[ v46 p1354 ]
The decision of the Authority follows:
46 FLRA No. 132
FEDERAL LABOR RELATIONS AUTHORITY
NAVAL SUBMARINE BASE, NEW LONDON
NAVAL SUBMARINE SCHOOL
NAVAL SUBMARINE SUPPORT FACILITY NEW LONDON
PERSONNEL SUPPORT ACTIVITY NEW LONDON
AND NAVAL HOSPITAL GROTON
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R1-100, SEIU, AFL-CIO
ORDER DENYING APPLICATION FOR REVIEW
February 11, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for review filed by the Activity under section 2422.17(a) of the Authority's Rules and Regulations. In its amended petition before the Regional Director (RD), filed pursuant to section 7112(d) of the Federal Service Labor-Management Relations Statute (the Statute), NAGE sought to consolidate five bargaining units of nonprofessional employees for which it is the recognized or certified exclusive representative. The Activity opposed the proposed consolidation, and the RD held a hearing on the matter. In his Decision and Order on Petition to Consolidate Units, the RD found that the consolidated unit sought by NAGE is appropriate under the criteria of section 7112(a)(1) of the Statute. Accordingly, the RD stated that he would issue a certification on consolidation of units pursuant to section 2422.2(h) of the Authority's Regulations.
The Activity seeks review of the RD's decision. NAGE did not file an opposition to the application for review. For the reasons discussed below, we find that the Activity has not established any basis for review of the RD's Decision and Order. Accordingly, we deny the application for review.
II. Background and Regional Director's Decision
A. Bargaining History
In 1965, NAGE was recognized as the exclusive representative of all nonprofessional employees of the U.S. Naval Submarine Base New London (Submarine Base), located in Groton, Connecticut, excluding employees of tenant activities. Between 1972 and 1977, NAGE was certified as the exclusive representative of nonprofessional employees of four tenant activities: (1) the Naval Hospital Groton (Hospital); (2) the Naval Submarine School New London (Submarine School); (3) the Personnel Support Activity New London (PSA); and (4) the Naval Submarine Support Facility New London (NSSF). NAGE's amended petition sought to consolidate these five bargaining units, all located at the Submarine Base.(2)
Prior to 1976, the parties negotiated separate collective bargaining agreements for the Submarine Base, Commissary, and Hospital units. Beginning in 1976, the parties negotiated a series of four multi-unit collective bargaining agreements which covered the Submarine Base, Commissary, Submarine School, PSA, and NSSF (since 1977) units.(3) The most recent agreement covered a period of 3 years, beginning in April 1989. Pursuant to that agreement, the five activities gave NAGE notice in 1991 that they were terminating the agreement as of April 1992 and would no longer negotiate on a multi-unit basis.
The Submarine Base is the host activity of the Naval Submarine Base, New London. Since at least 1976, the Submarine Base's Consolidated Civilian Personnel Office (CCPO) has handled, and continues to handle, personnel and labor relations functions for the Submarine Base and tenant activities pursuant to support agreements between CCPO and the Submarine Base and between CCPO and each activity. The support agreements obligate the Submarine Base, as the host activity, to furnish necessary physical and administrative support, including personnel and labor relations, to all tenant activities. Prior to the activities' notice of 1991, negotiations with NAGE on behalf of the Submarine Base and all tenant activities, for separate agreements, and for the four multi-unit agreements, were conducted by CCPO.
Moreover, the record establishes that shortly before the hearing in this case, the parties completed joint negotiations on drug-free workplace agreements. The Commissary unit was included in these negotiations. The Hospital and PSA sent their own representatives to the table, while CCPO represented the Submarine Base, the Submarine School, NSSF, and the Commissary. The negotiations produced six separate, but identical, agreements, in which each of the activities designated a CCPO representative as its drug program coordinator, and the activities have entered into support agreements with CCPO for this purpose.
