40:0264(27)CU - - DOE, HQ, Washington, DC and NTEU - - 1991 FLRAdec CU - - v40 p264



[ v40 p264 ]
40:0264(27)CU
The decision of the Authority follows:


40 FLRA No. 27

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF ENERGY

HEADQUARTERS

WASHINGTON, D.C.

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Petitioner)

3-CU-00018

ORDER GRANTING IN PART AND DENYING IN PART

APPLICATION FOR REVIEW

April 19, 1991

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 Agency under section 2422.17(a) of the Authority's Rules and Regulations. The Agency is seeking review of the Regional Director's (RD) Decision and Order on Petition for Clarification of Unit. The RD found that 32 individuals encumbering GM-15 level attorney positions in the Office of the General Counsel are not management officials within the meaning of section 7103(a)(11) of the Federal Service Labor-Management Relations Statute (the Statute) and should be included in the existing bargaining unit. The Petitioner (Union) filed an opposition to the application for review.

For the reasons set forth below, we grant the application as to the RD's finding that the GM-15 attorneys in the Finance Section of the Office of the Assistant General Counsel for Procurement and Finance, GC-34, are not management officials. We deny the application as to the RD's findings concerning all other GM-15 attorneys alleged to be management officials. We also find that the Agency's

claim that certain GM-15 attorneys are either supervisors or confidential employees under the Statute was not timely presented to the Regional Director, in accordance with section 2422.17(b) of the Authority's Rules and Regulations, and is not properly before the Authority.

II. Background and RD's Decision

The Union holds certification as the exclusive

representative in the following unit:

All professional and nonprofessional employees of the Department of Energy Headquarters in the Washington, D.C. metropolitan area excluding employees of the Federal Energy Regulatory Commission, confidential employees, employees engaged in Federal personnel work in other than a purely clerical capacity, management officials, and supervisors as defined in the order.

The Union filed the instant Clarification of Unit (CU) petition seeking to include the following in the bargaining unit: "GM-15 Attorney-Advisor (contract) - Carol Cowgill and all other GM-15 Attorney Advisory [sic] in the Office of the General Counsel." Authority Exhibit No. 1(a), Attachment. The record indicates that there are both supervisory and nonsupervisory GM-15 attorneys in the Office of the General Counsel. The petition here concerns only the nonsupervisory GM-15 attorneys.

The RD concluded that 32 individuals encumbering GM-15 attorney positions in eight offices within the Office of the General Counsel should be included in the existing bargaining unit because they are not management officials

within the meaning of section 7103(a)(11) of the Statute. The RD made no determinations with regard to the bargaining unit eligibility of other GM-15 attorneys in four additional General Counsel offices because no testimony was presented regarding their duties, responsibilities, and functions. No review was sought as to the RD's determination concerning these positions.

In reaching his determination that the incumbents in the eight offices within the Office of the General Counsel are not management officials, the RD relied on the Authority's decision in Department of the Navy, Automatic

Data Processing Selection Office, 7 FLRA 172 (1981) (Navy, ADP). In that case, the Authority defined "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 the definition set forth in Navy, ADP to this case, the RD found that the incumbents do not perform duties which either require or authorize them to formulate, determine, or influence the Agency's policies. The RD found that attorneys in the Office of the General Counsel, including the incumbents, perform essentially the same duties, although the GM-15 attorneys work more independently and are assigned more complex cases with more responsibility than lower-graded attorneys. The RD also found that the GM-15 attorneys make recommendations as to the implementation of Agency policies, regulations, and program activities, but that in performing these functions, they act as highly skilled attorneys providing legal advice and recommendations concerning their respective areas of expertise. Finally, the RD found that the recommendations

and work products of the GM-15 attorneys were reviewed by several supervisory levels and did not extend to a point of creating, settling upon, or bringing about the Agency's policy or course of action.

III. The Application for Review

The Agency seeks review of the RD'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 RD's decision on a substantial factual issue is clearly erroneous.

