Army Operational Test and Evaluation Agency (Activity) and National Federation of Federal Employees, Local 1975, Independent (Petitioner)

 8 FLRA No. 74
 
 U.S. ARMY OPERATIONAL
 TEST AND EVALUATION AGENCY
 Activity
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1975, INDEPENDENT
 Petitioner
 
                                            Case No. 3-RO-60
 
                    DECISION AND DIRECTION OF ELECTION
 
    UPON A PETITION DULY FILED UNDER SECTION 7111(B)(2) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE 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.
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
 PARTIES, THE AUTHORITY FINDS:  THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1975, INDEPENDENT (NFFE) SEEKS TO REPRESENT A UNIT OF
 CURRENTLY UNREPRESENTED PROFESSIONAL EMPLOYEES AT THE U.S. ARMY
 OPERATIONAL TEST AND EVALUATION AGENCY (ACTIVITY).  THE PARTIES
 STIPULATED AND THE AUTHORITY FINDS THAT THE FOLLOWING CONSTITUTES AN
 APPROPRIATE UNIT WITHIN THE MEANING OF SECTION 7112 OF THE STATUTE:
 
    ALL PROFESSIONAL EMPLOYEES OF THE U.S. ARMY OPERATIONAL TEST AND
 EVALUATION AGENCY,
 
    EXCLUDING NONPROFESSIONAL EMPLOYEES, MANAGERS, SUPERVISORS,
 CONFIDENTIAL EMPLOYEES AND
 
    EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
 CLERICAL CAPACITY.
 
    THE ACTIVITY IS A FIELD OPERATING AGENCY OF THE CHIEF OF STAFF OF THE
 ARMY, RESPONSIBLE FOR SUPPORTING THE ARMY'S MATERIEL ACQUISITION AND
 FORCE DEVELOPMENT PROCESSES THROUGH OVERALL MANAGEMENT OF THE ARMY'S
 TEST PROGRAM.  THE ACTIVITY MANAGES TESTING FOR THE DEPARTMENT OF THE
 ARMY TO DETERMINE THE OPERATIONAL EFFECTIVENESS AND SUITABILITY OF A
 MATERIEL SYSTEM.
 
    AT ISSUE HEREIN ARE 15 POSITIONS (CURRENTLY WITH 13 INCUMBENTS) WHICH
 THE ACTIVITY SEEKS TO EXCLUDE FROM THE BARGAINING UNIT AS MANAGEMENT
 OFFICIALS BECAUSE THEY "FORMULATE, DETERMINE, OR INFLUENCE THE POLICIES
 OF THE AGENCY" WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE.
  /1/ IN DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION
 OFFICE, 7 FLRA NO. 24 (1981), THE AUTHORITY INTERPRETED THE DEFINITION
 OF MANAGEMENT OFFICIAL IN SECTION 7103 OF THE STATUTE, AND CONCLUDED
 THAT IT INCLUDES THOSE 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.  THE AUTHORITY WILL NOW APPLY THESE CRITERIA TO THE DISPUTED
 POSITIONS HEREIN.
 
