Red River Army Depot, Texarkana, Texas (Activity-Petitioner) and National Federation of Federal Employees, Independent, Local 803 (Labor Organization) 



[ v02 p659 ]
02:0659(82)PS
The decision of the Authority follows:


 2 FLRA No. 82
 
 RED RIVER ARMY DEPOT,
 TEXARKANA, TEXAS
 Activity-Petitioner
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, INDEPENDENT, LOCAL 803
 Labor Organization
 
                                            Case No. 6-CU-3
 
                            DECISION AND ORDER
 
    UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
 UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C.  7101-7135, A HEARING WAS HELD BEFORE
 HEARING OFFICER HAROLD L. SHANTEAU ON MAY 31, 1979.  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 A BRIEF FILED BY THE
 ACTIVITY-PETITIONER, THE AUTHORITY FINDS:
 
    THE ACTIVITY, RED RIVER ARMY DEPOT, TEXARKANA, TEXAS, FILED A
 PETITION FOR CLARIFICATION OF UNIT (CU) SEEKING TO EXCLUDE FIVE
 EMPLOYEES AS CONFIDENTIAL EMPLOYEES FROM THE UNIT OF EXCLUSIVE
 RECOGNITION REPRESENTED BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 INDEPENDENT, LOCAL 803 (NFFE).  /1/ AT THE HEARING, THE PARTIES
 STIPULATED THAT FOUR OF THE INCUMBENTS IN FIVE CLERICAL POSITIONS IN
 QUESTION SHOULD BE EXCLUDED FROM THE UNIT AS CONFIDENTIAL EMPLOYEES.
 /2/ ACCORDINGLY, THE ONLY DISPUTE IS WHETHER THE MISCELLANEOUS DOCUMENTS
 EXAMINER (STENOGRAPHY), GS-5, SHOULD BE EXCLUDED AS A CONFIDENTIAL
 EMPLOYEE BECAUSE OF HER WORK RELATIONSHIP WITH THE ACTIVITY'S CHIEF
 LEGAL OFFICER.
 
    SECTION 7112(B)(2) OF THE STATUTE PROVIDES THAT A UNIT WILL NOT BE
 APPROPRIATE FOR LABOR ORGANIZATION REPRESENTATION IF IT INCLUDES A
 CONFIDENTIAL EMPLOYEE.  SECTION 7103(A)(13) OF THE STATUTE DEFINES A
 "CONFIDENTIAL EMPLOYEE" AS ONE "WHO ACTS IN A CONFIDENTIAL CAPACITY WITH
 RESPECT TO AN INDIVIDUAL WHO FORMULATES OR EFFECTUATES MANAGEMENT
 POLICIES IN THE FIELD OF LABOR-MANAGEMENT RELATIONS." THE ISSUES
 PRESENTED HEREIN ARE WHETHER THE CHIEF LEGAL OFFICER FORMULATES OR
 EFFECTUATES MANAGEMENT POLICIES IN THE FIELD OF LABOR-MANAGEMENT
 RELATIONS, AND, IF SO, WHETHER THE EMPLOYEE IN DISPUTE ACTS IN A
 CONFIDENTIAL CAPACITY TO HIM WHEN HE IS PERFORMING HIS DUTIES IN THE
 FIELD OF LABOR-MANAGEMENT RELATIONS.  THE POSITION OF MISCELLANEOUS
 DOCUMENTS EXAMINER (STENOGRAPHY), GS-5, IS THE ONLY CLERICAL POSITION IN
 THE ACTIVITY'S LEGAL OFFICE, WHICH IN ADDITION IS COMPRISED OF AN
 ASSISTANT LEGAL OFFICER AND THE CHIEF LEGAL OFFICER, WHO, AMONG HIS
 OTHER DUTIES, HAS BEEN DESIGNATED AS THE INSTALLATION LABOR COUNSELOR.
 
