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53 FLRA No. 3

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEFENSE LOGISTICS AGENCY

DEFENSE SUPPLY CENTER COLUMBUS

COLUMBUS, OHIO

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

(Petitioner)

and

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS, AFL-CIO

(Intervenor)

WA-RP-60071

_____

ORDER GRANTING AN APPLICATION FOR REVIEW

AND DENYING A REQUEST FOR A STAY

June 6, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, 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 (AFGE), under section 2422.31(c) of the Authority's Regulations.⁽¹⁾ AFGE also requests a stay of the Regional Director's (RD's) decision. The International Federation of Professional and Technical Engineers, AFL-CIO (IFPTE) filed an opposition to the application for review and the request for a stay.

For the reasons set forth below, we grant AFGE's application for review and deny its request for a stay of the RD's decision.

II. Background and RD's Decision

As discussed in more detail below, AFGE requests review of the RD's Decision and Order dismissing AFGE's petition seeking to include in its nationwide consolidated unit all nonsupervisory, nonprofessional employees, including employees in two job series (GS-1670 equipment specialists and GS-1910 quality assurance specialists) who encumber positions that are excluded from the AFGE unit at the Defense Logistics Agency (DLA), Defense Supply Center Columbus, Columbus, Ohio (Activity) and included in a unit represented by another labor organization.

AFGE is the exclusive representative of a nationwide, consolidated unit at DLA consisting of approximately 31,000 employees. Included in the consolidated unit were approximately 2,110 employees at the Activity, the mission of which is to supply materiel management support to military departments and other Department of Defense (DOD) components. The portion of the nationwide unit encompassing employees at the Activity excluded employees in the two aforementioned job series, (hereinafter "the two job series")⁽²⁾ who have been represented in a separate unit since 1968 by the IFPTE.⁽³⁾ Prior to 1994, employees in the two job series did not work together with employees in other disciplines on interdisciplinary teams. In 1994, a reorganization occurred at the Activity, which resulted in the creation of interdisciplinary teams and, since that time, employees in the two job series have worked, and been co-located, with employees from other disciplines.

Also in 1994, a unit of approximately 1600 employees at Dayton Supply Center, Dayton, Ohio (Dayton Supply Center), which included employees in the two job series, was certified for inclusion in AFGE's nationwide, consolidated unit.⁽⁴⁾ Effective June 1996, Dayton Supply Center was disestablished and certain of its workload was transferred to the Activity. Dayton Supply Center management identified positions that would be needed at the Activity to accomplish the work that was transferred to the the Activity. Dayton Supply Center employees were registered in the DOD Priority Placement Program (PPP) and received job offers in the Activity under that placement program.⁽⁵⁾ During the summer of 1996, 970 Dayton Supply Center employees accepted jobs at the Activity and reported for duty there; 212 of those employees are in the two job series. The former Dayton Supply Center employees were placed in newly created positions within the Activity based on their qualifications, as determined by their DOD PPP registration status.

In October 1996, AFGE filed the petition in this case, seeking to clarify its consolidated bargaining unit at the Activity to include all employees in the two job series, including the 212 former Dayton Supply Center employees and the 198 employees represented by IFPTE.⁽⁶⁾ According to AFGE, the 1994 reorganization at the Activity eliminated the separate community of interest previously shared by employees in that unit and resulted in an accretion of those employees into the nationwide, consolidated unit. AFGE contends that since 1994 only one unit covering these employees has existed at the Activity and that, as a result, all employees placed in Activity positions after the subsequent disestablishment of the Dayton Supply Center are appropriately included in that unit. The parties did not contest the status of the remaining former Dayton Supply Center employees as part of the AFGE consolidated unit.⁽⁷⁾

The record indicates that the Activity has continued to adhere, during the pendency of this proceeding, to the terms of the collective bargaining agreement that covered the former Dayton Supply Center employees in the two job series when they were employed at Dayton Supply Center. See Tr. at 316, Activity's Post-Hearing Brief at 7, and Intervenor's Opposition at 11.

The RD concluded that the IFPTE unit is an appropriate unit, consistent with section 7112(a) of the Statute. The RD noted that the IFPTE unit has a history of stable labor-management relations and is covered by an agreement. The RD also stated that the Activity and IFPTE agree that the IFPTE unit is an appropriate unit.

