36:0598(67)CU - - Army, HQ, 101st Airborne Division, Fort Campbell, KY and AFGE Local 2022 - - 1990 FLRAdec RP - - v36 p598



[ v36 p598 ]
36:0598(67)CU
The decision of the Authority follows:


36 FLRA No. 67

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

HEADQUARTERS, 101st AIRBORNE DIVISION

FORT CAMPBELL, KENTUCKY

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2022

(Labor Organization/Petitioner)

4-CU-90008

DECISION AND ORDER

August 10, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on the Petitioner's (Union) Application For Review of the Acting Regional Director's Decision and Order on a petition for clarification of unit. The Authority granted the Union's application in U.S. Department of the Army, Headquarters, 101st Airborne Division, 35 FLRA 213 (1990) (101st Airborne Division).

The Union's application sought review of that part of the Acting Regional Director's decision concerning 10 management analyst positions (Management Analyst Job Nos. A0060, 11730, 12341 and 12628). The Acting Regional Director found that employees occupying these positions should be excluded from the bargaining unit because they are performing personnel work within the meaning of section 7112(b)(3) of the Federal Service Labor-Management Relations Statute (the Statute).

For the following reasons, we find that management analysts occupying Management Analyst Job Nos. A0060 and 11730 are performing personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3) and should be excluded from the bargaining unit. However, we further find that analysts occupying Management Analyst Job Nos. 12341 and 12628 are not performing personnel work within the meaning of section 7112(b)(3) of the Statute and should be included in the bargaining unit.

II. Background

On June 7, 1965, the Union was recognized as the exclusive bargaining representative. On May 15, 1987, an amendment of recognition was filed changing the name of the Activity. The recognized unit is as follows:

All civilian appropriated fund employees of the Army 101st Airborne Division, Air Assault and Fort Campbell and all civilian appropriated fund employees of the U.S. Army Health Services Command - U.S. Army Information Systems Command; and U.S. Troop Support Agency with duty stations at Fort Campbell, Kentucky, excluding all professional employees, temporary employees with appointments of one year or less, employees engaged in Federal personnel work in other than a purely clerical capacity, management officials, guards and supervisors as defined in the Order.

Acting Regional Director's Decision at 2.

Thereafter, the Union filed a petition with the Regional Director seeking to clarify the bargaining unit to include, inter alia, the 10 management analysts noted above. The Activity opposed including these management analysts in the unit on the basis that they perform personnel work within the meaning of section 7112(b)(3) of the Statute.

The Acting Regional Director determined that the eight analysts occupying Management Analyst Jobs Nos. A0060 and 11730 provide management consulting services on all aspects of improving management operations for the installation, including writing work and quality assurance plans, accumulating cost and workload data and conducting management studies. The studies focus on missions, organizations, functions, work processes, methods and procedures and contain recommendations to resolve management problems or to improve the efficiency or economy of operations. The Acting Regional Director further found that the recommendations are routinely put into effect and that in some cases the studies have a direct impact on the personnel of the particular organization being studied. Decision and Order at 11-12.

The analyst occupying Management Analyst Job. No. 12341 functions as the Activity's financial computer specialist. The Acting Regional Director found that the principal duties of that position involved conducting detailed studies, which are presented to directors and managers, relating to automated systems the Activity is contemplating utilizing; designing and developing software for various software systems in various languages; and providing technical expertise on the use of certain systems. Id. at 12-13.

The Acting Regional Director found that the duties of the other analyst, occupying Management Analyst Job No. 12628, involve conducting studies relative to Resource Management Systems for the Directorate of Resource Management and support the operational, analytical and financial program staff of the installation. That management analyst also conducts a variety of complex management studies of budget systems, conducts reviews and recommends action to improve operating efficiency and increase productivity through the use of automation. Id. at 13-14.

Based on the foregoing, the Acting Regional Director found that the 10 analysts are directly involved in performing personnel work affecting the bargaining unit and make recommendations to management concerning such personnel actions. Id. at 15. The Acting Regional Director further found that these personnel functions are more than routine and clerical in nature. Id. Therefore, the Acting Regional Director concluded that the management analysts are engaged in personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3) of the Statute and should be excluded from the bargaining unit.

