Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Central Region (Activity-Petitioner) and National Weather Service Employees Organization, MEBA, AFL-CIO (Labor Organization)  

 2 FLRA No. 47
 
 DEPARTMENT OF COMMERCE,
 NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
 NATIONAL WEATHER SERVICE, CENTRAL REGION
 Activity-Petitioner
 
 and
 
 NATIONAL WEATHER SERVICE EMPLOYEES
 ORGANIZATION, MEBA, AFL-CIO
 Labor Organization
 
                                            Assistant Secretary
                                            Case No. 60-5982(CU)
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    UPON A PETITION FOR CLARIFICATION OF UNIT DULY FILED UNDER SECTION 6
 OF EXECUTIVE ORDER 11491, AS AMENDED, A HEARING WAS HELD BEFORE HEARING
 OFFICER CHARLES A. FLEMING ON APRIL 24, 25 AND 26, 1979.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, IN A
 MATTER SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER
 SECTION 304 OF REORGANIZATION PLAN NO. 2 OF 1978(43 F.R. 36040), WHICH
 TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE
 AUTHORITY'S RULES AND REGULATIONS (44 F.R. 44741, JULY 30, 1979).  THE
 AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE
 FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE HEARING OFFICER MADE AT THE HEARING AND
 FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY BOTH
 PARTIES, THE AUTHORITY FINDS:  /1/
 
    THE ACTIVITY FILED A PETITION FOR CLARIFICATION OF UNIT (CU) SEEKING
 TO EXCLUDE APPROXIMATELY 57 SUPERVISORY METEOROLOGISTS, GRADES GS-12, 13
 AND 14, AS SUPERVISORS, AND 8 SECRETARY-STENOGRAPHERS AND
 CLERK-STENOGRAPHERS, GRADES GS-3, 4 AND 5, AS CONFIDENTIAL EMPLOYEES,
 FROM THE UNIT OF EXCLUSIVE RECOGNITION REPRESENTED BY THE NATIONAL
 WEATHER SERVICE EMPLOYEES ORGANIZATION, MEBA, AFL-CIO (WSEO).  /2/ THE
 WSEO CONTENDS THAT THE EMPLOYEES IN THE JOB CLASSIFICATIONS IN QUESTION
 ARE NOT SUPERVISORS OR CONFIDENTIAL EMPLOYEES RESPECTIVELY, AND,
 THEREFORE, REMAIN ELIGIBLE FOR CONTINUED INCLUSION WITHIN ITS UNIT.  AT
 THE HEARING IN THIS MATTER, TESTIMONY WAS TAKEN FROM WITNESSES WHOM THE
 PARTIES STIPULATED WERE TYPICAL AND REPRESENTATIVE OF THE CATEGORIES OF
 EMPLOYEES WHICH THE ACTIVITY HAS PETITIONED TO EXCLUDE.
 
    SUPERVISORY METEOROLOGISTS /3/
 
    THE POSITIONS IN DISPUTE ARE LOCATED IN 8 WEATHER SERVICE FORECAST
 OFFICES AND 1 NATIONAL SEVERE STORMS FORECAST CENTER IN 8 OF THE 14
 STATES OF THE ACTIVITY'S GEOGRAPHICAL JURISDICTION.  EACH OFFICE AND THE
 CENTER PRODUCE WEATHER SERVICE FORECASTS, WARNINGS, AND STATEMENTS, AND
 FUNCTION 24 HOURS A DAY, 7 DAYS A WEEK.
 
    EACH 24-HOUR PERIOD IS DIVIDED INTO DAY, EVENING AND MIDNIGHT
 OPERATIONAL FORECAST SHIFTS.  IN ADDITION, ONE ADMINISTRATIVE SHIFT RUNS
 CONCURRENTLY WITH THE DAY OPERATIONS FORECAST SHIFT.
 
