United States, Department of the Army, Military Traffic Management Command, Alexandria, Virginia (Agency) and American Federation of Government Employees, Local 909/2, AFL-CIO (Labor Organization/Petitioner) and American Federation of Government Employees, Local 2855, AFL-CIO (Labor Organization/Applicant) (Authority decision, November 10, 2004)

FLRA representation decision. This order grants review in part and directs supplemental briefing on whether an election is required between two locals of the same union. It does not end the underlying representation proceeding or present a judicial-review period as running from this order. An Authority order involving an appropriate-unit determination under 5 U.S.C. § 7112 falls within the review exclusion in 5 U.S.C. § 7123(a)(2).

Plain-English summary

A reorganization joined Army transportation command operations in Alexandria and Fort Eustis, where two AFGE locals had represented separate employee groups. A regional director found the Fort Eustis employees had joined the Alexandria bargaining unit. The Authority rejected Local 2855's challenges to the finding that Fort Eustis employees no longer formed a separate appropriate unit. It granted review on whether an election was required before combining employees represented by two locals of the same national union. The Authority requested briefs on that unresolved question and denied review on the other grounds. Chairman Cabaniss would have ordered an election immediately.

Decision snapshot

• Authority: 5 U.S.C. §§ 7111(b), 7112(a), and 7123(a)(2).
• Outcome: Review granted only on the election question; supplemental briefs ordered.
• Key point: The Authority left open whether competing locals of the same national union may require a representation election after reorganization.

Full text (FLRA public release)

[ v60
p390 ]

60 FLRA No. 78

UNITED STATES

DEPARTMENT OF THE ARMY

MILITARY TRAFFIC

MANAGEMENT COMMAND

ALEXANDRIA, VIRGINIA

(Agency)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 909/2, AFL-CIO

(Labor Organization/Petitioner)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 2855, AFL-CIO

(Labor Organization/Applicant)

WA-RP-02-0063

AND

UNITED STATES

DEPARTMENT OF THE ARMY

MILITARY TRAFFIC

MANAGEMENT COMMAND

ALEXANDRIA, VIRGINIA

(Agency)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 2855, AFL-CIO

(Labor Organization/Petitioner/Applicant)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 909/2, AFL-CIO

(Labor Organization)

WA-RP-03-0018

_____

ORDER GRANTING, IN PART, AND DENYING

IN PART, APPLICATION FOR REVIEW

November 10, 2004

_____

[ v60
p391 ]

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This case is before the Authority on an application for review filed by the American Federation of Government Employees (AFGE), Local 2855 (Local 2855) under § 2422.31 of the Authority's Regulations. Local 2855 seeks review of the Regional Director's (RD's) Decision and Order finding that a unit of employees previously represented by Local 2855 had accreted to a bargaining unit represented by AFGE, Local 909/2 (Local 909/2). No timely opposition was filed. [n2]

For the reasons that follow, we grant the application for review, in part, because it establishes that there is a genuine issue as to whether the RD failed to apply established law. The parties are requested to file supplemental briefs concerning the questions set forth at the end of this decision. The application for review is denied in all other respects.

II. Background and RD's Decision

Prior to the reorganization at issue here, the Military Traffic Management Command Headquarters (MTMC HQ) was located entirely in Alexandria, Virginia, while one of its subordinate commands, the Deployment Support Command (DSC), was located in Fort Eustis, Virginia. MTMC HQ managed the Department of Defense's surface transportation movement operations outside the continental United States, while DSC managed those operations within the continental United States. Local 909/2 represented a bargaining unit of employees at MTMC HQ and Local 2855 represented a unit of employees at DSC.

A reorganization disestablished DSC with the result that MTMC HQ assumed DSC's continental United States functions as well as its command structure and staff support components (e.g., information management, resource management, equal employment opportunity). Nearly all of MTMC HQ's Operations functions were relocated from HQ Alexandria to HQ Fort Eustis, and the Command Operations Center was established at HQ Fort Eustis as an integrated portion of MTMC HQ. Thus, MTMC HQ became dually located in Alexandria and Fort Eustis.

