[ v08 p684 ]
08:0684(118)CU
The decision of the Authority follows:
8 FLRA No. 118 U.S. ARMY, DUGWAY PROVING GROUND DUGWAY, UTAH Activity/Petitioner /1/ and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-62 Labor Organization /2/ Case No. 7-CU-29 DECISION AND ORDER ON PETITION FOR CLARIFICATION OF OF UNIT UPON A PETITION DULY FILED UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING OFFICER OF THE AUTHORITY. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED. UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEF OF THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-62, (NAGE), THE AUTHORITY FINDS: THE ACTIVITY-PETITIONER SEEKS TO CLARIFY THE EXISTING UNIT OF ALL GENERAL SCHEDULE NONSUPERVISORY PROFESSIONAL EMPLOYEES AT DUGWAY PROVING GROUND, /3/ REPRESENTED EXCLUSIVELY BY THE NAGE, TO EXCLUDE 26 POSITIONS AS EITHER MANAGEMENT OFFICIALS OR SUPERVISORS. /4/ THE NAGE TAKES THE POSITION THAT THE EMPLOYEES IN QUESTION ARE NEITHER SUPERVISORS NOR MANAGEMENT OFFICIALS AS DEFINED IN SECTION 7103(A)(10) AND (11) OF THE STATUTE RESPECTIVELY, /5/ AND, THEREFORE, SHOULD NOT BE EXCLUDED FROM THE BARGAINING UNIT. THE PRIMARY MISSION OF THE ACTIVITY IS TO TEST CHEMICAL AND BIOLOGICAL AGENTS AND WEAPON SYSTEMS, AND TO PERFORM RESEARCH AND DEVELOPMENT OF METHODS, INSTRUMENTATION AND OTHER REQUIREMENTS NEEDED TO PERFORM THESE TESTS. IN ACCOMPLISHING THIS MISSION, THE ACTIVITY EMPLOYS, AMONG OTHERS, VARIOUS EMPLOYEES WITH EXTENSIVE SCIENTIFIC OR TECHNICAL BACKGROUNDS. ALL OF THE EMPLOYEES IN QUESTION FALL INTO THESE TWO CATEGORIES. THE RECORD REFLECTS THAT ALL ARE CONSIDERED EXPERTS IN THEIR SCIENTIFIC OR TECHNICAL AREAS OF EXPERTISE, AND THEIR WORK IN PERFORMING THE ACTIVITY'S MISSION GENERALLY ENDS UP IN PUBLISHED FORM EITHER INTERNALLY WITHIN THE DEPARTMENT OF DEFENSE OR IN SCIENTIFIC JOURNALS. WITH EXCEPTION OF FOUR POSITIONS LOCATED IN OTHER DIRECTORATES, DISCUSSED SEPARATELY BELOW, THE POSITIONS IN QUESTION HEREIN ARE FOUND IN THE MATERIAL TEST DIRECTORATE, THE ACTIVITY'S BASIC OPERATIONAL SEGMENT. THESE POSITIONS FALL INTO TWO CATEGORIES, THOSE WHICH THE ACTIVITY CONTENDS ARE BOTH MANAGEMENT OFFICIALS AND SUPERVISORS AND THOSE WHICH THE ACTIVITY CONTENDS ARE SOLELY MANAGEMENT OFFICIALS. /6/ THE FOLLOWING INCUMBENTS FALL WITHIN THE FIRST CATEGORY: WILLIAM B. BROWN, MATHEMATICIAN-STATISTICIAN, GS-1529-13, JOB NUMBER 1717. KENNETH S. CHINN, RESEARCH CHEMIST, GS-1320-13, JOB NUMBER 1702. DAVID A. GAUTHIER, BIOLOGIST, GS-0401-13, JOB NUMBER 1473. MARTIN A. HOULE, CHEMIST, GS-1320-13, JOB NUMBER 2086. CURTIS JONES, PHYSICAL SCIENTIST, GS-1301-13, JOB NUMBER 1713. DALE F. KING, BIOLOGIST, GS-0401-13, JOB NUMBER 1473. JOHN E. MEIKLE, RESEARCH CHEMIST, GS-1320-13, JOB NUMBER 1702. JEWEL MORTENSON, CHEMIST, GS-1320-13, JOB NUMBER 1191. CARLOS