United States Department of the Army, Army Materiel Command, Headquarters, Joint Munitions Command, Rock Island, Illinois (Activity/Petitioner) and United States Department of the Army, Army Materiel Command, Headquarters, Army Sustainment Command, Rock Island, Illinois (Activity/Petitioner) and American Federation of Government Employees, Local 15, AFL-CIO (Exclusive Representative/Union)
[ v62 p313 ]
62 FLRA No. 55
DEPARTMENT OF THE ARMY
ARMY MATERIEL COMMAND
ROCK ISLAND, ILLINOIS
DEPARTMENT OF THE ARMY
ARMY MATERIEL COMMAND
ROCK ISLAND, ILLINOIS
OF GOVERNMENT EMPLOYEES
LOCAL 15, AFL-CIO
DECISION AND ORDER
December 14, 2007
Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1]
I. Statement of the Case
This case is before the Authority on an application for review of the Regional Director's (RD's) decision filed by the Union under § 2422.31 of the Authority's Regulations. [n2] The Army Sustainment Command (ASC) and Joint Munitions Command (JMC) (Petitioners) filed an opposition to the Union's application.
The United States Army Materiel Command (AMC) underwent a reorganization that changed the JMC from a subordinate organizational component of the ASC to an independent major subordinate command equal in organizational status to the ASC. RD's Decision at 1-3. Prior to the reorganization, as relevant here, the Petitioners filed a petition seeking to clarify the existing bargaining unit, given the reorganization. Petitioners' Petition; RD's Decision at 2. The parties entered into a stipulation of fact in lieu of a hearing. RD's Decision at 2. The RD ordered that the Union be certified as the exclusive representative for two separate bargaining units, one for ASC employees, and one for JMC employees.
As explained below, we grant the application for review on the ground that there is a genuine issue over whether the RD failed to apply established law pursuant to 5 C.F.R. § 2422.31(c)(3)(i) and we remand this matter to the RD for further action consistent with this decision.
II. Background and RD's Decision
The Union is the certified exclusive representative of a bargaining unit of professional and nonprofessional employees within the ASC and the JMC. RD's Decision at 2. After the reorganization, the Petitioners sought to split the existing single bargaining unit of Petitioners' employees into two separate units. Id. The Union maintained that the single bargaining unit representing the Petitioners' employees remained appropriate. Id.
The AMC is responsible for providing technology, equipment, and "military sustainment" for the military. Id. The AMC operates through ten separate military subordinate commands which are headed by individual Commanding Generals who report directly to the AMC. Id. The ASC is a major subordinate command of the AMC. Id. The ASC's mission did not change after the reorganization and is to "provide combat and combat service support force augmentation to combat commanders." [ v62 p314 ] Id. at 2-3. The reorganization transformed the JMC from a subordinate organizational component of the ASC to a major subordinate command of the AMC. Id. at 3. Like the ASC, the JMC's mission since the reorganization has remained the same and is, primarily, to "manufacture, procure, store, issue and demilitarize conventional ammunition for all U.S. military services and selected customers outside the Department of Defense." Id.
The reorganization affected the process by which the Petitioners issue and execute personnel and labor management relations policies. In this regard, prior to the reorganization, the Petitioners shared staff offices for their human resources, EEO, and labor-management programs, among others. Since the reorganization, the Petitioners have formed their own staff offices for such programs. Id. at 4. Consequently, the Petitioners have begun issuing separate personnel policies that only apply to their respective organizations and they have also begun negotiating separate agreements with the Union. Id. For example, the Petitioners negotiated separate agreements with the Union pertaining to the procedures by which each organization would exercise its authority to offer buyouts during fiscal year 2007. Id. The JMC also worked independent of the ASC with the Union concerning issues with the JMC's recruitment process and staffing requirements. Id. After the reorganization, the JMC and the Union chartered a Labor Management Partnership Council independent of the ASC, although the Union withdrew six months after its inception. Id. The Petitioners have also separately notified the Union of their individual intentions to open negotiations to create new and separate collective bargaining agreements. Id. Additionally, the Petitioners' managers and supervisors now contact their respective designated ombudsman when assistance is needed in dealing with an employee or the Union on labor relations matters, instead of going through the same ombudsman. Id. The Petitioners also sought, and were granted, separate competitive areas for reduction-in-force (RIF) purposes. Id. However, notwithstanding these structural changes, the Petitioners continue to receive "personnel servicing" from the same place (i.e., the Army's Rock Island Civilian Personnel Advisory Center (CPAC) and the North Central Civilian Personnel Operations Center). Id. at 3.
