16:0297(45)RO - Antitrust Division, Justice and NTEU; Civil Rights Division, Justice and NTEU -- 1984 FLRAdec RP
[ v16 p297 ]
16:0297(45)RO
The decision of the Authority follows:
16 FLRA No. 45
ANTITRUST DIVISION
DEPARTMENT OF JUSTICE
Activity
and
NATIONAL TREASURY EMPLOYEES UNION
Petitioner
Case No. 3-RO-20013
CIVIL RIGHTS DIVISION
DEPARTMENT OF JUSTICE
Activity
and
NATIONAL TREASURY EMPLOYEES UNION
Petitioner
Case No. 3-RO-30006
DECISION AND ORDER
Upon petitions duly filed with the Federal Labor Relations Authority
under section 7111(b)(1) of the Federal Service Labor-Management
Relations Statute (the Statute), a hearing was held before a hearing
officer of the Authority. The Authority has reviewed the hearing
officer's rulings made at the hearing and finds that they are free from
prejudicial error. The rulings are hereby affirmed.
Upon the entire record in these cases, /1/ including the parties'
contentions, the Authority finds: In Case No. 3-RO-20013 the
Petitioner, National Treasury Employees Union (NTEU), seeks an election
in a nationwide unit of all nonsupervisory professional employees of the
Antitrust Division, Department of Justice (DOJ), excluding all
nonprofessional employees, management officials, supervisors, and
employees described in section 7112(b)(2), (3), (4), (6) and (7) of the
Statute. In Case No. 3-RO-30006, the same Union has filed a petition
seeking an election in a unit of all non-supervisory professional
employees (attorneys) of the Civil Rights Division of DOJ. DOJ contends
in each case that the petitioned for unit is inappropriate because it
does not meet the criteria set forth in section 7112(a)(1) of the
Statute. /2/ Essentially, DOJ contends that the attorneys sought to be
included in the respective units herein do not share a community of
interest separate and distinct from all other DOJ attorneys nationwide,
and that the proposed units would not promote effective dealings with,
or efficiency of the operations of, the Department.
The Department of Justice is organized into 6 bureaus, as well as 15
offices, 3 boards and 7 divisions referred to collectively as "OBDs." It
is headed by the Attorney General of the United States who has delegated
to the Deputy Attorney General authority to manage the Department. The
OBDs, which include the six legal divisions within DOJ, including as
pertinent here, the Antitrust and Civil Rights Divisions, are each
treated as an entity equivalent to a bureau for administrative purposes.
Each division is headed by an Assistant Attorney General.
The mission of DOJ is, among other things, to provide legal
representation for the United States in court and to advise the
Executive agencies. This mission is performed by the attorneys within
the OBDs, who are essentially litigation attorneys. Due to the nature
of the mission that they perform, these attorneys engage in numerous
contacts with each other on a regular basis. In this respect, to make
them as functionally interchangeable as possible, all DOJ attorneys are
in the excepted service and are temporarily detailed from four to six
months to receive common training at the Advocacy Institute within the
U.S. Attorney's Office. Moreover, with the exception of those in the
U.S. Attorney's Office, all DOJ attorneys in the OBDs share a common job
series and pay scales.
Personnel policy for all DOJ attorneys within the OBDs is centralized
at the OBD level. To ensure uniform and centralized personnel policy,
authority in this regard has been delegated to the Director of the
Office of Attorney Personnel Management (OAPM) within the Deputy
Attorney General's office. Personnel policy is established by orders
and memoranda from the Director and is implemented by the heads of the
OBDs, including, for the divisions, the Assistant Attorneys General.
(Similarly, personnel policy for other employees within the OBDs, is
centralized through the use of DOJ and OBD orders through the Assistant
Attorney General for Administration.) In addition, labor relations
services for all of the attorneys within the OBDs, with the exception of
the U.S. Attorney's Office which has its own personnel office, are
provided for by the Justice Management Division through a personnel
office.
The unit sought in Case No. 3-RO-20013, consisting of all
nonsupervisory professionals in the Antitrust Division nationwide, has
approximately 313 employees, including 273 attorneys and 40 economists.
The Antitrust attorneys are classified as trial attorneys and most of
them are located in Washington, D.C. Approximately 76 nonsupervisory
attorneys are in the Division's seven field offices, where they
generally share common facilities with DOJ attorneys of the other legal
offices and divisions. The economists are in the competitive service
and are located in Washington.
