[ v23 p464 ]
The decision of the Authority follows:
23 FLRA No. 67 Case No. 3-CU-40017 UNITED STATES DEPARTMENT OF LABOR Activity/Petitioner and NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Labor Organization Case No. 3-CU-40018 LABOR MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR Activity/Petitioner and NATIONAL UNION OF COMPLIANCE OFFICERS, INDEPENDENT Labor Organization Case No. 3-CU-40019 UNITED STATES DEPARTMENT OF LABOR Activity/Petitioner and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO Labor Organization DECISION AND ORDER I. Statement of the Case This consolidated case is before the Authority as a result of our order granting the applications for review of the Regional Director's Decision and Order on Petitions for Clarification of Unit filed by the United States Department of Labor (DOL) and the National Union of Compliance Officers, Independent (NUCO), and NUCO's request for a stay in the above-named cases. In his Decision, the Regional Director dismissed the petitions in Case Nos. 3-CU-40017 and 3-CU-40019 on the basis that the DOL 1984 reorganization which occurred had no effect on the employees involved, but granted the petition in Case No. 3-CU-40018 so as to exclude certain employees from the established unit pursuant to section 7112(b)(4) of the Statute /1/ because they are engaged in administering provisions contained in section 7120 of the Statute concerning the standards of conduct for labor organizations. DOL and NUCO contended that their applications for review should be granted on the grounds that the Regional Director either departed from Authority precedent or in the absence of Authority precedent made erroneous factual determinations on substantial issues which prejudicially affected their rights. The Authority granted these applications for review on the basis that it appeared that a compelling reason existed pursuant to the provisions of section 2422.17(c)(1) of the Authority's Rules and Regulations. /2/ Supplementary briefs were filed by DOL, NUCO and American Federation of Government Employees, Local 12, AFL-CIO (AFGE). The three Clarification of Unit (CU) petitions under consideration arise out of DOL's 1984 reorganization in which the Labor Management Services Administration (LMSA) was abolished and concern the effects of that reorganization on the bargaining unit of LMSA employees represented by NUCO. The Authority finds, contrary to the Regional Director, that the Office of Pension and Welfare Benefit Programs (OPWBP) employees were severed from and no longer share a community of interest with the other employees in the NUCO unit and should be excluded therefrom. The Authority further finds contrary to the Regional Director that pursuant to section 7135(a)(1) of the Statute, the previous unit represented by NUCO which now includes only Office of Labor-Management Standards (OLMS) employees continues to exist. II. Background A. Previous Recognitions In 1962, AFGE was recognized as the exclusive representative of the DOL employees in the Washington, D.C. Metropolitan area; and in 1965, the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO (NCFLL) was recognized as the exclusive representative of all eligible field employees of the DOL outside the Washington, D.C. Metropolitan area. NUCO came into existence in the early 1970's to represent employees of LMSA who otherwise could not have been represented because of the restrictions contained in section 3(d) of Executive Order 11491. /3/ NUCO was certified on October 18, 1972 as the exclusive representative of the field employees of LMSA. B. Reorganization and Change Prior to the January 1984 DOL reorganization, LMSA administered the OPWBP and Office of Labor Management Standards Enforcement (OLMSE) programs, designated as the PW and LM tracks, respectively, through a field organization of Regional, District and Resident offices. LMSA investigators were assigned to either the PW or LM tracks. On January 20, 1984, the Secretary of Labor issued an Order separating the OPWBP or Employee Retirement Income Security Act (ERISA) program from LMSA, making OPWBP an independent activity (under the same name) which reports directly to the Secretary. Thereafter, to complete the reorganization, the Secretary on May 3, 1984, issued an Order which formally abolished LMSA, and established the OLMS with its own Assistant Secretary to replace OLMSE. As a result of the reorganization, the PW field employees were incorporated into the OPWBP field organization and the remaining LM field employees were incorporated into the OLMS field organization. While all employees of OPWBP and OLMS at both the headquarters and the field levels continued to be located in the same place, the record indicates the work processes of the two components were not integrated and that their employees did not interchange. The effects of the reorganization were: to remove OPWBP from LMSA and make it a separate independent activity; to abolish LMSA; and