Interpretation and Guidance

 4 FLRA No. 99
 
                                            Case No. 0-PS-15
 
                        INTERPRETATION AND GUIDANCE
 
    INTRODUCTION
 
    AS ANNOUNCED IN ITS NOTICE OF APRIL 1, 1980, /1/ THE AUTHORITY
 DETERMINED, IN CONFORMITY WITH SECTION 2427.2 OF ITS RULES AND
 REGULATIONS (5 C.F.R. 2427.2), AND THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET SEQ.), THAN AN
 INTERPRETATION OF THE STATUTE WAS WARRANTED ON THE FOLLOWING QUESTION:
 
    WHAT IS THE IMPACT, IF ANY, OF AN AGENCY DETERMINATION THAT AN
 EMPLOYEE IS A SUPERVISOR OR
 
    MANAGEMENT OFFICIAL FOR PURPOSES OF COVERAGE UNDER THE "MERIT PAY"
 PROVISIONS OF THE CIVIL
 
    SERVICE REFORM ACT OF 1978 (92 STAT. 1179) ON SUCH EMPLOYEE'S
 INCLUSION IN A UNIT OF EXCLUSIVE
 
    RECOGNITION UNDER SECTION 7112 OF THE STATUTE (92 STAT. 1200)?  THE
 AUTHORITY INVITED INTERESTED PERSONS TO EXPRESS THEIR VIEWS IN WRITING
 CONCERNING THE QUESTION.  THE RESPONSES SUBMITTED TO THE AUTHORITY BY
 SEVEN LABOR ORGANIZATIONS AND SIX FEDERAL AGENCIES WERE DETAILED AND
 HELPFUL AND HAVE BEEN CAREFULLY CONSIDERED.  IN VIEW OF THE EXTENT AND
 DETAIL OF THESE SUBMISSIONS, THE AUTHORITY HAS DETERMINED THAT NO USEFUL
 PURPOSE WOULD BE SERVED BY PROVIDING FOR AN ORAL HEARING.
 
    CONCLUSION
 
    WHEN AN AGENCY DETERMINES THAT AN EMPLOYEE IS A SUPERVISOR OR
 MANAGEMENT OFFICIAL FOR PURPOSES OF COVERAGE UNDER THE "MERIT PAY"
 PROVISIONS OF THE CIVIL SERVICE REFORM ACT OF 1978, THAT DETERMINATION
 HAS NO IMPACT ON SUCH EMPLOYEE'S INCLUSION IN OR EXCLUSION FROM A UNIT
 OF EXCLUSIVE RECOGNITION UNDER SECTION 7112 OF THE STATUTE.
 
    BACKGROUND
 
    THE CIVIL SERVICE REFORM ACT OF 1978 EFFECTED SEVERAL MAJOR CHANGES
 IN THE SYSTEM OF FEDERAL PERSONNEL MANAGEMENT.
 
    AMONG THESE CHANGES WERE THE ESTABLISHMENT OF A STATUTORY
 LABOR-MANAGEMENT RELATIONS PROGRAM UNDER TITLE VII AND THE INTRODUCTION
 OF A PROGRAM FOR MERIT PAY UNDER TITLE V.
 
    1.  TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978-- FEDERAL
 SERVICE LABOR-MANAGEMENT
 
    RELATIONS
 
    THE ENACTMENT OF TITLE VII, THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, WAS A
 
