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  • U.S. Securities and Exchange Commission, Washington, D.C. (Agency) and National Treasury Employees Union (Union)

U.S. Securities and Exchange Commission, Washington, D.C. (Agency) and National Treasury Employees Union (Union)

[ v56 p312 ]

56 FLRA No. 44

U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
(Union)

WA-RP-90086

_____

DECISION AND ORDER DENYING
APPLICATION FOR REVIEW

May 5, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.

I.     Statement of the Case

      This matter 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 (RD's) decision granting the Union's petition. The Union filed an opposition to the Agency's application.

      The RD found that the Union's proposed nationwide unit of Agency employees is appropriate under section 7112(a) of the Federal Service Labor-Management Relations Statute (Statute), and he directed an election in that unit. For the reasons set forth below, we deny the Agency's application for review.

II.     Background and RD's Decision

      The Union filed a petition seeking an election in a nationwide unit of Agency employees. The petitioned-for unit includes attorneys, accountants, securities compliance examiners, and support staff in all of the Agency's divisions. The employees in the Division of Enforcement at Headquarters and in the field offices examine and enforce the Federal securities laws. Employees in the other Headquarters Divisions administer other securities laws and regulations or perform work in support of those functions. The only eligible Agency employees excluded from the petitioned-for unit are the employees in the Agency's Northeast Region Office (NERO), who are represented by a different union.

      The RD found that the issue before him was whether "the nationwide unit petitioned for by [the Union] is an appropriate unit[,]" not necessarily "the only appropriate unit or the most appropriate unit." RD Decision at 12. The RD stated that, "although a smaller unit may well be appropriate, [the Union] is not precluded from seeking a larger unit as long as the nationwide unit is in and of itself also appropriate in light of all the circumstances." Id.

      As an initial matter, the RD rejected the Agency's argument that Authority case law concerning the consolidation of bargaining units is irrelevant in determining the appropriateness of a unit sought for election. The RD noted that all units -- consolidated and new -- must meet the same three appropriate unit criteria in section 7112(a) of the Statute. [n1] See id. at 12 (citing U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 55 FLRA 359 (1999) (Wright-Patterson AFB), and Army and Air Force Exchange Service, Dallas, Texas, 5 FLRA 657, 661-62 (1981) (AAFES)).

      In assessing the three criteria, the RD found first that the petitioned-for unit would ensure a clear and identifiable community of interest because all of the petitioned-for employees: (1) are in the same chain of command, (2) support the same mission, (3) are part of an integrated organization, and (4) are subject to the personnel policies and procedures set forth in the Agency's Personnel Operating Policies and Procedures Manual (POPPS), which are administered by the Headquarters Office of Administration and Personnel Management (OAPM). The RD found that, although field office and other managers have some discretion to establish working conditions, those conditions must be either consistent with the POPPS, or be approved by Headquarters personnel. The RD also found that there are no personnel, labor relations, or equal employment opportunity officials in the field offices, and that all new enforcement attorneys attend the same training. Based on the foregoing, the RD concluded that the petitioned-for employees share a community of interest.

      Second, the RD found that the petitioned-for unit would promote effective dealings with the Agency. The RD determined that the Agency had limited collective bargaining experience because only NERO employees [ v56 p313 ] are currently represented. The RD determined, however, that nothing in the Agency's collective bargaining experience at NERO would preclude effective dealings at the national level. The RD found that multiple units would require the Agency to negotiate and administer multiple agreements, which the RD found would "arguably make effective dealings more cumbersome." Id. at 18. The RD also found that, "[a] nationwide unit . . . would be consistent with the Authority's preference, other factors being equal, for promoting comprehensive bargaining units and reducing fragmentation in the bargaining unit structure . . . ." Id. According to the RD, although personnel authority within the Agency is centralized in OAPM, a nationwide unit would not preclude the parties from agreeing to delegate authority to bargain at the field level, and would not, by itself, limit field managers' discretion to address local matters.

      Third, the RD determined that the unit would promote efficiency of Agency operations. The RD found that the Agency's field offices are operationally integrated into the Agency's Division of Enforcement. The RD found that a nationwide unit would reflect that integrated structure. In addition, the RD determined that smaller units would result in increased costs of negotiating separate agreements, thereby hindering efficiency of Agency operations.

