Department of the Army, U.S. Army Aviation Missile Command (AMCOM), Redstone Arsenal, Alabama and American Federation of Government Employees, Local 1858, AFL-CIO and National Federation of Federal Employees, Local 405
[ v55 p640 ]
55 FLRA No. 108
DEPARTMENT OF THE ARMY
U.S. ARMY AVIATION MISSILE COMMAND
(AMCOM) REDSTONE ARSENAL, ALABAMA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858, AFL-CIO
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 405
July 23, 1999
ORDER GRANTING APPLICATION FOR REVIEW
AND DENYING STAY OF ELECTION
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This case is before the Authority on an application for review and request for stay of the Regional Director's (RD's) Decision and Order on Clarification of Units, directing an election among two groups of employees. [n2] The American Federation of Government Employees, Local 1858, AFL-CIO (AFGE Local 1858), Petitioner in AT-RP-80005, filed the application and request for stay. The National Federation of Federal Employees, Local 405 (NFFE Local 405), Petitioner in AT-RP-80007, filed an opposition.
AFGE Local 1858 and NFFE Local 405 are the exclusive representatives of units of employees at two activities that were disestablished as a result of a reorganization, and who now work in a newly created entity known as the Army Aviation Missile Command (AMCOM), located at Redstone Arsenal, Alabama. AFGE Local 1858 seeks to have the Authority stay the election, and claims that the RD should not have found a question concerning representation (QCR). Rather, AFGE Local 1858 contends that it should be declared the representative of both groups of employees in their new employing organization, and that an election is unnecessary.
We grant AFGE Local 1858's application for review, on the ground that review is warranted under section 2422.31(c)(1) of the Authority's Regulations, because the RD's decision raises an issue for which there is an absence of precedent. In this regard, we find that there is an absence of Authority precedent for determining whether an election is necessary among two groups of employees, represented by different labor organizations, who have been assigned to a newly created appropriate unit where one union claims a sufficiently predominant number to avoid an election. The parties are requested to file supplemental briefs concerning particular issues set out below.
For the reasons set forth in part VII of this decision, we deny the request for a stay. However, if the General Counsel proceeds with an election during the pendency of this application for review, we order that the ballots be impounded. Until final adjudication, the two labor organizations will continue to represent the employees in their respective exclusive units until such time as the ballots may be counted. [n3]
The reorganization herein was occasioned by the approval by Congress of the Base Closure and Realignment Commission's disestablishment of Aviation Troop Command, known as ATCOM, in St. Louis, Missouri, and U.S. Army Missile Command, or MICOM, located [ v55 p641 ] at Redstone Arsenal, Alabama. Both had been activities within the Army Materiel Command (AMC). On October 1, 1997, the new entity, AMCOM, was established as an activity within AMC.
Prior to the reorganization, NFFE Local 405 represented an exclusive unit of professional/nonprofessional employees of the former ATCOM, in St. Louis. Of the 1,453 employees in this unit, 1,384 accepted transfer when ATCOM was disestablished and became part of the newly created AMCOM. At the same time, when MICOM was disestablished, its 4,711 unit employees, represented in separate professional and nonprofessional units by AFGE Local 1858, likewise became part of AMCOM. In this case, and under several alternative theories, AFGE claims the status of exclusive representative for the new combined group of employees.
III. Regional Director's Decision
The RD found that AMCOM's mission is a combination of the missions of ATCOM and MICOM. AMCOM now develops, maintains, sells and supports both aviation/troop weapons systems and missile systems. Its mission centers on the readiness of these systems. AMCOM services various elements or components of the Army in Europe, the Eighth Army in Korea, and Forces Command.
The RD described the reorganization for purposes of evaluating AFGE's arguments pertaining to successorship, accretion and representation rights. The RD assessed the organizational structure of AMCOM, noting the various ways in which AMCOM has combined and integrated the two disestablished organizations. Regarding the effect of the reorganization on the working conditions of the employees, the RD described how employees are relocated throughout AMCOM. She stated that a number of employees picked up additional and different job functions, while some did not, and some employees received training to perform their additional duties. Some employees changed jobs altogether. Many former MICOM employees acquired aviation functions and ATCOM employees acquired missile functions. Before the reorganization, they had worked only on one of the two systems.
