OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION REGION WEST
DEFENSE DISTRIBUTION DEPOT OKLAHOMA
TINKER AIR FORCE BASE, CALIFORNIA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916
Case No. DA-CA-50226
Charlotte A. Dye, Esquire For the General Counsel
Mr. Phil Porter For the Charging Party
Before: WILLIAM B. DEVANEY Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. (1), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns, quite narrowly and quite specifically, whether the position of secretary to the Chief, Support Division, Defense Distribution Depot Oklahoma is that of a "confidential employee" within the meaning of § 3(a)(13) of the Statute.
This case was initiated by a charge filed on January 9, 1995
(G.C. Exh. 1(a)) alleging violations of §§ 16(a)(1), (5) and (8) of
the Statute. The Complaint and Notice of Hearing issued on October
31, 1995 (G.C. Exh. 1(c)); alleged violations only of §§ 16(a)(1)
and (5); and set the hearing for February 5, 1996, pursuant to
which a hearing was duly held on February 5, 1996, in Oklahoma
City, Oklahoma, before the undersigned. All parties were
represented at the hearing, were afforded full opportunity to be
heard, to introduce evidence bearing on the issues involved, and
were afforded the opportunity to present oral argument which each
party waived. At the conclusion of the hearing, March 6, 1996, was
fixed as the date for mailing post-hearing briefs and Respondent
and General Counsel each timely mailed an excellent brief received
on, or before, March 11, 1996, which have been carefully
considered. Upon the basis of the entire record, including my
observation of the witnesses and their demeanor, I make the
following findings and conclusions:
1. Without going into details, the Decision and Order on
Petition for Clarification of Unit(2) in Department of Defense, Defense Logistics
Agency, Case No. WA-CU-20915, January 11, 1993 (Res. Exh. 15,
Attachment), notes that supply depots previously separately
maintained by the Army, Navy, Air Force and Marine Corps were
transferred to create the single Defense Logistics Agency
2. DLA initially established three Regions: Defense
Distribution Region West (DDRW); Defense Distribution Region East
(DDRE); and Defense Distribution Region Central (DDRC) which
included Oklahoma City (i.e., Defense
Distribution Depot Oklahoma -- (DDO(3))(Res. Exh. 15). In 1993, the Central Region
was disbanded and DDO was moved to the Western Region (Tr.
3. DDO is located at, and is a tenant of, Tinker Air Force
Base (Tr. 153), and, as a tenant, is subject to the rules and
regulations of Tinker Air Force Base (Tr. 154). In the transcript,
reference to the "Commander" means the Commander of the Depot (DDO)
-- not the Commander of Tinker Air Force Base (Tr. 188).
4. DDO is a subordinate part of Region West (DDRW), which is
headquartered in Stockton, California, and Region West is a
subordinate part of DLA, headquartered in Washington, D.C. (Res.
Exh. 15; Tr. 137, 138, 139). Mr. Dean M. Boswell is Labor Relations
Officer for DDRW (Tr. 137).
5. DDO was created in August, 1992, by the transfer of
function and employees from the Air Force Logistics Command, Tinker
Air Force Base to DLA (Tr. 92, 138). Mr. Bobby Hughes was Chief of
Support Division DDO prior to Mr. Bill Watkins, i.e., Mr. Hughes was Chief of Support Division until
about November 21, 1993; and was succeeded by Mr. Watkins on
November 22, 1993 (Tr. 37).
6. DDO has about 800 employees (Tr. 138); is headed by a
Commander and Deputy Commander (Tr. 188); and the Chief of Support
Division, Mr. Watkins, is third in line of command and would be in
charge of DDO in the absence of both the Commander and Deputy
Commander (Tr. 189). Mr. Watkins, as Chief of Support Division is
in charge of four Branches: computer systems (computer equipment
and computer support) (Tr. 15); administrative support [XA]
(budget, payroll, public affairs, training, mail, safety and
personnel) (Tr. 15-16); discrepancies [XI] (reports of
discrepancy)(Tr. 16); and distribution [XP] (distribution,
transportation, receiving and storing)(Tr. 16). The Support
Division, helps the Depot carry out its mission on a daily basis
7. Ms. Carmen T. Spiegel had worked at the Tracy Depot and
the Sharp Depot in California (Tr. 13), and came to work in
Oklahoma on November 1, 1993, as secretary in the Support Division
(Tr. 15). Initially, Ms. Spiegel was secretary to Mr. Hughes, who
was Chief of the Support Division when she arrived; and on November
22, 1993, three weeks later, Mr. Hughes was succeeded by Mr.
