35:0181(22)CU - - Army Plant Representative Office, Mesa, AZ and AFGE Local 3973 - - 1990 FLRAdec RP - - v35 p181



[ v35 p181 ]
35:0181(22)CU
The decision of the Authority follows:


35 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. ARMY PLANT REPRESENTATIVE OFFICE

MESA, ARIZONA

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3973, AFL-CIO

(Union)

8-CU-90008

DECISION

March 22, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on the Activity's Application for Review of the Regional Director's Decision and Order on a petition for clarification of unit. The Authority granted the Activity's application in U.S. Department of the Army, U.S. Army Plant Representative Office, Mesa, Arizona, 34 FLRA 120 (1989).

The Activity's Application sought review of that part of the Regional Director's decision concerning the Secretary (Typing), GS-0318-05, position occupied by Deborah Alire. The Regional Director found that Alire should be included in the bargaining unit represented by the Union because she is not a confidential employee within the meaning of section 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute).

In the grant of the Activity's application for review, the Authority asked the parties to submit briefs on the issue of whether Alire is a confidential employee within the meaning of section 7103(a)(13) of the Statute. Pursuant to the Authority's request for briefs, the Activity resubmitted its previous Application for Review and also submitted a copy of the brief it filed in the proceeding before the Regional Director. The Union did not file an opposition to the Activity's Application for Review or a brief.

For the following reasons, we find that Alire is not a confidential employee, within the meaning of section 7103(a)(13) of the Statute, and may be included within the bargaining unit represented by the Union.

II. Background and Regional Director's Decision

On November 28, 1988, the Union was certified as the exclusive representative for the following unit:

Included:
All nonprofessional employees of the U.S. Army Plant Representative Office, Mesa, Arizona.

Excluded:
All professional employees, employees with one-time, temporary appointments of six months or less, management officials, supervisors, and employees described in 5 USC 7112(b)(2), (3), (4), (6), and (7).

Regional Director's Decision at 1.

Thereafter, the Union filed a petition with the Regional Director seeking to clarify the bargaining unit status of Deborah Alire.(*) The Activity argued that Alire should be excluded from the bargaining unit because she is a confidential employee within the meaning of section 7103(a)(13) of the Statute.

The Regional Director noted that section 7112 of the Statute provides that a bargaining unit shall not be determined to be "appropriate" if it includes "a confidential employee." Section 7103(a)(13) of the Statute defines a "confidential employee" as an employee "who acts in a confidential capacity . . . to an individual who formulates or effectuates management policies in the field of labor-management relations." Applying that definition, the Regional Director determined that the issue was "whether [Alire] . . . acts in a confidential capacity to an individual who formulates or effectuates management policies in the field of labor-management relations, and if so, whether the employee acts in a confidential capacity to such individual when the latter is performing duties in the field of labor-management relations." Regional Director's Decision at 6.

The Regional Director determined that Alire's supervisor, the Chief of the Administrative Services Division, does not formulate or effectuate management policy in the field of labor-management relations. The Regional Director noted that the supervisor testified that "she has effectuated no written counsellings, has entertained no grievances, has proposed no removals, has recommended no promotions, has written no performance appraisals, and has pursued no EEO matters." Id. The Regional Director also noted the supervisor's testimony that she does not develop management policy within the division. Id.

The Regional Director noted that in determining "confidential" status, the Authority looks to the actual duties performed by the employee in question rather than position title or classification. In this respect, the Regional Director found that Alire sees personnel actions only occasionally, has not attended any labor-management meetings, and is not expected to provide clerical support in the area of contract negotiations. The Regional Director noted that although Alire has limited access to personnel folders, mere access to labor-management material does not establish confidential status.

The Regional Director also found that clerical support for the Activity's contract negotiating team would be provided by the secretary to the Activity Commander. The Regional Director concluded that because Alire's duties do not require her to act in a confidential capacity to an individual who formulates or effectuates labor-management policy, she should be included in the bargaining unit.

III. The Activity's Application for Review and the Authority's Decision in 34 FLRA 120

The Activity filed an Application for Review of the Regional Director's decision that Alire is not a confidential employee. The Activity argued that the Regional Director's decision (1) raised a substantial question of law because of a departure from Authority precedent; and (2) was clearly erroneous on a substantial factual issue and prejudicially affected the Activity's rights.

In 34 FLRA 120, the Authority granted the Activity's Application for Review. The Authority requested the parties to submit briefs on the following issue:

Whether Ms. Alire is a confidential employee within the meaning of section 7103(a)(13) of the Statute and should, therefore, be excluded from the applicable bargaining unit.

IV. The Activity's Position

Following the Authority's grant of the Activity's Application for Review, the Activity resubmitted a copy of the Application for Review and requested that the Authority reconsider the arguments contained therein. The Activity also requested that the Authority consider pages 11-16 of the brief it filed with the Regional Director. We have considered both documents in this decision.

In its brief, the Activity states that the Activity is headed by a Commander and six division chiefs. The Activity states that "[t]he Chiefs of the Administrative Services, Engineering, Procurement and Production, and Quality Assurance Divisions, in conjunction with the Command group, are responsible for setting labor-management policy at [the Activity]." Brief at 12. The Activity asserts that it is "presently negotiating a bargaining agreement with the Union" and that the division chiefs will play key roles in formulating and responding to bargaining proposals. The Activity notes that "[t]wo division chiefs have received formal training in labor-management relations in anticipation of this effort." Id. at 13.