Both former ATCOM and MICOM employees continue to participate in alternative work schedules, and maintain the differences in scheduling that were established in the two former organizations.
B. Decision on Petition
The RD found that AMCOM, made up of the former MICOM and ATCOM activities, is an entirely new organization, and that the combined units comprise a new appropriate bargaining unit. She also concluded that AMCOM is not a successor employer. In that regard, she applied the principles of Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme). The RD determined that the second prong [n4] of the three prong test of Port Hueneme had not been satisfied, because: (1) the entity into which the employees transferred did not maintain substantially the same organizational mission as either of the losing entities, since the new mission was broader; (2) well over a third of the employees were no longer performing substantially the same duties and functions; and (3) the work environment and working conditions of many employees had changed. RD's Decision at 21-22, citing 50 FLRA at 368.
The RD also decided that the former MICOM employees did not accrete into the AFGE bargaining unit. The test for accretion calls for the movement of employees into an already established, recognized unit. U.S. Department of Defense, Dependents Schools and Overseas Education Association, 48 FLRA 1076, 1088-89 (1993) (OEA); Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245, 1254 (1992) (HHS). The RD found that because there was a new organization formed, there was no already established, exclusively recognized or certified unit into which the smaller unit accreted.
Finally, after finding no successorship or accretion, the RD considered whether an election is necessary to determine whether NFFE, AFGE, or no union, is the preference of the former MICOM and ATCOM employees. The RD noted that "[t]here are only a few situations in successorship or accretion cases in which the Authority and the [NLRB] found a . . . QCR and directed an election." RD's Decision at 23. To make this determination, the RD considered the relative strengths of AFGE and NFFE to decide whether the 4,711 employees represented by AFGE would be "sufficiently predominant" over the 1,384 employees represented by NFFE in the new organization to conclude that an election is unnecessary. [ v55 p642 ]
The RD stated that "[t]he Authority has not defined 'sufficiently predominate' in cases where a new organization has been created, nor has the Authority discussed to what extent the sheer numbers play in determining what 'sufficiently predominate' means." RD's Decision at 25-26. She concluded that under the circumstances a QCR exists, and that the employees should be given the opportunity to decide what labor organization they want to be their exclusive representative, if any.
IV. Application for Review
AFGE asserts, among other things, that the RD's finding that AFGE members do not "sufficiently predominate" to preclude the necessity of an election is based on an issue for which there is an absence of precedent, and further, that this conclusion is incorrect.
In addition, AFGE contends that the RD's decision departs from past precedent, and there are extraordinary circumstances warranting reconsideration of policy relating to application of Authority case law. [n5]
NFFE Local 405 argues, in pertinent part, that the RD should be able "to define what is 'sufficiently predominate' on a case-by-case basis," Opposition at 4, and asserts that the RD was justified in finding an election necessary.
VI. Analysis and Conclusions
A. The Regional Director's Decision Raises An Issue For Which There Is An Absence Of Precedent
We agree with the RD that the Authority has not defined what constitutes a "sufficiently predominant" number to make an election unnecessary in cases where a new organization has been created. In fact, the Authority has not previously expressed an opinion on certification of one of two unions without an election in the absence of an already existing, certified unit into which a smaller unit can be accreted. Assuming that such certification is appropriate under the Statute, there is a lack of precedent concerning whether a "sufficiently predominant" number in these circumstances should be sufficient to render an election unnecessary, and if so, what that number would be.
