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50:0109(21)CU - - VA Regional Office, Waco, TX and AFGE, Local 2571 - - 1995 FLRAdec RP - - v50 p109

[ v50 p109 ]
The decision of the Authority follows:

50 FLRA No. 21











(Petitioner/Labor Organization)




January 27, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This case is before the Authority on an application for review filed by the Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of that portion of the Regional Director's (RD's) Decision and Order finding that a GS-4 office automation clerk is not a confidential employee and should be included in the bargaining unit. No opposition to the Activity's application for review was filed.

For the following reasons, we deny the application for review.

II. Background and RD's Decision

The Petitioner sought to have its currently certified nationwide consolidated bargaining unit clarified to include all nonsupervisory, nonprofessional employees of the Sector Service Center (Center), located in the Activity's Waco, Texas regional office. The RD granted the petition and included in the unit, among others, the office automation clerk.(1)

The Activity had argued that the office automation clerk could not be included in the unit because she was a confidential employee within the meaning of section 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute).(2) Citing U.S. Department of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37 FLRA 239, 244 (1990) (DOI, Yuma), the RD noted 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 employee's supervisor is significantly involved in labor-management relations. The RD determined that the clerk satisfied the first, but not the second, criterion of DOI, Yuma because the record did not establish that the employee's supervisor, the Center Manager, was significantly involved in formulating or effectuating labor-management policies. The RD also found that the office automation clerk substitutes for the secretaries of the Waco regional office's Director and Assistant Director when the secretaries are on leave.

III. Application for Review

The Activity asserts that review of the RD's decision not to exclude the office automation clerk as a confidential employee is warranted under section 2422.17(c)(4) of the Authority's Rules and Regulations because the RD's decision on a substantial factual issue is clearly erroneous and prejudicially affects its rights.

The Activity asserts first that the Center Manager: initiates personnel actions, including promotions; schedules employees' leave and work times; sets work priorities in his office; and is "the person most significantly involved in any type of negotiation that occurs involving labor-management relations in his section." Application at 3. The Activity maintains that, in view of the significant communication between the Center Manager and the Assistant Director regarding the Center's operations and the size of the unit involved, the Center Manager is significantly involved in effectuating management policies in labor-management relations. The Activity cites Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 644 (1980) (Oak Ridge) for support.

The Activity further argues that the office automation clerk is a confidential employee because of a confidential relationship with the Director and Assistant Director, whom the Activity claims are the chief policy-makers for personnel and labor relations at the regional office. The Activity asserts that the fact that the clerk is the only back-up for the secretaries in the Director's office establishes such a confidential relationship.

IV. Analysis and Conclusions

The Activity has not established that the RD's findings regarding the role of the Center Manager in labor-management relations are clearly erroneous. The Manager's duties, on which the Activity relies to support its claim, do not constitute the type of responsibilities that the Authority has found are aspects of the formulation or effectuation of management policies in labor relations. The responsibilities identified by the Authority include advising management on or developing negotiating positions and proposals, preparing arbitration cases for hearing, and consulting with management regarding the handling of unfair labor practice cases. See, for example, DOI, Yuma, 37 FLRA at 240-41; Red River Army Depot, Texarkana, Texas, 2 FLRA 659, 660 (1980). The record supports the RD's conclusion that although the Center Manager is involved in personnel matters, he is not significantly involved in formulating or effectuating management policies in the field of labor relations. Moreover, the Activity's reliance on Oak Ridge is misplaced because in that case the division directors and branch chiefs were expected to participate in the formulation of management bargaining proposals and the analysis of union proposals, activities that we have generally found to constitute the effectuation or formulation of management policies. In this case, the Center Manager does not engage in such activities.

We also find that the Activity has not supported its assertion that the office automation clerk should be excluded as a confidential employee based on her relationship with the Director and Assistant Director. There is nothing in the record to establish that either the Director or the Assistant Director formulates or effectuates management policies in the area of labor-management relations or that the office automation clerk acts in a confidential capacity to those individuals.

In sum, the Activity has not established compelling reasons under section 2422.17(c) of the Authority's Rules and Regulations for granting its application for review.

V. Order

The application for review of the Regional Director's Decision and Order is denied.

(If blank, the decision does not have footnotes.)

1. Except for the office automation clerk, the Activity does not challenge the RD's findings as to the inclusion of the employees in the existing bargaining unit. Accordingly, we will not address those findings further.

2. Section 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[.]" Section 7112(b)(2) of the Statute provides that a unit will not be appropriate for labor organization representation if it includes a confidential employee.