United States Department of the Navy, Naval Air Station Jacksonville, Jacksonville, Florida (Agency) and Fraternal Order of Police, Florida Lodge 125 (Petitioner) and American Federation of Government Employees, AFL-CIO, Local 696 (Incumbent/Labor Organization)

[ v61 p139 ]

61 FLRA No. 27

UNITED STATES
DEPARTMENT OF THE NAVY
NAVAL AIR STATION, JACKSONVILLE
JACKSONVILLE, FLORIDA
(Agency)

and

FRATERNAL ORDER OF POLICE
FLORIDA LODGE 125
(Petitioner)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 696
(Incumbent/Labor Organization)

AT-RP-04-0030

_____

ORDER
DENYING APPLICATION FOR REVIEW

August 2, 2005

_____

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 Fraternal Order of Police (FOP or Petitioner) of the Regional's Director's (RD's) Decision and Order dismissing FOP's petition seeking, among other things, to sever certain police officers from an existing certified bargaining unit represented by the American Federation of Government Employees, AFL-CIO, Local 696 (AFGE, Local 696). The Agency filed an opposition to FOP's petition.

      For the following reasons, we deny the Petitioner's application for review.

II.     Background and RD's Decision

A.     Background

      In February 1977, AFGE, Local 696 was granted exclusive recognition under Executive Order 11491 for a unit of employees at the Department of the Navy's (DON), Naval Air Station facility located in Jacksonville, Florida (NAS, JAX). This unit included "[a]ll graded appropriated fund employees" employed by the NAS, JAX, except professional employees and other statutory exclusions. RD's Decision at 2 and Joint Exhibit 3.

      NAS, JAX is one of 15 bases assigned to the Commander, Naval Region Southeast, one of 16 Navy Regional Commands comprising the "Commander, Navy Installations" (CNI) organization. The Commanding Officer of NAS, JAX, among other things, oversees the management of thirteen departments, including the Legal and Security Department, through an Executive Officer.

      The Director of Security, a civilian, reports directly to the Commanding Officer and Executive Director and has the authority to address an issue of concern or demand to bargain that would be presented by security personnel. The Security Department consists of four different divisions: operations, training, investigation, and physical security. With the exception of a physical security specialist, GS-0080-9 position that is currently vacant, all bargaining unit employees within the Security Department are GS-083 series, which includes police officers, police dispatchers and two detectives. The record reflects that at the time of the hearing in October 2004, there were 63 bargaining unit employees within the Security Department.

      The FOP filed a petition seeking to sever all series 083 police officers, relief police officers, police dispatchers and police detectives from the bargaining unit represented by AFGE, Local 696, and to hold an election to determine the exclusive representative for the petitioned-for-unit. [n1]  In short, the FOP sought to represent all series 083 employees represented by AFGE, Local 696. The Agency and AFGE, Local 696 objected to the petition.

      The FOP argued that the petitioned-for-unit of all series 083 employees is appropriate under the Federal Service Labor-Management Relations Statute and that unusual circumstances are present that warrant severing a unit of police officers from AFGE, Local 696's existing unit. The parties entered a stipulation that the current unit for which the AFGE, Local 696 is certified continues to be appropriate. The FOP argued that the unique working conditions of the series 083 employees support a finding that unusual circumstances exist that justify removing them from the existing unit. The [ v61 p140 ] Agency and AFGE, Local 696 disagreed with FOP's position.

B.     Regional Director's Decision

      In addressing the issues raised by the petition, the RD examined the Authority's precedent on severance and stated, among other things, that severance is not permitted: (1) "where an established [bargaining] unit continues to remain appropriate"; and (2) no "unusual circumstances are present" to justify the severance of the petitioned-for employees from the established bargaining unit. RD's Decision at 18 (citing Library of Congress, 16 FLRA 429 (1984)). The RD also relied on other cases, including Dep't of the Army, Headquarters, Fort Dix, Fort Dix, N.J., 53 FLRA 287 (1997) (Fort Dix); United States Dep't of the Treasury, Bureau of Engraving and Printing, 49 FLRA 100 (1994) (BEP); United States Dep't of Veterans Affairs, Wash., D.C., 35 FLRA 172 (1990) (Veterans Affairs).

      Noting the parties' stipulation, the RD found that the existing unit continues to be appropriate. The RD then stated that since the series 083 officers have been included in the existing unit, "severance will only be granted in accordance with the Authority's holding in Fort Dix." RD's Decision at 21. In Fort Dix, the Authority stated that the petitioned-for employees involved therein could sever their ties to the exiting bargaining unit "only if: (1) they constitute[d] a separate appropriate bargaining unit; and (2) they establish[ed] that there are unusual circumstances justifying the severance." 53 FLRA at 296.