B. Organizational Structure and Missions
The Commanding Officer of the Submarine Base reports to the Commander of Submarine Forces, Atlantic Fleet. However, the Base's labor relations are coordinated through the Commander of Submarine Group Two (Cmdr. II), who is located at Groton and serves as the overall military commander for the Groton area. The Commanding Officer of the Submarine School reports to the Chief of Naval Technical Training in Millington, Tennessee, but labor relations are coordinated through Cmdr. II. The Commanding Officers of PSA, NSSF, and the Hospital report to Cmdr. II.(4)
The mission of the Submarine Base "is to: 'maintain and operate the support infrastructure, including facilities and services, for the units, personnel, and operations of the submarine force located in Southeastern Connecticut[;] [and] to provide support . . . to other activities of the Navy . . . in the [Groton] area . . . .'" Regional Director's Decision at 4 (first and second omissions in original). The Submarine School's mission is to provide education and training to submarine and submarine support personnel. PSA's mission is to provide pay, travel, and transportation services to naval military and civilian personnel throughout the Northeast. PSA has 17 Personnel Support Detachments (PSDs) located throughout the PSA's geographic jurisdiction. The Groton PSD accomplishes the PSA mission for Groton's military and civilian personnel. NSSF's mission is to provide direct maintenance, repair, and upkeep support to the submarine fleet operating out of the Groton base. The Hospital's mission is "to provide a comprehensive range of emergency, outpatient and inpatient health care services to active duty Navy and Marine Corps personnel . . . and [to provide] medical equipment maintenance and repair services to assigned health care treatment facilities and commands in the local [Groton] area as requested or required." Id. at 5.
The relationship between the Submarine Base and the tenant activities, as defined in the support agreements between CCPO and the tenant activities, involves a certain degree of operational integration. In this regard, the support agreements obligate the Submarine Base to furnish police and security, fire protection, and public works support, which includes building maintenance, utilities, and engineering services. In addition, the Submarine Base provides the tenants with data processing services and computer support; accounting, payroll,(5) and financial management assistance; mail pickup and delivery; publication of a base newspaper which carries news items and information of interest to employees; and transportation services, including on-station taxi service, government motor vehicles, driver's license examination and testing services, and motor vehicle repair and maintenance.
Record testimony also showed, for example, that crane operators in the Submarine Base unit work with NSSF unit employees during submarine loading operations. The Hospital's Industrial Hygienist and preventative medicine technicians provide inspectional services to the other activities, and the Hospital periodically conducts health fairs, and blood pressure and cholesterol screening, for all employees on the base. The Submarine Base supply department receives all supplies delivered to the base and routes them to the particular activities where they are accepted by the activities' supply personnel. Finally, the Hospital coordinates its hours of operation with those of the Submarine School because it provides "sick call" services to school students; otherwise, it appears that the several activities independently establish their own hours of operation including flexitime and compressed workweek schedules for bargaining unit employees.
C. Personnel and Labor Relations Functions
The Submarine Base and the tenant activities have their personnel and labor relations functions performed by CCPO Groton pursuant to support agreements.(6) Under these support agreements, CCPO functions as the liaison with the Office of Personnel Management (OPM), the Authority, the Merit Systems Protection Board (MSPB), the Navy's Office of Civilian Personnel Management, and other Federal agencies and activities in relation to civilian personnel matters.
The support agreements each "provide that 'required policies and procedures promulgated by CCPO instructions applying to civilian personnel matters shall be considered to apply to . . . [the tenant] activities except for any officially documented deviations promulgated by the [tenant's] CO [Commanding Officer].'" Id. at 6 (omission in original). In this regard, the record reflects that CCPO has promulgated a comprehensive instruction, entitled the CCPOGROINST 12000.1 - CCPO Groton Policies and Procedures Manual (CCPO Manual), which has been issued to the tenant activities for their use as guidelines and as a single source of information on civilian employee matters. In addition, the support agreements provide for CCPO to furnish certain civilian personnel services to each of the tenant activities, as noted by the RD and in the Appendix to this decision.
Within the parameters of these support agreements, and normally with CCPO guidance and concurrence, the activities have individually developed and implemented policies or instructions on such matters as incentive awards, payroll management authority, and equal employment opportunity.(7) The RD noted that all of these instructions, however, "appear to either implement or elaborate on provisions of the CCPO Groton Policies and Procedures manual, rather than constituting an officially documented deviation." Id. at 8. The RD found that the Submarine Base has implemented instructions on civilian wellness and on medical surveillance and examinations which apply to bargaining unit employees of all of the tenant activities. Also, the Submarine Base has established a Civilian Welfare and Recreation Association (CWRA) to promote the mental, social and physical well-being of all civilian employees working at the Groton base. The CWRA's implementing instruction provides for representation on its managing committee by each of the tenant activities and by NAGE.
