U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933 (Authority decision, November 22, 1991)

Final FLRA representation decision. The Authority denies review of a regional director's dismissal of this clarification of unit petition, ending this petition before the Authority. The decision addresses which employees belong in the bargaining unit. Section 7123(a)(2) excludes Authority orders involving appropriate unit determinations under 5 U.S.C. § 7112 from the ordinary judicial review provision.

Plain-English summary

The union at the Allen Park VA Medical Center sought to add temporary employees to its bargaining unit through a clarification petition. A regional director found that temporary employees had been excluded from the original unit and that their duties had not meaningfully changed since then. The union argued that it had historically represented them and that later certifications did not expressly exclude them. The Authority found no substantial factual error or departure from precedent and denied review. The regional director's dismissal stands; the decision notes that the union could instead seek to represent the employees through a representation petition.

Decision snapshot

• Authority: Review of a clarification of unit decision under 5 C.F.R. § 2422.17.
• Outcome: Union application for review denied; temporary employees remain outside the clarified unit.
• Key point: Clarification did not add employees originally excluded when their duties and functions had not meaningfully changed.

Full text (FLRA public release)

[ v43 p264 ]
43:0264(24)CU

The decision of the Authority follows:

43 FLRA No. 24

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

ALLEN PARK, MICHIGAN

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 933

(Labor Organization/Petitioner)

5-CU-00012

ORDER DENYING APPLICATION FOR REVIEW

November 22, 1991

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the Petitioner (the Union) under section 2422.17(a) of the Authority's Rules and Regulations. The Activity filed an opposition to the Union's application for review. The Union seeks review of the Regional Director's (RD's) dismissal of the Union's clarification of unit (CU) petition. For the following reasons, we will deny the application for review.

II. Background

In 1966, the Activity granted exclusive recognition to the Union for a bargaining unit of certain employees of the Activity and the Veterans Canteen Service. Temporary employees were specifically excluded from the unit. The parties' 1966 collective bargaining agreement specifically excluded temporary employees, as did ground rules agreements negotiated in 1971 and 1974. Although the parties' 1977 collective bargaining agreement incorporated by reference the 1966 grant of exclusive recognition, the agreement was silent with respect to temporary employees.

In 1980 and 1983, the American Federation of Government Employees, AFL-CIO (AFGE) was certified as the exclusive representative of a nationwide consolidated unit of employees of the Veterans Administration, including the unit employees of the Activity. The certifications are silent with respect to temporary employees. The Union filed the instant CU petition to clarify the status of temporary employees.

III. Regional Director's Decision

The RD noted that when a CU petition seeks to include employees who originally were excluded from a unit, the petitioner must provide evidence that there were meaningful changes in the duties and functions of such employees after the unit was recognized or certified. The RD cited U.S. Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 111 (1991) (Langley); Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 39 FLRA 899 (1991) (Defense Mapping); and Federal Trade Commission, 35 FLRA 576 (1990) (FTC).

The RD found that temporary employees were excluded from the unit as originally recognized and that "there has been virtually no change in any significant aspect of the duties and functions of the Activity's temporary employees from 1966 to the present." RD's Decision at 3. The RD concluded that the record did not support the Union's argument that temporary employees historically were included in the unit. The RD noted that, in any event, bargaining history is not controlling in determining whether previously excluded employees subsequently may be included in a unit through a clarification proceeding. The RD concluded that, in these circumstances, the Union's CU petition should be dismissed. The RD noted that the Union could seek to represent temporary employees by filing a representation (RO) petition.

IV. The Positions of the Parties

A. The Application for Review

The Union asserts that its application for review should be granted because the RD's decision: (1) raises a substantial question of law and policy because of a departure from Authority precedent; and (2) is clearly erroneous on a substantial factual issue and such error prejudicially affects its rights.

The Union acknowledges that temporary employees were excluded from the unit in 1966. The Union argues, however, that temporary employees historically were included in the unit. The Union notes that Authority certifications issued in 1980 and 1983 did not exclude temporary employees from the unit. According to the Union, temporary and permanent employees share a clear and identifiable community of interest and should not be severed from the existing unit. The Union also claims that, as it historically has represented temporary employees, an election among them is unnecessary.

B. The Opposition

The Activity asserts that the RD correctly applied Authority precedent in dismissing the Union's CU petition.

V. Analysis and Conclusions

Upon consideration of the Union's application for review, we conclude that compelling reasons do not exist under section 2422.17(c) of the Authority's Rules and Regulations for granting review of the RD's decision.

The RD, applying Langley, Defense Mapping, and
FTC, dismissed the Union's CU petition because temporary employees were excluded from the original unit and no meaningful changes in their job duties or functions occurred since the exclusion. The RD concluded that the record did not support the Union's argument that the Union historically represented temporary employees and noted that, in any event, bargaining history is not controlling in these cases. The Union has not shown that the RD's findings on substantial factual issues are erroneous or that, in view of those findings, the RD's decision raises a substantial question of law or policy because it departs from Authority precedent. In our view, the Union's application expresses mere disagreement with the RD's findings of fact and application of Authority precedent and, as such, provides no basis for granting review of the RD's decision. For example, Langley, 40 FLRA at 116.

VI. Order

The application for review of the Regional Director's Decision and Order on Petition for Clarification of Unit is denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)