[ v07 p172 ]
07:0172(24)CU
The decision of the Authority follows:
7 FLRA No. 24
DEPARTMENT OF THE NAVY,
AUTOMATIC DATA PROCESSING
SELECTION OFFICE
Activity/Petitioner
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1, AFL-CIO
Labor Organization
Case No. 3-CU-49
DECISION AND ORDER ON PETITION FOR CLARIFICATION OF UNIT
AS A RESULT OF A PETITION DULY FILED UNDER SECTION 7111(B)(2) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C., SECTIONS
7105-7135 (THE STATUTE), AND SECTION 2422.2(C) OF THE AUTHORITY'S RULES
AND REGULATIONS (5 CFR 2422.2(C)(1981)), A HEARING WAS HELD BEFORE A
HEARING OFFICER OF THE AUTHORITY. THE AUTHORITY HAS REVIEWED THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING AND FINDS THAT THEY ARE
FREE FROM PREJUDICIAL ERROR. THE RULINGS ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
PARTIES, THE AUTHORITY FINDS: ON FEBRUARY 14, 1979, THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1, AFL-CIO WAS CERTIFIED AS
THE EXCLUSIVE BARGAINING REPRESENTATIVE OF A UNIT OF APPROXIMATELY 33
EMPLOYEES COMPRISED OF "ALL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES
OF
THE AUTOMATIC DATA PROCESSING ; SELECTION OFFICE, U.S. NAVY,
WASHINGTON, D.C.," EXCLUDING "ALL SUPERVISORS, MANAGEMENT OFFICIALS,
PROFESSIONAL EMPLOYEES AND EMPLOYEES ENGAGED IN PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY."
IN OCTOBER 1979, THE ACTIVITY DETERMINED THAT APPROXIMATELY 15
POSITIONS IN THAT UNIT MET THE DEFINITION OF MANAGEMENT OFFICIAL FOR
PURPOSES OF THE MERIT PAY PROVISIONS OF TITLE V OF THE CIVIL SERVICE
REFORM ACT OF 1978, (5 U.S.C. 5401-5405). SUBSEQUENTLY, THE ACTIVITY
FILED THE INSTANT UNIT CLARIFICATION PETITION SEEKING TO EXCLUDE THOSE
SAME POSITIONS FROM THE BARGAINING UNIT FOR PURPOSES OF THE STATUTE.
SECTION 7103(A)(11) OF THE STATUTE DEFINES A MANAGEMENT OFFICIAL AS
"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(.)"
SECTION 7112(B)(1) OF THE STATUTE MANDATES THAT SUCH MANAGEMENT
OFFICIALS BE EXCLUDED FROM UNITS OF EXCLUSIVE RECOGNITION. /1/ IN THE
INSTANT CASE, THE AUTHORITY IS CALLED UPON FIRST TO INTERPRET AND THEN
TO APPLY THE DEFINITION OF MANAGEMENT OFFICIAL TO THE POSITIONS IN
DISPUTE.
AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THIS PROVISION FAILS TO
REVEAL ANY SPECIFIC CONGRESSIONAL INTENT AS TO THE MEANING TO BE GIVEN
THE WORDS AND PHRASES USED IN THE DEFINITION. THE EARLIEST FORERUNNER
OF THE DEFINITION OF MANAGEMENT OFFICIAL CONTAINED IN THE STATUTE
APPEARS IN H.R. 13, INTRODUCED BY CONGRESSMAN CLAY ON JANUARY 4, 1977.
THIS DEFINITION DESIGNATED AS A MANAGEMENT OFFICIAL AN INDIVIDUAL WHO
"FORMULATES, DETERMINES, EFFECTIVELY INFLUENCES, OR EFFECTUATES POLICIES
OF AN AGENCY, OR WHO, IN THE PERFORMANCE OF HIS DUTIES, HAS DISCRETION
TO MODIFY THE ESTABLISHED POLICIES OF AN AGENCY." /2/ THE SCOPE OF THIS
DEFINITION WAS NEVER MORE FULLY ELABORATED.
ON SEPTEMBER 14, 1977, CONGRESSMEN CLAY AND FORD JOINED TOGETHER IN
INTRODUCING H.R. 9094, WHICH CHANGED THE PROPOSED DEFINITION OF
MANAGEMENT OFFICIAL BY STATING MANAGEMENT OFFICIAL "MEANS AN INDIVIDUAL
WHO FORMULATES, DETERMINES, OR INFLUENCES, OR EFFECTUATES POLICIES OF AN
AGENCY." /3/ THUS, THIS DEFINITION, ALSO INTRODUCED WITHOUT ANY
ELABORATION, EXCLUDED FROM THE DESIGNATION OF MANAGEMENT OFFICIAL A
CATEGORY OF INDIVIDUALS THAT HAD BEEN INCLUDED IN THE DEFINITION IN H.R.
