30:1229(136)RO - Labor, Pension and Welfare Benefits Administration and National Union of Compliance Officers -- 1988 FLRAdec RP

  30 FLRA NO. 136
  30 FLRA 1229

  29 JAN 1988


UNITED STATES DEPARTMENT
OF LABOR, PENSION AND WELFARE
BENEFITS ADMINISTRATION

                    Activity

      and

NATIONAL UNION OF COMPLIANCE
OFFICERS, INDEPENDENT

                     Labor Organization/Petitioner

Case No. 3-RO-70003

DECISION AND ORDER

     I. Statement of the Case

     This matter is before the Authority as a result of our order
granting the application for review of the Regional Director's
Decision and Director of Election filed by the United States
Department of Labor (the Agency) on behalf of the Pension and
Welfare Benefits Administration (PWBA or the Activity).

     The Regional Director concluded that the Labor
Organization/Petitioner, National Union of Compliance Officers,
Independent (the Union) was not precluded by sections 7112(b)(4)
and 7112(c) of the Federal Service Labor - Management Relations
Statute (the Statute) from representing a unit of PWBA employees.
The Regional Director otherwise found the unit appropriate for
the purpose of exclusive recognition under the Statute and
directed that an election be held among the employees in the unit
sought.

     We granted the Agency's application for review because
substantial questions of law or policy were raised over whether
section 7112(c) of the Statute prohibits the Union from
representing a unit of PWBA employees while it continues to
represent the unit of Office of Labor - Management Standards
(OLMS) employees. No supplementary briefs were filed.

     We conclude that the petitioned-for unit of PWBA employees
is not appropriate under the Statute. We also conclude that
section 7135(a)(1) of the Statute does not permit the
continuation of the Union's prior representation of PWBA
employees and that no successor relationship exists.

     II. Background

     A. Relevant Provisions of the Statute

     Three sections of the Statute are relevant to the issues in
this case. The first, section 7112, is entitled "Determination of
appropriate units for labororganization representation." It
provides, in relevant part:

     (a)(1) The Authority shall determine the appropriateness of
any unit. The Authority shall determine in each case whether, . .
. , the appropriate unit should be established on an agency,
plant, installation, functional, or other basis and shall
determine any unit to be appropriate 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.

     (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.

     (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 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. 

     The second relevant provision is section 7120, entitled
"Standards of conduct for labor organizations." As is discussed
in more detail in part III of this decision, section 7120
contains requirements which must be met by unions in order to
obtain and retain exclusive recognition status.

     The third provision is section 7135, entitled "Continuation
of existing laws, recognitions, agreements, and procedures."
Section 7135(a) provides:

     (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; or

     (2) the renewal, continuation, or initial according of
recognition for units of management officials or supervisors
represented by labor organizations which historically or
traditionally represent management officials or supervisors in
private industry and which hold exclusive recognition for units
of such officials or supervisors in any agency on the effective
date of this chapter.

     B. Authority's Decision in 23 FLRA  464

     A major reorganization within the Agency in 1984 resulted in
the dissolution of the Labor - Management Services Administration
(LMSA). LMSA's field employees were represented by the Union. The
reorganization established OLMS and PWBA. OLMS assumed
responsibility for enforcement of standards of conduct matters
under section 7120 of the Statute. PWBA was created to deal with
pension matters primarily under the Employee Retirement Income
Security Act (ERISA).

     In Department of Labor, 23 FLRA  464 (1986), the Authority
clarified the unit represented by the Union. The Authority found
that as a result of the reorganization, the PWBA (or pension)
employees were severed from and no longer shared a community of
interest with the other employees in the Union's unit.
Accordingly, the Authority excluded the pension
employees from the unit. The Authority further found that under
section 7135(a)(1) of the Statute, the Union continued to be the
exclusive representative of OLMS (or labor standards)
employees.

     C. The Union's Petition for the PWBA Employees

     The Union seeks to represent in a separate unit the pension
employees whom the Authority excluded from its unit in Department
of Labor. The Union contended in its petition that the pension
employees constitute an appropriate unit for the purpose of
exclusive recognition. Additionally, the Union argued that based
on its previous representation of the pension employees, its
status as exclusive representative of these employees continues
under section 7135(a)(1).

     The Activity contended that the claimed unit was
inappropriate for representation by the Union because sections
7112(b)(4) and 7112(c) of the Statute preclude representation of
both the labor standards and the pension employees by the same
labor organization. The Activity noted that the Union currently
represents OLMS employees, who administer section 7120 of the
Statute. Therefore, according to PWBA, its employees cannot be
represented by the Union because the provisions of section 7120
apply to PWBA employees.

     D. Regional Director's Decision

     The Regional Director found that section 7112(b)(4) of the
Statute does not preclude a separate unit of the pension
employees because (1) the OLMS unit continued under section
7135(a)(1), and (2) PWBA employees do not administer provisions
of the Statute. The Regional Director also found that section
7112(c) does not preclude the Union's representation of both OLMS
and PWBA employees because the pension employees administer
provisions of law pertaining to private sector pension plans
only, and (2) these provisions have no application to the labor
standards employees. On the basis of the Authority's decision in
Department of Labor, he rejected the Union's contention that
section 7135(a)(1) permitted it to continue prior representation
of the pension employees.

