[ v55 p1243 ]
55 FLRA No. 201
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
U.S. PENITENTIARY
MARION, ILLINOIS
(Activity)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
(Petitioner/Union)
CH-RP-70041
_____
DECISION AND ORDER
GRANTING APPLICATION FOR REVIEW IN PART
January 21, 2000
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on an application for review of the Regional Director's (RD's) decision clarifying a bargaining unit description to include two positions: an Employee Development Specialist, GS-0235-09 (EDS) and a Legal Assistant, GS-0989-07. The Activity filed the application under section 2422.31(a) of the Authority's Regulations. The Union did not file an opposition.
For the reasons set forth below, we find that the Agency has not established that the RD erred in concluding that the EDS is not a confidential employee within the meaning of section 7112(b)(2) of the Federal Service Labor-Management Relations Statute (the Statute) and is not engaged in personnel work in more than a purely clerical capacity and should not be excluded from the bargaining unit under section 7112(b)(3) of the Statute. Accordingly, we deny the application as it pertains to the EDS. We also find that the Agency has not established that the RD erred in concluding that the Legal Assistant is not a confidential employee within the meaning of section 7112(b)(2) of the Statute, and we deny the application in that respect. We grant the application on the question of whether the Legal Assistant should be excluded from the bargaining unit on the basis of section 7112(b)(7), and we remand the case to the RD for further proceedings consistent with this decision.
II. Background and RD's Decision
A. Background
The employees whose positions are in question are on staff at the Marion Penitentiary.
1. The EDS
The EDS is employed in the Employee Development Office (EDO) and reports to the EDO Manager. There are no other employees in the EDO, which is organizationally separate from the Personnel Office. The function of the EDO is to assure that all staff receive mandatory training required by the Department of Justice, Federal Bureau of Prison's (Agency's) policies and to assist staff in meeting career development goals.
One of the EDS' principal duties is to track whether employees receive mandatory training as specified by Agency requirements. The EDS has access to personnel records to the limited extent necessary to acquire information about training requirements, including information that appears on employee appraisals. The EDS also prepares an annual training and development plan which includes mandatory and non-mandatory training and purchase of training equipment and supplies. She makes recommendations regarding which training requests might be denied to the EDO Manager and prepares a final plan for submission to a committee that makes final decisions regarding the training plan and budget. The EDS attends the committee's meeting and takes notes and participates in the discussion but does not vote.
The EDS also posts training announcements and counsels employees regarding training and career development opportunities. The EDS is also involved in the institutional familiarization training for new staff members. The EDS may also act for the EDO Manager during the Manager's absence.
The EDO Manager has not been involved in any collective bargaining with the Union nor has the manager been involved in any grievances or arbitrations or in any decision-making regarding disciplinary actions. The EDO Manager serves as a mediator for the Activity's newly formed Partnership Council, but the EDS does not attend council sessions.
2. The Legal Assistant
The Office of the Senior Attorney (the Legal Department) at the Activity is staffed by the Senior Attorney, another attorney, and the legal assistant. The Legal Department coordinates the litigation that arises [ v55 p1244 ] out of the institution's operations. It coordinates tort and other claims that are filed by inmates and staff and provides general legal advice to the Warden.
The Legal Assistant's chief responsibility is to investigate tort, administrative remedy, and other claims, including civil rights claims, that are brought by inmates against the staff. Inmate claims under the Federal Tort Claims Act are claims for specified monetary damages for loss or injury due to the negligence of staff. Claims for under $500 are decided at the Activity level by the senior attorney, who determines whether to offer settlement. Larger claims are referred to the Warden and then to the Regional Counsel. The Legal Assistant also investigates claims for damages brought under other statutes. Inmates' civil rights claims, which are made against staff members in their individual capacity, involve allegations of injury or loss due to unconstitutional acts by staff. The Legal Assistant investigates the merits of the claim and makes a recommendation as to whether the staff member should be represented by the Justice Department in any ensuing litigation. The claims are numerous--60 to 80 tort claims are filed each year at the Activity.
