[ v12 p309 ]
The decision of the Authority follows:
12 FLRA No. 68 IMMIGRATION AND NATURALIZATION SERVICE Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Petitioner Case No. 3-RO-89 DECISION AND DIRECTION OF ELECTION 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 in this case, including the parties' contentions, the Authority finds: The Petitioner, American Federation of Government Employees, AFL-CIO (AFGE), seeks an election in a nationwide unit of all non-supervisory professional employees of the Immigration and Naturalization Service (INS), excluding special inquiry officers. /1/ INS contends that the petitioned for unit is not appropriate because it does not meet the criteria set forth in section 7112(a)(1) of the Statute. /2/ More specifically, INS contends that the employees sought do not share a community of interest separate and distinct from other attorneys of the Department of Justice, and that such unit would not promote effective dealings with, or efficiency of the operations of, the agency involved. INS is one of several Bureaus within the Department of Justice. Under a Commissioner, who reports to the Attorney General, it is primarily responsible for administering and enforcing the provisions of the Immigration and Naturalization Act of 1952, as amended (the Act). /3/ Structurally, INS is composed of a Central Office, located in Washington, D.C.; 4 Regional Offices-- Northern, Eastern, Western, Southern-- ; and 35 District Offices. /4/ Each of the Regional Offices is headed by a Regional Commissioner, who reports directly to the Commissioner of INS. Each District Office is managed by a District Director who reports directly to the Regional Commissioner in charge of that District. The Central Office has Enforcement, Examinations, Management, and Operations Support offices, each headed by an Associate Commissioner. In addition, the Central Office has an Office of the General Counsel. The petitioned-for unit consists primarily of attorneys, but also includes accountants, economists, statisticians, architects and engineers. There are approximately 240 employees in the unit sought, of whom approximately 200 are attorneys. Attorney and non-attorney professionals are located in the Central and Regional Offices whereas only attorneys are assigned to the District Offices. AFGE exclusively represents a nationwide unit of all (approximately 5300) non-professional INS employees, as well as a unit of all (approximately 2000) non-professional employees assigned to Border Patrol Sectors, service-wide. Additionally, as previously noted (supra n.1), the special inquiry officers are exclusively represented in a separate professional unit. Thus, the petitioned-for unit comprises all of the potentially eligible employees within INS who are not already included in existing units of exclusive recognition. The non-attorney professionals are in the competitive service and are, for the most part, employed in the Central Office. Attorney professionals are in the excepted service and are, for the most part, employed in the District Offices. The non-attorney professionals render support services in the area of their expertise. For example, accountants, who constitute the major segment of this group, perform financial, accounting and bookkeeping functions in the Central and Regional Offices. Attorneys are classified either as Trial Attorneys or General Attorneys. The principal duty of a Trial Attorney is the preparation and presentation of deportation and exclusion cases before an Immigration Judge. The principal duties of a General Attorney include preliminary examinations of individuals petitioning for naturalization and the trial of naturalization cases before Federal and State Courts. Under a consolidation program established by the Department of Justice in July 1980 in order to assure as much as possible that INS attorneys are hired, classified, evaluated, promoted and disciplined under standards essentially similar to those applicable to all other attorneys in the Department of Justice, certain personnel functions relating to these attorneys are reviewed and approved by the Associate Deputy Attorney General (ADAG) in the Department of Justice. Thus, the program requires that all attorneys hired by INS and the position descriptions of all INS attorneys must be approved by the ADAG; all appeals on grievances concerning performance evaluation must come to the ADAG; and all recommendations for discipline in excess of 14 days must be approved by the ADAG. However, the record also establishes that INS' recommendations for hiring attorneys have never been disapproved; that the position descriptions for attorneys are certified by the classifiers in the Central Office; that the general personnel functions for attorneys are handled by the Central Office in the same manner as for non-attorney professionals; that the day-to-day direction of attorneys is accomplished within INS' line-of-command authority; that labor relations functions for attorneys, as well as for non-attorney professionals, are handled by the Central Office; and that personnel policies and general working conditions are basically the same for all INS professionals. Based on the foregoing, the Authority concludes that the petitioned-for unit is appropriate. Thus, as noted above, all professional employees are engaged in a common mission; are under the supervision and direction of the Commissioner of INS; and are covered by generally uniform personnel policies and practices, as well as common labor relations policies. Under these circumstances, the Authority concludes that the employees in the petitioned-for unit share a clear and identifiable community of interest. Further, the Authority concludes that a unit of all professional employees within the INS will promote effective dealings and efficiency of agency operations noting particularly that the record reflects a substantial degree of centralization of personnel functions relating to the employees in the unit sought. Accordingly, the Authority finds the following unit to be appropriate for the purpose of exclusive recognition within the meaning of the Statute. All professional employees of the Immigration and Naturalization Service, excluding special inquiry officers, non-professional employees, management officials, supervisors, employees engaged in Federal personnel work in other than a purely clerical capacity, employees engaged in administering the Statute, employees engaged in intelligence or other security work directly affecting national security, and employees engaged in investigation or audit functions related to the internal security of the Activity, as described in section 7112(b)(2), (3), (4), (6) and (7) of the Federal Service Labor-Management Relations Statute. DIRECTION OF ELECTION An election by secret ballot shall be conducted among employees in the unit described above as soon as feasible. The appropriate Regional Director shall supervise or conduct the election, as appropriate, subject to the Authority's Rules and Regulations. Eligible to vote are those in the voting group who were employed during the payroll period immediately preceding the date below, including employees who did not work during that period because they were out ill, on vacation or on furlough, including those in the military service who appear in person at the polls. Ineligible to vote are employees who have quit or were discharged for cause since the designated payroll period and who have not been rehired or reinstated before the election date. Those eligible shall vote on whether or not they desire to be represented for the purpose of exclusive recognition by the American Federation of Government Employees, AFL-CIO. Issued, Washington, D.C., July 14, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Special inquiry officers or "Immigration Judges" have been exclusively represented by the National Association of U.S. Immigration Judges in a separate certified unit since May 1979. /2/ Section 7112(a)(1) provides: Sec. 7112. Determination of appropriate units for labor organization representation. (a)(1) The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of, the agency involved. /3/ 8 U.S.C. 1101, et seq. /4/ In addition, there are 24 Border Patrol Sectors under the Regional Offices. However, there are no professional employees assigned to any Border Patrol Sector.