52:1068(109)AC - - NAGE, SEIU, Local 5000 and VA, Washington, D.C. [ Veterans ] - - 1997 FLRAdec AC - - v52 p1068
[ v52 p1068 ]
The decision of the Authority follows:
52 FLRA No. 109
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES/SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 5000, AFL-CIO-CLC
SERVICE EMPLOYEES INTERNATIONAL
DEPARTMENT OF VETERANS AFFAIRS
DECISION AND ORDER ON REVIEW
March 13, 1997
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members. (1)
I. Statement of the Case
In National Association of Government Employees/Service Employees International Union Local 5000, 51 FLRA 969 (1996), the Authority granted in part and denied in part an application for review jointly filed by the National Association of Government Employees, Service Employees International Union, Local 5000, AFL-CIO-CLC (NAGE) and the Service Employees International Union, AFL-CIO-CLC (SEIU), herein called the joint petitioners.(2) Review of the Regional Director's (RD's) decision and order dismissing the petition for amendment of certification was granted on the ground that there is an absence of precedent on the following issues:
1. Should the facts that the joint petitioners agree that the San Diego employees should be severed from the SEIU unit and included in the NAGE unit, and/or that the agency does not oppose such agreement, be considered in resolving the petition in this case?
2. If those facts are considered, what principles should be used to determine whether to grant the petition?
a. As to severance, for example, should SEIU's agreement be accorded the same effect as the disclaimer in Treasury?(3)
b. As to accretion, for example, should the joint petitioners' agreement be considered dispositive in light of the Agency's neutral position? Are there any circumstances that would override the agreement? Are there any circumstances in which an election should be directed?
3. If the petition were to be granted, would the resulting units continue to be appropriate within the meaning of section 7112 of the Statute?
Pursuant to our order granting review and a notice inviting interested persons to file briefs on these issues, 61 Fed. Reg. 11638-11639 (March 21, 1996), NAGE and SEIU filed supplemental briefs and amicus curiae briefs were filed by the Department of the Navy and the Office of the General Counsel, Federal Labor Relations Authority (General Counsel). For the reasons discussed below, we affirm the RD's decision and order.
II. Background and Regional Director's Decision and Order
NAGE is the exclusive representative of a nationwide, consolidated unit of 10,200 nonprofessional employees of the U.S. Veterans Administration (Agency). A national collective bargaining agreement is in effect in the NAGE consolidated unit. After the consolidated unit was established, in a merger of the unions at the national level, NAGE affiliated with SEIU. As a result of this affiliation, NAGE became NAGE/SEIU Local 5000, a labor organization subordinate to SEIU. RD's Decision at 3.
SEIU holds exclusive recognition for a different nationwide consolidated unit, consisting of 9,800 professional and nonprofessional employees of the Agency. Within the SEIU consolidated unit, SEIU Local 102 is the local representative of the 900 nonprofessional employees at the Agency's San Diego, California Medical Center (San Diego Center). A national collective bargaining agreement is in effect in the SEIU consolidated unit. The San Diego Center and SEIU Local 102 also are parties to a local collective bargaining agreement.
NAGE's unit was established following a consolidation election conducted pursuant to the Decision and Direction of Election issued by the Assistant Secretary in Veterans Administration, 8 A/SLMR 393 (1978). In subsequent proceedings, the unit was expanded, without an election, to include additional Agency employees. SEIU's unit also was established following an election. However, the election was conducted solely on the question of whether the professional employees in SEIU's existing units wished to be included in the same nationwide consolidated unit with nonprofessional employees. Regional Director's Report and Findings on Petition for Consolidation of Units, Case No. 3-UC-19 (1980).
In this case, the joint petitioners seek to transfer the 900 San Diego Center employees from SEIU's consolidated unit to NAGE's consolidated unit, by changing affiliation from SEIU to NAGE. RD's Decision at 3 n.4. The petition was filed after a "special meeting" was held by SEIU Local 102. The 40 members of SEIU Local 102 at the San Diego Center were invited to the meeting, at which the sole topic of discussion was a proposed transfer of representation from SEIU Local 102 to SEIU Local 5000. The 5 members of SEIU Local 102 who attended the meeting voted unanimously by secret ballot to "transfer representation." Id. at 4, 5. The vote was conducted using the procedures for a change in affiliation established in Veterans Administration Hospital, Montrose, New York 4 A/SLMR 859 (1974), review denied, 3 FLRC 259 (1975) (Montrose) and adopted by the Authority in Florida National Guard, St. Augustine, Florida, 25 FLRA 728 (1987).
