National Labor Relations Board (Agency) and National Labor Relations Board Union (Petitioner/Exclusive Representative)
[ v62 p25 ]
62 FLRA No. 9
RELATIONS BOARD UNION
DECISION AND ORDER ON REVIEW
March 14, 2007
Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member
I. Statement of the Case
This case is before the Authority on an application for review filed by the Agency under § 2422.31 of the Authority's Regulations. The Agency also requested a stay of the RD's decision (Decision) while its application is pending before the Authority. Petitioner National Labor Relations Board Union (Union) filed an opposition to the Agency's application and its request for a stay.
The Regional Director (RD) found that a consolidated bargaining unit sought by the Union consisting of both professional and nonprofessional employees was appropriate. He ordered an election for the professional employees to determine whether they wished to be included in that unit. [n1] Alternatively, the RD determined that a consolidated unit excluding the professional employees would be appropriate, in the event the professional employees voted not to be included in the same unit as the nonprofessional employees.
On January 5, 2007, the Authority granted the Agency's application for review on the ground that the application raised an issue for which there is an absence of precedent, pursuant to § 2422.31(c)(1) of the Authority's Regulations. The Authority also denied the Agency's request for a stay. Relying on Dep't of the Army, United States Army Aviation Missile Command, (AMCOM) Redstone Arsenal, Ala., 55 FLRA 640 (1999) (Redstone), the Authority explained that the certification ordered by the RD does not become effective until after the application for review is resolved, thus obviating the harm that the Agency alleged would occur absent a stay. The Authority also ordered that, if the RD conducted the election he had found necessary while the application was pending before the Authority, then the RD should impound the ballots until after the application is resolved. See Redstone, 55 FLRA at 643-44.
For the following reasons, we conclude that the Agency has not established that the RD erred in finding the consolidated bargaining unit to be appropriate.
II. Background and RD's Decision
The Agency administers and enforces the National Labor Relations Act (NLRA), conducting secret ballot elections to determine whether employees wish to be represented by a union and resolving alleged unfair labor practices (ULPs) committed by employers and unions in the private sector. These functions are discharged by two components of the Agency: (1) the General Counsel (GC), and (2) the Chairman and Members of the NLRB (Board). The two components have specific roles set out by statute and Agency delegation. The GC investigates and prosecutes ULP cases and processes representation petitions, which involves conducting elections and resolving disputes. The Board is a quasi-judicial body that decides appeals from decisions of administrative law judges in ULP cases and from decisions of regional directors in representation cases. By law, the GC has the authority to supervise all attorneys of the Agency, with the exception of those performing legal work directly for Board members, and all employees in the Agency's regional offices. 29 U.S.C. § 153(d) (§ 3(d)). [n2] [ v62 p26 ]
The Union represents four separate bargaining units of Agency employees, as follows:
- nonprofessional employees of the Board in Washington, DC;
- nonprofessional employees of the GC in Washington, DC;
- nonprofessional employees of the GC in regional offices; and
- professional employees of the GC in regional offices. [n3]
The Union filed a petition seeking to consolidate the four bargaining units pursuant to § 7112(d) of the Statute. [n4] The parties stipulated that the consolidation of all regional office employees would be appropriate. The Agency objected to the consolidation of headquarters employees in any manner. [n5]
The RD found that certain functions of the Agency report to only the GC or the Board component and do only the work of that component; that certain functions report to one component, but operate on behalf of both components; and that other functions report to both components, as follows:
- The Agency's employees in its 32 regional offices report to the GC, although employees who resolve representation matters are exercising authority that the Board has delegated to the regional directors.
- There are headquarters divisions that report only to the GC. However, several of these divisions serve both the GC and the Board, including the Office of Special Counsel, which handles all personnel litigation, and offices that handle injunction litigation and enforcement.
- There are other divisions that report only to the Board. However, several of these divisions serve both the Board and GC, including the offices that handle media relations and publications. The Office of Executive Secretary operates like a clerk's office of a court, providing services for the Board and having the same relationship to the GC as it does to other party litigants before the Board.
- There are a number of offices that report to both the Board and the GC, including the Office of the Inspector General, the Office of Employee Development, the Office of the Chief Information Officer, and the Division of Administration, which performs budget, human resources, and other administrative tasks.
The RD found that approximately 600 of the Agency's 1875 full time positions are located in Washington, DC. He concluded that hiring for all support staff positions is centralized in the Office of Human Resources, which prepares vacancy announcements and certificates of most qualified applicants, which are then provided to managers who conduct interviews and make selections. With respect to professional positions in the regions, the RD determined that attorney recruiting is done in the regions and field examiner recruiting is done through a variety of centralized programs, but that selections for both positions must be approved by the Assistant GC.
The RD also concluded that a variety of working conditions are either shared or identical for Board and GC employees. For example, he found that orientation and training for Board and GC employees are conducted jointly and that all employees have access to an exchange program that permits employees to apply for two or four week details throughout the Agency. In particular, that RD also noted that the exchange program for support staff of the GC and Board Washington employees is defined by identical language in the two collective bargaining agreements covering these employees and that the annual solicitation for this program was sent to all employees, regardless of which bargaining unit encompassed them. According to the RD, employees in all four bargaining units have access to a transfer program, award money is determined Agency-wide, and the Voluntary Leave Transfer Program applies Agency-wide.
