34:0407(74)CU - DEFENSE MAPPING AGENCY, HYDROGRAPHIC/TOPOGRAPHIC CENTER LOUISVILLE OFFICE, LOUISVILLE, KENTUCKY and LOCAL 1482, NFFE -- 1990 FLRAdec CU

 34 FLRA NO. 74
                  


                    DEFENSE MAPPING AGENCY
                HYDROGRAPHIC/TOPOGRAPHIC CENTER
                       LOUISVILLE OFFICE
                     LOUISVILLE, KENTUCKY
                          (Activity)

                              and

     LOCAL 1482, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
                (Labor Organization/Petitioner)

                          4-CU-80021

		ORDER GRANTING APPLICATION FOR REVIEW

   		         January 19, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This case is before the Authority on an application for
review filed by the Defense Mapping Agency,
Hydrographic/Topographic Center, Louisville Office, Louisville,
Kentucky (the Activity) under section 2422.17(a) of the
Authority's Rules and Regulations. The Activity seeks review of
the Acting Regional Director's Decision and Order on a Petition
for Clarification of Unit filed by Local 1482, National
Federation of Federal Employees (the Union) under section 7111(b)
of the Federal Service Labor - Management Relations Statute (the
Statute). The Union has filed an opposition to the application
for review.

     Through its petition, the Union sought to clarify the
bargaining unit status of approximately thirty GS-1370-11
Cartographer Project Leaders and GS-1370-12 Cartographer Project
Directors. On May 12, 1989, the Acting Regional Director issued a
Decision and Order finding that the Cartographer Project Leaders
and Cartographer Project Directors should be included in the
bargaining unit. 

     Inasmuch as the Authority had two vacancies when this
application for review was received, Acting Chairman McKee issued
an Interim Order on September 6, 1989, directing that
consideration of the application be deferred until further
notice. This interim order preserved the parties' rights under
the Statute to Authority consideration of the Acting Regional
Director's decision.

     The Authority now considers the Activity's application for
review. For the reasons set forth below, we grant the
application.

II. Background and Acting Regional Director's Decision

     In 1969, the Activity granted the Union recognition for a
unit of nonprofessional employees. In 1979, the Union filed a
petition in Case No. 4-RO-13 seeking an election to determine
whether professional employees should be included in the existing
unit. An election was held, and the Regional Director thereafter
issued a "Certification for Inclusion In Existing Unit"
certifying the Union as the exclusive representative of a unit
including professional and nonprofessional employees.

     On May 5, 1982, the Union filed a clarification of unit
petition to include in the unit certain Cartographers,
GS-1370-11, who occupied positions as "Project Leaders." On May
20, 1982, the Regional Director, after reviewing the
certification issued in Case No. 4-RO-13, issued a "Corrected
Certification for Inclusion In Existing Unit" that excluded
"Project Leaders" from the certified unit. The Regional Director
stated that "the category of 'Project Leaders' had been
inadvertently omitted from the exclusions section of the
Certified Unit description." Joint Exhibit 6. Thereafter, the
Union withdrew its petition for clarification of unit.

     The unit described in the "Corrected Certification for
Inclusion In Existing Unit" is as follows:

     Inclusions: All professional and nonprofessional employees
of the Defense Mapping Agency, Hydrographic/Topographic Center,
Louisville Office, Louisville, Kentucky.

     Exclusions: Project leaders, employees engaged in personnel
work in other than a purely clerical capacity, and management
officials, confidential employees, and supervisors as
defined in the Statute.

     Joint Exhibit 6 (emphasis added).

     On September 8, 1988, the Union filed a clarification of
unit petition through which it sought to include Cartographer
Project Leaders and Cartographer Project Directors in the unit.
Before the Acting Regional Director, the Union argued that the
Cartographers are neither supervisors nor management officials.
The Union contended that the GS-11 Cartographer Project Leaders
are first-level quality assurance personnel and the GS-12
Cartographer Project Directors are engaged principally in quality
control and coordination of servicing.

     The Activity contended that "the Project Leaders have been
excluded (from the unit) by mutual agreement." Acting Regional
Director's Decision at 3 n.2. The Activity also asserted that the
Project Leaders should be excluded from the unit because they:
(1) are supervisors and/or management officials within the
meaning of the Statute; and (2) do not share a community of
interest with the employees in the bargaining unit. With respect
to the Project Directors, the Activity contended that they should
be excluded from the unit because they: (1) were management
officials; and (2) do not share a community of interest with the
employees in the bargaining unit.

