United States, Department of the Navy, Naval District Washington (Activity) and International Association of Firefighters, Local F-121, AFL-CIO (Petitioner/Labor Organization) and International Association of Firefighters, Local F-284, AFL-CIO (Petitioner/Labor Organization) and International Association of Firefighters, Local F-254, AFL-CIO ( Petitioner/Labor Organization) and Fraternal Order of Police, Naval District Washington, Labor Committee (Petitioner/Labor Organization) and American Federation of Government Employees, AFL-CIO (Petitioner/Labor Organization) and American Federation of Government Employees, Local 361, AFL-CIO (Labor Organization/Interested Party) and American Federation of Government Employees, Local 896, AFL-CIO (Labor Organization/Interested Party) and American Federation of Government Employees, Local 1603, AFL-CIO (Labor Organization/Interested Party) and American Federation of Government Employees, Local 1923, AFL-CIO (Labor Organization/Interested Party) and American Federation of Government Employees, Local 2096, AFL-CIO (Labor Organization/Interested Party) and Fraternal Order of Police, D.C. Lodge 1, Washington Navy Yard Labor Committee (Labor Organization/Interested Party) and Fraternal Order of Police, Maryland Lodge 6-F (Labor Organization/Interested Party) and Hotel and Restaurant Workers Union, Local 25, Food and Beverage Workers Union, Local 32, AFL-CIO (Labor Organization/Interested Party) and International Association of Firefighters, AFL-CIO (Labor Organization/Interested Party) and International Association of Machinists and Aerospace Workers, Local Lodge 174, AFL-CIO (Labor Organization/Interested Party) and National Federation of Federal Employees, Local 1461 (Labor Organization/Interested Party) and National Federation of Federal Employees, Local 2101 (Labor Organization/Interested Party) and Washington Area Metal Trades Council, AFL-CIO (Labor Organization/Interested Party)

[ v60 p469 ]

60 FLRA No. 93

UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL DISTRICT WASHINGTON
(Activity)

and

INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS
LOCAL F-121, AFL-CIO
(Petitioner/Labor Organization)

and

INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS
LOCAL F-284, AFL-CIO
(Petitioner/Labor Organization)

and

INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS
LOCAL F-254, AFL-CIO
Petitioner/Labor Organization)

and

FRATERNAL ORDER OF POLICE
NAVAL DISTRICT WASHINGTON
LABOR COMMITTEE
(Petitioner/Labor Organization)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO
(Petitioner/Labor Organization)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 361, AFL-CIO
(Labor Organization/Interested Party

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 896, AFL-CIO
(Labor Organization/Interested Party)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1603, AFL-CIO
(Labor Organization/Interested Party)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1923, AFL-CIO
(Labor Organization/Interested Party)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2096, AFL-CIO
(Labor Organization/Interested Party)

and

FRATERNAL ORDER OF POLICE
D.C. LODGE 1
WASHINGTON NAVY YARD LABOR COMMITTEE
(Labor Organization/Interested Party)

and

FRATERNAL ORDER OF POLICE
MARYLAND LODGE 6-F
(Labor Organization/Interested Party)

and

HOTEL AND RESTAURANT WORKERS UNION
LOCAL 25, FOOD AND BEVERAGE
WORKERS UNION, LOCAL 32, AFL-CIO
(Labor Organization/Interested Party)

and

INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS, AFL-CIO
(Labor Organization/Interested Party)

and

INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS
LOCAL LODGE 174, AFL-CIO
(Labor Organization/Interested Party)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1461
(Labor Organization/Interested Party)

and [ v60 p470 ]

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 2101
(Labor Organization/Interested Party)

and

WASHINGTON AREA METAL TRADES
COUNCIL, AFL-CIO
(Labor Organization/Interested Party)

WA-RP-04-0024
WA-RP-04-0025
WA-RP-04-0026
WA-RP-04-0036
WA-RP-04-0065

_____

DECISION AND ORDER
GRANTING, IN PART
AND DENYING, IN PART
APPLICATION FOR REVIEW

December 7, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This case is before the Authority on an application for review filed by the American Federation of Government Employees (AFGE) of the Regional Director's (RD's) Decision and Order Directing Election. Oppositions were filed by the Department of the Navy (Agency) and the International Association of Fire Fighters (IAFF).

