17:0058(16)UC - Justice and AFGE -- 1985 FLRAdec RP

 17 FLRA No. 16
 
 U.S. DEPARTMENT OF JUSTICE
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Petitioner
 
                                            Case No. 3-UC-17
 
                            DECISION AND ORDER
 
    Upon a petition duly filed with the Federal Labor Relations Authority
 under section 7112(d) 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 this case, including the contentions of the
 parties, the Authority finds:
 
    The American Federation of Government Employees, AFL-CIO (AFGE) filed
 the instant petition seeking to consolidate 11 units of employees in the
 U.S. Department of Justice (Agency) which it represents exclusively.
 /1/ The units presently represented by AFGE and covered by the petition
 are set forth in the Appendix.  /2/
 
    AFGE describes the proposed consolidated unit as including the
 following existing bargaining units exclusively represented by AFGE:
 
          All professional and nonprofessional employees of the Bureau of
       Prisons and Prison Industries, Inc. (Federal Prison System (FPS));
        all nonprofessional employees of the Immigration and
       Naturalization Service, including the Border Patrol (INS);  all
       nonprofessional employees of the U.S. Marshals Service (USMS);
       all professional and nonprofessional employees of the Board of
       Immigration Appeals (BIA);  all nonprofessional employees of the
       Community Relations Service (CRS);  all professional and
       nonprofessional employees of the U.S. Parole Commission (USPC);
       and all nonprofessional employees of the U.S. Attorney Offices in
       the Federal District of New Jersey and the Federal Western
       District of New York.
 
    The Agency contends that the proposed consolidated unit is not
 appropriate because it does not meet the three criteria for an
 appropriate unit set forth in section 7112(a)(1) of the Statute.  /3/ In
 addition, the Agency contends that the petition should be dismissed
 because the proposed consolidated unit includes employees of the United
 States Parole Commission, which is an independent agency attached to the
 Agency solely for administrative purposes.
 
    The Agency is a department in the Executive branch under the overall
 direction of the U.S. Attorney General and his Deputy.  According to the
 record in this case, the Agency has a total of approximately 56,000
 employees organized into 6 "bureaus," 14 "offices," 1 "board" and 6
 "divisions." The "offices," "board," and "divisions" (OBDs) are
 collectively considered as a "bureau" for the purposes of administrative
 support such as personnel and labor relations functions, under the
 direction of the Assistant Attorney General for Administration (AAG/A).
 However, operational control and mission responsibility remains vested
 in the respective heads of each of these organizations.  Thus, the
 instant petition would include in the proposed consolidated unit 3 of
 the 6 established "bureaus" (FPS, INS and USMS), 3 of the 21
 organizations in the OBD (BIA, CRS and the 2 U.S. Attorney Offices,
 which are but a "fragment" of the 95 U.S. Attorney Offices comprising
 the Executive Office of U.S. Attorneys (EOUSA)) as well as USPC, an
 independent agency.  Such a unit would encompass approximately 17,000 of
 the Agency's 56,000 employees.  Organizationally, the FPS, INS, USMS,
 BIA, USPC and EOUSA report on program matters to the Attorney General.
 The CRS, on the other hand, reports directly through the Deputy Attorney
 General to the Attorney General.  As noted above, USPC was established
 in 1976 as an "independent agency" within the Agency, and was granted
 the authority for totally independent personnel and budget functions.
 /4/
 
    The missions differ among the various organizational components of
 the proposed consolidated unit.  For example, the mission of the INS is
 to administer and enforce immigration and nationality laws;  the mission
 of FPS is to guard Federal prisons and provide rehabilitation for
 prisoners;  the mission of the U.S. Attorney Offices is to represent the
 Federal Government in civil and criminal actions;  and the mission of
 CRS is to provide assistance in resolving disputes relating to
 discrimination.  As a consequence, the employees in each of the
 components of the proposed consolidated unit have job qualifications,
 duties and working conditions which are not related or equivalent to
 those of employees in other components.  /5/ For example, employees in
 the INS are concerned with the police activities of patrolling the
 nation's borders, finding illegal aliens, and resolving conflicts
 concerning appropriate nationality, while the employees in FPS are
 involved in guarding and rehabilitating Federal prisoners;  the
 employees of the U.S. Attorney Offices are primarily professionals
 representing the interests of the Federal government in both criminal
 and civil matters in various courts of law, while employees of the CRS
 are basically mediators in disputes concerning civil rights, whose
 purpose is to avoid litigation.  Thus, the employees in the various
 components have little in common in terms of working conditions,
 qualifications or duties due to the diverse missions and goals of each
 of the components.
 
