[ v16 p586 ]
16:0586(85)CA
The decision of the Authority follows:
16 FLRA No. 85
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, WASHINGTON, D.C. AND
DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION VII, KANSAS CITY, MISSOURI
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 7-CA-30131
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondents had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel and the Charging Party filed exceptions to the Judge's
Decision, and the Respondents filed an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions /1/ and Recommended Order.
In affirming the Judge's decision that the Respondents did not
violate section 7116(a)(1), (5) and (8) of the Statute by terminating
the dues assignment of certain employees, the Authority agrees that the
employees in question ceased to be part of the certified bargaining unit
upon their transfer to the Office of the Inspector General. The record
clearly indicates that the employees in the newly created Office of
Inspector General, Office of Health Financing Integrity, are now part of
the new organization with a separate and distinct mission; that they
are under separate overall supervision and authority; and that they
share an area of competition for promotions and reductions-in-force
separate from that of the employees in the existing bargaining unit.
See United States Department of Health and Human Services, Region VI,
Dallas, Texas, 15 FLRA No. 161 (1984). As the employees ceased to be
part of the bargaining unit, terminations of dues withholdings were
proper and in accordance with the Statute. See Department of the Air
Force, Griffiss Air Force Base, Rome, New York, 12 FLRA No. 50 (1983),
set aside and remanded as to other matters sub nom. American Federation
of Government Employees, Local 2612 v. FLRA, 739 F.2d 87 (2d Cir. 1984),
Supplemental Decision and Order, 15 FLRA No. 188 (1984).
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-30131 be, and it
hereby is, dismissed.
Issued, Washington, D.C., November 27, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, WASHINGTON, DC AND
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION VII,
KANSAS CITY, MISSOURI
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No.: 7-CA-30131
Bruce R. Granger, Esquire
Susan Callahan, Esquire
Paul P. Cacioppo, Esquire
On Brief
For the Respondents
Mr. John R. Morefield
William Harness, Esquire
M. Kathryn Durham, Esquire By Brief
For the Charging Party
Daniel Minahan, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /2/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., concerns whether ten employees who had been
included in the bargaining unit remained in the bargaining unit after
their transfer to the Office of the Inspector General. Neither the
National Treasury Employees Union (hereinafter, also, referred to as
"NTEU" or the "Union"), which seeks to have the affected employees
declared included in the bargaining unit, notwithstanding their transfer
to the Office of the Inspector General, nor the Respondents, who assert
that the affected employees ceased to be part of the bargaining unit
upon their transfer from a Principal Operating Component of Region VII
(cf. Department of Health and Human Services and National Treasury
Employees Union, 13 FLRA No. 7, 13 FLRA 39 (1983), a unit clarification
case in which the Authority considered the administrative division of
HHS) to the Office of the Inspector General, which is not a component of
Region VII, saw fit to utilize the unit clarification procedure; but,
to the contrary, Respondents refused to recognize NTEU as the
representative of the affected employees after their transfer to the
Office of the Inspector General and terminated the dues assignments of
the five transferred employees who were dues-paying members of NTEU;
and NTEU filed unfair labor practice charges. This is not a
representation case and the bargaining unit as certified /3/ may not be
altered in an unfair labor practice proceeding, although unit
determinations concerning particular employees as being included or
excluded from bargaining units as certified may, and in this case must,
be resolved in an unfair labor practice proceeding. See, Internal
Revenue Service, Seattle District, et al., 12 FLRA No. 74, 12 FLRA 324
(1983); North Carolina Air National Guard, Charlotte, North Carolina, 4
FLRA No. 44, 4 FLRA 348 (1980); The Adjutant General - Georgia, Georgia
National Guard, Department of Defense, Atlanta, Georgia, 2 FLRA No. 92,
2 FLRA 712 (1980); U.S. Department of Energy, Western Area Power
Administration, Golden, Colorado and International Brotherhood of
Electrical Workers, AFL-CIO, Locals 640, 1245, 1759, 1959 and 2159, Case
No. 7-CA-1229, OALJ-82-119 (August 4, 1982). Rather, the issue is, more
narrowly, whether the affected employees remained in the certified
bargaining unit after their transfer to the Office of the Inspector
General.
