United States Department of the Navy, Carrier Planning Activity, Chesapeake, Virginia (Activity/Petitioner) and National Association of Independent Labor (Labor Organization/Petitioner) and International Federation of Professional and Technical Engineers, Local 1 (Labor Organization/Intervenor)

[ v63 p63 ]

63 FLRA No. 23

UNITED STATES
DEPARTMENT OF THE NAVY
CARRIER PLANNING ACTIVITY
CHESAPEAKE, VIRGINIA
(Activity/Petitioner)

and

NATIONAL ASSOCIATION
OF INDEPENDENT LABOR
(Labor Organization/Petitioner)

and

INTERNATIONAL FEDERATION
OF PROFESSIONAL AND
TECHNICAL ENGINEERS
LOCAL 1
(Labor Organization/Intervenor)

WA-RP-08-0007
WA-RP-08-0048

_____

ORDER DENYING
APPLICATION FOR REVIEW

January 13, 2009

_____

Before the Authority:  Thomas M. Beck, Chairman and
Carol Waller Pope, Member [n1] 

I.     Statement of the Case

      This case is before the Authority on an application for review filed by the National Association of Independent Labor (NAIL) under § 2422.31 of the Authority's Regulations. [n2]  The United States Department of the Navy (DoN), Carrier Planning Activity, Chesapeake, Virginia (the Activity) filed an opposition to NAIL's application for review. The International Federation of Professional and Technical Engineers, Local 1 (IFPTE) did not file an opposition to NAIL's application.

      As the result of a reorganization, the Activity and NAIL filed petitions to clarify the bargaining unit status of thirty-eight employees who were transferred to the Activity. IFPTE intervened. The Regional Director (RD) determined that: (1) the two separate units sought by NAIL and IFPTE are not appropriate; (2) a unit of all of the Activity's professional employees is appropriate and IFPTE continues to represent them; and (3) a unit of all of the Activity's nonprofessional employees is appropriate, but an election is necessary to determine the exclusive representative of this unit. [n3] 

      For the reasons that follow, we deny NAIL's application for review.

II.     Background and RD's Decision

A.     Background

      The thirty-eight bargaining unit employees at issue here were transferred from the Supervisor of Shipbuilding, Newport News, Virginia (SUPSHIP) to the Activity. See RD's Decision at 3. The thirty-eight employees consist of nineteen non-professional employees, who were transferred from the SUPSHIP unit represented by NAIL, and nineteen employees -- nine professional and ten non-professional employees -- who were transferred from the SUPSHIP unit represented by IFPTE. See id. at 4.

      The Activity is responsible for establishing life cycle maintenance plans for aircraft carriers and their related equipment. See id. at 2. As relevant here, this function began with the Department of the Navy's Planning, Engineering for Repair and Alteration Center, Carriers, Bremerton, Washington (PERA CV). See id. In 1993, PERA CV was closed and its function was transferred to SUPSHIP. Sixty-one bargaining unit employees, including twenty-one professional and non-professional engineers, and forty non-professional employees occupying non-engineering positions, were [ v63 p64 ] transferred. See NAIL Ex. 2 at 4. IFPTE and SUPSHIP filed a joint petition to clarify the bargaining unit status of the transferred employees. Based on the parties' stipulations, in Case No. WA-RP-00007 the RD of the Authority's Washington Regional Office (WRO) concluded that all professional and non-professional engineers, as well as engineering technicians, would accrete into the IFPTE-represented unit at SUPSHIP. See id. at 7. The WRO RD further concluded that all other employees would accrete into the unit at SUPSHIP represented by the National Association of Government Employees (NAGE). [n4]  See id. Both parties waived their right to file an application for review. See id. at 8.

