43:1245(100)CU - - HHS Regions II, III, IV, V, VII, and IX and SSA, Baltimore, MD and NTEU and AFGE - - 1992 FLRAdec CU - - v43 p1245



[ v43 p1245 ]
43:1245(100)CU
The decision of the Authority follows:


43 FLRA No. 100

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

(43 FLRA 122 (1991))

DECISION AND ORDER ON REVIEW

January 30, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority for review of the Regional Director's (RD) decision and order on petitions filed by the National Treasury Employees Union (NTEU) and the American Federation of Government Employees (AFGE). The Authority granted AFGE's application for review in Social Security Administration, Baltimore, Maryland, 43 FLRA 122 (1991) (SSA, Baltimore).

NTEU's petitions sought to clarify NTEU's bargaining unit to include certain employees of the Social Security Administration (SSA) who previously were part of an AFGE bargaining unit. AFGE's petition in Case No. 3-CU-00029 sought to retain those employees in its established unit. AFGE's application sought review of the RD's determination to clarify NTEU's bargaining unit as requested by NTEU and to dismiss AFGE's petition.

We granted AFGE's application for review because we found that

a substantial question of law or policy has been raised as to whether the RD has departed from Authority precedent under section 7112(a)(1) of the Statute by finding that the employees sought by NTEU's petitions share a community of interest with other employees in NTEU's consolidated regional unit, and no longer share a community of interest with employees in AFGE's [Program Service Center] unit who perform operations functions.

SSA, Baltimore at 8.

Pursuant to our order granting review, supplemental briefs were filed by the Department of Health and Human Services (HHS), AFGE, and NTEU. Those briefs have been considered, along with AFGE's application for review and the oppositions filed by HHS and NTEU. For the reasons set forth below, we find that the RD did not depart from Authority precedent by finding that the employees sought by NTEU's petitions accreted to NTEU's established consolidated regional bargaining unit. We will order the RD to take appropriate action.

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 to include the approximately 328 PSC administrative and staff employees performing staff support functions who, as a result of the reorganization, were transferred to the respective HHS regional offices.

Prior to the reorganization, each PSC, headed by a Director, was autonomous and self-supporting in 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 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. Positions of the Parties

A. AFGE

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 "the disputed AFGE/PSC employees continue to perform the same duties and responsibilities." Application at 8. AFGE also states that "the primary duties and responsibilities of the impacted PSC employees have remained constant." AFGE's Supplemental Brief (AFGE's Brief) at 4 (emphasis in original). AFGE argues that the evidence "clearly demonstrates that the disputed employees continue to share a community of interest with employees of the AFGE/SSA national consolidation of units." Application at 7. AFGE also argues that "the record is replete with sound factual evidence and case law" supporting its position that the "disputed employees are not separate and distinct from" the PSC employees represented by AFGE. AFGE's Brief at 17.

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." Application at 11. AFGE asserts that keeping the disputed employees together with the other PSC employees "promotes effective dealings and efficiency of DHHS and SSA operations," while granting the accretion sought by NTEU "would result in fragmentation and labor unrest." Id. at 12, 14.

According to AFGE, the record does not support a finding that the disputed employees have accreted to NTEU's unit. AFGE 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. AFGE contends that the RD "effectuated a 'carve out' [from AFGE's unit] which is clearly at odds with the established case law in this area." AFGE's Brief at 14.

AFGE contends, moreover, that "[a]ssuming arguendo, that the Authority finds that 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 [in the] NTEU/SSA unit is 371." Application at 16. In support of its argument, AFGE cites cases in the private sector in which the National Labor Relations Board (NLRB) has refused to allow accretion without an election when the number of employees who would be accreted was equal to or greater than the number of employees in the established unit.

B. NTEU

NTEU argues that the record "clearly establishes that the disputed, and now accreted employees, share a community of interest with the other SSA employees in NTEU's consolidated unit . . . and no longer with the AFGE-PSC employees." NTEU's Opposition at 4. NTEU asserts that the facts support the RD's conclusions and NTEU's position that as a result of HHS's reorganization the employees sought by NTEU's petitions "are now functioning under a different organizational structure," and "are in the same organizational structure as the [Regional Office] employees" represented by NTEU. NTEU's Supplemental Brief (NTEU's Brief) at 26-27.

NTEU cites record evidence in support of the RD's findings that changes took place, for example, in HHS's chain of command, and in the area of consideration for promotions and reductions in force. NTEU argues that although the reorganization did not cause a change in the location or immediate supervision of all the disputed employees, the organizational and functional changes that occurred were substantial. These changes, according to NTEU, support the finding that the disputed employees are now part of HHS's regional office structure and part of NTEU's established unit of regional employees.

NTEU argues that, contrary to AFGE's contention, an election is not warranted if it is found that NTEU's unit is the only appropriate unit. NTEU contends that AFGE's argument is based on the size of the unit. NTEU asserts that the number of employees in NTEU's established unit is not 402, as alleged by AFGE, but rather is 4200, as found by the RD. NTEU argues that an election is not warranted in any event in this case because an election is warranted only "in limited circumstances where two (2) units have been found appropriate." NTEU's Opposition at 23; NTEU's Brief at 50.

NTEU contends that "[t]he decision of the RD is fully supported by the evidence and Authority law." NTEU's Brief at 37. In conclusion, NTEU contends that "[t]he facts clearly demonstrate that the contested employees no longer share a community of interest with the PSC-AFGE employees, but rather now share a community of interest with the RO-NTEU employees." Id. at 56. NTEU also contends that "[t]he facts also clearly show that the efficiency of agency operations and effective dealings would be enhanced by an accretion, and diminished by not directing an accretion." Id. at 57.

C. HHS

HHS argues that the RD's decision "was the correct decision and was fully consistent with the facts . . . as well as relevant case law . . . ." HHS's Opposition at 1. HHS also argues that an election in any case is "entirely inappropriate" because the question of accretion "is one of law" that "does not depend upon, and should not be determined by, an election to decide the preferences of the employees affected." Id. at 3.

In its supplemental brief, HHS affirms its position that the RD's decision "was well reasoned, fully consistent with the governing case law . . . and the right one for this case." HHS's Supplemental Brief at 3. HHS asserts that the unit found appropriate by the RD "will promote effective dealings with, and efficiency of the operations of [HHS]." Id. at 8.

IV. Analysis and Conclusions

We conclude, for the reasons set forth below, that the RD did not depart from Authority precedent by finding that the employees sought by NTEU's petitions may be accreted to NTEU's established consolidated regional bargaining unit. We will order the RD to take appropriate action.

In deciding questions concerning the accretion of employees to an existing bargaining unit, the Authority is bound by the criteria for determining the appropriateness of a bargaining unit set forth in section 7112(a)(1) of the Statute. The Authority may determine that a unit is appropriate only if the determination will: (1) ensure a clear and identifiable community of interest among the employees in the unit, and (2) promote effective dealings with, and efficiency of the operations of, the agency involved. In making determinations under section 7112(a)(1), the Authority examines the factors presented on a case-by-case basis. The Authority has not specified individual factors or the number of such factors needed to conclude that groups of employees share a clear and identifiable community of interest. See National Treasury Employees Union, Chapter 243, 39 FLRA 96, 101 (1991) (NTEU, Chapter 243).

The RD in this case considered the criteria set forth in section 7112(a)(1). The RD found that as a result of the reorganization the transferred PSC administrative and staff employees performing staff support functions now perform functions essentially indistinguishable from those performed by other regional office employees. The RD concluded that these transferred PSC employees share a community of interest with regional office employees and "no longer have a community of interest with the PSC employees represented by AFGE who perform operations functions . . . ." RD's Decision at 11 (emphasis supplied). The RD also concluded that accreting the transferred PSC employees to NTEU's bargaining unit would promote effective dealings with HHS and the efficiency of HHS's operations.

Based on the findings relied on by the RD and the reasons given by him, we find that, as a result of HHS's reorganization, the transferred administrative and staff employees sought by NTEU now share a community of interest with the other regional office employees in the NTEU/HHS bargaining unit and no longer have a community of interest with the PSC employees represented by AFGE who perform operations functions. We also find that accreting the transferred employees to the NTEU/HHS regional unit will promote effective dealings with HHS and the efficiency of HHS's operations. See NTEU, Chapter 243, 39 FLRA at 101-02. See also Headquarters, 97th U.S. Army Reserve Command, Fort George G. Meade, Maryland, 32 FLRA 567, 569-70 (1988); Department of the Navy, Naval Hospital, Submarine Base Bangor Clinic, Bremerton, Washington, 15 FLRA 125 (1984); and Department of the Navy, Naval Supply Center, Oakland, California, 5 FLRA 775, 777-78 (1981).

We find no merit in AFGE's argument that the RD's decision on a substantial factual issue is clearly erroneous. We also find no merit in AFGE's argument that the RD's decision departs from Authority precedent. We note, in this regard, that accretion issues are determined by applying the criteria of section 7112(a)(1) to the facts of each case. Moreover, as discussed below, the cases addressing attempts to sever employees from an existing unit are inapposite.

The issue in severance cases is whether there are unusual circumstances that would warrant allowing a group of employees to be severed from an established unit of employees with whom the employees sought still have a community of interest, and to form a separate appropriate unit. See, for example, U.S. Department of Veterans Affairs, Washington, D.C. and U.S. Department of Veterans Affairs, Westside Medical Center, Chicago, Illinois, 35 FLRA 172, 179 (1990). In this case, NTEU does not argue that the transferred administrative and staff employees form an appropriate unit separate and apart from other employees. Rather, NTEU argues, and we find, that the transferred employees no longer have a community of interest with the unit of PSC employees represented by AFGE but now have a community of interest only with, and have accreted to, the unit of regional office employees represented by NTEU. We also find that the transferred employees do not co