13, NAMELY THE INDIVIDUAL "WHO, IN THE PERFORMANCE OF HIS DUTIES, HAS
DISCRETION TO MODIFY THE ESTABLISHED POLICIES OF AN AGENCY." MOREOVER,
THE DEFINITION OMITTED "EFFECTIVELY" AS A MODIFIER OF "INFLUENCES." THIS
OMISSION IS NOT EXPLAINED IN THE LEGISLATIVE HISTORY. THE AUTHORITY
DOES NOT IMPUTE SIGNIFICANCE TO THIS DELETION. IN THIS REGARD, THE
AUTHORITY IS OF THE OPINION, BASED ON COMMON MEANINGS OF THE TERMS, THAT
"TO INFLUENCE" IS SYNONYMOUS WITH "TO EFFECTIVELY INFLUENCE." SEE PAGE
4, INFRA.
THE NEXT VERSION OF THE FORERUNNER OF THE STATUTE'S DEFINITION OF
MANAGEMENT OFFICIAL APPEARED IN THE HOUSE POST OFFICE AND CIVIL SERVICE
COMMITTEE PRINT OF H.R. 11280 OF JULY 10, 1978, WHICH WAS USED FOR
MARKUP. AGAIN WITHOUT ELABORATION, THIS BILL AS REPORTED OUT OF
COMMITTEE CHANGED THE DEFINITION OF MANAGEMENT OFFICIAL BY OMITTING FROM
ITS APPLICATION THOSE WHO "EFFECTUATE" AGENCY POLICIES. REMAINING AS
MANAGEMENT OFFICIALS WERE THOSE "EMPLOYED BY AN AGENCY IN A POSITION THE
DUTIES AND RESPONSIBILITIES OF WHICH REQUIRE OR AUTHORIZE SUCH
INDIVIDUAL TO FORMULATE, DETERMINE, OR INFLUENCE THE POLICIES OF SUCH
AGENCY." THIS DEFINITION, WITH INSIGNIFICANT CHANGES, BECAME THE
DEFINITION USED IN THE STATUTE. /4/
WHILE THE LEGISLATIVE HISTORY DOES NOT REVEAL A PRECISE MEANING FOR
EACH OF THE WORDS AND PHRASES USED IN THE DEFINITION, THE LEGISLATIVE
INTENT IN EXCLUDING MANAGEMENT OFFICIALS FROM UNITS OF EXCLUSIVE
RECOGNITION IS TO SOME EXTENT CLARIFIED. THE COMMITTEE REPORT
ACCOMPANYING H.R. 11280 STATED A MANAGEMENT OFFICIAL "IS GENERALLY A
REPRESENTATIVE OF THE AGENCY IN THE COLLECTIVE BARGAINING RELATIONSHIP."
/5/ THE AUTHORITY INTERPRETS THIS STATEMENT AS INDICATING A GENERAL
CONGRESSIONAL INTENT THAT A MANAGEMENT OFFICIAL IS AN INDIVIDUAL WHO IS
IDENTIFIED WITH MANAGEMENT AND WHO, BY VIRTUE OF HIS OR HER STATURE AND
LEVEL OF RESPONSIBILITY WITHIN THE AGENCY, MUST HAVE THE INTERESTS OF
AGENCY MANAGEMENT AS HIS OR HER PRIMARY CONCERN IN THE CONTEXT OF A
COLLECTIVE BARGAINING RELATIONSHIP. THE AUTHORITY DOES NOT ATTRIBUTE TO
CONGRESS AS INTENT THAT ONLY THOSE INDIVIDUALS WHO ACTUALLY SERVE AS
REPRESENTATIVES OF THE AGENCY IN DEALINGS WITH AN EXCLUSIVE BARGAINING
REPRESENTATIVE ARE MANAGEMENT OFFICIALS. SUCH AN UNDERSTANDING IS
EVIDENCED BY CONGRESSMAN CLAY'S REMARKS, IN INTRODUCING H.R. 13, WHEN HE
STATED THE BILL EXCLUDES MANAGERS WHEN THEIR PARTICIPATION IN A LABOR
ORGANIZATION "WOULD RESULT IN AN APPARENT CONFLICT OF INTEREST." /6/
BEARING IN MIND THE INTENT REFLECTED IN THE LEGISLATIVE HISTORY TO
EXCLUDE FROM UNITS OF EXCLUSIVE RECOGNITION OFFICIALS WHO ARE IDENTIFIED
WITH MANAGEMENT AND WHOSE INCLUSION WOULD RESULT IN AN APPARENT CONFLICT
OF INTEREST, THE AUTHORITY IS OF THE OPINION THAT THE CRITICAL TERMS IN
SECTION 7103(A)(11) HAVE THE FOLLOWING MEANINGS: "FORMULATE" MEANS TO
CREATE, TO ESTABLISH OR TO PRESCRIBE "DETERMINE" MEANS TO DECIDE UPON OR
TO SETTLE UPON; "INFLUENCE" MEANS TO BRING ABOUT OR TO OBTAIN A RESULT;
AND "POLICIES" ARE GENERAL PRINCIPLES, PLANS OR COURSES OF ACTION.
