American Federation of Government Employees, Local 3529 (Petitioner/Union) and United States Department of Defense, Defense Contract Audit Agency, Central Region, Irving, Texas (Petitioner/Activity)
[ v57 p633 ]
57 FLRA No. 122
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3529
UNITED STATES DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
CENTRAL REGION, IRVING, TEXAS
APPLICATION FOR REVIEW
December 10, 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 of the Regional Director's (RD's) decision clarifying a bargaining unit to include five positions encumbered by 21 employees. The Activity filed the application under § 2422.31(c) of the Authority's Regulations. The Union filed an opposition to the application.
For the reasons set forth below, we find that the Activity has not demonstrated that review of the RD's Decision is warranted. Accordingly, we deny the Activity's application for review.
II. Background and RD's Decision
In 1990, the Union was certified as the exclusive representative for a unit of non-professional and professional employees of the Activity. The Defense Contract Audit Agency (Agency) provides accounting and financial advisory services regarding contracts and subcontracts to all Department of Defense (DOD) components responsible for procurement and contract administration, as well as to approximately 30 other government agencies.
The Agency has a headquarters and five regions. This case concerns employees in the Central Region, which consists of the Regional Office and thirteen Field Audit Offices (FAOs).
In 1996, the parties reached agreement on a Memorandum of Agreement (MOA) that excluded certain positions from the unit, including the Customer Service Representative position at issue in this case. As a result of the MOA, the Union withdrew an earlier representation petition.
In 2000, the parties filed the petitions in this case, seeking to clarify the status of the following five positions:
(1) Customer Service Representative (CSR), GS-0303-7;
(2) Quality Assurance Auditor (QAA), GS-0511-13;
(3) Technical Program Specialist (RST), GS-0511-13;
(4) Computer Systems Analyst (CSA), GS-334-12; and
(5) Regional Special Investigation/Investigative Support Division (SPO/ISD), GS-0511-12.
As a preliminary matter, the RD found that the parties' MOA was "not binding on [him] as RD so as to preclude [him] from now determining the bargaining unit eligibility of any employee/position at issue." RD's Decision at 5. The RD stated that "only the Authority may determine bargaining unit eligibility issues, and . . . the MOA upon which [the Activity] relies is not an agreement which has ever been formally approved by the Region as part of a representation proceeding." Id.
The RD also declined to address an argument made by the Activity "that inclusion of the SPO/ISD position in the bargaining unit would not meet community of interest standards." Id. at 22, n.9. The RD found that this issue had not been timely raised since it was raised for the first time in the Activity's post-hearing brief.
On the merits, the RD concluded that the five positions should be included in the unit. As relevant to the application for review, the RD made the following determinations regarding the QAA and the CSR positions: [n1] [ v57 p634 ]
The Activity claimed that the QAAs fall within the exclusion for employees involved in certain audit and investigative functions under § 7112(b)(7) of the Federal Service Labor-Management Relations Statute (Statute). [n2] The RD rejected this claim.
As an initial matter, the RD concluded that the record demonstrated that certain duties and audit functions of the QAAs, in particular, their President's Council on Integrity and Efficiency (PCIE) reviews of specific assignments by FAO auditors, fell within the scope of § 7112(b)(7). The RD explained that these PCIE reviews fell within the audit functions under § 7112(b)(7) because the QAAs performed these reviews in lieu of the Inspector General (IG) to ensure that FAO auditors are performing their "work correctly in accordance with . . . agency policies." Id. at 15. In this regard, the RD also noted that "negative" PCIE reviews "may result in corrective action by management." Id.
