16:0586(85)CA - HHS, Washington, DC and HHS, Region VII, Kansas City, MO and NTEU -- 1984 FLRAdec CA



[ v16 p586 ]
16:0586(85)CA
The decision of the Authority follows:


 16 FLRA No. 85
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, WASHINGTON, D.C. AND
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 REGION VII, KANSAS CITY, MISSOURI
 Respondents
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 7-CA-30131
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondents had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 General Counsel and the Charging Party filed exceptions to the Judge's
 Decision, and the Respondents filed an opposition to the exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions /1/ and Recommended Order.
 
    In affirming the Judge's decision that the Respondents did not
 violate section 7116(a)(1), (5) and (8) of the Statute by terminating
 the dues assignment of certain employees, the Authority agrees that the
 employees in question ceased to be part of the certified bargaining unit
 upon their transfer to the Office of the Inspector General.  The record
 clearly indicates that the employees in the newly created Office of
 Inspector General, Office of Health Financing Integrity, are now part of
 the new organization with a separate and distinct mission;  that they
 are under separate overall supervision and authority;  and that they
 share an area of competition for promotions and reductions-in-force
 separate from that of the employees in the existing bargaining unit.
 See United States Department of Health and Human Services, Region VI,
 Dallas, Texas, 15 FLRA No. 161 (1984).  As the employees ceased to be
 part of the bargaining unit, terminations of dues withholdings were
 proper and in accordance with the Statute.  See Department of the Air
 Force, Griffiss Air Force Base, Rome, New York, 12 FLRA No. 50 (1983),
 set aside and remanded as to other matters sub nom. American Federation
 of Government Employees, Local 2612 v. FLRA, 739 F.2d 87 (2d Cir. 1984),
 Supplemental Decision and Order, 15 FLRA No. 188 (1984).
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 7-CA-30131 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., November 27, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF HEALTH AND HUMAN
    SERVICES, WASHINGTON, DC AND
    DEPARTMENT OF HEALTH AND HUMAN
    SERVICES, REGION VII,
    KANSAS CITY, MISSOURI
                                Respondents
 
    and
 
    NATIONAL TREASURY EMPLOYEES UNION
                              Charging Party
 
                                       Case No.: 7-CA-30131
 
    Bruce R. Granger, Esquire
    Susan Callahan, Esquire
    Paul P. Cacioppo, Esquire
    On Brief
    For the Respondents
 
    Mr. John R. Morefield
    William Harness, Esquire
    M. Kathryn Durham, Esquire By Brief
    For the Charging Party
 
    Daniel Minahan, Esquire
    For the General Counsel
 
    Before:  WILLIAM B. DEVANEY
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
 et seq., /2/ and the Final Rules and Regulations issued thereunder, 5
 C.F.R. 2423.1, et seq., concerns whether ten employees who had been
 included in the bargaining unit remained in the bargaining unit after
 their transfer to the Office of the Inspector General.  Neither the
 National Treasury Employees Union (hereinafter, also, referred to as
 "NTEU" or the "Union"), which seeks to have the affected employees
 declared included in the bargaining unit, notwithstanding their transfer
 to the Office of the Inspector General, nor the Respondents, who assert
 that the affected employees ceased to be part of the bargaining unit
 upon their transfer from a Principal Operating Component of Region VII
 (cf. Department of Health and Human Services and National Treasury
 Employees Union, 13 FLRA No. 7, 13 FLRA 39 (1983), a unit clarification
 case in which the Authority considered the administrative division of
 HHS) to the Office of the Inspector General, which is not a component of
 Region VII, saw fit to utilize the unit clarification procedure;  but,
 to the contrary, Respondents refused to recognize NTEU as the
 representative of the affected employees after their transfer to the
 Office of the Inspector General and terminated the dues assignments of
 the five transferred employees who were dues-paying members of NTEU;
 and NTEU filed unfair labor practice charges.  This is not a
 representation case and the bargaining unit as certified /3/ may not be
 altered in an unfair labor practice proceeding, although unit
 determinations concerning particular employees as being included or
 excluded from bargaining units as certified may, and in this case must,
 be resolved in an unfair labor practice proceeding.  See, Internal
 Revenue Service, Seattle District, et al., 12 FLRA No. 74, 12 FLRA 324
 (1983);  North Carolina Air National Guard, Charlotte, North Carolina, 4
 FLRA No. 44, 4 FLRA 348 (1980);  The Adjutant General - Georgia, Georgia
 National Guard, Department of Defense, Atlanta, Georgia, 2 FLRA No. 92,
 2 FLRA 712 (1980);  U.S. Department of Energy, Western Area Power
 Administration, Golden, Colorado and International Brotherhood of
 Electrical Workers, AFL-CIO, Locals 640, 1245, 1759, 1959 and 2159, Case
 No. 7-CA-1229, OALJ-82-119 (August 4, 1982).  Rather, the issue is, more
 narrowly, whether the affected employees remained in the certified
 bargaining unit after their transfer to the Office of the Inspector
 General.
 
