08:0707(122)CU - Navy, Civil Engineering Laboratory, Port Hueneme, CA and Federal Union of Scientists and Engineers, Local R12-196, NAGE -- 1982 FLRAdec RP

 8 FLRA No. 122
 
 DEPARTMENT OF THE NAVY
 CIVIL ENGINEERING LABORATORY,
 PORT HUENEME, CALIFORNIA
 Activity/Petitioner
 
 and
 
 FEDERAL UNION OF SCIENTISTS
 AND ENGINEERS, LOCAL R12-196,
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES
 Labor Organization
 
                             Case No. 8-CU-17
 
         DECISION AND ORDER ON PETITION FOR CLARIFICATION OF UNIT
 
    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 HEARING OFFICER'S
 RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE
 HEREBY AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
 PARTIES, THE AUTHORITY FINDS:
 
    THE ACTIVITY SEEKS TO CLARIFY AN EXISTING EXCLUSIVELY RECOGNIZED UNIT
 OF PROFESSIONAL EMPLOYEES OF THE CIVIL ENGINEERING LABORATORY, PORT
 HUENEME, CALIFORNIA TO EXCLUDE 54 POSITIONS, CONTENDING THAT THE
 INCUMBENTS OF SUCH POSITIONS ARE MANAGEMENT OFFICIALS AS DEFINED IN
 SECTION 7103(A)(11) OF THE STATUTE.  /1/ THE INCUMBENT EXCLUSIVE
 REPRESENTATIVE CONTENDS THAT THE EMPLOYEES IN QUESTION ARE NOT
 MANAGEMENT OFFICIALS AND, THEREFORE, SHOULD NOT BE EXCLUDED FROM THE
 UNIT.
 
    THE ACTIVITY, A RESEARCH TEST FACILITY OF THE U.S. NAVY, DERIVES ITS
 OPERATING BUDGET FROM REIMBURSEMENT FOR WORK PERFORMED ON BEHALF OF
 CUSTOMERS OR SPONSORS WITHIN THE NAVY, THE DEPARTMENT OF DEFENSE, OR
 OTHER CLIENT AGENCIES.  THOSE SPONSORS PAY THEIR OWN ALLOCATED RESEARCH
 AND DEVELOPMENT FUNDS TO THE ACTIVITY TO PROCURE ITS SERVICES,
 FACILITIES AND EXPERTISE.
 
    OF THE APPROXIMATELY 309 CIVILIAN EMPLOYEES OF THE ACTIVITY, 162 ARE
 ENGINEERS AND/OR SCIENTISTS.  THE 54 POSITIONS IN QUESTION ARE ALL
 ENCUMBERED BY ENGINEERS AND/OR SCIENTISTS, THREE OF WHOM ARE GS-14S, 38
 ARE GS-13S AND 13 ARE GS-12S, WITHIN THE THREE DEPARTMENTS OF THE
 ACTIVITY'S TECHNICAL DIVISION.  /2/ THE INCUMBENTS IN THE POSITIONS AT
 ISSUE ARE DESIGNATED MAJOR PROJECT ENGINEERS OR SCIENTISTS, AND ARE ALSO
 SOMETIMES ENTITLED PRINCIPAL INVESTIGATORS, WHEN THEY HAVE A MAJOR
 PROJECT CURRENTLY ASSIGNED TO THEM.  THEIR PROFESSIONAL QUALIFICATIONS
 AND AREAS OF EXPERTISE ARE DIVERSE, BUT THE PARTIES STIPULATED THAT THEY
 SHARE THE SAME AUTHORITY AND RESPONSIBILITY, IF ANY, TO DETERMINE OR
 INFLUENCE AGENCY POLICY.
 
