U.S. Department of Housing and Urban Development, Headquarters and American Federation of Government Employees, Local 476 (Authority decision, August 23, 1991)

FLRA representation decision. The Authority includes three public affairs specialists in the existing unit, excludes three Schedule C special assistants, and returns one special assistant's status to the Regional Director. That position's unit status remains unresolved. This appropriate-unit matter falls under the judicial-review exclusion in 5 U.S.C. § 7123(a)(2); this remand does not present a final 60-day review period.

Plain-English summary

A HUD union sought to add public affairs specialists and Schedule C special assistants to its bargaining unit. The Authority upheld inclusion of three public affairs specialists because HUD had not shown that they were management officials or confidential labor relations employees. It excluded three special assistants whose assignments depended on their Schedule C ties to political appointees, finding that they lacked a sufficient community of interest with unit employees. Schedule C status alone did not automatically exclude every employee, so the Authority returned one assistant's status for more fact finding about her work. It did not decide the status of a vacant fifth assistant position.

Decision snapshot

• Authority: Bargaining unit criteria under 5 U.S.C. § 7112 and management and confidential employee definitions under § 7103(a).
• Outcome: Three specialists included; three assistants excluded; one assistant's status remanded.
• Key point: Schedule C appointment is relevant to unit placement, but the employee's actual duties and shared interests still matter.

Full text (FLRA public release)

[ v41 p1226 ]

41:1226(96)CU

The decision of the Authority follows:

41 FLRA No. 96

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

HEADQUARTERS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 476

(Union/Petitioner)

3-CU-00028

ORDER GRANTING IN PART AND DENYING IN PART

APPLICATION FOR REVIEW

August 23, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application for
review filed by the Agency under section 2422.17(a) of the
Authority's Rules and Regulations. The Agency seeks review of
the Regional Director's (RD) Decision and Order on Petition for
Clarification of Unit. The Union did not file an opposition to
the Agency's application. The U.S. Department of Interior
(Interior) filed an amicus curiae brief.

The RD found that three Public Affairs Specialists and
five Special Assistants were not confidential employees or
management officials and, accordingly, should be included in
the existing bargaining unit. The RD rejected the Agency's
argument that the Special Assistants should be excluded from
the unit because they were appointed under Schedule C hiring
authority granted the Agency by the Office of Personnel
Management (OPM).

For the following reasons, we grant the application
insofar as it concerns the RD's decision that the Schedule C
Special Assistants should be included in the bargaining unit.
We conclude that three of the Special Assistants should be
excluded from the unit. We find the record insufficient on
which to determine the unit status of an another Special
Assistant. We will deny the application as to the remainder of
the RD's decision.

II. Background

The American Federation of Government Employees, AFL-CIO
(AFGE) is the exclusive representative of a nationwide
consolidated unit of nonprofessional employees of the U.S.
Department of Housing and Urban Development (HUD). The Union
is an AFGE agent for the purpose of representing the Agency's
unit employees.

The Union filed a Clarification of Unit (CU) petition
seeking to include in its existing unit Public Affairs
Specialist positions encumbered by John Flynn, Louis Rotterman
and Jacquelyn Conn and Special Assistant positions encumbered
by Robert Kelner, Carol Nyce, William Glavin, Karen Griffin and
Holly Hopkins. The Agency contended that, except for Griffin
and Hopkins, the incumbents should be excluded from the unit as
management officials and confidential employees. The Agency
also contended that all the Special Assistants should be
excluded from the unit because they are Schedule C employees
and do not share a community of interest with unit employees.(1)

III. The Disputed Positions

A. Public Affairs Specialists

Rotterman and Flynn are employed in the Office of Public
Affairs and are supervised by the Director of Media Relations. Conn is employed in the Office of
Public Affairs and is supervised by the Director
of the Office of Policy Support.

