Department of Health, Education and Welfare, Office of the Secretary (Agency) and American Federation of Government Employees, AFL-CIO (Petitioner) 

 



[ v03 p866 ]
03:0866(125)UC
The decision of the Authority follows:


 3 FLRA No. 125
 
 DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, OFFICE OF THE SECRETARY
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Petitioner
 
                                            Assistant Secretary
                                            Case No. 22-09477(UC)
 
                            DECISION AND ORDER
 
    UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
 AS AMENDED, A HEARING ON THIS MATTER WAS HELD BEFORE A HEARING OFFICER
 OF THE AUTHORITY.  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,
 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
 (5 CFR 2400.2).  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 (5 U.S.C. SECTION
 7101-7135).
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
 AGENCY AND THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, (AFGE), THE AUTHORITY FINDS:
 
    THE AFGE FILED THE INSTANT PETITION SEEKING TO CONSOLIDATE EIGHT
 UNITS REPRESENTED BY SEVEN DIFFERENT AFGE LOCALS WITHIN THE DEPARTMENT
 OF HEALTH, EDUCATION AND WELFARE (AGENCY OR HEW) NATIONWIDE.  THE EIGHT
 UNITS WHICH THE AFGE WOULD CONSOLIDATE (ATTACHMENT 1) ARE DESCRIBED BY
 THE UNION AS ENCOMPASSING ALL EMPLOYEES REPRESENTED BY THE AFGE IN THE
 ADMINISTRATIVE SUBDIVISION OF THE AGENCY KNOWN AS THE OFFICE OF THE
 SECRETARY.  THE AGENCY, IN OPPOSITION TO THE CONSOLIDATION, ARGUES THAT
 THE EMPLOYEES IN THE PROPOSED UNIT DO NOT POSSESS A CLEAR AND
 IDENTIFIABLE COMMUNITY OF INTEREST, NOR WILL THE PROPOSED UNIT PROMOTE
 EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
 
    AT THE TIME OF THE HEARING HEREIN, OCTOBER 12, 1978, THE AGENCY WAS
 ADMINISTRATIVELY COMPOSED OF A NUMBER OF COMPONENTS (SUCH AS THE OFFICE
 OF GENERAL COUNSEL AND THE OFFICE FOR CIVIL RIGHTS) WHICH TOGETHER
 COMPRISE THE OFFICE OF THE SECRETARY (OS), AND FIVE "PRIMARY OPERATING
 COMPONENTS" CHARGED WITH SPECIFIC MISSIONS OR GROUPS OF MISSIONS.  OS IS
 A STAFF ORGANIZATION WHICH PROVIDES SUPPORT AND GUIDANCE TO AND FOR THE
 SECRETARY.  THE PRIMARY OPERATING COMPONENTS (POC'S) ARE LINE
 ORGANIZATIONS RESPONSIBLE FOR THE PERFORMANCE AND FULFILLMENT OF THEIR
 SEVERAL MISSIONS.  THE FIVE PRIMARY OPERATING COMPONENTS ARE:  OFFICE OF
 HUMAN DEVELOPMENT SERVICES (OHDS);  PUBLIC HEALTH SERVICE (PHS);  HEALTH
 CARE FINANCING ADMINISTRATION (HCFA);  SOCIAL SECURITY ADMINISTRATION
 (SSA);  AND EDUCATION DIVISION (ED).
 
    THE AGENCY IS FURTHER DIVIDED INTO A HEADQUARTERS LEVEL LOCATED IN
 WASHINGTON, D.C. AND TEN PRINCIPAL REGIONAL OFFICES.  THE TEN PRINCIPAL
 REGIONAL OFFICES ENCOMPASS AMONG OTHERS, EMPLOYEES ASSIGNED TO AND
 WORKING FOR THE PRIMARY OPERATING COMPONENTS.
 
    AS NOTED IN ATTACHMENT 1, THE AFGE SEEKS TO CONSOLIDATE A UNIT OF OS
 EMPLOYEES AT HEADQUARTERS, AND SEVEN REGIONAL UNITS.  IT APPEARS CLEAR
 FROM THE RECORD THAT SEVERAL OF THE UNITS SOUGHT TO BE CONSOLIDATED
 INCLUDE NOT ONLY EMPLOYEES OF THE OS, BUT ALSO EMPLOYEES OF OTHER
 COMPONENTS OF THE AGENCY, INCLUDING EMPLOYEES ASSIGNED TO THE OFFICE OF
 EDUCATION.
 
