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62 FLRA No. 41
DEPARTMENT OF THE AIR FORCE
EDWARDS AIR FORCE BASE, CALIFORNIA
SPORT AIR TRAFFIC
APPLICATION FOR REVIEW
September 28, 2007
Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members
I. Statement of the Case
This case is before the Authority on an application for review filed by the Union under 5 C.F.R. § 2422.31, seeking review of the Regional Director's (RD) decision denying a petition for clarification of its unit to include one position. The Agency filed an opposition.
The RD found that the incumbent of the disputed Air Traffic Control Training Manager (Training Manager) position is a confidential employee within the meaning of § 7103(a)(13) of the Federal Service Labor-Management Relations Statute (Statute). [n1] For the reasons that follow, we deny the Union's application for review.
The Union filed a petition seeking a determination of the bargaining unit status of the Training Manager position. The Agency maintains that the position should be excluded from the unit because the Training Manager is a confidential employee within the meaning of § 7103(a)(13) of the Statute. Specifically, the Agency contends that the Training Manager serves in a confidential relationship with the Airfield Operations Flight Commander (Flight Commander), who is involved in labor-management relations.
The position in question is located in the 412th Operations Support Squadron (Support Squadron) of the 412th Test Wing at Edwards Air Force Base, California. The Flight Commander supervises a sub-element of the Support Squadron, which includes the Space Positioning Optical Radar Tracking Radar Control facility (SPORT). The acting SPORT Air Traffic Manager (Traffic Manager) and the Training Manager for SPORT report to the Flight Commander. The Training Manager's major responsibility is to plan, manage, develop, and conduct training for air traffic controllers assigned to SPORT, while also ensuring that the controllers are current as to Federal Aviation Administration and Air Force air traffic requirements.
In determining whether the Training Manager is a confidential employee, the RD examined the Training Manager's and the Flight Commander's interactions with the Union, specifically: (1) the development of the Training Operating Instruction; (2) the Radar Intercept Operation (RIO); (3) an incident involving a Controller-in-Charge (CIC); (4) negotiations regarding the SPORT hours of operation; and (5) the processing of unfair labor practices (ULP) and grievances.
A. The Training Operating Instruction
The RD found that the Training Manager was involved with the Union in a collaborative process to draft an operating instruction (OI) regarding training. The Training Manager's involvement in this process preceded the appointment of the Flight Commander, and continued after he became her supervisor. The RD also found that, about the time of the Flight Commander's appointment, the Training Manager drafted a letter to the Union concerning the Training OI, stating the parties' agreement to the OI, as revised, but the parties did not sign the letter. The RD noted, in addition, that the Training Manager and the Flight Commander separately suggested to the Union a meeting among the Union President, the Flight Commander, the Traffic Manager, and the Training Manager so that management could explain its reasons for revising the OI and the parties could attempt to resolve any issues of concern to the Union and sign a memorandum of understanding for the record. The RD found that the parties subsequently met and discussed the revisions to the OI. The RD noted that, after the meeting, the Flight Commander took over the OI negotiations because he wanted "to be the focal point for the Union." RD's Decision and Order (RD's Decision) at 5. Moreover, the RD also found that, after [ v62 p160 ] the meeting, the Flight Commander communicated with the Training Manager his views on resolving one of the revisions to the OI that the Union objected to and observed that, in future negotiations, it should be made clear to the Union that training requirements are outside the duty to bargain.
The RD found that, sometime thereafter, the Flight Commander notified the Traffic Manager, the Training Manager, and supervisors, that the Training OI was not yet in effect because the revisions in the OI, after higher-level management had approved them, meant that further negotiations with the Union were required. The Flight Commander asked the Traffic Manager, the Training Manager, and the supervisors to highlight the revisions so that he could present them to the Union.
B. Radar Intercept Operation
According to the RD, Agency management notified the Union that SPORT would provide RIO for the 416th Flight Test Squadron (Test Squadron) and the Union notified management of its intent to file two unfair labor practices (ULPs) and a grievance with respect to that action. The RD found that the Flight Commander and the Traffic Manager discussed the ULPs and grievance with the Union. He also found that the Traffic Manager and the Flight Commander discussed the availability of supervisors to perform a particular RIO mission since impact and implementation bargaining with the Union over the matter had not occurred.
The RD found that the Flight Commander assigned the Training Manager to negotiate the letter of agreement with the Test Squadron and to communicate with the Union as to impact and implementation bargaining. The RD noted that the Flight Commander subsequently inquired as to the status of the RIO process and the Training Manager outlined the next step and indicated she was ready to proceed. The RD also noted that the Training Manager drafted a notice to the Union concerning RIO missions, obtained the Flight Commander and Traffic Manager's approval, and submitted it to the labor relations office for service on the Union.