III. Union's Application for Review and the Authority's Order

The Union asserted in its application for review that the duties of the management analysts do not affect, or have an impact on, other personnel within the meaning of section 7112(b)(3) of the Statute. Noting that the management analysts are staff specialists, the Union argued that the analysts' recommendations do not have any impact on personnel because those recommendations are reviewed by the analysts' supervisors; management often fails to implement the recommendations; and management analysts have not completed a regular management study affecting personnel in over a year. Application For Review at 2-4. The Union also argued that other work performed by the analysts, such as "consulting services" and writing of work and quality assurance plans, does not in any way affect other personnel within the meaning of section 7112(b)(3) of the Statute. Id. at 2.

The Agency opposed the application for review on the grounds that the application simply states a disagreement with the facts found by the Acting Regional Director and merely reiterates the case presented by the Union at the hearing. Agency's Opposition at 2.

In granting the Union's Application For Review, the Authority provided the parties an opportunity to file briefs on the following issue:

whether the management analysts' role or involvement in the conduct of studies and the formulation of recommendations on matters affecting, or having a potential effect on, personnel decisions is of such a nature as to create a conflict of interest between the management analysts' job duties and their union affiliation.

101st Airborne Division, 35 FLRA at 216.

IV. Positions of the Parties

In its brief on the question presented, the Union reiterated its argument that these analysts are staff employees and therefore have no role in any of the recognized areas of personnel administration or operation. Citing to the position-classification standard for management analysts series, the Union argues that the analysts, as staff specialists, only make recommendations to management and do not make the actual decisions. In addition, the Union notes that the analysts' recommendations must first be approved by their supervisors.

Because analysts are not entrusted with the daily personnel decisions affecting bargaining unit employees, the Union argues that there is absolutely no conflict of interest between their job duties and union affiliation. The Union asserts that if a particular situation creates a real conflict of interest, "the active participation or representation o[f] an employee may be proscribed by the application of . . . 5 U.S.C. 7120(e)." Union's Brief at 4.

Responding to the question presented by the Authority in the affirmative, the Activity argues that management analysts improve the effectiveness of management by developing constructive recommendations to solve significant management problems affecting personnel. Management cites various functions of the analysts that result in the abolishment of jobs or the implementation of other personnel actions, such as changes of duties, grade structure levels and work schedules. Activity's brief at 5. In particular, the Activity cites to the effects of the Commercial Activity studies that may determine whether civilian employees will compete for jobs with commercial vendors. Id. at 5-6.

As the management analysts' job is to conduct studies and make recommendations that can and do result in the abolishment of jobs or the implementation of other actions adverse to bargaining unit employees, the Activity asserts that the analysts' interests are adverse to those of other employees. Moreover, the Activity argues that analysts, by regulation and job description, exist only to serve management and could not adequately perform their duties if an affiliation with a competing interest is permitted. Such affiliation, the Activity argues, would compromise the integrity of the thought and judgment process required of management analysts. The Union's attempts to influence the objectivity of analysts are both foreseeable and unavoidable, the Activity argues. Id. at 6.

V. Analysis and Conclusions

Under section 7112(b)(3) of the Statute, a unit will not be found to be appropriate if it includes an employee directly involved in performing personnel work affecting the bargaining unit and making recommendations to management concerning such personnel actions. Social Security Administration, 17 FLRA 239 (1985) (Social Security Administration); Department of Health and Human Services, Region X, Seattle, Washington, 9 FLRA 518, 523 (1982); and Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 5 FLRA 339, 343-4 (1981) (Fort Sam Houston). A position is excluded under section 7112(b)(3) when the character and extent of involvement of the incumbent is more than clerical in nature and the duties of the position in question are performed in a nonroutine manner or are of such a nature as to create a conflict of interest between the incumbent's union affiliation and job duties. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Cincinnati District, Cincinnati, Ohio, 36 FLRA 138, 144 (1990); and Fort Sam Houston, supra. Further, incumbents who exercise independent judgment and discretion in initiating personnel actions or making recommendations to management on personnel actions are excluded from the unit. U.S. Department of Housing and Urban Development, 34 FLRA 207, 214 (1990).

We find that the Acting Regional Director correctly found that the eight analysts occupying Management Analyst Job Nos. A0060 and 11730 are performing personnel work within the meaning of section 7112(b)(3).

