United States Department of the Navy, Commander, Navy Region Mid-Atlantic (Activity/Petitioner) and National Union of Law Enforcement Associations (Exclusive Representative) and Fraternal Order of Police, First Federal Lodge 1F (Exclusive Representative) and International Federation of Professional and Technical Engineers, Local 3, AFL-CIO, Clc (Exclusive Representative) and American Federation of Government Employees, Local 1698, AFL-CIO (Exclusive Representative) and International Brotherhood of Police Officers, NAGE, SEIU (Labor Organization/Interested Party)

[ v63 p8 ]

63 FLRA No. 6

UNITED STATES
DEPARTMENT OF THE NAVY
COMMANDER, NAVY REGION MID-ATLANTIC
(Activity/Petitioner)

and

NATIONAL UNION OF LAW ENFORCEMENT
ASSOCIATIONS
(Exclusive Representative)

and

FRATERNAL ORDER OF POLICE
FIRST FEDERAL LODGE 1F
(Exclusive Representative)

and

INTERNATIONAL FEDERATION
OF PROFESSIONAL
AND TECHNICAL ENGINEERS
LOCAL 3, AFL-CIO, CLC
(Exclusive Representative)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1698, AFL-CIO
(Exclusive Representative)

and

INTERNATIONAL BROTHERHOOD
OF POLICE OFFICERS
NAGE, SEIU
(Labor Organization/Interested Party)

WA-RP-07-0069

_____

ORDER DENYING
APPLICATION FOR REVIEW

November 7, 2008

______

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This case is before the Authority on an application for review filed by the National Union of Law Enforcement Associations (NULEA) under § 2422.31 of the Authority's Regulations. [n1]  None of the parties filed an opposition to NULEA's application for review.

      As relevant here, as the result of a reorganization within the United States Department of the Navy (DoN), eleven police officers located in the Philadelphia, Pennsylvania area and represented by the Fraternal Order of Police, First Federal Lodge 1F (FOP), were transferred to the Commander, Navy Region Mid-Atlantic (CNRMA). Following the transfer, CNRMA filed a petition seeking a determination that all of the transferred employees had accreted into its largest existing bargaining unit of similar employees represented by NULEA. The Regional Director (RD) determined that FOP's existing unit remained an appropriate, separate successor unit and that an election was unnecessary because FOP represented all of the police officers in Philadelphia who were transferred to CNRMA.

      Because two vacancies existed in the Authority, the Chief of Case Intake and Publication issued an Interim Procedural Order (Interim Order) on August 29, 2008, deferring action on the application for review "until a quorum of Authority Members is established." Interim Order at 2. The Interim Order preserved the parties' rights under the Statute to Authority consideration of the Regional Director's decision. The Authority now considers NULEA's application for review.

      For the reasons that follow, we deny the application for review.

II.      Background and RD's Decision

      In 2003, the DoN consolidated "almost all employees performing operational support functions at every naval installation into a new organization, Commander, Navy Installations (CNI), which is comprised of 16 Regional Commands." United States Dep't of the [ v63 p9 ]  Navy, Commander, Navy Region Southeast, Jacksonville, Fla., 62 FLRA 11, 12 (2007) (citing United States Dep't of the Navy, Naval Dist. Wash., 60 FLRA 469, 470 (2004)). CNRMA is one of the regional commands comprising CNI. CNRMA is required to equip, train, and manage security staff, but the commanding officer of each base retains operational control of the security forces on-site. Security services are comprised of two functions: (1) guard functions, such as gate guard, sentry, and harbor security; and (2) law enforcement functions, such as patrolling, apprehensions and arrests, and responding to service calls. Police officers provide 24-hour coverage in three shifts everywhere in the CNRMA.

