[ v45 p281 ]
45:0281(25)RA
The decision of the Authority follows:
45 FLRA No. 25
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for review filed by IAM under section 2422.17(a) of the Authority's Rules and Regulations. Neither the Activity nor AFGE filed any submission in this case.
In her Decision and Order on Petitions for Representative Status, the Regional Director (RD) found that, as a result of a reorganization by the Activity, the bargaining units for which AFGE and IAM (collectively referred to as the Unions) had been certified as exclusive representatives are no longer appropriate. The RD found that the Activity, therefore, is under no obligation to continue to recognize AFGE and IAM as the exclusive representatives for the employees formerly in those units. The RD found that an Activity-wide unit appeared to be appropriate, but declined to order an election in this matter and stated that, unless her decision is overturned by the Authority, she will revoke the certifications of AFGE and IAM.
IAM seeks review of the RD's failure to make a conclusive appropriate unit finding, her refusal to order an election, and her expressed intention to revoke the Unions' certifications.1/ We grant the application for review because a substantial question of law or policy is raised because of the absence of, or a departure from, Authority precedent on the issues raised by the application. On review of the RD's decision, we find, for the reasons discussed below, that the RD improperly decided to revoke the certifications of AFGE and IAM and we will direct the RD not to take such action. However, we find that the RD did not err in deciding that in the circumstances of this case an election is not warranted and that an appropriate unit determination may be made only upon the filing of a petition for certification of representative.
II. Facts and Regional Director's Decision
The Activity filed the petitions in this case following the Activity's reorganization in 1989 of its Personnel Services Directorate (the PS Directorate). Prior to the reorganization, the PS Directorate consisted of three separate departments: (1) the Marine Corps Exchange (the Exchange); (2) Special Services; and (3) the Clubs System.
In May 1970, AFGE was certified as the exclusive representative of all civilian employees of the Exchange. At that time, AFGE also began to represent barbers, employed by the Exchange, in a separate bargaining unit. In June 1970, IAM was certified as the exclusive representative of all non-appropriated fund employees of Special Services. At the time of the reorganization in 1989, the Exchange employed approximately 341 employees, Special Services employed approximately 106 employees, and the Clubs System, whose employees have been unrepresented, employed approximately 115 employees.
Prior to the reorganization, the Exchange, Special Services, and the Clubs System were functionally separate, with each department having its own separate support system, accounting system, and personnel policies. Each department was headed by a director, and the directors reported separately to Marine Corps Headquarters. Each department had a separate disciplinary system and employees in the bargaining units were in separate areas of consideration for purposes of promotion and reduction-in-force actions.
In 1989, the Activity underwent a reorganization and the Morale, Welfare and Recreation Directorate (the MWR Directorate) was formed to take the place of the PS Directorate. The MWR Directorate consists of eight functional departments, separated along operational and support services lines. The former Exchange, Special Services and Clubs System departments were merged together under one director, who oversees the entire operation and reports to Marine Corps Headquarters. The merger resulted in a common support system, a common accounting system, and common personnel policies. There is only one disciplinary system within the MWR Directorate, and all employees of the MWR Directorate are in the same area of consideration.
Subsequently, the Activity filed the petitions for representative status (RA) in this case, seeking a determination by the RD that AFGE's and IAM's bargaining units are no longer appropriate as a result of the reorganization.
The RD found that the units of PS Directorate employees represented by AFGE and IAM are no longer appropriate because, as a result of the Activity's reorganization, the former employees of the Exchange and Special Services "no longer share a clear and identifiable community of interest separate and distinct from each other and [from] unrepresented employees," and "have been physically and administratively merged under a new command structure in an integrated operation." RD's Decision at 7-8.2/
The RD concluded that "a substantial change in the character and scope of the exclusively recognized units represented by AFGE and IAM has taken place giving rise to a good faith doubt as the appropriateness of each unit." Id. at 8. The RD determined that "as the units are no longer appropriate . . . the units of employees for which AFGE and IAM were certified in 1970 as the exclusive representatives no longer exist and that the Activity is under no obligation to recognize AFGE and IAM as the exclusive representative[s] of the employees involved." Id. The RD further concluded that although "it appears that an Activity-wide unit might be appropriate[,]" she was not ordering an election because "the Unions expressed no interest in representing a unit, other than the unit they represented prior to the reorganization[.]" Id. The RD stated that "[t]herefore, the appropriateness of an [Activity]-wide unit, and which union, if any, would represent such a unit will have to be determined through the filing and processing of an RO petition." Id. Finally, the RD advised the parties that, unless her decision is overturned by the Authority, she will revoke the certifications of AFGE and IAM.