      The Activity's work is currently planned and performed by two divisions of employees: the Availability Planning Division and the Engineering Division. See RD's Decision at 4. The Availability Planning Division has seventeen non-professional employees, all of whom are from the NAIL-represented unit. The Engineering Division has all nineteen employees from the IFPTE-represented unit, as well as two non-professional employees from the NAIL-represented unit. The professional employees are employed as engineers and architects; the non-professional employees are employed as technicians, ship life-cycle managers, logistics management specialists, program managers, production controllers and procurement specialists. See id. Although the employees work within their respective divisions, they often coordinate tasks with the employees from the other division. See id. at 5. The Activity's employees are grouped in the same work space so that they can freely communicate with each other.

      The chain of command for the employees consists of a first-line supervisor within a sub-component of either the Activity Planning Division or the Engineering Division, and a planning manager who oversees the entire division and serves as the division's second- line supervisor. See id. Beyond that, the chain of command consists of the Deputy Program Manager's Representative and then the Program Manager's Representative.

      The Activity currently utilizes SUPSHIP personnel policies, but plans to issue its own policies following the resolution of this representation dispute. See id. In addition, all human resources are administered by the Yorktown Satellite Human Resources Office, which provides management advice, recruits employees, provides union notice for collective bargaining, and assists management with discipline and performance problems. See id.

      Following the reorganization, NAIL and the Activity filed petitions to clarify the bargaining unit status of the thirty-eight employees who were transferred from SUPSHIP. IFPTE intervened. NAIL and IFPTE argued that the Activity was a successor employer with respect to the employees in their respective SUPSHIP bargaining units. See id. at 6. In this respect, NAIL sought to represent a unit consisting of the nineteen non-professional employees who came from the SUPSHIP unit represented by NAIL, and IFPTE sought to represent a mixed unit of the nine professional and ten non-professional employees who came from the SUPSHIP unit represented by IFPTE. See id. The Activity argued that there were two appropriate bargaining units: one consisting of professional employees, and one consisting of non-professional employees. See id. at 5-6. The Activity agreed that, under successorship principles, IFPTE represents the professional employee unit. Further, the Activity asserted that an election was necessary to determine the exclusive representative for the non-professional unit because neither IFPTE nor NAIL represent a majority of the non-professional employees.

B.     RD's Decision

      In applying the Authority's framework set forth in Naval Facilities Engineering Services Center, Port Hueneme, California, 50 FLRA 363, 368 (1995) (Port Hueneme) for resolving successorship claims arising out of a reorganization, the RD first considered whether the units proposed by NAIL and IFPTE were appropriate. In making this determination, the RD considered whether the proposed units would: (1) ensure a clear and identifiable community of interest among the employees in the units; (2) promote effective dealings with the Activity; and (3) promote the efficiency of the Activity's operations. See 5 U.S.C. § 7112(a). Applying these criteria, the RD concluded that, although the continuation of the NAIL and IFPTE units would preserve the status quo, neither unit is appropriate under § 7112(a) of the Federal Service Labor-Management Relations Statute (Statute). See RD's Decision at 8 (citations omitted).

      In this regard, the RD found that the record did not establish that the employees in the proposed NAIL and IFPTE units share a community of interest that is separate and distinct from the community of interest that they share with other Activity employees. See id. Specifically, the RD found that the proposed units are: part of the same organizational component; support the same mission; and are subject to the same chain of command. [ v63 p65 ] See id. The RD further found that all of the employees work side-by-side in the same office; have similar or related duties, job titles, and work assignments; and are subject to the same general working conditions. See id. The RD also found that the employees in the proposed units are governed by the same personnel and labor relations policies that are administered by the same personnel office, and do not have significant employment concerns or personnel issues that are different or unique from other Activity employees. See id. Accordingly, the RD concluded that the employees in the proposed units do not share a community of interest that is separate and distinct from other Activity employees. See id. (citations omitted).

