U.S. Department of the Navy, Commander, Naval Base, Norfolk, Virginia (Agency) and National Association of Government Employees, Local R4-1, SEIU, AFL-CIO (Union)
[ v56 p328 ]
56 FLRA No. 47
U.S. DEPARTMENT OF THE NAVY
COMMANDER, NAVAL BASE
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-1, SEIU, AFL-CIO
DECISION AND ORDER ON REVIEW
May 5, 2000
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1]
I. Statement of the Case
By order dated June 25, 1999, the Authority granted the Union's application for review of the Regional Director's (RD's) decision dismissing the Union's petition. In granting review, the Authority asked the parties to submit additional briefs addressing the following question:
How should the Authority assess the effect on bargaining units of reorganizations that modify portions of the chains of command at managerial levels, but do not affect the day-to-day working conditions of bargaining unit employees?
U.S. Department of the Navy, Commander, Naval Base, Norfolk, Virginia, 55 FLRA 514, 519 (1999) (COMNAVBASE Norfolk) (Member Cabaniss dissenting). The Authority also published a Federal Register Notice inviting interested persons to address the issue. See 64 Fed. Reg. 35,658 (July 1, 1999).
The Union and the Agency filed briefs. The FLRA's Office of the General Counsel (OGC) and the American Federation of Government Employees (AFGE) filed amicus curiae briefs. [ v56 p329 ]
For the reasons that follow, we hold that, in cases involving agency reorganizations, where there are competing claims of successorship, the Authority will first evaluate the proposed bargaining units that will most fully preserve the status quo in terms of bargaining unit structure and the relationship of employees to their chosen exclusive representative. Further, we hold that a change in an agency's chain of command does not, by itself, render an existing unit inappropriate. Rather, the Authority will evaluate how such a change has affected each of the three criteria for appropriate units, as applied to the existing unit and any proposed, new units.
With respect to the petition at issue here, we find that there is insufficient record evidence for us to determine whether the existing unit remains appropriate. Accordingly, we remand this case to the RD for further findings consistent with this decision.
II. Background and RD's Decision
The facts are set out in detail in COMNAVBASE Norfolk, 55 FLRA 514, and are summarized briefly here. The Union was the certified, exclusive representative of an installation-wide unit of employees at the Weapons Station Yorktown (WSY). The Agency underwent reorganizations, which split the original WSY's functions among three entities: (1) the new WSY; (2) the Atlantic Ordnance Command (AOC); and (3) the Housing Department and the Regional Resources Service Office (RRSO) of the U.S. Department of the Navy, Commander, Naval Base, Norfolk (COMNAVBASE).
The commanding officers of the new WSY and AOC have full authority to set working conditions and labor relations policies for WSY and AOC employees, respectively. They both report to the commanding officer of COMNAVBASE. The RIF competitive area is now split among the new WSY, AOC, and COMNAVBASE. While the Satellite Office Yorktown provides personnel services to WSY and AOC employees, the Human Resources Office Norfolk provides those services to COMNAVBASE employees. The reorganization did not change the original WSY employees' duties or functions, their supervisors, or their work locations, with one temporary exception. [n2]
The Agency and the Union filed competing representation petitions. The Agency asserted, in two separate petitions, that the existing unit has been split into two appropriate units -- one consisting of employees of the new WSY, and the other consisting of AOC employees -- and that the six employees transferred to COMNAVBASE are not included in either unit. The Agency claimed that AOC is a successor to the original WSY, and that the employees remaining at WSY also constitute an appropriate unit, separate from the AOC employees. The Union asserted that COMNAVBASE is a successor employer with respect to all employees of the original WSY, and sought certification of a single unit composed of all employees of the new WSY, AOC, and the six employees who were transferred to COMNAVBASE.
In resolving the competing petitions, the RD applied the criteria for successorship set forth in Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363, 368 (1995) (Port Hueneme). [n3] The RD found that AOC is a successor to the original WSY and that the employees transferred to AOC constitute an appropriate unit. [n4] The RD also found that employees remaining at WSY constitute an appropriate unit, separate from the AOC employees. Accordingly, the RD granted the Agency's petitions.
In resolving the Union's petition, the RD "attempt[ed]" to apply the Port Hueneme criteria. RD Decision at 16. As an initial matter, the RD stated that the employees now work for three separate activities -- the new WSY, AOC, and COMNAVBASE -- and that, as a result, COMNAVBASE cannot constitute a successor employer to the original WSY. The RD nonetheless proceeded to apply the three criteria set forth in section 7112(a) of the Statute, in order to determine whether the Union's proposed unit is appropriate.
With regard to the first criterion, the RD found that employees in the Union-proposed unit do not share a clear and identifiable community of interest because the employees of WSY, AOC, and COMNAVBASE, respectively, support three different missions and are in three different competitive areas for RIF. With regard to the second criterion, the RD determined that the proposed unit does not promote effective dealings with the [ v56 p330 ] Agency because the unit would not bear a rational relationship to the Agency's operational and organizational structure. In this connection, the RD found that the employees' working conditions are established by three separate commanding officers, and their personnel services are provided by two different human resource offices. With regard to the third criterion, the RD determined that the proposed unit would not promote the efficiency of Agency operations because the unit would only include 3 of 63 RRSO employees and 3 of 73 Housing Office employees. Based on the findings regarding the three criteria, the RD concluded that the Union's proposed unit is not appropriate. [n5] Accordingly, he dismissed the Union's petition.
