Defense Mapping Agency, Inter-American Geodetic Survey (Activity) and Panama DOD Employees Coalition, CTRP (American Federation of Government Employees, Local 14, AFL-CIO) (Petitioner) and National Maritime Union of America, AFL-CIO (Intervenor)
[ v05 p610 ]
05:0610(85)RO
The decision of the Authority follows:
5 FLRA No. 85
DEFENSE MAPPING AGENCY
INTER-AMERICAN GEODETIC SURVEY
Activity
and
PANAMA DOD EMPLOYEES COALITION,
AFL-CIO, CTRP (AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 14,
AFL-CIO)
Petitioner
and
NATIONAL MARITIME UNION OF
AMERICA, AFL-CIO
Intervenor
Case No. 6-RO-60
DECISION AND DIRECTION OF ELECTION
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, A HEARING WAS HELD BEFORE A HEARING OFFICER OF THE AUTHORITY.
THE AUTHORITY HAS REVIEWED THE HEARING OFFICER'S RULINGS MADE AT THE
HEARING AND FINDS THAT THEY ARE FREE FROM PREJUDICIAL ERROR. THE
RULINGS ARE HEREBY AFFIRMED.
AT THE HEARING THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 14, AFL-CIO (AFGE LOCAL 14), MOVED TO AMEND ITS
PETITION TO CHANGE THE NAME OF THE PETITIONER TO PANAMA DOD EMPLOYEES
COALITION, AFL-CIO, CTRP (THE COALITION). THE COALITION, WHICH WAS
ESTABLISHED AFTER THE FILING OF THE INITIAL PETITION BUT BEFORE THE
HEARING, IS COMPOSED OF THREE SEPARATE AND DISTINCT AFL-CIO AFFILIATED
"LABOR ORGANIZATIONS" WITHIN THE MEANING OF SECTION 7103(A)(4) OF THE
STATUTE WHICH CONTINUE TO EXIST AS SEPARATE ENTITIES, EACH WITH ITS OWN
ELECTED OFFICERS, CONSTITUTION, AND BYLAWS, AND EACH HAVING HISTORICALLY
REPRESENTED DEPARTMENT OF DEFENSE EMPLOYEES IN THE CANAL ZONE. THE
THREE ARE AFGE LOCAL 14; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1805, AFL-CIO (AFGE LOCAL 1805); AND LOCAL 907, AMERICAN
FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO (AFSCME
LOCAL 907). THE STATED PURPOSE OF THE COALITION IS TO SECURE COLLECTIVE
BARGAINING RIGHTS FOR ALL EMPLOYEES OF DOD AGENCIES OPERATING IN THE
REPUBLIC OF PANAMA AND TO IMPROVE THEIR WAGES, HOURS, AND CONDITIONS OF
EMPLOYMENT.
THE AUTHORITY VIEWS AFGE LOCAL 14'S MOTION AS A PRE-ELECTION
STATEMENT OF INTENT TO PERMIT TWO OTHER AFL-CIO UNIONS TO JOINTLY SEEK
CERTIFICATION WITH IT. UNDER THESE CIRCUMSTANCES, THE MOTION OF AFGE
LOCAL 14 TO CHANGE THE NAME OF THE PETITIONER IS GRANTED. IN GRANTING
THE MOTION, HOWEVER, THE AUTHORITY ORDERS THAT, BEFORE ELECTIONS MAY BE
HELD IN THE UNIT OR UNITS FOUND APPROPRIATE INFRA, THERE MUST BE A NEW
POSTING OF NOTICE OF PETITION PURSUANT TO SECTION 2422.4(A) OF THE
AUTHORITY'S RULES AND REGULATIONS IN ORDER TO INFORM EMPLOYEES OF THE
CHANGE IN THE IDENTITY OF THE PETITIONER. THUS, THE EMPLOYEES WILL HAVE
PRE-ELECTION KNOWLEDGE OF THE PETITIONER'S INTENTION REGARDING JOINT
CERTIFICATION AND WILL BE ABLE TO VOTE ACCORDINGLY.
THE COALITION, IN ITS PETITION AS AMENDED, SEEKS TO REPRESENT A
RESIDUAL UNIT OF "ALL PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES AND
TECHNICIANS SERVED BY INTER-AMERICAN GEODETIC SURVEY HEADQUARTERS
LOCATED IN PANAMA," EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS,
PERSONNEL OFFICERS, AND EMPLOYEES DESCRIBED IN SECTION
7112(B)(2),(3),(4),(6) AND (7) OF THE STATUTE. ALL OF THE PARTIES ARE
IN AGREEMENT, AND THE AUTHORITY FINDS, SUBJECT TO THE RESULT OF THE SELF
DETERMINATION ELECTION ORDERED INFRA, THAT THIS UNIT IS APPROPRIATE.
/1/ HOWEVER, THE COALITION, IN ITS POST HEARING BRIEF, CONTENDS THAT
TEMPORARY (SOMETIMES REFERRED TO BY THE PARTIES AS CASUAL) EMPLOYEES
SHOULD BE EXCLUDED FROM THE UNIT BECAUSE THEY HAVE NO EXPECTANCY OF
CONTINUED EMPLOYMENT AND THUS DO NOT SHARE A COMMUNITY OF INTEREST WITH
OTHER EMPLOYEES COVERED BY THE PETITION. /2/
WITH REGARD TO TEMPORARY EMPLOYEES, THE RECORD INDICATES THAT THE
ACTIVITY MAINTAINS A ROSTER OF A LARGE NUMBER OF TEMPORARY LABORERS AND
DRIVERS WHO ARE USED AT VARIOUS TIMES DURING THE YEAR TO SUPPORT THE
ACTIVITIES OF THE CARTOGRAPHIC SCHOOL, ONE OF THE ACTIVITY'S COMPONENTS
IN PANAMA. THESE INDIVIDUALS ARE HIRED IN SENIORITY ORDER ONLY FOR
BRIEF AND SPECIFIC PERIODS OF FROM LESS THAN 10 BUT NOT MORE THAN 60
DAYS. AT ANY GIVEN TIME, THE NUMBER OF TEMPORARIES HIRED MAY VARY FROM
FOUR TO 25 DEPENDING UPON THE ACTIVITY'S NEED FOR THEIR SERVICES. THE
RECORD FURTHER REVEALS THAT SUCH EMPLOYEES HAVE NO OPPORTUNITY FOR
PERMANENT EMPLOYMENT WITH THE ACTIVITY AND RECEIVE BENEFITS (SUCH AS
LIFE INSURANCE, RETIREMENT AND PAID LEAVE) NOT FROM THE UNITED STATES
GOVERNMENT BUT ONLY FROM THE GOVERNMENT OF PANAMA WITH WHICH THEY MUST
BE REGISTERED. UNDER THESE CIRCUMSTANCES, THE AUTHORITY FINDS THAT THE
TEMPORARY EMPLOYEES HAVE NO COMMUNITY OF INTEREST WITH THE EMPLOYEES
WITHIN THE STIPULATED UNIT, AND MUST BE EXCLUDED.
ACCORDINGLY, BASED ON ALL OF THE FOREGOING, THE AUTHORITY FINDS,
SUBJECT TO THE RESULT OF THE SELF DETERMINATION ELECTION ORDERED INFRA,
THE FOLLOWING UNIT TO BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE STATUTE:
ALL PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES AND TECHNICIANS
SERVED BY INTER-AMERICAN
GEODETIC SURVEY HEADQUARTERS LOCATED IN PANAMA, EXCLUDING ALL
TEMPORARY EMPLOYEES, MANAGEMENT
OFFICIALS /3/ ,SUPERVISORS /4/ , PERSONNEL OFFICERS /5/ , AND
EMPLOYEES AS DESCRIBED IN
SECTION 7112(B)(2),(3),(4), (6) AND (7) OF THE STATUTE.
