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56 FLRA No. 28
DEPARTMENT OF THE NAVY
NAVAL COMPUTER AND
BASE LEVEL COMMUNICATIONS DEPARTMENT
REGIONAL OPERATIONS DIVISION
BASE COMMUNICATIONS OFFICE-
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1156, AFL-CIO
ORDER GRANTING APPLICATION FOR REVIEW
AND REMANDING TO REGIONAL DIRECTOR
March 31, 2000
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on an application for review filed by the Agency under section 2422.31 of the Authority's Regulations, seeking review of the Regional Director's Decision and Order granting the Union's petition. The petition sought to clarify a unit of employees to reflect that the organization to which four employees were transferred is the successor employer of, and that the Union remains the exclusive representative of, those four employees.
The application for review contends that there is a genuine issue over whether the Regional Director (RD) has failed to apply established law. The application for review also asserts that the RD's finding that the transferred employees constitute an appropriate unit raises an issue for which there is an absence of precedent and that established law or policy of the Authority warrants reconsideration. The Union did not file an opposition to the application for review.
We grant the application on the ground that there is a genuine issue over whether the RD failed to apply established law pursuant to section 2422.31(c)(3)(i) of the Authority's Regulations. As explained below, we find that the RD did not examine all the factors set forth in section 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute). Accordingly, we remand this matter to the RD to apply the established law, after making certain additional findings.
II. Background and Regional Director's Decision
The Agency is the Department of the Navy, Naval Computer and Telecommunications Area Master Station-Atlantic (NCTAMS-LANT), Base Level Communications Department, Regional Operations Division, Norfolk, Virginia (Regional Operations Division, Norfolk), Base Communications Office-Mechanicsburg (BCO-Mechanicsburg). The employees at issue herein were transferred to BCO-Mechanicsburg. Before the reorganization that led to the transfer, the employees were in various subdivisions of what is now known as Naval Inventory Control Point-Mechanicsburg (NAVICP-Mechanicsburg). The transfer did not change the duty station of the transferred employees. They remained in the same office in Mechanicsburg. BCO-Mechanicsburg is now a tenant organization and remains physically in an office at NAVICP-Mechanicsburg.
In 1965, the Union was certified as the exclusive representative of a unit of all current and future nonsupervisory nonprofessional employees of what is now NAVICP-Mechanicsburg.
Organizationally, the head of the BCO-Mechanicsburg reports to the Regional Operations Division, Norfolk, which gives guidance to, and directly supervises, branch communications offices. [n1] The Regional Operations Division is one of three divisions under the Base Level Communications Department. All are under NCTAMS-LANT. According to the Agency, the four employees at issue "are in the same organizational component of the other 1134 NCTAMS LANT employees and support the same mission." Application for Review at 5. The parties stipulated that the employees of the Agency were not represented by any labor organization. RD's Decision at 6 n.9.
BCO-Mechanicsburg provides telecommunications services only to customers in the Mechanicsburg, Pennsylvania, area, including NAVICP-Mechanicsburg and its tenant activities. The transferred employees [ v56 p 229 ] include telecommunications technicians and telecommunications specialists. BCO-Mechanicsburg employees continue to perform duties including installing and maintaining telephone equipment. Among other responsibilities, they now also process, distribute and schedule work orders.
The RD determined that the Agency is a successor employer. As a result, he ordered that the Union be certified as the exclusive representative of a unit of employees at BCO-Mechanicsburg. In reaching this conclusion, the RD relied on the framework set out in Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme). The RD stated that to be considered an appropriate unit under section 7112(a), the evidence must show that: (1) the employees in the unit share a clear and identifiable community of interest; (2) the unit will promote effective dealings with the agency; and (3) the unit will promote efficiency of agency operations.
In terms of community of interest, the RD compared factors relating the transferred employees now in BCO-Mechanicsburg with the rest of the employees of Regional Operations Division, Norfolk, with whom the Agency claims they share a community of interest. He noted that it is undisputed that the employees of BCO-Mechanicsburg are part of the same organizational component of NCTAMS-LANT, support the same mission, have similar or related duties, and are subject to the same chain of command and general working conditions. However, the RD also found that
BCO-Mechanicsburg employees perform their duties at NAVICP-Mechanicsburg and do not usually work with other NCTAMS-LANT employees. In addition, there is little interchange between BCO-Mechanicsburg employees and other employees of the Activity's Regional Operations Division.
RD's Decision at 7. The RD determined, considering the "totality of the circumstances," that "the employees of BCO-Mechanicsburg share a clear and identifiable separate community of interest." Id.
With respect to the application of the other factors in section 7112(a), the RD stated that "[t]he Authority has held that, absent significant countervailing factors, if the evidence demonstrates that the employees in a proposed unit share a clear and identifiable community of interest, the unit will be found to promote effective dealings with and the efficient operations of the agency." Id. at 7. The RD stated that
The Authority does not place undue emphasis on centralized agency control of personnel and administrative matters when deciding effective dealings/efficiency of operations issues. . . . Here, the evidence does not establish that [the new unit at] BCO-Mechanicsburg is so functionally integrated with other agency components that the proposed unit would artificially fragment [the Activity] in [such a] significant manner to unduly interfere with the effective dealings with and the efficient operations of the agency.
Id. at 8, citations and footnote omitted.
