37:0239(16)CU - - DOI, Bureau of Reclamation, Yuma Project Office, Yuma, AZ and NFFE Local 1487 - - 1990 FLRAdec CU - - v37 p239



[ v37 p239 ]
37:0239(16)CU
The decision of the Authority follows:


37 FLRA No. 16

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF INTERIOR

BUREAU OF RECLAMATION

YUMA PROJECTS OFFICE

YUMA, ARIZONA

(Activity)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1487

(Labor Organization/Petitioner)

8-CU-00002

DECISION AND ORDER ON APPLICATION FOR REVIEW

September 14, 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 Department of the Interior (Agency) under section 2422.17(a) of the Authority's Rules and Regulations seeking review of the Regional Director's Decision and Order on Petition for Clarification of Unit. The Regional Director found that the positions of: Secretary, GS-318-6/7, (Project Manager), encumbered by Barbara Newhard; and Secretary (Typing), GS-318-6/7 (Operations and Maintenance), encumbered by Pamela Drapala, should be included in the bargaining unit because they were not confidential employees within the meaning of section 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute). The Petitioner (Union) filed an opposition to the application for review.

We grant the application for review and find, contrary to the Regional Director, that Barbara Newhard and Pamela Drapala are confidential employees within the meaning of the Statute and may not be included in the bargaining unit represented by the Union.

II. Background and Regional Director's Decision

On August 2, 1989, the Union was certified as the exclusive representative in a unit of all General Schedule, nonprofessional employees, including part time and temporary employees, of the Yuma Projects Office, Bureau of Reclamation, Yuma, Arizona. Thereafter, the Union filed a petition with the Regional Director seeking to clarify the bargaining unit status of the following five positions: Secretary (Typing), GS-318-5, (Desalting Division), encumbered by Marsha Ford; Secretary, GS-318-5 (Maintenance Division), encumbered by Elsa Rodriguez; Secretary (Typing), GS-318-6/7 (Operations and Maintenance), encumbered by Pamela Drapala; Secretary (Typing), GS-318-5, (Dredging Division), encumbered by Norma Macias; and Secretary, GS-318-6/7, (Project Manager), encumbered by Barbara Newhard.

During the course of the hearing, the parties stipulated: (1) that there was no basis under section 7112(b) of the Statute for excluding the position of Secretary (Typing), GS-318-5, (Desalting Division); and (2) that the position of Secretary (Typing), GS-318-5, (Dredging Division) was excluded under section 7112(b)(1). Also at the hearing, the Union amended its petition by removing the position of Secretary, GS-318-5, (Maintenance Division) because the position was vacant. Consequently, only two positions remained in dispute: Secretary, GS-318-6/7, (Project Manager), encumbered by Barbara Newhard, and Secretary (Typing), GS-318-6/7 (Operations and Maintenance), encumbered by Pamela Drapala.

The Regional Director concluded that Barbara Newhard was not a confidential employee within the meaning of the Statute. The Regional Director determined that Newhard's supervisor, Harold Pritchett, Assistant Project Manager, was extensively involved in labor-management policy issues and, on this basis, concluded that Pritchett formulated management policies in the field of labor-management relations under section 7103(a)(13), relying on Tick Eradication Program, Veterinary Services, Animal and Plant Health Inspection Service, United States Department of Agriculture, 15 FLRA 250 (1984) (Tick Eradication Program). The Regional Director found that Pritchett: (1) was involved in formulating working rules policy and project positions for negotiations with the Union; (2) reviewed all personnel actions such as promotions, reassignments, and disciplinary actions; (3) set out management's position for the negotiators representing management and determined the budget implications of proposals; (4) was involved in the grievance procedure at the second step; and (5) formulated contract language for mediation and arbitration proceedings.

The Regional Director found that at the time of the hearing Newhard: (1) reported to both Pritchett and the Project Manager but that Pritchett was responsible for supervising Newhard; (2) arranged travel for the two managers; (3) kept their calendars; (4) did the mail; and (5) typed and copied material. The Regional Director also found that Newhard had access to a locked desk containing confidential files but had never reviewed the files and had not typed any grievance responses. The Regional Director found that Pritchett considered Newhard to have a conflict of interest because of her access to information about management's positions and strategies for labor-management negotiations and that Pritchett expected Newhard to have more responsibility in the future concerning labor-management relations activities. Based on the duties actually performed by Newhard during her six months in the position, however, the Regional Director determined that Newhard only performed duties of a purely clerical nature and, therefore, did not act in a confidential capacity to Pritchett for labor-management purposes, relying on U.S. Army Plant Representative Office, Mesa, Arizona, 35 FLRA 181 (1990) (U.S Army, Mesa); U.S. Department of Labor, 33 FLRA 265, 268 (1988); Veterans Administration Medical Center, Prescott, Arizona, 29 FLRA 1313 (1987) (VA, Prescott).

The Regional Director also concluded that Pamela Drapala was not a confidential employee within the meaning of the Statute. The Regional Director determined that Drapala's supervisor, Edward Lohman, Operations and Maintenance Superintendent, was actively involved in effectuating management policies in the field of labor-management relations under section 7103(a)(13), citing Tick Eradication Program. The Regional Director found that Lohman: (1) participated in meetings to establish management's position on labor-management issues; (2) established management's position on contract language and employee pay rates; (3) had authority to take disciplinary action; (4) effectuated promotions and transfers; and (5) gave performance evaluations and awards.

The Regional Director determined that, although the record testimony indicated that Lohman had future plans to involve Drapala in the process of effectuating management policies in the field of labor relations, there was no evidence at the time of the hearing to indicate that Drapala served in a confidential capacity to Lohman, relying on VA, Prescott and Tick Eradication Program. The Regional Director emphasized that Drapala did no typing and very little filing of labor-management materials and that her involvement, at this time, in the process of effectuating management policies in the field of labor relations was clearly of a purely clerical nature. However, the Regional Director also found that Drapala: (1) typed position descriptions, awards, promotions, rehirings, and performance appraisals of division chiefs and office heads; (2) typed documentation on disciplinary actions and investigations but had no input into the decision itself unless the action involved a clerical employee, which had not occurred; (3) compiled wage comparisons used in establishing management's position on wage offers but had not been asked to comment on the data; (4) maintained Lohman's labor relations files but had not typed any adverse actions, disciplinary actions, reprimands, or responses to grievances or other labor relations correspondence; (5) acted as a sounding board for management's bargaining proposals; (6) provided input to management's proposals to the Union but usually was not present when strategy was proposed and had not attended or typed notes of a meeting where management formulated proposals for contracts; (7) handled confidential mail; (8) could assist in resolving Step 1 grievances but had not done so; (9) attended staff meetings with the Division Chiefs; and (10) substituted for Newhard.

III. The Application for Review

The Agency does not directly state which of the grounds, under section 2422.17(c) of the Authority's Rules and Regulations, is the basis for its application for review. The Agency alleges that, if the Authority finds that there is insufficient record evidence, the hearing officer should be found to have committed prejudicial error because the hearing officer did not clarify for the witnesses the meaning of "labor-management relations" under section 7103(a)(13).

The Agency states that it seeks to have the Authority review the series of Authority case decisions concerning confidential employees and to have the Authority follow the National Labor Relations Board case law on confidential employees. The Agency argues that when making confidential employee determinations the Authority: (1) should consider an employee's confidential role in management's decision-making process concerning conditions of employment rather than just an employee's duties regarding the union-management relationship; (2) should not require that an employee perform a certain amount of labor relations duties; and (3) should not rely on the specific duties actually being performed by an employee at the time of the hearing.