Following the reorganization, the Petitioners' employees continue to share an integrated work space. Id. at 4-5. A prospective relocation plan will place Petitioners' employees together sharing two floors of an office building, where 56 members of the ASC Acquisition Center will be co-located with the JMC Commodity Team so that the two teams can continue to work together. Id. Although the work setting will be integrated and employees from both the Petitioners will be involved in collaborative projects, the employees will be governed by their respective organizations' policies and procedures. Id. at 5.
B. RD's Decision
In determining whether to grant the Petitioner's petition for separate bargaining units, the RD relied on Authority precedent used in determining bargaining unit appropriateness after a reorganization. RD's Decision at 6. The RD analyzed the changes caused by the reorganization and whether those changes were sufficient to render the existing unit inappropriate under the Federal Service Labor-Management Relations Statute (the Statute) as required by United States Department of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328, 332 (2000) (Naval Base, Norfolk). In so doing, the RD considered whether the existing unit: (1) ensured a clear and identifiable community of interest among the employees in the unit; (2) promoted effective dealings with the agency and; (3) promoted efficiency of the operation of the agency. RD's Decision at 6 (citing 5 U.S.C. § 7112(a); United States Dep't of the Army, Military Traffic Mgmt. Command, Alexandria, Va., 60 FLRA 390, 394 (2004) (Army) (citing United States Dep't of the Air Force, Lackland Air Force Base, San Antonio, Tex., 59 FLRA 739, 741 (2004))). Citing Naval Base, Norfolk, the RD also recognized that a chain of command change, by itself, does not render an existing unit inappropriate, but rather ought to be considered in light of the three criteria set forth in § 7112(a) of the Statute. Id.; Naval Base, Norfolk, 56 FLRA at 332-33.
With regard to the first § 7112(a) factor, the RD noted that the fundamental premise of determining whether a community of interest exists among employees is to ensure that it is possible for employees to deal collectively with management as a single group. RD's Decision at 6 (citing United States Dep't of the Navy, Fleet & Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 960-61 (1997) (FISC)). In concluding that the Petitioners' employees no longer share a clear and identifiable community of interest, the RD found that, as a result of the reorganization, the Petitioners' employees are no longer part of the same organizational component of ASC employees. Id. at 6. Further, the RD determined that Petitioners' employees have been "organizationally separated into different and independent organizations, each with its own distinct mission, budget, and separate and independent chains of supervision and command reporting to two different Commanding Generals." Id. [ v62 p315 ] at 6. In addition, the RD found that the Petitioners have separate personnel and labor relations policies established by their respective management officials who hold independent bargaining authority. Id. at 6-7. Although noting that the Petitioners' employees share similar working conditions, work in the same building, and interact with one another, the RD found that those factors "do not outweigh the significant and extensive differences between the two groups." Id. at 7, n.2.
With regard to the second § 7112(a) factor, the RD found that the existing single unit does not promote effective dealings, and that "both the ASC and JMC have separate and independent bargaining authority and negotiators" and "separate and independent authority to establish their own personnel and labor relations policies." Id. Additionally, the RD noted that the Petitioners "have conducted separate dealings and negotiations with the Union" that "were not shown to be ineffective." Id.
With regard to the third § 7112(a) factor, the RD found that the existing unit of employees does not promote the efficiency of Agency operations. In this regard, the RD concluded that the Petitioners are "wholly independent and separate organizations," and that, "[g]iven the operational and organizational separation between the ASC and JMC, the existing unit no longer bears a rational relationship to either organization." Id. at 8.
