Introduction
Succesorship refers to a situation in which employees belonging to a certain bargaining unit in an organization transfer to another organization and its representing union retains its representative role in the new organization (Notestine, 2000, p.65). On the other hand, accretion refers to the addition of transferred employees to an existing bargaining unit due to changes in the operations or structure of an organization (Notestine, 2000, p.65).
In reorganizations that involve two or more units that are each represented by a union, there are disputes as to which union will be responsible for covering the combined groups, if the two combine to form one unit. The union involved in the merger lays claim to full representation of its employees, considering that the new employers is a successor entity. In contrast, the union covering the employees of the new employer claims full representation because the new employees become part of it.
The Federal Labor Relations Authority (FLRA), otherwise referred to as the Authority, solves such a dispute (Notestine, 2000, p.66). Transfer of employees between organizations calls for an in-depth evaluation by the Authority to determine whether the situation deserves an accretion or succesorship solution, if a dispute exists. Precisely, this means that the Authority determines whether the employees hold different interests that are distinct from the interests of employees who belonged to the gaining employer’s existing units (Notestine, 2000, p.68).
If this is the case and supposing that other obligatory requirements are fulfilled, then succesorship comes into play, and any petition on the unit’s accretion will result in dismissal. Otherwise, the Authority determines whether the employees involved in the transfer have been fully incorporated into any of the employer’s units. In solving the dispute, FLRA uses the 5 United States Code 7112(a) statute to determine a succession or accretion (Notestine, 2000, p.69).
Impact on bargaining units and impact on bargaining obligations
Impact on bargaining units refers to the effect experienced by different bargaining units involved in reorganizations. Reorganizations may result in either accretion or succesorship. In each of these situations, bargaining units are impacted differently. In case of an accretion, the bargaining unit of employees in a recipient organization becomes the bargaining unit. In the case of a succesorship, the bargaining unit of transferred employees is recognized by the new organization and retains its representative roles.
Impact on bargaining obligations refers to the shift in the power of collective bargaining by different units in reorganizations. Before the Authority passes a judgment during a reorganization petition, involved units and unions are supposed to fulfill certain requirements. They are expected to hold on to their previous contractual obligations, obey existing contracts and represent and bargain on behalf of employees.
Criteria established-5 U.S.C. 7112(a)
When a dispute concerning succesorship and accretion arises in the merger of unions representing different employee units, FLRA has the responsibility to decide and solve the dispute. The Authority gives a distinct analytic framework that settles representational matters and dispute in cases where reorganization or transfer of employees leads to a gridlock of what is right between succesorship and accretion.
Reorganizations and other interorganizational personnel changes may lead to disputes as to the suitable bargaining unit to represent the employees. Such disputes result in three possible arguments.
These are succesorship, in which the bargaining unit legally retains its representation within the new organization, accretion, in which new employees of a different bargaining unit are incorporated into an existing bargaining unit in their new organization (Notestine, 2000, p.71). The third argument is that their previous unit, owing to new changes, may not represent employees.
In solving the dispute, the Authority applies the criteria as stipulated in the 5 USC. 7112(a) laws. The Authority is responsible for determining the appropriate unit for representation under the statute. The Authority determines the best unit to ensure that employees possess full freedom to implement their legal rights.
An appropriate unit is then established on such basis as an agency or functional unit. It includes a distinct community of interest among the employees in the unit, and ensures that the operations of the agency on which it is based are efficient and serve the needs of the employees (Notestine, 2000, p.75).
A unit is determined to be appropriate based on fulfillment of several aspects by the authority. Precisely, a unit is considered appropriate if the involved employees posses a distinct community of interest that they all share in, if the unit promotes and encourages effective operations and legal dealings with the agency involved in representing the employees,and if the unit encourages efficiency in the operations of the agency on which it is based (Herman, 1998, p. 72).
The statute description of appropriate organization does not define the requirements of determining an appropriate unit and contains provisions for the presence of several appropriate units in an organization. In addition, the statute holds that if an organization has several appropriate units, then each should fulfill the criteria stipulated in section 7112(a). A unit is either appropriate or inappropriate based on the fulfillment or failure of fulfillment of the three aspects discussed below.
Determination of a common Community of interest
This is vital in determining whether employees can deal with the organization’s management as a unit (Herman, 1998, p. 74). In determining whether employees hold a common community of interest, several factors come into play for consideration.
Employees should belong to a common organizational structure and hold a common mission, employees should be under a common rule of command, they should be served by the same human resources office, and their duties should be related in some way (Herman, 1998, p. 76). In addition, the governing personnel and LMR policies should be the same and employees should all be working under the same conditions.
