[ v56 p126 ]
56 FLRA No. 14
DEPARTMENT OF THE ARMY
U.S. ARMY AVIATION MISSILE COMMAND
(AMCOM), REDSTONE ARSENAL, ALABAMA
(Activity)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858, AFL-CIO
(Petitioner-Intervenor/Labor Organization)
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 405
(Petitioner-Intervenor/Labor Organization)
_____
AT-RP-80005
AT-RP-80007
February 29, 2000
_____
DECISION AND ORDER ON REVIEW
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.
I. Statement of the Case
By order dated July 23, 1999, the Federal Labor Relations Authority (the Authority) granted an application for review of the Regional Director's Decision and Order on Clarification of Units, filed by the American Federation of Government Employees, Local 1858, AFL-CIO (AFGE Local 1858, or AFGE), Petitioner in Case No. AT-RP-80005. The Authority at the same time denied a request by AFGE Local 1858 for a stay of the election directed by the Regional Director (RD), [n1] and ordered that if an election were conducted prior to the issuance of a decision on review, the ballots be impounded. [n2]
The Authority granted review of the Regional Director's decision, under section 2422.17(c)(1) of the Authority's Regulations, because the Regional Director's decision raises a particular issue for which there is an absence of precedent. The Authority denied review on other grounds raised by the application for review.
The issue on which the Authority granted review concerns whether an election is necessary between two groups of employees, represented by different labor organizations, who have been assigned to a newly created appropriate unit where one union claims to represent a sufficiently predominant number of employees to avoid an election. The Authority directed the parties to file briefs and published a Notice in the Federal Register inviting interested parties to file briefs as amici curiae, to address the following questions:
1. Should the Authority's "successorship" and/or "accretion" doctrine be modified to apply to situations where more than one unit of employees represented by different exclusive collective bargaining representatives are transferred to (a) a new entity with a new mission or (b) a new entity with a mission that is a combination of the missions of previously existing organizations? If so, why, and what should the modification be?
2. Is a question concerning representation necessarily raised when more than one group of employees, represented by different labor organizations, are transferred to a newly established organization, and neither our current successorship doctrine nor our current accretion doctrine permits certification without an election? If not, is it consistent with the Statute and appropriate to apply the "sufficiently predominant" or some other doctrine to determine whether an election is not required?
3. If Authority doctrine is modified, what guidelines, numerical or otherwise, should the Authority use to determine whether a group represented by one labor organization is sufficiently predominant to render an election unnecessary?
64 Fed. Reg. 44,733 (1999). Both petitioners filed briefs, and the General Counsel filed an amicus brief. There were no other submissions.
For the reasons that follow, we find that the Department of the Army, U.S. Army Aviation Missile Command (AMCOM), Redstone Arsenal, Alabama, is a successor employer, and that the employees represented by AFGE Local 1858 are sufficiently predominant to render an election unnecessary. Accordingly, we clarify the units represented by AFGE Local 1858 to include former employees of the two commands who transferred to the successor employer, and we amend the certification to reflect the change in name of the activity. [n3] [ v56 p127 ]
II. Background and Regional Director's Decision
This case arose as a result of a reorganization that disestablished two commands and moved their former employees, represented by different labor organizations, into a newly created entity. Aviation Troop Command, known as ATCOM, in St. Louis, Missouri, and U.S. Army Missile Command, or MICOM, located at Redstone Arsenal, Alabama, were disestablished. Both had been activities within the Army Materiel Command (AMC). On October 1, 1997, a new entity, the Army Aviation Missile Command, or AMCOM, was established as an activity within AMC and the former ATCOM and MICOM employees were transferred to AMCOM, which is located at Redstone Arsenal, Alabama.