Rotterman's duties are to respond to requests
from persons in the media and maintain
transcripts and videotapes of speeches and
testimony by the Secretary of HUD and others.
Flynn provides information to the public about
HUD's policies, procedures and programs and
deals with the news media, on a daily basis,
concerning HUD operations. Conn provides
"publication oversight" of information issued to
the public by HUD and prepares speeches and
correspondence for signature by the Secretary of
HUD. RD's Decision at 4. Conn also acts as the
technical monitor and representative for HUD's
public affairs contracts, edits material for HUD
offices, and is responsible for assuring
compliance with HUD's established policy on the
use of HUD's "electronic bulletin board." Id.

B. Special Assistants (2)

Glavin, Kelner and Nyce are employed in the
Office of Public Affairs. Glavin is supervised
by the Director of Media Relations and Kelner
and Nyce are supervised by the Director of the
Office of Policy Support. These incumbents were
appointed under Schedule C hiring authority.

Glavin, who assists the Director of Media
Relations and a HUD Assistant Secretary, handles
press inquiries, writes press releases, and
works on White House conference calls. Although
he "participates in the formulation of press and
media releases[,]" his recommendations "are
subject to several layers of review within HUD."
Id. at 3-4.

Kelner researches and prepares speeches and
other items for the Secretary of HUD and other
HUD employees. He also assists the Director of
Media Relations and a HUD Assistant Secretary.
Kelner's work is "subject to several layers of
review within HUD." Id. at 5.

Nyce drafts speeches and correspondence for
the Secretary of HUD and a HUD Assistant
Secretary. Her work is "subject to several
layers of review within HUD to assure that the
matters involved comply with established HUD
policies." Id. Nyce also serves as a
"conveyor" of HUD policies to the media. Id.

Glavin, Kelner, and Nyce are assigned to
projects based on their particular expertise and
their "Schedule C status." Id. at 4-5.

IV. RD's Decision

The RD concluded that the disputed employees
are not confidential employees, within the
meaning of section 7103(a)(13) of the Statute
because "the individuals for whom these
employees work do not formulate or effectuate
management policies in the field of
labor-management relations[,]" as required under
section 7103(a)(13). Id. at 5. The RD noted,
in this regard, that the employees' supervisors
had not been involved in grievances or other
labor-management relations matters. The RD also
noted that although the incumbents could be
involved in the issuance of press releases
pertaining to labor relations matters, "there
was no evidence as to how the formulation of
press releases would create a conflict of
interest between their jobs and union
representation." Id. at 6.

The RD also concluded that the disputed
employees were not management officials, within
the meaning of section 7103(a)(11) of the
Statute, because they do not formulate,
determine or influence HUD policies. He noted
that the employees do not "have the authority to
independently promulgate policy or program
statements over their own signature, nor do they
possess the authority to impose their views upon
HUD managers and their work is subject to
several layers of review." Id. at 6-7.

Finally, the RD found that the Special
Assistants, including Griffin and Hopkins,
should not be excluded from the unit solely on
the basis of their Schedule C status. The RD
noted that nothing in the Statute expressly
excludes Schedule C employees from inclusion in
bargaining units. In addition, the RD noted
that the Authority found in National Treasury
Employees Union and Department of Health and
Human Services, Region V, Chicago, Illinois, 25
FLRA 1110 (1987) (NTEU), that a proposal
enabling certain excepted service employees to
challenge, among other things, adverse actions
through a negotiated grievance procedure was
negotiable.(3) The RD concluded "that Schedule C
employees have a right under the Statute to be
covered by a collective bargaining agreement
and, therefore, to be included in a Federal
sector bargaining unit if otherwise eligible."
RD's Decision at 8.

The RD rejected the Agency's contention that
the inclusion of Schedule C employees in a
bargaining unit was inconsistent with OPM's
regulatory authority with respect to such
employees. The RD stated that the Authority,
not OPM, determined unit status. Moreover,
although the RD noted that the method of
appointment, promotion and removal of Schedule C
employees is different from that of the unit
employees, he noted also that many conditions of
employment of unit and Schedule C employees are
similar, including such matters as compensation,
retirement, performance appraisal, and health
and life insurance. The RD stated, in this
regard, that "Special Assistants have job duties
which are similar to unit employees, have
regular working contacts with unit employees and
share direct supervision in common with unit
employees." Id. at 9.