After the reorganization, Local 2855 and Local 909/2 filed separate petitions seeking a determination of the effect of the reorganization on their respective bargaining units. [n3] Local 2855 alleged that HQ Fort Eustis is a successor employer to DSC, and that Local 2855 should be found to be the exclusive representative of employees at Fort Eustis. Local 909/2 alleged that MTMC HQ was the successor employer of employees at both locations and that Local 909/2 should be found to be the exclusive representative of both units.

The RD first addressed Local 2855's successorship claim, applying the criteria for determining successorship set forth in Naval Facilities Eng'g Serv. Ctr., Port Hueneme, Cal., 50 FLRA 363 (1995) (Port Hueneme), [n4] including the requirement that the employees must be in an appropriate bargaining unit under § 7112(a) of the Federal Service Labor-Management Relations Statute (Statute). Citing United States Dep't of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328 (2000) (COMNAVBASE) (Chairman Wasserman concurring in part and dissenting in part on other grounds), the RD noted that a change in an agency's chain of command does not, by itself, render an existing unit inappropriate, but that the Authority will evaluate how such a change has affected each of the three appropriate unit criteria set forth in § 7112(a). [n5] [ v60 p392 ]

Applying those criteria, the RD first determined that HQ Fort Eustis employees do not have a clear and identifiable community of interest separate from the HQ Alexandria employees. In this regard, the RD found that the two units are functionally and operationally integrated because "[u]nlike prior to the reorganization when the DSC functioned as a separate, independent subordinate command to MTMC HQ, the employees at the two MTMC locations now perform interrelated duties to carry out the expanded mission of MTMC HQ as one organizational component under a unified chain of command, with overall supervision resting in a single Commander." RD Decision at 14. In addition, the RD found that most MTMC HQ operations functions are performed at HQ Fort Eustis, that most HQ functions necessary to support those operations originate from HQ Alexandria, that both locations now operate under a single, centralized budget process, and that "it is clear from the record that neither of the two MTMC HQ locations can function in a vacuum without the other." Id. at 15. Further, the RD found that although the two units were subject to separate and independent personnel authority prior to the reorganization, "both groups of employees are now subject to the same overall MTMC HQ personnel policies and practices, which emanate from a single personnel authority, the MTMC HQ Chief of Staff[.]" Id. The RD acknowledged that the employees receive day-to-day personnel services from different Civilian Personnel Operation Centers (CPOCs) and Civilian Personnel Advisory Centers (CPACs), and are in separate areas of consideration for promotion and reductions-in-force (RIFs), but found that "the record does not establish their general day to day working conditions are significantly different." Id.

The RD also determined that a separate unit of HQ Fort Eustis employees would not promote effective dealings with the Agency or the efficiency of the Agency's operations. Accordingly, the RD concluded that Local 2855's proposed separate unit of HQ Fort Eustis employees would not constitute an appropriate unit, and he dismissed Local 2855's petition.

Next, the RD rejected Local 909/2's assertion that MTMC HQ is a successor employer. In this regard, the RD found that MTMC HQ "existed both before and after the reorganization" and that "despite the expansion of its mission and addition of a second facility, . . . MTMC HQ remained unchanged by the reorganization." Id. at 17. According to the RD, "application of successorship principles to Local 909/2's bargaining unit would have to involve a change of employers," and, as a result, he was unable to find that successorship occurred in this case. Id.

