U.S. Department of the Navy, Southern Division, Naval Facilities Engineering Command, North Charleston, South Carolina (Activity) and American Federation of Government Employees, AFL-CIO, Local 2298, Goose Creek, South Carolina (Petitioner/Incumbent) and American Federation of Government Employees, AFL-CIO, Local 2010, Mayport Naval Station, Mayport, Florida (Petitioner/Incumbent) and American Federation of Government Employees, AFL-CIO, Local 2326, Great Lakes Naval Base, Great Lakes, Illinois (Intervenor/Incumbent) and International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 192, Pensacola Naval Air Station, Pensacola, Florida (Intervenor/Incumbent)

[ v57 p216 ]

57 FLRA No. 46












May 25, 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 on an application for review filed by the American Federation of Government Employees, 5th District, (Union) under section 2422.31 of the Authority's Regulations. The Agency filed an opposition to the application.

      The Regional Director (RD) dismissed two representation petitions that sought to clarify whether, following an Agency reorganization, four of the Agency's field offices were successor employers and, consequently, whether the exclusive representatives continue to represent affected unit employees. The Union seeks review of the dismissal of one petition, pertaining to the status of the American Federation of Government Employees (AFGE) Local 2010, at one of the field offices. [n1] 

      For the reasons explained below, we find that the RD failed to apply established law and committed a clear and prejudicial error concerning a substantial factual matter.

      Accordingly, we grant the application and remand this case to the RD for action consistent with this decision.

II.     Background and Regional Director's Decision

      The petitions were filed following a realignment that established the U.S. Department of the Navy, Southern Division Naval Facilities Engineering Command [Southern Division], North Charleston, South Carolina, as the new command authority for, among others, four groups of employees formerly working under authority of the Navy Public Works Centers (PWC), Naval Facilities Engineering Command (NAVFAC), U.S. Department of the Navy. The field offices within the Construction Department of Southern Division are also referred to as "The Resident Officer in Charge of Construction" or "ROICC" offices. See RD's Decision at 3 n.3. Throughout this decision, the Southern Division field offices will be referred to as ROICC offices. As relevant here, AFGE Local 2010 represented 31 employees located at PWC Jacksonville, Florida, who were realigned to ROICC Jacksonville. The petition in Case No. AT-RP-90050 was filed by AFGE Local 2010, seeking to represent employees at ROICC Jacksonville.

      Prior to the realignment, the PWCs, including PWC Jacksonville, had limited authority to issue contract warrants for service contracts and minor construction. [n2]  All employees either performed contracting [ v57 p217 ] functions or supported the contracting work done by other employees. The effect of the realignment was to transfer the PWCs' contract work to Southern Division. The contract warrants issued by Southern Division are issued for service contracts, architect and engineering services, environmental contracts, contract administration, and military construction.

      The RD determined that ROICC Jacksonville was not a successor employer, and that no accretion of employees into existing bargaining units had occurred. In reaching these conclusions, the RD relied on United States Dep't of the Navy, Fleet Indus. Supply Center, Norfolk, Va., 52 FLRA 950, 958-59 (1997), and Naval Facilities Eng'g Serv. Ctr., Port Hueneme, Cal., 50 FLRA 363 (1995) (Port Hueneme).

      With respect to the first Port Hueneme requirement that the transferred employees must be in an appropriate bargaining unit after the transfer, constituting a majority of employees in such unit, the RD found that the 31 employees who transferred to ROICC Jacksonville "constitute a majority of the employees in the gaining organizations." RD's decision at 16. With respect to whether the employees of ROICC Jacksonville constitute an appropriate unit, the RD found that they are "in a separate, distinct unit . . . are subject to Southern Division's centralized command structure . . . share a common organization, chain of command, mission and funding structure with all other employees in Southern Division . . . share the same awards system, the same standard performance appraisal system, the same Southern Division policy instructions, the same competitive area for recruiting, the same pay procedures and the same computer network system . . . [and] are subject to the same centralized personnel and labor policies as other Southern Division employees." Id. at 16-17. The RD also determined that "ROICC Jacksonville employees have a clear and identifiable community of interest with the other employees of Southern Division, not PWC Jacksonville." Id. at 17.

      Next, the RD addressed the second Port Hueneme requirement: that the gaining employer have substantially the same organizational mission as the losing employer and the transferred employees perform substantially the same duties and functions under substantially the same working conditions. The RD concluded that this requirement had not been met. The RD stated that the "Southern Division's mission is broader in scope than the former PWC mission. The employees who transferred to ROICC Jacksonville have new position descriptions reflecting this broader mission and have received additional training and work opportunities consistent with this broader mission." Id. The RD concluded that the "realigned Jacksonville employees are performing new and more complex contracting work, in addition to the facilities work they performed while at the PWC Jacksonville. Based on the foregoing, I conclude that ROICC Jacksonville is not a successor employer for PWC Jacksonville." Id.

