13:0039(7)UC - HHS and NTEU -- 1983 FLRAdec RP
[ v13 p39 ]
The decision of the Authority follows:
13 FLRA No. 7 DEPARTMENT OF HEALTH AND HUMAN SERVICES Agency and NATIONAL TREASURY EMPLOYEES UNION Petitioner Case No. 3-UC-26 DECISION AND ORDER Upon a petition duly filed with the Federal Labor Relations Authority under section 7112(d) 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 contentions of the parties, the Authority finds: The Petitioner, National Treasury Employees Union (NTEU), filed the instant petition seeking to consolidate the five units within the Agency, Department of Health and Human Services (HHS), for which it is the exclusive representative. /1/ The units presently represented by NTEU and covered by the petition are set forth in the Appendix. NTEU contends that the petition should be granted because, pursuant to the criteria set out in section 7112(a)(1) of the Statute, /2/ the employees in the existing units together possess a clear and identifiable community of interest since they share a common mission and job classifications and are subject to common labor relations policies and practices. Further, it is argued that consolidation would promote effective dealings and efficiency of Agency operations by raising the level of collective bargaining to allow negotiations with the office of the Assistant Secretary for Personnel Administration (ASPER) which exercises real labor relations authority, and by eliminating redundant bargaining in the existing units. The Agency contends that the employees sought do not share a clear and identifiable community of interest, and that consolidation would be counterproductive both to effective dealings and efficiency of Agency operations. The Agency contends also that the proposed unit is based solely on the extent to which the petitioning labor organization has organized, a consideration proscribed by section 7112(b) of the Statute; /3/ that the proposed unit would not ensure employees the fullest freedom in exercising the rights guaranteed by the Statute as required in section 7112(a)(1); and that the proposed unit would not broaden the scope of bargaining or reduce fragmentation. HHS is administratively divided into several Principal Operating Components (POCs), each with its own mission and nationwide in scope. The POCs are the Social Security Administration (SSA); Health Care Financing Administration (HCFA); Public Health Service (PHS), which includes the Food and Drug Administration (FDA); and Office of Human Development Services (OHDS). Further, the Agency is administratively headed and serviced by the Office of the Secretary (OS), which includes the Offices of Civil Rights, General Counsel, Inspector General, Personnel, and Refugee Settlement. Line management authority, including personnel management, has been delegated to the four POC heads who exercise their authority in the regions through POC regional officials. In addition to its administrative division along functional lines, HHS is divided geographically into a headquarters in Washington, D.C., and ten regional offices which are further divided into field offices. Employees of each POC, and OS employees, are found in each regional office. Personnel administration authority is delegated to the Principal Regional Officer (PRO) in each Region. At the time of the hearing, approximately 97,082 employees of the Agency were represented in some 147 certified bargaining units. Ten of those units were designated as "regional office units" because each included employees of more than one POC within a specific region, although they did not necessarily include all eligible employees within a given region. In the case of those ten regional office units, the PRO is authorized to represent all regional officials in negotiations. In addition, there are two nation-wide units within SSA which have recognition at the level of the head of that POC. Within the ten regions, there are no other units which cross POC lines. The five units which the Petitioner seeks to consolidate contain approximately 2,650 employees. Four of the five, with approximately 2,500 employees, are "regional office units" located in New York, Atlanta, Kansas City and Seattle. The record discloses that none of these is region-wide in nature. The fifth unit, with approximately 150 employees, is located in the Kansas City Region and is the only Food and Drug Administration unit represented by NTEU. /4/ The regional office units in New York, Atlanta, and Kansas City include both professional and nonprofessional employees, as does the FDA unit, while the regional office unit at Seattle is limited to nonprofessional employees. The Atlanta and Kansas City units include FDA employees, but the New York and Seattle units exclude them. While employees in these five units share common job classifications, the employees sought do not share common supervision; this is true even in the two units located in the Kansas City Region. None of the units, including the two in the Kansas City Region, share a common location. Each Region has a "full service" personnel office. As a result, day-to-day labor relations and collective bargaining authority rests at the regional level, subject to general guidelines set by ASPER for merit pay, performance appraisal systems and promotion plans. For example, the regional personnel offices effectuate appointments, classifications, training, promotions and transfers. Authority to determine reductions-in-force affecting more than five employees, classification appeals, and contract review is retained by ASPER. In Department of Transportation, Washington, D.C., 5 FLRA No. 89 (1981), the Authority, in dismissing petitions to consolidate units, noted that section 7112(a)(1) of the Statute requires any unit found appropriate to conform to the three criteria established by that section and held that those criteria applied as well to unit consolidation proceedings pursuant to section 7112(d) of the Statute. /5/ With regard to the community of interest criterion set forth in section 7112(a)(1), the Authority will consider the degree of commonality and integration of the mission and function of the components involved; the distribution of the employees involved throughout