34:0143(32)CU - - Agriculture, Food and Nutrition Service, Alexandria, Virginia and NTEU - - 1990 FLRAdec RP - - v34 p143



[ v34 p143 ]
34:0143(32)CU
The decision of the Authority follows:


34 FLRA No. 32

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF AGRICULTURE

FOOD AND NUTRITION SERVICE

ALEXANDRIA, VIRGINIA

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Petitioner)

3-CU-90013

ORDER DENYING APPLICATION FOR REVIEW

January 5, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the U.S. Department of Agriculture, Food and Nutrition Service, Alexandria, Virginia (the Agency) under section 2422.17 of the Authority's Rules and Regulations. The Agency seeks review of the Regional Director's Decision and Order on a petition for clarification of unit filed by the National Treasury Employees Union (NTEU). NTEU filed an opposition to the Agency's application for review.

By its petition, NTEU seeks to clarify its certified bargaining unit by including Computer Specialist Arthur J. Caine. The Regional Director found that Mr. Caine was not a management official within the meaning of section 7103(a)(11) of the Federal Service Labor-Management Relations Statute (the Statute) and ordered that Mr. Caine be included in the unit. For the reasons discussed below, we deny the application for review.

II. Background and Regional Director's Decision

NTEU filed a petition seeking to clarify the status of the position of Computer Specialist, GS-334-13, held by Mr. Caine. The Agency asserted that Mr. Caine should be excluded from the bargaining unit because he is a management official.

The Computer Specialist position is located in the Agency's Information Resources Management Division (IRMD). The IRMD is responsible for developing and administering the Agency's Automated Data Processing system (ADP). The incumbent works under the supervision of the Director and Deputy Director of the IRMD.

The Regional Director found that the primary responsibility of the Computer Specialist position is to act as ADP Security Officer. The Regional Director found that the Computer Specialist is responsible for: (1) advising Agency management on policies and procedures to ensure ADP integrity; (2) monitoring the ADP system for security violations; (3) conducting annual risk analysis; and (4) developing ADP security plans. Regional Director's Decision at 2. The Regional Director found further that the Computer Specialist prepares guidance for Agency officials regarding ADP security and reports security infractions to appropriate authorities. Id. at 2-3. The Regional Director also found that in performing the duties as ADP Security Officer, the Computer Specialist works within prescribed guidelines. Id. at 3. In addition, the Computer Specialist serves as technical authority and consultant to management on all aspects of ADP security, serves as consultant on computer programs, prepares computer programs, and provides training. Id.

The Regional Director applied the criteria for determining whether an employee is a management official established by the Authority in Department of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172 (1981) (ADP Selection Office), and concluded that Mr. Caine was not a management official within the meaning of section 7103(a)(11) of the Statute. Id. at 3-4.

The Regional Director found that Mr. Caine did not "exercise any duties or responsibilities which require or authorize him to formulate, determine or effectively make IRMD policies." Id. at 4. The Regional Director found further that although Mr. Caine makes recommendations on security matters, those recommendations are subject to higher level approval. Id. The Regional Director concluded that Mr. Caine is "a highly trained professional who assists in the implementation of ADP security and policy matters as opposed to making ADP security policies." Id. Therefore, the Regional Director concluded that Mr. Caine was not a management official and ordered that he be included in the unit.

III. The Agency's Application for Review

The Agency asserts that the Authority should grant review of the Regional Director's decision that Mr. Caine is not a management official under section 2422.17(c) of the Authority's Rules and Regulations. The Agency contends that the Regional Director departed from Authority precedent when he failed to find that Mr. Caine is a management official.

According to the Agency, Mr. Caine is responsible for overseeing all physical and data security of the Agency and for developing security plans. Application for Review at 4. The Agency asserts that Mr. Caine develops and influences policy making in the area of ADP security and exercises independent judgment in deciding the application and meaning of established policies. Id. at 5. The Agency also argues that Mr. Caine establishes security systems operation policies for the Agency and acts as a technical consultant to management on all aspects of ADP security. Id.

The Agency argues that Mr. Caine "has almost total administrative independence in planning, performing and shaping the mission of the Agency in regards to ADP security." Id. at 6. In addition, the Agency asserts that Mr. Caine is responsible for the security of the Agency's automated data processing facilities and equipment and that he "has the authority to shut down agency logs on ID's when needed." Id. Therefore, the Agency argues that Mr. Caine "is responsible for the formulation, determination, and influence of the policies of the agency, directly related to ADP security." Id. at 7.