    The record further establishes that there are no personnel or labor
 relations functions at the Attorney General-Deputy Attorney General
 level of the Agency.  Rather, each of the "bureaus" has been delegated
 full personnel and labor relations authority, which some exercise at the
 "bureau" level, and some redelegate to subordinate organizational
 levels.  /6/ Moreover, the USPC Chairman exercises full personnel and
 budgetary authority as a consequence of statutory authorization, /7/
 without the Attorney General being involved in any way.
 
    In Department of Transportation, Washington, D.C., 5 FLRA 646 (1981),
 the Authority dismissed petitions to consolidate units noting that
 section 7112(a)(1) of the Statute requires any unit found appropriate to
 conform to the three criteria established by that section-- a clear and
 identifiable community of interest among the employees in the unit, the
 promotion of effective dealings with, and the efficiency of the
 operations of, the agency involved.  The Authority further noted that
 section 7112(d) of the Statute, /8/ which provides for the consolidation
 of existing units into a single more comprehensive unit, requires that
 such consolidated unit meet the same three criteria required of any
 proposed unit.
 
    In subsequent decisions, the Authority, in making its determinations
 on the appropriateness of such proposed consolidated units, has
 considered several factors.  Primary among these factors, in determining
 whether there was a community of interest, were:  the degree of
 commonality and integration of the mission and function of the
 components involved;  the distribution of the employees involved
 throughout the organizational and geographical components of the agency;
  the degree of similarity in the occupational undertakings of the
 employees in the proposed unit;  and the locus and scope of personnel
 and labor relations authority and functions.  /9/
 
    The Authority finds that the employees in the proposed consolidated
 unit herein do not share a clear and identifiable community of interest.
  The record establishes that the proposed consolidated unit encompasses
 three of the six bureaus, fragments of the OBDs, which are
 organizationally treated as a "bureau," and an independent agency
 attached to the Agency for administrative purposes only.  Most of the
 employees in the proposed consolidated unit, representing about 31
 percent of the total work force of the Agency, have divergent career
 interests and working conditions, attributable to the diverse missions
 of their respective organizational components which are involved in the
 proposed consolidation.  Further, the record shows a minimal amount of
 interchange of employees among the various organizational entities
 involved herein, and the majority of job classifications and
 qualifications, as well as the terms and conditions of employment of the
 employees encompassed by the proposed consolidated unit, relate to the
 unique functions of the particular organizations in which they are
 employed.  Finally, the record shows that personnel and labor relations
 authority and functions have been delegated to the "bureau" level or
 below, and there does not presently exist any official or group of
 officials authorized to perform such functions Agency-wide.  In
 addition, in the case of the USPC, such functions are totally
 independent of the Agency and the Attorney General.  Under these
 circumstances, the Authority finds that the petitioned-for consolidated
 unit would not ensure a clear and identifiable community of interest
 among the employees involved.
 
    Nor can the Authority conclude that either of the two alternative
 consolidated units suggested by the AFGE at the hearing is appropriate.
 The first alternative unit is composed of FPS, INS, USMS, BIA, and CRS,
 eliminating from the proposed unit the USPC and the two U.S. Attorney
 Offices;  the second alternative unit is composed only of FPS, INS and
 USMS, eliminating, in addition to USPC and the two U.S. Attorney
 Offices, the BIA and the CRS.  The facts herein would not support a
 finding of appropriateness with respect to either alternative unit.
 Thus, in either alternative unit, the employees included would have
 divergent career interests and conditions of employment directly related
 to the wide variance in the missions of the organizations employing
 them.  Within either of the alternative units suggested, there is
 minimal interchange, and the job classifications and qualifications, and
 the general working conditions of the employees, are distinct and
 related to the unique functions of the organization in which they are
 employed.  Finally, as noted above, the personnel and labor relations
 functions of the organizations in either of the alternative units
 historically have been delegated to each component and, in some
 instances, redelegated to regional and installation levels.  In sum, the
 only principal factor in support of a finding of community of interest
 appears to be that all these employees are under the general policy
 direction of the Attorney General.
 
