23:0768(99)CU - 832nd Combat Support Group, Luke AFB, AZ and AFGE Local 1547 -- 1986 FLRAdec RP

 23 FLRA No. 99
 
 832nd COMBAT SUPPORT GROUP 
 LUKE AIR FORCE BASE, ARIZONA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1547, AFL-CIO
 Petitioner
 
                                            Case No. 8-CU-50011
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This case is before the Authority as a result of our order granting
 the application for review of the Regional Director's Decision and Order
 on Petition for Clarification of Unit filed by the 832nd Combat Support
 Group, Luke Air Force Base, Arizona (Activity).  In his Decision, the
 Regional Director found that four employees who serve as "collateral
 duty EEO counselors" should not be excluded from the bargaining unit
 pursuant to section 7112(b)(3) of the Statute.  /1/
 
    The Authority granted the application for review on the basis that it
 appeared that a compelling reason existed pursuant to the provisions of
 section 2422.17(c)(1) of the Authority's Rules and Regulations.  /2/ The
 parties were given an opportunity to file briefs with the Authority;
 neither party did so.  Based on our decision below, we order those
 employees serving as "collateral duty EEO counselors" to be included in
 the bargaining unit.
 
                              II.  Background
 
    The Equal Employment Opportunity (EEO) program function at Luke Air
 Force Base operates pursuant to Air Force Regulation 40-1613 and is
 organizationally located within the Activity's civilian personnel
 officed.  It is headed by a Chief EEO Counselor, a full-time staff
 position.  The Chief EEO Counselor's function is to manage the EEO
 program, coordinating both counseling and complaint case processing
 activities.  To administer the pre-complaint or counseling phase of the
 program, the Activity utilizes four EEO counselors who are referred to
 as "collateral duty EEO counselors" inasmuch as they perform their
 counseling duties on an "as needed" basis, in addition to their regular
 or primary duty assignments.
 
    The candidates for "collateral duty EEO counselor" are interviewed by
 the Chief EEO Counselor who recommends those to be considered for
 selection by the Activity's Commander.  The "collateral duty EEO
 counselor" does not serve for a fixed period of time, but may be
 terminated at any time by the Activity without complying with adverse
 action regulations.  The "collateral duty EEO counselor" also may choose
 to terminate his or her own assignment at any time by declining to serve
 further.  EEO counseling is not the employee's primary employment
 function.  Neither the appointment as a counselor nor the counseling
 duties are grade controlling.  For their EEO duties, the "collateral
 duty EEO counselors receive technical guidance and review from the Chief
 EEO Counselor, but continue to receive supervision and evaluation from
 their regular supervisors.  The "collateral duty EEO counselors" are
 selected from a broad cross-section of the Activity's components so as
 to be accessible to and better serve all employees.
 
    The primary function of these counselors is to counsel employees in
 the pre-complaint stage.  In fulfilling this function the counselors
 develop factual information through discussions with supervisors,
 management officials and otherr employees;  conduct research into
 confidential personnel records where necessary;  attempt informal
 resolution of complaints by providing advice and counsel to complainants
 and management officials;  provide final narrative reports of counseling
 to the Chief EEO Counselor;  and assist the complainant in preparing and
 filing formal EEO complaints on an "as needed" basis.  The sensitive
 nature of the subject matter requires these "collateral duty EEO
 counselors" to maintain a strictly neutral posture.  They are
 responsible for safeguarding the rights and confidentiality of both the
 complainant and the alleged discriminating official.  As the "collateral
 duty EEO counselors" perform duties that are considered to be a bridge
 between management and the employees, they are neither aligned with or
 perceived to be aligned with management or the employees, but rather are
 identified with the goals and purposes of the EEO program.
 
    The record further reveals that by specific addendum to their
 individual job descriptions, two of the incumbents are limited to
 spending no more than 20 percent of their duty time and the other two
 incumbents are limited to spending no more than 10 percent of their duty
 time performing EEO counseling functions.
 
                  III.  Regional Director's Determination
 
    The Regional Director concluded in his Decision and Order on Petition
 for Clarification of Unit that the four employees who serve as
 "collateral duty EEO counselors" should not be excluded from the
 bargaining unit pursuant to section 7112(b)(3) of the Statute.  The
 Regional Director found, pursuant to the Authority's Decision in
 Department of the Air Force, Headquarters, San Antonio Air Logistics
 Center, Kelly Air Force Base, Texas, 3 FLRA 209 (1980), that the duties
 performed by the "collateral duty EEO counselors" fell within the scope
 of personnel work in other than a purely clerical capacity.  He also
 found that as the "collateral duty EEO counselors" only spend 10 or 20
 percent of their official duty time performing these duties, the
 character and extent of involvement in personnel matters was not such
 that it warranted their exclusion from the bargaining unit.  Therefore,
 he ordered that the unit description be clarified to include the four
 named "collateral duty EEO counselors."
 