In this regard, the Authority's successorship and accretion doctrines do not explicitly contemplate the possibility of certifying a union as the representative of a new unit of employees without another election when a "new operation" is established through reorganization or consolidation bringing together employees represented by different labor organizations. In particular, our current successorship doctrine requires the maintenance of a substantially similar organizational mission, with similar working conditions. Port Hueneme, 50 FLRA at 368. Our current accretion doctrine requires a previously certified bargaining unit as a gaining entity. See HHS, 50 FLRA at 1254.
We note that the National Labor Relations Board has at least impliedly used an approach different from anything previously used by the Authority. There are representation cases decided by the Board in which it refers to a "sufficiently predominant" analysis in the context of the creation of a new operation and after making a determination that accretion is not appropriate. In one such case, where the employer acquired a second plant represented by a union different from the one at its original facility, the NLRB stated
When an employer merges two groups of employees who have been historically represented by different unions, a question concerning representation arises, and the Board will not impose a union by applying its accretion policy where neither group of employees is sufficiently predominant to remove the question concerning overall representation. [Citation omitted.]
Martin Marietta Chemicals, 270 NLRB 821, 822 (1984). See also, National Carloading Corp., 167 NLRB 801 (1967) (NLRB ordered an election after finding that accretion had not occurred and that neither one of two unions was "sufficiently predominant to remove any real question as to the overall choice of representative"). In another circumstance, the NLRB found an accretion appropriate where a new employer resulted from the merger of three companies and one union was determined to be sufficiently predominant in the new organization. U.S. West Communications, Inc., 310 NLRB 854 (1993).
We conclude that there is an absence of Authority precedent on two matters. First, we have not determined whether, in a situation where the possibility of accretion has not been recognized under Authority precedent because a reorganization has rendered inappropriate separate, preexisting bargaining units represented by different unions, an election is always necessary to certify one of them as exclusive representative in the [ v55 p643 ] new, appropriate unit. [n6] Second, if the Authority were to develop such doctrine through application of the "sufficiently predominant" or some other test, it would be necessary to determine how to assess when one group is "sufficiently predominant" to render an election unnecessary.
As there is an absence of Authority precedent, [n7] we grant the application for review to determine whether to develop a "sufficiently predominant" or other theory to apply to cases where a reorganization has disestablished activities and placed their former employees in a newly-created entity, where the employees were exclusively represented by more than one labor organization.
We direct the parties to address the following questions:
1. Should the Authority's "successorship" and/or "accretion" doctrine be modified to apply to situations where more than one unit of employees represented by different exclusive collective bargaining representatives are transferred to (a) a new entity with a new mission or (b) a new entity with a mission that is a combination of the missions of previously existing organizations? If so, why, and what should the modification be?
2. Is a question concerning representation necessarily raised when more than one group of employees, represented by different labor organizations, are transferred to a newly established organization, and neither our current successorship doctrine nor our current accretion doctrine permits certification without an election? If not, is it consistent with the Statute and appropriate to apply the "sufficiently predominant" or some other doctrine to determine whether an election is not required?
3. If Authority doctrine is modified, what guidelines, numerical or otherwise, should the Authority use to determine whether a group represented by one labor organization is sufficiently predominant to render an election unnecessary?
In accordance with section 2422.31(g) of the Authority's Regulations, the parties are directed to file briefs on the issues set forth. [n8] Briefs will be considered if received by mail or personal delivery in the Authority's Office of Case Control by 5 p.m. on August 27, 1999. Placing submissions in the mail by this deadline will not be sufficient. Extensions of time to submit briefs will not be granted. Briefs should be directed to:
Peter J. Constantine
Director, Case Control Office
Federal Labor Relations Authority
607 14th Street, NW, 4th Floor
Washington, D.C. 20424-0001
VII. The Request to Stay the Election Is Denied
We note at the outset that a stay of an election order is unusual. Moreover an application for review does not automatically stay an election, and the moving party has a burden to establish the propriety of such an action.
