[ v62 p497 ]
62 FLRA No. 91
UNITED STATES
DEPARTMENT OF THE NAVY
FLEET AND INDUSTRIAL SUPPLY
CENTER NORFOLK
NORFOLK, VIRGINIA
(Activity)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2326
(Incumbent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2906
(Incumbent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1923
(Incumbent)
and
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R1-100
(Incumbent)
and
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R1-77
(Incumbent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1603
(Incumbent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2024
(Incumbent)
and
[ v62
p498 ] INTERNATIONAL FEDERATION
OF PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 4
(Incumbent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1659
(Incumbent)
and
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R2-84
(Incumbent)
and
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R3-15
(Incumbent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1156
(Incumbent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 190
(Incumbent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2172
(Incumbent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO
(Incumbent)
and
INTERNATIONAL FEDERATION
OF PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 3
(Incumbent)
and
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R1-134
(Incumbent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 53
(Incumbent)
AT-RP-07-0024
_____
ORDER DENYING
APPLICATIONS FOR REVIEW
June 26, 2008
______
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This case is before the Authority on applications for review filed by the National Association of Government Employees (NAGE) on behalf of itself and affected locals and by the International Federation of Professional and Technical Engineers (IFPTE) on behalf of affected locals under § 2422.31 of the Authority's Regulations. The United States Department of the Navy, Fleet and Industrial Supply Center Norfolk, Norfolk, Virginia (the Activity or FISCN) filed an opposition to the applications.
The Regional Director (RD) found, based upon an investigation, that certain General Schedule (GS) employees who were transferred from Naval facilities to FISCN have accreted into the bargaining unit currently represented by American Federation of Government Employees (AFGE), Local 53.
For the reasons set forth below, we deny the applications for review. [ v62 p499 ]
II. Background and RD's Decision
The FISCN is one of seven supply center organizations within the Naval Supply Systems Command (NAVSUP). The NAVSUP provides the "Navy, Marine Corps, Joint and Allied Forces with products and services that deliver [c]ombat [c]apability through [l]ogistics." RD Decision at 7. AFGE, Local 53 represents 626 employees at FISCN in its headquarters office as well as in sites throughout the northeastern United States. Id. at 11.
In June 2003 and June 2004, the Department of the Navy (the Navy) realigned all of its supply chain management services to become part of NAVSUP. As relevant here, the Navy administratively transferred to FISCN 265 GS employees who performed the supply functions at approximately 18 Naval facilities. At all times pertinent to the petition, the transferred employees were in bargaining units represented by various labor organizations other than AFGE, Local 53. Many of the job titles of these transferred positions, such as contract specialist, supply technician and logistics management specialist, were common for each losing facility. The transferred employees continue to perform the same duties as they did prior to their transfer. In addition, the mission and function of each supply chain management service that was transferred to FISCN has not changed, and each of these missions and functions are compatible with FISCN's overall mission. The transferred employees do not have frequent interaction with other FISCN employees, as they are located in different geographic locations.
However, the transferred employees are now under the command and control of FISCN and are subject to FISCN personnel and labor relations policies. In this connection, the transferred employees and those represented by AFGE, Local 53 are subject to the same personnel and labor relations policies, share the same mission, perform the same or similar duties, occupy many of the same positions, and are part of the same organization with the same reporting structure.
The FISCN filed a petition seeking to clarify the unit status of the 265 transferred employees, claiming that they had accreted into the unit represented by AFGE, Local 53. The affected, incumbent labor organizations (other than AFGE, Local 53) sought to continue the status quo, specifically to represent employees in smaller, separate, geographically based units based on application of the successorship doctrine.
After conducting several telephone conferences with the parties, the RD notified the parties that a hearing was not necessary. Based upon an investigation, the RD issued her Decision and Order, in which she noted that no party other than the FISCN had submitted evidence or a formal position, despite the fact that she had provided all of the parties an opportunity to do so. Specifically, the RD stated: "No party has proffered written evidence to support finding the transferred employees constitute separate appropriate units nor does the investigation establish that separate units based on geographical location are appropriate in this instance." Id. at 26.
