48:1008(110)CU - - HHS, FDA, Northeast and Mid-Atlantic Regions and AFGE, Council 242 and HHS, FDA, Mid-Atlantic Region, Newark District, West Orange, NJ and AFGE, Council 242 - - 1993 FLRAdec RP - - v48 p1008



[ v48 p1008 ]
48:1008(110)CU
The decision of the Authority follows:


48 FLRA No. 110

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

U.S. FOOD AND DRUG ADMINISTRATION

NORTHEAST AND MID-ATLANTIC REGIONS

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 242

(Labor Organization/Petitioner)

BY-CU-20017

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

U.S. FOOD AND DRUG ADMINISTRATION

MID-ATLANTIC REGION

NEWARK DISTRICT

WEST ORANGE, NEW JERSEY

(Activity/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 242

(Labor Organization)

BY-CU-20033

_____

ORDER DENYING APPLICATION FOR REVIEW

November 30, 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.

In its petition filed with the Regional Director (RD) in Case No. BY-CU-20033, the Activity sought to clarify the consolidated bargaining unit for which the American Federation of Government Employees, Council 242 (Council 242) is the certified exclusive representative. The Activity sought to show that, based on a 1987 reorganization of the regional structure of the Food and Drug Administration (FDA), the employees assigned to the Newark District Office, West Orange, New Jersey, are no longer a part of the consolidated unit.

In its petition before the Regional Director (RD) in Case No. BY-CU-20017, Council 242 sought to clarify the unit status of 31 employees in the consolidated bargaining unit for which Council 242 is the certified exclusive representative.(1) Council 242 sought to include in the bargaining unit employees encumbering the following positions: (1) secretaries to first-level supervisors; (2) secretaries to branch chiefs; (3) secretaries to district directors; (4) the secretary to the New York Regional Laboratory Director; (5) administrative specialists in the district offices; and (6) the administrative assistant in the New York Regional Laboratory.

The RD consolidated the petitions for purposes of hearing and decision. In his Decision and Order on Petitions for Clarification of Unit, the RD found in Case No. BY-CU-20033, contrary to the Activity's claim, that employees assigned to the Newark District Office continue to be part of the consolidated bargaining unit represented by Council 242. The RD, therefore, dismissed the Activity's petition in Case No. BY-CU-20033.

In Case No. BY-CU-20017, the RD clarified the bargaining unit to: (1) include secretaries to first-level supervisors, with the exception of the secretary to the administrative officer in the New York District Office, who the RD excluded from the unit; (2) exclude administrative specialists in the district offices, with the exception of the administrative specialist in the New York District Office, who the RD included in the unit; and (3) exclude secretaries to branch chiefs, secretaries to district directors, the secretary to the New York Regional Laboratory Director, and the administrative assistant in the New York Regional Laboratory.

The Activity seeks review of the RD's decision in Case No. BY-CU-20033 that the employees assigned to the Newark District Office continue to be part of the bargaining unit. The Activity also seeks review of the RD's decision in Case No. BY-CU-20017, but only to the extent that the RD included secretaries to first-level supervisors in the bargaining unit. Council 242 did not file an application for review as to the RD's Decision and Order or an opposition to the Activity's application for review. For the reasons discussed below, we find that the Activity has not established any basis for review of the RD's Decision and Order. Accordingly, we will deny the application for review.

II. Background and Regional Director's Decision

Prior to August 22, 1979, employees of the Newark District Office comprised a separate appropriate unit for which the American Federation of Government Employees (AFGE), Local 3445 (Local 3445) was the certified exclusive representative. On August 22, 1979, Council 242 (which includes Local 3445) was certified as the exclusive bargaining representative of a consolidated bargaining unit of FDA's New York, New York; Newark, New Jersey; and Buffalo, New York District Offices. The consolidated unit was clarified in 1982 and the unit currently is described as including the employees "of the New York Field Office" of the FDA. RD's Decision at 3. The parties' current collective bargaining agreement (CBA), which was negotiated in 1983 and has been renewed periodically since that time, states that "[t]he Employer consists of four districts and one regional laboratory, [namely, the] Brooklyn District[,] Buffalo District[,] Newark District[,] New York [] District[, and] New York Regional Laboratory." Activity Exhibit No. 19 at 3.

Prior to July 1987, all employees in the consolidated unit, including employees in the Newark District Office, were a part of FDA Region II, which was 1 of 10 FDA regions. On July 1, 1987, FDA reorganized its regional office structure into six regions. Former Regions I and II were merged into a new Northeast Region headed by a Regional Director in New York. The former Region III became the new Mid-Atlantic Region headed by a Regional Director in Philadelphia. As part of this reorganization, of the three district offices that comprised the consolidated unit, the New York and Buffalo District Offices became part of the Northeast Region and the Newark District Office became part of the Mid-Atlantic Region.

