23:0464(67)CU - DOL and National Council of Field Labor Locals, AFGE; Labor Management Service Administration, DOL and NUCO, Independent; DOL and AFGE Local 12 -- 1986 FLRAdec RP



[ v23 p464 ]
23:0464(67)CU
The decision of the Authority follows:


 23 FLRA No. 67
 
                                            Case No. 3-CU-40017
 
 UNITED STATES DEPARTMENT OF LABOR
 Activity/Petitioner
 
 and
 
 NATIONAL COUNCIL OF FIELD LABOR 
 LOCALS, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Labor Organization
 
                                            Case No. 3-CU-40018
 
 LABOR MANAGEMENT SERVICES 
 ADMINISTRATION, UNITED STATES 
 DEPARTMENT OF LABOR
 Activity/Petitioner
 
 and
 
 NATIONAL UNION OF COMPLIANCE 
 OFFICERS, INDEPENDENT
 Labor Organization
 
                                            Case No. 3-CU-40019
 
 UNITED STATES DEPARTMENT OF LABOR
 Activity/Petitioner
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 12, AFL-CIO
 Labor Organization
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This consolidated case is before the Authority as a result of our
 order granting the applications for review of the Regional Director's
 Decision and Order on Petitions for Clarification of Unit filed by the
 United States Department of Labor (DOL) and the National Union of
 Compliance Officers, Independent (NUCO), and NUCO's request for a stay
 in the above-named cases.  In his Decision, the Regional Director
 dismissed the petitions in Case Nos. 3-CU-40017 and 3-CU-40019 on the
 basis that the DOL 1984 reorganization which occurred had no effect on
 the employees involved, but granted the petition in Case No. 3-CU-40018
 so as to exclude certain employees from the established unit pursuant to
 section 7112(b)(4) of the Statute /1/ because they are engaged in
 administering provisions contained in section 7120 of the Statute
 concerning the standards of conduct for labor organizations.  DOL and
 NUCO contended that their applications for review should be granted on
 the grounds that the Regional Director either departed from Authority
 precedent or in the absence of Authority precedent made erroneous
 factual determinations on substantial issues which prejudicially
 affected their rights.
 
    The Authority granted these applications for review on the basis that
 it appeared that a compelling reason existed pursuant to the provisions
 of section 2422.17(c)(1) of the Authority's Rules and Regulations.  /2/
 Supplementary briefs were filed by DOL, NUCO and American Federation of
 Government Employees, Local 12, AFL-CIO (AFGE).  The three Clarification
 of Unit (CU) petitions under consideration arise out of DOL's 1984
 reorganization in which the Labor Management Services Administration
 (LMSA) was abolished and concern the effects of that reorganization on
 the bargaining unit of LMSA employees represented by NUCO.  The
 Authority finds, contrary to the Regional Director, that the Office of
 Pension and Welfare Benefit Programs (OPWBP) employees were severed from
 and no longer share a community of interest with the other employees in
 the NUCO unit and should be excluded therefrom.  The Authority further
 finds contrary to the Regional Director that pursuant to section
 7135(a)(1) of the Statute, the previous unit represented by NUCO which
 now includes only Office of Labor-Management Standards (OLMS) employees
 continues to exist.
 
                              II.  Background
 
                         A.  Previous Recognitions
 
    In 1962, AFGE was recognized as the exclusive representative of the
 DOL employees in the Washington, D.C. Metropolitan area;  and in 1965,
 the National Council of Field Labor Locals, American Federation of
 Government Employees, AFL-CIO (NCFLL) was recognized as the exclusive
 representative of all eligible field employees of the DOL outside the
 Washington, D.C. Metropolitan area.  NUCO came into existence in the
 early 1970's to represent employees of LMSA who otherwise could not have
 been represented because of the restrictions contained in section 3(d)
 of Executive Order 11491.  /3/ NUCO was certified on October 18, 1972 as
 the exclusive representative of the field employees of LMSA.
 
