[ v62 p18 ]
62 FLRA No. 7
SOCIAL SECURITY ADMINISTRATION
KISSIMMEE DISTRICT OFFICE
OF GOVERNMENT EMPLOYEES
DENYING APPLICATION FOR REVIEW
February 6, 2007
Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member
I. Statement of the Case
This case is before the Authority on an application for review filed by the Social Security Administration (Agency) under § 2422.31 of the Authority's Regulations. Petitioner American Federation of Government Employees, AFL-CIO (Union) filed an opposition to the Agency's application.
The Regional Director (RD) found that the Agency's newly created Kissimmee District Office (Kissimmee Office) is a successor employer of employees previously represented by the Union. She further found that the Kissimmee Office may be consolidated into the Union's nation-wide bargaining unit and ordered that the certification for that unit be amended to include the Kissimmee Office.
For the following reasons, we deny the Agency's application for review.
II. Background and RD's Decision
The Agency administers Social Security programs. Its service to the public is provided primarily through a network of 10 regions. The regions are divided into areas, each of which is administratively responsible for certain of the 1,300 offices that provide direct service to the public. [ v62 p19 ]
This case concerns the North Florida Area of the Atlanta Region, which includes 15 district offices, including the Orlando and Kissimmee District Offices. The Kissimmee Office was created in 2002, in response to population growth in the area served by the Orlando Office. According to the RD, "offices are normally set up by zip code and [the Kissimmee Office] inherited jurisdiction for a zip code that had been previously part of" the Orlando District. RD's Decision at 9. The Kissimmee Office was initially located in the Orlando Office and it moved into separate space in Kissimmee in 2005. Id. at 8. According to the RD, the organizational structure of the Kissimmee Office mirrors that of other district offices and the job titles and skill requirements are similar to that of other districts.
The Union represents approximately 51,000 non-professional employees of the Agency in a consolidated bargaining unit. RD's Decision at 2. This unit includes the Orlando Office. After the Agency opened the Kissimmee Office, the Union filed a petition seeking to clarify that the new office was a successor employer. See 5 C.F.R. § 2422.1(b)(1). As such, the Union requested that this unit of employees be added to the consolidated bargaining unit without an election.
The RD determined that the Agency has an organizational structure that is the same in each of its regions. RD's Decision at 6. Personnel policies and labor relations are set at the national level. These national policies are then "channeled" to the district offices through human resources offices in each regional office. Id. at 5. At the district level, the district manager is responsible for all of the services provided in that geographical area and has discretion over staffing decisions, the allocation of the district's budget, supervision of personnel, and the policies and working conditions of the office. Id. at 6. According to the RD, the district manager in the Kissimmee Office has similar authority to that of other district managers. Id. at 6-7.
At the time of the hearing, there were 35 employees of the Kissimmee Office who were eligible to be included in a bargaining unit. Of these 35 employees, 27 were former employees of other Agency offices and 8 were new hires who had not previously worked for the Agency. Id. at 10. Of the 27 employees who worked for the Agency at other locations prior to joining the Kissimmee Office, 4 employees were promoted, 2 applied through vacancy announcements and were promoted, 7 applied through vacancy announcements and were reassigned, 1 was promoted and reassigned due to hardship, 6 were reassigned, 6 were reassigned due to hardship, and one was reassigned from the "SIN referral list." [n1] Id. at 11. All 27 of these employees were previously represented by the Union at other locations. Id. at 9, 11 (citing Agency Ex. 9; Transcript at 170-72). None of these employees was reassigned involuntarily. Id.
The RD described the working conditions of the three bargaining unit positions located in the Kissimmee Office -- claims representative, service representative, and technical expert. Id. at 12-13. According to the RD, most of the employees who relocated to the office perform basically the same kind of work that they did previously. Id. at 13. The RD found that payroll for the district is handled centrally by the Department of Interior, that employees' official personnel folders are maintained in the regional office, and that hiring authority for employees is at the district level. Id. at 14. She also found that personnel and administrative services are provided by aides in the district office.
With respect to labor relations, the RD found that the Union and Agency are parties to a nationwide collective bargaining agreement that provides for bargaining during the life of the agreement at one of four levels, depending on whether the particular issue is of local, regional, component, or national interest. Id. at 15. The RD also found that the parties had "over the years, reached an agreement that a . . . district office was the smallest organizational level that could be accorded exclusive recognition." Id.
Addressing the Union's claim that the Kissimmee Office is a successor employer, the RD applied the framework set out by the Authority in Naval Facilities Engineering Service Center, Port Hueneme, Cal., 50 FLRA 363 (1995) (Port Hueneme) to determine whether, following a reorganization, a new employing entity is the successor to a previous one, so that a secret ballot election is not necessary to determine the representation rights of employees who were transferred. As stated by the RD, an entity is considered to be a successor when:
(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 [Federal Service Labor-Management Relations Statute (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 [ v62 p20 ] 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.
RD's Decision at 28-29 (quoting Port Hueneme, 50 FLRA at 368).
The RD concluded, contrary to the claim of the Agency, that the creation of the Kissimmee Office was a "reorganization" that fell within the analytical framework of Port Hueneme. Id. at 34. In this regard, the RD found that the establishment of the Kissimmee Office was the result of restructuring the workload of the Atlanta Region by transferring the workload from a particular zip code in the Orlando Office to the newly created Kissimmee Office. Id. The RD also rejected the Agency's argument that the Kissimmee Office did not qualify as a "gaining organization" under Port Hueneme because it is a "new" operation, concluding that both the Authority and the National Labor Relations Board apply the successorship doctrine to new entities. Id. at 34-35 (citing United States Dep't of the Navy, Fleet & Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 958 n.4 (1997) (FISC); Gitano Distrib.Ctr., 308 NLRB 1172 (1992)).
Turning to the first criterion of the Port Hueneme test, the RD rejected the Agency's argument that employees were not "transferred" to the Kissimmee Office because they volunteered to be moved to that office. Relying on the Authority's decision in Defense Logistics Agency, Def. Supply Ctr. Columbus, Columbus, Ohio, 53 FLRA 1114 (1998) (DLA, Columbus), the RD noted that a "wide variety" of factual situations have been considered to be transfers for this purpose and that the staffing of the Kissimmee Office with 27 employees who previously worked at other locations in the Agency satisfied the requirement of "organizational movement of employees within an agency[.]" RD's Decision at 37 (quoting United States Dep't of the Navy, Commander, Naval Base Norfolk, Va., 56 FLRA 328, 334 (2000)).
The RD also determined that the Kissimmee Office is an appropriate bargaining unit pursuant to the standards set out in § 7112(a) of the Statute. [n2] The RD found that the employees of the Kissimmee Office share a clear and identifiable community of interest because, among other things, these employees work in one of three standard positions, there is an opportunity to be promoted from one position to another, and employees work under similar personnel and labor relations policies established at the national level, with latitude at the local level. RD's Decision at 32. The RD next concluded that the proposed bargaining unit would promote effective dealings between management and the exclusive representative. She based this conclusion on findings that the Union represents 51,000 employees in its consolidated unit and has bargained successfully with the Agency for 26 years, with district offices like the Kissimmee Office considered to be appropriate units with delegated authority for bargaining over local matters. Id. at 33. The RD also found that the proposed bargaining unit would promote the efficiency of Agency operations. Id. at 34. She concluded that district offices, including the Kissimmee Office, retain significant authority over day-to-day operations and that the Kissimmee Office is organized similarly to other district offices that are also appropriate units. Id. at 34. The RD thus concluded that each of the three statutory appropriate unit criteria was met.
Applying the remainder of the first Port Hueneme criterion, the RD determined that a majority of employees in the Kissimmee Office (27 of 35) were transferred from the Union's consolidated unit at other locations. She thus found that the first criterion was satisfied.
The RD next applied the second and third criteria of the Port Hueneme test. She found that the second criterion was satisfied because the transferred employees' work and the functions they performed remained substantially the same. She next concluded under the third criterion that an election was not necessary. In this regard, she found that the number of represented employees exceeded the number of unrepresented employees and no other labor organization represented, or sought to represent, the employees. RD's Decision at 38. The RD thus concluded that the Kissimmee Office is an appropriate successor bargaining unit.
