16:0297(45)RO - Antitrust Division, Justice and NTEU; Civil Rights Division, Justice and NTEU -- 1984 FLRAdec RP



[ v16 p297 ]
16:0297(45)RO
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
 
 
 
 
 
 
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    /1/ The Authority hereb