United States Department of Justice, Immigration and Naturalization Service, Washington, D.C. and American Federation of Government Employees, Local 511, AFL-CIO, WA-RP-00085, August 26, 2002, 58 FLRA No. 5.

The union’s application for review challenged the Regional Director’s decision, in a unit clarification case, to exclude 21 attorney positions from the bargaining unit on the ground that 4 of the employees were engaged in security work within the meaning of § 7112(b)(6) because their "work includes regular use or, or access to, classified information" and the other 17 were engaged in internal personnel work within the meaning of § 7112(b)(3).

The Authority denied the union’s application with respect to the RD’s "security work" determinations. The union claimed, among other things, that the Regional Director (RD) erred in applying Department of Justice (DOJ), 52 FLRA No. 111, and that even if the RD didn’t err in applying DOJ, such precedent warranted reconsideration. The Authority found that the union didn’t demonstrate that review was warranted and denied this aspect of the union’s application.

It did, however, grant the application for review regarding the RD’s determination that 17 employees had to be excluded from the unit because they were engaged in internal personnel work. It did so on the same ground in which it granted review in Department of the Army, North Central Civilian Personnel Operation Center, Rock Island, Illinois (Army), 58 FLRA No. 3, where it said:

existing Authority precedent does not provide sufficient guidance on whether § 7112(b)(3) excludes from bargaining units employees performing civilian personnel work in other than a purely clerical capacity for fellow agency employees in bargaining units other than the one seeking to include those civilian employees.

FLRA asked the parties, as it had asked the parties in Army, 58 FLRA No. 3, to address the following questions:

Section 7112(b)(3) of the Statute provides that a bargaining unit is not appropriate if it includes "an employee engaged in personnel work in other than a purely clerical capacity." Does section 7112(b)(3) operate to exclude employees who perform personnel work concerning other employees of the same agency who are not included in the bargaining unit at issue? In this regard, does the term "personnel work" refer to personnel work of the agency or only to work that concerns other employees of the same bargaining unit?

It also noted that it would publish a Federal Register notice inviting interested persons to address the issue.

In a separate opinion, Member Armendariz reiterated the view he expressed in Army, 58 FLRA No. 3--namely, that the issue could be resolved on the basis of the record before FLRA and there was no need for a further briefing, either by the parties or more broadly through a Federal Register notice. He noted that FLRA had held, in OPM, 5 FLRA No. 30, that "[e]mployees who perform 'internal' personnel work, that is, work relating directly to the personnel operations of their own agency, would be faced with a conflict of interest between their jobs and union representation if included in the unit[.]" (Emphasis added by Member Armendariz.) He continued as follows:

An employee who performs such personnel work on behalf of the agency is clearly aligned with the interests of management, and to allow the employee to be part of a bargaining unit would pose an inherent conflict with that employee’s responsibilties to management. Therefore, such employees should be excluded under § 7112(b)(3) of the Statute.

In his view, the RD correctly applied the OPM standard to the employees in dispute and he would therefore affirm that aspect of the RD’s decision.

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