National Aeronautics and Space Administration, Glenn Research Center, Cleveland, Ohio (Agency) and International Federation of Professional and Technical Engineers, Local 28 (Union)

[ v57 p571 ]

57 FLRA No. 103

NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION, GLENN RESEARCH CENTER
CLEVELAND, OHIO
(Agency)

and

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 28
(Union)

CH-RP-00034

_____

ORDER GRANTING APPLICATION FOR REVIEW

October 19, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on an application for review filed by the National Aeronautics and Space Administration, Glenn Research Center, Cleveland, Ohio (Agency) under § 2422.31 of the Authority's Regulations. The International Federation of Professional and Technical Engineers, Local 28, AFL-CIO (Union) filed an opposition to the application.

      The Agency seeks review of the Regional Director's (RD's) decision clarifying a bargaining unit to include, as relevant here, two positions. [n1] 

      For the reasons explained below, we find that the RD committed a clear and prejudicial error on a substantial factual matter. Accordingly, we grant the application and direct the RD to clarify the unit to exclude the two positions.

II.     Background and Regional Director's Decision

      As relevant to the application for review, the RD set forth the following findings of fact:

      The Agency is a large laboratory engaged in aerospace research and development. The Agency is headed by a Director. Under the Director's Office are several primary subdivisions called Directorates. Each Directorate has an assigned area of scientific specialty and responsibility. Each Directorate is headed by a Director who reports to the Director of the Agency.

      The Agency has a number of program and administrative organizations called Offices. Each Office is headed by a Chief who reports directly to the Director of the Agency.

      The two positions at issue are located in the Aeronautics Directorate. They are the position of Secretary (Office Automation) PD #20236, occupied by Annie Holton, and the position of Secretary (Office Automation) PD #21394, occupied by Lynne Sammon. Holton is the secretary and personal assistant to Dr. Carol Russo, Director of the Aeronautics Directorate. Dr. Russo reports directly to the Center Director. Sammon is the secretary and personal assistant to Dr. Arun Sehra, Deputy Director of the Aeronautics Directorate. Dr. Sehra reports directly to Dr. Russo. Holton and Sammon perform their duties interchangeably.

      Dr. Russo provides executive leadership for the Agency's aeropropulsion program in generating innovative research and technology in advanced aeronautical propulsion systems. Dr. Russo is a member of the Director's Leadership Team (DLT) and has participated in labor-management discussions. The DLT is the principle decision-making and policy-making management team at the Agency. Of the various policy-making bodies at the Agency, labor-management relations matters are discussed in the DLT. The DLT meets approximately once weekly. Dr. Russo has been involved in a number of EEO complaints and disciplinary actions.

      Dr. Sehra frequently attends DLT meetings as well. Dr. Sehra has primary responsibility for the Directorate in the area of recruitment, awards and promotions.

      Holton and Sammon provide clerical and administrative assistance to Dr. Russo and Dr. Sehra. Their duties include, but are not limited to, screening incoming correspondence, reviewing outgoing correspondence and establishing and maintaining files containing correspondence and documentation concerning pending personnel actions and performance evaluations. [ v57 p572 ]

      Holton and Sammon open Dr. Russo's and Dr. Sehra's mail and e-mail. They also maintain personnel files containing information such as Form 52s (Request for Personnel Action), Form 50s (Notification of Personnel Action), performance appraisals, and selection certificates.

      Holton and Sammon "support" weekly meetings of the Aeropropulsion Management Council (APMC) that include managers of the Aeronautics Directorate. RD's Decision at 8. Matters that are discussed at the DLT are usually discussed at the APMC. See id.

      The RD concluded that Holton and Sammon are not confidential employees within the meaning of § 7103(a)(13) of the Federal Service Labor-Management Relations Statute (Statute).

      In reaching this conclusion, the RD first found that Dr. Russo and Dr. Sehra are significantly involved in labor-management relations. In this regard, the RD noted that Dr. Russo and Dr. Sehra participate in the weekly DLT meetings where senior-level management formulates and shapes management's position on negotiations, grievances and other labor relations matters.

