37:1151(99)CU - - Labor, Mine Safety and Health Administration, Washington, DC and AFGE Local 12 - - 1990 FLRAdec RP - - v37 p1151



[ v37 p1151 ]
37:1151(99)CU
The decision of the Authority follows:


37 FLRA No. 99

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF LABOR

MINE SAFETY AND HEALTH ADMINISTRATION

WASHINGTON, D.C.

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 12

(Labor Organization/Petitioner)

3-CU-90033

ORDER DENYING APPLICATION FOR REVIEW

October 22, 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 Labor (the Agency) under section 2422.17(a) of the Authority's Rules and Regulations. The Agency seeks review of the Regional Director's Decision and Order on Petition for Clarification of Unit (CU) finding that seven employees employed in four job positions are not management officials within the meaning of section 7103(a)(11) of the Federal Service Labor-Management Relations Statute (the Statute) and, therefore, should be included in the unit.(1) The Petitioner (Union) did not file a timely opposition to the Agency's application for review.(2) For the reasons set forth below, we deny the Agency's application.

II. Background and Regional Director's Decision

The Union, the exclusive representative for a unit of employees located in the Activity's offices in the Washington, D.C. metropolitan area, filed a CU petition under section 7111(b)(2) of the Statute. The Union sought to clarify the existing unit to include, inter alia, seven employees employed in the positions of Program Analyst, Mining Engineer, Electrical Engineer, and Industrial Hygienist. The Activity asserted that these employees should be excluded from the unit because they are management officials within the meaning of section 7103(a)(11) of the Statute. On June 29, 1990, the Regional Director issued his Decision and Order on Petition For Clarification of Unit, finding that the seven employees are not management officials and, therefore, that they should be included in the unit.

1. Program Analyst, GM-345-14, Earnest Teaster, Kenneth Bullock, John S. Curtis

The Regional Director found that these employees are employed in the Activity's Office of Program, Policy and Evaluation (OPPE), which coordinates and evaluates the overall effectiveness of the Activity's accountability program.

The Regional Director found that, with Bullock's assistance and coordination, OPPE has developed an accountability program handbook. The Regional Director further found that under the accountability program, the administrators of Coal Mine Safety and Health Operations and Metal and Nonmetal Mine Safety and Health Operations conduct annual reviews of their programs. The Regional Director concluded that as GM-345-14 Program Analysts, Teaster, Bullock and Curtis: (1) provide assistance and guidance to the review teams; (2) review the teams' work to ensure compliance with the accountability program handbook; (3) conduct periodic spot reviews to ensure that corrective action has been completed in areas identified by the review team; and (4) at times conduct reviews of specific program areas. The Regional Director noted that the three employees utilize the procedures of the handbook in conducting these reviews.

The Regional Director also found that Teaster, Bullock and Curtis prepare reports for the responsible administrator when the reviews are completed setting forth their findings and recommendations, and that the decision to implement their recommendations is left to the responsible administrator. The Regional Director concluded that the record evidence did not establish that the three employees are management officials within the meaning of the Statute. He found that: (1) their primary role is to ensure that the Activity's accountability program is properly implemented; (2) their work does not require or authorize them to formulate, determine or influence the Activity's policies within the meaning of section 7103(a)(11) of the Statute; and (3) none of them makes independent decisions as to what the Activity's policies will be, but instead they make reports and recommendations concerning the status of existing policies. Relying on U.S. Coast Guard Headquarters, 7 FLRA 743 (1982), the Regional Director concluded that the record established that Teaster, Bullock and Curtis are not managerial employees but rather are valuable and knowledgeable resource persons whose actions assist in implementing, as opposed to shaping, the Mine Safety and Health Administration (MSHA) policies. Decision at 8-9. The Regional Director held, therefore, that the positions held by Bullock, Teaster, and Curtis should be included in the unit.

2. Mining Engineer, GM-880-14, John Waxvik

The Regional Director found that Waxvik is employed in the Activity's Safety Division, Metal and Nonmetal, and that he spends the majority of his time drafting proposed decisions and orders in response to appeals filed by mine operators. The Regional Director noted that Waxvik's draft decisions and orders are reviewed by his supervisor, who forwards them to the administrator for his signature.

The Regional Director concluded that Waxvik is not a management official within the meaning of the Statute. The Regional Director found that the evidence showed that Waxvik does not formulate or determine Activity policies. Rather, the Regional Director found that Waxvik is a highly skilled expert on metal and nonmetal technical safety issues whose influence is limited to that of an expert rendering technical safety advice. The Regional Director further found that while the record revealed that Waxvik's recommendations are "usually accepted," they are subject to successive levels of review. Id. at 10. The Regional Director relied on the Authority's decision in Defense Communications Engineering Center, Reston, Virginia, 8 FLRA 702 (1982), and found that Waxvik is not a managerial employee. Accordingly, he concluded that this position should be included in the unit.