Nevertheless, the RD agreed with Local 909/2's claim that, as a result of the reorganization, its unit now included employees in both Alexandria and Fort Eustis. In this regard, the RD determined that employees in both locations share a clear and identifiable community of interest, noting that the employees have been "functionally and operationally integrated" under "a single Commander to carry out the mission of MTMC HQ as one organizational component." Id. at 18. The RD found that, due to this integration, inclusion of the HQ Fort Eustis employees in the MTMC HQ unit would promote effective dealings and efficiency of Agency operations because the two groups of employees share "common interests and concerns . . . which can be efficiently and effectively addressed through the resources of the single responsible HQ MTMC Human Resources office which now has overall authority over MTMC HQ's personnel matters at both locations." Id. Accordingly, "through the application of accretion principles," the RD clarified the MTMC HQ unit to include MTMC HQ employees in both Alexandria and Fort Eustis. [n6]

III. Local 2855's Application for Review

Local 2855 challenges several of the RD's factual findings. Specifically, Local 2855 asserts that there was testimony that contradicted the RD's findings regarding the degree of interaction between HQ Alexandria and HQ Fort Eustis, as well as the extent to which HQ Fort Eustis has its own labor relations and budget authority.

Additionally, Local 2855 asserts that the RD "committed a prejudicial procedural error." Application at 6. In this connection, Local 2855 contends that the RD disregarded employees' testimony that they continue to perform the same duties as prior to the reorganization, and that, with regard to the daily relationship and degree of integration between HQ Alexandria and HQ Fort Eustis, the RD inappropriately weighed management testimony more heavily than other record evidence.

Further, Local 2855 asserts that "[t]he RD erred in applying the Statute" in two respects. Id. at 8. First, Local 2855 contends that the RD erred by finding that the unit at HQ Fort Eustis is not a separate appropriate unit. In this connection, Local 2855 contends that HQ Fort Eustis employees have conditions of employment that are different from HQ Alexandria employees, [ v60 p393 ] including geographic separation, certain positions that are not present at HQ Alexandria, separate areas of consideration for promotion and RIF, separate promotion plans and vacancy announcements, different CPOCs and CPACS, and different sites maintaining their official personnel folders. Additionally, Local 2855 asserts that a change in chain of command, by itself, does not render an existing bargaining unit inappropriate. Moreover, Local 2855 asserts that, subsequent to the reorganization, the Executive Office of HQ Fort Eustis has continued to effectively administer the collective bargaining agreement in place there, demonstrating that effective dealings and efficiency of Agency operations would not be hindered by recognizing a separate unit there.

Second, Local 2855 argues that, to the extent a separate HQ Fort Eustis unit is inappropriate, the RD should have directed an election. It asserts that neither Local represents a majority of the relevant employees or is "sufficient[ly] predominant to render an election unnecessary." Application at 8.

IV. Analysis and Conclusions

A. The RD did not commit clear and prejudicial errors concerning substantial factual matters.

Local 2855 argues that the RD erred in his findings regarding the degree of interaction between HQ Alexandria and HQ Fort Eustis, as well as the extent to which HQ Fort Eustis has its own labor relations and budget authority. We construe this argument as a claim that there is a genuine issue over whether the RD "[c]ommitted a clear and prejudicial error concerning . . . substantial factual matter[s]." 5 C.F.R. § 2422.31(c)(3)(iii).

Record evidence supports the RD's conclusions that there is extensive interaction between HQ Fort Eustis employees and HQ Alexandria employees, and that the two sections of MTMC HQ are highly integrated. See Tr. of Nov. 19, 2002 hearing at 35-36 & 38; 166-72; Tr. of August 5-6, 2003 hearing at 162-65. Record evidence also supports the RD's conclusions that labor relations matters for both groups of employees are controlled at MTMC HQ. See Tr. at 36; 47; 52; 54-55; 66; 95; Tr. at 71; 169-73. Finally, record evidence supports the RD's findings regarding the centralization of budgetary authority at MTMC HQ. See Tr. at 139; 141; 143-45; 147; 153-55. Because record evidence supports the RD's findings on these points, we conclude that Local 2855 has not demonstrated that the RD committed clear and prejudicial errors concerning substantial factual matters.

B. The RD did not commit a prejudicial procedural error.

Local 2855 asserts that the RD "committed a prejudicial procedural error[]" because he allegedly disregarded employees' testimony that they continue to perform the same duties as prior to the reorganization and inappropriately gave greater weight to management's testimony than to other record evidence with regard to the daily relationship and degree of integration between HQ Alexandria and HQ Fort Eustis. Application at 6.

