U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Southern Region (Activity/Petitioner) and National Weather Service Employees Organization, MEBA, AFL-CIO (Labor Organization) 

 5 FLRA No. 16
 
 U.S. DEPARTMENT OF COMMERCE,
 NATIONAL OCEANIC AND
 ATMOSPHERIC ADMINISTRATION,
 NATIONAL WEATHER SERVICE,
 SOUTHERN REGION
 Activity/Petitioner
 
 and
 
 NATIONAL WEATHER SERVICE EMPLOYEES
 ORGANIZATION, MEBA, AFL-CIO
 Labor Organization
 
                                            Case No. 6-CU-16
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
 UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C.  7101-7135 (THE STATUTE), A HEARING WAS HELD
 BEFORE A HEARING OFFICER OF THE AUTHORITY.  THE HEARING OFFICER'S
 RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE
 HEREBY AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THE SUBJECT CASE, THE AUTHORITY FINDS:  THE
 U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
 ADMINISTRATION, NATIONAL WEATHER SERVICE, SOUTHERN REGION
 (ACTIVITY/PETITIONER) FILED A PETITION FOR CLARIFICATION OF UNIT (CU) IN
 ORDER TO DETERMINE WHETHER OR NOT CERTAIN EMPLOYEES SHOULD BE INCLUDED
 IN THE EXCLUSIVELY REPRESENTED BARGAINING UNIT.  /1/ SPECIFICALLY, THE
 ACTIVITY SEEKS TO EXCLUDE APPROXIMATELY 47 FORECASTERS IN CHARGE, GS-13
 AND 14, AND 15 LEADING FORECASTERS, GS-12, AS SUPERVISORS, AND 18
 CLERK-STENOGRAPHERS AND SECRETARY-STENOGRAPHERS, GS-4 AND 5, AS
 CONFIDENTIAL EMPLOYEES, ALL OF WHOM WORK FOR METEOROLOGISTS IN CHARGE
 (MICS), AND HYDROLOGISTS IN CHARGE (HICS), FROM THE UNIT OF EXCLUSIVE
 RECOGNITION REPRESENTED BY THE NWSEO.  THE NWSEO CONTENDS THAT EMPLOYEES
 IN THE JOB CLASSIFICATIONS IN QUESTION ARE NOT SUPERVISORS OR
 CONFIDENTIAL EMPLOYEES RESPECTIVELY, AND, THEREFORE, REMAIN ELIGIBLE FOR
 CONTINUED INCLUSION WITHIN ITS UNIT.
 
    FORECASTERS IN CHARGE AND LEADING FORECASTERS
 
    THE POSITIONS IN DISPUTE ARE LOCATED IN APPROXIMATELY 11 WEATHER
 SERVICE FORECAST OFFICES IN EIGHT STATES OF THE ACTIVITY'S GEOGRAPHICAL
 JURISDICTION.  EACH OFFICE PRODUCES WEATHER SERVICE FORECASTS, WARNINGS,
 AND STATEMENTS, AND FUNCTIONS 24 HOURS PER DAY, 7 DAYS A WEEK.  EACH
 24-HOUR PERIOD IS DIVIDED INTO DAY, EVENING AND MIDNIGHT OPERATIONAL
 FORECASTS SHIFTS.  IN ADDITION, ONE ADMINISTRATIVE SHIFT RUNS
 CONCURRENTLY WITH THE DAY OPERATIONAL FORECAST SHIFT.
 
    THE FORECAST OFFICES ARE CLASSIFIED BY "CATEGORY" DEPENDING UPON THE
 SIZE OF THE GEOGRAPHIC AREA COVERED, THE POPULATION SERVED AND THE
 NUMBER OF METEOROLOGICAL PROGRAMS ADMINISTERED.  FORECASTERS IN CHARGE
 WHO WORK AT THE LARGEST STATIONS (CATEGORY I) ARE CLASSIFIED AS GS-14'S,
 FORECASTERS IN CHARGE WHO WORK AT CATEGORY II STATIONS ARE CLASSIFIED AS
 GS-13'S;  AND, LEADING FORECASTERS EMPLOYED AT CATEGORY III STATIONS ARE
 CLASSIFIED AS GS-12'S.
 
    THE MIC IS IN CHARGE OF EACH OFFICE AND IN SOME INSTANCES IS ASSISTED
 BY A DEPUTY METEOROLOGIST IN CHARGE (DMIC) OR A PRINCIPAL ASSISTANT
 (PA).  THEY ARE ALL CLASSIFIED AS SUPERVISORS.  THE MICS, DMICS AND PAS
 ROUTINELY WORK DURING THE SO-CALLED "ADMINISTRATIVE SHIFT," FROM
 APPROXIMATELY 8:00 A.M. TO 4:30 P.M., MONDAY THROUGH FRIDAY, EXCLUDING
 HOLIDAYS.  SUCH PERSONNEL HAVE THEIR OWN OFFICES WHICH ARE SEPARATE AND
 APART FROM THE FORECAST AREA, WHERE THE FORECASTERS IN CHARGE OR LEADING
 FORECASTERS, AND JOURNEYMEN FORECASTERS WORK.
 
