41:1226(96)CU - - HUD, HQ and AFGE Local 476 - - 1991 FLRAdec RP - - v41 p1226



[ v41 p1226 ]
41:1226(96)CU
The decision of the Authority follows:


41 FLRA No. 96

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

HEADQUARTERS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 476

(Union/Petitioner)

3-CU-00028

ORDER GRANTING IN PART AND DENYING IN PART

APPLICATION FOR REVIEW

August 23, 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 Agency under section 2422.17(a) of the Authority's Rules and Regulations. The Agency seeks review of the Regional Director's (RD) Decision and Order on Petition for Clarification of Unit. The Union did not file an opposition to the Agency's application. The U.S. Department of Interior (Interior) filed an amicus curiae brief.

The RD found that three Public Affairs Specialists and five Special Assistants were not confidential employees or management officials and, accordingly, should be included in the existing bargaining unit. The RD rejected the Agency's argument that the Special Assistants should be excluded from the unit because they were appointed under Schedule C hiring authority granted the Agency by the Office of Personnel Management (OPM).

For the following reasons, we grant the application insofar as it concerns the RD's decision that the Schedule C Special Assistants should be included in the bargaining unit. We conclude that three of the Special Assistants should be excluded from the unit. We find the record insufficient on which to determine the unit status of an another Special Assistant. We will deny the application as to the remainder of the RD's decision.

II. Background

The American Federation of Government Employees, AFL-CIO (AFGE) is the exclusive representative of a nationwide consolidated unit of nonprofessional employees of the U.S. Department of Housing and Urban Development (HUD). The Union is an AFGE agent for the purpose of representing the Agency's unit employees.

The Union filed a Clarification of Unit (CU) petition seeking to include in its existing unit Public Affairs Specialist positions encumbered by John Flynn, Louis Rotterman and Jacquelyn Conn and Special Assistant positions encumbered by Robert Kelner, Carol Nyce, William Glavin, Karen Griffin and Holly Hopkins. The Agency contended that, except for Griffin and Hopkins, the incumbents should be excluded from the unit as management officials and confidential employees. The Agency also contended that all the Special Assistants should be excluded from the unit because they are Schedule C employees and do not share a community of interest with unit employees.(1)

III. The Disputed Positions

A. Public Affairs Specialists

Rotterman and Flynn are employed in the Office of Public Affairs and are supervised by the Director of Media Relations. Conn is employed in the Office of Public Affairs and is supervised by the Director of the Office of Policy Support.

Rotterman's duties are to respond to requests from persons in the media and maintain transcripts and videotapes of speeches and testimony by the Secretary of HUD and others. Flynn provides information to the public about HUD's policies, procedures and programs and deals with the news media, on a daily basis, concerning HUD operations. Conn provides "publication oversight" of information issued to the public by HUD and prepares speeches and correspondence for signature by the Secretary of HUD. RD's Decision at 4. Conn also acts as the technical monitor and representative for HUD's public affairs contracts, edits material for HUD offices, and is responsible for assuring compliance with HUD's established policy on the use of HUD's "electronic bulletin board." Id.

B. Special Assistants (2)

Glavin, Kelner and Nyce are employed in the Office of Public Affairs. Glavin is supervised by the Director of Media Relations and Kelner and Nyce are supervised by the Director of the Office of Policy Support. These incumbents were appointed under Schedule C hiring authority.

Glavin, who assists the Director of Media Relations and a HUD Assistant Secretary, handles press inquiries, writes press releases, and works on White House conference calls. Although he "participates in the formulation of press and media releases[,]" his recommendations "are subject to several layers of review within HUD." Id. at 3-4.

Kelner researches and prepares speeches and other items for the Secretary of HUD and other HUD employees. He also assists the Director of Media Relations and a HUD Assistant Secretary. Kelner's work is "subject to several layers of review within HUD." Id. at 5.

Nyce drafts speeches and correspondence for the Secretary of HUD and a HUD Assistant Secretary. Her work is "subject to several layers of review within HUD to assure that the matters involved comply with established HUD policies." Id. Nyce also serves as a "conveyor" of HUD policies to the media. Id.