F. A. PINKHAM, ZOOLOGIST, GS-0410-13, JOB NUMBER 1363. GARY I. RESNICK, MICROBIOLOGIST, GS-0403-13, JOB NUMBER 2040. MERAN A. SMITH, MICROBIOLOGIST, GS-0403-13, JOB NUMBER 2040. GARY L. SUTTEN, MATHEMATICIAN-STATISTICIAN, GS-1529-13, JOB NUMBER 1717. WILBERT TAYLOR, PHYSICAL SCIENTIST, GS-1301-13, JOB NUMBER 1713. CONSIDERING FIRST THE QUESTION OF THE ABOVE-NOTED INCUMBENTS' ALLEGED SUPERVISORY STATUS, THE AUTHORITY CONCLUDES THAT NONE OF THEM OCCUPIES A SUPERVISORY POSITION WITHIN THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE. THUS, THE RECORD REFLECTS THAT NONE OF THE INCUMBENTS HAS ANY EMPLOYEE OF THE ACTIVITY PERMANENTLY UNDER HIS DIRECTION, AND EACH INCUMBENT REPORTS UPWARDS TO THE HEAD OF THE DIRECTORATE THROUGH BOTH A BRANCH AND A DIVISION CHIEF. /7/ WHILE ALL OF THE INCUMBENTS SPEND A PORTION OF THEIR TIME AS PROJECT LEADERS OR TEST OFFICERS, DURING WHICH TIME THEY MAY HAVE FROM 2 TO 30 OF THE ACTIVITY'S EMPLOYEES UNDER THEIR TECHNICAL DIRECTION, THE RECORD ESTABLISHES THAT SUCH TECHNICAL DIRECTION IS MERELY ROUTINE IN NATURE AND DOES NOT REQUIRE THE EXERCISE OF INDEPENDENT JUDGMENT. THUS, ALL EMPLOYEES ON A PROJECT OR TEST RECEIVE THEIR ASSIGNMENTS THROUGH THE CHAIN OF COMMAND AND CONTINUE TO REPORT TO THEIR TEAM OR BRANCH CHIEF WHO RETAINS THE AUTHORITY TO GRANT LEAVE. MOREOVER, THE WORK ON A PROJECT OR TEST IS PERFORMED IN A COLLEGIAL ATMOSPHERE IN WHICH AN INDIVIDUAL'S SCIENTIFIC EXPERTISE IS PARAMOUNT. THUS, THE AUTHORITY OF PROJECT OR TEST LEADERS TO DIRECT EMPLOYEES ASSIGNED IS LIMITED TO THE TECHNICAL CONDUCT OF THE PROJECT OR TEST; ANY QUESTIONS OF DISCIPLINE, REWARDS, OR OVERTIME ARE NOT WITHIN THE LEADERS' DISCRETION. ACCORDINGLY, AS THE INCUMBENTS EXERCISE NONE OF THE INDICIA OF SUPERVISORY STATUS, THEY SHALL NOT BE EXCLUDED FROM THE UNIT AS SUPERVISORS. /8/ THE INCUMBENTS' ALLEGED STATUS AS MANAGEMENT OFFICIALS SHALL BE CONSIDERED TOGETHER WITH THE SECOND CATEGORY OF INCUMBENTS, SET FORTH IMMEDIATELY BELOW, WHO ARE ALSO ALLEGED TO BE MANAGEMENT OFFICIALS: PAUL I. HOWARD, MATHEMATICIAN-STATISTICIAN, GS-1529-13, JOB NUMBER 1485. DUANE E. LONG, RESEARCH CHEMIST, GS-1320-13, JOB NUMBER 1881. EDWARD RENGERS, RESEARCH METEOROLOGIST, GS-1340-13, JOB NUMBER 1757. WILLIAM H. ROSE, OPERATIONS RESEARCH ANALYST, GS-1515-13, JOB NUMBER 1539. RONALD D. STRICKLETT, OPERATIONS RESEARCH ANALYST, GS-1515-13, JOB NUMBER 1539. THE AUTHORITY CONCLUDES THAT NONE OF THE INCUMBENTS OF POSITIONS IN EITHER CATEGORY IS A MANAGEMENT OFFICIAL INASMUCH AS SUCH INCUMBENTS DO NOT "FORMULATE, DETERMINE, OR INFLUENCE THE POLICIES OF THE (ACTIVITY)" WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE, AS INTERPRETED BY THE AUTHORITY. /9/ THUS, ALL OF THE INCUMBENTS WORK AS EXPERTS IN THEIR FIELDS AND THEIR WORK, WHILE GENERALLY LEFT UNCHANGED, IS