Department of the Navy, Naval Computer and Telecommunications Area, Master Station-Atlantic, Base Level Communications Department, Regional Operations Division, Norfolk, Virginia, Base Communications Office-Mechanicsburg (Agency) and American Federation of Government Employees, Local 1156, AFL-CIO (Union/Petitioner)
[ v57 p230 ]
57 FLRA No. 49
DEPARTMENT OF THE NAVY
NAVAL COMPUTER AND TELECOMMUNICATIONS AREA, MASTER STATION-ATLANTIC
BASE LEVEL COMMUNICATIONS DEPARTMENT
REGIONAL OPERATIONS DIVISION
BASE COMMUNICATIONS OFFICE-MECHANICSBURG
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1156, AFL-CIO
(56 FLRA 228 (2000))
DECISION AND ORDER ON REMAND
June 1, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1]
I. Statement of the Case
This case is before the Authority on an Application for Review of the Acting Regional Director's Decision and Order on Remand filed by the Petitioner, American Federation of Government Employees, Local 1156, AFL-CIO (Union). The Agency, Naval Computer and Telecommunications Area Master Station-Atlantic (NCTAMS-LANT), Base Level Communications Department, Regional Operations Division, Norfolk, Virginia, Base Communications Office-Mechanicsburg (BCO-Mechanicsburg), filed an opposition to the application for review.
The petition sought to clarify that the Union remains the exclusive representative of a separate unit of four employees who were transferred to another organization. The Regional Director initially found that the four employees were an appropriate unit, and that the Agency was the successor employer. On review, the Authority remanded the case to the Regional Director with instructions to, among other things, consider all three factors set forth in section 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute) to determine whether the transferred employees constitute an appropriate unit. Dep't of the Navy, Naval Computer and Telecommunications Area, Master Station-Atlantic, Base Level Communications Department, Regional Operations Div., Norfolk, Va., Base Comm. Office-Mechanicsburg, 56 FLRA 228 (2000) (BCO-Mechanicsburg).
In his Decision on Remand, the Acting Regional Director concluded that the petitioned for employees do not constitute an appropriate unit. Accordingly, he determined that the Agency cannot be a successor employer, and dismissed the petition.
The Union is certified as the exclusive representative of a unit of all nonsupervisory nonprofessional employees of the Naval Inventory Control Point-Mechanicsburg (NAVICP-Mechanicsburg). The four employees at issue here were organizationally transferred from various subdivisions of NAVICP-Mechanicsburg to the BCO-Mechanicsburg-Mechanicsburg. BCO-Mechanicsburg provides telecommunications services to customers, including NAVICP-Mechanicsburg and other tenant activities at NAVICP-Mechanicsburg. The transfer did not change the duty station of the transferred employees. BCO-Mechanicsburg is now a tenant organization of, and remains physically in an office at, NAVICP-Mechanicsburg.
While day-to-day work issues or concerns are handled by the first level supervisor at BCO-Mechanicsburg, the supervisor has no authority to determine, implement, or change any policy or working condition for the employees or to negotiate on behalf of the Agency. The supervisor does not determine overtime for employees or make decisions concerning discipline, except that the supervisor may propose, but not decide, disciplinary actions less severe than a 14 day suspension.
BCO-Mechanicsburg is one of six BCOs within the NCTAMS-LANT that is supervised by the Regional Operations Division, Norfolk (ROD). There are 18 BCOs in NCTAMS-LANT overall. The ROD provides guidance and policy to BCOs throughout the NCTAMS-LANT area of responsibility, which includes thirty-two states and three overseas locations. There are approximately 200 nonsupervisory, non-managerial employees in ROD, located in Norfolk, Virginia. Above ROD on the organizational chart is the Base Level Communications Department (BLCD), also located in Norfolk. The [ v57 p231 ] BLCD provides day-to-day operational support, management, long range planning, policy/guidance, acquisition and technical support services for the operation, administration and maintenance of BCOs.
The Human Resources Office in Norfolk (HRO-Norfolk) provides personnel and labor relations services for the employees of NCTAMS-LANT, with one exception discussed below. The employees of NCTAMS-LANT are also serviced by the Human Resources Service Center-East, located in Portsmouth, Virginia.