The Authority's Regulations are silent regarding standards for evaluating requests for stays of regional directors' decisions, and the Authority has not previously addressed the subject. For this and future cases, we will be guided by the standards used by appellate courts to evaluate requests to stay district court orders. [ v55 p644 ] The standards as set out in the D.C. Circuit's Rule 8(a)(1) are as follows:
1. The likelihood that the moving party will prevail on the merits;
2. The prospect of irreparable injury to the moving party if relief is withheld;
3. The possibility of harm to other parties if relief is granted; and
4. The public interest.
It is well established that the moving party must satisfy all four requirements to justify a stay. See General Carbon Company, A Division of St. Mary's Carbon Company v. Occupational Safety & Health Commission, 854 F.2d 1329 (D.C. Cir. 1988) (motion for stay fails because moving party failed to address two of the four factors); Wisconsin Gas. Co. v. F.E.R.C., 758 F.2d 669 (D.C. Cir. 1985) (Washington Gas) (court rejects motion for stay on the ground that irreparable harm was not established, and did not evaluate the remaining three factors) .
For the reasons set forth below, we deny the stay, conditioned upon the impoundment of the ballots if an election occurs prior to issuance of our final adjudication of this matter. This approach "will ensure that the vote reflects the wishes of the bargaining unit at a time sufficiently proximate to the filing of the petition to preserve the rights of the employees under section 7102[.]" Division of Military and Naval Affairs (New York National Guard), Latham, New York, 53 FLRA 111, 123-24 n.14 (1997). In addition, as discussed below, impounding the ballots will ensure that neither AFGE nor NFFE will suffer irreparable harm as a result of our action on the stay request.
A. Irreparable Injury
In support of its request to stay the election, AFGE asserts that it would suffer irreparable injury because it would lose "thousands of dollars in lost dues" if the election goes forward (and presumably AFGE loses the election). Application for Review at 2. It also argues that "employees will lose AFGE-only benefits such as dental insurance." Id.
In addition, if NFFE won an election that was set aside, AFGE contends that it would be at a disadvantage "since its bargaining unit will have been absorbed by NFFE's bargaining unit. In effect, NFFE will have had access to our bargaining unit as the incumbent union." Id.
As the foregoing demonstrates, all the irreparable harm alleged by AFGE assumes that: (1) the election would be conducted; (2) NFFE would win the election; and (3) NFFE would be effectively certified as the new exclusive representative before review of an application for review of the election were completed; and (4) the Authority ultimately would reverse the election. These assumptions appear both speculative and unwarranted. Section 2422.32 of the Authority's Regulations, provides that if an application for review is filed of a Regional Director's decision requiring a certification, then the RD's action is not effective unless it becomes the action of the Authority. In addition, section 2422.34 provides that during the pendency of any representation proceeding, parties are obligated to adhere to the terms of existing contract. Moreover, apart from these regulations, the alleged irreparable harm is completely eliminated if the ballots are impounded. Simply put, the irreparable harm alleged by AFGE does not exist, and we do not understand our dissenting colleague's conclusion to the contrary.
B. Possibility of Harm to Other Parties If Relief Is Granted
NFFE argues that its members "should have the opportunity to vote for the union of their choice without delay." Opposition at 8. While it may be that the smaller of the two unions would be put at a disadvantage if the election were delayed, NFFE has not offered any arguments pertaining to this factor. In any event, holding the election and impounding the ballots safeguards both unions' interests.
C. The Public Interest
AFGE makes no arguments with respect to the impact of holding the election on the public interest. Among other things, the record is devoid of information concerning the costs associated with the running of an election in a 6,000 person unit. It is certainly possible -- [ v55 p645 ] and perhaps likely -- that they will not be insignificant. [n9] However, other public interests, including allowing employees to vote for the representative of their choice, without undue delay or the possible influence of extraneous factors caused by the passage of time, cannot be ignored. In any event, we are not aware of any situations in which a stay was granted based on the public interest factor alone, and particularly in view of the General Counsel's discretion noted in footnote 8, we do not do so here.
D. Likelihood of Success on the Merits
For the petitioner to prevail, the Authority would need to create a new doctrine on which to rule that in cases where a new organization is created, and accretion is not recognized because preexisting units are no longer appropriate, an election is unnecessary under certain circumstances. In addition to adopting this new doctrine, the parameters of such a doctrine would need to be developed and the Petitioner would have to meet the new standard as defined. These are considerable hurdles.
This is not a situation where a well-developed private sector doctrine exists, and we are considering only whether it is appropriate to import that doctrine, in whole or in part, to the federal sector. Indeed, differences between the statutory provisions applicable in the private and federal sectors may preclude its adoption here. Moreover, even if we adopted such doctrine, we would have to determine how such a change, if adopted, would apply to the facts of this case. [n10] Given the extent to which the doctrine which the Petitioner seeks to adopt would be written on what is largely a "blank page," there is no basis on which to conclude that Petitioner is likely to prevail on the merits of its claim.
The questionable likelihood of success on the merits, added to the complete absence of irreparable harm, leads us to deny the request for a stay. See Washington Gas. If an election is conducted prior to the issuance of our decision in this matter, then the ballots shall be impounded.
Opinion of Member Wasserman, dissenting in part:
I agree with the majority that the Application for Review should be granted on the basis described above. I dissent with respect to the denial of the stay. In my view, the application of the four traditional standards for evaluating a stay request mandate that we grant it.
1. Likelihood of Success on the Merits
I think that the NLRB model offers a reasonable approach for our consideration. In this day of constant government reinvention and reorganization, we are faced with new situations that our doctrine simply did not contemplate at the time of its development. There will be cases, where as here, two previously existing units are merged into a new operation with a new or combined mission and modified duties and working conditions. If the disparity in numbers of unit members in the two units is great enough, it would be wasteful to require an election. For example, if one unit had 100 people, and the other unit had 1,000 people, I think it would be unreasonable to require an election in the newly created unit, simply because the units were merged into a new organization, and not a pre-existing one. The approach described in National Carloading Corp. and Martin Marietta Chemicals gives us the option of using common sense when it begs for attention. This is what appears to have occurred in U.S. West Communications, Inc.
As for the actual number required to be sufficiently predominant, I note that the NLRB has set 30% as the line to cross to establish a "substantial claim of interest" so as to bar a recognition agreement with one of two unions that come into conflict as a result of a business acquisition. See Custom Deliveries, 148 LRRM 1049 (1994). The NLRB adopted the 30% figure since that is the number required to establish an interest in an unit so as to prompt an election. Likewise, under our Statute, 30% is the number needed to support a petition for representation or for decertification. 5 U.S.C. 7111(b)(1). In my view, this number might provide a reasonable [ v55 p646 ] guideline to apply, in the absence of unusual circumstances, to determine whether a QCR exists or whether the significantly larger union should be accorded recognition rights without an election.
I also note the language of our Statute regarding elections. If the larger of two unions is found to be sufficiently predominant in a newly defined unit, its recognition would be based upon its previous selection by a majority of employees in "an appropriate unit" that would be determined to subsume a smaller unit in a new organization. 5 U.S.C. § 7111(a). Elections are only required when the Authority determines that "a question of representation exists." 5 U.S.C. § 7111(b).
While I have not made a determination on the merits of the Application for Review, I see enough in the way of good policy and legal precedent to state that the likelihood of success on the merits is high.
2. Irreparable Injury to Moving Party If Relief Is Denied
AFGE appears to be correct in its statement that it will lose thousands of dollars in lost dues if the election goes forward and AFGE loses, only to be vindicated in its argument that it represents the employees if the Authority decides the application for review in its favor.
If NFFE won such an election, and the Authority should find on application for review that the RD incorrectly directed the election, AFGE would not be able to recover its lost dues for the period. The dues would have been collected by the Agency (assuming check-off) and paid to NFFE. NFFE would be entitled to the dues because it would have been the exclusive representative during the time before the election was declared invalid based on our decision on the application for review. The Agency would not be responsible to reimburse AFGE for lost dues, since any involvement it had in collecting dues for NFFE would have been proper. And certainly the employees, who would have paid their dues to NFFE as their presumptive exclusive representative, could not be required to pay a second time to make up AFGE's losses.
