50:0439(63)CU - - Justice and American Federation of State County and Municipal Employees, Local 3719 - - 1995 FLRAdec RP - - v50 p439



[ v50 p439 ]
50:0439(63)CU
The decision of the Authority follows:


50 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

(Agency)

and

AMERICAN FEDERATION OF STATE, COUNTY

AND MUNICIPAL EMPLOYEES

LOCAL 3719, AFL-CIO

(Union)

WA-CU-20211

WA-CU-20401

_____

ORDER GRANTING IN PART, REMANDING IN PART,

AND DENYING IN PART, APPLICATION FOR REVIEW

May 30, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This consolidated case is before the Authority on an application for review filed by the Union under section 2422.17(a) of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's application for review.

The petitions in this case raised issues as to whether certain employees should be included in, or excluded from, the bargaining unit represented by the Union. The Union seeks review of the Regional Director's (RD's) decision in Case No. WA-CU-20401 denying the Union's motion to dismiss the Agency's petition and excluding certain employees from the unit.(1) For the following reasons, we grant the Union's application for review in part and deny it in part.

II. Regional Director's Decision

In Case No. WA-CU-20401, the Agency sought to exclude certain employees from the bargaining unit. As relevant to the application for review, the RD: (1) excluded two employees on the Appellate Staff in the Agency's Civil Division and three employees in the Office of the Solicitor General (OSG) as confidential employees; (2) excluded Susan Henry, an individual in the Agency's Criminal Division, as a supervisor; (3) denied the Union's motion to dismiss the Agency's petition as to the employees claimed to be engaged in security work which directly affects national security; and (4) excluded 90 employees from the unit on the basis that they are engaged in national security work that directly affects national security within the meaning of section 7112(b)(6) of the Statute.

III. Positions of the Parties

A. Application for Review

The Union alleges that the RD's decision with respect to the employees found to be confidential employees and those found to be engaged in security work which directly affects national security raises substantial questions of law or policy because of the absence of, or departure from, Authority precedent, and is clearly erroneous on a substantial factual issue. With respect to those employees found to be engaged in security work which directly affects national security, the Union alleges that, by excluding these employees, the RD has departed from Authority precedent because, unlike the employees in the cases relied on by the RD, the employees he excluded have not been shown to perform security work that directly affects national security. The Union also alleges that the RD erred in concluding that Henry is a supervisor within the meaning of the Statute. Finally, the Union alleges that the RD's denial of the Union's motion to dismiss the Agency's petition was clearly erroneous and this error has prejudicially affected the rights of the Union and the employees.

B. Opposition

The Agency requests that the Authority strike the Union's arguments as to the confidential employees because the Union assertedly did not make any arguments as to these employees prior to filing the application for review. The Agency contends that the remaining Union arguments constitute nothing more than disagreement with the RD's conclusions and establish no grounds for review.

IV. Analysis and Conclusions

We conclude that the Union has not demonstrated that compelling reasons exist, within the meaning of section 2422.17 of the Authority's Rules and Regulations, for granting review of the Regional Director's decision as to: (1) the two confidential employees on the Appellate Staff; (2) Susan Henry; and (3) the Union's motion to dismiss the Agency's petition. Accordingly, we deny the application for review as to these portions of the RD's decision. For the following reasons, we grant the application for review as to the employees allegedly engaged in security work that directly affects national security and the three employees in the OSG.

A. Employees Engaged in Security Work

As relevant here, the RD excluded from the bargaining unit certain employees of the Agency's Criminal Division, located in the Office of Information/Management Information Staff, the Narcotics and Dangerous Drugs Section, the Office of Enforcement Operations, the Terrorism and Violent Crimes Section, and the Office of International Affairs, on the grounds that they are "engaged in . . . security work which directly affects national security," within the meaning of section 7112(b)(6) of the Statute.(2)

We find that the Union has demonstrated, as to these employees, that the RD's decision raises substantial questions of law or policy because of an absence of Authority precedent. The RD, in reaching his conclusions as to the employees in these offices, relied on Authority cases dealing with the issue of employees engaged in security work. United States Attorneys Office for the District of Columbia, 37 FLRA 1077, 1084 (1990) (U.S. Attorneys); U.S. Department of the Army, Army Ordnance Missile and Munitions Centers and School, Redstone Arsenal, Alabama, 35 FLRA 987, 988 (1990); Defense Mapping Agency, Hydrographic/Topographic Center, Providence Office, Brookside Avenue, West Warwick, Rhode Island, Department of Defense, 13 FLRA 128, 129 (1983); Defense Mapping Agency, Aerospace Center, Kansas City Office, Kansas City, Missouri, 13 FLRA 52 (1983); United States Department of the Navy, U.S. Naval Station, Panama, 7 FLRA 489, 495 (1981); and Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 644, 655-56 (1980) (Oak Ridge). With the exception of U.S. Attorneys, in which there was no dispute as to the issue of national security, each of these cases involved agencies whose security work affected the military strength of the United States. In contrast, the case now before the Authority presents as an issue of first impression the question whether the work engaged in by the employees in this civilian Agency constitutes security work which directly affects national security within the meaning of section 7112(b)(6) of the Statute. Accordingly, we grant review of the RD's decision as to this issue.