      The RD concluded that, "[a]lthough there are some factors supporting the appropriateness of a narrower unit, these factors do not establish the inappropriateness of a nationwide unit." Id. at 20. As such, the RD directed an election of employees employed by the Agency as of the date of his decision. In so doing, the RD denied the Agency's request to file a brief replying to the Union's post-hearing brief. The RD found that the issues raised by the Agency's proposed reply brief were "extensively addressed in the record and covered by the parties in their briefs." Id. at 2 n.2.

III.     Positions of the Parties

A.     Agency

      The Agency argues that the decision raises issues for which there is an absence of precedent. According to the Agency, the RD erroneously found that there is a preference for nationwide units. In this connection, the Agency contends that the preference for more comprehensive units in consolidation cases under section 7112(d) of the Statute does not apply to appropriate unit determinations regarding new units under section 7112(a) of the Statute. Further, the Agency claims that a preference for nationwide units would be inconsistent with section 7112(a) of the Statute because that section provides for maximum employee choice, and a nationwide unit reduces employee choice at the local level.

      The Agency also argues that the RD failed, in several respects, to apply established law. Initially, the Agency claims that, in cases involving delegations of personnel and labor authority to local levels, the Authority has found local units to be appropriate. According to the Agency, Authority precedent mandates separate regional units here because each regional office has staff who perform administrative and personnel duties and certain regional offices perform unique functions. Authority precedent also mandates a conclusion that the petitioned-for unit is inappropriate, according to the Agency, because it includes employees who are in different competitive areas for reduction-in-force (RIF) purposes.

      The Agency also maintains that the RD failed to apply established law with respect to the three appropriate unit criteria. With respect to the first criterion, the Agency claims that the RD's reliance on centralized personnel authority to find a community of interest would result in nationwide units at all Federal agencies --a result that the Agency claims is not required under section 7112(a) of the Statute. The Agency further claims that the RD applied an erroneous legal standard because he found that, in order to support separate communities of interest, local variations in personnel policies must be tied to unique local conditions. In addition, the Agency claims that the RD erred by weighing the similarity of employees' functions more heavily than the decentralization of personnel and labor relations authority, and by overemphasizing the fact that new employees undergo training at Headquarters.

      With respect to the second appropriate unit criterion, the Agency claims that the RD erred by finding that its collective bargaining experience at NERO did not preclude effective dealings at the national level. The Agency also claims that the RD applied an incorrect legal standard because, rather than finding that the proposed unit "will" promote effective dealings, he found that it "might somehow be possible . . . ." Application for Review at 55. Further, according to the Agency, the RD's finding that multiple units could make bargaining more cumbersome is inconsistent with Authority precedent holding that the number of units is not dispositive in determining whether a proposed unit is appropriate.

      With respect to the third appropriate unit criterion, the Agency argues that the RD's finding that a nationwide unit will promote efficiency of Agency operations would result in nationwide units at every Federal agency. The Agency also argues that a nationwide unit [ v56 p314 ] will restrict field office managers' flexibility to deal with local concerns, and will result in decreased efficiency for the entire Agency.

      According to the Agency, the RD committed clear and prejudicial errors concerning substantial factual matters. In particular, the Agency claims that, contrary to the RD's findings: personnel policies have been delegated to field offices and are based on unique local conditions; a nationwide unit would preclude the parties from delegating authority to bargain over local working conditions; a nationwide unit would circumscribe field office managers' discretion; employees in the petitioned-for unit do not support the same mission, because they perform different types of functions; the Agency does not have an operationally integrated workforce; and the petitioned-for unit would increase the Agency's costs.

      The Agency also contends that review is warranted because both the hearing officer and the RD committed prejudicial procedural errors. The Agency claims that the hearing officer erred in preventing the Agency from presenting certain witnesses who would have testified about local working conditions. The Agency asserts that the RD erred by declining to consider the Agency's reply to the Union's post-hearing brief. In this connection, the Agency argues that the Union raised a novel issue in its post-hearing brief -- that Authority precedent expresses a preference for nationwide units --and that the Agency should have been given the opportunity to address that issue.

