United States, Department of the Army, United States, Army Aviation Center, Fort Rucker, Alabama (Agency) and American Federation of Government Employees, AFL-CIO, Local 1815 (Labor Organization/Petitioner)

[ v60 p771 ]

60 FLRA No. 145

UNITED STATES
DEPARTMENT OF THE ARMY
UNITED STATES
ARMY AVIATION CENTER
FORT RUCKER, ALABAMA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1815
(Labor Organization/Petitioner)

AT-RP-04-0051

_____

ORDER
DENYING APPLICATION FOR REVIEW

March 24, 2005

_____

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

I.      Statement of the Case

      This case is before the Authority on an application for review filed by the American Federation of Government Employees, AFL-CIO, Local 1815 (Union) under § 2422.31 of the Authority's Regulations. The Department of the Army (Agency) did not file an opposition to the Union's application for review.

      The Union seeks review of the Regional Director's (RD's) Decision and Order excluding one employee from the bargaining unit represented by the Union. For the reasons set forth below, we deny the Union's application.

II.      Background and RD's Decision

      The Union is certified as the exclusive representative of all professional and nonprofessional general schedule employees of the United States Army Aviation Center, Fort Rucker, Alabama. RD's Decision at 1-2. The Union filed a petition seeking to clarify the unit to include one employee encumbering the Aerospace Engineering Technician position. Before the RD, the Agency contended that the employee should be excluded from the bargaining unit because she is a confidential employee within the meaning of § 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute). [*] 

      In determining whether the employee is a confidential employee, the RD found that the employee's first line supervisor, the Director of the Test Support Directorate (Director), serves as the step two deciding official for grievances involving employees under his supervision, issues correspondence to the Union addressing concerns over planned reassignments, and drafts correspondence to the Union for his supervisor's signature. See id. at 2-3. The RD also found that the Director "notifies the Union and offers to negotiate" over terminations of and changes in employees' compressed work schedules and is a member of an Agency negotiating team designed to address the Union's concerns over a planned Agency reorganization. Id. at 3.

      The RD determined that the employee provides administrative support to the Director. In this regard, the RD found that the employee edits the Director's responses to grievances and signs for correspondence from the Union. The RD also found that the employee has access to and prior knowledge of responses to grievances, proposed disciplinary actions, promotions, and awards and is in a location where she can overhear the Director's conversations concerning grievances and other personnel matters. See id. The RD further found that the employee has a key to a file cabinet where confidential personnel records and proposed disciplinary actions are kept. See id.

      The RD determined that the Director formulates and effectuates management policies in the field of labor relations. See id. at 5. In this regard, the RD noted that the Director assists in negotiations with the Union, implements and influences Agency policies, and decides grievances and equal employment opportunity matters. The RD further determined that the employee has a confidential relationship with the Director because she has access to and advance knowledge of grievance responses, employee evaluations, awards, and proposed disciplinary actions. See id.

      Based on his determinations, the RD concluded that the employee is a confidential employee under § 7103(a)(13) of the Statute. Accordingly, the RD ordered that the employee be excluded from the bargaining unit represented by the Union. [ v60 p772 ]

III.      Application for Review

      The Union asserts that the employee is not a confidential employee because the Director does not formulate or effectuate management policies in the field of labor relations and because the employee works on labor relations only occasionally and does not otherwise have access to labor relations matters. See Application for Review at 2. In addition, the Union claims that the RD's decision to not hold a hearing "unfairly treated" the Union and resulted in the RD making factual findings that are "not entirely correct." Id. Specifically, the Union claims that, contrary to the RD's finding, the Director's role in negotiating terminations of and changes in compressed work schedules is limited and any changes in such schedules the Director has been involved with were "very minor" and "did not require negotiation." Id.

IV.     Analysis and Conclusions

A.      The RD did not fail to apply established law regarding confidential employees.

      An employee is a confidential employee within the meaning of § 7103(a)(13) of the Statute if: (1) there is evidence of a confidential working relationship between an employee and the employee's supervisor; and (2) the supervisor is significantly involved in labor-management relations. An employee is not confidential in the absence of either of these requirements. See, e.g., NASA, Glenn Research Ctr., Cleveland, Ohio, 57 FLRA 571, 573 (2001).

