Office of Personnel Management, Southeast Region, Atlanta, Georgia (Activity) and Association of Civil Service Commission Advisors (Petitioner)

 3 FLRA No. 29
 
 OFFICE OF PERSONNEL MANAGEMENT,
 SOUTHEAST REGION, /1/
 ATLANTA, GEORGIA
 Activity
 
 and
 
 ASSOCIATION OF CIVIL SERVICE
 COMMISSION ADVISORS
 Petitioner
 
                                            Assistant Secretary
                                            Case No. 40-9000(RO)
 
                            DECISION AND ORDER
 
    UPON A PETITION DULY FILED UNDER SEC. 6 OF EXECUTIVE ORDER 11491, AS
 AMENDED, AN INITIAL HEARING ON THIS MATTER WAS HELD BEFORE HEARING
 OFFICER ROBERT WOODLAND, JR.  THE HEARING OFFICER'S RULINGS MADE AT THE
 HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.  /2/
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SEC.  304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (45 F.R. 3482, JANUARY 17, 1980).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SEC.
 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92
 STAT. 1215).
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILLED BY THE
 ACTIVITY AND THE PETITIONER, ASSOCIATION OF CIVIL SERVICE COMMISSION
 ADVISORS, AND BRIEFS FILED SUBSEQUENT TO THE SUPPLEMENTAL HEARING
 FOLLOWING THE AUTHORITY'S DECISION AND REMAND /3/ THE AUTHORITY FINDS:
 
    1.  THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
 EMPLOYEES OF THE ACTIVITY.
 
    2.  THE PETITIONER SEEKS AN ELECTION IN A UNIT LIMITED TO THOSE
 NONPROFESSIONAL EMPLOYEES, EXCEPT CLERICALS, IN THE SOUTHEAST REGION OF
 THE OFFICE OF PERSONNEL MANAGEMENT (OPM) WHO PERFORM CIVIL SERVICE
 COMMISSION (CSC) FUNCTIONS PURSUANT TO SEC. 25(A) OF THE EXECUTIVE
 ORDER.  /4/ SPECIFICALLY, IT SEEKS ONLY SUCH EMPLOYEES IN THE PERSONNEL
 MANAGEMENT AND EVALUATION DIVISION, THE OFFICE OF LABOR-MANAGEMENT
 RELATIONS, THE PERSONNEL MANAGEMENT AND LABOR RELATIONS TRAINING
 INSTITUTE, AND CERTAIN AREA OFFICES.  /5/ THE ACTIVITY CONTENDS THAT THE
 PETITIONER DOES NOT QUALIFY AS A LABOR ORGANIZATION PURSUANT TO SEC.
 1(B) AND 2(E)(1) OF THE ORDER /6/ BECAUSE ITS PRINCIPAL OFFICERS ARE
 EITHER SUPERVISORS OR PERFORM WORK WHICH WOULD RESULT IN A CONFLICT OF
 INTEREST OR OTHERWISE BE INCOMPATIBLE WITH THEIR OFFICIAL DUTIES.  IT
 ALSO CONTENDS THAT THE UNIT SOUGHT WOULD LEAD TO FRAGMENTATION AND WOULD
 NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
 FURTHER, THE ACTIVITY ARGUES THAT CERTAIN CLASSIFICATIONS OF EMPLOYEES
 SHOULD BE EXCLUDED FROM THE PROPOSED UNIT.  THE PETITIONER, ON THE OTHER
 HAND, CONTENDS THAT IT QUALIFIES AS A LABOR ORGANIZATION AS ITS
 PRINCIPAL OFFICERS ARE NEITHER SUPERVISORS NOR MANAGEMENT OFFICIALS.  IT
 ALSO CONTENDS THAT THE UNIT SOUGHT IS AN APPROPRIATE UNIT AS IT CONTAINS
 ALL EMPLOYEES IN THE SOUTHEAST REGION WHO PERFORM WORK PURSUANT TO SEC.
 25(A) OF THE ORDER.
 
    IN THE AUTHORITY'S VIEW, APART FROM OTHER CONSIDERATION, IT WOULD NOT
 PROMOTE THE PURPOSES AND POLICIES OF THE ORDER OR THE FEDERAL
 LABOR-MANAGEMENT RELATIONS STATUTE TO DECIDE THE APPROPRIATE UNIT AND
 RELATED ISSUES RAISED IN THIS CASE BY APPLICATION OF THE PROVISIONS OF
 EXECUTIVE ORDER 11491.
 
