[ v17 p58 ]
17:0058(16)UC
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).