53:0173(23)CU - - Navy, Naval Supply Center, Puget Sound, Bremerton, WA and Bremerton Metal Trades Council and Navy, Fleet and Industrial Supply Center, Puget Sound, Bremerton, WA and AFGE and AFGE Local 1931 - - 1997 FLRAdec RP - - v53 p173
[ v53 p173 ]
The decision of the Authority follows:
53 FLRA No. 23
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE NAVY
NAVAL SUPPLY CENTER
BREMERTON METAL TRADES COUNCIL
DEPARTMENT OF THE NAVY
FLEET AND INDUSTRIAL SUPPLY CENTER
BREMERTON METAL TRADES COUNCIL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER ON REVIEW
June 30, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
I. Statement of the Case
In Department of the Navy, Naval Supply Center, Puget Sound, Bremerton, Washington, 51 FLRA 1419 (1996) (Bremerton), the Authority granted, in part, an application for review of the Regional Director's decision and order filed by the Department of the Navy, Fleet and Industrial Supply Center, Puget Sound, Bremerton, Washington ("FISCPS" or "the Activity"). Review was specifically granted as to the following question:
In a representation case arising from a reorganization where both successorship and accretion principles are claimed to apply to the same employees, how should the Authority resolve the representation issues raised by the petitions?
On the same day that Bremerton issued, the Authority granted an application for review in a companion case, United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 51 FLRA 1414 (1996) (FISC, Norfolk I), as to the very same question. In both cases, the Authority ordered the parties to file briefs and then invited interested persons to do so as amici curiae. 61 Fed. Reg. 35,211 (July 5, 1996).(1) Subsequently, the Authority issued its decision and order on the application granted in FISC, Norfolk I, resolving the question set forth above. See United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950 (1997) (FISC, Norfolk II). Accordingly, we apply the legal framework established in FISC, Norfolk II here. For the reasons that follow, we affirm the Regional Director's decision and order.
II. Background and Regional Director's Decision and Order
Pursuant to a realignment of Navy operations, 19 nonprofessional employees of the Naval Weapons Station, Concord, California, were transferred administratively but not physically to FISCPS.(2) These employees, who were represented by the American Federation of Government Employees, Local 1931, AFL-CIO (AFGE 1931) at the time of the transfer, compose a new organizational entity called the FISCPS Concord Detachment.
After the transfer, the Activity filed a petition averring that the Concord Detachment accreted to a unit of FISCPS employees represented by the Bremerton Metal Trades Council, AFL-CIO (the BMTC) and requesting that the BMTC unit be clarified to reflect this change.(3) AFGE 1931 opposed the petition on the ground that FISCPS is the Concord Detachment's successor employer and, as such, has an obligation to bargain with AFGE 1931 over matters affecting conditions of employment of Detachment employees. The BMTC, agreeing with AFGE 1931, disclaimed its representational interests in the Concord Detachment and waived its right to appear at the hearing in this matter.
The Regional Director denied the Activity's petition, concluding that the Concord Detachment is exclusively represented by AFGE 1931 and that FISCPS is the Detachment's successor employer. The Regional Director framed his analysis by setting forth the three-pronged successorship test established in Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme) and applying it to his findings of fact. Under this test, a gaining entity is a successor, and a union retains its status as the exclusive representative of the employees transferred to the successor, when:
(1) An entire recognized unit, or a portion thereof, is transferred and the transferred employees: (a) are in an appropriate bargaining unit under section 7112(a) of the Federal Service Labor Management-Relations Statute (the Statute) after the transfer; and (b) constitute a majority of the employees in the unit;
(2) The gaining entity has substantially the same organizational mission as the losing entity, with the transferred employees performing substantially the same duties and functions under substantially similar working conditions in the gaining entity; and
(3) It has not been demonstrated that an election is necessary to determine representation.
Port Hueneme, 50 FLRA at 368.
