[ v62 p480 ]
62 FLRA No. 88
UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL FACILITIES ENGINEERING
COMMAND, SOUTHEAST
JACKSONVILLE, FLORIDA
(Activity)
and
INTERNATIONAL ASSOCIATION
OF MACHINISTS & AEROSPACE WORKERS
LOCAL LODGE 192
(Petitioner)
AT-RP-05-0024
_____
AND
UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL FACILITIES ENGINEERING
COMMAND, SOUTHEAST
JACKSONVILLE, FLORIDA
(Agency/Petitioner)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2010
(Incumbent/Labor Organization)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2298
(Incumbent/Labor Organization)
and
INTERNATIONAL ASSOCIATION
OF MACHINISTS & AEROSPACE WORKERS
LOCAL LODGE 192
(Incumbent/Labor Organization)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
(Incumbent/Labor Organization)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1566
(Incumbent/Labor Organization)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2244
(Incumbent/Labor Organization)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2053
(Incumbent/Labor Organization)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1735
(Incumbent/Labor Organization)
and
NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R5-87
(Incumbent/Labor Organization)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2427
(Incumbent/Labor Organization)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1845
(Incumbent/Labor Organization)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 696
(Incumbent/Labor Organization)
AT-RP-06-0002
_____
AND
[ v62
p481 ] UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL FACILITIES ENGINEERING
COMMAND, SOUTHEAST
JACKSONVILLE, FLORIDA
(Activity)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2010
(Petitioner/Incumbent/Labor Organization)
AT-RP-06-0012
_____
AND
UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL FACILITIES ENGINEERING
COMMAND, SOUTHEAST
JACKSONVILLE, FLORIDA
(Activity)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 696
(Incumbent/Labor Organization)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2010
(Petitioner/Labor Organization)
AT-RP-06-0013
______
ORDER DENYING
APPLICATIONS FOR REVIEW
June 17, 2008
______
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This case is before the Authority on applications for review of the Regional Director's (RD's) Decision and Order (Decision) filed by the American Federation of Government Employees, AFL-CIO (AFGE) and the National Association of Government Employees, Local R5-87 (NAGE Local R5-87) under § 2422.31 of the Authority's Regulations. [n1] The Agency (the Department of the Navy (DON)), Naval Facilities Engineering Command, Southeast, Jacksonville, Florida (NAVFAC SE)) filed an opposition to the applications for review.
As a result of Agency reorganizations, several petitions were filed seeking various determinations of successorship, unit clarification, or the accretion of certain employees into certain bargaining units. Except for two bargaining units represented by AFGE Local 2298 and IAM Lodge 192, which the RD determined were appropriate, separate successor units, the RD found that a NAVFAC SE-wide bargaining unit was appropriate for the remaining NAVFAC SE nonprofessional employees, and that the unit previously represented by NAGE Local R5-87 was no longer an appropriate unit separate from the NAVFAC SE-wide unit. The RD further found that although professional employees represented by AFGE Local 2010 had been previously included in a mixed unit of professionals and nonprofessionals, the reorganization changed those employees' circumstances, and that these changed circumstances, and § 7112(b)(5) of the Federal Service Labor-Management Relations Statute (Statute), precluded the inclusion of these employees in the nonprofessional NAVFAC SE-wide unit. [n2] The RD determined that an election is necessary to ascertain the exclusive representative of the NAVFAC SE-wide unit of nonprofessional employees, but that the circumstances of this case do not warrant an election for the professional employees.
[ v62 p482 ] For the following reasons, we deny AFGE's and NAGE Local R5-87's applications for review.
II. Background and RD's Decision
A. Background
As relevant here, in 1992, the Public Works Center (PWC), Jacksonville, Florida (PWC Jacksonville) was formed by consolidating certain public works departments (PWDs) located at Jacksonville, Cecil Field, and Mayport, Florida, and AFGE Local 2010 was certified as the exclusive representative of a bargaining unit of all professionals and nonprofessionals of PWC Jacksonville. [n3] In 2003, a bargaining unit of nonprofessional employees represented by IAM Lodge 192 at PWC Pensacola, Florida were transferred and realigned to PWC Jacksonville. In 2004, the PWC Pensacola was disestablished and re-designated as the PWC Jacksonville, Pensacola Detachment.
