U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Eastern Region (Activity/Petitioner) and National Weather Service Employees Organization, MEBA, AFL-CIO (Labor Organization)

 



[ v05 p319 ]
05:0319(43)CU
The decision of the Authority follows:


 5 FLRA No. 43
 
 U.S. DEPARTMENT OF COMMERCE,
 NATIONAL OCEANIC AND ATMOSPHERIC
 ADMINISTRATION, NATIONAL WEATHER
 SERVICE, EASTERN REGION
 Activity/Petitioner
 
 and
 
 NATIONAL WEATHER SERVICE EMPLOYEES
 ORGANIZATION, MEBA, AFL-CIO
 Labor Organization
 
                                            Case No. 2-CU-7
 
                    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, 5 U.S.C.  7101-7135, 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.
 /1/
 
    UPON THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING BRIEFS FILED BY
 BOTH PARTIES, THE AUTHORITY FINDS:  THE U.S. DEPARTMENT OF COMMERCE,
 NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL WEATHER
 SERVICE, EASTERN REGION (ACTIVITY) FILED A PETITION FOR CLARIFICATION OF
 UNIT (CU) TO DETERMINE WHETHER OR NOT CERTAIN EMPLOYEES SHOULD BE
 INCLUDED IN THE BARGAINING UNIT OF ITS EMPLOYEES REPRESENTED EXCLUSIVELY
 BY THE NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION, MEBA, AFL-CIO
 (NWSEO).  /2/ SPECIFICALLY, THE ACTIVITY SEEKS TO EXCLUDE FROM THE UNIT
 OF EXCLUSIVE RECOGNITION REPRESENTED BY NWSEO APPROXIMATELY 64 LEAD
 FORECASTERS, GS-12, GS-13, GS-14, ALLEGING THAT THEY ARE SUPERVISORS,
 AND 12 SECRETARY-STENOGRAPHERS, GS-5, ALLEGING THAT THEY ARE
 CONFIDENTIAL EMPLOYEES.  THE NWSEO CONTENDS THAT EMPLOYEES IN THE
 DISPUTED JOB CLASSIFICATIONS ARE NOT SUPERVISORS OR CONFIDENTIAL
 EMPLOYEES RESPECTIVELY, AND REMAIN ELIGIBLE FOR CONTINUED INCLUSION
 WITHIN ITS UNIT.
 
    ORGANIZATIONAL STRUCTURE AND DESCRIPTION OF OPERATIONS
 
    THE NATIONAL WEATHER SERVICE IS A COMPONENT OF THE NATIONAL OCEANIC
 AND ATMOSPHERIC ADMINISTRATION OF THE U.S. DEPARTMENT OF COMMERCE.  THE
 ACTIVITY IS COMPOSED OF SIX REGIONS THROUGHOUT THE COUNTRY, INCLUDING
 THE ACTIVITY.  THE ACTIVITY IS COMPRISED OF TWELVE FORECAST OFFICES, IN
 WHICH ARE EMPLOYED THE LEAD FORECASTERS AND SECRETARY-STENOGRAPHERS
 WHO
 ARE IN THE DISPUTED JOB CLASSIFICATIONS.
 
    FORECAST OFFICES PRODUCE WEATHER SERVICE FORECASTS, WARNINGS AND
 STATEMENTS, AND FUNCTIONS 24 HOURS PER DAY, SEVEN 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 OPERATIONAL FORECAST SHIFT.
 
    THE FORECAST OFFICES ARE FURTHER CLASSIFIED BY "CATEGORY," DEPENDING
 UPON THE SIZE OF THE GEOGRAPHIC AREA COVERED, THE POPULATION SERVED AND
 THE NUMBER OF METEOROLOGICAL PROGRAMS ADMINISTERED.  THE LARGEST
 STATIONS ARE CLASSIFIED AS CATEGORY I STATIONS, THE NEXT TO THE LARGEST
 STATIONS ARE CLASSIFIED AS CATEGORY II STATIONS;  AND, THE SMALLEST
 STATIONS ARE CLASSIFIED AS CATEGORY III STATIONS.
 
