38:0065(10)CU - - Labor, Pension and Welfare Benefits Administration and National Union of Pension Investigators and Auditors, 3-R0-80018; PWBA and AFGE, National Council of Field Labor Locals - - 1990 FLRAdec RP - - v38 p65



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38:0065(10)RO
The decision of the Authority follows:


38 FLRA No. 10

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF LABOR

PENSION AND WELFARE BENEFITS ADMINISTRATION

(Activity)

and

NATIONAL UNION OF PENSION INVESTIGATORS

AND AUDITORS

INDEPENDENT

(Labor Organization/Petitioner)

3-RO-80018

U.S. DEPARTMENT OF LABOR

PENSION AND WELFARE BENEFITS ADMINISTRATION

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

NATIONAL COUNCIL OF FIELD LABOR LOCALS

(Labor Organization/Petitioner)

3-CU-80029

(34 FLRA 138 (1990))

DECISION AND ORDER ON REVIEW

November 8, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated case is before the Authority on an application for review filed by the National Council of Field Labor Locals, American Federation of Government Employees (AFGE). AFGE seeks review of the Regional Director's (RD's) Decision and Order which dismissed AFGE's petition in Case No. 3-CU-80029 and denied its motion to intervene in Case No. 3-RO-80018. AFGE's application seeks review of the RD's finding that the employees involved in Case Nos. 3-CU-80029 and 3-RO-80018 cannot be represented by AFGE pursuant to section 7112(c) of the Federal Service Labor-Management Relations Statute (the Statute).

The Authority granted AFGE's application in U.S. Department of Labor, Pension and Welfare Benefits Administration, 34 FLRA 138 (1990), and asked the parties to submit briefs addressing: (1) whether the provisions of the Employee Retirement Income Security Act of 1974, 29 U.S.C. ºº 1001-1461 (ERISA), administered by the field investigators and auditors of the Pension and Welfare Benefits Administration (Pension and Welfare), constitute "provision[s] of law relating to labor-management relations" within the meaning of section 7112(c) of the Statute; and (2) the applicability of section 7112(c)(1) and (2) to AFGE in light of AFGE's activities and its affiliation with the AFL-CIO. Pursuant to the Authority's request, AFGE, the Department of Labor (Labor) and the National Union of Pension Investigators (NUPIA) submitted briefs.

For the following reasons, we find that ERISA is not a statute relating to labor-management relations within the meaning of section 7112(c) of the Statute and, therefore, AFGE is not prohibited from representing the Pension and Welfare field investigators and auditors (P&W employees). We will remand these cases to the RD to determine if the P&W employees share a community of interest with the employees in AFGE's existing unit and to take action consistent with our decision.

II. Background and Regional Director's Decision

AFGE filed a Clarification of Unit (CU) petition in Case No. 3-CU-80029, seeking to accrete the P&W employees into its existing bargaining unit of all field employees of the Department of Labor, except those employees employed in the Washington, D.C., metropolitan area.

The RD found that the sole issue raised was whether section 7112(c) of the Statute bars AFGE from representing the P&W employees because they administer a "provision of law relating to labor-management relations," within the meaning of section 7112(c). Section 7112(c) provides that an employee who is engaged in administering such a provision of law may not be represented by a labor organization which (1) represents other individuals to whom such provision applies, or (2) is affiliated directly or indirectly with an organization which represents other individuals to whom such provision applies.

The RD noted that in United States Department of Labor, 23 FLRA 464 (1986) (DOL), the Authority dismissed petitions filed by Labor which sought to accrete P&W employees into units represented by AFGE or the American Federation of Government Employees, Local 12, AFL-CIO (Local 12, AFGE). The Authority found that because the P&W employees administered statutes relating to labor-management relations, within the meaning of section 7112(c) of the Statute, they could not be represented by AFGE or Local 12, AFGE.

The RD concluded that AFGE's CU petition constituted a challenge to the Authority's decision in DOL. The RD found that AFGE presented no evidence that the Authority's findings in DOL were "flawed." RD's Decision at 3. The RD found also that AFGE had presented no evidence that subsequent to the issuance of the Authority's decision in DOL, there had been any changes in the job functions of P&W employees which could permit the accretion of these employees to the unit represented by AFGE. Accordingly, the RD dismissed AFGE's CU petition.

On May 31, 1988, NUPIA filed a Petition for Exclusive Representation (RO Petition) in Case No. 3-RO-80018, seeking to represent a unit of P&W employees. AFGE sought to intervene in that case.

In view of his finding in Case No. 3-CU-80029 that P&W employees could not be represented by AFGE under section 7112(c) of the Statute, the RD concluded that there was no basis for granting AFGE's request for intervention in Case No. 3-RO-80018. Therefore, he denied AFGE's request for intervention.

III. AFGE's Application for Review and the Authority's Decision in 34 FLRA 138

AFGE filed a timely application for review of the RD's decision dismissing its petition in 3-CU-80029 and denying its motion to intervene in Case No. 3-RO-80018. AFGE asserted that the application "should be granted because there are extraordinary circumstances warranting reconsideration of an Authority policy as required by [section] 2422.17(c)" of the Authority's Rules and Regulations. Application at 1.

