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



[ v49 p1598 ]
49:1598(146)CU
The decision of the Authority follows:


49 FLRA No. 146

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL DEPOSIT INSURANCE CORPORATION

SAN FRANCISCO, CALIFORNIA

(Activity)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

SF-CU-40006

_____

ORDER DENYING APPLICATION FOR REVIEW

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. Further, the Activity argues that Leider acts as the Activity's "resource person on payroll, time and attendance matters and responds to a myriad of inquiries in these areas." Id. at 5. Based on the Authority's decision in Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Salisbury, North Carolina, 11 FLRA 176 (1983), the Activity claims that these responsibilities are sufficient to exclude Leider from the bargaining unit. Moreover, based on the Authority's decision in Defense Mapping Agency, Hydrographic/Topographic Center, Providence Field Office, 13 FLRA 407 (1983), the Activity claims that Leider's actions in training employees regarding travel vouchers support a conclusion that his duties are not routine.

V. 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 the Activity's application for review.

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 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. U.S. Department of Health and Human Services, Office of the General Counsel, Baltimore, Maryland, 45 FLRA 894, 897 (1992).

We find that the RD correctly found, based on Authority precedent, that the Administrative Assistant position is properly included in the bargaining unit. In particular, we find that the record supports the RD's findings that the incumbent of that position performs his duties in a routine manner and is not required to exercise independent judgment or discretion to any significant degree in performing his duties.

In reaching that conclusion, we reject the Activity's contention that the RD failed to address whether Leider's inclusion in the bargaining unit would create a conflict of interest between his job duties and his unit membership. A conflict of interest between job duties and union affiliation may be created when an employee's duties would require the employee to act in a manner adverse to bargaining unit interests, such as recommending appropriate organizational structure and staffing levels, and is one of the factors which the Authority may look to in determining whether a position is involved in personnel work in other than a purely clerical capacity. For example, U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 36 FLRA 598, 602 (1990) (101st Airborne Division).

Here, the RD found, and the Activity asserts, that while the majority of Leider's duties involve time and attendance record keeping, Leider prepares reports, tracks the use of official time by Union stewards, assists the Activity's labor relations staff in responding to information requests, and researches unit employees' leave usage at the request of supervisory officials. However, there is no evidence in the record that, in performing those duties, Leider is required to exercise independent judgment or discretion which might result in actions adverse to bargaining unit members, or which otherwise might have a direct impact on the work environment of the unit. Consequently, we have no basis on which to conclude that if he were included in the unit, a conflict of interest would be created. Compare 101st Airborne Division, 36 FLRA at 603-04 (management analysts whose duties had a direct impact on the overall work environment of the bargaining unit, including the creation and elimination of unit jobs, were properly excluded from the bargaining unit).

We also reject the Activity's claim that the RD's decision that the duties of the Administrative Assistant position were routine in nature departs from Authority precedent. We find that the RD correctly found, pursuant to applicable Authority precedent, that even though the incumbent serves as a resource person for time and attendance matters and other administrative subjects, and assists the labor relations staff, Leider performs his duties in a routine manner in accordance with established Activity guidelines and is not required to exercise independent judgment or discretion in carrying out those duties. In our view, the Activity's contentions constitute mere disagreement with the RD's findings and his conclusion concerning the unit status of the incumbent. See Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Cincinnati District, Cincinnati, Ohio, 36 FLRA 138, 145 (1990).

For the foregoing reasons, we find that the Activity's application for review expresses nothing more than disagreement with the RD's findings and conclusions, which are based on record evidence and Authority precedent and have not been shown to be clearly erroneous or to have prejudicially affected the rights of any party. The application provides no basis for granting review of the RD's decision. Accordingly, we will deny the application for review.

VI. Order

The Activity's application for review of the Regional Director's Decision and Order is denied.




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

1. The Activity does not dispute either the RD's findings regarding an additional employee or the RD's conclusion that the incumbent is not a confidential employee, within the meaning of section 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute). Accordingly, those matters will not be addressed further.