United States Department of Labor, Office of the Solicitor, Region III (Activity) and National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO (Petitioner)

 8 FLRA No. 68
 
 UNITED STATES DEPARTMENT OF LABOR,
 OFFICE OF THE SOLICITOR, REGION III
 Activity
 
 and
 
 NATIONAL COUNCIL OF FIELD LABOR
 LOCALS, AFGE, AFL-CIO
 Petitioner
 
                                            Case No. 2-RO-34
 
                            DECISION AND ORDER
 
    UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
 UNDER SECTION 7111(B)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING
 OFFICER OF THE AUTHORITY.  THE AUTHORITY HAS REVIEWED THE HEARING
 OFFICER'S RULINGS MADE AT THE HEARING AND FINDS THAT THEY ARE FREE FROM
 PREJUDICIAL ERROR.  THE RULINGS ARE HEREBY AFFIRMED.
 
    UPON THE ENTIRE RECORD, INCLUDING A BRIEF SUBMITTED BY THE ACTIVITY,
 THE AUTHORITY FINDS:  THE NATIONAL COUNCIL OF FIELD LABOR LOCALS, AFGE,
 AFL-CIO, (THE PETITIONER), SEEKS AN ELECTION IN A UNIT CONSISTING OF ALL
 NONSUPERVISORY ATTORNEYS IN THE OFFICE OF THE SOLICITOR, REGION III OF
 THE U.S. DEPARTMENT OF LABOR, PHILADELPHIA, EXCLUDING ALL OTHER
 EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS, AND EMPLOYEES DESCRIBED IN
 SECTION 7112(B)(2), (3), (4), (6) AND (7) OF THE STATUTE.  ADDITIONALLY,
 THE PETITIONER SEEKS TO HAVE THIS UNIT INCLUDED IN THE EXISTING
 NATION-WIDE UNIT WHICH IT CURRENTLY REPRESENTS.  /1/ THE ACTIVITY AND
 THE AGENCY ASSERT THAT THE PETITION SHOULD BE DISMISSED BECAUSE OF,
 AMONG OTHER THINGS, THE PROSCRIPTION CONTAINED IN SECTION 7112(B)(4) OF
 THE STATUTE;  THAT IS, THE UNIT WOULD BE COMPOSED OF EMPLOYEES WHO ARE
 ENGAGED IN ADMINISTERING PROVISIONS OF THE STATUTE.
 
    THE OFFICE OF THE SOLICITOR, DEPARTMENT OF LABOR, IS COMPOSED OF A
 NATIONAL HEADQUARTERS OFFICE IN WASHINGTON, D.C., EIGHT MAJOR REGIONAL
 OFFICES, AND SEVERAL FIELD OFFICES, EACH OF THE EIGHT REGIONAL OFFICES
 SHARES THE COMMON MISSION OF PROVIDING LEGAL SERVICES TO THE VARIOUS
 ENTITIES WITHIN THE DEPARTMENT OF LABOR.  THE ACTIVITY IS STAFFED BY A
 REGIONAL DIRECTOR, A DEPUTY REGIONAL DIRECTOR, TWO REGIONAL COUNSELS AND
 APPROXIMATELY TWENTY-FOUR STAFF ATTORNEYS.  /2/ ALTHOUGH THE STAFF
 ATTORNEYS HAVE PRIMARY AREAS OF ASSIGNMENT, IT IS THE POLICY AND
 PRACTICE OF THE OFFICE OF THE SOLICITOR THAT ALL ATTORNEYS BE
 GENERALISTS WHO ARE SUBJECT TO ASSIGNMENT TO ANY AREA.
 
    A THRESHOLD ISSUE IN THIS CASE IS WHETHER THE AUTHORITY IS PRECLUDED
 FROM FINDING THE PETITIONED FOR UNIT APPROPRIATE BECAUSE OF SECTION
 7112(B)(4) OF THE STATUTE WHICH PROVIDES THAT A UNIT MAY NOT BE
 DETERMINED TO BE APPROPRIATE IF IT INCLUDES AN EMPLOYEE ENGAGED IN
 ADMINISTERING PROVISIONS OF THE STATUTE.  THUS, AS APPLICABLE TO THIS
 CASE, THE AUTHORITY MAY NOT FIND THE PETITIONED FOR UNIT APPROPRIATE IF
 IT INCLUDES EMPLOYEES ENGAGED IN ADMINISTERING SECTION 7120 OF THE
 STATUTE, AS ALLEGED BY THE ACTIVITY.
 