The RD dismissed the petition on the ground that the joint petitioners had failed to establish the "unusual circumstances" necessary under Authority case law to justify severance of employees from an existing bargaining unit. RD's Decision at 7. The RD found that there was no evidence or contention that: (1) SEIU's consolidated unit, including the San Diego Center employees, was not appropriate for exclusive recognition under section 7112(a) of the Federal Service Labor-Management Relations Statute (Statute); (2) SEIU failed to fairly represent the San Diego Center employees or disclaimed interest in representing them; and (3) severing the San Diego Center employees from the SEIU unit would better "meld" with the Agency's organizational and operational structure. Id. at 8. The RD noted that SEIU Local 102 members voted to "transfer representation" and that SEIU did not oppose the change, but concluded that these were not unusual circumstances warranting severance.
The RD made no findings concerning the effects of the requested change on the appropriateness of the SEIU or NAGE consolidated units. Nevertheless, the RD concluded that the Agency's neutral position indicated that the change would have little impact on its effective dealings and efficiency of operations. Id. at 9. However, the RD rejected the argument that severance should be permitted because NAGE allegedly possesses greater resources, experience and commitment to partnership.
In this regard, the RD also concluded that the joint petitioners are not prevented from transferring representation of the San Diego Center employees from SEIU to NAGE by any Authority principle or procedure. The RD noted that such changes could be handled internally within SEIU, without resort to the Authority's procedures. The RD found, however, that the petition sought not merely to transfer representation of the employees but to sever the San Diego Center employees from the consolidated SEIU unit and move them to the consolidated NAGE unit. Id. at 3 n.4. The RD dismissed the petition, based on his conclusion that severance was not warranted in the circumstances of this case.
III. Supplemental Briefs and Amicus Curiae (4)
1. NAGE's Position (5)
NAGE contends that the petition should be granted because it would further Statutory and National Performance Review goals by permitting the unions to provide quality representation and by avoiding fragmentation of units. NAGE maintains that it is not necessary to address the issues identified by the Authority or to rely on Authority precedent in order to resolve this case, and that adherence to Authority precedent and principles is overly technical and contrary to National Performance Review goals. In addition, NAGE argues that the petition should be granted because NAGE has achieved more labor-management partnerships than SEIU.
NAGE asserts that the agreement between the unions resolves the issues, in the absence of agency opposition. NAGE contends that the agreement, the affiliation of the unions and the establishment of the consolidated units, coupled with the unions' joint filing of the petition, are analogous to the disclaimer in Treasury, and that the Montrose vote also should be viewed as an unusual circumstance warranting severance. NAGE Brief at 9-10. According to NAGE, these factors and the lack of objection by unit employees to the proposed change are unique circumstances that support a finding of accretion in this case. In NAGE's view, no election is necessary "because all individuals and parties who care have spoken[.]" Id. at 11.
2. SEIU's Position
SEIU also does not agree with the issues framed by the Authority. SEIU asserts that this case involves only a question of the appropriate procedure to change affiliation from one consolidated unit to another consolidated unit. SEIU argues that undoing a consolidation should be no more difficult than establishing a consolidated unit. According to SEIU, there is no basis to challenge the appropriateness of the existing NAGE and SEIU consolidated bargaining units or the units that would result from the requested change. Rather, SEIU contends that the parties' agreement should resolve the issues, but does not specifically address whether it should be considered as a disclaimer such as that held to contribute to circumstances justifying severance in Treasury. SEIU asserts, however, that the cumulative effect of the circumstances warrant severance, specifically, the agreement or acquiescence by all parties and the fact that the change will occur in consolidated bargaining units that are similar in character and that are under the jurisdiction of a single national union. As for accretion-related questions, SEIU states that "the second part of the petitioned-for process should be treated as a consolidation, not an accretion." SEIU Brief at 3.
