Federal Mediation and Conciliation Service (Activity) and National Association of Government Employees, Local R3-118 (Labor Organization/Petitioner) 



[ v05 p28 ]
05:0028(4)CU
The decision of the Authority follows:


 5 FLRA No. 4
 
 FEDERAL MEDIATION AND CONCILIATION
 SERVICE
 Activity
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R3-118
 Labor Organization/Petitioner
 
                                            Case No. 3-CU-39
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    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 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 BRIEFS FILED BY
 THE ACTIVITY AND THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
 R3-118 (HEREINAFTER NAGE), THE AUTHORITY FINDS:  THE PETITIONER, NAGE,
 SEEKS TO CLARIFY AN EXISTING EXCLUSIVELY RECOGNIZED UNIT OF ALL
 NON-SUPERVISORY, NON-PROFESSIONAL EMPLOYEES OF THE FEDERAL MEDIATION AND
 CONCILIATION SERVICE NATIONAL OFFICE /1/ TO INCLUDE ALL TEMPORARY
 EMPLOYEES AND THE INCUMBENTS OF SEVERAL DISPUTED SECRETARIAL POSITIONS.
 THE ACTIVITY CONTENDS THAT THE TEMPORARY EMPLOYEES SHOULD BE EXCLUDED
 BECAUSE THEY DO NOT HAVE A REASONABLE EXPECTANCY OF CONTINUED
 EMPLOYMENT
 AND DO NOT SHARE A COMMUNITY OF INTEREST WITH THE REST OF THE BARGAINING
 UNIT.  THE ACTIVITY FURTHER CONTENDS THAT THE EMPLOYEES IN THE
 RESPECTIVE CLASSIFICATIONS OF SECRETARY (STENOGRAPHY), GS-318-07, IN THE
 DIVISION OF ADMINISTRATIVE SERVICES;  SECRETARY (STENOGRAPHY),
 GS-318-07, IN THE DIVISION OF BUDGET AND FINANCIAL MANAGEMENT;
 SECRETARY (STENOGRAPHY), GS-318-09, IN THE OFFICE OF THE DIRECTOR;  AND
 SECRETARY (TYPING), GS-318-07, IN THE OFFICE OF GENERAL COUNSEL, SHOULD
 BE EXCLUDED FROM THE UNIT AS CONFIDENTIAL EMPLOYEES.  THESE TWO ISSUES
 ARE DISCUSSED SEPARATELY BELOW.
 
                          THE TEMPORARY EMPLOYEES
 
    OF THE EIGHT TEMPORARY EMPLOYEES IN THE NATIONAL OFFICE OF FMCS AS OF
 JUNE 30, 1980, THE STATUS OF ONLY FOUR ARE PRESENTLY AT ISSUE INASMUCH
 AS THE RECORD INDICATES THAT THE PARTIES STIPULATED THAT THREE OF THESE
 INDIVIDUALS BE EXCLUDED FROM THE UNIT, /2/ AND SINCE THE DATE OF THE
 HEARING, A FOURTH INDIVIDUAL EMPLOYED UNDER A ONE-YEAR TEMPORARY
 APPOINTMENT HAS LEFT THE ACTIVITY AND HAS NOT BEEN REPLACED.
 
    THE FOUR TEMPORARY EMPLOYEES INVOLVED HEREIN ARE ALICE MILLER, WHO
 WAS HIRED UNDER A ONE-YEAR TEMPORARY APPOINTMENT;  JOHN COLE AND MARCIA
 WHITBY, WHO WERE HIRED ONLY FOR THE SUMMER;  AND CALLISTA BESSELLIEU, A
 SUMMER AIDE WHO WAS HIRED THROUGH A SPECIAL DISTRICT OF COLUMBIA SCHOOL
 PROGRAM.
 