Glavin, Kelner, and Nyce are assigned to projects based on their particular expertise and their "Schedule C status." Id. at 4-5.

IV. RD's Decision

The RD concluded that the disputed employees are not confidential employees, within the meaning of section 7103(a)(13) of the Statute because "the individuals for whom these employees work do not formulate or effectuate management policies in the field of labor-management relations[,]" as required under section 7103(a)(13). Id. at 5. The RD noted, in this regard, that the employees' supervisors had not been involved in grievances or other labor-management relations matters. The RD also noted that although the incumbents could be involved in the issuance of press releases pertaining to labor relations matters, "there was no evidence as to how the formulation of press releases would create a conflict of interest between their jobs and union representation." Id. at 6.

The RD also concluded that the disputed employees were not management officials, within the meaning of section 7103(a)(11) of the Statute, because they do not formulate, determine or influence HUD policies. He noted that the employees do not "have the authority to independently promulgate policy or program statements over their own signature, nor do they possess the authority to impose their views upon HUD managers and their work is subject to several layers of review." Id. at 6-7.

Finally, the RD found that the Special Assistants, including Griffin and Hopkins, should not be excluded from the unit solely on the basis of their Schedule C status. The RD noted that nothing in the Statute expressly excludes Schedule C employees from inclusion in bargaining units. In addition, the RD noted that the Authority found in National Treasury Employees Union and Department of Health and Human Services, Region V, Chicago, Illinois, 25 FLRA 1110 (1987) (NTEU), that a proposal enabling certain excepted service employees to challenge, among other things, adverse actions through a negotiated grievance procedure was negotiable.(3) The RD concluded "that Schedule C employees have a right under the Statute to be covered by a collective bargaining agreement and, therefore, to be included in a Federal sector bargaining unit if otherwise eligible." RD's Decision at 8.

The RD rejected the Agency's contention that the inclusion of Schedule C employees in a bargaining unit was inconsistent with OPM's regulatory authority with respect to such employees. The RD stated that the Authority, not OPM, determined unit status. Moreover, although the RD noted that the method of appointment, promotion and removal of Schedule C employees is different from that of the unit employees, he noted also that many conditions of employment of unit and Schedule C employees are similar, including such matters as compensation, retirement, performance appraisal, and health and life insurance. The RD stated, in this regard, that "Special Assistants have job duties which are similar to unit employees, have regular working contacts with unit employees and share direct supervision in common with unit employees." Id. at 9.

Based on his findings, the RD concluded that the Special Assistants shared a community of interest with unit employees and, as there was no basis on which to exclude any of the disputed positions from the unit, directed that the unit be clarified to include all eight positions.

V. The Application for Review

The Agency seeks review of the RD's decision on the grounds that: (1) a substantial question of law or policy is raised because of the absence of Authority precedent; and (2) the RD's decision on substantial factual issues is clearly erroneous. Although the Agency contends that the RD erred in certain findings with respect to Conn, Rotterman and Flynn, it concedes that Conn is not a confidential employee and that Rotterman and Flynn are not management officials.

A. Schedule C Employees

According to the Agency, the Special Assistants, who were appointed pursuant to Schedule C hiring authority, may not be included in the bargaining unit. In this regard, the Agency asserts that the Authority decision in NTEU does not apply here because it addressed only Schedule A employees. The Agency also asserts that Schedule C employees do not share a community of interest with unit employees. The Agency claims that although the Schedule C employees share a common mission with unit employees, they work in a close and confidential relationship with the Agency's political appointees in a manner unlike unit employees. Further, the Agency contends that the working conditions of Schedule C employees differ from those of unit employees in such areas as hiring, removal, reassignment and transfer, security investigations, and drug testing. The Agency notes that "Congress in enacting legislation providing due process and appeal rights to excepted service employees, specifically excluded Schedule C appointments from coverage . . . ." Application for Review at 3.

