United States Department of Commerce, National Weather Service, Silver Spring, Maryland (Agency) and United States Department of Commerce, National Weather Service, National Logistics Support Center, Kansas City, Missouri (Activity) and American Federation of Government Employees, AFL-CIO (Petitioner) and National Weather Service, Employees Organization (Intervenor)

[ v62 p472 ]

62 FLRA No. 86

UNITED STATES
DEPARTMENT OF COMMERCE
NATIONAL WEATHER SERVICE
SILVER SPRING, MARYLAND
(Agency)
AND
UNITED STATES
DEPARTMENT OF COMMERCE
NATIONAL WEATHER SERVICE
NATIONAL LOGISTICS SUPPORT CENTER
KANSAS CITY, MISSOURI
(Activity)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
(Petitioner)
AND
NATIONAL WEATHER SERVICE
EMPLOYEES ORGANIZATION
(Intervenor)

DE-RP-07-0014

_____

ORDER DENYING
APPLICATION FOR REVIEW

June 10, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on an application for review filed by the American Federation of Government Employees, AFL-CIO (Petitioner) under 5 C.F.R. § 2422.31. [n1]  The Regional Director (RD) found that because of an Agency realignment, the bargaining unit represented by the Petitioner at the National Logistics Supply Center (NLSC) no longer continues to be appropriate. Instead, the RD concluded that the employees from that unit have accreted into a nationwide unit represented by the National Weather Service Employees Organization (NWSEO).

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

II.     Background and RD's Decision

      On November 22, 2000, the Petitioner was certified as the exclusive representative for bargaining unit employees of the NLSC, an organization that warehouses and distributes parts for equipment used by a number of agencies including the National Weather Service (NWS). On January 7, 2007, employees of the NLSC, including the 21 bargaining unit employees represented by the Petitioner, were realigned from the National Oceanic and Atmospheric Administration (NOAA), Office of the Chief Administrative Officer, to the NWS, an agency that reports to NOAA.

      On January 16, 2007, after the realignment, the Petitioner filed with the Authority a petition seeking a determination that the United States Department of Commerce, NWS, NLSC, Kansas City, Missouri, is the successor employer of the realigned employees and argued that the Petitioner continues to represent NLSC bargaining unit employees in an appropriate unit separate from the national bargaining unit of NWS employees represented by the NWSEO.

      Addressing the petition, the RD found that the realignment was implemented to "align the NLSC with its largest customer [the NWS], to simplify the chain of command and to consolidate all supply chain . . . functions, and to simplify administrative and budget/finance processes through the consolidation." RD Decision at 6. The RD further found that before the realignment, the NLSC served in a unique role as the sole warehousing and logistical distribution center for the NWS, and that it continued to do so after the realignment. [n2]  Additionally, the RD found that the location of the NLSC and the [ v62 p473 ] duties of bargaining unit positions within the NLSC remained unchanged after the realignment.

      The RD also found that the realignment resulted in a number of significant changes. First, the RD determined that by aligning the NLSC with the NWS, the work performed by the NLSC "is now performed in the larger context of the mission of the NWS" in that, if the NLSC fails to supply critical parts to the NWS, then the vital mission of the NWS to issue weather forecasts and storm warnings would not be possible. In this respect, the RD also found that in aligning the mission between the NLSC and the NWS, the chain of command for the NLSC changed as it was now placed under the NWS, not directly under NOAA. Specifically, the NLSC became a subunit of the NWS Maintenance, Logistics and Acquisition Division, one of four organizations at the NWS headquarters level. Accordingly, while employees of the NLSC still report either directly or indirectly as they did prior to the realignment to the NLSC manager (manager), the chain of command above this level changed because of the realignment.

      In addition, the RD found that the realignment impacted the manager's performance of certain duties. In this regard, prior to the realignment, the manager: (1) was responsible for making hiring decisions at the NLSC; (2) could similarly promote employees or serve as the proposing official in disciplinary matters; and (3) for a number of years administered the NLSC's labor-management policy and met with the Petitioner's representatives to resolve issues as needed. The RD found that after the realignment, the manager could still serve as the proposing official for disciplinary matters. The RD determined, however, that although the manager also could serve as the selecting official for filing vacancies at the NLSC, the manager now needed to get approval from both the NWS's Director of Maintenance, Logistics and Acquisitions, and also from the NWS's Director of the Office of Operational Systems. The RD also found this true with respect to competitive merit promotions.

