[ v11 p66 ]
11:0066(22)CU
The decision of the Authority follows:
11 FLRA No. 22
ADJUTANT GENERAL OF MICHIGAN,
AIR NATIONAL GUARD,
BATTLE CREEK, MICHIGAN
Activity/Petitioner
and
MICHIGAN STATE COUNCIL,
ASSOCIATION OF CIVILIAN TECHNICIANS /1/
Labor Organization
Case No. 5-CU-33
DECISION AND ORDER CLARIFYING UNIT
Upon a petition duly filed with the 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 hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority finds: The Michigan State Council,
Association of Civilian Technicians, was recognized on May 28, 1969 as
the exclusive bargaining representative for a unit of all technician
personnel employed by the Michigan Air National Guard. Essentially, the
petition seeks to clarify the bargaining unit status of six employees
based on the Activity/Petitioner's contention that they are supervisors.
The Activity/Petitioner contends that Mark Harris, Ground Power Support
Systems Mechanic, WG-5378-11; David R. Webb, Electronics Mechanic,
WG-2614-12; William Humphreys, Instrument Mechanic, WG-3359-12; Clyde
W. Sells, Fabric Worker, WG-3105-11; Charles G. Wait, Aircraft
Refueling Vehicle Operator, WG-5701-09 /2/ and Raymond Cross, Production
Controller, GS-1152-09, are supervisors /3/ and should be excluded from
the bargaining unit. Of these, the record establishes that Harris
assigns and directs work and has effectively recommended hiring of a
subordinate, and Webb assigns and directs work. Further, the Authority
finds that the above duties are not merely routine or clerical in
nature, but require the consistent exercise of independent judgment.
Accordingly, these incumbents are supervisors within the meaning of
section 7103(a)(10) of the Statute, and shall be excluded from the unit.
The Authority further finds that Humphreys is not a supervisor within
the meaning of section 7103(a)(10) of the Statute since he does not
exercise any of the statutory indicia of supervisory authority. Thus,
he shall remain in the unit.
Further, the record indicates that Sells, Wait, and Cross, supervise
only active duty military personnel. As noted, section 7103(a)(10) of
the Statute defines a "supervisor" as an individual having certain
authority over "employees." Section 7103(a)(2) defines an "employee" for
the purposes of the Statute as an individual "employed in an agency,"
but specifically excludes from that definition "a member of the
uniformed services." The Authority finds that the individuals supervised
by the incumbents are members of the uniformed services and thus are not
"employees" within the meaning of the Statute. /4/ Therefore, the
Authority finds that the above incumbents are not supervisors as defined
in the Statute and shall order that they remain in the unit.
ORDER
IT IS ORDERED that the unit sought to be clarified herein is hereby
clarified by excluding from said unit Mark Harris, Ground Power Support
Systems Mechanic, WG-5378-11, and David R. Webb, Electronics Mechanic,
WG-2614-12.
IT IS FURTHER ORDERED that, with regard to all other job
classifications sought to be excluded herein, the petition be, and it
hereby is, dismissed.
Issued, Washington, D.C., January 20, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Concurring Opinion, Leon B. Applewhaite, Member
I concur with my fellow members regarding the interpretation of
statutory language found in section 7103 of the Statute, and the result
they reach. However, the unique nature of the National Guard
technicians raises a practical concern as to this application of section
7103. In order to be employed as a technician, one must be a member of
the National Guard. In other words, eligibility for the civilian
position is dependent upon military status. Consequently, the
technicians are quasi-military personnel and yet not excluded from
bargaining rights by section 7103(a)(2)(B)(ii). Further, the
technicians are precluded from being classified as supervisors under
section 7103(a)(10) since the military personnel whom they supervise do
not fall within the definition of "employee" set forth in section 7103.
Thus, these personnel who are in actuality supervisors, must be placed
in the bargaining unit.
Strict application of the language of the Statute produces the
foregoing results. However, any relief for the problems which arise
from this application is not within the jurisdictional power of the
Authority. Rather, it is a legislative issue which must be resolved by
congressional action.
Leon B. Applewhaite, Member
--------------- FOOTNOTES$ ---------------
/1/ The name of the labor organization appears as amended at the
hearing.
/2/ The above incumbents are all characterized as small shop chiefs.
/3/ Section 7103(a)(10) of the Statute defines a "supervisor" as:
. . . 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 . . . .
/4/ National Guard Bureau, State of New York, Division of Military
and Naval Affairs, Albany, New York, 9 FLRA No. 2 (1982) and The
Adjutant General, Delaware National Guard, 9 FLRA No. 1 (1982).