46:1457(140)RP - - Agriculture, Federal Crop Insurance Corporation, Washington Regional Office and NFFE Local 858 - - 1993 FLRAdec RP - - v46 p1457



[ v46 p1457 ]
46:1457(140)CU
The decision of the Authority follows:


46 FLRA No. 140

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF AGRICULTURE

FEDERAL CROP INSURANCE CORPORATION

WASHINGTON REGIONAL OFFICE

(Activity/Petitioner)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 858

(Labor Organization/Union)

WA-CU-20449

ORDER DENYING APPLICATION FOR REVIEW

February 19, 1993

_____

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 Activity under section 2422.17(c) of the Authority's Rules and Regulations. The Activity seeks review of the Regional Director's Decision and Order on Petition for Clarification of Unit. The Regional Director (RD) found that the employees encumbering seven different positions within the Activity were 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 Petitioner's existing bargaining unit. The Union filed an opposition to the application for review.

For the reasons set forth below, we will deny the Activity's application.

II. Background and Regional Director's Decision

The Union is the exclusive representative of a unit of nonprofessional employees of the Activity in the Washington, D.C., metropolitan area. The Activity filed a petition with the RD under section 7111(b)(2) of the Statute seeking to clarify the existing unit to exclude employees in seven different positions on the basis that they are management officials within the meaning of section 7103(a)(11) of the Statute.(*) The seven positions at issue are: Hearing Officer, Appeals and Litigation Branch; Insurance Management Specialist, Reinsurance Contract Division; Computer Specialist, Information Resources Management Division; Management Analyst, Information Resources Management Division; Insurance Management Specialist, Claims Services Division; Financial Specialist, Comptroller Division; and Crop Insurance Underwriter, Field Underwriting Services Division.

The RD concluded that the employees in the seven disputed positions are not management officials within the meaning of the Statute and should be included in the bargaining unit.

1. Hearing Officer, Appeals and Litigation Branch

The RD determined that the seven disputed Hearing Officers in the Appeals and Litigation Branch are primarily engaged in providing a technical review of field level actions by "reviewing and evaluating prior management decisions and Activity crop policies and applying such precedent to the specific facts of an appeal." RD Decision at 5. The RD noted that, although Hearing Officers address many matters of first impression, they apply "established Activity policy and . . . have no authority to change or overrule existing policies or procedures of the Activity." Id. at 4 (footnote omitted). In addition, the RD found that after a decision is rendered by a Hearing Officer, "there is a review by the Chief of the Branch for any errors in the decision-making process or the basis on which the decision was made." Id. at 3. According to the RD, a disappointed appellant "may seek a second level of appeal" before a second level Hearing Officer, and "[i]f [that] appeal is unsuccessful . . . the appellant can still obtain relief through the Federal Courts or through the Manager of the Activity . . . ." Id. at 4.

The RD found that although the "Hearing Officers act as resource persons for higher level management and may recommend changes in the Activity's policies or procedures . . . their recommendations are reviewed by a number of higher levels [and they] . . . have no authority to direct or commit the Activity on a certain course of action." Id. at 5. Consequently, the RD concluded that "Hearing Officers are not management officials in that they do not exercise any duties or responsibilities which require them to formulate, determine or influence the policies of the Activity within the meaning of section 7103(a)(11) of the Statute . . . ." Id. at 5-6.

2. Insurance Management Specialist, Reinsurance Contract Division

The RD found that the two disputed Insurance Management Specialists in the Reinsurance Contract Division are "generally assigned six different reinsurance companies and contractors and act[] as the Activity's liaison with these companies concerning the administration of the reinsurance agreements and sales and service contracts." Id. at 6. However, the RD also found that a specialist "does not have authority to award a contract and only recommends to the Division supervisor as to whether a contract should be awarded." Id. at 6-7. Similarly, the RD found that the incumbents review cases involving litigation against crop insurance companies and "make a recommendation to the Division as to whether or not the Activity should support the company defending the lawsuit." Id. at 7. The RD found that, although "[t]he incumbent[s] prepare position papers, policy options and alternatives with respect to the Activity's position concerning a certain insurance program[,]" any recommendation for a policy change "must [be] submit[ted] through [supervisory] channels to the Activity's management." Id. at 7, 8. In this connection, the RD determined that the "incumbent[s] do[] not supervise other individuals, do[] not have the authority to spend Activity funds and do[] not have the authority to change, alter or amend Activity policies or procedures." Id. at 8.

The RD concluded that Insurance Management Specialists are not management officials because they "assist in implementing, as opposed to shaping, the Activity's policies." Id. The RD noted that "evidence showed that the incumbents have no authority to direct or commit the Activity on a certain course of action." Id. at 9.