The RD also concluded that former Dayton Supply Center employees in the two job series are properly included in the IFPTE unit. The RD reasoned that those employees "are no different than a group of new hires in these categories who by operation of IFPTE's unit description are included in the unit from the beginning of their employment." RD's decision at 6 n.4. The RD cited U.S. Department of the Air Force, Carswell Air Force Base, Texas, 40 FLRA 221 (1991); U.S. Department of Commerce, Natural Oceanic and Atmospheric Administration, National Marine Fisheries Service, Northeast Region, 24 FLRA 922 (1986) and U.S. Department of Agriculture, United States Forest Service, Angeles National Forest, Pasadena, California, 4 A/SLMR 58 (1974).

The RD rejected AFGE's contention that after the 1994 reorganization all of the employees in the two job series at the Activity accreted to the AFGE consolidated unit. Citing U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, Allen Park, Michigan, 43 FLRA 264 (1991), the RD noted that a petitioner who seeks to include employees who originally were excluded from a unit must provide evidence that there were meaningful changes in the duties and functions of such employees after the unit was recognized or certified. The RD found that employees in the two job series were expressly excluded from AFGE's unit description. The RD further found that while the 1994 reorganization had affected the Activity's organizational structure, it had little effect on the employees' duties, functions or job circumstances.

Finally, the RD rejected AFGE's alternative contention that the Activity is a successor employer to Dayton Supply Center and that, therefore, AFGE retained its status as the exclusive representative of the former Dayton Supply Center employees in the two job series. Citing United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950 (1997) (FISC), the RD stated that the Authority has held that "for successorship purposes, it must initially be shown that the transferred employees are included in, and represent a majority of the employees, in a separate appropriate unit in the new employing entity." RD's decision at 6. Examining the total complement of former Dayton Supply Center employees who had relocated to the Activity, the RD concluded that, based on the evidence before him, they do not constitute a "separate appropriate unit" at the Activity because they do not share a community of interest separate and apart from the employees in the IFPTE and AFGE units. Id.

Based on the foregoing, the RD dismissed the petition.

III. Application for Review and Request for a Stay

AFGE contends, for the following reasons, that review of the RD's decision is warranted, under section 2422.31(c) of the Authority's Regulations, because it departs from Authority precedent.

Specifically, AFGE contends that the RD erred in determining that the IFPTE unit remained appropriate after the 1994 reorganization. AFGE claims that the RD relied only on "IFPTE's long history at Columbus and IFPTE['s] assertion that the unit is appropriate." Application for Review at 11. AFGE asserts that the IFPTE unit is not appropriate because the employees in job series GS-1670 and GS-1910 share a clear and identifiable community of interest with the employees in AFGE's consolidated unit at the Activity. AFGE adds that having two separate units at the Activity does not provide for effective dealings with, and efficiency of operations of, the Activity. Additionally, AFGE states that the employees in the IFPTE unit "should have been accreted into AFGE's bargaining unit." Id. at 19 (underscoring deleted).

AFGE also contends that the RD's determination that the former Dayton Supply Center employees in the two job series are properly included in the IFPTE unit is contrary to Authority precedent concerning accretion and severance. AFGE argues that the RD improperly found that a numerically superior group of 212 former Dayton Supply Center employees had accreted to the IFPTE unit of 198 members. Additionally, AFGE claims that, by accreting the former Dayton Supply Center employees to the IFPTE unit, the RD in effect improperly severed those employees from the AFGE consolidated unit.

Finally, AFGE contends that the RD's determination that the Activity is not a successor employer to the Dayton Supply Center is based on the RD's misapplication of the principles concerning successorship set forth in FISC and Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme). AFGE argues that the RD failed to apply the successorship principles to a unit comprised of all employees in job series GS-1670 and GS-1910.

AFGE requests a stay of the RD's decision during the pendency of this proceeding on the ground that to allow the decision to stand during that period would cause AFGE irreparable harm. AFGE asserts that it will lose thousands of dollars in dues and "employees will lose AFGE-only benefits such as dental insurance." Application for Review at 1. AFGE adds that if the Authority, upon review of the RD's decision, should direct an election, it would be at a disadvantage because "IFPTE will have had access . . . as the incumbent union[]" to former Dayton Supply Center employees in job series GS-1670 and GS-1910. Id.

IV. Opposition

IFPTE asserts that, consistent with Authority precedent, the RD correctly found that there were no grounds for accretion or successorship. IFPTE maintains that "any accretion issue raised by the 1994 reorganization should have been raised at that time if at all." Intervenor's Opposition at 10 n.1.

IFPTE asserts that AFGE's request for a stay should be denied. In this regard, IFPTE argues that there is no action to stay because the RD dismissed a petition by AFGE to represent employees in a job series historically represented by IFPTE, citing U.S. Department of Health and Human Services, Administration for Children and Families, Washington, D.C., 46 FLRA 1115, 1117 n.6. (1993) (Children and Families).

