[ v03 p265 ]
03:0265(41)CU
The decision of the Authority follows:
3 FLRA No. 41
U.S. DEPARTMENT OF LABOR
Agency/Petitioner
and
LOCAL 12, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Labor Organization
Civil Service Commission
Case No. 114
U.S. DEPARTMENT OF LABOR
Agency
and
NATIONAL COUNCIL OF FIELD LABOR
LOCALS, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Labor Organization/Petitioner
and
COUNCIL 208, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Labor Organization
Civil Service Commission
Case No. 132
DECISION AND ORDER
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER NANCY ANDERSON.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED, IN
A MATTER SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER
SECTION 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH
TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE
AUTHORITY'S RULES AND REGULATIONS (45 F.R. 3482, JANUARY 17, 1980). THE
AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE
FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING BRIEFS FILED BY THE
PARTIES, THE AUTHORITY FINDS: /1/
IN CASE NO. CSC 114, THE DEPARTMENT OF LABOR (DOL) SEEKS TO CLARIFY
THE STATUS OF THE UNIT REPRESENTED EXCLUSIVELY BY LOCAL 12 OF THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (LOCAL 12) BY ACCRETING TO
IT THE HEADQUARTERS EMPLOYEES OF THE MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) OF THE DOL. IN CASE NO. CSC 132, THE NATIONAL
COUNCIL OF FIELD LABOR LOCALS OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (THE COUNCIL) SEEKS TO CLARIFY THE UNIT OF DOL EMPLOYEES WHICH
IT REPRESENTS EXCLUSIVELY BY ACCRETING TO THAT UNIT THE FIELD EMPLOYEES
OF THE MSHA. THE PARTIES TO BOTH CASES FULLY SUPPORT THE ACCRETIONS
SOUGHT IN THE TWO PETITIONS.
ON NOVEMBER 9, 1977, THE FUNCTIONS OF MINE SAFETY AND INSPECTION WERE
TRANSFERRED ALONG WITH APPROXIMATELY 3500 EMPLOYEES PERFORMING THE
FUNCTIONS FROM THE DEPARTMENT OF INTERIOR TO DOL, PURSUANT TO THE
FEDERAL MINE SAFETY AND HEALTH AMENDMENTS ACT OF 1977, PUBLIC LAW
95-164. THE REASONING BEHIND THE TRANSFER WAS A CONGRESSIONALLY
PERCEIVED CONFLICT OF INTEREST WITHIN THE DEPARTMENT OF INTERIOR, WHICH
ALSO HAS THE RESPONSIBILITY OF MAXIMIZING MINING PRODUCTION. IT WAS
FELT THAT THE FUNCTIONS WERE MORE COMPATIBLE WITH THE DOL'S MISSION OF
PROTECTION OF WORKERS AND THE INSURING OF SAFE AND HEALTHFUL WORKING
CONDITIONS. SEE, SENATE REPORT NO. 95-181 TO THE FEDERAL MINE SAFETY
AND HEALTH AMENDMENTS ACT OF 1977.
PRIOR TO THE TRANSFER, THE FUNCTIONS OF MINE SAFETY AND INSPECTION
WERE PERFORMED BY THE MINING ENFORCEMENT SAFETY ADMINISTRATION (MESA) OF
THE DEPARTMENT OF INTERIOR. THE MESA'S OBJECTIVES WERE TO ADMINISTER
THE PROVISIONS OF THE FEDERAL METAL AND NONMETALLIC MINE SAFETY ACT AND
THE FEDERAL COAL MINE HEALTH AND SAFETY ACT. THE MESA ORGANIZATION
INCLUDED A HEADQUARTERS OFFICE IN THE WASHINGTON, D.C., METROPOLITAN
AREA, AND VARIOUS FIELD OFFICES CONCENTRATED IN THE NORTHEAST WHICH
REPORTED THROUGH ASSISTANT ADMINISTRATORS TO THE ADMINISTRATOR OF MESA.
THE ASSISTANT ADMINISTRATORS FOR ASSESSMENTS, COAL MINE HEALTH AND
SAFETY, METAL AND NONMETAL MINE HEALTH AND SAFETY, EDUCATION AND
TRAINING, AND TECHNICAL SUPPORT EACH HAD THEIR OWN FIELD OFFICES. /2/
FOUR CERTIFIED EXCLUSIVE UNITS REPRESENTED BY THREE DIFFERENT LOCALS
OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE) WERE IN
EXISTENCE AT THE TIME OF THE TRANSFER. NONE OF THE AFGE LOCALS EXPRESSED
AN OBJECTION TO THE ACCRETIONS SOUGHT HEREIN. MORE THAN FIFTY PERCENT
OF THE MESA EMPLOYEES WERE IN THESE AFGE UNITS. AMONG THE UNREPRESENTED
MESA EMPLOYEES WERE ALL OF ITS HEADQUARTERS EMPLOYEES AND LESS THAN HALF
OF THE FIELD EMPLOYEES.
