Defense Logistics Agency, Fort Belvoir, Virginia (Agency) and American Federation of Government Employees, AFL-CIO (Labor Organization/Petitioner)

[ v60 p701 ]

60 FLRA No. 133

DEFENSE LOGISTICS AGENCY
FORT BELVOIR, VIRGINIA
(Agency)

and

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

WA-RP-04-0064

_____

DECISION AND ORDER
DENYING APPLICATION FOR REVIEW

March 8, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on an application for review filed by the Defense Logistics Agency, Fort Belvoir, Virginia (DLA or Agency) under § 2422.31 of the Authority's Regulations.

      In its petition before the Acting Regional Director (ARD), the American Federation of Government Employees, AFL-CIO (Union or Petitioner) sought an election to determine whether certain unrepresented employees wished to be included in an existing consolidated unit. In his Decision and Direction of Election, the ARD found the Union's proposed unit appropriate and ordered an election.

      The Agency seeks review of the ARD's Decision and Direction of Election. The Union did not file an opposition to the application.

      For the reasons set forth below, we deny the application, and direct an election.

II.      Background and ARD's Decision [n2] 

      DLA is responsible for worldwide logistics support for the missions of the United States Military Departments and the Unified Combatant Commands. The Union represents separate nationwide consolidated units of DLA's professional and nonprofessional employees. The nonprofessional consolidated unit consists of approximately 14,025 employees, including approximately 20 employees who work in DLA's Customer Support Office (CSO) headquarters at Fort Belvoir, Virginia. These CSO employees occupy the following positions: Logistics Management Specialist, Supply Management Specialist, Management and Program Analyst, and Office Automation Clerk.

      There are approximately 62 employees referred to as Customer Support Representatives (CSRs) who are assigned to the CSO and are not located at Fort Belvoir. They work elsewhere at numerous military installations throughout the United States. These CSRs were excluded from coverage when the consolidated bargaining unit was certified, and they are not currently included in any bargaining unit. [n3] See ARD's Decision at 2. All CSRs, with one exception, encumber the position of Logistics Management Specialist, a position that is unique to the CSO. See id. at 3. One CSR is a Supply Management Specialist, GS-2003.

      The Union filed a petition seeking an election to determine if these employees wished to be represented by the Union "as part of" the existing consolidated unit of DLA nonprofessional employees. [n4] Stipulation, para. 2. The Agency opposed the petition, arguing that the addition of the CSRs to the existing consolidated unit does not satisfy the requirements of § 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute).

      The CSO serves as DLA's focal point for monitoring and assessing DLA's logistical support to customers and coordinating resolution of customer issues and concerns within DLA headquarters and field activities. See ARD's Decision at 2. The CSO is comprised of six teams to which the CSRs are assigned. See id. The [ v60 p702 ] teams are as follows: (1) Customer Support Representative Support Team; (2) Army Team; (3) Air Force Team; (4) Marine Corps Team; (5) Navy Team; and (6) the Foreign Military Defense Programs Team. A civilian supervisor heads each team. See id. The team supervisors are located at CSO headquarters. They are responsible for preparing and approving performance appraisals, assigning work, approving leave, recommending employees for awards, initiating disciplinary action and approving overtime and compensatory time for the CSRs on their teams, including the CSO headquarter employees. See id.

      The CSRs serve as the DLA's front-line support to military service customers and the functions they perform are unique within the DLA. See id. The CSRs coordinate and facilitate the provision of supplies and logistics services to their assigned military organizations. They work closely with their military customers in monitoring the effectiveness of DLA's logistics support. In most cases, they share office space with their customers. See id. at 3. The CSRs have authority to negotiate Performance Based Agreements (PBAs) with customers to resolve logistics issues. PBAs specify the actions to be taken by both the customer and the DLA to resolve logistics issues. As a result, the CSRs receive many of their day-to-day tasks directly from their customer organization at the host installation. In addition, the CSRs work with DLA headquarters and other DLA activities including the Depots and Defense Supply Centers.

