11:0059(21)UC - HHS, Office of the Secretary and AFGE -- 1983 FLRAdec RP

 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).