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47:0247(17)AC - - HHS, Adm. for Children and Families, Washington, DC and NTEU - - 1993 FLRAdec AC - - v47 p247

[ v47 p247 ]
The decision of the Authority follows:

47 FLRA No. 17










(Labor Organization/Petitioner)




March 31, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority for review of the Regional Director's (RD) decision and order dismissing a petition for amendment of certification (AC) filed by the Petitioner. The Petitioner filed an application for review under section 2422.17(a) of the Authority's Rules and Regulations. The Activity did not file an opposition.

The Authority granted review in U.S. Department of Health and Human Services, Administration for Children and Families, Washington, D.C., 46 FLRA 1115 (1993) (ACF) on the following issue:

Whether the Petitioner may be certified as the exclusive representative of a bargaining unit of the Activity's employees without an election.

ACF, 46 FLRA at 1117. No supplemental briefs were filed pursuant to our order granting review. For the following reasons, we affirm the RD's dismissal of the petition.

II. Background and RD's Decision

On April 15, 1991, the Department of Health and Human Services created the Administration for Children and Families (ACF), as a principal operating division. ACF was composed of the employees and functions of the Family Support Administration (FSA) and the Office of Human Development Services (OHDS). Prior to the creation of ACF, OHDS was organizationally located in the Office of the Secretary (OS). Also prior to the creation of ACF, the Petitioner was the exclusive representative of FSA and OHDS employees in three separate bargaining units in the Washington, D.C. metropolitan area: (1) all eligible professional and nonprofessional FSA employees,(1) (2) all eligible professional OHDS/OS employees, and (3) all eligible nonprofessional OHDS/OS employees. Of the ACF employees, 304 were from FSA, and 294 were from OHDS.(2)

Following the reorganization, ACF bargained with the Petitioner "regarding the reorganization and the continuation of payroll dues deductions" for its employees. RD's Decision at 4. ACF and the Petitioner also signed a memorandum of understanding which provided that the provisions of the collective bargaining agreement between the Petitioner and FSA would be applied to ACF's employees. Subsequently, the Petitioner filed an AC petition in a unit described as follows:

INCLUDED: All professional and nonprofessional General Schedule and Wage Grade employees of the Administration for Children and Families, Department of Health and Human Services located in the Washington, D.C. metropolitan area.

EXCLUDED: All summer interns, summer aids, management officials, supervisors and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7) of the Federal Labor-Management Relations Statute.

Application for Review at 2.

Following a hearing, the RD issued a decision rejecting the Petitioner's argument that ACF is a successor employer of the FSA and that the OHDS employees who transferred to the Activity accreted to the FSA unit. In reaching this decision, the RD applied Department of Energy, Western Area Power Administration, 3 FLRA 77 (1980) (WAPA), which establishes three criteria for determining whether a gaining employer is a successor. The RD concluded that ACF did not meet the first requirement that the recognized unit be transferred substantially intact to the gaining employer. The RD found that although all the FSA employees were transferred to ACF, "approximately 50 percent of the work force at ACF consisted of employees transferred from OHDS many of whom perform job functions within ACF not previously performed at FSA." RD's Decision at 5.

The RD concluded that ACF is "a new organizational entity" rather than a successor employer to "the bargaining relationship" between FSA and the Petitioner. Id. The RD concluded that a bargaining unit of employees in ACF may be established "only by the filing of a petition or petitions for an election or elections in accordance with section 7111(b)(1)(A) of the Statute." Id. at 6. Noting that an AC petition is not a petition for an election, the RD found the petition was "inappropriate" to establish the Petitioner's representative status, and he dismissed it.(3) Id.

III. Petitioner's Position

The Petitioner argues that WAPA was "decided on the basis of Executive Order 11491[]" and, consequently, that there is a "distinct lack" of Authority precedent concerning "when, as a result of a reorganization, a newly created agency can be considered a successor." Application for Review at 9. The Petitioner also asserts that there is no guidance from the Authority on how a successor standard should be applied in "the unique circumstances" in this case. Id. at 4.

The Petitioner argues that the RD erred in failing to consider the successorship issue "within the context of examining whether a question concerning representation truly exists." Id. at 8. Noting that it represented all affected employees in separate bargaining units prior to the reorganization, the Petitioner asserts that the reorganization did not raise a question concerning representation (QCR), within the meaning of section 7111(b) of the Statute. The Petitioner asserts that the Authority should "certify the petitioned-for bargaining unit" because it is appropriate under section 7112(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute). Id. The Petitioner also argues that the Authority should find that: (1) ACF is the successor to FSA because it "inherited the FSA bargaining unit in its entirety," and (2) OHDS employees "accreted to the ACF unit." Id. at 10, 13 (emphasis in original).

IV. Analysis and Conclusions

For the following reasons, we affirm the RD's decision dismissing the petition.

At the outset, we note that a petition to amend certification (AC) is appropriate when either party seeks to have the original certification conform to changes which have occurred affecting the identity of either party, such as a change in the name of the agency or the exclusive representative. It is "not designed to test the appropriateness of the unit represented" by a labor organization. General Counsel's Representation Case Handling Manual, section 209.011. See, for example, Florida National Guard, St. Augustine, Florida, 34 FLRA 223 (1990); Personnel Support Activity Naval Submarine Base New London, Groton, Connecticut, 15 FLRA 552, 555 (1984). Here, it is clear that the formation of ACF involved more than a change in the name of the activity. Accordingly, we find, in agreement with the RD, that an AC petition is inappropriate to establish that the Petitioner represents ACF employees.