      The numerical distribution of CSRs at military facilities throughout the United States other than at Fort Belvoir is as follows: Of the 44 military installations that have a CSR, 29 installations have one CSR stationed there; 11 installations have two CRS; and the remaining 4 installations have either three or four CSRs. See id. at 2.

      According to the ARD, there has been "interchange" among CSRs and other DLA employees. See id. In this regard, the ARD found that 30 DLA employees moved into CSO positions by reassignment, promotion and/or change in grade during the 3-year period prior to July 2004. See id. at 3. The ARD further found that, during this same period, 14 CSO employees, including CSRs, moved to other DLA positions through reassignment, promotion and/or a change in grade. See id. The ARD added that CSO employees, including CSRs, have on occasion been detailed to other DLA positions. See id.

      In addition, the ARD found that CSRs have frequent and regular job contact with employees in the existing consolidated unit of nonprofessional employees, including Inventory Management Specialists, Weapons Systems Support Specialists, and Product specialists. See id. The ARD further found that a small number of CSRs are stationed at Depots in the existing consolidated unit of nonprofessional employees. See id.

      All DLA employees, including the CSRs, are subject to the same DoD and DLA personnel policies and practices affecting leave, awards, discipline, disability and workers compensation benefits, retirement, reduction-in-force (RIF), merit promotion, equal employment opportunity, health and life insurance, and the performance appraisal system. See id. The Defense Finance and Accounting Service provides payroll services for all DLA employees, including the CSRs.

      Personnel servicing is provided for DLA employees by customer support offices located in New Cumberland, Pennsylvania and Columbus, Ohio. See id. These offices are responsible for maintaining personnel files and processing awards, disciplinary actions, promotions and within-grade and merit staffing actions. The New Cumberland customer support office provides personnel servicing for all CSO employees, including the CSRs.

      The ARD found that the DLA labor relations policy affecting CSO employees, including CSRs, resides with the DLA Headquarter's Labor & Employee Relations Office. See id. at 4. According to the ARD, the DLA and the Union are subject to a master collective bargaining agreement. See id. The parties' collective bargaining agreement was effective October 9, 2003, with a 3-year duration. See id. The ARD noted that the parties agree that should the CSRs vote to be included in the Union's existing consolidated unit of nonprofessional employees, the CSRs would be covered by the collective bargaining agreement. See id.

      Based on established Authority precedent, the ARD noted that, where a union petitions for an election to add employees to an existing unit, the inclusion of such employees must result in an overall unit which meets the appropriate unit criteria set forth in § 7112(a) of the Statute. [n5] In addition, the ARD stated that if the proposed unit is a residual unit, (described by the ARD as a unit of all eligible unrepresented employees of the type covered by the petition), then strict application of the appropriate unit criteria is not required; however, if the proposed unit is not a residual unit, then the unit must constitute a separate, appropriate unit under § 7112(a). See ARD's Decision at 5 (citing General Services Administration, Las Vegas Fleet Management Center, Sparks Field Office, Sparks, Nevada, [ v60 p703 ] 48 FLRA 1258, 1261-62 (1993) (GSA, Sparks) and Federal Trade Commission, 35 FLRA 576, 582-83 (1990) (FTC)).

      Applying GSA, Sparks, 48 FLRA at 1261-62, the ARD concluded that the unit covered by the Union's election petition is an appropriate residual unit because it consists of all unrepresented CSRs within the CSO. See id. at 5. In so finding, the ARD noted that the functions performed by the CSRs are unique within DLA. The ARD explained that all CSRs, with one exception, encumber the position of GS-346-13 Logistics Management Specialist, a position that is not elsewhere in DLA. The ARD also noted that the CSRs perform a unique function of serving as "DLA's front-line support for its military customers." Id. The ARD concluded that, under these circumstances, "the unrepresented CSRs comprise a functional group that is properly considered as a residual unit for the purpose of voting on whether to be included in the Union's existing consolidated nonprofessional bargaining unit." Id. (citing GSA, Sparks, 48 FLRA at 1261-62; FTC, 35 FLRA at 582-83; and The Alaska Railroad, Federal Railroad Administration, Dep't of Transportation, 3 FLRA 651 (1980)).

