United States, Department of Veterans Affairs, Va Connecticut Healthcare System, West Haven, Connecticut (Agency) and American Federation of Government Employees, AFL-CIO (Labor Organization/Petitioner) and National Association, of Government Employees, SEIU (Labor Organization/Incumbent)

[ v61 p864 ]

61 FLRA No. 175

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
VA CONNECTICUT HEALTHCARE SYSTEM
WEST HAVEN, CONNECTICUT
(Agency)

and

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

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, SEIU
(Labor Organization/Incumbent)

BN-RP-05-0023

_____

ORDER
DENYING APPLICATION FOR REVIEW

November 21, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.      Statement of the Case

      This case is before the Authority on an application for review filed by petitioner American Federation of Government Employees (AFGE) under § 2422.31 of the Authority's Regulations. Neither the Agency nor incumbent National Association of Government Employees (NAGE) filed an opposition to AFGE's application.

      The Regional Director (RD) found that the bargaining unit represented by NAGE at the Agency's Newington facility continues to be appropriate and he dismissed AFGE's petition to be certified as the representative of these employees.

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

II.     Background and RD's Decision

      For more than 20 years, AFGE has represented employees at the Agency's hospital in West Haven, Connecticut as part of a consolidated bargaining unit. For a similar period of time, NAGE has represented a [ v61 p865 ] unit of employees at the Agency's hospital in Newington, Connecticut as part of a consolidated bargaining unit. Prior to 1995, the two hospitals had separate directors and administrative offices.

      In 1995, the Agency conducted an "organizational integration" of the West Haven and Newington facilities that resulted in the creation of the Connecticut Healthcare System (CHCS). Decision at 4. According to information submitted by AFGE and not disputed by the other parties, this reorganization resulted in the two facilities sharing a single director, as well as personnel, labor relations, and administrative services.

      According to the RD, the Newington facility is an ambulatory care center that has no inpatient or surgery services and employs 145 members of the NAGE bargaining unit, while the West Haven facility provides a full range of patient care services and employs 823 members of the AFGE bargaining unit. [n1]  CHCS is organized into eight "service lines," such as "Primary Care," "Pharmacy," and "Information Management[,]" some of which encompass employees of both the West Haven and Newington faculties. Id. at 6. The RD also noted undisputed statements in the record indicating that, after the reorganization, employee orientation and training was conducted at West Haven for both facilities, vacancy announcements were posted at both locations, and employees assigned to both facilities "have to travel to the other campus as part of their job duties" and "[o]ccasionally, . . . have to travel between campuses on a temporary basis to fill in for absent employees." Id. at 5-6.

      The RD determined that the NAGE bargaining unit employees are covered by a 2003 master collective bargaining agreement. He also noted that since the reorganization, NAGE Local R1-109, the union's local agent at Newington, has been involved in seven negotiability disputes or bargaining impasses with the Agency that resulted in reported decisions. In addition, the RD found that since 2003, NAGE Local R1-109 had negotiated with the Agency on a variety of matters, had filed 21 Union grievances, had invoked arbitration on 7 grievances, and had filed 40 unfair labor practice charges with the Authority.

      AFGE filed the petition at issue in this case in August 2005, asserting that the Newington employees represented by NAGE should be included in its West Haven unit because they had accreted into the unit after the 1995 reorganization. Alternatively, AFGE argued that CHCS was a successor employer and that AFGE was sufficiently predominant in the new organization that it should be certified as the representative without an election. NAGE argued that its Newington bargaining unit remained an appropriate unit. The RD also construed NAGE's opposition to AFGE's petition as "essentially arguing" that, assuming CHCS was found to be a successor employer, the Newington facility continues to comprise a separate appropriate unit within CHCS and that NAGE continues to represent the employees in that unit. Decision at 11-12. The RD ordered the parties to show cause why the petition should not be dismissed, determined that a hearing was not necessary, and issued a decision and order based on the parties' responses to the order and the evidence that they supplied.

      The RD applied the analytical framework for assessing competing claims of successorship and accretion arising from agency reorganizations set out by the Authority in United States Dep't of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328, 331-32 (2000) (COMNAVBASE) and United States Dep't of the Navy, Fleet and Industrial Supply Center, Norfolk, Va., 52 FLRA 950, 954 (1997) (FISC). Evaluating the bargaining unit status of the Newington employees included in AFGE's petition, the RD determined that the appropriate unit that would most fully preserve the status quo in terms of unit structure would be a separate unit of employees at Newington, included in the NAGE consolidated unit, with CHCS as the successor employer. He therefore first evaluated the appropriateness of that unit.