THESE CONCLUSIONS AS TO THE MEANINGS OF THE CRITICAL TERMS CONTAINED
IN THE STATUTORY DEFINITION OF MANAGEMENT OFFICIAL RECOGNIZE THE
PURPOSES REFLECTED IN THE BALANCE BETWEEN THE REQUIREMENT OF AN
EFFECTIVE AND EFFICIENT GOVERNMENT /7/ AND THE RIGHTS AFFORDED TO
EMPLOYEES UNDER THE STATUTE. IN THE LATTER REGARD, THE STATUTE
GUARANTEES THE RIGHT OF EMPLOYEES TO ORGANIZE, BARGAIN COLLECTIVELY, AND
PARTICIPATE THROUGH LABOR ORGANIZATIONS OF THEIR OWN CHOOSING IN
DECISIONS WHICH AFFECT THEM. /8/ SECTION 7102 OF THE STATUTE /9/
PROTECTS EMPLOYEES /10/ IN THE EXERCISE OF THE RIGHT TO FORM, JOIN, OR
ASSIST ANY LABOR ORGANIZATION OR TO REFRAIN FROM SUCH ACTIVITY.
THUS, WE CONCLUDE FOR THE REASONS SET FORTH ABOVE THAT THE DEFINITION
OF MANAGEMENT OFFICIAL IN SECTION 7103(A)(11) OF THE STATUTE INCLUDES
THOSE INDIVIDUALS WHO: (1) CREATE, ESTABLISH OR PRESCRIBE GENERAL
PRINCIPLES, PLANS OR COURSES OF ACTION FOR AN AGENCY; (2) DECIDE UPON
OR SETTLE UPON GENERAL PRINCIPLES, PLANS OR COURSES OF ACTION FOR AN
AGENCY; OR (3) BRING ABOUT OR OBTAIN A RESULT AS TO THE ADOPTION OF
GENERAL PRINCIPLES, PLANS OR COURSES OF ACTION FOR AN AGENCY. WE
FURTHER CONCLUDE THAT THIS INTERPRETATION OF THE DEFINITION IS FULLY
CONSISTENT WITH CONGRESSIONAL INTENT AS REFLECTED IN THE LEGISLATIVE
HISTORY OF THE STATUTE AND THAT SUCH AN INTERPRETATION BEST EFFECTUATES
THE PURPOSES OF THE STATUTE.
THE AUTHORITY WILL NOW APPLY THE DEFINITION OF MANAGEMENT OFFICIAL TO
THE FACTS OF THE INSTANT CASE. THE ACTIVITY INVOLVED IS THE PROCUREMENT
OFFICE FOR AUTOMATIC DATA PROCESSING EQUIPMENT AND SERVICES THROUGHOUT
THE DEPARTMENT OF THE NAVY (INCLUDING THE MARINES). THE ACTIVITY IS NOT
INVOLVED IN DECIDING WHEN OR WHERE THE NAVY NEEDS SUCH EQUIPMENT, OR
WHAT THE SPECIFICATIONS SHOULD BE FOR NECESSARY EQUIPMENT. THOSE
DECISIONS ARE INITIALLY MADE BY THE NAVAL INSTALLATION WHICH WILL
PURCHASE AND USE THE EQUIPMENT, AND ARE APPROVED BY SUCH AUTHORITIES AS
THE NAVAL DATA AUTOMATION COMMAND, THE SECRETARY OF THE NAVY, AND THE
GENERAL SERVICES ADMINISTRATION. IT IS ONLY AFTER SUCH APPROVAL THAT
THE ACTIVITY GETS INVOLVED IN THE PROCUREMENT PROCESS. THIS INVOLVEMENT
IS IN THE AREA OF RECOMMENDING WHAT TYPE OF CONTRACT TO USE, FORMULATING
IN A SOLICITATION DOCUMENT THE EQUIPMENT SPECIFICATIONS WHICH WILL GO TO
INDUSTRY TO INDUCE BIDS, EVALUATING WHETHER THE BIDDERS WHO RESPOND TO
THE SOLICITATION SATISFY THE EQUIPMENT SPECIFICATIONS, NEGOTIATING THE
FINAL TERMS OF A CONTRACT WITH THE APPROVED BIDDER, AND ADMINISTERING
ANY CONTRACT THAT IS ULTIMATELY AWARDED.
THE ACTIVITY IS HEADED BY A DIRECTOR AND A DEPUTY DIRECTOR. THE
ORGANIZATION IS THEN BROKEN DOWN INTO FOUR DIVISIONS: THE CONTRACTING
DIVISION, THE SPECIAL ACQUISITIONS DIVISION, THE COMPETITIVE
SOLICITATIONS DIVISION, AND THE CONTRACT SERVICES SOLICITATIONS
DIVISION. TWO OF THE DIVISIONS ARE HEADED BY GS-15 S, THE OTHER TWO BY
GS-14S. THE DIVISIONS WHICH ARE HEADED BY GS-15S ARE IN TURN
SUBDIVIDED, WITH EACH SUBDIVISION HEADED BY A GS-14 SUPERVISOR WITH
GS-14S AND GS-13S DIRECTLY UNDER HIM.