    This proceeding was initiated by a charge, filed on January 10, 1983
 (G.C. Exh. 1(a));  a First Amended Charge, filed on January 31, 1983
 (G.C. Exh. 1(b));  and a Second Amended Charge, filed on March 21, 1983
 (G.C. Exh. 1(c)).  The Complaint and Notice of Hearing issued on March
 30, 1983 (G.C. Exh. 1(d)), and a hearing was scheduled for May 18, 1983;
  by Order dated May 13, 1983 (G.C. Exh. 1(i)y the hearing was
 indefinitely postponed;  by Order dated June 24, 1983 (G.C. Exh. 1(k)),
 the hearing was rescheduled for August 25, 1983, at a place to be
 determined;  and by Order dated June 30, 1983 (G.C. Exh. 1(1)), the
 place of hearing was set, pursuant to which a hearing was duly held
 before the undersigned on August 25, 1983, /4/ in Kansas City, Missouri.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issues involved and were afforded
 opportunity to present oral argument.  At the close of the hearing,
 September 26, 1983, was fixed as the date for mailing post-hearing
 briefs, which time was subsequently extended, on timely Motion of NTEU
 to which the other parties did not object, to October 13, 1983.  General
 Counsel, the Charging Party (NTEU) and Respondents each timely mailed an
 excellent brief, received on or before October 17, 1983, which have been
 carefully considered.  Upon the basis of the entire record, /5/
 including my observation of the witnesses and their demeanor, I make the
 following findings and conclusions:
 
                                 Findings
 
    1.  NTEU is the certified representative for the following unit:
 
          "INCLUDING:  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.
 
          "EXCLUDING:  All employees of SSA Office of Central Operations,
       all employees of the SSA Office of Quality Assurance (Assessment)
       of the SSA Office of Security and Program Integrity (Assessment),
       all HEW Audit Agency employees, all employees of SSA Office 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." (G.C. Exh. 1(o), Jt. Exh. 1;  Certification dated June
       15, 1979).
 
    2.  The parties entered into a collective bargaining agreement dated
 October 21, 1981 (G.C. Exh. 1(o), Jt. Exh. 2), for a three year term.
 Article 1, "Recognition and Coverage" defines the "employer" as "The
 Department of Health and Human Services, Region VII", the unit of
 exclusive representation was as set forth in the certification except:
 (a) in describing the employees included, the name "Department of Health
 and Human Services" was substituted for "Department of Health, Education
 and Welfare" in the certification;  and, (b) the exclusions were
 modified as more fully set forth in n.2, supra.  Article 51 governs "Due
 Withholding" and Section 5E thereof provides for termination of dues
 allotment, "Termination due to separation, transfer, or reassignment."
 NTEU's dues are $4.70 per bi-weekly pay period (G.C. Exh. 1(o)).
 
    3.  On December 10, 1982, the national office of Health Care
 Financing Administration (hereinafter, also, referred to as "HCFA") and
 the Inspector General entered into a memorandum of understanding for the
 transfer of certain functions, including personnel, which transfer had
 been approved by the Secretary of Health and Human Services, from HCFA
 to the Office of the Inspector General (G.C. Exh. 1(o), Jt. Exh. 5).
 The transfer was implemented on January 9, 1983.  In Kansas City,
 thirteen of twenty-seven employees of HCFA's Division of Quality Control
 were transferred to the Inspector General's Office of Health Financing
 Integrity (G.C. Exh. 1(o)) (hereinafter, the Office of the Inspector
 General, including the Office of Health Financing Integrity, is also,
 referred to as "OIG").  The fourteen employees in the Division of
 Quality Control who were not transferred to OIG were reassigned within
 HCFA.
 