to incorporate the remaining residual LM employees of LMSA into OLMS. As a result of the reorganization, the pension program and PW investigators were transferred intact to the new independent activity. The primary job function of PW investigators, which was unchanged by the reorganization, is to investigate allegations of fiduciary breaches of title I of ERISA and certain sections of title 18 of the United States Code. Thirty percent of the fiduciaries they investigate are union officials, including some from federal sector unions, thirty percent of their cases involve Taft-Hartley or joint plans, and five to seven percent involve union plans. Following the reorganization, the LM investigators of the OLMS continue to be responsible, as before, for the investigation of several types of cases arising under the Labor-Management Reporting and Disclosure Act (LMRDA), including election cases, compliance audit cases and embezzlement cases. They are also responsible for investigation of all standards of conduct cases filed pursuant to section 7120 of the Statute. III. Regional Director's Determination The Regional Director in his Decision and Order on Petitions for Clarification of Unit found in Case Nos. 3-CU-40017 and 3-CU-40019 that despite the reorganization which abolished LMSA and split employees within the PW and LM tracks into two separate independent activities, the field and headquarters employees of the OPWBP currently represented by NUCO did not accrete into the units represented by NCFLL and AFGE, but rather continued to be included in the pre-reorganization unit represented by NUCO. He based his findings on the following factors: (1) the record evidence revealed that the reorganization had little or no effect on employees' day-to-day work, their overall working conditions or their immediate supervision; (2) there was no evidence provided by the Activity to demonstrate that these employees' accretion into either the NCFLL or AFGE bargaining units would necessarily promote effective dealings and efficiency of agency operations; and (3) there is a long history of effective collective bargaining between LMSA and NUCO, and DOL has not changed its handling of personnel or labor relations matters for OPWBP investigators. /4/ In Case No. 3-CU-40018 the Regional Director found that the OLMS investigators currently represented by NUCO should be excluded from that unit pursuant to section 7112(b)(4) of the Statute because the OLMS investigators are engaged in administering section 7120 of the Statute (standards of conduct for labor organizations) which, according to section 7112(b)(4) of the Statute, requires their exclusion from the NUCO unit or any other appropriate unit of employees under the Statute. The Regional Director rejected NUCO's argument that section 7135(a)(1) of the Statute /5/ allowed the continuation of the unit of OLMS investigators. He found that section 7135(a)(1) permitted continuation only until the issue was raised, at which point the preexisting unit would be evaluated to ascertain whether continued recognition was consistent with the Statute. As he found that section 7112(b)(4) of the Statute precluded OLMS investigators from being included in a unit because they administer provisions of the Statute, he ordered them excluded from the NUCO unit. IV. Parties' Positions DOL contends with regard to Case Nos. 3-CU-40017 and 3-CU-40019 that the employees in OPWBP do not administer any provision of law relating to labor-management relations within the meaning of section 7112(c) of the Statute, /6/ and therefore should be included in the DOL's bargaining units represented by NCFLL and AFGE. NUCO argues that as no real change was brought about by the reorganization and the employees of OPWBP are precluded from inclusion in units with other employees pursuant to section 7112(c) of the Statute, the employees of OPWBP should continue as a viable unit represented by NUCO. AFGE objects to the consideration of any unit accretion issue raised by the DOL on the basis that, at the time of the hearing, personnel aspects of the reorganization creating the new OPWBP activity had not as yet been implemented. In Case No. 3-CU-40018, DOL agrees with the Regional Director that the OLMS investigators should be excluded from the NUCO unit pursuant to section 7112(b)(4) of the Statute as they administer provisions of the Statute. NUCO contends that the Regional Director erred in ignoring the express provisions of the "grandfather clause" in section 7135(a)(1) of the Statute. While NUCO concedes that the OLMS investigators administer section 7120 of the Statute, it argues that section 7135(a)(1) was intended to protect representational relationships established before the effective date of the Statute, and that if section 7112(b)(4) is allowed to vitiate established units which predate the Statute, the intent of section 7135(a)(1) to protect such units would not be effectuated. AFGE agrees with NUCO concerning section 