B. Confidential Employees (3)

The RD excluded from the bargaining unit three employees in the OSG. We grant review with respect to these employees for the purpose of remanding this issue to the RD for further processing.(4)

The RD's findings with respect to the confidential status of these employees were based solely on the stipulation entered into by the Union and the Agency. That stipulation reveals that there are 23 attorneys in the OSG and that the 3 secretarial employees "type, review, file, transmit, and generally have access to documents produced and/or reviewed by a Deputy [Solicitor General] and OSG staff attorneys[.]" Joint Exhibit No. 3 at 4. The stipulation also discloses that during the period January 1990 through April 1992, the Appellate Staff received, and ultimately referred to the OSG, 172 cases in which the Authority was a party, representing 3 percent of total case intake, and that 14 of the 172 cases involved Department of Justice (DOJ) unions. The stipulation is silent, however, as to which of the attorneys handled the labor relations cases in which DOJ was a party and, therefore, which of those attorneys can be said to formulate or effectuate management policies in the field of labor-management relations. Additionally, there is no evidence as to which attorneys the three secretaries work for and whether they worked for the attorneys while the latter were engaged in formulating or effectuating management policies in the field of labor-management relations. Further, although the stipulation states that the Deputy Solicitor General provides day-to-day supervision of the secretaries, there is no evidence as to the nature of that supervision and whether it includes supervision over the work product. According to the stipulation, the secretaries' work product is supervised by the staff attorneys for whom the secretaries work and, further, that supervision is also provided by the Executive Officer. Accordingly, we are unable to determine whether a confidential relationship exists between any of the secretaries and individuals who formulate or effectuate management policies in the field of labor-management relations.

In U.S. Department of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37 FLRA 239, 248 (1990), the Authority held that in determining the inclusion or exclusion of employees deemed confidential, "a complete examination of all the relevant factors must be made to determine the nature of the confidential working relationship between an employee and the employee's supervisor" (emphasis added). Based on the record before us, we are unable to determine whether review is warranted under section 2422.17(c)(4) of the Authority's Regulations because the RD's decision on a substantial factual issue is clearly erroneous and such error prejudiced the Union. Accordingly, a remand is appropriate to enable the RD to adduce the necessary evidence and make the requisite findings. We recognize that we reach a different result here than with respect to the employees in the Appellate Staff. However, the stipulation with respect to those employees, and the RD's findings based thereon, sufficiently describe the duties performed by those employees and the individuals for whom they work so as to have established a confidential working relationship that would warrant their exclusion from the unit.

V. Order

We deny the Union's application for review of the Regional Director's decision: (1) that two employees on the Agency's Appellate Staff are confidential employees; (2) that Henry is a supervisor within the meaning of the Statute; and (3) denying the Union's motion to dismiss the Agency's petition.

We grant the Union's application for review on the issue of the confidential status of the three employees in the Solicitor General's Office. We remand this issue to the Regional Director to reopen the record and to obtain the necessary evidence, by stipulation of the parties or by further testimony at a reopened hearing, and make the necessary findings and determinations, subject to any application for review.

We grant the Union's application for review of the Regional Director's decision as to the following issues:

(1) Whether the work performed in the Agency's Criminal Division--specifically in the Office of Information/Management Information Staff, the Narcotics and Dangerous Drugs Section, the Office of Enforcement Operations, the Terrorism and Violent Crimes Section, and the Office of International Affairs--involves "national security," as that phrase is defined in Oak Ridge, 4 FLRA at 655-56; and

(2) Whether, based on evidence in the record, each of the disputed employees is involved in "security work," as defined in Oak Ridge, 4 FLRA at 655), and how this work directly affects the activities described above in (1).

In accordance with section 2422.17(g) of the Authority's Rules and Regulations, the parties may submit briefs, within 10 days of the date of this Order, on the issues on which we have granted the application for review. Briefs should be directed to:

Alicia N. Columna
Director, Case Control Office
Federal Labor Relations Authority
607 14th Street, NW., Room 415
Washington, D.C. 20424-0001




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

1. As no application for review was filed as to any of the RD's findings concerning the employees the Union sought to include in the unit in Case No. WA-CU-20211, we do not address those findings.

2. The Union in its application did not seek review of the RD's findings as to the Internal Security Section of the Agency's Criminal Division.

3. We reject the Agency's request to strike the Union's arguments as to this issue. We find, contrary to the Agency's assertion, that the Union does not raise any issue or allege any facts not timely presented to the RD.

4. Member Armendariz respectfully dissents from his colleagues' conclusion as to this aspect of the case. In his view, the Union has not established that compelling reasons exist within the meaning of section 2422.17 of the Authority's Rules and Regulations for granting review of the RD's decision in this regard. Member Armendariz is satisfied that the RD's conclus