Department of Health, Education and Welfare, Office of the Secretary (Agency) and American Federation of Government Employees, AFL-CIO (Petitioner)
[ v03 p866 ]
03:0866(125)UC
The decision of the Authority follows:
3 FLRA No. 125
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, OFFICE OF THE SECRETARY
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Petitioner
Assistant Secretary
Case No. 22-09477(UC)
DECISION AND ORDER
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING ON THIS MATTER WAS HELD BEFORE A HEARING OFFICER
OF THE AUTHORITY. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE
FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 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
(5 CFR 2400.2). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SECTION
7101-7135).
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
AGENCY AND THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, (AFGE), THE AUTHORITY FINDS:
THE AFGE FILED THE INSTANT PETITION SEEKING TO CONSOLIDATE EIGHT
UNITS REPRESENTED BY SEVEN DIFFERENT AFGE LOCALS WITHIN THE DEPARTMENT
OF HEALTH, EDUCATION AND WELFARE (AGENCY OR HEW) NATIONWIDE. THE EIGHT
UNITS WHICH THE AFGE WOULD CONSOLIDATE (ATTACHMENT 1) ARE DESCRIBED BY
THE UNION AS ENCOMPASSING ALL EMPLOYEES REPRESENTED BY THE AFGE IN THE
ADMINISTRATIVE SUBDIVISION OF THE AGENCY KNOWN AS THE OFFICE OF THE
SECRETARY. THE AGENCY, IN OPPOSITION TO THE CONSOLIDATION, ARGUES THAT
THE EMPLOYEES IN THE PROPOSED UNIT DO NOT POSSESS A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST, NOR WILL THE PROPOSED UNIT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
AT THE TIME OF THE HEARING HEREIN, OCTOBER 12, 1978, THE AGENCY WAS
ADMINISTRATIVELY COMPOSED OF A NUMBER OF COMPONENTS (SUCH AS THE OFFICE
OF GENERAL COUNSEL AND THE OFFICE FOR CIVIL RIGHTS) WHICH TOGETHER
COMPRISE THE OFFICE OF THE SECRETARY (OS), AND FIVE "PRIMARY OPERATING
COMPONENTS" CHARGED WITH SPECIFIC MISSIONS OR GROUPS OF MISSIONS. OS IS
A STAFF ORGANIZATION WHICH PROVIDES SUPPORT AND GUIDANCE TO AND FOR THE
SECRETARY. THE PRIMARY OPERATING COMPONENTS (POC'S) ARE LINE
ORGANIZATIONS RESPONSIBLE FOR THE PERFORMANCE AND FULFILLMENT OF THEIR
SEVERAL MISSIONS. THE FIVE PRIMARY OPERATING COMPONENTS ARE: OFFICE OF
HUMAN DEVELOPMENT SERVICES (OHDS); PUBLIC HEALTH SERVICE (PHS); HEALTH
CARE FINANCING ADMINISTRATION (HCFA); SOCIAL SECURITY ADMINISTRATION
(SSA); AND EDUCATION DIVISION (ED).
THE AGENCY IS FURTHER DIVIDED INTO A HEADQUARTERS LEVEL LOCATED IN
WASHINGTON, D.C. AND TEN PRINCIPAL REGIONAL OFFICES. THE TEN PRINCIPAL
REGIONAL OFFICES ENCOMPASS AMONG OTHERS, EMPLOYEES ASSIGNED TO AND
WORKING FOR THE PRIMARY OPERATING COMPONENTS.
AS NOTED IN ATTACHMENT 1, THE AFGE SEEKS TO CONSOLIDATE A UNIT OF OS
EMPLOYEES AT HEADQUARTERS, AND SEVEN REGIONAL UNITS. IT APPEARS CLEAR
FROM THE RECORD THAT SEVERAL OF THE UNITS SOUGHT TO BE CONSOLIDATED
INCLUDE NOT ONLY EMPLOYEES OF THE OS, BUT ALSO EMPLOYEES OF OTHER
COMPONENTS OF THE AGENCY, INCLUDING EMPLOYEES ASSIGNED TO THE OFFICE OF
EDUCATION.
