U.S. Department of Labor (Agency/Petitioner) and Local 12, American Federation of Government Employees, AFL-CIO (Labor Organization) and U.S. Department of Labor (Agency) and National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO (Labor Organization/Petitioner) and Council 208, American Federation of Government Employees, AFL-CIO (Labor Organization) 



[ v03 p265 ]
03:0265(41)CU
The decision of the Authority follows:


 3 FLRA No. 41
 
 U.S. DEPARTMENT OF LABOR
 Agency/Petitioner
 
 and
 
 LOCAL 12, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO
 Labor Organization
                                            Civil Service Commission
                                            Case No. 114
 
 
 U.S. DEPARTMENT OF LABOR
 Agency
 
 and
 
 NATIONAL COUNCIL OF FIELD LABOR
 LOCALS, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Labor Organization/Petitioner
 
 and
 
 COUNCIL 208, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO
 Labor Organization
                                            Civil Service Commission
                                            Case No. 132
 
                            DECISION AND ORDER
 
    UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
 AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER NANCY ANDERSON.
 THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
 PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED, IN
 A MATTER SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER
 SECTION 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH
 TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE
 AUTHORITY'S RULES AND REGULATIONS (45 F.R. 3482, JANUARY 17, 1980).  THE
 AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE
 FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING BRIEFS FILED BY THE
 PARTIES, THE AUTHORITY FINDS:  /1/
 
    IN CASE NO. CSC 114, THE DEPARTMENT OF LABOR (DOL) SEEKS TO CLARIFY
 THE STATUS OF THE UNIT REPRESENTED EXCLUSIVELY BY LOCAL 12 OF THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (LOCAL 12) BY ACCRETING TO
 IT THE HEADQUARTERS EMPLOYEES OF THE MINE SAFETY AND HEALTH
 ADMINISTRATION (MSHA) OF THE DOL.  IN CASE NO. CSC 132, THE NATIONAL
 COUNCIL OF FIELD LABOR LOCALS OF THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES (THE COUNCIL) SEEKS TO CLARIFY THE UNIT OF DOL EMPLOYEES WHICH
 IT REPRESENTS EXCLUSIVELY BY ACCRETING TO THAT UNIT THE FIELD EMPLOYEES
 OF THE MSHA.  THE PARTIES TO BOTH CASES FULLY SUPPORT THE ACCRETIONS
 SOUGHT IN THE TWO PETITIONS.
 
    ON NOVEMBER 9, 1977, THE FUNCTIONS OF MINE SAFETY AND INSPECTION WERE
 TRANSFERRED ALONG WITH APPROXIMATELY 3500 EMPLOYEES PERFORMING THE
 FUNCTIONS FROM THE DEPARTMENT OF INTERIOR TO DOL, PURSUANT TO THE
 FEDERAL MINE SAFETY AND HEALTH AMENDMENTS ACT OF 1977, PUBLIC LAW
 95-164.  THE REASONING BEHIND THE TRANSFER WAS A CONGRESSIONALLY
 PERCEIVED CONFLICT OF INTEREST WITHIN THE DEPARTMENT OF INTERIOR, WHICH
 ALSO HAS THE RESPONSIBILITY OF MAXIMIZING MINING PRODUCTION.  IT WAS
 FELT THAT THE FUNCTIONS WERE MORE COMPATIBLE WITH THE DOL'S MISSION OF
 PROTECTION OF WORKERS AND THE INSURING OF SAFE AND HEALTHFUL WORKING
 CONDITIONS.  SEE, SENATE REPORT NO. 95-181 TO THE FEDERAL MINE SAFETY
 AND HEALTH AMENDMENTS ACT OF 1977.
 
