[ v05 p646 ]
05:0646(89)UC
The decision of the Authority follows:
5 FLRA No. 89
DEPARTMENT OF TRANSPORTATION,
WASHINGTON, D.C.
Agency
and
Case No. 3-UC-3
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3313, AFL-CIO
Petitioner
and
DEPARTMENT OF TRANSPORTATION, RESEARCH
AND SPECIAL PROGRAMS ADMINISTRATION,
WASHINGTON, D.C.
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3313, AFL-CIO
Petitioner
Case Nos. 3-CU-8,
3-CU-9
DECISION AND ORDER
UPON PETITIONS DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B)(2) AND SECTION 7112(D) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101-7135, A CONSOLIDATED
HEARING WAS HELD BEFORE HEARING OFFICERS OF THE AUTHORITY. THE
AUTHORITY HAS REVIEWED THE HEARING OFFICERS' RULINGS MADE AT THE HEARING
AND FINDS THAT THEY ARE FREE FROM PREJUDICIAL ERROR. THE RULINGS ARE
HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY BOTH
PARTIES, THE AUTHORITY FINDS:
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3313, AFL-CIO, FILED THE INSTANT UNIT CONSOLIDATION (UC) PETITION
SEEKING TO CONSOLIDATE THE FIVE UNITS WITHIN THE DEPARTMENT OF
TRANSPORTATION (DOT) FOR WHICH IT IS THE EXCLUSIVE REPRESENTATIVE AND A
UNIT WITHIN DOT FOR WHICH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE NATIONAL) IS THE EXCLUSIVE REPRESENTATIVE. /1/
THE UNITS PRESENTLY REPRESENTED BY THE PETITIONER INCLUDE: (1) ALL THE
HEADQUARTERS NONPROFESSIONAL EMPLOYEES OF THE OFFICE OF THE SECRETARY OF
TRANSPORTATION (OST), EXCLUDING PROFESSIONAL EMPLOYEES, WAGE GRADE
EMPLOYEES IN THE BINDERY UNIT, PUBLICATIONS AND GRAPHICS DIVISION, AND
THE REMAINING WAGE GRADE EMPLOYEES IN THE PUBLICATIONS AND GRAPHICS
DIVISION; (2) ALL THE HEADQUARTERS PROFESSIONAL EMPLOYEES OF THE URBAN
MASS TRANSIT ADMINISTRATION (UMTA); AND (5) THE HEADQUARTERS
PROFESSIONAL EMPLOYEES OF UMTA. AFGE NATIONAL REPRESENTS A UNIT OF ALL
THE NONPROFESSIONAL EMPLOYEES, NATIONWIDE, OF THE NATIONAL HIGHWAY
TRAFFIC SAFETY ADMINISTRATION (NHTSA), WHICH WOULD BE INCLUDED IN THE
PROPOSED CONSOLIDATED UNIT. THE PETITIONER ALSO CLAIMS TO REPRESENT THE
HEADQUARTERS PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE RESEARCH
AND SPECIAL PROJECTS ADMINISTRATION (RSPA) OF THE DOT IN THE SEPARATE
OST UNITS OUTLINED ABOVE. THE RSPA WAS CREATED FROM ELEMENTS OF THE OST
IN 1977, AND, IN FILING THE INSTANT CLARIFICATION OF UNIT (CU) PETITIONS
HEREIN, THE PETITIONER SEEKS TO CLARIFY ITS OST UNITS SO AS TO INCLUDE
THE APPROPRIATE RSPA EMPLOYEES. IF THE AUTHORITY AGREES THAT THE RSPA
EMPLOYEES ARE PROPERLY PART OF ITS OST UNITS, THE PETITIONER WOULD
INCLUDE THEM IN THE PROPOSED CONSOLIDATED UNIT.
THE DOT CONTENDS THAT THE PROPOSED CONSOLIDATED UNIT IS NOT
APPROPRIATE FOR THE PURPOSES OF EXCLUSIVE RECOGNITION BECAUSE IT DOES
NOT MEET THE CRITERIA ESTABLISHED BY SECTION 7112(A)(1) OF THE STATUTE.
/2/ ITS PRIMARY CONTENTION IN THIS REGARD IS THAT EACH OF THE
"ADMINISTRATIONS" WITHIN DOT IS A FUNCTIONALLY UNIQUE ENTITY WHICH IS
RESPONSIBLE FOR A DISTINCT MISSION AND WHICH HAS BEEN DELEGATED
INDEPENDENT CONTROL OF ITS OWN PERSONNEL AND LABOR RELATIONS FUNCTIONS.
UNDER THESE CIRCUMSTANCES, THE DOT CONTENDS THAT THE EMPLOYEES IN THE
PROPER CONSOLIDATED UNIT HAVE NO COMMUNITY OF INTEREST WHICH TRANSCENDS
THE ADMINISTRATION WHICH EMPLOYS THEM. THE AGENCY FURTHER CONTENDS THAT
THE INDEPENDENCE OF ITS ADMINISTRATIONS PRECLUDES EFFECTIVE DEALINGS AND
THE EFFICIENCY OF THE AGENCY'S OPERATIONS IN THE PROPOSED UNIT, AS THERE
WOULD BE NO APPROPRIATE NEXUS OF AUTHORITY RESPONSIBLE FOR NEGOTIATING
WITH THE PETITIONER UNDER SUCH CIRCUMSTANCES.
