36:0138(16)CU - - Treasury, IRS, Washington, DC and IRS, Cincinnati District, Cincinnati, OH and NTEU and NTEU Chapter 9 - - 1990 FLRAdec RP - - v36 p138



[ v36 p138 ]
36:0138(16)CU
The decision of the Authority follows:


36 FLRA No. 16

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE TREASURY,

INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND

INTERNAL REVENUE SERVICE, CINCINNATI DISTRICT,

CINCINNATI, OHIO

(Activity/Agency)

and

NATIONAL TREASURY EMPLOYEES UNION AND

NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 9

(Labor Organization/Petitioner)

5-CU-90010

ORDER DENYING APPLICATION FOR REVIEW

June 25, 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 Agency under section 2422.17(a) of the Authority's Rules and Regulations.

The Labor Organization/Petitioner (NTEU) filed a Clarification of Unit (CU) petition seeking to clarify its existing bargaining unit to include 14 employees occupying 8 job positions. On February 26, 1990, the Regional Director issued his Decision and Order on Petition for Clarification of Unit, finding that 12 employees in 6 job positions should be included in the bargaining unit, and that the remaining employees should be excluded.

The Agency's application seeks review of the Regional Director's decision and order. NTEU filed an opposition to the application for review.

For the following reasons, the Agency's application for review is denied.

II. Regional Director's Decision

NTEU is the exclusive bargaining representative for a consolidated nationwide unit of employees of the Internal Revenue Service (IRS). NTEU's petition seeks to clarify its unit to include 14 employees in 8 job positions in the Agency's Cincinnati District Office. The Agency argued that all the employees in dispute should be excluded from the unit because they are engaged in personnel work in other than a purely clerical capacity, within the meaning of section 7112(b)(3) of the Statute. In addition, the Agency claimed that four of the employees also should be excluded because they are confidential employees, as defined in section 7103(a)(13) of the Statute.

The Regional Director found, based on testimony and evidence presented at a hearing, that Michelle Charles, Clerk-Typist, GS-322-04, Position Management Section, is a confidential employee and should be excluded from the unit under section 7112(b)(2) of the Statute. He also found that the position of Payroll-Timekeeping Coordinator, GS-203-05, encumbered by Kathie Martini, involves personnel work in other than a purely clerical capacity and should be excluded from the unit under section 7112(b)(3) of the Statute.

The Regional Director found that the remaining six positions do not involve personnel work in other than a purely clerical capacity because the incumbents of these positions perform their duties in a routine manner and in accordance with regulations and established guidelines. Further, the Regional Director found that the incumbents are not required to exercise independent judgment or discretion in carrying out their duties and that the access of several of the incumbents to certain job test information would not create a conflict of interest which would warrant their exclusion from the unit. The Regional Director relied on the Authority decisions in United States Department of the Navy, U.S. Naval Station, Panama, 7 FLRA 489 (1981) (U.S. Naval Station, Panama) and Headquarters Fort Sam Houston, Fort Sam Houston, Texas, 5 FLRA 339 (1981) (Headquarters Fort Sam Houston). Accordingly, he found that the six positions should be included in the unit.

The Regional Director also found, citing U.S. Army Communications Systems Agency, Fort Monmouth, New Jersey, 4 FLRA 627 (1980), that the positions of Staffing Clerk Typist, GS-203-05, Employment Section, Clerical Support Unit and Clerk Typist, GS-322-04, Employment Section, Clerical Support Unit are not confidential. He found that the incumbents in these positions do not act in a confidential capacity to an individual who formulates or effectuates management policies in the field of labor-management relations and, thus, should be included in the unit. He also found, based on United States Department of Justice, Immigration and Naturalization Service, Western Regional Office, 20 FLRA 71 (1985) and Red River Army Depot, Texarkana, Texas, 2 FLRA 659 (1980), that the incumbent of the Clerk Typist, GS-322-04, Employment Section, Clerical Support Unit position, who acts as a back-up to the clerical employee who types for the Labor-Relations Specialists, is not a confidential employee because the incumbent has had only occasional access to labor relations material.