    RECOGNITION OF THE RIGHT OF FEDERAL EMPLOYEES TO ORGANIZE, BARGAIN
 COLLECTIVELY, AND
 
    PARTICIPATE THROUGH LABOR ORGANIZATIONS IN DECISIONS WHICH AFFECT
 THEM.  /2/ IN SO
 
    RECOGNIZING, CONGRESS SPECIFICALLY FOUND THAT LABOR ORGANIZATIONS AND
 COLLECTIVE BARGAINING IN
 
    THE CIVIL SERVICE ARE IN THE PUBLIC INTEREST.  /3/
 
    TITLE VII PRESCRIBES, INTER ALIA, THE COMPOSITION, ORGANIZATION, AND
 RESPONSIBILITIES OF
 
    THE FEDERAL LABOR RELATIONS AUTHORITY.  THE AUTHORITY'S POWERS AND
 DUTIES ARE SET FORTH IN
 
    SECTION 7105 OF THE STATUTE.  IN SECTION 7105(A)(1) THE AUTHORITY IS
 GIVEN THE GENERAL
 
    RESPONSIBILITY FOR PROVIDING "LEADERSHIP IN ESTABLISHING POLICIES AND
 GUIDANCE RELATING TO
 
    MATTERS UNDER THIS CHAPTER," AND, EXCEPT AS OTHERWISE PROVIDED, "FOR
 CARRYING OUT THE PURPOSE
 
    OF THIS CHAPTER." IN FURTHERANCE OF THIS GENERAL CHARGE, THE
 AUTHORITY IS GIVEN THE POWER,
 
    INTER ALIA, IN SECTION 7105(A)(2)(A), TO "DETERMINE THE
 APPROPRIATENESS OF UNITS FOR LABOR
 
    ORGANIZATION REPRESENTATION UNDER SECTION 7112 OF THIS TITLE(.)" THE
 AUTHORITY, AMONG ITS
 
    OTHER RESPONSIBILITIES, IS ALSO EMPOWERED BY SECTION 7105(A)(2)(G) TO
 "CONDUCT HEARINGS AND
 
    RESOLVE COMPLAINTS OF UNFAIR LABOR PRACTICES UNDER SECTION 7118 OF
 THIS TITLE(.)"
 
    WITH REGARD TO THE AUTHORITY'S POWER TO DETERMINE APPROPRIATE
 BARGAINING UNITS UNDER
 
    SECTION 7105(A)(2)(A), SECTION 7112(B)(1) PROHIBITS FINDING A
 PROPOSED UNIT TO BE APPROPRIATE,
 
    "IF IT INCLUDES (EXCEPT IN CIRCUMSTANCES NOT RELEVANT HERE) ANY
 MANAGEMENT OFFICIAL OR
 
    SUPERVISOR(.)" THE TERMS "SUPERVISOR" AND "MANAGEMENT OFFICIAL" ARE
 DEFINED RESPECTIVELY IN
 
    SECTION 7103(A)(10) AND (11) OF THE STATUTE.  /4/ THUS, IN THE
 PROCESS OF DETERMINING THE
 
    APPROPRIATENESS OF BARGAINING UNITS, THE AUTHORITY IS REQUIRED TO
 INTERPRET AND APPLY THE
 
    DEFINITIONS OF "SUPERVISOR" AND "MANAGEMENT OFFICIAL" IN THE STATUTE.
 
    DECISIONS AS TO INTERPRETATION AND APPLICATION OF THE TERMS
 "SUPERVISOR" AND "MANAGEMENT
 
    OFFICIAL" HAVE EVEN WIDER IMPLICATIONS SINCE SECTION 7102 GUARANTEES
 CERTAIN RIGHTS TO
 
    "EMPLOYEES," BUT SECTION 7103(A)(2)(B)(III) EXPLICITLY EXCLUDES A
 "SUPERVISOR" OR A
 
    "MANAGEMENT OFFICIAL" FROM THE DEFINITION OF "EMPLOYEE" AND, AS A
 CONSEQUENCE, FROM THE RIGHTS
 
    GRANTED BY SECTION 7102.  BY MEANS OF THE UNFAIR LABOR PRACTICE
 PROCEDURES SET FORTH IN
 
    SECTION 7118, THE AUTHORITY IS CHARGED WITH ASSURING THE RIGHTS
 GRANTED TO EMPLOYEES AND LABOR
 
    ORGANIZATIONS ARE NOT ABRIDGED.
 