      Finally, in the event that the Authority denies its application for review, the Agency requests that all eligible employees employed at the time of the Authority's decision be permitted to vote in the election because there has been significant turnover in staffing. [n2] 

B.     Union

      The Union claims that the Agency has failed to establish that there is an absence of applicable precedent. Specifically, the Union contends that the Authority has addressed the appropriateness of nationwide units, has held that all units must meet the same appropriate unit criteria, and has considered, in election as well as consolidation petitions, whether proposed units will reduce unit fragmentation and promote comprehensive unit structures. The Union also contends that the RD did not commit legal and factual errors in applying the appropriate unit criteria.

      The Union disputes the Agency's assertion that the hearing officer and the RD committed prejudicial procedural errors. The Union asserts that the hearing officer has broad discretion to conduct the hearing, that the excluded testimony was cumulative, and that the Agency fails to demonstrate how admitting such evidence would have affected the outcome. The Union also asserts that the RD properly denied the Agency's request to file a reply brief.

IV.     Analysis and Conclusions

A.     The Decision Does Not Raise Issues for Which There Is an Absence of Precedent.

      We reject the Agency's argument that review of the RD's decision is warranted because there is an absence of precedent with respect to the RD's finding that "the Authority has an overriding 'preference' for large, nationwide units." Application for Review at 35. The RD's statement that the Authority has a "preference, other factors being equal, for promoting comprehensive bargaining units and reducing fragmentation[,]" was made in the context of the RD's application of the third appropriate unit criterion, relating to "effective dealings[.]" RD Decision at 18. Rather than applying an overarching "preference" for nationwide units, the RD applied longstanding precedent concerning that criterion, finding that the proposed unit would promote effective dealings because, among other things, it would avoid the unit fragmentation that would make effective dealings more "cumbersome." Id.; see also United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 960 (1997) (FISC). Although Authority precedent does not set forth a "preference" for any particular unit structure, the RD's decision is consistent with the long established principle that the application of the appropriate unit criteria properly results in "broader, more comprehensive bargaining units." Department of Transportation, Federal Aviation Administration, Southwest Region, Tulsa Airway Facilities Sector, 3 FLRC 235, 239-41 (1975) (Department of Transportation). [n3] 

B.     The RD Did Not Fail to Apply Established Law.

      Determinations as to each of the three appropriate unit criteria are made on a case-by-case basis. See FISC, 52 FLRA at 960. The Authority has set out factors [ v56 p315 ] for assessing each criterion, 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) (Local 2004).

      Throughout its application, the Agency relies on cases finding local or regional units appropriate to support its position that the national unit requested in this case is inappropriate. See Application for Review at 40, 41, 42, 43, 54, 55, 57. [n4] Although those cases found regional or local units to be appropriate, they did not hold, and thus do not support the Agency's argument, that a nationwide unit is inappropriate. [n5] We note, in this connection, that the RD expressly recognized that smaller units might also be appropriate. See RD Decision at 20.

1.     Community of Interest

      In order to determine whether employees share a clear and identifiable community of interest, the Authority examines such factors as whether the employees in the unit are a part of the same organizational component of the agency; support the same mission; are subject to the same chain of command; have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same personnel office. Additional factors include: geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation. See FISC, 52 FLRA at 960-61, and cases cited therein.

      The Agency cites several Authority decisions finding no community of interest among employees in proposed consolidated nationwide units. While each of those decisions turns on a number of factors, central to all but one of them was the fact that the employees in the proposed consolidated were not widely distributed throughout the agencies. [n6]  B y contrast, in this case, the RD found that the Agency has an organizationally integrated workforce, and that (with the exception of the [ v56 p316 ] NERO employees) the petitioned-for unit would include all of the Agency's eligible employees. In the remaining decision, U.S. Department of Defense, National Guard Bureau, 55 FLRA 657 (1999), the Authority denied a petition to consolidate existing national guard units because the state national guard bureaus exercise independent statutory authority over the technicians who were at issue, and because missions and functions were not integrated across state lines. See 55 FLRA at 663. By contrast, here the Agency's regional offices have no independent statutory authority and the RD found that all Agency employees support a single, integrated mission.