    4.  Prior to transfer of OIG, ten of the thirteen employees
 transferred had been included in the bargaining unit and five of them
 had been dues-paying members of NTEU.
 
    5.  On January 7, 1983, Respondent notified Mr. Lemuel Hester,
 President of NTEU Chapter 217, that,
 
          "It is management's position that employees of the Office of
       the Inspector General are excluded from the bargaining unit.  This
       includes those employees identified to transfer from the Health
       Care Financing Administration to the Office of the Inspector
       General on January 9, 1983." (G.C. Exh. 1(o), Jt. Exh. 9).
 
 This has been the consistent position of the Department since December
 5, 1977, when Secretary Califano determined, " . . . that the Office of
 the Inspector General (Department and Field) shall be excluded from
 coverage of the Order (E.O. 11491, as amended) . . . ." (G.C. Exh. 1(o),
 Jt. Exh. 7) and by memorandum, issued March 1, 1983, Inspector General
 Richard P. Kusserow advised all supervisors that,
 
          " . . . It is our position that OIG employees are excluded from
       participation in collective bargaining activities by provisions of
       the Civil Service Reform Act of 1978." (G.C. Exh. 1(o), Jt. Exh.
       8).
 
    6.  Since January 9, 1983, Respondents have excluded the employees
 transferred from the bargaining unit and have refused to recognize and
 deal with NTEU as the exclusive representative of the employees
 transferred to the OIG (G.C. Exh. 1(o)).
 
    7.  Since their transfer to the OIG on January 9, 1983, Respondents
 have revoked and refused to honor written dues assignments from those
 employees transferred to the OIG (G.C. Exh. 1(o)).
 
    8.  The Office of Inspector General was created by an act of Congress
 enacted October 15, 1976, P.L. 94-505, (G.C. Exh. 1(o), Jt. Exh. 10).
 No labor organization has ever been recognized or certified as the
 exclusive representative of any employees of the Office of Inspector
 General.  (G.C. Exh. 1(o)).
 
    9.  The Inspector General is appointed by the President and confirmed
 by the Senate and is subject to removal by the President only for cause
 communicated "to both Houses of Congress";  "shall report to and be
 under the general supervision of the Secretary . . . but shall not be
 under the control of, or subject to supervision by, any other officer of
 the Department" (42 U.S.C. 3522(a));  reports both to the Secretary and
 to Congress (42 U.S.C. 3523, 3524);  and has independent personnel
 authority (42 U.S.C. 3525).  The Office of Inspector General was made an
 independent and objective unit in the Department by Congress, inter
 alia, "to conduct and supervise audits and investigations relating to
 programs and operations . . . ;  to provide leadership and coordination
 and recommend policies for activities designed (A) to promote economy
 and efficiency in the administration of, and (B) to prevent and detect
 fraud and abuse in, such programs and operations . . . ." (42 U.S.C.
 3521).
 
    10.  Mr. Charles Gaul, Regional Labor Relations Officer for Region
 VII, described the structure of Region VII which is divided into several
 Principal Operating Components (POCs), each with its own mission and
 nationwide in scope (see, also, Department of Health and Human Services,
 13 FLRA No. 7, 13 FLRA 39, 40-41 (1983) wherein the Authority succinctly
 described the administrative organization of HHS).  The POCs are:  Human
 Development Services;  Health Care Financing Administration;  Public
 Health Service, which includes the Food and Drug Administration;  and
 Social Security Administration (Tr. 38, 39, G.C. Exh. 1(o), Jt. Exh. 4).
  The Regional Director is the representative of the Secretary in the
 region (Principal Regional Officer) and, although not immediately
 responsible for administration of the programs of the POCs, exercises a
 coordinating function over the POCs and has been given authority to
 enter into labor agreements on behalf of regional employees who work for
 the various POCs (Tr. 39, G.C. Exh. 1(o), Jt. Exh. 2).  The Regional
 Director does not, however, have any authority over employees of OIG
 (Tr. 39, 223, Res. Exh. 27);  nor may OIG employees engage in program
 operations (Tr. 199).
 