    AS STATED ABOVE, THE PETITIONER FILED A PETITION PURSUANT TO
 PROVISIONS OF EXECUTIVE ORDER 11491 SEEKING AN ELECTION IN A UNIT OF
 EMPLOYEES WHO PERFORM CIVIL SERVICE COMMISSION FUNCTIONS PURSUANT TO
 SEC. 25(A) OF THE ORDER;  SPECIFICALLY, EMPLOYEES WHO PROVIDED GUIDANCE
 TO AGENCIES ON THE EXECUTIVE ORDER LABOR-MANAGEMENT RELATIONS PROGRAM,
 WHO CONTINUOUSLY REVIEWED THAT PROGRAM FOR CERTAIN SPECIFIED PURPOSES.
 FINALLY, SEC. 25(A) PROVIDED THAT FROM TIME-TO-TIME, THE CIVIL SERVICE
 COMMISSION WOULD REPORT TO THE FEDERAL LABOR RELATIONS COUNCIL ON THE
 STATE OF THE EXECUTIVE ORDER PROGRAM WITH ANY RECOMMENDATIONS FOR ITS
 IMPROVEMENT.
 
    EFFECTIVE JANUARY 11, 1979, LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
 SERVICE IS GOVERNED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE RATHER THAN EXECUTIVE ORDER 11491.  WHILE THE OFFICE OF
 PERSONNEL MANAGEMENT NOW PERFORMS MANY OF THE FUNCTIONS PREVIOUSLY
 PERFORMED BY THE CIVIL SERVICE COMMISSION, THE STATUTE HAS SUBSTANTIALLY
 MODIFIED THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS PROGRAM FROM
 THAT WHICH EXISTED UNDER THE ORDER.  THE EMPLOYEES SOUGHT BY THE
 PETITION ARE NOT CARRYING OUT FUNCTIONS UNDER THE EXECUTIVE ORDER
 PROGRAM, E.G., GIVING GUIDANCE UNDER SUCH A PROGRAM OR REPORTING TO THE
 FEDERAL LABOR RELATIONS COUNCIL, WHICH NO LONGER EXISTS.
 
    AS A RESULT OF THESE CHANGES IN THE PROGRAM, IN THE AUTHORITY'S VIEW,
 THE ISSUES PRESENTED BY THIS CASE, PRIMARILY THE VIABILITY OF THE UNIT
 SOUGHT, ARE NOT LITIGABLE UNDER THE EXECUTIVE ORDER.  RATHER, THEY
 SHOULD MORE APPROPRIATELY BE ADDRESSED UNDER THE PROVISIONS OF THE
 FEDERAL LABOR-MANAGEMENT RELATIONS STATUTE.  ACCORDINGLY, THE AUTHORITY
 WILL DISMISS THE PETITION HEREIN WITHOUT PREJUDICE TO THE RIGHT OF THE
 PETITIONER TO FILE UNDER THE STATUTE.
 
                                   ORDER
 
    THE PETITION IN CASE NO. 40-9000(RO) IS HEREBY DISMISSED. ISSUED,
 WASHINGTON, D.C., MAY 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE NAME OF THE AGENCY AND ACTIVITY, FORMERLY CIVIL SERVICE
 COMMISSION AND ATLANTA REGION RESPECTIVELY, APPEAR AS AMENDED PURSUANT
 TO A MOTION, UNOPPOSED, AND GRANTED BY THE HEARING OFFICER AT THE
 HEARING.
 
