69 FLRA No. 94

 

UNITED STATES

DEPARTMENT OF THE NAVY

COMMANDER NAVY

INSTALLATIONS COMMAND

(Agency/Petitioner)

 

and

 

INTERNATIONAL ORGANIZATION

OF MASTERS, MATES, AND PILOTS,

AFL-CIO

(Labor Organization)

 

WA-RP-15-0042

 

_____

 

ORDER GRANTING

APPLICATION FOR REVIEW

 

September 30, 2016

 

_____

 

Before the Authority:  Carol Waller Pope, Chairman, and

Ernest DuBester and Patrick Pizzella, Members

(Member Pizzella dissenting)

 

1. Statement of the Case

 

The Agency petitioned Federal Labor Relations Authority Acting Regional Director Jessica S. Bartlett (ARD) to amend the certification of the bargaining unit represented by the Labor Organization (Union) to reflect a change in the level of recognition within the Agency from the Chief of Naval Operations (CNO) to the Commander Navy Installations Command (CNIC).  In the attached decision, the ARD granted the Agency’s requested amendment, finding that it reflected a nominal or technical change that accurately reflected the current name of the agency that is employing the bargaining‑unit employees and did not otherwise alter the nature and scope of the bargaining unit.

 

The question before us is whether the ARD failed to apply established law by amending the certification.  Because established law holds that a change in level of recognition is not a nominal or technical change, the answer is yes.  Therefore, we grant the Union’s application for review, reverse the ARD’s decision, and dismiss the Agency’s petition to amend the unit certification.

 

2. Background and ARD’s Decision

 

The Agency filed a petition seeking to amend the Union’s certification to reflect a change in the level of recognition within the Agency.  Prior to the petition, the Union’s certification noted the level of recognition within the Agency as the CNO.  Since the Union’s certification, the Agency created a new command level, now known as the CNIC, that lies immediately below the CNO.  In the command structure of the Agency, the CNIC is the immediate superior of the subordinate, administrative commands, referred to as regions.  The bargaining‑unit employees all work within these regions.  CNIC personnel have the authority to hire, fire, and discipline bargaining‑unit members as well as to arbitrate grievances.  The CNIC has its own labor‑relations program that handles labor relations for CNIC employees, including all bargaining‑unit employees whom the Union represents.  Additionally, the CNIC negotiated, on behalf of the CNO, with the Union on the most recent collective‑bargaining agreement between the parties.  The parties stipulated that there has been no significant change in the Union’s bargaining unit itself.

 

The ARD considered the evidence and determined that the CNIC serves as the agency employing bargaining‑unit members.  She also found that granting the Agency’s petition would “simply reflect[] the current organizational structure under which [bargaining‑unit employees] work and [would] not otherwise alter the nature and scope of the bargaining unit.”^[1]  In making this finding, the ARD considered the Authority’s decision in Naval Aviation Depot, Naval Air Station, Alameda, California (Naval Aviation Depot),^[2] which states that amending a certification is appropriate where the amendment “reflect[s] nominal or technical changes to accurately reflect the current name of the agency that employs bargaining[‑]unit employees and does not otherwise alter the nature and scope of the bargaining unit.”^[3]

 

Consequently, the ARD granted the Agency’s petition, and she amended the Union’s certification to designate the CNIC as the level of Agency recognition.  The Union then filed this application for review, and the Agency filed an opposition to the Union’s application.

 

 

 

 

3. Analysis and Conclusion:  The ARD failed to apply established law.

 

                The Union argues that the ARD “incorrectly concluded that changing the level of recognition . . . is merely a ‘nominal or technical change.’”^[4]  In this connection, the Union states that “[a] change in [the] level of recognition based on an alleged reorganization of the [Agency] . . . is a significant change in which the Activity having the ultimate management prerogative is not only a different entity, but . . . [also] sits at a totally different level in the commend structure of the Department of the Navy.”^[5]  The Union “recognizes that CNO has the right to designate any subordinate agency to handle any particular issue,” but claims that “the Union has always retained the right to escalate any dispute to CNO directly when CNO’s designee fails to comply with its legal obligations . . . or when the Union is dissatisfied with how the matter was handled by CNO’s designee.”^[6]  Further, the Union claims that Naval Aviation Depot – cited by the ARD^[7] – is distinguishable from this case because, in that case, the activity “simply changed its name.”^[8]  Moreover, the Union contends, the ARD “failed to apply the well[‑]settled standard for analyzing these types of cases[:]  namely, whether an existing unit remains appropriate after a change in organization.”^[9]

 

                In its opposition, the Agency argues^[10] that the Authority should deny the Union’s application because it fails to raise any of the grounds for review listed in § 2422.31 of the Authority’s Regulations.^[11]  However, the Authority will construe arguments raised in an application for review of a regional director’s decision,^[12] and we construe the Union’s application as alleging that the ARD failed to apply established law.  The Authority may grant an application for review if the application demonstrates that a regional director failed to apply established law.^[13]

 

 

