Department of the Army, North Central Civilian Personnel Operation Center, Rock Island, Illinois and American Federation of Government Employees, Local 15, AFL-CIO, CH-RP-01-0033, September 30, 59 FLRA No. 45.

The Authority, disagreeing with the Regional Director, finds that "§7112(b)(3) excludes all employees performing personnel work, in other than a purely clerical capacity, concerning other employees of the same agency irrespective of whether those other employees are included in the bargaining unit at issue." Although noting that several agencies submitted briefs arguing that employees performing non-clerical personnel work for any agency in the Government should be excluded from bargaining units, FLRA did not address this issue because its resolution "is not necessary to decide this case[.]"

In granting the agency's application for review of a Regional Director's decision holding that certain employees performing non-clerical personnel work were included in the unit because the personnel work they performed didn't directly affect other employees in the proposed unit, the Authority asked the parties (and--via a Federal Register notice--invited amicus briefs from "interested persons") to address the following question:

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?

After considering the many briefs that were submitted, it concluded that the term "personnel work" refers to the personnel work of the agency.

Starting with the statutory language, FLRA noted that "nothing in [the] wording [of §7112(b)(3)] supports a conclusion that the exclusion depends in any way on the unit status of the employee(s) for whom personnel work is being performed."

It then looked at its earlier decisions. It said that in OPM, 5 FLRA No. 30 (a case mainly dealing with employees providing external personnel services to other agencies), it had concluded "that employees who perform personnel work relating directly to the personnel operations of their own employing agency are to be excluded from bargaining units." It admitted that in later cases it stated the test for exclusion in a way that implied that exclusion depended on the unit status of the employees for whom personnel work is performed. However, since those cases involved employees who were performing personnel work affecting employees in the same bargaining unit, "the statements in those decisions that performing personnel work 'affecting the bargaining unit' resulted in exclusion may be explained as statements of fact, not findings that such facts were necessary for the exclusion to apply in the first place."

It rejected the union's argument that conflict-of-interest determinations had to be made in applying §7112(b)(3).

[W]e reject the Union's argument that it is necessary to make a case-by-case determination of whether the particular work of particular employees would create a conflict of interest in applying §7112(b)(3). The Statute reflects the intent of Congress to preclude employees engaged in personnel work from bargaining units when the work they perform for the agency is more than purely clerical. If Congress had intended to require individual conflict-of-interest determinations, then Congress would have modified the wording of §7112(b)(3) to do so, as it did by requiring the determination that personnel work be performed "in other than a purely clerical capacity."

In applying the above principles, FLRA corrected the Regional Director's interpretation of FLRA precedent by noting that "the proper focus in this case is whether the personnel work performed by employees in other than a purely clerical capacity relates to their own employing agency. If it does, then Congress has mandated that such employees are excluded by §7112(b)(3)." Finding that the personnel work performed by the employees at issue related to their own employing agency, it held that they are excluded by §7112(b)(3). It accordingly remanded the case to the RD to exclude the disputed employees from the bargaining unit.

In a footnote FLRA noted that several agencies had argued that §7112(b)(3) excluded from any bargaining unit employees performing non-clerical personnel work for any agency in the Government. However, it didn't pass on that issue, finding its resolution wasn't necessary to deciding the case at bar.