    MILLER IS A GS-2 CLERK-TYPIST.  SHE OPERATES AS A "FLOATER", WORKING
 WHEREVER SHE MAY BE NEEDED DUE TO A HEAVY WORK LOAD IN A PARTICULAR AREA
 OR AN EMPLOYEE'S ABSENCE ON VACATION.  WHILE MILLER IS TECHNICALLY UNDER
 THE SUPERVISION OF THE DIRECTOR OF PERSONNEL, SHE IS DIRECTLY SUPERVISED
 BY THE SUPERVISOR OF THE SECTION WHERE SHE HAPPENS TO BE WORKING.  SHE
 DOES PRIMARILY THE SAME WORK AS THE ACTIVITY'S OTHER CLERK-TYPISTS AND
 RECEIVES BOTH ANNUAL AND SICK LEAVE, BUT IS NOT ENTITLED TO HEALTH
 INSURANCE, LIFE INSURANCE, OR RETIREMENT BENEFITS.  THE RECORD REFLECTS
 THAT MILLER HAS NEVER DISCUSSED THE POSSIBILITY OF PERMANENT EMPLOYMENT
 AT THE ACTIVITY, AND HAS RECEIVED NO PROMISE CONCERNING CONTINUED
 EMPLOYMENT BEYOND HER ONE YEAR APPOINTMENT.  THE UNDISPUTED TESTIMONY
 FURTHER INDICATES THAT THERE IS VERY LITTLE PROSPECT OF HER BECOMING A
 PERMANENT EMPLOYEE, OR FOR HER REAPPOINTMENT AS A TEMPORARY EMPLOYEE.
 
    THE TWO SUMMER TEMPORARIES, JOHN COLE AND MARCIA WHITBY, ARE BOTH IN
 CLERK-TYPIST POSITIONS.  DURING THE REST OF THE YEAR THEY ARE FULL-TIME
 STUDENTS AT THE UNIVERSITY LEVEL, AND THERE IS NO EVIDENCE IN THE RECORD
 THAT THEY HAVE AN INTEREST IN PERMANENT EMPLOYMENT.  WHILE BOTH HAVE
 WORKED FOR THE ACTIVITY PREVIOUSLY DURING THE SUMMER, NO PROMISE WAS
 EVER MADE TO THEM OF EMPLOYMENT FOR THE FOLLOWING SUMMER AND BOTH HAD TO
 SUBMIT NEW APPLICATIONS FOR EMPLOYMENT.  IN THE COURSE OF THEIR
 EMPLOYMENT, THEY DO PRIMARILY THE SAME WORK AS THE OTHER EMPLOYEES IN
 THE SECTION WHERE THEY ARE ASSIGNED.  HOWEVER, UNLIKE THE OTHER
 EMPLOYEES, THEY RECEIVE NO ANNUAL OR SICK LEAVE AND NO LIFE INSURANCE OR
 HEALTH BENEFITS.
 
    THE SUMMER AIDE, CALLISTA BESSELLIEU, WAS HIRED THROUGH A SPECIAL
 DISTRICT OF COLUMBIA SCHOOL PROGRAM IN WHICH STUDENTS ARE PLACED IN JOBS
 DURING THE SUMMERS.  SHE IS PAID A MINIMUM WAGE AND DOES NOT HAVE A GS
 RATING.  THIS POSITION IS FILLED EACH SUMMER, AND THERE IS NO INDICATION
 THAT BESSELIEU WOULD HAVE ANY EXPECTATION OF GETTING THE JOB FOR THE
 FOLLOWING SUMMER.
 
    UNDER THESE CIRCUMSTANCES, THE AUTHORITY FINDS THAT NONE OF THE
 ACTIVITY'S FOUR TEMPORARY EMPLOYEES AT ISSUE HEREIN SHOULD BE INCLUDED
 WITHIN THE UNIT SOUGHT TO BE CLARIFIED.  ALTHOUGH THE RECORD ESTABLISHES
 THAT THE GENERAL WORKING CONDITIONS FOR ALL EMPLOYEES OF THE ACTIVITY
 ARE SIMILAR, IT ALSO CLEARLY INDICATES THAT THE TEMPORARY EMPLOYEES AT
 ISSUE WERE HIRED FOR A SPECIFIC PERIOD AND HAVE NO REASONABLE
 EXPECTATION OF CONTINUED EMPLOYMENT BEYOND THAT PERIOD.  ACCORDINGLY,
 THE AUTHORITY FINDS, IN THE CIRCUMSTANCES OF THIS CASE, THAT THE
 TEMPORARY EMPLOYEES AT ISSUE ARE EXCLUDED FROM THE CERTIFIED BARGAINING
 UNIT WHICH SPECIFICALLY EXCLUDES "TEMPORARY EMPLOYEES WITH NO REASONABLE
 EXPECTANCY OF CONTINUED EMPLOYMENT."
 
