U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base and American Federation of Government Employees (Authority decision, April 27, 1979)

Final FLRA decision under Executive Order 11491. The Authority denied review of a representation petition dismissal in this transferred case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

The Air Force Logistics Command and AFGE jointly sought to combine a nonprofessional bargaining unit with a unit of professional nurses. The Regional Administrator said the professionals needed a separate vote on inclusion in the proposed mixed unit. The parties declined to hold that election, so he dismissed their petition; the Assistant Secretary agreed. The Authority denied review because the parties showed no major policy issue or arbitrary ruling. The dismissal remained in place.

Decision snapshot

• Authority: Executive Order 11491, § 10(b); 5 U.S.C. § 7135(b).
• Outcome: Review denied; consolidation petition remains dismissed.
• Key point: Professionals needed a separate election before inclusion in a consolidated unit with nonprofessionals.

Full text (FLRA public release)

[ v01 p217 ]

01:0217(27)UC

The decision of the Authority follows:

1 FLRA No. 27
APRIL 27, 1979

MR. JAMES L. NEUSTADT
ASSISTANT GENERAL COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005

MR. VAL BUXTON, CHIEF
LABOR AND EMPLOYEE RELATIONS DIVISION
DIRECTORATE OF CIVILIAN PERSONNEL
DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO 45433

RE: U.S. DEPARTMENT OF THE AIR FORCE, AIR FORCE
LOGISTICS COMMAND, WRIGHT-PATTERSON AFB,
OHIO, Assistant Secretary Case
No. 53-10572(UC), FLRC No. 78A-177

GENTLEMEN:

THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR JOINT PETITION FOR REVIEW
OF THE ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.

THIS CASE AROSE AS A RESULT OF A PETITION FILED JOINTLY BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (THE UNION) AND THE
AIR FORCE LOGISTICS COMMAND (THE ACTIVITY) SEEKING TO CONSOLIDATE TWO
UNITS EXCLUSIVELY REPRESENTED BY THE UNION. ONE OF THE UNITS CONSISTED
OF ALL NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES AT NINE FACILITIES OF
THE ACTIVITY, AND THE SECOND CONSISTED OF ALL PROFESSIONAL NURSES AT TWO
OF THE SAME FACILITIES. NEITHER THE PARTIES NOR THE EMPLOYEES IN THE
PROPOSED UNIT SOUGHT AN ELECTION ON THE ISSUE OF THE PROPOSED
CONSOLIDATION.

THE REGIONAL ADMINISTRATOR (RA), CITING THE FEDERAL LABOR RELATIONS
COUNCIL'S 1975 REPORT AND RECOMMENDATIONS ON THE AMENDMENT OF EXECUTIVE
ORDER 11491, /1/ FOUND THAT THE ORDER SPECIFICALLY REQUIRES AN ELECTION
AMONG PROFESSIONALS IN EVERY CASE WHERE A CONSOLIDATION OF UNITS WOULD
MIX BOTH PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, AND THAT NO
DISTINCTION IS MADE AS TO THE SIZE OF THE UNITS BEING CONSOLIDATED, NOR
HAS ANY EXCEPTION BEEN MADE WHEN AN ELECTION WAS RECENTLY HELD ON THE
SAME ISSUE IN ONE OF THE UNITS SOUGHT TO BE CONSOLIDATED IN THE PROPOSED
CONSOLIDATION. ACCORDINGLY, HE FOUND THAT "AN ELECTION AMONG (THE)
PROFESSIONALS RESOLVING THE ISSUE OF THEIR INCLUSION OR EXCLUSION FROM
THE PROPOSED CONSOLIDATED UNIT IS A NECESSARY PART IN THE PROCESS OF
COMPLETING THE CERTIFICATION OF THE PROPOSED CONSOLIDATED UNIT." HE
FURTHER FOUND, HOWEVER, THAT THE JOINT PETITIONERS HAD BEEN INFORMED OF
SUCH REQUIREMENTS BUT REFUSED TO PROCEED TO AN ELECTION AMONG THE
PROFESSIONAL EMPLOYEES. HE THEREFORE DISMISSED THE JOINT PETITION. THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE RA AND BASED ON HIS
REASONING, FOUND THAT DISMISSAL OF THE INSTANT PETITION WAS WARRANTED
AND ACCORDINGLY DENIED THE PARTIES' REQUESTS FOR REVIEW SEEKING REVERSAL
OF THE RA'S DISMISSAL OF THE PETITION.

