Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado (Activity) and American Federation of Government Employees, AFL-CIO, Local 695 (Labor Organization/Petitioner); Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado (Activity/Petitioner) and American Federation of Government Employees, Local 695, AFL-CIO (Labor Organization)

 6 FLRA No. 17
 
 DEPARTMENT OF THE TREASURY
 BUREAU OF THE MINT, U.S. MINT
 DENVER, COLORADO
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 695
 Labor Organization/Petitioner
                                            Case No. 7-CU-5
 
 
 DEPARTMENT OF THE TREASURY
 BUREAU OF THE MINT, U.S. MINT
 DENVER, COLORADO
 Activity/Petitioner
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 695
 Labor Organization
                                            Case No. 7-CU-9
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    UPON PETITIONS DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
 UNDER SECTION 7111(B) 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 THE CASE, INCLUDING THE BRIEFS FILED BY
 BOTH PARTIES, THE AUTHORITY FINDS:  EACH PARTY FILED A PETITION FOR
 CLARIFICATION OF UNIT (CU) SEEKING A DETERMINATION AS TO WHETHER CERTAIN
 POSITIONS SHOULD BE EXCLUDED FROM A BARGAINING UNIT EXCLUSIVELY
 REPRESENTED BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 695 (AFGE).  /1/ AT THE HEARING, THE PARTIES STIPULATED THAT THE
 ONLY POSITIONS IN QUESTION WERE THOSE OF CLERK-STENOGRAPHER, GS-312-04,
 IN THE BUDGET AND ACCOUNTING DIVISION;  PERSONNEL CLERK, GS-203-05;  AND
 PERSONNEL CLERK (TYPING) GS-203-05, BOTH IN THE PERSONNEL DIVISION.
 HOWEVER, THE RECORD REVEALS THAT THE POSITIONS OF PERSONNEL CLERK,
 GS-203-05 AND PERSONNEL CLERK (TYPING) GS-203-05, ARE CURRENTLY VACANT.
 IN MAKING DECISIONS INVOLVING APPROPRIATE UNITS, THE AUTHORITY WILL NOT
 RESOLVE ISSUES INVOLVING VACANT POSITIONS.  IN SUCH SITUATIONS, RELIANCE
 WOULD HAVE TO BE PLACED ON SUCH EVIDENCE AS WRITTEN POSITION
 DESCRIPTIONS OR TESTIMONY AS TO WHAT THE DUTIES HAD BEEN OR WOULD BE,
 WHICH EVIDENCE MIGHT NOT ACCURATELY REFLECT THE ACTUAL DUTIES PERFORMED
 BY THE INCUMBENTS WHEN THE VACANCIES ARE FILLED.  THE ACTIVITY CONTENDS
 THAT THE INCUMBENTS OF THE ONLY POSITION REMAINING IN QUESTION,
 CLERK-STENOGRAPHER, GS-312-04, IS A CONFIDENTIAL EMPLOYEE BECAUSE OF HER
 WORK RELATIONSHIP WITH THE ACTIVITY'S BUDGET ACCOUNTING OFFICER AND
 THEREFORE SHOULD BE EXCLUDED FROM THE UNIT;  CONVERSELY, AFGE CONTENDS
 THAT THE INCUMBENT DOES NOT ACT IN A CONFIDENTIAL CAPACITY TO ONE WHO
 EFFECTUATES POLICIES RELATING TO LABOR-MANAGEMENT RELATIONS AND
 THEREFORE SHOULD BE INCLUDED IN THE UNIT.
 
    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