16:0297(45)RO - Antitrust Division, Justice and NTEU; Civil Rights Division, Justice and NTEU -- 1984 FLRAdec RP
[ v16 p297 ]
The decision of the Authority follows:
16 FLRA No. 45 ANTITRUST DIVISION DEPARTMENT OF JUSTICE Activity and NATIONAL TREASURY EMPLOYEES UNION Petitioner Case No. 3-RO-20013 CIVIL RIGHTS DIVISION DEPARTMENT OF JUSTICE Activity and NATIONAL TREASURY EMPLOYEES UNION Petitioner Case No. 3-RO-30006 DECISION AND ORDER Upon petitions 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 these cases, /1/ including the parties' contentions, the Authority finds: In Case No. 3-RO-20013 the Petitioner, National Treasury Employees Union (NTEU), seeks an election in a nationwide unit of all nonsupervisory professional employees of the Antitrust Division, Department of Justice (DOJ), excluding all nonprofessional employees, management officials, supervisors, and employees described in section 7112(b)(2), (3), (4), (6) and (7) of the Statute. In Case No. 3-RO-30006, the same Union has filed a petition seeking an election in a unit of all non-supervisory professional employees (attorneys) of the Civil Rights Division of DOJ. DOJ contends in each case that the petitioned for unit is inappropriate because it does not meet the criteria set forth in section 7112(a)(1) of the Statute. /2/ Essentially, DOJ contends that the attorneys sought to be included in the respective units herein do not share a community of interest separate and distinct from all other DOJ attorneys nationwide, and that the proposed units would not promote effective dealings with, or efficiency of the operations of, the Department. The Department of Justice is organized into 6 bureaus, as well as 15 offices, 3 boards and 7 divisions referred to collectively as "OBDs." It is headed by the Attorney General of the United States who has delegated to the Deputy Attorney General authority to manage the Department. The OBDs, which include the six legal divisions within DOJ, including as pertinent here, the Antitrust and Civil Rights Divisions, are each treated as an entity equivalent to a bureau for administrative purposes. Each division is headed by an Assistant Attorney General. The mission of DOJ is, among other things, to provide legal representation for the United States in court and to advise the Executive agencies. This mission is performed by the attorneys within the OBDs, who are essentially litigation attorneys. Due to the nature of the mission that they perform, these attorneys engage in numerous contacts with each other on a regular basis. In this respect, to make them as functionally interchangeable as possible, all DOJ attorneys are in the excepted service and are temporarily detailed from four to six months to receive common training at the Advocacy Institute within the U.S. Attorney's Office. Moreover, with the exception of those in the U.S. Attorney's Office, all DOJ attorneys in the OBDs share a common job series and pay scales. Personnel policy for all DOJ attorneys within the OBDs is centralized at the OBD level. To ensure uniform and centralized personnel policy, authority in this regard has been delegated to the Director of the Office of Attorney Personnel Management (OAPM) within the Deputy Attorney General's office. Personnel policy is established by orders and memoranda from the Director and is implemented by the heads of the OBDs, including, for the divisions, the Assistant Attorneys General. (Similarly, personnel policy for other employees within the OBDs, is centralized through the use of DOJ and OBD orders through the Assistant Attorney General for Administration.) In addition, labor relations services for all of the attorneys within the OBDs, with the exception of the U.S. Attorney's Office which has its own personnel office, are provided for by the Justice Management Division through a personnel office. The unit sought in Case No. 3-RO-20013, consisting of all nonsupervisory professionals in the Antitrust Division nationwide, has approximately 313 employees, including 273 attorneys and 40 economists. The Antitrust attorneys are classified as trial attorneys and most of them are located in Washington, D.C. Approximately 76 nonsupervisory attorneys are in the Division's seven field offices, where they generally share common facilities with DOJ attorneys of the other legal offices and divisions. The economists are in the competitive service and are located in Washington. The Antitrust Division is organized into sections, like the other legal divisions, and has an Economic Policy Office and seven field offices. The Division also has its own budget and provides seminars and similar training on antitrust matters for its attorneys. Responsibility for enforcement of the antitrust laws of the United States regularly