Prior to the reorganization, NFFE Local 405 represented an exclusive unit of professional/nonprofessional employees of the former ATCOM, in St. Louis. Of the 1,453 employees in this unit, 1,384 accepted transfer when ATCOM was disestablished and became part of the newly created AMCOM. At the same time, when MICOM was disestablished, its 4,711 unit employees stationed at Redstone Arsenal, Alabama, represented in separate professional and nonprofessional units by AFGE Local 1858, likewise became part of AMCOM. The petitions raise the issue of whether there is a question concerning representation (QCR) regarding the 1,384 former ATCOM employees represented by NFFE and the 4,711 former MICOM employees represented by AFGE, or whether an election is unnecessary and employees of both former activities who are now employed by AMCOM should be represented by AFGE.
As detailed more fully in our Order Granting Application For Review, the Regional Director found that AMCOM is "an entirely new organization[,]" RD's Order at 20, the mission of which "is a combination of ATCOM and MICOM's missions[,]" developing, maintaining, selling and supporting both aviation/troop weapons systems and missile systems. Id. at 19. The Regional Director concluded also that the employees who transferred from these commands are no longer included in separate appropriate units, and that the combined units comprise a new appropriate unit.
Regarding the effect of the reorganization on working conditions of the employees, the Regional Director described how employees now are relocated throughout AMCOM, and stated that a number of employees picked up additional and different job functions, while some did not, and that some employees received training to perform their additional duties. Some employees changed jobs altogether. Many former MICOM employees acquired aviation functions and ATCOM employees acquired missile functions. Before the reorganization, they had worked only on one of the two systems.
The Regional Director concluded that AMCOM is not a successor employer. Applying the principles of Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme), the Regional Director determined that the second prong of the three-prong test for successorship established in that case had not been satisfied, because: (1) the entity into which the employees transferred did not maintain substantially the same organizational mission as either of the losing entities, since the new mission was broader; (2) well over a third of the employees were no longer performing substantially the same duties and functions; and (3) the work environment and working conditions of many employees had changed. RD's Decision at 21-22, citing 50 FLRA at 368.
The Regional Director also decided that the former ATCOM employees did not accrete into the AFGE bargaining unit because, she stated, the test for accretion calls for the movement of employees into an already established, recognized unit. U.S. Department of Defense, Dependents Schools and Overseas Education Association, 48 FLRA 1076, 1088-89 (1993); Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245, 1254 (1992). The Regional Director found that because there was a new organization formed, there was no already established, exclusively recognized or certified unit into which the smaller unit accreted.
Finally, after finding no successorship or accretion, the Regional Director considered whether an election is necessary to determine whether NFFE, AFGE, or no union, is the preference of the former MICOM and ATCOM employees. The Regional Director noted that "[t]here are only a few situations in successorship or accretion cases in which the Authority and the [National Labor Relations Board (NLRB)] found a . . . QCR and directed an election." RD's Decision at 23. Despite having already found that there was no successorship or accretion, the Regional Director considered the relative strengths of AFGE and NFFE to decide whether the 4,711 employees represented by AFGE would be "sufficiently predominant" over the 1,384 employees represented by NFFE in the new organization to conclude that an election is unnecessary. [ v56 p128 ]
The Regional Director stated that "[t]he Authority has not defined 'sufficiently predominate' in cases where a new organization has been created, nor has the Authority discussed to what extent the sheer numbers play in determining what 'sufficiently predominate' means." RD's Decision at 25-26. The Regional Director concluded that under the circumstances a QCR exists, and that the employees should be given the opportunity to decide what labor organization they want to be their exclusive representative, if any. Accordingly, the Regional Director ordered an election among the employees of AMCOM between AFGE Local 1858, NFFE Local 405, or neither union. The Regional Director ordered that professional employees be given the further choice of whether to be included in a unit with nonprofessional employees.
III. Positions of the Parties and Amicus
A. NFFE
NFFE states that the Authority should not modify its current successorship or accretion doctrines. A result of modifying the doctrines "would likely be a multiplicity of cases . . . [which] would not be in the best interest of the Authority since it would require increased time and resources." NFFE brief at 4.