      The RD also found that the proposed units do not satisfy the effective dealings and efficiency of agency operations criteria. Specifically, the RD determined that the proposed units would require the Activity to negotiate and administer multiple agreements for employees that work "side by side in the same office," thereby creating additional responsibilities for the Activity and making effective dealings cumbersome. Id. Further, the RD found that the proposed units would result in an "artificial and unwarranted fragmentation of the Activity's integrated structure, which is inconsistent with the efficiency of operations criteria." Id. (citations omitted). Accordingly, the RD determined that the proposed units would not promote effective dealings with the Activity, nor would they promote the efficiency of the Activity's operations. See id.

      Based on the foregoing, the RD concluded that the successor units sought by NAIL and IFPTE were not appropriate under § 7112(a) of the Statute. However, the RD found that a unit consisting of all of the Activity's non-professional employees is appropriate under § 7112(a). See id. at 10. In this regard, the RD determined that the non-professional employees are within the same organizational component, support the same mission, and are subject to the same chain of command. See id. The RD also found that the non-professional employees are subject to the same working conditions and policies, work together in the same location, and are serviced by the same human resources office. Accordingly, the RD found that the non-professional employees share a community of interest. See id.

      The RD also found that a unit of all non-professional employees would promote effective dealings and efficient operations. Specifically, the RD found that such a unit is "coextensive with the Activity's organizational structure and exists at the level where responsibility over personnel and labor relations matters resides[,]" and that the non-professional employees are serviced by the same human resources office. Id.

      Based on the foregoing, the RD concluded that a unit of all of the Activity's non-professional employees is appropriate. See id. With respect to the remaining successorship criteria, the RD found that the non-professional employees are performing substantially the same organizational mission, duties, and functions under substantially similar working conditions. Since neither IFPTE nor NAIL represents more than seventy percent of the employees included in the non-professional unit, the RD found that neither unit is "sufficiently predominant," and directed an election among the non-professional employees to determine their exclusive representative. See id. at 11.

III.     Position of the Parties

A.     NAIL's Application for Review

      NAIL requests review of the RD's decision on the ground that he failed to apply established law. In this regard, NAIL alleges that the RD failed to recognize the "long established history" of NAIL and IFPTE, and failed to properly apply the appropriate unit criteria set forth in 5 U.S.C. § 7112(a). Application for Review at 8. NAIL contends that the RD should have considered the "totality of the circumstances" when considering these criteria. Id. (citations omitted). Specifically, NAIL asserts that the WRO RD previously found that the engineering technicians and the engineering employees share a community of interest that would make it appropriate for them to be included together in the IFPTE unit. See id. at 8. NAIL also contends that the WRO RD found that a unit consisting of all of the remaining employees is appropriate. See id. at 8-9. Further, NAIL asserts that the only change resulting from the reorganization is that the Activity became "freestanding." Id. According to NAIL, the totality of the circumstances in this case establishes that the units sought by NAIL and IFPTE remain appropriate.

      In support of its assertion that the totality of the circumstances establishes that the units sought by NAIL and IFPTE remain appropriate, NAIL contends that the reorganization has left the efficiency and effectiveness of the Activity's operations unaffected. See id. at 5. Specifically, NAIL asserts that the SUPSHIP employees represented by NAIL and IFPTE have worked well together for several years without any adverse affects on work efficiency. See id. NAIL also claims that the employees it represents, as well as IFPTE- represented employees, each have their own "discreet work and duties" on Activity projects. Id. In addition, NAIL [ v63 p66 ] argues that seating arrangements at the Activity are situated so that IFPTE-represented and NAIL-represented employees sit with their respective bargaining units. See id. According to NAIL, immediate supervisors for NAIL-represented employees do not represent IFPTE-represented employees, and vice-versa. See id. at 5-6. Further, NAIL contends that the Activity would have to administer two negotiated agreements if separate units for professional and non-professional employees existed. See id. at 6. In addition, NAIL states that the Yorktown Satellite Human Resources Office manages personnel matters for SUPSHIP and Activity employees. According to NAIL, the Activity, NAIL, and IFPTE have a good working relationship insofar as there has been no unfair labor practice or arbitration cases at the Activity. See id. at 6.