D. Composition of the Units' Workforces and Extent of Interchange Between Units
The proposed consolidated unit at the time of the hearing was estimated to include approximately 673 employees. Of those, approximately 74% were in the Submarine Base unit, 14.4% in the Hospital unit, 7.4% in the NSSF unit, 2.7% in the Submarine School unit, and 1.5% in the PSA unit. Record testimony shows that the general schedule employees fall into 15 classification series. Of those, employees in 5 series are found in 2 units; employees in 2 series are found in 3 units; and employees in 3 series, representing approximately 200 employees, are found in all 5 units. Most of the approximate 280 wage grade employees are employed in the Submarine Base unit; however, there are employees in 3 classification series found also in the Hospital unit, and employees in 7 other classification series found in the NSSF unit.
Appointments to positions in any of the units are made pursuant to the merit promotion policy set forth in the CCPO Manual. Vacancies are normally advertised throughout the Groton base, but each activity retains discretion to request that CCPO expand or restrict the area of consideration. In addition, the CCPO merit promotion policy recognizes the authority of the activities to select from other sources such as OPM registers, or by other means such as reinstatement of former Federal employees, reassignments or voluntary changes to lower grades, transfers from other Federal agencies, and appointments of veterans and severely handicapped individuals. Approximately 15% of the employees entering the bargaining units during the 5-year period preceding the hearing came from one of the other 4 units in the proposed consolidated unit. The remainder of the appointments were made from employees recruited from other sources, primarily from outside the Federal government. In addition, there is a degree of operational integration among the activities and the employees of some of the different activities work together, particularly with regard to submarine loading and supply operations, as described above.
E. Regional Director's Findings and Conclusions
The RD noted that the parties recognized the Authority's holding in Department of Transportation, Washington, D.C., 5 FLRA 646, 652 (1981), that "with respect to section 7112(d), 'the Statute contains a provision intended to facilitate consolidation of existing small units into more comprehensive ones, provided that the proposed consolidated unit is appropriate under the criteria of section 7112(a)(1).'" Id. at 11.(8)
The RD also noted that
[i]n [U.S.] Department of Justice, 17 FLRA 58, 62 (1985), the Authority identified the following factors to be examined in connection with determining whether a proposed consolidated unit will ensure a clear and identifiable community of interest: the degree of commonality and integration of the mission and function of the components involved; the distribution of employees throughout the organizational and geographic components of the agency; the degree of similarity of occupational undertakings of the employees in the proposed unit; and the locus and scope of personnel and labor relations authority and functions.
Id. at 12 n.9.
The RD examined each of the factors set forth in U.S. Department of Justice as they apply to the Activity, and found that: (1) the employees of the five activities "are all involved in various support functions that are necessary to the successful operation of the submarine fleet" and "are engaged in a unified mission"; (2) "interchange occurs between the employees of the five activities in such areas as shipping and receiving, submarine loading, data processing, payroll coordination, accounting and financial management assistance, mail pickup and delivery and through the Hospital's inspectional and health services"; (3) "there are significant similarities of job classifications, skills and duties among the" five activities, "reflected by the fact that approximately 15% of the appointments made to the units in recent years were from one of the other units"; and (4) the "personnel and labor relations functions are vested in the CCPO, and the record "demonstrates that the CCPO establishes common or uniform policies applicable to all of the activities." Id. at 12-13. The RD concluded that, accordingly, "the employees in the proposed consolidated unit share a clear and identifiable community of interest within the meaning of section 7112(a)(1) of the Statute." Id. at 13.
As to the question of whether the proposed consolidated unit will promote effective dealings with, and efficiency of operations of, the Agency, the RD found that "the centralized location of personnel and labor relations authority in the CCPO, coupled with nearly 16 years of successful multi-unit negotiations, supports a positive finding." Id. He also found that "the proposed consolidated unit will reduce existing bargaining unit fragmentation," and that "[i]n view of the common overall mission of the [a]ctivities and their interdependent functions, the consolidation will produce a more comprehensive and effective bargaining unit which will reduce duplication of effort and promote the purposes of the Statute." Id. The RD concluded "that the proposed consolidated unit will promote effective dealings with, and efficient operations of, the [A]gency as required by section 7112(a)(1) of the Statute." Id. Accordingly, the RD determined that the proposed consolidated unit "is appropriate under the three criteria set forth in section 7112(a)(1) of the Statute and will constitute a meaningful consolidation of all nonprofessional [A]gency employees represented by NAGE at the Groton base." Id.
