40:1249(110)CU - - NLRB and NLRB Union - - 1991 FLRAdec RP - - v40 p1249



[ v40 p1249 ]
40:1249(110)CU
The decision of the Authority follows:


40 FLRA No. 110

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL LABOR RELATIONS BOARD

(Agency/Petitioner)

and

NATIONAL LABOR RELATIONS BOARD UNION

(Labor Organization)

3-CU-00022

ORDER DENYING APPLICATION FOR REVIEW

May 31, 1991

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 National Labor Relations Board Union (the Union) under section 2422.17(a) of the Authority's Rules and Regulations. In his Decision and Order On Petition For Clarification of Unit, the Regional Director found that the recognized bargaining unit should be clarified by excluding all employees in the Agency's Office of Inspector General on the grounds that they are engaged in investigation and audit functions within the meaning of section 7112(b)(7) of the Statute.

The Union seeks review of the Regional Director's decision. The Agency did not file an opposition to the Union's application for review. For the reasons discussed below, we find that the Union has not established any basis for review of the Regional Director's Decision and Order. Accordingly, we deny the application for review.

II. Regional Director's Decision

Since 1969, the Union has been the exclusive representative of a bargaining unit of all nonprofessional employees "under the jurisdiction of the General Counsel on his or her Headquarters Staff." Regional Director's Decision at 1. Following the establishment of the positions of Staff Assistant and of Secretary to the Inspector General, the Agency filed a petition seeking to clarify the bargaining unit to exclude all employees in the Office of Inspector General.

The parties stipulated as to the duties performed by the Staff Assistant and the Secretary. The parties also stipulated that "all employees of the Office of Inspector General, including the Staff Assistant and the Secretary to the Inspector General positions . . . should be excluded from any Agency bargaining unit in which they would otherwise be included because they are engaged in investigation and audit functions within the meaning of section 7112(b)(7) of the Statute." Id. at 3.

Although the Union agreed that all employees of the Office of Inspector General were excludable under section 7112(b)(7) of the Statute, the Union nonetheless argued that the employees "should be excluded on the basis that they are not under the jurisdiction of the General Counsel and, therefore, do not meet the express terms of the unit description." Id. The Regional Director found that: (1) the position descriptions and notices of vacancies for the positions of Staff Assistant and Secretary indicated that the Chairman of the Agency and the General Counsel share concurrent jurisdiction over the positions; (2) the supervisory certifications of the position descriptions were signed by both the Chairman and the General Counsel; and (3) the Inspector General indicated that both the Chairman and the General Counsel share supervision over the Office of Inspector General.

The Regional Director found that the Staff Assistant and the Secretary positions, therefore, are "within the express terms of the unit description"; that is, they "are under the jurisdiction of [the] Office of the General Counsel." Id. at 3-4. The Regional Director concluded that although the positions are "under jurisdiction of the General Counsel, in view of the parties' agreement that the Staff Assistant and the Secretary to the Inspector General are engaged in investigation and audit functions within the meaning of section 7112(b)(7) of the Statute, I find that they should be excluded from the unit." Id. at 4. The Regional Director stated that, absent the filing of an application for review, he would take appropriate action to clarify the bargaining unit "by excluding from said unit all employees in the Office of Inspector General." Id.

III. The Union's Application for Review

The Union contends that the Regional Director erred in finding that the Staff Assistant and the Secretary positions are under the jurisdiction of the Office of the General Counsel. The Union contends that "[s]uch finding on the sole issue in this proceeding is 'prejudicial' to the Inspector General Act of 1978, as amended, and Congressional intent, and further is based on a clearly erroneous fact which also prejudices the rights of the Union." Application for Review at 1.

The Union states that the Joint Explanatory Statement of the Committee of Conference for the Inspector General Act, which was attached to the parties' stipulation to the Regional Director, designates the Chairman of the Agency as the agency head for purposes of the Inspector General Act. The Union argues, therefore, that the Regional Director's finding that employees of the Inspector General are under the jurisdiction of the Agency's General Counsel is clearly erroneous.

The Union does not dispute the Regional Director's finding that the employees of the Inspector General are engaged in investigation and audit functions within the meaning of section 7112(b)(7) of the Statute. Rather, the Union contends that the Regional Director failed to resolve the issue of what unit such employees would be a part of "but for their [section] 7112(b)(7) status." Id. at 2. The Union asserts, in essence, that the Regional Director should have found that the employees of the Inspector General come under the jurisdiction only of the Chairman of the Agency and not under the jurisdiction of the General Counsel. The Union explains that it "has practical concerns about to whom the Agency Inspector General reports and, in turn, who is responsible for the Agency Inspector General's conduct[.]" Id. at 3.

IV. Analysis and Conclusions

We conclude, for the reasons stated below, that no compelling reasons exist within the meaning of section 2422.17 of the Authority's Rules and Regulations for granting the application for review.

The Agency's petition in this case sought a determination by the Regional Director that the bargaining unit in this case be clarified by excluding the employees in the Office of the Inspector General on the grounds that they are engaged in investigation and audit functions within the meaning of section 7112(b)(7) of the Statute. The Regional Director granted the requested clarification, based on the parties' stipulation that the Inspector General's employees are engaged in investigation and audit functions within the meaning of section 7112(b)(7) of the Statute.

As noted above, the Union does not dispute the Regional Director's finding that the Inspector General's employees are engaged in investigation and audit functions within the meaning of section 7112(b)(7) of the Statute. The Union contends, however, that the Regional Director should also have resolved the issue of what bargaining unit the employees of the Inspector General would be a part of if they were not excluded under section 7112(b)(7) of the Statute.

We find that the Union's application presents no basis for review of the Regional Director's decision. Section 7112(b) provides that where, as here, it is determined that employees are engaged in investigation and audit functions within the meaning of subsection (b)(7), no unit shall be found appropriate that would include such employees. There is no dispute that the employees of the Inspector General are engaged in investigation and audit functions within the meaning of section 7112(b)(7). Accordingly, they may not be included in any unit of the Agency's employees.

As there was no dispute before the Regional Director that the employees of the Inspector General are engaged in investigation and audit functions within the meaning of section 7112(b)(7), the Regional Director properly granted the Agency's petition. Contrary to the Union's contention, we find that the Regional Director had no obligation to determine whether the employees of the Inspector General would be excluded from the bargaining unit on any other basis. We find, likewise, that the Authority has no obligation to make such a determination. In this regard, we specifically disavow the Regional Director's finding that the employees of the Inspector General are under the jurisdiction of the General Counsel. That finding was unnecessary to his decision on the petition before him. Moreover, the question of th