[ v15 p184 ]
The decision of the Authority follows:
15 FLRA No. 29 ENVIRONMENTAL PROTECTION AGENCY REGION VIII, DENVER, COLORADO Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3607, AFL-CIO Labor Organization/Petitioner Case No. 7-CU-20004 DECISION AND ORDER Upon a petition duly filed with the Authority under section 7111(b)(2) of the Federal Service Labor-Management Relations Statute (the Statute), a hearing was held before a hearing officer of the Authority. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon consideration of the entire record, including the parties' contentions, the Authority finds: Petitioner American Federation of Government Employees, AFL-CIO (AFGE) represents consolidated units of professional employees and nonprofessional employees of the Environmental Protection Agency (EPA). The professional unit encompasses all eligible professional employees of EPA at 1819 Pershing Road, Chicago, Illinois; in Region VIII; and in the Raleigh, Durham, Chapel Hill area of the National Environmental Research Center, Triangle Park, North Carolina. The unit of nonprofessional employees includes eligible nonprofessionals at EPA Headquarters; at Regions I, II, III, V, and VIII; and at certain other EPA locations and offices. AFGE Local 3607 represents the components of these consolidated units at Regional VIII in Denver, Colorado. The petition seeks to clarify whether the units at Region VIII, and therefore the consolidated units, should encompass the professional employees and nonprofessional employees who are employed within the Office of Regional Counsel in Denver. The petition was filed in connection with a reorganization of EPA's legal functions. As initiated in 1981 and implemented in 1982, the Agency's Enforcement Division, which was concerned with cases brought against polluting sources under environmental statutes, was abolished. At EPA headquarters, the Enforcement Division's legal functions were absorbed by a new Office of Legal and Enforcement Counsel (OLEC) headed by the Agency's General Counsel. The offices of the Enforcement Division in the EPA's ten Regions, which included "sections" and "branches," were also abolished. The attorneys and attorney support personnel who performed the Enforcement Division's legal work were all transferred from the Regional Offices to the Offices of Regional Counsel. Prior to these changes, the attorneys and attorney support personnel (including clericals and paralegals) in each Region's Enforcement Division were considered employees of the Regions. They reported to and were subject to the control and direction of office supervisors and managers who in turn were subject to the control and direction of the Regional Administrators. Separate Offices of Regional Counsel existed in each Region staffed by attorneys who served as counsel to the Regional Administrators. When transferred to the Offices of Regional Counsel, the former Enforcement Division attorneys and attorney support personnel reported to and were subject to the control and direction of the Regional Counsels, who were subject to the control and direction of the General Counsel in Washington, as head of the OLEC. They became employees of the OLEC in Washington with duty stations at their regional locations and were no longer considered employees of the Regions. These developments were implemented in stages at EPA during 1982. In January 1982, the offices of the Enforcement Division at Region VIII were abolished and the legal functions of the Division were absorbed by the Office of Regional Counsel. The attorneys and one paralegal who performed these functions were initially detailed to the Office of Regional Counsel. Other personnel of the Enforcement Division's offices were transferred to other offices of Region VIII. In or around June 1982, before the petition was filed, the legal personnel from Region VIII were formally transferred to the Office of Regional Counsel in Denver and formally became employees of the OLEC. The employees who were transferred to the Office of Regional Counsel in Denver had been part of the Petitioner's consolidated bargaining units when they were employees of the Regional Office in the Enforcement Division. The attorneys were in the professional unit and the paralegal was in the nonprofessional unit. Employees of the Office of Regional Counsel was not included in the units. /1/ The petition, which is opposed by the EPA, seeks to clarify the professional and nonprofessional units so as to include the eligible employees of the Office of the Regional Counsel in Denver. For the reasons indicated below, the Authority finds that when the attorneys and the paralegal were transferred to the Office of Regional Counsel and became employees of the OLEC, they ceased to be included in the units. No other attorneys or attorney support personnel remained employees of the Regional Office under the control and direction of its chief management official, the Regional Administrator. When the attorneys and the paralegal had been employees of the Enforcement Division, they were intermingled with other Region VIII employees. However, after the reorganization and their transfer