[ v53 p1417 ]
The decision of the Authority follows:
53 FLRA No. 126
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
UKIAH DISTRICT OFFICE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(Exclusive Representative/Labor Organization)
February 27, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on the Activity's application for review of the Regional Director's (RD's) decision under section 2422.31(c) of the Authority's Regulations. The Exclusive Representative (Union) did not file an opposition to the Activity's application for review.
The Authority granted the application for review on the following issue:
Is an election appropriate in a successorship situation when the number of unrepresented employees is almost the same as the number of represented employees?
The Activity filed a supplemental brief. The Union's supplemental brief was not timely filed and has not been considered.
For the reasons that follow, we find that an election is not appropriate in a successorship situation when the number of unrepresented employees is less than the number of represented employees, even where the number of unrepresented employees is almost the same as the number of represented employees. Accordingly, we deny the Activity's application for review and affirm the RD's Decision and Order.
II. Background and RD's Decision
Following a reorganization within the Bureau of Land Management (BLM), the Activity filed a petition to clarify two bargaining units.(1) Before the BLM reorganization, the Union represented a unit of 58 non-professional employees. As a result of the reorganization, 56 other non-professional employees who had not been in a bargaining unit joined the 58 represented non-professional employees in a new organization.
Applying the analytical framework in United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 958-59 (1997) (FISC), the RD found that a unit of 114 non-professional employees, including the 58 employees represented by the Union, constituted an appropriate unit. Having so found, the RD then applied the three successorship factors set forth in Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme).(2) After finding that the first two factors were met, the RD addressed the third factor: whether an election is necessary to determine representation. Citing Port Hueneme and Social Security Administration, District Office, Valdosta, Georgia, 52 FLRA 1084 (1997) (SSA Valdosta), the RD concluded that no election was necessary because a majority of the employees in the unit are represented by the Union. Accordingly, the RD issued an amendment of certification certifying the Union as the exclusive representative of the unit of non-professional employees.
III. Activity's Position
The Activity contends that an election should be held in this case. The Activity acknowledges that the principle of successorship, not accretion, is involved here, and that, with respect to successorship, the Authority has held that majority status among employees in the gaining entity is crucial to determining whether an election is necessary. Nonetheless, the Activity contends that where, as here, the number of unrepresented employees (56) is so close to the number of represented employees (58) in the gaining entity, the "majority" standard should not be applied. The Activity requests that the Authority reconsider its "majority" standard in successorship situations and apply a standard under which an election would be required if the number of unrepresented employees "nearly equals or exceeds" the number of represented employees in the gaining entity. Application at 4. According to the Activity, the Authority uses this latter standard in accretion cases.(3)
Additionally, the Activity argues that in a successorship situation such as this, the Statute's "competing" goals of protecting the right of employees to organize and encouraging labor relations peace are served by holding an election. Supplemental Brief at 5. The Activity asserts that without an election there would be no labor relations peace, and there would still exist a question concerning representation. The Activity contends that the absence of an election defeats the interest of an efficient and effective government.
IV. Analysis and Conclusions
In SSA Valdosta, the Authority considered both Authority and National Labor Relations Board (NLRB) precedent to determine how to evaluate whether an election is necessary to determine the representation rights of transferred employees. The Authority stated that it and the NLRB have found a question concerning representation, and therefore directed an election, in only a limited number of situations in cases where successorship or accretion are otherwise appropriate. The Authority further stated that "[u]nion majority status among employees in the gaining entity is crucial to such a determination." SSA Valdosta, 52 FLRA at 1091, citing Geo. V. Hamilton, Inc., 289 NLRB 1335 (1988). The Authority noted that both it and the NLRB have found that an election would be necessary to determine representation after a reorganization or consolidation when the number of unrepresented employees in the gaining entity exceeds the number of represented employees. Additionally, the Authority noted that the NLRB also has found an election necessary after a reorganization when more than one labor organization represents employees transferred into the new unit. With respect to the employees involved in SSA Valdosta, the Authority concluded that, "[a]s the transferred [represented] employees constitute a majority of the employees of the gaining entity, and no other labor organization represents, or seeks to represent, the transferred employees," no election was necessary. Id.
The Activity does not dispute the fact that, under the Authority's current standard in successorship situations, an election is necessary to determine representation after a reorganization or consolidation when the number of unrepresented employees in the gaining entity exceeds the number of represented employees.(4) Rather, it seeks to modify this standard by requiring an election in a successorship situation when the number of unrepresented employees in the gaining entity nearly equals the number of represented employees. The Activity's argument is premised on its contention that the Authority applies such a standard in accretion situations.