    11.  The Office of Audit (referred to as "Audit Agency employees" in
 the Certification and in the recognition clause of the parties'
 agreement) has been part of the OIG since the OIG was created;  are
 serviced by the Region VII personnel office pursuant to delegation of
 authority by the IG;  and were specifically excluded by the
 certification and by the recognition clause of the agreement.  The
 Office of Investigations was part of the OIG from the inception of OIG
 and its employees are serviced by the Office of the Assistant Secretary
 for Personnel in Washington, DC;  however, the Social Security Field
 Integrity Staff, excluded from the bargaining unit, were transferred to
 the OIG on November 28, 1982, and were serviced by the Region VII
 personnel office.  The Health Financing Integrity employees of OIG were
 serviced by the Region VII personnel office;  however, effective October
 1, 1983, both the Social Security Field Integrity Staff employees and
 the Health Financing Integrity employees will be serviced by the Office
 of the Assistant Secretary for Personnel in Washington, DC (Res. Exh.
 15, 16;  Tr. 218-219, 260-261) (servicing of Office of Audit employees
 will also be transferred to Washington but no date has been fixed.  Tr.
 219).
 
    12.  The organization of the OIG is shown on Respondent's Exhibit 1.
 Under the Inspector General and the Deputy Inspector General are four
 divisions:  Office of Investigations;  Office of Program Inspections;
 Office of Health Financing Integrity;  and Office of Audit, each headed
 by an Assistant Inspector General.  Mr. Don Nicholson is Assistant
 Inspector General for Health Financing Integrity and Mr. James Francis
 Patton is Deputy Assistant Inspector General for Health Financing
 Integrity.  Mr. Don McLaughlin is Regional Director of the Office of
 Health Financing Integrity, Region VII and Mr. Jim Wolf is Deputy
 Regional Director (G.C. Exh. 9).
 
    13.  On January 9, 1983, the employees transferred from Health Care
 Financing Administration ceased to be employees of POCs of Region VII
 and became employees of OIG.  They immediately became subject to the
 independent personnel authority of the Inspector General (Tr. 257-258);
 immediately became part of a separate competitive area (Tr. 256);
 immediately became subject to the OIG career board (Tr. 253-254);  and
 more important, their mission and function changed.  As part of the OIG,
 their function shifted to oversight and evaluation of Health Care
 Financing Administration's performance (Tr. 133-134, 178-179, 191-193,
 220, 319-320, 371);  employee investigations became a new major duty;
 they assumed a new primary duty under the Civil Monetary Penalties Act
 (Tr. 290-292);  as employees of OIG they not only acquired the statutory
 independence given to the OIG, but also assumed special authority,
 including the power to issue subpoenas and the authority to place
 witnesses under oath (Tr. 221);  and they immediately came under the
 supervision and director of OIG.  It is true that the immediate
 supervisors and most of the transferred employees did not change, but
 this was true only because their prior immediate supervisors, Messrs.
 McLaughlin and Wolf, became, respectively, Regional Director and Deputy
 Regional Director of the OIG Office of Health Financing Integrity.
 
    14.  Although the transferred employees continue to work in the same
 area (Tr. 62, 390), on May 2, 1980, OIG placed in motion directions to
 locate all Office of Investigation and Audit in contiguous OIG office
 space (Res. Exh. 9) and Inspector General Kusserow testified that such
 "co-location" will include all OIG employees;  that the process has been
 substantially achieved nationwide;  that it is in the process of being
 completed at Kansas City (Tr. 247);  and Mr. McLaughlin testified that
 GSA was expected to sign a contract about the first of September for
 occupancy by OIG by December 1, 1983, in City Center Square, Kansas
 City, which he estimated is six to eight blocks from their present
 location (Tr. 390).  As noted above, while the Region VII personnel
 office provided administrative support for Audit and Health Financing
 Integrity employees of the OIG, effective October 1, 1983, these
 employees will be serviced by Washington, DC.  The record shows that
 such "servicing" was wholly ministerial and that all personnel
 decisions, e.g., evaluations, promotions, job descriptions, etc., were
 retained and performed by OIG.  Inspector General Kusserow testified
 that on May 19, 1983, Mr. Don Nicholson, Assistant Inspector General for
 Health Financing Integrity, advised all of his Regional Directors that
 position descriptions would be re-written to update them to accurately
 reflect current duties and functions (Res. Exh. 6, Tr. 238-239) and a
 new standardized position description has been written for a GS-12 (Res.
 Exh. 7), implementation of which is pending approval of the Office of
 Personnel Management (Tr. 239).
 