However, the RD concluded that QAAs were not "primarily" engaged in performing audit functions that fell within the scope of § 7112(b)(7) since the "preponderance of the QAA's duties [involve] reviewing the audit work of other auditors for technical competence and adherence to established auditing principles and standards." Id. at 16. In this regard, the RD found that "the QAAs are primarily concerned with improving procedures [to ensure that] the [FAO] auditor go[es] through the right steps [in] accord[ance with the Contract Audit] manual, and [a]s such, this type of audit does not involve internal investigation or audit functions undertaken to ensure [that] the duties were performed honestly and with integrity." Id., citing Tr. at 161. Lastly, the RD noted that "[d]espite the testimony . . . that the QAAs would be charged with investigating a hotline complaint against a bargaining unit employee if one were made, . . . no such complaints have been made and, therefore, none have ever been investigated by them." Id. at 17, n.7. Accordingly, the RD found that the QAAs should not be excluded on the basis of § 7112(b)(7).
The Activity claimed that the CSRs fall within the § 7112(b)(3) exclusion for employees engaged in personnel work in other than a purely clerical capacity. [n3] The RD rejected this claim.
The RD found that the record evidence fails to demonstrate that the duties performed by the CSRs require the consistent exercise of independent judgment or discretion rising above the routine and which, when utilized might result in actions adverse to bargaining unit members, or otherwise might have a direct impact on the work environment of the unit. In this connection, the RD found that CSRs were "well trained assistants working in an administrative, clerical capacity," and that "evidence indicates that they perform their duties in a routine manner, and in accordance with established policies and procedures." Id. at 9.
Also, as relevant here, the RD found that although the CSR representative and her supervisor testified that the CSR acts as a backup to the Personnel Management Specialist (PMS), "neither provided examples of such back-up duties . . . other than the input of data into the personnel system." Id. at 8. The RD stated that "no specifics were provided by either witness regarding what these PMS duties might entail or how that circumstance would be dispositive in this matter." Id. In the same vein, the RD noted that the CSR witness testified that she performed some PMS duties, "such as providing advice to supervisors and managers on daily personnel actions, but did not provide specifics on what subjects this advice might involve." Id. at 8-9.
III. Positions of the Parties
A. The Activity's Application for Review
The Activity asserts several grounds on which its application for review should be granted. [n4]
First, the Activity argues that the decision raises a substantial question of law because of the absence of Authority precedent. The Activity asserts that the RD erred in relying on Federal Trade Commission (FTC I), 15 FLRA 247 (1984) and Federal Trade Commission (FTC II), 35 FLRA 576 (1990) when he decided not to give binding effect to the MOA. According to the Activity, those cases involved parties' pre-election agreements regarding the unit status of individuals and do not resolve the issue of what effect is given to an [ v57 p635 ] agreement by the parties to include or exclude positions after unit certification. The Agency notes that the "record is clear [that the parties] have honored the 1996 MOU regarding the excluded positions." Id. at 3.
Second, the Activity contends that the RD committed a prejudicial procedural error in finding that the Activity's claim -- that employees in the SPO/ISD positions should be excluded since they did not share a community of interest with members of the existing unit -- was untimely raised. The Activity notes that it is undisputed that this issue was raised in its post-hearing brief and that, under § 2422.30(e) of the Authority's Regulations, post-hearing briefs become part of the record. [n5] The Activity maintains that the RD's failure to address its community of interest claim "conflicts prejudicially" with the decision of another RD, in which that RD addressed an issue that was raised for the first time in the agency's post-hearing brief. Application at 6, citing Joint Exhibit 8.
Third, the Activity maintains that the RD erred in failing to apply the standard three-prong appropriate unit criteria under § 7112(a). In this respect, the Activity maintains that the RD failed to address its claims made at the hearing and in its post-hearing brief that employees in the positions at issue do not share a community of interest with members of the existing unit. [n6]
Fourth, the Activity maintains that the RD's finding that the QAA positions should not be excluded from the unit on the basis of § 7112(b)(7) constitutes a clear and prejudicial error concerning substantial factual matters under § 2422.31(c)(3)(iii). [n7] Relying on United States Dep't. of the Navy, Naval Audit Service, Southeast Region, 46 FLRA 512 (1992) (Naval Audit), the Activity argues that the RD misapplied the "primarily engaged" standard under § 7112(b)(7). In this regard, the Agency argues that the RD "applied an inappropriately narrow standard" with respect to the requirements under § 7112(b)(7) that the QAAs must be "primarily engaged" in certain audit functions and that those functions must be performed to ensure that the duties of the employees who are audited are discharged "honestly and with integrity." Id. at 11.