THE ACTIVITY MAINTAINS THAT THE INCUMBENTS OF THE NONSUPERVISORY
GS-14 AND GS-13 POSITIONS ARE MANAGEMENT OFFICIALS WITHIN THE MEANING OF
THE STATUTE AND THUS MUST BE EXCLUDED FROM THE BARGAINING UNIT. THE
POSITIONS AT ISSUE FALL INTO TWO CATEGORIES: CONTRACT
NEGOTIATOR/SPECIALIST, GS-1102-13; AND COMPUTER EQUIPMENT
ANALYST/COMPUTER SPECIALIST, GS-334-13 AND GS-334-14.
CONTRACT NEGOTIATOR/SPECIALIST, GS-1102-13
THE FOUR POSITIONS IN THIS CATEGORY (INCLUDING TWO CURRENT VACANCIES)
/11/ ARE INTENDED TO INVOLVE INCUMBENTS IN THE NONTECHNICAL ASPECTS OF
PROCUREMENT AND ARE LOCATED EXCLUSIVELY IN THE TWO SUBDIVISIONS OR
BRANCHES OF THE CONTRACTING DIVISION. INCUMBENTS REPORT TO THEIR
RESPECTIVE BRANCH SUPERVISOR, WHO IN TURN IS SUBORDINATE TO THE DIVISION
HEAD. THE MAJORITY OF THEIR TIME IS SPENT WORKING WITH SOURCE SELECTION
EVALUATION BOARDS WHICH ARE CREATED TO PROCESS EACH REQUEST TO PROCURE
COMPUTERS OR COMPUTER SERVICES. THESE BOARDS ARE USUALLY COMPRISED OF
ONE CONTRACT NEGOTIATOR/SPECIALIST, ONE TO THREE COMPUTER EQUIPMENT
ANALYST/COMPUTER SPECIALISTS, AND SEVERAL REPRESENTATIVES FROM THE NAVAL
OR MARINE INSTALLATION FOR WHICH THE EQUIPMENT OR SERVICE IS BEING
PROCURED.
WITH INPUT FROM OTHER MEMBERS OF A BOARD, THE CONTRACT
NEGOTIATOR/SPECIALIST TAKES PRIMARY RESPONSIBILITY FOR DRAFTING CERTAIN
"CLEARANCES." THE FIRST, I.E., "TYPE OF CONTRACT CLEARANCE," PROPOSES
THE TYPE OF CONTRACT THAT SHOULD BE MADE. THIS HINGES ON THE AMOUNT OF
MONEY THE INSTALLATION USING THE EQUIPMENT CAN ALLOCATE, AS WELL AS WHEN
THE MONEY WILL BE AVAILABLE. THE SECOND, I.E., "PRE-NEGOTIATION
CLEARANCE," IS DRAFTED AFTER INDUSTRY RESPONDS TO THE SOLICITATION FOR
BIDS. THIS TYPE OF CLEARANCE IS DRAFTED TO OUTLINE THE POSITION OF EACH
COMPANY THAT RESPONDS AS WELL AS THE ACTIVITY'S PROPOSED POSITION. THE
THIRD, I.E., "POST-NEGOTIATION CLEARANCE," IS DRAFTED AFTER NEGOTIATIONS
ARE COMPLETED AND IT OUTLINES WHETHER THE ACTIVITY'S NEGOTIATING GOALS
WERE MET AND, IF NOT, WHY NOT.
AFTER PREPARATION BY THE CONTRACT NEGOTIATOR/SPECIALIST, EACH TYPE OF
CLEARANCE IS SUBMITTED TO THE APPROPRIATE SUPERVISOR WHO IS ONE OF THE
TWO BRANCH CHIEFS IN THE CONTRACTING DIVISION. IT IS THEN FURTHER
REVIEWED BY THE CLEARANCE REVIEW BOARD, WHICH CONSISTS OF THE ACTIVITY'S
DEPUTY DIRECTOR, THE HEADS OF THE CONTRACTING DIVISION AND THE
COMPETITIVE SOLICITATIONS DIVISION, AND THE CONTRACT
NEGOTIATOR/SPECIALIST'S SUPERVISOR. IT IS THEN SUBMITTED TO THE CHIEF
OF NAVAL MATERIAL FOR FINAL APPROVAL.
CONTRACT NEGOTIATOR/SPECIALISTS ALSO PARTICIPATE IN THE PREPARATION
OF THE SOLICITATION DOCUMENT WHICH IS SENT TO INDUSTRY TO INDUCE BIDS.
HERE, THOSE INDIVIDUALS ARE RESPONSIBLE FOR ENSURING THAT THE DOCUMENT
CONTAINS THE NECESSARY CLAUSES AND GENERAL PROVISIONS. THIS PORTION OF
THE DOCUMENT IS THEN REVIEWED BY THE CONTRACT NEGOTIATOR/SPECIALIST'S
SUPERVISOR, THE HEAD OF THE CONTRACTING DIVISION, AND THE ACTIVITY'S
LEGAL STAFF. IN TURN, THIS ASPECT OF THE SOLICITATION DOCUMENT IS AGAIN
REVIEWED DURING THE SEPARATE APPROVAL PROCESS FOR THE DOCUMENT IN ITS
ENTIRETY. AFTER EACH MEMBER OF A SOURCE SELECTION EVALUATION BOARD
SIGNS OFF ON THE DOCUMENT, A SOURCE SELECTION ADVISORY COUNCIL REVIEWS
THE DOCUMENT FOR APPROVAL. THE COUNCIL INCLUDES THE ACTIVITY'S
DIRECTOR, DEPUTY, HEAD OF THE CONTRACTING DIVISION, AND THE APPROPRIATE
CONTRACTING DIVISION BRANCH CHIEF, LEGAL COUNSEL, AND A REPRESENTATIVE
FROM THE NAVAL DATA AUTOMATION COMMAND.