Contrary to Local 2855's assertion, the RD did not disregard employees' testimony that they continue to perform the same duties as prior to the reorganization. In this regard, the RD specifically cited such testimony and found that the record failed to demonstrate that employees' basic day-to-day working conditions changed as a result of the reorganization. See RD Decision at 10-11. With regard to the daily relationship and degree of integration between HQ Alexandria and HQ Fort Eustis, as discussed previously, record testimony supports the RD's findings in this regard. See supra, section IV.A. Further, Local 2855's assertion that there was conflicting evidence on these points does not demonstrate that the RD erred, because the Authority frequently has found that an RD's decision is not deficient merely because the RD credited, or declined to credit, certain testimony. See, e.g., United States DOD, Def. Commissary Agency, 59 FLRA 990, 994 (2004) (decision not to credit testimony); Dep't of the Interior, Nat'l Park Serv., Lake Mead Nat'l Recreation Area, Boulder City, Nev., 57 FLRA 582, 585 (2001) (decision to credit testimony); United States Dep't of HHS, Office of the Gen. Counsel, Balt., Md., 45 FLRA 894, 898 (1992) (failure to address conflict in testimony). For these reasons, we conclude that the RD did not commit a prejudicial procedural error by crediting certain testimony over other testimony.

C. The RD did not fail to apply established law in finding that a separate unit of HQ Fort Eustis employees would not be appropriate.

Local 2855, citing Authority precedent, asserts that the RD erred by finding that a separate unit of HQ Fort Eustis employees would not be appropriate. We construe this assertion as a claim that there is a genuine issue over whether the RD "[f]ailed to apply established law[.]" 5 C.F.R. § 2422.31(c)(3)(i).

In determining whether an existing unit remains appropriate after a reorganization, the Authority focuses on the changes caused by the reorganization, and [ v60 p394 ] assesses whether those changes are sufficient to render a recognized unit inappropriate. See COMNAVBASE, 56 FLRA at 332 (citations omitted). To determine whether a unit is appropriate or inappropriate under § 7112(a) of the Statute, the Authority considers whether the unit would: (1) ensure a clear and identifiable community of interest among employees in the unit; (2) promote effective dealings with the agency involved; and (3) promote efficiency of the operations of the agency involved. See, e.g., United States Dep't of the Air Force, Lackland Air Force Base, San Antonio, Tex., 59 FLRA 739, 741 (2004) (Lackland AFB). A proposed unit must meet all three criteria in order to be found appropriate. See id. Determinations as to each of these criteria are made on a case-by-case basis. See id. The Authority has set out factors for assessing each criterion, but has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. See id.

With regard to the first appropriate unit criterion -- whether employees share a clear and identifiable community of interest -- the Authority examines such factors as whether the 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 United States Dep't of the Navy, Fleet & Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 960-61 (1997) (FISC) (citations omitted). In addition, factors such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation may be relevant. See id. at 961. In accretion cases, the Authority also examines whether employees have been organizationally and operationally integrated. See, e.g., United States Dep't of the Army, Corps of Eng'rs, United States Army Eng'r Dist., Vicksburg, Miss., 57 FLRA 620, 623 (2001).

The RD considered the working conditions of the bargaining unit at HQ Fort Eustis both before and after the reorganization, and he found that the reorganization caused several changes. Specifically, the RD found that although, for the most part, DSC operated independently from MTMC HQ prior to the reorganization, after the reorganization, the employees at HQ Fort Eustis and HQ Alexandria: (1) are part of "one organizational component[;]" (2) all support "the expanded mission of MTMC HQ[;]" are "under a unified chain of command, with overall supervision resting in a single Commander[;]" and (3) "perform interrelated duties[.]" RD Decision at 14. In addition, the RD found that "the record does not establish" that the two units' "general day to day working conditions are significantly different[]" from one another, and that both units "are now subject to the same overall MTMC HQ personnel policies and practices, which emanate from a single personnel authority, the MTMC HQ Chief of Staff[.]" Id. at 15. Further, the RD found that after the reorganization, there is "regular, frequent, reoccurring contact between the two MTMC HQ locations[,]" id. at 7, and that the two locations are now subject to the same budget, see id. at 6. With regard to the organizational and operational integration required for accretion, the RD determined that the two units are "functionally and operationally integrated[,]" id. at 18, and that "neither of the two MTMC HQ locations can function in a vacuum without the other[,]" id. at 15. These findings support the RD's conclusion that the HQ Fort Eustis employees no longer have a community of interest separate from the HQ Alexandria employees.

