[ v04 p754 ]
04:0754(99)PS
The decision of the Authority follows:
4 FLRA No. 99
Case No. 0-PS-15
INTERPRETATION AND GUIDANCE
INTRODUCTION
AS ANNOUNCED IN ITS NOTICE OF APRIL 1, 1980, /1/ THE AUTHORITY
DETERMINED, IN CONFORMITY WITH SECTION 2427.2 OF ITS RULES AND
REGULATIONS (5 C.F.R. 2427.2), AND THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET SEQ.), THAN AN
INTERPRETATION OF THE STATUTE WAS WARRANTED ON THE FOLLOWING QUESTION:
WHAT IS THE IMPACT, IF ANY, OF AN AGENCY DETERMINATION THAT AN
EMPLOYEE IS A SUPERVISOR OR
MANAGEMENT OFFICIAL FOR PURPOSES OF COVERAGE UNDER THE "MERIT PAY"
PROVISIONS OF THE CIVIL
SERVICE REFORM ACT OF 1978 (92 STAT. 1179) ON SUCH EMPLOYEE'S
INCLUSION IN A UNIT OF EXCLUSIVE
RECOGNITION UNDER SECTION 7112 OF THE STATUTE (92 STAT. 1200)? THE
AUTHORITY INVITED INTERESTED PERSONS TO EXPRESS THEIR VIEWS IN WRITING
CONCERNING THE QUESTION. THE RESPONSES SUBMITTED TO THE AUTHORITY BY
SEVEN LABOR ORGANIZATIONS AND SIX FEDERAL AGENCIES WERE DETAILED AND
HELPFUL AND HAVE BEEN CAREFULLY CONSIDERED. IN VIEW OF THE EXTENT AND
DETAIL OF THESE SUBMISSIONS, THE AUTHORITY HAS DETERMINED THAT NO USEFUL
PURPOSE WOULD BE SERVED BY PROVIDING FOR AN ORAL HEARING.
CONCLUSION
WHEN AN AGENCY DETERMINES THAT AN EMPLOYEE IS A SUPERVISOR OR
MANAGEMENT OFFICIAL FOR PURPOSES OF COVERAGE UNDER THE "MERIT PAY"
PROVISIONS OF THE CIVIL SERVICE REFORM ACT OF 1978, THAT DETERMINATION
HAS NO IMPACT ON SUCH EMPLOYEE'S INCLUSION IN OR EXCLUSION FROM A UNIT
OF EXCLUSIVE RECOGNITION UNDER SECTION 7112 OF THE STATUTE.
BACKGROUND
THE CIVIL SERVICE REFORM ACT OF 1978 EFFECTED SEVERAL MAJOR CHANGES
IN THE SYSTEM OF FEDERAL PERSONNEL MANAGEMENT.
AMONG THESE CHANGES WERE THE ESTABLISHMENT OF A STATUTORY
LABOR-MANAGEMENT RELATIONS PROGRAM UNDER TITLE VII AND THE INTRODUCTION
OF A PROGRAM FOR MERIT PAY UNDER TITLE V.
1. TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978-- FEDERAL
SERVICE LABOR-MANAGEMENT
RELATIONS
THE ENACTMENT OF TITLE VII, THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, WAS A
RECOGNITION OF THE RIGHT OF FEDERAL EMPLOYEES TO ORGANIZE, BARGAIN
COLLECTIVELY, AND
PARTICIPATE THROUGH LABOR ORGANIZATIONS IN DECISIONS WHICH AFFECT
THEM. /2/ IN SO
RECOGNIZING, CONGRESS SPECIFICALLY FOUND THAT LABOR ORGANIZATIONS AND
COLLECTIVE BARGAINING IN
THE CIVIL SERVICE ARE IN THE PUBLIC INTEREST. /3/
TITLE VII PRESCRIBES, INTER ALIA, THE COMPOSITION, ORGANIZATION, AND
RESPONSIBILITIES OF
THE FEDERAL LABOR RELATIONS AUTHORITY. THE AUTHORITY'S POWERS AND
DUTIES ARE SET FORTH IN
SECTION 7105 OF THE STATUTE. IN SECTION 7105(A)(1) THE AUTHORITY IS
GIVEN THE GENERAL
RESPONSIBILITY FOR PROVIDING "LEADERSHIP IN ESTABLISHING POLICIES AND
GUIDANCE RELATING TO
MATTERS UNDER THIS CHAPTER," AND, EXCEPT AS OTHERWISE PROVIDED, "FOR
CARRYING OUT THE PURPOSE
OF THIS CHAPTER." IN FURTHERANCE OF THIS GENERAL CHARGE, THE
AUTHORITY IS GIVEN THE POWER,
INTER ALIA, IN SECTION 7105(A)(2)(A), TO "DETERMINE THE
APPROPRIATENESS OF UNITS FOR LABOR
ORGANIZATION REPRESENTATION UNDER SECTION 7112 OF THIS TITLE(.)" THE
AUTHORITY, AMONG ITS
OTHER RESPONSIBILITIES, IS ALSO EMPOWERED BY SECTION 7105(A)(2)(G) TO
"CONDUCT HEARINGS AND
RESOLVE COMPLAINTS OF UNFAIR LABOR PRACTICES UNDER SECTION 7118 OF
THIS TITLE(.)"
