[ v02 p900 ]
02:0900(111)AS
The decision of the Authority follows:
2 flra No. 111
MR. ROBERT E. EDWARDS
ASSOCIATE GENERAL COUNSEL
CHIEF, LABOR RELATIONS LAW BRANCH
DEPARTMENTS OF THE ARMY AND THE AIR FORCE
HEADQUARTERS, ARMY AND AIR FORCE
EXCHANGE SERVICE
DALLAS, TEXAS 75222
RE: ARMY AND AIR FORCE EXCHANGE
SERVICE, DALLAS, TEXAS, A/SLMR
No. 1163, FLRA No. 0-AS-11
DEAR MR. EDWARDS:
THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION IN THE
ABOVE-ENTITLED CASE.
IN THIS CASE, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (THE
UNION) FILED A PETITION SEEKING TO CONSOLIDATE 13 SEPARATE BARGAINING
UNITS EXCLUSIVELY REPRESENTED BY CERTAIN OF ITS CONSTITUENT LOCALS AT
ELEMENTS OF THE ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES). THE
CONSOLIDATED UNIT SOUGHT WOULD CONSIST OF ALL NONPROFESSIONAL AAFES
EMPLOYEES EXCLUSIVELY REPRESENTED BY THE UNION IN THE CONTINENTAL UNITED
STATES.
THE ASSISTANT SECRETARY, AFTER REVIEWING THE MISSION, FUNCTIONS,
ORGANIZATIONAL STRUCTURE AND OPERATIONS OF AAFES, FOUND THE PROPOSED
CONSOLIDATED UNIT WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER. IN SO FINDING, THE ASSISTANT SECRETARY
REFERRED TO SEVERAL COUNCIL DECISIONS INVOLVING THE CONSOLIDATION OF
BARGAINING UNITS IN WHICH THE ASSISTANT SECRETARY'S ESTABLISHMENT OF A
PRESUMPTION FAVORING CONSOLIDATIONS WAS CONSTRUED "* * * AS A
RECOGNITION AND AFFIRMATION OF THE STRONG POLICY IN THE FEDERAL
LABOR-MANAGEMENT RELATIONS PROGRAM OF FACILITATING CONSOLIDATION. . . .
" /1/ HE ALSO NOTED THE COUNCIL'S INDICATION, IN THOSE DECISIONS, THAT
SUCH AFFIRMATION ACCURATELY REFLECTS THE POLICY SET FORTH IN THE
COUNCIL'S 1975 REPORT AND RECOMMENDATIONS TO FACILITATE THE
CONSOLIDATION OF EXISTING UNITS WHICH CONFORM TO THE APPROPRIATE UNIT
CRITERIA CONTAINED IN SECTION 10(B) OF THE ORDER.
BASED UPON THE FOREGOING POLICY CONSIDERATIONS AND THE PARTICULAR
FACTS OF THE INSTANT CASE, THE ASSISTANT SECRETARY CONCLUDED THAT THE
PROPOSED CONSOLIDATED UNIT WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER. IN THIS REGARD HE STATED:
THUS, * * * THE UNIT SOUGHT ENCOMPASSES ALL THE EMPLOYEES WITHIN THE
AAFES REPRESENTED BY
THE (UNION) AND ALL OF THE VARIOUS UNITS ALONE, OR IN COMBINATION,
CONTAIN ESSENTIALLY ALL THE
NONPROFESSIONAL EMPLOYEES AT THE VARIOUS ACTIVITIES INVOLVED.
ADDITIONALLY, IT IS NOTED THAT
ALL THE EMPLOYEES WITHIN THE PETITIONED FOR CONSOLIDATED UNIT SHARE A
COMMON MISSION, COMMON
OVERALL SUPERVISION, ESSENTIALLY SIMILAR JOB CLASSIFICATIONS AND
WORKING CONDITIONS, SIMILAR
PERSONNEL AND LABOR RELATIONS POLICIES AND PRACTICES AS DELEGATED IN
ACCORDANCE WITH THE
AAFES' DELEGATION OF AUTHORITY.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN THE
PETITIONED FOR UNIT SHARE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST.
