AUTHORIZED STAFFING PATTERNS IN EXCESS OF ONE SUBORDINATE. UNDER THESE
CIRCUMSTANCES AND CONSIDERING THE JOB FUNCTIONS AND RESPONSIBILITIES OF
THE COUNTY SUPERVISOR, THE ASSISTANT SECRETARY FOUND THAT, WITH CERTAIN
EXCEPTIONS, COUNTY SUPERVISORS WERE SUPERVISORS WITHIN THE MEANING OF
THE ORDER. THE ASSISTANT SECRETARY NOTED THAT WHERE THE EVIDENCE
ESTABLISHED THAT BASED ON PAST HISTORY OR AN AUTHORIZED STAFFING PATTERN
OF ONE SUBORDINATE A COUNTY SUPERVISOR DID NOT HAVE A REASONABLE
EXPECTANCY OF HAVING MORE THAN ONE SUBORDINATE, HE WOULD NOT CONSTITUTE
A SUPERVISOR WITHIN THE MEANING OF THE ORDER.
THE ASSISTANT SECRETARY FOUND THAT ASSISTANT COUNTY SUPERVISORS,
CLASSIFIED AS AGRICULTURE MANAGEMENT SPECIALISTS, GS-475 SERIES, WERE
NOT PROFESSIONALS AND SHOULD BE INCLUDED IN THE CLAIMED UNIT WITH OTHER
NONPROFESSIONAL EMPLOYEES. ALTHOUGH ACKNOWLEDGING THAT THE JOB
DESCRIPTIONS OF THE ASSISTANT COUNTY SUPERVISORS MET SOME, IF NOT MOST,
OF THE CRITERIA SET OUT IN THE DEFINITION OF PROFESSIONAL EMPLOYEES IN A
RECENT DECISION, THE ASSISTANT SECRETARY NOTED AS A DETERMINING FACTOR
THAT THE EVIDENCE REVEALED THAT THE MAJORITY OF THE WORK OF THE
EMPLOYEES IN QUESTION IS PREDOMINATELY ROUTINE IN NATURE AND REQUIRES
LIMITED DISCRETION. THE ASSISTANT SECRETARY MADE ADDITIONAL ELIGIBILITY
DETERMINATIONS WITH RESPECT TO COMMUNITY PROGRAM SPECIALISTS AND RURAL
HOUSING PROGRAM SPECIALISTS, CONSTRUCTION INSPECTORS AND RURAL HOUSING
PROGRAM SPECIALISTS, CONSTRUCTION INSPECTORS, A TEMPORARY COUNTY OFFICE
CLERK, FARMER PROGRAM SPECIALISTS, AN ARCHITECT, CIVIL ENGINEERS, AND A
SPECIAL PROJECTS REPRESENTATIVE.
DEPARTMENT OF AGRICULTURE,
FARMERS HOME ADMINISTRATION,
NASHVILLE, TENNESSEE
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 97
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER HOWARD L. MARSH.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF SUBMITTED BY
THE ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
97, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL PROFESSIONAL
AND NONPROFESSIONAL EMPLOYEES OF THE FARMERS HOME ADMINISTRATION, HEREIN
CALLED FHA, IN THE STATE OF TENNESSEE, BUT EXCLUDING ALL MANAGEMENT
OFFICIALS, SUPERVISORS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, AND GUARDS AS DEFINED IN THE
ORDER.
THE FHA IS A SUPERVISED CREDIT AGENCY FOR RURAL COMMUNITIES AND RURAL
INDIVIDUALS WHO ARE UNABLE TO OBTAIN CREDIT FROM LOCAL SOURCES. THE
HEADQUARTERS OFFICE FOR THE STATE OF TENNESSEE IS LOCATED IN NASHVILLE,
AND IS HEADED BY A STATE DIRECTOR. THIS OFFICE IS COMPRISED OF FOUR
DIVISIONS: RURAL HOUSING, FARMER PROGRAMS, COMMUNITY PROGRAMS, AND
SPECIAL PROJECTS. THE FIELD OPERATIONS IN THE STATE OF TENNESSEE ARE
DIVIDED INTO 10 DISTRICTS, EACH HEADED BY A DISTRICT SUPERVISOR. UNDER
THE 10 DISTRICTS ARE 69 COUNTY OFFICES EACH OF WHICH IS DIRECTED BY A
COUNTY SUPERVISOR. THE RECORD REVEALS THAT THERE ARE 95 COUNTIES IN THE
STATE. THUS, SOME COUNTY SUPERVISORS ARE RESPONSIBLE FOR MORE THAN ONE
COUNTY.
I FIND THAT THE CLAIMED STATE-WIDE UNIT IS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS CONNECTION, THE EVIDENCE
SHOWS THAT THERE IS SUBSTANTIAL STATE-WIDE ADMINISTRATIVE AND
OPERATIONAL CONTROL EXERCISED BY THE STATE DIRECTOR. FURTHER, THERE ARE
NO VARIATIONS IN THE QUALIFICATIONS FOR EMPLOYMENT OR THE WORK TO BE
PERFORMED IN THE RESPECTIVE JOB CLASSIFICATIONS THROUGHOUT THE STATE OF
TENNESSEE AND THE EMPLOYEES THROUGHOUT THE STATE GOVERNED BY THE SAME
STATE-WIDE PERSONNEL AND LABOR RELATIONS POLICIES. MOREOVER, TESTIMONY
REVEALED THAT TRANSFERS ARE EFFECTED THROUGHOUT THE STATE BY THE STATE
DIRECTOR'S OFFICE. UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES
IN THE CLAIMED UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AND THAT SUCH A UNIT WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
ALTHOUGH THE PARTIES WERE IN AGREEMENT AS TO THE APPROPRIATE UNIT,
SEVERAL ELIGIBILITY QUESTIONS WERE PRESENTED.
COUNTY SUPERVISORS
THERE ARE 68 COUNTY SUPERVISORS AND 1 ACTING COUNTY SUPERVISOR IN
TENNESSEE. THEY ARE RESPONSIBLE FOR THE MANAGEMENT AND DIRECTION OF
WORK IN THE COUNTY OFFICES. IN THIS REGARD, THEY CARRY OUT DIVERSIFIED
AGRICULTURE AND RURAL ASSISTANCE ACTIVITIES, WHICH INCLUDE THE
APPROVING, PROCESSING, AND SERVICING OF VARIOUS TYPES OF LOANS TO BOTH
INDIVIDUALS AND GROUPS. IN THE EXERCISE OF THIS RESPONSIBILITY, THEY
MAY DELEGATE PRESCRIBED LOAN APPROVAL AUTHORITY TO ASSISTANT COUNTY
SUPERVISORS. COUNTY SUPERVISORS CONDUCT MONTHLY MEETINGS WITH THEIR
STAFFS FOR THE PURPOSE OF PLANNING WORK SCHEDULES FOR THE FOLLOWING
MONTH AND OF RESOLVING ANY CONFLICT WHICH MAY HAVE DEVELOPED WITH REGARD
TO CASE HANDLING. THEY INDEPENDENTLY EVALUATE THE PERFORMANCE OF
EMPLOYEES IN THEIR RESPECTIVE OFFICES, AND THEY CERTIFY AS TO THE
ACCEPTABLE LEVEL OF COMPETENCE OF THEIR EMPLOYEES FOR PURPOSES OF
WITHIN-GRADE INCREASES. THE PARTIES STIPULATED THAT THE COUNTY
SUPERVISORS APPROVE LEAVE AND VACATION SCHEDULES, ASSIGN AND DIRECT THE
STAFF UNDER THEM, AND EFFECTIVELY RECOMMEND PROMOTIONS, THE CONTINUED
EMPLOYMENT OF PROBATIONARY EMPLOYEES OR THEIR TERMINATION, AND ANY
DISCIPLINARY ACTION TO BE TAKEN. FURTHER, THEY HAVE THE RESPONSIBILITY
FOR HANDLING THE PRELIMINARY STAGES OF EMPLOYEE GRIEVANCES. IN VIEW OF
THE FACT THAT THE DISTRICT SUPERVISORS VISIT THE INDIVIDUAL COUNTRY
OFFICERS ON AN AVERAGE OF ONCE A MONTH AND THAT THE STATE DIRECTOR
VISITS ONCE A YEAR, IT IS CLEAR THAT THE COUNTY SUPERVISORS ARE SUBJECT
TO MINIMAL IMMEDIATE SUPERVISION.
AT THE TIME OF THE HEARING IN THIS CASE, 24 OF THE 69 COUNTY
SUPERVISORS IN THE STATE OF TENNESSEE HAD ONLY ONE SUBORDINATE IN THEIR
RESPECTIVE OFFICES. HOWEVER, THE EVIDENCE CLEARLY ESTABLISHES THAT IN
MOST CASES THIS IS NOT A STATIC CONDITION. THUS, THE RECORD REVEALS
THAT IN 67 OF THE 69 COUNTRY OFFICES, THE AUTHORIZED STAFFING PATTERN
PROVIDES FOR MORE THAN ONE SUBORDINATE. FURTHER, THERE IS, IN FACT,
SUBSTANTIAL FLUIDITY IN THE ACTUAL STAFFING OF THE COUNTY OFFICES. FOR
EXAMPLE, WITHIN THE PAST YEAR, FOUR OR FIVE TRANSFERS FROM ONE COUNTY
OFFICE TO ANOTHER HAD THE EFFECT OF CHANGING THE ONE-SUBORDINATE STATUS
OF CERTAIN OF THE COUNTY OFFICES. MOREOVER, AT LEAST FIVE NEW COUNTY
OFFICES WERE OPENED WITHIN THE PREVIOUS TWO YEARS. THE RECORD REVEALS
ALSO THAT RECENT RETIREMENTS AND SEPARATIONS HAVE RESULTED IN CERTAIN
COUNTY OFFICES, WHICH PREVIOUSLY CONTAINED MORE THAN ONE SUBORDINATE,
BEING REDUCED TO A SINGLE SUBORDINATE. TO ADD FURTHER TO THIS FLUID
SITUATION, THE 13 CONSTRUCTION INSPECTORS IN THE STATE OF TENNESSEE, WHO
ARE STATIONED IN PARTICULAR COUNTY OFFICES, MAY BE REQUIRED TO WORK IN
TWO DIFFERENT COUNTIES AND, THEREFORE, AT VARIOUS TIMES ARE SUBJECT TO
THE SUPERVISION OF DIFFERENT COUNTY SUPERVISORS BASED ON THE LOCATION OF
THE COUNTY IN WHICH THEY HAPPEN TO BE WORKING AT A PARTICULAR TIME.
FINALLY, TESTIMONY REVEALED THAT WHEN ADDITIONAL ADMINISTRATIVE FUNDS
ARE MADE AVAILABLE OR WHEN PERSONNEL CEILINGS ARE RELAXED, THE STAFFS OF
CERTAIN ONE-SUBORDINATE OFFICES WILL BE INCREASED.
BASED ON THE ABOVE-NOTED JOB FUNCTIONS AND RESPONSIBILITIES OF THE
COUNTY SUPERVISORS WHICH REFLECT CLEARLY INDICIA OF SUPERVISORY
AUTHORITY AND NOTING THE DEMONSTRATED FLUIDITY OF THE COUNTY WORK-FORCE
WHICH RESULTS IN CERTAIN COUNTY SUPERVISORS HAVING ONE SUBORDINATE AT
CERTAIN TIMES AND ADDITIONAL SUBORDINATES AT OTHER TIMES, /1/ I FIND
THAT WITH THE EXCEPTION OF THOSE COUNTY SUPERVISORS DISCUSSED BELOW AT
FOOTNOTE 2, THE ACTIVITY'S COUNTY SUPERVISORS ARE SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER AND SHOULD BE EXCLUDED FROM THE
UNIT FOUND APPROPRIATE. /2/
ASSISTANT COUNTY SUPERVISORS
AN ISSUE WAS RAISED AS TO WHETHER 40 OF THE 48 ASSISTANT COUNTY
SUPERVISORS IN TENNESSEE SHOULD BE CLASSIFIED AS PROFESSIONAL EMPLOYEES
WITHIN THE MEANING OF THE ORDER. /3/ AT THE COMMENCEMENT OF THEIR
EMPLOYMENT, THE ASSISTANT COUNTY SUPERVISORS ARE GIVEN A FORMAL
SIX-MONTH TRAINING PERIOD. THE 40 ASSISTANT COUNTY SUPERVISORS IN
QUESTION (TOGETHER WITH DISTRICT SUPERVISORS AND COUNTY SUPERVISORS) ARE
IN THE AGRICULTURE MANAGEMENT SERIES, GS-475, AND ARE DESIGNATED AS
AGRICULTURE MANAGEMENT SPECIALISTS. ALL HAVE COLLEGE DEGREES IN SOME
PHASE OF AGRICULTURE. THE PARTIES ASSERT THAT ASSISTANT COUNTY
SUPERVISORS ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE ORDER.
