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Representation Digest Series

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55 FLRA No. 201

U.S. Department of Justice, Federal Bureau of Prisons, U.S. Penitentiary Marion, Illinois and AFGE, AFL-CIO, Case No. CH-RP-70041 (Decided January 21, 2000)

      This case came 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 Authority found that the Agency did not establish that the RD erred in concluding that the EDS was not a confidential employee within the meaning of section 7112(b)(2) of the Statute and was not engaged in personnel work in more than a purely clerical capacity and should not have been excluded from the bargaining unit under section 7112(b)(3) of the Statute. The Authority denied the application as it pertained to the EDS. The Authority also found that the Agency did not establish that the RD erred in concluding that the Legal Assistant was not a confidential employee within the meaning of section 7112(b)(2) of the Statute, and denied the application in that respect. The Authority granted the application on the question of whether the Legal Assistant should have been excluded from the bargaining unit on the basis of section 7112(b)(7), and remanded the case to the RD for further proceedings consistent with this decision.

      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. In this case, the Authority noted that it could not determine, from the record, what standard the RD applied and the findings he made, thus it remanded the case.

      The Authority noted that on remand, the RD should make findings that correlate to section 7112(b)(7), such as whether the employee was "primarily engaged" in investigation or audit functions; whether the duties of the employees under investigation by the Legal Assistant, directly affected the internal security of the Agency; and 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 violated the civil rights of inmates constitute investigation of whether such employees have performed their duties honestly and with integrity.



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