U.S. Department of Housing and Urban Development, Washington, D.C. and American Federation of Government Employees, Local 476 (Authority decision, January 12, 1990)

FLRA representation decision. The Authority grants review and invites further briefing. It does not decide whether the four employees belong in the bargaining unit. This interlocutory order does not start a judicial-review period for a final order.

Plain-English summary

AFGE sought to add several HUD employees to its nationwide bargaining unit, and a regional director included four employees whose status HUD contested. The Authority found that the regional director had not addressed HUD's claimed statutory exclusions for one employee or made specific findings for three employees claimed to be confidential. Those omissions prevented meaningful review and prejudiced HUD's rights. The Authority granted HUD's application for review and invited briefs on the four employees' duties. It did not decide their unit eligibility.

Decision snapshot

• Authority: Unit exclusions under 5 U.S.C. §§ 7103(a)(13) and 7112(b)(3)-(4); review under 5 C.F.R. § 2422.17.
• Outcome: Application for review granted; briefs invited within 10 days.
• Key point: Missing findings about claimed unit exclusions warranted further review.

Full text (FLRA public release)

[ v34 p290 ]
34:0290(53)CU

The decision of the Authority follows:

34 FLRA NO. 53

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WASHINGTON, D.C. (Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 476 (Labor Organization/Petitioner)

3-CU-80031
3-CU-80032

ORDER GRANTING APPLICATION FOR REVIEW

January 12, 1990

Before Chairman McKee and Member Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the U.S. Department of Housing and Urban Development, Washington, D.C. (the Agency) under section 2422.17(a) of the Authority's Rules and Regulations. The Agency seeks review of the Regional Director's decision and order on petitions filed by the American Federation of Government Employees, Local 476, (AFGE) under section 7111(b)(2) of the Federal Service Labor - Management Relations Statute (the Statute). AFGE did not file an opposition to the application for review.

AFGE is the exclusive representative of a consolidated nationwide bargaining unit of the Agency's nonprofessional employees. AFGE's petitions sought to clarify the unit to include numerous employees. The Agency seeks review only as to the Regional Director's determinations that four employees should be included in the unit. For the reasons set forth below, we grant the Agency's application.

II. Regional Director's Decision and the Agency's Application for Review

With respect to the four employees involved in the application for review, the Agency argued before the Regional Director that they should be excluded from the unit. The Regional Director found that the four employees should be included in the unit.

The Regional Director found that Hannah Klein is not a management official and included her in the unit. The Agency asserts that it did not contend that Klein should be excluded from the unit because she was a management official, but rather that she should be excluded because she is: (1) an employee engaged in personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3) of the Statute; and/or (2) an employee engaged in administering the provisions of the Statute within the meaning of section 7112(b)(4). The Agency contends that compelling reasons exist under section 2422.17(c) of our Regulations for granting review because the Regional Director did not address these contentions.

The Regional Director rejected the Agency's contentions that Kay Frances Beam, Idress Klemmer, and Jacqueline E. Pinnix are confidential employees within the meaning of section 7103(a)(13) of the Statute, and he included them in the unit. The Regional Director did not make specific findings as to each of these employees. The Agency contends that compelling reasons exist under section 2422.17(c) of our Regulations for granting review as to these three employees because the Regional Director either did not consider certain testimony or misapplied the facts to precedent.

III. Discussion

We conclude that the Agency has established that compelling reasons exist for granting the application for review.

As to Klein, the Regional Director's failure to consider the Agency's contentions that she should be excluded from the unit under section 7112(b) and (4) has prejudicially affected the Agency's rights within the meaning of section 2422.17(c)(4) of our Rules and Regulations.

Because the Regional Director did not make specific findings as to Beam, Klemmer, and Pinnix, we cannot determine either whether he considered the record evidence that the Agency alleges was overlooked or whether he misapplied the facts to precedent. In these circumstances, we find that the Regional Director's failure to make specific findings as to Beam, Klemmer, and Pinnix has prejudicially affected the Agency's rights within the meaning of section 2422.17(c)(4) of our Rules and Regulations.

IV. Order

The Agency's application for review is granted. In accordance with section 2422.17(g) of the Authority Rules and Regulations, the parties may, within 10 days after issuance of this order, submit briefs on the following issues:

(1) Whether Hannah Klein is (a) an employee engaged in personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3), and/or (b) an employee engaged in administering the provisions of the Statute within the meaning of section 7112(b)(4); and

(2) Whether Kay Frances Beam, Idress Klemmer, and Jacqueline E. Pinnix are confidential employees within the meaning of section 7103(a)(13) of the Statute.

Briefs should be directed to:

Ms. Alicia Columna
Case Control Office
Federal Labor Relations Authority
500 C Street, SW.
Washington, D.C. 20424