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53:0287(39)RO - - Army, HQ Fort Dix, Fort Dix NJ and International Brotherhood of Police Officers, NAGE and AFGE Local 1999 - - 1997 FLRAdec RP - - v53 p287

[ v53 p287 ]
The decision of the Authority follows:

53 FLRA No. 39
















(Labor Organization)




August 22, 1997


Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

The American Federation of Government Employees, Local 1999 (AFGE) filed a timely application for review of a decision and order of the Regional Director (RD). The RD had granted Petitioner International Brotherhood of Police Officers' (IBPO's) request for an election pursuant to section 2422.1(a) of the Authority's Regulations.(1) The RD did not permit AFGE to participate in the election, on the ground that AFGE was not the incumbent labor organization and had not otherwise intervened in the case. AFGE also requested that the Authority stay the RD's decision while its application for review is pending.(2)

For the reasons that follow, we grant review under section 2422.17(c) and conclude that the RD erred in finding that AFGE is not the incumbent labor organization. We vacate the recently held election and remand the case to the RD for a determination of whether an election, with both IBPO and AFGE on the ballot, should be conducted.

II. Background

A. Labor Management Activity at Fort Dix

Fort Dix is a Department of the Army facility located in New Jersey. The Fort is utilized for training, serves as a mobilization point for troops headed overseas, and provides logistical support for other U.S. Army areas. The Fort employs a civilian and military workforce. Since 1971, AFGE has represented a bargaining unit of employees defined as "all non-supervisory Class[ification] Act employees under the jurisdiction of the Commanding General, U.S. Army Training Center, Fort Dix, New Jersey," with the exclusion of wage grade employees, firefighters, professionals, and the employees of several other agency components.(3)

The employees at issue in this case are approximately 25 police officers and criminal investigators classified in the GS-083 and GS-1811 series, respectively (hereafter the police officers). The police officers work for the Department of Defense Police Department, which was established at the Fort in late 1995 as part of an Army initiative to limit the use of military police at home ports and utilize civilian personnel instead.

Prior to 1995, virtually all security functions at the Fort were handled by the Provost Marshall's office, which was headed by a military officer and staffed by as many as 120 military personnel. The Provost Marshall's office also employed approximately 19 civilian employees in such positions as radio dispatchers, desk clerks, administrative clerks, inspectors, and secretaries. AFGE and the Activity considered the civilian employees working for this office to be included in the AFGE bargaining unit and certain of them were members of the union on automatic dues deduction.

From 1984 to 1992, the Provost Marshall's office also employed between two and five civilian police officers in the GS-083 series. These employees acted as the AWOL Apprehension/Civil Liaison Officers, whose main duty was to assist in the apprehension and return of active duty military personnel who were AWOL. AFGE and the Activity also considered these employees to be included in the AFGE bargaining unit. At least one of them was an AFGE member who had union dues automatically deducted from his pay and who participated in the negotiation of a collective bargaining agreement. In addition, AFGE discussed with the Activity several employment disputes concerning the officers' dress requirements and vehicle use, which were resolved without the filing of formal grievances.

In December 1995, the Activity established the civilian DOD Police Department. The Department is headed by the Chief of Police, who reports directly to the Fort's Garrison Manager and its Commander, the individuals generally responsible for the operation of the Fort. The Department's personnel and labor relations functions are handled by the Fort's civilian personnel office. The police officers are subject to the same general personnel policies as other employees, including the pay, leave administration, performance management, and disciplinary systems. They are also subject to certain distinct personnel requirements, such as 80 hours of law enforcement training and firearms certification. Many of the police officers also work unusual shifts that are necessary to provide 24-hour police protection at the Fort.

The DOD Police Department also employs approximately 15 non-supervisory employees who do not work in the police officer job series, such as vehicle dispatchers and clerks. The RD found that there is "minimal interaction and interchange" among the police officers and these employees, "other than when they are involved in the execution of their official duties[.]" RD Decision at 9. There is no dispute that these employees are included within the non-professional, GS AFGE bargaining unit.