WITH REGARD TO THE AUTHORITY'S POWER TO DETERMINE APPROPRIATE
BARGAINING UNITS UNDER
SECTION 7105(A)(2)(A), SECTION 7112(B)(1) PROHIBITS FINDING A
PROPOSED UNIT TO BE APPROPRIATE,
"IF IT INCLUDES (EXCEPT IN CIRCUMSTANCES NOT RELEVANT HERE) ANY
MANAGEMENT OFFICIAL OR
SUPERVISOR(.)" THE TERMS "SUPERVISOR" AND "MANAGEMENT OFFICIAL" ARE
DEFINED RESPECTIVELY IN
SECTION 7103(A)(10) AND (11) OF THE STATUTE. /4/ THUS, IN THE
PROCESS OF DETERMINING THE
APPROPRIATENESS OF BARGAINING UNITS, THE AUTHORITY IS REQUIRED TO
INTERPRET AND APPLY THE
DEFINITIONS OF "SUPERVISOR" AND "MANAGEMENT OFFICIAL" IN THE STATUTE.
DECISIONS AS TO INTERPRETATION AND APPLICATION OF THE TERMS
"SUPERVISOR" AND "MANAGEMENT
OFFICIAL" HAVE EVEN WIDER IMPLICATIONS SINCE SECTION 7102 GUARANTEES
CERTAIN RIGHTS TO
"EMPLOYEES," BUT SECTION 7103(A)(2)(B)(III) EXPLICITLY EXCLUDES A
"SUPERVISOR" OR A
"MANAGEMENT OFFICIAL" FROM THE DEFINITION OF "EMPLOYEE" AND, AS A
CONSEQUENCE, FROM THE RIGHTS
GRANTED BY SECTION 7102. BY MEANS OF THE UNFAIR LABOR PRACTICE
PROCEDURES SET FORTH IN
SECTION 7118, THE AUTHORITY IS CHARGED WITH ASSURING THE RIGHTS
GRANTED TO EMPLOYEES AND LABOR
ORGANIZATIONS ARE NOT ABRIDGED.