III. The Application for Review

No review is requested of the Regional Director's finding that the positions of Clerk-Typist, GS-322-04, encumbered by Michelle Charles, and Payroll-Timekeeping Coordinator, GS-205-05, encumbered by Kathie Martini, should be excluded from the unit. Further, the Agency does not seek review of the Regional Director's finding that one Clerk Typist, GS-322-04, Rose Threlkeld, should be included in the unit. These findings, therefore, have not been considered in this decision.

The Agency contends that compelling reasons, within the meaning of section 2422.17(c)(1) and (4) of the Authority's Rules and Regulations, exist for granting its application for review. In this regard, the Agency claims that the Regional Director's decision departs from Authority precedent and that the Regional Director's factual determinations are clearly erroneous.

The Agency argues first that the Regional Director erred in finding that Joann Heringer, Betty King, Mary Harris, Melissa Biller and Joyce Mullins, who encumber the positions of Personnel Clerk, GS-203-06, and Personnel Clerk, GS-203-05 (Personnel Processing Section, Personnel and Payroll Processing Unit), should be included in the bargaining unit. The Agency claims that these incumbents perform more than mere clerical duties. In support of its position, the Agency claims that: (1) it takes a substantial amount of time to become familiar with the duties of these positions; (2) the duties of these positions involve a complex interplay among the provisions of the Federal Personnel Manual (FPM), the Internal Revenue Manual (IRM) and operating manuals for the computer systems used to input personnel actions; (3) the incumbents regularly input and effect personnel actions that are the direct product of the collective bargaining agreement; and (4) the incumbents conduct employee orientations, advise prospective employees of the Agency's Rules of Conduct and employee benefits, and initiate background investigations. The Agency further claims that the "Regional Director's Decision and Order is based upon a clearly erroneous review of the facts and marks a departure from the Authority's legal precedent." Application at 6. The Agency cites Environmental Protection Agency, Region VII, Kansas City, Missouri, 14 FLRA 25 (1984), in support of its position.

Second, the Agency contends that Karen Baumann and Peggy Seta, who occupy the positions of Staffing Assistant, GS-203-06, and Staffing Assistant, GS-203-05 (Employment Section, Special Examining Unit), are engaged in personnel work in other than a purely clerical capacity. The Agency alleges that these incumbents' "screening and review duties regarding applicants for the Agency's technical positions demonstrate that they perform more than purely clerical duties." Application at 7. The Agency contends that these incumbents exercise significant judgment and independence in administering the examining unit for Special Agent and Revenue Agent positions within the Central Region of the Internal Revenue Service.

The Agency asserts that Baumann and Seta: (1) are responsible for maintaining the confidentiality and integrity of the testing materials; (2) use judgment to rate applicants; (3) determine whether a college course or work experience meets qualifications requirements; and (4) audit completed certificates to ensure that correct procedures were followed in accordance with laws and regulations. The Agency also notes that Baumann responded to a Congressional inquiry over the non-selection of a constituent. The Agency argues, in this regard, that the Regional Director's decision is "based upon a clearly erroneous view of the facts." Id. at 9. In support of its position that the incumbents should be excluded from the unit, the Agency cites U.S. Department of Housing and Urban Development, 34 FLRA 207, 214 (1990) (HUD); Headquarters Fort Sam Houston; and U.S. Army Aviation Systems Command (AVSCOM) and U.S. Army Troop Support Command (TROSCOM), St. Louis, Missouri, Case No. 57-CU-90003 (1989).

Third, the Agency argues that the Regional Director erred in finding that Marsha Cunningham, Brenda Daulton and Mary Susan Clark, who encumber the position of Staffing Clerk Typist, GS-203-05 (Employment Section-Clerical Support Unit), should be included in the bargaining unit. The Agency alleges that these incumbents are "front line employees in the effectuation and implementation of the collective bargaining agreement between the Internal Revenue Service and the National Treasury Employees Union, and that they perform[] more than purely clerical duties." Application at 11. In support of these contentions, the Agency claims that the incumbents: (1) handle promotion packages in accordance with the parties' collective bargaining agreement; (2) forward notices to the NTEU regarding selections on bargaining unit promotion actions; (3) administer typing or data transcriber tests which require a high degree of security; and (4) spend a minimal amount of time performing purely clerical duties. The Agency argues that the "position descriptions of these employees demonstrate that they exercise a high degree of independence in the performance of their duties." Id. at 12.

