52:1084(110)AC_CU - - SSA District Office, Valdosta, GA and AFGE - - 1997 FLRAdec RP - - v52 p1084
[ v52 p1084 ]
The decision of the Authority follows:
52 FLRA No. 110
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
DECISION AND ORDER ON REVIEW
March 13, 1997
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
By an order dated February 29, 1996, the Authority granted an application for review of the Regional Director's (RD's) Decision and Order on Petitions for Amendment of Certification (AC) and Clarification of Unit (CU), filed by the Petitioner, American Federation of Government Employees, AFL-CIO (AFGE) under section 2422.17(a) of the Authority's Regulations.(1) Review was granted on issues concerning: (1) the application of the Authority's successorship principles enunciated in Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme) to the facts of this case; and (2) the relationship of the principles set forth in Port Hueneme to those in U.S. Department of Housing and Urban Development, 8 FLRA 176 (1982) (HUD). Order granting application for review at 1. The Order also stated that the Authority would consider "the effect, if any, of the fact that the transferred employees were originally part of a nationwide consolidated unit." Id.
For the reasons that follow, we conclude that the transfer of the Thomasville District employees to the Valdosta District as a result of an Agency reorganization resulted in a successorship under the criteria set out in Port Hueneme. Therefore, as explained below, AFGE's consolidated unit will be amended to include the employees in the Valdosta District.
AFGE represents a nationwide consolidated unit of approximately 52,000 employees of the Social Security Administration (SSA). Prior to the reorganization that gave rise to these petitions, the consolidated unit included all nonsupervisory employees of the SSA's Thomasville, Georgia District Office and its branch offices. Valdosta District employees were not represented prior to the reorganization. On March 29, 1994, the SSA Atlanta Region requested that SSA headquarters reorganize the Georgia Service Areas. As part of the resulting reorganization, which was effective June 1, 1994, SSA organizationally transferred 21 employees from the Thomasville District and its Moultrie, Georgia Branch Office to the Activity's Valdosta, Georgia District, where the Thomasville and Moultrie offices became branch offices of the Valdosta District.(2)
The Thomasville and Moultrie employees were transferred organizationally, but they remained at their same respective worksites. The parties stipulated that all of the employees of the Activity's district and branch offices perform essentially the same functions and that the 21 transferred Thomasville and Moultrie employees perform essentially the same duties as they did prior to the reorganization. In addition, the mission of the Thomasville and Moultrie offices was not affected by the reorganization.
In the AC petition, AFGE seeks to retain in its nationwide unit the 21 transferred Thomasville and Moultrie employees who were part of that unit prior to the reorganization. In the CU petition, AFGE seeks to include in the nationwide unit the 15 previously unrepresented employees of the Valdosta District Office. In that petition, AFGE contends that the 15 employees of the Valdosta District Office have been accreted into the nationwide unit as a result of the reorganization and transfer of the 21 Thomasville employees.
III. Regional Director's Decision
The RD found that the former Thomasville and Moultrie employees share a community of interest with the employees in the Valdosta District, and that they no longer share a separate and distinct community of interest with each other, or with the employees in the nationwide unit of which they formerly were a part. The RD found that the employees of the Thomasville and Moultrie branch offices have been organizationally and operationally integrated into the Valdosta District, to which they are subordinate. The RD concluded that the Valdosta District, including its two branch offices, constitutes a separate appropriate unit, as determined by the criteria of section 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute).
The RD determined that, under HUD, the representative status of the 21 transferred employees is controlled by the representative status of the 15 unrepresented employees in the higher level office to which they are subordinate, i.e., the Valdosta District. In making this determination, the RD concluded that the Valdosta District is not a successor employer because it "is neither a new employer nor a new employing entity, as is required under Port Hueneme, but rather it was a preexisting District Office at the time of the reorganization." RD's Decision at 8 n.4. Accordingly, the RD declined to amend the certification and dismissed the AC petition. Based on his conclusion that subordinate branches of an unrepresented district must, under HUD, also be unrepresented, the RD clarified the consolidated unit to exclude the transferred Thomasville and Moultrie employees.
IV. AFGE's Position (3)
First, AFGE argues that the RD incorrectly interpreted Port Hueneme to mean that successorship principles can be applied only when the gaining employer is a new employer or a new employing entity. AFGE contends that successorship principles may be applied to a pre-existing district office, as here. Applying the Port Hueneme principles, AFGE asserts, results in a finding of successorship and also leads to a determination that the employees in the Thomasville, Moultrie and Valdosta offices are part of the consolidated bargaining unit.
Second, AFGE asserts that by clarifying the consolidated unit, the RD in effect improperly severed the 21 transferred Thomasville and Moultrie employees from the unit and found that they had accreted to the group of 15 unrepresented employees in the Valdosta District Office. AFGE maintains that the transferred employees continue to share a community of interest with the members of the consolidated unit.
