Department of Health, Education and Welfare, Social Security Administration, SSA Cincinnati, Ohio and SSA Covington, Kentucky 

 1 FLRA No. 51
                                            JUNE 11, 1979
 
 MR. CHARLES G. SMITH, JR.
 PRESIDENT, LOCAL 75
 NATIONAL FEDERATION
 OF FEDERAL EMPLOYEES
 P. O. BOX 1901
 CINCINNATI, OHIO 45201
 
                             RE:  DEPARTMENT OF HEALTH, EDUCATION 
                                  AND WELFARE, SOCIAL SECURITY 
                                  ADMINISTRATION, SSA CINCINNATI, 
                                  OHIO AND SSA COVINGTON, KENTUCKY, 
                                  Assistant Secretary Case No. 
                                  53-10663(UC), Case No. 0-AS-4
 
 DEAR MR. SMITH:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO,
 IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 75 (THE
 UNION) FILED A PETITION SEEKING TO CONSOLIDATE TWO UNITS OF
 NONPROFESSIONAL EMPLOYEES WITHIN SEPARATE REGIONS OF THE SOCIAL SECURITY
 ADMINISTRATION (SSA) FOR WHICH THE UNION HAD BEEN CERTIFIED AS THE
 EXCLUSIVE REPRESENTATIVE.  SSA OPPOSED THE PROPOSED CONSOLIDATED UNIT ON
 THE BASIS THAT IT WAS NOT APPROPRIATE UNDER THE CRITERIA SET FORTH IN
 SECTION 10(B) OF THE ORDER.
 
    THE REGIONAL ADMINISTRATOR (RA) FOUND THAT "THE PETITION FOR
 CONSOLIDATED UNIT DOES NOT MEET THE CRITERIA SET FORTH IN (S)ECTION
 10(B) OF THE ORDER AND IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
 RECOGNITION." IN SO FINDING, THE RA STATED:
 
    (T)HE PETITION FOR CONSOLIDATED UNIT WHICH ENCOMPASSES THE
 CONSOLIDATION OF TWO UNITS IN
 
    SEPARATE REGIONS OF THE SOCIAL SECURITY ADMINISTRATION IS NOT
 APPROPRIATE FOR THE PURPOSE OF
 
    EXCLUSIVE RECOGNITION BECAUSE IT MEETS NONE OF THE CRITERIA
 ESTABLISHED IN (S)ECTION 10(B) OF
 
    THE EXECUTIVE ORDER.  MY REASONING IS BASED ON CONCLUSIONS REACHED
 FROM THE ABOVE-STATED FACTS
 
    WHICH SHOW THAT THE EMPLOYEES WITHIN THE PROPOSED CONSOLIDATED UNIT
 DO NOT SHARE OVERALL
 
    SUPERVISION AT THE FIELD LEVEL AND DO NOT SHARE UNIFORM PERSONNEL
 POLICIES AND LABOR RELATIONS
 
    PRACTICES.  WHILE THEY HAVE ESSENTIALLY SIMILAR JOB CLASSIFICATION,
 THE SAME COULD BE SAID FOR
 
    THE OTHER APPROXIMATELY 40,000 EMPLOYEES THROUGHOUT THE NATION IN THE
 FIELD WHO ARE EMPLOYED
 
    BY THE SOCIAL SECURITY DISTRICT OFFICES.  ACCORDINGLY, I FIND THAT
 THE EMPLOYEES IN THE
 
    PROPOSED CONSOLIDATED UNIT DO NOT SHARE A CLEAR AND IDENTIFIABLE
 COMMUNITY OF INTEREST.
 
    INASMUCH AS THE EMPLOYEES WITHIN THE PROPOSED CONSOLIDATED UNIT ARE
 NOT SERVICED BY THE
 
    SAME PERSONNEL OFFICE AND ARE NOT UNDER THE SUPERVISION OF THE SAME
 REGIONAL COMMISSIONER IN
 
    EACH RESPECTIVE UNIT WHO HAS THE RESPONSIBILITY FOR PROVIDING
 REGIONAL LEADERSHIP AND LINE
 
    SUPERVISION FOR PLANNING, ORGANIZING, AND DIRECTING DISTRICT, BRANCH,
 AND TELESERVICE
 
    OPERATIONS IN THEIR RESPECTIVE REGIONS, I FIND THAT THE PROPOSED
 CONSOLIDATED UNIT WILL NOT
 
    PROMOTE EFFECTIVE DEALINGS.  FURTHER, I FIND THAT SINCE EACH
 RESPECTIVE REGIONAL COMMISSIONER
 
    COORDINATES THE OPERATIONS OF COMPONENTS WITHIN EACH OF THE
 RESPECTIVE UNITS SOUGHT TO BE
 
    CONSOLIDATED AND PROVIDES REGIONAL LEADERSHIP AND LINE DIRECTION FOR
 THESE RESPECTIVE UNITS
 
    BUT NEITHER REGIONAL COMMISSIONER WOULD HAVE THE SAME AUTHORITY OVER
 THE PROPOSED CONSOLIDATED
 
    UNIT, I FIND THE PROPOSED CONSOLIDATED UNIT WILL NOT PROMOTE THE
 EFFICIENCY OF THE AGENCY'S
 
    OPERATIONS.
 
    ACCORDINGLY, THE RA DISMISSED THE UNION'S PETITION.  THE ASSISTANT
 SECRETARY, IN AGREEMENT WITH THE RA AND BASED ON HIS REASONING, FOUND
 THAT DISMISSAL OF THE PETITION WAS WARRANTED AND THEREFORE DENIED THE
 UNION'S REQUEST FOR REVIEW SEEKING REVERSAL OF THE RA'S DISMISSAL OF THE
 PETITION.
 
    IN THE UNION'S PETITION FOR REVIEW, IT IS ALLEGED THAT THE ASSISTANT
 SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN THAT THE PROPOSED
 CONSOLIDATED UNIT DOES MEET THE SECTION 10(B) CRITERIA AND IS THEREFORE
 APPROPRIATE, PARTICULARLY SINCE THE COUNCIL'S 1975 REPORT AND
 RECOMMENDATIONS AND APPLICABLE CASE LAW CREATE A PRESUMPTION IN FAVOR OF
 CONSOLIDATING ANY TWO APPROPRIATE UNITS INTO A LARGER UNIT.  FURTHER, IT
 IS ALLEGED THAT THE DECISION OF THE ASSISTANT SECRETARY RAISES ISSUES OF
 MAJOR POLICY, NAMELY:
 
    "(O)F WHAT IMPORTANCE IS THE NUMERIC SIZE OF A PROPOSED CONSOLIDATED
 UNIT IN THE
 
    DETERMINATION OF A UNIT'S APPROPRIATENESS AND DOES THE PRESUMPTION
 FAVORING CONSOLIDATION
 
    EXIST WHEN UNITS ARE IN DIFFERENT AGENCY REGIONS(?)"
 
    IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW OF THE ASSISTANT
 SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2400.2 OF
 THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES.  THAT IS, THE DECISION OF THE ASSISTANT
 SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS OR PRESENT A MAJOR
 POLICY ISSUE.
 
    AS TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION IS
 ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE ASSISTANT
 SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS
 DECISION THAT THE PROPOSED CONSOLIDATED UNIT FAILS TO MEET THE CRITERIA
 OF SECTION 10(B) OF THE ORDER AND IS NOT APPROPRIATE FOR THE PURPOSE OF
 EXCLUSIVE RECOGNITION, BUT INSTEAD CONSTITUTES ESSENTIALLY MERE
 DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDINGS IN THIS REGARD.
 MOREOVER, THE APPEAL FAILS TO CONTAIN ANY BASIS TO SUPPORT THE
 CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION IS INCONSISTENT WITH
 APPLICABLE PRECEDENT OR THE PURPOSES AND POLICIES OF THE ORDER AND
 THEREFORE PROVIDES NO BASIS FOR REVIEW, NOTING IN THIS REGARD THE
 ASSISTANT SECRETARY'S FINDING THAT THE PROPOSED CONSOLIDATED UNIT HEREIN
 SATISFIES NONE OF THE SECTION 10(B) CRITERIA.  SIMILARLY, IN THE
 AUTHORITY'S OPINION, NO MAJOR POLICY ISSUES ARE PRESENTED WARRANTING
 REVIEW, AS ALLEGED, CONCERNING THE SIZE OF A PROPOSED CONSOLIDATED UNIT
 OR THE PRESUMPTION FAVORING CONSOLIDATION.  RATHER, THE CONTENTIONS IN
 THIS REGARD ONCE AGAIN CONSTITUTE ESSENTIALLY MERE DISAGREEMENT WITH THE
 ASSISTANT SECRETARY'S FINDING THAT THE PROPOSED CONSOLIDATED UNIT DOES
 NOT MEET THE CRITERIA SET FORTH IN SECTION 10(B) OF THE ORDER AND IS
 THEREFORE NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
 ACCORDINGLY, NO BASIS FOR REVIEW IS THEREBY PRESENTED.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES, THE APPEAL FAILS TO
 MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
 AUTHORITY'S RULES AND REGULATIONS WHICH INCORPORATES BY REFERENCE
 SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE.  ACCORDINGLY, THE
 PETITION FOR REVIEW IS HEREBY DENIED.  /1/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  I. BECKER
 
    SSA
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.