    JOB NUMBER 22643, GENERAL ENGINEERS, GS-801-13
 
    THE AUTHORITY FINDS THAT THE GENERAL ENGINEER, GS-801-13, IS NOT A
 MANAGEMENT OFFICIAL INASMUCH AS HE DOES NOT "FORMULATE, DETERMINE, OR
 INFLUENCE THE POLICIES OF THE AGENCY" WITHIN THE MEANING OF SECTION
 7103(A)(11) OF THE STATUTE.  RATHER, THE INDIVIDUAL IN THIS POSITION IS
 AN EXPERT OR PROFESSIONAL WHOSE ACTIONS ASSIST IN IMPLEMENTING, AS
 OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES IN THE AREAS OF PLANNING,
 DIRECTING AND EVALUATING HIGHLY SPECIALIZED INSTRUMENTATION FOR TEST
 PROGRAMS.  IN THIS REGARD, HIS DUTIES, INCLUDING WHEN HE ACTS AS A
 PROJECT LEADER AND WHEN HE REPRESENTS THE ACTIVITY IN MEETINGS WITH
 OTHER AGENCIES, ARE LIMITED TO USING HIS TECHNICAL EXPERTISE CONCERNING
 ALL PHASES OF INSTRUMENTATION.  ANY RECOMMENDATIONS HE MAKES WITH
 RESPECT TO TECHNICAL CHANGES IN AGENCY POLICIES ARE BASED ON HIS
 TECHNICAL EXPERTISE IN SPECIFIC PROGRAMS FOR WHICH HE IS RESPONSIBLE,
 AND THE RECOMMENDATIONS ARE SUBJECT TO FINAL APPROVAL BY HIGHER LEVEL
 MANAGEMENT.  BASED ON THE FOREGOING, THE AUTHORITY CONCLUDES THAT JOB
 NUMBER 22643, GENERAL ENGINEER, GS-801-13, SHOULD BE INCLUDED IN THE
 EXCLUSIVELY RECOGNIZED UNIT.
 
    JOB NUMBER 21182, ELECTRONICS ENGINEER, GS-855-13
 
    THE AUTHORITY FINDS THAT THE ELECTRONICS ENGINEER, GS-855-13, IS NOT
 A MANAGEMENT OFFICIAL INASMUCH AS HE DOES NOT "FORMULATE, DETERMINE, OR
 INFLUENCE THE POLICIES OF THE AGENCY" WITHIN THE MEANING OF SECTION
 7103(A)(11) OF THE STATUTE.  RATHER, THE INDIVIDUAL IN THIS POSITION IS
 AN EXPERT OR PROFESSIONAL WHOSE ACTIONS ASSIST IN IMPLEMENTING, AS
 OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES IN THE AREAS OF ELECTRONIC
 SYSTEMS AND EQUIPMENT.  IN THIS REGARD, HIS DUTIES, INCLUDING WHEN HE
 ACTS AS A PROJECT LEADER AND WHEN HE REPRESENTS THE ACTIVITY IN MEETINGS
 WITH OTHER AGENCIES, ARE LIMITED TO USING HIS TECHNICAL EXPERTISE IN THE
 AREAS OF THE TESTING PROGRAM CONCERNING ASPECTS OF ELECTRONIC
 ENGINEERING.  ANY RECOMMENDATIONS HE MAKES WITH RESPECT TO TECHNICAL
 CHANGES IN AGENCY POLICIES ARE BASED ON HIS TECHNICAL EXPERTISE IN ALL
 AREAS CONCERNING THE INSTRUMENTATION OF ELECTRONIC PROJECTS TO WHICH HE
 HAS BEEN ASSIGNED.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT JOB NUMBER
 21182, ELECTRONICS ENGINEER, GS-855-13, SHOULD BE INCLUDED IN THE
 EXCLUSIVELY RECOGNIZED UNIT.
 
    JOB NUMBER 60437, GENERAL ENGINEER, GS-801-13
 
    THE AUTHORITY FINDS THAT THE GENERAL ENGINEER, GS-801-13, IS NOT A
 MANAGEMENT OFFICIAL INASMUCH AS HE DOES NOT "FORMULATE, DETERMINE, OR
 INFLUENCE THE POLICIES OF THE AGENCY" WITHIN THE MEANING OF SECTION
 7103(A)(11) OF THE STATUTE.  RATHER, THE INDIVIDUAL IN THIS POSITION IS
 AN EXPERT OR PROFESSIONAL WHOSE ACTIONS CONSIST OF IMPLEMENTING, AS
 OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES IN THE AREA OF METHODOLOGY
 CONCERNING RELIABILITY, AVAILABILITY, AND MAINTAINABILITY ENGINEERING.
 IN THIS REGARD, HIS DUTIES, INCLUDING WHEN HE ACTS AS A PROJECT LEADER
 AND WHEN HE REPRESENTS THE ACTIVITY IN MEETINGS WITH OTHER AGENCIES, ARE
 LIMITED TO USING HIS TECHNICAL EXPERTISE IN THE AREA OF ARMY AND
 DEPARTMENT OF DEFENSE REGULATIONS, PROCEDURES AND PLANS COVERING
 TESTING.  THESE REGULATIONS, PROCEDURES AND PLANS ARE REVIEWED AND
 INTERPRETED BY HIM FOR SCIENTIFIC AND TECHNICAL IMPLICATIONS CONCERNING
 THE ACTIVITY'S MISSION.  ALTHOUGH HIS RECOMMENDATIONS ON THESE MATTERS
 USUALLY HAVE BEEN ACCEPTED WITH MODIFICATIONS BY HIGHER LEVEL
 MANAGEMENT, THE AUTHORITY CONCLUDES THAT JOB NUMBER 60437, GENERAL
 ENGINEER, GS-801-13, SHOULD BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED
 UNIT.
 
    JOB NUMBER 60428, GENERAL ENGINEER, GS-801-13
 
    THE AUTHORITY FINDS THAT THE GENERAL ENGINEER, GS-801-13, IS NOT A
 MANAGEMENT OFFICIAL INASMUCH AS HE DOES NOT "FORMULATE, DETERMINE, OR
 INFLUENCE THE POLICIES OF THE AGENCY" WITHIN THE MEANING OF SECTION
 7103(A)(11) OF THE STATUTE.  RATHER, THE INDIVIDUAL IN THIS POSITION IS
 AN EXPERT OR PROFESSIONAL WHOSE ACTIONS ASSIST IN IMPLEMENTING, AS
 OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES IN THE AREA OF RELIABILITY,
 AVAILABILITY AND MAINTAINABILITY ENGINEERING AS RELATED TO OPERATIONAL
 TESTING AND EVALUATION OF MAJOR AND DESIGNATED NON-MAJOR SYSTEMS
 ASSIGNED TO THE ACTIVITY.  IN THIS REGARD, HIS DUTIES, INCLUDING WHEN HE
 ACTS AS A PROJECT LEADER AND WHEN HE REPRESENTS THE ACTIVITY IN MEETINGS
 WITH OTHER AGENCIES, ARE LIMITED TO HIS USING TECHNICAL EXPERTISE AND
 SPECIALIZATION IN THE AREA OF DEVELOPING PROCEDURES AND IMPROVING
 TECHNOLOGY IN THE ACTIVITY'S METHODOLOGY SECTION.  THIS INCLUDES MAKING
 RECOMMENDATIONS AS AN EXPERT WITH REGARD TO PROCEDURES, POLICY AND
 REGULATIONS IN HIS SPECIALIZED AREA OF RELIABILITY, AVAILABILITY AND
 MAINTAINABILITY.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT JOB NUMBER
 60428, GENERAL ENGINEER, GS-801-13, SHOULD BE INCLUDED IN THE
 EXCLUSIVELY RECOGNIZED UNIT.
 
