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08:0010(3)RO
The decision of the Authority follows:
8 FLRA No. 3
DEPARTMENT OF THE NAVY
NAVAL AIR STATION
MOFFETT FIELD, CALIFORNIA
Activity
and
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL F-205,
AFL-CIO
Labor Organization/Petitioner
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 759
Incumbent Labor Organization
Case No. 9-RO-56
DECISION AND ORDER
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING OFFICER OF
THE AUTHORITY. THE AUTHORITY HAS REVIEWED THE HEARING OFFICER'S RULINGS
MADE AT THE HEARING AND FINDS THAT THEY ARE FREE FROM PREJUDICIAL ERROR.
THEY ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD, INCLUDING BRIEFS TIMELY FILED BY THE
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-205, AFL-CIO (IAFF)
AND THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 759 (NFFE), THE
AUTHORITY FINDS AS FOLLOWS: /1/
THE PETITIONER, THE IAFF, SEEKS TO SEVER ALL FIRE FIGHTER PERSONNEL
EMPLOYED AT THE ACTIVITY FROM THE ACTIVITY-WIDE UNIT CURRENTLY
REPRESENTED ON AN EXCLUSIVE BASIS BY THE NFFE. /2/ BOTH THE ACTIVITY
AND THE NFFE TAKE THE POSITION THAT SEVERANCE SHOULD NOT BE PERMITTED
WHERE AN ESTABLISHED AND FAIR BARGAINING RELATIONSHIP IS IN EXISTENCE.
/3/
THE NFFE WAS GRANTED FORMAL RECOGNITION ON JUNE 20, 1962, AND
EXCLUSIVE RECOGNITION ON NOVEMBER 13, 1967, BY THE ACTIVITY, UNDER
EXECUTIVE ORDER 10988. THE NFFE AND THE ACTIVITY ARE PARTIES TO A
NEGOTIATED AGREEMENT WITH A STATED EXPIRATION DATE OF MARCH 3, 1981.
THE EXCLUSIVE BARGAINING UNIT AS DESCRIBED IN THE NEGOTIATED AGREEMENT
READS AS FOLLOWS:
THE UNIT IS COMPOSED OF ALL CIVIL SERVICE EMPLOYEES OF NAVAL AIR
STATION, MOFFETT FIELD AS
ESTABLISHED BY THE COMMANDING OFFICER'S LETTER OF 12 NOVEMBER 1967,
WHICH GRANTED EXCLUSIVE
RECOGNITION TO THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
NO. 759. THOSE EMPLOYEES
SPECIFICALLY EXCLUDED BY EXECUTIVE ORDER 10988 AND EMPLOYEES OF
TENANT ACTIVITIES ARE EXCLUDED
FROM THE UNIT TO WHICH THIS AGREEMENT IS APPLICABLE. TENANT
ACTIVITIES INCLUDE THE COMMISSARY
STORE, FLEET UNITS, AND ACTIVITIES OF THE NAVY AND OTHER FEDERAL
AGENCIES BASED ON THE AIR
STATION BUT NOT A PART OF THE NAVAL AIR STATION ORGANIZATION.
THE MISSION OF THE ACTIVITY IS TO MAINTAIN AND OPERATE FACILITIES AND
PROVIDE SERVICES AND MATERIAL TO SUPPORT OPERATIONS OF AVIATION
ACTIVITIES AND UNITS AS DESIGNATED BY THE CHIEF OF NAVAL OPERATIONS.
THUS, IT IS PRIMARILY RESPONSIBLE FOR PROVIDING SUPPORT TO THE NAVAL AIR
UNITS AND OTHER TENANT ACTIVITIES LOCATED AT MOFFETT FIELD.