The Agency challenges the RD's findings that the attorneys are not management officials. The Agency contends, based on Navy, ADP, that "[t]here is ample testimony in the record that some of the GM-15 attorneys in this case, and potentially all of them, clearly meet one or more of the above three criteria for the status of 'management official'." Application for Review at 18. The Agency argues that the attorneys are management officials because they "participate in the formulation or determination of agency policy and influence that policy as it is developed and refined." Id. The Agency also asserts that the attorneys are management officials because they assist in shaping, rather than simply implementing, the Agency's policies. The Agency claims that the RD placed "undue stress" on the fact that the work of the GM-15 attorneys is subject to review and being overruled. The Agency notes that under Authority precedent set forth in Department of Agriculture, Food and Nutrition Service, Alexandria, Virginia, 34 FLRA 143 (1990) (Agriculture, Food and Nutrition), the degree of higher level review or approval is simply one factor to consider in determining whether an employee is a management official, but is not the sole factor.

The Agency also contends that certain of the attorneys are supervisors and confidential employees under the Statute, and must be excluded from the unit on that basis. The Agency acknowledges that the hearing on the CU petition was based on whether or not the employees are management officials. However, the Agency asserts that the record contains substantial evidence concerning its contention and, as the evidence was heard by the RD, and addressed by the Union in its post-hearing brief, the contention is properly before the Authority at this time.

IV. The Opposition to the Application

The Union contends that the Agency has failed to submit compelling reasons for granting review of the RD's decision under section 2422.17(c) of the Authority's Rules and Regulations.

First, the Union argues that the RD's decision is consistent with Authority precedent in Navy, ADP. Second, the Union argues that the RD did not deviate from Authority precedent as set forth in Agriculture, Food and Nutrition, because the RD based his findings on all of the duties and responsibilities of the GM-15 attorneys, not just on the fact that their work was subject to higher level review.

The Union also argues that the Agency is precluded by section 2422.17(b) of the Authority's Rules and Regulations from asserting, for the first time in its application for review, that the GM-15 attorneys are either supervisors or confidential employees under the Statute. The Union states that "[t]here was no testimony elicited before the Regional Director on these factual allegations." Opposition at 7. However, the Union also sets forth arguments concerning the Agency's claim that one employee is a confidential employee.

V. Analysis and Conclusions

For the following reasons, we conclude that the Agency 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, only as it concerns the GM-15 attorneys in the Finance Section of the Office of the Assistant General Counsel for Procurement and Finance, GC-34. We find that the RD's decision that the employees are not management officials raises a substantial question of law or policy because of a departure from Authority precedent.

We further conclude, however, 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 RD's findings that the remaining GM-15 attorneys in dispute are not management officials and should be included in the unit.

Finally, we conclude that the Agency's contention that certain GM-15 attorneys are supervisors or confidential employees is not properly before the Authority.

A. Attorneys Alleged to be Management Officials

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." As the Authority stated in Navy, ADP, 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 at 177. As the Authority also stated in Navy, ADP, the term "'to influence'" is synonymous with "'to effectively influence[,]'" and means "to bring about or to obtain a result." Id. at 174, 175.

Except for the attorneys in the Finance Section of the Office of the Assistant General Counsel for Procurement and Finance, GC-34, we agree with the RD that the attorneys are not management officials.

With regard, first, to the attorneys outside the Finance Section, the record indicates that some or all of these employees are engaged in the following activities: providing legal advice on energy-related matters; participating in litigation on behalf of the Agency; serving on various committees and panels; drafting regulations and other documents; and negotiating interagency and settlement agreements and Agency contracts relating to patents and copyrights.

The RD found that the attorneys were not management officials because they did not perform duties which require or authorize them to formulate, determine, or influence the Agency's policies within the meaning of section 7103(a)(11) of the Statute. The RD found that the GM-15 attorneys act as highly skilled attorneys who provide legal advice and recommendations concerning their respective areas of expertise and that their recommendations do not extend to a point of creating, settling upon, or bringing about the Agency's policy or course of action.