The Agency also notes that the specific duties of the Schedule C employees differ from those of unit employees and other excepted service employees. The Agency claims that these "duties are policy determinative or of a confidential nature and may have political implications." Id. at 4. The Agency asserts that because the Schedule C employees are involved in the determination of Agency policy, and require close and confidential relationships with the Secretary of HUD or other key officials, their inclusion in the bargaining unit would not promote effective dealings or efficiency of Agency operations.

In addition, according to the Agency, "there is an inherent conflict of interest with respect to any employee in a Schedule C appointment being in a bargaining unit." Id. at 8. The Agency notes that if Schedule C employees were included in the unit, they could hold Union office and represent bargaining unit employees in grievances before the same officials they work with or for on a daily basis. The Agency states that the Schedule C employees must be excluded from the unit because "[a]lthough a Schedule C appointment does not fit neatly into one of the Statutory exclusions, any other result would . . . be incongruous with the nature of a Schedule C appointment." Id.

Finally, the Agency contends that the inclusion of the Schedule C employees in the bargaining unit would be contrary to 5 C.F.R. § 213.3301. According to the Agency, OPM's use of the term "confidential" in that regulation should be read as encompassing the same term in section 7103(a)(13) of the Statute. The Agency notes that although the Authority is not bound by OPM determinations, it cannot ignore the special status of Schedule C employees when making unit determinations.

B. Rotterman, Flynn, and Glavin

According to the Agency, the RD's decision that Public Affairs Specialists Rotterman and Flynn and Special Assistant Glavin are not confidential employees is based on substantial factual errors. The Agency notes testimony that the employees in question are "responsible for responding to calls from the press, including matters related to labor management relations policy[]" and that "it would be impossible for these employees to respond to the press without knowledge of the policy implications of the matter under question." Id. at 9-10. The Agency also notes testimony that Glavin and Flynn were involved in matters related to labor relations policy, including policy discussions involving cases before the Authority. The Agency maintains further, without elaboration, that Glavin should be excluded from the unit as a management official.

C. Conn

The Agency alleges that the RD erred in finding that Public Affairs Specialist Conn is not a management official. The Agency contends that the record indicates that "Conn effectively formulates [HUD's] publication oversight policy as well as the policy regarding use of the electronic bulletin board[.]" Id. at 12.

D. Nyce and Kelner

The Agency contends that the RD overlooked or failed to evaluate properly facts relating to the duties performed by Special Assistants Nyce and Kelner. According to the Agency, these facts would have formed a basis to exclude them from the unit as either confidential employees or management officials. The Agency states that these employees "perform[] work that is specific to their schedule C appointment, which sets them aside from other employees in Public Affairs as well as other HUD employees." Id. at 12.

VI. Amicus Curiae Brief

Interior claims that Schedule C employees should not be included in bargaining units because such employees do not share a community of interest with other employees. Interior also contends that including the disputed Schedule C employees in the unit would create a conflict of interest. Interior draws an analogy to the National Labor Relations Board's (NLRB) policy of excluding family members of company owners from bargaining units. Interior notes that if a Schedule C employee became a Union officer or active in the Union, the employee would be "at odds and in conflict with the very reason for which the employee was hired; an absence of loyalty to top management would ordinarily be grounds for termination of a Schedule C employee." Amicus Brief at 3.

VII. Analysis and Conclusions

For the following reasons, we conclude that the Agency has established compelling reasons, within the meaning of section 2422.17(c)(1) of the Authority's Rules and Regulations, for granting the application for review insofar as it concerns the Schedule C Special Assistants because the RD's decision raises a substantial question of law or policy because of the lack of Authority precedent. We further conclude, however, that no compelling reasons exist for granting review of the application insofar as it relates to the remainder of the RD's decision.

A. Public Affairs Specialists

As noted previously, the Agency concedes that Rotterman and Flynn are not management officials and that Conn is not a confidential employee.

1. Rotterman and Flynn

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. An employee is not confidential in the absence of either of these requirements. See generally, U.S. Department of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1376-77, 1383 (1990).

The RD found that Rotterman and Flynn are not confidential employees because their supervisor does not formulate or effectuate management policies in the field of labor-management relations. The RD found, in this regard, that there was no evidence that the supervisor had been involved with any grievances, unfair labor practices, or other labor-management relations matters. Although the RD acknowledged that Rotterman and Flynn occasionally were involved in the issuance of press releases pertaining to labor relations matters, he concluded that this involvement alone did not support a conclusion that they were confidential employees.

