United States Department of the Navy, Naval Air Warfare Command, Aircraft Division, Patuxent River, Maryland (Agency) and United States Department of the Navy, Naval Air Systems Command Headquarters, Patuxent River, Maryland (Agency) and American Federation of Government Employees, Local 1603, AFL-CIO (Union/Petitioner)
[ v56 p1005 ]
56 FLRA No. 174
UNITED STATES DEPARTMENT OF THE NAVY
NAVAL AIR WARFARE COMMAND
PATUXENT RIVER, MARYLAND
UNITED STATES DEPARTMENT OF
THE NAVY, NAVAL AIR SYSTEMS
PATUXENT RIVER, MARYLAND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1603, AFL-CIO
December 22, 2000
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1]
I. Statement of the Case
This case is before the Authority on an application for review filed by the Union under § 2422.31 of the Authority's Regulations, seeking review of the Regional Director's (RD's) decision denying the Union's petition to accrete certain employees into an existing bargaining unit. The Agency filed an opposition to the Union's application.
The RD found that accretion principles were not applicable and that, even if they were, the proposed unit was not appropriate under § 7112(a) of the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7112(a). For the reasons set forth below, we find that the RD failed to apply established law in concluding that accretion principles were not applicable, but that he did not fail to apply established law in concluding that the petitioned-for unit is not appropriate under § 7112(a) of the Statute. Accordingly, we grant in part, and deny in part, the Union's application for review, and dismiss the petition.
II. Background and RD's Decision
In 1997, Naval Air Systems Command, Headquarters (NAVAIRHQ) was relocated from Virginia to the Patuxent River Naval Air Station (Patuxent), Maryland. One of NAVAIRHQ's eight subordinate activities, the Naval Air Warfare Command, Aircraft Division (NAWCAD), is headquartered at Patuxent. The Union filed a petition to clarify its existing bargaining unit of 1700 NAWCAD employees to include the 850 relocated NAVAIRHQ employees, asserting that as a result of the relocation, these employees were accreted into its existing bargaining unit.
As an initial matter, the RD found that accretion principles did not apply. Quoting NAGE, SEIU, Local 5000, 52 FLRA 1068 (1997) (NAGE), the RD stated that accretion principles apply only where there has been a "`triggering change in agency operations.'" Decision at 14. The RD concluded that the relocation of NAVAIRHQ employees did not constitute such a triggering change in this case.
The RD also concluded, in the alternative, that if accretion principles applied, then the NAVAIRHQ employees had not accreted into the existing unit because a combined unit of NAWCAD and NAVAIRHQ employees would not constitute an appropriate unit, within the meaning of § 7112 of the Statute. [n2]
In assessing the three appropriate unit criteria set forth in § 7112, the RD first found that the petitioned-for unit would not ensure a clear and identifiable community of interest. The RD relied, in this regard, on his findings that NAWCAD and NAVAIRHQ: (1) have separate missions, (2) are funded differently, and (3) maintain separate personnel policies in areas such as discipline, grievance procedures and leave administration. According to the RD, NAWCAD and NAVAIRHQ employees perform work in different and distinct categories, i.e., policy and program management, as compared to technical services. The RD also found that NAVAIRHQ employees had "not been so functionally and organizationally integrated with the NAWCAD . . . employees in the existing consolidated unit represented by [the Union] so that they have lost their separate identity." Id. at 19-20. In particular, the RD found that the relocation had little impact on the working conditions of employees because they continue [ v56 p1006 ] to perform the same distinct duties, while working for different activities with separate authorities and missions. Among other things, the RD determined that the fact that some NAWCAD and NAVAIRHQ employees work together on Integrated Program Teams (IPTs) did not establish that the employees had been sufficiently integrated, because any blending of operations as a result of IPTs was present prior to the reorganization.