THE STRUCTURE OF DOL PRIOR TO THE TRANSFER INCLUDED SEVEN ASSISTANT
SECRETARY LEVEL ORGANIZATIONS WITH APPROXIMATELY 20,000 EMPLOYEES. EACH
ORGANIZATION HAS ITS OWN OPERATIONAL FIELD STRUCTURE, AND OPERATES
SEPARATELY, WHILE BEING ADMINISTERED THROUGH 10 REGIONAL OFFICES WHICH
SERVICE ALL OF THEIR FIELD ACTIVITIES. ALL OF THE DOL'S ORGANIZATIONAL
ELEMENTS ARE RESPONSIBLE FOR PROMOTING THE WELFARE OF THE AMERICAN
WORKER. ALL OF THE DOL'S ELIGIBLE EMPLOYEES (WITH THE EXCEPTION OF
APPROXIMATELY 800 EMPLOYEES OF THE LABOR-MANAGEMENT SERVICES
ADMINISTRATION WHO ARE IN A SEPARATE BARGAINING UNIT) WERE, AND CONTINUE
TO BE, REPRESENTED EXCLUSIVELY BY LOCAL 12 IN WHAT IS ESSENTIALLY A
HEADQUARTERS UNIT AND BY THE COUNCIL IN A FIELD UNIT. /3/
AT THE TIME OF THE TRANSFER OF THE APPROXIMATELY 3500 MESA EMPLOYEES
TO THE DEPARTMENT OF LABOR TO FORM THE NUCLEUS OF THE MSHA, THE DOL
DECIDED, IN ORDER TO MINIMIZE THE DISRUPTION OF SERVICES TO THE PUBLIC,
TO TRANSFER THE MESA ORGANIZATION AND PERSONNEL ESSENTIALLY INTACT AND
TO INTEGRATE THE MSHA INTO THE DOL BOTH ADMINISTRATIVELY AND
ORGANIZATIONALLY IN PHASES. AN ASSISTANT SECRETARY OF LABOR FOR MINE
SAFETY AND HEALTH ADMINISTRATION WAS APPOINTED. HE MADE CERTAIN
ORGANIZATIONAL CHANGES BASED ON THE REQUIREMENTS OF THE 1977 AMENDMENTS
AND TO IMPROVE THE ORGANIZATIONAL STRUCTURE. CHIEFS OF THE INSPECTION
FUNCTIONS FOR BOTH COAL MINES AND METAL AND NONMETAL MINES WERE
ESTABLISHED AT THE ADMINISTRATOR LEVEL, AND CHIEFS OF THE SUPPORT
FUNCTIONS OF ASSESSMENT, EDUCATION AND TRAINING, TECHNICAL SUPPORT, AND
ADMINISTRATION AND MANAGEMENT WERE ESTABLISHED AT THE DIRECTOR LEVEL.
IN OCTOBER OF 1978, THE MSHA WAS CONVERTED TO THE DOL INTEGRATED
PERSONNEL, PAYROLL, AND BUDGET SYSTEM, AND BETWEEN JANUARY AND FEBRUARY
OF 1979, THE MSHA FIELD OFFICES WERE INTEGRATED INTO THE DOL'S REGIONAL
SYSTEM FOR PERSONNEL MANAGEMENT. THE MSHA FIELD OFFICES ARE SERVICED BY
ONLY 7 OF THE 10 DOL REGIONAL OFFICES DUE TO THE MAKEUP OF THE MSHA
FIELD STRUCTURE. THESE TWO ACTIONS NECESSITATED THE CLOSING OF OFFICES
IN DENVER AND PITTSBURGH WHICH HAD FORMERLY PERFORMED PERSONNEL AND
ADMINISTRATIVE SERVICES FOR ALL MSHA FIELD EMPLOYEES AS A CARRY-OVER
FROM THE MESA. IN JULY, 1979, THE MSHA'S MISSION AND FUNCTION
STATEMENTS WERE INCORPORATED INTO THE DOL'S MANUAL SERIES AND THE MSHA
BECAME SUBJECT TO MOST OF THE DOL'S PERSONNEL AND ADMINISTRATIVE
POLICIES, ALTHOUGH THE MSHA RETAINS ITS OWN MERIT PROMOTION PLAN AND
DIFFERENT WORK HOURS FOR ITS FIELD INSPECTORS. IN VIEW OF THE
FOREGOING, IS FOUND THAT THE MSHA HAS BECOME ADMINISTRATIVELY AND
ORGANIZATIONALLY INTEGRATED WITHIN THE DOL.
