64 FLRA No. 71    

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS

GULF COAST VETERANS HEALTH CARE SYSTEM

BILOXI, MISSISSIPPI

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

 (Incumbent Labor Organization/Petitioner)

AT-RP-09-0015

_____

ORDER GRANTING IN PART AND DENYING IN PART

APPLICATION FOR REVIEW, AND REMANDING TO

REGIONAL DIRECTOR

January 29, 2010

_____

Before the Authority:  Carol Waller Pope, Chairman, and

Thomas M. Beck and Ernest DuBester, Members

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. 

AFGE filed a petition to clarify whether:  (1) the Veterans Affairs Gulf Coast Veterans Health Care System, Biloxi, Mississippi (VHCS) is a successor employer to the Veterans Administration Medical Center, Biloxi, Mississippi, Biloxi and Gulfport Divisions (VA Biloxi-Gulfport); and (2) the descriptions of AFGE’s nationwide consolidated units of employees of the Department of Veterans Affairs (VA) should be amended to state that AFGE is the exclusive representative of “all” nonprofessional and professional employees of the VHCS, including employees at the new Eglin Outpatient Clinic (Eglin) at the Eglin Air Force Base in Florida. 

The parties agreed that their stipulations would constitute the entire record in the proceeding.  RD Decision at 1 n.1.  Accordingly, the Regional Director (RD) found that the parties waived their rights to a hearing, and withdrew the previously issued Notice of Representation Hearing.  Id.

The RD determined that successorship principles did not apply, but amended the existing certifications to:  (1) reflect that the employing Agency’s name has changed to VHCS; and (2) delete references to the Gulfport Division, which no longer exists.  The RD found that the Eglin employees constitute an appropriate bargaining unit under the Federal Service Labor-Management Relations Statute (the Statute) and that these employees did not accrete into the AFGE’s existing nonprofessional and professional units.

For the following reasons, we deny the application in part, grant it in part, and remand to the RD for further findings.

II.        Background and RD’s Decision

As relevant here, AFGE is the certified representative of a nationwide consolidated unit of nonprofessional employees and a nationwide consolidated unit of professional employees of the Department of Veterans Affairs (VA).  RD Decision at 2.  VA Biloxi-Gulfport originally had divisions in Biloxi and Gulfport, Mississippi, and subsequently opened outpatient clinics in Mobile, Alabama, and Pensacola and Panama City, Florida.  Id. at 2-3.  Over the years, the Authority conducted elections and certified for inclusion in AFGE’s consolidated nonprofessional unit all nonprofessional employees of these divisions and outpatient clinics. [1]  Id. at 2-4.  The Authority also conducted elections and certified for inclusion in AFGE’s consolidated professional unit all professional employees of the Biloxi and Gulfport Divisions and all professional employees of the outpatient clinic in Panama City.  Id.  In addition, pursuant to an AFGE unit-clarification petition, the Authority amended the certification of the consolidated professional unit to include, without an election, professional employees of the outpatient clinics in Mobile and Pensacola.  Id. at 3.

In January 1999, VA Biloxi-Gulfport changed its name to VHCS.  Id.  However, the relevant unit descriptions continued to refer to VA Biloxi-Gulfport as the employing Agency.  Id. at 9-10. 

In 2005, Hurricane Katrina destroyed the Gulfport Division of VHCS.  Id. at 4.  Subsequently, all Gulfport Division employees, including all AFGE bargaining-unit employees, were relocated to the VHCS Biloxi Division, and the Gulfport Division closed.  Id. 

In 2008, VHCS opened Eglin.  Id. at 5.

In its petition, AFGE requested that its existing certification be amended to reflect that VHCS is a successor employer to VA Biloxi-Gulfport, and that unit descriptions of “[a]ll nonprofessional employees of [VHCS]” and “[a]ll professional employees of [VHCS]” be added to the current VA-AFGE nationwide consolidated units.  Id. at 6-7.  AFGE further asserted that, under its proposed unit descriptions, all professional and nonprofessional employees at Eglin should be automatically included in its consolidated nonprofessional and professional units because Eglin is part of VHCS.  Id. at 7.  VHCS agreed that it is a successor employer to VA Biloxi-Gulfport based on the name change, and that the certification should be amended to reflect its current name, but asserted that an election was necessary for employees at Eglin.  Id.