According to the RD, the Flight Commander learned that a unit employee had refused an assignment as a controller-in-charge and e-mailed the Traffic Manager, with a copy to the Training Manager, expressing his concern that employees should not be able to dictate how management will use them. The RD found that he also indicated his intent to revise the SPORT OI, which was ready for submission, so as to address the matter. The RD also found that the Training Manager had no other involvement in this issue.
D. SPORT Hours of Operation
The RD found that the Support Squadron commander assigned the Flight Commander responsibility for negotiations with the Union over changes in SPORT's hours of operations. According to the RD, the Flight Commander discussed with the Training Manager how to present the matter to the Union and, with both the Training Manager and the Traffic Manager, how to handle certain issues in the negotiations. The RD found that the Flight Commander and the Traffic Manager, along with labor relations personnel, engaged in bargaining over hours of operation with the Union but did not reach agreement. The RD further noted that the Support Squadron commander subsequently appointed the Flight Commander as the Chief Negotiator on all matters related to the Union.
E. ULPs and Grievances
The RD found that the Union notified the Traffic Manager of its intent to file a ULP concerning the move of the SPORT Training Office to another building because it changed the location in which unit employees had to take computer certification classes. The RD also found that the Training Manager met with the Flight Commander and he sought her advice on how to handle possible changes affecting employees. According to the RD, the Training Manager drafted a letter to the Flight Commander noting issues that would need to be addressed and possible ways to address them. The RD noted that the Flight Commander considered the Training Manager's ideas when responding to the Union's intent to file a ULP. The RD found, in addition, that the Flight Commander participated in drafting responses to the Union's notice of intent to file ULPs in connection with the Training OI and the change in hours. The RD found that the Training Manager did not participate in drafting documents in response to any of the Union's notices of intent to file a ULP and that she did not see them before they were provided to the Union. The RD noted that, in a conversation, the Flight Commander had referred to the Training Manager as "confidential" without explaining what he meant.
III. RD's Decision
The RD found that the Training Manager is a confidential employee and, thus, that she should be excluded from the unit under §§ 7103(a)(13) and 7112(b)(2) of the Statute. In this respect, the RD noted that an employee is "confidential" within the meaning of § 7103(a)(13) of the Statute if "there is evidence of a [ v62 p161 ] confidential working relationship between an employee and the employee's supervisor," and "the supervisor is significantly involved in labor-management relations." RD's Decision at 10.
First, the RD found that the Flight Commander "is significantly involved in formulating or effectuating policies in the field of labor-management relations." Id. at 11. The RD referenced, in particular, the fact that the Flight Commander participated in discussions between representatives of management and the Union with respect to the Training OI and, subsequently, with the Traffic Manager, took over negotiations with the Union concerning that OI. The RD noted, in this connection, that the Flight Commander provided advice with regard to management's position in negotiating over training requirements, was involved in negotiations over the SPORT hours of operation, and was designated as management's Chief Negotiator for SPORT matters. Further, the RD found that the Flight Commander had been involved in discussing management's position, and representing that position to the Union, with respect to ULPs and grievances. The RD noted that, although the parties' agreement does not specify the Flight Commander position as a management official in the grievance procedure or list that position as one to receive notices of intent to file a ULP, the agreement does not "preclude him . . . from meeting with the Union to discuss and resolve such matters, or from participating in management deliberations regarding grievances and ulps." Id. at 12. Accordingly, the RD found that, while the Flight Commander was not involved in base-wide labor-management negotiations, he was significantly involved in labor-management relations within the meaning of § 7103(a)(13).
Second, the RD found that the Flight Commander's "dealings with [the Training Manager] regarding the Training OI, the RIO mission and other activities, reveal that he was dealing with her in a confidential capacity as to labor-management relations." Id. Specifically, the RD noted the Flight Commander's private communications with the Training Manager concerning management's position on the Training OI and bargaining strategy, including "changes he wished to see in the collective bargaining agreement, when it is renegotiated[.]" Id. at 13. The RD also noted that the Flight Commander sought the Training Manager's "input as management prepared its notification to the Union about the proposed change" involving the RIO mission. Id. In this regard, the RD found that the Training Manager prepared a draft response and the Flight Commander directed her to make certain revisions. According to the RD, "the nature of [the Flight Commander's] comments as to what should and should not be negotiated with the Union and how the concept of the number of RIO missions should be communicated to [the Union] are expressions of one confid[a]nt to another about a labor-management issue." Id. Finally, the RD found that the Flight Commander consulted with the Training Manager regarding the Union's intent to file a ULP concerning the move of the Training Office and considered her views when drafting his response to the Union. Accordingly, the RD found that the Training Manager acted in a confidential capacity with respect to the Flight Commander, who formulates and effectuates management policies in the field of labor-management relations.
