17:0058(16)UC - Justice and AFGE -- 1985 FLRAdec RP
[ v17 p58 ]
The decision of the Authority follows:
17 FLRA No. 16 U.S. DEPARTMENT OF JUSTICE Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Petitioner Case No. 3-UC-17 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 American Federation of Government Employees, AFL-CIO (AFGE) filed the instant petition seeking to consolidate 11 units of employees in the U.S. Department of Justice (Agency) which it represents exclusively. /1/ The units presently represented by AFGE and covered by the petition are set forth in the Appendix. /2/ AFGE describes the proposed consolidated unit as including the following existing bargaining units exclusively represented by AFGE: All professional and nonprofessional employees of the Bureau of Prisons and Prison Industries, Inc. (Federal Prison System (FPS)); all nonprofessional employees of the Immigration and Naturalization Service, including the Border Patrol (INS); all nonprofessional employees of the U.S. Marshals Service (USMS); all professional and nonprofessional employees of the Board of Immigration Appeals (BIA); all nonprofessional employees of the Community Relations Service (CRS); all professional and nonprofessional employees of the U.S. Parole Commission (USPC); and all nonprofessional employees of the U.S. Attorney Offices in the Federal District of New Jersey and the Federal Western District of New York. The Agency contends that the proposed consolidated unit is not appropriate because it does not meet the three criteria for an appropriate unit set forth in section 7112(a)(1) of the Statute. /3/ In addition, the Agency contends that the petition should be dismissed because the proposed consolidated unit includes employees of the United States Parole Commission, which is an independent agency attached to the Agency solely for administrative purposes. The Agency is a department in the Executive branch under the overall direction of the U.S. Attorney General and his Deputy. According to the record in this case, the Agency has a total of approximately 56,000 employees organized into 6 "bureaus," 14 "offices," 1 "board" and 6 "divisions." The "offices," "board," and "divisions" (OBDs) are collectively considered as a "bureau" for the purposes of administrative support such as personnel and labor relations functions, under the direction of the Assistant Attorney General for Administration (AAG/A). However, operational control and mission responsibility remains vested in the respective heads of each of these organizations. Thus, the instant petition would include in the proposed consolidated unit 3 of the 6 established "bureaus" (FPS, INS and USMS), 3 of the 21 organizations in the OBD (BIA, CRS and the 2 U.S. Attorney Offices, which are but a "fragment" of the 95 U.S. Attorney Offices comprising the Executive Office of U.S. Attorneys (EOUSA)) as well as USPC, an independent agency. Such a unit would encompass approximately 17,000 of the Agency's 56,000 employees. Organizationally, the FPS, INS, USMS, BIA, USPC and EOUSA report on program matters to the Attorney General. The CRS, on the other hand, reports directly through the Deputy Attorney General to the Attorney General. As noted above, USPC was established in 1976 as an "independent agency" within the Agency, and was granted the authority for totally independent personnel and budget functions. /4/ The missions differ among the various organizational components of the proposed consolidated unit. For example, the mission of the INS is to administer and enforce immigration and nationality laws; the mission of FPS is to guard Federal prisons and provide rehabilitation for prisoners; the mission of the U.S. Attorney Offices is to represent the Federal Government in civil and criminal actions; and the mission of CRS is to provide assistance in resolving disputes relating to discrimination. As a consequence, the employees in each of the components of the proposed consolidated unit have job qualifications, duties and working conditions which are not related or equivalent to those of employees in other components. /5/ For example, employees in the INS are concerned with the police activities of patrolling the nation's borders, finding illegal aliens, and resolving conflicts concerning appropriate nationality, while the employees in FPS are involved in guarding and rehabilitating Federal prisoners; the employees of the U.S. Attorney Offices are primarily professionals representing the interests of the Federal government in both criminal and civil matters in various courts of law, while employees of the CRS are basically mediators in disputes concerning civil rights, whose purpose is to avoid litigation. Thus, the employees in the various components have little in common in terms of working conditions, qualifications or duties due to the diverse missions and goals of each of the components. The record further establishes that there are no personnel or labor relations functions at the Attorney General-Deputy Attorney General level of the Agency. Rather, each of the "bureaus" has been delegated full personnel and labor relations authority, which some exercise at the "bureau" level, and some redelegate to subordinate organizational levels. /6/ Moreover, the USPC Chairman exercises full personnel and budgetary authority as a consequence of statutory authorization, /7/ without the Attorney General being involved in any way. In Department of Transportation, Washington, D.C., 5 FLRA 646 (1981), the Authority dismissed petitions to consolidate units noting that section 7112(a)(1) of the Statute requires any unit found appropriate to conform to the three criteria established by that section-- a clear and identifiable community of interest among the employees in the unit, the promotion of effective dealings