CONTRACTS ARE NOT SIGNED BY CONTRACT NEGOTIATOR/SPECIALISTS.
INSTEAD, THEY ARE USUALLY SIGNED BY A BRANCH CHIEF IN THE CONTRACTING
DIVISION AFTER THE RESPECTIVE APPROVALS OF THE SOURCE SELECTION ADVISORY
COUNCIL AND THE ASSISTANT SECRETARY OF THE NAVY OR FINANCIAL MANAGEMENT.
HOWEVER, CONTRACT NEGOTIATOR/SPECIALISTS SPEND A SIGNIFICANT PORTION OF
THEIR TIME ADMINISTRATING CONTRACTS THAT HAVE ALREADY BEEN AWARDED.
THIS REQUIRES ISSUING DELIVERY ORDERS AND, FROM TIME TO TIME,
SUPPLEMENTAL AGREEMENTS OR ADMINISTRATIVE MODIFICATIONS MUST BE
NEGOTIATED. IN SUCH CASES, THE CONTRACT NEGOTIATOR/SPECIALIST PREPARES
THE NECESSARY PAPERWORK AFTER CONSULTING WITH THE APPROPRIATE
CONTRACTING DIVISION BRANCH CHIEF, THE LEGAL STAFF, OR OTHER APPROPRIATE
INDIVIDUALS; HOWEVER, THE FINAL PRODUCT WILL GO OUT ONLY AFTER APPROVAL
OF, AND UNDER THE SIGNATURE OF, THE BRANCH CHIEF. THE CONTRACT
NEGOTIATOR/SPECIALIST DOES HAVE LIMITED AUTHORITY TO COMMIT THE ACTIVITY
TO SUCH TRANSACTIONS, BUT EVEN THIS MORE LIMITED AUTHORITY IS ONLY
EXERCISED WHEN A GS-12 CONTRACT ADMINISTRATOR HAS DONE THE NECESSARY
RESEARCH AND PAPERWORK.
COMPUTER EQUIPMENT ANALYST/COMPUTER SPECIALIST, GS-334-13 AND
GS-334-14
THE APPROXIMATELY 11 POSITIONS IN THIS CATEGORY ARE INVOLVED IN THE
TECHNICAL ASPECTS OF PROCUREMENT AND ARE LOCATED IN THE ACTIVITY'S
REMAINING THREE DIVISIONS. MORE SPECIFICALLY, THE INCUMBENTS IN THE
SPECIAL ACQUISITIONS DIVISION ARE INVOLVED IN THE PROCUREMENT OF
COMPUTER EQUIPMENT WHEN AN INSTALLATION HAS SPECIFIED A PARTICULAR BRAND
NAME OF COMPUTER; THEY REPORT TO A GS-14 DIVISION HEAD. THE INCUMBENTS
IN THE COMPETITIVE SOLICITATIONS DIVISION ARE INVOLVED IN THE
PROCUREMENT OF COMPUTER EQUIPMENT WHEN AN INSTALLATION HAS SET FORTH
ONLY TECHNICAL SPECIFICATIONS WHICH THE PROCURED EQUIPMENT MUST MEET;
THEY REPORT TO ONE OF TWO GS-14 SUPERVISORS, WHO IN TURN REPORT TO THE
GS-15 DIVISION HEAD. THE INCUMBENTS IN THE CONTRACT SERVICES
SOLICITATIONS DIVISION ARE INVOLVED IN THE PROCUREMENT OF COMPUTER
EQUIPMENT SERVICES; THEY REPORT TO A GS-14 DIVISION HEAD.
COMPUTER EQUIPMENT ANALYST/COMPUTER SPECIALISTS SPEND NEARLY ALL OF
THEIR TIME WORKING AS A PART OF THE VARIOUS SOURCE SELECTION EVALUATION
BOARDS. IN THIS CONNECTION, THEY ARE PRIMARILY RESPONSIBLE FOR
DEVELOPING THE TECHNICAL SPECIFICATIONS THAT ARE CONTAINED IN THE
SOLICITATION DOCUMENT; EVALUATING THE BIDS RECEIVED TO SEE THAT THEY
MEET THOSE TECHNICAL SPECIFICATIONS BY, IN PART, DEVELOPING PROGRAMS OR
"BENCHMARKS" TO TEST THE VARIOUS EQUIPMENT; AND, FINALLY, FORMULATING
THE TECHNICAL LANGUAGE THAT IS CONTAINED IN THE PROCUREMENT CONTRACT.