    A METEOROLOGIST IN CHARGE (MIC) IS IN CHARGE OF EACH OFFICE AND IN
 SOME INSTANCES IS ASSISTED BY A DEPUTY METEOROLOGIST IN CHARGE (DMIC) OR
 A PRINCIPAL ASSISTANT (PA).  THEY ARE ALL CLASSIFIED AS SUPERVISORS.
 THE MICS, DMICS AND PAS ROUTINELY WORK DURING THE SO-CALLED
 "ADMINISTRATIVE SHIFT," FROM APPROXIMATELY 8:00 A.M. TO 4:30 P.M.,
 MONDAY THROUGH FRIDAY, EXCLUDING HOLIDAYS.  THE MICS AT CATEGORY I AND
 II FORECAST OFFICES ARE CLASSIFIED AS GS-15S, AND THE MICS AT CATEGORY
 III FORECAST OFFICES ARE CLASSIFIED AS GS-14S.  SUCH PERSONNEL HAVE
 THEIR OWN OFFICES WHICH ARE SEPARATE AND APART FROM THE FORECAST AREA,
 WHERE OTHER MEMBERS OF THE FORECAST UNIT WORK.
 
    THE FORECAST UNIT ON A ROUTINE ROTATING EIGHT HOUR SHIFT GENERALLY
 CONSISTS OF ONE LEAD FORECASTER, CLASSIFIED EITHER AS GS-12, GS-13, OR
 GS-14, AND ONE OR TWO JOURNEYMAN FORECASTERS, CLASSIFIED EITHER AS
 GS-11, GS-12, OR GS-13.  THE FORECAST UNIT IS RESPONSIBLE FOR THE
 PREPARATION AND ISSUANCE OF CERTAIN SCHEDULED PERIODIC FORECASTS.  THE
 FORECASTS REQUIRED TO BE ISSUED ON EACH SHIFT, AS WELL AS PROCEDURES FOR
 GATHERING FORECAST MATERIAL, ARE DETAILED IN STATION DUTY MANUALS AND
 DESK BOOKS MAINTAINED BY EACH FORECAST OFFICE.  AT THE BEGINNING OF EACH
 SHIFT, FOLLOWING A TEN OR FIFTEEN MINUTE BRIEFING BY THE FORECASTERS
 BEING RELIEVED FROM THE PREVIOUS SHIFT, THE FORECAST UNIT PREPARES THE
 CURRENT FORECAST PACKAGE BY REVIEWING THE DATA DISPLAYED ON THE STATE
 AND ZONE MAPS, ASSIMILATING AND ANALYZING A CONTINUOUS FLOW OF
 METEOROLOGICAL DATA, TENTATIVELY PLOTTING THE SIGNIFICANT INFORMATION ON
 STATE AND ZONE MAPS, DISCUSSING THEIR METEOROLOGICAL ASSESSMENTS AND
 JUDGMENTS WITH OTHER MEMBERS OF THE FORECAST UNIT ISSUING AND
 TRANSMITTING THE PERIODIC FORECASTS OVER TELETYPE AND RADIO EQUIPMENT.
 BOTH LEAD FORECASTERS AND JOURNEYMAN FORECASTERS ARE INVOLVED IN
 PRECISELY THE SAME DUTIES DURING THE SHIFT.  THE WORK OF ALL EMPLOYEES
 ON THE SHIFT IS DETAILED BY AGENCY MANUALS, AND THE RECORD INDICATES
 THAT THE LEAD FORECASTER IS NOT REQUIRED TO PROVIDE DIRECTION OR
 GUIDANCE BECAUSE OF THE SPECIFICITY OF THE MANUALS.
 
    LEAD FORECASTERS, GS-12, GS-13, GS-14
 
    THE RECORD REVEALS THAT LEAD FORECASTERS EXERCISE LITTLE OR NO
 INDEPENDENT JUDGMENT IN DETERMING THE NUMBER AND TYPES OF EMPLOYEES
 NECESSARY TO PRODUCE THE APPROPRIATE FORECAST PRODUCT, OR MAKING ANY
 REQUIRED EMPLOYEE ASSIGNMENTS.  IT FURTHER REVEALS THAT LEAD FORECASTERS
 DO NOT HAVE THE AUTHORITY TO HIRE OR EFFECTIVELY RECOMMEND THE HIRING OF
 ANY PERSON, TO EFFECTIVELY RECOMMEND THE FURLOUGH OR DISCHARGE OF ANY
 PERSON, TO EFFECTIVELY RECOMMEND THE DISCIPLINE OF ANY PERSONNEL, NOR TO
 GRANT ANNUAL, SICK OR ADMINISTRATIVE LEAVE EXCEPT IN AN EMERGENCY
 OCCURRING DURING A SHIFT.  THE RECORD DISCLOSES AS WELL, THAT THE LEAD
 FORECASTER IS CALLED THE "LEADER" OF HIS PARTICULAR SHIFT SOLELY BECAUSE
 IN THE ABSENCE OF HIS IMMEDIATE SUPERVISOR, I.E., MIC, DMIC OR PA,
 DURING NON-ROUTINE "NORMAL" WORKING HOURS, SUCH FORECASTER IS THE
 HIGHEST GRADE EMPLOYEE ON STATION.  THE AGENCY PROVIDES FOR A SENIOR
 FORECASTER WITH RESPECT TO GRADE ON EACH SHIFT, ASSURING RESPONSIBILITY
 FOR, AND COMPATIBILITY OF, ALL FORECAST MATERIAL PRODUCED BY A TEAM
 EFFORT IN CONFORMITY WITH ESTABLISHED AGENCY GUIDELINES.  HOWEVER, LEAD
 FORECASTERS DO NOT HAVE THE AUTHORITY TO DIRECT HOW EMPLOYEES ACCOMPLISH
 THEIR FUNCTIONS, ESPECIALLY DUE TO THE ROUTINE AND STANDARDIZED NATURE
 OF THOSE FUNCTIONS.
 
    SECTION 7112(B)(1) OF THE STATURE PROVIDES THAT A UNIT WILL NOT BE
 APPROPRIATE FOR LABOR ORGANIZATION REPRESENTATION IF IT INCLUDES A
 SUPERVISOR.  SECTION 7103(A)(10) PROVIDES, IN PERTINENT PART:
 
    'SUPERVISOR' MEANS 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,
 . . .  BASED ON ALL THE CIRCUMSTANCES, IT IS CONCLUDED THAT THE EVIDENCE
 CONTAINED IN THE RECORD FULLY ESTABLISHES THAT THE 64 LEAD FORECASTERS
 ARE NOT SUPERVISORS AS DEFINED BY SECTION 7103(A)(10) OF THE STATUTE.
 AS NOTED ABOVE, THE RECORD CLEARLY ESTABLISHES THAT EMPLOYEES CLASSIFIED
 AS LEAD FORECASTERS DO NOT EXERCISE INDEPENDENT JUDGMENT IN DIRECTING
 AND ASSIGNING SUBORDINATE FORECASTERS IN THE PERFORMANCE OF THEIR WORK,
 SINCE SUCH WORK IS ROUTINE AND IS RIGIDLY CONTROLLED BY AGENCY
 DIRECTIVE, AND IS PERFORMED BY PROFESSIONALS WHO REQUIRE LITTLE OR NO
 DIRECTION.  MOREOVER, THERE IS NO EVIDENCE THAT LEAD FORECASTERS POSSESS
 OR EXERCISE THE AUTHORITY TO EFFECTIVELY RECOMMEND THE HIRING OF
 EMPLOYEES, DISCIPLINARY ACTIONS, PROMOTIONS, AWARDS OR ADJUSTMENT OF
 GRIEVANCES.  FINALLY, ANY DISCRETION WHICH MAY HAVE BEEN EXERCISED BY
 LEAD FORECASTERS HAS BEEN RARE, AND HAS NOT REQUIRED THE CONSISTENT
 EXERCISE OF INDEPENDENT JUDGMENT.  SEE DEPARTMENT OF THE AIR FORCE,
 NATIONAL GUARD BUREAU, THE ADJUTANT GENERAL, STATE OF ARIZONA, 3 FLRA
 NO. 58 (1980);  VETERANS ADMINISTRATION HOSPITAL, TUCSON, ARIZONA, 4
 FLRA NO. 21 (1980);  AND U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC
 AND ATMOSPHERIC ADMINISTRATION, NATIONAL WEATHER SERVICE, SOUTHERN
 REGION, 5 FLRA NO. 16.  ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE
 EMPLOYEES IN THE DISPUTED JOB CLASSIFICATIONS BE INCLUDED IN THE
 EXCLUSIVELY REPRESENTED UNIT.
 
    SECRETARY-STENOGRAPHER, GS-5
 
    THESE CLERICAL EMPLOYEES ARE ALLEGED TO BE CONFIDENTIAL EMPLOYEES
 BECAUSE OF THEIR WORK RELATIONSHIP WITH THE MICS IN THE TWELVE FORECAST
 OFFICES IN THE ACTIVITY.  THE MIC IS AUTHORIZED TO ESTABLISH LOCAL
 WORKING CONDITIONS, AND HAS OVERALL PERSONNEL ADMINISTRATIVE
 RESPONSIBILITIES FOR HIS RESPECTIVE OFFICE, INCLUDING REVIEW OF EMPLOYEE
 PERSONNEL APPRAISALS AND AUTHORITY TO ADJUST FORMAL GRIEVANCES.  THE
 MICS ARE THE ONLY OFFICIALS IN EACH OFFICE AUTHORIZED TO MEET WITH UNION
 OFFICIALS REGARDING WORKING CONDITIONS, AND HAVE ALSO BEEN CONSULTED BY
 THE ACTIVITY IN PREPARING COLLECTIVE BARGAINING AGREEMENT POSITION.
 
    EACH MIC IS ASSIGNED AS HIS ONLY CLERICAL AN EMPLOYEE CLASSIFIED AS
 SECRETARY-STENOGRAPHER, GS-5.  THESE CLERICALS MAINTAIN PERSONNEL
 RECORDS FOR ALL EMPLOYEES AT THEIR RESPECTIVE FORECAST OFFICE, AND TYPE
 ALL OF THE MICS CORRESPONDENCE, INCLUDING CORRESPONDENCE RELATING TO
 CONFIDENTIAL LABOR RELATIONS MATTERS.  ALL MAIL COMING TO THE MIC,
 INCLUDING CONFIDENTIAL LABOR RELATIONS CORRESPONDENCE, IS PROCESSED BY
 THE CLERICAL EMPLOYEE, WHO GENERALLY HAS ACCESS TO ALL FILES INCLUDING
 CONFIDENTIAL LABOR RELATIONS FILES.
 
    SECTION 7112(B)(2) OF THE STATUTE PROVIDES THAT A UNIT WILL NOT BE
 APPROPRIATE FOR LABOR ORGANIZATION REPRESENTATION IF IT INCLUDES A
 CONFIDENTIAL EMPLOYEE.  SECTION 7103(A)(13) OF THE STATUTE DEFINES A
 "CONFIDENTIAL EMPLOYEE" AS ONE "WHO ACTS IN A CONFIDENTIAL CAPACITY WITH
 RESPECT TO AN INDIVIDUAL WHO FORMULATES OR EFFECTUATES MANAGEMENT
 POLICIES IN THE FIELD OF LABOR-MANAGEMENT RELATIONS," UNDER THE ABOVE
 CIRCUMSTANCES, IT IS CONCLUDED THAT EMPLOYEES CLASSIFIED AS
 SECRETARY-STENOGRAPHERS, GS-5, WORKING DIRECTLY UNDER THE MICS HEREIN,
 ACT IN A CONFIDENTIAL CAPACITY TO AN OFFICIAL INVOLVED IN THE
 FORMULATION AND EFFECTUATION OF THE ACTIVITY'S LABOR RELATIONS POLICIES.
  SEE U.S. ARMY COMMUNICATIONS SYSTEMS AGENCY, FORT MONMOUTH, NEW JERSEY,
 4 FLRA NO. 83 (1980) AND U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC
 AND ATMOSPHERIC ADMINISTRATION, NATIONAL WEATHER SERVICE, SOUTHERN
 REGION, SUPRA.  THUS, AS NOTED ABOVE, EMPLOYEES IN THE DISPUTED
 CLASSIFICATION PERFORM ADMINISTRATIVE AND SECRETARIAL DUTIES FOR, AND
 ACT IN A CONFIDENTIAL CAPACITY TO, THE CHIEF MANAGEMENT OFFICIAL IN EACH
 OF THE ACTIVITY'S TWELVE FORECAST OFFICES WHO PARTICIPATES IN THE
 FORMULATION AND EFFECTUATION OF THE ACTIVITY'S LABOR RELATIONS POLICIES.
 
                                   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 MAY 18, 1978, BE, AND
 IT HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT THE POSITIONS OF LEAD
 FORECASTERS, GS-12, GS-13, AND GS-14, AND BY EXCLUDING FROM SAID UNIT
 THE POSITIONS OF SECRETARY-STENOGRAPHERS, GS-5, WHO WORK DIRECTLY FOR
 METEOROLOGISTS IN CHARGE.
 
    ISSUED, WASHINGTON, D.C., MARCH 19, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE NATIONAL WEATHER SERVICE, EASTERN REGION, (ACTIVITY), AT THE
 HEARING AND IN ITS BRIEF, ARGUES THAT THE HEARING OFFICER VIOLATED
 SECTION 2429.7(E) OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2429.7
 (E)) BY INCLUDING IN THE RECORD THE MOTION TO REVOKE SUBPOENA DUCES
 TECUM AND THE RULINGS THEREON.  THE RECORD DISCLOSES, HOWEVER, THAT THE
 ACTIVITY I