United States Environmental Protection Agency, Region IX and NFFE Local 1 (Authority decision, October 26, 1984)

Final FLRA decision. The Authority clarifies a bargaining unit by deciding which positions are included. This is an appropriate unit determination under 5 U.S.C. § 7112. Section 7123(a)(2) excludes such an order from judicial review in a court of appeals.

Plain-English summary

NFFE Local 1 sought clarification of whether five EPA Region IX employees belonged in its nonprofessional bargaining unit. The Authority found three employees worked confidentially for managers who formulated or carried out labor relations policy, so it excluded them. It kept two other employees in the unit because their supervisors did not perform that policy role; occasional typing of labor relations documents did not alone make those employees confidential. The outcome is marked other because the Authority decided an original unit clarification petition, with no Regional Director decision to affirm or set aside.

Decision snapshot

• Authority: 5 U.S.C. §§ 7103(a)(13) and 7111(b)(2).
• Outcome: Three employees excluded from the unit; two included.
• Key point: Confidential status requires a work relationship with someone who shapes labor relations policy, not mere access to related documents.

Full text (FLRA public release)

[ v16 p273 ]

16:0273(39)CU

The decision of the Authority follows:

16 FLRA No. 39

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, REGION IX
SAN FRANCISCO, CALIFORNIA
Activity

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1, INDEPENDENT
Petitioner

Case No. 9-CU-30012

DECISION AND ORDER CLARIFYING UNIT

Upon a petition duly filed with the Authority under section 7111(b)(2) of the Federal Service Labor-Management Relations Statute (the Statute), a hearing was held before a hearing officer of the Authority. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.

Upon careful consideration of the entire record, including the parties' contentions, the Authority finds: The National Federation of Federal Employees, Local 1, Independent (NFFE) was certified as the exclusive representative for a unit of all nonprofessional employees of Region IX, United States Environmental Protection Agency. Essentially, the petition seeks to clarify the bargaining unit status of Ladora Duncan, Secretary, GS-318-06; John Noah, Clerk-Typist, GS-322-04; Lourdes Paredes, Secretary, GS-318-06; Valarie Williams, Personnel Clerk, GS-203-05; and Roberta Romine, Management Assistant, GS-344-05, whom the Activity contends should be excluded from the unit on the grounds that they fall within one or more of the following categories: confidential employees, supervisors, management officials or employees engaged in personnel work in other than a purely clerical capacity. Noah and Williams are alleged to be only confidential employees.

The Activity contends that all five of the employees involved are, among other things, confidential employees within the meaning of 7103(a)(13) of the Statute and should be excluded from the unit. /1/

Lourdes Paredes is secretary to Frank Covington, Director of the Water Management Division. Covington approves all personnel actions in the division, deals with the union on day-to-day problems and is a member of several management committees which in the context of contract negotiations discuss union proposals, strategy and management counterproposals. Paredes, in the course of her duties, types personnel actions such as adverse actions, promotions, memoranda and notes related to personnel actions; maintains a file concerning personnel actions and attends division staff meetings where personnel actions, grievances, reorganizations and labor-relations matters are discussed.

Ladora Duncan is a secretary to Jim Thompson, Director of the Administrative Services Division. Thompson is a member of several management committees which in the context of contract negotiations discuss union proposals, strategy and management counterproposals and he assumed the duties of the Labor Relations Officer when the position was vacant. Duncan, in the course of her duties, types personnel actions, adverse actions, grievances and performance appraisals and attends branch meetings where she takes notes of the proceedings which deal with, among other things, labor relations problems.

Roberta Romine works for Dick Coddington, the Deputy Director of the Water Management Division. Coddington assists Covington in making personnel and other decisions affecting the division, drafts adverse actions and other personnel documents and deals on a daily basis with the Union concerning labor relations problems in the division. Romine, in the course of her duties, maintains all personnel files and files containing adverse actions, grievances and unsatisfactory or minimally satisfactory performance appraisals; prepares documents for the above files; is involved with dealing with the Union on day-to-day problems such as space management and attends and participates in branch meetings involving grievances and labor relations problems.

Based on the record testimony discussed above, the Authority finds that the employees described above are confidential employees within the meaning of section 7103(a)(13) of the Statute. In so finding the Authority concludes that each of the individuals works in a confidential capacity to an individual who formulates or effectuates management policies in the field of labor-management relations. /2/ Accordingly, the Authority shall exclude Paredes, Duncan, and Romine from the bargaining unit. /3/

The record further indicates that John Noah, who works for Mark Hemry, Personnel Management Specialist and Valarie Williams, who works for Terry Simmons, Personnel Assistant are not confidential employees within the meaning of section 7103(a)(13) and must remain in the bargaining unit. The record indicates that the individuals for whom Noah and Williams work the majority of the time do not formulate or effectuate management policies in the field of labor-management relations. /4/ While it is true that from time to time the employees in question type documents pertaining to grievances and labor relations matters, it is well settled that neither typing nor mere access to labor relations materials is sufficient to establish confidential status. /5/

ORDER

IT IS ORDERED that the unit sought to be clarified be, and it hereby is, clarified by excluding from said unit Lourdes Paredes, Secretary, GS-318-06; Ladora Duncan, Secretary, GS-318-06; and Roberta Romine, Management Assistant, GS-344-05 and by including in said unit John Noah, Clerk-Typist, GS-322-04; and Valarie Williams, Personnel Clerk, GS-203-05. Issued, Washington, D.C., October 26, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ Section 7103(a)(13) defines "confidential employee" as:

an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations(.)

/2/ See Food and Drug Administration, Region I, 6 FLRA 229 (1981).

/3/ It is therefore unnecessary to pass upon the Activity's contentions that these employees should be excluded from the unit on the basis that they are either supervisors, management officials, or engaged in personnel work in other than a purely clerical capacity.

/4/ Headquarters, 1947 Administrative Support Group, U.S. Air Force, Washington, D.C., 14 FLRA No. 43 at 6 (1984).

/5/ Id.