[ v53 p1114 ]
The decision of the Authority follows:
53 FLRA No. 89
FEDERAL LABOR RELATIONS AUTHORITY
DEFENSE LOGISTICS AGENCY
DEFENSE SUPPLY CENTER COLUMBUS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, AFL-CIO
DECISION AND ORDER ON REVIEW
January 7, 1998
Before the Authority: Phyllis N. Segal, Chair, Donald S. Wasserman and Dale Cabaniss, Members.(1)
I. Statement of the Case
In Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Ohio, 53 FLRA 5 (1997) (Defense Supply Center), the Authority granted an application for review in this case filed by the American Federation of Government Employees, AFL-CIO (AFGE). The Authority found that AFGE had raised genuine issues disputing whether the Regional Director (RD) correctly applied principles relating to the appropriateness of units, successorship, and accretion in determining the representational status of employees in two job series, GS-1670 equipment specialists and GS-1910 quality assurance specialists (the specialists).
In granting the application, the Authority found an absence of precedent that applies in circumstances where a union seeks to continue to represent employees who have been geographically relocated to an activity and the positions they encumber are specifically both excluded from the unit represented by that union and included in the description of a unit represented by another union. The Authority directed the parties to file briefs addressing certain questions. Defense Supply Center, 53 FLRA at 14-15. Interested persons were subsequently given an opportunity to submit briefs as amicus curiae addressing those questions. 62 Fed. Reg. 32608 (July 16, 1997). Pursuant to our order granting review, AFGE, the International Federation of Professional and Technical Engineers, AFL-CIO (IFPTE), and the Activity filed supplemental briefs. However, no briefs as amicus curiae were filed.
For the following reasons, we conclude that a self-determination election must be held in which the disputed employees have the opportunity to vote for AFGE or IFPTE and to vote whether to be represented in a separate bargaining unit of specialists or the consolidated unit. We remand the case to the RD to take action consistent with our decision.
II. Background and RD's Decision
AFGE is the exclusive representative of a nationwide consolidated bargaining unit consisting of approximately 31,000 employees of the DLA (the consolidated unit). Included in the consolidated unit are approximately 2,110 employees at the Activity, the mission of which is to supply materiel management support to military departments and other Department of Defense (DOD) components. The portion of the consolidated unit encompassing employees at the Activity specifically excludes the specialists,(2) who have been represented in a separate unit since 1968 by IFPTE (the IFPTE specialists). The unit represented by IFPTE currently includes 198 employees. AFGE seeks to include in its consolidated unit at the Activity the specialists, who encumber positions that are excluded from the AFGE consolidated unit at the Activity and included in a unit represented by IFPTE.
Prior to 1994, the specialists at the Activity worked separately from employees in other disciplines (the other employees). In 1994, a reorganization occurred throughout the DLA that resulted in the creation of interdisciplinary teams. The placement of specialists on interdisciplinary teams increased their interaction with the other employees. The Activity has provided the specialists multi-skill training to better understand the functions of other employees on their team. However, the specialists perform the same duties and functions as before the change. Also in 1994, a unit of approximately 1600 employees at Dayton Supply Center, Dayton, Ohio (Dayton Supply Center), which included specialists (the AFGE specialists), was certified for inclusion in AFGE's consolidated unit.(3)
Effective June 1996, the Dayton Supply Center was disestablished and certain of its workload was transferred to the Activity. Officials in Dayton identified 1440 positions that would be needed at the Activity to accomplish the work that was transferred to the Activity, developed a retention listing of employees who would be otherwise separated in the disestablishment, and began offering these employees the available positions at the Activity. This practice was halted by the DOD central personnel office, which advised the local Dayton officials that the selection of individuals to perform this relocated work should be accomplished through the DOD Priority Placement Program (PPP). The PPP is designed to place DOD employees who have been adversely affected by a reduction-in-force action or a "declination of a transfer of function, outside the commuting area" in open positions in the agency.
The Dayton Supply Center employees were placed under the PPP and many of them obtained jobs at the Activity. During the summer of 1996, 970 Dayton employees accepted jobs at the Activity and reported for duty there; 212 of those employees are AFGE specialists. The former Dayton employees, including the 212 AFGE specialists, were placed in newly created positions within the Activity based on their qualifications, as determined by their PPP registration status. According to the RD, the employees were not generally placed in the same positions that they encumbered at the Dayton Supply Center and they did not always work under the same supervisor. Nonetheless, the evidence establishes that, overall, these employees perform the same duties and functions at the Activity as they had at the Dayton Supply Center.