In addition, the RD concluded that the proposed unit would not promote effective dealings with the Agency and/or efficiency of Agency operations, under § 7112 of the Statute. With respect to the former, the RD found that each activity "remains a self-contained and distinct group with its own administrative and managerial authority." Id. at 20. With respect to the latter, the RD found that NAWCAD and NAVAIRHQ have "two quite distinct missions" and their employees are "function[ally] and organizational[ly] separat[ed]." Id. at 21.
III. Positions of the Parties
A. Union's Application for Review
The Union asserts that the RD erred in concluding that accretion principles do not apply here. According to the Union, the record supports a finding that there were numerous changes as a result of the relocation of NAVAIRHQ employees.
The Union also asserts that the RD erred in concluding that the NAVAIRHQ and NAWCAD employees do not share a community of interest. According to the Union, a community of interest exists because the employees share a chain of command and facilities; are supported by the same human resources office; are subject to similar personnel practices; are in the same competitive areas for promotions and RIFS; and share a common mission and similar funding. In addition, the Union asserts that the RD erred in finding that the relocated employees were not integrated into the existing bargaining unit, because he "minimized the interaction" between the affected employees and did not accord the appropriate significance to the facts that: (1) they work together on teams, and (2) there have been permanent transfers between the activities. Application at 12-13.
Further, the Union asserts that the RD erred in concluding that the proposed unit would not promote effective dealings. In this regard, the Union claims that its representation of affected employees has been effective. Finally, the Union asserts that the RD erred in concluding that the proposed unit would not enhance the efficiency of Agency operations. According to the Union, that conclusion is not consistent with the record.
B. Agency's Opposition
The Agency asserts that the RD properly found that there was no change in Agency operations warranting the application of accretion principles, and that this finding was consistent with Authority precedent. The Agency also asserts that the RD properly found that a combined unit of NAWCAD and NAVAIRHQ employees would not be appropriate under § 7112 of the Statute. Among other things, the Agency contends that NAWCAD and NAVAIRHQ employees are not sufficiently integrated.
IV. Analysis and Conclusions
A. The RD Failed to Apply Established Law In Concluding that Accretion Principles Do Not Apply
Accretion involves the addition of a group of employees to an existing bargaining unit without an election based on a change in agency operations or organization. See United States Dep't of the Navy, Fleet and Industrial Supply Center, Norfolk, Va., 52 FLRA 950, 963 (1997) (FISC). Because accretion precludes employee self-determination, the accretion doctrine is narrowly applied. DLA, Defense Supply Center Columbus, Columbus, Ohio, 53 FLRA 1114, 1125 (1998) (Defense Supply) (citing Local 144, Hotel, Hospital, Nursing Home & Allied Services Union, SEIU v. NLRB, 9 F.3d 218, 223 (2d. Cir. 1993)).
In NAGE, 52 FLRA at 1079-80, the Authority found that accretion principles did not apply where the only change alleged to have occurred was an agreement between two unions who represented the employees at issue. Relying on NAGE, the RD found that accretion principles did not apply in this case. We conclude that, in so doing, the RD misapplied NAGE.
In this regard, NAGE holds only that accretion does not apply where there is no change in an agency's organization or operations affecting the appropriate unit criteria concerning an existing unit. However, one of the long-identified factors considered in assessing whether employees share a community of interest is the employees' "geographic proximity." FISC, 52 FLRA at 961. Here, when the Agency relocated the NAVAIRHQ employees at the same location as the NAWCAD employees, it made a change in its operation that affected the geographic proximity of the two groups of employees. Further, the RD made factual findings that, following the relocation, NAWCAD and NAVAIRHQ employees now share the same facilities, personnel services, and competitive areas for RIFs and promotions. See Decision at 18. [ v56 p1007 ]
Based on the foregoing, we find that the RD failed to apply established law in concluding that accretion principles did not apply in this case. Accordingly, we grant the application for review on this ground.