PERFORMED IN CONFORMANCE WITH THE ACTIVITY'S ESTABLISHED GUIDELINES FOR RESEARCH AND TESTING. THEIR RESEARCH WORK IS GENERALLY ASSIGNED FROM ABOVE, AND, ALTHOUGH ANY OF THE INCUMBENTS' RESEARCH WORK MAY LEAD TO MAJOR SCIENTIFIC PROJECTS OR TESTS LATER UNDERTAKEN BY THE ACTIVITY, SUCH RESEARCH WORK MUST FALL WITHIN THE ACTIVITY'S PREDETERMINED MISSION AND IS SUBJECT TO SEVERAL LAYERS OF REVIEW-- INCLUDING REVIEW BY HIGHER LEVELS WITHIN THE DEPARTMENT OF DEFENSE-- BEFORE THE ACTIVITY WILL UNDERTAKE THE PROJECT OR TEST. THEREFORE, THE INCUMBENTS DO NOT FORMULATE OR DETERMINE THE POLICIES OF THE ACTIVITY. RATHER, THEIR INFLUENCE IS LIMITED TO THAT OF EXPERTS OR PROFESSIONALS RENDERING ADVICE AND DOES NOT RISE TO THE LEVEL OF BRINGING ABOUT OR OBTAINING A RESULT AS TO THE ADOPTION OF GENERAL PRINCIPLES, PLANS OR COURSES OF ACTION FOR THE ACTIVITY. /10/ ACCORDINGLY, THE AUTHORITY CONCLUDES THAT ALL OF THE POSITIONS NOTED ABOVE SHOULD BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT. THE ACTIVITY ALSO SEEKS TO EXCLUDE FROM THE EXCLUSIVELY RECOGNIZED UNIT, AS MANAGEMENT OFFICIALS, THE INCUMBENTS OF THE FOLLOWING POSITIONS LOCATED IN THE PLANS AND OPERATIONS DIRECTORATE OF THE ACTIVITY: ERNEST H. BUHLMAN, PHYSICAL SCIENTIST, GS-1301-14, JOB NUMBER 726. ELLIOT G. PETERSON, PHYSICIST, GS-1301-14, JOB NUMBER 1716. VICTOR PRATT, GENERAL ENGINEER, GS-0801-14, JOB NUMBER 1720. THE AUTHORITY FINDS THAT THE POSITION ENCUMBERED BY ERNEST BUHLMAN IS NOT THAT OF A MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE INASMUCH AS THE INCUMBENT DOES NOT FORMULATE, DETERMINE, OR INFLUENCE POLICIES OF THE ACTIVITY. THUS, UNDER THE DIRECTORATE CHIEF'S SUPERVISION, HE PRIMARILY SERVES AS THE COORDINATOR OF PROJECTS ASSIGNED FROM HIGHER LEVELS OF THE DEPARTMENT OF DEFENSE AND OF PROJECTS ORIGINATING AT THE ACTIVITY LEVEL. IN THIS REGARD, HE IS RESPONSIBLE FOR COORDINATING THE ACTIVITY'S FIVE YEAR PLAN AND, IN ACCOMPLISHING THIS RESPONSIBILITY, HE CHAIRS A COMMITTEE STAFFED WITH REPRESENTATIVES OF THE VARIOUS ACTIVITY DIRECTORATES. ALTHOUGH HIS RECOMMENDATIONS ARE CONSIDERED BY THE COMMITTEE, HE SERVES AS A NONVOTING MEMBER, AND THE COMMANDING OFFICER AND THE SCIENTIFIC DIRECTOR MAKE THE DETERMINATIONS AS TO THE ACTIVITY'S FINAL COMMITMENT REGARDING RESEARCH AND TESTING. THEREFORE, THE INCUMBENT NEITHER FORMULATES NOR DETERMINES THE ACTIVITY'S POLICIES. RATHER, HIS INFLUENCE IS LIMITED TO THAT OF RENDERING PROFESSIONAL ADVICE AND OF COORDINATING THE POLICIES SET BY OTHERS. ACCORDINGLY, THE INCUMBENT SHALL BE INCLUDED IN THE EXCLUSIVE UNIT. FURTHER, THE AUTHORITY FINDS THAT THE POSITION ENCUMBERED BY ELLIOT PETERSON IS NOT THAT OF A MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE INASMUCH AS THE INCUMBENT DOES NOT FORMULATE, DETERMINE, OR INFLUENCE THE ACTIVITY'S