III. Authority's Grant of the Union's Application for Review
The Authority granted the Union's application for review of the RD's decision, finding that reconsideration of Authority precedent is warranted under section 2422.31(c)(2) of the Authority's Regulations. [n6] Specifically, the Authority found that existing precedent does not provide sufficient guidance to determine whether organizational changes affecting the lines of command, but not otherwise altering bargaining unit employees' working conditions, impair the continued appropriateness of the existing unit. See COMNAVBASE Norfolk, 55 FLRA at 514.
IV. Positions of the Parties
The Union asserts that "installation (geographic)" bargaining units have frequently been established within the Agency, and that fragmentation of such units should be avoided. Union Brief at 3. According to the Union, the Authority should find that, subsequent to an agency reorganization, an existing, installation-wide bargaining unit remains appropriate where the unit employees: (1) continue to work at the same location; (2) experience minimal interchange with employees of other institutions; and (3) continue to provide "functional line support" to the installation mission. Id. at 3-4. The Union contends that the unit it proposes meets all three of these criteria. In addition, the Union maintains that the employees' day-to-day working conditions and immediate chains of command have not changed, and that all of the employees are ultimately under the chain of command of the commanding officer of COMNAVBASE. [n7]
The Agency asserts that existing precedent provides sufficient guidance for determining whether the Union's proposed unit is appropriate. Nevertheless, the Agency argues that, to the extent that the precedent needs further explanation, the Authority should consider only cases involving agency reorganizations that alter the employees' chains of command, but do not involve physical transfers.
According to the Agency, its "long standing policy" is to have bargaining units established along activity lines because "the authority and the responsibility for the labor-management relationship is delegated to the activity and the activity commander." Agency Brief at 12. The Agency contends that although many activities may be located at the same installation, each one has its own commanding officer and mission function, and the different activities "have little in common except geographic proximity." Id.
The Agency argues that the employees in the Union-proposed unit do not share a community of interest. In this connection, the Agency claims that the employees work for three different activities, and that recognition of the unit would result in Union representatives bargaining on behalf of employees of activities other than their own -- employees with whom they do not share, among other things, missions, functions, competitive areas for RIF, and working conditions. Additionally, the Agency asserts, Union representatives would be required to bargain with management located at Norfolk, which is 30 miles away from the installation, when representing employees of the Housing Department and RRSO of COMNAVBASE.
The Agency also contends that the Union-proposed unit would not promote effective dealings and efficiency of Agency operations, because it would place [ v56 p331 ] the three Housing Department employees and three RRSO employees located at Yorktown in a unit that does not include other Housing Department and RRSO employees. According to the Agency, this would complicate the job of the Housing and RRSO directors, because they would be required to administer two separate sets of personnel policies and working conditions -- one for the employees at Yorktown, and one for their employees located at other installations.
V. Amicus Briefs
The OGC argues that the three appropriate unit criteria must be given equal weight, and that the Federal Labor Relations Council (FLRC) expected that weighing the criteria this way would reduce unit fragmentation and provide for more comprehensive bargaining units. According to the OGC, the legislative history of the Statute does not reflect that Congress intended the Authority to apply the three criteria any differently from the FLRC, and as such, the Authority should make appropriate unit determinations in a manner that prevents unit fragmentation and promotes more comprehensive units. The OGC also contends that chain of command issues are appropriately considered in assessing all three of the appropriate unit criteria.
The OGC proposes that, in assessing a claim that an agency reorganization has affected the appropriateness of an existing unit, the Authority should first determine whether and how the reorganization changed unit employees' day-to-day working conditions. According to the OGC, it is necessary to assess the factors underlying the appropriate unit criteria "from two perspectives: how the unit functioned prior to the change and how it functions after the change." OGC Brief at 18. The OGC further contends that "[t]he facts must be assessed to determine whether the change was a 'paper' reorganization, i.e., nothing more than a technical change in the name of the activity or agency, or a change in the level of recognition; or whether the change affected the character and scope of the unit significantly enough to render it inappropriate." Id. at 6. The OGC asserts that parties are obligated to present the RD with whatever evidence they possess concerning the three appropriate unit criteria.
AFGE argues that the Authority should find that an existing unit remains appropriate where, despite a change in the agency's chain of command, the employees remain under the ultimate control of the agency, and their day-to-day working conditions remain the same. AFGE asserts that chain of command issues are not appropriately considered in assessing whether employees share a community of interest, but only in considering whether the proposed unit would promote effective dealings and efficiency of agency operations. AFGE also asserts that the Authority should apply the private sector's "alter ego" doctrine to cases involving reorganizations.
Further, AFGE contends that, in reorganization cases, activities should have the burden to demonstrate how the proposed unit would negatively affect effective dealings and efficiency of operations, and how such negative effects would outweigh: (1) the employees' community of interest; (2) the fragmentation caused by the reorganization; and/or (3) the instability that results when an election is directed. AFGE Brief at 10.