Soon after the Department was established, one police officer inquired concerning his bargaining unit status and was informed by the Activity that he was not represented by a union. He and another officer, who had been an official of an IBPO union local in Bayonne, New Jersey, then contacted IBPO seeking representation. IBPO responded by sending the employees organizing material and authorization cards, which they distributed and collected. The Activity now maintains that the information provided to the officers was erroneous and that they are included in the AFGE bargaining unit.

B. The Proceeding Below

IBPO filed a petition with the FLRA's Boston Regional Office requesting to represent all police officers at Fort Dix. Subsequently, the RD notified AFGE that he "had been informed that your organization is the currently recognized exclusive representative of these employees" and that AFGE would be "deemed an intervenor . . . unless it serves on the Regional Director a written disclaimer of any representation interest in" the employees. Letter from Regional Director to President, AFGE, Local 1999 (Feb. 22, 1996).

IBPO filed an objection to the RD's grant of intervenor status to AFGE, asserting that neither AFGE nor the Activity had submitted evidence that AFGE was the exclusive representative of the police employees. AFGE responded that its bargaining unit was defined to include all non-supervisory GS employees at Fort Dix and supplying additional information. There is no indication in the record that the Regional Office acted on IBPO's objection prior to the issuance of the RD's Decision.

III. The Regional Director's Decision

In his decision, the RD identified the following issues as central to resolving the petition:

A. [Whether] [t]he amended unit sought by the IBPO is an appropriate unit for purposes of exclusive recognition, and;

B. Whether the employees sought to be represented by the IBPO are already covered by the Activity's base-wide non-professional General Schedule unit represented by the AFGE, and;

C. In the alternative, if the petitioned for unit of employees is deemed to be part of the base-wide non-professional General Schedule unit represented by the AFGE, has the AFGE abandoned these employees which would permit severing the employees from the base-wide non-professional unit?

RD Decision at 2-3.

With respect to the first issue, the RD stated that the Authority determines a bargaining unit to be appropriate only where "1) the employees in the unit sought share a clear and identifiable community of interest; 2) the unit will promote effective dealings with the agency; and, 3) the unit will promote efficiency of the operations of the agency." Id. at 9. He found that the police officers have a separate "community of interest" from the other employees in the AFGE unit, on the grounds that the DOD Police Department has a distinct mission within the agency, that the police employees have unique duties and schedules, and that they have limited interaction with other employees in the bargaining unit. The RD also noted that the DOD Police Chief has the responsibility for the day-to day operations of his Department and makes "most of the final decisions affecting employees in his Department." Id. at 10. He found the last two components of the test satisfied on the ground that there was no evidence that an additional bargaining unit of police would hinder the efficiency or effectiveness of operations, as the Activity already engages in labor relations activity with two other local bargaining units, including fire fighters.

Concerning the second issue, the RD held that AFGE's assertion that it was the incumbent union was, in essence, a claim that these employees had "accreted" to the unit on the creation of the DOD Police Department in 1995. He rejected that conclusion, for several reasons. The RD found that civilian police officers employed by the military police from 1984-92 were not included in the AFGE unit because, although AFGE "was involved in some aspects of labor relations on behalf of" these employees, there was "insufficient evidence" of "formal representation." Id. at 11. In addition, he noted that "neither the AFGE nor the Activity attempted to clarify the existing non-professional General Schedule base-wide unit during the 1984-1992 time frame." Id.

The RD also determined that the civilian police officers hired in 1995 were a "separate category" of employee from the earlier police officers, because they performed different duties. RD Decision at 12. He also noted that the police officers were hired 25 years after the certification was issued to AFGE, that "guards" had not been included in units with other employees at the time of certification, and that the police officers shared a separate community of interest. Id. He found that these facts rendered accretion into the AFGE unit "inappropriate." Id.

Third, the RD noted that it was not necessary to consider whether the employees had been "abandoned" by AFGE, in light of his determination that they were never part of the AFGE unit.

