46:0502(46)RP - - Defense Mapping Agency, Aerospace Center, St. Louis, MO and NFFE Local 1827 - - 1992 FLRAdec RP - - v46 p502
[ v46 p502 ]
The decision of the Authority follows:
46 FLRA No. 46
FEDERAL LABOR RELATIONS AUTHORITY
DEFENSE MAPPING AGENCY
ST. LOUIS, MISSOURI
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
ORDER DENYING APPLICATION FOR REVIEW
November 9, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This consolidated case is before the Authority on an application for review filed by the Petitioner (Union) under section 2422.17(a) of the Authority's Rules and Regulations. The Union seeks review of the Decision and Order of the Regional Director (RD) on Petitions for Clarification of Unit (CU) concerning over 300 employees who were transferred from the Defense Mapping Agency (DMA), Aerospace Center (AC) to four other DMA activities as a result of a DMA-wide reorganization. The RD found that the employees are part of four functionally distinct groups of employees who do not share a community of interest with the employees in the Union's existing unit and whose inclusion in the existing unit would not foster effective dealings or efficiency of DMA's operations. Therefore, the RD found that the employees should be excluded from the unit. The Activity did not file an opposition to the Union's application for review with the Authority.(1) For the reasons set forth below, we deny the Union's application.
II. Background and Regional Director's Decision
The Union is the exclusive representative of a bargaining unit that, prior to October 1, 1990, included over 1200 bargaining unit members. The unit includes "[a]ll non-professional employees of the Defense Mapping Agency Aerospace Center who are located in the St. Louis, Missouri area" and excludes "[p]rofessional employees, management officials, supervisors, and employees described in 5 U.S.C. [§] 7112(b)(2), (3), (6), and (7)." RD's Decision at 1-2 (footnote omitted). On October 1, 1990, a DMA-wide reorganization took effect. Among other things, the reorganization resulted in the transfer of over 300 AC employees who were members of the bargaining unit to other DMA components. The Union filed petitions under section 7111(b)(2) of the Federal Service Labor-Management Relations Statute (the Statute) seeking to clarify the unit to include those former AC employees in the unit. Specifically, the petitions sought to include in the unit certain nonprofessional employees of DMA's Office of Human Resource Management (HR), Office of Acquisition, Installations and Logistics (AIL), Office of the Comptroller (CM), and Technical Service Center (TSC) who remain at the AC's facilities in St. Louis, Missouri.
The HR, AIL, and CM were established as the result of the reorganization and include approximately 93 former bargaining unit AC employees. The TSC was expanded as a result of the reorganization and includes approximately 242 former bargaining unit AC employees. "[A]side from the employees at issue [in this case], no employees of the HR, AIL, CM or TSC are otherwise represented by a labor organization." Id. at 3 n.3.
The RD found that, through the reorganization, the DMA Director established five DMA-wide Support Offices, including HR, AIL, and CM, in an effort to increase the efficiency of DMA's operations by consolidating and streamlining certain DMA support service functions, in order to eliminate operational redundancies and to provide these services on a balance basis to all DMA components. The RD further found that, as relevant here, the "overall effect" of establishing HR, AIL, and CM was "to disestablish organizational elements within pre-existing DMA components, including the AC, . . . and to centralize such functions in these DMA Headquarters based Support Offices. These Support Offices have chains of command which have no commonality with each other or with those of the other existing DMA components (including that of the AC) below the DMA Director's level." Id. at 3. The RD noted that each newly established support office is "headed by a Director, who is the organizational equal of the other DMA component Directors, and who reports to the DMA Director." Id. The RD further found that in addition to establishing these DMA-wide servicing components, the DMA reorganization had the effect of enlarging the mission of an existing DMA component, the TSC.
The RD concluded that "a major consequence of the reorganization" was "to transfer [certain] operational functions, and the employees performing these functions, from existing DMA components, including the AC, to [DMA]-wide servicing organizations with chains of command separate from, and independent of, the other DMA components (below the level of the DMA Director)." Id. at 7-8. With respect to the AC, the RD found:
[A]lthough the reorganization did not result in any substantial physical relocation of employees who were organizationally reassigned out of the AC, such employees and their organizational functions are no longer within the direct control or supervision of the AC. Instead, the AC now must obtain the functional services provided by these employees by going through the separate chains of command which exist for HR, AIL, CM, and TSC. In this connection, the record fails to establish that there is any mission overlap among HR, AIL, CM, TSC, and AC.
Id. at 8 (footnote omitted).
Further, the RD found the following with respect to conditions of employment of employees of HR, AIL, CM, TSC, and AC:
While conditions of employment for the employees of each of these five DMA components are generally based on DMA-wide personnel policies, the manner in which such policies are applied at each component, to the extent that they provide for flexibility, is independently established at each component by the individual Component Director and his subordinate chain of command. Thus, each component chain of command individually and separately determines for their respective component (including any St. Louis sub-part) such matters as organizational structure; numbers, types, and grades of positions; assignment of work; methods and means by which work is performed; budgeting and expenditure of component funds; and policies regarding employee hours of work, including flexitime and compressed work schedules. In addition, each of these component chains of command separately and independently exercises the authority in their respective components (including any St. Louis sub-part) to: approve employee leave, overtime and compensatory time requests; establish employee performance standards; decide employee administrative grievance and performance appraisal appeals; impose employee discipline; recommend and approve employee incentive awards; act as selecting/approving officials for employee promotions; determine employee training needs; and resolve employee Equal Employment Opportunity complaints. Moreover, each of these Component Directors retains the sole, separate authority to set the labor relations policy within his/her respective component, as well as to recognize and bargain with an exclusive representative. While St. Louis-located employees of HR, AIL, CM and TSC share certain common services and facilities, such as parking, credit union privileges, and cafeteria access with the co-located AC employees, there is no clear evidence of employee interchange subsequent to the reorganization between the AC and the other aforementioned DMA component activities located in St. Louis. At the same time, the record indicates that there has been employee interchange within each of the other subject DMA components. Similarly, the single RIF [reduction-in-force] competitive area for HR, AIL, and CM employees located in St. Louis, which was first established and utilized as part of the October 1, 1990 DMA reorganization, is separate from the AC's RIF competitive area. TSC employees in St. Louis also have a RIF competitive area separate from AC employees.
The RD found that under these circumstances, "the subject employees of the St. Louis subcomponents of the HR, AIL, CM and TSC do not share a community of interest with the AC employees in the existing AC unit represented by the [Union] and have not accreted to that unit." Id. Rather, the RD found that as a result of the reorganization, "the HR, AIL, CM, and TSC employees who were reassigned to these DMA components from the AC are now each part of different organizational chains of command, are subject to the separate and distinct missions of their parent DMA components, and are no longer part of the AC." Id. at 9. In this regard, the RD found that: (1) the employees of each of these other DMA components are under separate chains of command apart from the AC instead of being ultimately answerable to the AC; (2) the specific work areas and functions of St. Louis-based HR, AIL, CM, and TSC employees are separate from those of AC employees; (3) implementation of general personnel policies, practices, and working conditions for HR, AIL, CM, and TSC employees co-located in St. Louis with AC unit employees are controlled by the respective local managements of those organizations and their parent Headquarters; (4) the AC Director now has no control over the functions and employees which were transferred to HR, AIL, CM, and TSC; and (5) the AC Director now has no authority to speak for the HR, AIL, CM, and TSC managers or to negotiate on matters affecting the employees of these other DMA components. Therefore, the RD found that "to include St. Louis-based employees of HR, AIL, CM and TSC in the same unit with AC employees would not promote effective dealings or efficiency of agency operations." Id.
In view of the foregoing, the RD found that "St. Louis-based employees of the HR, AIL, CM and TSC constitute functionally distinct groups of employees, that these groups share communities of interest separate and distinct from the AC employees in the existing . . . unit, and that their inclusion in the existing AC unit would not foster effective dealings or efficiency of agency operations." Id. Citing the Authority's decisions in United States Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 11 FLRA 591 (1983) (Naval Avionics Center) and Department of Defense, Department of Navy, U.S. Naval Ordnance Station, Louisville, Kentucky, 6 FLRA 480 (1981) (Naval Ordnance Station), the RD dismissed the Union's petitions.