BEFORE A SOLICITATION DOCUMENT IS ADVERTISED AND BEFORE A CONTRACT IS
AWARDED, THE CONTENTS ARE REVIEWED BY THE SOURCE SELECTION ADVISORY
COUNCIL. THE REPORT BY A SOURCE SELECTION EVALUATION BOARD IS MADE TO
THE SOURCE SELECTION ADVISORY COUNCIL IMMEDIATELY PRIOR TO THE CONTRACT
AWARD AND MERELY DETAILS HOW THE VARIOUS BIDDERS ADDRESSED THE TECHNICAL
REQUIREMENTS FOR THE EQUIPMENT AND LISTS THE BID PRICES. THIS REPORT
CONTAINS NO RECOMMENDATION FOR PURCHASE.
AS MENTIONED EARLIER, ONE TO THREE INDIVIDUALS IN THESE POSITIONS MAY
BE ASSIGNED TO ONE OF THE NUMEROUS SOURCE SELECTION EVALUATION BOARDS.
THE GS-14S IN THESE POSITIONS ARE USUALLY ASSIGNED TO THE MORE COMPLEX
PROJECTS. ONE OF THESE INDIVIDUALS ON A BOARD WILL BE ASSIGNED TO ACT
AS CHAIRMAN. THE PERSON PERFORMING THIS FUNCTION CARRIES NO MORE
AUTHORITY THAN THE OTHER MEMBERS, ALTHOUGH HE ACTS AS A COORDINATOR FOR
THE BOARD'S WORK; IN THIS REGARD, IT SHOULD BE NOTED THAT COMPUTER
EQUIPMENT ANALYST/COMPUTER SPECIALIST INCUMBENTS AT THE GS-334-12 LEVEL
ALSO HAVE SERVED AS A CHAIRMAN.
THE ABOVE FACTS, WHEN CONSIDERED IN THE LIGHT OF THE AUTHORITY'S
EARLIER DISCUSSION OF THE DEFINITION OF MANAGEMENT OFFICIAL, MAKE IT
CLEAR THAT NEITHER CONTRACT NEGOTIATOR/SPECIALISTS, GS-1102-13, NOR
COMPUTER EQUIPMENT ANALYST/COMPUTER SPECIALISTS, GS-334-13 AND
GS-334-14, IN ANY WAY FORMULATE, DETERMINE, OR INFLUENCE, ACCORDING TO
THE MEANING GIVEN THOSE TERMS BY THE AUTHORITY, THE POLICIES OF THE
AGENCY AND THUS CANNOT BE DEEMED MANAGEMENT OFFICIALS WITHIN THE MEANING
OF SECTION 7103(A)(11) OF THE STATUTE. IN THIS REGARD, THE CONTRACT
NEGOTIATOR/SPECIALISTS DRAFT "CLEARANCES" AND NONTECHNICAL LANGUAGE FOR
THE SOLICITATION DOCUMENT, AND SIGN FOR CERTAIN DELIVERY ORDERS AND
CONTRACT MODIFICATIONS. THE COMPUTER EQUIPMENT ANALYST/COMPUTER
SPECIALISTS PREPARE THE TECHNICAL LANGUAGE FOR BOTH THE SOLICITATION
DOCUMENT AND THE PROCUREMENT CONTRACT, AND ANALYZE WHETHER THE VARIOUS
BIDDERS HAVE MET THE TECHNICAL REQUIREMENTS FOR THE EQUIPMENT OR
SERVICES BEING PROCURED. THE WORK GENERATED BY THE INCUMBENTS IN BOTH
POSITIONS IS BUT AN INITIAL STEP IN THE PROCUREMENT PROCESS AND IS
SUBJECT TO EXTENSIVE HIGHER LEVEL REVIEW. EVEN IF THEIR WORK WERE
UNIFORMLY ADOPTED AS ORIGINALLY PROPOSED, IT IS NOT THE KIND OF WORK
WHICH CREATES, SETTLES, OR BRINGS ABOUT THE AGENCY'S GENERAL PRINCIPLES,
PLANS OR COURSES OF ACTION WHICH, IN THE CIRCUMSTANCES OF THIS CASE,
WOULD INCLUDE DECIDING WHETHER TO PROCURE COMPUTER EQUIPMENT/SERVICES
FOR DECIDING WHAT SHOULD BE THE SPECIFICATIONS OF THE PROCURED
EQUIPMENT/SERVICES. INSTEAD, THE INCUMBENTS OF BOTH POSITIONS ARE
VALUABLE EXPERTS OR PROFESSIONALS WHOSE ACTIONS ASSIST IN IMPLEMENTING,
AS OPPOSED TO SHAPING, THE POLICIES ESTABLISHED IN CONNECTION WITH EACH
PROCUREMENT. /12/ FURTHERMORE, IN THEIR ROLE OF ASSISTING IN THE
IMPLEMENTATION OF POLICY, THEY DO NOT FUNCTION IN THE INTEREST OF
MANAGEMENT IN A WAY WHICH IS AT ODDS WITH THEIR BEING REPRESENTED BY AN
EXCLUSIVE BARGAINING REPRESENTATIVE. ACCORDINGLY THE INCUMBENTS OF
THESE POSITIONS SHOULD REMAIN IN THE CERTIFIED UNIT. /13/
ORDER
IT IS HEREBY ORDERED THAT THE PETITION FOR CLARIFICATION OF THE UNIT
FOR WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1,
AFL-CIO WAS CERTIFIED ON FEBRUARY 14, 1979 AT THE AUTOMATIC DATA
PROCESSING SELECTION OFFICE, U.S. NAVY, WASHINGTON, D.C., BE, AND IT
HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ SECTION 7112(B)(1) OF THE STATUTE PROVIDES:
SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR ORGANIZATION
REPRESENTATION
. . . .