      Applying the Authority's holding in Fort Dix, the RD found that the petitioned-for unit was not appropriate. The RD also stated that even if the petitioned-for unit was appropriate, severance from the existing unit would be justified only under certain unusual circumstances: (1) "when the character and degree of a reorganization results in the loss of a community of interest between some employees of a unit and the remainder of the unit"; or (2) "the representation afforded by the incumbent . . . is found to be inadequate." Id. at 24.

      The RD found there was nothing in the record to show that a reorganization affects the existing unit. The RD addressed the FOP's assertion that it could provide "specialized representation to the petitioned-for employees because it represents only police officers and, therefore[,] has knowledge of the special needs and conditions of employment for police." Id. at 24-25. Relying on Authority precedent, the RD found that "past accomplishments or successes of a particular union over another is not a factor in determining if severance is warranted." Id. at 25.

      The RD further noted that the FOP had placed "significant emphasis on a possible conflict of interest between police officers and other bargaining unit employees." Id. However, the RD found that the FOP had "provided no evidence or examples that such an occasion had even arisen. The possibility that a conflict of interest may potentially exist between bargaining unit employees does not, in and of itself, justify severing a unit." Id.

      The RD found that AFGE, Local 696 has represented unit employees concerning working conditions on both the local and national level. The RD found that the evidence revealed that AFGE's local representation regarding the petitioned-for unit was limited to negotiations concerning Alternative Work Schedule in 2000. However, according to the RD, the record also showed AFGE's participation in a Steering Committee that works at the national level to address the concerns of series 083 personnel. The RD further found that the record established a "pattern of informal resolutions of police issues and bargaining unit issues generally and individually."  Id. The RD found that the "lack of written documentation, as well as AFGE[,] Local 696's alleged policy of handling matters informally within the Security Department, was supported by [FOP's] own witness who became an AFGE[,] Local 696 steward even though he was not on dues allotment at the time." Id.

      The RD rejected FOP's contention that AFGE, Local 696's representation of series 083 officers has been inadequate. The RD found "disconcerting [AFGE, Local 696's] mishandling of the seventeen (17) police officers 1187 forms." Id. at 26. However, the RD found that this fact was "insufficient to warrant severance[,]" noting that: (1) AFGE, Local 696 permitted one of its police officers who filed an 1187 to act as a Steward; (2) AFGE, Local 696 participates regularly in meetings with Security Department management; (3) the record contained no evidence that AFGE, Local 696 had treated the series 083 officers "unfairly, ineffectively o[r] differently" than any other unit employee; and (4) the record did not show that series 083 officers experience inequities in working conditions that would justify severing employees from a unit in which they have been a part for more than 28 years. Id. The RD also found that no evidence had been provided to show that "rolling over the existing contract for an additional year affected the petitioned-for employees any differently" from other unit employees or deprived them of rights guaranteed under the existing contract and the Statute. Id. [ v61 p141 ]

      Accordingly, the RD found that the FOP had "presented no evidence that the Incumbent has failed, or refused to represent any of the petitioned-for employees or that it has treated them in a disparate manner." Id. The RD concluded that the existing unit continues to be appropriate, the petitioned-for unit is not appropriate, and there are no unusual circumstances warranting severance of series 083 employees. Therefore, the RD dismissed the petition.

III.      Positions of the Parties

A.     FOP's Application

      The FOP contends that "the time has come for the Authority to review its decisions on severance as they apply solely to police officers." Application for Review (Application) at 1. The FOP states that "[p]olice officers should not have to be held hostage in a unit where they are abandoned and subjected to incompetent representation by the exclusive representative." Id.

      The FOP contends that the RD erred in finding the petitioned-for unit inappropriate. The FOP also contends that the RD erred when she found that AFGE, Local 696 represented unit employees on both the local and national levels. According to the FOP, "no . . . efforts had been made by [AFGE, Local 696] to represent police officers in the several years prior to the petition." Id. at 6. The FOP asserts that the RD failed to properly evaluate whether AFGE, Local 696 was effective in its representation and failed to consider evidence that showed that AFGE, Local 696 had no experience dealing with an officer-involved shooting and with critical incidents, and had "no attorney call out for police officers involved in a use of force[.]" [n2]  Id.

      The FOP further contends that review is warranted because the RD "failed to properly apply establish[ed] law." Id. at 1. The FOP contends that the RD "rendered an unduly restrictive interpretation of Authority precedent in not allowing severance of the petitioned[-]for group." Id.

      The FOP asserts that the RD "committed prejudicial procedural error[]" concerning "substantial factual matters." Id. at 1 and 8. According to the FOP, AFGE, Local 696 "failed to cooperate with the Region or failed to timely provide evidence." Id. at 8. FOP refers to certain pages in the transcript where it objected to the admission of certain documents into the record as evidence. According to the FOP, a "sample review of [AFGE, Local 696's documents submitted in evidence] revealed that the exhibits relied upon by Local 696 were outdated, had no relevance at all or demonstrated th[e] [local] was simply provided a copy by management." Id. FOP asserts that the Hearing Officer denied its motion to strike the documents, which in its view "should have been granted given . . . that [it] was prejudiced" and "did not have proper time to review and refute these documents . . . ." Id. at 9.