      Applying the FISC successorship framework, 52 FLRA at 958-59, the RD found that the Newington employees were "transferred" in the 1995 reorganization from the disestablished Newington VA Hospital to CHCS. Decision at 13. The RD next addressed whether the changes resulting from the integration of the Newington and West Haven facilities were sufficient to eliminate the appropriateness of the NAGE bargaining unit, applying the three appropriate unit criteria mandated by § 7112(a) of the Federal Service Labor-Management Relations Statute (Statute). [n2]  [ v61 p866 ]

      With respect to the first criterion -- community of interest -- the RD found that the Newington facility was a separate facility with more limited services than the West Haven facility. While noting that some employees had been detailed between the two facilities, the RD also found that the NAGE unit employees generally perform their work at the Newington facility. He concluded that these circumstances indicated that the concerns of the Newington employees "are likely to be distinct" from those of the West Haven employees. Id. at 14. Further, the RD found that NAGE's representational activity on behalf of these employees, both at the national and local level, was a factor favoring a finding of a separate community of interest. He found that this outweighed the countervailing factor that that Newington and West Haven employees are under the same service line organizations and administration. The RD thus concluded that the Newington employees continued to share a community of interest.

      The RD next found that the second and third appropriate unit criteria were met. He concluded that the separate unit of Newington employees would promote effective dealings based the history of successful bargaining between NAGE and the Agency, both over the course of 30 years and during the 10 years following the reorganization. With respect to the efficiency of operations, the RD found that the Agency had maintained the Newington facility as a separate structure, that it had continued to bargain with NAGE at that facility since the reorganization, and that there was no showing that there would be "cost savings, increased productivity or more efficient allocation of resources" if the Newington employees were to be represented by AFGE in a single CHCS unit. Decision at 16.

      Having concluded that a separate unit of Newington facility employees continued to be appropriate after the reorganization, the RD dismissed AFGE's petition.

III.      Positions of the Parties

      AFGE argues that the RD failed to apply established law when he ruled on the appropriateness of the separate unit of Newington facility employees, rather than the unit of combined Newington and West Haven employees sought by AFGE. In this regard, AFGE argues that COMNAVBASE mandates that only "petitioned-for" units be considered and that neither NAGE nor the Agency filed a petition requesting the unit evaluated by the RD. Application at 22 (quoting COMNAVBASE, 56 FLRA at 331). Further, AFGE argues that it provided sufficient evidence that the unit it requested was an appropriate successor unit.

      AFGE next asserts that the RD committed factual error when he construed NAGE's position as arguing that the Newington employees constitute a separate appropriate unit with CHCS as the successor employer. AFGE claims that NAGE's actual position opposed a finding that CHCS was the successor employer.

      Turning to the RD's evaluation of the appropriateness of the separate Newington bargaining unit, AFGE contends that the RD erred in applying the statutory criteria to this bargaining unit. With respect to community of interest, AFGE argues that the uncontested facts support a finding that the Newington employees do not have a separate community of interest. In this regard, AFGE relies on the facts that all CHCS employees have a single director, the same budget, and a unified personnel and labor relations office. In addition, AFGE notes that employee orientation and training are performed for all employees at West Haven, that vacancy announcements are posted system-wide, that employees travel between Newington and West Haven as part of their job duties, and that one service was temporarily relocated from West Haven to Newington due to construction. According to AFGE, the factors relied on by the RD -- differences between the operation of the two facilities and the geographic separation of the employees -- are not significant employment concerns distinguishing the Newington and West Haven employees. Further, AFGE argues that the factors relied on by the RD do not outweigh the evidence that these employees are operationally and organizationally integrated with other employees.

      With respect to whether the separate Newington bargaining unit would promote effective dealings between the exclusive representative and the Agency and would promote efficiency of operations, AFGE argues that labor relations policy for CHCS is set at the West Haven facility for all CHCS employees and that no one at the Newington facility has the authority to establish policies or working conditions. Further, AFGE contends that the volume of labor relations activity undertaken by NAGE at Newington does not establish that these dealings have been effective. AFGE also asserts that a separate Newington unit does not bear a rational relationship to the organizational structure of the Agency because it ignores the integration of the two facilities and the interchange among employees. Finally, AFGE claims that the RD erred in evaluating the efficiency of the unit proposed by AFGE, rather than the separate Newington unit.