3. Department of the Navy's Amicus Brief
Navy asserts that the union's agreement is significant, but not dispositive. Navy would require that the agency's position be given weight, since granting the petition would change the composition of the consolidated units. According to Navy, the agreement should not be accorded the same effect as a disclaimer of interest, but might be considered with other factors to justify granting severance. Navy Brief at 3. In Navy's view, the Authority should continue to decide accretion issues by applying the criteria of section 7112(a) of the Statute. Navy suggests that, as well as severance and accretion issues, the Authority should address the issue of a change in affiliation, including determining whether the procedural requirements for changing affiliation have been satisfied in this case.
IV. Analysis and Conclusions
This is a case of first impression concerning the effect of an agreement that would change the structure of existing bargaining units by removing employees from a unit represented by one union and adding these employees to a unit represented by another union. In effect, the joint petitioners contend that their agreement should be dispositive of the representation issues raised by the petition, because the agreement involves two consolidated units in the same agency for which the same national union, SEIU, has ultimate jurisdiction.(6) For the reasons discussed below, in order to find that the agreement is dispositive, it would be necessary to create an exception to existing representation case policies. We recognize that, in some instances, doing this may be necessary to effectuate the purposes and policies of the Statute. However, we conclude that the circumstances presented in this case do not warrant such an exception, because a finding that the unions' agreement is dispositive would impermissibly interfere with the fundamental rights of unit employees to determine their exclusive representation.
1. The Unions' Agreement Does Not Resolve the Issues Raised by the Petition
Assisting federal sector agencies, unions and employees to amicably resolve disputes without recourse to third party proceedings is both a Statutory purpose and the long-standing policy of the Authority. Consistent with these aims, parties are encouraged to meet to resolve their differences before and after filing with the Authority, the General Counsel or the Federal Service Impasses Panel. Further, the Authority's Regulations encourage parties to meet and attempt mutual resolution of disputed matters in both unfair labor practice cases and representation cases. In addition, parties' agreements on various matters are afforded deference by the Authority. In carrying out the responsibilities mandated by the Statute, the Authority defers to parties' agreements unless the Statute requires otherwise.
However, the Authority is responsible under the Statute to make certain representation decisions. As relevant here, section 7105(a)(2)(A) of the Statute mandates that the Authority shall "determine the appropriateness of units for labor organization representation" and section 7112(a)(1) of the Statute directs that the "Authority shall determine the appropriateness of any unit." Consistent with these provisions and long-established precedent, the Authority has "exclusive jurisdiction to make appropriate unit determinations." U.S. Small Business Administration, 32 FLRA 847 (1988). Thus, although parties' agreements may be considered in deciding representation case issues, the Authority is not bound by such agreements on legal or policy issues and does not defer to such agreements in deciding representation issues. Cf. Army and Air Force Exchange Service, White Sands Missile Range Exchange, White Sands Missile Range, New Mexico, 1 A/SLMR 146 (1971). Further, the Authority does not accept or consider parties' agreements in resolving representation case issues if the agreements do not conform to the requirements of the Statute. Bureau of Indian Affairs, Wind River Agency, Fort Washakie, Wyoming, 29 FLRA 935 (1987).
Authority case law confirms that agreements in consolidation cases are no more or less significant than any other agreement of the parties concerning representation matters. For example, parties' agreements are not dispositive of the issue of appropriateness of the proposed consolidated unit. Rather, the Authority determines the appropriateness of consolidated units based on case-by-case application of the three criteria of section 7112(a). See, e.g., Department of Transportation, Washington, D.C., 5 FLRA 646 (1981). In addition, section 7112(b) of the Statute provides that a unit shall not be determined to be appropriate "solely on the basis of the extent to which employees in the proposed unit have organized . . . ." Accordingly, a proposed consolidated unit will not be found appropriate solely because it consists of all the employees of an agency who are already represented by a particular union. See U.S. Department of Justice, 17 FLRA 58 (1985).