requires the Antitrust Division attorneys to work with other DOJ attorneys in the OBDs. For example, the Antitrust attorneys, as other DOJ attorneys, usually work with attorneys in the U.S. Attorney's Office on litigation matters such as grand jury proceedings; also, they share with Civil Rights Division attorneys enforcement responsibility for a number of statutes. Related pleadings are generally signed by attorneys from both divisions. The Antitrust attorneys must consult the Criminal Division attorneys for authorization of requests for immunity. Antitrust attorneys also work with the Tax Division attorneys on large industry-wide tax cases. Interchange and transfer involving the Antitrust attorneys and attorneys in other legal offices and divisions within the DOJ has occurred regularly. In addition to the aforementioned temporary details to the U.S. Attorney's Office for four to six months with other DOJ attorneys for litigation training, Antitrust Attorneys have been reassigned on occasion outside of the Division to other legal offices and divisions for special law enforcement purposes such as the Cuban and Haitian Refugee Project and the Vietnam amnesty project. Of the 180 transfers within the OBDs from October 1981 to September 1982, approximately 28 involved attorneys transferring between the Antitrust Division and the U.S. Attorney's Office. The Assistant Attorney General for the Antitrust Division provides the day-to-day supervision for the Division. However, he has no delegated personnel authority and his recommendations for personnel actions are reviewed by OAPM. Informally, grievances are settled within the Division; however, formal grievances are resolved by OAPM. The Authority finds that the proposed unit within the Antitrust Division, consisting of attorneys and other professionals, is not appropriate under section 7112(a)(1) of the Statute. In this respect, it has not been shown that Antitrust Division attorneys and other professionals share a community of interest separate and distinct from other attorneys and professionals in the various OBDs of the Department of Justice. Thus, the record shows that the Antitrust attorneys sought are basically litigation attorneys like DOJ attorneys within the other legal offices and divisions, and all of the litigation attorneys are located in the OBDs for organizational purposes. By enforcing the antitrust laws of the United States, Antitrust attorneys, like other DOJ attorneys within the OBDs, provide legal representation in court and advice to the United States. Due to the nature of this mission, as noted, contacts between Antitrust attorneys and other attorneys within the OBDs occur on a regular basis, as do interchange and transfer. To make its litigation attorneys, including those in Antitrust, functionally interchangeable, all DOJ attorneys are in the excepted service, receive common training, and share a common job series, and, except for those in the U.S. Attorney's Office, all DOJ attorneys have common wage scales. Thus, the Antitrust attorneys are subject to common working conditions and practices with other attorneys within the OBDs. Further, except for the U.S. Attorney's Office which has its own personnel office, labor relations services are provided for all legal offices and divisions at the OBD level through the Justice Management Division. As noted previously, personnel policies for the Antitrust attorneys and all other litigation attorneys within the OBDs are centralized at the OBD level. The OBDs are treated as one organizational entity, equivalent to a "bureau," for administrative purposes, and personnel authority in this regard has been delegated to the Director of OAPM to ensure uniform and centrally located personnel policies for these attorneys. The Assistant Attorney General for the Antitrust Division provides supervision but he has no delegated personnel authority and merely implements personnel policies based upon DOJ, OBD and OAPM orders. OAPM sets all attorney personnel policies and reviews all personnel actions in respect thereto. Therefore it is concluded that the attorneys and other professional employees of the Antitrust Division do not share a community of interest separate and distinct from other attorneys and professional employees in the various OBDs of the Agency. Moreover, recognition of attorneys and other professionals on a division basis, as sought, could lead to diverse personnel policies and undue fragmentation among the attorneys within the legal offices and divisions which would not promote effective dealings with, and efficiency of operations of, the Agency. In a previous case, Immigration and Naturalization Service, 12 FLRA No. 68 (1983), the Authority found appropriate a residual unit of all attorneys and other professionals in the Immigration and Naturalization Service (INS), a bureau of the Department of Justice. In contrast, the unit sought here (and the one sought in the companion Civil Rights Division case, discussed below), would include professionals of a single division, which constitute fragments of the "OBDs" or offices, boards and divisions, which together are treated by the Agency as an entity equivalent to a bureau. Thus, unlike the INS situation, as noted, DOJ's efficiency of operations, and effective dealings, would not be promoted by granting the unit sought. Accordingly, the petition in Case No. 3-RO-20013 shall be dismissed. In Case No. 3-RO-30006, NTEU seeks a unit of all nonsupervisory professional employees in the Civil Rights Division, consisting of approximately 126 employees classified as trial attorneys. The Civil Rights Division consists of sections, like other legal divisions within the OBDs. It also has an Executive Office. By prosecuting civil rights violations through the enforcement of executive orders and Federal statutes, the Civil Rights Division attorneys are litigation attorneys who perform a legal representation mission similar to other DOJ attorneys within the OBDs. As a result, Civil Rights Division attorneys have regular and frequent contacts with attorneys in other legal offices and divisions. They interact extensively with attorneys in the U.S. Attorney's Office, as do the attorneys in the other legal offices and divisions. Civil Rights attorneys must direct requests for immunity through the Criminal Division, and consult attorneys in the Civil Division where that Division has been requested to defend Federal officials accused of civil rights violations. Other contacts consist of, but are not limited to, consultations between the Civil Rights attorneys and those in the Tax Division concerning the tax exempt statute of discriminating private schools. The record shows further that interchange and transfers of the attorneys sought in the Civil Rights Division unit to other legal offices and divisions occur regularly. Civil Rights attorneys participate with other DOJ attorneys in temporary details to other legal offices and divisions where additional help is needed. All new hired within the Division are detailed temporarily to the U.S. Attorney's Office with other DOJ attorneys for common training. There have also been transfers by attorneys to and from the Division. The Assistant Attorney General for the Civil Rights Division provides the overall direction for the Division similar to that detailed above in the case of the Antitrust Division. As noted there, attorney personnel policy within the OBDs is determined by OAPM and it is implemented generally within the Civil Rights Division by the Assistant Attorney General. The Authority finds that the proposed unit of attorneys, who are the only eligible professional employees within the Civil Rights Division, is not appropriate under the Statute, as the record reveals facts similar to those discussed above in connection with the Antitrust Division. Thus, it has not been shown that Civil Rights Division attorneys share a community of interest separate and distinct from other attorneys in the various OBDs of the Agency. Their mission requires regular contacts between the Civil Rights attorneys and other attorneys within the OBDs; interchange and transfer occur regularly, and DOJ has sought to make its litigation attorneys, including those in the Civil Rights Division, as functionally interchangeable as possible. Personnel policy regarding the attorneys within the Civil Rights Division, as for other litigation attorneys within the OBDs, is determined by OAPM and OAPM reviews all related personnel actions. Moreover, the record establishes that, like the Antitrust Division, recognition of attorneys on a division basis, as sought, could lead to diverse personnel policies and undue fragmentation among the attorneys within the legal offices and divisions which not promote effective dealings with, and efficiency of operations of, the Agency. Accordingly, the petition in Case No. 3-RO-30006 shall be dismissed. ORDER IT IS ORDERED that the petitions in Case Nos. 3-RO-20013 and 3-RO-30006 be, and they hereby are, dismissed. Issued, Washington, D.C., October 30, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Authority hereby grants the joint motion of the parties in both cases to consolidate these proceedings, noting particularly the parties' intention that the record of one proceeding should incorporate the record of the other. /2/ Section 7112(a)(1) provides, in pertinent part: Sec. 7112. Determination of appropriate units for labor organization representation. (a)(1) The Authority 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.