      Moreover, the RD found that while the manager is still involved in administering the labor-management policies at the local level -- and the RD noted the manager's testimony that he still has authority to bargain at the local level as long as such bargaining does not concern the resolution of national issues -- the manager now must report through a NWS line of authority for resolving labor issues. In this respect, the RD found that labor policy is now formulated by the Management and Organization Division (MOD) of NWS headquarters, rather than NOAA's Central Administrative Support Center (CASC), and that the manager contacts the MOD as his primary source of advice and guidance for dealing with labor issues.

      The RD found further that prior to the realignment, the CASC provided personnel support, such as recruitment, classification, staffing, employee relations and benefits administration for the NLSC until 2005, and that the Client Services Division within NOAA provided these services until the time of the realignment. By contrast, the RD found that subsequent to the realignment, the Norfolk Virginia office of NOAA's Workforce Management Office, Client Services Division, NWS branch, provides NLSC with personnel support. Additionally, the RD determined that personnel policy, such as alternative work schedules for the NLSC, is now set by the NWS, not NOAA's office of the Chief Administrator.

      Additionally, the RD determined that prior to the realignment, the NLSC shared a competitive area for a reduction in force (RIF) with other organizations supported by the CASC in Kansas City, and that approval of RIF actions had been routed through NOAA's Office of the Chief Administrative Officer. However, the RD found that after the realignment, NLSC employees now share a competitive RIF area with NWS employees working for the National Reconditioning Center (NRC), Aviation Weather Center and the National Weather Service Training Center, all located in Kansas City. Moreover, the RD determined that any RIF action would now be channeled through the NWS up to the Department of Commerce, rather than through the Office of the Chief Administrator.

      Moreover, the RD found that because of the realignment, the NLSC and a co-located organization, the NRC, now both fall under the NWS's Maintenance, Logistics and Acquisition Division. The RD determined that the NRC's work originates from the NLSC and that the two organizations share the "same parking lot, and have access to the same credit union, cafeteria, gym, barber shop, outside smoking areas, and a nurse's station" and that while they currently have separate break rooms, the organizations routinely invite the other to participate in "fundraisers or celebrations such as `deer feast.'" RD Decision at 9. Finally, the RD found that while the NLSC has a unique warehousing role by utilizing Materials Handlers, a position found exclusively in the NLSC, the NRC and NLSC otherwise share similar employee positions and must coordinate efforts to facilitate their work.

      In determining whether the NWS, NLSC, Kansas City, Missouri, is the successor employer of the realigned unit employees in the NLSC, the RD set forth [ v62 p474 ] the framework established by the Authority in United States Dep't of the Navy, Fleet and Industrial Supply Ctr., Norfolk, Va., 52 FLRA 950 (1997) (FISC). [n3]  Consistent with this framework, the RD initially assessed whether the realigned employees represented by the Petitioner continued to constitute an appropriate unit, separate from an existing nationwide unit, under § 7112(a) of the Federal Service Labor-Management Relations Statute (Statute). [n4] 

      In making his appropriate unit determination, the RD assessed whether the employees in the existing unit continue to have a separate community of interest. The RD noted that the NLSC, while a unique organization within the NWS, nonetheless shares in the same overall mission of the NWS by providing support functions that enable the Agency to perform its mission. The RD also found that while the NLSC provides a unique service to the NWS, the record did not indicate that the NLSC has distinct local concerns. Moreover, the RD found that the NLSC is co-located with the NRC, and that although the NLSC and the NRC are "one-of-a kind" organizations, all of the "one-of-a-kind" organizations in the NWS share a community of interest with each other on a national level. The RD determined that given the level of integration between the NRC and NLSC, the record supported finding that the NLSC also shares in this community of interest.