In October 1996, AFGE filed the petition in this case, seeking to clarify its consolidated unit at the Activity to include all the specialists, including the 212 AFGE specialists and the 198 IFPTE specialists.(4) According to AFGE, the 1994 reorganization at the Activity eliminated the separate community of interest previously shared by the IFPTE specialists and resulted in an accretion of those employees into AFGE's consolidated unit. AFGE contends that since 1994 only one unit covering these employees has existed at the Activity and that, as a result, the IFPTE specialists and all employees placed in Activity positions after the subsequent disestablishment of the Dayton Supply Center are appropriately included in that unit. The parties did not contest the status of the remaining former Dayton employees as part of the AFGE consolidated unit and this case only addresses the status of the AFGE and IFPTE specialists.
B. The RD's Decision
The RD concluded that the unit represented by IFPTE is an appropriate unit, consistent with section 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute). The RD found that the IFPTE unit has a history of stable labor-management relations and is covered by an agreement. The RD also stated that the Activity and IFPTE agree that it is an appropriate unit.
The RD concluded that the AFGE specialists are properly included in the IFPTE unit. The RD reasoned that those employees "are no different than a group of new hires in these categories who by operation of IFPTE's unit description are included in the unit from the beginning of their employment." RD's Decision at 6 n.4.
The RD rejected AFGE's contention that after the 1994 reorganization the IFPTE specialists accreted to the AFGE consolidated unit. Citing U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, Allen Park, Michigan, 43 FLRA 264 (1991) (Allen Park), the RD noted that a petitioner seeking to include employees originally excluded from a unit must provide evidence that meaningful changes in the duties and functions of such employees occurred after the unit was recognized or certified. The RD found that the IFPTE specialists were expressly excluded from AFGE's unit description. The RD further found that while the 1994 reorganization had affected the Activity's organizational structure, it had little effect on the specialists' duties, functions, or job circumstances.
Finally, the RD rejected AFGE's alternative contention that the Activity is a successor employer to Dayton Supply Center and that, therefore, AFGE retained its status as the exclusive representative of the 212 AFGE specialists. Citing United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950 (1997) (FISC), the RD stated that the Authority has held that "for successorship purposes, it must initially be shown that the transferred employees are included in, and represent a majority of the employees, in a separate appropriate unit in the new employing entity." RD's Decision at 6. Examining the total complement of former Dayton employees who had relocated to the Activity, the RD concluded that, based on the evidence before him, they did not constitute a separate appropriate unit because they did not share a community of interest separate and apart from the employees in the IFPTE and AFGE units.
Based on the foregoing, the RD dismissed the petition.
III. Positions of the Parties
AFGE contends that the RD erred in determining that the IFPTE unit remained appropriate after the 1994 reorganization. AFGE asserts that the IFPTE unit is not appropriate because all of the specialists share a clear and identifiable community of interest with the other employees in AFGE's consolidated unit at the Activity. Further, AFGE asserts that having two separate units at the Activity does not provide for effective dealings with, and efficiency of operations of, the Activity. Thus, AFGE asserts that the employees in the IFPTE unit "should have been accreted into AFGE's bargaining unit." Application for Review at 19 (emphasis removed).
According to AFGE, there is no time limit for raising the issue regarding the effects of the 1994 reorganization on the IFPTE unit because the Authority has the sole responsibility for determining an appropriate unit. AFGE also notes that the Authority has held that decisions regarding unit determinations must reflect conditions of employment existing at the time of the hearing.
AFGE maintains that the AFGE specialists are not similar to new hires because there was no break in their service. AFGE also contends that the RD's determination that these specialists are properly included in the IFPTE unit is contrary to Authority precedent concerning accretion and severance. AFGE argues that the RD improperly found that a numerically superior group of 212 AFGE specialists had accreted to the IFPTE unit of 198 specialists. Additionally, AFGE claims that, by accreting the former Dayton specialists to the IFPTE unit, the RD in effect improperly severed those employees from the AFGE consolidated unit.
AFGE further contends that the RD's determination that the Activity is not a successor employer to the Dayton Supply Center is based on the RD's misapplication of the principles concerning successorship set forth in FISC and Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme). AFGE argues that the RD failed to apply the successorship principles to a unit comprised of all specialists. AFGE also argues that including the 212 AFGE specialists in the IFPTE unit, under successorship principles, would not give rise to a question concerning representation because those employees outnumber the 198 specialists in the IFPTE unit.
IFPTE maintains that "any accretion issue raised by the 1994 reorganization should have been raised at that time if at all." Intervenor's Opposition at 10 n.1. IFPTE contends that the 1994 reorganization did not result in recent, substantial changes in the duties and functions of the specialists in its unit and, therefore, that there is no basis to include them in the consolidated unit.
IFPTE also contends that successorship principles do not apply in this case because the 212 AFGE specialists were displaced and then hired under the DOD PPP. IFPTE further contends that the petition raises a question concerning representation because it seeks to accrete employees who are specifically excluded from a unit and, therefore, must be supported by a petition supported by a showing of interest of employees. IFPTE adds that the sought-after unit would be comprised of employees who are currently represented by two different unions.