      We reject the Agency's argument that the RD erred by relying on the existence of POPPS and OAPM in assessing the employees' community of interest and that, as a result, the RD's decision is contrary to section 7112(a). The RD's discussion of POPPS and OAPM is consistent with the fact that, in assessing community of interest, the Authority considers, among other things, whether unit employees are governed by the same personnel and labor relations policies that are administered by the same personnel office. See FISC, 52 FLRA at 960-61. Further, the Agency's argument that the RD's reliance on these factors would require nationwide units at all Federal agencies is based on the erroneous premise that the Authority has the authority to mandate nationwide units even where petitions requesting such units have not been filed. As such, that argument is misplaced.

      The Agency further argues that the RD applied an erroneous legal standard because, according to the Agency, he found that, in order to support separate units, local variations in personnel policies must be tied to uniquely local conditions. However, the RD did not make such a finding. Rather, he found that most personnel policies at the Agency are established and administered centrally, and that any local variations must be approved by Headquarters. See RD Decision at 8. Thus, the Agency has not demonstrated that the RD applied an erroneous legal standard as alleged.

      In addition, the Agency contends that the RD erred by failing to accord sufficient weight to the decentralized nature of Agency decision making regarding personnel matters, by placing too much emphasis on the fact that the unit employees perform similar functions, and by not mandating that employees in separate competitive areas for RIF purposes be in separate bargaining units. However, as discussed below, the Agency has not demonstrated that the RD erred in finding that this decision making is centralized. In addition, the RD did not weigh one factor more heavily than another in assessing whether employees share a community of interest. See generally RD Decision at 13-18. Further, while separate RIF competitive areas may be a factor in assessing community of interest, there is no precedent supporting the Agency's argument that this issue should be considered dispositive. See Local 2004, 47 FLRA at 972. Accordingly, the Agency has not demonstrated that the RD erred in this regard.

      The Agency also has not demonstrated that the RD placed too much emphasis on the fact that new Agency employees undergo training at Headquarters. Although the RD cited the fact in support of his finding that the employees share a community of interest, the RD relied on a several factors -- and did not emphasize any single factor -- in reaching that conclusion. This is consistent with Authority precedent that has not specified a particular weight to be accorded individual factors in assessing whether a unit is appropriate. See Local 2004, 47 FLRA at 972. Thus, even if most employee training is handled locally, that would not support a conclusion that the RD failed to apply established law in finding that the employees share a community of interest.

2.     Effective Dealings

      The Agency claims that the RD erred by finding that the local collective bargaining experience at the Agency does not preclude effective dealings at the national level. The Agency's claim is based on the erroneous premise that, if local units are appropriate, then a nationwide unit is necessarily inappropriate. As discussed previously, the Authority requires only that a proposed unit be an appropriate unit, not the only, or the most, appropriate unit. See Department of the Navy, Naval Supply Center, Puget Sound, Bremerton, Washington, 53 FLRA 173, 183 n.9 (1997). Applying this principle, the RD correctly determined that, although regional units may also be appropriate, that does not preclude a finding that a nationwide unit may also be appropriate.

      The Agency also claims that the RD applied an incorrect legal standard because, rather than finding that the proposed unit will promote effective dealings, he found that the unit could promote effective dealings. However, there has been no Agency experience with collective bargaining at the national level. In these circumstances, there is no support in the record for the proposition that the RD was precluded from certifying the proposed unit unless he found that the unit will promote effective dealings. We note, in this connection, that the RD applied the established factors underlying the effective dealings criterion and found, as relevant here, that multiple units would result in more cumbersome [ v56 p317 ] dealings than would a nationwide unit. See RD Decision at 18-19. This is consistent with Authority cases holding that reducing and preventing unit fragmentation tends to promote effective dealings. See Library of Congress and Fraternal Order of Police, Library of Congress Police Force Labor Committee, 16 FLRA 429, 431 (1984).

      Finally, the Agency challenges the RD's finding that multiple units could make bargaining more cumbersome. According to the Agency, this finding is inconsistent with Authority precedent holding that the number of units is not dispositive in determining whether a proposed unit is appropriate. Although the RD found that this factor was relevant to his analysis, he did not find it dispositive. See RD Decision at 18-19. This is consistent with Authority precedent holding that, although the number of bargaining units is not dispositive in assessing whether a proposed unit is appropriate, it may be relevant to that analysis. See Walter Reed Army Medical Center, 52 FLRA 852, 856 n.4 (1997).

