United States Air Force, 82ND Training Wing , Sheppard Air Force Base, Wichita Falls, Texas (Activity) and American Federation of Government Employees, Local 779, AFL-CIO (Petitioner/Labor Organization)

[ v61 p443 ]

61 FLRA No. 84

UNITED STATES AIR FORCE
82ND TRAINING WING
SHEPPARD AIR FORCE BASE
WICHITA FALLS, TEXAS
(Activity)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 779, AFL-CIO
(Petitioner/Labor Organization)

DA-RP-05-0014

_____

ORDER
DENYING APPLICATION FOR REVIEW

January 19, 2006

_____

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 Activity under § 2422.31 of the Authority's Regulations. The Union filed an opposition to the Activity's application. [n1] 

      The Activity seeks review 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 Activity's application.

II.     Background and RD's Decision

      The Union filed a petition seeking to clarify its existing unit to include one employee encumbering the position of Principal Office Assistant, GS-0318-05 (Principal Office Assistant). Before the RD, the Activity contended that the position should be excluded from the bargaining unit because the Principal Office Assistant is a confidential employee within the meaning of § 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute). [n2] 

      The Principal Office Assistant position is in the Activity's Office of Public Affairs. The Office of Public Affairs is responsible for the public affairs programs for the Activity, including internal information, media relations and community relations. See RD's Decision at 3. The employee's direct supervisor is the Director of the Office of Public Affairs (Director). See id.

      At the time of the hearing in this case, the Director had been in his job for approximately four weeks. See id. The Director is the spokesperson for the Activity and manages public affairs programs for the Activity. At the time of the hearing, the employee had been in her position for approximately one year. See id. The employee serves as the office assistant in the Office of Public Affairs, performing various clerical and administrative duties. The employee's office is adjacent to the Director's office. See id.

      With regard to labor-management relations matters, the RD found that the Labor Relations Officer had not asked the Director to become involved in formulating or effectuating management policies. Id. The RD also found that the Director will discuss inquiries from the media on "management issue[s] on the base with the Deputy Wing Commander, the Wing Commander, and perhaps with the Labor Relations Officer." See id. The RD added that "[t]he participants in the discussion will then formulate an approach for dealing with the matter." Id.

      Also with regard to labor-management relations matters, the RD found that the employee has not overheard the Director discuss "sensitive or confidential matters with the Vice Commander, the Commander, or other management officials in his office." Id. at 5. The RD also found that the Director has not discussed with the employee matters relating to contract proposals, grievances, or personnel policies. See id. The RD added that the employee has not typed any performance appraisals, disciplinary actions, performance awards or grievance responses. See id.

      The RD further found that the employee has never attended any meetings where labor-management relations matters were discussed. In addition, the RD found the employee "has not seen any mail regarding unfair labor practices, grievances, disciplinary actions, incidents involving sexual assaults or sexual harassment, [ v61 p444 ] EEO complaints, A-76 studies concerning contracting out or privatization, issues concerning Base Realignment and Closure (BRAC), or the proposed National Security Personnel System (NSPS)." Id.

      Applying Authority precedent concerning confidential employees under § 7103(a)(13) of the Statute, the RD concluded that the evidence did not support the conclusion that the Director is significantly involved in labor-management relations matters. In this connection, the RD found that the "record does not reflect that [the Director] has had any involvement with grievances, negotiations or unfair labor practice charges" since he has been in his job. Id. at 6. The RD also stated that "[a]lthough there was testimony at the hearing that [the Director] might have some involvement in these areas in the future, the determination as to whether an individual is significantly involved in labor-management relations is based on the duties of the individual at the time." Id. at 6. In this regard, the RD found that "there is no evidence that [the Director] has been informed that he will be performing these duties; that the nature of his job clearly requires these duties; or that [he] was not performing these duties solely because of lack of experience on the job." Id. at 6-7. Thus, the RD found that the Director is not "an individual who formulate[s] or effectuate[s] management policies in the field of labor-management relations." Id at 7. Consequently, the RD concluded that the Director is not significantly involved in labor-management relations. See id.

      Furthermore, the RD concluded that the evidence did not support the conclusion that the employee who encumbers the Principal Office Assistant position has a confidential relationship with the Director. In this connection, the RD found that there was no evidence that the Director "ever discussed any matters with [the employee] concerning grievances, negotiations, unfair labor practice charges, or personnel matters, including disciplinary actions." Id. at 8. The RD also found that there was no evidence that the employee had seen anything in the incoming mail or any e-mail messages concerning labor-management relations matters or that she had typed any documents related to labor-management relations matters. See id.