The Agency, in its application for review, argues that the attorneys participate in the formulation or determination of policy and influence what the policy will be and, thus, shape the Agency's policy.

In our view, the record establishes that the attorneys do not function as management officials. Instead, they serve as highly trained experts who provide legal advice and assistance within their areas of knowledge and who represent the Agency in various capacities.

For example, the attorneys render legal advice to the Agency officials who promulgate policy and engage in litigation activities on behalf of the Agency. In this manner, the attorneys are involved in providing expertise and implementing, rather than shaping, the Agency's policies. See U.S. Department of Housing and Urban Development, Boston Regional Office, Region I, Boston, Massachusetts, 16 FLRA 38, 39 (1984) (employees classified as GM-Attorney Advisors (General) are highly trained and experienced professionals who handle litigation on behalf of the agency, provide legal expertise and interpret agency policies and are not management officials); Merit Systems Protection Board, 12 FLRA 137, 140 (1983) (employees classified as Attorney-Examiners, General Attorneys, and Trial Attorneys (General) who provide legal advice and make recommendations on policy issues do not influence the establishment of agency policy, as their work is directed by a superior and their recommendations are reviewed as those of experts or professionals rather than those of management officials); Equal Employment Opportunity Commission, 9 FLRA 973, 975 (1982) (employees classified as General Attorneys, Attorney Examiners, and Attorney Advisors (Civil Rights) found to be professionals whose actions assist in implementing, as opposed to shaping, the agency's policies).

Similarly, as to the function of serving on committees and panels, the record establishes that the attorneys engaged in this activity act as resource persons providing technical expertise, rather than formulating or effectively influencing the Agency's policy. See U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 12 FLRA 358, 359 (1983) (employees serving on committees act as resource persons to those who make policy and are not management officials). Compare, U.S. Coast Guard, Headquarters, Washington, D.C., 7 FLRA 743, 744-45 (1982) (employee who serves as chairman of international work group and makes policy recommendations found to be a management official).

As to the conduct of employees in drafting regulations and other documents, the record indicates that the employees are utilizing their technical expertise in developing regulations or preparing documents, but that the attorneys

do not establish the Agency's policy. See, for example, Department of the Interior, U.S. Fish and Wildlife Service, Patuxent Wildlife Research Center, Laurel, Maryland, 7 FLRA 643, 648 (1982) (employees who provide input into the agency's national hunting regulations are simply experts or professionals rendering resource information). Compare Headquarters, Space Division, Air Force Systems Command, Department of the Air Force, Department of Defense, 9 FLRA 885, 888 (1982) (Space Division) (employees who have responsibility for authoring and interpreting regulations which set forth agency policy are management officials). Generally, signatory authority for these documents resides at higher levels within the Agency. On the one occasion when an employee signed off on a document, the record indicates that the attorney did not have full responsibility for the contents of the document.

With regard to the negotiation of settlement and other agreements, the record establishes that the employees act as highly skilled professionals in implementing the Agency's policy objectives. In fact, the Agency acknowledges that employees who negotiate patent waivers, for example, do so within guidelines and statutory constraints.

Finally, we note, as did the RD, that by virtue of their expertise, the attorneys frequently work independently and with little direct supervision. These facts, however, reflect that the attorneys are highly skilled professionals but do not establish that the employees formulate or effectively influence the Agency's policy within the meaning of section 7103(a)(11) of the Statute. Additionally, we note, contrary to the Agency, that the RD did not place "undue stress" on the fact that the work of the GM-15 attorneys is subject to review and being overruled. Rather, the RD's determinations were based on all his findings concerning the duties and responsibilities of the attorneys.

In sum, we conclude that the RD properly found that the attorneys are not management officials and should be included in the unit.

