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[Federal Register: August 17, 1999 (Volume 64, Number 158)]


[Page 44733-44734]

From the Federal Register Online via GPO Access []





[FLRA Docket No. AT-RP-80005]


Notice of Opportunity To Submit Amicus Curiae Briefs in a 

Representation Proceeding Before the Federal Labor Relations Authority

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of the opportunity to file briefs as amici curiae in a 

proceeding before the Federal Labor Relations Authority in which the 

Authority is considering the standard to be applied to decide whether 

an election is necessary to determine representation of separate units 

of employees, represented by different labor organizations, when a 

reorganization results in transfer of the employees into one, new 



SUMMARY: The Federal Labor Relations Authority is providing an 

opportunity for all interested persons to file briefs as amici curiae 

on a significant issue arising in a case pending before the Authority. 

The Authority is considering the case pursuant to its responsibilities 

under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 

7101-7135 (1994 and Supp. III 1997) (the Statute) and its regulations, 

set forth at 5 CFR part 2422. The issue concerns how the Authority 

should resolve a representation case arising from an agency 

reorganization when separate units of employees, represented by 

different labor organizations, have been transferred into one, new 


DATES: Briefs submitted in response to this notice will be considered 

if received by mail or personal delivery in the Authority's Office of 

Case Control by 5 p.m. on September 16, 1999. Placing submissions in 

the mail by this deadline will not be sufficient. Extensions of time to 

submit briefs will not be granted.

FORMAT: All briefs shall be captioned ``Department of the Army, U.S. 

Army Aviation Missile Command (AMCOM), Redstone Arsenal, Alabama, Case 

Nos. AT-RP-80005 and AT-RP-80007.'' Briefs must contain separate, 

numbered topic headings corresponding to the three questions at the end 

of this notice. Parties must submit an original and four copies of each 

amicus brief, on 8\1/2\ by 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. 5 CFR 2429.27 (a) and (c). 

The designated representatives are: Steve Fesler, Deputy Director, 

Membership and Organization Department, American Federation of 

Government Employees, AFL-CIO, 80 F Street, NW., 7th Floor, Washington, 

DC 20001; John M. Paolino, Director of Collective Bargaining, National 

Federation of Federal Employees, 1016 16th Street, NW., Washington, DC 

20036; John C. Points, Jr., AMCOM Legal, U. S. Army Aviation and 

Missile Command, Redstone Arsenal, AL 35898; and Brenda M. Robinson, 

Regional Director, Federal Labor Relations Authority, Marquis Two 

Tower, Suite 701, 285 Peachtree Center Avenue, Atlanta, GA 30303-1270.

ADDRESSES: Mail or deliver briefs to Peter Constantine, Director, Case 

Control Office, Federal Labor Relations Authority, 607 14th Street, 

NW., Room 415, Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Peter Constantine, Director, Case 

Control Office, Federal Labor Relations Authority, (202) 482-6540.

SUPPLEMENTARY INFORMATION: On July 23, 1999, the Authority granted an 

application for review of the Regional Director's Decision and Order on 

Clarification of Units in Department of the Army, U.S. Army Aviation 

Missile Command (AMCOM), Redstone Arsenal, Alabama, Case Nos. AT-RP-

80005 and AT-RP-80007, 55 FLRA No. 108 (July 23, 1999). The Authority 

also denied AFGE Local 1858's request for a stay of the election, 

Member Wasserman dissenting on this aspect of the decision. A summary 

of that case follows. A copy of the Authority's complete decision may 

be obtained by telephoning Peter Constantine at the number listed 


A. Background

    American Federation of Government Employees, Local 1858, AFL-CIO 

(AFGE Local 1858), and National Federation of Federal Employees, Local 

405 (NFFE Local 405) are the exclusive representatives of units of 

employees at two activities that were disestablished as a result of a 

reorganization, and were transferred to a newly created entity known as 

Army Aviation Missile Command (AMCOM), located in Redstone Arsenal, 

Alabama. AFGE Local 1858 represented separate professional and 

nonprofessional units, totaling 4,711 employees, at the former U.S. 

Army Missile Command (MICOM), located at Redstone Arsenal, Alabama.

[[Page 44734]]

NFFE Local 405 represented a unit of professional and nonprofessional 

employees at the former Aviation Troop Command (ATCOM), St. Louis, 

Missouri, from which 1,384 employees accepted transfer.

    The issue is whether there is a question concerning representation 

regarding the former MICOM and ATCOM employees who have been 

transferred to AMCOM, or whether an election is unnecessary because of 

the relative number of employees in the respective former units, in 

which case all employees would be represented by the exclusive 

representative of the larger former unit.

B. The Regional Director's Decision

    The Regional Director found that AMCOM's mission is a combination 

of the missions of ATCOM and MICOM. She found that separate units 

consisting of the former MICOM and ATCOM employees are no longer 

appropriate. The Regional Director further found that AMCOM is not a 

successor employer, and that the former ATCOM employees did not accrete 

to the unit represented by AFGE Local 1858.

    The Regional Director directed an election among the former MICOM 

and ATCOM employees to determine whether they preferred to be 

represented by AFGE Local 1858, NFFE Local 405, or no labor 

organization. In directing the election, the Regional Director stated 

that the Authority has not defined when a group of employees 

represented by one labor organization will be ``sufficiently 

predominant'' over a number of employees in another unit so as to 

render unnecessary an election when the two groups are transferred to a 

new organization. The Regional Director then determined that in the 

circumstances, where AFGE Local 1858 represented 4,711 employees and 

NFFE Local 405 represented 1,384 employees, an election is necessary.

C. The Application for Review

    AFGE Local 1858 filed the application for review, contending that 

review of the regional director's decision is warranted under 5 CFR 

2422.31, because, among other things, there is an absence of precedent.

D. Questions on Which Briefs Are Solicited

    The Authority granted the application for review under 5 CFR 

2422.31(c). The Authority found that there is an absence of Authority 

precedent on two matters. First, it has not determined whether, in a 

situation where the possibility of accretion has not been recognized 

under Authority precedent because a reorganization has rendered 

inappropriate separate, preexisting bargaining units represented by 

different unions, an election is always necessary to certify one of 

them as exclusive representative in the new, appropriate unit. Second, 

if the Authority were to develop such doctrine through application of 

the ``sufficiently predominant'' or some other test, it would be 

necessary to determine how to assess when one group is ``sufficiently 

predominant'' to render an election unnecessary.

    The Authority directed the parties in the case to file briefs 

addressing the following questions:

    1. Should the Authority's ``successorship'' and/or ``accretion'' 

doctrine be modified to apply to situations where more than one unit of 

employees represented by different exclusive collective bargaining 

representatives are transferred to (a) a new entity with a new mission 

or (b) a new entity with a mission that is a combination of the 

missions of previously existing organizations? If so, why, and what 

should the modification be?

    2. Is a question concerning representation necessarily raised when 

more than one group of employees, represented by different labor 

organizations, are transferred to a newly established organization, and 

neither our current successorship doctrine nor our current accretion 

doctrine permits certification without an election? If not, is it 

consistent with the Statute and appropriate to apply the ``sufficiently 

predominant'' or some other doctrine to determine whether an election 

is not required?

    3. If Authority doctrine is modified, what guidelines, numerical or 

otherwise, should the Authority use to determine whether a group 

represented by one labor organization is sufficiently predominant to 

render an election unnecessary?

    As this matter 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 amicus briefs addressing these 


    Dated: August 12, 1999.

    For the Authority.

Peter Constantine,

Director of Case Control.

[FR Doc. 99-21279 Filed 8-16-99; 8:45 am]