In January 2006, unit employees performing public works functions in various PWDs, including, as relevant here, employees located at the Naval Support Activity (NSA), New Orleans, Louisiana, represented by NAGE Local R5-87, were realigned to PWC Jacksonville. [n4] All except one Resident Officer in Charge of Construction organization at the affected PWDs were simultaneously realigned to the DON, Engineering Field Activities (EFA SE).
In June 2006, NAVFAC SE was formally established as a result of the consolidation of PWC Jacksonville, the Naval Facilities Engineering Command Southern Division (SDIV), and the EFA SE. In October 2006, employees initially detailed to PWC Jacksonville were realigned to NAVFAC SE, and PWC Jacksonville, SDIV and EFA SE were all disestablished. Also during this time period, employees from PWDs at other NAS facilities were transferred to NAVFAC SE. [n5]
As a result of the reorganizations, the following petitions were filed:
- IAM Lodge 192, which represents all nonprofessional employees of PWC Jacksonville, Pensacola Detachment, initially filed a petition seeking a determination as to whether the DON, PWC, Pensacola Detachment, Pensacola, Florida was the successor employer of PWC, Pensacola, Florida.
- PWC Jacksonville filed a petition that initially sought a determination as to whether, as a result of the reorganizations, the following separate units of employees were no longer appropriate: employees represented by IAM Lodge 192, at Pensacola, Florida; employees represented by AFGE, Local 2298, at Charleston, South Carolina; and employees represented by AFGE Local 2010, at Jacksonville, Florida and Mayport, Florida. PWC Jacksonville also sought a determination as to whether such units, together with a portion of a unit of employees located in Panama City, Florida represented by AFGE Local 1380, constituted a single appropriate unit. Subsequently, the petition was amended to raise issues concerning the appropriate bargaining unit structure applicable to the newly formed NAVFAC SE Naval Facilities. The amended petition involved a number of incumbent labor organizations, including NAGE Local R5-87.
- AFGE Local 2010, which represented a combined unit of all professional and nonprofessional employees located in Jacksonville and Mayport, Florida, filed a petition seeing to accrete certain unrepresented employees located in Jacksonville and Mayport, Florida into its existing bargaining unit. [n6]
B. RD's Decision
The RD set forth the legal framework established in United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950 (1997) (FISC), [n7] and stated that he needed to address [ v62 p483 ] whether a NAVFAC SE-wide bargaining unit of nonprofessional employees was appropriate, or whether smaller petitioned-for units are appropriate. The RD stated that in order for employees to continue to be included in separate units, the evidence must demonstrate that the employees have significant employment concerns or personnel issues that are different or unique from those of other employees in the gaining organization, NAVFAC SE. The RD stated that the evidence must demonstrate that the employees have not been so integrated, either functionally or physically, with other organizational components that the establishment of a separate unit would cause undue fragmentation resulting in operational inefficiency and confusion in dealings between labor and management. Further, citing United States Naval Facilities Eng'g Services Center, Port Hueneme, Cal., 50 FLRA 363 (1995) (Port Hueneme), the RD set forth the criteria to be applied where one or more parties claim that a gaining agency or activity is a successor employer. [n8]
With the exception of two successor units not at issue here, the RD found that as a result of the reorganization, a NAVFAC SE-wide bargaining unit of nonprofessional employees was appropriate. The RD found that employees throughout the NAVFAC SE sites share a clear and identifiable community of interest. In particular, the RD found that despite the absence of geographical proximity, the employees all work for the same organizational component (NAVFAC SE), support the same mission, are subject to the same chain of command, have similar or related duties and job titles, and are governed by the same personnel policies centrally administered at the NAVFAC SE level.
The RD also found that the NAVFAC SE-wide unit would promote effective dealings. In this regard, the RD found that the record showed that local managers no longer retain authority to establish policies, procedures or working conditions within their respective locations. Rather, according to the RD, the NAVFAC SE Commanding Officer (CO) is responsible for establishing such policies and procedures for all NAVFAC SE employees. The RD found that although the CO has delegated his authority to engage in labor negotiations at each site to the Executive Officer (XO) and Director of the Management Services Department of NAVFAC SE, the CO retains ultimate authority over the conduct of such negotiations. Moreover, the RD found that all personnel and labor relations matters are administered centrally from NAVFAC SE.
The RD found that a NAVFAC SE-wide unit would also promote efficiency of Agency operations. In this respect, the RD found that the sites throughout NAVFAC SE are operationally integrated and a NAVFAC SE-wide unit would reflect that integrated structure.