    IN THE AUTHORITY'S VIEW, FOR THE REASONS STATED BELOW, IT WOULD NOT
 PROMOTE THE PURPOSES AND POLICIES OF THE ORDER OR THE FEDERAL
 LABOR-MANAGEMENT RELATIONS STATUTE TO DECIDE THE APPROPRIATE UNIT AND
 RELATED ISSUES RAISED IN THIS CASE BY APPLICATION OF THE PROVISIONS OF
 EXECUTIVE ORDER 11491.
 
    ON OCTOBER 17, 1979, SUBSEQUENT TO THE FILING OF THE PETITION HEREIN,
 PRESIDENT CARTER SIGNED INTO LAW THE DEPARTMENT OF EDUCATION
 ORGANIZATION ACT (ACT), PUBLIC LAW 96-88, (93 STAT. 668).  SAID ACT
 ESTABLISHES WITHIN THE EXECUTIVE BRANCH, A NEW CABINET DEPARTMENT-- THE
 DEPARTMENT OF EDUCATION;  PROVIDES THAT THE NEW DEPARTMENT SHALL BE
 HEADED BY A SECRETARY OF EDUCATION;  TRANSFERS TO THE NEW DEPARTMENT THE
 EDUCATION AND EDUCATION-RELATED FUNCTIONS OF THE DEPARTMENT OF HEW AND
 SOME OF THE EDUCATION-RELATED FUNCTIONS OF SEVERAL OTHER DEPARTMENTS AND
 AGENCIES:  AND REDESIGNATES THE DEPARTMENT OF HEW AS THE DEPARTMENT OF
 HEALTH AND HUMAN SERVICES.  SPECIFICALLY, TITLE III, SECTION 301(B)(1)
 OF THE ACT TRANSFERS TO THE SECRETARY OF EDUCATION ALL FUNCTIONS OF THE
 DEPARTMENT OF HEW, THE ASSISTANT SECRETARY FOR EDUCATION, OR THE
 COMMISSIONER OF EDUCATION OF THE DEPARTMENT OF HEW WITH RESPECT TO (A)
 THE EDUCATION DIVISION OF THE DEPARTMENT OF HEW;  (B) THE OFFICE OF THE
 ASSISTANT SECRETARY OF EDUCATION.  FURTHER, SUBSECTION 301(B)(2)
 TRANSFERS TO THE SECRETARY OF EDUCATION ALL FUNCTIONS OF THE SECRETARY
 OF HEW, RELATING TO EDUCATION WHICH ARE ADMINISTERED THROUGH THE OFFICE
 OF THE SECRETARY OF HEW.
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT CASE PROCEEDING HAVE THIS DAY BEEN SENT TO THE
 PARTIES BELOW:
 
    MR. RICHARD B. HACKER
 
    ROOM B-448, TRANS POINT BUILDING
 
    DEPARTMENT OF HEW
 
    OFFICE OF THE SECRETARY
 
    330 INDEPENDENCE AVENUE, SW.
 
    WASHINGTON, D.C.  20201
 
    MR. JAMES NEUSTADT
 
    OFFICE OF THE GENERAL COUNSEL
 
    AMERICAN FEDERATION OF
 
    GOVERNMENT EMPLOYEES
 
    1325 MASSACHUSETTS AVENUE, NW.
 
    WASHINGTON, D.C.  20005
 
    MR. JAMES F. DONOVAN
 
    REGIONAL OFFICE
 
    HEW -- REGION I
 
    PERSONAL OFFICE, ROOM 1503
 
    JFK FEDERAL BUILDING
 
    BOSTON, MASSACHUSETTS 02203
 
    AMERICAN FEDERATION OF
 
    GOVERNMENT EMPLOYEES
 
    1325 MASSACHUSETTS AVENUE, NW.
 
    WASHINGTON, D.C.  20005
 
    ATTN:  MR. TED L. MERRILL,
 
    DIRECTOR OF ORGANIZATION
 
    MR. ALEXANDER T. GRAHAM
 
    REGIONAL DIRECTOR
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1133 15TH STREET, NW., ROOM 300
 
    WASHINGTON, D.C.  20005
 
    THE DEPARTMENT OF EDUCATION WAS ESTABLISHED ON MAY 6, 1980.  IT
 APPEARS CLEAR THAT THE EFFECT OF THE ACT HAS OR WILL REQUIRE SUBSTANTIAL
 REORGANIZATION WITHIN THE FORMER DEPARTMENT OF HEW IN ORDER TO SEVER THE
 EDUCATION AND EDUCATION RELATED FUNCTIONS FOR THE PREVIOUS DEPARTMENT
 AND ESTABLISH THE NEW DEPARTMENT OF HEALTH AND HUMAN SERVICES.  NOTING
 THAT THE EMPLOYEES IN THE UNITS SOUGHT TO BE CONSOLIDATED IN THE INSTANT
 PETITION, ESPECIALLY IN THE REGIONAL OFFICES, CROSS OVER ORGANIZATIONAL
 LINES AND INCLUDE OFFICE OF EDUCATION PERSONNEL, IT APPEARS EQUALLY
 CLEAR THAT SUCH REORGANIZATIONS WILL CREATE SIGNIFICANT CHANGES IN THE
 PROPOSED CONSOLIDATED UNIT.
 