7135(a)(1) of the Statute. V. Analysis The Regional Director's Decision with respect to the employees of the OPWBP assumes that the DOL reorganization had only a minimal effect on the OPWBP employees and NUCO's bargaining relationship. Based on established precedent and the particular circumstances of the case, the Authority disagrees with this assumption. We find that the employees of OPWBP no longer share a community of interest with the other employees in the existing unit represented by NUCO. We note particularly that the OPWBP employees are now part of a new separate activity; are under separate supervision and authority; and have little or no contact, interchange or transfer with the other employees represented by NUCO. We find that as a result of their removal from LMSA, the OPWBP employees constitute a functionally distinct group of employees who no longer share a community of interest with the employees of the existing NUCO unit. Accordingly, the Authority will order that NUCO's certification be clarified to exclude the OPWBP employees. See United States Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 11 FLRA 591 (1983); Department of Defense, Department of the Army, Lexington-Blue Grass Depot Activity, Lexington, Kentucky, 8 FLRA 699 (1982); and Department of the Treasury, Bureau of the Mint, 7 FLRA 136 (1981). As to DOL's contention in Case Nos. 3-CU-40017 and 3-CU-40019 that the OPWBP field and headquarters employees who had been represented by NUCO in the pre-reorganization LMSA unit accreted into units represented by NCFLL and AFGE, the Authority concludes that the OPWBP investigators administer statutes relating to labor-management relations within the meaning of section 7112(c) of the Statute and therefore cannot be represented by NCFLL or AFGE. The OPWBP investigators investigate allegations of fiduciary breaches of title I of ERISA, and a considerable portion of their work involves review of joint labor-management administered plans established pursuant to the Labor-Management Relations Act, 29 U.S.C. Section 186(c). Approximately thirty percent of OPWBP investigations concern union officials, including some from federal sector unions. For these reasons, we find that the OPWBP investigators administer statutes relating to labor-management relations within the meaning of section 7112(c) of the Statute and thus cannot be included in units represented by NCFLL or AFGE. In Case No. 4-CU-40018 the Regional Director found that section 7112(b)(4) of the Statute precluded the OLMS investigators from remaining in the established unit. He interpreted section 7135(a)(1) to permit the continuation of an existing unit only until an issue was raised as to its continuance. Based on the legislative history of section 7135(a)(1) and precedent, the Authority disagrees. The legislative history of the Statute indicates the intent of section 7135(a)(1) as follows: This subsection reflects the intention that successful on-going labor-management relationships shall not be disputed by enactment of title VII. Since the purpose of this title is principally to encourage the development of successful labor-management programs, it would have been inappropriate for this new legislation, designed to encourage collective bargaining, to operate in such a way as to thwart successful collective bargaining programs already in existence. . . . /7/ To this end, consistent with section 7135(a)(1), we have required an activity to continue to recognize units that were appropriate under Executive Order 11491, as amended, where we found that a reorganization did not substantially change the character and scope of the existing units. Federal Aviation Administration, Aviation Standards National Field Office, 15 FLRA 60 at 64 (1984). In our view, the exclusion of OPWBP employees as a result of the reorganization did not substantially change the scope and character of the unit historically represented by NUCO, which now consists of all OLMS employees. Thus, with the removal of the OPWBP function and personnel and the subsequent abolishment of LMSA, the remaining former LMSA employees were transferred intact into the OLMS which was established to handle the function previously handled by OLMSE under LMSA. OLMS, with minor changes in the field structure, continues to function as did OLMSE prior to the reorganization of LMSA, and the Assistant Secretary of Labor for OLMS occupies the position vacated by the Assistant Secretary of Labor for LMSA. /8/ In sum, we find in Case No. 3-CU-40018, pursuant to section 7135(a)(1), that NUCO continues to represent a viable unit of former LMSA employees certified in 1972 which currently includes only OLMS employees. Accordingly, the DOL must continue to recognize and bargain with NUCO as the exclusive representative of the remaining unit now entitled OLMS. VI. Conclusion Based upon the findings above, we will order that the Clarification of Unit (CU) petitions filed by DOL in Case Nos. 3-CU-40017 