49:1598(146)CU - - FDIC, San Francisco, CA and NTEU - - 1994 FLRAdec RP - - v49 p1598

[ v49 p1598 ]
The decision of the Authority follows:

49 FLRA No. 146













July 15, 1994


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. As relevant here, the Regional Director (RD) found that the incumbent of an Administrative Assistant position was engaged in personnel work in a purely clerical capacity and should be included in an existing bargaining unit represented by the Union.(1)

The Union did not file an opposition to the Activity's application for review. For the following reasons, we will deny the Activity's application for review.

II. Background

The Union is the exclusive representative of separate bargaining units of professional and nonprofessional employees, including employees of the Activity. The Union filed a petition with the RD under section 7111(b) of the Statute seeking, among other things, to clarify the unit of nonprofessional employees to include the position of Administrative Assistant (Typing), GG 303-6, located in the Administrative Unit of the Activity's Legal Division and encumbered by Steve Leider. The Activity asserted that the position should not be included in the unit because the incumbent performs personnel work in other than a purely clerical capacity.(2)

The Activity's Legal Division is responsible for legal work conducted on behalf of the Division of Asset Services. Attorneys in the Legal Division participate directly in litigation and monitor legal work performed by private attorneys. The Administrative Unit supports the Legal Division by such activities as maintaining inventory and supplies, and processing employees' time and attendance, travel, and payroll reports.

III. Regional Director's Decision

According to the RD, the "great majority" of the duties of Steve Leider, the incumbent of the disputed Administrative Assistant position, involve "time and attendance record keeping." RD's Decision at 2. In particular, the RD found that Leider enters data from employees' time sheets in the Activity's payroll system, corrects errors from previous entries, and prepares reports based on the data. In addition, Leider computes amounts of leave taken by employees and amounts of official time used by Union officials. Leider also has compiled leave data sought by the Union under section 7114 of the Statute although, according to the RD, Leider had no knowledge of the reasons he was asked to compile the data.

The RD found that, to a "lesser degree," Leider reviews employee travel vouchers. Id. at 3. In this regard, Leider has prepared documents used by employees to prepare vouchers. Further, the Activity has directed Leider to attend training courses for new employees to answer questions regarding voucher preparation.

Further, according to the RD, the Activity has "[s]poradically[]" involved Leider in matters unrelated to time and attendance or travel vouchers. Id. In particular, on one occasion, after an administrative assistant resigned abruptly, Leider was required to travel to an Activity office in Alaska to organize files. In addition, Leider once performed duties in connection with filling out employee awards forms. In this regard, the RD found that Leider's involvement was "little more than entering data such as social security numbers in the forms." Id. Also on one occasion, Leider was asked by the Activity to be present when an employee was given a decision in a disciplinary matter. However, according to the RD, Leider "had no involvement in the disciplinary action otherwise and was unaware of the nature of the document when it was delivered to the employee." Id. Finally, although Leider attended a training course regarding the parties' collective bargaining agreement, the RD found that "he has not had any occasion to use this training[.]" Id.

Based on the foregoing, the RD concluded that Leider was not engaged in personnel work in other than a purely clerical capacity so as to warrant his exclusion from the existing unit of nonprofessional employees under section 7112(b)(3) of the Statute. The RD noted, in this connection, that a contrary conclusion necessitated a finding that an incumbent exercises independent judgment and discretion in carrying out his or her duties. According to the RD, Leider did not exercise the requisite independent judgment or discretion in that his duties were routine in nature, and required him merely to act in accordance with Activity guidelines. As such, the RD concluded that Leider should be included in the existing bargaining unit of nonprofessional employees.

IV. Application for Review

The Activity seeks review of the RD's decision under section 2422.17(c) of the Authority's Rules and Regulations on the ground that the decision constitutes a substantial departure from Authority precedent.

The Activity maintains first that the RD failed to address the Activity's argument that, even if Leider's duties are routine, he should be excluded from the existing unit because his inclusion in the unit would create a conflict of interest between his job duties and his unit membership. The Activity claims that Leider's duties relating to review of employee awards, the preparation of reports regarding official time usage, and serving as a witness when the Activity provided an employee with a decision in a disciplinary matter "are wholly incompatible with bargaining unit status and . . . would give rise to an untenable conflict of interest[.]" Application at 4.

The Activity also claims that Leider's duties are not routine. In the Activity's view, an employee is not acting in a purely clerical capacity when the employee "makes unaccompanied trips to the [Activity's] Anchorage, Alaska office and, with no on-site supervision, renders final decisions concerning the retention of personnel files and other confidential documents." Id. at 6. Fu