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)

[ v59 p296 ]

59 FLRA No. 45

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

_____

DECISION AND ORDER

September 30, 2003

_____

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

I.      Statement of the Case

      By order dated August 9, 2002, the Authority granted the United States Department of the Army's (Agency's) application for review of the Regional Director's (RD's) decision granting, in part, the Union's petition for review. In granting review, the Authority asked the parties to submit additional briefs addressing 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?

United States Department of the Army, North Central Civilian Personnel Operation Ctr., Rock Island, Ill., 58 FLRA 3, 6 (2002) (Member Armendariz writing separately). The Authority also published a Federal Register Notice inviting interested persons to address the issue. See 67 Fed. Reg. 63,427 (Oct. 11, 2002). [n2] 

      The Union and the Agency both filed briefs, as did the parties in INS. Seven other Federal agencies and labor organizations also filed briefs.

      For the reasons that follow, we find that § 7112(b)(3) excludes all employees performing personnel work, in other than a purely clerical capacity, concerning other employees of the same agency irrespective of whether those other employees are included in the bargaining unit at issue.

II.      Background and RD's Decision

      The Union filed a petition seeking an election for representation of certain Agency employees located at the Rock Island, Illinois, Arsenal (RIA). During the processing of this petition, the Agency 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 Staffing Specialist, and Staffing Assistant (the disputed positions). [n3] 

      The Activity, through coordination with eleven Civilian Personnel Advisory Centers (CPAC's), provides staffing and classification services to approximately 33,000 Agency employees in its North Central region. The parties stipulated to the exclusion of the Agency's employees who process the personnel actions affecting employees stationed at RIA from the proposed unit. [ v59 p297 ]

      The employees occupying the disputed positions perform a wide variety of tasks related to the Agency's personnel management. The employees occupying the Position Classification Specialist (PCS) positions perform staffing and classification services, and provide assistance and other information regarding grievances and arbitration hearings and requests for assistance from local installations. The employees classified as Classification Assistants generally perform the same type of job duties as the PCSs, except the positions that the Classification Assistants classify and help develop are at a lower grade level and, therefore, less complex. The employees classified as Personnel Staffing Specialists (PSSs) perform staffing duties for various installations served by the Activity. The employees classified as Staffing Assistants develop and issue vacancy announcements, perform other duties in connection with the filling of vacancies and process a wide variety of noncompetitive staffing actions such as promotions and reassignments.

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

III.     Positions of the Parties

A.     Briefs of the Parties

1.     Agency

      The Agency contends that when Congress established rules affecting bargaining unit membership or other matters related to bargaining unit status, it was explicit in what it established. The Agency cites §§ 7103(a)(12) and 7116(c) of the Statute in this connection. According to the Agency, because the § 7112(b)(3) exclusion is not explicitly limited to just those employees performing the required personnel work for the bargaining unit in which they are proposed to be included, the statutory exclusion applies to exclude the employees in this case because they perform the required personnel work. The Agency also relies on the statutory definition of "employee" found at § 7103(a)(2) to argue that an individual employed by an agency must be excluded from a bargaining unit under § 7112(b)(3) if he or she is engaged in non-clerical personnel work.

      The Agency further maintains that the bargaining unit exclusion set forth at § 7112(b)(4), for employees engaged in administering the provisions of the Statute, provides further support for its position in this case. The Agency claims that if the Authority interprets § 7112(b)(3) to permit employees performing personnel work involving employees in other bargaining units in the same agency to be represented by unions, then § 7112(b)(4) would likewise have to be interpreted to permit employees administering the Statute for other bargaining units in the same agency to be represented. The Agency contends that such an interpretation of § 7112(b)(4) would result in labor relations staff representing management in one matter and then representing the union in another.

      The Agency asserts that the term "personnel work" refers to any personnel work performed for an employee's employing agency. Applying that standard, the Agency argues that the disputed positions are excluded from the proposed bargaining unit by § 7112(b)(3).

      The Agency then notes that many agencies are moving towards the regionalization of personnel services and that regional personnel offices provide many of the services formerly supplied by local personnel offices. In this case, the employees at issue perform staffing and classification services, provide background for grievances, serve as witnesses at arbitrations and provide non-binding guidance to the local installations. The Agency believes that, if the employees are included in the bargaining unit, then management would question the actions taken and advice given by represented personnel employees to such an extent that it would render those employees ineffective in their positions.

