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29 FLRA NO. 66

BUREAU OF INDIAN AFFAIRS
WIND RIVER AGENCY
FORT WASHAKIE, WYOMING

                   Activity

         and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, COUNCIL OF BIA LOCALS

                   Petitioner

Case No. 7-RO-60007

ORDER DENYING APPLICATION FOR REVIEW

I. Statement of the Case

This case is before the Authority on an application for review filed by the United States Department of the Interior, Bureau of Indian Affairs under section 2422.17(a) of the Authority's Rules and Regulations, seeking to set aside the Regional Director's Decision and Order Directing Election in the above-named case. For the reasons discussed below, the application is denied.

II. Background and Regional Director's Decision

In 1980, the National Federation of Federal Employees, Council of BIA Locals (NFFE) was certified as the exclusive representative for a consolidated unit of all non-professional employees of the Bureau of Indian Affairs represented by NFFE Locals, including the non-professional employees of the Wind River Agency, Fort Washakie, Wyoming. Through its petition in this case, NFFE sought to include in the consolidated unit a group of "law enforcement officers" at the Wind River Agency. The Regional Director found that the group of employees was appropriate for inclusion in the consolidated unit, and directed that an election be held to determine whether the law enforcement officers wish to be included in the consolidated unit.

In the Decision and Order, the Regional Director found that the law enforcement officers (game wardens and police officers) are subject to the same lines of authority, and to substantially similar personnel and labor-relations policies, as some of the employees in the consolidated unit. She found further that the scope of the law enforcement officers' duties is the same as some of the unit employees, and that the differences in the nature of their duties are differences in degree and not in substance. She found that the law enforcement officers therefore share a community of interest with the employees in the established unit.

The Regional Director rejected the Activity's contention that the duties of the law enforcement officers create a conflict of interest with the duties of the employees in the established unit. The Regional Director found that the law enforcement officers fall within the definition of "guards," as that term was used in Executive Order 11491. The Regional Director noted that although under Executive Order 11491 guards could not be included in units of other employees, this exclusion was removed by Executive Order 11838 in 1975 because experience had shown that there was no need for the special treatment of guards. It was found in 1975 that guards had demonstrated no conflicts of interest in performing their duties, and that the exclusion of guards did not contribute to stability in labor relations policy and encouraged fragmentation of bargaining units. Citing the Authority's decision in U.S. Department of the Treasury, Bureau of the Mint, 2 FLRA 458 (1980), the Regional Director found that the policy of Executive Order 11838 was continued in the Statute.

Further, the Regional Director found that effective dealings and the efficiency of agency operations will be enhanced by the proposed inclusion of the petitioned-for employees in the existing unit and that a more effective and comprehensive bargaining unit structure will thereby be created.

III. Application for Review

In its application, the Activity contends that the following compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application:

"1. A substantial question of law and/or policy is raised."

The Activity contends that there is no Authority precedent dealing specifically with the inclusion of "law enforcement officers" on Indian reservations in units with  other employees. It contends further that the Regional Director departed from Authority precedent generally in her conclusion as to the community of interest of law enforcement officers, and failed to give proper weight to the Activity's arguments as to conflict of interest.

"2. There are extraordinary circumstances warranting reconsideration by the Authority."

The Activity argues that we should reconsider the policy created by Executive Order 11838 of eliminating the exclusion of guards from units of other employees, at least as the policy applies to the unique duties of the law enforcement officers here in question.

"3. The conduct of the hearing and rulings made in connection with the proceeding resulted in prejudicial error."

The Activity argues that the Authority's Hearing Officer frequently interrupted the questioning by management officials and disrupted the flow of management's case. Further, it alleges that certain rulings of the Hearing Officer were prejudicial, specifically the denial of a motion to sequester witnesses and a notion to depose certain employees as to their involvement in an alleged "gentlemen's agreement" to exclude law enforcement officers from the consolidated unit.

"4. The Regional Director's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of the Agency."

The Regional Director found in her decision, concerning the alleged "gentlemen's agreement" referred to above in argument 3, that "there is no independent, conclusive evidence that such an understanding was reached." The Activity argues that the Regional Director cannot properly have made such a finding in the face of the direct testimony on this matter by the Activity's Labor Relations Officer, and in view of the denial of the motion to depose referred to above in argument 3.

"5. The Regional Director failed to properly consider that although the petitioned for unit of (law enforcement officers) may have a degree of community of interest with employees in the consolidated unit, there is an overriding consideration of conflict of interest which precludes incorporating the (law enforcement officers) with other consolidated unit employees." 

The Activity does not separately address this argument, which essentially is a restatement of its other arguments in this case. Further, standing alone, this argument does not fall within any of the grounds for review set forth in section 2422.17(c) of the Authority's Rules and Regulations. It will not be treated separately in our discussion.

IV. Discussion

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) for granting the Activity's application for review.

The Activity's first argument, that a substantial question of law or policy is raised by the Regional Director's decision, merely constitutes disagreement with the Regional Director's rationale and application of Authority precedent with regard to the "community of interest" criterion. We find, for the reasons stated by the Regional Director, that the law enforcement officers here are not so uniquely different from other "guards" as to preclude them on that basis alone from sharing a community of interest with other employees in the established NFFE unit. We therefore conclude that no substantial question of law or policy has been raised within the meaning of section 2422.17(c)(1).

As to the Activity's second argument, the facts pertaining to the duties of the law enforcement officers are set forth in detail by the Regional Director, and the Activity has not demonstrated that those duties create a conflict in this case with other employees in the established NFFE unit. We conclude that the issues in this case do not present extraordinary circumstances within the meaning of section 2422.17(c)(2) warranting our reconsideration of the policy created by Executive Order 11838, which eliminated the general exclusion of guards from units of other employees.

With respect to the Activity's third argument, the interruptions and disruption alluded to by the Activity were nothing more than permissible regulation of the course of the hearing by the Hearing Officer. As to the denial of the motions to sequester witnesses and to depose certain employees, the granting of such motions is not a matter of right, but rather is a matter within the broad discretion of a Hearing Officer. See section 2422.12 of the Authority's Rules and Regulations. The Activity had not shown how the rulings of the Hearing Officer interfered with the presentation at the hearing of all relevant facts. Further, the  denial of the motion to depose certain employees did not prejudicially affect the Activity's case in this regard. We therefore conclude that the Activity has not demonstrated that the conduct of the hearing or any ruling made in connection with the proceeding in this case has resulted in prejudicial error within the meaning of section 2422.17(c)(3).

Finally, as to the Activity's argument concerning the alleged oral "gentlemen's agreement," we find that this argument presents no basis under section 2422.17(c)(4) for granting the application for review. The Regional Director found that "there is no independent, conclusive evidence that such an understanding was reached." The Regional Director made this finding after first noting that NFFE disputed the claim that any such agreement was reached. Moreover, the Regional Director found that even assuming for the sake of argument that there had been such an agreement, it was not shown to have been binding on her. She concluded that the decision on the petition before her must ultimately rest on the application of the criteria of section 7112 of the Statute. We find that the Regional Director's finding and conclusion in this regard were correct.

V. Order

The application for review of the Regional Director's Decision and order Directing Election is denied.

Issued, Washington, D.C., October 15, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

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