35:0084(11)RO - - Transportation, Coast Guard, 8th Coast Guard District, New Orleans, LA and Service Employees International Union, Local 100 - - 1990 FLRAdec RP - - v35 p84



[ v35 p84 ]
35:0084(11)RO
The decision of the Authority follows:


35 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF TRANSPORTATION

U.S. COAST GUARD

8TH COAST GUARD DISTRICT

NEW ORLEANS, LOUISIANA

(Activity)

and

SERVICE EMPLOYEES INTERNATIONAL UNION

LOCAL 100, AFL-CIO

(Labor Organization/Petitioner)

6-RO-90005

ORDER GRANTING IN PART AND DENYING IN PART

APPLICATION FOR REVIEW AND REMANDING CASE

TO REGIONAL DIRECTOR

March 9, 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 of the Regional Director's Decision and Order on Determinative Challenged Ballots filed by the Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Regional Director found that the challenged ballot of Louis Lawes, Social Worker, GS-0185-11, should be opened and counted because, among other things, Lawes is not a management official or a confidential employee. The Labor Organization/Petitioner (the Union) filed an opposition to the application for review.

For the reasons set forth below, we grant the application in part and remand the case to the Regional Director to develop a record on which the Regional Director can determine, consistent with this decision, whether Lawes is a management official. We deny the application as to the Regional Director's findings that Lawes is not a confidential employee.

II. Regional Director's Decision

As found by the Regional Director, Louis Lawes is a professional social worker employed by the Activity as its Family Services Program Director. The Regional Director found that "[t]he purpose of the Family Service[s] Program is to provide assistance and services that support and enrich the lives of active duty and retired Coast Guard personnel and their families." Decision at 3. Further, he found that Lawes' job "is to assist the Chief, Military Personnel Division, by providing technical expertise in planning, evaluating, implementing, supervising, administering and promoting the Family Service[s] Program." Id.

The Regional Director also found that "as a collateral duty Lawes serves as the Employee Counseling and Assistance Program (ECAP) counselor for the 8th Coast Guard District." Id. According to the Regional Director, the purpose of ECAP is to help civilian employees with alcohol, drug and emotional problems. The Regional Director found that, as the ECAP counselor, Lawes is responsible for counseling, screening and referring employees to primary care specialists such as doctors, psychiatrists and drug and alcohol treatment programs. The Regional Director noted that Lawes has access to an employee's personnel file only with the written permission of that employee or by direction of Coast Guard management. The Regional Director further found that although Lawes will inform an employee's supervisor that the employee has contacted Lawes for assistance under the ECAP, Lawes "does not prepare written reports on individual ECAP counseling efforts." Id. at 4.

The Regional Director concluded that Lawes was not: (1) a management official; (2) an employee engaged in personnel work in other than a purely clerical capacity; or (3) a confidential employee. Consequently, the Regional Director ordered that Lawes' ballot be opened and counted.

In reaching his conclusion that Lawes was not a management official, the Regional Director stated that "it is clear that the Authority has determined that the performance of duties, which normally would warrant exclusion of an employee from a bargaining unit under the Statute if civilian employees were involved, does not warrant exclusion if the performance of those duties solely involves military personnel." Decision at 4. The Regional Director stated that the Authority's decision in Adjutant General of Michigan, Air National Guard, Battle Creek Michigan, 11 FLRA 66 (1983), established that because "military personnel are not considered 'employees' pursuant to the Statute. . . . those individuals who supervise only military personnel are not considered supervisors under 5 USC 7103 (a)(2) (sic) [of the Statute]." Id. The Regional Director also relied on U.S. Army District Recruiting Command-Philadelphia, 12 FLRA 409 (1983), which, he stated, established that "employees involved in recruiting and processing applicants for enlistment in the military reserves only . . . were not involved in civilian personnel work in other than a purely clerical capacity[.]" Id. The Regional Director concluded that because the Family Services Program applies only to military personnel and their families, Lawes "is not engaged in the type of work which would give rise to a conflict of interest between his job responsibilities and union representation[.]" Id.

The Regional Director also found that Lawes did not perform personnel work in other than a purely clerical capacity. The Regional Director based this conclusion on 832nd Combat Support Group, Luke Air Force Base, Arizona, 23 FLRA 768 (1986) (Luke AFB), which, according to the Regional Director, established that Equal Employment Opportunity (EEO) Counselors "who perform their work as collateral duties to their regular job are properly included in a bargaining unit, if among other factors, such work is not grade controlling, and such duties do not constitute their primary employment." Decision at 4. The Regional Director noted that Lawes devotes only 10 percent of his time to ECAP counselling duties and that such duties are not grade controlling because they are not mentioned in his official position description. Accordingly, the Regional Director concluded that "Lawes [did] not perform personnel work . . . and should not be excluded from the bargaining unit on this basis." Id. at 5.

