Department of Health and Human Services, Regions II, III, IV, V, VII and IX, and Social Security Administration; National Treasury Employees Union and American Federation of Government Employees (Authority decision, November 14, 1991)

FLRA representation decision. This order grants review of a regional director's bargaining unit decision and invites briefs within 10 days. The Authority has not yet decided which union represents the disputed employees, so this order does not start a final judicial-review period. A final Authority order involving an appropriate-unit determination under 5 U.S.C. § 7112 falls within the review exclusion in 5 U.S.C. § 7123(a)(2).

Plain-English summary

After HHS reorganized Social Security program service centers, a regional director placed about 328 transferred support employees in a unit represented by the National Treasury Employees Union instead of the American Federation of Government Employees. AFGE asked the Authority to review that change, arguing that the employees still shared a community of interest with its existing unit. The Authority found a substantial question about whether the regional director had departed from precedent on community of interest. It granted review and allowed the parties 10 days to submit briefs. The order does not decide which bargaining unit should include the employees.

Decision snapshot

• Authority: Bargaining unit community of interest under 5 U.S.C. § 7112(a)(1).
• Outcome: Application for review granted; parties may submit briefs within 10 days.
• Key point: The Authority will examine whether transferring support employees to a regional structure changed their community of interest enough to alter union representation.

Full text (FLRA public release)

[ v43 p122 ]
43:0122(12)CU

The decision of the Authority follows:

43 FLRA No. 12

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

REGION II

NEW YORK, NEW YORK

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

(Labor Organization/Intervenor)

32-CU-00005

DEPARTMENT OF HEALTH AND HUMAN SERVICES

REGION III

PHILADELPHIA, PENNSYLVANIA

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

(Labor Organization/Intervenor)

32-CU-00006

DEPARTMENT OF HEALTH AND HUMAN SERVICES

REGION IV

ATLANTA, GEORGIA

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

(Labor Organization/Intervenor)

34-CU-00011

DEPARTMENT OF HEALTH AND HUMAN SERVICES

REGION V

CHICAGO, ILLINOIS

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

(Labor Organization/Intervenor)

35-CU-00009

DEPARTMENT OF HEALTH AND HUMAN SERVICES

REGION VII

KANSAS CITY, MISSOURI

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

(Labor Organization/Intervenor)

37-CU-00015

DEPARTMENT OF HEALTH AND HUMAN SERVICES

REGION IX

SAN FRANCISCO, CALIFORNIA

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

(Labor Organization/Intervenor)

39-CU-00006

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

(Labor Organization/Petitioner)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Intervenor)

3-CU-00029

ORDER GRANTING APPLICATION FOR REVIEW

November 14, 1991

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 American Federation of Government Employees (AFGE) under section 2422.17(a) of the Authority's Rules and Regulations. In his Decision and Order on Petitions for Clarification of Unit, the Regional Director (RD) clarified the National Treasury Employees Union's (NTEU) bargaining unit to include certain employees of the Social Security Administration (SSA) who previously were part of an AFGE bargaining unit, and dismissed AFGE's petition in Case No. 3-CU-00029 seeking to retain those employees in its established unit.

AFGE seeks review of the RD's decision. The Department of Health and Human Services (HHS) and NTEU filed oppositions to AFGE's application. For the reasons discussed below, we find that AFGE has established that compelling reasons exist for granting the application for review pursuant to the provisions of section 2422.17 of the Authority's Rules and Regulations. Accordingly, we grant the application for review.

II. Background and Regional Director's Decision

HHS is comprised of five Federal agencies: (1) the Office of Human Development; (2) the Public Health Service; (3) the Health Care Financing Administration; (4) the Family Service Administration; and (5) SSA. Organizationally, HHS has 10 regional offices made up of operations divisions and staff divisions. SSA includes six Program Service Centers (PSCs), located in six of HHS's 10 regions, and district and branch (field) offices located throughout the 10 regions.

NTEU is the exclusive representative of a consolidated bargaining unit of all employees in HHS's 10 regional offices, comprised of the staff division of SSA and the operations divisions and staff divisions of the other four HHS agencies (approximately 4200 employees). AFGE is the exclusive representative of a consolidated bargaining unit of all employees in SSA's six PSCs and comprised of the operations and staff support functions of the PSCs (approximately 10,000 employees). AFGE is also the exclusive representative of a consolidated bargaining unit of various SSA field offices throughout the country (approximately 18,000 employees). The National Federation of Federal Employees represents SSA field employees in certain district and branch offices.