In establishing employment policies, the RD found that the Division of Administration has the authority to [ v62 p27 ] issue such policies on routine matters. On more significant issues, he determined that this division takes the lead, sending a memorandum and recommendation to the Board and GC. Where the two components do not agree initially, they meet to discuss their differences of opinion. According to the RD, consensus is achieved the "vast majority of the time," resulting in a unified Agency policy applicable to all employees. Decision at 13. The RD also stated that, the Agency provided only one example of a difference of opinion on a policy matter relevant to the bargaining units at issue here: a change in the method of EEO investigation requested and implemented only by the GC. According to the RD, the Agency indicated that this different policy was discontinued after two or three years because having different policies for the EEO office depending on where the employee worked "had become a problem[.]" Id.
With respect to labor relations, the RD determined that significant policies are set by the Chairman of the Board and the GC. He further found that once these policies were established, the Human Resources Office of the joint Division of Administration negotiates agreements for both components. However, the RD concluded that day-to-day labor relations for the regional offices are handled by an Assistant GC in the Division of Operations Management, which reports directly to the Deputy GC. According to the RD, this Assistant GC responds to information requests, drafts grievance responses at the third step and "works with the Human Resources Office" on Agency-wide initiatives. Id. at 14. The RD noted testimony by this official indicating that coordination with the Human Resources Office was necessary because "the Agency is collaborative in the decision-making process" and does not want to adversely affect either the Board or GC component. Id.
In addition, the RD determined that the Assistant GC coordinates with the Human Resources Office when grievances are filed over similar issues in the Board and GC components, so that responses to not undermine "either side of the Agency's position." Id. The RD found that Agency responses in the record concerning Union filed grievances over one common issue were "virtually identical." Id. With respect to another grievance filed by all four units at issue here, the RD noted that the Agency issued a consolidated response, drafted by the Assistant AG and also signed by a labor relations officer who represented both the Board and GC, acting as a "go-between." Id.
The RD also stated that bargaining for the Board and GC headquarters units "has been conducted jointly, since at least 1970 or 1971." Id. This coordinated bargaining is conducted by the management representatives from the Board and GC and "resulted in virtually identical contracts for the two headquarters support staff units," according to the RD. Id. The RD also determined that bargaining for the two field units has been conducted jointly and has resulted in separate agreements that are "in large measure, also identical." Id. The RD further found that certain issues had been negotiated together for all four bargaining units at issue here, including the EEO process, the drug free policy, and the gain-sharing policy. However, the RD noted that the Deputy GC determines management proposals when a bargaining issue arises "exclusive to GC employees[.]" Id.
With respect to working conditions, the RD found that payroll for all employees is processed under one system. He also determined that the Agency's reduction-in-force policy is Agency-wide and stated that any competitive area must include all Agency employees, with no distinctions between the Board and GC.
Evaluating the consolidated bargaining unit requested by the Union, the RD rejected the Agency's arguments that § 3(d) and the distinct statutory roles of the GC and the Board preclude consolidation. The RD applied the Authority's decision in United States Dep't of Defense, Nat'l Guard Bureau, 55 FLRA 657 (1999) (National Guard), and found that § 3(d) does not specifically address labor-management relations and that the Statue does not indicate any special rules that should govern this situation. The RD concluded that the history of the Agency's operation indicated collaboration between the two components concerning the establishment of working conditions, indicating that § 3(d) does not preclude cooperation between the components. Further, the RD found that, pursuant to § 3(d), the Agency has established practices to prevent all forms of ex parte contact between prosecuting attorneys and decision writers, that these practices currently restrict the contact of certain employees who are in the same bargaining unit and do not apply only between the separate bargaining units, and that consolidation would not disturb such practices.
The RD rejected the Agency's reliance on the Authority's decision in United States Dep't of the Treasury, Internal Revenue Service, 56 FLRA 486 (2000) (IRS), for the proposition that the Agency's internal administrative delegations determined the appropriate units. See n.2, supra. The RD concluded that IRS required that § 3(d) and the Agency's delegations be considered, but that that appropriate unit determinations should generally be "based on testimony about what exists in reality." Decision at 16 (quoting IRS, 56 FLRA [ v62 p28 ] at 488). The RD found that § 3(d) and the delegations were not an impediment to consolidation.
The RD next assessed the three appropriate unit criteria set out in § 7112(a) of the Statute, first finding that the employees shared a community of interest. [n6] He concluded that, while the structure of the Agency is "somewhat" bifurcated between the Board and the GC, this was "not as clear cut for GC employees in the field" because they work on representation cases on behalf of the Board while remaining under the "ultimate authority" of the GC. Decision at 18. He further found that the headquarters mission of each component is similar and supportive of the role played by the field and that the headquarters operations of both the GC and the Board provide oversight to field employees. In this regard, the RD noted that employees in both components work on the same cases and that there is a single Agency budget and strategic plan, indicating an integration of functions in support of a common mission.
The RD further found that the employees at issue have similar working conditions and are subject to many Agency-wide policies, attend the same orientation program, and have access to a common exchange and transfer program. He also determined that the distribution of similar jobs throughout the Agency and the availability of upward mobility from positions in the nonprofessional unit to positions in the professional unit indicated that there was interchange between the current bargaining units.
The RD also concluded that the locus of personnel decision-making is at the headquarters level, favoring a finding of consolidation. He found that, while the GC and Board have authority over employees that fall under each component, there are many examples of Agency-wide policies. He further determined that the Division of Administration is responsible for labor relations policies and budget matters and that overall personnel decision-making authority rests at headquarters, which favors a finding of consolidation.
Turning to the second appropriate unit criterion -- effective dealings -- the RD determined that, operating under § 3(d), there had been no conflict between the GC and the Board on matters affecting working conditions and that significant labor and employee relations policies for all employees had been formulated by the Division of Administration, either independently or in consultation with the Board and the GC. The RD noted that the Assistant GC plays a role in labor and employee relations, but found that this official acts primarily on day-to-day matters and that, on negotiations, the Assistant GC takes direction from the Division of Administration.
