[ v01 p706 ]
01:0706(79)CA
The decision of the Authority follows:
1 FLRA No. 79
GENERAL SERVICES ADMINISTRATION,
REGION 3
Activity/Petitioner
and
FEDERAL EMPLOYEES AND TRANSPORTATION WORKERS,
LOCAL 960, LABORERS INTERNATIONAL UNION OF
NORTH AMERICA (LIUNA), MTC, AFL-CIO
Labor Organization
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2151, AFL-CIO
Labor Organization
Assistant Secretary
Case Nos. 22-08858(CA),
11-08681(RA) and 22-08699(CU)
DECISION AND ORDER
ON FEBRUARY 16, 1979, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE ENTITLED
PROCEEDING, FINDING THAT THE ACTIVITY/PETITIONER HAD NOT ENGAGED IN THE
UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT
THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. FURTHER HE FOUND THAT THE
1974 REORGANIZATION DID NOT MATERIALLY AFFECT THE UNIT IN QUESTION AND
RECOMMENDED THAT THE REPRESENTATIVE STATUS (RA) PETITION HEREIN AND THE
CLARIFICATION OF UNIT (CU) PETITION BE DISMISSED. NO EXCEPTIONS WERE
FILED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, WE
HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS. /1A/
ORDER
IS IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 22-08858(CA) AND THE PETITIONS IN ASSISTANT SECRETARY CASE NOS.
22-08681(RA) AND 22-8699(CU) BE, AND THEY HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 5, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
DONALD L. ISAAC, BUSINESS REPRESENTATIVE
THOMAS E. CALLOWAY, SR., INTERNATIONAL REPRESENTATIVE
AND TRUSTEE
FEDERAL EMPLOYEES AND TRANSPORTATION WORKERS
LOCAL 960 LIUNA
1030-15TH STREET, N.W.
WASHINGTON, D.C. 20005
FOR LABOR ORGANIZATION/COMPLAINANT
FEDERAL EMPLOYEES AND TRANSPORTATION
WORKERS, LOCAL 960 LIUNA
EDWARD P. DENNEY, LABOR-MANAGEMENT RELATIONS OFFICER
HENRY P. LEIBOWITZ, LABOR-MANAGEMENT RELATIONS SPECIALIST
GENERAL SERVICES ADMINISTRATION, REGION 3
WASHINGTON, D.C. 20407
FOR ACTIVITY/PETITIONER
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DECISION, ORDER AND RECOMMENDATION
STATEMENT OF THE CASE
THIS PROCEEDING ARISES UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491,
AS AMENDED (HEREINAFTER REFERRED TO AS THE ORDER). PURSUANT TO
REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR MANAGEMENT
RELATIONS, AN ORDER CONSOLIDATING CASES, A NOTICE OF HEARING ON
COMPLAINT AND A NOTICE OF REPRESENTATION HEARING WERE ISSUED IN THE
ABOVE NUMBERED CASES ON APRIL 24, 1978. THE ORDER CONSOLIDATING CASES
CONSOLIDATED FOR HEARING CASES NUMBERED 22-8858(CA), 22-8681(RA) AND
22-8699(CU). FEDERAL EMPLOYEES AND TRANSPORTATION WORKERS, LOCAL 960,
LABORERS INTERNATIONAL UNION OF NORTH AMERICA, MTC, AFL-CIO (HEREINAFTER
CALLED LIUNA OR LOCAL 960) FILED THE COMPLAINT IN CASE NO. 22-8858(CA)
ON MARCH 8, 1978, WHICH ALLEGED THAT GENERAL SERVICES ADMINISTRATION,
REGION 3, (HEREINAFTER CALLED GSA OR ACTIVITY OR PETITIONER) VIOLATED
SECTIONS 19(A)(1)(3)(5) & (6) OF THE ORDER BY REFUSING TO RENEGOTIATE A
COLLECTIVE BARGAINING AGREEMENT WITH LIUNA AND BY OTHERWISE SUPPORTING
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2151, AFL-CIO
(HEREINAFTER CALLED AFGE LOCAL 2151). THE PETITIONER FILED THE PETITION
IN CASE NUMBER 22-8681(RA) ON JANUARY 5, 1978 CONTENDING THAT, DUE TO AN
ACTIVITY REORGANIZATION, THE COLLECTIVE BARGAINING UNIT REPRESENTED BY
LIUNA IS NO LONGER APPROPRIATE AND THE PETITION IN CASE NUMBER
22-8699(CU) ON JANUARY 18, 1978 CONTENDING THAT CERTAIN EMPLOYEES IN THE
COLLECTIVE BARGAINING UNIT DISCUSSED ABOVE WERE ACCRETED TO A UNIT
REPRESENTED BY AFGE LOCAL 2151.