    PRIOR TO THE TRANSFER, THE FUNCTIONS OF MINE SAFETY AND INSPECTION
 WERE PERFORMED BY THE MINING ENFORCEMENT SAFETY ADMINISTRATION (MESA) OF
 THE DEPARTMENT OF INTERIOR.  THE MESA'S OBJECTIVES WERE TO ADMINISTER
 THE PROVISIONS OF THE FEDERAL METAL AND NONMETALLIC MINE SAFETY ACT AND
 THE FEDERAL COAL MINE HEALTH AND SAFETY ACT.  THE MESA ORGANIZATION
 INCLUDED A HEADQUARTERS OFFICE IN THE WASHINGTON, D.C., METROPOLITAN
 AREA, AND VARIOUS FIELD OFFICES CONCENTRATED IN THE NORTHEAST WHICH
 REPORTED THROUGH ASSISTANT ADMINISTRATORS TO THE ADMINISTRATOR OF MESA.
 THE ASSISTANT ADMINISTRATORS FOR ASSESSMENTS, COAL MINE HEALTH AND
 SAFETY, METAL AND NONMETAL MINE HEALTH AND SAFETY, EDUCATION AND
 TRAINING, AND TECHNICAL SUPPORT EACH HAD THEIR OWN FIELD OFFICES. /2/
 
    FOUR CERTIFIED EXCLUSIVE UNITS REPRESENTED BY THREE DIFFERENT LOCALS
 OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE) WERE IN
 EXISTENCE AT THE TIME OF THE TRANSFER. NONE OF THE AFGE LOCALS EXPRESSED
 AN OBJECTION TO THE ACCRETIONS SOUGHT HEREIN.  MORE THAN FIFTY PERCENT
 OF THE MESA EMPLOYEES WERE IN THESE AFGE UNITS.  AMONG THE UNREPRESENTED
 MESA EMPLOYEES WERE ALL OF ITS HEADQUARTERS EMPLOYEES AND LESS THAN HALF
 OF THE FIELD EMPLOYEES.
 
    THE STRUCTURE OF DOL PRIOR TO THE TRANSFER INCLUDED SEVEN ASSISTANT
 SECRETARY LEVEL ORGANIZATIONS WITH APPROXIMATELY 20,000 EMPLOYEES.  EACH
 ORGANIZATION HAS ITS OWN OPERATIONAL FIELD STRUCTURE, AND OPERATES
 SEPARATELY, WHILE BEING ADMINISTERED THROUGH 10 REGIONAL OFFICES WHICH
 SERVICE ALL OF THEIR FIELD ACTIVITIES.  ALL OF THE DOL'S ORGANIZATIONAL
 ELEMENTS ARE RESPONSIBLE FOR PROMOTING THE WELFARE OF THE AMERICAN
 WORKER.  ALL OF THE DOL'S ELIGIBLE EMPLOYEES (WITH THE EXCEPTION OF
 APPROXIMATELY 800 EMPLOYEES OF THE LABOR-MANAGEMENT SERVICES
 ADMINISTRATION WHO ARE IN A SEPARATE BARGAINING UNIT) WERE, AND CONTINUE
 TO BE, REPRESENTED EXCLUSIVELY BY LOCAL 12 IN WHAT IS ESSENTIALLY A
 HEADQUARTERS UNIT AND BY THE COUNCIL IN A FIELD UNIT.  /3/
 