The Legal Assistant receives investigation assignments from the Regional Counsel or from the U.S. Attorney's Office. The Legal Assistant conducts investigations by interviewing inmates and staff, including correctional officers, unit management, and other staff such as medical staff. The Legal Assistant also reviews relevant records and documents and prepares an investigative report and recommendation as to whether a case has merit, whether a staff member was acting within the scope of his or her employment, and similar matters. The Legal Assistant also prepares requests to the Justice Department that a staff member be represented by the Department. When a case proceeds to litigation, the Legal Assistant is usually responsible for preparing initial responses to interrogatories and subpoenas.
The Legal Department has no role in the discipline of employees or in making recommendations for discipline. The Legal Assistant's investigations could potentially include a finding of staff wrongdoing of a serious enough nature that the Warden would refer it to the Office of Internal Affairs. However, no such action had occurred at the Activity in recent years. The Legal Department may also be required to research personnel information and garnishment actions, and the Legal Assistant is privy to such information.
The Senior Attorney has not been a participant in any labor-management negotiations at the Activity, nor has he had any direct or decision-making responsibility regarding grievances, arbitrations, disciplinary actions, or unfair labor practice charges. The Senior Attorney may be present at a meeting where a labor topic arises, but he characterized this involvement with labor issues as "'peripheral.'" RD's Decision at 7. On occasion, the Senior Attorney has asked the Legal Assistant to research a labor issue, but the Legal Assistant has not been aware of the Senior Attorney's involvement in any negotiations with the Union or in any grievance, arbitration, or disciplinary action.
B. RD's Decision
1. The EDS
The RD found that the EDO Manager was not significantly involved in formulating or effectuating labor-management relations policies. Because the EDS did not act in a confidential capacity to an individual who formulated or effectuated management policies in the field of labor-management relations, the RD concluded that the EDS is not a confidential employee within the meaning of section 7103(a)(13) of the Statute [n1] and, therefore, should not be excluded from the bargaining unit under section 7112(b)(2) of the Statute. [n2]
The RD also found that although the EDS is a valued employee, knowledgeable in the field of training and employee development, the majority of the EDS' duties fall within established guidelines and policies. The RD noted that the development of the training plan and budget was based upon specific Agency policies. The RD also noted that the Training Committee made final decisions on the training plan and the budget. Finally, the RD determined that other duties performed by the EDS, such as scheduling training and announcing training opportunities, were not of a sensitive nature such that knowledge of them would create a conflict of interest between her job duties and Union representation. The RD found that the EDS was not engaged in personnel work and, therefore, should not be excluded [ v55 p1245 ] from the bargaining unit under section 7112(b)(3) of the Statute. [n3]
2. The Legal Assistant
The RD noted that under section 7112(b)(7) of the Statute, [n4] employees have been excluded from bargaining units because the employees were engaged in audit work to identify and eliminate instances of fraud, waste, or abuse. The RD found that the record in this case establishes that the Legal Assistant is engaged in investigations of tort, civil rights, and administrative remedy claims: (1) to determine whether the inmate (or staff member) has a legitimate claim that should be resolved; (2) to prepare for litigation of such claims; and (3) to prepare for the defense of the employee and/or the Activity against such claims. The RD concluded that the purpose of the investigations was neither to determine whether the employees discharged their duties honestly and with integrity, nor to uncover possible fraud, waste, or abuse. Therefore, the RD found that the investigative work performed by the Legal Assistant is not the type of investigative or audit work contemplated by section 7112(b)(7) of the Statute.