/4/ IN SUPPORT OF ITS POSITION, THE ACTIVITY CONTENDS THAT THE WORK OF
AN AGRICULTURE MANAGEMENT SPECIALIST IS PRIMARILY INTELLECTUAL AND
VARIED IN CHARACTER AS DISTINGUISHED FROM BEING ROUTINE OR PHYSICAL;
INVOLVES THE CONSISTENT EXERCISE OF DISCRETION AND INDEPENDENT JUDGMENT;
IS NOT STANDARIZED; AND REQUIRES KNOWLEDGE OF AN ADVANCED TYPE IN
AGRICULTURE SCIENCE OBTAINED FROM A UNIVERSITY OR COLLEGE AS OPPOSED TO
A GENERAL ACADEMIC EDUCATION. FURTHER, IT IS ASSERTED THAT THE JOB
CLASSIFICATION IS CLASSIFIED AS "PROFESSIONAL" BY THE U.S. CIVIL SERVICE
COMMISSION.
IN A RECENT DECISION, I HAD OCCASION TO DEFINE A PROFESSIONAL
EMPLOYEE WITHIN THE MEANING OF THE ORDER. /5/ IT APPEARS THAT BASED ON
THE JOB DESCRIPTIONS OF THE EMPLOYEES IN QUESTION, THEY WOULD MEET MOST,
IF NOT ALL, OF THE SPECIFIC CRITERIA SET FORTH IN THE DEFINITION. /6/
HOWEVER, IN DETERMINING WHETHER AN EMPLOYEE IS A PROFESSIONAL WITHIN THE
MEANING OF THE ORDER, IT MUST BE DEMONSTRATED THAT BEYOND HIS JOB
DESCRIPTION AND EDUCATIONAL BACKGROUND THE EMPLOYEE INVOLVED IS ENGAGED
IN THE PERFORMANCE OF WORK WHICH MEETS THE PRESCRIBED CRITERIA. IN THE
INSTANT CASE, THE RECORD SHOWS THAT THE MAJORITY OF THE WORK PERFORMED
IN THE COUNTY OFFICES IS CONCERNED WITH LOAN PROGRAMS AND, IN
PARTICULAR, THE RURAL HOUSING PROGRAMS. /7/ SUCH LOANS ARE PROCESSED
UNDER THE DIRECTION OF THE COUNTY SUPERVISOR AND THE ASSISTANT COUNTY
SUPERVISOR, BOTH OF WHOM ARE AGRICULTURE MANAGEMENT SPECIALISTS, GS-475
SERIES. APPLICANTS FOR A LOAN ARE INTERVIEWED EITHER BY THE COUNTY
SUPERVISOR, ASSISTANT COUNTY SUPERVISOR, OR BY A CLERK. AFTER AN
APPLICATION HAS BEEN RECEIVED, THE COUNTY SUPERVISOR, ASSISTANT COUNTY
SUPERVISOR, OR A CLERK OBTAINS INFORMATION OVER THE TELEPHONE REGARDING
THE APPLICANT AND FACTS OBTAINED ARE SUPPLIED TO A COUNTY COMMITTEE,
WHICH CERTIFIES THE ELIGIBILITY OF THE LOAN APPLICANT. AFTER AN
APPLICANT HAS BEEN FOUND TO BE ELIGIBLE FOR A LOAN, THE COUNTY
SUPERVISOR OR ASSISTANT COUNTY SUPERVISOR PREPARES NECESSARY PAPERS,
MOST OF WHICH ARE STANDARD FORMS, IN ORDER FOR THE APPLICANT TO RECEIVE
A LOAN. SUBSEQUENT TO THE GRANTING OF A LOAN, THE COUNTY SUPERVISOR,
ASSISTANT COUNTY SUPERVISOR, OR COUNTY OFFICE CLERK KEEPS A RECORD OF
ALL MONEY THAT IS SPENT. THE RECORD REVEALS THAT KNOWLEDGE OF AN
ADVANCED TYPE ACQUIRED BY A PROLONGED COURSE OF SPECIALIZED INSTRUCTION
IN AGRICULTURE IS NOT UTILIZED IN THE PROCESSING OF RURAL HOUSING LOANS
AND THAT A GENERAL COLLEGE BACKGROUND IS SUFFICIENT TO ENABLE AN
INDIVIDUAL TO PERFORM SUCH A JOB FUNCTION. THUS, IT APPEARS THAT A
MAJORITY OF THE WORK ACTUALLY PERFORMED BY ASSISTANT COUNTY SUPERVISORS
IS PREDOMINATELY ROUTINE IN NATURE AND REQUIRES LIMITED DISCRETION.
UNDER THESE CIRCUMSTANCES, I FIND THAT ASSISTANT COUNTY SUPERVISORS
IN THE GS-475 SERIES ARE NOT PROFESSIONAL EMPLOYEES WITHIN THE MEANING
OF THE ORDER, /8/ AND THAT THE EMPLOYEES IN THIS CLASSIFICATION SHOULD
BE INCLUDED IN THE UNIT FOUND APPROPRIATE WITH THE OTHER NONPROFESSIONAL
EMPLOYEES. /9/
ADDITIONAL ELIGIBILITY FINDINGS
THE PARTIES ARE IN AGREEMENT THAT TWO COMMUNITY PROGRAM SPECIALISTS
AND THREE RURAL HOUSING PROGRAM SPECIALISTS, ALL OF WHOM WORK IN THE
STATE OFFICE, ARE NOT PROFESSIONALS WITHIN THE MEANING OF THE ORDER. AS
THERE IS NO EVIDENCE IN THE RECORD THAT THE PARTIES' STIPULATION WAS
IMPROPER, AND NOTING THAT EMPLOYEES IN THESE CLASSIFICATIONS ARE NOT
REQUIRED TO HAVE A SPECIALIZED COLLEGE DEGREE, I FIND THAT THE EMPLOYEES
IN THESE TWO CLASSIFICATIONS ARE NOT PROFESSIONALS WITHIN THE MEANING OF
THE ORDER.
THE RECORD REVEALS THAT THERE ARE 13 CONSTRUCTION INSPECTORS, HIRED
ON "TEMPORARY" APPOINTMENTS WHO, AS NOTED ABOVE, ARE ASSIGNED TO
DIFFERENT COUNTY OFFICES IN TENNESSEE. THEY WORK UNDER THE SUPERVISION
OF THE PARTICULAR COUNTY SUPERVISOR IN THE AREA IN WHICH THEY ARE
WORKING. CONSTRUCTION INSPECTORS MAKE HOUSING INSPECTIONS, ASSIST
BORROWERS WITH PLANS AND SPECIFICATIONS, AND CHECK CONSTRUCTION TO SEE
THAT IT MEETS MINIMUM STANDARDS. THE LENGTH OF THEIR APPOINTMENTS
RANGES FROM THREE TO SIX MONTHS, AND THE RECORD INDICATES THAT MOST OF
THEM ARE REAPPOINTED ON A CONTINUING BASIS. THE PARTIES AGREED THAT
THESE EMPLOYEES SHOULD BE INCLUDED IN THE UNIT. AS THE RECORD REVEALS
THAT CONSTRUCTION INSPECTORS HAVE A REASONABLE EXPECTANCY OF FUTURE
EMPLOYMENT, I FIND THAT THEY SHOULD BE INCLUDED IN THE CLAIMED UNIT.
THERE IS ONE TEMPORARY CLERK EMPLOYED IN ONE COUNTY OFFICE. THE
RECORD REVEALS THAT THIS EMPLOYEE PERFORMS THE SAME WORK AND HAS THE
SAME WORKING CONDITIONS AS OTHER COUNTY OFFICE CLERKS. THE PARTIES
AGREED THAT THIS EMPLOYEE SHOULD BE INCLUDED IN THE UNIT. NOTING THAT
THE EMPLOYEE IN THIS CLASSIFICATION WAS HIRED FOR A ONE-YEAR TERM WITH
THE POSSIBILITY THAT SHE MAY BECOME A PERMANENT EMPLOYEE, I FIND THAT
THE TEMPORARY CLERK SHOULD BE INCLUDED IN THE CLAIMED UNIT. /10/
THE PARTIES STIPULATED THAT TWO FARMER PROGRAM SPECIALISTS, AN
ARCHITECT AND TWO CIVIL ENGINEERS, ALL OF WHOM WORK OUT OF THE STATE
OFFICE, ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE ORDER. THE
RECORD SHOWS THESE EMPLOYEES ARE REQUIRED TO HAVE COLLEGE DEGREES IN
THEIR SPECIALIZED AREAS AND THAT THEIR EDUCATION IS UTILIZED ON A
CONTINUING BASIS IN THE PERFORMANCE OF THEIR WORK WHICH IS PREDOMINATELY
INTELLECTUAL AND VARIED IN CHARACTER. UNDER THE CIRCUMSTANCES, I FIND
THESE EMPLOYEES TO BE PROFESSIONALS WITHIN THE MEANING OF THE ORDER.
/11/
THERE IS ONE SPECIAL PROJECTS REPRESENTATIVE EMPLOYED IN THE STATE
OFFICE. THE PARTIES WOULD EXCLUDE THIS EMPLOYEE ON THE BASIS THAT HE IS
A MANAGEMENT OFFICIAL WITHIN THE MEANING OF THE ORDER. THE SPECIAL
PROJECTS REPRESENTATIVE HAS THE RESPONSIBILITY FOR CONDUCTING PROGRAM
REVIEWS IN EACH DISTRICT. HE REPRESENTS THE STATE DIRECTOR ON OCCASION,
AND HAS HEADED SOME COMMUNITY ACTION MEETINGS. FURTHER, THE RECORD
REVEALS THAT HE, ALONG WITH DIVISION CHIEFS, ATTENDS POLICY-MAKING
MEETINGS CALLED BY THE STATE DIRECTOR, AND THAT HE ASSISTS IN SETTING
POLICY FOR THE ACTIVITY. BASED ON THE FOREGOING, AND NOTING THE
EMPLOYEE'S ACTIVE PARTICIPATION IN THE FORMULATION OF ACTIVITY POLICY, I
FIND THAT THE SPECIAL PROJECTS REPRESENTATIVE IS A MANAGEMENT OFFICIAL
WITHIN THE MEANING OF THE ORDER. /12/
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF
AGRICULTURE, FARMERS
HOME ADMINISTRATION, EMPLOYED IN THE STATE OF TENNESSEE, EXCLUDING
ALL EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
AS NOTED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10(B)(4) OF
THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH EMPLOYEES
WHO ARE NOT PROFESSIONALS UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES
OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I, THEREFORE, SHALL
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF
AGRICULTURE, FARMERS HOME ADMINISTRATION, EMPLOYED IN THE STATE OF
TENNESSEE, EXCLUDING ALL NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
VOTING GROUP (B): ALL NONPROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF
AGRICULTURE, FARMERS HOME ADMINISTRATION, EMPLOYED IN THE STATE OF
TENNESSEE, EXCLUDING ALL PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE NFFE.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED BY THE
NFFE. IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP
(A) ARE CAST IN FAVOR OF INCLUSION IN THE SAME UNIT AS NONPROFESSIONALS,
THE BALLOTS OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING
GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST FOR
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING WHETHER OR NOT
THE NFFE WAS SELECTED BY THE PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER,
AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF
AGRICULTURE, FARMERS
HOME ADMINISTRATION, EMPLOYED IN THE STATE OF TENNESSEE, EXCLUDING
ALL EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER, AS AMENDED:
(A) ALL NONPROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE,
FARMERS HOME
ADMINISTRATION, EMPLOYED IN THE STATE OF TENNESSEE, EXCLUDING ALL
PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
(B) ALL PROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE,
FARMERS HOME
ADMINISTRATION, EMPLOYED IN THE STATE OF TENNESSEE, EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 97.
DATED, WASHINGTON, D.C.
SEPTEMBER 25, 1972
/1/ COMPARE UNITED STATES DEPARTMENT OF AGRICULTURE, NORTHERN
MARKETING AND NUTRITION RESEARCH DIVISION, PEORIA, ILLINOIS, A/SLMR NO.
120.
/2/ THE RECORD REVEALS THAT THE COUNTY SUPERVISORS IN THE COUNTIES OF
MOUNTAIN CITY AND NEWPORT HAVE NO REASONABLE EXPECTANCY OF SUPERVISING
MORE THAN ONE SUBORDINATE. IN THESE CIRCUMSTANCES, I FIND THAT THESE
TWO COUNTY SUPERVISORS ARE NOT SUPERVISORS WITHIN THE MEANING OF THE
ORDER AND SHALL INCLUDE THEM IN THE CLAIMED UNIT. SEE UNITED STATES
DEPARTMENT OF AGRICULTURE, NORTHERN MARKETING AND NUTRITION RESEARCH
DIVISION, PEORIA, ILLINOIS, CITED ABOVE. TO THE EXTENT THAT IT IS
INCONSISTENT WITH THE DECISION IN THE SUBJECT CASE, DISTRICT OF NEW
JERSEY, DELAWARE AND MARYLAND, FARMERS HOME ADMINISTRATION, DEPARTMENT
OF AGRICULTURE, A/SLMR NO. 50, IS OVERRULED.