      Following an agency reorganization, the RD found four proposed bargaining units appropriate for exclusive recognition under the Federal Service Labor-Management Relations Statute (Statute). He directed elections in three of those units: 1) firefighters; 2) police officers and guards; and 3) all other nonprofessional general schedule and wage grade employees. The RD did not direct an election in the fourth unit he found appropriate, which consists of all the named employees. The application for review contends that the RD failed to apply established law in finding functional units appropriate and not directing an election in the fourth unit.

      For the reasons discussed below, we grant the application, in part, and deny the application, in part.

II.      Background and RD's Decision

A.      Background and Description of Petitions

      On October 1, 2003, the Department of the Navy (Navy) created a new organization, entitled "Commander, Navy Installations" (CNI), which is comprised of 16 Regional Commands. The CNI consolidated almost all employees performing operational support functions at every naval installation. The five petitions filed in this case pertain to the transfer of employees to the Naval District Washington (NDW), one of the 16 Regional Commands.

      As of the date of the RD's decision, about 1,425 employees were transferred to NDW, in the following categories: (1) 259 firefighters; (2) 328 police officers and security guards; and (3) 838 other, nonprofessional employees. All employees are represented by various labor organizations, with the exception of 265 employees in the "other, nonprofessional" category.

      For convenience, the petitions are grouped, and described briefly, as follows:

  • The petition in Case No. WA-RP-04-0024 was filed by IAFF, Local F-121, which represents all firefighters at the Naval Surface Warfare Center, Indian Head, Maryland.
     
  • The petition in Case No. WA-RP-04-0025 was filed by the IAFF, which represents all firefighters at the Naval Surface Warfare Center, Carderock, Maryland.
     
  • The petition in Case No. WA-RP-04-0026 was filed by IAFF, Local F-254, which represents employees at the Naval Academy Fire Department in Annapolis, Maryland.
     

          In each of these petitions, the individual unions sought to "clarify and amend the three existing bargaining units to reflect that, based on the October 2003 reorganization, NDW is now the employer . . . and the existing bargaining units remain appropriate." RD's Decision at 4. Alternatively, the IAFF, on behalf of itself and its affiliated locals, asserted that an appropriate unit would consist of all firefighters in NDW, region-wide. NDW agreed that a region-wide unit would be appropriate. AFGE opposed a region-wide unit of firefighters.

  • The petition in Case No. WA-RP-04-0036 was filed by the Fraternal Order of Police, Naval District Washington Labor Committee (FOP) on behalf of FOP, D.C. Lodge 1, Washington Navy Yard Labor Committee (FOP DC). The FOP [ v60 p471 ] DC represents all police officers and guards of NDW within the greater Washington, D.C., metropolitan area.
     

          The FOP asserted that all police officers and security officers or guards who were transferred to the NDW in October 2003, including police officers and guards at Annapolis Maryland, who are represented by FOP Maryland Lodge 6-F, accreted into FOP DC's existing unit at NDW. The FOP claimed that an appropriate unit would consist of police officers and guards throughout NDW, region-wide. The NDW agreed that such a unit would be appropriate. AFGE opposed the unit, as did the International Association of Machinists, Local Lodge 174, AFL-CIO (IAM), which represents all guards at the Naval Research Laboratory (NRL) in Washington, D.C., who were transferred to NDW following the creation of CNI. The IAM stated that its existing unit at NRL remains appropriate.

  • The petition and amended petition in Case No. WA-RP-04-0065 were filed by AFGE, which was the designated representative of the various AFGE locals. The AFGE locals represent a variety of employee groupings, such as: police officers and firefighters; police officers and security guards; police officers, firefighters and other nonprofessional employees; and nonprofessional employees, excluding police officers, security guards and firefighters.
     

          AFGE sought a unit of all nonprofessional general schedule and wage grade employees of NDW, including firefighters and police guards of NDW region-wide, but excluding the guards at NRL (who are represented by IAM) and nonappropriated fund employees (who are represented by the Hotel and Restaurant Workers Union, Local 25; Food and Beverage Workers Union, Local 32, AFL-CIO). See RD's Decision at 32 n.20. AFGE stated that an election for such a unit would not be necessary if the RD consolidated the existing AFGE units, as consolidation would result in AFGE representing more than 70 percent of the employees in the petitioned-for unit. Although the IAM agreed with the appropriateness of this unit, all other unions and the NDW opposed it. As an alternative, AFGE stated that it would be willing to represent the same unit as above, but including the guards at NRL. The IAM, IAFF, FOP and NDW opposed such a unit. Finally, AFGE also maintained, as another alternative, that it would be willing to represent a unit of all nonprofessional employees, excluding all police officers, guards and firefighters.