The Activity contends that successorship principles do not apply to this case because the total complement of former Dayton employees who relocated to the Activity do not constitute a separate appropriate unit at the Activity. The Activity also argues that the relocation of those employees did not constitute a transfer for the purpose of successorship. In this regard, the Activity asserts that the employees were not placed in the Activity as a "unit" and involved in a transfer of function. The Activity also states that the employees were not necessarily placed in the same positions they encumbered at the Dayton Supply Center nor under the same supervisors.
The Activity maintains that the IFPTE specialists accreted to the consolidated unit because the employees in those positions share a community of interest with the other employees in that unit. The Activity adds that, although labor-management relations with two units at the Activity have been effective, one unit would further promote effective dealings and efficiency of operations. The Activity requests that the Authority adopt a standard whereby the Authority determines the most appropriate unit under section 7112(a).
Finally, the Activity maintains that accreting the specialists to the AFGE consolidated unit would not raise a question concerning representation because AFGE would represent a predominate number of the employees in that proposed unit.
IV. Analysis and Conclusions
A. The FISC Framework
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 section 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, 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, we 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.
Department of the Navy, Naval Supply Center, Puget Sound, Bremerton, Washington, 53 FLRA 173, 178-79 (1997) (Bremerton); FISC, 52 FLRA at 958-59.
The issue of the effect of the 1996 relocation on the representational status of the AFGE specialists involves competing claims of successorship and accretion. Therefore, we apply the framework developed in FISC to these issues.
B. The Transferred Employees Are Included in, and Constitute the Majority of, an Appropriate Bargaining Unit
The first FISC factor includes three requirements relevant to this case: (1) at least a portion of a recognized unit must be transferred; (2) the transferred employees must be included in a separate appropriate unit; and (3) the transferred employees must constitute a majority of the new unit.
We note that our inquiry into the second of these requirements involves two separate factual issues. In addition to the effect of the 1996 realignment involving the Dayton Supply Center and the Activity on these bargaining units, AFGE presents the argument that the IFPTE specialists had accreted to its unit two years earlier in a reorganization. This argument disputes the underlying appropriateness of the specialist bargaining unit at the Activity and is properly part of the second requirement, which involves an evaluation of the bargaining units in the gaining agency.(5)
We address the effect of the 1994 reorganization separately at the beginning of our analysis because this issue is distinct from the other issues in the case relating to the 1996 realignment, and because a resolution of this issue in the manner argued by AFGE would resolve the case in its entirety. If the IFPTE specialists accreted into the consolidated unit in the 1994 reorganization, then there was no separate bargaining unit consisting of these employees in 1996. If there was no separate bargaining unit, then the 212 AFGE specialists would, like the approximately 758 uncontested employees, simply have remained within the AFGE consolidated unit on changing location. As a practical matter, this accretion would eliminate the need to perform the FISC analysis at all, since the AFGE specialists would not be transferred to a successor unit, but would simply remain in the same consolidated unit that they were members of in Dayton. With this perspective, we now consider the issue of the appropriateness of the IFPTE unit.
1. The 1994 Reorganization Did Not Result in the Accretion of the Specialists to the AFGE Consolidated Unit at the Activity
As an initial matter, we reject IFPTE's claim that we cannot examine the effects of the 1994 reorganization because AFGE did not raise the issue in 1994 and, therefore, acquiesced in the continued exclusion of the specialists from its consolidated unit. To support its argument, IFPTE relies on United Parcel Service, 303 NLRB 326 (1991) (UPS). UPS and the D.C. Circuit case which affirmed it, Teamsters National United Parcel Service Negotiating Committee v. NLRB, 17 F.3d 1518 (D.C. Cir. 1994), hold simply that union acquiescence in the exclusion of employees from a bargaining unit is properly "a factor in determining whether a group of employees was in fact historically excluded from a bargaining unit." Id. at 1522. This authority does not impose a rule that the impact on bargaining units of job changes must be immediately raised or forever waived.
In any event, such a rigid rule would be inconsistent with the Authority's practice of making appropriate unit determinations based on a case-by-case application of the criteria set forth in Section 7112(a)(1) of the Statute. See HHS, Region II, 43 FLRA at 1254. Past changes to the work of employees may have an impact on their community of interest and are appropriately taken into account.
Turning to AFGE's argument, we agree with the RD's conclusion that the 1994 reorganization of the work of the IFPTE specialists did not eliminate their status as a separate appropriate bargaining unit. Employees such as these, who are specifically excluded from the unit description in a bargaining certificate, may only be accreted into that unit where there have been "meaningful changes" in the employees' duties, functions, or job circumstances that eliminate the original distinctions between employees and thus warrant their inclusion into the unit. Federal Trade Commission, 35 FLRA 576, 583-85 (1990) (FTC). In the absence of such a demonstration, an election, with the requisite showing of interest, is required to add the group of employees to the unit. See U.S. Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 111, 117 (1991) (Langley).