3.     Efficiency of Agency Operations

      The Agency challenges the RD's reliance on his finding that a nationwide unit would result in reduced costs. According to the Agency, this finding would result in nationwide units at all Federal agencies. As noted above, this argument is misplaced because it is based on the erroneous premise that the Authority has the authority to mandate nationwide units at other Federal agencies. Further, although the RD found that a reduction in costs supports a finding that a nationwide unit is appropriate, he did not determine that this factor, by itself, mandated a nationwide unit. Rather, he expressly acknowledged that other units might also be appropriate. See RD Decision at 20. In addition, the RD expressly acknowledged that a nationwide unit would not preclude the parties from delegating authority to the local level. See RD Decision at 19. Consistent with this finding, we reject the Agency's claim that a nationwide unit will restrict field office discretion involving local concerns and, as a result, will decrease efficiency in the Agency.

      In sum, we conclude that the RD did not fail to apply established law in finding the unit to be appropriate.

C.     The RD Did Not Commit Clear and Prejudicial Errors Concerning Substantial Factual Matters.

      As discussed below, the Agency challenges several factual findings by the RD.

  • The Agency asserts that the RD erred by finding that personnel policies are not set locally. However, the RD expressly acknowledged that certain policies varied among the field offices and between Headquarters and the field offices. See RD Decision at 15. Moreover, the RD found that all of the Agency's employees are subject to the personnel policies set forth in POPPS, and any local variations must be approved by Headquarters. See id. at 16. The record supports the RD's findings. See, e.g., Jt. Exh. 153 at 200.A; Transcript at 545-49. Even if certain matters are delegated to field offices, the record supports the RD's finding that most personnel matters are set by POPPS and OAPM, not locally. See generally Jt. Exh. 153 (POPPS). Thus, the Agency has not demonstrated that the RD committed a clear and prejudicial error concerning a substantial factual matter.
     
  • The Agency contends that, given the Union's opposition to multiple units, the RD erred by finding that a nationwide unit would not preclude the parties from delegating authority to the local level. The Agency also contends that the RD erred by finding that the existence of a nationwide unit would not, by itself, circumscribe field office discretion to establish policies in response to local working conditions. However, the fact that the Union wishes to bargain at the national level does not establish that the Union would not agree to permit local negotiations on local matters and does not otherwise preclude local Agency officials from exercising any discretion provided them by management at the national level. As a result, there is no basis for concluding that a nationwide unit necessarily would circumscribe field office discretion to negotiate over such matters. Thus, the Agency's arguments do not demonstrate that the RD committed a clear and prejudicial error concerning a substantial factual matter.
     
  • The Agency argues that the RD erred by finding that all of the employees in the petitioned-for unit support the same mission because different employees perform different types of functions. The RD expressly found that the employees perform different functions, but that those functions are "essentially the same" and are all performed in [ v56 p318 ] support of the same broad mission: enforcement of the nation's securities laws. RD Decision at 5. This is consistent with Authority precedent acknowledging that employees may be in the same unit even though they perform differing functions. See, e.g., AAFES, 5 FLRA at 661 (holding that, although employees performed different functions, it was "clear that their function is integrally related" to the other employees). Accordingly, the Agency has not demonstrated that the RD committed a clear and prejudicial error concerning a substantial factual matter in this regard.
     
  • The Agency claims that the RD erred by finding that the Agency has an operationally integrated workforce and that the non-enforcement divisions only perform staff support for the enforcement divisions. The RD expressly acknowledged that some operational components of Headquarters might not be directly involved in enforcement proceedings. See RD Decision at 20. However, he also found that they are engaged in similar enforcement of securities laws for which the Agency does not require a field structure. See id. The Agency has cited no evidence indicating that the RD erred in this connection. Accordingly, the Agency has not demonstrated that the RD committed a clear and prejudicial error concerning a substantial factual matter.
     
