U.S. Department of Commerce, Maritime Administration, U.S. Merchant Marine Academy (Activity/Petitioner) and American Federation of Government Employees, Local 2116, AFL-CIO (Labor Organization)  

 1 FLRA No. 61
 
 U.S. DEPARTMENT OF COMMERCE,
 MARITIME ADMINISTRATION,
 U.S. MERCHANT MARINE ACADEMY
 Activity/Petitioner
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2116, AFL-CIO
 Labor Organization
 
                                            Assistant Secretary
                                            Case No. 30-08598(CU)
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    UPON A PETITION FOR CLARIFICATION OF UNIT DULY FILED UNDER SECTION 6
 OF EXECUTIVE ORDER 11491, AS AMENDED, A HEARING WAS HELD BEFORE HEARING
 OFFICER ELEANORE S.  GOLDBERG ON JANUARY 25, 1979.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, IN A
 MATTER SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER
 SECTION 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH
 TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE
 AUTHORITY'S TRANSITION RULES AND REGULATIONS.  THE AUTHORITY CONTINUES
 TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT.  1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE HEARING OFFICER MADE AT THE HEARING AND
 FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY FURTHER FINDS:
 
    THE ACTIVITY (THE ACADEMY) FILED A PETITION FOR CLARIFICATION OF UNIT
 TO DETERMINE WHETHER THE POSITION OF SECRETARY TO THE ASSISTANT
 SUPERINTENDENT OF ACADEMIC AFFAIRS (ALSO KNOWN AS THE ACADEMIC DEAN)
 SHOULD BE EXCLUDED FROM A UNIT OF NONPROFESSIONAL CIVILIAN EMPLOYEES
 REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 2116, AFL-CIO (AFGE LOCAL 2116).  /1/ THE BASIS ASSERTED FOR THE
 EXCLUSION IS THAT THE INCUMBENT SERVES IN A CONFIDENTIAL CAPACITY TO AN
 OFFICIAL DIRECTLY INVOLVED IN THE FORMULATION AND EFFECTUATION OF LABOR
 RELATIONS POLICY.
 
    THE MISSION OF THE ACADEMY IS TO TRAIN INDIVIDUALS TO SERVE AS
 OFFICERS IN THE UNITED STATES MERCHANT MARINE.  THE ACADEMIC DEAN IS
 RESPONSIBLE TO THE SUPERINTENDENT OF THE ACADEMY FOR ALL MATTERS RELATED
 TO THE ACADEMY'S CURRICULUM.  IN THE TEN ACADEMIC DEPARTMENTS UNDER THE
 SUPERVISION OF THE ACADEMIC DEAN, THERE ARE APPROXIMATELY 32 SUPPORT
 EMPLOYEES IN THE NONPROFESSIONAL UNIT REPRESENTED BY AFGE LOCAL 2116,
 AND APPROXIMATELY 78 FACULTY MEMBERS IN A UNIT OF PROFESSIONALS
 REPRESENTED BY AFGE LOCAL 3732.  THE DEAN HAS BROAD GENERAL
 RESPONSIBILITY FOR BOTH PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN
 SUCH AREAS AS GRIEVANCE HANDLING, PERFORMANCE APPRAISALS, AWARDS,
 DISCIPLINARY ACTIONS, PROMOTIONS AND TRAINING.  THE DEAN ALSO IS A
 MEMBER OF THE ACADEMY'S POLICY BOARD, CONSISTING OF THE SUPERINTENDENT
 AND OTHER SENIOR OFFICIALS, WHICH MEETS WEEKLY TO DISCUSS MATTERS OF
 INTEREST TO MANAGEMENT, INCLUDING PERSONNEL PRACTICES AND GENERAL LABOR
 RELATIONS POLICY.  FURTHER, THE RECORD REVEALS THAT HE HAS BEEN DIRECTLY
 RESPONSIBLE FOR CONTRACT NEGOTIATIONS AND VARIOUS GRIEVANCE AND
 DISCIPLINARY ACTIONS RELATING TO THE PROFESSIONAL UNIT.
 
    THE RESPONSIBILITIES OF THE SECRETARY TO THE ACADEMIC DEAN INCLUDE
 REVIEWING ALL INCOMING MAIL, TYPING AND PREPARING ALL CORRESPONDENCE AND
 DOCUMENTS CONCERNING CONTRACT NEGOTIATIONS, BUDGET MATTERS, LABOR
 RELATIONS POLICY AND PERSONNEL MATTERS WITH WHICH THE DEAN IS INVOLVED,
 AND MONITORING ACCESS TO LOCKED FILES CONTAINING SENSITIVE INFORMATION
 RELATED TO THESE SUBJECTS.
 
    UNDER THESE CIRCUMSTANCES, IT IS CONCLUDED THAT THE SECRETARY TO THE
 ACADEMIC DEAN WORKS WITH AND HAS REGULAR ACCESS TO CONFIDENTIAL LABOR
 RELATIONS MATERIALS AND ACTS IN A CONFIDENTIAL CAPACITY TO AN OFFICIAL
 INVOLVED IN THE FORMULATION AND EFFECTUATION OF THE ACTIVITY'S LABOR
 RELATIONS POLICIES.  /2/ ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE
 INCUMBENT BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT ON THE BASIS
 OF CONFIDENTIAL STATUS.  /3/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
 WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 2116, AFL-CIO, ON NOVEMBER 16, 1976, BE, AND
 IT HEREBY IS, CLARIFIED BY EXCLUDING FROM SAID UNIT THE SECRETARY TO THE
 ASSISTANT SUPERINTENDENT FOR ACADEMIC AFFAIRS.
 
    ISSUED, WASHINGTON, D.C., JUNE 14, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ AFGE LOCAL 2116 HOLDS EXCLUSIVE RECOGNITION FOR ALL EMPLOYEES AT
 THE U.S. MERCHANT MARINE ACADEMY EXCEPT THE FOLLOWING:
 
    1.  PROFESSIONAL EMPLOYEES INCLUDING MEMBERS OF THE FACULTY,
 LIBRARIANS AND STAFF NURSES.
 
    2.  EMPLOYEES OCCUPYING MANAGEMENT AND STAFF POSITIONS INCLUDING THE
 SUPERINTENDENT;  THE
 
    SPECIAL ASSISTANT TO THE SUPERINTENDENT;  THE EXECUTIVE OFFICER AND
 ASSISTANT
 
    SUPERINTENDENT;  THE ADMINISTRATIVE OFFICER;  THE DEAN;  THE
 ASSISTANT DEAN;  THE ALUMNI
 
    OFFICER;  THE PUBLIC INFORMATION OFFICER;  THE REGISTRAR-EDUCATIONAL
 SERVICES OFFICER;  THE
 
    ASSISTANT REGISTRAR;  DEPARTMENT HEADS, AND ASSISTANT DEPARTMENT
 HEADS.
 
    /2/ ALTHOUGH CONFIDENTIAL EMPLOYEES ARE NOT SPECIFICALLY BARRED BY
 SECTION 10(B) OF THE ORDER FROM BEING INCLUDED WITH OTHER EMPLOYEES IN
 AN APPROPRIATE UNIT, THE ASSISTANT SECRETARY HAS DETERMINED THAT IT
 WOULD BEST EFFECTUATE THE POLICIES OF THE ORDER TO EXCLUDE FROM
 BARGAINING UNITS EMPLOYEES WHO ASSIST AND ACT IN A CONFIDENTIAL CAPACITY
 TO PERSONS WHO FORMULATE AND EFFECTUATE MANAGEMENT LABOR RELATIONS
 POLICY.  VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH BATTALION, 111TH
 ARTILLERY, 1 A/SLMR 332, 335, A/SLMR NO. 69(1971).
 
    /3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR THE APPLICATION OR RELATED PROVISIONS IN THE NEW STATUTE OR
 THE RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD
 ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.