Based on his findings, the RD concluded that
the Special Assistants shared a community of
interest with unit employees and, as there was
no basis on which to exclude any of the disputed
positions from the unit, directed that the unit
be clarified to include all eight positions.

V. The Application for Review

The Agency seeks review of the RD's decision
on the grounds that: (1) a substantial question
of law or policy is raised because of the
absence of Authority precedent; and (2) the RD's
decision on substantial factual issues is
clearly erroneous. Although the Agency contends
that the RD erred in certain findings with
respect to Conn, Rotterman and Flynn, it
concedes that Conn is not a confidential
employee and that Rotterman and Flynn are not
management officials.

A. Schedule C Employees

According to the Agency, the Special
Assistants, who were appointed pursuant to
Schedule C hiring authority, may not be included
in the bargaining unit. In this regard, the
Agency asserts that the Authority decision in
NTEU does not apply here because it addressed
only Schedule A employees. The Agency also
asserts that Schedule C employees do not share a
community of interest with unit employees. The
Agency claims that although the Schedule C
employees share a common mission with unit
employees, they work in a close and confidential
relationship with the Agency's political
appointees in a manner unlike unit employees.
Further, the Agency contends that the working
conditions of Schedule C employees differ from
those of unit employees in such areas as hiring,
removal, reassignment and transfer, security
investigations, and drug testing. The Agency
notes that "Congress in enacting legislation
providing due process and appeal rights to
excepted service employees, specifically
excluded Schedule C appointments from coverage .
. . ." Application for Review at 3.

The Agency also notes that the specific
duties of the Schedule C employees differ from
those of unit employees and other excepted
service employees. The Agency claims that these
"duties are policy determinative or of a
confidential nature and may have political
implications." Id. at 4. The Agency asserts
that because the Schedule C employees are
involved in the determination of Agency policy,
and require close and confidential relationships
with the Secretary of HUD or other key
officials, their inclusion in the bargaining
unit would not promote effective dealings or
efficiency of Agency operations.

In addition, according to the Agency, "there
is an inherent conflict of interest with respect
to any employee in a Schedule C appointment
being in a bargaining unit." Id. at 8. The
Agency notes that if Schedule C employees were
included in the unit, they could hold Union
office and represent bargaining unit employees
in grievances before the same officials they
work with or for on a daily basis. The Agency
states that the Schedule C employees must be
excluded from the unit because "[a]lthough a
Schedule C appointment does not fit neatly into
one of the Statutory exclusions, any other
result would . . . be incongruous with the
nature of a Schedule C appointment." Id.

Finally, the Agency contends that the
inclusion of the Schedule C employees in the
bargaining unit would be contrary to 5 C.F.R. § 213.3301. According to the Agency, OPM's use of
the term "confidential" in that regulation
should be read as encompassing the same term in
section 7103(a)(13) of the Statute. The Agency
notes that although the Authority is not bound
by OPM determinations, it cannot ignore the
special status of Schedule C employees when
making unit determinations.

B. Rotterman, Flynn, and Glavin

According to the Agency, the RD's decision
that Public Affairs Specialists Rotterman and
Flynn and Special Assistant Glavin are not
confidential employees is based on substantial
factual errors. The Agency notes testimony that
the employees in question are "responsible for
responding to calls from the press, including
matters related to labor management relations
policy[]" and that "it would be impossible for
these employees to respond to the press without
knowledge of the policy implications of the
matter under question." Id. at 9-10. The
Agency also notes testimony that Glavin and
Flynn were involved in matters related to labor
relations policy, including policy discussions
involving cases before the Authority. The
Agency maintains further, without elaboration,
that Glavin should be excluded from the unit as
a management official.

C. Conn

The Agency alleges that the RD erred in
finding that Public Affairs Specialist Conn is
not a management official. The Agency contends
that the record indicates that "Conn effectively
formulates [HUD's] publication oversight policy
as well as the policy regarding use of the
electronic bulletin board[.]" Id. at 12.

