23:0464(67)CU - DOL and National Council of Field Labor Locals, AFGE; Labor Management Service Administration, DOL and NUCO, Independent; DOL and AFGE Local 12 -- 1986 FLRAdec RP
[ v23 p464 ]
23:0464(67)CU
The decision of the Authority follows:
23 FLRA No. 67
Case No. 3-CU-40017
UNITED STATES DEPARTMENT OF LABOR
Activity/Petitioner
and
NATIONAL COUNCIL OF FIELD LABOR
LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Labor Organization
Case No. 3-CU-40018
LABOR MANAGEMENT SERVICES
ADMINISTRATION, UNITED STATES
DEPARTMENT OF LABOR
Activity/Petitioner
and
NATIONAL UNION OF COMPLIANCE
OFFICERS, INDEPENDENT
Labor Organization
Case No. 3-CU-40019
UNITED STATES DEPARTMENT OF LABOR
Activity/Petitioner
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12, AFL-CIO
Labor Organization
DECISION AND ORDER
I. Statement of the Case
This consolidated case is before the Authority as a result of our
order granting the applications for review of the Regional Director's
Decision and Order on Petitions for Clarification of Unit filed by the
United States Department of Labor (DOL) and the National Union of
Compliance Officers, Independent (NUCO), and NUCO's request for a stay
in the above-named cases. In his Decision, the Regional Director
dismissed the petitions in Case Nos. 3-CU-40017 and 3-CU-40019 on the
basis that the DOL 1984 reorganization which occurred had no effect on
the employees involved, but granted the petition in Case No. 3-CU-40018
so as to exclude certain employees from the established unit pursuant to
section 7112(b)(4) of the Statute /1/ because they are engaged in
administering provisions contained in section 7120 of the Statute
concerning the standards of conduct for labor organizations. DOL and
NUCO contended that their applications for review should be granted on
the grounds that the Regional Director either departed from Authority
precedent or in the absence of Authority precedent made erroneous
factual determinations on substantial issues which prejudicially
affected their rights.
The Authority granted these applications for review on the basis that
it appeared that a compelling reason existed pursuant to the provisions
of section 2422.17(c)(1) of the Authority's Rules and Regulations. /2/
Supplementary briefs were filed by DOL, NUCO and American Federation of
Government Employees, Local 12, AFL-CIO (AFGE). The three Clarification
of Unit (CU) petitions under consideration arise out of DOL's 1984
reorganization in which the Labor Management Services Administration
(LMSA) was abolished and concern the effects of that reorganization on
the bargaining unit of LMSA employees represented by NUCO. The
Authority finds, contrary to the Regional Director, that the Office of
Pension and Welfare Benefit Programs (OPWBP) employees were severed from
and no longer share a community of interest with the other employees in
the NUCO unit and should be excluded therefrom. The Authority further
finds contrary to the Regional Director that pursuant to section
7135(a)(1) of the Statute, the previous unit represented by NUCO which
now includes only Office of Labor-Management Standards (OLMS) employees
continues to exist.
II. Background
A. Previous Recognitions
In 1962, AFGE was recognized as the exclusive representative of the
DOL employees in the Washington, D.C. Metropolitan area; and in 1965,
the National Council of Field Labor Locals, American Federation of
Government Employees, AFL-CIO (NCFLL) was recognized as the exclusive
representative of all eligible field employees of the DOL outside the
Washington, D.C. Metropolitan area. NUCO came into existence in the
early 1970's to represent employees of LMSA who otherwise could not have
been represented because of the restrictions contained in section 3(d)
of Executive Order 11491. /3/ NUCO was certified on October 18, 1972 as
the exclusive representative of the field employees of LMSA.
B. Reorganization and Change
Prior to the January 1984 DOL reorganization, LMSA administered the
OPWBP and Office of Labor Management Standards Enforcement (OLMSE)
programs, designated as the PW and LM tracks, respectively, through a
field organization of Regional, District and Resident offices. LMSA
investigators were assigned to either the PW or LM tracks. On January
20, 1984, the Secretary of Labor issued an Order separating the OPWBP or
Employee Retirement Income Security Act (ERISA) program from LMSA,
making OPWBP an independent activity (under the same name) which reports
directly to the Secretary. Thereafter, to complete the reorganization,
the Secretary on May 3, 1984, issued an Order which formally abolished
LMSA, and established the OLMS with its own Assistant Secretary to
replace OLMSE. As a result of the reorganization, the PW field
employees were incorporated into the OPWBP field organization and the
remaining LM field employees were incorporated into the OLMS field
organization. While all employees of OPWBP and OLMS at both the
headquarters and the field levels continued to be located in the same
place, the record indicates the work processes of the two components
were not integrated and that their employees did not interchange. The
effects of the reorganization were: to remove OPWBP from LMSA and make
it a separate independent activity; to abolish LMSA; and to
incorporate the remaining residual LM employees of LMSA into OLMS.