Regarding the contention that the Legal Assistant is a confidential employee, the RD found that the Senior Attorney is involved in discussions about labor-management issues. However, the RD determined that the Senior Attorney is not directly involved in management decision-making regarding disciplinary actions, grievances, or arbitrations, nor has he been directly involved in any labor negotiations. Moreover, the RD found that there was no evidence that the Legal Assistant had access to any sensitive or confidential labor relations materials. The RD concluded that the Legal Assistant does not work in a confidential capacity to an individual who formulates or effectuates labor-management relations policy within the meaning of section 7103(a)(13) of the Statute. Therefore, the RD determined that the Legal Assistant should be included in the bargaining unit.
III. Positions of the Parties
A. The Activity's Application
1. The EDS
The Activity contends that the RD committed a clear and prejudicial error concerning substantial factual matters and failed to appropriately apply section 7112(b)(2) of the Statute. In this regard, the Activity asserts that the EDS has a confidential working relationship with her supervisor, who is significantly involved in labor-management relations in his role as the mediator for the Partnership Council. Additionally, the Activity contends that the EDO Manager, as chairman of the Training Committee, is responsible for dealing with Union concerns or issues regarding training. The Activity claims that the EDS develops the penitentiary's training budget and has unrestricted access to the EDO's confidential information. Therefore, the Activity asserts that the EDS is a confidential employee under section 7103(a)(13) of the Statute and should be excluded from the bargaining unit pursuant to section 7112(b)(2) of the Statute.
The Activity also contends that the RD committed a clear and prejudicial error concerning substantial factual matters and failed to appropriately apply section 7112(b)(3) of the Statute. According to the Activity, the EDS position is: (1) more than clerical in nature; (2) performed in a non-routine manner; and (3) of such a nature as to create a conflict of interest between Union representation and the EDS job duties. The Activity maintains that although the EDS must follow Agency guidelines regarding granting training requests for employees, the RD incorrectly found that the EDS' duties were performed in a routine manner. The Activity claims that the EDS exercises considerable discretion in developing the training plan and budget. The Activity argues that the RD failed to note the importance of the EDS' duties concerning the formation and application of the training budget. In this regard, the Activity asserts that the EDS would have a conflict of interest between her job responsibilities regarding knowledge of the training budget and Union representation.
The Activity further asserts that the EDS advises individual employees concerning their training needs, especially those employees who may be placed on a performance improvement plan. The Activity also argues that the EDS exercises independent judgment in determining how and when to seek upgrades in training equipment. The Activity states that the EDS partici- [ v55 p1246 ] pates in Training Committee discussions and serves as the Acting EDO Manager when her supervisor is away.
2. The Legal Assistant
The Activity contends that the Legal Assistant has a confidential relationship with the Senior Attorney. The Activity claims that the Senior Attorney is significantly involved in labor-management relations and discusses these issues with the Legal Assistant. In this regard, the Activity asserts that the Legal Assistant has conducted legal research into labor-management issues. The Activity also asserts that the Legal Assistant has reviewed adverse action files and personnel files of correctional officers sued in their personal capacities. The Activity maintains that the Legal Assistant has researched issues where complaints have been made by the bargaining unit. The Activity contends that the RD committed a clear and prejudicial error concerning substantial factual matters and failed to appropriately apply section 7112(b)(2) of the Statute.
The Activity also contends that the RD failed to consider the investigative work performed by the Legal Assistant. Instead, the Activity argues, the RD focused on the criteria for excluding auditors from a bargaining unit--to uncover possible fraud, waste, or abuse. The Activity asserts that the plain language of the Statute does not restrict the meaning of the phrase "employees engaged in investigation or audit functions" to Inspector General investigators or those employees who audit contracts. The Activity further asserts that the investigations conducted by the Legal Assistant relate to the work of correctional officers, whose duties directly affect the internal security of the penitentiary because excessive use of force by such employees could subject the government to legal liability or create a dangerous situation that could lead to riot.
Additionally, the Activity claims that the RD failed to acknowledge the Activity's argument that the Legal Assistant has a conflict of interest by virtue of the attorney-client privilege accorded her work product. The Activity asserts that the Legal Assistant does not share a community of interest with the employees in the bargaining unit because the Legal Department investigates claims against bargaining unit members. The Activity argues that these bargaining unit members would be denied Justice Department representation should the Legal Assistant's investigation show that the employees had not acted within the scope of their employment.