      NAIL further asserts that Activity employees and NAIL/IFPTE bargaining unit employees share "a common mission, common lines of supervision, similar job and pay classifications, benefits and hours of work." Id. at 7. NAIL also states that all employees are subject to uniform personnel and labor relations policies that have not changed since the transfer to the Activity. Id. at 8. NAIL asserts that the Authority should grant the application for review because the unit employees' working conditions remain the same, and, as such, the two stand-alone NAIL and IFPTE units remain appropriate.

B.     Activity's Opposition

      The Activity asserts that NAIL's arguments constitute nothing more than disagreement with the RD's conclusions and that the RD properly considered all of the § 7112(a) criteria in determining whether the units sought by NAIL and IFPTE are appropriate. See Activity's Opposition at 2. The Activity contends that, in applying the Port Hueneme test, the RD properly found that a proposed unit must only be an appropriate unit, rather than the most appropriate or only appropriate unit. See id. (citation omitted). According to the Activity, the RD properly analyzed the facts of this case and reached the correct legal conclusions.

      The Activity also disagrees with NAIL's assertion that the Activity's immediate supervisors do not supervise a combination of NAIL and IFPTE-represented employees. Specifically, the Activity asserts that the supervisor of the Engineering Division oversees nineteen IFPTE-represented employees and two NAIL-represented employees. See id. at 1-2.

IV.     Discussion

      The Authority will find that a gaining entity is a successor, and a union retains its status as the exclusive representative of employees who are transferred to the successor, when:

(1) An entire recognized unit, or a portion thereof, is transferred and the transferred employees: (a) are in an appropriate bargaining unit . . . after the transfer; and (b) constitute a majority of the employees in such unit;
(2) The gaining entity has substantially the same organizational mission as the losing entity, with the transferred employees performing substantially the same duties and functions under substantially similar working conditions . . .; and
(3) It has not been demonstrated that an election is necessary to determine representation.

Port Hueneme, 50 FLRA at 368.

      Thus, under Port Hueneme, 50 FLRA 363, the first requirement for finding a new employing entity to be a successor employer is that the transferred employees are included in and constitute the majority of a separate appropriate bargaining unit. Id. at 368. As set forth above, in determining whether a petitioned-for unit is appropriate, the Authority considers whether the unit would: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with the agency; and (3) promote efficiency of the operations of the agency. 5 U.S.C. § 7112(a); see also United States Dep't of the Navy, Fleet & Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 959 (1997) (FISC). A proposed unit must meet all three appropriate unit criteria in order to be found appropriate. See id. at 961 n.6. Determinations as to each of these criteria are made on a case-by-case basis. United States Dep't of the Army, Military Traffic Mgmt. Command, Alexandria, Va., 60 FLRA 390, 394 (2004) (Chairman Cabaniss concurring in relevant part, dissenting as to other matters). The Authority has set out factors for assessing each criterion, but has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. See id.

      With respect to the first appropriate unit criterion -- whether employees share a clear and identifiable community of interest -- the Authority examines such factors as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation. See United States Dep't of the Navy, Naval Facilities Eng'r Command, Se. Jacksonville, Fla., 62 FLRA 480, 487 (2008) (NFEC). In addition, the Authority considers factors such as whether the employees in the proposed unit are part of [ v63 p67 ] the same organizational component of the agency; support the same mission; are subject to the same chain of command; have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel office. See id.

      Analyzing the above factors, it is clear that the RD found that the proposed units do not share a community of interest that is separate and distinct from other Activity employees, and NAIL has not provided any basis for finding that the RD erred. In this regard, as found by the RD, the proposed units are: part of the same organizational component; support the same mission; and are subject to the same chain of command. See RD's Decision at 8. The RD further found that all of the employees work side-by-side in the same office; have similar or related duties, job titles, and work assignments; and are subject to the same general working conditions. [n5]  See id. The RD also found that the employees in the proposed units are governed by the same personnel and labor relations policies that are administered by the same personnel office, and do not have significant employment concerns or personnel issues that are different or unique from other Activity employees. See id. Accordingly, the record demonstrates that the employees in the proposed units do not share a community of interest that is separate and distinct from other Activity employees. See, e.g., NFEC, 62 FLRA at 487-88 (proposed units did not satisfy community of interest criteria where: employees worked for the same organizational component; supported the same mission; were subject to the same chain of command; shared similar or related job duties and titles; and were governed by same personnel policies that were administered centrally).

