The Impact of Agency Reorganizations on the Status of a Bargaining Unit – The Successorship Doctrine

Recently the Washington Region of the Federal Labor Relations Authority issued a decision finding the AFGE Border Patrol Council a successor union after the Immigration and Naturalization Service left the Justice Department and became a part of the Department of Homeland Security. This in effect transferred the union’s certification from Justice to DHS without a new election. At the same time it ordered an election to determine who would represent the remainder of the employees in Customs and Border Protection (CBP). This decision will lead to one of three unions currently representing CBP employees as the sole representative of those employees.

Reorganizations occur frequently in the federal government. They can have from little or no impact on the status of a bargaining unit or have major impact including decertification of an exclusive representative. One of the first issues both labor and management should look at in a reorganization is the impact on the bargaining unit. If the entire recognized unit or a portion of the unit is moved to the new organization the first issue is whether the new organization is a successor employer. As a successor it is bound by the union certification and collective bargaining agreement in effect in the prior organization. Successorship occurs when a new employing entity is the successor to a previous one and an election is not necessary to determine representation rights of employees who were transferred to the successor.

There are three criteria for an employer to be a successor employer and a union to retain its status as the exclusive representative. Successorship occurs when:

(1) An entire unit or a portion thereof, is transferred and the transferred employees: (a) are in an appropriate bargaining unit, under section 7112(a)(1) of the Statute, 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 in the gaining entity; and

(3) It has not been demonstrated that an election is necessary.

The first factor sets out three requirements: at least a portion of a recognized unit must be transferred; the post-transfer unit must be appropriate; and transferred employees must constitute a majority of the new unit. This last factor is generally the basis for an election being held instead of a successorship being found. On some occasions there is more than one union representing employees in the new organization with none of the unions having a majority of the employees. In those cases the unions claiming representation must compete which each other and also with the possibility the employees will vote for no union. This is the case in the order of an election in CBP where three unions must compete to be the exclusive representative.

The second factor looks at the continuity of the mission of the organization and that the employees are performing substantially the same duties and functions under the new organization as under the previous one.

If there are substantial changes in the new organization’s operations such changes can defeat a claim of successorship.

The last factor provides that if an election must be held then successorship cannot be found. As noted previously the most reason for an election is if one union does not have a majority of the employees in the new entity.

Once successorship is found the new organization must follow the collective bargaining agreement the union had with the prior entity. The union is issued a new certification as the exclusive representative of the new entity. If an election is held the same rules apply to the election as if it were an election for a new unit.

This is intended as a brief overview of successorship. For more information or questions call Joseph Swerdzewski & Associates.