VI. Analysis and Conclusions
The Union agrees with the RD's finding that the Agency's separate proposed units are appropriate. However, it claims that the single successor unit it proposes is also appropriate and should be certified by the Authority. As a general matter, in assessing the appropriateness of a petitioned-for bargaining unit, the Authority does not consider whether an alternative unit that is not included in a petition would be more appropriate than the petitioned-for unit, because the Statute requires only that the petitioned-for unit be appropriate. Department of the Navy, Naval Supply Center, Puget Sound, Bremerton, Washington, 53 FLRA 173, 183 n.9 (1997) (Bremerton). This principle does not, however, resolve the issue presented by this case, which is how the Authority should consider two competing petitions to clarify a bargaining unit after a reorganization. In this connection, the Authority has held that more than one unit may be appropriate in a single employment setting. See Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Ohio, 53 FLRA 1114, 1128-32 (1998) (DLA Columbus); see also U.S. Department of Defense, Dependents Schools, 48 FLRA 1076 (1993). Accordingly, we provide guidance as to which petition should be considered first in cases involving more than one petition.
A. How The Authority Will Resolve Competing Claims of Successorship.
The Authority has held that there is a preference in the Statute for preventing unit fragmentation when an existing unit otherwise remains appropriate. See U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 55 FLRA 359, 361 (1999) (Wright-Patterson AFB). See [ v56 p332 ] also Library of Congress and Fraternal Order of Police, Library of Congress Police Force Labor Committee, 16 FLRA 429, 431 (1984) (Library of Congress). Consistent with this statutory preference, the Authority has also held that successorship claims should be resolved prior to accretion claims because a finding of successorship permits a union to retain its status as the employees' chosen, exclusive representative, rather than altering the relationship between the employees and their chosen representative by placing the employees in a different unit. See United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 954 (1997) (FISC). [n8]
Consistent with these policies, we hold that, when we are presented with competing successorship claims alleging different appropriate units, we will first consider the appropriate unit claim that will most fully preserve the status quo in terms of unit structure and the relationship of employees to their chosen exclusive representative. If we find that a petitioned-for, existing unit continues to be appropriate, then we will not address any petitions that attempt to establish different unit structures, because the Statute requires only that a proposed unit be an appropriate unit, not the most, or the only, appropriate unit. See Bremerton, 53 FLRA at 183 n.9.
In the instant case, the Union's petition would retain the existing unit structure and the Agency's petitions would fragment the existing unit. Accordingly, we first address the Union's petition.
B. How Changes in Chain of Command Will Be Considered in Assessing Whether a Petitioned-for Unit Is Appropriate.
The RD found that, after the reorganization, the unit employees could not remain in a single unit because they began reporting to different commanding officers and directors, although all of those individual commanding officers and directors began reporting directly to COMNAVBASE. As such, the RD's analysis of the appropriateness of the Union's petitioned-for unit effectively made dispositive the fact that, after the reorganization, the unit employees were in three different immediate chains of command.
There is Authority precedent supporting a finding that changes in chain of command may, by themselves, render an existing unit inappropriate. See Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 46 FLRA 502 (1992) (Defense Mapping Agency); see also United States Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 11 FLRA 591 (1983) (Naval Avionics Center). However, other Authority precedent indicates that a change in chain of command does not, by itself, render an existing unit inappropriate. See, e.g., USA Darcom Materiel Readiness Support Activity (MRSA), Lexington, Kentucky, 1 FLRA 430 (1979) (USA Darcom). Accordingly, it is necessary to address these apparently inconsistent lines of cases.
1. A Change in Chain of Command, By Itself, Will Not Render an Existing Unit Inappropriate.
Several reasons support a conclusion that a modification to employees' chain of command should not, by itself, render an existing unit inappropriate. First, section 7112(a) of the Statute explicitly recognizes that a unit may be established on an agency-wide basis. See 5 U.S.C. § 7112(a) ("The Authority shall determine in each case whether . . . the appropriate unit should be established on an agency, plant, installation, functional, or other basis . . .") (emphasis added). As agencies can have several layers of management and different chains of command, the fact that the Statute provides for the possibility of agency-wide units implies that employees who work for the same agency, but are in different chains of command, are not automatically precluded from constituting a single appropriate unit.
Second, the Authority has held that, in determining whether an existing unit remains appropriate after a reorganization, it will focus on the changes caused by the reorganization, see Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, North Carolina, 45 FLRA 281, 286 (1992), and assess whether those changes are sufficient to render a recognized unit inappropriate. See DLA Columbus, 53 FLRA at 1122-23. The Authority makes appropriate unit determinations on the basis of a variety of factors, without specifying the weight of any individual factors. See, e.g., American Federation of Government Employees, Local 2004, 47 FLRA 969, 972 (1993) (Local 2004). It would be inconsistent with this practice to hold that changes in one factor, chain of command, renders [ v56 p333 ] inappropriate an existing unit, without assessing whether and how those changes have affected the variety of other factors that are considered in assessing each of the unit appropriateness criteria. [n9]
Third, as noted above at section VI.A., the Authority has held that there is a preference in the Statute for avoiding fragmentation of bargaining units when those units otherwise remain appropriate. See Wright-Patterson AFB, 55 FLRA at 361. Cf. Defense Supply Agency, Defense Contract Administration Services Region (DCASR), San Francisco, California, Defense Contract Administration Services District (DCASD), Salt Lake City, Utah, 4 FLRC 669, 682 (1976) (DCASR) (explaining that the three appropriate unit criteria developed in order to decrease unit fragmentation). Holding that a change in chain of command, by itself, can render an existing unit inappropriate, could result in existing units being fragmented due to changes that do not otherwise affect unit appropriateness. Such a holding would be inconsistent with this well-established principle.