The Activity contends that the Administrative Services Division is "tasked" with providing clerical support to the Activity's bargaining team and that Alire "will provide typing support on such matters as correspondence with the union, and formal proposals and response on matters affecting the bargaining agreement." Id. The Activity also contends that Alire "will have advance knowledge of management's negotiation strategy and will be expected to work in a confidential capacity." Id. Therefore, the Activity asserts that Alire is a confidential employee.

The Activity argues that this case is similar to the circumstances in United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 31 FLRA 18 (1988) (Federal Corrections Institute), where the Authority determined that the secretary to an associate warden of operations, who formulated labor-management policy, was a confidential employee. The Activity also refers to Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 644 (1980) (Oak Ridge), where the Authority affirmed an administrative law judge's finding that secretaries to division directors and branch chiefs involved in labor-management relations are confidential. The Activity argues that, like the secretaries in Federal Correctional Institution and Oak Ridge, the secretaries at the Activity are "actively involved in typing significant and confidential personnel matters and clearly will be given assignments in the area of labor-management relations based on the confidential nature of their relationship with the division chiefs." Brief at 15.

The Activity contends in its Application for Review that the Regional Director erroneously determined that "'it is the [Activity] Commander's secretary, not Alire, who is expected to provide clerical support in the area of contract negotiations.'" Application for Review at 1. Contrary to the Regional Director's finding, the Activity asserts that Alire is responsible for providing administrative and typing support to the contract negotiating team. The Activity further asserts that the Regional Director's decision conflicts with management's right to assign work under section 7106(a)(2)(B) because Alire's supervisor properly exercised this right by assigning Alire to work for the contract negotiating team. Id. at 2.

The Activity also asserts that the Regional Director's decision departs from Authority precedent because the "focus . . . should not have been on [Alire's supervisor], rather, it is the negotiating team for whom the work is being performed." Id. The Activity asserts that because Alire works in a confidential capacity to the negotiating team, Authority precedent requires her to be considered a confidential employee.

Finally, the Activity contends that in determining "confidential" status, the Authority looks to an employee's actual duties. The Activity contends that "[s]ince Ms. Alire's actual duties require her to perform administrative and typing support for the contract negotiating team . . . she was improperly included in the bargaining unit." Id.

V. Analysis and Conclusion

For the following reasons, we find that Deborah Alire is not a confidential employee within the meaning of section 7103(a)(13) of the Statute.

Section 7103(a)(13) of the Statute defines a "confidential employee" as an employee "who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations." An employee is "confidential" if: (1) there is evidence of a confidential working relationship between an employee and the employee's supervisor, and (2) the supervisor is significantly involved in labor-management relations. See Headquarters, 1947th Administrative Support Group, U.S. Air Force, Washington, D.C., 14 FLRA 220, 225 (1984). An employee is not "confidential" in the absence of either of these requirements. See Tick Eradication Program, Veterinary Services, Animal and Plant Health Inspection Service, United States Department of Agriculture, 15 FLRA 250, 252 (1984) (a training officer was not a confidential employee even though the officer's supervisor engaged in labor relations, because there was no evidence of a confidential working relationship between them); and Federal Mediation and Conciliation Service, 5 FLRA 28, 31 (1981) (a secretary who served a division head in a confidential capacity was not a confidential employee because the division head was not significantly involved in labor-management relations).

Further, bargaining unit eligibility determinations are based on testimony as to an employee's actual duties at the time of the hearing rather than duties which may exist in the future. Veterans Administration Medical Center, Prescott, Arizona, 29 FLRA 1313, 1315 (1987) (Veterans Administration). Bargaining unit eligibility determinations are not based on testimony as to what duties had been or would be performed by an employee occupying a certain position, because such evidence might not reflect the employee's actual duties. Id. See also, U.S. Army Engineer Topographic Laboratories, Fort Belvoir, Virginia, 10 FLRA 125, 127 n.3 (1982) (incumbent employees, who were expected to perform certain duties sometime in the future, were not management officials because they were not performing such duties at the time of the hearing).

The record in this case indicates that Alire's supervisor is designated to be involved in the Activity's negotiations with the Union. The record also indicates that the Activity's Commander directed the Administrative Services Division to be responsible for providing administrative support for the negotiations, including maintaining and drafting proposals. Transcript at 170-72, 184-85. The record also indicates, however, that although Alire may have been designated to provide administrative support to the negotiating team once negotiations begin, she was not engaged in those duties at the time of the hearing. In fact, Alire had not been informed that she would be responsible for providing support to the negotiating team. Transcript at 202-203, 209.

The Activity bases its assertion that Alire is a confidential employee solely on the roles and duties of Alire and her supervisor during future contract negotiations. As noted above, however, there is no evidence in the record that those duties were being performed at the time of the hearing. Although Alire's supervisor may be involved in the formulation of labor-management policy in the future and Alire may provide administrative support to the negotiating team at that time, any findings relating to the future assignment of those duties would be inherently speculative. We determine unit status based on actual duties at the time of the hearing. There is no basis in the record before us on which to conclude that, as of the time of the hearing, Alire was a confidential employee within the meaning of the Statute.

Finally, we reject the Activity's assertion that the Regional Director's decision conflicts with the Activity's right to assign work. Nothing in the Regional Director's decision, or our determination here, affects the Activity's right to assign particular duties to Alire or any other employee. See Veterans Administration. We decide only that, based on the duties actually assigned to Alire as of the time of the hearing, Alire is not a confidential employee within the meaning of the Statute.

VI. Order

The bargaining unit for which clarification was sought is clarified to include Deborah Alire.

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