Based on the foregoing, the RD found that the Training Manager position should be excluded from the unit pursuant to § 7112(b)(2) of the Statute.
IV. Positions of the Parties
A. Union's Application for Review
The Union contends that review of the RD's decision is warranted because the RD committed a prejudicial procedural error. [n2] Specifically, the Union maintains that the RD erred by "excluding Air Force Instruction [(Instruction)] AFI 36-701, Labor-Management Relations[,] from the record." Application for Review at 2 . The Union asserts that the Instruction prescribes the labor-management relations office as the point of contact for conducting labor relations and does not authorize managers or supervisors to engage in negotiations. The Union claims, on this basis, that the Flight Commander was not authorized to bargain with the Union.
The Union next contends that the RD committed clear and prejudicial error concerning substantial factual [ v62 p162 ] matters. [n3] In particular, the Union argues that the RD erroneously considered the Flight Commander's comment that training requirements are nonnegotiable and should not be bargained during the next contract negotiations. The Union maintains that the contract was open for negotiation at the point that the Flight Commander made his comment. Further, according to the Union, the RD unfairly allowed the Agency to introduce over 20 exhibits that had little or no relationship to actual labor negotiations, but prevented the Union from questioning the Flight Commander as to the number of labor-management issues in which he was not involved, specifically, base-wide negotiations.
Finally, the Union maintains that the RD's decision raises issues for which there is an absence of precedent. [n4] In this regard, the Union asserts that the Training OI was a collaborative effort between the Agency and the Union and that there is no confidentiality in such an effort. According to the Union, while labor-management collaboration may constitute collective bargaining for purposes of ULPs, it does not in a representation case. The Union also notes that statements made by the Flight Commander to the Training Manager to the effect that he considered her to be a confidential employee were made after the representation petition was filed. The Union asserts that permitting management to change an employee's position after the filing of a petition seeking to include that position in the unit would unfairly deprive employees of their rights.
B. Agency's Opposition
With respect to the Union's claim of harmful procedural error, the Agency argues that the RD found that the Flight Commander engaged in contract negotiations with the Union and in numerous additional labor relations activities. According to the Agency, the Union should have raised its concerns about whether the Flight Commander was properly authorized to negotiate with the Union in some other forum, not in a representation proceeding.
As to the Union's claims of factual error, the Agency maintains that whether the parties' agreement was open for negotiation is not a substantial factual matter. The Agency contends that the "key point" of the Flight Commander's testimony is that he was expressing "points of reference for the next contract negotiations," thereby engaging in labor relations matters. Agency Opposition at 3.
The Agency contends that the Hearing Officer did not err by limiting the Union's questioning of the Flight Commander. The Agency acknowledges that the Flight Commander was not involved in base-wide labor relations matters. The Agency contends, however, that: (1) the issue is the extent to which the Flight Commander was engaged in labor relations matters; and (2) the RD specifically found that he was significantly involved in such matters.
The Agency contends that the Union "has not pointed to any issues raised by the decision itself for which there is an absence of precedent." Id. at 4. According to the Agency, the RD's decision was based on existing Authority precedent. In this regard, the Agency notes that, although the Union may have had advance notice of some aspects of the Training OI and the RIO policies by virtue of the collaborative process, the RD "clearly noted aspects of both matters in which . . . [the Flight Commander] used . . . [the Training Manager] as a confidential employee and for which the Union did not have advance notice." Id. at 5.
Finally, as to events after the filing of the petition, the Agency argues that the RD's decision was based on all of the Flight Commander's dealings with the Training Manager, from the time of his arrival until the date of the hearing, and was not limited to events that occurred after the filing of the petition.
V. Analysis and Conclusions
A. The Union has not demonstrated that the RD committed prejudicial procedural error
Under 5 C.F.R. § 2422.31(c)(3)(ii) (§ 2422.31(c)(3)(ii)), the Authority may grant review of an application for review if it is demonstrated that the RD committed a prejudicial procedural error. Even if the Union is correct that the RD erred in failing to consider the Agency's labor-management Instruction, which is contained in the record as part of the Union's post-hearing brief, the Union has not shown how it was prejudiced by the RD's failure to do so. See AFGE, Local 3529, 57 FLRA 633, 636 (2001). Specifically, the Instruction does not prohibit a manager such as the Flight Commander from being assigned to conduct labor-management relations. See Air Force Instruction 36-701, Attachment to Union's Post-Hearing Brief. In addition, the RD based his determination that the Flight Commander was significantly involved in labor relations matters on the evidence as to the Flight Commander's activities. Nothing in the Instruction would affect those findings of fact.