D. Nyce and Kelner

The Agency contends that the RD overlooked or
failed to evaluate properly facts relating to
the duties performed by Special Assistants Nyce
and Kelner. According to the Agency, these
facts would have formed a basis to exclude them
from the unit as either confidential employees
or management officials. The Agency states that
these employees "perform[] work that is specific
to their schedule C appointment, which sets them
aside from other employees in Public Affairs as
well as other HUD employees." Id. at 12.

VI. Amicus Curiae Brief

Interior claims that Schedule C employees
should not be included in bargaining units
because such employees do not share a community
of interest with other employees. Interior also
contends that including the disputed Schedule C
employees in the unit would create a conflict of
interest. Interior draws an analogy to the
National Labor Relations Board's (NLRB) policy
of excluding family members of company owners
from bargaining units. Interior notes that if a
Schedule C employee became a Union officer or
active in the Union, the employee would be "at
odds and in conflict with the very reason for
which the employee was hired; an absence of
loyalty to top management would ordinarily be
grounds for termination of a Schedule C
employee." Amicus Brief at 3.

VII. Analysis and Conclusions

For the following reasons, we conclude that
the Agency has established compelling reasons,
within the meaning of section 2422.17(c)(1) of
the Authority's Rules and Regulations, for
granting the application for review insofar as
it concerns the Schedule C Special Assistants
because the RD's decision raises a substantial
question of law or policy because of the lack of
Authority precedent. We further conclude,
however, that no compelling reasons exist for
granting review of the application insofar as it
relates to the remainder of the RD's decision.

A. Public Affairs Specialists

As noted previously, the Agency concedes that
Rotterman and Flynn are not management officials
and that Conn is not a confidential employee.

1. Rotterman and Flynn

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. See generally, U.S. Department of
Labor, Office of the Solicitor, Arlington Field
Office, 37 FLRA 1371, 1376-77, 1383 (1990).

The RD found that Rotterman and Flynn are not
confidential employees because their supervisor
does not formulate or effectuate management
policies in the field of labor-management
relations. The RD found, in this regard, that
there was no evidence that the supervisor had
been involved with any grievances, unfair labor
practices, or other labor-management relations
matters. Although the RD acknowledged that
Rotterman and Flynn occasionally were involved
in the issuance of press releases pertaining to
labor relations matters, he concluded that this
involvement alone did not support a conclusion
that they were confidential employees.

The Agency disagrees with the RD's findings
and conclusions. The Agency has not, however,
demonstrated that the RD's decision is based on
clearly erroneous findings on substantial
factual issues. Accordingly, we find that the
Agency has not established a compelling reason,
within the meaning of section 2422.17 of our
Regulations, for granting its application for
review of the RD's conclusion that Rotterman and
Flynn are not confidential employees and should,
therefore, be included in the existing
bargaining unit. See U.S. Department of Labor,
Office of Administrative Law Judges, Pittsburgh,
Pennsylvania, 40 FLRA 1021, 1024 (1991); U.S.
Department of Interior, Bureau of Reclamation,
Yuma Projects Office, Yuma, Arizona, 37 FLRA
239, 244 (1990).

2. Conn

Section 7103(a)(11) of the Statute defines a
management official as "an individual employed
by an agency in a position the duties and
responsibilities of which require or authorize
the individual to formulate, determine, or
influence the policies of the agency." As the
Authority held in Department of the Navy,
Automatic Data Processing Selection Office, 7
FLRA 172, 177 (1981), management officials are
individuals who: (1) create, establish or
prescribe general principles, plans or courses
of action for an agency; (2) decide upon or
settle upon general principles, plans or courses
of action for an agency; or (3) bring about or
obtain a result as to the adoption of general
principles, plans or courses of action for an
agency. The term "'to influence'" is synonymous
with "'to effectively influence [,]'" and means
"to bring about or to obtain a result[.]" Id.
at 174-75.

The RD found that Conn does not formulate,
determine or influence HUD policies within the
meaning of section 7103(a)(11). In this regard,
the RD noted, among other things, that she does
not have the authority to independently
promulgate policy or program statements over her
own signature and that her work is subject to
several layers of review.