The RD set forth the analytical framework for assessing competing claims of successorship and accretion set forth by the Authority in United States Dep't of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328, 331-32 (2000) (COMNAVBASE) and United States Dep't of the Navy, Fleet and Industrial Supply Center, Norfolk, Va., 52 FLRA 950, 954 (1997) (FISC).
As an initial matter, applying the successorship principles set forth in FISC and Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363, 368 (1995) (Port Hueneme), the RD assessed whether the units represented by the incumbent labor organizations continued to be appropriate under the criteria set forth in § 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute). [n1] The RD determined that the employees who transferred to FISCN do not enjoy a clear and identifiable community of interest that is distinct from the employees in the unit represented by AFGE, Local 53. In this regard, the RD found that all of the employees are a part of the same organizational component of FISCN, support the same mission, and are subject to the same chain of command and general working conditions. The RD also determined that recognitions of separate units of employees would not promote effective dealings and efficiency of Activity operations. As relevant here, the RD found that the locus and scope of authority of the responsible personnel office administering personnel policies that cover employees in those units was within FISCN and not at the respective geographic locations. In addition, the RD determined that separating the employees into smaller units that would coexist with a larger unit consisting of many geographical sites would result in unwarranted fragmentation. While acknowledging that "the Statute requires only that a proposed [ v62 p500 ] unit be an appropriate unit, not the most, or the only, appropriate unit[,]" the RD concluded that the transferred employees are not included in, and do not constitute, separate appropriate units under § 7112(a) of the Statute. RD Decision at 26.
Then, the RD applied the accretion principles set forth in FISC. In this connection, she determined that the transferred employees share a clear and identifiable community of interest with the employees represented by AFGE, Local 53, and that the transferred employees have been so organizationally and operationally integrated with those employees that they have lost their separate identity. The RD also determined that the AFGE, Local 53 unit is co-extensive with the Agency's organizational structure and exists at the level at which personnel and labor relations policies are established. Accordingly, she found that accreting the numerous units of transferred employees into the AFGE, Local 53 unit would promote effective dealings and enhance the efficiency of the Agency's operations. Consequently, the RD concluded that including the transferred employees in the unit represented by AFGE, Local 53 would result in an appropriate unit under § 7112(a) of the Statute.
Further, the RD found that AFGE, Local 53 represents 620 employees, while all of the other incumbent labor organizations represent 265 employees combined. Applying Department of the Army, U.S. Army Aviation Missile Command (AMCOM), Redstone Arsenal, Ala., 56 FLRA 126 (2000) (Redstone Arsenal), the RD found that AFGE, Local 53 represents slightly more than 70 percent of the new bargaining unit and, thus, that an election was unnecessary. [n2] Accordingly, the RD found that the transferred employees had accreted into the unit represented by AFGE, Local 53.
III. Positions of the Parties
1. NAGE
NAGE contends that the RD committed prejudicial procedural error and failed to apply established law by granting the Activity's petition to accrete the transferred employees without holding a hearing and directing an election. NAGE argues that the RD's failure to hold a hearing precluded NAGE from providing evidence on the appropriateness of separate units of employees, and states that it was entitled to a hearing. For support NAGE cites 5 U.S.C. § 7111(b) and 5 C.F.R. §§ 2422.18, 2422.30, and 2422.16(c). [n3]
In addition, NAGE contends that the RD erroneously determined what would be the most appropriate unit, not whether the existing units would continue to be appropriate. NAGE argues that the RD erred in finding that separate units would not promote effective dealings with the Activity. In this regard, NAGE asserts that no evidence was submitted to show that separate units would impair effective dealings, specifically that there is no evidence that the personnel policies of the transferred employees are any different from those of other employees at their respective, local geographic cites. NAGE argues that the RD's finding that all of the employees are subject to the same FISCN personnel policies is insignificant because it "may mean nothing more than that [FISCN] has personnel policies consistent with [F]ederal employees nationwide that are printed on FISC letterhead." NAGE Application at 7-8.
In addition, NAGE argues that the RD's failure to hold an election "eliminated the right of the affected employees to choose a representative." Id. at 8. NAGE asserts that, while the petition was pending, the Activity continued to adjust the number of employees already represented by AFGE, Local 53 bargaining unit so that those employees would constitute 70 percent or more of the combined bargaining unit.