Except for one unit, no labor organization represents employees of NCTAMS-LANT. The exception is the BCO at the naval facility at Great Lakes, Illinois (BCO-Great Lakes). Prior to their transfer to the BCO, the five bargaining unit employees there had been part of a unit represented by American Federation of Government Employees, Local 2326, AFL-CIO and were covered by a multi-unit agreement. [n2] However, this unit has not been the subject of a representation case before the Authority.
III. Regional Director's Initial Decision and Authority's Remand
In determining that the Agency is a successor employer, the Regional Director's initial decision relied on the framework set out in Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363 (1995) (Port Hueneme). He first found that the four BCO-Mechanicsburg employees constituted an appropriate unit under the criteria of section 7112(a) of the Statute. [n3] In particular, the Regional Director found a community of interest among the employees of BCO-Mechanicsburg based primarily on the fact that the four employees perform their work at NAVICP-Mechanicsburg, and that there was little interchange between the employees and other NCTAMS-LANT employees. He did not, however, address the other two appropriate unit factors independently.
In granting review and remanding the case, the Authority found that by not separately evaluating and making explicit findings with respect to each of the three criteria, the Regional Director failed to conform to the Statute and established law. BCO-Mechanicsburg, 56 FLRA at 230, citing United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950 (1997) (FISC).The Authority directed the Regional Director to evaluate the three criteria, considering the similarities and differences between the factual situation present in FISC and in this case. Id. The Authority stated that 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. Id. [n4]
IV. Acting Regional Director's Decision and Order On Remand
Pursuant to the remand, the Acting Regional Director stated that the initial question was whether the employees at issue constitute a majority of a separate appropriate unit and concluded that they did not. He examined each of the three criteria of section 7112(a)(1) of the Statute. He concluded that the facts fail to show that the employees share an identifiable community of interest separate and distinct from the other NCTAMS-LANT employees. He also found that the record does not establish that the proposed unit would promote effective dealings with NCTAMS-LANT or promote efficiency of agency operations. Because he found that the BCO-Mechanicsburg unit was not appropriate, the Regional Director did not consider the additional successorship factors under Port Hueneme. He therefore dismissed the Union's petition. The bases of the Regional Director's findings follow.
A. Community of Interest
The Acting Regional Director found that the transferred employees do not share a community of interest separate and distinct from other employees in NCTAMS-LANT. In this connection, the Regional Director found that although these employees remained physically at Mechanicsburg, and have little actual [ v57 p232 ] physical contact with other BCO and headquarters employees, the record does not indicate significant differences with regard to the BCO-Mechanicsburg employees and other NCTAMS-LANT employees. The Acting Regional Director relied on several additional factors in reaching this conclusion, including that the transferred employees became part of NCTAMS-LANT, were subject to its organizational structure and control, and were required to utilize the manual and work policies prescribed by NCTAMS-LANT.
The Acting Regional Director also noted that the supervisory structure changed as a result of the transfer. While first level supervision remains the same, all supervision above that level is now located at NCTAMS-LANT headquarters in Norfolk, Virginia. In addition, the BCO-Mechanicsburg second-level supervisor and third-level supervisor both supervise other BCO-Mechanicsburg employees. Job titles and pay grades were changed to reflect the job titles and grades of other similarly situated employees of NCTAMS-LANT, and the transferred employees perform similar or related duties to those of other BCO employees located outside Mechanicsburg. With the exception of BCO-Mechanicsburg-Great Lakes, the Commander of NCTAMS-LANT sets policies and working conditions for the civilian work force, and retains independent bargaining authority for NCTAMS-LANT. Review and determinations of significant adverse/disciplinary actions, as well as decisions on granting overtime, are made above the BCO-Mechanicsburg level.
The Acting Regional Director noted that BCO-Mechanicsburg employees, like the majority of NCTAMS-LANT employees, are covered by NCTAMS-LANT published instructions and policies governing topics such as awards, leave, reporting work time and performance plans. The Acting Regional Director also noted that in its brief, NCTAMS-LANT stated that since August 27, 2000, the transferred employees share the same human resources support as the majority of the Agency's employees. Finally, all NCTAMS-LANT employees, as well as BCO-Mechanicsburg, support the same overall mission.
Based on the foregoing, the Acting Regional Director found that the facts fail to show that the BCO-Mechanicsburg employees share an identifiable community of interest separate and distinct from the other NCTAMS-LANT employees.