The Agency contends that the Regional Director did not base his findings on the record evidence and erroneously determined that Barbara Newhard and Pamela Drapala were not confidential employees under the Statute. The Agency argues that the Regional Director ignored the uncontroverted testimony that Newhard: (1) handled personnel documents concerning promotions, incentive awards, and performance awards for Pritchett; (2) was aware of personnel and labor relations actions that management was considering before they were accomplished; (3) was privy to discussions between Pritchett and the Project Manager concerning labor relations matters; and (3) was present and took the minutes at confidential top management meetings where labor relations matters were discussed.

Regarding Drapala, the Agency argues that the Regional Director erred in stating that "there is no evidence to indicate that Drapala currently serves in a confidential capacity to [Lohman]." Regional Director's Decision at 5. The Agency maintains that Drapala is part of management; it considers significant that Drapala: (1) attended staff meetings and took notes; (2) compiled the data for wage offers during negotiations with the Union; (3) was consulted by management as a sounding board concerning proposals to the Union; and (4) was privy to management's confidential conversations regarding organizational changes and disciplinary actions.

IV. The Opposition to the Application

The Union contends that the Agency does not set forth the necessary argument to substantiate review of the Regional Director's decision under section 2422.17(c) of the Authority's Rules and Regulations. The Union argues that the Agency's appeal constitutes nothing more than mere disagreement with the Regional Director's decision, Authority precedent, and the Statute's definition of confidential employee. The Union states that the Agency's argument that the determination of Newhard's and Drapala's involvement in labor relations matters should not be limited to present specific duties but should include the future needs of the organization is contrary to U.S. Department of Housing and Urban Development, Washington, D.C., 35 FLRA 1249 (1990) (HUD).

V. Analysis and Conclusions

We conclude that compelling reasons exist within the meaning of section 2422.17(c) of our Rules and Regulations for granting the application for review. We grant the Agency's application for review on the ground that a substantial question of law or policy is raised because of an absence of, or a departure from, Authority precedent regarding the circumstances when an employee acts in a confidential capacity within the meaning of section 7103(a)(13). We also conclude that the Agency's arguments urging the Authority to review the series of Authority case decisions concerning confidential employees and to change its precedent to follow certain aspects of the National Labor Relations Board case law on confidential employees do not, in the circumstances of this case, establish a basis under section 2422.17(c)(2) for reviewing the Regional Director's decision. Finally, we conclude that Barbara Newhard, Secretary, GS-318-6/7, (Project Manager) and Pamela Drapala, Secretary, GS-318-6/7, (Operations and Maintenance) are confidential employees within the meaning of the Statute and may not be included in the bargaining unit represented by the Union.

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. U.S. Army, Mesa, 35 FLRA at 186 (citing Headquarters, 1947th Administrative Support Group, U.S. Air Force, Washington, D.C., 14 FLRA 220, 225 (1984)). See Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Cincinati District, Cincinati, Ohio, 36 FLRA 138, 144-45 (1990); Department of Transportation, U.S. Coast Guard, 8th Coast Guard District, New Orleans, Louisiana, 35 FLRA 84, 87-89 (1990); U.S. Department of Housing and Urban Development, 34 FLRA 207, 211-13 (1990); Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 5 FLRA 339, 341-43 (1981). An employee is not "confidential" in the absence of either of these requirements. U.S. Army, Mesa, 35 FLRA at 186 (citing Tick Eradication Program, 15 FLRA at 252; Federal Mediation and Conciliation Service, 5 FLRA 28, 31 (1981)).

We base bargaining unit eligibility determinations on testimony as to an employee's actual duties at the time of the hearing rather than on duties that may exist in the future. HUD, 35 FLRA at 1256-57; VA, Prescott, 29 FLRA at 1315. Bargaining unit eligibility determinations are not based on evidence such as written position descriptions or 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. (citing Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52, 53 (1981). 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 those duties were not actually assigned to them at the time of the hearing).

