48:1228(131)RP - - OPM, Atlanta Regional Office of Federal Investigations, Atlanta, Georgia and AFGE - - 1993 FLRAdec RP - - v48 p1228
[ v48 p1228 ]
The decision of the Authority follows:
48 FLRA No. 131
FEDERAL LABOR RELATIONS AUTHORITY
U.S. OFFICE OF PERSONNEL MANAGEMENT
ATLANTA REGIONAL OFFICE OF FEDERAL INVESTIGATIONS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER DENYING APPLICATION FOR REVIEW
December 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 Petitioner under section 2422.17(a) of the Authority's Rules and Regulations. The Petitioner seeks review of the Decision and Order of the Regional Director (RD) dismissing the petition. The RD concluded that the unit sought by the Petitioner does not constitute a unit appropriate for exclusive recognition because the employees do not have a clear and identifiable community of interest separate and apart from other employees of the Activity. The RD also found that the unit sought would not promote effective dealings with the Activity. The Activity filed an opposition to the application for review.
For the following reasons, we deny the application for review.
II. Background and RD's Decision
The petition seeks an election among employees in the following bargaining unit at the Activity:
Included: All non-professional Office of Federal Investigations employees of the Office of Personnel Management, Atlanta Region, Atlanta, Georgia.
Excluded: All professional employees; management officials; supervisors; and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6), and (7).
RD's Decision at 1.
The Office of Federal Investigations (commonly referred to as the Investigations Division), is a division of the Atlanta Regional Office (the Activity) of the U.S. Office of Personnel Management (OPM or the Agency). In addition to the Investigations Division, the Atlanta Region is composed of three other divisions: Career Entry, Personnel Systems and Oversight, and Training and Development. The Atlanta Regional Office services eight southeastern states, and employs approximately 608 full-time employees and 230 part-time employees. Employees of the Region encumber positions in some 20 occupational series. The largest group contains 221 Testing Clerks. There are 163 Investigators, who comprise the second largest group of employees of the Activity and account for most of the employees sought in the petition. The record indicates that employees of the Region are not currently represented by an exclusive collective bargaining representative.
All employees of the Activity are in the same competitive area for promotions and have the same fringe benefits, travel and per diem compensation, sick and annual leave policy, agency grievance system, hiring and recruitment programs, and alternate work schedule plan. In addition, the Regional Director provides overall supervision to all employees. Investigators transfer into or have been promoted into other positions in different divisions of the Region. Employees of the Activity, including Investigators, may be stationed at the Regional Office, a Service Center, or an Area Representative Office.
All Investigators in the Region report to a supervisory Investigator, who, in turn, reports to the Chief of the Investigations Division of the Atlanta Region. The Investigators are assigned to duty stations in Atlanta and Augusta, Georgia; Columbia, South Carolina; Knoxville, Tennessee; Norfolk, Virginia; and Orlando, Florida. These employees conduct suitability and background investigations of candidates for positions within the government and submit their reports to the client agency. They also conduct investigations into suitability for security clearances. With few exceptions, investigations do not involve current employees of the Agency.
With regard to the administration of the offices where the Investigators are stationed, the RD found that the Region's Investigations Division Offices are staffed by the Investigators, a Supervisory Investigator, and clerical support employees. The Investigators make appointments for interviews from their homes and call the assigned duty station when necessary. The Supervisory Investigator telephones the Investigators at home to give assignments. The Investigators report only occasionally to the assigned duty station, often to deliver paperwork or to check on a mileage reimbursement payment. Thus, the Investigator position requires extensive field work away from the duty station and the Investigators do much of their work on the road or from their homes. The RD noted that this feature of their work is not exclusive among employees of the Region, however. Other employees of the Region also travel extensively. For example, trainers travel to seminar and course sites; evaluators and testers also travel extensively, although the record does not indicate that these categories of employees visit their offices as infrequently as the Investigators, or that they do much of their work at their homes when they are not on the road.
Although some Investigators have security clearances(1) because they need to enter secured premises to conduct some of their interviews, they are not privy to any information related to national security.