Local 2855 contends that HQ Fort Eustis employees have conditions of employment that are different from HQ Alexandria employees. The RD acknowledged many of these differences, such as different CPOCs and CPACs and different areas of consideration for promotion and RIF, but found those differences outweighed by the other extensive similarities between the two units. See id. at 15. As discussed previously, the Authority has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. See Lackland AFB, 59 FLRA at 741. Thus, there is no basis for finding that the RD erred by finding that the extensive similarities between the two units outweigh the differences cited by Local 2855.

We note that Local 2855 correctly argues that a change in chain of command, by itself, will not render an existing unit inappropriate. See COMNAVBASE, 56 FLRA at 332. However, the RD did not find that a change in chain of command, by itself, rendered the existing unit at HQ Fort Eustis inappropriate. Instead, consistent with COMNVABASE, the RD considered how the reorganization and the changes in chains of command affected the three appropriate unit criteria. Accordingly, Local 2855's argument is misplaced.

Finally, the decisions cited by Local 2855 do not demonstrate that the RD erred by finding no separate community of interest. In those decisions, there were no findings by the RDs that the employees at issue were organizationally and operationally integrated with [ v60 p395 ] another group of employees. See Dep't of HHS, Navajo Area Indian Health Serv., Shiprock Serv. Unit, Shiprock, N.M., 49 FLRA 1375 (1994)(HHS); United States Geological Survey, Water Res. Div., S.E. Region, Caribbean Dist., 46 FLRA 832 (1992) (Geological Survey); Def. Logistics Agency, Def. Contract Admin. Servs. Region Cleveland, Def. Contract Admin. Servs., Plant Representative Office, Goodyear Aerospace, Akron, Ohio, 15 FLRA 962 (1984) (DLA Akron); and DOD Dependents Sch., 6 FLRA 297 (1981). Further, in HHS and DLA Akron, unlike here, there was limited contact between the groups of employees, and in Geological Survey, unlike here, there were findings that the employees shared conditions of employment not present at any other agency location and that the chief in charge of the employees' location had significant authority over personnel decisions and local working conditions.

For the foregoing reasons, we conclude that the RD did not fail to apply established law by finding that the HQ Fort Eustis employees no longer share a community of interest separate from the HQ Alexandria employees. Thus, the RD did not fail to apply established law by finding that a separate unit at HQ Fort Eustis is inappropriate. [n7]

D. We grant review of the RD's failure to order an election.

Local 2855 claims that an election is required in this case because Local 909/2 is not "sufficiently predominant." Application at 8. The Union relies on the decision in Def. Logistics Agency, Def. Supply Ctr. Columbus, Columbus, Ohio, 53 FLRA 1114, 1134 (1998) (DLA Columbus), where, in response to petitions filed after a reorganization, the Authority directed an election between AFGE and IFPTE on the ground that both unions represented employees in a new unit, in "virtually equal numbers," and that, as a result, neither union was "sufficiently predominant." After DLA Columbus, the Authority clarified that absent "special circumstances," a union is "sufficiently predominant," and no election is required, if the union "represents more than seventy percent of the employees in [the] newly combined unit[.]" [n8] Dep't of the Army, United States Army Aviation Missile Command (AMCOM), Redstone Arsenal, Ala., 56 FLRA 126, 131 (2000) (Redstone Arsenal). The foregoing precedent demonstrates that, as relevant here, elections are required in certain post-reorganization situations involving competing claims by different unions. [n9]

