12:0309(68)RO - INS and AFGE -- 1983 FLRAdec RP



[ v12 p309 ]
12:0309(68)RO
The decision of the Authority follows:


 12 FLRA No. 68
 
 IMMIGRATION AND NATURALIZATION
 SERVICE
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Petitioner
 
                                            Case No. 3-RO-89
 
    DECISION AND DIRECTION OF ELECTION
 
    Upon a petition duly filed with the Federal Labor Relations Authority
 under section 7111(b)(1) 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 in this case, including the parties'
 contentions, the Authority finds:  The Petitioner, American Federation
 of Government Employees, AFL-CIO (AFGE), seeks an election in a
 nationwide unit of all non-supervisory professional employees of the
 Immigration and Naturalization Service (INS), excluding special inquiry
 officers.  /1/ INS contends that the petitioned for unit is not
 appropriate because it does not meet the criteria set forth in section
 7112(a)(1) of the Statute.  /2/ More specifically, INS contends that the
 employees sought do not share a community of interest separate and
 distinct from other attorneys of the Department of Justice, and that
 such unit would not promote effective dealings with, or efficiency of
 the operations of, the agency involved.
 
    INS is one of several Bureaus within the Department of Justice.
 Under a Commissioner, who reports to the Attorney General, it is
 primarily responsible for administering and enforcing the provisions of
 the Immigration and Naturalization Act of 1952, as amended (the Act).
 /3/ Structurally, INS is composed of a Central Office, located in
 Washington, D.C.; 4 Regional Offices-- Northern, Eastern, Western,
 Southern-- ;  and 35 District Offices.  /4/ Each of the Regional Offices
 is headed by a Regional Commissioner, who reports directly to the
 Commissioner of INS.  Each District Office is managed by a District
 Director who reports directly to the Regional Commissioner in charge of
 that District.  The Central Office has Enforcement, Examinations,
 Management, and Operations Support offices, each headed by an Associate
 Commissioner.  In addition, the Central Office has an Office of the
 General Counsel.
 
    The petitioned-for unit consists primarily of attorneys, but also
 includes accountants, economists, statisticians, architects and
 engineers.  There are approximately 240 employees in the unit sought, of
 whom approximately 200 are attorneys.  Attorney and non-attorney
 professionals are located in the Central and Regional Offices whereas
 only attorneys are assigned to the District Offices.  AFGE exclusively
 represents a nationwide unit of all (approximately 5300)
 non-professional INS employees, as well as a unit of all (approximately
 2000) non-professional employees assigned to Border Patrol Sectors,
 service-wide.  Additionally, as previously noted (supra n.1), the
 special inquiry officers are exclusively represented in a separate
 professional unit.  Thus, the petitioned-for unit comprises all of the
 potentially eligible employees within INS who are not already included
 in existing units of exclusive recognition.
 
    The non-attorney professionals are in the competitive service and
 are, for the most part, employed in the Central Office.  Attorney
 professionals are in the excepted service and are, for the most part,
 employed in the District Offices.  The non-attorney professionals render
 support services in the area of their expertise.  For example,
 accountants, who constitute the major segment of this group, perform
 financial, accounting and bookkeeping functions in the Central and
 Regional Offices.  Attorneys are classified either as Trial Attorneys or
 General Attorneys.  The principal duty of a Trial Attorney is the
 preparation and presentation of deportation and exclusion cases before
 an Immigration Judge.  The principal duties of a General Attorney
 include preliminary examinations of individuals petitioning for
 naturalization and the trial of naturalization cases before Federal and
 State Courts.
 
    Under a consolidation program established by the Department of
 Justice in July 1980 in order to assure as much as possible that INS
 attorneys are hired, classified, evaluated, promoted and disciplined
 under standards essentially similar to those applicable to all other
 attorneys in the Department of Justice, certain personnel functions
 relating to these attorneys are reviewed and approved by the Associate
 Deputy Attorney General (ADAG) in the Department of Justice.  Thus, the
 program requires that all attorneys hired by INS and the position
 descriptions of all INS attorneys must be approved by the ADAG;  all
 appeals on grievances concerning performance evaluation must come to the
 ADAG;  and all recommendations for discipline in excess of 14 days must
 be approved by the ADAG.  However, the record also establishes that INS'
 recommendations for hiring attorneys have never been disapproved;  that
 the position descriptions for attorneys are certified by the classifiers
 in the Central Office;  that the general personnel functions for
 attorneys are handled by the Central Office in the same manner as for
 non-attorney professionals;  that the day-to-day direction of attorneys
 is accomplished within INS' line-of-command authority;  that labor
 relations functions for attorneys, as well as for non-attorney
 professionals, are handled by the Central Office;  and that personnel
 policies and general working conditions are basically the same for all
 INS professionals.
 
    Based on the foregoing, the Authority concludes that the
 petitioned-for unit is appropriate.  Thus, as noted above, all
 professional employees are engaged in a common mission;  are under the
 supervision and direction of the Commissioner of INS;  and are covered
 by generally uniform personnel policies and practices, as well as common
 labor relations policies.  Under these circumstances, the Authority
 concludes that the employees in the petitioned-for unit share a clear
 and identifiable community of interest.  Further, the Authority
 concludes that a unit of all professional employees within the INS will
 promote effective dealings and efficiency of agency operations noting
 particularly that the record reflects a substantial degree of
 centralization of personnel functions relating to the employees in the
 unit sought.  Accordingly, the Authority finds the following unit to be
 appropriate for the purpose of exclusive recognition within the meaning
 of the Statute.
 
          All professional employees of the Immigration and
       Naturalization Service, excluding special inquiry officers,
       non-professional employees, management officials, supervisors,
       employees engaged in Federal personnel work in other than a purely
       clerical capacity, employees engaged in administering the Statute,
       employees engaged in intelligence or other security work directly
       affecting national security, and employees engaged in
       investigation or audit functions related to the internal security
       of the Activity, as described in section 7112(b)(2), (3), (4), (6)
       and (7) of the Federal Service Labor-Management Relations Statute.
 
                           DIRECTION OF ELECTION
 
    An election by secret ballot shall be conducted among employees in
 the unit described above as soon as feasible.  The appropriate Regional
 Director shall supervise or conduct the election, as appropriate,
 subject to the Authority's Rules and Regulations.  Eligible to vote are
 those in the voting group who were employed during the payroll period
 immediately preceding the date below, including employees who did not
 work during that period because they were out ill, on vacation or on
 furlough, including those in the military service who appear in person
 at the polls.  Ineligible to vote are employees who have quit or were
 discharged for cause since the designated payroll period and who have
 not been rehired or reinstated before the election date.  Those eligible
 shall vote on whether or not they desire to be represented for the
 purpose of exclusive recognition by the American Federation of
 Government Employees, AFL-CIO.  Issued, Washington, D.C., July 14, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Special inquiry officers or "Immigration Judges" have been
 exclusively represented by the National Association of U.S. Immigration
 Judges in a separate certified unit since May 1979.
 
 
    /2/ Section 7112(a)(1) provides:
 
          Sec. 7112.  Determination of appropriate units for labor
       organization representation.
 
          (a)(1) The Authority shall determine the appropriateness of any
       unit.  The Authority shall determine in each case whether, in
       order to ensure employees the fullest freedom in exercising the
       rights guaranteed under this chapter, the appropriate unit should
       be established on an agency, plant, installation, functional, or
       other basis and shall determine any unit to be an appropriate unit
       only if the determination will ensure a clea