Accordingly, the RD concluded that a NAVFAC SE-wide unit was appropriate. Having reached this conclusion, the RD noted that, "it cannot be determined that [such a] unit is the only appropriate unit." RD Decision at 20 (emphasis in original). Citing United States Dep't of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328 (2000) (Naval Base, Norfolk), and United States Dep't of the Army, Army Materiel Command, Headquarters, Joint Munitions Command, Rock Island, Ill., 62 FLRA 313 (2008) (Rock Island), the RD noted that the Authority "gives primary consideration to the appropriate unit claim that will most fully preserve the status quo in terms of unit structure and the relationship of employees to their chosen exclusive representative." RD Decision at 20. The RD also noted that the Authority "is reluctant to disturb long-standing bargaining units when bargaining in those units has been successful." Id.
The RD then addressed the specific successorship arguments raised by the petitioners. As relevant here, AFGE National Office argued before the RD that the NAVFAC SE employees at PWC Jacksonville who were in a mixed unit of all professional and nonprofessional employees represented by AFGE Local 2010 should remain in a separate appropriate unit, while NAGE Local R5-87, which represented nonprofessional employees of the NSA in New Orleans, Louisiana, argued that it should continue to represent, in a separate unit, the public works employees who had been organizationally reassigned to NAVFAC SE.
Applying the successorship criteria set forth in Port Hueneme, the RD found that only two separate units of employees transferred to NAVFAC SE remained separately appropriate, specifically: (1) a unit of employees represented by AFGE Local 2298 transferred [ v62 p484 ] from the PWC Jacksonville, Charleston Zone to the NAVFAC SE PWD Charleston; and (2) a unit of employees represented by IAM Lodge 192 who had been transferred from the PWC Jacksonville, Pensacola Detachment Pensacola, Pensacola, Florida. The RD found the remaining petitioned-for separate units, including those of AFGE Local 2010 and NAGE Local R5-87, would no longer be appropriate. The RD found that, unlike the two units that he found to be separately appropriate, which had been "essentially transferred intact," all but one of the remaining petitioned-for units would consist of employees who are "`carved out' of existing units at the [involved sites]." Id. at 25. With respect to the one exception, AFGE Local 2010, the RD found that PWC Jacksonville had evolved from a "stand alone" and self-contained organization of public works employees located in Jacksonville and NS Mayport to a "headquarters" organization that absorbed the public works functions of the various facilities throughout NAVFAC SE, which now forms the "hub of and houses the [c]ommand offices of NAVFAC SE." Id. at 27.
The RD found that the evidence failed to establish that the employees at any remaining sites continue to share an identifiable community of interest separate and distinct from the other NAVFAC SE public works employees. In this regard, the RD found that: (1) the "public works employees at each site no longer report to the CO of their respective sites," but instead "report through a new chain of command to the CO of the NAVFAC SE, who is responsible for making budget and staffing decisions for all NAVFAC SE facilities[;]" (2) the positions encumbered by the public works employees at each site are similar to those held by other public works employees throughout the NAVFAC SE; and (3) the employees are all subject to the same NAVFAC SE-wide personnel policies and utilize the same labor relations services. Id. at 25. In sum, the RD found that there was insufficient evidence to demonstrate that any of the remaining groups of employees had significant employment concerns that are purely local in nature, or distinct personnel issues that could be addressed through contractual matters unique to each separate location. As an example, the RD noted the NSA New Orleans facility, where nonprofessional public works employees who were represented by NAGE Local R5-87 and realigned to NAVFAC SE lost access to the fitness program available to non-public works employees who remained in NAGE Local R5-87's New Orleans bargaining unit and were precluded from further participation in the 4-10 compressed work schedules.
The RD further found that the record did not establish that the recognition of separate units would promote effective dealings with NAVFAC SE. In this regard, the RD found that NAVFAC SE "now establishes policies applicable to all the employees, and all significant labor relations matters, including the negotiation of collective bargaining agreements are handled through NAVFAC SE." Id. at 26. According to the RD, if "separate units at each site were found to be appropriate, personnel from NAVFAC SE would be responsible for negotiating and administering multiple collective bargaining agreements, thereby placing additional responsibilities on the staff and making effective dealings more cumbersome." Id.
Finally, the RD found that the separation of employees into several small units would hinder the efficiency of agency operations because it would result in the artificial and unwarranted fragmentation of an integrated organizational structure. The RD found that, unlike the Charleston and Pensacola facilities, whose exclusive representatives had extensive histories of bargaining with management separate and apart from the NAVFAC SE organization, none of the other unions had any history of collective bargaining with NAVFAC SE or its predecessors.
Accordingly, the RD found that (excluding the two units found to be separately appropriate) a NAVFAC SE-wide bargaining unit was appropriate. Citing United States Dep't of the Army, U.S. Army Aviation Missile Command (AMCOM) Redstone Arsenal, Ala., 56 FLRA 126 (2000), and Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, N.C., 45 FLRA 281 (1992), the RD found that an election was necessary to determine the exclusive representative, if any, of the nonprofessional employees in that unit, and the RD directed an election for the NAVFAC SE-wide unit.
However, the RD found that such bargaining unit should not include the professional employees who had been previously included in the mixed professional/nonprofessional units represented by AFGE Local 2010 at the former PWC Jacksonville and NS Mayport. In this regard, the RD found that:
[t]he reorganization that resulted in formation of NAVFAC SE substantially changed the character and scope of these units so dramatically that the mixed unit is no longer an appropriate unit. Moreover, [§ 7112(b)(5) of the Statute] precludes the inclusion of professional employees with non-professional employees unless a majority of the professionals vote for inclusion [ v62 p485 ] in the unit. Accordingly, given that the number of professional employees who were represented by AFGE Local 2010 (a total of approximately 25; [Authority] Ex. 15) is less than even a 30 percent showing of interest that would be required to warrant an election, I find that an election is not warranted . . . for the professional employees. Fed Aviation Admin., Aviation Standards Nat'l Field Office, 15 FLRA 60, 67-68 (1984).
RD Decision at 29 (emphasis in original).
III. Positions of the Parties
A. NAGE Local R5-87
NAGE Local R5-87 argues that the RD failed to apply established law, including FISC, 52 FLRA 950. According to NAGE Local R5-87, if the RD had applied established law, then he would have found NAVFAC SE to be a successor employer and would have certified NAGE Local R5-87 as the representative of a stand-alone unit of public work employees at NAVFAC SE, New Orleans. NAGE Local R5-87 contends that the RD's "determination that the New Orleans Public Works (NOPW) employees were `carved out' of an existing unit is not a factor to be considered in applying the law regarding successorship." NAGE Application at 11.
Citing FISC, NAGE Local R5-87 argues that the realigned employees are included in, and constitute a majority of, a separate appropriate unit. According to NAGE Local R5-87, applying the community of interest factors, the NOPW employees continue to have "purely local concerns[.]" Id. at 7. In this regard, NAGE Local R5-87 asserts, among other things, that: (1) NOPW employees have no interaction with other NAVFAC employees; (2) the New Orleans commuting area is the area of consideration for vacancies, promotions, and reductions-in-force; (3) NOPW wage grade employees are in a different wage survey area from other NAVFAC SE employees and the general schedule employees are in a different locality pay area from other NAVFAC SE employees; (4) the NOPW officer is given a budget by NAVFAC SE; (5) NOPW employees' grievances and minor disciplinary matters are handled locally, and the NOPW officer has day-to-day authority over virtually all matters; and (6) NOPW is geographically isolated from other NAVFAC SE locations.
NAGE Local R5-87 further asserts that recognizing the NOPW's employees as an appropriate unit would promote effective dealings because there is no evidence that recognizing NOPW as a "separate unit would [be] less effective[]" than the Agency's current arrangement for handling third-party matters. Id. at 8. NAGE Local R5-87 also contends that it has represented the subject employees for years and negotiated the agreement that covered them.
Concerning efficiency of agency operations, NAGE Local R5-87 asserts that there is no evidence to show that the cost of dealing with a separate unit of NOPW employees would be significantly higher than the current costs associated with providing personnel and other services to the New Orleans location. NAGE Local R5-87 contends that the NOPW mission, duties, functions, and working conditions have remained substantially the same. Finally, NAGE Local R5-87 asserts that an election would not be necessary because it represents "100 percent" of the realigned NOPW's employees. Id. at 10.
