35:1249(143)CU - - HUD, Washington, DC and AFGE Local 476 - - 1990 FLRAdec RP - - v35 p1249



[ v35 p1249 ]
35:1249(143)AR
The decision of the Authority follows:


35 FLRA No. 143

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

____

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

WASHINGTON, D.C.

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 476

(Labor Organization/Petitioner)

3-CU-80031

3-CU-80032

(34 FLRA 290)

____

DECISION AND ORDER ON REVIEW

May 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority for review of the Regional Director's decision and order on petitions filed by the Petitioner (AFGE). The Authority granted the Agency's application for review in U.S. Department of Housing and Urban Development, Washington, D.C., 34 FLRA 290 (1990).

AFGE's petitions sought to clarify its existing bargaining unit to include certain employees. The Agency's application sought review as to the Regional Director's determination that employees Hannah Klein, Kay Frances Beam, Idress Klemmer, and Jacqueline E. Pinnix should be included in the unit. AFGE did not file an opposition to the application for review.

We granted the Agency's application for review because the Regional Director failed to consider certain of the Agency's contentions as to Klein and failed to make specific findings as to Beam, Klemmer, and Pinnix. We concluded that compelling reasons exist for granting review in order to consider the following issues:

(1) Whether Hannah Klein is (a) an employee engaged in personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3), and/or (b) an employee engaged in administering the provisions of the Statute within the meaning of section 7112(b)(4); and

(2) Whether Kay Frances Beam, Idress Klemmer, and Jacqueline E. Pinnix are confidential employees within the meaning of section 7103(a)(13) of the Statute.

In granting review, we noted that the parties were permitted to submit briefs on the issues upon which review was granted. No supplementary briefs were filed. For the reasons set forth below, we will include employees Klein, Beam, Klemmer, and Pinnix in the appropriate unit.

II. Regional Director's Decision

AFGE is the exclusive representative of a consolidated nationwide bargaining unit of the Agency's nonprofessional employees. With respect to the four employees involved in the application for review, the Agency argued before the Regional Director that they should be excluded from the unit. The Regional Director found that the four employees should be included in the unit.

The Regional Director found that Klein is not a management official within the meaning of the Statute. However, he failed to consider whether, as alleged by the Agency, Klein should be excluded from the unit because she is an employee engaged in personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3), and/or is an employee engaged in administering the provisions of the Statute within the meaning of section 7112(b)(4).

The Regional Director found that 12 employees, including Beam, Klemmer, and Pinnix, are not confidential employees within the meaning of the Statute. He found that:

While many of these [12] employees act in a confidential capacity to HUD officials, the record fails to establish either that they do so with respect to individuals who formulate or effectuate management policies in the field of labor-management relations or that there is an integral relationship between these employees and the individuals they work for when the latter are performing duties in the field of labor-management relations. Additionally, certain of [these] employees were shown to merely occasionally type or otherwise have access to labor relations matters.

Decision at 4. The Regional Director, however, did not identify which of the factors he relied on in drawing his conclusions as to Beam, Klemmer, and Pinnix.

III. The Agency's Application for Review

The Agency contends that the Regional Director should have excluded Klein from the bargaining unit under section 7112(b)(3) and/or (4) of the Statute. The Agency contends that the Regional Director should have excluded Beam, Klemmer, and Pinnix from the unit as confidential employees under the Statute.

A. Hannah Klein, Equal Employment Specialist

Klein works under the supervision of the Director of the Public Employment Division, Office of Program Compliance, under the Assistant Secretary for Fair Housing and Equal Opportunity. The Agency states that the responsibilities of the division include the acceptance, processing, and disposition of equal employment opportunity (EEO) complaints involving the Agency's employees. Klein's duties include maintaining the data base that tracks internal discrimination complaints and producing reports concerning the data. Application at 2. The Agency argues that "the [Agency] considered the position to be excluded under Section 7112(a)(3) and (4) of the Statute because the duties involved both administration of the EEO portion of Title 7 as well as Federal personnel work." Id. at 3.

B. Kay Frances Beam, Secretary (Steno)

Beam is the secretary to the Deputy Director of the Agency's Office of Budget, and works in the same office with Rosa Cunningham, secretary to the Director. The Agency notes that the Regional Director excluded Cunningham from the unit on the basis that she acts in a confidential capacity to the Director, who formulates or effectuates management policy in the field of labor-management relations within the meaning of the Statute. According to the Agency, the Regional Director failed to consider "Beam's status as Cunningham's 'alter ego'" and Beam's "access to and [involvement in] matters pertaining to labor-management relations." Application at 4. The Agency argues that the Deputy Director is just as directly responsible as the Director for "formulating budget policy, including how such policy affects labor-management relations." Id. The Agency argues that it was inconsistent of the Regional Director to exclude Cunningham and include Beam.

C. Idress Klemmer, Secretary (Steno)

Idress Klemmer is the secretary to the Agency's Associate General Counsel for Equal Opportunity and Administrative Law. The Agency states that the Associate General Counsel serves as the legal advisor to the agency on all aspects of administrative law, including labor relations. Application at 5. It also states that he serves as the second line supervisor of attorneys who represent the agency before the Authority and other Administrative agencies. Id. The Agency contends that it is clear from the record that the Associate General Counsel formulates and effectuates labor relations policy and that Klemmer should be excluded from the unit because she serves in a confidential capacity to him.

