United States Department of Health and Human Services, National Institutes of Health, National Institute of Environmental Health Sciences, Research Triangle Park, North Carolina (Agency) and American Federation of Government Employees, Local 2923, AFL-CIO (Petitioner)

[ v62 p84 ]

62 FLRA No. 23

UNITED STATES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
NATIONAL INSTITUTES OF HEALTH
NATIONAL INSTITUTE OF
ENVIRONMENTAL HEALTH SCIENCES
RESEARCH TRIANGLE PARK, NORTH CAROLINA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2923, AFL-CIO
(Petitioner)

WA-RP-04-0048

______

DECISION AND ORDER ON REVIEW

May 17, 2007

______

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members

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 Petitioner under § 2422.31 of the Authority's Regulations. [n1]  The Agency filed an opposition to the Petitioner's application.

      Following a reorganization, the Petitioner sought to represent a stand alone unit of 11 employees in the newly formed Division of Extramural Activities Support (DEAS). The RD found that the employees did not constitute an appropriate bargaining unit and dismissed the petition. In an order issued following the filing of the application for review, the Authority granted the application for review and deferred action on the merits of the application. For the following reasons, we conclude that the Petitioner has not established that the RD erred in refusing to certify the bargaining unit the Petitioner sought.

II.     Background and RD's Decision

A.     Background

      The Agency reorganized its grant support staff into the newly formed DEAS. The DEAS provides administrative support to scientists and managers who conduct "extramural" research support activities. RD's Decision at 3. All the approximately 635 DEAS employees are located in Maryland, except for 11 employees located in North Carolina. Prior to the reorganization, those 11 employees had been represented by the Petitioner as part of a larger bargaining unit encompassing all nonprofessional employees of the National Institute of Environmental Health Services in Research Triangle Park, North Carolina. The DEAS employees in Maryland are not included in any bargaining unit. The Petitioner seeks to represent a new bargaining unit composed of the 11 DEAS employees in North Carolina.

      The DEAS employees perform administrative support functions, such as monitoring and managing database systems, arranging meetings, processing grant applications and proposals, and preparing and processing documentation. At the time of the hearing, the 11 DEAS employees in North Carolina included Grants Clerks, Extramural Support Assistants and a Lead Extramural Support Assistant (Task Leader). See RD's Decision at 5.

B.     RD's Decision

      In addressing the Petitioner's claim that DEAS is a successor employer of the 11 employees in North Carolina as a separate bargaining unit, the RD applied the criteria set forth in Naval Facilities Eng'g Serv. Ctr., Port Hueneme, Cal., 50 FLRA 363, 368 (1995) [ v62 p85 ] (Port Hueneme). [n2]  The RD determined that the first Port Hueneme criterion was not met because the petitioned-for unit does not constitute a separate appropriate unit under § 7112(a) of the Federal Service Labor-Management Relations Statute (Statute). [n3] 

      The RD determined that DEAS has its own mission, budget, chain of command and operating policies and procedures. Moreover, the RD found that all DEAS employees, including the 11 employees working in North Carolina, are part of a centralized and integrated organization with a new, unified mission. Additionally, the RD stated that all DEAS employees have similar or related skills and duties, similar job titles and work assignments, are subject to the same general working conditions, share the same chain of command, and are governed by the same personnel and labor relations policies that are centrally established and managed. See RD's Decision at 8.

      The RD noted that the DEAS employees in North Carolina are geographically separated from the other DEAS employees and do not experience significant interchange with those DEAS employees. Nevertheless, the RD determined that DEAS is a centralized and integrated operation. In this connection, the RD found that all the DEAS employees use the same work processes and procedures, work under centralized administration and management, share a unified mission, and share similar skills, positions, assignments and working conditions. In addition, the RD found that the DEAS employees working in North Carolina do not have significant employment issues or personnel concerns that are unique or different from the other DEAS unit-eligible employees. In sum, the RD determined that the DEAS employees in North Carolina do not share a community of interest that is separate and distinct from the community of interest they share with other DEAS employees. Accordingly, the RD concluded that the petitioned-for unit does not satisfy the community of interest requirement under § 7112(a) of the Statute. See RD's Decision at 8 (citing United States Dep't of the Navy, Fleet & Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 964-66 (1997) (FISC)).

