34:0197(43)CU - U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT and AFGE, LOCAL 476 -- 1990 FLRAdec CU



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34:0197(43)CU
The decision of the Authority follows:


  34 FLRA NO. 43
 


       U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
                           (Agency)

                             and

         AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                          LOCAL 476
                        (Petitioner)

                         3-CU-80011

ORDER GRANTING AND REMANDING IN PART, AND DENYING IN PART,
		APPLICATION FOR REVIEW

   		  January 11, 1990

     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. Department of Housing and Urban
Development (the Agency) under section 2422.17(a) of the
Authority's Rules and Regulations.

     The American Federation of Government Employees, Local 476
(AFGE) filed a petition under section 7111(b)(2) of the Federal
Service Labor - Management Relations Statute (the Statute)
seeking to clarify its existing bargaining unit to include in the
unit the employees occupying 41 positions. On October 12, 1988,
the Regional Director issued his Decision and Order on Petition
for Clarification of Unit, finding that the employees in 35 of
the 41 disputed positions should be included in the bargaining
unit and employees in 6 of the positions should be excluded.

     The Agency's application seeks review of the Regional
Director's decision and order. AFGE did not file an opposition to
the application for review.

     Inasmuch as the Authority had two vacancies when this
application for review was received, Acting Chairman McKee issued
an Interim Order on February 6, 1989, directing that
consideration of the application be deferred until further
notice. This interim order 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 set forth below, we grant the application in part,
and will remand the case to the Regional Director to take further
appropriate action on the status of three employees. We deny the
application as to all other employees.

II. Background and Regional Director's Decision

     Since 1982, AFGE has been the exclusive representative of a
consolidated nationwide bargaining unit of Headquarters and
Regional Office nonprofessional employees of the Agency. AFGE's
petition sought to clarify the unit to include the employees
occupying 41 positions in the component divisions and branches of
the Agency Headquarters' Office of Personnel and Training. The
Agency argued that all of the employees in dispute should be
excluded from the unit because they are either (1) confidential
employees as defined in section 7103(a)(13) of the Statute, or
(2) employees engaged in personnel work in other than a purely
clerical capacity within the meaning of section 7112(b)(3). The
Regional Director ordered a hearing on the matters raised by the
petition.

     Within the Office of Personnel and Training (OPT) there are
five divisions, four of which are composed of three or four
branches. At issue were employees in the following categories:
(1) an administrative staff assistant and a secretary (typing) in
the Office of the Director, OPT; (2) a secretary in each division
except the Management and Labor Relations Division; (3)
secretaries, secretaries (typing), clerk-typists, and clerks
(typing) in several branches; (4) a personnel assistant in the
Employee Assistance Branch, Management and Labor Relations
Division; (5) an employee relations specialist, a personnel
staffing specialist, personnel assistants, and personnel actions
clerks in branches of the Employment and Classification Division;
and (6) personnel pay specialists and a personnel pay technician
on the Systems Management and Pay Policy Staff of the Personnel
Systems and Payroll Division.

     The Agency took the position before the Regional Director
that the employees in the first three categories should
be excluded from the unit as confidential employees, and that
those in the last three categories should be excluded because
they are employees engaged in personnel work in other than a
purely clerical capacity. The Agency alleged that five of the
employees should be excluded from the unit on both grounds.

     The Regional Director found that none of the employees
alleged by the Agency to be confidential employees is a
confidential employee within the meaning of the Statute. The
Regional Director found that six employees should be excluded
from the unit because they are employees engaged in personnel
work in other than a purely clerical capacity within the meaning
of the Statute. The Regional Director found that the duties of
the other employees the Agency would exclude because of personnel
functions are purely clerical in nature and performed in a
routine manner in accordance with established Agency guidelines
that require the exercise of little, if any, independent judgment
or discretion. Therefore, he included them in the unit. A list of
the employees included in and excluded from the unit is found in
the appendix to this decision.

III. The Application for Review

     No review is requested of the Regional Director's findings
that six employees should be excluded from the unit. Further, the
Agency does not seek review of the Regional Director's findings
that the following employees should be included in the unit: (1)
the Clerk (Guy Jones), GS-303-1, Office of Personnel and
Training; (2) the Presidential Management Intern (Diane Hill),
GS-301-11, Personnel Systems and Payroll Division; and (3) the
Clerk - Typist (Pamina Haddock), GS-322-4, Program Technical
Training Branch, Training Division. These findings, therefore,
are not at issue and have not been considered in this decision.

