File 2: Opinion of Member Cabaniss

[ v55 p520 ]


Member Cabaniss, dissenting:

      I would not grant the application for review in this matter and would instead sustain the Regional Director's decision based upon existing precedent.

      The issue posed by the Union in this case was whether COMNAVBASE was the successor employer of the former bargaining unit, which had been broken into three different organizational groups, although all*[n1] of the original bargaining unit employees remained at their Yorktown location. One of those organizational groups was the COMNAVBASE organization (to which six of the original 323 bargaining unit positions were assigned), which is geographically separate from WSY; the other two organizational groups both appear to be physically located at WSY and report through a chain of command to COMNAVBASE, their higher headquarters.

      Given the legal theory presented as to why the desired bargaining unit was appropriate, the Regional Director applied extant case law and concluded that COMNAVBASE did not hold successorship status. That conclusion was not only in accord with our precedent, it was also in accord with the common sense notion that a geographically separate, higher headquarters organization "owning" or supervising only six bargaining unit employees at WSY (out of several hundred) should not be a "successor" employer for a bargaining unit of employees located at just WSY.

      Please note that I agree completely with the concern that our precedent does not adequately assess the impact of reorganizations that modify managerial chains of command, but do not affect day-to-day working conditions of bargaining unit employees. However, I do not see this case as an appropriate vehicle for resolving that issue, because the dispositive issue in this case was the attempt to claim COMNAVBASE (as opposed to some other organizational entity) as the successor employer. I see a substantial difference between the question resolved by the Regional Director and the question being posed by the granting of this application for review: regardless of how the Authority comes out on the question to be answered here, I don't see the final answer as dispositive of whether the Regional Director correctly resolved the question presented to him, based upon the facts unique to the record of this matter.

      I think it entirely within the realm of possibility that the proposed bargaining unit, as sought by the Union, could be found to comply with the statute's requirements for being appropriate, and that the appropriate organizational level of the Navy to be responsible for dealing with that unit could be the COMNAVBASE commander. I do not believe,