[ v11 p59 ]
The decision of the Authority follows:
11 FLRA No. 21 DEPARTMENT OF HEALTH AND HUMAN SERVICES, /1/ OFFICE OF THE SECRETARY Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Petitioner Assistant Secretary Case No. 22-09477(UC) DECISION AND ORDER ON REMAND This matter is before the Authority as a result of an Order of the United States District Court for the District of Columbia /2/ directing the Authority to vacate its decision previously issued herein, /3/ and to reopen the record to reconsider the petition filed by American Federation of Government Employees, AFL-CIO (AFGE) under Executive Order 11491, as amended. Pursuant to the Court's Order, on August 5, 1981 the Authority vacated the previous decision, ordered that the case be reopened, and remanded the case to the Regional Director for further processing. Thereafter, the hearing was reopened for the purpose of allowing the parties to submit evidence regarding the effect of the Department of Education Reorganization Act on the appropriateness of the petition, as required by the Court's Order. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Authority finds: AFGE filed the instant petition seeking to consolidate eight units represented by seven different AFGE locals within the Department of Health, Education and Welfare (HEW), in the administrative subdivision known as the Office of the Secretary (OS) nationwide. Thereafter, HEW was reorganized into the Department of Health and Human Services (HHS) and the separate Department of Education, and the petition was amended to encompass only employees of the renamed Agency, HHS. During the course of the reopened hearing, the petition was amended in two respects. A unit of employees in the Office of the Secretary, Office of Civil Rights, located at Cleveland, Ohio, was removed from the petition since all members of that unit (together with approximately 60 percent of the Office of Civil Rights employees nationwide) had been transferred to the Department of Education. The petition was also amended to include a unit which had recently been certified, composed of employees in HHS' Office of the Secretary, Office of the General Counsel, located in Baltimore, Maryland. Thus, the consolidated unit which AFGE seeks to represent consists of eight units currently represented by its locals, including employees in HHS' Office of the Secretary. The Agency contends that the consolidated unit sought does not satisfy the criteria for appropriateness set forth in Executive Order 11491, as amended. /4/ Specifically, the Agency contends that the criteria set forth in section 10(b) of the Executive Order /5/ are not satisfied herein because there is no community of interest among the employees sought in that they have different missions, supervision and jobs, and are geographically dispersed across the nation; and effective dealings as well as efficiency of agency operations would not be served by consolidation since relevant authority has been delegated among the existing bargaining levels, there is no centralized labor relations operational activity or direction, and an artificial locus of bargaining would result from consolidation. The Petitioner contends that the employees within the petitioned for consolidated unit share a community of interest because of their common supervision by the Secretary of HHS, who has ultimate authority to establish common personnel and labor relations policies and conditions, and because they have similar working conditions. AFGE further argues that effective dealings would be enhanced by the consolidation because ultimate authority is vested in the Secretary, and that consolidation would promote efficiency of agency operations since it would be cost-effective, promote consistency and uniformity in negotiations and contract administration, and promote predictability in budgeting and manpower planning relative to negotiations. The Department of Health and Human Services is a cabinet-level agency which was created when the Department of Health, Education and Welfare was reorganized. Administratively, the Agency is composed of the Office of the Secretary (OS) and several "operational divisions." The OS is a staff organization which provides support and guidance to the Secretary. It includes, inter alia, the Office of General Counsel and the Office of Civil Rights. The operational divisions are: Office of Human Development Services; Public Health Service; Health Care Financing Administration; and Social Security Administration. The record reveals that, because of the historic evolution of the Agency, the Office of Human Development Services is administratively part of OS, but the remaining operational divisions are separate administrative entities. The Agency is geographically divided into a headquarters office in Washington, D.C., and ten principal regional offices. The Petitioner seeks to consolidate a unit of nonprofessional employees at headquarters, the aforementioned unit of Office of General Counsel employees located in Baltimore (but apparently part of headquarters administratively), and six units which are composed of regional employees. /6/ The regional units are located in Boston (Region I); Philadelphia (Region III); Chicago (Region V); Denver (Region VIII) (two units); and San Francisco (Region IX). Although the consolidated unit sought is described as a unit of OS employees, and it appears that the eight units which would be consolidated include all of the OS employees currently represented by the Petitioner, the six Regional units involved also include employees of the operational divisions. Thus, the unit in Region I is composed of all nonprofessional employees with only statutory exclusions; the