    JOB NUMBER 60925, OPERATIONS RESEARCH ANALYST, GS-1515-13
 
    THE AUTHORITY FINDS THAT THE OPERATIONS RESEARCH ANALYST, GS-1515-13,
 IS NOT A MANAGEMENT OFFICIAL INASMUCH AS HE DOES NOT "FORMULATE,
 DETERMINE, OR INFLUENCE THE POLICIES OF THE AGENCY" WITHIN THE MEANING
 OF SECTION 7103(A)(11) OF THE STATUTE.  RATHER, THE INDIVIDUAL IN THIS
 POSITION IS AN EXPERT OR PROFESSIONAL WHOSE ACTIONS ASSIST IN
 IMPLEMENTING, AS OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES IN THE AREA
 OF QUALITY CONTROL OF DATA COLLECTED DURING TESTING.  IN THIS REGARD,
 THE RECORD SHOWS THAT HIS DUTIES, INCLUDING REPRESENTATION OF THE
 ACTIVITY IN MEETINGS WITH OTHER AGENCIES, ARE LIMITED TO USING HIS
 TECHNICAL EXPERTISE IN COLLECTING AND ASSURING THE ACCURACY AND
 COMPLETENESS OF TEST DATA.  WHATEVER RECOMMENDATIONS HE MAKES ARE THOSE
 OF AN EXPERT OR PROFESSIONAL, AND, AFTER REVIEW BY HIS SUPERVISORS, ARE
 USUALLY ACCEPTED.  UNDER THESE CIRCUMSTANCES, THE AUTHORITY CONCLUDES
 THAT JOB NUMBER 60925, OPERATIONS RESEARCH ANALYST, GS-1515-13, SHOULD
 BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
 
    JOB NUMBER 60429, OPERATIONS RESEARCH ANALYST, GS-1515-13
 
    FOUR POSITIONS DESIGNATED AS OPERATIONS RESEARCH ANALYST, JOB NUMBER
 60429, GS-1515-13, ARE IN DISPUTE, ONE OF WHICH IS CURRENTLY VACANT.
 /2/ THE AUTHORITY FINDS THAT THE INCUMBENTS OF THE THREE REMAINING
 POSITIONS ARE NOT MANAGEMENT OFFICIALS INASMUCH AS THEY DO NOT
 "FORMULATE, DETERMINE, OR INFLUENCE THE POLICIES OF THE AGENCY" WITHIN
 THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE.  RATHER, THE
 INDIVIDUALS IN THESE POSITIONS ARE EXPERTS OR PROFESSIONALS WHOSE
 ACTIONS ASSIST IN IMPLEMENTING, AS OPPOSED TO SHAPING, THE ACTIVITY'S
 POLICIES IN THE AREA OF OPERATIONS RESEARCH AND ANALYSIS.  IN THIS
 REGARD, THEIR DUTIES, INCLUDING WHEN THEY ACT AS PROJECT LEADERS AND
 WHEN THEY REPRESENT THE ACTIVITY IN MEETINGS WITH OTHER AGENCIES, ARE
 LIMITED TO THE USE OF THEIR TECHNICAL EXPERTISE IN THE AREA OF
 DEVELOPING ANALYTICAL RESEARCH CONCEPTS.  THIS ROLE INCLUDES MAKING
 TECHNICAL RECOMMENDATIONS, WHICH ARE SUBJECT TO HIGHER LEVEL APPROVAL,
 THAT ARE RELATED TO SPECIFIC PROGRAMS FOR WHICH THEY ARE RESPONSIBLE.
 ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE INDIVIDUALS IN JOB NUMBER
 60429, OPERATIONS RESEARCH ANALYST, GS-1515-13 SHOULD BE INCLUDED IN THE
 EXCLUSIVELY RECOGNIZED UNIT.
 