Third, AFGE asserts that the RD improperly found that a numerically superior number of employees had accreted to an unrepresented unit. Based on its view that all the employees in the Valdosta District Office should be included in the consolidated unit, AFGE argues that the correct approach is to view the 15 unrepresented employees as outnumbered by the 21 transferred unit employees, or alternatively by the 52,000 employees in the consolidated bargaining unit. AFGE contends that it is uncontroverted that the offices that make up the Valdosta District are appropriate for inclusion in the consolidated unit.
V. Analysis and Conclusions
A. Analytic Framework
In United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA No. 97 (1997) (FISC), the Authority addressed the approach it will take when resolving representation cases arising from reorganizations involving the transfer of employees to a pre-existing or newly established employing entity when there are claims that both successorship and accretion principles apply. The decision stated that, in such cases, the Authority will use the following framework:
(1) Initially, we will determine whether employees who have been transferred are included in, and constitute a majority of, a separate appropriate unit(s) in the gaining entity under section 7112(a). The outcome of this inquiry will govern whether successorship or accretion principles should next be applied.
(2) If it is determined that the transferred employees are included in a separate appropriate unit(s) in the gaining entity under section 7112(a), and if they constitute a majority of the employees in that unit(s), we will apply the remainder of the successorship factors set forth in Port Hueneme with respect to the unit(s) determined to be appropriate. The outcome of the Port Hueneme analysis will determine whether the gaining entity is a successor for purposes of collective bargaining with the labor organization(s) that represented the transferred employees at their previous employer.
(3) If it is determined that the transferred employees are not included in, and constitute a majority of employees in, a separate appropriate unit in the gaining entity, we will apply the Authority's long-established accretion principles. The outcome of this analysis will determine whether the transferred employees have accreted to a pre-existing unit in the gaining entity.
FISC, slip op. at 9-10 (emphasis in original).
B. Application of the Framework
1. The Transferred Employees Are Included in, and Constitute a Majority of the Employees in the Valdosta District, the Gaining Entity, Which Is a Separate Appropriate Unit
The 21 transferred employees constitute a majority of the 36 employees in the Valdosta District. Further, it is not disputed, and the RD found, that the Valdosta District constitutes an appropriate unit for exclusive recognition. However, the RD found that the Valdosta District could not qualify as a successor employer under Port Hueneme because it was neither a new employer, nor a new employing entity, but rather was a pre-existing District Office at the time of the reorganization. Subsequent to the issuance of the RD's decision, the Authority expressly stated that a "gaining organization" may be a successor if it is "a pre-existing or newly-established organization." FISC, 52 FLRA No. 97, slip op. at 9, n.4. Accordingly, contrary to the RD, we conclude that the Valdosta District is the gaining entity in this case within the meaning of Port Hueneme.
In so finding, we reject the RD's reliance on HUD and his conclusion that the representative status of the 21 transferred employees is controlled by the representative status of the 15 unrepresented employees of the Valdosta District Office. In our view, this principle is inconsistent with the purposes and policies of the Statute for the following reasons.
First, HUD improperly sets an arbitrary rule for judging unit appropriateness, and thus is contrary to the well-settled principle that the Authority examines the facts and circumstances of each case individually in determining whether a unit meets the section 7112(a) criteria. For example, FISC, 52 FLRA, slip op. at 11; Walter Reed Army Medical Center, 52 FLRA 852, 857 (1997); U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 47 FLRA 602, 610 (1993) (Wright-Patterson Air Force Base); National Treasury Employees Union, Chapter 243, 39 FLRA 96, 101 (1991). Indeed, in cases decided before HUD the Authority made clear that unit determinations should be made based on the facts of each case. See, for example, Department of Defense, U.S. Military Enlistment Processing Command Headquarters, Western Sector, Oakland Army Base, Oakland, California, 5 FLRA 3, 5 (1981) (Authority found unit appropriate "[b]ased on the particular circumstances" in the case).
Second, by holding that an office that has been organizationally integrated into a higher level office will always have its representational status controlled by the representational status of the employees in the higher level office, HUD is contrary to the rule that the representational status of a minority will not control the representational status of a majority of employees. Cf. Wright-Patterson Air Force Base, 47 FLRA at 612 (where number of employees proposed for inclusion in CU case nearly equals or exceeds number of employees in existing unit, an election will be conducted).
Finally, there are no decisions that follow the principle of HUD relied on by the RD. To the extent our subsequent decisions have not specifically rejected the HUD analysis of unit appropriateness, we do so now.
For the reasons contained in the RD's decision, we agree that the record supports a conclusion that the Valdosta District is an appropriate unit under section 7112(a) of the Statute. In particular, we find that it will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and promote efficiency of the operations of, the agency involved.(4) Accordingly, consistent with the approach set out in FISC, we will apply the remaining Port Hueneme criteria to determine whether there is a successorship.
