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57 FLRA No. 35
SHEPPARD AIR FORCE BASE
WICHITA FALLS, TEXAS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 779
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1731
ORDER DENYING APPLICATION FOR REVIEW
May 8, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members.
I. Statement of the Case
This case is before the Authority pursuant to § 2422.31 of the Authority's Regulations on Petitioner's application for review of the Regional Director's (RD's) decision dismissing its petition to consolidate two bargaining units represented by separate labor organizations (hereinafter "local unions"). The RD concluded that: (1) the Agency had standing to file the petition to consolidate the units over the objection of both local unions; and (2) the proposed unit was not appropriate, as defined by § 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute). The Union filed an opposition to the Petitioner's application.
For the following reasons, we deny the application for review of the RD's decision to dismiss the petition to consolidate units.
II. Background and the RD's Decision
The Activity filed a petition to consolidate the bargaining unit of Wage Grade (WG) employees represented by AFGE Local 1731 with the bargaining unit of non-professional and professional General Schedule (GS) employees represented by AFGE Local 779, at Sheppard Air Force Base. Local 1731 filed objections to the petition, contending that the Agency "had no basis to seek a consolidation of the two units under § 7112(d)[, since] the certifications of exclusive representation are held by the Local Unions and not by the AFGE National Organization and that each Local represents separate and distinct units which operate independently under separate collective bargaining agreements." [n1] RD's Decision at 2. The Petitioner asserted that the consolidation petition was properly filed because the local unions are affiliated with the same national organization.
The RD addressed two issues: (1) whether the Activity had standing to file a petition seeking to consolidate two bargaining units when the local unions object to the consolidation under § 7112(d) of the Statute; [n2] and (2) whether the proposed consolidated unit met the appropriate unit criteria under § 7112(a) of the Statute. First, the RD concluded that agencies have the right to file petitions to consolidate units over the objections of the exclusive representatives of those units. [n3]
Second, regarding the appropriate unit criteria, the RD concluded that the employees in the consolidated unit did not share a clear and identifiable community of interest and that the consolidation would not promote effective dealings with and efficient operations of the Agency. With regard to the community of interest factor, the RD acknowledged that the employees in both units "share a common mission and organizational structure, common safety and health guidelines, common chains of command, . . . occupy the same general geographic proximity, . . . share the same financial office, personnel office, labor relations office, and payroll office, [as well as] go through the same process for [ v57 p149 ] hiring, . . . promotions [and awards, and] attend base-wide training [on] traffic safety, sex discrimination and Equal Employment Opportunity [matters]." Id. at 18. Notwithstanding these factors in common, the RD found no community of interest because there were differences in duties, job titles, work assignments, general working conditions, qualification standards, and pay scale. Id. at 19. The RD also noted that there was "limited exchange between the employees in the proposed consolidated unit." Id. Lastly, the RD concluded that the "record d[id] not support a finding that the consolidation would promote effective dealings and efficient operations [as] the only evidence offered by the Activity in this regard is that some supervisors become confused in administering two different collective bargaining agreements." Id. at 20.
III. Application for Review
The Activity seeks review of the RD's determination that the proposed consolidated unit is not appropriate. The Activity maintains that the RD improperly applied the statutory appropriate unit criteria under § 7112(a) and that the proposed consolidated unit satisfies all three appropriate unit criteria. Application at 11, 20. With regard to whether employees share a community of interest, the Activity cites numerous examples in support of its claim that WG and GS employees are "integrated throughout the work force," and "work together everyday on a wide variety of projects." Id. at 16. The Agency also states that reduction-in-force authority and disciplinary actions for both units are handled by the same personnel offices, that employees in both units are subject to the same process for hiring, promotions and awards, and that they attend base-wide training on a number of matters. In addition, the Activity maintains that there are several problems with having two collective bargaining agreements, noting that supervisors are confused by the different grievance procedures under the two agreements and that negotiations involve two different management teams. With a consolidated unit, the Activity argues that "[o]ne advantage is dealing with one set of union officials instead of the current two sets." Id. at 19.
IV. Union's Opposition [n4]
As a preliminary matter, the Union argues that the Activity's application for review should be dismissed since the Activity "does not allege a single ground on which to grant its application" under § 2422.31(c) of the Authority's Regulations. [n5] Opposition at 3.
On the merits, the Union contends that if review is granted, the Authority should "conduct a de novo review" of the RD's determination that the Activity can "force" the consolidation of two units over the objection of the impacted labor organizations. Opposition at 3. The Union maintains that an agency petition to consolidate under these circumstances would require certification of one of the two existing exclusive representatives or of a third party, such as a council or AFGE national. The Union claims that "[s]ince all [of] a labor organization's rights flow from being certified as the exclusive representative, one local would have the legal responsibilities and authority to represent employees, while the other local, [which] does not hold recognition, in effect, [would] become part of the other local's bargaining unit and cease [to have a] separate identity." Id. at 10-11. In this connection, the Union maintains that this situation "would create an artificial question concerning representation since it would pit one labor organization against the other." Id. at 11. Further, the Union contends that granting the petition will in effect force AFGE, or its locals to form and charter a new labor organization at the level of recognition. Id. at 12. In sum, the Union maintains that if the Activity's consolidation petition is granted, "either one [l]ocal would hold recognition effectively depriving a certain percentage of employees [of] their selected representative or a new labor organization would be thrust on AFGE or its subordinate [l]ocals." Id.
