Drug Enforcement Administration, Boston District Office, Department of Justice (Activity) and American Federation of Government Employees, Local 3679 (Petitioner); Drug Enforcement Administration, Northeastern Region, Department of Justice (Activity/Petitioner) and American Federation of Government Employees, AFL-CIO, Local 3679 and Local 3550 (Interveners) (Authority decision, August 26, 1980)

FLRA remand decision. The Authority returned these representation cases to the Regional Director for more evidence; the unit questions remained pending. Under 5 U.S.C. § 7123(a)(2), orders involving appropriate unit determinations under 5 U.S.C. § 7112 are excluded from judicial review.

Plain-English summary

Two DEA representation petitions raised whether existing units remained appropriate after a reorganization. An executive order issued after the hearing excluded parts of DEA from the federal labor statute. The Authority found the record inadequate to determine how that exclusion affected the units. It remanded both cases to the Regional Director to reopen the record and develop the agency structure and employees’ assignments.

Decision snapshot

• Authority: 5 U.S.C. § 7103(b), 5 U.S.C. § 7112.
• Outcome: Representation petitions remanded for a fuller record.
• Key point: The new exclusion order required evidence about the reorganized DEA offices.

Full text (FLRA public release)

[ v04 p88 ]

04:0088(13)CU

The decision of the Authority follows:

4 FLRA No. 13

DRUG ENFORCEMENT ADMINISTRATION
BOSTON DISTRICT OFFICE
DEPARTMENT OF JUSTICE
Activity
Case No. 1-CU-11

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3679
Petitioner

DRUG ENFORCEMENT ADMINISTRATION
NORTHEASTERN REGION
DEPARTMENT OF JUSTICE
Activity/petitioner
Case No. 1-RA-1

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-ICO, LOCAL 3679
AND LOCAL 3550
Intervenors

DECISION AND ORDER

UPON PETITIONS DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR MANAGEMENT
RELATIONS STATUTE, A HEARING ON THE CONSOLIDATED CASES WAS HELD BEFORE A
HEARING OFFICER OF THE AUTHORITY. THE AUTHORITY HAS REVIEWED THE
HEARING OFFICER'S RULING MADE AT THE HEARING AND FINDS THEY ARE FREE
FROM PREJUDICIAL ERROR. THE RULINGS ARE HEREBY AFFIRMED.

UPON THE ENTIRE RECORD IN THESE CASES, AND SUBSEQUENT ISSUANCES
CONCERNING WHICH THE AUTHORITY TAKES OFFICIAL NOTICE, THE AUTHORITY
FINDS:

THE DRUG ENFORCEMENT ADMINISTRATION, NORTHEASTERN REGION, DEPARTMENT
OF JUSTICE (DEA) FILED THE RA PETITION HEREIN (1-RA-1), ASSERTING THAT
AS A RESULT OF A REORGANIZATION OF THE DEA, ON OCTOBER 1, 1978, THE
CHARACTER AND SCOPE OF THE BARGAINING UNITS REPRESENTED BY AFGE LOCALS
3679 AND 3550 RESPECTIVELY HAS SUBSTANTIALLY CHANGED, AND THE UNITS ARE
NO LONGER APPROPRIATE FOR PURPOSES OF COLLECTIVE BARGAINING.

THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3679, FILED
THE CU PETITION HEREIN (1-CU-11), ASSERTING THAT THE BARGAINING UNIT
REPRESENTED BY AFGE LOCAL 3679 REMAINS APPROPRIATE FOR THE PURPOSES OF
COLLECTIVE BARGAINING.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3550 AND LOCAL
3679, HAS INTERVENED IN THE RA PROCEEDING MAINTAINING THAT THE
BARGAINING UNITS IN WHICH THEY SERVE AS THE EXCLUSIVE REPRESENTATIVE
REMAIN APPROPRIATE FOR THE PURPOSES OF COLLECTIVE BARGAINING IN SPITE OF
THE ACTIVITY'S REORGANIZATION.

A REVIEW OF THE RECORD SHOWS THAT ON OCTOBER 1, 1978, A NATIONWIDE
REORGANIZATION OF THE DRUG ENFORCEMENT ADMINISTRATION (DEA), DEPARTMENT
OF JUSTICE, WAS INSTITUTED. PRIOR TO OCTOBER 1, 1978, THE
ORGANIZATIONAL FRAMEWORK CONSISTED OF TWELVE DOMESTIC REGIONS. THE
REORGANIZATION CONSOLIDATED THESE TWELVE REGIONS INTO FIVE.

AS OF OCTOBER 1, 1978, THE BOSTON, NEW YORK AND PHILADELPHIA DOMESTIC
REGIONS WERE INCORPORATED INTO THE NEWLY CREATED NORTHEASTERN REGION.
THESE THREE OFFICES WERE THEN DESIGNATED DISTRICT OFFICES, WITH THE
FORMER REGIONAL DIRECTORS IN BOSTON AND PHILADELPHIA ASSUMING THE
POSITIONS OF SPECIAL AGENT-IN-CHARGE, AND THE FORMER DIRECTOR OF THE NEW
YORK REGION ASSUMING THE POSITION OF DIRECTOR OF THE NORTHEASTERN
REGION.