Effective December 20, 1990, pursuant to a reorganization by HHS, the administrative and staff employees performing staff support functions at each of the PSCs were transferred from the control of SSA Headquarters, Baltimore, to the control of the respective regions within which they are located. NTEU filed six clarification of unit (CU) petitions, seeking to clarify its consolidated unit of regional office employees by including the PSC administrative and staff employees performing staff support functions who, as a result of the reorganization, were transferred to the respective HHS regional offices (approximately 328 employees).

Prior to the reorganization, each PSC, headed by a Director, was autonomous and self-supporting in terms of its daily operations and staff support functions, and reported directly to SSA Headquarters, Baltimore. Each PSC had a Director of Operations who was responsible for the payment and service to beneficiaries, and a Director of Management who was responsible for the staff support functions of the PSC. As a result of the reorganization, the Director of Operations and Director of Management positions were abolished in the PSCs. Three new positions were created in each of the six respective HHS regional offices to take the place of the former PSC directors. Operations functions now come under the Assistant Regional Commissioner for Program Center Operations (ARC-PCO); staff support functions, separated to reflect changes in functional responsibility, now come under the Assistant Regional Commissioner for Management and Budget (ARC-M&B) or the Assistant Regional Commissioner for Program Operation and Systems (ARC-POS).

As a result of the reorganization, all PSC employees "were organizationally and operationally transferred" to the regional offices. RD's Decision at 5. The employees performing operations functions who had reported to the Director of Operations, except for employees in the Systems Operations and Methods Branch (SOMB), now report to the ARC-PCO, which is primarily responsible for PSC operations. The administrative and staff employees performing staff support functions who had reported to the Director of Management, except for employees in the Management Analyses Branch (MAB), now report to the ARC-M&B, which provides staff support to the PSCs as well as SSA field offices. The employees performing the SOMB and MAB functions now report to the ARC-POS, which provides management information and systems analysis functions for the PSCs as well as SSA field offices.

By its six petitions, NTEU sought to accrete to its consolidated unit the administrative and staff employees, in each of the six respective HHS regions, who now report to the ARC-M&B and the ARC-POS, as well as the administrative employees who work in the immediate office of the ARC-PCO. The parties agree that the employees in the PSCs who report to the ARC-PCO continue to be represented by AFGE in its PSC bargaining unit. By its petition, AFGE sought to retain in its PSC unit all the employees sought by NTEU.

The record reveals that approximately 328 administrative and staff employees were transferred as a result of the reorganization. Only a small number of PSC employees were physically relocated to regional offices. The location of regional offices and PSCs was not changed. In one region (Kansas City), the PSC and the regional office are located in the same building. In one region (Atlanta), the regional office is located in Atlanta, while the PSC is located approximately 100 miles away, in Birmingham, Alabama. In the remaining four regions (New York, Philadelphia, Chicago, and San Francisco), the regional offices and PSCs are located in the same city but in separate buildings.

The RD found that, since the reorganization: (1) "the conditions of employment of the disputed employees are now similar, in significant ways, to other regional office employees as a result of their having been organizationally and operationally integrated into the regional offices" (id. at 10-11); (2) the transferred employees "share the same direct supervision in common [with] and perform the same job duties and functions" as other regional office employees (id. at 11); and (3) the employees are "governed by the same personnel and labor relations policies and practices administered by the regional personnel office" as are other regional office employees (id.).

The RD found that the employees sought by NTEU "no longer have a community of interest with the PSC employees represented by AFGE who perform operations functions, but instead share a community of interest with other regional office NTEU represented employees who report to the same Assistant Regional Commissioners." Id. The RD noted that "the purpose of the reorganization was to consolidate administrative, support and staff functions in order to eliminate duplication of effort and managerial functions." Id. The RD found that "the evidence established that the disputed employees perform administrative and support functions essentially indistinguishable from those of the regional employees in the NTEU unit." Id. The RD also noted "particularly that the employees in question were
[administratively] transferred to the regional offices in conjunction with a realignment and consolidation of certain functions . . . and that NTEU's representation of all employees performing administrative, support and staff functions in the regional offices has historically resulted in effective dealings[.]" Id. at 12.