the organizational and geographical components of the agency; the degree of similarity of the occupational undertakings of the employees in the proposed unit; and the locus and scope of the personnel and labor relations authority and functions. Department of the Navy, U.S. Marine Corps, 8 FLRA No. 4 (1982). Applying these principles to the instant case, the Authority concludes that the employees in the proposed consolidated unit do not share a clear and identifiable community of interest separate and distinct from other employees of the Agency. Thus, the proposed unit would be limited to employees at only four of the Agency's ten regions. While the proposed unit would cross POC lines and encompass employees in each of the four POCs, it would not include significant numbers of employees in any POC or any region. Rather, the resulting unit would include only about 2,650 of the Agency's more than 97,000 represented employees, and it would exclude employees in every POC and every region who also share common conditions of employment with those included. Accordingly, the employees sought are not sufficiently well distributed throughout the administrative and geographic structure of the Agency so as to constitute a meaningful consolidated unit. /6/ In addition, the record reveals that no transfers or interchange occur among the units that NTEU seeks to consolidate, and there is no common immediate or second-level supervision. Finally, it appears that conditions of employment differ from region to region as a result of geographic dispersal and day-to-day control of personnel and labor relations at the regional level. Accordingly, the Authority finds that the proposed consolidated unit is not appropriate, and will order that the petition be dismissed. /7/ ORDER IT IS HEREBY ORDERED that the petition in Case No. 3-UC-26 be, and it hereby is, dismissed. Issued, Washington, D.C., September 15, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY APPENDIX - Units Sought to Be Consolidated Included: All GS and WG professional and nonprofessional employees of the Department of Health, Education and Welfare, New York Regional Office, Region II. Excluded: Confidential employees, employees engaged in Federal personnel work in other than a purely clerical capacity, management officials, and supervisors as defined in the Statute and employees of the Audit Agency. Included: All GS and WG professional and nonprofessional employees of the Regional Office, Region IV, Department of Health, Education and Welfare, Atlanta, Georgia, including FDA District Offices. Excluded: Management officials, supervisors, confidential employees, employees engaged in Federal personnel work in other than a purely clerical capacity, stay-in-school, temporary employees with appointments of 90 days or less, employees of the Audit Agency and Division of Personnel Security and employees of all other Field Offices, and the Regional and Field Offices of the SSA Office of Quality Assurance. Included: All GS and WG professional and nonprofessional employees of the Department of Health, Education and Welfare, Region VII, in the greater Kansas City Metropolitan area. Excluded: All employees of SSA Office of Central Operations, all employees of the SSA Office of Quality Assurance (Assessment) and the SSA Office of Security and Program Integrity (Assessment), all HEW Audit Agency employees, all employees of SSA Offices of Appeals, all employees of SSA Field Offices, and all employees of the Food and Drug Administration, employees engaged in Federal personnel work in other than a purely clerical capacity, temporary employees with an expected employment of 90 days or less, and confidential employees, management officials, and supervisors as defined in the Federal Service Labor-Management Relations Statute. Included: All nonprofessional employees of the Regional Office of the Department of Health, Education and Welfare, Region X, Seattle, Washington. Excluded: Professional employees, employees engaged in Federal personnel work in other than a purely clerical capacity, management officials, and supervisors as defined in the Act. Included: All professional and nonprofessional General Schedule and Wage Grade employees employed by the Regional Office and Field a Offices of the U.S. Food and Drug Administration, Region VII, Kansas City, Missouri. Excluded: Management officials, supervisors and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7). --------------- FOOTNOTES$ --------------- /1/ All of these units were certified before the Department of Health, Education and Welfare became the Department of Health and Human Services. /2/ 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 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. /3/ Section 7112(b) provides in pertinent part: . . . . (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 . . . . /4/ However, it is one of 18 units within FDA represented by a labor organization. FDA employees are included within the Atlanta Regional Office unit. /5/ Section 7112(d) provides as follows: (d) Two or more units which are in an agency and for which a labor organization is the exclusive representative may, upon petition by the agency or labor organization, be consolidated with or without an election into a single larger unit if the Authority considers the larger unit to be appropriate. The Authority shall certify the labor organization as the exclusive representative of the new larger unit. /6/ See Department of Defense, U.S. Army, Corps of Engineers, 5 FLRA No. 91 (1981). /7/ Inasmuch as all three criteria of section 7112(a)(1) of the Statute must be satisfied in order for the Authority to find that the proposed consolidated unit is appropriate, and a failure to satisfy any one of them must result in a finding that the unit sought is inappropriate, see U.S. Army Training and Doctrine Command, 11 FLRA No. 28 (1983); Department of the Navy, Navy Publications and Printing Service Branch Office, Vallejo, California, 10 FLRA No. 108 (1982); Department of Transportation, Washington, D.C., 5 FLRA No. 89 (1981), the Authority's finding that the unit sought herein fails to meet the community of interest criterion makes it unnecessary to address the other two criteria.