                       IV.  Positions of the Parties
 
    In its application for revied, the Activity agrees with the Regional
 Director's finding that the "collateral duty EEO counselors" are
 performing duties which constitute personnel work in other than a purely
 clerical capacity within the meaning of section 7112(b)(3) of the
 Statute.  The Activity contends that the purpose of section 7112(b)(3),
 as stated by the Authority in Office of Personnel Management, 5 FLRA 238
 (1981), is to preclude the conflict of interest that would arise between
 the performance of Federal personnel work and union representation.  The
 Activity argues that because the "collateral duty EEO counselors" are
 appointed by the Activity's Commander and are in effect his eyes and
 ears, have access to confidential files and records, and interview
 supervisors and management officials, a conflict of interest exists
 between their EEO duties and their union representation.  Consequently,
 the Activity argues that the Regional Director erred when he considered
 the percentage of work time spent by the "collateral duty EEO
 counselors," and contends that the asserted conflict of interest created
 by their involvement in EEO counseling for 10 or 20 percent of their
 work time in this case is no less significant than the conflict created
 by the use of 100 percent of work time by the Equal Opportunity
 Specialists at issue in Kelly Air Force Base.
 
                               V.  Analysis
 
    The Authority agrees with the conclusions of the Regional Director
 that the "collateral duty EEO counselors" should be included in the
 bargaining unit.  We disagree, however, with the Regional Director's
 finding that the counselors are engaged in Federal personnel work in
 other than a purely clerical capacity within the meaning of section
 7112(b)(3) of the Statute.
 
    The Authority has held that an employee is engaged in personnel work
 in other than a purely clerical capacity within the meaning of section
 7112(b)(3) of the Statute if the employee is directly involved in
 performing personnel work that may affect employees in the unit and
 making recommendations to management concerning such personnel actions.
 Employees found to have been engaged in personnel work have been
 involved in work directly relating to the personnel operations of the
 employee's agency which would create a conflict of interest between the
 employee's job and union representation if the employee were included in
 the bargaining unit.  See Social Security Administration, 17 FLRA 239
 (1985);  Environmental Protection Agency, Region VII, Kansas City,
 Missouri, 14 FLRA 25 (1984);  Veterans Administration, Washington, D.C.,
 11 FLRA 176 (1983);  and Department of Health and Human Services, Region
 X, Seattle, Washington, 9 FLRA 518 (1982).  This is not the case here.
 
    As noted by the Regional Director, the Authority in Kelly Air Force
 Base, upheld the Judge's findings that the employees in the job
 classification Equal Opportunity Specialist, GS-160-07, 09 and 11 should
 be excluded from the bargaining unit as they were engaged in personnel
 work in other than a purely clerical capacity.  In so finding, the Judge
 noted that these employees who functioned as EEO counselors on a
 full-time basis were assigned to and worked out of the Activity's
 personnel office.  Further, he found that in the course of their EEO
 counseling duties, they were privy to confidential personnel files and
 other confidential information.
 
    The Authority finds in the circumstances of this case that the
 "collateral duty EEO counselors" are not engaged in Federal personnel
 work within the meaning of section 7112(b)(3) of the Statute.  The very
 nature of the position of the "collateral duty EEO counselors" clearly
 distinguishes these employees from the full-time EEO counselors found in
 Kelly Air Force Base.  Thus, the record indicates that the "collateral
 duty EEO counselors" are selected by the Activity's Commander for a term
 of unspecified duration and can be removed at any time without complying
 with adverse action regulations, or on their own volition can terminate
 their assignments.  Although EEO duties and responsibilities are
 described in their official position descriptions, the duties do not
 constitute their primary employment purpose and neither the assignment
 as a counselor nor the counselling duties are grade controlling.  The
 "collateral duty EEO counselors" are not assigned to the Activity's
 personnel office and receive only technical guidance and review from the
 Chief EEO Counselor.  During the course of their EEO appointments, the
 "collateral duty EEO counselors" continue to be supervised by their
 individual supervisors who maintain organizational and operational
 control over them at all times.  The "collateral duty EEO counselors"
 are considered neutral and a bridge between management and the
 employees, they are not viewed as being aligned with either group.  In
 summary, based upon the fact that such assignments and duties do not
 constitute the employees primary employment purpose, are not grade
 controlling, are of a voluntary nature for an indefinite duration, and
 that the employees involved are neither attached to nor supervised by
 the personnel office and thus perceived to be neutral, the Authority
 finds that the "collateral duty EEO counselors" are not engaged in
 Federal personnel work within the meaning of section 7112(b)(3) of the
 Statute.
 
                              VI.  Conclusion
 
    The Authority concluldes that section 7112(b)(3) of the Statute is
 not applicable to the four "collateral duty EEO counselors" and that
 these employees should be included in the collective bargaining unit.
 
                                   ORDER
 
    IT IS ORDERED that the unit sought to be clarified is clarified by
 including in the unit the following named "collateral duty EEO
 counselors":  Geraldine Bly, Contract Administrator, GS-1102-09;  James
 Mills, Heavy Mobile Equipment Mechanic, WG-5803-10;  Paul King, Model
 Maker, WG-4714-13 and William Finley, Warehouse Worker, WG-6907-05.
 
    Issued, Washington, D.C., October 31, 1986
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7112(bg)(3) of the Statute provides that an appropriate
 unit may not include "an employee engaged in personnel work in other
 than a purely clerical capacity(.)"
 
    (2) Section 2422.17(c)(1) provides that an application for review may
 be granted on the basis that "a substantial question of law or policy is
 raised because of (i) the absence of, or (ii) a departure from,
 Authority precedent(.)"