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 unit . . .").
Given the state of the precedent and the fact that the Authority has not decided a § 7112(b)(3) case 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, I believe that it is appropriate to grant the application for review in this case. However, I also believe that the issue in this case can be resolved based on the record before us and see no need to seek further briefing either from the parties or more broadly through a Federal Register notice.
In my view, the Authority set forth the proper standard to resolve this case when it stated in OPM 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[.]" OPM at 246 (emphasis added). An employee who performs such personnel work on behalf of the agency is clearly aligned with the interests of management, and to allow the employee to be part of a bargaining unit would pose an inherent conflict with that employee's responsibilities to management. Therefore, such employees should be excluded under § 7112(b)(3) of the Statute.
Applying this test to this case, I would exclude the employees at issue. [n2] There is no dispute that, as the Regional Director found, the employees in question, who are assigned to the U.S. Department of the Army's North Central Civilian Personnel Operations Center located at Rock Island, Illinois (north central region), are engaged in personnel work in other than a purely clerical capacity. The Regional Director included these employees in the proposed bargaining unit because of his view that Authority precedent indicated that employees engaged in personnel work in other than a purely clerical capacity are excluded from a bargaining unit only if the personnel work may affect employees in that bargaining unit. However, as the Authority correctly concluded in OPM, the proper focus is on whether the [ v58 p8 ] personnel work performed by the employees relates to their own employing agency. If it does, the employees, who act as representatives of management's interests in such personnel work, would be faced with a conflict of interest between their jobs and union representation if included in the unit.
In this case, the RD found that the disputed employees provide "the full spectrum of human resource services to approximately 33,000 Army employees in the . . . north central region." RD's Decision at 2-3. The Agency further explains that the disputed employees "are recruiting for, staffing, and classifying positions within the [north central] region, and those positions are represented by labor organizations." Application for Review at 6. The Agency indicates that the majority of bargaining unit positions serviced by the north central region are represented by the same union that is seeking certification in this case, although in different local unions. The Agency notes that the north central region services over 50 different bargaining units represented by the same union. According to the Agency, inclusion of the disputed employees in the unit sought has the potential for creating conflicts of interest because the disputed employees would "represent the agency's interests in disputes with their own unions." Id. at 7 (emphasis in original).
More specifically, in its application for review, the Agency presents several examples of such conflicts of interest.