[ v19 p73 ]
19:0073(8)CA
The decision of the Authority follows:
19 FLRA No. 8
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, WASHINGTON, D.C. AND
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION X
SEATTLE, WASHINGTON
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 9-CA-30148
DECISION AND ORDER
The Administrative Law Judge issued her Decision in the
above-entitled proceeding finding that Respondent Department of Health
and Human Services, Region X, Seattle, Washington (the Activity), had
engaged in certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge found further that the
Respondents had not engaged in certain other unfair labor practices
alleged in the complaint, and recommended dismissal of those parts of
the complaint. Thereafter, the General Counsel filed exceptions to the
Judge's Decision and the Respondents filed an opposition to the
exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order only to the extent
consistent herewith.
The Judge found that the Activity violated section 7116(a)(1) and (5)
of the Statute by its refusal to bargain with the National Treasury
Employees Union (the Union) as to its Proposal 4 of December 22, 1982.
/1/ The Judge concluded that, since no claim was made that the proposal
was nonnegotiable, as infringing upon a reserved management right, the
issue would not be dealt with in her Decision. The Authority disagrees.
If, in fact, Union Proposal 4 is nonnegotiable or negotiable only at
the election of the Agency, the Activity's refusal to negotiate over
such proposal would not be in violation of section 7116(a)(1) and (5) of
the Statute.
The proposal in question appears to be specifically aimed at
non-bargaining unit employees and would allow such employees to compete
for bargaining unit positions based on their earlier transfer out of the
unit. It is well established that proposals are not within the duty to
bargain if they apply to employees or positions outside the bargaining
unit. See, e.g., American Federation of Government Employees, National
Council of Social Security Administration Field Operations Locals,
AFL-CIO and Social Security Administration, Office of Field Operations,
Baltimore, Maryland, 17 FLRA No. 6 (1985) (Union Proposal 5). Thus, the
Authority finds that management was under no obligation to negotiate
over this proposal.
Moreover, in the Authority's view, the above proposal which could
require management to consider and possibly fill vacancies without
regard to its personnel ceilings concerns a determination of the
"numbers, types and grades of employees or positions assigned" pursuant
to section 7106(b)(1) of the Statute. Specifically, to the extent that
this portion of the proposal presumes an obligation on management to
seek a waiver of its personnel ceilings in order to consider the
employees in question for such positions, it is integrally related to
the statutory right to determine the "numbers, types and grades of
employees or positions assigned" which is a matter negotiable only at
the election of the Agency. See, e.g., National Federation of Federal
Employees, Local 1650 and U.S. Forest Service, Angeles National Forest,
12 FLRA 611 (1983) (Union Proposal 2), where the Authority found that
part of Union Proposal 2 which would obligate management to attempt to
recall When Actually Employed (WAE) employees wherever funding was
available irrespective of whether management had decided to accomplish
the work using WAE employees concerned the numbers, types and grades of
employees or positions assigned and, thus, under section 7106(b)(1) of
the Statute, was negotiable only at the election of the Agency.
Accordingly, as Union Proposal 4 is negotiable only at the election of
the Activity and there is no statutory duty to bargain with the Union,
the Activity's refusal to negotiate on such matters does not violate
section 7116(a)(1) and (5) of the Statute.
Consequently, in agreement with the Administration Law Judge that the
Respondents did not violate section 7116(a)(1), (5) or (8) of the
Statute by terminating the dues assignments of employees transferred out
of the bargaining unit and by refusing to recognize the Union as their
exclusive representative, /2/ and consistent with the Authority's
findings above concerning the Activity's refusal to bargain concerning
Union Proposal 4, the Authority will order that the complaint herein be
dismissed in its entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-30148 be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 11, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 9-CA-30148
-------------------- ALJ$ DECISION FOLLOWS --------------------
Susan Callahan and
William J. McIntire
Attorneys for Respondents
Lucinda Bendat
Attorney for Charging Party
Stefanie Arthur
Attorney for General Counsel Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the "Statute", and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
Pursuant to charges filed by the Charging Party, on January 19, 1983,
and amended on June 15, 1983, the General Counsel of the Federal Labor
Relations Authority (hereinafter, the "Authority") investigated and, on
June 20, 1983 issued the complaint initiating this proceeding.