     The Acting Regional Director found that neither the
Cartographer Project Leaders nor the Cartographer Project
Directors are management officials within the meaning of section
7103(a)(11) of the Statute. The Acting Regional Director found
that the incumbents of those positions do not exercise any duties
or responsibilities which require or authorize them to formulate,
determine, or influence the policies of the Activity. She found
that these employees are highly trained professionals who assist
in implementing, as opposed to shaping, the Activity's policies
and are responsible for accomplishing project objectives within
guidelines established by the Activity. The Acting Regional
Director concluded that "no circumstances exist which would
warrant excluding the incumbents based on a conflict or apparent
conflict of interest or due to any managerial functions."
Decision at 7.

     The Acting Regional Director also determined that the
Project Leaders are not supervisors within the meaning of section
7103(a)(10) of the Statute. She found that the Project Leaders'
authority to direct employees assigned to a project is
limited to the technical aspects of the project. She also found
that questions with respect to discipline, overtime, staffing of
projects or assignments, performance appraisals, or employee
grievances are not within the Project Leaders' discretion.

     The Acting Regional Director also found, in accordance with
the requirements of section 7112(a)(1) of the Statute, that the
Cartographer Project Leaders and Cartographer Project Directors
share a clear and identifiable community of interest with the
other employees in the existing unit and their inclusion in the
unit will promote effective dealings with, and efficiency of, the
Activity's operations.

     With respect to the Activity's contention that the Project
Leaders have been excluded from the unit by mutual agreement, the
Acting Regional Director stated as follows:

     At the time of the professional election in 1979, these
Cartographers were not eligible to vote in the representation
proceedings. I reject the contention that I am bound to accept as
determinative in this case any agreement by the parties
concerning the exclusion of employees from the bargaining unit.
In making decisions involving appropriate units and eligibility,
the Authority will resolve such matters based upon evidence which
reflects the actual duties as performed by the incumbents.
Department of the Treasury, Bureau of the Mint, U.S. Mint,
Denver, Colorado, (6) FLRA  52 (1981).

     Decision at 3 n.2.

     Accordingly, based on the above findings, the Acting
Regional Director included the Cartographer Project Directors and
Cartographer Project Leaders in the bargaining unit represented
by the Union.

III. Application for Review

     The Activity seeks review only of the Acting Regional
Director's determination that Project Leaders should be included
in the unit. The Activity contends that this determination raises
substantial questions of law or policy because: (1) the Acting
Regional Director departed from Authority precedent in
determining the supervisory status of Project Leaders; (2) there
is a lack of Authority precedent to determine whether the
inclusion of Project Leaders in the unit would constitute a
conflict of interest between the performance of their
officially assigned duties and their rights as members of the
bargaining unit; and (3) there is a lack of Authority precedent
to determine "if a significant number of employees, previously
excluded from the bargaining unit by mutual consent of the
parties and approved by the Authority, should be included in the
bargaining unit without benefit of a representation election."
Application at 1.

     The Activity also seeks review on the ground that the Acting
Regional Director's decision on the "substantial factual issue of
whether the Project Leaders are supervisors" within the meaning
of the Statute was clearly erroneous and that this error
prejudices the Activity's rights. Id.

IV. Union's Opposition

     The Union contends that the exclusion of the Project Leaders
from the certified bargaining unit in 1982 "was not done
voluntarily or at the urging of the Union but because of the
corrected certification issued by the FLRA"  on May 20, 1982.
Union's Opposition at 2. The Union also contends that the
application for review should be denied because the Activity is
merely attempting to relitigate the same issues raised before the
Acting Regional Director. The Union asserts that the Acting
Regional Director's decision is free from prejudicial error and
that the Activity has failed to demonstrate that the Project
Leaders are supervisors or management officials.

V. Discussion

     We conclude that the Activity has established that
compelling reasons exist for granting the application for review
pursuant to the provisions of section 2422.17(c)(1) of our Rules
and Regulations. Specifically, it appears that substantial
questions of law or policy are raised because of the absence of,
or departure from, Authority precedent with respect to:

     Whether a petition for clarification of unit seeking to
include in a unit, without an election, employees in positions
which have been previously specifically excluded from a certified
bargaining unit under the circumstances presented in this case,
is a permissible process for seeking to add those employees to a
unit.

     See U.S. Department of Agriculture, United States Forest
Service, Angeles National Forest, Pasadena, California, 4 A/SLMR
58 (1974). 

     If it is determined that the Acting Regional Director was
correct in processing the Union's petition for clarification of
unit as to Cartographer Project Leaders, we will address the
remaining issues raised by the Activity's application for
review.

VI. Order

     For the reasons discussed above. we grant the application
for review. In accordance with section 2422.17(g) of the
Authority's Rules and Regulations, the parties may submit briefs
within 10 days after issuance of this Order. Such briefs shall be
limited to the issue found meritorious for review. Briefs should
be directed to:

                   Ms. Alicia Columna
                   Case Control Office
                   Federal Labor Relations Authority
                   500 C Street, SW.