48:0620(62)RO - - Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, IL and AFGE - - 1993 FLRAdec RO - - v48 p620



[ v48 p620 ]
48:0620(62)RO
The decision of the Authority follows:


48 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE CHIEF IMMIGRATION JUDGE

CHICAGO, ILLINOIS

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Labor Organization/Petitioner)

CH-RO-20043

_____

ORDER DENYING APPLICATION FOR REVIEW

October 5, 1993

_____

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 Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Regional Director's (RD's) Decision and Order and Direction of Election, directing an election in a unit of all non-professional, General Schedule employees of the Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Illinois. The Petitioner filed an opposition to the Activity's application for review.(1)

For the following reasons, we deny the application for review.

II. Background and RD's Decision

The petition in this case, filed by the American Federation of Government Employees, AFL-CIO (AFGE), seeks an election among employees in the following bargaining unit at the Activity:

INCLUDED: All non-professional, General Schedule employees in the Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Illinois.

EXCLUDED: Immigration Judges; other professional employees; management officials; supervisors; and employees described in 5 U.S.C. § 7116(b)(2), (3), (4), (6), and (7).

RD's decision at 1.

The Executive Office for Immigration Review (EOIR) was established in January 1983, to consolidate immigration appeals functions. The Office of the Chief Immigration Judge (OCIJ) was established within EOIR, in February 1983, to provide overall policy guidance and program direction for immigration judges, who are located in 21 field or "base city" offices nationwide, including Chicago, Illinois. Transcript at 64.

The mission of the field offices is to hold hearings for individuals, within their geographic jurisdiction, who the Immigration and Naturalization Service (INS) alleges are in the United States illegally. Immigration judges rule on whether those individuals are in the country legally and whether they may remain. The judges also determine relief for which the individuals may be eligible. The field office staff may include immigration judges, interpreters, clerks, language specialists, legal technicians, student aides, and law clerks. The Chicago field office, at the time of the hearing, had 13 non-professional employees in the proposed unit.

None of the non-professional employees in the OCIJ field offices is represented by an exclusive representative. The immigration judges are represented in a nationwide unit by the National Association of Immigration Judges.

At OCIJ headquarters there are five assistant chief immigration judges (ACIJs), each of whom reports to the Chief Immigration Judge (CIJ), who in turn reports to the Director of EOIR. Each of the ACIJs is responsible for certain field offices. The CIJ provides overall policy, program, and administrative guidance to the immigration judges. The ACIJs assist in the general supervision, direction, and scheduling of the immigration judges and the conduct of programs assigned to them. A management officer (MO) in each field office supervises the non-professional staff and is responsible for day-to-day administration of the office. Each MO reports to the ACIJ assigned to that field office.

With regard to the administration of the field offices, the RD made the following findings. MOs have the authority to approve leave of less than 30 days; approve travel authorizations and vouchers, except for foreign travel; and assign work, counsel, and appraise the non-professional staff. The MO also has the authority to hire and take other personnel action for staff at grade GS-6 and below, and the Chicago field office MO interviews applicants for all positions. In the two years the Chicago field office MO has held the position, he has recommended six applicants for positions, and his recommendations have always been accepted by headquarters. Vacancies for non-professional employees are usually announced within the geographical area where the vacancy occurs, and all of the non-professional staff in the Chicago field office were hired from within the local commuting area. Although the MOs also have the authority to recommend awards, promotions and disciplinary or adverse actions, the ACIJ and CIJ are the deciding officials for those actions. An MO's recommendation for a disciplinary action, internal promotion, award or other such action may be disapproved, but such disapproval is infrequent. Moreover, when an MO recommends a disciplinary action, the MO may be delegated authority to propose the action.

In addition, the RD found as follows. The EOIR exercises control over policy and operating procedures in the field offices. A personnel unit in the Office of Management Administration, EOIR, is responsible for staffing, training, and other personnel functions although the Department of Justice retains the authority to appoint employees and to classify positions. The personnel unit provides standardized training and training manuals to field office non-professional employees. Although the non-professional employees within the field offices work under uniform performance standards and position descriptions, the MOs determine the performance standards for individual non-professional employees by utilizing a "menu" of uniform standards furnished by headquarters. Id. at 4. In addition, the MOs may recommend outside training for their staffs with approval at the headquarters level. The MO also can allow employees to vary their work schedule within the work day that has been prescribed by headquarters. All requests to change an employee's work schedule and all requests for overtime must go through the MO to headquarters for approval. One request was refused by headquarters because it deviated from the prescribed work day. The Chicago MO establishes lunch and break policy and schedules for the office, but the schedules must be approved by headquarters.