With respect to the first prong, the Regional Director concluded that the Concord Detachment is an appropriate unit.(4) This conclusion was based on findings that the Concord Detachment has a clear and identifiable "community of interest" and that treating it as a separate unit would promote "effective dealings" with, and "efficiency of operations" of, the agency involved.(5)
As for "community of interest," the Regional Director stated that the realignment centralized certain operations affecting the Concord Detachment and, in this respect, supported the Activity's petition. For example, oversight responsibilities and functions related to personnel servicing and labor relations were shifted from the Naval Ordnance Center, Pacific Division, Seal Beach, California, to FISCPS.(6) In addition, responsibility for conducting weekly audits of the Concord Detachment and for fielding its calls for technical assistance was shifted from FISC-San Diego to FISCPS. However, the Regional Director also made findings supporting AFGE 1931's position and determined that those findings controlled. In particular, the Regional Director found that: (1) the Concord Detachment, located 700 miles from FISCPS, is geographically isolated; (2) there is virtually no interchange--including training, job transfers, and task sharing--between Concord Detachment employees and FISCPS personnel; (3) the Concord commuting area is the area of consideration for vacancies, promotions, and reductions in force; (4) Concord Detachment vacancies are not advertised at FISCPS and vice versa; and (5) although personnel and labor-relations services are centralized at the FISCPS site, the Director of the Concord Detachment has authority over day-to-day operations in virtually all matters.
As for "effective dealings" and "efficiency of operations," the Regional Director found that "[t]he Concord Detachment employees are not so functionally integrated with other FISCPS components that a local unit would artificially fragment or cross the organizational lines of FISCPS in a significant manner." Decision and Order at 10. The Regional Director noted that although functions related to personnel and labor-relations services are centralized at the FISCPS site, servicing the Concord Detachment would require sending HRO personnel from FISCPS to Concord regardless of whether the Concord Detachment is established as a separate unit. In this respect, the Regional Director stated: "The record does not reflect that the costs of dealing with a separate unit of Concord Detachment employees would be significantly higher than the current costs associated with providing personnel and other services to this remotely located operation." Id.
With respect to the second prong of Port Hueneme, the Regional Director found that the mission, work, location, equipment, facilities, and general working conditions of the employees at issue are essentially the same under FISCPS as they were prior to the realignment. As for the third prong, the Regional Director found that "no election is necessary to determine the representational status" of the Concord Detachment. Id. at 12.
Having found all three prongs of Port Hueneme satisfied, the Regional Director stated that when his decision and order became final, he would issue an Amendment of Recognition to reflect that AFGE 1931 is the exclusive representative of the Concord Detachment.
III. The Activity's Position (7)
The Activity contends that the Regional Director decision that was affirmed by the Authority in FISC, Norfolk II compels a conclusion that the Concord Detachment accreted to the BMTC unit. In further support of its accretion argument, the Activity points out that in the unchallenged portion of the decision and order at issue here, the Regional Director determined that the FISC detachment at Everett, Washington, accreted to the BMTC unit. The Activity also argues that applying successorship principles to cases of this kind "could lead to an increase in the number of bargaining units in spite of tremendous [Activity] downsizing." Application at 3-4.
IV. Analysis and Conclusions
A. Analytic Framework for Resolving Representation Cases Where Both Successorship and Accretion Principles Are Claimed to Apply
In FISC, Norfolk II, the Authority adopted the following framework for resolving cases arising from a reorganization where employees were transferred to a pre-existing or newly established organization (the "gaining organization") and both successorship and accretion principles are claimed to apply:
(1) Initially, the Authority will determine whether, under section 7112(a) of the Statute, the transferred employees are included in, and constitute a majority of, a separate appropriate unit in the gaining organization. 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 and constitute a majority of a separate appropriate unit in the gaining organization, the Authority will apply the remainder of the successorship factors set forth in Port Hueneme to the unit determined to be appropriate. The outcome of the Port Hueneme analysis will determine whether the gaining organization is a successor for purposes of collective bargaining with the labor organization that represented the transferred employees at their previous employer.
(3) If it is determined that the transferred employees are not included in or do not constitute a majority of a separate appropriate unit in the gaining organization, we will apply accretion principles. The outcome of this analysis will determine whether the transferred employees have accreted to a pre-existing unit in the gaining organization.
FISC, Norfolk II, 52 FLRA at 958-59.