This proceeding was initiated by a charge, filed on January 10, 1983
(G.C. Exh. 1(a)); a First Amended Charge, filed on January 31, 1983
(G.C. Exh. 1(b)); and a Second Amended Charge, filed on March 21, 1983
(G.C. Exh. 1(c)). The Complaint and Notice of Hearing issued on March
30, 1983 (G.C. Exh. 1(d)), and a hearing was scheduled for May 18, 1983;
by Order dated May 13, 1983 (G.C. Exh. 1(i)y the hearing was
indefinitely postponed; by Order dated June 24, 1983 (G.C. Exh. 1(k)),
the hearing was rescheduled for August 25, 1983, at a place to be
determined; and by Order dated June 30, 1983 (G.C. Exh. 1(1)), the
place of hearing was set, pursuant to which a hearing was duly held
before the undersigned on August 25, 1983, /4/ in Kansas City, Missouri.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved and were afforded
opportunity to present oral argument. At the close of the hearing,
September 26, 1983, was fixed as the date for mailing post-hearing
briefs, which time was subsequently extended, on timely Motion of NTEU
to which the other parties did not object, to October 13, 1983. General
Counsel, the Charging Party (NTEU) and Respondents each timely mailed an
excellent brief, received on or before October 17, 1983, which have been
carefully considered. Upon the basis of the entire record, /5/
including my observation of the witnesses and their demeanor, I make the
following findings and conclusions:
Findings
1. NTEU is the certified representative for the following unit:
"INCLUDING: All GS and WG professional and nonprofessional
employees of the Department of Health, Education and Welfare,
Region VII, in the greater Kansas City Metropolitan area.
"EXCLUDING: All employees of SSA Office of Central Operations,
all employees of the SSA Office of Quality Assurance (Assessment)
of the SSA Office of Security and Program Integrity (Assessment),
all HEW Audit Agency employees, all employees of SSA Office of
Appeals, all employees of SSA Field Offices, and all employees of
the Food and Drug Administration, employees engaged in Federal
personnel work in other than a purely clerical capacity, temporary
employees with an expected employment of 90 days or less, and
confidential employees, management officials, and supervisors as
defined in the Federal Service Labor Management Relations
Statute." (G.C. Exh. 1(o), Jt. Exh. 1; Certification dated June
15, 1979).
2. The parties entered into a collective bargaining agreement dated
October 21, 1981 (G.C. Exh. 1(o), Jt. Exh. 2), for a three year term.
Article 1, "Recognition and Coverage" defines the "employer" as "The
Department of Health and Human Services, Region VII", the unit of
exclusive representation was as set forth in the certification except:
(a) in describing the employees included, the name "Department of Health
and Human Services" was substituted for "Department of Health, Education
and Welfare" in the certification; and, (b) the exclusions were
modified as more fully set forth in n.2, supra. Article 51 governs "Due
Withholding" and Section 5E thereof provides for termination of dues
allotment, "Termination due to separation, transfer, or reassignment."
NTEU's dues are $4.70 per bi-weekly pay period (G.C. Exh. 1(o)).
3. On December 10, 1982, the national office of Health Care
Financing Administration (hereinafter, also, referred to as "HCFA") and
the Inspector General entered into a memorandum of understanding for the
transfer of certain functions, including personnel, which transfer had
been approved by the Secretary of Health and Human Services, from HCFA
to the Office of the Inspector General (G.C. Exh. 1(o), Jt. Exh. 5).
The transfer was implemented on January 9, 1983. In Kansas City,
thirteen of twenty-seven employees of HCFA's Division of Quality Control
were transferred to the Inspector General's Office of Health Financing
Integrity (G.C. Exh. 1(o)) (hereinafter, the Office of the Inspector
General, including the Office of Health Financing Integrity, is also,
referred to as "OIG"). The fourteen employees in the Division of
Quality Control who were not transferred to OIG were reassigned within
HCFA.
4. Prior to transfer of OIG, ten of the thirteen employees
transferred had been included in the bargaining unit and five of them
had been dues-paying members of NTEU.