    2.  TITLE V OF THE CIVIL SERVICE REFORM ACT OF 1978-- MERIT PAY
 
    THE POLICY UNDERLYING THE ENACTMENT OF TITLE V IS THAT IN APPROPRIATE
 INSTANCES, PAY
 
    INCREASES SHOULD BE BASED ON QUALITY OF PERFORMANCE RATHER THAN
 LENGTH OF
 
    SERVICE.  /5/ THEREFORE, TITLE V PROVIDES FOR A MERIT PAY SYSTEM TO
 "RECOGNIZE AND REWARD
 
    QUALITY PERFORMANCE BY VARYING PAY ADJUSTMENTS." /6/ ACCORDING TO
 SECTION 5401(B)(1), TITLE
 
    V IS APPLICABLE "TO ANY SUPERVISOR OR MANAGEMENT OFFICIAL (AS DEFINED
 IN PARAGRAPHS (10) AND
 
    (11) OF SECTION 7103 OF TITLE VII, /7/ RESPECTIVELY) WHO IS IN A
 POSITION WHICH IS IN GS-13,
 
    14, OR 15 OF THE GENERAL SCHEDULE . . . " SECTION 5402(A) OF TITLE V
 PROVIDES THAT THE "OFFICE
 
    OF PERSONNEL MANAGEMENT SHALL ESTABLISH A MERIT PAY SYSTEM WHICH
 SHALL PROVIDE FOR A RANGE OF
 
    BASIC PAY FOR EACH GRADE TO WHICH THE SYSTEM APPLIES . . . " SECTION
 5405 OF TITLE V STATES
 
    THAT THE "OFFICE OF PERSONNEL MANAGEMENT SHALL PRESCRIBE REGULATIONS
 TO CARRY OUT THE PURPOSE
 
    OF THIS CHAPTER." IN COMPLIANCE WITH THIS LATTER RESPONSIBILITY, THE
 OFFICE OF PERSONNEL
 
    MANAGEMENT HAS PUBLISHED REGULATIONS.  /8/ SECTION 540.102(C) OF THE
 REGULATIONS REQUIRES
 
    THAT, "THE HEAD OF EACH AGENCY SHALL IDENTIFY EMPLOYEES WHO ARE
 SUPERVISORS OR MANAGEMENT
 
    OFFICIALS FOR PURPOSES OF COVERAGE BY THE MERIT PAY SYSTEM." /9/
 
    THUS, THE CONGRESS ASSIGNED TO THE OFFICE OF PERSONNEL MANAGEMENT
 RESPONSIBILITY FOR THE
 
    ESTABLISHMENT AND REGULATION OF THE MERIT PAY SYSTEM PRESCRIBED BY
 TITLE V OF THE CIVIL
 
    SERVICE REFORM ACT.  IN FURTHERANCE OF THAT RESPONSIBILITY, THE
 OFFICE OF PERSONNEL MANAGEMENT
 
    HAS CHARGED AGENCY HEADS WITH THE AUTHORITY TO DETERMINE WHICH
 EMPLOYEES MEET THE CRITERIA FOR
 
    COVERAGE BY THE MERIT PAY SYSTEM, I.E., WHICH EMPLOYEES ARE
 "SUPERVISORS" OR "MANAGEMENT
 
    OFFICIALS" FOR MERIT PAY PURPOSES.  THIS DETERMINATION IS MADE BY
 REFERENCE TO THE DEFINITION
 
    OF "SUPERVISOR" AND "MANAGEMENT OFFICIAL" CONTAINED IN TITLE VII.
 
    DISCUSSION
 
    WHILE PROCEDURES ARE AVAILABLE TO ASCERTAIN EMPLOYEE RIGHTS UNDER
 TITLE VII, IT IS A FUNDAMENTAL PURPOSE OF THAT TITLE TO AFFORD BOTH
 LABOR ORGANIZATIONS AND AGENCIES AN OPPORTUNITY TO WORK OUT THEIR
 DIFFERENCES ARISING UNDER TITLE VII TO THE MAXIMUM EXTENT POSSIBLE
 WITHOUT RESORT TO THE PROCESSES OF THE AUTHORITY, AND THEY ARE
 ENCOURAGED TO DO THIS.  THE INSTANT REQUEST FOR A MAJOR POLICY
 DETERMINATION AROSE FROM AN ALLEGED MANAGEMENT PRACTICE OF REMOVING
 EMPLOYEES FROM BARGAINING UNITS PURSUANT TO MERIT PAY DETERMINATIONS.
 