Employees have, at the employee's request, sometimes been reassigned to the same job classification in another field office. Further, employees are sometimes detailed to another city because of caseload demands. For example, language specialists are sometimes detailed for periods of a week's duration or less to other cities, "detailed cities" within the field office's geographic territory, where there is no EOIR office to handle the caseload. Transcript at 64. The Chicago field office services seven such cities. In addition, one language specialist in the Chicago field office, who has worked in the position since 1985, was detailed to the Boston field office for a week and was detailed in 1987 to Texas. Language specialists have some contact with employees in like positions in other field offices concerning cases and also use electric mail (E-mail) to communicate with one another concerning training seminars. There has not been a reduction-in-force (RIF) in EOIR. However, an Agency regulation provides that in a RIF each field office would be a separate competitive area.

The Activity argued before the RD that the EOIR employees nationwide share a common mission and job titles and are subject to uniform, centralized policies and procedures, and that the authority of the MO at the field office level is limited. The Activity contended that uniformity and consistency of policy and procedure nationwide is crucial to the effective operation of the Activity, and asserted that a bargaining unit at a field office level would interfere with its operation.

The RD concluded that the proposed unit is an appropriate unit under section 7112(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute). The RD noted that in making appropriate unit determinations under section 7112(a)(1), the Authority examines the factors presented on a case-by-case basis. Citing Department of Health and Human Services, Region II, New York, New York, 43 FLRA 1245 (1992), the RD stated that the Authority will find a proposed unit to be appropriate only if the determination, consistent with section 7112(a)(1), 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 operation of, the agency involved. The RD further stated that the Authority has not specified individual factors or the numbers of such factors necessary for a community of interest determination under section 7112(a)(1).

In reaching his conclusion that the employees in the proposed unit have a community of interest, the RD relied on the following factors: (1) recruitment and hiring of non-professional employees is essentially confined to the field office commuting area; (2) the RIF competitive area is at the field office level; (3) the MO has authority to hire at grade GS-6 and below, and can effectively recommend selections of higher-graded non-professional employees; (4) the MO has significant authority to assign work, appraise employees, effectively recommend discipline of non-professional employees, and to generally administer the day-to-day operations of the Chicago field office pursuant to the Activity's policies and procedures; and (5) because the field offices are geographically separated, interchange and interaction between employees has been infrequent and not significant. Accordingly, the RD concluded that the Chicago field office employees share a clear and identifiable community of interest. In support, the RD cited Defense Logistics Agency, Defense Contract Management Command, Defense Contract Management District, North Central, Defense Plant Representative Office-Thiokol, Brigham City, Utah, 41 FLRA 316 (1991) (DPRO-Thiokol).

The RD rejected the Activity's argument that the proposed Chicago field office unit would not promote effective dealings and efficient operations because of the Activity's centralized control and its uniform operating policies and procedures. The RD noted that while centralized control and uniform work policies are factors to be considered under section 7112 of the Statute, neither factor renders a local unit inappropriate. In support, the RD relied on the following quote from DPRO-Thiokol, 41 FLRA at 330:

[E]very agency has centralized control, directives and regulations in order to maintain uniformity within its organization. We do not dispute the need for maintaining a certain level of uniformity within an organization. If, however, the Authority were required to find units confined to one location to be inappropriate whenever the facts indicate some centralized control of administrative and personnel matters, we would find few local units to be appropriate. We do not believe that section 7112 of the Statute requires such a result.

Consequently, the RD concluded that the Activity's centralized control and uniform operating policies did not require a finding that the proposed Chicago field office unit is inappropriate. Rather, the RD found that the Chicago field office employees have local concerns, that the MO is responsible for the day-to-day operations of the office, and that the proposed unit is coextensive with a distinct organizational component of the Activity. The RD concluded that in these circumstances a good collective bargaining relationship at the Chicago field office level should enhance the Activity's operations. Accordingly, the RD concluded that the proposed unit will promote effective dealings and the efficiency of the Activity's operation.(2)

The RD ordered that the petition be granted and that an election be conducted in the unit found to be appropriate.

