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13:0247(42)CU
The decision of the Authority follows:
13 FLRA No. 42
DIVISION OF MILITARY AND NAVAL AFFAIRS
PUBLIC SECURITY BUILDING
STATE CAMPUS, ALBANY, N.Y. 12226
NATIONAL GUARD BUREAU
Activity/Petitioner
and
Case No. 1-CU-44
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
NEW YORK STATE COUNCIL
Labor Organization
DIVISION OF MILITARY AND NAVAL AFFAIRS
PUBLIC SECURITY BUILDING
STATE CAMPUS, ALBANY, N.Y. 12226
NATIONAL GUARD BUREAU
Activity/Petitioner
and
Case No. 1-CU-54
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
NEW YORK STATE COUNCIL
Labor Organization /1/
DECISION AND ORDER CLARIFYING UNIT
Upon petitions duly filed with the Federal Labor Relations Authority
under section 7111(b)(2) of the Federal Service Labor-Management
Relations Statute (the Statute), a consolidated 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 Association of Civilian
Technicians, Inc., New York State Council (ACT) was certified on May 26,
1970 as the exclusive representative for a unit of all Army, Air, Air
Defense and National Guard Technicians and employees in the United
States Property and Fiscal Office located in the State of New York.
Essentially, the petitions seek to clarify the bargaining unit status
of certain employees in three job classifications based on the
Activity/Petitioner's contentions that they are supervisors, management
officials or both. /2/ SUPERVISORS /3/
The Activity/Petitioner contends that Robert J. Lazarus, Military
Personnel Technician, GS-0204-07; Benjamin Wright, Senior Health
Technician, GS-0699-09; Gilford Richardson, Senior Health Technician,
GS-0699-09; Erwin Gerding, Senior Health Technician, GS-0699-09;
Reginald A. Sparks, Senior Health Technician, GS-0699-09; Phillip J.
Banashefsky, Military Personnel Technician, GS-0204-07; Kenneth J.
Clouthier, Security Officer, GS-0080-09; Joseph T. Caldara, Security
Officer, GS-0080-09; and Richard N. Mueller, Security Officer,
GS-0080-09 are supervisors. Of these, the record establishes that
Lazarus and Sparks assign and direct work and have effectively
recommended hiring of and promotions for subordinates; that Wright
assigns and directs work for subordinates; that Richardson assigns and
directs work, and has disciplined and effectively recommended the hiring
of and promotions for subordinates; and that Gerding assigns and
directs work and has hired subordinates. 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 employees 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 Banashefsky, Clouthier, Caldara and
Mueller do not fall within the meaning of section 7103(a)(10) in that
they do not supervise "employees" as defined under the Statute. Section
7103(a)(2) defines a "employee" for the purposes of the Statute as an
individual "employed in an agency" and specifically excludes from that
definition "a member of the uniformed services." Accordingly, as
Banashefsky supervises only active duty military personnel he is not a
supervisor within the meaning of the Statute. /4/ Further, the
Authority finds that those individuals supervised by Clouthier, Caldara
and Mueller are not "employees employed by an agency" within the meaning
of section 7103(a)(2) of the Statute in that they are employed by the
State of New York who pays their salaries, fringe benefits and under
whose laws they are protected. /5/ Therefore, the Authority finds that
the above individuals are not supervisors as defined in the Statute and
shall order that they remain in the unit. MANAGEMENT OFFICIALS /6/
The Activity/Petitioner contends that Clouthier, Caldara and Mueller
are management officials and should be excluded from the unit in that
they are responsible for the preparation of security plans and security
requirements at their respective bases. In the lead case of Department
of the Navy, Automatic Data Processing Selection Office, 7 FLRA No. 24
(1981), the Authority interpreted the statutory definition of
"management official" 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. Applying these criteria to the instant case, the
Authority finds that the above incumbents are not management officials
and should be included in the unit. The record establishes that these
individuals are highly trained professionals whose actions assist in
implementing as opposed to shaping the Activity's policy. While these
individuals, under the direction of the respective base commanders,
implement, supplement and, on occasion, request modifications of
security requirements for their particular bases, they do so within well
defined guidelines established by Air Force security policy set forth in
Air National Guard Regulation 125-37. Thus, the record is clear that
these incumbents are not management officials in that they do not
exercise any duties or responsibilities which require or authorize them
to formulate, determine, or influence the policies of the Activity
within the meaning of section 7103(a)(11) of the Statute. Accordingly,
the Authority finds that these incumbents should be included in the
bargaining unit.
ORDER
IT IS ORDERED that the unit sought to be clarified herein be, and it
hereby is clarified by excluding from said unit Robert J. Lazarus,
Military Personnel Technician, GS-0204-07; Benjamin Wright, Senior
Health Technician, GS-0699-09; Gilford Richardson, Senior Health
Technician, GS-0699-09; Erwin Gerding, Senior Health Technician,
GS-0699-09; and Reginald A. Sparks, Senior Health Technician,
GS-0699-09 and by including in said unit Phillip J. Banashefsky,
Military Personnel Technician, GS-0204-07; Kenneth J. Clouthier,
Security Officer, GS-0080-09; Joseph T. Caldara, Security Officer,
GS-0080-09; and Richard N. Mueller, Security Officer, GS-0080-09.
Issued, Washington, D.C., September 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The names appear as amended at the hearing.
/2/ At the hearing, the parties stipulated that Donald N. Harvey,
Security Officer, GS-0080-09 was a supervisor and should be excluded
from the unit; and that Samuel P. Jones, Military Personnel Technician,
GS-0204-07 had returned to active military duty and should be deleted
from consideration. These stipulations are deemed motions to amend the
petitions and are hereby granted. Accordingly, these positions will not
be considered herein.
/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).
/5/ Cf. Long Beach Veterans Administration Medical Center, Long
Beach, California, 7 FLRA No. 66 at p. 8 (1981) where the Authority
found that the house staff who are assigned to the Activity and who are
paid stipends from non-agency sources are not employees of the Activity
within the meaning of the Statute.
/6/ Section 7103(a)(11) of the Statute defines a "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 .
. . .