B. AFGE
Citing 5 C.F.R. § 2422.31(c)(3)(i), AFGE asserts that the RD "failed to follow established law when he refused to order an election among professional employees after a reorganization." [n9] AFGE Application at 4. According to AFGE, the RD "made no specific findings regarding the professional employees who were subject to the reorganization that led to the creation of NAVFAC SE." Id. at 6. However, AFGE argues that "it is reasonable to construe that the same facts and record evidence that supported a finding that a NAVFAC SE-wide nonprofessional unit is appropriate also [would] support finding that a NAVFAC SE- wide professional unit is an appropriate unit." Id. AFGE further contends that the RD's "reasoning regarding the requirement of a 30 percent showing of interest implies that [the RD] is referring to a 30 percent showing of interest for a NAVFAC SE-wide professional unit[,]" and that "[g]iven this . . . it is clear within the context of the decision that the RD found a NAVFAC SE-wide professional unit was . . . appropriate[.]" Id. at 6-7.
AFGE notes that the "only professional employees who were represented at the time of the reorganization were those represented by AFGE Local 2010." Id. at 7. AFGE asserts that the RD "fail[ed] to explain or cite any Authority precedent that supports his conclusion that professional employees' statutory right to vote for inclusion in a separate unit justifies denying them an opportunity to vote at all." Id. AFGE contends that the subject professional employees had previously voted to [ v62 p486 ] be included in a unit of nonprofessionals and that the RD "does not explain why these professional employees would have to vote again on the question of inclusion." Id. at 7-8.
AFGE further contends that the RD "based his refusal to allow professional employees to participate in an election on the fact that the number of professional employees represented by AFGE Local 2010 was `less than even a 30 percent showing of interest that would be required to warrant an election.'" Id. at 8. AFGE contends that it does not believe that FAA, Aviation Standards Nat'l Field Office, 15 FLRA 60 (1984) or "any other Authority precedent has established such a standard[]" and argues that applying United States, Social Security Administration, District Office, Valdosta, Georgia, 52 FLRA 1084 (1997) (Valdosta) and Port Hueneme to the facts here dictates that an election should be ordered among a unit of NAVFAC SE-wide professional employees. AFGE Application at 9. In this respect, AFGE asserts that the RD "found that a NAVFAC SE-wide unit satisfied the three appropriate unit criteria and that NAVFAC SE was the successor employer . . . ." Id. at 10. AFGE argues that "[s]ince the number of unrepresented professional employees transferred to NAVFAC SE exceeds the number of represented professional employees, the Authority, under Port Huenene and Valdosta, should order an election among all professional employees transferred to NAVFAC SE." Id.
Alternatively, AFGE asserts that if the Authority finds that it is not appropriate to order an election among all professional employees transferred to NAVFAC SE, then the Authority "should . . . allow the professional employees represented by AFGE Local 2010 to vote as part of the nonprofessional election ordered by the [RD]." Id. According to AFGE, it is "unaware of any Authority precedent that requires professional employees to meet the statutory requirement for voting for inclusion in a mixed unit more than once." Id.
C. Agency Opposition
1. Opposition to NAGE Local R5-87
The Agency asserts that the RD correctly applied established law and that NAGE Local R5-87 merely disagrees with the RD's conclusion. According to the Agency, once the RD determined that NAGE Local R5-87 employees did not constitute a separate appropriate separate unit, under Port Hueneme, successorship could not be found with regard to that unit.
2. Opposition to AFGE
The Agency asserts that, contrary to AFGE's assertion, the RD did make specific findings regarding the professional employees who were subject to the reorganization, and he concluded that the "AFGE Local 2010 unit containing professional and non-professional employees was found to not be an appropriate unit." Opposition at 9 (emphasis in original). In addition, the Agency contends that AFGE's assertion that the RD found a NAVFAC SE-wide professional unit was appropriate is "false." Id. According to the Agency, "[n]o party to the case argued that a region[-]wide unit containing professional employees was appropriate and no union sought to represent professional employees other than those currently represented in the AFGE 2010 unit found to be inappropriate." Id. at 10. The Agency contends that over 90 percent of the professional employees of NAVFAC SE have never been represented, many are new to the organization, and "no testimony was offered regarding the interaction between those unrepresented employees and other professional employees of NAVFAC SE." Id.
As to AFGE's alternative argument - requesting that the Authority allow the professional employees represented by AFGE Local 2010 to vote along with all of the nonprofessional employees in the NAVFAC SE-wide unit (an election that would not include the remaining professional employees of NAVFAC SE) -- the Agency asserts that there "is nothing in the record that indicates the professional [employees] in Jacksonville and Mayport have a community of interest that is distinct from other professionals in the region" that "justifies treating them differently." Id. at 11. Further, the Agency disputes AFGE's claim that the RD found that NAVFAC SE was the successor employer for the professional employees, noting that the RD "specifically denied all successorship claim[s]," with the exception of two units not at issue here. Id. Moreover, according to the Agency, an exclusive representative did not "represent a majority of employees in a region wide unit[,]" therefore, "unlike [Valdosta], this is not a situation where successorship or accretion is . . . appropriate." Id. at 11-12.
