File 2: Opinion of Member Wasserman

[ v57 p237 ]


Dissenting Opinion of Member Wasserman.

      I respectfully dissent from my colleagues' holding that the Acting Regional Director correctly found the proposed unit in this case is not an appropriate unit. In support of its decision, the majority appears to rely on a single point: the lack of authority of the supervisor at BCO-Mechanicsburg to negotiate or change working conditions requires a finding that the proposed unit would not allow for effective dealings between the Union and the Activity. I believe this is inconsistent with our case law on this issue. I conclude that the record shows that effective dealings would be compatible with a finding that this unit is appropriate. Moreover, contrary to the Acting Regional Director, I would find the remaining appropriate unit criteria to be met, and that the Activity is a successor employer under the factors set out in Naval Facilities Engineering Svc. Ctr., Port Hueneme, Calif., 50 FLRA 363 (1995) (Port Hueneme).

      I also note at the outset that the majority's decision effectively removes the protections afforded by collective bargaining rights from a group of employees who have previously enjoyed them over a long period of years. Workers should not lose the Statute's protection as a result of what is largely a "paper reorganization." [n1]  Inconvenience to the Agency should not be confused with effective dealings. Otherwise, the result is both bad law and bad policy.

I.     Effective Dealings

      This criterion forms the basis for the majority's holding; I therefore address it first. One factor in determining whether a proposed unit would permit effective dealings is the limitations, if any, on the negotiation of matters of critical concern to employees in the proposed unit. United States Dep't of the Navy, Fleet and Industrial Supply Ctr., Norfolk, Va., 52 FLRA 950, 961 (1997) (FISC). This is the factor that the majority relies on in reaching its conclusion on effective dealings. As indicated above, the majority finds that the Acting Regional Director properly relied on the supposed lack of authority of the first-line supervisor over day-to-day working conditions and inability to negotiate as the reason for finding this factor not to have been satisfied.

      We agree that case law finds that the authority to negotiate conditions of employment by an on-site supervisor supports a determination of effective dealings. However, the Authority has never said that it is indispensable to such a determination. Rather, it is but one of several factors that must be considered -- and not necessarily the dispositive factor.

      Authority precedent has found that it is critical that some on-site management official or supervisor have the ability to deal with the day-to-day operations of the activity. Such dealings include taking actions that affect work assignments, leave approval, taking or recommending discipline, and other working conditions. See, e.g., Dep't of the Navy, Naval Supply Ctr., Puget Sound, Bremerton, Wash., 53 FLRA 173 (1997) (Bremerton) (effective dealings found even though on-site supervisor only had authority "over day-to-day operations," not to negotiate an agreement on behalf of management) [n2] ; United States Dep't of Justice, Executive Ofc. for Immigration Review, Office of the Chief Immigration Judge, Chicago, Ill., 48 FLRA 620, 636 (1993) (same). The on-site official must have the scope of responsibilities over day-to-day operations that would enable him or her to receive a delegation of bargaining authority, should management so choose. The specific process of how management elects to actually delegate such bargaining authority is not critical to determine effective dealings. To find otherwise would permit management to effectively dictate the level of exclusive representation. Where would the line be drawn? An extreme if unintended extension of this reasoning would be that in a given situation, if management decided that only national level officials will be empowered to bargain on behalf of management, only a national level unit would be appropriate. Hopefully, we would all agree that there is not statutory support for such an outcome.

      Unlike the majority, I believe the Acting Regional Director's holding is inconsistent with our case law. I base this on his own findings. The supervisor at BCO-Mechanicsburg does have authority over "[t]he day to day work issues or concerns [of employees]." Acting Regional Director's Decision on Remand at 9. Thus, the supervisor at BCO-Mechanicsburg has the kind of authority over day-to-day operations that our case law addresses. Further, the record reflects that the first level supervisor recommends taking lesser forms of discipline, assigns work (Tr. 393), approves annual leave and sick leave, and writes the performance appraisals for the employees (Tr. 792, 811, 820). Irrespective of the Acting [ v57 p238 ] Regional Director's holding, these duties point out that he does in fact "implement" personnel policies and working conditions for the employees. First-line supervisors typically do not have the authority to "determine" or "change" policies or working conditions. The supervisor here operates within the overall scope of personnel and labor relations policies as set at NCTAMS-LANT headquarters. This has not prevented us from finding effective dealings in other cases, such as Bremerton. The record in this case is therefore sufficient to warrant a finding that effective dealings would not be hampered by the presence of this supervisor. [n3] 