B.      RD's Decision

      The RD found that "region-wide units would be appropriate, including a separate functional unit for police officers and guards, one for firefighters, a unit of all other nonprofessional employees, and a unit of all nonprofessional employees that included police officers, guards and firefighters." RD's Decision at 18. Stated otherwise, the RD found that four different units were appropriate. As discussed below, he directed elections in three of the units.

      Addressing the firefighters first, and applying the principles of successorship set forth in Naval Facilities Engineering Serv. Ctr., Port Hueneme, Calif., 50 FLRA 363 (1995), the RD found that the "base-specific bargaining units" were no longer appropriate following the establishment of CNI. [n1] RD's Decision at 19. Instead, the RD found that a region-wide unit of firefighters at NDW was appropriate. The RD determined that an election was necessary because there were several unions that represented the firefighters who transferred to NDW and that none of the unions was "sufficiently predominant" under the test set forth in Dep't of the Army, U.S. Army Aviation Missile Command, (AMCOM), Redstone Arsenal, Ala., 56 FLRA 126 (2000) (AMCOM).

      Next, addressing the police officers and security guards, the RD rejected IAM's argument that its unit of guards at the Naval Research Laboratory continued to be appropriate. Rather, the RD found that a region-wide unit of such employees at NDW was appropriate. The [ v60 p472 ] RD also found that an election was necessary on the same basis as discussed above in connection with the firefighters. [n2] 

      The RD next addressed AFGE's claim that a unit of all nonprofessional general schedule and wage grade employees, including police officers, guards and firefighters, would be appropriate. The RD found that such a unit was appropriate and that an election would be necessary for the same reason discussed above. [n3] 

      Finally, the RD found appropriate a unit of nonprofessional general schedule and wage grade employees, excluding police officers, guards and firefighters, which AFGE had also claimed to be appropriate. Based on the same reasoning as stated above, the RD found that an election would be necessary.

      Having found that four units were appropriate, the RD stated that the scope of the units was "conflicting[.]" RD's Decision at 34. That is, the RD found that firefighters could not be in both a functional unit and an all-inclusive region-wide unit with all employees and, likewise, that police officers and security guards could not be in both functional and all-inclusive units. Applying United States Dep't of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328 (2000) (Norfolk), the RD determined that separate functional units of firefighters, on the one hand, and police officers and security guards on the other hand, would most preserve the status quo in terms of bargaining unit structure. As to the firefighters, the RD noted that, of the seven units that transferred to NDW, four were comprised solely of firefighters, accounting for more than half of the transferred firefighters. The RD found the situation to be similar for the police officers and security guards. Having found these functional units to be appropriate, the RD also determined that it would be appropriate to proceed to an election in a unit of firefighters, a unit of police officers and security guards, and a unit "of all other wage grade and general schedule nonprofessional employees." RD's Decision at 35.

III.      Positions of the Parties

A.      AFGE's Application for Review

      AFGE claims that the RD's decision "raises a substantial question as to the application of established case law and policy" in two respects. Application at 3. First, AFGE argues that the RD "failed to establish that the proposed consolidated unit was not an appropriate unit." Id. In this regard, AFGE contends that "the requisite criteria for consolidation are met through the establishment of one NDW unit." Id. at 4. Second, AFGE asserts that the RD erred in finding appropriate separate units of firefighters, police officers and security guards, and nonprofessional general schedule and wage grade employees. In AFGE's view, such units result in "unnecessary fragmentation." Id. at 3.

      In support of its application, AFGE takes the position that an appropriate unit consisting of general schedule and wage grade employees at NDW, including security and fire protection personnel, would satisfy the criteria in § 7112 of the Statute. [n4] In particular, AFGE points to the fact that all employees share a clear and identifiable community of interest, in that they have the same common personnel policies, are serviced by the same payroll office, report to a central command directorate, have the same working conditions and jointly support the overall mission of the Activity.

