[ v08 p702 ]
08:0702(121)CU
The decision of the Authority follows:
8 FLRA No. 121
DEFENSE COMMUNICATIONS
ENGINEERING CENTER,
RESTON, VIRGINIA
Activity/Petitioner
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2, AFL-CIO
Labor Organization
Case No. 3-CU-56
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
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 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: THE PETITIONER, DEFENSE COMMUNICATIONS
ENGINEERING CENTER (ACTIVITY), SEEKS TO CLARIFY TWO EXISTING EXCLUSIVELY
RECOGNIZED UNITS COMPOSED OF ALL (APPROXIMATELY 125) PROFESSIONAL
EMPLOYEES IN ONE UNIT, AND ALL (APPROXIMATELY 76) NONPROFESSIONAL
EMPLOYEES IN THE SECOND UNIT, TO EXCLUDE THE INCUMBENTS OF 99 POSITIONS
FROM THE UNITS ON THE GROUND THEY ARE MANAGEMENT OFFICIALS WITHIN THE
MEANING OF THE STATUTE. THE EXCLUSIVE REPRESENTATIVE, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO (UNION), CONTENDS,
IN ESSENCE, THAT THE EMPLOYEES IN THE DISPUTED POSITIONS ARE NOT
MANAGEMENT OFFICIALS, BUT MERELY HIGHLY SKILLED EXPERTS RENDERING
RESOURCE INFORMATION, AND THEREFORE SHOULD REMAIN INCLUDED IN THE
BARGAINING UNITS.
THE UNION WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF BOTH
BARGAINING UNITS IN 1978. THE ACTIVITY CONTENDS THAT WHILE ALL OF THE
EMPLOYEES IN THE DISPUTED POSITIONS HEREIN WERE INCLUDED IN THE
BARGAINING UNITS AT THE TIME OF CERTIFICATION UNDER EXECUTIVE ORDER
11491, AS AMENDED, THEY SHOULD NOW BE EXCLUDED AS "MANAGEMENT OFFICIALS"
UNDER THE STATUTE. IN THIS REGARD, THE ACTIVITY CONTENDS THAT, AS A
CONSEQUENCE OF THE CIVIL SERVICE REFORM ACT OF 1978 AND ITS "MERIT PAY"
PROVISIONS, A REVIEW OF THESE POSITIONS INDICATES THAT THE INCUMBENTS
MEET THE DEFINITION OF "MANAGEMENT OFFICIAL" AS CONTAINED IN THE
STATUTE; THAT SUCH NONSUPERVISORY PERSONNEL COULD NOT BE CLASSIFIED AT
THE GS 13-15 LEVEL UNLESS THEIR POSITIONS "CLEARLY IMPACT POLICY,
BROAD-RANGING PROGRAMS, OR KEY PROCEDURES;" AND THAT THE MISSION OF THE
ACTIVITY ITSELF IS "POLICY AND PROGRAM FORMULATION, DEVELOPMENT,
ASSESMENT AND DIRECTION."
SECTION 7103(A)(11) OF THE STATUTE DEFINES "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(.)
IN THE LEAD CASE OF DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING
SECTION OFFICE, 7 FLRA NO. 24(1981), THE AUTHORITY INTERPRETED THAT
DEFINITION 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. THE ISSUE IS WHETHER THE INCUMBENTS
OF THE 99 DISPUTED POSITIONS ARE MANAGEMENT OFFICIALS WITHIN THE
FOREGOING DEFINITION, AS INTERPRETED BY THE AUTHORITY.
THE ACTIVITY IS A MANAGEMENT STAFF ORGANIZATION, PRODUCING POLICIES,
PROGRAMS, OPERATING PROCEDURES AND OTHER TYPES OF GUIDANCE FOR THE
DEFENSE COMMUNICATIONS SYSTEM (DCS). THE ACTIVITY IS RESPONSIBLE FOR
THE DESIGN, DEVELOPMENT AND OVERALL ENGINEERING MANAGEMENT DIRECTION OF
THE WORLDWIDE COMPLEX OF COMMUNICATIONS NETWORKS, SYSTEM CONTROL
CENTERS, OPERATING INSTALLATIONS AND RELATED FACILITIES OF THE DCS. THE
DCS PROVIDES COMMUNICATIONS FOR THE PRESIDENT, SECRETARY OF DEFENSE,
JOINT CHIEFS OF STAFF, UNIFIED AND SPECIFIED MILITARY COMMANDS,
SUBORDINATE COMMANDS, AND OTHER GOVERNMENT AGENCIES. NORMALLY, THE
ACTIVITY DOES NOT BUILD OR OPERATE THESE FACILITIES; THESE FUNCTIONS
ARE EITHER CONTRACTED OUT TO PRIVATE INDUSTRY OR PERFORMED BY PERSONNEL
OF THE MILITARY DEPARTMENTS - ARMY, NAVY OR AIR FORCE.