The Northeast Region consists of the Office of the Regional Food and Drug Director, New York, four district offices (Boston, Massachusetts; San Juan, Puerto Rico; New York, New York; and Buffalo, New York), the New York Regional Laboratory, and the Winchester, Massachusetts Engineering and Analytical Center (WEAC). The Boston District Office and the WEAC together have continued, after the 1987 reorganization, to be recognized as a separate bargaining unit exclusively represented by AFGE Local 2405. The employees in the San Juan District Office, which is specifically excluded from the consolidated unit, remain unrepresented.

The Mid-Atlantic Region consists of the Office of the Regional Food and Drug Director, Philadelphia, four district offices (Philadelphia, Pennsylvania; Baltimore, Maryland; Cincinnati, Ohio; and Newark, New Jersey), and the Forensic Chemistry Center. Under Region III, and continuing after the 1987 reorganization, the employees of the Philadelphia, Baltimore, and Cincinnati district offices are in three separate appropriate bargaining units which are exclusively represented by AFGE Locals 3025, 2486, and 3831, respectively.

There are approximately 100 employees assigned to the Newark District Office. The July 1987 reorganization did not affect the physical location, duties and responsibilities, or the first, second, or third levels of supervision, of any of the Newark employees. However, since the reorganization, the Newark District Director, who formerly reported to the FDA Region II Director in New York, has reported to the Mid-Atlantic Regional Director in Philadelphia.

According to the RD, the record shows that, as a result of the reorganization, "the Newark District Office is under the administrative control of the Mid-Atlantic Region, and [the Newark] employees are subject to the personnel and labor relations policies and practices of the Mid-Atlantic Region." RD's Decision at 5. The RD found, however, that the only specific evidence of personnel action by the Mid-Atlantic Region affecting the Newark employees was testimony "that the number of training slots available to employees in the Newark District Office [is] determined by the Mid-Atlantic Region." Id. With regard to merit promotion, the RD found that competitive positions at the GS-12 level and above are advertised nationwide; at the GS-9 through GS-11 levels, within both the Northeast and Mid-Atlantic Regions; and at the GS-8 level and below, and for all WG positions, in all FDA offices located within the commuting areas of the office where the vacancy is to be filled. The RD also found that, for this purpose, the Newark employees are in the same commuting area as the New York District Office, except for the Camden Resident Post, which is in the same commuting area as the Philadelphia District Office.

On the other hand, according to the RD, the record shows that the "Department of Health and Human Services (DHHS) Regional Personnel Office in New York provided staffing, classification and labor relations support to the Newark District Office before the July 1987 reorganization, and it has continued to provide this same support since the reorganization." Id. As a result of this arrangement, "employees in the Newark District Office are in the same competitive areas for reduction-in-force (RIF) purposes as the other employees in [Council 242's] consolidated unit since competitive areas are defined by the jurisdictional scope of the servicing DHHS Regional Personnel Office--in this case the DHHS [Regional] Personnel Office in New York." Id. The RD also found that "the Mid-Atlantic Region has continued to apply the terms of the [CBA] for the consolidated unit to the employees in the Newark District Office[,] with the modification that the Regional Director for the Mid-Atlantic Region has been substituted for the Regional Director of the Northeast Region as the final step official before [a grievance proceeds to] arbitration." Id. In this regard, the RD found that, between 1987 and 1991, the Newark District Office continued to participate in negotiations between the Northeast Region and Council 242 as to matters concerning the consolidated unit.

A. Case No. BY-CU-20033

The RD found that "the principal question presented by the FDA's petition is whether the employees of the Newark District Office, as a result of the July 1987 reorganization, now constitute a functionally distinct group of employees who no longer share a community of interest with the other employees in the Union's consolidated unit." Id. at 11. The RD discussed several cases cited by the Activity in which the Authority clarified bargaining units to exclude, as a result of agency reorganizations, certain employees or groups of employees who were no longer a part of an established bargaining unit, but had become functionally distinct or a part of another appropriate bargaining unit. The RD distinguished the present case from the cases relied on by the Activity.

