48:0285(23)CU - - DOD, DLA, Defense Contract Management Command, Defense Contract Management District North Central and AFGE, Local 2265 - - 1993 FLRAdec CU - - v48 p285



[ v48 p285 ]
48:0285(23)CU
The decision of the Authority follows:


48 FLRA No. 23

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEFENSE LOGISTICS AGENCY

DEFENSE CONTRACT MANAGEMENT COMMAND

DEFENSE CONTRACT MANAGEMENT DISTRICT NORTH CENTRAL

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2265

(Labor Organization/Petitioner)

CH-CU-20035

_____

ORDER DENYING APPLICATION FOR REVIEW

August 18, 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(a) 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 found that two GS-1102-14 Contract Administrators serving as Corporate Administrative Contracting Officers (CACOs) and four GS-1102-13 Contract Administrators serving as Divisional Administrative Contracting Officers (DACOs) 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 Petitioner's (Local 2265's) existing bargaining unit.

Local 2265 did not file an opposition to the application for review. For the reasons set forth below, we deny the Activity's application.

II. Background

The American Federation of Government Employees,     AFL-CIO (AFGE) is the exclusive representative of separate units of professional and nonprofessional employees of the Defense Logistics Agency (DLA or the Agency).(*) Local 2265 is the agent of AFGE for the purpose of representing the nonprofessional bargaining unit employees located at the Activity. Local 2265 filed a petition with the Regional Director under section 7111(b) of the Statute seeking to clarify whether the CACOs and DACOs are included in Local 2265's bargaining unit.

The Activity reports organizationally to the DLA, Defense Contract Management Command (DCMC) in Alexandria, Virginia. The mission of the DCMC is to provide contract administrative services for the military services and for other government agencies. The Activity administers Department of Defense (DOD) and non-DOD contracts awarded to Twin Cities, Minnesota area corporations, including FMC, Honeywell Alliant/TechSystems, and Control Data. The CACO and DACO positions that are at issue in this case are involved in administering awarded contracts to these corporations.

The record reveals that the duties and responsibilities of the CACOs and DACOs are similar, but are distinguished by the level at which they work. The CACOs work at the corporate level of the contractor whose contracts they administer and are involved with the contractor's insurance and pension systems, software costs, compensation systems, cost and pricing accountability systems, and procurement systems. The DACOs work at the divisional level and deal regularly with issues such as costs, progress on contracts, progress payments, and property.

The CACOs and DACOs are responsible for knowing the business of the contractor and making sure that the contractor's operations meet government standards. The CACOs and DACOs are the contractor's source of information and guidance concerning government regulations and procedures. CACOs and DACOs review and evaluate contractor policies, procedures, and costs, and negotiate revisions with contractors on such matters to assure that the policies, procedures, and costs conform with government standards. They are guided in this respect by the DLA Agency Contract Administration Manual.

CACOs and DACOs have the authority to deal with contractors by signing for and binding the DCMC to agreements concerning the way in which business will be conducted. CACOs and DACOs operate within the guidelines of the Federal Acquisition Regulations (FAR) and Defense Federal Acquisition Regulations Supplement, Agency policy and instruction, legal precedent, and the particular awarded contract. The CACOs and DACOs dealings with contractors must conform to these policies. Some of the actions taken by CACOs and DACOs are subject to advisory review by a Board of Review. Decisions to disallow a contractor's costs are appealable to the Armed Services Board of Contract Appeals or to the courts.

In carrying out their responsibilities, CACOs call upon the expertise of various other DLA employees, including engineers, cost monitors, price analysts, and contract administrators. CACOs are also responsible for communicating information concerning the contractor to other CACOs, DACOs, and technical experts within the Agency who were involved in the process.

III. Regional Director's Decision

The Regional Director concluded that the two CACOs and the four DACOs are not management officials within the meaning of section 7103(a)(11) of the Statute because they do not establish, prescribe, decide upon, or bring about the adoption of general principles, plans, or courses of action for the Activity.

In reaching his determination, the Regional Director noted that "[a] management official is defined in [s]ection 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[.]'" Regional Director's Decision at 5. The Regional Director noted further that, 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. Applying the criteria set forth in Navy/ADP, the Regional Director determined that "while the CACOs and DACOs are valuable and knowledgeable resource persons, the record fails to establish that the CACOs or the DACOs prescribe[,] establish[,] determine[], or bring[] about the adoption of Activity policy." Id. Rather, the Regional Director found that "the CACOs and DACOs interpret and apply already established policy and standards, operating within the [r]egulatory and policy framework of the FAR and Agency policy guidance." Id.

