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Beatris Ninh
In this assignment, we learn how to update a policy. Recall that in assignment 2, we used the wrong version of the policy language. We wanted to use version "0.3" but we "wrongly" used "0.2" instead. Because of this version mismatch, our "namespace" does not actually work: Only starting with version "0.3", one can use a policy as a namespace.
Assigned readings give you more in-depth information on ideas covered in lectures. You will not be asked questions relating to readings for the assignments, but they will be useful in studying for the final exam.
Enrolled students: Please use the Quercus Assignments page for all materials. The final version (ex-post errata, updates) will be posted here (for anyone auditing the course). Here is the ID template that you must submit with your assignments. Here is the MarkUs link you use to submit them.
Students are allowed to audit the course, as long as they are not taking up any course resources (including instructor/TA/admin time). They can attend lectures assuming there is space, and access any publicly accessible course materials (e.g. a Quercus page that is set to Institution visibility), but they don't get access to anything else. For example, if a regular student in that section (or another section) cannot find a seat at the lecture, they should give up the seat. They shouldn't expect questions to be answered on course resources or assignments/projects graded.
You can do the project in place of doing the 3 assignments. However, you can NOT skip the final exam (which will include materials covered for the assignments). Please read the project document and see Quercus for details. Assignments are optional (but recommended for those new to NLP), Final Exam is required.
"After the end of World War II, top-secret research continued across the United States as engineers and programmers rushed to complete their confidential assignments. Among them were six pioneering women, tasked with figuring out how to program the world's first general-purpose, programmab...
The RD found that five employees should not be excluded from the bargaining unit under 7112(b)(2) of the Federal Service Labor-Management Relations Statute (the Statute) as "confidential employees" as defined by 7103(a)(13). The RD also found that one employee should not be excluded from the bargaining unit under 7112(b)(3) of the Statute as an employee engaged in personnel work in other than a purely clerical capacity.
For the following reasons, we grant the application for review as to the Attorney Advisor, CU 905-15, and exclude the incumbent of that position from the bargaining unit as a confidential employee. We deny it in all other aspects.
As relevant here, the Agency petitioned to exclude five employees from the bargaining unit because they are confidential employees and thus excluded by 7112(b)(2), and one other employee because the employee is engaged in personnel work in other than a purely clerical capacity and thus excluded by 7112(b)(3). All of the employees' positions existed at the time of the election of NTEU as the exclusive representative, and all were included in the bargaining unit at that time. The six positions are:
In explaining why these employees should now be excluded from the bargaining unit, the Agency argued that the duties of each employee had undergone "meaningful changes" subsequent to NTEU being certified as the exclusive representative. Decision at 3. As a result of these changes in duties, the Agency asserted that the first five employees should now be excluded from the bargaining unit as confidential employees, and the sixth employee excluded from the bargaining unit as an employee engaged in personnel work in other than a purely clerical capacity. Id.
The RD stated that election agreement inclusions and exclusions to the bargaining unit remain binding unless the duties and functions of the position have changed meaningfully since that time, or the position was ineligible in the first instance under 7112(b)(1) through 7112(b)(7) of the Statute. [n1] Noting that the Agency had not alleged that the positions at issue were improperly placed on the eligibility list for the election, the RD stated that he was required only to determine whether the duties and functions of the positions had undergone meaningful changes since the Union was certified as the exclusive representative. The RD went on to find a meaningful change in the duties and functions of only the Budget Analyst and the Employee Development Specialist, and then determined whether either employee should be excluded from the bargaining unit. The RD concluded that that the Budget Analyst should not be excluded as a confidential employee, and that the Employee Development Specialist should not be excluded as an employee engaged in personnel work in other than a purely clerical capacity.
Notwithstanding his finding that the duties and functions of the four other employees had not changed meaningfully, the RD went on to address whether they should be excluded from the bargaining unit as confidential [ v61 p350 ] employees, and concluded that none should be excluded. In discussing why one employee should not be excluded, the RD found that the Attorney-Advisor, CU 905-15, was a confidential employee, but concluded that the employee should not be excluded from the bargaining unit because the employee's duties and functions had not changed sufficiently since the election to permit reconsideration of her bargaining unit status. Decision at 23, 25 n.9.