The Agency's application expresses
disagreement with the RD's finding that Conn is
not a management official. The application does
not, however, support the Agency's claim that
the RD's decision is clearly erroneous on a
substantial factual issue and that such error
has prejudicially affected its rights.
Accordingly, we deny the application to the
extent that it challenges the RD's decision that
Conn should be included in the existing
bargaining unit. See, for example, U.S.
Department of Energy, Headquarters, Washington,
D.C., 40 FLRA 264, 270-71 (1991).

B. Special Assistants (4)

The Agency asserts that Special Assistants
Hopkins, Glavin, Kelner, and Nyce should be
excluded from the existing unit because they were appointed
pursuant to Schedule C hiring authority. The
Agency also asserts that Glavin, Kelner, and
Nyce should, apart from their Schedule C status,
be excluded as management officials or
confidential employees.

1. Management Officials/Confidential
   Employees

As discussed more fully above, a confidential
employee is one who acts in a confidential
capacity with respect to an individual who
formulates or effectuates management policies in
the field of labor-management relations. The RD
concluded that Special Assistants Glavin,
Kelner, and Nyce are not confidential employees
because their supervisors do not formulate or
effectuate labor-management relations policies.

In addition, as also discussed more fully
above, management officials are employees who:
(1) create, establish or prescribe general
principles, plans or courses of action for an
agency; (2) decide upon or settle upon general
principles, plans or courses of action for an
agency; or (3) bring about or obtain a result as
to the adoption of general principles, plans or
courses of action for an agency. The RD
concluded that the Special Assistants Glavin,
Kelner, and Nyce are not management officials
because they do not formulate, determine or
influence HUD policies.

Although the Agency disagrees with the RD's
conclusions, the Agency has not established
compelling reasons, within the meaning of
section 2422.17 of our Regulations, for granting
review of these aspects of the RD's decision.
In particular, the Agency has not demonstrated
that the RD's conclusions are based on a clearly
erroneous decision on a substantial factual
issue and that such error has prejudicially
affected its rights. Consequently, we will deny
the Agency's application for review insofar as
it relates to the RD's findings that, apart from
these employees' Schedule C status, they are not
confidential employees or management officials.

2. Schedule C Status

It is undisputed that Schedule C employees
are not expressly excluded from coverage under
the Statute. In particular, neither the
definition of "employee" in section 7103(a)(2)
of the Statute nor the specific unit exclusions
set forth in section 7112(b) of the Statute
references Schedule C employees. For the
following reasons, however, we conclude that
Schedule C employees Glavin, Nyce, and Kelner
may not be included in the existing bargaining
unit.

We note, at the outset, that under section
7105(a)(2)(A) of the Statute, questions
concerning the bargaining unit status of
employees are exclusively reserved for final
resolution by the Authority. See, for example,
U.S. Department of Labor, Mine Safety and Health
Administration, Southeastern District and
American Federation of Government Employees,
Local 2519, 40 FLRA 937, 941 (1991). See also
U.S. Small Business Administration and American
Federation of Government Employees, Local 2532,
AFL-CIO, 32 FLRA 847, 850, 852-53 (1988),
decision on reconsideration, 36 FLRA 155 (1990).
As such, we reject the Agency's assertion that
the Schedule C employees involved in this case
may not be included in the existing unit because
to do so would be contrary to OPM regulations.
Put simply, OPM does not have authority to
regulate unit status. Accordingly, a
determination that a Schedule C employee has a
"confidential working relationship with the head
of an agency or other key appointed official[]"
under 5 C.F.R. § 213.3301 does not compel a
conclusion that such employee is "confidential,"
as defined in section 7103(a)(13) of the
Statute. See Interpretation and Guidance, 4
FLRA 754, 758 (1980) ("determinations under
title V of status as a supervisor or management
official for merit pay purposes does not confer
supervisory or managerial status under [the
Statute].").

We also note, as set forth previously, that
the Authority has not determined the extent, if
any, to which Schedule C employees may challenge
such matters as adverse actions through
negotiated grievance procedures and that issue
is not before us here. See n.3. In our view,
however, that determination is not necessary to
resolve, in general, the unit status question
before us or, in particular, to determine that
the Schedule C employees share a community of
interest with unit employees. We note, for
example, that probationary employees may not, as
relevant here, challenge their terminations
through negotiated grievance procedures. See
National Treasury Employees Union and Federal
Deposit Insurance Corporation, Division of Bank
Supervision, Chicago Region, Chicago, Illinois,
39 FLRA 848, 851-53 (1991) petition for review
as to other matters filed sub nom. Federal
Deposit Insurance Corporation, Division of Bank
Supervision, Chicago Region, Chicago, Illinois
v. FLRA, No. 91-1194 (D.C. Cir. 1991). It has
long been held, however, that such employees
may be included in bargaining units. See
Department of the Navy, Navy Exchange, Mayport,
Florida, 1 A/SLMR 143 (1971).

Although Schedule C employees are not
expressly excluded from inclusion in bargaining
units under section 7112 of the Statute, that
section provides that a unit is appropriate only
if it will "ensure a clear and identifiable
community of interest among the employees in the
unit . . . ." The RD concluded that the
Schedule C Special Assistants share a community
of interest with employees in the existing unit.
We disagree with respect to Special Assistants
Glavin, Nyce, and Kelner.

It is undisputed, in this regard, that
fundamental conditions of employment of the
Schedule C employees, including their
appointments, separations, reassignments, and
transfers, differ from those of employees in the
existing bargaining unit. The Schedule C
employees also are subject to different policies
with respect to reductions in force, security
investigations, and drug testing. It is clear
that, as found by the RD, the Schedule C
employees share many working conditions with
unit employees, including such matters as
compensation, retirement, performance appraisal,
and entitlement to health and life insurance.
The Authority has not, however, "specified
individual factors or the number of such factors
needed to conclude that groups of employees
share a clear and identifiable community of
interest." U.S. Department of Commerce, Patent
and Trademark Office, 39 FLRA 96, 101 (1991).

Moreover, as noted previously, Schedule C
appointments are made to positions "which are
policy-determining or which involve a close and
confidential working relationship with the head
of an agency or other key appointed officials."
5 C.F.R. § 213.3301. These factors, in turn,
affect the nature of the work assigned to and
performed by the employees. Given the nature of
Schedule C appointments, it would appear that
such employees would not, as a general
proposition, share a clear and identifiable
community of interest with unit employees.
Therefore, such employees typically would not be
appropriate for inclusion in a bargaining unit.
Recognizing that the Authority makes unit
determinations based on actual duties performed
by employees, however, we do not adopt a per se
rule in this matter. Instead, we must consider
the duties performed by the Special Assistants
in this case to determine their unit status.

The RD found specifically that Special
Assistants Glavin, Kelner, and Nyce are assigned
work based on their expertise and their
"Schedule C status." RD's Decision at 5. That
is, the work performed by these Special
Assistants is determined by their relationship
to Agency political appointees. Based on: (1)
the differences in fundamental working
conditions between Schedule C employees and
other employees; (2) the fact that the work of
the Schedule C employees is inherently
"policy-determining" or based on "close and
confidential working relationship[s]" with key
political appointees, 5 C.F.R. § 213.3301; and
(3) the RD's findings that Special Assistants
Glavin, Nyce, and Kelner are assigned and
perform work based on their Schedule C status,
we find that these Special Assistants do not
share sufficient common interests with employees
in the existing unit so as to support a
conclusion that they share a clear and
identifiable community of interest. As these
Special Assistants do not share a clear and
identifiable community of interest with unit
employees, they may not be included in the
unit.(5)

In sum, we hold that the nature of Schedule C
appointments coupled with the fact that Special
Assistants Glavin, Nyce, and Kelner are assigned
and perform work based on their Schedule C
status leads to the conclusion that the
requisite community of interest has not been
established. With respect to Special Assistant
Hopkins, the record before us discloses only
that she was appointed pursuant to Schedule C
hiring authority. There is no evidence in the
record, or findings by the RD, with respect to
the work performed by Special Assistant Hopkins.
In particular, the record is devoid of evidence or findings as to
whether Special Assistant Hopkins is assigned
and performs work based on her Schedule C
status. We will, therefore, remand the petition
to the RD for further proceedings concerning
Special Assistant Hopkins consistent with this
decision.

VIII. Summary

For the foregoing reasons, we conclude that
the Special Assistants Glavin, Nyce and Kelner
may not be included in the existing unit. The
Agency has not established compelling reasons,
within the meaning of section 2422.17 of our
Regulations, for granting its application for
review of the RD's findings that Special
Assistants Glavin, Nyce, and Kelner are not
confidential employees or management officials.
The petition with respect to Special Assistant
Hopkins is remanded to the RD for proceedings
consistent with this decision.

The Agency has not demonstrated compelling
reasons, within the meaning of section 2422.17
of our Regulations, for granting its application
for review of the RD's findings that the
disputed Public Affairs Specialists are not
confidential employees or management officials.
Consequently, we deny the application to this
extent. We will order the unit clarified to
include these positions.

IX. Order

The application for review is granted, in
part, and denied, in part. The bargaining unit
for which clarification was sought is clarified
to include: Public Affairs Specialists
Rotterman, Flynn and Conn. The petition with
respect to Special Assistant Hopkins is remanded
to the Regional Director for proceedings
consistent with this decision.

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

1. 5 C.F.R. § 213.3301 provides the following, in pertinent
   part, regarding Schedule C hiring authority:

§ 213.3301 Positions of a confidential or
policy-determining character.

Upon specific authorization by OPM . . .
agencies may make appointments under this
section to positions which are
policy-determining or which involve a close and
confidential working relationship with the head
of an agency or other key appointed officials.
Positions filled under this authority are
excepted from the competitive service and
constitute Schedule C. . . .

2. The record contains no information
   concerning the duties performed by Griffin and
   Hopkins. The Agency's sole contention to the RD
   regarding these employees was that they should
   be excluded from the unit because they were
   appointed under Schedule C hiring authority.
   See also n.4.

3. NTEU was reversed by the United States Court
   of Appeals for the Seventh Circuit. Department
   of Health and Human Services v. FLRA, 858 F.2d
   1278 (7th Cir. 1988). Subsequently, the
   Authority held that nonpreference-eligible
   excepted service employees were precluded by law
   from challenging major adverse actions and
   performance-based actions through negotiated
   grievance procedures. See, for example,
   National Labor Relations Board and National
   Labor Relations Board Professional Association,
   35 FLRA 1116 (1990). Based on the Civil Service
   Due Process Amendments, Pub. L. No. 101-376, 104
   Stat. 461 (1990) (Amendments), however, the
   Authority held negotiable a provision enabling
   certain nonpreference-eligible excepted service
   employees to challenge adverse actions through
   negotiated grievance procedures. National
   Treasury Employees Union and U.S. Department of
   Health and Human Services, Social Security
   Administration, Office of Hearings and Appeals,
   Baltimore, Maryland, 39 FLRA 346, 359 (1991)
   (SSA). The disputed provision in SSA did not
   address Schedule C employees.

4. It is undisputed in the record before us
   that Special Assistant Karen Griffin is no
   longer employed by the Agency. As there is no
   indication in the record that this position is
   now encumbered, and as the Authority does not
   resolve questions concerning the unit status of
   vacant positions, we will not address Griffin's
   position further. See, for example, United
   States Attorneys Office for the District of
   Columbia, 37 FLRA 1077, 1082 (1990).

5. It is unnecessary, in this regard, to
   address claims by the Agency and Interior that
   the disputed Schedule C employees must,
   consistent with NLRB policy, be excluded from
   the existing unit based "on the 'family member'
   theory[.]" Amicus Brief at 2. That policy is
   an "application of [the NLRB's] 'community of
   interest' standard." NLRB v. Action Automotive,
   Inc., 469 U.S. 490, 496 (1985) (footnote
   omitted). Under the policy, "the family member
   is excluded, if at all, because the Board
   determines on the basis of objective factors
   that he lacks common interests with fellow
   employees who are not so related." Id. at 498.
   We conclude, for reasons set forth above, that
   the requisite community of interest has not been
   established with respect to Special Assistants Glavin, Nyce, and Kelner.