The RD stated that successorship “involves a determination of the status of a bargaining relationship between an agency or activity that acquires employees in a previously-existing bargaining unit pursuant to a reorganization, and a labor organization that exclusively represented those employees prior to their transfer.”  Id. (discussing the Authority’s successorship test as set forth in Naval Facilities Eng’g Serv. Ctr., Port Hueneme, Cal., 50 FLRA 363, 368 (1995) (Port Hueneme)).[2]  The RD stated that, although VA Biloxi-Gulfport changed its name to VHCS in January 1999, the name change was not accompanied by any “reorganization” or “reallocation of jurisdiction or territory serviced[.]”  RD Decision at 9.  Accordingly, the RD found that the “mere[] . . . name change” relied upon by the parties did not trigger successorship, and he rejected the parties’ stipulation that VHCS is a successor employer to VA Biloxi-Gulfport.  Id.

 

Although he found no successorship, the RD found that the Statute provides for the amendment of certifications to accommodate nominal or technical changes, and he issued amended certifications in which he designated VHCS as the employing Agency and deleted references to the closed Gulfport Division. [3]  Id. at 9-10 (citing 5 U.S.C. § 7111(b)(2); Dep’t of Def., Office of Dependents Educ., 15 FLRA 493 (1984) (DOD)).

In amending the certifications, the RD rejected AFGE’s argument that the new certifications should include “all” nonprofessional and professional employees of VHCS.  RD Decision at 10 n.3.  The RD stated that “historically, it is clear that all clinics and divisions of . . . [VHCS] have been certified separately, primarily through elections, even though each has been part of the system as a whole at the time of this certification.”  Id.  As a result, the RD rejected AFGE’s argument that employees at Eglin – which was established after the name change from VA Biloxi-Gulfport to VHCS – should be automatically included in the unit.  Id.  In this connection, the RD found that, at the time Eglin was established, the certifications “specifically delineated specific divisions and outpatient clinics[,]” and did not encompass all of VHCS.  Id.  As the Eglin employees do not fall within the express terms of the certifications, the RD found inapplicable the rule that “new employees are automatically included in an existing unit where their positions fall within the express terms of a bargaining unit certificate and where their inclusion does not render the bargaining unit inappropriate.”  Id. (citing Dep’t of the Army, Headquarters, Fort Dix, Fort Dix, N.J., 53 FLRA 287, 294 (1997) (Fort Dix)). 

The RD next found that Eglin employees could not be included in the unit through successorship because the majority of the Eglin employees were new hires, and therefore did not come from units in which AFGE was the exclusive representative.  RD Decision at 10.  The RD also found that the Eglin employees had not accreted to the AFGE unit.  According to the RD, for accretion to occur, it is necessary to find that the group of employees to be accreted:  “(1) do not constitute an appropriate separate bargaining unit on their own; (2) are not in positions that fall within the express language of the unit description; and (3) become functionally and administratively integrated into the pre-existing unit.”  Id. at 8-9.  Based upon the stipulations of the parties, the RD found that the Eglin employees occupy positions identical to, and perform substantially identical duties as, unit employees in Biloxi, Mobile, Panama City, and Pensacola.  Id. at 11.  The RD reasoned that “[s]ince the units in Biloxi, Mobile, Panama City and Pensacola have been certified and are each appropriate units, I find that the unit(s) at [Eglin] is also appropriate under the Statute.”  Id.  Therefore, the RD concluded, “the first prong of the accretion test fails and accretion does not apply[.]”  Id.

III.       Positions of the Parties

A.        Application for Review

           

            AFGE contends that, under § 2422.31(c)(3)(i) and (iii) of the Authority’s regulations, review of the RD’s decision is warranted on the following grounds:  (1) the RD failed to apply established law; and (2) the RD committed a clear and prejudicial error concerning a substantial factual matter.[4]  Application at 1. 

According to AFGE, the RD failed to consider reorganizations and transfers of VHCS employees when he found that successorship principles did not apply.  Id. at 4.  In this regard, AFGE argues that “the organizational movement of AFGE-represented employees” from VA Biloxi-Gulfport to VHCS constitutes a “transfer” for purposes of the successorship doctrine.  Id. at 4-5.  AFGE also argues that the “destruction and permanent closure of the Gulfport facility and the resultant transfer of Gulfport employees falls squarely within the definition of a ‘reorganization’” for purposes of successorship.  Id. at 5.  AFGE asserts that, at the time of each of these occurrences, it was the certified representative of all nonprofessional and professional employees at each of the Agency’s divisions and clinics.  Id. at 7.  According to AFGE, correctly updated certifications would reflect that VHCS is the successor employer of all employees in every VHCS division and clinic, and AFGE requests that the certifications be modified to include “all” VHCS employees.  Id.  As the Eglin employees would fall within the express terms of such certifications, AFGE contends that, under Fort Dix, Eglin employees should be included in the VHCS nonprofessional and professional units without an election.  Id. at 2-3, 7 n.5, 8 n.6.

