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57 FLRA No. 103
National Aeronautics and Space Administration Glenn Research Center, Cleveland, Ohio and International Federation of Professional and Technical Engineers, Local 28, Case No. CH-RP-00034 (Decided October 19, 2001)
The Agency sought review of the Regional Director's (RD's) decision clarifying a bargaining unit to include two positions. The Authority found that the RD committed a clear and prejudicial error on a substantial factual matter. Accordingly, the application for review was granted and the the RD was directed to clarify the unit to exclude the two positions.
The Authority explained that section 7103(a)(13) of the Statute defines a confidential employee as 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. An employee is confidential if: (1) there is evidence of a confidential working relationship between an employee and the employee's supervisor; and (2) the supervisor is significantly involved in labor-management relations. An employee is not confidential in the absence of either of these requirements. The Authority further explained that an employees who, in the normal performance of their duties, may obtain advance information of management's position with regard to contract negotiations, the disposition of grievances, and other labor relations matters, are considered confidential within the meaning of § 7103(a)(13) of the Statute. The frequency and the amount of an employee's working time devoted to labor relations matters may be relevant factors in determining confidential status, but are not controlling factors for § 7103(a)(13) purposes. In this case, the Authority concluded that the employees were confidential employees within the meaning of § 7103(a)(13) and that the RD erred in reaching a contrary result.