      The RD also determined that the realigned employees no longer share a community of interest separate from the rest of the NWS employees. In this regard, the RD found that NLSC employees now fall under a NWS chain of command. In this respect, the RD noted that decisions regarding hiring, discipline and RIFs are now routed through NWS managers, as opposed to NOAA's Office of the Chief Administrator. Moreover, labor-management policy and personnel policy, such as alternative work schedules for the NLSC, is now set by the NWS, not NOAA's Office of the Chief Administrator. Moreover, the RD found that the competitive area for RIFs for NLSC employees now includes NRC employees along with other NWS employees in the Kansas City area. Additionally, the RD found that all other NWS represented organizations have successfully negotiated with management as a single group at the national level, and as such, that these organizations along with the NLSC can function as a single group. The RD concluded that "given the NLSC's functional and administrative integration with other NWS employees, their shared chain of command, their common mission in support of NWS goals, their shared personnel policies and similar working conditions, their regular work-related interaction, and the absence of distinct local concerns, NLSC shares a community of interest with all NWS employees." RD Decision at 15.

      The RD next addressed whether continuing to recognize a separate unit of realigned employees would promote effective dealings with the Agency. In this connection, the RD found that "creation of a separate unit [of just NLSC bargaining unit employees] would disregard the efficient use of resources to be derived from their inclusion in one unit with all other NWS employees, whose personnel and labor relations policies flow from a centralized location." Id. The RD also found that such a separate unit of NLSC employees would needlessly fragment a group of employees "whose functions, chain of command, and working conditions clearly demonstrate a shared community of interest" and that negotiation and administration of a separate contract with respect to a NLSC unit "would require an unwarranted additional expenditure of time and money." Id. The RD also determined that the past collective bargaining history between the NWS and many other "one-of-a-kind" organizations "demonstrates the Agency's ability to accomplish personnel and labor-relations servicing of a unit that includes the NLSC within existing organizational lines, and under locations and levels of authority that exist in this regard." Id. at 3, 15. The RD noted that there was no evidence to support finding that NLSC employees needed a separate unit in order to effectively deal with the NWS. Accordingly, the RD found that "a separate unit of NLSC employees would not promote effective dealings as contemplated by the Authority." Id. at 15.

      Finally, the RD then assessed whether the unit would promote efficiency of agency operations. In this regard, the RD found that creation of a separate unit of NLSC bargaining unit employees would adversely impact the efficiency of agency operations because it would create undue fragmentation. In this connection, the RD again noted that such a unit would require an "unwarranted expenditure of time and money in additional negotiations that would result[.]" Id. Accordingly, the RD found that the petitioned-for unit of NLSC [ v62 p475 ] employees would not promote efficiency of agency operations.

      For these reasons, the RD determined that the petitioned-for unit is not an appropriate unit under § 7112(a) of the Statute. As a determination that a proposed unit is appropriate is a prerequisite to finding a successorship, the RD concluded that the proposed unit did not satisfy the standards for successorship as set forth in Naval Facilities Engineering Service Ctr., Port Hueneme, Cal., 50 FLRA 363 (1995) (Port Hueneme). Accordingly, the RD denied the Petitioner's petition, and concluded that the unit employees represented by the Petitioner had accreted into the nationwide unit represented by NWSEO.

III.      Positions of the Parties

A.      Petitioner

      The Petitioner requests review on the ground that the RD failed to apply established law in finding that a separate unit of NLSC bargaining unit employees would no longer be appropriate. See Application for Review at 2-3, 4 (citing Port Hueneme, 50 FLRA 363). Specifically, the Petitioner argues that the RD should have considered "[its] claims of successorship before considering [the] claim of accretion[.]" Id. at 2. Additionally, the Petitioner argues that "the NLSC unit was previously certified as an appropriate unit, and simply changing the placing of the center to put it under the Weather Service does not support a claim that the [NLSC] employees are not an appropriate unit." Id. at 3.

      The Petitioner also argues that the RD committed prejudicial procedural error because he failed to properly weigh evidence in rendering his appropriate unit determination. Specifically, it argues that the RD: (1) failed to properly weigh the established bargaining relationship and history between the Petitioner and the NLSC; (2) failed to properly weigh the differences between the AFGE contract and the NWSEO contract; (3) improperly found the fact that NLSC and NRC employees have always shared a "social connection" weighed against finding a separate unit of NLSC employees appropriate; and (4) failed to consider that employees of the NLSC choose to be represented by the Petitioner in part because of the "economic benefits" of their membership. Id. at 2, 3.