      At the time of the consolidation, employees from approximately seven bases in the Norfolk area were transferred to CNRMA. As a result, NULEA became the exclusive representative of these employees, who were included in a unit of all Public Safety Program employees within the Security Directorate of CNRMA as it then existed. Currently, the NULEA unit consists of approximately 311 employees and includes all nonprofessional employees of CNRMA's Security Directorate located in the Norfolk area. In addition to police officers, this unit includes detectives and security assistants, as well as other positions such as, purchasing agent, employee entitlement clerk, budget assistant, administrative support assistant, investigator, criminal records clerk, and dispatcher.

      Since 1979, the FOP has represented a unit of police officers at what is now known as the Philadelphia Naval Business Center (PNBC). As relevant here, as part of the CNI consolidation, all eleven police officers in FOP's unit were transferred to CNMRA's Security Directorate in October 2005, but their duty station remained unchanged.

      Following the transfer of the eleven police officers, CNRMA filed a petition seeking a determination that they had accreted into the bargaining unit of employees represented by NULEA. [n2]  NULEA agreed with CNRMA's position. [n3]  FOP opposed the petition claiming that, under the successorship doctrine, its existing unit remained appropriate.

      Before the RD, FOP claimed that successorship applied: CNRMA, NULEA, and the International Brotherhood of Police Officers, NAGE, SEIU (IBPO) argued that accretion applied. Based on the parties' claims, the RD applied the legal framework set forth in United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950 (1997) (FISC) for resolving competing claims of successorship and accretion in cases arising out of a reorganization where employees are transferred to a pre-existing or newly established organization.

      Applying FISC, the RD first considered whether FOP's unit constituted a majority of a separate unit of Philadelphia police officers. As all of the police officers in Philadelphia were transferred to CNRMA, the RD determined that they did. See RD's Decision at 9. The RD then addressed whether FOP's unit of police officers remained appropriate under § 7112 of the Federal Service Labor-Management Relations Statute (the Statute). In this regard, the RD considered whether the unit would: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with CNRMA; and (3) promote the efficiency of CNRMA's operations. See id. (citing FISC, 52 FLRA at 959).

      The RD applied the first criterion and found that the transferred police officers share a clear and identifiable community of interest. In particular, the RD found that the administrative transfer of these officers into the CNRMA "did not substantially affect their working conditions." RD's Decision at 10. Noting that "the fundamental premise" of the first criterion is to ensure that it is possible for employees to deal collectively with management as a single group, the RD found that the FOP unit is comprised solely of police officers who support one mission: to provide security at the PNBC in Philadelphia. Id. (quoting FISC, 52 FLRA at 960). The RD also found that the police officers are "subject to the same chain of command" (i.e., the Philadelphia Security Director and the two levels of supervision under him) and are "subject to similar working conditions, including personnel policies." Id.  

      [ v63 p10 ] In further support of his conclusion that the first criterion is satisfied, the RD also found that there were "distinct local concerns" for the police officers in Philadelphia. Id. In this regard, the RD found that, unlike all of the other installations within CNRMA, PNBC is not a closed base, which has resulted in "unique local security concerns, which are addressed at the local level." Id. Further, the RD found that local level supervisors have the authority to negotiate and make decisions over local matters, such as oceoresin capsicum (OC) or pepper spray use, and that they have the authority to do so without consulting with the Human Resources Office (HRO) in Norfolk. Id. The RD also determined that grievances could be adjusted by the three levels of supervision in Philadelphia without any need for approval from CNRMA. In terms of geography, the RD found that the Norfolk area police officers are located a considerable distance from those in Philadelphia. The RD found that there is no interchange between the two groups of police officers, as evidenced by the use of overtime to provide coverage for police officers in Philadelphia. According to the RD, other than when Philadelphia new hires attend basic training, they have no contact with police officers in the rest of CNRMA. In this regard, after basic training, all training for police officers is conducted locally.