As an alternative argument, the Activity asserts that the RD's decision raises an issue for which there is an absence of precedent in that the Authority's decisions regarding employees engaged in investigations under section 7112(b)(7) have limited the rulings to auditor positions in various Inspector General offices and the Naval Auditing Service.
B. The Union
The Union did not submit an opposition.
IV. Analysis and Conclusions
A. The EDS Is Not a Confidential Employee and Should Not Be Excluded from the Bargaining Unit under Section 7112(b)(2)
We find that the Activity has not supported its assertion that the RD erred in determining that the EDS should be excluded as a confidential employee based on her relationship with the EDO Manager. To exclude an employee from a bargaining unit on the basis that the employee is a confidential employee, the employee must be 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. Red River Army Depot, Texarkana, Texas, 2 FLRA 659, 660 (1980) (Red River). The Activity relies on the EDO Manager's duties, particularly the Manager's role as a mediator on the Partnership Council, to support its claim. However, those duties do not constitute the type of responsibilities that the Authority has found are aspects of the formulation or effectuation of management policies in labor relations. The responsibilities identified by the Authority in this regard include advising management on or developing negotiating positions and proposals, preparing arbitration cases for hearing, and consulting with management regarding the handling of unfair labor practice cases. [n5] See, for example, U.S. Department of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37 FLRA 239, 240-41 (1990). The RD concluded that the EDO Manager is not significantly involved in formulating or effectuating management policies in the field of labor relations. See Department of Veterans Affairs, Regional Office, Waco, Texas, 50 FLRA 109, 111-12 (1995) (VA, Waco). Accordingly, we find that the Activity has not established compelling reasons under section [ v55 p1247 ] 2422.31(c) of the Authority's Regulations for granting its application for review on this issue. [n6]
B. The EDS Is Not Engaged in Personnel Work in More Than a Purely Clerical Capacity and Should Not Be Excluded from the Bargaining Unit under Section 7112(b)(3)
Under section 7112(b)(3) of the Statute, a bargaining unit will not be found appropriate if it includes "an employee engaged in personnel work in other than a purely clerical capacity." For a position to be excluded under that section, it must be determined that the character and extent of involvement of the incumbent is more than clerical in nature and that the duties of the position in question are not performed in a routine manner. Further, the incumbent must exercise independent judgment and discretion in carrying out the duties. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Cincinnati District, Cincinnati, Ohio, 36 FLRA 138, 144 (1990).
The Activity argues that the RD's decision is clearly erroneous because it does not consider the discretion exercised by the EDS in developing the training plan and in counseling employees regarding training requirements. Although the record shows, as the Activity asserts, that the EDS makes recommendations regarding the training plan and attends meetings of the Training Committee, there is no evidence that in performing these duties the EDS engages in personnel work of more than a clerical nature or exercises independent judgment and discretion. In this regard, the record establishes that the Training Committee makes the decisions regarding the training plan and budget. See U.S. Department of Health and Human Services, Office of the General Counsel, Baltimore, Maryland, 45 FLRA 894, 897-98 (1992). Compare Internal Revenue Service, Office of the Regional Commissioner, Southeast Region, 5 A/SLMR 625, 629-30 (1975) (employee development specialist who developed and implemented a region-wide training program was excluded from a bargaining unit because the employee was engaged in personnel work in other than a clerical capacity).
We find that the Agency has not established that the RD committed a "clear and prejudicial error concerning a substantial factual matter" and, therefore, there is no basis for reviewing the RD's decision concerning whether the EDS performs personnel work and should be excluded from the bargaining unit under section 7112(b)(3) of the Statute.
