37:1371(112)CU - - Labor, Office of the Solicitor, Arlington Field Office and AFGE Local 12 - - 1990 FLRAdec RP - - v37 p1371
[ v37 p1371 ]
The decision of the Authority follows:
37 FLRA No. 112
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF LABOR
OFFICE OF THE SOLICITOR
ARLINGTON FIELD OFFICE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(34 FLRA 127 (1989))
October 30, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on the Activity's application for review of the Regional Director's Decision and Order on a petition for clarification of unit. The Authority granted the Activity's application in U.S. Department of Labor, Office of the Solicitor, Arlington Field Office, 34 FLRA 127 (1989) (Arlington Field Office).
The Activity's application sought review of the Regional Director's decision concerning 10 General Attorney positions in the Solicitor's Arlington Field Office. The Regional Director found that the General Attorneys should be included in the bargaining unit represented by the American Federation of Government Employees, AFL-CIO, Local 12 (Union) because they are not confidential employees within the meaning of section 7103(a)(13) or employees engaged in personnel work under section 7112(b)(3) of the Federal Service Labor-Management Relations Statute (the Statute).
In granting the Activity's application for review, the Authority asked the parties to submit briefs on: (1) whether the General Attorneys' role, or potential involvement, in internal labor relations and personnel work is of such a nature as to create an inherent conflict of interest between the General Attorneys' job duties and their union affiliation; and (2) whether the frequency or the amount of such work is a controlling factor in determining if the General Attorneys are confidential employees or perform personnel work within the meaning of the Statute. Pursuant to the Authority's request, the Activity and the Union filed briefs. The Department of Justice requested and was granted permission to file an amicus curiae brief.
For the following reasons, we find that the General Attorneys are confidential employees, within the meaning of section 7103(a)(13) of the Statute, and may not be included in the bargaining unit represented by the Union.
II. Background and Regional Director's Decision
The Union currently represents a unit of all eligible Department of Labor employees in the Washington, D.C. metropolitan area, including field office employees. The Union seeks to clarify the unit by including 11 nonsupervisory General Attorneys located in the Solicitor's Arlington Field Office. The General Attorneys participate in litigation arising under a variety of statutes including the Black Lung Benefits Act, the Fair Labor Standards Act, the Service Contract Act, and the Mine Safety and Health Act. Some of the General Attorneys also participate, as representatives of management, in internal employment and labor relations cases before arbitrators, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission.
The Regional Director concluded that the bargaining unit should be clarified to include 10 of the 11 General Attorney positions in the Office of the Solicitor's Arlington Field Office. The Regional Director found that the General Attorneys were not confidential employees under section 7112(b)(2) or employees engaged in personnel work under section 7112(b)(3) of the Statute, citing Equal Employment Opportunity Commission, 9 FLRA 973, 976 (1982) (EEOC). The Regional Director determined that the General Attorneys' "involvement in internal labor relations cases, when compared to their overall work load, [had] been de minimus [sic] and insufficient to exclude them from the existing bargaining unit." Regional Director's Decision at 5. In this regard, the Regional Director found that the evidence established that the General Attorneys' participation in internal labor relations cases was sporadic and was not a consistent and routine aspect of their overall job duties.
The Regional Director also concluded that Sheila K. Cronan, who occupied the remaining General Attorney position, participated in internal labor relations cases on a regular and consistent basis and was a confidential employee within the meaning of the Statute.
III. The Application for Review and the Authority's Decision in Arlington Field Office, 34 FLRA 127
The Activity sought review of the Regional Director's decision on the grounds that there was an absence of, and a departure from, Authority precedent. The Activity argued that the Authority has never found a bargaining unit appropriate which included attorneys who represent management at administrative proceedings involving internal labor relations. The Activity also argued that the Regional Director's decision departed from Authority precedent, which prohibits employees from being represented by a union where such representation would pose a "conflict of interest." The Activity asserted that the de minimis doctrine was inapplicable or was misapplied. Finally, the Activity argued that an inherent "conflict of interest" is created by placing attorneys who represent management at internal labor relations proceedings in a bargaining unit.
The Union opposed the application for review. The Union contended that: (1) the Regional Director's decision was consistent with Authority precedent concerning the use of the de minimis doctrine regarding confidential employees; (2) the Activity was merely disagreeing with the Regional Director's application of the de minimis doctrine and such disagreement was not a basis for granting an application for review; and (3) no conflict of interest results from the General Attorneys' access to confidential management documents.