V. Analysis and Conclusions

A. The Request for a Stay

We find no basis on which to stay the RD's decision. Under section 2422.31(f) of the Authority's Regulations, there must be "action ordered by the Regional Director" before the Authority can exercise its authority to grant a stay. In this regard, the RD's decision ordered no affirmative action. Rather, the RD simply dismissed the petition, which "neither effected nor required any action which could be stayed." Children and Families, 46 FLRA at 1117 n.6. Accordingly, we deny AFGE's request.

We note that the petition remains pending until the RD's decision "becomes the action of the Authority," as provided in section 2422.31(e) of the Authority's Regulations, or the Authority grants the application for review and issues its own decision. In the interim, we expect that the parties will comply with their obligations under section 2422.34(a) of the Authority's Regulations. In this regard, the record indicates that the Activity has continued to adhere, during the pendency of this proceeding, to the terms of the collective bargaining agreement that covered the former Dayton Supply Center employees in the two job series when they were employed at Dayton Supply Center. See Tr. at 316, Activity's Post-Hearing Brief at 7, and Intervenor's Opposition at 11.

B. The Application for Review

We conclude, for the reasons that follow, that review of the RD's decision is warranted under section 2422.31(c)(3) of the Authority's Regulations. Specifically, the application is granted because there are genuine issues with respect to whether the RD correctly applied principles relating to appropriateness of units, successorship and accretion in determining the representational status of employees in the two job series, who are expressly excluded from coverage in AFGE's unit at the Activity and included within the IFPTE unit. In granting the application, it appears that there is an absence of precedent that applies where a union seeks to continue to represent a group of employees who have been geographically relocated to an activity where the positions they encumber are specifically excluded from the unit represented by that union and included in the description of a unit represented by another union.

1. Appropriateness of Unit Criteria

Section 7112(a) of the Statute sets forth the criteria for determining the appropriateness of a bargaining unit. The Authority may determine that a unit is appropriate only if the determination will: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with the agency involved; and (3) promote efficiency of the operations of the agency involved. FISC, 52 FLRA at 959.

In this case, the RD's determination that the IFPTE unit meets the criteria of section 7112(a) was based only on his findings that the IFPTE unit "is a well-established functional unit" and has "a history of stable labor-management relations." RD's decision at 5. The RD did not make findings with regard to each of the criteria. We are unable to determine, from the findings that were made, whether the RD correctly determined that the unit is appropriate under section 7112(a) of the Statute. We will decide on review whether the record is sufficient for the Authority to make this determination. In addition, the RD did not address IFPTE's contention that AFGE did not timely raise the effect of the 1994 reorganization on the appropriate unit issue.

2. Successorship Factors

The Authority has established three factors to determine whether, following a reorganization, a new employing entity is the successor to a previous one such that a secret ballot election is not necessary to determine the representation rights of employees who were transferred to the successor. A gaining entity is a successor, and a union retains its status as the exclusive representative of employees who are transferred to the successor, when:

(1) An entire recognized unit, or a portion thereof, is transferred and the transferred employees: (a) are in a separate appropriate bargaining unit, under section 7112(a) of the Statute, after the transfer; and (b) constitute a majority of the employees in such unit;

(2) The 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) It has not been demonstrated that an election is necessary to determine representation.

FISC, 52 FLRA at 957-58; Port Hueneme, 50 FLRA at 368.

Assuming that successorship principles apply in this case, we conclude that there are genuine issues as to whether the RD erred in applying those principles. For example, in determining that the Activity was not a successor employer to the Dayton Supply Center, the RD did not, as required by the first factor, examine whether the former Dayton Supply Center employees in the two job series are included in a separate appropriate unit at the Activity and, if so, whether they constitute a majority of the employees in that unit. Nor did the RD examine the other two factors. The RD determined only that the entire complement of former Dayton Supply Center employees did not constitute a "separate appropriate unit" in the Activity. See RD's decision at 6.

3. Accretion Criteria

The Authority decides issues concerning the accretion of employees to an existing bargaining unit by applying the same criteria for determining the appropriateness of a bargaining unit set forth in section 7112(a) of the Statute. U.S. Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245, 1254 (1992). As discussed above, the RD did not make findings with regard to all of these criteria. In addition, where a petition seeks to include employees who are specifically excluded from a unit, the petitioner must show that meaningful changes have occurred in the employees' duties, functions or job circumstances after the unit certification to warrant including them in the unit. See Federal Trade Commission, 35 FLRA 576, 583-84 (1990). Although the RD applied this latter principle in concluding that the employees in the two job series had not accreted to the AFGE unit, we conclude that there is a genuine issue as to whether the RD properly evaluated the asserted changes in the employees' job circumstances.

