[ v55 p514 ]
55 FLRA No. 89
U.S. DEPARTMENT OF THE NAVY
COMMANDER, NAVAL BASE
NORFOLK, VIRGINIA
(Activity)
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-1, SEIU, AFL-CIO
(Petitioner)
WA-RP-80061
_____
ORDER GRANTING APPLICATION FOR REVIEW
June 25, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This case is before the Authority on the Union's application for review of the Regional Director's (RD's) decision dismissing its petition. [n2] The RD found that the unit proposed by the Union was not appropriate, as defined by section 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute). The Agency filed an opposition to the Union's application.
We grant the Union's application for review, on the ground that reconsideration of Authority precedent is warranted under section 2422.31(c)(2) of the Authority's Regulations. In this regard, we find that Authority precedent does not provide sufficient guidance for assessing the effect on bargaining units of reorganizations that modify the chains of command at managerial levels, but do not affect the day-to-day working conditions of bargaining unit employees. The parties are requested to file supplemental briefs concerning particular issues set out at the end of this decision.
II. Background
The Union was certified in 1985 as the exclusive representative of a consolidated unit of 323 professional and nonprofessional employees of the original Weapons Station Yorktown (WSY). In 1997 and 1998, the Agency underwent reorganizations.
A. Pre-reorganization
The original WSY's mission was to provide logistics, technical and materiel support to the east coast fleet and other customers, to maintain, calibrate and operate an explosive ordnance outloading facility, and to provide homeport services. The original WSY also performed base operation support functions, including a housing operation, for more than 20 tenant activities. The commanding officer of the original WSY reported to the commanding officer of the Naval Ordnance Center Atlantic Division. The original WSY employed 323 bargaining unit employees. The competitive area for reduction-in-force (RIF) for those employees was WSY-wide. It is unclear from the record what the competitive area was for vacancies and promotions. The Yorktown Satellite Office (the Satellite Office Yorktown) of the Human Resources Office at Norfolk, Virginia (Human Resources Office Norfolk) provided personnel services to the employees.
B. Post-reorganization
The original WSY's functions have been split among three separate entities: (1) WSY; (2) the Atlantic Ordnance Command (AOC); and (3) the Housing Department and Regional Resource Services Office of the U.S. Department of the Navy, Commander, Naval Base, Norfolk (COMNAVBASE).
The Agency has conducted simultaneous negotiations with the Union for employees of both WSY and AOC, and has submitted similar, but not identical, proposals to the Union to cover employees of both entities. [ v55 p515 ]
1. WSY
WSY's mission is now limited to base operation support. [n3] The commanding officer of WSY reports to the commanding officer of COMNAVBASE, who, in turn, reports to the Commander-in-Chief of the Atlantic Fleet. [n4] The 84 employees of the original WSY who remained WSY employees after the reorganization have experienced no change in their duties and functions. Their supervisors have remained the same, and their work locations have not changed. In addition to these 84 employees, 16 unrepresented employees now work for WSY.
The competitive area for RIF continues to be limited to WSY employees. Vacancies and promotions at WSY may be limited to WSY or may have wider areas of consideration. The Satellite Office Yorktown continues to provide personnel services to the employees.
2. AOC
The original WSY's maintenance, calibration, and ordnance functions have been transferred to AOC. The commanding officer of AOC, who has full authority to set working conditions and labor relations policies for the AOC employees, reports to the commanding officer of COMNAVBASE (who, as stated above, reports to the Commander-in-Chief of the Atlantic Fleet). AOC employs 239 bargaining unit employees from the original WSY as well as an additional 81 unrepresented employees. The 239 unit employees from the original WSY have experienced no change in their duties and functions, and their supervisors and their work locations remain the same.
The competitive area for RIF is now limited to AOC employees. It is unclear from the record what the competitive area is for vacancies and promotions. The Satellite Office Yorktown continues to provide personnel services to the employees.