      Although the RD acknowledged that there was "some centralization" of CNRMA as a result of the reorganization, he concluded that it did not establish that the Philadelphia police officers no longer shared a community of interest. In this regard, the RD found that, although hiring decisions are made in CNRMA, the record shows that this is done in consultation with the Philadelphia Security Director, who requests that a vacancy be filled. See id. The RD further found that, although CNRMA determines whether adverse actions will be taken against police officers, sets the budget affecting the police officers in Philadelphia, and establishes certain standard operating procedures applicable to them, many of these procedures are established by CNI, rather than by CNRMA. Further, the RD found that the Philadelphia Security Director has the authority to determine certain local procedures, such as visitor controls. Id. Citing Authority precedent, the RD found that, overall, the changes resulting from the reorganization are not significant enough to eliminate the established community of interest of the police officers in the FOP unit. Id. at 11.

      With regard to the second criterion, the RD found that the Philadelphia unit of police officers would promote effective dealings with CNRMA. As an initial matter, the RD noted that FOP's unit has existed for over thirty years. Although CNRMA sets overall labor relations policy, the RD found that day-to-day matters are handled locally. In this regard, the RD found that bargaining has taken place at the local level over issues such as visitor controls and OC spray. Further, grievances are resolved at the local level, and HRO Norfolk may not be consulted when this happens. Also, in the years since the reorganization, CNRMA has dealt with FOP on matters related to collective bargaining, and has delegated bargaining authority on local concerns. The RD determined that "[t]here was no showing that [CNRMA] could not continue to deal with the FOP as it has for the last five years" since the reorganization. Id. Based on the foregoing, the RD concluded that the unit would promote effective dealings with CNRMA.

      Applying the third criterion, the RD determined that FOP's unit would also promote the efficiency of CNRMA operations. In this respect, the RD found that a unit of police officers in Philadelphia "comports with the structure established by [CNRMA], as it includes all the police offices in the Philadelphia area." Id. According to the RD, as CNRMA and the Philadelphia Security Director have dealt with FOP's unit in the five years since the reorganization without any adverse consequences, there should not be any adverse consequences resulting from continued dealings with FOP. See id. at 11-12. Accordingly, the RD found that the efficiency of CNRMA operations criteria was satisfied and, therefore, a unit of all police officers in Philadelphia remained appropriate under § 7112.

      Having concluded that FOP's unit remains appropriate under § 7112, the RD next applied the remaining factors in the successorship analysis set forth in Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme). In this regard, the RD considered whether there is a substantial similarity of mission between the former and gaining employer and the similarity of the employees' working conditions, as well as whether an election is necessary to determine representation.

      With regard to the similarity of mission and working conditions, the RD found that the "mission of providing security to the [PNBC] did not change as a result of the 2003 reorganization." RD's Decision at 12. The RD further determined that the role of the police officers "was always to provide security at the same location." Id. As such, the RD found that the police officers perform "precisely the same work, in the same location, as they had before [the transfer]." Id. According to the RD, such finding is supported by the Philadelphia Security Director's testimony that the police officers' duties "remained exactly the same following the transfer." Id. [ v63 p11 ]  Thus, the RD concluded that the Port Hueneme requirement of substantial similarity of mission between the former and gaining employer, and similarity of employees' working conditions, was satisfied. The RD also found that an election was unnecessary to determine representation because FOP represents 100% of the police officers who were transferred to CNRMA.

      Based on the foregoing, the RD concluded that FOP's unit of police officers in Philadelphia remained separately appropriate under successorship, and that such unit description should be updated to include all police officers of the Security Directorate, CNRMA, located in Philadelphia, Pennsylvania. [n4]  Id. at 13.

III.     Application for Review [n5] 

      NULEA argues that Authority precedent "clearly supports a finding that the Philadelphia police officers accreted to [its] unit." Application for Review at 19. In this regard, NULEA does not dispute that the eleven Philadelphia police officers constitute a majority of a unit of Philadelphia officers within the meaning of the FISC test. See id. at 8. However, NULEA contends that, contrary to the RD's finding, FOP's unit does not remain appropriate. In this respect, NULEA asserts that record evidence shows that there are "significant changes that have affected the Philadelphia area employees, to the extent that the Philadelphia area Security Directorate employees now share a community of interest with the Norfolk area Security Directorate employees[,]" the unit that NULEA represents. Id. at 10. NULEA claims that all employees in the "Security Directorate, regardless of their duty location, perform similar work under similar working conditions . . . and occupy similar job occupations." Id. at 16.