The Agency disagrees with the RD's findings and conclusions. The Agency has not, however, demonstrated that the RD's decision is based on clearly erroneous findings on substantial factual issues. Accordingly, we find that the Agency has not established a compelling reason, within the meaning of section 2422.17 of our Regulations, for granting its application for review of the RD's conclusion that Rotterman and Flynn are not confidential employees and should, therefore, be included in the existing bargaining unit. See U.S. Department of Labor, Office of Administrative Law Judges, Pittsburgh, Pennsylvania, 40 FLRA 1021, 1024 (1991); U.S. Department of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37 FLRA 239, 244 (1990).

2. Conn

Section 7103(a)(11) of the Statute defines a management official as "an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency." As the Authority held in Department of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172, 177 (1981), management officials are individuals who: (1) create, establish or prescribe general principles, plans or courses of action for an agency; (2) decide upon or settle upon general principles, plans or courses of action for an agency; or (3) bring about or obtain a result as to the adoption of general principles, plans or courses of action for an agency. The term "'to influence'" is synonymous with "'to effectively influence [,]'" and means "to bring about or to obtain a result[.]" Id. at 174-75.

The RD found that Conn does not formulate, determine or influence HUD policies within the meaning of section 7103(a)(11). In this regard, the RD noted, among other things, that she does not have the authority to independently promulgate policy or program statements over her own signature and that her work is subject to several layers of review.

The Agency's application expresses disagreement with the RD's finding that Conn is not a management official. The application does not, however, support the Agency's claim that the RD's decision is clearly erroneous on a substantial factual issue and that such error has prejudicially affected its rights. Accordingly, we deny the application to the extent that it challenges the RD's decision that Conn should be included in the existing bargaining unit. See, for example, U.S. Department of Energy, Headquarters, Washington, D.C., 40 FLRA 264, 270-71 (1991).

B. Special Assistants (4)

The Agency asserts that Special Assistants Hopkins, Glavin, Kelner, and Nyce should be excluded from the existing unit because they were appointed pursuant to Schedule C hiring authority. The Agency also asserts that Glavin, Kelner, and Nyce should, apart from their Schedule C status, be excluded as management officials or confidential employees.

1. Management Officials/Confidential Employees

As discussed more fully above, a confidential employee is one who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations. The RD concluded that Special Assistants Glavin, Kelner, and Nyce are not confidential employees because their supervisors do not formulate or effectuate labor-management relations policies.

In addition, as also discussed more fully above, management officials are employees who: (1) create, establish or prescribe general principles, plans or courses of action for an agency; (2) decide upon or settle upon general principles, plans or courses of action for an agency; or (3) bring about or obtain a result as to the adoption of general principles, plans or courses of action for an agency. The RD concluded that the Special Assistants Glavin, Kelner, and Nyce are not management officials because they do not formulate, determine or influence HUD policies.

Although the Agency disagrees with the RD's conclusions, the Agency has not established compelling reasons, within the meaning of section 2422.17 of our Regulations, for granting review of these aspects of the RD's decision. In particular, the Agency has not demonstrated that the RD's conclusions are based on a clearly erroneous decision on a substantial factual issue and that such error has prejudicially affected its rights. Consequently, we will deny the Agency's application for review insofar as it relates to the RD's findings that, apart from these employees' Schedule C status, they are not confidential employees or management officials.

2. Schedule C Status

It is undisputed that Schedule C employees are not expressly excluded from coverage under the Statute. In particular, neither the definition of "employee" in section 7103(a)(2) of the Statute nor the specific unit exclusions set forth in section 7112(b) of the Statute references Schedule C employees. For the following reasons, however, we conclude that Schedule C employees Glavin, Nyce, and Kelner may not be included in the existing bargaining unit.