Finally, the RD determined that the Kissimmee Office could be consolidated with the existing non-professional bargaining unit represented by the Union pursuant to § 7112(d) of the Statute. [n3] In this regard, the RD concluded that the Kissimmee Office is functionally similar to all of the other district offices that are already in the consolidated bargaining unit and that the three appropriate unit criteria are met by its inclusion in the consolidated bargaining unit. [ v62 p21 ]
Having found that the Kissimmee Office was a successor employer and that it could be consolidated into the nation-wide bargaining unit, the RD ordered that the certification be amended to include that office.
III. Positions of the Parties
The Agency argues that the RD erred in certifying the bargaining unit proposed by the Union without an election. According to the Agency, Authority case law indicates that "the Authority has a proclivity to hold elections" and this "established law warrants reconsideration" of the RD's decision under § 2422.31(c)(2) of the Authority's regulations. [n4] Application at 1 (citing Defense Logistics Agency, Ft. Belvoir, Va., 60 FLRA 701 (2005) (DLA, Ft. Belvoir)). In this regard, the Agency argues that the RD erred in finding that the Kissimmee Office met the criteria of a successor employer, as set out in Port Hueneme.
As a threshold matter, the Agency argues that the "triggering event" for the application of the Port Hueneme test is that an agency has conducted a reorganization. According to the Agency, this case involves the creation of a new office, rather than a reorganization. Application at 3. The Agency explains that the Kissimmee Office was created because there was a large population increase in central Florida, inundating the existing offices and requiring the creation of a new office. According to the Agency, opening a new office is not a reorganization for purposes of applying the successorship doctrine.
The Agency further argues that the successorship doctrine only applies where employees are "transferred" to a new entity. Id. at 4. According to the Agency, the employees here voluntarily decided as individuals to relocate to the new office and no employees were involuntarily transferred. The Agency asserts that employees who voluntarily apply to be placed in a new organization are not considered to be "transferred" employees, as the Authority defined that term in DLA, Columbus, 53 FLRA at 1125 n.6.
Finally, the Agency claims that an election is necessary to include the Kissimmee Office in the bargaining unit at issue because the certification of the bargaining unit in the Atlanta Region does not reference inclusion of new offices and because the Kissimmee Office includes unrepresented employees. The Agency contrasts the portion of the Atlanta certificate at issue here with the portion of the certificate that applies to its San Francisco Region, which includes all employees in the region. According to the Agency, the broader language of the portion of the certificate describing the San Francisco Region meant that its new Henderson District Office in that region automatically became part of the consolidated unit when it was created. The Agency asserts that because the portion of the consolidated certificate describing the Atlanta Region does not include the Kissimmee Office, and because the Kissimmee Office includes unrepresented employees, an election is required. Id. at 6-7 (citing DLA, Ft. Belvoir, 60 FLRA 701).
The Union argues that the RD correctly found that Kissimmee Office is a successor employer and that no election is necessary.
With respect to the first Port Hueneme criterion, the Union claims that this office is a separate appropriate bargaining unit that meets the three criteria of § 7112(a) of the Statute. The Union also contests the Agency's claim that the creation of this office was not a reorganization that falls within the Port Hueneme framework, asserting that the new office is a "gaining entity" under the standards set out in Authority case law. Opposition at 10 (quoting FISC, 52 FLRA at 957). With respect to the Agency allegation that a majority of the employees at the Kissimmee Office were not "transferred" for purposes of applying this test, the Union argues that the Authority has defined this concept broadly, in a manner that includes employees who moved from other offices represented by the Union when such employees are a majority of the office.