    A METEOROLOGIST-IN-CHARGE (MIC) IS IN CHARGE OF EACH OFFICE /4/ AND
 IS ON DUTY DURING THE ADMINISTRATIVE SHIFT, MONDAY THROUGH FRIDAY.  AN
 AVERAGE OF SIX SUPERVISORY METEOROLOGISTS WORK FOR EACH MIC.  ON
 SCHEDULED ROTATION, THE SUPERVISORY METEOROLOGISTS PERFORM CERTAIN
 NONSUPERVISORY DUTIES DURING THE ADMINISTRATIVE SHIFT.  HOWEVER, FOR A
 PREPONDERANCE OF THEIR DUTY TIME THEY ARE IN CHARGE OF THE THREE
 OPERATIONAL FORECAST SHIFTS.
 
    A SUPERVISORY METEOROLOGIST MAY BE IN CHARGE OF FROM ONE TO TEN
 EMPLOYEES DEPENDING ON THE PARTICULAR OPERATIONAL FORECAST SHIFT.  HE
 TAKES WHATEVER ACTION IS NECESSARY IN ORDER FOR THE OFFICE TO ISSUE
 FORECASTS.  HE PREPARES EITHER THE PUBLIC OR AVIATION FORECASTS HIMSELF
 AND THEN INSURES THAT THE OTHER FORECAST PRODUCTS ARE CONSISTENT
 THEREWITH.  FURTHER, WHEN THERE ARE STAFFING SHORTAGES BECAUSE OF
 UNEXPECTED LEAVE, OR WHEN THERE ARE SEVERE WEATHER CONDITIONS, THE
 SUPERVISORY METEOROLOGIST EXERCISES INDEPENDENT JUDGMENT IN DETERMINING
 THE NUMBER AND TYPE OF EMPLOYEES NECESSARY TO PRODUCE THE APPROPRIATE
 FORECAST PRODUCTS AND INDEPENDENTLY EXERCISES THE AUTHORITY TO MAKE THE
 NECESSARY EMPLOYEE ASSIGNMENTS.  THESE ASSIGNMENTS INCLUDE "HOLD-OVER"
 OVERTIME, "CALL-BACK" OVERTIME, AND REASSIGNMENT OF DUTIES AMONG
 EMPLOYEES ALREADY ON DUTY.  MOREOVER, SUPERVISORY METEOROLOGISTS HAVE
 THE AUTHORITY TO DIRECT HOW EMPLOYEES ACCOMPLISH THEIR FUNCTIONS,
 ALTHOUGH GENERALLY THIS HAS NOT BEEN NECESSARY DUE TO THE ROUTINE AND
 STANDARDIZED NATURE OF THE VARIOUS EMPLOYEES' FUNCTIONS.  SUPERVISORY
 METEOROLOGISTS ROUTINELY GRANT ANNUAL, SICK, AND ADMINISTRATIVE LEAVE
 FOR THE DURATION OF THE OPERATIONAL SHIFT OF WHICH THEY ARE IN CHARGE.
 
    SECTION 2(C) OF THE EXECUTIVE ORDER DEFINES A SUPERVISOR AS AN
 EMPLOYEE WHO HAS AUTHORITY TO TAKE, OR EFFECTIVELY RECOMMEND ACTION IN
 ANY ONE OF SEVERAL ENUMERATED WAYS, INCLUDING TO ASSIGN THE WORK OF
 OTHER EMPLOYEES.  AS THE RECORD ESTABLISHED THAT SUPERVISORY
 METEOROLOGISTS USE INDEPENDENT JUDGMENT IN EXERCISING THE AUTHORITY TO
 ASSIGN THE WORK OF OTHER EMPLOYEES, THE AUTHORITY FINDS THAT THESE
 EMPLOYEES ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
 ORDER.  /5/ ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THEY BE EXCLUDED
 FROM THE EXCLUSIVELY RECOGNIZED UNIT.  /6/
 