We note, at the outset, that under section 7105(a)(2)(A) of the Statute, questions concerning the bargaining unit status of employees are exclusively reserved for final resolution by the Authority. See, for example, U.S. Department of Labor, Mine Safety and Health Administration, Southeastern District and American Federation of Government Employees, Local 2519, 40 FLRA 937, 941 (1991). See also U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847, 850, 852-53 (1988), decision on reconsideration, 36 FLRA 155 (1990). As such, we reject the Agency's assertion that the Schedule C employees involved in this case may not be included in the existing unit because to do so would be contrary to OPM regulations. Put simply, OPM does not have authority to regulate unit status. Accordingly, a determination that a Schedule C employee has a "confidential working relationship with the head of an agency or other key appointed official[]" under 5 C.F.R. § 213.3301 does not compel a conclusion that such employee is "confidential," as defined in section 7103(a)(13) of the Statute. See Interpretation and Guidance, 4 FLRA 754, 758 (1980) ("determinations under title V of status as a supervisor or management official for merit pay purposes does not confer supervisory or managerial status under [the Statute].").

We also note, as set forth previously, that the Authority has not determined the extent, if any, to which Schedule C employees may challenge such matters as adverse actions through negotiated grievance procedures and that issue is not before us here. See n.3. In our view, however, that determination is not necessary to resolve, in general, the unit status question before us or, in particular, to determine that the Schedule C employees share a community of interest with unit employees. We note, for example, that probationary employees may not, as relevant here, challenge their terminations through negotiated grievance procedures. See National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA 848, 851-53 (1991) petition for review as to other matters filed sub nom. Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois v. FLRA, No. 91-1194 (D.C. Cir. 1991). It has long been held, however, that such employees may be included in bargaining units. See Department of the Navy, Navy Exchange, Mayport, Florida, 1 A/SLMR 143 (1971).

Although Schedule C employees are not expressly excluded from inclusion in bargaining units under section 7112 of the Statute, that section provides that a unit is appropriate only if it will "ensure a clear and identifiable community of interest among the employees in the unit . . . ." The RD concluded that the Schedule C Special Assistants share a community of interest with employees in the existing unit. We disagree with respect to Special Assistants Glavin, Nyce, and Kelner.

It is undisputed, in this regard, that fundamental conditions of employment of the Schedule C employees, including their appointments, separations, reassignments, and transfers, differ from those of employees in the existing bargaining unit. The Schedule C employees also are subject to different policies with respect to reductions in force, security investigations, and drug testing. It is clear that, as found by the RD, the Schedule C employees share many working conditions with unit employees, including such matters as compensation, retirement, performance appraisal, and entitlement to health and life insurance. The Authority has not, however, "specified individual factors or the number of such factors needed to conclude that groups of employees share a clear and identifiable community of interest." U.S. Department of Commerce, Patent and Trademark Office, 39 FLRA 96, 101 (1991).

Moreover, as noted previously, Schedule C appointments are made to positions "which are policy-determining or which involve a close and confidential working relationship with the head of an agency or other key appointed officials." 5 C.F.R. § 213.3301. These factors, in turn, affect the nature of the work assigned to and performed by the employees. Given the nature of Schedule C appointments, it would appear that such employees would not, as a general proposition, share a clear and identifiable community of interest with unit employees. Therefore, such employees typically would not be appropriate for inclusion in a bargaining unit. Recognizing that the Authority makes unit determinations based on actual duties performed by employees, however, we do not adopt a per se rule in this matter. Instead, we must consider the duties performed by the Special Assistants in this case to determine their unit status.

The RD found specifically that Special Assistants Glavin, Kelner, and Nyce are assigned work based on their expertise and their "Schedule C status." RD's Decision at 5. That is, the work performed by these Special Assistants is determined by their relationship to Agency political appointees. Based on: (1) the differences in fundamental working conditions between Schedule C employees and other employees; (2) the fact that the work of the Schedule C employees is inherently "policy-determining" or based on "close and confidential working relationship[s]" with key political appointees, 5 C.F.R. § 213.3301; and (3) the RD's findings that Special Assistants Glavin, Nyce, and Kelner are assigned and perform work based on their Schedule C status, we find that these Special Assistants do not share sufficient common interests with employees in the existing unit so as to support a conclusion that they share a clear and identifiable community of interest. As these Special Assistants do not share a clear and identifiable community of interest with unit employees, they may not be included in the unit.(5)