      As noted above, a proposed unit must meet all three criteria in order to be found appropriate. As NAIL has failed to demonstrate that the RD erred in evaluating the community of interest criterion, it is unnecessary to address whether the RD correctly found that the proposed units would not promote effective dealings or the efficiency of the Activity's operations. See United States Dep't of Commerce, Nat'l Weather Serv., Silver Spring, Md., 62 FLRA 472, 476 n.5 (2008).

      In so finding, we reject NAIL's argument that two stand-alone units remain appropriate because, apart from the fact that the Activity is now an independent organization, the most recent reorganization effected no change in the unit employees' working conditions. In this regard, NAIL essentially argues that despite the fact that nonprofessional employees from both its and IFPTE's units share -- and have shared for years -- many working conditions, two stand-alone units were certified appropriate by the WRO RD, and thus, should remain appropriate. We note that, although two stand-alone units were certified appropriate by the WRO RD, those units were never contested before, or certified by, the Authority. See NAIL Ex. 2 at 8 (decision and order of WRO RD in Case No. WA-RP-00007 stating that both parties waived their right to file an application for review in accordance with § 2422.31 of the Authority's Regulations). Consequently, NAIL's argument does not provide a basis for granting its application.

      As NAIL has provided no basis for finding that the RD erred in his conclusion that the separate units sought by NAIL and IFPTE would not be appropriate, we find that NAIL has not established that the RD failed to apply established law and deny the application for review.

V.      Order

      The application for review is denied. [ v63 p68 ]


Separate Opinion of Chairman Beck:

      I agree with our determination that the Regional Director did not err and did not fail to apply established law in concluding that separate units of professional and non-professional employees are "appropriate." However, I again write separately to discuss potential consequences that may occur as a result of our application of the Section 7112(d) "appropriate unit" standard.

      As I noted in, Nat'l Labor Rel. Bd., Wash., D.C., 63 FLRA No. 16, slip op. at 13 (December 12, 2008), the Federal Service Labor-Management Relations Statute does not require that a proposed bargaining unit be the "most appropriate." Rather, the Statute requires only the minimal showing that a bargaining unit be "appropriate." United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson AFB, Ohio, 55 FLRA 359, 364 (1999). Under these circumstances, it would be difficult to establish legal error regardless of whether the RD found that the existing units, separate professional or non-professional units, or a single, consolidated unit was "appropriate."

      A potential tension is created by the Statute's instruction that we are to determine the appropriate bargaining unit by identifying that which "ensure[s] employees the fullest freedom in exercising [their organizational rights]" and "promote[s] effective dealings with . . . the agency[,]" while also "promot[ing] . . . efficiency of the operations of the agency[.]" 5 U.S.C. § 7112(a). It is not difficult to imagine situations in which a union's proposed bargaining unit maximizes employees' organizational rights while impairing the efficiency of agency operations. Alternatively, the bargaining unit that is most consistent with efficient agency operations might not be the one that facilitates that greatest expression of employee organizational rights. The Statute gives little guidance as to how these potentially competing interests are to be reconciled, particularly since it does not explicitly direct us to determine the "most appropriate" unit given the competing concerns.

      This situation raises a serious question of whether this lack of clarity is consistent with the effectiveness and efficiency contemplated by the Statute. 5 U.S.C. § 7101(b). I am also concerned that there is no impediment to the parties or the Agency from again petitioning for a new bargaining unit structure, pursuant to 5 C.F.R § 2422.2, once the units certified by the RD are established.