  • The Agency claims that, by finding that the unit would promote efficiency of Agency operations, the RD ignored evidence purportedly demonstrating that a nationwide unit will increase the Agency's costs. The Agency cites no authority supporting a conclusion that, if a proposed unit will result in any increase in an agency's costs, then that unit must be found inappropriate. Further, it is unclear how the nationwide unit would be more costly than the Agency's proposed alternative: multiple units, with multiple collective bargaining agreements and grievance procedures. Accordingly, we find that the Agency has not demonstrated that the RD committed clear and prejudicial error concerning a substantial factual matter.
     

          For the foregoing reasons, we find that the RD did not commit clear and prejudicial errors concerning substantial factual matters.

D.     The Hearing Officer and the RD Did Not Commit Prejudicial Procedural Errors.

      Section 2422.21(b) of the Authority's Regulations states, in pertinent part, that "the Hearing Officer may take any action necessary to schedule, conduct, continue, control, and regulate the hearing[.]" 5 C.F.R. § 2422.21(b). As such, the Hearing Officer had the discretion to limit the number of witnesses presented by the parties, and the Agency has not demonstrated that the Hearing Officer's decision to limit the number of witnesses constitutes a prejudicial procedural error within the meaning of section 2422.31(c)(3)(ii) of the Authority's Regulations. Further, the record reflects that, although the Hearing Officer did not allow certain witnesses to testify, he permitted the Agency to summarize the testimony that would have been presented by those witnesses. See Transcript at 589-91. As such, the Agency was given the opportunity to provide all relevant evidence to the Hearing Officer, albeit not in the form of live witness testimony. The Agency has not explained why summarizing the testimony it wished to introduce could not establish the variations in local conditions to the same extent that live witness testimony could. Therefore, the Agency was not prejudiced by the alleged procedural error.

      With respect to the RD's refusal to consider the Agency's reply brief, the Authority's Regulations provide the RD with discretion to decline to consider that document. See 5 C.F.R. § 2422.20(d)(3) (stating that "[n]o reply brief may be filed without permission of the Regional Director"). Further, according to the Agency, its reply brief should have been considered because it explains why there is no preference in the Statute for nationwide units. As discussed supra at section IV.A., the RD did not base his decision on such a preference and, as a result, even if the RD considered the Agency's reply brief, such consideration would not have resulted in a different conclusion. Therefore, exclusion of that brief did not prejudice the Agency.

      For the foregoing reasons, we find that the Hearing Officer and the RD did not commit prejudicial procedural errors that warrant granting the application for review. [ v56 p319 ]

E.     We Will Not Amend the RD's Determination Regarding the Eligibility Period of Employees.

      Section 2422.16(b) of the Authority's Regulations provides that, if the parties are unable to agree on the eligibility period for an election, then the RD will decide election procedures and issue a Direction of Election. See 5 C.F.R. § 2422.16(b). As there is no evidence or assertion that the parties reached an agreement as to the eligibility period, the RD had discretion to determine which employees are eligible to vote in the election. The Agency has not alleged that the RD abused this discretion.

      Given the Agency's claim, before the Authority, that employee turnover has been extensive, the Agency's request to amend the Direction of Election to include newly-hired employees should be made to the RD. This request is properly addressed to the RD, not only because the RD has the regulatory discretion to determine the eligibility period, but also because section 2422.31(c) of the Authority's Regulations states that the Authority "may grant an application for review only when the application demonstrates that review is warranted" on one of several enumerated grounds. No such grounds have been asserted with regard to this issue.

VI.     Order

      The application for review is denied.

Footnote # 1 for 56 FLRA No. 44

   Section 7112(a) of the Statute provides, in pertinent part: "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."

Footnote # 2 for 56 FLRA No. 44

   The Agency also requests the opportunity to present oral argument in support of its application for review. As the record is sufficient to resolve the issues presented in the application for review, we find that oral argument is unnecessary, and, under section 2429.6 of our Regulations, we deny the Agency's request. See National Treasury Employees Union and Department of Health and Human Services, Region V, Chicago, Illinois, 25 FLRA 1110, 1110 n.1 (1987).