      As to the community of interest criterion, AFGE maintains that the RD's decision "seems to suggest that the only criteri[on] necessary . . . is the degree of similarity of occupational undertakings of the employees." Id. at 6. Pointing to § 7112(d) of the Statute, which permits the consolidation of existing units, AFGE maintains that the "reorganization of fire fighters and police officers/security guards into the NDW Region accomplishes a unified approach to carrying out the mission of NDW Region, CNI and the Department of the Navy." [n5] Id. at 7.

      AFGE also argues that the RD's decision does not promote effective dealings and efficiency of agency [ v60 p473 ] operations by "[s]eparating units along program lines[.]" Id. at 8. According to AFGE, "the RD's findings thwart CNI's efforts to consolidate two separate units (fire fighters and police officer/security guards) into one unit under Public Safety Division[.]" Id. AFGE explains that, in finding separate units appropriate, the Agency would be required to negotiate separate collective bargaining agreements, thereby creating substantial costs to the Agency and the labor organizations.

      Finally, AFGE asserts that the RD's decision promotes fragmentation, reducing the effectiveness and efficiency of operations. In AFGE's view, a unit of nonprofessional wage grade and general schedule employees, including firefighters, police officers and security guards, which the RD identified as an appropriate unit, "is the only unit configuration that disallows fragmentation [of] the units, therefore, promoting and securing the effective dealings and efficiency of agency operations." Id. at 9. AFGE argues that the RD's decision to direct an election in functional units, rather than in a broader, all-inclusive unit, "hurts AFGE's interests and invents a new status quo." Id. at 10. AFGE further argues that "[e]mployees should be able to vote against functional units," and that the RD failed to apply Defense Logistics Agency, Defense Supply Ctr. Columbus, Columbus, Oh., 53 FLRA 1114 (1998) (DLA). Id.

      Consistent with the above, as well as private sector case law, [n6] AFGE maintains that the RD should have ordered an election that would allow employees to cast a vote for each of several potential units that were found to be appropriate.

B.      Agency's Opposition

      The Agency asserts that the application for review is based on "a false premise[.]" Agency's Opposition at 3. The Agency states that despite AFGE's claim to the contrary, the RD found the petitioned-for unit of nonprofessional employees, firefighters and guards to be appropriate.

      The Agency also maintains that the RD correctly found that three region-wide units are appropriate and properly applied the Authority's decision in Norfolk.

C.      IAFF's Opposition

      IAFF takes the position that "AFGE relies on the incorrect premise that the Regional Director found AFGE's proposed unit inappropriate, when in fact the Regional Director did the opposite." IAFF Opposition at 3. IAFF also argues that the RD correctly found that a region-wide unit of firefighters is appropriate and correctly determined not to order an election in a unit of all employees.

IV.      Analysis and Conclusions

A.      The RD did not fail to apply established law in finding appropriate "functional" groupings of employees and directing elections in those units.

      Under § 7112(a) of the Statute, an appropriate unit may be established on "an agency, plant, installation, functional, or other basis . . . ." (Emphasis added). In assessing whether a unit is appropriate, the Authority examines whether the unit 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. See, e.g., United States Dep't of the Interior, Nat'l Park Serv., Wash., D.C., 55 FLRA 311, 314-15 (1999). In making these assessments, the Authority examines the factors presented on a case-by-case basis. See United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson AFB, 47 FLRA 602, 610 (1993). In addition, Authority precedent holds that a proposed unit need not be the "most appropriate" or the "only appropriate" unit in order to be an appropriate unit under the Statute. United States Dep't of the Air Force, Lackland AFB, San Antonio, Tex., 59 FLRA 739, 741 (2004).

      The Authority has previously found functional units of employees appropriate, including as relevant here, units of firefighters and units of police officers, where the employees in such units shared a community of interest and where the units promoted effective dealings and efficiency of agency operations. See, e.g., Dep't of the Navy, Naval Station, Norfolk, Va., 14 FLRA 702, 704 (1984) (unit of firefighters); Panama Canal Comm'n., 5 FLRA 104, 115-16 (1981) (police division).

      In this case, AFGE argues that the RD erred in finding functional units appropriate and ordering elections in those units. AFGE maintains that separate functional [ v60 p474 ] units would not promote effective dealings and efficiency of agency operations and that the RD's decision results in fragmentation of units. In addition, AFGE claims that the RD considered only "[t]he degree of similarity of occupational undertakings of the employees[,]" and that "[t]here is nothing in the established case law" applying the community of interest criterion "that gives weight to such a finding based on job titles." Application at 6, 5.