      Alternatively, the ARD concluded that, even if the CSRs do not comprise an appropriate residual unit, "the CSRs nonetheless constitute an appropriate unit." Id. at 6. The ARD found that "the unit of CSRs bears a rational relationship to the operational and organizational structure of the DLA and there was no showing that the unit of CSRs would impede the efficiency of DLA's operations." See id. at 6 (citing United States Dep't of the Air Force, Lackland AFB, San Antonio, Tex., 59 FLRA 739, 741-43 (2004)).

      The ARD further concluded that the inclusion of the unrepresented CSRs in the Union's existing consolidated unit of nonprofessional employees would result in an overall unit that is appropriate under § 7112(a). In this regard, the ARD found that it was undisputed that the Union's existing consolidated unit was appropriate, and that there was no showing that the addition of the unrepresented CSRs in the existing unit would render the unit inappropriate. Applying United States Dep't of the Navy, Fleet and Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 960 (1997) (FISC), the ARD found that the record demonstrates that the CSRs share a community of interest with the existing consolidated unit of nonprofessional employees. See ARD's Decision at 5-6. The ARD also found that their inclusion will promote effective dealings with, and efficiency of operations of the Agency. See id.

      Based on the foregoing, the ARD directed an election to determine whether the unrepresented CSRs wished to be included in the existing consolidated unit.

III.      Agency's Application for Review

      The Agency contends that review of the ARD's Decision is warranted on two grounds. See Application at 1.

      First, the Agency argues that the ARD's decision raises an issue for which there is an absence of precedent. See id. at 5. The Agency "asserts that the unique employment situation of the CSRs has not been addressed in prior Authority decisions, and that the Authority should recognize a new criterion for determining whether a community of interest exists in this case." Id. at 5. In this regard, the Agency contends that there is no precedent that addresses "the concept of community of interest in relation to a group of employees that is dispersed thinly and embedded into organizations belonging to other agencies, as are the CSRs." Id.

      Second, the Agency asserts that established law or policy on community of interest warrants reconsideration to address the unique employment situation of the CSRs. See id. In this regard, the Agency "would urge the Authority to establish that the degree of control over and knowledge of day-to-day working conditions of the group of employees is a relevant factor in determining whether a community of interest exists for a group of dispersed employees." Id. According to the Agency, "the existing community of interest factors as applied to this case by the Regional Director left its primary arguments virtually unaddressed, and ... recognition of an additional factor in an employment situation such as that of the CSRs is warranted." Id. at 6.

      The Agency proposes the following additional factor for consideration in an employment situation such as that of the CSRs: "Does the Agency have sufficient control over and knowledge of day-to-day working conditions of the employees to permit effective labor-management dealings?" Id. The Agency maintains that "this factor argues strongly against finding a community of interest in this case." Id. [ v60 p704 ]

      In support of both of its grounds for granting the application, the Agency argues that the CSRs do not meet the three criteria in § 7112(a) of the Statute for an appropriate unit. As an initial matter, the Agency contends that the Authority should apply the "residual unit" concept to this case, and find that the proposed unit does not constitute a residual unit because it does not include all unrepresented nonprofessional employees of DLA, but is limited to unrepresented CSRs. In support, the Agency cites Immigration and Naturalization Service, 12 FLRA 309 (1983) (INS).

      Further, the Agency contends that the CSRs do not share a community of interest either among themselves or with the existing nonprofessional consolidated unit. According to the Agency, "[t]his case presents an unusual situation in which the employees work for one agency but are duty stationed with one of several different agencies." Application at 15. The Agency maintains that the CSRs are "scattered" at 44 different military installations and, among other things, are subject to "44 different sets" of parking arrangements, smoking practices, building conditions, base security arrangements, and food service availability and pricing. Id. at 12. The Agency additionally states that, although the CSRs report to supervisors at DLA headquarters, "the majority of their daily tasks are given to them directly by the customer personnel at their location[.]" Id. In this regard, the Agency asserts that the "dispersed nature of the CRSs' employment and the expectation that they will handle and resolve customers' logistics problems as they arise, leave CSRs less subject to daily work assignments from their supervisors than is the case for most Federal employees." Id. at 13. The Agency maintains that "because of the dispersion of the CSRs at so many sites, most of them being the only CSR at their installation," the CSRs do not have a community of interest among themselves and with the existing consolidated unit of nonprofessional employees. Id. at 14.