The record in this case indicates that these management analysts perform several functions that involve personnel work, or have a significant effect on personnel decisions. They conduct Commercial Activity studies that are designed to permit the Activity to be competitive with private industry and that can determine whether the Activity's work is contracted out, a decision that could result in the loss of jobs for bargaining unit employees. Transcript (Tr.) pp. 76-77, 102-3 and 126-27. In conducting Commercial Activity studies, the analysts conduct a cost comparison between the Government and the Government's "Most Efficient Organization" and, then, a comparison with a potential outside contract to do the same work. Tr. p. 121. To determine the "Most Efficient Organization," they analyze the work load and the activity's organizational structure to determine the most efficient operation that could compete with a potential contractor. Tr. pp. 76, 119-20. In doing so, the analysts determine the essential task that needs to be done and then the personnel, equipment and facility needed to achieve that task. Tr. pp. 76-77. They consider changes in paperwork or workflow, the restructuring of the organization, the redesigning of jobs, changes in the layout of facilities and equipment and the elimination or addition of personnel positions. Tr. pp. 102-3. The "Most Efficient Organization," as thereby composed by the analysts, plays a major role in determining whether the job is contracted out or remains in-house. Tr. pp. 119-20. We reject the Union's assertion that a Commercial Activity study has not been completed in the past year. This argument is merely a disagreement with the Acting Regional Director's decision and is not supported in the record. Indeed, the testimony of the Chief of the Management Analysis Department states that at the time of the hearing there were several active Commercial Activity studies. Tr. p. 109.

In addition to the Commercial Activity studies, the analysts administer the Productivity Capital Investment Program, which is designed to improve the Activity's efficiency through the purchase of, or investment in, equipment for facilities, resulting at times in the reduction of personnel positions. Tr. pp. 103-4. The analysts are involved also in routine management studies; for example, one of the analysts made recommendations regarding the need to expand a facility or to change the number of personnel or the method of operation. He also made recommendations about operating procedures and the management of personnel involved in aircraft maintenance. Tr. p. 115.

Thus, in performing their duties, the analysts exercise independent judgment as to the appropriateness of the Activity's organizational structure, staffing, method of operations and capital investments. We do not agree with the Union's contention that the analysts make no decisions that affect personnel because they only make recommendations that are routinely subject to review. As in Social Security Administration, the analysts involved in this case are management's eyes and ears. They perform their duty of gathering information by going into the field and using their judgment to determine what is occurring and how to make the operations more effective and efficient. Management relies on the analysts' ability to interpret what they observe and to recommend improvements based on their perceptions of what needs to be done.

Further, inasmuch as the analysts' job duties can have a direct impact on the elimination of jobs, the creation of positions and the overall work environment with regard to the bargaining unit, we find that the nature of their job is such that it creates a conflict of interest between their union affiliation and their job duties. Because the analysts' primary function is to recommend to management the most efficient and effective method of performing its mission, their judgment may be clouded by a close association with the Union and their decisions, consciously or unconsciously, may be influenced by their desire to advance the interests of the bargaining unit employees rather than the best interests of management. Thus, the Activity's mission could be undermined if the analysts also have the Union's concerns in mind when performing their duties.

Accordingly, we find that the eight management analysts occupying Management Analyst Job Nos. A0060 and 11730 are performing personnel work in other than a clerical capacity within the meaning of section 7112(b)(3) of the Statute and are excluded from the bargaining unit.

However, we find that the remaining two analysts, occupying Management Analyst Job Nos. 12341 and 12628, are not performing personnel work within the meaning of that section and should be included in the bargaining unit.

The record fails to support a finding that these analysts perform any personnel work or make recommendations that have a direct impact on personnel decisions. As found by the Acting Regional Director, the principal duties of the Activity's financial computer specialist entail conducting studies relating to automated systems the Activity is contemplating using, as well as developing and designing software for various existing systems. Decision and Order at 12. The duties of the other management analyst entail conducting program and budget studies that involve a variety of complex management studies of budget systems, the evaluation of existing or proposed budget systems and the review and recommendation of action to improve efficiency and increase productivity through the use of automation. The duties of these two analysts do not involve personnel work. Rather, they primarily involve the Activity's budgetary or other computerized systems. That is, they are involved with Activity-wide systems, which do not directly involve personnel work or recommendations with regard to individual personnel actions. Therefore, in contrast to the eight analysts discussed above, the nature of the duties of these analysts does not involve them in personnel work or create a conflict of interest between their union affiliation and their job duties.

Accordingly, the Authority finds that the analysts occupying Management Analyst Job Nos. 1