As a result of the reorganization, the pension program and PW
investigators were transferred intact to the new independent activity.
The primary job function of PW investigators, which was unchanged by the
reorganization, is to investigate allegations of fiduciary breaches of
title I of ERISA and certain sections of title 18 of the United States
Code. Thirty percent of the fiduciaries they investigate are union
officials, including some from federal sector unions, thirty percent of
their cases involve Taft-Hartley or joint plans, and five to seven
percent involve union plans.
Following the reorganization, the LM investigators of the OLMS
continue to be responsible, as before, for the investigation of several
types of cases arising under the Labor-Management Reporting and
Disclosure Act (LMRDA), including election cases, compliance audit cases
and embezzlement cases. They are also responsible for investigation of
all standards of conduct cases filed pursuant to section 7120 of the
Statute.
III. Regional Director's Determination
The Regional Director in his Decision and Order on Petitions for
Clarification of Unit found in Case Nos. 3-CU-40017 and 3-CU-40019 that
despite the reorganization which abolished LMSA and split employees
within the PW and LM tracks into two separate independent activities,
the field and headquarters employees of the OPWBP currently represented
by NUCO did not accrete into the units represented by NCFLL and AFGE,
but rather continued to be included in the pre-reorganization unit
represented by NUCO. He based his findings on the following factors:
(1) the record evidence revealed that the reorganization had little or
no effect on employees' day-to-day work, their overall working
conditions or their immediate supervision; (2) there was no evidence
provided by the Activity to demonstrate that these employees' accretion
into either the NCFLL or AFGE bargaining units would necessarily promote
effective dealings and efficiency of agency operations; and (3) there
is a long history of effective collective bargaining between LMSA and
NUCO, and DOL has not changed its handling of personnel or labor
relations matters for OPWBP investigators. /4/
In Case No. 3-CU-40018 the Regional Director found that the OLMS
investigators currently represented by NUCO should be excluded from that
unit pursuant to section 7112(b)(4) of the Statute because the OLMS
investigators are engaged in administering section 7120 of the Statute
(standards of conduct for labor organizations) which, according to
section 7112(b)(4) of the Statute, requires their exclusion from the
NUCO unit or any other appropriate unit of employees under the Statute.
The Regional Director rejected NUCO's argument that section 7135(a)(1)
of the Statute /5/ allowed the continuation of the unit of OLMS
investigators. He found that section 7135(a)(1) permitted continuation
only until the issue was raised, at which point the preexisting unit
would be evaluated to ascertain whether continued recognition was
consistent with the Statute. As he found that section 7112(b)(4) of the
Statute precluded OLMS investigators from being included in a unit
because they administer provisions of the Statute, he ordered them
excluded from the NUCO unit.
IV. Parties' Positions
DOL contends with regard to Case Nos. 3-CU-40017 and 3-CU-40019 that
the employees in OPWBP do not administer any provision of law relating
to labor-management relations within the meaning of section 7112(c) of
the Statute, /6/ and therefore should be included in the DOL's
bargaining units represented by NCFLL and AFGE. NUCO argues that as no
real change was brought about by the reorganization and the employees of
OPWBP are precluded from inclusion in units with other employees
pursuant to section 7112(c) of the Statute, the employees of OPWBP
should continue as a viable unit represented by NUCO. AFGE objects to
the consideration of any unit accretion issue raised by the DOL on the
basis that, at the time of the hearing, personnel aspects of the
reorganization creating the new OPWBP activity had not as yet been
implemented.
In Case No. 3-CU-40018, DOL agrees with the Regional Director that
the OLMS investigators should be excluded from the NUCO unit pursuant to
section 7112(b)(4) of the Statute as they administer provisions of the
Statute. NUCO contends that the Regional Director erred in ignoring the
express provisions of the "grandfather clause" in section 7135(a)(1) of
the Statute. While NUCO concedes that the OLMS investigators administer
section 7120 of the Statute, it argues that section 7135(a)(1) was
intended to protect representational relationships established before
the effective date of the Statute, and that if section 7112(b)(4) is
allowed to vitiate established units which predate the Statute, the
intent of section 7135(a)(1) to protect such units would not be
effectuated. AFGE agrees with NUCO concerning section 7135(a)(1) of the
Statute.
