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)



[ v06 p52 ]
06:0052(17)CU
The decision of the Authority follows:


 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 RELATIONS." ACCORDINGLY, THE
 ISSUES PRESENTED ARE WHETHER THE BUDGET ACCOUNTING OFFICER FORMULATES
 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 BUDGET ACCOUNTING OFFICER HEADS THE ACTIVITY'S BUDGET AND
 ACCOUNTING DIVISION AND SUPERVISES NINE UNIT EMPLOYEES INCLUDING THE
 CLERK-STENOGRAPHER, GS-312-04.  HE IS RESPONSIBLE FOR ADMINISTERING ALL
 OPERATIONS WITHIN THE BUDGET ACCOUNTING DIVISION, WHICH INCLUDE COST
 ACCOUNTING, GENERAL LEDGER, APPROPRIATION ACCOUNTING, AND PAYROLL
 FUNCTIONS.  THE RECORD REVEALS THAT THE BUDGET ACCOUNTING OFFICER
 ATTENDS WEEKLY GENERAL STAFF MEETINGS;  IS RESPONSIBLE FOR HIRING,
 PROMOTIONS, ADVERSE ACTIONS, DISCIPLINARY ACTION AND TRAINING NEEDS
 WITHIN HIS DIVISION;  AND SERVES ON A PERSONNEL UTILIZATION COMMITTEE
 WHICH MANAGES THE USE OF EMPLOYEES IN VARIOUS JOBS AT THE ACTIVITY.  THE
 RECORD FURTHER ESTABLISHES THAT HE HAS BEEN ON A TASK FORCE INVOLVING A
 POTENTIAL REORGANIZATION OF THE ACTIVITY WHICH NEVER MATERIALIZED, AND
 HAS SERVED ON ANOTHER COMMITTEE CONCERNED WITH THE ANNUAL TEMPORARY
 SHUTDOWN OF THE ACTIVITY'S OPERATIONS.  HOWEVER, ACCORDING TO THE
 RECORD, THE BUDGET ACCOUNTING OFFICER HAS NEVER RESPONDED TO A FORMAL
 GRIEVANCE, IS NOT A MEMBER OF THE LOCAL LABOR MANAGEMENT COMMITTEE, HAS
 NEVER SAT ON A MANAGEMENT NEGOTIATING TEAM, AND DOES NOT FORMULATE OR
 EFFECTUATE MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS.
 
    THE DUTIES OF THE CLERK-STENOGRAPHER INCLUDE THE PERFORMANCE OF ALL
 THE BUDGET ACCOUNTING OFFICER'S TYPING, HANDLING OF PHONE MESSAGES, AND
 DISTRIBUTION OF INCOMING MAIL.  THE RECORD INDICATES THAT THE
 CLERK-STENOGRAPHER HAS NEVER TYPED OR HANDLED MATERIALS RELATING TO
 CONTRACT NEGOTIATIONS OR ANY OTHER LABOR RELATIONS MATTERS.  WHILE THE
 RECORD INDICATES THAT SHE HAS ACCESS TO ALL OF THE BUDGET ACCOUNTING
 OFFICER'S FILES, INCLUDING THOSE SHE CONSIDERS CONFIDENTIAL IN NATURE,
 THE FILES DO NOT CONTAIN MATERIALS INVOLVING LABOR RELATIONS MATTERS.
 
    BASED ON