AS TO THE REMAINING 22 COUNTY OFFICES WHICH CURRENTLY HAVE ONE
SUBORDINATE, IN MY VIEW, THE CIRCUMSTANCES DESCRIBED ABOVE WARRANT THE
CONCLUSION THAT THE COUNTY SUPERVISORS IN SUCH OFFICES HAVE A REASONABLE
EXPECTANCY OF SUPERVISING MORE THAN ONE SUBORDINATE WHERE THERE IS
EVIDENCE THAT IN THE PAST THESE OFFICES HAVE, IN FACT, BEEN STAFFED BY
MORE THAN ONE SUBORDINATE. HOWEVER, WHERE THERE IS EVIDENCE THAT
DESPITE A STAFFING PATTERN PROVIDING FOR MORE THAN ONE SUBORDINATE THE
POSITIONS HAVE AT NO TIME BEEN FILLED, THE COUNTY SUPERVISOR IN SUCH
OFFICE WOULD NOT BE VIEWED AS A SUPERVISOR WITHIN THE MEANING OF THE
ORDER.
/3/ THE OTHER EIGHT ASSISTANT COUNTY SUPERVISORS ARE CLASSIFIED IN
THE LOAN SPECIALIST SERIES, GS-1165. THE PARTIES AGREE THAT THE
ASSISTANT COUNTY SUPERVISORS IN THE GS-1165 SERIES ARE NONPROFESSIONAL
EMPLOYEES. AS THE RECORD SUPPORTS THE PARTIES' STIPULATION IN THIS
REGARD, I FIND THAT THE ASSISTANT COUNTY SUPERVISORS, LOAN SPECIALIST
SERIES GS-1165, ARE NONPROFESSIONAL EMPLOYEES AND SHOULD BE INCLUDED IN
THE APPROPRIATE UNIT WITH OTHER NONPROFESSIONAL EMPLOYEES.
/4/ THERE WAS NO CONTENTION THAT THESE EMPLOYEES ARE SUPERVISORS.
/5/ DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, RIVERSIDE
DISTRICT AND LAND OFFICE, A/SLMR NO. 170.
/6/ THE DEFINITION PROVIDED THAT A PROFESSIONAL EMPLOYEE WAS ONE WHO
WAS ENGAGED IN THE PERFORMANCE OF WORK: (1) REQUIRING KNOWLEDGE OF AN
ADVANCED TYPE IN A FIELD OF SCIENCE OR LEARNING CUSTOMARILY ACQUIRED BY
A PROLONGER COURSE OF SPECIALISED 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, OR PHYSICAL PROCESSES; (2) REQUIRING THE CONSISTENT EXERCISE OF
DISCRETION AND JUDGMENT IN ITS PERFORMANCE; (3) WHICH IS PREDOMINATELY
INTELLECTUAL AND VARIED IN CHARACTER (AS OPPOSED TO ROUTINE MENTAL,
MANUAL, MECHANICAL OR PHYSICAL WORK); AND (4) WHICH IS OF SUCH A
CHARACTER THAT THE OUTPUT PRODUCED OR THE RESULT ACCOMPLISHED CANNOT BE
STANDARDIZED IN RELATION TO A GIVEN PERIOD OF TIME.
/7/ THERE WAS TESTIMONY THAT 90 PERCENT OF THE LOANS MADE IN ONE
COUNTY WERE RURAL HOUSING LOANS AND THAT FOR THE PREVIOUS YEAR THE FHA
HAD APPROPRIATED $3.5 MILLION FOR FARM OWNERSHIP LOANS AND APPROXIMATELY
$50 MILLION FOR RURAL HOUSING LOANS.
/8/ IN REACHING THIS RESULT, IT SHOULD BE NOTED THAT IN DECIDING
QUESTIONS OF PROFESSIONAL STATUS THE EDUCATION OR KNOWLEDGE REQUIRED FOR
A PARTICULAR JOB WILL BE DEEMED RELEVANT RATHER THAN THE EDUCATION OR
KNOWLEDGE POSSESSED BY THE INDIVIDUAL.
/9/ WITH REGARD TO THE FACT THAT THE U.S. CIVIL SERVICE COMMISSION
CLASSIFIES THE AGRICULTURE MANAGEMENT SERIES, GS-475, AS "PROFESSIONAL,"
I HAVE PREVIOUSLY FOUND THAT SUCH A DETERMINATION, WHETHER MADE BY THE
U.S. CIVIL SERVICE COMMISSION OR BY AN AGENCY, WILL NOT BE DETERMINATIVE
FOR LABOR RELATIONS PURPOSES UNDER THE PROVISIONS OF EXECUTIVE ORDER
11491, AS AMENDED. SEE DEPARTMENT OF INTERIOR, BUREAU OF LAND
MANAGEMENT, RIVERSIDE DISTRICT AND LAND OFFICE, CITED ABOVE.
/10/ THE RECORD REVEALS THAT THERE ARE 7 CLERICALS IN THE STATE
OFFICE AND 102 CLERICALS IN THE COUNTY OFFICES. THESE FIGURES INCLUDE
18 PERMANENT PART-TIME CLERKS WHO WORK FROM 36 TO 39 HOURS PER WEEK. IN
AGREEMENT WITH THE PARTIES, I FIND THAT ALL OF THE CLERICALS SHOULD BE
INCLUDED IN THE CLAIMED UNIT.
/11/ CF. DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT,
RIVERSIDE DISTRICT AND LAND OFFICE, CITED ABOVE.
/12/ CF. DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
A/SLMR NO. 135.
2 A/SLMR 204; P. 476; CASE NO. 61-1545(RO); SEPTEMBER 25, 1972.
U.S. DEPARTMENT OF INTERIOR,
BUREAU OF RECLAMATION-REGION 4,
WEBER BASIN JOB CORPS CIVILIAN
CONSERVATION CENTER,
OGDEN, UTAH
A/SLMR NO. 204
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3284, (AFGE) SOUGHT AN ELECTION IN A UNIT COMPOSED OF ALL
PROFESSIONAL AND NONPROFESSIONAL WAGE BOARD AND GENERAL SCHEDULE
EMPLOYEES OF THE WEBER BASIN JOB CORPS CIVILIAN CONSERVATION CENTER,
OGDEN, UTAH. THE WEBER BASIN JOB CORPS CENTER IS ONE OF TWO JOB CORPS
CENTERS IN REGION 4 OF THE BUREAU OF RECLAMATION. THE ACTIVITY TOOK THE
POSITION THAT THE PETITIONED FOR UNIT WAS APPROPRIATE AND THAT THE UNIT
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE ASSISTANT SECRETARY FOUND THAT THE PETITIONED FOR UNIT WAS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS
CONNECTION, THE ASSISTANT SECRETARY NOTED THAT THE MISSION OF THE BUREAU
OF RECLAMATION WAS NATURAL RESOURCE CONSERVATION AND MANAGEMENT WHICH
DIFFERS ESSENTIALLY FROM THE JOB CORPS' MISSION OF HUMAN RESOURCE
DEVELOPMENT; THAT EMPLOYEES OF THE JOB CORPS CENTERS AND THE BUREAU OF
RECLAMATION DIFFER IN THEIR JOB CLASSIFICATIONS AND FUNCTIONS, THAT THE
JOB CORPS CENTERS IN REGION 4 ARE SEPARATELY SUPERVISED AND JOB CORPS
CENTER DIRECTORS REPORT TO THE U.S. DEPARTMENT OF LABOR AS WELL AS THE
BUREAU OF RECLAMATION, AND THAT THERE HAS BEEN NO INTERCHANGE BETWEEN
JOB CORPS CENTERS AND OTHER REGION 4 OPERATING OFFICES. IN REACHING THE
FINDING THAT A UNIT LIMITED TO EMPLOYEES OF THE WEBER BASIN JOB CORPS
CENTER IS APPROPRIATE, THE ASSISTANT SECRETARY NOTED THAT THE OTHER JOB
CORPS CENTER IN REGION 4, AT COLLBRAN, COLORADO, IS LOCATED SOME 360
MILES FROM WEBER BASIN, THAT THERE HAS BEEN NO INTERCHANGE BETWEEN THE
TWO CENTERS, AND THAT EACH CENTER IS UNDER DIFFERENT IMMEDIATE
SUPERVISION. IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND
EMPLOYEES OF THE WEBER BASIN JOB CORPS CENTER SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER
EMPLOYEES OF REGION 4 AND SUCH A UNIT OF EMPLOYEES WOULD PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE ASSISTANT SECRETARY FURTHER FOUND THAT EMPLOYEES DESIGNATED
TRAINING INSTRUCTOR (SOCIAL SKILLS) AND GROUP LEADER ARE NOT SUPERVISORS
WITHIN THE MEANING OF THE ORDER AND SHOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE. THE ASSISTANT SECRETARY CONCLUDED ALSO THAT EMPLOYEES
DESIGNATED CORPSMEN SUPERVISOR AND CORPSMEN ASSISTANT SUPERVISOR ARE
SUPERVISORS WITHIN THE MEANING OF THE ORDER AND THAT THE
PRINCIPAL-TEACHER IS A SUPERVISOR. THEREFORE, THESE CLASSIFICATIONS
WERE EXCLUDED FROM THE UNIT FOUND APPROPRIATE. IN ADDITION, THE
ASSISTANT SECRETARY FOUND THAT TEACHERS AND GUIDANCE COUNSELORS IN THE
GS-1710 CLASSIFICATION SERIES MEET THE CRITERIA FOR PROFESSIONAL
EMPLOYEES.
ACCORDINGLY, THE ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE UNIT
FOUND APPROPRIATE.
U.S. DEPARTMENT OF INTERIOR,
BUREAU OF RECLAMATION-REGION 4,
WEBER BASIN JOB CORPS CIVILIAN
CONSERVATION CENTER,
OGDEN, UTAH /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3284
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER CHESTER A. JONES.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3284, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL PROFESSIONAL AND NONPROFESSIONAL, WAGE-GRADE (WAGE BOARD) AND
GENERAL SCHEDULE EMPLOYEES, INCLUDING TEMPORARY FULL-TIME EMPLOYEES
WORKING IN EXCESS OF 90 DAYS, OF THE WEBER BASIN JOB CORPS CIVILIAN
CONSERVATION CENTER AT MILITARY SPRINGS, ODGEN, UTAH, EXCLUDING
MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, GUARDS AND SUPERVISORS AS DEFINED
IN EXECUTIVE ORDER 11491. /2/
THE ACTIVITY TAKES THE POSITION THAT THE PETITIONED FOR UNIT IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION, AND THAT SUCH A
UNIT WOULD PROMOTE EFFICIENCY OF OPERATIONS AND EFFECTIVE DEALINGS.
THE BUREAU OF RECLAMATION IS A BUREAU IN THE UNITED STATES DEPARTMENT
OF INTERIOR. IT CONSISTS OF THE OFFICE OF THE COMMISSIONER OF
RECLAMATION IN WASHINGTON, D.C.; AN ENGINEERING AND RESEARCH CENTER
LOCATED IN DENVER, COLORADO; AND SEVEN REGIONAL OFFICES, CORRESPONDING
GENERALLY TO RIVER BASINS OR COMBINATIONS OF RIVER BASINS, LOCATED
THROUGHOUT THE WESTERN UNITED STATES.
THE REGIONAL OFFICE FOR REGION 4 IS LOCATED IN SALT LAKE CITY, UTAH,
AND IS HEADED BY A REGIONAL DIRECTOR UNDER WHOM ARE NINE HEADQUARTERS
DIVISIONS. ALSO UNDER THE REGIONAL OFFICE ARE NINE OPERATING OFFICES
LOCATED THROUGHOUT THE REGION WHICH ARE HEADED BY OFFICERS WHO REPORT
DIRECTLY TO THE REGIONAL DIRECTOR. THESE INCLUDE FIVE PROJECTS OFFICES,
A DEVELOPMENT OFFICE, A POWER OPERATIONS OFFICE, AND TWO JOB CORPS
CENTERS. THE TWO JOB CORPS CENTERS ARE THE COLLBRAN JOB CORPS CENTER
NEAR COLLBRAN, COLORADO, AND THE WEBER BASIN JOB CORPS CENTER, LOCATED
NEAR OGDEN, UTAH, WHICH CONTAINS THE EMPLOYEES IN THE PETITIONED FOR
UNIT.
THE MISSION OF THE BUREAU OF RECLAMATION IS TO ENHANCE AND PROTECT
THE ENVIRONMENT AND IMPROVE THE QUALITY OF LIFE THROUGH DEVELOPMENT OF
WATER AND OTHER RELATED RESOURCES THROUGHOUT THE 17 CONTIGUOUS WESTERN
STATES AND HAWAII. THE BUREAU LOCATES, CONSTRUCTS, OPERATES AND
MAINTAINS WORKS FOR THE STORAGE, CONVERSION, AND DEVELOPMENT OF WATER
FOR THE RECLAMATION OF ARID AND SEMI-ARID LANDS. ITS PROJECTS PROVIDE
FOR IRRIGATION, MUNICIPAL AND INDUSTRIAL WATER SUPPLY, HYDRO-ELECTION
POWER GENERATION AND TRANSMISSION, WATER QUALITY IMPROVEMENT, FISH AND
WILDLIFE ENHANCEMENT, OUTDOOR RECREATION, FLOOD CONTROL, NAVIGATION AND
RIVER REGULATION AND CONTROL.
