[ v08 p707 ]
08:0707(122)CU
The decision of the Authority follows:
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.