The unions' agreement in this case involves two consolidated units represented by two affiliated unions. In addition, the agency does not oppose the proposed change and neither the employees notified of the special meeting nor any other affected unit employee has objected to the proposed change. Insofar as it may be relevant to the issues to be resolved in this case, no basis is cited or apparent for ignoring the agreement. Likewise, however, no authority is cited or apparent to support the joint petitioners' position that, in the absence of agency opposition or objections by unit employees, their agreement is dispositive of the issues of this case.(7) To find the agreement dispositive would be to hold that the unions may change the structure of two bargaining units without application of the appropriate unit criteria in section 7112(a) of the Statute. It would also change the exclusive representative for the 900 San Diego Center employees without permitting the employees a vote on the question in a representation election.(8) Finding that the unions may decide these matters by agreement does not conform to the requirements of the Statute. Therefore, the Authority will consider, but will not find dispositive, the unions' agreement to remove employees from the SEIU unit and include them in the NAGE unit.
2. Application of Affiliation Principles Does Not Resolve the Issues Raised by the Petition
A change in affiliation affects the designation of the exclusive representative for an existing unit -- the internal organization of the union -- and does not change the scope of the bargaining unit in any way. In this case, NAGE and SEIU do not wish to change affiliation. Indeed, the record reflects that these two unions have been affiliated for several years. Rather, the joint petitioners propose to change the structure of two existing units by moving the San Diego Center employees from the SEIU unit to the NAGE unit. There is no precedent for accomplishing a change in the structure of bargaining units through affiliation.(9) To the contrary, under existing Authority precedent, a change in affiliation may not be used to change unit structure and does not result in a changed unit structure. See Florida National Guard, St. Augustine, Florida, 34 FLRA 223 (1990).(10) Therefore, we do not apply affiliation principles in deciding whether the requested change in unit structure may be granted.
3. Application of Severance Principles Does Not Resolve the Issues Raised by the Petition
Severance principles apply when a petition is filed seeking an election in a portion of an existing, appropriate bargaining unit. See, e.g., Library of Congress, 16 FLRA 429 (1984). Therefore, a petition seeking severance requires a showing of interest. See Office of Hearings and Appeals, Social Security Administration, 16 FLRA 1175 (1984). Further, granting severance results in a direction of election. For example, in Treasury, 49 FLRA at 108-09, where the presence of unusual circumstances justified severance, the Authority found that the Regional Director should direct an election if the petitioned-for unit was appropriate for exclusive recognition. In this case, however, the joint petitioners do not seek an election and assert that an election is not necessary to resolve any of the issues of this case.
In addition, severance is not permitted absent evidence that unusual circumstances are present which justify a change in an existing bargaining unit. See Library of Congress, 16 FLRA at 431. One such circumstance involves the adequacy of representation afforded by the incumbent exclusive representative. The failure of an incumbent to fairly represent the employees sought would give rise to a question of representation concerning the petitioned-for unit and justify severance of those employees from an existing larger unit that continued to remain appropriate. See, e.g., U.S. Department of Veterans Affairs, Washington, D.C., 35 FLRA 172, 180 (1990). The Authority has also found an unusual circumstance justifying severance when the character and degree of a reorganization resulted in the loss of a community of interest between some employees in a unit and the remainder of the unit. Id. In the instant case, there is no contention or any record evidence that any reorganization has occurred or that SEIU has failed to fairly represent the San Diego Center employees.
The Authority examined additional factors to determine whether unusual circumstances were present in Treasury. In that case, the Authority concluded that a disclaimer of interest by the incumbent exclusive representative, and its subsequent conduct consistent with that disclaimer, contributed to a cumulation of factors which constituted unusual circumstances justifying severance of a group of employees from an existing bargaining unit. The cumulation of factors noted in Treasury were: (1) the incumbent union did not oppose the severance; (2) the incumbent expressly disclaimed interest in representing the employees; (3) the incumbent subsequently acted in a manner consistent with its disclaimer of interest; (4) the petitioned-for employees were local hires who worked at a newly created facility; (5) the employees had been included in the existing unit only by the parties' agreement, not through representation proceedings; and (6) a valid petition was filed seeking to represent the employees in a separate unit. 49 FLRA at 107. SEIU's agreement in this case that NAGE should represent the San Diego Center employees is not an express disclaimer of representational interest, such as the disclaimer held to be a factor contributing to the existence of unusual circumstances in Treasury. Rather, as noted in the Order Granting the Application for Review, "[t]here is no suggestion in this case that SEIU would disclaim interest in representing the San Diego employees if the petition is dismissed." 51 FLRA at 973 n.3.
