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23:0768(99)CU
The decision of the Authority follows:
23 FLRA No. 99
832nd COMBAT SUPPORT GROUP
LUKE AIR FORCE BASE, ARIZONA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1547, AFL-CIO
Petitioner
Case No. 8-CU-50011
DECISION AND ORDER
I. Statement of the Case
This case is before the Authority as a result of our order granting
the application for review of the Regional Director's Decision and Order
on Petition for Clarification of Unit filed by the 832nd Combat Support
Group, Luke Air Force Base, Arizona (Activity). In his Decision, the
Regional Director found that four employees who serve as "collateral
duty EEO counselors" should not be excluded from the bargaining unit
pursuant to section 7112(b)(3) of the Statute. /1/
The Authority granted the application for review on the basis that it
appeared that a compelling reason existed pursuant to the provisions of
section 2422.17(c)(1) of the Authority's Rules and Regulations. /2/ The
parties were given an opportunity to file briefs with the Authority;
neither party did so. Based on our decision below, we order those
employees serving as "collateral duty EEO counselors" to be included in
the bargaining unit.
II. Background
The Equal Employment Opportunity (EEO) program function at Luke Air
Force Base operates pursuant to Air Force Regulation 40-1613 and is
organizationally located within the Activity's civilian personnel
officed. It is headed by a Chief EEO Counselor, a full-time staff
position. The Chief EEO Counselor's function is to manage the EEO
program, coordinating both counseling and complaint case processing
activities. To administer the pre-complaint or counseling phase of the
program, the Activity utilizes four EEO counselors who are referred to
as "collateral duty EEO counselors" inasmuch as they perform their
counseling duties on an "as needed" basis, in addition to their regular
or primary duty assignments.
The candidates for "collateral duty EEO counselor" are interviewed by
the Chief EEO Counselor who recommends those to be considered for
selection by the Activity's Commander. The "collateral duty EEO
counselor" does not serve for a fixed period of time, but may be
terminated at any time by the Activity without complying with adverse
action regulations. The "collateral duty EEO counselor" also may choose
to terminate his or her own assignment at any time by declining to serve
further. EEO counseling is not the employee's primary employment
function. Neither the appointment as a counselor nor the counseling
duties are grade controlling. For their EEO duties, the "collateral
duty EEO counselors receive technical guidance and review from the Chief
EEO Counselor, but continue to receive supervision and evaluation from
their regular supervisors. The "collateral duty EEO counselors" are
selected from a broad cross-section of the Activity's components so as
to be accessible to and better serve all employees.
The primary function of these counselors is to counsel employees in
the pre-complaint stage. In fulfilling this function the counselors
develop factual information through discussions with supervisors,
management officials and otherr employees; conduct research into
confidential personnel records where necessary; attempt informal
resolution of complaints by providing advice and counsel to complainants
and management officials; provide final narrative reports of counseling
to the Chief EEO Counselor; and assist the complainant in preparing and
filing formal EEO complaints on an "as needed" basis. The sensitive
nature of the subject matter requires these "collateral duty EEO
counselors" to maintain a strictly neutral posture. They are
responsible for safeguarding the rights and confidentiality of both the
complainant and the alleged discriminating official. As the "collateral
duty EEO counselors" perform duties that are considered to be a bridge
between management and the employees, they are neither aligned with or
perceived to be aligned with management or the employees, but rather are
identified with the goals and purposes of the EEO program.
The record further reveals that by specific addendum to their
individual job descriptions, two of the incumbents are limited to
spending no more than 20 percent of their duty time and the other two
incumbents are limited to spending no more than 10 percent of their duty
time performing EEO counseling functions.
III. Regional Director's Determination
The Regional Director concluded in his Decision and Order on Petition
for Clarification of Unit that the four employees who serve as
"collateral duty EEO counselors" should not be excluded from the
bargaining unit pursuant to section 7112(b)(3) of the Statute. The
Regional Director found, pursuant to the Authority's Decision in
Department of the Air Force, Headquarters, San Antonio Air Logistics
Center, Kelly Air Force Base, Texas, 3 FLRA 209 (1980), that the duties
performed by the "collateral duty EEO counselors" fell within the scope
of personnel work in other than a purely clerical capacity. He also
found that as the "collateral duty EEO counselors" only spend 10 or 20
percent of their official duty time performing these duties, the
character and extent of involvement in personnel matters was not such
that it warranted their exclusion from the bargaining unit. Therefore,
he ordered that the unit description be clarified to include the four
named "collateral duty EEO counselors."
