United States, Department of Veterans Affairs (Agency/Activity) and American Federation of Government Employees, AFL-CIO (Union/Petitioner)

[ v60 p887 ]

60 FLRA No. 163

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
(Agency/Activity)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO
(Union/Petitioner)

SF-RP-04-0030

_____

ORDER
DENYING APPLICATION FOR REVIEW

May 3, 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 Agency under § 2422.31 of the Authority's Regulations. [n1] 

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

II.      Background and RD's Decision

      The Union is certified as the exclusive representative of all professional and non-professional nationwide bargaining units within the Agency. RD's Decision at 2. As relevant here, the Union filed a petition seeking to clarify the nonprofessional unit to include one employee encumbering the Secretary/Office Assistant (Secretary) position within the Office of the Chief, Chaplain and Social Work Service. [n2]  Before the RD, the Agency contended that the position should be excluded from the bargaining unit because the Secretary is a confidential employee within the meaning of § 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute). [n3] 

      The RD found that the employee's direct supervisor, the Director/Chief, Chaplain and Social Work Service (Director), is responsible for the work assignments, performance appraisals, and personnel actions of fourteen social workers, four chaplains, and two secretaries. Id. at 13-14. The RD also found that the Director is "responsible for any disciplinary actions or grievances that occur within his service." Id. at 14. The RD further found that, in the two years he has held the position, the Director "has never been involved in" disciplinary actions, grievances, negotiations, or management discussions regarding proposals or management's position with regard to labor relations issues. Id. at 21.

      The RD determined that the employee encumbering the disputed position provides administrative support to the entire staff, including the Director. RD's Decision at 14. The employee's duties with respect to the Director include preparing personnel action forms, such as resignations, promotions, temporary appointments, and performance evaluations. The employee's duties with respect to performance evaluations include typing the initial forms. The Director completes the forms himself and the Secretary does not see the completed evaluations until after the Director shares the results with the employee being rated and gives them to the Secretary for forwarding to the Human Resources Department.

      The RD determined that the Director has never discussed EEO complaints, union grievances, disciplinary actions, or negotiation proposals with the employee, nor has he discussed those issues with others in her presence. The RD also found that, in the four years she has held the position, the employee has "never even typed up disciplinary actions, responses to grievances or negotiation proposals" for either the Director or the former Director. Id. at 14. The RD further found that "there was no evidence" that the employee "accesses any confidential labor management information in the performance of her duties." Id.

      Citing United States Dep't of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Ariz., 37 FLRA 239, 244 (1990) (DOI, Yuma), the RD stated that an employee is confidential within the meaning of [ v60 p888 ] § 7103(a)(13) of the Statute if "there is evidence of a confidential working relationship between an employee and the employee's supervisor" and "the supervisor is significantly involved in labor-management relations." RD's Decision at 21.

      The RD found that there was insufficient evidence to show that the Director is significantly involved in labor-management relations. In this regard, the RD determined that, although the Director may play a role in processing grievances or disciplinary actions in the future, "his lack of doing so over a two year period indicates that he is not significantly involved" in labor-management relations. Id. at 21.

      The RD also determined that the employee does not act in a confidential relationship to the Director with regard to labor-management relations. In this connection, the RD found that the employee has never had occasion to be involved in any of the labor-management activities described above -- including disciplinary actions, grievances, negotiations, or management discussions regarding proposals or management's position with regard to labor relations issues -- and has never been privy to confidential labor-management information at a pre-decisional stage. In addition, the RD found that the employee's clerical tasks, as they relate to the processing of promotion, recruitment, and resignation actions, do not provide a basis for finding that the employee is a confidential employee within the meaning of the Statute. Further, with regard to performance appraisals, the RD determined that the employee is not privy to pre-decisional information related to the appraisals or the content of the appraisals before they are provided to the employees who are being rated.

      Based on his determinations, the RD concluded that the employee is not a confidential employee within the meaning of the Statute. Accordingly, the RD ordered that the employee be included in the nationwide unit of non-professional employees represented by the Union.

III.      Agency's Application for Review

      Citing Dep't of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644 (1980) (Oak Ridge), the Agency asserts that "[e]stablished law and/or policy requires reconsideration of this decision." Application for Review at 4. In this regard, the Agency argues that the RD erred in finding that the Director is not significantly involved in labor-management relations; that the employee does not act in a confidential relationship to the Director as it relates to labor-management relations; and that the employee is not a confidential employee within the meaning of the Statute.

      According to the Agency, the record "clearly demonstrates" that the Director "has duties in labor management relations" and that the employee "works in a confidential working relationship" with the Director. Id. The Agency acknowledges that the Director has not had to initiate discipline or respond to grievances in the two years he has held the position; however, the Agency argues that "it is his duty to take such actions . . . if needed." Id. at 5. The Agency also asserts that, if the Director were required to perform such duties, he would rely on the employee for assistance in doing so.

