[ v12 p137 ]
12:0137(34)RO
The decision of the Authority follows:
12 FLRA No. 34
MERIT SYSTEMS PROTECTION BOARD
Agency
and
MERIT SYSTEMS PROTECTION BOARD
PROFESSIONAL ASSOCIATION
Petitioner
Case No. 3-RO-103
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed with the Federal Labor Relations Authority
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, the Authority makes the
following findings: The MSPBPA (the Union) seeks to represent an
agency-wide unit consisting of all professional employees of the Merit
Systems Protection Board (the Board) in the GS-905 and GS-930
classification series, excluding all other professional employees,
non-professional employees, management officials, supervisors, and
employees described in section 7112(b)(2), (3), (4), (6) and (7) of the
Statute. /1/ The Union currently represents a unit within the Board's
Office of Appeals described as consisting of all attorneys and appeals
officers in the GS-905 and GS-930 series, /2/ respectively. In the
instant petition, the Union seeks to represent employees in its current
unit plus similarly classified employees in the Board's Office of the
General Counsel and Regional Offices. The Agency contends that
employees of the three organizational components do not share a
community of interest as required by section 7112(a)(1) of the Statute.
/3/ It asserts that inclusion of Office of Appeals employees with
Regional Office attorneys would convey an appearance of a conflict of
interest because Appeals Office employees review decisions issued by the
Regional Offices. The Agency contends that attorneys within the Office
of the General Counsel should not be included in any event because they
are management officials within the meaning of section 7103(a)(11) of
the Statute. /4/
The Board was created by the Civil Service Reform Act of 1978 to
exercise appellate jurisdiction over cases involving Federal employees
who have been the subject of adverse actions. The Board also has
original jurisdiction over cases in which no formal agency action has
been taken, such as adverse actions against administrative law judges.
The Board has approximately 350 employees. The Chair of the Board
has delegated administrative authority to the Managing Director for the
Board's day-to-day operations. The Managing Director thus has
supervisory authority over the Agency's employees.
Organizationally, the Board is composed of a National Headquarters
Office in Washington, D.C., and eleven regional offices. The Office of
Appeals and the Office of the General Counsel are organizational
components located at the National Headquarters. Each regional office
is under the general authority of a regional director. The proposed
unit members in each region are classified as Attorney-Examiners, series
GS-905, who conduct administrative hearings, establish records of those
proceedings, and issue initial decisions on the merits. The employees
in the Office of Appeals sought herein include two classifications:
General Attorneys, series GS-905, who process petitions for review of
initial decisions drafted by the attorney-examiners within the Board's
regional offices and recommend whether such petitions should be granted;
and Appeals Officers, series GS-930. /5/ Each Appeals attorney in the
GS-905 series works under the supervision of a team leader who reviews
the attorney's work for conformance to agency policy and standards.
The employees in the Office of the General Counsel sought herein are
classified as Trial Attorneys (General), series GS-905. They make
recommendations to the Board members on a variety of subjects including
advisory opinions on novel and complex issues relating to the Agency's
adjudicating authority. Each is responsible to a supervising attorney
for form and content of work products.
In regard to the Agency's contention that the General Counsel
attorneys should be excluded from the unit because they are management
officials within the meaning of section 7103(a)(11) of the Statute, /6/
it is alleged that these employees are required to exercise independent
judgment on a wide variety of complex and novel issues, and as a result
they influence the establishment of Agency policy such as the Board's
standard of Conduct. In the lead case of Department of the Navy,
Automatic Data Processing Selection Office, 7 FLRA No. 24 (1981), the
Authority interpreted the definition of management official in section
7103(a)(11) to include 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 record reveals that although these attorneys provide legal
advice and recommendations on various policy issues to the Board, their
work is directed by a superior and their recommendations are reviewed as
those of experts or professionals rather than those of management
officials who formulate, determine, or influence agency policy. Thus,
it is concluded that these employees are not management officials within
the meaning of the Statute.