Rather than modify current doctrine, NFFE contends that the circumstances here call for creation of a "third" doctrine. NFFE asserts that a QCR should always be raised when more than one group of employees, represented by different labor organizations, are transferred to a newly established organization and neither current successorship nor accretion doctrine permit certification without an election. In other words, NFFE contends that an election should be held without reference to the relative numbers of employees represented by different labor organizations. In support of its position, NFFE argues that elections are favored in the federal sector, and, unlike the private sector, the Federal Service Labor-Management Relations Statute (the Statute) requires an agency to accord exclusive recognition only upon a majority showing by secret ballot election.
NFFE states as an alternative that there should be a presumption of a QCR whenever the smaller of the competing unions represents at least 10 percent of the employees in the new unit. NFFE compares the situation here to that of an intervenor, which needs only a 10 percent showing to gain an election, rather than the 30 percent "showing of interest . . . required in federal labor law for a raiding union (See 5 C.F.R. 2422.3(c)(2))." Brief at 6.
B. AFGE
AFGE states that the Authority should modify either the accretion or successorship doctrine to deal with "internal reorganizations" like the instant one. It contends that the successorship standard in Port Hueneme "should apply without any modifications when it involves an actual change of Agency, [but] this standard is too restrictive for internal Agency reorganizations[.]" Brief at 14-15 (emphasis supplied). It argues that there is no justification for applying a test to determine whether the missions of the former and new organizations are "substantially similar" when the reorganization is internal.
AFGE suggests the following framework be used when resolving representational issues in internal reorganizations:
The Authority first should determine if an exclusive representative represented the majority of the employees in an appropriate unit. Once the appropriate unit is determined, the Authority next would determine whether a QCR exists. Finally, when more than one exclusive representative is involved, a QCR would exist only if none of the labor organizations has a sufficiently predominant number of employees.
AFGE contends that the two units here were integrated but that, contrary to the findings of the Regional Director, "there was little if any [change in] day-to-day working conditions of the former MICOM employees." Brief at 12.
AFGE proposes that the Authority should modify the successorship doctrine. It argues that the Authority should drop the requirement in "prong 2" that the new entity have a "substantially similar" organizational mission to the old when there is an "internal" reorganization and the same agency remains the employer.
AFGE contends that the measure of whether one group is "sufficiently predominant" over the other so as to render an election unnecessary should be based on the 30 percent rule required for a showing of interest for an election in initial organization.
AFGE asserts that no election is necessary in this case, regardless of the standard adopted because (1) the employees in its former unit represent 77 percent of the employees in the new unit; and (2) regardless of the comparative numbers of employees represented by the two labor organizations, "[t]he former MICOM employees are performing substantially the same duties, under the same supervision with just a slightly expanded mission[.]" Brief at 19. [ v56 p129 ]
C. Amicus Curiae -- the General Counsel
The General Counsel presents a "decisional protocol" for resolving issues concerning reorganizations and their effect on existing recognitions and certifications. The General Counsel recommends modifying both the accretion and the successorship doctrines.
Essentially, the General Counsel, like AFGE, recommends expanding the accretion doctrine to cover situations where there is more than one union involved and pre-existing units are merged into a new employing entity, as here. In such a case, suggests the General Counsel, there should be a presumption of a QCR, which could be rebutted if one union is "sufficiently predominant" in terms of the total number of employees who would comprise the new appropriate unit. If the presumption is rebutted, absent special circumstances, the smaller group would "accrete" in the sense that it would be represented by the labor organization that represents the larger, "sufficiently predominant" group in the new employing entity. Thus, under this scenario, the accretion doctrine would be expanded to permit accretion to a newly established unit.
Regarding the measure of "sufficiently predominant," the General Counsel recommends that if more than 70 percent of the employees in the new unit were represented by a union in a disestablished unit, there should be a presumption that the second or other unions would not establish a substantial claim of interest.