V. Analysis and Conclusions
Under § 7112(d) of the Statute, two or more bargaining units represented by the same union may be consolidated "if the Authority considers the larger unit to be appropriate." See United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 55 FLRA 359, 361 (1999). The reference in § 7112(d) to the consolidation of "appropriate" units incorporates the appropriate unit criteria established in § 7112(a). [n6] In order for a unit to be considered appropriate, all three criteria--community of interest, effective dealings, and efficiency of agency [ v57 p150 ] operations--must be met. The Authority has identified a number of factors that indicate whether these statutory criteria are met, see generally, United States Dep't of the Navy, Fleet and Industrial Supply Ctr., Norfolk, Va., 52 FLRA 950, 960-61 (1997) (FISC), and has consistently applied these factors on a case-by-case basis. See United States Dep't of Justice, 17 FLRA 58 (1985); Army and Air Force Exchange Service, Dallas, Tex., 5 FLRA 657, 660-61 (1981).
As relevant here, in examining whether consolidation would promote effective dealings, the Authority has emphasized that this criterion involves the relationship between management and the exclusive representative selected by unit employees in an appropriate bargaining unit. See FISC, 52 FLRA at 961. We find that the specific factual circumstances in this case demonstrate a basic impediment to the establishment of the relationship between management and the exclusive representative of the proposed consolidated unit, which strikes at the heart of the effective dealings criterion. In particular, the certifications of exclusive representation for the existing units are held by separate local unions, and there is no apparent, or asserted, bargaining representative for the consolidated unit. In this regard, neither the Agency nor the RD identified an exclusive representative that would be certified to represent the consolidated unit. Although both local unions are affiliates of AFGE, AFGE was not a party below and there is no basis in the record to conclude that AFGE could serve in that capacity. Without an identified labor organization to serve as the exclusive representative, it is not possible to find that the consolidated unit would promote effective dealings between a labor organization and the Agency. That is, certification of the consolidated unit could not promote effective dealings between the parties because the fundamental issue of which labor organization should be certified to bargain or deal with management on behalf of the consolidated unit is unresolved. [n7]
Based on the foregoing, we find no basis for granting review of the RD's determination that the proposed consolidated unit is not appropriate.
The Application for Review of the RD's Decision and Order is denied.
Footnote # 1 for 57 FLRA No. 35
Although the certifications are not contained in the record before the Authority, the RD found sufficient documentary evidence to conclude, and the Agency does not dispute, that each local holds certification for its respective unit. See RD's Decision at 2-3.
Footnote # 2 for 57 FLRA No. 35
Two or more units which are in an agency and for which a labor organization is the exclusive representative may, upon petition by the agency or labor organization, be consolidated with or without an election into a single larger unit if the Authority considers the larger unit to be appropriate. The Authority shall certify the labor organization as the exclusive representative of the new larger unit.
Footnote # 3 for 57 FLRA No. 35
This conclusion is not challenged by the Petitioner in its application for review and is not before us. However, we do not adopt the RD's conclusion on this issue and express our doubt that, in situations where certifications of existing units are held by different local unions and there is no identified representative for a consolidated unit, there is "a labor organization [which] is the exclusive representative" under § 7112(d). Further, in Member Wasserman's view, the Authority should not entertain a petition to consolidate the units in the limited circumstances in this case where there are two separate exclusive representatives that object to the consolidation.
Footnote # 4 for 57 FLRA No. 35
Both local unions designated AFGE National to represent their interests in this case and, the Opposition was filed by AFGE National. See Attachments to Opposition. However, the Opposition notes that AFGE National was not served with a copy of the consolidation petition, post-hearing brief or application for review in the instant matter.
Footnote # 5 for 57 FLRA No. 35
We find that this claim is without merit. It is evident that the Petitioner's application seeks review on the ground that the RD failed to apply established law under § 2422.31(c)(3)(i) of the Authority's Regulations.
Footnote # 6 for 57 FLRA No. 35
The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation functional, or other basis and 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 # 7 for 57 FLRA No. 35
Because all three criteria must be met, and in view of our finding that the proposed consolidated unit would not promote effective dealings, we do not adopt the RD's conclusions that the employees in the consolidated unit do not share a community of interest and that the consolidated unit would not promote efficiency of operations. We note, however, that based on our review of the record, it appears that the RD did not correctly apply the factors to be considered in making community of interest determinations. See United States Dep't of the Interior, Nat'l Park Service, Rocky Mountain Nat'l Park, Estes Park, Colo., 48 FLRA 1404, 1406-09 (1994).