The complaint alleges that Region X of the Department of Health and
Human Services, in Seattle, Washington (hereinafter "Respondent
Seattle") has committed, and is committing unfair labor practices, in
violation of sections 7116(a)(1), (5) and (8) of the Statute, /3/ and
that the Department of Health and Human Services, Washington, D.C.
(hereinafter, "Respondent Headquarters"), by preventing Respondent
Seattle from fulfilling its bargaining obligations to the Charging Party
(also referred to here in as the "Union") violated, and is violating the
same statutory provisions.
The alleged violative acts are that certain bargaining-unit employees
at Respondent Seattle, in the Health Care Financing Administration
("HCFA") were transferred, pursuant to a decision of Respondent
Headquarters, to the Office of Health Financing Integrity ("OHFI") in
the Office of the Inspector General ("OIG"), at Seattle, and that
Respondent Seattle no longer recognizes them as a part of the bargaining
unit; has refused to bargain concerning the impact and implementation
of the transfer; and has failed to honor written dues assignments from
the transferred employees.
Respondents deny that unfair labor practices have occurred, and
alleges that no bargaining relationship exists between the Union and the
transferred employees.
A hearing was held on December 7, 1983, at Seattle, Washington. The
parties appeared, adduced evidence, and examined witnesses. Briefs were
received from the General Counsel, on February 9, 1984 and from the
Respondents on February 13, pursuant to an order extending the time for
filing briefs until February 9, for good cause shown, upon an unopposed
motion of the General Counsel. The brief on behalf of Respondents was
dated and mailed on February 9, from Seattle.
Based upon the record made in this proceeding, my observation of the
demeanor of the witnesses, and the briefs, I enter the following
findings and conclusions and recommend the entry of the following order.
Findings of Fact /4/
1a. On May 9, 1979, the Union was certified by the Authority as the
exclusive representative of the following unit:
Included: All nonprofessional employees of the Regional Office
of the Department of Health, Education and Welfare, Region X,
Seattle, Washington.
Excluded: Professional employees, employees engaged in federal
personnel work in other than a purely clerical capacity,
management officials, and supervisors as defined in the Act.
The Department of Health, Education and Welfare is now the Department of
Health and Human Services ("HHS").
b. The list of employees eligible to vote in the election leading to
the certification was prepared by Respondent in late April or early May
of 1979, and was reviewed with the Union and representatives of the
Authority. No one objected to any of the exclusions. Among the
excluded were employees of the Audit Agency and Office of
Investigations, including a clerk and a secretary. See TR 139. The
list was used to send out the mail ballots, by which the election was
conducted. The Audit Agency and the Office of Investigations are a part
of the OIG, and were at the time of the election.
2a. As of October 5, 1980, Respondent Seattle and Chapter 215 of the
Union became parties to a collective bargaining agreement. Five
management officials signed for Region X, none of whom were the
Secretary, Under Secretary of HHS, or an official of the OIG.
b. Article 1, Section 1 of the agreement, the "Recognition and
Coverage" provision, provides as follows:
The Department of Health and Human Services (HHS), Region X,
hereinafter known as the employer, recognizes the National
Treasury Employees Union (NTEU), hereinafter known as the union,
as the exclusive representative of the following employees:
All nonprofessional employees of the Regional Office of the
Department of Health and Human Services, Region X, Seattle,
Washington.
Excluded from this group are the following:
Professional employees, management officials, supervisors,
confidential employees, employees engaged in federal personnel
work in other than a purely clerical capacity, and employees of
the Audit Agency.
See Joint 1(b) of Stip. 2, Jt. 1.
c. Chapter 215 bargained over the exclusion of the Audit Agency.
There was no discussion with Chapter 215 over the exclusion or inclusion
of the Office of Investigations.
d. Employees of the Regional Service Delivery Assessment Office were
in the bargaining unit prior to October 3, 1982. They were subsequently
transferred to the OIG. The Union was notified of the transfer, and
that the employees of that office would no longer be in the bargaining
unit. No objection was made by the Union.
e. Article 56 of the agreement contains provisions and procedures
governing voluntary withholding from the pay of unit employees of
regular, periodic dues to be forwarded to Chapter 215. Section 4D of
Article 56 provides that Respondent Seattle will notify the employee,
and Chapter 215, when an employee is not eligible to enroll in the
automatic dues withholding program because the employee is not included
"in the exclusively recognized unit on which the agreement is based."
