16:0390(63)CA - Health Care Financing Administration and AFGE Local 1923 -- 1984 FLRAdec CA

 16 FLRA No. 63
 
 HEALTH CARE FINANCING ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1923, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-40060
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record, including the stipulation of
 facts, accompanying exhibits, and the parties' contentions, the
 Authority finds:
 
    The complaint alleges that the Health Care Financing Administration
 (Respondent) refused to comply with section 7115(a) of the Statute /1/
 by refusing to honor the written assignment authorizing Respondent to
 deduct dues from the pay of Mr. James Young, as requested by the
 American Federation of Government Employees, Local 1923, AFL-CIO (AFGE),
 and thereby violated section 7116(a)(1) and (8) of the Statute.  /2/
 
    On August 21, 1980, the American Federation of Government Employees,
 AFL-CIO was certified as the exclusive representative of a consolidated
 unit of professional and nonprofessional employees at Respondent's
 Headquarters.  At all times material herein, the AFGE has been the
 designated agent of the American Federation of Government Employees,
 AFL-CIO for handling collective bargaining issues arising within the
 Respondent's Baltimore, Maryland location.  On or about October 25,
 1983, the AFGE received from Mr. James Young a written assignment
 authorizing the Respondent to deduct from Mr. Young's pay amounts for
 the payment of regular and periodic dues to the AFGE.  On November 7,
 1983, Respondent received from the AFGE a written assignment authorizing
 Respondent to deduct from Mr. Young's pay amounts for the payment of
 regular and periodic dues to the AFGE.  Respondent refused to honor said
 assignment on November 8, 1983, and continues to refuse to make
 appropriate allotments to the AFGE pursuant to the assignment claiming
 that Mr. Young is a management official within the meaning of section
 7103(a)(11) of the Statute and therefore is not a member of the
 bargaining unit.
 
    At all times material herein, Mr. Young has been employed by
 Respondent as a Review Board Advisor, GS-950-14 for the Provider
 Reimbursement Review Board.  The Board is an administrative body
 comprised of five Board members which adjudicates disputes between the
 provider of services, such as hospitals and health maintenance
 organizations, and the Medicare program when the amount of the disputed
 reimbursement exceeds $10,000.  Mr. Young's duties include:  (1) the
 promotion of settlements between the parties prior to a hearing;  (2) in
 hearings from the Board, presentation of positions of both parties and
 recommendations as to findings;  (3) in preparation for hearings,
 drafting of written summaries for each case;  (4) the preparation of
 written draft opinions of the Board;  (5) making recommendations to the
 Board concerning proposed changes in Medicare law and regulations;  and
 (6) giving interpretations of the law and regulations to the Board.  Mr.
 Young does not have the authority to take final action on the
 disposition of appeals, but rather makes recommendations to the Board
 and prepares draft decisions which are reviewed and edited by the Board
 prior to issuance.  The Board makes all final decisions on appeal cases.
 
    The Respondent contends that Young is a management official within
 the meaning of section 7103(a)(11) of the Statute /3/ and thus is not
 entitled to dues withholding under the meaning of section 7115(a) of the
 Statute.  In the lead case of Department of the Navy, Automatic Data
 Processing Selection Office, 7 FLRA 172 (1981), the Authority
 interpreted the statutory definition of "management official" 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.  Applying
 these criteria to the instant case, the Authority finds that Young is
 not a management official.  Thus, the record establishes that Young has
 no authority to make final decisions on cases but merely makes
 recommendations and prepares draft decisions which are reviewed and
 edited prior to issuance;  that in presenting interpretations of the law
 and regulations to the Board, he is merely following the policy
 formulated by others and that he only makes recommendations concerning
 proposed changes of Medicare laws and regulations and has no authority
 to make such changes.  Based on the above, the Authority finds that Mr.
 Young is a highly trained professional whose actions assist in
 implementing, as opposed to shaping, the Respondent's overall policies.
 Thus, the record is clear that he does not exercise any duties or
 responsibilities which require or authorize him to formulate, determine,
 or influence the policies of the Activity within the meaning of section
 7103(a)(11) of the Statute.
 
    The Authority has held that an agency's determination that an
 employee is a supervisor or management official for purposes of coverage
 under the merit pay provisions of the Civil Service Reform Act of 1978
 has no impact on such employee's inclusion in or exclusion from a unit
 of exclusive recognition under section 7112 of the Statute.  In this
 regard, the Authority has held in Interpretation and Guidance, 4 FLRA
 754, 757, (1980), that an agency acts at its own peril in removing an
 employee from a unit of exclusive recognition simply because of its
 determination that such employee is a supervisor or management official.
  Thus, as the Authority finds that Mr. Young is not a management
 official, the Respondent's failure to honor his dues allotment
 constitutes a violation of section 7116(a)(1) and (8) of the Statute.
 See Department of Health and Human Services, Social Security
 Administration, Chicago, Illinois, 13 FLRA No. 45 (1983);  and
 Department of the Air Force, 3480th Air Base Group, Goodfellow Air Force
 Base, Texas, 9 FLRA 394, 396 (1982),