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The decision of the Authority follows:
53 FLRA No. 101
FEDERAL LABOR RELATIONS AUTHORITY
PHOENIX AREA INDIAN HEALTH SERVICE
SACATON SERVICE UNIT
HU HU KAM MEMORIAL HOSPITAL
SOUTHWEST NATIVE AMERICAN HEALTH CARE EMPLOYEES
SOUTHWEST NATIVE AMERICAN HEALTH CARE EMPLOYEES
PHOENIX AREA INDIAN HEALTH SERVICE
SACATON SERVICE UNIT
HU HU KAM MEMORIAL HOSPITAL
January 28, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)
I. Statement of the Case
This case is before the Authority on the Labor Organization's (Union's) application for review under section 2422.17(c)(1) of the Authority's Regulations.(2) It presents a substantial question of law for which we have no precedent, whether employees assigned to special purpose Intergovernmental Personnel Act (IPA)(3) assignments remain "employed in an agency" within the meaning of section 7103(a)(2)(A) of the Federal Service Labor-Management Relations Statute (the Statute).
The Regional Director (RD) found that the individuals at issue were no longer employed in an agency once they were assigned to a hospital controlled by an Indian tribe and that, therefore, the bargaining unit of Hu Hu Kam Memorial Hospital (Hospital) employees was no longer appropriate.(4) The Activity(5) filed an opposition to the Union's application for review and the Union and the Activity filed supplemental briefs.(6) The Gila River Indian Community (Community) and Gila River Health Care Corporation (Corporation), as Amici, also filed a supplemental brief. The Union also submitted a Request for Administrative Notice that was unopposed.(7)
For the reasons that follow, we conclude that employees on special purpose IPA assignments are employed in the agency that has detailed them within the meaning of section 7103(a)(2)(A) of the Statute and that, in this case, the employees' collective bargaining unit continues to be an appropriate unit. In so finding, we acknowledge that the transfer of control over certain working conditions from the Agency to the Corporation limits the scope of bargaining available to the employees during their details. We dismiss the petition to clarify the unit in Case No. DE-CU-50069 and the RD is directed to take appropriate action in Case No. DE-CU-60001 to amend the certification of unit consistent with this decision.
II. Background and RD's Decision
The Indian Self-Determination and Education Assistance Act (the Self-Determination Act) permits Indian tribes to take over functions and services that had previously been performed by the Indian Health Service (IHS) and the Bureau of Indian Affairs (BIA) through a mechanism known as a self-determination contract or "638 contract." 25 U.S.C. § 450 et seq., Pub. L. No. 93-638, as amended (1988, 1990, 1994). Effective October 1, 1995, the Community entered into a 638 contract for the operation and administration of the Hospital and the Gila Crossing Clinic (Clinic).(8) The Community established the Corporation to administer health care in the two facilities.
Under a 638 contract an Indian tribe exercises control over a facility, such as a hospital, clinic, or school, for a period of 3 years. That period may be renewed for 2-year periods, and eventually may be extended indefinitely. However, a tribe has the option not to renew a 638 contract, at which time the facility reverts to the IHS or BIA for operation as an IHS hospital or clinic or a BIA school. IHS also continues to be responsible for ensuring that adequate health service and care are provided to the Indians and annually reviews the service provided by the tribe. If IHS determines that adequate service is not provided, IHS will resume control of the facility.
A tribe also has a choice of whom to hire to staff the Hospital, including the option to retain IHS employees. The statute governing the detail of employees from a Federal agency to a local government or Indian tribe is the IPA, 5 U.S.C. § 3373. Such employees are considered to be on special purpose IPA assignments.
In this case, the Corporation chose to retain most of the IHS employees working at the Hospital when the 638 contract was granted. Of the approximately 130 IHS employees working at the Hospital at that time, 110 employees were detailed on special purpose IPA assignments to continue working at the Hospital. The remaining 20 employees were separated under reduction-in-force procedures. The Sacaton Service Unit (SSU) Director, an IHS employee, was detailed through a special purpose IPA assignment to be the Chief Executive Officer of the Corporation. Her immediate subordinates and the Hospital supervisors are either IHS employees detailed to the Corporation on special purpose IPA assignments or members of the Public Health Service's uniformed Commissioned Corps who previously were assigned to the Hospital. In essence, the detailed employees remained in their positions under the same supervisors and managers.