    JOB NUMBER 63004, GENERAL ENGINEER, GS-801-13
 
    FIVE GENERAL ENGINEER, GS-801-13, POSITIONS ARE IN DISPUTE, ONE OF
 WHICH IS CURRENTLY VACANT AND THEREFORE WILL NOT BE CONSIDERED HEREIN.
 /3/ WITH REGARD TO THE OTHER FOUR POSITIONS, THE AUTHORITY FINDS THAT
 THE INCUMBENTS ARE NOT MANAGEMENT OFFICIALS INASMUCH AS THEY DO NOT
 "FORMULATE, DETERMINE, OR INFLUENCE THE POLICIES OF THE AGENCY" WITHIN
 THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE.  RATHER, THE
 INDIVIDUALS IN THESE POSITIONS ARE EXPERTS OR PROFESSIONALS WHOSE
 ACTIONS ASSIST IN IMPLEMENTING, AS OPPOSED TO SHAPING, THE ACTIVITY'S
 POLICIES IN THE AREA OF RELIABILITY, AVAILABILITY AND MAINTAINABILITY
 ENGINEERING.  IN THIS REGARD, THEIR DUTIES, INCLUDING WHEN THEY ACT AS
 PROJECT LEADERS AND WHEN THEY REPRESENT THE ACTIVITY IN MEETINGS WITH
 OTHER AGENCIES, ARE LIMITED TO USING THEIR TECHNICAL EXPERTISE IN THE
 AREA OF ANALYZING HARDWARE, DEVELOPING MEASUREMENTS OF OBJECTIVES AND
 EFFECTIVENESS DURING THE CONDUCT OF TESTING, AND PROPERLY ANALYZING THE
 TEST DATA.  THEIR RECOMMENDATIONS ARE LIMITED TO TECHNICAL MATTERS IN
 THE AREA OF THEIR PROFESSIONAL EXPERTISE, AND INVOLVE RENDERING ADVICE
 RATHER THAN FORMULATING, DETERMINING OR INFLUENCING AGENCY POLICY.
 ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE INDIVIDUALS IN JOB NUMBER
 63004, GENERAL ENGINEER, GS-801-13, SHOULD BE INCLUDED IN THE
 EXCLUSIVELY RECOGNIZED UNIT.
 
    JOB NUMBER 60430, ENGINEERING PSYCHOLOGIST, GS-180-13
 
    THE AUTHORITY FINDS THAT THE ENGINEERING PSYCHOLOGIST, GS-180-13, IS
 NOT A MANAGEMENT OFFICIAL INASMUCH AS HE DOES NOT "FORMULATE, DETERMINE
 OR INFLUENCE THE POLICIES OF THE AGENCY" WITHIN THE MEANING OF SECTION
 7103(A)(11) OF THE STATUTE.  RATHER, THE INDIVIDUAL IN THIS POSITION IS
 AN EXPERT OR PROFESSIONAL WHO ASSISTS IN IMPLEMENTING, AS OPPOSED TO
 SHAPING, THE ACTIVITY'S POLICIES IN THE AREA OF HUMAN FACTORS AND
 ENGINEERING PSYCHOLOGY FOR GIVEN TEST PROGRAMS.  IN THIS REGARD, HIS
 ROLE IS LIMITED TO USING HIS TECHNICAL AND PROFESSIONAL EXPERTISE, AND
 ANY RECOMMENDATIONS HE MAKES ARE LIMITED TO TECHNICAL MATTERS OF
 ENGINEERING PSYCHOLOGY.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT JOB
 NUMBER 60430, ENGINEERING PSYCHOLOGIST, GS-180-13, SHOULD BE INCLUDED IN
 THE EXCLUSIVELY RECOGNIZED UNIT.
 
                           DIRECTION OF ELECTION
 
    IN VIEW OF THE ABOVE, AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED
 AMONG THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE AS SOON AS FEASIBLE.
 THE APPROPRIATE REGIONAL DIRECTOR SHALL SUPERVISE OR CONDUCT THE
 ELECTION, AS APPROPRIATE, SUBJECT TO THE AUTHORITY'S RULES AND
 REGULATIONS.  ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
 DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
 INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT 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 QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
 PAYROLL PERIOD AND HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
 ELECTION DATE.  THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
 BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1975, INDEPENDENT.
 
    ISSUED, WASHINGTON, D.C. APRIL 6, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER-- . . .
 
    (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(.)
 
    /2/ IN MAKING DECISIONS AS TO POSITIONS INCLUDED IN APPROPRIATE
 UNITS, THE AUTHORITY HAS PREVIOUSLY DETERMINED NOT TO RESOLVE ISSUES
 INVOLVING VACANT POSITIONS.  SEE, E.G., DEPARTMENT OF THE NAVY,
 AUTOMATIC DATA PROCESSING SELECTION OFFICE, SUPRA, AT N. 11.
 
    /3/ ID.