The Agency also contends that the Regional Director erred in finding that Ms. Petrie, the incumbents' supervisor, did not formulate or effectuate management policies in the field of labor-management relations. The Agency argues that "[t]he proper statutory construction of 'effectuates' should reasonably include those individuals who directly implement significant provisions of a collective bargaining agreement during the majority of their working hours." Id. at 13. Finally, the Agency claims that the Authority's decision in U.S. Department of the Army, U.S. Army Plant Representative Office, Mesa, Arizona, 34 FLRA 120 (1989), provides compelling reasons for a remand of the Regional Director's decision because the effectuation of a collective bargaining agreement is a direct management responsibility.

Finally, the Agency contends that the position of Clerk Typist, GS-322-04 (Employment Section, Clerical Support Unit), encumbered by Kathryn Ivory, should not be clarified because it was vacated prior to the issuance of the Regional Director's decision. The Agency contends that because the position has not been filled since it was vacated, the Authority should vacate the Regional Director's decision with respect to this position.

IV. Opposition

NTEU argues that the Authority should reject the Agency's "application for review because it constitutes mere disagreement with the ultimate factual conclusions of the Regional Director." Opposition at 3. NTEU contends that the Agency is attempting to relitigate its case before the Authority.

As to the positions of Personnel Clerk, GS-203-06; Personnel Clerk, GS-203-05; Staffing Assistant, GS-203-06; and Staffing Clerk Typist, GS-203-05 (Employment Section, Special Examining Unit); NTEU contends that the Regional Director properly found that the seven incumbents of these positions were not engaged in personnel work in other than a purely clerical capacity. NTEU argues that the Regional Director applied relevant Authority precedent to the facts and properly concluded that the incumbents were not engaged in personnel work in other than a purely clerical capacity. NTEU argues further that the Agency "has failed to identify any specific finding of fact in which the Regional Director erred." Opposition at 5.

NTEU also contends that the Regional Director properly found that the three incumbents in the position of Staffing Clerk Typist, GS-203-05 (Employment Section, Clerical Support Unit), were neither confidential employees nor employees engaged in personnel work in other than a purely clerical capacity. NTEU notes that the Agency presented no evidence to contradict the Regional Director's findings that the incumbents of this position do not exercise a high degree of independence in scheduling, administering and grading tests.

NTEU argues further that the Agency has not substantiated its assertion that these employees should be excluded from the unit under section 7112(b)(2) "because their duties involve the non-discretionary requirements for the contents of a merit promotion package established by a collective bargaining agreement." Id. at 13. NTEU notes that section 7112(b)(2) of the Statute focuses on the supervisor's duties in the field of labor-management relations rather than the employee's duties.

Finally, NTEU contends that the Regional Director properly included Kathryn Ivory, Clerk Typist, GS-322-04, in the unit because, at the time of the hearing, she held that position. NTEU claims that the Regional Director based his decision on the record testimony of Ivory and, in so doing, followed the Authority precedent established in Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52, 53 (1981) (Bureau of the Mint). NTEU argues that the Agency's allegation that Ivory vacated the Clerk Typist position after the hearing but before the Regional Director's decision was not brought to the attention of the Regional Director prior to the issuance of his decision. Consequently, NTEU concludes that this new information does not constitute a ground for granting an application for review because 2422.17(b) of the Authority's

Rules and Regulations precludes an application for review from raising any issue which was not timely presented to the Regional Director.

V. Analysis and Conclusions

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the Agency's application for review.