5. On January 7, 1983, Respondent notified Mr. Lemuel Hester,
President of NTEU Chapter 217, that,
"It is management's position that employees of the Office of
the Inspector General are excluded from the bargaining unit. This
includes those employees identified to transfer from the Health
Care Financing Administration to the Office of the Inspector
General on January 9, 1983." (G.C. Exh. 1(o), Jt. Exh. 9).
This has been the consistent position of the Department since December
5, 1977, when Secretary Califano determined, " . . . that the Office of
the Inspector General (Department and Field) shall be excluded from
coverage of the Order (E.O. 11491, as amended) . . . ." (G.C. Exh. 1(o),
Jt. Exh. 7) and by memorandum, issued March 1, 1983, Inspector General
Richard P. Kusserow advised all supervisors that,
" . . . It is our position that OIG employees are excluded from
participation in collective bargaining activities by provisions of
the Civil Service Reform Act of 1978." (G.C. Exh. 1(o), Jt. Exh.
8).
6. Since January 9, 1983, Respondents have excluded the employees
transferred from the bargaining unit and have refused to recognize and
deal with NTEU as the exclusive representative of the employees
transferred to the OIG (G.C. Exh. 1(o)).
7. Since their transfer to the OIG on January 9, 1983, Respondents
have revoked and refused to honor written dues assignments from those
employees transferred to the OIG (G.C. Exh. 1(o)).
8. The Office of Inspector General was created by an act of Congress
enacted October 15, 1976, P.L. 94-505, (G.C. Exh. 1(o), Jt. Exh. 10).
No labor organization has ever been recognized or certified as the
exclusive representative of any employees of the Office of Inspector
General. (G.C. Exh. 1(o)).
9. The Inspector General is appointed by the President and confirmed
by the Senate and is subject to removal by the President only for cause
communicated "to both Houses of Congress"; "shall report to and be
under the general supervision of the Secretary . . . but shall not be
under the control of, or subject to supervision by, any other officer of
the Department" (42 U.S.C. 3522(a)); reports both to the Secretary and
to Congress (42 U.S.C. 3523, 3524); and has independent personnel
authority (42 U.S.C. 3525). The Office of Inspector General was made an
independent and objective unit in the Department by Congress, inter
alia, "to conduct and supervise audits and investigations relating to
programs and operations . . . ; to provide leadership and coordination
and recommend policies for activities designed (A) to promote economy
and efficiency in the administration of, and (B) to prevent and detect
fraud and abuse in, such programs and operations . . . ." (42 U.S.C.
3521).
10. Mr. Charles Gaul, Regional Labor Relations Officer for Region
VII, described the structure of Region VII which is divided into several
Principal Operating Components (POCs), each with its own mission and
nationwide in scope (see, also, Department of Health and Human Services,
13 FLRA No. 7, 13 FLRA 39, 40-41 (1983) wherein the Authority succinctly
described the administrative organization of HHS). The POCs are: Human
Development Services; Health Care Financing Administration; Public
Health Service, which includes the Food and Drug Administration; and
Social Security Administration (Tr. 38, 39, G.C. Exh. 1(o), Jt. Exh. 4).
The Regional Director is the representative of the Secretary in the
region (Principal Regional Officer) and, although not immediately
responsible for administration of the programs of the POCs, exercises a
coordinating function over the POCs and has been given authority to
enter into labor agreements on behalf of regional employees who work for
the various POCs (Tr. 39, G.C. Exh. 1(o), Jt. Exh. 2). The Regional
Director does not, however, have any authority over employees of OIG
(Tr. 39, 223, Res. Exh. 27); nor may OIG employees engage in program
operations (Tr. 199).