The Authority also finds that a unit of all GS-905 series employees
of the Agency is appropriate for exclusive recognition under section
7112(a)(1) of the Statute. In the first place, the employees sought
share a clear and identifiable community of interest. Thus, they are
all subject to the same uniform personnel policies, practices and
directives, which are administered at the Board's National Headquarters.
The parties stipulated that the proposed unit members are subject to
the same policies on overtime, employee grievance procedure, part-time
employment, transfer and separation. All of the Board's offices are
under the overall supervision of the Managing Director. In addition,
the record shows that some transfer and interchange have occurred.
Thus, there has been permanent transfer of attorneys among the Office of
Appeals, the Regional Offices and the Office of the General Counsel.
Further, the record shows that the Board has an Attorney Developmental
Reassignment Program which encourages attorneys to apply voluntarily for
temporary reassignment to other offices within the Agency. /7/
The Authority further concludes that the proposed unit would promote
effective dealings and efficiency of agency operations. In this regard,
it is noted particularly that the personnel policies and practices of
the Board are centrally established and uniformly administered at its
headquarters. See Naval Sea Support Center, Atlantic Detachment, 7 FLRA
No. 99 (1982).
Based upon the foregoing, the Authority finds that the following unit
is appropriate for the purpose of exclusive recognition within the
meaning of section 7112 of the Statute:
All professional employees of the Merit Systems Protection
Board in the classification series designation of GS-905,
Nationwide, in the Office of General Counsel, the Office of
Appeals, and Regional Offices, excluding all other professional
employees, nonprofessional employees, management officials,
supervisors, and employees described in section 7112(b)(2), (3),
(4), (6), and (7) of the Statute.
DIRECTION OF ELECTION /8/
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 Merit
Systems Protection Board Professional Association. Issued, Washington,
D.C., June 7, 1983.
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7112(b)(2), (3), (4), (6) and (7) provides in pertinent
part:
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--
. . . .
(2) a confidential employee;
(3) an employee engaged in personnel work in other than a
purely clerical capacity;
(4) an employee engaged in administering the provisions of this
chapter;
. . . .
(6) any employee engaged in intelligence, counterintelligence,
investigative, or security work which directly affects national
security; or
(7) any employee primarily engaged in investigation or audit
functions relating to the work of individuals employed by an
agency whose duties directly affect the internal security of the
agency, but only if the functions are undertaken to ensure that
the duties are discharged honestly and with integrity.
/2/ The record indicates that, at the time of the hearing, employees
in the GS-930 series were in the process of being "phased out." In view
of the foregoing, the Authority will not consider these positions in
determining the appropriateness of the unit sought herein.
/3/ Section 7112(a)(1) provides:
Sec. 7112. Determination of appropriate units for labor
organization representation
(a)(1) The Authority shall determine . . . any unit to be an
appropriate unit only if the determination will ensure a clear and
identifiable community of interest among the employees in the unit
and will promote effective dealings with, and efficiency of the
operations of, the agency involved.
/4/ Section 7103(a)(11) provides:
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(.)
/5/ As previously indicated, the Appeals Officers in the GS-930
series have been phased out.
/6/ Note 4, supra.
/7/ The Agency's contention that an appearance of a conflict of
interest would arise if Appeals Office employees were in a unit with
Regional Office attorneys is not persuasive. Thus, the Agency itself
notes, in its statement of position entitled "Agency Response" dated May
13, 1981, that such an appearance of conflict would only occur to
parties which might not understand the basis for the Board's own belief
that the attorneys involved "can be expected to function with no hint or
suggestion of a conflict of interest." Any such appearance of a conflict
of interest is further dispelled by knowledge of the process by which
Agency management reviews the work product of Appeals Office employees.
/8/ Inasmuch as the unit found appropriate herein is different from
that sought by the Petitioner in that no GS-930 series employees can be
included, if the Petitioner does not desire to proceed to an election in
the unit found appropriate, it may withdraw its petition. The
withdrawal must be in writing and must be received by the appropriate
Regional Director not later than 10 days after the issuance of this
Decision.