AFGE argues that the RD’s refusal to apply successorship criteria also resulted in “inaccurate and obsolete unit descriptions.”  Id. at 6.  Specifically, according to AFGE, the RD failed to “perform a routine update of the descriptions to . . . reflect current statutory exclusions[,]” and to correct references to employee categories and divisions that no longer exist.  Id. 

AFGE further argues that the RD failed to apply established law when he found that the Eglin employees had not accreted to the consolidated units.  Id. at 8-9.  AFGE asserts that the RD failed to apply any of the three statutory criteria for determining the appropriateness of a unit under § 7112(a), and “instead relied upon the alleged appropriateness of other units for finding that an Eglin unit would be appropriate.”  Id.  In this connection, AFGE argues that the RD committed a clear and prejudicial error concerning a substantial factual matter when he asserted that units in Biloxi, Mobile, Panama City, and Pensacola are each appropriate units.  Id. at 9.  According to AFGE, “[t]hese units are components of AFGE’s professional and nonprofessional consolidated units, not separate, appropriate, stand-alone units.”  Id.  In a related argument, AFGE maintains that the RD’s “assertion that each of the units that now comprise . . . [VHCS] have been ‘separately certified’ is factually incorrect and constitutes a prejudicial factual error” because professional employees of the Mobile and Pensacola clinics were included in the professional unit through clarification, not through an election.  Id. at 9 n.8.

            B.        Opposition

In response to AFGE’s application for review, the Agency asserts that it “has no position one way or the other,” but that it would “like to merely point out a few of the stipulated facts.”  Opp’n at 1.  The Agency then repeats assertions from the parties’ stipulations, all of which appear in the RD’s Decision.  Id. at 1-4; RD Decision at 1-7.  The Agency also asserts that AFGE’s application for review “could be misconstrued to mean that the name change in 1999 took place as the result of Hurricane Katrina in 2005[,]” and clarifies that these events took place approximately six years apart.  Opp’n at 4.

IV.       Analysis and Conclusions

AFGE argues that the RD failed to apply established law and committed a clear and prejudicial error concerning a substantial factual matter with respect to his findings concerning successorship and accretion. 

A.        Successorship Doctrine and Unit Descriptions

  

The successorship doctrine applies 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 representation rights of employees who were transferred to the successor.  Port Hueneme, 50 FLRA at 368.  The RD correctly found that, for successorship to apply, there must be an “organizational movement of employees within an agency or between agencies[.]”   Def. Logistics Agency, Def. Supply Ctr. Columbus, Columbus, Ohio, 53 FLRA 1114, 1126-27 (1998) (DLA Columbus).  Despite AFGE’s characterization of the January 1999 name change as an “organizational movement,” there is no record evidence that any employees were transferred or otherwise organizationally moved when VA Biloxi-Gulfport changed its name to VHCS.  In these circumstances, we find that AFGE has not established that the RD failed to apply established law when he found that the name change was not a reorganization that required application of the Port Hueneme successorship test.

AFGE also argues that the closure of the Gulfport facility and the resulting transfer of Gulfport employees is a “reorganization” for purposes of successorship.  Application at 5.  Pursuant to the parties’ stipulations, the RD found that, following the closure of the Gulfport facility, “all employees whose duty location was the Gulfport Division, including all AFGE bargaining unit employees, were relocated to the [VHCS] Biloxi Division.”[5]  RD Decision at 4.  Even if the RD had found that this was a “transfer” for purposes of successorship and had proceeded to successfully apply the remaining successorship criteria under Port Hueneme,[6] AFGE provides no basis for finding that this transfer required the RD to amend the certifications to include, broadly, “[a]ll nonprofessional employees of [VHCS]” and “[a]ll professional employees of [VHCS].”  RD Decision at 6.  We note, in this connection, that the Authority has previously declined to replace a unit description specifically listing each of an agency’s regional subdivisions with a broader national-level certification where the only organizational change was the merger of two regional subdivisions.  See DOD, 15 FLRA at 494-96.  Thus, the transfer of Gulfport employees provides no basis for granting AFGE’s request to amend the certifications to include “all” VHCS employees.