11. The Office of Audit (referred to as "Audit Agency employees" in
the Certification and in the recognition clause of the parties'
agreement) has been part of the OIG since the OIG was created; are
serviced by the Region VII personnel office pursuant to delegation of
authority by the IG; and were specifically excluded by the
certification and by the recognition clause of the agreement. The
Office of Investigations was part of the OIG from the inception of OIG
and its employees are serviced by the Office of the Assistant Secretary
for Personnel in Washington, DC; however, the Social Security Field
Integrity Staff, excluded from the bargaining unit, were transferred to
the OIG on November 28, 1982, and were serviced by the Region VII
personnel office. The Health Financing Integrity employees of OIG were
serviced by the Region VII personnel office; however, effective October
1, 1983, both the Social Security Field Integrity Staff employees and
the Health Financing Integrity employees will be serviced by the Office
of the Assistant Secretary for Personnel in Washington, DC (Res. Exh.
15, 16; Tr. 218-219, 260-261) (servicing of Office of Audit employees
will also be transferred to Washington but no date has been fixed. Tr.
219).
12. The organization of the OIG is shown on Respondent's Exhibit 1.
Under the Inspector General and the Deputy Inspector General are four
divisions: Office of Investigations; Office of Program Inspections;
Office of Health Financing Integrity; and Office of Audit, each headed
by an Assistant Inspector General. Mr. Don Nicholson is Assistant
Inspector General for Health Financing Integrity and Mr. James Francis
Patton is Deputy Assistant Inspector General for Health Financing
Integrity. Mr. Don McLaughlin is Regional Director of the Office of
Health Financing Integrity, Region VII and Mr. Jim Wolf is Deputy
Regional Director (G.C. Exh. 9).
13. On January 9, 1983, the employees transferred from Health Care
Financing Administration ceased to be employees of POCs of Region VII
and became employees of OIG. They immediately became subject to the
independent personnel authority of the Inspector General (Tr. 257-258);
immediately became part of a separate competitive area (Tr. 256);
immediately became subject to the OIG career board (Tr. 253-254); and
more important, their mission and function changed. As part of the OIG,
their function shifted to oversight and evaluation of Health Care
Financing Administration's performance (Tr. 133-134, 178-179, 191-193,
220, 319-320, 371); employee investigations became a new major duty;
they assumed a new primary duty under the Civil Monetary Penalties Act
(Tr. 290-292); as employees of OIG they not only acquired the statutory
independence given to the OIG, but also assumed special authority,
including the power to issue subpoenas and the authority to place
witnesses under oath (Tr. 221); and they immediately came under the
supervision and director of OIG. It is true that the immediate
supervisors and most of the transferred employees did not change, but
this was true only because their prior immediate supervisors, Messrs.
McLaughlin and Wolf, became, respectively, Regional Director and Deputy
Regional Director of the OIG Office of Health Financing Integrity.
14. Although the transferred employees continue to work in the same
area (Tr. 62, 390), on May 2, 1980, OIG placed in motion directions to
locate all Office of Investigation and Audit in contiguous OIG office
space (Res. Exh. 9) and Inspector General Kusserow testified that such
"co-location" will include all OIG employees; that the process has been
substantially achieved nationwide; that it is in the process of being
completed at Kansas City (Tr. 247); and Mr. McLaughlin testified that
GSA was expected to sign a contract about the first of September for
occupancy by OIG by December 1, 1983, in City Center Square, Kansas
City, which he estimated is six to eight blocks from their present
location (Tr. 390). As noted above, while the Region VII personnel
office provided administrative support for Audit and Health Financing
Integrity employees of the OIG, effective October 1, 1983, these
employees will be serviced by Washington, DC. The record shows that
such "servicing" was wholly ministerial and that all personnel
decisions, e.g., evaluations, promotions, job descriptions, etc., were
retained and performed by OIG. Inspector General Kusserow testified
that on May 19, 1983, Mr. Don Nicholson, Assistant Inspector General for
Health Financing Integrity, advised all of his Regional Directors that
position descriptions would be re-written to update them to accurately
reflect current duties and functions (Res. Exh. 6, Tr. 238-239) and a
new standardized position description has been written for a GS-12 (Res.
Exh. 7), implementation of which is pending approval of the Office of
Personnel Management (Tr. 239).
Conclusions
The issue in this case is whether the ten employees remained in the
certified bargaining unit after their transfer to the OIG. For reasons
set forth hereinafter I conclude that they did not, i.e., that upon
their transfer to the OIG they ceased to be part of the certified
bargaining unit.
