Click here to view the decision.
56 FLRA No. 176
Social Security Administration and American Federation of Government Employees, AFL-CIO, Case No. BN-RP-00018 (Decided December 26, 2000)
This case concerned an application for review of the Regional Director's (RD's) decision clarifying a bargaining unit description to include four Legal Assistant positions. The Activity filed the application for review under § 2422.31(a) of the Authority's Regulations on the grounds that: (1) the RD's decision raises a substantial question of law or policy in the absence of, or in departure from, Authority precedent; and (2) the RD's determinations of substantial factual matters are clearly erroneous and prejudicially affect the Activity's rights. The Union filed an opposition. However, the Authority denied the Activity's application for review.
The Authority found that the RD's decision did not raise a substantial question of law or policy in the absence of, or in departure from, Authority precedent. The Authority noted that the Activity did not support its assertion that there was a lack of precedent, or that the RD's decision conflicted with precedent, regarding whether the Legal Assistants should be excluded as confidential employees based on their relationship with the attorneys in the Office of the Regional Chief Counsel.
The Authority also found that the RD's determinations of substantial factual matters were not clearly erroneous and did not prejudicially affect the activity's rights. The Authority noted that under § 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. However, here, there was no evidence that the Legal Assistants engaged in personnel work of more than a clerical nature or exercise independent judgment and discretion. Rather, the record established that the attorneys make the decisions regarding the cases. Further, as to the contention that the Legal Assistants act in a confidential capacity to the attorneys in the Office of the Regional Chief Counsel, the Authority noted that it has determined that an employee's "confidential" status to management does not compel a conclusion that the employee is "confidential" within the meaning of § 7103(a)(13) of the Statute. Moreover, regarding the Legal Assistants' access to confidential documents regarding cases, the Authority has long held that mere access to material related to internal labor-management relations is not sufficient to establish confidential capacity within the meaning of the Statute.