C. The Legal Assistant Is Not a Confidential Employee and Should Not Be Excluded from the Bargaining Unit under Section 7112(b)(2)
We find that the Activity has not supported its assertion that the Legal Assistant should be excluded as a confidential employee based on her relationship with the Senior Attorney. As noted above, to exclude an employee from a bargaining unit on the basis that the employee is a confidential employee, the employee must be 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. Red River, 2 FLRA at 660. The Senior Attorney's duties, on which the Activity relies to support its claim, do not constitute the type of responsibilities that the Authority has found are aspects of the formulation or effectuation of management policies in labor relations. The RD concluded that the Senior Attorney is not significantly involved in formulating or effectuating management policies in the field of labor relations. See VA, Waco, 50 FLRA at 111-12. Moreover, the research and review tasks assigned the Legal Assistant regarding adverse action files and files related to complaints and suits against employees do not constitute labor relations work.
We find that the Agency has not established that the RD committed a "clear and prejudicial error concerning a substantial factual matter" and, therefore, there is no basis to exclude the Legal Assistant from the bargaining unit on the ground that the incumbent is a confidential employee under section 7112(b)(2) of the Statute. Accordingly, we deny the application for review on this issue. [ v55 p1248 ]
D. A Remand Is Necessary to Determine Whether the Legal Assistant Should Be Excluded from the Bargaining Unit under Section 7112(b)(7)
Section 7112(b)(7) of the Statute provides that a bargaining unit is inappropriate if it includes
any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity.
A review of the precedent developed to apply section 7112(b)(7) reveals that most of the cases relate to employees engaged in audit functions. [n7] See U.S. Small Business Administration, 34 FLRA 392, 399 (1990) (SBA); U.S. Department of Labor, Office of Inspector General, Region 1, Boston, Massachusetts, 7 FLRA 834, 835 (1982) (Labor, Inspector General). See also U.S. Department of the Navy, Naval Audit Service, Southeast Region, 46 FLRA 512 (1992) (Naval Audit). The Statute, however, applies to both audit and investigative functions, and is not limited to audit work. See SBA, 34 FLRA at 401. In these cases, the Authority found employees to fall with the exclusion of individuals investigating particular employees' honesty and integrity in situations where these individuals were found to "perform internal investigations of employee wrongdoing and fraud," with the potential for uncovering "employee fraud, misuse of funds, or malfeasance," Id., 34 FLRA at 402, as well as where the individuals investigate "fraud, waste, inefficiency, and related improprieties." Naval Audit, 46 FLRA at 516. Cf. United States Department of Agriculture, Forest Service, Francis Marion and Sumter National Forests, 2 A/SLMR 597, 601 (1972) (criminal investigator who investigated actions of local residents and visitors to forest, but not bargaining unit employees, was included in bargaining unit).
Section 7112(b)(7) of the Statute clearly excludes from bargaining units employees engaged in audit or investigative work whose functions are undertaken to ensure that the duties of the individual employees being audited or investigated are discharged "honestly and with integrity." 5 U.S.C. § 7112(b)(7). Based on the discussion above, we find that there is not, as the Activity suggests, an absence of precedent regarding what standard should be applied to determine whether the position of the Legal Assistant should be excluded from the bargaining unit on the basis of section 7112(b)(7) due to the performance of investigative work.
The RD found that the Agency had not established that the incumbent was called upon to investigate or uncover instances of fraud, waste, or abuse. Rather, the RD found that the Legal Assistant was engaged in investigations of tort, civil rights, and administrative remedy claims brought against the staff and/or the penitentiary, usually by inmates: (a) to determine whether the inmate has a legitimate claim that should be resolved; (b) to prepare for litigation of such claims, and (c) to prepare for the defense of the employee and/or the Activity against such claims. See RD's Decision at 7. The RD found that the work performed by the Legal Assistant does not constitute the type of investigative and audit work contemplated by section 7112(b)(7) of the Statute and concluded that the Legal Assistant position should not be excluded from the bargaining unit.