Fifth, the Activity argues that the RD committed a clear and prejudicial error concerning substantial factual matters and failed to appropriately apply § 7112(b)(3) of the Statute to the CSR position. The Activity contends that the CSR position is more than clerical in nature, performed in a non-routine manner, and of such a nature as to create a conflict of interest between union representation and the CSR job duties.
B. Union's Opposition
The Union contends that the Activity has not shown any absence of precedent, conflicting law or error by the RD. Regarding the Activity's MOA claim, the Union maintains that the MOA was reached without the approval of the RD and that the parties were advised at the time that the MOA "would not have the same force of law as an Authority decision [since] . . . only the FLRA could make such binding unit determinations." Opposition at 1.
Regarding the Activity's claim that the RD erred by not addressing the "community of interest" argument that was presented in the Activity's post-hearing brief, the Union argues that the "record is not sufficiently clear" on this issue, and that "[t]o allow the agency to [raise this] issue without proper opportunity for Union rebuttal through testimony and/or other evidence would be patently unfair." Id. at 2. Lastly, the Union argues that the RD correctly found that the QAAs and CSR should be included in the unit and that the RD committed no procedural errors. [ v57 p636 ]
IV. Analysis and Conclusions
A. The RD Was Not Bound by the Parties' MOA
The Activity asserts that there is an absence of Authority precedent on whether an agreement entered into by the parties following unit certification, like the MOA entered into by the parties in 1996, "is appropriately analyzed and reviewed using the FTC I or FTC II standard, and if not, what standard should be applied to a post certification MOU when a party files a [clarification of unit] petition seeking to include the positions covered by the MOU." See Application at 5.
We find that the RD's decision does not raise a genuine issue for which there is an absence of precedent. Although Authority precedent does not address the specific type of agreement at issue in this case, there is sufficient relevant Authority precedent that offers guidance with respect to how the parties' MOA should be treated.
Section 7105(a)(2)(A) of the Statute mandates that the Authority shall determine the appropriateness of units for labor organization representation under § 7112 of the Statute. In turn, § 7112(a) provides that the Authority shall determine the appropriateness of any unit. In accordance with this statutory mandate, the Authority has held that under §§ 7105(a)(2)(A) and 7112(a), it has exclusive jurisdiction to make appropriate unit determinations, including the resolution of questions concerning the bargaining unit status of employees. See United States Dep't of Labor, Mine Safety and Health Admin., Southeastern District, 40 FLRA 937, 941 ((1991), citing United States Small Bus. Admin., 32 FLRA 847, 852-54 (1988).
The Authority has addressed the effect of agreements by the parties on the Authority's responsibilities to resolve certain representation issues under the Statute, including bargaining unit determinations. See NAGE/SEIU, Local 5000, AFL-CIO-CLC and SEIU, AFL-CIO-CLC, 52 FLRA 1068, 1074-75 (1997) (NAGE/SEIU) (Member Wasserman dissenting) (in considering whether to grant a joint petition for amendment of certification filed by two unions, the Authority rejected as dispositive an agreement by the two unions to change the employees' union affiliation). As relevant here, in NAGE/SEIU, the Authority stated in general that "although parties' agreements may be considered in deciding representation case issues, the Authority is not bound by such agreements on legal or policy issues and does not defer to such agreements in deciding representation issues." Id.
Based on the discussion above, we find that there is relevant precedent regarding the effect to be given the parties' 1996 MOA and that the RD acted consistent with this precedent. Specifically, the RD concluded that "since only the Authority may determine bargaining unit eligibility issues, and as the MOA upon which [the Agency] relies is not an agreement which has ever been formally approved by the Region as part of a representation proceeding, . . . the MOA is not binding on me as Regional Director so as to preclude me from now determining the bargaining unit eligibility of any employee/position at issue in this proceeding." RD's Decision at 5.
