[Federal Register Volume 89, Number 136 (Tuesday, July 16, 2024)]
[Notices]
[Pages 57894-57895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15606]


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FEDERAL LABOR RELATIONS AUTHORITY

[FLRA Docket No. DE-RP-22-0028]


Notice of Opportunity To Submit Amici Curiae Briefs in a 
Representation Proceeding Pending Before the Federal Labor Relations 
Authority

AGENCY: Federal Labor Relations Authority.

ACTION: Notice.

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SUMMARY: The Federal Labor Relations Authority (Authority) provides an 
opportunity for all interested persons to submit briefs as amicus 
curiae on an issue arising in a case pending before the Authority. The 
issue concerns the manner in which the Authority, in applying its 
decision in Naval Facilities Engineering Service Center, Port Hueneme, 
California, 50 FLRA 363 (1995) (Port Hueneme), determines whether an 
election is necessary to determine representation of an appropriate 
bargaining unit following an agency reorganization. In Department of 
the Army, U.S. Army Aviation Missile Command, Redstone Arsenal, 
Alabama, 56 FLRA 126 (2000) (AMCOM), the Authority applied Port Hueneme 
to conclude that a union that represents more than 70 percent of the 
employees in a newly combined unit formerly represented by two or more 
unions is sufficiently predominant to render an election unnecessary to 
determine representation of the newly combined unit. The Authority 
seeks amici briefs addressing whether, in making this determination, 
the Federal Service Labor-Management Relations Statute (the Statute) 
allows the Authority to combine employees exclusively represented by an 
affiliate of a parent labor organization with employees exclusively 
represented by the parent organization or another affiliate of the 
parent organization. Because this issue is likely to be of concern to 
agencies, labor organizations, and other interested persons, the 
Authority finds it appropriate to provide for the filing of amici 
briefs addressing the questions set forth below.

DATES: To be considered, briefs must be received on or before August 
15, 2024.

ADDRESSES: Mail or deliver briefs to Erica Balkum, Chief, Office of 
Case Intake and Publication, Federal Labor Relations Authority, Docket 
Room, Suite 300, 1400 K Street NW, Washington, DC 20424-0001. For 
personal delivery of briefs, schedule an appointment at least one 
business day in advance by calling (771) 444-5805.

FOR FURTHER INFORMATION CONTACT: Erica Balkum, Chief, Office of Case 
Intake and Publication, Federal Labor Relations Authority, (771) 444-
5809.

SUPPLEMENTARY INFORMATION: On September 29, 2023, the Authority issued 
an order granting the application for review of the Regional Director's 
(RD's) decision and order (decision), and deferring action on the 
merits, in Defense Health Agency, El Paso Market, Case No. DE-RP-22-
0028 (DHA). A summary of the case follows.

1. Background and RD's Decision

    As part of a reorganization, the Department of Defense (DOD) 
established the Defense Health Agency (DHA) El Paso Market (El Paso 
Market), which consists of employees who previously worked for 
Department of the Army (Army) medical and dental treatment facilities 
in and around El Paso, Texas. Before these employees were transferred 
to the El Paso Market, the American Federation of Government Employees, 
Local 2516 (Local 2516 or Local) was certified as the exclusive 
representative of approximately 1,048 nonprofessional employees and 518 
professional employees; the American Federation of Government Employees 
(AFGE) was certified as the exclusive representative of approximately 
seventy-seven nonprofessional employees and one professional employee; 
and the National Federation of Federal Employees (NFFE) was certified 
as the exclusive representative of approximately eleven nonprofessional 
employees and eleven professional employees.\1\
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    \1\ NFFE has disclaimed interest in representing the transferred 
employees.
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    AFGE solicited, and Local 2516 provided, a designation of AFGE as 
the Local's representative for the purpose of filing a petition with 
the FLRA to clarify the transferred employees' representation.\2\ 
However, during the RD's investigation of the petition, Local 2516 
withdrew its designation of AFGE as its representative.
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    \2\ DHA filed a cross-petition, seeking a finding that the 
employees are in two separate, appropriate units--one professional, 
one nonprofessional--at DHA El Paso Market. AFGE did not object to 
the separate units.
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    Before the RD, AFGE argued that Authority precedent required the RD 
to combine the number of unit employees that AFGE and Local 2516 
represented

[[Page 57895]]