      Moreover, the RD found that the proposed unit of DEAS employees in North Carolina would not promote effective dealings and efficient operations, as required by § 7112(a) of the Statute. In this regard, the RD found that the authority and responsibility for labor relations and personnel policies do not reside in North Carolina, but in Maryland. In addition, according to the RD, the proposed unit would require the Agency to negotiate separate conditions of employment for 11 out of over 500 employees, which would not support effective dealings. The RD also determined that a unit limited to the employees in North Carolina would result in the artificial and unwarranted fragmentation of the integrated DEAS organizational and operational structure, thereby failing to promote the efficiency of the Agency's operations.

      For these reasons, the RD determined that the petitioned-for unit was not an appropriate unit under § 7112(a) of the Statute, and thus, the petitioned-for unit did not satisfy the standards for successorship under Port Hueneme. The RD dismissed the Union's petition. See RD's Decision at 9.

III.     Positions of the Parties

A.     Petitioner's Application for Review

      The Petitioner contends that the RD erred as a matter of law in finding that the 11 DEAS employees did not constitute an appropriate unit because, according to the Petitioner, the only change in conditions of employment for the employees in North Carolina that occurred after the creation of DEAS is a change in the chain of command. In this connection, the Petitioner asserts that the Authority has held that a change in a chain of command will not, by itself, render an existing unit inappropriate. Application at 2 (citing United States Dep't of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328, 332-34 (2000) (Naval Base, Norfolk)).

      According to the Petitioner, the DEAS employees in North Carolina continue to deal with a centralized labor relations and personnel policy function and no change has transpired in this regard. The Petitioner [ v62 p86 ] argues that these continued relationships and clear authority maintain efficiency for the Agency. In addition, according to the Petitioner, the DEAS supervisor onsite in North Carolina has some autonomy in the administration of personnel policies and the authority to make decisions regarding discipline and awards.

      Further, the Petitioner maintains that the DEAS employees in North Carolina have a historical pattern of recognition, as their functions are similar to the functions of other clerical and administrative employees in North Carolina, whom the Petitioner represents. The Petitioner also claims that the separation of the DEAS employees in North Carolina from the other DEAS employees in Maryland, nearly 500 miles away, and the continued interaction of the DEAS employees in North Carolina with other Agency employees there, demonstrate that the DEAS employees in North Carolina should continue to be represented by the Petitioner.

      The Petitioner argues that the RD made prejudicial factual errors in concluding that the DEAS employees in North Carolina are integrated with other DEAS employees in Maryland. According to the Petitioner, the DEAS employees in North Carolina are "fully integrated functionally and physically" with other Agency employees in North Carolina. Application at 3. Moreover, the Petitioner asserts that there are various distinctive local policies and work conditions that apply to the Agency staff and the DEAS employees in North Carolina. The Petitioner contends that the Authority found that, in a similar situation, petitioned-for employees did not have a separate community of interest from other local employees due to their functional and physical integration. In this regard, the Petitioner cites Dep't of the Interior, Nat'l Park Serv., Lake Mead Nat'l Recreation Area, Boulder City, Nev., 57 FLRA 582, 584 (2001).

      In addition, the Petitioner relies on several Authority decisions in which separate, appropriate units were found to exist where employees were located at remote locations, had little interchange with other agency employees, had unique conditions of employment, and had separate chains of command and local autonomy in administration of personnel policies. See, e.g., DHHS, Navajo Area Indian Health Serv., Shiprock Service Unit, Shiprock, N.M., 49 FLRA 1375, 1384 (1994) (Navajo Area); Dep't of Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Ill., 48 FLRA 620, 633 (1993); United States Geological Survey, Water Res. Div., Southeastern Region, Caribbean District, 46 FLRA 832, 844 (1992); United States Fish & Wildlife Serv., Fin. Ctr., Denver, Colo., 14 FLRA 153, 155 (1984).

      Next, the Petitioner contends that the RD erred by stating that all DEAS employees use the same work procedures and processes. Contrary to the RD's finding, the Petitioner asserts that such processes are essentially unchanged from their pre-DEAS structure. In this regard, the Petitioner asserts that the Agency provides a significant amount of services, property, and other support, such as funds for overtime, travel, and administrative support for the DEAS employees in North Carolina. See Application at 4.

      Further, the Petitioner argues that the RD erred in relying on the fact that all DEAS employees have uniform or generic position descriptions because, according to the Petitioner, the new position descriptions do not accurately reflect the employees' duties. See id. The Petitioner also points out that new DEAS employees attend orientation sessions with other Agency employees in North Carolina, and that all employees in North Carolina continue to be serviced by the same central personnel and labor relations staff in Maryland. In addition, the Petitioner maintains that the petitioned-for bargaining unit is appropriate because the 11 DEAS employees in North Carolina are situated away from the other DEAS employees in Maryland. In this connection, the Petitioner asserts that there is no interchange of employees between the two locations. The Petitioner argues that the 11 DEAS employees have strong contacts with the other Agency employees in North Carolina because they continue to work at the same location, performing essentially the same work, under the same working conditions. Moreover, the Petitioner asserts that the DEAS supervisor in North Carolina has authority to negotiate at the local level if desired; the DEAS employees in North Carolina have their own budget and mission; and the DEAS employees in North Carolina perform the same or similar clerical and administrative duties as other clerical and administrative employees already represented by the Petitioner.

B.     Agency's Opposition

      The Agency asserts that the RD correctly determined that the record did not establish that the DEAS employees working in North Carolina have a separate community of interest. The Agency notes that the Petitioner relies heavily on the geographical location of the group to support its application, but that the RD properly weighed this factor and determined that the unit was not appropriate.

      The Agency also asserts that a unit limited to the employees of only one entity would result in an artificial and unwarranted fragmentation of the integrated DEAS organizational and operational structure, thereby impeding [ v62 p87 ] the efficiency of the Agency's operations. In addition, the Agency argues that the RD properly concluded that the DEAS employees in North Carolina would not constitute an appropriate unit and committed no prejudicial error in evaluating the information presented.

IV.     Analysis and Conclusions

A.     The RD Did Not Fail to Apply Established Law

      Under Port Hueneme, 50 FLRA at 368, the first requirement for finding a new employing entity to be a successor employer is that the transferred employees constitute an appropriate bargaining unit. Port Hueneme, 50 FLRA at 368. To determine appropriateness, the Authority considers whether the unit would: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with the agency; and (3) promote efficiency of the operation of the agency. 5 U.S.C. § 7112(a). See United States Dep't of the Army, Military Traffic Mgmt. Command, Alexandria, Va., 60 FLRA 390, 394 (2004) (Military Traffic Mgmt. Command). A proposed unit must meet all three criteria to be found appropriate. Dep't of the Interior, Nat'l Park Serv., Lake Mead Nat'l Recreation Area, Boulder City, Nev., 57 FLRA 582, 584 (2001) (Interior, Lake Mead). In this regard, the Authority makes appropriate unit determinations on a case-by-case basis. FISC, 52 FLRA at 960. Although the Authority has set out factors for assessing each criterion, it has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. See United States Dep't of the Air Force, Lackland Air Force Base, San Antonio, Tex., 59 FLRA 739, 741 (2004).

      With regard to the first appropriate unit criterion -- whether employees share a clear and identifiable community of interest -- the Authority examines such factors as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation. See FISC, 52 FLRA at 961 (citations omitted). In addition, factors such 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 office. See id. at 960-61. In cases where the reorganization prompting the application for review changed the chain of command, the Authority has held that a change in chain of command will not, by itself, be found to render an existing unit inappropriate. See, e.g., Naval Base, Norfolk, 56 FLRA at 332-34. Instead, chain of command issues are properly considered in addressing each of the three appropriate unit criteria. Id. at 333-34.

      The Petitioner argues that the reorganization at issue here was merely a change in the chain of command that should not, by itself, render the existing unit inappropriate. However, contrary to the Petitioner's contention, the RD determined that the reorganization changed a variety of factors other than the chain of command, including whether the employees in the proposed unit have similar or related duties, job titles and work assignments; are governed by the same personnel office; and have a degree of interchange between other organizational components. See RD's Decision at 8. In particular, the RD determined that, after the reorganization, the DEAS employees in North Carolina were no longer part of the entities where they were located. Instead, they were consolidated with other DEAS employees in Maryland. In this respect, the RD also found that the authority and responsibility for labor relations and personnel policies did not reside in North Carolina but was with Agency officials in Maryland. See RD's Decision at 8. The Petitioner has thus failed to demonstrate that the reorganization at issue was merely a change in the chain of command.