Based on the foregoing, the RD determined that the existing unit was not appropriate under § 7112(a) of the Statute. Id. The RD then determined that separate units would promote a community of interest, effective dealings, and the efficiency of operations because the employees within their respective units would be subjected to the same missions and chains of command, and the units would be "co-extensive with their respective activity's organizational structure and both exist at the level where personnel and labor relations policies are established." Id. The RD also concluded that two units would be appropriate because the Petitioners have successfully conducted separate dealings and negotiations as individual entities. Id. Thus, the RD ordered that the Union be certified as the exclusive representative for separate ASC and JMC bargaining units.
III. Positions of the Parties
The Union requests review on the ground that the RD failed to apply established law in finding that the existing unit is no longer appropriate. Application for Review at 2-3, 8. The Union also requests review on the grounds that the RD made a clear and prejudicial error concerning a substantial factual matter, and that there is an absence of Authority precedent. Id.
With respect to its first claim, the Union argues that the RD failed to apply Naval Base, Norfolk, in which the Authority held that a change in chain of command, by itself, does not render an existing unit inappropriate. Id. at 3, 17. The Union argues that, instead of concluding that the existing unit was inappropriate because of the change in chain of command, the RD should have considered whether all of the changes resulting from the reorganization significantly affected the three statutory factors considered in determining whether a bargaining unit is appropriate. Id. at 18-19.
Additionally, the Union claims that the RD did not properly apply each of the § 7112(a) factors in determining that the existing bargaining unit was no longer appropriate. Specifically, the Union argues that the ASC and JMC employees still share a community of interest because, after the reorganization, they still remain part of the AMC, support the same mission, operate under the same separate budgets, and are subject to the chain of command of the Army and AMC. Id. at 6-7, 9-10. The Union also contends that the RD erred in finding that Petitioners' employees are subject to separate personnel and labor relations policies, arguing that these decisions are still centrally processed at CPAC, which handles many of the personnel and labor relations functions for both the of the Petitioners. Id. at 7, 12. Additionally, the Union argues that the RD erred in failing to consider that Petitioners' employees still share "identical job classifications." Id. at 12. The Union alleges that the Petitioners' employees have an interest in negotiating with management together, since they share the same working conditions and have a successful collective bargaining history. Id. at 14-15. In sum, the Union argues that the only real change after the reorganization is that the JMC now has its own Commanding General and that, instead of reporting to the AMC through the ASC Commander, the JMC Commander now reports directly to the AMC. Id. at 13, 18.
The Union further asserts that the RD made errors of fact in determining that the existing bargaining unit does not promote effective dealings with the agency. Id. at 15. Specifically, the Union claims that the existing single unit promotes effective dealings because Petitioners' employees share the same working conditions, and are subject to similar circumstances giving rise to the need for collective bargaining, which, in the past, has been conducted successfully. Id. at 15, 20. In this regard, the Union notes that the Authority is "reluctant to disturb longstanding bargaining units when bargaining [ v62 p316 ] in those units has been successful." Id. at 8 (citing Defense Logistics Agency, Defense Supply Ctr. Columbus, Columbus Ohio, 53 FLRA 1114, 1122-23) (1998) (DLA Columbus)).
The Union also contends that two bargaining units would not provide for efficient operations, as the two units would have to bargain separately with two sets of management over the same issues and the same Agency-wide and local policy changes having a substantially equivalent effect on both groups of employees located in the same work areas and engaging in similar activities. Id. at 15-16, 20. This, the Union argues, is a less effective bargaining structure, requiring "an increase of official government time to support each of the new units, as well as an increase of overall costs to the [g]overnment." Id. at 19-20. The Union also claims that two separate units could create different rules for the Petitioners' employees who share the same work space, thus providing for inequitable treatment of employees performing similar work. Id. at 20, 22. The Union argues that such circumstances provide for less efficient and more costly negotiations. Id. at 20.