III. IAM's Application for Review
IAM contends that the application for review should be granted because the RD's decision "effectively decertified" IAM as the collective bargaining representative of IAM's unit. Application at 2. IAM asserts that the "decision was made without regard to a finding of an appropriate unit, an election, or the desires of the employees involved" and, therefore, the "decision is completely erroneous and should not be permitted to stand." Id.
IAM states that the Activity filed its petitions in this case under section 2422.1(c) of the Authority's Regulations, seeking not to decertify AFGE or IAM but rather "only to clarify an issue related to which, if any, labor organization should continue to represent its employees." Id. at 4 (emphasis in original). IAM argues that nothing in section 2422.1(c) suggests that under that section the Authority may decertify an exclusive representative.
IAM contends that when, as here, a petition raises a question as to the continued appropriateness of a unit, the Authority is required by section 7112 of the Statute to make a unit determination. IAM acknowledges that the Authority may find that no unit is appropriate, but contends that if any unit is found appropriate, the Authority is required by section 7111 of the Statute to order an election. IAM states that in this case the RD should have decided whether an Activity-wide unit was appropriate, rather than finding that "it appears that an Activity-wide unit might be appropriate." Id. at 6.
IAM notes that the Activity stated that it "would not oppose" an Activity-wide unit. Id. at 8. IAM also notes that the Activity expressed the opinion that an Activity-wide unit is "the only logical unit," and that an election in such unit "would be appropriate." Id. IAM asserts that the RD ignored the desires of the Activity and failed in her responsibility to decide the appropriateness of the unit. IAM contends that the RD also erred in finding that AFGE and IAM expressed no interest in representing a unit other than the units they represented prior to the reorganization. IAM argues that AFGE and IAM should not be obligated to decide whether they are interested in representing a unit different from the ones currently represented until after an election has been ordered. According to IAM, asking AFGE or IAM to state during the hearing whether it was interested in representing an Activity-wide unit "would have the effect of pitting one Union against the other" and would be unfair in view of the fact that "external obligations (AFL-CIO Constitution) dictate a position against raiding another AFL-CIO affiliate[.]" Id. at 9. IAM states that, had the RD found the Activity-wide unit appropriate and ordered that an election be held, AFGE and IAM would each have been free, under section 2422.4(a)(4) of the Authority's Regulations, "to choose its course of action," including whether "to withdraw from the election process and have its name stricken from the ballot." Id.
In conclusion, IAM requests that the Authority either remand the RD's decision to the RD or set the decision aside and order that an election be held.
IV. Analysis and Conclusions
We conclude, in agreement with the RD, that an election in this case is not warranted and that a determination as to the appropriateness of an Activity-wide unit may only be made upon the filing of a petition for certification of representative. We also conclude, in disagreement with the RD, that the certifications of AFGE and IAM should not be revoked, and we will direct the RD not to revoke the certifications.
Section 7111(b)(2) of the Statute provides that a petition may be filed "by any person seeking clarification of, or an amendment to, a certification then in effect or a matter relating to representation[.]" Section 2422.1(c) of the Authority's Regulations provides that:
[a] petition seeking to clarify a matter relating to representation may be filed by an activity or agency where the activity or agency has a good faith doubt, based on objective considerations, that the currently recognized or certified labor organization represents a majority of the employees in the existing unit or that, because of a substantial change in the character and scope of the unit, it has a good faith doubt that such unit is now appropriate.
The Activity in this case filed its RA petitions seeking to clarify a matter relating to the representation by AFGE and IAM of certain of the Activity's employees. The Activity questioned whether AFGE's and IAM's bargaining units continued to be appropriate because the reorganization of the Activity had caused a substantial change in the character and scope of those units.
Where an agency files an RA petition challenging the continued appropriateness of a bargaining unit or units due to a reorganization, the RD must examine the effect of the reorganization in order to determine the continued appropriateness of the unit or units and the rights of the parties. Federal Aviation Administration, Aviation Standards National Field Office, 15 FLRA 60, 63 (1984) (Aviation Standards). Where the character and scope of a bargaining unit have not changed substantially, the RD may properly find that the existing unit remains appropriate. Id. at 64-65. The RD may decide in an RA proceeding, or pursuant to the filing of a clarification of unit petition, that a bargaining unit has become a part of or accreted to another established bargaining unit. See, for example, id. at 67-68; Defense Contract Audit Agency, 6 A/SLMR 251, 252 n.7 (1976). The RD may find, in an RA proceeding, that one or more bargaining units have been combined to form an entirely new unit. See, for example, Department of the Army, 89th Army Reserve Command, Wichita, Kansas, 7 A/SLMR 796, 798-99 (1977) (Department of the Army); Navy Public Works Center, San Francisco Bay, 6 A/SLMR 142, 147 (1976) (Navy Public Works Center). Where the new unit contains all the components of the previously recognized units, or where substantial portions of the former units can be identified within the new unit, and the new unit is appropriate for exclusive recognition, the RD may properly order an election to determine which of the unions, if any, shall represent the new unit. Department of the Army; Navy Public Works Center. Where, however, a substantial portion of the former units cannot be identified within the new unit, the RD may properly decide not to order an election, especially where the new unit also includes employees who have previously been unrepresented. Aviation Standards, 15 FLRA at 67-68; Department of the Army.
