[ v02 p712 ]
02:0712(92)CA
The decision of the Authority follows:
2 FLRA No. 92
THE ADJUTANT GENERAL-GEORGIA,
GEORGIA NATIONAL GUARD,
DEPARTMENT OF DEFENSE,
ATLANTA, GEORGIA
Respondent
and
GEORGIA ASSOCIATION OF CIVILIAN
TECHNICIANS, ACT, INC.
Complainant
Assistant Secretary
Case No. 40-9032(CA)
DECISION AND ORDER
ON JUNE 18, 1979, ADMINISTRATIVE LAW JUDGE GARVIN LEE OLIVER ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS AS
SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER. THEREAFTER, BOTH THE COMPLAINANT AND THE RESPONDENT
FILED EXCEPTIONS AND SUPPORTING BRIEFS WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE EXCEPTIONS AND BRIEFS FILED BY BOTH PARTIES, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS, AS MODIFIED BELOW.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE ACTIVITY HAD ADDED
CERTAIN SUPERVISORY RESPONSIBILITIES TO THE POSITION DESCRIPTIONS FOR
SOME 22 POSITIONS AT VARIOUS LOCATIONS AT THE GEORGIA NATIONAL GUARD.
THE POSITIONS WERE GENERALLY DESCRIBED AS SMALL SHOP SUPERVISORS. THE
CHANGES IN THE POSITION DESCRIPTIONS FOR THESE 22 JOBS WERE MADE AT THE
DIRECTION OF THE NATIONAL GUARD BUREAU, WHICH RETAINS CLASSIFICATION
AUTHORITY FOR ALL CIVILIAN TECHNICIANS POSITIONS NATIONWIDE. THE
ACTIVITY NOTIFIED THE UNION REGARDING THE PROPOSED CHANGES WITHIN ITS
JURISDICTION. THE PARTIES DISCUSSED THESE PROPOSED CHANGES, WITH THE
UNION MAINTAINING ITS POSITION THAT NONE OF THE CHANGES IN JOB
RESPONSIBILITIES WARRANTED A CHANGE FROM NONSUPERVISORY TO SUPERVISORY
STATUS FOR THE INCUMBENTS OF THESE 22 POSITIONS. ON JUNE 26, 1978, THE
ACTIVITY UNILATERALLY IMPLEMENTED THE PROPOSED CHANGES AND IT NOTIFIED
THE UNION OF ITS INTENTION TO REMOVE THE 22 POSITIONS FROM THE UNION'S
EXCLUSIVE BARGAINING UNIT BASED ON THE CHANGE IN THEIR SUPERVISORY
STATUS. ON JULY 2, 1978, DUES WITHHOLDING FOR THE INCUMBENTS OF THESE
22 POSITIONS WAS SUSPENDED.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE ACTIVITY HAD ACTED AT ITS
PERIL WHEN IT UNILATERALLY SUSPENDED DUES WITHHOLDING PRIVILEGES FOR THE
INCUMBENTS OF THE 22 AFFECTED POSITIONS. THEREFORE, HE NOTED THAT, IN
EFFECT, ANY DETERMINATION AS TO WHETHER THE ACTIVITY HAD ACTED PROPERLY
MUST BE BASED ON A DETERMINATION AS TO WHETHER THE AFFECTED EMPLOYEES
HAD ACTUALLY ACQUIRED THE SUPERVISORY STATUS ASCRIBED TO THEM. THE
ADMINISTRATIVE LAW JUDGE, AFTER REVIEWING THE RESPONSIBILITIES OF THE
INCUMBENTS OF ALL 22 POSITIONS IN QUESTION HEREIN, CONCLUDED THAT SEVEN
OF THE 22 EMPLOYEES WERE ERRONEOUSLY DETERMINED TO HAVE BECOME
SUPERVISORS ON JUNE 26, 1978, AND THAT BY REMOVING THESE EMPLOYEES FROM
CHECKOFF, THE ACTIVITY HAD VIOLATED SECTION 19(A)(1) OF THE ORDER.
THE AUTHORITY FINDS THAT ALL THE SMALL SHOP SUPERVISORS, WITH THE
EXCEPTION OF ONE INDIVIDUAL WHO HAD NO EMPLOYEES DIRECTLY ASSIGNED TO
HIS SHOP, ARE SUPERVISORS WITHIN THE MEANING OF THE ORDER. THE SMALL
SHOP CHIEFS' DUTIES AS NOTED IN THEIR JOB DESCRIPTION INCLUDE:
PLANNING, ORGANIZING, AND SCHEDULING OF WORK ASSIGNMENTS AND THE
ESTABLISHMENT OF PRODUCTION CONTROLS; EXPLAINING WORK REQUIREMENTS,
WORK METHODS, AND THE STANDARDS OF QUALITY AND QUANTITY TO BE MET;
MONITORING WORK AND GIVING INSTRUCTION ON DIFFICULT OPERATIONS; MAKING
ADJUSTMENTS IN WORK ASSIGNMENTS AND METHODS AS NEEDED; AND SCHEDULING
LEAVE, APPRAISING PERFORMANCE, RECOMMENDING PROMOTIONS, AND INITIATING
DISCIPLINARY ACTION AS NEEDED. EACH SMALL SHOP SUPERVISOR HAS
RESPONSIBILITY FOR CONTROL OVER WORK OPERATIONS PERFORMED BY THE OTHER
CIVILIAN TECHNICIANS ASSIGNED TO HIS SHOP AND THEY ARE ACCOUNTABLE FOR
THE QUANTITY AND QUALITY OF WORK PERFORMED. WHILE SOME OF THE SMALL
SHOP SUPERVISORS ASSUMED THEIR NEW RESPONSIBILITIES IMMEDIATELY AFTER
THEIR CHANGE IN STATUS ON JUNE 26, 1978, OTHERS WAITED A PERIOD OF TIME
BEFORE THEY BEGIN FULFILLING ALL OF THEIR RESPONSIBILITIES.
NEVERTHELESS, THE AUTHORITY FINDS THAT ALL THE SMALL SHOP SUPERVISORS
WERE RESPONSIBLE FOR PERFORMING THE SUPERVISORY DUTIES OUTLINED IN THEIR
JOB DESCRIPTION AS OF JUNE 26, 1978, AND THAT THEY ARE ALL EXERCISING
THESE RESPONSIBILITIES.
UNDER ALL THE ABOVE CIRCUMSTANCES, THE AUTHORITY FINDS THAT THE SMALL
SHOP SUPERVISORS HEREIN ARE SUPERVISORS WITHIN THE MEANING OF SECTION
2(C) OF THE ORDER. /1/ THUS, THE RECORD CLEARLY ESTABLISHES THAT
EMPLOYEES IN THESE POSITIONS ARE AUTHORIZED, AND EITHER HAVE OR WILL BE
REQUIRED TO EXERCISE THE AUTHORITY, TO EFFECTIVELY DIRECT WORK FOR THEIR
SUBORDINATES, TO INITIATE DISCIPLINARY ACTION, TO APPROVE LEAVE, TO
EVALUATE EMPLOYEES, AND TO RECOMMEND THE HIRING OF EMPLOYEES.
CONSEQUENTLY, THE AUTHORITY FINDS THAT THE ACTIVITY'S TERMINATION OF
DUES WITHHOLDING FOR THE SMALL SHOP SUPERVISORS, WITH THE EXCEPTION
NOTED BELOW, WAS PRIVILEGED, AND THE AUTHORITY SHALL ORDER THAT THE
COMPLAINT BE DISMISSED IN THAT REGARD.
AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, THE FABRIC WORKER POSITION
(WG-11, JOB NO. F9214000) PRESENTLY HELD BY EMPLOYEE JAMES E. NEWMAN,
HAS NO SUBORDINATE EMPLOYEES OVER WHOM HE EXERCISES ANY AUTHORITY.
THEREFORE, THE AUTHORITY FINDS THAT THE INCUMBENT OF THE FABRIC WORKER,
WG-11 POSITION IS NOT A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER AND ADOPTS THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THE
ACTIVITY VIOLATED SECTION 19(A)(1) OF THE ORDER BY WITHDRAWING DUES
WITHHOLDING PRIVILEGES FOR THE INCUMBENT OF THIS POSITION SUBSEQUENT TO
JULY 2, 1978. /2/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE ADJUTANT GENERAL, GEORGIA NATIONAL GUARD, DEPARTMENT OF
DEFENSE, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING OR COERCING UNIT EMPLOYEE JAMES E.
NEWMAN BY ERRONEOUSLY DETERMINING THAT HE IS A SUPERVISOR WITHIN THE
MEANING OF SECTION 2(C) OF THE EXECUTIVE ORDER 11491, AS AMENDED; BY
REFUSING TO RECOGNIZE HIS EXCLUSIVE REPRESENTATIVE, GEORGIA ASSOCIATION
OF CIVILIAN TECHNICIANS; AND BY CANCELLING HIS DUES WITHHOLDING
AUTHORIZATION EXECUTED ON BEHALF OF THAT LABOR ORGANIZATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER 11491, AS AMENDED:
(A) ACCORD APPROPRIATE RECOGNITION TO GEORGIA ASSOCIATION OF CIVILIAN
TECHNICIANS AS THE EXCLUSIVE REPRESENTATIVE OF UNIT EMPLOYEE JAMES E.
NEWMAN.
(B) COMMENCING WITH THE FIRST PAY PERIOD AFTER THE DATE OF THIS ORDER
DEDUCT REGULAR AND PERIODIC DUES OF THE GEORGIA ASSOCIATION OF CIVILIAN
TECHNICIANS FROM THE PAY OF JAMES E. NEWMAN, AND REMIT THE DUES TO THE
ABOVE-NAMED LABOR ORGANIZATION, PROVIDED SUCH EMPLOYEE HAS MADE A
VOLUNTARY ALLOTMENT FOR THAT PURPOSE IN ACCORDANCE WITH THE EXISTING
AGREEMENT COVERING VOLUNTARY ALLOTMENTS FOR PAYMENTS OF DUES WITH
GEORGIA ASSOCIATION OF CIVILIAN TECHNICIANS.
(C) POST AT ALL FACILITIES AND INSTALLATIONS OF THE GEORGIA NATIONAL
GUARD, DEPARTMENT OF DEFENSE, COPIES OF ATTACHED NOTICE MARKED APPENDIX
ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE ADJUTANT GENERAL,
GEORGIA NATIONAL GUARD, DEPARTMENT OF DEFENSE, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO INSURE THAT
SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT ALL OTHER ALLEGATIONS IN THE COMPLAINT IN
CASE NO. 40-9032(CA) BE, AND THEY HEREBY ARE, DISMISSED. /3/
ISSUED, WASHINGTON, D.C., FEBRUARY 29, 1980.
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE UNIT EMPLOYEE JAMES
E. NEWMAN BY ERRONEOUSLY DETERMINING THAT HE IS A SUPERVISOR WITHIN THE
MEANING OF SECTION 2(C) OF EXECUTIVE ORDER 11491, AS AMENDED; BY
REFUSING TO RECOGNIZE HIS EXCLUSIVE REPRESENTATIVE, GEORGIA ASSOCIATION
OF CIVILIAN TECHNICIANS; AND BY CANCELLING HIS DUE WITHHOLDING
AUTHORIZATION EXECUTED ON BEHALF OF THAT LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, SUITE 501, NORTH
WING, 1776 PEACHTREE STREET, NW., ATLANTA, GEORGIA 30309, AND WHOSE
TELEPHONE NUMBER IS (404) 881-2324.
BENJAMIN H. BRUCE
COLONEL, GEORGIA AIR NATIONAL GUARD
PERSONNEL OFFICER
P.O. BOX 17965
ATLANTA, GEORGIA
FOR THE RESPONDENT
NEIL A. BATES
NATIONAL FIELD REPRESENTATIVE
ASSOCIATION OF CIVILIAN TECHNICIANS
165 W. WIEUCA ROAD, NE, ROOM 204
ATLANTA, GEORGIA 30342
FOR THE COMPLAINANT
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON AUGUST 15, 1978 BY
THE GEORGIA ASSOCIATION OF CIVILIAN TECHNICIANS, ACT, INC. (HEREINAFTER
CALLED THE COMPLAINANT OR UNION), AGAINST THE ADJUTANT GENERAL, GEORGIA
NATIONAL GUARD, DEPARTMENT OF DEFENSE, ATLANTA, GEORGIA (HEREINAFTER
CALLED THE RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(1), (2) AND (6) OF THE EXECUTIVE ORDER BY MAKING A
UNILATERAL CHANGE IN THE BARGAINING UNIT BY UNILATERALLY DETERMINING
THAT TWENTY-FOUR EMPLOYEES WERE EXCLUDED FROM THE EXCLUSIVE UNIT AS
SUPERVISORS AND TERMINATING THEIR UNION DUES WITHHOLDING.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN ATLANTA,
GEORGIA. BOTH PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO
BE HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND CROSS-EXAMINE
WITNESSES. POST-HEARING BRIEFS HAVE BEEN RECEIVED FROM BOTH PARTIES AND
DULY CONSIDERED.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE,
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
THE COMPLAINANT IS THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE
OF A UNIT OF FEDERAL EMPLOYEES EMPLOYED BY THE RESPONDENT.
THE AUTHORITY TO CLASSIFY POSITIONS AND ESTABLISH PAY GRADES FOR BOTH
THE ARMY AND AIR NATIONAL GUARD TECHNICIANS IS THE RESPONSIBILITY OF THE
CHIEF, NATIONAL GUARD BUREAU, AND SUCH AUTHORITY HAS NOT BEEN DELEGATED
TO THE VARIOUS STATES. (MGT. EXH. Y-1).
DURING THE PERIOD DECEMBER 10, 1974 TO MAY 16, 1978 IT WAS THE POLICY
OF THE NATIONAL GUARD BUREAU THAT FIRST LEVEL SUPERVISION SHOULD NOT
EXTEND BELOW THE FOREMAN (WS) LEVEL. (MGT. EXH. Y-1). CONSEQUENTLY, IT
WAS THE POLICY OF THE RESPONDENT THAT ONLY WS'S COULD BE DESIGNATED AS
SUPERVISORS, OR RENDER PERFORMANCE RATINGS. (EXH. NO. C-21).