2. IFPTE
IFPTE contends that the RD "committed a prejudicial error." IFPTE Application at 6. In this connection, IFPTE argues that the RD failed to hold a hearing that would have provided IFPTE the opportunity to offer testimony and to cross-examine the testimony of Activity witnesses. In addition, IFPTE argues that the RD failed to consider unfair labor practice (ULP) charges that it had submitted to the RD as evidence that "FISCN had . . . abrogated its responsibility to maintain the status quo with respect to representation, and thereby interfered with IFPTE's representation of the transferred employees after the transfer." Id. at 4-5. In this regard, IFPTE maintains that the ULP charges are relevant to determining the appropriateness of separate units. [ v62 p501 ]
3. Activity
The Activity contends that Authority case law supports the RD's determinations not to hold a hearing and not to direct an election. In addition, the Activity contends that the issues raised in IFPTE's ULP charges have no bearing on the issues in this case.
IV. Analysis and Conclusions
1. The RD did not fail to apply established law or commit a prejudicial procedural error by failing to hold a hearing.
Under § 2422.30(b) of the Authority's Regulations, an RD "will issue a notice of hearing to inquire into any matter about which a material issue of fact exists, and any time there is a reasonable cause to believe a question exists regarding unit appropriateness." Then, "if [the RD] has reasonable cause to believe that a question of representation exists, [the RD] shall provide an opportunity for a hearing[.]" 5 U.S.C. § 7111(b) (emphasis added). Interpreting these provisions, the Authority has held that RDs have "broad discretion" to determine whether a hearing is necessary. United States Envtl. Prot. Agency, 61 FLRA 417, 420 (2005), recons. denied, 61 FLRA 806 (2006) (EPA); see Fed. Mediation & Conciliation Serv., 52 FLRA 1509, 1516 (1997) (FMCS). In particular, "the RD may determine, on the basis of the investigation . . . that `there are sufficient facts not in dispute to form the basis for a decision or that, even where some facts are in dispute, the record contains sufficient evidence on which to base a decision.'" Id. (quoting United States Dep't of Agric. Forest Serv., Apache-Sitgreaves Nat'l Forest, Springerville, Ariz., 47 FLRA 945, 952 (1993)).
The RD conducted several telephone conferences with the parties in which she gave all of the parties opportunities to present evidence. After completing her investigation, the RD determined, and notified the parties, that a hearing was not required. The Regulations simply require the RD to make such investigation as the RD "deems necessary," which the RD did in this matter. 5 C.F.R. § 2422.30(a).
NAGE's reliance on 5 C.F.R. §§ 2422.18(a) and 2422.16(c) is misplaced. Under § 2422.18(a), a representation hearing is "investigatory" and "not adversarial." The purpose of such a hearing "is to develop a full and complete record of relevant and material facts." Id. The wording of this regulatory provision describes the purpose of representation hearings, and there is nothing in the wording that compels a hearing.
Section 2422.16(c) provides, in pertinent part, that "[b]efore directing an election, the Regional Director shall provide affected parties an opportunity for a hearing on other than procedural matters[.]" 5 C.F.R. § 2422.16(c) (emphasis added). This regulatory provision is not applicable because, as discussed above, the RD did not direct an election in this case.
For the foregoing reasons, we find that NAGE and IFPTE have not demonstrated that the RD erred as a matter of law or committed a prejudicial procedural error by not holding a hearing. See, e.g., EPA, 61 FLRA at 420.
2. The RD did not fail to apply established law in determining the appropriate unit.
NAGE contends that the RD erroneously determined what would be the most appropriate unit, not whether the existing units would continue to be appropriate, citing AFGE, Local 2004, 47 FLRA 969, 972 (1993) (Local 2004). NAGE Application at 8. In this connection, NAGE challenges the RD determination that separate recognitions of units of employees would not promote effective dealings and efficiency of Activity operations.