    AT THE TIME OF THE TRANSFER OF THE APPROXIMATELY 3500 MESA EMPLOYEES
 TO THE DEPARTMENT OF LABOR TO FORM THE NUCLEUS OF THE MSHA, THE DOL
 DECIDED, IN ORDER TO MINIMIZE THE DISRUPTION OF SERVICES TO THE PUBLIC,
 TO TRANSFER THE MESA ORGANIZATION AND PERSONNEL ESSENTIALLY INTACT AND
 TO INTEGRATE THE MSHA INTO THE DOL BOTH ADMINISTRATIVELY AND
 ORGANIZATIONALLY IN PHASES.  AN ASSISTANT SECRETARY OF LABOR FOR MINE
 SAFETY AND HEALTH ADMINISTRATION WAS APPOINTED.  HE MADE CERTAIN
 ORGANIZATIONAL CHANGES BASED ON THE REQUIREMENTS OF THE 1977 AMENDMENTS
 AND TO IMPROVE THE ORGANIZATIONAL STRUCTURE.  CHIEFS OF THE INSPECTION
 FUNCTIONS FOR BOTH COAL MINES AND METAL AND NONMETAL MINES WERE
 ESTABLISHED AT THE ADMINISTRATOR LEVEL, AND CHIEFS OF THE SUPPORT
 FUNCTIONS OF ASSESSMENT, EDUCATION AND TRAINING, TECHNICAL SUPPORT, AND
 ADMINISTRATION AND MANAGEMENT WERE ESTABLISHED AT THE DIRECTOR LEVEL.
 IN OCTOBER OF 1978, THE MSHA WAS CONVERTED TO THE DOL INTEGRATED
 PERSONNEL, PAYROLL, AND BUDGET SYSTEM, AND BETWEEN JANUARY AND FEBRUARY
 OF 1979, THE MSHA FIELD OFFICES WERE INTEGRATED INTO THE DOL'S REGIONAL
 SYSTEM FOR PERSONNEL MANAGEMENT.  THE MSHA FIELD OFFICES ARE SERVICED BY
 ONLY 7 OF THE 10 DOL REGIONAL OFFICES DUE TO THE MAKEUP OF THE MSHA
 FIELD STRUCTURE.  THESE TWO ACTIONS NECESSITATED THE CLOSING OF OFFICES
 IN DENVER AND PITTSBURGH WHICH HAD FORMERLY PERFORMED PERSONNEL AND
 ADMINISTRATIVE SERVICES FOR ALL MSHA FIELD EMPLOYEES AS A CARRY-OVER
 FROM THE MESA.  IN JULY, 1979, THE MSHA'S MISSION AND FUNCTION
 STATEMENTS WERE INCORPORATED INTO THE DOL'S MANUAL SERIES AND THE MSHA
 BECAME SUBJECT TO MOST OF THE DOL'S PERSONNEL AND ADMINISTRATIVE
 POLICIES, ALTHOUGH THE MSHA RETAINS ITS OWN MERIT PROMOTION PLAN AND
 DIFFERENT WORK HOURS FOR ITS FIELD INSPECTORS.  IN VIEW OF THE
 FOREGOING, IS FOUND THAT THE MSHA HAS BECOME ADMINISTRATIVELY AND
 ORGANIZATIONALLY INTEGRATED WITHIN THE DOL.
 
    THE DOL'S INTERNAL LABOR-MANAGEMENT RELATIONS PROGRAM IS ADMINISTERED
 BY ITS OFFICE OF LABOR-MANAGEMENT RELATIONS.  THE RESPONSIBILITY FOR
 ADMINISTERING THE EXISTING AGREEMENTS BETWEEN THE MESA AND THE AFGE
 LOCALS WHICH HELD EXCLUSIVE RECOGNITION PRIOR TO THE TRANSFER HAS BEEN
 TEMPORARILY DELEGATED TO A LABOR RELATIONS OFFICER IN THE MSHA
 HEADQUARTERS.  HOWEVER, THE DOL'S DIRECTOR OF LABOR-MANAGEMENT RELATIONS
 RETAINS THE RESPONSIBILITY FOR NEGOTIATING ANY NEW AGREEMENTS.
 