THE POLICY AS IT AFFECTED CERTAIN SMALL SHOP CHIEFS WAS CHANGED BY
THE NATIONAL GUARD BUREAU ON MAY 16, 1978. FOLLOWING A REVIEW OF AIR
NATIONAL GUARD SMALL SHOP CHIEF POSITIONS, THE STATES WERE DIRECTED TO
ADD TO CERTAIN SMALL SHOP CHIEF POSITION DESCRIPTIONS INFORMATION
REFLECTING THAT THE INCUMBENT HAS "SUBSTANTIAL SUPERVISORY AUTHORITY",
INCLUDING "SCHEDULES LEAVE, APPRAISES PERFORMANCE, RECOMMENDS
PROMOTIONS, AND INITIATES DISCIPLINARY ACTION AS NEEDED." (JOINT EXH.
1). IN VIEW OF THIS CHANGE, THE NATIONAL GUARD BUREAU ALSO DIRECTED
THAT THE STATES TAKE THE FOLLOWING ACTION:
STATES ARE REQUESTED TO REVIEW DUTIES OF INCUMBENTS IN TYPE II, TYPE
IIA, AND TYPE III
SITUATIONS AND DISCUSS ANY CHANGES IN STATUS BASED ON THESE
INSTRUCTIONS WITH THE LOCAL LABOR
REPRESENTATIVE. IF ANY DOUBT EXISTS AFTER REVIEW OR DISCUSSION ON
INCUMBENT'S STATUS UNDER
THE LMR (LABOR MANAGEMENT RELATIONS) DEFINITION, THEN A CU
(CLARIFICATION OF EXISTING UNIT)
PETITION SHOULD BE FILED MUTUALLY WITH THE DEPARTMENT OF LABOR FOR
RESOLUTION. (EXH. NO. U-1).
PURSUANT TO THE DIRECTIVE OF THE NATIONAL GUARD BUREAU, THE
RESPONDENT DETERMINED THE IDENTITIES OF THE INDIVIDUALS FILLING EACH OF
24 AFFECTED POSITIONS, ADDED THE SUPERVISORY RESPONSIBILITIES TO THEIR
POSITION DESCRIPTIONS, AND NOTIFIED THE UNION. (TR. 34-35).
THERE WERE TWO PERIODS OF DISCUSSION ON MAY 30 AND JUNE 15, 1978.
(STIPULATION). THE UNION OBJECTED TO THE INDIVIDUALS BEING REMOVED FROM
THE BARGAINING UNIT. RESPONDENT INDICATED THAT IF THERE WERE OBJECTIONS
TO SPECIFIC INDIVIDUALS, THESE WOULD BE RECONSIDERED. (TR. 32-33). THE
UNION DID NOT CHALLENGE ANY INDIVIDUAL POSITIONS, BUT, RATHER,
CHALLENGED ALL POSITIONS. (STIPULATION). THE UNION'S POSITION WAS THAT
A WG, AS OPPOSED TO A WS, COULD NOT BE A SUPERVISOR. (TR. 41). UNDER
CLASSIFICATION STANDARDS, AN INDIVIDUAL CANNOT BE CLASSIFIED WITH A WS
PAY GRADE UNLESS HE HAS THREE OR MORE SUBORDINATES ASSIGNED.
(STIPULATION). NO DISCUSSIONS WERE HELD ON SPECIFIC NAMES OR POSITIONS,
ONLY ON THE OVERALL MATTER. (STIPULATION).
IN THE PAST THE UNION, UPON BEING ADVISED OF CHANGES IN THE LIST OF
MANAGEMENT OFFICIALS AND SUPERVISORS, HAD OBJECTED TO THE DESIGNATION OF
CERTAIN POSITIONS AS SUPERVISORY. THE UNION'S POSITION WAS THEN
REVIEWED BY RESPONDENT, AND THE INDIVIDUAL WAS EITHER REINSTATED IN, OR
REMOVED FROM, THE BARGAINING UNIT. (TR. 33-34, RESP. EXH. V-1-X-3).
SINCE THE UNION OBJECTED TO ALL 24 POSITIONS BEING DESIGNATED AS
SUPERVISORY AND REMOVED FROM THE BARGAINING UNIT, INSTEAD OF MERELY
SOME, RESPONDENT DID NOT CONSIDER FILING A CU PETITION. (TR. 41).
THERE IS NO EVIDENCE THAT COMPLAINANT OFFERED TO FILE A CU PETITION, OR
SUGGESTED THAT A JOINT CU PETITION BE FILED.
FOLLOWING THE LACK OF RESOLUTION, RESPONDENT UNILATERALLY DECLARED
EACH SMALL SHOP CHIEF A SUPERVISOR ON JUNE 26, 1978, AND REQUESTED THAT
THE UNION DUES WITHHOLDING BE TERMINATED ON JULY 2, 1978, ON THE BASIS
THAT THESE SUPERVISORS WERE OUTSIDE THE UNIT FOR WHICH THE LABOR
ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION. TWENTY-FOUR
EMPLOYEES WERE INCLUDED. (JOINT EXH. 2; COMP. EXH. C-2; STIPULATION).
THE UNION'S CHARGE AND COMPLAINT FOLLOWED. SUBSEQUENTLY, ON JULY 31,
1978 AND AUGUST 24, 1978, THE RESPONDENT RECINDED ITS LISTING OF TWO
INDIVIDUALS AS BEING ERRONEOUSLY INCLUDED IN THE LISTING, LEAVING THE
FOLLOWING 22 POSITIONS AFFECTED: (TABLE OMITTED)
DISCUSSION
THE ASSIGNMENT OF DUTIES IS A RESERVED MANAGEMENT RIGHT UNDER SECTION
12(B) OF THE ORDER, AND JOB CONTENT IS EXCLUDED FROM THE OBLIGATION TO
BARGAIN UNDER SECTION 11(B) OF THE ORDER. SEE INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, LOCAL F-111 AND GRIFFIN AIR FORCE BASE, ROME, NEW
YORK, 1 FLRC 322, FLRC NO. 71A-30 (1973) AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 987, AFL-CIO AND DEPARTMENT OF THE AIR
FORCE, ROBINS AIR FORCE BASE, 5 FLRC 441, FLRC NO. 76A-139 (1977).
HOWEVER, IT IS WELL ESTABLISHED THAT WHEN AN AGENCY UNILATERALLY
DETERMINES THE UNIT STATUS OF EMPLOYEES, IT ACTS AT ITS PERIL, SINCE AN
ERRONEOUS DETERMINATION COULD SUPPORT A VIOLATION OF THE ORDER. U.S.
MARINE CORPS AIR STATION, EL TORO, A/SLMR NO. 560, 4 FLRC 218, FLRC NO.
75A-115 (1976). THIS IS SO BECAUSE AN ERRONEOUS DETERMINATION WOULD BE
VIEWED AS TANTAMOUNT TO A UNILATERAL WITHDRAWAL OF RECOGNITION WITH
RESPECT TO A PART OF AN EXCLUSIVELY RECOGNIZED UNIT. DEPARTMENT OF THE
NAVY, U.S. WEAPONS STATION, SEAL BEACH, CALIFORNIA, A/SLMR NO. 827, 7
A/SLMR 331 (1977).
THE ISSUE FOR DETERMINATION, THEN, IS WHETHER RESPONDENT CORRECTLY
DETERMINED THAT THE 22 EMPLOYEES IN QUESTION WERE SUPERVISORS AND, THUS,
EXCLUDED FROM THE EXISTING UNIT.