III. Positions of the Parties

A. The Activity

The Activity contends that compelling reasons exist for granting its application for review because: (1) the RD's statements with regard to the majority of the factual issues upon which he based his decision are clearly erroneous, are unsupported, and directly contradicted by all of the evidence on the record, resulting in prejudice to the Activity; and (2) substantial questions of law and policy are raised by the RD's departure from Authority precedent.

The Activity maintains that all policies followed by the field offices are set by the CIJ, who supervises five ACIJs. The Activity argues that the ACIJs, all located at the EOIR central office, are responsible for the supervision of the field offices and that, therefore, the MOs "can not be considered supervisors." Application at 4. Instead, the Activity asserts the MOs "merely 'oversee the operation of their own office.'" Id. (quoting the testimony of a management official in the transcript at 22).

The Activity argues that of the five factors relied on by the RD in reaching his conclusion that the employees at the Chicago field office have a community of interest, all but one--the location of the RIF competitive area at the field office level--are contested by the Activity as "incorrect or irrelevant." Id. at 5. First, the Activity claims, based on selected hearing testimony, that there is significant evidence contradicting the RD's finding that recruitment and hiring of non-professional employees are essentially confined to the field office commuting area. The Activity argues that there is no evidence that supports the RD's conclusion and that the only evidence "even peripherally related" is the fact that most current employees at the GS-6 level or below who transfer to another GS-6 position will stay within the commuting area. Id. at 9.

Next, the Activity claims that all applicable testimony contradicts the RD's finding that the MO has authority to hire at grade GS-6 and to effectively recommend the selection of higher-graded non-professional employees. Relying on the testimony of a management witness, the Activity contends that "it is undisputed" that the MO has no authority to decide to fill a vacant position or to hire a candidate even for positions GS-6 and below. Id. at 10. Rather, the Activity argues, once a decision to fill a position at grade GS-6 or below has been made at EOIR headquarters, "the MO may then be authorized to select the person to fill such positions. . . .  Thus, the MO has essentially no more hiring authority than an average Federal sector first line supervisor with respect to positions graded GS-6 and below, and even less for those positions graded GS-7 and higher." Id. (emphasis in original). The Activity asserts that the RD's conclusion is contradicted by the "overwhelming weight of evidence on the record" and, thus, is "clearly erroneous." Id. at 11.

The Activity next disputes the RD's finding that the MO has significant authority to assign work, appraise employees, effectively recommend discipline of non-professional employees and generally administer the day-to-day operations of the Chicago field office pursuant to the Activity's policies and procedures. The Activity claims that the record indicates only two insignificant instances where the MO, as opposed to the CIJ or EOIR headquarters, can assign work: (1) the establishment of a rotating schedule; and (2) the assignment of employees to substitute for sick employees. The Activity claims that the record establishes that the MOs do not develop performance standards for the field office employees, but, rather, merely identify applicable standards from a menu of standards developed and promulgated by the EOIR central office. The Activity argues that the MO has less authority to appraise employees than the average first line supervisor and can only recommend discipline. The Activity also contests as factually inaccurate the RD's finding that the MO has authority to administer day-to-day operations. The Activity argues that the MOs cannot approve leave advances; deal directly with building management to correct problems in the work area; determine lunch periods; set work hours; determine or change floor plans or work space assignments; approve overtime; or change office hours. The Activity also disputes as clearly erroneous the RD's finding that disapproval of the MO's recommendation for disciplinary actions, internal promotions, and awards is infrequent.

Finally, the Activity disputes the RD's findings that the field offices are geographically separated and that interchange and interaction between employees have been infrequent and not significant. The Activity argues that although the offices are geographically separate, work at each office is not essentially confined to that office's local jurisdiction, as found by the RD. In this regard, the Activity quotes the testimony of a management official that "we detail people frequently, when case loads increase suddenly in one office or another." Id. at 15 (emphasis added by Activity). The Activity also notes that changes of venue result in transfers of cases from one field office to another, which necessitates interoffice dealings. The Activity claims that "it is undisputed that [employees] are 'interchangeable from field office to field office.'" Id. (quoting from the hearing transcript at 29).