THE FIRE DEPARTMENT, AS IT WAS REFERRED TO IN THE RECORD, IS
DESIGNATED ORGANIZATIONALLY AS THE AIRCRAFT/STRUCTURAL FIRE
FIGHTING/FIRE AND RESCUE DIVISION OF THE ACTIVITY'S AIR OPERATIONS
DEPARTMENT. IT IS HEADED BY A FIRE CHIEF WHO REPORTS TO THE BASE
COMMANDING OFFICER THROUGH THE AIR OPERATIONS DEPARTMENT HEAD. THE FIRE
CHIEF IS RESPONSIBLE FOR PROVIDING FIRE FIGHTING SERVICES BOTH TO THE
NAVAL AIR UNITS AND TO THE BASE COMPLEX. IN ADDITION, CERTAIN FIRE
FIGHTING SERVICES ARE PROVIDED TO LOCAL COMMUNITIES THROUGH A MUTUAL
ASSISTANCE PACT. THE FIRE DEPARTMENT'S MISSION IS ACCOMPLISHED THROUGH
TWO SEPARATE BRANCHES: ONE RESPONSIBLE FOR STRUCTURAL FIRE FIGHTING AND
THE OTHER HAVING RESPONSIBILITY FOR AIRCRAFT FIRE AND RESCUE. EACH
BRANCH OPERATES OUT OF A SEPARATE STATION.
THE 46 FIRE DEPARTMENT EMPLOYEES REPRESENT APPROXIMATELY ELEVEN PER
CENT OF THE 419 ACTIVITY EMPLOYEES. ALL OF THE ACTIVITY'S EMPLOYEES,
INCLUDING THE FIRE DEPARTMENT EMPLOYEES, ARE SUBJECT TO THE SAME MERIT
PROMOTION AND LABOR RELATIONS POLICIES AS ADMINISTERED BY THE ACTIVITY'S
CIVILIAN PERSONNEL OFFICE. ALSO, ALL ARE SUBJECT TO THE SAME
COMPETITIVE AREAS FOR BOTH MERIT PROMOTIONS AND REDUCTIONS-IN-GRADE.
HOWEVER, THE FIRE DEPARTMENT PERSONNEL ARE SUBJECT TO DIFFERENT PAY AND
RETIREMENT THAN OTHER ACTIVITY EMPLOYEES, /4/ AND FIRE FIGHTERS
GENERALLY WORK DIFFERENT HOURS AND ARE SUBJECT TO CERTAIN SPECIAL
CONDITIONS OF EMPLOYMENT NOT ENJOYED BY OTHER ACTIVITY EMPLOYEES.
MOREOVER, THE RECORD REFLECTS THAT OTHER UNIT EMPLOYEES ALSO ARE SUBJECT
TO SPECIAL WORKING CONDITIONS, UNIQUE TO THEIR BRANCH OR CLASSIFICATION.
FOR EXAMPLE, OTHER EMPLOYEES PERFORM SHIFT WORK, RECEIVE SHIFT
PREMIUMS, AND RECEIVE TRAINING UNIQUE TO THEIR CLASSIFICATION.
THE IAFF ALLEGES THAT THE EXCLUSIVE REPRESENTATIVE HAS NOT PROVIDED
FAIR REPRESENTATION TO THE FIRE DEPARTMENT EMPLOYEES. IT ARGUES FURTHER
THAT IT CAN PROVIDE SPECIALIZED REPRESENTATION TO THE PETITIONED FOR
EMPLOYEES BECAUSE IT REPRESENTS ONLY FIRE FIGHTERS AND, THEREFORE, HAS
KNOWLEDGE OF FIRE FIGHTERS' SPECIAL NEEDS AND CONDITIONS OF EMPLOYMENT.
