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 th