IV. Positions of the Parties
In its application for revied, the Activity agrees with the Regional
Director's finding that the "collateral duty EEO counselors" are
performing duties which constitute personnel work in other than a purely
clerical capacity within the meaning of section 7112(b)(3) of the
Statute. The Activity contends that the purpose of section 7112(b)(3),
as stated by the Authority in Office of Personnel Management, 5 FLRA 238
(1981), is to preclude the conflict of interest that would arise between
the performance of Federal personnel work and union representation. The
Activity argues that because the "collateral duty EEO counselors" are
appointed by the Activity's Commander and are in effect his eyes and
ears, have access to confidential files and records, and interview
supervisors and management officials, a conflict of interest exists
between their EEO duties and their union representation. Consequently,
the Activity argues that the Regional Director erred when he considered
the percentage of work time spent by the "collateral duty EEO
counselors," and contends that the asserted conflict of interest created
by their involvement in EEO counseling for 10 or 20 percent of their
work time in this case is no less significant than the conflict created
by the use of 100 percent of work time by the Equal Opportunity
Specialists at issue in Kelly Air Force Base.
V. Analysis
The Authority agrees with the conclusions of the Regional Director
that the "collateral duty EEO counselors" should be included in the
bargaining unit. We disagree, however, with the Regional Director's
finding that the counselors are engaged in Federal personnel work in
other than a purely clerical capacity within the meaning of section
7112(b)(3) of the Statute.
The Authority has held that an employee is engaged in personnel work
in other than a purely clerical capacity within the meaning of section
7112(b)(3) of the Statute if the employee is directly involved in
performing personnel work that may affect employees in the unit and
making recommendations to management concerning such personnel actions.
Employees found to have been engaged in personnel work have been
involved in work directly relating to the personnel operations of the
employee's agency which would create a conflict of interest between the
employee's job and union representation if the employee were included in
the bargaining unit. See Social Security Administration, 17 FLRA 239
(1985); Environmental Protection Agency, Region VII, Kansas City,
Missouri, 14 FLRA 25 (1984); Veterans Administration, Washington, D.C.,
11 FLRA 176 (1983); and Department of Health and Human Services, Region
X, Seattle, Washington, 9 FLRA 518 (1982). This is not the case here.
As noted by the Regional Director, the Authority in Kelly Air Force
Base, upheld the Judge's findings that the employees in the job
classification Equal Opportunity Specialist, GS-160-07, 09 and 11 should
be excluded from the bargaining unit as they were engaged in personnel
work in other than a purely clerical capacity. In so finding, the Judge
noted that these employees who functioned as EEO counselors on a
full-time basis were assigned to and worked out of the Activity's
personnel office. Further, he found that in the course of their EEO
counseling duties, they were privy to confidential personnel files and
other confidential information.
The Authority finds in the circumstances of this case that the
"collateral duty EEO counselors" are not engaged in Federal personnel
work within the meaning of section 7112(b)(3) of the Statute. The very
nature of the position of the "collateral duty EEO counselors" clearly
distinguishes these employees from the full-time EEO counselors found in
Kelly Air Force Base. Thus, the record indicates that the "collateral
duty EEO counselors" are selected by the Activity's Commander for a term
of unspecified duration and can be removed at any time without complying
with adverse action regulations, or on their own volition can terminate
their assignments. Although EEO duties and responsibilities are
described in their official position descriptions, the duties do not
constitute their primary employment purpose and neither the assignment
as a counselor nor the counselling duties are grade controlling. The
"collateral duty EEO counselors" are not assigned to the Activity's
personnel office and receive only technical guidance and review from the
Chief EEO Counselor. During the course of their EEO appointments, the
"collateral duty EEO counselors" continue to be supervised by their
individual supervisors who maintain organizational and operational
control over them at all times. The "collateral duty EEO counselors"
are considered neutral and a bridge between management and the
employees, they are not viewed as being aligned with either group. In
summary, based upon the fact that such assignments and duties do not
constitute the employees primary employment purpose, are not grade
controlling, are of a voluntary nature for an indefinite duration, and
that the employees involved are neither attached to nor supervised by
the personnel office and thus perceived to be neutral, the Authority
finds that the "collateral duty EEO counselors" are not engaged in
Federal personnel work within the meaning of section 7112(b)(3) of the
Statute.
VI. Conclusion
The Authority concluldes that section 7112(b)(3) of the Statute is
not applicable to the four "collateral duty EEO counselors" and that
these employees should be included in the collective bargaining unit.
ORDER
IT IS ORDERED that the unit sought to be clarified is clarified by
including in the unit the following named "collateral duty EEO
counselors": Geraldine Bly, Contract Administrator, GS-1102-09; James
Mills, Heavy Mobile Equipment Mechanic, WG-5803-10; Paul King, Model
Maker, WG-4714-13 and William Finley, Warehouse Worker, WG-6907-05.
Issued, Washington, D.C., October 31, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Section 7112(bg)(3) of the Statute provides that an appropriate
unit may not include "an employee engaged in personnel work in other
than a purely clerical capacity(.)"
(2) Section 2422.17(c)(1) provides that an application for review may
be granted on the basis that "a substantial question of law or policy is
raised because of (i) the absence of, or (ii) a departure from,
Authority precedent(.)"