In a unique case, International Communication Agency, 5 FLRA 97 (1981) (ICA), the Authority held that a pay inequity was an unusual circumstance justifying the severance of three broadcast technicians from a bargaining unit, since their inclusion in that unit legally precluded the agency from paying them at the same rate as employees in the same classification in another unit. In this case, the only asserted inequity is NAGE's claim that it has negotiated more partnership agreements than SEIU. However, unlike the inequitable pay situation present in ICA, there is nothing in this case that would prevent SEIU from negotiating partnership agreements with the Agency. Thus, the unions' differing partnership achievements are not a factor contributing to the existence of unusual circumstances, as the term was applied in ICA, especially taking into account the fact that NAGE is affiliated with SEIU.
The only facts supporting "unusual circumstances" in this case are the existence of the agreement between the two affiliated unions that are the exclusive representatives of these consolidated units and the lack of agency opposition or objection by individuals to the proposed change. These facts alone, however, do not constitute unusual circumstances that, in our view, should be found to justify severance. In addition, even assuming that the evidence supported a finding of unusual circumstances, an election would be necessary to determine the employees' desires concerning exclusive recognition. In this case, no petition was filed seeking an election among the employees in the group proposed to be severed from the existing unit. In these circumstances, we conclude that the joint petitioners' agreement does not have the same effect as the disclaimer in Treasury and is otherwise insufficient to satisfy the Authority's "unusual circumstances" standard for granting severance.
4. Accretion Principles Are Not Applicable to the Issues Raised by the Petition
The Authority applies accretion principles to determine whether a change in agency operations has affected the unit status of bargaining unit employees. For example, in Department of the Navy, Naval Hospital, Submarine Base Bangor Clinic, Bremerton, Washington, 15 FLRA 125 (1984), the Authority concluded that, as a result of a reorganization, a group of employees who had been included in a basewide unit had accreted to a hospital unit. In reaching this conclusion, the Authority examined the effects of the reorganization on the application of the three criteria in section 7112(a)(1) and found that the employees' community of interest and the agency's effective dealings and efficiency of operations were no longer linked with the base-wide unit, but with the hospital unit. In another case involving the application of accretion principles, U.S. Department of Labor, Pension and Welfare Benefits Administration, 38 FLRA 65 (1990) (Department of Labor), the Authority found that a group of employees affected by a reorganization constituted a separate appropriate unit, but that their inclusion in an existing unit might also result in an appropriate unit and, thus, that it was appropriate to hold a self-determination election.
However, the Authority does not apply accretion principles absent a change in agency operations affecting the application of the section 7112(a) criteria within an existing unit. Thus, a claimed accretion is denied where there is no triggering change in agency operations. In particular, when there has been no change in agency operations, the inclusion of additional employees in an existing unit is permitted only through a petition seeking an election. See Federal Trade Commission, 35 FLRA 576 (1990). This long-established policy serves to promote stability and to discourage distortions in shaping the parameters of petitioned-for units. See, e.g., Federal Trade Commission, 15 FLRA 247 (1984) (accretion denied in the absence of evidence of meaningful changes following certification where union agreed to exclude employees during certification process and then claimed the same employees had accreted to certified unit.)
In this case, no change in agency operations has occurred that alters the appropriateness of the existing consolidated units with respect to the San Diego Center employees such that: (1) they no longer share a community of interest with other employees in the SEIU unit and instead share a community of interest with the employees in the NAGE unit; (2) their continued inclusion in the SEIU unit and a failure to include them in the NAGE unit would impede the agency's effective dealings; and (3) their inclusion in the SEIU unit instead of the NAGE unit would adversely affect the efficiency of operations of the agency.
The only "event" asserted in this case to trigger the application of accretion principles is the unions' agreement. The agreement does not call into question the bargaining unit status of these employees, warranting the application of accretion principles. In any event, even if the agreement were considered to be such an event, it appears likely not only that the San Diego Center employees themselves would constitute a separate appropriate unit, but also that they could appropriately be included in either of these two consolidated units. In such a situation, under accretion law, a self-determination election would be required. Department of Labor, 38 FLRA at 73.(11)
Therefore, we find that the joint petitioners' agreement is neither a change in agency operations nor analogous to such a change and, therefore, that the agreement does not affect the bargaining unit status of the San Diego Center employees. Thus, we find no basis for applying accretion principles in this case and find that the accretion claimed by the joint petitioners did not occur.