III. Application for Review
The Union contends that the RD improperly dismissed the Union's petitions. The Union asserts that the RD's decision is inconsistent with the intent of Congress as embodied in the Statute to ensure that "employees have the fullest freedom" in exercising their rights under the Statute. Application at 4. According to the Union, the RD erred in focusing on "the differences in the working conditions/conditions of employment of the contested employees . . . ." Id. at 3. The Union contends that section 7112 of the Statute "does not preclude employees attached to different components of an agency from having a definable community of interest based entirely on the fact of their co-location at a particular place." Id. at 4.(2) The Union asserts that "an agency[-]wide unit as well as a nation[-]wide unit would be inappropriate for the employees in the contested centers and functions due not in least part because of the near impossibility of effectively organizing them" and that "a decision that mandates a nation[-]wide unit de facto mandates that the employees will not be organized and will not have any freedom - let alone 'the fullest freedom' to exercise their rights under" the Statute. Id. at 5-6.
The Union contends that the RD's decision incorrectly emphasizes "efficiency of operations" over "fullest freedom" and "injects instability in a previously stable labor-management relationship; sanctions the withdrawal of representation rights from employe[e]s and incorrectly place[s] the (speculated) well[-]being of the employer before the proven well[-]being of employees." Id. at 6 (emphases deleted). Additionally, the Union argues that "for the Authority to find that a greater community of interest exists among groups of employees that are dispersed to various locations across the country than with employees with [whom] they are co-located at one site ignores the day to day reality experienced by employees." Id. at 6-7.
Further, the Union submits that, consistent with the intent of the Statute, "in the instant case and all such similar cases the presumption of a community of interest should go to employees left in situs and the employer should have to move forward to the Authority to alter the status of employees from protected to unprotected." Id. at 8 (emphasis deleted). The Union contends that, under this approach, employees would not be left unrepresented after an agency reorganization and "the Statute amply provides for the employer[']s right to efficiency of operations by providing the employer the option of petitioning for decertification /clarification of unit if the new (reconstituted) unit is demonstrably unworkable/unmanageable." Id.
Finally, the Union contends that although the RD determined that the contested employees did not belong in the existing unit, she did not address the question of what unit was appropriate. The Union asserts that "as a practical matter locality[-]based units are appropriate." Id. at 10. In support of this contention, the Union contends that such units "would advance the 'fullest freedom' mandate of the Statute since they would be . . . easier to organize than [DMA-]wide units" and DMA has experience with consolidated or co-located units currently. Id.
IV. Analysis and Conclusions
We conclude that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the Union's application for review. The Union's application expresses nothing more than disagreement with established Authority precedent and the Regional Director's application of this precedent to the facts of this consolidated case.
In determining whether employees should be included in a bargaining unit, the Authority is bound by the criteria for determining the appropriateness of a bargaining unit set forth in section 7112(a)(1) of the Statute. The Authority may determine that a unit is appropriate only if the determination will: (1) ensure a clear and identifiable community of interest among the employees in the unit; and (2) promote effective dealings with, and efficiency of the operations of, the agency involved. In making determinations under section 7112(a)(1), the Authority examines the factors presented on a case-by-case basis. The Authority has not specified individual factors or the number of such factors needed to conclude that groups of employees share a clear and identifiable community of interest. See Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245, 1254 (1992).
The RD in this case considered the criteria set forth in section 7112(a)(1). The RD found that as a result of the DMA-wide reorganization the employees transferred to the HR, AIL, CM, and TSC "constitute functionally distinct groups of employees, that these groups share communities of interest separate and distinct from the AC employees in the existing . . . unit, and that their inclusion in the existing unit would not foster effective dealings or efficiency of [DMA's] operations." RD's Decision at 9.