The Agency also asserts that, since the time of the hearing in this case, the Associate General Counsel has been involved in an increased amount of labor relations activities "which have required him to use Ms. Klemmer in a confidential capacity to a greater degree[.]" Application at 6. The Agency requests us to reconsider our policy of considering only the facts established at the time of a hearing, take this increased post-hearing activity into account, and exclude Klemmer from the unit. Id.

D. Jacqueline E. Pinnix, Secretary (Steno)

Jacqueline E. Pinnix is the secretary to the Director of the Public Employment Division, Office of Program Compliance under the Assistant Secretary for Fair Housing and Equal Opportunity. This is the same office in which Hannah Klein is employed (see above). The Agency states that the responsibilities of the division include the acceptance, processing, and disposition of all EEO complaints involving the Agency's employees.

The Agency states that the Director: (1) reviews documents related to negotiations; (2) is instrumental in the selection or nomination of members of the joint EEO committee that nominated EEO counselors; (3) is directly involved in the settlement of EEO questions arising under the negotiated agreement; and (4) provides guidance to the personnel office on negotiated grievances that concern EEO issues. Application at 7.

The Agency states that all matters pertaining to EEO complaints cross the desk of Pinnix, and she has access to all files related to such matters. Application at 7. The Agency contends that Pinnix therefore should be excluded from the unit because she works in a confidential capacity to an individual [the Director] who formulates and effectuates policy concerning labor relations. Id.

IV. Analysis and Conclusions

Section 7112(b) of the Statute provides:

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

(1) except as provided under section 7135(a)(2) of this title, any management official or supervisor;

(2) a confidential employee;

(3) an employee engaged in personnel work in other than a purely clerical capacity; [or]

(4) an employee engaged in administering the provisions of this chapter[.]

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."

We have reviewed the Agency's application and the entire record in this case, and we make the following findings and conclusions.

A. Hannah Klein

The Regional Director found that Klein is not a management official and included her in the unit. The Agency's uncontradicted contention, as confirmed by our review of the record, is that it argued only that Klein should be excluded because she is: (1) an employee engaged in personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3); and/or (2) an employee engaged in administering the provisions of the Statute within the meaning of section 7112(b)(4). The Regional Director did not address these contentions, which we will now consider.

The record shows that Klein maintains the computerized data that tracks the course of EEO complaints. She reviews complaints for the limited purpose of extracting data such as the dates of filing and actions taken and compiles reports from comparative data. While Klein codes the type of case and the result, she does not analyze the merits or summarize the contents of the complaints, and does not recommend what action should be taken in any case. Klein stated that her job is like that of a computer programmer or management analyst.

We find that, while the duties Klein performs relate to EEO complaints and EEO complaints are personnel actions, Klein's duties are routine in nature, are in accordance with prescribed guidelines, and do not require the exercise of independent judgment or discretion. We conclude that Klein is not an employee engaged in personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3). See, for example, Veterans Administration Medical Center, Prescott, Arizona, 29 FLRA 1313, 1314 (1987); and Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 5 FLRA 339, 342-44 (1981).

The Agency's application does not contain any record references in support of its allegation that Klein is engaged in administering the provisions of the Statute within the meaning of section 7112(b)(4). We have found above that Klein's duties in relation to EEO complaints are routine in nature. Her duties are in clear contrast to the duties of employees in her division classified as EEO specialists, who analyze the merits of complaints and recommend what actions should be taken. The Agency's application does not show how Klein's duties would support a finding that she is engaged in administering the labor relations provisions of the Statute. Further, we find that in view of the routine nature of Klein's duties, her duties do not create a conflict of interest between her duties and union representation if she is included in the unit. Compare Department of Health and Human Services, Region X, Seattle, Washington, 9 FLRA 518, 522-24 (1982). We conclude that Klein is not an employee who must be excluded from the unit under section 7112(b)(4), and we will, therefore, include her in the unit.

B. Kay Frances Beam

The Agency argues that the Regional Director erred by including Beam in the unit. The Agency's argument is focused on the alleged failure of the Regional Director to consider the effect of Beam's role as the "alter ego" of Cunningham and, as a result, her access to and involvement in matters pertaining to labor-management relations.

The Deputy Director testified that he is the Director's "alter ego" with respect to carrying out the mission of the office. The record shows that the Deputy Director has the primary responsibility for the internal management of the Office of Budget. The Deputy Director has taken the Director's place at management meetings when labor-management relations matters have been discussed, but only once or twice in the year prior to the hearing. Further, the Deputy Director has acted as the deciding official in grievances, but only once in the prior year; and he was involved in negotiating with the union once, several years prior to the hearing.