WHILE THE BUREAU OF RECLAMATION HAS AS ITS PRIMARY MISSION THE
CONSERVATION AND MANAGEMENT OF NATURAL RESOURCES, THE MISSION OF THE JOB
CORPS IS TO PREPARE DISADVANTAGED YOUNG PEOPLE BETTER FOR THE
RESPONSIBILITIES OF CITIZENSHIP AND TO INCREASE THEIR EMPLOYABILITY
THROUGH A PROGRAM OF EDUCATION, WORK TRAINING AND EXPERIENCE, AND SOCIAL
SKILLS DEVELOPMENT. THE JOB CORPS FACILITIES UNDER THE BUREAU OF
RECLAMATION ARE FUNDED FROM DEPARTMENT OF LABOR APPROPRIATIONS, WHICH
ARE TRANSFERRED JOINTLY BY THESE TWO AGENCIES. IN THIS CONNECTION,
WHILE THE HEADS OF OTHER OPERATING OFFICES IN REGION 4 REPORT TO THE
REGIONAL DIRECTOR, THE DIRECTORS OF THE TWO JOB CORPS CENTERS REPORT TO
THE DEPARTMENT OF LABOR, WHEN APPROPRIATE AND WHEN REQUIRED, AS WELL AS
TO THE REGIONAL DIRECTOR.
THE RECORD REFLECTS FURTHER THAT, IN GENERAL, THE JOB CLASSIFICATIONS
AND FUNCTIONS OF OTHER EMPLOYEES OF REGION 4 ARE SIGNIFICANTLY DIFFERENT
FROM THOSE OF THE EMPLOYEES OF THE JOB CORPS CENTERS. REGION 4 IS
STAFFED PRINCIPALLY BY EMPLOYEES SUCH AS ADMINISTRATORS, ACCOUNTANTS,
ENGINEERS, GEOLOGISTS, ECONOMISTS, ELECTRICIANS, AND CONSTRUCTION
WORKERS; WHILE THE JOB CORPS CENTERS EMPLOY PRINCIPALLY GUIDANCE
COUNSELORS, TEACHERS, AND TRAINING INSTRUCTORS. REGION 4 OF THE BUREAU
OF RECLAMATION IS CONCERNED PRINCIPALLY WITH THE DAY-TO-DAY OPERATIONS
OF DAMS, IRRIGATION AND HYDRO-ELECTRIC POWER GENERATION AND TRANSMISSION
WORKS, AND OTHER BUREAU OF RECLAMATION INSTALLATIONS; WHILE JOB CORPS
CENTERS ARE CONCERNED WITH CLASSROOM, DORMITORY, AND WORKSHOP TRAINING
SITUATIONS.
THE RECORD SHOWS ALSO THAT WHILE PERSONNEL PRACTICES ARE UNIFORM
THROUGHOUT REGION 4 AND THAT THE CENTRAL PERSONNEL OFFICE AT THE
REGIONAL HEADQUARTERS SERVES THE JOB CORPS CENTERS AND ALL THE OTHER
OPERATING OFFICES OF REGION 4, IN SUCH MATTERS AS RECRUITING, THE TWO
JOB CORPS CENTERS HAVE ONLY A LIMITED RELATIONSHIP WITH OTHER FACILITIES
OF REGION 4 OR WITH EACH OTHER. THE RECORD INDICATES ALSO THAT THE
COMPETITIVE AREA FOR PROMOTION THROUGH GS-5 AND FOR REDUCTIONS-IN-FORCE
IS LIMITED TO A JOB CORPS CENTER. AT THE TIME THE TWO JOB CORPS CENTERS
WERE ESTABLISHED SOME ADMINISTRATIVE PERSONNEL WERE RECRUITED FROM OTHER
ORGANIZATIONAL ELEMENTS OF THE BUREAU OF RECLAMATION. SINCE THAT TIME
THERE HAS BEEN NO INTERCHANGE OF PERSONNEL BETWEEN THE TWO JOB CORPS
CENTERS AND OTHER FACILITIES OF REGION 4; NOR HAS THERE BEEN
INTERCHANGE BETWEEN THE TWO JOB CORPS CENTERS INVOLVED HEREIN. /3/
THE RECORD SHOWS THAT THE CLAIMED UNIT AT THE WEBER BASIN JOB CORPS
CENTER IS LOCATED AT MILITARY SPRINGS, SEVEN MILES SOUTH OF OGDEN, UTAH,
APPROXIMATELY 35 MILES FROM THE REGIONAL OFFICE IN SALT LAKE CITY. THE
OTHER JOB CORPS CENTER IN REGION 4, THE COLLBRAN JOB CORPS CENTER IN
COLORADO, IS LOCATED SOME 360 MILES FROM THE WEBER BASIN JOB CORPS
CENTER. AS NOTED ABOVE, IN ADDITION TO THE GEOGRAPHIC SEPARATION OF THE
TWO CENTERS, THE RECORD REVEALS THAT FOR EACH OF THE JOB CORPS CENTERS
THE AREA OF CONSIDERATION FOR PROMOTIONS THROUGH GS-5, AND FOR
REDUCTIONS-IN-FORCE, IS LIMITED TO THE INSTALLATION; THERE IS A
SEPARATE ADMINISTRATIVE HEAD FOR EACH OF THE CENTERS WHO REPORTS
DIRECTLY TO THE REGIONAL OFFICE AND TO THE DEPARTMENT OF LABOR.
BASED ON THE FOREGOING, I FIND THAT THE PETITIONED FOR UNIT OF
EMPLOYEES OF THE WEBER BASIN JOB CORPS CIVILIAN CONSERVATION CENTER IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS
CONNECTION, THE EVIDENCE ESTABLISHES THAT THE MISSIONS OF THE JOB CORPS
AND OF THE BUREAU OF RECLAMATION ARE ESSENTIALLY DIFFERENT; THAT
EMPLOYEES OF THE JOB CORPS CENTERS AND OF THE BUREAU OF RECLAMATION
DIFFER IN THEIR JOB CLASSIFICATIONS AND JOB FUNCTIONS; THAT THE CENTERS
ARE SUPERVISED SEPARATELY AND ARE RESPONSIBLE TO THE DEPARTMENT OF LABOR
AS WELL AS THE BUREAU OF RECLAMATION; AND THAT THERE HAS BEEN NO
INTERCHANGE BETWEEN JOB CORPS CENTERS AND OTHER REGION 4 OPERATING
OFFICES. /4/ MOREOVER, A UNIT LIMITED TO THE EMPLOYEES OF THE WEBER
BASIN CIVILIAN CONSERVATION JOB CORPS CENTER IS APPROPRIATE IN THAT THE
RECORD REVEALS THAT THE OTHER JOB CORPS CENTER IN REGION 4, THE COLLBRAN
JOB CORPS CIVILIAN CONSERVATION CENTER, IS LOCATED SOME 360 MILES FROM
WEBER BASIN; THERE HAS BEEN NO INTERCHANGE OF EMPLOYEES BETWEEN THE TWO
CENTERS; EACH CENTER IS UNDER DIFFERENT IMMEDIATE SUPERVISION; AND THE
CENTERS REPORT INDEPENDENTLY TO THE REGIONAL OFFICE OF REGION 4 AND TO
THE DEPARTMENT OF LABOR. UNDER THESE CIRCUMSTANCES, I FIND THE
EMPLOYEES OF THE WEBER BASIN JOB CORPS INTEREST SEPARATE AND DISTINCT
FROM OTHER EMPLOYEES OF REGION 4 AND THAT SUCH A UNIT OF EMPLOYEES WILL
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL DIRECT AN ELECTION IN THE UNIT FOUND APPROPRIATE.
ELIGIBILITY ISSUES
THE RECORD DISCLOSES ALSO THAT THERE ARE ELIGIBILITY ISSUES WITH
RESPECT TO CERTAIN EMPLOYEE CLASSIFICATIONS IN THE UNIT FOUND
APPROPRIATE.
TRAINING INSTRUCTOR (SOCIAL SKILLS)
THE PARTIES TAKE NO POSITION ON THE ELIGIBILITY OF EMPLOYEES
CLASSIFIED AS TRAINING INSTRUCTOR (SOCIAL SKILLS). THE RECORD SHOWS
THAT THESE TRAINING INSTRUCTORS ARE ASSISTED BY GROUP LEADERS WHO REPORT
TO THE TRAINING INSTRUCTORS FOR PURPOSES OF TIMEKEEPING AND "LEAVE." THE
RECORD REVEALS THAT THE TRAINING INSTRUCTORS DO NOT HAVE AUTHORITY TO
HIRE, DISCHARGE, PROMOTE, DIRECT, ASSIGN, OR EVALUATE ASSIGNED GROUP
LEADERS OR MAKE EFFECTIVE RECOMMENDATIONS IN THIS REGARD. IN THESE
CIRCUMSTANCES, I FIND THAT EMPLOYEES IN THE CLASSIFICATION, TRAINING
INSTRUCTOR (SOCIAL SKILLS), ARE NOT SUPERVISORS WITHIN THE MEANING OF
THE ORDER AND SHOULD BE INCLUDED IN THE UNIT FOUND APPROPRIATE. /5/
GROUP LEADER
THE PARTIES AGREE, AND THE RECORD SUPPORTS THEIR CONTENTION, THAT THE
GROUP LEADERS ARE NONSUPERVISORY EMPLOYEES. ACCORDINGLY, GROUP LEADERS
WILL BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
CORPSMEN SUPERVISOR, CORPSMEN ASSISTANT SUPERVISOR
THE PARTIES AGREE AND THE RECORD, INCLUDING JOB DESCRIPTIONS FOR
THESE EMPLOYEE CLASSIFICATIONS, REFLECTS THAT THESE EMPLOYEES ARE
SUPERVISORS WITHIN THE MEANING OF THE ORDER. ACCORDINGLY, EMPLOYEES IN
THESE CLASSIFICATIONS WILL BE EXCLUDED FROM APPROPRIATE UNIT.
PRINCIPAL-TEACHER
THE PARTIES CONTEND THIS EMPLOYEE IS A SUPERVISOR. THE RECORD,
INCLUDING THE JOB DESCRIPTION FOR THIS EMPLOYEE CLASSIFICATION, REFLECTS
THAT HE IS A SUPERVISOR AND SHOULD BE EXCLUDED FROM THE UNIT FOUND
APPROPRIATE.
GUIDANCE COUNSELOR, GENERAL SUPPLY ASSISTANT
WHILE THE PARTIES CONTEND THAT EMPLOYEES IN THESE CLASSIFICATIONS ARE
SUPERVISORS, THERE IS INSUFFICIENT EVIDENCE AS TO THEIR DUTIES AND
RESPONSIBILITIES. THEREFORE, I SHALL MAKE NO FINDING ON THE SUPERVISORY
STATUS OF EMPLOYEES IN THESE CLASSIFICATIONS.
TEMPORARY EMPLOYEES
THE AFGE WOULD INCLUDE IN ITS CLAIMED UNIT SOME FIVE TEMPORARY
EMPLOYEES. WITH THE EXCEPTION OF ONE WAGE BOARD ELECTRICIAN, THERE IS
NO EVIDENCE IN THE RECORD REGARDING THE EXPECTANCY OF CONTINUED
EMPLOYMENT OF EMPLOYEES CLASSIFIED AS TEMPORARY. IN THESE
CIRCUMSTANCES, I MAKE NO FINDING AS TO THEIR ELIGIBILITY FOR INCLUSION
IN THE UNIT FOUND APPROPRIATE. /6/
PROFESSIONAL EMPLOYEES - TEACHERS, GUIDANCE COUNSELORS
THE PARTIES AGREE THAT TEACHERS AND GUIDANCE COUNSELORS IN THE
GS-1710 CLASSIFICATION SERIES ARE PROFESSIONAL EMPLOYEES. IN MY VIEW,
THE EVIDENCE SUPPORTS THE PARTIES' STIPULATION THAT TEACHERS AND
GUIDANCE COUNSELORS EMPLOYED AT THE WEBER BASIN JOB CORPS CIVILIAN
CONSERVATION CENTER MEET THE CRITERIA FOR PROFESSIONAL EMPLOYEES SET
FORTH IN DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, RIVERSIDE
DISTRICT AND LAND OFFICE, A/SLMR NO. 170. /7/
BASED ON THE FOREGOING, I FIND THE FOLLOWING EMPLOYEES CONSTITUTE A
UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE
MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491, AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL WAGE BOARD AND GENERAL SCHEDULE
EMPLOYEES OF THE WEBER
BASIN JOB CORPS CIVILIAN CONSERVATION CENTER AT MILITARY SPRINGS,
ODGEN, UTAH, INCLUDING
EMPLOYEES CLASSIFIED AS TRAINING INSTRUCTOR (SOCIAL SKILLS) AND GROUP
LEADERS, EXCLUDING ALL
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
AS NOTED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10(B)(4) OF
THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH EMPLOYEES
WHO ARE NOT PROFESSIONALS, UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES
OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I, THEREFORE, SHALL
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (1): ALL PROFESSIONAL EMPLOYEES OF THE WEBER BASIN JOB
CORPS CIVILIAN CONSERVATION CENTER, EXCLUDING ALL NONPROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL WAGE BOARD AND GENERAL SCHEDULE EMPLOYEES OF
THE WEBER BASIN JOB CORPS CIVILIAN CONSERVATION CENTER, EXCLUDING ALL
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE AFGE.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED BY THE
AFGE. IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP
(A) ARE CASE IN FAVOR OF INCLUSION IN THE SAME UNIT AS NONPROFESSIONALS,
THE BALLOTS OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING
GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CASE FOR
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING WHETHER OR NOT
THE AFGE WAS SELECTED BY THE PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER,
AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL WAGE BOARD AND GENERAL SCHEDULE
EMPLOYEES OF THE WEBER
BASIN JOB CORPS CIVILIAN CONSERVATION CENTER AT MILITARY SPRINGS,
OGDEN, UTAH, INCLUDING
EMPLOYEES CLASSIFIED AS TRAINING INSTRUCTOR (SOCIAL SKILLS) AND GROUP
LEADER, EXCLUDING ALL
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER, AS AMENDED:
(A) ALL WAGE BOARD AND GENERAL SCHEDULE EMPLOYEES OF THE WEBER BASIN
JOB CORPS CIVILIAN
CONSERVATION CENTER, EXCLUDING ALL PROFESSIONAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE ORDER.