See page 96 of Jt. 1(b).
3. At all times since December 5, 1977, it has been the policy of
Respondent Headquarters that OIG employees are excluded from the
collective bargaining activities provided for in Executive Order 11491
and its successor, the Statute. /5/ See Joint 1(f) to Stip. 7 to Jt. 1.
4. As of January 9, 1983, no labor organization has ever been
recognized or certified as the exclusive representative of any OIG
employee.
OIG
5a. The OIG was created by an Act of Congress passed on October 15,
1976, P.L. 94-505 (hereinafter, the "IG Act"). See Joint Exh. 1(i) to
Stip. 12, Jt. 1. Its mission is to promote economy and efficiency, in
HHS, through the elimination and reduction of fraud, waste and abuse.
b. The Inspector General ("IG") is appointed by the President of the
United States and can only be removed from office by the President after
notification in writing to the Senate. He reports directly to the
Congress.
Although copies of his reports go first to the Secretary of HHS, the
Secretary cannot change them.
c. The IG Act provides for independent authority for the IG, to
insure that this officer is immune from departmental or management
pressures. The IG Act provides that the IG be under the general
supervision of the Secretary of HHS or, to the extent such authority is
delegated, to the Under Secretary, but not under the control of, or
subject to supervision by, any other officer of HHS. He has independent
personnel authority, and authority for oversight of all HHS programs,
unlike any other component of HHS. The Secretary of HHS is required, by
the IG Act, to provide the IG with appropriate and adequate office space
at central and field offices, together with such equipment, office
supplies, and communication facilities and services as may be necessary
for the operation of such offices.
d. The OIG, headed by the IG and a Deputy IG, is divided into an
office of Investigations ("OI"); an Office of Program Inspections
("OPI"); an Office of Audit ("OA"); and the Office of Health Financing
Integrity ("OHFI"), the office into which the employees here involved
were transferred. Regional Directors of the OIG direct the field
operations. At Seattle, the OHFI is divided into a Case Development
Division and a Program Inspection Division.
e. Employees assigned to the OIG are subject to an OIG Career Board
created on September 27, 1982. The Career Board controls promotions and
awards for employees assigned to the OIG. In February 11, 1982, OIG
employees were placed in one nation-wide competition area, which is
separate from the competitive areas for other components of HHS.
f. There are more training opportunities open to employees of the
OIG, through an OIG training center maintained in Atlanta.
Respondent Seattle
6a. Respondent Seattle is organized into four operating divisions
and various offices. The four operating divisions are: HCFA; the
Public Health Service; the Office of Human Development Services; and
the Social Security Administration ("SSA"). Each operating division
reports to a headquarters office in Baltimore with respect to program
responsibilities. The Regional Director for Region X has coordination
and oversight responsibility for the employees in the divisions, as well
as over employees in the Offices of Civil Rights and General Counsel.
He has direct operational authority over the offices of Public Affairs,
and Intergovernmental and Congressional Affairs and the Regional
Administrative Support Center, which functions as a personnel office.
He provides administrative support only for the OIG, at Seattle.
b. The Regional Director of Region X processes personnel actions for
the operating divisions, but does not initiate them.
c. The bargaining unit of Chapter 215 of the Union includes
employees of the operating divisions who work at the Seattle office of
HHS. See TR 49. Respondent Seattle's Labor Relations Office has been
delegated authority to negotiate with the Union on behalf of the
operating divisions. It has never been delegated such authority from
the IG.
HCFA
7. Prior to January 9, 1983, the HCFA operating division at Seattle
was composed of three branches-- Program Integrity ("PI"); Program
Validations ("PV"); and Quality Control ("QC"). QC is still a part of
HCFA, and deals with its day-to-day operations. The PI and PV branches,
now transferred to the OIG, dealt with oversight of contractors and
providers of health care services for HCFA, and focussed on fraudulent
and abusive practices. See TR 180. The functions of the PI and PV
branches overlapped significantly with those of the OIG's Office of
Audit (formerly known as the Audit Agency) and Office of Investigations.
See TR. 188.
