[ v10 p125 ]
10:0125(26)RO
The decision of the Authority follows:
10 FLRA No. 26 U.S. ARMY ENGINEER TOPOGRAPHIC LABORATORIES, FORT BELVOIR, VIRGINIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1052, AFL-CIO Labor Organization/Petitioner Case No. 3-RO-76 DECISION AND DIRECTION OF ELECTION UPON A PETITION DULY FILED UNDER SECTION 7111(B)(1) 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 BRIEFS FILED BY THE PARTIES, THE AUTHORITY FINDS: THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1052, AFL-CIO (AFGE) SEEKS TO REPRESENT A UNIT OF CURRENTLY UNREPRESENTED PROFESSIONAL EMPLOYEES AT THE U.S. ARMY ENGINEER TOPOGRAPHIC LABORATORIES, FORT BELVOIR, VIRGINIA (THE ACTIVITY). THE PARTIES STIPULATED AND THE AUTHORITY FINDS IN ACCORDANCE WITH THE CRITERIA SET FORTH IN SECTION 7112 OF THE STATUTE THAT THE FOLLOWING CONSTITUTES AN APPROPRIATE UNIT: INCLUDED: ALL NONSUPERVISORY PROFESSIONAL EMPLOYEES OF THE U.S. ARMY ENGINEER TOPOGRAPHIC LABORATORIES, FORT BELVOIR, VIRGINIA. EXCLUDED: ALL NON-PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS, AND EMPLOYEES DESCRIBED IN SECTION 7112(B)(2), (3), (4), (6) AND (7) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. THE ACTIVITY SEEKS TO HAVE 51 POSITIONS SPECIFICALLY EXCLUDED FROM THIS UNIT, CONTENDING THAT THE INCUMBENTS ARE MANAGEMENT OFFICIALS AS DEFINED IN SECTION 7103(A)(11) OF THE STATUTE. /1/ THE PETITIONER TAKES THE POSITION THAT THE EMPLOYEES IN QUESTION ARE NOT MANAGEMENT OFFICIALS AND, THEREFORE, SHOULD NOT BE EXCLUDED FROM THE UNIT. THE ACTIVITY IS A SEPARATE SUBORDINATE COMMAND WITHIN THE U.S. ARMY CORPS OF ENGINEERS. ITS MISSION INVOLVES PERFORMING RESEARCH AND DEVELOPMENT IN THE TOPOGRAPHIC SCIENCES INCLUDING MAPPING, POINT POSITIONING, AND MILITARY GEOGRAPHIC INFORMATION; PROVIDING SCIENTIFIC AND TECHNICAL ADVISORY SERVICES TO ASSESS THE EFFECTS OF THE ENVIRONMENT ON THE DESIGN, TESTING, AND OPERATION OF MATERIEL; PRODUCING TERRAIN ANALYSES IN SUPPORT OF ARMY STUDIES AND OPERATIONS; AND UPDATING MATERIEL TECHNICAL MANUALS. FUNDING FOR THE ACTIVITY COMES FROM VARIOUS SOURCES SUCH AS THE CORPS OF ENGINEERS OR FROM REIMBURSEMENT FOR WORK PERFORMED ON BEHALF OF CUSTOMERS INCLUDING THE DEPARTMENT OF THE ARMY, THE DEPARTMENT OF DEFENSE AND OTHER FEDERAL AGENCIES. THE ACTIVITY ACCOMPLISHES ITS OBJECTIVES EITHER BY HAVING THE WORK PERFORMED WITHIN ONE OF ITS OWN LABORATORIES OR BY CONTRACTING OUT THE WORK TO A CIVILIAN CONTRACTOR. OF THE 314 EMPLOYEES AT THE ACTIVITY, APPROXIMATELY 64 PERCENT ARE SCIENTISTS AND ENGINEERS. THE 51 POSITIONS IN QUESTION ARE FILLED BY SCIENTISTS, ENGINEERS, OR MATHEMATICIANS, SEVEN OF WHOM ARE GRADED AT GS-14 AND 44 OF WHOM ARE GS-13S. /2/ OF THE 51 POSITIONS AT ISSUE, 47 OF THE INCUMBENTS ARE ALLEGED TO BE MANAGEMENT OFFICIALS BECAUSE THEY PROPOSE MAJOR PROJECTS KNOWN AS "WORK UNITS" AND/OR ACT AS CONTRACTING OFFICERS' REPRESENTATIVES. /3/ GENERALLY, A WORK UNIT IS MANAGED BY THE EMPLOYEE WHO PROPOSES IT WHO IS SOMETIMES REFERRED TO AS THE PRINCIPAL INVESTIGATOR OR THE