2. TITLE V OF THE CIVIL SERVICE REFORM ACT OF 1978-- MERIT PAY
THE POLICY UNDERLYING THE ENACTMENT OF TITLE V IS THAT IN APPROPRIATE
INSTANCES, PAY
INCREASES SHOULD BE BASED ON QUALITY OF PERFORMANCE RATHER THAN
LENGTH OF
SERVICE. /5/ THEREFORE, TITLE V PROVIDES FOR A MERIT PAY SYSTEM TO
"RECOGNIZE AND REWARD
QUALITY PERFORMANCE BY VARYING PAY ADJUSTMENTS." /6/ ACCORDING TO
SECTION 5401(B)(1), TITLE
V IS APPLICABLE "TO ANY SUPERVISOR OR MANAGEMENT OFFICIAL (AS DEFINED
IN PARAGRAPHS (10) AND
(11) OF SECTION 7103 OF TITLE VII, /7/ RESPECTIVELY) WHO IS IN A
POSITION WHICH IS IN GS-13,
14, OR 15 OF THE GENERAL SCHEDULE . . . " SECTION 5402(A) OF TITLE V
PROVIDES THAT THE "OFFICE
OF PERSONNEL MANAGEMENT SHALL ESTABLISH A MERIT PAY SYSTEM WHICH
SHALL PROVIDE FOR A RANGE OF
BASIC PAY FOR EACH GRADE TO WHICH THE SYSTEM APPLIES . . . " SECTION
5405 OF TITLE V STATES
THAT THE "OFFICE OF PERSONNEL MANAGEMENT SHALL PRESCRIBE REGULATIONS
TO CARRY OUT THE PURPOSE
OF THIS CHAPTER." IN COMPLIANCE WITH THIS LATTER RESPONSIBILITY, THE
OFFICE OF PERSONNEL
MANAGEMENT HAS PUBLISHED REGULATIONS. /8/ SECTION 540.102(C) OF THE
REGULATIONS REQUIRES
THAT, "THE HEAD OF EACH AGENCY SHALL IDENTIFY EMPLOYEES WHO ARE
SUPERVISORS OR MANAGEMENT
OFFICIALS FOR PURPOSES OF COVERAGE BY THE MERIT PAY SYSTEM." /9/
THUS, THE CONGRESS ASSIGNED TO THE OFFICE OF PERSONNEL MANAGEMENT
RESPONSIBILITY FOR THE
ESTABLISHMENT AND REGULATION OF THE MERIT PAY SYSTEM PRESCRIBED BY
TITLE V OF THE CIVIL
SERVICE REFORM ACT. IN FURTHERANCE OF THAT RESPONSIBILITY, THE
OFFICE OF PERSONNEL MANAGEMENT
HAS CHARGED AGENCY HEADS WITH THE AUTHORITY TO DETERMINE WHICH
EMPLOYEES MEET THE CRITERIA FOR
COVERAGE BY THE MERIT PAY SYSTEM, I.E., WHICH EMPLOYEES ARE
"SUPERVISORS" OR "MANAGEMENT
OFFICIALS" FOR MERIT PAY PURPOSES. THIS DETERMINATION IS MADE BY
REFERENCE TO THE DEFINITION
OF "SUPERVISOR" AND "MANAGEMENT OFFICIAL" CONTAINED IN TITLE VII.
DISCUSSION
WHILE PROCEDURES ARE AVAILABLE TO ASCERTAIN EMPLOYEE RIGHTS UNDER
TITLE VII, IT IS A FUNDAMENTAL PURPOSE OF THAT TITLE TO AFFORD BOTH
LABOR ORGANIZATIONS AND AGENCIES AN OPPORTUNITY TO WORK OUT THEIR
DIFFERENCES ARISING UNDER TITLE VII TO THE MAXIMUM EXTENT POSSIBLE
WITHOUT RESORT TO THE PROCESSES OF THE AUTHORITY, AND THEY ARE
ENCOURAGED TO DO THIS. THE INSTANT REQUEST FOR A MAJOR POLICY
DETERMINATION AROSE FROM AN ALLEGED MANAGEMENT PRACTICE OF REMOVING
EMPLOYEES FROM BARGAINING UNITS PURSUANT TO MERIT PAY DETERMINATIONS.
FROM THE PLAIN LANGUAGE OF THE PROVISIONS OF TITLE VII AS SUMMARIZED
ABOVE, IT IS CLEAR CONGRESS ASSIGNED FINAL RESPONSIBILITY TO THE FEDERAL
LABOR RELATIONS AUTHORITY FOR DETERMINATIONS AS TO WHETHER AN INDIVIDUAL
IS, FOR PURPOSES OF TITLE VII, A SUPERVISOR OR MANAGEMENT OFFICIAL, AND,
THEREFORE, WHETHER SUCH AN INDIVIDUAL SHOULD OR SHOULD NOT BE INCLUDED
IN A UNIT OF EXCLUSIVE RECOGNITION. THERE IS NO INDICATION OF ANY KIND
IN THE LEGISLATIVE HISTORY OF TITLE VII THAT CONGRESS INTENDED
OTHERWISE. THUS, AN AGENCY WOULD ACT AT ITS OWN PERIL IN REMOVING AN
EMPLOYEE FROM AN ESTABLISHED BARGAINING UNIT SIMPLY BECAUSE OF A
DETERMINATION THAT SUCH EMPLOYEE IS A SUPERVISOR OR MANAGEMENT OFFICIAL
FOR MERIT PAY PURPOSES. IF THERE IS A MOVE CONTEMPLATED TO REMOVE AN
EMPLOYEE FROM AN ESTABLISHED BARGAINING UNIT SIMPLY BECAUSE OF A MERIT
PAY DETERMINATION, THERE ARE PROCEDURES AVAILABLE UNDER TITLE VII TO
RESOLVE QUESTIONS RELATED TO THE REMOVAL.