The record supports the RD's finding that the Activity's reorganization to interdisciplinary teams in 1994 did not substantially change the duties, functions, and job circumstances of the specialists who were excluded from AFGE's unit description. Although those employees worked after the reorganization under a multi-functional supervisor, had increased interaction with other employees, and received multi-skill training to understand the duties of the other employees, the record testimony by managers and employees establishes that they continued to perform the same duties and functions as before the change. Moreover, the reorganization has not resulted in the interchange of jobs among these employees and other employees. In these circumstances, AFGE could not add the IFPTE specialists to its consolidated unit except by an election. See, e.g., Langley, 40 FLRA at 117.
There are additional reasons which support the RD's refusal to find that the specialists accreted to the AFGE consolidated unit as a result of the 1994 reorganization. As the RD found, the IFPTE bargaining unit is a "well-established functional unit" that has a history of stable labor relations with the Activity dating to 1967. "Bargaining history is . . . an important factor in unit determination" and, like the NLRB, we are "reluctant to disturb longstanding bargaining units, . . . when bargaining in those units has been successful." Hardin, The Developing Labor Law 455 (3d ed. 1992), citing Tool Craftsmen v. Leedom, 276 F.2d 514 (D.C. Cir. 1960), cert. denied, 364 U.S. 815 (1980); 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) (DLA) (past bargaining history and current labor-management dealings used to find proposed units appropriate). There is no evidence that this reorganization, by itself, disrupted the parties' stable labor relations history and we find that the reorganization alone does not justify a change in the unit.
Finally, we agree with the private sector rule that accretion is much more difficult to establish where the employees sought to be accreted are represented by a rival union. Lammert Industries v. NLRB, 578 F.2d 1223, 1226 (7th Cir. 1978) (Lammert); Seven-Up/Canada Dry Bottling Co., 281 NLRB 943, 946 (1986) (Seven-Up). This rule is intended to guard against the possibility of "an employer favoring one union over the other in violation of the employer's duty of neutrality." Lammert, 578 F.2d at 1226. Further, it supports the principle that the accretion doctrine is generally narrowly applied, because it precludes employee self determination. Local 144, Hotel, Hospital, Nursing Home & Allied Services Union, SEIU v. NLRB, 9 F.3d 218, 223 (2d. Cir. 1993). This basic reluctance to short-circuit employee self-determination is enhanced where the employees have, in fact, already exercised their right of self-determination and chosen a representative different from the representative seeking to accrete them.
2. The AFGE Specialists Were Transferred to the Activity
In considering whether the specialists were "transferred" within the meaning of FISC, we look to our own precedent, as well as the experience of the private sector. See Port Hueneme, 50 FLRA at 367. For the reasons that follow, we find that the AFGE specialists were transferred and should not be treated as new hires, as found by the RD. Cf. Department of the Army, Headquarters, Fort Dix, Fort Dix, New Jersey, 53 FLRA 287, 294 (1997) (new employees are automatically included in an existing bargaining unit).
We reject the Activity's argument that a determination of whether employees are transferred turns on the nature of the personnel action effected, and that employees technically released from one position and "rehired" under the PPP can not be considered to be transferred.(6) As we explained in Port Huemene, the successorship doctrine focuses on "the employees' perspective[.]" 50 at 372 (quoting Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987) (Fall River)). The employing agency may have any number of technical personnel options for moving work and employees from one Activity to another such as occurred in this case, and a variety of legal and managerial reasons for choosing one option or another. For example, the agency here employed two different personnel rules for moving these employees to the Activity, first creating a retention register and offering reassignments, and then revoking those reassignments and requiring employees to utilize the PPP. The employees' collective bargaining rights should not depend on which personnel option the agency decides is most appropriate to the occasion.
Our case law does not specifically describe the situations under which employees will be considered to be transferred for the purposes of establishing successorship. This is because the situations addressed in these cases involved employees who were "relocated" administratively during reorganizations, and no party challenged that the employees were transferred from one entity to another. See, e.g., Bremerton, 53 FLRA 173; Social Security Administration, District Office, Valdosta, Georgia, 52 FLRA 1084, 1088 (1997) (Valdosta); Port Hueneme, 50 FLRA at 365, 374.