Determination of effective dealings
Presence of effective dealings is determined by the study of the relationship between the union and management. As such, several factors are considered. They include the presence and efficiency of precedent experience in bargaining power, the ability of the personnel office that will administer policies and the level of policy determination and setting by the involved agency (Herman, 1998, p. 79).
Determination of operations’ efficiency
In determining the efficiency of operations, the Authority evaluates the degree of beneficial relationship between a unit under scrutiny or determination process to the agency organization in question. Factors considered in the determination include the use of resources and the level of productivity by a unit, impact on agency costs by a unit, level of policy setting by an involved agency and the authority of the personnel office that will be in charge of executing the set policies (Herman, 1998, p. 80).
Determination of a bargaining unit
In some cases, an agency may encompass several bargaining units that may fail in the facilitation of operations conduct or exhibit ineffectiveness in representing employees. In such a case, an agency may establish a new unit structure, propose amendments on certification order and decide the union to represent the newly formed units. Multiple units that unite to form a single agency and that are represented by a common labor organization may be integrated into a sole unit.
This may happen with or without an election, and only if the Authority considers the larger single unit more effective that the multiple, smaller units (Herman, 1998, p. 82). If this happens, the Authority certifies the labor organization as the legal and recognized representative of the newly formed larger unit. Succesorship standard is developed to help in determining the fate of collective bargaining units and employee representatives in case an agency undergoes reorganization (Herman, 1998, p. 83).
In determining a bargaining unit, an agency may order for elections. An election is ordered by an agency in cases where several appropriate units exist, and only one is mandated to exercise bargaining rights on behalf of all other units (Herman, 1998, p. 84). If either succesorship or accretion is not determined for a reorganization, employee are given a chance by the agency to decide whether to be represented by a larger union formed by consolidating different units or a smaller union in a smaller unit.
Succesorship contractual clause
A succesorship contractual clause is a provision incorporated in labor contracts that usually involves an extension of honoring a contract between an employer and an employee in case the involved employee moves to another employer under any circumstance (Herman, 1998, p. 89).
Contracts that lack succesorship clauses involve a successor company and the transferor enters into an agreement referred to as a Novation Agreement. A Novation Agreement gives legal provisions for the replacement of a party, including all involved assets and liabilities, for another (Herman, 1998, p. 89). Even though the agreement may lack a provision for personnel working, the recipient party has to honor the contract.
Succesorship clauses serve several functions. During collective bargaining, unions demand for succesorship clauses to assure employees job security in cases where a collective bargaining agreement is deemed appropriate for employees (Herman, 1998, p. 91). In most instances, employers oppose these succesorship clauses.
If a succesorship clause is binding against a successor organization, then a successor organization is responsible for paying the employees in accordance with the provisions of the collective bargaining agreement for the whole period that the agreement remains viable (Herman, 1998, p. 93).
The enforceability of successor clauses depends on the legal definition of a successor organization for which the clause remains enforceable and valid. A new employer may act as a successor in certain situations and not others. As such, succesorship clauses have varying meaning meanings and applicability.
Succesorship contractual clauses are important in today’s unstable economy. A collective bargaining agreement serves to solve disputes between a union and an employer. Currently, labor laws have introduced provisions that allow employers to transfer or sell their employees and avoid certain obligations that result from the collective bargaining agreement (Notestine, 2000, p.87).
The succesorship doctrine was developed by the Supreme Court to improve commerce operations (Herman, 1998, p. 95). The court argued that a successor is not bound by the collective bargaining agreement. As such, a successor has no obligation to honor a predecessor’s contract with an employee. Generally, succesorship contractual clauses have been considered unbinding to a successor without the knowledge of a predecessor’s collective agreement with a former employee (Herman, 1998, p. 96).
In most cases, courts and the NLRB have preferred to apply contract law and not follow provisions of contractual clauses agreements in determining such cases. They argue that a party cannot be bound by a contract of which they had no knowledge of (Herman, 1998, p. 96).
Necessity for an election
Petitions for elections are important in reorganizations because they help in determining whether employees will be represented or not. An election is conducted if succesorship is not found and involves employees that belong to the transferred unit. An election can be conducted under several situations.
First, an election is conducted if a union is formed by different units, and some employees in new units were previously unrepresented (Notestine, 2000, p.90). However, there is a situation that does not warrant an election. If a new unit is made up of the majority of employees who transferred from a previous bargaining unit, then an election is not important. There is a simple majority requirement, and if a union does not meet the requirement, then an election is not conducted.