The 110 employees remain detailed IHS employees, occupying their Federal positions of record, who are paid by IHS under the General Schedule pay system and are subject to Federal employee standards of conduct. Employees who had been on dues checkoff continue to have their Union dues withheld. Control over the following working conditions remains with the Agency: discipline, leave, retirement, health insurance, life insurance, promotion, quality step increases, cash awards, and within-grade increases. The following working conditions are subject to the discretion of the Corporation: work assignments, work location, workweek, hours of duty, leave conditions, performance expectations, dress code and holidays. The Corporation may terminate any employee's special purpose IPA agreement at will, at which time the employee returns to IHS for reassignment, or reduction-in-force if no position is available. Two changes in working conditions have been made by the Corporation--the employees' dress code has been relaxed and the day after Thanksgiving has been designated a holiday. After the Corporation took control of the Hospital and Clinic, it directly hired 13 other employees.
The RD concluded that as a result of the Community's decision to enter into the 638 contract, the Hospital had become a Tribal function. The RD also found that the employees, although on special purpose IPA assignments, are ultimately subject to the operational and managerial control of the Corporation.
The RD held that the employees did not remain in a bargaining unit during the period they were on assignment. The RD relied on Internal Revenue Service, 24 FLRA 999 (1986) (IRS), an unfair labor practice decision involving employees who were on IPA assignments to teach at educational institutions. Specifically, the RD relied on a statement in the Administrative Law Judge's decision affirmed by the Authority in IRS that employees were not "employed in an agency" within the meaning of section 7103(a)(2)(A) of the Statute while on IPA assignments. The RD also noted American Federation of Government Employees, National Council of Social Security Administration Field Operations Locals, AFL-CIO and Social Security Administration, Office of Field Operations, Baltimore, Maryland, 17 FLRA 11 (1985) (SSA), a negotiability decision in which the Authority held that a proposal that would apply to employees on detail outside the union's bargaining unit was not within the duty to bargain.
Based on IRS and SSA, the RD found that the detailed employees "cannot be found to share a community of interest with other IHS employees" and that the Union's "bargaining unit ceased to be an appropriate unit under section 7112(a)(1) of the Statute" on October 1, 1995, the date on which the 638 contract went into effect. RD's Decision at 24. The RD granted IHS' petition, which sought a determination that the bargaining unit was no longer appropriate, and dismissed the Union's petition, which sought a determination that the bargaining unit continued to be appropriate.
III. Employees on Special Purpose IPA Assignments Remain Employed in an Agency Within the Meaning of Section 7103(a)(2)(A) of the Statute
A. Positions of the Parties and the Amici
1. The Activity
The Activity contends that although employees on special purpose IPA assignments remain Federal employees pursuant to 5 U.S.C. § 3373, they do not continue as employees or individuals employed in an agency within the meaning of section 7103(a)(2)(A) of the Statute. The Activity relies on IRS to support its contention that employees on special purpose IPA assignments are not individuals employed in an agency and are not part of the Hospital's bargaining unit while on assignment.
The Activity asserts that the employees on special purpose IPA assignments are under the control of the Corporation, which sets non-statutory working conditions. According to the Activity, the Corporation is a private, non-profit corporation and not an executive agency under 5 U.S.C. § 105 and, consequently, falls outside of the coverage of the Statute.
2. The Union
The Union claims that this case arose as a result of implementation of "an IHS plan to achieve budget reduction targets through 'paper' reductions in permanent staff" by detailing the employees on special purpose IPA assignments to the Hospital. Union's Supplemental Brief at 1. The Union contends that the employees were not divested of fundamental rights under the Statute as a result of the 638 contract, and remain employees of IHS within the meaning of section 7103 of the Statute. Relying on 5 U.S.C. § 3373(a)(1), the Union asserts that the IPA mandates that an employee of a Federal agency assigned to a tribal organization is deemed during the assignment to be on a detail to a regular work assignment in his or her agency.
The Union also contends that the Activity has retained substantial control and influence over the employees' terms and conditions of employment within the meaning of section 7103. The Union asserts that the Activity's control over working conditions is mandated by the IPA and by IHS policies. The Union argues that certain conditions of employment remain under the exclusive control of IHS, including the following: (1) job duties; (2) pay; (3) incentive awards and promotions; (4) performance appraisals and periodic pay adjustments; (5) licensure and professional liability; (6) standards of conduct; and (7) grievances. Moreover, the Union argues that under IPA agreements, additional terms and conditions of employment are established, such as: (1) special pay conditions; (2) annual leave; (3) sick leave benefits; (4) maintenance of existing Federal benefits; and (5) the right to return to previous IHS positions upon cancellation of the special purpose IPA assignments.
The Union asserts that IHS maintains control over day-to-day management and supervision of the employees on special purpose IPA assignments. According to the Union, the IPA authorizes agencies to retain or share supervision of such employees by agreement. The Union claims that in this case IHS reached agreement to retain substantial management and supervisory authority over the employees by agreeing to transfer virtually the entire SSU personnel complement under IPA assignment as Federal employees.