The original charge quite candidly recognized that the employees in
question were, " . . . transferred to the Office of the Inspector
General (OIG), an office outside the bargaining unit" (G.C. Exh. 1(a))
and, although First and Second Amended Charges (G.C. Exhs. 1(b) and
(1)(c) and the Complaint (G.C. Exh. 1(d)) omit the concession that they
were "transferred to . . . an office outside the bargaining unit", the
record firmly, and without contradiction, establishes that they were
indeed transferred to an office, the OIG, outside the bargaining unit.
First, the OIG is an independent entity within the Department of Health
and Human Services, created by Congress specifically, as an independent
and objective unit to conduct and supervise audits and investigations
relating to programs and operations of the Department; to provide
leadership and coordination and recommend policies for activities
designed (A) to promote economy and efficiency in the administration of,
and (B) to prevent and detect fraud and abuse in, such programs and
operations; and to provide a means for keeping the Secretary and the
Congress fully and currently informed about problems and deficiencies
relating to the administration of such programs and operations and the
necessity for and progress of corrective actions. (42 U.S.C. 3521). To
insure the independence of the Inspector General, Congress further
specifically provided that he shall report to and be under the general
supervision of the Secretary, " . . . but shall not be under the control
of, or subject to supervision by, any other officer of the Department."
(42 U.S.C. 3522); and, inter alia, gave the Inspector General
independent personnel authority (42 U.S.C. 3525(a)(6)).
Second, the certification included only " . . . employees of . . .
Region VII . . . " and upon their transfer, on January 9, 1983, to the
OIG the employees in question ceased to be employees of Region VII or of
any Principal Operating Component (POC) of Region VII. I am fully aware
that each POC of Region VII is part of a POC which is nationwide in
scope; nevertheless, within the meaning of the Certification and the
parties' Agreement, employees of the POCs are employees of Region VII;
and the Regional Director of Region VII has been given authority to
enter into labor agreements on behalf of regional employees who work for
the various POCs. See, also, Department of Health and Human Services,
13 FLRA No. 7, 13 FLRA 39, 40-41 (1983). The Regional Director has no
authority whatever over employees of OIG (see, 42 U.S.C. 3522; Tr. 39,
209, Res. Exh. 27). On January 9, 1983, the employees in question
became employees of the OIG, which is wholly independent of Region VII;
were immediately subject to a competitive area wholly separate and apart
from Region VII; were immediately subject to supervision and control of
the OIG, which is wholly separate and independent from all other parts
of the Department; were immediately subject to the independent
personnel authority of the Inspector General; immediately became
subject to the OIG career board; and their mission and function
changed. As Mr. Patton stated, in the view of the Health Care Financing
Administration, "The role of the Office of the Inspector General is to
oversee HCFA. And HCFA's role was to oversee the contractors and
carriers." (Tr. 325). That is, as part of the OIG, their function
shifted to oversight and evaluation of Health Care Financing
Administration's performance; employee investigations became a new
major duty; they assumed a new primary duty under the Civil Monetary
Penalties Act; they acquired the statutory independence given to the
OIG, assumed new investigatory authority; including working with OIG's
Office of Investigation, and were given new "tools" to carry out their
investigatory duties, including the power to issue subpoenas and to
place witnesses under oath. Accordingly, upon transfer to the OIG they
ceased to be part of Region VII for any purpose and became, instead,
part of the wholly independent OIG. The fact that the Secretary,
pursuant to 42 U.S.C. 3525(c), provided office space in Region VII or
other equipment, supplies, facilities and services, does not affect in
any manner their statutory independence as part of the OIG. Moreover,
the office space and personnel services provided by Region VII has, or
shortly will, terminate and the transferred employees in question will
be serviced by the Personnel Office in Washington, DC and they will be
located in office space wholly removed from their present location in
space of Region VII. Therefore, because the transferred employees in
question ceased to be " . . . employees of . . . Region VII. . . . "
they no longer were included in the certified bargaining unit.