    THE CHIEF LEGAL OFFICER HAS HELPED TO PREPARE THREE ARBITRATION CASES
 FOR HEARING, HAS ADVISED MANAGEMENT ON PROPOSALS CONCERNING THREE OR
 FOUR CONTRACT NEGOTIATIONS IN THE LAST THREE OR FOUR YEARS, AND HAS BEEN
 CONSULTED BY MANAGEMENT REGARDING THE HANDLING OF UNFAIR LABOR PRACTICE
 CASES.  THUS, IT IS CLEAR FROM THE RECORD THAT THE CHIEF LEGAL OFFICER
 IS AN INDIVIDUAL WHO FORMULATES OR EFFECTUATES MANAGEMENT POLICIES IN
 THE FIELD OF LABOR-MANAGEMENT RELATIONS, WITHIN THE MEANING OF SECTION
 7103(A)(13) OF THE STATUTE.
 
    THE MISCELLANEOUS DOCUMENTS EXAMINER SERVES AS THE SECRETARY TO THE
 CHIEF LEGAL OFFICER.  IN THIS CONNECTION, THE RECORD DISCLOSES THAT ALL
 MAIL COMING TO THE CHIEF LEGAL OFFICER GOES THROUGH THIS EMPLOYEE AND
 THAT SHE HAS ACCESS TO THE FILE CABINET WHERE THE LABOR RELATIONS
 MATERIALS AND CASE FILES ARE KEPT.  HOWEVER, THE RECORD REVEALS THAT SHE
 HAS NOT SEEN ANY DOCUMENTS OR HEARD ANY DISCUSSIONS CONCERNING UNIT
 DETERMINATIONS, CONTRACT PROPOSALS, UNFAIR LABOR PRACTICE CASES (OTHER
 THAN AS A COMPLAINING PARTY IN TWO UNFAIR LABOR PRACTICE CASES), OR
 OTHER LABOR RELATIONS MATTERS.  FURTHER, THIS EMPLOYEE HAS HAD NO
 INVOLVEMENT WITH ARBITRATIONS EXCEPT FOR ONCE OVERHEARING DISCUSSIONS
 BETWEEN THE CHIEF LEGAL OFFICER AND WITNESSES IN PREPARATION FOR
 ARBITRATION DUE TO THE FACT THAT HER DESK WAS PHYSICALLY LOCATED JUST
 OUTSIDE THE CHIEF LEGAL OFFICER'S OFFICE.
 
    THE RECORD HEREIN IS DEVOID OF EVIDENCE THAT THE MISCELLANEOUS
 DOCUMENTS EXAMINER ACTS IN A CONFIDENTIAL CAPACITY TO THE CHIEF LEGAL
 OFFICER WHEN HE IS ENGAGED IN THE PERFORMANCE OF HIS DUTIES IN THE FIELD
 OF LABOR-MANAGEMENT RELATIONS.  IN THE ABSENCE OF EVIDENCE OF AN
 INTEGRAL RELATIONSHIP BETWEEN THE WORK OF THE MISCELLANEOUS DOCUMENTS
 EXAMINER AND THE WORK OF THE CHIEF LEGAL OFFICER IN THE FIELD OF
 LABOR-MANAGEMENT RELATIONS, NEITHER MERE ACCESS TO LABOR RELATIONS
 MATERIALS NOR OVERHEARING BY CHANCE ONE DISCUSSION OF A LABOR RELATIONS
 MATTER IS SUFFICIENT TO ESTABLISH CONFIDENTIAL CAPACITY WITHIN THE
 MEANING OF THE STATUTE.  IN LIGHT OF THESE CIRCUMSTANCES, THE AUTHORITY
 FINDS THAT THE EMPLOYEE IN THE POSITION OF MISCELLANEOUS DOCUMENTS
 EXAMINER (STENOGRAPHY), GS-5, IS NOT A CONFIDENTIAL EMPLOYEE WITHIN THE
 MEANING OF THE STATUTE.  AS THE EMPLOYEE IN THE CLASSIFICATION AT ISSUE
 IS PROPERLY INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY
 THE NFFE, THE PETITION HEREIN SHALL BE DISMISSED.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 6-CU-3 BE, AND IT
 HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 21, 1980.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/