3. Electrical Engineer, GM-850-14, Salwa El Bassioni

The Regional Director found that El Bassioni is a Senior Electrical Engineer in the Activity's Office of Technical Support and that she serves as an expert consultant concerning the approval, certification and acceptance of mine safety equipment. The Regional Director found that when the Approval and Certification Center proposes mine safety policy, El Bassioni reviews the draft for conformance with electrical engineering practices and principles.

The Regional Director concluded that El Bassioni is not a management official within the meaning of the Statute. He found that the record showed that her job is that of an electrical engineer who provides technical information which assists in the implementation, as opposed to the shaping or determination, of the Activity's policies. Accordingly, the Regional Director concluded that this position should be included in the unit.

4. Industrial Hygienist, GM-690-14 Margie Zalesak and James Petrie

The Regional Director found that Zalesak and Petrie are employed as Industrial Hygienists in the Activity's Health Division of Metal and Nonmetal. The Regional Director found that both are experts in their particular field; both conduct seminars for mine operators and handle public requests for information; both assist in the development of the Activity's safety policies in their field of expertise; and both can recommend technical revisions to the Activity's safety procedures and policies. He further found that neither can independently establish or implement safety and health measures, and that their recommendations are subject to successive levels of review and approval.

After considering the evidence, the Regional Director concluded that the employees are not management officials within the meaning of the Statute; rather they are highly trained professionals whose jobs are to provide advice and recommendations concerning their area of expertise. He found that neither has authority to independently promulgate Activity policies or to impose their views on Activity managers. He concluded, therefore, that their positions should be included in the unit.

III. The Application for Review

The Agency contends that compelling reasons, within the meaning of section 2422.17(c)(1) and (4) of the Authority's Rules and Regulations, exist for granting its application for review. The Agency claims that the Regional Director's decision: (1) departs from Authority precedent with regard to the definition of management official, thereby raising a substantial question of law; and (2) "is clearly erroneous on a substantial factual issue and that error has prejudiced the [Agency's] rights." Application at 1.

The Agency contends that the record evidence establishes that the three Program Analysts, found not to be management officials by the Regional Director, are management officials within the meaning of section 7103(a)(11) of the Statute. The Agency contends that the "only analysis provided by the Regional Director regarding his conclusion is that '[n]one of these individuals make independent decisions as to what Activity policies will be, but instead make reports and recommendations concerning the status of existing policies.'" Id. at 8, quoting Regional Director's Decision at 9.

The Agency contends that this determination is not supported by the record. The Agency asserts that the "evidence shows that the analysts' responsibilities with regard to the accountability program require them to make independent decisions regarding the content of the program." Id. According to the Agency, this is "evidenced by their responsibilities regarding the accountability program, as to which they are free to implement changes as needed, as well as by their conduct of special studies . . . which require that they make recommendations regarding courses of action." Id. at 9.

The Agency next asserts that the record evidence is contrary to the Regional Director's conclusion with respect to Waxvik, who encumbers the position of Mining Engineer, GM-880-14. The Agency states that the Regional Director found that Waxvik was not a management official because, "while he is a highly skilled expert, his influence with respect to [A]gency policy is limited to that of an expert rendering technical safety advice, and that while his recommendations are 'usually' accepted, they are subject to successive levels of review." Id. at 11. The Agency argues that the evidence demonstrates that Waxvik not only renders expert advice but also applies "analysis and judgment" to the circumstance at issue. Id. at 11-12. The Agency also contends that the Regional Director "ignored the fact" that Waxvik acts in place of his supervisor on the average of 3 days a month. Application at 12.

The Agency contends that the employee's draft decisions and orders are not "usually" accepted, as the Regional Director found, but have "always been accepted." Id. (emphasis in original). Citing Department of the Interior, Bureau of Mines, Twin Cities Research Center, Twin Cities, Minnesota, and AFGE Local 2249, 9 FLRA 109 (1982) (Bureau of Mines), the Agency claims that the Authority has held that the exercise of independent judgment by an employee whose recommendations are "generally" implemented renders that employee a management official. Id. The Agency asserts, therefore, that the Regional Director "not only ignored the record evidence, but did not properly apply Authority precedent." Id.

As to the Industrial Hygienist, GM-690-14 positions encumbered by Zalesak and Petrie, the Agency states that the Regional Director found that "neither [employee] had the authority to 'independently promulgate Activity policies nor do they have authority to impose their views on Activity managers.'" Id. at 15, quoting Regional Director's Decision at 17-18. The Agency contends that the Authority has never held that an employee must be able to promulgate policies independently or be able to impose the employee's views on managers to be a management official. The Agency claims that both employees are in the position of formulating, determining, and influencing agency policy within the meaning of the definition of management official. The Agency also contends that the Regional Director ignored the "substantial amount of time" that each employee spends acting in place of his or her supervisor. Id. at 16.