      With respect to the RD's application of the community of interest criterion, NULEA disputes the RD's finding that the Philadelphia police officers have distinct local security concerns that are addressed at the local level because PNBC "is not a closed base." Id. at 17. NULEA argues that such finding is "flawed" because it fails to consider that "other installations" in CNRMA have had a long history of being "open bases" and are "equipped to handle and resolve issues related to open bases." Id. NULEA further argues that, although "other [CNRMA] bases are currently closed," many areas under police responsibility are not, but are still "covered by the police." Id. According to NULEA, "[i]t would not be surprising if, considering the current times and security concerns, [PNBC] became a closed base." Id. NULEA further contends that all of the expertise for handling PNBC's security concerns and establishing policy lies in Norfolk. In this regard, NULEA argues that the RD's finding that the use of OC spray is handled without negotiations with Norfolk is incorrect. See id. NULEA claims that the use of OC spray is part of training, which falls under Norfolk's authority, and "OC spray [use] will clearly become a policy matter to be addressed in Norfolk under the training procedures." Id. (emphasis added). NULEA also asserts that, although the RD's finding that grievances can be adjusted locally "is true," the most serious disciplinary actions and grievances are not. Id. According to NULEA, Philadelphia is only responsible for the same types of local issues as other bases within the CNRMA. NULEA also contends that the RD "understates the centralization" of personnel policies and claims that standard operating procedures for the region and the budget are established by CNRMA. Id. at 18.

      NULEA also claims that the RD "failed to properly evaluate the effective dealings and efficiency of agency operations criteria." Id. In this regard, notwithstanding the RD's determination that local bargaining has taken place concerning visitor controls and the use of OC spray, NULEA asserts that CNRMA sets overall labor relations and personnel policies for the region. Further, NULEA claims that it is "of significant concern" that CNRMA would be required to negotiate a separate contract for the eleven FOP police officers. Id. at 19. In this connection, NULEA contends that such negotiations "would create staffing shortages [that] would prejudice the mission of the security office." Id. Further, NULEA claims that the RD's statement that there is record evidence to support NULEA's claim that the Philadelphia police officers accreted into its unit, supports its application. Id. Finally, NULEA asserts that its unit description would not need to be changed in  [ v63 p12 ] order to accrete the Philadelphia police officers, [n6]  and no election would be required because NULEA's employees would represent more than 70% of the employees in the combined unit. See id. at 19-20.

IV.     Analysis and Conclusions

      We construe NULEA's assertion that FOP's unit does not remain appropriate and that Authority precedent "clearly supports a finding that the Philadelphia police officers accreted to NULEA's unit[,]" Application for Review at 19, as a claim that the RD failed to apply established law. See, e.g., Nat'l Credit Union Admin., 61 FLRA 349, 351 (2005) (where agency argued that "established law warrants reconsideration," the Authority, based upon the substance of the agency's arguments, construed the assertion as a claim that the RD failed to apply established law). For the reasons discussed below, we find that NULEA has not demonstrated that the RD failed to apply established law.