    SECTION 7120(A) THROUGH (E) OF THE STATUTE RELATES TO STANDARDS OF
 CONDUCT FOR LABOR ORGANIZATIONS IN THE FEDERAL SECTOR.  THE REQUIREMENTS
 OF THESE SUBSECTIONS ARE NOT MATERIALLY DIFFERENT FROM, AND THE LANGUAGE
 IN SOME OF THE SUBSECTIONS IS IDENTICAL TO, THE REQUIREMENTS CONTAINED
 IN SECTION 18 OF EXECUTIVE ORDER 11491, AS AMENDED, WHICH PRECEDED
 SECTION 7120 AND FULFILLED A SIMILAR FUNCTION WITH REGARD TO LABOR
 ORGANIZATIONS IN THE FEDERAL SECTOR.  THE REGULATIONS WHICH THE
 ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS (ASSISTANT
 SECRETARY) HAS PRESCRIBED TO IMPLEMENT SECTION 7120(A) THROUGH (3) OF
 THE STATUTE ARE NOT MATERIALLY DIFFERENT FROM THE PRIOR REGULATIONS
 ISSUED BY THE ASSISTANT SECRETARY UNDER SECTION 18 OF THE EXECUTIVE
 ORDER.  /3/
 
    AS NOTED EARLIER, THE ATTORNEYS IN THE PETITIONED FOR UNIT ARE
 GENERALISTS AND THUS ARE RESPONSIBLE, INTER ALIA, FOR PROVIDING LEGAL
 ADVICE AND ASSISTANCE WITH REGARD TO THE ENFORCEMENT OF SECTION 7120(A)
 THROUGH (E) OF THE STATUTE.  WHILE THERE IS NO EVIDENCE IN THE RECORD AS
 TO THE ACTUAL PARTICIPATION TO DATE OF THESE ATTORNEYS IN SUCH
 ACTIVITIES, THE AUTHORITY TAKES OFFICIAL NOTICE THAT SIMILARLY SITUATED
 EMPLOYEES PARTICIPATED IN SUCH ACTIVITIES UNDER THE EXECUTIVE ORDER.
 /4/ UNDER SUCH CIRCUMSTANCES IT IS CLEAR THAT IN THE PETITIONED FOR UNIT
 EMPLOYEES HAVE THE DUTY AND WILL IN FACT BE CALLED UPON TO ADMINISTER
 THE PROVISIONS OF SECTION 7120(A) THROUGH (E) OF THE STATUTE.  SEE
 FEDERAL MEDIATION AND CONCILIATION SERVICE, REGION 7, SAN FRANCISCO,
 CALIFORNIA, 3 FLRA NO. 19 (1980).  THUS, THE AUTHORITY IS PRECLUDED FROM
 FINDING THE PETITIONED FOR UNIT APPROPRIATE BECAUSE OF SECTION
 7112(B)(4) OF THE STATUTE.
 
                                   ORDER
 
    ACCORDINGLY, IT IS HEREBY ORDERED THAT THE PETITIONED IN CASE NO.
 2-RO-34 BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MARCH 26, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE PETITIONER IS THE EXCLUSIVE REPRESENTATIVE OF A NATIONWIDE
 UNIT OF FIELD EMPLOYEES OF THE DEPARTMENT OF LABOR, DESCRIBED AS:  ALL
 PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE FIELD DUTY STATIONS OF
 THE DEPARTMENT OF LABOR, EXCLUDING EMPLOYEES ENGAGED IN FEDERAL
 PERSONNEL WORK IN OTHER THAN A CLERICAL CAPACITY, MANAGEMENT OFFICIALS,
 SUPERVISORS, AND NONCLERICAL EMPLOYEES OF THE LABOR-MANAGEMENT SERVICES
 ADMINISTRATION.
 
    /2/ THE PARTIES ARE IN AGREEMENT THAT THE REGIONAL DIRECTOR, DEPUTY
 REGIONAL DIRECTOR, AND TWO REGIONAL COUNSELS ARE SUPERVISORS AS DEFINED
 IN SECTION 7103(A)(10) OF THE STATUTE AND MUST THEREBY BE EXCLUDED FROM
 ANY UNIT FOUND APPROPRIATE BY THE AUTHORITY.
 
    /3/ COMPARE 29 CFR PARTS 207-209 WITH 40 FED. REG 19980, 19992-19998
 (1975).
 
    /4/ AS AN EXAMPLE, SEE LOCAL 1841, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, 6 A/SLMR 396 (1976), WHERE AN ATTORNEY ASSIGNED TO
 THE OFFICE OF THE SOLICITOR, SAN FRANCISCO, CALIFORNIA, REPRESENTED THE
 DIRECTOR LMSE BEFORE THE ADMINISTRATIVE LAW JUDGE.  ALSO IN AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1592, 6 A/SLMR 520
 (1976), AN ATTORNEY ASSIGNED TO THE OFFICE OF THE SOLICITOR, DENVER,
 COLORADO REPRESENTED THE DIRECTOR LMSE BEFORE THE ADMINISTRATIVE LAW
 JUDGE.