III. The Application for Review
The Activity seeks review of the RD's decision under section 2422.17(c)(1) and (4) of the Authority's Regulations, alleging that: (1) a substantial question of law or policy is raised by the decision because of a departure from Authority precedent; and (2) the RD's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of the Activity.
As to the first ground for review, the Activity states that, contrary to the RD's conclusions, the activities' "missions are dissimilar [and] the chain of command for each activity is different . . . there is little interchange . . . [and] there is a lack of significant similarity of job classifications, skills, and duties outside of secretarial and clerical [classifications] . . . ." Application at 7. The Activity also states that "CCPO defers to each commander and [contrary to the RD's conclusion] does not establish common or uniform policies applicable to all of the [a]ctivities." Id. The Activity asserts that an analysis of the facts of this case should lead the Authority to the conclusion that this case is more like cases in which the Authority has denied petitions for consolidation. The Activity contends, therefore, that the RD departed from Authority precedent.
As to the second ground for review, the Activity contends that the RD's factual findings as to the activities' missions, chains of command, functional and organizational integration, employee interchange and job similarity, and uniform personnel and labor relations policy were clearly erroneous and prejudicial to the Activity. The Activity asserts that the RD made at least some of his decisions "by accepting the testimony of the sole Union witness," to the exclusion of the "evidence and testimony of Activity witnesses to the contrary." Application at 14. In sum, the Activity contends that the RD's "departures from Authority precedent, and his clearly erroneous decisions . . . prejudicially affect the rights of the Activity," and the Authority should, therefore, grant the application for review. Id.
IV. Analysis and Conclusions
We conclude, for the following reasons, that no compelling reasons exist within the meaning of section 2422.17(c)(1) or (4) of the Authority's Rules and Regulations for granting the Activity's application for review.
As to the Activity's first ground for review, we find that the RD did not depart from Authority precedent. The RD examined the factors set forth in U.S. Department of Justice and concluded that the employees in the proposed consolidated unit share a clear and identifiable community of interest within the meaning of section 7112(a)(1) of the Statute. The RD also set forth clearly the factors he considered in concluding that the consolidation will promote effective dealing with, and efficient operations of, the Agency, as required by section 7112(a)(1). The Activity does not contend that the RD considered or applied improper factors in reaching his conclusions. Rather, the Activity disagrees with some of the RD's factual findings, with the emphasis the RD placed on some of his findings, and with the conclusions he reached from his findings.
As to the Activity's second ground for review, we find that the RD was not clearly erroneous as to any substantial factual issue. As to the activities' missions, we find that the RD's findings are supported by record evidence of the activities' mission statements, and the RD's conclusions as to the similarity of the activities' missions are based on the RD's assessment of record testimony that supports those conclusions.
The RD found that "PSA, NSSF and the Hospital . . . have the same operational chain of command through the [Cmdr. II]," and "the other two [a]ctivities, the Submarine Base and the Submarine School, have command relations and interface coordinated through the [Cmdr. II]." Regional Director's Decision at 12. The Activity asserts that the RD is in error; that the Hospital's operational chain of command is not the same, except for military purposes, as that of PSA and NSSF, and that the Submarine Base does not coordinate through, but rather reports directly to, Cmdr. II. The record supports the Activity's assertions as to these two findings of the RD. However, we find that these errors are not substantial enough to warrant overturning the RD's conclusions drawn from the remainder of his factual findings. With regard to functional and organizational integration, employee interchange, and job similarity, the Activity urges that the RD placed too much emphasis on some facts to the exclusion of others. We find that the Activity has not shown that the RD was clearly erroneous in his findings in this regard. The Activity also disagrees with the RD's factual conclusion that CCPO establishes common or uniform policies regarding personnel and labor relations for all five activities. The RD fully discussed the testimony as to the alleged discretion of each activity, nonetheless concluding on the weight of the evidence that "such discretion appears to be largely theoretical and is rarely, if ever, actually exercised." Id. at 13. We find that the RD's conclusion in this regard is not shown to be clearly erroneous.