Transfer of HCFA Functions of OIG
8. Because of this overlap, the national offices of HCFA and OIG
agreed to transfer the functions of HCFA's PI and PV branches to the
OIG, into a division called OHFI. The transfer was effected on January
9, 1983. This agreement was reached on December 10, 1982. A problem
eliminated by the transfer was that critical reports prepared by the PI
and PV branches went through a regional manager who would be responsible
for the faults found, thus eroding the independence of the review to
headquarters.
Effect of the Transfer on Employees
9a. On or about January 9, 1983, fourteen employees assigned to the
PI and PV branches of HCFA, at Seattle, were transferred or reassigned
to OHFI, in the OIG's Seattle field office. Two were secretaries;
eight were program analysts; one was a program integrity assistant;
and the rest were management officials.
b. The position titles, pay plan, series, grade, salary, position
number, and duty station of the transferred or reassigned employees
remained unchanged after their transfer or reassignment to OIG at
Seattle.
c. Two transferred program analysts testified about their jobs,
subsequent to the transfer. They established that their first and/or
second line supervisors transferred to the OIG with them. Their duties
have, thus far, remained basically the same, and they operate under the
same position descriptions. /6/ Their day-to-day contact with HCFA
employees remains the same, but is more formalized. They now work more
closely with OIG employees in the Office of Audit and Investigation, and
now have free access to their files. There is now more emphasis placed
on developing and writing up sanction cases involving fraud and abuse by
health care providers. Ever since the transfer, they have had the new
duty of investigating HHS employee misconduct cases. However, as of the
time of the hearing, only supervisors had received training for this new
duty; and the analysts had handled no such cases. Only one employee
misconduct case has developed in Region X; and it has not yet been
assigned for investigation. The program analysts now have authority to
take signed statements, under oath. In August 1983, the program
analysts in the Case Development Division were trained for and assumed
new duties of working on civil monetary penalty cases.
d. The hours of work of the transferred and reassigned employees
have remained the same, by direction of the Regional Director of the
OHFI, at Seattle, to the OHFI staff.
e. Their physical location, in contiguous space with HCFA employees,
has remained the same. However, the OIG has a policy of colocating all
OIG field staff and has endeavored, unsuccessfully, to do so at Seattle.
The endeavour is now on the "back burner" (TR 360) because of a
realignment potential for OIG components in Seattle and San Francisco.
f. Region X's personnel office continues to service the transferred
and reassigned employees, in some areas, such as handling travel and
life insurance matters; arranging defensive driving courses; and
funding and approving training requests. In January 1984, pursuant to
an August 1983 request of the IG, this situation is due to change; and
the personnel needs of the OHFI employees in Seattle will be serviced
entirely from headquarters. From January 9, 1983, until some time
between August 12 and October 1, Respondent Seattle handled appointing,
classification, employee relations (but not labor relations), benefits,
and training for the OIG staff in Seattle. See R 19 and TR 235-236.
g. The transferred and reassigned employees have been issued new
identification-type cards, since the transfer.
h. Since the transfer, the OIG has issued new review plans and
instructions dealing with investigations of health care providers.
i. Program analysts in the OHFI now evaluate how HCFA performs its
responsibilities. When serving as program analysts for HCFA, they made
recommendations for changes in HCFA policies and procedures; but their
recommendations were subject to internal HCFA review and change.
j. Immediately upon the transfer or reassignment to OHFI, employees
became subject to the different promotion and award system and the
different competitive area applicable to the OIG employees.
k. The Inspector General concedes that the "primary responsibility"
of his OHFI staff is to uncover fraud and abuse among health care
providers and contractors, which was also the "main thrust" of this
staff when it was assigned to HCFA. See TR 249 and 253-254. He sees
the "fundamental change" as being that his OHFI staff no longer reports
through the "regional bureaucracy;" and that the OHFI looks at how well
HCFA is performing its functions. See TR 181-182 and 196.
10. The inspections by the OHFI staff are "very much akin" to those
of the Office of Audit (TR 272), but not as thorough.
Bargaining Over the Transfer
11. By a letter dated September 15, 1982, the Labor Relations
Officer of Respondent Seattle, advised the Steward of Chapter 215 of the
Union of the transfer of certain HCFA functions to OIG; that the
transfer had to be effected January 9, 1983; and that employees
occupying positions that had been identified as transferring with the
function would be transferring to positions outside of the bargaining
unit "in that the OIG is not included in the bargaining unit." See Joint
Exh. 1(h) to Stip. 9 of Jt. 1.