Watkins (Tr. 36-37). Ms. Spiegel was Mr. Watkins' secretary from
November 22, 1993, until April 17, 1995 (Tr. 15, 37), when she was
detailed to Installation Services, where she worked from April,
1995, until August, 1995 (Tr. 14); then to Warehousing, where she
worked from August 23, 1995, to September, 1995 (Tr. 14); and since
September, 1995, has worked at Customer Assistance (Tr. 13). For
paperwork purposes, Ms. Spiegel still occupies the position of
Support Division secretary, although as noted, she has been
detailed out of that position since April 17, 1995 (Tr. 15, 38). I
have considered her testimony, as well as the testimony of all
other witnesses, carefully and agree with Respondent that ". . .
Ms. Spiegel was not forthcoming in divulging the actual nature of
her job duties . . . ." (Respondent's Brief, p. 2). Indeed, so
pervasive was her purpose to conceal labor-management related
activities that she was shown by her own testimony to have been
untruthful. For example, she stated that she never typed anything
for Mr. Watkins that related to labor-management matters (Tr. 27),
but later admits that on August 22, 1995, she typed, "Bargaining
Unit Evaluation/Determination" concerning her position as a
confidential employee and the position of Ms. Diana Barnaba and Ms.
Sherry Smith, as employees engaged in personnel work in other than
a purely clerical capacity (Res. Exh. 10; Tr. 46); that she typed
Mr. Watkins' memorandum of August 15, 1994 (Res. Exh. 8),
concerning negotiations -- incredibly, Ms. Spiegel asserted that
even though her initials are shown she did not necessarily type the
letter (Tr. 49); that she typed Mr. Watkins' letter of January 25,
1995, to Union President Wallace inviting him, or his designee, to
attend scheduled Commander's meetings; Mr. Watkins' letter of
January 5, 1995, to Mr. Phillip Porter, Chief Steward (Res. Exh.
11) transmitting information requested by Mr. Porter (Res. Exh. 11,
Attachment); and that she typed management's proposal in
negotiations concerning a reduction in force (RIF) (Res. Exh. 2;
Tr. 40, 41). With respect to the "Most Efficient Organization" --
"MEO", Ms. Spiegel first responded, "I don't know what you are
talking about." (Tr. 74); then admitted that she had, ". . . heard
of the acronym before" (Tr. 74); admitted she saw MEO on paperwork
from DDRW (Tr. 82); and Ms. Donna Libel credibly testified that Ms.
Spiegel updated a disc furnished by DDRW to reflect DDO's most
efficient organization (Tr. 219-220). Accordingly, where there is
any conflict of testimony concerning her duties, the testimony of
Messrs. Boswell and Watkins, which I found to be entirely credible,
will be credited and that of Ms. Spiegel will not be credited.
In about August or September, 1994, Mr. Watkins began
handling grievances and Ms. Spiegel was instructed to start a log
book on grievances, which meant that she had to read at least the
cover letters to log in each grievance (Tr. 33, 58-59), set up a
suspense file, wrote any notations Mr. Watkins told her to make
(Tr. 65), sent the grievance to the employee's division (Tr. 33),
and followed up to ensure that action was timely taken (Res. Exh.
Ms. Spiegel took telephone messages for Mr. Watkins (Tr. 18)
and, despite her denial (Tr. 55), I credit Mr. Boswell's testimony
that he did leave messages with Ms. Spiegel concerning
labor-management positions of DDO and that if Mr. Watkins could not
call back for her, Spiegel, to find out the information and call
him (Tr. 159).
Ms. Spiegel typed labor-management related materielfor Mr.
Watkins (Res. Exhs. 2, 8, 10, 11; Tr. 219-220). Ms. Spiegel's
assertion that Mr. Watkins never told her she was in a confidential
relationship (Tr. 35) is belied by the nature of her duties, but,
more important, is contrary to Mr. Watkins' memorandum of August
22, 1994 (Res. Exh. 10), which Ms. Spiegel typed, which requested
evaluation of her eligibility to remain in the bargaining unit
because, ". . . In this position, she has access to many sensitive
documents and information used in the division to formulate policy,
or recommend changes to existing DDOO policies and procedures."