      As a general matter, AFGE argues that the RD erred in failing to make an "affirmative determination" that the separate Newington bargaining unit satisfied the [ v61 p867 ] three appropriate unit criteria. In this regard, AFGE relies on the RD's conclusion that the concerns of the NAGE employees are "likely" to be distinct, and that the relocation of the personnel office had "evidently" not limited the parties ability to deal effectively. Application at 34 (quoting decision at 14, 15). AFGE also objects to the RD's reliance on the separate Newington location, arguing that having a separate unit for the separate location will result in their "isolation" from other CHCS employees and "fragments the Newington employees" from the CHCS structure. Id. at 35.

      AFGE next contends that the RD gave improper weight to bargaining history between NAGE and the Agency and that this resulted in the RD not giving equal weight to the three appropriate unit criteria. In particular, AFGE argues that the RD erred in finding that the bargaining history outweighed all of the evidence of integration that AFGE submitted. AFGE also asserts that the RD's reliance on bargaining history promotes fragmentation of the bargaining structure.

      Finally, AFGE asserts that the RD's refusal to hold a hearing failed to apply established law and was a prejudicial procedural error. According to AFGE, a hearing was required by § 7111(b)(2) of the Statute and the Authority's regulations. [n3]  In this regard, AFGE asserts that the RD should have resolved factual issues concerning the appropriateness of AFGE's petitioned-for unit, the appropriateness of the AFGE unit at West Haven after the reorganization, and whether the unit of Newington employees promotes effective dealing and efficiency of agency operations. Further, AFGE argues that the RD erred in determining a hearing was warranted, issuing a notice of hearing, and then dismissing the case without holding the hearing. In addition, AFGE argues that there is no justifiable reason not to hold a hearing in a complex case of this type and that, if the RD's refusal to hold a hearing is consistent with Authority precedent, then such precedent warrants reconsideration. Finally, AFGE argues that the RD abused his discretion in refusing to hold a hearing because he did not develop a complete evidentiary record and actively solicit evidence from the parties, leading him to commit errors.

      As noted above, neither NAGE nor the Agency filed an opposition to AFGE's application for review.

IV.     Analysis and Conclusions

A.      AFGE has not established that the RD committed a clear and prejudicial factual error.

      The Authority's regulations provide that an application for review may be granted where an RD has "[c]ommitted a clear and prejudicial error concerning a substantial factual matter." 5 C.F.R. § 2422.31(c)(3)(iii). AFGE argues that the RD committed a factual error when he construed NAGE's position as arguing the Newington employees comprised a separate bargaining unit with CHCS as the successor employer because NAGE in fact opposed such an argument.

      Before the RD, NAGE made the following argument:

[T]he evidence of consolidation offered by AFGE suggests that the West Haven facility is the employer rather than the Connecticut Healthcare System. NAGE opposes the argument that the healthcare system is the employer. The integration is supposedly between two facilities, and the FLRA is being asked to determine that West Haven is the predominant facility. The FLRA may just as validly determine that different unions at different facilities remain appropriate.

Attachment 12, NAGE Position Statement at 2. In context, it is apparent that NAGE sought to retain its separate bargaining unit at the Newington facility, and that its "opposition" to CHCS as the "employer" merely opposed the merger of the Newington bargaining unit into a unit including both West Haven and Newington. Thus, the RD did not err in construing NAGE's position as arguing for a separate Newington bargaining unit within CHCS if CHCS was determined to be a successor employer.

B.      AFGE has not established that the RD failed to apply established law.

1.      The RD's application of the Authority's COMNAVBASE standard

      In COMNAVBASE, the Authority set out the following standard for addressing competing claims of successorship that arise after an agency reorganization:

[W]hen we are presented with competing successorship claims alleging different appropriate [ v61 p868 ] units, 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. See [Dep't of the Navy, Naval Supply Center, Puget Sound,] Bremerton, [Wa.] 53 FLRA 173, 183 n.9 [(1997) (Bremerton)].

56 FLRA at 332.

      AFGE argues that, under this standard, the RD should not have considered whether the existing Newington bargaining unit remained appropriate as a separate unit because neither NAGE nor the Agency filed a petition seeking this unit, and it was thus not a "petitioned-for" unit for the purposes of COMNAVBASE. Application at 22.

