09:0973(136)CU - EEOC and National Council of EEOC Locals, 2l6, AFGE -- 1982 FLRAdec RP

 9 FLRA No. 136
 
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 Activity
 
 and
 
 NATIONAL COUNCIL OF EEOC LOCALS, 216,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
 AFL-CIO
 Petitioner
 
                                            Case No. 3-CU-52
 
                    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 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 NATIONAL COUNCIL OF EEOC
 LOCALS, 216, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE)
 WAS CERTIFIED ON APRIL 20, 1978 AS THE EXCLUSIVE BARGAINING
 REPRESENTATIVE FOR A UNIT OF ALL NON-PROFESSIONAL AND PROFESSIONAL
 GENERAL SCHEDULE, SCHEDULE A AND WAGE GRADE EMPLOYEES OF THE EQUAL
 EMPLOYMENT OPPORTUNITY COMMISSION.  ESSENTIALLY, AFGE'S PETITION SEEKS
 TO CLARIFY THE STATUS OF APPROXIMATELY 108 EMPLOYEES WHO THE ACTIVITY
 CONTENDS SHOULD BE EXCLUDED FROM THE BARGAINING UNIT UNDER SECTION
 7112(B) OF THE STATUTE ON THE GROUNDS THAT THEY ARE SUPERVISORS,
 MANAGEMENT OFFICIALS, OR EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
 OTHER THAN A PURELY CLERICAL CAPACITY.
 
                              SUPERVISORS /1/
 
    THE AUTHORITY FINDS, IN AGREEMENT WITH THE ACTIVITY, THAT THE
 INCUMBENTS IN THE FOLLOWING JOB CLASSIFICATIONS ARE SUPERVISORS WITHIN
 THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE:  THE INCUMBENT IN THE
 JOB CLASSIFICATION LEAD APPEALS OFFICER, GS-930-15, WHO ASSIGNS WORK TO
 HIS SUBORDINATES, DISCIPLINES SUBORDINATES AND HAS EFFECTIVELY
 RECOMMENDED THE HIRING OF, AND PROMOTIONS FOR, HIS SUBORDINATES;  THE
 INCUMBENTS IN THE JOB CLASSIFICATION OF GENERAL ATTORNEY (TEAM LEADER),
 GS-905-14, WHO ASSIGN WORK TO THEIR SUBORDINATES, DISCIPLINE
 SUBORDINATES AND HAVE EFFECTIVELY RECOMMENDED SUBORDINATES FOR
 PROMOTIONS;  THE INCUMBENTS IN THE JOB CLASSIFICATION OF ATTORNEY
 EXAMINER (SENIOR ATTORNEY), GS-905-13, WHO ASSIGN WORK TO THEIR
 SUBORDINATES, ADJUST GRIEVANCES, DISCIPLINE SUBORDINATES AND HAVE
 EFFECTIVELY RECOMMENDED THE HIRING OF, AND PROMOTIONS FOR, THEIR
 SUBORDINATES;  THE INCUMBENT IN THE JOB CLASSIFICATION OF PERSONNEL
 RESEARCH PSYCHOLOGIST, GS-180-15, WHO ASSIGNS WORK TO SUBORDINATES AND
 HAS EFFECTIVELY RECOMMENDED THE HIRING OF, AS WELL AS AWARDS FOR,
 SUBORDINATES;  AND THE INCUMBENT IN THE JOB CLASSIFICATION OF EQUAL
 OPPORTUNITY SPECIALIST, GS-160-14, P.D.H.-0370, WHO ASSIGNS WORK TO
 SUBORDINATES, ADJUSTS GRIEVANCES AND HAS EFFECTIVELY RECOMMENDED THE
 HIRING OF 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, THE AUTHORITY
 SHALL ORDER THAT THE INCUMBENTS IN THE JOB CLASSIFICATIONS LISTED ABOVE
 BE EXCLUDED FROM THE RECOGNIZED BARGAINING UNIT.  /2/
 