The RD found that "[i]n contrast to the organizational changes in those cases," the Newark District Office employees, following the reorganization, "continued to be FDA employees." Id. at 12. The RD also found that the only change was that "their administrative assignment [was] to a new FDA Mid-Atlantic Regional Office that is different from the new FDA Northeast Regional Office to which the other FDA offices in the consolidated unit are administratively connected." Id. at 12-13. The RD found that the reorganization "did not result in the Newark District Office becoming any more of a functionally distinct group . . . than they were in 1979 when they were included in that unit." Id. at 13. The RD

base[d] this finding on the fact that the employees in the Newark District Office occupy the same positions and perform the same duties under the same or similar working conditions as the other employees in the unit; they continue to be in the same competitive area for RIF purposes; the reorganization did not change the manner in which vacancies are advertised or filled in any of the offices included in the unit; and the DHHS [New York Regional] Personnel Office continues to provide personnel and labor relations support to the Newark District Office and the other offices included in the unit.

Id.

The RD concluded that, "[i]n view of these factors . . . the continued inclusion of the Newark District Office employees will ensure a clear and identifiable community of interest among the employees in the consolidated unit." Id. The RD noted that, following the 1987 reorganization, the FDA and Council 242 continued to apply the terms of the CBA to the Newark District Office, continued to engage in consolidated bargaining "until 1991[,] without any evidence that this arrangement was not effective," and that "all FDA offices within the consolidated unit including Newark [continued to be] serviced by the same DHHS [New York Regional] Personnel Office . . . ." Id. The RD concluded that "the continued inclusion of Newark District Office employees in the consolidated unit will promote effective dealings with the FDA and the efficiency of its operations." Id. Accordingly, the RD stated that he would order that the FDA's petition in Case No. BY-CU-20033 be dismissed. The RD further stated that, alternatively, he would find that the Newark District Office employees constitute a separate appropriate unit within the Mid-Atlantic Region. See id. at n.7.

B. Case No. BY-CU-20017

As stated above, Council 242 sought by its petition to clarify the bargaining unit status of 31 employees. The RD determined that some of those employees should be included in, and some excluded from, the consolidated bargaining unit. The only finding of the RD in this regard that is challenged by the Activity is the RD's finding that secretaries to first-level supervisors, with one exception, should be included in the unit.

The 16 individuals in dispute are employed as secretaries to first-level supervisors in the Buffalo, New York, and Newark District Offices and the resident posts subordinate to the district offices. The supervisors report to branch chiefs, the branch chiefs report to the district directors, and the district directors report to the regional directors. Each of the supervisors is responsible for as many as 11 investigators and/or inspectors who are in the consolidated bargaining unit.

The investigators and inspectors ensure compliance with the various food and drug laws and regulations under the FDA's administrative jurisdiction. The supervisors are responsible for evaluating the employees and have authority to recommend awards as well as to propose discipline. The supervisors have been delegated the authority to make determinations as to acceptable levels of competence for within-grade increases; to issue official reprimands; and to propose, decide, and concur in adverse actions based on misconduct or performance. Under the negotiated grievance procedure, the supervisors respond to grievances filed by employees under their supervision at the first step. Some of the supervisors have been asked for their suggestions on issues subject to negotiation between the Northeast Region and Council 242.

The secretaries to these supervisors normally type performance evaluations and recommendations for awards and disciplinary actions. The secretaries maintain the supervisors' informal personnel files and prepare and receive correspondence on grievances or other matters handled by their supervisors.

The RD found, contrary to the contentions of the Activity, that the secretaries to first-level supervisors are not confidential employees. The RD noted that, under section 7112(b)(2) of the Statute, an appropriate unit may not include any confidential employee. Citing Authority precedent, the RD stated that the incumbent of a position will be found confidential "where the evidence shows that[:] (1) there is a confidential working relationship between the employee and the employee's supervisor[;] and (2) the employee's supervisor is significantly involved in labor-management relations." Id. at 14.

The RD noted that in a related unfair labor practice proceeding in Food and Drug Administration, Newark District Office, West Orange, New Jersey, 47 FLRA 535 (1993) (FDA, Newark), the Authority adopted the findings and conclusions of the administrative law judge that a first-level Supervisory Consumer Safety Officer in the Newark District Office, although involved in personnel matters, was not significantly involved in formulating or effectuating labor-management policies, and his secretary was, therefore, not a confidential employee. The RD recited the findings as to the supervisor's duties in FDA, Newark. The RD found that, "[o]n the basis of the record in this case, . . . the duties and responsibilities of Mimi Roa Remache(2) and the other first[-]level supervisors" involved in this case, with the exception of the Administrative Officer in the New York District Office, "are indistinguishable, in terms of their involvement in labor-management relations matters, from those of [the] first[-]level supervisor" involved in FDA, Newark. Id. at 15.

The RD, accordingly, "[c]oncluded that inasmuch as the evidence establishes that the first[-]level supervisors are not significantly involved in labor-management relations, their secretaries are not confidential employees and, therefore, are included in the consolidated unit." Id.