    SECRETARY-STENOGRAPHERS AND CLERK-STENOGRAPHERS
 
    THESE CLERICAL EMPLOYEES ARE ALLEGED TO BE CONFIDENTIAL EMPLOYEES
 BECAUSE OF THEIR WORK RELATIONSHIP WITH THE METEOROLOGIST-IN-CHARGE(MIC)
 OF EACH OFFICE.  THE MIC ESTABLISHES WORKING CONDITIONS AND HAS OVERALL
 PERSONNEL AND ADMINISTRATIVE RESPONSIBILITIES FOR HIS OFFICE, INCLUDING
 REVIEW OF EMPLOYEE PERFORMANCE APPRAISALS AND AUTHORITY TO ADJUST FORMAL
 GRIEVANCES.  HE IS THE ONLY OFFICIAL IN AN OFFICE AUTHORIZED TO MEET
 WITH UNION OFFICIALS REGARDING WORKING CONDITIONS, WHICH IN THE PAST
 HAVE INCLUDED DISCUSSIONS REGARDING SHIFT SCHEDULING.  ALSO, MICS HAVE
 BEEN CONSULTED BY THE ACTIVITY REGARDING PROPOSED COLLECTIVE BARGAINING
 AGREEMENT PROVISIONS.
 
    EACH MIC IS ASSIGNED AS HIS ONLY CLERICAL ONE OF THE EMPLOYEES IN
 QUESTION.  EACH OF THESE CLERICALS MAINTAINS A RECORD OF PERSONNEL
 ACTIONS AND STATISTICAL INFORMATION ON EMPLOYEES, SUCH AS LEAVE
 BALANCES, AND TYPES OF THE MIC'S CORRESPONDENCE, REQUEST FOR PROMOTIONS,
 RECOMMENDATIONS FOR AWARDS, FORMS FOR OUTSTANDING PERFORMANCE RATINGS,
 AND LETTERS OF COMMENDATION.  ALL MAIL COMING TO THE MIC GOES THROUGH
 THE CLERICAL EMPLOYEE, WHO GENERALLY HAS ACCESS TO ALL FILES TO WHICH
 THE MICS HAVE ACCESS, INCLUDING MATERIALS IN SAFES AND, IN SOME
 INSTANCES, CONFIDENTIAL LABOR RELATIONS MATERIAL.  ON CERTAIN OCCASIONS
 MICS HAVE DISCUSSED WITH THESE EMPLOYEES THE PERFORMANCE AND CONDUCT OF
 OTHER EMPLOYEES.
 
    UNDER THESE CIRCUMSTANCES, IT IS CONCLUDED THAT
 SECRETARY-STENOGRAPHERS AND CLERK-STENOGRAPHERS TO THE MICS ACT IN A
 CONFIDENTIAL CAPACITY TO AN OFFICIAL INVOLVED IN THE FORMULATION AND
 EFFECTUATION OF THE ACTIVITY'S LABOR RELATIONS POLICIES.  /7/
 ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THEY BE EXCLUDED FROM THE
 EXCLUSIVELY RECOGNIZED UNIT ON THE BASIS OF CONFIDENTIAL STATUS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
 WHICH THE NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION, MEBA,
 AFL-CIO, WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE ON NOVEMBER 20,
 1978, BE, AND IT HEREBY IS, CLARIFIED BY EXCLUDING FROM THE UNIT
 SUPERVISORY METEOROLOGISTS, GRADES GS-12, 13 AND 14, AND
 SECRETARY-STENOGRAPHERS AND CLERK-STENOGRAPHERS, GRADES GS-4 AND 5, /8/
 WHO WORK DIRECTLY FOR METEOROLOGISTS-IN-CHARGE.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 31, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978(92 STAT, 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ AS MODIFIED ON NOVEMBER 20, 1978, AS A RESULT OF AN ELECTION HELD
 PURSUANT TO ASSISTANT SECRETARY CASE NO. 60-5938(RO), THE WSEO HOLDS
 EXCLUSIVE RECOGNITION FOR A UNIT OF ALL PROFESSIONAL AND
 NON-PROFESSIONAL EMPLOYEES OF THE NATIONAL WEATHER SERVICE CENTRAL
 REGION, INCLUDING THOSE ASSIGNED TO THE REGIONAL HEADQUARTERS, EXCEPT
 THE FOLLOWING:
 
    1.  ALL EMPLOYEES OF THE WEATHER SERVICE FORECAST OFFICES IN
 MINNEAPOLIS, MINNESOTA, OMAHA, NEBRASKA, CHICAGO, ILLINOIS, AND DES
 MOINES, IOWA.
 
