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06:0052(17)CU
The decision of the Authority follows:
6 FLRA No. 17
DEPARTMENT OF THE TREASURY
BUREAU OF THE MINT, U.S. MINT
DENVER, COLORADO
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 695
Labor Organization/Petitioner
Case No. 7-CU-5
DEPARTMENT OF THE TREASURY
BUREAU OF THE MINT, U.S. MINT
DENVER, COLORADO
Activity/Petitioner
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 695
Labor Organization
Case No. 7-CU-9
DECISION AND ORDER CLARIFYING UNIT
UPON PETITIONS DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING OFFICER OF
THE AUTHORITY. THE AUTHORITY HAS REVIEWED THE HEARING OFFICER'S RULINGS
MADE AT THE HEARING AND FINDS THAT THEY ARE FREE FROM PREJUDICIAL ERROR.
THE RULINGS ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE CASE, INCLUDING THE BRIEFS FILED BY
BOTH PARTIES, THE AUTHORITY FINDS: EACH PARTY FILED A PETITION FOR
CLARIFICATION OF UNIT (CU) SEEKING A DETERMINATION AS TO WHETHER CERTAIN
POSITIONS SHOULD BE EXCLUDED FROM A BARGAINING UNIT EXCLUSIVELY
REPRESENTED BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 695 (AFGE). /1/ AT THE HEARING, THE PARTIES STIPULATED THAT THE
ONLY POSITIONS IN QUESTION WERE THOSE OF CLERK-STENOGRAPHER, GS-312-04,
IN THE BUDGET AND ACCOUNTING DIVISION; PERSONNEL CLERK, GS-203-05; AND
PERSONNEL CLERK (TYPING) GS-203-05, BOTH IN THE PERSONNEL DIVISION.
HOWEVER, THE RECORD REVEALS THAT THE POSITIONS OF PERSONNEL CLERK,
GS-203-05 AND PERSONNEL CLERK (TYPING) GS-203-05, ARE CURRENTLY VACANT.
IN MAKING DECISIONS INVOLVING APPROPRIATE UNITS, THE AUTHORITY WILL NOT
RESOLVE ISSUES INVOLVING VACANT POSITIONS. IN SUCH SITUATIONS, RELIANCE
WOULD HAVE TO BE PLACED ON SUCH EVIDENCE AS WRITTEN POSITION
DESCRIPTIONS OR TESTIMONY AS TO WHAT THE DUTIES HAD BEEN OR WOULD BE,
WHICH EVIDENCE MIGHT NOT ACCURATELY REFLECT THE ACTUAL DUTIES PERFORMED
BY THE INCUMBENTS WHEN THE VACANCIES ARE FILLED. THE ACTIVITY CONTENDS
THAT THE INCUMBENTS OF THE ONLY POSITION REMAINING IN QUESTION,
CLERK-STENOGRAPHER, GS-312-04, IS A CONFIDENTIAL EMPLOYEE BECAUSE OF HER
WORK RELATIONSHIP WITH THE ACTIVITY'S BUDGET ACCOUNTING OFFICER AND
THEREFORE SHOULD BE EXCLUDED FROM THE UNIT; CONVERSELY, AFGE CONTENDS
THAT THE INCUMBENT DOES NOT ACT IN A CONFIDENTIAL CAPACITY TO ONE WHO
EFFECTUATES POLICIES RELATING TO LABOR-MANAGEMENT RELATIONS AND
THEREFORE SHOULD BE INCLUDED IN THE UNIT.
SECTION 7112(B)(2) OF THE STATUTE PROVIDES THAT A UNIT WILL NOT BE
APPROPRIATE FOR LABOR ORGANIZATION REPRESENTATION IF IT INCLUDES A
CONFIDENTIAL EMPLOYEE. 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." ACCORDINGLY, THE
ISSUES PRESENTED ARE WHETHER THE BUDGET ACCOUNTING OFFICER FORMULATES
MANAGEMENT POLICIES IN THE FIELD OF LABOR-MANAGEMENT RELATIONS, AND, IF
SO, WHETHER THE EMPLOYEE IN DISPUTE ACTS IN A CONFIDENTIAL CAPACITY TO
HIM WHEN HE IS PERFORMING HIS DUTIES IN THE FIELD OF LABOR-MANAGEMENT
RELATIONS.