    THE PRINCIPAL INVESTIGATORS OR MAJOR PROJECT ENGINEERS AND SCIENTISTS
 ARE HIGHLY QUALIFIED PROFESSIONALS, SOME OF WHOM ENJOY NATIONAL OR
 INTERNATIONAL REPUTATIONS IN THEIR FIELDS OF EXPERTISE AND CONTRIBUTE TO
 SCHOLARLY JOURNALS AND TRIBUNALS.  AN IDEA FOR A MAJOR PROJECT MAY
 ORIGINATE WITH ONE OR MORE OF THE MAJOR PROJECT ENGINEERS OR SCIENTISTS,
 WHO WOULD ATTEMPT TO SELL IT TO A SPONSOR OR TO THE ACTIVITY, OR BOTH.
 NEVERTHELESS, THE DECISION TO FUND A PROJECT AND THE DETERMINATION AS TO
 THE LEVEL OF FUNDING ARE DECISIONS MADE BY POTENTIAL SPONSORS BASED IN
 LARGE PART UPON CONSIDERATIONS OUTSIDE THE CONTROL OR KNOWLEDGE OF THE
 MAJOR PROJECT ENGINEERS OR SCIENTISTS.  SIMILARLY, THE DECISION TO
 ACCEPT A PROJECT MUST BE MADE BY THE ACTIVITY'S SUPERVISORY HIERARCHY ON
 THE BASIS OF AVAILABLE RESOURCES AND MATERIAL.  USUALLY, THE MAJOR
 PROJECT ENGINEER OR SCIENTIST WHO ORIGINATES A PROJECT BECOMES THE
 ASSIGNED PRINCIPAL INVESTIGATOR.  DURING THE DEVELOPMENT STAGE, THE
 PRINCIPAL INVESTIGATOR MAY DETERMINE TO CONTRACT OUT A PORTION OF A
 PROJECT, BUT MAY NOT ENTER INTO ANY CONTRACTUAL COMMITMENTS.  THE
 PRINCIPAL INVESTIGATOR INFLUENCES DECISIONS CONCERNING THE INITIAL
 APPROACH TO BE TAKEN ON A PROJECT, CHANGES IN THAT APPROACH, DECISIONS
 TO TERMINATE, AND DECISIONS TO CONTINUE DESPITE SEEMING FAILURE.
 HOWEVER, SUCH DECISIONS ARE SUBJECT TO REVIEW BY HIGHER AUTHORITY AND
 ARE NOT UNIFORMALY SUSTAINED.  FINALLY, ALTHOUGH THE PRINCIPAL
 INVESTIGATORS OR MAJOR PROJECT ENGINEERS AND SCIENTISTS HAVE EXTENSIVE
 CONTACTS OUTSIDE THE ACTIVITY, THEY ARE EXPECTED TO REPORT SUCH
 CONTACTS, TO OPERATE WITHIN ACTIVITY GUIDELINES, AND TO PROCURE ADVANCE
 APPROVAL BEFORE DISCUSSING ANY PROJECT OR DECISION OF A MAJOR NATURE.
 
    AS NOTED ABOVE, SECTION 7103(A)(11) OF THE STATUTE DEFINES THE TERM
 "MANAGEMENT OFFICIAL." IN THE LEAD CASE OF DEPARTMENT OF THE NAVY,
 AUTOMATIC DATA PROCESSING SELECTION 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
 QUESTION HEREIN IS WHETHER THE INCUMBENTS OF THE POSITIONS AT ISSUE ARE
 MANAGEMENT OFFICIALS WITHIN THE CONFINES OF THE STATUTE, AS INTERPRETED
 BY THE AUTHORITY.
 
    THE AUTHORITY FINDS THAT THE INCUMBENTS IN THE POSITIONS OF PRINCIPAL
 INVESTIGATORS OR MAJOR PROJECT ENGINEERS AND SCIENTISTS 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 VALUABLE EXPERTS
 AND PROFESSIONALS WHOSE ACTIONS ASSIST IN IMPLEMENTING, AS OPPOSED TO
 SHAPING, THE ACTIVITY'S POLICIES IN THE AREAS OF RESEARCH AND
 DEVELOPMENT.  IN THIS REGARD, THE ROLE OF THE INCUMBENTS IS LIMITED TO
 DEVELOPMENT, RECOMMENDATION, EXPERT ADVICE AND PERFORMANCE OF RESEARCH
 AND DEVELOPMENT TASKS, BUT DOES NOT EXTEND BEYOND THAT TO A POINT OF
 CREATING, SETTLING UPON OR BRINGING ABOUT THE ACTIVITY'S POLICY
 DETERMINATIONS IN ANY OF THESE AREAS.  FURTHERMORE, IN THEIR ROLE OF
 ASSISTING IN THE IMPLEMENTATION OF POLICY, THEY DO NOT FUNCTION IN THE
 INTEREST OF MANAGEMENT IN A WAY WHICH WOULD CONFLICT WITH THEIR BEING
 REPRESENTED BY AN EXCLUSIVE BARGAINING REPRESENTATIVE.  ACCORDINGLY, THE
 INCUMBENTS OF THESE POSITIONS SHOULD REMAIN IN THE CERTIFIED UNIT.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 8-CU-17, SEEKING
 TO CLARIFY THE UNIT REPRESENTED EXCLUSIVELY BY FEDERAL UNION OF
 SCIENTISTS AND ENGINEERS, LOCAL R12-196, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, TO EXCLUDE CERTAIN EMPLOYEES AS MANAGEMENT
 OFFICIALS BE, AND IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
 
    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/ SECTION 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSES 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/ THE POSITIONS AT ISSUE ARE SET FORTH IN AN APPENDIX HERETO.