U.S. Department of Health and Human Services, Administration for Children and Families, Washington, D.C. and National Treasury Employees Union (Authority decision, January 7, 1993)

FLRA representation decision. The Authority grants review of a regional director's dismissal of a certification amendment petition and invites briefs. It has not decided whether the union can be certified without an election, so this order does not end the representation proceeding. Judicial review under 5 U.S.C. § 7123(a)(2) excludes orders involving appropriate-unit determinations under 5 U.S.C. § 7112. This order is not presented as beginning a judicial-review filing period.

Plain-English summary

A Health and Human Services reorganization combined employees from several previously represented units into the Administration for Children and Families. NTEU sought to amend its certification so it could represent the new agency's employees without an election. A regional director dismissed the petition, reasoning that an election was required. The Authority granted review of the question whether certification without an election was possible and gave the parties 10 days to submit briefs. It declined to stay the regional decision and did not decide the certification question in this order.

Decision snapshot

• Authority: Review of regional decisions under 5 C.F.R. § 2422.17.
• Outcome: Application for review granted; briefing invited; stay request denied.
• Key point: The Authority opened review of the certification question but left its answer for a later decision.

Full text (FLRA public release)

[ v46 p1115 ]
46:1115(100)AC

The decision of the Authority follows:

46 FLRA No. 100

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

ADMINISTRATION FOR CHILDREN AND FAMILIES

WASHINGTON, D.C.

(Activity)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Petitioner)

3-AC-10008

_____

ORDER GRANTING APPLICATION FOR REVIEW

January 7, 1993

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review of the Regional Director's (RD's) decision and order filed by the Petitioner under section 2422.17(a) of the Authority's Rules and Regulations.

The Activity, a principal operating division of the Department of Health and Human Services, was created in 1991 as a result of a reorganization which combined all of the functions and employees of the Family Support Administration (FSA) with a portion of the functions and employees of the Office of Human Development/Office of the Secretary (OHDS). Following the reorganization, program offices in FSA and OHDS remained, for the most part, intact. Staff functions, including policy and program evaluation, legislation, communications, and financial management, were combined.

The Petitioner was certified in 1986 as the exclusive representative of a bargaining unit including all professional and nonprofessional FSA employees. The Petitioner was certified in 1983 and 1984 as the exclusive representative of separate bargaining units of professional and nonprofessional employees in the Office of the Secretary. The separate units included, but were not confined to, the OHDS employees involved in the reorganization.

The Petitioner filed an amendment of certification (AC) petition contending that the Activity "is a successor employer with respect to the former FSA employee unit and that the former employees of OHDS who transferred to [the Activity] have accreted to the former FSA employee unit . . . ." RD's Decision at 2.(1) The RD dismissed the petition based on his conclusion that, as relevant here, the Activity was "in effect, a new organizational entity which includes employees from all or part of three previously recognized bargaining units" and which had no successorship obligations with respect to the former FSA unit. Id. at 5. According to the RD, as a result of the reorganization, "the former [Petitioner] represented employees have been reorganized into a new unit or units . . . which may be established only by the filing of a petition or petitions for an election or elections . . . ." Id. at 5-6.(2)

The Union seeks review of the RD's decision and requests a stay of the decision under section 7105(f) of the Federal Service Labor-Management Relations Statute (the Statute)(3) and section 2422.17(g) of the Authority's Rules and Regulations.(4) The Activity did not file an opposition to the application for review.(5)

II. Order

We find that the Petitioner has demonstrated that compelling reasons exist for granting its application for review of the RD's decision under section 2422.17(c) of the Authority's Rules and Regulations.(6) Accordingly, we grant the application for review of the RD's decision 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.

In accordance with section 2422.17(g) of our Rules and Regulations, the parties may, within 10 days after issuance of this Order, submit briefs on the issue raised by the application for review. Briefs should be directed to:

Ms. Alicia Columna
Director, Case Control Office
Federal Labor
Relations Authority
500 C Street S.W., Room 213
Washington, D.C.
20424-0001

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

1. The record reflects that the
   Petitioner initially filed a clarification of unit (CU) petition but that after certain changes were made in the Activity reorganization, the CU petition was withdrawn. At the conclusion of the hearing in this case, the Petitioner "requested, in the event that the Authority determines that the AC petition is not the appropriate vehicle through which the petitioned-for unit certification could be granted, that the Authority consider the petition as a CU petition, or as a joint AC/CU petition." Application for Review at 2 (footnote omitted).

2. The RD stated that a CU petition
   also "would be an inappropriate vehicle to establish [Petitioner's] representative status at [the Activity] since it also is not a petition for an election . . . ." RD's Decision at 6 n.2.

3. Section 7105(f) of the Statute
   provides, in relevant part, that:

If the Authority delegates any authority to any regional director . .
. to take any action pursuant to subsection (e) of this section, the Authority may, . . . review such action, but the review shall not, unless specifically ordered by the Authority, operate as a stay of action.

4. Section 2422.17(g) of the
   Regulations provides, in relevant part, that:

The granting of an application for review shall not stay the Regional Director's Decision and Order unless otherwise ordered by the Authority.

5. Following the reorganization,
   the Activity and the Petitioner executed an agreement providing, among other things, that the collective bargaining agreement between the Petitioner and FSA would be applied to the Activity's employees. The Activity did not oppose representation of its employees by the Petitioner at the hearing in this case.

6. Although we grant the
   application for review, we find no basis on which to stay the RD's decision. In this regard, the decision neither effected nor required any action which could be stayed. Instead, the RD simply dismissed the petition.