United States Department of the Army, North Central Civilian Personnel Operation Center, Rock Island, Illinois (Activity) and American Federation of Government Employees, Local 15, AFL-CIO (Union)

[ v58 p3 ]

58 FLRA No. 3

UNITED STATES
DEPARTMENT OF THE ARMY
NORTH CENTRAL CIVILIAN PERSONNEL
OPERATION CENTER, ROCK ISLAND, ILLINOIS
(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 15, AFL-CIO
(Union)

CH-RP-01-0033

_____

ORDER GRANTING APPLICATION
FOR REVIEW

August 9, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on the Agency's application for review of the Regional Director's (RD's) decision finding that several employees are not excluded from a proposed bargaining unit as they are not engaged in "personnel work" as that term is used in § 7112(b)(3) of the Federal Service Labor-Management Relations Statute (Statute). The Union did not file an opposition to the Agency's application for review. For the reasons that follow, we grant the Agency's application for review.

II.     Background and RD's Decision

      The Union filed a petition seeking an election for representation of certain employees of the Department of the Army, North Central Civilian Personnel Operations Center (Activity), located at the Rock Island, Illinois, Arsenal (RIA). During the processing of this petition, the Activity asserted that the employees occupying the following positions should be excluded from the proposed unit under § 7112(b)(3): Position Classification Specialist, Classification Assistant, Personnel [ v58 p4 ] Staffing Specialist, and Staffing Assistant (the disputed positions). [n2] 

      The Activity, through coordination with eleven Civilian Personnel Advisory Centers, provides staffing and classification services to approximately 33,000 Department of the Army (Agency) employees in the Agency's North Central region. The parties stipulated to the exclusion of the Activity's employees who process the personnel actions affecting Activity employees and other employees stationed at the RIA (the Rock Island team) from the proposed unit. [n3] 

      The RD determined that the disputed positions were not excluded from the proposed unit under § 7112(b)(3). The RD determined that these employees were not directly involved in performing personnel work affecting the proposed unit. Accordingly, the RD found that the inclusion of the disputed positions in the proposed unit would not create a conflict of interest between union representation and their job duties. Therefore, he concluded that the employees in the disputed positions are not engaged in personnel work within the meaning of § 7112(b)(3) and thus were not excluded from the potential bargaining unit.

III.     Application for Review

      The Agency asserts that the RD misapplied existing Authority precedent in his conclusion that the employees in the disputed positions do not perform personnel work within the meaning of § 7112(b)(3). Application for Review at 4. Further, the Agency claims that there is no Authority precedent supporting the RD's decision that the disputed positions do not perform personnel work within the meaning of § 7112(b)(3) of the Statute. Id. [n4] 

      The Agency offers a number of examples as to the potential conflicts of interest that could arise between an employee's union representation and his or her job duties. In this regard, the Agency notes that a majority of the organized positions serviced by the Activity are represented by different locals of the American Federation of Government Employees (AFGE), the same union seeking to represent the proposed unit.

      With regard to the potential conflicts, the Agency argues that a Classification Specialist, who has been elected to a local or national union office, could be in a position to determine the classification of an AFGE president in another bargaining unit. Next, the Agency claims that a Staffing Specialist, who happens to be a Union official, could be asked to serve as an Agency witness in a grievance filed by the president of a different AFGE local over the procedures used in filling a position. The Agency further maintains that the inclusion of the disputed positions into the proposed unit could create a conflict of interest in the planning of a reduction-in-force (RIF). The Agency contends that Staffing Specialists are frequently asked to provide guidance and advice concerning RIF's and that an employee's Union status might make the Agency reluctant to consult with that employee concerning a proposed RIF that would affect AFGE members at the serviced installation. Further, the Agency asserts that the disputed employees must interpret and apply negotiated agreements of other AFGE bargaining units. The Agency contends that in all of these cases, Union members and officials represent the Agency's interests in matters involving their own union. [ v58 p5 ]

      The Agency argues that the conflicts of interest present when an employee performs non-clerical personnel work for members of his or her bargaining unit are also present when an employee performs non-clerical personnel work for any bargaining unit in the Agency. Further, even in situations where no real conflict of interest exists, the Agency maintains that the perception of such a conflict is palpable and that management will undoubtedly question the divided loyalities of a Union official performing personnel work for another bargaining unit in the Agency.

      The Agency also distinguishes two cases relied upon by the RD to support his decision that the disputed employees were not excluded from the proposed unit by § 7112(b)(3), Office of Personnel Management, 5 FLRA 238 (1981) (OPM) and St. Louis Region, United States Civil Serv. Comm'n, St. Louis, Mo., 2 A/SLMR 290 (1972) (CSC). According to the Agency, the contested positions in those cases were responsible only for providing advice and assistance to personnel offices outside of their own agencies and did not perform the day-to-day functions of an operating personnel office. In contrast, according to the Agency, the employees in the disputed positions perform personnel work for employees of their employing agency. Therefore, the Agency contends that they should be excluded from the proposed unit under § 7112(b)(3).

      Furthermore, the Agency claims that the inclusion of the disputed employees into the proposed bargaining unit will not promote the efficiency of the Agency's operations as employees assigned to the Rock Island team can be expected to be reassigned to perform personnel work for employees at other installations. [n5]  The Agency argues that the movement of employees onto and off of the Rock Island team will lead to inefficient Agency operations.