In Arlington Field Office, the Authority granted the Activity's application for review. The Authority requested the parties to submit briefs on the two questions noted above.
IV. The Positions of the Parties
Following the Authority's grant of the Activity's application for review, the Activity and the Union submitted briefs. The Department of Justice filed a request to present an amicus curiae brief, which was granted. We have considered all these documents in this decision.
A. The Activity's Position
The Activity contends that the General Attorneys' role in internal labor relations and personnel work creates an inherent conflict of interest between the attorneys' duties and their membership in a bargaining unit. Citing Department of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172, 174-75 (1981), the Activity argues that the General Attorneys are management advocates in internal labor relations matters and must, like management officials, be identified with management. As management advocates, they have access to confidential labor relations information which they could use in grievances against management and therefore would not have the confidence of management if they were in a bargaining unit. In the Activity's view, the General Attorneys should be excluded from the unit because they engage in confidential duties in concert with employees who formulate or effectuate labor management policies, citing Headquarters, 1947th Administrative Support Group, U.S. Air Force, Washington, D.C., 14 FLRA 220, 224-25 (1984) (1947th Administrative Support Group), and have duties which directly affect personnel operations of their own agency, citing Office of Personnel Management, 5 FLRA 238, 246 (1981). The Activity argues further that placing the General Attorneys in a bargaining unit might create an ethical conflict of interest and be contrary to 5 C.F.R. § 735.201a(d) and (f), which prohibits any action by an employee that "might result in or create the appearance of . . . losing complete independence or impartiality . . . or affecting adversely the confidence of the public in the integrity of the Government." Activity Brief at 5.
The Activity also contends that the frequency and/or the amount of internal labor relations work is not a controlling factor in making bargaining unit eligibility determinations. The Activity argues that National Labor Relations Board (NLRB or Board) precedent for determining confidential status should be applied in this case, relying on Associated Day Care Services of Metropolitan Boston, 269 NLRB 178, 181 (1984) (Associated Day Care) and cases cited therein. The Activity maintains that the NLRB: (1) does not consider the amount of time a clerical employee expends on confidential matters; and (2) excludes employees who are expected to perform confidential duties but have not done so. The Activity also argues that the rationale underlying NLRB precedent concerning confidential employees is equally applicable for determining if employees are engaged in personnel work under section 7112(b)(3). Accordingly, the Activity asserts that the General Attorneys also engage in personnel work under section 7112(b)(3) because their work involves the personnel operations of the Agency.
B. The Union's Position
The Union contends that the legislative history of the Statute indicates that attorneys, like other professionals, have a right to the benefits of the Statute, citing U.S. Department of Treasury, Office of Regional Counsel, Western Region, 1 FLRC 258 (1973) (Treasury, Western Region). Second, the Union contends that the language and legislative history of section 7112(b)(2) indicate that Congress intended to follow the NLRB approach concerning the exclusion of confidential employees, which limits confidential employees to secretarial and clerical positions, citing NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170 (1981) (Hendricks County), and does not include positions encumbered by professionals working in the personnel area, citing Red River Army Depot, Texarkana, Texas, 2 FLRA 659 (1980). The Union notes that the case relied on by the Regional Director, EEOC, 9 FLRA at 973, did not involve confidential employees under section 7112(b)(2) but rather employees performing personnel work under section 7112(b)(3). Third, the Union contends that attorneys excluded under section 7112(b)(3) should be limited to those specializing in personnel-related litigation, citing U.S. Department of Housing and Urban Development, Boston Regional Office, Region I, Boston, Massachusetts, 16 FLRA 38 (1984). Fourth, the Union contends that section 7112(b)(4) is not applicable to the instant case as the General Attorneys do not administer chapter 71 of title 5, citing United States Department of Labor, Office of the Solicitor, Region III, 8 FLRA 286 (1982). Finally, the Union contends that, if the Authority does not want to apply the de minimis standard established in EEOC to exclude attorneys under section 7112(b)(2) or section 7112(b)(3), then the case should be remanded to the Regional Director to gather evidence to develop a new standard.
C. The Department of Justice's Position
The Department of Justice (DOJ) contends that Authority and NLRB precedent strongly support the classification of the General Attorneys as confidential employees, citing 1947th Administrative Support Group, 14 FLRA at 224-25 and Associated Day Care, 269 NLRB at 181. DOJ argues that the definition of confidential employee in section 7103(a)(13) of the Statute does not contemplate varying degrees of confidentiality and that there is no place for quantitative inquiry when determining whether individuals are confidential employees, citing Bechtel Incorporated, 215 NLRB 906, 907 (1974) (Bechtel); Associated Day Care, 269 NLRB at 181.
DOJ also contends that a serious conflict of interest would result if the General Attorneys were in any bargaining unit. DOJ argues that the trust and confidence of the Activity's management personnel in the General Attorneys would be seriously undermined if these same attorneys were members of a bargaining unit because in labor relations matters the interests of labor and management are generally opposed. DOJ also argues that allowing attorneys who are in a bargaining unit to represent the Activity in a labor relations case is wholly inconsistent with the spirit of Disciplinary Rule 5-101 of the American Bar Association's Model Canons of Professional Responsibility, which forbids an attorney from representing someone "'if the exercise of professional judgement [sic] on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.'" DOJ Brief at 7-8. Finally, DOJ argues that restricting the use of General Attorneys to cases not involving employees from the General Attorneys' bargaining unit would interfere with management's right to assign work.
V. Analysis and Conclusions
For the following reasons, we find that the General Attorneys are confidential employees within the meaning of section 7103(a)(13) of the Statute.(1)
A. Authority Precedent
Section 7103(a)(13) of the Statute 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." An employee is "confidential" 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. U.S. Army Plant Representative Office, Mesa, Arizona, 35 FLRA 181, 186 (1990) (U.S. Army, Mesa) (citing 1947th Administrative Support Group, 14 FLRA at 225). See Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Cincinnati District, Cincinnati, Ohio, 36 FLRA 138, 145 (1990); Department of Transportation, U.S. Coast Guard, 8th Coast Guard District, New Orleans, Louisiana, 35 FLRA 84, 89 (1990); U.S. Department of Housing and Urban Development, 34 FLRA 207, 211-13 (1990); Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 5 FLRA 339, 341-43 (1981). An employee is not "confidential" in the absence of either of these requirements. U.S. Army, Mesa, 35 FLRA at 186 (citing Tick Eradication Program, Veterinary Services, Animal and Plant Health Inspection Service, United States Department of Agriculture, 15 FLRA 250, 252 (1984); Federal Mediation and Conciliation Service, 5 FLRA 28, 31 (1981)). This two-part analysis is the Authority's "labor-nexus" test, which we use to examine the nature of an employee's confidential working relationship. Of course, we will also exclude as a confidential employee any individual who actually formulates or effectuates management policies in the field of labor-management relations. See U.S. Department of Housing and Urban Development, Washington, D.C., 35 FLRA 1249, 1255-57 (1990) (HUD, Washington).
We base bargaining unit eligibility determinations on testimony as to an employee's actual duties at the time of the hearing rather than on duties that may exist in the future. HUD, Washington, 35 FLRA at 1256-57; Veterans Administration Medical Center, Prescott, Arizona, 29 FLRA 1313, 1315 (1987) (VA, Prescott). Bargaining unit eligibility determinations are not based on evidence such as written position descriptions or testimony as to what duties had been or would be performed by an employee occupying a certain position, because such evidence might not reflect the employee's actual duties. VA, Prescott, 29 FLRA at 1315 (citing Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52, 53 (1981)). See also, U.S. Army Engineer Topographic Laboratories, Fort Belvoir, Virginia, 10 FLRA 125, 127 n.3 (1982) (incumbent employees, who were expected to perform certain duties sometime in the future, were not management officials because those duties were not actually assigned to them at the time of the hearing).
In cases where an employee has recently encumbered a position, we consider duties to have been actually assigned where: (1) it has been demonstrated that, apart from a position description, an employee has been informed that he or she will be performing the duties; (2) the nature of the job clearly requires those duties; and (3) an employee is not performing them at the time of the hearing solely because of lack of experience on the job. U.S. Department of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37 FLRA 239, 245 (1990) (Interior, Yuma). See also United States Department of Labor, Office of the Solicitor, Region III, 8 FLRA 286, 287-88 (1982) (DOL, Solicitor) (Authority dismissed representation petition based on section 7112(b)(4) noting that, although there was no record evidence that the attorneys actually provided legal advice and assistance regarding the enforcement of section 7120(a)-(e) of the Statute, similarly situated employees had participated in such activities and it was clear the attorneys would also be called upon to administer those provisions of section 7120). On the other hand, we do not consider duties to have been actually assigned to a new incumbent where: (1) the assignment of duties is speculative because the nature of the job may change or the nature of the job does not require such duties; or (2) although duties may be included in a written position description, it is not clear that the duties actually will be assigned to the employee or that the employee has been informed that he or she will perform those duties. Interior, Yuma, 37 FLRA at 245.
The Authority has not previously addressed: (1) the circumstances under which attorneys would be considered confidential employees; or (2) whether persons are confidential employees if, although not having a confidential working relationship with a person exercising managerial functions in the labor relations area, they may obtain, in the normal performance of their duties, advance information of management's position with regard to contract negotiations, the disposition of grievances, and other labor relations matters.
B. Private Sector Precedent
The NLRB has long recognized that employees who have a confidential relationship to management should be excluded from the bargaining unit. Union Oil Co. of California, Inc. v. NLRB, 607 F.2d 852, 853 (9th Cir. 1979) (Union Oil) (citing NLRB v. Bell Aerospace Co., 416 U.S. 267, 283 (1974); The B.F. Goodrich Co., 115 NLRB 722, 724 (1956) (B.F. Goodrich); Ford Motor Co. 66 NLRB 1317, 1322 (1946) (Ford Motor)). The NLRB's rationale behind the exclusion of confidential employees from the bargaining unit is that
'management should not be required to handle labor relations matters through employees who are represented by the union with which the [c]ompany is required to deal and who in the normal performance of their duties may obtain advance information of the [c]ompany's position with regard to contract negotiations, the disposition of grievances, and other labor relations matters.'
Hendricks County, 454 U.S. at 179 (quoting Hoover Co., 55 NLRB 1321, 1323 (1944) (Hoover)).
In B.F. Goodrich, the Board reaffirmed its previous ruling in Ford Motor and stated its intention "to limit the term 'confidential' so as to embrace only those employees who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations." Hendricks County, 454 U.S. at 189 (quoting B.F. Goodrich, 115 NLRB at 724). The Board has narrowly construed the definition of confidential employee because most employees have an arguably confidential relationship with management, and because an expansive application of the exclusionary rule would deprive many employees of the right to bargain collectively. Union Oil at 853 (citing Westinghouse Electric Corporation v. NLRB, 398 F.2d 669, 670 (6th Cir. 1968) (Westinghouse Electric); B.F. Goodrich, 115 NLRB at 724).
In addition, the Board has not viewed the amount of time devoted to labor relations matters as a controlling factor in determining confidential status. Associated Day Care, 269 NLRB at 181 (citing Reymond Baking Co., 249 NLRB 1100 (1980); Siemens Corp., 224 NLRB 1579 (1976); West Chemical Products, 221 NLRB 250 (1975); Bechtel). Rather, the Board determines the nature of an individual's alliance with management by making a complete examination of all the factors present, such as the relative amount of interest the individuals have in furthering the policies of the employer as opposed to those of the bargaining unit in which they would be included. Cf. Detroit College of Business, 296 NLRB No. 40, slip op. at 8-9 (Aug. 25, 1989).
In applying the labor-nexus test set forth in B.F. Goodrich, the NLRB has deviated from its stated definition in only one major respect. In a separate line of decisions, the NLRB has designated as confidential employees persons who, although not assisting persons exercising managerial functions in the labor-relations area, "regularly have access to confidential information concerning anticipated changes which may result from collective-bargaining negotiations." Hendricks County, 454 U.S. at 189 (quoting Pullman Standard Division of Pullman, Inc., 214 NLRB 762, 762-63 (1974) (Pullman Standard) and citing Triangle Publications, Inc., 118 NLRB 595, 596 & nn.3-4 (1957)). The NLRB has not followed a practice of depriving all employees who have access to confidential business information of the full panoply of rights afforded by the National Labor Relations Act (NLRA) (Hendricks County, 454 U.S. at 189), but attempts to strike a balance between the right of employees to be represented in the collective bargaining process with the right of the employer to formulate, determine, and effectuate its labor policies with the assistance of employees not represented by the union with which it deals (Westinghouse Electric, 398 F.2d at 670-71). "[E]mployees who by their duties, knowledge, or sympathy [are] aligned with management should not be treated as members of labor." Hendricks County, 454 U.S. at 193 (Powell, J., concurring in part and dissenting in part).