                        THE CONFIDENTIAL EMPLOYEES
 
    AS PREVIOUSLY STATED, THE ACTIVITY ALLEGES THAT FOUR EMPLOYEES SHOULD
 BE EXCLUDED FROM THE BARGAINING UNIT AS CONFIDENTIAL EMPLOYEES.  /3/
 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 ISSUE
 PRESENTED IN EACH OF THE FOUR INSTANCES HEREIN IS WHETHER THE EMPLOYEE
 IN DISPUTE ACTS IN A CONFIDENTIAL CAPACITY TO AN INDIVIDUAL WHO
 FORMULATES OR EFFECTUATES MANAGEMENT POLICIES IN THE FIELD OF
 LABOR-MANAGEMENT RELATIONS, AND IF SO, WHETHER THE EMPLOYEE ACTS IN A
 CONFIDENTIAL CAPACITY TO SUCH INDIVIDUAL WHEN THE LATTER IS PERFORMING
 DUTIES IN THE FIELD OF LABOR-MANAGEMENT RELATIONS.  SEE RED RIVER ARMY
 DEPOT, TEXARKANA, TEXAS, 2 FLRA NO. 82(1980).
 
    MARIE GALLAGHER OCCUPIES THE POSITION OF SECRETARY (STENOGRAPHY),
 GS-318-07, IN THE DIVISION OF ADMINISTRATIVE SERVICES, AND IS SECRETARY
 TO THE HEAD OF THE DIVISION OF ADMINISTRATIVE SERVICES, DAN FUNKHOUSER.
 FUNKHOUSER, APART FROM HIS OTHER DUTIES IN SUPERVISING HIS DIVISION, IS
 ONE OF THE THREE MEMBERS OF THE MANAGEMENT NEGOTIATING TEAM WHICH IS
 CURRENTLY INVOLVED IN CONTRACTUAL NEGOTIATIONS WITH THE PETITIONER,
 NAGE.  GALLAGHER'S DUTIES INVOLVE OPENING AND LOGGING INCOMING MAIL;
 FILING;  PREPARING RESPONSES TO CORRESPONDENCE;  HANDLING PROBLEMS
 WITHIN THE BUILDING;  AND HANDLING LEAVE FOR THE DIVISION EMPLOYEES.
 DURING THE COURSE OF HER WORK SHE TYPES BARGAINING PROPOSALS FOR
 FUNKHOUSER, TRANSCRIBES NOTES HE WAS TAKEN AT BARGAINING SESSIONS, AND
 MAINTAINS A "BARGAINING BOOK" WHICH KEEPS TRACK OF WHAT HAS TAKEN PLACE
 AT PREVIOUS BARGAINING SESSIONS AND WHAT MANAGEMENT STRATEGY WILL BE
 USED AT FUTURE BARGAINING SESSIONS.  BASED ON THE FOREGOING, THE
 AUTHORITY FINDS THAT MARIE GALLAGHER, SECRETARY (STENOGRAPHY),
 GS-318-07, DIVISION OF ADMINISTRATIVE SERVICES, ACTS IN A CONFIDENTIAL
 CAPACITY TO AN INDIVIDUAL WHO IS INVOLVED IN THE FORMULATION AND
 EFFECTUATION OF MANAGEMENT POLICIES IN THE FIELD OF LABOR-MANAGEMENT
 RELATIONS.  ACCORDINGLY, THE AUTHORITY SHALL EXCLUDE THE EMPLOYEE FROM
 THE CERTIFIED UNIT REPRESENTED BY NAGE, INASMUCH AS SHE IS A
 CONFIDENTIAL EMPLOYEE WITHIN THE MEANING OF SECTION 7103(A)(13) OF THE
 STATUTE.
 
