20:0071(8)CU - Justice,; INS, Western Regional Office and National INS Service Council, AFGE Local 505 -- 1985 FLRAdec CU



[ v20 p71 ]
20:0071(8)CU
The decision of the Authority follows:


20 FLRA No. 8

UNITED STATES DEPARTMENT OF JUSTICE 
IMMIGRATION AND NATURALIZATION SERVICE 
WESTERN REGIONAL OFFICE
                                             Activity 

and 

NATIONAL IMMIGRATION AND NATURALIZATION 
SERVICE COUNCIL, AMERICAN FEDERATION OF 
GOVERNMENT EMPLOYEES, LOCAL 505, AFL-CIO 

                                                  Labor Organization 

                                  Case Nos. 8-CU-40008;
                                                   8-CU-40009
                                                    8-CU-40010

              OPINION CONCERNING APPLICATION FOR REVIEW /1/

   On July 12, 1985, the United States Department of Justice,
Immigration and Naturalization Service, Western Regional Office (the
Activity) filed a timely application for review, pursuant to section
2422.17(a) of the Authority's Rules and Regulations, seeking to set
aside the Regional Director's Decision and Order on Petitions for
Clarification of Unit in the above-named cases.  In support thereof, the
Activity contended that compelling reasons within the meaning of section
2422.17(c) of the Authority's Rules and Regulations exist for granting
the application.  /2/

   In its petitions, the Activity sought to exclude certain categories
of employees from the bargaining unit represented by Local 505.  The
Regional Director determined that certain employees were not management
officials within the meaning of section 7103(a)(11);  that certain
employees were not supervisors within the meaning of section
7103(a)(10);  that certain employees were not primarily engaged in
investigations regarding internal security of the activity within the
meaning of section 7112(b)(7);  and that a certain employee was not a
confidential employee within the meaning of section 7103(a)(13).  Thus,
with the exception of one employee found to be a supervisor, the
Regional Director found the employees at issue should be included in the
bargaining unit.

   The Activity contended, as its first ground for granting the
application for review in this case, that pursuant to section
2422.17(c)(2) of the Authority's Rules and Regulations there were
extraordinary circumstances warranting reconsideration of an Authority
policy.  In support of this ground the Activity alleged that the
Authority, in an earlier decision, Department of the Navy, Automatic
Data Processing Selection Office, 7 FLRA 172(1981), interpreting and
applying the definition of management official, /3/ erroneously defined
the term "influence." The Activity suggested that the term is correctly
defined by Webster's New Collegiate Dictionary and that "the Authority
is applying a narrower standard than Congress obviously intended . . .
." However, the Activity cited no authority or specific directly
relevant legislative history for either of these propositions.  Thus it
failed to establish that extraordinary circumstances exist to warrant
reconsideration of the Authority's policy as contained in
well-established Authority precedent which has been applied consistently
in a number of cases presenting a wide variety of facts and
circumstances.  The Activity's contentions in this regard constitute
nothing more than mere disagreement with established Authority precedent
concerning the meaning of the word "influence" as used in the statutory
definition of management official.  Mere disagreement with Authority
precedent concerning the meaning of "influence" as used in this
definition does not in the present case present extraordinary
circumstances warranting reconsideration of an Authority policy.  It
merely presents a request to reconsider established precedent concerning
the meaning of that particular word.  Such a request does not rise to
the level of a request reconsideration of an Authority policy.
Furthermore, the Activity did not present evidence of any other
extraordinary circumstances to warrant review of that precedent.  /4/
Accordingly, the Activity's application for review did not present
grounds that in the present case there were extraordinary circumstances
warranting reconsideration of an Authority policy.

   As its second ground, the Activity alleged that pursuant to section
2422.17(c)(1) a substantial question of law or policy exists due to the
absence of Authority precedent regarding the interpretation of the
latter half of section 7120(e) /5/ of the Statute.  That provision, in
pertinent part, by its plain terms concerns employee participation in
the management or representation of a labor organization where such
participation or activity would result in a conflict or apparent
conflict of interest or would otherwise be incompatible with law or with
the official duties of the employee.  Assuming, without deciding, an
absence of Authority precedent concerning the meaning and application of
this portion of section 7120(e), the Authority found nothing in the
application for review to demonstrate that the Regional Director's
decision in this case raises a substantial question of law or policy
because of the absence of such precedent.