Footnote # 3 for 56 FLRA No. 44

   On a related point, we reject the Agency's contention that precedent developed in connection with consolidation petitions does not apply in cases involving election petitions. All proposed units must meet the same statutory standards for appropriateness. See 5 U.S.C. §§ 7111(b)(1)(A); 7112(a); 7112(d). See also Wright-Patterson AFB, 55 FLRA at 361-62. We note that the Authority has considered the extent of potential unit fragmentation in assessing the appropriateness of both new and consolidated units. See, e.g., Local No. 3, International Federation of Professional and Technical Engineers, AFL-CIO-CLC, 7 FLRA 626, 627 (1982) (IFPTE) (unit fragmentation not promoting effective dealings in a new unit); cf. Department of Transportation, 3 FLRC at 239-41 (holding that application of the three appropriate unit criteria in all cases, including cases involving "newly sought units," should result in more comprehensive units). In addition, we reject, as unsubstantiated, the Agency's contention that the RD's decision is inconsistent with section 7112(a) of the Statute because a nationwide unit would reduce employee choice at the local level. We note that the proposed nationwide unit in this case was petitioned-for by employees and must be approved by employees before it becomes effective.

Footnote # 4 for 56 FLRA No. 44

   The Agency relies on Department of Health and Human Services, Navajo Area Indian Health Service, Shiprock Service Unit, Shiprock, New Mexico, 49 FLRA 1375 (1994) (HHS); U.S. Department of Defense Dependents Schools, 48 FLRA 1076 (1993) (DODDS); U.S. Department of Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Illinois, 48 FLRA 620, 634-35 (1993); U.S. Geological Survey, Water Resources Division, Southeastern Region, Caribbean District , 46 FLRA 832, 843 (1992); Defense Logistics Agency, Defense Contract Management Command, Defense Contract Management District, North Central, Defense Plant Representative Office-Thiokol, Brigham City, Utah, 41 FLRA 316, 329 (1991; U.S. Fish and Wildlife Service, Finance Center, Denver, Colorado, 14 FLRA 153, 155 (1984); Department of Defense, U.S. Military Enlistment Processing Command, Headquarters, Western Sector, Oakland Army Base, Oakland, California, 5 FLRA 3, 5 (1981).

Footnote # 5 for 56 FLRA No. 44

   The Agency's reliance on HHS and DODDS is misplaced for additional reasons. In HHS, 49 FLRA at 1383, the Authority rejected the activity's claim that an existing unit had accreted into a larger unit; the Authority expressed no view on whether the two units could have been combined into one in an initial election. Similarly, in DODDS, 48 FLRA at 1086, the Authority rejected the agency's claim that, as a result of a reorganization, a regional unit had accreted into a larger unit. The Authority concluded that, both before and after the reorganization, "both a worldwide unit and regionwide units were equally appropriate." Id. DODDS thus illustrates the point that more than one unit may be appropriate.

Footnote # 6 for 56 FLRA No. 44

   See Department of Agriculture, Farmers Home Administration, 20 FLRA 216, 221 (1985) (employees located at only 6 out of 46 of the activity's state offices); U.S. Department of Justice, 17 FLRA 58, 62 (1985) (employees located at only 3 out of 6 of the agency's bureaus, and at scattered components of the agency's offices, boards, and divisions); U.S. Department of Housing and Urban Development, 15 FLRA 497, 500 (1984) (employees located at only 3 out of 10 regional offices, 8 out of 40 area offices, and 6 out of 55 service offices); Department of Health and Human Services, 13 FLRA 39, 42 (1983) (employees located at only 4 out of 10 of the agency's regional offices); U.S. Army Materiel Development and Readiness Command, 11 FLRA 156, 160 (1983) (employees at 2 out of 14 major subordinate commands, 2 out of 13 activities and 25 ammunition plants, and 1 out of 11 testing activities); U.S. Army and Training Doctrine Command, 11 FLRA 105, 109 (1983) (employees at only 5 out of 17 installations); Department of Health and Human Services, Office of the Secretary, 11 FLRA 59, 63 (1983) (employees in only 5 out of 10 regions); Department of Defense, U.S. Army Corps of Engineers, 5 FLRA 677, 681 (1981) (employees at only 2 of the 10 field activities and 4 of 14 division offices).