III. Application for Review

The Activity asserts that under section 2422.17(c) of the Authority's Rules and Regulations, compelling reasons exist for the Authority to review the RD's decision. The Activity contends that: (1) the RD's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of the Activity; (2) a substantial question of law or policy is raised because the RD's decision represents a departure from Authority precedent; and (3) there are extraordinary circumstances warranting reconsideration of an Authority policy.

The Activity claims that, although the facts stated by the RD are substantially correct, the RD has ignored or given almost no weight to other facts as testified to by certain of the Activity's witnesses. The Activity requests that the Authority reverse the RD's determination: (1) in Case No. BY-CU-20033, to dismiss the Activity's petition; and (2) in Case No. BY-CU-20017, that the secretaries to first-level supervisors are not confidential employees.

As to Case No. BY-CU-20033, the Activity contends that record testimony shows that: (1) the Northeast Region and the Mid-Atlantic Region created by the 1987 reorganization "are in fact separate, independent and distinct components" of FDA (id. at 2); (2) the "Newark District employees were organizationally and operationally transferred" to the Mid-Atlantic Region (id. at 7); and (3) the Mid-Atlantic Regional Director has "his own budget to administer" and "his own labor relations policy making and implementing authority" (id. at 9).

The Activity cites several cases in which the Authority clarified bargaining units to exclude, as a result of agency reorganizations, certain employees or groups of employees who were no longer a part of an established bargaining unit. The Activity argues that the facts in this case are similar to the cases cited and that allowing Newark to remain a part of Council 242's consolidated unit would "not ensure a clear and identifiable community of interest among the employees in the unit" and would "not promote effective dealings with, and efficiency of the operations of" the Activity. Id. at 19.

As to Case No. BY-CU-20017, the Activity contends that the RD "erred in his findings regarding the labor relations responsibilities of FDA first-[level] supervisors" (id. at 2), and that record evidence establishes that "secretaries of first-[level] supervisors, in 1992, provided confidential support to the supervisors" (id. at 3) and thus should be excluded from the consolidated bargaining unit. The Activity asserts that by "rely[ing] on the holding of the Authority in [FDA, Newark], which was based on the activities of one supervisor in 1990," the RD "made his determination on factual error." Id. at 20.

As noted above, the RD found that the duties and responsibilities of first-level supervisor Remache were typical of the duties and responsibilities of all first-level supervisors. The Activity, which incorporated its post-hearing brief in its application for review, contends that Remache "is involved in such matters as recommendations regarding promotions, grievances, employee appraisals and disciplinary actions," and "has been requested to submit comments for . . . contract negotiations." Activity's Post-Hearing Brief at 25. The Activity asserts that "[b]ased on Remache's responsibilities regarding promotions, on grievances, employee appraisals, disciplinary actions, and the overall supervision of her group in the Investigations Branch, as well as commenting on contract negotiations, . . . Remache is an individual who effectuates management policy in the field of labor-management relations." Id. at 25-26.

IV. Analysis and Conclusions

We conclude, for the reasons that follow, that compelling reasons do not exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the Activity's application for review.

A. Case No. BY-CU-20033

The basic facts as found by the RD are not in dispute. Prior to FDA's 1987 reorganization, the Newark District Office employees were part of the consolidated bargaining unit represented by Council 242. The Newark employees, along with the employees of the New York and Buffalo District offices, were provided staffing, classification, and labor relations support by the DHHS New York Regional Personnel Office, and were under the administrative control of Region II, New York. As a result of the reorganization, the Newark employees are now under the administrative control of the Mid-Atlantic Region, and are subject to the personnel and labor relations policies and practices of the Mid-Atlantic Region. However, despite the reorganization, as found by the RD and stipulated by the parties, the Newark employees still are provided staffing, classification, and labor relations support by the DHHS New York Regional Personnel Office, and are still in the same competitive areas for RIF purposes as the other employees in Council 242's consolidated unit.

The Activity argues that the RD ignored certain pertinent facts. In effect, the Activity argues that because the Newark employees are now under the administrative control of the Mid-Atlantic Region and subject to the policies of the Mid-Atlantic Region, these employees have a community of interest with the other employees in the Mid-Atlantic Region and can no longer be found to have a community of interest with employees in the consolidated bargaining unit. We disagree.

The issue in this matter, as stated by the RD, is whether, as a result of the Activity's 1987 reorganization, the Newark employees no longer continue to share a community of interest with the other employees in the consolidated unit represented by Council 242. The issue is not whether the Newark employees also share some community of interest with employees in the Mid-Atlantic Region.