3. The Amici
The Amici (the Community and the Corporation) argue that employees on special purpose IPA assignments are not "employed in an agency" within the meaning of section 7103(a)(2)(A) of the Statute, and that employees must be employed in an agency to be included in a bargaining unit. The Amici claim that neither the Community nor the Corporation falls within the definition of an agency subject to the Statute. The Amici contend that employees on special purpose IPA assignments are not employed in the Agency because they work for the Tribe's Corporation. The Amici also contend that because the employees are not subject to Federal supervision, they are not employees under 5 U.S.C. § 2105, which requires that an employee be under the supervision of someone appointed under the Civil Service.
According to the Amici, a "decision that even indirectly interposes the negotiations of [the Union] and [the Activity] into the day-to-day decisions and operations of the Community and Corporation would seriously infringe on the Community's inherent powers of self-government and the Corporation's rights under [the Self-Determination Act] to administer and manage the [Hospital] and Clinic." Amici Brief at 2. The Amici claim that under the Self-Determination Act, Congress intended to broadly empower tribal contractors to independently administer Indian programs and strictly limit Federal agencies to a minor supporting and monitoring role. The Amici assert that it would be counter to that intent to have the Union bargain with the Activity over conditions which no longer are under the Activity's control.
B. Analysis and Conclusions
Our determination of the collective bargaining rights under the Statute of employees on IPA details requires the concurrent interpretation of several statutory provisions. The central question of interpretation is whether IHS employees serving a detail to the Tribal Corporation under 5 U.S.C. § 3373 (the IPA) remain "employed in an agency" within the meaning of section 7103(a) of the Statute. With respect to the requirement of employment in an agency, we first address whether the Tribal Corporation falls within the definition of the term "agency" under the Statute. Finding that the Tribal Corporation is not an agency pursuant to the Statute, we next examine whether the detail status created under section 3373 is employment "in" IHS, such that section 7103(a) applies.
We conclude that the employees are "employed in" IHS. In so concluding, we reject the argument of the Amici that considering these individuals to be employees for purposes of the Statute is inconsistent with 5 U.S.C. § 2105 since that section provides that Federal employees may not be supervised by individuals who are not Federal employees, such as employees of the Tribal Corporation. Finally, we discuss the Authority case law that the RD relied on to reach a result contrary to our conclusion that these employees continue to be employed in an agency under the Statute.
2. The Employees Are Employed in an Agency Within the Meaning of Section 7103
a. Neither the Community Nor the Corporation Constitutes an Agency Under 5 U.S.C. § 105 and § 7103
Our initial inquiry is whether the employees on special purpose IPA assignments are employees within the meaning of section 7103(a)(2) of the Statute, which defines an "employee" as an individual "employed in an agency." (9) An "agency" is defined in section 7103(a)(3) of the Statute as "an Executive agency." An "Executive agency" is defined by 5 U.S.C. § 105, "[f]or the purpose of this title," as "an Executive department, a Government corporation, and an independent establishment." 5 U.S.C. § 104(1) defines an "independent establishment" as an "establishment in the executive branch . . . which is not an Executive department[.]" See The Kennedy Center for the Performing Arts, 45 FLRA 835, 836-38 (1992).
Neither the Community nor the Corporation constitutes an executive agency within the meaning of 5 U.S.C. § 105, and they are thus not subject to the Statute. The RD made an uncontested finding that the Community and the Corporation are, respectively, a Federally-recognized Indian Tribe and a Tribally-chartered Corporation. "Indian tribes are 'domestic dependent nations' that exercise inherent sovereign authority over their members and territories." Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509 (1991). This independent relationship is recognized in the Self-Determination Act, 25 U.S.C. § 450 et seq., a contracting law that reflects the government-to-government relationship between Indian tribes and the Federal government. See 25 U.S.C. § 450a.
Here, the Community and the Corporation have authority and control over the day-to-day operation of a Hospital that previously was an IHS or executive branch function. This control does not, however, transform these Tribal entities into executive branch agencies. Indian tribes and the entities they set up are not establishments "in the executive branch" within the meaning of 5 U.S.C. §§ 104-05; they are sovereign entities apart from the executive branch. No authority that contradicts this basic principle has been supplied by the parties. Because the Community and the Corporation do not fall within the definition of employing agencies covered by the Statute, the obligations of the Statute do not apply to them. They have no obligations under the Statute, it does not infringe on the Tribe's powers of self-government, as the amici have asserted.
b. IHS Constitutes an Agency and Detailed Employees Remain Employed in IHS
IHS is a component of the Department of Health and Human Services, which is an Executive Department, and thus, constitutes an agency within the meaning of section 7103(a)(3) of the Statute. See United States Government Manual 1997/1998, at 271-72. There is no dispute that the employees were "employed in an agency" within the meaning of section 7103(a)(2) of the Statute prior to the execution of the 638 contract. See Activity's Supplemental Brief at 3. The parties do dispute, however, whether the special purpose IPA assignments changed these individuals' status as employees employed in an agency.