Based on the findings of the RD and the reasons given by her, we find that, as a result of the DMA-wide reorganization, the employees transferred from AC to HR, AIL, CM, and TSC do not share a community of interest with the employees in the existing AC unit.(3) See, for example, U.S. Small Business Administration, 34 FLRA 392, 399 (1990); Naval Avionics Center; Naval Ordnance Station. We also find that including the transferred employees in the Union's existing AC unit would not promote effective dealings with DMA and the efficiency of DMA's operations. In our view, the Union's application expresses mere disagreement with the RD's findings of fact and application of Authority precedent and, as such, provides no basis for granting review of the RD's decision. For example, U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, Allen Park, Michigan, 43 FLRA 264, 266 (1991).
Further, the Union's contention that the RD's application of section 7112(a)(1) of the Statute is inconsistent with Congress' intent in enacting that provision of the Statute provides no basis for granting the application for review. The RD's application of the criteria set forth in section 7112(a)(1) of the Statute is consistent with Authority precedent. The Union has not demonstrated that the Authority's long-standing application of section 7112(a)(1) in determining the appropriateness of units or the RD's application of section 7112(a)(1) in the instant case is inconsistent with Congressional intent. See, for example, U.S. Small Business Administration; Naval Avionics Center, Naval Ordnance Station. Rather, the Union's contention constitutes nothing more than disagreement with the Authority's precedent regarding application of the criteria set forth in section 7112(a)(1) and with the RD's determination in this case.
We note the Union's contention that "locality based units are entirely appropriate" and are "easier to organize than Agency wide units." Application at 10. The ease of organizing employees is not relevant when determining the appropriateness of units under section 7112(a)(1). In addition, although geographical proximity of employees is relevant in determining the appropriateness of units under section 7112(a)(1), in the circumstances of this case the importance of co-location has been overcome by other factors discussed by the RD. See, for example, Naval Avionics Center, 11 FLRA at 592 (reassigned employees were found to no longer share a community of interest with employees in the existing unit although the employees shared facilities such as parking and cafeteria). Accordingly, these contentions provide no basis warranting reconsideration of an Authority policy.
Finally, we note the Union's contention that the RD failed to determine what unit was appropriate for the contested employees. This contention provides no basis for granting the application for review. The RD resolved the only question properly before her in the Union's CU petitions: whether the employees transferred to HR, AIL, CM, and TSC should be included in the existing unit of AC employees. See, for example, Federal Trade Commission, 35 FLRA 576, 583 (1990). To the extent that the Union is arguing that its application should be granted because the RD should have determined which unit or units are appropriate for the employees transferred to HR, AIL, CM, and TSC who were excluded by the RD from the Union's existing AC unit, we reject this contention. We note that nothing in this decision precludes the Union from "seeking certification as exclusive representative of any appropriate unit of employees resulting from the [a]gency's reorganization through the filing of an appropriate petition for an election." Defense Contract Audit Agency, 6 A/SLMR 251, 252 n.7 (1976).
The application for review is denied.
(If blank, the decision does not have footnotes.)
1. Under section 2422.17(d) of the Authority's Regulations, any opposition to an application for review must be filed with the Authority and a copy of the opposition must be served on, among other parties, the Regional Director. Although the RD's file in this case contains a copy of an opposition to the application for review served on the RD by the Activity, the certificate of service on that copy does not reflect that an opposition was filed with the Authority. Further, nothing in the Authority's records indicates that the Activity ever filed an opposition to the application for review in the Authority's Docket Room in Washington, D.C. See U.S. Department of the Navy, Naval Computer and Telecommunications Command, Headquarters, Washington, D.C. and American Federation of Government Employees, Local 1, 42 FLRA 1265 (1991) (any document filed with the Authority must be filed in the Authority's Docket Room in Washington, D.C. and parties filing documents with the Authority are responsible for being knowledgeable of the statutory and regulatory filing requirements). Because the document was not filed with the Authority, we will not consider it.
2. Section 7112(a)(1) of the Statute provides:
The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of, the agency involved.
3. The RD stated that the Union was asserting, "in essence, that [the contested] employees have accreted into [the Union's] existing AC unit as a result of" the DMA-wide reorganization. RD's Decision at 2. We do not view the issue in this case as one of accretion. Rather, the issue presented by the Union's petitions is whether, under section 7112(a)(1) of the Statute, certain former AC unit employees who have been