In the private sector, however, a wide variety of factual situations have been found to involve union successorship, and there is no requirement that the employees of the predecessor employer be formally transferred to the gaining employer. In this regard, the National Labor Relations Board (NLRB) initially determines whether a majority of the employees hired by the gaining employer were employees of the predecessor. See NLRB v. Burns International Security Service, Inc., 406 U.S. 272, 281 (1972). The NLRB further determines whether the same employees are doing the same work with the same mission and function, an inquiry that we have incorporated as the second factor of the Port Hueneme successorship test. 50 FLRA at 368; see Fall River, 482 U.S. at 43. The particular financial or organizational basis for the transfer of operations between employers has no bearing on such determinations. See Golden State Bottling Company, Inc. v. NLRB, 414 U.S. 168, 182 n.5 (1973) (NLRB is not required to adopt a distinction based on method of transferring ownership between gaining employer and predecessor, e.g., whether through merger, consolidation, purchase of assets); Capitol Steel and Iron Co., 299 NLRB 484, 487 (1990) (successorship may be found if putative successor is operating predecessor's business in miniature). Thus, for example, in Hydrolines, Inc. and TNT Hydrolines, Inc., 305 NLRB 416 (1991), the NLRB found successorship where the gaining employer assumed only part of the operation of the predecessor and a majority of the unit of the gaining employer's employees was composed of former employees of the predecessor.
As in the private sector, we find that the method used to move the employees from the Dayton Supply Center to the Activity has no bearing on the requirement that they be "transferred" for purposes of FISC. Thus, the term "transferred employees" set forth in FISC is a generic term that refers to any organizational movement of employees within an agency or between agencies, regardless of the method of the reorganization.
In this case, as the AFGE specialists moved from one activity to another through the DOD PPP, they are "transferred employees" within the meaning of FISC, rather than new hires, as found by the RD.
3. The Transferred Employees are Appropriately Included inTwo Separate Units
The first FISC inquiry also requires that the Authority examine whether the transferred employees are included in a separate appropriate bargaining unit. This inquiry involves the application of section 7112(a) of the Statute, which provides that a unit is appropriate if: (1) the employees at issue share a clear and identifiable community of interest; (2) the unit promotes effective dealings with the agency involved; and (3) the unit promotes efficiency of operations of the agency involved. 5 U.S.C. 7112(a); FISC, 52 FLRA at 959. Determinations as to each criterion are made on a case-by-case basis by balancing the relevant factors. Id. at 960. The Authority has set out a variety of relevant factors for these inquiries, but has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. See American Federation of Government Employees, Local 2004, 47 FLRA 969, 972 (1993). Further, what is required under the Statute is an appropriate bargaining unit, not necessarily the only or most appropriate unit. Bremerton, 53 FLRA at 183 n.9.(7)
In determining that the Activity was not a successor employer to the Dayton Supply Center, the RD determined that FISC did not apply because the former Dayton employees "do not share a community of interest separate and apart from the employees in the IFPTE and AFGE units[.]" RD's Decision at 6. Thus, the RD determined that the AFGE employees did not constitute a separate bargaining unit at the Activity. The RD did not, as required by the first FISC factor, examine whether the AFGE specialists are included in a separate appropriate unit at the Activity. In this regard, the RD failed to examine whether the two bargaining units proposed by the parties would appropriately include the AFGE specialists. These two units are: (1) a unit with all of the employees at the Activity, including the AFGE specialists, the IFPTE specialists and other employees as part of the AFGE consolidated unit, or (2) a separate, smaller unit with only the AFGE and IFPTE specialists.
a. Appropriateness of one unit that includes both specialists and other employees
As an initial matter, we find that a bargaining unit consisting of the AFGE specialists, IFPTE specialists and the other AFGE employees at the Activity is appropriate. It is evident that specialists and other employees can appropriately be included in one unit that would be part of the AFGE consolidated unit at the Activity. See, e.g., Valdosta, 52 FLRA at 1092. As was noted above, the 212 AFGE specialists were previously included in the AFGE consolidated unit while employed at Dayton.
Further, the IFPTE specialist unit at the Activity pre-dates AFGE's organization of the remainder of the employees at the Activity. Its continued existence does not suggest that the specialists could not have been included in the Activity-wide unit, had they been unrepresented at the time the AFGE unit was created and had they been included in AFGE's petition at that time.
No facts have been presented that indicate that these 410 specialists together have a community of interest so distinct from the rest of the employees at the Activity that including them in the AFGE consolidated unit would be inappropriate. Further, there is no reason that it would be ineffective or inefficient for these employees to be included in the consolidated unit. The past inclusion of specialists in the consolidated unit at the Dayton Supply Center indicates that, as expected, the organizational structure of the Agency is consistent with effectively dealing with specialists in the same unit as other employees. See FISC, 52 FLRA at 961-62. Further, the consolidated unit bears a rational relationship to the operational and organizational structure of the agency. Id.
b. Appropriateness of a unit that includes only specialists
For the reasons that follow, we also find that a separate unit consisting of the 212 AFGE specialists and the 198 IFPTE specialists together is appropriate.
(1) Community of Interest
A clear and identifiable "community of interest" exists where the transferred employees have significant employment concerns or personnel issues that are different or unique from those of the employees in the gaining organization. FISC, 52 FLRA at 960. The employees' interests must also be sufficiently similar that "it is possible for them to deal collectively [with management] as a single group." Id.; citing Department of Transportation, Federal Aviation Administration, Southwest Region, Tulsa Airway Facilities Sector, 3 FLRC 235, 237 (1975).