PROJECT ENGINEER. AS NOTED ABOVE, SECTION 7103(A)(11) OF THE STATUTE DEFINES THE TERM "MANAGEMENT OFFICIAL." IN DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION 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 QUESTION IS WHETHER THE INCUMBENTS OF THE POSITIONS AT ISSUE HEREIN ARE MANAGEMENT OFFICIALS WITHIN THE FOREGOING DEFINITION, AS INTERPRETED BY THE AUTHORITY. THE AUTHORITY FINDS THAT THE INCUMBENTS WHO ARE ALLEGED BY THE ACTIVITY TO BE MANAGEMENT OFFICIALS BECAUSE THEY PROPOSE WORK UNITS AND ACT AS CONTRACTING OFFICERS' REPRESENTATIVES 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. RATHER, THE INDIVIDUALS IN THESE POSITIONS ARE EXPERT PROFESSIONALS WHOSE ACTIONS ASSIST IN IMPLEMENTING, AS OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES IN THE AREAS OF RESEARCH AND DEVELOPMENT. IN THIS REGARD, THE ROLE OF THE INCUMBENTS IS LIMITED TO DEVELOPING, RECOMMENDING, RENDERING EXPERT ADVICE AND PERFORMING RESEARCH AND DEVELOPMENT TASKS, BUT DOES NOT EXTEND BEYOND THAT TO THE POINT OF CREATING, SETTLING UPON OR BRINGING ABOUT THE ACTIVITY'S POLICY DETERMINATIONS IN ANY OF THESE AREAS. SEE DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION OFFICE, 7 FLRA NO. 24(1981). FURTHERMORE, IN THEIR ROLE OF ASSISTING IN THE IMPLEMENTATION OF POLICY, THEY DO NOT FUNCTION IN THE INTEREST OF MANAGEMENT IN A WAY WHICH WOULD CONFLICT WITH THEIR BEING REPRESENTED BY AN EXCLUSIVE BARGAINING REPRESENTATIVE. ACCORDINGLY, THE INCUMBENTS OF THESE POSITIONS SHALL BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT. SEE DEPARTMENT OF THE NAVY, CIVIL ENGINEERING LABORATORY, PORT HUENEME, CALIFORNIA, 8 FLRA NO. 122(1982). THE REMAINING POSITIONS AT ISSUE ARE ENCUMBERED BY THE FOUR PHYSICAL SCIENTISTS IN THE ACTIVITY'S PLANS, REQUIREMENTS AND OPERATIONS OFFICE. THE ACTIVITY ARGUES THAT THREE OF THE FOUR ARE MANAGEMENT OFFICIALS BECAUSE THEY ANALYZE REQUIREMENTS ESTABLISHED BY HIGHER HEADQUARTERS AND OTHER AGENCIES AND, CONSISTENT WITH EITHER THE ACTIVITY'S SHORT-- OR LONG-- RANGE PLAN, EVALUATE THE WORK UNITS PROPOSED BY THE SCIENTISTS, ENGINEERS AND MATHEMATICIANS PREVIOUSLY DISCUSSED. BASED ON THESE ANALYSES AND EVALUATIONS, THEY USE THEIR TECHNICAL EXPERTISE IN MAKING RECOMMENDATIONS WHICH ARE SUBJECT TO HIGHER LEVEL APPROVAL. IN ADDITION, THE ACTIVITY ARGUES THAT THE THREE INCUMBENTS ARE MANAGEMENT OFFICIALS BECAUSE THEY MEET WITH ACTIVITY MANAGEMENT TO SEEK APPROVAL OF THEIR RECOMMENDATIONS, AND THEY ATTEND MEETINGS INVOLVING REPRESENTATIVES OF OTHER AGENCIES WHICH USE THE SERVICES OF THE ACTIVITY. IN THIS REGARD, THE EVIDENCE INDICATES THAT THEIR DUTIES ARE LIMITED TO USING THEIR TECHNICAL EXPERTISE TO CLARIFY EXISTING GUIDELINES. BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT THESE THREE PHYSICAL SCIENTISTS ARE ALSO NOT MANAGEMENT OFFICIALS INASMUCH AS THEY ASSIST IN IMPLEMENTING, AS OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES. SEE DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION OFFICE, 7 FLRA NO. 24(1981). IN THEIR