The IPA provides in pertinent part:
(a) An employee of a Federal agency assigned to a State or local government under this subchapter is deemed, during the assignment, to be either--
(1) on detail to a regular work assignment in his agency; or
(2) on leave without pay from his position in the agency.
An employee assigned either on detail or on leave without pay remains an employee of his agency. . . . The supervision of the duties of an employee on detail may be governed by agreement between the Federal agency and the State or local government concerned.
5 U.S.C. § 3373 (emphases added).(10)
As these employees continue to be paid by IHS during the term of their special purpose IPA assignments, they fall within subsection (a)(1) as employees "deemed" to be "on detail to a regular work assignment in [their] agency" (emphasis added). (11) In addition, section 3373 makes it plain that an employee detailed on a special purpose IPA assignment "remains an employee of his agency."
The Activity's position is that, although the employees on special purpose IPA assignments remain employees of IHS, at least for certain purposes, they are not employees "in" IHS for purposes of section 7103(a). See Activity Supplemental Brief at 3. However, no basis is asserted or apparent to construe the terms in section 3373--"in his agency" and "of his agency"--to have a different meaning from that of the similar terminology in section 7103(a)(2) of the Statute, "in an agency". It is a "normal rule of statutory construction" that "identical words used in different parts of the same act are intended to have the same meaning." Commissioner of Internal Revenue v. Keystone Consolidated Industries, Inc., 508 U.S. 152, 159 (1993) (citations omitted). Although the statutory phrases at issue here are not absolutely identical and appear in different sections within Title 5 derived from different "acts", they are virtually the same and all serve as descriptions of an individual's status as an employee. There is no indication that a special definition was intended by Congress for any of these statutory phrases and no reason why virtually identical language defining employment status should not be construed consistently. The terms are given their ordinary meaning consistent with their plain wording. See National Treasury Employees Union v. FLRA, 691 F.2d 553, 561 n.80 (D.C. Cir. 1982). The plain wording of the Statute and the IPA--"in his agency" and "in an agency"--should be read consistently. Therefore, an employee who the IPA dictates is "in his agency" while on assignment should also be considered "in an agency" under section 7103(a) of the Statute.(12)
The Activity has not provided any reason that would permit the Authority to ignore the terms of the IPA and the Statute. Instead, the Activity's argument is that a shift in the day-to-day control of employees' working conditions from the Activity to the Corporation has eliminated the employees' status as employees under the Statute. As will be discussed further below, the shift in control over many working conditions to the Corporation, pursuant to the 638 contract, does have a significant impact on the collective bargaining rights of these employees. It does not follow, however, that these employees are deprived entirely of their status as employees in an agency under the Statute.
The Amici adopt the Activity's position and further argue that section 2105 requires a different result. The Amici contend that the employees on special purpose IPA assignments should not be considered employees under the Statute because they do not meet all of the requirements of the basic definition of "employee" set out at 5 U.S.C. § 2105.(13) Section 2105 provides the general definition of the term "employee" that is used throughout title 5 of the U.S. Code, except where "specifically modified." Section 2105(a)(3) requires that an "employee" be subject to the supervision of a person named in paragraph (1), that is, another Federal employee. The Amici argue that because the employees now report to Corporation managers, the requirement that they have a Federal supervisor is not met.
However, section 2105 provides that its definition of "employee" is subject to "specific modification" by other provisions of title 5. The IPA creates such a "modification" to the requirement that employees be subject to the supervision of another Federal employee. In particular, the IPA provides in 5 U.S.C. § 3373 that "[t]he supervision of the duties of an employee on detail may be governed by agreement between the Federal agency and the [tribe]." In keeping with the purpose of the IPA to permit employees to remain Federal employees while assigned to non-Federal entities, that statute contemplates that supervision will shift from the Federal employer.(14) Thus, the Amici's reliance on section 2105 alone, without consideration of this "modification" contained in section 3373, is misplaced.
In sum, the governing statutory provisions indicate that the employees on special purpose IPA assignments remain employed in an agency pursuant to section 7103(a)(2). As the employees at issue in this case were IHS employees prior to the special purpose IPA assignments, they continue to be IHS employees after those assignments. As such, their rights under the Statute are not foreclosed.
