08:0702(121)CU - Defense Communications Engineering Center, Reston, Virginia and AFGE Local 2 -- 1982 FLRAdec RP

 8 FLRA No. 121
 
 DEFENSE COMMUNICATIONS
 ENGINEERING CENTER,
 RESTON, VIRGINIA
 Activity/Petitioner
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 2, AFL-CIO
 Labor Organization
 
                                            Case No. 3-CU-56
 
                    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 (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 PETITIONER, DEFENSE COMMUNICATIONS
 ENGINEERING CENTER (ACTIVITY), SEEKS TO CLARIFY TWO EXISTING EXCLUSIVELY
 RECOGNIZED UNITS COMPOSED OF ALL (APPROXIMATELY 125) PROFESSIONAL
 EMPLOYEES IN ONE UNIT, AND ALL (APPROXIMATELY 76) NONPROFESSIONAL
 EMPLOYEES IN THE SECOND UNIT, TO EXCLUDE THE INCUMBENTS OF 99 POSITIONS
 FROM THE UNITS ON THE GROUND THEY ARE MANAGEMENT OFFICIALS WITHIN THE
 MEANING OF THE STATUTE.  THE EXCLUSIVE REPRESENTATIVE, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO (UNION), CONTENDS,
 IN ESSENCE, THAT THE EMPLOYEES IN THE DISPUTED POSITIONS ARE NOT
 MANAGEMENT OFFICIALS, BUT MERELY HIGHLY SKILLED EXPERTS RENDERING
 RESOURCE INFORMATION, AND THEREFORE SHOULD REMAIN INCLUDED IN THE
 BARGAINING UNITS.
 
    THE UNION WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF BOTH
 BARGAINING UNITS IN 1978.  THE ACTIVITY CONTENDS THAT WHILE ALL OF THE
 EMPLOYEES IN THE DISPUTED POSITIONS HEREIN WERE INCLUDED IN THE
 BARGAINING UNITS AT THE TIME OF CERTIFICATION UNDER EXECUTIVE ORDER
 11491, AS AMENDED, THEY SHOULD NOW BE EXCLUDED AS "MANAGEMENT OFFICIALS"
 UNDER THE STATUTE.  IN THIS REGARD, THE ACTIVITY CONTENDS THAT, AS A
 CONSEQUENCE OF THE CIVIL SERVICE REFORM ACT OF 1978 AND ITS "MERIT PAY"
 PROVISIONS, A REVIEW OF THESE POSITIONS INDICATES THAT THE INCUMBENTS
 MEET THE DEFINITION OF "MANAGEMENT OFFICIAL" AS CONTAINED IN THE
 STATUTE;  THAT SUCH NONSUPERVISORY PERSONNEL COULD NOT BE CLASSIFIED AT
 THE GS 13-15 LEVEL UNLESS THEIR POSITIONS "CLEARLY IMPACT POLICY,
 BROAD-RANGING PROGRAMS, OR KEY PROCEDURES;" AND THAT THE MISSION OF THE
 ACTIVITY ITSELF IS "POLICY AND PROGRAM FORMULATION, DEVELOPMENT,
 ASSESMENT AND DIRECTION."
 
    SECTION 7103(A)(11) OF THE STATUTE DEFINES "MANAGEMENT OFFICIAL" AS:
 
    . . . 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(.)
 
    IN THE LEAD CASE OF DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING
 SECTION OFFICE, 7 FLRA NO. 24(1981), THE AUTHORITY INTERPRETED THAT
 DEFINITION 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 ISSUE IS WHETHER THE INCUMBENTS
 OF THE 99 DISPUTED POSITIONS ARE MANAGEMENT OFFICIALS WITHIN THE
 FOREGOING DEFINITION, AS INTERPRETED BY THE AUTHORITY.
 