Further, the RD found that the four bargaining units had virtually identical collective bargaining agreements and that the parties had engaged in over 30 years of coordinated bargaining with the different units, supporting a conclusion that consolidation would promote effective dealings. The RD noted that a petitioner seeking consolidation does not have to prove that consolidation will improve "collective bargaining relationships," but only that a consolidated unit is appropriate. Id. at 20 (quoting United States Dep't of the Air Force, Air Force Materiel Comm'd, Wright-Patterson Air Force Base, Oh., 55 FLRA 359, 364 (1999) (AFMC)).
With respect to the third appropriate unit criterion -- efficiency of agency operations -- the RD concluded that the consolidated unit could result in economic savings and efficiency because the Agency staff overseeing the four existing units is in the Agency's headquarters. The RD also stated that in many respects the division between the Board and GC with respect to labor relations is "on paper only." Decision at 21. Further, the RD noted that consolidation should eliminate the likelihood of having to bargain over the same issue multiple times for multiple units.
Having determined that all three appropriate unit criteria were satisfied, the RD found the consolidated unit to be appropriate and ordered an election for the professional employees to vote whether they wished to be included in the consolidated unit.
III. Positions of the Parties
The Agency argues that the RD failed to give full consideration to the statutory independence of the GC and the Board set out in § 3(d). In this regard, the Agency asserts that Congress modified the structure of the Agency by passing § 3(d) in 1947 to eliminate "the NLRB's alleged blurring of its prosecutorial and adjudicatory functions[.]" Application at 7-8. According to the Agency, to resolve this perceived problem, Congress created an independent GC, appointed by the President, with the statutory discretion to dismiss a charge or file a complaint where a ULP charge has been filed. The Agency states that there has been cooperation and a lack of conflict between the two components of the Agency, [ v62 p29 ] but that this cooperation is "fostered by the `safety valve' of independence bestowed on each side," which "remains free to disagree on certain matters and go its own way." Id. at 10. According to the Agency, the RD's decision would undo this "model of `complete separation'" between prosecutorial and judicial functions enacted by Congress. Id. at 10-11 (quoting Kenneth Culp Davis, Administrative Law Text at 258 (3d ed. 1972) (Davis)).
According to the Agency, in order to comply with the independence mandated by § 3(d), the two components of the Agency have separate authority to supervise and set conditions of employment for their own employees. The Agency relies on testimony indicating that, after the passage of § 3(d), there were a series of delegations from the Board to the GC to clarify the authority exercised by each component. According to this testimony, `[t]here is no disagreement about there being a . . . line that separates the . . . two parts of the Agency[,]" but that where that line is remains "a gray area." Application at 14 (quoting transcript at 387-88). The Agency also points to several instances where the GC or the Board has implemented a policy different from the other, including differences in the performance appraisal system and grade structure of attorneys and a two-year period where the GC followed different procedures for interviewing supervisors and managers during the investigation of EEO complaints. The Agency also asserts that, even though regional office employees performing representation work are performing work on behalf of the Board, they are supervised and appraised by GC officials.
The Agency argues that there is an "absence of precedent" concerning the effect of § 3(d) on appropriate unit determinations under § 7112 of the Statute. 5 C.F.R. § 2422.31(c)(1). The Agency argues that the independence of the GC and the Board is a "unique circumstance not previously faced by the Authority," and that § 3(d) deals directly with a key issue in federal sector labor relations, the locus of supervisory authority. Id. at 21, 22.
Restating its arguments concerning § 3(d), the Agency argues that the RD's decision results in a "repeal by implication" of that section, undermining the policy of prosecutorial independence. According to the Agency, by focusing on the "`reality' of cooperation and collaboration" between the GC and the Board, the RD essentially repealed § 3(d), mandating that the two components must agree on joint policy. Id. at 23 n.14, 24.
The Agency next argues that "[e]stablished law or policy" warrants review because the RD's decision conflicts with § 3(d). 5 C.F.R. § 2422.31(c)(2). In this regard, the Agency asserts that the decision disregards the GC's authority as an independent prosecutor and established the GC and Board as "joint (and presumably co-equal) decision-makers[.]" Id. at 25.
The Agency also claims that the RD "[f]ailed to apply established law" in finding a consolidated unit appropriate. 5 C.F.R. § 2422.31(c)(3)(i). The Agency argues that the Authority should apply the same reasoning that it used in National Guard, 55 FLRA 657, where a statutory provision vesting supervisory control in state officials was found to preclude consolidation. The Agency claims that, as in National Guard, it is necessary to deny consolidation in this case because the statutory scheme would not be workable if "employees do not have a right to negotiate with the same officials who exercise authority over these conditions of employment." Application at 29 (quoting National Guard, 55 FLRA at 661). Further, the Agency argues that the RD misapplied IRS, 56 FLRA 486, by reading out of context an isolated phrase in that decision and disregarding the legislative context of § 3(d) in this case.
Finally, the Agency argues that the RD committed "clear and prejudicial errors" on "substantial" factual matters in applying the appropriate unit criteria. 5 C.F.R. § 2422.31(c)(3)(iii). With respect to the community of interest criterion, the Agency alleges that the RD made four errors. First, the Agency argues that the RD erred in concluding that some employees work in divisions that report to both the GC and the Board, asserting that the employees in offices with a "hammock" relationship to both sides of the Agency actually report to the GC. Application at 30. Second, the Agency argues that the RD erred in finding that field employees' work on representation cases on behalf of the Board indicates that the two components are not separate. According to the Agency, this finding confuses programmatic delegation by the Board with supervisory authority over these employees, which remains solely with the GC. Third, the Agency asserts that the RD erred in finding that the Division of Administration was responsible for budgetary policy and labor relations policy, rather than SES level employees in the two components of the Agency. Fourth, the Agency claims that the RD's finding that the employees shared the overall mission of administering the NLRA fails to recognize the separate missions of the two components of the Agency.