THE PETITIONER'S PRIMARY CONTENTION IS THAT MANY OF THE ISSUES OF
CONCERN TO THE EMPLOYEES IT REPRESENTS ARE NOT DELIMITED BY THE
ADMINISTRATIVE LINES WHICH PRESENTLY CIRCUMSCRIBE ITS UNITS, AND THAT
THE CONSOLIDATED UNIT WHICH IT SEEKS HEREIN, WILL ALLOW BOTH IT AND THE
DOT TO HAVE A MORE EFFECTIVE COLLECTIVE BARGAINING RELATIONSHIP. THE
PETITIONER FURTHER CONTENDS THAT THE CONSOLIDATED UNIT MEETS THE
CRITERIA FOR UNIT APPROPRIATENESS ESTABLISHED BY SECTION 7112(A)(1) OF
THE STATUTE. WITH RESPECT TO COMMUNITY OF INTEREST, THE PETITIONER
CONTENDS THAT THE EMPLOYEES IT REPRESENTS HAVE A COMMON MISSION WITHIN
THE DOT, THAT THEY SHARE ESSENTIALLY SIMILAR WORKING CONDITIONS WITHIN
THE WASHINGTON, D.C., AREA, THAT THEY HAVE ESSENTIALLY COMMON GRIEVANCE
AND APPEALS PROCEDURES AVAILABLE TO THEM, THAT THERE IS A COMMONALITY OF
JOB CLASSIFICATIONS AND WORK EXPERIENCES, AND THAT THERE ARE ANY NUMBER
OF OTHER WORKING CONDITIONS WHICH THE EMPLOYEES IN THE PROPOSED UNIT
HAVE IN COMMON. THE PETITIONER FURTHER CONTENDS THAT EFFECTIVE DEALINGS
AND THE EFFICIENCY OF THE AGENCY'S OPERATIONS WILL BE ENHANCED WHEN MANY
ISSUES WHICH CROSS ADMINISTRATIVE LINES OF JURISDICTION CAN BE
NEGOTIATED UNIFORMLY AND THAT THE DOT'S CENTRALIZED PERSONNEL AND LABOR
RELATIONS PERSONNEL ARE EQUIPPED TO DEAL WITH THE CONSOLIDATED UNIT
SOUGHT.
WITH RESPECT TO THE CU PETITION, THE DOT CONTENDS THAT THE RSPA IS
FUNCTIONALLY AND ORGANIZATIONALLY UNIQUE AND THAT IT WOULD BE
INAPPROPRIATE AND INEFFICIENT TO REQUIRE THE MANAGEMENT OF OST AND RSPA
TO JOINTLY ADMINISTER A LABOR RELATIONS PROGRAM FOR UNITS ENCOMPASSING
THE EMPLOYEES OF BOTH ADMINISTRATIONS. IN THE PETITIONER'S VIEW, RSPA
WAS, IN EFFECT, CARVED OUT OF OST, THE RSPA EMPLOYEES ARE STILL SERVICED
BY THE OST'S PERSONNEL AND LABOR RELATIONS OFFICES, THE EMPLOYEES SHARE
THE SAME GRIEVANCE PROCEDURES, AND THERE IS A REGULAR AND RECURRING
INTERCHANGE OF EMPLOYEES BETWEEN THE TWO ADMINISTRATIONS, ALL OF WHICH
INDICATES A CONTINUING COMMUNITY OF INTEREST BETWEEN THE AFFECTED
EMPLOYEES.
BACKGROUND AND FACTS
THE DOT IS RESPONSIBLE FOR ESTABLISHING THE OVERALL TRANSPORTATION
POLICY OF THE UNITED STATES. DOT IS MADE UP OF NINE ADMINISTRATIONS --
THE OST AND EIGHT OPERATING ADMINISTRATIONS WITH FUNCTIONAL
RESPONSIBILITIES. THE HEADQUARTERS OPERATION OF DOT, WHICH IS HEADED BY
THE SECRETARY OF TRANSPORTATION, IS LOCATED WITHIN WASHINGTON, D.C. OST
PROVIDES STAFF CAPABILITIES FOR THE SECRETARY, INCLUDING SUCH FUNCTIONAL
AREAS AS POLICY, INTERNATIONAL AFFAIRS, BUDGET, ADMINISTRATION,
GOVERNMENTAL AND PUBLIC AFFAIRS, LEGAL COUNSEL AND REGIONAL
REPRESENTATION IN DOT'S TEN REGIONAL OFFICES. AS NOTED ABOVE, THE
PETITIONER CLAIMS TO REPRESENT EMPLOYEES IN OST AND FOUR OF DOT'S
OPERATING ADMINISTRATIONS -- THE COAST GUARD, UMTA, NHTSA, AND RSPA.
ADDITIONALLY, THERE ARE FOUR OPERATING COMPONENTS OF DOT NOT AFFECTED BY
THE INSTANT PETITION, WHICH INCLUDE THE FEDERAL AVIATION ADMINISTRATION
(FAA), THE FEDERAL HIGHWAY ADMINISTRATION (FHWA), THE FEDERAL RAILROAD
ADMINISTRATION (FRA) AND THE ST. LAWRENCE SEAWAY DEVELOPMENT CORPORATION
(SLSDC). ALL OF THESE EIGHT COMPONENTS HAVE THEIR HEADQUARTERS
OPERATIONS WITHIN WASHINGTON, D.C., EXCEPT FOR SLSDC, WHICH IS
HEADQUARTERED IN MASSENA, NEW YORK. EACH COMPONENT ALSO HAS VARYING
NUMBERS OF FIELD EMPLOYEES, WITH THE EXTREMES INDICATING THAT 90% OF
OST'S EMPLOYEES ARE LOCATED WITHIN THE WASHINGTON, D.C., AREA, WHILE 90%
OF FAA'S EMPLOYEES ARE IN THE FIELD.
