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53 FLRA No. 140

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE ARMY

U.S. ARMY LAW ENFORCEMENT COMMAND PACIFIC

FORT SHAFTER, HAWAII

(Activity/Petitioner)

and

HAWAII TEAMSTERS AND ALLIED WORKERS

LOCAL 996, AFL-CIO

(Labor Organization/Union)

SF-RP-70001

ORDER DENYING APPLICATION FOR REVIEW

March 19, 1998

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.⁽¹⁾

The Union filed an application for review of the Regional Director's Decision and Order. The Activity filed an opposition to the Union's application for review.

The application is denied because the Union has failed to demonstrate that review is warranted under 5 C.F.R. § 2422.31(c), which provides that the Authority may grant an application for review when the application demonstrates that:

(3) There is a genuine issue over whether the Regional Director has:

(i) Failed to apply established law;

(ii) Committed a prejudicial procedural error;

(iii) Committed a clear and prejudicial error concerning a substantial factual matter.

The Activity filed a petition pursuant to section 7111(b)(2) of the Federal Service Labor-Management Relations Statute (Statute) seeking a bargaining unit clarification. The Regional Director found that desk sergeants and patrol supervisors are supervisors, as defined in section 7103(a)(1) of the Statute and, as such, should be excluded from the bargaining unit.

The Union claims that review is warranted on the grounds that the Regional Director: (1) engaged in prohibited ex parte communications and a conflict of interest that prejudiced the Union on a substantial factual matter; (2) committed prejudicial procedural error by finding no error in the hearing officer's rulings on certain procedural matters; (3) failed to apply established law in finding that desk sergeants and patrol supervisors are supervisors; and (4) violated established law or policy by finding that a previous agreement between the Union and the Activity did not prevent the removal of desk sergeants and patrol supervisors from the bargaining unit. We find that the record supports the Regional Director's factual findings, that the Regional Director did not act improperly or commit prejudicial error, and that the Regional Director correctly applied established law in concluding that the disputed employees are supervisors.

Accordingly, we conclude that the Union has not demonstrated that there is a genuine issue warranting review. In view of this conclusion, we deny the application for review.⁽²⁾

Concurring Opinion of Member Wasserman:

There is no basis on which to grant the application for review, since none of the grounds set forth in 5 C.F.R. § 2422.31© has been met. However, one basis for the application invites comment. Specifically, the Union has alleged that a previous agreement by the Activity to include supervisory police officers (SPOs) in the bargaining unit precludes the Activity's attempted exclusion of the employees at this juncture. We reject that argument, since the law expressly requires exclusion of supervisors from bargaining units, and an earlier inclusion, whether by error or design, cannot bar correction of the unit definition.

In this case, the record reveals that at the time the parties signed the consent election agreement and identified the bargaining unit members, the Activity should have been aware that the inclusion of the SPOs was not in conformance with the Statute. While the Activity stated that it had intended to remove the supervisory duties of the SPOs as a basis for their inclusion in the unit, the record reveals that the Activity sought to withdraw its request to remove the supervisory duties, one month prior to the execution of the consent election agreement that included the SPOs. In this case, the unit was comprised of approximately 68 employees, of which 14 were SPOs. The number of SPOs was sufficient to have affected the outcome of the election or the handling of union business.

It should be noted that it can be an unfair labor practice for an agency to foster inclusion of ineligible employees for the purpose of affecting an election, interfering with union rights, or controlling the union. Cf. Steere Broadcasting Corp., 62 LRRM 1083 (1966). When identifying unit members prior to a certification election, the parties must be cognizant of their responsibilities to comply with the Statute.

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

1. Member Wasserman's concurring opinion is set forth at the end of this decision.

2. While we do not disagree with our concurring colleague that it is important for parties to exercise care in crafting consent election agreements, we find it unnecessary to conjecture about the parties' earlier actions in this case, or any possible outcome in other proceedings if actions were improper.

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