[ v11 p59 ]
11:0059(21)UC
The decision of the Authority follows:
11 FLRA No. 21
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, /1/ OFFICE
OF THE SECRETARY
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Petitioner
Assistant Secretary
Case No. 22-09477(UC)
DECISION AND ORDER ON REMAND
This matter is before the Authority as a result of an Order of the
United States District Court for the District of Columbia /2/ directing
the Authority to vacate its decision previously issued herein, /3/ and
to reopen the record to reconsider the petition filed by American
Federation of Government Employees, AFL-CIO (AFGE) under Executive Order
11491, as amended. Pursuant to the Court's Order, on August 5, 1981 the
Authority vacated the previous decision, ordered that the case be
reopened, and remanded the case to the Regional Director for further
processing. Thereafter, the hearing was reopened for the purpose of
allowing the parties to submit evidence regarding the effect of the
Department of Education Reorganization Act on the appropriateness of the
petition, as required by the Court's Order. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Authority finds: AFGE filed
the instant petition seeking to consolidate eight units represented by
seven different AFGE locals within the Department of Health, Education
and Welfare (HEW), in the administrative subdivision known as the Office
of the Secretary (OS) nationwide. Thereafter, HEW was reorganized into
the Department of Health and Human Services (HHS) and the separate
Department of Education, and the petition was amended to encompass only
employees of the renamed Agency, HHS. During the course of the reopened
hearing, the petition was amended in two respects. A unit of employees
in the Office of the Secretary, Office of Civil Rights, located at
Cleveland, Ohio, was removed from the petition since all members of that
unit (together with approximately 60 percent of the Office of Civil
Rights employees nationwide) had been transferred to the Department of
Education. The petition was also amended to include a unit which had
recently been certified, composed of employees in HHS' Office of the
Secretary, Office of the General Counsel, located in Baltimore,
Maryland. Thus, the consolidated unit which AFGE seeks to represent
consists of eight units currently represented by its locals, including
employees in HHS' Office of the Secretary.
The Agency contends that the consolidated unit sought does not
satisfy the criteria for appropriateness set forth in Executive Order
11491, as amended. /4/ Specifically, the Agency contends that the
criteria set forth in section 10(b) of the Executive Order /5/ are not
satisfied herein because there is no community of interest among the
employees sought in that they have different missions, supervision and
jobs, and are geographically dispersed across the nation; and effective
dealings as well as efficiency of agency operations would not be served
by consolidation since relevant authority has been delegated among the
existing bargaining levels, there is no centralized labor relations
operational activity or direction, and an artificial locus of bargaining
would result from consolidation.
The Petitioner contends that the employees within the petitioned for
consolidated unit share a community of interest because of their common
supervision by the Secretary of HHS, who has ultimate authority to
establish common personnel and labor relations policies and conditions,
and because they have similar working conditions. AFGE further argues
that effective dealings would be enhanced by the consolidation because
ultimate authority is vested in the Secretary, and that consolidation
would promote efficiency of agency operations since it would be
cost-effective, promote consistency and uniformity in negotiations and
contract administration, and promote predictability in budgeting and
manpower planning relative to negotiations.
The Department of Health and Human Services is a cabinet-level agency
which was created when the Department of Health, Education and Welfare
was reorganized. Administratively, the Agency is composed of the Office
of the Secretary (OS) and several "operational divisions." The OS is a
staff organization which provides support and guidance to the Secretary.
It includes, inter alia, the Office of General Counsel and the Office
of Civil Rights. The operational divisions are: Office of Human
Development Services; Public Health Service; Health Care Financing
Administration; and Social Security Administration. The record reveals
that, because of the historic evolution of the Agency, the Office of
Human Development Services is administratively part of OS, but the
remaining operational divisions are separate administrative entities.
The Agency is geographically divided into a headquarters office in
Washington, D.C., and ten principal regional offices. The Petitioner
seeks to consolidate a unit of nonprofessional employees at
headquarters, the aforementioned unit of Office of General Counsel
employees located in Baltimore (but apparently part of headquarters
administratively), and six units which are composed of regional
employees. /6/ The regional units are located in Boston (Region I);
Philadelphia (Region III); Chicago (Region V); Denver (Region VIII)
(two units); and San Francisco (Region IX). Although the consolidated
unit sought is described as a unit of OS employees, and it appears that
the eight units which would be consolidated include all of the OS
employees currently represented by the Petitioner, the six Regional
units involved also include employees of the operational divisions.
