49:1375(123)CU - - HHS, Navajo Area Indian Health Service. Shiprock Service Unit, Shiprock, NM and NAGE, Local R14-146 and Indian Health Service, DZILTH-NA-O-DITH-HLE, PHS Indian Health Center, Bloomfield, NM - - 1994 FLRAdec RP - - v49 p1375
[ v49 p1375 ]
The decision of the Authority follows:
49 FLRA No. 123
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF HEALTH AND HUMAN SERVICES
NAVAJO AREA INDIAN HEALTH SERVICE
SHIPROCK SERVICE UNIT
SHIPROCK, NEW MEXICO
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
INDIAN HEALTH SERVICE
PHS INDIAN HEALTH CENTER
BLOOMFIELD, NEW MEXICO
NAVAJO NATION HEALTH CARE EMPLOYEES
LOCAL 1376, L.I.U.N.A.
ORDER DENYING APPLICATION FOR REVIEW
June 15, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for review filed by the Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Acting Regional Director's (ARD's) Decision and Order on Petition for Clarification of Unit and Petition for Certification of Representative, which dismissed the Activity's clarification of unit (CU) petition in Case No. DA-CU-30056 and directed an election in a unit of all professional General Schedule and non-professional Wage Grade and General Schedule employees of Dzilth-Na-O-Dith-Hle PHS Indian Health Center (DZ Health Center) in Case No. DA-RO-30054. The Laborers' International Union of North America (LIUNA) filed an untimely opposition to the Activity's application for review, which has not been considered in this decision.
For the following reasons, we deny the application for review.
II. Background and ARD's Decision
On March 28, 1988, the National Association of Government Employees, Local R14-146 (NAGE) was certified as the exclusive representative for the following unit:
Included: All Wage Grade and General Schedule employees; all temporary, part-time and intermittent employees (both professional and non-professional) who are employed for more than 90 days; and all professional employees employed by the U.S. Public Health Service, Indian Health Service Hospital, Shiprock, New Mexico, including those employees working at the Teecnospos Clinic, Arizona.
Excluded: All supervisors; management officials; temporary, part-time and intermittent employees (both professional and non-professional) who are employed for 90 days or less; employees of the Dzilth-Na-O-Dith-HLE Center, New Mexico; and any employees described in 5 U.S.C. [§] 7112(b)(2)(3)(4)(6) and (7).
ARD's decision at 2.
The Activity and NAGE specifically excluded the DZ Health Center employees from the unit in a pre-election consent agreement approved by the Regional Director in 1988 based upon the Navajo Nation's declaration of its intent to take over the operations of the facility. The Navajo Nation subsequently decided not to pursue its plan to operate the DZ Health Center. NAGE has made no attempt to include the DZ Health Center employees in the bargaining unit described above since the Navajo Nation made this decision.
In Case No. DA-RO-30054, LIUNA seeks an election to determine the exclusive representative for the DZ Health Center employees.(1) In Case No. DA-CU-30056, the Activity seeks to have the NAGE's certified bargaining unit clarified to include the employees of the DZ Health Center. LIUNA did not intervene in that case.
The Activity contended before the ARD that the loss of the Navajo Nation's involvement created "a significant change in the status of job circumstances" of the DZ Health Center employees since their exclusion from the NAGE unit in 1988 and that this change justified their inclusion in the NAGE unit. ARD's decision at 2. The Activity also contended that the DZ Health Center employees share a community of interest with the employees in the NAGE unit and that a unit including both the Indian Health Service Hospital, Shiprock Service Unit (Shiprock Service Unit) and the DZ Health Center would be more conducive to productive Activity operations. The Activity argued that a separate unit at the DZ Health Center would not be appropriate because such a unit would cause fragmentation, which would lead to inefficiency of operations.(2)
LIUNA contended that the Activity's petition should be dismissed because it raised a question concerning representation that could not be resolved in a CU petition. LIUNA argued that because the DZ Health Center employees were specifically excluded from the unit that chose NAGE as its representative, the DZ Health Center employees should not be "summarily accreted to the existing unit" without allowing those employees the right to determine their exclusive representative. Id. at 3. LIUNA also claimed that the petitioned-for unit of DZ Health Center employees is appropriate because: (1) the DZ Health Center employees share a community of interest that is separate from that of the Shiprock Service Unit; (2) the DZ Health Center's mission is functionally distinct from that of the Shiprock Service Unit; (3) the DZ Health Center has its own health board and its own administrator to manage disciplinary matters, leave, and day-to-day operations; and (4) the DZ Health Center is geographically removed from the Shiprock Service Unit. LIUNA also disagreed with the Activity's claim that a separate unit would result in inefficiency of operations.
The ARD examined the relationship between the two facilities. She found that the DZ Health Center is financially independent of the Shiprock Service Unit once its budget is established, although authorization must be obtained from the Shiprock Service Unit director for major expenditures. With regard to personnel, she found that the Shiprock Service Unit manages recruitment, placement, staffing, orientation, training and development, and classification matters, but that the DZ Health Center administrator is primarily responsible for the day-to-day operations, disciplinary actions, and leave matters concerning the DZ Health Center. She noted that although the Shiprock Service Unit director has final authority over most personnel issues, the recommendations of the DZ Health Center administrator regarding performance awards are usually automatically approved. She found that the interaction between the Shiprock Service Unit and the DZ Health Center consists mainly of telephonic questions relating to patient care, the same type of communication that exists between the DZ Health Center and other facilities that have treated DZ Health Center patients. She further found that there was no regular interchange of employees between the DZ Health Center, which has approximately 45 employees, and the Shiprock Service Unit, with approximately 430 employees.
The ARD also found that: (1) the DZ Health Center is self-contained and geographically separate from the Shiprock Service Unit; (2) the two facilities have different hours of operation and service; and (3) the Shiprock Service Unit and the DZ Health Center share a common mission and have similar positions and classifications, although the Shiprock Service Unit has employees in a number of positions not present at the DZ Health Center.
The ARD concluded that the record reflected that "the DZ Medical Center is included in the organizational jurisdiction of the Shiprock Service Unit." ARD's decision at 7. However, referring to the factual situation in Defense Logistics Agency, Defense Contract Administration Services Region Cleveland, Defense Contract Administration Services Plant Representative Office, Goodyear Aerospace, Akron, Ohio, 15 FLRA 962 (1984) (DLA), the ARD determined that "the DZ Health Center is organizationally independent in that it functions without specific and regular contact regarding operational matters with the Shiprock Service Unit[,]" and that although the employees in both facilities share an overall common mission, the DZ Health Center employees have "a separate work interest from the Shiprock Service Unit . . . ." ARD's decision at 7.
The ARD stated that the Authority has consistently determined whether the accretion of employees to an existing bargaining unit is appropriate by applying the criteria regarding the appropriateness of a bargaining unit set forth in section 7112(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute). Specifically, the ARD noted that the Authority examines the totality of the circumstances in each case to determine whether the unit will ensure a clear and identifiable community of interest among the employees in the unit and whether the unit will promote effective dealings with, and efficiency of the operations of, the agency involved.
The ARD concluded that the application of Authority precedent to this case results in a determination that a unit of DZ Health Center employees is an appropriate unit. In this regard, the ARD cited, among other decisions, DLA, Department of the Air Force, 6th Missile Warning Squadron, Otis Air Force Base, Massachusetts, 3 FLRA 112 (1980) (Otis AFB) and U.S. Department of Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Chicago, Illinois, 48 FLRA 620 (1993) (DOJ). The ARD stated that "[a]lthough the DZ Health Center employees are within the overall jurisdiction of the Shiprock Service Unit, the employees perform in a geographically separate facility a specific function for a certain area and this work is not interrelated with that of the Shiprock Service Unit." ARD's decision at 9. In this regard, the ARD noted that communication between the two facilities is limited to patient care and technical assistance. Moreover, the ARD concluded that even though the DZ Health Center is governed by policies and procedures that also control the Shiprock Service Unit, the DZ Health Center administrator is responsible for day-to-day operations, performs the final review of most performance appraisals, and his recommendations on other matters are "highly considered" by the Shiprock Service Unit director. Id.
Further, the ARD determined that because the Shiprock Service Unit personnel office and other management officials already must differentiate among the Shiprock Service Unit employees, the commissioned corps, and the DZ Health Center employees with regard to labor relations, the establishment of a unit at the DZ Health Center with a separate collective bargaining agreement would not result in inefficiency of operations or ineffective dealings between the Shiprock Service Unit and the DZ Health Center. Accordingly, the ARD concluded that employees of the DZ Health Center constitute an appropriate unit.
The ARD further determined, however, in accord with Otis AFB, that the existing Shiprock Service Unit also would continue to be appropriate with the addition of the DZ Health Center unit employees because the two facilities share an overall mission with similar positions and duties, and, therefore, the employees have a community of interest in this respect.
Turning specifically to the Activity's CU petition, the ARD explained that once there has been a decision that a unit is appropriate, the Authority must determine whether a CU petition should nullify the results of a voluntary pre-election agreement entered into by the parties and approved by the Regional Director. In this regard, the ARD cited Federal Trade Commission, 15 FLRA 247 (1984)), in which the Authority held that where the parties have reached a pre-election agreement to exclude employees or established positions from a certified unit, those employees or positions cannot later be included in the unit pursuant to a CU petition absent a showing that the duties or functions of the positions or job classifications covered by that agreement have undergone meaningful change since the unit was certified. The ARD also cited for this proposition U.S. Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 111 (1991); and U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, Allen Park, Michigan, 43 FLRA 264 (1991) (VA, Allen Park). The ARD found, in this case, no evidence that there had been any meaningful changes in the duties or functions of the positions. In addition, the ARD found that there was no evidence that either NAGE or the Activity had monitored the progress of the Navajo Nation's request or had taken any actions concerning the representation of the DZ Health Center employees. Accordingly, having concluded that the DZ Health Center constituted a separate appropriate unit, the ARD determined that the Activity's petition for clarification of unit should be dismissed because it involved a question concerning representation.
The ARD noted that, under Otis AFB, either a combined unit or a separate DZ Health Center unit would be appropriate.(3) However, because NAGE had not intervened in LIUNA's representation petition, the ARD concluded that the DZ Health Center employees would not be given the opportunity to vote for separate representation by NAGE or to be added to NAGE's existing Shiprock Service Unit.(4)
Accordingly, the ARD determined that the following unit was appropriate for the purpose of exclusive recognition under section 7112 of the Statute and directed an election among the employees in such unit:
Included: All professional General Schedule and non-professional Wage Grade and General Schedule employees of DZILTH-NA-O-DITH-HLE PHS Indian Health Center.
Excluded: All temporary and intermittent employees working less than 90 days, all commissioned officers, supervisors, and management employees described in 5 USC [§] 7112(b)(2), (3), (4), (6), and (7).
ARD's decision at 11.
III. Application for Review
The Activity contends that the ARD's decision is a departure from Authority precedent. The Activity asserts that the ARD's decision is not consistent with Authority decisions concerning either the appropriate use of a CU petition or the determination of an appropriate unit for the purpose of exclusive recognition.
With regard to the dismissal of the CU petition, the Activity notes that the Authority held in Federal Trade Commission, 35 FLRA 576 (1990) (FTC II), that a CU petition would not be an appropriate means for including in a unit employees who had been excluded from the original certification "in the absence of a demonstration that meaningful changes [sic] occurred in the job duties or functions and/or job circumstances of the affected employees[.]" Application at 1, quoting 35 FLRA at 584 (Emphasis added by Activity). The Activity contends that the ARD acknowledged its contention that there had been "a significant change in the status of job circumstances" of the DZ Health Center employees, but had not determined whether the Activity had supported its argument. Id. at 1-2. The Activity argues that the Navajo Nation's decision not to pursue its attempt to take over the operation of the DZ Health Center constituted such a change in job circumstances, and that the ARD erred in considering only whether there had been changes in the employees' duties or functions.
Next, the Activity contends that the cases cited by the ARD in support of her unit determinations presented significantly different factual backgrounds than those in this case. The Activity argues that the ARD erred in finding that the DZ Health Center constitutes a separate appropriate unit.