The RD concluded that "accreting the disputed employees to the consolidated unit represented by NTEU will promote effective dealings and the efficiency of agency operations." Id. Accordingly, the RD concluded that NTEU's bargaining unit should be clarified to include the employees sought by its petitions. In view of this determination, the RD concluded that AFGE's petition seeking to retain these employees in AFGE's PSC unit should be dismissed.

III. Application for Review

AFGE seeks review of the RD's decision on the grounds that: (1) "a substantial question of law and policy is raised because of the departure from Authority precedent in cases regarding community of interest" (Application at 1); (2) "the RD erroneously held[,] in light of the substantial record evidence adduced at hearing and noted in the [RD's decision], that the disputed employees no longer share a community of interest with other employees" in AFGE's PSC bargaining unit (id.); and (3) "a substantial question of law and policy is raised because of the departure from Authority precedent in cases concerning accretion" (id.).

AFGE argues that the reorganization has resulted in the physical transfer of only a handful of employees, that the PSC employees continue to perform the same duties and responsibilities as before the reorganization, and that the RD erred in finding that the employees have similar job descriptions or perform the same functions as other regional employees.

AFGE states that, although some reporting requirements have changed, the disputed employees "continue to be administratively, operationally and functionally integrated in SSA with other AFGE represented employees." Id. at 11. AFGE argues that the record does not support a finding that the disputed employees have accreted to NTEU's unit, and contends that NTEU seeks to sever these employees without satisfying the Authority's requirement that "unusual circumstances exist to justify their severance . . . ." Id. at 14. Finally, AFGE contends that "assuming, arguendo, that the Authority finds the disputed employees no longer share a community of interest with other AFGE/SSA employees, any accretion without an election to
[add the employees] to the NTEU/SSA unit would be an abrogation of the rights of [the] disputed employees" because "the number of AFGE/SSA disputed employees being accreted to the 402 employees NTEU/SSA unit is 371." Id. at 16. In support of its argument, AFGE cites to cases in the private sector where the National Labor Relations Board (NLRB) has refused to allow accretion without an election when the number of employees who would be accreted was equal to or greater than the number of employees in the established unit.

IV. Oppositions

NTEU argues that the record "clearly establishes that the disputed, and now accreted employees, share a community of interest with the other SSA employees in NTEU's consolidated unit . . . and no longer with the AFGE-PSC employees." NTEU's Opposition at 4. NTEU also argues that "Authority precedent, contrary to AFGE's contention, supports the RD's decision." Id. at 18. Finally, NTEU argues that, contrary to AFGE's contention, an election is not warranted if it is found that NTEU's unit is the only appropriate unit because only "in limited circumstances where two (2) units have been found appropriate" is an election warranted. Id. at 23.

HHS argues that the RD's decision "was the correct decision and was fully consistent with the facts . . . as well as relevant case law." HHS's Opposition at 1. HHS also argues that an election in any case is "entirely inappropriate" because the question of accretion "is one of law" that "does not depend upon, and should not be determined by, an election[.]" Id. at 3.

V. Analysis and Conclusions

We conclude that AFGE has established that compelling reasons exist for granting the application for review pursuant to the provisions of section 2422.17(c)(1) and (4) of the Authority's Rules and Regulations. Specifically, we find that a substantial question of law or policy has been raised as to whether the RD has departed from Authority precedent under section 7112(a)(1) of the Statute by finding that the employees sought by NTEU's petitions share a community of interest with other employees in NTEU's consolidated regional unit, and no longer share a community of interest with employees in AFGE's PSC unit who perform operations functions. Accordingly, we will grant the application for review.

VI. Order

For the reasons discussed above, we grant the application for review. In accordance with section 2422.17(g) of the Authority's Rules and Regulations, the parties may, within 10 days after issuance of this Order, submit briefs on the issues raised by the application for review. Briefs should be directed to:

Alicia N. Columna
Director, Case Control Office
Federal Labor
Relations Authority
500 C Street, SW., Room 213
Washington, D.C.
20424

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