Having determined that the police unit was a separate appropriate unit and that it had not accreted to the AFGE unit, the RD also determined that "the unit represented by the AFGE would still remain an appropriate unit with the addition of police officers and criminal investigators." Id. at 13. The RD further found that "the principle of self-determination should prevail to permit the employees the opportunity to select their representative of their choice, or no representative at all." Id.

The RD then ordered an election in which the employees could chose between IBPO and remaining unrepresented. He did not permit AFGE to be included on the election ballot, because AFGE was not the incumbent union and it had "failed to intervene in the petition[.]" Id. at 13.

IV. Positions of the Parties

A. AFGE's Arguments on Appeal

AFGE asserts on appeal that the RD's decision should be reversed because he (1) committed a prejudicial procedural error, (2) committed a clear and prejudicial error concerning a substantial factual matter, and (3) failed to apply established law. 5 C.F.R. 2422.31(c)(2), 3(ii), 3(iii) (1997).(4) AFGE argues that it should automatically be permitted to participate in any election concerning these employees, because it submitted evidence that it was their recognized incumbent representative. In addition, AFGE claims that it intervened in the case as the representative of "any of the employees involved." 5 C.F.R. 2422.5 (1995).

AFGE also claims that the RD misapplied the accretion doctrine. According to AFGE, the RD indicated that the employees in question are part of an appropriate base-wide unit at one point in the decision, yet he rejected this same finding in assessing the accretion issue. Further, AFGE asserts that the RD misapplied the requirement that accretion be permitted where there is a "substantial change" in job duties of employees specifically excluded from a bargaining unit, because he found that there was a substantial change in the duties of the police here, but refused to find accretion.

B. IBPO's Opposition

IBPO opposes AFGE's petition, arguing that the RD's decision and reasoning are correct. It asserts that the petitioned-for unit is appropriate and had not accreted to AFGE's base-wide unit. Further, IBPO agrees that it was appropriate to exclude AFGE from the election ballot once it was determined that it was not the incumbent, because AFGE had not otherwise intervened in the case.

V. Analysis and Conclusions

A. Introduction

The RD held that AFGE is not the incumbent union of the police employees at issue, on the ground that these positions had not accreted to AFGE's unit. AFGE asserts in its application for review that the RD's finding that it is not the incumbent union is a prejudicial legal, factual, and procedural error. We grant review and, for the following reasons, conclude that AFGE is the incumbent union.

B. New Employees Whose Positions Are Included in an Existing Bargaining Unit Are Automatically Included in That Unit

New employees are automatically included in an existing bargaining unit where their positions fall within the express terms of a bargaining certificate and where their inclusion does not render the bargaining unit inappropriate. See U.S. Department of the Air Force, Carswell Air Force Base, Texas, 40 FLRA 221, 229-30 (1991) (Carswell Air Force Base); U.S. Army Air Defense Artillery Center and Fort Bliss, 31 FLRA 938 (1988); U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Northeast Region, 24 FLRA 922, 926 (1986) (NOAA). Carswell Air Force Base illustrates this principle in a context similar to this case. There, the Authority held that a group of firefighters hired several years after the union's certification had issued became part of the unit. The Authority adopted the RD's rationale that they "shared a community of interest with all nonsupervisory, nonprofessional civilian employees at [the Activity], and because they fell under the express terms of the unit description, [they] became part of the established bargaining unit from the time they were hired." Carswell Air Force Base, 40 FLRA at 229, 223-24.

Since 1970, AFGE has been the certified bargaining representative of all non-professional GS employees under the jurisdiction of the Fort's Commanding General, with certain specific exceptions. There is no dispute that the police employees who filed the instant petition are non-supervisory GS employees who fall within the express terms of the AFGE certification. Further, the RD found that "the unit represented by the AFGE would still remain an appropriate unit with the addition of police officers and criminal investigators." RD Decision at 13. This conclusion is supported by the record. Thus, the newly hired police officers are included in the AFGE unit.

The inclusion of the police officers in the AFGE unit is buttressed by the fact that AFGE and the agency considered civilian employees of the military-run Provost Marshall's office during the pre-1995 period to be automatically included in AFGE's bargaining unit. The record indicates that AFGE acted as the representative of these employees and that police officers and other employees of that office were permitted to participate in automatic dues deduction, a right only accorded members "in an appropriate [bargaining] unit." 5 U.S.C. 7115(a).