      In response to the Petitioner's additional claim that employees in the petitioned-for unit share a community of interest because they are supervised by a supervisor in North Carolina, the RD found that an onsite supervisor was not hired for the DEAS employees in North Carolina until after the hearing. See RD's Decision at 4; United States Dep't of Agric., Food Safety & Inspection Serv., 61 FLRA 397, 400 (2005) (unit determinations must reflect the conditions of employment at the time of the hearing) (USDA, Food Safety). The RD also found that at the time of the hearing, DEAS employees in North Carolina, including an employee task leader, "were supervised from the NIH [Maryland] campus." Id. at 4. In addition, contrary to the Petitioner's claim that the local supervisor had authority to handle leave and awards for DEAS employees in North Carolina, the record supports the RD's determination that, after the reorganization, leave approval requests were submitted by e-mail to the supervisor in Maryland, and nominations for awards for DEAS employees in North Carolina were submitted to DEAS in Maryland for consideration. See Hearing Transcript (HT) at 262, 333-34, 309.

      With respect to the Petitioner's claim that the RD misapplied the community of interest criterion relating to interchange between the DEAS employees in North Carolina with those in Maryland, although the RD found [ v62 p88 ] that there was not "significant interchange," the decision and the record discloses that two DEAS employees from Maryland have moved to DEAS in North Carolina. See RD's Decision at 8; HT at 148-49, 338. In addition, according to the record, the DEAS supervisor in Maryland travels to North Carolina approximately one week per month, holds staff meetings, and addresses performance and workflow problems. See id. at 280, 289. Further, contrary to the Petitioner's claim that the DEAS employees in North Carolina have a distinct separation from the employees in Maryland, the RD determined and the record supports that the DEAS staff in North Carolina no longer works exclusively for Agency entities in North Carolina. See RD's Decision at 8. In this regard, the RD found that one goal of DEAS is to be flexible, so that work can be moved, physically or electronically, from place to place, depending on staff workload and, according to the record, work has been reassigned from DEAS staff in Maryland to DEAS staff in North Carolina, based on workload. See id; HT at 76-77, 149.

      For the foregoing reasons, we conclude that the Petitioner has not established that the RD failed to apply established law by finding that the petitioned-for unit does not satisfy the community of interest requirement of § 7112(a) of the Statute. See FISC, 52 FLRA at 964-67. Accordingly, we deny the application for review on this ground. [n4] 

B.      The RD Did Not Commit Clear and Prejudicial Errors Concerning a Substantial Factual Matter

      Under § 2422.31(c)(3)(iii) of the Authority's Regulations, the Authority may grant an application for review when the application demonstrates that there is a genuine issue over whether the RD has committed a clear and prejudicial error concerning a substantial factual matter. In this case, the Petitioner alleges that the RD made clear and prejudicial errors concerning four substantial factual matters by concluding that: (1) the North Carolina employees are integrated with the other DEAS employees in Maryland; (2) all DEAS employees use the same work procedures and processes; (3) all DEAS employees have uniform position descriptions; and (4) DEAS employees work under a unified mission.

      First, the Petitioner argues that the RD erred in his findings regarding the degree of interaction between the DEAS employees in North Carolina with those in Maryland. However, contrary to the Petitioner's assertion, record evidence supports the RD's conclusions that there is interaction between the DEAS employees in North Carolina and their DEAS counterparts in Maryland. As discussed above, two DEAS employees from Maryland have moved to DEAS in North Carolina. See HT at 148-49. In addition, as also discussed above, the DEAS supervisor from Maryland travels to North Carolina approximately one week per month. See id. at 280, 289. Moreover, the main supervisory staff for DEAS is located in Maryland, where leave is approved and award recommendations are considered. See RD's Decision at 4; HT at 262, 309, 333-34. Record evidence also supports the RD's conclusion that labor relations and personnel functions are consolidated in Maryland. See id. at 262, 309.