In 34 FLRA 138, the Authority noted that there were extraordinary circumstances warranting reconsideration of the Authority's policy for determining whether a law relates to labor-management relations within the meaning of section 7112(c) of the Statute. The Authority also noted that it was necessary to clarify the analysis and reasoning the Authority will use in interpreting and applying section 7112(c). The Authority granted AFGE's application for review and, as noted previously, requested that the parties submit briefs.

IV. Positions of the Parties

A. AFGE's Position

According to AFGE, "the scope of [section] 7112(c) is limited to laws which relate to the collective bargaining relationship between unions and agencies rather tha[n] any law which simply concerns benefits or protections for employees." Brief at 3, 4. AFGE claims that "[e]mployees who administer provisions of laws which relate to benefits or protections for employees, but which do not involve labor management relations per se, are not deemed to be covered by [section] 7112(c)." Id. AFGE notes that employees of the Equal Employment Opportunity Commission and the Pension Benefits Guarantee Corporation are represented by labor organizations which represent other Federal employees. AFGE also notes that the Assistant Secretary for Labor Management Relations found, in Occupational Safety and Health Review Commission, 8 A/SLMR 408 (1978), that Occupational Safety and Health Administration attorneys were not engaged in administering a labor-management law within the meaning of section 3(d) of Executive Order 11491, as amended.

AFGE claims that ERISA is not a labor relations law but, rather, "is a statute which regulates the funding and administration of employee benefit plans in the private sector." Id. at 6. Therefore, AFGE contends that "no conflict of interest is presented by employees who administer ERISA being represented by a union which also represents employees to whom that law applies." Id. AFGE also asserts that although certain employee benefit plans covered by ERISA are jointly administered by unions and employers in the private sector, the statutory requirements for these plans, which are contained in the Taft-Hartley Amendments to the National Labor Relations Act (29 U.S.C. º 186(c)), are not administered by the P&W employees.

In addition, according to AFGE, section 7112(c) does not preclude any representation of employees who administer provisions of labor-management relations laws within the meaning of the Statute. Rather, AFGE argues that section 7112(c) precludes the representation of these employees only by unions who also represent individuals who are covered by the labor-relations laws involved. Accordingly, AFGE claims that even if ERISA is a labor-relations law, the P&W employees would not be prevented from being represented by AFGE unless AFGE also represented employees who are covered by ERISA. AFGE also contends that, as it represents only employees in the Federal sector, it does not represent other individuals to whom the provisions of ERISA and the Taft-Hartley Amendments to the National Labor Relations Act.

AFGE claims that "within the entire AFGE there is only one administered and approved ERISA plan, a dental trust, in which AFGE employees and AFGE locals can voluntarily participate." Id. at 9. AFGE submits that even if ERISA is a labor-relations law, AFGE National's participation in one plan is not sufficient to preclude representation of the P&W employees.

Finally, AFGE contends that AFGE National's membership in the AFL-CIO does not preclude it from representing the P&W employees. It claims that, as the AFL-CIO's members are national and international unions rather than individuals, the AFL-CIO is not the type of organization referred to in section 7112(c)(2). AFGE also claims that it is not affiliated with any other members of the AFL-CIO.

B. The Department of Labor's Position

The Department of Labor argues that: (1) the P&W employees do not administer statutes relating to labor-management relations; and (2) the accretion of the P&W employees to the existing AFGE unit will insure 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 department.

With respect to its first argument, Labor reiterates AFGE's arguments. Labor claims that the P&W employees do not administer the relevant provisions of the Taft-Hartley Amendments and that ERISA is not a law relating to labor-management relations within the meaning of section 7112(c) of the Statute.

Second, Labor contends that the accretion of the P&W employees into AFGE's unit satisfies the criteria set forth in section 7112(a)(1) of the Statute. Labor claims that the P&W employees share a community of interest with the employees in the unit represented by AFGE because they, like other employees in the AFGE unit, are organizationally and administratively integrated within a subagency of the department. Labor argues that all of these employees share a common mission, common personnel rules and regulations, and administrative policies and practices.

Labor contends that because the P&W employees share a community of interest with the employees in the unit represented by AFGE, and because they are not required by law to be an independent unit, they should be accreted into AFGE's unit. Labor notes that currently, it must negotiate with three unions and that if NUPIA were recognized, it would have to negotiate with four unions. Labor concludes that accreting the P&W employees into the unit represented by AFGE "would avoid unit fragmentation, promote a more comprehensive bargaining structure and, as a consequence, promote more comprehensive bargaining at the level to which the Department of Labor has delegated its labor relations responsibilities." Labor's Brief at 15.

C. NUPIA's Position

NUPIA contends that the RD properly applied the Authority's decision in DOL and that, because the P&W employees "administered statutes relating to labor-management relations within the meaning of section 7112(c) of the Statute, they could not be represented by . . . AFGE." NUPIA's Brief at 1.

V. Analysis and Conclusion

A. ERISA Is Not a Law Relating to Labor-Management Relations

ERISA is found in 29 U.S.C. ºº 1001-1461. 29 U.S.C. º 1001(b) provides as follows:

It is hereby declared to be the policy of this chapter to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.