Thus, the unit in Region I is composed of all nonprofessional employees
with only statutory exclusions; the units in Region III and Region V
include all Agency employees except certain branch or district office
Social Security Administration employees and Commissioned Officer Corps
members; the professional employee and nonprofessional employee units
in Region VIII specifically include operational division employees; and
the unit in Region IX is a mixed professional-nonprofessional unit with
certain specific exclusions. /7/ The eight units which AFGE seeks to
consolidate have a total complement of approximately 6,900 employees.
HHS has a total of about 150,000 employees; AFGE represents some 58
units, or over 82,000 of the HHS employees.
Due to the Agency's broadly defined mission, there has been
significant delegation of authority from the Secretary and the Office of
the Secretary to the operating divisions. The record reveals that
mission responsibility, management, and personnel and labor relations
authority have been delegated to the operational divisions, each of
which establishes terms and conditions of employment for its employees
and has a full regional organization, program staff and line management
to implement its mission and to perform personnel and labor relations
functions. The line of delegation is from the Secretary to the
operational divisions, and from each division to its separate regional
structure. The record also reveals that in each region where bargaining
units exist, authority to negotiate and to approve contracts has been
delegated to the bargaining level by the operational division. Within
OS, personnel and labor relations authority have been delegated to the
Assistant Secretary for Management and Budget (ASMB) and then to the
various offices within OS and the principal regional officers, but only,
in the latter instance, insofar as OS personnel is concerned.
Headquarters officials of the OS do not supervise personnel of the
operational divisions either in headquarters or in the regions.
Regional OS officials, such as the principal regional officers, do not
supervise personnel of the operational divisions. Interchange of
employees among the eight units which AFGE seeks to consolidate is
minimal. When labor relations issues or questions arise at the regional
level of exclusive recognition, they are referred through operational
division channels and the Agency-wide Office of the Assistant Secretary
for Personnel Administration; IS involvement through the ASMB is
minimal.
Finally, the record reveals that the governmental reorganization
which resulted in the establishment of a separate Department of
Education had little effect on the unit sought herein, except for the
disappearance of the Office of Civil Rights unit at Cleveland, mentioned
above, since almost all of the employees who were transferred to the new
Department had been employees of a separate operational division which
was as autonomous as those described above, and few of these employees
were in the units which AFGE seeks to consolidate herein.
In 1975, Executive Order 11491 was amended by Executive Order 11838
to establish a policy which would facilitate the consolidation of
existing exclusive bargaining units. In its Report and Recommendations
which accompanied the issuance of Executive Order 11838, the Federal
Labor Relations Council emphasized that "the creation of more
comprehensive units is a necessary evolutionary step in the development
of a program which meets the needs of the parties in the Federal
labor-management relations program and best serves the public interest."
The Report further stated that a "consolidated unit . . . must still
conform to the appropriate unit criteria contained in the Order" and
that "(i)n making his determination on the appropriateness of (a)
proposed consolidated unit, the Assistant Secretary should be mindful of
the policy of facilitating the consolidation of existing bargaining
units." /8/ Thereafter, in cases where the Assistant Secretary approved
proposed consolidated units, the Council denied review where the
Assistant Secretary had affirmatively found, based on the entire record,
that the proposed consolidated unit at issue satisfied each of the three
appropriate unit criteria specified in section 10(b) of the Order and
would promote a more comprehensive bargaining unit structure consistent
with the purposes of the Order. /9/ Similarly, the Authority has found
a petitioned for consolidated unit appropriate for the purpose of
exclusive recognition under the criteria of section 10(b) of the
Executive Order where the unit sought encompassed all the employees
within the agency represented by the petitioning labor organization;
the employees shared a common mission, job classifications, working
conditions, and personnel and labor relations policies; and personnel
and labor relations functions and policies were centrally established
and administered at the national level. /10/
In the instant case, by contrast, based on the particular facts and
circumstances presented, the Authority concludes that the petitioned for
consolidated unit does not satisfy the three criteria of section 10(b)
and therefore cannot be found appropriate. As noted above, while it
appears that the unit sought includes all OS employees represented by
AFGE, it would additionally include employees within the Agency's
operational divisions located in the six regional units who have widely
divergent missions. Further, there is no common supervisory thread
which runs through the proposed consolidated unit below the level of the
Secretary of the Agency. Moreover, responsibility for personnel and
labor relations matters has been delegated to the various regions and to
activities wherein recognized units exist, and such matters as hiring,
promotion, training, discipline and contract negotiation and
administration have been delegated to officials at the local level;
terms and conditions of employment which derive from common location,
such as parking, eating and rest facilities, quality of work space and
availability of services, are clearly absent among the units which AFGE
seeks to consolidate; and there is little or no interchange among the
units involved. Finally, the unit sought would be limited to less than
5 percent of the Agency's employees and to less than 10 percent of those
represented by the Petitioner within the Agency, and would be limited to
employees in only 5 of the 10 regions. Accordingly, the employees
sought are not sufficiently well distributed throughout the
administrative and geographic structure of the Agency to constitute a
meaningful consolidated unit. In view of all of the above, and most
particularly of the lack of common first-line supervision, mission,
interchange, personnel and labor relations policy, and terms and
conditions of employment, the Authority concludes that the employees
sought in the consolidated petition do not share a clear and
identifiable community of interest within the meaning of section 10(b)
of the Executive Order.