With respect to the second and third Port Hueneme criteria, the Union argues that the RD correctly found that the Kissimmee Office has the same mission as the offices that performed its work previously, and that an election is not required. The Union asserts that an election is not required because transferred employees represented by the Union in the consolidated bargaining unit make up a majority of the employees in the unit and there are no special circumstances that require the holding of an election. [ v62 p22 ]
IV. Analysis and Conclusions
An assertion that "established law or policy warrants reconsideration" is an established ground for challenging an RD's Decision and Order. 5 C.F.R. § 2422.31(c)(2); see United States Dep't of Agriculture, Office of the Chief Information Officer, Information Technology Services, 61 FLRA 879, 883 (2006). Here, although the Agency asserts that reconsideration is warranted under this section, it does not seek reconsideration of any established law or policy, but rather, asserts that "established law warrants reconsideration of the . . . [RD's] Decision and Order." Application at 1. In such a situation, where a party relies on existing precedent to challenge an RD's decision, the Authority has construed the application as asserting that the RD "[f]ailed to apply established law[.]" 5 C.F.R. § 2422.31(c)(3)(i); see United States Dep't of Veterans Affairs, 60 FLRA 887, 888 (2005). Therefore, we construe the Agency's application as arguing that the RD failed to apply established law.
As set forth above, the RD considered the Union's claim that the Kissimmee Office was a successor employer under the three-part test set out by the Authority in Port Hueneme, 50 FLRA at 368. As also explained above, the Agency makes three arguments that the RD misapplied Port Hueneme.
First, the Agency argues that the Port Hueneme successorship test does not apply in this case because the "triggering event" for the test is an agency reorganization, and here it created a new office rather than engaging in a reorganization. Application at 3. However, the Agency provides no support for its claim that successorship may only be found where the employees at issue are transferred to an existing organization. To the contrary, the successorship test has been specifically described as applying to "pre-existing or newly established organization[s]." FISC, 52 FLRA at 958 n.4; see Soc. Sec. Admin., Dist. Office, Valdosta, Ga., 52 FLRA 1084, 1088 (1997) (Valdosta) (rejecting agency argument that successorship applied only to new and not to existing organizational units). This is fully consistent with the Authority's statement in Port Hueneme, that the "successorship criteria must be applicable in a myriad of unanticipated situations . . . [and] apply . . . to the types of organizational changes being undertaken in Government at the present time." Port Hueneme, 50 FLRA at 367.
Moreover, the Agency does not dispute the RD's finding that, in creating the Kissimmee Office, the Agency "restructured the workload of the Atlanta [Region] by . . . transferring the workload from a particular zip code within the Orlando District Office to the newly created" Kissimmee Office. RD's Decision at 34. Rather, the Agency acknowledges that the Kissimmee Office was created to address population increases in Central Florida that "inundated" the existing offices and prompted the Agency "to open a new office to provide better service[.]" Application at 4. This restructuring of the Agency's work is similar to other situations where the successorship test has been used. See Valdosta, 52 FLRA at 1085 (same Agency transferred branch office and some work from one district to another district); Port Hueneme, 50 FLRA at 365 (agency created new office that included disestablished office and other functions). Thus, the Agency has not established that the RD failed to apply established law in finding that the organizational change at issue in this case is a reorganization for purposes of applying the Port Hueneme successorship test.
Second, the Agency argues that the Port Hueneme test is not satisfied because the employees who staffed the new Kissimmee Office voluntarily decided to apply to work in that office and thus were not "transferred" to the office, as required by the first Port Hueneme criterion. Application at 3-6. In DLA, Columbus, the Authority explained that "the term `transferred employees' set forth in [Port Hueneme] is a generic term that refers to any organizational movement of employees within an agency or between agencies, regardless of the method of the reorganization." 53 FLRA at 1126-27. The Authority based this broad use of the term on private sector case law, which requires only a determination that "a majority of the employees hired by the gaining employer were employees of the predecessor." Id. at 1126 (citing NLRB v. Burns, 406 U.S. 272, 281 (1972)). Nothing in DLA, Columbus suggests that the voluntariness of the employees' movement to the new employer affects its status as a transfer, for purposes of the successorship doctrine.
In addition to its general assertion that the voluntary movement of employees is not a transfer, the Agency relies on a footnote in DLA, Columbus that refers to an Office of Personnel Management regulation defining the term "transfer." Application at 5 (citing 53 FLRA at 1125 n.6). [n5] However, the Authority did not cite this regulation in DLA, Columbus to establish the meaning of the term "transfer" for purposes of the successorship doctrine. On the contrary, the Authority [ v62 p23 ] cited this regulation to illustrate its point that "the nature of the personnel action effected" does not determine whether employees are considered transferred for purposes of successorship. Id. at 1125. In this regard, none of the employees at issue in DLA, Columbus; Port Hueneme; or FISC was transferred from one agency to another. The Agency has therefore not established that the RD failed to apply established law in finding that employees who moved into positions in the Kissimmee Office from other offices of the Agency should be considered to have transferred for purposes of applying the successorship doctrine.
