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57 FLRA No. 122
AFGE, Local 3529 and U.S. Dept. of Defense, Defense Contract Audit Agency, Central Region , Irving, Texas, Case Nos. DA-RP-00035 AND DA-RP-00040 (Decided December 10, 2001)
This case concerned an application for review of the Regional Director's (RD's) decision clarifying a bargaining unit to include five positions encumbered by 21 employees. The Authority found that the Activity did not demonstrate that review of the RD's Decision was warranted and denied the Activity's application for review.
The Authority concluded that the RD was not bound by the parties' MOA. The Authority found that the RD's decision did not raise a genuine issue for which there was an absence of precedent. Although the Authority precedent did not address the specific type of agreement at issue in this case, there was sufficient relevant precedent to offer guidance on how to treat the parties' MOA.
The Authority also concluded that the RD's failure to address the community of interest criterion under § 7112(a) did not provide a basis for granting review under § 2422.31(c)(3)(ii) of the Authority's Regulations. The Authority noted that even assuming that the RD committed a procedural error in finding that an issue raised in the Activity's post-hearing brief was not timely raised, the Activity was not prejudiced by this error. In this respect, the Agency was not prejudiced since, in the circumstances of this case, consideration of the community of interest criterion under § 7112(a) was not necessary to determine whether the positions at issue were excluded under § 7112(b).
The Authority also concluded that the QAAs should not be excluded from the bargaining unit under § 7112(b)(7). Accordingly, the Authority denied the Activity's claim that the RD failed to apply established law under § 7112(b)(7).
Additionally, the Authority found that the CSR was not engaged in personnel work in more than a purely clerical capacity and should not be excluded from the bargaining unit under § 7112(b)(3). Accordingly, the Authority found that the Activity failed to establish that the RD committed clear and prejudicial errors concerning substantial factual matters and, therefore, there was no basis for reviewing the RD's decision concerning whether the CSR performs personnel work and should be excluded from the unit under § 7112(b)(3).