In addition, the Agency asserts that "[t]he incumbent's participation in a labor organization would create a conflict of interest." Id. at 7. The Agency asserts that the Computer Specialist is an individual "identified with management and who, by virtue of his status and level of responsibility within the Agency, must, at all times, have the interests of agency management as his primary concern in the context of a collective bargaining relationship." Id. In support of this argument, the Agency relies on section 7120(e) of the Statute. According to the Agency, section 7120(e) of the Statute "recognizes the conflict of interest problem as a basis for excluding a management official from participation in a labor organization." Id. at 4. Consequently, the Agency claims that the Regional Director's decision including the position in the bargaining unit constitutes a departure from Authority precedent.

The Agency also asserts that the Regional Director departed from Authority precedent by narrowly interpreting the definition of management official set out in ADP Selection Office. Specifically, the Agency contends that in addition to meeting the criteria set out in ADP Selection Office, the Regional Director required that Mr. Caine "not only must actively participate in decision making, but that (1) [he] must also be responsible for the overall operation of the IRM Division; (2) that he exercise final decision making authority; and (3) that decisions rendered by [him] not be subject to higher level review." Id. at 8. The Agency argues that there is no requirement that an employee's decisions must not be subject to higher level review or approval in order for the employee to be a management official. The Agency claims that if the Regional Director's interpretation of the definition of management official is adopted, only seven employees in the Agency would be considered management officials. Finally, the Agency argues that the Regional Director failed to address "substantial evidence and testimony in support of its position" that Mr. Caine is a management official. Id. at 9.

IV. Union's Opposition to Agency's Application for Review

The Union argues that the Agency has not established compelling reasons for the Authority to grant review. According to the Union, "the Agency fails to allege a single precedent which the Regional Director has failed to follow." Union's Opposition at 2. The Union asserts that the Agency's application for review only constitutes a disagreement with the Regional Director's findings that Mr. Caine "merely assisted in implementing, as opposed to actually shaping, the Agency's ADP policies, including security." Id.

V. Analysis and Conclusion

For the following reasons, we conclude that no compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting review of the Regional Director's Decision and Order. We find that no substantial question of law or policy is raised by reason of a departure from Authority precedent.

Section 7103(a)(11) of the Statute defines a management official as "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." In ADP Selection Office, the Authority determined that the definition of management officials includes 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." 7 FLRA 172, 177.

The Regional Director applied the criteria established in ADP Selection Office and concluded that Mr. Caine was not a management official because he did not formulate, determine, or influence agency policy within the meaning of section 7103(a)(11) of the Statute. The Regional Director found that Mr. Caine was a highly trained professional who provides the Director and Deputy Director of the IRMD with resource information, and who assists in implementing, as opposed to shaping, the Agency's policies. The Regional Director also found that Mr. Caine works within prescribed guidelines in performing his duties as ADP Security Officer.

We find that the Regional Director applied the appropriate criteria for determining whether Mr. Caine is a management official, and that the Agency has not demonstrated that the Regional Director's conclusion raises a substantial question of law because of a departure from Authority precedent. In particular, we reject the Agency's assertion that the Regional Director's decision warrants review because it "impl[ies] that to satisfy the definition of management official one must not be subject to higher level review or approval." Application for Review at 8. We do not read the Regional Director's decision as suggesting that in order for an individual to be a management official within the meaning of section 7103(a)(11) of the Statute, that individual's work may not be subject to higher level review or approval. Rather, the fact that an individual's work is or is not subject to higher level review or approval is only one factor to be considered in determining whether an individual is a management official. In our view, the Regional Director's determination that Mr. Caine is not a management official was based on all of his findings concerning Mr. Caine's duties and responsibilities, not just his finding that Mr. Caine's work is subject to higher level review.

Moreover, the instant case is distinguishable from the Authority's decision in U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 12 FLRA 358 (1983) (U.S. Environmental Protection Agency), relied on by the Agency to support its position. In U.S. Environmental Protection Agency, the unit status of an ADP Security Specialist position was in dispute. The Authority held that the ADP Security Specialist was a management official because the record established that the ADP Security Specialist developed security policy for the agency's National Computer Center and had the authority to close down the facility in the event of a security violation. Unlike the ADP Security Specialist in U.S. Environmental Protection Agency, Mr. Caine has no authority to shut down equipment in the event of a security violation. In the event of such an occurrence, Mr. Caine's role "is to act as a consultant and . . . consult . . . the person who basically has the responsibility for that facility." Transcript at 60. Moreover, the Agency has not demonstrated that the Regional Director erred in finding that "Mr. Caine is a highly trained professional who assists in the implementation of ADP Security and policy matters as opposed to making ADP security policies." Regional Director's Decision at 4. Therefore, we find that the Authority's decision in U.S. Environmental Protection Agency does not support the Agency's position.

Accordingly, we reject the Agency's