We reject the Petitioner's argument that WAPA is not Authority precedent because it "was decided under Executive Order 11491." Application for Review at 9. Although WAPA was filed under Executive Order 11491, it was decided by the Authority and, under section 7135 of the Statute, remains in full force and effect until it is revised or superseded by later Authority decisions.(4)

We also reject the Petitioner's argument that the RD misapplied WAPA. WAPA sets forth three criteria that must be met if a successor relationship is to be found. First, the recognized unit must be transferred "substantially intact to the gaining employer." 3 FLRA at 79. Second, the appropriateness of the unit must remain unimpaired. Third, a QCR may not be timely raised as to the status of the incumbent union. Id.

With regard to the first requirement, the RD found, and it is undisputed, that in addition to the FSA bargaining unit, OHDS employees were transferred to ACF. Put simply, ACF is composed of the FSA bargaining unit and a portion of the OHDS/OS bargaining units. Further, it is undisputed that the functions of FSA and OHDS were merged to create ACF. In this regard, ACF includes the Offices of Family Assistance, Child Support Enforcement, Refugee Resettlement, and Community Services, which were formerly in FSA and the administrations for Children, Youth and Families, Developmental Disabilities, and Native Americans, which were formerly in OHDS. Indeed, the Petitioner notes that "[t]he mission statement for ACF is . . . a compilation of the mission statements for the various offices of FSA and OHDS." Application for Review at 6. It is clear, and the RD found, that ACF includes programs which were not part of FSA.

In addition, it is undisputed that the staff offices of FSA and OHDS were consolidated as a result of the reorganization. The RD noted, in this regard, that "the Office of Policy and Evaluation in ACF was created by combining the functions and staff of the Office of Program Evaluation from FSA and the Office of Policy, Planning and Legislation from OHDS[.]" RD's Decision at 3. In sum, the RD concluded, and the record supports, that "ACF is, in effect, a new organizational entity which includes employees . . . who have been combined and integrated in the functioning and operations of the ACF." Id. at 5. Accordingly, there is no basis on which to conclude that the RD misapplied WAPA in finding that ACF does not constitute a bargaining unit that was transferred substantially intact and, therefore, that ACF is not a successor to FSA.

We also reject the Petitioner's request that the Authority certify the petitioned-for unit because it is appropriate. First, we note that under section 7112(a)(1), of the Statute the Authority must determine the appropriateness of any unit. No such determination has been made concerning the Petitioner's proposed unit, which is a new organization composed of the FSA bargaining unit and portions of the OHDS/OS bargaining units. Further, as discussed above, an assertion that a new organizational entity is an appropriate bargaining unit is not properly raised in an AC petition.

Second, even assuming that ACF employees constitute an appropriate bargaining unit, section 7111(a) of the Statute requires that the Petitioner be selected as the employees' representative in "a secret ballot election" in order to be certified as their exclusive representative.(5) This requirement became effective under Executive Order 11491 and remains unchanged under the Statute. See 1 A/SLMR 606 (1970) ("Executive Order 11491 requires, effective January 1, 1970, that exclusive recognition can be accorded a labor organization only after a secret ballot election has been conducted."). Although the Petitioner represented employees now in ACF when those employees were in the FSA and OHDS/OS bargaining units, ACF constitutes a completely new entity and the Petitioner has not been chosen to represent ACF employees in a secret ballot election.

With respect to the latter point, we reject as misplaced the Petitioner's argument that it should be certified as the exclusive representative of the employees in an ACF unit because it previously represented all the ACF employees in separate bargaining units and ACF has not objected to its continued representation of these employees. This argument is relevant where an agency challenges the continued majority status of an exclusive representative in an existing appropriate bargaining unit. Indeed, there is a presumption that employees continue to support an exclusive representative, absent sufficient evidence to the contrary. For example, Overseas Private Investment Corporation, 36 FLRA 480, 485-86 (1990). In the case now before us, however, the employees the Petitioner seeks to represent are in an entirely new organization, which has not been determined to be an appropriate unit, and, as discussed above, the Petitioner has not been chosen as the exclusive representative of these employees in a secret ballot election.

Finally, we note the Petitioner's request that we consider its AC petition "as a CU [clarification of unit] petition, or as a joint AC/CU petition." Application for Review at 2 (footnote omitted). However, even if we were to do so, we would be unable to certify the Union as exclusive representative of the petitioned-for unit. As noted in Cherry Point, an RD may decide, pursuant to the filing of a CU petition, that a bargaining unit has accreted to another established bargaining unit. Id., 45 FLRA at 286. In this case, however, ACF is a new organization and not the successor to FSA. Because the FSA unit no longer exists, and because there has been no finding that ACF constitutes an appropriate unit, there is no basis in this case to apply the accretion doctrine.

V. Order

The petition is dismissed.

(If blank, the decision does not have footnotes.)

1. We note that, under section 7112(b)(5) of the Statute, professional employees may not be included in a unit with nonprofessional employees unless a majority of the professional employees votes for inclusion. See Defense Mapping Agency, Inter-American Geodetic Survey, 5 FLRA 610, 613-14 (1981).

2. After the reorganization, 718 employees remained in the former OHDS/OS nonprofessional bargaining unit and 238 in the professional unit. The record does not reveal whether the Petitioner filed any petitions concerning these units.

3. The RD also concluded that a petition for clarification of unit would be inappropriate "since it also is not a petition for an election . . . ." RD's Decision at 6 n.2.

4. Section 7135(b) provides, in relevant part, that:

Policies, regulations, and procedures established under and decisions issued under Executive Orders 11491, . . . shall remain in full force and effect until revised or revoked by the President, or unless superseded by specific provisions of this chapter or by regulations or decisions issued pursuant to this chapter.

5. Section 7111(a) provides:

An agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit who cast valid ballots in the election.