In sum, the RD concluded that "BCO-Mechanicsburg is the successor activity" for the transferred employees and that the Union "retains its status as the exclusive representative of the employees who were transferred to the successor activity." Id. at 9.
III. Application for Review
The Agency states that review of the RD's decision is warranted because the decision "raises an issue for which there is an absence of precedent and the established law or policy of the Authority warrants its reconsideration. There is also a genuine issue over whether the Regional Director has failed to apply established law." Application for Review at 2. [n2]
The Agency's contention is that the RD departed from precedent, based on the assertion that the RD failed to apply United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950 (1997) (FISC) and Port Hueneme. The Agency argues that the RD failed to follow precedent by deciding the appropriate unit question on the basis of the community of interest factor, and "did not address in any detail" the evidence presented on effective dealings and efficiency of operations. Application for Review at 3. The Agency claims that the RD ignored the requirement of FISC that to find a separate appropriate unit, the employees sought must not have been so integrated, either physically or functionally, with other organizational components that a separate unit would cause undue unit fragmentation resulting in operational inefficiency and confusion in dealings between labor and management. The Agency also maintains that the unit sought bears no rational relationship to the Agency's operational and organizational structure. [ v56 p 230 ]
The Agency also contends in this regard that the RD was incorrect in finding that the four employees have a community of interest separate and distinct from the larger group of which they are now a part. According to the Agency, the four employees "are part of the same organizational component, . . . have a new chain of . . . supervisors, and are subject to the same general working conditions" as other employees assigned to the organization. Id. at 10.
The Agency adds that even if the Authority sustains the RD's community of interest finding,
when the evidence that he used to support community of interest is weighed against all the evidence that he left unexamined showing that effective dealings and efficiency of operations are not promoted, the community of interest finding does not outweigh the other evidence.
Finally, the Agency argues that the circumstances in this case are similar to those in FISC. In the Agency's view, these similarities lead to the result that the separate unit sought would not promote effective dealings, because the local supervisor does not have the authority to establish policies, procedures or working conditions and any collective bargaining agreement would be negotiated by and administered by NCTAMS- LANT management in Norfolk.
IV. Analysis and Conclusions
Section 7112(a) of the Statute provides, in pertinent part, that the Authority
shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved.
In this connection, the Authority stated in FISC that it has always required that any unit found to be appropriate satisfy each of the criteria set forth in section 7112(a). 52 FLRA at 961 n.6.
We find that the Regional Director's decision does not conform to the Statute and established law, as set forth in FISC. The Regional Director did not separately evaluate and make explicit findings with respect to each of these criteria. Instead, he stated that absent significant countervailing factors, if evidence demonstrates that the employees in a proposed unit share a clear and identifiable community of interest, then the unit will be found to promote effective dealings with and the efficient operations of the agency. The Statute and established law require consideration of all three factors, as noted above. Although, as is discussed in the Application for Review, the parties presented evidence relating to all three criteria, the RD did not separately address the second and third criteria. It is appropriate that he do so in the first instance. Accordingly, we remand the case to the RD to separately evaluate and make explicit findings on each of the criteria set forth in section 7112(a).
In addition, with regard to the community of interest criterion, the Agency challenges the RD's finding that the four transferred employees share a community of interest, asserting that the RD made factual findings that undermined his conclusion. While the Authority has not identified a specific number or weight of factors that must be found to support a conclusion with respect to the statutory criteria, see FISC, 52 FLRA at 960, it has explained how the various factors should be considered in a factual situation similar to that presented in this case. See id. at 964-67.
Here, the RD found various factors weighing both in favor of, and against, a finding of community of interest. However, he did not provide any explanation for his conclusion that the "totality of the circumstances" supported a finding that the criteria were satisfied. RD's Decision at 7. Accordingly, on remand, the RD should reexamine the issue of community of interest, as well as considering the issues of effective dealings with and efficiency of operations of the Agency. [n3]
Accordingly, the case is remanded for the Regional Director to consider all three factors set forth in section 7112(a) in determining whether there is an appropriate unit and to issue a decision consistent with those findings. Specifically, the Regional Director should evaluate whether the employees have a separate and distinct community of interest, as well as whether effective dealings and efficiency of Agency operations would be enhanced by a separate appropriate unit, in light of the guidance for making such a finding contained in FISC. In making his appropriate unit determination, the Regional Director also should consider the similarities and differences between the factual situation present in FISC and in this case. It would be helpful also to know the number of eligible employees in the gaining entity in order to aid in assessing whether the unit that is found appropriate would cause undue unit fragmentation.
Review is granted. The case is remanded to the Regional Director for further action consistent with this decision.
Footnote # 1 for 56 FLRA No. 28
Regional Operations Division, Norfolk, is responsible for direct supervision of five base communications offices in Pennsylvania and New Jersey, in addition to BCO-Mechanicsburg. It also provides guidance and policy to base communications offices in 32 states and three overseas locations.
Footnote # 2 for 56 FLRA No. 28
The Agency's argument relates only to its contention that the RD failed to apply established law. The Agency does not support its statement that review is warranted because there is an absence of precedent or need to reconsider precedent, and we do not address those matters further.
Footnote # 3 for 56 FLRA No. 28
Chairman Wasserman also would ask the Regional Director to consider whether the potential loss of union representation resulting from a reorganization, and the history of collective bargaining, are proper concerns in assessing community of interest.