    THE ACTIVITY IS A MANAGEMENT STAFF ORGANIZATION, PRODUCING POLICIES,
 PROGRAMS, OPERATING PROCEDURES AND OTHER TYPES OF GUIDANCE FOR THE
 DEFENSE COMMUNICATIONS SYSTEM (DCS).  THE ACTIVITY IS RESPONSIBLE FOR
 THE DESIGN, DEVELOPMENT AND OVERALL ENGINEERING MANAGEMENT DIRECTION OF
 THE WORLDWIDE COMPLEX OF COMMUNICATIONS NETWORKS, SYSTEM CONTROL
 CENTERS, OPERATING INSTALLATIONS AND RELATED FACILITIES OF THE DCS.  THE
 DCS PROVIDES COMMUNICATIONS FOR THE PRESIDENT, SECRETARY OF DEFENSE,
 JOINT CHIEFS OF STAFF, UNIFIED AND SPECIFIED MILITARY COMMANDS,
 SUBORDINATE COMMANDS, AND OTHER GOVERNMENT AGENCIES.  NORMALLY, THE
 ACTIVITY DOES NOT BUILD OR OPERATE THESE FACILITIES;  THESE FUNCTIONS
 ARE EITHER CONTRACTED OUT TO PRIVATE INDUSTRY OR PERFORMED BY PERSONNEL
 OF THE MILITARY DEPARTMENTS - ARMY, NAVY OR AIR FORCE.
 
    THE ACTIVITY IS ORGANIZED INTO 6 OFFICES AND 6 DIVISIONS, /1/ EACH OF
 WHICH REPORTS DIRECTLY TO THE DIRECTOR;  THE DIVISIONS ARE FURTHER
 SUBDIVIDED INTO 3 OR MORE BRANCH OFFICES.  ALL BUT 5 OF THE 99 DISPUTED
 POSITIONS ARE LOCATED IN THE VARIOUS BRANCH OFFICES THROUGHOUT THE
 ORGANIZATION, WHILE 2 ARE LOCATED IN THE OFFICE OF TECHNOLOGY, 2 ARE IN
 THE OFFICE OF INTEROPERABILITY AND STANDARDS, AND ONE IS IN THE DIVISION
 OF SYSTEM CONTROL AND GENERAL ENGINEERING.  THE ACTIVITY SEEKS TO
 EXCLUDE 94 OF THE 125 EMPLOYEES IN THE PROFESSIONAL UNIT AND 5 OF THE 76
 EMPLOYEES IN THE NONPROFESSIONAL UNIT.  WHILE THE DISPUTED POSITIONS
 FALL INTO 9 CLASSIFICATIONS, 85 OF THEM ARE CLASSIFIED AS ELECTRONIC
 ENGINEER, GS 855-15, -14, -13.  THERE ARE 4 POSITIONS CLASSIFIED AS
 COMMUNICATIONS SPECIALIST, GS 393-14, -13, (NONPROFESSIONAL) AND ANOTHER
 4 CLASSIFIED AS OPERATIONS RESEARCH ANALYST, GS 1515-15, -14.  THE
 REMAINING 6 POSITIONS ARE IN THE FOLLOWING CLASSIFICATIONS:  ELECTRICAL
 ENGINEER, GS 850-14;  INDUSTRIAL ENGINEER, GS 896-14;  MECHANICAL
 ENGINEER, GS 830-14;  COMPUTER SCIENTIST GS 1550-14;  COMPUTER
 SPECIALIST GS 334-14 (NONPROFESSIONAL);  AND ELECTRONIC
 ENGINEER/COMPUTER SCIENTIST, GS 855/1550-14.
 