      Despite these concerns, I cannot conclude from the record before us that separate units comprised of professional and non-professional employees are not appropriate.


Separate Opinion of Member Carol Waller Pope:

      It is important to note that Chairman Beck and I are in complete agreement as to not only the decision to deny the application for review of the RD's decision but also the rationale for doing so. I write separately only in response to the Chairman's separate opinion, which posits a lack of clarity regarding issues that are, in my view, well settled.

      First, the principle that the Authority does not examine a proposed unit to determine whether it is the most appropriate unit but, instead, determines only whether it is an appropriate unit under § 7112 is deeply embedded in Federal labor law. See, e.g., Def. Logistics Agency, Def. Supply Ctr. Columbus, Ohio, 53 FLRA 1114, 1127 n.7 (1998) (Authority refused to adopt rule that only the most appropriate unit be certified on ground that there was no evidence or reason supporting "such a dramatic shift in the law."). See also United States Dep't of Justice, Office of Mgmt. and Fin., 1 FLRA 669, 673 n.6 (1979) (in case decided under Executive Order 11491, as amended, Authority stated that its conclusion that petitioned-for units were appropriate should not be construed as inferring that other units might not be appropriate also). The same principle applies in the private sector. See Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 610 (1991) (under National Labor Relations Act, employees may seek to organize "a unit" that is "appropriate" -- not necessarily the single most appropriate unit."); Dean Transp. v. NLRB, No. 07-1262, 2009 U.S. App. LEXIS 198, at *19 (D.C. Cir. Jan. 9, 2009) (court noted that NLRB "need only select an appropriate unit, not the most appropriate unit."). The principle clearly furthers employees' rights to organize for the purpose of collective bargaining, consistent with the criteria for determining whether a unit is appropriate; precluding certification unless the most appropriate unit was sought would leave many employees without representation.

      Second, as I noted in Nat'l Labor Rel. Bd., Wash., D.C., 63 FLRA No. 16, slip op. at 10 n.11 (December 12, 2008), long-standing precedent indicates that, absent changed circumstances, an agency may not alter previously certified appropriate units. See id. and decisions cited therein. Similarly, unions may not sever employees from existing appropriate units absent unusual circumstances. See, e.g., United States Dep't of the Navy, Naval Air Station Jacksonville, Jacksonville, Jacksonville, Fla., 61 FLRA 139, 142 (2005) (The [ v63 p69 ] Authority has long held that absent unusual circumstances, where an established bargaining unit continues to be appropriate, a petition seeking to sever employees . . . will be dismissed[.]").

      Finally, I find no tension between the portions of § 7112(a) requiring the Authority to: (1) determine whether units should be established on various bases in order to ensure employees the fullest freedom in exercising rights under the Statute; and (2) determine a unit to be appropriate only if it will ensure a community of interest and promote effective dealings with and efficiency of agency operations. If a proposed unit impairs the efficiency of agency operations, then it is not appropriate, without reference to whether the unit would ensure employees freedom in exercising their rights. See, e.g., United States Dep't of the Navy, Fleet and Indus. Supply Ctr. Norfolk, Norfolk, Va., 62 FLRA 497 (2008) (Authority denied application for review of determination that petitioned-for units were not appropriate because, among other things, the units would not promote efficiency of agency operations); Dep't of Transp., Wash., D.C., 5 FLRA 646, 653 (1981) (same).



Footnote # 1 for 63 FLRA No. 23 - Authority's Decision

   The separate opinions of Chairman Beck and Member Pope are set forth at the end of this decision.


Footnote # 2 for 63 FLRA No. 23 - Authority's Decision

   Section 2422.31 of the Authority's Regulations provides, in pertinent part:

(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1)     The decision raises an issue for which there is an absence of precedent;
(2)     Established law or policy warrants reconsideration; or,
(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.

Footnote # 3 for 63 FLRA No. 23 - Authority's Decision

   As no party has filed an appeal concerning the RD's determination that a unit of