in the professional and non-professional units, respectively, with AFGE 
``remain[ing] the successor exclusive representative of'' that combined 
group of employees. Citing AMCOM, AFGE argued that Authority precedent 
``has treated a national union and its constituent locals as one 
union'' by focusing on the number of ``unions'' involved, rather than 
the number of ``exclusive representatives.'' AFGE claimed that because 
AFGE and Local 2516 are part of the same labor organization, the Region 
should treat them as the same entity for purposes of the petition.
    To resolve the petition, the RD applied the three-prong test the 
Authority set forth in Port Hueneme. As to the first prong, the RD 
found the transferred employees share a community of interest, the 
proposed professional and nonprofessional units would promote effective 
dealings and efficiency of operations, and the transferred employees 
represent a majority of the employees in the proposed units. The RD 
also found the second Port Hueneme prong met because post-transfer, the 
employees have a substantially similar mission as pre-transfer; and the 
transferred employees have the same, or substantially similar, job 
titles, position descriptions, and other general conditions of 
employment as they had before the transfer.
    As to the third Port Hueneme prong, the RD found that Local 2516 
represented approximately ninety-two percent of the nonprofessional 
employees and ninety-eight percent of the professional employees. 
Therefore, the RD concluded Local 2516 was sufficiently predominant 
with regard to both units, rendering it unnecessary to conduct 
elections to determine the units' exclusive representatives. In 
reaching this conclusion, the RD rejected AFGE's argument that it 
should be treated as the same labor organization as Local 2516 for 
purposes of resolving the petitions. Specifically, the RD rejected 
AFGE's argument that AMCOM focused on the number of ``unions'' 
involved, and not the number of ``exclusive representatives,'' in 
determining whether a union was sufficiently predominant. The RD 
further noted that Local 2516 ``vehemently object[ed]'' to AFGE's 
assertion that AFGE and Local 2516 should be treated as one entity for 
the purposes of the petition.
    Based on these findings, the RD concluded that: (1) DHA, El Paso 
Market is the transferred employees' successor employer; (2) the 
transferred employees are in two appropriate units--one professional, 
one nonprofessional--under section 7112(a) of the Statute; and (3) 
Local 2516 is the exclusive representative of those units.

2. Application for Review

    In an application for review of the RD's decision, AFGE argued that 
the RD failed to follow Authority precedent; the RD's decision raises 
an issue for which there is an absence of precedent; and the RD 
committed prejudicial procedural errors. AFGE contends the RD erred by 
treating AFGE and Local 2516 as separate unions for the purpose of 
determining who would represent the successor bargaining units. 
According to AFGE, both AMCOM and the Statute support treating AFGE and 
Local 2516 as one ``union'' or ``labor organization'' for purposes of 
applying Port Hueneme's third prong.

3. Questions on Which Briefs Are Solicited

    In DHA, the Authority issued an unpublished order dated September 
29, 2023 and concluded, upon preliminary review of the record, that 
AFGE's application raised issues warranting further review. The 
Authority deferred action on the application's merits. In order to 
assist with such action, the Authority now solicits additional briefs.
    As noted above, when applying the third prong of the Port Hueneme 
test to determine whether it has been demonstrated that an election is 
necessary, the Authority has held that a union that represents more 
than 70 percent of the employees in a newly combined unit formerly 
represented by two or more unions is sufficiently predominant to render 
an election unnecessary. AMCOM, 56 FLRA at 131.
    The Authority directs the parties, and invites all interested 
persons, to file briefs addressing the following questions:

    1. For purposes of assessing whether a union represents more 
than 70 percent of the employees, does the Statute allow the 
Authority to combine employees exclusively represented by an 
affiliate of a parent labor organization with employees exclusively 
represented by the parent organization or another affiliate of the 
parent organization?
    2. If the answer to Question 1 is yes and the combined employees 
represented by related entities are more than 70 percent of the 
employees in a newly combined unit, then which of the related 
entities becomes the certified exclusive representative?
    3. Does the answer to either of these questions depend on 
whether the affiliate(s) have designated the parent organization to 
act as their representative for successorship proceedings?
    For purposes of addressing these questions, the term ``parent 
organization'' should be interpreted to mean the national or 
international union with which a subsidiary union, acting as a 
bargaining unit's exclusive representative, is affiliated.

4. Required Format for Briefs

    All briefs shall be captioned ``Defense Health Agency, El Paso 
Market, Case No. DE-RP-22-0028.'' Briefs shall contain separate 
headings for each issue covered. Interested persons must submit an 
original of each amicus brief, with any enclosures, on 8\1/2\ x 11 inch 
paper. Briefs must include a signed and dated statement of service that 
complies with the Authority's Regulations showing service of one copy 
of the brief on all counsel of record or other designated 
representatives as well as the Federal Labor Relations Authority 
Regional Director involved in this case. 5 CFR 2429.27. Accordingly, 
briefs must be served on: Jennifer Giambastiani, Chief, Labor and 
Employment Law Branch, Defense Health Agency, Office of the General 
Counsel, 7700 Arlington Blvd., Falls Church, VA 22042; Sam Romirowsky, 
Labor Management Employee Relations, Defense Health Agency, Human 
Capital Division, 7700 Arlington Blvd., Falls Church, VA 22042; Felicia 
Sharp, Legal Administrative Specialist, Defense Health Agency, Office 
of the General Counsel, 7700 Arlington Blvd., Falls Church, VA 22042; 
Jessica Clarke, Assistant General Counsel, Office of the General 
Counsel American Federation of Government Employees, 80 F Street NW, 
Washington, DC 2000l; Julian Patrick, President, AFGE Local 2516, 3135 
Forney Ln., El Paso, TX 79935; and Timothy Sullivan, Regional Director, 
Denver Regional Office, Federal Labor Relations Authority, 1244 Speer 
Blvd., Suite 446, Denver, CO 80204. Interested persons may obtain 
copies of the Authority's decision granting the application for review 
in this case by contacting Erica Balkum, Chief, Office of Case Intake 
and Publication, Federal Labor Relations Authority, (771) 444-5809.

    Dated: July 11, 2024.
Thomas Tso,
Solicitor and Federal Register Liaison, Federal Labor Relations 
Authority.
[FR Doc. 2024-15606 Filed 7-15-24; 8:45 am]
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