                                Conclusions
 
    The issue in this case is whether the ten employees remained in the
 certified bargaining unit after their transfer to the OIG.  For reasons
 set forth hereinafter I conclude that they did not, i.e., that upon
 their transfer to the OIG they ceased to be part of the certified
 bargaining unit.
 
    The original charge quite candidly recognized that the employees in
 question were, " . . . transferred to the Office of the Inspector
 General (OIG), an office outside the bargaining unit" (G.C. Exh. 1(a))
 and, although First and Second Amended Charges (G.C. Exhs. 1(b) and
 (1)(c) and the Complaint (G.C. Exh. 1(d)) omit the concession that they
 were "transferred to . . . an office outside the bargaining unit", the
 record firmly, and without contradiction, establishes that they were
 indeed transferred to an office, the OIG, outside the bargaining unit.
 First, the OIG is an independent entity within the Department of Health
 and Human Services, created by Congress specifically, as an independent
 and objective unit to conduct and supervise audits and investigations
 relating to programs and operations of the Department;  to provide
 leadership and coordination and recommend policies for activities
 designed (A) to promote economy and efficiency in the administration of,
 and (B) to prevent and detect fraud and abuse in, such programs and
 operations;  and to provide a means for keeping the Secretary and the
 Congress fully and currently informed about problems and deficiencies
 relating to the administration of such programs and operations and the
 necessity for and progress of corrective actions.  (42 U.S.C. 3521).  To
 insure the independence of the Inspector General, Congress further
 specifically provided that he shall report to and be under the general
 supervision of the Secretary, " . . . but shall not be under the control
 of, or subject to supervision by, any other officer of the Department."
 (42 U.S.C. 3522);  and, inter alia, gave the Inspector General
 independent personnel authority (42 U.S.C. 3525(a)(6)).
 
    Second, the certification included only " . . . employees of . . .
 Region VII . . . " and upon their transfer, on January 9, 1983, to the
 OIG the employees in question ceased to be employees of Region VII or of
 any Principal Operating Component (POC) of Region VII.  I am fully aware
 that each POC of Region VII is part of a POC which is nationwide in
 scope;  nevertheless, within the meaning of the Certification and the
 parties' Agreement, employees of the POCs are employees of Region VII;
 and the Regional Director of Region VII has been given authority to
 enter into labor agreements on behalf of regional employees who work for
 the various POCs.  See, also, Department of Health and Human Services,
 13 FLRA No. 7, 13 FLRA 39, 40-41 (1983).  The Regional Director has no
 authority whatever over employees of OIG (see, 42 U.S.C. 3522;  Tr. 39,
 209, Res. Exh. 27).  On January 9, 1983, the employees in question
 became employees of the OIG, which is wholly independent of Region VII;
 were immediately subject to a competitive area wholly separate and apart
 from Region VII;  were immediately subject to supervision and control of
 the OIG, which is wholly separate and independent from all other parts
 of the Department;  were immediately subject to the independent
 personnel authority of the Inspector General;  immediately became
 subject to the OIG career board;  and their mission and function
 changed.  As Mr. Patton stated, in the view of the Health Care Financing
 Administration, "The role of the Office of the Inspector General is to
 oversee HCFA.  And HCFA's role was to oversee the contractors and
 carriers." (Tr. 325).  That is, as part of the OIG, their function
 shifted to oversight and evaluation of Health Care Financing
 Administration's performance;  employee investigations became a new
 major duty;  they assumed a new primary duty under the Civil Monetary
 Penalties Act;  they acquired the statutory independence given to the
 OIG, assumed new investigatory authority;  including working with OIG's
 Office of Investigation, and were given new "tools" to carry out their
 investigatory duties, including the power to issue subpoenas and to
 place witnesses under oath.  Accordingly, upon transfer to the OIG they
 ceased to be part of Region VII for any purpose and became, instead,
 part of the wholly independent OIG.  The fact that the Secretary,
 pursuant to 42 U.S.C. 3525(c), provided office space in Region VII or
 other equipment, supplies, facilities and services, does not affect in
 any manner their statutory independence as part of the OIG.  Moreover,
 the office space and personnel services provided by Region VII has, or
 shortly will, terminate and the transferred employees in question will
 be serviced by the Personnel Office in Washington, DC and they will be
 located in office space wholly removed from their present location in
 space of Region VII.  Therefore, because the transferred employees in
 question ceased to be " . . . employees of . . . Region VII. . . . "
 they no longer were included in the certified bargaining unit.
 