12. Twelve of the transferred employees were included in the
bargaining unit represented by Chapter 215, and four were dues-paying
members. At all times material herein, the bi-weekly dues have been
$4.70.
13. Since January 9, 1983, Respondent Seattle has excluded employees
transferred or reassigned to the OHFI from Chapter 215's bargaining
unit, and has not recognized or dealt with Chapter 215 as the exclusive
representative of such employees.
14. Effective January 23, 1983, Respondent Seattle terminated the
dues assignments of the employees transferred or reassigned to OIG, and
has not transmitted their dues to Chapter 215.
15a. On November 5, 1982, Chapter 215, formally requested
"negotiations for all aspects of the proposed transfer, including the
method of the change and prospective P.D.'s." See GC 15. In the same
letter, Chapter 215 expressed its view that all transferred DQC
employees would remain in the bargaining unit.
b. The Regional Administrator of HCFA replied to Chapter 215's
request, on November 16, and stated, inter alia, that Don Clifford,
Chief of Region X's Labor Relations Branch had suggested that any
questions concerning the transfer and bargaining-unit coverage be
referred to him.
16. Chapter 215, on December 10, 1982, requested negotiations over
the proposed transfer, to Mr. Clifford, and asked for a copy of the
national agreement between HCFA and the OIG, and copies of the HCFA and
OIG floor plans for the proposed space allocations.
17. On December 15, 1982, Mr. Clifford officially notified the Union
of the transfer, to be effected by January 9, 1983, and that the
transferred employees would be outside the bargaining unit. See Joint
Exh. 1(h) to Stip 9 of Jt. 1.
18. On December 20, 1982, HCFA's Regional Administrator sent to
Chapter 215, a copy of the requested national agreement and informed it
that, at present, there were no plans to physically relocate those HCFA
staff members that would remain with HCFA. He promised to keep the
Union informed of any plans for organization placement and relocation of
retained functions.
19. On December 22, 1982, Chapter 215 wrote to Mr. Clifford in
response to his letter of December 15 Chapter 215 reiterated its
position that the transferred employees should remain in the bargaining
unit and if the agency had any questions about this, it should file a
unit clarification petition. The letter also presented nine bargaining
proposals, one of which (#4) provided that: "These employees (HCFA ones
to be transferred) will be able to compete for HCFA positions for one
year after the transfer regardless of HCFA ceilings." See GC 20.
20. On December 27, 1982, the Regional Personnel Officer replied to
the December 22 letter of Chapter 215. He declined to negotiate on six
proposals, including #4, (s)ince employees of the Office of Inspector
General have never been included in the bargaining unit." See GC 21. He
informed Chapter 215 that one proposal (that performance appraisals for
1982 for transferred employees be completed by current supervisors) was
being implemented. As to two others (concerning RIF procedures), he
stated that no effects of a RIF were anticipated and so they were
"inappropriate." See GC 21.
21. At this point, Chapter 215 ceased its attempt to negotiate and
resorted instead to the filing of an unfair labor practice charge.
22. Negotiations did occur with respect to those 17 employees who
remained with HCFA, after the transfer or reassignments of the others to
the OHFI in the OIG.
23. It was admitted by Respondents that, at all times material
herein, Respondent Headquarters has been and is an agency, within the
meaning of Section 7103(a)(3) of the Statute; that Respondent Seattle
has been and is a subcomponent and agent of Respondent Headquarters, and
also an agency within the meaning of Section 7103(a)(3); and that the
Union has been and is a labor organization, within the meaning of
Section 7103(a)(4) of the Statute.
Discussion and Conclusions
I. The General Counsel has not established, by the preponderance of
the evidence, /7/ that the HCFA employees transferred to the OHFI, in
the Office of Inspector General, on or about January 9, 1983, remained a
part of the certified bargaining unit.
The certified bargaining unit includes "employees of the Regional
Office . . . Region X." See finding 1a. Prior to the transfer here at
issue, employees of the OIG have not been treated by management, or
labor, as members of the unit. See findings 1b; 2b, c and d; 3; and
6c, above.