For the foregoing reasons, we hold that a change in chain of command will not, by itself, be found to render an existing unit inappropriate. To the extent that the Authority's decisions in Defense Mapping Agency, 46 FLRA 502, and Naval Avionics Center, 11 FLRA 591, imply that chain of command changes may, by themselves, render an existing unit inappropriate, we will no longer follow those decisions.
2. Chain of Command Issues Are Properly Considered in Addressing Each of the Three Appropriate Unit Criteria.
As noted above, in cases involving successorship claims following agency reorganizations, the Authority determines whether the changes brought about by the reorganization are sufficient to eliminate the appropriateness of the recognized unit. See DLA Columbus, 53 FLRA at 1122-23. In reaching that determination, the Authority considers whether the proposed unit meets all three of the appropriate unit criteria set forth in section 7112(a) of the Statute. See FISC, 52 FLRA at 959. The Authority has set forth a wide variety of factors to be considered with respect to each of the three criteria, but has not specified the weight of individual factors necessary to establish an appropriate unit. See Local 2004, 47 FLRA at 972.
The community of interest criterion is intended to "ensure that it is possible for [employees] to deal collectively [with management] as a single group." FISC, 52 FLRA at 960 (citations omitted). The "effective dealings" criterion pertains to the relationship between management and the exclusive representative selected by the proposed unit. See FISC, 52 FLRA at 961. 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. FISC, 52 FLRA at 961.
Although AFGE asserts that chain of command issues should not be considered in assessing the community of interest criterion, changes in chains of command may affect unit employees' ability to deal collectively with management as a single group. This is true particularly in situations where unit employees have been organizationally separated into different chains of command, with different management officials holding independent bargaining authority. As such, contrary to AFGE's assertion, and consistent with the OGC's arguments and Authority precedent, we hold that chain of command issues are appropriately considered in assessing whether unit employees share a community of interest. See id. at 960-61.
Consistent with our precedent, and the OGC's arguments, changes in chain of command may also be relevant in assessing the second and third appropriate unit criteria. In assessing the second criterion -- whether recognition of a proposed unit would promote effective dealings -- the Authority considers, among other things, the limitations, if any, on the negotiation of matters of critical importance to employees in the proposed unit, and the level at which labor relations policy is set in the agency. See id. at 961. To the extent that a change in chain of command also changes which individual or organizational entity has the authority to set labor relations policy and/or negotiate with the exclusive representative of the unit, the change in chain of command could affect whether recognition of the proposed unit would promote effective dealings.
With regard to the third criterion -- efficiency of agency operations -- the Authority considers whether the structure of the bargaining unit bears a rational relationship to the operational and organizational structure of the agency. See id. at 962. To the extent that a change in chain of command may also bring changes to the agency's operational and organizational structure, the change in chain of command could create a situation where the existing unit no longer bears a rational relationship to that structure. [ v56 p334 ]
Consistent with the foregoing principles, we hold that, in assessing unit appropriateness, it is proper to consider whether changes in chains of command have affected any or all of the three appropriate unit criteria.
C. The Record Is Insufficient to Determine Whether COMNAVBASE Is a Successor Employer.
The Authority will find that a gaining entity is a successor, and a union retains its status as the exclusive representative of employees who are 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 after the transfer; and
(b) constitute a majority of the employees in such 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 determined that an election is necessary to determine representation.
See Port Hueneme, 50 FLRA at 368.
1. The Entire Recognized Unit Was Transferred to COMNAVBASE.
The term "transferred employees" is a generic term that refers to the organizational movement of employees within an agency or between agencies, regardless of the nature of the personnel actions involved. See DLA Columbus, 53 FLRA at 1126-27. There is no dispute, and it is clear from the record, that the employees have been organizationally moved, and all report to COMNAVBASE, either directly or indirectly. Consequently, we find that the employees have been transferred for purposes of the Port Hueneme analysis.