3. Authority Precedent on IPA Assignments Is Distinguishable
The RD relied on two prior Authority cases in support of her conclusion that these employees have lost their status as employees "employed in an agency" and therefore entitled to the coverage of the Statute. See IRS, 24 FLRA 999; SSA, 17 FLRA 11. These cases did not, however, directly address the question presented here, which is whether employees' statutory rights are extinguished when they are detailed to a position in which certain working conditions are not controlled by the activity designated as the employing agency. Rather, they addressed limitations on bargaining caused by employee details. As we will explain, these cases properly recognized that employee details may have an impact on the scope of employees' bargaining rights. This impact does not, however, justify the total elimination of detailed employees' statutory rights.
In IRS, the Authority found that the agency had committed an unfair labor practice when it failed to provide the union notice and an opportunity to bargain the impact and implementation of a program whereby individual employees took 3 to 9-month IPA assignments away from the workplace as instructors at colleges and universities. See IRS, 24 FLRA at 1000. In finding a violation, the Authority rejected the agency's argument that impact bargaining in this context would require it to bargain concerning employees in non-bargaining unit positions. The Authority held that the order to bargain extended only to the impact on the remaining employees, rather than the working conditions of employees on detail. In SSA, the Authority considered the negotiability of a proposal that employees retain all rights under the collective bargaining agreement while detailed to a position that was not in a unit for which the union was the exclusive representative. The union had not objected, however, to the agency's assertion that it did not have an obligation to negotiate concerning the conditions of employment of employees while they were detailed. The Authority concluded that the proposal at issue was not within management's duty to bargain, because it would have applied to employees or positions outside the bargaining unit. See SSA, 17 FLRA at 12.
We reaffirm the holdings of IRS and SSA that the duty to bargain extends only to the activity that is formally designated as the employing agency (the designated activity) and that the Statute does not provide a mechanism for bargaining over those conditions of employment of detailed employees that are outside the control of the designated activity. These conclusions comport with the well-established principles that the duty to bargain encompasses those working conditions within the control or influence of the employer, Library of Congress v. FLRA, 699 F.2d 1280, 1289-90 (D.C. Cir. 1983) (Library of Congress); and that, except under very limited circumstances, collective bargaining cannot directly determine the working conditions of non-unit employees. See U.S. Department of the Navy v. FLRA, 952 F.2d 1434, 1443 (D.C. Cir. 1992).
The IRS case also recognizes, however, that the designated activity retains its statutory obligations with respect to those conditions of employment that remain within its control despite the detail. In that case, the disputed conditions concerned the impact and implementation of the program and the Authority held that the activity continued to have an obligation to bargain over these conditions of employment. See IRS, 24 FLRA at 1000-01. Here, IHS remains the employer of these employees and it retains control over many of the conditions of employment of the detailed employees, such as discipline, leave, promotions, and awards. See section II, above. It is, therefore, obligated to bargain with the Union concerning these conditions of employment. The details of these employees do, however, place certain working conditions outside the control or influence of the activity and the statutory obligations do not extend to these working conditions.
We note that one aspect of the IRS decision, while not necessary to the holding of the case, is inconsistent with our analysis here. In that case, the Authority did not address the conclusions of the Administrative Law Judge, who stated that the agency was "probably correct" that "the Statute was not intended to apply to IRS employees while they are employed in [IPA assignments] to educational institutions . . . ." Id. at 1014 (emphasis in original). This tentative conclusion was not part of the Judge's or the Authority's reasons for holding that the Statute did extend to the subjects at issue in the case.
We decline to follow this dicta in the Judge's decision in IRS. It did not take into account the statutory basis for IPA appointments, discussed in part III.B.2.b. above, which defines these individuals as remaining employees of their agency. Further, the Judge was not presented with the full ramifications of his conclusion, as IRS did not concern the situation here, in which special purpose IPA assignments are asserted to eliminate the statutory rights of an entire bargaining unit.
In sum, the limitations on bargaining recognized in IRS and SSA are not inconsistent with our conclusion here that employees on special purpose IPA assignments remain "employed in" IHS and, thus, retain their rights under the Statute. The RD's decision regarding the status of employees on special purpose IPA assignments to the contrary is set aside.
IV. The Collective Bargaining Unit Is an Appropriate Unit
The Regional Director did not address whether the collective bargaining unit continues to be an appropriate unit if the employees are considered to be employed in IHS under the Statute. However, the record is sufficient for us to make that determination.
A. Positions of the Parties
1. The Activity
The Activity contends that the bargaining unit is no longer an appropriate unit. The Activity argues that the employees on special purpose IPA assignments are commingled with employees directly hired by the Community and no longer share a community of interest with other IHS employees. The Activity also asserts that the employees are geographically separated from other IHS employees.