      In FISC, the Authority adopted the following framework for resolving cases arising from a reorganization where employees are transferred to a pre-existing or newly established organization (the "gaining organization") and both successorship and accretion principles are claimed to apply:

(1)     Initially, the Authority will determine whether, under [§] 7112(a) of the Statute, the transferred employees are included in, and constitute a majority of, a separate appropriate unit in the gaining organization. The outcome of this inquiry will govern whether successorship or accretion principles should next be applied.
(2)     If it is determined that the transferred employees are included in and constitute a majority of a separate appropriate unit in the gaining organization, [then] the Authority will apply the remainder of the successorship factors set forth in Port Hueneme to the unit determined to be appropriate. The outcome of the Port Hueneme analysis will determine whether the gaining organization is a successor for purposes of collective bargaining with the labor organization that represented the transferred employees at their previous employer.
(3)     If it is determined that the transferred employees are not included in or do not constitute a majority of a separate appropriate unit in the gaining organization, [then the Authority] will apply accretion principles. The outcome of this analysis will determine whether the transferred employees have accreted to a pre-existing unit in the gaining organization.

Def. Logistics Agency, Def. Supply Ctr. Columbus, Columbus, Ohio, 53 FLRA 1114, 1121 (1998) (DSC, Columbus) (citing Dep't of the Navy, Naval Supply Ctr., Puget Sound, Bremerton, Wash., 53 FLRA 173, 178-79 (1997) (Bremerton); FISC, 52 FLRA at 958-59).

      The first step in this framework "corresponds to the first factor set forth in Port Hueneme, which requires, inter alia, that `the post-transfer unit must be appropriate[.]'" FISC, 52 FLRA at 959 (quoting Port Hueneme, 50 FLRA at 368). As stated by the RD, a unit may be deemed to be appropriate under § 7112(a) of the Statute only if it will: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with the agency involved; and (3) promote efficiency of the operations of the agency involved. Id. at 959-62. A proposed unit must meet all three criteria in order to be found appropriate. United States Dep't of the Army, Military Traffic Mgmt. Command, Alexandria, Va., 60 FLRA 390, 394 (2004). 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.

      With regard to the first appropriate unit criterion -- whether employees share a clear and identifiable community of interest -- the Authority examines such factors as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation. See FISC, 52 FLRA at 961 (citations omitted). In addition, the Authority considers factors such 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;  [ v63 p13 ] and are governed by the same personnel office. See id. at 960-61.

      NULEA argues that all employees within CNRMA's Security Directorate, regardless of their duty location, perform similar work under similar working conditions and occupy similar job occupations. However, the RD found that, although the transfer of the Philadelphia police officers to the CNRMA was a change, "it did not substantially affect their working conditions." RD's Decision at 10. In this regard, the RD found that the unit is comprised solely of police officers who are locally subject to the same chain of command and similar working conditions. The RD further found that the realignment of CNRMA into CNI "did not result in any changes to the duties of the Philadelphia police officers." Id. at 8. In addition, the RD found that there are "distinct local concerns" for these police officers. Id. at 9. In this respect, the RD found that PNBC "is not a closed base, as are all other installations" in the CNRMA, which results in "unique local security concerns" that are addressed at the local level. Id. at 10.

      NULEA does not dispute the RD's finding that PNBC is not a closed base: NULEA asserts that the RD's findings in this regard are "flawed" because the RD failed to consider that "other installations" in CNRMA have a "long history of being open bases" and can handle "issues related to open bases." Application for Review at 17. NULEA further asserts that it "would not be surprising" if PNBC "became a closed base." Id. NULEA's assertions do not demonstrate that the RD failed to properly apply the community of interest criterion. In this regard, NULEA's assertions ignore that the RD was required to assess whether the eleven Philadelphia police officers continue to share a community of interest following the reorganization transferring them to CNRMA. Further, NULEA has not pointed to any evidence to support its claim that PNBC could become a closed base in the future. As this assertion concerns what may happen in the indefinite future, it provides no basis for establishing that the RD failed to apply established law. See, e.g., Def. Logistics Agency, Def. Contract Mgm't Command, Def. Contract Mgm't Dist., North Cent., Def. Plant Representative Office-Thiokol, Brigham City, Utah, 41 FLRA 316, 327 (1991) (DPRO-Thiokol) (decisions regarding unit determinations must reflect the conditions of employment that exist at the time of the hearing rather than what may exist in the future unless there are definite and imminent changes planned by the agency); see also NAGE, Local R12-35, 8 FLRA 649, 650 n.3 (1982).