I FIND FURTHER THAT THE PETITIONED FOR CONSOLIDATED UNIT WILL PROMOTE
EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. THUS, THE RECORD REFLECTS THAT
HEADQUARTERS, AAFES,
THROUGH AAFES REGULATIONS, PROMULGATED BY THE DEPARTMENTS OF THE ARMY
AND AIR FORCE, AND
THROUGH THE PROMULGATION AND ADMINISTRATION OF ITS OWN EXCHANGE
SERVICE MANUAL, EFFECTIVELY
DEVELOPS AGENCY POLICY IN ALL MATTERS RELATING TO AAFES PERSONNEL
POLICIES AND PRACTICES,
INCLUDING REDUCTION-IN-FORCE, HIRING, PROMOTIONS AND WAGE AND SALARY
DETERMINATIONS, ETC.,
WHICH ARE THEN DISSEMINATED TO THE FIELD FOR IMPLEMENTATION OF THOSE
POLICIES WITHIN THE LOCAL
FRAMEWORK. MOREOVER, ALTHOUGH THE RECORD REFLECTS THAT EACH REGION,
WITH THE EXCEPTION OF THE
ALAMO REGION, HAS A LABOR RELATIONS SPECIALIST WHO HANDLES LABOR
RELATIONS FOR THAT REGION,
THE EVIDENCE ESTABLISHES THAT ALL AGREEMENTS MUST BE APPROVED BY THE
GENERAL COUNSEL'S OFFICE
LOCATED AT AAFES HEADQUARTERS. IN ADDITION, THE GENERAL COUNSEL'S
OFFICE ADVISES THE REGIONAL
LABOR RELATIONS SPECIALISTS ON TECHNICAL MATTERS AND, IN THE CASE OF
THE ALAMO REGION,
REPRESENTATIVES OF THE GENERAL COUNSEL HANDLE THE ACTUAL NEGOTIATIONS
FOR THAT REGION. FIELD
EXCHANGES MUST NOTIFY THE GENERAL COUNSEL'S OFFICE WHEN REQUESTS ARE
MADE TO NEGOTIATE NEW
AGREEMENTS OR TO MODIFY EXISTING AGREEMENTS, WHEN REQUESTS ARE MADE
TO USE THE SERVICES OF THE
FEDERAL MEDIATION AND CONCILIATION SERVICE OR THE FEDERAL SERVICE
IMPASSES PANEL, WHEN
NEGOTIABILITY ISSUES ARE APPEALED TO THE COUNCIL, OR WHEN
APPLICATIONS FOR A DECISION ON
GRIEVABILITY OR ARBITRABILITY ARE FILED WITH THE ASSISTANT SECRETARY.
FURTHERMORE, WHEN
NEGOTIATED AGREEMENTS PROVIDE FOR AUTOMATIC RENEWAL UPON APPROPRIATE
NOTICE, SUCH NOTICES MAY
NOT ISSUE WITHOUT THE APPROVAL OF THE GENERAL COUNSEL'S OFFICE. THE
RECORD SHOWS THAT THE
AAFES AND THE (UNION) HAVE NEGOTIATED SIX SEPARATE AND TWO MULTI-UNIT
AGREEMENTS COVERING 11
OF THE UNITS AT THE INDIVIDUAL ACTIVITIES INVOLVED HEREIN, AND THAT
THERE IS A HIGH DEGREE OF
COMMONALITY BETWEEN THE AGREEMENTS IN THAT MANY OF THE INDIVIDUAL
SUBJECTS ARE DEALT WITH
UNIFORMLY. THUS, ALTHOUGH THE AAFES CONTENDS THAT THE AUTHORITY TO
NEGOTIATE AGREEMENTS HAS
BEEN DELEGATED TO THE REGIONS IN ORDER TO TAILOR LOCAL AGREEMENTS TO
THE PARTICULAR NEEDS OF
THE REGION, AREA, BASE, OR POST EXCHANGE, THE RECORD SHOWS A PATTERN
OF UNIFORMITY WITHIN THE
NEGOTIATED AGREEMENTS.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY
OPERATIONS WOULD BE PROMOTED BY THE ESTABLISHMENT OF THE PROPOSED
CONSOLIDATED UNIT AND THAT
AAFES LABOR RELATIONS POLICIES COULD REMAIN ESSENTIALLY THE SAME, AS
EVIDENCED BY THE
UNIFORMITY IN CURRENT CONTRACT PROVISIONS, AND MIGHT WELL BE ENHANCED
IF THE PROPOSED
CONSOLIDATED UNIT WERE EFFECTUATED. IN THIS LATTER REGARD, REGIONAL
LABOR RELATIONS
SPECIALISTS AND OTHER FIELD PERSONNEL SPECIALISTS COULD CONTINUE TO
PROVIDE INPUT INTO THE
NEGOTIATING PROCESS AND THE PARTICULAR NEEDS OF INDIVIDUAL FIELD
EXCHANGES COULD BE SATISFIED
BY THE USE OF LOCAL SUPPLEMENTAL AGREEMENTS. MOREOVER, I FIND THAT
AS THE PROPOSED
CONSOLIDATED UNIT, COVERING ALL OF THE EMPLOYEES REPRESENTED BY THE
(UNION) IN THE AAFES WILL
PROVIDE FOR BARGAINING IN A SINGLE UNIT, RATHER THAN IN THE EXISTING
13 BARGAINING UNITS, IT
WILL PROMOTE A MORE COMPREHENSIVE BARGAINING UNIT STRUCTURE AND IS
CONSISTENT WITH THE POLICY
OF THE EXECUTIVE ORDER SET FORTH ABOVE. (FOOTNOTES OMITTED.)