      Starting first with the criterion of community of interest, the Authority has not specified the particular factors or number of factors which must be found before concluding that a clear and identifiable community of interest exists. See, e.g., Dep't of Health and Human Serv., Region II, New York, New York, 43 FLRA 1245, 1254 (1992). As explained below, we find that the RD did not err in assessing the various factors or give undue weight to any particular factor in an improper manner.

      In addition to his findings regarding the commonality of occupations, the RD examined a number of other factors in determining that functional groupings of employees on a region-wide basis are appropriate. For example, as to the firefighters, the RD found that, regardless of their station assignment, they are organizationally and administratively a part of NDW, they all share common working conditions, such as working 24-hour shifts, and they are all subject to special overtime and retirement provisions. The RD recognized that there were differences among firefighters at different stations and that there was little interchange among them, but concluded, on balance, that they shared a community of interest. Likewise, as to police officers and security guards, the RD found that they report to the Director of Security and Law Enforcement for NDW, who has the authority to set working conditions. Among their shared working conditions, the RD found that police officers and guards provide round-the-clock coverage and receive additional pay based on their law enforcement duties. Finally, as to the other, nonprofessional employees, the RD found, for example, that they share common supervision, are in similar positions and share areas of consideration for reduction-in-force purposes. We find that AFGE has failed to establish that the RD erred in finding that these units satisfied the criterion of community of interest.

      We reach the same result concerning the criteria of effective dealings and efficiency of agency operations. Here, AFGE essentially claims that the RD erred because the Agency will have to deal with three separate units. The RD found, as to the functional units, that, prior to the reorganization at issue in this case, management had dealt effectively with separate regional units of firefighters and police officers/security guards. The RD also found that the separate region-wide units also bore a rational relationship to NDW's structure and that NDW had expressed a preference for such region-wide units. The RD also specifically found that a separate unit of all other nonprofessional employees would promote effective dealings and efficiency of operations. In our view, AFGE has not demonstrated that functional groupings of employees, which the Statute expressly permits, would not promote effective dealings and efficiency of agency operations in this case.

      As AFGE has failed to demonstrate that the RD erred in finding appropriate units of firefighters, police officers and security guards, and other nonprofessional general schedule and wage grade employees, there is no basis on which to find that the RD erred in directing that elections be held in such units.

B.      The RD erred in not directing an election in a unit of all affected employees.

      In its application for review, AFGE appears to be making two arguments. First, AFGE states that it filed a petition "seeking to consolidate its bargaining units" and that the RD "failed to establish that the proposed consolidated unit [of AFGE locals] was not an appropriate unit." Application at 3. Second, AFGE asserts that the RD's failure to direct an election in a unit of all eligible employees is contrary to the Authority's decision in DLA. Id. at 10-11.

1.      Failure to Find a Consolidated Unit

      Starting with the first claim, we note, as the Agency and IAFF assert, that the RD did, in fact, find appropriate a unit consisting of all firefighters, police officers and security guards, and other nonprofessional general schedule and wage grade employees. As we understand AFGE's claim, and consistent with the position that AFGE took before the RD, it appears that AFGE believes that the RD should have consolidated the various units represented by AFGE locals and certified a new AFGE unit comprised of those previous AFGE separate units. As AFGE had argued to the RD, a consolidated unit of AFGE-represented employees would provide AFGE with more than 70 percent of all bargaining unit employees in NDW, thereby obviating the need for an election under the framework of AMCOM.

      We reject the Union's argument. Under § 7112(d) of the Statute, two or more bargaining units represented by the same union may be consolidated "if the Authority considers the larger unit to be appropriate." See United States Dep't of the Air Force, Air Force Materiel Command, [ v60 p475 ] Wright-Patterson AFB, Ohio, 55 FLRA 359, 361 (1999). The reference in § 7112(d) to the consolidation of "appropriate" units incorporates the appropriate unit criteria established in § 7112(a). Thus, in order for a unit to be considered appropriate, all three criteria --community of interest, effective dealings, and efficiency of agency operations -- must be met.