     The Agency contends that the Authority should grant review
of the Regional Director's decision concerning the remaining 32
employees under section 2422.17 of the Authority's Rules and
Regulations. It contends that the Regional Director "either
ignored or misapplied certain facts contained in the record and
in several instances, the Hearing Officer failed to obtain a full
and complete record which resulted in an incorrect conclusion" as
to the employees in question. Agency's Application for Review
(Agency's Brief) at 1.

     The Agency states that each of the Division Directors and
Branch Chiefs in the Office of Personnel and Training is 
responsible for implementing and administering various aspects of
the parties' negotiated agreement. The Agency further states that
these managers are consulted by the labor relations staff in
developing management's responses to grievances and negotiations.
The Agency contends that each of the Division Directors and
Branch Chiefs is engaged in formulating or effectuating
management policies within the meaning of section 7103(a)(13) of
the Statute.

     The Agency asserts that the employees it alleges work in a
confidential capacity to the Division Directors and Branch Chiefs
are responsible for tracking and screening personnel actions and
that they have access to and must often type labor-management
materials. The Agency contends that each of the employees it
alleges should be excluded because of personnel functions has
substantial knowledge of Federal personnel rules and procedures
and performs functions that require the exercise of independent
judgment.

IV. Discussion

     The status of 32 employees is before us. We will treat the
status of three employees separately below. For the following
reasons, we conclude that no compelling reasons exist within the
meaning of section 2422.17(c) of our Rules and Regulations for
granting review of the application concerning the other 29
employees.

     Section 7112(b) of the Statute provides:

     (b) A unit shall not be determined to be appropriate under
this section ... if it includes--

     (2) a confidential employee; (or)

     (3) an employee engaged in personnel work in other than a
purely clerical capacity(.)

     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."

     Except for employee Marian Johnson, whose status we address
below, the Regional Director properly resolved the issues
presented to him concerning the employees whom the Agency
asserted were confidential by determining whether:  (1)
the Special Assistant to the Director (OPT), the Division
Directors, and the Branch Chiefs formulate or effectuate
management policies in the field of labor management relations;
and (2) the employees in dispute act in a confidential capacity
to those persons when they are performing their labor management
relations duties. See U.S. Department of Labor, 33 FLRA  265, 268
(1988).

     Except for employees Deborah Swann and Annette S. Butler,
whose status we address below, the Regional Director properly
resolved the issues presented to him concerning the employees who
the Agency alleged are excluded because they are engaged in
personnel work in other than a purely clerical capacity by
determining whether their duties are routine in nature, are in
accordance with prescribed guidelines, and require the exercise
of independent judgment or discretion. See Veterans
Administration Medical Center, Prescott, Arizona, 29 FLRA  1313
(1987); Headquarters, Fort Sam Houston, Fort Sam Houston, Texas,
5 FLRA  339, 342-44 (1981).

     The application expresses disagreement with the Regional
Director's factual findings concerning these 29 employees. The
application does not, however, support the Agency's claim that
with respect to these employees the Regional Director's decision
is clearly erroneous on a substantial factual issue and that such
error has prejudicially affected its rights.

     Accordingly, we deny the Agency's application for review to
the extent that it challenges the Regional Director's inclusion
of these 29 employees in the unit. See United States Department
of Justice, Immigration and Naturalization Service, Western
Regional Office, 20 FLRA  71, 74-75 (1985); Headquarters, 1947th
Administrative Support Group, U.S. Air Force, Washington, D.C.,
14 FLRA  220, 222-25 (1984); U.S. Army Communications Systems
Agency, Fort Monmouth, New Jersey, 4 FLRA  627, 636-39 (1980);
Red River Army Depot, Texarkana, Texas, 2 FLRA  659, 660
(1980).