(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--
(1) EXCEPT AS PROVIDED UNDER SECTION 7135(A)(2) OF THIS TITLE, ANY
MANAGEMENT OFFICIAL OR
SUPERVISOR(.)
/2/ H.R. 13, 95TH CONG.,1ST SESS. SEC. 7103(A)(10)(1977).
/3/ H.R. 9094, 95TH CONG.,1ST SESS. SEC. 7103(A)(13)(1977).
/4/ IN ADOPTING THE DEFINITION OF MANAGEMENT OFFICIAL ADVANCED BY THE
HOUSE, THE HOUSE-SENATE CONFERENCE COMMITTEE ON THE CIVIL SERVICE REFORM
ACT OF 1978 REJECTED THE DEFINITION ADVANCED BY THE SENATE IN S. 2640.
THE S. 2640 DEFINITION STATED THAT "MANAGEMENT OFFICIAL' MEANS AN
EMPLOYEE HAVING AUTHORITY TO MAKE, OR TO INFLUENCE EFFECTIVELY THE
MAKING OF, POLICY WITH RESPECT TO PERSONNEL PROCEDURES OR PROGRAMS WHICH
IS NECESSARY TO AN AGENCY OR AN ACTIVITY." THIS DEFINITION WAS INTENDED
TO CODIFY DECISIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS DEFINING "MANAGEMENT OFFICIAL" UNDER E.O.
11491, AS AMENDED. S. REP. NO. 95-969, 95TH CONG.,2D SESS. 98(1978).
THE AUTHORITY NOTES, BY WAY OF CONTRAST WITH THE ADOPTED DEFINITION, THE
SENATE DEFINITION INCLUDED REFERENCE TO "POLICY WITH RESPECT TO
PERSONNEL PROCEDURES OR PROGRAMS," WHEREAS THE ADOPTED DEFINITION
REFERS
TO "POLICIES OF THE AGENCY." THUS, THE ADOPTED DEFINITION REFERS TO A
BROADER RANGE OF POLICIES WITH RESPECT TO WHICH A MANAGEMENT OFFICIAL
MAY ACT THAN DID THE DEFINITION REJECTED IN S. 2640.
/5/ H.R. REP. NO. 95-1403, 95TH CONG.,2D SESS. 40(1978). THIS
STATEMENT APPLIED AS WELL TO SUPERVISORS WHO ARE SEPARATELY DEFINED IN
SECTION 7103(A)(10) AND SEPARATELY EXCLUDED BY SECTION 7112(B)(1). THE
AUTHORITY NOTES IN THIS CONNECTION THAT THE DEFINITIONS OF SUPERVISOR
AND MANAGEMENT OFFICIAL ARE NOT MUTUALLY EXCLUSIVE. THUS THE SAME
INDIVIDUAL MAY BE EXCLUDED BY APPLICATION OF EITHER OR BOTH DEFINITIONS.
/6/ 123 CONG.REC.E 334 (DAILY ED. JAN. 26, 1977). FURTHER, IN THIS
REGARD, SECTION 7120(E) OF THE STATUTE SPECIFICALLY RECOGNIZES THE
CONFLICT OF INTEREST PROBLEM AS A BASIS FOR EXCLUDING A MANAGEMENT
OFFICIAL FROM PARTICIPATING IN THE MANAGEMENT OF A LABOR ORGANIZATION OR
ACTING AS A REPRESENTATIVE OF A LABOR ORGANIZATION.
/7/ SECTION 7101(B) OF THE STATUTE PROVIDES:
SEC. 7101. FINDINGS AND PURPOSE
. . . .
(B) IT IS THE PURPOSE OF THIS CHAPTER TO PRESCRIBE CERTAIN RIGHTS AND
OBLIGATIONS OF THE
FEDERAL GOVERNMENT AND TO ESTABLISH PROCEDURES WHICH ARE DESIGNED TO
MEET THE SPECIAL
REQUIREMENTS AND NEEDS OF THE GOVERNMENT. THE PROVISIONS OF THIS
CHAPTER SHOULD BE
INTERPRETED IN A MANNER CONSISTENT WITH THE REQUIREMENT OF AN
EFFECTIVE AND EFFICIENT
GOVERNMENT.