In sum, we find that the Activity has not shown that a substantial question of law or policy has been raised by the RD's decision because of a departure from Authority precedent, and has not shown that the RD's decision on any substantial factual issue was clearly erroneous and that such error prejudicially affected the rights of the Activity.
The application for review is denied. We sustain the Regional Director's conclusion that the consolidated unit sought by NAGE under section 7112(d) of the Statute is appropriate under the criteria of section 7112(a)(1). The Regional Director is directed to take appropriate action pursuant to section 2422.2(h) of our Regulations.
The RD stated, at 6-7 of his decision, that the support agreements between CCPO and the tenant activities provided for CCPO to furnish the following civilian personnel services to each of the activities:
- recruitment for position vacancies;
- development of qualification and physical standards;
- determining qualification of candidates for vacancies and/or position changes;
- contacting and screening of eligibles and referral to selecting officials;
- monitoring selections for appointments and position changes for compliance with regulatory and procedural requirements;
- preparation, processing and documentation of personnel actions to effect appointments, position changes and separations;
- developing and administering the merit promotion program;
- developing and administering the position classification program;
- providing guidance in placement and utilization of employee skills and providing for appraisal of employees' performance, conduct and general character traits during probationary or trial period;
- processing periodic step increases;
- developing reduction-in-force registers, administering retention preference regulations and conducting reductions-in-force;
- developing and administering performance evaluation and appraisal programs;
- developing and administering and incentive awards program;
- providing staff assistance in dealing with labor organizations;
- determining eligibility for and processing retirements;
- processing employee death cases and determining survivor benefits;
- developing disciplinary standards and monitoring disciplinary actions for compliance with authorized procedures and penalties, and preparing and processing necessary disciplinary documents for signature by appropriate line officials;
- advising employees regarding their rights in connection with appeals, grievances, life insurance benefits, leave privileges;
- providing civilian personnel counseling services to employees;
- maintaining official civilian personnel folders, service record cards, performance rating records, poison control files and records, records of qualification standards, and other required records;
- preparing required reports on civilian personnel matters;
- interpreting laws regulations and instructions relating to civilian personnel matters;
- providing staff leadership and guidance in development and execution of civilian personnel policies, programs and procedures designed to meet the activities' need and to comply with requirements of higher authorities; and
- advising on programs/issues involving equal employment opportunity, affirmative action, employer-community relations and EEO complaint processing and disposition.
(If blank, the decision does not have footnotes.)
1. The term "Activity" when used in this decision refers collectively to the Naval Submarine Base and the four listed tenant activities.
2. NAGE amended its petition to exclude the bargaining unit at the Branch Commissary Store New London (Commissary) because the Commissary is now part of a newly-created, separate agency, the Defense Commissary Agency.
3. The Hospital did not participate in multi-unit negotiations, and its employees have historically been covered by separate collective bargaining agreements. The RD stated that no explanation was offered by either party for the Hospital's exclusion from multi-unit negotiations.
4. According to the RD, these descriptions of the activities' chains of command reflect operational lines of authority. The RD noted that the record shows that the Hospital and PSA also have second lines of command for funding purposes. The Activity's challenge to certain of the RD's findings as to the chains of command is discussed below.
5. Unlike other personnel and labor relations functions, payroll functions are not centralized. The Submarine Base, NSSF, and PSA receive payroll services from a payroll servicing facility at Norfolk, Virginia; the Submarine School from a facility at Pensacola, Florida; and the Hospital from a facility at Great Lakes Naval Station, Illinois. However, the Submarine Base collects employee time cards from the tenant activities and forwards them to the appropriate servicing payroll office for processing.
6. The RD found that "[i]t appears that the tenant activities are required under applicable Department of Defense and Department of the Navy regulations to enter into these support agreements with the Submarine Base and CCPO." Id. at 7.
7. The CCPO Manual establishes a separate competitive area for each of the activities.
8. Section 7112(d) provides:
Two or more units which are in an agency and for which a labor organization is the exclusive representative may, upon petition by the agency or labor organization, be consolidated with or without an election into a single larger unit if the Authority considers the larger unit to be appropriate. The Authority shall certify the labor organization as the exclusive representative of the new larger unit.
Section 7112(a)(1) provides, in pertinent part:
The Authority . . . shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of, the agency involved.