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 FISC, 52 FLRA at 959. A proposed unit must meet all three appropriate unit criteria in order to be found appropriate. Id. at 961 n.6. Moreover, the Authority does not specify the weight of individual factors to be considered in making appropriate unit determinations. United States Dep't of the Army, United States Army Reserve Command, Fort McPherson, Ga., 57 FLRA 95, 96 (2001); Local 2004, 47 FLRA at 972. However, for a petitioned-for separate bargaining unit to be appropriate, the employees at issue must have significant employment concerns or personnel issues that are different or unique from those of other employees. See FISC, 52 FLRA at 960; see also United States Dep't of the Interior, Nat'l Park Serv., Wash., D.C., 55 FLRA 311, 315 (1999).
The RD cited pertinent Authority precedent and determined that the employees who transferred from the various facilities do not constitute separate appropriate units under § 7112(a). First, as set forth above, the RD determined that the employees transferred to FISCN do not enjoy a clear and identifiable community of interest [ v62 p502 ] that is distinct from the existing unit represented by AFGE, Local 53. Next, as also set forth above, the RD determined that separate recognitions of units of employees would not promote effective dealings and efficiency of Activity operations. In addition, the RD determined that separating the employees into very small units that would coexist with a larger unit consisting of many geographical sites would result in "unwarranted fragmentation." RD Decision at 27.
Consequently, the RD concluded that the employees who transferred from the various Naval facilities are not included in, and do not constitute, separate appropriate units defined by their respective geographic locations or former certifications.
NAGE has not provided any evidence to the Authority showing that RD erred in making that determination. In addition, NAGE did not provide any evidence to the RD regarding how the appropriate unit factors applied to employees in the individual bargaining units, and NAGE has not sufficiently explained why it could not have introduced such evidence to the RD.
Further, contrary to NAGE's claim, the RD did not apply a "most appropriate unit" standard. Thus, NAGE's claim provides no basis for finding that the RD erred.
For the foregoing reasons, we find that NAGE has not demonstrated that the RD erred as a matter of law in making her appropriate unit determination.
3. The RD did not fail to apply established law or commit a clear and prejudicial error concerning a substantial factual matter by declining to order an election.
NAGE argues that because the RD failed to hold an election, the transferred employees were not given an opportunity to choose an exclusive representative. In this regard, NAGE asserts that, while the petition was pending, the Activity continued to adjust the number of employees already represented by the AFGE, Local 53 bargaining unit so that those employees would constitute 70 percent or more of the combined bargaining unit. [n4]
NAGE has not provided any evidence that the RD erred in her findings as to the number of employees represented by AFGE, Local 53. Thus, we find that NAGE has not demonstrated that the RD erred by declining to order an election on this ground.
4. The RD did not fail to apply established law or commit a prejudicial procedural error by declining to address pending ULP charges.
IFPTE argues that the RD erred by failing to consider ULP charges that it submitted as part of the record. Copies of those charges are contained in the record, but the RD did not discuss them. Nevertheless, IFPTE has not shown, and it is not apparent, that those charges are relevant to determining the appropriate unit and accretion issues in this case. Thus, IFPTE has not demonstrated that the RD erred by failing to address the ULP charges in rendering her decision.
V. Order
The applications for review are denied.
Footnote # 1 for 62 FLRA No. 91 - Authority's Decision
Section 7112(a) provides, in pertinent part, that the Authority "shall determine any unit to be an appropriate unit only if the determination will 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 # 2 for 62 FLRA No. 91 - Authority's Decision
In discussing the requirements used to determine whether a gaining entity is a successor employer, such that an election among labor unions that previously represented employees in the new unit is not necessary, the Authority held in Redstone Arsenal that "absent special circumstances . . . a union that represents more than 70 percent of the employees in a newly combined unit formerly represented by two or more unions is sufficiently predominant to render an election unnecessary because such an election would be a useless exercise." 56 FLRA at 131 (citation omitted). As noted below, we find it unnecessary to address whether the 70 percent "sufficiently predominant" test applies in this case.
Footnote # 3 for 62 FLRA No. 91 - Authority's Decision
The pertinent wording of these provisions is set forth below.
Footnote # 4 for 62 FLRA No. 91 - Authority's Decision
We note that no party is contesting the RD's decision to apply in this accretion case the 70 percent "sufficiently predominant" rule developed in successorship cases. Accordingly, we find it unnecessary to resolve whether this is the appropriate rule to apply in accretion cases.