The Board considers the precise nature of the allegedly confidential information to be significant in making confidential employee determinations. The Board will not exclude as "confidential" those employees who merely have access to personnel or statistical information upon which an employer's labor relations policy is based; nor will it exclude employees with access to labor relations information after it has become known to the union or the employees concerned. Pullman Standard, 214 NLRB at 763 (citing American Radiator & Standard Sanitary Corporation, 119 NLRB 1715 (1958)).
Finally, the NLRB does not take the view that unionized employees would be more disposed than unrepresented employees to breach their obligation of confidentiality. Thus, in Dun & Bradstreet, Inc., 240 NLRB 162, 163 (1979) (Dun & Bradstreet-II), the Board stated: "'[t]he law has clearly rejected the notion that membership in a labor organization is in itself incompatible with the obligations of fidelity owed to an employer by its employee.'"
C. Application of Private Sector Precedent
When there is an absence of specific precedent under the Statute, an analogy to comparable legal developments in the private sector is a useful guide. See Library of Congress v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983) (Library of Congress), enforcing American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578 (1982). When there are comparable provisions under the Statute and the NLRA, decisions of the NLRB and the courts interpreting the NLRA have a high degree of relevance to similar circumstances under the Statute. See Library of Congress, 699 F.2d at 1287. While decisions of the NLRB are not controlling in the Federal sector, the Authority appropriately takes into account the experience gained in the private sector. Department of the Navy, Pearl Harbor Naval Shipyard Restaurant System, Pearl Harbor, Hawaii, 28 FLRA 172, 176 n. (1987).
The confidential employee labor-nexus tests of the Authority and the NLRB are similar although the NLRB test is somewhat more restrictive. The NLRB, however, has also designated as confidential employees persons who, although not assisting persons exercising managerial functions in the labor-relations area, "regularly have access to confidential information concerning anticipated changes which may result from collective-bargaining negotiations." Hendricks County, 454 U.S. at 189 (quoting Pullman Standard, 214 NLRB at 762-63). The Authority has not, before this case, had an opportunity to address this issue.
In Arlington Field Office, we accepted the Activity's application for review and raised two questions with regard to their status as confidential employees: (1) whether the General Attorneys' union affiliation would create a conflict of interest with their role in internal labor relations, and (2) whether the frequency or amount of internal labor relations work performed is a controlling factor in determining if the General Attorneys were confidential employees under the Statute.
Regarding the first question, we agree with the Union that Congress intended attorneys, like other professionals, to have the same right to be represented by a union that Congress conveyed to other Federal employees. Membership in a labor organization is in itself not incompatible with the obligations of fidelity owed to an employer by its employees. See Dun & Bradstreet-II, 240 NLRB at 163. We do not agree with the DOJ that 5-101 of the American Bar Association's (ABA) Model Canons of Professional Responsibility is controlling here. We do not consider the ABA's Model Canons of Professional Responsibility when making bargaining unit determinations under the Statute. See Treasury, Western Region, 1 FLRC at 260 (ABA restrictions upon the conduct of its members do not control unit determinations and qualifications of a labor organization for exclusive recognition under Executive Order 11491). Nonetheless, the right of an employee to be represented in the collective bargaining process must be balanced with the right of the employer to formulate and effectuate its labor policies with the assistance of employees not represented by the union with which it deals. See Westinghouse Electric, 398 F.2d at 67-71. In our view, inclusion of the General Attorneys would present a conflict of interest because, as representatives of management in the type of internal labor relations matters they handle, they may obtain advance information of management's position with regard to contract negotiations, the disposition of grievances, and other labor relations matters.
Regarding the second question, we conclude that the Regional Director mistakenly relied on EEOC in finding that the 10 General Attorneys were not confidential employees under section 7112(b)(2) because their "involvement in internal labor relations cases, when compared to their overall work load, has been de minimus [sic] and insufficient to exclude them from the existing bargaining unit." Regional Director's Decision at 5. EEOC involved the application of the de minimis doctrine, which concerns the frequency and the amount of work an employee perf