B.     Agency's Opposition  [n3] 

      The Agency contends that the FOP has failed to show that established law or policy warrants reconsideration. The Agency states that the FOP asserts that a review of Authority policy on severance is warranted based on "police work and the high degree of specialization and representational requirements." Opposition at 4. The Agency further claims that the FOP stated in the transcript that "the request to sever was based on a belief that there are unusual circumstances that warrant severance." Id. at 3. The Agency contends that the FOP has not demonstrated "why the unique duties of police officers would justify a change in the law regarding severance from an existing unit solely as it applies to police officers." Id. at 4-5. Citing United States Dep't of the Navy, Naval District Washington, 60 FLRA 469 (2004), the Agency asserts that Authority precedent recognizes that police officers may be found to make up an appropriate unit standing alone or may be included in a unit along with other employees. The Agency contends that the "mere assertion that established law or policy warrants reconsideration" does not establish that review is warranted. Id. at 5.

      The Agency asserts that the FOP has not demonstrated that the RD failed to apply established law. The Agency also contends that the RD did not commit prejudicial error concerning substantial factual matters. The Agency claims that the FOP is "attempting to reargue the same points . . . made in both the hearing . . . and post hearing brief[s]." Id. at 6.

IV.     Analysis and Conclusions

A.     The FOP Has Not Demonstrated that Established Law or Policy Warrants Reconsideration

      The FOP asserts that this case requires the Authority "to review its decisions on severance as they apply [ v61 p142 ] solely to police officers." [n4]  Application at 1. The FOP states that "[p]olice officers should not have to be held hostage in a unit where they are abandoned and subjected to incompetent representation by the exclusive representative." Id.

      The Authority has long held that absent unusual circumstances, where an established bargaining unit continues to be appropriate, a petition seeking to sever employees from an overall unit represented by a labor organization will be dismissed in the interest of reducing the potential for unit fragmentation and, thereby, promoting effective dealings and efficiency of agency operations. Library of Congress, 16 FLRA at 431. The Authority has continued to adhere to this policy requiring "unusual circumstances" to justify severing a group of employees from an existing unit. See Veterans Affairs, 35 FLRA at 179 and the cases cited therein.

      One such circumstance involves the adequacy of representation afforded by the incumbent exclusive representative. The failure of an incumbent to fairly represent the employees sought would give rise to a question of representation concerning the petitioned-for unit and justify severance of those employees from an existing larger unit that continued to remain appropriate. See BEP, 49 FLRA at 106-07 (unusual circumstances existed that justified severance of certain special police from the existing unit); Library of Congress, 16 FLRA at 432 (no unusual circumstances existed that justified severing special police officers from existing unit of nonprofessional employees of an agency). Thus, contrary to FOP's claim, established law already takes into account claims that unit employees are not properly represented by an incumbent in determining whether severance is warranted.

      FOP contends that the Authority should review its decisions on severance as they apply solely to police officers. However, the FOP has not demonstrated that the circumstances of the series 083 officers involved in this case require the Authority to reexamine its precedent on severance as it concerns police officers. Accordingly, the FOP has not demonstrated that Authority law or policy warrants reconsideration.

B.     The RD Did Not Fail to Apply Established Law

      The FOP contends that the RD "rendered an unduly restrictive interpretation of Authority precedent in not allowing severance of the petitioned[-]for group." Application at 1.

      As mentioned above, where an established bargaining unit continues to be appropriate, a petition seeking to sever employees from an overall unit represented by a labor organization will be dismissed in the interest of reducing the potential for unit fragmentation and, thereby, promoting effective dealings and efficiency of agency operations, absent unusual circumstances. Library of Congress, 16 FLRA at 431. One such circumstance involves the adequacy of representation afforded by the incumbent exclusive representative. The failure of an incumbent to fairly represent the employees sought would give rise to a question of representation concerning the petitioned-for unit and justify severance of those employees from an existing unit that continued to remain appropriate.

      As the cases cited above show, the Authority has previously applied its precedent concerning severance to cases involving officers and has evaluated the circumstances of these type of employees and determined whether such employees should be severed from an existing unit. Further, while the FOP suggests that the criteria for severance of police officers should be based on the success of a union in representing employees like the series 083 officers, Authority precedent establishes that the success of a petitioning union in dealing with conditions of employment of unit employees is not a factor in determining if severance is warranted. See, e.g., National Assoc. of Government Employees/Service Employees International Union, Local 5000, AFL-CIO-CLC, 52 FLRA 1068, 1077-79 (1997). Rather, in determining unusual circumstances, the Authority looks to, as relevant here, whether the incumbent has failed to fairly represent the employees sought. Id.

