Department of Health, Public Health Service, Office of the Assistant Secretary for Health Washington, DC (Activity) and American Federation of Government Employees, Local 41, AFL-CIO (Petitioner)

 



[ v06 p60 ]
06:0060(19)RO
The decision of the Authority follows:


 6 FLRA No. 19
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, PUBLIC HEALTH
 SERVICE, OFFICE OF THE ASSISTANT
 SECRETARY FOR HEALTH
 WASHINGTON, D.C.
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 41, AFL-CIO
 Petitioner
 
                                            Case No. 3-RO-57
 
                    DECISION AND DIRECTION OF ELECTION
 
    UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
 UNDER SECTION 7111(B) 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, INCLUDING BRIEFS FILED BY THE PARTIES, THE
 AUTHORITY FINDS:  THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 41, AFL-CIO (THE PETITIONER), CLAIMING TO REPRESENT CERTAIN EMPLOYEES OF
 THE ACTIVITY, FILED A PETITION SEEKING AN ELECTION IN A UNIT COMPOSED OF
 "ALL NONSUPERVISORY, PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE
 OFFICE OF THE ASSISTANT SECRETARY FOR HEALTH (OASH), PUBLIC HEALTH
 SERVICE, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE /1/ LOCATED IN THE
 WASHINGTON, D.C. METROPOLITAN AREA," EXCLUDING "MANAGEMENT OFFICIALS,
 SUPERVISORS, EMPLOYEES ENGAGED IN PERSONNEL WORK IN OTHER THAN A
 CLERICAL CAPACITY, CONFIDENTIAL EMPLOYEES, AND TEMPORARY EMPLOYEES (AN
 APPOINTMENT OF 700 HOURS OR LESS WHERE THERE IS NO EXPECTATION OF
 CONTINUOUS EMPLOYMENT)." THE ACTIVITY CONTENDS THAT THE UNIT SOUGHT IS
 INAPPROPRIATE, AND THAT THE APPROPRIATE UNIT SHOULD INCLUDE ALL ELIGIBLE
 EMPLOYEES OF THE ACTIVITY WHO ARE SERVICED BY THE OASH PERSONNEL OFFICE.
  MORE SPECIFICALLY, THE ACTIVITY CONTENDS THAT AN ELECTION SHOULD BE
 CONDUCTED AMONG ALL ELIGIBLE UNREPRESENTED OASH EMPLOYEES TO DETERMINE
 WHETHER THEY WISH TO BE INCLUDED IN A BARGAINING UNIT OF NONPROFESSIONAL
 OASH EMPLOYEES LOCATED AT RESEARCH TRIANGLE PARK IN RALEIGH, NORTH
 CAROLINA, FOR WHICH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2923 (AFGE LOCAL 2923) IS CERTIFIED AS THE EXCLUSIVE
 BARGAINING REPRESENTATIVE.  /2/ AFGE LOCAL 2923 DID NOT INTERVENE IN
 THIS CASE AND INDICATED AT THE HEARING THAT IT DID NOT WISH TO REPRESENT
 THE OASH EMPLOYEES LOCATED IN THE WASHINGTON, D.C. METROPOLITAN AREA.
 /3/
 
    OASH AND SIX HEALTH AGENCIES COMPRISE THE PUBLIC HEALTH SERVICE
 (PHS), A PRIMARY NATIONAL SUBDIVISION OF THE DEPARTMENT OF HEALTH AND
 HUMAN SERVICES.  OASH, UNDER THE SUPERVISION OF THE ASSISTANT SECRETARY
 FOR HEALTH (WHO ALSO HAS THE TITLE OF SURGEON GENERAL OF THE PUBLIC
 HEALTH SERVICE), IS DIRECTLY RESPONSIBLE FOR THE PERFORMANCE OF PHS'S
 MISSION OF PROVIDING NATIONAL AND INTERNATIONAL HEALTH POLICY
 ACTIVITIES, INCLUDING HEALTH STATISTICS AND HEALTH SERVICES RESEARCH,
 AND A VARIETY OF OTHER HEALTH-RELATED FUNCTIONS.  THE APPROXIMATELY 1800
 EMPLOYEES WITHIN OASH ARE LOCATED IN THE METROPOLITAN WASHINGTON AREA
 (I.E., HYATTSVILLE AND ROCKVILLE, MARYLAND, AND WASHINGTON, D.C.), AT
 RESEARCH TRIANGLE PARK IN RALEIGH, NORTH CAROLINA, AND IN VARIOUS
 REGIONAL OFFICES.  /4/
 