Moreover, contrary to the Activity's assertions that the RD found that FTC I and FTC II were "controlling in this case," nothing in the RD's decision indicates that he relied on FTC I and FTC II. Rather, as noted above, the RD relied on precedent that the Authority had exclusive jurisdiction to make unit determinations and his finding that the parties' MOA was not formally approved by the RD in any representation proceeding. We find that the RD properly concluded that the parties' MOA was not binding on him. [n8]
Accordingly, based on the foregoing, we deny this portion of the application.
B. The RD's Failure to Address the Community of Interest Criterion under § 7112(a) Does Not Provide a Basis for Granting Review under § 2422.31(c)(3)(ii) of the Authority's Regulations
The Activity contends that the RD erred in finding that the Activity's claim -- that employees in the SPO/ISD positions should be excluded from the unit since such employees did not share a community of interest with members of the existing unit -- was raised in an untimely fashion in its post-hearing brief.
We find that even assuming the RD committed a procedural error in finding that an issue raised in the Activity's post-hearing brief was not timely raised, the Activity was not prejudiced by this error. In this respect, the Agency was not prejudiced since, in the circumstances of this case, consideration of the community of interest criterion under § 7112(a) is not necessary to determine whether the positions at issue are excluded under § 7112(b). [ v57 p637 ]
The Authority applies the appropriate unit criteria under § 7112(a) initially when considering petitions to establish proposed units. [n9] See Miss. Army Nat'l Guard, Jackson, Miss., 57 FLRA 337, 341-42 (2001) citing AFGE, Local 2004, 47 FLRA 969, 972-73 (1993). In this case, that determination was made in 1990 when the RD certified as appropriate the unit of "[a]ll non-professional and professional employees employed by the [Agency in] Irving, Texas," except for those excluded under § 7112(b). RD's Decision at 1-2. The Activity has not asserted that there has been a change affecting the continued appropriateness of the unit, such as changes in the agency's organization or operations, or provided any other basis to revisit the 1990 determination. See generally, United States Dep't of the Navy, Naval Air Warfare Command, Aircraft Div., Patuxent River, Md., 56 FLRA 1005, 1006-08 (2000) (relocation of employees to same location as existing bargaining unit was a change in agency operations warranting application of accretion principles and appropriate unit criteria under § 7112(a)); Defense Mapping Agency, Aerospace Ctr., St. Louis, Mo., 46 FLRA 502, 509-11 (1992) (appropriate unit criteria under § 7112(a) was considered in determining whether certain former unit employees reassigned as a result of an agency-wide reorganization should be part of existing bargaining unit).
Moreover, nothing in § 7112(b) suggests or requires that the Authority consider or apply the appropriate unit criteria under § 7112(a) in determining solely whether employees satisfy the statutory exclusions under § 7112(b). Rather, in determining whether employees/positions at issue in a clarification of unit petition satisfy the statutory exclusions under § 7112(b), the Authority has applied other criteria based on the specific categories of employees excluded by § 7112(b). See, e.g., Dep't of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172, 177 (1981) (determination regarding management official under § 7112(b)(1) made based on whether the individual creates, decides upon, or obtains a result as to the adoption of general principles, plans or courses of action for an agency); United States Dep't of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1376-77, 1383 (1990) (determination regarding confidential employee under § 7112(b)(2) made based on evidence of a confidential working relationship between employee and supervisor, and of the supervisor's significant involvement in labor-management relations); Dep't of the Treasury, Internal Revenue Serv., Washington, D.C. and Internal Revenue Serv., Cincinnati District, Cincinnati, Ohio, 36 FLRA 138, 144 (1990) (IRS) (determination under § 7112(b)(3) made based on the character and extent of the employee's involvement in personnel work that is more than clerical in nature and the performance of duties that are done in a non-routine manner or that creates a conflict of interest between the employee's union affiliation and job duties). None of the standards applied under § 7112(b) involve appropriate unit criteria, and Authority case law is replete with decisions addressing exclusions under § 7112(b) without any consideration of the community of interest factor or the other two appropriate unit criteria under § 7112(a).
