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13:0039(7)UC
The decision of the Authority follows:
13 FLRA No. 7
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Agency
and
NATIONAL TREASURY EMPLOYEES UNION
Petitioner
Case No. 3-UC-26
DECISION AND ORDER
Upon a petition duly filed with the Federal Labor Relations Authority
under section 7112(d) 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 contentions of the
parties, the Authority finds:
The Petitioner, National Treasury Employees Union (NTEU), filed the
instant petition seeking to consolidate the five units within the
Agency, Department of Health and Human Services (HHS), for which it is
the exclusive representative. /1/ The units presently represented by
NTEU and covered by the petition are set forth in the Appendix.
NTEU contends that the petition should be granted because, pursuant
to the criteria set out in section 7112(a)(1) of the Statute, /2/ the
employees in the existing units together possess a clear and
identifiable community of interest since they share a common mission and
job classifications and are subject to common labor relations policies
and practices. Further, it is argued that consolidation would promote
effective dealings and efficiency of Agency operations by raising the
level of collective bargaining to allow negotiations with the office of
the Assistant Secretary for Personnel Administration (ASPER) which
exercises real labor relations authority, and by eliminating redundant
bargaining in the existing units.
The Agency contends that the employees sought do not share a clear
and identifiable community of interest, and that consolidation would be
counterproductive both to effective dealings and efficiency of Agency
operations. The Agency contends also that the proposed unit is based
solely on the extent to which the petitioning labor organization has
organized, a consideration proscribed by section 7112(b) of the Statute;
/3/ that the proposed unit would not ensure employees the fullest
freedom in exercising the rights guaranteed by the Statute as required
in section 7112(a)(1); and that the proposed unit would not broaden the
scope of bargaining or reduce fragmentation.
HHS is administratively divided into several Principal Operating
Components (POCs), each with its own mission and nationwide in scope.
The POCs are the Social Security Administration (SSA); Health Care
Financing Administration (HCFA); Public Health Service (PHS), which
includes the Food and Drug Administration (FDA); and Office of Human
Development Services (OHDS). Further, the Agency is administratively
headed and serviced by the Office of the Secretary (OS), which includes
the Offices of Civil Rights, General Counsel, Inspector General,
Personnel, and Refugee Settlement. Line management authority, including
personnel management, has been delegated to the four POC heads who
exercise their authority in the regions through POC regional officials.
In addition to its administrative division along functional lines,
HHS is divided geographically into a headquarters in Washington, D.C.,
and ten regional offices which are further divided into field offices.
Employees of each POC, and OS employees, are found in each regional
office. Personnel administration authority is delegated to the
Principal Regional Officer (PRO) in each Region.
At the time of the hearing, approximately 97,082 employees of the
Agency were represented in some 147 certified bargaining units. Ten of
those units were designated as "regional office units" because each
included employees of more than one POC within a specific region,
although they did not necessarily include all eligible employees within
a given region. In the case of those ten regional office units, the PRO
is authorized to represent all regional officials in negotiations. In
addition, there are two nation-wide units within SSA which have
recognition at the level of the head of that POC. Within the ten
regions, there are no other units which cross POC lines.
The five units which the Petitioner seeks to consolidate contain
approximately 2,650 employees. Four of the five, with approximately
2,500 employees, are "regional office units" located in New York,
Atlanta, Kansas City and Seattle. The record discloses that none of
these is region-wide in nature. The fifth unit, with approximately 150
employees, is located in the Kansas City Region and is the only Food and
Drug Administration unit represented by NTEU. /4/ The regional office
units in New York, Atlanta, and Kansas City include both professional
and nonprofessional employees, as does the FDA unit, while the regional
office unit at Seattle is limited to nonprofessional employees. The
Atlanta and Kansas City units include FDA employees, but the New York
and Seattle units exclude them.
While employees in these five units share common job classifications,
the employees sought do not share common supervision; this is true even
in the two units located in the Kansas City Region. None of the units,
including the two in the Kansas City Region, share a common location.
Each Region has a "full service" personnel office. As a result,
day-to-day labor relations and collective bargaining authority rests at
the regional level, subject to general guidelines set by ASPER for merit
pay, performance appraisal systems and promotion plans. For example,
the regional personnel offices effectuate appointments, classifications,
training, promotions and transfers. Authority to determine
reductions-in-force affecting more than five employees, classification
appeals, and contract review is retained by ASPER.