THE LATEST AVAILABLE EVIDENCE INDICATES THAT THE DOT HAS SOME 71,000
CIVILIAN EMPLOYEES. THE FIVE ADMINISTRATIONS THAT WOULD BE INCLUDED IN
THE PROPOSED CONSOLIDATED UNIT HAVE APPROXIMATELY 9,600 CIVILIAN
EMPLOYEES, WITH SOME 3,500 OF THOSE BEING EMPLOYED IN HEADQUARTERS
OPERATIONS. THE HEADQUARTERS OF THE FOUR ADMINISTRATIONS EXCLUDED FROM
THE PRESENT UNIT EMPLOY SOME 4,200 CIVILIAN EMPLOYEES. BROADLY
SPEAKING, UMTA DEALS WITH MASS TRANSIT MATTERS, THE COAST GUARD ENFORCES
FEDERAL LAWS OF THE SEAS AND WATERS UNDER THE JURISDICTION OF THE UNITED
STATES, NHTSA IS INVOLVED WITH PROGRAMS AIMED AT REDUCING AUTOMATIVE
FUEL CONSUMPTION AND ACCIDENTS, RSPA PLANS AND MANAGES PROGRAMS IN
TRANSPORTATION RESEARCH AND DEVELOPMENT, AND OST'S MISSION IS DESCRIBED
ABOVE. THE ADMINISTRATIONS OPERATE INDEPENDENTLY, SUBJECT ONLY TO BROAD
CONTROLS BY THE SECRETARY, DOT. EACH OF THE OPERATING ADMINISTRATIONS
WITHIN DOT HAS AN INDEPENDENT PERSONNEL AND LABOR RELATIONS OFFICE,
EXCEPT FOR RSPA, WHICH IS BEING SERVICED BY THE OST PERSONNEL OPERATIONS
DIVISION WHILE IT DEVELOPS ITS OWN RESOURCES. EACH OF THE OPERATING
ADMINISTRATIONS IS RESPONSIBLE FOR, AND EXCEPT FOR RSPA, ACTUALLY
MANAGES ON A DAILY BASIS, ITS OWN HIRING, FIRING, TRANSFER, AREAS OF
CONSIDERATION FOR PROMOTION AND REDUCTIONS IN FORCE AFFECTING MOST UNIT
EMPLOYEES, GRIEVANCE HANDLING, AND NEGOTIATION AND ADMINISTRATION OF
LABOR MANAGEMENT RELATIONS AGREEMENTS. WHILE THE OFFICE OF PERSONNEL
AND TRAINING IN OST HAS DOT-WIDE RESPONSIBILITY WITH RESPECT TO
PERSONNEL AND LABOR RELATIONS MATTERS, THE RECORD ESTABLISHED THAT
85-90% OF THE POLICIES IN THOSE AREAS ARE DEVELOPED INDEPENDENTLY BY THE
ADMINISTRATIONS AND THAT THE POLICIES ESTABLISHED BY THE DOT OFFICE OF
PERSONNEL ARE USUALLY DERIVATIVE OF POLICIES REQUIRED BY THE OFFICE OF
PERSONNEL MANAGEMENT, THE FEDERAL LABOR RELATIONS AUTHORITY, OR OTHER
OUTSIDE AGENCIES.
ESSENTIALLY, THE PETITIONER IS SEEKING A UNIT OF THE HEADQUARTERS
EMPLOYEES OF FIVE ADMINISTRATIONS, WITH SOME 90 FIELD EMPLOYEES OF THE
NHTSA ALSO INCLUDED. EXCEPT FOR THE NHTSA FIELD EMPLOYEES, THE OTHER
EMPLOYEES INCLUDED IN THE PROPOSED UNIT WORK IN REASONABLE PROXIMITY TO
EACH OTHER WITHIN WASHINGTON, D.C. UNDER THESE CIRCUMSTANCES, THEY
SHARE SUCH COMMON FACILITIES AS CAFETERIAS, CREDIT UNIONS, PARKING
SPACES, ETC. WHILE THERE ARE A NUMBER OF JOB CLASSIFICATIONS, BOTH
CLERICAL AND NONCLERICAL, WHICH ARE COMMON TO MORE THAN ONE OF THE
AFFECTED ADMINISTRATIONS, THERE ARE MANY EMPLOYEES WHOSE SKILLS,
TRAINING, AND EXPERIENCE ARE SUCH THAT THEIR PRIMARY OPPORTUNITIES FOR
TRANSFER OR PROMOTION ARE WITHIN A PARTICULAR ADMINISTRATION. WHILE THE
RECORD INDICATED THERE IS SOME INTERCHANGE OF EMPLOYEES BETWEEN THE
ADMINISTRATIONS INVOLVED IN THE PROPOSED UNIT, IT ALSO DISCLOSES A
GREATER NUMBER OF INSTANCES OF INTERCHANGE BETWEEN THE ADMINISTRATIONS
INVOLVED IN THE PROPOSED UNIT AND OTHER ADMINISTRATIONS WITHIN THE DOT.
THUS, WITHIN THE PERIOD FROM JUNE 1978 THROUGH MAY 1979, 45 EMPLOYEES
WHO WERE HIRED BY ONE OF THE ADMINISTRATIONS WITHIN THE PROPOSED UNIT
CAME FROM ANOTHER ADMINISTRATION WITHIN THE PROPOSED UNIT, WHILE 59
EMPLOYEES WERE HIRED FROM ONE OF THE OTHER ADMINISTRATIONS WITHIN DOT
WHICH IS OUTSIDE THE PROPOSED UNIT.
