45:0894(84)RP - - HHS, Office of the General Counsel, Baltimore, MD and AFGE Local 1923 - - 1992 FLRAdec RP - - v45 p894



[ v45 p894 ]
45:0894(84)CU
The decision of the Authority follows:


45 FLRA No. 84

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

OFFICE OF THE GENERAL COUNSEL

BALTIMORE, MARYLAND

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923, AFL-CIO

(Union/Petitioner)

3-CU-10026

3-CU-10027

3-CU-10028

3-CU-10029

3-CU-10030

_____

ORDER DENYING APPLICATIONS FOR REVIEW

August 13, 1992

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on applications for review filed by the Activity and the Union under section 2422.17(a) of the Authority's Rules and Regulations. The parties seek review of the Regional Director's (RD) decision and order on petitions for clarification of unit. The RD found that an administrative support technician and an office support assistant should be included in the bargaining unit represented by the Union and that three secretaries should be excluded from the unit. The Activity also filed an opposition to the Union's application.

For the following reasons, we deny the applications for review.

II. Background and Regional Director's Decision

The Union has been the exclusive representative of a unit of the Activity's nonprofessional employees since 1979. The Union filed petitions seeking to clarify this unit to include an administrative support technician, an office support assistant, and three secretaries, Sandra Felty, Nancy Marsh, and Mary Zurhusen.

The RD found that the secretaries are each assigned to Deputy Associate General Counsels (DAGCs) for whom they provide "the sole source of administrative and clerical support . . . ." RD's Decision at 7. Among other duties, the RD found that these secretaries process incoming and outgoing mail and assist in compiling personnel and labor-management information to assist the DAGCs in preparing for meetings and making decisions. The RD also found that the DAGCs "effectuate management policies in the field of labor-management relations . . . ." Id. In this regard, the RD found that each DAGC handles grievances, is "consulted by the Activity regarding proposed collective bargaining agreement provisions," and "attend[s] regular meetings at which labor relations matters are discussed." Id. at 6. Accordingly, the RD concluded that the secretaries are confidential employees with respect to an individual who formulates or effectuates management policies within the meaning of section 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute).

The RD also found that the administrative support technician and the office support assistant do not perform personnel work in other than a clerical capacity within the meaning of section 7112(b)(3). In this regard, the RD concluded that the technician and the assistant perform clerical duties related to personnel matters "within prescribed guidelines and regulations which require, little, if any, independent discretion or judgment." Id. at 4, 6. Accordingly, the RD included these positions in the unit.

III. Positions of the Parties

In its application for review, the Union asserts that a substantial question of law and policy is raised because the RD departed from Authority precedent concerning the bargaining unit status of confidential employees. The Union also argues that the RD's decision that the secretaries should be excluded from the bargaining unit is clearly erroneous "in light of the substantial evidence adduced at hearing[.]" Union's Application at 2. In support, the Union argues that the evidence "at best, simply demonstrates that there exists the occasional participation of the [secretaries] in disciplinary actions, grievances, and employee appraisals[]" and that there is no evidence that the secretaries "attend any meetings regarding grievances, adverse actions, disciplinary actions, bargaining sessions, [or] meetings where labor-management matters are discussed." Id. at 11 (emphasis in original). Further, the Union asserts that the DAGCs are not "significantly involved in formulating or effectuating management policies in the field of labor-management relations." Id. (emphasis in original). In opposition to the Union's application, the Activity argues that the record "amply" supports the RD's conclusions and that his decision is "squarely supported by precedent." Opposition at 1.

In its application for review, the Activity argues that the RD did not make "specified findings" concerning the administrative support technician and office support assistant positions and that this failure resulted in prejudicial error under section 2422.17(c)(3). Activity's Application at 9. According to the Activity, the RD erred in failing to find that the incumbents of these positions exercise discretion, provide advice to managers, and have "responsibilities . . . so aligned with those of management as to compel a conclusion that these positions should be excluded from the bargaining unit." Id. at 12.

IV. Analysis and Conclusions

We conclude, for the following reasons, that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting either application for review.

A. Union's Application

Section 7103(a)(13) 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. Department of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37 FLRA 239, 244 (1990).

Initially, we note that the Union does not dispute the RD's conclusion that each secretary has a confidential working relationship with the DAGC for whom she works. Rather, the Union's contention is that the record does not support the RD's conclusion that the DAGC's are significantly involved in labor-management relations.

We disagree with the Union's contention. The RD found, and the record supports, that each DAGC handles grievances, has been "consulted by the Activity regarding proposed collective bargaining agreement provisions," and "attend[s] regular meetings at which labor relations matters are discussed." RD's Decision at 6. Specifically, the record shows that the DAGC who is the chief deputy to the Associate General Counsel for the Social Security Division is designated as the third level official for some grievances and is "[v]ery involved" in formulating management's bargaining proposals. Transcript at 323. The record also demonstrates that the DAGC for Disability Litigation reviews grievances at the first and second levels and has also "written proposals" for the Activity to use in bargaining with the Union. Id. at 191. Finally, the DAGC for Social Security Programs is a second level grievance official and has heard arguments and "issued a formal decision" answering a grievance. Id. at 414. We find that the record supports the RD's conclusion that the DAGC's are significantly involved in labor-management relations. Accordingly, we find no compelling reasons to grant review, and we will deny the Union's application.

B. Activity's Application

Under section 7112(b)(3) of the Statute, a bargaining unit will not be found appropriate if it includes an employee engaged in personnel work in other than a purely clerical capacity. For a position to be excluded under that section, it must be determined that the character and extent of involvement of the incumbent is more than clerical in nature and that the duties of the position in question are not performed in a routine manner. Further, the incumbent must exercise independent judgment and discretion in carrying out the duties. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Cincinnati District, Cincinnati, Ohio, 36 FLRA 138, 144 (1990).

The Activity argues that the RD's decision is clearly erroneous because it does not address certain duties of the administrative support technician and that this error prejudicially affects the Activity's rights. Although the record shows, as the Activity asserts, that the technician attends meetings where personnel matters are discussed and that she acts for the administrative officer in the latter's absence, there is no evidence that in performing these duties the technician engages in personnel work of more than a clerical nature or exercises independent judgment and discretion. Accordingly, we reject the Activity's argument that the RD committed prejudicial error in not addressing two of the technician's duties.

The Activity also argues that the RD failed to reach "a reasoned decision" regarding certain of the technician's other duties. Activity's Application at 9. We find that the Activity's arguments constitute mere disagreement with the RD's findings and his conclusion concerning the unit status of the technician. The record as a whole supports the RD's determination that the technician does not exercise independent judgment and discretion in performing any of her duties and that she is not engaged in personnel work in other than a purely clerical capacity.

Finally, we note the Activity's assertion that the technician has "managerial responsibilities." Id. Assuming that the Activity is arguing that the technician is a management official, we reject that argument. There was no a