B. Effective Dealings
The Acting Regional Director found that the proposed unit would not promote effective dealings. He found that the first line supervisor, who handles day-to-day work issues and is present at the office, has no authority to negotiate or change working conditions or policies for the BCO-Mechanicsburg employees. Further, the Acting Regional Director stated that the commanding officer of NCTAMS-LANT is responsible for establishing the policies, procedures and working conditions for all employees, and that all personnel matters are administered centrally from NCTAMS-LANT's headquarters. In addition, the Acting Regional Director found that a separate unit of 4 employees out of 250 would create additional responsibilities to maintain uniform policies and procedures.
The Acting Regional Director also stated that the fact that BCO-Great Lakes employees had been represented by "a sister local" did not establish that a unit at BCO-Mechanicsburg would promote effective dealings. Acting Regional Director's Decision on Remand at 16 n.10. He noted, first, that the situation at that facility was unique because of the servicing agreement with the HRO at Great Lakes, which considered these BCO employees to still be part of the existing naval unit at that facility. Second, he noted that the Authority had never certified a separate appropriate unit there.
C. Efficiency of Operations
The Acting Regional Director concluded that the evidence did not support a finding that the unit sought would promote efficiency of the Agency's operations. He noted that the BCO-Mechanicsburg is only one of 18 such BCOs under NCTAMS-LANT. Moreover there are only 4 nonsupervisory employees there out of approximately 240 in NCTAMS-LANT overall. The Acting Regional Director found that separating out the four would artificially fragment NCTAMS-LANT's organizational structure, "since the BCOs have no authority to bargain or to change, set or modify employee working conditions." Id. The Acting Regional Director additionally stated as a reason for finding that the proposed unit would not promote efficiency of operations the fact that labor relations are centralized and substantial costs in money and personnel time would result from the negotiation and administration of a collective bargaining agreement for this unit. [ v57 p233 ]
V. Application For Review of Decision on Remand
In its application for review, the Union asserts that the Acting Regional Director: (1) committed "clear and prejudicial error" in ruling that the four employees in BCO-Mechanicsburg do not have unique local concerns; (2) departed from precedent and committed prejudicial error in concluding that the proposed unit would not promote effective dealings and the efficiency of agency operations; and (3) violated Authority precedent and employee rights under the Statute by fashioning the most appropriate unit.
A. Alleged Prejudicial Error
The Union claims that the Acting Regional Director did not rely on the totality of the circumstances in concluding that the transferred employees do not share a community of interest separate and distinct from the NCTAMS-LANT employees. In support of its position, the Union points out that the BCO-Mechanicsburg employees work in a self-contained environment, and on a day-to-day basis do not require assistance from the other portions of NCTAMS-LANT. The Union acknowledges that NCTAMS-LANT headquarters "monitors the operation at BCO-Mechanicsburg-Mechanicsburg through e-mail on leave" and that other components provide "occasional technical assistance." Application for Review at 9 n.6. On the other hand, according to the Union, they are geographically separated from both NCTAMS-LANT and the Regional Operations Division, their supervisor approves sick leave and annual leave, and their supervisor issues their performance appraisal.
As additional indications of a separate community of interest, the Union notes that the employees sought have "little to no" interaction with the Regional Operations Division, id. at 9, and they have extensive interaction with other employees stationed at Mechanicsburg. The Union also argues in support of its position that the BCO-Mechanicsburg employees receive support from NAVICP-Mechanicsburg in such areas as security, installation of the phone system and snow removal.
Finally, the Union claims that the finding that there is no separate community of interest for the employees of BCO-Mechanicsburg in effect results in an accretion to an unrepresented group. The Union claims that this group of transferred employees would not qualify as a true accretion situation, because they are not so organizationally, functionally and physically merged that they cannot be distinguished from the other employees in the organization.
B. Alleged Departure from Precedent
The Union contends that the Acting Regional Director departed from precedent and committed prejudicial error when considering effective dealings and efficiency of agency operations. The Union cites FISC for the Authority's standard to determine effective dealings and efficiency of operations. Contrary to these standards, the Union argues, the Acting Regional Director based his decision primarily on the size of the unit. The Union argues that he should have considered that BCO-Mechanicsburg is a distinct organizational component, with a first-line supervisor in charge of administering the work, approving leave, appraising employees "and even supplying some training." Application for Review at 14.