However, as to the attorneys in the Finance Section of the Office of the Assistant General Counsel for Procurement and Finance, GC-34, the record establishes that they are management officials.

The RD found that the GM-15 attorneys in the Finance Section review written products for legal sufficiency; serve as legal advisors on task forces with Agency

representatives; provide legal advice to the General Counsel and Agency officials on finance matters; and provide recommendations on Agency finance programs and activities.

In its application for review, the Agency argues that the attorneys have wide discretion to act for the General Counsel and the Agency involving alternative fuels matters; make independent and unreviewed decisions; draft final documents; take independent action with regard to multi-million dollar properties; have independent signatory authority; represent the Agency at multi-party negotiations over loan guarantees and property closings; meet with and advise the Under Secretary and Deputy Secretary of the Agency; substantively influence the formulation of Agency policies by providing valued advice; and have authority to override the role of the program and contracting officers.

The record indicates that these attorneys effectively influence courses of action for the Agency. Thus, the attorneys have wide discretion to act for the General Counsel and the Agency, making independent and unreviewed decisions with regard to energy matters. In this connection, the attorneys also have full signatory authority to bind the Agency. By way of example, the record indicates that one of the attorneys made decisions on behalf of the Agency with regard to the foreclosure of a multi-million dollar barge terminal facility and also made decisions concerning the disposal of various alternative fuel plants. Both the decisions made and the documents subsequently prepared were signed by the attorney on behalf of the Office of the General Counsel. The signatory authority exercised is unlike that of the other attorneys found not to be management officials because, in this instance, the employee had full authority to decide the course of action on behalf of the Agency. See Headquarters, 1947th Administrative Support Group, U.S. Air Force, Washington, D.C., 14 FLRA 220, 228-29 (1984) (employees with signatory authority to bind the United States on decisions made at international conferences regarding the development of airlift procedures, in the area of budget allocation for supply and equipment to Air National Guard units, and with regard to payments to various organizations and programs totalling in the millions of dollars, found to be management officials); Space Division, 9 FLRA at 888 (employees who negotiate and administer contracts with final signatory authority to bind the agency and its resources held to be management officials).

The record also indicates that one of the attorneys made decisions concerning financial closings involving the

sale of assets and the disposal of property, and negotiated bankruptcy-type settlement agreements. The attorneys also have the authority to override the action of program offices by withholding concurrence on the particular program matter, thus influencing the course of action the Agency takes.

In sum, we find that the attorneys in the Finance Section influence Agency policy by creating and bringing about Agency policy determinations. Accordingly, the GM-15 attorneys in the Finance Section of the Office of the Assistant General Counsel for Procurement and Finance are management officials under the Statute and should continue to be excluded from the bargaining unit.

B. Attorneys Alleged to be Supervisors or

Confidential Employees

Finally, the Agency contends that certain attorneys are supervisors or confidential employees and should be excluded from the unit on that basis. The Union argues that the Agency is precluded from asserting this claim, for the first time, in its application for review.

Section 2422.17(b) of the Authority's Rules and Regulations states, in pertinent part, that:

An application may not raise any issue or allege

any facts not timely presented to the Regional

Director.

We find that the Agency did not timely present to the Regional Director the contention that certain employees are supervisors or confidential employees. Rather, the Agency raised this issue, for the first time, in its application for review. Consequently, under our Rules and Regulations, the issue is not properly before us. The Agency's assertion that the record contains evidence to support its contention does not establish that the issue was timely raised, as is required by our Regulations.

VI. Order

We grant the application for review as to the RD's finding that the GM-15 attorneys in the Finance Section of the Office of the Assistant General Counsel for Procurement and Finance, GC-34, are not management officials. We find that these GM-15 attorneys are management officials and should continue to be excluded from the bargaining unit.

We deny the application as to the RD's findings that the other GM-15 attorneys are not management officials. We also find that the Agency's contention that certain GM-15 attorneys are either super