   The Regional Director did not interpret or apply section 7120(e) in
the circumstances of this case.  In fact, there is no mention of section
7120(e) in his decision.  Section 7120(e) deals with employee
participation in the management or representation of a labor
organization and there was no issue pertaining to such participation
before him.  The instant case presented issues pertaining to the
exclusion of certain categories of employees from a bargaining unit.
While there may be interesting, as yet unanswered questions about the
relationship between the provisions in the Statute which deal with these
two matters, the Activity's application for review did not demonstrate
that the Regional Director's decision herein in any manner raised a
substantial question of law or policy concerning that relationship.
Furthermore, the Activity did not introduce evidence to indicate that
any of the employees whose inclusion in the bargaining unit is at issue
herein are involved in the management of a labor organization or act as
representatives of a labor organization.  Accordingly, as this
allegation by the Activity was not relevant to the resolution of issues
presented by the petitions herein, the application for review did not
meet the grounds for granting an application for review as set forth in
section 2422.17(c)(1) of the Authority's Rules and Regulations.

   The Activity's third ground alleged that with respect to a single
employee, the secretary to a management official who effectuates policy
in the area of labor relations, the Regional Director departed from
established Authority precedent.  Hence, the Activity contended that the
Regional Director's decision in this regard presents, pursuant to
section 2422.17(c)(1) of the Authority's Rules and Regulations, a
substantial question of law or policy because of such departure from
Authority precedent.  The Regional Director found that the record
establishes that the incumbent secretary, Ms. Ono, performs typing
relating to confidential labor relations matters and has access to files
which contain such materials.  Nevertheless, he concluded, based on
Authority precedent, that neither mere access to nor typing of
occasional labor-management materials warrants the exclusion of the
employee from the unit as a confidential employee.  /6/ The Activity, in
support of its contention that the Regional Director departed from
Authority precedent in this regard, states:  "The Regional Director
ignored to (sic) testimony presented at the Hearing when he determined
that Ms. Ono only had access to or occasionally typed labor relation
(sic) material and therefore was not excluded as a confidential
employee.  Ms. Ono is the only secretary in the Division and the
testimony presented at the Hearing clearly demonstrates that her
involvement in labor relations matters rises above the level of 'mere
access.'" As this passage clearly demonstrates, the Activity merely
disagreed with the Regional Director's findings of fact as to Ms. Ono
and his application of Authority precedent to those facts.  The Activity
in no manner demonstrated that the Regional Director's decision presents
a substantial question of law or policy because of departure from
Authority precedent.  Mere disagreement with the Regional Director's
application of precedent to the facts does not meet the criteria for
granting an application for review pursuant to section 2422.17(c)(1) of
the Authority's Rules and Regulations.  /7/

   Upon consideration of the Activity's application for review,
including all arguments in support thereof, it was concluded that no
compelling reasons exist for granting this application.  Rather, the
application in essence expresses mere disagreement with Authority
precedent and with the Regional Director's factual findings and his
application of precedent to those facts which findings have not been
shown to be clearly erroneous or to have prejudicially affected the
rights of any party.

   In so concluding, it should be noted that the delegation of authority
to the Regional Directors with respect to representation cases, and the
concomitant amendment of the Authority's Rules and Regulations, 48
Fed.Reg. 40189(1983) (codified at 5 C.F.R. 2422.2-2422.22), was
undertaken by the Authority in order to provide for the expeditious
processing and determination of representation matters.  See 48 Fed.Reg.
28814(1983).  Thus, this delegation, which vests primary authority and
power in the Regional Directors to decide representation matters,
facilitates the processing and determination of representation issues by
the Regional Directors;  avoids duplication of effort (with respect to
resolution of representation issues) by the General Counsel and the
Authority;  and promotes the efficient and effective operation of the
Authority and the General Counsel.

   With a view toward expediting the processing of representation cases,
the Authority, in section 2422.17 of its amended Rules and Regulations,
limited the power to grant review of Decisions and Orders of the
Regional Director.  Section 2422.17(c) limits the Authority's power to
grant an application for review solely to those circumstances where it
appears that a compelling reason exists based on four specific grounds.
Therefore, when applications for review of Regional Director decisions
are presented to the Authority, the first question is not whether the
Authority would reach precisely the same result but whether the
applicant has met the stated criteria for acceptance.  In the
circumstances of this case, it must be concluded that the first question
be answered in the negative.

   Accordingly, it was determined that the application for review of the
Regional Director's Decision and Order on Petitions for Clarifications
of Unit should not be granted and, pursuant to section 2422.17(f)(2) of
the Authority's Rules and Regulations, the decision of the Regional
Director became the action of the Authority on September 10, 1985.

   Issued, Washington, D.C. September 13, 1985
                                      Henry B. Frazier III, Acting
                                      Chairman
                                      FEDERAL LABOR RELATIONS AUTHORITY

   Opinion of Member McGinnis, concurring and dissenting.

   By operation of Authority rules at section 2422.17, a Decision and
Order by a Regional Director in a representation matter may only be
reviewed by the Authority upon timely application by a party to the
matter.  When such timely application is made, the Authority has three
options:

   1.  The Authority may grant review of any of the four reasons listed
in section 2422.17(c), whereafter the Authority must issue a decision in
the merits of the application for review.

   2.  The Authority may issue a decision denying the application for
review.

   3.  By failing to act at all within 60 days of the application for
review, the Authority may effectively deny the application without
taking an official action.

   The third of these options is never acceptable to me, since I
strongly believe that the parties and the public are entitled to an
Authority which can be measured by its actions rather than by its
silence.  The remaining options require a majority vote of the Authority
Members;  given the present vacancy in the Chairman position, a majority
vote of the Authority is necessarily a unanimous vote.  Since Acting
Chairman Frazier is committed to the denial of review in this matter, I
must either concur with him, thus guaranteeing the parties a decision,
or disagree, thus denying the parties the decision which one of them has
requested.

   Therefore, with great reluctance, I concur with Acting Chairman
Frazier's decision to deny the Activity's application for review in this
matter.  I write to express my particular disagreement with that portion
of the Regional Director's Decision which allows an indisputable
management official under the Statute to be represented by a labor
organization for the purposes of collective bargaining.  While I am
powerless to change this repugnant result due to the combination of the
Authority's rules and Acting Chairman Frazier's position, I am compelled
to state my views for the record.

   Dona Coultice is a Detention and Deportation Officer, GM-1801-13 with
primary responsibility for the allocation of the Detention and
Deportation Division's annual budget throughout the ten offices of the
Western Region of the Immigration and Naturalization Service.  In the
course of her duties, she solicits on a quarterly basis the budgetary
requirements for that quarter from each of the ten offices within the
Activity.  She analyzes the offices' expenditures for the previous
quarter and their apparent needs for the ensuing quarter, and each year
distributes the approximately $1,000,000 under her control.  Normally,
the requests exceed the amount of money that Coultice is authorized to
distribute and she has the authority to decide how the money should be
allocated without approval from her supervisor who, in most cases, does
not even see Coultice's allocations.  The record is replete with
examples of Coultice making fundamental budgeting decisions affecting
all ten offices of the INS Western Region.

   Under the Statute at section 7103(a)(11), an employee who is required
or authorized "to formulate, determine, or influence the policies of the
agency" is a management official.  See, generally, Department of the
Navy, Automatic Data Processing Selection Office, 7 FLRA 172(1981).  It
is axiomatic that control of an organization's budget is critical to
effective control of that organization's policies and goals.  There can
be no doubt that Dona Coultice has control of the budgetary process at a
level that allows her to significantly influence the policies of her
agency.  It follows that she is a management official within the meaning
of the Statute, and should be removed from the bargaining unit
represented by the labor organization herein.

   The Regional Director clearly erred when he failed to reach this
result.  While an Application for Review under Authority rules does not
compel the Authority to correct every mistake committed by a Regional
Director in a representation proceeding, the Authority must grant review
where, as here, a Regional Director departs from Authority precedent
(section 2422.17(c)(1)(ii)).  /8/ Thus, the Regional Director should
have been guided by established Authority precedent excluding from
bargaining units positions such as the one in question.  For example, in
Headquarters, 1947th Administrative Support Group, U.S. Air Force,
Washington, D.C., 14 FLRA 220, 229(1984), the Authority excluded a
Supply Funds Manager, GS-2001-13, from the recognized bargaining unit
because he was a management official within the meaning of the Statute.
Like Dona Coultice, the Supply Funds Manager had "decision, executive
and internal signature authority in the area of budget allocation for
supply and equipment . . . " to a significant number of diversely
located Activity units.  The degree of independent authority to expend
funds was critical to the management official finding, in contrast to
cases where the Authority found that employees whose recommendations
were subject to several levels of review were not management officials.
See, e.g., Department of Navy, Civil Engineering Laboratory, Port
Hueneme, California (Principal Investigators), 8 FLRA 707-709(1982);
Defense Communications Agency, Headquarters, Arlington, Virginia
(Communications Specialists and Costs Analysts), 8 FLRA 764, 766(1982);
National Guard Bureau, State of New York, Division of Military and Naval
Affairs (Program and Mobility Technician), 9 FLRA 16, 18(1982).  Even in
non-financial areas, employees exercising important independent judgment
in a manner similar to Dona Coultice have repeatedly been found to be
management officials.  See, e.g., Department of Army Headquarters, Rock
Island Arsenal, Illinois (Public Information Specialist), 8 FLRA 758,
760(1982), Department of the Interior, Bureau of Mines Twin Cities
Research Center (Assistant to Research Director), 9 FLRA 109, 112(1982)
and Headquarters, Air Force Command (Quality Assurance Specialists), 9
FLRA 885, 888(1982).

   Thus, with the concurrence of Acting Chairman Frazier, I would vote
to grant the application for review under section 2422.17(c)(1)(ii)
because the Regional Director's Decision as to Dona Coultice departs
from established Authority precedent.  However, since Acting Chairman
Frazier does not concur with my view, and in view of legitimate rights
of the parties to a decision, I reluctantly join the denial of the
Activity's Application for Review.

                                      William J. McGinnis, Jr., Member
                                      FEDERAL LABOR RELATIONS AUTHORITY






--------------- FOOTNOTES$ ---------------


   /1/ Member McGinnis' separate opinion is set forth, infra.


   /2/ Section 2422.17(c) provides:

         (c) The Authority may grant an application for review only
      where it appears that compelling reasons exist therefor.
      Accordingly, an application for review may be granted only upon
      one or more of the following grounds:

         (1) That a substantial question of law or policy is raised
      because of (i) the absence of, or (ii) a departure from, Authority
      precedent;

         (2) That there are extraordinary circumstances warranting
      reconsideration of an Authority policy;

         (3) That the conduct of the hearing held or any ruling made in
      connection with the processing has resulted in prejudicial error;
      or

         (4) That the Regional Director's decision on a substantial
      factual issue is clearly erroneous and such error prejudicially
      affects the rights of a party.


   /3/ Section 7103(a)(11) of the Statute provides:

         'management official' means an individual employed by an agency
      in a position the duties and responsibilities of which require or
      authorize the individual to formulate, determine, or influence the
      policies of the agency(.)


   /4/ The Activity does not contend that there is an absence of
precedent concerning the meaning of the term "influence";  in fact, it
acknowledges the existence of such precedent.  Further, it does not
argue that the Regional Director improperly applied that precedent.


   /5/ Section 7120(e) of the Statute provides:

         This chapter does not authorize participation in the management
      of a labor organization or acting as a representative of a labor
      organization by a management official, a supervisor, or a
      confidential employee, except as specifically provided in this
      chapter, or by an employee if the participation or activity would
      result in a conflict or apparent conflict of interest or would
      otherwise be incompatible with law or with the official duties of
      the employee.


   /6/ Section 7103(a)(13) of the Statute provides:

         'confidential employee' means an employee who acts in a
      confidential capacity with respect to an individual who formulates
      or effectuates management policies in the field of
      labor-management relations(.)


   /7/ It should be noted as to this third ground, the Activity offers
no