      The Agency also argues that the inclusion of the unrepresented CSRs in the Union's existing consolidated unit of nonprofessional employees would not promote effective dealings and efficiency of the Agency's operations. The Agency asserts that including the CSRs "would complicate a bargaining relationship that would be subject to 44 different sets of local working conditions." Id. at 19. The Agency explains that "many of the local conditions that a union might typically want to bargain over are under the control of the customer activity at each installation." Id. The Agency asserts that this complicated bargaining situation would affect the efficient operations of the Agency. See id. at 21.

IV.      Analysis and Conclusions

A.      There Is No Absence of Precedent for the ARD's Determination that the Inclusion of the Unrepresented CSRs in the Union's Existing Consolidated Unit Results in an Appropriate Unit

      A proposed unit is appropriate under § 7112(a) of the Statute if: (1) the employees at issue share a clear and identifiable community of interest; (2) the unit promotes effective dealings with the agency involved; and (3) the unit promotes efficiency of operations of the agency involved. See FISC, 52 FLRA at 959. Determinations as to each criterion are made on a case-by-case basis by balancing the relevant factors. Id. at 960. The Authority has set out a variety of relevant factors for these inquiries, but has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. See AFGE, Local 2004, 47 FLRA 969, 972 (1993) (Local 2004). The requirement that employees share a community of interest is intended to "ensure that it is possible for [employees] to deal collectively [with management] as a single group." FISC, 52 FLRA at 960. Employees previously excluded from an existing unit may be added to that unit through an election if inclusion does not render the existing unit inappropriate. See FTC, 35 FLRA at 584-86.

      In concluding that the inclusion of the unrepresented CSRs in the Union's existing consolidated unit of nonprofessional employees results in an appropriate unit, the ARD found that the CSRs share a community of interest with the employees in the Union's existing consolidated unit of nonprofessional employees. The ARD found that the unrepresented employees are governed by the same personnel offices as the employees in the existing consolidated unit, See id. at 3-4, 6 (citing FISC, 52 FLRA at 960-61). In addition, the ARD found frequent and regular on-the-job interaction between the CSRs and employees in the existing consolidated unit, and some interchange. See id. at 3, 6.

      Further, in concluding that the inclusion of the unrepresented CSRs in the Union's existing consolidated unit of nonprofessional employees results in an appropriate unit, the ARD found that the proposed overall unit would promote effective dealings and efficient operations of DLA. In this regard, the ARD found that "should the CSRs vote for inclusion in the existing unit, they would be covered by the parties' master collective bargaining agreement, subject to the same labor-relations policies, and would be serviced by the same DLA labor relations and personnel offices." ARD's Decision at 6. [ v60 p705 ]

      The Agency has not offered any evidence to rebut the ARD's factual findings, which support his conclusion that the CSRs share a community of interest with the employees in the Union's existing consolidated unit of nonprofessional employees. We find no merit to the Agency's argument that there are "no prior Authority decisions that address the concept of community of interest in relation to a group of employees that is dispersed thinly and embedded into organizations belonging to other agencies, as are the CSRs." Application at 5. We note that geographic proximity, unique conditions of employment, and distinct local concerns, are factors that have been identified as relevant to community of interest. See FISC, 52 FLRA at 961.