Based on the discussion above, we find that consideration of the community of interest criterion under § 7112(a) is not necessary to determine whether the SPO/ISD positions fall within the statutory exclusions under § 7112(b), in the context of this petition. [n10] Hence, the RD's decision not to address the community of interest criterion does not provide a basis for granting review under § 2422.31(c)(3)(ii) of the Authority's Regulations.
C. The QAAs Should Not Be Excluded from the Bargaining Unit under § 7112(b)(7)
The Activity alleges that the RD committed clear and prejudicial errors concerning substantial factual matters in finding that the QAAs should not be excluded from the unit. As noted above, we construe the Agency's argument as a claim that the RD failed to apply established law. See, supra, n.7.
The Activity maintains that the RD misapplied the "primarily engaged" standard in finding that the QAAs are not "primarily engaged" in audit functions under § 7112(b)(7) and relies on Naval Audit as support for its claim. We find that the Activity's reliance on Naval Audit is misplaced. In Naval Audit, the Authority found that the auditors were primarily engaged in audit functions that fell within the § 7112(b)(7) exclusion because [ v57 p638 ] every audit in that case was undertaken to ensure that duties were discharged honestly and with integrity. In this regard, all of the audits involved "monitor[ing] compliance with [certain] internal controls so as to protect agency assets and to detect possible fraud, waste or abuse." Naval Audit, 46 FLRA at 518.
In the instant case, there is no dispute that some of the QAAs' functions, in particular, the PCIE reviews that are performed in lieu of the IG to ensure that duties of FAO auditors are discharged with honesty and integrity, fall under the § 7112(b)(7) exclusion. However, unlike in Naval Audit, the RD here found that these PCIE reviews do not constitute all the audit work or functions performed by the QAAs. Hence, the Activity's reliance on Naval Audit does not demonstrate that the RD failed to apply established law in finding that QAAs were not covered by § 7112(b)(7) since the "preponderance of [their audit] duties [involve] review[ing] the audit work of other auditors for technical competence and adherence to established auditing principles and standards." RD's Decision at 16.
Moreover, to the extent that the Activity is arguing that the RD's application and interpretation of the requirement that audit functions must be undertaken to ensure that duties are discharged honestly and with integrity is too narrow and conflicts with the standard applied in Naval Audit, we reject this contention as well. Generally, the Authority has found that § 7112(b)(7) applies where individuals "perform internal investigations of employee wrongdoing and fraud," with the potential for uncovering "employee fraud, misuse of funds, or malfeasance," see SBA, 34 FLRA at 402, as well as where individuals investigate "fraud, waste, and abuse." Naval Audit, 46 FLRA at 519. However, the Authority noted in United States Dep't of Justice, Federal Bureau of Prisons, United States Penitentiary, Marion, Ill., 55 FLRA 1243, 1248 (2000), that this standard is not limited to employees who perform investigations or audits relating to "fraud, waste, or abuse" as discussed above, but includes any audit or investigation that relates to the "honesty and integrity" of particular types of employees. Id.
Here, the RD found that the preponderance of the QAAs' audit functions, namely, the auditing of audit work by FAO auditors for technical competence and adherence to established auditing standards, did not implicate the "honesty and integrity" requirement under § 7112(b)(7). In this respect, the RD found that this type of auditing was "primarily concerned with improving procedures," and focused on the QAA's use of a checklist to review whether the FAO auditors had taken certain steps in accordance with generally accepted government standards.
