File 2: Opinion of Member Armendariz

[ v58 p7 ]


Separate Opinion of Member Armendariz

      In my view, the application for review should be granted and the Regional Director's decision to include the disputed employees in the unit should be reversed.

      Section 7112(b)(3) of the Statute states that a unit will not be found appropriate if it includes an employee engaged in personnel work in other than a purely clerical capacity. The Authority has not previously decided a case involving the application of § 7112(b)(3) where the dispositive factor was whether the disputed employees performed such personnel work relating to other employees in their agency who were outside of the bargaining unit in question. However, in Office of Personnel Management, 5 FLRA 238 (1981) (OPM), the Authority addressed whether employees who were not involved in doing OPM's internal personnel work, but rather did work related to OPM's mission of delivering personnel assistance to other agencies, should be excluded on the basis of § 7112(b)(3).

      In reviewing the history and meaning of this provision, the Authority stated in OPM that "[t]he practice of excluding from bargaining units employees engaged in Federal personnel work has been a part of the formalized Federal service labor-management program since its inception in 1962[,]" and that "[t]hroughout the Federal service, implementation of these provisions [in Executive Orders preceding the Statute] resulted in the exclusion from bargaining units of employees of an agency who did personnel work within that agency." OPM, 5 FLRA at 245 (emphasis added). The Authority further stated that "[e]mployees who perform `internal' personnel work, that is, work relating directly to the personnel operations of their own employing agency, would be faced with a conflict of interest between their jobs and union representation if included in the unit[.]" Id. at 246 (emphasis added). [n1] 

      Subsequently, in other cases where it was clear that the disputed employees performed personnel work affecting employees in the same bargaining unit, the Authority sometimes used terms that could be read as restricting the § 7112(b)(3) exclusion to employees who perform personnel work in the bargaining unit (as opposed to elsewhere in the agency) in which their inclusion is being sought. See, e.g., United States Dep't of the Army, Headquarters, 101st Airborne Division, Ft. Campbell, Ky., 36 FLRA 598, 602 (1990) (holding that employees are properly excluded from a bargaining unit under § 7112(b)(3) when such employees are "directly involved in performing personnel work affecting the bargaining