IV. Analysis and Conclusions
A. Analytical Framework
In FISC, the Authority adopted the following framework for resolving cases arising from a reorganization where employees are transferred to a pre-existing or newly established organization and both successorship and accretion principles are claimed to apply:
[ v62 p487 ] (1) Initially, the Authority will determine whether, under section 7112(a) of the Statute, the transferred employees are included in, and constitute a majority of, a separate appropriate unit in the gaining organization. The outcome of this inquiry will govern whether successorship or accretion principles should next be applied.
(2) If it is determined that the transferred employees are included in and constitute a majority of a separate appropriate unit in the gaining organization, the Authority will apply the remainder of the successorship factors set forth in Port Hueneme to the unit determined to be appropriate. The outcome of the Port Hueneme analysis will determine whether the gaining organization is a successor for purposes of collective bargaining with the labor organization that represented the transferred employees at their previous employer.
(3) If it is determined that the transferred employees are not included in, or do not constitute a majority of a separate appropriate unit in the gaining organization, we will apply accretion principles. The outcome of this analysis will determine whether the transferred employees have accreted to a pre-existing unit in the gaining organization.
52 FLRA at 958-59. See also Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Ohio, 53 FLRA 1114, 1121 (1998); Dep't of the Navy, Naval Supply Center, Puget Sound, Bremerton, Wash., 53 FLRA 173, 178-79 (1997).
The first step in this framework "corresponds to the first factor set forth in Port Hueneme, which requires, inter alia, that `the post-transfer unit must be appropriate[.]'" FISC, 52 FLRA at 959 (quoting Port Hueneme, 50 FLRA at 368). To determine whether a unit is appropriate under § 7112(a) of the Statute, the Authority considers whether the unit would: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with the agency involved; and (3) promote efficiency of the operations of the agency involved. Id. at 959-62. A proposed unit must meet all three criteria in order to be found appropriate. United States Dep't of the Army, Military Traffic Management Command, Alexandria., Va., 60 FLRA 390, 394 (2004). Determinations as to each of these criteria are made on a case-by-case basis. Id. The Authority has set out factors for assessing each criterion, [n10] but has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. Id
B. NAGE Local R5-87 has not established that the RD failed to apply established law
NAGE Local R5-87 disputes the RD's finding that its former unit would not constitute an appropriate unit. With regard to the first appropriate unit criterion -- whether employees share a clear and identifiable community of interest -- the Authority examines such factors as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation. See FISC, 52 FLRA at 961 (citations omitted). In addition, the Authority considers factors such as whether the employees in the proposed unit are a part of the same organizational component of the agency; support the same mission; are subject to the same chain of command; have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel office. See id. at 960-61.
In this case, the RD found that the evidence failed to establish that the employees at the NOPW site share an identifiable community of interest separate and distinct from the other NAVFAC SE public works employees. Although NAGE Local R5-87 argues that NOPW employees have no interaction with other NAVFAC employees, the RD found that the "record containe[d] some evidence of interchange among the employees at the various other sites . . ." RD Decision at 19. The RD found, for example, that the "employees at NAVFAC headquarters interact with employees at other sites in the process of providing . . . services . . . [and o]n limited occasions, employees from one site have supported functions at various sites." Id. The RD further found that employees at all the sites, including the employees represented by NAGE Local R5--87, are subject to the same personnel, travel, and training policies, which are established by the NAVFAC SE, and all are compensated from the same NAVFAC SE budget managed by a central comptroller. See id. at 18. In sum, the RD found that despite the absence of geographical proximity, the pertinent employees of NAVFAC SE, including those in the separate unit proposed by NAGE Local R5-87, all work for the same organizational component, support the same mission, are subject to the same chain of command, have similar or related duties and job titles, and are governed by the same personnel policies centrally [ v62 p488 ] administered at the NAVFAC SE level. NAGE Local R5-87 has not provided any basis for finding that the RD erred in his assessment of the community of interest factors, and those factors support a conclusion that NAGE Local R5-87 has not demonstrated that employees in its proposed unit share a community of interest separate and distinct from other NAVFAC SE public works employees.