An election is conducted under several conditions. If a representation question or dispute exists and there is evidence, then an election is ordered. A representation issue exists only if 30-percent of members in a unit request for an election (Notestine, 2000, p.91). Relevant case: Bureau of Land Management, Sacramento, California & BLM, Ukiah District office, 53 FLRA 1417 (19980 (BLM).
Secondly, an election is conducted in a situation where involved employees belong to two different units that are seeking approval for determination and none of the unions involved is predominant (Notestine, 2000, p.93). In such a case, employees vote to determine which union will represent them. The election involving the votes of the employees determines the scope of a certain unit in its representation. Relevant case: U.S Army Aviation Missile Command, Redstone Arsenal, Alabama, 56 FLRA 126 (2000).
Thirdly, an election is ordered if different succesorship claims exist and if they support different, appropriate units (Notestine, 2000, p.95). In case a unit continues to be appropriate according to the criteria stipulated by 5 U.S.C. 7112(a), then the claim presented by the unit will be selected. This is so because the unit maintains the status quo based on the relationship between employees and the union, and based on unit structure. Relevant case: U.S. Department of the Navy, Commander, Naval Base, Norfolk, Virginia, 56 FLRA 328 (2000).
Automatic inclusion principle
Automatic inclusion principle is a principle that allows for the automatic inclusion of transferred employees into units in their new organization if the two involved units are appropriate and if their positions are within the provisions of a bargaining certificate (Notestine, 2000, p.113). Certain automatic inclusion principle does not warrant an amendment of a bargaining certificate to show inclusion of employees.
Employees are automatically included if their former unit and the new unit fulfill certain requirements that do not make the unit inappropriate (Notestine, 2000, p.113). These requirements include sharing of a common community of interest by employees, sharing of a common mission and working under same conditions.
However, some situations bring disputes because of their complexity. For example, it is difficult to decide whether unit consolidation between units that share a common mission but are made of both professional and non-professionals should follow the automatic inclusion principle.
However, past cases of such disputes had varied reactions as to the provisions of the automatic exclusion principle. Professional and nonprofessional employees belonging to different units have in the past been consolidated because the court ruled that they shared a common community of interest.
The exclusion of certain employees from certain units has been determined based on such aspect as their mission, community of interest and working conditions (Notestine, 2000, p.114). Exclusion is enforced because by consolidating certain units, then the formed unit becomes appropriate. Precisely, the automatic inclusion principle is only viable if the consolidated units do not affect the status of the single unit formed (Notestine, 2000, p.114).
If the single unit formed after consolidation of different unit remains appropriate, then the automatic inclusion principle applies and remains valid. In the case of a succesorship, automatic inclusion principle does not apply. Succesorship determines whether transferred employees who were previously represented by a different union retain their representation by their union (Notestine, 2000, p.116). This happens even though the bargaining certificate does not include such a provision.
Conclusion
Succesorship and accretion are two possible outcomes of reorganizations. Succesorship refers to a situation in which employees belonging to a certain bargaining unit in an organization transfer to another organization and its representing union retain its representative role in the new organization (Notestine, 2000, p.65). On the other hand, accretion refers to the addition of transferred employees to an existing bargaining unit due to changes in the operations or structure of an organization (Notestine, 2000, p.65).
The Federal Labor Relations Authority (FLRA) otherwise referred to as the Authority, is responsible for determining whether reorganization should lead to a succesorship or an accretion. The Authority gives a distinct analytic framework that settles representational matters and dispute in cases where reorganization or transfer of employees leads to a gridlock of what is right between succesorship and accretion.
In solving the dispute, the Authority applies the criteria as stipulated in the 5 USC. 7112 (a) laws. The criterion is applied in the determination of appropriate units for representation of employees in labor organizations (Herman, 1998, p. 64). Succesorship contractual clauses are very important in reorganizations.
A succesorship contractual clause is a provision incorporated in labor contracts that usually involves a continuation of the contract agreed upon between an employer and an employee in case the involved employee moves to another employer under any circumstance (Herman, 1998, p. 89). Petitions for elections are important in reorganizations because they help in determining whether employees will be represented or not.
An election is conducted if succesorship is not found and involves employees that belong to the transferred unit. Certain reorganizations involve the automatic inclusion of employees into appropriate units in the new organization. Automatic inclusion principle is a principle that allows for the automatic inclusion of transferred employees into units in their new organization if the two involved units are appropriate and if their positions are within the provisions of a bargaining certificate.
References
Herman, E. (1998). Collective Bargaining and Labor Relations. Indianapolis: Indian University.
Notestine, K. (2000). Fundamentals of Employment Law. New York: American bar