With respect the second appropriate unit criterion -- effective dealings -- the Agency asserts that the RD misunderstood the record evidence concerning the role of the Assistant GC for Labor Relations and that the RD implied that this official reports to a centralized labor [ v62 p30 ] relations authority when he actually reports to the GC. The Agency also objects to the RD's conclusion that the authority to set conditions of employment rests with the Board and GC, jointly, when neither component of the Agency has abdicated its independent authority. In this regard, the Agency argues that the tradition of separate authority weighs heavier in the balance of factors used to assess effective dealings than does the tradition of cooperation between the two components of the Agency and, as a result, supports a conclusion that the consolidated unit would not promote effective dealings. According to the Agency, the Authority should require that a consolidation does not diminish effective dealings and should not discount the Agency's long history of separate bargaining.
With respect to the third appropriate unit criterion -- efficiency of operations -- the Agency objects to the RD's conclusion that the division between the Board and GC with respect to labor relations is "on paper only" and that bargaining one contract would be more efficient than the current practice. Application at 38 (quoting Decision at 21). According to the Agency, joint bargaining with a number of independent decision-makers increases the likelihood of inefficiency and ineffectiveness, as evidenced by record evidence indicating that joint bargaining has been cumbersome at the Agency in the past.
The Union argues that, contrary to the claims of the Agency, § 3(d) did not divide the GC and Board into separate entities. According to the Union, § 3(d) granted the GC prosecutorial independence from the Board, but not administrative autonomy. The Union asserts that there is a "constant interweaving between the authorities of the Board and the GC" and no "bright line" between the tasks performed by the two components. Opposition at 8. As an example, the Union points to the Agency's unified budget, under which the Board and the GC jointly devise an "Operating Plan" that sets the budget for many items on an agency-wide basis and which is adjusted between the Board and GC during the year depending on operational considerations. Id. at 10. According to the Union, the Board has an impact on the operations of the GC through the budget process, affecting the size of its staff, pay raises, awards, training and travel money.
As an example of the Agency's uniform budget process, the Union points to correspondence between the Union and the Assistant GC for Labor Relations in FY2006, stating that funds that had been formally allocated to the Board component were "available for compensation and benefits Agency wide" and had merely been "parked" in the Board's budget. Opposition at 11 (quoting Petitioner's Ex. 109 (emphasis in opposition)). According to the Union, the Agency took Agency-wide measures to address a budget shortfall that year that were announced in joint memoranda issued by the Chairman of the Board and the GC.
The Union argues that there are additional examples that illustrate the blending of Board and GC functions. According to the Union, the Agency has a single mission, the administration and enforcement of the NLRA, which is reflected in a single strategic plan that sets goals that apply to both components of the Agency. In this regard, the Union asserts that the GC and Board have shared responsibility for representation cases, with GC staff exercising responsibility delegated from the Board and the Board entertaining appeals from decisions made by the regional directors. With respect to ULP cases, the Union claims that the Board must approve formal settlements made by the GC and requests by the GC to seek injunctions, and that the GC is responsible for enforcing Board orders and ensuring compliance where a violation has been found. The Union points to a variety of other situations where the GC staff acts as "lawyer for the Board," rather than as prosecutor, including representing the Board in employment litigation before grievance arbitrators, the FLRA, the Merit Systems Protection Board, and in EEO cases. Opposition at 18.
The Union next asserts that nothing in § 3(d) prohibits the consolidation of the Board and GC units. In this regard, the Union relies on testimony by the Deputy GC that the Board and the GC could propose different working conditions for the two components in a consolidated unit. The Union also relies on testimony by another Agency official that the current collective bargaining agreement contains different promotion waiting periods for GC attorneys and field examiners in the same bargaining unit.
Turning to the Statute, the Union argues that Congress was aware of the special status of NLRB employees under § 3(d) when it passed the Statute, but that it did not prohibit GC and Board employees from being in the same appropriate bargaining unit. The Union notes that § 7121(c)(1) of the Statute specifically bars employees engaged in administering labor-relations statutes, such as NLRB employees, from representation by unions who also represent employees covered under those statutes. The Union argues that Congress' concern with potential conflicts of interest of NLRB employees did not extend to concern over consolidating GC and Board employees. [ v62 p31 ]
With respect to the Agency's claim that the RD's decision is inconsistent with the Authority's decision in National Guard, the Union argues that consolidation was inappropriate in that case because there was a complete separation between the personnel and labor functions of the states at issue. According to the Union, this contrasts with the joint decision-making of the Board and GC in this case. The Union also claims that the RD properly applied the Authority's decision in IRS, which looks to existing personnel and labor relations structures. According to the Union, the agency in that case did not have structures in place to connect separate personnel offices, and such structures are already in place at the Agency.
The Union next claims that the three appropriate unit criteria are met by the consolidated unit. With respect to the community of interest criteria, the Union asserts that personnel and labor relations functions are centralized and that all of the employees are subject to a wide variety of Agency-wide personnel policies. The Union argues that the criterion of effective dealings is met because there is a history of multiple unit bargaining at the Agency level, both for term agreements and for mid-term or single-issue bargaining and because grievances arise that affect employees of both the GC and the Board. Next, the Union argues that the criterion of efficiency of operations is met because consolidation would reduce fragmentation and promote a comprehensive bargaining structure.