    THE EVIDENCE ESTABLISHES THAT, WITH VARIATIONS ATTRIBUTABLE TO LENGTH
 OF EXPERIENCE AND BREADTH OF TRAINING, ALL OF THE EMPLOYEES IN THE
 DISPUTED CLASSIFICATIONS ARE HIGHLY SKILLED TECHNICAL SPECIALISTS IN THE
 DEVELOPMENT AND IMPLEMENTATION OF TELECOMMUNICATIONS SYSTEMS.  WITH SOME
 VARIATIONS ATTRIBUTABLE TO THEIR RESPECTIVE AREAS OF SPECIALIZATION, AS
 REFLECTED IN THE DIFFERENT CLASSIFICATIONS AT ISSUE HEREIN, ALL SUCH
 EMPLOYEES ARE ENGAGED IN DEVELOPING MANUALS AND PROCEDURES FOR THE
 OPERATION, MAINTENANCE AND REPAIR OF THE DCS;  DEVELOPING CRITERIA FOR
 AWARDING RESEARCH AND DEVELOPMENT CONTRACTS;  DEVELOPING CRITERIA FOR
 THE EVALUATION OF WORK PERFORMED UNDER CONTRACT;  AND DEFINING THE
 DIRECTION AND MODE OF FUTURE DEVELOPMENT OF TELECOMMUNICATIONS SYSTEMS.
 THEY ALL WORK WITH MINIMAL SUPERVISION WITHIN THEIR AREAS OF
 SPECIALIZATION, AND MAKE TECHNICAL RECOMMENDATIONS BASED UPON THEIR
 SCIENTIFIC OR ENGINEERING EXPERTISE WHICH ARE GENERALLY ACCEPTED BY
 THEIR SUPERVISORS AT THE BRANCH OFFICE LEVEL AND AT SUCCESSIVE LEVELS OF
 REVIEW WITHIN THE ACTIVITY.
 
    BASED UPON THE ENTIRE RECORD, THE AUTHORITY CONCLUDES THAT THE
 INCUMBENTS OF THE 99 DISPUTED 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,
 AS THOSE TERMS WERE INTERPRETED BY THE AUTHORITY IN DEPARTMENT OF THE
 NAVY, AUTOMATIC DATA PROCESSING SELECTION OFFICE.  RATHER, THE
 INDIVIDUALS IN THESE POSITIONS ARE HIGHLY SKILLED EXPERTS OR
 PROFESSIONALS WHOSE FUNCTIONS ARE LIMITED TO INDEPENDENT TECHNICAL WORK
 CONCERNING RESEARCH AND DEVELOPMENT, SYSTEM DESIGNS, SPECIFICATIONS AND
 STANDARDS, AND ENGINEERING PLANNING UPON WHICH RESOURCE COMMITMENT
 DECISIONS INVOLVING COMMUNICATIONS ARE BASED, NOT ONLY IN DCA, BUT ALSO
 IN THE MILITARY DEPARTMENTS INVOLVED IN IMPLEMENTING, OPERATING,
 MAINTAINING AND BUILDING THE DCS.  THAT IS, THE INDIVIDUALS IN QUESTION
 MERELY CONDUCT INITIAL STEPS IN A PROCESS, WHICH IS SUBJECT TO EXTENSIVE
 REVIEW, LEADING TO THE ESTABLISHMENT OF COMMUNICATIONS POLICY, BUT DO
 NOT THEMSELVES CREATE, SETTLE UPON OR BRING ABOUT THE AGENCY'S GENERAL
 PRINCIPLES, PLANS OR COURSES OF ACTION.
 