THE ACTIVITY IS ORGANIZED INTO 6 OFFICES AND 6 DIVISIONS, /1/ EACH OF
WHICH REPORTS DIRECTLY TO THE DIRECTOR; THE DIVISIONS ARE FURTHER
SUBDIVIDED INTO 3 OR MORE BRANCH OFFICES. ALL BUT 5 OF THE 99 DISPUTED
POSITIONS ARE LOCATED IN THE VARIOUS BRANCH OFFICES THROUGHOUT THE
ORGANIZATION, WHILE 2 ARE LOCATED IN THE OFFICE OF TECHNOLOGY, 2 ARE IN
THE OFFICE OF INTEROPERABILITY AND STANDARDS, AND ONE IS IN THE DIVISION
OF SYSTEM CONTROL AND GENERAL ENGINEERING. THE ACTIVITY SEEKS TO
EXCLUDE 94 OF THE 125 EMPLOYEES IN THE PROFESSIONAL UNIT AND 5 OF THE 76
EMPLOYEES IN THE NONPROFESSIONAL UNIT. WHILE THE DISPUTED POSITIONS
FALL INTO 9 CLASSIFICATIONS, 85 OF THEM ARE CLASSIFIED AS ELECTRONIC
ENGINEER, GS 855-15, -14, -13. THERE ARE 4 POSITIONS CLASSIFIED AS
COMMUNICATIONS SPECIALIST, GS 393-14, -13, (NONPROFESSIONAL) AND ANOTHER
4 CLASSIFIED AS OPERATIONS RESEARCH ANALYST, GS 1515-15, -14. THE
REMAINING 6 POSITIONS ARE IN THE FOLLOWING CLASSIFICATIONS: ELECTRICAL
ENGINEER, GS 850-14; INDUSTRIAL ENGINEER, GS 896-14; MECHANICAL
ENGINEER, GS 830-14; COMPUTER SCIENTIST GS 1550-14; COMPUTER
SPECIALIST GS 334-14 (NONPROFESSIONAL); AND ELECTRONIC
ENGINEER/COMPUTER SCIENTIST, GS 855/1550-14.
THE EVIDENCE ESTABLISHES THAT, WITH VARIATIONS ATTRIBUTABLE TO LENGTH
OF EXPERIENCE AND BREADTH OF TRAINING, ALL OF THE EMPLOYEES IN THE
DISPUTED CLASSIFICATIONS ARE HIGHLY SKILLED TECHNICAL SPECIALISTS IN THE
DEVELOPMENT AND IMPLEMENTATION OF TELECOMMUNICATIONS SYSTEMS. WITH SOME
VARIATIONS ATTRIBUTABLE TO THEIR RESPECTIVE AREAS OF SPECIALIZATION, AS
REFLECTED IN THE DIFFERENT CLASSIFICATIONS AT ISSUE HEREIN, ALL SUCH
EMPLOYEES ARE ENGAGED IN DEVELOPING MANUALS AND PROCEDURES FOR THE
OPERATION, MAINTENANCE AND REPAIR OF THE DCS; DEVELOPING CRITERIA FOR
AWARDING RESEARCH AND DEVELOPMENT CONTRACTS; DEVELOPING CRITERIA FOR
THE EVALUATION OF WORK PERFORMED UNDER CONTRACT; AND DEFINING THE
DIRECTION AND MODE OF FUTURE DEVELOPMENT OF TELECOMMUNICATIONS SYSTEMS.
THEY ALL WORK WITH MINIMAL SUPERVISION WITHIN THEIR AREAS OF
SPECIALIZATION, AND MAKE TECHNICAL RECOMMENDATIONS BASED UPON THEIR
SCIENTIFIC OR ENGINEERING EXPERTISE WHICH ARE GENERALLY ACCEPTED BY
THEIR SUPERVISORS AT THE BRANCH OFFICE LEVEL AND AT SUCCESSIVE LEVELS OF
REVIEW WITHIN THE ACTIVITY.
BASED UPON THE ENTIRE RECORD, THE AUTHORITY CONCLUDES THAT THE
INCUMBENTS OF THE 99 DISPUTED POSITIONS ARE NOT MANAGEMENT OFFICIALS
INASMUCH AS THEY DO NOT "FORMULATE, DETERMINE, OR INFLUENCE THE POLICIES
OF THE AGENCY" WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE,
AS THOSE TERMS WERE INTERPRETED BY THE AUTHORITY IN DEPARTMENT OF THE
NAVY, AUTOMATIC DATA PROCESSING SELECTION OFFICE. RATHER, THE
INDIVIDUALS IN THESE POSITIONS ARE HIGHLY SKILLED EXPERTS OR
PROFESSIONALS WHOSE FUNCTIONS ARE LIMITED TO INDEPENDENT TECHNICAL WORK
CONCERNING RESEARCH AND DEVELOPMENT, SYSTEM DESIGNS, SPECIFICATIONS AND
STANDARDS, AND ENGINEERING PLANNING UPON WHICH RESOURCE COMMITMENT
DECISIONS INVOLVING COMMUNICATIONS ARE BASED, NOT ONLY IN DCA, BUT ALSO
IN THE MILITARY DEPARTMENTS INVOLVED IN IMPLEMENTING, OPERATING,
MAINTAINING AND BUILDING THE DCS. THAT IS, THE INDIVIDUALS IN QUESTION
MERELY CONDUCT INITIAL STEPS IN A PROCESS, WHICH IS SUBJECT TO EXTENSIVE
REVIEW, LEADING TO THE ESTABLISHMENT OF COMMUNICATIONS POLICY, BUT DO
NOT THEMSELVES CREATE, SETTLE UPON OR BRING ABOUT THE AGENCY'S GENERAL
PRINCIPLES, PLANS OR COURSES OF ACTION.
