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56 FLRA No. 176
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT
December 26, 2000
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.
I. Statement of the Case
This case is before the Authority on an application for review of the Regional Director's (RD's) decision clarifying a bargaining unit description to include four Legal Assistant positions, GS-986-07. The Activity filed the application for review under § 2422.31(a) of the Authority's Regulations on the grounds that: (1) the RD's decision raises a substantial question of law or policy in the absence of, or in departure from, Authority precedent; and (2) the RD's determinations of substantial factual matters are clearly erroneous and prejudicially affect the Activity's rights. The Union filed an opposition.
For the reasons that follow, we deny the Activity's application for review.
II. Background and RD's Decision
The Legal Assistant positions in dispute in this proceeding are in the Activity's Office of the Regional Chief Counsel, Region III, Philadelphia, Pennsylvania. These positions were created and filled in 1998. Three of the four employees selected for the Legal Assistant positions had previously been employed as Legal Technicians for the Activity, and their previous positions were included in the bargaining unit.
The Office of the Regional Chief Counsel handles three types of legal activity: (1) representing the Activity in the program law area; (2) providing legal advice; and (3) representing the Activity in the general law area, including personnel law issues. The program law work is not at issue here, because these assignments do not involve internal labor-management relations issues or personnel matters.
The office has provided legal advice to the Region's employee and labor relations office and to managers. This advice has addressed official time, sexual harassment allegations, disciplinary actions, contracts, privacy issues, policy issues that may have labor-management relations implications, and grievance and arbitration proceedings. The record showed that the attorney involved in handling the request for advice on employee and labor relations policy did not involve any Legal Assistant in providing that advice. In another example of providing advice to the Regional Commissioner, the Legal Assistant's role was limited to formatting the memorandum and mailing it via interoffice mail.
The general law work of the Office of the Regional Chief Counsel includes personnel cases. The major responsibility of attorneys handling personnel issues is to represent the Activity in litigation before the Equal Employment Opportunity Commission (EEOC) and the Merit Systems Protection Board (MSPB). The parties stipulated that the attorneys in the Office have handled EEOC cases in which a Union official has been the employee's representative.
The office has not represented the Activity in arbitration cases arising under the parties' agreement, nor has it been involved in contract negotiations or unfair labor practices arising under the Federal Service Labor-Management Relations Statute (the Statute).
The Legal Assistants work directly with the attorneys assigned to EEOC or MSPB cases and assist the attorneys in various ways--administratively, clerically and technically. The work includes formatting briefs and other documents, making copies, sending material to the parties, keeping the attorney appraised of calendar dates, and compiling documents. Other duties performed by the Legal Assistants are proofreading, checking citations, checking punctuation, spelling and grammar, and reviewing format. The Legal Assistants also create and maintain case files. On occasion the attorneys have discussed the merits or strategies of a case with the Legal Assistants. The Legal Assistants may also have sat in on settlement discussions or interviews and taken notes. Nothing in the record showed that the Legal Assistants' presence at these meetings was in any capacity other than observer or note taker. The Legal Assistants have not been present at depositions or hearings. [ v56 p1016 ]
The RD found that the incumbents of the Legal Assistant positions at issue are not confidential employees within the meaning of the Statute. He concluded that while the Legal Assistants act in a confidential capacity to the attorneys, the record failed to establish either that they do so with respect to individuals who formulate or effectuate management policies in the field of labor-management relations, or that there is a confidential relationship between these employees and the individuals they work for when the latter are performing duties in the labor-management relations field. The RD found that although attorneys in the Office of the Regional Chief Counsel effectuate management's policies in internal labor-management relations, that involvement is limited to providing advice to the employee and labor relations staff and to managers. While the attorneys do provide legal advice in the field of labor-management relations, the Legal Assistants do not act in a confidential capacity to them when they are performing this function.
Additionally, the RD found that the office has not been and is not involved in representing the Activity in contract negotiations, arbitrations or unfair labor practice cases before the Authority. According to the RD, the Activity claimed that the attorneys in the office may be involved in unfair labor practice cases and arbitrations in the future. However, the RD noted that the Authority only considers actual duties being performed by an employee at the time of the hearing, and not duties that may exist in the future.
The RD found that the legal work that the attorneys perform representing the Activity before the EEOC and the MSPB does not involve internal labor-management relations. The RD also found that while a Union official may represent an employee before the EEOC or the MSPB, that Union official is acting as representative of the employee rather than of the Union.
Based on the record, the RD concluded that the incumbents of the Legal Assistant positions are not confidential employees within the meaning of § 7103(a)(13) of the Statute.
The RD also found, based on the record, that the Legal Assistants have access to the attorneys' case files that contain confidential materials, including employee personnel records, and attend to administrative and clerical matters involving the attorneys' legal work, such as typing, formatting documents, and preparing documents for discovery. The RD concluded, however, that those duties are clerical in nature, are performed in a routine manner and under established requirements and standards, and do not require the exercise of independent judgment and discretion. The RD found that performing these duties would not create a conflict of interest between the Legal Assistant's duties and Union representation if the positions were included in the bargaining unit.
Accordingly, the RD found that the four Legal Assistants are not engaged in personnel work in other than a purely clerical capacity within the meaning of § 7112(b)(3) of the Statute.
III. Positions of the Parties
A. The Activity
The Activity contends that this case raises a number of issues regarding Federal agencies' legal staffs for which there is an absence of direct Authority precedent. According to the Activity, these issues include: whether a Federal agency's non-bargaining unit attorneys who represent and counsel management in personnel litigation and labor relations matters are entitled to support staff which is aligned with management; whether a law office's ethical obligations are appropriately considered in determining an employee's bargaining unit status; and whether the Authority will order an agency to include employees in a bargaining unit when doing so would result in the elimination of grade-controlling elements from the incumbent's positions and deprive an agency of its right to assign work to employees.
The Activity also asserts that personnel litigation is tantamount to labor relations and that because the Legal Assistants support the attorneys, their interest is more closely aligned with management than with members of the bargaining unit. Furthermore, the Activity argues that, to the extent the RD's decision finds that the Office of the Regional Chief Counsel's defense of management in litigation before the EEOC and the MSPB does not involve labor-management relations, the decision fails to address an issue for which there is an absence of direct Authority precedent.
The Activity argues that, to the extent the RD's decision finds that the Office of the Regional Chief Counsel's defense of management in personnel litigation before the EEOC and the MSPB does not involve labor-management relations, the decision contradicts the record evidence. The Activity contends that by failing to address critical issues raised by the Activity, including the fact that the legal assistants' confidential work is grade-controlling, the RD committed prejudicial error. Furthermore, according to the Activity, when the RD misconstrued the parties' stipulations and ignored weighty record evidence which supported the employees' exclusion from the bargaining unit, he committed [ v56 p1017 ] clear and prejudicial errors concerning substantial factual matters.
B. The Union
The Union asserts that the RD has not departed from prior Authority decisions. The Union contends that the Authority has held, for 20 years, that typing and/or access to confidential material are not grounds to exclude employees from the bargaining unit.
As to the Activity's contention that the RD's decision contradicts the record evidence, the Union asserts that no review is warranted because the Agency has failed to substantiate its case.
IV. Analysis and Conclusions
A. The RD's Decision Does Not Raise a Substantial Question of Law or Policy in the Absence of, or in Departure from, 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. An employee is not confidential in the absence of either of these requirements. United States Dep't of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1376-77, 1383 (1990) (DoL Solicitor).
The Activity has not supported its assertion that there is a lack of precedent, or that the RD's decision conflicts with precedent, regarding whether the Legal Assistants should be excluded as confidential employees based on their relationship with the attorneys in the Office of the Regional Chief Counsel. The attorneys' 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 as being in that category 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, e.g., United States Dep't of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Ariz., 37 FLRA 239, 240-41 (1990); Red River Army Depot, Texarkana, Tex., 2 FLRA 659, 660 (1980) (Red River). The record supports the RD's conclusion that the attorneys are not significantly involved in formulating or effectuating management policies in the field of labor-management relations. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Marion, Ill., 55 FLRA 1243, 1246-47 (2000) (Bureau of Prisons, Marion); Dep't of Veterans Affairs, Reg'l Office, Waco, Tex., 50 FLRA 109, 111-12 (1995).