Under section 7112(b)(3) of the Statute, a unit will not be found to be appropriate if it includes an employee engaged in personnel work in other than a purely clerical capacity. For a position to be excluded under section 7112(b)(3), it must be determined that the character and extent of involvement of the incumbent is more than clerical in nature and that the duties of the position in question are not performed in a routine manner. Further, the incumbent or incumbents must exercise independent judgment and discretion in carrying out the duties. See HUD; Veterans Administration Medical Center, Prescott, Arizona, 29 FLRA 1313 (1987) (VAMC, Prescott); and Headquarters, Fort Sam Houston. Personnel positions which have required the recording and processing of completed personnel actions, maintaining of personnel files, or the screening of actions for technical sufficiency, have been included in bargaining units. See U.S. Naval Station, Panama.

In addition, section 7103(a)(13) of the Statute defines a confidential employee as an individual who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations. For an individual to be excluded from the bargaining unit as a confidential employee, that employee must act in a confidential capacity to a management official who formulates or effectuates labor relations policies. See Department of Transportation, U.S. Coast Guard, 8th Coast Guard District, New Orleans, Louisiana, 35 FLRA 84 (1990) (U.S. Coast Guard).

We find that the Regional Director correctly found, based on Authority precedent as applied to the record before him, that the positions of Personnel Clerk, GS-203-06; Personnel Clerk, GS-203-05; Staffing Assistant, GS-203-06; and Staffing Clerk Typist, GS-203-05; properly are included in the bargaining unit. In particular, we find that the record supports the Regional Director's findings that the incumbents of these positions perform their duties in a routine manner and are not required to exercise independent judgment or discretion in carrying out their duties. Accordingly, there is no basis on which to conclude that these incumbents are engaged in personnel work in other than a purely clerical capacity. See HUD, VAMC, Prescott, Headquarters, Fort Sam Houston and U.S. Naval Station, Panama.

We also find that the Agency has provided no evidence to support its claim that the Regional Director's factual findings were clearly erroneous or that his decision departed from the Authority's precedent. Rather, we find that this argument constitutes mere disagreement with the Regional Director's findings of fact, rationale, and application of Authority precedent, and is an attempt to relitigate the facts of this case.

We further find that the Regional Director correctly found, pursuant to Authority precedent as applied to the record before him, that the position of Staffing Clerk Typist, GS-203-05 (Employment Section-Clerical Support Unit), is properly included in the bargaining unit because the incumbents of this position are neither confidential employees nor employees engaged in personnel work in other than a purely clerical capacity. The record indicates that the incumbents of this position perform their duties in a routine manner in accordance with regulations and established guidelines and are not required to exercise independent judgment or discretion in carrying out their duties. The record also indicates that these incumbents do not act in a confidential capacity to an individual who formulates or effectuates management policies in the field of labor-management relations. See HUD, Headquarters, Fort Sam Houston and U.S. Coast Guard.

In this regard, we reject the Agency's contentions that this position should be excluded as confidential because the incumbents implement a provision of the parties' collective bargaining agreement. Section 7103(a)(13) of the Statute provides that a confidential employee is an individual who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations. Duties and responsibilities relating to implementation of a provision in a collective bargaining agreement do not establish, and the Agency has provided no evidence to indicate, that the incumbents of this position act in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations. See U.S. Coast Guard, 35 FLRA 84, 89. Therefore, we find that the Agency's arguments with respect to this position provide no basis for granting review of the Regional Director's decision.

Finally, we reject the Agency's claim that the position of Clerk Typist, GS-322-04 (Employment Section, Clerical Support Unit), encumbered by Kathryn Ivory, should not be included in the unit because the position has not been filled since it was vacated by Ivory. The position of Clerk Typist, GS-322-04 (Employment Section, Clerical Support Unit), sought to be clarified, was encumbered by Kathryn Ivory and Rose Threlkeld, at the time of the hearing, and both testified as to the duties they performed. Based on their testimony, the Regional Director found that the incumbents perform their duties in a routine manner and in accordance with routine regulations and established guidelines. He further found that these incumbents are not required to exercise independent judgment in carrying out their duties. Accordingly, the Regional Director ordered that the bargaining