MOREOVER, AS THE AUTHORITY NOTED IN THE AUTOMATIC DATA PROCESSING
SELECTION OFFICE CASE, SUPRA, IN DISCUSSING THE LEGISLATIVE HISTORY OF
THE STATUTE, THERE IS AN INDICATION OF ". . . 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 AN AGENCY, MUST HAVE THE INTERESTS OF AGENCY
MANAGEMENT AS HIS OR HER PRIMARY CONCERN IN THE CONTEXT OF A COLLECTIVE
BARGAINING RELATIONSHIP." AS THE RECORD REVEALS THAT THE WORK PRODUCT
AND RESPONSIBILITY OF EMPLOYEES IN THE DISPUTED CLASSIFICATIONS RELATES
TO THE DCS, WHICH IS BUILT, OPERATED, MAINTAINED AND REPAIRED BY PERSONS
NOT EMPLOYED BY THE ACTIVITY, AND INASMUCH AS SUCH EMPLOYEES HAVE BEEN
INCLUDED IN THE BARGAINING UNITS EXCLUSIVELY REPRESENTED BY THE UNION
SINCE 1978 WITH NO REAL OR APPARENT CONFLICT OF INTEREST HAVING BEEN
DEMONSTRATED IN THE RECORD BETWEEN THEIR OFFICIAL DUTIES AND
RESPONSIBILITIES AND THEIR INCLUSION IN UNITS OF EXCLUSIVE RECOGNITION,
THE AUTHORITY CONCLUDES THAT THE INCUMBENTS IN THESE POSITIONS ARE NOT
MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE STATUTE AND THEREFORE
SHOULD REMAIN IN THE CERTIFIED UNITS. /2/
ORDER
IT IS HEREBY ORDERED THAT THE UNITS SOUGHT TO BE CLARIFIED, FOR WHICH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO IS THE
CERTIFIED EXCLUSIVE REPRESENTATIVE BE, AND THEY HEREBY ARE, CLARIFIED BY
INCLUDING IN THE PROFESSIONAL UNIT EMPLOYEES CLASSIFIED AS ELECTRONIC
ENGINEER, GS 855-15, -14, -13; OPERATIONS RESEARCH ANALYST, GS 1515-15,
-14; ELECTRICAL ENGINEER, GS 850 -14; INDUSTRIAL ENGINEER, GS 896-14;
MECHANICAL ENGINEER, GS 830-14; COMPUTER SCIENTIST, GS 1550-14; AND
ELECTRONIC ENGINEER/ COMPUTER SCIENTIST, GS 855/1550-14; AND BY
INCLUDING IN THE NONPROFESSIONAL UNIT EMPLOYEES CLASSIFIED AS
COMMUNICATIONS SPECIALIST, GS 393-14, -13; AND COMPUTER SPECIALIST,
GS-334-14.
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 OFFICE OF ENGINEERING PROGRAMS; THE OFFICE OF TECHNOLOGY;
THE OFFICE OF ENGINEERING PLANNING; THE OFFICE OF INTEROPERABILITY AND
STANDARDS; THE OFFICE OF PERSONNEL; THE OFFICE OF MANAGEMENT SERVICES;
DIVISION OF TRANSMISSION ENGINEERING; DIVISION OF SYSTEM CONTROL AND
GENERAL ENGINEERING; DIVISION OF SATCOM ENGINEERING; DIVISION OF
SWITCHED NETWORKS ENGINEERING; DIVISION OF SYSTEMS ENGINEERING; AND
DIVISION OF COMPUTER SYSTEMS. THREE OF THE OFFICES-- ENGINEERING
PROGRAMS, TECHNOLOGY, AND ENGINEERING PLANNING-- ARE EACH HEADED BY AN
ASSOCIATE DIRECTOR; THE OTHER THREE OFFICES, LIKE THE DIVISIONS AND THE
BRANCHES, ARE HEADED BY A CHIEF.
/2/ OF COURSE, IT IS NOT WITHIN THE JURISDICTION OF THE AUTHORITY TO
MAKE DETERMINATIONS AS TO WHETHER SUCH INDIVIDUALS MAY BE CONSIDERED
MANAGEMENT OFFICIALS BY THE ACTIVITY FOR MERIT PAY PURPOSES, AND THE
FOREGOING DECISION SHOULD NOT BE SO CONSTRUED. INTERPRETATION AND
GUIDANCE, 4 FLRA NO. 99(1980).