Finally, the Regional Director noted that "the investigation failed to disclose any evidence that Lawes acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor relations." Id. Accordingly, the Regional Director found "that Lawes should not be excluded from the bargaining unit on this basis." Id.

III. Application for Review

The Activity seeks review of the Regional Director's decision on the grounds that: (1) a substantial question of law or policy is raised because of the absence of or a departure from Authority precedent, and (2) the Regional Director's decision on a substantial factual issue is clearly erroneous and the error prejudicially affects the rights of a party.

The Activity contends that although the Family Services Program applies only to military personnel and their families, the families include civilian personnel. Therefore, the Activity claims that the "Eighth District Family Services Program provides services to civilian employees and does not solely involve military personnel as suggested by the Regional Director." Application at 2-3. The Activity claims that the "Regional Director's erroneous decision on this factual issue prejudicially affected the rights of the Eighth Coast Guard District in that, but for this factual error, his decision would have been more favorable to the Eighth District." Id. at 3.

The Activity argues further that there is no legal basis for the Regional Director's conclusion that a management official is an individual who formulates, determines, or influences agency policies which involve only civilian employees. The Activity contends that the "Regional Director's apparently novel definition of management official is at variance with the Statute, not supported by its legislative history, and in conflict with Authority precedent." Application at 3.

The Activity also argues that the Regional Director has not shown that Lawes' ECAP duties were equivalent to the duties of the EEO counselors involved in Luke AFB. The Activity claims that in addition to providing counseling, Lawes "coordinates referrals, monitors the progress of clients, and assesses the effectiveness of the program." Id. at 7. The Activity contends that Lawes "is more equivalent to a Civil Rights Officer, a management official, than to an EEO counselor." Id. The Activity further alleges that unlike the EEO Counselors in Luke AFB, Lawes' duties are "involuntary and a regular, recurring, significant, and permanent part of his job." Id. The Activity contends that there is no Authority precedent addressing the bargaining unit status of ECAP counselors. Consequently, the Activity argues that this case "is a unique case which raises a substantial question of law or policy . . . because of the absence of Authority precedent.'" Id. at 8.

The Activity also contends that because the ECAP counselor plays a key role in assisting management in determining what actions to take to help an employee with substance abuse or psychological problems, there must be a confidential relationship between management and the ECAP counselor. The Activity contends that "this confidential relationship qualifies Mr. Lawes under the Statute for exclusion from unit membership." Id. at 9.

Finally, the Activity claims that Lawes' loyalty to fellow unit employees and the Union "might well compromise the objectivity of his professional judgments." Id. The Activity asserts that "[t]his possibility would be taken into account by management and would severely damage or make impossible the confidential relationship between the ECAP professional and management[.]" Id. The Activity also maintains that it would be a conflict of interest for a unit employee to be involved in disciplining unit employees or supervisors and that, therefore, the inclusion of Lawes in the unit would limit the effectiveness of the Eighth District counseling programs.

IV. Opposition

The Union contends that the Activity has provided no evidence to substantiate its claim that Lawes is a management official. The Union claims that Lawes is specifically prohibited "from issuing even letters that are statements of policy, interprets policy or obligates the Coast Guard." Opposition at 1. The Union further claims that in a recent meeting with his supervisors, Lawes was told "that policy oriented correspondence [was to] be signed by the section [sic] chief or higher." Id. at 2.

The Union also argues that there has been no evidence submitted by the Activity to show that Lawes was the ECAP coordinator for the Activity. Rather, the Union claims that the Activity misrepresented the facts by claiming that one of the documents included with its application contained evidence that Lawes was the ECAP coordinator. According to the Union, Lawes is voluntarily serving as the ECAP counselor.

According to the Union, Lawes' "relationship with all employees is [that of] a coworker [sic] and a social worker." Id. at 1. The Union notes that (1) to obtain an employee's personnel file, Lawes must obtain written consent from the employee, and (2) Lawes has never recommended disciplinary action for a unit employee. Accordingly, the Union contends that there is no incompatibility between Lawes' duties as a social worker and his membership in the bargaining unit.

V. Analysis and Conclusions

The issues before us are whether the Regional Director's decision that Lawes is neither a management official nor a confidential employee: (1) raises a substantial question of law or policy because of the absence of, or a departure from Authority precedent and/or (2) is clearly erroneous on a substantial factual issue so as to prejudicially affect the Activity's rights.

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 application concerning the Regional Director's findings that Lawes is not a confidential employee. We also conclude, however, that the Activity has established compelling reasons within the meaning of section 2422.17(c)(1) of the Authority's Rules and Regulations for granting the application for review concerning the Regional Director's decision that Lawes is not a management official.

A. Regional Director's Decision that Louis Lawes Is Not a Confidential Employee

Section 7103(a)(13) of the Statute defines a confidential employee as an individual who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor management relations. The Activity has provided no evidence to indicate that Lawes acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor management relations.