3. COMNAVBASE
The original WSY's housing operation is now performed by three employees from the original WSY who are now assigned to the Housing Department of COMNAVBASE; the original WSY's resource management function [n5] is now performed by three employees from the original WSY who are now assigned to the Regional Resources Service Office of COMNAVBASE. The commanding officer of COMNAVBASE reports to the Commander-in-Chief of the Atlantic Fleet. The six original WSY employees have experienced no change in their duties and functions, except that one of the employees now splits his time between Yorktown and COMNAVBASE's Norfolk headquarters. There are 70 other employees assigned to COMNAVBASE's Housing Department, and 60 other employees assigned to COMNAVBASE's Regional Resource Services Office, although those employees work at different locations from the 6 employees originally from WSY who now work for COMNAVBASE.
The competitive area for RIF includes all COMNAVBASE employees. It is unclear from the record what the competitive area is for vacancies and promotions. Human Resources Office Norfolk now provides personnel services to the employees.
III. RD's Decision
The Union filed a petition, asserting that COMNAVBASE is the successor employer with respect to all employees of the original WSY. The Union sought certification of a unit composed of all professional and nonprofessional employees of WSY, AOC, and the six employees who were transferred to COMNAVBASE.
The RD found that the commanding officers of WSY and AOC "command two very distinct Activities, which have very different missions and separate employees." RD's Decision at 16. In this connection, the RD determined that the commanding officers of WSY and AOC have full authority to set working conditions and labor relations policies for WSY and AOC employees, respectively. The RD also found that the employees of WSY, AOC, and COMNAVBASE, [ v55 p516 ] respectively, support three distinct missions, and are in three different competitive areas for RIF. Id. at 17.
Based on the foregoing findings, the RD concluded that the employees do not share a clear and identifiable community of interest in the unit proposed by the Union and, as a result, the proposed unit is not appropriate, within the meaning of section 7112(a) of the Statute. The RD also concluded that recognition of the proposed unit would not promote effective dealings with the Agency. In this connection, the RD found that because the working conditions of the employees are established by three separate commanding officers, and because two different human resource offices provide personnel services to the employees, the proposed unit does not bear a rational relationship to the Agency's operational and organizational structure. Additionally, the RD determined that the proposed unit would not promote the efficiency of agency operations because, as relevant here, the proposed unit includes only 3 of 63 Regional Resources Service Office employees and 3 of 73 Housing Office employees. [n6]
Finally, the RD found that because there was not a single gaining entity, it was not possible to compare the mission of such an entity with the mission of the original entity. Consequently, the RD found it infeasible to apply the second factor that was set forth in the Authority's decision in Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme), [n7] and he concluded that the criteria for determining successorship could not be satisfied here. Accordingly, the RD dismissed the petition. [n8]
IV. Application for Review
According to the Union, all of the employees in the proposed unit have been transferred to the direct command of COMNAVBASE. Additionally, the Union asserts that a majority of the employees in the proposed unit are the same employees who were part of the pre-reorganization unit.
The Union argues that "established law and policy fosters fragmentation of bargaining units when applied to the [Agency's] reorganizations and regionalization[,]" and as such, the Authority should grant its application for review on the basis that established law and policy warrants reconsideration. Application for Review at 16. Additionally, the Union contends that the Authority should grant its application for review because: (1) there is an absence of Authority precedent regarding the standards for bargaining units certified on an "installation" basis under section 7112(a) of the Statute, id. at 14; and (2) the RD's decision is contrary to established law because he ignored the Authority's decision in Naval Submarine Base New London, Naval Submarine School, Naval Submarine Support Facility New London, Personnel Support Activity New London, and Naval Hospital Groton, 46 FLRA 1354 (1993) (New London).
