United States, Department of Agriculture, Office of the Chief Information Officer, Information Technology Services (Agency) and American Federation of State, County and Municipal Employees, Council 26 (Petitioner/Labor Organization) and United States, Department of Agriculture, Office of the Chief Information Officer, Information Technology Services (Agency/Petitioner) and American Federation of State, County and Municipal, Employees, AFL-CIO, Council 26 (Incumbent/Labor Organization) and National Treasury Employees Union (Incumbent/Labor Organization) and American Federation of Government Employees, AFL-CIO (Incumbent/Labor Organization & Intervenor) and National Federation of Federal Employees, Iam & Aw, AFL-CIO (Incumbent/Labor Organization) and United States, Department of Agriculture, Office of the Chief Information Officer, Information Technology Services (Agency) and American Federation of Government Employees, Local 3354, AFL-CIO (Petitioner/Incumbent Labor Organization) and United States, Department of Agriculture, Office of the Chief Information Officer, Information Technology Services (Agency) and National Treasury Employees Union (Petitioner/Incumbent Labor Organization) and United States, Department of Agriculture, Office of the Chief Information Officer, Information Technology Services (Agency) and National Treasury Employees Union (Petitioner/Labor Organization)

[ v61 p879 ]

61 FLRA No. 177

UNITED STATES
DEPARTMENT OF AGRICULTURE
OFFICE OF THE CHIEF
INFORMATION OFFICER
INFORMATION TECHNOLOGY SERVICES
(Agency)

and

AMERICAN FEDERATION
OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES, COUNCIL 26
(Petitioner/Labor Organization)

WA-RP-05-0033

_____

UNITED STATES
DEPARTMENT OF AGRICULTURE
OFFICE OF THE CHIEF
INFORMATION OFFICER
INFORMATION TECHNOLOGY SERVICES
(Agency/Petitioner)

and

AMERICAN FEDERATION
OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES, AFL-CIO
COUNCIL 26
(Incumbent/Labor Organization)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Incumbent/Labor Organization)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO
(Incumbent/Labor Organization & Intervenor)

and

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
IAM & AW, AFL-CIO
(Incumbent/Labor Organization)

WA-RP-05-0037

_____

UNITED STATES
DEPARTMENT OF AGRICULTURE
OFFICE OF THE CHIEF
INFORMATION OFFICER
INFORMATION TECHNOLOGY SERVICES
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3354, AFL-CIO
(Petitioner/Incumbent Labor Organization)

DE-RP-05-0019

_____

UNITED STATES
DEPARTMENT OF AGRICULTURE
OFFICE OF THE CHIEF
INFORMATION OFFICER
INFORMATION TECHNOLOGY SERVICES
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Petitioner/Incumbent Labor Organization)

AT-RP-05-0029

_____

UNITED STATES
DEPARTMENT OF AGRICULTURE
OFFICE OF THE CHIEF
INFORMATION OFFICER
INFORMATION TECHNOLOGY SERVICES
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Petitioner/Labor Organization)

AT-RP-06-0003

_____

ORDER DENYING
APPLICATION FOR REVIEW

December 7, 2006

_____

[ v61 p880 ]

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.      Statement of the Case

      This case is before the Authority on an application for review of the Regional Director's (RD's) decision and order filed by the American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) under § 2422.31 of the Authority's Regulations. The Agency filed an opposition to the application.

      As relevant to AFSCME's application for review, the RD found that AFSCME's proposed unit for an election is not an appropriate unit within the meaning of § 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute). Accordingly, she dismissed AFSCME's representation petition. After dismissing AFSCME's petition, the RD found appropriate a nationwide unit of all nonprofessional employees of Information Technology Services (ITS) and ordered an election in that unit.

      For the reasons that follow, we deny AFSCME's application for review.