The Union argues, in regard to the contention that uniform working conditions would be more difficult to maintain if the group sought were a separate unit within the Agency, that since Agency wide regulations would be subject only to impact and implementation bargaining at BCO-Mechanicsburg, a unit there "would have NO impact on a policy or regulations conformity, only how its [sic] implemented at the local level." Id. at 16, emphasis in original.
Regarding efficiency of agency operations, as well as effective dealings, the Union contends that the Acting Regional Director neglected the experience with "a similar unit at [BCO-]Great Lakes." Id. at 17. The Union stated, however, that "the [Acting] Regional Director correctly noted that BCO-Great Lakes was not certified by the Authority," but that "the parties were treating [it] as a certified unit." Id. at 16 n.10.
The Union asserts that the size of the unit is the sole reason for the Acting Regional Director's determination that it is not appropriate, and argues that size "should only be relevant in the context of creating fragmentation[,] and fragmentation alone should not deprive employees of their Statutory rights." Id. at 19 n.11. The Union contends that the cost of negotiating a collective bargaining agreement, a factor in the Acting Regional Director's consideration of effective dealings and efficiency of operations, is irrelevant, because "[e]very contract must be negotiated and administered." Id. at 18. Therefore, "[t]he only factor that makes the instant case different is the small size of the proposed unit." Id. at 18-19. [ v57 p234 ]
C. Alleged Violation of Precedent
The Union next argues that, contrary to the Statute, the Acting Regional Director's Decision on Remand requires that a unit must be the most appropriate, not just an appropriate, unit. The Union claims that this represents a change of policy and that, "due to [his] concern over fragmentation," the Acting Regional Director "will no longer certify smaller units." Id. at 20. The Union argues that unit fragmentation is only one factor, and the employees' loss of representation rights is also important. Further, organizing all BCOs, as the Acting Regional Director's decision suggests must be done, would make organizing these employees very difficult.
In answer to the Union's contention that the Acting Regional Director incorrectly determined that the BCO-Mechanicsburg did not have any unique local concerns, the Agency notes the Acting Regional Director's many references in his Decision on Remand to the BCO-Mechanicsburg local concerns. However, the Agency states, the examples raised by the Union are not, under FISC, the kind of unique local concerns that determine a separate community of interest. For example, snow removal, building access, security, and telephone services are services enjoyed by any tenant activity.
According to the Agency, the Acting Regional Director also addressed the issue of supervisory control, and acknowledged that first-level supervision was at the BCO-Mechanicsburg level. However, according to the Agency, the Acting Regional Director "felt that it was more important to consider that `the first level supervisor at BCO-Mechanicsburg has no authority to negotiate or change any working conditions or policy or practice affecting the employees at that site,' and `review and determinations of significant adverse/disciplinary actions are made above the BCO-Mechanicsburg level as are decisions concerning granting overtime to employees.'" Opposition at 7, quoting Acting Regional Director's Decision on Remand at 8. On the other hand, notes the Agency, the Acting Regional Director determined community of interest taking into account many of the factors mentioned in FISC.
The Agency asserts that the Union's second argument, that the Acting Regional Director erred in evaluating effective dealings and efficiency of operations, constitutes mere disagreement with the Acting Regional Director's findings. The Agency notes the Acting Regional Director's discussion of the criteria of FISC in connection with local supervision and the authority at a higher level to establish policies, procedures and working conditions; centralized labor relations, and the fragmenting effect on the organizational structure of a separate unit. The Agency also notes the single exceptional situation involving BCO-Great Lakes, and the problems that the NCTAMS-LANT has indicated it has in controlling their conditions of employment.
The Agency also contests the Union's third argument, that the Acting Regional Director's decision has denied the petition because the Acting Regional Director found appropriate only the most appropriate unit. The Agency notes that the Acting Regional Director explicitly stated that the Statute requires only a finding of whether employees sought constitute an appropriate unit, and stated that the decision should not be construed as a denial of the right of the employees at BCO-Mechanicsburg to enjoy the benefits of representation, since nothing prevents a labor organization from seeking to represent those employees in a broader unit that would be appropriate.
The Agency states that the decision on appropriate unit must be based on analysis of the criteria of § 7112. The fact that this determination results in the transferred employees becoming unrepresented "does not mean that the transferred employees should be given some special consideration which the facts and evidence do not support." Id. at 13-14.
