34:0127(28)CU - U.S. DEPARTMENT OF LABOR, OFFICE OF THE SOLICITOR ARLINGTON FIELD OFFICE and AFGE, AFL-CIO, LOCAL 12 -- 1989 FLRAdec CU



[ v34 p127 ]
34:0127(28)CU
The decision of the Authority follows:


34 FLRA NO. 28

   


                   U.S. DEPARTMENT OF LABOR
                    OFFICE OF THE SOLICITOR
                    ARLINGTON FIELD OFFICE
                          (Activity)

                              and

          AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                       AFL-CIO, LOCAL 12
                (Labor Organization/Petitioner)

                          3-CU-80024

		ORDER GRANTING APPLICATION FOR REVIEW

     			December 27, 1989

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     On October 31, 1988, the U.S. Department of Labor (DOL)
filed a timely application for review under section 2422.17(a) of
the Authority's Rules and Regulations seeking review of the
Regional Director's Decision and Order on Petition for
Clarification of Unit. The American Federation of Government
Employees, AFL - CIO, Local 12 (the Union) filed an opposition to
the application for review.

     On December 29,  1988, because two vacancies existed in the
membership of the Authority, Acting Chairman McKee issued an
Interim Order directing that consideration of this application be
deferred until further notice. That action preserved the parties'
rights under the Statute to Authority consideration of the
Regional Director's decision.

     The Authority now considers this application for review. For
the reasons discussed below, we grant the application. 

II. Regional Director's Decision

     The Regional Director concluded that the bargaining unit
should be clarified to include 10 of the 11 General Attorney
positions in the Office of the Solicitor's Arlington Field
Office. The General Attorneys handle litigation arising under a
variety of statutes including the Black Lung Benefits Act, the
Fair Labor Standards Act, the Service Contract Act, and the Mine
Safety and Health Act. Some of the General Attorneys also handle
internal labor relations cases before arbitrators, the Merit
Systems Protection Board, and the Equal Employment Opportunity
Commission.

     The Regional Director found that the General Attorneys were
not confidential employees under section 7112(b)(2) or employees
engaged in personnel work under section 7112(b)(3) of the Federal
Service Labor - Management Relations Statute (the Statute). The
Regional Director determined that the General Attorneys'
"involvement in internal labor relations cases, when compared to
their overall workload, (had) been de minimis and insufficient to
exclude them from the existing bargaining unit." Regional
Director's Decision at 5. In this regard, the Regional Director
found that the evidence established that the handling of internal
labor relations cases was a sporadic assignment of work and was
not a consistent and routine aspect of the General Attorney's
overall job duties.

     The Regional Director also concluded that Sheila K. Cronan,
who occupied the remaining General Attorney position, handled
internal labor relations cases on a regular and consistent basis
and was a confidential employee within the meaning of the
Statute.

III. Application for Review

     DOL seeks review of the Regional Director's decision on the
grounds that: (1) the decision concerns issues where there is an
absence of Authority precedent; and (2) the Regional Director
departed from Authority precedent. DOL argues that the Authority
has never found a bargaining unit appropriate which included
attorneys who represent management at administrative proceedings
involving internal labor relations. DOL also argues that the
Regional Director's decision departed from Authority precedent
which prohibits employees from being represented by a union where
such representation would pose a "conflict of interest." DOL
asserts that the de minimis doctrine either is inapplicable or
was misapplied. DOL contends that an inherent "conflict of
interest" is created by placing attorneys who represent
management at internal labor relations proceedings in a
bargaining unit.

     The Union opposes the application for review. The Union
contends that: (1) the Regional Director's decision is consistent
with Authority precedent concerning the use of the de minimis
doctrine regarding confidential employees, (2) DOL is merely
disagreeing with the Regional Director's application of the de
minimis doctrine and such disagreement is not a basis for
granting an application for review, and (3) no conflict of
interest results from the General Attorneys' access to
confidential management documents.

IV. Discussion

     We conclude that compelling reasons exist within the meaning
of section 2422.17(c) of the Authority's Rules and Regulations
for granting the application for review.

     We find that two substantial questions of law or policy are
raised in this case because of the absence of specific Authority
precedent. The first question concerns whether the General
Attorneys' roles, or potential involvement, in internal labor
relations and personnel work is of such a nature as to create an
inherent conflict of interest between the General Attorneys' job
duties and their union affiliation. The second question concerns
whether the frequency or the amount of such work is a controlling
factor in determining if the General Attorneys are confidential
employees or perform personnel work