IN THE AUTHORITY'S VIEW, FOR THE REASONS STATED BELOW, 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.
ON OCTOBER 17, 1979, SUBSEQUENT TO THE FILING OF THE PETITION HEREIN,
PRESIDENT CARTER SIGNED INTO LAW THE DEPARTMENT OF EDUCATION
ORGANIZATION ACT (ACT), PUBLIC LAW 96-88, (93 STAT. 668). SAID ACT
ESTABLISHES WITHIN THE EXECUTIVE BRANCH, A NEW CABINET DEPARTMENT-- THE
DEPARTMENT OF EDUCATION; PROVIDES THAT THE NEW DEPARTMENT SHALL BE
HEADED BY A SECRETARY OF EDUCATION; TRANSFERS TO THE NEW DEPARTMENT THE
EDUCATION AND EDUCATION-RELATED FUNCTIONS OF THE DEPARTMENT OF HEW AND
SOME OF THE EDUCATION-RELATED FUNCTIONS OF SEVERAL OTHER DEPARTMENTS AND
AGENCIES: AND REDESIGNATES THE DEPARTMENT OF HEW AS THE DEPARTMENT OF
HEALTH AND HUMAN SERVICES. SPECIFICALLY, TITLE III, SECTION 301(B)(1)
OF THE ACT TRANSFERS TO THE SECRETARY OF EDUCATION ALL FUNCTIONS OF THE
DEPARTMENT OF HEW, THE ASSISTANT SECRETARY FOR EDUCATION, OR THE
COMMISSIONER OF EDUCATION OF THE DEPARTMENT OF HEW WITH RESPECT TO (A)
THE EDUCATION DIVISION OF THE DEPARTMENT OF HEW; (B) THE OFFICE OF THE
ASSISTANT SECRETARY OF EDUCATION. FURTHER, SUBSECTION 301(B)(2)
TRANSFERS TO THE SECRETARY OF EDUCATION ALL FUNCTIONS OF THE SECRETARY
OF HEW, RELATING TO EDUCATION WHICH ARE ADMINISTERED THROUGH THE OFFICE
OF THE SECRETARY OF HEW.
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT CASE PROCEEDING HAVE THIS DAY BEEN SENT TO THE
PARTIES BELOW:
MR. RICHARD B. HACKER
ROOM B-448, TRANS POINT BUILDING
DEPARTMENT OF HEW
OFFICE OF THE SECRETARY
330 INDEPENDENCE AVENUE, SW.
WASHINGTON, D.C. 20201
MR. JAMES NEUSTADT
OFFICE OF THE GENERAL COUNSEL
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
MR. JAMES F. DONOVAN
REGIONAL OFFICE
HEW -- REGION I
PERSONAL OFFICE, ROOM 1503
JFK FEDERAL BUILDING
BOSTON, MASSACHUSETTS 02203
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
ATTN: MR. TED L. MERRILL,
DIRECTOR OF ORGANIZATION
MR. ALEXANDER T. GRAHAM
REGIONAL DIRECTOR
FEDERAL LABOR RELATIONS AUTHORITY
1133 15TH STREET, NW., ROOM 300
WASHINGTON, D.C. 20005
THE DEPARTMENT OF EDUCATION WAS ESTABLISHED ON MAY 6, 1980. IT
APPEARS CLEAR THAT THE EFFECT OF THE ACT HAS OR WILL REQUIRE SUBSTANTIAL
REORGANIZATION WITHIN THE FORMER DEPARTMENT OF HEW IN ORDER TO SEVER THE
EDUCATION AND EDUCATION RELATED FUNCTIONS FOR THE PREVIOUS DEPARTMENT
AND ESTABLISH THE NEW DEPARTMENT OF HEALTH AND HUMAN SERVICES. NOTING
THAT THE EMPLOYEES IN THE UNITS SOUGHT TO BE CONSOLIDATED IN THE INSTANT
PETITION, ESPECIALLY IN THE REGIONAL OFFICES, CROSS OVER ORGANIZATIONAL
LINES AND INCLUDE OFFICE OF EDUCATION PERSONNEL, IT APPEARS EQUALLY
CLEAR THAT SUCH REORGANIZATIONS WILL CREATE SIGNIFICANT CHANGES IN THE
PROPOSED CONSOLIDATED UNIT.