                Here, we find that the ARD’s decision is inconsistent with established law.  Under amended Executive Order 11,491 (the executive order), the Assistant Secretary of Labor for Labor‑Management Relations (Assistant Secretary) addressed a petition similar to the one at issue here.^[14]  Specifically, in Department of the Army, Fort McCoy, Sparta, Wisconsin (Fort McCoy), an activity sought to amend a     bargaining-unit certification to change the name of the activity, where certain authority had been delegated below the activity level.^[15]  The exclusive representative objected to the petition on grounds similar to the Union’s objections here.^[16]  The Assistant Secretary denied the petition, stating:

 

[A] petition for amendment of certification is appropriate when parties seek to conform the recognition involved to the existing circumstances resulting from such nominal or technical changes as a change in the name of the exclusive representative or a change in the name or location of the agency or activity.  In the instant case, the evidence establishes that the re[‑]delegation of authority herein did not result in a change in the name of the [a]ctivity or its location, but merely indicated that the four            [U.S. Army Reserve] Command Commanders are now authorized to administer the Civilian Management Personnel Program.^[17]

 

                Then, in an early Authority decision             (also applying the executive order), the Authority stated that a petition to amend a certification “is an appropriate vehicle to conform a recognition to existing circumstances resulting from such nominal or technical changes as a change in the name of the exclusive representative or a change in the name or location of the agency or activity.”^[18]  The Authority also stated that a petition to amend a certification “cannot alter the bargaining relationship between parties.”^[19]

                Neither of those decisions has been revised or revoked.  Consequently, they remain in full force and effect.^[20]  Further, the parties have not asked us to revisit them, and we see no basis for doing so here.  In fact, in an early decision arising under the Federal Service Labor‑Management Relations Statute (the Statute), the Authority implied (without expressly holding) that these principles continue to apply under the Statute.^[21]  Specifically, the Authority stated the following:

 

[T]he . . . petition filed herein seeks only to bring the certification up to date, and to reflect the new name of the [a]ctivity.  There is no evidence in the record to substantiate [the union’s] contention that the name change would have the effect of lowering the level of recognition, or in any other manner change the relationship of the parties.  Accordingly, the Authority will order that the unit certification be amended to reflect the change in the name of the [a]ctivity.^[22]

 

                The Assistant Secretary’s and the Authority’s holdings discussed above are consistent with               well-established, private-sector precedent.^[23]  And other lines of Authority precedent further demonstrate that – contrary to the ARD’s finding – changing the level of recognition on a certification is not merely a nominal or technical change.  Instead, it has legal implications.  In this regard, “[b]oth the courts and the Authority have . . . limited the parties’ mandatory bargaining obligation, holding that a party is only required to negotiate with the certified exclusive representative and agency, respectively.”^[24]  Consequently, one party to a certified bargaining relationship may not force another to bargain below the level of recognition – such bargaining is a permissive subject of bargaining.^[25]  Consistent with these principles, “an agency may not foreclose bargaining on an otherwise negotiable matter by delegating authority as to that matter only to an organizational level within the agency different from the organizational level of recognition.”^[26]

 

                Granting the petition in this case would effectively allow the Agency to escape its statutory obligations to the Union, over the Union’s objections, and without any argument or evidence that organizational changes have occurred to render the bargaining relationship inappropriate.^[27]  This is contrary to the established law discussed above.

 

                Further, nothing in Naval Aviation Depot, cited by the ARD, is to the contrary.  In that case, the only change at issue (as relevant here) was a change in the name of the activity.^[28]  The instant case does not involve a situation where CNO has changed its name to CNIC; it involves a situation where CNO is trying to change the level of recognition to the CNIC, over the Union’s objection.  The established law set forth above demonstrates that this is inappropriate.  Therefore, we find that the ARD failed to apply established law.

 

                The dissent distinguishes Fort McCoy on the ground that, here (unlike there), the parties’ bargaining relationship changed before the Agency filed the petition.^[29]  As evidence of this change, the dissent claims that CNIC – not CNO – negotiated the latest collective‑bargaining agreement with the Union.^[30]  But it is undisputed that CNIC negotiated that agreement “on behalf of CNO”^[31] – in other words, as CNO’s “duly authorized representative[]” during negotiations.^[32]  That did not change the bargaining relationship between the Union and CNO.