Beam's duties for the Deputy Director include answering and referring his telephone calls, logging and distributing correspondence, and typing all matters for his signature. Beam does not attend meetings with the Deputy Director, has typed his decisions on only one or two grievances, and has not typed any bargaining proposals. Union correspondence is simply passed on to the Deputy Director without her review. Beam does not see personnel actions, and correspondence between management officials goes directly to the Deputy Director. While the record shows that Beam takes the place of Cunningham in Cunningham's absence, it does not reveal how often this occurs. The work Beam described that she performs in Cunningham's absence is limited to the typing, filing and passing on of correspondence in a routine manner.

We have considered the evidence set forth above. In our view, the record does not demonstrate that the Deputy Director formulates or effectuates management policy in the field of labor-management relations for the Office of Budget, or that he does so when acting in the Director's place. Therefore, we find that Beam does not act in a confidential capacity to an individual who formulates or effectuates management policy in the field of labor-management relations. Further, the record does not demonstrate that Beam acts in a confidential capacity to the Director when she takes Cunningham's place.

Accordingly, we find that Beam is not a confidential employee within the meaning of section 7103(a)(13) of the Statute, and we will include her in the unit.

C. Idress Klemmer

The Regional Director found that Klemmer, secretary to the Associate General Counsel, is not a confidential employee. We find that the Agency has not supported its claim that the Regional Director's decision as to Klemmer is clearly erroneous on a substantial factual issue, or that it is a departure from Authority precedent.

The Agency asserts that the Associate General Counsel serves as the legal advisor to the agency on all aspects of administrative law including labor relations. The record shows that the Associate General Counsel is at the third level of authority in the Office of the General Counsel. At the time of the hearing, the Associate General Counsel had participated only once in negotiations involving the Union. That had been with regard to proposed agency regulations governing ethics in Government service generally.

The Associate General Counsel testified that he had not been involved in matters directly concerned with the bargaining unit and was not familiar with the negotiated agreement. He stated that he had been involved in the grievance process only to a very minor extent. He also stated that his principal work was to advise the Assistant Secretary as to budget, contracting and procurement, automated data processing and personnel matters. The Associate General Counsel stated that it was not the responsibility of the Office of the General Counsel to formulate personnel policy.

The record shows that although Klemmer typed memos concerning the Agency's regulations governing ethics in Government service, she has not attended any meetings with the Associate General Counsel that dealt with grievances or negotiating matters. Klemmer testified that she spent 95 percent of her time answering the phone and processing the mail.

The Agency states that, since the hearing, the Associate General Counsel has been much more involved than previously in negotiations and grievances. The Agency requests that we reconsider established Authority policy and take into account these "increased labor relations responsibilities." Application at 6. We decline to change our policy. The Authority bases a bargaining unit eligibility determination only on record testimony as to what duties are performed by an employee at the time of the hearing. See Veterans Administration Medical Center, 29 FLRA at 1315. Moreover, in this case, we are unwilling to base findings on the meager statements of the Agency, which only tend to show increased activity by the Associate General Counsel, but not activity of a different nature than that shown by the record.

We find that the Associate General Counsel is not an individual who formulates or effectuates management policies in the field of labor-management relations. Accordingly, we conclude that Klemmer is not a confidential employee within the meaning of section 7103(a)(13) of the Statute and we will include her in the unit.

D. Jacqueline E. Pinnix

The Regional Director found that Pinnix, secretary to the Director, Public Employment Division, is not a confidential employee. We find that the Agency has not supported its claim that the Regional Director's decision as to Pinnix is clearly erroneous on a substantial factual issue, or that it is a departure from Authority precedent.

The Agency alleges that the Director "reviews documents related to negotiations," "provides guidance concerning negotiated grievances," and "is directly involved in the settlement of EEO questions." Application at 7. The record reveals, however, that the Director does not directly participate in negotiations, the preparation of proposals for negotiations, or the grievance procedure. The Director's role is limited to a review of such matters in order to advise management whether proposals or grievances are consistent with EEO laws and regulations.

The record shows, as alleged, that all matters pertaining to EEO complaints are received by Pinnix, who also has access to the Director's files on such matters. The record reveals that Pinnix spends the majority of her time typing materials dealing with EEO matters within the Agency. The remainder of her time is devoted to the processing of paperwork and with other administrative matters within the department, such as travel and training. Pinnix does not process or type any materials dealing with contract proposals, does not type minutes of or attend meetings dealing with grievances or labor relations matters, and does not have access to any labor relations files or materials.

The Director is involved almost exclusively with the administration of the Agency's internal EEO program. It is not clear whether the Director is involved in formulating or effectuating management policy with regard to the EEO program. It is clear that there is nothing in the record, however, to support the Agency's contention that the Director formulates or effectuates management policy in the field of labor-management relations. Further, the record seems clearly to show that the work of Pinnix is confined to EEO matters and does not entail labor relations matters.

We find that the Director, Public Employment Division, does not formulate or effectuate management policies in the field of labor-management relations. See, for example, Pennsylvania Army National Guard, 8 FLRA 691, 693 (1982). Accordingly, we conclude that Pinnix is not a confidential employee within the meaning of section 7103(a)(13) of the Statute and we will include her in the unit.

V. Order

The bargaining unit for which clarification was sought is clarified to include employees Kay Frances Beam, Hannah Klein, Idress Klemmer, and Jacqueline E. Pinnix. </