Consistent with the foregoing, application of existing case law clearly supports the Regional Director's decision to dismiss the petition. We do not believe that there is disagreement on this point. In our view, the circumstances of this case do not support creating an exception to accommodate the joint petitioners. We conclude that an exception to the Authority's representation case doctrines, which serve to protect the interests of all parties in representation cases, is not warranted here. This conclusion is based on the responsibilities imposed on the Authority by the Statute.
The joint petitioners propose to change the structure of their bargaining units so that the San Diego Center employees are removed from one unit and are included in a different unit, covered by a different contract that was negotiated by a different exclusive representative.(12) The joint petitioners seek, unilaterally, to determine both unit structure and exclusive recognition. These are not petitioners' decisions to make alone. The Statute directs the Authority to determine unit structure based on principles designed to safeguard the rights of employees, employers and unions, and it is not appropriate for the Authority to delegate to the joint petitioners its responsibility for deciding these matters. Moreover, the Statute provides that unit employees determine their exclusive representation through elections, conducted with the protections of the Authority's processes, in which all employees in the unit are eligible to vote. The affiliation vote of union members held in this case provides no basis for ignoring unit employees' statutory right to determine their exclusive representative.(13)
Granting the petition would establish a form of voluntary recognition in which both the Authority's processes and the employees' votes would be unnecessary. Compelling circumstances, such as those presented in ICA (14), might justify a departure from the standards and procedures established by the Authority to carry out the purposes and policies of the Statute in a particular case. The agreement of SEIU and NAGE to remove employees from one union's unit and to add them to the other union's unit does not, in our view, constitute circumstances that justify such a departure here. We find that it is inconsistent with the rights of employers, employees, and unions, crafted by Congress, to allow unions independently to determine which of them will be the exclusive representative under the Statute for a particular group of an agency's employees. We conclude that the Authority should not sanction such a denial of employees' most fundamental right under the Statute: to decide whether to be represented and, if so, by what union.
Based on the foregoing, the petition in this case is dismissed.
Member Wasserman, dissenting:
There is no dispute in this case that the two Unions involved wish to effect the petitioned-for change in the units. There is no dispute that the Agency does not oppose the change. There is no dispute that no employee currently represented by SEIU Local 102 has publicly opposed the change, despite the fact that a forum was provided to permit members of Local 102--those who would be most likely to object--to discuss the matter. There is no dispute that the resulting units would be appropriate. There simply is no dispute here, except one of our own making. In such circumstances, noting particularly the lack of protest by any affected employee or the Agency, I see no value in our refusing to amend the certifications, as requested.
I recognize that SEIU could have designated NAGE/SEIU Local 5000 as its agent in representing the San Diego employees and, in that way, transferred representational responsibility to NAGE, as the RD and my colleagues point out. By filing the petition in this case, however, the Unions have demonstrated that a delegation of responsibility is not their sole objective. Rather, I believe that the Unions understood the limits of what they can do to resolve this matter on their own. Without a change in certification, NAGE's status could be open to later challenge, including legal action, by a dissident or by changed management. The petitioners seek our imprimatur to avoid such problems. If this amendment of certification does not fit neatly within our precedent--and I agree that it does not--then we should create precedent in the unique circumstances of this case rather than erect procedural barriers to an action that will result in no foreseeable harm.
(If blank, the decision does not have footnotes.)
1. The separate dissenting opinion of Member Wasserman is set forth at the end of this decision.
2. The petition in this case was filed under the Authority's Regulations in effect prior to March 15, 1996. The revised representation Regulations that became effective on that date apply only to petitions filed on or after March 15, 1996, and, therefore, do not apply in this case. See Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 938 n.6 (1996).
3. U.S. Department of the Treasury, Bureau of Engraving and Printing, 49 FLRA 100, 106-107 (1994) (Treasury).
4. The General Counsel's brief included alternative options for deciding each of the issues identified in the Authority's order. The General Counsel's brief was considered in deciding this case. However, because it made no specific recommendations and took no specific positions regarding the issues to be resolved, no summary of the brief is contained herein.
