HR Managers & Directors, Pay Very Careful Attention to This FLRA Decision!

The author says that a recent FLRA decision reverses previous precedent which will have important implications for HR managers.

For a number of years, the Federal Labor Relations Authority (FLRA) has been including Human Resource (HR) assistants, aides and in some cases specialists in bargaining union units as a matter of course. Applying a wide interpretation of what constitutes “a purely clerical capacity”, previous FLRAs have included many HR employees over Agency objections using standards that held that to be excluded the employee had to, among other things, “exercise independent judgment and discretion in the performance of personnel related duties.”

In April of 2018, the current FLRA reversed all prior precedents on what constitutes “a purely clerical capacity” in a decision involving the Department of Veterans Affairs and AFGE. (See 70 FLRA No. 97 (April 13, 2018)).

A Very Big Deal

This case means that if HR employees are included in a bargaining unit, an Agency must, according to the FLRA’s decision, NOW exclude any employee included by FLRA in a prior holding made on the basis addressed in this decision. We’re not talking about bargaining about it or even notifying the union (unless as a courtesy). FLRA has held that any position included for the reasons specified under the prior precedent is now EXCLUDED!!!

This is important because it is now illegal to withhold dues, permit a union to represent an individual, allow an affected employee to serve as a union representative or exercise any right extended to a bargaining unit employee under the statute and has been since last April.

So, What Do You Need to Know?

Here’s what the Federal Labor Management relations statute says:

5 USC §7112 (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;

According to FLRA’s Representation Case Law Outline issued before this decision, and I quote:

Examples of employees who were not excluded under § 7112(b)(3): 

  • Benefits Assistants who advised other employees about their benefits performed work that was “mostly clerical” and involved following regulations and guidelines rather than exercising independent judgment and discretion. VA Martinez, 66 FLRA at 523, 525. 
  • Recruitment Assistants who relied on guidelines, rules, and regulations to review vacancy announcements, verify applicants’ qualifications, and answer questions from applicants and management officials did not exercise independent judgment. Id. 
  • Pre-Employment Assistants who performed “mostly clerical” duties involving verifying the qualifications of applicants did not consistently exercise independent judgment. Id.
  • Although Human Resource Assistants served as subject-matter experts on personnel matters, they performed their duties in a routine manner, and followed standardized guidelines rather than exercising independent judgment and discretion. U.S. Dep’t of Agric. Forest Serv., Albuquerque Serv. Ctr., Human Capital Mgmt., Albuquerque, N.M., 64 FLRA 239, 242-43 (2009) (Member Beck concurring). 
  • A Customer Service Representative who reviewed personnel matters to ensure that appropriate procedures had been followed did not exercise independent judgment and discretion and her duties were clerical. AFGE, Local 3529, 57 FLRA 633, 638-39 (2001).
  • Legal Assistants who accessed confidential personnel files and assisted attorneys with personnel-related cases by citation-checking, formatting, copying, and mailing documents performed clerical work and did not exercise independent judgment or discretion. SSA, 56 FLRA 1015, 1015-18 (2000).
  • Section 7112(b)(3) did not exclude an Equal Employment Specialist who maintained data concerning EEO complaints because her duties were routine in nature, involved following prescribed guidelines, and did not require the exercise of independent judgment or discretion. U.S. Dep’t of Housing & Urban Dev., Wash., D.C., 35 FLRA 1249, 1254 (1990). (My Emphasis)

All of the above decisions are now likely voided by FLRA’s new decision.

So, What Does the New Decision Hold?

The case involved staffing assistants that the union petitioned to include in an existing bargaining unit. According to the case, the FLRA Regional Director (RD) found as follows:

The RD found that the staffing assistants’ main duties are:  (1) advising one or more departments about staffing and recruitment; (2) developing and posting vacancy announcements; (3) qualifying applicants for employment; and (4) onboarding new hires.  The RD found that, in advising departments about staffing and recruitment, the staffing assistants answer department chiefs’ questions and conduct research prompted by those questions.  She also found that they may advise their assigned departments about how to address staffing shortages, such as suggesting that departments advertise vacancy postings using social media or newspapers.

Additionally, the RD determined that, in developing and posting vacancy announcements, the staffing assistants collaborate with hiring departments, but they “do not make decisions about job qualifications, educational requirements, or any other substantive elements of the announcement.” The staffing assistants are trained by the Office of Personnel Management (OPM) to use the federal government’s “online job posting and applicant review platform.”  When developing vacancy announcements, staffing assistants “essentially distill and format information contained in the recruitment packet, and also pull information from OPM’s Qualification Standards, the [Agency’s] handbook 5005, and other regulatory guidance.” These vacancy announcements can vary in content, format, and wording depending on the staffing assistant drafting the announcement because some use templates and others “start each announcement from scratch.”

 Further, the RD determined that, in qualifying applicants for employment, the staffing assistants “compare each applicant’s qualifications . . . to OPM’s requirements for the particular job series,” but “are not permitted to compare one applicant to another.”  The RD also found that “[s]taffing [a]ssistants may designate an applicant [as] unqualified” if the applicant does not meet the vacancy announcement’s requirements, and “typically perform a second look” at unqualified applicants to make sure that the applicants did not make any errors in their online applications that resulted in their disqualification.

The RD determined that, after reviewing applications for a vacancy announcement, the staffing assistants send applicant information to the hiring department identifying each applicant who is at least minimally qualified for the job.  The staffing assistants must provide the applicants’ resumes, but may also send other documents, such as cover letters.  Once the department makes its selection, staffing assistants “examine the [department’s] review materials to ensure that the applicant selection complies with applicable policies and procedures.”

After making the above findings, according to the case:

Citing Authority case law, the RD found that for the § 7112(b)(3) exclusion to apply, an “employee must exercise independent judgment and discretion in the carrying out of personnel duties.” Applying this case law, the RD determined that “[w]hile the record reveals that [s]taffing[a]ssistants possess considerable expertise concerning [Agency] staffing and recruitment,” they “are ultimately not involved in setting job qualifications, making hiring decisions, or otherwise exercising the type of independent judgment or discretion warranting exemption under [§] 7112(b)(3).” Therefore, the RD clarified the bargaining unit to include the seven staffing assistants. (My Emphasis)

The FLRA, minus a dissenting minority member (Dubester), went back to cases just before and after the passage of the statute reaching the following conclusions:

We believe that the Statute’s plain wording, and the understanding reflected in the earlier decisions of the Assistant Secretary, indicate that (1) employees engaged in personnel work were meant to be excluded from bargaining units unless their work was “purely clerical,” and (2) “purely clerical” would mean that the employee was exclusively focused on administrative tasks like filing and typing.  For this reason, personnel work that involves evaluating, advising, recommending, and making assessments is not purely clerical.  So, any analysis of the § 7112(b)(3) exclusion must comport with the Statute’s plain language, and we now reconsider and reverse prior Authority decisions that overly relied on analyzing whether duties were performed in a routine manner or whether employees exercised independent judgment and discretion (My Emphasis)

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.