      In addition, the precedent relied on by the Petitioner is distinguishable. In particular, the Petitioner relies on Authority decisions in which appropriate units were found to exist where employees were located at remote locations, such as Navajo Area, 49 FLRA at 1384-85 (independent, self-contained facility had minimal interchange of personnel). Here, although the DEAS employees in North Carolina are located approximately 500 miles away from the other DEAS employees in Maryland, there has been interaction between these employees, as explained above. In addition, unlike the employees in Navajo Area, the DEAS employees in Maryland and North Carolina work under a common personnel function and labor relations staff, and perform common work. Accordingly, the Petitioner has failed to establish that the RD erred in finding interaction between the employees in Maryland and North Carolina.

      The Petitioner's second allegation of factual errors is that the RD erred when he found that all DEAS employees use the same work procedures and processes. See Application at 4. According to the RD, at the time of the hearing, all of the DEAS staff were using a system called "ECARES," which ties all DEAS employees together. See RD's Decision at 5, 8; HT at 228. According to the parties, subsequent to the hearing, that system was abandoned, and employees returned to using the systems previously used. However, the RD's decision is based on the record at the time of the hearing. See, e.g., USDA, Food Safety, 61 FLRA at 400. Accordingly, the Petitioner has not shown that the RD's Decision committed a clear and prejudicial error regarding work procedures and processes.

      Third, the Petitioner asserts that the RD erred in concluding that all DEAS employees have uniform position descriptions. See RD's Decision at 4. Specifically, [ v62 p89 ] the Petitioner claims that the position descriptions do not accurately reflect the employees' duties. See Application at 4. However, even if the Petitioner's allegations were correct, this would not establish that the RD erred in concluding that employee position descriptions were uniform. Moreover, the record supports the RD's conclusion that all DEAS employees' position descriptions were standardized. See HT at 86, 152. As such, the Petitioner has failed to demonstrate that the RD's factual determination is erroneous in this regard.

      Fourth, the Petitioner claims that the RD erred when he found that DEAS employees work under a unified mission. See RD's Decision at 8. Contrary to the Petitioner's contention, the record supports the RD's conclusion that DEAS staff no longer work exclusively for the Agency entity where they are located. Instead, the DEAS staff receive work electronically from other entities as workload demands dictate, and perform a unified mission for entities in both North Carolina and Maryland. See HT at 76-77, 84-85, 149, 281. Based on the record evidence, the Petitioner fails to demonstrate that the RD's factual determination regarding DEAS' unified mission is in error.

      Finally, we note that the situation in this case, where a small group of employees has been separated from their previous on-site bargaining unit and joined to a larger, distant organization, is distinguishable from another recent reorganization case. In particular, in United States Dep't of Veterans Affairs, VA Conn. Healthcare Sys., West Haven, Conn., 61 FLRA 864 (2006) (VA West Haven), two separate VA facilities had been organizationally combined. Both facilities had existing exclusive representatives. The RD in that case found that the existing separate bargaining units continued to be appropriate units, especially considering their long history of collective bargaining. Unlike VA West Haven, however, the DEAS employees in North Carolina have not constituted a separate, exclusive bargaining unit. Instead, this case is more like the situation in United States Dep't of Agric., Office of the Chief Information Officer, Information Tech. Servs., 61 FLRA 879 (2006) where, following a reorganization creating an information technology support service, the Authority found that the employees who transferred to that service were no longer part of their previous service centers and, as a result, were no longer members of any bargaining unit with the service centers. Instead, the Authority found that a nationwide unit of all the information technology support service staff was appropriate.

      Because record evidence supports the RD's findings on these points, we conclude that the Petitioner has not demonstrated that the RD committed clear and prejudicial errors concerning substantial factual matters. See, e.g., Military Traffic Mgmt. Command, 60 FLRA at 393. Accordingly, we deny the application for review on this ground.

V.     Order

      The application for review is denied.



Footnote # 1 for 62 FLRA No. 23 - Authority's Decision

   Section 2422.31(c) of the Authority's Regulations provides:

(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:
(1)      The decision raises an issue for which there is an absence of precedent;
(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;
(ii)      Committed a prejudicial procedural error;
(iii)      Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 2 for 62 FLRA No. 23 - Authority's Decision

   Under Port Hueneme, 50 FLRA at 368, a new employing entity is considered a successor employer where:

1.     &nbs