    THE APPROXIMATELY 140 EMPLOYEES LOCATED AT RESEARCH TRIANGLE PARK
 WORK FOR THE NATIONAL CENTER FOR HEALTH STATISTICS (NCHS), ONE OF THREE
 CENTERS IN THE OASH ORGANIZATION.  NCHS CONSISTS OF 13 DIVISIONS, AND
 THE EMPLOYEES AT RESEARCH TRIANGLE PARK COMPRISE PORTIONS OF TWO OF
 THOSE DIVISIONS.  OF THESE EMPLOYEES, APPROXIMATELY 100 ARE
 NONPROFESSIONALS EXCLUSIVELY REPRESENTED BY AFGE LOCAL 2923.  THESE
 NONPROFESSIONAL EMPLOYEES ARE ENGAGED MAINLY IN DATA PREPARATION AND
 DATA STORAGE FUNCTIONS.  APPROXIMATELY 75% OF THE NONPROFESSIONAL
 EMPLOYEES AT RESEARCH TRIANGLE PARK ARE CLASSIFIED AS CODING CLERKS, IN
 GRADES GS-3 THROUGH 5 (SERIES 357).  THE REMAINDER OF THE UNIT EMPLOYEES
 ARE GENERAL CLERICAL AND SECRETARIAL EMPLOYEES, EXCEPT FOR TWO OR THREE
 STATISTICIANS.  BY CONTRAST, SINCE THE DATA PROCESSING FUNCTIONS ARE
 PERFORMED AT RESEARCH TRIANGLE PARK, THERE ARE VIRTUALLY NO CODING
 CLERKS AT OASH IN THE WASHINGTON METROPOLITAN AREA.  RATHER, THE OASH
 EMPLOYEES IN THE UNIT SOUGHT ARE ENGAGED IN A WIDE VARIETY OF DUTIES
 DIRECTLY RELATED TO THE BROAD MISSION OF OASH IN THE AREA OF PROVIDING
 HEALTH POLICY, RESEARCH AND RELATED FUNCTIONS;  THEY ARE MAINLY
 CLASSIFIED AS ARCHITECTS, STATISTICIANS, SOCIAL SCIENTISTS, ANALYSTS,
 WRITERS AND EDITORS, AND TYPISTS.  THE RECORD FURTHER INDICATES THAT
 THERE HAS BEEN NO TRANSFER OF "RANK-AND-FILE" EMPLOYEES BETWEEN RESEARCH
 TRIANGLE PARK AND OASH IN METROPOLITAN WASHINGTON, AND THAT EMPLOYEES AT
 THE TWO LOCATIONS RARELY INTERACT IN THE NORMAL PERFORMANCE OF THEIR
 DUTIES.
 
    WITH RESPECT TO PERSONNEL MATTERS, THE RECORD SHOWS THAT THE OASH
 PERSONNEL OFFICE IN ROCKVILLE, MARYLAND, SERVICES AND ESTABLISHES
 PERSONNEL POLICIES FOR ALL OASH EMPLOYEES IN THE METROPOLITAN WASHINGTON
 AREA AND AT RESEARCH TRIANGLE PARK, ALTHOUGH THE EMPLOYEES AT EACH
 LOCATION ARE IN SEPARATE GEOGRAPHICALLY DESCRIBED COMPETITIVE AREAS FOR
 THE PURPOSE OF REDUCTIONS-IN-FORCE (RIF).  HOWEVER, LABOR-MANAGEMENT
 RELATIONS MATTERS INVOLVING OASH ARE HANDLED BY THE PHS'S OFFICE OF
 PERSONNEL MANAGEMENT, WHICH HAS NEGOTIATED THE THREE SUCCESSIVE
 COLLECTIVE BARGAINING AGREEMENTS ON BEHALF OF OASH COVERING THE UNIT OF
 NONPROFESSIONAL EMPLOYEES AT RESEARCH TRIANGLE PARK EXCLUSIVELY
 REPRESENTED BY AFGE LOCAL 2923 SINCE 1971, INCLUDING THE AGREEMENT
 CURRENTLY IN EFFECT.
 