and 3-CU-40019 seeking to accrete the OPWBP field and headquarters employees who had been represented by NUCO in the pre-reorganization LMSA unit into units represented by NCFLL and AFGE be dismissed. Further, we will order that NUCO's certification be clarified to exclude the OPWBP employees. We will also order that the petition filed by DOL in Case No. 3-CU-40018 be dismissed, as we have found that the remaining unit of OLMS employees represented by NUCO continues to be a viable unit. /9/ ORDER IT IS HEREBY ORDERED that the unit of employees at the United States Department of Labor sought to be clarified, for which the National Union of Compliance Officers, Independent, was certified as exclusive representative on October 18, 1972, be, and it hereby is, clarified by excluding from said unit the employees in the Office of Pension and Welfare Benefit Programs. IT IS FURTHER ORDERED that the petitions in Case Nos. 3-CU-40017, and 3-CU-40019 in all other aspects, and the petition in Case No. 3-CU-40018 be, and they hereby are, dismissed. Issued, Washington, D.C., September 26, 1986. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member /s/ Jean McKee Jean McKee FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7112(b)(4) of the Statute provides: Section 7112. Determination of appropriate units for Labor organization representation . . . . . . . (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, nor shall a unit be determined to be appropriate if it includes -- . . . . . . . (4) an employee engaged in administering the provisions of this chapter(.) (2) Section 2422.17(c)(1) provides: Section 2422.17. Application for review of a Decision and Order of the Regional Director. (c) The Authority may grant an application for review only where it appears that compelling reasons exist therefor. Accordingly, an application for review may be granted only upon one or more of the following grounds: (1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, Authority precedent(.) (3) Section 3(d) of Executive Order 11491 provided that: Employees engaged in administering a labor management relations law or this Order shall not be represented by a labor organization which also represents other groups of employees under the law or this Order, or which is affiliated directly or indirectly with an organization which represents such a group of employees. (4) Additionally, the Regional Director found in Case No. 3-CU-40019 that several employees in the Office of the Solicitor, Labor-Management Laws Division, the Elections and Trusteeships and Technical Assistance and Education Branches of the Technical Assistance and Disclosure Section of OLMS were not engaged in administering the Statute within the meaning of section 7112(b)(4). On this basis, he concluded that they should remain in the unit represented by AFGE and dismissed that part of the petition. No application for review was filed with respect to the Regional Director's finding that these employees should remain in the unit represented by AFGE. The action has become final and is not at issue. (5) Section 7135(a)(1) of the Statute provides: Section 7135. Continuation of existing laws, recognitions, agreements, and procedures (a) Nothing contained in this chapter shall preclude -- (1) the renewal or continuation of an exclusive recognition, certification of an exclusive representative, or a lawful agreement between an agency and an exclusive representative of its employees, which is entered into before the effective date of this chapter(.) (6) Section 7112(c) of the Statute provides: Section 7112. Determination of appropriate units for labor organization representation . . . . . . . (c) Any employee who is engaged in administering any provision of law relating to labor-management relations may not be represented by a labor organization -- (1) which represents the other individuals to whom such provision applies; or (2) which is affiliated directly or indirectly with an organization which represents other individuals to whom such provision applies. (7) 124 Cong. Rec. 29, 188 (1978). (8) While we recognize that section 7112(b)(4) of the Statute now requires the exclusion of employees who administer "the provisions of this chapter" from any unit determined to be appropriate under the Statute, in this case we are merely determining that a unit previously determined to be appropriate under Executive Order 11491, as amended, has not been rendered inappropriate by virtue of the reorganization and therefore remains viable by operation of section 7135(a)(1) of the Statute. In our view, this conclusion is materially different from a determination that such a unit would be appropriate under the Statute if a petition to represent a new unit of OLMS employees had been filed. The latter question is not before us in this case. (9) In view of our decision, the Authority finds it unnecessary to pass upon the Motions for Clarification of Stay Order filed by the Regional Director and NUCO.