Ms. Spiegel has keys to Mr. Watkins' office and files, has
responsibility to open the office in Mr. Watkins absence and unlock
file cabinets to file material (Tr. 75). She also retrieves
documents from Mr. Watkins' office; had access to grievance files,
which were in a locked file cabinet in Mr. Watkins' office, because
she had to, ". . . get into my files" (Tr. 76) during the day. She
also had the responsi-bility to make certain that the files and Mr.
Watkins' office were kept locked (Tr. 75).
Ms. Spiegel opened all mail and logged it in except mail
marked "To be opened by the Addressee only" (Tr. 22), maintained
suspense files for all correspondence requiring action (Tr. 22,
Ms. Spiegel typed performance appraisals (Tr. 18); in
addition to providing typing support for Mr. Watkins (Tr. 27), Ms.
Spiegel checked correspondence from branch secretaries to be signed
by Mr. Watkins, the Commander or Deputy Commander (Tr. 26); she did
typing support for budget, payroll, OSHA reports, contracts, and
personnel (Tr. 27).
Ms. Spiegel attended the weekly staff meeting that Mr.
Watkins held with his branch chiefs (Tr. 28) and conceded that all
sorts of problems were discussed (Tr. 23-31). Ms. Spiegel, in a
three-way telephone conversation, was asked by Mr. Boswell about
the impending RIF (Tr. 56).
Ms. Spiegel stated that Mr. Porter or Mr. Clayton Stasney
came in the office now and then to see Mr. Watkins and, ". . . they
would go into the office and close the door or they would go into
the commander's conference room and close the door" (Tr. 31); and
she knew Mr. Watkins sat in the negotiating meetings with Boswell,
Ms. Cathy Brown, Mr. Jim Usher, Mr. Porter, Mr. Stasney, the
Commander and Deputy Commander (Tr. 42); and that she typed
proposals on the second day of the meeting (Tr. 42; Res. Exh.
From April, 1995, following Ms. Spiegel's detail elsewhere,
Ms. Jean Ross, a secretary in Installation Services (Tr. 126), was
detailed for four months as secretary to Mr. Watkins, i.e., from April to August, 1995 (Tr. 127). Ms. Ross
stated that she typed material on labor-management matters for Mr.
Watkins (Tr. 128), including a letter, ". . . to the union on
safety-toes boots" (Tr. 129), and material on the RIF which, Mr.
Watkins reminded, was confidential (Tr. 130-131); that she
logged-in grievances and gave them to Mr. Watkins (Tr. 131); that
she suspensed them and sent them to where the employee worked (Tr.
131); and that she assumed Mr. Watkins advised higher management on
labor-management matters because he got calls from the personnel
department in California (Tr. 132).
Mr. Porter conceded he had met with Mr. Watkins informally
on labor-management matters (Tr. 96) and had met with him
concerning implementation of the supplement negotiated by DDRW,
specifically the safety shoe issue (Tr. 96, 97-122). Mr. Porter
stated that ". . . I am aware that he [Watkins] has discussed
settlement agreements with one of my stewards" (Tr. 105).
8. Mr. Hughes, as Chief Support Division, with respect to
negotiations on the Union's Supplemental Agreement proposals,
plainly espoused the position of DDO on the Union's proposals (Res.
Exh. 1; Tr. 142-143).
Mr. Watkins, as Chief Support Division, advises the Depot
Commander on labor relations (Tr. 177, 191); is the focal point for
information requests from the gathering of data to Privacy Act
determinations (Tr. 176-177); under the Master Labor Agreement,
grievances went to the immediate supervisor; then to the Branch or
Division Chief; then to the Region Commander (DDRW) (Tr. 153), but
under the Supplement, grievances go to the immediate supervisor;
then to the Depot Commander, and then to alternative dispute
resolution (Tr. 153). Because grievances now go to the DDO
Commander, Mr. Watkins is directly involved in the disposition of
grievances (Tr. 191, 209). The Commander gave him the
responsibility to devise the MEO for the Depot, a major issue which
has been worked and re-worked since 1994 and on which Ms. Spiegel
assisted (Tr. 214). Mr. Watkins now meets, or speaks, to the Union
on labor-management matters 2-3 times per week (Tr. 217); he
frequently communicates with Mr. Boswell and with Mr. Rick Dabel,
Labor Relations Officer, by telephone and by fax about labor
matters (Tr. 144, 190); and is the Depot contact for DDRW for labor
management matters. Mr. Watkins did handle with the Union
implementation of the safety shoe matter and met with Messrs.