Third, by clear inference and analogy, the transferred employees in
question, as employees of OIG, are excluded by virtue of the nature of
their work and by the fact that they became upon transfer employees of
the Inspector General at the headquarters level. The Certification
excluded, inter alia, "all HEW (now HHS) Audit Agency employees". The
record shows that at the time of the certification, June 15, 1979, the
Audit Agency was, and had been since 1976, part of the OIG.
Consequently, although Mr. Hester, President of Chapter 217 testified
that "The Office of the Inspector General was not discussed at all" (Tr.
412) in the negotiations of the parties' 1981 Agreement, it is apparent
that action was taken to exclude one of the two parts of the OIG present
in Region VII, quite probably, in light of Mr. Hester's testimony, by
adopting the language of the certification without discussion. As to
the other part of the OIG present in Region VII, the Office of
Investigation (OI), the Charging Party, NTEU, states in its brief.
"OI employees were not excluded by the language of the
certification or the contract because they were already excluded
from the unit by virtue of their not being employees of HHS,
Kansas City. They were employees of the Inspector General at the
headquarters level." (NTEU Brief, p. 10).
Of course, the record shows that, on January 9, 1983, the employees in
question ceased to be employees of HHS, Kansas City, and, like OI
employees, became employees of the Inspector General at the headquarters
level. In actuality, this is more properly a reflection of their not
being part of the employee unit for bargaining purposes; but precisely
the same rational applies to all employees of the OIG as all are
employees of the Inspector General at the headquarters level.
The Certification also excluded, inter alia, "all employees of the
SSA Office of Quality Assurance (Assessment) and the SSA Office of
Security and Program Integrity (Assessment)" which in the Agreement
became "all employees of the SSA Office of Field Assessment". Thus, all
personnel, specifically: Audit and Investigations (OIG) and SS Quality
Assurance and Program Integrity (in the Agreement SS Field Assessment),
engaged in oversight and/or investigation of agency performance either
were not included in, or were specifically excluded from, the bargaining
unit. By analogy, the employees in question, when their mission and
function changed to oversight and investigation of Health Care Financing
Administration's performance, including employee investigations, were
excluded because the nature of their work is indistinguishable from the
nature of the work of the excluded employees.
As I find that the employees transferred to the OIG ceased to be part
of the bargaining unit on January 9, 1983, when their transfer became
effective, it is neither necessary nor appropriate in this unfair labor
practice complaint proceeding to decide whether Sec. 12(b)(7) of the
Statute precludes collective bargaining as to all employees of the OIG.
As noted at the outset, in a complaint proceeding the certification as
it exists is controlling and may not be changed, notwithstanding that,
as here, unit determinations, i.e., resolution of disputes concerning
the inclusion or exclusion of particular employees in the certified
unit, can and must be made. What can, or should, constitute an
appropriate bargaining unit are matters to be resolved in a unit
determination proceeding, not in a complaint proceeding. Nevertheless,
if I misconstrue the scope of the complaint proceeding and if, contrary
to my determination that the employees in question ceased to be part of
the bargaining unit as certified, upon their transfer to the OIG, the
transferred employees were not otherwise excluded, I would find that the
particular employees could not, pursuant to Sec. 12(b)(7), be included
in the bargaining unit. Sec. 12(b)(7) provides:
"(b) . . . nor shall a unit be determined to be appropriate if
it includes--
. . . .
"(7) any employee primarily engaged in investigation or audit
functions relating to the work of individuals employed by an
agency whose duties directly affect the internal security of the
agency, but only if the functions are undertaken to ensure that
the duties are discharged honestly and with integrity." (5 U.S.C.
7112(b)(7)).
Upon their transfer to the OIG's Office of Health Financing Integrity,
the duties of the employees in question became both "investigation" and
"audit" within the meaning of Sec. 12(b)(7). Their function shifted to
the oversight of the Health Care Financing Administration itself,
including oversight of employees to insure that their duties are
discharged honestly and with integrity. As a major new component of the
OIG, the Office of Health Financing Integrity was created "to be the
focal point of activities designed to control fraud, abuse and waste in
the Department's health care financing programs. . . . ", Statement of
Organization, Functions and Delegations of Authority, 48 Fed.Reg. 4919
(February 3, 1983) (G.C. Exh. 1(o), Jt. Exh. 14); and they assumed a
major new duty, that of employee investigation. The record is clear
that upon their transfer to the OIG the employees in question primarily
engaged in investigation or audit functions; that such functions relate
to the work of individuals whose duties directly affect the internal
security of the agency; and that such functions are undertaken to
ensure that the duties are discharged honestly and with integrity.