     We conclude that the Agency has established that compelling
reasons exist for granting the application for review concerning
the following three employees:

     Marian Johnson, Secretary, GS-318-6

     The Regional Director found that Marian Johnson, secretary
to the Branch Chief, Performance and Incentive Awards Branch,
Management and Labor Relations Division, is not a confidential
employee within the meaning of the Statute. The Regional
Director concluded that the Branch Chief in this branch does not
formulate or effectuate management policies in the field of
labor-management relations. The Regional Director also found,
however, that Johnson spends between 1 1/2 and 2 hours each
working day taking the place of the secretary to the Director of
the Management and Labor Relations Division. Regional Director's
Decision at 5. The record shows that while Johnson is so engaged,
she performs the functions of the Director's secretary. The
Agency states that "(i)t is an axiomatic fact that the Secretary
to a Director of Labor Relations must be excluded from any
bargaining unit." Agency's Brief at 8. The Agency argues that
Johnson should, therefore, be excluded because she acts in that
capacity up to 25 percent of her work time. Id.

     The Regional Director did not make findings concerning: (1)
the functions of the Division Director, (2) the relationship of
the secretary to the Director, or (3) whether the secretary to
the Director has been included in the unit. Finally, the Regional
Director did not determine whether Johnson, when taking the place
of the secretary to the Division Director, is acting in a
confidential capacity to an individual who is engaged in labor
management relations and should for that reason be excluded from
the unit while acting in that capacity. See, for example, Food
and Drug Administration, Region I, 6 FLRA  229, 235-36 (1981).

     The Regional Director's failure to make this determination
has resulted in error prejudicial to the Agency within the
meaning of section 2422.17(c)(3) of our Rules and Regulations. We
have reviewed the record and conclude that it does not contain
sufficient evidence to make the findings, set forth above, needed
to make this determination. Therefore, we grant the application
as to employee Johnson and will remand this part of the case to
the Regional Director to reopen the record and to obtain the
necessary evidence, by stipulation of the parties or by further
testimony at a reopened hearing, and to make the necessary
findings and determination. See U.S. Department of Energy,
Federal Energy Regulatory Commission, 22 FLRA  3, 5 (1986).

     Deborah Swann, Administrative Staff Assistant, GS-303-7
Annette S. Butler, Secretary (Typing), GS-318-7

     These two employees work in the Office of the Director, OPT,
under the supervision of the Special Assistant to the Director.
The Regional Director found that neither of them is a
confidential employee within the meaning of the Statute and he
included them in the unit. The Agency disagrees. The Agency also
argues that the Regional Director should have found that they
were engaged in personnel work in other than a purely clerical
capacity.

     The Regional Director found that Deborah Swann,
Administrative Staff Assistant, reviews travel orders and travel
vouchers and is responsible for purchase orders for office
materials. She also reviews personnel actions for accuracy, and
is responsible for processing within-grade promotion actions
taken by the branch and for answering inquiries as to the
Agency's payroll system. Swann has access to locked file cabinets
which contain grievances and typed a grievance response on one
occasion. Regional Director's Decision at 3.

     The Regional Director found that Annette Butler, Secretary
(Typing), reviews reports on: (1) time and attendance, (2) due
dates for within-grade promotions, and (3) the length of employee
details. She also distributes salary checks and earnings and
leave statements. Regional Director's Decision at 3. The record
shows that Butler takes Swann's place when Swann is absent.

     The Regional Director found that the Special Assistant for
whom Swann and Butler work is not an individual who formulates
and effectuates management policies in the field of
labor-management relations. Consequently, the Regional Director
found that neither Swann nor Butler is a confidential employee.
The Regional Director also found that access to grievance files
was not enough to find Swann to be a confidential employee.

     To the extent that the Agency's application challenges the
Regional Director's conclusions that Swann and Butler are not
confidential employees, we deny the application. The application
expresses mere disagreement with the Regional Director's factual
findings, but does not support the claim that he was clearly
erroneous in his findings or in his conclusions from those
facts.

     However, the record shows that the Agency also alleged that
Swann and Butler are employees engaged in personnel work in other
than a purely clerical capacity. Transcript at 8. The Regional
Director did not reach any conclusions as to these allegations.