      The RD further found that "there is no evidence that [the employee] has overheard any discussions between the [Director] . . . and other management officials concerning labor relations matters or that she has attended any meetings where matters concerning labor relations were discussed." Id. In addition, the RD found that the employee never "obtained advance information regarding management's position with respect to labor relations matters." Id. at 8

      Based on his determinations, the RD concluded that the employee who encumbers the Principal Office Assistant position is not a confidential employee within the meaning of § 7103(a)(13) of the Statute. Accordingly, the RD ordered that the employee be included in the unit of employees represented by the Union.

III.      Positions of the Parties     

A.      Application for Review

      The Activity asserts that, "by law and based on the facts in the case[,]" the employee is a confidential employee and should be excluded from the bargaining unit. Application for Review at 1-2.

      The Activity contends that the RD erred in not finding that the Director is significantly involved in labor-management relations. The Activity argues that the RD ignored the fact the Director recently started his job and has not had the opportunity to formulate and effectuate labor-management relations policies. See id. at  17. The Activity argues that, contrary to the RD's findings, the Director is engaged in the formulation and effectuation of labor-management relations with respect to A-76 studies and the BRAC. See id. at 16-17. The Activity notes testimony that the "[D]irector will be a key member of the NSPS implementation team since he will be responsible for the public communications of the information that is presented to the Sheppard AFB work force." See id. at 19. The Activity also notes testimony that the Director supervises employees who could file unfair labor practice charges (ULPs), EEO complaints, and grievances. See id. at 17.

      Furthermore, the Activity contends that the RD erred in not finding that there is a confidential working relationship between the employee and the Director. See id. at 19. The Activity argues that, contrary to the RD's findings, the employee routinely overhears sensitive labor-management relations conversations. See id. at 15-16. In this regard, the RD noted testimony that the employee overhears conversations between the Director and other managers regarding labor-management relation matters, including ULPs, A-76 studies concerning contracting out or privatization, issues concerning BRAC, or the proposed NSPS. See id. at 14, 18, 20-21. The Activity also argues that the RD ignored the fact that, since the Director recently started his job, he has not had the opportunity to have a confidential working relationship with the employee. See id. at 17, 19-20. The RD noted the Director's testimony that in the future he "could" require the employee to type contract proposals, performance appraisals, disciplinary actions, performance awards or grievance responses. See id. at 7. [ v61 p445 ]

B.      Union's Opposition

      The Union maintains that the RD applied established Authority precedent. The Union argues that National Credit Union Administration, 61 FLRA 349 (2005) is factually distinguishable as it involves an Attorney-Advisor whose duties involved more than mere consultation on human resources matters.

      As to the Activity's contention that the RD's decision contradicts the record evidence, the Union asserts that review is not warranted because the Activity has failed to establish that the RD committed a clear and prejudicial error concerning a substantial fact.

IV.     Analysis and Conclusions

      In its application for review, the Activity asserts that it appeals the RD's decision "since by law and based on the facts in the case [the employee] is a confidential employee and should be excluded from the bargaining unit." Application for Review at 1-2. We construe the application as asserting that the RD has failed to apply established law and has committed a clear and prejudicial error concerning a substantial factual matter. [n3]  5 C.F.R. § 2422.31(c)(3)(i) and (ii).

      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. United States Dep't of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Ariz., 37 FLRA 239, 244 (1990) (Yuma Projects Office). An employee is not confidential in the absence of either of these requirements. Id.

      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 the Army, United States 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); Yuma Projects Office, 37 FLRA at 240-41.

      The Authority has held that decisions regarding unit determinations must reflect the conditions of employment that existed at the time of the hearing rather than what may exist in the future unless there are definite and imminent changes planned by the agency. See United States Dep't of Agriculture, Food Safety and Inspection Service, 61 FLRA 397, 400-01 (2005) (Food Safety and Inspection Service); Def. Logistics Agency, Def. Contract Mgmt. Command, Def. Contract Mgmt. Dist., N. Cent. Def. Plant Representative Office-Thiokol, Brigham City, Utah, 41 FLRA 316, 327 (1991) (DLA). See also Yuma Projects Office, 37 FLRA at 239 (in cases involving a determination as to the bargaining status of an employee who has recently encumbered a position, Authority will consider duties not yet performed by that employee only where the employee has been informed that those duties will be assigned in the future, the nature of the job requires such duties and the employee is not performing the duties at the time of the hearing solely because of lack of experience in the job).

      The record supports the RD's findings that the Director does not formulate or effectuate management policies in labor-management relations. The Director testified that, since starting his job, he has not been involved with any grievances, ULPs, or other labor-management relations matters. See Transcript (Tr.) at 120. The Activity also acknowledges that, during his "short tenure," the Director has not been involved in any ULPs, appraisals, disciplinary actions, promotions, or grievances. See Application for Review at 19-20.