    FROM THE PLAIN LANGUAGE OF THE PROVISIONS OF TITLE VII AS SUMMARIZED
 ABOVE, IT IS CLEAR CONGRESS ASSIGNED FINAL RESPONSIBILITY TO THE FEDERAL
 LABOR RELATIONS AUTHORITY FOR DETERMINATIONS AS TO WHETHER AN INDIVIDUAL
 IS, FOR PURPOSES OF TITLE VII, A SUPERVISOR OR MANAGEMENT OFFICIAL, AND,
 THEREFORE, WHETHER SUCH AN INDIVIDUAL SHOULD OR SHOULD NOT BE INCLUDED
 IN A UNIT OF EXCLUSIVE RECOGNITION.  THERE IS NO INDICATION OF ANY KIND
 IN THE LEGISLATIVE HISTORY OF TITLE VII THAT CONGRESS INTENDED
 OTHERWISE.  THUS, AN AGENCY WOULD ACT AT ITS OWN PERIL IN REMOVING AN
 EMPLOYEE FROM AN ESTABLISHED BARGAINING UNIT SIMPLY BECAUSE OF A
 DETERMINATION THAT SUCH EMPLOYEE IS A SUPERVISOR OR MANAGEMENT OFFICIAL
 FOR MERIT PAY PURPOSES.  IF THERE IS A MOVE CONTEMPLATED TO REMOVE AN
 EMPLOYEE FROM AN ESTABLISHED BARGAINING UNIT SIMPLY BECAUSE OF A MERIT
 PAY DETERMINATION, THERE ARE PROCEDURES AVAILABLE UNDER TITLE VII TO
 RESOLVE QUESTIONS RELATED TO THE REMOVAL.
 
    IT MUST BE NOTED THAT THERE IS NO PROVISION IN THE CIVIL SERVICE
 REFORM ACT NOR ANY INDICATION IN ITS LEGISLATIVE HISTORY THAT ANY
 RESPONSIBILITY HAS BEEN ASSIGNED TO THE FEDERAL LABOR RELATIONS
 AUTHORITY FOR THE DETERMINATION OF WHETHER AN INDIVIDUAL IS A SUPERVISOR
 OR MANAGEMENT OFFICIAL FOR PURPOSES OF THE MERIT PAY SYSTEM UNDER TITLE
 V (OTHER THAN WITHIN THE AUTHORITY ITSELF).  RATHER, IT IS EVIDENT THAT
 THE AUTHORITY IS WITHOUT SUCH JURISDICTION SINCE THE MERIT PAY
 PROVISIONS OF TITLE V MUST BE IMPLEMENTED BY AGENCIES RELYING UPON THE
 DEFINITIONS CONTAINED IN TITLE VII, REGARDLESS OF WHETHER OR NOT A
 COLLECTIVE BARGAINING UNIT HAS BEEN ESTABLISHED.  SUCH PROVISIONS APPLY
 NOT ONLY TO SUPERVISORS AND MANAGERS AS DEFINED IN TITLE VII, BUT ALSO
 TO INDIVIDUALS WHO ARE NOT INCLUDED IN COLLECTIVE BARGAINING UNITS, AS
 WELL AS INDIVIDUALS EXCLUDED FROM THE COVERAGE OF TITLE VII.
 
    DETERMINATIONS AS TO AN INDIVIDUAL'S SUPERVISORY OR MANAGEMENT STATUS
 MADE UNDER TITLES V AND VII OF THE CIVIL SERVICE REFORM ACT ARE RELATED
 TO THE EXTENT THAT THOSE WHO ADMINISTER THE RESPECTIVE SEPARATE TITLES
 UTILIZE THE SAME DEFINITIONS OF SUPERVISOR AND MANAGEMENT OFFICIAL.
 HOWEVER, DETERMINATIONS UNDER TITLE V OF STATUS AS A SUPERVISOR OR
 MANAGEMENT OFFICIAL FOR MERIT PAY PURPOSES DOES NOT CONFER SUPERVISORY
 OR MANAGERIAL STATUS UNDER TITLE VII.  SINCE IT IS NOT WITHIN THE
 JURISDICTION OF THE AUTHORITY TO DETERMINE WHETHER AN INDIVIDUAL IS A
 SUPERVISOR OR MANAGEMENT OFFICIAL FOR MERIT PAY PURPOSES UNDER TITLE V,
 IT FOLLOWS THAT IT IS OUTSIDE THE JURISDICTION OF THE AUTHORITY TO
 DIRECT AGENCIES TO FOLLOW THE BINDING DETERMINATIONS OF THE AUTHORITY AS
 TO WHETHER AN INDIVIDUAL IS A SUPERVISOR OR MANAGEMENT OFFICIAL UNDER
 TITLE VII WHEN AGENCIES ARE IMPLEMENTING THE MERIT PAY PROVISIONS OF
 TITLE V.
 