In this and future cases involving a determination as to the bargaining unit status of an employee who has recently encumbered a position, we will consider duties to have been actually assigned where: (1) it has been demonstrated that, apart from a position description, an employee has been informed that he or she will be performing the duties; (2) the nature of the job clearly requires those duties; and (3) an employee is not performing them at the time of the hearing solely because of lack of experience on the job. On the other hand, we will consider duties not yet performed by a new incumbent not to have been actually assigned where: (1) the assignment of duties is speculative because the nature of the job may change or the nature of the job does not require such duties; or (2) although duties may be included in a written position description, it is not clear that the duties actually will be assigned to an employee or that an employee has been informed that he or she will perform those duties.

Based on the application of the facts developed in the record to the criteria set forth above, we find that employees Barbara Newhard, Secretary, GS-318-6/7, (Project Manager) and Pamela Drapala, Secretary (Typing), GS-318-6/7 (Operations and Maintenance) are confidential employees and should be excluded from the unit.

A. Barbara Newhard, Secretary, GS-318-6/7, (Project Manager)

The Regional Director determined that Newhard's supervisor, Harold Pritchett, Assistant Project Manager, was extensively involved in labor-management policy issues and, on this basis, concluded that Pritchett formulated management policies in the field of labor-management relations under section 7103(a)(13). We agree based on the Regional Director's factual findings set forth above.

The record shows that the nature of Newhard's job clearly requires her to act in a confidential capacity to Pritchett and the Project Manager with respect to labor-management relations and that Newhard has been told that she will be performing duties where she will be acting in a confidential capacity to Pritchett. Newhard's written position description indicates that her function is to provide administrative support for the Project Manager and the immediate staff and that she serves as a confidante to management in sensitive matters ranging from personnel problems to policy matters which cannot be prematurely disclosed to other personnel. Activity Exhibit 2 at 4. Pritchett stated that he considers Newhard to be a confidential employee "in the sense that she's aware of a lot of personnel actions and labor relations actions that management is considering before they're accomplished." Transcript at 21. Pritchett also stated that Newhard will "have information of management's position, and the strategies that [management is] developing for negotiations" and will be maintaining labor relations files for him. Id. During the six months that Newhard has been in her position, she has been learning the organization. Pritchett expects that "[o]nce she gets up to speed, which is getting awful close, she will be involved in all of [the meetings where management formulates its bargaining proposals]" just like her predecessor had. Transcript at 25. Thus, the record establishes that such duties are part of Newhard's job now and that she would be actually performing them but for her lack of experience on the job. The circumstances of the present case are unlike those cases, such as U.S. Army, Mesa, where management claims that it intends to add duties to a position later but where such a future assignment is wholly speculative.

The record shows that Newhard expects to perform duties which require her to act in a confidential capacity to Pritchett with respect to labor-management relations. Newhard stated that it was her understanding that she would be part of the management team and be the only secretary attending meetings where labor-management matters will be discussed. Transcript at 46, 56. She expects to continue preparing personnel documents concerning promotions, incentive awards and performance awards and maintaining confidential files for Pritchett. Transcript at 41. The record also shows that management expects Newhard's involvement in labor-management activities to increase as her experience on the job increases. Transcript at 25, 37-38.

We conclude that Newhard acts in a confidential capacity to an individual who formulates or effectuates management policies in the field of labor-management relations. Thus, we find that the nature of Newhard's position in the organization; the assignment of certain duties to her; and the expectations on the part of both Pritchett and Newhard that when she gains more experience she will perform those duties indicate that Newhard will be acting in a confidential capacity to Pritchett when he is performing labor-management relations duties. See United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 31 FLRA 18, 19 (1988) (FCI, Bastrop) (secretary found to be confidential employee where position description shows that she has been assigned responsibility for typing and maintaining labor-management relations files and supervisor informed her that she would be given assignments in labor-management relations and related confidential matter