In addition, the Union maintains that its application for review should be granted because the RD committed several clear and prejudicial errors concerning substantial "factual" matters. Application for Review at 17. Specifically, the Union argues that: (1) the RD refused to recognize that the commanding officer of COMNAVBASE is in command of all of the employees; (2) the RD "improperly separated functions as missions" in concluding that AOC, COMNAVBASE, and the new WSY perform three distinct missions; (3) the RD improperly determined that the employees do not share a clear and identifiable community of interest; (4) the RD erred by finding that the one human resources office (Human Resources Office Norfolk) provide personnel services to some employees, while another office [ v55 p517 ] (the Satellite Office Yorktown) provides such services to the other employees; and (5) the RD determined that in the absence of one "gaining entity," the Port Hueneme standard cannot be applied. Id. at 17, 18
V. Opposition
The Agency asserts that the RD's decision is "clear, concise and accurate[,]" and that the Union's arguments "merely constitute disagreement" with the RD's findings. Opposition at 1. The Agency notes that although the Union agrees that the units proposed in the Agency's two petitions are appropriate units, the Union is arguing here that another appropriate unit exists. According to the Agency, the Union is essentially seeking a determination from the Authority that there exists a more appropriate unit. Citing United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 959 n.5 (1997) (FISC), the Agency argues that the Authority has found that nothing in section 7112(a) of the Statute suggests that proposed unit must be the only appropriate unit or the most appropriate unit.
VI. Analysis and Conclusions
The issue presented in this case is whether the reorganization of the original WSY created new entities that are so separate that the employees in the preexisting, installation-wide unit no longer share a community of interest. For the reasons that follow, we conclude that Authority precedent does not provide sufficient guidance to evaluate whether organizational changes that affect the chains of command but do not change the day-to-day working conditions of bargaining unit employees, disrupt the appropriateness of a bargaining unit. In particular, we conclude that the precedent that exists on this issue is sufficiently unexplained to warrant reconsideration under section 2422(c)(2) of our Regulations.
A. General principles concerning whether the employees continue to be in a separate appropriate bargaining unit after a reorganization.
The Authority requires only that the proposed bargaining unit be an appropriate unit, not the only appropriate unit. See Department of the Navy, Naval Supply Center, Puget Sound, Bremerton, Washington, 53 FLRA 173, 183 n.9 (1997). The Agency asserts that, pursuant to that principle, it is unnecessary to evaluate the appropriateness of the unit proposed by the Union because all parties agree with the RD's finding that two separate units (one of remaining WSY employees and one of AOC employees) are appropriate.
The Agency's position ignores the Authority's settled approach for evaluating whether a reorganization renders existing units inappropriate. In this regard, the Authority's case law examining union claims that an existing unit of employees continues to be appropriate after a reorganization focuses on the specific changes made by the agency. In particular, the Authority examines "the effect of the reorganization in order to determine the continued appropriateness of the unit or units and the rights of the parties." Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, North Carolina, 45 FLRA 281, 286 (1992) (Morale Welfare) (emphasis added); see Defense Logistics Agency, Defense Supply Center Columbus, Columbus Ohio, 53 FLRA 1114, 1122-23 (1998) (DLA Columbus). This focus on whether the existing unit remains appropriate reflects the general principle that the Authority is "reluctant to disturb longstanding bargaining units, . . . when bargaining in those units has been successful." DLA Columbus, 53 FLRA at 1124 (quoting Hardin, The Developing Labor Law 455 (3d ed 1992)). Despite the Agency's assertions to the contrary, therefore, it is necessary and proper for the Authority to address whether the existing bargaining unit remains appropriate even though there is no dispute that the two new units proposed by the Agency are appropriate.
A proposed unit is appropriate under section 7112(a) of the Statute if: (1) the employees at issue share a clear and identifiable community of interest; (2) the unit promotes effective dealings with the agency involved; and (3) the unit promotes efficiency of operations of the agency involved. See FISC, 52 FLRA at 959. Determinations as to each criterion are made on a case-by-case basis by balancing the relevant factors. Id. at 960. The Authority has set out a variety of relevant factors for these inquiries, but has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. See American Federation of Government Employees, Local 2004, 47 FLRA 969, 972 (1993).
The requirement that employees share a community of interest is intended to "ensure that it is possible for [employees] to deal collectively [with management] as a single group." FISC, 52 FLRA at 960 (citations [ v55 p518 ] omitted). In order to determine whether employees share a clear and identifiable community of interest, the Authority examines such factors as whether the employees in the unit are a part of 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 and labor relations policies that are administered by the same personnel office. Additional factors include: geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation. See FISC, 52 FLRA at 960-61 and cases cited therein.