Accordingly, pursuant to Sec. 12(b)(7), they may not be included in the
certified bargaining unit. U.S. Department of Labor, Office of
Inspector General, Region I, Boston, Massachusetts, 7 FLRA No. 141, 7
FLRA 834 (1982). Unlike the Department of Labor Inspector General, the
OIG does not conduct external audits of contractors or carriers; but,
rather, oversees the Health Care Financing Administration, while Health
Care Financing Administration oversees the contractors and carriers. It
is true that the Authority in the Department of Labor case, supra,
referred to review of "employee information as travel vouchers, payroll
records, time and attendance records and GSA car vouchers", which,
certainly, the record does not show was addressed; but clearly the
Authority recognized the broader function, namely, that:
" . . . The employees in the Office of Audit are responsible
for the conduct of audits of Department of Labor programs and the
employees who run these programs, potentially auditing to uncover
employee fraud, misuse of funds, or malfeasance." (7 FLRA at 835).
Accordingly, the assertion of the General Counsel that,
" . . . the oversight of HCFA's program responsibilities which
may be carried on by Health Financing Integrity amounts to
internal audit functions within the meaning of Section
7112(b)(7)." (G.C. Brief, p. 27)
is rejected as both legally and factually untenable.
Having found that the employees in question ceased to be part of the
certified bargaining unit upon their transfer to the Office of the
Inspector General, Respondents did not violate Secs. 16(a)(5), or (1)
when, on and after January 9, 1983, they refused to recognize NTEU as
the representative of the transferred employees and, because the
provisions of the agreement providing for dues withholding ceased to
apply, Respondents did not violate Secs. 16(a)(8) or (1) of the Statute
by terminating the dues allotments. North Carolina Air National Guard,
Charlotte, North Carolina, 4 FLRA No. 44, 4 FLRA 348 (1980).
Accordingly, having found that Respondents did not violate the Statute
as charged, it is recommended that the Authority adopt the following:
ORDER
The Complaint in Case No. 7-CA-30131, and the same is hereby,
dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: November 21, 1983
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ The Authority finds it unnecessary to pass upon the Judge's
finding that the employees involved herein should be excluded from the
bargaining unit because they were involved in "investigation" and
"audit" duties within the meaning of section 7112(b)(7) of the Statute.
/2/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(5) will be referred to, simply,
as "Sec. 16(a)(5)."
/3/ I am aware that the certification (G.C. Exh. 1(o), Jt. Exh. 1),
and Recognition and Coverage clause of the Parties' collective
bargaining agreement (G.C. Exh. 1(o), Jt. Exh. 2, Art. 1, Section 1) are
slightly different. Thus, the certification excluded:
"All employees of SSA Office of Central Operation, all
employees of the SSA Office of Quality Assurance (Assessment) and
the SSA Office of Security and Program Integrity (Assessment) . .
. ." (Jt. Exh. 1) (The remaining portion being the same in each
document.)
On the other hand, the Recognition and Coverage clause excluded:
"All employees of the SSA Office of Central Operations, all
employees of the SSA Office of Field Assessment . . . ." Jt. Exh.
2, Art. 1, Section).
No party has relied on somewhat different exclusion of the Agreement in
contrast to the exclusion of the certification.
/4/ In actuality, by Order dated July 21, 1983 (G.C. Exh. 1(m)) the
hearing had been rescheduled from August 25, 1983, to August 26, 1983;
but by Order dated August 16, 1983, (G.C. Exh. 1(n)) was further
rescheduled from August 26, 1983, back to August 25, 1983.
/5/ Motion of General Counsel to Correct Transcript, to which no
objection or opposition was filed, which I find meritorious, is hereby
granted, except the proposed correction of page 224, line 5, which is
denied. The transcript is hereby corrected as set forth in the Appendix
hereto.