      2.     Union

      The Union contends that the RD correctly determined that the disputed positions are not engaged in personnel work within the meaning of § 7112(b)(3) of the Statute as the personnel work performed by the employees in question would not impact the bargaining unit in which they propose to be included.

      In the Union's view, the term "personnel work" does not refer to personnel work within an agency generally but refers to personnel work for an employee's specific bargaining unit. The Union maintains that § 7112(b)(3) only excludes employees when conflicts of interest between bargaining unit membership and the performance of employees' job duties actually exist. [ v59 p298 ] According to the Union, the RD could not identify any conflicts of interest and therefore, included the disputed positions in the proposed unit.

      The Union claims that none of the disputed positions processes personnel actions which affect the proposed unit or any other bargaining unit in the Agency.

      The Union disputes the Agency's assertion that membership in a labor organization alone, in the absence of a conflict of interest, provides a basis for exclusion from a proposed bargaining unit. In this regard, the Union notes that the Authority has recognized that "[m]embership in a labor organization is in itself not incompatible with the obligations of fidelity owed to an employer by its employees." United States Dep't of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1381 (1990) (quoting Dun & Bradstreet, Inc., 240 NLRB 162, 163 (1979)).

      The Union then claims that no such conflicts of interest are present here as the Agency does not provide labor relations services. Further, according to the Union, the Agency's work is limited to processing routine personnel actions after they have been initiated by local management. The Union argues that this work does not affect any bargaining units, including the one proposed. Absent any effect on the proposed bargaining unit, the Union maintains that the RD properly determined that the disputed positions should be included in the unit.

      The Union next discusses what it believes to be significant technological changes in the delivery of the Agency's personnel services and argues that such changes should influence the Authority's decision in this case. According to the Union, Civilian Personnel Operation Centers (CPOC's), such as the one at issue here, operate as regional personnel action processing plants that maintain Official Personnel Files, while CPAC's, local facilities which report directly to the local installation commander, are more like traditional personnel offices as they communicate with local management and perform labor relations duties. The Union maintains that proposed actions are received electronically by CPOC's directly from CPAC's and that employees at CPOC's rarely directly communicate with local management. Additionally, the Union notes that employees receive benefits counseling from a different centralized center and that an electronic system is used to match skills and vacant positions. Moreover, the Union contends that CPOC's do not perform classification duties in the traditional sense as managers can now select position descriptions out of a computer database and submit that document along with their request for a personnel action.

      The Union then claims that the intent of Congress, in enacting § 7112(b)(3), was similar to the rule under the National Labor Relations Act that allows employers to have non-bargaining unit employees handle their labor relations activities. Because the disputed positions do not perform labor relations tasks, the Union contends that they should not be excluded from the proposed unit under § 7112(b)(3).

      Finally, the Union contends that there is no actual conflict of interest present in this case which would preclude employees from membership in the proposed bargaining unit. Instead, the Union argues that the disputed positions are not required to exercise independent judgment and are merely "laborers being paid to process personnel actions instead of machining gears." Union's Brief at 13.

B.     Briefs of the Parties in INS

1.     Agency (INS)

      INS contends that § 7112(b)(3) excludes from bargaining units employees who perform the personnel work of the Agency. INS maintains that conflicts of interest are present even across bargaining unit lines. For example, INS claims that an employee may be hesitant to recommend a personnel policy or practice that may ultimately affect his or her own bargaining unit.

      INS maintains that the employees at issue in INS have access to personnel records in the course of representing management in personnel-related matters. Additionally, according to INS, all of the bargaining unit employees in INS are represented by various American Federation of Government Employees (AFGE) locals. Based on these considerations, INS asserts that there is an inherent conflict of interest between membership in AFGE and attorneys performing work involving internal personnel matters. INS argues that this inherent conflict of interest would lead management to question whether it was receiving the best possible advice in personnel-related matters from its attorneys.

2.     Union (Local 511)

      Local 511 asserts that § 7112(b)(3) excludes employees who perform personnel work that would create a demonstrable conflict of interest between one's union affiliation and one's job duties. In this regard, Local 511 claims that if an employee's job duties do not affect their own bargaining unit in a more than a de minimis manner, no such conflict of interest exists. [ v59 p299 ] Therefore, Local 511 contends that "personnel work" refers to the personnel work of the agency but only to the extent that the work somehow concerns or affects employees of the same bargaining unit.

      Local 511 further claims that bargaining unit status alone is not enough to exclude employees from bargaining units in the absence of a conflict of interest as the purpose of § 7112(b)(3) is to avoid such conflicts of interest. Local 511 also argues (citing EEOC, 9 FLRA 973 (1982)), that there is no reason to treat employees who perform personnel work for other agencies and employees who perform personnel work for other bargaining units differently. Therefore, Local 511 concludes that § 7112(b)(3) does not preclude the employees at issue in INS from joining bargaining units as the Regional Director in that case found that no conflicts of interest were present.

C.     Amicus Briefs

1.     National Treasury Employees Union (NTEU)

      NTEU asserts that the Authority has consistently defined "personnel work" in terms of its impact on bargaining unit employees. Accordingly, NTEU claims that employees are covered by the § 7112(b)(3) exclusion only if their personnel-related work directly affects employees in the bargaining unit. In NTEU's view, this practice reflects the Authority's long-held view that Congress never intended to exclude from union representation all employees who provide personnel-related services. Therefore, NTEU maintains that an obvious conflict of interest between bargaining unit membership and an employee's job duties must be present prior to excluding that employee from the bargaining unit at issue.

2.     Department of the Navy (DON)

      DON claims that there is no basis in the plain language of the Statute for the conflict of interest standard and that the Statute only asks if the employees at issue are performing personnel work. In DON's view, the application of a conflict of interest standard to § 7112(b)(3) would render that language unnecessary because § 7120(e) already excludes employees with a conflict of interest from participating in a union organization.

      DON further argues that even if § 7112(b)(3) is ambiguous, the imposition of a conflict of interest standard is not a reasonable exercise of the Authority's power to interpret the Statute. In this connection, DON notes the existence of a similar provision covering bargaining units in the Postal Service excludes employees who perform personnel duties in a nonconfidential capacity. [n4] DON argues that because Congress chose not to use the term "nonconfidential" in § 7112(b)(3) when it subsequently enacted the Statute, it intended to eliminate confidentiality from the consideration of the issue. Moreover, DON contends that it would be redundant for Congress to insert a conflict of interest requirement into § 7112(b)(3) when Congress already included an exception for confidential employees in § 7112(b)(2) of the Statute.

      In light of these considerations, DON contends that the term "personnel work" refers to all personnel work that affects the interpretation of rights and benefits under federal personnel laws, rules and regulations within the entire Federal government.

      Finally, DON argues that even if a conflict of interest standard were appropriate, a conflict of interest exists for any employee doing non-clerical personnel work. Specifically, DON claims that personnelists can be called on to represent an agency in an adversarial hearing, the decisions of which become rules of law throughout the government. DON contends that this would give rise to a conflict of interest between employees' personnel duties and their pecuniary interest advanced collectively through their exclusive representative.

3.     Department of the Treasury (DOT)

      DOT maintains that the term "personnel work" refers to the personnel work of the agency at issue. DOT asserts that the term "personnel work" focuses on the type of work performed. DOT argues that personnelists' alignment with management places them at odds with the interests of other agency employees and allowing them to be represented would lead to untenable conflicts of interest. With regard to such conflicts of interest, DOT claims that permitting personnelists to be represented could lead to the disclosure of sensitive information to a union representative and result in a chilling effect on the communication between managers and personnelists. Moreover, in DOT's view, the inclusion of personnelists in bargaining units would impede [ v59 p300 ] an agency's ability to assign work and adjust workload because it could not assign work to certain employees based on their union affiliation.

4.     Environmental Protection Agency (EPA)

      According to EPA, § 7112(b)(3) excludes employees performing personnel work for agency employees in bargaining units other than the one at issue. EPA argues that because Congress used the exact same language in § 7112(b)(3) that had been used in Executive Orders 10,988 and 11,491, it intended to retain the prohibition against the inclusion of employees performing internal agency personnel work contained therein. [n5] 

      EPA further claims that Congress included certain conditional exclusions from bargaining units, such as § 7112(b)(1) in the Statute, and that its failure to write such a conditional exclusion in § 7112(b)(3) demonstrates that Congress intended the prohibition contained therein to apply unconditionally regardless of the presence of a conflict of interest.

      Further, EPA analogizes the exclusion in § 7112(b)(3) to the exclusion contained at § 7112(b)(7). [n6] According to EPA, employees can be excluded under that provision even if they are investigating matters arising outside of a relevant bargaining unit, and the same logic applies here. Along those same lines, EPA also claims that if the employees in the disputed positions are permitted to become members of a bargaining unit, then there would be nothing to stop confidential employees from becoming members of a bargaining unit with which their official duties do not bring them into contact.