IN THE ACTIVITY'S PETITION FOR REVIEW IT IS ALLEGED THAT THE
ASSISTANT SECRETARY'S DECISION RAISES MAJOR POLICY ISSUES. SPECIFICALLY,
REVIEW IS REQUESTED ON THE FOLLOWING FOUR GROUNDS:
1. THE ASSISTANT SECRETARY'S DECISION ERRS BECAUSE IT FAILS TO
ACCORD PROPER WEIGHT TO
APPROPRIATE UNIT CRITERIA AS REQUIRED BY CONTROLLING PRINCIPLES OF
UNIT DETERMINATION.
2. THE ASSISTANT SECRETARY'S DECISION ERRS IN ITS APPLICATION OF
UNIT CRITERIA BECAUSE IN
ITS ANALYSIS OF "COMMUNITY OF INTEREST" THE ELEMENTS CHOSEN FOR
EXAMINATION FAIL TO DELINEATE
ANY "CLEAR AND IDENTIFIABLE" INTEREST OTHER THAN THOSE COMMON
EMPLOYMENT CHARACTERISTICS
SHARED BY ALL AAFES EMPLOYEES AND BECAUSE NEITHER "EFFECTIVE
DEALINGS" (N)OR "EFFICIENCY OF
AGENCY OPERATIONS" (IS) SERVED BY CONSOLIDATION.
3. THE ASSISTANT SECRETARY'S DECISION ERRS IN GIVING WEIGHT TO THE
FACT THAT AGREEMENTS
ARE APPROVED AT THE AAFES GENERAL COUNSEL'S OFFICE BECAUSE SUCH
APPROVAL HAS NO MORE
SIGNIFICANCE THAN PUTTING INTO PRACTICE THE PROVISIONS OF SECTION 15
OF EXECUTIVE ORDER 11491.
4. THE ASSISTANT SECRETARY'S DECISION HERE RAISES THE IDENTICAL
ISSUES THAT WERE RAISED IN
(VETERANS ADMINISTRATION, A/SLMR NO. 1016,) FLRC NO. 78A-123 WHICH
THE AUTHORITY CURRENTLY HAS
UNDER REVIEW AS HAVING PRESENTED MAJOR POLICY ISSUES AND ON WHICH A
STAY WAS ORDERED PENDING
CONSIDERATION OF THE ISSUES RAISED.
IN THE AUTHORITY'S OPINION, THE ACTIVITY'S PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION
2400.2 OF THE AUTHORITY'S TRANSITION RULES AND REGULATIONS WHICH
INCORPORATES BY REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES. THAT
IS, THE DECISION OF THE ASSISTANT SECRETARY DOES NOT PRESENT ANY MAJOR
POLICY ISSUES AND IT IS NEITHER ALLEGED, NOR DOES IT OTHERWISE APPEAR,
THAT HIS DECISION IS ARBITRARY AND CAPRICIOUS.