(B) ALL PROFESSIONAL EMPLOYEES OF THE WEBER BASIN JOB CORPS CIVILIAN
CONSERVATION CENTER,
EXCLUDING ALL NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED
IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE, SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY
DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3284.
DATED, WASHINGTON, D.C.
SEPTEMBER 25, 1972
/1/ THE NAME OF THE ACTIVITY APPEARS AS CORRECTED AT THE HEARING.
/2/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
/3/ THE FEW TRANSFERS BETWEEN THE TWO JOB CORPS CENTERS HAVE INVOLVED
ONLY THE TOP MANAGERIAL OFFICERS OF THE CENTERS.
/4/ CF. UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE,
SCHENCK CIVILIAN CONSERVATION CENTER, NORTH CAROLINA, A/SLMR NO. 116;
UNITED STATES DEPARTMENT OF AGRICULTURE, BLACK HILLS NATIONAL FOREST,
A/SLMR NO. 58.
/5/ MOREOVER, THE RECORD INDICATES THAT ANY SUPERVISORY AUTHORITY
WHICH TRAINING INSTRUCTORS (SOCIAL SKILLS) MAY HAVE IS LIMITED IN EACH
INSTANCE TO ONE EMPLOYEE. SEE UNITED STATES DEPARTMENT OF AGRICULTURE,
NORTHERN MARKETING AND NUTRITION RESEARCH DIVISION, PEORIA, ILLINOIS,
A/SLMR NO. 120.
/6/ THE RECORD REVEALS THAT THE ELECTRICIAN IS EMPLOYED AS A
REPLACEMENT FOR A REGULAR EMPLOYEE WHO IS ON LEAVE DUE TO A DISABILITY
RESULTING FROM A WORK-RELATED ACCIDENT, AND HIS EMPLOYMENT WILL
TERMINATE UPON THE RECOVERY AND RETURN TO WORK OF THE REGULAR EMPLOYEE.
BECAUSE THE EVIDENCE SHOWS THAT THIS TEMPORARY EMPLOYEE HAS NO
REASONABLE EXPECTANCY OF CONTINUED EMPLOYMENT, I FIND HE SHOULD BE
EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
/7/ CF. ALSO DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS, NAVAJO
AREA, GALLUP, NEW MEXICO, A/SLMR NO. 99, WHICH PERTAINED TO EMPLOYEES IN
THIS JOB CLASSIFICATION SERIES. HOWEVER, IT SHOULD BE NOTED THAT, AS
INDICATED ABOVE, NO FINDING IS MADE HEREIN AS TO WHETHER GUIDANCE
COUNSELORS ARE SUPERVISORS WITHIN THE MEANING OF THE ORDER.
2 A/SLMR 203; P. 473; CASE NO. 32-2283(RO); SEPTEMBER 25, 1972.
U.S. DEPARTMENT OF THE ARMY,
PICATINNY ARSENAL,
DOVER, NEW JERSEY
A/SLMR NO. 203
THE PETITIONER, LOCAL 225, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, (AFGE), SOUGHT AN ELECTION IN A UNIT COMPOSED OF ALL
NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES OF THE ARSENAL LOCATED
GEOGRAPHICALLY AT THE PICATINNY ARSENAL, DOVER, NEW JERSEY, AND OF THE
HEADQUARTERS AND INSTALLATION SUPPORT ACTIVITY (HISA) AT THE SAME
LOCATION. THE WAGE BOARD EMPLOYEES IN THE ARSENAL AND HISA ARE
REPRESENTED CURRENTLY BY THE AFGE. THE ACTIVITY AGREED THAT THE UNIT
SOUGHT WAS APPROPRIATE. THE INTERVENOR, LOCAL 1437, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES (NFFE), CONTENDED THAT THE CLAIMED UNIT WAS
INAPPROPRIATE IN THAT THE EMPLOYEES PETITIONED FOR DO NOT SHARE A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
EMPLOYEES IN SIMILAR CLASSIFICATIONS EMPLOYED IN THE HEADQUARTERS OF THE
U.S. ARMY MUNITIONS COMMAND (MUCOM H.Q.) WHICH IS LOCATED ALSO AT THE
PICATINNY ARSENAL.
THE ASSISTANT SECRETARY FOUND THAT A UNIT LIMITED TO THE GENERAL
SCHEDULE EMPLOYEES OF THE ARSENAL AND HISA WAS NOT APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS CONNECTION, HE NOTED THAT
EMPLOYEES OF MUCOM H.Q., THE ARSENAL, AND HISA ARE SUBJECT TO THE SAME
PERSONNEL POLICIES AND PROCEDURES WHICH ARE ADMINISTERED CENTRALLY; THE
AREA OF CONSIDERATION FOR PROMOTIONS INCLUDES MUCOM H.Q., AS WELL AS THE
ARSENAL AND HISA; THERE ARE SIMILAR EMPLOYEE JOB CLASSIFICATIONS WITH
SUBSTANTIALLY THE SAME JOB FUNCTIONS IN MUCOM H.Q., HISA, AND THE
ARSENAL; THERE HAVE BEEN A NUMBER OF TRANSFERS BETWEEN THESE THREE
ELEMENTS; AND THE PROJECT MANAGERS OF MUCOM H.Q. UTILIZE THE FACILITIES
AND PERSONNEL OF THE ARSENAL IN CARRYING OUT THEIR MISSIONS.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
GENERAL SCHEDULE EMPLOYEES OF THE ARSENAL AND HISA DO NOT HAVE A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER
EMPLOYEES LOCATED AT THE PICATINNY ARSENAL AND THAT SUCH A FRAGMENTED
UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. ACCORDINGLY, THE ASSISTANT SECRETARY DISMISSED THE
PETITION.
U.S. DEPARTMENT OF THE ARMY,
PICATINNY ARSENAL,
DOVER, NEW JERSEY
AND
LOCAL NO. 225, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
AND
LOCAL 1437, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
INTERVENOR
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER CLARENCE L. RANSOME. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS OF THE
PARTIES, /1/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE AFGE SEEKS AN ELECTION IN A UNIT OF ALL NONPROFESSIONAL CLASS
ACT (GENERAL SCHEDULE) EMPLOYEES OF THE ACTIVITY, EXCLUDING MANAGEMENT
OFFICIALS AND SUPERVISORS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, GUARDS, FIRE-FIGHTERS,
EMPLOYEES OF THE MICRODATA BRANCH AND EMPLOYEES WHOSE PRIMARY FUNCTION
IS THE PREPARATION OF TECHNICAL DRAWINGS, IN INCLUDING ILLUSTRATORS
(TECHNICAL EQUIPMENT), MECHANICAL ENGINEERING TECHNICIANS, (DRAFTING),
ENGINEERING DRAFTSMEN, TELEPHONE OPERATORS, AND ALL WAGE BOARD
EMPLOYEES, TEMPORARY EMPLOYEES AND INTERNS. ALSO EXCLUDED ARE EMPLOYEES
OF THE FOLLOWING TENANT ACTIVITIES SERVICED BY PICATINNY ARSENAL:
HEADQUARTERS, U.S. ARMY MUNITIONS COMMAND, OFFICE OF USAMC PROJECT
MANAGER FOR SELECTED AMMUNITION, OFFICE OF USAMC PROJECT MANAGER FOR
2.75" ROCKET SYSTEM, OFFICE OF USAMC PRODUCT MANAGER FOR SAFEGUARD
MUNITIONS, USAMC SECURITY FIELD OFFICE, U.S. ARMY SPECIAL SECURITY
DEPARTMENT, AND U.S. MARINE CORPS RESERVE TRAINING CENTER. /2/
THE NFFE CONTENDS THAT THE UNIT SOUGHT BY THE AFGE IS NOT APPROPRIATE
IN THAT EMPLOYEES IN THE PROPOSED UNIT DO NOT SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM EMPLOYEES
IN SIMILAR CLASSIFICATIONS EMPLOYED IN THE HEADQUARTERS OF U.S. ARMY
MUNITIONS COMMAND AND FROM PROFESSIONAL EMPLOYEES OF THE ACTIVITY. THE
ACTIVITY IS OF THE VIEW THAT THE UNIT SOUGHT BY AFGE IS APPROPRIATE.
THE THREE MAIN ORGANIZATIONAL ELEMENTS LOCATED GEOGRAPHICALLY AT THE
PICATINNY ARSENAL, DOVER, NEW JERSEY ARE: THE UNITED STATES ARMY
MUNITIONS COMMAND HEADQUARTERS, HEREIN CALLED MUCOM H.Q., AN ARSENAL
UNDER MUCOM H.Q., HEREIN CALLED THE ARSENAL; AND A HEADQUARTERS AND
INSTALLATION SUPPORT ACTIVITY, HEREIN CALLED HISA. THE EMPLOYEES SOUGHT
BY THE AFGE INCLUDE ALL OF THE GENERAL SCHEDULE EMPLOYEES OF THE ARSENAL
AND HISA. ON THE OTHER HAND, THE AFGE DOES NOT SEEK ANY OF THE
EMPLOYEES OF MUCOM H.Q. /3/ THERE IS NO HISTORY OF BARGAINING WITH
RESPECT TO THE PETITIONED FOR EMPLOYEES. HOWEVER, THE RECORD
ESTABLISHES THAT FOUR LABOR ORGANIZATIONS /4/ HAVE BEEN ACCORDED
EXCLUSIVE RECOGNITION IN SEVEN SEPARATE UNITS AT THE PICATINNY ARSENAL.
IN THIS CONNECTION, THE RECORD REVEALS FURTHER THAT ALL THE WAGE BOARD
EMPLOYEES OF THE ARSENAL AND OF HISA CURRENTLY ARE INCLUDED IN
EXCLUSIVELY RECOGNIZED UNITS, BUT THAT NONE OF THE WAGE BOARD OR GENERAL
SCHEDULE EMPLOYEES OF MUCOM H.Q. ARE IN EXCLUSIVELY RECOGNIZED UNITS.
THE MUNITIONS COMMAND IS ONE OF EIGHT COMMODITY COMMANDS UNDER THE
ARMY MATERIEL COMMAND. MUCOM H.Q., LOCATED AT THE PICATINNY ARSENAL,
HAS AS ITS MISSION THE LIFE-CYCLE MANAGEMENT OF ASSIGNED MUNITIONS,
I.E., PROCUREMENT, PRODUCTION, INVENTORY CONTROL, AND MAINTENANCE. IN
PERFORMANCE OF ITS MISSION IT CONSTITUTES THE HEADQUARTERS FOR A
NATIONWIDE AMMUNITION PLANT COMPLEX WHICH INCLUDES THREE ARSENALS
(INCLUDING THE ARSENAL AT PICATINNY) AND THE AMMUNITION PROCUREMENT AND
SUPPLY AGENCY, WHICH MANAGES 24 GOVERNMENT OWNED, CONTRACTOR OPERATED,
MUNITIONS PLANTS. THERE ARE FOUR PROJECT MANAGERS ORGANIZATIONALLY
ATTACHED TO MUCOM H.Q. WHO HAVE A MANAGERIAL RESPONSIBILITY FOR CONTROL
OF FUNDS AND WORK PERFORMED ON SPECIFIC PROJECTS AND WHO REPORT TO THE
COMMANDING GENERAL, MUNITIONS COMMAND.
THE ARSENAL IS ONE OF FOUR PRINCIPAL INSTALLATIONS CHARGED WITH
PHYSICAL IMPLEMENTATION OF THE MUCOM MISSION. ITS MISSION IS RESEARCH
AND DEVELOPMENT AND IT IS THE DEVELOPMENT AND ENGINEERING CENTER FOR
NUCLEAR MUNITIONS, BOMBS, MINES, GRENADES, PYROTECHNICS, FUSES, ROCKETS,
AND ARTILLERY AND MORTAR AMMUNITION.