II.      Background and RD's Decision

A.     Background

      Five petitions were filed and consolidated seeking to resolve representation issues that resulted from the establishment of a newly created organization, ITS, under the Office of the Chief Information Officer (OCIO) within the United States Department of Agriculture. ITS was established to consolidate certain information technology functions that previously had been performed by the information technology staffs of three separate service center agencies (SCAs) of the Department of Agriculture: the Farm Service Agency (FSA), the Rural Development mission agency (RD), and the Natural Resources and Conservation Service (NRCS). After the reorganization creating ITS, the employees who transferred to ITS were no longer employees of a specific SCA and were no longer members of any bargaining unit within the SCAs.

      The mission of ITS is to provide information technology support for the national, state, and local programs of FSA, NRCS, and RD. There are five separate divisions within ITS: infrastructure governance, infrastructure definition, infrastructure operations, technical support, and administrative management. The RD acknowledged that although the transferred employees now work for the newly created organization, ITS, their work remains essentially the same. According to the RD, the major difference is that employees now service the entire organization rather than one specific SCA.

      As of the date of the representation hearing, approximately 668 individuals had been transferred from SCAs to ITS. Approximately 199 individuals were ineligible to be represented by a labor organization and approximately 301 employees were eligible for representation, but had not been in any bargaining unit that had been organized by a labor organization prior to the transfer. Of the remaining 168 transferred employees, approximately 66 employees had been represented by NTEU, approximately 35 had been represented by AFSCME, and one employee had been represented by NFFE. The remaining employees had been represented by AFGE or one of its local unions.

      As noted by the RD, ITS has contracted with the Bureau of the Public Debt (BPD) to handle its labor and employee relations. The authority to negotiate collective bargaining agreements rests with the OCIO and the authority to initiate personnel actions resides at a central level within the OCIO. Local managers and supervisors are without authority to formulate policies, take formal disciplinary actions, or recruit to fill vacancies. In addition, local managers and supervisors are not necessarily located in the same geographical area as the employees they supervise and manage.

      As relevant to AFSCME's application for review, AFSCME filed a representation petition seeking an election of a unit of approximately 35 employees in the Washington, D.C. area, similar to the two units it previously represented when the employees worked for specific SCAs. AFSCME contended that the proposed geographically based unit is an appropriate unit within the meaning of § 7112(a) of the Statute. In support, AFSCME asserted that the employees in the proposed unit share a community of interest and that the proposed unit would promote effective dealings with ITS and the efficiency of agency operations.

B.      RD's Decision

      The RD set forth the legal framework for determining whether a unit is an appropriate unit for exclusive recognition. She noted that she was required to assess whether the unit would: (1) ensure a clear and identifiable community of interest among employees in the unit; (2) promote effective dealings with the Agency; and (3) promote the efficiency of the Agency's operations. Decision at 25-26 (citing § 7112(a) of the Statute). [ v61 p881 ]

      She explained that the community-of-interest criterion is intended to ensure that it is possible for employees to deal collectively with management as a single group. Id. at 26 (citing United States Dep't of the Navy, Fleet and Industrial Supply Ctr., Norfolk, Va., 52 FLRA 950, 960 (1997) (FISC)). She noted that in assessing this criterion, the Authority examines such factors as whether employees in the proposed unit: (1) are part of the same organizational component; (2) support the same mission; (3) are subject to the same chain of command; (4) have similar or related duties, job titles, and work assignments; (5) are subject to the same general working conditions; and (6) are governed by the personnel and labor relations policies that are administered by the same personnel office. Id. at 27. She acknowledged that other factors, such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation or integration, may also be relevant. She further acknowledged that to constitute a separate appropriate unit within an organization, application of these factors must demonstrate that the employees in that unit share a separate and distinct community of interest apart from other employees in the organization. Id. at 26 (citing FISC).