The Petitioner argued before the RD that a separate unit of employees of the Investigations Division is appropriate because of the unique nature of their investigative work, and the requirements that the Investigators travel and do much of their work away from their duty stations. The Activity, on the other hand, argued that only a Region-wide unit would foster effective dealings with the Petitioner and that the community of interest among the employees in the Investigations Division is not materially distinct from that shared by all Regional employees. There is no indication that the Petitioner has an interest in representing a Region-wide unit of eligible employees in the event of a decision that the unit sought is inappropriate.
The RD noted that the Federal Service Labor-Management Relations Statute (the Statute) provides that a proposed unit of employees is appropriate
only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of, the agency involved.
Section 7112(a)(1) of the Statute.
The RD stated that factors to be considered in determining community of interest include common locations, common supervision, regular working contacts, common job classifications, interchange among the employees, a common mission and common benefits. The RD concluded that the evidence does not support a finding that the Investigators share a community of interest separate and distinct from other employees in the Region. She relied on findings that the Investigators share most of the same working conditions and personnel policies and practices with other employees in the Region. She noted that other employees in various job classifications in the Region also travel and work away from their duty stations. She concluded, therefore, that the working conditions raised as a basis for a separate unit by the Petitioner do not support a finding that a separate Investigations Division is appropriate.
The RD also considered the issue of whether the Investigations Division constitutes a separate unit because of the confidential nature of some of the investigations and because some Investigators have security clearances. She noted that, under section 7112(b)(6) of the Statute, only those employees who perform investigative work related to intelligence, counter-intelligence or security work which directly affects national security must be excluded from bargaining units, and found that the Investigators do not engage in such work. In response to the Petitioner's assertion that a Region-wide unit is inappropriate because the Investigators investigate employees of the Agency, which creates a conflict of interest with employees outside the Investigations Division, the RD found that the Investigators "rarely investigate other OPM employees or applicants[,]" and "that there is no apparent or actual conflict of interest due to the rarely-occurring investigations of OPM employees." RD's decision at 7.
Finally, the RD concluded that an Investigations Division unit would not promote effective dealings with the Activity because she found that the Division does not operate as a functionally separate organization with a different set of personnel policies and a different line of supervision. In reaching that conclusion, the RD reiterated that Investigations Division employees share with the rest of the Activity's employees many of the same conditions of employment such as leave and pay policies, disciplinary system, and work schedules. In addition, the RD noted that the Investigations Division, like each of the other divisions, reports to the Regional Director, and the Region's personnel activities are conducted through the Regional Personnel Office for all employees.
III. Positions of the Parties
A. The Petitioner
The Petitioner contends that the RD's decision departs from Authority precedent on a substantial question of law or policy because the decision
fail[ed] to address the crucial fact that the FLRA has previously certified an identical self-contained Investigations bargaining unit at OPM's Central Office in Boyers, Pa., despite the existence of another unit at that Central Office.
Application at 2. The Petitioner claims that the Authority gives significance in unit determinations to "[h]istorical patterns of units . . . ." Id.
The Petitioner argues that the logical result of the RD's ruling would be a policy of certifying only national or international units whenever employees in a proposed unit share common conditions of employment with other employees of their agency. The Petitioner maintains that, instead, it must be shown that a unit composed of only one of the four divisions in the Atlanta Region would cause undue fragmentation, and that no such evidence was presented. Rather, the Petitioner argues, the Investigators share a community of interest separate from the rest of the Region. It asserts that among the factors that demonstrate such a separate community of interest are: different skills and practical educational requirements; the unique nature of the Investigators' law enforcement functions; the requirement of specific training in Washington, D.C. and elsewhere regarding developments in the law; the routine performance of work away from the office; unusual working hours; specialized security clearances; and the lack of interchange among the Investigators and other employees of the Region.
The Petitioner contends that the Investigators' occasional assignments to investigate a potential unit employee and to perform investigations of unit employees for alleged misconduct represent a conflict of interest that renders a Region-wide unit inappropriate, and maintains that the RD erred in finding otherwise.