      Finally, the RD determined that no accretion had occurred in this case. The RD found that the employees from PWC Jacksonville were realigned into a group of unrepresented employees. The RD reasoned that, "[s]ince Southern Division (including the individual ROICC offices) is not represented by any exclusive representative at this time, there can be no accretion." Id.

III.     Positions of the Parties

A.     Application for Review

      The Union contends that there is a genuine issue over: (1) whether the RD failed to apply established law; and (2) whether the RD committed clear and prejudicial errors concerning substantial factual matters.

      The Union argues that, in applying Port Hueneme and assessing the similarity in mission and duties between ROICC Jacksonville and PWC Jacksonville, the former employer, the RD improperly relied on "management interpretation of the duties, work, locations etc. of the 31 bargaining unit employees transferred from PWC Jacksonville to ROICC Jacksonville . . . . " Application for Review at 2-3. The Union claims that the focus of the RD's inquiry should have been directed, from the "employees perspective," upon "whether the employer[']s operations, as they effect [sic] unit employees remain essentially the same after the transfer." Id. at 3.

      The Union also points to several factual errors that it claims the RD made. According to the Union, the RD failed to recognize that, after the realignment, the employees worked under the same position description as they had previously, were in the same work location, and did the same work under the same basic chain of command. The Union states that, although the "RD relied upon Agency testimony that the employees work under different position descriptions," those descriptions "were not changed until June 2000, a couple of years after the realignment and prior to the September 2000 hearing." Id. at 4. The Union also claims that "the RD ignored the employees' perspective that the same personnel office" serves the employees who were [ v57 p218 ] realigned from PWC Jacksonville to ROICC Jacksonville. Id.

B.     Opposition

      The Agency argues that "[t]he RD provided ample and detailed justification, for her finding that the Southern Division mission has a broader scope than the PWC Jax mission and that, in turn, the duties, functions, and day to day working conditions of the realigned employees at ROICC Jacksonville have been significantly affected by all of the changes in their mission." Opposition at 5. As such, the Agency claims that the RD properly applied Port Hueneme in determining that ROICC Jacksonville is not a successor employer.

IV.     Analysis and Conclusions

A.     The Port Hueneme Framework

      Under Port Hueneme, the Authority will find that a gaining entity is a successor employer and a union retains its status as the exclusive representative of the employees who are transferred to the successor employer when:

(1)     An entire recognized unit, or a portion thereof, is transferred and the transferred employees: (a) are in an appropriate bargaining unit, under § 7112 (a)(1) of the Statute, after the transfer; and (b) constitute a majority of the employees in such unit;
(2)     The gaining entity has substantially the same organizational mission as the losing entity, with the transferred employees performing substantially the same duties and functions under substantially similar working conditions in the gaining entity; and
(3)     It has not been demonstrated that an election is necessary to determine representation.

Port Hueneme, 50 FLRA at 368.

B.     The RD Failed to Determine Whether ROICC Jacksonville Constitutes an Appropriate Unit Under Prong I of Port Hueneme

      Consistent with the framework set forth above, the RD found that a portion of AFGE Local 2010's unit had been transferred from PWC Jacksonville to ROICC Jacksonville. The RD also found that the 31 employees who transferred from PWC Jacksonville constituted a majority of the new unit. However, the RD did not determine whether a unit at ROICC Jacksonville is an appropriate unit under § 7112(a) of the Statute. Under that section, a unit may be determined appropriate only if it will ensure a clear and identifiable community of interest among the employees in the unit and promote effective dealing with, and efficiency of the operations of, the agency involved. The Statute and established law require all three factors set forth in § 7112(a) to be satisfied for a unit to be found appropriate. See, e.g., Dep't of the Navy, Naval Computer and Telecomm. Area, Master Station-Atlantic Base Level Communications Dep't, Reg'l Operations Division, Norfolk, Va., Base Communications Office-Mechanicsburg, 56 FLRA 228, 230 (2000) (case remanded to RD for consideration of all three factors set forth in § 7112(a)).

      On remand, the RD is directed to address whether the employees in the petitioned-for unit at ROICC Jacksonville constitute an appropriate unit. In this regard, the RD need not consider whether the entire Southern Division would be an appropriate unit because: (1) the Union has not sought to represent that unit, and (2) the 31 transferred employees would not be a majority of that unit. It is also unnecessary for the RD to decide whether the transferred employees share a community of interest with employees at PWC Jacksonville, since the inquiry concerns the gaining entity, not the losing entity. See RD's Decision at 17.

      If the RD determines that the petitioned-for ROICC Jacksonville unit constitutes an appropriate bargaining unit, then, since the transferred employees constitute a majority of the unit, the first prong of the Port Hueneme framework has been met.

C.     The RD Erred in Finding that ROICC Jacksonville Did Not Satisfy Prong II of Port Hueneme