SECTION 2(C) OF THE ORDER DEFINES "SUPERVISOR" AS FOLLOWS:
'SUPERVISOR' MEANS AN EMPLOYEE HAVING AUTHORITY IN THE INTEREST OF AN
AGENCY, TO HIRE,
TRANSFER, SUSPEND, LAYOFF, RECALL, PROMOTE, DISCHARGE, ASSIGN,
REWARD, OR DISCIPLINE OTHER
EMPLOYEES, OR RESPONSIBILITY TO DIRECT THEM, OR ADJUST THEIR
GRIEVANCES, OR EFFECTIVELY TO
RECOMMEND SUCH ACTION, IF IN CONNECTION WITH THE FOREGOING THE
EXERCISE OF AUTHORITY IS NOT OF
A MERELY ROUTINE OR CLERICAL NATURE, BUT REQUIRES THE USE OF
INDEPENDENT JUDGMENT;
THE PURPOSES AND INTENT OF THE ORDER AS AMENDED, ARE CLEARLY STATED
IN THE REPORT AND RECOMMENDATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL
ON THE AMENDMENT OF EXECUTIVE ORDER 11491, AS AMENDED, JANUARY 1975.
THE COUNCIL AGREES WITH THE VIEW EXPRESSED IN THE REVIEW THAT ONLY
GENUINE SUPERVISORY
POSITIONS SHOULD BE EXCLUDED FROM BARGAINING UNITS. THE COUNCIL
WISHES TO NOTE THAT THE
DEFINITION IN THE ORDER WAS DESIGNED TO DO THIS AND CONTAINS A NUMBER
OF QUALIFICATIONS TO
THIS END. FOR EXAMPLE-- 'IN THE INTEREST OF AN AGENCY,' 'RESPONSIBLY
TO DIRECT
(EMPLOYEES),' 'EFFECTIVELY TO RECOMMEND,' AND 'EXERCISE OF AUTHORITY
. . . NOT OF A MERELY
ROUTINE OR CLERICAL NATURE, BUT (REQUIRING) THE USE OF INDEPENDENT
JUDGMENT-- ARE LIMITATIONS
WHICH WERE DESIGNED TO ASSURE THAT PERSONS DETERMINED TO BE
SUPERVISORS WOULD POSSESS ACTUAL
AUTHORITY AS DISTINCT FROM WORK LEADERS, AND WOULD BE FOUND TO BE IN
BONAFIDE CONFLICT OF
INTEREST SITUATIONS IF NOT EXCLUDED FROM BARGAINING UNITS. THE
COUNCIL BELIEVES THAT THE
CONTINUED CAREFUL APPLICATION BY THE ASSISTANT SECRETARY OF THESE
QUALIFICATIONS AND THE
MAKING OF SUPERVISORY DETERMINATIONS WILL AID IN IDENTIFYING GENUINE
SUPERVISORY POSITIONS.
ANY INDIVIDUAL WHO POSSESSES THE AUTHORITY TO PERFORM A SINGLE
FUNCTION DESCRIBED IN SECTION 2(C), PROVIDED HE DOES SO IN A MANNER
REQUIRING THE USE OF INDEPENDENT JUDGMENT, IS A SUPERVISOR AND MUST BE
EXCLUDED FROM THE UNIT. UNITED STATES NAVAL WEAPONS CENTER, CHINA LAKE,
CALIFORNIA, FLRC NO. 72A-11 (1973). SUPERVISORY STATUS WAS INTENDED TO
BE DETERMINED ON THE BASIS OF THE AUTHORITY OF THE INDIVIDUAL, NOT ON
THE PRECISE NUMBER OF SUBORDINATES. UNITED STATES DEPARTMENT OF
AGRICULTURE, NORTHERN MARKETING AND NUTRITION RESEARCH DIVISION, PEORIA,
ILLINOIS, A/SLMR NO. 120, FLRC NO. 72A-4, 1 FLRC 294 (1973). NOR DOES
IT MATTER THAT SUCH AUTHORITY IS EXERCISED OVER MILITARY PERSONNEL.
DEPARTMENT OF THE AIR FORCE, MCCONNELL AIR FORCE BASE, KANSAS, A/SLMR
NO. 134, FLRC NO. 72A-15 (1973). HOWEVER, THERE MUST BE EVIDENCE OF
ACTUAL SUPERVISORY AUTHORITY. POSITION DESCRIPTIONS OR JOB
CLASSIFICATION STANDARDS ARE INSUFFICIENT TO ESTABLISH SUPERVISORY
STATUS WITHIN THE MEANING OF THE ORDER. CF. DEPARTMENT OF THE NAVY,
NAVAL TRAINING CENTER, SAN DIEGO, CALIFORNIA, A/SLMR NO. 1121 (1978);
UNITED STATES ARMY AND AIR FORCE EXCHANGE SERVICE, REDSTONE ARSENAL
EXCHANGE, REDSTONE ARSENAL, ALABAMA, A/SLMR NO. 491, 5 A/SLMR 171
(1975).
EXECUTIVE ORDER 11838 AMENDED EXECUTIVE ORDER 11491 TO ELIMINATE
PERFORMANCE EVALUATION AS A SOLE CRITERION FOR SUPERVISORY STATUS WHERE
THE EMPLOYEE PERFORMS NO OTHER SUPERVISORY FUNCTIONS. HOWEVER, SUCH
EVALUATIONS MAY BE CONSIDERED IN CONJUNCTION WITH OTHER AUTHORITY VESTED
IN AN INDIVIDUAL IN DETERMINING AN EMPLOYEE'S SUPERVISORY STATUS.
UNITED STATES FOREST SERVICE, SALMON NATIONAL FOREST, SALMON, IDAHO,
A/SLMR NO. 556, 5 A/SLMR 586 (1975), CITING THE REPORT AND
RECOMMENDATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL (JANUARY 1975).
FINDINGS AND CONCLUSIONS BY EMPLOYEES
THE PARTIES STIPULATED THAT NO SMALL SHOP CHIEF HAS THE AUTHORITY TO
HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE OR DISCHARGE OTHER
EMPLOYEES. (STIPULATION).
116TH TACTICAL FIGHTER WING
AIRCRAFT REFUELING VEHICLE OPERATOR F6417000 WG-09 MICHAEL F.
GRIFFIN
THE INCUMBENT IS RESPONSIBLE TO A GS-12 SUPPLY MANAGEMENT OFFICER AND
HAS ONE WG-8 AND ONE FULL-TIME MILITARY PERSON REPORTING TO HIM. HE
DIRECTS AND ASSIGNS THESE EMPLOYEES TO REFUEL AIRCRAFT AND WORKS WITH
THEM IN DRIVING A VEHICLE AND REFUELING AIRCRAFT. HE APPROVES THEIR
LEAVE, EVALUATES THEIR PERFORMANCE, AND SCHEDULES THE WORK HOURS OF THE
ACTIVE DUTY PERSON. HE EFFECTIVELY RECOMMENDED THE SELECTION OF THE
ACTIVE DUTY AIRMAN.
BASED ON THE FOREGOING, I FIND THAT THE EMPLOYEE IS A SUPERVISOR
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
FABRIC WORKER F9214000 WG-11 CLARENCE R. JACKSON
THE INCUMBENT IS RESPONSIBLE TO A GS-13 AIR OPERATIONS OFFICER AND
HAS FOUR EMPLOYEES REPORTING TO HIM. HE APPROVES LEAVE, EVALUATES THEIR
PERFORMANCE, AND HAS, ON ONE OCCASION, REPRIMANDED AN EMPLOYEE, ALTHOUGH
THERE WAS NO SHOWING OF WHETHER THIS WAS A MINOR OR SERIOUS MATTER. IT
WAS SHOWN THAT THE INCUMBENT WORKS WITH EACH OF THE OTHER EMPLOYEES UP
TO 50 PERCENT OF THE TIME, AND THAT MOST OF THE WORK IS DONE ON A TIME
PHASE INSPECTION CYCLE.