 

                The dissent also suggests that the Authority should just defer to the ARD’s decision.^[33]  But, as established above, the ARD’s decision failed to apply established law.  And the dissent does not explain why we would defer to such a decision – particularly given that (as stated above) one of the express regulatory bases upon which we will grant review of a regional director’s decision is where the regional director has “failed to apply established law.”^[34]

 

                For the reasons set forth above, we reverse the ARD’s decision, grant the Union’s application for review, and dismiss the Agency’s petition.  Consequently, it is unnecessary to resolve the Union’s additional arguments, as set forth in its application.^[35]

 

4. Order

 

                We grant the Union’s application for review, and we dismiss the Agency’s petition.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Member Pizzella, dissenting:

 

In its legendary 1977 rock masterpiece, Hotel California, the Eagles (in my opinion, the greatest rock band ever) concluded, “[y]ou can check out any time you like, but you can never leave.”1

 

                In this case, the Department of the Navy (Navy) wanted to make a simple name change in the certification of the International Organization of Masters, Mates, and Pilots (Union).2  Specifically, the Navy wanted to amend the certification to replace the Chief of Naval Operations (CNO) with the Commander of the Navy Installations Command (CNIC), which, as Acting Regional Director (ARD) Jessica Bartlett found, is the “immediate superior in command . . . [at] the five . . . [r]egions in which     [the Union’s] . . . employees work”3 and reflects an organizational change which occurred thirteen years earlier.4 

 

                Applying Authority precedent, the ARD found that the requested change was “nominal or technical” in nature and did not “alter the nature and scope of the bargaining unit”5 and granted the Navy’s request to amend the certification.

 

Ignoring that same precedent upon which ARD Bartlett relied, the majority goes back forty years to Department of Army, Fort McCoy, Sparta, Wisconsin (Ft. McCoy)6 – an insignificant case, which has never before been cited by the Authority and which predates the enactment of the Federal Service Labor‑Management Relations Statute,7 the creation of the Authority, and one year before the Eagles released Hotel California – to find that the ARD erred in granting the Agency’s petition.

 

The majority thus creates a         Hotel‑California-esque scenario whereby an agency may request a change to the level of recognition in an existing certification following a reorganization, but it will be nearly impossible to have that change recognized even when the change would more accurately reflect the realities of the current bargaining relationships.

               

                Setting aside, for the moment, the majority’s nostalgic journey into the past to resurrect never used and questionable precedent, the majority’s decision is flawed in two respects.

 

                First, the majority misconstrues the ARD’s decision insofar as they state that the ARD found that changing the level of recognition on a certification is a nominal or technical change.  The ARD did not address whether a change in a level of recognition would be a nominal or technical change.  To the contrary, the ARD found that amending the Union’s certification to list the CNIC as the level of recognition instead of the CNO would “accurately reflect the current name of the agency that employs bargaining[‑]unit employees,” would “simply reflect[] the current organizational structure under which [the Union’s bargaining unit] work[s,] and [would] not otherwise alter the nature and scope of the bargaining unit.”8  The ARD’s decision did not change – and did not purport to change – the level of recognition.  Her decision simply recognized a change in the level of recognition that occurred when the Agency underwent a reorganization thirteen years earlier.9  In this respect, the majority misreads the ARD’s decision.

 

                Second, even though the majority relies extensively on Ft. McCoy to determine that the ARD failed to apply established law, they give but a passing nod to the point that the union in that            forty-year‑old case, raised similar arguments to the Union here but ignore why the Assistant Secretary of Labor rejected the agency’s request − because the Commander negotiated the latest bargaining agreement with the union and the Commander retained authority over all personnel matters, including selection, hiring, discipline, promotions, and personnel policies and procedures.10  Accordingly, the Assistant Secretary concluded that “there is no evidence that the relationship between the exclusive representative and the                             C[ivilian ]P[ersonnel ]O[fficer] was affected, altered[,] or diminished in any way.”11

 

                None of the facts upon which the Assistant Secretary based his conclusion in Ft. McCoy are present in this case.  Nonetheless, the majority erroneously concludes that the ARD reached her decision “without any argument or evidence that organizational changes have occurred to render the bargaining relationship inappropriate.”12  The ARD considered the same factual questions as the Assistant Secretary in Ft. McCoy, but found differently.  Specifically, the ARD found:  (1) that the CNIC, not the CNO, negotiated the latest bargaining agreement with the Union; and (2) that the CNIC has the authority “to hire, fire, and discipline [Union‑represented employees,] and arbitrate grievances.”13  The ARD also found that CNIC “has its own labor[‑]relations program that handles labor relations for CNIC employees.”14  Based on these findings, ARD Bartlett appropriately concluded that amending the certificate to change the name would “accurately reflect the current name of the agency that employs bargaining‑unit employees.”15  In response to these overwhelming factual findings (to which the Authority typically defers) the majority only briefly addresses one of the ARD’s findings.  Otherwise, the majority gives no reason for ignoring the reasonable factual findings made by the ARD.

 

                Therefore, I do not agree that the ARD failed to apply established law.  As I noted recently in              U.S. Department of VA, William Jennings Bryan Dorn, VA Medical Center, Columbia, South Carolina,16 the majority goes out of its way to defer to “arbitrators’ erroneous factual findings” but will, without any hesitation, second-guess and reject “the reasoned determinations of its own administrative law judges,”17 and now its own ARD.

 

                So once again….

 

                “Welcome to the Hotel California.

                Such a lovely place (such a lovely place)

                Such a lovely place.

                They’re living it up at the Hotel California

                What a nice surprise (what a nice surprise),

                Bring your alibis.”18

 

Thank you.