Porter and Stasney, the Commander and Deputy Commander about the
RIF and about safety shoes (Res. Exh. 7, Tr. 195, 196, 198). Mr.
Watkins negotiated with the Union concerning blood spills and this
led to withdrawal of an ULP charge (Res. Exh. 3). Mr. Watkins is
the point of contact when labor relations issues involve Tinker Air
Force Base -- by way of example: a Health Clinic problem; a parking
issue (Tr. 155, 201); and implementation of the smoking policy.
DDRW and the Union had a concept of the size and location of
smoking huts; but Tinker decreed that all smoking huts on the base
must be uniform and meet its designed appearance. Accordingly, Mr.
Watkins had to coordinate the matter with all parties and bring to
fruition places for employees to smoke (Tr. 200-201). Mr. Watkins
prepared, on his own, a partnership agreement which he sent to Mr.
Porter under his name (Tr. 180). Mr. Watkins supervises security
and EEO for DDO (Tr. 174); and he developed an arrangement with
Tinker Air Force Base for the hiring and training of displaced DDO
personnel which he had to coordinate with the Union (Tr. 203-204).
Mr. Watkins also is a Division Chief and supervises four branches,
including the supervisor of each branch.
The bargaining unit in this case excludes: "All professional employees, management
officials, supervisors, and employees described in 5 USC 7112(b) 2,
3, 4, 6, 7." (Res. Exh. 15, Attachment). 5 U.S.C. § 7112(b)
provides, in relevant part, as follows:
"(b) . . . nor shall a unit be determined to be appropriate
if it includes--
"(1) except as provided under section 7135
(a)(2) of this title(4), any management official
"(2) a confidential employee;
"(3) an employee engaged in personnel work
in other than a purely clerical capacity;
. . . ."
Of course, the certification did not name the professional
employees, management officials, supervisors, confidential
employees, etc., who were excluded.
General Counsel quite succinctly states the issues presented
". . . The issues presented in this case are whether
Watkins, as Chief of the Support Division, formulates or
effectuates management policies in the field of labor-
management relations, and, if so, whether Spiegel, as
Secretary, acts in a confidential capacity to him when
he is performing his duties in the field of labor-
management relations." (General Counsel's Brief, p. 4).
For reasons fully set forth hereinafter, I conclude that the
answer to each issue posed is, "yes"; and, accordingly, that the
position of secretary to the Chief of the Support Division is a
confidential employee position; and that Respondent did not violate
§ 16(a)(1) or (5) by informing Ms. Carmen Spiegel that the position
was being excluded from the Union's bargaining unit.
1. Chief of Support Division DDO formulates and effectuates
management policies in the field of labor-management
As the Authority has stated,
". . . where a union seeks to represent an employee whose
unit status is disputed, the union may file a
representation petition and/or ULP charge to resolve the
unit status issue. . . ." Food and Drug Administration,
Newark District Office, West Orange, New Jersey, 47 FLRA
535, 536 n.2 (1993).
To be sure, an agency acts as its peril in removing an employee
from a bargaining unit, because, if wrong it commits an unfair
labor practice, Health Care Financing
Administra-tion, 16 FLRA 390, 391-392 (1984), but not, of
course, if it was right, Department of Health and
Human Services, Washington, D.C. and Department of Health and Human
Services, Region VII, Kansas City, Missouri, 16 FLRA 586
(1984); The Adjutant General -- Georgia, Georgia
National Guard, Department of Defense, Atlanta, Georgia, 2
FLRA 712, 713-714 (1980).
In evaluating the status of an asserted confidential
employee, the Authority has stated,
"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. U.S. Army, Mesa, 35 FLRA at 186 (citing
Headquarters, 1947th Administrative Support Group, U.S. Air
Force, Washington, D.C., 14 FLRA 220, 225 (1984)). See
Department of the Treasury, Internal Revenue Service,
Washington, D.C. and Internal Revenue Service, Cincinnati
District, Cincinnati, Ohio, 36 FLRA 138, 144-45 (1990);
Department of Transportation, U.S. Coast Guard, 8th Coast
Guard District, New Orleans, Louisiana, 35 FLRA 84, 87-89
(1990); U.S. Department of Housing and Urban Development,
34 FLRA 207, 211-13 (1990); Headquarters, Fort Sam Houston,
Fort Sam Houston, Texas, 5 FLRA 339, 341-43 (1981). An
employee is not 'confidential' in the absence of either of
these requirements. U.S. Army, Mesa, 35 FLRA at 186 (citing
Tick Eradication Program, 15 FLRA at 252; Federal Mediation
and Conciliation Service, 5 FLRA 28, 31 (1981))." U.S.