B. The RD Did Not Fail to Apply Established Law in Dismissing the Petition
The Authority has consistently held that, in deciding questions of accretion, it is bound by the three criteria for determining the appropriateness of a unit set forth in § 7112(a) of the Statute. See FISC, 52 FLRA at 963.
In considering the first criterion -- community of interest -- the Authority examines factors such as the agency's mission, organizational and geographic structure, chains of command, working conditions, conditions of employment, and personnel and labor relations policies. See United States Dep't of the Air Force, Air Force Material Command, Wright-Patterson Air Force Base, 47 FLRA 602 (1993); Defense Mapping Agency, Aerospace Center, St. Louis, Mo., 46 FLRA 502 (1992). In accretion cases, the Authority also examines whether employees have been organizationally and operationally integrated. [n3] See FISC, 52 FLRA at 963; United States DOD, Dependents Schools, 48 FLRA 1076, 1085 (1993) (DOD); DLA, Defense Contract Admin. Services Region Cleveland, Defense Contract Admin. Services Plant Representative Office, Goodyear Aerospace, Akron, Ohio, 15 FLRA 962, 965 (1984) (DLA). Determining whether employees are sufficiently integrated is based on, among other things, the degree of interchange between employees, the similarities in positions and duties, and the commonality of administrative and organizational functions, missions and chains of command. See FISC, 52 FLRA at 964-66; DOD, 48 FLRA at 1086-89; Naval Air Station, Meridian, Miss., 9 FLRA 22, 23 (1982) (Naval Air Station); Dep't of the Navy, Naval Civilian Personnel Command, Pacific Field Div., 8 FLRA 643, 646 (1982) (Naval Civilian Personnel). Finding accretion only where employees have been sufficiently integrated is consistent with the principle that the accretion doctrine is narrowly applied. See Defense Supply, 53 FLRA at 1125.
We conclude that the Union has failed to establish that review is warranted of the RD's conclusion that the NAVAIRHQ employees were not sufficiently integrated into the NAWCAD unit. In particular, the Union has not demonstrated that the RD improperly minimized the interaction between NAWCAD and NAVAIRHQ employees. In this regard, the RD specifically considered the degree of interaction and found that it was not sufficient to overcome the differences between the two groups of employees. Among other things, the RD acknowledged that there had been some blending of operations as a result of IPTs, but he also found that the relocation had little impact on the working conditions of these employees. The RD also found that most of NAVAIRHQ employees have significantly different duties than NAWCAD employees, and are working in different environments in support of different missions.
In determining whether employees are sufficiently integrated, the degree to which employees and their duties are distinguishable or interchangeable is relevant. See, e.g., Dep't of Health and Human Serv., Region II, New York, N.Y., 43 FLRA 1245, 1254 (1992); Dep't of the Navy, Naval Hospital, Submarine Base Bangor Clinic, Bremerton, Wash., 15 FLRA 125, 127-28 (1984); Naval Civilian Personnel, 8 FLRA at 646. Here, as found by the RD, NAWCAD and NAVAIRHQ employees retain their separate identities and perform distinct duties while working on teams. In addition, the RD found that NAWCAD and NAVAIRHQ maintain separate personnel policies in areas such as discipline, grievance procedures, leave administration, and awards. In view of these findings, the facts that the employees share the same facilities, human resources office, and competitive areas for RIFs and promotions is not enough to establish that employees have been sufficiently integrated. See DOD, 48 FLRA at 1086-89; Naval Air Station, 9 FLRA at 23; United States Dep't of Housing and Urban Development, 8 FLRA 176, 182 (1982).
The Union argues that NAVAIRHQ and NAWCAD employees are sufficiently integrated because there have been transfers between the two activities. However, the RD found that those transfers did not occur as a result of the relocation, but rather over a period of time after the relocation. The Union has not provided any evidence that the RD's finding is incorrect. The Union also argues that there is sufficient integration because NAVAIRHQ and NAWCAD share a common chain of command. A finding that employees share a common chain of command is relevant in determining whether employees are sufficiently integrated. See FISC, 52 FLRA at 964. In this case, however, we [ v56 p1008 ] conclude that it is not dispositive in view of the RD's findings regarding the differences between employees and the degree to which they are separated.
