50:0026(7)CU and RA - - Naval Facilities Engineering Service Center, Port Hueneme, CA and NAGE Local R12-28; Naval Facilities Engineering Center and NAGE, FUSE, Local R12-196 - - 1994 FLRAdec RP - - v50 p26



[ v50 p26 ]
50:0026(7)CU
The decision of the Authority follows:


50 FLRA No. 7

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NAVAL FACILITIES ENGINEERING SERVICE

CENTER, PORT HUENEME, CALIFORNIA

(Activity)

and

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R12-28

(Petitioner/Labor Organization)

SF-CU-40012

SF-CU-40020

____

NAVAL FACILITIES ENGINEERING SERVICE

CENTER, PORT HUENEME, CALIFORNIA

(Activity)

and

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, FUSE, LOCAL R12-196

(Petitioner/Labor Organization)

SF-CU-40013

_____

NAVAL FACILITIES ENGINEERING SERVICE

CENTER, PORT HUENEME, CALIFORNIA

(Petitioner/Activity)

and

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R12-28

(Labor Organization)

SF-RA-40030

SF-RA-40031

_____

NAVAL FACILITIES ENGINEERING SERVICE

CENTER, PORT HUENEME, CALIFORNIA

(Petitioner/Activity)

and

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, FUSE, LOCAL R12-196

(Labor Organization)

SF-RA-40032

_____

ORDER GRANTING APPLICATION FOR REVIEW

November 18, 1994

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This case is before the Authority on an application for review filed by the National Association of Government Employees (NAGE or Union), on behalf of NAGE, Local R12-28, and NAGE, Federal Union of Scientists and Engineers, Local R12-196, under section 2422.17(a) of the Authority's Rules and Regulations. The Activity filed an opposition to the application for review. For the reasons set forth below, we grant NAGE's application for review, in part, and deny it in part.

II. Background and Acting Regional Director's Decision

NAGE filed clarification of unit (CU) petitions requesting that certain recognized bargaining units be clarified to include employees who it claimed had accreted to the units as a result of a reorganization. The Activity filed representative status (RA) petitions challenging the continued appropriateness of the units for which NAGE sought clarification.

Prior to October 1993, the employees of the Naval Civil Engineering Laboratory (NCEL) were represented in three bargaining units. NAGE, Local R12-28 was the recognized representative of a unit consisting of all nonprofessional GS employees of NCEL and a separate unit of all WG employees of NCEL, Port Hueneme, California. Both units were recognized in 1971, and were covered by the same collective bargaining agreement (CBA) which was executed on June 11, 1986. NAGE, FUSE, Local R12-196 was the recognized representative of a unit consisting of all professional employees of NCEL, Port Hueneme, California. The professional unit was recognized in 1978, and was covered by a CBA which was executed on June 4, 1993.

On October 3, 1993, the NCEL was disestablished by action of the 1993 Base Realignment and Closure Commission and a new command, the Naval Facilities Engineering Service Center (NFESC), was established. The NFESC included employees in Port Hueneme, California, from the former NCEL and the Naval Engineering Environmental Support Activity (NEESA). The NFESC also included employees in Washington, D.C., from the Ocean Engineering and Construction Project Office, the Communication/Electronic Projects, the Naval Facilities Engineering Command Chief Engineers Office, and the Assistant Commander for Ocean Facilities. The NEESA and the Washington, D.C. employees were not represented by a labor organization.

NAGE claimed in its CU petitions that NFESC is the successor employer to NCEL and that the employees from NEESA and the Washington Navy Yard have accreted to its former NCEL bargaining units. The Activity claimed, in support of its RA petitions, that the character and scope of the NAGE units have changed substantially and, therefore, the units are no longer appropriate.

The Acting Regional Director (ARD) dismissed the CU petitions and directed that representation elections be conducted. Citing Department of Energy, Western Area Power Administration, 3 FLRA 77 (1980) (DOE) and U.S. Department of Health and Human Services, Administration for Children and Families Washington, D.C., 47 FLRA 247 (1993), the ARD stated that in order to find a successor relationship three DOE factors must exist:

(1) the existing unit must be transferred substantially intact to the gaining employer;

(2) the appropriateness of the unit must remain unimpaired [in the gaining employer]; and

(3) a question concerning representation (QCR) may not be timely raised as to the [representative] status of the incumbent union.

ARD's Decision at 8. The ARD concluded, under the first DOE factor, that the units of NCEL employees were transferred intact to the NFESC. However, the ARD found that the second and third DOE factors had not been met.

With regard to the second DOE factor, the ARD concluded that the appropriateness of the former units had not remained unimpaired. He determined, citing Federal Aviation Administration, Aviation Standards National Field Office, 15 FLRA 60 (1984) and Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, North Carolina, 45 FLRA 281 (1992), that NFESC was not the successor to NCEL because the reorganization substantially changed the character and scope of the former NCEL units. The ARD based this conclusion on findings that the mission of NFESC was expanded from that of NCEL and that, following the reorganization, all NFESC employees have common personnel policies, including new (as compared to NCEL) areas of considerations for RIF and promotion.

With regard to the third DOE factor, the ARD found, without elaboration, that a question concerning representation had been raised in a timely fashion by the NFESC by the filing of the RA petitions. Based on his conclusions that two of the three DOE factors were not met, the ARD dismissed the CU petitions.

The ARD determined, with respect to the RA petitions, that the appropriate units for exclusive recognition were (1) all nonprofessional GS and WG employees of NFESC and (2) all professional employees of NFESC, with the mandatory exclusions. Applying section 7112(a)(1) of the Statute, the ARD concluded that the employees in these units shared a clear and identifiable community of interest and that establishment of these units would promote effective dealings with, and efficiency of operations of, the agency involved. The ARD directed that representation elections be conducted in the units he found appropriate.