HISA IS ANOTHER SUBORDINATE COMMAND LOCATED AT THE PICATINNY ARSENAL
AND IS COMPRISED OF TWO FORMER COMPONENTS OF THE ARSENAL; THE STAFF
SERVICES OFFICE AND THE INSTALLATION SUPPORT ACTIVITY. AS A RESULT OF
AN ARMY MATERIEL COMMAND REORGANIZATION HISA BECAME OPERATIONAL ON JUNE
25, 1971. THE ARSENAL AND HISA ARE UNDER SEPARATE COMMANDING OFFICERS,
WHO REPORT TO THE COMMANDING GENERAL, MUNITIONS COMMAND. THE MISSION OF
HISA, IS TO FURNISH THE PHYSICAL PLANT AND ADMINISTRATIVE AND LOGISTICAL
SUPPORT TO MUCOM H.Q., THE ARSENAL, AND TENANT ACTIVITIES LOCATED AT
PICATINNY ARSENAL. SUCH SUPPORT FUNCTIONS INCLUDE EQUIPMENT MANAGEMENT,
NON-APPROPRIATED FUND ACTIVITIES, FAMILY HOUSING, SUPPLY,
TRANSPORTATION, PLANT ENGINEERING AND MAINTENANCE, PROPERTY DISPOSAL,
COMMUNICATIONS, PRINTING, MAIL, INTERNAL SECURITY AND INTELLIGENCE.
THE RECORD REFLECTS THAT THERE IS A SINGLE CENTRAL CIVILIAN PERSONNEL
OFFICE ORGANIZATIONALLY LOCATED AT PICATINNY ARSENAL WHICH SERVICES THE
EMPLOYEES OF THE ARSENAL, MUCOM H.Q., AND HISA. THE EMPLOYEES OF THESE
THREE ORGANIZATIONAL ELEMENTS ARE SUBJECT TO COMMON PERSONNEL POLICIES
AND PRACTICES. ALTHOUGH, SINCE THE RECENT ESTABLISHMENT OF HISA, THERE
ARE NOW THREE COMPETITIVE AREAS FOR THE PURPOSE OF "BUMPING" IN
REDUCTION-IN-FORCE ACTIONS, THE ARSENAL, MUCOM H.Q., AND HISA CONSTITUTE
A SINGLE AREA OF CONSIDERATION WITH RESPECT TO PROMOTIONS. IN ADDITION,
THE RECORD DISCLOSES THAT THERE ARE TRANSFERS OF EMPLOYEES BETWEEN THE
THREE ELEMENTS AND THAT TEMPORARY DETAILS TO OTHER ORGANIZATIONAL
ELEMENTS OCCUR. THE RECORD INDICATES THAT THE CIVILIAN EMPLOYEES OF
MUCOM H.Q., THE ARSENAL, AND HISA WORK IN CLOSE GEOGRAPHICAL PROXIMITY,
SHARE COMMON FACILITIES, SUCH AS CAFETERIAS AND THE CREDIT UNION, AND
ARE EMPLOYED UNDER SIMILAR WORKING CONDITIONS. MOREOVER, IT APPEARS
FROM THE RECORD THAT THERE ARE NONPROFESSIONAL GENERAL SCHEDULE
EMPLOYEES AT MUCOM H.Q., WITH JOB SKILLS, DUTIES AND QUALIFICATIONS, AS
WELL JOB CLASSIFICATIONS, WHICH ARE SIMILAR TO THOSE OF THE GENERAL
SCHEDULE EMPLOYEES IN THE CLAIMED UNIT LOCATED IN THE ARSENAL AND HISA.
THE RECORD REFLECTS ALSO THAT THE ARSENAL IN THE ACCOMPLISHMENT OF THEIR
MISSIONS AND, AS NOTED ABOVE, HISA PROVIDES SERVICES AND FACILITIES FOR
MUCOM H.Q., AS WELL AS THE ARSENAL.
BASED ON THE FOREGOING, I FIND THAT A UNIT LIMITED TO THE GENERAL
SCHEDULE EMPLOYEES OF THE ARSENAL AND HISA IS NOT APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS REGARD, AS NOTED ABOVE,
EMPLOYEES OF MUCOM H.Q., THE ARSENAL, AND HISA ARE SUBJECT TO THE SAME
PERSONNEL POLICIES AND PROCEDURES WHICH ARE ADMINISTERED CENTRALLY; THE
AREA OF CONSIDERATION FOR PROMOTIONS INCLUDES MUCOM H.Q., AS WELL AS THE
ARSENAL AND HISA; THERE ARE SIMILAR EMPLOYEE JOB CLASSIFICATIONS WITH
SUBSTANTIALLY THE SAME JOB FUNCTIONS IN MUCOM H.Q., HISA, AND THE
ARSENAL; THERE HAVE BEEN A NUMBER OF TRANSFERS BETWEEN THESE THREE
ELEMENTS; AND THE PROJECT MANAGERS OF MUCOM H.Q. UTILIZE THE FACILITIES
AND PERSONNEL OF THE ARSENAL IN CARRYING OUT THEIR MISSIONS.
IN THESE CIRCUMSTANCES, I FIND THAT THE GENERAL SCHEDULE EMPLOYEES OF
THE ARSENAL AND HISA DO NOT HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES LOCATED AT PICATINNY
ARSENAL. FURTHER, IN MY VIEW, SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I
SHALL ORDER THAT THE AFGE'S PETITION HEREIN BE DISMISSED. /5/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 32-2283(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 25, 1972
/1/ THE PETITIONER, LOCAL NO. 225, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, MOVED THAT THE BRIEF OF THE
INTERVENOR, LOCAL 1437, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN
CALLED NFFE, BE REJECTED AS A REPLY BRIEF. I FIND THAT THE NFFE'S BRIEF
WAS FILED TIMELY AND DID NOT CONSTITUTE A REPLY BRIEF. ACCORDINGLY, THE
AFGE'S MOTION IS HEREBY DENIED.
/2/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/3/ IN ADDITION TO THE THREE PRINCIPAL ORGANIZATIONAL ELEMENTS AT
PICATINNY ARSENAL, THERE ARE SOME TENANT ORGANIZATIONS AT THE ACTIVITY.
THE PETITIONED FOR UNIT DOES NOT INCLUDE ANY EMPLOYEES OF THE TENANT
ORGANIZATIONS, NOR DOES IT INCLUDE EMPLOYEES OF THE ARSENAL AND HISA WHO
ARE COVERED BY EXCLUSIVE RECOGNITIONS.
/4/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; FEDERAL UNIFORMED
FIRE FIGHTERS; OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION;
AND FEDERAL EMPLOYEES COUNCIL.
/5/ IN VIEW OF THIS DISPOSITION, IT WAS CONSIDERED UNNECESSARY TO
MAKE DETERMINATIONS CONCERNING THE ELIGIBILITY OF CERTAIN DISPUTED
EMPLOYEE CLASSIFICATIONS.
2 A/SLMR 202; P. 471; CASE NO. 50-5593(25); SEPTEMBER 25, 1972.
U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT,
INDIANAPOLIS, INDIANA AREA OFFICE
A/SLMR NO. 202
THIS CASE INVOLVED A CLARIFICATION OF UNIT (CU) PETITION FILED BY THE
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD), INDIANAPOLIS,
INDIANA AREA OFFICE, SEEKING CLARIFICATION OF AN EXISTING EXCLUSIVELY
RECOGNIZED BARGAINING UNIT IN ORDER TO HAVE IT CONFORM TO CHANGES IN ITS
ORGANIZATIONAL STRUCTURE. SPECIFICALLY, THE ACTIVITY CONTENDED THAT THE
CURRENTLY CERTIFIED UNIT REPRESENTED BY LOCAL 1803, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES (NFFE) WAS NO LONGER APPROPRIATE INASMUCH AS
PURSUANT TO AN AGENCY REORGANIZATION, THE FEDERAL HOUSING ADMINISTRATION
INDIANAPOLIS INSURING OFFICE, THE ACTIVITY IN WHICH THE CERTIFIED UNIT
EXISTED, HAD BEEN SUPERSEDED BY THE HUD INDIANAPOLIS AREA OFFICE. IT
WAS ASSERTED THAT SUCH REORGANIZATION ADDED NEW PROGRAMS AND REQUIRED
NEW EMPLOYEES AND THAT AN APPROPRIATE UNIT NOW WOULD CONSIST OF ALL
ELIGIBLE EMPLOYEES OF THE HUD AREA OFFICE. THE NFFE CONTENDED THAT THE
ADDITIONAL EMPLOYEES CONSTITUTED AN ACCRETION TO ITS CERTIFIED UNIT, AND
THAT AN INTEGRATION OF THE WORK FORCE EXISTED WHICH WOULD BE SUFFICIENT
TO ESTABLISH A COMMUNITY OF INTEREST AMONG ALL EMPLOYEES OF THE AREA
OFFICE. IT FURTHER CONTENDED THAT A CERTIFICATION BAR SHOULD HAVE
PRECLUDED THE FILING OF THE ACTIVITY'S PETITION.
THE ASSISTANT SECRETARY NOTED THAT IN HEADQUARTERS, U.S. ARMY
AVIATION SYSTEMS COMMAND, ST. LOUIS MISSOURI, A/SLMR NO. 160, IT WAS
FOUND THAT A RECOGNIZED UNIT IS NO LONGER APPROPRIATE DUE TO A
REORGANIZATION. HOWEVER, RATHER THAN DISMISS THE PETITION FOR TECHNICAL
REASONS, HE TREATED THE HUD PETITION AS IF IT HAD BEEN FILED
APPROPRIATELY AS AN RA PETITION.
THE EVIDENCE ESTABLISHED THAT THE EMPLOYEES IN THE CERTIFIED UNIT
GENERALLY CONTINUED TO PERFORM THE SAME DUTIES AS THEY HAD PRIOR TO THE
REORGANIZATION, WITH THE NEW EMPLOYEES PERFORMING THE ADDED FUNCTIONS.
FURTHER, THE RECORD FAILED TO REVEAL ANY SIGNIFICANT DEGREE OF
INTERCHANGE, TRANSFER OR COMMINGLING BETWEEN THE NEW HUD EMPLOYEES AND
THE EMPLOYEES OF THE FORMER INSURING OFFICE.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT DESPITE
THE REORGANIZATION, THERE STILL REMAINED A VIABLE AND IDENTIFIABLE GROUP
OF EMPLOYEES PERFORMING THE DUTIES OF THE FORMER FHA INSURING OFFICE.
HE, THEREFORE, FOUND INSUFFICIENT BASIS TO SUPPORT THE ACTIVITY'S
CONTENTION THAT THE UNIT REPRESENTED BY THE NFFE WAS NO LONGER
APPROPRIATE. ACCORDINGLY, HE ORDERED THAT THE PETITION IS DISMISSED.
U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT,
INDIANAPOLIS, INDIANA AREA OFFICE
AND
LOCAL 1803, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXCHANGE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER DAVID R.
SHADRACH. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY LOCAL
1803, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN CALLED NFFE, THE
ASSISTANT SECRETARY FINDS:
THE PETITIONER, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
INDIANAPOLIS, INDIANA AREA OFFICE, HEREIN CALLED HUD AREA OFFICE, FILED
THE SUBJECT PETITION FOR CLARIFICATION OF UNIT (CU) SEEKING TO CLARIFY
AN EXISTING EXCLUSIVELY RECOGNIZED BARGAINING UNIT IN ORDER TO HAVE IT
CONFORM TO CHANGES IN ITS ORGANIZATIONAL STRUCTURE. SPECIFICALLY, THE
ACTIVITY CONTENDS THAT THE CURRENTLY CERTIFIED UNIT REPRESENTED BY THE
NFFE IS NO LONGER APPROPRIATE BECAUSE, PURSUANT TO AN AGENCY
REORGANIZATION, THE FORMER FEDERAL HOUSING ADMINISTRATION (FHA)
INDIANAPOLIS INSURING OFFICE-- THE ACTIVITY IN WHICH THE CERTIFIED UNIT
EXISTED-- HAS BEEN SUPERSEDED BY THE HUD AREA OFFICE. SUCH
REORGANIZATION RESULTED IN THE ADDITION OF NEW PROGRAMS AS WELL AS THE
EMPLOYMENT OF NEW EMPLOYEES TO IMPLEMENT THEM. IN THESE CIRCUMSTANCES,
THE ACTIVITY CONTENDS THAT A QUESTION CONCERNING REPRESENTATION IS
RAISED AND IT SUBMITS THAT AN APPROPRIATE UNIT NOW WOULD CONSIST OF ALL
ELIGIBLE EMPLOYEES OF THE HUD AREA OFFICE.
THE NFFE CONTENDS THAT THE ADDITION OF NEW EMPLOYEES AND NEW
FUNCTIONS HAS NOT RADICALLY CHANGED THE COMPOSITION OF THE EXISTING
UNIT, THAT ANY NEW EMPLOYEES HAVE BEEN INTERMINGLED WITH THE UNIT
EMPLOYEES, THAT MANY OF THE UNIT EMPLOYEES CONTINUE TO PERFORM THE
FUNCTIONS THEY PERFORMED PRIOR TO THE REORGANIZATION AND THAT PERSONNEL
PRACTICES, POLICIES AND WORKING CONDITIONS HAVE REMAINED THE SAME.
ADDITIONALLY, THE NFFE CONTENDS THAT THE ACTIVITY'S PETITION IS BARRED
UNDER THE SECTION 202.3(B) OF THE ASSISTANT SECRETARY'S REGULATIONS. /1/
AS STATED IN HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST.