Based on the foregoing, we conclude that the Union has failed to establish that review is warranted of the RD's finding that NAVAIRHQ and NAWCAD employees are not sufficiently integrated so as to share a community of interest for the purposes of accretion. Accordingly, without addressing the RD's additional findings under § 7112(a) of the Statute, we deny the Union's application for review on this ground.
Based on the foregoing, we grant in part, and deny in part, the Union's application for review. The petition is dismissed.
Concurring opinion of Chairman Wasserman:
The propriety of finding an accretion of a new segment of a bargaining unit, like so many other labor-relations concepts, depends upon the totality of the circumstances. In this case, I agree that the weight of the evidence tips against a determination that an accretion has occurred. As noted by my colleagues, accretion is narrowly applied, because it involves placing employees under the umbrella of a labor organization without the benefit of a self-determination election. I would find an election to be a more appropriate vehicle for determining whether the 850 relocated NAVAIRHQ employees should be placed in their own unit or into the existing unit of NAWCAD employees, or remain unrepresented.
The RD relied quite heavily on the concept of functional and organizational integration to the extent that the accreted employees were required to have "lost their separate identity." Decision at 19-20. I do not view our precedent to require that accreted employees completely lose their separate identity. Indeed, there appear to be only two cases in which the Authority has used that phrase. See DOD, Dependents Schools, 48 FLRA 1076, 1085 (1993) and DLA, 15 FLRA 962, 965 (1984). Most accretion cases simply refer to the general standards of section 7112(a), and to a lesser extent, but frequently, to functional and organizational integration. See cases cited supra at 6.
In looking at the degree to which employees must be integrated so as to be accreted, I would not require employees to be "indistinguishable" or "interchangeable" as our precedent might suggest. See DHHS, 43 FLRA at 1254 and Navy, Submarine Base, 15 FLRA at 127. To impose such a requirement in looking at the community of interest in an accretion case would mean that we apply the same statutory requirement of section 7112(a) in very different ways in slightly different contexts. Instead, the statutory requirement of community of interest is the same in all unit determinations, with integration being a part of the assessment in each case. Depending upon other community of interest factors, e.g., mission, working conditions and personnel policies, the degree of integration becomes more or less important. For example, integration may be less of a factor in consolidation cases.
A unit may be an appropriate one under the Statute, but accretion may nevertheless prove to be an improper vehicle for certification of that unit in light of any number of possible factors arising in connection with any of the criteria of section 7112(a). For example, if the accreted number of employees were 50 instead of 850, I might be more inclined to find an accretion given our policy to avoid fragmentation and the factors that support finding one bargaining unit here, e.g., same competitive area for RIF, same personnel office and co-location. Similarly, if these 850 employees were already represented by the same labor organization, I might find accretion. In other words, there are cases, as here, where I would apply accretion principles and look at the unit requirements of section 7112(a), but still find that accretion is not warranted because of the totality of the circumstances. In approaching accretion in this manner, I am cognizant that unions seeking accretion do not have to prove the most appropriate unit. However, the Authority is charged with the responsibility of weighing the statutory standards in section 7112(a) and determining the relative importance of the mix of facts that each case presents.
In this case, the relative number of affected employees -850 from NAVAIRHQ and 1700 from NAWCAD - combined with some of the differences in personnel policies affecting the two groups, are significant points in my mind. Accordingly, based upon the circumstances presented by this case, I agree that the NAVAIRHQ employees were not accreted into the AFGE unit. This determination does not mean that the requested unit is not an appropriate unit under any circumstance, or that a petition for an add-on election would be inappropriate. In accretion cases of this sort, I w