      She explained that the criterion of effective dealings pertains to the relationship between management and the exclusive representative selected by unit employees in an appropriate bargaining unit. She noted that in assessing this criterion, the Authority examines a variety of factors, including the following: (1) the past collective bargaining experience of the parties; (2) the locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit; (3) any limitations on the negotiation of matters of critical concern to employees of the proposed unit; and (4) the level at which labor relations policy is set in the agency. Id. at 27 (citing FISC, 52 FLRA at 961).

      Finally, she explained that the criterion of efficiency of agency operations pertains to whether the structure of the bargaining unit bears a rational relationship to the operational and organizational structure of the agency. Id. at 28 (citing United States Dep't of the Air Force, 82nd Training Wing, 361st Training Squadron, Aberdeen Proving Ground, Md., 57 FLRA 154, 156-57 (2001) (Aberdeen Proving Ground)). She noted that in determining the effect of the proposed unit on the efficiency of agency operations, the Authority considers factors pertaining to cost, productivity, and resources. Id. (citing Aberdeen Proving Ground, 57 FLRA at 157).

      The RD examined the operation and organization of ITS in relation to these criteria and determined that the proposed unit is not an appropriate unit. Id. at 28-29.

      In assessing community of interest, the RD noted that although all of the employees in the proposed unit are ITS employees, they are not all in the same organizational component of ITS. She also viewed it as significant that none of the employees in the proposed unit are in the administrative management division, which is most closely related to a "headquarters" function. Consequently, the RD concluded that there is no significant headquarters function identified with the Washington, D.C. geographical area. In addition, although the RD acknowledged that Washington, D.C. area employees share similar duties, she noted that they answer to numerous different supervisors and perform differing responsibilities within ITS's overall structure. She also found that although they share similar working conditions and are governed by the same labor relations policies that are administered by OCIO and serviced by BPD, "this is common to all of ITS." Id. at 29-30. Consequently, she determined that the employees of the proposed unit did not share a community of interest separate and distinct from their coworkers in other locations.

      In assessing effective dealings, the RD acknowledged that there was not an extensive record of past bargaining history with the new employer. However, she noted that ITS has not delegated policy matters to the site supervisors and that the local supervisors do not have authority to negotiate or to change working conditions. She also noted not only that the supervisors of the employees in the proposed unit are not all physically located in the Washington, D.C. area, but that significantly, many of the employees have no onsite supervisor at all. In addition, she found that a separate unit of approximately 35 employees out of an organization of approximately 468 employees, like the proposed unit in Dep't of the Navy, Naval Computer and Telecommunications Area, Master Station-Atlantic Base Level Communications Dep't, Regional Operations Div, Norfolk, Virginia Base Communications Office-Mechanicsburg, 57 FLRA 230 (2001) (Member Wasserman dissenting) (Dep't of the Navy), "would create additional responsibilities to maintain uniform policies and procedures." Id. at 30 (quoting Dep't of the Navy, 57 FLRA at 232). Accordingly, she determined that a separate unit of Washington, D.C. area employees would not promote effective dealings. See id.

      In assessing efficiency of agency operations, she concluded that there was no rational relationship between the structure of the proposed unit and the operational and [ v61 p882 ] organizational structure of ITS. In support of her conclusion, she noted that employees are organized functionally, rather than geographically, and interact with one another over geographical and functional lines. She also noted that not all employees have on site supervision and that agency policies are uniformly initiated at the national level and are intended to be uniform without regard to geographical location. Accordingly, she determined that the proposed unit would not promote the efficiency of agency operations. See id. at 30-31.

      In sum, she decided that AFSCME's proposed unit for an election is not an appropriate unit within the meaning of § 7112(a) and dismissed AFSCME's petition.

III.     Positions of the Parties

A.     AFSCME's Application for Review

      AFSCME contends that review of the RD's decision "is warranted under § 2422.31(c)(3)(i) because the determination flies in the face of established law." Application at 1. In addition, AFSCME contends that the RD's decision "warrants reconsideration by the Authority under [§ 2422.31(c)(2)] as a matter of important public policy." Id.