In Department of Transportation, Washington, D.C., 5 FLRA No. 89
(1981), the Authority, in dismissing petitions to consolidate units,
noted that section 7112(a)(1) of the Statute requires any unit found
appropriate to conform to the three criteria established by that section
and held that those criteria applied as well to unit consolidation
proceedings pursuant to section 7112(d) of the Statute. /5/
With regard to the community of interest criterion set forth in
section 7112(a)(1), the Authority will consider the degree of
commonality and integration of the mission and function of the
components involved; the distribution of the employees involved
throughout the organizational and geographical components of the agency;
the degree of similarity of the occupational undertakings of the
employees in the proposed unit; and the locus and scope of the
personnel and labor relations authority and functions. Department of
the Navy, U.S. Marine Corps, 8 FLRA No. 4 (1982). Applying these
principles to the instant case, the Authority concludes that the
employees in the proposed consolidated unit do not share a clear and
identifiable community of interest separate and distinct from other
employees of the Agency. Thus, the proposed unit would be limited to
employees at only four of the Agency's ten regions. While the proposed
unit would cross POC lines and encompass employees in each of the four
POCs, it would not include significant numbers of employees in any POC
or any region. Rather, the resulting unit would include only about
2,650 of the Agency's more than 97,000 represented employees, and it
would exclude employees in every POC and every region who also share
common conditions of employment with those included. Accordingly, the
employees sought are not sufficiently well distributed throughout the
administrative and geographic structure of the Agency so as to
constitute a meaningful consolidated unit. /6/ In addition, the record
reveals that no transfers or interchange occur among the units that NTEU
seeks to consolidate, and there is no common immediate or second-level
supervision. Finally, it appears that conditions of employment differ
from region to region as a result of geographic dispersal and day-to-day
control of personnel and labor relations at the regional level.
Accordingly, the Authority finds that the proposed consolidated unit
is not appropriate, and will order that the petition be dismissed. /7/
ORDER
IT IS HEREBY ORDERED that the petition in Case No. 3-UC-26 be, and it
hereby is, dismissed. Issued, Washington, D.C., September 15, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX - Units Sought to Be Consolidated
Included: All GS and WG professional and nonprofessional employees
of the Department of Health, Education and Welfare, New York Regional
Office, Region II.
Excluded: Confidential employees, employees engaged in Federal
personnel work in other than a purely clerical capacity, management
officials, and supervisors as defined in the Statute and employees of
the Audit Agency.
Included: All GS and WG professional and nonprofessional employees
of the Regional Office, Region IV, Department of Health, Education and
Welfare, Atlanta, Georgia, including FDA District Offices.
Excluded: Management officials, supervisors, confidential employees,
employees engaged in Federal personnel work in other than a purely
clerical capacity, stay-in-school, temporary employees with appointments
of 90 days or less, employees of the Audit Agency and Division of
Personnel Security and employees of all other Field Offices, and the
Regional and Field Offices of the SSA Office of Quality Assurance.
Included: 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.
Excluded: All employees of SSA Office of Central Operations, all
employees of the SSA Office of Quality Assurance (Assessment) and the
SSA Office of Security and Program Integrity (Assessment), all HEW Audit
Agency employees, all employees of SSA Offices 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.
Included: All nonprofessional employees of the Regional Office of
the Department of Health, Education and Welfare, Region X, Seattle,
Washington.
Excluded: Professional employees, employees engaged in Federal
personnel work in other than a purely clerical capacity, management
officials, and supervisors as defined in the Act.
Included: All professional and nonprofessional General Schedule and
Wage Grade employees employed by the Regional Office and Field a Offices
of the U.S. Food and Drug Administration, Region VII, Kansas City,
Missouri.
Excluded: Management officials, supervisors and employees described
in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).
--------------- FOOTNOTES$ ---------------
/1/ All of these units were certified before the Department of
Health, Education and Welfare became the Department of Health and Human
Services.
/2/ 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/ Section 7112(b) provides in pertinent part:
. . . .
(b) A unit shall not be determined to be appropriate under this
section solely on the basis of the extent to which employees in
the proposed unit have organized . . . .
/4/ However, it is one of 18 units within FDA represented by a labor
organization. FDA employees are included within the Atlanta Regional
Office unit.
/5/ Section 7112(d) provides as follows:
(d) Two or more units which are in an agency and for which a
labor organization is the exclusive representative may, upon
petition by the agency or labor organization, be consolidated with
or without an election into a single larger unit if the Authority
considers the larger unit to be appropriate. The Authority shall
certify the labor organization as the exclusive representative of
the new larger unit.
/6/ See Department of Defense, U.S. Army, Corps of Engineers, 5 FLRA
No. 91 (1981).
/7/ Inasmuch as all three criteria of section 7112(a)(1) of the
Statute must be satisfied in order for the Authority to find that the
proposed consolidated unit is appropriate, and a failure to satisfy any
one of them must result in a finding that the unit sought is
inappropriate, see U.S. Army Training and Doctrine Command, 11 FLRA No.
28 (1983); Department of the Navy, Navy Publications and Printing
Service Branch Office, Vallejo, California, 10 FLRA No. 108 (1982);
Department of Transportation, Washington, D.C., 5 FLRA No. 89 (1981),
the Authority's finding that the unit sought herein fails to meet the
community of interest criterion makes it unnecessary to address the
other two criteria.