U.S. Department of Labor, Office of the Solicitor, Arlington Field Office and American Federation of Government Employees, Local 12 (Authority decision, December 27, 1989)

FLRA representation decision. The Authority grants review and invites briefs on whether Labor Department attorneys should be included in a bargaining unit. It does not decide their unit status. This interlocutory order does not start a judicial-review period for a final order.

Plain-English summary

A regional director placed ten attorneys from the Labor Department Solicitor's Arlington office in an AFGE bargaining unit, finding that their internal labor relations work was too infrequent to exclude them. The department sought review, arguing that management representation work could create an inherent conflict with union membership regardless of how often it occurred. The Authority found unanswered legal questions about that conflict and the role of work frequency in the statutory exclusions. It granted review and invited briefs. The attorneys' unit status remains open.

Decision snapshot

• Authority: Confidential and personnel work exclusions under 5 U.S.C. § 7112(b)(2)-(3); review under 5 C.F.R. § 2422.17.
• Outcome: Application for review granted; briefs invited within 10 days.
• Key point: The Authority sought further argument on whether occasional internal labor relations work creates a unit eligibility conflict.

Full text (FLRA public release)

[ v34 p127 ]
34:0127(28)CU

The decision of the Authority follows:

34 FLRA NO. 28

U.S. DEPARTMENT OF LABOR
OFFICE OF THE SOLICITOR
ARLINGTON FIELD OFFICE
(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, LOCAL 12 (Labor Organization/Petitioner)

3-CU-80024

ORDER GRANTING APPLICATION FOR REVIEW

December 27, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

On October 31, 1988, the U.S. Department of Labor (DOL) filed a timely application for review under section 2422.17(a) of the Authority's Rules and Regulations seeking review of the Regional Director's Decision and Order on Petition for Clarification of Unit. The American Federation of Government Employees, AFL - CIO, Local 12 (the Union) filed an opposition to the application for review.

On December 29, 1988, because two vacancies existed in the membership of the Authority, Acting Chairman McKee issued an Interim Order directing that consideration of this application be deferred until further notice. That action preserved the parties' rights under the Statute to Authority consideration of the Regional Director's decision.

The Authority now considers this application for review. For the reasons discussed below, we grant the application.

II. Regional Director's Decision

The Regional Director concluded that the bargaining unit should be clarified to include 10 of the 11 General Attorney positions in the Office of the Solicitor's Arlington Field Office. The General Attorneys handle litigation arising under a variety of statutes including the Black Lung Benefits Act, the Fair Labor Standards Act, the Service Contract Act, and the Mine Safety and Health Act. Some of the General Attorneys also handle internal labor relations cases before arbitrators, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission.

The Regional Director found that the General Attorneys were not confidential employees under section 7112(b)(2) or employees engaged in personnel work under section 7112(b)(3) of the Federal Service Labor - Management Relations Statute (the Statute). The Regional Director determined that the General Attorneys' "involvement in internal labor relations cases, when compared to their overall workload, (had) been de minimis and insufficient to exclude them from the existing bargaining unit." Regional Director's Decision at 5. In this regard, the Regional Director found that the evidence established that the handling of internal labor relations cases was a sporadic assignment of work and was not a consistent and routine aspect of the General Attorney's overall job duties.

The Regional Director also concluded that Sheila K. Cronan, who occupied the remaining General Attorney position, handled internal labor relations cases on a regular and consistent basis and was a confidential employee within the meaning of the Statute.

III. Application for Review

DOL seeks review of the Regional Director's decision on the grounds that: (1) the decision concerns issues where there is an absence of Authority precedent; and (2) the Regional Director departed from Authority precedent. DOL argues that the Authority has never found a bargaining unit appropriate which included attorneys who represent management at administrative proceedings involving internal labor relations. DOL also argues that the Regional Director's decision departed from Authority precedent which prohibits employees from being represented by a union where such representation would pose a "conflict of interest." DOL asserts that the de minimis doctrine either is inapplicable or was misapplied. DOL contends that an inherent "conflict of interest" is created by placing attorneys who represent management at internal labor relations proceedings in a bargaining unit.

The Union opposes the application for review. The Union contends that: (1) the Regional Director's decision is consistent with Authority precedent concerning the use of the de minimis doctrine regarding confidential employees, (2) DOL is merely disagreeing with the Regional Director's application of the de minimis doctrine and such disagreement is not a basis for granting an application for review, and (3) no conflict of interest results from the General Attorneys' access to confidential management documents.

IV. Discussion

We conclude that compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the application for review.

We find that two substantial questions of law or policy are raised in this case because of the absence of specific Authority precedent. The first question concerns whether the General Attorneys' roles, or potential involvement, in internal labor relations and personnel work is of such a nature as to create an inherent conflict of interest between the General Attorneys' job duties and their union affiliation. The second question concerns whether the frequency or the amount of such work is a controlling factor in determining if the General Attorneys are confidential employees or perform personnel work within the meaning of the Statute.

For these reasons, we grant the application for review. In accordance with section 2422.17(g) of the Authority's Rules and Regulations, the parties may submit briefs within 10 days after issuance of this Order. Such briefs shall be limited to the two questions set forth above.

V. Order

The application for review of the Regional Director's Decision and Order on Petition for Clarification of Unit is granted. In accordance with section 2422.17(g) of the Authority's Rules and Regulations, the parties may submit briefs within 10 days after issuance of this Order. Briefs should be directed to:

Ms. Alicia Columna
Case Control Office
Federal Labor Relations Authority
Room 213
500 C Street S.W.
Washington, D.C. 20424