The AFGE specialists and the IFPTE specialists are in the same two job series. Employees within each of those series share the same skills no matter where they are located within the Activity. There is no opportunity for employees to move from these series to the positions of employees in other job series. The employees thus appear to be sufficiently similar to "deal collectively."
For 18 years the positions encumbered by the specialists at the Activity have been represented as a functional grouping by IFPTE and excluded from the unit description of AFGE. The Authority has long recognized separate appropriate units based on functional groupings of employees in particular positions. U.S. Department of the Treasury, Bureau of Engraving and Printing, 49 FLRA 100, 108 (1994). A history of bargaining as a separate functional group indicates closely shared terms and conditions of employment among those employees. See Department of the Navy, Naval Station, Norfolk, Virginia, 14 FLRA 702, 704 (1984) (Naval Station, Norfolk); Department of Defense Dependents Schools, 6 FLRA 297, 309 (1981). While the record does not contain specific evidence concerning the nature of the separate bargaining by this unit, the separateness of this unit for this period was stipulated by the parties.(8)
In finding that the IFPTE bargaining unit remained an appropriate unit after the 1994 reorganization, the RD concluded that the duties and functions of these employees had not been sufficiently altered that they had lost their separate community of interest, and that the separate bargaining history of these employees was a significant indication of their separate community of interest. We affirmed this finding, supra, at 11.
The Activity asserts, however, that such determinations should not be made "solely" on bargaining history, citing Allen Park, 43 FLRA 264, and that the "totality" of the changes made in the 1994 reorganization and the later organizational changes resulting from the consolidation of the Dayton Supply Center with the Activity has eliminated a separate community of interest for the specialists. The Agency points to the fact that the specialists work at the same location as other employees, are governed by the same personnel policies and regulations, work under the same Commander, and are subject to the same working conditions as employees in other positions. AFGE makes the same argument, asserting that these employees are fully integrated into the workforce and citing to many similarities between the working conditions of these employees and the other employees at the Activity.
The Activity's argument on the appropriateness of a separate bargaining unit for the specialists has not, however, been consistent through the course of this litigation. At the hearing, it was the Activity that proposed that a separate unit composed of the AFGE specialists and the 198 specialists represented by IFPTE would be appropriate. In its post-hearing brief to the RD, the Activity took the position that the changes that had occurred during the 1994 reorganization were not sufficient to cause the specialists to accrete to the AFGE consolidated unit, Activity Post-Hearing Brief at 9, and that, while a single bargaining unit of all employees "can be found appropriate," it would not oppose two bargaining units. Id. at 16. This inconsistency undercuts the persuasiveness of the Activity's argument.
We conclude that the AFGE specialists and the IFPTE specialists together share a sufficiently distinct community of interest. They may be represented in a separate appropriate unit. In this regard, the critical factor which establishes their separate community of interest is the long history of separate bargaining for specialist as a functional grouping of employees at the Activity. The Authority and the NLRB have considered that factor significant in making appropriate unit determinations. See, supra, at 11; DLA, 15 FLRA at 965.
The Allen Park case, cited by the Activity, is distinguishable. That case did not concern, as here, the appropriateness of a unit that is structured around a functional grouping of employees. Rather, it concerned the inclusion in a unit of employees who are of a different classification and had been specifically excluded from the unit description. It simply holds that actual bargaining for a group of employees does not overcome a specific exclusion contained in a unit description.
(2) Effective Dealings
The "effective dealings" criterion pertains to the relationship between management and the exclusive representative selected by the proposed unit. FISC, 52 FLRA at 961. Factors bearing on this criterion include the locus and authority of the office that administers personnel policies affecting the proposed unit and the past collective bargaining experience of the parties. Id.
The office responsible for administering personnel and labor-relations policies is at the Activity. IFPTE has represented specialists in a separate unit at the Activity since 1968. There is no evidence that this separate unit has disrupted the Activity's operations and the Activity has indicated that the record did not show that labor relations had been ineffective with the two separate units. On the basis of these facts, we conclude that a unit consisting of the AFGE specialist and the IFPTE specialists would promote effective dealings.
(3) Efficiency of Operations
The "efficiency of operations" criterion pertains to whether the structure of the bargaining unit bears a rational relationship to the operational and organizational structure of the agency. FISC, 52 FLRA at 961. In determining the effect of a proposed unit on the efficiency of agency operations, the Authority considers factors pertaining to cost, productivity, and resources. Id. at 962. There were no findings to suggest that a separate unit of specialists would adversely affect the Activity's productivity or resource allocation. Accordingly, we conclude that a unit consisting of the AFGE specialists and the 198 specialists represented by IFPTE would promote efficiency of operations.(9)
4. AFGE-Represented Employees Constitute the Majority in Either of the Units
AFGE-represented employees constitute the vast majority in a separate unit consisting of the AFGE specialists, IFPTE specialists, and other employees in the AFGE consolidated unit at the Activity. In addition, the AFGE specialists constitute a majority in a separate specialist unit composed of the 212 AFGE specialists and the 198 IFPTE specialists.