With regard to the RD's finding that the proposed unit would promote effective dealings and would support the efficiency of operations, the Activity also asserts that this is based on the "faulty presumption that any proposed unit will promote efficiency of operation and effective dealings and that the burden is upon the agency to show that they do not." Id. at 17 (emphasis in original). The Activity contends that even assuming that such a presumption were appropriate, the RD clearly erred by concluding that the Activity had failed to overcome the presumption. The Activity contends that the MO has virtually no control over the day-to-day operations of the field office and that the RD wrongly assumed that the Chicago field office employees had any unique, local concerns. The Activity further contends that the Chicago field office is not a distinct organizational component as that found in DPRO-Thiokol because: (1) the first line supervisor of the Chicago field office is an ACIJ, located at EOIR headquarters; (2) the MO merely acts for the ACIJ; (3) the employees at the Chicago office deal with exactly the same type of clients and cases as those of other offices; and (4) the Chicago field office is an entirely integrated part of EOIR.

The Activity also disputes the RD's finding that the record does not indicate that the proposed Chicago field office unit would result in ineffective dealings and inefficient operations. The Activity contends that the RD should have determined instead whether the evidence established that the proposed unit would result in effective dealing and efficient operations. Even assuming that the initial burden were on the Activity, however, the Activity argues that the RD ignored the overwhelming evidence that EOIR has a highly centralized administrative structure to ensure nationwide consistency in the hearing process so as to provide equal due process to all appellants. The Activity asserts that EOIR cannot operate effectively and efficiently unless its field office employees' conditions of employment are uniform and interchangeable from office to office.

The Activity also contends that substantial questions of law and policy are raised by the RD's departure from Authority precedent. First, the Activity contends that the RD applied the wrong standard to ascertain whether there is a community of interest. Citing FAA, the Activity contends that community of interest, as described in section 7112 of the Statute, describes an entire group, not a subset of employees contained within that group. The Activity argues that while the RD correctly determined that the 13 employees of the Chicago field office share a community of interest, he erred by failing to recognize and properly evaluate facts that demonstrate that this same community of interest is shared equally by all the non-professional employees located at all of EOIR's field offices. The Activity contends that the RD in this case made "exactly" the same error as the regional director in FAA. Application at 25 (emphasis in original).

The Activity questions the RD's reliance on DPRO-Thiokol, which, it contends, affirmed the rule set out in FAA. In this regard, the Activity quotes the following passage from DPRO-Thiokol, 41 FLRA at 319-20:

[T]he employees of DPRO Thiokol share a clear and identifiable community of interest separate and apart from other employees within the North Central District.

Application at 30 (emphasis added by Activity). The Activity argues that only three of the factors that were found to support a unique community of interest in DPRO-Thiokol are present in this case, while the "undisputed facts regarding the 15 remaining factors indicate that there is no unique community of interest." Id. at 33. Accordingly, the Activity contends that under controlling Authority precedent the RD could not have found that the employees of the Chicago field office shared a community of interest separate and apart from other employees.

The Activity further contends that the RD erred in determining that the proposed unit would promote effective dealings with EOIR because he failed to provide any rationale or support for this conclusion. The Activity asserts that the RD's conclusion in this regard is inconsistent with the Authority's precedent, citing again to the factors set out in FAA and DPRO-Thiokol. In particular, the Activity argues that "[u]nlike practically any other organization, the record reveals that it has no line 'supervisors' at the field offices." Id. at 37. The Activity contends that each ACIJ acts as the first line supervisor for four or five field offices and argues that if each EOIR field office were an appropriate unit, each first line supervisor would be responsible for the negotiation and administration of five different agreements. Further, the Activity again contends that to achieve EOIR's mission, all policy or procedures governing its field offices must apply uniformly.

The Activity also contends that the RD erred in determining that the proposed unit promotes the efficiency of agency operations. The Activity argues that the RD ignored two factors in DPRO-Thiokol that "automatically render a unit inappropriate . . . ." Id. at 39 (emphasis in original). In this regard, the Activity maintains that the RD was required to find the unit inappropriate because the EOIR was established to create "a single, unfragmented, centrally administered organizational structure for all immigration review functions . . . ." Id. at 40. The Activity notes that in DPRO-Thiokol the Authority acknowledged that in an organization "whose mission requires strict nationwide uniformity" a local unit would be inappropriate. Id. at 41, citing 41 FLRA at 330-31. The Activity also contends that the RD ignored evidence of a significant countervailing factor, that the "very concept of due process requires uniformity in the adjudication of immigration cases." Application at 42. To achieve this result, the Activity contends that it must have standardized practices throughout the EOIR offices and the "interchangability" of EOIR employees. Id. at 43. In this regard, the Activity again stresses that temporary reassignments from one office to another to meet shifting needs are frequent.

B. The Petitioner

The Petitioner contends that the RD's findings with regard to whether the employees in the local unit have a community of interest are correct and based on the evidence presented at the hearing. The Petitioner stresses that its petition covers only the 13 non-professional employees of the Chicago field office and that witnesses' testimony frequently referred to the office in general. With regard to these 13 employees, the Petitioner contends that: (1) all, except one, lived in the Chicago area before being hired; (2) none has ever been detailed out, interchanged or had a temporary assignment; and (3) their work is essentially confined to the local jurisdiction.

The Petitioner also specifically disputes the Activity's assertion that the MOs cannot be considered supervisors and that the first line supervisor of the field office is the ACIJ.(3) The Petitioner contends that the MO exercises complete control over the employees in the Chicago field office, holds himself out as their supervisor and is considered by the employees to be their supervisor. The Petitioner argues that the MO can effectively recommend promotions, transfers, commendations, reassignments or similar actions because he possesses the power not to recommend such actions, which the Petitioner maintains "is a great power in itself." Opposition at 3.

The Petitioner also contends that the RD was correct to find that the proposed unit would promote effective dealings and efficiency of agency operations. The Petitioner argues that the Activity's arguments in this regard are merely "the restatement of erroneous conclusions drawn from a misinterpretation of the testimony and another attempt to convince that the [MO] is somewhat less in authority than an average secretary." Id. at 4.

The Petitioner argues that the employees of the Chicago field office have evident local concerns and claims that the MO "held himself out" to have control over the day-to-day operations of the office and "to be the authority on all issues that concern the employees in the Chicago field office." Id. at 5. Further, the Petitioner notes that the Chicago field office MO has established certain unique procedures, such as tape recording conversations, meetings, and training sessions held in his office. The Petitioner contends that the field office is a unique organizational component of the Activity, geographically separate from other Activity offices, and that the work of the office is completed within the office. Based on these contentions, the Petitioner argues that the Chicago field office should be considered to be a "distinct organizational component." Id. at 5.

IV. Analysis and Conclusions

We conclude, for reasons stated below, that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review. We find that the RD's conclusion, that the non-professional employees of the EOIR, OCIJ Chicago field office constitute an appropriate unit within the meaning of the Statute, is supported by the record and consistent with Authority precedent.

A. The Matter of Whether the MO is a Supervisor

The issue of whether the MO is a supervisor was not presented to the RD. The Activity raises this issue for the first time in its application for review. An application for review "may not raise any issue or allege any facts not timely presented to the Regional Director." 5 C.F.R. § 2422.17(b).(4) Accordingly, we will not consider the Activity's argument that the MO is not a supervisor and will consider, as the RD did, the MO a supervisor.(5) However, as the parties did present testimony before the RD regarding the authority possessed by the MO, we will consider that testimony insofar as it is relevant to the issues presented by the application for review.

B. The RD Did Not Make Errors on Substantial Factual Issues

The Activity claims that the RD's statements with regard to the majority of the factual issues upon which he based his decision are clearly erroneous and that they are unsupported and directly contradicted by the evidence on the record. We disagree. Upon review of the record that was before the RD, we find that the record supports the RD's factual findings.

First, we find that the record supports the RD's findings that: (1) recruitment and hiring of non-professional employees at the entry level is essentially confined to the field office commuting area; and (2) the MO has authority to hire at grade GS-6 and below, and he effectively recommends selection of higher-graded non-professional employees for promotion. The record testimony indicates that the positions at issue are "in most instances" and "more often than not" filled within the city or geographic area where they are located. See transcript at 57 and 59. Indeed, the Chicago office MO testified that, to his knowledge, bargaining unit positions are currently filled by applicants from within the commuting distance of Chicago. Further, in the only instance on the record when an entry level position in Chicago was not filled by an applicant from the geographic area, that person was interviewed in Chicago by the then-MO and was selected for the position by the MO after performing work-related skills during a mock hearing. The evidence also shows that in the two years that the current MO has held his position, he has effectively selected six persons for hire. With regard to selections for higher-graded positions, only two of the seven recommendations for promotion made by the Chicago field office MO were denied by higher management. The record also indicates that when the MO interviews applicants, he has the choice of whether to include a senior interpreter or immigration judge at the interview. And, according to the testimony of a management official at the hearing, not every field office holds mock hearings to test an applicant's skills. See transcript at 62.

We also find that the record supports the RD's findings that the MO has significant authority to assign work, appraise employees, effectively recommend discipline of non-professional employees, and to generally administer the day-to-day operations of the Chicago field office pursuant to the Activity's policies and procedures. The Activity concedes that the MO may establish a rotating schedule for coverage of the office's reception desk and has the authority to assign employees to substitute for employees who are sick. Further, Joint Exhibit 8, which contains the various position descriptions for the employees at issue, shows that, under "Factor 2 - Supervisory Controls[,]" the MO assigns duties to certain non-professional employees. For example, the position description of "Language Specialist GS-1040-05" states "[t]he [MO] assigns work based on the language needed and the difficulty of the material, provides direction on the form and style of the interpretations, and calls attention to protocol." Joint Exhibit No. 8. As to employee appraisals, the Activity does not contend that the MOs do not evaluate employee performance, but only that the MOs do not develop the performance standards. As the Activity concedes, the MO recommends discipline. The Chicago field office MO testified that he would investigate any alleged offenses reported to him and, based on that investigation, may or may not recommend discipline. Indeed, he may give a verbal warning without higher management approval. As to the authority of the MO to administer the day-to-day operations of the office, the record shows, as found by the RD, that the MO has the authority to administer most day-to-day operations pursuant to the policies and procedures established by the Activity. For example, the Activity concedes that the MO can approve leave of less than 30 days, except advance leave, and can assign employees to substitute for employees on sick leave. Further, the MO can initially attempt to resolve office temperature problems with GSA. The record also shows that the MO has the discretion to tape meetings held with employees, and to determine whether to have additional personnel present when he interviews job applicants. Finally, it is undisputed that the RIF competitive area is at the field office level.

We also reject the Activity's contention that the record does not support the RD's finding that interchange and interaction between employees of the Chicago field office and other Activity offices have been infrequent and insignificant. The record shows that all details of non-professional employees are on a volunteer basis, and that almost all details are to cities within the geographic jurisdiction of the Chicago field office. The only evidence to the contrary is the testimony of one employee who testified that in her eight years at the Chicago field office she was detailed twice outside the Chicago field office. We find that the record supports the RD's finding this does not constitute frequent interchange. Moreover, although employees of the various offices contact each other through the use of E-mail and when the venue of a case is transferred from one office to another, the record indicates that such contacts are infrequent. See transcript at 102. Thus, the evidence establishes that employees of the various offices simply do not work together on a frequent basis. Consequently, we find that the record supports the findings of the RD that employees do not interact frequently and that any such contact that does occur is not significant. In so doing, we reject the Activity's contention that sufficient interchange has been established because position descriptions are uniform across the Activity and an employee in one office could easily perform the duties of another office. We base our conclusions in representation cases on actual, rather than hypothetical, factors.

Accordingly, we conclude that the findings of fact relied on by the RD in determining that the proposed unit comprises an appropriate unit are supported by the evidence on the record. We find that the Activity's contentions constitute nothing more than disagreement with the RD's findings and conclusions and provide no compelling reasons that warrant granting the Activity's application. Consequently, we conclude that the Activity has not established that the RD's decision is clearly erroneous. See, for example, U.S. Department of the Air Force, Caswell Air Force Base, Texas, 40 FLRA 221, 231-32 (1991).

C. The RD's Decision Does Not Depart From Authority Precedent

l. Community of Interest

The Authority has not specified individual factors or the number of factors necessary to establish a community of interest. Rather, the Authority requires examination of the factors presented on a case-by-case basis. See American Federation of Government Employees, Local 2004, 47 FLRA 969, 972 (1993) (AFGE). Our review shows that the RD properly determined, based on Authority precedent, that the proposed unit was appropriate under section 7112(a)(1) of the Statute.

The RD found that numerous factors support the appropriateness of the proposed unit. Among those are the following: (1) the hiring of non-professional employees is essentially confined to the local commuting area; (2) the RIF competitive area is at the field office level; (3) the MO has the authority to hire at the lower grades and to recommend hires at higher grades, to assign work, appraise, effectively recommend discipline of non-professional employees, and generally to administer the day-to-day operations of the Chicago field office pursuant to the Activity's policies and procedures; (4) the field offices are geographically separated; (5) the work of each field office is essentially confined to its respective local jurisdiction; and (6) interchange and interaction between the employees at the Chicago field office with the employees of the Activity's other offices has been infrequent and not significant. The RD considered the fact that employees of EOIR nationwide have similar job titles and a common mission and are subject to uniform personnel policies but concluded that these factors did not require a finding that the proposed unit was inappropriate.

We disagree with the Activity's contention that, under FAA and DPRO-Thiokol, these factors do not support a finding that the employees share a community of interest, and that, therefore, the RD did not follow Authority precedent in so finding. In FAA, the Authority reversed the RD's determination that a region-wide, rather than nationwide, unit was appropriate. Specifically, in FAA, the Authority found, based on record evidence, that the RD's decision "fail[ed] to recognize and properly evaluate the facts which clearly demonstrate that this same community of interest is equally shared by all air traffic control specialists employed throughout the FAA." 20 FLRA at 228. In so finding, the Authority emphasized the overriding nature of the agency's mission of ensuring the safe and efficient use of the nation's air-space. Among other factors contributing to a community of interest throughout the agency, the Authority pointed to the interchange and transfer of air traffic control specialists among the agency's various regions and the fact that the positions were advertised on a nationwide basis, in addition to the uniform establishment and application of personnel policies and practices throughout the country. In contrast, the RD in this case found that: (1) the work of each field office is essentially confined to its respective local jurisdiction; (2) interchange and interaction between employees at the Chicago field office with employees of the Activity's other offices has been infrequent and not significant; and (3) the hiring of non-professional employees is essentially confined to the local commuting area. Thus, although some of the factors in FAA are also present in this case, others that tend to solidify local cohesiveness distinguish this case from FAA.

Similarly, although we recognize that in DPRO-Thiokol the local unit was more physically and operationally isolated than the unit at issue in this case, in our view, those differences do not require a finding that a unit at the field office level cannot be appropriate where, as here, the employees engage in little significant interaction or interchange with other employees of the Agency and share distinct local concerns. Again, we stress that the Authority does not rely on individual factors, but, rather, examines the totality of the circumstances in each case in making appropriate unit determinations under section 7112(a)(1) of the Statute. See AFGE, 47 FLRA at 972; National Treasury Employees Union, Chapter 243, 39 FLRA 96, 101 (1991).

Based on the foregoing, we find that the RD properly recognized and evaluated the facts in reaching the conclusion that the Chicago field office employees share "a clear and identifiable community of interest." RD's decision at 6-7. Accordingly, we conclude that the Activity has failed to support its assertion that the RD departed from Authority precedent in concluding that the evidence established a community of interest among employees in the Chicago field office. See AFGE at 972-73.

2. Effective Dealings and Efficient Operations

We also conclude that the RD did not misapply precedent in concluding that the proposed unit would promote effective dealings with, and efficient operations of, the Activity. In this regard, we disagree with the Activity's assertion that, applying DPRO-Thiokol to this case, the unit sought can be appropriate only if there are "unique issues" at that level "that would necessitate the drafting of a unique [c]ollective [b]argaining [a]greement." Application at 36-37.

In view of the degree of authority that the MO has in administering day-to-day operations and the absence of any significant interchange and interaction between employees of different locations, as found by the RD and as discussed above, we see no reason why a unit confined to the Chicago field office would interfere with effective dealings, as claimed by the Activity. In this regard, we disagree with the Activity's contention that the RD ignored "the two factors set out in [DPRO-]Thiokol which automatically render a unit inappropriate because it does not promote efficiency of operations." Id. at 39 (emphasis in original). First, based on the RD's findings, which we have affirmed, we see nothing to indicate that the Chicago office is so functionally integrated with the other components of the Activity that the establishment of a separate unit would create the type of "artificial fragmentation" that would lead to chaos in the immigration review process. Id. at 40. Thus, we disagree that evidence of centralized control of operating procedures alone requires a finding that only a nationwide unit is appropriate. As the RD noted, the Authority has stated that if we were required to find local units inappropriate merely because the facts indicate some centralized control of administrative and personnel matters, "we would find few local units to be appropriate." DPRO-Thiokol, 41 FLRA at 330. We reiterate that we do not believe that section 7112 of the Statute requires such a result.