As a preliminary matter, the Petitioners claim that the parties verbally agreed that the RD would decide the case based on the written record and stipulation of fact in lieu of a hearing, and that in coming to this agreement, the parties agreed to waive their rights to appeal the RD's decision. Petitioner's Opposition at 2. Thus, the Petitioners argue that the Authority should not consider the Union's application for review, as the Union does not have the right to file the appeal, given the Union's verbal agreement to waive its appeal rights. Id.
On the merits, under the first statutory factor, the Petitioners argue that the Petitioners' employees do not share a community of interest because the two organizations are in separate and distinct major subordinate commands and each organization has its own distinct mission, function, budget, and separate and independent chains of supervision and command. Id. at 3-4. The Petitioners emphasize that, in the future, the ASC will be gaining new employees to execute missions involving "materiel management, which is a phase of military logistics that includes managing, cataloging, disposal, procurement, distribution, overhaul and determination of material requirements." Id. at 5. The Petitioners also assert that there is no community of interest among Petitioners' employees because the two organizations now have distinct personnel, labor relations, and human resources policies and procedures. Id. at 5-7. The Petitioners contend that CPAC "has no delegated Labor Relations authority to negotiate changes to any personnel policy, practice or procedure or to settle Union/Management disputes," and that, even though the Petitioners receive personnel and labor relations advice and policies from the same human resources office as prior to the reorganization (i.e., the "G1 office"), the two organizations now receive that information from two separate "directorates" within that office. Id. at 7, 6. The Petitioners also state that since the reorganization, the Union has followed the Petitioners' instituted procedure in addressing these matters with the respective entities set up by the two organizations. Id. at 7.
With regard to the second § 7112(a) factor -- whether the existing unit promotes effective dealings with the agency -- the Petitioners allege that they have changed the process by which the entities negotiate with the Union to promote effective dealings in accordance with the changes enacted under the reorganization. Id. In this regard, the Petitioners argue that, although they commonly engage in joint negotiations with the Union, they each now have independent authority to establish their own personnel and labor relations policies in order to negotiate effectively. Id. at 8. The Petitioners contend that, while the existing single unit has bargained successfully on behalf of Petitioners' employees in the past, as a result of the reorganization, two separate units would be more effective. Id.
Lastly, with regard to the third § 7112(a) factor -- whether an existing unit promotes the efficiency of the agency's operations -- the Petitioners assert that the existing unit will not efficiently handle the issues arising from the varying missions, strategies and policies of the two organizations. Id. Specifically, the Petitioners argue that the working conditions under the two organizations are so different that time and money would be wasted conducting protracted negotiations in an attempt to resolve issues arising from such different working conditions. Id. The Petitioners claim that two bargaining units are more efficient because the two units can focus on the individual needs arising out of the varying working conditions at the ASC and JMC. Id.
IV. Analysis and Conclusions
A. The Record Does Not Establish That the Union Waived its Right to Appeal the RD's Decision.
The Authority has held that in order to be effective, a party's waiver of its right to invoke the Authority's processes must be clear and unmistakable. United States Dep't. of the Navy Mid-Atlantic Regional Maintenance Ctr. Norfolk, Va., 61 FLRA 530, 531 (2006).
[ v62 p317 ] Applying this standard here, we conclude that the Petitioners have not established that the Union has waived its right to file an application for review of the RD's Decision to the Authority. Specifically, the Petitioners have not relied on any evidence in the record or requested that the record be supplemented by additional evidence that supports their assertion that the parties entered into agreement during a telephone call, waiving their rights to file an application for review. In this regard, the parties have an obligation to include a summary of evidence relating to any issue raised in the application. See 5 C.F.R. 2422.31(b) and (d). Moreover, contrary to the Petitioners' contention that the parties' waived their appeal rights, the RD's Decision specifically provides for the parties' right to file an application for review with the Authority. RD's Decision at 9. Thus, due to the lack of any evidence indicating that the parties waived their appeal rights, the Petitioners have failed to show that the Union is precluded from filing its application for review under § 2422.31 of the Authority's Regulations. Accordingly, we find that the application for review is properly before the Authority.