[ v62 p163 ] Accordingly, we find that the Union has not demonstrated a prejudicial procedural error warranting granting the application for review under § 2422.31(c)(3)(ii).
B. The Union has not demonstrated that the RD committed clear and prejudicial error concerning a substantial factual matter
Under 5 C.F.R. § 2422.31(c)(3)(iii) (§ 2422.31(c)(3)(iii)), the Authority may grant review of an application for review if it is demonstrated that the RD committed a clear and prejudicial error concerning a substantial factual matter. The Union asserts that the Flight Commander's misperception as to the existence of contract negotiations, which was adopted by the RD, constitutes a clear and prejudicial factual error. However, the RD relied on the Flight Commander's statement only to demonstrate that the Flight Commander was providing advice as to management's approach to negotiations on matters related to training requirements and, thus, as support for his finding that the Flight Commander was involved in labor relations matters. Consequently, even if the RD erred in stating that the parties' agreement was not open for renegotiation, RD's Decision at 5 n.7, that error was not prejudicial to the Union.
The Union's argument that the Hearing Officer made a prejudicial factual error by preventing the Union from questioning the Flight Commander also fails to establish grounds for review under the Authority's Regulations. As to the Union's claim of error by the Hearing Officer in this case, 5 C.F.R. § 2422.21(b) provides, in relevant part, that "the Hearing Officer may take any action necessary to schedule, conduct, continue, control, and regulate the hearing." Thus, the Hearing Officer clearly had discretion to limit the Flight Commander's testimony. In this regard, the Union's proposed questions related to base-wide negotiations in which the Flight Commander was not involved. See Transcript pp. 170-75. The issue before the RD, however, concerned what labor-relations activities, if any, the Flight Commander was involved in and the Union's questions are irrelevant to that inquiry. In any event, it was not necessary for him to be involved in negotiation of a collective bargaining agreement for him to be significantly involved in labor-management relations. See United States Department of the Army, United States Army Aviation Center, Fort Rucker, Ala., 60 FLRA 771, 772 (2005) (evidence other than that as to director's involvement in negotiations supported RD's determination director significantly involved in labor relations). As such, the Union has not established that it was prejudiced by the Hearing Officer's ruling. See, e.g., Dep't of the Interior, Bureau of Indian Affairs, 56 FLRA 169, 172 (2000).
Accordingly, we find that the Union has not demonstrated a clear and prejudicial error concerning a substantial factual matter that warrants review of the RD's decision under § 2422.31(c)(3)(iii).
C. The Union has not demonstrated that there is an absence of precedent
Under 5 C.F.R. § 2422.31(c)(1) (§ 2422.31(c)(1)), the Authority may grant review of an application for review if it is demonstrated that the RD's decision raises an issue for which there is an absence of precedent. The Union's claim that there is an absence of precedent with respect to the collaborative activities of the Training Manager that are addressed by the RD's decision does not establish grounds warranting review of that decision under § 2422.31(c)(1). In this respect, under long-standing Authority precedent, the confidential relationship that constitutes one of the requirements for finding that an employee is a confidential employee under § 7103(a)(13) of the Statute concerns the relationship between the employee in question and that employee's supervisor. See, e.g., United States Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Marion, Ill., 55 FLRA 1243, 1246 (2000) (citing Red River Army Depot, Texarkana, Tex., 2 FLRA 659, 660 (1980)). The Union's argument that some of the information was collaborative with the Union, rather than confidential, does not establish that there is an absence of precedent.
The Union's argument concerning the absence of precedent with respect to the significance of the Flight Commander's statement to the Training Manager after the petition in this case was filed also fails to establish grounds for review under § 2422.31(c)(1). The RD made clear that his decision was based on the Flight Commander and Training Manager's activities before the petition was filed. RD's Decision at 12 n.14.
The application for review is denied.
Footnote # 1 for 62 FLRA No. 41 - Authority's Decision
(13) "confidential employee" means 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 . . . .
Footnote # 2 for 62 FLRA No. 41 - Authority's Decision
(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
Footnote # 3 for 62 FLRA No. 41 - Authority's Decision
Footnote # 4 for 62 FLRA No. 41 - Authority's Decision