IT IS NOTED THAT THIS UNIT INCLUDES PROFESSIONAL EMPLOYEES. THE
PARTIES STIPULATED THAT ALL EMPLOYEES IN THE CARTOGRAPHIC SERIES 1370
AND 1372, WITH THE EXCEPTION OF ONE CARTOGRAPHIC/GEODETIC INSTRUCTOR
1370 NAMED WITTINGHAM, ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF
SECTION 7103(A)(15) OF THE STATUTE. /6/ THE COALITION AND THE ACTIVITY
FURTHER AGREE THAT THE INCUMBENTS IN THE CLASSIFICATION OF INTERPRETER
1047, DHOO ARE NOT PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF SECTION
7103(A)(15) OF THE STATUTE, BUT THE INTERVENOR NATIONAL MARITIME UNION
OF AMERICA, AFL-CIO, CONTENDS THAT THE AUTHORITY SHOULD RULE ON THE
STATUS OF THESE EMPLOYEES. THE RECORD INDICATES THAT THE JOB OF
INTERPRETER INVOLVES A SIMULTANEOUS TRANSLATION AND INTERPRETATION OF
THE CLASSES BEING HELD AT THE CARTOGRAPHIC SCHOOL INTO THE NATIVE
LANGUAGE OF THE STUDENTS INVOLVED. WHILE THERE IS A REQUIREMENT THAT
THE INTERPRETERS HAVE SOME KNOWLEDGE OF THE COURSES BEING TAUGHT AS WELL
AS NUMEROUS YEARS OF STUDYING A PARTICULAR LANGUAGE, A COLLEGE DEGREE IS
NOT REQUIRED. ACCORDINGLY, THE AUTHORITY FINDS THAT THE EMPLOYEES IN
THE CLASSIFICATION OF INTERPRETER 1047, DHOO ARE NOT PROFESSIONAL
EMPLOYEES WITHIN THE MEANING OF SECTION 7103(1)(15)(A)(I) OF THE STATUE.
AS PRESCRIBED BY SECTION 7112(B)(5) OF THE STATUTE, THE AUTHORITY IS
PROHIBITED FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH
NON-PROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTE FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRE OF
THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NON-PROFESSIONAL EMPLOYEES MUST BE ASCERTAINED BY A SELF DETERMINATION
ELECTION. THE AUTHORITY THEREFORE, DIRECTS SEPARATE ELECTIONS IN THE
FOLLOWING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES SERVED BY
INTER-AMERICAN GEODETIC SURVEY
HEADQUARTERS LOCATED IN PANAMA, EXCLUDING ALL NON-PROFESSIONAL
EMPLOYEES AND TECHNICIANS,
TEMPORARY EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS, PERSONNEL
OFFICERS, AND EMPLOYEES AS
DESCRIBED IN SECTION 7112(B)(2),(3),(4),(6) AND (7) OF THE STATUTE.
VOTING GROUP (B): ALL NON-PROFESSIONAL EMPLOYEES AND TECHNICIANS
SERVED BY INTER-AMERICAN
GEODETIC SURVEY HEADQUARTERS LOCATED IN PANAMA, EXCLUDING ALL
PROFESSIONAL EMPLOYEES,
TEMPORARY EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS, PERSONNEL
OFFICERS, AND EMPLOYEES AS
DESCRIBED IN SECTION 7112(B)(2),(3),(4),(6), AND (7) OF THE STATUTE.
THE EMPLOYEES IN THE NON-PROFESSIONAL VOTING GROUP (B) WILL BE POLLED
AS TO WHETHER THEY DESIRE TO BE REPRESENTED BY THE PANAMA DOD EMPLOYEES
COALITION, AFL-CIO, CTRP; BY THE NATIONAL MARITIME UNION OF AMERICA,
AFL-CIO; OR BY NEITHER.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER THEY WISH TO BE INCLUDED WITH
THE NON-PROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE RECOGNITION,
AND (2) WHETHER THEY WISH TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY THE PANAMA DOD EMPLOYEES COALITION, AFL-CIO, OF EXCLUSIVE
RECOGNITION BY THE PANAMA DOD EMPLOYEES COALITION, AFL-CIO, CTRP; BY
THE NATIONAL MARITIME UNION OF AMERICA, AFL-CIO; OR BY NEITHER. IN THE
EVENT THAT A MAJORITY OF THE VALID VOTES IN VOTING GROUP (A) IS CAST IN
FAVOR OF INCLUSION IN THE SAME UNIT WITH THE NON-PROFESSIONAL EMPLOYEES,
THE BALLOTS OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING
GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) IS CAST FOR
INCLUSION IN THE UNIT WITH NON-PROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING THEIR CHOICE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE PANAMA DOD EMPLOYEES
COALITION, AFL-CIO, CTRP; BY THE NATIONAL MARITIME UNION OF AMERICA,
AFL-CIO; OR BY NEITHER.