There is, however, a factor present in this case that is not present in any previous Authority decision regarding a representation election: the disputing unions here are locals of the same union, AFGE. Local 2855 cites no authority for finding that this situation raises a question of representation, for which an election is required under the Statute. [n10] See 5 U.S.C. § 7111(b)(1)(B) (election shall be conducted where "question of representation exists"). In addition, there appears to be no Authority precedent on this point. [n11]

We construe Local 2855's argument that the Authority apply the "sufficiently predominant" test and order an election between two locals of the same union as requesting review on the ground that the RD's decision fails to apply established law, pursuant to [ v60 p396 ] § 2422.33(c)(3)(i) of the Authority's regulations. It is unclear from the Authority's established law whether the "sufficiently predominant" test applies in the circumstances of this case. Accordingly, we grant the application for review, in part, because it establishes that there is a genuine issue over whether the RD has failed to apply established law. The parties are directed to address the questions set forth below.

V. Order

The application for review is granted, in part, under § 2422.32(c)(3)(i) of the Authority's Regulations because it establishes that there is a genuine issue over whether the RD has failed to apply established law. The parties are directed to address the following questions:

Under what circumstances, if any, does § 7111(b) of the Statute provide for an election to be directed where two groups of employees represented by separate locals of the same union are combined into a single bargaining unit?

What standard should be applied to determine whether, in circumstances following an agency reorganization, an election should be held when competing claims of recognition are made by two locals of the same national labor organization?

In accordance with § 2422.31(g) of the Authority's Regulations, the parties are directed to file briefs on the issues set forth. Briefs will be considered if received by mail or personal delivery in the Authority's Case Control Office by 5 p.m. on December 10, 2004. Placing submissions in the mail by this deadline will not be sufficient. Extensions of time to submit briefs will not be granted. Briefs should be directed to:

Gail D. Reinhart

Director, Case Control Office

Federal Labor Relations Authority

1400 K Street, NW., Suite 201

Washington, D.C. 20424-0001

We deny the application for review in all other respects.

File 1: Authority's Decision in 60
FLRA No.
78

File 2: Opinion of Chairman Cabaniss

Footnote # 1 for
60
FLRA No. 78

• Authority's Decision

Chairman Cabaniss' opinion, concurring in part and dissenting in part, is set forth at the end of this decision.

Footnote # 2 for
60
FLRA No. 78

• Authority's Decision

The Agency filed an untimely opposition, which we do not consider. Because we do not consider that opposition, we also do not consider the Union's response to the opposition.

Footnote # 3 for
60
FLRA No. 78

• Authority's Decision

The RD found, and there is no dispute, that at the time of the hearing the unit represented by Local 909/2 included 354 employees and the unit represented by Local 2855 included 261 employees. See RD Decision at 9.

Footnote # 4 for
60
FLRA No. 78

• Authority's Decision

Under Port Hueneme, 50 FLRA at 368, the Authority will find that a gaining entity is a successor, and a union retains its status as the exclusive representative of employees who are transferred to the successor, when:

(1) An entire recognized unit, or a portion thereof, is transferred and the transferred employees: (a) are in an appropriate bargaining unit . . . 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 . . . ; and

(3) It has not been demonstrated that an election is necessary to determine representation (footnote omitted).

Footnote # 5 for
60
FLRA No. 78

• Authority's Decision

Section 7112(a) provides that the Authority may determine a unit appropriate "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 # 6 for
60
FLRA No. 78

• Authority's Decision

The RD noted that MTMC had been renamed the Military Surface Deployment and Distribution Command after the hearing, and he modified the unit description accordingly. There is no claim that this has any effect on the issues in this case.

Footnote # 7 for
60
FLRA No. 78

• Authority's Decision

Because all three appropriate criteria must be satisfied in order to find a unit appropriate, see Lackland AFB, 59 FLRA at 741, the conclusion that the proposed unit of HQ Fort Eustis employees does not meet the community of interest criterion supports a conclusion that the unit is not appropriate. Accordingly, it is unnecessary to address whether the RD erred in his findings regarding the remaining appropriate unit criteria.

