43:0122(12)CU - - HHS Regions II ( NY ), III ( Philadelphia ), IV ( Atlanta ), IV ( Chicago ), VII (Kansas City ), IX ( San Francisco ), and SSA, and AFGE and NTEU - - 1991 FLRAdec RP - - v43 p122



[ v43 p122 ]
43:0122(12)CU
The decision of the Authority follows:


43 FLRA No. 12

FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION II
NEW YORK, NEW YORK
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Labor Organization/Intervenor)

32-CU-00005


DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION III
PHILADELPHIA, PENNSYLVANIA
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Labor Organization/Intervenor)

32-CU-00006

DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION IV
ATLANTA, GEORGIA
(Agency)

and
NATIONAL TREASURY EMPLOYEES UNION
(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Labor Organization/Intervenor)


34-CU-00011

DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION V
CHICAGO, ILLINOIS
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Labor Organization/Intervenor)

35-CU-00009

DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION VII
KANSAS CITY, MISSOURI
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Labor Organization/Intervenor)

37-CU-00015

DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION IX
SAN FRANCISCO, CALIFORNIA
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Labor Organization/Intervenor)

39-CU-00006

SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Labor Organization/Petitioner)

and

NATIONAL TREASURY EMPLOYEES UNION
(Labor Organization/Intervenor)

3-CU-00029

ORDER GRANTING APPLICATION FOR REVIEW

November 14, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the American Federation of Government Employees (AFGE) under section 2422.17(a) of the Authority's Rules and Regulations. In his Decision and Order on Petitions for Clarification of Unit, the Regional Director (RD) clarified the National Treasury Employees Union's (NTEU) bargaining unit to include certain employees of the Social Security Administration (SSA) who previously were part of an AFGE bargaining unit, and dismissed AFGE's petition in Case No. 3-CU-00029 seeking to retain those employees in its established unit.

AFGE seeks review of the RD's decision. The Department of Health and Human Services (HHS) and NTEU filed oppositions to AFGE's application. For the reasons discussed below, we find that AFGE has established that compelling reasons exist for granting the application for review pursuant to the provisions of section 2422.17 of the Authority's Rules and Regulations. Accordingly, we grant the application for review.

II. Background and Regional Director's Decision

HHS is comprised of five Federal agencies: (1) the Office of Human Development; (2) the Public Health Service; (3) the Health Care Financing Administration; (4) the Family Service Administration; and (5) SSA. Organizationally, HHS has 10 regional offices made up of operations divisions and staff divisions. SSA includes six Program Service Centers (PSCs), located in six of HHS's 10 regions, and district and branch (field) offices located throughout the 10 regions.

NTEU is the exclusive representative of a consolidated bargaining unit of all employees in HHS's 10 regional offices, comprised of the staff division of SSA and the operations divisions and staff divisions of the other four HHS agencies (approximately 4200 employees). AFGE is the exclusive representative of a consolidated bargaining unit of all employees in SSA's six PSCs and comprised of the operations and staff support functions of the PSCs (approximately 10,000 employees). AFGE is also the exclusive representative of a consolidated bargaining unit of various SSA field offices throughout the country (approximately 18,000 employees). The National Federation of Federal Employees represents SSA field employees in certain district and branch offices.

Effective December 20, 1990, pursuant to a reorganization by HHS, the administrative and staff employees performing staff support functions at each of the PSCs were transferred from the control of SSA Headquarters, Baltimore, to the control of the respective regions within which they are located. NTEU filed six clarification of unit (CU) petitions, seeking to clarify its consolidated unit of regional office employees by including the PSC administrative and staff employees performing staff support functions who, as a result of the reorganization, were transferred to the respective HHS regional offices (approximately 328 employees).

Prior to the reorganization, each PSC, headed by a Director, was autonomous and self-supporting in terms of its daily operations and staff support functions, and reported directly to SSA Headquarters, Baltimore. Each PSC had a Director of Operations who was responsible for the payment and service to beneficiaries, and a Director of Management who was responsible for the staff support functions of the PSC. As a result of the reorganization, the Director of Operations and Director of Management positions were abolished in the PSCs. Three new positions were created in each of the six respective HHS regional offices to take the place of the former PSC directors. Operations functions now come under the Assistant Regional Commissioner for Program Center Operations (ARC-PCO); staff support functions, separated to reflect changes in functional responsibility, now come under the Assistant Regional Commissioner for Management and Budget (ARC-M&B) or the Assistant Regional Commissioner for Program Operation and Systems (ARC-POS).