SOON AFTER THE CLOSE OF THE HEARING, EXECUTIVE ORDER 12171 WAS ISSUED
BY THE PRESIDENT PURSUANT TO THE AUTHORITY CONTAINED IN 5 U.S.C. 7103(B)
EXCLUDING CERTAIN AGENCIES AND AGENCY SUBDIVISIONS FROM COVERAGE UNDER
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE ON THE BASIS THAT
THEY HAVE BEEN DETERMINED TO HAVE AS A PRIMARY FUNCTION INTELLIGENCE,
COUNTERINTELLIGENCE, INVESTIGATIVE, OR NATIONAL SECURITY WORK AND THAT
THE STATUTE CANNOT BE APPLIED TO THEM CONSISTENT WITH NATIONAL SECURITY
REQUIREMENTS.

THE PERTINENT PROVISIONS OF EXECUTIVE ORDER 12171 AS IT RELATES TO
THE SUBJECT PETITION ARE AS FOLLOWS:

1-1 DETERMINATIONS

. . . .

1-101. THE AGENCIES OR SUBDIVISIONS THEREOF SET FORTH IN SECTION 1-2
OF THIS ORDER ARE

HEREBY DETERMINED TO HAVE AS A PRIMARY FUNCTION INTELLIGENCE,
COUNTERINTELLIGENCE,

INVESTIGATIVE, OR NATIONAL SECURITY WORK . . . THE AGENCIES OR
SUBDIVISIONS THEREOF SET FORTH

IN SECTION 1-2 OF THIS ORDER ARE HEREBY EXCLUDED FROM COVERAGE UNDER
CHAPTER 71 OF TITLE 5 OF

THE UNITED STATES CODE.

1-2 EXCLUSIONS

. . . .

1-209. THE OFFICE OF ENFORCEMENT AND THE OFFICE OF INTELLIGENCE,
INCLUDING ALL DOMESTIC

FIELD OFFICES AND INTELLIGENCE UNITS, OF THE DRUG ENFORCEMENT
ADMINISTRATION, DEPARTMENT OF

JUSTICE.

THE AUTHORITY HAS CONSIDERED THE RECORD IN LIGHT OF EXECUTIVE ORDER
12171, (WHICH AS ALREADY MENTIONED ISSUED AFTER THE DATE OF THE HEARING)
AND HAS CONCLUDED THE RECORD IS INADEQUATE FOR THE PURPOSE OF MAKING A
COMPLETE AND ACCURATE DETERMINATION ON THE REPRESENTATIONAL ISSUES
PRESENTED. THEREFORE, THE AUTHORITY WILL REMAND THE SUBJECT CASE TO THE
REGIONAL DIRECTOR FOR THE PURPOSE OF REOPENING THE RECORD TO SECURE
ADDITIONAL EVIDENCE CONCERNING, BUT NOT LIMITED TO, THE FOLLOWING
FACTORS:

1. DESCRIPTION OF THE INTERNAL ORGANIZATIONAL STRUCTURE OF THE DRUG
   ENFORCEMENT ADMINISTRATION (DEA), NATIONAL HEADQUARTERS OFFICE AND EACH
   REGIONAL, DISTRICT AND RESIDENT OFFICE IN REGARDS TO THEIR ENFORCEMENT
   AND INTELLIGENCE OPERATIONS PURSUANT TO DEA REORGANIZATION OF OCTOBER 1,
   1978.

2. DESCRIPTION OF THE ORGANIZATIONAL LINKAGE BETWEEN NATIONAL
   HEADQUARTERS, REGIONAL, DISTRICT, AND RESIDENT OFFICES IN REGARDS TO
   ENFORCEMENT AND INTELLIGENCE OPERATIONS.

IN ADDITION, THE AUTHORITY NOTES THAT THE PARTIES DID NOT HAVE THE
OPPORTUNITY TO SUBMIT BRIEFS ON THE IMPACT OF EXECUTIVE ORDER 12171 ON
THE ISSUES INVOLVED IN THIS CASE. IN THIS LATTER REGARD, THE AUTHORITY
INVITES THE VIEWS OF THE PARTIES AS TO THEIR INTERPRETATION AND
APPLICATION OF THE PERTINENT PROVISIONS OF EXECUTIVE ORDER 12171
AFFECTING THE ISSUES IN THE INSTANT CASE.

THE PARTIES MAY, HOWEVER, SETTLE ANY ISSUES IN THE INSTANT CASES ON
THE BASIS OF PROVISIONS OF EXECUTIVE ORDER 12171, OR ENTER IN JOINT
STIPULATIONS AS TO ANY FACTS ABOUT WHICH THERE IS NO DISPUTE.

ORDER

IT IS HEREBY ORDERED THAT THE SUBJECT CASES BE, AND THEY HEREBY ARE,
REMANDED TO THE REGIONAL DIRECTOR FOR APPROPRIATE ACTION CONSISTENT
HEREWITH.

ISSUED, WASHINGTON, D.C., AUGUST 26, 1980.

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY