United States, Environmental Protection Agency (Agency) and American Federation of Government Employees, AFL-CIO (Petitioner/Union)

[ v61 p417 ]

61 FLRA No. 77

UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
(Agency)

and

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

CH-RP-05-0007

_____

ORDER
DENYING APPLICATION FOR REVIEW

December 14, 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 of the Regional Director's (RD) decision that one position should be excluded from the bargaining unit. The AFGE, AFL-CIO (Petitioner/Union) filed an application under § 2422.31(c) of the Authority's Regulations, and the Agency did not file an opposition.

      The RD found that a position should be excluded from the bargaining unit under § 7112(b)(3) of the Federal Service Labor-Management Relations Statute (the Statute) because the employee is "engaged in personnel work in other than a purely clerical capacity."

      For the reasons that follow, we deny the application for review.

II.      Background and RD's Decision

      The Union filed a petition seeking to clarify the bargaining unit status of an Equal Employment Specialist, GS-280-13 position in the Agency's Office of Civil Rights, Region 5, Chicago, Illinois. Shortly after filing the petition, and after submitting a written position statement, the Union received notification from the Chicago RD that "a hearing on the issues is warranted in this case." Union's Attachment 6; Notice of Representation Hearing at 1. (April 20, 2005).

      Following this notice the RD's investigator took affidavits from the specialist and his supervisor. Thereafter, [ v61 p418 ] the investigator notified the parties that "I have taken affidavits from [the specialist] and [his supervisor] in lieu of a hearing in this matter." Union's Attachment 8, Letter of May 20, 2005 from Investigator, Chicago Region. Based upon this notice, the Union submitted a letter raising concerns over the legality of proceeding without a hearing and stated "[g]iven [the Union's] concerns and the fact that the parties have not waived their right to a hearing in this matter, [the Union] is requesting that you honor our rights in this matter and hold a hearing in this case." Union's Attachment 9, Union Letter to Chicago Regional Director (June 6, 2005) .

      In response to this request by the Union, the RD notified the parties that after conducting an investigation into this matter, in which the RD obtained the affidavits of the specialist and his supervisor from the investigator, along with an "interview . . . [and] supporting documentation[,]" there appeared to be no issues of material fact in dispute. Union's Attachment 10, RD's June 8, 2005, Letter to the Parties at 1. Further, the RD found that based on the evidence before him "there are sufficient facts not in dispute to form the basis for a decision in this matter. Under these circumstances, there [is] no need to hold a hearing." Id. at 1, (citing Federal Mediation and Conciliation Service, 52 FLRA 1509, 1516 (1997) (FMCS)). Nonetheless, the RD informed the parties that they could submit arguments that the record evidence was insufficient to make a determination, and otherwise brief the case on the merits. Id. at 2.

      The Union replied by brief wherein it argued that the specialist should be included in the bargaining unit. Union's Brief of June 17, 2005. The Union did not argue that there was insufficient evidence in the record for the RD to make a determination, and did not reiterate its argument that it was legally entitled to a hearing. The Agency submitted its brief which set forth its basis for claiming that the specialist was a "personnelist" and thereby excluded from the bargaining unit under 7112(b)(3) of the Statute, after which the RD notified the parties that the notice of hearing "is withdrawn." Agency's June 23, 2005 Brief at 2; Withdrawal of Notice of Representation Hearing, June 29, 2005. Thereafter, the RD issued his decision.

      The RD found that the issue presented by the Union was:

Whether the Equal Employment Specialist, GS-280-13, position . . . is engaged in personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3) of the Statute.

Decision at 3.

      The RD determined, based upon the affidavits and accompanying documents, that the specialist had three primary duties: serving as the Local Reasonable Accommodation Coordinator (LORAC); serving as the Diversity Action Plan Coordinator (DAP); and performing alternative dispute resolution functions. Decision at 2. While engaged in LORAC functions, the specialist would conduct investigations into employee claims of disability and requests for reasonable accommodations and make disability determinations. Id. As noted by the RD, the specialist is solely responsible for these reasonable accommodation determinations even though they are not binding on an employee's supervisor. Id.

      Moreover, upon determining that an employee should be accommodated, the specialist informs Region 5's Human Resources Branch (HRB) of the determination and coordinates any necessary procurement with the HRB. In so doing, the specialist is ultimately responsible for handling permanent disability issues, including the procurement and installment of necessary equipment. Id. at 2-3.

      The specialist is also responsible for training managers and supervisors concerning "all aspects of the law governing reasonable accommodation including negotiated agreements between the Agency and the Union." Id. at 3. In this role, he has trained supervisors and managers on identifying potential employee disabilities and on how to initially counsel employees on their rights under disability law. Id.

      However, with respect to his role as a DAP coordinator, the RD determined that the specialist's role was of a "limited nature." Id. Finally, as to the specialist's remaining ADR duty, the RD noted that to date the specialist has handled two ADR activities that involved reasonable accommodation for a documented disability. Id. The RD also noted that in one settlement action, a Region 5 attorney contacted the specialist for advice, which the attorney used to settle a grievance. Id.

      The RD noted that a "bargaining unit may not include an employee who is `engaged in personnel work in other than a purely clerical capacity.'" Id. at 4. The RD determined that the specialist was engaged in personnel work based on his duties, which encompass resolving "employee requests for reasonable accommodation, diversity action plans and ADR of employee complaints and grievances[.]" Id.

      Moreover, the RD determined that the specialist's work was more than routine and not purely clerical. In this respect, the RD found that:

As the LORAC, [the specialist] is responsible for investigating and rendering disability determinations [ v61 p419 ] in connection with employee requests for reasonable accommodation. [The specialist] counsels and advises employees and managers on reasonable accommodation issues and requirements. In addition, [the specialist] is responsible for training managers and supervisors on the law of reasonable accommodation. In carrying out these non-routine duties, [the specialist] exercise[d] independent judgment and discretion.

Decision at 4.

      Accordingly, the RD found that the specialist was engaged in personnel work in other than a purely clerical capacity within the meaning of § 7112(b)(3) of the Statute, and excluded the specialist's position from the Union's bargaining unit. Decision at 4.

III.      Positions of the Parties

A.      Union

      The Union argues that there is an absence of Authority precedent "regarding [an] [RD's] finding that a hearing is warranted and then refusing to hold a hearing[,]" and that the RD "committed a prejudicial procedural error when he refused to hold a hearing after issuing a notice of hearing." Application for Review at 4, 7.

      With respect to its first contention, the Union claims that review is warranted because "there is no Authority precedent governing the factual scenario presented by this case." Id. at 5. It states that cases such as United States Dep't of Homeland Security, Border and Trans. Security Directorate, Trans. Security Agency, 59 FLRA 423 (2003); FMCS, 52 FLRA at 1516; National Park Serv., Santa Monica Mtns. Recreation Area, Agoura Hills, Ca., 50 FLRA 164 (1995); United States Dept. of Interior, Indian Health Serv., Gallup Indian Medical Ctr., Gallup, NM, 48 FLRA 890 (1993); United States Dep't of Agriculture, Forest Serv., Apache-Sitgreaves Nat'l Forest, Springerville, Az., 47 FLRA 945 (1993); Federal Deposit Insurance Corp., Wash. D.C., 38 FLRA 952 (1990), dealt only with an RD's discretion initially to determine whether to hold a hearing. In contrast, it argues that this case is distinguishable because the RD originally elected to have a hearing and then reversed his own decision. As such, the Union argues that the Authority should grant its application for review.

      Turning to its remaining contention, the Union argues that the RD's "refusal to hold a hearing after issuing a notice of hearing constitutes a prejudicial procedural error." Application for Review at 7. It argues that the RD's refusal to allow a hearing denied it the right to "appear in person or by representative[,]" the right to examine and cross-examine witnesses, and the right to introduce into the record relevant evidence. Id. (citing 5 C.F.R. § 2422.20.) The Union contends that "[s]ince the [RD] did not hold a hearing, AFGE was deprived of its right under § 2422.20 to examine the witnesses regarding their duties, and the right to question them about the documents the Authority['s] agent placed in the record." Id. at 8. The Union also argues that the release of affidavits during the course of the RD's investigation "was also [a] procedural error." Id. at 8 n.3.