POLICY. PETERSON HAS TWO MAJOR RESPONSIBILITIES, BOTH OF WHICH INVOLVE PRIMARILY COORDINATION ACTIVITIES. THUS, THE INCUMBENT SERVES AS THE ACTIVITY'S REPRESENTATIVE WITH THE STATES OF UTAH AND COLORADO REGARDING THE ACTIVITY'S USE OF TEST RANGES. IN ADDITION, HE COORDINATES THE ACTIVITY'S PURCHASE OF NEW INSTRUMENTATION FOR USE IN TESTING. NEITHER OF THESE RESPONSIBILITIES INVOLVES THE FORMULATION, DETERMINATION, OR INFLUENCING OF THE ACTIVITY'S POLICIES. WITH RESPECT TO COORDINATION OF PURCHASING, THE INCUMBENT'S RESPONSIBILITIES INVOLVE COORDINATION OF THE POLICIES DEVELOPED BY OTHERS, AND THEREFORE HE DOES NOT BRING ABOUT OR OBTAIN RESULTS WITH RESPECT TO THE ADOPTION OF GENERAL PRINCIPLES, PLANS OR COURSES OF ACTION FOR THE ACTIVITY. /11/ ACCORDINGLY, THE INCUMBENT SHALL BE INCLUDED IN THE EXCLUSIVE UNIT. THE AUTHORITY ALSO FINDS THAT VICTOR PRATT'S POSITION IS NOT THAT OF A MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE INASMUCH AS HE DOES NOT FORMULATE, DETERMINE, OR INFLUENCE THE ACTIVITY'S POLICY. THUS, THE INCUMBENT SERVES PRIMARILY AS THE ACTIVITY'S EXPERT WITH RESPECT TO ENVIRONMENTAL REGULATIONS, PARTICULARLY THOSE OF THE ENVIRONMENTAL PROTECTION AGENCY. HE ADVISES THE COMMANDER IN THIS AREA AND SERVES AS THE COMMANDER'S REPRESENTATIVE ON ACTIVITY COMMITTEES DEVOTED TO COORDINATING ONGOING PROJECTS AND TESTS WITH RESPECT TO THEIR ENVIRONMENTAL EFFECTS. HE NEITHER FORMULATES NOR DETERMINES THE ACTIVITY'S ENVIRONMENTAL POLICY, AND HIS INFLUENCE IS LIMITED TO THAT OF AN EXPERT RENDERING ADVICE WITH RESPECT TO THE REGULATIONS INVOLVED. ACCORDINGLY, THE INCUMBENT SHALL BE INCLUDED IN THE EXCLUSIVE UNIT. FINALLY, THE ACTIVITY SEEKS TO EXCLUDE AS BOTH A MANAGEMENT OFFICIAL AND SUPERVISOR THE POSITION ENCUMBERED BY BRUCE WILSON, OPERATIONS RESEARCH ANALYST, GS-1515-13, JOB NUMBER 1717, IN THE DIRECTORATE FOR MANAGEMENT INFORMATION SYSTEMS. WILSON PERFORMS ACTIVITY-WIDE COMPUTER SERVICES, AS WELL AS THE ACTIVITY'S DATA PROCESSING FUNCTION. THE POSITION IS LOCATED IN THE DIRECTORATE'S ADP SYSTEMS DIVISION. THE AUTHORITY FINDS THAT WILSON'S POSITION IS NEITHER THAT OF A SUPERVISOR NOR OF A MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103(A)(10) AND (11) OF THE STATUTE (SUPRA N. 5.) THUS, THE INCUMBENT PRIMARILY IS RESPONSIBLE FOR PROVIDING COMPUTER PROGRAMMING ASSISTANCE TO THE ACTIVITY'S ONGOING PROJECTS AS ASSIGNED OR REQUESTED, AND SERVES AS AN INTERFACE BETWEEN THE PROGRAM AND THE COMPUTER PERSONNEL RESPONSIBLE FOR DEVELOPING THOSE PROGRAMS. IN SOME CASES HE MAY ACT AS A TEAM LEADER, HAVING TECHNICAL DIRECTION OVER SEVERAL EMPLOYEES. HOWEVER, AS WITH THE ABOVE-NOTED PROJECT LEADERS AND TEST OFFICERS FOUND NOT TO BE SUPERVISORS, WILSON HAS NO ADMINISTRATIVE CONTROL OVER EMPLOYEES ASSIGNED TO HIS TEAM, AND THE TECHNICAL DIRECTION