Veterans Administration Medical Center, Prescott, Arizona and American Federation of Government Employees, Local 2401 (Authority decision, October 30, 1987)

Final FLRA decision. The Authority denies review of a regional unit-clarification decision that included two positions in a bargaining unit. Orders involving appropriate-unit determinations under 5 U.S.C. § 7112 are excluded from the ordinary judicial-review provision by 5 U.S.C. § 7123(a)(2).

Plain-English summary

AFGE Local 2401 sought to include a personnel staffing assistant and a personnel actions clerk at the Prescott VA medical center in its bargaining unit. A Regional Director found their actual duties were clerical and included both positions. The medical center sought review, arguing that some duties were substantive personnel work and that the director had misapplied precedent. The Authority found no compelling reason to review the decision. It held that eligibility depended on duties actually performed at the hearing, and that the medical center had not shown clear error in the director's findings.

Decision snapshot

• Authority: Personnel-work exclusion under 5 U.S.C. § 7112(b)(3); regional review rule under 5 C.F.R. § 2422.17(c).
• Outcome: Application for review denied; regional decision including the two positions stands.
• Key point: Unit eligibility was assessed from the employees' actual duties, not duties they might perform later.

Full text (FLRA public release)

[ v29 p1313 ]
29:1313(104)CU

The decision of the Authority follows:

29 FLRA NO. 104

VETERANS ADMINISTRATION MEDICAL
CENTER, PRESCOTT, ARIZONA

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2401, AFL-CIO

Union/Petitioner

Case No. 8-CU-70005

ORDER DENYING APPLICATION FOR REVIEW

I. Statement of the Case

This case is before the Federal Labor Relations Authority on an application filed by the Activity under section 2422.17(a) of the Authority's Rules and Regulations seeking review of the Regional Director's Decision and Order on the Union's Petition for Clarification of Unit.

II. Regional Director's Decision

The Union's petition seeks to clarify the composition of the national consolidated nonprofessional unit located at the Veterans Administration Medical Center in Prescott, Arizona to include two employees occupying the positions of Personnel Staffing Assistant (Typing), GS-4-0203, and Personnel Actions Clerk (Typing), GS-5-0203.

The Regional Director concludes that the employees in these positions should be in the bargaining unit. He finds that there is insufficient evidence to establish that they are engaged in Federal personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3). He finds that their involvement in personnel matters is purely clerical in nature in that they perform their duties within prescribed guidelines and regulations which require little, if any, independent discretion or judgment. In support of this determination, the Regional Director cites United States Environmental Protection Agency, Region III, 11 FLRA 354 (1983); and Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 5 FLRA 339 (1981). He notes that his determination regarding the Personnel Staffing Assistant position is based on the nature of the actual duties performed at the time of the hearing on the petition rather than on position titles or anticipated performance of duties citing Federal Trade Commission, 15 FLRA 247 (1984); and Veterans Administration Medical Center, Tucson, Arizona, Case No. 8-CU-40001 (1984) (unpublished).

III. Application for Review

The Activity contends 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. It argues that the Regional Director's decision raises a substantial question of law because: 1) there is an absence of Authority precedent concerning an employee who is new to a position and has not performed the full range of duties assigned to the position; and 2) the Regional Director departs from Authority precedent involving positions with similar duties in Environmental Protection Agency, Region VIII, Kansas City, Missouri, 14 FLRA 25 (1984) and Defense Mapping Agency, Hydrographic/ Topographic Center, Providence Field Office, 13 FLRA 407 (1983). In addition, the Activity argues the Regional Director erred as to a matter of law because: 1) including the disputed positions in the bargaining unit interferes with management's right to assign work under section 7106(a)(2)(B) in that substantive personnel duties will have to be performed by bargaining unit members; and 2) determining what percent of the duties actually performed by these employees involves substantive personnel work conflicts with the language of section 7112(b)(3) because "engaged in personnel work in other than a purely clerical capacity" means performing any substantive personnel work and does not mean a specified amount. Finally, the Activity contends that allowing the Regional Director's decision to stand will generate multiple clarification of unit petitions, which is against public policy.

IV. Analysis and Conclusion

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) for granting the Activity's application for review. In particular, we find that no substantial question of law or policy is raised by reason of an absence of Authority precedent where an employee at the time of the hearing has not actually performed the full range of duties in the position description. Authority precedent clearly establishes that a bargaining unit eligibility determination is not based on evidence such as a written position description or testimony as to what duties had been or would be performed by an employee occupying a certain position because such evidence might not reflect the actual duties performed by the incumbent employee. Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52, 53 (1981).

The Authority bases a bargaining unit eligibility determination on record testimony as to what duties actually are performed by an employee at the time of the hearing rather than what may exist in the future. See Equal Employment Opportunity Commission, Philadelphia District Office, FLRA Report No. 369 (May 30, 1986) (determination concerning a vacant position cannot be made as the Authority can only make an eligibility determination by having before it record testimony by the incumbent or the incumbent's supervisor as to what duties actually are performed by the incumbent); U.S. Army Engineer Topographic Laboratories, Fort Belvoir, Virginia, 10 FLRA 125, 127 n.3 (1982) (incumbent employees, who were expected to perform certain duties sometime in the future, were not management officials because they were not performing such duties at the time of the hearing); Department of the Navy, Naval Ocean Systems Center, San Diego, California, 8 FLRA 649, 650 n.3 (1982) (wage grade employees included in a bargaining unit with general schedule employees based on personnel policies and practices existing at time of the hearing).

We also find that no substantial question of law or policy is raised by reason of a departure from Authority precedent. In the cases cited by the Activity as examples of the Regional Director's failure to follow Authority precedent--Environmental Protection Agency, Region VIII and Defense Mapping Agency, Hydrographic/Topographic Center--the Authority based its eligibility determinations on record evidence as to the duties actually performed by incumbents at the time of the hearing and found that employees in the Personnel Assistant (Typing) position, GS-203-06, were engaged in nonclerical Federal personnel work. In the present case, the Regional Director found that there is insufficient record evidence to establish that the employees in the disputed positions are engaged in Federal personnel work in other than a purely clerical capacity. In our view, the Activity expresses mere disagreement with the Regional Director's findings which are based on record evidence and has not shown such findings to be clearly erroneous or to have prejudicially affected the rights of any party.

Finally, the Activity's arguments concerning errors by the Regional Director in matters of law and questions of public policy are not grounds for granting an application for review under section 2422.17(c) of the Authority's regulations. 1 The Authority may grant an application for review only where a compelling reason exists based on the four specific grounds set forth in section 2422.17(c). United States Department of Justice, Immigration and Naturalization Service, Western Regional Office, 20 FLRA 70, 75-76 (1985).

V. Order

The application for review of the Regional Director's decision and order on the Union's petition for clarification of unit is denied.

Issued, Washington, D.C., October 30, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier, Member

Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

Footnotes:

Footnote 1: Section
2422.17 (c) provides:
(c) The Authority may grant an application for
review only where it appears that compelling reasons exist therefor. Accordingly, an application for review may be granted only upon one or more of the following grounds: (1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, Authority precedent; (2) That there are extraordinary circumstances warranting reconsideration of an Authority policy; (3) That the conduct of the hearing held or any ruling made in connection with the proceeding has resulted in prejudicial error; or (4) That the Regional Director's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of a party.