In reaching the contrary conclusion -- that the police officers were not in the AFGE bargaining unit -- the RD found "insufficient evidence" that the Provost Marshall employees were members of the AFGE bargaining unit because neither AFGE nor the agency attempted to clarify the existing bargaining unit during the 1984-1992 time period that police officers were previously employed at the Fort. However, where new categories of employees who are covered by the existing unit are hired, no petition to clarify the unit is necessary to include them in the unit. Carswell Air Force Base, 40 FLRA at 229; see NOAA, 24 FLRA at 927. If the union and the agency agree that the bargaining unit description covers the employees, there is nothing for the FLRA to clarify and no need to file a petition asking the FLRA for a clarification of the unit.

The RD also based his conclusion on "insufficient evidence of any formal representation" of these employees during the pre-1995 period. However, there is no requirement that a union take specific "formal" action to carry out its representational responsibility to new employees who are covered by its contract. The number of civilian employees hired by the Provost Marshall office was not numerous and there is no indication that AFGE failed to carry out its normal representational obligations to these employees.

The RD further held that the police employees hired in 1995 were a "separate category" of employees from those employed earlier, because the earlier officers were principally responsible for AWOL apprehension and Civil Liaison, while the newly hired employees have primary police functions. However, no authority is cited or apparent for concluding that the fact that these employees have different job duties from the police officers hired during the 1980's affects their status as members of the AFGE bargaining unit. We find, therefore, that new police employees hired in 1995 are no less covered by the terms of the bargaining unit certification than the employees hired in the 1980's.

In addition, we reject the RD's suggestion that the passage of 25 years from the issuance of AFGE's certificate, and the exclusion of "guards" from bargaining units with other employees under Executive Order 11491 in the early 1970's, foreclosed the inclusion of these positions in the AFGE unit. Bargaining unit certifications do not become stale over time, if they continue to accurately describe the organization and employees within their scope. Cf. 5 C.F.R. § 2422.32(b) (grounds on which a certification may be revoked do not include age of certification). In addition, as with AFGE's alleged failure to seek clarification of its unit, discussed above, once the rules governing the inclusion of guards in a base-wide unit changed, AFGE was not required to take any action to include in its bargaining unit newly hired civilian police employees who fell within the express terms of its certification.

Finally, in concluding that these employees are not included in the AFGE bargaining unit, the RD relied on the Authority's accretion doctrine, which permits positions that are outside a bargaining unit to become part of a unit without an election. However, since the police officer positions were never outside the AFGE unit, the accretion doctrine does not apply. NOAA, 24 FLRA at 926.(5)

C. A Remand Is Necessary To Permit the Regional Director To Determine Whether Severance of These Employees From the AFGE Unit Is Appropriate

Because we have determined that the police officers hired at Fort Dix in 1995 are included within the AFGE bargaining unit, they are permitted to sever their ties to this unit only if: (1) they constitute a separate appropriate bargaining unit; and (2) they establish that there are unusual circumstances justifying the severance. See U.S. Department of the Treasury, Bureau of Engraving and Printing, 49 FLRA 100, 106-08 (1994) (Bureau of Engraving and Printing); Library of Congress, 16 FLRA 429, 431 (1984).

The RD made the factual findings necessary to establish the first part of this test when he determined that the police officers constitute a separate appropriate bargaining unit. The Authority has approved separate bargaining units based on functional groupings of employees and has indicated that police officers may fall into this category. Bureau of Engraving and Printing, 49 FLRA at 108. We find nothing in the record that contradicts the RD's finding that this group of employees would constitute a separate appropriate unit.

The RD did not make findings necessary to resolve the second part of the test. Accordingly, we remand to the RD to consider whether this case presents unusual circumstances that warrant severance of the police officers from the AFGE bargaining unit. The circumstances to examine include IBPO's claim that AFGE has abandoned these employees and other circumstances unique to the case. See Bureau of Engraving and Printing, 49 FLRA at 107-08 (setting out unusual circumstances); U.S. Department of Veterans Affairs, Washington, D.C., 35 FLRA 172, 180 (1990).