units in Region III and Region V include all Agency employees except certain branch or district office Social Security Administration employees and Commissioned Officer Corps members; the professional employee and nonprofessional employee units in Region VIII specifically include operational division employees; and the unit in Region IX is a mixed professional-nonprofessional unit with certain specific exclusions. /7/ The eight units which AFGE seeks to consolidate have a total complement of approximately 6,900 employees. HHS has a total of about 150,000 employees; AFGE represents some 58 units, or over 82,000 of the HHS employees. Due to the Agency's broadly defined mission, there has been significant delegation of authority from the Secretary and the Office of the Secretary to the operating divisions. The record reveals that mission responsibility, management, and personnel and labor relations authority have been delegated to the operational divisions, each of which establishes terms and conditions of employment for its employees and has a full regional organization, program staff and line management to implement its mission and to perform personnel and labor relations functions. The line of delegation is from the Secretary to the operational divisions, and from each division to its separate regional structure. The record also reveals that in each region where bargaining units exist, authority to negotiate and to approve contracts has been delegated to the bargaining level by the operational division. Within OS, personnel and labor relations authority have been delegated to the Assistant Secretary for Management and Budget (ASMB) and then to the various offices within OS and the principal regional officers, but only, in the latter instance, insofar as OS personnel is concerned. Headquarters officials of the OS do not supervise personnel of the operational divisions either in headquarters or in the regions. Regional OS officials, such as the principal regional officers, do not supervise personnel of the operational divisions. Interchange of employees among the eight units which AFGE seeks to consolidate is minimal. When labor relations issues or questions arise at the regional level of exclusive recognition, they are referred through operational division channels and the Agency-wide Office of the Assistant Secretary for Personnel Administration; IS involvement through the ASMB is minimal. Finally, the record reveals that the governmental reorganization which resulted in the establishment of a separate Department of Education had little effect on the unit sought herein, except for the disappearance of the Office of Civil Rights unit at Cleveland, mentioned above, since almost all of the employees who were transferred to the new Department had been employees of a separate operational division which was as autonomous as those described above, and few of these employees were in the units which AFGE seeks to consolidate herein. In 1975, Executive Order 11491 was amended by Executive Order 11838 to establish a policy which would facilitate the consolidation of existing exclusive bargaining units. In its Report and Recommendations which accompanied the issuance of Executive Order 11838, the Federal Labor Relations Council emphasized that "the creation of more comprehensive units is a necessary evolutionary step in the development of a program which meets the needs of the parties in the Federal labor-management relations program and best serves the public interest." The Report further stated that a "consolidated unit . . . must still conform to the appropriate unit criteria contained in the Order" and that "(i)n making his determination on the appropriateness of (a) proposed consolidated unit, the Assistant Secretary should be mindful of the policy of facilitating the consolidation of existing bargaining units." /8/ Thereafter, in cases where the Assistant Secretary approved proposed consolidated units, the Council denied review where the Assistant Secretary had affirmatively found, based on the entire record, that the proposed consolidated unit at issue satisfied each of the three appropriate unit criteria specified in section 10(b) of the Order and would promote a more comprehensive bargaining unit structure consistent with the purposes of the Order. /9/ Similarly, the Authority has found a petitioned for consolidated unit appropriate for the purpose of exclusive recognition under the criteria of section 10(b) of the Executive Order where the unit sought encompassed all the employees within the agency represented by the petitioning labor organization; the employees shared a common mission, job classifications, working conditions, and personnel and labor relations policies; and personnel and labor relations functions and policies were centrally established and administered at the national level. /10/ In the instant case, by contrast, based on the particular facts and circumstances presented, the Authority concludes that the petitioned for consolidated unit does not satisfy the three criteria of section 10(b) and therefore cannot be found appropriate. As noted above, while it appears that the unit sought includes all OS employees represented by AFGE, it would additionally include employees within the Agency's operational divisions located in the six regional units who have widely divergent missions. Further, there is no common supervisory thread which runs through the proposed consolidated unit below the level of the Secretary of the Agency. Moreover, responsibility for personnel and labor relations matters has been delegated to the various regions and to activities wherein recognized units exist, and such matters as hiring, promotion, training, discipline