      NULEA further claims that the RD's finding that the use of OC spray is handled without negotiations with Norfolk is incorrect because OC spray use is a part of training, which falls under CNRMA Norfolk's authority. Application for Review at 17. Such claim provides no basis for finding that the RD failed to apply established law because NULEA misunderstands the RD's finding. In this regard, the RD's finding was based on his determination that record evidence established that PNBC supervisors at the local level have the authority to negotiate and make decisions over "local matters." RD's Decision at 10. The record evidence supports the RD's finding. See Transcript (Tr.) at 96-97 (Deputy Director of Regional Security for CNRMA testified concerning OC spray and the authority of the FOP to "negotiate[e] local policy"). The record also supports the RD's finding that "[a]fter basic training, all refresher training is handled locally." RD's Decision at 10; see also Tr. at 84-87. Further, to the extent NULEA claims that "OC spray [policy] will clearly become a policy matter to be addressed in Norfolk under the training procedures," Application for Review at 17 (emphasis added), this concerns what may happen in the indefinite future and, as such, provides no basis for establishing that the RD failed to apply established law. See, e.g, DPRO-Thiokol, 41 FLRA at 327.

      Based on the foregoing, NULEA has not demonstrated that the RD failed to apply established law in finding that the eleven police officers continue to share a community of interest.

      NULEA also argues that the RD failed to properly apply the effective dealings criterion, which pertains to the relationship between management and the exclusive representative selected by unit employees in an appropriate bargaining unit. See 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 the level at which labor relations policy is set in the agency. See id.

      As set forth previously, the RD found that FOP's unit would promote effective dealings with CNRMA. Although NULEA is correct that the RD found that CNRMA sets overall labor relations policy, the RD further found that "day-to-day matters are handled locally." RD's Decision at 11. In support, the RD found that "[b]argaining has taken place at the local level" over such matters as visitor controls and OC spray in the five [ v63 p14 ]  years since the reorganization, and that "[g]rievances can be adjusted by the three levels of supervision present in Philadelphia without any need for approval from [CNRMA]." Id. Although NULEA claims that not all types of grievances can be adjusted locally, NULEA has not demonstrated that the RD's determination is unsupported by the record. See Tr. at 113.

      NULEA further argues that negotiations with FOP's unit would "create staffing shortages [that] would prejudice the mission of the security office." Application for Review at 19. However, NULEA has provided no evidence to support this claim. In addition, record evidence reveals that the Agency was not aware of how quickly or how long negotiations with FOP would take or any costs associated with such negotiations. See Tr. at 81, 92-3. As such, NULEA has not provided any basis for finding that the RD erred in the application of established law in assessing whether FOP would promote effective dealings with CNRMA. See, e.g., United States Dep't of the Air Force, 82nd Training Wing, 361st Training Squadron, Aberdeen Proving Ground, Md., 57 FLRA 154, 156 (2001) (four-person unit found to promote effective dealings where local commander retained discretion in establishing the day-to-day working conditions of employees at issue and had authority to negotiate at the detachment level); DSC, Columbus, 53 FLRA at 1124 (Authority is "reluctant to disturb longstanding bargaining units . . . when bargaining in those units has been successful"); Bremerton, 53 FLRA at 182 (following a reorganization, bargaining unit with 30 years of bargaining history found to promote effective dealings). Thus, the RD's findings support a conclusion that the FOP unit would promote effective dealings.

      The efficiency of agency operations criterion concerns the benefits to be derived from a unit structure bearing a rational relationship to the operations and organizational structure of the agency. See FISC, 52 FLRA at 961. The RD found that a unit of all police officers in Philadelphia comports with the structure established by CNRMA because it includes all police officers in the Philadelphia area. See RD's Decision at 11. The RD further found that CNRMA (through HRO Norfolk) and the Philadelphia Security Director have had several years in dealing with FOP without any adverse consequences. NULEA provides no basis for finding that the RD erred in this regard; the RD's findings support his conclusion that the FOP unit would promote the efficiency of CNRMA's operations.

      Based on the foregoing, the RD correctly applied established law in determining that the FOP unit remains appropriate under § 7112. As there is no dispute that the remaining Port Hueneme factors are also satisfied, the RD was correct in determining that the FOP unit remains appropriate under successorship.

      With regard to the RD's statement that there is record evidence to support NULEA's accretion claim, such statement does not provide a basis for finding that the RD failed to apply established law. As set forth above, NULEA has provided no basis for finding that the RD failed to properly apply established law in finding that the FOP unit remained an appropriate unit. Further, as the RD correctly stated, under Authority precedent, successorship claims prevail over accretion claims. See FISC, 52 FLRA at 958-59, 962-63. In this regard, application of the accretion doctrine is not appropriate if all factors are satisfied under FISC and Port Hueneme. See id. As these factors were satisfied here, there is no basis for applying accretion. Accordingly, NULEA has not established that the RD failed to apply established law.

V.     Order

      The application for review is denied.



Footnote # 1 for 63 FLRA No. 6 - Authority's Decision

   Section 2422.31 of the Authority's Regulations provides, in pertinent part:

(c) Review. 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.

Footnote # 2 for 63 FLRA No. 6 - Authority's Decision

   The petition in this case concerns a total of sixteen Philadelphia employees who were transferred to CNRMA. Specifically, in addition to the eleven FOP police officers, a program assistant and a security assistant represented by the International Federation of Professional and Technical Engineers, Local 3, AFL-CIO CLC (IFPTE) and three security clerks represented by the American Federation of Government Employees, Local 1698, AFL-CIO (AFGE) were also transferred. At the time of the hearing, only one of the AFGE employees remained. Thus, in addition to the eleven police officers, three additional employees were in dispute. The RD found that these three additional employees had accreted into NULEA's unit. As no party challenges this finding, we do not address the non-police officer employees further.


Footnote # 3 for 63 FLRA No. 6 - Authority's Decision

   The International Brotherhood of Police Officers, NAGE, SEIU (IBPO), which had previously represented NULEA's unit, also agreed with the Agency's position. The RD allowed IBPO to intervene in this case because it had filed a separate petition in Case No. WA-RP-07-0078 seeking an election in the unit represented by NULEA. IBPO's petition in that case is being held in abeyance pending the outcome of this case. See RD's Decision at 2.


Footnote # 4 for 63 FLRA No. 6 - Authority's Decision

   The RD noted that if the Authority were to disagree with such finding on review, then the record evidence is sufficient to support "an alternative finding" that "the Philadelphia police officers accreted to NULEA's unit, which also contains police officers." RD's Decision at 14 n.7. However, because "under Authority precedent, successorship claims prevail over accretion [claims]," the RD concluded that "FOP's successorship claim is valid." Id.


Footnote # 5 for 63 FLRA No. 6 - Authority's Decision

   NULEA's certificate of service indicates that its application for review was mailed on July 1, 2008. However, the envelope in which the application was filed with the Authority bears a June 17, 2008 postmark. Under 5 C.F.R. § 2429.21(b), the postmark date is the filing date. As such, the Authority ordered NULEA to provide "additional evidence regarding the actual filing date of NULEA's application." Order (July 16, 2008) at 2. In response, NULEA provided evidence demonstrating that, despite the June 17, 2008 postmark, its application for review was not deposited in the mail until July 1, 2008. Accordingly, the Authority issued an order stating that NULEA's application is "deemed . . . filed on July 1, 2008" and "[t]he due date for all actions relative to this case should be calculated from that date." Order (August 8, 2008) at 2.


Footnote # 6 for 63 FLRA No. 6 - Authority's Decision