VII. Analysis and Conclusions
The Authority has adopted a three-part test to determine when employees transferred in an agency reorganization are considered to work for a successor employer, such that the union that previously represented them retains its status as their exclusive representative. Successorship is found where:
(1) An entire recognized unit, or a portion thereof, is transferred and the transferred employees: (a) are in an appropriate bargaining unit, under section 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 [ v57 p235 ]
(3) It has not been demonstrated that an election is necessary to determine representation.
Port Hueneme, 50 FLRA at 368.
In determining whether a unit is appropriate,, the Authority considers the three criteria set out in § 7112(a) of the Statute. See supra, n.3; see also FISC, 52 FLRA at 959. A proposed unit must meet all three appropriate unit criteria in order to be found appropriate. Id. at 961 n.6.
The Union asserts that the Acting RD departed from existing precedent and committed a clear and prejudicial error when he determined that the four BCO-Mechanicsburg employees did not meet any of the three criteria and, thus, did not constitute a separate appropriate unit. Because a unit must satisfy all three criteria in order to be found to be appropriate, the Union's application must be denied if it fails to establish that the Regional Director erred with respect to any one of the three criteria.
We find that the Union has not established that the Acting Regional Director erred in concluding that the petitioned-for unit would not promote effective dealings between the Agency and the Union. The "effective dealings" criterion pertains to the relationship between management and the exclusive representative selected by the proposed unit. FISC, 52 FLRA at 961. In examining whether a proposed unit would promote effective dealings with an agency, the Authority examines such factors as: the past collective bargaining experience of the parties; the locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit; the limitations, if any, on the negotiation of matters of critical concern to employees in the proposed unit; and the level at which labor relations policy is set in the agency. See id. The Authority also considers the extent that a change in chain of command following a reorganization changes which individual or organizational entity has the authority to set labor relations policy and/or negotiate with the exclusive representative of the unit. United States Dep't of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328, 333 (2000).
Here, the Acting Regional Director found -- and the Union does not dispute -- that there is only one first-level supervisor at BCO-Mechanicsburg, and that supervisor has no authority to negotiate or change working conditions or policies for the employees at that location. Acting Regional Director's Decision on Remand at 15-16. The Acting Regional Director further found that the authority for establishing policies, procedures, and working conditions for the employees of the proposed unit rests solely with the Commanding Officer of NCTAMS-LANT, who centrally administers 250 non-supervisory, nonprofessional employees at its headquarters and 17 other locations. Id.
Contrary to the Union's claim, the Acting Regional Director did not base his decision solely on the size of the proposed unit. Rather, he based his conclusion on his findings concerning the local supervisor's lack of authority over policy and working conditions, his inability to negotiate, and the inefficiency of negotiation at the central office level for this group of employees. The Acting Regional Director's conclusion that all of these factors, together, indicate that the proposed unit would not promote effective dealings with the Agency, is consistent with Authority case law. [n5] Compare FISC, 52 FLRA at 966 (separate units would not promote effective dealings where local director did not have authority over policies, procedures, or working conditions), with United States Dep't of the Air Force, 82nd Trng. Wing, 361st Trng. Squadron, Aberdeen Proving Ground, Md., 57 FLRA No. 39 (2001) (Aberdeen Proving Ground) (four person unit found to promote effective dealings where local commander retained discretion in establishing the day-to-day working conditions of the employees at issue and had the authority to negotiate a collective bargaining agreement); and United States Dep't of Justice, Exec. Office for Imm. Review, Office of the Chief Imm. Judge, Chi., Ill, 48 FLRA 620, 636-37 (1993) (isolated unit of employees found to promote effective dealings where the office administrator retained authority to administer operations, no functional [ v57 p236 ] integration with other components, and no adverse effect on centralized mission).
The Union's additional arguments do not establish that the Acting Regional Director erred. With respect to the Union's claim that supervisors at the local level cannot be expected to have the authority to negotiate over agency-wide regulations, the subjects of collective bargaining extend beyond regulations to all conditions of employment. The Acting Regional Director found that all of the employees' policies, procedures, and working conditions were set by the commanding officer at NCTAMS-LANT headquarters. The Union's claim concerning agency regulations does not affect the Acting Regional Director's finding that there was an inability of a separate BCO-Mech