LOUIS, MISSOURI, A/SLMR NO. 160, A CU PETITION IS A VEHICLE BY WHICH
PARTIES MAY SEEK TO ILLUMINATE AND CLARIFY, CONSISTENT WITH THEIR
INTENT, THE UNIT INCLUSIONS OR EXCLUSIONS AFTER THE BASIC QUESTION OF
REPRESENTATION HAS BEEN RESOLVED. IT IS NOT THE PROPER MECHANISM TO
QUESTION THE APPROPRIATENESS OF AN EMPLOYEE BARGAINING UNIT OR TO
RESOLVE ISSUES CONCERNING WHETHER OR NOT THE UNIT EMPLOYEES DESIRE TO
CONTINUE TO BE REPRESENTED EXCLUSIVELY. IN THE SUBJECT CASE, THE
ACTIVITY, BY SEEKING A DETERMINATION THAT THE EXCLUSIVELY RECOGNIZED
UNIT IS NO LONGER APPROPRIATE, IS, IN EFFECT, ATTEMPTING TO RAISE A
QUESTION CONCERNING REPRESENTATION. UNDER SECTION 202.2(B) OF THE
ASSISTANT SECRETARY'S REGULATIONS, THE SOLE PROCEDURE AVAILABLE TO AN
AGENCY OR ACTIVITY TO ENABLE IT TO RAISE A QUESTION CONCERNING
REPRESENTATION IS A PETITION FOR AN ELECTION TO DETERMINE IF A LABOR
ORGANIZATION SHOULD CEASE TO BE THE EXCLUSIVE REPRESENTATIVE (RA). /2/
HOWEVER, IN THE PARTICULAR CIRCUMSTANCES OF THE INSTANT CASE, I AM OF
THE OPINION THAT TO DISMISS THE PETITION FILED BY THE ACTIVITY AT THIS
POST-HEARING STAGE OF THE PROCEEDINGS ON THE BASIS THAT IT FILED THE
WRONG TYPE OF PETITION WOULD BE OVERLY TECHNICAL AND IMPROPER.
CONSEQUENTLY, IN MY CONSIDERATION OF THIS CASE, I SHALL TREAT THE
PETITION AS IF IT HAD BEEN FILED AS AN RA PETITION. /3/
THE RECORD REVEALS THAT IN 1970 HUD BEGAN A REORGANIZATION WHICH WAS
DESIGNED TO DELEGATE MORE CONTROL OF ITS OPERATIONS TO REGIONAL AND AREA
OFFICE LEVELS. AS PART OF THIS REORGANIZATION, IN SEPTEMBER 1971, THE
FHA INDIANAPOLIS INSURING OFFICE WAS UPGRADED TO THE STATUS OF A HUD
AREA OFFICE. THE FUNCTION OF THE FHA INSURING OFFICE WAS TO INSURE
MORTGAGES ON SINGLE-AND MULTIPLE-FAMILY HOUSING UNITS. THE HUD AREA
OFFICE INCLUDES THIS FUNCTION AND, IN ADDITION, IS RESPONSIBLE FOR OTHER
HUD PROGRAMS, INCLUDING URBAN RENEWAL, MODEL CITIES, PUBLIC FACILITIES,
LOW-RENT, AND COMPREHENSIVE PLANNING.
ON JUNE 8, 1971, PRIOR TO THE ABOVE-NOTED REORGANIZATION, THE NFFE
WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF APPROXIMATELY
NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF THE FHA INDIANAPOLIS
INSURING OFFICE. THE RECORD REVEALS THAT IN NOVEMBER 1971 WHEN THE CU
PETITION IN THE SUBJECT CASE WAS FILED THERE WERE APPROXIMATELY 142
EMPLOYEES IN THE HUD AREA OFFICE PERFORMING IN THE ABOVE-MENTIONED
PROGRAMS.
THE RECORD DISCLOSES THAT THE AGENCY REORGANIZATION HAS NOT AFFECTED
SUBSTANTIALLY THE TERMS AND CONDITIONS OF EMPLOYMENT OF THE FORMER
INSURING OFFICE EMPLOYEES. THUS, THE EVIDENCE INDICATES THAT A
SUBSTANTIAL MAJORITY OF THE HUD AREA OFFICE EMPLOYEES ARE FORMER FHA
INSURING OFFICE EMPLOYEES, THAT VIRTUALLY ALL OF THEM ARE ENGAGED IN
PERFORMING THE CONTINUING FHA RESPONSIBILITIES IN THE SAME JOBS AND
OFTEN UNDER THE SAME IMMEDIATE SUPERVISION. ALSO, IT APPEARS FROM THE
RECORD THAT FEW FORMER FHA EMPLOYEES HAVE BEEN TRANSFERRED INTO THE
NEWLY ADDED HUD-TYPE PROGRAMS. WHILE THE ACTIVITY INDICATED ITS
INTENTION TO CROSS-TRAIN FHA EMPLOYEES SO THAT, ULTIMATELY, THEY CAN BE
UTILIZED IN THE HUD SOCIAL ORIENTED PROGRAMS, IT APPEARS THAT SUCH
TRAINING HAS NOT YET TAKEN PLACE BUT, RATHER, WILL BE EFFECTUATED IN THE
FUTURE UNDER AN AREA OFFICE TRAINING PROGRAM. IN SUM, THEREFORE, THE
RECORD INDICATES THAT THE SAME INSURING OFFICE FUNCTIONS ARE BEING
PERFORMED BY THE UNIT EMPLOYEES OF THE FORMER INSURING OFFICE AND THAT
THE ADDED PROGRAMS ARE BEING CARRIED OUT BY NEW EMPLOYEES. IN ADDITION,
THE EVIDENCE DISCLOSES THAT THE TRANSFER OF EMPLOYEES FROM ONE PROGRAM
TO THE OTHER HAS BEEN MINIMAL.
UNDER THE CIRCUMSTANCES PRESENTED IN THIS CASE, I FIND INSUFFICIENT
BASIS TO SUPPORT THE ACTIVITY'S CONTENTION THAT THE UNIT REPRESENTED BY
THE NFFE IS NO LONGER APPROPRIATE. THUS, THE EVIDENCE ADDUCED AT THE
HEARING ESTABLISHES THAT, NOTWITHSTANDING THE REORGANIZATION, THERE
STILL REMAINS A VIABLE AND IDENTIFIABLE GROUP OF EMPLOYEES PERFORMING
THE FORMER FHA INSURING OFFICE FUNCTIONS. MOREOVER, THE EVIDENCE FAILS
TO REVEAL ANY SIGNIFICANT DEGREE OF INTERCHANGE, TRANSFER OR COMMINGLING
BETWEEN THE NEW EMPLOYEES AND THE EMPLOYEES OF THE FORMER INSURING
OFFICE. IN THESE CIRCUMSTANCES, I SHALL DISMISS THE PETITION HEREIN.
/4/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 50-5593(25) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 25, 1972
/1/ SECTION 202.3(B) PROVIDES, IN PERTINENT PART, "WHEN THERE IS A
RECOGNIZED OR CERTIFIED EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, A
PETITION WILL NOT BE CONSIDERED TIMELY IF FILED WITHIN TWELVE (12)
MONTHS AFTER THE GRANT OF EXCLUSIVE RECOGNITION OR CERTIFICATION AS THE
EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT . . . "
/2/ SECTION 202.2(B) PROVIDES, IN PERTINENT PART, THAT AN AGENCY OR
ACTIVITY SHOULD SUPPORT AN RA PETITION WITH A STATEMENT THAT IS HAS GOOD
FAITH DOUBT THAT THE CURRENTLY RECOGNIZED OR CERTIFIED LABOR
ORGANIZATION REPRESENTS A MAJORITY OF THE EMPLOYEES IN THE UNIT.
/3/ CF. HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST.
LOUIS, MISSOURI, CITED ABOVE.
/4/ IN VIEW OF THE FINDING HEREIN THAT THE EXISTING CERTIFIED UNIT
HAS REMAINED VIABLE AND IDENTIFIABLE DESPITE THE AGENCY REORGANIZATION,
IT WAS UNNECESSARY TO DECIDE THE EFFECT, IF ANY, THE PRESCRIBED
CERTIFICATION BAR RULE WOULD HAVE ON THE SUBJECT PETITION IF THE SCOPE
AND CHARACTER OF THE UNIT HAD BEEN CHANGED.
2 A/SLMR 201; P. 468; CASE NO. 31-5476; SEPTEMBER 25, 1972.
U.S. NAVAL AIR STATION,
QUONSET POINT, RHODE ISLAND
A/SLMR NO. 201
THIS CASE INVOLVES A SEVERANCE REQUEST BY THE INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS, LOCAL F-158, AFL-CIO (IAFF), FOR A UNIT OF
FIRE FIGHTERS CURRENTLY INCLUDED IN AN ACTIVITY-WIDE UNIT REPRESENTED BY
THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, R1-7 (NAGE). THE
ACTIVITY AND NAGE TOOK THE POSITION THAT THE FIRE FIGHTERS SHARED A
COMMUNITY OF INTEREST WITH OTHER EMPLOYEES IN THE OVERALL UNIT, THAT
THERE HAS BEEN A STABLE BARGAINING RELATIONSHIP FOR MANY YEARS AND THAT
THERE ARE NO UNUSUAL CIRCUMSTANCES WHICH WOULD WARRANT SEVERANCE.
THE ASSISTANT SECRETARY, APPLYING HIS POLICY ENUNCIATED IN UNITED
STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, DENIED THE
SEVERANCE REQUEST AND DISMISSED IAFF'S PETITION. IN REACHING HIS
DECISION, THE ASSISTANT SECRETARY CONSIDERED THE FACT THAT THERE ARE
PRESENTLY FOUR STEWARDS WHO ARE IN THE FIRE FIGHTER CLASSIFICATION;
THAT GRIEVANCES HAVE BEEN HANDLED BY THE NAGE FOR EMPLOYEES IN THE
SECURITY DEPARTMENT; AND THAT THE IAFF HAD NOT PRESENTED ANY EVIDENCE
THAT THE NAGE REFUSED OR NEGLECTED TO REPRESENT ANY EMPLOYEES IN THE
CLAIMED UNIT.
U.S. NAVAL AIR STATION,
QUONSET POINT, RHODE ISLAND /1/
AND
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL F-158, AFL-CIO
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, R1-7
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER THOMAS W. CAMPBELL. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS OF THE
ACTIVITY AND THE PETITIONER, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,
LOCAL F-158, AFL-CIO, HEREIN CALLED IAFF, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE IAFF SEEKS TO SEVER A UNIT OF ALL FIRE FIGHTERS IN THE
CLASSIFICATIONS GS-3 TRAINEE, GS-4 FIRE FIGHTER GENERAL, GS-5 FIRE
FIGHTER GENERAL, GS-6 CAPTAIN, /2/ AND GS-7 INSPECTOR, EMPLOYED AT THE
U.S. NAVAL AIR STATION, QUONSET POINT, RHODE ISLAND, FROM AN
ACTIVITY-WIDE UNIT OF EMPLOYEES CURRENTLY REPRESENTED ON AN EXCLUSIVE
BASIS BY THE INTERVENOR, THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, R1-7, HEREIN CALLED NAGE. IN THIS REGARD, THE IAFF CONTENDS
THAT THE CLAIMED EMPLOYEES WOULD CONSTITUTE AN APPROPRIATE UNIT AND THAT
THEY HAVE NOT BEEN REPRESENTED EFFECTIVELY AND FAIRLY BY THE NAGE.
IN 1966 THE NAGE WAS GRANTED EXCLUSIVE RECOGNITION IN AN
ACTIVITY-WIDE UNIT, COVERING ALL EMPLOYEES, EXCEPT SOME 48 EMPLOYEES WHO
WERE ALREADY REPRESENTED IN EXCLUSIVELY RECOGNIZED UNITS. SINCE THE
TIME EXCLUSIVE RECOGNITION WAS GRANTED TO THE NAGE, COLLECTIVE
BARGAINING AGREEMENTS CONTINUALLY HAVE BEEN IN EFFECT. /3/
THE ACTIVITY TAKES THE POSITION THAT: (1) THE COMMUNITY OF INTEREST
OF THE FIRE FIGHTERS IS SUBMERGED IN THE BROADER COMMUNITY OF INTEREST
OF ALL ACTIVITY EMPLOYEES REPRESENTED BY THE NAGE; (2) THERE HAS BEEN A
STABLE BARGAINING HISTORY WITH THE NAGE FOR MANY YEARS; (3) THERE ARE
NO UNUSUAL CIRCUMSTANCES THAT WOULD WARRANT A CARVE-OUT; AND (4) THE
FACTS IN THIS CASE ARE NOT DISTINGUISHABLE FROM OTHER DECISIONS OF THE
ASSISTANT SECRETARY IN WHICH HE REFUSED TO CARVE OUT EMPLOYEES FROM
EXCLUSIVELY RECOGNIZED UNITS. THE NAGE AGREES WITH THE ACTIVITY'S
POSITION AND ALSO NOTES THAT THE FIRE FIGHTERS IN THE CLAIMED UNIT ARE
REPRESENTED PRESENTLY BY FOUR STEWARDS AND THAT IT (THE NAGE) HAS
REPRESENTED THE FIRE FIGHTERS IN THE PAST AND WILL CONTINUE TO DO SO IN
THE FUTURE.