The application expresses disagreement with the Regional Director's finding that Lawes is not a confidential employee within the meaning of the Statute. The application does not, however, support the Activity's claim that, with respect to this finding, the Regional Director's decision departs from Authority precedent or is clearly erroneous on a substantial factual issue and that such error has prejudicially affected its rights. Accordingly, we deny the Activity's application for review to the extent that it challenges the Regional Director's findings that Lawes is not a confidential employee. See Headquarters, 1947th Administrative Support Group, U.S. Air Force, Washington, D.C., 14 FLRA 220, 225 (1984) (U.S. Air Force, Washington, D.C.).

B. Regional Director's Decision that Louis Lawes Is Not a Management Official

We conclude that the Activity's application for review raises a substantial question of law or policy because of the absence of Authority precedent on whether an individual is considered a management official under the Statute if he/she formulates, determines, or influences agency policies which involve only military employees.

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. Included within the definition of a management official under section 7103(a)(11) of the Statute are 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. Department of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172, 177 (1981)

In applying the statutory definition of a management official, the Authority has found that individuals who set policy of a military nature are management officials. See U.S. Air Force, Washington, D.C., 14 FLRA 220, 228-29 (1984); 934th Tactical Airlift Group (AFRES), Minneapolis-St. Paul International Airport, Minneapolis, Minnesota, 13 FLRA 549, 551 (1983); and Adjutant General of New Hampshire, State Military Reservation, Concord, New Hampshire, 157th Air Refueling Group, New Hampshire Air National Guard, 13 FLRA 88, 90 (1983). In none of these decisions, however, was an issue raised by the parties or addressed by the Authority as to whether the individuals involved were management officials because the policies they formulated, determined or influenced related solely to military matters or military personnel.

Accordingly, we find that a substantial question of law or policy is raised within the meaning of section 2422.17(c)(1) of the Authority's Rules and Regulations because of the absence of Authority precedent on whether an individual who formulates, determines or influences agency policies which apply only to military personnel is a management official within the meaning of section 7103(a)(11) of the Statute. Therefore, we grant the Activity's application for review of the Regional Director's decision that Lawes is not a management official because the Family Services Program applies only to military personnel and their families.

We conclude further that the statutory definition of management official does not exclude officials who determine military policy only. In this regard, we note first that section 7103(a)(11) of the Statute defines "management official" as an individual who is authorized to "formulate, determine, or influence the policies of the agency[.]" Nothing in the wording of section 7103(a)(11) supports a conclusion that officials who determine military policy only are excluded from the definition of management official. Similarly, nothing in the legislative history of the Statute supports that conclusion.

Second, previous Authority decisions finding that officials who supervised military personnel only were not "supervisors" within the meaning of section 7103(a)(10) of the Statute do not support the Regional Director's decision in this case. Section 7103(a)(10) of the Statute defines "supervisor" as an individual who, among other things, has the authority to "hire . . . or remove employees[.]" Under section 7103(a)(2) of the Statute, a member of the uniformed services is not an "employee" within the meaning of the Statute. Accordingly, it is clear that an official who supervises military personnel only does not satisfy the statutory definition of "supervisor" for purposes of exclusion from bargaining units.

Similarly, there is no inconsistency between our decision here and previous Authority decisions finding that officials who performed personnel work in connection with military personnel only were not excluded from bargaining units under section 7112(b)(3) of the Statute. Officials who perform personnel-related duties are not excluded from bargaining units when the "record does not support the premise that the work . . . has a direct impact on the [a]gency's own employees." Office of Personnel Management, 5 FLRA 238, 247 n.10 (1981). As noted above, members of the uniformed services are not "employees" within the meaning of the Statute. Personnel-related duties concerning military personnel only would not have a direct impact on "employees" and would not, therefore, result in an official's exclusion from a bargaining unit. See U.S. Army District Recruiting Command-Philadelphia, 12 FLRA 409 (1983).

We conclude, therefore, that the Regional Director erred in determining Lawes' status as a management official solely on the basis of the military nature of the Family

Services Program. We have reviewed the record and conclude that it does not contain sufficient evidence for us to make a determination regarding Lawes' status. Accordingly, we will remand this part of the case to the Regional Director to reopen the record and to obtain the evidence necessary to issue a decision and order as to whether Lawes is a management official within the meaning of section 7103(a)(11) of the Statute.

We further request that, on remand, the Regional Director clarify the Tally of Ballots on page 1 of his decision. It is unclear from the Tally of Ballots how many valid ballots were cast in voting group (a).

VI. Order

Pursuant to section 2422.17(g) of the Authority's Rules and Regulations, we grant the application for review of the Regional Director's decision that Louis Lawes is not a management official on the ground that there is a lack of Authority precedent on the issue of whether an individual is a management official under the Statute if he/she formulates, determines, or influences agency policies which involve only military personnel. This matter is remanded to the R