The Authority bases 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. DoL Solicitor, 37 FLRA at 1377; United States Dep't of Hous. and Urban Dev., Washington, D.C., 35 FLRA 1249, 1256-57 (1990) (HUD). 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. Contrary to the Activity's assertion that the RD's decision is not consistent with Authority precedent, the RD's decision follows and applies Authority precedent. The Authority's only exception to the well established principle that bargaining unit eligibility is based on an employee's actual duties at the time of the hearing, arises in cases where an employee has recently encumbered a position. In that circumstance, the Authority considers 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. See DoL Solicitor, 37 FLRA at 1378. That situation is not present here and the Activity's reliance on DoL Solicitor is misplaced.
Moreover, contrary to the Activity's assertion, there is no absence of precedent concerning whether a law office's ethical obligations are appropriately considered in determining an employee's bargaining unit status. For example, the Authority has stated that, in making bargaining unit determinations, ethical requirements governing the legal profession are not considered. See, e.g. id. at 1381, citing United States Dep't of the Treasury, Office of Reg'l Counsel, W. Region, 1 F.L.R.C. 258, 260 (1973) (American Bar Association's Model Canons of Professional Responsibility 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). [ v56 p1018 ]
The record demonstrates that the Legal Assistants help the attorneys with cases before the EEOC and the MSPB. While information involved in such cases may be personal or sensitive, it does not constitute confidential material within the meaning of § 7103(a)(13) of the Statute because the information is not related to the labor-management relations program. Under the Authority's well-established precedent, employees performing duties such as those performed by the Legal Assistants are not confidential employees within the meaning of the Statute. For the reasons set forth above, the Activity has not demonstrated that there is an absence of applicable precedent.
Accordingly, we find that there is no absence of or departure from applicable precedent and no basis for review of the RD's decision that the Legal Assistants should not be excluded from the bargaining unit as confidential employees.
B. The RD's Determinations of Substantial Factual Matters Are Not Clearly Erroneous and Do Not Prejudicially Affect the Activity's Rights
Under § 7112(b)(3) of the Statute, a bargaining unit will not be found appropriate if it includes an employee engaged in personnel work in other than a purely clerical capacity. For a position to be excluded under that section, it must be determined that the character and extent of involvement of the incumbent is more than clerical in nature and that the duties of the position in question are not performed in a routine manner. Further, the incumbent must exercise independent judgment and discretion in carrying out the duties. Dep't of the Treasury, Internal Revenue Serv., Washington, D.C., 36 FLRA 138, 144 (1990).
The Activity argues that the RD's decision is clearly erroneous because it does not consider the independent judgment and discretion exercised by the Legal Assistants in their work for the attorneys. The record shows, as the Activity asserts, that in addition to checking cites, formatting documents, copying them and preparing them for mailing, the Legal Assistants may make suggestions or recommendations regarding matters related to cases handled by the attorneys. However, there is no evidence that in performing these duties, the Legal Assistants engage in personnel work of more than a clerical nature or exercise independent judgment and discretion. In this regard, the record establishes that the attorneys make the decisions regarding the cases. See Bureau of Prisons, Marion, 55 FLRA at 1247.
As to the Activity's contention that the RD erred in not considering work on cases before the EEOC or the MSPB to be labor-management relations work, the Authority has considered that contention and found that work on cases before the EEOC does not constitute labor-management relations within the meaning of the Statute. See HUD, 35 FLRA at 1254, 1258. Additionally, the RD concluded that the attorneys were not currently involved in performing labor-management relations work. This is consistent with the record and with the Activity's application for review, wherein the Activity asked the Authority to look at the "employees' actual duties at the time of the hearing and their likely duties in the future." Application at 18.
Further, as to the Activity's contention that the Legal Assistants act in a confidential capacity to the attorneys in the Office of the Regional Chief Counsel, the Authority has determined that an employee's "confidential" status to management does not compel a conclusion that the employee is "confidential" within the meaning of § 7103(a)(13) of the Statute. See United States Dep't of Hous. and Urban Dev. Headquarters, 41 FLRA 1226, 1237 (1991), reconsideration denied, 42 FLRA 220 (1991). Moreover, regarding the Legal Assistants' access to confidential documents regarding cases, the Authority has long held that mere access to material related to internal labor-management relations is not sufficient to establish confidential capacity within the meaning of the Statute. See, e.g., Red River, 2 FLRA at 661.
For the above stated reasons, we find that there is no basis for review of the RD's decision.
The application for review is denied.