Next, we reject the Activity's contention that, under DPRO-Thiokol, the RD was required to find a "significant countervailing factor" mandating a larger unit in view of the Activity's unique mission to assure due process in the administration of immigration laws. Application at 41. In DPRO-Thiokol we noted that such a countervailing factor existed in FAA because the mission of the agency in that case "required strict nationwide uniformity to ensure safety within the air transport system." 41 FLRA at 331. We are simply not persuaded that collective bargaining at the field office level would so affect the Activity's ability to provide consistent due process that "the Nation's immigration hearing process would be crippled." Application at 42. According to the record in this case, the EOIR was formed to create a separate immigration judge function from the rest of the INS so as "to get away from any . . . bias or an appearance that there may be with the fact that [j]udges were also working for the [d]istrict [d]irector of INS." Transcript at 18 (testimony of a management official). The Agency has not established that that goal, and the concomitant concern with providing uniform due process in all hearings conducted by the immigration judges, would be affected in any way by negotiations at the local level, especially in view of the fact that there is no significant interchange of employees between field offices. In contrast, in FAA the Authority concluded that the mission of the agency to ensure the safe and effective use of the nation's air-space overrode all local concerns. In addition, in concluding that a nationwide unit in FAA would promote effective dealings within the agency, the Authority stressed the "past history of effective nationwide bargaining for air traffic control specialists." 20 FLRA at 229. In this case, the RD concluded, and we agree, that there are no similar countervailing factors that would mandate a unit of greater scope. Thus, the RD examined the centralization of administrative and personnel matters and determined that this factor was not significant. The RD also concluded, contrary to the Activity's claim, that there was no significant interchange between employees of different offices within the Activity. Accordingly, we find that the Activity's application for review expresses mere disagreement with the RD's evaluation of these matters and with his application of Authority precedent to his factual findings. See NTEU, 39 FLRA at 102.

In view of the degree of the MO's authority to administer the day-to-day operations of the Chicago field office and the absence of evidence of significant interchange and interaction of employees, as detailed by the RD and discussed in section IV B above, as well as our examination of the Agency's mission and the employees' bargaining history, we conclude that the local concerns of the employees in the petitioned-for unit can be effectively dealt with and addressed, within the established Activity-wide policies and procedures, by the MO at the field office level. Therefore, having examined the particular facts and circumstances of this case, as required by Authority precedent, we conclude that the record supports the RD's conclusion that the proposed unit will promote effective dealings with, and the efficiency of, the Activity's operations. See AFGE; see also U.S. Geological Survey, Water Resources Division, Southeastern Region, Caribbean District, 46 FLRA 832 (1992).

Accordingly, we conclude that the Activity has not established that the RD departed from Authority precedent in concluding that the Chicago field office unit satisfies the criteria of section 7112(a)(1).

As no compelling reasons exist for granting the application for review, we will deny the application.

V. Order

The application for review of the Regional Director's decision and order and direction of election is denied.




FOOTNOTES:
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1. The Activity also filed a motion to strike certain portions of the Petitioner's opposition that included and relied on evidence not timely presented to the RD. As discussed below, this evidence was not considered by the Authority pursuant to 5 C.F.R. § 2422.17(b). Accordingly, it is not necessary to rule on the Activity's motion.

2. In reaching this decision, the RD specifically addressed the following cases cited by the Activity and distinguished the facts in those cases from the facts in this case. Department of Transportation, Federal Aviation Administration, New England Region, 20 FLRA 224 (1985) (FAA); Local No. 3, International Federation of Professional and Technical Engineers, AFL-CIO-CLC, 7 FLRA 626 (1982); and U.S. Department of Agriculture, Food and Nutrition Service, Minneapolis ADP Field Center, Minneapolis, Minnesota, 5 FLRA 685 (1981).

3. The Petitioner presented certain documents in support of its position that it claims show that the MO acts in the capacity of a first line supervisor. These documents were not offered as evidence in the proceedings before the RD and thus, were not considered by the Authority pursuant to 5 C.F.R. § 2422.17(b).