    THE RECORD ESTABLISHES THAT THE NUMBER OF UNITS AND CORRESPONDING
 NEGOTIATED AGREEMENTS FOR WHICH THE DIRECTOR OF LABOR-MANAGEMENT
 RELATIONS WOULD BE RESPONSIBLE WOULD BE LIMITED TO THREE, RATHER THAN
 THE PRESENT SEVEN, IF A FINDING WERE MADE THAT THE MSHA EMPLOYEES
 ACCRETED TO THE AFGE UNITS AS SOUGHT IN THESE PETITIONS.  THE DIRECTOR
 OF LABOR-MANAGEMENT RELATIONS TESTIFIED THAT IF ACCRETIONS WERE NOT
 FOUND, THE HIRING OF ADDITIONAL PERSONNEL WOULD BE REQUIRED TO PROPERLY
 SERVICE THE INCREASED NUMBER OF UNITS AND AGREEMENTS.  HE ALSO TESTIFIED
 THAT NEGOTIATING THE LAST AGREEMENT BETWEEN THE COUNCIL AND DOL CONSUMED
 OVER 4,000 MAN HOURS, AND COST $63,000 IN PER DIEM, TRAVEL, MEETING ROOM
 RENTAL, AND PRINTING EXPENSES.  IT WAS ESTIMATED THE NEGOTIATIONS OF
 SEPARATE AGREEMENTS FOR THE FOUR UNITS EXISTING IN MESA PRIOR TO THE
 TRANSFER WOULD INVOLVE A SIMILAR COST IN TIME AND MONEY DUE TO THE
 NECESSITY OF TRAVEL AND PER DIEM COSTS BETWEEN WASHINGTON, D.C., AND
 THEIR FIELD LOCATIONS.  IN ADDITION, IT WAS NOTED THAT A GREAT DEAL OF
 ADDITIONAL SUPERVISORY TRAINING WOULD BE REQUIRED DUE TO THE DIFFERENT
 SCOPE OF BARGAINING IN EACH UNIT AND THE DIFFERENT TERMS AND CONDITIONS
 OF EMPLOYMENT NEGOTIATED IN EACH UNIT.
 
    THE FEDERAL LABOR RELATIONS COUNCIL HAS HELD APPROPRIATE UNIT
 DETERMINATIONS UNDER THE EXECUTIVE ORDER MUST EQUALLY SATISFY EACH OF
 THE 10(B) CRITERIA (I.E., COMMUNITY OF INTEREST AMONG THE EMPLOYEES,
 EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS) IN A MANNER
 FULLY CONSISTENT WITH THE PURPOSES OF THE ORDER, INCLUDING THE DUAL
 OBJECTIVES OF PREVENTING FURTHER FRAGMENTATION OF BARGAINING UNITS AS
 WELL AS REDUCING EXISTING FRAGMENTATION, THEREBY PROMOTING A MORE
 COMPREHENSIVE BARGAINING UNIT STRUCTURE.  DEPARTMENT OF THE ARMY, FORT
 MCPHERSON, GEORGIA, 5 FLRC 398, FLRC NO. 76A-82(1977).  /4/ IT IS THE
 CONCLUSION OF THE AUTHORITY THAT THE ACCRETIONS SOUGHT IN THE INSTANT
 CASES SATISFY THE THREE CRITERIA OF SECTION 10(B) UNDER THE RATIONALE
 ADOPTED IN FORT MCPHERSON.
 