3. Computer Specialist, Information Resources Management Division

The RD found that the two disputed Computer Specialists in the Information Resources Division are "primarily involved in reviewing and evaluating the Activity's technical requirements concerning telecommunications . . . ." Id. at 10. The RD also found that, although the specialists "prepare reports and make recommendations to the Activity concerning its participation in different programs or in its use of different systems[,]" these recommendations must be made to the Branch Chief, Division Director or Assistant Manager because the incumbents "are not the final decision-making authority." Id. at 9-10 (footnote omitted).

The RD concluded that the Computer Specialists are not management officials within the meaning of the Statute because they have "no authority to direct or commit the Activity on a certain course of action and their positions[s] [are] geared more toward support and implementation rather than planning and policy-making." Id. at 11. The RD also concluded that the specialists' "recommendations are reviewed by higher levels with the ultimate decisions respecting implementation being with the Activity's Manager." Id.

4. Management Analyst, Information Resources Management Division

The RD found that the one disputed Management Analyst in the Information Resources Management Division "reviews decisions of the Activity for improving and approving the Activity's new computer system." Id. (footnote omitted). The RD found that the incumbent in this position coordinates work groups and writes brochures, public advertisements and telephone directories. In addition, the RD found that, although the incumbent "may act as a resource person for higher level management and may recommend changes in the Activity's policies or procedures[,] . . . such recommendations are reviewed by higher levels with the ultimate decisions respecting implementation being with the Activity's Manager." Id. at 12. The RD determined that the incumbent has no "authority to bind the Activity by entering into contracts and has no final decision-making authority." Id.

The RD concluded that the Management Analyst is not a management official within the meaning of the Statute, and therefore, should be included in the unit. The RD based this conclusion on his findings that the incumbent "has no authority to direct or commit the Activity on a certain course of action and the [incumbent's] position is geared more toward support and implementation rather than planning and policy-making." Id. at 12-13.

5. Insurance Management Specialist, Claims Services Division

The RD found that the one disputed Insurance Management Specialist in the Claims Services Division is "responsible for investigating and responding to specific Congressional inquiries[]" and that such responses are "based upon the Activity's established policies and procedures concerning claims and loss adjustment[,] in addition to precedents and past decisions issued by the Activity." Id. at 13-14 (footnote omitted). The RD also found that "the incumbent is a highly skilled individual whose expertise is relied upon by the Activity when writing interpretive bulletins of established Activity procedures." Id. at 14. Further, according to the RD, although "[t]he incumbent [also] drafts Manager's Bulletins for approval by the Activity on matters which may not have established procedures[,] . . . the incumbent's work product is subject to several levels of review by Activity managers and the incumbent does not have the authority to effect any change within the Activity other than submitting recommendations . . . for [management] approval." Id. The RD found that, although the incumbent acts as a representative for the Activity at certain meetings, the incumbent "does not have any authority to bind the Activity to any course of action." Id.

The RD concluded that the Insurance Management Specialist is not a management official within the meaning of the Statute because he "assists in implementing, as opposed to shaping, the Activity's policies. Id. at 15. The RD determined that "the incumbent has no authority to direct or commit the Activity on a certain course of action and the position is geared more toward support and implementation rather than planning and policy-making." Id.

6. Financial Specialist, Comptroller Division

The RD found that the one disputed Financial Specialist in the Comptroller Division "serves as one of the Comptroller's staff assistants[,] . . . reviews reports and proposed regulations and makes comments and recommendations to the Comptroller concerning matters which may have a financial impact on the Activity based upon established Activity procedures and policies." Id. at 15-16 (footnotes omitted). The RD also found that although "the incumbent has, at times, substituted for the Comptroller during his absence[,]" and has "represent[ed] the Comptroller at productivity type meetings [and briefings,] . . . [the incumbent] has no authority to bind the Comptroller to any specific course of action." Id. at 16. Further, the RD found that, although the incumbent may "act as a resource person for higher level management and may recommend changes in the Activity's policies or procedures[,] . . . such recommendations are reviewed by higher levels with the ultimate decision respecting implementation being with the Activity's Comptroller or Manager." Id. at 17-18.

The RD concluded that the Financial Specialist is not a management official within the meaning of the Statute and, therefore, should be included in the bargaining unit. The RD based this conclusion on his findings that the incumbent "has no authority to direct or commit the Activity on a certain course of action and the [incumbent's] position is geared more toward support and implementation rather than planning and policy-making." Id. at 18.

