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12:0309(68)RO
The decision of the Authority follows:
12 FLRA No. 68
IMMIGRATION AND NATURALIZATION
SERVICE
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Petitioner
Case No. 3-RO-89
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed with the Federal Labor Relations Authority
under section 7111(b)(1) of the Federal Service Labor-Management
Relations Statute (the Statute), a hearing was held before a hearing
officer of the Authority. The Authority has reviewed the hearing
officer's rulings made at the hearing and finds that they are free from
prejudicial error. The rulings are hereby affirmed.
Upon the entire record in this case, including the parties'
contentions, the Authority finds: The Petitioner, American Federation
of Government Employees, AFL-CIO (AFGE), seeks an election in a
nationwide unit of all non-supervisory professional employees of the
Immigration and Naturalization Service (INS), excluding special inquiry
officers. /1/ INS contends that the petitioned for unit is not
appropriate because it does not meet the criteria set forth in section
7112(a)(1) of the Statute. /2/ More specifically, INS contends that the
employees sought do not share a community of interest separate and
distinct from other attorneys of the Department of Justice, and that
such unit would not promote effective dealings with, or efficiency of
the operations of, the agency involved.
INS is one of several Bureaus within the Department of Justice.
Under a Commissioner, who reports to the Attorney General, it is
primarily responsible for administering and enforcing the provisions of
the Immigration and Naturalization Act of 1952, as amended (the Act).
/3/ Structurally, INS is composed of a Central Office, located in
Washington, D.C.; 4 Regional Offices-- Northern, Eastern, Western,
Southern-- ; and 35 District Offices. /4/ Each of the Regional Offices
is headed by a Regional Commissioner, who reports directly to the
Commissioner of INS. Each District Office is managed by a District
Director who reports directly to the Regional Commissioner in charge of
that District. The Central Office has Enforcement, Examinations,
Management, and Operations Support offices, each headed by an Associate
Commissioner. In addition, the Central Office has an Office of the
General Counsel.
The petitioned-for unit consists primarily of attorneys, but also
includes accountants, economists, statisticians, architects and
engineers. There are approximately 240 employees in the unit sought, of
whom approximately 200 are attorneys. Attorney and non-attorney
professionals are located in the Central and Regional Offices whereas
only attorneys are assigned to the District Offices. AFGE exclusively
represents a nationwide unit of all (approximately 5300)
non-professional INS employees, as well as a unit of all (approximately
2000) non-professional employees assigned to Border Patrol Sectors,
service-wide. Additionally, as previously noted (supra n.1), the
special inquiry officers are exclusively represented in a separate
professional unit. Thus, the petitioned-for unit comprises all of the
potentially eligible employees within INS who are not already included
in existing units of exclusive recognition.
The non-attorney professionals are in the competitive service and
are, for the most part, employed in the Central Office. Attorney
professionals are in the excepted service and are, for the most part,
employed in the District Offices. The non-attorney professionals render
support services in the area of their expertise. For example,
accountants, who constitute the major segment of this group, perform
financial, accounting and bookkeeping functions in the Central and
Regional Offices. Attorneys are classified either as Trial Attorneys or
General Attorneys. The principal duty of a Trial Attorney is the
preparation and presentation of deportation and exclusion cases before
an Immigration Judge. The principal duties of a General Attorney
include preliminary examinations of individuals petitioning for
naturalization and the trial of naturalization cases before Federal and
State Courts.
Under a consolidation program established by the Department of
Justice in July 1980 in order to assure as much as possible that INS
attorneys are hired, classified, evaluated, promoted and disciplined
under standards essentially similar to those applicable to all other
attorneys in the Department of Justice, certain personnel functions
relating to these attorneys are reviewed and approved by the Associate
Deputy Attorney General (ADAG) in the Department of Justice. Thus, the
program requires that all attorneys hired by INS and the position
descriptions of all INS attorneys must be approved by the ADAG; all
appeals on grievances concerning performance evaluation must come to the
ADAG; and all recommendations for discipline in excess of 14 days must
be approved by the ADAG. However, the record also establishes that INS'
recommendations for hiring attorneys have never been disapproved; that
the position descriptions for attorneys are certified by the classifiers
in the Central Office; that the general personnel functions for
attorneys are handled by the Central Office in the same manner as for
non-attorney professionals; that the day-to-day direction of attorneys
is accomplished within INS' line-of-command authority; that labor
relations functions for attorneys, as well as for non-attorney
professionals, are handled by the Central Office; and that personnel
policies and general working conditions are basically the same for all
INS professionals.
Based on the foregoing, the Authority concludes that the
petitioned-for unit is appropriate. Thus, as noted above, all
professional employees are engaged in a common mission; are under the
supervision and direction of the Commissioner of INS; and are covered
by generally uniform personnel policies and practices, as well as common
labor relations policies. Under these circumstances, the Authority
concludes that the employees in the petitioned-for unit share a clear
and identifiable community of interest. Further, the Authority
concludes that a unit of all professional employees within the INS will
promote effective dealings and efficiency of agency operations noting
particularly that the record reflects a substantial degree of
centralization of personnel functions relating to the employees in the
unit sought. Accordingly, the Authority finds the following unit to be
appropriate for the purpose of exclusive recognition within the meaning
of the Statute.
All professional employees of the Immigration and
Naturalization Service, excluding special inquiry officers,
non-professional employees, management officials, supervisors,
employees engaged in Federal personnel work in other than a purely
clerical capacity, employees engaged in administering the Statute,
employees engaged in intelligence or other security work directly
affecting national security, and employees engaged in
investigation or audit functions related to the internal security
of the Activity, as described in section 7112(b)(2), (3), (4), (6)
and (7) of the Federal Service Labor-Management Relations Statute.
DIRECTION OF ELECTION
An election by secret ballot shall be conducted among employees in
the unit described above as soon as feasible. The appropriate Regional
Director shall supervise or conduct the election, as appropriate,
subject to the Authority's Rules and Regulations. Eligible to vote are
those in the voting group who were employed during the payroll period
immediately preceding the date below, including employees who did not
work during that period because they were out ill, on vacation or on
furlough, including those in the military service who appear in person
at the polls. Ineligible to vote are employees who have quit or were
discharged for cause since the designated payroll period and who have
not been rehired or reinstated before the election date. Those eligible
shall vote on whether or not they desire to be represented for the
purpose of exclusive recognition by the American Federation of
Government Employees, AFL-CIO. Issued, Washington, D.C., July 14, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Special inquiry officers or "Immigration Judges" have been
exclusively represented by the National Association of U.S. Immigration
Judges in a separate certified unit since May 1979.
/2/ Section 7112(a)(1) provides:
Sec. 7112. Determination of appropriate units for labor
organization representation.
(a)(1) The Authority shall determine the appropriateness of any
unit. The Authority shall determine in each case whether, in
order to ensure employees the fullest freedom in exercising the
rights guaranteed under this chapter, the appropriate unit should
be established on an agency, plant, installation, functional, or
other basis and shall determine any unit to be an appropriate unit
only if the determination will ensure a clear and identifiable
community of interest among the employees in the unit and will
promote effective dealings with, and efficiency of the operations
of, the agency involved.
/3/ 8 U.S.C. 1101, et seq.
/4/ In addition, there are 24 Border Patrol Sectors under the
Regional Offices. However, there are no professional employees assigned
to any Border Patrol Sector.