[Federal Register Volume 59, Number 224 (Tuesday, November 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28817]


[[Page Unknown]]

[Federal Register: November 22, 1994]


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FEDERAL LABOR RELATIONS AUTHORITY

 

Federal Employees; Criteria to be Applied in Determining Employer 
Successorship

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of opportunity to file briefs as amici curiae in a 
proceeding before the Federal Labor Relations Authority in which the 
Authority is determining whether an activity established as part of an 
agency reorganization is a successor employer for collective bargaining 
purposes.

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SUMMARY: The Federal Labor Relations Authority provides an opportunity 
for all interested persons to file briefs as amici curiae on 
significant issues arising in a case pending before the Authority. The 
Authority is considering this case pursuant to its responsibilities 
under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 
7101-7135 (1988) and its regulations set forth at 5 CFR part 2422 
(1994). The issues concern the criteria and analysis for determining 
whether an agency is a successor employer of an existing bargaining 
unit where the continued appropriateness of the unit is questioned and 
accretion is claimed.

DATES: Briefs submitted in response to this notice will be considered 
if filed by December 9, 1994. The date of filing shall be determined by 
the date of mailing as indicated by the postmark date. If no postmark 
date is evident on the mailing, it shall be presumed to have been 
mailed 5 days prior to receipt. If filing is by personal delivery, it 
shall be considered filed on the date it is received by the Authority.

ADDRESSES: Mail or deliver briefs to Alicia N. Columna, Director, Case 
Control Office, Federal Labor Relations Authority, Suite 415, 607 14th 
Street, NW., Washington, DC 20424-0001.

FORMAT: All briefs shall be captioned ``Naval Facilities Engineering 
Service Center, Port Hueneme, California and National Association of 
Government Employees, Local R12-28, No. SF-CU-40012, Amicus Brief'' and 
shall contain separate, numbered headings for each issue discussed. 
Parties must submit an original and four (4) copies of each amicus 
brief, with any enclosures, on 8\1/2\  x  11 inch paper.

FOR FURTHER INFORMATION CONTACT:Alicia N. Columna, Director, Case 
Control Office, Federal Labor Relations Authority, Suite 415, 607 14th 
Street, NW., Washington, DC 20424-0001, Telephone: FTS or Commercial 
(202) 482-6540.

SUPPLEMENTARY INFORMATION: On November 18, 1994, the Authority granted, 
in part, an application for review of the Acting Regional Director's 
Decision and Order in Naval Facilities Engineering Service Center, Port 
Hueneme, California and National Association of Government Employees, 
Local R12-28, No. SF-CU-40012, and consolidated cases. A copy of the 
decision may be obtained in the Authority's Case Control Office at the 
aforementioned address; a copy will be forwarded (by mail or facsimile) 
to any interested person who so requests by contacting Alicia Columna 
at the same address. A brief summary of the case follows.
    The union filed clarification of unit (CU) petitions requesting 
that certain recognized bargaining units be clarified to include 
employees who it claimed has accreted to the units as a result of a 
reorganization which (1) disestablished the employing entity in which 
the units were originally recognized (the previous entity) and (2) 
created a new entity (the current employing activity) encompassing the 
previous one as well as others in which no labor organizations held 
exclusive recognition. The union claimed that the new entity was the 
successor employer to the one in which recognition previously was 
granted. The current employing activity filed representative status 
(RA) petitions challenging the continued appropriateness of the units 
for which clarification was sought.
    Applying the factors for determining successorship set forth in 
Department of Energy, Western Area Power Administration, 3 FLRA 77 
(1980) (DOE), the Acting Regional Director (ARD) dismissed the CU 
petitions and directed that representation elections be conducted. 
These factors are: (1) The existing unit must be transferred 
substantially intact to the gaining employer; (2) the appropriateness 
of the unit must remain unimpaired in the gaining employer; and (3) a 
question concerning representation (QCR) may not be timely raised as to 
the representative status of the incumbent union. In the ARD's view, 
the second DOE factor was not met because the reorganization had 
substantially changed the character and scope of the former units so 
that the appropriateness of the units was impaired, and the third DOE 
factor was not met because the RA petitions filed by current employing 
activity raised a QCR.
    The Authority granted review, under Sec. 2422.17(c) of the 
Authority's Regulations, 5 CFR 2422.27(c), of the ARD's conclusions 
regarding both the second and third DOE factors. With regard to the 
second factor, the Authority found it unclear from precedent whether 
and/or how accretion principles are or should be applied to determine 
whether the appropriateness of bargaining units remains unimpaired as a 
result of a reorganization. The Authority questioned whether the 
continued appropriateness of a unit must be established before a 
finding is made as to whether other employees have accreted into it, or 
whether these determinations should be made in another way or sequence. 
With regard to the third DOE factor, the Authority found an absence of 
precedent on the issue of whether the filing of an RA petition raises a 
QCR so as to preclude a finding of successorship.
    The Authority directed the parties to file briefs addressing the 
following questions:
    1. In considering the second factor for determining successorship 
set forth in DOE, what criteria should be applied to determine whether 
appropriateness of a bargaining unit remains unimpaired as a result of 
a reorganization when accretion is claimed? How do those criteria apply 
in this case?
    2. In considering the third factor for determining successorship 
set forth in DOE, does the filing of an RA petition questioning the 
continued appropriateness of an existing bargaining unit raise a QCR so 
as to preclude a finding that a successor relationship exists between 
an established bargaining unit and the gaining agency?
    3. Should the factors for determining successorship set forth in 
DOE be modified or clarified in any other respect?
    As these matters are likely to be of concern to agencies, labor 
organizations, and other interested persons, the Authority finds it 
appropriate to provide for the filing of amicus briefs addressing any 
or all of the aforementioned issues.

    Dated: November 17, 1994.

    For the Authority.
Alicia N. Columna,
Director, Case Control Office.
[FR Doc. 94-28817 Filed 11-21-94; 8:45 am]
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