THE MISSION OF THE NAVAL AIR STATION AT QUONSET POINT IS TO PROVIDE
ADMINISTRATIVE LOGISTIC SUPPORT AND OPERATIONAL FACILITIES TO THE
OPERATING FORCES AND TENANT COMMANDS /4/ LOCATED AT ITS FACILITY. THERE
ARE APPROXIMATELY 1,126 EMPLOYEES LOCATED AT THE ACTIVITY IN SEVERAL
DEPARTMENTS, SUCH AS ADMINISTRATION, COMPTROLLER, AIRCRAFT MAINTENANCE,
AIR OPERATIONS, PUBLIC WORKS, SUPPLY AND SECURITY.
THE FIRE FIGHTERS INVOLVED HEREIN WORK IN THE FIRE DIVISION OF THE
SECURITY DEPARTMENT, WHICH ALSO CONTAINS AN ADMINISTRATIVE DIVISION AND
AN INVESTIGATIVE DIVISION. THE MISSION OF THE FIRE DIVISION IS TO
PROVIDE FIRE PROTECTION FOR THE ACTIVITY AND ITS TENANTS. IT ALSO
PROVIDES ASSISTANCE TO 26 SURROUNDING CIVILIAN COMMUNITIES. THE FIRE
DIVISION IS COMPOSED OF A STRUCTURAL BRANCH, WHICH IS RESPONSIBLE FOR
FIGHTING FIRES IN BUILDINGS AND STRUCTURES, AND AN AIRPORT BRANCH, WHICH
IS EXCLUSIVELY ENGAGED IN FIRE PROTECTION WITH RESPECT TO THE AIR FIELD
IN THE EVENT OF A CRASH OR OIL SPILL. FIRE FIGHTERS IN THE STRUCTURAL
BRANCH WORK OUT OF TWO STATIONS, ONE AT THE NAVAL AIR STATION AND ONE AT
DAVISVILLE, WHILE FIRE FIGHTERS IN THE AIRPORT BRANCH WORK AT STATION
NO. 3 LOCATED IN THE AIR OPERATIONS BUILDING, WHICH HOUSES ALSO AIR
OPERATION PERSONNEL, TOWER PERSONNEL, PHOTOGRAPHERS AND ADMINISTRATIVE
PERSONNEL.
THERE ARE A TOTAL OF 88 EMPLOYEES IN THE FIRE DIVISION, INCLUDING THE
FIRE CHIEF (GS-11) AND TWO SUPERVISORY FIRE FIGHTERS (GS-8). AS NOTED
ABOVE, THEY ARE HOUSED AT THREE STATIONS. FIRE FIGHTERS WORK THREE
24-HOUR SHIFTS PER WEEK, FOR A TOTAL OF 72 HOURS, AND RECEIVE A 22 1/2
PERCENT DIFFERENTIAL FOR SUCH SHIFT WORK. IN ADDITION TO FIRE FIGHTERS,
THE RECORD REVEALS THAT EMPLOYEES IN THE PUBLIC WORKS DEPARTMENT'S
UTILITY DIVISION WORK VARIOUS SHIFTS, AS DO EMPLOYEES IN THE DATA
PROCESSING AND COMMUNICATIONS DEPARTMENTS. LIKE THE FIRE FIGHTERS,
THESE EMPLOYEES RECEIVE A DIFFERENTIAL IN PAY. /5/ THE RECORD REVEALS
ALSO THAT, IN ADDITION TO FIRE FIGHTERS, OTHER ACTIVITY EMPLOYEES, SUCH
AS THOSE IN MAINTENANCE, SNOW REMOVAL, COMMUNICATIONS AND ITS TELEPHONE
OPERATORS, WORK DURING INCLEMENT WEATHER CONDITIONS WHEN OTHER
NON-ESSENTIAL EMPLOYEES ARE RELEASED FROM WORK.
THE RECORD DISCLOSES THAT THE CIVILIAN PERSONNEL OFFICE HANDLES THE
PERSONNEL FUNCTIONS, SUCH AS STAFFING, REDUCTIONS IN FORCE, PROMOTIONS,
POSITION CLASSIFICATIONS, TRANSFERS, ETC., FOR ALL EMPLOYEES ON THE
BASE, INCLUDING FIRE FIGHTERS. IN THIS CONNECTION, SINCE 1967 THERE
HAVE BEEN 20 EMPLOYEE TRANSFERS FROM OTHER DEPARTMENTS OF THE ACTIVITY
INTO THE FIRE DIVISION AND ONE EMPLOYEE TRANSFER OUT OF THE FIRE
DIVISION TO ANOTHER DEPARTMENT. THE EVIDENCE ESTABLISHES FURTHER THAN
IN AUGUST 1971, FOUR EMPLOYEES FROM OTHER ACTIVITY DEPARTMENTS "BUMPED"
INTO THE FIRE DIVISION AS A RESULT OF A REDUCTION IN FORCE. MOREOVER,
THE SYSTEM FOR PROMOTIONS WITH RESPECT TO THE FIRE FIGHTERS IS SIMILAR
TO THAT UTILIZED BY ALL OTHER ACTIVITY DEPARTMENTS, AND FIRE FIGHTERS
HAVE ACCESS TO VARIOUS BASE FACILITIES, SUCH AS CAFETERIAS, CREDIT
UNIONS, BANKS AND MEDICAL FACILITIES. ALSO, FIRE FIGHTERS RECEIVE THE
SAME FRINGE BENEFITS, SUCH AS ANNUAL LEAVE, SICK LEAVE AND
HOSPITALIZATION INSURANCE, AS ALL OTHER ACTIVITY EMPLOYEES.
SINCE 1966, WHEN THE NAGE BECAME THE EXCLUSIVE REPRESENTATIVE OF THE
EMPLOYEES OF THE ACTIVITY, THE FIRE FIGHTERS HAVE BEEN, AND CURRENTLY
ARE, REPRESENTED BY FOUR STEWARDS WHO ARE IN FIRE FIGHTER
CLASSIFICATIONS. THE RECORD REVEALS THAT THESE STEWARDS DEAL WITH THE
EMPLOYEES' IMMEDIATE LEVEL OF SUPERVISION IN HANDLING THEIR GRIEVANCES,
WHEREAS OFFICERS OF THE NAGE LOCAL DEAL WITH HIGHER LEVELS OF
SUPERVISION IN THE PROCESSING OF GRIEVANCES IN ACCORDANCE WITH THE
FORMAL STEPS OF THE CONTRACTUAL GRIEVANCE PROCEDURE. IN THIS REGARD,
THE EVIDENCE ESTABLISHES THAT THE NAGE OFFICIALS CONSULTED WITH THE
ACTIVITY'S SECURITY DEPARTMENT OFFICIALS ON 2 OR 3 OCCASIONS WITHIN THE
PAST YEAR REGARDING EMPLOYEE COMPLAINTS AND GRIEVANCES. FURTHER, THERE
WAS NO EVIDENCE THAT THE NAGE HAD AT ANY TIME REFUSED TO REPRESENT FIRE
FIGHTERS IN GRIEVANCE MATTERS. IN ADDITION TO THE FOREGOING, THE RECORD
REVEALS THAT PURSUANT TO THE PROVISIONS OF THE PARTIES' NEGOTIATED
AGREEMENT, BY-MONTHLY MEETINGS ARE HELD BETWEEN THE NAGE OFFICERS, ITS
CHIEF STEWARD AND THE BASE COMMANDER AND VARIOUS CIVILIAN PERSONNEL
OFFICIALS, WHEREIN THE PARTIES DISCUSS MATTERS OF GENERAL CONCERN TO ALL
EMPLOYEES IN THE BARGAINING UNIT. /6/
BASED ON THE FOREGOING, I FIND THAT THE PETITIONED FOR UNIT OF FIRE
FIGHTERS IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION IN
THE ABSENCE OF ANY EVIDENCE THAT THE EXISTING EXCLUSIVE REPRESENTATIVE,
THE NAGE, HAS FAILED TO REPRESENT SUCH EMPLOYEES FAIRLY AND EFFECTIVELY.
/7/ AS I STATED IN UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER,
A/SLMR NO. 8, "WHERE THE EVIDENCE SHOWS THAT AN ESTABLISHED, EFFECTIVE
AND FAIR COLLECTIVE-BARGAINING RELATIONSHIP IS IN EXISTENCE, A SEPARATE
UNIT CARVED OUT OF THE EXISTING UNIT WILL NOT BE FOUND APPROPRIATE
EXCEPT IN UNUSUAL CIRCUMSTANCES." I FIND THAT THE RECORD FAILS TO
ESTABLISH THAT ANY SUCH "UNUSUAL CIRCUMSTANCES" EXIST IN THE INSTANT
CASE. ACCORDINGLY, I FIND THE UNIT SOUGHT BY THE IAFF IS INAPPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND I SHALL, THEREFORE, DISMISS
ITS PETITION. /8/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 31-5476 BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 25, 1972
/1/ THE NAME OF THE ACTIVITY APPEARS AS CORRECTED AT THE HEARING.
/2/ DURING THE HEARING, THE PARTIES STIPULATED THAT THEY WOULD DEFER
TO A DECISION OF THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) IN A PENDING
APPEAL IN DEPARTMENT OF THE NAVY, MARE ISLAND NAVAL SHIPYARD, A/SLMR NO.
129, REGARDING THE ELIGIBILITY STATUS OF THE GS-6 FIRE CAPTAINS. IN
VIEW OF THE DISPOSITIONS OF THE PETITION HEREIN, I FIND IT UNNECESSARY
TO MAKE ANY FINDING REGARDING THE ELIGIBILITY OF THE GS-6 FIRE CAPTAINS.
/3/ THE PETITION IN THE SUBJECT CASE WAS FILED TIMELY.
/4/ THE TENANT COMMANDS INCLUDE: A NAVAL AIR REWORK FACILITY, A
NAVAL HOSPITAL, FLEET WEATHER, COMFAIR AND A NAVY COMMISSARY.
/5/ THE DIFFERENTIAL AMOUNTS TO 10 PERCENT AS COMPARED TO THE 22 1/2
PERCENT RECEIVED BY THE FIRE FIGHTERS.
/6/ WHILE THE PARTIES' NEGOTIATED AGREEMENT IS SILENT AS TO THE FIRE
FIGHTER CLASSIFICATION, IT ALSO IS SILENT AS TO OTHER CLASSIFICATIONS OF
EMPLOYEES INCLUDED WITHIN THE BARGAINING UNIT.
/7/ ALTHOUGH THE IAFF ATTEMPTED TO SHOW THAT THE NAGE HAD NOT
PROPERLY OR EFFECTIVELY REPRESENTED THE FIRE FIGHTERS, IT WAS UNABLE TO
PRESENT ANY EVIDENCE TO SUPPORT ITS CONTENTION. IN THIS CONNECTION,
DURING THE HEARING THE REPRESENTATIVE OF THE IAFF MOVED TO POSTPONE THE
HEARING SO AS TO ENABLE HIM TO QUESTION THE FIRE CHIEF, AN ADMITTED
SUPERVISOR AND A MANAGEMENT OFFICIAL, IN REGARD TO THIS ISSUE. THE FIRE
CHIEF HAD ENTERED THE HOSPITAL ON THE MORNING OF THE HEARING FOR MEDICAL
TESTS. THE ACTIVITY AND THE NAGE OPPOSED THE MOTION BECAUSE, IN THEIR
VIEW, SUCH EVIDENCE COULD BE OBTAINED FROM OTHER WITNESSES, INCLUDING
ACTIVITY EMPLOYEES. ALTHOUGH THE HEARING OFFICER GRANTED A RECESS TO
PERMIT THE IAFF TO OBTAIN WITNESSES, THE IAFF WAS APPARENTLY UNABLE TO
DO SO.
THE HEARING OFFICER DENIED THE MOTION TO POSTPONE THE HEARING AND
ACCEPTED A WRITTEN OFFER OF PROOF WHICH HE HAD REQUESTED EARLIER. AFTER
CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE OFFER OF PROOF
BY THE IAFF AND ITS MOTION TO REOPEN THE RECORD CONTAINED IN ITS BRIEF,
I CONCLUDE THAT NO PREJUDICIAL ERROR WAS COMMITTED AND THAT THE HEARING
OFFICER DID NOT ACT IN AN ARBITRARY OR CAPRICIOUS MANNER IN DENYING THE
IAFF'S MOTION. THUS, IN MY OPINION, THE IAFF HAD AMPLE OPPORTUNITY TO
PREPARE ITS CASE IN THIS MATTER AND TO OBTAIN WITNESSES TO SUPPORT ITS
POSITION. UNDER THESE CIRCUMSTANCES, THE HEARING OFFICER'S RULING IS
AFFIRMED AND THE MOTION BY IAFF TO REOPEN THE RECORD IS DENIED.
/8/ SEE UNITED STATES NAVAL AIR STATION, MOFFETT FIELD, CALIFORNIA,
A/SLMR NO. 130 AND DEPARTMENT OF THE NAVY, NAVAL AIR STATION, CORPUS
CHRISTI, TEXAS, A/SLMR NO. 150.