                       B.  Reorganization and Change
 
    Prior to the January 1984 DOL reorganization, LMSA administered the
 OPWBP and Office of Labor Management Standards Enforcement (OLMSE)
 programs, designated as the PW and LM tracks, respectively, through a
 field organization of Regional, District and Resident offices.  LMSA
 investigators were assigned to either the PW or LM tracks.  On January
 20, 1984, the Secretary of Labor issued an Order separating the OPWBP or
 Employee Retirement Income Security Act (ERISA) program from LMSA,
 making OPWBP an independent activity (under the same name) which reports
 directly to the Secretary.  Thereafter, to complete the reorganization,
 the Secretary on May 3, 1984, issued an Order which formally abolished
 LMSA, and established the OLMS with its own Assistant Secretary to
 replace OLMSE.  As a result of the reorganization, the PW field
 employees were incorporated into the OPWBP field organization and the
 remaining LM field employees were incorporated into the OLMS field
 organization.  While all employees of OPWBP and OLMS at both the
 headquarters and the field levels continued to be located in the same
 place, the record indicates the work processes of the two components
 were not integrated and that their employees did not interchange.  The
 effects of the reorganization were:  to remove OPWBP from LMSA and make
 it a separate independent activity;  to abolish LMSA;  and to
 incorporate the remaining residual LM employees of LMSA into OLMS.
 
    As a result of the reorganization, the pension program and PW
 investigators were transferred intact to the new independent activity.
 The primary job function of PW investigators, which was unchanged by the
 reorganization, is to investigate allegations of fiduciary breaches of
 title I of ERISA and certain sections of title 18 of the United States
 Code.  Thirty percent of the fiduciaries they investigate are union
 officials, including some from federal sector unions, thirty percent of
 their cases involve Taft-Hartley or joint plans, and five to seven
 percent involve union plans.
 
    Following the reorganization, the LM investigators of the OLMS
 continue to be responsible, as before, for the investigation of several
 types of cases arising under the Labor-Management Reporting and
 Disclosure Act (LMRDA), including election cases, compliance audit cases
 and embezzlement cases.  They are also responsible for investigation of
 all standards of conduct cases filed pursuant to section 7120 of the
 Statute.
 
                  III.  Regional Director's Determination
 
    The Regional Director in his Decision and Order on Petitions for
 Clarification of Unit found in Case Nos. 3-CU-40017 and 3-CU-40019 that
 despite the reorganization which abolished LMSA and split employees
 within the PW and LM tracks into two separate independent activities,
 the field and headquarters employees of the OPWBP currently represented
 by NUCO did not accrete into the units represented by NCFLL and AFGE,
 but rather continued to be included in the pre-reorganization unit
 represented by NUCO.  He based his findings on the following factors:
 (1) the record evidence revealed that the reorganization had little or
 no effect on employees' day-to-day work, their overall working
 conditions or their immediate supervision;  (2) there was no evidence
 provided by the Activity to demonstrate that these employees' accretion
 into either the NCFLL or AFGE bargaining units would necessarily promote
 effective dealings and efficiency of agency operations;  and (3) there
 is a long history of effective collective bargaining between LMSA and
 NUCO, and DOL has not changed its handling of personnel or labor
 relations matters for OPWBP investigators.  /4/
 
    In Case No. 3-CU-40018 the Regional Director found that the OLMS
 investigators currently represented by NUCO should be excluded from that
 unit pursuant to section 7112(b)(4) of the Statute because the OLMS
 investigators are engaged in administering section 7120 of the Statute
 (standards of conduct for labor organizations) which, according to
 section 7112(b)(4) of the Statute, requires their exclusion from the
 NUCO unit or any other appropriate unit of employees under the Statute.
 The Regional Director rejected NUCO's argument that section 7135(a)(1)
 of the Statute /5/ allowed the continuation of the unit of OLMS
 investigators.  He found that section 7135(a)(1) permitted continuation
 only until the issue was raised, at which point the preexisting unit
 would be evaluated to ascertain whether continued recognition was
 consistent with the Statute.  As he found that section 7112(b)(4) of the
 Statute precluded OLMS investigators from being included in a unit
 because they administer provisions of the Statute, he ordered them
 excluded from the NUCO unit.
 
                          IV.  Parties' Positions
 
    DOL contends with regard to Case Nos. 3-CU-40017 and 3-CU-40019 that
 the employees in OPWBP do not administer any provision of law relating
 to labor-management relations within the meaning of section 7112(c) of
 the Statute, /6/ and therefore should be included in the DOL's
 bargaining units represented by NCFLL and AFGE.  NUCO argues that as no
 real change was brought about by the reorganization and the employees of
 OPWBP are precluded from inclusion in units with other employees
 pursuant to section 7112(c) of the Statute, the employees of OPWBP
 should continue as a viable unit represented by NUCO.  AFGE objects to
 the consideration of any unit accretion issue raised by the DOL on the
 basis that, at the time of the hearing, personnel aspects of the
 reorganization creating the new OPWBP activity had not as yet been
 implemented.
 
