File 2: Opinion of Chairman Cabaniss
[ v60 p707 ]
Dissenting opinion of Chairman Cabaniss:
I write separately to explain why I would grant the application for review to reconsider established precedent. However, the problems I see with our representation case process reach much farther than just the few issues the Agency has raised here.
As noted in the majority opinion, the employees at issue here are approximately 62 Customer Support Representatives (CSRs) assigned to the Customer Support Office (CSO) of the Defense Logistics Agency (DLA or the Agency). While the CSO is located at Fort Belvoir, VA, the CSRs are located at 44 other locations throughout the United States. The Stipulation of Fact entered into by the parties states that the AFGE consolidated bargaining unit of non-professional employees was certified on June 5, 2002. That bargaining unit has approximately 14,000 employees, and the certification reflects that DLA non-professional employees at a variety of locations are specifically excluded from bargaining unit membership, specifically, employees in the following DLA organizations: DLA Europe; DLA Pacific; employees in six other DLA organizations, and Customer Representative Support Unit (the former name of the CSO) employees not located at Fort Belvoir, VA, even though the CSO employees located at Fort Belvoir, VA are included in the unit.
The Agency has very little presence at the 44 locations where the CSRs are stationed, and the Agency relies on memoranda of agreements and inter-service support agreements with the CSR "host" locations to provide the CSRs with office space, office furniture, computer use, telecommunications, etc. To the extent there are any other DLA employees at one of the 44 locations (there is only a small number of CSRs who are at locations where there are other Agency employees), the CSRs do not share office space with those other DLA employees and perform significantly different work functions than those other DLA employees.
The Authority's Regulations note that the duties of a hearing officer for these proceedings include the obligation to "inquire fully into the relevant and material facts concerning the matters that are the subject of the hearing," and that the purpose of a representation hearing (which are supposed to be investigative in nature and not adversarial) is "to develop a full and complete record of relevant and material facts." The noted regulations are set forth at 5 C.F.R. §§ 2422.21(a) and 2422.18(a), respectively.
The obvious and most immediate question that arises from the record, and one not addressed by either [ v60 p708 ] the parties or the hearing officer, is what is it that now warrants application of the representation process to whether to include these 62 employees into this bargaining unit when there was a decision made two years earlier (the original certification is dated June 5, 2002, the petition in this case was filed on May 6, 2004) to expressly not include these employees in the consolidated bargaining unit? I fully understand that our precedent finds no problem with this, although reliance on our precedent in response to this point doesn't resolve the matter, it only highlights the issue. It may be that the Authority would be better served by consideration of the Congressional mandate for an effective and efficient government and, rather than engaging in an ongoing process of focusing on whether there would be an "appropriate" bargaining unit, start examining what the "most appropriate" bargaining unit should be. Certainly, as circumstances change what may have been the "most appropriate" bargaining may no longer be so, but circumstances such as in the present case raise the obvious question of what has changed since this bargaining was certified two years ago, to now warrant a reassessment of the bargaining unit status of these 62 individual employees?
A fundamental aspect of representation cases is the obligation of the parties and hearing officers to identify and raise issues relevant to the proceedings. Parties would be better served by considering it their own responsibility to identify and raise issues, no matter how much these hearings are supposed to be non-adversarial and fact-finding in nature, which implies more of an independent obligation on the part of hearing officers than is usually expected from them.
As for the arguments raised by the Agency in its application for review, the Agency raises a legitimate concern when it points to the limited, conclusory comments in the ARD's decision to argue that little to no consideration was given to the Agency's "primary arguments as to why the CSRs do not share a community of interest with each other or with the existing consolidated bargaining unit." Application for Review at 4. Again, while our precedent would seem to sanction such behavior, that again only highlights the concerns raised in this case, it does not resolve them.
The Authority's Regulations for seeking review of Regional Director decisions and orders provide a limited ability to challenge the failure to consider, or the cursory evaluation of, arguments made by a party. Section 2422.31(c)(3) of the Authority's Regulations note the ability of a party to allege that there is a genuine issue over whether a Regional Director has failed to apply established law, committed a prejudicial procedural error, or committed a clear and prejudicial error concerning a substantial factual matter. Section 2422.31(c)(1) permits challenges based upon an allegation that the decision raises an issue for which there is an absence of precedent. And, Section 2422.31(c)(2) permits challenges based upon an allegation that established law or policy warrants reconsideration.
There is no magical formula for deciding what factual or legal considerations should predominate in a particular case: such decisions are reached on a case-by-case basis. In some respects, that's the good news, as each case must stand or fall on the facts presented therein: the bad news is that same precedent basically allows the Authority to reach whatever outcome it wants to reach, even when key considerations are ignored or glossed over, so long as other "relevant" considerations identified from other cases (which doesn't necessarily equate to those considerations having the same level of relevancy in another case) are identified and articulated as being dispositive. There may be considerations in a particular case that are of such magnitude and impact that those considerations should legitimately preclude a unit from being appropriate, even though there are many other considerations that would seem to favor finding the unit to be appropriate. Our precedent, however, does not mandate that such dominant considerations be affirmatively factored into the overall determination, or even affirmatively addressed. [*]
Given that orthodoxy,