    2.  ALL EMPLOYEES OF THE WEATHER SERVICE OFFICES IN FARGO, NORTH
 DAKOTA, SOUTH BEND, INDIANA, O'HARA INTERNATIONAL AIRPORT, CHICAGO,
 ILLINOIS, MIDWAY AIRPORT, CHICAGO, ILLINOIS, AND LINCOLN, NEBRASKA.
 
    3.  ALL PROFESSIONAL EMPLOYEES AT THE WEATHER SERVICE FORECAST OFFICE
 IN SIOUX FALLS, SOUTH DAKOTA, AND THE WEATHER SERVICE OFFICE IN RAPID
 CITY, SOUTH DAKOTA.
 
    4.  ALL NON-PROFESSIONAL EMPLOYEES AT THE WEATHER SERVICE FORECAST
 OFFICE IN BISMARK, NORTH DAKOTA.
 
    5.  ALL GUARDS.
 
    /3/ POSITION DESCRIPTIONS AND JOB TITLES OF THE EMPLOYEES HEREIN
 ALLEGED TO BE SUPERVISORS WERE CHANGED FROM "LEAD FORECASTER" TO
 "SUPERVISORY METEOROLOGIST" IN AUGUST OF 1978.
 
    /4/ A DIRECTOR AND DEPUTY DIRECTOR ARE IN CHARGE OF THE NATIONAL
 SEVERE STORMS FORECAST CENTER.  OTHERWISE, THE FINDINGS REGARDING THE
 SUPERVISORY METEOROLOGISTS AT THE OFFICE LEVEL OF OPERATIONS ALSO APPLY
 TO THE SUPERVISORY METEOROLOGISTS WORKING IN THE NATIONAL SEVERE STORM
 FORECAST CENTER.
 
    /5/ SEE U.S. ARMY CORPS OF ENGINEERS, 7 A/SLMR 283, A/SLMR NO.
 819(1977).
 
    /6/ IN VIEW OF THIS DISPOSITION, THE AUTHORITY FINDS IT UNNECESSARY
 TO PASS ON WHETHER SUPERVISORY METEOROLOGISTS ARE MANAGEMENT OFFICIALS,
 AN ISSUE WHICH WAS RAISED FOR THE FIRST TIME IN THE
 ACTIVITY-PETITIONER'S BRIEF TO THE AUTHORITY.
 
    /7/ ALTHOUGH CONFIDENTIAL EMPLOYEES ARE NOT SPECIFICALLY BARRED BY
 SECTION 10(B ) OF THE ORDER FROM BEING INCLUDED WITH OTHER EMPLOYEES IN
 AN APPROPRIATE UNIT, THE ASSISTANT SECRETARY DETERMINED THAT IT WOULD
 BEST EFFECTUATE THE POLICIES OF THE ORDER TO EXCLUDE FROM BARGAINING
 UNITS EMPLOYEES WHO ASSIST AND ACT IN A CONFIDENTIAL CAPACITY TO PERSONS
 WHO FORMULATE AND EFFECTUATE MANAGEMENT'S LABOR RELATIONS POLICY.
 VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH BATTALION, 111TH ARTILLERY, 1
 A/SLMR 332, 335, A/SLMR NO. 69(1971).
 
    /8/ THE RECORD REVEALS THAT THERE ARE NO EMPLOYEES IN THIS CATEGORY
 AT GRADE GS-3 CURRENTLY EMPLOYED BY THE ACTIVITY.  UNDER SUCH
 CIRCUMSTANCES, THE AUTHORITY FINDS THAT IT WOULD NOT EFFECTUATE THE
 PURPOSES AND POLICIES OF THE ORDER TO CLARIFY A UNIT IN THE ABSENCE OF
 FACTS RELATING TO ACTUAL EMPLOYEES.  ACCORDINGLY, THE SUBJECT PETITION,
 INSOFAR AS IT SEEKS TO CLARIFY THE UNIT STATUS OF GRADE GS-3
 SECRETARY-STENOGRAPHERS AND CLERK-STENOGRAPHERS, IS HEREBY DISMISSED.