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62 FLRA No. 95
SOCIAL SECURITY ADMINISTRATION
OFFICE OF DISABILITY ADJUDICATION
AND REVIEW
FALLS CHURCH, VIRGINIA
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO
(Petitioner/Labor Organization)
and
NATIONAL TREASURY
EMPLOYEES UNION
(Petitioner/Labor Organization)
WA-RP-06-0068
WA-RP-07-0009
WA-RP-07-0032
_____
ORDER GRANTING
APPLICATION FOR REVIEW
AND REMANDING
TO REGIONAL DIRECTOR
July 11, 2008
______
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, 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 (AFGE) under § 2422.31 of the Authority's Regulations. [n1] Neither the Agency nor the National Treasury Employees Union (NTEU) filed an opposition to AFGE's application for review.
The Regional Director (RD) determined that the fifty-four professional employees of a new component of the Social Security Administration (the Agency) constituted an appropriate bargaining unit under the Federal Service Labor-Management Relations Statute (the Statute) and directed an election.
As explained below, we grant the application for review on the ground that there is a genuine issue over whether the RD failed to apply established law pursuant to § 2422.31(c)(3)(i), and we remand this matter to the RD to apply established law consistent with this decision.
II. Background and RD's Decision
As relevant here, AFGE is the certified representative of a professional unit that includes the professional employees assigned to the Agency's "Office of Hearings and Appeals [OHA] in its Headquarters in the Washington Metropolitan Area." RD's Decision at 2. On March 30, 2006, the Agency established the Office of Disability Adjudication and Review (ODAR) to replace the OHA. ODAR headquarters is in Falls Church, Virginia.
In April 2006, the Office of the Federal Reviewing Official (OFRO) was established as a component of ODAR at ODAR's Falls Church headquarters as part of an initiative to improve the accuracy, consistency, and timeliness of disability determinations. The positions at OFRO were filled by selection under competitive vacancy announcements. Of the fifty-four professional employees selected, seven had been in AFGE's existing unit, five had been in a unit represented by NTEU, [n2] and the other forty-two had been in non-unit positions in the Agency or were new hires. Id. at 4.
NTEU filed a petition seeking an election among the fifty-four professional employees. AFGE filed the petitions at issue here, asserting that it represented the OFRO professional employees under the Authority's successorship doctrine and requesting that its existing certification be amended to reflect that ODAR had replaced OHA. In its post-hearing brief to the RD, AFGE asserted that ODAR professional employees [ v62 p514 ] were automatically included in its existing professional unit because they were within the express definition of the existing certification. For support, AFGE cited Department of the Army, Headquarters, Fort Dix, Fort Dix, New Jersey, 53 FLRA 287, 294 (1997) (Fort Dix). By contrast, the Agency asserted that the employees were unrepresented and that the Authority should conduct an election.
The RD rejected the application of Fort Dix, finding that the principles of Fort Dix "do[] not apply in a case involving the successorship doctrine." Id. at 5. The RD concluded that this case involved the successorship doctrine because "a new entity [was] established and the work force [was] comprised of employees who came from existing bargaining units[.]" Id. [n3] Accordingly, the RD applied the test for successorship set forth in Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363, 368 (1995) (Port Hueneme). [n4] In this connection, the RD found that the newly hired employees who came from existing units were transferred to a new entity within the meaning of Port Hueneme and that they composed an appropriate unit under § 7112(a) of the Statute. In finding that the employees were transferred, the RD explained that the term "transfer" is a generic reference to the movement of employees within an agency, regardless of the method of reorganization, and includes hired employees. Accordingly, the RD ruled that whether employees are transferred to, or hired by, the new entity makes no difference for purposes of the successorship doctrine. Id. at 7 n.6.
The RD then determined that neither AFGE nor NTEU represents a majority of the fifty-four professional employees. Accordingly, the RD directed an election among the professional employees of OFRO to determine whether they wish to be represented by AFGE or NTEU. At the same time, the RD ordered AFGE's certification amended to reflect that ODAR has replaced OHA.
III. AFGE's Application for Review
AFGE contends that review of the RD's decision is warranted on the following grounds: (1) the RD failed to apply established case law; (2 the RD committed prejudicial error; and (3) the RD committed a clear and prejudicial error concerning a substantive factual matter. According to AFGE, the RD failed to apply established law when he failed to apply Fort Dix. AFGE further argues that the RD committed clear and prejudicial error by failing to acknowledge that the positions encumbered by the OFRO professional employees are all included in AFGE's existing professional unit, which the RD directed be clarified to indicate that OHA is now ODAR. AFGE also argues that the RD erred by applying Port Hueneme because OFRO is not a new entity, and that the RD erroneously applied the appropriate unit criteria to OFRO, rather than ODAR, and when those criteria are applied to ODAR, the unit in which he directed an election would not be separately appropriate. In addition, AFGE maintains that including the OFRO professional employees in its existing professional unit would not render it inappropriate. Accordingly, AFGE requests that the Authority reverse the RD's decision, vacate the direction of an election, and find that AFGE is the exclusive representative of the OFRO professional employees under the plain language of the existing certification.
IV. Analysis and Conclusions
Under § 2422.31(c)(3)(i) of the Authority's Regulations, the Authority may grant review when an application demonstrates that review is warranted because there is a genuine issue over whether the RD has failed to apply established law. In directing an election, the RD held that the automatic inclusion principle of Fort Dix did not apply because this case involves the successorship doctrine. Id. at 5. For the reasons that follow, we conclude instead that the successorship doctrine does not apply because Fort Dix does. Accordingly, the RD erred in failing to apply Fort Dix.