The Activity asserts that a unit consisting of employees of the DZ Health Center fails to meet "at least two" of the three criteria for an appropriate unit required under Authority case law. Id. at 4. Specifically, the Activity claims that the efficiency of the Activity's operations would be negatively affected by the creation of a separate unit at the DZ Health Center because that unit would require the Shiprock Service Unit, which the Activity claims now services three different personnel systems, to establish a fourth personnel system. The Activity argues that a unit "must promote effective dealings with and the efficiency of operations of an agency." Id. at 4-5 (Emphasis in original). The Activity claims that the ARD concluded only that a unit at the DZ Health Center would not result in inefficiency of operations or ineffective dealings between the Shiprock Service Unit and the DZ Health Center. Such a determination by the ARD, the Activity contends, does not meet the criteria established by the Authority.
In support of its position, the Activity cites a number of Authority decisions that it believes are more relevant than those relied on by the ARD. For example, the Activity cites National Treasury Employees Union, Chapter 243, 39 FLRA 96 (1991) (NTEU) in support of its position that a small unit, such as the one involved in this case, is not an appropriate unit even if it is geographically separate from the existing unit. The Activity notes that the Authority in NTEU sustained the regional director's determination that the establishment of a separate bargaining unit on the basis of geographic separation alone would result in the fragmentation of an integrated administrative component of the agency, and would, therefore, not promote effective dealings or the efficiency of agency operations.
IV. Analysis and Conclusions
We conclude, for the reasons set forth below, that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review. Specifically, we conclude that the ARD did not depart from Authority precedent by dismissing the petition in Case No. DA-CU-30056 or by directing an election among employees in the unit of DZ Health Center employees found appropriate in Case No. DA-RO-30054.
A. Accretion Not Appropriate
The Activity contends that there has been a meaningful change in the DZ Health Center employees' job circumstances and that, therefore, the ARD erred in determining that the Activity's petition raised a question concerning representation that may not be resolved in a CU petition. We disagree. We conclude, in agreement with the ARD, that the Navajo Nation's decision not to pursue its attempt to assume the operation of the DZ Health Center does not constitute a meaningful change that permits the accretion of the DZ Health Center employees to the NAGE unit. The change on which the Activity relies is merely the failure of an anticipated change to occur. Thus, both the Activity and NAGE mistakenly believed that the Navajo Nation would take over the operation of the DZ Health Center. As the ARD noted, in FTC II the Authority adopted the National Labor Relations Board's approach to representation petitions seeking to clarify a unit to include employees who had been excluded by pre-election agreement from the original unit. See The Washington Post Company, 256 NLRB 1243 (1981); see also Mount Sinai Hospital, 233 NLRB 507 (1977). The Authority found that in such situations those employees "could not be included appropriately in an existing unit pursuant to a CU petition[.]" FTC II, 35 FLRA at 585. We see no basis on which to conclude that the realization that the Navajo Nation would not operate the DZ Health Center constitutes the type of change in the employees' "job circumstances" that was contemplated by FTC II. Id. at 584. There is no evidence that the circumstances in which those employees work has undergone any change whatsoever. Accordingly, the Activity has not shown that the ARD's decision raises a substantial question of law or policy because it departs from Authority precedent. In our view, the Activity's application expresses mere disagreement with the ARD's findings of fact and application of Authority precedent and, as such, provides no basis for granting review of the ARD's decision. For example, VA, Allen Park, 43 FLRA at 266.
B. A Unit of DZ Health Center Employees Is Appropriate
The Authority has not specified individual factors or the number of factors necessary to establish a community of interest. Rather, the Authority requires examination of the factors presented on a case-by-case basis. See DOJ, 48 FLRA at 633-34. Our review shows that the ARD properly determined, based on Authority precedent, that the unit proposed in Case No. DA-RO-30054 is appropriate under section 7112(a)(1) of the Statute.
We agree with the ARD that numerous factors support the appropriateness of the proposed unit of DZ Health Center employees, including the following: (1) there is no regular interchange of employees between the DZ Health Center and the Shiprock Service Unit; (2) the DZ Health Center employees perform their work in a self-contained and geographically separate facility with its own well-defined mission; (3) the DZ Health Center is organizationally independen