      While AFGE's argument is consistent with a literal reading of COMNAVBASE, that decision considered conflicting petitions filed by an agency and union; it did not address any obligations of an incumbent union that seeks to retain its existing bargaining unit, as NAGE does in this case. Moreover, nothing in the Authority's regulations or case law indicates that an incumbent union is required to file a petition to defend its existing bargaining unit from a petition filed by a rival union seeking to represent those employees. In this regard, an incumbent union has automatic party status under § 2422.8(d) of the Authority's regulations, as the RD notified NAGE in this case. See Attachment 2, letter from RD to NAGE (Aug. 13, 2005); see also United States Dep't of the Interior, Nat'l Park Serv., 55 FLRA 466, 468 (1999). In this case, NAGE fully participated in the proceedings, appointing a Senior Counsel from its headquarters as its representative and filing a statement of position arguing that its Newington unit "remains appropriate" and that AFGE's petition "must be dismissed." Attachment 12, NAGE Position Statement at 2, 3. NAGE also filed an opposition to a motion to transfer the case filed by AFGE and participated in a conference with the parties conducted by the RD. No purpose would be served by requiring NAGE to also file a petition indicating that it desired to maintain its existing unit.

      The Authority has routinely considered the continued appropriateness of existing bargaining units without requiring incumbent unions to file separate petitions. See United Stated Dep't of the Navy, Naval District Washington, 60 FLRA 469, 471-72 (2004) (Naval District Washington) (considering appropriateness of existing IAM bargaining unit that was not petitioned for); Dep't of the Navy, Naval Supply Center, Puget Sound, Bremmerton, Wash., 53 FLRA 173 (1997) (same with respect to AFGE, Local 1931 bargaining unit); Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Oh., 53 FLRA 1114, 1122-32 (1998) (DLA, Columbus) (same with respect to IFPTE bargaining unit). There is no indication that COMNAVBASE intended to change this practice and the fact that Naval District Washington was issued subsequent to COMNAVBASE indicates that the practice has not been revised. Further, AFGE has provided no reason why an incumbent union should be required to take this procedural step.

      Thus, the Authority concludes that that review is not warranted on the ground that the RD erred in applying established law by considering the appropriateness of the separate NAGE unit. To the extent that the decision in COMNAVBASE suggests that an incumbent union must file a petition to make an argument that its existing bargaining unit remains appropriate, we clarify that a petition is not required in this circumstance.

2.      The RD's evaluation of the appropriateness of the separate Newington bargaining unit

      Under § 7112(a) of the Statute, a unit may be determined to be appropriate only if it will: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings in the agency involved; and (3) promote efficiency of the operations of the agency involved. See fn. 3, supra. In making determinations under § 7112(a), the Authority has set out relevant factors for each of the three criteria and examines the factors presented on a case-by-case basis, but has not specified the weight of individual factors or the particular number of factors necessary to establish an appropriate unit. See FISC, 52 FLRA at 960-62; DLA, Columbus, 53 FLRA at 1127. In determining whether a unit remains appropriate after an agency reorganization, the Authority focuses on the specific changes caused by the reorganization. COMNAVBASE, 56 FLRA at 332.

      As the Authority has explained, "[t]he fundamental premise of the first criterion--that employees share a clear and identifiable community of interest--is to ensure that it is `possible for them to deal collectively [with management] as a single group.'" FISC, 52 FLRA at 960 (quoting Dep't of Transportation, Fed. Aviation Admin., Southwest Region, Tulsa Airway Facilities Sector, [ v61 p869 ] 3 FLRC 235, 239 (1975)). The Authority examines such factors as whether the employees in the proposed unit are a part of the same organizational component of the agency; support the same mission; are subject to the same chain of command; have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same personnel office. Id. at 960-61. In addition, factors such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation may be relevant. Id.

      The RD found that the changes in the Agency's operations arising from the reorganization were not significant enough to eliminate the established community of interest of the employees at the Newington facility. AFGE contends that the factors it relied on, including the centralization of management and administrative functions for the two facilities, the fact that hiring, orientation, and training are done for all employees together, and that employees sometimes travel between the two facilities outweigh the factors relied on by the RD. However, AFGE does not explain why the fact that there is more administrative centralization between the Newington and West Haven facilities necessarily outweighs the facts relied on by the RD. These facts include the geographic separation of the two groups of employees and that the Newington employees remain subject to the same overall chain of command and have the have same working conditions and duties. Further, in arguing that the factors it relies on outweigh those relied on by the RD, AFGE ignores the "fundamental premise" of the community of interest criteria set out above: the ability to deal collectively with management. FISC, 52 FLRA at 960. The RD's reliance on the fact that the Newington bargaining unit has successfully negotiated with the Agency over local conditions of employment is consistent with this fundamental premise. AFGE has thus not established that the RD erred in finding that the Newington employees shared a community of interest.