Further, in determining that the Dayton Supply Center employees were properly included in the IFPTE unit, the RD concluded, without explanation, that they were comparable to new hires. See RD's decision at 6 n.4. AFGE specifically disputes this finding and the Activity maintains that the "personnel action effecting the movement of former [Dayton Supply Center] employees to [the Activity] was [a] reassignment followed by a change in duty station, not a transfer." Activity's Post-Hearing Brief at 11.⁽⁸⁾

Consistent with the foregoing, we grant AFGE's application for review of the RD's Decision and Order and we direct the parties to address the following questions:

1. How, if at all, should successorship and accretion principles be applied to determine the representational status of employees who have been geographically relocated from a facility with one bargaining unit to a facility with two bargaining units, both of which are alleged to include the relocated employees?

a. Does the fact that the positions encumbered by the employees are specifically excluded from one of the bargaining units in the gaining facility and specifically included in the other bargaining unit affect the application of these principles? If so, how?

b. Does the fact that, before their reassignment, the employees were represented in the same consolidated unit that specifically excludes their positions at the gaining facility affect the application of these principles? If so, how? Do "severance" principles apply to this situation?

c. When, if at all, is an election appropriate in such circumstances? Is this determination affected by the relative size of the employee complements?

2. Do successorship principles apply where employees are relocated under a program such as the DOD Priority Placement Program?

3. Are there practical or legal differences between a "reassignment followed by a change in duty station" and a "transfer"? If so, what are the consequences for this case?

4. Under what circumstances, if at all, should geographically relocated employees be considered comparable to newly-hired employees?

5. Has a party waived its right to raise the effects of a reorganization on the appropriateness of a unit if it did not file a petition at the time of the reorganization?

6. What other issues or factors should the Authority consider in resolving this representation petition? Is the record sufficient to determine the issues raised by this application?

In accordance with section 2422.31(g) of the Authority's Regulations, the parties are directed to file briefs on the issues set forth. Briefs will be considered if received by mail or personal delivery in the Authority's Office of Case Control by 5 p.m. on Monday, July 7, 1997. Placing submissions in the mail by this deadline will not be sufficient. Extensions of time to submit briefs will not be granted. Other interested persons may file briefs as amicus curiae on these issues within the same period.⁽⁹⁾ Briefs should be directed to:

Edward F. Bachman
Acting Director, Case Control Office
Federal Labor Relations Authority
607 14th Street, NW, Room 415
Washington, D.C. 20424-0001

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Section 2422.31 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.

2. The portion of AFGE's consolidated unit at the Activity is described as follows:

INCLUDED: All non-supervisory, non-professional employees at the Defense Construction Supply Center, Columbus, Ohio; the Defense Distribution Depot Columbus, Columbus, Ohio; and the Information Processing Center Columbus, Columbus, Ohio.

EXCLUDED: All professional employees, management officials, supervisors, Equipment Specialist (GS-1670) and Quality Assurance Specialist (GS-1900) and employees described in 5 U.S.C. § 7112(b)(2), (3), (4), (6) and (7).

RD's decision at 2.

3. The unit represented by IFPTE currently encompasses 198 employees.

4. The unit at Dayton Supply Center is described as follows:

INCLUDED: All non-supervisory, non-professional employees of the Defense Electronics Supply Center, Dayton, Ohio.

EXCLUDED: All professional employees, firefighters, management officials, supervisors, employees assigned to the Office of Installation Services, and employees described in 5 U.S.C. § 7112(b)(2), (3), (4), (6) and (7).

RD's decision at 2.

5. Initially, Dayton Supply Center offered the jobs in the Activity according to a master retention list that it had prepared. That practice was stopped and all employees were then placed under the DOD PPP.

6. The petition initially sought to accrete to the AFGE unit only the 212 former Dayton Supply Center employees. In the amended petition, AFGE describes the appropriate unit as "[a]ll non-supervisory, non-professional employees of the Defense Supply Center Columbus, Ohio." Authority's Exhibit No. 1(d) Thus, AFGE now claims that the appropriate unit includes all employees in the two job series, including those currently represented by IFPTE.

7. As the representational status of the other former Dayton Supply Center employees is not in dispute, the issues on review concern only the status of the employees in the two job series.

8. We note that the record contains copies of forms stating that those employees received a "change in duty station." Activity's Exhibit No. 12.

9. By notice to be published in the Federal Register, we will invite other interested persons to file briefs as amicus curiae on these issues.

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