2. The Record Is Insufficient for Us to Determine Whether the Transferred Employees Are in a Separate Appropriate Bargaining Unit.
a. Community of Interest
In determining whether a unit remains appropriate after an agency reorganization, the Authority focuses on the specific changes caused by the reorganization. See DLA Columbus, 53 FLRA at 1122-23. Thus, in assessing the first appropriate unit criterion, the focus is on whether the reorganization brought about changes to the bargaining unit that were significant enough to eliminate the previous community of interest. [n10]
There is no indication that the fact that some employees report to "commanding officers" who report to COMNAVBASE, while others report to "directors" who report to COMNAVBASE, affects the unit employees' ability to deal with management -- at a COMNAVBASE level -- as a single group. In this connection, as discussed previously, section 7112(a)(1) of the Statute expressly provides for the possibility of appropriate installation-wide, and agency-wide, units. Although the functions performed by the original WSY are now split among three entities, the record evidence supports a finding that the unit employees continue to perform the same functions that they performed prior to the reorganization. See RD Decision at 6 (employees transferred to AOC); 7 (employees transferred to Housing Department of COMNAVBASE); and 8 (employees transferred to RRSO of COMNAVBASE). The unit employees are all at the same geographic site. See id. at 17. They continue to share unique conditions of employment and distinct local concerns, in that ordnance activities performed at Yorktown create safety concerns not presented to COMNAVBASE employees at other locations. See id. at 9 n.10.
On the other hand, the employees are in three separate competitive areas for RIF, see id. at 17, a factor which might indicate separate interests of employees. [n11] Further, it is unclear from the record whether the employees continue to be subject to the same working conditions, and whether they continue to be governed by the same personnel policies. In this regard, while the parties agree that the day to day working conditions of [ v56 p335 ] employees were not affected by the reorganization, itself, the RD specifically found that the authority to set working conditions and labor relations policy is under the authority of separate commanders. See id. This finding indicates that the working conditions and personnel policies of these employees would diverge. [n12] The extent of this divergence could affect whether the employees continue to share a community of interest.
Further, the record does not contain the number of, or provide any information regarding, other COMNAVBASE employees who would not be included in the petitioned-for unit. [n13] Thus, we are unable to assess whether the petitioned-for unit would constitute an appropriate unit, separate and apart from those employees. [n14]
Because the record is incomplete, we are unable to determine whether the employees continue to share a separate community of interest. Accordingly, we remand this issue to the RD for further findings. [n15]
b. Effective Dealings
As noted previously, the Authority has held that the past collective bargaining experience of the parties is one factor to be considered in assessing whether a proposed unit will promote effective dealings. See FISC, 52 FLRA at 961. The RD determined that, after the reorganization, the Agency has conducted simultaneous negotiations on behalf of WSY and AOC employees, and there is no record evidence indicating that these dealings were unsuccessful. See RD's Decision at 10, 17-18. While not dispositive, this record evidence supports a conclusion that continued recognition of the unit would not impair effective dealings between the unit and the Agency.
Nevertheless, there is no record evidence as to whether the Agency and Union's continued negotiations have also been on behalf of the six COMNAVBASE employees at Yorktown, or whether those negotiations have been solely on behalf of AOC and WSY employees at that location. Additionally, while the RD found that three separate commanding officers have authority to set working conditions for the employees, and that two separate personnel offices provide personnel services to those employees, the RD did not make any findings regarding whether: (1) the commanding officer of COMNAVBASE exercises authority to set working conditions for WSY and AOC employees; (2) a representative of COMNAVBASE has ever negotiated on behalf of COMNAVBASE as a whole, including AOC and WSY; or (3) the personnel policies of the Satellite Office Yorktown differ, or could differ, from those of the Human Resources Office Norfolk. These factors are critical because, if the authority to set working conditions and establish personnel policies is split among several individuals or organizational components, then effective dealings could be impaired. [n16]
Because the record is incomplete on these matters, we are unable to determine whether the unit continues to promote effective dealings with the Agency. Accordingly, [ v56 p336 ] we remand this issue to the RD for further findings.
c. Efficiency of Agency Operations
The RD found that the commanding officers of WSY and AOC (and the respective directors of the Housing Department and the RRSO) all report directly to COMNAVBASE. However, the RD did not make any findings as to whether COMNAVBASE exercises authority to set labor relations for all of the unit employees. This factor is critical because, if COMNAVBASE does not exercise such authority, then recognition of the unit would result in a single unit bargaining with multiple individuals or components that have separate labor-relations authority. Such an arrangement would be more costly, and result in less productive labor-management relations, than would a unit that bears a more rational relationship to the structure of labor-relations authority within the Agency.
Because the record is incomplete on these matters, we are unable to determine whether the unit continues to promote the efficiency of Agency operations. Accordingly, we remand this issue to the RD for further findings.
3. The Transferred Employees Constitute a Majority of the Employees in the Unit.
A total of 323 employees were transferred to COMNAVBASE. The proposed unit consists of 420 employees (323 employees transferred from the original WSY, and 97 unrepresented employees from another entity). Assuming that the evaluation of the three appropriate unit criteria indicates that a separate unit is appropriate, the transferred employees constitute a majority of the employees in the proposed unit.
4. The RD Should Determine Whether the Second and Third Port Hueneme Criteria Have Been Satisfied.
We also remand to the RD to determine whether the second and third Port Hueneme requirements have been satisfied. With regard to the second requirement, the record does not indicate the mission(s) performed by COMNAVBASE. [n17] With regard to the third requirement, the RD should evaluate whether there is any evidence which indicates that an election would be necessary to determine the representation of these employees. [n18] Accordingly, in the event that the RD finds the existing unit appropriate on remand, we direct the RD to determine whether the second and third Port Hueneme requirements have been met.
We remand this matter to the RD for further findings as to whether the existing unit remains appropriate and whether the second and third Port Hueneme requirements are met.
Opinion of Chairman Wasserman, concurring in part and dissenting in part:
I agree with the determination that a change in command structure does not, in and of itself, render a bargaining unit inappropriate, but is a factor to be considered. For the reasons expressed by the majority, I also agree on the order in which the petitions should be analyzed. I dissent from the majority's assessment of the record as insufficient for purposes of making a decision regarding the parties' petitions.
As is the case in so many labor relations disputes, there are questions that remain unanswered by the presentation of the evidence. However, any remaining questions are insignificant in contrast to the great bulk of the evidence that we do have. I think the Authority errs when it demands a perfection of factual presentation, because the search for certainty will often be unavailing, and delay in adjudication can cause great harm to parties' rights. Indeed, our statute does not demand perfection. There is no requirement for the most appropriate bargaining unit. The requirement is merely for an appropriate bargaining unit. In my view, the record is adequate to find that, under Port Hueneme and FISC, the union's petition should be granted.
I. There is a community of interest among the COMNAVBASE, WSY and AOC employees
There is no doubt that the day-to-day working conditions of the employees remain unchanged. The [ v56 p337 ] employees remained where they were, doing the same things they had previously done. Supra at 16-17. The only change was in the organizational structure in which they were placed. The continuity of working conditions is further evidenced by the following:
1. Directives issued by the Commander of the WSY prior to the reorganization remained in effect after the reorganization, and remained applicable to all tenant activities. These directives concerned various working conditions, such as occupational health, smoking policy, and safety. (Un. Exhs. 11-13; Tr. 181.) While other tenants of the host WSY, such as AOC, can implement stricter applications of these directives, they cannot implement less restrictive applications. (Tr. 250-51.)
2. In this connection, the post-reorganization Commander of the WSY has facility-wide responsibility ("ultimate say") over "what's happening . . . basewide." (Tr.265-66.) This authority encompasses primarily facilities management matters and would include a variety of related working conditions.
3. The AOC commander has discretion to set certain working conditions within the parameters of the decision-making authority of the Commander of WSY. (Tr. 195.)
In addition, there is a significant amount of record evidence that employees are governed by the same personnel policies. Although the RD described the authority of the commanding officers of WSY and AOC over their respective organizations, Decision at 17, it is undisputed that COMNAVBASE is the central command to which WSY, AOC, RRSO, and the Housing Office all report. In our grant of review in this case, we said that "placement in the same immediate chain of command would appear to ensure that employees could `deal collectively' with management as a single group, thereby establishing a community of interest." COMNAVBASE, Norfolk, 55 FLRA at 518, quoting FISC 52 FLRA at 960. To underscore the uniformity that can be accomplished by being under the same ultimate command, COMNAVBASE, I note that the Satellite Personnel Office has presented almost identical sets of proposals to the Union, for bargaining on behalf of employees at both WSY and AOC. (Tr. 160-67; Un. Exh. 4; Ag. Exhs. 24, 25.)
The record reflects that the HRO Norfolk Director has "total responsibility" for labor relations at WSY, AOC, RRSO, and Housing. (Tr. 139-40.) Further, while the Satellite Office provides labor relations guidance to WSY and AOC without close oversight from HRO Norfolk, it seems fair to conclude that the latter sets the policy that is implemented at the Satellite Office. (Tr. 90-92.)
I do not find the existence of separate competitive areas for RIF purposes to undermine the community of interest among the employees in at issue. See American Federation of Government Employees, Local 2004 and Letterkenny Army Depot and Defense Logistics Agency, Defense Distribution Region East, 47 FLRA 969, 972 (1993) (factors which employees did not have in common, such as RIF competitive area, do not undermine the RD's determination that a community of interest exists). It is not uncommon for a bargaining unit to have separate competitive areas; nation-wide consolidated units must have separate competitive areas for RIF. Moreover, in this case, the area of consideration for most vacancies is all of the commands serviced by HRO Norfolk, Tr. 146, which includes WSY, AOC and COMNAVBASE.
Based upon the foregoing, I find ample evidence to support a determination that there is a community of interest among the transferred employees.
II. The unit proposed by the Union would promote effective dealings
As noted above by the majority, the RD found that after the reorganization, the Agency conducted simultaneous negotiations on behalf of WSY and AOC employees, which supports a determination that effective dealings continue within the new structure. However, the majority notes that the RD did not make any findings regarding whether: 1) the commanding officer of COMNAVBASE exercises the authority to set working conditions for WSY and AOC employees, 2) a representative of COMNAVBASE has ever negotiated on behalf of COMNAVBASE as a whole, including AOC and WSY; or 3) the personnel policies of the Satellite Office Yorktown differ, or could differ, from those of the HRO Norfolk. The lack of RD findings on these points is not problematic.