ROLE OF ASSISTING IN THE IMPLEMENTATION OF POLICY, THEY DO NOT FUNCTION IN THE INTEREST OF MANAGEMENT IN A WAY WHICH WOULD CONFLICT WITH THEIR BEING REPRESENTED BY AN EXCLUSIVE BARGAINING REPRESENTATIVE. ACCORDINGLY, THE INCUMBENTS OF THESE THREE POSITIONS SHALL BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT. SIMILARLY, THE AUTHORITY FINDS THAT THE FOURTH PHYSICAL SCIENTIST IN THE PLANS, REQUIREMENTS AND OPERATIONS OFFICE, THE INCUMBENT OF JOB NUMBER 5051, IS NOT A MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE. THIS INDIVIDUAL'S JOB INVOLVES REVIEWING INTELLIGENCE DOCUMENTS TO DETERMINE WHETHER THEY ARE PERTINENT TO THE ACTIVITY'S PROGRAMS. THE ACTIVITY CONTENDS THE INCUMBENT IS A MANAGEMENT OFFICIAL BECAUSE OF HIS RECOMMENDATIONS REGARDING WHETHER WORK UNITS SHOULD BE INITIATED OR REVISED. AS WITH THE OTHER THREE PHYSICAL SCIENTISTS, THE RECORD SHOWS THAT THE INCUMBENT'S RECOMMENDATIONS ARE BASED ON HIS TECHNICAL EXPERTISE AND SUBJECT TO HIGHER LEVEL REVIEW AND APPROVAL CONSISTENT WITH THE ACTIVITY'S SHORT-- OR LONG-RANGE PLANS. ACCORDINGLY, THE INCUMBENT IN THIS POSITION ALSO SHALL BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT. DIRECTION OF ELECTION AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN THE UNIT DESCRIBED ABOVE AS SOON AS FEASIBLE. THE APPROPRIATE REGIONAL DIRECTOR SHALL SUPERVISE OR CONDUCT THE ELECTION, AS APPROPRIATE, SUBJECT TO THE AUTHORITY'S RULES AND REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE VOTING GROUP WHO WERE EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO HAVE QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE ON WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1052, AFL-CIO. ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY (APPENDIX OMITTED) --------------- FOOTNOTES$ --------------- /1/ SEC. 7103. DEFINITIONS; APPLICATION (A) FOR THE PURPOSE OF THIS CHAPTER-- . . . . (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(.) /2/ THE POSITIONS AT ISSUE ARE SET FORTH IN THE APPENDIX. /3/ TWO OF THESE 47, INCUMBENT MATHEMATICIANS JOB NUMBER D-4181, GS-1520-13, AND JOB NUMBER D-3085, GS-1520-13, ARE ALLEGED TO BE MANAGEMENT OFFICIALS BECAUSE THEY WILL PERFORM THESE DUTIES AT SOME TIME IN THE FUTURE. THE AUTHORITY MUST RELY UPON EVIDENCE AS TO DUTIES ACTUALLY ASSIGNED AT THE TIME OF THE HEARING RATHER THAN ON TESTIMONY REGARDING DUTIES WHICH MAY BE PERFORMED AT SOME FUTURE TIME. SEE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-35, 8 FLRA NO. 114(1982) AT N. 3. THEREFORE, THESE TWO POSITIONS WILL BE INCLUDED IN THE UNIT IN VIEW OF THE ABSENCE OF ANY INDICATION THAT THEIR CURRENT DUTIES MAKE THEM MANAGEMENT OFFICIALS. IN ADDITION, IT APPEARS THAT THE INCUMBENT OF ONE POSITION IS DETAILED ELSEWHERE. THAT EMPLOYEE, A GEOGRAPHER, JOB NUMBER 1792.A, GS-0150-14, IS ON ASSIGNMENT OUTSIDE OF THE PROPOSED UNIT. AS THE RECORD DOES NOT CONTAIN SUFFICIENT INFORMATION ABOUT THE DUTIES OF THIS EMPLOYEE, THE AUTHORITY CANNOT MAKE A DETERMINATION AS TO THE STATUS OF THIS POSITION.