      The ARD found that the unrepresented CSRs are stationed in small numbers in 44 military installations that are not part of the Agency. See ARD's Decision at 2. The ARD did not expressly address the issue of the lack of co-location among these employees and the employees in the Union's existing consolidated unit of nonprofessional professional employees, as it relates to their community of interest. However, we find that the record is sufficient for us to do so. We find that the lack of co-location among affected employees, standing alone, does not indicate that the unrepresented CSRs do not share a community of interest with the employees in the Union's existing consolidated unit of nonprofessional professional employees. The other factors relied on by the ARD outweigh that factor and support his finding of community of interest. In particular, the ARD's findings that the unrepresented CSRs are governed by the same personnel offices as the employees in the existing consolidated unit and that there is frequent and regular on-the-job interaction between the CSRs and employees in the existing consolidated unit support a finding that the unrepresented CSRs share a community of interest with the employees in the Union's existing consolidated unit of nonprofessional employees consistent with the Authority's precedent. See id. at 5. Therefore, we find that the ARD applied established law in concluding that the unrepresented CSRs share a community of interest with the employees in the Union's existing consolidated unit of nonprofessional employees and that there is not an absence of precedent supporting the ARD's conclusion, as claimed by the Agency.

      We reach the same result concerning the criteria of effective dealings and efficiency of agency operations. Again, we note that the ARD did not expressly address the issue of the lack of co-location among unrepresented CSRs and the employees in the Union's existing consolidated unit of nonprofessional employees, as it relates to effective dealings and efficiency of agency operations. However, we find that the record is sufficient for us to do so. We also find that the lack of co-location among the unrepresented CSRs and the employees in the Union's existing consolidated unit of nonprofessional employees, standing alone, does not indicate that the proposed overall unit would not promote effective dealings with, and efficient operations of, the DLA. Other factors relied on by the ARD outweigh those factors and support his finding that the proposed overall unit would promote effective dealings with efficient operations of the DLA.

      In particular, the ARD's findings that "should the CSRs vote for inclusion in the existing unit, they would be covered by the parties' master [collective bargaining agreement], subject to the same labor-relations policies, and would be serviced by the same DLA labor relations and personnel offices" (See ARD's Decision at 6) support a finding that the overall unit of the affected employees would promote effective dealings and efficient operations of DLA consistent with the Authority's precedent. See, e.g., AFGE, Local 2004, 47 FLRA at 973 (proposed unit would promote effective dealings with efficient operation because of the division-level authority for personnel matters).

      The ARD also did not specifically address the Agency's arguments that the local conditions of the unrepresented CSRs over which a union might typically want to bargain are under the control of the customer activity at each installation, including the day-to-day assignment of work assignments. On review of the record, we find that the inclusion of the unrepresented CSRs in the Union's existing consolidated unit of nonprofessional employees would promote effective dealings and efficient operations of DLA. The fact that most of the unrepresented CSRs are stationed at other activities does not detract from the fact that all of the unrepresented CSRs are employees of the Agency and the Agency retains control over many of their conditions of employment, such as leave, awards, discipline, merit promotion, and performance appraisal. See ARD Decision at 3. While control of certain conditions of employment by other agencies may have the practical effect of limiting bargaining over these subjects, this does not establish that including the employees in the existing unit renders the unit inappropriate. See Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Ariz., 53 FLRA 1200, 1220 (1998) (Phoenix Area Indian Health Service) (the fact that not every matter is within an agency's control does not provide a reason to foreclose negotiations). [ v60 p706 ]

      Therefore, we find that the ARD properly applied established law in concluding that the inclusion of the unrepresented CSRs in the Union's existing consolidated unit of nonprofessional would promote effective dealings and efficient operations of DLA, and that there is not an absence of precedent supporting the ARD's conclusion, as claimed by the Agency.

      Accordingly, we conclude that review of the ARD's Decision is not warranted on the ground that there is an absence of precedent for the ARD's conclusion that the inclusion of the unrepresented CSRs in the Union's existing consolidated unit of nonprofessional employees results in an appropriate unit.

B.      Authority Precedent As to Community of Interest Does Not Warrant Reconsideration

      We find no merit to the Agency's assertion that a new factor is needed for assessing the community of interest criterion. The new factor which the Agency proposes is: "Does the Agency have sufficient control over and knowledge of day-to-day working conditions of the employees to permit effective labor-management dealings?" See Application at 6.