B.      Intervenor

      The Intervenor argues that the RD properly applied FISC in determining that employees in the NLSC no longer constitute a separate appropriate unit. Specifically, the Intervenor argues that the record supports finding that the NLSC is no longer an appropriate unit because the NLSC employees do not share a separate community of interest. Additionally, the Intervenor argues that the RD correctly found that a separate unit of NLSC employees will neither promote effective dealings with the NWS, nor promote the efficiency of NWS Operations. Specifically, the Intervenor argues that granting the Petitioner's petition for a separate unit would lead to "artificial fragmentation" because the national unit consists of 3,700 bargaining unit employees and a separate unit would consist of only 21. Opposition at 19 (citing Dep't of Health and Human Services, NIH, Nat'l Institutes of Envtl. Health Sciences, Research Triangle Park, N.C., 62 FLRA 84, 85 (2007) (NIH)). Moreover, the Intervenor argues that allowing a separate unit would lead to an "inevitable impasse that [would] . . . disrupt agency operations[,]" where the Intervenor would be required to negotiate between the two unions. Id. at 20.

IV.     Discussion

A.      The RD did not fail to apply established law

      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 continue to constitute a separate appropriate bargaining unit. Id. at 368; United States Dep't of the Army, Military Traffic Mgmt. Command, Alexandria, Va., 60 FLRA 390, 394 (2004) (Military Traffic Mgmt.) (bargaining unit employees' community of interest in originally certified unit was no longer appropriate after a reorganization as those employees now shared a community of interest with a larger group of employees). As noted previously, to determine appropriateness under § 7112(a), 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 operation of the agency. 5 U.S.C. § 7112(a). See Military Traffic Mgmt, 60 FLRA at 394. A proposed unit must meet all three criteria to be found appropriate. Dep't of the Interior, Nat'l Park Serv., Lake Mead Nat'l Recreation Area, Boulder City, Nev., 57 FLRA 582, 584 (2001) (Lake Mead). In this regard, the Authority makes appropriate unit determinations on a case-by-case basis. FISC, 52 FLRA at 960. Although the Authority has set out factors for assessing each criterion, it has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. See United States Dep't of the Air Force, Lackland Air Force Base, San Antonio, Tex., 59 FLRA 739, 741 (2004).

      [ v62 p476 ] With regard to the first appropriate unit criterion -- whether employees share a clear and identifiable community of interest -- the Authority examines such factors as whether the employees in the proposed 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. See FISC, 52 FLRA at 960-61 (citations omitted). In addition, factors such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation may be relevant. See id. at 961.

      Here, the RD determined that unit employees in NLSC no longer have a separate community of interest from other NWS employees given the "NLSC's functional and administrative integration with other NWS employees, their shared chain of command, their common mission in support of NWS goals, their shared personnel policies and similar working conditions, their regular work-related interaction, and the absence of distinct local concerns." RD Decision at 15. As the RD found that a separate unit of NLSC employees was not appropriate, the RD was not required under Authority precedent to further examine the Petitioner's claim of successorship prior to considering the Intervenor's claim of accretion. See Port Hueneme, 50 FLRA at 368 (stating "a union retains its status as the exclusive representative of employees who are transferred to the successor," where those employees remain in "an appropriate bargaining unit." )

      Additionally, the Petitioner argues that the RD erred in his application of the law because "[t]he NLSC unit was previously certified as an appropriate unit, and simply changing the placing of the center to put it under the Weather Service does not support a claim that the [NLSC] employees are not an appropriate unit." Application at 3. However, the Petitioner does not dispute that the RD found that the realignment changed more than the placement of the NLSC on an organizational chart. In this respect, the RD specifically found that the realignment changed the NLSC's chain of command, integrated its mission with that of the NWS, changed how it administered personnel and labor-management policies and changed the competitive area for RIFs. Additionally, the RD determined that the realignment served to organizationally integrate the NLSC with the NRC, and that all of the bargaining unit employees in the NRC shared a community of interest. These findings are sufficient to support the RD's determination that the NLSC no longer has a separate community of interest, and we find that the Petitioner has not demonstrated that the RD failed to apply established law. [n5]  See NIH, 62 FLRA at 84, 87; FISC, 52 FLRA at 960-61.