A HEARING WAS HELD IN WASHINGTON, D.C. AND THE ACTIVITY AND LOCAL 960
WERE REPRESENTED /1/ AND AFFORDED A FULL OPPORTUNITY TO ADDUCE EVIDENCE
AND CALL, EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. THE
ACTIVITY AND LOCAL 960 FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, /2/ INCLUDING MY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSION, AND RECOMMENDATION:
FINDINGS OF FACT
1. IN 1968, LOCAL 960 WAS GRANTED EXCLUSIVE RECOGNITION UNDER
EXECUTIVE ORDER 10988 FOR A COLLECTIVE BARGAINING UNIT OF WAGE GRADE
EMPLOYEES EMPLOYED IN THE ACTIVITY'S SPECIAL SERVICES BRANCH (SSB),
BUILDING OPERATIONS DIVISION, PUBLIC BUILDINGS SERVICE (PBS).
2. BASICALLY THIS UNIT REPRESENTED BY LOCAL 960 CONSISTED OF
EMPLOYEES EMPLOYED IN SSB'S CENTRAL, WEST AND VIRGINIA HEATING SECTIONS;
SSB'S CENTRAL REPAIR SECTION'S GROUNDS MAINTENANCE AND LANDSCAPE
ACTIVITY; AND SSB'S MOVING AND SERVICES SECTION, EXCEPT CARPENTERS,
GENERAL MECHANICS AND RATING SUPERVISORS.
3. THE ABOVE DESCRIBED EMPLOYEES IN CENTRAL, WEST AND VIRGINIA
HEATING SECTIONS WERE, AT ALL TIMES MATERIAL HEREIN, PHYSICALLY LOCATED
AT THEIR 3 RESPECTIVE HEATING PLANTS. THE EMPLOYEES IN MOVING AND
SERVICES SECTION WERE AT ALL TIMES MATERIAL HEREIN HEADQUARTERED IN
BUILDING 137 OF NAVY YARD, EXCEPT FOR A SMALL NUMBER WHO WERE, AT ALL
TIMES, PERMANENTLY STATIONED IN OTHER BUILDINGS. THE EMPLOYEES OF THE
GROUNDS MAINTENANCE AND LANDSCAPING ACTIVITY WERE AT TIMES MATERIAL
HEREIN HEADQUARTERED IN A BUILDING IN THE NAVY YARD. WHEN THE BUILDING
WAS DEMOLISHED THE LANDSCAPING EMPLOYEES WERE MOVED TO A PARKING LOT IN
THE NAVY YARD WHERE THEY REMAINED HEADQUARTERED FOR ABOUT SIX MONTHS.
AS OF 1974 THE EMPLOYEES OF THE GROUNDS MAINTENANCE AND LANDSCAPING
ACTIVITY WAS HEADQUARTERED AT 10 P STREET, N.W., ABOUT FOUR BLOCKS FROM
NAVY YARD BUILDING 137, AND CERTAIN EQUIPMENT WAS STILL PARKED AND
STORED IN THE NAVY YARD.
4. THE ACTIVITY AND LIUNA ENTERED INTO A FULL AND COMPLETE
COLLECTIVE BARGAINING AGREEMENT COVERING THE ABOVE DESCRIBED UNIT
EFFECTIVE MARCH 6, 1973 FOR TWO YEARS AND WITH AUTOMATIC ONE YEAR
RENEWALS, UNLESS EITHER PARTY GIVES TIMELY NOTICE OF ITS DESIRE TO
TERMINATE AND RENEGOTIATE THE AGREEMENT.
