A recent decision, Dept. of Agriculture, Forest Service, Albuquerque, NM and NFFE, 64 FLRA 31, included personnel specialists in a bargaining unit despite what appears to be the black letter language of the law. The law at 5 U.S. Code § 7112. reads:
“(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes— (3) an employee engaged in personnel work in other than a purely clerical capacity…”
In what appears to be an early bone thrown to the unions by FLRA Chairman (and self proclaimed Obama administration labor relations leader) Carol Waller Pope and the members reversed thirty years of precedent to find personnel specialists included in a bargaining unit. Either the FLRA can’t read or understand the definition of “a purely clerical capacity….” or chooses to ignore it.
Its reasoning appears clear though:
“Looking to pertinent Authority precedent for guidance, the RD found that, even though the HRS employees perform duties as resource persons in personnel matters, they perform their duties in a routine manner in accordance with established Activity guidelines. The RD also determined that the HRS employees are not required to exercise independent judgment or discretion in carrying out those duties. Finally, the RD determined that the HRS employees do not perform their duties in a manner that would create a conflict of interest between their job duties and their union affiliation.”(My emphasis)
So casting aside the language of the statute in favor of a new standard i.e., a conflict of interest between their job duties and union affiliation, FLRA launches itself into the sleazy business of putting politics before its role as neutral decision maker. Of course, some could say that determining the classification of a position (which classifiers do) or determining qualifications of applicants for a “merit” promotion (which staffing specialists do) or preparing disciplinary actions (which employee relations specialists do) or all of the above (which personnel generalists do) is no conflict with union affiliation if they had their head buried in the sand or were an FLRA member with absolutely no government experience outside the FLRA.
Interestingly enough, FLRA’s method in its madness might very well stem from the fact that under current law, which I bet it can read, is that there is no appeal to the courts of a unit determination. If so, shame on them.
Where was OPM While this Chicanery was Going On?
Another key question is OPM’s role or lack of role in this matter.
Nowhere is there a request by FLRA for an advisory from the Agency that classifies these jobs and decides whether or not they are purely clerical. By FLRA’s reasoning the highest grade for a personnel specialist would be around a GS-6 if you look at the standards. Now it may not be fair to blame OPM for sleeping at the switch as FLRA has repeatedly in the past arrogated to itself interpretation of just about every imaginable Agency’s policies and regulations.
John Berry wants to reform the civil service. How about starting with OPM acting like a central personnel agency and coordinating labor relations issues so that what happens to one agency doesn’t pass like a virus to others unchecked. Or maybe the Agency involved went to OPM for support and got none (wouldn’t be a first time). If so, shame on OPM as well.
An Alternate Explanation
In recent years, the term of art, personnel, has changed or morphed, if you will, to human resources. It’s certainly possible that no one told the FLRA members about that and as they rarely leave the K Street corridor (the very heart of lawyering in DC), that’s an entirely plausible concept. Hey, FLRA, people engaged in personnel work and people engaged in human resources work is the same thing, duh. So maybe like Emily Litella of Saturday Night Live fame, now that the Authority knows this, maybe it’ll say “never mind” and issue a legally correct decision. Not likely if you’re into bone tossing.
By the way, all of the above is my opinion and doesn’t reflect that of others I may work with or for. But I sure hope some of my colleagues still in Federal service do.