    THE FORECAST UNIT ON A ROUTINE ROTATING EIGHT HOUR SHIFT WILL
 GENERALLY CONSIST OF ONE FORECASTER IN CHARGE OR LEADING FORECASTER, AND
 ONE OR TWO JOURNEYMEN FORECASTERS.  WHEN A MEMBER OF THE FORECAST UNIT
 REPORTS FOR WORK, HE OR SHE IS RESPONSIBLE FOR THE PREPARATION AND
 ISSUANCE OF CERTAIN SCHEDULED PERIODIC FORECASTS.  THE FORECASTS
 REQUIRED TO BE ISSUED ON EACH SHIFT AS WELL AS PROCEDURES FOR GATHERING
 FORECAST MATERIAL ARE DETAILED IN STATION DUTY MANUALS AND DESK BOOKS
 MAINTAINED BY EACH FORECAST OFFICE.  FOLLOWING A TEN OR FIFTEEN MINUTE
 BRIEFING BY THE FORECASTERS BEING RELIEVED FROM THE PREVIOUS SHIFT, THE
 FORECASTERS IN CHARGE OR LEADING FORECASTERS ENGAGE IN ABSORBING THE
 CURRENT FORECAST PACKAGE BY REVIEWING THE DATA DISPLAYED ON THE STATE
 AND ZONE MAPS, ASSIMILATING AND ANALYZING A CONTINUOUS FLOW OF
 METEOROLOGICAL DATA COMING INTO THE STATE, TENTATIVELY PLOTTING THE
 SIGNIFICANT INFORMATION ON STATE AND ZONE MAPS, DISCUSSING THEIR
 METEOROLOGICAL ASSESSMENTS WITH OTHER MEMBERS OF THE FORECAST TEAM AND
 ISSUING AND TRANSMITTING THE PERIODIC FORECASTS OVER TELETYPE AND RADIO
 EQUIPMENT.  JOURNEYMEN FORECASTERS ARE INVOLVED IN PRECISELY THE SAME
 REGIMEN DURING THE SAME ROTATING SHIFTS.  THE WORK OF ALL EMPLOYEES ON
 THE SHIFT IS COMPLETELY DETAILED BY AGENCY MANUALS, AND THE RECORD
 INDICATES THAT LITTLE OR NO DIRECTION BY THE FORECASTERS IN CHARGE OR
 LEADING FORECASTERS IS REQUIRED OR SOUGHT, WITH SUCH FORECASTERS ACTING
 AS WORKING LEADERS ON THEIR SHIFT.
 
    THERE IS NO INDICATION THAT THE ACTION TAKEN BY THE FORECASTERS IN
 CHARGE OR LEADING FORECASTERS WITH RESPECT TO THE PREPARATION OF THE
 PERIODIC FORECASTS ON A SHIFT BY THE CREW IS OTHER THAN ROUTINE, AND
 GOVERNED BY AGENCY DIRECTIVES AND INSTRUCTIONS FROM WHICH RARELY, IF
 EVER, ARE DEVIATIONS MADE.  THE STATION DUTY MANUALS IN EACH FORECAST
 OFFICE SPECIFY THE NUMBER OF PERSONNEL NECESSARY TO BE ON DUTY IN A
 GIVEN SEVERE WEATHER SITUATION.  RARELY, IF EVER, HAS THE FORECASTER IN
 CHARGE OR THE LEADING FORECASTER SUMMONED ADDITIONAL FORECAST PERSONNEL
 ON HIS OWN INITIATIVE IN SUCH SITUATION.
 
    THE RECORD REVEALS THAT FORECASTERS IN CHARGE OR LEADING FORECASTERS
 EXERCISE LITTLE OR NO INDEPENDENT JUDGMENT IN DETERMINING THE NUMBER AND
 TYPES OF EMPLOYEES NECESSARY TO PRODUCE THE APPROPRIATE FORECAST
 MATERIAL, OR INDEPENDENTLY EXERCISE THE AUTHORITY TO MAKE ANY REQUIRED
 EMPLOYEE ASSIGNMENTS.  THE RECORD FURTHER INDICATES THAT SUCH
 FORECASTERS DO NOT HIRE OR EFFECTIVELY RECOMMEND THE HIRING OF ANY
 PERSONS, DO NOT EFFECTIVELY RECOMMEND THE FURLOUGH OR DISCHARGE OF ANY
 INDIVIDUAL, OR SUSPEND OR REMOVE ANY PERSONNEL.  THE RECORD DISCLOSES AS
 WELL, THAT THE FORECASTER IN CHARGE OR LEADING FORECASTER IS CALLED THE
 "LEADER" OF HIS PARTICULAR OFFICE SOLELY BECAUSE IN THE ABSENCE OF HIS
 IMMEDIATE SUPERVISOR, I.E. MIC, DMIC OR PA, DURING NONROUTINE "NORMAL"
 WORKING HOURS, SUCH FORECASTER IS THE HIGHEST GRADE EMPLOYEE ON STATION.
  BEING THE SENIOR FORECASTER WITH RESPECT TO GRADE ON SHIFT ASSURES
 RESPONSIBILITY FOR, AND COMPATIBILITY OF, ALL FORECAST MATERIAL PRODUCED
 BY A TEAM EFFORT IN CONFORMITY WITH ESTABLISHED AGENCY GUIDELINES.
 MOREOVER, FORECASTERS IN CHARGE OR LEADING FORECASTERS DO NOT HAVE THE
 AUTHORITY TO DIRECT HOW EMPLOYEES ACCOMPLISH THEIR FUNCTIONS, ESPECIALLY
 DUE TO THE ROUTINE AND STANDARDIZED NATURE OF THOSE FUNCTIONS.  SUCH
 FORECASTERS HAVE ONLY RARELY APPROVED SHORT TERM EMERGENCY SICK AND
 ANNUAL LEAVE, BUT IN STRICT ACCORDANCE WITH WRITTEN INSTRUCTIONS OR
 WELL-SETTLED PRACTICES AT EACH STATION.
 
    THE AUTHORITY FINDS THAT THE EVIDENCE CONTAINED IN THE RECORD
 ESTABLISHES THAT THE 62 FORECASTERS IN CHARGE AND LEADING FORECASTERS
 ARE NOT SUPERVISORS AS DEFINED BY SECTION 7103(A)(10) OF THE STATUTE.
 SECTION 7103(A)(10) PROVIDES, IN PERTINENT PART:
 
    (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,
 . . .
 
    THUS, THE RECORD CLEARLY ESTABLISHES THAT THE AUTHORITY EXERCISED BY
 THE FORECASTERS IN CHARGE AND LEADING FORECASTERS IN DIRECTING AND
 ASSIGNING SUBORDINATE FORECASTERS IN THE PERFORMANCE OF THEIR WORK IS
 ROUTINE IN NATURE AND RIGIDLY CONTROLLED BY AGENCY DIRECTIVE.  MOREOVER,
 THE WORK PERFORMED BY THE PROFESSIONALS REQUIRES NO DAY-TO-DAY
 DIRECTION.  THERE IS NO INDICATION THAT THE PERFORMANCE OF THESE
 FUNCTIONS HAS REQUIRED THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT.
 FURTHER, THE FORECASTERS IN QUESTION DO NOT EFFECTIVELY RECOMMEND THE
 HIRING OF EMPLOYEES, DISCIPLINARY ACTIONS, PROMOTIONS AND AWARDS OR
 ADJUSTMENT OF GRIEVANCES.  SEE NATIONAL GUARD BUREAU, MASSACHUSETTS AIR
 NATIONAL GUARD, 3 FLRA NO. 132(1980).  ACCORDINGLY, THE AUTHORITY SHALL
 ORDER THAT THE EMPLOYEES IN THE DISPUTED JOB CLASSIFICATIONS BE INCLUDED
 IN THE EXCLUSIVELY REPRESENTED UNIT.
 
    SECRETARY-STENOGRAPHERS AND CLERK-STENOGRAPHERS
 
    THESE CLERICAL EMPLOYEES ARE ALLEGED TO BE CONFIDENTIAL EMPLOYEES
 BECAUSE OF THEIR WORK RELATIONSHIP WITH THE MICS OR HICS IN EITHER THE
 ELEVEN FORECAST OFFICES IN THE BARGAINING UNIT OR THE THREE
 ENVIRONMENTAL STUDIES SERVICE CENTERS AND FOUR RIVER FORECAST CENTERS.
 THE MIC OR HIC ESTABLISHES WORKING CONDITIONS AND HAS OVERALL PERSONAL
 ADMINISTRATIVE RESPONSIBILITIES FOR THEIR OFFICES, INCLUDING REVIEW OF
 EMPLOYEE PERSONNEL APPRAISALS AND AUTHORITY TO ADJUST FORMAL GRIEVANCES.
  THEY ARE THE ONLY OFFICIALS IN AN OFFICE AUTHORIZED TO MEET WITH UNION
 OFFICIALS REGARDING WORKING CONDITIONS AND IN THE PAST THEY HAVE HELD
 DISCUSSIONS WITH SUCH OFFICIALS.  THE MICS AND HICS HAVE ALSO BEEN
 CONSULTED BY THE ACTIVITY REGARDING PROPOSED COLLECTIVE BARGAINING
 AGREEMENT PROVISIONS.
 