IT MUST BE NOTED THAT THERE IS NO PROVISION IN THE CIVIL SERVICE
REFORM ACT NOR ANY INDICATION IN ITS LEGISLATIVE HISTORY THAT ANY
RESPONSIBILITY HAS BEEN ASSIGNED TO THE FEDERAL LABOR RELATIONS
AUTHORITY FOR THE DETERMINATION OF WHETHER AN INDIVIDUAL IS A SUPERVISOR
OR MANAGEMENT OFFICIAL FOR PURPOSES OF THE MERIT PAY SYSTEM UNDER TITLE
V (OTHER THAN WITHIN THE AUTHORITY ITSELF). RATHER, IT IS EVIDENT THAT
THE AUTHORITY IS WITHOUT SUCH JURISDICTION SINCE THE MERIT PAY
PROVISIONS OF TITLE V MUST BE IMPLEMENTED BY AGENCIES RELYING UPON THE
DEFINITIONS CONTAINED IN TITLE VII, REGARDLESS OF WHETHER OR NOT A
COLLECTIVE BARGAINING UNIT HAS BEEN ESTABLISHED. SUCH PROVISIONS APPLY
NOT ONLY TO SUPERVISORS AND MANAGERS AS DEFINED IN TITLE VII, BUT ALSO
TO INDIVIDUALS WHO ARE NOT INCLUDED IN COLLECTIVE BARGAINING UNITS, AS
WELL AS INDIVIDUALS EXCLUDED FROM THE COVERAGE OF TITLE VII.
DETERMINATIONS AS TO AN INDIVIDUAL'S SUPERVISORY OR MANAGEMENT STATUS
MADE UNDER TITLES V AND VII OF THE CIVIL SERVICE REFORM ACT ARE RELATED
TO THE EXTENT THAT THOSE WHO ADMINISTER THE RESPECTIVE SEPARATE TITLES
UTILIZE THE SAME DEFINITIONS OF SUPERVISOR AND MANAGEMENT OFFICIAL.
HOWEVER, DETERMINATIONS UNDER TITLE V OF STATUS AS A SUPERVISOR OR
MANAGEMENT OFFICIAL FOR MERIT PAY PURPOSES DOES NOT CONFER SUPERVISORY
OR MANAGERIAL STATUS UNDER TITLE VII. SINCE IT IS NOT WITHIN THE
JURISDICTION OF THE AUTHORITY TO DETERMINE WHETHER AN INDIVIDUAL IS A
SUPERVISOR OR MANAGEMENT OFFICIAL FOR MERIT PAY PURPOSES UNDER TITLE V,
IT FOLLOWS THAT IT IS OUTSIDE THE JURISDICTION OF THE AUTHORITY TO
DIRECT AGENCIES TO FOLLOW THE BINDING DETERMINATIONS OF THE AUTHORITY AS
TO WHETHER AN INDIVIDUAL IS A SUPERVISOR OR MANAGEMENT OFFICIAL UNDER
TITLE VII WHEN AGENCIES ARE IMPLEMENTING THE MERIT PAY PROVISIONS OF
TITLE V.
IN SUMMARY, IT IS WITHIN THE JURISDICTION OF THE AUTHORITY TO MAKE
FINAL DETERMINATIONS UNDER APPROPRIATE REPRESENTATION OR UNFAIR LABOR
PRACTICE CASE PROCEDURES AS TO WHETHER AN INDIVIDUAL IS A SUPERVISOR OR
MANAGEMENT OFFICIAL FOR THE PURPOSES OF TITLE VII OF THE CIVIL SERVICE
REFORM ACT. IT IS NOT WITHIN THE JURISDICTION OF THE AUTHORITY TO MAKE
DETERMINATIONS AS TO WHETHER AN INDIVIDUAL IS A SUPERVISOR OR MANAGEMENT
OFFICIAL FOR THE PURPOSES OF TITLE V OF THE CIVIL SERVICE REFORM ACT.