      In conclusion, the Union requests that the Authority grant its application for review and remand this matter to a different region because the RD has already "pre-judged this matter[.]" Id. at 9.

B.      Agency

      The Agency did not file an opposition.

IV.      Analysis and Conclusions

      Under § 2422.31(c) of the Authority's Regulations, the Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds: (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; or (iii) Committed a clear and prejudicial error concerning a substantial factual matter.

A.      There is No Absence of Precedent

      The Union alleges an absence of precedent because, although the Authority has precedent addressing the discretion of a regional director to initially decide whether a hearing in a representation proceeding is necessary, the Authority has no precedent addressing a regional director's discretion to decide that a hearing is no longer necessary after having initially determined that such a hearing would be held.

      We find that the Union has not established that there is an absence of precedent regarding how the RD's exercise of discretion here to cancel the hearing should be evaluated. In that regard, the Authority has held that its precedent does not have to address the same "specific type" of matter at issue in the pending case for there to be "sufficient relevant Authority precedent that offers [ v61 p420 ] guidance with respect to how the [matter at issue in the pending case] should be treated." AFGE, Local 3529, 57 FLRA 633, 636 (2001).

      As acknowledged by the Union, Authority precedent establishes that RDs have broad discretion to determine initially whether a hearing is necessary. Application for Review at 5-6. The Union does not explain why, or otherwise establish, that there is a difference between the exercise of a regional director's discretion under the Authority's Regulations to determine initially that a hearing is necessary to help resolve the proceedings, and the exercise of a regional director's discretion to determine during the investigatory process that a hearing is not necessary to resolve the proceedings. Consequently, we find that there is "sufficient Authority precedent that offers guidance" regarding the RD's exercise of his discretion, under § 2422.30(a) and (b) of the Authority's Regulations to "make such investigation of the petition and any other matter as the Regional Director deems necessary[,]" and to hold a hearing where "a material issue of fact exists[.]"

B.      The RD Did Not Commit a Prejudicial Procedural Error

      The Union does not argue that specific facts relied upon by the RD are in dispute. Rather, it contends that once the RD determined a hearing was warranted, the RD was without discretion to resolve this matter without proceeding to a hearing. For the following reasons, we disagree.

      As noted above, under § 2422.30 of the Authority's Regulations, the determination of how to investigate a petition is within the RD's discretion. See 5 C.F.R.§ 2422.30(a). In this respect, the Authority's Regulations require a hearing only where "a material issue of fact exists[.]" Id. § 2422.30(b). This discretion is further referenced in § 2422.30(c) which states an RD will resolve a matter in dispute "[a]fter investigation and/or hearing[.]" Id. (emphasis added). Under 5 C.F.R. § 2422.30(a), an RD also has discretion to "make such investigation of the petition . . . as the Regional Director deems necessary."

      Further, an RD is required under the Authority's Regulations to conduct a hearing only where "a material issue of fact exists[,]" or "there is reasonable cause to believe a question exists regarding unit appropriateness," which is not before us. 5 C.F.R. § 2422.30(b); United States Dep't of the Army, United States Army Aviation Ctr., Fort Rucker, Ala., 60 FLRA 771, 773 (2005) (Fort Rucker) (Absent a question involving an issue of material fact, an RD is not required to hold a hearing.) Here, while the RD originally notified the parties that a hearing was warranted, after beginning the investigation the RD found that "there are sufficient facts not in dispute to form the basis for a decision in this matter." Union's Attachment 10, RD's June 8, 2005, Letter to the Parties at 1 . The RD arrived at this conclusion "after investigation," and the Regulations simply require the RD to make such investigation as the RD "deems necessary," which the RD did in this matter. 5 C.F.R. § 2422.30(a). Consequently, the Union has not established that the RD's failure to hold a hearing constitutes a prejudicial procedural error under 5 C.F.R. § 2422.32(c)(ii). See, e.g., Fort Rucker, 60 FLRA at 773.

      The Union also argues, without explanation, that the RD commit