THE BUDGET ACCOUNTING OFFICER HEADS THE ACTIVITY'S BUDGET AND
ACCOUNTING DIVISION AND SUPERVISES NINE UNIT EMPLOYEES INCLUDING THE
CLERK-STENOGRAPHER, GS-312-04. HE IS RESPONSIBLE FOR ADMINISTERING ALL
OPERATIONS WITHIN THE BUDGET ACCOUNTING DIVISION, WHICH INCLUDE COST
ACCOUNTING, GENERAL LEDGER, APPROPRIATION ACCOUNTING, AND PAYROLL
FUNCTIONS. THE RECORD REVEALS THAT THE BUDGET ACCOUNTING OFFICER
ATTENDS WEEKLY GENERAL STAFF MEETINGS; IS RESPONSIBLE FOR HIRING,
PROMOTIONS, ADVERSE ACTIONS, DISCIPLINARY ACTION AND TRAINING NEEDS
WITHIN HIS DIVISION; AND SERVES ON A PERSONNEL UTILIZATION COMMITTEE
WHICH MANAGES THE USE OF EMPLOYEES IN VARIOUS JOBS AT THE ACTIVITY. THE
RECORD FURTHER ESTABLISHES THAT HE HAS BEEN ON A TASK FORCE INVOLVING A
POTENTIAL REORGANIZATION OF THE ACTIVITY WHICH NEVER MATERIALIZED, AND
HAS SERVED ON ANOTHER COMMITTEE CONCERNED WITH THE ANNUAL TEMPORARY
SHUTDOWN OF THE ACTIVITY'S OPERATIONS. HOWEVER, ACCORDING TO THE
RECORD, THE BUDGET ACCOUNTING OFFICER HAS NEVER RESPONDED TO A FORMAL
GRIEVANCE, IS NOT A MEMBER OF THE LOCAL LABOR MANAGEMENT COMMITTEE, HAS
NEVER SAT ON A MANAGEMENT NEGOTIATING TEAM, AND DOES NOT FORMULATE OR
EFFECTUATE MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS.
THE DUTIES OF THE CLERK-STENOGRAPHER INCLUDE THE PERFORMANCE OF ALL
THE BUDGET ACCOUNTING OFFICER'S TYPING, HANDLING OF PHONE MESSAGES, AND
DISTRIBUTION OF INCOMING MAIL. THE RECORD INDICATES THAT THE
CLERK-STENOGRAPHER HAS NEVER TYPED OR HANDLED MATERIALS RELATING TO
CONTRACT NEGOTIATIONS OR ANY OTHER LABOR RELATIONS MATTERS. WHILE THE
RECORD INDICATES THAT SHE HAS ACCESS TO ALL OF THE BUDGET ACCOUNTING
OFFICER'S FILES, INCLUDING THOSE SHE CONSIDERS CONFIDENTIAL IN NATURE,
THE FILES DO NOT CONTAIN MATERIALS INVOLVING LABOR RELATIONS MATTERS.
BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT THE
CLERK-STENOGRAPHER IS NOT A CONFIDENTIAL EMPLOYEE WITHIN THE MEANING OF
SECTION 7103(A)(13) OF THE STATUTE. THUS, THE EVIDENCE ESTABLISHES THAT
THE BUDGET ACCOUNTING OFFICER DOES NOT FORMULATE OR EFFECTUATE
MANAGEMENT POLICIES IN THE FIELD OF LABOR-MANAGEMENT RELATIONS, AND THAT
THE CLERK-STENOGRAPHER DOES NOT ACT IN A CONFIDENTIAL CAPACITY TO SUCH
AN INDIVIDUAL. ACCORDINGLY, THE AUTHORITY FINDS THAT THE
CLERK-STENOGRAPHER, GS-312-04, SHOULD BE INCLUDED IN THE EXCLUSIVELY
RECOGNIZED UNIT. /2/
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED, IN WHICH
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 695, WAS
CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE FOR A CONSOLIDATED UNIT ON MAY
15, 1980, BE AND HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT THE
POSITION OF CLERK-STENOGRAPHER, GS-312-04.
ISSUED, WASHINGTON, D.C., JUNE 11, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ ON MAY 15, 1980, AFGE WAS CERTIFIED AS EXCLUSIVE REPRESENTATIVE
FOR A CONSOLIDATED UNIT CONSISTING OF ALL PROFESSIONAL AND
NON-PROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF THE TREASURY, BUREAU OF
THE MINT, INCLUDING SPECIAL POLICE AND GUARDS, EXCLUDING SPECIAL POLICE
AND GUARDS ASSIGNED TO THE PHILADELPHIA MINT, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, CONFIDENTIAL EMPLOYEES, AND SUPERVISORS.
/2/ SEE HEADQUARTERS, FORT SAM HOUSTON, FORT SAM HOUSTON, TEXAS, 5
FLRA NO. 46(1981); RED RIVER ARMY DEPOT, TEXARKANA, TEXAS, 2 FLRA NO.
82(1980).