and contract negotiation and administration have been delegated to officials at the local level; terms and conditions of employment which derive from common location, such as parking, eating and rest facilities, quality of work space and availability of services, are clearly absent among the units which AFGE seeks to consolidate; and there is little or no interchange among the units involved. Finally, the unit sought would be limited to less than 5 percent of the Agency's employees and to less than 10 percent of those represented by the Petitioner within the Agency, and would be limited to employees in only 5 of the 10 regions. Accordingly, the employees sought are not sufficiently well distributed throughout the administrative and geographic structure of the Agency to constitute a meaningful consolidated unit. In view of all of the above, and most particularly of the lack of common first-line supervision, mission, interchange, personnel and labor relations policy, and terms and conditions of employment, the Authority concludes that the employees sought in the consolidated petition do not share a clear and identifiable community of interest within the meaning of section 10(b) of the Executive Order. Similarly, it would not promote effective dealings in the instant case to require Agency-wide negotiations for a unit consisting of less than 5 per cent of the Agency's employees and limited to only 5 of the 10 regions. Such a unit would not be reflective of the Agency's organizational structure, particularly since effective supervision, personnel authority and control of labor relations have been delegated to the local level. In these circumstances the Authority concludes that neither effective dealings between the parties nor efficiency of Agency operations would be promoted by the proposed unit. With respect to the alternative consolidated unit sought by AFGE consisting of six regional units located in five of the Agency's regions, which unit would exclude the headquarters unit in Washington and the newly certified unit at Baltimore, the record does not indicate that the various employees in the regional units located in Boston, Philadelphia, Chicago, Denver and San Francisco share any clear and identifiable community of interest. Thus, as previously noted, the regions consist of OS employees as well as employees of the various operational divisions, each with different missions and covered by different personnel policies and practices and matters affecting working conditions. Similarly, such a unit would require the Agency to negotiate at a level removed from the local level wherein its present supervisory, and personnel and labor relations authority exists, and removed from any level of the Agency's organizational structure except that of the Secretary. Since half of the Agency's regions would be excluded from such a level of negotiations, and the alternative consolidated unit would consist of only approximately 3 per cent of the Agency's employees, the Authority concludes that effective dealings and efficiency of Agency operations would not be promoted by such a unit. Accordingly, the Authority finds that neither the proposed consolidated unit nor the alternative unit is appropriate, and will order that the instant consolidation petition be dismissed. ORDER IT IS HEREBY ORDERED that the petition in Assistant Secretary Case No. 22-09477(UC) be, and it hereby is, dismissed. Issued, Washington, D.C., January 19, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ At the hearing, the petition was amended to reflect the change in name of the Agency from Department of Health, Education and Welfare to Department of Health and Human Services. That name change was occasioned by a governmental reorganization which occurred subsequent to the filing of the petition. /2/ American Federation of Government Employees, AFL-CIO v. Haughton, Civil Action No. 81-0168 (D.D.C. June 24, 1981). /3/ Department of Health, Education and Welfare, Office of the Secretary, 3 FLRA 866 (1980). /4/ The petition herein was filed with the Assistant Secretary of Labor for Labor-Management Relations pursuant to section 6 of Executive Order 11491, as amended. As noted in the Authority's original decision, 3 FLRA 866 (1980), the functions of the Assistant Secretary of Labor for Labor-Management Relations were transferred to the Authority, and the Authority continues to be responsible for the performance of those functions as provided by section 7135(b) of the Federal Service Labor-Management Relations Statute (Statute). In conformity with section 902(b) of the Civil Service Reform Act of 1978 (5 U.S.C. 7101 et seq.), this case is governed solely by the provisions of E.O. 11491, as amended, and as if the Statute had not been enacted. /5/ Sec. 10. Exclusive recognition . . . . (b) A unit may be established on a plant or installation, craft, functional, or other basis which will ensure a clear and identifiable community of interest among the employees concerned and will promote effective dealings and efficiency of agency operations. A unit shall not be established solely on the basis of the extent to which employees in the proposed unit have organized . . . . /6/ Alternatively, AFGE would consolidate the six units it represents in five regions, thereby excluding the OS employees at headquarters and the Office of General Counsel employees at Baltimore. /7/ See 3 FLRA 866 at 869-871. /8/ Labor-Management Relations in the Federal Service (1975), at 35. /9/ See, e.g., Education Division, Department of Health, Education, and Welfare, Washington, D.C., A/SLMR No. 822, 6 FLRC 281 (Mar. 1, 1978). /10/ Veterans Administration, Washington, D.C., 1 FLRA 457 (1979).