5. ON FEBRUARY 7, 1974 THE ACTIVITY UNDERWENT A REORGANIZATION,
INCLUDING PBS. PART OF THE REORGANIZATION OF PBS ABOLISHED SSB AND THE
EMPLOYEES OF SSB WERE ASSIGNED TO NEW PBS ORGANIZATIONS. AS PART OF THE
REORGANIZATION THE EMPLOYEES OF THE CENTRAL REPAIR SECTION (GROUND
MAINTENANCE AND LANDSCAPING ACTIVITY) AND THE MOVING AND SERVICES
SECTION WERE TRANSFERRED TO THE NEW CENTRAL SUPPORT FIELD OFFICE, WITH
THE MOVING FORCE REMAINING IN BUILDING 137 AT THE NAVY YARD AND THE
MAINTENANCE AND LANDSCAPING EMPLOYEES MOVING 4 BLOCKS TO THE CENTRAL
SUPPORT FIELD OFFICE HEADQUARTER AT 10 P STREET, N.W.
6. THE EMPLOYEES IN THE MOVING FORCE AND THE MAINTENANCE AND
LANDSCAPING SECTION CONTINUED TO PERFORM THE SAME DUTIES IN SAME WAY AND
UNDER THE SAME FIRST AND SECOND LEVEL SUPERVISION AS THEY DID PRIOR TO
THE REORGANIZATION.
7. THE CENTRAL SUPPORT FIELD OFFICE AT 10 P STREET, N.W. ALSO HOUSES
A NUMBER OF SHOPS STAFFED BY A VARIETY OF OCCUPATIONAL GROUPS (E.G.
CARPENTER, ROOFER, SHEET METAL MECHANIC, ETC.) THAT ARE IN A COLLECTIVE
BARGAINING UNIT REPRESENTED BY AFGE LOCAL 2151.
8. THE 1974 REORGANIZATION TRANSFERRED THE THREE HEATING SECTIONS
REPRESENTED BY LOCAL 960 TO THE NEWLY FORMED HEATING OPERATION AND
TRANSMISSION AREA OFFICE (HOTA) TOGETHER WITH FIVE ADDITIONAL PLANTS NOT
REPRESENTED BY LOCAL 960.
9. THE EMPLOYEES IN THE THREE HEATING PLANTS REPRESENTED BY LOCAL
960 PERFORMED THE SAME FUNCTIONS AND DUTIES BOTH BEFORE AND AFTER THE
REORGANIZATION UNDER THE SAME FIRST AND SECOND LEVEL SUPERVISION. UNDER
HOTA EACH PLANT IS HEADED BY A PLANT CHIEF WHO REPORTS TO HIS FIELD
MANAGER WHO IN TURN REPORTS TO THE AREA MANAGER. THE VIRGINIA PLANT IS
NOT IN THE SAME FIELD OFFICE AS THE CENTRAL AND WEST PLANTS AND ALL
THREE UP THERE ARE IN FIELD OFFICES WITH CERTAIN PLANTS NOT REPRESENTED
BY LIUNA.
10. ALL OF THE ACTIVITY'S WASHINGTON AREA WAGE GRADE EMPLOYEES ARE
SERVICED BY A CENTRAL PERSONNEL OFFICE, ARE SUBJECT TO THE SAME
REDUCTION IN FORCE PROCEDURES, HAVE THE SAME COMPETITIVE AREA IN A RIF
AND HAVE THE SAME MERIT PROMOTION PLAN AS WELL AS THE SAME AREA OF
CONSIDERATION IN PROMOTION ACTIONS.
11. WITH RESPECT TO THE EMPLOYEES REPRESENTED BY LOCAL 960, THE
REORGANIZATION DID NOT CHANGE THE AREA OF CONSIDERATION FOR PROMOTIONS
OR THE AREA OF CONSIDERATION IN REDUCTION IN FORCE SITUATIONS.
12. THE COLLECTIVE BARGAINING AGREEMENT BETWEEN LOCAL 960 AND GSA
WAS EXTENDED BY LETTERS IN 1975, 1976, AND 1977.
13. IN 1976, LOCAL 960 FILED A PETITION TO AMEND AND CLARIFY THE
UNIT TO REFLECT A CHANGE IN THE UNION'S NAME. THE ACTIVITY DID NOT
OPPOSE THE UNION'S PETITION, BUT RATHER, IN ITS LETTER TO THE DEPARTMENT
OF LABOR, INDICATED THAT DUE TO THE 1974 REORGANIZATION AT PBS THE
ACTIVITY WANTED TO MANDATORY EXCLUSIONS ADDED TO THE UNIT DESCRIPTION.
ACCORDINGLY ON AUGUST 24, 1976 THE UNIT IN QUESTION WAS AMENDED AND
CLARIFIED.
14. THE ACTIVITY EMPLOYS A TOTAL OF ABOUT 7700 EMPLOYEES AND THEY
ARE DIVIDED INTO ABOUT 29 COLLECTIVE BARGAINING UNITS AND ARE
REPRESENTED BY 24 LOCAL UNIONS. THERE ARE CURRENTLY APPROXIMATELY 19
DIFFERENT COLLECTIVE BARGAINING AGREEMENTS IN EFFECT.
15. DURING MID-DECEMBER 1977 THE OFFICIALS OF THE ACTIVITY BEGAN TO
CONSIDER WHETHER IT WOULD BE APPROPRIATE TO FILE A PETITION TO CHALLENGE
THE APPROPRIATENESS OF THE UNIT REPRESENTED BY LOCAL 960 BECAUSE OF THE
1974 REORGANIZATION.
16. BY LETTER DATED DECEMBER 27, 1977, LOCAL 960 ADVISED THE
ACTIVITY THAT IT WISHED TO REOPEN NEGOTIATIONS OF THE COLLECTIVE
BARGAINING AGREEMENT.
17. THE ACTIVITY REFUSED TO BARGAIN WITH LOCAL 960, CONCERNING A NEW
CONTRACT AND, AFTER HAVING RECEIVED LIUNA'S REQUEST TO NEGOTIATE FOR A
NEW CONTRACT, THE ACTIVITY FILED THE PETITIONS IN CASE NUMBER
22-8681(RA) AND 22-8699(CU).
18. THE RECORD DOES NOT ESTABLISH THAT THE ACTIVITY IN ANY OTHER
RESPECT REFUSED TO RECOGNIZE OR BARGAIN WITH LOCAL 960. THE ACTIVITY
STATED IT WOULD CONTINUE TO IMPLEMENT THE EXISTING COLLECTIVE BARGAINING
AGREEMENT AND WOULD FOLLOW THE SAME PERSONNEL POLICIES.
CONCLUSIONS OF LAW
IN THE SUBJECT SITUATION LOCAL 960 CONTENDS THAT THE ACTIVITY
VIOLATED THE ORDER BY REFUSING TO NEGOTIATE A NEW CONTRACT WITH LOCAL
960 COVERING THE EXISTING UNIT THAT LOCAL 960 TRADITIONALLY REPRESENTED.
THE ACTIVITY URGES, HOWEVER, THAT AS A RESULT OF A 1974 REORGANIZATION,
THE UNIT IN QUESTION CEASED TO EXIST, THEREBY RAISING A QUESTION
CONCERNING REPRESENTATION. THIS RESULTED IN THE FILING OF THE RA
PETITION AND THUS ENTITLED THE ACTIVITY TO REFUSE TO BARGAIN WITH LIUNA
FOR A CONTRACT COVERING THAT UNIT. ALSO, WITH RESPECT TO THE
REORGANIZATION, THE ACTIVITY CONTENDS THAT CERTAIN EMPLOYEES IN THE
LOCAL 960 UNIT WERE ACCRETED TO A UNIT REPRESENTED BY AFGE LOCAL 2151
AND THEREFORE THE ACTIVITY FILED THE CU PETITION. FURTHER THE ACTIVITY
CONTENDS THAT THERE REALLY IS NO LONGER ANY COMMUNITY OF INTEREST AMONG
THE EMPLOYEES IN THE UNIT REPRESENTED BY LOCAL 960 AND THAT IN ANY
EVENT, BECAUSE THERE ARE SOME 29 DIFFERENT UNITS WITHIN THE ACTIVITY,
THERE IS SO MUCH SUCH FRAGMENTATION THAT IT LEADS TO INEFFICIENCY AND IS
THEREFORE INAPPROPRIATE.
IN 1968 THE ACTIVITY VOLUNTARILY RECOGNIZED THAT THE UNIT IN QUESTION
WAS APPROPRIATE AND VOLUNTARILY RECOGNIZED LIUNA AS THE COLLECTIVE
BARGAINING AGENT FOR THAT UNIT. FOR TEN YEARS THE ACTIVITY AND LOCAL
960 HAD AN ACTIVE COLLECTIVE BARGAINING RELATIONSHIP WITH RESPECT TO THE
UNIT IN QUESTION INCLUDING A COLLECTIVE BARGAINING AGREEMENT, WHICH WAS,
AFTER THE INITIAL TWO YEAR TERM, RENEWED YEARLY ON THREE OCCASIONS. IN
LIGHT OF SUCH A LENGTHY AND EXTENSIVE COLLECTIVE BARGAINING HISTORY
INVOLVING THE UNIT IN QUESTION, SUCH UNIT MUST BE PRESUMED TO BE
APPROPRIATE FOR COLLECTIVE BARGAINING. TO HOLD OTHERWISE AND TO PERMIT
A PARTY TO RAISE A QUESTION CONCERNING THE APPROPRIATENESS OF AN
EXISTING UNIT AFTER SUCH A LENGTHY AND EXTENSIVE HISTORY AND TRADITION
OF COLLECTIVE BARGAINING WOULD BE TO INTERJECT A VERY SUBSTANTIAL AND
UNWARRANTED ELEMENT OF INSTABILITY INTO THE COLLECTIVE BARGAINING
RELATIONSHIP AND WOULD THUS FRUSTRATE THE PURPOSES OF THE ORDER. CF.
GSA, FEDERAL SUPPLY SERVICES, RARITAN DEPOT, EDISON, NEW JERSEY, A/SLMR
NO. 66.
THE ACTIVITY CONTENDS, HOWEVER, THAT THE UNIT IN QUESTION CAN NO
LONGER BE DEEMED APPROPRIATE BECAUSE IT DOES NOT MEET THE REQUIREMENTS
OF SECTION 10(B) OF THE ORDER SINCE IT DOES NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF OPERATIONS. HOWEVER, THE ONLY EVIDENCE TO
SUPPORT THIS CONTENTION IS THAT THE ACTIVITY IS CURRENTLY FACED WITH 29
DIFFERENT UNITS REPRESENTED BY 24 DIFFERENT LABOR ORGANIZATIONS. SUCH
EVIDENCE, ALONE IS NOT SUFFICIENT TO ESTABLISH THAT THE UNIT IN QUESTION
FAILS TO PROMOTE EFFICIENCY AND EFFECTIVENESS. CF. DEFENSE SUPPLY
AGENCY, DCASR., A/SLMR NO. 687; DEPARTMENT OF STATE, PASSPORT OFFICE,
CHICAGO, ILL., A/SLMR NO. 697; AND DEFENSE SUPPLY AGENCY, DCAS, A/SLMR
NO. 559.