    CONSIDERING PARTICULARLY THE ACT AND ITS FORSEEABLE EFFECT IN
 CHANGING THE STRUCTURE OF THOSE FORMER DEPARTMENT OF HEW UNITS SOUGHT
 TO
 BE CONSOLIDATED HEREIN, AS WELL AS THE FACT THAT COMMENCING ON JANUARY
 11, 1979, LABOR MANAGEMENT RELATIONS IN THE FEDERAL SERVICE CAME UNDER
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE RATHER THAN
 EXECUTIVE ORDER 11491, IN THE AUTHORITY'S VIEW THE ISSUES PRESENTED BY
 THIS CASE, PRIMARILY THE VIABILITY OF THE CONSOLIDATED UNITS SOUGHTS,
 SHOULD NOT BE LITIGATED UNDER THE EXECUTIVE ORDER.  RATHER, FOLLOWING
 THE REORGANIZATIONS REQUIRED BY THE ACT, THOSE ISSUES SHOULD MORE
 APPROPRIATELY BE ADDRESSED UNDER THE PROVISIONS OF THE FEDERAL
 LABOR-MANAGEMENT RELATIONS STATUTE.  ACCORDINGLY, THE AUTHORITY WILL
 DISMISS THE PETITION HEREIN WITHOUT PREJUDICE TO THE RIGHT OF THE
 PETITIONER TO FILE UNDER THE STATUTE.
 
                                   ORDER
 
    THE PETITION IN CASE NO. 22-09477(UC) IS HEREBY DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 31, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
           LIST OF UNITS THE PETITIONER PROPOSES TO CONSOLIDATE
 
    HEADQUARTERS
 
    INCLUDED:  ALL NONPROFESSIONAL, GENERAL SCHEDULE AND WAGE GRADE
 EMPLOYEES OF THE OFFICE OF THE SECRETARY, DEPARTMENT OF HEALTH,
 EDUCATION AND WELFARE, LOCATED IN WASHINGTON, D.C. METROPOLITAN AREA.
 
    EXCLUDED:  ALL PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
 EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
 CLERICAL CAPACITY, SUMMER INTERNS, SUMMER AIDES, SUPERVISORS AND GUARDS
 AS DEFINED IN EXECUTIVE ORDER 11491, AND EMPLOYEES IN POSITIONS WHICH
 ARE CONFIDENTIAL WITH RESPECT TO LABOR RELATIONS MATTERS.
 
    REGION I
 
    INCLUDED:  ALL EMPLOYEES OF THE DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, REGIONAL OFFICE I, BOSTON, MASSACHUSETTS.
 
    EXCLUDED:  PROFESSIONAL AND MANAGERIAL OFFICIALS, GUARDS, EMPLOYEES
 ENGAGED IN FEDERAL PERSONNEL WORK EXCEPT IN A PURELY CLERICAL CAPACITY,
 AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491.
 
    REGION III
 
    INCLUDED:  ALL ELIGIBLE NON-SUPERVISORY EMPLOYEES OF DHEW, REGION
 III, EMPLOYED IN PHILADELPHIA, PENNSYLVANIA.
 
    EXCLUDED:  ALL DHEW, REGION III FIELD OR DISTRICT OFFICE EMPLOYEES;
 EMPLOYEES OF THE DISTRICT OR BRANCH OFFICES OF THE SOCIAL SECURITY
 ADMINISTRATION;  MEMBERS OF THE COMMISSIONED OFFICERS CORPS OF REGION
 III;  TEMPORARY EMPLOYEES (90 DAYS OR LESS);  SUMMER AIDES;  SUMMER
 GRADUATE STUDENTS;  ALL MANAGEMENT OFFICIALS;  SUPERVISORS;
 PROFESSIONALS;  GUARDS;  CONFIDENTIAL EMPLOYEES;  AND EMPLOYEES ENGAGED
 IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.
 
    REGION V
 
    INCLUDED:  ALL PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES OF THE
 DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION V, WITH ITS
 PRINCIPAL OFFICES LOCATED AT 300 WACKER DRIVE, CHICAGO, ILLINOIS.
 