AS NOTED ABOVE, THE PETITIONER AND THE AFGE NATIONAL REPRESENT
EMPLOYEES IN SIX UNITS WHICH WOULD BE INCLUDED IN THE PROPOSED
CONSOLIDATED UNIT. THE PETITIONER HAS A SINGLE AGREEMENT, DATED JUNE
18, 1975, COVERING BOTH ITS PROFESSIONAL AND NONPROFESSIONAL UNITS IN
UMTA AND AN AGREEMENT DATED FEBRUARY 27, 1974, COVERING ITS
NONPROFESSIONAL OST UNIT. AFGE NATIONAL HAS AN AGREEMENT DATED FEBRUARY
19, 1974, COVERING THE NONPROFESSIONAL EMPLOYEES OF THE NHTSA. ALL OF
THESE AGREEMENTS APPEAR TO BE STILL IN EFFECT. AS NOTED ABOVE, CERTAIN
BINDERY EMPLOYEES ARE EXCLUDED FROM THE PETITIONER'S NONPROFESSIONAL OST
UNIT AND THE PROFESSIONAL EMPLOYEES IN NHTSA ARE APPARENTLY
UNREPRESENTED. OF THE 33 EXCLUSIVE UNITS COVERING COAST GUARD EMPLOYEES
IN VARIOUS FIELD FACILITIES, AFGE AFFILIATES REPRESENT 15. THE FIELD
EMPLOYEES OF OST, UMTA AND RSPA ARE APPARENTLY UNREPRESENTED. THE
PATTERN OF REPRESENTATION IN THE FOUR DOT ADMINISTRATIONS NOT INCLUDED
IN THE PROPOSED UNIT IS ALSO IRREGULAR. IN FAA, FOR EXAMPLE, WHICH
EMPLOYS SOME 75% OF DOT'S CIVILIAN EMPLOYEES, THERE ARE NATIONWIDE UNITS
OF THE FLIGHT SERVICE EMPLOYEES AND AIR TRAFFIC CONTROL SPECIALISTS
REPRESENTED BY THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION
(PATCO) AND A NATIONWIDE UNIT OF AIRWAYS FACILITIES DIVISION EMPLOYEES
REPRESENTED BY THE FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
ASSOCIATION (FASTA) AS WELL AS A NUMBER OF OTHER UNITS AT INDIVIDUAL
FACILITIES, WHILE THE REPRESENTATION OF HEADQUARTERS EMPLOYEES IS
LIMITED TO A FEW SMALL UNITS. AFGE LOCAL 2814 REPRESENTS ALL THE
NONPROFESSIONAL EMPLOYEES OF THE FRA, EXCLUDING THE EMPLOYEES OF THE
ALASKA RAILROAD. AFGE LOCAL 1968 REPRESENTS THE EMPLOYEES OF THE SLSDC,
WHICH HAS ITS HEADQUARTERS IN MASSENA, NEW YORK. WHILE THERE ARE
SCATTERED REPRESENTED UNITS OF FIELD EMPLOYEES OF THE FHWA, NONE OF ITS
HEADQUARTERS EMPLOYEES ARE REPRESENTED.
THE PETITIONS TO CLARIFY UNITS
THE RECORD INDICATES THAT THE PETITIONER WAS CERTIFIED AS THE
EXCLUSIVE REPRESENTATIVE OF A UNIT OF GENERAL SCHEDULE AND WAGE GRADE
EMPLOYEES, OST HEADQUARTERS, WASHINGTON, D.C., IN 1971 AND FOR A UNIT OF
PROFESSIONAL EMPLOYEES OF THE SAME ACTIVITY IN 1974. THE PARTIES SIGNED
A NEGOTIATED AGREEMENT COVERING THE EMPLOYEES IN THE NONPROFESSIONAL
UNIT, DATED FEBRUARY 27, 1974, WHICH IS PRESUMABLY STILL IN EFFECT. IN
1975, DOT CREATED THE MATERIAL TRANSPORTATION BUREAU (MTB) FROM ELEMENTS
OF OST, ASSIGNING TO IT RESPONSIBILITY FOR PIPELINE SAFETY AND HAZARDOUS
MATERIALS. MTB WAS ORGANIZATIONALLY INDEPENDENT OF THE OTHER DOT
ADMINISTRATIONS. IN 1977, IN AN EFFORT TO REMOVE ALL LINE OR OPERATING
CAPABILITIES FROM OST, RSPA WAS CREATED. MTB WAS THE CORE FOR THE NEW
RSPA, WITH OTHER RESEARCH AND DEVELOPMENT CAPABILITIES FROM OST AND
OTHER ADMINISTRATIONS ADDED ON. OTHER LINE RESPONSIBILITIES WERE
REMOVED FROM OST AND ADDED TO THE APPROPRIATE LINE ADMINISTRATIONS
WITHIN DOT. IN EXCESS OF 500 EMPLOYEES WERE TRANSFERRED FROM OST AT THE
TIME OF RSPA'S CREATION. THIS NUMBER PRESUMABLY INCLUDES MTB EMPLOYEES
WHO BECAME PART OF RSPA. IN ANY EVENT, THE VAST MAJORITY OF THESE
EMPLOYEES WERE REASSIGNED TO RSPA, WITH THE REMAINDER GOING TO THE OTHER
LINE ADMINISTRATIONS.