IV. Analysis and Conclusions
Section 7112(d) of the Statute permits consolidation of two or more bargaining units represented by the same exclusive representative "if the Authority considers the larger unit to be appropriate." This provision was intended by Congress to "better facilitate the consolidation of small units" into more comprehensive ones. AFMC, 55 FLRA at 361 (quoting 124 Cong. Rec. H9634 (daily ed. Sept. 13, 1978) (statement of Representative Udall)). Consolidation serves a statutory interest in reducing unit fragmentation and in promoting an effective, comprehensive bargaining unit structure. See Army and Air Force Exchange Serv., Dallas, Tx., 5 FLRA 657, 661-62 (1981) (AAFES); Air Force Logistics Comm'd, United States Air Force, Wright-Patterson Air Force Base, Oh., 7 FLRA 210, 214 (1981) (AFLC). The reference in section 7112(d) to the consolidation of "appropriate" units incorporates the appropriate unit criteria established in section 7112(a). AFMC, 55 FLRA at 361.
A. Section 3(d) of the NLRA does not restrict the appropriateness of a bargaining unit at the Agency containing employees of the Board and General Counsel. [n7]
The Agency's view is that the independent authority of the GC to supervise attorneys who do not work directly for the Board and to prosecute ULP complaints creates a "complete separation" of the two components of the Agency, making it necessary that employees of the two components be in separate bargaining units. Application at 11 (quoting Davis at 258). According to the Agency, the separate line of supervisory authority for the GC is "part and parcel of [its] independent prosecutorial authority" and the independence of the prosecutor cannot be assured if the "adjudicatory branch" can set policy for employees of the prosecutor. Id at 20.
The plain language of § 3(d) provides that the GC "shall exercise general supervision over all attorneys employed by the Board (other than [administrative law judges] and legal assistants to the Board members) and over the . . . employees in the regional offices." Section 3(d) also provides that the GC shall have "final authority" over the investigation of charges and issuance of ULP complaints. As the RD noted, there is no specific reference in § 3(d) to how labor relations should be organized within the Agency and nothing in § 3(d) prevents the GC and Board from performing labor relations functions together. Further, nothing in the Statute specifies how § 3(d), or a similar statutory provision, affects the appropriateness of bargaining units. In circumstances where there is no specific indication as to how Congress intended to integrate the authority contained in a separate statute with the labor relations responsibilities set out in the Statute, the Authority follows basic rules of statutory construction and attempts to interpret both statutes so that they do not conflict. See National Guard, 55 FLRA at 661.
As noted above, § 7112(d) of the Statute permits unions to seek consolidation of existing bargaining units in order to facilitate the creation of more comprehensive units, as long as the resulting consolidated unit is appropriate. Nothing in the Statute except the Agency from [ v62 p32 ] this provision. Further, while not considered by the RD, we note that § 7112(c) of the Statute specifically provides that employees administering laws "relating to labor-management relations" may not be represented by a union which "represents other individuals to whom such provision applies." As explained in the legislative history, this section is "intended to prevent conflicts of interest and apparent conflicts of interest . . . . For example, an employee of the National Labor Relations Board could not, under this provision, be represented by a labor organization which is subject to the National Labor Relations Act." 124 Cong. Rec. H9634 (daily ed. Sept. 13, 1978) (Statement of Congressman Udall). Congress thus specifically considered conflict of interest issues concerning Agency employees and added specific limitations to the Statute to address those issues. However, as noted, Congress included no limitations concerning the appropriateness of prosecutorial and adjudicative employees of the Agency being included in the same bargaining unit. The failure of Congress to include such a limitation, coupled with legislative history and statutory wording indicating that other bargaining issues for such employees were considered and resolved, indicates that there is no impediment to a bargaining unit that includes both prosecutorial and adjudicative employees.
The Agency argues that an interpretation of § 7112(d) that permits employees of the two components to be in the same bargaining units conflicts with the complete separation of the components required by § 3(d). However, the authority relied on by the Agency in support of its "complete separation" theory does not provide any support for the proposition that there is such a conflict. Application at 11 (quoting Davis at 258). Rather, that authority explains that the separation of prosecutorial and adjudicative functions is a basic feature of many administrative agencies, and that this issue is addressed either through the general provisions of the Administrative Procedure Act, 5 U.S.C. § 554(d), or through agency specific provisions. Davis, §§ 13.01; 13.04. Nothing in Davis indicates that this issue raises any problems associated with the conduct of labor relations. Further, Davis reveals that the issue of the separation of prosecutorial and adjudicative functions is common to many agencies, and is not unique to the Agency. Thus, the authority relied on by the Agency does not support its claim that § 3(d) creates particular concerns that render inappropriate the consolidation of Board and GC employees.
Further, the Agency has not challenged the RD's conclusion that the separation of prosecutorial and adjudicatory functions mandated by § 3(d) already is enforced by rules that are unrelated to the bargaining unit status of the Agency's employees. In particular, the Agency does not dispute the RD's finding that the Agency carries out its mandate of prosecutorial independence by preventing ex parte communications between prosecuting attorneys and decision writers. The Agency also does not dispute that these standards currently apply to certain employees in the same bargaining unit and that "no evidence has been presented to suggest any of those practices would be disturbed by the consolidation of bargaining units." Decision at 16. Thus, it is clear that the Agency can continue to maintain and enforce rules that protect the separation of prosecutorial and adjudicative functions if the employees are consolidated in the same bargaining unit.
