12:0137(34)RO - Merit Systems Protection Board and Merit Systems Protection Board Professional Association -- 1983 FLRAdec RP



[ v12 p137 ]
12:0137(34)RO
The decision of the Authority follows:


 12 FLRA No. 34
 
 MERIT SYSTEMS PROTECTION BOARD
 Agency
 
 and
 
 MERIT SYSTEMS PROTECTION BOARD
 PROFESSIONAL ASSOCIATION
 Petitioner
 
                                            Case No. 3-RO-103
 
                    DECISION AND DIRECTION OF ELECTION
 
    Upon a petition duly filed with the Federal Labor Relations Authority
 under section 7111(b)(1) 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 the entire record in this case, the Authority makes the
 following findings:  The MSPBPA (the Union) seeks to represent an
 agency-wide unit consisting of all professional employees of the Merit
 Systems Protection Board (the Board) in the GS-905 and GS-930
 classification series, excluding all other professional employees,
 non-professional employees, management officials, supervisors, and
 employees described in section 7112(b)(2), (3), (4), (6) and (7) of the
 Statute.  /1/ The Union currently represents a unit within the Board's
 Office of Appeals described as consisting of all attorneys and appeals
 officers in the GS-905 and GS-930 series, /2/ respectively.  In the
 instant petition, the Union seeks to represent employees in its current
 unit plus similarly classified employees in the Board's Office of the
 General Counsel and Regional Offices.  The Agency contends that
 employees of the three organizational components do not share a
 community of interest as required by section 7112(a)(1) of the Statute.
 /3/ It asserts that inclusion of Office of Appeals employees with
 Regional Office attorneys would convey an appearance of a conflict of
 interest because Appeals Office employees review decisions issued by the
 Regional Offices.  The Agency contends that attorneys within the Office
 of the General Counsel should not be included in any event because they
 are management officials within the meaning of section 7103(a)(11) of
 the Statute.  /4/
 
    The Board was created by the Civil Service Reform Act of 1978 to
 exercise appellate jurisdiction over cases involving Federal employees
 who have been the subject of adverse actions.  The Board also has
 original jurisdiction over cases in which no formal agency action has
 been taken, such as adverse actions against administrative law judges.
 
    The Board has approximately 350 employees.  The Chair of the Board
 has delegated administrative authority to the Managing Director for the
 Board's day-to-day operations.  The Managing Director thus has
 supervisory authority over the Agency's employees.
 
    Organizationally, the Board is composed of a National Headquarters
 Office in Washington, D.C., and eleven regional offices.  The Office of
 Appeals and the Office of the General Counsel are organizational
 components located at the National Headquarters.  Each regional office
 is under the general authority of a regional director.  The proposed
 unit members in each region are classified as Attorney-Examiners, series
 GS-905, who conduct administrative hearings, establish records of those
 proceedings, and issue initial decisions on the merits.  The employees
 in the Office of Appeals sought herein include two classifications:
 General Attorneys, series GS-905, who process petitions for review of
 initial decisions drafted by the attorney-examiners within the Board's
 regional offices and recommend whether such petitions should be granted;
  and Appeals Officers, series GS-930.  /5/ Each Appeals attorney in the
 GS-905 series works under the supervision of a team leader who reviews
 the attorney's work for conformance to agency policy and standards.
 
    The employees in the Office of the General Counsel sought herein are
 classified as Trial Attorneys (General), series GS-905.  They make
 recommendations to the Board members on a variety of subjects including
 advisory opinions on novel and complex issues relating to the Agency's
 adjudicating authority.  Each is responsible to a supervising attorney
 for form and content of work products.
 
    In regard to the Agency's contention that the General Counsel
 attorneys should be excluded from the unit because they are management
 officials within the meaning of section 7103(a)(11) of the Statute, /6/
 it is alleged that these employees are required to exercise independent
 judgment on a wide variety of complex and novel issues, and as a result
 they influence the establishment of Agency policy such as the Board's
 standard of Conduct.  In the lead case of Department of the Navy,
 Automatic Data Processing Selection Office, 7 FLRA No. 24 (1981), the
 Authority interpreted the definition of management official in section
 7103(a)(11) 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.  The record reveals that although these attorneys provide legal
 advice and recommendations on various policy issues to the Board, their
 work is directed by a superior and their recommendations are reviewed as
 those of experts or professionals rather than those of management
 officials who formulate, determine, or influence agency policy.  Thus,
 it is concluded that these employees are not management officials within
 the meaning of the Statute.
 