V. Analysis
The Regional Director's Decision with respect to the employees of the
OPWBP assumes that the DOL reorganization had only a minimal effect on
the OPWBP employees and NUCO's bargaining relationship. Based on
established precedent and the particular circumstances of the case, the
Authority disagrees with this assumption. We find that the employees of
OPWBP no longer share a community of interest with the other employees
in the existing unit represented by NUCO. We note particularly that the
OPWBP employees are now part of a new separate activity; are under
separate supervision and authority; and have little or no contact,
interchange or transfer with the other employees represented by NUCO.
We find that as a result of their removal from LMSA, the OPWBP employees
constitute a functionally distinct group of employees who no longer
share a community of interest with the employees of the existing NUCO
unit. Accordingly, the Authority will order that NUCO's certification
be clarified to exclude the OPWBP employees. See United States
Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 11
FLRA 591 (1983); Department of Defense, Department of the Army,
Lexington-Blue Grass Depot Activity, Lexington, Kentucky, 8 FLRA 699
(1982); and Department of the Treasury, Bureau of the Mint, 7 FLRA 136
(1981).
As to DOL's contention in Case Nos. 3-CU-40017 and 3-CU-40019 that
the OPWBP field and headquarters employees who had been represented by
NUCO in the pre-reorganization LMSA unit accreted into units represented
by NCFLL and AFGE, the Authority concludes that the OPWBP investigators
administer statutes relating to labor-management relations within the
meaning of section 7112(c) of the Statute and therefore cannot be
represented by NCFLL or AFGE. The OPWBP investigators investigate
allegations of fiduciary breaches of title I of ERISA, and a
considerable portion of their work involves review of joint
labor-management administered plans established pursuant to the
Labor-Management Relations Act, 29 U.S.C. Section 186(c). Approximately
thirty percent of OPWBP investigations concern union officials,
including some from federal sector unions. For these reasons, we find
that the OPWBP investigators administer statutes relating to
labor-management relations within the meaning of section 7112(c) of the
Statute and thus cannot be included in units represented by NCFLL or
AFGE.
In Case No. 4-CU-40018 the Regional Director found that section
7112(b)(4) of the Statute precluded the OLMS investigators from
remaining in the established unit. He interpreted section 7135(a)(1) to
permit the continuation of an existing unit only until an issue was
raised as to its continuance. Based on the legislative history of
section 7135(a)(1) and precedent, the Authority disagrees. The
legislative history of the Statute indicates the intent of section
7135(a)(1) as follows:
This subsection reflects the intention that successful on-going
labor-management relationships shall not be disputed by enactment
of title VII. Since the purpose of this title is principally to
encourage the development of successful labor-management programs,
it would have been inappropriate for this new legislation,
designed to encourage collective bargaining, to operate in such a
way as to thwart successful collective bargaining programs already
in existence. . . . /7/
To this end, consistent with section 7135(a)(1), we have required an
activity to continue to recognize units that were appropriate under
Executive Order 11491, as amended, where we found that a reorganization
did not substantially change the character and scope of the existing
units. Federal Aviation Administration, Aviation Standards National
Field Office, 15 FLRA 60 at 64 (1984).
In our view, the exclusion of OPWBP employees as a result of the
reorganization did not substantially change the scope and character of
the unit historically represented by NUCO, which now consists of all
OLMS employees. Thus, with the removal of the OPWBP function and
personnel and the subsequent abolishment of LMSA, the remaining former
LMSA employees were transferred intact into the OLMS which was
established to handle the function previously handled by OLMSE under
LMSA. OLMS, with minor changes in the field structure, continues to
function as did OLMSE prior to the reorganization of LMSA, and the
Assistant Secretary of Labor for OLMS occupies the position vacated by
the Assistant Secretary of Labor for LMSA. /8/
In sum, we find in Case No. 3-CU-40018, pursuant to section
7135(a)(1), that NUCO continues to represent a viable unit of former
LMSA employees certified in 1972 which currently includes only OLMS
employees. Accordingly, the DOL must continue to recognize and bargain
with NUCO as the exclusive representative of the remaining unit now
entitled OLMS.