Finally, the Agency asserts that El Bassioni, who encumbers the position of Electrical Engineer, GM-850-14, influences Agency policy and, therefore, should be excluded from the unit as a management official. The Agency contends that the Regional Director "determined that she was not a management official because she provides the technical information that assists in the implementation or determination of the Agencies policies, as opposed to shaping or determining such policies." Id. at 18. The Agency contends that the Regional Director's conclusion ignores "the role that the ability to influence [A]gency policy has in the determination of whether an employee is a management official." Id. The Agency asserts that the evidence establishes that El Bassioni exerts great influence on Agency policy.

IV. Analysis and Conclusions

Upon careful consideration of the application for review, we conclude that no compelling reasons exist within the meaning of section 2422.17(c) of our Rules and Regulations for granting the application. We find that no substantial question of law is raised by reason of a departure from Authority precedent, and we find that the Regional Director's decision on substantial factual issues has not been shown to be clearly erroneous or to have prejudicially affected the Agency's rights. The Agency's contentions concerning all of the disputed positions constitute mere disagreement with the Regional Director's factual findings and his application of Authority precedent to those facts.

In particular, we find that no substantial question of law is raised by reason of a departure from Authority precedent with respect to the Regional Director's finding concerning the encumbered position of Mining Engineer, GM-880-14. The Agency contends that the Authority has held that the exercise of independent judgment by an employee whose recommendations are "generally" implemented renders that employee a management official. In the case cited by the Agency as an example of this assertion and the Regional Director's failure to follow Authority precedent--Bureau of Mines--the Authority based its eligibility determinations on record evidence as to the totality of the duties performed by incumbents and found that certain employees were management officials within the meaning of section 7103(a)(11).

In the instant case the Regional Director, applying Authority precedent, found that the record evidence did not establish that the employee is a management official. The Regional Director found that: (1) the employee is a highly skilled expert on Metal and Nonmetal technical safety issues; (2) the employee does not formulate or determine Activity policies and his influence is limited to that of an expert rendering technical safety advice; and (3) while the employees's recommendations are usually accepted, they are subject to successive levels of review. In our view, the Agency expresses mere disagreement with the Regional Director's factual findings as to the Mining Engineer, which are based on the record evidence, and the Agency has not shown these findings to be clearly erroneous.

Further, we reject the Agency's assertion that the Regional Director's decision with respect to the encumbered Industrial Hygienist, GM-609-14 positions warrants review because it suggests that an employee must be able to promulgate policies independently or be able to impose the employee's views on managers to be a management official. We do not read the Regional Director's decision in this manner. The Regional Director found, inter alia, that the Industrial Hygienists can recommend technical revisions to the Activity's safety procedures and policies, but that neither of them could independently establish or implement safety and health measures. He found that their recommendations are subject to successive levels of review and approval. He concluded, based on the evidence, that the employees are not management officials within the meaning of the Statute, but instead are highly trained professionals whose jobs are to provide advice and recommendations concerning their area of expertise. Thus, the Regional Director's determination that the incumbents are not management officials was based on all his findings concerning the employees' duties and responsibilities, including his findings concerning the employees' authority with respect to Activity policy.

As to the Agency's contentions concerning the Regional Director's factual findings and conclusions with respect to the encumbered positions of Program Analyst, GM-345-14 and Electrical Engineer, GM-850-14, we find, as stated above, that the Agency's contentions constitute mere disagreement with the Regional Director's factual findings and his application of Authority precedent to those facts.

For the foregoing reasons, we deny the application for review. The application expresses nothing more than disagreement with the Regional Director's factual findings, which are based on record evidence and have not been shown to be clearly erroneous or to have prejudicially affected the Agency's rights, and with his application of Authority precedent to those facts.

In so concluding, we emphasize that our Regulations provide that the Authority "may grant an application for review [of a Regional Director's Decision and Order] only where it appears that compelling reasons exist therefor." 5 C.F.R. § 2422.17(c) (emphasis added). The Regulations provide four narrow grounds on which an application for review may be granted. Id. In considering whether to grant an application for review, the issue before the Authority is not whether the Authority would have made the same determinations that the Regional Director made but rather, whether the application meets any of the grounds set forth in the Regulations. See United States Department of Justice, Immigration and Naturalization Service, Western Regional Office, 20 FLRA 71 (1985).

V. Order

The application for review of the Regional Director's decision and order is denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Regional Director also clarified the unit with resp