    Accordingly, the Authority finds that the proposed consolidated unit,
 and both of the proposed alternative consolidated units, are not
 appropriate for the purpose of exclusive recognition under the Statute,
 and will order that the petition be dismissed.  /10/
 
                                   ORDER
 
    IT IS ORDERED that the petition in Case No. 3-UC-17 be, and it hereby
 is, dismissed.  Issued, Washington, D.C. February 28, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
 UNIT #1 - Federal Prison System (FPS)
 
    Included:  All nonsupervisory GS professional and nonprofessional
 employees of the Bureau of Prisons and Federal Prison Industries, Inc.,
 Central Office.
 
    Excluded:  All supervisors, management officials, employees engaged
 in Federal personnel work in other than a purely clerical capacity,
 temporary employees on appointments NTE 90 days, confidential employees
 and guards as defined in Executive Order 11491.  UNIT #2 - FPS
 
    Included:  All employees, Class Act, Wage Board, and Professional, of
 the Bureau of Prisons and Federal Prison Industries, Inc., shall
 constitute the unit of recognition for exclusive recognition under
 Executive Order 10988.
 
    Excluded:  Any managerial executive, any employee engaged in Federal
 personnel work in other than a purely clerical capacity, both
 supervisors who officially evaluate the performance of employees and the
 employees whom they supervise.  All Central Office employees are
 excluded from the unit of recognition.  UNIT #3 - Immigration and
 Naturalization Service (INS)
 
    Included:  All nonsupervisory and nonprofessional employees in the
 Immigration and Naturalization Service.
 
    Excluded:  All employees assigned to Border Patrol Sectors.  UNIT #4
 - INS
 
    Included:  All nonprofessional employees assigned to Border Patrol
 Sectors, Service-wide.
 
    Excluded:  All supervisors, professionals, management officials, and
 employees engaged in Federal personnel work in other than a purely
 clerical capacity.  UNIT #5 - U.S. Marshals Service
 
    Included:  All nonprofessional employees of the U.S. Marshals Service
 world-wide including intermittent employees and term Deputies.
 
    Excluded:  Professional employees, confidential employees, temporary
 employees with no reasonable expectation of continuous employment,
 internal investigators, supervisors, management officials, guards as
 defined in the Order and Federal personnel workers in other than a
 purely clerical capacity.  UNIT #6 - Board of Immigration Appeals
 
    Included:  All nonsupervisory professional and nonprofessional
 employees at the Board of Immigration Appeals in Washington, D.C.
 
    Excluded:  All part-time students, employees engaged in Federal
 personnel work in other than a purely clerical capacity, management
 officials, supervisors and guards.  UNIT #7 - Community Relations
 Service
 
    Included:  All nonprofessional employees of the United States
 Department of Justice, Community Relations Service.
 
    Excluded:  All professional employees, management officials,
 confidential employees, employees engaged in Federal personnel work in
 other than a purely clerical capacity, and supervisors as defined in
 Executive Order 11491, as amended.  UNIT #8 - Executive Office of U.S.
 Attorneys (EOUSA)
 
    Included:  All nonprofessional (staff support) employees of the
 United States Attorney for the District of New Jersey.
 
    Excluded:  Professional, managerial, supervisory, and confidential
 employees, guards, and employees engaged in Federal personnel work in
 other than a purely clerical capacity.  UNIT #9 - EOUSA
 
    Included:  All nonprofessional employees of the Office of the U.S.
 Attorney for the Western District of New York.
 
    Excluded:  Professional employees, employees engaged in Federal
 personnel work in other than a purely clerical capacity, management
 officials, supervisors and guards as defined in the Executive Order.
 Also excluded are the Secretary to the U.S. Attorney, the Secretary to
 the First Assistant U.S. Attorney, the Administrative Clerk and all
 employees of the Buffalo Strike Force of the Organized Crime and
 Racketeering Section.  UNIT #10 - U.S. Parole Commission (USPC)
 
    Included:  All nonprofessional GS employees of the Board of Parole
 Headquarters except those excluded below.
 
    Excluded:  Professional employees, confidential employees, employees
 engaged in Federal personnel work in other than a purely clerical
 capacity, management officials, guards and supervisors as defined in
 Executive Order 11491.  UNIT #11 - USPC
 
    Included:  All professional GS employees of the Board of Parole
 Headquarters except those excluded below.
 