In summary, we conclude that the AFGE specialists are included in, and constitute a majority of, two separate appropriate units at the Activity.
Accordingly, consistent with the approach set out in FISC, we will apply the remaining Port Hueneme factors to determine whether there is a successorship.
C. Applying the Remaining Elements of the Port Hueneme Successorship Factors, the Gaining Activity Has Substantial Continuity and an Election is Necessary
1. The Activity Has Substantial Continuity With the Losing Entity and the Transferred Employees Perform Substantially the Same Duties Under Substantially Similar Working Conditions
The second Port Hueneme factor requires that the gaining entity have substantially the same mission and that the transferred employees perform substantially the same duties under substantially similar working conditions as before the transfer.
The mission of the Dayton Supply Center was transferred to the Activity. The RD found, and the Activity asserts, both without explanation, that the AFGE specialists were not necessarily placed in the same positions that they encumbered at the Dayton Supply Center and that they did not always work under the same supervisor. RD's Decision at 4. Notwithstanding that finding, the record testimony indicates that those employees perform essentially the same duties, and provide the same services as before their transfer. In these circumstances, we conclude that the second factor of Port Hueneme has been met.
2. An Election Is Necessary to Determine Representation
Finally, we consider the third Port Hueneme factor: whether an election is necessary to determine the representation rights of the transferred employees. We look to our own precedent, as well as the experience of the private sector to determine the necessity of an election. See, e.g., Valdosta, 52 FLRA at 1090.
In the context of an agency realignment of functions, the Authority has ordered an election where the employees at issue could be a part of two petitioned-for appropriate units. DLA, 15 FLRA 962. As the Authority held in DLA, where "the considerations in favor of each [unit] are evenly balanced, the determining factor should be the desire of the employees themselves." Id. at 966; see also Naval Station Norfolk, 14 FLRA at 704-5. In addition, the Authority has indicated that an election may be necessary where, as here, more than one labor organization represents employees transferred into the new unit. See Valdosta, 52 FLRA at 1091.
Similarly, the NLRB has found an election necessary after a reorganization or corporate merger where more than one labor organization has represented employees in the new unit and neither group of affected employees is sufficiently predominant to remove the question concerning overall representation. Seven-Up, 281 NLRB at 946; Boston Gas Company, 221 NLRB 628, 629 n.5 (1975). On the other hand, the NLRB will not direct an election where it would be a useless exercise or prejudicial to the dominant group. Seven-Up, 281 NLRB at 946; Boston Gas Company, 235 NLRB 1354, 1355 (1978).
We find that an election is necessary to determine the representational rights of the 212 AFGE specialists and the 198 IFPTE specialists. In this regard, both AFGE and IFPTE have represented employees in that unit that are virtually equal in number. There is no evidence that either group is sufficiently predominant to remove the question concerning representation. Thus, we conclude that it has been demonstrated that an election is necessary.
Further, we find that an election is necessary to determine whether to include the specialists in the AFGE consolidated unit at the Activity. Such inclusion would involve changing the specific exclusion of the specialists. As discussed above, in these circumstances, the inclusion in the AFGE consolidated unit at the Activity of the specialists could not be achieved without an election, supra, at 11.
D. The Framework for the Election
The Authority's practice is to order a self-determination election where more than one bargaining unit is found to be appropriate, and accretion and successorship are not established. See U.S. Department of Labor, Pension and Welfare Benefits Administration, 38 FLRA 65, 73 (1990) (Pension); DLA, 15 FLRA at 966; Naval Station, Norfolk, 14 FLRA at 704-5; Department of the Air Force, 6th Missile Warning Squadron, Otis Air Force Base, Massachusetts, 3 FLRA 112, 114-15 (1980). In a self-determination election, the employees are permitted to vote whether they wish to represented by one union in a larger bargaining unit or by another union in a separate, smaller unit.
The Authority's use of self-determination elections in this situation follows the "Armour-Globe" doctrine in the private sector, which "allows employees 'to determine the scope of a unit by allowing them to cast a vote for each of several potential units which the Board has determined are appropriate.'" NLRB v. Raytheon Co., 918 F.2d 249, 251 (1st Cir. 1990) (Raytheon) (citations omitted); Globe Machine and Stamping Co., 3 NLRB 294 (1937); Armour and Company, 40 NLRB 1333 (1942) (Armour). For example, in Armour, the NLRB permitted employees who had been historically represented by three separate craft unions to determine whether they would join an existing larger unit, with the three craft units voting separately for inclusion or separate status. Raytheon, 918 F.2d at 251.