    Third, by clear inference and analogy, the transferred employees in
 question, as employees of OIG, are excluded by virtue of the nature of
 their work and by the fact that they became upon transfer employees of
 the Inspector General at the headquarters level.  The Certification
 excluded, inter alia, "all HEW (now HHS) Audit Agency employees".  The
 record shows that at the time of the certification, June 15, 1979, the
 Audit Agency was, and had been since 1976, part of the OIG.
 Consequently, although Mr. Hester, President of Chapter 217 testified
 that "The Office of the Inspector General was not discussed at all" (Tr.
 412) in the negotiations of the parties' 1981 Agreement, it is apparent
 that action was taken to exclude one of the two parts of the OIG present
 in Region VII, quite probably, in light of Mr. Hester's testimony, by
 adopting the language of the certification without discussion.  As to
 the other part of the OIG present in Region VII, the Office of
 Investigation (OI), the Charging Party, NTEU, states in its brief.
 
          "OI employees were not excluded by the language of the
       certification or the contract because they were already excluded
       from the unit by virtue of their not being employees of HHS,
       Kansas City.  They were employees of the Inspector General at the
       headquarters level." (NTEU Brief, p. 10).
 
 Of course, the record shows that, on January 9, 1983, the employees in
 question ceased to be employees of HHS, Kansas City, and, like OI
 employees, became employees of the Inspector General at the headquarters
 level.  In actuality, this is more properly a reflection of their not
 being part of the employee unit for bargaining purposes;  but precisely
 the same rational applies to all employees of the OIG as all are
 employees of the Inspector General at the headquarters level.
 
    The Certification also excluded, inter alia, "all employees of the
 SSA Office of Quality Assurance (Assessment) and the SSA Office of
 Security and Program Integrity (Assessment)" which in the Agreement
 became "all employees of the SSA Office of Field Assessment".  Thus, all
 personnel, specifically:  Audit and Investigations (OIG) and SS Quality
 Assurance and Program Integrity (in the Agreement SS Field Assessment),
 engaged in oversight and/or investigation of agency performance either
 were not included in, or were specifically excluded from, the bargaining
 unit.  By analogy, the employees in question, when their mission and
 function changed to oversight and investigation of Health Care Financing
 Administration's performance, including employee investigations, were
 excluded because the nature of their work is indistinguishable from the
 nature of the work of the excluded employees.
 
    As I find that the employees transferred to the OIG ceased to be part
 of the bargaining unit on January 9, 1983, when their transfer became
 effective, it is neither necessary nor appropriate in this unfair labor
 practice complaint proceeding to decide whether Sec. 12(b)(7) of the
 Statute precludes collective bargaining as to all employees of the OIG.
 As noted at the outset, in a complaint proceeding the certification as
 it exists is controlling and may not be changed, notwithstanding that,
 as here, unit determinations, i.e., resolution of disputes concerning
 the inclusion or exclusion of particular employees in the certified
 unit, can and must be made.  What can, or should, constitute an
 appropriate bargaining unit are matters to be resolved in a unit
 determination proceeding, not in a complaint proceeding.  Nevertheless,
 if I misconstrue the scope of the complaint proceeding and if, contrary
 to my determination that the employees in question ceased to be part of
 the bargaining unit as certified, upon their transfer to the OIG, the
 transferred employees were not otherwise excluded, I would find that the
 particular employees could not, pursuant to Sec. 12(b)(7), be included
 in the bargaining unit.  Sec. 12(b)(7) provides:
 
          "(b) . . . nor shall a unit be determined to be appropriate if
       it includes--
 
                                .  .  .  .
 
          "(7) any employee primarily engaged in investigation or audit
       functions relating to the work of individuals employed by an
       agency whose duties directly affect the internal security of the
       agency, but only if the functions are undertaken to ensure that
       the duties are discharged honestly and with integrity." (5 U.S.C.
       7112(b)(7)).
 