Finally, the Petitioner argues that the Authority routinely finds that a unit based on a functional or occupational group promotes effective dealings and efficiency of agency operations because "it allows the parties to respond in a more meaningful manner to a functional group of employees who possess characteristics and concerns limited to that group." Id. at 8, quoting Department of the Navy, Naval Station, Norfolk, Virginia, 14 FLRA 702, 704 (1984) (Naval Station Norfolk).
B. The Activity
In opposition to the application for review, the Activity argues that the application fails to establish any of the grounds that are necessary for the Authority to grant review, and argues that the Petitioner is merely attempting to reargue the position it took before the RD.
IV. Analysis and Conclusions
We conclude that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations to grant the application for review. We find that the RD's conclusion that the unit sought does not constitute an appropriate unit for collective bargaining is not inconsistent with Authority precedent and is supported by the record.
A. The RD's Decision Does Not Depart From Authority Precedent
We reject the Petitioner's contention that the RD's decision departs from Authority precedent because it does not address the Petitioner's claim that the Authority has certified a separate unit of Investigators in the Agency's Central Office in Boyers, Pennsylvania.
The Authority examines the totality of the circumstances in each case in making appropriate unit determinations under section 7112(a)(1) of the Statute. U.S. Department of Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Illinois, 48 FLRA 620, 634-35 (1993) (Office of the Chief Immigration Judge, Chicago). On reviewing the record with regard to the Boyers unit, we conclude that the facts surrounding the two groups of investigators are so different as to make the case involving the Boyers recognition inapposite here.(2) The record discloses that the employees in the Federal Investigations Processing Center in Boyers, Pennsylvania share the facility with one other facility-wide unit, known as the Central Office Retirement and Insurance Group and Record Center. According to the record, American Federation of Government Employees Local 2450 was recognized as exclusive representative of employees of the Retirement and Insurance Group and Record Center in 1970. The Investigations Processing Center came into existence in about 1978 and at that time the same union was recognized to represent employees of that unit. Significantly, the employees of the two Boyers, Pennsylvania units have distinct chains of command and report to separate authorities in Washington, D.C. As a result, unlike the Region's divisions here, the two Boyers units have no organizational ties.
Moreover, the record discloses that although the Investigators at the OPM Central Office in Boyers are in the same job classification series as the Investigators in the Atlanta Region, the Investigators in Boyers do not perform field investigations but are mainly involved in case review and/or case processing. Thus, the two Investigations units are dissimilar in function as well as organizational structure, and the certification of one lends little support for similar treatment of the other.
B. The Record Supports the RD's Conclusion that the Investigations Division Does Not Constitute an Appropriate Unit
1. Community of Interest
The Petitioner contends that the RD ignored evidence that would establish that the unit sought has a community of interest separate from other employees of the Region. In effect, the Petitioner contends that the RD gave insufficient weight to the unique nature of the Investigators' work and conditions of employment.
The Authority has not specified individual factors or the number of factors necessary to establish a community of interest. Rather, the Authority requires an examination of the factors presented on a case-by-case basis. Office of the Chief Immigration Judge, Chicago; American Federation of Government Employees, Local 2004, 47 FLRA 969, 972 (1993). In this case, the RD relied on such factors as common working conditions and personnel policies and practices among all employees in the Region, including travel and work away from duty stations, and concluded that the evidence presented by the Petitioner does not support a finding that a separate unit for the Investigations Division is appropriate. On review of the record, we agree with the RD that the similarities between the employees in the Investigations Division and employees in the other divisions in the Atlanta Region outweigh their differences. For example, other employees of the Region also travel extensively and do much of their work outside the office. In addition, the record shows that there are no particular educational requirements for entry level Investigators' jobs, and that it is not uncommon for employees of the Activity to begin as Investigators and eventually be promoted or transferred to other parts of the Agency. There is also evidence that employees have transferred to the Investigations Division from other parts of the Region. The Petitioner's argument that the Investigators hold law enforcement positions and have "unique" security requirements, Application at 6, is similarly unpersuasive. First, the record does not show what law enforcement duties the Investigators perform, if any. Indeed, there was testimony from the Chief of the Investigations Division that "[m]ost law enforcement entities would not consider us law enforcement." Transcript (Tr.) 170. Further, the security clearances merely enable Investigators access to secured premises when necessary to conduct their interviews and not all of the investigators even have such clearance.