    EXCLUDED:  ALL EMPLOYEES OF THE DISTRICT OFFICES OF THE SOCIAL
 SECURITY ADMINISTRATION, ALL EMPLOYEES OF AND THOSE EMPLOYEES SERVICED
 BY THE CLEVELAND BRANCH OFFICE OF THE REGION V PERSONNEL OFFICE, MEMBERS
 OF THE COMMISSIONED OFFICERS CORPS OF REGION V, MANAGEMENT OFFICIALS,
 EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
 CLERICAL CAPACITY, AND SUPERVISORS AND GUARDS AS DEFINED IN EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    REGION V
 
    INCLUDED:  ALL PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES OF THE
 DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, OFFICE OF CIVIL RIGHTS,
 CLEVELAND, OHIO.
 
    EXCLUDED:  CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
 PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
 OFFICIALS AND SUPERVISORS AS DEFINED IN THE ORDER.
 
    REGION VIII
 
    INCLUDED:  ALL NON-SUPERVISORY EMPLOYEES EXCLUDING PROFESSIONALS OF
 THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VIII, LOCATED IN
 THE DENVER, COLORADO METROPOLITAN AREA AND ASSIGNED TO THE FOLLOWING
 ORGANIZATION COMPONENTS:
 
    1.  OFFICE OF THE SECRETARY
 
    2.  OFFICE OF EDUCATION
 
    3.  SOCIAL AND REHABILITATION SERVICE
 
    4.  HEALTH SERVICE AND MENTAL HEALTH ADMINISTRATION
 
    5.  ENVIRONMENTAL HEALTH SERVICE
 
    6.  NATIONAL INSTITUTE OF HEALTH
 
    7.  SOCIAL SECURITY ADMINISTRATION OFFICE OF THE REGIONAL
 COMMISSIONER AND THE REGIONAL
 
    OFFICES OF THE FOLLOWING BUREAUS:
 
    A.  DISTRICT OFFICE OPERATIONS
 
    B.  HEALTH INSURANCE
 
    C.  DISABILITY INSURANCE
 
    D.  HEARING AND APPEALS
 
    8.  FOOD AND DRUG ADMINISTRATION (REGIONAL OFFICE ONLY)
 
    EXCLUDED:  ALL SUPERVISORY AND MANAGERIAL PERSONNEL, PROFESSIONAL
 EMPLOYEES AND ALL OTHER EMPLOYEES ENGAGED IN PERSONNEL WORK IN OTHER
 THAN A CLERICAL CAPACITY, GUARDS AND SECURITY EMPLOYEES AS DESCRIBED IN
 SECTION 10(B) OF EXECUTIVE ORDER 11491.
 
    REGION VIII
 
    INCLUDED:  ALL PROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF HEALTH,
 EDUCATION AND WELFARE, REGION VIII AND ALL NON-SUPERVISORY EMPLOYEES OF
 THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VIII LOCATED IN
 THE DENVER, COLORADO METROPOLITAN AREA AND ASSIGNED TO THE FOLLOWING
 ORGANIZATIONAL COMPONENTS:
 
    OFFICE OF THE SECRETARY;  OFFICE OF EDUCATION;  SOCIAL AND
 REHABILITATION SERVICE;  HEALTH
 
    SERVICES AND MENTAL HEALTH ADMINISTRATION;  ENVIRONMENTAL HEALTH
 SERVICE;  NATIONAL INSTITUTES
 
    OF HEALTH, FOOD AND DRUG ADMINISTRATION (REGIONAL OFFICE ONLY);  AND
 SOCIAL SECURITY
 
    ADMINISTRATION, OFFICE OF REGIONAL COMMISSIONER AND THE REGIONAL
 OFFICES OF THE FOLLOWING
 
    BUREAUS:
 
    DISTRICT OFFICE OPERATIONS;  HEALTH INSURANCE;  DISABILITY INSURANCE;
  AND HEARINGS AND
 
    APPEALS.
 
    EXCLUDED:  PROFESSIONAL EMPLOYEES IN THE FOOD AND DRUG
 ADMINISTRATION, MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL
 PERSONNEL WORK, TEMPORARY EMPLOYEES UNDER SCHEDULE A APPOINTMENTS AND
 SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
 
    REGION IX
 
    INCLUDED:  ALL PROFESSIONAL AND NON-PROFESSIONAL REGIONAL OFFICE
 EMPLOYEES, INCLUDING THE OFFICE OF EDUCATION, UNDER THE APPOINTING
 AUTHORITY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION IX.
 
    EXCLUDED:  FIELD OR DISTRICT OFFICE EMPLOYEES OF THE BUREAU OF
 DISTRICT OFFICE OPERATIONS, EMPLOYEES OF THE "STAY-IN-SCHOOL" PROGRAM,
 COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, MANAGEMENT
 OFFICIALS, SUPERVISORS, GUARDS AND EMPLOYEES ENGAGED IN FEDERAL
 PERSONNEL WORK IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
 CAPACITY.