B. A Remand is Necessary to Resolve the Petition.
In determining whether an existing unit remains appropriate after a reorganization, the Authority focuses on the changes caused by the reorganization, see Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, N.C., 45 FLRA 281, 286 (1992), and assesses whether those changes are sufficient to render a recognized unit inappropriate. See DLA Columbus, 53 FLRA at 1122-23. Where there are claims alleging different appropriate units, the Authority 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. Naval Base, Norfolk, 56 FLRA at 332. This rule stems from the Authority's reluctance to disturb long standing bargaining units when bargaining in those units has been successful. DLA Columbus, 53 FLRA at 1124. Further, the Authority has held that there is a preference in the Statute for preventing unit fragmentation when an existing unit otherwise remains appropriate. Naval Base, Norfolk, 56 FLRA at 332; see also United States Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 55 FLRA 359, 361 (1999) (Wright-Patterson); Library of Congress and Fraternal Order of Police, Library of Congress Police Force Labor Committee, 16 FLRA 429, 431 (1984).
To determine whether a unit is appropriate under § 7112(a) of the Statute, the Authority considers whether the unit would: (1) ensure a clear and identifiable community of interest among employees in the unit; (2) promote effective dealings with the agency involved; and (3) promote efficiency of the operations of the agency involved. See FISC, 52 FLRA at 959-62. A proposed unit must meet all three criteria in order to be found appropriate. Army, 60 FLRA at 394. Determinations as to each of these criteria are made on a case-by-case basis. Id. The Authority has set out factors for assessing each criterion, but has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. Id.
Addressing the statutory criteria, we find, for the reasons that follow, that the RD's decision does not support a determination that the previous unit was rendered inappropriate by the reorganization. We also find that the RD failed to consider Authority precedent, set forth above, indicating a preference for preserving long standing bargaining units and avoiding unit fragmentation. Finally, the stipulation does not permit the Authority to make the determinations necessary to resolve the petition. Accordingly, the petition is remanded to the RD for further action.
1. Community of Interest
With regard to the first appropriate unit criterion -- whether employees share a clear and identifiable community of interest -- 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. See FISC, 52 FLRA at 960-61 (citations omitted). 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. See id. at 961. As set forth above, the fundamental premise of determining whether a community of interest exists among employees is to ensure that it is possible for employees to deal collectively with management as a single group. Id. at 960-61.
[ v62 p318 ] In concluding that employees in the existing unit no longer share a community of interest, the RD found that, after the reorganization, affected employees were organizationally divided into distinct components with separate budgets, missions, chains of command, and competitive areas. However, as noted above, the Authority has held that a change in chain of command, by itself, does not render an existing unit inappropriate, but rather is considered in light of the three criteria set forth in § 7112(a) of the Statute. Naval Base, Norfolk, 56 FLRA at 332-33. Similarly, while ASC and JMC unit employees are subject to separate competitive areas for RIF purposes, the existence of separate competitive areas for such purposes, like any other factor in evaluating community of interest, is not dispositive in resolving that issue. See AFGE, Local 2004, 47 FLRA 969, 972 (1993) (factors which employees did not have in common, such as RIF competitive area, do not undermine the RD's determination that a community of interest exists).
In addition, the RD noted, but did not weigh, the fact that the Petitioners' missions and budgets did not change after reorganization. See Union's Application for Review at 10 (claiming that the Petitioners have always operated under separate missions and budgets); Petitioner's Opposition at 5 (acknowledging the Petitioners have separate missions and budgets but not responding to the Union's argument that this constitutes the status quo); RD's Decision at 6 (finding that, as a result of the reorganization, the Petitioners have distinct components, budgets, missions, and chains of commands). Additionally, although the RD also considered how the reorganization changed the procedure by which labor relations and personnel policies are administered, he did not evaluate whether, in practice, this change affected Petitioners' employees. See Wright-Patterson, 55 FLRA at 363 (citing Army and Air Force Exchange Service, Dallas, Tex., 5 FLRA 657, 661 (1981)) (Authority assessed whether employees work under similar labor and personnel policies when evaluating whether such policies favor consolidation). Finally, although the RD noted the Union's argument that the Petitioners' employees shared work space and working conditions, he made no findings on these matters, finding only that they "do not outweigh the significant and extensive differences between the two groups." Decision at 7, n.2.