WITH RESPECT TO THE FIRST ALLEGATION, THAT THE ASSISTANT SECRETARY
FAILED TO ACCORD PROPER WEIGHT TO THE APPROPRIATE UNIT CRITERIA
CONTAINED IN SECTION 10(B) OF THE ORDER, NO BASIS FOR AUTHORITY REVIEW
IS THEREBY PRESENTED. IN THIS REGARD, IT IS NOTED PARTICULARLY THAT THE
ASSISTANT SECRETARY AFFIRMATIVELY FOUND, BASED ON THE ENTIRE RECORD,
THAT THE PROPOSED CONSOLIDATED UNIT IN THE INSTANT CASE SATISFIES EACH
OF THE CRITERIA SPECIFIED IN SECTION 10(B) AND WILL PROMOTE A MORE
COMPREHENSIVE BARGAINING UNIT STRUCTURE CONSISTENT WITH THE POLICIES OF
THE ORDER. AS TO THE SECOND AND THIRD GROUNDS ASSERTED, IN EFFECT THAT
THE ASSISTANT SECRETARY IMPROPERLY APPLIED THE APPROPRIATE UNIT CRITERIA
TO THE FACTS IN THIS CASE, SUCH ASSERTION CONSTITUTES ESSENTIALLY
NOTHING MORE THAN MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
FINDING, BASED UPON ALL OF THE FACTS AND CIRCUMSTANCES PRESENTED, THAT
THE PROPOSED CONSOLIDATED UNIT IS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER THE ORDER. ACCORDINGLY, NO BASIS FOR REVIEW
IS THEREBY PRESENTED. FINALLY, NO MAJOR POLICY ISSUE IS RAISED HEREIN
ON THE GROUND THAT THE AUTHORITY ACCEPTED FOR REVIEW THE ASSISTANT
SECRETARY'S FINDING IN A PREVIOUS DECISION (A/SLMR NO. 1016) THAT THE
PROPOSED CONSOLIDATED UNIT THEREIN WAS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER THE ORDER. IN SUSTAINING THE ASSISTANT
SECRETARY'S FINDING IN THAT CASE, /2/ THE AUTHORITY NOTED THAT THE
ASSISTANT SECRETARY HAD RELIED ON A SERIES OF DECISIONS, ALSO CITED AND
RELIED ON BY THE ASSISTANT SECRETARY HEREIN (SEE NOTE 1, SUPRA), IN
WHICH THE COUNCIL DENIED REVIEW OF FINDINGS THAT PROPOSED CONSOLIDATED
UNITS SIMILAR TO THE ONE INVOLVED HEREIN SATISFIED THE THREE CRITERIA OF
SECTION 10(B) AND WERE CONSISTENT WITH THE PURPOSES AND POLICIES OF THE
ORDER. THE AUTHORITY FURTHER CITED AND QUOTED FROM ITS OWN RECENT
DECISION IN VETERANS ADMINISTRATION, WASHINGTON, D.C., ASSISTANT
SECRETARY, CASE NO. 22-08518(UC), 1 FLRA NO. 55 (JUNE 12, 1979), REPORT
NO. 8, WHICH WAS ALSO ISSUED UNDER THE ORDER, IN CONCLUDING THAT THE
ASSISTANT SECRETARY'S FINDING WAS CONSISTENT WITH THE PURPOSES AND
POLICIES OF THE ORDER. FOR THE REASONS MORE FULLY STATED IN THAT
DECISION, AND IN LIGHT OF ESTABLISHED COUNCIL PRECEDENT, THE AUTHORITY
CONCLUDES THAT THE ASSISTANT SECRETARY'S DECISION IN THE INSTANT CASE
DOES NOT RAISE A MAJOR POLICY ISSUE WARRANTING AUTHORITY REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION PRESENTS NO MAJOR POLICY
ISSUE AND IT IS NEITHER ALLEGED, NOR DOES IT OTHERWISE APPEAR, THAT HIS
DECISION IS ARBITRARY AND CAPRICIOUS, THE APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
AUTHORITY'S TRANSITION RULES AND REGULATIONS WHICH INCORPORATES BY
REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES. ACCORDINGLY, THE
PETITION FOR REVIEW IS HEREBY DENIED, AND THE REQUEST FOR A STAY IS ALSO
DENIED. /3/
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CC: P. E. TRAYERS
NAGE
/1/ EDUCATION DIVISION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
WASHINGTON, D.C. A/SLMR NO. 822, FLRC NO. 77A-88 (MAR. 1, 1978), REPORT
NO. 145; INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND NATIONAL
TREASURY EMPLOYEES UNION, A/SLMR NO. 831, FLRC NO 77A-112 (MAR. 1,
1978), REPORT NO. 145; AND BUREAU OF FIELD OPERATIONS, OFFICE OF
PROGRAM OPERATIONS, SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, CHICAGO REGION V-A, A/SLMR NO. 876, FLRC
NO. 77A-136 (MAR. 1, 1978), REPORT NO. 145.
/2/ VETERANS ADMINISTRATION, A/SLMR NO. 1016, FLRC NO. 78A-123, 2
FLRC NO. 25 (DEC. 7, 1979).
/3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.