    WHILE THE NONPROFESSIONAL EMPLOYEES AT RESEARCH TRIANGLE PARK ARE THE
 ONLY OASH EMPLOYEES CURRENTLY INCLUDED IN A UNIT OF EXCLUSIVE
 RECOGNITION, THE PETITIONER WAS PREVIOUSLY CERTIFIED IN 1973 AS THE
 EXCLUSIVE REPRESENTATIVE OF ALL NONPROFESSIONAL EMPLOYEES IN THE OFFICE
 OF THE SECRETARY, HEW, LOCATED IN THE WASHINGTON, D.C. METROPOLITAN
 AREA, BUT IN 1976 CEASED TO REPRESENT THOSE UNIT EMPLOYEES WHO WERE
 TRANSFERRED TO OASH AS THE RESULT OF A REORGANIZATION.  SIMILARLY, IN
 1976 THE PETITIONER WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF ALL
 PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE HEALTH RESOURCES
 ADMINISTRATION (HRA), AN ORGANIZATIONAL ENTITY WITHIN PHS, BUT IN 1978
 CEASED TO REPRESENT THOSE EMPLOYEES WHO WERE TRANSFERRED FROM HRA TO
 OASH AS THE RESULT OF A REORGANIZATION.
 
    BASED ON THE FOREGOING CIRCUMSTANCES, THE AUTHORITY FINDS THAT THE
 UNIT WHICH THE PETITIONER SEEKS TO REPRESENT IS APPROPRIATE FOR THE
 PURPOSE OF EXCLUSIVE RECOGNITION UNDER SECTION 7112(A) OF THE STATUTE
 BECAUSE IT ENCOMPASSES EMPLOYEES WHO SHARE A CLEAR AND IDENTIFIABLE
 COMMUNITY OF INTEREST AND WILL PROMOTE EFFECTIVE DEALINGS AND THE
 EFFICIENCY OF THE OPERATIONS OF THE AGENCY.  THUS, IN THE WASHINGTON,
 D.C. METROPOLITAN AREA DIFFER SUBSTANTIALLY FROM THOSE OF THE OASH
 EMPLOYEES LOCATED AT RESEARCH TRIANGLE PARK IN RALEIGH, NORTH CAROLINA.
 AS PREVIOUSLY STATED, WHILE THE EMPLOYEES IN THE UNIT SOUGHT ARE
 INVOLVED IN A WIDE VARIETY OF HEALTH POLICY AND RESEARCH MATTERS, THOSE
 IN RESEARCH TRIANGLE PARK ARE ALMOST EXCLUSIVELY IN CLERICAL POSITIONS
 AND PERFORM STRICTLY DATA PROCESSING DUTIES.  MOREOVER, THERE HAS BEEN
 NO TRANSFER OF EMPLOYEES FROM ONE LOCATION TO THE OTHER, AND NO
 INTERACTION OR INTERCHANGE BETWEEN THE EMPLOYEES AT THE TWO LOCATIONS IN
 THE PERFORMANCE OF THEIR RESPECTIVE DUTIES.  SIMILARLY, THE EMPLOYEES AT
 EACH LOCATION ARE IN SEPARATE COMPETITIVE AREAS FOR RIF PURPOSES.
 HENCE, THERE IS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE
 OASH EMPLOYEES IN THE PROPOSED UNIT SEPARATE AND DISTINCT FROM THE
 EMPLOYEES AT RESEARCH TRIANGLE PARK.  FURTHER, THE PROPOSED UNIT WILL
 PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF THE OPERATIONS OF THE
 AGENCY.  IN THIS REGARD, WHILE THE OASH PERSONNEL OFFICE SERVICES THE
 EMPLOYEES AT BOTH LOCATIONS, THE AUTHORITY NOTES THAT THE EMPLOYEES AT
 RESEARCH TRIANGLE PARK HAVE BEEN SEPARATELY AND EFFECTIVELY REPRESENTED
 BY AFGE LOCAL 2923 SINCE 1971 AND ARE PRESENTLY COVERED BY A COLLECTIVE
 BARGAINING AGREEMENT NEGOTIATED ON BEHALF OF OASH BY LABOR-MANAGEMENT
 RELATIONS REPRESENTATIVES AT THE PRIMARY NATIONAL SUBDIVISION (PHS)
 LEVEL.  IT IS FURTHER NOTED THAT AFGE LOCAL 2923 HAS NOT INTERVENED BUT
 INSTEAD HAS EXPRESSLY DISCLAIMED ANY INTEREST IN REPRESENTING THE OASH
 EMPLOYEES IN THE PROPOSED UNIT.  IN THE AUTHORITY'S VIEW, IT WOULD NOT
 PROMOTE EFFECTIVE DEALINGS OR THE EFFICIENCY OF AGENCY OPERATIONS TO
 REQUIRE SUCH UNREPRESENTED EMPLOYEES TO VOTE ON WHETHER THEY WISH TO BE
 INCLUDED IN THE UNIT OF NONPROFESSIONAL EMPLOYEES LOCATED AT RESEARCH
 TRIANGLE PARK, AS THE ACTIVITY CONTENDS.  /5/
 