B. Authority precedent warrants reconsideration because it does not provide sufficient guidance as to how reorganizations in employees' immediate chains of command affect unit appropriateness.
Although the RD found that the employees are all in the immediate chain of command of the commanding officer of COMNAVBASE, the RD found that the employees no longer shared a community of interest after the reorganizations because they worked for "separate entities," with separate missions, separate authority over working conditions and labor relations, and separate RIF procedures. RD's Decision at 16-17. The RD relied on two prior cases, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 46 FLRA 502 (1992) (Defense Mapping Agency), and United States Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 11 FLRA 591 (1983) (Naval Avionics Center). In both of those cases, the fact that the reorganizations caused changes in the employees' immediate chains of command was relied on to find that the proposed units were not appropriate.
The Union asserts that each of the separate entities found by the RD is under the "direct command and control" of the commander of COMNAVBASE, Application for Review at 11, and that, as such, the commander of COMNAVBASE is an appropriate Agency representative for bargaining purposes. The Union relies on New London, 46 FLRA 1354. The Union further asserts that, historically, bargaining units within the Department of Defense have been certified on a geographic, or installation, basis. According to the Petitioner, reorganizations along "functional" lines, such as occurred in this case, have the effect, under existing Authority precedent, of fragmenting these existing geographic bargaining units in a manner that is inconsistent with the statutory scheme.
The precedent relied on by RD, on the one hand, and the Union, on the other, reveals that, with respect to determining community of interest, the relationship between employees' assignments to separate "organizational components" and their placement in the same immediate "chain of command" is unclear. The cases relied on by the RD -- Defense Mapping Agency and Naval Avionics Center -- provide support for concluding that the employees no longer share a community of interest because they are in different organizational components after the reorganization. The case relied on by the Union provides support for concluding that this one factor is not sufficient to destroy the employees' community of interest as long as they remain in the same immediate chain of command with one another. New London, 46 FLRA 1354. Accord USA Darcom Materiel Readiness Support Activity (MRSA), Lexington, Kentucky, 1 FLRA 430 (1979) (USA Darcom).
We note, in this regard, that placement in the same immediate chain of command would appear likely to ensure that employees could "deal collectively" with management as a single group, thereby establishing a community of interest. FISC, 52 FLRA at 960. In this case, where all the employees are in the same immediate chain of command of the commanding officer of COMNAVBASE, there is no indication that the reorganizations have led to increased difficulty in the parties' bargaining relationship. See RD's Decision at 10 ("Subsequent to the 1997 reorganization, the [Agency] has negotiated with [the Union] with respect to conditions of employment of employees of [WSY] and [AOC]. The [Agency] has submitted similar, but not identical, proposals, to [the Union] to cover employees of both [ v55 p519 ] entities and has attempted to conduct simultaneous negotiations with [the Union] for both Activities."); see also id. at 17-18 ("The [Agency] has negotiated with [the Union] regarding [WSY] and [AOC] employees in related negotiations.").
We also note that, as a general matter, the Statute, and Authority precedent, disfavors the fragmentation of bargaining units. See USA Darcom, 1 FLRA at 432-33 (finding newly created separate entity within installation-wide unit remained in bargaining unit based, in part, on desire to avoid fragmentation). In addition, the Statute requires that bargaining units promote the efficiency of agency operations and the Authority has stated that this criterion concerns "the benefits to be derived from a unit structure which bears some rational relationship to the operational and organizational structure of the agency." FISC, 52 FLRA at 961 (citations omitted). Applying the Authority precedent cited by the RD in the instant case would result in fragmentation of the bargaining unit. However, applying the Authority precedent cited by the Union would not result in fragmentation.
Existing Authority precedent does not provide sufficient guidance on how to determine, in this situation, whether the bargaining unit remains appropriate. Accordingly, we grant review under section 2422(c)(2) of our Regulations to reconsider our precedent. We will determine whether the organizational changes affecting the lines of command, but not otherwise altering the working conditions of bargaining unit employees, have impaired the continued appropriateness of the bargaining unit. [n9]
We request that the parties address the following question:
How should the Authority assess the effect on bargaining units of reorganizations that modify portions of the chains of command at managerial levels, but do not affect the day-to-day working conditions of bargaining unit employees?