II.     Community of Interest and Efficiency of Operations

      I also disagree with the Acting Regional Director's holdings as to the remaining two statutory appropriate unit criteria. As to community of interest, I believe he errs in focusing on whether the employees at BCO-Mechanicsburg have a community of interest "separate and distinct from the other NCTAMS-LANT employees." Acting Regional Director's Decision at 15. As there is no other unit proposed or in existence in the gaining entity, I am not sure what group of employees the Acting Regional Director believes the affected employees should be distinguished from in order to have a distinct community of interest. [n4] 

      When a discrete examination of the four employees standing on their own is considered, it is clear that they do share a community of interest. All four employees are subject to the same chain of command: since the reorganization they all are subject to the same first-line supervision in BCO-Mechanicsburg as well as the same second and third-level supervision within the Activity. Furthermore, they have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same personnel office. Beyond these similarities, they are all located in the same office, and share the same conditions of employment. They have little actual physical contact with headquarters employees, and there is little or no interchange between other organizational components. They do have extensive contact with other employees of NAVICP-Mechanicsburg, but this is in a service, rather than co-worker capacity. The employees of BCO-Mechanicsburg have not lost their identity as a distinct work group, and are in the same location as before the reorganization, and continue to be identifiable as to function and operation. In fact, the employees who transferred came from different locations within the former NAVICP-Mechanicsburg, and are now in a single, identifiable office. These facts should dictate a community of interest finding.

      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." United States Dep't of the Interior, National Park Serv. Washington, D.C., 55 FLRA 311, 315 (1999). The Authority has noted that a unit that bears such a rational relationship "could result in economic savings and increased productivity to the agency." Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Arizona, 53 FLRA 1200, 1218 (1998). Consequently, factors to be examined include the effect of the proposed unit on agency operations in terms of cost, productivity and use of resources. FISC, 52 FLRA at 961-62.

      The BCO-Mechanicsburg unit accords precisely with the organizational structure of the agency. Specifically, it corresponds to an existing component of the agency, and does not leave other similar employees outside the unit at BCO-Mechanicsburg.

      The Acting Regional Director further stated that the Activity would incur extra expense in negotiating and administering a collective bargaining agreement for the BCO-Mechanicsburg unit. He gave this as a reason for finding that the proposed unit would not promote efficiency of operations However, the negotiation and administration of every collective bargaining agreement necessarily involves some expense. Surely Congress was aware of this when it wrote, in § 7101(a) of the Statute, that "labor organizations and collective bargaining [ v57 p239 ] in the civil service are in the public interest." The Activity made no showing that undue cost of administering the agreement would occur from finding BCO-Mechanicsburg an appropriate unit. In addition, there were no findings that a separate unit would adversely affect the Activity's productivity or resource allocation. Moreover, cost considerations must be put in perspective of the statutory mandate of making appropriate unit determinations on the basis of an appropriate unit, not the most appropriate unit. If cost were the most important concern, then the statutory mandate would have been for the Authority to find the most appropriate unit. Cost considerations must also be considered in light of Congress' intent, expressed in § 7112(a), that the Authority make unit determinations so as to "ensure employees the fullest freedom in exercising the rights guaranteed" by the Statute. For these reasons, I find that the BCO-Mechanicsburg unit would promote efficiency of operations. See Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Ohio, 53 FLRA 1114 (1998).

III.     Port Hueneme Successor Employer Factors

      Under the standards of FISC and Port Hueneme, if, as here, the transferred employees are included in and constitute a majority of a separate appropriate unit in the gaining organization, the Authority will apply the remaining successorship factors in Port Hueneme. The Authority will examine whether the gaining organization 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 after the transfer; and whether an election is necessary to determine the representation rights of the transferred employees. Port Hueneme, 50 FLRA at 368. If all of the factors set forth in Port Hueneme have been met, we will find that successorship exists and, as a result, that the gaining organization must recognize without a secret ballot election the exclusive representative of the transferred employees prior to their transfer. An appropriate certification will be issued. FISC, 52 FLRA at 962.

      Applying the facts here to that framework, clearly the Activity is a successor employer. First, the transferred employees are included in and constitute a majority of the gaining entity. A main part of the mission of NAVICP-Mechanicsburg includes providing base support services. Since the transfer, duties of the new BCO-Mechanicsburg unit have expanded somewhat, including now using a Base Communications Manual, but in general primarily involve "streamlining operations, standardizing procedures, updating technology, and utilizing computers to maintain records." Regional Director's (Initial) Decision and Order at 8-9. However, the employees still perform telephone maintenance, maintain supply inventories, serve as liaisons between NAVICP-Mechanicsburg activities and telephone service vendors, and receive and disseminate telephone bills. The transferred employees perform substantially the same duties and functions under substantially similar working conditions. Finally, since the affected employees comprise the entire unit sought, an election is not necessary. Based on the foregoin