RSPA IS AN INDEPENDENT LINE ADMINISTRATION OF THE DOT, WITH FULL
RESPONSIBILITY FOR ITS OWN OPERATIONS, INCLUDING PERSONNEL AND LABOR
RELATIONS MATTERS. WHILE RSPA EMPLOYEES ARE STILL SERVICED BY THE OST
PERSONNEL OFFICE, THE FINAL DECISIONS REGARDING RSPA EMPLOYEES LIE WITH
WITH RSPA MANAGEMENT AND THERE ARE TWO RSPA EMPLOYEES ASSIGNED TO THE
OST PERSONNEL OFFICE TO SERVICE ITS EMPLOYEES. THE EVIDENCE INDICATES
NO GREATER DEGREE OF INTERCHANGE AND PROFESSIONAL INTERACTION OCCURS
BETWEEN OST AND RSPA EMPLOYEES THAN OCCURS BETWEEN RSPA EMPLOYEES AND
THOSE OF ANY OF THE OTHER DOT ADMINISTRATIONS.
UNDER THE FOREGOING CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT THE
RSPA EMPLOYEES ARE NO LONGER PART OF THE EXCLUSIVE UNITS OF OST
EMPLOYEES REPRESENTED BY THE PETITIONER. IN REACHING ITS CONCLUSIONS,
THE AUTHORITY IS COGNIZANT OF THE FACT THAT THE RSPA IS A SEPARATE
ADMINISTRATIVE ARM OF THE DOT, WITH INDEPENDENT AUTHORITY WITH RESPECT
TO SUCH MATTERS AS PERSONNEL AND LABOR RELATIONS POLICIES, THAT THERE IS
A LIMITED AMOUNT OF INTERCHANGE BETWEEN RSPA AND OST EMPLOYEES, THAT THE
EMPLOYEES REPORT TO DIFFERENT SUPERVISORY HIERARCHIES, AND THAT THE ONLY
APPROPRIATE LOCUS OF AUTHORITY FOR DEALING WITH A COMBINED RSPA/OST UNIT
WOULD BE THE SECRETARY, DOT. IN THE VIEW OF THE AUTHORITY, BASED ON THE
FACTORS OUTLINED ABOVE, THERE IS INSUFFICIENT EVIDENCE OF COMMUNITY OF
INTEREST BETWEEN THE EMPLOYEES OF THE RSPA AND THE OST TO MEET THE
CRITERIA ESTABLISHED BY SECTION 7112(A)(1) OF THE STATUTE. MOREOVER,
INASMUCH AS DOT'S OPERATIONS WOULD BE UNNECESSARILY HAMPERED BY
CIRCUMSTANCES IN WHICH TWO SEPARATE ADMINISTRATIONS OF THE DOT WOULD BE
REQUIRED TO JOINTLY ADMINISTER THEIR LABOR-MANAGEMENT RELATIONSHIP WITH
A SINGLE EXCLUSIVE REPRESENTATIVE, THE AUTHORITY FURTHER FINDS THAT THE
UNIT AS PROPOSED TO BE CLARIFIED WOULD NOT PROMOTE EFFECTIVE DEALINGS OR
THE EFFICIENCY OF THE AGENCY'S OPERATIONS.
THE CONSOLIDATION PETITION
SECTION 7112(A)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART, THAT
THE AUTHORITY SHALL DETERMINE ANY UNIT TO BE APPROPRIATE 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. THAT
IS, ANY UNIT DETERMINED TO BE APPROPRIATE MUST MEET THE CRITERIA OF
COMMUNITY OF INTEREST AMONG THE EMPLOYEES INVOLVED AND THE PROMOTION OF
EFFECTIVE DEALINGS AND EFFICIENCY OF THE OPERATIONS OF THE AGENCY
INVOLVED.
SECTION 7112(D) OF THE STATUTE PROVIDES THAT:
TWO OR MORE UNITS WHICH ARE IN ANY AGENCY AND FOR WHICH A LABOR
ORGANIZATION IS THE
EXCLUSIVE REPRESENTATIVE MAY, UPON PETITION BY THE AGENCY OR LABOR
ORGANIZATION, BE
CONSOLIDATED WITH OR WITHOUT AN ELECTION INTO A SINGLE LARGER UNIT IF
THE AUTHORITY CONSIDERS
THE LARGER UNIT TO BE APPROPRIATE. THE AUTHORITY SHALL CERTIFY THE
LABOR ORGANIZATION AS THE
EXCLUSIVE REPRESENTATIVE OF THE NEW LARGER UNIT.
THE LEGISLATIVE HISTORY OF THE STATUTE INCLUDES A STATEMENT BY
CONGRESSMAN UDALL INDICATING THAT SECTION 7112(D) OF THE STATUTE "SHOULD
BETTER FACILITATE THE CONSOLIDATION OF SMALL UNITS." /3/
IN THE AUTHORITY'S VIEW, GIVEN THE FACT THAT THE CONSOLIDATION
PROCEDURE IS ESTABLISHED WITHIN THE CONTEXT OF SECTION 7112 OF THE
STATUTE, THE AUTHORITY, IN DETERMINING THE APPROPRIATENESS OF A PROPOSED
CONSOLIDATED UNIT, MUST BE GUIDED BY THE THREE CRITERIA FOR
APPROPRIATENESS ESTABLISHED IN SECTION 7112(A)(1) WHICH WOULD BE APPLIED
TO ANY OTHER UNIT DETERMINATION UNDER SECTION 7112(A)(1) WHICH WOULD BE
APPLIED TO ANY OTHER UNIT DETERMINATION UNDER SECTION 7112 -- A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE EMPLOYEES IN THE UNIT
PROPOSED, THE PROMOTION OF EFFECTIVE DEALINGS WITH, AND THE EFFICIENCY
OF THE OPERATIONS OF THE AGENCY INVOLVED. THUS, THE STATUTE CONTAINS A
PROVISION INTENDED TO FACILITATE CONSOLIDATION OF EXISTING SMALL UNITS
INTO MORE COMPREHENSIVE ONES, PROVIDED THAT THE PROPOSED CONSOLIDATED
UNIT IS APPROPRIATE UNDER THE CRITERIA OF 7112(A)(1).