/8/ SECTION 7101(A) OF THE STATUTE PROVIDES:
SEC. 7101. FINDINGS AND PURPOSE
(A) THE CONGRESS FINDS THAT--
(1) EXPERIENCE IN BOTH PRIVATE AND PUBLIC EMPLOYMENT INDICATES THAT
THE STATUTORY
PROTECTION OF THE RIGHT OF EMPLOYEES TO ORGANIZE, BARGAIN
COLLECTIVELY, AND PARTICIPATE
THROUGH LABOR ORGANIZATIONS OF THEIR OWN CHOOSING IN DECISIONS WHICH
AFFECT THEM--
(A) SAFEGUARDS THE PUBLIC INTEREST,
(B) CONTRIBUTES TO THE EFFECTIVE CONDUCT OF PUBLIC BUSINESS, AND
(C) FACILITATES AND ENCOURAGES THE AMICABLE SETTLEMENTS OF DISPUTES
BETWEEN EMPLOYEES AND
THEIR EMPLOYERS INVOLVING CONDITIONS OF EMPLOYMENT; AND
(2) THE PUBLIC INTEREST DEMANDS THE HIGHEST STANDARDS OF EMPLOYEE
PERFORMANCE AND THE
CONTINUED DEVELOPMENT AND IMPLEMENTATION OF MODERN AND PROGRESSIVE
WORK PRACTICES TO
FACILITATE AND IMPROVE EMPLOYEE PERFORMANCE AND THE EFFICIENT
ACCOMPLISHMENT OF THE OPERATIONS
OF THE GOVERNMENT.
THEREFORE, LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE CIVIL
SERVICE ARE IN THE PUBLIC INTEREST.
/9/ SECTION 7102 OF THE STATUTE PROVIDES:
SEC. 7102. EMPLOYEES' RIGHTS
EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT
FEAR OF PENALTY OR REPRISAL, AND EACH EMPLOYEE SHALL BE PROTECTED IN THE
EXERCISE OF SUCH RIGHT. EXCEPT AS OTHERWISE PROVIDED UNDER THIS
CHAPTER, SUCH RIGHT INCLUDES THE RIGHT--
(1) TO ACT FOR A LABOR ORGANIZATION IN THE CAPACITY OF A
REPRESENTATIVE AND THE RIGHT, IN
THAT CAPACITY, TO PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO
HEADS OF AGENCIES AND OTHER
OFFICIALS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE CONGRESS, OR
OTHER APPROPRIATE AUTHORITIES, AND
(2) TO ENGAGE IN COLLECTIVE BARGAINING WITH RESPECT TO CONDITIONS OF
EMPLOYMENT THROUGH
REPRESENTATIVES CHOSEN BY EMPLOYEES UNDER THIS CHAPTER.
/10/ SECTION 7103(A)(2) OF THE STATUTE DEFINES "EMPLOYEE" AS FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
. . . .
(2) "EMPLOYEE" MEANS AN INDIVIDUAL--
(A) EMPLOYED IN AN AGENCY; OR
(B) WHOSE EMPLOYMENT IN AN AGENCY HAS CEASED BECAUSE OF ANY UNFAIR
LABOR PRACTICE UNDER
SECTION 7116 OF THIS TITLE AND WHO HAS NOT OBTAINED ANY OTHER REGULAR
AND SUBSTANTIALLY
EQUIVALENT EMPLOYMENT, AS DETERMINED UNDER REGULATIONS PRESCRIBED BY
THE FEDERAL LABOR
RELATIONS AUTHORITY; BUT DOES NOT INCLUDE--
(I) AN ALIEN OR NONCITIZEN OF THE UNITED STATES WHO OCCUPIES A
POSITION OUTSIDE THE UNITED
STATES;
(II) A MEMBER OF THE UNIFORMED SERVICES;
(III) A SUPERVISOR OR A MANAGEMENT OFFICIAL;
(IV) AN OFFICER OR EMPLOYEE IN THE FOREIGN SERVICE OF THE UNITED
STATES EMPLOYED IN THE
DEPARTMENT OF STATE, THE AGENCY FOR INTERNATIONAL DEVELOPMENT, OR THE
INTERNATIONAL
COMMUNICATION AGENCY; OR
(V) ANY PERSON WHO PARTICIPATES IN A STRIKE IN VIOLATION OF SECTION
7311 OF THIS TITLE(.)
/11/ IN MAKING DECISIONS AS TO POSITIONS INCLUDED IN APPROPRIATE
UNITS THE AUTHORITY WILL NOT RESOLVE ISSUES INVOLVING VACANT POSITIONS.
IN SUCH SITUATIONS, RELIANCE WOULD HAVE TO BE PLACED ON SUCH EVIDENCE AS
WRITTEN POSITION DESCRIPTIONS OR TESTIMONY AS TO WHAT THE DUTIES HAD
BEEN OR WOULD BE, WHICH EVIDENCE MIGHT NOT ACCURATELY REFLECT THE ACTUAL
DUTIES PERFORMED BY THE INCUMBENTS WHEN THE VACANCIES ARE FILLED.
/12/ SEE U.S. ARMY COMMUNICATIONS SYSTEMS AGENCY, FORT MONMOUTH, NEW
JERSEY AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476, 4 FLRA
NO. 83(1980).
/13/ IT IS NOT WITHIN THE JURISDICTION OF THE AUTHORITY TO MAKE
DETERMINATIONS AS TO WHETHER AN INDIVIDUAL IS A MANAGEMENT OFFICIAL FOR
MERIT PAY PURPOSES. INTERPRETATION AND GUIDANCE, 4 FLRA NO. 99(1980).