THE RECORD FAILS TO SHOW THAT SUCH AUTHORITY AS IS EXERCISED BY AN
EMPLOYEE IN THIS CLASSIFICATION REQUIRES THE EXERCISE OF INDEPENDENT
JUDGMENT. THERE WAS NO SHOWING THAT SUCH DIRECTION AS IS EXERCISED IS
OTHER THAN THAT OF A MORE EXPERIENCED EMPLOYEE ASSISTING LESS
EXPERIENCED EMPLOYEES. ACCORDINGLY, I FIND THAT AN EMPLOYEE IN THIS
CLASSIFICATION IS NOT A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C).
INSTRUMENT MECHANIC F4492000 WG-12 WILLIAM D. LAVALLE
AT THE TIME OF THE ALLEGED UNFAIR LABOR PRACTICE THE INCUMBENT WAS
RESPONSIBLE TO A WS-11 AND HAD TWO WG-11S REPORTING TO HIM. HE WORKED
ALONGSIDE THE TWO WG-11S UP TO 50 PERCENT OF THE TIME. HE REVIEWED
THEIR POSITION DESCRIPTIONS AND RATED THEIR PERFORMANCE. HE REPRIMANDED
THEM FOR VERY MINOR THINGS, BUT REFERRED SERIOUS MATTERS TO HIS
SUPERVISOR. HE DID NOT APPROVE THEIR LEAVE. TWO ADDITIONAL PERSONNEL
WERE ADDED TO THE SHOP IN OCTOBER 1978 AND INCUMBENT SELECTED THEM;
HOWEVER, HE WAS PROMOTED TO A WS-8 FOREMAN POSITION AT ABOUT THIS SAME
TIME ON OCTOBER 8.
THE RECORD FAILS TO SHOW THAT SUCH AUTHORITY AS WAS EXERCISED BY AN
EMPLOYEE IN THIS CLASSIFICATION AT THE TIME IT WAS DECLARED TO BE
SUPERVISORY REQUIRED THE EXERCISE OF INDEPENDENT JUDGMENT. ACCORDINGLY,
I FIND THAT AN EMPLOYEE IN THIS CLASSIFICATION WAS NOT A SUPERVISOR AT
THE TIME WITHIN THE MEANING OF SECTION 2(C).
ELECTRICIAN MECH. (FLIGHT SIMULATION) F3415000 WG-14 LEON M. BRADY
THE INCUMBENT IS RESPONSIBLE TO A WS-12 GENERAL FOREMAN AND HAS ONE
WG-12 REPORTING TO HIM. IN ADDITION TO WORKING WITH THE WG-12 ON THE
FLIGHT SIMULATOR, THE INCUMBENT ESTABLISHES PRIORITIES FOR WORK, RATES
THE PERFORMANCE OF THE WG-12, AND EFFECTIVELY RECOMMEND THE APPROVAL OF
LEAVE, CHANGES IN POSITION DESCRIPTIONS, AND THE HIRING OF PERSONNEL TO
FILL VACANCIES IN HIS SHOP.
BASED ON THE FOREGOING, I FIND THAT THE EMPLOYEE IN THIS
CLASSIFICATION IS A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER.
AIRCRAFT ELECTRICIAN F4538000 WG-12 JAMES D. GARRISON
AT THE TIME OF THE ALLEGED UNFAIR LABOR PRACTICE THE INCUMBENT WAS
RESPONSIBLE TO AN AIRCRAFT MECHANIC FOREMAN WS-10 AND HAD ONE AIRCRAFT
ELECTRICIAN WG-10 REPORTING TO HIM. HE WORKED SIDE BY SIDE ON THE
EQUIPMENT WITH THE EMPLOYEE FOR APPROXIMATELY 60-90% OF THE TIME WITH
THE PRIORITY OF WORK BEING ESTABLISHED PRIMARILY BY MAINTENANCE CONTROL.
INCUMBENT APPROVED THE LEAVE OF THE WG-10, REVIEWED HIS POSITION
DESCRIPTION ON AN ANNUAL BASIS, AND EVALUATED HIS PERFORMANCE.
IN OCTOBER 1978 TWO EMPLOYEES WERE ADDED TO THE SHOP, AND THE
INCUMBENT EFFECTIVELY RECOMMENDED THEM FOR THE POSITION; HOWEVER, THE
INCUMBENT WAS PROMOTED TO A WS-7 AIRCRAFT ELECTRICIAN FOREMAN POSITION
AT ABOUT THIS SAME TIME.
THE RECORD FAILS TO SHOW THAT AT THE TIME THE WG-12 POSITION WAS
DECLARED TO BE SUPERVISORY THE EMPLOYEE IN THIS CLASSIFICATION EXERCISED
AUTHORITY REQUIRING INDEPENDENT JUDGMENT AS DISTINCT FROM THAT ROUTINELY
EXERCISED BY A WORK LEADER.
165TH TACTICAL AIRLIFT GROUP
PNEUMATIC SYSTEMS MECHANIC F4535000 WG-12 DONALD S. FANDRICH
AIRCRAFT PNEUMATIC SYSTEMS MECHANIC F4541000 WG-12 FRANK W. STETSON
THE INCUMBENT OF EACH OF THESE POSITIONS IS RESPONSIBLE TO AN
AIRCRAFT MECHANIC GENERAL FOREMAN WS-12 AND HAS ONE PNEUMATIC SYSTEMS
MECHANIC WG-10 REPORTING TO HIM. INCUMBENT AND THE EMPLOYEE WORK SIDE
BY SIDE. THE QUALITY AND QUANTITY OF THE WORK IS ESTABLISHED BY
WORKLOAD CONTROL AND PUBLISHED STANDARDS. INCUMBENT HAS NEVER HAD
OCCASION TO DISCIPLINE THE WG-10. THE INCUMBENT FINALLY STARTED
APPROVING THE WG-10'S LEAVE REQUESTS ONLY TWO WEEKS BEFORE THE HEARING.
THE INCUMBENT IS SCHEDULED TO PREPARE THE EMPLOYEE'S NEXT PERFORMANCE
EVALUATION; HOWEVER, HE HAS NOT DONE SO IN THE PAST. IN THE CASE OF
THE PNEUMATIC SYSTEMS MECHANIC, THE EMPLOYEE HAS BEEN DETAILED TO
ANOTHER SHOP FOR APPROXIMATELY FOUR MONTHS SINCE INCUMBENT WAS
DESIGNATED A SUPERVISOR AND STILL SPENDS A LARGE PORTION OF HIS TIME
THERE.
THE RECORD FAILS TO SHOW THAT SUCH AUTHORITY AS IS EXERCISED BY AN
EMPLOYEE IN THESE CLASSIFICATIONS REQUIRES THE EXERCISE OF INDEPENDENT
JUDGMENT. ACCORDINGLY, I FIND THAT AN EMPLOYEE IN THESE CLASSIFICATIONS
IS NOT A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C).
FABRIC WORKER F9214000 WG-11 JAMES E. NEWMAN
AS OF THE TIME OF THE HEARING THE INCUMBENT WAS THE ONLY PERSON IN A
SHOP WHICH IS RESPONSIBLE FOR THE INSPECTION AND PREPARATION OF
FLOTATION EQUIPMENT, SUCH AS LIFE RAFTS AND PRESERVERS. TWO OTHER
FABRIC WORKERS, A WG-11 AND WG-9, WERE UNDER THE CONTROL OF THE
MAINTENANCE SECTION, AND THEIR LEAVE WAS FINALLY APPROVED AND THEIR
PERFORMANCE EVALUATIONS PERFORMED BY A SUPERVISOR IN THAT SECTION.
SINCE THESE EMPLOYEES ACTUALLY WORK ON FLOTATION EQUIPMENT, THEIR WORK
IS INSPECTED BY THE INCUMBENT USING PUBLISHED DIRECTIVES AS A GUIDE.
DUE TO THE CLOSE RELATIONSHIP OF THE WORK, A REALIGNMENT IS PLANNED
WHICH MAY RESULT IN THESE EMPLOYEES COMING UNDER THE SUPERVISION OF THE
INCUMBENT SOMETIME IN THE NEAR FUTURE.
THE RECORD DEMONSTRATES THAT AT THE TIME THIS WG-11 POSITION WAS
DETERMINED BY RESPONDENT TO BE THAT OF A SUPERVISOR, THE INCUMBENT DID
NOT POSSESS THE AUTHORITY SET OUT IN SECTION 2(C), AND THE POSITION
SHOULD NOT HAVE BEEN REMOVED FROM THE UNIT.
INSTRUMENT MECHANIC F4492000 WG-12 JERRELL BAKER
THE INCUMBENT IS RESPONSIBLE TO A FOREMAN WS-10 AND HAS ONE
INSTRUMENT MECHANIC WG-11 REPORTING TO HIM. INCUMBENT APPROVES THE
LEAVE OF THE WG-11 AND EVALUATES HIS PERFORMANCE. HE SPENDS 95% OF HIS
TIME WORKING SIDE BY SIDE WITH THE HIGHLY QUALIFIED EMPLOYEE. THE
PRIORITIES, QUANTITY, AND QUALITY OF THE WORK ARE LARGELY DICTATED BY
MAINTENANCE CONTROL AND PUBLISHED DIRECTIVES. WHILE THE INCUMBENT
SOMETIMES DIRECTS AND SCHEDULES WORK FOR THE SUBORDINATE, THIS DUTY IS
SUFFICIENTLY ROUTINE IN NATURE AS TO BE MORE IN THE NATURE OF A WORK
LEADER RATHER THAN A SUPERVISOR.
IN THESE CIRCUMSTANCES, AND NOTING THAT THE RECORD REFLECTS THAT THE
DUTIES AND AUTHORITY OF THE INSTRUMENT MECHANIC, WG-12, WITH RESPECT TO
HIS SUBORDINATE ARE ROUTINE IN NATURE AND DO NOT REQUIRE THE USE OF
INDEPENDENT JUDGMENT AS HIS SUBORDINATE WORKS WITHIN WELL ESTABLISHED
GUIDELINES, I FIND THAT THE EMPLOYEE IN THIS CLASSIFICATION WAS NOT A
SUPERVISOR WITHIN THE MEANING OF THE ORDER AND SHOULD NOT HAVE BEEN
REMOVED FROM THE UNIT.
117TH TACTICAL CONTROL SQUADRON
ELECTRONIC MECHANIC (RADIO) F3071000 WG-14 JACK H. VINALL
ELECTRONIC MECHANIC (RADAR) F3075000 WG-14 GEORGE F. CUNNINGHAM
ELECTRONIC MECHANIC (POWER) F3079000 WG-13 JOSEPH H. WILHARM, JR.
ELECTRONIC MECHANIC (TELEPHONE) F3083000 WG-14 DONALD E. PEPPER
ELECTRONIC MECHANIC (COMPUTER) F3146000 WG-14 STEVE STAFFORD
THE INCUMBENTS ARE RESPONSIBLE TO A MAINTENANCE OFFICER, GS-11, WHO
HAS ADDITIONAL RESPONSIBILITIES FOR SIX OTHER EMPLOYEES. EXCEPT FOR THE
ELECTRONIC MECHANIC (COMPUTER), WHO HAS ONE WG-12 REPORTING TO HIM, THE
OTHER FOUR SMALL SHOP CHIEFS EACH HAVE TWO EMPLOYEES REPORTING. THE
GS-11 HAS DELEGATED TO EACH OF THE SMALL SHOP CHIEFS FULL RESPONSIBILITY
FOR THEIR SHOPS. THEY EACH ATTEND A WEEKLY SUPERVISORS' MEETING. THEY
PLAN FOR, SCHEDULE, AND DIRECT THEIR EMPLOYEES IN THE PERFORMANCE OF A
SUBSTANTIAL AMOUNT OF NON-ROUTINE WORK, APPROVE LEAVE, REVIEW POSITION
DESCRIPTIONS, EVALUATE JOB PERFORMANCE, AND CAN EFFECTIVELY COUNSEL
EMPLOYEES AND RECOMMEND DISCIPLINE.
I FIND THAT EACH OF THESE EMPLOYEES IS A SUPERVISOR WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER.
2830 COMBAT COMMUNICATIONS SQUADRON
ELECTRONIC MECHANIC (POWER) F3079000 WG-13 RICHARD P. CASHETT
INCUMBENT IS RESPONSIBLE TO A SUPERVISORY ELECTRONIC TECHNICIAN,
GS-11, WHO HAS OTHER RESPONSIBILITIES. INCUMBENT HAS TWO WG-11S
REPORTING TO HIM. HE SPENDS 60-70% OF HIS WORK WORKING WITH THE TWO
MECHANICS AND THE REST OF THE TIME SUPERVISING THEIR WORK. HE
ESTABLISHES PRIORITIES ON NON-ROUTINE WORK, APPROVES LEAVE, REVIEWS
POSITION DESCRIPTIONS, EVALUATES PERFORMANCE, AND HAS EFFECTIVELY
RECOMMENDED AN APPLICANT TO FILL A VACANCY IN THE SHOP.
BASED ON THE FOREGOING, AND THE EVIDENCE OF THE EXERCISE OF
INDEPENDENT JUDGMENT, I FIND THAT THE EMPLOYEE IN THIS CLASSIFICATION IS
A SUPERVISOR UNDER SECTION 2(C) OF THE ORDER.
129TH TACTICAL CONTROL SQUADRON
ELECTRONIC MECHANIC (RADIO) F3071000 WG-14 FRANKIE D. WEST
ELECTRONIC MECHANIC (RADAR) F3075000 WG-14 CLYDE E. HARPER
POWERED SUPPORT SYSTEMS MECHANIC F4249000 WG-12 HAROLD G LIGHT
THE INCUMBENT SMALL SHOP CHIEFS REPORT TO A MAINTENANCE OFFICER,
GS-11, WHO HAS OTHER RESPONSIBILITIES IN ADDITION TO SUPERVISION OF
THESE SHOPS. THE POWER SUPPORT SYSTEMS MECHANIC HAS FOUR SUBORDINATE
EMPLOYEES, THE ELECTRONIC MECHANIC (RADIO) THREE, AND THE ELECTRONIC
MECHANIC RADIO TWO. THE GS-11 HAS DELEGATED TO EACH OF THE SMALL SHOP
CHIEFS FULL RESPONSIBILITY FOR THEIR SHOPS. HE IS PHYSICALLY SEPARATED
FROM THE POWER SUPPORT SYSTEMS MECHANIC AND VISITS HIS SHOP ON A WEEKLY
BASIS, AND NORMALLY VISITS THE SHOP OF THE ELECTRONIC MECHANIC (RADIO)
ONLY ONCE OR TWICE A WEEK. EACH OF THE SMALL SHOP CHIEFS TESTIFIED THAT
THEY SPEND APPROXIMATELY 80% OF THEIR TIME IN SUPERVISORY DUTIES. THEY
APPROVE LEAVE, EVALUATE THEIR EMPLOYEES, AND ASSIGN AND DIRECT THEIR
WORK.
THE RECORD SHOWS THAT THESE EMPLOYEES EXERCISE INDEPENDENT JUDGMENT
WITHIN THE MEANING OF SECTION 2(C). ACCORDINGLY, I FIND THAT THESE
EMPLOYEES ARE SUPERVISORS.
AUTO MECHANIC F47244000 WG-12 JAMES G. BENNETT
THE INCUMBENT IS RESPONSIBLE TO THE DETACHMENT COMMANDER, GS-12, FOR
OPERATION OF THE VEHICLE MAINTENANCE SHOP AND HAS THREE SUBORDINATE
MECHANICS WHO ARE WG-10S. THE DETACHMENT COMMANDER VISITS THE SHOP ONLY
ONCE A WEEK AND HAS DELEGATED FULL RESPONSIBILITY TO THE INCUMBENT FOR
SUPERVISION OF THE PERSONNEL IN HIS SHOP. THE INCUMBENT ASSIGNS AND
DIRECTS THE MECHANICS, DETERMINES THE PRIORITY OF THE WORK, APPROVES
LEAVE, AND EFFECTIVELY EVALUATES THEIR PERFORMANCE AND RESOLVES
PROBLEMS.
I FIND THAT THIS EMPLOYEE IS A SUPERVISOR AS DEFINED IN THE ORDER.
224TH COMBAT COMMUNICATIONS SQUADRON
POWERED SUPPORT SYSTEMS MECHANIC F4249000 WG-12 WILLIAM S. SLOAN
INCUMBENT IS RESPONSIBLE TO THE DETACHMENT COMMANDER, GS-12, AND HAS
ONE MECHANIC WG-10 REPORTING TO HIM. INCUMBENT WORKS SIDE BY SIDE WITH
THE OTHER EMPLOYEE APPROXIMATELY 70% OF THE TIME. HE APPROVES THE LEAVE
OF THE SUBORDINATE EMPLOYEE AND EVALUATES HIS PERFORMANCE. THE RECORD
ALSO SHOWS THAT HE HAS EXERCISED INDEPENDENT JUDGMENT IN DISCIPLINING
THE EMPLOYEE.
THE RECORD SHOWS THAT THE EMPLOYEE EXERCISES INDEPENDENT JUDGMENT IN
A KEY AREA UNDER SECTION 2(C) OF THE ORDER. ACCORDINGLY, I CONCLUDE
THAT HE IS A SUPERVISOR.
AUTO MECHANIC F4724000 WG-12 ERNEST W. POPPELL
INCUMBENT IS RESPONSIBLE TO THE DETACHMENT COMMANDER, GS-12, FOR
OPERATION OF THE VEHICLE MAINTENANCE SHOP AND HAS TWO SUBORDINATE WG-10
MECHANICS. HE ASSIGNS PRIORITIES, DIRECTS THE WORK OF THESE EMPLOYEES,
EVALUATES THEIR PERFORMANCE, APPROVES LEAVE, AND HAS EFFECTIVELY
RECOMMENDED INDIVIDUALS FOR VACANCIES IN THE SHOP.
I FIND THAT THE EMPLOYEE IS A SUPERVISOR AS DEFINED IN THE ORDER.
202D ELECTRONICS INSTALLATION SQUADRON
AUTOMOBILE MECHANIC F4735000 WG-12 WALTER F. SHEFFIELD
INCUMBENT IS RESPONSIBLE TO THE DETACHMENT COMMANDER, GS-12, FOR
OPERATION OF THE VEHICLE MAINTENANCE SHOP. HE HAS TWO WG-10 MECHANICS
REPORTING TO HIM. INCUMBENT ASSIGNS PRIORITIES, RESPONSIBLY DIRECTS THE
EMPLOYEES IN THEIR WORK, APPROVES LEAVE, EVALUATES PERFORMANCE, AND HAS
AUTHORITY TO ADJUST THEIR GRIEVANCES AT THE FIRST LEVEL.
I FIND THAT THE EMPLOYEE IS A SUPERVISOR WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER.
CONCLUSION
SEVEN OF THE 22 EMPLOYEES, CLARENCE R. JACKSON, WILLIAM D. LAVALLE,
JAMES D. GARRISON, DONALD S. FANDRICH, FRANK W. STETSON, JAMES E.
NEWMAN, AND JERRELL BAKER, WERE ERRONEOUSLY DETERMINED TO BE SUPERVISORS
ON JUNE 26, 1978. THESE EIGHT EMPLOYEES REMAINED WITHIN THE EXCLUSIVE
BARGAINING UNIT REPRESENTED BY THE COMPLAINANT. RESPONDENT'S CONDUCT IN
THIS RESPECT CONSTITUTED AN IMPROPER WITHDRAWAL OF RECOGNITION FROM
COMPLAINANT WITH RESPECT TO A PART OF THE EXCLUSIVELY RECOGNIZED UNIT IN
DEROGATION OF RESPONDENT'S OBLIGATIONS PURSUANT TO SECTIONS 7 AND 10 OF
THE ORDER, TO ACCORD APPROPRIATE RECOGNITION TO A LABOR ORGANIZATION
QUALIFIED FOR SUCH RECOGNITION.
ALTHOUGH A VIOLATION OF SECTION 19(A)(5) OF THE ORDER WAS NOT ALLEGED
IN THE COMPLAINT, SUCH CONDUCT CONSTITUTES AN INDEPENDENT VIOLATION OF
SECTION 19(A)(1) IN THAT IT INTERFERED WITH, RESTRAINED AND COERCED
EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER. IT HAS BEEN
PREVIOUSLY HELD THAT THE RIGHT TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION AS PROVIDED FOR IN THE ORDER WOULD BE RENDERED MEANINGLESS
WHERE, AS HERE, AGENCY MANAGEMENT FAILS TO ACCORD APPROPRIATE
RECOGNITION TO A LABOR ORGANIZATION AND, WITH THAT ACTION NEGATES THE
BENEFITS WHICH FLOW FROM THE SELECTION OF AN EXCLUSIVE REPRESENTATIVE.
/4/ UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, NAVAL
AIR RESERVE TRAINING UNIT, MEMPHIS, TENNESSEE, A/SLMR NO. 106, 1 A/SLMR
490 (1971). ARMY AND AIR FORCE EXCHANGE SERVICE, MACDILL AIR FORCE BASE
EXCHANGE, MACDILL AIR FORCE BASE, FLORIDA, A/SLMR NO. 514, 5 A/SLMR 313
(1975), REVIEW DENIED, 3 FLRC 831, FLRC NO. 75A-61 (1975).