The Antitrust Division is organized into sections, like the other
legal divisions, and has an Economic Policy Office and seven field
offices. The Division also has its own budget and provides seminars and
similar training on antitrust matters for its attorneys.
Responsibility for enforcement of the antitrust laws of the United
States regularly requires the Antitrust Division attorneys to work with
other DOJ attorneys in the OBDs. For example, the Antitrust attorneys,
as other DOJ attorneys, usually work with attorneys in the U.S.
Attorney's Office on litigation matters such as grand jury proceedings;
also, they share with Civil Rights Division attorneys enforcement
responsibility for a number of statutes. Related pleadings are
generally signed by attorneys from both divisions. The Antitrust
attorneys must consult the Criminal Division attorneys for authorization
of requests for immunity. Antitrust attorneys also work with the Tax
Division attorneys on large industry-wide tax cases.
Interchange and transfer involving the Antitrust attorneys and
attorneys in other legal offices and divisions within the DOJ has
occurred regularly. In addition to the aforementioned temporary details
to the U.S. Attorney's Office for four to six months with other DOJ
attorneys for litigation training, Antitrust Attorneys have been
reassigned on occasion outside of the Division to other legal offices
and divisions for special law enforcement purposes such as the Cuban and
Haitian Refugee Project and the Vietnam amnesty project. Of the 180
transfers within the OBDs from October 1981 to September 1982,
approximately 28 involved attorneys transferring between the Antitrust
Division and the U.S. Attorney's Office.
The Assistant Attorney General for the Antitrust Division provides
the day-to-day supervision for the Division. However, he has no
delegated personnel authority and his recommendations for personnel
actions are reviewed by OAPM. Informally, grievances are settled within
the Division; however, formal grievances are resolved by OAPM.
The Authority finds that the proposed unit within the Antitrust
Division, consisting of attorneys and other professionals, is not
appropriate under section 7112(a)(1) of the Statute. In this respect,
it has not been shown that Antitrust Division attorneys and other
professionals share a community of interest separate and distinct from
other attorneys and professionals in the various OBDs of the Department
of Justice. Thus, the record shows that the Antitrust attorneys sought
are basically litigation attorneys like DOJ attorneys within the other
legal offices and divisions, and all of the litigation attorneys are
located in the OBDs for organizational purposes. By enforcing the
antitrust laws of the United States, Antitrust attorneys, like other DOJ
attorneys within the OBDs, provide legal representation in court and
advice to the United States. Due to the nature of this mission, as
noted, contacts between Antitrust attorneys and other attorneys within
the OBDs occur on a regular basis, as do interchange and transfer. To
make its litigation attorneys, including those in Antitrust,
functionally interchangeable, all DOJ attorneys are in the excepted
service, receive common training, and share a common job series, and,
except for those in the U.S. Attorney's Office, all DOJ attorneys have
common wage scales. Thus, the Antitrust attorneys are subject to common
working conditions and practices with other attorneys within the OBDs.
Further, except for the U.S. Attorney's Office which has its own
personnel office, labor relations services are provided for all legal
offices and divisions at the OBD level through the Justice Management
Division.
As noted previously, personnel policies for the Antitrust attorneys
and all other litigation attorneys within the OBDs are centralized at
the OBD level. The OBDs are treated as one organizational entity,
equivalent to a "bureau," for administrative purposes, and personnel
authority in this regard has been delegated to the Director of OAPM to
ensure uniform and centrally located personnel policies for these
attorneys. The Assistant Attorney General for the Antitrust Division
provides supervision but he has no delegated personnel authority and
merely implements personnel policies based upon DOJ, OBD and OAPM
orders. OAPM sets all attorney personnel policies and reviews all
personnel actions in respect thereto. Therefore it is concluded that
the attorneys and other professional employees of the Antitrust Division
do not share a community of interest separate and distinct from other
attorneys and professional employees in the various OBDs of the Agency.
Moreover, recognition of attorneys and other professionals on a
division basis, as sought, could lead to diverse personnel policies and
undue fragmentation among the attorneys within the legal offices and
divisions which would not promote effective dealings with, and
efficiency of operations of, the Agency.