      In this case, the RD applied Authority precedent and found that there were no unusual circumstances that would justify the severance of the petitioned-for employees from the existing unit. The RD's application [ v61 p143 ] of Authority precedent to the facts of this case was appropriate and fully supported by the evidence. There is nothing in the record that shows that the petitioned-for employees have been "abandoned" or "subjected to incompetent representation by the exclusive representative." Application at 1. Rather, as the RD found, AFGE, Local 696 has represented such employees concerning their working conditions and continues to represent them. In this regard, the record shows that AFGE, Local 696 engaged in a "pattern of informal resolutions of police issues and bargaining unit issues generally and individually." RD Decision at 25. The use of such informal policy within the Security Department "was supported by [FOP's] own witness" who became an AFGE, Local 696 steward even though he was not on dues allotment at the time. Id. at 26. The record contains no evidence that shows that AFGE, Local 696 had treated the series 083 officers "unfairly, ineffectively, or differently" than any other unit employee." Id.

      The record thus does not demonstrate that the employees sought here have not been adequately represented. Therefore, the FOP has failed to establish that the RD failed to apply established law. [n5] 

C.     The RD Did Not Commit a Prejudicial Procedural Error

      The FOP claims that the RD committed a "prejudicial procedural error concerning substantial factual matters[.]" Application at 1. As support, the FOP contends that the hearing officer "denied its motion to strike . . . documents" that should not have been admitted as evidence into the record." Id. at 8. We note that the FOP's claim that the RD "committed prejudicial procedural error concerning substantial factual matters" combines two separate grounds for review under § 2422.31(c) of our Regulations--the grounds that the RD "[c]ommitted a prejudicial procedural error;" and "[c]ommitted a clear and prejudicial error concerning a substantial factual matter." Id. at 1; 5 C.F.R. § 2422.31(c)(3)(ii) and (iii). However, as the claim objects only to the Hearing Officer's procedural rulings, it will be resolved as an alleged procedural error under § 2422.31(c)(3)(ii) of our Regulations.

      The RD affirmed the hearing officer's rulings, finding the rulings "free from prejudicial error[.]" RD's Decision at 2. Hearing officers are not bound by "[f]ormal rules of evidence" and have the authority to "take any action necessary to . . . conduct, continue, control, and regulate the hearing, including ruling on motions . . . ." 5 C.F.R. §§ 2422.18(b) and 2422.21(b). The FOP has not provided any evidence or argument indicating that the hearing officer erred in overruling the FOP's objections or motion. Moreover, the record reveals that the FOP, in its post-hearing brief, addressed the documents in dispute and provided specific reasons why the documents should not be admitted as well as why the documents were not relevant. See FOP's Post-Hearing Brief at 16-18.

      In these circumstances, we find that the FOP has not demonstrated that the RD or the hearing officer committed a prejudicial procedural error. See, e.g., Social Security Administration, 60 FLRA 590, 592 (2005) (union did not demonstrate that hearing officer committed prejudicial procedural error by overruling "every single objection . . . union made") (citing United States Sec. & Exch. Comm'n, Wash., D.C., 56 FLRA 312, 318 (2000)) (hearing officer did not commit clear prejudicial error where officer had discretion to limit witness testimony and the agency failed to establish that the officer prejudiced the agency). Accordingly, review of the RD's decision is not warranted on the ground that the RD committed a prejudicial procedural error.

V.     Order

      The application for review is denied.



Footnote # 1 for 61 FLRA No. 27 - Authority's Decision

   Currently, there are two other unions besides AFGE, Local 696 representing employees at NAS, JAX. This petition does not affect employees in those bargaining units.


Footnote # 2 for 61 FLRA No. 27 - Authority's Decision

   This refers to a 24-hour on-call attorney who is able to handle this type of situation. See RD's Decision at 15.


Footnote # 3 for 61 FLRA No. 27 - Authority's Decision

   AFGE, Local 696 did not file an opposition.


Footnote # 4 for 61 FLRA No. 27 - Authority's Decision

   Under § 2422.31(c) of the Authority's Regulations, the Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:

(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a      substantial factual matter.

   5 C.F.R. § 2422.31(c).


Footnote # 5 for 61 FLRA No. 27 - Authority's Decision

   To the extent that the FOP challenges the RD's findings with respect to whether the petitioned-for unit constitutes an appropriate unit--that is, whether the petitioned-for unit has a "distinct and separate community of interest;" and would promote effective dealings and efficiency of Agency operations--we find it unnecessary to address the FOP's contentions concerning the RD's findings. The FOP has not demonstrated that the RD erred by finding that there were no unusual circumstances that would justify the severance of the s