United States Department of the Army, United States Army Reserve Command, Fort McPherson, Georgia and United States Department of the Army, First U.S. Army, Fort Gillem, Georgia (Activities) and American Federation of Government Employees, AFL-CIO, Local 1759 (Petitioner) (Authority decision, April 27, 2001)

FLRA remand decision. The Authority grants review and remands the proposed accretion to the Regional Director for further proceedings. The unit question remains unresolved; this order is not presented as beginning the 60-day judicial-review period for a reviewable final order. Judicial review under 5 U.S.C. § 7123(a)(2) excludes orders involving appropriate-unit determinations under 5 U.S.C. § 7112.

Plain-English summary

AFGE Local 1759 sought to add First Army employees at Fort Gillem to its existing bargaining unit without an election. The Regional Director approved that addition, relying largely on shared personnel services and avoiding fragmentation. The Authority granted the agency’s application for review and sent the matter back. It found that the Director had not addressed whether a change in agency organization or operations affected the existing unit, a prerequisite to accretion. The Director also failed to assess the relevant factors for community of interest, effective dealings, and efficiency of operations. The order requires further findings and, if necessary, reopening the record; it does not finally decide the proposed addition.

Decision snapshot

• Authority: Accretion and the three statutory appropriate-unit criteria.
• Outcome: Review granted; accretion determination remanded for further proceedings.
• Key point: Shared personnel services alone do not establish that employees may join an existing unit without an election.

Full text (FLRA public release)

[ v57 p95 ]

57 FLRA No. 26

UNITED STATES DEPARTMENT OF THE ARMY

UNITED STATES ARMY RESERVE COMMAND

FORT MCPHERSON, GEORGIA

AND

UNITED STATES DEPARTMENT OF THE ARMY

FIRST U.S. ARMY, FORT GILLEM, GEORGIA

(Activities)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 1759

(Petitioner)

AT-RP-00030

_____

ORDER GRANTING APPLICATION FOR REVIEW

April 27, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members

I. Statement of the Case

This matter is before the Authority on an application for review filed by the Agency under § 2422.31 of the Authority's Regulations, seeking review of the Acting Regional Director's (RD's) decision granting the Union's petition in part. [n1] The Union did not file an opposition to the Agency's application. As relevant here, the RD found that eligible employees of the First Army, Fort Gillem, Georgia have accreted into the bargaining unit for which the Union is the exclusive representative. [n2] The RD ordered that the existing unit be clarified to include these First Army employees.

For the reasons that follow, pursuant to § 2422.31(c)(3)(i) of the Authority's Regulations, we grant the application for review on the ground that the RD failed to apply established law. We remand this matter to the RD.

II. Background and RD's Decision

The Union is the exclusive representative of a unit of eligible employees at the United States Army at Fort McPherson and Fort Gillem, Georgia (hereinafter "the existing unit"). The First Army headquarters is a tenant at Fort Gillem.

The Union filed a petition asserting, as relevant here, that First Army employees had accreted into the existing unit. The RD stated that, in order to find accretion, an analysis of the three appropriate unit criteria set forth in § 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute) is necessary. The RD found that: the First Army's Chief, Civilian Personnel Advisory Division ("First Army Personnel Chief") attends conferences conducted by Fort McPherson's personnel office; the same personnel office processes personnel actions, administers retirement and health benefits, and conducts labor relations matters for both First Army employees and unit employees; and the First Army was represented at the hearing by "employees of the U.S. Army Garrison located at Fort McPherson," and "[e]mployees of the U.S. Army Garrison are represented by" the Union. RD Decision at 10. Based solely on those findings, the RD concluded that the employees in the petitioned-for unit share a community of interest. The RD also found that "accretion of First Army employees to the unit . . . would promote effective dealings with, and efficiency of the agency's operations. To find otherwise would result in fragmentation." Id. at 11.

Based on the foregoing, the RD concluded that the First Army employees accreted to the existing unit, and she ordered that the certified unit be clarified accordingly. [ v57 p96 ]

III. Application for Review

The Agency argues that review of the RD's decision is warranted for two reasons.

First, the Agency contends that the RD failed to apply established law in finding accretion. It asserts that the RD misapplied the three appropriate unit criteria and failed to make a necessary finding that employees in the petitioned-for unit are organizationally and operationally integrated. The Agency also claims that the petitioned-for unit would not promote effective dealings or efficiency of Agency operations.

Second, the Agency contends that the RD committed clear and prejudicial errors concerning substantial factual matters because: (1) the employees in the petitioned-for unit are not sufficiently integrated; and (2) there have not been meaningful changes to the First Army employees' working conditions to warrant accretion.

IV. Analysis and Conclusions

A. The RD Failed to Apply Established Law by Not Addressing Whether a Change Has Occurred

Accretion involves the addition of a group of employees to an existing bargaining unit without an election based on a change in agency operations or organization. See United States Dep't of the Navy, Naval Air Warfare Command, Aircraft Div., Patuxent River, Md., 56 FLRA 1005, 1006 (2000) (Patuxent River). Because accretion precludes employee self-determination, the accretion doctrine is narrowly applied. See id. In Patuxent River, the Authority recently reiterated the elements necessary to find accretion. Specifically, the Authority considers whether there has been a "change in an agency's organization or operations affecting the appropriate unit criteria concerning an existing unit." Id. If there is such a change, then the Authority evaluates whether the petitioned-for unit is appropriate under § 7112(a) of the Statute, including consideration of whether the employees have become organizationally and operationally integrated into the existing unit. See id. at 1006-07.