      The Activity argues that the RD ignored the fact the Director recently started his job and that in the future he could formulate and effectuate labor-management relations policies. See id. at 17. As noted previously, the Authority has acknowledged that changes to conditions of employment in the future may be considered in assessing unit eligibility under certain circumstances. See, e.g., DLA, 41 FLRA at 327 (may consider "definite and imminent changes planned by the agency[]");Yuma Projects Office, 37 FLRA at 245 (may consider future duties when, among other things, the nature of the job clearly requires the duties and employees are not performing the duties at the time of the hearing solely because of lack of experience). We note that, to date, the Authority has had occasion to apply DLA and Yuma [ v61 p446 ] Projects Office only to employees who have been newly assigned to a position. Nevertheless, we find no reason why the Authority's existing standards set out in DLA and Yuma Projects Office, which permit the RD to consider future duties of an employee in certain circumstances, should not also be applied to supervisors who have been newly assigned to a position, like the Director in this case, when those duties are relevant to determining an employee's unit status. In this regard, we note that the Activity does not challenge the relevancy of those standards to the Director; to the contrary, it claims that the RD erred by failing to apply those standards to the Director.

      In assessing the unit eligibility of the employee based on whether the Director is significantly involved in labor-management relations, the RD did take into account the responsibilities with respect to labor-management relations that the Activity alleges that the Director will have in the future. In this regard, the RD found that "there is no evidence that [the Director] has been informed that he will be performing these duties; that the nature of his job clearly requires these duties; or that [he] was not performing these duties solely because of lack of experience on the job." RD's Decision at 6-7. In addition, the Director testified that he had not been informed that in the future he would be involved with any grievances, ULPs, or other labor-management relations matters. See Tr. at  52. Thus, the record evidence supports the conclusion that the Director's significant involvement in the formulation or effectuation of labor-management relations policies is not definite and imminent, under DLA, or that the Director is not significantly involve in such matters solely because of lack of experience, under Yuma Projects Office. See Food Safety and Inspection Service, 61 FLRA at 401. Therefore, the Activity's contention that the Director could perform certain duties in the future does not demonstrate that the RD erred as a matter of law or fact in reaching his ultimate determination.

      We note that, as the spokesperson for the Activity, the Director occasionally discusses with the commander and other mangers, including the Labor Relations Officer, the actions the Activity should take to respond to inquiries from the media on "management issue[s]" on the base. See RD's Decision at 3. However, these duties and responsibilities, alone, are not sufficient to establish that the Director in this case is significantly involved in the formulation or effectuation of management policies in labor-management relations. See United States Dep't of Health & Human Servs., United States Food & Drug Admin., Northeast & Mid-Atlantic Regions, 48 FLRA 1008, 1019 (1993) (FDA, Northeast & Mid-Atlantic Regions) (supervisor's commenting on matters involving contract negotiations did not constitute significant involvement in the formulation or effectuation of labor-management policy).

      Because the record evidence supports the RD's findings that the Director does not formulate or effectuate management policies in labor-management relations, we conclude that the Activity has not demonstrated that the RD committed clear prejudicial errors concerning substantial factual matters in this regard. Accordingly, consistent with Authority precedent, the Director is not significantly involved in labor-management relations. See United States Dep't of Veterans Affairs, 60 FLRA 887, 889 (2005) (Dep't of Veterans Affairs) (employee not confidential where the employee's supervisor 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); FDA, Northeast & Mid-Atlantic Regions, 48 FLRA at 1019 (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).  [n4] 

      Because the RD's conclusion that the Director is not significantly involved in labor-management relations is consistent with Authority precedent, we conclude that the Activity has not demonstrated that the RD failed to apply established law. Accordingly, based on the record evidence and consistent with Authority precedent, we conclude that the Director is not significantly involved in labor-management relations. As such, we conclude that the employee is not a confidential employee within the meaning of § 7103(a)(13) of the Statute, and, should, therefore, be included in the existing bargaining unit.

      Therefore, we find that the Activity has not established grounds warranting review of the RD's decision under § 2422.31(c)(3)(i) or (ii) of the Authority's Regulations.

V.     Order

      The application for review is denied.



Footnote # 1 for 61 FLRA No. 84 - Authority's Decision

   As the Union's opposition appeared to be untimely, the Authority issued an Order to Show Cause why the Authority should consider the opposition. The Union filed a timely response to the Order. The Union's response to the Order demonstrates that the opposition was timely filed. Accordingly, we have considered the opposition in resolving the application for review. Moreover, the Activity filed a response to the Authority's Order. As the Order was not directed to the Activity, we have not considered the Activity's response to the Order.


Footnote # 2 for 61 FLRA No. 84 - Authority's Decision

   5 U.S.C. § 7103(a)(13) defines a "confidential employee" as "an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations[.]"


Footnote # 3 for 61 FLRA No. 84 - Authority's Decision

   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 w