In addition, the uncontested findings of the RD indicate that the Agency in fact does not separate Board and GC employees in critical respects. Rather, operating within the requirements of § 3(d) , the Agency has engaged in centralization of both personnel authority and labor relations. It has also treated its budget for personnel as a central fund, assuring the Union as recently as FY2006 that it had the flexibility to shift funds from one component's budget to another as needed. Additionally, hiring for the support staff positions at issue in the application is done centrally for the Board, GC headquarters, and the regional offices. Training and orientation are conducted together for GC and Board staff, a wide range of working conditions are identical for all employees, and employees have the opportunity for details and transfer between components. Further, as noted above, the RD found that one office at the Agency coordinates labor relations for both components, that bargaining has long been conducted jointly, and that the contracts for Board and GC support units at issue here are "virtually identical." Decision at 14. This longstanding and current practice of the Agency reflects that § 3(d) does not require that CG and Board employees be separated for purposes of working conditions or labor relations.
In asserting that consolidation is inconsistent with § 3(d), the Agency focuses on the separate supervisory authority of the GC and Board, arguing that consolidation will prevent it from setting different conditions of employment for the two components. The Agency does not, however, contest the RD's findings that policy issues concerning working conditions are jointly agreed to by the GC and the Board "the vast majority of the time," that collective bargaining for the GC and Board units has been conducted jointly for more than 25 years, and that the bargaining has resulted in "virtually identical contracts" for the two headquarters bargaining units. [ v62 p33 ] Decision at 13, 14. Rather, it points to several instances where the Board and GC have insisted on different conditions of employment, one of which, the method of EEO investigations, relates to the bargaining units at issue in this case. See Application at 15-17. However, the Agency's argument that consolidation of its bargaining units would mean that the GC and Board "must agree on joint policy, as one voice," when they bargain is contradicted by the testimony of the Agency's Deputy GC at the hearing below. Application at 23 (emphasis in original). As the Union points out, at the hearing the Agency's Deputy GC testified that consolidation would not prevent the Board and GC from proposing different working conditions for different groups of employees. Opposition at 20 (citing Tr. at 124). As the Deputy GC further explained:
[T]he situation that I'm talking about is where that's not management's proposal. The situation I'm talking about [is] where . . . the Board says to the General Counsel, this is the way it's going to be and it's going to be this way for the entire bargaining unit and the General Counsel says, no it isn't, it's going to be this way for the entire bargaining unit. That's the problem.
Tr. at 126.
Thus, the Agency's concern is not that the Union could force the Board and GC to agree on identical personnel policies, but that the Board or GC might refuse to acknowledge each other's separate supervisory authority under § 3(d). The Agency provides no reason to conclude that either the Board or the GC is likely to ignore the limitations of § 3(d) and attempt to control the working conditions of employees of the other component. Rather, the Agency describes a "tradition of cooperation and comity[,]" where there is a "safety valve" that each component is free to take a different position concerning the working conditions of employees under its supervision. Application at 10. Under consolidated bargaining, the Agency would continue to bargain with the Board and GC employees at the same bargaining table, as it has for the last 25 years. To the extent that the Board and GC have bargained with the Union for different conditions of employment for the two components in the past, the Board and the GC can bargain that these different conditions of employment be included in a new, single agreement. The Agency has provided no reason to conclude that consolidated bargaining will necessarily undermine the separate supervisory authority that the two components exercise under § 3(d).
In sum, the Agency has not established that the RD erred in concluding that § 3(d) does not preclude the consolidation of Agency bargaining units requested by the Union.
B. The RD did not fail to apply established law.
The Authority's regulations provide that an application for review may be granted where an RD has "[f]ailed to apply established law." 5 C.F.R. § 2422.31(c)(3)(i). The Agency asserts that the RD's decision is inconsistent with the Authority's decisions in National Guard and IRS.
In National Guard, the petitioning union sought to consolidate bargaining units of National Guard technicians in 39 states. Technicians are a "hybrid class" of employees who work in a military environment under the immediate control of state officers, but must also maintain military status in the federal National Guard. 55 at 657. The Authority concluded that it was proper to take into account the statutory role of state officials in supervising technicians in assessing the propriety of consolidation and found a consolidated unit to be inappropriate. Id. at 661.
The Agency argues that same basic principle stated in National Guard, that consolidation should not result in "authority over labor relations be[ing] separated from authority to control employees' conditions of employment," applies in this case. Application at 28-29. However, the Agency's situation is not analogous to that presented in National Guard. In that case, the union was seeking a consolidated federal agency bargaining unit that would have bypassed the state authority over the technicians. Here, the supervisory authority is vested in two components of the same federal Agency that would both participate in the consolidated unit. Thus, there is no separation between the two components' authority over bargaining and over the authority for working conditions -- both components would participate in bargaining and in setting working conditions. For this reason, consolidation here does not involve the same issues as those in National Guard.
The Agency also asserts that the RD misapplied IRS, relying on what "exists in reality," rather than the statutory lines of authority. Application at 29 (quoting Decision at 16). In IRS, the Authority rejected the union's request to consolidate a bargaining unit of employees of the Legal Division of the Department of Treasury with a unit that included all employees of the IRS. As relevant here, the Authority concluded that statutory and regulatory delegations of authority over personnel and labor relations matters are always relevant [ v62 p34 ] to appropriate unit determinations, but that these provisions are "not examined in isolation." 56 at 491. Rather, such delegations are simply one factor to be considered in assessing the criteria concerning the appropriateness of a bargaining unit.
Contrary to the Agency's argument, the RD applied the holding of IRS, stating that he would "consider the impact of the Taft-Hartley Act and the Agency's delegations of authority as they apply to the disputed appropriate unit question[.]" Decision at 16. The RD's reference to "what exists in reality" does not indicate that the RD ignored the delegations of authority. In fact, as the above quotation indicates, the RD expressly acknowledged this authority. Moreover, the "reality" identified by the RD is supported by the record. In this regard, as explained above at pages 13-14, the Agency does not separate Board and GC employees in important respects, the Agency has engaged in joint bargaining for the last 25 years, and the lack of separation of the components on bargaining issues continues to the present. These facts support the conclusion that the consolidated bargaining unit is not precluded by § 3(d). The RD's decision in this regard is thus fully consistent with the approach taken by the Authority in IRS.