B.      The RD did not commit a clear and prejudicial error concerning a substantial factual matter [n6] 

      Under § 2422.31(c)(3)(iii) of the Authority's Regulations, the Authority may grant an application for review when the application demonstrates that there is a genuine issue over whether the RD has committed a clear and prejudicial error concerning a substantial factual matter. In this case, the Petitioner alleges that the RD erred by: (1) failing to properly weigh the established bargaining relationship and history between the Petitioner and the NLSC; (2) failing to properly weigh the differences between the AFGE contract and the NWSEO contract; (3) finding the fact that NLSC and NRC employees have always shared a "social connection" weighed against finding a separate unit of NLSC employees appropriate; and (4) failing to consider that employees of the NLSC chose to be represented by the Petitioner in part because of the "economic benefits" of their membership. Application at 2, 3.

      In effect, the Petitioner disputes the weight that the RD accorded certain evidence in reaching his decision. However, the RD's determination that a separate unit of NLSC employees would no longer be appropriate is supported by numerous factual findings discussed above. Accordingly, even if the RD could have given more weight to the evidence relied on by the Petitioner, [ v62 p477 ] that would not have compelled the RD to find that a separate unit would continue to be appropriate. Thus, the Petitioner has not demonstrated that the RD committed a clear and prejudicial factual error concerning a substantial factual matter. See United States Dep't of the Air Force, Edwards Air Force Base, Cal., 62 FLRA 159, 163 (2007). Moreover, with regard to the Petitioner's claim that the RD failed to consider the economic benefits of NLSC employees being affiliated with the Petitioner, the Petitioner does not explain how this is pertinent to the Authority's test for determining unit appropriateness, and as such, the Petitioner fails to show that it was prejudiced by the RD's decision not to consider this assertion. See FISC, 52 FLRA 960-61.

      For the foregoing reasons, we find that the Petitioner has not demonstrated that the RD committed clear and prejudicial error concerning a substantial factual matter.

V.      Order

      The application for review is denied.



Footnote # 1 for 62 FLRA No. 86 - Authority's Decision

   5 C.F.R. § 2422.31 provides, in relevant part, as follows:

(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 # 2 for 62 FLRA No. 86 - Authority's Decision

   The RD also noted that bargaining unit employees throughout the NWS, including other "one-of-a-kind" organizations within the NWS, were already organized and represented at the national level by NWSEO. RD Decision at 3.


Footnote # 3 for 62 FLRA No. 86 - Authority's Decision

   Under FISC, the Authority stated that we will first determine "whether employees who have been transferred are included in, and constitute a majority of, a separate appropriate unit(s) in the gaining organization under section 7112(a). The outcome of this inquiry will govern whether successorship or accretion principles should next be applied." 52 FLRA at 958.


Footnote # 4 for 62 FLRA No. 86 - Authority's Decision

   5 U.S.C. § 7112(a) provides, in pertinent part, that in order for a unit to be considered appropriate the unit must "ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved."


Footnote # 5 for 62 FLRA No. 86 - Authority's Decision

   As noted above, a proposed unit must meet all three criteria to be found appropriate. See Lake Mead, 57 FLRA at 584. Accordingly, it is unnecessary to address whether the RD correctly found that the proposed unit would not promote effective dealings or efficiency of Agency operations.


Footnote # 6 for 62 FLRA No. 86 - Authority's Decision

   We note that the Petitioner argues that the RD committed "prejudicial procedural error" or "clear and prejudicial error" in rendering his decision. Application at 4, 2. However, the Petitioner's arguments essentially challenge the RD's factual findings, not any procedural issues. Accordingly, we find that the arguments are more appropriately construed as arguing that the RD committed a clear and prejudicial error concerning a substantial factual matter. See, e.g., Nat'l Credit Union Admin., 61 FLRA 349, 351 (2005) (where agency argued that "established law warrants reconsideration," the Authority, based upon the substance of the agency's arguments, construed the assertion as a claim that the RD failed to apply established law); see also, AFGE, Local 3529, 57 FLRA 633, 635 (2001) (where agency argued that there was a "clear and prejudicial error concerning substantial factual matters," the Authority, based upon the substance of the argument, construed the argument as a claim that the RD failed