64 FLRA No. 30
FEDERAL LABOR RELATIONS AUTHORITY
BROADCASTING BOARD OF GOVERNORS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER DENYING APPLICATION FOR REVIEW
October 30, 2009
Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck and Ernest DuBester, Members
I. Statement of the Case
This case is before the Authority on an application for review (the application) filed by the Agency under § 2422.31 of the Authority’s Regulations. The Petitioner/Labor Organization (the
The Regional Director (RD) found that two employees are not confidential employees and, thus, that their positions are not excluded from the bargaining unit. For the reasons that follow, we deny the Agency’s application.
II. Background and RD’s Decision
The RD noted that § 7103(a)(13) of the Statute defines “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[.]” RD’s Decision at 4. The RD also noted that the Authority has held that an employee is a confidential employee when there is evidence of a confidential working relationship between the employee and an agency representative and the agency representative is significantly involved in labor‑management relations.
The RD acknowledged that King receives a variety of information on workplace matters. However, he found that she is not significantly involved in labor‑management relations because she does not: (1) develop, or advise management in developing, positions or proposals for bargaining with the
Consequently, the RD found that, even if the employees have a confidential relationship with King, the relationship does not concern matters involving labor‑management relations.
III. Application for Review
The Agency contends that the RD committed clear and prejudicial errors concerning substantial factual matters. Although the Agency concedes that King does not participate in negotiations with the Union or in responding to grievances or unfair labor practice charges, the Agency asserts that the RD disregarded unrefuted testimony that demonstrates involvement by King,
The Agency also contends that the RD failed to apply established law. The Agency claims that the RD failed to assess whether King and the employees “obtained advance information of management’s positions in labor relations and personnel matters, were part of discussions relating to labor relations and personnel matters and attended meetings where such matters were discussed.”
IV. Analysis and Conclusions
A. The application fails to demonstrate that there is a genuine issue over whether the RD committed a clear and prejudicial error concerning a substantial factual matter.
As discussed above, the RD concluded that King is not significantly involved in labor‑management relations because she does not: (1) develop, or advise management in developing, positions or proposals for bargaining with the
The testimony that the Agency alleges demonstrates involvement in “personnel and potential labor relations issue[s],” Application at 10 (citing Tr. at 38-39), may demonstrate involvement in general personnel issues, but fails to demonstrate involvement by King or Jackson in any matter that the Authority has recognized as a labor-management relations matter. The cited testimony also does not specify any involvement by Jackson or King in the formulation or effectuation of management policies, even if the matter were connected to labor-management relations. In this regard, the Agency fails to specify any involvement by King and identifies
The Agency additionally argues that the RD disregarded testimony that King,
The Agency also alleges that the RD disregarded
Finally, the Agency alleges that
We note the dissent’s conclusion that King,
Accordingly, we conclude that the Agency has not demonstrated that there is a genuine issue over whether the RD committed a clear and prejudicial error concerning a substantial factual matter.
B. The application fails to demonstrate that there is a genuine issue over whether the RD failed to apply established law.
As set forth above, under Authority precedent, an employee is a confidential employee when: (1) there is evidence of a confidential working relationship between an employee and an agency representative; and (2) the agency representative is significantly involved in labor‑management relations. DOL, 59 FLRA at 855. In addition, as also set forth above, employees who may obtain advance information of management’s position regarding labor-management relations matters are confidential employees under the Statute.
The Agency contends that the RD failed to apply established law when he failed to assess whether King and the employees: (1) have advance information of management’s position with regard to contract negotiations, disposition of grievances, or other labor-management relations matters; and (2) are part of discussions relating to labor‑management relations matters. Application at 9-10 (citing DOL). The Agency misconstrues the RD’s decision. In this regard, as discussed previously, the RD specifically acknowledged and rejected the Agency’s claim that Jackson and Davis‑Roane are confidential employees because King has advanced knowledge of management’s actions in the area of labor‑management relations. RD’s Decision at 4-5. The RD determined that, although King is privy to sensitive and confidential information, she is not privy to information concerning labor‑management relations before the information is conveyed to the
Accordingly, we conclude that the Agency has not demonstrated that there is a genuine issue over whether the RD failed to apply established law.
The Agency’s application for review is denied.
Member Beck, dissenting:
I do not agree with the Majority that the Agency’s Application for Review should be denied.
My colleagues and the RD have misapplied our holding in Office of the Solicitor. There, the Authority determined that an employee who obtains “advance information” regarding “contract negotiations, the disposition of grievances, and other labor relations matters” is considered to be a “confidential” employee. 37 FLRA 1371, 1383 (1990) (emphasis added). Here, it is undisputed that King, the supervisor of the employees at issue, attended BBG Board staff meetings (RD’s Decision at 2, 5); at those meetings, she received information regarding potential cuts in the Russian Language Service and “workplace conditions such as telecommuting and parking” (RD’s Decision at 3); and she, as well as the two employees, received e-mail correspondence regarding discussions at the staff meetings that include budget, personnel, modifications of the organization, and a variety of other matters that affect the conditions of employment of Agency employees. RD’s Decision at 2. As a result, the employees who work for King receive advance information about labor relations matters.
The Majority and the RD appear to believe that, unless the
Unlike the Majority and the RD, I cannot conclude that “labor relations matters” arise only when an actual grievance or complaint has been filed or the
I therefore conclude that the undisputed evidence indicates that the employees in question receive “advance notice” of “labor relations matters,” that the RD erred concerning a factual matter, and that the RD failed to apply established law.
 Member Beck’s dissenting opinion is set forth at the end of this decision.
 Section 2422.31 of the Authority’s Regulations provides, in pertinent part, that the Authority may grant an application for review when “[t]here is a genuine issue over whether the Regional Director has . . . [f]ailed to apply established law . . . [or] [c]ommitted a clear and prejudicial error concerning a substantial factual matter.” 5 C.F.R. § 2422.31(c)(3)(i), (iii).
 The parties agreed that the testimony of