    EACH MIC OR HIC IS ASSIGNED AS HIS ONLY CLERICAL ONE OF THE EMPLOYEES
 IN QUESTION.  EACH OF THESE CLERICALS MAINTAINS A RECORD OF PERSONNEL
 ACTIONS AND STATISTICAL INFORMATION ON EMPLOYEES, SUCH AS LEAVE
 BALANCES, AND TYPES ALL OF THE MICS OR HICS CORRESPONDENCE, REQUESTS FOR
 PROMOTIONS, RECOMMENDATIONS FOR AWARDS, FORMS FOR OUTSTANDING
 PERFORMANCE RATINGS, AND LETTERS OF COMMENDATION.  ALL MAIL COMING TO
 THE MIC OR HIC GOES THROUGH THE CLERICAL EMPLOYEE, WHO GENERALLY HAS
 ACCESS TO ALL FILES TO WHICH THE MICS AND THE HICS HAVE ACCESS, IN SOME
 INSTANCES CONFIDENTIAL LABOR RELATIONS MATERIAL.
 
    SECTION 7112(B)(2) OF THE STATUTE PROVIDES THAT A UNIT WILL NOT BE
 APPROPRIATE FOR LABOR ORGANIZATION REPRESENTATION IF IT INCLUDES A
 CONFIDENTIAL EMPLOYEE.  SECTION 7103(A)(13) OF THE STATUTE DEFINES A
 "CONFIDENTIAL EMPLOYEE" AS ONE "WHO ACTS IN A CONFIDENTIAL CAPACITY WITH
 RESPECT TO AN INDIVIDUAL WHO FORMULATES OR EFFECTUATES MANAGEMENT
 POLICIES IN THE FIELD OF LABOR-MANAGEMENT RELATIONS(.)" UNDER THESE
 CIRCUMSTANCES, IT IS CONCLUDED THAT SECRETARY-STENOGRAPHERS AND
 CLERK-STENOGRAPHERS TO THE MICS AND HICS HEREIN, ACT IN A CONFIDENTIAL
 CAPACITY TO AN OFFICIAL INVOLVED IN THE FORMULATION AND EFFECTUATION OF
 THE ACTIVITY'S LABOR RELATIONS POLICIES.  SEE U.S. ARMY COMMUNICATIONS
 SYSTEMS AGENCY, FORT MONMOUTH, NEW JERSEY, 4 FLRA NO. 83(1980).
 
    ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE CLERICAL EMPLOYEES IN
 THE DISPUTED JOB CLASSIFICATIONS BE EXCLUDED FROM THE EXCLUSIVELY
 REPRESENTED UNIT ON THE BASIS OF CONFIDENTIAL STATUS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
 WHICH THE NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION, MEBA, AFL-CIO
 WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE ON JULY 10, 1978, BE, AND
 IT HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT THE POSITIONS OF
 LEADING FORECASTERS, GS-12 AND FORECASTERS IN CHARGE, GS-13 AND 14, AND
 BY EXCLUDING FROM SAID UNIT THE POSITIONS OF SECRETARY-STENOGRAPHERS AND
 CLERK-STENOGRAPHERS, GS-4 AND 5, WHO WORK DIRECTLY FOR METEOROLOGISTS IN
 CHARGE OR HYDROLOGISTS IN CHARGE.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 10, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION, MEBA,
 AFL-CIO (NWSEO) WAS CERTIFIED AS AN EXCLUSIVE REPRESENTATIVE ON JULY 10,
 1978, IN A UNIT DEFINED AS FOLLOWS:
 
    INCLUDED:  ALL NONSUPERVISORY, NONPROFESSIONAL AND PROFESSIONAL
 EMPLOYEES ASSIGNED TO
 
    STATIONS IN THE SOUTHERN REGION, NATIONAL WEATHER SERVICE.
 
    EXCLUDED:  MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL
 PERSONNEL WORK IN OTHER THAN
 
    A PURELY CLERICAL CAPACITY, EMPLOYEES ASSIGNED TO REGIONAL
 HEADQUARTERS, OTHER THAN FACILITIES
 
    TECHNICIANS, AND EMPLOYEES ASSIGNED TO WEATHER SERVICE OFFICES AT SAN
 JUAN, PUERTO
 
    RICO;  TAMPA, FLORIDA;  AND NATIONAL HURRICANE CENTER, MIAMI,
 FLORIDA;  GUARDS AND SUPERVISORS AS
 
    DEFINED BY EXECUTIVE ORDER 11491, AS AMENDED.