Accordingly, the Agency has not established that the RD failed to apply established law.
C. The RD did not commit clear and prejudicial factual errors.
Under § 7112(a) of the Statute, a unit will be determined to be appropriate if it will: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with the agency involved; and (3) promote efficiency of the operations of the agency involved. The Authority has identified a number of factors that generally indicate whether these statutory criteria are met, see generally, United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 960-61 (1997) (FISC), and has consistently applied certain of these factors in consolidation cases. See AFMC, 55 FLRA at 361-62; United States Dep't of Justice, 17 FLRA 58, 62 (1985); AAFES, 5 FLRA at 660; Dep't of Transportation, 5 FLRA 646, 652 (1981). In order for a unit to be considered appropriate, all three criteria must be met. The Statute does not require that the proposed unit be the only appropriate unit or the most appropriate unit. AFGE, Local 2004, 47 FLRA 969, 972-73 (1993).
The Agency argues that, in finding the consolidated bargaining unit to be appropriate, the RD committed "clear and prejudicial error[s]" on "substantial" factual matters with respect to each of the three statutory criteria. Application at 30 (quoting 5 C.F.R. § 2422.31(c)(3)(iii)).
1. Community of Interest
As the Authority has explained, "[t]he fundamental premise of the first criterion -- that employees share a clear and identifiable community of interest -- is to ensure that it is `possible for them to deal collectively [with management] as a single group.'" FISC, 52 FLRA at 960 (quoting Dep't of Transportation, Fed. Aviation Admin., Southwest Region, Tulsa Airway Facilities Sector, 3 FLRC 235, 239 (1975)). The Authority examines such factors as whether the employees in the proposed unit are a part of the same organizational component of the agency; support the same mission; are subject to the same chain of command; have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same personnel office. Id. at 960-61. In addition, factors such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation may be relevant. Id.
The RD concluded that employees of the Board and GC shared a community of interest. The Agency objects to four of the RD's factual findings that led to this conclusion.
First, the Agency objects to the RD's finding that the Agency's structure is "somewhat [bifurcated], in that some employees work for the Board, others for the GC, but still others in divisions which report to both the GC and the Board." Decision at 18. The Agency asserts that "there is no support in the record [indicating] that bargaining unit employees are in a reporting relationship other than to ... either the Board or the GC." Application at 30 (emphasis in original). While the Agency may be correct in this assertion, the RD's finding related to the reporting relationship of the divisions, not of bargaining unit employees. As the Agency concedes in its application, "the heads of certain offices, such as the Director of the Division of Administration, have a joint reporting relationship to the Board and General Counsel for certain purposes." Application at 30. [ v62 p35 ] Thus, the Agency has not established that the RD's factual finding is clearly erroneous. [n8]
Second, the Agency objects to the RD's finding that:
Although under the Taft Hartley amendments, the GC has ultimate authority over most attorneys of the Agency, the separation is not as clear-cut for GC employees in the field. In particular, when GC employees, including attorneys, work on [representation] cases, they do so on behalf of the Board. This undercuts the supposed exclusivity GC and Board functions.
Decision at 18. The Agency's objection to this finding is that the authority of GC supervisors over field employees is "clear cut" and that the RD has confused supervisory authority with programmatic delegations. Application at 31. However, as with the first finding, the RD did not find that the Board had supervisory authority over field employees. He found that these employees are acting on behalf of the Board. This finding is fully consistent with the programmatic delegation that the Agency concedes exists. Thus, the Agency has not established that this factual finding is clearly erroneous.
Third, the Agency objects to the RD's finding that "general responsibility for the administration of the [Agency] is found [at] headquarters, particularly the Division of Administration, and headquarters staff is responsible for budgetary policy and labor relations policies and procedures." Decision at 18. The Agency objects that this finding incorrectly states that staff is responsible for policy matters, when policy is made by the Senior Executive Service employees. However, this finding was made in the context of the RD's discussion of the relationship of the field operations to headquarters, not the relationship of the staff and senior managers of the Agency at headquarters. To the extent that the RD failed to note that the staff at issue report to various senior level officials who have policy making responsibility, that fact does not relate to the relationship of the field operations to headquarters and its omission was therefore not prejudicial to the Agency.
The Agency further objects that the operational level of labor and employee relations is not "as centralized as indicated in this finding." Application at 33. According to the Agency, the GC's Division of Operations takes a role in labor relations policy, in addition to the Division of Administration. However, the RD's finding did not state that this responsibility was centralized in the Division of Administration, but only that it was found "at headquarters, particularly" in that division. Decision at 18. The RD's finding does not indicated that other headquarters offices do not have a role in labor relations. Thus, the Agency has not established that this factual finding is clearly erroneous.
Fourth, the Agency objects to the RD's finding that, "employees in the proposed unit, whether they work for the GC or [the] Board, share the same overall mission, to administer the NLRA[.]" Decision at 18. The Agency argues that this finding uses an over-broad use of the term "mission" that fails to recognize the separate and independent prosecutorial role of the GC. Application at 35. However, the Authority has held that that "the separate missions of each component need only `bear a relationship' to one another, and the functions need only be `similar or supportive' to warrant consolidation." AFMC, , 55 FLRA at 362 (quoting Dep't of the Navy, United States Marine Corps. 8 FLRA 15, 22 (1982)). Applying this precedent, the fact that the Board and GC have separate statutory functions does not establish that the functions bear an insufficient relationship to support a finding of community of interest. Thus, the Agency has not established that this factual finding is clearly erroneous.