                         MANAGEMENT OFFICIALS /3/
 
    THE AUTHORITY FINDS, IN AGREEMENT WITH THE PETITIONER, THAT THE
 INCUMBENTS IN THE JOB CLASSIFICATIONS LISTED IN APPENDIX A ARE NOT
 MANAGEMENT OFFICIALS WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE
 STATUTE AND SHOULD REMAIN IN THE BARGAINING UNIT.  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 ONLY 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 INCUMBENTS IN THE JOB
 CLASSIFICATIONS LISTED IN APPENDIX A ARE PROFESSIONALS WHOSE ACTIONS
 ASSIST IN IMPLEMENTING, AS OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES.
 THUS, THE RECORD IS CLEAR THAT THESE INCUMBENTS ARE NOT MANAGEMENT
 OFFICIALS IN THAT THEY DO NOT EXERCISE ANY DUTIES AND 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 AS INTERPRETED BY THE AUTHORITY.  ACCORDINGLY, THE
 AUTHORITY SHALL ORDER THAT THE INCUMBENTS IN THE JOB CLASSIFICATIONS
 LISTED IN APPENDIX A REMAIN IN THE BARGAINING UNIT.
 
        EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
 
                         PURELY CLERICAL CAPACITY
 
    THE AUTHORITY FINDS, IN AGREEMENT WITH THE PETITIONER, THAT THE
 INCUMBENTS IN THE JOB CLASSIFICATIONS LISTED IN APPENDIX B ARE NOT
 EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
 CLERICAL CAPACITY WITHIN THE MEANING OF SECTION 7112(B)(3) OF THE
 STATUTE AND SHOULD REMAIN IN THE BARGAINING UNIT.  THE RECORD
 ESTABLISHES THAT THESE EMPLOYEES, WITH THE MINOR EXCEPTIONS DISCUSSED
 BELOW, ARE NOT AT ALL INVOLVED IN DOING THE ACTIVITY'S INTERNAL
 PERSONNEL WORK BUT PURSUANT TO THE MISSION OF THE ACTIVITY ARE HEARING
 COMPLAINTS, AND/OR WRITING OR REVIEWING DECISIONS WHICH AFFECT AGENCIES
 OTHER THAN THEIR OWN.  THUS, FOR THE REASONS MORE FULLY SET FORTH IN
 OFFICE OF PERSONNEL MANAGEMENT, 5 FLRA NO. 30(1981), /4/ THE AUTHORITY
 FINDS THAT SUCH EMPLOYEES ARE NOT INVOLVED IN PERSONNEL WORK WITHIN THE
 MEANING OF SECTION 7112(B)(3) OF THE STATUTE.
 
    THE INCUMBENTS IN THE JOB CLASSIFICATIONS OF APPEALS OFFICER,
 GS-930-11, 12, 13 AND GENERAL ATTORNEY, GS-905-11, 12, 13 LOCATED IN THE
 OFFICE OF REVIEW AND APPEALS (ORA), ARE INVOLVED IN THE PROCESSING OF
 APPEALS FROM FINAL AGENCY EEO DECISIONS.  THEIR DUTIES INCLUDE REVIEW OF
 THE INVESTIGATIVE FILE AND THE PARTIES' POSITIONS, EVALUATION OF THE
 CASE WITH REGARD TO CASE LAW, STATUTE AND REGULATION, AND THE
 PREPARATION OF A PROPOSED DECISION WHICH IS REVIEWED AT SEVERAL LEVELS
 BEFORE BEING SIGNED BY THE COMMISSIONERS.  IN THE COURSE OF THEIR
 DUTIES, THEY MAY ON RARE OCCASION REVIEW DECISIONS PERTAINING TO
 INTERNAL EEO COMPLAINTS.  THE RECORD INDICATES THAT IN THE NINE-MONTH
 PERIOD PRIOR TO THE HEARING, OF THE APPROXIMATELY 1500 CASES REVIEWED BY
 THE ORA, 6 INVOLVED INTERNAL COMPLAINTS.  THE RECORD FURTHER INDICATES
 THAT THE ABOVE INCUMBENTS WERE ASSIGNED THESE CASES SPORADICALLY AND,
 WHERE ASSIGNED, THESE CASES REPRESENTED ABOUT 1% OF THAT INDIVIDUAL'S
 CASE LOAD.  CONSEQUENTLY, THE AUTHORITY FINDS THAT THIS FUNCTION IS DE
 MINIMIS AND INSUFFICIENT TO EXCLUDE THE INCUMBENTS INVOLVED FROM THE
 BARGAINING UNIT UNDER SECTION 7112(B)(3) OF THE STATUTE.  /5/
 
    ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE INCUMBENTS IN THE JOB
 CLASSIFICATIONS LISTED IN APPENDIX B REMAIN IN THE BARGAINING UNIT.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN BE,
 AND IT IS HEREBY IS, CLARIFIED BY EXCLUDING FROM SAID UNIT THE FOLLOWING
 POSITIONS:  LEAD APPEALS OFFICER, GS-930-15;  GENERAL ATTORNEY, (TEAM
 LEADER), GS-905-14;  ATTORNEY EXAMINER (SENIOR ATTORNEY), GS-905-13;
 PERSONNEL RESEARCH PSYCHOLOGIST, GS-180-15;  AND EQUAL OPPORTUNITY
 SPECIALIST, GS-160-14, P.D.H-0370.
 
    FURTHER, IT IS ORDERED THAT ALL OTHER INCUMBENTS IN THE DISPUTED JOB
 CLASSIFICATIONS SHALL REMAIN IN THE BARGAINING UNIT.
 
    ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                APPENDIX A
 
        JOB CLASSIFICATIONS OF INCUMBENTS ALLEGED TO BE MANAGEMENT
 
                                 OFFICIALS
 
    APPEALS OFFICER, GS-930-13
 
    GENERAL ATTORNEY, GS-905-13
 
    ATTORNEY EXAMINER, GS-905-13
 
    CONGRESSIONAL LIAISON ANALYST, GS-301-13
 
    BUDGET ANALYST, GS-560-13
 
    ATTORNEY ADVISOR (CIVIL RIGHTS), GS-905-14
 
    ATTORNEY ADVISOR (CIVIL RIGHTS), GS-905-13
 
    PROGRAM ANALYST, GS-345-15
 
    COMPUTER SYSTEMS ANALYST, GS-334-14
 
    EQUAL OPPORTUNITY SPECIALIST, GS-160-14
 
    EQUAL OPPORTUNITY SPECIALIST, GS-160-13
 
                                APPENDIX B
 
         JOB CLASSIFICATIONS OF INCUMBENTS ALLEGED TO BE EMPLOYEES
 
         ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
 
                             CLERICAL CAPACITY
 
    APPEALS OFFICER, GS-930-11, 12, 13
 
    GENERAL ATTORNEY, GS-905-11, 12, 13
 
    ATTORNEY EXAMINER, GS-905-13
 
    GENERAL ATTORNEY (FULL JUNIOR HEARING OFFICER), GS-905-12
 
    GENERAL ATTORNEY (JUNIOR HEARING OFFICER), GS-905-11
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 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 . . . .
 
    /2/ IN VIEW OF THIS DETERMINATION, THE AUTHORITY FINDS IT UNNECESSARY
 TO PASS UPON THE ACTIVITY'S ASSERTION THAT THESE INCUMBENTS SHOULD ALSO
 BE EXCLUDED FROM THE RECOGNIZED BARGAINING UNIT ON THE BASIS THAT THEY
 ARE MANAGEMENT OFFICIALS OR EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
 IN OTHER THAN A PURELY CLERICAL CAPACITY.  ACCORDINGLY, THESE JOB
 CLASSIFICATIONS HAVE NOT BEEN LISTED IN APPENDIX A OR B.
 
    /3/ 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 . . . .
 
    /4/ BRIEFLY STATED, THE AUTHORITY HELD IN THIS CASE THAT SECTION
 7112(B)(3) OF THE STATUTE APPLIES ONLY TO EMPLOYEES WHO PERFORM
 "INTERNAL" PERSONNEL WORK, I.E., WORK RELATING DIRECTLY TO THE PERSONNEL
 OPERATIONS OF THE AGENCY EMPLOYING THEM.
 
    /5/ THE DECISION HEREIN, BASED ON RECORD TESTIMONY AS TO THE WORK
 ACTUALLY PERFORMED BY THE INCUMBENTS, IS CLEARLY DISTINGUISHABLE FROM
 OUR DECISION DISMISSING THE PETITION IN UNITED STATES DEPARTMENT OF
 LABOR, OFFICE OF THE SOLICITOR, REGION III, 8 FLRA NO.  68(1982).  IN
 THAT CASE, IT WAS CLEAR THAT THE WORK IN QUESTION WOULD BE PERFORMED BY
 THE EMPLOYEE INVOLVED AND THE RECORD CONTAINED NO EVIDENCE THAT THAT
 FUNCTION WAS MERELY DE MINIMIS.