TURNING TO THE APPLICATION OF THE APPROPRIATE UNIT CRITERIA TO THE
FACTS OF THE INSTANT CASE, THE AUTHORITY NOTES AT THE OUTSET THAT THE
PROPOSED CONSOLIDATED UNIT IS PRIMARILY COMPOSED OF EMPLOYEES IN THE
HEADQUARTERS, DOT, BUT IT WOULD ADDITIONALLY INCLUDE A SMALL NUMBER OF
FIELD EMPLOYEES OF THE NHTSA REPRESENTED BY THE AFGE NATIONAL. HOWEVER,
THE PROPOSED UNIT WOULD INCLUDE NO OTHER FIELD EMPLOYEES REPRESENTED BY
THE AFGE. IN THE CIRCUMSTANCES OF THIS CASE, THE AUTHORITY FINDS THAT A
CONSOLIDATED UNIT COMPOSED OF THE HEADQUARTERS EMPLOYEES ALONG WITH THE
FIELD EMPLOYEES SOUGHT BY THE PETITIONER WOULD NOT MEET THE APPROPRIATE
UNIT CRITERIA OF THE STATUTE. FIRST, WITH RESPECT TO COMMUNITY OF
INTEREST, AS NOTED ABOVE, THE CONSOLIDATED UNIT PETITIONED FOR HEREIN
WOULD INCLUDE THE EMPLOYEES EMPLOYED BY CERTAIN ADMINISTRATIONS WITHIN
THE HEADQUARTERS OF DOT WHO ARE REPRESENTED BY THE PETITIONER AND THE
AFGE NATIONAL, AS WELL AS ALL OF THE NONPROFESSIONAL FIELD EMPLOYEES OF
ONE OF THESE ADMINISTRATIONS, THE NHTSA, WHO ARE REPRESENTED BY THE AFGE
NATIONAL AS PART OF A NATIONWIDE UNIT OF NONPROFESSIONAL NHTSA
EMPLOYEES. WHILE SOME 2,600 EMPLOYEES COVERED BY THE PETITION ARE
EMPLOYED WITHIN THE HEADQUARTERS OF THE DOT, THERE ARE ONLY SOME 70
FIELD EMPLOYEES OF THE DOT WHO WOULD BE INCLUDED IN THE PROPOSED UNIT.
THE PROPOSED UNIT WOULD ONLY INCLUDE THE FIELD EMPLOYEES OF ONE OF THE
FOUR /4/ DOT ADMINISTRATIONS WHOSE HEADQUARTERS EMPLOYEES WOULD BE
INCLUDED. MOREOVER, THERE ARE 4,600 FIELD EMPLOYEES OF THE OTHER
ADMINISTRATIONS INVOLVED IN THE PETITION WHO ARE CURRENTLY REPRESENTED
IN EXCLUSIVE UNITS BUT WHO WOULD NOT BE INCLUDED IN THE PROPOSED UNIT.
THESE EMPLOYEES ARE REPRESENTED IN SOME 33 EXCLUSIVE BARGAINING UNITS,
WITH THE AFGE OR ONE OF ITS AFFILIATES BEING THE EXCLUSIVE
REPRESENTATIVE FOR 15 OF THESE UNITS. GIVEN THESE FACTS, THE AUTHORITY
FINDS THAT THE PETITIONED FOR CONSOLIDATED UNIT, WHICH WOULD INCLUDE
ONLY A RELATIVELY SMALL PORTION OF THE FIELD EMPLOYEES OF THE DOT WITH
THE MUCH LARGER NUMBER OF NATIONAL OFFICE EMPLOYEES, WOULD NOT ENSURE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE EMPLOYEES
INVOLVED. NOR WOULD THE PETITIONED FOR UNIT INCLUDE OTHER FIELD
EMPLOYEES WITH WHOM THE INCLUDED FIELD EMPLOYEES SHARE COMMON INTERESTS.
FURTHER, THE AUTHORITY FINDS THAT THE FIELD EMPLOYEES OF THE NHTSA ARE
GEOGRAPHICALLY AND ORGANIZATIONALLY SEPARATE FROM THE VAST MAJORITY OF
HEADQUARTERS, DOT EMPLOYEES WITH WHOM THEY WOULD BE INCLUDED IN THE
PROPOSED UNIT.
SIMILARLY, THE AUTHORITY FINDS THAT IT WOULD NOT PROMOTE EFFECTIVE
DEALINGS TO REQUIRE DOT MANAGEMENT TO NEGOTIATE CONCERNING THE INTERESTS
OF SUCH A SMALL NUMBER OF FIELD EMPLOYEES IN THE CONTEXT OF NEGOTIATIONS
FOR WHAT WOULD BE ESSENTIALLY A UNIT OF HEADQUARTERS EMPLOYEES, NOR
WOULD EFFECTIVE DEALINGS BE PROMOTED IF DOT MANAGEMENT WERE TO BE
REQUIRED TO NEGOTIATE AN AGENCY-WIDE AGREEMENT WITH AN EXCLUSIVE
REPRESENTATIVE WHO WOULD BE REPRESENTING SUCH A SMALL SEGMENT OF ITS
FIELD EMPLOYEES. FURTHERMORE, THE EFFICIENCY OF THE AGENCY'S OPERATIONS
WOULD NOT BE PROMOTED WERE IT REQUIRED TO NEGOTIATE WITH AN EXCLUSIVE
REPRESENTATIVE IN A UNIT THAT WAS NOT REASONABLY RELATED TO ITS
ORGANIZATIONAL STRUCTURE AS ONLY A SMALL NUMBER OF FIELD EMPLOYEES AND
THE HEADQUARTERS EMPLOYEES IN ONLY FOUR OF DOT'S NINE ADMINISTRATIONS
WOULD BE INCLUDED THEREIN. THEREFORE, THE AUTHORITY CONCLUDES THAT THE
PROPOSED CONSOLIDATED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS WITH,
AND THE EFFICIENCY OF THE OPERATIONS OF, THE DOT. GIVEN THESE
CONCLUSIONS, THE AUTHORITY FINDS THE PETITIONED FOR CONSOLIDATED UNIT IS
NOT APPROPRIATE.