COMPLAINANT ALLEGES THAT RESPONDENT VIOLATED SECTION 19(A)(6) BY ITS
UNILATERAL CHANGE IN THE BARGAINING UNIT AND REVOCATION OF DUES
WITHHOLDING. HOWEVER, IT HAS BEEN PREVIOUSLY HELD THAT SUCH ACTIONS ARE
PART AND PARCEL OF THE FAILURE TO CONTINUE TO ACCORD APPROPRIATE
RECOGNITION AND ARE EMBRACED WITHIN VIOLATIONS OF SECTIONS 19(A)(5) AND
19(A)(1) AND DO NOT CONSTITUTE INDEPENDENT ACTS BY THE RESPONDENT
VIOLATIVE OF SECTION 19(A)(6). UNITED STATES DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE NAVY, NAVAL AIR RESERVE TRAINING UNIT, MEMPHIS,
TENNESSEE, SUPRA.
COMPLAINANT REQUESTS THAT THE RESPONDENT BE ORDERED TO REIMBURSE THE
UNION, AT NO EXPENSE TO THE EMPLOYEES, FOR BACK DUES IT WOULD OTHERWISE
HAVE RECIEVED HAD THESE MEMBERS NOT BEEN REMOVED FROM DUES WITHHOLDING.
THE ASSISTANT SECRETARY REJECTED SUCH A REMEDY IN UNITED STATES
DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, NAVAL AIR RESERVE
TRAINING UNIT, MEMPHIS, TENNESSEE, SUPRA. THE ASSISTANT SECRETARY NOTED
THAT THE OBLIGATIONS OF UNION MEMBERSHIP, SUCH AS THE PAYMENT OF DUES,
ARE STILL THE RESPONSIBILITY OF THE EMPLOYEE, AND HELD THAT THE
REINSTITUTION OF DUES DEDUCTION WOULD SATISFACTORILY REMEDY THE IMPROPER
CONDUCT.
THERE IS NO EVIDENCE THAT RESPONDENT VIOLATED SECTION 19(A)(2), AS
ALLEGED IN THE COMPLAINT.
RECOMMENDATIONS
UPON THE BASIS OF THE FOREGOING FINDINGS, CONCLUSIONS, AND THE ENTIRE
RECORD, I RECOMMEND THAT THE AUTHORITY DISMISS THAT PART OF THE
COMPLAINT ALLEGING THAT RESPONDENT VIOLATED SECTION 19(A)(2) AND (6) OF
THE ORDER AND ADOPT THE FOLLOWING ORDER CONCERNING THAT CONDUCT FOUND
TO
BE VIOLATIVE OF SECTION 19(A)(1):
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, 29
C.F.R. 203.26(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
REGULATIONS, 5 C.F.R. 2400.2(1979), THE AUTHORITY HEREBY ORDERS THAT THE
ADJUTANT GENERAL, GEORGIA NATIONAL GUARD, DEPARTMENT OF DEFENSE, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES
CLARENCE R. JACKSON, DONALD S. FANDRICH, FRANK W. STETSON, JAMES E.
NEWMAN, AND JERRELL BAKER BY ERRONEOUSLY DETERMINING THAT THEY ARE
SUPERVISORS UNDER SECTION 2(C) OF EXECUTIVE ORDER 11491, AS AMENDED,
REFUSING TO RECOGNIZE THEIR EXCLUSIVE REPRESENTATIVE, GEORGIA
ASSOCIATION OF CIVILIAN TECHNICIANS, ACT, INC., AND CANCELLING THEIR
DUES WITHHOLDING AUTHORIZATIONS EXECUTED ON BEHALF OF THAT LABOR
ORGANIZATION.
(B) IN ANY LIKE OR RELATED MATTER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) ACCORD APPROPRIATE RECOGNITION TO GEORGIA ASSOCIATION OF CIVILIAN
TECHNICIANS, ACT, INC., AS THE EXCLUSIVE REPRESENTATIVE OF UNIT
EMPLOYEES CLARENCE R. JACKSON, DONALD S. FANDRICH, FRANK W. STETSON,
JAMES E. NEWMAN, AND JERRELL BAKER.
(B) COMMENCING WITH THE FIRST PAY PERIOD AFTER THE DATE OF THIS ORDER
DEDUCT REGULAR AND PERIODIC DUES OF THE GEORGIA ASSOCIATION OF CIVILIAN
TECHNICIANS, ACT, INC. FROM THE PAY OF CLARENCE R. JACKSON, DONALD S.
FANDRICH, FRANK W. STETSON, JAMES E. NEWMAN, AND JERRELL BAKER, AND
REMIT THE DUES TO THE ABOVE-NAMED LABOR ORGANIZATION, PROVIDED SUCH
EMPLOYEES HAVE MADE VOLUNTARY ALLOTMENTS FOR THAT PURPOSE IN ACCORDANCE
WITH THE EXISTING AGREEMENT COVERING VOLUNTARY ALLOTMENTS FOR PAYMENT OF
DUES WITH GEORGIA ASSOCIATION OF CIVILIAN TECHNICIANS, ACT, INC.
(C) POST AT ALL FACILITIES AND INSTALLATIONS OF THE 116TH TACTICAL
FIGHTER WING AND THE 165TH TACTICAL AIRLIFT GROUP INSTALLATIONS COPIES
OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
ADJUTANT GENERAL AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
AUTHORITY IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 18, 1979
WASHINGTON, D.C.
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF EXECUTIVE ORDER
11491, AS AMENDED LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE UNIT EMPLOYEES
CLARENCE R. JACKSON, DONALD S. FANDRICH, FRANK W. STETSON, JAMES E.
NEWMAN, AND JERRELL BAKER BY ERRONEOUSLY DETERMINING THAT THEY ARE
SUPERVISORS UNDER SECTION 2(C) OF EXECUTIVE ORDER 11491, AS AMENDED,
REFUSING TO RECOGNIZE THEIR EXCLUSIVE REPRESENTATIVE, GEORGIA
ASSOCIATION OF CIVILIAN TECHNICIANS, ACT, INC., AND CANCELLING THEIR
DUES WITHHOLDING AUTHORIZATIONS EXECUTED ON BEHALF OF THAT LABOR
ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MATTER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
(AGENCY OF ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, SUITE 540, 1365
PEACHTREE STREET, NE., ATLANTA, GEORGIA 30309.
/1/ SEE U.S. AIR FORCE MILITARY AIRLIFT COMMAND, 76 MILITARY AIRLIFT
WING, 76 AIR BASE GROUP, ANDREWS AIR FORCE BASE, WASHINGTON, D.C., 2
FLRA NO. 83, INVOLVING ESSENTIALLY SIMILAR EMPLOYEES.
/2/ IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, WE CONCLUDE THAT
THE ACTIVITY VIOLATED SECTION 19(A)(1) OF THE ORDER BY IMPROPERLY
FAILING TO ACCORD APPROPRIATE RECOGNITION TO THE UNION HEREIN BY
REVOKING DUES WITHHOLDING PRIVILEGES FOR THE EMPLOYEE IT IMPROPERLY
CLASSIFIED AS SUPERVISORS.
/3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/4/ NO REMEDIAL ORDER IS CONSIDERED NECESSARY WITH RESPECT TO WILLIAM
D. LAVALLE AND JAMES D. GARRISON. THE RECORD REFLECTS, AND THE PARTIES
AGREE, THAT THEY HAVE SUBSEQUENTLY BEEN PROMOTED TO SUPERVISORY
POSITIONS OUTSIDE THE EXCLUSIVE RECOGNIZED UNIT.