      In determining whether a supervisor is significantly involved in labor-management relations, the Authority has identified responsibilities that are aspects of the formulation or effectuation of management policies in labor relations. These responsibilities include advising management on or developing negotiating positions concerning proposals, preparing arbitration cases for hearing, and consulting with management regarding the handling of unfair labor practices. See, e.g., United States Dep't of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Ariz., 37 FLRA 239, 240-41 (1990) (DOI).

      The RD determined that the Director formulates and effectuates management policies in the field of labor relations because he assists in negotiations with the Union and decides grievances. See RD's Decision at 5. The RD's conclusion is consistent with Authority precedent finding that a supervisor who is a second level grievance official and has answered a grievance is significantly involved in labor-management relations. See United States DHHS, Office of the General Counsel, Balt., Md., 45 FLRA 894, 896-97 (1992); DOI, 37 FLRA at 240-41.

      With regard to whether the employee serves in a confidential capacity to the Director, the RD found that the employee is in a confidential status because she has access to and prior knowledge of grievance responses, proposed disciplinary actions, and employee evaluations and awards. See RD's Decision at 5. The RD's determination is consistent with Authority precedent finding that an individual is a confidential employee if the employee obtains advance information of management's positions with regard to the disposition of grievances and other labor relations matters, overhears discussions of labor relations matters, and has access to and prepares materials related to labor relations. See United States Dep't of Labor, Wash., D.C., 59 FLRA 853, 855 (2004) (Chairman Cabaniss dissenting on other grounds).

      Based on the foregoing, we find that the RD's determination that the employee is a confidential employee within the meaning of § 7103(a)(13) of the Statute is consistent with Authority precedent. Consequently, we conclude that review of the RD's decision is not warranted on the ground that the RD failed to apply established law regarding confidential employees.

B.     The RD did not commit a prejudicial procedural error or a clear and prejudicial error concerning a substantial factual matter.

      The Union asserts that the RD's decision to not hold a hearing "unfairly treated" the Union and resulted in the RD making factual findings regarding the Director's involvement in negotiating compressed work schedules that are "not entirely correct." Application for Review at 2. We construe the Union's assertions as claims that the RD committed a prejudicial procedural error and a prejudicial error concerning a substantial factual matter. See Fed. Mediation & Conciliation Serv., 52 FLRA 1509, 1516 (1997).

      Under the Authority's Regulations, the RD "will issue a notice of hearing to inquire into any matter about which a material issue of fact exists[.]" 5 C.F.R. § 2422.30(b). The Union asserts that, at a hearing, it would have established that the Director was not significantly involved in labor relations because his role in negotiating compressed work schedules is limited and any changes in such schedules the Director has been involved with were "very minor" and "did not require negotiation." Application for Review at 2. Even assuming the Union could have established through a hearing that the Director's role in negotiating compressed work [ v60 p773 ] schedules was not significant, this would not affect the RD's determination that the employee is a confidential employee. In this regard, the RD found that the Director is significantly involved in labor relations because he decides grievances and assists in negotiations with the Union. See RD's Decision at 5. As evidence, other than the Director's involvement in negotiating compressed work schedules, supports the RD's determination that the Director is significantly involved in labor relations, the Union has not identified a matter about which a material issue of fact exists and therefore has not demonstrated that the RD was required to hold a hearing. Accordingly, we conclude that review of the RD's decision is not warranted on the ground that the RD committed a prejudicial procedural error.

      Similarly, the Union's claim that the RD's factual findings concerning the Director's involvement in negotiating compressed work schedules are "not entirely correct[,]" Application at 2, even if accurate, does not establish a prejudicial factual error. As determined above, evidence other than the Director's involvement in negotiating compressed work schedules supports the RD's determination that the Director is significantly involved in labor relations. Accordingly, any error with respect to this