      In contending that its application for review should be granted, AFSCME asserts that the RD's "finding that a Washington, DC area unit is not an appropriate unit is contrary to sound labor relations policy, and for that reason warrants review by the Authority under [§ 2422.31(c)(2)]." Id. at 6. AFSCME argues that the RD's determination that the proposed unit is not appropriate because the work crosses geographic lines is not consistent with the Statute. AFSCME claims that allowing the RD's decision to stand will encourage agencies to reorganize into national functional units and insist on nationwide bargaining units. AFSCME also claims that the remote supervision resulting from the proliferation of jobs that can be performed electronically does not justify departure from the statutory purpose of ensuring that employees enjoy the fullest freedom in exercising their rights.

      In contending that the review should be granted under § 2422.31(c)(3)(i), AFSCME claims that the RD's decision that the proposed unit is not appropriate is contrary to the fundamental principle that the proposed unit need not be the most appropriate. AFSCME also claims that the RD's determination as to each criteria under § 7112(a) is contrary to established law. AFSCME asserts that the RD's findings confirm that its proposed unit is appropriate and that consequently, the Authority should review and reverse the RD's decision.

      As to community of interest, AFSCME asserts that the RD found that "there is no evidence these employees share a community of interest." Application at 2. AFSCME claims that the employees in the proposed unit share a community of interest and that consequently, the RD's finding is a departure from established law.

      As to effective dealings, AFSCME asserts that there was no evidence that either ITS or OCIO could not deal with a unit of Washington, D.C. employees. AFSCME maintains that there was no evidence that the employees' previous supervisors handled policy matters or negotiations and that the absence of an onsite supervisor is common in internet work environments. In addition, AFSCME disputes the RD's reliance on Dep't of the Navy and argues that Dep't of the Navy does not justify the RD's determination that the proposed unit would not promote effective dealings.

      As to efficiency of operations, AFSCME notes that the OCIO's associate chief testified that nothing stood in the way of dealing with a unit of Washington, D.C. area employees and asserts that this testimony is undisputed evidence that efficiency of the Agency's operations would not be impaired or jeopardized by the proposed unit. In addition, AFSCME claims that none of the facts on which the RD relied to conclude that the efficiency of the Agency's operations would suffer from the proposed unit supports that conclusion.

B.      ITS's Opposition

      ITS contends that the RD's decision was proper and in accordance with established law. ITS argues that the RD accurately applied existing case law in determining that the proposed unit would not ensure a clear and identifiable community of interest and would not promote effective dealings or the efficiency of Agency operations. ITS maintains that AFSCME's application is nothing more than disagreement with the RD's decision and that the application should be denied.

IV.      Analysis and Conclusions

A.      Application for Review Grounds

      In contending that its application for review should be granted, AFSCME relies on §§ 2422.31(c)(2) and (3)(i). Section 2422.31 provides, in relevant part:

(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
     . . . . [ v61 p883 ]
(2) Established law or policy warrants reconsideration; or
     (3) There is a genuine issue over whether the Regional Director has:
     (i) Failed to apply established law[.]

B.      The application fails to demonstrate that review is warranted under § 2422.31(c)(2) because established policy warrants reconsideration.

      An assertion that established policy warrants reconsideration states a ground on which the Authority may grant an application for review under § 2422.31(c)(2). E.g., United States Dep't of Veterans Affairs, 60 FLRA 887, 888 (2005) (DVA). In order for review to be granted, the application must identify an asserted established policy and argue that reconsideration of the established policy is warranted. See id. In this case, AFSCME argues that reconsideration of the RD's decision is warranted under § 2422.31(c)(2) because it "is contrary to sound labor relations policy[.]" Application at 6. However, AFSCME does not argue that any established policy should be reconsidered by the Authority. Instead, AFSCME argues that the RD's determination that the proposed unit is not appropriate because the work crosses geographic lines is not consistent with the Statute. Consequently, AFSCME fails to demonstrate that review is warranted under § 2422.31(c)(2). See DVA, 60 FLRA at 888.

