File 2: Opinion of Chairman Cabaniss
[ v60 p396 ]
Opinion of Chairman Cabaniss, concurring in part and dissenting in part:
I agree that there is a need to grant the application for review (AFR) in this case. However, I write separately to explain why I would not resolve this matter on an issue the AFR does not raise. Instead, and consistent with the issues raised in the AFR, I would grant the AFR and order an election.
I am concerned that the majority has, without explanation or justification, decided to process this case based upon an issue not raised in the AFR. The AFR rightfully points out our precedent which requires that there be an election in accretion situations when neither of the competing bargaining units is "sufficiently predominant" (which is defined by our precedent as comprising 70% or more of the new bargaining unit). Clearly, the AFR asserts that there is a genuine issue over whether the Regional Director deciding this case failed to apply established law, although I see more than a genuine issue, I see the conclusion that there was a failure to apply our sufficiently predominant precedent. However, the AFR never raises as a concern the fact that there are two bargaining units of the same national union involved in this case, and I am concerned that the majority has no basis for addressing that issue other than its own unsubstantiated desire to do so.
I raise this concern because there is nothing new or unusual in our precedent from different bargaining units of the same national union disputing what took place in a representation case. In United States Army Missile Command; United States Army Test, Measurement and Diagnostic Equipment Support Group, Redstone Arsenal, Ala., 17 FLRA 183 (1985) (Army Missile Command), the Authority exercised jurisdiction over questions arising out of the movement of employees from one bargaining unit to two other bargaining units, all three bargaining units being part of the same American Federation of Government Employees local. The Authority upheld the accretion of the employees from the first unit to the other two units, thereby rejecting the first unit's attempts to retain its identity.
In Florida National Guard, St. Augustine, Fla., 25 FLRA 728 (1987) (Florida National Guard), the Authority exercised jurisdiction over a dispute between two locals of the National Association of Government Employees. One of the locals alleged that the Montrose ruling (Veterans Admin. Hospital, Montrose, N.Y., 4 ASLMR 858 (1974), review denied, 3 FLRC 259 (1975)) did not apply to a merger of two local unions of the same national union. The Authority dismissed this claim, finding that the requirements of Montrose were [ v60 p397 ] equally applicable to where the two competing unions were part of the same national union.
In Naval Aviation Depot, Naval Air Station, Alameda, Cal., 47 FLRA 242 (1993) (Naval Aviation Depot), the Authority again applied the requirements of Montrose to the merger of two bargaining units of the International Association of Machinists and Aerospace Workers, and denied the application for review, which had challenged the legitimacy of the Florida National Guard decision and its application of Montrose to a situation involving two bargaining units of the same national union.
In National Association of Government Employees/ Service Employees International Union, Local 5000, AFL-CIO-CLC, 52 FLRA 1068 (1997) (NAGE), the Authority examined a dispute involving the desired transfer of 900 employees from one bargaining unit to another bargaining unit of the same national union. While both bargaining units agreed to this change, the relevant regional director dismissed the petition because the parties had failed to prove that severance was justified under Authority precedent. After initially granting the Unions' application for review, 51 FLRA 969 (1996)), the Authority dismissed the petition, finding no basis for permitting the action.
I conclude from the above cases, and from the fact that the Authority has never raised any concern about cases involving different bargaining units of the same national union, that there is nothing novel or new from the circumstances of the case here, and see no reason for not applying our sufficiently predominant precedent to this case. Thus, I see no basis for now attempting to draw a distinction based on that fact (indeed, the Florida National Guard decision expressly rejected that attempted distinction), especially in the context of an accretion situation (the circumstances at issue in the Army Missile Command case). In reviewing the relevancy of the 41 FLRA 562 decision (which predates many of the decisions noted, supra) discussed in the majority opinion, I note that there the Authority was examining the meaning of the term "secret ballot" in a Montrose situation, and in determining the appropriateness of the level of secrecy at issue, found that an assurance of absolute secrecy to not be required because the Authority has "no statutory mandate to conduct or assure the validity of elections concerning a union's internal structure or affiliations." 41 FLRA at 586. The emphasis of that comment is on the secrecy of elections, not the Authority's ability to conduct an election about which bargaining unit should become an exclusive representative in an accretion situation. And, taken to its logical conclusion, the majority's reliance on this case for the point asserted would seem to be at odds with our involvement with any aspect of a Montrose case since such cases by their nature involve "a union's internal structure or affiliations" question.
Consequently, based upon the case discussions noted above, and in addition to the fact that the issue in question was not raised in the AFR, I conclude that there is no basis for attempting to parse our precedent based upon the fact that there are two bargaining units from the same national union involved. I also conclude that the moving party did not fail to cite any "authority for finding that this situation raises a question of representation, for which an election is required under the Statute." Majority opinion at 13. To the contrary, the moving party did just that, it cited the Authority's sufficiently predominant precedent.
Therefore, consistent with the sufficiently predominant precedent, I would find that it was error to not order an election in this case to determine which of the two bar