53:1221(102)CU - - Phoeniz Area Indian Health Service, Owyhee Service Unit (Owyhee PHS Indian Hospital, and Elko Clinic ) and Native American Health Care Local 1386, Liuana - - 1998 FLRAdec RP - - v53 p1221



[ v53 p1221 ]
53:1221(102)CU
The decision of the Authority follows:


53 FLRA No. 102

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

PHOENIX AREA INDIAN HEALTH SERVICE

OWYHEE SERVICE UNIT

(OWYHEE PHS INDIAN HOSPITAL, AND ELKO CLINIC)

OWYHEE, NEVADA

(Activity)

and

NATIVE AMERICAN HEALTH CARE

LOCAL 1386, LIUNA, AFL-CIO

(Exclusive Representative/Petitioner)

DE-CU-60002

_____

PHOENIX AREA INDIAN HEALTH SERVICE

OWYHEE SERVICE UNIT

(OWYHEE PHS INDIAN HOSPITAL, AND ELKO CLINIC)

OWYHEE, NEVADA

(Activity)

and

NATIVE AMERICAN HEALTH CARE

LOCAL 1386, LIUNA, AFL-CIO

(Exclusive Representative/Petitioner)

DE-CU-60004

_____

PHOENIX AREA INDIAN HEALTH SERVICE

OWYHEE SERVICE UNIT

(OWYHEE PHS INDIAN HOSPITAL, AND ELKO CLINIC)

OWYHEE, NEVADA

(Activity/Petitioner)

and

NATIVE AMERICAN HEALTH CARE

LOCAL 1386, LIUNA, AFL-CIO

(Exclusive Representative)

DE-CU-60005

_____

DECISION

January 28, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)

I. Statement of the Case

This case is before the Authority on the Exclusive Representative's (Union's) application for review under section 2422.17(c)(1) of the Authority's Regulations.(2) It involves the same central issue, agency, and national union, with a different Activity and factual setting, as another case issued today. Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Arizona, 53 FLRA No. 101 (1998) (Case Nos. DE-CU-50069/60001) (Hu Hu Kam).(3) The central issue in both cases is whether bargaining unit employees on special purpose Intergovernmental Personnel Act (IPA)(4) assignments to hospitals over which an Indian tribe has taken control remain "employed in an agency" and thus within the coverage of the Federal Service Labor-Management Relations Statute (the Statute). 5 U.S.C. § 7103(a)(2)(A).

The Regional Director (RD) found that the employees in this case were not employed in an agency and, therefore, that the bargaining unit of the Owyhee Hospital (Hospital) employees is no longer appropriate.(5) The Activity did not file an opposition to the Union's application for review. No supplemental briefs have been filed.

For the reasons set forth below and in Hu Hu Kam, we find that the employees are employed in an agency and that the bargaining unit is appropriate.

II. Background and RD's Decision

The Indian Self-Determination and Education Assistance Act (Self-Determination Act) permits Indian tribes to take over functions and services that had previously been performed by the IHS and the Bureau of Indian Affairs (BIA). 25 U.S.C. § 450 et seq., Pub. L. No. 93-638, as amended (1994). This transfer may be effected through several mechanisms. In this case, the Shoshone-Paiute Tribes of the Duck Valley Reservation (the Tribes) took responsibility for the operation and administration of the Hospital under a "compact" pursuant to the Tribal Self-Governance Demonstration Project Act (TDPA). 25 U.S.C. § 450f.(6)

Under a compact, a tribe takes over the function for an unspecified time period, limited only by section 301 of the TDPA, which limits authorization for the compacts to an 18-year period which began on October 5, 1988. Once a compact is finalized, a tribe has an unconditional entitlement to renewal of funding for "compacted functions" every year, subject to the availability of appropriations. RD's Decision at 11. Under a compact, IHS monitoring of compacted health care functions consists of: (1) a bi-annual report to the Senate Select Committee on Indian Affairs; and (2) a single annual audit report. Pursuant to the TDPA, a tribe is free to request "retrocession of compacted programs or any portions thereof," that is, a tribe is free to decide to terminate the compact and the facility would revert to IHS at a specified time. Id. at 13.