Employees are not permitted to vote on unit appropriateness in the abstract. Employees are permitted to vote on their unit preference only when simultaneously voting on a bargaining representative. Id. at 253, n.2.
Based on the foregoing authority, we find that the appropriate self-determination election here would offer the 410 specialists at the Activity the opportunity to vote for representation by AFGE in the consolidated unit or by IFPTE in the separate unit. AFGE has not indicated an interest in representing the specialists in a separate unit; rather, it has consistently maintained that they should be accreted into its consolidated unit. See, e.g., Pension, 38 FLRA at 73; see also Carr-Gottstein Foods Company, 307 NLRB 1318, 1319 (1992). However, AFGE can change its position in this regard on remand. See, e.g., Pension, 38 FLRA at 73.
In the event AFGE desires to represent these employees in a separate unit, the election would have to be a two-step process. The employees would first decide whether they wanted to be in the separate or consolidated unit. A second election would be necessary to determine the representative if a separate unit was chosen.
The RD is directed to take appropriate action consistent with this decision.
(If blank, the decision does not have footnotes.)
1. Member Cabaniss did not participate in this decision.
2. The portion of AFGE's consolidated unit at the Activity is described as follows:
INCLUDED: All non-supervisory, non-professional employees at the Defense Construction Supply Center, Columbus, Ohio; the Defense Distribution Depot Columbus, Columbus, Ohio; and the Information Processing Center Columbus, Columbus, Ohio.
EXCLUDED: All professional employees, management officials, supervisors, Equipment Specialist (GS-1670) and Quality Assurance Specialist (GS-1900) and employees described in 5 U.S.C. § 7112(b)(2), (3), (4), (6) and (7).
RD's decision at 2.
3. The unit at Dayton Supply Center is described as follows:
INCLUDED: All non-supervisory, non-professional employees of the Defense Electronics Supply Center, Dayton, Ohio.
EXCLUDED: All professional employees, firefighters, management officials, supervisors, employees assigned to the Office of Installation Services, and employees described in 5 U.S.C. § 7112(b)(2), (3), (4), (6) and (7).
RD's decision at 2.
4. The petition initially sought to accrete to the AFGE consolidated unit only the AFGE specialists. In an amended petition, AFGE describes the appropriate unit as "[a]ll non-supervisory, non-professional employees of the Defense Supply Center Columbus, Ohio." Authority's Exhibit No. 1(d) Thus, AFGE now claims that the appropriate unit includes all the specialists at the Activity, including the IFPTE specialists.
5. We note that severance principles are not applicable to this case. Severance principles apply when a petition is filed seeking an election in a portion of an existing, appropriate unit. See, e.g., National Association of Government Employees/Service Employees International Union, Local 5000, AFL-CIO-CLC, and Service Employees International Union, AFL-CIO-CLC, 52 FLRA 1068, 1077 (1997); Department of Health and Human Services, Region, II, New York, New York, 43 FLRA 1245, 1255 (1992) (HHS, Region II). In this case, AFGE did not file a petition seeking an election to represent the 212 AFGE specialists in a separate unit. Further, AFGE does not allege, and we do not find, that those employees form an appropriate unit separate and apart from other employees.
6. See 5 C.F.R. § 210.102(b)(18), which provides that "transfer" is "a change of an employee, without a break in service of 1 full workday, from a position in one agency to a position in another agency." See also 5 C.F.R. § 210.102(b)(12), which provides that "reassignment" is a "change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion."
7. The Activity would have us consider the general trend toward interdisciplinary teams within the government as a reason to adopt a rule that permits only the most appropriate unit, rather than allowing an appropriate unit. Activity Brief at 21. The Authority rejected this same suggestion in FISC, 52 FLRA at 959, n.5. The Agency has not presented any evidence or reason which would support making such a dramatic shift in the law.
8. At the hearing, the representative for IFPTE attempted to ask his witness, the President of the Local, about the history of the bargaining unit, to show that "nothing has changed since 1968. That the employees still operate independently. They still have technical, high level responsibilities, and things that other employees here do not possess." Tr. at 672. The hearing officer objected to any inquiry of this sort, stating that "I do not think that that is relevant of why or how this unit was originally recognized. We have it as a stipulated fact [that the unit was recognized as separate in 1968]. . . ." Tr. at 672-3. The separateness of the technical employees was also noted by the IFPTE representative in that party's opening statement of position, Tr. at 24, and closing statement. Tr. at 686.
9. The fact that there would be two units at the Activity does not compel a conclusion that such result would impair effective dealings or efficiency of operations. As the Authority explained in Bremerton, the number of bargaining units is not dispositive of the section 7112(a)(1) analysis; as noted, what is required under the Statute is an appropriate bargaining unit, not necessarily the most appropriate unit. 53 FLRA at 183 n.9