The Activity accurately states that the Authority has stated that a "nearly equals or exceeds" standard applies in accretion cases.(5) In this regard, the Authority stated, in two cases, that a "nearly equals or exceeds" standard applies in accretion cases. Those two cases are: (1) U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 47 FLRA 602, 612 (1993) (Wright-Patterson); and (2) SSA Valdosta, 52 FLRA at 1089.
In Wright-Patterson, the Authority found that following a consolidation, a smaller group of unrepresented employees accreted to an existing bargaining unit containing a larger number of employees. The Authority rejected the activity's argument that an election was needed and referenced the "nearly equals or exceeds" standard as an exception to the general rule that elections are not needed to clarify the bargaining unit status of employees. The Authority stated:
With one exception, elections are not conducted when there is an attempt to clarify the bargaining unit status of employees. That exception, involving situations where the number of employees proposed for inclusion nearly equals or exceeds the number of employees in the existing unit, was found not to apply here because the existing unit contains considerably more employees than are sought to be accreted.
Consequently, an election is not warranted. See, HHS, Region II, 43 FLRA at 1255-56.
Wright-Patterson, 47 FLRA at 612.
In SSA Valdosta, the Authority found that, following a transfer, a larger group of represented employees joined a smaller group of unrepresented employees in a successor organization; that an election was not necessary to determine representation; and that the unit was appropriate for inclusion in a consolidated bargaining unit. SSA Valdosta, 52 FLRA at 1089. In that case, the Authority stated:
[T]he rule [is] that the representational status of a minority will not control the representational status of a majority of employees. Cf. Wright-Patterson Air Force Base, 47 FLRA at 612 (where number of employees proposed for inclusion in CU case nearly equals or exceeds number of employees in existing unit, an election will be conducted).
Neither Wright-Patterson, nor the parenthetical describing it in SSA Valdosta, explained why the phrase "nearly equals" was added to the standard previously set forth in other accretion cases, including HHS Region II and the NLRB precedent cited therein. The Activity has not explained, and it is not apparent to us, why the Authority should depart from the "majority" standard. That standard recognizes that there is no need for an election where a majority of the employees are represented, since the election requirement was already satisfied when the exclusive representative was certified. In addition, that standard, unlike the standard of "nearly equals," is capable of being administered in a clear, unambiguous manner. For these reasons, we will continue to apply the majority standard in accretion cases involving groups of represented and unrepresented employees. Accordingly, to the extent the Authority previously stated that the "nearly equals or exceeds" standard applies in accretion cases, those cases will no longer be followed.(6)
We find that, consistent with FISC and Port Hueneme, the RD was correct to certify the Union as the exclusive representative of the unit because a majority of the employees in the successor organization had been represented by the Union.
We find that an election is not appropriate in a successorship situation when the number of unrepresented employees is almost the same as, but less than, the number of represented employees. We deny the Activity's application for review and affirm the RD's Decision and Order.
(If blank, the decision does not have footnotes.)
1. The Activity sought to clarify both a professional and a non-professional bargaining unit. Because the application for review pertains only to the non-professional unit, we do not address the professional unit.
2. In Port Hueneme, the Authority set forth the following factors and determined that if these factors are met, the Authority will find that a gaining entity is a successor, and a union retains its status as the exclusive representative of employees who are transferred to the successor:
(1) An entire recognized unit, or a portion thereof, is transferred and the transferred employees: (a) are in an appropriate bargaining unit, under section 7112(a) of the Statute, after the transfer; and (b) constitute a majority of the employees in such unit;
(2) The gaining entity has substantially the same organizational mission as the losing entity, with the transferred employees performing substantially the same duties and functions under substantially similar working conditions in the gaining entity; and
(3) It has not been demonstrated that an election is necessary to determine representation.
50 FLRA at 368.
3. To support its contention that the Authority uses this standard in accretion cases, the Activity relies on Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245, 1255-56 (1992) (HHS Region II).
4. Because a finding of successorship under the Statute results in continued recognition, without a new, secret ballot election, successorship depends on the fact that the affected union is the choice of a majority of employees in the claimed successor's unit. See Port Hueneme, 50 FLRA at 370-71. Cf. Defense Supply Agency, 3 FLRC at 802 (if successorship requirements are satisfied, then there "is no requirement that a new secret ballot election be conducted, since the election requirement . . . was already satisfied at the time the previous recognition was accorded").
5. The Activity mistakenly cites HHS Region II, 43 FLRA at 1255-56, as the source of that standard. In HHS Region II, the Authority referenced NLRB cases in which the NLRB refused to find an accretion, and the NLRB ordered an election where the number of unrepresented employees sought to be accreted to an existing unit was equal to or greater than the number of employees in the established unit. There was no "nearly equals or exceeds" standard either referred to or applied in HHS Region II.
6. We are not addressing, and leave for discussion in future appropriate cases, the circumstances under which an election may be necessary in accretion situations other than those involved in Wright-Patterson and SSA Valdosta.