For the foregoing reasons, we find that the RD did not fail to apply established law or commit a clear and prejudicial error concerning a substantial factual matter by declining to amend the certificates to include “[a]ll nonprofessional employees of [VHCS]” and “[a]ll professional employees of [VHCS].”  RD Decision at 6, 10 n.3.  In light of this finding, the Eglin employees are not automatically covered by the express terms of the certifications.  Therefore, we further find that the RD did not fail to apply established law or commit a clear and prejudicial error concerning a substantial factual matter by concluding that the automatic-inclusion principle of Fort Dix did not apply to the Eglin employees.[7]

B.        Accretion Analysis

Accretion involves the addition of a group of employees to an existing bargaining unit without an election based on a change in agency operations or organization.  See, e.g., U.S. Dep’t of the Interior, Bureau of Reclamation, Pac. Nw. Region, Grand Coulee Power Office, Wash. & Hungry Horse Field Office, Mont., 62 FLRA 522, 524 (2008).  Because accretion precludes employee self-determination, the accretion doctrine is narrowly applied.  DLA Columbus, 53 FLRA at 1125.  In deciding questions concerning accretion, the Authority is bound by the criteria for determining an appropriate unit as set forth in § 7112(a) of the Statute.  U.S. Dep’t of the Navy, Fleet & Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 963 (1997) (FISC); U.S. Dep’t of Def. Dependents Schools, 48 FLRA 1076, 1085 (1993) (DOD Schools).  Where the employees being considered for possible accretion into an existing unit constitute an appropriate separate bargaining unit on their own, the Authority will not apply accretion principles.  See FISC, 52 FLRA at 959 (“If it is determined that the . . . employees are not included in, and constitute a majority of employees in, a separate appropriate unit . . . , we will apply the Authority’s long-established accretion principles.”) (emphasis added and other emphasis removed); DOD Schools, 48 FLRA at 1085-88 (accretion of regional unit into worldwide unit not warranted so long as regional unit remained a separate appropriate unit). 

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 employees in the unit; (2) promote effective dealings with the agency involved; and (3) promote efficiency of the operations of the agency involved.  See, e.g., FISC, 52 FLRA at 959.  In making unit determinations under § 7112(a), the Authority examines the factors presented on a case-by-case basis.  Id. at 960.  The Authority has set forth a wide variety of factors to be considered with respect to each of the three criteria, but has not specified the weight of individual factors necessary to establish an appropriate unit.  U.S. Dep’t of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328, 333 (2000) (Naval Base, Norfolk) (Chairman Wasserman concurring in part and dissenting in part). 

In assessing the first criterion – that employees share a clear and identifiable community of interest – the Authority examines such factors 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 and labor relations policies that are administered by the same personnel office.  FISC, 52 FLRA at 960-61.  In addition, factors such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation may be relevant.  Id. at 961. 

In assessing the effective-dealings 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.  Id.  Factors to be examined in assessing efficiency of agency operations pertain to the effect of the proposed unit on agency operations in terms of cost, productivity, and use of resources.  Id. at 962.

The RD stated that because “the units in Biloxi, Mobile, Panama City and Pensacola have been certified and are each appropriate units, . . . the unit(s) at [Eglin] is also appropriate under the Statute[,]” given the similarities between the positions and duties of the employees in those respective units.  RD Decision at 11.  The RD then concluded that the Eglin employees could not properly be accreted into the VHCS units.  Id.  Thus, the RD assessed whether the Eglin employees constituted a separate appropriate unit based solely on their similarity to employees in other separately certified units. 

As an initial matter, the premise of the RD’s appropriate-unit determination – that the other units are “each appropriate units” – is not entirely correct.  As the RD acknowledged in his factual findings, the professional employees of the Mobile and Pensacola clinics were included in the consolidated professional unit through clarification, not through an election, and there is no indication in the record that they were certified as separate appropriate units.  Id. at 3.  In this regard, the record indicates that the Mobile and Pensacola professional employees were included in the bargaining unit by accretion.  See Jan. 12, 1996 RD Decision at 9. 

More importantly, the RD failed to examine each of the requisite statutory criteria in determining that the Eglin employees constitute a separate appropriate unit.  Further, the record does not provide a sufficient basis for the Authority to determine whether the Eglin employees constitute a separate appropriate unit.  Because the RD did not conduct a hearing, the record before us is limited to the stipulations of the parties.  RD Decision at 1 n.1.  Although the stipulations include information about the Eglin employees’ mission and positions, and the organizational level at which personnel and labor relations are handled for Eglin employees, the parties’ stipulations do not sufficiently address the variety of additional factors set forth above that the Authority may consider in appropriate unit determinations.  See RD Decision at 1-6; Stipulation of Facts at 1-6; Amended Stipulation of Facts at 1.  See also, FISC, 52 FLRA at 960-62 (discussing factors examined by the Authority for each of the three appropriate-unit criteria).  In similar circumstances, the Authority has remanded to the RD for further findings.  See, e.g., Naval Base, Norfolk, 56 FLRA at 334-36.