CONSIDERING PARTICULARLY THE ACT AND ITS FORSEEABLE EFFECT IN
CHANGING THE STRUCTURE OF THOSE FORMER DEPARTMENT OF HEW UNITS SOUGHT
TO
BE CONSOLIDATED HEREIN, AS WELL AS THE FACT THAT COMMENCING ON JANUARY
11, 1979, LABOR MANAGEMENT RELATIONS IN THE FEDERAL SERVICE CAME UNDER
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE RATHER THAN
EXECUTIVE ORDER 11491, IN THE AUTHORITY'S VIEW THE ISSUES PRESENTED BY
THIS CASE, PRIMARILY THE VIABILITY OF THE CONSOLIDATED UNITS SOUGHTS,
SHOULD NOT BE LITIGATED UNDER THE EXECUTIVE ORDER. RATHER, FOLLOWING
THE REORGANIZATIONS REQUIRED BY THE ACT, THOSE ISSUES 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. 22-09477(UC) IS HEREBY DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 31, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
LIST OF UNITS THE PETITIONER PROPOSES TO CONSOLIDATE
HEADQUARTERS
INCLUDED: ALL NONPROFESSIONAL, GENERAL SCHEDULE AND WAGE GRADE
EMPLOYEES OF THE OFFICE OF THE SECRETARY, DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, LOCATED IN WASHINGTON, D.C. METROPOLITAN AREA.
EXCLUDED: ALL PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, SUMMER INTERNS, SUMMER AIDES, SUPERVISORS AND GUARDS
AS DEFINED IN EXECUTIVE ORDER 11491, AND EMPLOYEES IN POSITIONS WHICH
ARE CONFIDENTIAL WITH RESPECT TO LABOR RELATIONS MATTERS.
REGION I
INCLUDED: ALL EMPLOYEES OF THE DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, REGIONAL OFFICE I, BOSTON, MASSACHUSETTS.
EXCLUDED: PROFESSIONAL AND MANAGERIAL OFFICIALS, GUARDS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK EXCEPT IN A PURELY CLERICAL CAPACITY,
AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491.
REGION III
INCLUDED: ALL ELIGIBLE NON-SUPERVISORY EMPLOYEES OF DHEW, REGION
III, EMPLOYED IN PHILADELPHIA, PENNSYLVANIA.
EXCLUDED: ALL DHEW, REGION III FIELD OR DISTRICT OFFICE EMPLOYEES;
EMPLOYEES OF THE DISTRICT OR BRANCH OFFICES OF THE SOCIAL SECURITY
ADMINISTRATION; MEMBERS OF THE COMMISSIONED OFFICERS CORPS OF REGION
III; TEMPORARY EMPLOYEES (90 DAYS OR LESS); SUMMER AIDES; SUMMER
GRADUATE STUDENTS; ALL MANAGEMENT OFFICIALS; SUPERVISORS;
PROFESSIONALS; GUARDS; CONFIDENTIAL EMPLOYEES; AND EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.
REGION V
INCLUDED: ALL PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES OF THE
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION V, WITH ITS
PRINCIPAL OFFICES LOCATED AT 300 WACKER DRIVE, CHICAGO, ILLINOIS.
EXCLUDED: ALL EMPLOYEES OF THE DISTRICT OFFICES OF THE SOCIAL
SECURITY ADMINISTRATION, ALL EMPLOYEES OF AND THOSE EMPLOYEES SERVICED
BY THE CLEVELAND BRANCH OFFICE OF THE REGION V PERSONNEL OFFICE, MEMBERS
OF THE COMMISSIONED OFFICERS CORPS OF REGION V, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND SUPERVISORS AND GUARDS AS DEFINED IN EXECUTIVE
ORDER 11491, AS AMENDED.