    JEAN KUEBBELER HOLDS THE POSITION OF SECRETARY (STENOGRAPHY),
 GS-318-07, DIVISION OF BUDGET AND FINANCE, AND IS ONE OF THE TWO
 SECRETARIES IN THAT DIVISION.  IN THE COURSE OF HER DUTIES, KUEBBELER
 DOES MOST OF THE TYPING FOR THE ASSISTANT DIRECTOR FOR BUDGET AND
 FINANCE, RICHARD LAULOR, WHO IS THE HEAD OF THE BUDGET AND FINANCE
 DIVISION.  LAULOR'S DUTIES INVOLVE THE SUPERVISION OF HIS DIVISION.  IN
 THAT CAPACITY, HOWEVER, LAULOR TESTIFIED THAT HE PLAYS LITTLE PART IN
 LABOR-MANAGEMENT RELATIONS WITHIN THE FMCS.  KUEBBELER'S DUTIES INCLUDE
 LOGGING IN MAIL;  TYPING CORRESPONDENCE;  TYPING THE BUDGET;  AND TYPING
 FOR THE OTHER EMPLOYEES IN THE DIVISION.  BASED ON THE FOREGOING, THE
 AUTHORITY FINDS THAT JEAN KUEBBELER, SECRETARY (STENOGRAPHY), GS-318-07,
 DIVISION OF BUDGET AND FINANCE, IS NOT A CONFIDENTIAL EMPLOYEE WITHIN
 THE MEANING OF SECTION 7103(A)(13) OF THE STATUTE.  ALTHOUGH KUEBBELER
 MAY SERVE GENERALLY IN A CONFIDENTIAL CAPACITY TO THE HEAD OF THE BUDGET
 AND FINANCE DIVISION, THE LATTER IS NOT INVOLVED IN THE FORMULATION AND
 EFFECTUATION OF MANAGEMENT POLICIES IN THE FIELD OF LABOR-MANAGEMENT
 RELATIONS.  ACCORDINGLY, KUEBBELER IS PROPERLY INCLUDED IN THE CERTIFIED
 UNIT.
 
    SANDRA SROKA OCCUPIES THE POSITION OF SECRETARY (STENOGRAPHY),
 GS-318-09, IN THE OFFICE OF THE DIRECTOR, AND SERVES AS SECRETARY TO
 BOTH THE DIRECTOR'S EXECUTIVE ASSISTANT AND SPECIAL ASSISTANT AS WELL AS
 BACK-UP TO THE DIRECTOR'S PERSONAL SECRETARY.  SROKA'S PRIMARY FUNCTION
 IS TO LOG IN THE DIRECTOR'S MAIL, FORWARD IT TO THE APPROPRIATE PLACE
 FOR RESPONSE, AND PROOFREAD AND LOG OUT RESPONSES.  SHE ALSO READS ALL
 MAIL ADDRESSED TO THE DIRECTOR AND PROOFREADS THE RESPONSES.  SROKA
 TESTIFIED THAT SHE HAS READ CORRESPONDENCE ON TWO GRIEVANCES, AN EEO
 COMPLAINT, SEVERAL COMPLAINTS TO THE MERIT SYSTEMS PROTECTION BOARD,
 FOUR OR FIVE UNFAIR LABOR PRACTICE CHARGES, AND SEVERAL AGENCY
 RESPONSES.  THE RECORD INDICATES THAT WHILE SROKA DOES HAVE ACCESS TO
 CERTAIN PERSONNEL OR LABOR RELATIONS MATERIAL, MERE ACCESS TO SUCH
 MATERIAL DOES NOT WARRANT THE EXCLUSION OF AN EMPLOYEE FROM AN
 EXCLUSIVELY RECOGNIZED UNIT.  SEE U.S. ARMY COMMUNICATIONS SYSTEMS
 AGENCY, FORT MONMOUTH, NEW JERSEY, 4 FLRA NO. 83(1980).  FURTHER, SHE
 DOES NOT OTHERWISE ACT IN A CONFIDENTIAL CAPACITY TO AN INDIVIDUAL WHO
 FORMULATES OR EFFECTUATES MANAGEMENT POLICIES IN THE FIELD OF
 LABOR-MANAGEMENT RELATIONS.  BASED ON THE FOREGOING, THE AUTHORITY FINDS
 THAT SANDRA SROKA, SECRETARY (STENOGRAPHY), GS-318-09, OFFICE OF THE
 DIRECTOR, IS NOT A CONFIDENTIAL EMPLOYEE WITHIN THE MEANING OF SECTION
 7103(A)(13) OF THE STATUTE.  ACCORDINGLY, SHE IS PROPERLY INCLUDED IN
 THE CERTIFIED UNIT.
 
