13:0039(7)UC - HHS and NTEU -- 1983 FLRAdec RP

 13 FLRA No. 7
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES
 Agency
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Petitioner
 
                                            Case No. 3-UC-26
 
                            DECISION AND ORDER
 
    Upon a petition duly filed with the Federal Labor Relations Authority
 under section 7112(d) 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 contentions of the
 parties, the Authority finds:
 
    The Petitioner, National Treasury Employees Union (NTEU), filed the
 instant petition seeking to consolidate the five units within the
 Agency, Department of Health and Human Services (HHS), for which it is
 the exclusive representative.  /1/ The units presently represented by
 NTEU and covered by the petition are set forth in the Appendix.
 
    NTEU contends that the petition should be granted because, pursuant
 to the criteria set out in section 7112(a)(1) of the Statute, /2/ the
 employees in the existing units together possess a clear and
 identifiable community of interest since they share a common mission and
 job classifications and are subject to common labor relations policies
 and practices.  Further, it is argued that consolidation would promote
 effective dealings and efficiency of Agency operations by raising the
 level of collective bargaining to allow negotiations with the office of
 the Assistant Secretary for Personnel Administration (ASPER) which
 exercises real labor relations authority, and by eliminating redundant
 bargaining in the existing units.
 
    The Agency contends that the employees sought do not share a clear
 and identifiable community of interest, and that consolidation would be
 counterproductive both to effective dealings and efficiency of Agency
 operations.  The Agency contends also that the proposed unit is based
 solely on the extent to which the petitioning labor organization has
 organized, a consideration proscribed by section 7112(b) of the Statute;
  /3/ that the proposed unit would not ensure employees the fullest
 freedom in exercising the rights guaranteed by the Statute as required
 in section 7112(a)(1);  and that the proposed unit would not broaden the
 scope of bargaining or reduce fragmentation.
 
    HHS is administratively divided into several Principal Operating
 Components (POCs), each with its own mission and nationwide in scope.
 The POCs are the Social Security Administration (SSA);  Health Care
 Financing Administration (HCFA);  Public Health Service (PHS), which
 includes the Food and Drug Administration (FDA);  and Office of Human
 Development Services (OHDS).  Further, the Agency is administratively
 headed and serviced by the Office of the Secretary (OS), which includes
 the Offices of Civil Rights, General Counsel, Inspector General,
 Personnel, and Refugee Settlement.  Line management authority, including
 personnel management, has been delegated to the four POC heads who
 exercise their authority in the regions through POC regional officials.
 
    In addition to its administrative division along functional lines,
 HHS is divided geographically into a headquarters in Washington, D.C.,
 and ten regional offices which are further divided into field offices.
 Employees of each POC, and OS employees, are found in each regional
 office.  Personnel administration authority is delegated to the
 Principal Regional Officer (PRO) in each Region.
 
    At the time of the hearing, approximately 97,082 employees of the
 Agency were represented in some 147 certified bargaining units.  Ten of
 those units were designated as "regional office units" because each
 included employees of more than one POC within a specific region,
 although they did not necessarily include all eligible employees within
 a given region.  In the case of those ten regional office units, the PRO
 is authorized to represent all regional officials in negotiations.  In
 addition, there are two nation-wide units within SSA which have
 recognition at the level of the head of that POC.  Within the ten
 regions, there are no other units which cross POC lines.
 
    The five units which the Petitioner seeks to consolidate contain
 approximately 2,650 employees.  Four of the five, with approximately
 2,500 employees, are "regional office units" located in New York,
 Atlanta, Kansas City and Seattle.  The record discloses that none of
 these is region-wide in nature.  The fifth unit, with approximately 150
 employees, is located in the Kansas City Region and is the only Food and
 Drug Administration unit represented by NTEU.  /4/ The regional office
 units in New York, Atlanta, and Kansas City include both professional
 and nonprofessional employees, as does the FDA unit, while the regional
 office unit at Seattle is limited to nonprofessional employees.  The
 Atlanta and Kansas City units include FDA employees, but the New York
 and Seattle units exclude them.
 
    While employees in these five units share common job classifications,
 the employees sought do not share common supervision;  this is true even
 in the two units located in the Kansas City Region.  None of the units,
 including the two in the Kansas City Region, share a common location.
 
    Each Region has a "full service" personnel office.  As a result,
 day-to-day labor relations and collective bargaining authority rests at
 the regional level, subject to general guidelines set by ASPER for merit
 pay, performance appraisal systems and promotion plans.  For example,
 the regional personnel offices effectuate appointments, classifications,
 training, promotions and transfers.  Authority to determine
 reductions-in-force affecting more than five employees, classification
 appeals, and contract review is retained by ASPER.
 