to the OLEC and the Office of Regional Counsel, the Regional Counsel's enlarged staff (including the transferred employees) was consolidated into a contiguous area on the ninth floor of the Agency's office space in Denver separate and distinct from the Regional Office employees. From the time that the attorneys were detailed to the Office of Regional Counsel, the Regional Counsel and the succeeding Acting Regional Counsel integrated them into the office's work. While the attorneys continued to perform enforcement functions in particular "media" areas such as air pollution or the control of solid wastes, their work in the Office of Regional Counsel became diversified across media areas. They were also assigned tasks which had been performed by the Office of Regional Counsel before the reorganization, providing advice to the Regional Office on proposed regulations, reviewing state environmental programs, dealing with Indian affairs, and providing advice on personnel and labor-management relations matters. Their new duties do not comport with their Enforcement Division position descriptions and, accordingly, at the time of the hearing, new position descriptions were being prepared under the direction of the Acting Regional Counsel. The paralegal's transfer to the Office of Regional Counsel also involved a change in duties. Within the Enforcement Division, she worked on cases and performed legal research. In the Office of Regional Counsel, her duties are predominantly in the areas of docketing and case tracking. Her position description in the Enforcement Division is no longer accurate for her duties in the Office of Regional Counsel. For personnel and labor-management relations matters, the chief management official for these personnel when they were employed in the Enforcement Division was the Regional Administrator. Although the level of recognition for the consolidated units is at the national level, those parties have delegated substantial responsibilities to their respective local representatives for labor-management relations matters. Accordingly, the determination and administration of personnel policies, practices and matters affecting the working conditions of unit employees in Region VIII have remained within the discretion of the Regional Administrator. This discretion includes the authority to decide grievances under negotiated grievance procedures at the final step before arbitration. For the employees of the Office of Regional Counsel, the chief management official is the Regional Counsel, who has decision-making authority in matters such as adverse actions, discipline, the assignment of training, leave approvals, performance appraisals, position descriptions, promotions, incentive awards, travel orders and similar matters. While Region VIII's personnel office provides personnel assistance to the Office of Regional Counsel, this service is ministerial and technical in nature and analogous to services provided by a host organization to a tenant. In addition, whereas the Regional Administrator did have some administrative control over the budget of the Office of Regional Counsel before the reorganization, thereafter the Regional Counsels have been given separate budget authority. In the event of a reduction-in-force, there is no overlap between the competitive areas for the Regional Office employees and the employees of the Office of Regional Counsel in Denver. Based on the above, it has not been shown that the employees of the Office of Regional Counsel in Denver share a clear and identifiable community of interest with Region VIII's employees so that they should be included in Petitioner's units. As regards the administrative, organizational and budgetary separation of Region VIII and the Office of Regional Counsel, which predated and was reinforced by the reorganization, and in consideration of the previous separation of the Office of Regional Counsel from Petitioner's bargaining units, it also has not been shown that inclusion of employees of the Office of Regional Counsel in such units would promote effective dealings or efficiency of the Agency's operations. Accordingly, the petition, which seeks to accomplish that result, does not meet the criteria set forth in section 7112(a)(1) of the Statute /2/ and must be dismissed. ORDER IT IS ORDERED that the petition in case No. 7-CU-20004 be, and it hereby is, dismissed. Issued, Washington, D.C., June 27, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ At the beginning of the hearing, the parties stipulated that employees of the Office of Regional Counsel historically had not been considered as being part of either unit. Late in the hearing, the Petitioner contended that the stipulation was incorrect. The hearing officer permitted the Petitioner to proffer documentary support and testimony to this effect, but refused to amend the stipulation. Based on a review of the record in its entirety, the Authority concludes, consistent with the parties' stipulation, that the employees of the Regional Counsel's Office have never been included in either unit. /2/ Section 7112(a)(1) of the Statute 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.