Department of Health, Education and Welfare, Social Security Administration, Office of Hearings and Appeals, Region II, Puerto Rico (Activity) and American Federation of Government Employees, Local 3534, AFL-CIO (Petitioner)  

 1 FLRA No. 110
 
 DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, SOCIAL SECURITY
 ADMINISTRATION, OFFICE OF
 HEARINGS AND APPEALS, REGION II
 PUERTO RICO /1/
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3534, AFL-CIO
 Petitioner
 
                                            Assistant Secretary
                                            Case No. 37-01986(CU)
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
 AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER MARCELINO
 RODRIGUEZ RUIZ.  THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE
 FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, AND UPON
 CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING BRIEFS
 FILED BY BOTH PARTIES, THE AUTHORITY FINDS:  /2/
 
    THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3534, AFL-CIO
 (AFGE), FILED A PETITION FOR CLARIFICATION OF UNIT (CU) SEEKING TO
 CLARIFY WHETHER THE ACTIVITY'S ADMINISTRATIVE LAW JUDGES (ALJS) SHOULD
 BE EXCLUDED FROM ITS EXCLUSIVELY RECOGNIZED UNIT AS SUPERVISORS AND/OR
 AS MANAGEMENT OFFICIALS.  /3/ THE AFGE CONTENDS THAT THE ACTIVITY'S ALJS
 ARE NEITHER SUPERVISORS NOR MANAGEMENT OFFICIALS BUT, RATHER, ARE TEAM
 LEADERS WHO DO NOT ACTIVELY PARTICIPATE IN THE DETERMINATION OF PROGRAM,
 PERSONNEL, OR PROCEDURAL POLICY.  CONVERSELY, THE ACTIVITY CONTENDS THAT
 ITS ALJS ARE SUPERVISORS AND/OR MANAGEMENT OFFICIALS AND SHOULD BE
 EXCLUDED FROM THE AFGE'S EXCLUSIVELY RECOGNIZED UNIT.
 
    THE MISSION OF THE ACTIVITY INVOLVES ESSENTIALLY THE HEARING AND
 DECIDING OF APPEALS OF CASES FOR THE SOCIAL SECURITY ADMINISTRATION
 UNDER THE SOCIAL SECURITY ACT, AND THE FEDERAL COAL MINE ACT.  THE
 ACTIVITY HAS THREE HEARING OFFICES IN PUERTO RICO, WITH ALJS ASSIGNED TO
 EACH.  THERE ARE APPROXIMATELY 12 ALJS IN THE SAN JUAN OFFICE, 2 IN THE
 PONCE OFFICE AND 2 IN THE MAYAGUEZ OFFICE.  EACH OFFICE IS HEADED BY AN
 ADMINISTRATIVE LAW JUDGE IN CHARGE;  SOME ALSO HAVE A HEARINGS
 ADMINISTRATOR WHO ACTS AS AN OFFICE MANAGER.
 
    THE EVIDENCE ESTABLISHES THAT THE ALJS CONDUCT IMPARTIAL HEARINGS AND
 MAKE DECISIONS ON CLAIMANTS' APPEALS OF DETERMINATIONS INVOLVING
 RETIREMENT, SURVIVORS, DISABILITY AND HEALTH INSURANCE BENEFITS, BLACK
 LUNG BENEFITS, AND SUPPLEMENTAL SECURITY INCOME.  THE PROCESSING OF THE
 CLAIMANTS' CASES IS ACCOMPLISHED WITHIN WORK UNITS, EACH OF WHICH
 USUALLY CONSISTS OF ONE ALJ, ONE STAFF ATTORNEY, ONE HEARING ASSISTANT,
 AND TWO HEARING CLERKS.  EACH ALJ DIRECTS THE WORK FLOW AND ASSIGNS WORK
 WITHIN HIS UNIT.  THIS DIRECTION INCLUDES DIRECTING HIS STAFF ATTORNEY
 AS TO THE BASIS ON WHICH A CLAIM SHOULD BE DENIED OR ALLOWED.  AFTER
 DECISIONS ARE DRAFTED, THE ALJS REVIEW THE STAFF ATTORNEYS' ANALYSES AND
 REPORTS OF THE CASES.  THE ALJS ALSO EFFECTIVELY RECOMMEND AWARDS FOR
 EMPLOYEES.  IN ONE INSTANCE, AN ALJ EFFECTIVELY RECOMMENDED THAT AN
 EMPLOYEE BE TRANSFERRED TO ANOTHER WORK UNIT.
 
    SECTION 2(C) OF THE EXECUTIVE ORDER DEFINES A SUPERVISOR AS AN
 EMPLOYEE WHO HAS AUTHORITY TO TAKE, OR EFFECTIVELY RECOMMEND, ACTION IN
 ANY ONE OF SEVERAL ENUMERATED WAYS, INCLUDING TO TRANSFER OR TO REWARD
 OTHER EMPLOYEES.  AS THE RECORD ESTABLISHES THAT THE ALJS HEREIN
 EFFECTIVELY MAKE RECOMMENDATIONS CONCERNING EMPLOYEE TRANSFERS AND
 AWARDS, THE AUTHORITY FINDS THAT THE SUBJECT EMPLOYEES ARE SUPERVISORS
 WITHIN THE MEANING OF SECTION 2(C).  /4/ ACCORDINGLY, THE AUTHORITY
 SHALL ORDER THAT THEY BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT.
 /5/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
 WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 3534,
 AFL-CIO, WAS CERTIFIED ON JULY 12, 1974, BE, AND IT HEREBY IS, CLARIFIED
 BY EXCLUDING FROM THE UNIT ADMINISTRATIVE LAW JUDGES OF THE ACTIVITY'S
 SAN JUAN, PONCE AND MAYAGUEZ, PUERTO RICO OFFICES.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 20, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /6/
 
    /1/ THE ACTIVITY'S NAME HAS BEEN CHANGED FROM THE BUREAU OF HEARINGS
 AND APPEALS TO THE OFFICE OF HEARINGS AND APPEALS (OHA).
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDE SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /3/ THE AFGE WAS CERTIFIED ON JULY 12, 1974, AS THE EXCLUSIVE
 REPRESENTATIVE OF A UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL
 EMPLOYEES OF THE OFFICE OF THE OHA IN PUERTO RICO (ACTIVITY), EXCLUDING
 EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
 CLERICAL CAPACITY, TEMPORARY INTERMITTENT EMPLOYEES, CONFIDENTIAL
 EMPLOYEES, MANAGEMENT OFFICIALS AND SUPERVISORS AND GUARDS AS DEFINED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    /4/ IN AN EARLIER CASE INVOLVING THE SAME PARTIES, HEARING EXAMINERS
 WERE FOUND TO BE SUPERVISORS.  SOCIAL SECURITY ADMINISTRATION, BUREAU OF
 HEARINGS AND APPEALS, 2 A/SLMR 157, A/SLMR 142(1972).
 
    /5/ IN VIEW OF THIS DISPOSITION, THE AUTHORITY FINDS IT UNNECESSARY
 TO PASS ON WHETHER ALJS ARE MANAGEMENT OFFICIALS.
 
    /6/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.