GIVEN BY HIM TO THOSE ASSIGNED IS OF A ROUTINE NATURE AND NOT REQUIRING THE USE OF INDEPENDENT JUDGMENT. SUCH DIRECTION IS GIVEN IN A COLLEGIAL ATMOSPHERE WHEREIN TEAM MEMBERS GENERALLY WORK "WITH" RATHER THAN "FOR" THEIR TEAM LEADER. MOREOVER, ALL WORK PERFORMED BY THE INCUMBENT, WHETHER ON HIS OWN OR AS PART OF A TEAM, MUST BE IN CONFORMANCE WITH THE ACTIVITY'S OVERALL POLICIES. THEREFORE, HE SERVICES SOLELY AS AN EXPERT PERFORMING ASSIGNED FUNCTIONS AND DOES NOT FORMULATE, DETERMINE, OR INFLUENCE THE ACTIVITY'S POLICY. ACCORDINGLY, THE INCUMBENT SHALL BE INCLUDED IN THE EXCLUSIVE UNIT. ORDER IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 7-CU-29, SEEKING TO CLARIFY THE UNIT REPRESENTED EXCLUSIVELY BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-62, TO EXCLUDE CERTAIN EMPLOYEES AS SUPERVISORS OR MANAGEMENT OFFICIALS, BE, AND IT HEREBY IS, DISMISSED IN ITS ENTIRETY. ISSUED, WASHINGTON, D.C., MAY 20, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ THE NAME OF THE ACTIVITY-PETITIONER APPEARS AS AMENDED AT THE HEARING. /2/ THE NAME OF THE INCUMBENT LABOR ORGANIZATION APPEARS AS AMENDED AT THE HEARING. /3/ THE PETITION ALSO SOUGHT TO AMEND THE CERTIFICATION TO CHANGE THE NAME OF THE ACTIVITY TO THAT SET FORTH IN THE CAPTION. NOTING THE PARTIES' STIPULATION IN THIS REGARD, THE AUTHORITY HEREBY AMENDS THE CERTIFICATION AS REQUESTED. /4/ THE PARTIES STIPULATED AS TO THE SUPERVISORY STATUS OF A 26TH POSITION LISTED IN THE PETITION INASMUCH AS THE EMPLOYEE HAD BEEN PROMOTED TO TEAM LEADER. /5/ SEC. 7103. DEFINITIONS; APPLICATION (A) FOR THE PURPOSES 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 . . . ; (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(.) /6/ THE FOLLOWING POSITIONS WERE VACANT AT THE TIME OF THE HEARING: JOB NUMBER 1713, PHYSICAL SCIENTIST, GS-1301-13; JOB NUMBER 579, MICROBIOLOGIST, GS-0403-13; JOB NUMBER 2062, BIOLOGICAL SCIENTIST, GS-0401-13; AND JOB NUMBER 1700, BIOLOGICAL SCIENTIST, GS-0401-13. UNDER THESE CIRCUMSTANCES, THE AUTHORITY WILL NOT RESOLVE THE ISSUES REGARDING THESE POSITIONS. SEE DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION OFFICE, 7 FLRA NO. 24, AT N.11(1981). /7/ INCUMBENTS BROWN, JONES, SUTTEN AND TAYLOR ALSO REPORT TO THEIR RESPECTIVE SUPERVISORY TEAM LEADERS. /8/ SEE ALSO NATIONAL OCEAN SURVEY, NATIONAL OCEANIC & ATMOSPHERIC ADMINISTRATION, 6 FLRA NO. 43(1981) AND U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL WEATHER SERVICE, EASTERN REGION, 5 FLRA NO. 43(1981). /9/ SEE DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION OFFICE, 7 FLRA NO. 24(1981), IN WHICH THE AUTHORITY INTERPRETED THE DEFINITION OF MANAGEMENT OFFICIAL UNDER SECTION 7103(A)(11) OF THE STATUTE AND CONCLUDED THAT IT 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. /10/ ID. /11/ ID.