Certainly, it is clear that COMNAVBASE is the commanding office for both WSY and AOC, i.e., the commanding officers for the two both report to COMNAVBASE. (E.g., Tr. 105.) There is no evidence to place in doubt the presumption, under the typical operation of a chain in command, that COMNAVBASE has the authority to set working conditions for WSY and AOC employees. Even if COMNAVBASE has not [ v56 p338 ] exercised the authority to set working conditions and to bargain for all unit employees, it is neither impossible nor inappropriate for it to do so. Similarly, there is no reason to conclude that the Satellite Office of the Norfolk Regional HRO would operate independently with respect to policy, since the Satellite office is a branch of the HRO Norfolk.
Accordingly, the structure of the Union's proposed unit, as well as the simultaneous bargaining for WSY and AOC, reveal that effective dealings between the Agency and the Union will be supported by the broader unit.
III. The unit proposed by the Union would support efficiency of operations
We need not avoid making a determination on the basis of an unanswered question about whether the COMNAVBASE commanding officer has exercised his authority to bargain for all of the components sought to be combined by the Union's petition. The commanding officer of COMNAVBASE undoubtedly does have the authority to set policy and bargain for every component that reports to him, thereby guaranteeing the efficiency of the combined unit. Further, HRO Norfolk, on its own and through its Yorktown Satellite office, provides unified personnel and labor relations services for all unit employees. (Tr. 139-40.) The COMNAVBASE preference to avoid unified bargaining does not affect my assessment of the efficiency of operations that can be gained by avoiding the fragmentation that the Agency's petition would yield.
As a result, I believe that Union's proposed unit would support efficiency, and I conclude that the unit it seeks to establish is a separate appropriate unit.
IV. The requirements of Port Hueneme have been met to establish successorship
As noted above, Slip Op. at 21, the first factor of Port Hueneme has been met, in that the transferred employees constitute a majority of the employees in the proposed unit.
The second Port Hueneme factor requires that the claimed successor have substantially the same organizational mission as the losing entity and that transferred employees perform substantially the same duties and functions under substantially similar working conditions after the transfer. Port Hueneme, 50 FLRA at 372. The inquiry emphasizes the employees' perspective, i.e., whether the agency's operations, as they affect unit employees, remain essentially the same after the transfer. Id. However, the missions of the predecessor and the claimed successor need not be identical. Id. at 373. Even where the gaining entity has a broader or different mission from the losing entity, if the transferred employees continue to perform the same functions that they performed when they were employed by the losing entity, then the Authority has found the second Port Hueneme criterion satisfied. See Bremerton, 53 FLRA at 184-85 (1997).
Each of the organizational components at issue performs the same mission after the reorganization as it did before. While the various organizational units can be seen as performing three separate, specific missions in support of the broader mission of the base, the same point could be made about the original pre-reorganization WSY. The original WSY performed these same, distinct missions, and to the extent that separate missions render the proposed bargaining unit inappropriate, they would also have rendered the original WSY unit inappropriate. However, the Authority certified that unit as appropriate in 1985, and no one has suggested that this decision was incorrect. Accordingly, the overall mission performed by employees in the proposed unit has not changed. Rather, the employees have been divided up organizationally by function, and each function contributes to the ultimate mission of the Activity.
After their transfer, the employees perform substantially the same duties and functions under substantially the same working conditions: they report to the same first-line supervisors, they work at the same locations, and their other conditions of employment are otherwise unchanged. From the employees' perspective, the agency's operations remain essentially the same after the transfer. Such facts support a conclusion that the purported successor carries out substantially the same mission as the losing entity, thereby satisfying second factor of the Port Hueneme requirement.
As noted above, the transferred employees constitute a majority of the employees of the gaining entity. Additionally, no other labor organization represents, or seeks to represent, the transferred employees. As such, it has not been demonstrated that an election is necessary to determine representation, and the third Port Hueneme factor has been met here. See, e.g., Social Security Administration, District Office, Valdosta, Georgia and AFGE, AFL-CIO, 52 FLRA 1084 (1997).
Based upon the foregoing analysis, I find that the bargaining unit sought by the Union is an appropriate unit and that COMNAVBASE is the successor employer.
Footnote # 1 for 56 FLRA No. 47
Footnote # 2 for 56 FLRA No. 47
Footnote # 3 for 56 FLRA No. 47
Footnote # 4 for 56 FLRA No. 47
Under section 7112(a)(1) of the Federal Service Labor-Management Relations Statute (Statute), a bargaining unit is appropriate only if it will: (1) "ensure a clear and identifiable community of interest among the employees in the unit[;]" (2) "promote effective dealings with . . . the agency involved[;]" and (3) "promote . . . efficiency of the operations of the agency involved."
Footnote # 5 for 56 FLRA No. 47
The RD also determined that there were three gaining employers (the new WSY, AOC, and COMNAVBASE), and that, as a result, he could not compare the mission of the original WSY with the missions of those three employers. Accordingly, the RD found that he could not apply the second Port Hueneme factor, and he concluded that COMNAVBASE could not constitute the successor to the original WSY.
Footnote # 6 for 56 FLRA No. 47
Section 2422.31(c)(2) of the Authority's Regulations provides, in pertinent part, that "[t]he Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds: . . . Established law or policy warrants reconsideration[.]"