     III. Positions of the Parties

     The Agency contends that the Regional Director's decision is
inconsistent with section 7112(c) of the Statute. The
Agency maintains that the Regional Director failed to properly
consider the full effect of finding the PWBA unit appropriate for
representation by the Union. The Agency argues that allowing the
PWBA unit to be represented by the Union would cause the Union's
representation of the OLMS unit to violate section 7112(c)
because the OLMS employees administer section 7120, which applies
to the pension employees. The Agency agrees with the Regional
Director that section 7135(a)(1) does not entitle the Union to
continue its prior representation of the pension employees.

     The Union contends that the Regional Director properly
determined that section 7112(c) does not disqualify it from
representing the pension employees. The Union argues that
representing the PWBA unit would not cause its representation of
the OLMS unit to violate section 7112(c). The Union maintains
that section 7120 is not a "provision of law relating to
labor-management relations" within the meaning of section 7112(c)
because it relates to internal union affairs. Alternatively, the
Union argues that even if section 7120 is such a provision
relating to labor-management relations, section 7135(a) permits
it to continue to represent the PWBA employees. The Union
maintains that section 7135(a)(1) and the successor relationship
which exists in this case allow it to convert its prior status as
the exclusive representative of the pension employees into a
certification.

     IV. Analysis and Conclusions

     We conclude that a unit of the pension employees is not
appropriate for representation by the Union. We also conclude
that the Union is not entitled to represent the pension employees
under section 7135(a)(1) and that no successor relationship
exists. Accordingly, we will dismiss the Union's petition.

     The Regional Director considered section 7112(c) solely in
terms of the provisions of law administered by the pension
employees. Because the provisions administered by the. PWBA
employees do not apply to the OLMS employees, the Regional
Director concluded that there was no bar to the Union's
representation of both units of employees. In our view, the
Regional Director erred by considering section 7112(c) only, in
relation to the employees in the petitioned-for unit. We find
that the Regional Director also should have considered the effect
of section 7112 (c) on the unit of OLMS employees already
represented by the Union.

     Section 7112(c) of the Statute was enacted to prevent
conflicts of interest and appearances of conflicts of interest
which would result from represented employees administering labor
laws that apply to other employees represented by their union.
See Legistlative History of the Federal Service Labor -
Management Relations Statute, at 925. Section 7122(c) prevents
such conflicts such conflicts by prohibiting employees who
administer provisions of labor relations law from being
represented by any union who represents other employees to whom
such provisions apply.

     The Union currently represents OLMS employees. These
employees administer the provisions of section 7120 of the
Statute. Section 7120 sets forth the standards of conduct for
labor organizations in the Federal Government. The section
provides, among other things, that unions must be free from
"corrupt influences and influences opposed to basic democratic
principles." Section 7120 also contains requirements concerning a
union's preparation and filing of financial reports, bonding of
union officials, and compliance with trusteeship and election
standards. Section 7120 applies to the Union's representation of
OLMS employees and would apply to the Union's representation of
the PWBA employees.

     We find that section 7120 constitutes a "provision of law
relating to labor-management relations" within the meaning of
section 7112(c). We reject the Union's claim that section 7120 is
not a provision concerning "labor-management relations" because
it relates solely to internal union affairs. The Union is correct
in noting that section 7120 regulates the conduct of union
affairs. The section also provides that exclusive recognition may
be accorded only to a union which satisfies the requirements of
the section. Further, section 7120(f) provides for the Authority
to revoke exclusive recognition status if certain violations
occur. Therefore, a union must satisfy the requirements of
section 7120 to gain and retain exclusive recognition. Exclusive
recognition is the basis for labor-management relations.

     We find that if the Union were certified as the exclusive
representative of the pension employees, section 7112(c) would
prohibit the Union's continued representation of the labor
standards employees. Furthermore, this prohibition is not
precluded by section 7135(a)(1) of the Statute or by the
Authority's decision in Department of Labor. In Department of
Labor, 23 FLRA  at 472-73 & n.8, the Authority decided that the
reorganization did not substantially change the scope and
character of the Union's representation of the labor
standards employees and that, consequently, continued
representation of the OLMS employees remained viable by operation
of section 7135(a)(1). In contrast, we find that the character of
the Union's representation would be substantially changed if the
Union were certified as the representative of pension employees.
As a result of the conflicts of interest created by such a
certification, the Union's continued representation of the labor
standards employees would be prohibited. Consequently, we find
that the continued representation by the Union of the labor
standards employees would not remain viable under section
7135(a)(1).

     In view of this prohibition of section 7112 (c), which is
intended to prevent conflicts of interest, and in view of the
Union's current status as the exclusive representative of OLMS
employees, we conclude that section 7112(c) applies in this case
to make the petitioned-for unit of PWBA employees inappropriate
for representation by the Union so long as the union (1)
continues to represent a unit of OLMS employees, and (2) OLMS
employees continue to administer section 7120 of the Statute. In
addition, contrary to the Union's claims, we find that section
7135(a)(1) of the Statute does not permit the continuation of the
Union's prior representation of PWBA employees and that no
successor relationship exists. We agree with the Regional
Director that the decision in Department of Labor severed any
continued representational relationship between the Union and
those employees.

     V. Order

     The petition in Case No. 3-RO-70003 is dismissed.

     Issued, Washington, D.C., January 29, 1988

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY