40:1021(89)CU - - DOL, Office of Administrative Law Judges, Pittsburgh, PA and AFGE, National Council of Field Labor Locals, Local 644 - - 1991 FLRAdec RP - - v40 p1021
[ v40 p1021 ]
The decision of the Authority follows:
40 FLRA No. 89
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 Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Regional Director's decision and order on petition for clarification of unit. The Regional Director found that a Lead Legal Technician (Typing), GS-0986-08, should be included in the bargaining unit because she was not a confidential employee 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.
For the following reasons, we deny the application for review.
II. Background and Regional Director's Decision
The Petitioner is certified as the exclusive representative of the following unit:
All employees in field duty stations of the Department of Labor, including field duty stations located within the Washington, D.C. metropolitan area, except non-clerical employees of the Labor-Management Services Administration and employees serving in temporary appointments of less than one year's duration, and excluding all management officials, supervisors, employees who assist and act in a confidential capacity to persons responsible for formulating and effectuating the Department of Labor's labor relations policies, employees engaged in personnel work in other than a purely clerical capacity, and other statutory exclusions not relevant herein.
Regional Director's (RD's) Decision at 2. In this case, the Petitioner seeks to clarify the unit by including the position of Lead Legal Technician (Typing), GS-0986-08, in the Office of Administrative Law Judges, District Office, Pittsburgh, Pennsylvania. The Lead Legal Technician position is encumbered by Mary Ann Avolio, who works under the general supervision of the District Chief Administrative Law Judge (the District Chief Judge).
The Regional Director stated that, consistent with U.S. Department of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37 FLRA 239, 244 (1990) (DOI, Yuma), an employee is "confidential," within the meaning of section 7103(a)(13) of the Statute, only if there is a confidential working relationship between the employee and his or her supervisor and the supervisor is involved significantly in labor-management relations. The Regional Director noted that there was no dispute that there was a confidential working relationship between Avolio and the District Chief Judge. The Regional Director determined, however, that the District Chief Judge was not involved significantly in "formulating or effectuating management policies in the field of labor-management relations." RD's Decision at 5.
According to the Regional Director, the District Chief Judge "refers questions concerning personnel or labor relations policy to [the Office of the Assistant Secretary for Administration and Management] for its decision and action[,]" and that Office is "solely responsible for dictating the Activity's response." Id. at 6. The Regional Director concluded that as Aviolo does not serve in a confidential capacity to an individual who formulates or effectuates management policies in labor-management relations within the meaning of the Statute, Avolio should be included in the Petitioner's bargaining unit.
III. Application for Review
The Activity asserts that review of the RD's Decision is warranted because: (1) a substantial question of law or policy is raised because of a departure from Authority precedent regarding the definition of a confidential employee and (2) the RD's decision on a substantial factual issue is clearly erroneous and such error has prejudiced the Activity's rights.
With respect to the first argument, the Activity asserts that the Regional Director "failed to reconcile his finding that the [District Chief Judge] was not engaged in formulating or effectuating management policy with case law which establishes that the authority to hire, fire, discipline, approve or deny leave and to handle and resolve grievances constitutes the authority to formulate or effectuate such policies." Application at 4. With respect to the second argument, the Activity maintains that the Regional Director reached "an incomplete and inaccurate statement of the role of the District Chief Judge." Id. at 2. According to the Activity, the District Chief Judge "effectuates management labor-relations policy in the substantive decisions he makes regarding compensation, assignments and working conditions . . . ." Id. at 4.
IV. The Union's Opposition
The Union contends that the Regional Director correctly found that the Lead Legal Technician is not a confidential employee within the meaning of section 7103(a)(13) of the Statute. According to the Union, the record establishes that the District Chief Judge's authority concerning promotions, leave usage, discipline and performance evaluations and awards: (1) is the same as any other supervisor or manager in the Department of Labor, (2) is exercised in accordance with published agency policies and provisions of the parties' collect