In that regard, the Agency argues that the incumbents in these positions gained access to confidential information concerning the Agency's labor-management relations program and developed a confidential relationship with an official involved with the Agency's labor negotiations. The Agency admits that these employees had no confidential assignments prior to the certification of the Union as the exclusive representative. After the Union was certified, however, the Agency claims that these employees were assigned duties relating to the labor relations function. As such, the Agency asserts that the duties and functions of these employees have undergone a meaningful change such that they should now be excluded from the bargaining unit.
As for the second ground, the Agency argues that "established law warrants reconsideration." AFR at 1-2. More specifically, the Agency argues that the RD's Decision fails to apply established law and thus warrants reconsideration because it would permit a confidential employee to be in a bargaining unit, in violation of the statutory prohibition against bargaining units including such individuals. Id. at 1-2, 8. The Agency notes the RD's finding that the Attorney-Advisor, CU 905-15, employee was a confidential employee, but because there had been no change in her position or duties since the election she should not now be excluded from the bargaining unit. The Agency argues that the RD's finding violates 7112(b)(2) of the Statute, which prohibits a bargaining unit from being appropriate if it includes confidential employees, and cites to Headquarters, Fort Sam Houston, Fort Sam Houston, Tex., 5 FLRA 339 (1981) (Fort Sam Houston) in support of its argument. Therefore, because the RD found that the employee is a confidential employee, the Agency argues the Authority should comply with the requirement of 7112(b)(2) and exclude the employee from the bargaining unit.
Finally, the Agency argues that the RD failed to apply established law to the other employees (all except the Attorney-Advisor, CU 905-15 position) regarding whether an employee is a confidential employee or an employee engaged in personnel work in other than a purely clerical capacity. AFR at 9. The Agency points to Authority precedent interpreting and applying the terms "confidential employee" and " employee engaged in personnel work in other than a purely clerical capacity," and argues that the RD misapplied this precedent to the facts of this case to improperly conclude that four of the remaining employees were not confidential employees, and that the one employee was not an employee engaged in personnel work in other than a purely clerical capacity. Consequently, the Agency asserts these employees should have been excluded from the bargaining unit for the reasons asserted.
Regarding the Attorney-Advisor, CU 905-15, the Union states that the RD's decision, finding that the employee is a confidential employee but nevertheless remains in the bargaining unit, "seems odd at first blush." Opposition at 8. The Union points out, however, that the RD determined that there were no changed circumstances in that employee's position since the election and, although the employee had some confidential duties, the position remained in the bargaining unit. The Union maintains that under Authority precedent, such as FTC I, 15 FLRA 247, the parties are held to their earlier agreement regarding employees' inclusion in or exclusion from the bargaining unit, absent changed circumstances. Therefore, the Union contends that the RD appropriately applied longstanding Authority precedent and determined that the Attorney-Advisor, CU 905-15, remained in the bargaining unit because there were no changed circumstances in the performance of the duties of that position.
The Union also asserts that the Agency's claim that there is a genuine issue as to whether the RD applied established law is nothing more than an attempt to relitigate the case, repeating claims not supported by the evidence of record or rejected by the RD as not credible. According to the Union, the RD properly applied the well-settled law regarding confidential employee status and federal personnel work in other than purely clerical capacity. Thus, for the reasons noted, the Union argues that the Agency's application for review should be denied.
Although the Agency asserts that "established law warrants reconsideration," AFR at 1-2, we construe the assertion, consistent with the substance of the Agency's argument, as a claim that the RD failed to apply established law. Section 7112(b) of the Statute provides that "(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 . . . (2) a confidential employee[.]" 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[.]" Applying this definition, the RD determined that the Attorney-Advisor, CU 905-15, is a confidential employee in relation to the Human Resources Specialist who is the contact point with the Union. See Decision at 22, 23, 25 n.8.
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