In hiring staff for the Hospital, the Tribes had the option of directly hiring new employees or of retaining IHS employees on IPA details. The Tribes chose to retain all but a few of the approximately 40 to 50 employees working at the Hospital prior to the compact. Virtually all of the Hospital's employees are IHS employees detailed to the Hospital under special purpose IPA assignments. The Hospital's Administrative Officer is an IHS employee on assignment, as are the other supervisors and managers. In essence, the detailed employees remained in their positions under the same immediate supervisors and managers.(7)

As of the hearing date, approximately 34 bargaining unit employees and an unspecified number of supervisors and managers detailed on special purpose IPA assignments remained working at the Hospital. They occupy their Federal positions of record, are paid by IHS under the General Schedule pay system, and are subject to Federal employee standards of conduct. IHS retains control over the following conditions of employment: discipline, leave, retirement, health insurance, life insurance, promotion, quality step increases, cash awards, and within-grade increases. Employees who had been on dues withholding continue to have their dues withheld. The following conditions are controlled by the Hospital: work assignments, work location, workweek, hours of duty, leave conditions, performance expectations, dress code and holidays. At least three changes have been made to employees' working conditions by the Hospital: (1) procedures to request compensatory time and overtime have been changed; (2) the employee tardiness policy has been eliminated; and (3) September 27 of each year has been established as a Tribal holiday (Native American Day).

The RD stated that there was no legally relevant factual difference between the circumstances that were present in the Hu Hu Kam case and the circumstances present here. The RD stated that "the IPA and its provisions concerning the use of [special purpose IPA assignments] apply equally to situations involving 638 contracts or compacts under the [Self-Determination Act]. . . ." RD's Decision at 14 n.29. The RD found that as a result of the Tribes' assumption of the function provided by the IHS through the Hospital, that function has become, in accordance with the Self-Determination Act, a Tribal function.

The RD made similar findings to those made in Hu Hu Kam. The RD found that as a result of the compact, the IHS employees detailed to the Tribes on special purpose IPA assignments are subject on a day-to-day basis to a chain of command that ultimately leads to the Tribes, not to IHS. The RD also found that there is no basis to conclude that IHS and the Tribes have become joint employers. According to the RD, the definition of "agency" for purposes of the Statute is defined as an "executive agency" and thus could not include the Tribes.

As in Hu Hu Kam, the RD found that the Authority's precedent Internal Revenue Service, 24 FLRA 999 (1986) (IRS) and American Federation of Government Employees, National Council of Social Security Administration Field Operations Locals, AFL-CIO and Social Security Administration, Office of Field Operations, Baltimore, Maryland, 17 FLRA 11 (1985) (SSA) is applicable here. Consistent with IRS and SSA, the RD found that the Union could not bargain over the employees' conditions of employment while they were on special purpose IPA assignments. Accordingly, the RD concluded that the employees on special purpose IPA assignments could not continue to be considered members of the professional and non-professional bargaining units at issue, and the RD revised the bargaining units' descriptions accordingly.

III. The Employees on Special Purpose IPA Assignments Are Employed in an Agency Within the Meaning of Section 7103(a)(2)(A) of the Statute

A. Positions of the Parties

The Union has incorporated in this case the same arguments it made in the Hu Hu Kam case. It asserts that the employees were not divested of fundamental rights under the Statute as a result of the compact and the IPA assignments. The Union also contends that the Agency has retained substantial control and influence over terms and conditions of employment of the employees within the meaning of section 7103.

Neither the Agency nor the Activity filed a response.

B. Analysis and Conclusions

For the reasons set forth in our decision in Hu Hu Kam, we find that the employees on special purpose IPA assignments are employed in an agency within the meaning of section 7103(a)(2)(A) of the Statute. We conclude that IHS is an agency and that the employees on special purpose IPA assignments remain employed in IHS. We also find that neither the Tribes nor the Hospital constitute an agency under 5 U.S.C. § 105 and section 7103.