IN LIGHT OF ALL OF THE FOREGOING IT IS CONCLUDED, THAT THE EXISTING
UNIT REPRESENTED BY LOCAL 960 IS APPROPRIATE ABSENT A FINDING THAT THE
REORGANIZATION OF 1914 SUFFICIENTLY CHANGED THE UNIT SO AS TO DESTROY
ITS APPROPRIATENESS. IT IS CONCLUDED THAT THE REORGANIZATION DID NOT
SUFFICIENTLY CHANGE THE OPERATION SO AS TO DESTROY THE APPROPRIATENESS
OF THE UNIT. THEREFORE ALTHOUGH THERE WERE SOME "PAPER CHANGES" AND PBS
WAS DESTROYED AND ITS COMPONENTS TRANSFERRED TO DIFFERENT PARTS OF THE
ACTIVITY, THE EMPLOYEES IN THE UNIT IN QUESTION CONTINUED TO PERFORM THE
SAME EXACT DUTIES UNDER THE SAME FIRST AND SECOND LEVEL SUPERVISION. IN
TWO OF THE COMPONENTS OF THE UNIT, THE MOVING OPERATION AND THE HEATING
PLANT OPERATIONS, THE EMPLOYEES WORKED IN THE SAME PHYSICAL LOCATION AND
IN THE THIRD COMPONENT, MAINTENANCE AND LANDSCAPING, THE HEADQUARTERS
WAS MOVED 4 BLOCKS, BUT THE EMPLOYEES ONLY REPORTED THERE IN THE MORNING
AND THEN CONTINUED TO WORK ALL OVER THE CITY, THE WAY THEY HAD PRIOR TO
THE REORGANIZATION. FURTHER THESE LATTER EMPLOYEES CONTINUED TO STORE
MUCH OF THEIR EQUIPMENT IN THE NAVY YARD. FINALLY WITH RESPECT TO ALL
THE EMPLOYEES IN THE UNIT, THE REORGANIZATION DID NOT CHANGE EITHER THE
AREA OF CONSIDERATION FOR PROMOTION OR IN RIF SITUATIONS. THE RECORD
DOES NOT ESTABLISH THAT INTERCHANGE BETWEEN EMPLOYEES WITHIN THE UNIT IN
QUESTION AND OTHER EMPLOYEES WAS INCREASED AS A RESULT OF THE
REORGANIZATION. FINALLY THE EMPLOYEES IN THE UNIT CONTINUED TO BE
CLEARLY IDENTIFIABLE.
IT MUST BE FURTHER TAKEN INTO CONSIDERATION THAT THE 1974
REORGANIZATION TOOK PLACE 4 YEARS PRIOR TO THE REFUSAL TO RENEGOTIATE
THE CONTRACT AND THE FILING OF THE PETITIONS IN THE SUBJECT CASE.
DURING THIS 4 YEAR PERIOD, THE COLLECTIVE BARGAINING AGREEMENT WAS
RENEWED 3 TIMES AND A CU PETITION WAS FILED IN 1976 WHICH RESULTED, WITH
SPECIFIC REFERENCE TO THE 1974 REORGANIZATION, IN AN AMENDMENT TO AND
CLARIFICATION OF THE UNIT. THE RECORD FAILS TO ESTABLISH THAT AT ANY
TIME DURING THIS PERIOD DID THE ACTIVITY CONTEND THAT THE REORGANIZATION
WAS SUFFICIENT TO DESTROY THE APPROPRIATENESS OF THE UNIT. ACCORDINGLY,
I AM CONSTRAINED TO CONCLUDE THAT THE 1974 REORGANIZATION DID NOT
DESTROY THE APPROPRIATENESS OF THE UNIT IN QUESTION. CF. NAVAL
AEROSPACE AND REGIONAL MEDICAL CENTER, PENSACOLA, FLA., A/SLMR NO. 603.
BECAUSE THE 1974 REORGANIZATION DID NOT MATERIALLY AFFECT THE UNIT IN
QUESTION, I MUST CONCLUDE THAT NO QUESTION CONCERNING REPRESENTATION
EXISTS AND I MUST RECOMMEND THAT THE PETITION IN CASE NUMBER 22-8681(RA)
SHOULD BE DISMISSED. FURTHER SINCE THE UNIT REMAINED INTACT AND THE
RECORD DOES NOT ESTABLISH THAT THERE WAS ANY ACCRETION TO THE UNIT
REPRESENTED BY AFGE LOCAL 2151, I MUST RECOMMEND THAT THE PETITION IN
CASE NUMBER 62-8699(CU) SHOULD BE DISMISSED.
IT IS CLEAR THAT IF AN ACTIVITY DOUBTS WHETHER AN INCUMBENT UNION
CONTINUES TO REPRESENT A MAJORITY OF THE EMPLOYEES IN A UNIT OR WHETHER
THE UNIT IS APPROPRIATE THE ACTIVITY MUST FILE A TIMELY RA PETITION AND,
DURING THE PENDENCY OF THE PETITION, MUST CONTINUE TO APPLY THE EXISTING
COLLECTIVE BARGAINING AGREEMENT AND TO RECOGNIZE THE INCUMBENT UNION.