The OIG is a discrete organization at HHS, only under the general
supervision of the Secretary of HHS and, as to delegated authorities,
the Under Secretary, but under no other HHS official. By the
legislation creating this Office, the Secretary is required to furnish
certain administrative support to the OIG such as office space in field
offices. But the IG has independent personnel authority and has never
delegated authority to Respondent Seattle to negotiate with a union on
his behalf. See findings 5 and 6c, above.
Pursuant to his independent personnel authority, the IG, in 1982,
created his own Career Board, which controls promotions and awards for
OIG staff. Also in 1982, OIG staff became part of one nationwide
competitive area, separate from that of other HHS employees. See
finding 5e, above.
Immediately upon transfer or reassignment of the HCFA employees to
the OIG, certain changes occurred in their responsibilities and working
relationships. As part of the OIG, they began to work more closely with
the Offices of Audit and Investigation and have free access to their
files. As part of the OIG, they immediately assumed oversight
responsibilities for their former co-workers and organization, with a
statutory independence to criticize and recommend changes, and to take
signed statements, under oath, when conducting investigations. See
findings 5b, 8, and 9c, above.
Immediately upon transfer or reassignment, the employees became
differentiated from their former co-workers in HCFA in a number of
significant respects, such as coming under a different promotion and
award system and entering into a different competitive area. See
finding 9, above.
All of the above indicates that, upon transfer or reassignment, the
former HCFA employees ceased to be employees of Region X and, as such,
included in the bargaining unit represented by the Union. /8/
The General Counsel argues that reliance should not be placed upon a
finding that the IG is an independent entity within HHS, "in light of
the uncontroverted fact that the existing bargaining unit, whose
appropriateness is not in question, itself consists of an amalgamation
of independent operating divisions and offices, each with its own
headquarters and lines of authority." See GC Br. 14 and also 18-19.
This is a salient point. However, the OIG still stands out as unique in
its independence, which is necessary for the accomplishment of its
mission, including oversight of both HHS personnel and HHS policies and
procedures. No other operating division or office was shown, on this
record, to have this mission. No other was shown to have a tradition of
exclusion from the bargaining unit. No other was shown to have a
separate Career Board and competitive area for its staff.
The General Counsel argues that the "transferred employees continued
to share a community of interest with other employees in the bargaining
unit." See GC Br. 14 and see also 20-23. True, they continue to occupy
space adjacent to their former HCFA co-workers, and share servicing by
the same personnel office. But the latter factor has probably already
changed by now (see finding 9f, above); and the former is merely
coincidental and due to the fact that the OIG has been unable to secure
other space for them. See finding 9e above. True, they work the same
hours as others in the Seattle office; but this is so only at the
direction of the Regional Director of the OHFI of the OIG, at Seattle.
See finding 9d, above. True, they continue to work under the same first
and second-time supervisors; but this is so only because the
supervisors transferred with them. See finding 9c, above. True, they
continue to have day-to-day dealings with HCFA employees; but these
dealings are now more formalized, and probably more strained since, as
OHFI employees, they now are in a position to investigate and report
misconduct by HCFA staff. True, their position descriptions were still
the same, as of the date of the hearing; but this too has probably
changed by now. See finding 9c and footnote 4 thereto, above.
The General Counsel places too much stress upon the delay of the OIG
in effectuating new position descriptions, new duties, colocation of OIG
staff at Seattle, and personnel servicing out of headquarters instead of
Region X. See GC Br. 20-21. Reorganizations of the type here at issue
usually encounter transition problems and delays. The delays, however,
do not, in and of themselves, constitute convincing proof that the
transferred and reassigned employees remained a part of the Region X
staff covered by the certified bargaining unit.
More significant, in terms of community of interest, is that the
transferred and reassigned employees went under a different and
already-established promotion and award system and into a different,
already-established competitive area, and were placed in positions where
they have investigative responsibilities over any misconduct cases that
may arise as to employees in the bargaining unit, one of which has
already arisen, at Seattle. Compare International Association of
Machinists and Aerospace Workers, Local 830, AFL-CIO, 6 FLRA 480 (1981),
where the Authority did not find that employees should be included in a
unit just because they shared, with other unit employees, the same
location, car pools, cafeterias, parking, various station-wide
facilities, and use of the same personnel office.
The General Counsel cites cases for the proposition that
"(h)istorically, such employees (ones who review work of others) have
been included in bargaining units with the employees they review." See
GC Br. 24-25. None, however, involved employees whose duties encompass
investigating other bargaining-unit employees for misconduct and taking
signed statements from them, given under oath.
In point of fact, having OHFI employees in the same bargaining unit
as HCFA employees could create a conflict of interest, in that OHFI
employees have the role of internal policemen, vis-a-vis HCFA employees.
Thus, the Union's bargaining stances might not be able to accommodate
both interests.
The General Counsel finally argues that "inclusion of the transferred
employees in the bargaining unit would promote effective dealings and
efficient operations of the agency." See GC Br. 27. The only example
cited is that bargaining-unit employees, through negotiations, might
obtain a compressed work week or a modified flexitime schedule, thereby
making necessary HCFA resources not available to OHFI employees on
certain days or at certain times. If such a problem developed, however,
the Regional Director of OHFI would have authority to readjust the hours
of his staff. See R 9. Furthermore, the same type problem would occur
if the OHFI employees were included in the bargaining unit, since they
work closely with the OIG's field staff, in the Offices of Audit and
Investigation, and rely upon their files and assistance.
Indeed, in view of the fact that the OIG has no other employees in a
bargaining unit (see finding 4, above), it cannot be said to promote
"efficient dealings" and "efficient operations," in the OIG, for there
to be one set of rules for the employees of OHFI, at Seattle, and
another set for all the rest of OIG employees, particularly since all
OHFI employees share the same mission of oversight of HHS programs and
work closely together to combat fraud, waste and abuse in them.
Moreover, there is no one official in Seattle able to negotiate with
the Union on matters affecting OHFI employees and the other employees
located at Seattle and represented by Chapter 215. See International
Association of Machinists and Aerospace Workers, Local 830, AFL-CIO and
Department of Defense, Department of the Navy, U.S. Naval Ordnance
Station, Louisville, Kentucky, 6 FLRA 480 (1981) where the Authority
held this to be one factor which "would not foster effective dealings or
efficiency of operations." Id at 483.
The above considered, it is concluded that Respondent did not commit
unfair labor practices by revoking the dues assignments of employees
transferred to the OHFI, in January 1983, and by failing to recognize
the Union as their exclusive representative, since the transfers.
II. The General Counsel has established, by the preponderance of the
evidence, that an unfair labor practice was committed by failure to
negotiate with the Union, prior to the transfers in January 1983.
On December 22, 1982, Chapter 215 of the Union presented number of
bargaining proposals to Respondent Seattle. See finding 19, above. One
(#4) provided that HCFA employees to be transferred to the OIG would be
able to compete for HCFA positions, for one year after the transfer,
regardless of HCFA ceilings. On December 27, Respondent Seattle
declined to negotiate this proposal because it involved OIG employees.
See finding 19, above. /9/ In fact, at the time of the refusal, the
proposal involved HCFA employees who were in the bargaining unit. The
fact that they would be transferring out, shortly, and the fact that the
proposal would have an operative effect after their transfer, did not
automatically suspend the bargaining obligations of Respondent Seattle.
Respondents have ignored this issue, in both the brief and opening
argument made in this case, even though it is raised in the complaint
and was argued by Counsel for the General Counsel in her opening
argument. See TR 14 and 22. This may represent a tacit admission that
Respondent Seattle erred in not negotiating proposed #4. In any event,
I conclude that it did.
III. In view of the above resolutions of the issues, it is deemed
unnecessary to consider others raised by the parties.
Ultimate Findings and Recommended Order
1. Respondents did not commit unfair labor practices by terminating
the dues assignments of, and refusing to bargain with the Union on
behalf of employees transferred from HCFA to the OHFI of the OIG, as of
the dates of their transfers.
2. Respondent Seattle did commit an unfair labor practice by
refusing to bargain with the Union over proposal #4, submitted on
December 22, 1982.
Accordingly, and pursuant to 5 U.S.C. 7118 and 5 CFR 2423.26, it is
hereby ordered that the Respondent Seattle shall:
1. Cease and desist from:
(a) Refusing or failing to bargain with Chapter 215 of the
Union on its proposal #4 of December 22, 1982, to the extent
consistent with law and regulation.
(b) In any like or related manner, refusing or failing to
bargain with Chapter 215 of the Union.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request, and to the extent consistent with law and
regulation, bargain with Chapter 215 of the Union over proposal
#4, submitted on December 22, 1982.
(b) Post at its Seattle District Office, copies of the attached
Notice. Copies of said Notice, to be furnished by the Regional
Director for Region IX of the Authority, shall be signed by an
appropriate official of Respondent's Region X and posted by him
immediately upon receipt, and remain posted for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said Notices are not altered,
defaced, or covered by any other material.
(c) Notify the Authority's Regional Director for Region IX, in
writing, within 30 days from the date of this Order, as to what
steps it has taken to comply herewith.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: March 27, 1984
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to bargain with Chapter 215 of the National
Treasury Employees Union over its proposal #4, submitted on December 22,
1982, and involving the rights of HCFA employees about to be transferred
to the OHFI, to the extent consistent with law and regulation. WE WILL
NOT in any like or related manner refuse to bargain with Chapter 215.
WE WILL, upon request, bargain with Chapter 215 over its proposal #4 of
December 22, 1982, to the extent consistent with law and regulation.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature) This Notice must remain posted for
60 consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice of compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region IX, whose address is 530
Bush Street, Suite 542, San Francisco, California 94108 and whose
telephone number is: (415) 556-8106.
--------------- FOOTNOTES$ ---------------
/1/ Proposal 4 states:
These employees will be able to compete for HCFA positions for
one year after the transfer regardless of HCFA ceilings.
/2/ See Department of Health and Human Services, Washington, D.C. and
Department of Health and Human Services, Region VII, Kansas City,
Missouri, 16 FLRA No. 85 (1984).
/3/ Section 7116 of the Statute provides, in pertinent part, that:
(a) For the purpose of this chapter, it shall be an unfair labor
practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; (or) .
. .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter; . . . (or)
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
Section 7115 of the Statute provides, in pertinent part, that:
(a) If an agency has received from an employee in an appropriate unit
a written assignment which authorizes the agency to deduct from the pay
of the employee amounts for the payment of regular and periodic dues of
the exclusive representative of the unit, the agency shall honor the
assignment and make an appropriate allotment pursuant to the assignment.
Any such allotment shall be made at no cost to the exclusive
representative or the employee. Except as provided under subsection (b)
of this section, any such assignment may not be revoked for a period of
1 year.
(b) An allotment under subsection (a) of this section for the
deduction of dues with respect to any employee shall terminate when--
(1) the agreement between the agency and the exclusive
representative involved ceases to be applicable to the employee .
. ..
/4/ The following abbreviations will be used herein "TR" refers to
the transcript; "Jt" to the Joint Exhibits; "Stip" to the Stipulation
of Facts, which is Jt. 1; "GC" to the exhibits of the General Counsel;
"R" to the exhibits of the Respondents; "GC Br" to the brief of the
General Counsel; and "R Br" to the brief of Respondents.
/5/ Under the Executive Order, an agency could eliminate entire
offices from a bargaining unit, if its primary function related to
internal audit and investigation. See Section 3(a)(4) of the Order,
reprinted in 5 U.S.C.(Supp. V) 7101, note at 312. Under the Statute,
the exclusion from a bargaining unit is on an "employee" basis,
including "any employee primarily engaged in investigative or audit
functions relating to the work of individuals employed by an agency
whose duties directly affect the internal security of the agency, but
only if the functions are undertaken to ensure that the duties are
discharged honestly and with integrity." See 5 U.S.C. 7112(b)(7).
/6/ New position descriptions have been formulated by the OIG, and
were due to be implemented in January 1984. Internal personnel
investigations have been made a major element of the new position
descriptions for OHFI's program analysts.
/7/ This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7).
/8/ It is noted that this same issue is currently pending before the
Authority in Case No. 7-CA-30131, involving HHS's Region VII, and
4-CU-30009, involving its Region IV. The CA case takes the same
position as is taken here. The CU case takes the opposite view.
/9/ No claim was made that the proposal was non-negotiable, as
infringing upon a management right. Accordingly, that issue will not be
dealt with in this decision.