In accordance with section 2422.31(g) of the Authority's Regulations, the parties are directed to file briefs on the issue set forth. [n10] Briefs will be considered if received by mail or personal delivery in the Authority's Case Control Office by 5 p.m. on Monday, July 26, 1999. Placing submissions in the mail by this deadline will not be sufficient. Extensions of time to submit briefs will not be granted. Briefs should be directed to:
Peter J. Constantine
Director, Case Control Office
Federal Labor Relations Authority
607 14th Street, N.W., 4th Floor
Washington, D.C. 20424-0001
File 1: Authority's Decision in 55 FLRA No.
89
File 2: Opinion of Member Cabaniss
Footnote # 1 for 55 FLRA No. 89 - Authority's Decision
Member Cabaniss' dissenting opinion is set forth at the end of this decision.
Footnote # 2 for 55 FLRA No. 89 - Authority's Decision
Section 2422.31 of the Authority's Regulations provides, in pertinent part, the following: (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 55 FLRA No. 89 - Authority's Decision
Although the original WSY's base operation support functions included a housing operation, the housing operation has since been transferred to the Housing Department of COMNAVBASE, as discussed below.
Footnote # 4 for 55 FLRA No. 89 - Authority's Decision
The commanding officer of COMNAVBASE is now titled the Commander Mid-Atlantic Region. However, for the sake of consistency with the RD, we will refer to this individual as the commanding officer of COMNAVBASE.
Footnote # 5 for 55 FLRA No. 89 - Authority's Decision
In his description of the original WSY's mission, the RD did not list performance of a resource management function. It is not clear whether the original WSY performed a resource management function pursuant to its provision of homeport services, or pursuant to some other part of its mission.
Footnote # 6 for 55 FLRA No. 89 - Authority's Decision
The record does not indicate the total number of COMNAVBASE employees.
Footnote # 7 for 55 FLRA No. 89 - Authority's Decision
The Authority applies the criteria set forth in Port Hueneme in order to determine whether a gaining entity is a successor, and whether a union retains its status as the exclusive representative of employees who are transferred to the successor. The Authority will find successorship when:(1) [a]n entire recognized unit, or a portion thereof, is transferred and the transferred employees: (a) are in an appropriate bargaining unit, under section 7112(a), after the transfer; and (b) constitute a majority of the employees in such unit;(2) [t]he 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 in the gaining entity; and(3) [i]t has not been determined that an election is necessary to determine representation.Port Hueneme, 50 FLRA at 368.
Footnote # 8 for 55 FLRA No. 89 - Authority's Decision
In the same decision, the RD granted two petitions filed by the Agency, finding that the employees who remain at WSY continue to constitute an appropriate unit, and that the employees of AOC also constitute an appropriate unit. Neither party has filed an application for review of the RD's decision with regard to those two petitions.
Footnote # 9 for 55 FLRA No. 89 - Authority's Decision
The Union also requests that we grant its application for review under 5 C.F.R. § 2422.31(c)(1) because the RD's decision raises an issue for which there is an absence of Authority precedent and under section 2422.31(c)(3)(i) because the RD failed to apply established law. We reject the application for review on these grounds. We recognize that there are two lines of cases applicable to the facts of this case, and the RD followed one of those lines. We further find that the Union has not demonstrated, pursuant to 5 C.F.R. § 2422.31(c)(3)(iii), that the RD's decision on certain factual issues is clearly erroneous or prejudicially affected the rights of any party under section 2422.17(c)(4) of our Regulations. Accordingly, we deny the application for review with regard to those matters, also.
Footnote # 10 for 55 FLRA No. 89 - Authority's Decision
The Authority believes that this issue is likely to be of concern to the federal sector labor-management relations community in general. Accordingly, on or about July 1, 1999, the Authority will publish a Federal Register Notice inviting interested persons to address the issue. Copies of the Notice may be obtained from the Authority's Case Control Office upon publication.