Footnote # 7 for 56 FLRA No. 47
The Union notes that the commanding officer of COMNAVBASE is now titled the Commander, Mid-Atlantic Region (CMAR). For the sake of consistency with the Authority's decision in COMNAVBASE Norfolk, and avoidance of confusion, we refer to the CMAR as the commanding officer of COMNAVBASE throughout this decision.
Footnote # 8 for 56 FLRA No. 47
In its amicus brief, AFGE asserts that the Authority should apply the alter ego doctrine that is applied in theprivate sector. AFGE Brief at 11-12. Under that doctrine, in order for an employer to constitute an alter ego of another employer, there must be "substantial identity of ownership and control" of their businesses, and one must be a "substantially identical entity" of the other. Hardin, The Developing Labor Law, 816-17 (3d Ed. 1992). These concepts are encompassed in the existing Port Hueneme doctrine, which considers whether "[t]he 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[.]" Port Hueneme, 50 FLRA at 368. Accordingly, we find it unnecessary to separately adopt the alter ego doctrine.
Footnote # 9 for 56 FLRA No. 47
We note that, under certain circumstances, a change in chain of command may affect the other factors that are considered in assessing unit appropriateness, and depending on the significance of those effects, may render an existing unit inappropriate.
Footnote # 10 for 56 FLRA No. 47
We note the Agency's claims that "virtually all bargaining units [in the Agency] are established along activity lines," and that "[t]he Department of the Navy has never advocated nor sought units established along geographical lines." Agency Brief at 12. The Authority, not agencies or unions, is charged with making appropriate unit determinations under the Statute. See 5 U.S.C. § 7112(a). Additionally, as noted above, more than one unit may be appropriate, and a proposed unit will not be found inappropriate merely because another unit might be more appropriate. See Bremerton, 53 FLRA at 183 n.9. As such, the Agency's practice of advocating only activity-based units does not compel a conclusion that the Union-proposed unit is inappropriate.
Footnote # 11 for 56 FLRA No. 47
As is noted in the dissent, the existence of separate competitive areas for RIF, like any other factor in evaluating community of interest, is not dispositive in resolving that issue. See Local 2004, 47 FLRA at 972.
Footnote # 12 for 56 FLRA No. 47
In finding that the community of interest criterion is satisfied, our dissenting colleague relies on the facts that the reorganization did not change employees' conditions of employment and that COMNAVBASE is the central command over each activity, as well as record evidence that would support a finding that the commander of WSY has the authority to set base-wide policies on a number of issues. However, the RD's findings with respect to the separate authority of the individual commanding officers was to the contrary. See RD Decision at 17. As there is also record evidence supporting the RD's conclusion that the commanding officers have independent authority over the working conditions and personnel policies of these employees, see, e.g., transcript at 195, 251, 266-69, we consider a remand for findings on this issue to be appropriate.
Footnote # 13 for 56 FLRA No. 47
In FISC, the Authority stated that "[a]lthough not expressly stated in Port Hueneme, a successorship finding can be made only if the employees at issue are included in a separate appropriate unit." 52 FLRA at 959.
Footnote # 14 for 56 FLRA No. 47
Our dissenting colleague cites our decision granting review in this case for the proposition that placement in the same immediate chain of command would appear likely to ensure that employees could deal collectively with management as a single unit. Dissent at 2 (quoting COMNAVBASE Norfolk, 55 FLRA at 518). While the proposition remains true, as a general matter, it does not establish that the employees in the Union's petitioned-for unit in this case can deal collectively with management as a single group. The record does not reflect how authority is exercised at COMNAVBASE and whether the management structure of that entity is conducive to collective bargaining with this unit. Further, as we specifically stated above, although changes in chain of command do not, by themselves, render units inappropriate, such changes could, in some circumstances, have effects on the other factors underlying the appropriate unit criteria, which might render inappropriate the existing unit.
Footnote # 15 for 56 FLRA No. 47
Footnote # 16 for 56 FLRA No. 47
Our dissenting colleague claims that there is no evidence to place in doubt the "presumption" that COMNAVBASE has the authority to set working conditions for WSY and AOC employees. Dissent at 3-4. However, without any information concerning the structure of, or reporting authority within, COMNAVBASE, we have no basis on which to make this determination. Further, the RD expressly found that the individual commanding officers have the authority to set working conditions for their respective employees. See RD Decision at 17; note 12, supra. Given this lack of information and this specific finding, we do not find a sufficient basis to make a determination of whether the proposed unit would promote effective dealings.
Footnote # 17 for 56 FLRA No. 47
The dissent would find the second Port Hueneme requirement met, on the ground that each of the organizational components supports the same mission after the reorganization as it did before. However, the RD's decision and the record do not provide any information as to whether the missions of these activities have been altered by their new relationship to COMNAVBASE. Moreover, as the petition must be remanded for other reasons, we conclude that a remand on this issue also is appropriate.
Footnote # 18 for 56 FLRA No. 47
We note that, since the Authority granted the application for review, 16 petitions have been filed that attempt to divide certain of the Agency's employees -- including some of the employees involved here -- along functional lines. A hearing on those petitions has been scheduled for May 23, 2000. We direct the RD to take those petitions into account on remand and determine whether, and how, the facts presented by those petitions affect the appropriateness of the petitioned-for unit in this case.