 Upon their transfer to the OIG's Office of Health Financing Integrity,
 the duties of the employees in question became both "investigation" and
 "audit" within the meaning of Sec. 12(b)(7).  Their function shifted to
 the oversight of the Health Care Financing Administration itself,
 including oversight of employees to insure that their duties are
 discharged honestly and with integrity.  As a major new component of the
 OIG, the Office of Health Financing Integrity was created "to be the
 focal point of activities designed to control fraud, abuse and waste in
 the Department's health care financing programs. . . . ", Statement of
 Organization, Functions and Delegations of Authority, 48 Fed.Reg. 4919
 (February 3, 1983) (G.C. Exh. 1(o), Jt. Exh. 14);  and they assumed a
 major new duty, that of employee investigation.  The record is clear
 that upon their transfer to the OIG the employees in question primarily
 engaged in investigation or audit functions;  that such functions relate
 to the work of individuals whose duties directly affect the internal
 security of the agency;  and that such functions are undertaken to
 ensure that the duties are discharged honestly and with integrity.
 Accordingly, pursuant to Sec. 12(b)(7), they may not be included in the
 certified bargaining unit.  U.S. Department of Labor, Office of
 Inspector General, Region I, Boston, Massachusetts, 7 FLRA No. 141, 7
 FLRA 834 (1982).  Unlike the Department of Labor Inspector General, the
 OIG does not conduct external audits of contractors or carriers;  but,
 rather, oversees the Health Care Financing Administration, while Health
 Care Financing Administration oversees the contractors and carriers.  It
 is true that the Authority in the Department of Labor case, supra,
 referred to review of "employee information as travel vouchers, payroll
 records, time and attendance records and GSA car vouchers", which,
 certainly, the record does not show was addressed;  but clearly the
 Authority recognized the broader function, namely, that:
 
          " . . . The employees in the Office of Audit are responsible
       for the conduct of audits of Department of Labor programs and the
       employees who run these programs, potentially auditing to uncover
       employee fraud, misuse of funds, or malfeasance." (7 FLRA at 835).
 
 Accordingly, the assertion of the General Counsel that,
 
          " . . . the oversight of HCFA's program responsibilities which
       may be carried on by Health Financing Integrity amounts to
       internal audit functions within the meaning of Section
       7112(b)(7)." (G.C. Brief, p. 27)
 
 is rejected as both legally and factually untenable.
 
    Having found that the employees in question ceased to be part of the
 certified bargaining unit upon their transfer to the Office of the
 Inspector General, Respondents did not violate Secs. 16(a)(5), or (1)
 when, on and after January 9, 1983, they refused to recognize NTEU as
 the representative of the transferred employees and, because the
 provisions of the agreement providing for dues withholding ceased to
 apply, Respondents did not violate Secs. 16(a)(8) or (1) of the Statute
 by terminating the dues allotments.  North Carolina Air National Guard,
 Charlotte, North Carolina, 4 FLRA No. 44, 4 FLRA 348 (1980).
 Accordingly, having found that Respondents did not violate the Statute
 as charged, it is recommended that the Authority adopt the following:
 
                                   ORDER
 
    The Complaint in Case No. 7-CA-30131, and the same is hereby,
 dismissed.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  November 21, 1983
    Washington, DC
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Authority finds it unnecessary to pass upon the Judge's
 finding that the employees involved herein should be excluded from the
 bargaining unit because they were involved in "investigation" and
 "audit" duties within the meaning of section 7112(b)(7) of the Statute.
 
 
    /2/ For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 Statute reference, e.g., Section 7116(a)(5) will be referred to, simply,
 as "Sec. 16(a)(5)."
 
 
    /3/ I am aware that the certification (G.C. Exh. 1(o), Jt. Exh. 1),
 and Recognition and Coverage clause of the Parties' collective
 bargaining agreement (G.C. Exh. 1(o), Jt. Exh. 2, Art. 1, Section 1) are
 slightly different.  Thus, the certification excluded:
 
          "All employees of SSA Office of Central Operation, all
       employees of the SSA Office of Quality Assurance (Assessment) and
       the SSA Office of Security and Program Integrity (Assessment) . .
       . ." (Jt. Exh. 1) (The remaining portion being the same in each
       document.)
 
 On the other hand, the Recognition and Coverage clause excluded:
 
          "All employees of the SSA Office of Central Operations, all
       employees of the SSA Office of Field Assessment . . . ." Jt. Exh.
       2, Art. 1, Section).
 
 No party has relied on somewhat different exclusion of the Agreement in
 contrast to the exclusion of the certification.
 
 
    /4/ In actuality, by Order dated July 21, 1983 (G.C. Exh. 1(m)) th