While it is not entirely clear, it appears that the RD would only have found the employee at issue to fall within the section 7112(b)(7) exclusion if the Agency established that she performed investigations relating to "fraud, waste, and abuse" similar to the investigations conducted by employees in the Authority cases discussed above. SBA, 34 FLRA at 399; Labor, Inspector General, 7 FLRA at 835. The section 7112(b)(7) standard is not, however, limited to that type of employee, and includes any audit or investigation that relates to the "honesty and integrity" of particular types of employees. The standard applied by the RD may, therefore, be narrower than the statutory "honest and integrity" standard. While the various findings of the RD do not indicate that he applied the appropriate standard, they may also constitute factual findings that are consistent with the proper standard. Because we cannot determine exactly what standard the RD applied and findings he made, we remand the case for further processing, consistent with this decision.
On remand, the RD should make findings that correlate to section 7112(b)(7), such as: (a) whether the employee is "primarily engaged" in investigation or audit functions; (b) whether the duties of the employees under investigation by the Legal Assistant, directly affect the internal security of the Agency; and (c) whether the investigation functions are undertaken to ensure that the duties are discharged honestly and with integrity. In this regard, the RD should consider whether the Legal Assistant's investigations of allegations that employees have used excessive force or have [ v55 p1249 ] violated the civil rights of inmates constitute investigation of whether such employees have performed their duties honestly and with integrity.
Accordingly, we remand the decision to the RD to reconsider his determination, applying the broader standard set forth in section 7112(b)(7), as to whether the Legal Assistant should be excluded from the bargaining unit pursuant to section 7112(b)(7) of the Statute.
V. Order
The Agency has not established that the RD erred in finding that the EDS is not a confidential employee within the meaning of section 7112(b)(2) of the Statute and is not engaged in personnel work in more than a purely clerical capacity and should not be excluded from the bargaining unit under section 7112(b)(3) of the Statute. We deny the application for review as it pertains to the EDS. The Agency also has not established that the RD erred in finding that the Legal Assistant is not a confidential employee within the meaning of section 7112(b)(2) of the Statute. We deny the application for review as to this contention.
We grant the application for review as to the status as an investigative employee of the Legal Assistant and remand the decision to the RD to reconsider his determination that the Legal Assistant should not be excluded from the bargaining unit pursuant to section 7112(b)(7) of the Statute. On remand, the RD shall determine whether the Legal Assistant should be excluded from the bargaining unit based on section 7112(b)(7) under the standard described in this decision.
Footnote # 1 for 55 FLRA No. 201
Section 7103(a)(13) of the Statute defines a confidential employee as:
(13) 'confidential employee' means 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[.]
Footnote # 2 for 55 FLRA No. 201
Section 7112(b)(2) of the Statute provides:
(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes-
. . . .
(2) a confidential employee[.]
Footnote # 3 for 55 FLRA No. 201
Section 7112(b)(3) of the Statute provides that a bargaining unit shall not be appropriate if it includes:
(3) an employee engaged in personnel work in other than a purely clerical capacity[.]
Footnote # 4 for 55 FLRA No. 201
Section 7112(b)(7) of the Statute provides that a bargaining unit shall not be appropriate if it includes:
(7) any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity.
Footnote # 5 for 55 FLRA No. 201
We note that partnership activities can include formulation and effectuation of labor relations policies. See U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, 53 FLRA 312, 319 (1997) (collective bargaining may occur in a variety of ways, including the use of collaborative or partnership methods). Here, however, there is no evidence that the EDO Manager, in his capacity as mediator for the partnership council, is so engaged.
Footnote # 6 for 55 FLRA No. 201
Under section 2422.31 of the Authority's Regulations, the Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
5 C.F.R. § 2422.31(c).
Footnote # 7 for 55 FLRA No. 201
The legislative history of section 7112(b)(7) contains only a brief discussion differentiating subsection (b)(7) from subsection (b)(6), relating to national security work. See Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print, Nov. 19, 1979, at 994.