In the event the RD concludes that unusual circumstances exist, severance would be appropriate and an election would be necessary. The fact that AFGE is the incumbent union and has not disclaimed interest in representing these police officers dictates that it would be entitled to be on the ballot as a representation alternative. In this respect, this situation is similar to cases where a smaller bargaining unit of employees has been combined with a larger bargaining unit in a reorganization and the smaller unit has petitioned to remain separate. See Defense Logistics Agency, Defense Contract Administration, Services Region Cleveland, Defense Contract Administration Services Plant Representative Office, Goodyear Aerospace, Akron, Ohio, 15 FLRA 962, 965 (1984) (Defense Logistics Agency); Department of the Navy, Naval Station Norfolk, Virginia, 14 FLRA 702, 705 (1984). In those cases, the Authority ordered a "self determination election," in which the employees signify their preferences both for representation and for unit structure by selecting among one union representing a larger unit, another union representing a smaller unit, or no union at all. Id.; Defense Logistics Agency 15 FLRA at 965; see also U.S. Department of Labor, Pension and Welfare Benefits Administration, 38 FLRA 65, 73 (1990); Department of the Air Force, 6th Missile Warning Squadron, Otis Air Force Base, Massachusetts, 3 FLRA 112 (1980). However, the appropriate course of action in this case will depend on the facts found on remand and on the positions of the parties.

VI. Order

The election ordered by the RD is vacated and the petition is remanded to the RD. The RD is directed to take appropriate action consistent with this decision.

(If blank, the decision does not have footnotes.)

1. This case was decided under the Authority's Regulations in effect prior to March 15, 1996. The revised representation Regulations that became effective on that date apply only to petitions filed on or after March 15, 1996, and, therefore, do not apply in this case, which was filed on February 7, 1996. See Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 938 n.6 (1996).

2. The election ordered by the Regional Director was held prior to the Authority's receipt of AFGE's petition, mooting AFGE's request for a stay. It is, of course, not possible for the Authority to act on stay motions where the request is not filed prior to the act to be stayed.

3. AFGE also holds a separate certificate of all wage grade employees at the Fort. With respect to the term "Classification Act Employees", that Act, 5 U.S.C. 5101, et seq., defines the level of skills, knowledge and abilities necessary for a position to be classified at each grade on the General Schedule. 5 U.S.C. 5104. The term "Classification Act employees" is thus synonymous with General Schedule or GS employees, as distinguished from Wage Grade (WG) employees and employees covered by other pay systems. See 5 U.S.C. 5102(c).

4. As noted above, this representation matter is governed by the Authority's pre-1996 regulations, rather than the new regulations cited by AFGE in this portion of its application. Although AFGE presented its arguments in terms of the 1996 regulations, the arguments are cognizable under the prior regulations, which provide for review (1) where there has been a departure from authority precedent on a substantial question of law, (2) where "any ruling made in connection with the proceeding has resulted in prejudicial error," and (3) where the RD's decision "on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of a party." 5 C.F.R. 2422.17(c)(1),(3),(4) (1995).

5. In one recent case, the FLRA did characterize the creation of new positions in a unit as an "accretion." U.S. Department of Commerce, Patent and Trademark Office, 39 FLRA 96 (1991) (PTO); see also Department of the Air Force, 6th Missile Warning Squadron, Otis Air Force Base, Massachusetts, 3 FLRA 112, 113 (1980) (rejecting intervenor's accretion argument on other grounds). In PTO, the FLRA permitted positions in a satellite office that were within the terms of a nation-wide unit to be included in the unit. This result is consistent with our determination in the instant case. To the extent, however, that PTO implies that the accretion doctrine applies to newly created positions that are covered by an existing bargaining unit description, it is inconsistent with Carswell Air Force Base and NOAA, and we clarify that accretion does not apply in such circumstances.