VI. Conclusion
Based upon the findings above, we will order that the Clarification
of Unit (CU) petitions filed by DOL in Case Nos. 3-CU-40017 and
3-CU-40019 seeking to accrete the OPWBP field and headquarters employees
who had been represented by NUCO in the pre-reorganization LMSA unit
into units represented by NCFLL and AFGE be dismissed. Further, we will
order that NUCO's certification be clarified to exclude the OPWBP
employees. We will also order that the petition filed by DOL in Case
No. 3-CU-40018 be dismissed, as we have found that the remaining unit of
OLMS employees represented by NUCO continues to be a viable unit. /9/
ORDER
IT IS HEREBY ORDERED that the unit of employees at the United States
Department of Labor sought to be clarified, for which the National Union
of Compliance Officers, Independent, was certified as exclusive
representative on October 18, 1972, be, and it hereby is, clarified by
excluding from said unit the employees in the Office of Pension and
Welfare Benefit Programs.
IT IS FURTHER ORDERED that the petitions in Case Nos. 3-CU-40017, and
3-CU-40019 in all other aspects, and the petition in Case No. 3-CU-40018
be, and they hereby are, dismissed.
Issued, Washington, D.C., September 26, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Section 7112(b)(4) of the Statute provides:
Section 7112. Determination of appropriate units for Labor
organization representation
. . . . . . .
(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, nor shall a unit be determined
to be appropriate if it includes --
. . . . . . .
(4) an employee engaged in administering the provisions of this
chapter(.)
(2) Section 2422.17(c)(1) provides:
Section 2422.17. Application for review of a Decision and
Order of the Regional Director.
(c) The Authority may grant an application for review only
where it appears that compelling reasons exist therefor.
Accordingly, an application for review may be granted only upon
one or more of the following grounds:
(1) That a substantial question of law or policy is raised
because of (i) the absence of, or (ii) a departure from, Authority
precedent(.)
(3) Section 3(d) of Executive Order 11491 provided that:
Employees engaged in administering a labor management relations
law or this Order shall not be represented by a labor organization
which also represents other groups of employees under the law or
this Order, or which is affiliated directly or indirectly with an
organization which represents such a group of employees.
(4) Additionally, the Regional Director found in Case No. 3-CU-40019
that several employees in the Office of the Solicitor, Labor-Management
Laws Division, the Elections and Trusteeships and Technical Assistance
and Education Branches of the Technical Assistance and Disclosure
Section of OLMS were not engaged in administering the Statute within the
meaning of section 7112(b)(4). On this basis, he concluded that they
should remain in the unit represented by AFGE and dismissed that part of
the petition. No application for review was filed with respect to the
Regional Director's finding that these employees should remain in the
unit represented by AFGE. The action has become final and is not at
issue.
(5) Section 7135(a)(1) of the Statute provides:
Section 7135. Continuation of existing laws, recognitions,
agreements, and procedures
(a) Nothing contained in this chapter shall preclude --
(1) the renewal or continuation of an exclusive recognition,
certification of an exclusive representative, or a lawful
agreement between an agency and an exclusive representative of its
employees, which is entered into before the effective date of this
chapter(.)
(6) Section 7112(c) of the Statute provides:
Section 7112. Determination of appropriate units for labor
organization representation
. . . . . . .
(c) Any employee who is engaged in administering any provision
of law relating to labor-management relations may not be
represented by a labor organization --
(1) which represents the other individuals to whom such
provision applies; or
(2) which is affiliated directly or indirectly with an
organization which represents other individuals to whom such
provision applies.
(7) 124 Cong. Rec. 29, 188 (1978).
(8) While we recognize that section 7112(b)(4) of the Statute now
requires the exclusion of employees who administer "the provisions of
this chapter" from any unit determined to be appropriate under the
Statute, in this case we are merely determining that a unit previously
determined to be appropriate under Executive Order 11491, as amended,
has not been rendered inappropriate by virtue of the reorganization and
therefore remains viable by operation of section 7135(a)(1) of the
Statute. In our view, this conclusion is materially different from a
determination that such a unit would be appropriate under the Statute if
a petition to represent a new unit of OLMS employees had been filed.
The latter question is not before us in this case.
(9) In view of our decision, the Authority finds it unnecessary to
pass upon the Motions for Clarification of Stay Order filed by the
Regional Director and NUCO.