The RD did not address whether there has been any change in the Agency's organization or operations affecting the appropriate unit criteria concerning the existing unit. The only record evidence of a change affecting the First Army is the 1995 consolidation of the First and Second Armies. See Tr. at 200-01. There is no evidence that this change affected the existing unit in any way or created any relationship between the First Army employees and employees in the existing unit. Therefore, we conclude that the RD failed to apply established law by failing to determine whether there has been a change in Agency operations, and we remand this matter to the RD to address this issue, as necessary. [n3]

B. The RD Failed to Apply Established Law in Determining That the Unit Is Appropriate

In determining whether a petitioned-for unit is appropriate, the Authority considers whether the unit would: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with the agency; and (3) promote efficiency of the operations of the agency. 5 U.S.C. § 7112(a). See United States Dep't of the Navy, Fleet and Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 959 (1997) (FISC). A proposed unit must meet all three appropriate unit criteria in order to be found appropriate. Id. at 961 n.6.

1. Community of Interest

The Authority assesses whether employees share a clear and identifiable community of interest by examining such factors as whether employees in the proposed unit: are a part of the same organizational component of the agency; support the same mission; are subject to the same chain of command; have similar or related duties, job titles, and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same personnel office. See id. at 960-61. In addition, such factors as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation are relevant. See id. at 961. In making appropriate unit determinations, the Authority does not specify the weight of individual factors to be considered. AFGE, Local 2004, 47 FLRA 969, 972 (1993).

The RD found that the employees in the petitioned-for unit are governed by the same personnel and labor policies that are administered by the same personnel office, and on that basis alone, she concluded that the employees share a community of interest. The RD made no findings regarding any of the other factors considered in assessing community of interest, including, as argued by the Agency, whether the employees in the [ v57 p97 ] petitioned-for unit are organizationally and operationally integrated.

The record contains evidence regarding some of these factors. [n4] However, the RD did not discuss that evidence or address how it should be weighed relative to the record evidence that she did discuss. In addition, the record does not appear to contain any evidence regarding several of the community of interest factors, including whether affected employees have similar duties, job titles, or work assignments, or are subject to the same working conditions.

We conclude that, by finding a community of interest based only on one factor, without considering the other relevant factors, the RD failed to apply established law. Because the record does not contain evidence regarding several of the community of interest factors, we remand this issue to the RD for resolution, as necessary.

2. Effective Dealings and Efficiency of Agency Operations

As with the community of interest criterion, the evaluation of the effective dealings and efficiency of agency operations criteria requires an assessment of several factors. See FISC, 52 FLRA at 961. With regard to effective dealings, 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. With regard to the efficiency of agency operations, the Authority examines such factors as the effect of the proposed unit on agency operations in terms of cost, productivity and use of resources. See id. at 961-62.

The RD's finding that the unit would promote effective dealings and efficiency of Agency operations was based solely on a determination that to find otherwise would result in fragmentation. We note that, in assessing community of interest, the RD addressed the locus of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit, which is also considered in assessing the effective dealings criterion. However, the RD did not assess any of the other factors that are analyzed in determining whether the unit would promote effective dealings or efficiency. Accordingly, we direct the RD to address these factors on remand, as necessary.

V. Order

The application for review is granted. This matter is remanded to the RD for further action consistent with this decision. [n5]

Footnote # 1 for
57 FLRA No. 26

The petition sought determinations that: the United States Army Reserve Command (USARC) is a successor employer of the United States Army Forces Command (FORSCOM); eligible USARC employees have accreted into the existing unit; and eligible First Army employees have accreted into the existing unit. The RD denied the petition as to the successorship and accretion claims regarding USARC, and the Union has not filed an application for review as to these aspects of the decision.

Footnote # 2 for
57 FLRA No. 26

That unit includes "[a]ll non-supervisory wage grade and general schedule employees of the following activities located at Fort McPherson, Georgia and Fort Gillem, Georgia: Headquarters, [FORSCOM], U.S. Army Garrison, U.S. Army Health Clinic, U.S. Army Dental Clinic, and U.S. Army Information Systems Command, Fort McPherson, Georgia." RD Decision at 3.

Footnote # 3 for
57 FLRA No. 26

As the Union's petition may not be granted unless there has been a sufficient change and all three appropriate unit criteria are satisfied, the RD may, on remand, find a different issue dispositive of the petition.

Footnote # 4 for
57 FLRA No. 26

In this connection, there was Agency testimony regarding: exchange of duties and employees between First Army and FORSCOM employees (Tr. at 170, 187); the authority to make decisions concerning grievances of, and approve collective bargaining agreements for, employees in the petitioned-for unit (id. at 184, 169); whether FORSCOM has authority to establish personnel policies, determine work hours, or training for First Army employees, (id. at 172, 182-83); and whether FORSCOM has the authority to hire, terminate, or discipline First Army employees (id. at 177-79).

Footnote # 5 for
57 FLRA No. 26

If, on remand, the RD deems the factual record to be incomplete, then it is incumbent upon the RD to reopen the record to obtain necessary evidence. See United States Dep't of Energy, Fed. Energy Regulatory Comm'n, 22 FLRA 3, 5 (1986).