HOWEVER, NOTING THAT THE PROPOSED CONSOLIDATED UNIT WOULD PRIMARILY
CONSIST OF DOT HEADQUARTERS PERSONNEL, THE AUTHORITY, IN THE
ALTERNATIVE, CONSIDERED WHETHER A CONSOLIDATED UNIT CONSISTING ONLY OF
THE HEADQUARTERS EMPLOYEES WHO ARE REPRESENTED BY THE PETITIONER
EXCLUSIVELY IN THREE OF DOT'S NINE ADMINISTRATIONS -- THE OST, COAST
GUARD, AND UMTA -- WOULD CONSTITUTE AN APPROPRIATE UNIT FOR THE PURPOSE
OF CONSOLIDATION, /5/ THAT IS, WHETHER SUCH A UNIT SATISFIES THE THREE
CRITERIA ESTABLISHED BY SECTION 7112(A). WITH REGARD TO COMMUNITY OF
INTEREST OF THE EMPLOYEES INVOLVED, THE FACTS REVEAL THAT THE
ALTERNATIVE UNIT WOULD BE LIMITED TO THE HEADQUARTERS EMPLOYEES OF THREE
OF THE NINE OPERATING ELEMENTS WHICH CONSTITUTE DOT HEADQUARTERS AND
THAT SUCH UNIT WOULD CONSIST OF APPROXIMATELY 2,700 OF THE 7,700
HEADQUARTERS EMPLOYEES. AS WITH THE PROPOSED MIXED HEADQUARTERS/FIELD
HEADQUARTERS EMPLOYEES. AS WITH THE PROPOSED MIXED HEADQUARTERS/FIELD
UNIT DISCUSSED ABOVE, THE ALTERNATIVE UNIT WOULD EXCLUDE SUCH A
SIGNIFICANT PROPORTION OF THE HEADQUARTERS EMPLOYEES WITH WHOM THEY
SHARE COMMON INTERESTS THAT THE RESULTING UNIT WOULD NOT ENSURE A
SEPARATE AND DISTINCT COMMUNITY OF INTEREST. IN THIS REGARD, THE
AUTHORITY CONCLUDES THAT THE EMPLOYEES WHO WOULD BE INCLUDED IN THE
PROPOSED UNIT ARE NOT SUFFICIENTLY WELL DISTRIBUTED THROUGHOUT THE
ORGANIZATIONAL ELEMENTS WHICH MAKE UP THE HEADQUARTERS, DOT SO AS TO
CONSTITUTE A MEANINGFUL CONSOLIDATED UNIT OF ALL HEADQUARTERS, DOT
EMPLOYEES WHO ARE REPRESENTED BY THE PETITIONER. THUS, AS NOTED ABOVE,
EMPLOYEES FROM EACH OF DOT HEADQUARTER'S MAJOR ORGANIZATIONAL
COMPONENTS
WOULD NOT BE REPRESENTED IN THE PROPOSED UNIT.
ALTHOUGH THE AUTHORITY WAS COGNIZANT OF THE FACT THAT THERE IS SOME
INTERCHANGE AMONG THE EMPLOYEES OF THE SEPARATE ADMINISTRATIONS WITHIN
DOT, THAT THERE ARE SOME COMMON JOB CLASSIFICATIONS AND WORKING
CONDITIONS SHARED BY THESE EMPLOYEES, AND THAT THE PERSONNEL AND LABOR
RELATIONS OF THE ADMINISTRATIONS WHICH MAKE UP DOT ARE SUBJECT TO
CERTAIN COMMON REGULATIONS, ON BALANCE, IN THE PARTICULAR CIRCUMSTANCES
OF THIS CASE, THE AUTHORITY CONCLUDES THAT THERE IS AN INSUFFICIENT
COMMUNITY OF INTEREST AMONG THE EMPLOYEES AT THE HEADQUARTERS LEVEL TO
COMMUNITY OF INTEREST AMONG THE EMPLOYEES AT THE HEADQUARTERS LEVEL TO
MEET THE CRITERIA FOR AN APPROPRIATE UNIT. IN REACHING ITS CONCLUSION
THE AUTHORITY NOTED AND CONSIDERED THE FACT THAT THE PREPONDERANCE OF
DECISIONS IN SUCH AREAS OF CONCERN TO UNIT PERSONNEL AS HIRING, FIRING,
PROMOTIONS, TRANSFERS, PRIMARY AREAS OF CONSIDERATION FOR PROMOTIONS AND
REDUCTIONS IN FORCE, THE MAINTENANCE OF PERSONNEL RECORDS, GRIEVANCE
HANDLING, AND CONTRACT NEGOTIATION AND ADMINISTRATION, ARE MADE WITHIN
EACH PARTICULAR ADMINISTRATION OF DOT. FURTHER, THE AUTHORITY NOTES
THAT EACH OF THE THREE ADMINISTRATIONS WHOSE EMPLOYEES WOULD BE INCLUDED
IN SUCH A PROPOSED CONSOLIDATED UNIT HAS AT BOTH HEADQUARTERS AND FIELD
LEVELS A UNIQUE AND SEPARATE MANAGEMENT STRUCTURE WHICH REPORTS DIRECTLY
TO THE SECRETARY, DOT. MOREOVER, DUE IN PART TO THE HIGH TURNOVER RATE
OF MILITARY SUPERVISORS WITHIN THE COAST GUARD, MANY EMPLOYEES THEREIN
DO NOT HAVE A CONTINUITY OF SUPERVISORY AUTHORITY WHICH WOULD BE
COMMONLY FOUND IN THE OTHER ADMINISTRATIONS OF DOT.
