Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado and Federal Firefighters Association, Local 44 and American Federation of Government Employees, Local 1345 (Authority decision, December 21, 1989)

Final FLRA decision. This is a final Authority order concerning the appropriateness of a bargaining unit. Under 5 U.S.C. § 7123(a)(2), an order involving an appropriate-unit determination generally cannot be reviewed by a court of appeals, unless issued in connection with an unfair labor practice proceeding.

Plain-English summary

Federal Firefighters Association Local 44 sought to separate about 49 Fort Carson firefighters from an established bargaining unit of about 1,300 employees represented by AFGE. The Authority found that the larger unit remained appropriate and that the record showed no unusual circumstances warranting severance. Firefighters' distinct duties and dissatisfaction with some representation did not overcome the shared personnel policies and evidence that AFGE had represented their interests. The Authority denied review, leaving dismissal of the petition in place.

Decision snapshot

• Authority: Appropriate-unit criteria under 5 U.S.C. § 7112(a); review under 5 C.F.R. § 2422.17(c).
• Outcome: Application for review denied; firefighters remain in the established unit.
• Key point: Severance requires unusual circumstances when an established unit continues to be appropriate.

Full text (FLRA public release)

[ v34 p30 ]
34:0030(8)RO

The decision of the Authority follows:

34 FLRA No. 8

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE
ARMY

HEADQUARTERS, FORT CARSON

and

HEADQUARTERS, 4th INFANTRY DIVISION

FORT CARSON,
COLORADO

(Activity)

and

FEDERAL FIREFIGHTERS ASSOCIATION, LOCAL
44

(Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

AFL-CIO, LOCAL 1345

(Intervenor)

7-RO-90006

ORDER DENYING APPLICATION FOR
REVIEW

December 21, 1989

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 Federal Firefighters Association, Local 44 (FFA) under section 2422.17(a) of the Authority's Rules and Regulations.

FFA seeks review of the Acting Regional Director's Decision and Order on Petition for Certification of Representative. The Acting Regional Director dismissed FFA's petition, which sought to sever a unit of the Activity's Fire Prevention/Protection Division employees (collectively referred to as "firefighters" in this decision) from an existing Activity-wide bargaining unit represented by the American Federation of Government Employees, AFL-CIO, Local 1345 (AFGE). No opposition was filed to FFA's application for review.

For the reasons discussed below, we will deny the application for review.

II. Background and Acting Regional Director's
Decision

Since 1967, AFGE has been the exclusive representative of a bargaining unit of the Activity's nonprofessional Wage Grade and General Schedule employees, including firefighters. The most recent negotiated agreement between AFGE and the Activity was under renegotiation when FFA filed its petition to sever the firefighters (approximately 49) from AFGE's established unit (approximately 1300 employees) and to represent the firefighters in a unit separate from the Activity's other nonprofessional employees.

In support of its petition, FFA argued that the
firefighters have a clear and identifiable community of interest separate from other nonprofessional employees. FFA cited several incidents that occurred between 1982 and 1988 in which AFGE allegedly failed to represent firefighters' interests adequately. FFA argued further that allowing a separate unit of firefighters would promote effective dealings and efficiency of agency operations.

In opposition to the petition, the Activity contended during the hearing that "the proposed severance would result in a fragmentation of the existing unit structure, which would detract from effective dealings and would not promote efficiency of agency operations." Acting Regional Director's Decision at 2. The Activity took the position that "there continues to be a single, intact community of interest, as defined by the AFGE's existing unit at the present time." Id. AFGE argued that the employees sought by the proposed severance "do not have an appropriate community of interest which would justify a separate bargaining unit and that the proposed severance would not promote effective dealings and/or efficiency of agency operations." Id. at 3.

The Acting Regional Director dismissed FFA's petition. The Acting Regional Director found that the firefighters are General Schedule (GS) employees who are in separate job classifications from other GS employees, possess unique technical skills, perform the discrete function of fire protection and prevention, work shifts that differ from the 40-hour week common to most GS employees, and have their overtime, leave, and retirement computed differently from other GS employees. Acting Regional Director's Decision at 3-4.

The Acting Regional Director found that, on the other hand, firefighters are otherwise subject to the same centrally administered personnel policies and practices as other unit employees. He found that, for example, firefighters share a common merit promotion plan, equal employment opportunity plan, performance appraisal system, and reduction in force plan with other unit employees. The Acting Regional Director also found that firefighters' personnel records are maintained by the same personnel office that serves other unit employees, and all unit employees have access to the same services, such as the credit union, dispensary, and drug/alcohol abuse services. Acting Regional Director's Decision at 4.

The Acting Regional Director noted that the current collective bargaining agreement between AFGE and the Activity "does not contain any special provisions applicable only to [firefighters], but they are covered generally as other GS employees." Acting Regional Director's Decision at 4. The Acting Regional Director found that although testimony from some firefighters indicated that they were dissatisfied with the representation they had received from AFGE in particular situations, "the evidence as a whole fails to establish, contrary to the contentions of the FFA, that the AFGE has failed to meet any statutory obligation of representation in its conduct toward
[firefighters], or that the AFGE has represented [firefighters] in a manner inconsistent with its representation of other unit employees. In this regard, the record indicates that the AFGE has represented [firefighters'] interests on several occasions and has sought [firefighters'] input in the formulation of collective bargaining policies." Id.

The Acting Regional Director found that, other than the assertion by a chief firefighter that morale would be enhanced by separate representation for firefighters, the record did not establish that severance of the proposed unit would enhance the efficiency of agency operations or promote effective dealings with firefighters. Acting Regional Director's Decision at 4.