THE DOL'S INTERNAL LABOR-MANAGEMENT RELATIONS PROGRAM IS ADMINISTERED
BY ITS OFFICE OF LABOR-MANAGEMENT RELATIONS. THE RESPONSIBILITY FOR
ADMINISTERING THE EXISTING AGREEMENTS BETWEEN THE MESA AND THE AFGE
LOCALS WHICH HELD EXCLUSIVE RECOGNITION PRIOR TO THE TRANSFER HAS BEEN
TEMPORARILY DELEGATED TO A LABOR RELATIONS OFFICER IN THE MSHA
HEADQUARTERS. HOWEVER, THE DOL'S DIRECTOR OF LABOR-MANAGEMENT RELATIONS
RETAINS THE RESPONSIBILITY FOR NEGOTIATING ANY NEW AGREEMENTS.
THE RECORD ESTABLISHES THAT THE NUMBER OF UNITS AND CORRESPONDING
NEGOTIATED AGREEMENTS FOR WHICH THE DIRECTOR OF LABOR-MANAGEMENT
RELATIONS WOULD BE RESPONSIBLE WOULD BE LIMITED TO THREE, RATHER THAN
THE PRESENT SEVEN, IF A FINDING WERE MADE THAT THE MSHA EMPLOYEES
ACCRETED TO THE AFGE UNITS AS SOUGHT IN THESE PETITIONS. THE DIRECTOR
OF LABOR-MANAGEMENT RELATIONS TESTIFIED THAT IF ACCRETIONS WERE NOT
FOUND, THE HIRING OF ADDITIONAL PERSONNEL WOULD BE REQUIRED TO PROPERLY
SERVICE THE INCREASED NUMBER OF UNITS AND AGREEMENTS. HE ALSO TESTIFIED
THAT NEGOTIATING THE LAST AGREEMENT BETWEEN THE COUNCIL AND DOL CONSUMED
OVER 4,000 MAN HOURS, AND COST $63,000 IN PER DIEM, TRAVEL, MEETING ROOM
RENTAL, AND PRINTING EXPENSES. IT WAS ESTIMATED THE NEGOTIATIONS OF
SEPARATE AGREEMENTS FOR THE FOUR UNITS EXISTING IN MESA PRIOR TO THE
TRANSFER WOULD INVOLVE A SIMILAR COST IN TIME AND MONEY DUE TO THE
NECESSITY OF TRAVEL AND PER DIEM COSTS BETWEEN WASHINGTON, D.C., AND
THEIR FIELD LOCATIONS. IN ADDITION, IT WAS NOTED THAT A GREAT DEAL OF
ADDITIONAL SUPERVISORY TRAINING WOULD BE REQUIRED DUE TO THE DIFFERENT
SCOPE OF BARGAINING IN EACH UNIT AND THE DIFFERENT TERMS AND CONDITIONS
OF EMPLOYMENT NEGOTIATED IN EACH UNIT.
THE FEDERAL LABOR RELATIONS COUNCIL HAS HELD APPROPRIATE UNIT
DETERMINATIONS UNDER THE EXECUTIVE ORDER MUST EQUALLY SATISFY EACH OF
THE 10(B) CRITERIA (I.E., COMMUNITY OF INTEREST AMONG THE EMPLOYEES,
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS) IN A MANNER
FULLY CONSISTENT WITH THE PURPOSES OF THE ORDER, INCLUDING THE DUAL
OBJECTIVES OF PREVENTING FURTHER FRAGMENTATION OF BARGAINING UNITS AS
WELL AS REDUCING EXISTING FRAGMENTATION, THEREBY PROMOTING A MORE
COMPREHENSIVE BARGAINING UNIT STRUCTURE. DEPARTMENT OF THE ARMY, FORT
MCPHERSON, GEORGIA, 5 FLRC 398, FLRC NO. 76A-82(1977). /4/ IT IS THE
CONCLUSION OF THE AUTHORITY THAT THE ACCRETIONS SOUGHT IN THE INSTANT
CASES SATISFY THE THREE CRITERIA OF SECTION 10(B) UNDER THE RATIONALE
ADOPTED IN FORT MCPHERSON.