      Finally, EPA argues that permitting certain employees who perform personnel work to be represented by labor organizations would interfere with an agency's ability to assign work as it would prevent that agency from assigning certain work to certain employees. Based on that consideration, EPA maintains that the inclusion of such employees in bargaining units would lead to inefficient and ineffective government.

5.     OPM

      OPM claims that § 7112(b)(3) excludes from bargaining units all employees who perform personnel work, even if that work is for a different bargaining unit or a different agency. OPM argues that the Authority is not free to amend the terms of the Statute and that it has done so by using a conflict of interest standard in analyzing issues arising from § 7112(b)(3).

      OPM maintains that no practice existed under Executive Order 11,491 of excluding employees performing personnel work only in the presence of a conflict of interest between those job duties and union representation. OPM argues that language in St. Louis Region, United States Civil Service Commission, St. Louis, Mo., 2 A/SLMR 290 (1972) (St. Louis Region), suggesting that employees performing personnel work for employees outside the proposed bargaining unit should not be excluded from that unit is dicta and that Congress therefore could not have been presumed to have adopted that language when it enacted the Statute. Further, OPM claims that the changes implemented in the structure and the mission of the Civil Service Commission (Commission) in its transformation into OPM render any potentially germane precedent arising from the Commission inapplicable. According to OPM, the Commission was established to police patronage, while Congress established OPM to serve as a human resources agency. OPM further argues that there is an inherent inconsistency between serving as a representative of management and being represented by a labor organization.

      For these reasons, OPM contends that any employee performing personnel work should be excluded from bargaining units under § 7112(b)(3). Consequently, OPM urges the Authority to overturn its decision in Office of Personnel Management, 5 FLRA 238 (1981) (OPM), finding that § 7112(b)(3) did not exclude from bargaining units employees performing personnel work for other agencies. Alternatively, OPM asserts that a bargaining unit, under § 7112(b)(3), cannot appropriately include an employee performing personnel work for other agency employees outside the bargaining unit at issue.

6.     Department of the Interior (DOI)

      DOI asserts that "personnel work" means all personnel work of an employing agency and that all employees performing personnel work should be excluded from bargaining units under § 7112(b)(3). DOI claims that all employees performing personnel work are integrally involved in administering and influencing [ v59 p301 ] personnel policies. In DOI's view, an inherent conflict exists between union representation and a personnelist's job duties, especially if an employee is also serving as a representative or officer of a union. In support, DOI contends that if an employee performing personnel work for a different bargaining unit were allowed to be a member of a union, then that employee could be part of a management project establishing a new personnel policy, as well as being a member of the union's team negotiating over the impact of the proposed policy. DOI also argues that the Authority should find that the proposed unit fails to satisfy any of the appropriate unit criteria set forth in § 7112(a).

7.     Department of Defense (DOD)

      DOD contends that the exclusion set forth at § 7112(b)(3) applies to all employees performing personnel work regardless of organizational boundaries. Thus, in DOD's view, § 7112(b)(3) prohibits non-clerical personnel specialists in one Federal agency, whose personnel duties involve another Federal agency, from being in the bargaining unit. Alternatively, DOD argues that that provision prohibits non-clerical personnel specialists who perform personnel work for employees in the same agency from being bargaining unit members.

      DOD claims that a literal reading of § 7112(b)(3), in light of definitions contained in the Statute, precludes the inclusion in an appropriate unit of an individual employed by one of the Executive Departments who is engaged in personnel work that is not purely clerical in nature.

      DOD next argues that the legislative history of the National Labor Relations Act (NLRA) supports the unconditional exclusion of employees performing non-clerical personnel duties. DOD argues that that legislative history indicates that employees in personnel departments were excluded from the scope of the NLRA. DOD asserts that the application of a conflict of interest test does not comport with that legislative history or with precedent interpreting the NLRA.

      DOD then addresses the Assistant Secretary for Labor-Management Relations' decision in CSC. DOD argues that, under the relevant Executive Orders, agencies were empowered to make their own unit determinations and that the ruling in that case was based on the agency's practice of recognizing unions at other of its offices.

