United States Department of Justice, Immigration and Naturalization Service, Washington, D.C. (Activity) and American Federation of Government Employees, Local 511, AFL-CIO (Labor Organization/Petitioner)

[ v58 p12 ]

58 FLRA No. 5

UNITED STATES DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE, WASHINGTON, D.C.
(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 511, AFL-CIO
(Labor Organization/Petitioner)

WA-RP-00085

_____

ORDER GRANTING, IN PART, AND DENYING, IN PART, APPLICATION FOR REVIEW

August 26, 2002

_____

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

      This case is before the Authority on an application for review filed by the Petitioner under § 2422.31 of the Authority's Regulations. The Petitioner seeks review of the Regional Director's (RD's) decision clarifying the bargaining unit to exclude 21 attorney positions. The Petitioner claims that the RD erred in determining that four employees are engaged in "security work" under § 7112(b)(6) of the Federal Service Labor-Management Relations Statute (the Statute) and that 17 other employees are engaged in "personnel work" under § 7112(b)(3) of the Statute. The Activity filed an opposition to the application for review.

      Section 2422.31(c) of the Authority's Regulations provides that the Authority may grant an application for review when the application demonstrates that:

(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.

      We deny the application for review as to the RD's determination that four employees are excluded from the unit on the basis of § 7112(b)(6) of the Statute. The RD found that, consistent with United States Dep't of Justice, 52 FLRA 1093 (1997) (DOJ), these employees' work includes the regular use of, or access to, classified information. The Petitioner claims that review is warranted because: (1) the decision raises issues for which there are an absence of precedent; (2) the RD erred in applying established precedent, namely, DOJ; (3) the RD committed a prejudicial error concerning several factual matters; and (4) even if the Authority finds that the RD did not err in applying DOJ, such precedent warrants reconsideration.

      Upon examination of the record and the arguments presented, we find that the Petitioner has not demonstrated that review is warranted on any of the bases asserted. Accordingly, we deny this aspect of the application for review.

      However, we grant the application for review with respect to the RD's determination that 17 employees are excluded from the bargaining unit on the basis of § 7112(b)(3) of the Statute. Citing Office of Personnel Management, 5 FLRA 238 (1981), the RD found that the employees, who provide personnel services for Agency employees in bargaining units other than the unit in which the Petitioner seeks to include them, perform internal personnel work that is directly related to the personnel operations of their Agency. The Petitioner claims that review is warranted because: (1) the decision raises issues for which there is an absence of precedent; (2) the RD erred in applying established precedent; and (3) the RD committed a prejudicial error concerning several factual matters.

      We grant review on the same ground on which we recently granted review in United States Dep't of the Army, North Central Civilian Personnel Operation Center, Rock Island, Illinois, 58 FLRA No. 3 (Aug. 9, 2002) (North Central Civilian Personnel Operation Center). In this regard, in North Central Civilian Personnel Operation Center we stated 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 [ v58 p13 ] units other than the one seeking to include those civilian employees.

North Central Civilian Personnel Operation Center, 58 FLRA No. 3, slip op. at 7. [n2] 

      Review is therefore granted and the parties are requested to address the same questions identified in that case, namely:

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?

Id .

      In accordance with 2422.31(g) of the Authority's Regulations, the parties are directed to file briefs on the issue set forth. [n3] 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 Street, NW, 4th Floor
Washington, D.C. 20424-0001

Separate Opinion of Member Armendariz:

      I agree with my colleagues that the application for review should be denied with respect to the RD's exclusion of the four employees under § 7112(b)(6) of the Statute. However, consistent with my separate opinion in United States Dep't of the Army, North Central Civilian Personnel Operation Center, Rock Island, Illinois, 58 FLRA No. 3, slip op. at 9-12 (Aug. 9, 2002) (North Central Civilian Personnel Operation Center), I would grant the application with respect to the RD's exclusion of the 17 employees under § 7112(b)(3) and would find that the RD properly excluded these employees from the petitioned-for unit.

      In North Central Civilian Personnel Operation Center, I stated:

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 [Office of Personnel Management, 5 FLRA 238 (1981) (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.

58 FLRA No. 3, slip op. at 10.

      This is the standard that the RD applied in this ca