    Excluded:  Nonprofessional employees, confidential employees,
 employees engaged in Federal personnel work in other than a purely
 clerical capacity, management officials, guards and supervisors as
 defined in Executive Order 11491.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The petition filed by AFGE originally encompassed 15 units of
 exclusive recognition.  However, as a result of events occurring since
 that time, four units of employees in the Drug Enforcement
 Administration are no longer represented by AFGE, and they are no longer
 encompassed within the consolidated unit sought herein.  In addition,
 another unit of exclusive recognition involved herein, a nationwide unit
 of Border Patrol employees, was the subject of an RO petition filed by
 the International Brotherhood of Police Officers (IBPO).  United States
 Department of Justice, United States Immigration and Naturalization
 Service, 9 FLRA 253 (1982), enf. denied sub nom. U.S. Department of
 Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984).  Processing of the
 instant petition was delayed pending resolution of the question
 concerning representation.  Subsequently, IBPO withdrew its petition,
 and there is now no longer an impediment to further processing this
 petition.
 
 
    /2/ In addition, AFGE suggested at the hearing that if the Authority
 found its proposed consolidated unit inappropriate, it would accept one
 of two alternative units:  The first alternative unit would delete from
 the consolidation the unit at the U.S. Parole Commission and the units
 at the U.S. Attorney Offices in New York and New Jersey;  the second
 alternative unit would delete, in addition to the aforementioned units,
 the units at the Community Relations Service and the Board of
 Immigration Appeals.
 
 
    /3/ Section 7122(a)(1) provides:
 
          Sec. 7112.  Determination of appropriate units for labor
       organization representation
 
          (a)(1) The Authority shall determine the appropriateness of any
       unit.  The Authority shall determine in each case whether, in
       order to ensure employees the fullest freedom in exercising the
       rights guaranteed under this chapter, the appropriate unit should
       be established on an agency, plant, installation, functional, or
       other basis and 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(.)
 
 
    /4/ 18 U.S.C. 4201 - 4218 (1976).
 
 
    /5/ In addition, although a few classifications are common to all of
 the organizational components of the consolidated unit sought, most
 classifications in each component are unique to and reflect the mission
 of that component.
 
 
    /6/ For example, final decisions for all personnel and administrative
 actions are taken at the level of the Director of USMS, and for most of
 such actions at the level of the AAG/A for all OBDs.  On the other hand,
 the Director of FPS has redelegated this authority to Regional Directors
 and Wardens, and the Commissioner of INS has redelegated such authority
 to Regional Directors, and, in some instances, to District Directors.
 
 
    /7/ 18 U.S.C. 4204(a)(2) (1976).
 
 
    /8/ Section 7112(d) provides as follows:
 
          (d) Two or more units which are in an agency and for which a
       labor organization is the exclusive representative may, upon
       petition by the agency or labor organization, be consolidated with
       or without an election into a single larger unit if the Authority
       considers the larger unit to be appropriate.  The Authority shall
       certify the labor organization as the exclusive representative of
       the new larger unit.
 
 
    /9/ See, Headquarters, U.S. Army Materiel Development and Readiness
 Command, 13 FLRA No. 110 (1984);  U.S. Army Materiel and Readiness
 Command, 11 FLRA No. 36 (1983);  Department of the Navy, U.S. Marine
 Corps, 8 FLRA 15 (1982);  Air Force Logistics Command, United States Air
 Force, Wright-Patterson Air Force Base, Ohio, 7 FLRA 210 (1981);
 Department of Defense, U.S. Army, Corps of Engineers, 5 FLRA 677 (1981);
  Army and Air Force Exchange Service, Dallas, Texas, 5 FLRA 657 (1981).
 
 
    /10/ Inasmuch as all three criteria of section 7112(a)(1) of the
 Statute must be satisfied in order for the Authority to find that the
 proposed consolidated unit is appropriate, and a failure to satisfy any
 one of them must result in a finding that the unit sought is
 inappropriate, the Authority's finding that the unit sought herein fails
 to meet the community of interest criterion makes it unnecessary to
 address the other two criteria.  See Department of the Navy, Aviation
 Supply Office, 12 FLRA No. 92 (1983).