AFGE also claims that employees would suffer irreparable injury because they would lose AFGE-only benefits such as member dental coverage. Even though the traditional standard for evaluating a request for a stay is stated in terms of irreparable injury to the requesting "party," damage to employees should be considered when a stay is requested in a labor relations context. It is appropriate for the union requesting the stay to represent the interest of employees it has been certified to represent exclusively. Regarding the argument itself, there is no evidence that equivalent coverage is available. Moreover, any available substitute plans might exclude pre-existing conditions or require waiting periods for coverage.
The majority correctly refers to our representation regulations, which permit an application for review to be filed with respect to an RD's order requiring a certification. However, in my view, that application for review would relate to the conduct of the election; the determination to hold an election is the subject of the earlier Decision and Order that is the basis of this application for review. There may be no grounds to challenge the certification other than those that are the subject of the current application and request for a stay. If that were to be the case, AFGE could indeed lose its certification and suffer the irreparable harm alleged.
3. Possibility of Harm to Other Parties If Relief Is Granted
Delaying the election theoretically could harm NFFE in the sense that NFFE's support could dissipate over time. However, there is no reason to see this as a more serious problem for NFFE than for AFGE if the RD ultimately is upheld and there is an election.
I do not think that the employees would be harmed by a stay. Their opportunity to vote would be delayed, and further removed from the eligibility period, but this situation is different from one where the passage of time will likely have an impact through the erosion of support for a union that has petitioned to represent a previously unrepresented unit. I view such dangers to be more prevalent in the private sector, where employers are much more likely to oppose the recognition of an exclusive representative. Here, each union will have the ability to represent its members under the previously existing contracts. Delay in determining which of the two will represent the new unit will not have an obvious impact on either union. Even if there were some reason to have a vote closer in time to the reorganization, the concern should be balanced against the damage to employees who would lose their "AFGE-only" benefits were NFFE to become the exclusive representative in an election that could be overturned by finding for the AFGE position on the application for review.
4. Public Interest
An election involving more than 6,000 employees will take considerable time and resources of the Regional Office. In addition, the Agency will be required to provide unit lists, to participate in meetings and to facilitate the election process. One cannot underestimate the impact on the unions, which likely will [ v55 p647 ] undertake extensive election campaigns, with a resulting impact on the Agency's facilities. If there is a reasonable chance that such an election will be unnecessary, the waste of time and the expense of running the election are factors to consider in deciding whether to grant the stay. I give considerable weight to the impact of these factors on the public interest.
There has been a strong showing on the likelihood of success on the merits. Legal doctrines must be flexible enough to avoid obsolescence as the labor-relations context changes. The Authority should consider modification of its response to representation questions in the context of reorganizations of this sort. When I weigh the merits and the relative harms to the parties caused by delay or going forward, I would grant the stay to avoid the unnecessary expenditure of funds and the resulting burden on the public interest. As a policy matter, I would not abdicate my decision-making responsibility to the General Counsel, as the majority seems to do in its reference to the General Counsel's discretion to delay the election.
Footnote # 1 for 55 FLRA No. 108
Footnote # 2 for 55 FLRA No. 108
(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
Footnote # 3 for 55 FLRA No. 108
As agreed during the development of AMCOM, the employees continue to be covered by their respective collective bargaining agreements, and represented by the existing exclusive representative for each unit.
Footnote # 4 for 55 FLRA No. 108
Prong 2 states that "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[.]" Port Hueneme, 50 FLRA at 368.
Footnote # 5 for 55 FLRA No. 108
Although in its general statement AFGE claims that review is sought on the additional ground that extraordinary circumstances warrant reconsideration of policy, this argument appears in fact to be based on the assertion that there is an absence of precedent on the "sufficiently predominate" standard in the