    /2/ THE ACTIVITY'S MOTION FOR A CONTINUANCE OF THE HEARING BASED ON
 THE REORGANIZATION OF THE CIVIL SERVICE COMMISSION AS A RESULT OF THE
 CIVIL SERVICE REFORM ACT OF 1978 WAS DENIED BY THE HEARING OFFICER.  THE
 OFFICE OF PERSONNEL MANAGEMENT (OPM) REQUESTED THAT THIS CASE, THEN
 PENDING BEFORE THE AUTHORITY, BE REOPENED TO OBTAIN EVIDENCE RELATING TO
 THE PRESENT ORGANIZATION AND FUNCTIONS OF OPM AS A RESULT OF CHANGES
 INVOLVING OPM WHICH OCCURRED PURSUANT TO REORGANIZATION PLAN NO. 2 OF
 1978 AND THE CIVIL SERVICE REFORM ACT OF 1978.  THE AUTHORITY GRANTED
 THAT REQUEST AND ISSUED ITS DECISION AND REMAND IN WHICH IT ORDERED THE
 REGIONAL DIRECTOR TO TAKE APPROPRIATE ACTION TO CAUSE THE RECORD IN THIS
 CASE TO BE REOPENED TO DEVELOP EVIDENCE AND ARGUMENTS CONCERNING THE
 PRESENT ORGANIZATIONAL STRUCTURE AND FUNCTIONS OF THE ACTIVITY, AND THE
 CURRENT DUTIES AND FUNCTIONS OF THE CLAIMED EMPLOYEES AS COMPARED WITH
 THOSE PREVIOUSLY PERFORMED WHEN THEY WERE EMPLOYED BY THE CIVIL SERVICE
 COMMISSION.  A SUPPLEMENTAL HEARING FOR THAT PURPOSE WAS CONDUCTED
 BEFORE HEARING OFFICER ADAM J. CONTI.  THE HEARING OFFICER'S RULINGS
 MADE AT THAT HEARING ARE LIKEWISE FREE FROM PREJUDICIAL ERROR AND ARE
 HEREBY AFFIRMED.
 
    /3/ THE AUTHORITY RECEIVED A SUPPLEMENTAL BRIEF FROM THE ACTIVITY
 AFTER THE DUE DATE.  NO REASON HAVING BEEN ADVANCED BY THE ACTIVITY FOR
 THE UNTIMELINESS OF ITS BRIEF, THE AUTHORITY HAS NOT CONSIDERED IT.
 
    /4/ SECTION 25(A) OF THE ORDER PROVIDES, IN PERTINENT PART:
 
    THE CIVIL SERVICE COMMISSION SHALL CONTINUOUSLY REVIEW THE OPERATION
 OF THE FEDERAL
 
    LABOR-MANAGEMENT RELATIONS PROGRAM TO ASSIST IN ASSURING ADHERENCE TO
 ITS PROVISIONS AND MERIT
 
    SYSTEM REQUIREMENTS;  IMPLEMENT TECHNICAL ADVICE AND INFORMATION
 PROGRAMS FOR THE
 
    AGENCIES;  ASSIST IN THE DEVELOPMENT OF PROGRAMS FOR TRAINING AGENCY
 PERSONNEL AND MANAGEMENT
 
    OFFICIALS IN LABOR-MANAGEMENT RELATIONS;  . . .
 
    /5/ THE RECORD, AS REOPENED PURSUANT TO THE AUTHORITY'S DECISION AND
 REMAND, REVEALS THAT THERE HAS BEEN NO SIGNIFICANT CHANGE IN THE
 ORGANIZATIONAL STRUCTURE OF THE ACTIVITY, AND THE CATEGORIES OF
 EMPLOYEES SOUGHT BY THE PETITIONER REMAIN IN THE SAME ORGANIZATIONAL
 FRAMEWORK AND PERFORM TASKS SIMILAR TO THOSE PERFORMED BEFORE THE
 REORGANIZATION.
 
    /6/ SECTION 1(B) OF THE ORDER PROVIDES, IN PERTINENT PART, THAT SEC
 1(A) OF THE ORDER:
 
    . . . DOES NOT AUTHORIZE PARTICIPATION IN THE MANAGEMENT OF A LABOR
 ORGANIZATION OR ACTING
 
    AS A REPRESENTATIVE OF SUCH AN ORGANIZATION BY A SUPERVISOR, . .  .
 OR BY AN EMPLOYEE WHEN THE
 
    PARTICIPATION OR ACTIVITY WOULD RESULT IN A CONFLICT OR APPARENT
 CONFLICT OF INTEREST OR
 
    OTHERWISE BE INCOMPATIBLE WITH LAW OR WITH THE OFFICIAL DUTIES OF THE
 EMPLOYEE.
 
    SECTION 2(E)(1) OF THE ORDER PROVIDES, IN PERTINENT PART, THAT:
 
    "LABOR ORGANIZATION" . . . DOES NOT INCLUDE AN ORGANIZATION WHICH . .
 . CONSISTS OF
 
    MANAGEMENT OFFICIALS OR SUPERVISORS, . . .