These findings suggest that these types of audits constitute a generalized procedural check that FAO auditors have taken certain steps in the auditing process, as opposed to a substantive review of specific actions and statements actually made by FAO auditors. As such, we find that the RD's finding that these audits do not seek to ensure that duties are discharged honestly and with integrity is reasonable and consistent with Authority precedent interpreting this standard. Moreover, the Agency has not demonstrated that these procedural quality control checks to ensure compliance with generally accepted government auditing standards constitute audits that are undertaken to ensure that the duties of FAO auditors are discharged with honesty and integrity. Accordingly, based on the foregoing, we deny the Activity's claim that the RD failed to apply established law under § 7112(b)(7).
D. The CSR Is Not Engaged in Personnel Work in More Than a Purely Clerical Capacity and Should Not Be Excluded from the Bargaining Unit under § 7112(b)(3)
Under § 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. IRS, 36 FLRA at 144.
The Activity argues that the RD erred in finding that the CSR's duties were performed in a routine manner and that the CSR did not exercise independent judgment in using Agency guidelines. Rather, the Activity maintains that the CSR "exercises considerable discretion in advising [and making recommendations to] managers and supervisors [regarding] complex personnel matters such as leave abuse matters and disciplinary actions." Application at 15. Although the record shows, as the Activity asserts, that the CSR advises managers regarding personnel matters, there is no evidence that in performing these duties, the CSR engages in personnel work of more than a clerical nature or exercises independent judgment and discretion. In this regard, the CSR confirmed that with respect to personnel actions, she reviews such actions to ensure that "all of the appropriate steps and procedures" have been followed in order to [ v57 p639 ] process the action. See Tr. at 97-98. See United States Dep't of the Navy, United States Naval Station, Panama, 7 FLRA 489 (1981) (individuals whose duties only require the processing of completed personnel actions or the screening of personnel actions for technical sufficiency, are not subject to the exclusion in § 7112(b)(3) because their involvement in personnel work is in a clerical capacity). Also, we note that contrary to the Activity's assertion, the CSR's record testimony supports the RD's finding that the CSR does not advise management on disciplinary matters. See Tr. at 98.
In addition, the Activity maintains that the RD failed to note the importance of the CSR's performance of PMS duties. The Activity contends that the record included a copy of the position description for the PMS position and the incumbent testified that she performed those duties. In this respect, the RD stated that the CSR testified that she performed the duties of the PMS, without providing any details regarding what "these duties might entail or how that circumstance would be dispositive in this matter." RD's Decision at 8. The RD's finding is consistent with our review of the record. See Tr. at 95-96. Also, contrary to the Activity's claim, the record reveals that the CSR neither discussed nor referred to the position description for the PMS. Thus, we find that the Activity has failed to demonstrate or show that the RD's findings are clearly erroneous.
Accordingly, we find that the Activity has not established that the RD committed clear and prejudicial errors concerning substantial factual matters and, therefore, there is no basis for reviewing the RD's decision concerning whether the CSR performs personnel work and should be excluded from the unit under § 7112(b)(3).
We deny the Activity's application for review.
Footnote # 1 for 57 FLRA No. 122
The RD also determined that the incumbents of the QAA, RST, CSA, and SPO/ISD positions are not management officials and/or confidential employees. The Agency does not seek review of these determinations and they will not be addressed further.
Footnote # 2 for 57 FLRA No. 122
any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity.
Footnote # 3 for 57 FLRA No. 122
Footnote # 4 for 57 FLRA No. 122
Under section 2422.31 of the Authority's Regulations, 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:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
5 C.F.R. § 2422.31(c).
Footnote # 5 for 57 FLRA No. 122
When a hearing has been conducted, the transcript and all material entered into evidence, including any posthearing briefs, become a part of the record.
Footnote # 6 for 57 FLRA No. 122
Footnote # 7 for 57 FLRA No. 122
Although the Agency states that the application should be granted on this ground, the gravamen of the Agency's argument with regard to the QAA positions does not involve erroneous factual findings, but rather misapplication of Authority case law. Thus, we construe the Agency's argument as a claim that the RD failed to apply established law under § 2422