    THUS, IN VIEW OF THE FOREGOING AND NOTING ESPECIALLY THE ABOVE
 FINDING THAT THE MSHA HAS BEEN ORGANIZATIONALLY AND ADMINISTRATIVELY
 INTEGRATED WITHIN THE DEPARTMENT OF LABOR, AND THAT THE EMPLOYEES OF THE
 MSHA SHARE WITH ALL DOL EMPLOYEES A COMMON MISSION, ESSENTIALLY THE SAME
 PERSONNEL AND ADMINISTRATIVE POLICIES AND PRACTICES AS ADMINISTERED BY
 THE DOL REGIONAL OFFICES, AND THE SAME PAYROLL, LEAVE AND OTHER
 ACCOUNTING PRACTICES, A COMMUNITY OF INTEREST IS FOUND TO EXIST BETWEEN
 THE EMPLOYEES SOUGHT TO BE ACCRETED AND THOSE IN UNITS ALREADY
 ESTABLISHED AT THE DOL.  FURTHER UNDERSCORING THIS COMMUNITY OF
 INTEREST, IT IS NOTED THE UNDERLYING REASON FOR THE CONGRESSIONALLY
 DIRECTED TRANSFER WAS TO PLACE THE FUNCTION OF MINE SAFETY AND
 INSPECTION IN AN AGENCY WITH A MISSION MORE COMPATIBLE TO THAT FUNCTION,
 A GOAL ACCOMPLISHED WHEN THE FUNCTION WAS TRANSFERRED TO THE DOL.  IN
 SATISFACTION OF THE OTHER CRITERIA OF SECTION 10(B), IT IS NOTED THE
 ACCRETIONS SOUGHT WILL SUBSTANTIALLY REDUCE THE NUMBER OF UNITS, AND
 AVOID THE POTENTIAL FOR FURTHER FRAGMENTATION WITHIN THE DOL.  FINDINGS
 OF ACCRETIONS HEREIN ALSO WILL PROMOTE MORE COMPREHENSIVE BARGAINING AT
 THE SAME LEVEL TO WHICH THE DOL HAS DELEGATED ITS LABOR RELATIONS
 RESPONSIBILITY.  THEREFORE, THE ACCRETIONS WILL CLEARLY PROMOTE BOTH
 EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.  ACCORDINGLY, IT
 SHALL BE ORDERED THAT THE MSHA HEADQUARTERS EMPLOYEES BE ACCRETED INTO
 THE UNIT REPRESENTED EXCLUSIVELY BY LOCAL 12 AND THAT THE MSHA FIELD
 EMPLOYEES BE ACCRETED INTO THE UNIT REPRESENTED EXCLUSIVELY BY THE
 COUNCIL.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT AT THE DEPARTMENT OF LABOR SOUGHT
 TO BE CLARIFIED HEREIN, FOR WHICH LOCAL 12, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, WAS RECOGNIZED ON AUGUST 29, 1962, BE,
 AND IT HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT ALL ELIGIBLE
 EMPLOYEES OF THE MINE SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT OF
 LABOR.
 
    IT IS HEREBY ORDERED THAT THE UNIT AT THE DEPARTMENT OF LABOR SOUGHT
 TO BE CLARIFIED HEREIN, FOR WHICH THE NATIONAL COUNCIL OF FIELD LABOR
 LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, WAS
 RECOGNIZED ON NOVEMBER 5, 1965, BE, AND IT HEREBY IS, CLARIFIED BY
 INCLUDING IN SAID UNIT ALL ELIGIBLE EMPLOYEES OF THE MINE SAFETY AND
 HEALTH ADMINISTRATION, DEPARTMENT OF LABOR.
 
    ISSUED, WASHINGTON, D.C., MAY 23, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASES ARE DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASES HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ THE SUPERINTENDENT OF THE NATIONAL MINE HEALTH AND SAFETY
 ACADEMY, LOCATED IN BECKLEY, WEST VIRGINIA, ALSO APPEARED ON THE
 ORGANIZATION CHART AT THE ASSISTANT ADMINISTRATOR LEVEL.  HOWEVER,
 NEITHER HE, NOR THE ACADEMY, WAS INVOLVED IN THE TRANSFER TO THE DOL.
 
    /3/ A DISPUTE IS PENDING BEFORE THE AUTHORITY OVER THE UNIT STATUS OF
 THE WASHINGTON, D.C., METROPOLITAN AREA FIELD EMPLOYEES OF THE DOL WHICH
 BOTH LOCAL 12 AND THE COUNCIL CLAIM TO REPRESENT.  THE PARTIES
 STIPULATED AT THE HEARING, HOWEVER, THAT AS THERE ARE NO FIELD EMPLOYEES
 OF THE MSHA IN THE WASHINGTON, D.C., METROPOLITAN AREA, THE DISPU