We also reject the Petitioner's contention that the RD erred in ignoring the significance of the actual or apparent conflict of interest caused by an investigator's occasional assignment to investigate potential bargaining unit employees. The RD found that the Investigators "rarely investigate other [Agency] employees or applicants." RD's decision at 7. In this regard, we note testimony by one Investigator that she could recall performing only one investigation of an Agency employee out of the "thousands" she had done, Tr. 91-2, while another Investigator testified that during "[t]wenty-plus years," he had investigated "not more than ten" OPM employees, Tr. 160. We also note testimony by the Chief of the Investigations Division that the division performs one or two investigations of Agency employees a year out of a total of 30,000 investigations during that period. We agree with the RD that "there is no apparent or actual conflict of interest due to the rarely-occurring investigations of OPM employees." RD's decision at 7.
Moreover, we note that although the Investigators appear to comprise the great majority of employees in the unit sought, it also contains clerical support employees. The Petitioner bases its argument that the Investigations Division is a separate unit with a distinct community of interest largely on contentions that the division represents a functional or occupational unit and that employees in the unit travel extensively and thereby are set apart from other employees in the Region. However, in addition to the fact that they do not do investigations, the clerical support employees neither travel nor work away from the office in the performance of their duties. In addition, Investigators have only limited direct contact with the clerical employees. Thus, for example, some Investigators mail in their reports for transcribing, and it appears that Investigators otherwise appear only infrequently at the office. Accordingly, the respective functions of the Investigators and the clerical support employees within the Investigations Division lend further support to the conclusion that employees of the proposed unit do not share a clear and identifiable community of interest separate and distinct from the other employees of the Region.
Based on the foregoing, we find that the RD properly recognized and evaluated the pertinent evidence in reaching the conclusion that the employees in the Investigations Division do not have a community of interest separate and distinct from the other employees of the Activity. Accordingly, we conclude that the Petitioner has failed to establish that the RD ignored evidence that would lead to a contrary result. See U.S. Geological Survey, Water Resources Division, Southeastern Region, Caribbean District, 46 FLRA 832, 843 (1992) (the Authority rejected a contention that a Regional Director had stressed certain evidence and failed to consider contrary evidence). In sum, we conclude that the Petitioner's position merely expresses disagreement with the RD's application of the criteria in section 7112 of the Statute. See, for example, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 31 FLRA 938, 941 (1988).
2. Effective Dealings and Efficiency of Operations
A proposed unit may meet the statutory criteria of effective dealings and efficiency of operations if it is structured around a functional grouping of employees who possess characteristics and concerns limited to that group. For example, U.S. Department of the Air Force, Edwards Air Force Base, California, 35 FLRA 1311, 1314 (1990) (Edwards Air Force Base, California). The RD based her conclusion that a separate unit would not promote effective dealings with the Activity on her finding that the Investigations Division "does not operate as a functionally separate organization with a different set of personnel policies and a different line of supervision." RD's Decision at 7.
We do not take issue with the petitioner's argument that "a unit structured around the special interests of an occupational grouping of employees has routinely been found by the FLRA to promote effective dealings and efficiency of agency operations," Application at 7-8. There is ample precedent for this proposition. For example, Edwards Air Force Base, California; Naval Station, Norfolk. In fact, the Statute itself, at section 7112(a)(1), explicitly recognizes that units established on a functional basis may be appropriate. However, as discussed above in the context of community of interest, the Petitioner has failed to demonstrate that the Investigations Division is uniquely structured around the "special interests" of the Investigations Division employees. Thus, in contrast to Naval Station, Norfolk, we find that the Investigative Division is not "a functional group of employees who possess characteristics and concerns limited to that group" and that the working conditions and reporting patterns shared by all divisions of the Activity demonstrate that a separate unit would not enhance the parties' ability "to respond in a more meaningful manner . . . ." Naval Station, Norfolk, 14 FLRA at 704.
Moreover, in arguing that there is a cohesive occupational grouping represented by the Inv