Moreover, the stipulation does not permit the Authority to resolve these issues. With regard to community of interest, the parties' stipulation provides that there was a reorganization, and that the Petitioners are now independent Major Subordinate Commands with separate missions and competitive areas. Parties' Stipulation ¶¶ 7, 10, 18. The stipulation also provides that, although the Petitioners still receive personnel servicing from the same entity (CPAC), as was the case prior to the reorganization, the ASC and JMC now issue separate personnel policies and staff offices. Id. ¶¶ 14, 17. Additionally, the stipulation provides that the Petitioners' labor-management issues are now dealt with separately and that several of their staff offices have changed as a result of the reorganization. Id. ¶¶ 16-17. The stipulation also includes a list of job titles at the ASC and JMC and provides that Petitioners' employees will share work space after they relocate to new locations on Rock Island Arsenal. Id. ¶¶ 18-19, 23.
However, the stipulation omits facts concerning several significant factors. For example, with regard to personnel servicing and labor relations, the stipulation does not specify whether the Petitioners' ombudsmen operate independently of CPAC or are subordinate to CPAC. The stipulation does not provide any information concerning the relationship between the duties, job titles and working conditions of ASC and JMC employees or any information that would permit a determination of whether there are unique conditions of employment or other factors that indicate the employees no longer share a community of interest. Moreover, the stipulation does not provide a basis for resolving whether the policies which apply separately to the ASC and JMC are substantively different. Accordingly, as the stipulation does not provide sufficient information to decide whether the employees share a community of interest, the Authority is unable to determine whether employees in the existing unit continue to share a community of interest. As such, a remand to the RD is necessary to develop a sufficient record and specific factual findings in order to properly make a community of interest determination.
2. Effective Dealings
The criterion of effective dealings pertains to the relationship between management and the exclusive representative selected by unit employees in an appropriate bargaining unit. FISC, 52 FLRA at 961. 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 [ v62 p319 ] the level at which labor relations policy is set in the agency. Id.
In concluding that the record does not establish that the existing unit of Petitioners' employees promotes effective dealings, the RD found that, as a result of the reorganization, the Petitioners "have separate and independent bargaining authority and negotiators," and "separate and independent authority to establish their own personnel and labor relations policies." Id. Additionally, the RD determined that both entities "have conducted separate dealings and negotiations with the Union and such were not shown to be ineffective." Id. However, the RD did not make any additional findings regarding any of the factors, set forth above, used to resolve the "effective dealings" question, including the parties' past collective bargaining experience.
As with the community of interest factor, the stipulation does not permit us to resolve this matter. For example, the stipulation does not address the bargaining history of the parties. Further, although the stipulation identifies CPAC as administering personnel policies, and the ombudsman program as addressing labor relations issues, it does not explain the roles of these offices sufficiently to determine the extent to which the ombudsmen are independent of CPAC, or at what level personnel policies and labor relations decisions are made. Parties' Stipulation ¶ 14. As a result, the Authority is unable to determine whether the single unit continues to satisfy this criterion and a remand for further findings and consideration regarding this criterion is also warranted.
3. Efficiency of Operations
The criterion of efficiency of agency 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." FISC, 52 FLRA at 961. That is, a unit that bears "some" rational relationship to an agency's operational and organizational structure could result in economic savings and increased productivity to the agency. Id. Consequently, factors to be examined in assessing efficiency of agency operations pertain to the effect of the proposed unit on agency operations in terms of cost, productivity and use of resources. Id. at 961-62.
In concluding that the record did not support a finding that the existing unit of the Petitioners' employees promotes efficiency of operations, the RD found only that "the ASC and JMC are wholly in