Citing Library of Congress, 16 FLRA 429 (1984) and other Authority precedent, the Acting Regional Director noted the Authority's position that "where an established bargaining unit continues to be appropriate and no unusual circumstances are presented, a petition seeking to remove certain employees from the overall unit and to separately represent them must be dismissed, in the interest of reducing the potential for unit fragmentation and thereby promoting effective dealings and efficiency of agency operations." Acting Regional Director's Decision at 5.

Applying this principle, the Acting Regional Director found that the established Activity-wide unit of employees continues to be appropriate because all of the unit employees, including the firefighters, share a community of interest at the Activity level, and as such the unit promotes effective dealings and efficiency of agency operations. He found further that "the weight of the evidence fails to demonstrate that the
[firefighters] have been represented disparately by the AFGE or that the AFGE has otherwise failed to meet its statutory obligation of representation to [the firefighters]." Acting Regional Director's Decision at 5. Finally, the Acting Regional Director concluded that effective dealings and efficiency of the Activity's operations "will be promoted by avoiding unnecessary fragmentation." Id. Accordingly, he found that FFA's petition must be dismissed.

In dismissing the petition, the Acting Regional Director noted three decisions in which the Authority dismissed petitions filed by other FFA locals seeking severance from established bargaining units represented by other labor organizations: Department of the Air Force, Columbus Air Force Base, Columbus Air Force Base, Mississippi, 28 FLRA 892 (1987); Department of the Navy, Naval Air Station, Point Mugu, California, 26 FLRA 620 (1987) (Point Mugu); and U.S. Army Engineer Center and Fort Belvoir, 16 FLRA 271 (1984). Also, in light of his dismissal of the petition, the Acting Regional Director found it unnecessary to decide a question raised by FFA regarding the eligibility of fire captains to be in the proposed unit.

III. FFA's Application For Review

FFA contends that under section 2422.17 of our
Regulations, a substantial question of law or policy is raised because the Acting Regional Director "misstated and misapplied Authority law on the propriety of severing an appropriate unit from a larger, existing unit." Application at 16. FFA argues that the Acting Regional Director erred by: (1) requiring FFA to meet a higher standard of proving that AFGE violated its statutory duty of fair representation to firefighters, instead of requiring FFA "to show no more than firefighter discontent with AFGE's representation" (Application at 17); (2) requiring proof that AFGE provided less representation to the firefighters than to the other unit employees; (3) finding that FFA did not establish that AFGE violated its statutory duty of fair representation (even assuming that this is the proper test); (4) failing to rule on whether severance is appropriate because AFGE overlooked firefighters' bargaining concerns; and (5) failing to find that severance of the firefighters would promote effective dealings with, and efficiency of, the Activity.

FFA also contends that if the proposed firefighters' unit is found to be appropriate, the Authority should include fire captains in the unit.

IV. Discussion

We conclude, for the reasons stated below, that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review. We find that the application does not raise a substantial question of law or policy within the meaning of section 2422.17(c) of our Regulations.

As the Acting Regional Director correctly noted, the Authority's precedent states that "where an established bargaining unit continues to be appropriate and no unusual circumstances are presented, a petition seeking to remove certain employees from the overall unit and to separately represent them must be dismissed, in the interest of reducing the potential for unit fragmentation and thereby promoting effective dealings and efficiency of agency operations." Point Mugu, 26 FLRA at 622.

The Acting Regional Director applied both elements of this standard and determined that FFA's petition must be dismissed. He found first that the established bargaining unit continues to be appropriate. Nothing in FFA's application establishes that the Acting Regional Director's determination as to this matter warrants review.

The Acting Regional Director also found that FFA's petition did not establish that the second element of the standard was met in this case--that is, he found that no unusual circumstances warranting severance were presented by the petition. The Acting Regional Director considered FFA's assertions with respect to AFGE's alleged failure to adequately represent firefighters and firefighters' bargaining concerns. He determined that "the record indicates that the AFGE has represented [firefighters'] interests on several occasions and has sought [firefighters'] input in the formulation of collective bargaining policies." Acting Regional Director's Decision at 4. He concluded that the weight of the evidence failed to demonstrate that the firefighters have been represented disparately by AFGE or that AFGE has otherwise failed to meet its statutory obligation of representation to the firefighters.

We find that FFA has failed to demonstrate that the Acting Regional Director's decision with regard to the second element of the Authority's standard warrants review. The Acting Regional Director correctly considered whether unusual circumstances were presented by the petition, and in applying this element properly determined that they were not. Contrary to FFA's argument, we do not view the statements of the Acting Regional Director regarding the adequacy of AFGE's representation of firefighters and their interests as establishing an improper test for granting a petition for severance. Rather, the Acting Regional Director's statements are consistent with Authority precedent regarding the standard for granting such petitions. See, for example, Columbus AFB and Point Mugu.

In our view, FFA's application for review expresses nothing more than disagreement with the conclusions reached by the Acting Regional Director based on the evidence presented. Contrary to FFA's contentions, the Acting Regional Director properly stated and applied the applicable standard under Authority precedent for determining whether to grant a petition for severance. In sum, we agree, for the reasons stated by the Acting Regional Director, that AFGE's established bargaining unit continued to be appropriate and that FFA did not, as required by Authority precedent, present unusual circumstances warranting the severance of firefighters from that unit.

V. Order

The application for review of the Acting Regional Director's Decision and Order is denied.

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