7. Crop Insurance Underwriter, Field Underwriting Services Division

The RD found that the one disputed Crop Insurance Underwriter in the Field Underwriting Services Division is "primarily involved in reviewing and evaluating matters having an impact upon the underwriting services of the Activity[.]" Id. at 19. According to the RD, the incumbent formulates "guidelines and recommendations subject to review by the Division Director and final approval and implementation by the Activity's Assistant Manager for Insurance." Id. The RD found that the incumbent "provides guidance to businesses and reinsurance companies" on underwriting procedures based on existing agency policy, "prepares bulletins for the Activity Manager's approval and prepares letters to Congressmen and companies." Id. at 18. The RD also found that, although the incumbent has substituted for the Director of the Division, "[t]he incumbent does not have the authority to bind the Activity to any particular course of action." Id. at 19.

The RD concluded that the Crop Insurance Underwriter is not a management official within the meaning of the Statute and, therefore, should be included in the unit. The RD based this conclusion on his findings that the incumbent "has no authority to direct or commit the Activity on a certain course of action and the [incumbent's] position is geared more toward support and implementation rather than planning and policy-making." Id. at 20.

III. Application for Review

The Activity seeks review of the RD's decision on the grounds that the RD "erred as a matter of fact and law in finding that each of the positions . . . were not management officials as defined in . . . the Statute." Application at 1.

According to the Activity, a management official is an individual whose role extends beyond that of an expert or professional rendering resource information and who effectively participates in the determination of Activity policy. In support, the Activity relies on U.S. Coast Guard, Headquarters, Washington, D.C., 7 FLRA 743, 745 (1982) (U.S. Coast Guard). The Activity asserts that the disputed employees in this case are management officials because the "same elements" discussed in U.S. Coast Guard "can be found with regard to the [disputed] positions . . . ." Application at 12. The Activity asserts that the disputed employees "function[] as more than just subject matter experts[,] [and] . . . there is a great deal of reliance and credence given to the recommendations made by all of these employees when it comes to the drafting and formulating of policies, procedures, and practices of the [Activity] as a whole." Id. at 13.

Relying on Department of the Interior, Bureau of Mines, Twin Cities Research Center, Twin Cities, Minnesota, 9 FLRA 109 (1982) (Bureau of Mines), the Activity asserts that the Authority examines "the level of review of the employee's work and how influential the recommendations made by that employee are in the determination and implementation of policy . . . ." Application at 12. The Activity contends that the disputed employees "wield great impact and influence[] . . . [and] [t]he fact that there is some higher level review should not be confused with the type of review in which major changes in content are required . . . ." Id. at 13. In this connection, the Activity argues that the employees "have great program responsibilities and utilize high levels of expertise in reaching independent determinations which are implemented across the agency . . . [regarding] procedures to be followed in applying the policies . . . or in effectively recommending course[s] of action . . . ." Id.

More specifically, the Activity contends that the disputed Hearing Officers are management officials because their decisions are rendered independently and, with the exception of infrequent appeals to the Activity Manager, are not subject to substantive review within the Activity. The Activity maintains that the incumbents of the remaining positions are management officials because, although their work is subject to higher-level review, they are influential in recommending, developing and implementing new Activity policy. The Activity points out that the Computer Specialists in the Information Resources Management Division and the Insurance Management Specialists in both the Claims Services Division and the Reinsurance Contract Division have served on committees as Agency representatives, and the Financial Specialist has reviewed proposed legislation.

IV. Opposition to the Application

The Union contends that the Activity failed to establish any basis for review in accordance with part 2422.17(c) of the Authority's Regulations, and requests that the application for review be denied.

V. Analysis and Conclusions

A management official is defined in section 7103(a)(11) of the Statute 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 Department of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172, 177 (1981) (Navy/ADP), the Authority held that management officials are 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. See also U.S. Department of Energy, Headquarters, Washington, D.C., 40 FLRA 264, 266 (1991) (DOE, Headquarters).

The Activity contends that the incumbents of the disputed positions are management officials because, like the disputed engineer/management official in U.S. Coast Guard, "[t]he employees' roles . . . extend[] beyond serving as experts or professionals rendering information or merely making recommendations to the point of active participation and follow up in the determination of what policy will be." Application at 12. We construe this allegation as an argument, under section 2422.17(c)(1) of our Regulations, that the RD's decision departs from established Authority precedent. The Activity also claims that the RD erred in not recognizing the "great impact and influence" the incumbents have on shaping Activity policy. Id. at 13. We construe this allegation as an argument, under section 2422.17(c)(4) of our Regulations, that the RD's decision on a substantial factual issue is clearly erroneous, and that such error prejudicially affects the rights of a party.

We find that the Activity has not demonstrated that the RD findings on any substantial factual issue are clearly erroneous. The Activity disputes the RD's determination that the Hearing Officer's decisions are subject to review within the Activity. However, a review of the transcript demonstrates that the RD's factual findings with respect to review of the Hearing Officers' decisions are supported by the record. In this regard, one of the disputed Hearing Officers testified that after he issues a decision, he submits it to his branch chief for review. Transcript at 67. According to the Hearing Officer, if there "were something within the policies that in [the branch chief's] evaluation I hadn't considered or hadn't considered properly, . . . he would ask me if I had considered that particular point or if I thought I should review it." Id. at 68. Moreover, the Activity acknowledges in its application that "[t]here have been a limited number of occasions where an appellant . . . has asked the Manager . . . [to] overturn the decision[,] . . . [and] decision[s] [have] been overturned three or four times . . . ." Application at 3. We find that the Activity's contentions constitute mere disagreement with RD's factual findings and do not establish compelling reasons within the meaning of section 2422.17(c) of our Regulations for granting its application for review. For example, U.S. Department of Labor, Mine Safety and Health Administration, Washington, D.C., 37 FLRA 1151 (1990).

We also find that no substantial question of law is raised by reason of a departure from Authority precedent with respect to the RD's finding that the disputed employees are not management officials. We find that the RD applied the Statute and appropriate Authority precedent to conclude, based on the evidence, that the incumbents were not management officials. As relevant here, we agree with the RD that each of the incumbents applies existing Agency policy, but does not, as required by the Statute, formulate or determine new policy.

The record reveals that the incumbents provide recommendations to higher level supervisors on various policy issues. For example, the Insurance Management Specialist in the Delivery System Services Division makes recommendations to the Division concerning financial stability of the insurance companies involved in the Activity's programs, and develops policy papers regarding the Activity's position on certain programs. However, the record also reveals that the Insurance Management Specialist's recommendations are reviewed as those of an expert or a professional, rather than those of a management official who formulates, determines, or influences Activity policy. See Transcript at 124 (one of the Insurance Management Specialists testified that his recommendations are sent "up through the [supervisory] channels", that he does not have "the authority to . . . [determine] policy on . . . [his] own[,]" and that he does "not have any signatory authority to bind the agency in any type of action."). The RD properly concluded, in accordance with Authority precedent, that the incumbents who act as resource persons for higher level management and who recommend changes in Activity policy, but do not have authority to commit the Activity to a specific course of action, are not management officials. See DOE, Headquarters (attorneys who rendered legal advice to agency officials who promulgated policies were not management officials); United States Department of the Navy, U.S. Naval Station, Panama, 7 FLRA 489 (1981) (employees who suggested changes to policy or procedure but who had no authority to institute a change were not management officials); Navy/ADP (employees who administered contracts but did not have the authority to enter into contracts were not management officials).

The Activity argues that the employees in the disputed positions are management officials because their recommendations are influential. We disagree. Although the Authority has found that some individuals whose recommendations are generally accepted are management officials, those individuals also exercised other authority, such as the authority to bind the agency or the authority to commit agency funds. DOE, Headquarters (attorneys who had authority to bind the agency and authority to act on behalf of the general counsel were management officials); Bureau of Mines (a research assistant was a management official because, in addition to the fact that his recommendations were considered authoritative, he had the authority to commit funds and facilities for the agency). The disputed employees in this case do not possess such additional authority.

Further, the RD's conclusion that the disputed Computer Specialists and Insurance Management Specialists are not management officials is consistent with Authority precedent. These employees act only as resource persons providing professional recommendations for higher-level review, rather than as management officials formulating or effectively influencing Activity policy. See DOE, Headquarters (attorneys who served on committees acted as resource persons providing expert legal advice and were not management officials); U.S. Environmental Protection Agency Research Triangle Park, North Carolina, 12 FLRA 358 (1983) (employees serving on committees acted as resource persons to those who made policy and were not management officials). Compare U.S. Coast Guard (employee who served as chairman of an international work group which developed industry policy was a management official). Similarly, although the record indicates that the disputed Financial Specialist reviewed proposed legislation, such review, standing alone, does not demonstrate that the Specialist is a management official. See DOE, Headquarters (attorneys who drafted regulations but did not establish agency policy were technical experts and not management officials); Department of the Interior, U.S. Fish and Wildlife Service, Patuxent Wildlife Research Center, Laurel, Maryland, 7 FLRA 643 (1982) (employees who provided input into the development of agency regulations were simply experts or professionals rendering resource information and not management officials). Compare Headquarters, Space Division, Air Force Systems Command, Department of the Air Force, Department of Defense, 9 FLRA 885 (1982) (employees who wrote and independently interpreted regulations which set forth agency policy were found to be management officials).

The RD concluded, and we agree, that based on