      The criterion of effective dealings "pertains to the relationship between management and the exclusive representative selected by unit employees" and the criteria of efficiency of operations concerns the "benefits to be derived from a unit structure which bears some rational relationship to the operational and organizational structure of the agency." Id. at 961. AFGE claims that the RD erred in assessing these criteria because the labor relations policy for all of CHCS is set at West Haven, not Newington, and because the volume of labor relations activity conducted by NAGE at Newington has not necessarily been effective. However, the facts relied on by AFGE ignore the important considerations that, in the 10 years between the consolidation and the filing of AFGE's petition, both the NAGE consolidated unit and NAGE Local R-109 bargained and reached agreement with the Agency and that NAGE and the Agency have a 30-year history of bargaining. Similarly, AFGE's focus on the fact that there is one CHCS labor relations office for both West Haven and Newington ignores the fact that both the West Haven and Newington employees are in consolidated bargaining units and, as a result, bargaining over the term agreements does not take place at the local level.

      AFGE also claims that the RD erred generally by failing to make "affirmative determinations" concerning the three appropriate unit criteria and by giving improper weight to the bargaining history between NAGE and the Agency. With respect to the first point, the RD made specific determinations with respect to each of the three criteria and the fact that some of the RD's conclusion were qualified by such terms as "likely" and "evidently" does not detract from the specificity of these findings. With respect to the second point, under appropriate circumstances, the Authority has considered a long history of bargaining to be an important consideration in evaluating each of the three criterion. See DLA, Columbus, 53 FLRA at 1129-32. Thus, AFGE has not established that the RD erred in this regard.

      In sum, AFGE has not established that review is warranted because the RD failed to apply established law.

C.      AFGE has not established that the RD's decision not to hold a hearing failed to apply established law and was a prejudicial procedural error.

      Under Section § 2422.30(b) of the Authority's regulations, an RD "will issue a notice of hearing to inquire into any matter about which a material issue of fact exists, and any time there is a reasonable cause to believe a question exists regarding unit appropriateness." See also 5 U.S.C. § 7111(b) ("if [the Authority] has reasonable cause to believe that a question of representation exists, it shall provide an opportunity for a hearing"). Interpreting these provisions, the Authority has held that RDs have "broad discretion" to determine whether a hearing is necessary. United States Environmental Protection Agency, 61 FLRA 417, 420 (2005), recons. denied, 61 FLRA 806 (2006) (EPA); see Federal Mediation and Conciliation Service, [ v61 p870 ] 52 FLRA 1509, 1516 (1997) (FMCS). In particular, "the RD may determine, on the basis of the investigation . . . that `there are sufficient facts not in dispute to form the basis for a decision or that, even where some facts are in dispute, the record contains sufficient evidence on which to base a decision.'" FMCS, 52 FLRA at 1516 (quoting United States Dep't of Agriculture, Forest Serv., Apache-Sitgreaves Nat'l Forest, Springerville, Ariz., 47 FLRA 945, 952 (1993) (Dep't of Agriculture).

      AFGE argues that the RD erred in refusing to hold a hearing in this case because there were three questions of fact not resolved by the RD: (1) the appropriateness of AFGE's petitioned-for bargaining unit, (2) the appropriateness of the AFGE bargaining unit at West Haven, and (3) whether the bargaining unit of Newington employees promotes effective dealings and the efficiency of Agency operations. With respect to the first of these questions, once the RD determined that the existing separate Newington bargaining unit remained appropriate, it was unnecessary for him evaluate the appropriateness of AFGE's petitioned-for unit. Decision at 12, 16. With respect to the second issue, as no party challenged the appropriateness of AFGE's existing unit at West Haven, there was no reason for the RD to address this issue. With respect to the third matter raised by AFGE, the RD did make specific determinations with respect to the effective dealings and the efficiency criteria, as explained above. See Decision at 15-16.

      AFGE also notes that the RD initially issued a notice of hearing in this case and then determined, after an investigation, that no hearing was necessary. AFGE asserts that, once the hearing was ordered, the RD lacked the discretion to resolve the case without a hearing. The Authority recently addressed this issue, holding that an RD does not commit prejudicial procedural error under the Authority's regulations where, after conducting an investigation, the RD determines that a hearing that was initially ordered is not necessary. EPA, 61 FLRA at 420. While AFGE relies on § 7111(b) of the Statute in addition to the Authority's regulations at issue in EPA, it provides no reason why the RD does not have similar discretion under § 7111(b) of the Statute, once the RD has conducted an investigation.