THUS, IN VIEW OF THE FOREGOING AND NOTING ESPECIALLY THE ABOVE
FINDING THAT THE MSHA HAS BEEN ORGANIZATIONALLY AND ADMINISTRATIVELY
INTEGRATED WITHIN THE DEPARTMENT OF LABOR, AND THAT THE EMPLOYEES OF THE
MSHA SHARE WITH ALL DOL EMPLOYEES A COMMON MISSION, ESSENTIALLY THE SAME
PERSONNEL AND ADMINISTRATIVE POLICIES AND PRACTICES AS ADMINISTERED BY
THE DOL REGIONAL OFFICES, AND THE SAME PAYROLL, LEAVE AND OTHER
ACCOUNTING PRACTICES, A COMMUNITY OF INTEREST IS FOUND TO EXIST BETWEEN
THE EMPLOYEES SOUGHT TO BE ACCRETED AND THOSE IN UNITS ALREADY
ESTABLISHED AT THE DOL. FURTHER UNDERSCORING THIS COMMUNITY OF
INTEREST, IT IS NOTED THE UNDERLYING REASON FOR THE CONGRESSIONALLY
DIRECTED TRANSFER WAS TO PLACE THE FUNCTION OF MINE SAFETY AND
INSPECTION IN AN AGENCY WITH A MISSION MORE COMPATIBLE TO THAT FUNCTION,
A GOAL ACCOMPLISHED WHEN THE FUNCTION WAS TRANSFERRED TO THE DOL. IN
SATISFACTION OF THE OTHER CRITERIA OF SECTION 10(B), IT IS NOTED THE
ACCRETIONS SOUGHT WILL SUBSTANTIALLY REDUCE THE NUMBER OF UNITS, AND
AVOID THE POTENTIAL FOR FURTHER FRAGMENTATION WITHIN THE DOL. FINDINGS
OF ACCRETIONS HEREIN ALSO WILL PROMOTE MORE COMPREHENSIVE BARGAINING AT
THE SAME LEVEL TO WHICH THE DOL HAS DELEGATED ITS LABOR RELATIONS
RESPONSIBILITY. THEREFORE, THE ACCRETIONS WILL CLEARLY PROMOTE BOTH
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, IT
SHALL BE ORDERED THAT THE MSHA HEADQUARTERS EMPLOYEES BE ACCRETED INTO
THE UNIT REPRESENTED EXCLUSIVELY BY LOCAL 12 AND THAT THE MSHA FIELD
EMPLOYEES BE ACCRETED INTO THE UNIT REPRESENTED EXCLUSIVELY BY THE
COUNCIL.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT AT THE DEPARTMENT OF LABOR SOUGHT
TO BE CLARIFIED HEREIN, FOR WHICH LOCAL 12, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, WAS RECOGNIZED ON AUGUST 29, 1962, BE,
AND IT HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT ALL ELIGIBLE
EMPLOYEES OF THE MINE SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT OF
LABOR.
IT IS HEREBY ORDERED THAT THE UNIT AT THE DEPARTMENT OF LABOR SOUGHT
TO BE CLARIFIED HEREIN, FOR WHICH THE NATIONAL COUNCIL OF FIELD LABOR
LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, WAS
RECOGNIZED ON NOVEMBER 5, 1965, BE, AND IT HEREBY IS, CLARIFIED BY
INCLUDING IN SAID UNIT ALL ELIGIBLE EMPLOYEES OF THE MINE SAFETY AND
HEALTH ADMINISTRATION, DEPARTMENT OF LABOR.
ISSUED, WASHINGTON, D.C., MAY 23, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASES ARE DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASES HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ THE SUPERINTENDENT OF THE NATIONAL MINE HEALTH AND SAFETY
ACADEMY, LOCATED IN BECKLEY, WEST VIRGINIA, ALSO APPEARED ON THE
ORGANIZATION CHART AT THE ASSISTANT ADMINISTRATOR LEVEL. HOWEVER,
NEITHER HE, NOR THE ACADEMY, WAS INVOLVED IN THE TRANSFER TO THE DOL.
/3/ A DISPUTE IS PENDING BEFORE THE AUTHORITY OVER THE UNIT STATUS OF
THE WASHINGTON, D.C., METROPOLITAN AREA FIELD EMPLOYEES OF THE DOL WHICH
BOTH LOCAL 12 AND THE COUNCIL CLAIM TO REPRESENT. THE PARTIES
STIPULATED AT THE HEARING, HOWEVER, THAT AS THERE ARE NO FIELD EMPLOYEES
OF THE MSHA IN THE WASHINGTON, D.C., METROPOLITAN AREA, THE DISPUTE
SHOULD NOT SERVE AS A BARRIER TO RESOLUTION OF THE UNIT STATUS OF THE
EMPLOYEES IN QUESTION HEREIN.
/4/ FOR APPLICATION OF SUCH PRECEDENT UNDER THE AUTHORITY, SEE
NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, AND U.S. DEPARTMENT OF THE
NAVY, 1 FLRA NO. 109 (SEPTEMBER 20, 1979).