B. Application of the Framework
1. The Transferred Employees Are Included in, and Constitute a Majority of, a Separate Appropriate Unit
A unit is appropriate under section 7112(a) of the Statute if: (1) the employees at issue share a clear and identifiable community of interest; (2) the unit promotes effective dealings with the agency involved; and (3) the unit promotes efficiency of operations of the agency involved. FISC, Norfolk II, 52 FLRA at 959. Determinations as to each element are made on a case-by-case basis by balancing the relevant findings of fact set forth in the Regional Director's decision and order. Id. at 960.
a. Community of Interest
A clear and identifiable "community of interest" exists where the transferred employees have significant employment concerns or personnel issues that are different or unique from those of the employees in the gaining organization. Id. In concluding that the Concord Detachment satisfies this standard, the Regional Director relied on American Federation of Government Employees, Local 2004, 47 FLRA 969, 972-73 (1993) (Local 2004) and Defense Logistics Agency, Defense Contract Management Command, Defense Contract Management District, North Central, Defense Plant Representative Office--Thiokol, Brigham City, Utah, 41 FLRA 316, 319-21 (1991) (DPRO Thiokol).
In Local 2004, a group of employees was transferred administratively but not physically to the gaining organization. Operations were centralized insofar as the gaining organization handled matters related to the transferred group's manpower needs, budgeting, and financial expenditures. In addition, the director of the transferred group reported to the gaining organization, and both the transferees and the employees of the gaining organization had similar job descriptions, skills, and assignments. Nevertheless, the Authority upheld the Regional Director's determination that the transferred group had a clear and identifiable community of interest because: (1) there was no interchange between the two groups of employees; (2) the competitive areas for merit promotion and reductions in force remained local; (3) the transferees were the only employees within the gaining organization to receive work assignments from outside the gaining organization; and (4) the transferred group set its own local labor-relations and personnel policies, which covered hiring, promotions, and discipline.
DPRO Thiokol involved a proposed local unit within one of the activity's districts. The district was centralized in that all employees within it were essentially interchangeable in terms of function, job series, and position descriptions; districtwide regulations controlled many aspects of conditions of employment; procedural reviews were conducted at the district level; and the activity held annual conferences that brought together employees from various sites within the district. Despite those factors, the Authority affirmed the Regional Director's conclusion that the proposed local unit shared a clear and identifiable community of interest because: (1) the employees at issue had little interchange with their counterparts at other local offices within the district; (2) the area of consideration for reductions in force was local; (3) certain working conditions and assignments were unique to the proposed local unit; (4) decisions concerning numerous conditions of employment were made at the local level; and (5) the proposed local unit was geographically isolated from other local offices within the district.(8)
As the Regional Director in the instant case pointed out, the facts at issue here parallel those in Local 2004 and DPRO Thiokol. Here, Activity operations are centralized insofar as oversight, personnel and labor-relations services, audits, and technical assistance are now provided by FISCPS. However, the Concord Detachment continues to have purely local concerns. In particular, the Regional Director found that: (1) Concord Detachment employees have virtually no interchange with their counterparts at FISCPS; (2) the Concord commuting area is the area of consideration for vacancies, promotions, and reductions in force; (3) Concord Detachment vacancies are not advertised at FISCPS and vice versa; (4) the director of the Concord Detachment has day-to-day authority over virtually all matters; and (5) the Concord Detachment is geographically isolated from FISCPS. The fact that the BMTC disclaimed its representational interests in the Concord Detachment, although not dispositive, is yet another indication that the Detachment's concerns are distinct from those of the larger FISCPS community.
The Activity argues that the Regional Director decision that was affirmed by the Authority in FISC, Norfolk II compels a conclusion that the Concord Detachment does not satisfy the "community of interest" criterion. However, FISC, Norfolk II is distinguishable in a number of key respects. For instance, in FISC, Norfolk II, there was interchange between FISC and the detachments at issue, as evidenced by the facts that certain detachment employees were given positions, job responsibilities, and training in connection with FISC's activity-wide hazardous materials program. In addition, FISC administered and processed all matters related to personnel polices and labor-relations services, and there was no evidence that the detachments at issue had any local authority over matters affecting the working conditions of their employees. Finally, FISC, Norfolk II was devoid of evidence that the detachments had local areas of consideration, advertised their vacancies only locally, or experienced significant geographic isolation.
We also note that the circumstances of the Concord Detachment differ in several respects from those of the Everett Detachment, the other proposed unit discussed in the decision and order at issue here. For instance, the Everett Detachment is located only 100 miles from FISCPS and, therefore, is less geographically isolated than the Concord Detachment. In addition, whereas the Everett Detachment is located at the Naval Station, Everett, Washington, the Concord Detachment is located at the Naval Weapons Station, Concord, California. In this respect, the Regional Director found that the Concord outfit has "a variety of mission functions unique to its role as a Naval Ordnance facility." Decision and Order at 5 (emphasis added). Finally, AFGE 1931 disclaimed its interest in representing the Everett employees.
Based on the foregoing and consistent with the Regional Director's determination on this issue, we conclude that the Concord Detachment has a clear and identifiable community of interest.
b. Effective Dealings
The "effective dealings" criterion pertains to the relationship between management and the exclusive representative selected by the proposed unit. FISC, Norfolk II, 52 FLRA at 961. Factors bearing on this criterion include the locus and authority of the office that administers personnel policies affecting the proposed unit and the past collective bargaining experience of the parties. Id.
Although the office responsible for administering personnel and labor-relations policies is located at FISCPS, representatives of the office travel to the Naval Weapons Station, Concord in order to service the Concord Detachment. The Regional Director found that the Activity's effectiveness is not impaired by this arrangement, and there are no findings to suggest that recognizing the Concord Detachment as a separate bargaining unit would render this arrangement less effective. With respect to bargaining history, AFGE 1931 has represented nonprofessional employees of the Naval Weapons Station, Concord since 1964. In addition, Concord Detachment employees presently are covered by a collective bargaining agreement negotiated by AFGE 1931. On the basis of these findings, we conclude that recognizing the Concord Detachment as an appropriate unit would promote effective dealings.
c. Efficiency of Operations
The "efficiency of operations" criterion pertains to whether the structure of the bargaining unit bears a rational relationship to the operational and organizational structure of the agency. Id. In determining the effect of a proposed unit on the efficiency of agency operations, the Authority considers factors pertaining to cost, productivity, and resources. Id. at 962. In the instant case, the Regional Director stated that "[t]he record does not reflect that the costs of dealing with a separate unit of Concord Detachment employees would be significantly higher than the current costs associated with providing personnel and other services to this remotely located operation." Decision and Order at 10. There were no findings to suggest that requiring bargaining with a separate unit of Concord Detachment employees would adversely affect the Activity's productivity or resource allocation. Accordingly, we conclude that recognizing the Concord Detachment as an appropriate unit would promote efficiency of operations.(9)
The foregoing findings as to community of interest, effective dealings, and efficiency of operations--along with the uncontroverted finding that the employees at issue constitute 100 percent of the proposed unit--lead us to conclude that the transferred employees are included in, and constitute a majority of, a separate appropriate unit and, therefore, satisfy the first prong of Port Hueneme.(10) Accordingly, under the framework established in FISC, Norfolk II, the analysis now shifts to whether the second and third prongs of Port Hueneme are satisfied.
2. The Concord Detachment's Mission, Duties, Functions, and Working Conditions Have Remained Substantially the Same
With respect to the second prong of the successorship test, the Regional Director found that the mission of the losing entity, the Naval Weapons Station, Concord, was to maintain and operate a Department of Defense explosive ordnance loading and trans-shipment facility. According to the Regional Director, the employees at issue supported that mission by performing functions related to ordering, purchasing, controlling, and issuing nonordnance supplies. The Regional Director also found that the mission of the gaining organization, FISCPS, is to provide supply and support services to assigned shore and fleet activities, including not only the Naval Weapons Station, Concord but also other naval and governmental entities. Although FISCPS' mission is broader than that of the losing entity, the employees at issue, under FISCPS, remain responsible for servicing only the Naval Weapons Station, Concord. Therefore, to the extent that it affects the employees at issue, FISCPS' mission is substantially similar, if not identical, to that of the losing entity. See Port Hueneme, 50 FLRA at 375.
As for the remaining criteria under prong two of Port Hueneme, the Regional Director found, and the Activity does not dispute, that "[t]he transferred employees perform the same duties and functions under the same general working conditions as employees of FISCPS as they did as employees of NWS Concord." Decision and Order at 12. In particular, the Regional Director found that "[t]he Detachment continues to perform the functions of purchasing, receipt, control, storage and issuance of non-ordnance supplies . . . ." Id. It is also undisputed that the Detachment "performs these functions in the same location, using the same facilities, equipment, and personnel as did NWS Concord prior to the transfer." Id.
Consistent with the Regional Director's analysis, we are persuaded that the Concord Detachment satisfies the second prong of Port Hueneme.
3. An Election Is Not Necessary to Determine the Concord Detachment's Representational Status
With respect to the third prong of the successorship test, the Regi