C.      The application fails to demonstrate that review is warranted under § 2422.31(c)(3)(i) because there is a genuine issue over whether the RD failed to apply established law.

      Under established law, to determine whether the proposed unit is appropriate, the RD was required to assess whether the unit would: (1) ensure a clear and identifiable community of interest among employees in the unit; (2) promote effective dealings with the Agency; and (3) promote the efficiency of the Agency's operations. E.g., United States Dep't of Homeland Security, Bureau of Customs and Border Protection, 61 FLRA 485, 494 (2006) (CBP). A proposed unit must meet all three criteria to be found appropriate. The Authority has established certain factors for assessing each criterion, but has not specified the weight of individual factors or a specific number of factors necessary to establish an appropriate unit. Instead, determinations are made on a case-by-case basis. Id.

      In contending that review of the RD's decision is warranted, AFSCME maintains that the RD's determination as to each criteria under § 7112(a) is contrary to established law and that overall, the decision is contrary to the principle that a proposed unit need not be the most appropriate.

1.      The application fails to demonstrate that review is warranted because there is a genuine issue over whether the RD failed to apply established law in determining that the proposed unit would not ensure a clear and identifiable community of interest among employees in the unit.

      As specifically acknowledged by the RD, assessment of the community-of-interest criterion requires examining such factors as whether employees in the proposed unit: (1) are part of the same organizational component; (2) support the same mission; (3) are subject to the same chain of command; (4) have similar or related duties, job titles, and work assignments; (5) are subject to the same general working conditions; and (6) are governed by the personnel and labor relations policies that are administered by the same personnel office. Id. As noted by the RD, other factors, such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation or integration, may also be relevant. As the RD recognized, for the proposed unit to constitute a separate appropriate unit within the organization, application of these factors must demonstrate that the employees in the proposed unit share a separate and distinct community of interest apart from other employees in the organization. Id.

      In arguing that review is warranted under § 2422.31(c)(3)(i), AFSCME asserts that the RD found that "there is no evidence these employees share a community of interest." Application at 2. However, AFSCME misquotes the RD's decision. The RD specifically found as follows: "There is no evidence that these employees share a community of interest separate and distinct from their coworkers in the other locations." Decision at 30. Under established law, "[i]n order for a proposed unit to constitute a separate appropriate unit within an organizational component, application of [the community-of-interest criterion] must demonstrate that the employees in that unit share a separate and distinct community of interest apart from the other employees in the component." CBP, 61 FLRA at 494. AFSCME does not address the requirement of a separate and distinct community of interest. Moreover, the factors the RD relied on to find that no such separate and distinct community of interest exists are appropriate under Authority precedent. Consequently, AFSCME fails to demonstrate that review is warranted because there is a [ v61 p884 ] genuine issue over whether the RD failed to apply established law in determining that the employees of the proposed unit do not share a separate and distinct community of interest. [*] 

2.      The application fails to demonstrate that there is a genuine issue over whether the RD failed to apply established law in determining that the proposed unit would not promote effective dealings with the Agency.

      As specifically acknowledged by the RD, the criterion of effective dealings pertains to the relationship between management and the exclusive representative selected by unit employees in an appropriate bargaining unit. As noted by the RD, in assessing this requirement, the Authority examines a variety of factors, including the following: (1) the past collective bargaining experience of the parties; (2) the locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit; (3) any limitations on the negotiation of matters of critical concern to employees of the proposed unit; and (4) the level at which labor relations policy is set in the agency. E.g., Aberdeen Proving Ground, Md., 57 FLRA at 156 (citing FISC, 52 FLRA at 961). In our view, the RD accurately identified established law in determining that the proposed unit would not promote effective dealings.