      Here, AFGE makes no claim that the employees it represents, standing alone, satisfy the appropriate unit criteria. Consequently, consolidation is not available. Furthermore, insofar as AFGE asserts that the employees in its existing units should be aggregated and found to satisfy the "sufficiently predominant" test under AMCOM, we note that AFGE does not challenge the RD's finding that, even if aggregated, AFGE does not represent 70 percent or more of the employees who were transferred to NDW. See RD's Decision at 33 n.21.

      In sum, we find that AFGE has not established that the RD erred in not consolidating AFGE's units.

2.     Failure to Direct an Election in the Unit of All Employees

      For the reasons set forth below, we find that the RD erred in not directing an election in a unit of all nonprofessional general schedule and wage grade employees, including police officers, guards and firefighters, which he found to be an appropriate unit. As stated earlier, the RD found that the scope of the units was in conflict and, relying on Norfolk, directed elections in those units that, in his view, would most preserve the existing bargaining unit structure.

      In Norfolk, the Authority was presented with "competing successorship claims alleging different appropriate units[.]" 56 FLRA at 332. The Authority held that, in such circumstances:

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.

Id. (emphasis in original omitted; new emphasis added).

      In this case, the RD did not find that any of the petitioned-for, existing units continued to be appropriate. He specifically found that the three existing firefighter units, for which the IAFF and its locals had submitted petitions were no longer appropriate and, further, that the separate unit of guards at the NRL was no longer appropriate. As a result of the reorganization, the RD found that four completely new units were appropriate.

      In such a situation, and as discussed in DLA, an election should be conducted that permits a choice involving all of the units found appropriate. As stated in DLA, "[t]he Authority's practice is to order a self-determination election where more than one bargaining unit is found to be appropriate, and accretion and successorship are not established." DLA, 53 FLRA 1134. Further, "[i]n a self-determination election, the employees are permitted to vote whether they wish to [be] represented by one union in a larger bargaining unit or by another union in a separate, smaller unit." Id. The Authority's practice in this regard is consistent with long-standing practice in the private sector, in which the National Labor Relations Board permits employees to determine the scope of a unit by allowing them to cast a vote for each of several potential units that are found to be appropriate. See id. at 1135, citing Raytheon, 918 F.2d 249; Globe, 3 NLRB 294; and Armour, 40 NLRB 1333.

      In this case, the RD found that overlapping --all-inclusive and functional -- units were appropriate. As such, he should have directed an election in which employees who could be represented in either the all-inclusive or functional units could choose both their unit configuration and representative, consistent with the voting process described in DLA. See 53 FLRA at 1135.

      Based on the forgoing, we find that the RD failed to follow established law when he failed to direct an election in all of the units that he found to be appropriate under the Statute. As such, we grant AFGE's application for review as to this claim and direct that the RD take appropriate action to conduct an election in the units found appropriate.

V.     Decision

      We deny the application, in part, and grant the application, in part. The RD is directed to take action consistent with this decision.



Footnote # 1 for 60 FLRA No. 93 - Authority's Decision

   Under Port Hueneme, the Authority will find that a gaining entity is a successor employer and a union retains its status as the exclusive representative of the 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, under § 7112 (a)(1) of the Statute, 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 demonstrated that an election is necessary to determine representation.

Port Hueneme, 50 FLRA at 368. We note that, under the first factor, successorship may be found only where "an entire recognized unit, or portion thereof" is transferred and constitutes a majority of the post-reorganization unit. Id. As no single unit constituted a majority of any of the relevant post-reorganization units, there was no need for the RD to address the remaining Port Hueneme factors to conclude that an election was necessary.


Footnote # 2 for 60 FLRA No. 93 - Authority's Decision

   The RD also stated that if accretion principles were to be applied, an election would still be necessary. See RD's Decision at 31.


Footnote # 3 for 60 FLRA No. 93 - Authority's Decision

   This unit was one of the alternative units that AFGE sought to represent. See, supra, page 4. The principal unit sought by AFGE, that of all nonprofessional general schedule and wage grade employees, police officers, guards and firefighters, excluding employees of the Naval Research Laboratory (and nonappropriated fund employees) was found not to be an appropriate unit. See RD's Decision at 33 n.22.


Footnote # 4 for 60 FLRA No. 93 - Authority's Decision

   Section 7112(a) of the Statute provides:

The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved.

Footnote # 5 for 60 FLRA No. 93 - Authority's Decision

   Section 7112(d) of the Statute provides:

Two or more units which are in an agency and for which a