In sum, we hold that the nature of Schedule C appointments coupled with the fact that Special Assistants Glavin, Nyce, and Kelner are assigned and perform work based on their Schedule C status leads to the conclusion that the requisite community of interest has not been established. With respect to Special Assistant Hopkins, the record before us discloses only that she was appointed pursuant to Schedule C hiring authority. There is no evidence in the record, or findings by the RD, with respect to the work performed by Special Assistant Hopkins. In particular, the record is devoid of evidence or findings as to whether Special Assistant Hopkins is assigned and performs work based on her Schedule C status. We will, therefore, remand the petition to the RD for further proceedings concerning Special Assistant Hopkins consistent with this decision.

VIII. Summary

For the foregoing reasons, we conclude that the Special Assistants Glavin, Nyce and Kelner may not be included in the existing unit. The Agency has not established compelling reasons, within the meaning of section 2422.17 of our Regulations, for granting its application for review of the RD's findings that Special Assistants Glavin, Nyce, and Kelner are not confidential employees or management officials. The petition with respect to Special Assistant Hopkins is remanded to the RD for proceedings consistent with this decision.

The Agency has not demonstrated compelling reasons, within the meaning of section 2422.17 of our Regulations, for granting its application for review of the RD's findings that the disputed Public Affairs Specialists are not confidential employees or management officials. Consequently, we deny the application to this extent. We will order the unit clarified to include these positions.

IX. Order

The application for review is granted, in part, and denied, in part. The bargaining unit for which clarification was sought is clarified to include: Public Affairs Specialists Rotterman, Flynn and Conn. The petition with respect to Special Assistant Hopkins is remanded to the Regional Director for proceedings consistent with this decision.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. 5 C.F.R. § 213.3301 provides the following, in pertinent part, regarding Schedule C hiring authority:

§ 213.3301 Positions of a confidential or policy-determining character.

Upon specific authorization by OPM . . . agencies may make appointments under this section to positions which are policy-determining or which involve a close and confidential working relationship with the head of an agency or other key appointed officials. Positions filled under this authority are excepted from the competitive service and constitute Schedule C. . . .

2. The record contains no information concerning the duties performed by Griffin and Hopkins. The Agency's sole contention to the RD regarding these employees was that they should be excluded from the unit because they were appointed under Schedule C hiring authority. See also n.4.

3. NTEU was reversed by the United States Court of Appeals for the Seventh Circuit. Department of Health and Human Services v. FLRA, 858 F.2d 1278 (7th Cir. 1988). Subsequently, the Authority held that nonpreference-eligible excepted service employees were precluded by law from challenging major adverse actions and performance-based actions through negotiated grievance procedures. See, for example, National Labor Relations Board and National Labor Relations Board Professional Association, 35 FLRA 1116 (1990). Based on the Civil Service Due Process Amendments, Pub. L. No. 101-376, 104 Stat. 461 (1990) (Amendments), however, the Authority held negotiable a provision enabling certain nonpreference-eligible excepted service employees to challenge adverse actions through negotiated grievance procedures. National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 359 (1991) (SSA). The disputed provision in SSA did not address Schedule C employees.

4.   It is undisputed in the record before us that Special Assistant Karen Griffin is no longer employed by the Agency. As there is no indication in the record that this position is now encumbered, and as the Authority does not resolve questions concerning the unit status of vacant positions, we will not address Griffin's position further. See, for example, United States Attorneys Office for the District of Columbia, 37 FLRA 1077, 1082 (1990).

5. It is unnecessary, in this regard, to address claims by the Agency and Interior that the disputed Schedule C employees must, consistent with NLRB policy, be excluded from the existing unit based "on the 'family member' theory[.]" Amicus Brief at 2. That policy is an "application of [the NLRB's] 'community of interest' standard." NLRB v. Action Automotive, Inc., 469 U.S. 490, 496 (1985) (footnote omitted). Under the policy, "the family member is excluded, if at all, because the Boa