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

[ v59 p304 ]

59 FLRA No. 46

UNITED STATES
DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE WASHINGTON, D.C.
(Agency) [n1] 

and

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

WA-RP-00085

_____

DECISION AND ORDER

September 30, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members  [n2] 

I.     Statement of the Case

      As relevant here, the Authority granted the Union's application for review of the Regional Director's (RD's) decision clarifying a bargaining unit. United States Department of Justice, Immigration and Naturalization Service, Washington, D.C., 58 FLRA 12 (2002) (INS) (Member Armendariz writing separately). The RD determined that certain employees were excluded from the bargaining unit under § 7112(b)(3) of the Federal Service Labor-Management Relations Statute (the Statute), which excludes from a bargaining unit "an employee engaged in personnel work in other than a purely clerical capacity[.]" The RD found that the employees, who provide personnel services for Agency employees in bargaining units other than the unit in which the Union seeks to include them, perform internal personnel work that is directly related to the personnel operations of their Agency.

      In a separate case, the Authority granted review of a Regional Director's decision determining that employees performing personnel-related work for agency employees in bargaining units other than the unit in which the union sought to include them were not excluded from the proposed bargaining unit under § 7112(b)(3). United States Department of the Army, North Central Civilian Personnel Operation Ctr., Rock Island, Ill., 58 FLRA 3, 6 (2002) (Member Armendariz writing separately) (North Central Civilian Personnel Operation Ctr.).

      In connection with both cases, the Authority issued a Federal Register Notice inviting 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?

67 Fed. Reg. 63,427 (Oct. 11, 2002). The Union and the Agency in the instant case both filed briefs. Several other Federal agencies and labor organizations also filed amicus briefs. [n3] 

      Consistent with the decision issued today in North Central Civilian Personnel Operation Ctr., we affirm the RD's determination in this case that the disputed employees are excluded from the bargaining unit by operation of § 7112(b)(3) of the Statute.

II.     Background and RD's Decision

      The Agency is responsible for administering and enforcing provisions of the Immigration and Naturalization Act of 1952, as amended. The American Federation of Government Employees, AFL-CIO (AFGE) represents a bargaining unit of approximately 550 employees at the Agency, of whom 500 employees are attorneys. AFGE has delegated representational responsibility for the unit to the Union. Two unions affiliated with AFGE represent two other bargaining units at the Agency. AFGE, AFL-CIO, National Border Patrol Council (National Border Patrol Council) represents a bargaining unit of 12,000 nonprofessional Border Patrol [ v59 p305 ] personnel. AFGE, AFL-CIO, National Immigration and Naturalization Service Council (NINSC) represents a bargaining unit of approximately 9,000 nonprofessional employees of the Agency, except for those assigned to the Border Patrol.

      As relevant here, the Union sought to clarify the bargaining unit to include 17 employees who are attorneys at the Regional, District and Sector levels of the Agency. The employees encumber the positions of Assistant Regional Counsel, Assistant District Counsel and Assistant Sector Counsel. The Agency opposed including these employees in the bargaining unit.

      The parties stipulated that the issue of whether the 17 employees should be excluded from the bargaining unit under § 7112(b)(3) "is based on whether the Statute requires their exclusion because of their involvement in personnel work in other bargaining units." RD's Decision at 16. In this regard, the parties stipulated that these employees represent management in Merit Systems Protection Board (MSPB) and Equal Employment Opportunity Commission (EEOC) proceedings involving the employees represented by NINSC and employees represented by the National Border Patrol Council, and not the employees in the bargaining unit in which the Union seeks to include them. See id.

      The RD excluded the 17 employees on the basis that they are engaged in personnel work in more than a purely clerical capacity within the meaning of § 7112(b)(3) of the Statute. In so doing, the RD discussed the Authority's decision in Office of Personnel Management, 5 FLRA 238 (1981) (OPM), as follows:

In OPM, the Authority explored the issue of whether individuals involved in personnel work affecting employees outside of their bargaining unit-that is, employees of other agencies-should be disallowed bargaining unit status under Section 7112(b)(3). The Authority found that "employees 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." Because the employees at issue did not perform internal personnel work but only such personnel work as related to employees of other agencies, the Authority found that they were included in their own agency's bargaining unit.

Id. at 25.

The RD went on to state:
By contrast, the employees in the present case all perform internal personnel work related directly to the personnel operations of their agency. In my view, the fact that they do so largely with respect to two other units than the unit in which the union seeks to include them is not dispositive. Their duties and responsibilities with respect to EEO and MSPB matters clearly align them with Agency management, and such a definitive alignment with one party to a bargaining relationship is simply not mutable.

Id. at 25-26. In this regard, the RD cited United States Dep't of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371 (1990) (DOL), "where attorneys involved in EEO and MSPB cases were excluded from the bargaining unit because of this alignment." Id. at 26 n.19.

      The RD found that the employees' work in EEO and MSPB matters "involving investigation, research, and participation in the hearing process" meets the standard for exclusion under § 7112(b)(3) as personnel work that is more than clerical in nature and non-routine. Id. The RD further found that while some of the employees advise and represent the Agency in EEO and MSPB matters to a greater extent than others, "the Authority, in DOL at 1382, found that the frequency with which an employee performs a particular duty is not dispositive in determining whether that employee should be excluded from a bargaining unit." Id. The RD also noted that the employees advise the Agency on personnel matters generally.

      Accordingly, the RD excluded these employees from the unit based on § 7112(b)(3) of the Statute.

III.     Positions of the Parties

A.     Agency

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

      The Agency maintains that the disputed employees have access to personnel records in the course of representing management in personnel-related matters. Additionally, according to the Agency, all of the bargaining unit employees in the Agency are represented by various AFGE locals. Based on these considerations, [ v59 p306 ] the Agency asserts that there is an inherent conflict of interest between membership in AFGE and attorneys performing work involving internal personnel matters. The Agency 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.

B.     Union

      The Union contends that the disputed employees should not be excluded from the bargaining unit under § 7112(b)(3) because there is no conflict between their job duties and union affiliation. The Union 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, the Union claims that if an employee's job duties do not affect their own bargaining unit in a more than de minimis manner, then no such conflict of interest exists. Therefore, the Union contends that "personnel work" refers to the personnel work of the agency but only to the extent that the work concerns or affects employees of the same bargaining unit.

      The Union 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. The Union 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, the Union concludes that § 7112(b)(3) does not preclude the disputed employees from joining bargaining units as the RD in that case found that no conflicts of interest were present.

IV.     Analysis and Conclusions

      Under § 7112(b)(3), a bargaining unit will not be found appropriate if it includes "an employee engaged in personnel work in other than a purely clerical capacity." For a position to be excluded under that section, it must be determined that the character and the extent of involvement of the incumbent is more than clerical in nature and that the duties of the position are not performed in a routine manner. Further, the incumbent must exercise independent judgment and discretion in carrying out the duties. Dep't of the Treasury, Internal Rev. Serv., Washington, D.C. and Internal Rev. Serv., Cincinnati Dist., Cincinnati, Oh., 36 FLRA 138, 144 (1990).

      For the reasons stated in North Central Civilian Personnel Operation Ctr., 59 FLRA No.45, slip op. at 14-18, issued today, we hold that § 7112(b)(3) excludes from bargaining units all employees engaged in 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.

      The