It is well established that "new employees are automatically included in an existing unit where their positions fall within the express terms of a unit certification and their inclusion would not render the unit inappropriate." United States Dep't of the Navy, Human Resources Serv. Ctr. Northwest, Silverdale, Wash., 61 FLRA 408, 412 (2005) (Navy) (citing Fort Dix). The Authority previously has held that the Fort Dix principles apply not only to new employees hired into previously existing positions, but also to employees in newly [ v62 p515 ] created positions that fall within the express terms of the existing certification. See United States Dep't of Def., Def. Logistics Agency, Def. Supply Ctr. Columbus, Columbus, Ohio, 60 FLRA 523 (2004), application for review dismissed, 60 FLRA 974 (2005).
As the RD found, AFGE's certified bargaining unit includes all of the Agency's professional employees assigned to "the [OHA] in its Headquarters in the Washington Metropolitan Area . . . ." RD's Decision at 2. In addition, the RD ordered the certification amended to reflect that OHA is now ODAR. Consistent with that order, AFGE's certification now includes all of the Agency's professional employees assigned to the ODAR in its headquarters in the Washington metropolitan area, specifically its headquarters in Falls Church, Virginia.
There is no dispute that the employees at issue are professional employees who work for OFRO, and that OFRO is a component of ODAR. There also is no dispute that the employees work in ODAR's Washington metropolitan area headquarters in Falls Church. Thus, the employees fall within the express terms of AFGE's certification, as amended, and should be included in AFGE's unit unless their inclusion would render the unit inappropriate. [n5] See Navy, 61 FLRA at 412.
The RD ruled that the automatic inclusion principle of Fort Dix did not apply because this case involves the successorship doctrine. RD's Decision at 5 (citing Soc. Sec. Admin., Kissimmee Dist. Office, Kissimmee, Fla., 62 FLRA 18, 23 (2007) (SSA, Kissimmee)). We conclude that the RD misinterpreted the decision in SSA, Kissimmee in rejecting the application of Fort Dix.
The RD correctly noted that the Authority held in SSA, Kissimmee, that the automatic inclusion principle of Fort Dix "does not apply in the case of claimed successorship[.]" SSA, Kissimmee, 62 FLRA at 23. However, the RD failed to note the Authority's explanation that the successorship doctrine applies to determine whether the transferred employees "retain their representative even though the existing certificate does not reference that entity." Id. (emphasis added). As such, the Authority clarified that if successorship is found, then the unit certification is amended to acknowledge the successorship. Thus, SSA, Kissimmee merely reaffirmed that when employees are "automatically" included in a unit because they are covered by an existing certificate, a successorship analysis, which results in amendment of a certification, is not necessary. Id. Accordingly, the RD erred in concluding that Fort Dix did not apply because successorship did. Instead, the successorship doctrine does not apply because the automatic inclusion principle of Fort Dix does. See id.
Because he did not apply Fort Dix, the RD did not determine whether including the OFRO professional employees in AFGE's existing professional unit would render the unit inappropriate. Instead, he assessed whether a bargaining unit consisting only of the fifty-four professional employees of OFRO would be appropriate, and he determined that it would. Accordingly, we remand the petition to the RD to make appropriate findings under Fort Dix and decisions relied upon therein. See, e.g., Fort Dix, 53 FLRA at 296 (citing United States Dep't of the Treasury, Bureau of Engraving & Printing, 49 FLRA 100, 106-08 (1994); Library of Congress, 16 FLRA 429, 431 (1984)).
V. Order
We grant the application for review. [n6] The case is remanded to the RD for further action consistent with this decision.
Footnote # 1 for 62 FLRA No. 95 - Authority's Decision
Section 2422.31 of the Authority's Regulations provides, in pertinent part:
(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. 95 - Authority's Decision
NTEU represents separate, consolidated units of professional and non-professional employees employed in various ODAR regional and hearing offices outside ODAR headquarters.
Footnote # 3 for 62 FLRA No. 95 - Authority's Decision
Alternatively, the RD concluded that "[e]ven if the Fort Dix principle was applied to the [OFRO] employees, they would not be automatically added to the existing AFGE units as the existing certifications make no mention of [OFRO]." RD's Decision at 5 n.5.
Footnote # 4 for 62 FLRA No. 95 - Authority's Decision
Under the Port Hueneme test, a new entity is a successor, and the union retains its status as the exclusive representative of employees employed by the successor, when: (1) an entire recognized unit, or a portion of a recognized unit, is transferred, and the transferred employees: (a) are in an appropriate bargaining unit under § 7112(a) of the Statute after the transfer; and (b) constitute a majority of the employees in the unit; (2) the new entity has substantially the same duties and functions under substantially similar working conditions in the new entity; and (3) it has not been demonstrated that an election is necessary to determine representation. Port Hueneme, 50 FLRA at 368.
Footnote # 5 for 62 FLRA No. 95 - Authority's Decision
Because the employees fall within the express terms of AFGE's certification, as amended, the RD's alternative reliance on OFRO not being mentioned in AFGE's certification is misplaced.
Footnote # 6 for 62 FLRA No. 95 - Authority's Decision
In view of this decision, we do not address the other grounds on which AFGE asserted that review was warranted.