with, and the efficiency of the operations of, the agency involved. The Authority further noted that section 7112(d) of the Statute, /8/ which provides for the consolidation of existing units into a single more comprehensive unit, requires that such consolidated unit meet the same three criteria required of any proposed unit. In subsequent decisions, the Authority, in making its determinations on the appropriateness of such proposed consolidated units, has considered several factors. Primary among these factors, in determining whether there was a community of interest, were: 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 in the occupational undertakings of the employees in the proposed unit; and the locus and scope of personnel and labor relations authority and functions. /9/ The Authority finds that the employees in the proposed consolidated unit herein do not share a clear and identifiable community of interest. The record establishes that the proposed consolidated unit encompasses three of the six bureaus, fragments of the OBDs, which are organizationally treated as a "bureau," and an independent agency attached to the Agency for administrative purposes only. Most of the employees in the proposed consolidated unit, representing about 31 percent of the total work force of the Agency, have divergent career interests and working conditions, attributable to the diverse missions of their respective organizational components which are involved in the proposed consolidation. Further, the record shows a minimal amount of interchange of employees among the various organizational entities involved herein, and the majority of job classifications and qualifications, as well as the terms and conditions of employment of the employees encompassed by the proposed consolidated unit, relate to the unique functions of the particular organizations in which they are employed. Finally, the record shows that personnel and labor relations authority and functions have been delegated to the "bureau" level or below, and there does not presently exist any official or group of officials authorized to perform such functions Agency-wide. In addition, in the case of the USPC, such functions are totally independent of the Agency and the Attorney General. Under these circumstances, the Authority finds that the petitioned-for consolidated unit would not ensure a clear and identifiable community of interest among the employees involved. Nor can the Authority conclude that either of the two alternative consolidated units suggested by the AFGE at the hearing is appropriate. The first alternative unit is composed of FPS, INS, USMS, BIA, and CRS, eliminating from the proposed unit the USPC and the two U.S. Attorney Offices; the second alternative unit is composed only of FPS, INS and USMS, eliminating, in addition to USPC and the two U.S. Attorney Offices, the BIA and the CRS. The facts herein would not support a finding of appropriateness with respect to either alternative unit. Thus, in either alternative unit, the employees included would have divergent career interests and conditions of employment directly related to the wide variance in the missions of the organizations employing them. Within either of the alternative units suggested, there is minimal interchange, and the job classifications and qualifications, and the general working conditions of the employees, are distinct and related to the unique functions of the organization in which they are employed. Finally, as noted above, the personnel and labor relations functions of the organizations in either of the alternative units historically have been delegated to each component and, in some instances, redelegated to regional and installation levels. In sum, the only principal factor in support of a finding of community of interest appears to be that all these employees are under the general policy direction of the Attorney General. Accordingly, the Authority finds that the proposed consolidated unit, and both of the proposed alternative consolidated units, are not appropriate for the purpose of exclusive recognition under the Statute, and will order that the petition be dismissed. /10/ ORDER IT IS ORDERED that the petition in Case No. 3-UC-17 be, and it hereby is, dismissed. Issued, Washington, D.C. February 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY APPENDIX UNIT #1 - Federal Prison System (FPS) Included: All nonsupervisory GS professional and nonprofessional employees of the Bureau of Prisons and Federal Prison Industries, Inc., Central Office. Excluded: All supervisors, management officials, employees engaged in Federal personnel work in other than a purely clerical capacity, temporary employees on appointments NTE 90 days, confidential employees and guards as defined in Executive Order 11491. UNIT #2 - FPS Included: All employees, Class Act, Wage Board, and Professional, of the Bureau of Prisons and Federal Prison Industries, Inc., shall constitute the unit of recognition for exclusive recognition under Executive Order 10988. Excluded: Any managerial executive, any employee engaged in Federal personnel work in other than a purely clerical capacity, both supervisors who officially evaluate the performance of employees and the employees whom they supervise. All Central Office employees are excluded from the unit of recognition. UNIT #3 - Immigration and Naturalization Service (INS) Included: All nonsupervisory and nonprofessional employees in the Immigration and Naturalization Service. Excluded: All employees assigned to Border Patrol Sectors. UNIT #4 - INS Included: All nonprofessional employees assigned to Border Patrol Sectors, Service-wide. Excluded: All supervisors, professionals, management officials, and employees engaged in Federal personnel work in other than a purely clerical capacity. UNIT #5 - U.S. Marshals Service Included: All nonprofessional employees of the U.S. Marshals Service world-wide including intermittent employees and term Deputies. Excluded: Professional employees, confidential employees, temporary employees with no reasonable expectation of continuous employment, internal investigators, supervisors, management officials, guards as defined in the Order and Federal personnel workers in other than a purely clerical capacity. UNIT #6 - Board of Immigration Appeals Included: All nonsupervisory professional and nonprofessional employees at the Board of Immigration Appeals in Washington, D.C. Excluded: All part-time students, employees engaged in Federal personnel work in other than a purely clerical capacity, management officials, supervisors and guards. UNIT #7 - Community Relations Service Included: All nonprofessional employees of the United States Department of Justice, Community Relations Service. Excluded: All professional employees, management officials, confidential employees, employees engaged in Federal personnel work in other than a purely clerical capacity, and supervisors as defined in Executive Order 11491, as amended. UNIT #8 - Executive Office of U.S. Attorneys (EOUSA) Included: All nonprofessional (staff support) employees of the United States Attorney for the District of New Jersey. Excluded: Professional, managerial, supervisory, and confidential employees, guards, and employees engaged in Federal personnel work in other than a purely clerical capacity. UNIT #9 - EOUSA Included: All nonprofessional employees of the Office of the U.S. Attorney for the Western District of New York. Excluded: Professional employees, employees engaged in Federal personnel work in other than a purely clerical capacity, management officials, supervisors and guards as defined in the Executive Order. Also excluded are the Secretary to the U.S. Attorney, the Secretary to the First Assistant U.S. Attorney, the Administrative Clerk and all employees of the Buffalo Strike Force of the Organized Crime and Racketeering Section. UNIT #10 - U.S. Parole Commission (USPC) Included: All nonprofessional GS employees of the Board of Parole Headquarters except those excluded below. Excluded: Professional employees, confidential employees, employees engaged in Federal personnel work in other than a purely clerical capacity, management officials, guards and supervisors as defined in Executive Order 11491. UNIT #11 - USPC Included: All professional GS employees of the Board of Parole Headquarters except those excluded below. Excluded: Nonprofessional employees, confidential employees, employees engaged in Federal personnel work in other than a purely clerical capacity, management officials, guards and supervisors as defined in Executive Order 11491. --------------- FOOTNOTES$ --------------- /1/ The petition filed by AFGE originally encompassed 15 units of exclusive recognition. However, as a result of events occurring since that time, four units of employees in the Drug Enforcement Administration are no longer represented by AFGE, and they are no longer encompassed within the consolidated unit sought herein. In addition, another unit of exclusive recognition involved herein, a nationwide unit of Border Patrol employees, was the subject of an RO petition filed by the International Brotherhood of Police Officers (IBPO). United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253 (1982), enf. denied sub nom. U.S. Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984). Processing of the instant petition was delayed pending resolution of the question concerning representation. Subsequently, IBPO withdrew its petition, and there is now no longer an impediment to further processing this petition. /2/ In addition, AFGE suggested at the hearing that if the Authority found its proposed consolidated unit inappropriate, it would accept one of two alternative units: The first alternative unit would delete from the consolidation the unit at the U.S. Parole Commission and the units at the U.S. Attorney Offices in New York and New Jersey; the second alternative unit would delete, in addition to the aforementioned units, the units at the Community Relations Service and the Board of Immigration Appeals. /3/ Section 7122(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 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(.) /4/ 18 U.S.C. 4201 - 4218 (1976). /5/ In addition, although a few classifications are common to all of the organizational components of the consolidated unit sought, most classifications in each component are unique to and reflect the mission of that component. /6/ For example, final decisions for all personnel and administrative actions are taken at the level of the Director of USMS, and for most of such actions at the level of the AAG/A for all OBDs. On the other hand, the Director of FPS has redelegated this authority to Regional Directors and Wardens, and the Commissioner of INS has redelegated such authority to Regional Directors, and, in some instances, to District Directors. /7/ 18 U.S.C. 4204(a)(2) (1976). /8/ 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. /9/ See, Headquarters, U.S. Army Materiel Development and Readiness Command, 13 FLRA No. 110 (1984); U.S. Army Materiel and Readiness Command, 11 FLRA No. 36 (1983); Department of the Navy, U.S. Marine Corps, 8 FLRA 15 (1982); Air Force Logistics Command, United States Air Force, Wright-Patterson Air Force Base, Ohio, 7 FLRA 210 (1981); Department of Defense, U.S. Army, Corps of Engineers, 5 FLRA 677 (1981); Army and Air Force Exchange Service, Dallas, Texas, 5 FLRA 657 (1981). /10/ 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, 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. See Department of the Navy, Aviation Supply Office, 12 FLRA No. 92 (1983).