THUS, THE UNIT DETERMINATION IN THIS CASE IS BASED IN PART UPON THE
RESULT OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES. IN THIS
REGARD, THE AUTHORITY MAKES THE FOLLOWING FINDINGS WITH REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTE FOR INCLUSION IN
THE UNIT WITH NON-PROFESSIONAL EMPLOYEES, THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING SECTION 7112 OF THE STATUTE:
ALL PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES AND TECHNICIANS
SERVED BY INTER-AMERICAN
GEODETIC SURVEY HEADQUARTERS LOCATED IN PANAMA, EXCLUDING ALL
TEMPORARY EMPLOYEES, MANAGEMENT
OFFICIALS, SUPERVISORS, PERSONNEL OFFICERS, AND EMPLOYEES AS AS
DESCRIBED IN SECTION
7112(B)(2),(3),(4),(6), AND (7) OF THE STATUTE.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DO NOT VOTE FOR
INCLUSION IN A UNIT WITH NON-PROFESSIONAL EMPLOYEES, THE FOLLOWING TWO
GROUPS OF EMPLOYEES CONSTITUTE SEPARATE UNITS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 7112 OF
THE STATUTE:
(A) ALL PROFESSIONAL EMPLOYEES SERVED BY INTER-AMERICAN GEODETIC
SURVEY HEADQUARTERS
LOCATED IN PANAMA, EXCLUDING ALL NON-PROFESSIONAL EMPLOYEES AND
TECHNICIANS, TEMPORARY
EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS, PERSONNEL OFFICERS, AND
EMPLOYEES AS DESCRIBED
IN SECTION 7112(B )(2),(3),(4),(6), AND (7) OF THE STATUTE.
(B) ALL NON-PROFESSIONAL EMPLOYEES AND TECHNICIANS SERVED BY
INTER-AMERICAN GEODETIC SURVEY
HEADQUARTERS LOCATED IN PANAMA, EXCLUDING ALL PROFESSIONAL EMPLOYEES,
TEMPORARY EMPLOYEES,
MANAGEMENT OFFICIALS, SUPERVISORS, PERSONNEL OFFICERS, AND EMPLOYEES
AS DESCRIBED IN SECTION
7112(B)(2),(3),(4),(6), AND (7) OF THE STATUTE.
DIRECTION OF ELECTION
SUBJECT TO THE PREREQUISITE THAT THE NOTICE OF PETITION HEREIN BE
REPOSTED PURSUANT TO SECTION 2422.4(A) OF THE AUTHORITY'S RULES AND
REGULATIONS, ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG
EMPLOYEES IN THE VOTING GROUPS DESCRIBED ABOVE, AS EARLY AS POSSIBLE,
BUT NOT LATER THAN 60 DAYS FROM THE CONCLUSION OF THE ABOVE-REFERENCED
POSTING PERIOD. THE APPROPRIATE REGIONAL DIRECTOR SHALL SUPERVISE THE
ELECTIONS, SUBJECT TO THE AUTHORITY'S RULES AND REGULATIONS. ELIGIBLE
TO VOTE ARE THOSE IN THE VOTING GROUPS WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THE PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR
IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO HAVE QUIT
OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD AND WHO
HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE
ELIGIBLE TO VOTE WITHIN THE APPROPRIATE UNIT OR UNITS SHALL VOTE WHETHER
THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
BY THE PANAMA DOD EMPLOYEES COALITION, AFL-CIO, CTRP; BY THE NATIONAL
MARITIME UNION OF AMERICA, AFL-CIO; OR BY NEITHER.
ISSUED, WASHINGTON, D.C.,MAY 15, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ IN THIS REGARD, THE AUTHORITY NOTES THAT THE PANAMA CANAL ACT OF
1979 SPECIFICALLY EXTENDED COVERAGE OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE TO, AMONG OTHERS, EMPLOYEES OF
EXECUTIVE AGENCIES OPERATING IN THE AREA OF THE REPUBLIC OF PANAMA.