WITH RESPECT TO THE OTHER TWO CRITERIA ESTABLISHED BY SECTION
7112(A)(1) OF THE STATUTE, THE AUTHORITY FIRST FINDS THAT IT WOULD NOT
PROMOTE EFFECTIVE DEALINGS TO REQUIRE DOT MANAGEMENT TO NEGOTIATE
CONCERNING THE INTERESTS OF ALL ITS HEADQUARTERS EMPLOYEES WITH AN
EXCLUSIVE REPRESENTATIVE WHOSE UNIT IS LIMITED TO EMPLOYEES IN ONLY
THREE OF THE NINE OPERATING ELEMENTS WITHIN DOT HEADQUARTERS.
FURTHERMORE, THE AUTHORITY NOTES THAT PRIMARY ADMINISTRATIVE AND
PERSONNEL AUTHORITY LIES WITH THE CHIEF OPERATING OFFICER OF EACH OF
DOT'S INDEPENDENT ADMINISTRATIONS AND NOT WITH DOT'S OFFICE OF PERSONNEL
AND TRAINING. THUS, PRIMARY DECISION MAKING IN PERSONNEL AND LABOR
RELATIONS MATTERS TAKES PLACE WITHIN EACH ADMINISTRATION OF DOT.
ADDITIONALLY, THERE HAVE BEEN EFFECTIVE COLLECTIVE BARGAINING
RELATIONSHIPS DEVELOPED BETWEEN THE PETITIONER HEREIN AND EACH OF THE
ADMINISTRATIONS WHOSE EMPLOYEES WOULD BE CONSOLIDATED AND THE PARTIES'
NEGOTIATED AGREEMENTS REFLECT, IN PART, THE FACT THAT THERE ARE
DIFFERENCES BETWEEN EACH OF DOT'S ADMINISTRATIONS. BASED ON THE ABOVE,
THE AUTHORITY CONCLUDES THAT EFFECTIVE DEALINGS WITH THE AGENCY, AND THE
EFFICIENCY OF AGENCY OPERATIONS, WOULD NOT BE PROMOTED BY THE
ALTERNATIVE CONSOLIDATED UNIT CONSIDERED. ACCORDINGLY, THE AUTHORITY
FINDS THAT AN ALTERNATIVE CONSOLIDATED UNIT OF ALL DOT HEADQUARTERS
PERSONNEL REPRESENTED BY THE PETITIONER IS NOT APPROPRIATE.
ORDER
IT IS HEREBY ORDERED THAT THE PETITIONS IN CASE NOS. 3-UC-3, 3-CU-8
AND 3-CU-9 BE, AND THEY HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C., MAY 22, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER, III, MEMBER
LEON B. APPLEWHAITE, MEMBER
--------------- FOOTNOTES$ ---------------
/1/ SEE APPENDIX FOR ORGANIZATION CHART OF DOT.
/2/ SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR
ORGANIZATION REPRESENTATION
(A)(1) THE AUTHORITY SHALL DETERMINE THE APPROPRIATENESS OF ANY UNIT.
THE AUTHORITY SHALL DETERMINE IN EACH CASE WHETHER, IN ORDER TO ENSURE
EMPLOYEES THE FULLEST FREEDOM IN EXERCISING THE RIGHTS GUARANTEED UNDER
THIS CHAPTER, THE APPROPRIATE UNIT SHOULD BE ESTABLISHED ON AN AGENCY,
PLANT, INSTALLATION, FUNCTIONAL, OR OTHER BASIS AND 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.
/3/ 124 CONG. REC. H 9634(1978).
/4/ IN VIEW OF THE AUTHORITY'S FINDING ABOVE THAT THE EMPLOYEES OF
THE RSPA ARE NOT REPRESENTED BY THE PETITIONER, THE PROPOSED UNIT WOULD
INCLUDE THE EMPLOYEES OF FOUR DOT ADMINISTRATIONS.
/5/ THE ALTERNATIVE WOULD CONSIST OF THE EMPLOYEES IN ONLY THESE
THREE ADMINISTRATIONS AS (1) THE AUTHORITY FOUND ABOVE THAT THE
EMPLOYEES OF THE RSPA ARE NOT REPRESENTED BY THE PETITIONER, AND (2)
SUCH A UNIT WOULD NOT FACE THE DIFFICULTIES PRESENTED BY INCLUDING A
MIXED UNIT OF FIELD AND HEADQUARTERS OFFICE EMPLOYEES IN A CONSOLIDATED
UNIT CONSISTING PRIMARILY OF HEADQUARTERS EMPLOYEES WHICH WAS THE BASIS
OF THE AUTHORITY'S ABOVE CONCLUSION THAT THE PROPOSED UNIT WAS
INAPPROPRIATE. THE ALTERNATIVE UNIT WOULD CONSIST ONLY OF THOSE
EMPLOYEES REPRESENTED BY THE PETITIONER IN UNITS LIMITED TO HEADQUARTERS
EMPLOYEES.