III. Application for Review and Opposition

NAGE seeks review of the ARD's decision on the grounds that: (1) the ARD committed prejudicial error by failing to consider its post-hearing brief as timely filed; (2) the ARD committed prejudicial error on a substantial factual issue when he concluded that the mission of NFESC was substantially different from that of NCEL; (3) the ARD's decision raises a question of law because it permits an agency to void existing contracts and certifications by conducting reorganizations; and (4) the ARD's decision raises a substantial question of law because the ARD misapplied the successorship criteria established in Defense Supply Agency, Defense Property Disposal Office, Aberdeen Proving Ground Aberdeen, Maryland, 3 FLRC 787 (1975) and adopted by the Authority in DOE.

In its opposition, the Activity asserts that NAGE's application for review does not satisfy the requirements of 5 C.F.R. 2422.17(c). More specifically, the Activity states that "[t]he [a]pplication for [r]eview is merely disagreement with the Regional Director's Decision." Opposition at 2.

IV. Analysis and Conclusions

We conclude, for the reasons that follow, that compelling reasons do not exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review as to the issues raised by NAGE in its first three grounds. We further conclude, however, that compelling reasons exist for granting the application for review as to the issues raised in the fourth ground.

With respect to the first ground, we find that NAGE has failed to show that the ARD committed prejudicial error by denying the Union's motion that the ARD accept its post-hearing brief as timely filed. The record reflects that the Union filed a motion with the ARD, after the post-hearing briefs were due, requesting that its brief be accepted as timely filed based on an affidavit from a Union official stating that the brief was so filed. The ARD denied the Union's motion because, among other things, the motion was not supported by proof of service.

A party's assertion, supported by an affidavit, that a document was mailed on a certain date does not constitute proof of service under section 2429.27(b) of the Authority's Rules and Regulations. See Equal Employment Opportunity Commission, Washington, D.C., 48 FLRA 917, 918 (1993). Accordingly, we find that NAGE has failed to establish that the ARD committed prejudicial error by refusing to accept the Union's post-hearing brief and we will deny the application for review of this aspect of the ARD's decision.

The second ground in NAGE's application for review-- that the ARD committed prejudicial error on a substantial factual issue when he concluded that the mission of NFESC was substantially different from that of NCEL--also does not establish that review of the ARD's decision is warranted. In our view, NAGE has misconstrued the ARD's finding on this issue. The record shows that the ARD concluded only that the "NFESC ha[d] an expanded mission, more than that formerly performed by any one of the three former groups[.]" ARD's Decision at 9. We find that this conclusion is not clearly erroneous and even if it were, it is not a substantial factual issue because other factors also contributed to the ARD's determination that the NFESC was not the successor employer to the NCEL units. Consequently, NAGE has not established that a finding or conclusion of the ARD on a substantial factual issue is clearly erroneous. See, for example, U.S. Department of Justice, Executive office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Illinois, 48 FLRA 620, 631-34 (1993).

We also find that NAGE's third claim does not establish grounds to review the ARD decision. Contrary to the Union's claims, there is no evidence in the record that agency management conducted the October 3, 1993, reorganization to put the union "out of action." Application at 5. Accordingly, assuming for the purposes of this decision that such evidence would constitute a basis for review, we find that the third ground asserted by NAGE provides no basis for granting review of the ARD's decision.

Finally, with respect to the fourth ground on which NAGE is seeking review, we find that NAGE has established that compelling reasons exist for granting review of two aspects of the ARD's decision and order under section 2422.17(c) of the Authority's Rules and Regulations.

First, the ARD found that NFESC was not the successor to NCEL because the appropriateness of the NCEL units had been impaired as a result of the reorganization. NAGE maintains that the ARD erred by failing to apply accretion principles to find that the previously unrepresented employees who transferred to the NFESC had accreted to the former NCEL bargaining units. NAGE relies, in this regard, on the Authority's decisions in U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 47 FLRA 602 (1993) and Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245 (1992).

Our review of the record in this case, including the decisions cited by the ARD and NAGE, leads us to conclude that there are extraordinary circumstances, within the meaning of section 2422.17(c)(2) of the Authority's Regulations, warranting reconsideration of the Authority's policy and criteria for determining successorship in cases where the continued appropriateness of an existing unit is questioned and accretion is claimed. In particular, we find that it is unclear from our precedent whether and/or how accretion principles are or should be applied to determine whether the appropriateness of bargaining units remains unimpaired as a result of a reorganization. For example, must the continued appropriateness of a unit be established before a finding is made as to whether other employees have accreted into it, or should these determinations be made in another way or sequence? We find further that the likely prospect that other reorganizations will raise this issue creates a need for clear guidance in this area. Therefore, we grant NAGE's application for review of this aspect of the ARD decision.

Second, NAGE contends that the ARD erred in finding that the RA petitions raised a QCR so as to preclude a finding that NFESC was the successor employer to the NCEL units. NAGE argues that, in this context, a QCR is raised only when a rival labor organization seeks to replace an incumbent union.

Our review of cases under Executive Order 11491 and the Statute reveals that there is an absence of precedent on the issue of whether the filing of an RA petition raises a question concerning representation as to the representative status of an incumbent labor organization so as to preclude a finding of successorship. Therefore, we also grant NAGE's application for review under section 2422.17(c)(1) of the Authority's Rules and Regulations in order to consider