As a result of the reorganization, all PSC employees "were organizationally and operationally transferred" to the regional offices. RD's Decision at 5. The employees performing operations functions who had reported to the Director of Operations, except for employees in the Systems Operations and Methods Branch (SOMB), now report to the ARC-PCO, which is primarily responsible for PSC operations. The administrative and staff employees performing staff support functions who had reported to the Director of Management, except for employees in the Management Analyses Branch (MAB), now report to the ARC-M&B, which provides staff support to the PSCs as well as SSA field offices. The employees performing the SOMB and MAB functions now report to the ARC-POS, which provides management information and systems analysis functions for the PSCs as well as SSA field offices.

By its six petitions, NTEU sought to accrete to its consolidated unit the administrative and staff employees, in each of the six respective HHS regions, who now report to the ARC-M&B and the ARC-POS, as well as the administrative employees who work in the immediate office of the ARC-PCO. The parties agree that the employees in the PSCs who report to the ARC-PCO continue to be represented by AFGE in its PSC bargaining unit. By its petition, AFGE sought to retain in its PSC unit all the employees sought by NTEU.

The record reveals that approximately 328 administrative and staff employees were transferred as a result of the reorganization. Only a small number of PSC employees were physically relocated to regional offices. The location of regional offices and PSCs was not changed. In one region (Kansas City), the PSC and the regional office are located in the same building. In one region (Atlanta), the regional office is located in Atlanta, while the PSC is located approximately 100 miles away, in Birmingham, Alabama. In the remaining four regions (New York, Philadelphia, Chicago, and San Francisco), the regional offices and PSCs are located in the same city but in separate buildings.

The RD found that, since the reorganization: (1) "the conditions of employment of the disputed employees are now similar, in significant ways, to other regional office employees as a result of their having been organizationally and operationally integrated into the regional offices" (id. at 10-11); (2) the transferred employees "share the same direct supervision in common [with] and perform the same job duties and functions" as other regional office employees (id. at 11); and (3) the employees are "governed by the same personnel and labor relations policies and practices administered by the regional personnel office" as are other regional office employees (id.).

The RD found that the employees sought by NTEU "no longer have a community of interest with the PSC employees represented by AFGE who perform operations functions, but instead share a community of interest with other regional office NTEU represented employees who report to the same Assistant Regional Commissioners." Id. The RD noted that "the purpose of the reorganization was to consolidate administrative, support and staff functions in order to eliminate duplication of effort and managerial functions." Id. The RD found that "the evidence established that the disputed employees perform administrative and support functions essentially indistinguishable from those of the regional employees in the NTEU unit." Id. The RD also noted "particularly that the employees in question were [administratively] transferred to the regional offices in conjunction with a realignment and consolidation of certain functions . . . and that NTEU's representation of all employees performing administrative, support and staff functions in the regional offices has historically resulted in effective dealings[.]" Id. at 12.

The RD concluded that "accreting the disputed employees to the consolidated unit represented by NTEU will promote effective dealings and the efficiency of agency operations." Id. Accordingly, the RD concluded that NTEU's bargaining unit should be clarified to include the employees sought by its petitions. In view of this determination, the RD concluded that AFGE's petition seeking to retain these employees in AFGE's PSC unit should be dismissed.

III. Application for Review

AFGE seeks review of the RD's decision on the grounds that: (1) "a substantial question of law and policy is raised because of the departure from Authority precedent in cases regarding community of interest" (Application at 1); (2) "the RD erroneously held[,] in light of the substantial record evidence adduced at hearing and noted in the [RD's decision], that the disputed employees no longer share a community of interest with other employees" in AFGE's PSC bargaining unit (id.); and (3) "a substantial question of law and policy is raised because of the departure from Authority precedent in cases concerning accretion" (id.).

AFGE argues that the reorganization has resulted in the physical transfer of only a handful of employees, that the PSC employees continue to perform the same duties and responsibilities as before the reorganization, and that the RD erred in finding that the employees have similar job descriptions or perform the same functions as other regional employees.

AFGE states that, although some reporting requirements have changed, the disputed employees "continue to be administratively, operationally and functionally integrated in SSA with other AFGE represented employees." Id. at 11. AFGE argues that the record does not support a finding that the disputed employees have accreted to NTEU's unit, and contends that NTEU seeks to sever these employees without satisfying the Authority's requirement that "unusual circumstances exist to justify their severance . . . ." Id. at 14. Finally, AFGE contends that "assuming, arguendo, that the Authority finds the disputed employees no longer share a community of interest with other AFGE/SSA employees, any accretion without an election to [add the employees] to the NTEU/SSA unit would be an abrogation of the rights of [the] disputed employees" because "the number of AFGE/SSA disputed employees being accreted to the 402 employees NTEU/SSA unit is 371." Id. at 16. In support of its