CF. DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, YUMA PROJECTS
OFFICE, YUMA, ARIZONA, FLRA NO. 74A-52 (SEPTEMBER 17, 1976) AND DEFENSE
SUPPLY AGENCY, ABERDEEN, MD., FLRC NO. 74A-22 (DECEMBER 9, 1976), A/SLMR
NO. 615. IN THE INSTANT CASE, THE ACTIVITY FILED A TIMELY RA PETITION
AND CLEARLY STATED THAT IT STILL CONTINUED TO APPLY THE EXISTING
COLLECTIVE BARGAINING AGREEMENT AND, APPARENTLY, CONTINUED TO RECOGNIZE
LOCAL 960 AS THE COLLECTIVE RA PETITION. THE ACTIVITY, HOWEVER, QUITE
PROPERLY REFUSED TO BARGAIN A NEW COLLECTIVE BARGAINING AGREEMENT WITH
LOCAL 960 DURING THE PENDENCY OF THE RA PETITION. CF. DEPARTMENT OF THE
INTERIOR, BUREAU OF RECLAMATION, YUMA PROJECTS OFFICE, YUMA, ARIZONA,
SUPRA AND HEADQUARTER, U.S. ARMY AVIATION SYSTEMS COMMAND, 72A-30 (JULY
25, 1973). IN SUCH CIRCUMSTANCES, ALTHOUGH I RECOMMEND THAT THE RA
PETITION BE DISMISSED, THE RECORD DOES NOT ESTABLISH THAT THE RA
PETITION WAS FRIVOLOUS, UNREASONABLE OR FILED IN BAD FAITH OR SOLELY TO
AVOID OR DELAY BARGAINING. RATHER, NOTING THAT THE RECORD FAILS TO
ESTABLISH ANY HISTORY OF BAD FAITH ON THE PART OF THE ACTIVITY, THE
RECORD ESTABLISHES THAT THE ACTIVITY HAD A REAL QUESTION CONCERNING
WHETHER THE EXCITING UNIT HAD CEASED TO MAINTAIN ITS INTEGRITY AS A
COLLECTIVE BARGAINING UNIT. IN SUCH CIRCUMSTANCES, EVEN THOUGH IF THE
RA PETITION IS DISMISSED THE ACTIVITY WILL HAVE NO BARGAIN WITH LOCAL
960 FOR A NEW CONTRACT, IT IS CONCLUDED THAT THE ACTIVITY DID NOT
UNLAWFULLY REFUSE TO BARGAIN OR UNLAWFULLY WITHDRAW RECOGNITION FROM
LOCAL 960 AND THEREFORE DID NOT VIOLATE SECTION 19(A)(5) AND (6) OF THE
ORDER.
FINALLY THE RECORD IS DEVOID OF ANY EVIDENCE TO ESTABLISH THAT THE
FILING OF THE CU PETITION WAS IN BAD FAITH OR FOR ANY UNLAWFUL MOTIVE OF
ASSISTING AFGE LOCAL 2151. ACCORDINGLY, IT IS CONCLUDED THAT THE
ACTIVITY DID NOT VIOLATE SECTION 19(A)(3) OF THE ORDER. SIMILARLY, IT
IS CONCLUDED THAT THE ACTIVITY DID NOT VIOLATE SECTION 19(A)(1) OF THE
ORDER.
ORDER
IN LIGHT OF THE FOREGOING, I ORDER THAT THE COMPLAINT IN THE SUBJECT
CASE SHOULD BE DISMISSED IN ITS ENTIRETY.
RECOMMENDATION
IT IS HEREBY RECOMMENDED THAT THE PETITION IN CASES NUMBERED
22-8681(RA) AND 22-8699(CU) BE DISMISSED.
SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 16, 1979
WASHINGTON, D.C.
SAC:LE
/1A/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
ACT OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD HAVE BEEN REACHED BY THE AUTHORITY IF THE CASE HAD
ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/1/ AFGE LOCAL 2151 WAS SERVED WITH THE NOTICES OF HEARING BUT DID
NOT APPEAR AT THE HEARING OR FILE A BRIEF.
/2/ THE TRANSCRIPT OF THE HEARING IS HEREBY CORRECTED TO REFLECT ON
PAGE 206, LINES 22-23 THAT WITNESS TEDESCO RESPONDED "YES" TO THE
QUESTION.