Similarly, it would not promote effective dealings in the instant
case to require Agency-wide negotiations for a unit consisting of less
than 5 per cent of the Agency's employees and limited to only 5 of the
10 regions. Such a unit would not be reflective of the Agency's
organizational structure, particularly since effective supervision,
personnel authority and control of labor relations have been delegated
to the local level. In these circumstances the Authority concludes that
neither effective dealings between the parties nor efficiency of Agency
operations would be promoted by the proposed unit.
With respect to the alternative consolidated unit sought by AFGE
consisting of six regional units located in five of the Agency's
regions, which unit would exclude the headquarters unit in Washington
and the newly certified unit at Baltimore, the record does not indicate
that the various employees in the regional units located in Boston,
Philadelphia, Chicago, Denver and San Francisco share any clear and
identifiable community of interest. Thus, as previously noted, the
regions consist of OS employees as well as employees of the various
operational divisions, each with different missions and covered by
different personnel policies and practices and matters affecting working
conditions. Similarly, such a unit would require the Agency to
negotiate at a level removed from the local level wherein its present
supervisory, and personnel and labor relations authority exists, and
removed from any level of the Agency's organizational structure except
that of the Secretary. Since half of the Agency's regions would be
excluded from such a level of negotiations, and the alternative
consolidated unit would consist of only approximately 3 per cent of the
Agency's employees, the Authority concludes that effective dealings and
efficiency of Agency operations would not be promoted by such a unit.
Accordingly, the Authority finds that neither the proposed
consolidated unit nor the alternative unit is appropriate, and will
order that the instant consolidation petition be dismissed.
ORDER
IT IS HEREBY ORDERED that the petition in Assistant Secretary Case
No. 22-09477(UC) be, and it hereby is, dismissed. Issued, Washington,
D.C., January 19, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ At the hearing, the petition was amended to reflect the change in
name of the Agency from Department of Health, Education and Welfare to
Department of Health and Human Services. That name change was
occasioned by a governmental reorganization which occurred subsequent to
the filing of the petition.
/2/ American Federation of Government Employees, AFL-CIO v. Haughton,
Civil Action No. 81-0168 (D.D.C. June 24, 1981).
/3/ Department of Health, Education and Welfare, Office of the
Secretary, 3 FLRA 866 (1980).
/4/ The petition herein was filed with the Assistant Secretary of
Labor for Labor-Management Relations pursuant to section 6 of Executive
Order 11491, as amended. As noted in the Authority's original decision,
3 FLRA 866 (1980), the functions of the Assistant Secretary of Labor for
Labor-Management Relations were transferred to the Authority, and the
Authority continues to be responsible for the performance of those
functions as provided by section 7135(b) of the Federal Service
Labor-Management Relations Statute (Statute). In conformity with
section 902(b) of the Civil Service Reform Act of 1978 (5 U.S.C. 7101 et
seq.), this case is governed solely by the provisions of E.O. 11491, as
amended, and as if the Statute had not been enacted.
/5/ Sec. 10. Exclusive recognition
. . . .
(b) A unit may be established on a plant or installation, craft,
functional, or other basis which will ensure a clear and identifiable
community of interest among the employees concerned and will promote
effective dealings and efficiency of agency operations. A unit shall
not be established solely on the basis of the extent to which employees
in the proposed unit have organized . . . .
/6/ Alternatively, AFGE would consolidate the six units it represents
in five regions, thereby excluding the OS employees at headquarters and
the Office of General Counsel employees at Baltimore.
/7/ See 3 FLRA 866 at 869-871.
/8/ Labor-Management Relations in the Federal Service (1975), at 35.
/9/ See, e.g., Education Division, Department of Health, Education,
and Welfare, Washington, D.C., A/SLMR No. 822, 6 FLRC 281 (Mar. 1,
1978).
/10/ Veterans Administration, Washington, D.C., 1 FLRA 457 (1979).