In a previous case, Immigration and Naturalization Service, 12 FLRA
No. 68 (1983), the Authority found appropriate a residual unit of all
attorneys and other professionals in the Immigration and Naturalization
Service (INS), a bureau of the Department of Justice. In contrast, the
unit sought here (and the one sought in the companion Civil Rights
Division case, discussed below), would include professionals of a single
division, which constitute fragments of the "OBDs" or offices, boards
and divisions, which together are treated by the Agency as an entity
equivalent to a bureau. Thus, unlike the INS situation, as noted, DOJ's
efficiency of operations, and effective dealings, would not be promoted
by granting the unit sought. Accordingly, the petition in Case No.
3-RO-20013 shall be dismissed.
In Case No. 3-RO-30006, NTEU seeks a unit of all nonsupervisory
professional employees in the Civil Rights Division, consisting of
approximately 126 employees classified as trial attorneys. The Civil
Rights Division consists of sections, like other legal divisions within
the OBDs. It also has an Executive Office.
By prosecuting civil rights violations through the enforcement of
executive orders and Federal statutes, the Civil Rights Division
attorneys are litigation attorneys who perform a legal representation
mission similar to other DOJ attorneys within the OBDs. As a result,
Civil Rights Division attorneys have regular and frequent contacts with
attorneys in other legal offices and divisions. They interact
extensively with attorneys in the U.S. Attorney's Office, as do the
attorneys in the other legal offices and divisions. Civil Rights
attorneys must direct requests for immunity through the Criminal
Division, and consult attorneys in the Civil Division where that
Division has been requested to defend Federal officials accused of civil
rights violations. Other contacts consist of, but are not limited to,
consultations between the Civil Rights attorneys and those in the Tax
Division concerning the tax exempt statute of discriminating private
schools.
The record shows further that interchange and transfers of the
attorneys sought in the Civil Rights Division unit to other legal
offices and divisions occur regularly. Civil Rights attorneys
participate with other DOJ attorneys in temporary details to other legal
offices and divisions where additional help is needed. All new hired
within the Division are detailed temporarily to the U.S. Attorney's
Office with other DOJ attorneys for common training. There have also
been transfers by attorneys to and from the Division.
The Assistant Attorney General for the Civil Rights Division provides
the overall direction for the Division similar to that detailed above in
the case of the Antitrust Division. As noted there, attorney personnel
policy within the OBDs is determined by OAPM and it is implemented
generally within the Civil Rights Division by the Assistant Attorney
General.
The Authority finds that the proposed unit of attorneys, who are the
only eligible professional employees within the Civil Rights Division,
is not appropriate under the Statute, as the record reveals facts
similar to those discussed above in connection with the Antitrust
Division. Thus, it has not been shown that Civil Rights Division
attorneys share a community of interest separate and distinct from other
attorneys in the various OBDs of the Agency. Their mission requires
regular contacts between the Civil Rights attorneys and other attorneys
within the OBDs; interchange and transfer occur regularly, and DOJ has
sought to make its litigation attorneys, including those in the Civil
Rights Division, as functionally interchangeable as possible. Personnel
policy regarding the attorneys within the Civil Rights Division, as for
other litigation attorneys within the OBDs, is determined by OAPM and
OAPM reviews all related personnel actions.
Moreover, the record establishes that, like the Antitrust Division,
recognition of attorneys on a division basis, as sought, could lead to
diverse personnel policies and undue fragmentation among the attorneys
within the legal offices and divisions which not promote effective
dealings with, and efficiency of operations of, the Agency.
Accordingly, the petition in Case No. 3-RO-30006 shall be dismissed.
ORDER
IT IS ORDERED that the petitions in Case Nos. 3-RO-20013 and
3-RO-30006 be, and they hereby are, dismissed. Issued, Washington,
D.C., October 30, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Authority hereby grants the joint motion of the parties in
both cases to consolidate these proceedings, noting particularly the
parties' intention that the record of one proceeding should incorporate
the record of the other.
/2/ Section 7112(a)(1) provides, in pertinent part:
Sec. 7112. Determination of appropriate units for labor
organization representation.
(a)(1) The Authority shall determine . . . any unit to be an
appropriate unit only if the determination will ensure a clear and
identifiable community of interest among the employees in the unit
and will promote effective dealings with, and efficiency of the
operations of, the agency involved.