    ACCORDINGLY, BASED ON ALL OF THE FOREGOING, THE AUTHORITY FINDS,
 SUBJECT TO THE RESULT OF THE SELF DETERMINATION ELECTION ORDERED INFRA,
 THE FOLLOWING UNIT TO BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
 RECOGNITION UNDER THE STATUTE:
 
    ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE OFFICE OF THE
 ASSISTANT SECRETARY FOR
 
    HEALTH, PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, LOCATED IN THE
 
    WASHINGTON, D.C. METROPOLITAN AREA, EXCLUDING ALL TEMPORARY EMPLOYEES
 WITH AN APPOINTMENT OF
 
    700 HOURS OR LESS WHERE THERE IS NO EXCEPTION OF CONTINUED
 EMPLOYMENT, MANAGEMENT OFFICIALS,
 
    SUPERVISORS,(B)(2), (3), (4), (6) AND (7) OF THE STATUTE.
 
    IT IS NOTED THAT THIS UNIT INCLUDES PROFESSIONAL EMPLOYEES.  AS
 PRESCRIBED BY SECTION 7112(B)(5) OF THE STATUTE, THE AUTHORITY IS
 PROHIBITED FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH
 NONPROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF THE PROFESSIONAL
 EMPLOYEES VOTE FOR INCLUSION IN SUCH A UNIT.  ACCORDINGLY, THE DESIRE OF
 THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
 NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED BY A SELF DETERMINATION
 ELECTION.  THE AUTHORITY, THEREFORE, DIRECTS SEPARATE ELECTIONS IN THE
 FOLLOWING GROUPS:
 
    VOTING GROUP (A):  ALL PROFESSIONAL EMPLOYEES OF THE OFFICE OF THE
 ASSISTANT SECRETARY FOR
 
    HEALTH, PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, LOCATED IN THE
 
    WASHINGTON, D.C. METROPOLITAN AREA, EXCLUDING ALL NONPROFESSIONAL
 EMPLOYEES, TEMPORARY
 
    EMPLOYEES WITH AN APPOINTMENT OF 700 HOURS OR LESS WHERE THERE IS NO
 EXPECTATION OF CONTINUED
 
    EMPLOYMENT, MANAGEMENT OFFICIALS, SUPERVISORS, AND EMPLOYEES AS
 DESCRIBED IN SECTION
 
    7112(B)(2), (3), (4), (6) AND (7) OF THE STATUTE.
 
    VOTING GROUP (B):  ALL NONPROFESSIONAL EMPLOYEES OF THE OFFICE OF THE
 ASSISTANT SECRETARY
 
    FOR HEALTH, PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, LOCATED IN THE
 
    WASHINGTON, D.C. METROPOLITAN AREA, EXCLUDING ALL PROFESSIONAL
 EMPLOYEES, TEMPORARY EMPLOYEES
 
    WITH AN APPOINTMENT OF 700 HOURS OR LESS WHERE THERE IS NO
 EXPECTATION OF CONTINUED
 
    EMPLOYMENT, MANAGEMENT OFFICIALS, SUPERVISORS, AND EMPLOYEES AS
 DESCRIBED IN SECTION
 
    7112(B)(2), (3), (4), (6) AND (7) OF THE STATUTE.
 
    THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
 AS TO WHETHER THEY DESIRE TO BE REPRESENTED BY THE AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 41, AFL-CIO, OR BY NO UNION.
 
    THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
 QUESTIONS ON THEIR BALLOTS:  (1) WHETHER THEY WISH TO BE INCLUDED WITH
 THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE RECOGNITION,
 AND (2) WHETHER THEY WISH TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
 RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 41, AFL-CIO, OR BY NO UNION.  IN THE EVENT THAT A MAJORITY OF THE VALID
 VOTES IN VOTING GROUP (A) IS CAST IN FAVOR OF INCLUSION IN THE SAME UNIT
 WITH THE NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF VOTING GROUP (A)
 SHALL BE COMBINED WITH THOSE OF VOTING GROUP (B).
 
    UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) IS CAST FOR
 INCLUSION IN THE UNIT WITH NONPROFESSIONAL EMPLOYEES, THEY WILL BE TAKEN
 TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND AN
 APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING WHETHER OR NOT THESE
 EMPLOYEES DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
 RECOGNITION BY THE AMERICAN FEDERATION