34:0120(26)CU - ARMY, U.S. ARMY PLANT REPRESENTATIVE OFFICE MESA, ARIZONA and AFGE, LOCAL 3973 -- 1989 FLRAdec CU



[ v34 p120 ]
34:0120(26)CU
The decision of the Authority follows:


  34 FLRA NO. 26
 


                  U.S. DEPARTMENT OF THE ARMY
             U.S. ARMY PLANT REPRESENTATIVE OFFICE
                         MESA, ARIZONA
                           (Activity)

                              and

          AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                          LOCAL 3973
                (Labor Organization/Petitioner)

                          8-CU-90008

	   ORDER GRANTING APPLICATION FOR REVIEW

     		      December 29,  1989

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This case is before the Authority on an application for
review filed by the U.S. Army Plant Representative Office, Mesa,
Arizona (the Activity) under section 2422.17(a) of the
Authority's Rules and Regulations. The Activity seeks review of
the Regional Director's Decision and Order on a petition filed
under section 7111(b)(2) of the Federal Service Labor -
Management Relations Statute (the Statute) seeking to clarify the
bargaining unit status of 11 positions. The Union did not file an
opposition to the Activity's application for review.

     The Activity seeks review only of the Regional Director's
finding that one of the positions, a Secretary (Typing)
GS-0318-05 position occupied by Deborah Alire, should be included
in the certified bargaining unit. Since the Activity seeks review
only of the Regional Director's finding concerning the position
occupied by Ms. Alire, our review of the Regional Director's
decision is limited to that finding. 

II. Regional Director's Decision

     The Regional Director concluded that Ms. Alire is not a
"confidential employee" within the meaning of section 7103(a)(13)
of the Statute. The Regional Director found that (1) Ms. Alire's
supervisor "does not formulate or effectuate management policy in
the field of labor-management relations"; (2) Ms. Alire "sees
personnel actions only occassionally (sic) and has not attended
any labor-management meetings"; and (3) although Ms. Alire has
"limited access to personnel folders, this does not form a basis
for exclusion from the bargaining unit." Regional Director's
Decision at 6-7. The Regional Director also stated the
following:

     (T)he record establishes that it is the Commander's
secretary, not Alire, who is expected to provide clerical support
in the area of contract negotiations.

     Id. at 6. Accordingly, the Regional Director found that Ms.
Alire should be included in the bargaining unit.

III. Application for Review

     The Activity contends that its application for review should
be granted because the Regional Director's finding as to Ms.
Alire: (1) raises a substantial question of law because of a
departure from Authority precedent; and (2) is clearly erroneous
on a substantial factual issue and prejudicially affects the
rights of the Activity. The Activity asserts that the Regional
Director's factual finding that Ms. Alire is not expected to
provide clerical support to the management negotiating team is
"incorrect and not supported by the evidence in the record."
Application for Review at 1. The Activity asserts also that in
determining whether Ms. Alire acted in a confidential capacity
with respect to an individual who formulates or effectuates
management policies in the field of labor-management relations,
the Regional Director incorrectly focused on the duties performed
by Ms. Alire's supervisor. The Activity maintains that:

     The focus . . . should not have been on (Ms. Alire's
supervisor), rather, it is the negotiating team for whom the work
is being performed. The negotiating team is an extension of the
Command and is responsible for formulating and effectuating the
Command's labor-management policy. The Regional Director's
determination that Ms. Alire does not act in a confidential
capacity to the negotiating team would represent a
significant departure from Authority precedent.

     Id. at 2.

Discussion

     On consideration of the Activity's application for re