    VICKY NIEMI HOLDS THE POSITION OF SECRETARY (TYPING), GS-318-07, IN
 THE OFFICE OF GENERAL COUNSEL, AND IS SECRETARY TO THE ASSOCIATE GENERAL
 COUNSEL.  NIEMI PERFORMS SECRETARIAL DUTIES FOR THE ASSOCIATE GENERAL
 COUNSEL AND FOR TWO ASSISTANT GENERAL COUNSEL.  IN THE COURSE OF HER
 DUTIES SHE TYPES BRIEFS, AFFIDAVITS, CORRESPONDENCE AND RESPONSES IN
 BOTH UNFAIR LABOR PRACTICE AND EEO COMPLAINT PROCEEDINGS INVOLVING THE
 FMCS.  SHE ALSO ASSISTS IN PREPARING FOR HEARINGS AND TRIALS INVOLVING,
 AMONG OTHER THINGS, UNFAIR LABOR PRACTICE COMPLAINTS AND REPRESENTATION
 ISSUES.  NIEMI ALSO TYPES MEMORANDA AND CORRESPONDENCE FOR THE ASSISTANT
 GENERAL COUNSEL WHO SERVES AS CHIEF OF THE MANAGEMENT NEGOTIATING TEAM
 AND CHIEF LABOR RELATIONS REPRESENTATIVE FOR THE FMCS.  IN THIS
 CONNECTION, NIEMI HAS ASSEMBLED THE CHIEF NEGOTIATOR'S BARGAINING BOOK,
 DISTRIBUTED DRAFTS OF MANAGEMENT PROPOSALS TO OTHER MEMBERS OF THE
 NEGOTIATING TEAM, AND RETYPED THE PROPOSALS TO INCORPORATE THEIR
 COMMENTS.  SHE ALSO HAS TYPED MEMORANDA TO MANAGEMENT OFFICIALS ON THE
 STATUS OF NEGOTIATIONS, AND IS THE ONLY PERSON OTHER THAN THE CHIEF
 NEGOTIATOR WHO HAS A KEY TO THE FILE CABINET WHERE THE BARGAINING
 MATERIAL IS KEPT.  BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT
 VICKY NIEMI, SECRETARY (TYPING), GS-318-07, OFFICE OF GENERAL COUNSEL,
 SERVES IN A CONFIDENTIAL CAPACITY TO AN INDIVIDUAL WHO IS INVOLVED IN
 THE FORMULATION AND EFFECTUATION OF MANAGEMENT POLICIES IN THE FIELD OF
 LABOR-MANAGEMENT RELATIONS.  ACCORDINGLY, THE AUTHORITY SHALL EXCLUDE
 THE EMPLOYEE FROM THE CERTIFIED UNIT INASMUCH AS SHE IS A CONFIDENTIAL
 EMPLOYEE WITHIN THE MEANING OF SECTION 7103(A)(13) OF THE STATUTE.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED, IN WHICH
 THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R3-118, WAS
 CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE ON NOVEMBER 19, 1979, BE AND
 HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT THE POSITIONS OF
 SECRETARY (STENOGRAPHY), GS-318-07, DIVISION OF BUDGET AND FINANCE, AND
 SECRETARY (STENOGRAPHY), GS-318-09, OFFICE OF THE DIRECTOR, BUT
 EXCLUDING FROM SAID UNIT THE FOUR TEMPORARY EMPLOYEES INVOLVED HEREIN
 AND THE POSITIONS OF SECRETARY (STENOGRAPHY), GS-318-07, DIVISION OF
 ADMINISTRATIVE SERVICES, AND SECRETARY (TYPING), GS-318-07, OFFICE OF
 THE GENERAL COUNSEL.
 
    ISSUED WASHINGTON, D.C., JANUARY 28, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ON NOVEMBER 19, 1979, NAGE WAS CERTIFIED AS THE EXCLUSIVE
 REPRESENTATIVE OF ALL NON-SUPERVISORY, NON-PROFESSIONAL EMPLOYEES OF THE
 FMCS NATIONAL OFFICE, EXC