Footnote # 8 for
60
FLRA No. 78

• Authority's Decision

As noted supra, note 3, at the time of the hearing, the bargaining unit at HQ Alexandria included 354 employees, and there were 261 unit eligible employees at HQ Fort Eustis.

Footnote # 9 for
60
FLRA No. 78

• Authority's Decision

We note that the Authority has also found that "an election would be necessary to determine representation after a reorganization or consolidation when the number of unrepresented employees in the gaining entity exceeds the number of represented employees." SSA, Dist. Office, Valdosta, Ga., 52 FLRA 1084, 1091 (1997) (SSA). There are no unrepresented employees at issue in this case.

Footnote # 10 for
60
FLRA No. 78

• Authority's Decision

We note, in this regard, that the Authority has held, in the context of a vote concerning a proposed change in affiliation, that the Authority "has no statutory mandate to conduct or assure the validity of elections concerning a union's internal structure or affiliations." Union of Fed. Employees, 41 FLRA 562, 586 (1991). Accord United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the United States and Canada, AFL-CIO v. Local 334, United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the United States & Canada, 452 U.S. 615, 626 (1981) (dispute over merger of union locals not within NLRB jurisdiction).

Footnote # 11 for
60
FLRA No. 78

• Authority's Decision

Member Pope notes that none of the decisions cited in the dissent in any way addresses Authority-run elections in disputes involving only locals of the same union. One decision resolved a unit clarification issue involving only one union local where no election was sought. United States Army Missile Command, United States Army Test, Measurement & Diagnostic Equip. Support Group, Redstone Arsenal, Ala., 17 FLRA 183 (1985). Two decisions (about local union mergers) involved internal union elections, not Authority-run elections. Naval Aviation Depot, Naval Air Station, Alameda, Cal., 47 FLRA 242 (1993); Fla. Nat'l Guard, Saint Augustine, Fla., 25 FLRA 728 (1987). The remaining decision concerned a union attempt to sever employees from one unit and move them to another unit where no election was sought. NAGE/SEIU, Local 5000, AFL-CIO-CLC, 52 FLRA 1068 (1997). In sum, none of the decisions supports a conclusion that the RD erred in failing to direct an Authority-run election here.

[ v60
p396 ]

Opinion of Chairman Cabaniss, concurring in part and dissenting in part:

I agree that there is a need to grant the application for review (AFR) in this case. However, I write separately to explain why I would not resolve this matter on an issue the AFR does not raise. Instead, and consistent with the issues raised in the AFR, I would grant the AFR and order an election.

I am concerned that the majority has, without explanation or justification, decided to process this case based upon an issue not raised in the AFR. The AFR rightfully points out our precedent which requires that there be an election in accretion situations when neither of the competing bargaining units is "sufficiently predominant" (which is defined by our precedent as comprising 70% or more of the new bargaining unit). Clearly, the AFR asserts that there is a genuine issue over whether the Regional Director deciding this case failed to apply established law, although I see more than a genuine issue, I see the conclusion that there was a failure to apply our sufficiently predominant precedent. However, the AFR never raises as a concern the fact that there are two bargaining units of the same national union involved in this case, and I am concerned that the majority has no basis for addressing that issue other than its own unsubstantiated desire to do so.

I raise this concern because there is nothing new or unusual in our precedent from different bargaining units of the same national union disputing what took place in a representation case. In United States Army Missile Command; United States Army Test, Measurement and Diagnostic Equipment Support Group, Redstone Arsenal, Ala., 17 FLRA 183 (1985) (Army Missile Command), the Authority exercised jurisdiction over questions arising out of the movement of employees from one bargaining unit to two other bargaining units, all three bargaining units being part of the same American Federation of Government Employees local. The Authority upheld the accretion of the employees from the first unit to the other two units, thereby rejecting the first unit's attempts to retain its identity.