      Based on these considerations, DOD contends that the Authority should abandon the conflict of interest standard and return to what it asserts to be the clear meaning of the Statute to exclude from bargaining unit membership the types of employees such as those at issue here. Further, DOD urges the Authority to overturn its decision in OPM and exclude all employees engaged in non-clerical personnel work from bargaining units.

      DOD then claims that its ability to assign and properly utilize its personnel specialists would be adversely affected if some of those employees were represented by or served as union officials. DOD maintains that the union affiliation of a personnel specialist might cause management to refrain from giving that employee certain assignments and thereby affect the effectiveness of the Agency's operations.

      DOD asserts that "personnel work" should be defined in terms of the work performed by the employee, not for whom the work is performed. The type of personnel work which would exclude an employee from bargaining unit eligibility, in DOD's view, would be any work for an agency, as that term is defined in 5 U.S.C. §§ 101 and 105.

IV.      Analysis and Conclusions

      Section 7112(b)(3) of the Statute provides that a bargaining unit may not be found appropriate if it includes "an employee engaged in personnel work in other than a purely clerical capacity[.]" As noted in our decision granting the Agency's application for review in this case, the Authority has not previously decided a case involving § 7112(b)(3) where the disputed employees performed personnel work relating to other employees in their agency who were outside of the bargaining unit in question. For the reasons that follow, we conclude that such employees are excluded from appropriate units.

      In interpreting the Statute, we begin with its wording. See United States Department of Agriculture, Rural Dev. Cent. Serv. Ctr., St. Louis, Mo., 57 FLRA 166, 168 (2001). In this regard, § 7112(b)(3) provides that a bargaining unit is not appropriate if it includes "an employee engaged in personnel work in other than a purely clerical capacity[.]" Nothing in this wording supports a conclusion that the exclusion depends in any way on the unit status of the employee(s) for whom personnel work is being performed. The terms of the Statute, thus, provide no support for the qualification urged by the Union and adopted by the Regional Director.

      In OPM, 5 FLRA 238, 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 (external) personnel assistance to other agencies, should be excluded [ v59 p302 ] on the basis of § 7112(b)(3). In reviewing the history and meaning of this provision, the Authority held that such external personnel work was not excluded based on the historical treatment of these employees as members of bargaining units prior to the enactment of the Statute in 1978, and the fact that nothing in the Statute or its legislative history indicated that Congress intended to change this past practice. Id. at 245. In this regard, the Authority noted 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." Id. (emphasis added).

      The Authority subsequently stated the test for exclusion under § 7112(b)(3) in a way that implies that exclusion may depend on the unit status of the employees for whom personnel work is performed. 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 . . ."). In each of these cases, however, the dispute concerned employees who clearly were performing personnel work affecting employees in the same bargaining unit. See id. at 604. See also Social Security Admin., 17 FLRA 239, 240 (1985); Department of Health and Human Services, Region X, Seattle, Wash., 9 FLRA 518, 524 (1982). Thus, the statements in those decisions that performing personnel work "affecting the bargaining unit" resulted in exclusion may be explained as statements of fact, not findings that such facts were necessary for the exclusion to apply in the first place.

      None of the parties to this case has provided a basis for modifying the Authority's conclusion in OPM that employees who perform personnel work relating directly to the personnel operations of their own employing agency are to be excluded from bargaining units. In particular, we reject the Union's argument that it is necessary to make a case-by-case determination of whether the particular work of particular employees would create a conflict of interest in applying § 7112(b)(3). The Statute reflects the intent of Congress to preclude employees engaged in personnel work from bargaining units when the work they perform for the agency is more than purely clerical. If Congress had intended to require individual conflict-of-interest determinations, then Congress could have modified the wording of § 7112(b)(3) to do so, as it did by requiring the determination that personnel work be performed "in other than a purely clerical capacity."

      Applying the foregoing principles to this case, there is no dispute that, as the Regional Director found, the employees in question, [n7] 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. [n8] 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, consistent with our decision today, the proper focus in this case is whether the personnel work performed by employees in other than a purely clerical capacity relates to their own employing agency. If it does, then Congress has mandated that such employees are excluded by § 7112(b)(3).