The General Counsel notes his awareness "of the Authority's justified concern that accretion should be narrowly applied, because it precludes self-determination," particularly when the employees have been represented by a rival union. Brief at 24. However, the General Counsel points out that the Authority has stated that it may not direct an election where it would be a useless exercise or prejudicial to the dominant group. Id. at 24-25.
The General Counsel also states that special circumstances may affect the presumption of a QCR, and suggests that there could be circumstances where an election is necessary in a new unit even though more than 70 percent of the employees were represented by one union.
The General Counsel suggests modification of the successorship doctrine, recommending that it apply only to situations involving one labor organization.
IV. Analysis and Conclusions
A. AMCOM Is A Successor Employer
The analytical framework for resolving a representation petition after a reorganization, when both successorship and accretion principles are claimed to apply, is set out in United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 958-59 (1997) (FISC). As pertinent here, the Authority first will determine whether the new group of employees are included in, and constitute a majority of a separate appropriate unit. Having so found, the Authority will then apply the remaining successorship principles as set out in that case and Port Hueneme.
The Authority set out the test in full in Port Hueneme. Thus, it will find that 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 an appropriate bargaining unit, under section 7112(a)(1) of the Statute, after the transfer; 4/ 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.
__________
4/ Under section 7112(a)(1), a unit may be determined appropriate only if it will: (1) ensure a clear and identifiable community of interest among the employees in the unit; and (2) promote effective dealings with, and efficiency of the operations of, the agency involved. The Authority makes determinations under section 7112(a)(1) on a case-by-case basis. See Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245, 1254 (1992).
Port Hueneme, 50 FLRA at 368.
As pertinent here, regarding the requirements of the first factor or prong, it is undisputed, and the Regional Director found, that the former ATCOM and [ v56 p130 ] MICOM employees constitute a separate, appropriate unit in the newly established AMCOM organization. [n4] Furthermore, the transferred employees constitute a majority of the new unit.
Prong two requires that the claimed successor have substantially the same organizational mission as the losing entity and that transferred employees perform substantially the same duties and functions under substantially similar working conditions after the transfer.
The Regional Director determined that AMCOM is not a successor employer because, for two reasons, it does not meet the requirements of prong two. In this regard, the Regional Director concluded first that its mission is a combination of the missions of the former ATCOM and MICOM organizations, and that AMCOM therefore does not have substantially the same organizational mission as the losing entities.
We adopt the Regional Director's statement of the legal standard, which is that missions of the former and gaining employers be substantially the same and that the transferred employees perform substantially the same duties and functions under substantially similar working conditions, and her factual determination that AMCOM's mission is a combination of the missions of ATCOM and MICOM. However, we conclude, contrary to the Regional Director, that this combined mission represents substantially the same organizational mission as those of the two predecessor organizations. [n5]
There is no claim that the combination of missions represents any new elements not found in one or the other of the disestablished organizations. Rather, the mission of one entity was added to that of another when the new organization was created, combining the missions of the disestablished organizations. This is not a case of combining two disestablished entities with the result that an entirely new mission has been created. When more than one group of employees is transferred into a new entity, the potential exists for the blending of the two missions into the gaining employer while maintaining a mission in the new entity that is substantially the same as the missions of the disestablished organizations, as we have found here. Therefore, AMCOM satisfies this aspect of the prong two requirements to be a successor employer.
The Regional Director concluded, second, that the requirements of prong two were not met because over a third of the unit employees were no longer performing substantially the same duties and functions, and the work environment of many had changed. Thus, employees now are relocated throughout AMCOM. The Regional Director also found that a number of employees picked up additional and different job functions, while some did not. Further, some employees received training to perform their additional duties and some employees changed jobs altogether. However, most of the examples the Regional Director relied upon consist of employees performing the same function, but applying it to both aviation and missile operations. For example, the Regional Director noted that "MICOM employees who worked with missiles now work on aviation functions," but are performing the same task. RD's Decision at 19. Similarly, program analysts deal with matters related to the aviation function as well as the missile systems. Based on the record as a whole, we do not find this a sufficient basis for concluding that the changes in duties, functions and working conditions were so great as to no longer be substantially the same or similar, respectively.