IN THE JOINT PETITION FOR REVIEW, IT IS ALLEGED THAT THE ASSISTANT
SECRETARY'S DECISION RAISES THE FOLLOWING MAJOR POLICY ISSUE:

"(W)HETHER IN EVERY PROPOSED CONSOLIDATION INVOLVING MIXED
PROFESSIONAL AND

NON-PROFESSIONAL EMPLOYEES SHOULD SELF-DETERMINATION ELECTIONS FOR
THE PROFESSIONALS BE

REQUIRED, OR SHOULD SUCH ELECTIONS BE HELD ONLY IN ACCORDANCE WITH
RATIONAL CRITERIA

CONSISTENT WITH THE POLICY TO FACILITATE UNIT CONSOLIDATION AS
PROVIDED FOR IN THE COUNCIL'S

REPORT AND RECOMMENDATIONS ON THE AMENDMENT OF EXECUTIVE ORDER 11491,
JANUARY 1975?"

IN THIS REGARD, IT IS CONTENDED THAT A MINIMUM ONE-YEAR BAR SHOULD BE
IMPLEMENTED PRECLUDING A VOTE AMONG PROFESSIONAL EMPLOYEES "FOR THE TIME
PERIOD BETWEEN THE PROFESSIONAL VOTE FOR A PREVIOUS CONSOLIDATION AND A
SUCCEEDING PETITION FOR CONSOLIDATION WHICH INCLUDES THE PREVIOUS
CONSOLIDATED UNIT."

IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2400.2 OF
THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
2411.12 OF THE COUNCIL'S RULES. THAT IS, THE DECISION OF THE ASSISTANT
SECRETARY DOES NOT PRESENT A MAJOR POLICY ISSUE AND IT IS NEITHER
ALLEGED, NOR DOES IT APPEAR, THAT HIS DECISION IS ARBITRARY AND
CAPRICIOUS.

THUS, AS TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION
RAISES A MAJOR POLICY ISSUE, THE APPEAL FAILS TO CONTAIN ANY SUPPORT FOR
A CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION IS INCONSISTENT
WITH THE PURPOSES AND POLICIES OF THE ORDER, AND THEREFORE PRESENTS NO
BASIS FOR REVIEW. IN THIS REGARD, THE AUTHORITY NOTES PARTICULARLY THAT
THE COUNCIL'S 1975 REPORT AND RECOMMENDATIONS (LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE (1975), AT 36) STATES IN PERTINENT
PART:

SECTION 10(B) OF THE EXECUTIVE ORDER PROHIBITS THE ESTABLISHMENT OF A
UNIT IF IT INCLUDES

BOTH PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, UNLESS A MAJORITY OF
THE PROFESSIONAL

EMPLOYEES VOTES FOR INCLUSION IN THE UNIT. WE BELIEVE THIS
REQUIREMENT SHOULD LIKEWISE APPLY

WHERE CONSOLIDATION OF EXISTING BARGAINING UNITS IS PROPOSED. THAT
IS, IN EVERY CASE WHERE A

CONSOLIDATION OF UNITS WOULD MIX BOTH PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES, ALL OF THE

INVOLVED PROFESSIONALS, INCLUDING THOSE ALREADY IN MIXED UNITS,
SHOULD BE GIVEN A SEPARATE

SELF-DETERMINATION ELECTION ON THE ISSUE OF BEING INCLUDED IN THE
PROPOSED CONSOLIDATED UNIT

WITH NONPROFESSIONALS. WHILE PROFESSIONAL EMPLOYEES ALREADY IN MIXED
UNITS WOULD HAVE VOTED

ONCE FOR INCLUSION WITH NONPROFESSIONALS, THEY WOULD HAVE MADE THAT
SELECTION IN THE CONTEXT

OF A UNIT STRUCTURE WHICH DIFFERS FROM THAT OF THE PROPOSED
CONSOLIDATED UNIT.

WE ARE MINDFUL THAT PROVIDING PROFESSIONAL EMPLOYEES WITH A
SELF-DETERMINATION ELECTION

MIGHT DETRACT FROM OUR RECOMMENDED POLICY OF FACILITATING THE
CONSOLIDATION OF EXISTING

BARGAINING UNITS IN THAT IT MIGHT RESULT IN SEPARATE CONSOLIDATED
PROFESSIONAL AND

NONPROFESSIONAL UNITS. WE BELIEVE, HOWEVER, THAT THIS REQUIREMENT
WOULD STRIKE A BALANCE

BETWEEN THE PROPOSED POLICY ON CONSOLIDATION OF UNITS AND THE
EXISTING POLICY CONCERNING THE

INCLUSION OF PROFESSIONAL EMPLOYEES IN A UNIT WITH NONPROFESSIONAL
EMPLOYEES.

MOREOVER, THE APPEAL NEITHER ALLEGES, NOR DOES IT OTHERWISE APPEAR,
THAT THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS.

SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND SINCE IT IS NEITHER ALLEGED, NOR DOES IT APPEAR, THAT
HIS DECISION IS ARBITRARY AND CAPRICIOUS, THE APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
AUTHORITY'S TRANSITION RULES AND REGULATIONS WHICH INCORPORATES BY
REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE PETITION FOR REVIEW IS HEREBY DENIED. /2/

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

/1/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 36.

/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL REFORM ACT OF 1978
(92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE BASIS OF
E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.