      The Agency also objects to the inclusion of certain employees who perform personnel services for the Tank-automotive Armament Command (TACOM), which has some of its employees stationed at the RIA, into the proposed unit.

      Finally, the Agency cites to a decision of the Acting Regional Director of the Authority's Atlanta Regional Office finding that employees performing duties similar to those performed by the employees in the disputed positions were excluded from a proposed unit under § 7112(b)(3). According to the Agency, this conflict "demonstrate[s] [a] lack of clear Authority precedent in this area and the need for the Authority to review and reverse" the RD in this case. Application for Review at 10.

IV.     Analysis and Conclusions

      The Authority has indicated that a unit will not be found appropriate, under § 7112(b)(3), if it includes an employee directly involved in performing personnel work "affecting the bargaining unit" and making recommendations to management concerning such personnel actions. See United States Dep't of the Army, Headquarters, 101st Airborne Division, Ft. Campbell, Ky., 36 FLRA 598, 602 (1990). The Authority, however, has also indicated that employees are excluded from a proposed unit under § 7112(b)(3) if they perform personnel work "relating directly to the personnel operations of their own employing agency[.]" OPM, 5 FLRA at 246.

      Here, the employees in the disputed positions do not perform any personnel work affecting the proposed bargaining unit. Rather, they perform personnel work for Agency employees outside of the proposed unit.

      In applying those two conflicting standards, the Authority has never issued a decision directly addressing whether employees who perform personnel duties for Agency employees located outside the bargaining unit would be excluded under § 7112(b)(3). In that regard, the Agency correctly asserts that the decisions relied upon by the RD do not address this exact issue. In OPM, the Authority ruled that a group of employees who performed advisory personnel services for other agencies were not excluded from a unit of OPM employees under § 7112(b)(3). OPM, 5 FLRA at 245-47. Similarly, in CSC, the Assistant Secretary for Labor-Management Relations determined that a group of employees who performed similar job duties in OPM's predecessor agency did not perform personnel work in other than a purely clerical capacity. OPM, [ v58 p6 ] 5 FLRA at 245. Thus, neither of these cases addressed the issue of whether employees who perform personnel duties for Agency employees located outside the bargaining unit would be excluded under § 7112(b)(3).

      The above circumstances demonstrate that existing Authority precedent does not provide sufficient guidance on whether § 7112(b)(3) excludes from bargaining units employees performing civilian personnel work in other than a purely clerical capacity for fellow agency employees in bargaining units other than the one seeking to include those civilian employees. [n6] 

      Review is therefore granted and the parties are requested to address the following question:

Section 7112(b)(3) of the Statute provides that a bargaining unit is not appropriate if it includes "an employee engaged in personnel work in other than a purely clerical capacity." Does section 7112(b)(3) operate to exclude employees who perform personnel work concerning other employees of the same agency who are not included in the bargaining unit at issue? In this regard, does the term "personnel work" refer to personnel work of the agency or only to work that concerns other employees of the same bargaining unit?

      In accordance with 2422.31(g) of the Authority's Regulations, the parties are directed to file briefs on the issue set forth. [n7] Briefs will be considered if received by the date set forth in the Federal Register Notice. Placing submissions in the mail by this deadline will not be sufficient. Extensions of time to submit briefs will not be granted. Briefs should be directed to:

Director, Case Control Office
Federal Labor Relations Authority
607 14th St., NW, 4th Floor
Washington, D.C. 20424-0001

V.     Order

      The application for review is granted.


File 1: Authority's Decision in 58 FLRA No. 3
File 2: Opinion of Member Armendariz


Footnote # 1 for 58 FLRA No. 3 - Authority's Decision

   Member Armendariz's separate opinion is set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 3 - Authority's Decision

   5 U.S.C. § 7112(b) provides, in pertinent part:

A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes-
. . . .
(3)     an employee engaged in personnel work in other than a purely clerical capacity . . .

Footnote # 3 for 58 FLRA No. 3 - Authority's Decision

   The RD also resolved a challenge to the bargaining unit eligibility of the Personnel Staffing Specialists assigned to the Army Career Training Education Development System (ACTEDS/ MEDCELL). The RD found that those employees were excluded from the proposed unit under § 7112(b)(3) as their union affiliation would create a conflict of interest with their job duties, which affect employees in the proposed unit. RD's Decision at 10-11. That finding was not challenged and thus is not before the Authority.


Footnote # 4 for 58 FLRA No. 3 - Authority's Decision

   5 C.F.R. § 2422.31(c) provides, in pertinent part:

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.

Footnote # 5 for 58 FLRA No. 3 - Authority's Decision

   5 U.S.C. § 7112(a) provides, in part:

The Authority shall determine the appropriateness of any unit. The Authority shall determine . . . any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved.

Footnote # 6 for 58 FLRA No. 3 - Authority's Decision

   The Agency also claims that the inclusion of the employees in the disputed positions in the proposed unit would lead to inefficient Agency operations. This argument implicates the appropriate unit criteria. The Authority, however, does not "consider or apply the appropriate unit criteria under § 7112(a) in determining solely whether employees . . . [or] positions . . . satisfy the statutory exclusions under § 7112(b)." AFGE, Local 3529, 57 FLRA 633, 637 (2001).


Footnote # 7 for 58 FLRA No. 3