    MOREOVER, AS THE AUTHORITY NOTED IN THE AUTOMATIC DATA PROCESSING
 SELECTION OFFICE CASE, SUPRA, IN DISCUSSING THE LEGISLATIVE HISTORY OF
 THE STATUTE, THERE IS AN INDICATION OF ". . . A GENERAL CONGRESSIONAL
 INTENT THAT A MANAGEMENT OFFICIAL IS AN INDIVIDUAL WHO IS IDENTIFIED
 WITH MANAGEMENT AND WHO, BY VIRTUE OF HIS OR HER STATURE AND LEVEL OF
 RESPONSIBILITY WITHIN AN AGENCY, MUST HAVE THE INTERESTS OF AGENCY
 MANAGEMENT AS HIS OR HER PRIMARY CONCERN IN THE CONTEXT OF A COLLECTIVE
 BARGAINING RELATIONSHIP." AS THE RECORD REVEALS THAT THE WORK PRODUCT
 AND RESPONSIBILITY OF EMPLOYEES IN THE DISPUTED CLASSIFICATIONS RELATES
 TO THE DCS, WHICH IS BUILT, OPERATED, MAINTAINED AND REPAIRED BY PERSONS
 NOT EMPLOYED BY THE ACTIVITY, AND INASMUCH AS SUCH EMPLOYEES HAVE BEEN
 INCLUDED IN THE BARGAINING UNITS EXCLUSIVELY REPRESENTED BY THE UNION
 SINCE 1978 WITH NO REAL OR APPARENT CONFLICT OF INTEREST HAVING BEEN
 DEMONSTRATED IN THE RECORD BETWEEN THEIR OFFICIAL DUTIES AND
 RESPONSIBILITIES AND THEIR INCLUSION IN UNITS OF EXCLUSIVE RECOGNITION,
 THE AUTHORITY CONCLUDES THAT THE INCUMBENTS IN THESE POSITIONS ARE NOT
 MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE STATUTE AND THEREFORE
 SHOULD REMAIN IN THE CERTIFIED UNITS.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNITS SOUGHT TO BE CLARIFIED, FOR WHICH
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO IS THE
 CERTIFIED EXCLUSIVE REPRESENTATIVE BE, AND THEY HEREBY ARE, CLARIFIED BY
 INCLUDING IN THE PROFESSIONAL UNIT EMPLOYEES CLASSIFIED AS ELECTRONIC
 ENGINEER, GS 855-15, -14, -13;  OPERATIONS RESEARCH ANALYST, GS 1515-15,
 -14;  ELECTRICAL ENGINEER, GS 850 -14;  INDUSTRIAL ENGINEER, GS 896-14;
 MECHANICAL ENGINEER, GS 830-14;  COMPUTER SCIENTIST, GS 1550-14;  AND
 ELECTRONIC ENGINEER/ COMPUTER SCIENTIST, GS 855/1550-14;  AND BY
 INCLUDING IN THE NONPROFESSIONAL UNIT EMPLOYEES CLASSIFIED AS
 COMMUNICATIONS SPECIALIST, GS 393-14, -13;  AND COMPUTER SPECIALIST,
 GS-334-14.
 
    ISSUED, WASHINGTON, D.C., MAY 20, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE OFFICE OF ENGINEERING PROGRAMS;  THE OFFICE OF TECHNOLOGY;
 THE OFFICE OF ENGINEERING PLANNING;  THE OFFICE OF INTEROPERABILITY AND
 STANDARDS;  THE OFFICE OF PERSONNEL;  THE OFFICE OF MANAGEMENT SERVICES;
  DIVISION OF TRANSMISSION ENGINEERING;  DIVISION OF SYSTEM CONTROL AND
 GENERAL ENGINEERING;  DIVISION OF SATCOM ENGINEERING;  DIVISION OF
 SWITCHED NETWORKS ENGINEERING;  DIVISION OF SYSTEMS ENGINEERING;  AND
 DIVISION OF COMPUTER SYSTEMS.  THREE OF THE OFFICES-- ENGINEERING
 PROGRAMS, TECHNOLOGY, AND ENGINEERING PLANNING-- ARE EACH HEADED BY AN
 ASSOCIATE DIRECTOR;  THE OTHER THREE OFFICES, LIKE THE DIVISIONS AND THE
 BRANCHES, ARE HEADED BY A CHIEF.
 
    /2/ OF COURSE, IT IS NOT WITHIN THE JURISDICTION OF THE AUTHORITY TO
 MAKE DETERMINATIONS AS TO WHETHER SUCH INDIVIDUALS MAY BE CONSIDERED
 MANAGEMENT OFFICIALS BY THE ACTIVITY FOR MERIT PAY PURPOSES, AND THE
 FOREGOING DECISION SHOULD NOT BE SO CONSTRUED.  INTERPRETATION AND
 GUIDANCE, 4 FLRA NO. 99(1980).