      However, the RD further found that the record did not demonstrate that Holton and Sammon act in a confidential capacity to Dr. Russo and Dr. Sehra in regard to their labor relations responsibilities. The RD found that there was "no showing that Holton and Sammon attended any meetings where sensitive and advance information on management's position on contract negotiations, the disposition of grievances and other labor relations matters were discussed or disclosed." RD's Decision at 8. The RD further stated that there was no evidence that Holton and Sammon were responsible for the typing and dissemination of such internal labor-management relations information. He also stated that, while Holton and Sammon have access to personnel files and personnel information, such duties, standing alone, are insufficient to establish that they act in a confidential capacity within the meaning of the Statute.

      Therefore, the RD concluded that the positions encumbered by Holton and Sammon should be included in the bargaining unit.

III.     Positions of the Parties

A.     Application for Review

      The Agency contends that review of the RD's decision is warranted under § 2422.31(c)(3)(iii) because the RD committed a clear and prejudicial error concerning a substantial factual matter relating to the responsibilities of Holton and Sammon. [n2] 

      The Agency argues that the RD made a clearly erroneous factual finding when he found that there was no showing that the two employees "attended any meetings where sensitive and advance information on management's position on contract negotiations, the disposition of grievances and other labor relations matters were discussed or disclosed." Application for Review at 1. The Agency asserts that the uncontradicted testimony established that Holton and Sammon attend weekly meetings of the APMC in which "sensitive labor management relations issues are discussed prior to their presentation to the Union for negotiations." Id. at 2. The Agency further asserts that, at meetings of the APMC, "the Director of Aeronautics solicits the views and input[] of subordinate managers on matters that the Agency may be taking to the Union for negotiations." Id. The Agency states that "matters are discussed at a stage before they are ready for general disclosure." Id. The Agency adds that Holton and Sammon support the meetings by taking notes. The Agency maintains that the RD either overlooked the uncontradicted testimony relating to the duties of Holton and Sammon or misapplied settled law to that testimony.

B.     Opposition

      The Union contends that the RD correctly found that Holton and Sammon do not act in a confidential capacity to Dr. Russo and Dr. Sehra in regard to their labor relations responsibilities. The Union asserts that there was no showing that Holton and Sammon attended any meetings where sensitive and advance information on labor relations matters were discussed or disclosed. [ v57 p573 ] Citing testimony by Sammon (Tr. at 508), the Union claims that Holton and Sammon attend only "regular staff meetings." Opposition at 1.

IV.     Analysis and Conclusions

      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. United States Dep't of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1376-77, 1383 (1990) (DoL Solicitor).

      Employees who, in the normal performance of their duties, may obtain advance information of management's position with regard to contract negotiations, the disposition of grievances, and other labor relations matters, are considered confidential within the meaning of § 7103(a)(13) of the Statute. Id. at 1383. The frequency and the amount of an employee's working time devoted to labor relations matters may be relevant factors in determining confidential status, but are not controlling factors for § 7103(a)(13) purposes. Id. at 1382.

      The Agency argues that the RD erred in finding that there was no showing that Holton and Sammon attended meetings where sensitive and advance information on management's position on contract negotiations, the disposition of grievances and other labor relations matters were discussed or disclosed. Based on our review of the record, and as explained below, we find that the RD committed a clear and prejudicial error on this substantial factual matter.

      First, the record establishes that Holton and Sammon attend meetings of the APMC. Dr. Russo and Dr. Sehra each specifically testified that their secretaries -- Holton and Sammon attend APMC meetings and perform a variety of tasks in connection with matters that are discussed at the meetings. Dr. Russo was asked whether "the secretaries go to the APMC meetings" and whether "they take notes there." Tr. at 494. Dr. Russo testified "[y]es" as to both questions. Id. Similarly, Dr. Sehra was asked whether "one or more of your secretaries attend" the APMC meetings, and answered that "I think both the secretaries attend this meeting." Id. at 544. In addition, Holton also specifically testified that she attends APMC meetings. In this regard, upon being asked whether she attends "the Aerospace-Propulsion Council meetings," Holton testified, "I attend the APMC. Yes, I do. The staff meetings. Yes." Id. at 531. Finally, nothing in Sammon's testimony indicates to the contrary, including testimony cited by the Union in support of its position that Sammon and Holton attend only regular staff meetings. [n3]  Accordingly, we find that the record establishes that Holton and Sammon attend APMC meetings.