      The Agency further asserts that a Director who has not had occasion to issue disciplinary actions and respond to grievances "would be unable to assign work to his assistant to assist with such actions should the need arise, without creating a conflict of interest for the assistant." Id. at 5. In addition, the Agency argues that the RD's decision "creates a perverse incentive" for managers "to either initiate discipline or cause an employee to file a grievance," in order to establish that their secretaries/office assistants are confidential employees. Id.

IV.      Analysis and Conclusions

      An assertion that "[e]stablished law or policy warrants reconsideration" is a ground for challenging an RD's Decision and Order. 5 C.F.R. § 2422.31(c)(2). Here, although the Agency asserts that reconsideration of the RD's decision is warranted, it does not argue that reconsideration of established law or policy is warranted. To the contrary, the Agency relies on existing precedent, as set forth in Oak Ridge, to argue that the RD's decision was in error. As such, we construe the Agency's application as asserting that the RD "[f]ailed to apply established law[.]" 5 C.F.R. § 2422.32(c)(3)(i).

      As stated by the RD, 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. See, e.g., DOI, Yuma, 37 FLRA at 244. An employee is not confidential in the absence of either of these requirements. Id.

      Authority precedent supports the RD's finding that the Director is not significantly involved in labor-management relations. In this regard, the Authority has previously identified responsibilities that are aspects of the formulation or effectuation of management policies in [ v60 p889 ] labor relations. These responsibilities include advising management on or developing negotiating positions and proposals, preparing arbitration cases for hearing, and consulting with management regarding the handling of unfair labor practice (ULP) cases. See, e.g., United States Dep't of the Army, U.S. Army Aviation Ctr., Fort Rucker, Ala., 60 FLRA 771, 772 (2005); Dep't of Veterans Affairs, Reg'l Office, Waco, Tex., 50 FLRA 109, 111 (1995) (VA, Waco); Yuma, 37 FLRA at 240-41.

      As set forth by the RD, the Director is responsible for personnel matters, including hiring, performance appraisals, awards, disciplinary actions, promotions, and work assignments. [n4] As such, the record supports the Agency's assertion that the Director "has duties in labor management relations" insofar as he has responsibility for grievance processing and disciplinary actions. Application for Review at 4. However, the Agency also acknowledges that, in the two years he has held the position, the Director has not been involved in any disciplinary actions, grievances, negotiations, or management discussions regarding proposals or management's position with regard to labor relations issues.

      Based on the foregoing, the Director is not engaged in the types of responsibilities that the Authority has found are aspects of the formulation or effectuation of management policies in labor relations. Accordingly, consistent with Authority precedent, the Director is not significantly involved in formulating or effectuating management policies in the field of labor relations. See, e.g., United States Dep't of Health & Human Servs., U.S. Food & Drug Admin., Northeast & Mid-Atlantic Regions, 48 FLRA 1008, 1019 (1993) (FDA) (secretaries not confidential where their supervisors' involvement in personnel matters, such as employee appraisals, disciplinary actions, promotions, grievances, and commenting on matters involving contract negotiations, does not constitute significant involvement in the formulation or effectuation of labor-management policy); United States Dep't of Housing & Urban Dev., Headquarters, 41 FLRA 1226, 1234 (1991) (public affairs specialists not confidential where there is no evidence that their supervisor had been involved with any grievances, ULPs, or other labor-management relations issues).

      Moreover, the Agency's reliance on Oak Ridge is misplaced insofar as the present case is factually distinguishable. The division directors and branch chiefs in Oak Ridge had "broad general responsibilities in such areas as grievance processing, hiring, performance appraisals, awards, disciplinary actions, promotions, and training." Oak Ridge, 4 FLRA at 650. In addition, they were expected to participate "in the formulation of management bargaining proposals and the analysis of union proposals[,]" id., activities that the Authority has "generally found to constitute the effectuation or formulation of management policies." VA, Waco, 50 FLRA at 111.

      Here, the Director is involved in personnel matters. However, his involvement in labor-management relations is not significant. In this regard, unlike the managers in Oak Ridge, the Director has never been involved in initiating disciplinary action, processing grievances, or any negotiations with the Union or any management discussions regarding proposals or management's positions related to negotiations. See RD's Decision at 14. Nor has the Agency established that the Director is otherwise engaged in the types of activities that the Authority has previously found to constitute the effectuation or formulation of management policies. See, e.g., VA, Waco, 50 FLRA at 111 (manager involved in personnel matters not significantly involved in labor-management relations where case is factually distinguishable from Oak Ridge).

      As set forth above, the Director is not significantly involved in labor-management relations. As such, the employee is not a confidential employee within the meaning of § 7103(a)(13) of the Statute. [n5] 

V.      Order

      The application for review is denied.



Footnote # 1 for 60 FLRA No. 163 - Authority's Decision

   The Union filed an opposition and subsequently filed a motion to withdraw its opposition. We grant the Union's motion and have not considered its opposition.


Footnote # 2 for 60 FLRA No. 163 - Authority's Decision

   The RD also determined the bargaining unit status of three other employees. Those determinations are not challenged in the application for review and will not be addressed further.


Footnote # 3 for 60 FLRA No. 163 - Authority's Decision

   5 U.S.C. § 7103(a)(13