2. The Union
The Union contends that although the conditions of employment of these employees have changed by virtue of their special purpose IPA assignments, they have retained an identifiable community of interest as Hospital employees with the same Federally-mandated and Federally-influenced terms and conditions of work. According to the Union, IHS exercises control or influence over significant elements of these employees' conditions of work. The Union argues, therefore, that the certified bargaining unit remains appropriate for exclusive representation by the Union in bargaining collectively with IHS over terms and conditions of work under the control or influence of IHS.
3. The Amici
The Amici "endorses [the Activity's] brief on the inappropriateness of the now defunct . . . bargaining unit." Amici Brief at 3. The Amici contend that "a decision to preserve the bargaining unit in this unique factual and legal situation (and thus impose unspecified collective bargaining obligations on the IHS) truly would result in 'make believe bargaining' and would do nothing to promote 'effective and efficient government.'" Id. at 10 n.3, quoting 5 U.S.C. § 7101(b).
B. Analysis and Conclusions
A unit is appropriate under section 7112(a) of the Statute if: (1) the employees at issue share a clear and identifiable community of interest; (2) the unit promotes effective dealings with the agency involved; and (3) the unit promotes efficiency of operations of the agency involved. 5 U.S.C. § 7112(a); United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 959 (1997) (FISC). Determinations as to each element are made on a case-by-case basis by balancing the relevant findings of fact set forth in the RD's decision and order. Id. at 960. Further, what is required under the Statute is an appropriate bargaining unit, not necessarily the only or most appropriate unit. See Department of the Navy, Naval Supply Center, Puget Sound, Bremerton, Washington, 53 FLRA 173, 183 n.9 (1997).
1. There Is a Community of Interest Among Employees in the Unit
In assessing community of interest, the Authority has not specified the particular factors or the number of factors needed to find a clear and identifiable community of interest. See FISC, 52 FLRA at 960; American Federation of Government Employees, Local 2004, 47 FLRA 969, 972 (1993). The Authority examines such factors as whether the employees in the unit are a part of the same organizational component of the agency; support the same mission; are subject to the same chain of command; have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same personnel office. Additional factors include: geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operational separation. See FISC, 52 FLRA at 960-61 and cases cited therein.
The actual day-to-day working conditions and "community of interest" of the Hospital employees remained substantially unchanged when the Community assumed control of the Hospital under the 638 contract. There is no argument or indication that the employees lacked a community of interest prior to the award of the contract. The shift in control over certain working conditions from the Activity to the Corporation did not change the fact that all members of the bargaining unit remain subject to identical, changed working conditions. While the terms of employment of the "community" as a whole may have changed, those changes affected each employee in the same way, and thus did not affect the similarity of these employees' interests.
The Activity argues that both the Hospital employees and the Clinic employees now work for the Corporation on special purpose IPA assignments, yet they are geographically separated by approximately 60 miles. Because the employees who share the same situation are separated, the Activity contends that there is no community of interest. However, the employees at the Clinic were not a part of the Hospital bargaining unit prior to the award of the 638 contract. There is no reason offered or evidence that indicates that the existence of this geographically distinct group of employees affects the community of interest of the employees on special purpose IPA assignments who are in the existing unit.(15)
The Activity also argues that the 13 employees the Corporation hired directly work side-by-side with the employees on special purpose IPA assignments and disrupt the existing employees' community of interest.(16) This situation is akin to many other workplaces where contract employees work among bargaining unit employees, or where employees hired under separate hiring authority work among bargaining unit employees. The Activity has not demonstrated how the presence of a few Corporation direct-hire employees working among the employees on special purpose IPA assignments has altered the community of interest among the unit employees. See Department of the Air Force, Detachment 4, Air Force Contract Management Division, Air Force Plant Representative Office, Pratt and Whitney Aircraft Group, West Palm Beach, Florida, 14 FLRA 166, 168 (1984) (unit found appropriate although the detachment commander had authority to establish and adjust employees' hours of work to comport with contractor work schedules).
Thus, these employees continue to share a community of interest.
2. Effective Dealings and Efficient Operations Continue to Exist Between the Unit and the Activity
The Activity contends that this bargaining unit interferes with the effective dealings with, and efficient operations of, the Activity. As the Activity addresses these two criteria as one issue, we address them together here.
The Activity argues that these criteria are not met because the Corporation controls the day-to-day operations of the Hospital, and the Activity has no power to interfere in the Corporation's operation of the Hospital.
Effective dealings and efficiency of operations must be examined in any case that raises appropriate unit issues. FISC, 52 FLRA at 962. The criterion of effective dealings pertains to the relationship between management and the exclusive representative selected by unit employees in an appropriate bargaining unit. In assessing this requirement the Authority examines such factors as: the past collective bargaining experience of the parties; the locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit; the limitations, if any, on the negotiation of matters of critical concern to employees in the proposed unit; and the level at which labor relations policy is set in the agency. Id.