NAGE Local R5-87 further argues that recognizing the NOPW's employees as a separate unit would promote effective dealings with NAVFAC SE. The criterion of effective dealings pertains to the relationship between management and the exclusive representative selected by unit employees in an appropriate bargaining unit. See FISC, 52 FLRA at 961. In assessing this requirement, the Authority examines such factors as the past collective bargaining experience of the parties; the locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit; the limitations, if any, on the negotiation of matters of critical concern to employees in the proposed unit; and the level at which labor relations policy is set in the agency. See, e.g., Rock Island, 62 FLRA at 318-19.
As discussed previously, the RD found that the recognition of separate units would not promote effective dealings with NAVFAC SE because NAVFAC SE "now establishes policies applicable to all the employees, and all significant labor relations matters, including the negotiation of collective bargaining agreements[, which] are handled through NAVFAC SE." RD Decision at 26. According to the RD, if "separate units at each site were found to be appropriate, personnel from NAVFAC SE would be responsible for negotiating and administering multiple collective bargaining agreements, thereby placing additional responsibilities on the staff and making effective dealings more cumbersome." Id. NAGE Local R5-87 has not provided any basis for finding that the RD erred in this assessment, and the RD's findings (and the absence of any evidence to the contrary) support a conclusion that the petitioned-for NAGE Local R5-87 unit would not promote effective dealings.
With regard to the criterion efficiency of agency operations, that criterion concerns the benefits to be derived from a unit structure bearing a rational relationship to the operations and organizational structure of the agency. See FISC, 52 FLRA at 961. As noted above, the RD found that separating the NAVFAC SE employees into several small units would hinder the efficiency of agency operations because it would result in the artificial and unwarranted fragmentation of an integrated organizational structure. NAGE Local R5-87 provides no basis for finding that the RD erred in this regard, and the RD's findings support his conclusion that recognizing a separate, small unit of employees represented by NAGE Local R5-87 would not promote the efficiency of Agency operations.
With regard to the RD's statement that NAGE Local R5-87's unit was "carved out" of an existing unit(s), even assuming that the statement was in error, that alleged error provides no basis for finding that the RD erred in finding that NAGE's proposed stand-alone unit would not be appropriate. As NAGE Local R5-87 has provided no basis for finding that the RD erred in his finding that the unit would not be appropriate, and as an appropriate unit determination is a threshold question that must be made before the remaining successorship or accretion principles can apply, see FISC, 52 FLRA at 958, we find that NAGE Local R5-87 has not established that the RD failed to apply established law, including FISC or Port Hueneme. Accordingly, we deny NAGE Local R5-87's application for review.
C. AFGE has not established that the RD failed to apply established law
AFGE asserts that the RD failed to apply established law when he refused to order an election among all of the professional employees - both those previously represented by AFGE Local 2010 and those that previously had been unrepresented - who have now been transferred to NAVFAC SE. In this connection, AFGE claims that the RD made no specific findings regarding those professional employees, but that he effectively found that a NAVFAC SE-wide professional unit would be appropriate.
We disagree with AFGE's characterization of the RD's Decision. As an initial matter, the RD did specifically make findings regarding at least some professional employees when he found that the reorganization that resulted in the formation of NAVFAC SE "substantially changed the character and scope of [the] units so dramatically" that the mixed unit of professional and non-professional employees represented by AFGE Local 2010 was no longer an appropriate unit. RD Decision at 29.
In addition, the RD did not find, expressly or impliedly, that a NAVFAC SE-wide unit of professional employees would be appropriate. We note that AFGE argues that the same factors that made a NAVFAC SE-wide unit of nonprofessional employees appropriate would make a NAVFAC SE-wide unit of professional employees appropriate. However, AFGE does not provide [ v62 p489 ] any specific arguments as to how the circumstances of the professional employees are the same as those of the nonprofessional employees, nor does it explain how a NAVFAC SE-wide unit of professional employees would share a community of interest or promote effective dealings with, and efficiency of operations of, the Agency. Additionally, the evidence does not show that, as a result of the reorganization, the professional employees represented by AFGE Local 2010 have been added to, accreted to, or combined with other previously represented professional employees so as to create a new appropriate unit warranting an election.