In this case, the RD found that, as a result of the reorganization, the units for which AFGE and IAM had been certified are no longer appropriate, and the Activity is under no obligation to continue to recognize AFGE and IAM as the exclusive representatives of employees in those units. The RD also found that it appears that an Activity-wide unit might be appropriate. IAM does not challenge the RD's finding that the former AFGE and IAM units are no longer appropriate, but contends that, having so found, the RD was required to make a conclusive determination as to the appropriateness of the Activity-wide unit and, if the RD concluded that such a unit is appropriate, to order that an election be held. We disagree.
Where, as here, a new unit would include employees previously represented by two different unions, an election would decide which of these unions, if any, would represent any new unit. However, even assuming that a new unit were appropriate for exclusive recognition, it would serve no purpose to direct an election in that unit if neither of the unions representing the previous units claims or seeks to represent a modified unit. In this regard, we note that at the close of the hearing, the Hearing Officer stated that "[e]arly on in the testimony, the [A]gency proposed an [Activity-wide] unit." Transcript at 136. The Hearing Officer then stated that she "would like to ask the [U]nions at this particular time if it is concluded by the Regional Director that an [Activity-wide] unit is appropriate, would you be willing to go to an election based upon that unit?" Id. IAM's representative responded that "we would like to keep the line that exists between the trades and crafts versus the clerical and personnel types that are currently represented by the AFGE. And to the extent that the [A]gency see[k]s a unit that would be defined as both, I'm not interested in that. I'm interested in preserving what we have and would only seek the trades and crafts people." Id. at 137-38. AFGE's representative responded that "we are in agreement" with IAM. Id. at 138. Accordingly, because neither IAM nor AFGE sought a unit different from the units which the Unions had represented, we find that the RD properly declined to make a determination as to what unit would be appropriate and to order an election. In so finding, we reject IAM's argument that AFGE and IAM should not have been required to decide whether they were interested in an Activity-wide unit until after an election was ordered. Before ordering an election, the RD must determine that a union seeks to represent employees in a unit that is appropriate. See section 7111(b) of the Statute.
We find, however, that to revoke the certifications of AFGE and IAM would not be proper. Although the units for which AFGE and IAM were certified are no longer appropriate, the RD did not cite, and we are not aware of, any precedent warranting revocation of certification in circumstances similar to those in this case. Accordingly, we will direct the RD not to revoke the certifications. Any matters relating to the parties' rights and obligations as to the units represented by AFGE and IAM may be resolved as appropriate in other proceedings, including proceedings under the Statute. We note that any matters relating to the deduction of dues are governed by section 7115 of the Statute.
Although we do not direct that an election be held, nothing in this decision precludes AFGE or IAM from seeking, through the filing of a petition for certification of representative (an RO petition), to represent the employees in a unit other than the previously existing units. See, for example, Aviation Standards, 15 FLRA at 68 n.6; Defense Logistics Agency, Defense Contract Administration Services Region, Cleveland, 7 A/SLMR 980, 982 n.3 (1977). Upon the filing of a petition, the RD would make the necessary findings as to the appropriateness of the petitioned-for unit and an election may be held to determine which union, if any, would represent the employees. A showing of interest would be needed to support such a petition. See 5 C.F.R. ° 2421.16.
V. Order
The application for review is granted. We sustain the Regional Director's conclusions that in the circumstances of this case an election was not warranted and that a determination as to the appropriateness of a unit other than the previously existing units may be made only upon the filing of a petition for certification of representative. We direct the Regional Director, however, not to revoke the certifications of AFGE and IAM.
FOOTNOTES:
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have footnotes.)
1/ IAM does not challenge the RD's findings that the units for which AFGE and IAM had been certified as exclusive representatives are no longer appropriate and that the Activity, therefore, is under no obligation to continue to recognize AFGE and IAM as the exclusive representatives for those units. Accordingly, we will not address those findings in this case.
2/ The RD did not make separate findings as to the barbers.