      Next, we find that the record demonstrates that sensitive labor-management issues are discussed at APMC meetings. Dr. Russo testified that the Agency's "Maxiflex" policy, telecommuting policy and external hiring policy are among the labor relations matters that have been discussed at APMC meetings. Id. at 494-95. Dr. Sehra further testified that policy discussions at AMPC meetings have included subjects such as "hiring," "awards," "promotions" and "grievances." Id. at 545-46. In addition, as previously noted, matters discussed at the DLT are usually discussed at APMC meetings. With respect to labor-management issues, the record reveals that "the DLT is the major decision-making body relative to those issues and policies." Id. at 480. Further, the responsible management official brings before the DLT various options and proposals. Id. at 481. Testimony further reveals that, at the APMC meetings, attendees are "solicit[ed for] their views and input on matters that [may be taken] into negotiations" with the Union. Id. at 494.

      The record also demonstrates that Holton and Sammon obtain advance information regarding sensitive labor relations matters and that discussions of such matters at the APMC meetings occur "at a stage before [they are] ripe for general disclosure." Id. at 495. When asked what the secretaries did at the meeting, Dr. Sehra answered that "they take notes in the meeting" and also discuss "action items." Id. at 544-45. Dr. Russo also testified that Holton and Sammon "participate in the preparation of management responses to such matters as grievances, proposed disciplinary actions, negotiations, [and] personnel actions which might result in the filing of union grievances." Id. at 495. In addition, Holton [ v57 p574 ] and Sammon copy and distribute sensitive materials, maintain confidential files, open their supervisors' mail and e-mail, and distribute directorate mail. Id. at 496. When questioned on the effect of the premature disclosure of such information and discussions at the APMC meetings, Dr. Russo testified that such disclosure would "basically usurp the management responsibilities from making those decisions in an informed and organized, disciplined manner" and "would lead to inappropriate grievances based on premature disclosure of information which may change before a final decision is reached . . . ." Id. at 495, 497.

      We find nothing in the testimony of either Holton or Sammon that contradicts the testimony of Dr. Russo and Dr. Sehra that sensitive labor-management issues are discussed at APMC meetings and that premature disclosure of management's position on such matters would have detrimental effects. In this regard, we note that Sammon did not testify as to these matters. In addition, Holton's failure to recall the substantive nature of the discussions at APMC meetings, when questioned, does not refute the explicit record evidence on this point.

      Consistent with Authority case law, employees who, in the normal performance of their duties, may obtain advance information of management's position with regard to contract negotiations, the disposition of grievances, and other labor relations matters, are considered confidential within the meaning of § 7103(a)(13) of the Statute. DoL Solicitor, 37 FLRA at 1383. Based on the record evidence discussed above, we find that Holton and Sammon are confidential employees within the meaning of § 7103(a)(13) and that the RD erred in reaching a contrary result.

      Accordingly, we grant the application for review and direct the RD to clarify the bargaining unit to exclude the positions encumbered by Holton and Sammon.

V.     Order

      The application for review is granted. The Regional Director is directed to clarify the bargaining unit to exclude the position of Secretary (Office Automation) PD #20236 and the position of Secretary (Office Automation) PD #21394.



Footnote # 1 for 57 FLRA No. 103

   The RD also determined the bargaining unit status of nine other employees. Those determinations are not challenged in the application for review.


Footnote # 2 for 57 FLRA No. 103

   Section 2422.31(c) of the Authority's Regulations provides, in pertinent part:

(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:

      . . . .

(3) There is a genuine issue over whether the Regional Director has:
. . . .
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 3 for 57 FLRA No. 103

   As stated above, Holton used the term "staff meetings" to refer to the APMC meetings. When Sammon was asked about the types of meetings she attended, she mentioned "staff meetings" involving "divisions within Aeronautics." Tr. at 505. Attempts to clarify whether the meetings referred to were the APMC meetings led to a discussion of the correct title of the APMC. At no point in Sammon's t