/2/ SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR
ORGANIZATION REPRESENTATION
(A)(1) THE AUTHORITY SHALL DETERMINE THE APPROPRIATENESS OF ANY UNIT.
THE AUTHORITY SHALL DETERMINE IN EACH CASE WHETHER, IN ORDER TO ENSURE
EMPLOYEES THE FULLEST FREEDOM IN EXERCISING THE RIGHTS GUARANTEED UNDER
THIS CHAPTER, THE APPROPRIATE UNIT SHOULD BE ESTABLISHED ON AN AGENCY,
PLANT, INSTALLATION, FUNCTIONAL, OR OTHER BASIS AND SHALL DETERMINE ANY
UNIT TO BE AN APPROPRIATE UNIT ONLY IF THE DETERMINATION WILL ENSURE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE EMPLOYEES IN THE
UNIT AND WILL PROMOTE EFFECTIVE DEALINGS WITH, AND EFFICIENCY OF THE
OPERATIONS OF, THE AGENCY INVOLVED.
/3/ THE PARTIES STIPULATED THAT THE INCUMBENT IN THE CLASSIFICATION
OF SUPERVISORY CARTOGRAPHIC GEODESIST 1370, 1 NM-13; SUPERVISORY
CARTOGRAPHIC INSTRUCTOR 1370, 1 NM-13; SUPERVISORY ELECTRONIC
TECHNICIAN 0856, 1 NM-12; AND SUPPORT SERVICES SUPERVISOR 0341, DHOO
SHOULD BE EXCLUDED FROM THE UNIT BECAUSE THEY ARE SUPERVISORS WITHIN THE
MEANING OF SECTION 7103(A)(10) OF THE STATUTE.
/5/ THE PARTIES STIPULATED THAT THE INCUMBENT IN THE CLASSIFICATION
OF PERSONNEL TECHNICIAN 0201, DHOO SHOULD BE EXCLUDED FROM THE UNIT AS
HE IS ENGAGED IN PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY
WITHIN THE MEANING OF SECTION 7112(B)(3) OF THE STATUTE.
/6/ SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER --
(15) "PROFESSIONAL EMPLOYEE" MEANS --
(A) AN EMPLOYEE ENGAGED IN THE PERFORMANCE OF WORK-
(I) REQUIRING KNOWLEDGE OF AN ADVANCED TYPE IN A FIELD OF SCIENCE OR
LEARNING CUSTOMARILY ACQUIRED BY A PROLONGED COURSE OF SPECIALIZED
INTELLECTUAL INSTRUCTION AND STUDY IN AN INSTITUTION OF HIGHER LEARNING
OR A HOSPITAL (AS DISTINGUISHED FROM KNOWLEDGE ACQUIRED BY A GENERAL
ACADEMIC EDUCATION, OR FROM AN APPRENTICESHIP, OR FROM TRAINING IN THE
PERFORMANCE OF ROUTINE MENTAL, MANUAL, MECHANICAL, OR PHYSICAL
ACTIVITIES);
(II) REQUIRING THE CONSISTENT EXERCISE OF DISCRETION AND JUDGMENT IN
ITS PERFORMANCE;
(III) WHICH IS PREDOMINANTLY INTELLECTUAL AND VARIED IN CHARACTER (AS
DISTINGUISHED FROM ROUTINE MENTAL, MANUAL, MECHANICAL, OR PHYSICAL
WORK); AND
(IV) WHICH IS OF SUCH CHARACTER THAT THE OUTPUT PRODUCED OR THE
RESULT ACCOMPLISHED BY SUCH WORK CANNOT BE STANDARDIZED IN RELATION TO A
GIVEN PERIOD TO TIME; OR
(B) AN EMPLOYEE WHO HAS COMPLETED THE COURSES OF SPECIALIZED
INTELLECTUAL INSTRUCTION AND STUDY DESCRIBED IN SUBPARAGRAPH (A) (I) OF
THIS PARAGRAPH AND IS PERFORMING RELATED WORK UNDER APPROPRIATE
DIRECTION OR GUIDANCE TO QUALIFY THE EMPLOYEE AS A PROFESSIONAL EMPLOYEE
DESCRIBED IN SUBPARAGRAPH (A) OF THIS PARAGRAPH; . . .