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The decision of the Authority follows:
41 FLRA No. 39
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Statute by refusing to honor an employee's dues withholding authorization after the employee's reassignment to a new position. The Judge found that the Respondent did not violate 7116(a)(1) and (8) of the Statute by terminating the employee's dues withholding authorization because the employee was a "confidential employee," within the meaning of section 7103(a)(13) of the Statute.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the procedural rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, and the entire record, we adopt the Judge's findings, conclusion and recommended order only to the extent consistent with this decision and we dismiss the complaint.
II. Background and Administrative Law Judge's Decision
On November 19, 1989, the Respondent assigned employee LuEtta Piper to the position of Secretary to the Chief, or Acting Chief, of the Order Entry Section of the Central Area Distribution Center (CADC). The Respondent had designated Piper's position as not being in the bargaining unit represented by the Union and, accordingly, ceased the deduction of Union dues from Piper's paycheck.
The Judge concluded that Piper was a confidential employee, within the meaning of section 7103(a)(13) of the Statute. Citing various Authority decisions, the Judge stated that 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. The Judge first determined that:
[a]s the Chief is significantly involved in the handling of grievances, meets with the Union on changes in conditions of employment, and handles various personnel actions including: disciplinary actions, establishing new position descriptions, approving appraisals, approving leave, authorizing overtime, making comments on bargaining proposals, and recommending awards, the Chief effectuates management policies in the field of labor-management relations.
Judge's Decision at 9.
The Judge next determined that Piper acts in a confidential capacity to her supervisor because she: (1) types and maintains the notes of the staff meetings which "contain confidential information regarding labor-management issues such as discussion of changes in working condition . . . [;]" (2) "types alternative work schedules, . . . reorganizations, . . . grievances, disciplinary actions, awards, and appraisals . . .[;]" and (3) "is responsible for the proper functioning of the Chief's Office[.]" Id. at 10-11.
Based on his conclusions that Piper acts in a confidential capacity to her supervisor, who effectuates management policies in the field of labor-management relations, the Judge concluded that Piper was a "confidential employee," within the meaning of section 7103(a)(13) of the Statute. Accordingly, the Judge found that the Respondent did not violate section 7116(a)(1) and (8) of the Statute by refusing to recognize Piper's dues assignment after she was reassigned to the position of Secretary to the Chief of Order Entry.
Alternatively, the Judge determined that Piper was a confidential employee pursuant "to the [a]greement of the parties[.]" Id. at 12. The Judge cited Article 1, Section 1
of the parties' collective bargaining agreement, which provides that the agreement does not apply to confidential employees. That provision also states, in pertinent part:
C. The following are examples of confidential employees for purposes of this Agreement:
. . . .
2. Secretary to any management official designated to make decisions on grievances, except group clerks or unit clerks[.]
Id. at 6 (citations and emphasis omitted).
The Judge noted that although the parties had "ignored the Agreement" in the unfair labor practice proceedings, Article 1, Section 1 was "clear, undisputed and directive." Id. at 13. Accordingly, as the Judge concluded that Piper's supervisor "is responsible for and controls the disposition of all first level grievances[,]" the Judge held that Piper was excluded from the bargaining unit pursuant to Article 1, Section 1. Id. at 11. The Judge stated that "if there were any arguable differing interpretation of the Agreement it would, at most, be a contract dispute and the aggrieved party's remedy is through the grievance and arbitration procedure . . . .' Id. at 13.
The Judge concluded as follows:
[W]hether, as I have found, Ms. Piper's dues withholding was automatically cancelled or there is an arguable differing interpretation of the Agreement, which is not asserted, the Complaint must in either event be dismissed.
III. General Counsel's Exceptions
The General Counsel contends that Piper is not a confidential employee, within the meaning of the Statute. According to the General Counsel, the Judge's decision is based on Article 1, Section 1 of the parties' agreement, instead of the Statute, even though the agreement was not relied on by the Respondent or argued by the General Counsel.
The General Counsel contends that Piper's supervisor: (1) is only the first level of management necessary to approve grievance decisions; (2) was involved in disciplinary matters only in connection with one nonunit employee; and (3) did not negotiate with the Union "in the true sense . . . ." General Counsel's Exceptions at 4. The General Counsel also argues that, as Piper's supervisors before and after her reassignment "were comparable with respect to level in the managerial hierarchy[,]" the Judge erred by failing to explain how Piper was a confidential employee in her new position, but "non-confidential" in her previous one. Id. at 4.
Finally, the General Counsel argues that the Judge erred in stating that differing and arguable interpretations of Article 1, section 1 of the parties' agreement should be resolved through grievance and arbitration procedures. The General Counsel asserts that an arbitrator is not authorized to resolve unit status questions.
IV. Respondent's Opposition
The Respondent contends that the Judge determined correctly, based on the Authority's established standards, that Piper is a confidential employee. The Respondent argues that the General Counsel is merely disagreeing with the Judge's factual findings and that those findings are fully supported by the record.
V. Analysis and Conclusions
We conclude that the record before us supports the Judge's findings that: (1) Piper's supervisor effectuates management policies in the field of labor-management relations; and (2) Piper acts in a confidential capacity to her supervisor. Therefore, we adopt the Judge's finding that Piper is a confidential employee, within the meaning of section 7103(a)(13) of the Statute. See U.S. Department of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37 FLRA 239, 144-48 (1990). As Piper is a confidential employee, she may not be included in any appropriate bargaining unit under section 7112 of the Statute. Accordingly, the Respondent did not violate the Statute by ceasing to deduct Union dues from Piper's paycheck.(*) Compare Health Care Financing Administration, 16 FLRA 390, 392-93 (1984) (agency violated section 7116(a)(1) and (8) of the Statute by ceasing deduction of union dues from paycheck of an employee who subsequently was determined to be a bargaining-unit member).
As Piper is a confidential employee, within the meaning of the Statute, we do not address the Judge's alternative finding that Piper was excluded from the bargaining unit by Article 1, Section 1 of the parties' agreement. We note, however, in agreement with the General Counsel, that the Authority has exclusive jurisdiction under sections 7105(a)(2)(A) and 7112(a)(1) of the Statute to make appropriate unit determinations, including the resolution of questions concerning the bargaining unit status of individuals. Accordingly, as relevant here, an arbitrator is not authorized to make such determinations. See U.S Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847, 853 (1988). We note also that the Authority has rejected the dismissal of unfair labor practice complaints in cases alleging violation of statutory rights based on a finding that the parties have proffered differing and arguable interpretations of a collective bargaining agreement. See Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991), petition for review filed sub nom. Internal Revenue Service v. FLRA, No. 91-1247 (D.C. Cir. May 24, 1991). Instead, such complaints are resolved by determining whether the union clearly and unmistakably waived its statutory rights. Id.
The complaint is dismissed.
(If blank, the decision does not have footnotes.)
*/ As it is not necessary to our determination, we express no view on whether Piper properly was included in the bargaining unit prior to her reassignment.