      In applying the factors established by the Authority to determine that the proposed unit would not promote effective dealings, the RD emphasized that ITS has not delegated policy matters to the site supervisors and that the local supervisors do not have authority to negotiate or to change working conditions. She also emphasized not only that the supervisors of the employees in the proposed unit are not all physically located in the Washington, D.C. area, but that significantly, many of the employees have no onsite supervisor at all. In addition, she found that a separate unit of approximately 35 employees out of an organization of approximately 468 employees, like the proposed unit in Dep't of the Navy, 57 FLRA 230, would create additional responsibilities to maintain uniform policies and procedures. AFSCME has not demonstrated that the RD in making this determination failed to properly apply the law. The record supports the RD's determination and AFSCME fails to demonstrate that the determination is inconsistent with established precedent.

      In arguing otherwise, AFSCME asserts that there was no evidence that either OCIO or ITS could not deal with the proposed unit and that Dep't of the Navy does not support the RD's determination. We reject the assertions.

      AFSCME's assertion that no evidence showed that ITS or OCIO could not deal with the proposed unit does not demonstrate under established law that the dealings would be effective within the meaning of § 7112(a). The assertion that previous supervisors did not handle policy matters and that the lack of onsite supervision is not uncommon ignores that the RD was required to assess effective dealings in relation to the operation and organization of the newly created ITS.

      AFSCME's challenge to the RD's reliance on Dep't of the Navy is unpersuasive. As in Dep't of the Navy, the RD's examination of the factors relevant to the assessment of effective dealings in determining that the proposed unit would not promote effective dealings is consistent with Authority case law.

      Consequently, AFSCME fails to demonstrate that review is warranted because there is a genuine issue over whether the RD failed to apply established law in determining that the proposed unit would not promote effective dealings.

3.      The application fails to demonstrate that review is warranted because there is a genuine issue over whether the RD failed to apply established law in determining that the proposed unit would not promote the efficiency of the Agency's operations.

      As also specifically acknowledged by the RD, the criterion of efficiency of agency operations pertains to whether the structure of the bargaining unit bears a rational relationship to the operational and organizational structure of the agency. As the RD noted, in determining the effect of the proposed unit on the efficiency of agency operations, the Authority considers factors pertaining to cost, productivity, and resources. FISC, 52 FLRA at 961-62. The RD accurately identified established law in determining that the proposed unit would not promote the efficiency of agency operations, and AFSCME has not demonstrated that she failed to properly apply the law. [ v61 p885 ]

      In arguing otherwise, AFSCME asserts that OCIO's associate chief testified that nothing stood in the way of dealing with the proposed unit and that none of the facts on which the RD relied support her determination. The RD determined that there was no rational relationship between the structure of the proposed unit and the operational and organizational structure of ITS. In support of her determination, she noted that employees are organized functionally, rather than geographically, and interact with one another over geographical and functional lines. She also noted that not all employees have on site supervision and that agency policies are uniformly initiated at the national level and are intended to be uniform without regard to geographical location. Accordingly, she concluded that the proposed unit would not promote the efficiency of agency operations. AFSCME fails to demonstrate that the evidence on which the RD relied does not support a determination that the proposed unit would not promote efficiency of agency operations under established precedent. Consequently, AFSCME fails to demonstrate that review is warranted because there is a genuine issue over whether the RD failed to apply established law in determining that the proposed unit would not promote the efficiency of Agency operations.

4.      The application otherwise fails to demonstrate that review is warranted because there is a genuine issue over whether the RD failed to apply established law in determining that the proposed unit is not appropriate.

      AFSCME maintains that review of the RD's decision is warranted because overall, the decision is contrary to the principle that a proposed unit need not be the most appropriate unit. Because AFSCME has failed to demonstrate that review is warranted of the RD's determination that the proposed unit is not appropriate, the decision is not contrary to the principle that the unit need not be the most appropriate.

V.      Order

      The application is denied.



Footnote * for 61 FLRA No. 177 - Authority's Decisio