The criterion of efficiency of agency operations concerns the benefits to be derived from a unit structure which bears some rational relationship to the operational and organizational structure of the agency. That is, a unit that bears a rational relationship to an agency's operational and organizational structure could result in economic savings and increased productivity to the agency. Consequently, factors to be examined in assessing efficiency of agency operations pertain to the effect of the proposed unit on agency operations in terms of cost, productivity and use of resources. Id. at 961-62.
The Amici assert that the "Model Contract" provided for in the Self-Determination Act preserves Tribal autonomy over the management and control of contracted programs and provides that the Tribe is responsible for managing the day-to-day operations conducted under the contract. Amici brief at 9, citing 25 U.S.C. § 4501(c). However, the Corporation's autonomy does not render "ineffective" or "inefficient" a relationship between the Union and IHS over those conditions of employment over which that agency retains control. We find that bargaining between the Agency and the Union over conditions of employment that remain within the Agency's control would, in no way, infringe on the Community's inherent powers of self-government and the Corporation's rights under the Self-Determination Act to administer and manage the Hospital.
The Activity's claims that these criteria are not met rest largely on its assumption that the collective bargaining relationship necessarily would include the autonomous Corporation as well as the Activity. As we have explained, however, our determination that these employees remain covered by the Statute does not extend their collective bargaining rights to encompass the Corporation.
The situation facing the employees on special purpose IPA assignments is analogous to the working relationship civilian technicians employed by the National Guard Bureau have with the military aspects of the National Guard, and to the limitations on medical staff of the Department of Veterans Affairs (VA) in dealing with facets of the medical profession under the exclusive jurisdiction of their agency. See New Jersey Air National Guard v. FLRA, 677 F.2d 276 (3d Cir. 1982), cert. denied, 459 U.S. 988; Colorado Nurses Association v. FLRA, 851 F.2d 1486, 1488 (D.C. Cir. 1988). The National Guard technicians and the VA medical staff serve under statutory schemes which place many working conditions that are typical subjects of the collective bargaining relationship under the exclusive discretion of the military authority or medical management, respectively. Nevertheless, both the National Guard and VA employees enjoy representation in bargaining units and negotiate over matters that are not precluded by the National Guard and VA statutes. The limitations on the areas over which they may negotiate does not foreclose a viable labor-management relationship.
Both National Guard and VA employees have found a wide variety of issues on which to bargain with their agencies. See, for example, National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024 (1997); Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island, 47 FLRA 743 (1993), reconsideration denied, 47 FLRA 1082 (1993). Similarly here, there are many issues that remain under the control and influence of IHS, providing the opportunity for meaningful bargaining between the Activity and the IHS employees detailed to the Corporation on special purpose IPA assignments. To be sure, most day-to-day matters are within the exclusive control of the Corporation during the duration of the special purpose IPA assignments. However, other matters remain within the control of IHS. Like the situations facing the National Guard and VA employees, there is no reason to foreclose negotiations because not every matter is within IHS' control.
Finally, in assessing the Activity's argument that the Corporation's role renders the bargaining unit inappropriate, we are mindful of the statutory dictate that appropriate unit determinations are intended to "ensure employees the fullest freedom in exercising the rights guaranteed under this chapter . . . ." 5 U.S.C. § 7112(a)(1). We have determined that these employees remain employees "in an agency" pursuant to section 7103(a)(2)(A). It would be inconsistent with section 7112(a)(1) for the Authority to make an appropriate unit determination that would effectively eliminate these employees' opportunity to exercise their rights.
We find that the bargaining unit continues to be an appropriate unit.
The petition to clarify the unit in Case No. DE-CU-50069 is dismissed, and the RD is directed to take appropriate action in Case No. DE-CU-60001 to amend the certification of unit consistent with this decision.
(If blank, the decision does not have footnotes.)
1. Member Cabaniss did not participate in this decision.
2. All references to the Authority's Regulations pertain to the Regulations in effect prior to March 15, 1996, as the petitions in this case were filed before that date. Accordingly, the revised regulations do not apply in this case. See Department of the Army, III Corps and Fort Hood, Fort Hood, Texas, 51 FLRA 934, 938 n.6 (1996).
3. Under the IPA, 5 U.S.C. § 3371, et seq., employees may be detailed to local governments, including Indian tribes, on special purpose assignments. The special purpose IPA assignments are provided for at 5 U.S.C. § 3373. See part VI.B.1.c.(ii) below.