5. NAGE's brief in response to the Authority's Order Granting in Part and Denying in Part the Application for Review contains a request for reconsideration of the portions of the Order that denied the application for review. In order to be timely under section 2429.17 of the Authority's Regulations, a request for reconsideration must be filed within 10 days after service of the Authority's decision or order. The Authority's order is dated March 15, 1996. Although the Authority subsequently granted joint petitioners' request for extension of time to file briefs from April 19, 1996 to May 10, 1996, neither that request nor the Authority's grant of it can be construed as affecting the time limit for requesting reconsideration. NAGE's request for reconsideration was submitted on May 10, 1996, and, as such, is untimely. Accordingly, the request for reconsideration is denied.
6. NAGE also asserts that granting the petition would avoid fragmentation of units. The proposed change would remove 900 employees from the SEIU unit of 9,800 employees and add them to the NAGE unit of 10,200 employees. In these circumstances, it is not clear how the change would affect unit fragmentation in any way, either by promoting or avoiding fragmentation of units.
7. SEIU also asserts that "undoing" a consolidation should be no more difficult than establishing a consolidated unit. The consolidated unit, however, was established from several separate units of agency employees. In these circumstances, it is not clear how the consolidation could be "undone" without dividing the entirety of the consolidated unit into the separate units from which it originally was established.
8. As discussed below, an affiliation vote does not change exclusive recognition. Rather, in a Montrose vote, the members of a union that holds exclusive recognition decide whether that union will change its name and affiliation.
9. In the private sector, the NLRB has recognized that "an affiliation does not create a new organization, nor does it result in the dissolution of an already existing organization." NLRB v. Financial Institution Employees, 475 U.S. 192, 206 (1986) (Financial Institution Employees). Where organizational changes are "sufficiently dramatic to alter the union's identity, affiliation may raise a question of representation, and the Board may then conduct a representation election." Id. In addition to establishing continuity in the union, in order to change an affiliation, the Board requires that the union members be afforded due process. Id. The Authority adopted Financial Institution Employees in U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 34 FLRA 428, 446 (1990) (BIA). Under the doctrine applied by the Authority, two conditions must be met to change the affiliation of an exclusive representative: (1) due process, in that all the members of the union must have an adequate opportunity to vote on the change; and (2) substantial continuity must exist as regards the union before and after the change in affiliation. See Union of Federal Employees, 41 FLRA 562 (1991) (UFE).
10. Moreover, even assuming that affiliation procedures are applicable here, it is not clear that the conditions set forth in BIA were satisfied. In this regard, the special meeting notice and the ballot both identified the change as a transfer from SEIU Local 102 to SEIU Local 5000; this implied that SEIU Local 102 holds exclusive recognition and failed to disclose either that representation would be transferred to a different consolidated unit represented by NAGE or that SEIU Local 5000 is actually NAGE/SEIU Local 5000. Thus, neither document clearly and adequately informed employees of the nature of the proposed change or the choices inherent in the election, as required. See UFE, 41 FLRA at 575-76. We also note that the record is devoid of evidence on the issue of whether the requirements for substantial continuity of representation were satisfied. See UFE 41 FLRA at 582.
11. A finding that the unions' agreement is an event that calls into question the bargaining unit status of the San Diego Center employees would require a remand to the RD to determine whether the San Diego Center employees constitute a separate appropriate unit. Treasury, 49 FLRA 108-109.
12. As noted by the RD, if a transfer of representational responsibility for the San Diego employees was the joint petitioners' sole objective, the petition process would not be necessary to achieve their aims. SEIU could simply designate NAGE, as an SEIU local and in place of SEIU Local 102, to be the local representative of the San Diego Center employees within the SEIU consolidated unit.
13. As noted above, the special meeting notice was sent to only 40 union members among the 900 unit employees of the San Diego Center and only 5 of the union members participated in the affiliation vote. Moreover, even among the union members, no vote was taken on whether NAGE should be the exclusive representative of the San Diego Center employees. Further, in a Montrose vote, union members do not decide exclusive recognition but, rather, determine whether the exclusive representative may change its name and affiliation.
14. In ICA, the Authority ostensibly used severance and accretion principles to remove employees from one unit and include them in another unit. In fact, the Authority did not apply its existing severance and accretion policies in deciding the case. Instead, faced with an inequitable situation resulting from the unit structure, the Authority created a unique analysis to address and rectify the inequity. No such inequity has been asserted to exist in this case.