U.S. Department of Commerce, Maritime Administration, U.S. Merchant Marine Academy and American Federation of Government Employees, Local 2116 (Authority decision, June 14, 1979)

Final FLRA decision under Executive Order 11491. The Authority decided the Academy's unit-clarification petition and excluded one position from the bargaining unit. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

The U.S. Merchant Marine Academy asked whether the academic dean's secretary should remain in the nonprofessional employee unit represented by AFGE Local 2116. The dean handled labor policy, contract negotiations, grievances, and personnel actions, while the secretary prepared related documents and had access to sensitive files. The Authority found the position confidential in labor relations and excluded it from the unit. The outcome is classified as other because this was an original unit-clarification petition, with no Regional Director decision under review.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, § 6.
• Outcome: The bargaining unit was clarified to exclude the academic dean's secretary.
• Key point: The position's access to labor relations policy and negotiations made it confidential for unit purposes.

Full text (FLRA public release)

[ v01 p539 ]

01:0539(61)CU

The decision of the Authority follows:

1 FLRA No. 61

U.S. DEPARTMENT OF COMMERCE,
MARITIME ADMINISTRATION,
U.S. MERCHANT MARINE ACADEMY
Activity/Petitioner

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2116, AFL-CIO
Labor Organization

Assistant Secretary
Case No. 30-08598(CU)

DECISION AND ORDER CLARIFYING UNIT

UPON A PETITION FOR CLARIFICATION OF UNIT DULY FILED UNDER SECTION 6
OF EXECUTIVE ORDER 11491, AS AMENDED, A HEARING WAS HELD BEFORE HEARING
OFFICER ELEANORE S. GOLDBERG ON JANUARY 25, 1979.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, IN A
MATTER SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER
SECTION 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH
TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE
AUTHORITY'S TRANSITION RULES AND REGULATIONS. THE AUTHORITY CONTINUES
TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).

THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE HEARING OFFICER MADE AT THE HEARING AND
FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED.

UPON THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY FURTHER FINDS:

THE ACTIVITY (THE ACADEMY) FILED A PETITION FOR CLARIFICATION OF UNIT
TO DETERMINE WHETHER THE POSITION OF SECRETARY TO THE ASSISTANT
SUPERINTENDENT OF ACADEMIC AFFAIRS (ALSO KNOWN AS THE ACADEMIC DEAN)
SHOULD BE EXCLUDED FROM A UNIT OF NONPROFESSIONAL CIVILIAN EMPLOYEES
REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2116, AFL-CIO (AFGE LOCAL 2116). /1/ THE BASIS ASSERTED FOR THE
EXCLUSION IS THAT THE INCUMBENT SERVES IN A CONFIDENTIAL CAPACITY TO AN
OFFICIAL DIRECTLY INVOLVED IN THE FORMULATION AND EFFECTUATION OF LABOR
RELATIONS POLICY.

THE MISSION OF THE ACADEMY IS TO TRAIN INDIVIDUALS TO SERVE AS
OFFICERS IN THE UNITED STATES MERCHANT MARINE. THE ACADEMIC DEAN IS
RESPONSIBLE TO THE SUPERINTENDENT OF THE ACADEMY FOR ALL MATTERS RELATED
TO THE ACADEMY'S CURRICULUM. IN THE TEN ACADEMIC DEPARTMENTS UNDER THE
SUPERVISION OF THE ACADEMIC DEAN, THERE ARE APPROXIMATELY 32 SUPPORT
EMPLOYEES IN THE NONPROFESSIONAL UNIT REPRESENTED BY AFGE LOCAL 2116,
AND APPROXIMATELY 78 FACULTY MEMBERS IN A UNIT OF PROFESSIONALS
REPRESENTED BY AFGE LOCAL 3732. THE DEAN HAS BROAD GENERAL
RESPONSIBILITY FOR BOTH PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN
SUCH AREAS AS GRIEVANCE HANDLING, PERFORMANCE APPRAISALS, AWARDS,
DISCIPLINARY ACTIONS, PROMOTIONS AND TRAINING. THE DEAN ALSO IS A
MEMBER OF THE ACADEMY'S POLICY BOARD, CONSISTING OF THE SUPERINTENDENT
AND OTHER SENIOR OFFICIALS, WHICH MEETS WEEKLY TO DISCUSS MATTERS OF
INTEREST TO MANAGEMENT, INCLUDING PERSONNEL PRACTICES AND GENERAL LABOR
RELATIONS POLICY. FURTHER, THE RECORD REVEALS THAT HE HAS BEEN DIRECTLY
RESPONSIBLE FOR CONTRACT NEGOTIATIONS AND VARIOUS GRIEVANCE AND
DISCIPLINARY ACTIONS RELATING TO THE PROFESSIONAL UNIT.

THE RESPONSIBILITIES OF THE SECRETARY TO THE ACADEMIC DEAN INCLUDE
REVIEWING ALL INCOMING MAIL, TYPING AND PREPARING ALL CORRESPONDENCE AND
DOCUMENTS CONCERNING CONTRACT NEGOTIATIONS, BUDGET MATTERS, LABOR
RELATIONS POLICY AND PERSONNEL MATTERS WITH WHICH THE DEAN IS INVOLVED,
AND MONITORING ACCESS TO LOCKED FILES CONTAINING SENSITIVE INFORMATION
RELATED TO THESE SUBJECTS.

UNDER THESE CIRCUMSTANCES, IT IS CONCLUDED THAT THE SECRETARY TO THE
ACADEMIC DEAN WORKS WITH AND HAS REGULAR ACCESS TO CONFIDENTIAL LABOR
RELATIONS MATERIALS AND ACTS IN A CONFIDENTIAL CAPACITY TO AN OFFICIAL
INVOLVED IN THE FORMULATION AND EFFECTUATION OF THE ACTIVITY'S LABOR
RELATIONS POLICIES. /2/ ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE
INCUMBENT BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT ON THE BASIS
OF CONFIDENTIAL STATUS. /3/

ORDER

IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2116, AFL-CIO, ON NOVEMBER 16, 1976, BE, AND
IT HEREBY IS, CLARIFIED BY EXCLUDING FROM SAID UNIT THE SECRETARY TO THE
ASSISTANT SUPERINTENDENT FOR ACADEMIC AFFAIRS.

ISSUED, WASHINGTON, D.C., JUNE 14, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ AFGE LOCAL 2116 HOLDS EXCLUSIVE RECOGNITION FOR ALL EMPLOYEES AT
THE U.S. MERCHANT MARINE ACADEMY EXCEPT THE FOLLOWING:

1. PROFESSIONAL EMPLOYEES INCLUDING MEMBERS OF THE FACULTY,
   LIBRARIANS AND STAFF NURSES.

2. EMPLOYEES OCCUPYING MANAGEMENT AND STAFF POSITIONS INCLUDING THE
   SUPERINTENDENT; THE

SPECIAL ASSISTANT TO THE SUPERINTENDENT; THE EXECUTIVE OFFICER AND
ASSISTANT

SUPERINTENDENT; THE ADMINISTRATIVE OFFICER; THE DEAN; THE
ASSISTANT DEAN; THE ALUMNI

OFFICER; THE PUBLIC INFORMATION OFFICER; THE REGISTRAR-EDUCATIONAL
SERVICES OFFICER; THE

ASSISTANT REGISTRAR; DEPARTMENT HEADS, AND ASSISTANT DEPARTMENT
HEADS.

/2/ ALTHOUGH CONFIDENTIAL EMPLOYEES ARE NOT SPECIFICALLY BARRED BY
SECTION 10(B) OF THE ORDER FROM BEING INCLUDED WITH OTHER EMPLOYEES IN
AN APPROPRIATE UNIT, THE ASSISTANT SECRETARY HAS DETERMINED THAT IT
WOULD BEST EFFECTUATE THE POLICIES OF THE ORDER TO EXCLUDE FROM
BARGAINING UNITS EMPLOYEES WHO ASSIST AND ACT IN A CONFIDENTIAL CAPACITY
TO PERSONS WHO FORMULATE AND EFFECTUATE MANAGEMENT LABOR RELATIONS
POLICY. VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH BATTALION, 111TH
ARTILLERY, 1 A/SLMR 332, 335, A/SLMR NO. 69(1971).

/3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR THE APPLICATION OR RELATED PROVISIONS IN THE NEW STATUTE OR
THE RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD
ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.