    The Authority also finds that a unit of all GS-905 series employees
 of the Agency is appropriate for exclusive recognition under section
 7112(a)(1) of the Statute.  In the first place, the employees sought
 share a clear and identifiable community of interest.  Thus, they are
 all subject to the same uniform personnel policies, practices and
 directives, which are administered at the Board's National Headquarters.
  The parties stipulated that the proposed unit members are subject to
 the same policies on overtime, employee grievance procedure, part-time
 employment, transfer and separation.  All of the Board's offices are
 under the overall supervision of the Managing Director.  In addition,
 the record shows that some transfer and interchange have occurred.
 Thus, there has been permanent transfer of attorneys among the Office of
 Appeals, the Regional Offices and the Office of the General Counsel.
 Further, the record shows that the Board has an Attorney Developmental
 Reassignment Program which encourages attorneys to apply voluntarily for
 temporary reassignment to other offices within the Agency.  /7/
 
    The Authority further concludes that the proposed unit would promote
 effective dealings and efficiency of agency operations.  In this regard,
 it is noted particularly that the personnel policies and practices of
 the Board are centrally established and uniformly administered at its
 headquarters.  See Naval Sea Support Center, Atlantic Detachment, 7 FLRA
 No. 99 (1982).
 
    Based upon the foregoing, the Authority finds that the following unit
 is appropriate for the purpose of exclusive recognition within the
 meaning of section 7112 of the Statute:
 
          All professional employees of the Merit Systems Protection
       Board in the classification series designation of GS-905,
       Nationwide, in the Office of General Counsel, the Office of
       Appeals, and Regional Offices, excluding all other professional
       employees, nonprofessional employees, management officials,
       supervisors, and employees described in section 7112(b)(2), (3),
       (4), (6), and (7) of the Statute.
 
                         DIRECTION OF ELECTION /8/
 
    An election by secret ballot shall be conducted among the employees
 in the unit described above as soon as feasible.  The appropriate
 Regional Director shall supervise or conduct the election, as
 appropriate, subject to the Authority's Rules and Regulations.  Eligible
 to vote are those in the voting group who were employed during the
 payroll period immediately preceding the date below, including employees
 who did not work during that period because they were out ill, or on
 vacation or on furlough, including those in the military service who
 appear in person at the polls.  Ineligible to vote are employees who
 have quit or were discharged for cause since the designated payroll
 period and who have not been rehired or reinstated before the election
 date.  Those eligible shall vote on whether or not they desire to be
 represented for the purpose of exclusive recognition by the Merit
 Systems Protection Board Professional Association.  Issued, Washington,
 D.C., June 7, 1983.
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7112(b)(2), (3), (4), (6) and (7) provides in pertinent
 part:
 
          Sec. 7112.  Determination of appropriate units for labor
       organization representation
 
                                .  .  .  .
 
          (b) A unit shall not be determined to be appropriate under this
       section solely on the basis of the extent to which employees in
       the proposed unit have organized, nor shall a unit be determined
       to be appropriate if it includes--
 
                                .  .  .  .
 
          (2) a confidential employee;
 
          (3) an employee engaged in personnel work in other than a
       purely clerical capacity;
 
          (4) an employee engaged in administering the provisions of this
       chapter;
 
                                .  .  .  .
 
          (6) any employee engaged in intelligence, counterintelligence,
       investigative, or security work which directly affects national
       security;  or
 
          (7) any employee primarily engaged in investigation or audit
       functions relating to the work of individuals employed by an
       agency whose duties directly affect the internal security of the
       agency, but only if the functions are undertaken to ensure that
       the duties are discharged honestly and with integrity.
 
 
    /2/ The record indicates that, at the time of the hearing, employees
 in the GS-930 series were in the process of being "phased out." In view
 of the foregoing, the Authority will not consider these positions in
 determining the appropriateness of the unit sought herein.
 
 
    /3/ Section 7112(a)(1) provides:
 
          Sec. 7112.  Determ