ERISA authorizes the Secretary of Labor to enforce these fiduciary standards by conducting, among other things, investigations of employee benefit plans. See 29 U.S.C. º 1134(a). The investigative functions are carried out by the P&W employees.

It is clear from the foregoing that the purposes of ERISA are to regulate and investigate the funding and administration of employee benefit plans. Further, the record indicates that the duties of the P&W employees involve the investigation of allegations of fiduciary breaches by individuals who administer employee benefit plans covered by ERISA. In this regard, although the P&W employees may investigate union officials who are acting as fiduciaries for employee benefit plans, including some from Federal sector unions, the P&W employees investigate these union officials only to determine if they are carrying out their fiduciary duties pursuant to ERISA (29 U.S.C. º 1104). Moreover, although the P&W employees review joint labor-management administered benefit plans established pursuant to 29 U.S.C. º 186(c), they review them only to determine if they are in compliance with ERISA. Criminal violations of 29 U.S.C. º 186(c) are investigated by the Department of Justice.

Consistent with the foregoing, we find that ERISA is not a "law relating to labor-management relations" within the meaning of section 7112(c). It is clear that accomplishing the purposes of ERISA may involve the regulation and investigation of labor union officials. That fact, however, does not mean that ERISA is a law relating to labor-management relations. In our view, a law relates to labor-management relations when the law is intended to affect or regulate, in some way, the collective bargaining process or other matters directly affecting the labor-management relationship.

Labor unions as institutions, and labor union officials in their individual and official capacities, are subject to many laws and regulations, including laws pertaining to labor unions as employers. To hold that ERISA constitutes a law relating to labor-management relations solely because it applies to labor unions and their officials would require the same result with respect to such laws as those pertaining to discrimination in employment, wage and hour standards, contributions to political parties and candidates, and payment of taxes, among others. We decline to read the Statute in a manner which would lead to such an incongruous result.

Section 7112(c) of the Statute "was enacted to prevent conflicts of interest and appearance of conflicts of interest which would result from represented employees administering labor laws that apply to other employees from their union." See United States Department of Labor, Pension and Welfare Benefits Administration, 30 FLRA 1229, 1234 (1988) (PWBA), citing the Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-7 at 925. Section 7112(c) "prevents such conflicts by prohibiting employees who administer provisions of labor relations law from being represented by any union who represents other employees to whom such provisions apply." See PWBA, 30 FLRA at 1234. In DOL, 23 FLRA at 471, the Authority concluded that because the P&W employees investigated alleged ERISA plan violations involving Federal sector union officials, including those from AFGE National, a conflict of interest pursuant to section 7112(c) was created.

As noted above, the primary functions of ERISA are to regulate and investigate the funding and administration of employee benefit plans, and the duties of the P&W employees involve the investigations of alleged violations of ERISA. The P&W employees would be involved with AFGE or AFGE National only in the context of investigations of alleged violations of ERISA, not alleged violations of laws relating to collective bargaining or other matters particular to the labor-management relationship. Further, as AFGE National has only one ERISA-approved employee benefit plan, the chance for contact between AFGE National and the P&W employees is minimal.

We conclude, therefore, contrary to our earlier decision in DOL, 23 FLRA at 471, that the P&W employees may be included in a unit represented by AFGE. Moreover, as we find that ERISA is not a law relating to "labor-management relations," within the meaning of section 7112(c) of the Statute, it is unnecessary to address the issue of the applicability of section 7112(c)(1) and (2) to the AFGE in light of AFGE's activities and its affiliation with the AFL-CIO.

Based on the foregoing, we reverse the RD's decision dismissing AFGE's petition in Case No. 3-CU-80029 and denying its motion to intervene in Case No. 3-RO-80018. We will order the RD to reinstate AFGE's petition in Case No. 3-CU-80029 and grant its motion to intervene in Case No. 3-RO-80018, providing AFGE meets the requirements of section 2422.5 of the Authority's Rules and Regulations.

B. Appropriate Action To Be Taken on Petitions

In its petition in Case No. 3-RO-80018, NUPIA seeks to represent a unit of P&W employees. In DOL, the Authority found that "as a result of their removal from LMSA, [the P&W employees] constitute a functionally distinct group of employees[.]" Id. at 471. Based on the above, we find that a unit of P&W employees constitutes an appropriate unit, within the meaning of section 7112(a)(1) of the Statute.

In its petition in Case No. 3-CU-80029, AFGE seeks to accrete the P&W employees into its existing nationwide bargaining unit of all field employees of Labor except employees employed in the Washington, D.C. metropolitan area. As the RD found that AFGE was prohibited from representing the employees involved, the RD did not consider whether the P&W employees shared a community of interest with the employees in AFGE's existing unit. The record before us does not provide a basis on which to make this determination. We will, therefore, remand this issue to the RD to determine whether the P&W employees share a community of interest with the employees in AFGE's existing unit.

In the circumstances of this case, we find that it would not effectuate the purposes of the Statute to order the RD to accrete the P&W employees into AFGE's existing unit if he finds that these employees share