15:0184(29)CU - EPA Region VIII, Denver, CO and AFGE and AFGE Local 3607 -- 1984 FLRAdec RP

 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.