     The Regional Director noted some of the duties of Swann and
Butler that are pertinent to these issues, as set forth above,
but failed to make other necessary findings. For 
example, the Regional Director did not find: (1) whether the
duties of Swann and Butler which are related to personnel actions
are performed in a routine manner in accordance with established
guidelines and regulations, or require the exercise of
independent judgment or discretion; (2) the extent to which Swann
and Butler initiate personnel actions or make recommendations to
management on personnel actions; and (3) the amount of their
work, if any, that requires exercising independent judgment or
discretion, initiating personnel actions, or making
recommendations to management on personnel actions. Finally, the
Regional Director did not determine whether Swann and Butler are
employees engaged in personnel work in other than a purely
clerical capacity within the meaning of the Statute.

     The Regional Director's failure to make these determinations
has resulted in error prejudicial to the Agency within the
meaning of section 2422.17(c)(3) of our Rules and Regulations. We
have reviewed the record and conclude that it does not contain
sufficient evidence to make the findings, set forth above, needed
to make these determinations. Therefore, to the extent that the
Agency's application challenges the Regional Director's failure
to make these determinations, we grant the application and will
remand these parts of the case to the Regional Director to reopen
the record and to obtain the necessary evidence, by stipulation
of the parties or by further testimony at a reopened hearing, and
to make the necessary findings and determinations. See Federal
Energy Regulatory Commission.

V. Order

     Pursuant to section 2422.17(g) of our Rules and Regulations,
we grant the application for review of the Regional Director's
decision and order to the extent that it challenges the Regional
Director's failure to make certain determinations concerning
employees Johnson, Swann, and Butler. These matters are remanded
to the Regional Director to take appropriate action consistent
with this decision.

     Pursuant to section 2422.17(f)(3) of our Rules and
Regulations, we deny the application for review of the Regional
Director's decision and order to the extent that it challenges
his inclusion of the other 29 employees in the unit. 

APPENDIX

     INCLUDED IN THE UNIT

     Office of Personnel and Training (OPT)

     1. Deborah Swann, Administrative Staff Assistant, GS-303-7
1

     2. Guy Jones, Clerk, GS-303-1

     3. Annette S. Butler, Secretary (Typing), GS-318-7 1

     Performance and Incentive Awards Branch, Management and
Labor Relations Division, OPT

     4. Marian Johnson, Secretary, GS-318-6 2

     5. Delma Y. Beverly, Clerk - Typist, GS-303-5

     Plans and Evaluation Division, OPT

     6. Martha Morgan, Secretary, GS-318-7

     Personnel Systems and Payroll Division, OPT

     7. Sheila Martin, Secretary (Typing), GS-318-7

     8. Diane Hill, Presidential Management Intern, GS-301-11 3

     Systems Management and Pay Policy Branch, Personnel Systems
and Payroll Division, OPT

     9. Patricia Jackson, Personnel Pay Specialist, GS-301-9

     10. Parasade Mayfield, Personnel Pay Specialist, GS-301-9

     11. Carrie Ross, Personnel Pay Technician, GS-303-8 4

     Training Division, OPT

     12. Pamela Williams, Secretary, GS-318-7

     Program Technical Training Branch, Training Division, OPT

     13. Pamina Haddock, Clerk - Typist, GS-322-4 

     Employment and Classification Division, OPT

     14. Kyong AE. Kitahara, Secretary, GS-318-6

     Staffing and Classification Branch, Employment and
Classification Division, OPT

     15. Yvonne Rorie, Personnel Assistant, GS-203-7

     16. Djana Todd, Personnel Assistant (Typing), GS-203-6

     17. Earl Edwards, Secretary, GS-318-5

     18. Thomas Cooper, Clerk - Typist, GS-322-4

     Benefits and Recruitment Services Branch, Employment and
Classification Division, OPT

     19. Annie Young, Clerk (Typing), GS-303-5

     20. Betty Jean Jones, Clerk (Typing), GS-303-5

     21. Gwendolyn Young, Clerk - Typist, GS-322-4

     Executive Services Branch, Employment and Classification
Division, OPT

     22. Jacquita Barnard, Secretary, GS-318-6

     23. Valerie J. Langley, Secretary (Typing), GS-318-4

     24. Juanita Bailey, Personnel Assistant, GS-203-8

     25. Alice Williams, Personnel Assistant, GS-203-6

     Central Processing Branch, Employment and Classification
Division, OPT

     26. LaVerne Dixon, Lead Personnel Assistant, GS-203-8

     27. Michelle Ham, Personnel Assistant, GS-203-7

     28. Mary Arnett, Personnel Assistant