2. Effective Dealings
The criterion of effective dealings pertains to the relationship between management and the exclusive representative selected by unit employees in an appropriate bargaining unit. FISC, 52 FLRA at 961. In assessing this requirement, the Authority examines such factors as: the past collective bargaining experience of the parties; the locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit; the limitations, if any, on the negotiation of matters of critical concern to employees in the proposed unit; and the level at which labor relations policy is set in the agency. Id. [ v62 p36 ]
The Agency objects to the following finding of the RD:
A unit of all nonprofessional employees of the Agency and all professional employees of the GC in the field would promote effective dealings because the authority to set conditions of employment rests with the Board and the GC, and because personnel and labor-management relations support on broad policy matters is provided by the Division of Administration, Human Resources Office.
Decision at 20. The Agency claims that the RD's finding ignores the Board and GC's separate authority to set policy and that it ignores the fact that the GC provides labor relations support for field activities that is separate from the Division of Administration. However, nothing in the RD's finding implies that Board and the GC do not retain their separate authority to set policy with respect to the employees that each component supervises. As is explained above, to the extent the two components desire separate policies or conditions of employment, they are free to propose such policies in bargaining. With respect to the GC's support for labor relations in the field, the RD acknowledged the separate role of the GC's Counsel for Labor and Employee Relations, and his finding that "support on broad policy matters is provided by the Division of Administration" is not inconsistent with the separate role of the GC's Counsel. Decision at 20. The Agency has therefore not established that the RD's factual finding was clearly erroneous.
The Agency also argues that the application of the effective dealings criterion should include some basis for concluding that the criterion "will not be diminished by consolidation." Application at 37 (emphasis in original). The Authority has, however, consistently held that Section 7112(d) requires consolidation whenever a consolidated unit is appropriate, and that the law does not require any showing concerning the relative merits of the consolidated and unconsolidated units. See AFMC, 55 FLRA at 364. The test proposed by the Agency is inconsistent with this precedent and we deny the Agency's request that we adopt it.
3. Efficiency of Agency Operations
The criterion of efficiency of agency operations concerns the "benefits to be derived from a unit structure which bears some rational relationship to the operational and organizational structure of the agency." FISC, 52 FLRA at 961. Factors to be examined in assessing efficiency of agency operations pertain to the effect of the proposed unit on agency operations in terms of cost, productivity, and use of resources. Id. at 962.
The Agency objects to the following finding of the RD:
In many respects, the division between the Board and GC components as applied to labor relations is on paper only. This is particularly evidenced by the similarity of the existing collective bargaining agreements which are bargained simultaneously as well as other uniform policies. Consolidation should obviate the likelihood of having to bargain the same issue multiple times for multiple units, though the evidence shows that has been rarely the case at the NLRB.
Decision at 21. The Agency argues that this conclusion ignores evidence of separate supervisory and policy-making authority and testimony that joint bargaining has not been efficient. However, the RD did not ignore the evidence of separate authority. Rather, he found that this division was "[i]n many respects . . . on paper only." Id. The Agency does not dispute the similarity that the RD relied on to reach this conclusion. Further, the testimony relied on by the Agency indicates that one source of "inefficiency" in joint bargaining has been the number of bargaining representatives, a problem that will lessened by consolidation. Application at 38. As such, Agency has not established that the RD's factual finding was clearly erroneous.
In sum, the Agency has not established that the RD committed any clear and prejudicial errors concerning substantial factual matters.
On review of the application, the Agency has not established that the RD's Decision and Order is deficient on the grounds alleged.
Footnote # 1 for 62 FLRA No. 9 - Authority's Decision
Section 7112(b)(5) provides that a bargaining unit will not be determined to be appropriate if it includes "both professional employees and other employees, unless a majority of the professional employees vote for inclusion in the unit[.]"
Footnote # 2 for 62 FLRA No. 9 - Authority's Decision
[t]he General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than administrative law judges and legal assistants to the Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of [ULP] complaints . . . and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.
The Board has also issued a series of delegations of authority clarifying that the GC has the general authority to take all personnel actions relating to attorneys of the Agency who do not work directly for Board members. Decision at 6.
Footnote # 3 for 62 FLRA No. 9 - Authority's Decision
Footnote # 4 for 62 FLRA No. 9 - Authority's Decision
Section 7112(d) provides, in pertinent part, that, "[t]wo or more units which are in an agency and for which a labor organization is the exclusive representative may, upon petition by the agency or labor organization, be consolidated with or without an election into a single larger unit if the Authority considers the larger unit to be appropriate."
Footnote # 5 for 62 FLRA No. 9 - Authority's Decision
In its application for review, the Agency seeks review only of the consolidation of the Washington DC Board employees with GC employees. Application at 3. This memo will therefore not discuss the appropriateness of the consolidation of the Washington DC GC employees with the regional office GC employees.
Footnote # 6 for 62 FLRA No. 9 - Authority's Decision
Section 7112(a) provides, in pertinent part, that "[t]he Authority shall determine . . . any unit to be an appropriate unit 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."
Footnote # 7 for 62 FLRA No. 9 - Authority's Decision
As the Authority granted review concerning the effect of § 3(d) as a matter for which there is an absence of precedent, it is not necessary to consider the Agency's alternative argument that "[e]stablished law or policy warrants reconsideration." 5 C.F.R. § 2422.31(c)(2). The Authority's finding that there is an absence of precedent on this issue indicates that the Authority has no "established law" concerning the effect of § 3(d). As the grant of review does not dispose of the other issues raised by the Agency, we address them below.
Footnote # 8 for 62 FLRA No. 9 - Authority's Decision