IN THIS REGARD, HOWEVER, THE RECORD HEREIN SHOWS THAT FIRE FIGHTERS HAVE
SERVED AS OFFICERS OF THE EXCLUSIVE REPRESENTATIVE UNTIL RECENTLY AND
THAT SOME WERE MEMBERS AT THE TIME OF THE HEARING. MOREOVER, THE RECORD
REFLECTS THAT THE NFFE HAS REPRESENTED FIRE FIGHTERS IN THEIR
GRIEVANCES. FURTHER, THE ALLEGATIONS RAISED BY THE IAFF AS TO NFFE'S
REPRESENTATION OF THE FIRE FIGHTERS ARE NOT SUBSTANTIATED BY RECORD
TESTIMONY. WHILE THE NFFE HAS NOT NEGOTIATED ANY SPECIAL PROVISIONS FOR
FIRE FIGHTERS, THERE IS NO EVIDENCE TO SUGGEST THAT INTERESTS OF THE
FIRE FIGHTERS HAVE NOT BEEN ATTENDED TO IN NEGOTIATIONS. WITH RESPECT
TO IAFF'S CLAIMS REGARDING PENDING LEGISLATION IT HAS SUPPORTED FOR FIRE
FIGHTERS, THE RECORD ESTABLISHES THAT NFFE HAS ALSO SUPPORTED SUCH
LEGISLATION. /5/
THE AUTHORITY ESTABLISHED AS A GENERAL STANDARD IN SEVERANCE ISSUES
THAT IT "IS BOUND BY THE THREE CRITERIA FOR DETERMINING THE
APPROPRIATENESS OF ANY UNIT . . . " /6/ SUCH A STANDARD IS MANDATED BY
SECTION 7112(A)(1) OF THE STATUTE. /7/
IN APPLYING THE THREE CRITERIA TO THE CIRCUMSTANCES OF THIS CASE, THE
AUTHORITY CONCLUDES THAT SEVERANCE SHOULD BE DENIED. THE RECORD
ESTABLISHES THAT THE ACTIVITY-WIDE UNIT CURRENTLY REPRESENTED BY THE
NFFE IS APPROPRIATE, AS ALL OF THE ACTIVITY'S EMPLOYEES, INCLUDING THE
FIRE FIGHTERS SOUGHT TO BE SEVERED HEREIN, SHARE A COMMUNITY OF INTEREST
AT THE ACTIVITY LEVEL THAT WILL PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. THUS, ALL OF THE ACTIVITY'S EMPLOYEES
SHARE A COMMON MISSION, ARE SUBJECT TO THE SAME MERIT PROMOTION POLICIES
AND COMPETITIVE AREAS AND HAVE BEEN PART OF A LONG-STANDING, ESTABLISHED
BARGAINING UNIT. /8/ AS TO PROMOTING EFFECTIVE DEALINGS, THE COLLECTIVE
BARGAINING HISTORY SHOWS THAT FIRE FIGHTERS HAVE BEEN REPRESENTED
FAIRLY, AND THERE IS INSUFFICIENT EVIDENCE TO DEMONSTRATE THAT THIS
ESTABLISHED BARGAINING RELATIONSHIP IS NOT EFFECTIVE. NOR HAS THE IAFF
DEMONSTRATED THE EXISTENCE OF UNUSUAL CIRCUMSTANCES WHICH WOULD JUSTIFY
SEVERANCE. /9/ FINALLY, IT IS CONCLUDED THAT DENIAL OF SEVERANCE WILL
REDUCE THE POTENTIAL FOR UNIT FRAGMENTATION THEREBY PROMOTING EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, THE
AUTHORITY SHALL ORDER THAT THE IAFF'S PETITION FOR EXCLUSIVE
REPRESENTATION BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 9-RO-56 BE, AND IT
HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ THE ACTIVITY FILED AN UNTIMELY BRIEF WHICH HAS NOT BEEN
CONSIDERED PURSUANT TO SECTION 2422.14 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 C.F.R. 2422.14(1981)).
/2/ THE UNIT DESCRIBED IN THE PETITION, AS AMENDED AT THE HEARING,
READS AS FOLLOWS:
INCLUDED, ALL GS FIRE FIGHTER PERSONNEL EMPLOYED AT THE NAVAL AIR
STATION, MOFFETT FIELD,
CALIFORNIA; EXCLUDING THE FIRE CHIEF, ASSISTANT FIRE CHIEF,
BATTALION CHIEFS AND EMPLOYEES
UNDER SECTION 7112(B)(2), (3), (4), (5), (6) AND (7) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
/3/ THE NFFE ALSO ARGUED THAT THE PETITION SHOULD BE DISMISSED AS
UNTIMELY FILED BASED ON THE DATE IT RECEIVED SERVICE OF THE PETITION.
HOWEVER, THE RECORD REFLECTS THAT THE PETITION WAS FILED IN THE REGIONAL
OFFICE WITHIN THE REQUIREMENTS OF SECTION 7111(F)(3) OF THE STATUTE AND
SECTION 2422.3 OF THE AUTHORITY'S RULES AND REGULATIONS (5 C.F.R.
2422.3(1981)). THEREFORE, THE PETITION WAS TIMELY FILED.
/4/ FPM SUPPLEMENT 831.1, SECTION F-9-3 ENTITLED SPECIAL ELIGIBILITY
FOR LAW ENFORCEMENT AND FIRE FIGHTERS RETIREMENT; FPM 831-5A ENTITLED
FIRE FIGHTER RETIREMENT, BREAK-IN SERVICE, PER PUBLIC LAW 93-350; AND,
FPM LETTER NO. 551-5 REGARDING APPLICATION OF THE FAIR LABOR STANDARDS
ACT TO FEDERAL EMPLOYEES ENGAGED IN FIRE PROTECTION ACTIVITIES OR LAW
ENFORCEMENT ACTIVITIES.
/5/ THE NFFE AND THE IAFF, AS WELL AS OTHER FEDERAL UNIONS, HAVE
SUPPORTED LEGISLATION TO PROVIDE SPECIAL DEATH BENEFITS AND A REDUCED
WORK WEEK TO FIRE FIGHTERS AND LAW ENFORCEMENT OFFICERS.
/6/ INTERNATIONAL COMMUNICATION AGENCY, 5 FLRA NO. 19(1981).
/7/ SECTION 7112(A)(1) PROVIDES:
SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR ORGANIZATION
REPRESENTATION.
(A)(1) THE AUTHORITY SHALL DETERMINE THE APPROPRIATENESS OF ANY UNIT.
THE AUTHORITY SHALL
DETERMINE IN EACH CASE WHETHER, IN ORDER TO ENSURE EMPLOYEES THE
FULLEST FREEDOM IN EXERCISING
THE RIGHTS GUARANTEED UNDER THIS CHAPTER, THE APPROPRIATE UNIT SHOULD
BE ESTABLISHED ON AN
AGENCY, PLANT INSTALLATION, FUNCTIONAL, OR OTHER BASIS AND SHALL
DETERMINE ANY UNIT TO BE AN
APPROPRIATE UNIT ONLY IF THE DETERMINATION WILL ENSURE A CLEAR AND
IDENTIFIABLE COMMUNITY OF
INTEREST AMONG THE EMPLOYEES IN THE UNIT AND WILL PROMOTE EFFECTIVE
DEALINGS WITH, AND
EFFICIENCY OF THE OPERATIONS OF, THE AGENCY INVOLVED.
/8/ THIS IS NOT TO SAY THAT A UNIT OF FIRE FIGHTER PERSONNEL WOULD BE
INAPPROPRIATE IF SUCH UNIT WERE NOT ALREADY PART OF AN ESTABLISHED
LARGER UNIT.
/9/ COMPARE, INTERNATIONAL COMMUNICATION AGENCY, SUPRA, WHERE SUCH
UNUSUAL CIRCUMSTANCES WERE PRESENT, INCLUDING AGREEMENT OF THE ACTIVITY
AND BOTH UNIONS TO THE SEVERANCE SOUGHT THEREIN.