In Florida National Guard, St. Augustine, Fla., 25 FLRA 728 (1987) (Florida National Guard), the Authority exercised jurisdiction over a dispute between two locals of the National Association of Government Employees. One of the locals alleged that the Montrose ruling (Veterans Admin. Hospital, Montrose, N.Y., 4 ASLMR 858 (1974), review denied, 3 FLRC 259 (1975)) did not apply to a merger of two local unions of the same national union. The Authority dismissed this claim, finding that the requirements of Montrose were [ v60 p397 ] equally applicable to where the two competing unions were part of the same national union.

In Naval Aviation Depot, Naval Air Station, Alameda, Cal., 47 FLRA 242 (1993) (Naval Aviation Depot), the Authority again applied the requirements of Montrose to the merger of two bargaining units of the International Association of Machinists and Aerospace Workers, and denied the application for review, which had challenged the legitimacy of the Florida National Guard decision and its application of Montrose to a situation involving two bargaining units of the same national union.

In National Association of Government Employees/ Service Employees International Union, Local 5000, AFL-CIO-CLC, 52 FLRA 1068 (1997) (NAGE), the Authority examined a dispute involving the desired transfer of 900 employees from one bargaining unit to another bargaining unit of the same national union. While both bargaining units agreed to this change, the relevant regional director dismissed the petition because the parties had failed to prove that severance was justified under Authority precedent. After initially granting the Unions' application for review, 51 FLRA 969 (1996)), the Authority dismissed the petition, finding no basis for permitting the action.

I conclude from the above cases, and from the fact that the Authority has never raised any concern about cases involving different bargaining units of the same national union, that there is nothing novel or new from the circumstances of the case here, and see no reason for not applying our sufficiently predominant precedent to this case. Thus, I see no basis for now attempting to draw a distinction based on that fact (indeed, the Florida National Guard decision expressly rejected that attempted distinction), especially in the context of an accretion situation (the circumstances at issue in the Army Missile Command case). In reviewing the relevancy of the 41 FLRA 562 decision (which predates many of the decisions noted, supra) discussed in the majority opinion, I note that there the Authority was examining the meaning of the term "secret ballot" in a Montrose situation, and in determining the appropriateness of the level of secrecy at issue, found that an assurance of absolute secrecy to not be required because the Authority has "no statutory mandate to conduct or assure the validity of elections concerning a union's internal structure or affiliations." 41 FLRA at 586. The emphasis of that comment is on the secrecy of elections, not the Authority's ability to conduct an election about which bargaining unit should become an exclusive representative in an accretion situation. And, taken to its logical conclusion, the majority's reliance on this case for the point asserted would seem to be at odds with our involvement with any aspect of a Montrose case since such cases by their nature involve "a union's internal structure or affiliations" question.

Consequently, based upon the case discussions noted above, and in addition to the fact that the issue in question was not raised in the AFR, I conclude that there is no basis for attempting to parse our precedent based upon the fact that there are two bargaining units from the same national union involved. I also conclude that the moving party did not fail to cite any "authority for finding that this situation raises a question of representation, for which an election is required under the Statute." Majority opinion at 13. To the contrary, the moving party did just that, it cited the Authority's sufficiently predominant precedent.

Therefore, consistent with the sufficiently predominant precedent, I would find that it was error to not order an election in this case to determine which of the two bargaining units would become the exclusive representative. [*]

File 1: Authority's Decision in 60 FLRA No. 78

File 2: Opinion of Chairman Cabaniss

Footnote * for
60
FLRA No. 78

• Opinionof Chairman Cabaniss

Footnote 11 in the majority opinion notwithstanding, the Authority has never seen a need to modify its representation precedent, or not apply that precedent, because a representation dispute involves two or more bargaining units of the same national union. As already noted, the Authority in Florida National Guard was expressly urged to do just that, yet saw no reason for doing so. I see nothing that warrants any different outcome here. I find that to be even more true because neither of the parties has urged us to not apply our existing representation caselaw precedent. To the contrary, the AFR expressly argues that it was error to not apply our current sufficiently predominant precedent.