Department of Interior, Bureau of Reclamation, Yuma Projects
Office, Yuma, Arizona, 37 FLRA 239, 244 (1990)(hereinafter
referred to as "Yuma Projects").
The Authority further noted in Yuma
"We base 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. HUD, 35 FLRA at 1256-57; VA, Prescott, 29 FLRA at
1315. (Id., at 245).
Defense Distribution Depot Oklahoma (DDO) came into being in
August, 1992, by the transfer of function and employees from the
Air Force Logistics Command. While most of the employees
transferred perform the same duties for DDO that they had performed
for Air Force Logistics Command, there were changes of some jobs,
of some organizations and Defense Logistics Agency's practices,
policies and configuration are different (Tr. 138). The position of
Chief of Support Division of DDO was an evolving position in DLA.
Initially, DDO was in the Central Region; but in 1993, the Central
Region was disbanded and DDO was moved to the Western Region. Mr.
Bobby Hughes was Chief of the Support Division in 1993, and he, on
behalf of DDO, responded in detail to Mr. Boswell, DDRW's Chief
negotiator, concerning the Union's Supplement Agreement Proposals
(Res. Exh. 1, Attachment).
On November 22, 1993, Mr. Bill Watkins succeeded Mr. Hughes
as Chief of the Support Division. Mr. Watkins is a Division Chief,
supervises four branches, including the supervisor of each branch,
and prepares job evaluations for his secretary and for each branch
chief, and, as Division Chief, has supervisory responsibility for
performance evaluations for all employees of the Support
The involvement of the Chief, Support Division, in the
formulation and effectuation of management policies in the field of
labor-management relations has expanded and broadened since its
inception in 1992; nevertheless, as noted above, Mr. Hughes, in
1993, formulated DDO's policies with respect to the Union's
Supplement Agreement Proposals. Mr. Watkins was tasked by the
Commander to develop the MEO for the Depot; was directly involved
in RIF negotiations (Tr. 196); conducted the negotiations with
Tinker Air Force Base for placement of displaced DDO personnel; and
coordinated the hiring and training of displaced DDO personnel with
the Union. Mr. Boswell is the focal point of labor-management
relations for the Region (DDRW) and was the Chief negotiator for
the Supplemental Agreement; but Mr. Watkins is the point of contact
for DDRW for labor-management matters and communicates almost daily
with the Region on labor-management issues. Mr. Watkins is the
advisor to the Commander on labor-management matters (Tr. 177). As
noted, because grievances now go from the immediate supervisor to
the Depot Commander, rather than to the Region Commander, Mr.
Watkins' role as advisor to the Commander has greatly expanded his
role in the disposition of all DDO grievances. Mr. Watkins was the
DDO representative in negotiations with the Union on RIF; he
handled the labor relations issues involving Tinker Air Force,
including a health clinic matter and a parking issue in
negotiations. Mr. Watkins has been responsible for effectuation of
management policy in the implementation of matters such as: Safety
Shoes, which has involved repeated meetings with the Union; smoking
policies, which involved coordination with Tinker Air Force Base
and the Union concerning smoking huts. Mr. Watkins has negotiated
with the Union concerning the settlement of grievances; an Unfair
Labor Practice charge concerning cleaning of blood spills (Res.
Exh. 3) was forwarded to Mr. Watkins and he negotiated a resolution
with the Union which resulted in the withdrawal of the charge. Mr.
Watkins handles for DDO Union information requests; and Mr.
Watkins, on his own, prepared and submitted to the Union a
partnership agreement. Mr. Watkins has given written counseling to
employees; and he now meets or speaks to the Union on
labor-management matters two to three times per week.
General Counsel states, for example, "Watkins testified that
he has not been involved in any arbitration case nor has he been
directly involved in any unfair labor practice charge . . . ."
(General Counsel's Brief, p. 5). While true, this totally
misrepresents the extent of Mr. Watkins' involvement. It is Mr.
Watkins who is contacted by the Region to gather the facts
concerning grievances; and it is Mr. Watkins who advises the
Commander on the disposition of grievances. Mr. Watkins does
negotiate with the Union on settlement of grievances. In like
manner, unfair labor practice charges are forwarded to Mr. Watkins
and he has negotiated settlements with the Union. General Counsel
also asserts that ". . . coordination with the Union over the
implementationof the supplemental agreement provision related to
safety shoes . . . ." fails to show that he formulated or
effectuated management policy. Such assertion is wholly
unrealistic. As General Counsel well knows, negotiation of impact
and implementation issues involves both the formulation and
effectuation of management policy and the safety shoe negotiations
by Mr. Watkins plainly involved myriad management policy issues
ranging from release of employees for measurement -- time, number,
place, duration -- to special lasts, either because a shoe size is
too small or too big, as well as such other matters as protection
from inclement weather, etc. Having considered these and General
Counsel's other contentions, I conclude, for reasons set forth
above, that Mr. Watkins does formulate and effectuate management
relations as an essential part of his duties.
2. The secretary to the Chief of Support Division DDO is a
For reasons set forth above, the record shows that Mr.
Watkins is significantly involved in labor-management relations.
The record also shows that a confidential working relationship
existed between Ms. Carmen Spiegel and Mr. Watkins. From her
testimony, it would appear that Ms. Spiegel's principle complaint
was that she had not been "anointed" and designated "confidential"
by Mr. Watkins (Tr. 35); but the Authority in Yuma
Projects, supra, cautioned that,
"Bargaining unit eligibility determinations are not based on . . .
written position descriptions or testimony as to what duties . . .
would be performed . . . ." but, rather, bargaining unit
determination are based on, ". . . testimony as to an employee's
actual duties at the time of the hearing . . . ." (37 FLRA at
The record, inter alia, shows that Ms. Spiegel typed performance
appraisals and employee counseling; she picked up all mail for the
Division, opened all mail, except that marked "personal" or
"addressee only", logged it in and distributed the mail; did typing
support for Mr. Watkins; answered the telephone and, as I have
found, contrary to her denial, took messages from Mr. Boswell about
various labor-management matters including questions concerning
DDO's disagreement with Union proposals, with specific instructions
to find out the information and call back if Mr. Watkins were not
able to call. Ms. Spiegel up-dated a disc furnished by DDRW to
reflect DDO's Most Efficient Organization, which Mr. Watkins had
developed, and she saw MEO paperwork; she typed bargaining
proposals for Mr. Boswell at the direction of Mr. Watkins; she
joined in a three-way telephone conversation with Messrs. Watkins
and Boswell in which she acted as a "sounding board" for
Respondent's RIF proposals; she set up a log book for grievances in
DDO, set a suspense schedule to insure timely action, distributed
the grievances to designated supervisors, made notes in grievance
files as Mr. Watkins directed, and followed up with supervisors to
whom grievance material had been forwarded. She read all grievances
at least to the extent necessary to log them in and set a suspense
schedule; she receives materials from supervisors, which would
include action on grievances, and places material in grievance
files in Mr. Watkins' office. She attended the weekly staff
meetings held by Mr. Watkins with the branch chiefs, and conceded
that all sorts of problems were discussed including smoking
While mere access to labor relations materials is not enough
to establish confidential capacity, Red River Army
Depot, Texarkana, Texas, 2 FLRA 658, 661 (1980), Ms. Spiegel
had an integral relationship with Mr. Watkins; she was involved in
the handling and processing of labor-management data and
information for Mr. Watkins; she had access to grievance files and
other labor-management files which were kept in a locked file
cabinet in Mr. Watkins' office; she filed material in those files
(indeed she referred to them as "my files"); she had the
responsibility to make certain that the files, and Mr. Watkins'
office, were kept locked. She checked correspondence from branch
secretaries to be signed by Mr. Watkins, the Commander or Deputy
Commander. In U.S. Department of Labor, 33
FLRA 265, 267-268 (1988), the Authority rejected a Union's argument
that a limited amount of actual confidential labor relations work
does not provide a substantial basis for excluding employees from a
bargaining unit; and, in U.S. Department of Labor,
Office of the Solicitor, Arlington Field Office, 37 FLRA
1371 (1990), the Authority stated, in pertinent part, as
"We reject any shorthand approach, such as the de
minimis doctrine, for determining the bargaining unit
eligibility of confidential employees. Rather, a complete
examination of all the relevant factors must be made to
determine the nature of an employee's confidential working
relationship. . .
"We have decided to apply the Pullman Standard doctrine,
as set forth in Hendricks County, 454 U.S. at 189, to
circumstances such as those in the present case. Thus, we
believe that the definition of confidential employee under
the Statute includes employees who, in the normal performance
of their duties, may obtain advance information of manage-
ment's position with regard to contract negotiations, the
disposition of grievances, and other labor relations matters.
In our view, management should not be faced with having
bargaining unit members in positions where they could divulge
information that they obtained as part of their confidential
internal labor relations duties." (at 1382-1383)
Ms. Spiegel was secretary to a policy formulator, she screens
his correspondence and attends management meetings, which, alone
would constitute her confidential capacity, U.S.
Army Communications Systems Agency, Fort Monmouth, New
Jersey, 4 FLRA 627, 636-637 (1980); Department of the Treasury, Internal Revenue Service,
Portsmouth District Office, Portsmouth, New Hampshire, 13
FLRA 388, 389 (1983); Federal Mediation and
Conciliation Service, 5 FLRA 28, 30-31 (1981); but her
involvement in labor-management relations matters was much broader.
In addition, she entered onto a computer disc DDO's MEO; typed
management bargaining proposals; set up grievance files for DDO
grievances, logged each grievance in, suspensed it, followed up
with supervisors, received and filed information in grievance
files; received telephone messages for her supervisor concerning
labor-management matters; etc. In short, Ms. Spiegel was a
confidential employee within the meaning of the Statute.
Internal Revenue Service, Springfield District,
Springfield, Illinois, 41 FLRA 376, 379-380 (1991).
Moreover, following Ms. Spiegel's detail elsewhere on April
17, 1995, Mr. Watkins' involvement in labor-management relations
has greatly expanded. From April to August, 1995, Ms. Jean Ross was
detailed for four months as secretary to Mr. Watkins and she stated
that she typed material on labor-management matters for Mr.
Watkins, concerning, "safety-toes boots" and the RIF which Mr.
Watkins reminded was confidential; that she logged in grievances,
suspensed them and sent them to the supervisor involved; and that
Mr. Watkins got calls from the personnel department in California.
Since September, 1995, to the date of the hearing, Mr. Watkins has
not had an assigned secretary (Tr. 208) but has used the
Commander's secretary. Finally, while not determinative, it is
significant to note that, at each Depot in the Western Region which
has a position comparable to Mr. Watkins', the secretary is
excluded from the bargaining unit (Tr. 161-162).
Accordingly, I find that Ms. Spiegel, and/or the position of
secretary to the Chief, Support Division DDO, is a confIdential
employee within the meaning of the Statute and, therefore,
Respondent's notification of Ms. Spiegel on December 14, 1994, that
the position was that of a confidential employee and excluded from
the bargaining unit was not in violation of § 16(a)(1) or (5) of
Having found that Respondent did not violate § 16(a)(1) or (5) of the Statute, it is recommended that the Authority adopt the following:
The Complaint in Case No. DA-CA-50226 be, and the same is
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: April 30, 1996
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7103(a)(13) will be referred to, simply, as "§ 3(a)(13)".
2. With respect to exclusions from
the single, nation-wide bargaining unit for all DLA employees
represented by the American Federation of Government Employees, the
decision states, simply, "EXCLUDED:
All professional employees, management officials,
supervisors, and employees described in 5 USC 7112(B) 2, 3, 4, 6,
7." (Res. Exh. 15, Attachment) 5 U.S.C. § 7112(b) provides,
"(b) . . . nor shall a unit be determined to be appropriate if it includes--
. . .
(2) a confidential employee;
(3) an employee engaged in personnel work in other than a purely
. . . ."
(5 U.S.C. § 7112(B), (2) and (3)).
3. Respondent also refers to Defense Distribution Depot Oklahoma as: "DDOO". Following the practice of using the initial first letters, Defense Distribution Depot Oklahoma should have been "DDDO". Why one "D" was dropped and a second "O" was added was not made clear. Because "DDOO" is awkward, I have shortened the acronym to "DDO".
4. 5 U.S.C. § 7135(a)(2) provides
"(a) Nothing contained in this chapter shall preclude--
. . .
"(2) the renewal, continuation, or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally represent management officials or supervisors in private industry and which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of this chapter."