Further, as the Agency correctly notes, no union - including AFGE and AFGE Local 2010 - filed a petition seeking to represent a NAVFAC SE-wide unit of professional employees. Thus, the issue of whether a NAVFAC SE-wide unit of professional employees would be appropriate was not presented to the RD, and there is no basis for finding that the RD should have resolved such an issue or directed an election among such a proposed unit.
In fact, directing an election among a NAVFAC SE-wide unit of professional employees would, as the RD effectively found, allow AFGE to circumvent the showing-of-interest requirement because, even assuming that all of the employees previously represented by AFGE Local 2010 (approximately 25 employees) were to sign cards requesting an election, that number would constitute less than 30 percent of employees in the professional unit, the remainder of whom have not previously been represented by any union. See Authority Exh. 15. In these circumstances, declining to direct an election would be consistent with the established principle that "an Authority-run election should not be undertaken `where there is no reasonable assurance that a genuine representation question exists.'" [n11] United States Dep't of the Army, Military Traffic Management Command, Alexandria, Va., 60 FLRA 709, 711 (2005) (citations omitted) (Chairman Cabaniss concurring and Member Armendariz dissenting).
As to AFGE's alternative argument - that AFGE Local 2010's 25 professional employees should be allowed to vote alongside all of the NAVFAC SE nonprofessional employees in an election - AFGE does not explain how separating that small number of professional employees out of the larger group of NAVFAC SE professional employees and combining them with all of the nonprofessional employees would result in the creation of an appropriate unit. In addition, no union, including AFGE or AFGE Local 2010, filed a petition seeking an election among such a unit, and thus, there is no basis for finding that the RD erred by directing an election along those grounds.
Accordingly, we find that AFGE has not established that the RD failed to apply established law, and we deny AFGE's application for review.
V. Order
NAGE Local R5-87's and AFGE's applications for review are denied.
Footnote # 1 for 62 FLRA No. 88 - Authority's Decision
Section 2422.31(c) of the Authority's Regulations provides:
(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.
Footnote # 2 for 62 FLRA No. 88 - Authority's Decision
Section 7112(b)(5) of the Statute provides that a unit shall not be determined to be appropriate if it includes "both professional employees, and other employees, unless a majority of the professional employees vote for inclusion in the unit[.]"
Footnote # 3 for 62 FLRA No. 88 - Authority's Decision
As a result of a later reorganization, nonprofessional PWD employees located at a certain facility in Charleston, South Carolina were also transferred to PWC Jacksonville, and based on a successorship determination, continued to be represented by AFGE Local 2298.
Footnote # 4 for 62 FLRA No. 88 - Authority's Decision
The realignment also included employees at: NAS Corpus Christi, Texas represented by AFGE, Local 1735; Naval Air Station (NAS) Key West, represented by AFGE 1566; NAS, Pensacola, Florida, represented AFGE 1960; Naval Construction Battalion Center (NCBC), Gulfport, Mississippi, represented by AFGE; and NAS Meridian, represented by AFGE 2244.
Footnote # 5 for 62 FLRA No. 88 - Authority's Decision
AFGE, Local 1960 disclaimed interest in continuing to represent NAVFAC SE employees located at Whiting Field and NAS Pensacola, and AFGE, Local 696, who represented a unit at NAS Jacksonville, disclaimed interest in continuing to represent NAVFAC SE employees located at NAS Jacksonville.
Footnote # 6 for 62 FLRA No. 88 - Authority's Decision
AFGE 2010's mixed unit of professional and nonprofessional employees is the only unit involved here that contained professional employees.
Footnote # 7 for 62 FLRA No. 88 - Authority's Decision
The FISC framework is set forth in more detail below.
Footnote # 8 for 62 FLRA No. 88 - Authority's Decision
Under Port Hueneme, 50 FLRA at 368, a gaining agency or activity is considered a successor employer where:
1. An entire recognized unit, or a portion thereof, is transferred and the transferred employees: (a) are in an appropriate bargaining unit under § 7112(a)(1) 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.
Footnote # 9 for 62 FLRA No. 88 - Authority's Decision
"AFGE is not seeking review of the RD's findings as they relate to the nonprofessional employees." AFGE's Application at 4 note 1.
Footnote # 10 for 62 FLRA No. 88 - Authority's Decision
These factors are discussed in greater detail below.
Footnote # 11 for 62 FLRA No. 88 - Authority's Decision
We note, in this connection, that nothing in the RD's decision indicates that AFGE Local 2010 would be precluded from filing a new petition to represent professional employees, assuming that the appropriate showing of interest is established.