2. The Valdosta District Has Substantial Continuity With the Losing Entity and the Transferred Employees Perform Substantially the Same Duties Under Substantially Similar Working Conditions
The second Port Hueneme factor requires that the gaining entity have substantially the same mission and that the transferred employees perform substantially the same duties under substantially similar working conditions as before the transfer. The parties stipulate, and the record supports a finding, that the organizational mission and functions of the former Thomasville District were not affected by the reorganization. Although the Thomasville and Moultrie employees have been transferred organizationally to the Valdosta District, they remain in the same work locations, perform essentially the same duties in the same positions under the same immediate supervision, and provide the same services to the same customers as before the reorganization. Under these circumstances, we conclude that the second criterion of Port Hueneme has been met.
3. It Has Not Been Demonstrated That an Election Is Necessary To Determine Representation
Finally, we consider the third Port Hueneme factor: whether an election is necessary to determine the representation rights of the transferred employees. We look to our own precedent, as well as the experience of the private sector, in determining how to evaluate the necessity for an election.
The Authority and the National Labor Relations Board (NLRB) have found a question concerning representation, and therefore directed an election, in only a limited number of situations in cases where successorship or accretion are otherwise appropriate, none of which are present here. Union majority status among employees in the gaining entity is crucial to such a determination. Geo. V. Hamilton, Inc., 289 NLRB 1335 (1988). Thus, both the Authority and the NLRB have found that an election would be necessary to determine representation after a reorganization or consolidation when the number of unrepresented employees in the gaining entity exceeds the number of represented employees. Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245 (1992); Renaissance Center Partnership, 239 NLRB 1247 (1979). The NLRB also has found an election necessary after a reorganization when more than one labor organization represents employees transferred into the new unit. Martin Marietta Co., 270 NLRB 821 (1984).
As the transferred employees constitute a majority of the employees of the gaining entity, and no other labor organization represents, or seeks to represent, the transferred employees, we conclude that it has not been demonstrated that an election is necessary.
C. The Valdosta District Is Properly a Part of the Consolidated Unit
Pursuant to section 7112 of the Statute, "[t]wo or more units which are in an agency and for which a labor organization is the exclusive representative may . . . be consolidated . . . into a single larger unit if the Authority considers the larger unit to be appropriate." Under section 7111 of the Statute, a labor organization may not be accorded exclusive recognition unless the unit is appropriate. Therefore, consolidation is appropriate only if, prior to consolidation, both the unit proposed for inclusion and the gaining unit are separate appropriate units prior to consolidation. See, e.g., Naval Submarine Base, New London, Naval Submarine School, Naval Submarine Support Facility New London, Personnel Support Activity New London and Naval Hospital Groton, 46 FLRA 1354, 1360-61 (1993), adopting RD's conclusions, which relied on Department of Transportation, Washington, D.C., 5 FLRA 646, 652 (1981) (Statute contains provision intended to consolidate units provided proposed consolidated unit is appropriate under criteria of 7112(a)(1)). Moreover, the unit must be appropriate as consolidated. See General Services Administration, Las Vegas Fleet Management Center, Sparks Field Office, Sparks, Nevada, 48 FLRA 1258, 1262 (1993) (to consolidate units, the unit sought must constitute a separate appropriate unit).
Consistent with these requirements, when a successorship claim involves a consolidated unit, the Authority must determine both whether transferred employees constitute a separate appropriate unit in the gaining entity and, in turn, whether that unit may appropriately be included in the consolidated unit.
In this case, AFGE seeks the inclusion of the Valdosta District employees in its consolidated unit. As determined above, the Valdosta District constitutes a separate appropriate unit. It is undisputed and evident that the consolidated unit is also appropriate. As we have found that the transfer of the Thomasville and Moultrie employees resulted in a successorship with respect to the entire Valdosta District, we further find that this successorship exists in a separate appropriate unit that is a constituent part of the nationwide consolidated unit represented by AFGE. As a result, the Valdosta District is included within AFGE's nationwide, consolidated bargaining unit, and the unit description will be amended to reflect this change.
The petition to clarify the unit in Case No. WA-CU-40109 is dismissed, and the RD is directed to take appropriate action in Case No. WA-AC-40108 to amend the certification of unit consistent with this decision.
(If blank, the decision does not have footnotes.)
1. This case was decided 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).
2. At the same time, nine nonsupervisory employees of the Tifton, Georgia Branch Office, who were formerly assigned to the Valdosta District Office, were reassigned to the Albany, Georgia District office. The representative status of those employees is not at issue here.
3. As AFGE did not file a brief in response to the Authority's order granting review, its position is taken from its application for review. The Activity did not file a response to the application for review. Although it filed a response to the Authority's order granting review, that response was untimely and consequently has not been considered.
4. During the pendency of this case, by agreement of the parties, the transferred employees continue to operate under the terms of the collective bargaining agreement that applies to the consolidated unit. The fact that the transferred employees currently operate under the working conditions of the collective bargaining agreement thus is an accommodation reached by the parties until this case is decided, and has not been considered in making an appropriate unit determination in this case.