Citing U.S. Department of Energy, Headquarters, Washington, D.C., 40 FLRA 264, 269-271 (1991) and U.S. Department of Labor, Mine Safety and Health Administration, Washington, D.C., 37 FLRA 1151 (1990), the Regional Director found that the fact that CACOs and DACOs must interpret regulatory and policy guidance and have decision-making authority within this framework "does not establish that the CACO and DACO thereby make or effectively make or shape such policy." Id. at 6. Based on his findings that the CACOs and DACOs are not management officials within the meaning of section 7103(a)(11) of the Statute, the Regional Director concluded that they are properly included in the bargaining unit represented by Local 2265.

IV. Application for Review

The Activity seeks review of the Regional Director's Decision under section 2422.17(c) of the Authority's Rules and Regulations. The Activity contends that "the Regional Director's conclusion that the CACOs and DACOs are not management officials raises a substantial question of law or policy because [his decision] represents a departure from Authority precedent." Application at 1.

The Activity asserts that the Regional Director did not address Authority precedent. The Activity contends that in Headquarters, Space Division, Air Force Systems Command, Department of the Air Force, Department of Defense, 9 FLRA 885 (1982) (DOD), the Authority found that a contract negotiator and a contract administrator were management officials "because the incumbents had complete responsibility for negotiating the Aerospace Corporation contract, and had final signatory authority to bind the activity and its resources." Id. at 4. According to the Activity, the Authority found that those employees' responsibilities required and authorized them to formulate, determine or influence the policies of the Activity within the meaning of section 7103(a)(11) of the Statute. The Activity argues that like the incumbents in DOD, "the CACO's and DACO's have negotiation/contract administration responsibilities and have final signatory authority to bind the Activity and its resources." Id.

The Activity also argues that the CACOs and DACOs are management officials because they "review, evaluate, negotiate and resolve, and approve policies, procedures, and expenses having corporate and divisional-wide impact." Id. at 5. The Activity contends that these employees actively participate in the ultimate determination of Agency policy "because they are the Government authority for enforcing the provisions of the procurement regulations and laws, some of which have not been fully defined by the courts and Contract Appeals Boards." Id. at 6. The Activity asserts that the CACOs' and DACOs' interpretation of complex cost accounting standards provisions establishes Agency policy on that issue because that interpretation is binding on the Government. Likewise, the Activity argues, the CACOs' and DACOs' actions as to a variety of policy issues are final and binding on the Agency and the Government. For the above reasons, the Activity maintains that the CACOs and DACOs influence or shape Agency policy and, therefore, are management officials and should be excluded from the unit.

V. Analysis and Conclusions

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

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 that the CACOs and DACOs are not management officials within the meaning of section 7103(a)(11) of the Statute. The Activity contends that the Authority's holding in DOD as to a contract negotiator and a contract administrator should dictate a similar result in this case as to the CACOs and DACOs. We disagree. In DOD, the Authority found that the contract negotiator and contract administrator were management officials based on its determination on the record in that case that those two employees' responsibilities required them to formulate, determine, or influence the policies of the activity within the meaning of section 7103(a)(11). In contrast, in this case, the responsibilities of the CACOs and DACOs do not require them to formulate, determine, or influence the policies of the Activity. Moreover, we note that the Authority in DOD also found that certain other employees, including a contract specialist, were not management officials because they did not exercise duties that required them to formulate, determine or influence the policies of the activity.

In the instant case, citing Authority precedent, the Regional Director concluded that the record evidence did not establish that the CACOs and DACOs were management officials. The Regional Director found that: (1) the CACOs and DACOs are valuable and knowledgeable resource persons; (2) they do not prescribe, establish, determine, or bring about the adoption of Activity policy; and (3) they interpret and apply already established policy and standards, operating within the regulatory and policy framework of the Federal Acquisition Regulations and Agency policy guidance. The Regional Director also found that the fact that the CACOs and DACOs interpret regulatory and policy guidance and have decision-making authority within this framework does not establish that these employees make or effectively make or shape such policy. In our view, the Activity's contentions constitute mere disagreement with the Regional Director's application of Authority precedent to the facts established by the record in this case. As such, the Activity has not shown that the Regional Director's decision is a departure from Authority precedent an