Where prong two is thus satisfied, we proceed to prong three. If it has not been demonstrated that an election is necessary, successorship is established. [ v56 p131 ]
B. AFGE Represents A Sufficiently Predominant Number of Employees In AMCOM To Make An Election Unnecessary
The third prong of the Port Hueneme test to determine whether a gaining entity is a successor employer is whether it has been demonstrated that an election is necessary. The Authority has recognized that when more than one labor organization has represented employees in a new unit, one group may be "sufficiently predominant" to render an election unnecessary. See Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Ohio, 53 FLRA 1114, 1134 (1998) (DLA, Columbus). However, the Authority has yet to define when a group is sufficiently predominant. [n6] The Petitioners and the General Counsel, amicus, expressed different views.
NFFE suggests that if one group constitutes at least 10 percent of the combined employees in the new unit, this should be seen as a substantial showing of interest sufficient for an election. In other words, a union would have to represent more than 90 percent of the unit to find that it is sufficiently predominant to become the representative of all employees in the unit without an election. AFGE and the General Counsel state that 70 percent should be the guideline. Furthermore, the General Counsel states that there may be special circumstances where an election is necessary in a new unit even though more than 70 percent of the employees are represented by one union.
We take as the guiding principle for determining whether one group is sufficiently predominant to render an election unnecessary whether there is a reasonable assurance of a meaningful contest. Cf. U.S. Department of Transportation, U.S. Coast Guard Finance Center, Chesapeake, Virginia, 34 FLRA 946, 949 (1990) (requirement for showing of interest helps to avoid unnecessary expenditure of time and funds where there is no reasonable assurance that a genuine representation question exists). We also note with approval the practice of the NLRB, which will not direct an election where it would be a useless exercise or prejudicial to the dominant group. See DLA, Columbus, 53 FLRA at 1134, citing NLRB cases. If there is no reasonable assurance that the smaller group could succeed in an election, the holding of such a contest would be a waste of time and resources, since the predominant group already has voted for its representative. The statutory requirement of section 7111(a) that an exclusive representative be selected in a secret ballot election by a majority of the employees in an appropriate unit is thus fulfilled.
As to the measure of "sufficiently predominant," both the General Counsel and the AFGE draw our attention to the fact that a 30 percent showing of interest is required by the Statute for a petitioner to gain an election where there is not an exclusive representative, or where there is an allegation that an exclusive representative no longer represents a majority. Section 7111(b)(1)(A) and (B). [n7]
NFFE's argument that its situation here is like that of an intervenor, which needs only a 10 percent showing of interest to gain participation in an election under the Statute, ignores an important distinction. Here, a 30 percent showing of interest would determine whether a QCR exists, requiring an election, in contrast to whether an intervenor with a 10 percent showing of interest may participate in an election where a QCR already exists.
Based on the foregoing, we conclude that, absent special circumstances, not present here, 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. [n8] In such a situation, prong three of Port Hueneme is satisfied through the determination that an election would be unnecessary. We base our conclusion on a finding that unless the smaller group [ v56 p132 ] consists of at least 30 percent, absent special circumstances, there is no question concerning representation.
Here, as AFGE represented the 4,711 MICOM employees who transferred to AMCOM, compared to the 1,384 ATCOM employees who transferred and were formerly represented by NFFE, AFGE is sufficiently predominant, representing more than 77 percent of eligible employees, so as to render an election unnecessary. No special circumstances were alleged. Accordingly, we clarify the units represented by AFGE Local 1858 to include former employees of the two commands who transferred to the successor employer, and we amend the certification to reflect the change in name of the activity, which is now Department of the Army, U.S. Army Aviation Missile Command (AMCOM), Redstone Arsenal, Alabama.