As stated above, with the exception of the San Juan District Office, which has remained unrepresented, the other offices within the Northeast Region (Boston and WEAC) comprise a separate bargaining unit. Moreover, each of the other district offices within the Mid-Atlantic Region (Philadelphia, Baltimore, and Cincinnati) comprises a separate appropriate bargaining unit, and the parties stipulated that these district offices are serviced by separate DHHS personnel offices.

We find that the record supports the RD's conclusion that, although the Newark employees were organizationally transferred to the administrative control of the Mid-Atlantic Region, the Newark employees appropriately remained a part of the consolidated unit. The Authority has held that, despite a reorganization, "[w]here the character and scope of a bargaining unit have not changed substantially, the RD may properly find that the existing unit remains appropriate." Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, North Carolina, 45 FLRA 281, 286 (1992), reconsideration denied, 45 FLRA 993 (1992), citing Federal Aviation Administration, Aviation Standards National Field Office, 15 FLRA 60, 64-65 (1984). See also U.S. Department of Energy, Oak Ridge Operations Office, Oak Ridge, Tennessee, 15 FLRA 130 (1984). We find that the record also supports the RD's conclusion that the continued inclusion of the Newark employees with the other employees in the consolidated unit will ensure a clear and identifiable community of interest among those employees, and will promote effective dealings with, and efficiency of the operations of, the Activity.(3)

We find that the Activity has not demonstrated that the RD, in reaching his conclusion, made clearly erroneous findings on substantial factual issues. Rather, the Activity's arguments simply constitute disagreement with some of the RD's factual findings, the weight he placed on some of his findings, and the conclusions he reached based on his findings. We also find that the Activity has not shown that a substantial question of law or policy has been raised by the RD's decision because of a departure from Authority precedent as to this issue. In this regard, the RD distinguished the present case from those relied on by the Activity. Finally, we find that the Activity has not demonstrated that there are extraordinary circumstances warranting reconsideration of an Authority policy as to this issue. Accordingly, we will deny the application for review and dismiss the Activity's petition in Case No. BY-CU-20033.

B. Case No. BY-CU-20017

The RD found that secretaries to first-level supervisors are not confidential employees because the first-level supervisors are not significantly involved in labor-management relations. Accordingly, the RD, with one exception, included these secretaries in the consolidated bargaining unit.

The Activity asserts that, based on the duties of the first-level supervisors as shown in the record, the RD should have concluded that these supervisors are individuals who effectuate management policy in the field of labor-management relations. The Activity also asserts that the RD's findings are factually erroneous because he relied on the Authority's findings and holding in FDA, Newark as to a first-level supervisor's duties in 1990, whereas the duties testified to in this case were the supervisors' duties in 1992.

We find no merit in the Activity's assertions. First, although the RD discussed the Authority's decision in FDA, Newark, he also made his own findings of fact as to the supervisors' duties in the present case. Having recited the findings as to the supervisor's duties in FDA, Newark, the RD found that, "on the basis of the record in this case," the duties and responsibilities of the first-level supervisors are indistinguishable from the duties and responsibilities of the first-level supervisor involved in FDA, Newark. RD's Decision at 15. Thus, based on the record in this case, the RD concluded that first-level supervisors are not significantly involved in labor-management relations. We agree that the record supports the RD's conclusion.

We have reviewed the duties and responsibilities of the first-level supervisors as set forth by the Activity in the application for review. These are the same duties and responsibilities considered by the RD. The record shows that the first-level supervisors are involved in personnel matters, including employee appraisals and disciplinary actions, promotions, and grievances, and have been asked to comment on matters involved in contract negotiations. However, the RD found, and we agree, that these duties and responsibilities are not sufficient to establish that the first-level supervisors in this case are significantly involved in formulating or effectuating labor-management policy. See, for example, FDA, Newark, 47 FLRA at 562-64.

We find that the Activity has not demonstrated that the RD, in reaching his conclusion, made clearly erroneous findings on substantial factual issues. Rather, the Activity's arguments constitute mere disagreement with the emphasis he placed on some of his findings, and the conclusions he reached based on his findings. We also find that the Activity has not shown that a substantial question of law or policy has been raised by the RD's decision because of a departure from Authority precedent as to these issues. Finally, we find that the Activity has not demonstrated that there are extraordinary circumstances warranting reconsideration of an Authority policy as to these issues. Consequently, we will deny the application for review in Case No. BY-CU-20017.

In sum, we find that the Activity has not shown that compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the Activity's application for review.

V. Order

The application for review is denied. The Activity's petition in Case No. BY-CU-20033 is dismissed. The Regional Director is directed to take appropriate action consistent with our decision.




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