    In Case No. 3-CU-40018, DOL agrees with the Regional Director that
 the OLMS investigators should be excluded from the NUCO unit pursuant to
 section 7112(b)(4) of the Statute as they administer provisions of the
 Statute.  NUCO contends that the Regional Director erred in ignoring the
 express provisions of the "grandfather clause" in section 7135(a)(1) of
 the Statute.  While NUCO concedes that the OLMS investigators administer
 section 7120 of the Statute, it argues that section 7135(a)(1) was
 intended to protect representational relationships established before
 the effective date of the Statute, and that if section 7112(b)(4) is
 allowed to vitiate established units which predate the Statute, the
 intent of section 7135(a)(1) to protect such units would not be
 effectuated.  AFGE agrees with NUCO concerning section 7135(a)(1) of the
 Statute.
 
                               V.  Analysis
 
    The Regional Director's Decision with respect to the employees of the
 OPWBP assumes that the DOL reorganization had only a minimal effect on
 the OPWBP employees and NUCO's bargaining relationship.  Based on
 established precedent and the particular circumstances of the case, the
 Authority disagrees with this assumption.  We find that the employees of
 OPWBP no longer share a community of interest with the other employees
 in the existing unit represented by NUCO.  We note particularly that the
 OPWBP employees are now part of a new separate activity;  are under
 separate supervision and authority;  and have little or no contact,
 interchange or transfer with the other employees represented by NUCO.
 We find that as a result of their removal from LMSA, the OPWBP employees
 constitute a functionally distinct group of employees who no longer
 share a community of interest with the employees of the existing NUCO
 unit.  Accordingly, the Authority will order that NUCO's certification
 be clarified to exclude the OPWBP employees.  See United States
 Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 11
 FLRA 591 (1983);  Department of Defense, Department of the Army,
 Lexington-Blue Grass Depot Activity, Lexington, Kentucky, 8 FLRA 699
 (1982);  and Department of the Treasury, Bureau of the Mint, 7 FLRA 136
 (1981).
 
    As to DOL's contention in Case Nos. 3-CU-40017 and 3-CU-40019 that
 the OPWBP field and headquarters employees who had been represented by
 NUCO in the pre-reorganization LMSA unit accreted into units represented
 by NCFLL and AFGE, the Authority concludes that the OPWBP investigators
 administer statutes relating to labor-management relations within the
 meaning of section 7112(c) of the Statute and therefore cannot be
 represented by NCFLL or AFGE.  The OPWBP investigators investigate
 allegations of fiduciary breaches of title I of ERISA, and a
 considerable portion of their work involves review of joint
 labor-management administered plans established pursuant to the
 Labor-Management Relations Act, 29 U.S.C. Section 186(c).  Approximately
 thirty percent of OPWBP investigations concern union officials,
 including some from federal sector unions.  For these reasons, we find
 that the OPWBP investigators administer statutes relating to
 labor-management relations within the meaning of section 7112(c) of the
 Statute and thus cannot be included in units represented by NCFLL or
 AFGE.
 
    In Case No. 4-CU-40018 the Regional Director found that section
 7112(b)(4) of the Statute precluded the OLMS investigators from
 remaining in the established unit.  He interpreted section 7135(a)(1) to
 permit the continuation of an existing unit only until an issue was
 raised as to its continuance.  Based on the legislative history of
 section 7135(a)(1) and precedent, the Authority disagrees.  The
 legislative history of the Statute indicates the intent of section
 7135(a)(1) as follows:
 
          This subsection reflects the intention that successful on-going
       labor-management relationships shall not be disputed by enactment
       of title VII.  Since the purpose of this title is principally to
       encourage the development of successful labor-management programs,
       it would have been inappropriate for this new legislation,
       designed to encourage collective bargaining, to operate in such a
       way as to thwart successful collective bargaining programs already
       in existence. . . .  /7/
 
    To this end, consistent with section 7135(a)(1), we have required an
 activity to continue to recognize units that were appropriate under
 Executive Order 11491, as amended, where we found that a reorganization
 did not substantially change the character and scope of the existing
 units.  Federal Aviation Administration, Aviation Standards National
 Field Office, 15 FLRA 60 at 64 (1984).
 