    In Department of Transportation, Washington, D.C., 5 FLRA No. 89
 (1981), the Authority, in dismissing petitions to consolidate units,
 noted that section 7112(a)(1) of the Statute requires any unit found
 appropriate to conform to the three criteria established by that section
 and held that those criteria applied as well to unit consolidation
 proceedings pursuant to section 7112(d) of the Statute.  /5/
 
    With regard to the community of interest criterion set forth in
 section 7112(a)(1), the Authority will consider the degree of
 commonality and integration of the mission and function of the
 components involved;  the distribution of the employees involved
 throughout the organizational and geographical components of the agency;
  the degree of similarity of the occupational undertakings of the
 employees in the proposed unit;  and the locus and scope of the
 personnel and labor relations authority and functions.  Department of
 the Navy, U.S. Marine Corps, 8 FLRA No. 4 (1982).  Applying these
 principles to the instant case, the Authority concludes that the
 employees in the proposed consolidated unit do not share a clear and
 identifiable community of interest separate and distinct from other
 employees of the Agency.  Thus, the proposed unit would be limited to
 employees at only four of the Agency's ten regions.  While the proposed
 unit would cross POC lines and encompass employees in each of the four
 POCs, it would not include significant numbers of employees in any POC
 or any region.  Rather, the resulting unit would include only about
 2,650 of the Agency's more than 97,000 represented employees, and it
 would exclude employees in every POC and every region who also share
 common conditions of employment with those included.  Accordingly, the
 employees sought are not sufficiently well distributed throughout the
 administrative and geographic structure of the Agency so as to
 constitute a meaningful consolidated unit.  /6/ In addition, the record
 reveals that no transfers or interchange occur among the units that NTEU
 seeks to consolidate, and there is no common immediate or second-level
 supervision.  Finally, it appears that conditions of employment differ
 from region to region as a result of geographic dispersal and day-to-day
 control of personnel and labor relations at the regional level.
 
    Accordingly, the Authority finds that the proposed consolidated unit
 is not appropriate, and will order that the petition be dismissed.  /7/
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the petition in Case No. 3-UC-26 be, and it
 hereby is, dismissed.  Issued, Washington, D.C., September 15, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                APPENDIX - Units Sought to Be Consolidated
 
    Included:  All GS and WG professional and nonprofessional employees
 of the Department of Health, Education and Welfare, New York Regional
 Office, Region II.
 
    Excluded:  Confidential employees, employees engaged in Federal
 personnel work in other than a purely clerical capacity, management
 officials, and supervisors as defined in the Statute and employees of
 the Audit Agency.
 
    Included:  All GS and WG professional and nonprofessional employees
 of the Regional Office, Region IV, Department of Health, Education and
 Welfare, Atlanta, Georgia, including FDA District Offices.
 
    Excluded:  Management officials, supervisors, confidential employees,
 employees engaged in Federal personnel work in other than a purely
 clerical capacity, stay-in-school, temporary employees with appointments
 of 90 days or less, employees of the Audit Agency and Division of
 Personnel Security and employees of all other Field Offices, and the
 Regional and Field Offices of the SSA Office of Quality Assurance.
 
    Included:  All GS and WG professional and nonprofessional employees
 of the Department of Health, Education and Welfare, Region VII, in the
 greater Kansas City Metropolitan area.
 
    Excluded:  All employees of SSA Office of Central Operations, all
 employees of the SSA Office of Quality Assurance (Assessment) and the
 SSA Office of Security and Program Integrity (Assessment), all HEW Audit
 Agency employees, all employees of SSA Offices of Appeals, all employees
 of SSA Field Offices, and all employees of the Food and Drug
 Administration, employees engaged in Federal personnel work in other
 than a purely clerical capacity, temporary employees with an expected
 employment of 90 days or less, and confidential employees, management
 officials, and supervisors as defined in the Federal Service
 Labor-Management Relations Statute.
 
    Included:  All nonprofessional employees of the Regional Office of
 the Department of Health, Education and Welfare, Region X, Seattle,
 Washington.
 
    Excluded:  Professional employees, employees engaged in Federal
 personnel work in other than a purely clerical capacity, management
 officials, and supervisors as defined in the Act.
 
    Included:  All professional and nonprofessional General Schedule and
 Wage Grade employees employed by the Regional Office and Field a Offices
 of the U.S. Food and Drug Administration, Region VII, Kansas City,
 Missouri.
 
    Excluded:  Management officials, supervisors and employees described
 in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ All of these units were certified before the Department of
 Health, Education and Welfare became the Department of Health and Human
 Services.
 
 
    /2/ 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/ Section 7112(b) provides in pertinent part:
 
                                .  .  .  .
 
          (b) A unit shall not be determined to be appropriate under this
       section solely on the basis of the extent to which employees in
       the proposed unit have organized . . . .
 
 
    /4/ However, it is one of 18 units within FDA represented by a labor
 organization.  FDA employees are included within the Atlanta Regional
 Office unit.
 
 
    /5/ Section 7112(d) provides as follows:
 
          (d) Two or more units which are in an agency and for which a
       labor organization is the exclusive representative may, upon
       petition by the agency or labor organization, be consolidated with
       or without an election into a single larger unit if the Authority
       considers the larger unit to be appropriate.  The Authority shall
       certify the labor organization as the exclusive representative of
       the new larger unit.
 
 
    /6/ See Department of Defense, U.S. Army, Corps of Engineers, 5 FLRA
 No. 91 (1981).
 
 
    /7/ Inasmuch as all three criteria of section 7112(a)(1) of the
 Statute must be satisfied in order for the Authority to find that the
 proposed consolidated unit is appropriate, and a failure to satisfy any
 one of them must result in a finding that the unit sought is
 inappropriate, see U.S. Army Training and Doctrine Command, 11 FLRA No.
 28 (1983);  Department of the Navy, Navy Publications and Printing
 Service Branch Office, Vallejo, California, 10 FLRA No. 108 (1982);
 Department of Transportation, Washington, D.C., 5 FLRA No. 89 (1981),
 the Authority's finding that the unit sought herein fails to meet the
 community of interest criterion makes it unnecessary to address the
 other two criteria.