    IN SUMMARY, IT IS WITHIN THE JURISDICTION OF THE AUTHORITY TO MAKE
 FINAL DETERMINATIONS UNDER APPROPRIATE REPRESENTATION OR UNFAIR LABOR
 PRACTICE CASE PROCEDURES AS TO WHETHER AN INDIVIDUAL IS A SUPERVISOR OR
 MANAGEMENT OFFICIAL FOR THE PURPOSES OF TITLE VII OF THE CIVIL SERVICE
 REFORM ACT.  IT IS NOT WITHIN THE JURISDICTION OF THE AUTHORITY TO MAKE
 DETERMINATIONS AS TO WHETHER AN INDIVIDUAL IS A SUPERVISOR OR MANAGEMENT
 OFFICIAL FOR THE PURPOSES OF TITLE V OF THE CIVIL SERVICE REFORM ACT.
 CONVERSELY, WHEN AN AGENCY DETERMINES THAT AN EMPLOYEE IS A SUPERVISOR
 OR MANAGEMENT OFFICIAL FOR PURPOSES OF COVERAGE UNDER THE "MERIT PAY"
 PROVISIONS OF TITLE V OF THE CIVIL SERVICE REFORM ACT OF 1978, THAT
 DETERMINATION HAS NO IMPACT ON WHETHER SUCH EMPLOYEE IS OR IS NOT A
 SUPERVISOR OR MANAGEMENT OFFICIAL FOR PURPOSES OF TITLE VII.  THUS, WHEN
 AN AGENCY DETERMINES THAT AN EMPLOYEE IS A SUPERVISOR OR MANAGEMENT
 OFFICIAL FOR PURPOSES OF COVERAGE UNDER THE "MERIT PAY" PROVISIONS OF
 THE CIVIL SERVICE REFORM ACT OF 1978, THAT DETERMINATION HAS NO IMPACT
 ON SUCH EMPLOYEE'S INCLUSION IN OR EXCLUSION FROM A UNIT OF EXCLUSIVE
 RECOGNITION UNDER SECTION 7112 OF THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 16, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ FEDERAL LABOR RELATIONS AUTHORITY, NOTICE RELATING TO INCLUSION
 OF EMPLOYEES IN UNITS AND COVERAGE OF MERIT PAY PROVISIONS, 45 FED.REG.
 24,231 (APRIL 9, 1980).  THIS NOTICE WAS ISSUED IN RESPONSE TO A REQUEST
 FOR A MAJOR POLICY DETERMINATION SUBMITTED BY THE NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES.
 
    /2/ 5 U.S.C. 7101(A)(1) (SUPP. II 1978).
 
    /3/ 5 U.S.C. 7101(A) (SUPP. II 1978).
 
    /4/ SECTION 7103 PROVIDES IN PERTINENT PART:
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   .          .          .          .
 
 
    (10) 'SUPERVISOR' MEANS AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING
 AUTHORITY IN THE
 
    INTEREST OF THE AGENCY TO HIRE, DIRECT, ASSIGN, PROMOTE, REWARD,
 TRANSFER, FURLOUGH, LAYOFF,
 
    RECALL, SUSPEND, DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR
 GRIEVANCES, OR TO
 
    EFFECTIVELY RECOMMEND SUCH ACTION, IF THE EXERCISE OF THE AUTHORITY
 IS NOT MERELY ROUTINE OR
 
    CLERICAL IN NATURE BUT REQUIRES THE CONSISTENT EXERCISE OF
 INDEPENDENT JUDGMENT EXCEPT THAT,
 
    WITH RESPECT TO ANY UNIT WHICH INCLUDES FIREFIGHTERS OR NURSES, THE
 TERM 'SUPERVISOR' INCLUDES
 
    ONLY THOSE INDIVIDUALS WHO DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT
 TIME TO EXERCISING SUCH
 
    AUTHORITY;
 
    (11) 'MANAGEMENT OFFICIAL' MEANS 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(.)
 
    /5/ SEE CIVIL SERVICE REFORM ACT OF 1978, FINDINGS AND STATEMENT OF
 PURPOSE, SEC. 3(7).  5 U.S.C. 1101 NOTE (SUPP. II 1978).
 
    /6/ 5 U.S.C. 5401(A)(1)(A) (SUPP. II 1978).
 
    /7/ NOTE 4, SUPRA.
 
    /8/ 44 FED.REG. 52,161 (1919), CODIFIED AT 5 C.F.R. PART 540 (1980).
 
    /9/ 5 C.F.R. 540.102(C) (1980).