      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 record confirms the Agency's explanation 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. Because the personnel work performed by these employees in other than a purely clerical capacity relates to their own employing agency, these employees are excluded by § 7112(b)(3). [ v59 p303 ]

      Based on the foregoing, the employees at issue are excluded from the proposed bargaining unit by operation of § 7112(b)(3) of the Statute. [n9] 

V.      Order

      We remand the case to the RD to exclude the disputed employees from the bargaining unit. [n10] 


Concurring Opinion of Chairman Cabaniss:

      Consistent with my views upheld by the court in Eisinger v. FLRA, 218 F.3d 1097 (9th Cir. 2000), I would also reach the same conclusion as the majority in this case by the additional rationale of reliance on the plain language provided by Congress at § 7112(b)(3) of our Statute. That language excludes from bargaining unit status, without exception, "an employee engaged in personnel work in other than a purely clerical capacity[.]"



Footnote # 1 for 59 FLRA No. 45 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 45 - Authority's Decision

   In that Notice, the Authority also solicited amicus briefs on the same questions on which the Authority solicited briefs in this case for United States Dep't of Justice, Immigration and Naturalization Serv., Washington, D.C., 58 FLRA 12 (2002) (INS). In that case, another Regional Director determined that a group of attorneys performing personnel-related work were excluded from an existing bargaining unit under § 7112(b)(3). The Authority's decision in that case is being issued on the same date as the instant case. We include and consider in this case the responses to the Federal Register notice submitted by the parties in the INS case. However, the INS case has not been consolidated with this case for decision.


Footnote # 3 for 59 FLRA No. 45 - 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 # 4 for 59 FLRA No. 45 - Authority's Decision

   39 U.S.C. § 1202 provides, in pertinent part:

The National Labor Relations Board shall decide in each case the unit appropriate for collective bargaining in the Postal Service. The National Labor Relations Board shall not include in any bargaining unit-
. . . .
(2) any employee engaged in personnel work in other than a purely nonconfidential clerical capacity[.]

Footnote # 5 for 59 FLRA No. 45 - Authority's Decision

   Executive Orders 11,491 and 10,988 both precluded bargaining unit membership for employees "engaged in Federal personnel work in other than a purely clerical capacity."


Footnote # 6 for 59 FLRA No. 45 - Authority's Decision

   Under § 7112(b)(7), a unit is not appropriate if it includes:

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 # 7 for 59 FLRA No. 45 - Authority's Decision

   The disputed employees occupy the following positions: Position Classification Specialist, GS-0221-11; Classification Assistant, GS-0203-07; Personnel Staffing Specialist, GS-0212-11 and GS-0212-09; and Staffing Assistant, GS-0203-07. The RD found that an additional position, Personnel Staffing Specialist, GS-0212-12, assigned to the Army Career Training Education Development System, was excluded from the unit. No review was requested as to that position.


Footnote # 8 for 59 FLRA No. 45 - Authority's Decision

   The Union states in its brief that the disputed employees do not exercise independent judgment in initiating personnel actions. Union Brief at 7. However, in its brief to the RD, the Union conceded that the disputed employees perform personnel work in more than a clerical capacity. Union's Brief to the RD at 2. Thus, the Union cannot now claim that the disputed employees perform clerical work in only a clerical capacity. See 5 C.F.R. § 2429.5.


Footnote # 9 for 59 FLRA No. 45 - Authority's Decision

   Several agencies submitted briefs arguing that employees engaged in personnel work in other than a purely clerical capacity should be excluded from a bargaining unit if they perform such work for any agency in the Government. As this the resolution of that issue is not necessary to decide this case, we do not address it. See SSA, Baltimore, Md., 59 FLRA No. 26, slip op. at 21 n.5 (2003) (citing DOJ, 52 FLRA at 1106 n.12) (in light of the Authority's other determinations in the case, it was not necessary to consider argument to determine the unit status of the employees in dispute). Similarly, we need not address OPM's argument concerning the weight to be given the Assistant Secretary of Labor's decision in St. Louis Region, 2 A/SLMR 290.


Footnote # 10 for 59 FLRA No. 45 - Authority's Decision

   Member Armendariz notes that in his earlier opinion in the order granting the application for review (United States Dep't of the Army, North Central Civilian Personnel Operation Center, Rock Island, Il., 58 FLRA 3, 7-8 (2002)), he stated that the issue in this case could be resolved based on the existing record and that he saw no need to seek further briefing either from the parties or more broadly through a Federal Register notice. He also stated that, consistent with OPM, the employees here in dispute should be excluded from the proposed bargaining unit under § 7112(b)(3) of the Statute. Id. Having reviewed the briefs that have been filed, he reaffirms his view stated in his earlier opinion, and reflected in today's decision by the Authority, that the employees here