      The factor set forth by the Agency is already considered by the Authority in addressing a different criterion for determining the appropriateness of a proposed unit: whether the proposed unit promotes effective dealings with the agency involved. See FISC, 52 FLRA at 962. The Authority has developed factors to assess in determining whether a petitioned-for unit would promote effective labor-management dealings. See Phoenix Area Indian Health Service, 53 FLRA at 1218; FISC, 52 FLRA at 961. The criterion of effective dealings pertains to the relationship between management and the exclusive representative selected by unit employees in an appropriate bargaining unit. In assessing this requirement the Authority examines such factors as: the past collective bargaining experience of the parties; the locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit; the limitations, if any, on the negotiation of matters of critical concern to employees in the proposed unit; and the level at which labor relations policy is set in the agency. See id. Because the criterion of effective dealings already takes into account the factor proposed by the Agency, we reject the Agency's argument that the factor should be specifically added to the resolution of the community of interest criterion.

      Accordingly, we conclude that review of the ARD's Decision is not warranted on the ground that Authority precedent concerning the community of interest factor warrants reconsideration. [n6] 

C.      The Agency's remaining arguments do not establish that the ARD erred in directing an election

      The Agency argues, based on GSA, Sparks, that the ARD did not appropriately apply the "residual unit" concept to this case and that the petitioned-for employees may not be included in the Union's existing consolidated unit of nonprofessional employees unless the petitioned-for employees constitute a separate, appropriate unit.

      In GSA, Sparks, the union filed a representation petition to determine whether an employee wished to be included in an existing consolidated unit. The Authority held that where a union petitions for an election to add unrepresented employees to an existing unit, the unit sought must be found to constitute a separate, appropriate unit unless it constitutes a residual unit, in which case it need not constitute a separate, appropriate unit. See GSA, Sparks, 48 FLRA at 1262.

      In FTC, which was decided prior to GSA, Sparks, the Authority addressed whether, or to what extent, a representation petition is appropriate to include in a unit employees who (1) were excluded from a union's original certification pursuant to a pre-election agreement approved by the Regional Director, and (2) are not part of an appropriate residual unit or any other appropriate unit. In FTC, the Authority held, based on National Labor Relations Board precedent, that a petitioned-for separate unit did not constitute an appropriate residual unit because, as relevant here, the employees did not share a community of interest separate and apart from [ v60 p707 ] an existing unit. FTC, 35 FLRA at 582-83. The Authority also held that where a union petitions for an election to add unrepresented employees to an existing unit, the inclusion of the unrepresented employees in the union's existing unit must result in an overall unit that is appropriate under § 7112(a). See FTC, 35 FLRA 584-86. In contrast to GSA, Sparks, FTC does not require that the employees sought to be added by election to the existing unit must constitute a separate, appropriate unit.

      The Authority's decision in GSA, Sparks departs from FTC without any explanation. Moreover, neither the record in this case nor applicable precedent suggests a reason to require a union to establish that employees the union seeks to add to an existing unit must constitute a separate, appropriate unit. [n7] Therefore, to the extent that GSA, Sparks requires that the employees sought to be added by election to the existing unit must constitute a separate, appropriate unit, we will no longer follow it.

D.      Summary

      In sum, we sustain the ARD's findings that an election is warranted in this case. [n8] 

V.      Decision

      We deny the application. We sustain the ARD's finding that an election is warranted in this case.


File 1: Authority's Decision in 60 FLRA No. 133
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 60 FLRA No. 133 - Authority's Decision

   The dissenting opinion of Chairman Cabaniss is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 133 - Authority's Decision

   An investigation was conducted by the ARD, but no hearing was held in this case. The parties stipulated to certain facts in this case.


Footnote # 3 for 60 FLRA No. 133 - Authority's Decision

   There is no indication in the parties' stipulation or elsewhere in the record why the CSRs were excluded from the consolidated bargaining unit.


Footnote # 4 for 60 FLRA No. 133 - Authority's Decision

   The Union's petition does not seek an election to determine if these employees wish to be represented by the Union as a stand- alone unit.


Footnote # 5 for 60 FLRA No. 133 - 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 # 6 for 60 FLRA No. 133 - Authority's Decision

   Member Pope notes that the dissent would have the Authority grant review and reconsider established law to address an