For the foregoing reasons, we grant AFGE’s application for review in part on the ground that the RD failed to apply established law by failing to consider the requisite statutory criteria when analyzing whether the Eglin employees constitute a separate appropriate unit, and we remand to the RD to assess whether the Eglin employees constitute a separate appropriate unit under § 7112(a).  If, on remand, the RD determines that the Eglin employees constitute a separate, appropriate unit, then they may not be accreted to the existing unit.  See FISC, 52 FLRA at 959.      

IV.       Order

            We deny the application with regard to the RD’s application of the successorship doctrine, refusal to adopt AFGE’s proposed unit descriptions in the amended certifications, and conclusion that the automatic-inclusion principle of Fort Dix did not apply to the Eglin employees.  We grant the application with regard to the question of whether the Eglin employees constitute a separate appropriate unit under § 7112(a), and remand that issue to the RD for appropriate action consistent with this Order.[8]

 

APPENDIX

The RD decision provides, in pertinent part:

7.                  On September 21, 1987, . . . after conducting an election, the . . . Authority . . . certified for inclusion in the existing [VA-AFGE] consolidated professional unit the following unit of employees:

Included:         All professional employees of the Biloxi and Gulfport Divisions of the Veterans Administration Medical Center, Biloxi, Mississippi.

Excluded:        All non-professional employees, supervisors, management officials, and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).

8.                  On February 23, 1995, . . . after conducting an election, the . . . Authority . . . certified for inclusion in the existing [VA-AFGE] consolidated nonprofessional unit the following unit of employees:

Included:         All nonprofessional employees, including temporary whose appointments exceed 90 days, who are employed at the VA Pensacola Outpatient Clinic, Pensacola, Florida.

Excluded:        All professional employees, supervisors, management officials, and employees as defined in 5 U.S.C. 7112(b)(2), (3), (4), (6), and (7).

9.                  On January 12, 1996, . . . the Atlanta Regional Director of the FLRA certified for inclusion in the existing [VA-AFGE] consolidated professional unit and clarified the unit . . ., without conducting an election, as follows:

Included:         All non-supervisory professional employees of Biloxi and Gulfport Divisions of the Department of Veterans Affairs, Biloxi, Mississippi and the Outpatient Clinics of Mobile, Alabama and Pensacola, Florida.

Excluded:        All non-professional employees, supervisors, management officials, and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).

* * *

12.              On June 29, 1999, . . . after conducting an election, the Atlanta Regional Director included the following group of employees in the existing [VA-AFGE] consolidated nonprofessional unit . . . :

Included:         All nonprofessional employees of the Department of Veterans Affairs, Outpatient Clinic, Mobile, Alabama.

Excluded:        All professional employees, management officials, supervisors, and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).

13.              On March 19, 2001, . . . the existing [VA-AFGE] consolidated nonprofessional unit . . . was clarified and the resulting unit description includes, as pertinent to this petition, the following:

All non-professional employees at psychiatry division of Veterans Administration Center, Biloxi, Mississippi, Gulfport Division, excluding professional employees of the Gulfport Division, all supervisors, management officials, and personnel engaged in Federal personnel work in other than a purely clerical capacity.

All GM and S Service non-professional employees at the Veterans Administration Center, Biloxi, Mississippi, excluding professional employees, supervisors, management officials, and personnel engaged in Federal personnel work in other than a purely clerical capacity.

14.              On October 17, 2002, . . . after conducting an election, the Atlanta Regional Director included the following group of employees in the existing [VA-AFGE] consolidated unit of professional employees . . . :

Included:         All professional employees of the Department of Veterans Affairs, Veterans Affairs Outpatient Clinic, Panama City, Florida.

Excluded:        All nonprofessional employees, supervisors, management officials, and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).

15.              On October 17, 2002, . . . after conducting an election, the Atlanta Regional Director included the following group of employees in the existing [VA-AFGE] consolidated unit of nonprofessional employees . . . :

Included:         All non-professional employees of the Department of Veterans Affairs, Veterans Affairs Outpatient Clinic, Panama City, Florida.

Excluded:        All professional employees, supervisors, management officials, and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).

RD Decision at 2-4.