CONVERSELY, WHEN AN AGENCY DETERMINES THAT AN EMPLOYEE IS A SUPERVISOR
OR MANAGEMENT OFFICIAL FOR PURPOSES OF COVERAGE UNDER THE "MERIT PAY"
PROVISIONS OF TITLE V OF THE CIVIL SERVICE REFORM ACT OF 1978, THAT
DETERMINATION HAS NO IMPACT ON WHETHER SUCH EMPLOYEE IS OR IS NOT A
SUPERVISOR OR MANAGEMENT OFFICIAL FOR PURPOSES OF TITLE VII. THUS, WHEN
AN AGENCY DETERMINES THAT AN EMPLOYEE IS A SUPERVISOR OR MANAGEMENT
OFFICIAL FOR PURPOSES OF COVERAGE UNDER THE "MERIT PAY" PROVISIONS OF
THE CIVIL SERVICE REFORM ACT OF 1978, THAT DETERMINATION HAS NO IMPACT
ON SUCH EMPLOYEE'S INCLUSION IN OR EXCLUSION FROM A UNIT OF EXCLUSIVE
RECOGNITION UNDER SECTION 7112 OF THE STATUTE.
ISSUED, WASHINGTON, D.C., DECEMBER 16, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ FEDERAL LABOR RELATIONS AUTHORITY, NOTICE RELATING TO INCLUSION
OF EMPLOYEES IN UNITS AND COVERAGE OF MERIT PAY PROVISIONS, 45 FED.REG.
24,231 (APRIL 9, 1980). THIS NOTICE WAS ISSUED IN RESPONSE TO A REQUEST
FOR A MAJOR POLICY DETERMINATION SUBMITTED BY THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES.
/2/ 5 U.S.C. 7101(A)(1) (SUPP. II 1978).
/3/ 5 U.S.C. 7101(A) (SUPP. II 1978).
/4/ SECTION 7103 PROVIDES IN PERTINENT PART:
(A) FOR THE PURPOSE OF THIS CHAPTER--
. . . .
(10) 'SUPERVISOR' MEANS AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING
AUTHORITY IN THE
INTEREST OF THE AGENCY TO HIRE, DIRECT, ASSIGN, PROMOTE, REWARD,
TRANSFER, FURLOUGH, LAYOFF,
RECALL, SUSPEND, DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR
GRIEVANCES, OR TO
EFFECTIVELY RECOMMEND SUCH ACTION, IF THE EXERCISE OF THE AUTHORITY
IS NOT MERELY ROUTINE OR
CLERICAL IN NATURE BUT REQUIRES THE CONSISTENT EXERCISE OF
INDEPENDENT JUDGMENT EXCEPT THAT,
WITH RESPECT TO ANY UNIT WHICH INCLUDES FIREFIGHTERS OR NURSES, THE
TERM 'SUPERVISOR' INCLUDES
ONLY THOSE INDIVIDUALS WHO DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT
TIME TO EXERCISING SUCH
AUTHORITY;
(11) 'MANAGEMENT OFFICIAL' MEANS AN INDIVIDUAL EMPLOYED BY AN AGENCY
IN A POSITION THE
DUTIES AND RESPONSIBILITIES OF WHICH REQUIRE OR AUTHORIZE THE
INDIVIDUAL TO FORMULATE,
DETERMINE, OR INFLUENCE THE POLICIES OF THE AGENCY(.)
/5/ SEE CIVIL SERVICE REFORM ACT OF 1978, FINDINGS AND STATEMENT OF
PURPOSE, SEC. 3(7). 5 U.S.C. 1101 NOTE (SUPP. II 1978).
/6/ 5 U.S.C. 5401(A)(1)(A) (SUPP. II 1978).
/7/ NOTE 4, SUPRA.
/8/ 44 FED.REG. 52,161 (1919), CODIFIED AT 5 C.F.R. PART 540 (1980).
/9/ 5 C.F.R. 540.102(C) (1980).