4. In Case No. DE-CU-50069, the Activity sought a determination that the bargaining unit is no longer appropriate. In Case No. DE-CU-60001, the Union sought a determination that the bargaining unit continues to be appropriate. The bargaining unit consists of all professional and nonprofessional employees of the Sacaton Indian Health Service Unit, Sacaton, Arizona, excluding all supervisors, management officials, commissioned officers, temporary employees with an appointment of 90 days or less, and employees described in 5 U.S.C. § 7112(b)(2), (3), (4), (6), and (7).
5. In this case, the Activity is the Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Arizona. The Agency is the Department of Health and Human Services (HHS) and its component, the Indian Health Service (IHS).
6. In its application for review, the Union included a motion to consolidate this case with the following related cases: Phoenix Area Indian Health Service, Owyhee Service Unit, (Owyhee PHS Indian Hospital, and Elko Clinic), Owyhee, Nevada, Case Nos. 7-CU-60002/60004/60005 (Owyhee). However, the caption of that motion indicated that the Union filed the motion with the RD in the Owyhee cases, and did not intend to make the motion a part of its application in this case before the Authority. Accordingly, we have not consolidated these cases.
7. The Union requested that the Authority take administrative notice of (1) portions of the record of proceedings in the Owyhee cases and (2) official Activity action taken after the close of the record in this case, affecting bargaining unit employees. Section 2429.5 of the Authority's Regulations permits the Authority to take "official notice of such matters as would be proper." The material on which official notice is requested constitutes the record and transcript of related cases, and a unit description reprinted in an agreement. Therefore, consistent with Authority precedent, the Authority takes official notice of the requested materials. See U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 875, 878 (1990) (citing McLeod v. Immigration and Naturalization Service, 802 F.2d 89, 93 n.4 (3d Cir. 1986); and Dayco Corp. v. Federal Trade Commission, 362 F.2d 180, 186 (6th Cir. 1966)).
8. The Clinic is located approximately 60 miles from the Hospital. The Clinic employees were originally in a separate bargaining unit represented initially by the National Federation of Federal Employees, and subsequently by the Laborers International Union of North America. The clarification of unit petitions did not encompass the Clinic, and no amendment was made to include it. Accordingly, the RD did not address the Clinic in her determinations. See RD's Decision at 19 n.24.
9. Section 7103(a) provides, in pertinent part:
(a) For the purpose of this chapter--
. . . .
(2) "employee" means an individual--
(A) employed in an agency;
. . . .
(3) "agency" means an Executive agency (including a nonappropriated fund instrumentality described in section 2105(c) of this title and the Veterans' Canteen Service, Department of Veterans Affairs), the Library of Congress, and the Government Printing Office . . . .
10. For the purpose of operating these programs with employees on special purpose IPA assignments, an Indian tribe is considered a "local government." 5 U.S.C. § 3371(2)(C).
11. See RD's Decision at 10, 16-17, and 20 (RD determined that the employees are IHS employees detailed to the Corporation on special purpose IPA assignments).
12. There also is no asserted or apparent basis to construe the term "of his agency" in section 3373 as introducing a concept that is distinguishable from the term "in an agency" in section 7103(a) of the Statute. The use of a different term, "of his agency," in the penultimate sentence of section 3373 would appear necessary because subsection (1) used "in his agency" and subsection (2) used "from his position in the agency" (with respect to employees on LWOP). Thus, our reading of the provision leads us to construe "of" as a general confirmation that neither situation affects the individual's status as an employee.
13. 5 U.S.C. § 2105 provides in pertinent part:
(a) For the purpose of this title, "employee", except as otherwise provided by this section or when specifically modified, means an officer and an individual who is--
(1) appointed in the civil service by one of the following acting in an official capacity--
(A) the President;
. . . .
(D) an individual who is an employee under this section;
. . . .
(2) engaged in the performance of a Federal function under authority of law or an Executive act; and
(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.
. . . .
14. Section 3373 does not state what the outcome would be if an agency and a local government did not have an agreement for the supervision of employees on special purpose IPA assignments by local government personnel.
15. In its supplemental brief at 16, the Union also argues that the addition of the Clinic to the SSU as part of the 638 contract results in an accretion of the Clinic employees to the Hospital bargaining unit. The RD found that neither CU petition before her was amended to include the Clinic employees, who were in a different bargaining unit, and, therefore, the RD did not include the Clinic employees in her decision. See RD's Decision at 19 n.24. This issue was not raised in petitioner's application for review and is not properly before us.
16. The Activity asserts that the Corporation's direct-hire employees work under different work rules, pay schedules, job classifications, qualification requirements, lines of authority and employment jurisdiction. See Activity's Brief at 7.