Third, the Agency argues that the last Port Hueneme criterion is not met and an election is necessary to determine the representation rights of the transferred employees because the certification describing the bargaining unit in its Atlanta Region does not automatically include new offices and because the office includes newly hired employees who were not previously represented by the Union. The Authority has found an election to be necessary where the number of unrepresented employees in the unit exceeds the number of represented employees, Valdosta, 52 FLRA at 1091; where the employees at issue could be a part of two petitioned-for appropriate units, DLA, Columbus, 53 FLRA at 1133; and where more than one labor organization represents employees in the new unit and neither group of affected employees is "sufficiently predominant" to remove the question concerning representation, id at 1134. Here, the RD found that 27 of the 35 employees at the Kissimmee Office who were eligible to be in the petitioned-for appropriate bargaining unit had transferred by various methods from the Union's consolidated bargaining unit at other Agency locations. RD's Decision at 38. As the number of represented employees exceeded the unrepresented employees and no other labor organization represented, or sought to represent the employees, she found that no election was warranted.
The Agency is correct in asserting that employees are automatically included in an existing bargaining unit where their positions fall within the express terms of a bargaining certificate. See Dep't of the Army, Headquarters, Fort Dix, Fort Dix, N.J., 53 FLRA 287, 294 (1997). That principle does not apply in the case of claimed successorship, however. In this regard, the successorship doctrine evaluates whether previously represented employees who are transferred to a new or existing entity retain their representative even though the existing certificate does not reference that entity. Where the Authority determines that the Port Hueneme successorship test is met, it orders that the certificate be amended to acknowledge the representation of the employees. Port Hueneme, 50 FLRA at 376 (directing the RD to issue appropriate certifications); see Valdosta, 52 FLRA at 1092 (same). The fact that the Agency's consolidated bargaining unit is defined differently in two of its regions does not establish that the RD failed to apply established law when she applied the successorship test to the Kissimmee Office or that these employees could not be represented by the Union without an election.
Finally, the Agency asserts that an election is required because there are previously unrepresented employees in the Kissimmee Office and the Authority "demonstrated its proclivity for elections" in DLA, Ft. Belvoir, 60 FLRA 701. Application at 7. However, DLA, Ft. Belvoir concerned a union petition requesting an election among unrepresented employees who had previously been specifically excluded from a bargaining unit. As explained above, evaluating whether an election is necessary under the third Port Hueneme criterion requires the examination of the ratio of previously represented to unrepresented employees. In Ft. Belvoir, all of the petitioned-for employees were unrepresented, and the petitioning union sought an election. Id. at 701. As such, the fact that the Authority ordered an election in that case provides no support for an election here. Thus, the Agency has not demonstrated that that the RD erred in refusing to order an election.
In sum, we construe the application as asserting that the RD failed to apply established law and conclude that the Agency has not established that review is warranted on that ground.
The application for review is denied.
Footnote # 1 for 62 FLRA No. 7 - Authority's Decision
Footnote # 2 for 62 FLRA No. 7 - Authority's Decision
Section 7112(a) provides, in pertinent part, that "[t]he 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 # 3 for 62 FLRA No. 7 - Authority's Decision
Section 7112(d) provides, in pertinent part, that "[t]wo 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."
Footnote # 4 for 62 FLRA No. 7 - Authority's Decision
Section 2422.31(c) of the Authority's Regulations provides, in pertinent part, that "[t]he Authority may grant an application for review . . . when . . . (2) Established law or policy warrants reconsideration . . . ."
Footnote # 5 for 62 FLRA No. 7 - Authority's Decision
See 5 C.F.R. § 210.102(b) (18), which provides that "transfer" is "a change of an employee, without a break in service of 1 full workday, from a position in one agency to a position in another agency."