    In our view, the exclusion of OPWBP employees as a result of the
 reorganization did not substantially change the scope and character of
 the unit historically represented by NUCO, which now consists of all
 OLMS employees.  Thus, with the removal of the OPWBP function and
 personnel and the subsequent abolishment of LMSA, the remaining former
 LMSA employees were transferred intact into the OLMS which was
 established to handle the function previously handled by OLMSE under
 LMSA.  OLMS, with minor changes in the field structure, continues to
 function as did OLMSE prior to the reorganization of LMSA, and the
 Assistant Secretary of Labor for OLMS occupies the position vacated by
 the Assistant Secretary of Labor for LMSA.  /8/
 
    In sum, we find in Case No. 3-CU-40018, pursuant to section
 7135(a)(1), that NUCO continues to represent a viable unit of former
 LMSA employees certified in 1972 which currently includes only OLMS
 employees.  Accordingly, the DOL must continue to recognize and bargain
 with NUCO as the exclusive representative of the remaining unit now
 entitled OLMS.
 
                              VI.  Conclusion
 
    Based upon the findings above, we will order that the Clarification
 of Unit (CU) petitions filed by DOL in Case Nos. 3-CU-40017 and
 3-CU-40019 seeking to accrete the OPWBP field and headquarters employees
 who had been represented by NUCO in the pre-reorganization LMSA unit
 into units represented by NCFLL and AFGE be dismissed.  Further, we will
 order that NUCO's certification be clarified to exclude the OPWBP
 employees.  We will also order that the petition filed by DOL in Case
 No. 3-CU-40018 be dismissed, as we have found that the remaining unit of
 OLMS employees represented by NUCO continues to be a viable unit.  /9/
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the unit of employees at the United States
 Department of Labor sought to be clarified, for which the National Union
 of Compliance Officers, Independent, was certified as exclusive
 representative on October 18, 1972, be, and it hereby is, clarified by
 excluding from said unit the employees in the Office of Pension and
 Welfare Benefit Programs.
 
    IT IS FURTHER ORDERED that the petitions in Case Nos. 3-CU-40017, and
 3-CU-40019 in all other aspects, and the petition in Case No. 3-CU-40018
 be, and they hereby are, dismissed.
 
    Issued, Washington, D.C., September 26, 1986.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       /s/ Jean McKee
                                       Jean McKee
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7112(b)(4) of the Statute provides:
 
          Section 7112.  Determination of appropriate units for Labor
       organization representation
 
                       . . . . . . .
 
 
          (b) A unit shall not be determined to be appropriate under this
       section solely on the basis of the extent to which employees in
       the proposed unit have organized, nor shall a unit be determined
       to be appropriate if it includes --
 
                       . . . . . . .
 
 
          (4) an employee engaged in administering the provisions of this
       chapter(.)
 
    (2) Section 2422.17(c)(1) provides:
 
          Section 2422.17.  Application for review of a Decision and
       Order of the Regional Director.
 
          (c) The Authority may grant an application for review only
       where it appears that compelling reasons exist therefor.
       Accordingly, an application for review may be granted only upon
       one or more of the following grounds:
 
          (1) That a substantial question of law or policy is raised
       because of (i) the absence of, or (ii) a departure from, Authority
       precedent(.)
 
    (3) Section 3(d) of Executive Order 11491 provided that:
 
          Employees engaged in administering a labor management relations
       law or this Order shall not be represented by a labor organization
       which also represents other groups of employees under the law or
       this Order, or which is affiliated directly or indirectly with an
       organization which represents such a group of employees.
 
    (4) Additionally, the Regional Director found in Case No. 3-CU-40019
 that several employees in the Office of the Solicitor, Labor-Management
 Laws Division, the Elections and Trusteeships and Technical Assistance
 and Education Branches of the Technical Assistance and Disclosure
 Section of OLMS were not engaged in administering the Statute within the
 meaning of section 7112(b)(4).  On this basis, he concluded that they
 should remain in the unit represented by AFGE and dismissed that part of
 the petition.  No application for review was filed with respect to the
 Regional Director's finding that these employees should remain in the
 unit represented by AFGE.  The action has become final and is not at
 issue.
 
    (5) Section 7135(a)(1) of the Statute provides:
 
          Section 7135.  Continuation of existing laws, recognitions,
       agreements, and procedures
 
          (a) Nothing contained in this chapter shall preclude --
 
          (1) the renewal or continuation of an exclusive recognition,
       certification of an exclusive representative, or a lawful
       a