REGION V
INCLUDED: ALL PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES OF THE
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, OFFICE OF CIVIL RIGHTS,
CLEVELAND, OHIO.
EXCLUDED: CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS AND SUPERVISORS AS DEFINED IN THE ORDER.
REGION VIII
INCLUDED: ALL NON-SUPERVISORY EMPLOYEES EXCLUDING PROFESSIONALS OF
THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VIII, LOCATED IN
THE DENVER, COLORADO METROPOLITAN AREA AND ASSIGNED TO THE FOLLOWING
ORGANIZATION COMPONENTS:
1. OFFICE OF THE SECRETARY
2. OFFICE OF EDUCATION
3. SOCIAL AND REHABILITATION SERVICE
4. HEALTH SERVICE AND MENTAL HEALTH ADMINISTRATION
5. ENVIRONMENTAL HEALTH SERVICE
6. NATIONAL INSTITUTE OF HEALTH
7. SOCIAL SECURITY ADMINISTRATION OFFICE OF THE REGIONAL
COMMISSIONER AND THE REGIONAL
OFFICES OF THE FOLLOWING BUREAUS:
A. DISTRICT OFFICE OPERATIONS
B. HEALTH INSURANCE
C. DISABILITY INSURANCE
D. HEARING AND APPEALS
8. FOOD AND DRUG ADMINISTRATION (REGIONAL OFFICE ONLY)
EXCLUDED: ALL SUPERVISORY AND MANAGERIAL PERSONNEL, PROFESSIONAL
EMPLOYEES AND ALL OTHER EMPLOYEES ENGAGED IN PERSONNEL WORK IN OTHER
THAN A CLERICAL CAPACITY, GUARDS AND SECURITY EMPLOYEES AS DESCRIBED IN
SECTION 10(B) OF EXECUTIVE ORDER 11491.
REGION VIII
INCLUDED: ALL PROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, REGION VIII AND ALL NON-SUPERVISORY EMPLOYEES OF
THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VIII LOCATED IN
THE DENVER, COLORADO METROPOLITAN AREA AND ASSIGNED TO THE FOLLOWING
ORGANIZATIONAL COMPONENTS:
OFFICE OF THE SECRETARY; OFFICE OF EDUCATION; SOCIAL AND
REHABILITATION SERVICE; HEALTH
SERVICES AND MENTAL HEALTH ADMINISTRATION; ENVIRONMENTAL HEALTH
SERVICE; NATIONAL INSTITUTES
OF HEALTH, FOOD AND DRUG ADMINISTRATION (REGIONAL OFFICE ONLY); AND
SOCIAL SECURITY
ADMINISTRATION, OFFICE OF REGIONAL COMMISSIONER AND THE REGIONAL
OFFICES OF THE FOLLOWING
BUREAUS:
DISTRICT OFFICE OPERATIONS; HEALTH INSURANCE; DISABILITY INSURANCE;
AND HEARINGS AND
APPEALS.
EXCLUDED: PROFESSIONAL EMPLOYEES IN THE FOOD AND DRUG
ADMINISTRATION, MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK, TEMPORARY EMPLOYEES UNDER SCHEDULE A APPOINTMENTS AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
REGION IX
INCLUDED: ALL PROFESSIONAL AND NON-PROFESSIONAL REGIONAL OFFICE
EMPLOYEES, INCLUDING THE OFFICE OF EDUCATION, UNDER THE APPOINTING
AUTHORITY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION IX.
EXCLUDED: FIELD OR DISTRICT OFFICE EMPLOYEES OF THE BUREAU OF
DISTRICT OFFICE OPERATIONS, EMPLOYEES OF THE "STAY-IN-SCHOOL" PROGRAM,
COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, MANAGEMENT
OFFICIALS, SUPERVISORS, GUARDS AND EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY.