U.S. Department of Labor and American Federation of Government Employees, National Council of Field Labor Locals, Local 1748 (Authority decision, October 24, 1988)

Final FLRA representation decision. The Authority denies review of a regional director's unit clarification ruling, leaving four employees excluded as confidential employees. The matter involves an appropriate unit determination under 5 U.S.C. § 7112; § 7123(a)(2) excludes such orders from the ordinary 60-day judicial review provision.

Plain-English summary

The National Council of Field Labor Locals sought to include Wage and Hour Assistants and a secretary in its Department of Labor bargaining unit. A regional director found that three assistants and the secretary worked in a confidential capacity for officials who handled labor relations policy. She did not decide whether a vacant assistant position belonged in the unit. The union applied for Authority review, arguing that the confidential work was limited and that other similar positions had been included elsewhere. The Authority found no compelling reason to review the regional director's factual findings and denied the application.

Decision snapshot

• Authority: Confidential employee definition under 5 U.S.C. § 7103(a)(13).
• Outcome: Review denied; three assistants and a secretary remained outside the unit.
• Key point: The union did not show that the regional director's confidential employee findings were clearly erroneous.

Full text (FLRA public release)

[ v33 p265 ]
33:0265(30)CU

The decision of the Authority follows:

33 FLRA No. 30

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF
LABOR

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

NATIONAL COUNCIL OF FIELD LABOR
LOCALS

LOCAL 1748

7-CU-80005

7-CU-80007

ORDER DENYING APPLICATION FOR
REVIEW

October 24, 1988

Before Chairman Calhoun and Member
McKee.

I. Statement of the Case

On August 24, 1988, the Union filed a timely application for review under section 2422.17(a) of the Authority's Rules and Regulations. The Union seeks review of the Regional Director's Decision and Order on Petitions for Clarification of Unit. The Regional Director found that three Wage and Hour Assistants and a Secretary to an Assistant Regional Administrator were confidential employees within the meaning of section 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute) and should be excluded from the bargaining unit. The Agency did not file an opposition. For the reasons discussed below, we deny the application for review.

II. Regional Director's Decision

The Union is currently certified as the exclusive representative of the following consolidated nationwide unit of Department of Labor employees:

Included: All bargaining unit employees
stationed throughout the nation in field duty stations of the Department of Labor, including field stations located within the Washington, DC metropolitan area, except non-clerical employees of the Labor-Management Services Administration, employees serving in temporary appointments of less than one year's duration.

Excluded: (In accordance with Executive Order
11491, as amended): All management officials; all supervisors as defined in the Order; employees who assist and act in a confidential capacity to persons responsible for formulating and effectuating the Department's labor relations policies; employees engaged in personnel work in other than a purely clerical capacity; and employees to whom Section 3 of Executive Order 11491, as amended applies.

Regional Director's Decision at 1.

The Union's petitions seek to include certain employees in the bargaining unit on the basis that they are not confidential employees within the meaning of section 7103(a)(13). In Case No. 7-CU-80005, the Union seeks to include four Wage and Hour Assistant positions: Helen Shirk, Kansas City, Missouri; Alice Devore, Des Moines, Iowa; Belinda Campbell, St. Louis, Missouri; and a vacant position in Omaha, Nebraska. In Case No. 7-CU-80007, it seeks to include Cheryl Jordan, Secretary to the Assistant Regional Administrator for Workers Compensation Programs, in Kansas City, Missouri. The Agency opposed the CU petition contending that the employees were confidential employees within the meaning of the Statute.

The employees at issue work for the Employment Standards Administration of the U.S. Department of Labor. There are 10 regions within the Employment Standards Administration. The Kansas City Region, Region VII, encompasses Kansas, Missouri, Nebraska, and Iowa. The Kansas City Regional Office is headed by a Regional Administrator and three Assistant Regional Administrators. Each Assistant Regional Administrator oversees one of the following programs: Federal Contract Compliance, Wage and Hour, or Workers Compensation. The Wage and Hour Division has an Area Office in each of the four states which is supervised by an Area Director.

The Regional Director concluded that the three Wage and Hour Assistants in Kansas City, Des Moines and St. Louis are confidential employees. She also concluded that Authority precedent precluded her from making a determination concerning the vacant Wage and Hour Assistant position in Omaha citing Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52, 53 (1981). The Regional Director found that each of the Wage and Hour Assistants is the sole source of clerical and administrative support for an Area Director, who is the sole management point of contact for the Union in an Area Office, and has sole authority to adjust grievances and negotiate, as appropriate, at the local level. The Regional Director also found that the Wage and Hour Assistants in Kansas City and Des Moines--Helen Shirk and Alice Devore respectively-- have an integral relationship to management officials when acting in a confidential capacity to their Area Directors. The Regional Director found that the other Wage and Hour Assistant--Belinda Campbell--is expected to perform in a manner similar to her predecessor and will also develop an integral relationship to her Area Director.

The Regional Director also concluded that the Secretary to the Assistant Regional Administrator for Workers Compensation Programs--Cheryl Jordan--is a confidential employee. The Regional Director found that the Secretary (1) has an integral relationship to the Assistant Regional Administrator during his formulation and effectuation of labor-management relations policies; and (2) is the primary source of clerical and administrative support for the Assistant Regional Administrator.

III. Application for Review

The Union bases its application for review on the contentions that (1) the Regional Director's Decision is inconsistent with previous Authority rulings regarding the Wage and Hour Assistant position, and (2) the amount of actual work which is of a confidential nature is limited and does not provide a substantial basis for excluding these five positions from the bargaining unit. Union Supplemental Application at 1, 2. More particularly, in Case No. 7-CU-80005, the Union claims that the Regional Director's Decision is inconsistent with previous rulings of the Authority because "in other FLRA regions" the Wage and Hour Assistant position has been held to be within the National Council of Field Labor Locals bargaining unit. Union Supplemental Application at 1. The Union does not cite any Authority decisions to support this claim.

In Case No. 7-CU-80007, the Union argues that the Secretary to the Assistant Regional Administrator does not file confidential material, is not aware of the contents of the confidential material she files, and did not type a Memorandum of Understanding concerning the renovation of Workers Compensation office space.

IV. Analysis and Conclusion

Section 7103(a)(13) of the Statute defines a
"confidential employee" as 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 issues presented--and answered in the affirmative by the Regional Director--in these cases are: (1) whether the Assistant Regional Administrator and the Area Directors formulate or effectuate management policies in the field of labor-management relations, and (2) whether the employees in dispute act in a confidential capacity to either the Assistant Regional Administrator or the Area Directors when they are performing their duties in the field of labor-management relations. See Red River Army Depot, Texarkana, Texas, 2 FLRA 659, 660 (1980).

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) for granting the application for review. We find that no substantial question of law or policy is raised by reason of either a departure from Authority precedent or the absence of Authority precedent concerning the determination of the confidential status of employees under the Statute. The application, in essence, expresses disagreement with the Regional Director's factual findings and claims, but does not support, that she erred in her application of Authority precedent to those facts. The Regional Director's findings and decision have not been shown to be clearly erroneous or to have prejudicially affected the rights of any party.

V. Order

The application for review of the Regional Director's Decision and Order on Petitions for Clarifications of Unit is denied.

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