V. Order
The petition by AFGE Local 1858, AFL-CIO, in AT-RP-80005, is granted. The former MICOM units represented by AFGE are clarified to include all the professional and nonprofessional employees, respectively, who are employed at the new AMCOM facility, which is the successor to the former ATCOM and MICOM organizations. The certification of AFGE Local 1858 is amended to state that the activity is Department of the Army, U.S. Army Aviation Missile Command (AMCOM), Redstone Arsenal, Alabama.
Having found that no question concerning representation exists, the petition by NFFE Local 405, in AT-RP-80007, is dismissed.
Footnote # 1 for 56 FLRA No. 14
The National Federation of Federal Employees, Local 405 (NFFE Local 405, or NFFE), Petitioner in Case No. AT-RP-80007 and Intervenor in AT-RP-80005, had filed an opposition to the application for review and request for stay of election.
Footnote # 2 for 56 FLRA No. 14
55 FLRA 640 (1999), Member Wasserman dissenting in part, as to the denial of the request to stay election.
Footnote # 3 for 56 FLRA No. 14
In view of this decision, it is unnecessary to open and count the impounded ballots cast in the election held prior to this decision.
Footnote # 4 for 56 FLRA No. 14
The parties stipulated that units of all professional employees of AMCOM and all nonprofessional employees of AMCOM, are appropriate units.
Footnote # 5 for 56 FLRA No. 14
The Application for Review was granted "to determine whether to develop a `sufficiently predominant' or other theory to apply to cases where a reorganization has disestablished activities and placed their former employees in a newly created entity, where the employees were exclusively represented by more than one labor organization." 55 FLRA at 643. The Petitioner's Application regarding prong two of Port Hueneme claimed that the Regional Director interpreted "substantially similar" as being nearly identical. Application for Review at 3. We determined that the Regional Director articulated and used the correct legal standard. 55 FLRA at 643 n.7. However, in light of our reservation of judgment as to whether a "sufficiently predominant" number of the larger unit was present to avoid a QCR, we did not analyze whether the Regional Director properly applied the prong two standard. As set forth below, we now adopt and apply a definition of "sufficiently predominant" numbers in a new unit to determine that prong three of the successorship doctrine has been met in this case. As a result, it is necessary to assess whether the new organization's mission complies with the test under prong two of Port Hueneme. In that regard, for the reasons discussed, infra, we conclude that the Regional Director's original holding as to prong two of Port Hueneme is incorrect.
Footnote # 6 for 56 FLRA No. 14
The numbers of employees in the two groups in DLA, Columbus were so close that the case did not present an opportunity for the Authority to set a standard. In determining that an election was necessary, the decision noted that the two groups, of 212 and 198 unit employees, were "virtually equal in number," and that therefore there was no evidence that either group was sufficiently predominant to remove the question concerning representation. 53 FLRA at 1134.
Footnote # 7 for 56 FLRA No. 14
We note, in addition, that experience in the private sector has led the NLRB to promulgate a rule that a 30 percent showing of interest is required to raise a QCR by a petitioning labor organization or a person seeking decertification. NLRB Rules and Regulations, 29 C.F.R. § 101.18(a) (1999). The Board also has applied a 30 percent rule involving such voluntary recognition situations as, for example, where a voluntary recognition barred the processing of a subsequent petition unless the petitioner demonstrated that it had a 30 percent showing of interest at the time of recognition. Smith's Food and Drug Centers, Inc., 320 NLRB 844 (1996).
Footnote # 8 for 56 FLRA No. 14
"Special circumstances" would include cases where there is clear evidence that the percentage of employees represented by the unions in the separate, appropriate unit is not a dispositive indicator of their respective strength. For example, where the smaller union produces reliable evidence that it is supported by more than 30 percent of the employees in the proposed unit, the larger union's historical representation of more than 70 percent of the employees in the newly combined unit would not establish that it is sufficiently predominant to render an election unnecessary because such an election would be a useless exercise.