Finally, for the reasons set forth in Hu Hu Kam, we find that Authority precedent on IPA assignments, specifically IRS and SSA, does not require a contrary result. Accordingly, consistent with Hu Hu Kam, we conclude that the employees on special purpose IPA assignments are employees of IHS, but not the Tribes or Hospital, within the meaning of section 7103.

IV. The Collective Bargaining Unit Remains an Appropriate Unit

A. Positions of the Parties

The Union contends that although the conditions of employment of these employees have changed by virtue of their special purpose IPA assignments, they have retained an identifiable community of interest as Hospital employees with the same Federally-mandated and Federally-influenced terms and conditions of work. According to the Union, IHS exercises control or influence over significant elements of the employees' conditions of work. The Union argues, therefore, that the certified bargaining unit remains appropriate for exclusive representation by the Union in bargaining collectively with IHS over terms and conditions of work under the control or influence of IHS.

Neither the Agency nor the Activity filed a response.

B. Analysis and Conclusions

A unit is appropriate under section 7112(a) of the Statute if: (1) the employees at issue share a clear and identifiable community of interest; (2) the unit promotes effective dealings with the agency involved; and (3) the unit promotes efficiency of operations of the agency involved. 5 U.S.C. § 7112(a); United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 959 (1997) (FISC).(8) Determinations as to each element are made on a case-by-case basis by balancing the relevant findings of fact set forth in the RD's decision and order. Id. at 960. 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).

In determining that the collective bargaining unit remains an appropriate unit, we reiterate our conclusion in Hu Hu Kam that the community of interest of these employees is not affected by the shift in control over certain conditions of employment to the Tribes. Further, we find that collective bargaining by this bargaining unit promotes effective dealings with the Agency and its efficiency of operation.

The Union's statutory representation of employees on special purpose IPA assignments extends only to those matters over which the Agency retains control or influence. This does not, however, eliminate the efficacy of bargaining over the subjects which remain within the Agency's control and influence.

V. Decision

The petition to clarify the unit in Case No. DE-CU-60005 is dismissed, and the RD is directed to take appropriate action in Case Nos. DE-CU-60002 and 60004 to amend the certification of unit consistent with this decision.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Cabaniss did not participate in this decision.

2. All references to the Authority's Regulations pertain to the Regulations in effect prior to March 15, 1996. The petitions in these cases were filed before that date and the revised Regulations do not apply in these cases. See Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 938 n.6 (1996).

3. In this case, the Phoenix Area Indian Health Service, Owyhee Service Unit (Owyhee PHS Indian Hospital, and Elko Clinic), Owyhee, Nevada is the Activity. The Agency is the Department of Health and Human Services (HHS) and its component, the Indian Health Service (IHS).

4. Under the IPA, 5 U.S.C. § 3371, et seq., employees may be detailed to local governments, including Indian tribes, on special purpose IPA assignments. The special purpose IPA assignments are provided for at 5 U.S.C. § 3373. See part III.B.2.b. below.

5. The Union represents two bargaining units of employees at the Hospital. One unit consists of all professional employees of the PHS Indian Health Service, Owyhee Service Unit and the other unit includes all nonprofessional general schedule and wage grade employees of the Owyhee Service Unit. In Case Nos. DE-CU-60002 and 60004, Local 1386 petitioned to clarify the existing certified units as including the employees who continued to work at the Hospital on special purpose IPA assignments. In Case No. DE-CU-60005, the Agency petitioned to clarify the existing units to exclude these employees.

6. In Hu Hu Kam, the parties executed a self-determination contract, also known as a "638 Contract." See id., slip op. at 4.

7. The Hospital is one of three departments which comprise the Duck Valley Health System. The other departments are the Behavioral Health Department (BHD), whose program areas include alcohol, mental health, social services, and the day care center, and the Preventive Health Department (PHD), whose program areas include preventive health, community health nursing, health education, a senior citizens' center, and a food distribution center. In contrast to the Hospital, most of the employees of the BHD and the PHD are direct tribal hires. Only two IHS employees have been detailed on special purpose IPA assignments to the BHD.

8. Section 7112(a)(1) states:

The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest