08:0711(123)CU - Massachusetts Army NG, TAGO, NG Bureau, DOD and NFFE Local l029 -- 1982 FLRAdec RP

 8 FLRA No. 123
 
 MASSACHUSETTS ARMY NATIONAL GUARD, TAGO,
 NATIONAL GUARD BUREAU, DEPARTMENT OF DEFENSE
 Activity
 
 and
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1029
 Petitioner/Labor Organization
 
                                            Case No. 1-CU-18
 
                    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 HEARING OFFICER'S RULINGS MADE AT THE
 HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING A BRIEF FILED
 BY THE ACTIVITY, THE AUTHORITY FINDS:  ESSENTIALLY, WHEREAS THE
 PETITIONER (NFFE) SEEKS TO CLARIFY ITS EXISTING UNIT /1/ BY INCLUDING
 INCUMBENTS IN VARIOUS JOB CLASSIFICATIONS, THE ACTIVITY CONTENDS THAT
 THE INCUMBENTS IN THESE CLASSIFICATIONS ARE SUPERVISORS, MANAGEMENT
 OFFICIALS, OR PROFESSIONAL EMPLOYEES.
 
    SUPERVISORS /2/
 
    RECRUITING AND RETENTION SPECIALIST, GS-0301-09
 
    IN THE AUTHORITY'S VIEW, THE INCUMBENT, WHO ALLEGEDLY SUPERVISES A
 CLERK-TYPIST AND A TECHNICIAN, EACH OF WHOM IS NOW IN A FULL TIME
 MILITARY POSITION, DOES NOT SUPERVISE ANY "EMPLOYEE" WITHIN THE MEANING
 OF SECTION 7103(A)(2) OF THE STATUTE, /3/ AND IS THEREFORE NOT A
 SUPERVISOR AND SHALL BE INCLUDED IN THE BARGAINING UNIT.
 
    LEAD PURCHASING AGENT, GS-1105-06
 
    IN THE AUTHORITY'S VIEW, THE INCUMBENT, WHO IS IN CHARGE OF THREE
 SUBORDINATES, ESTABLISHES THE PRIORITY OF THEIR WORK, APPROVES THEIR
 LEAVE, REVIEWS AND IS HELD RESPONSIBLE FOR THEIR WORK PRODUCT, COUNSELS
 THEM, AND HAS GIVEN WRITTEN REPRIMANDS AND MADE EFFECTIVE
 RECOMMENDATIONS WITH REGARD TO AWARDS AND QUALITY STEP INCREASES AND
 WHO
 CONSISTENTLY EXERCISES INDEPENDENT JUDGMENT WITH REGARD TO THE ABOVE,
 THEREFORE IS A SUPERVISOR WITHIN THE MEANING OF THE STATUTE AND IS
 EXCLUDED FROM THE BARGAINING UNIT.
 
    TRANSPORTATION SPECIALIST, GS-2101-08
 
    IN THE AUTHORITY'S VIEW, THE INCUMBENT, WHO EVALUATES ONE
 SUBORDINATE, APPROVES HIS LEAVE, ESTABLISHES THE PRIORITY OF HIS WORK,
 IS RESPONSIBLE FOR HIS WORK PRODUCT, AND HAS EFFECTIVELY RECOMMENDED HIS
 SELECTION AND SUBSEQUENT AWARDS, AND WHO CONSISTENTLY EXERCISES
 INDEPENDENT JUDGMENT WITH REGARD TO THE ABOVE, THEREFORE IS A SUPERVISOR
 WITHIN THE MEANING OF THE STATUTE AND IS EXCLUDED FROM THE BARGAINING
 UNIT.
 
    OPERATIONS AND TRAINING SPECIALIST, GS-0301-10 AND GS-0301-09 (OTS)
 
    IN THE AUTHORITY'S VIEW, THE INCUMBENTS IN THESE POSITIONS (FOUR IN
 GS-0301-10 AND 15 IN GS-0301-09), WHO ASSIGN AND SET THE WORK PRIORITIES
 OF ALL OTHER SPECIALISTS, COUNSEL THE SPECIALISTS, AND HAVE EFFECTIVELY
 RECOMMENDED EITHER DISCIPLINE OR AWARDS FOR THOSE SPECIALISTS, AND WHO
 CONSISTENTLY EXERCISE INDEPENDENT JUDGMENT WITH REGARD TO THE ABOVE,
 THEREFORE ARE SUPERVISORS WITHIN THE MEANING OF THE STATUTE AND ARE
 EXCLUDED FROM THE BARGAINING UNIT.
 
    MANAGEMENT OFFICIALS /4/ OR PROFESSIONAL EMPLOYEES /5/
 
    IN THE AUTHORITY'S VIEW, THE INCUMBENTS CLASSIFIED AS AIRCRAFT AND
 FLIGHT INSTRUCTORS (SAFETY), GS-2181-12 WHO EVALUATE AVIATOR FLIGHT
 TECHNIQUES AND CAPABILITIES AND THE EXTENT TO WHICH FURTHER TRAINING MAY
 BE REQUIRED FOR FULL QUALIFICATION, IN ALL CASES SUBJECT TO REVIEW BY
 HIGHER AUTHORITY, IMPLEMENT RATHER THAN SHAPE ACTIVITY POLICIES AND ARE
 THEREFORE NOT MANAGEMENT OFFICIALS WITHIN THE MEANING OF SECTION
 7103(A)(11) OF THE STATUTE /6/ AND ARE INCLUDED IN THE BARGAINING UNIT.
 
    WITH RESPECT TO THE INCUMBENT'S ALLEGED "PROFESSIONAL" STATUS, IN THE
 AUTHORITY'S VIEW, AS THE QUALIFICATIONS FOR THE POSITION DO NOT REQUIRE
 "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" AND THE
 RECORD HAS NOT ESTABLISHED THAT THE INCUMBENTS HAVE OTHERWISE MET THE
 DEFINITION OF "PROFESSIONAL EMPLOYEES" WITHIN THE MEANING OF SECTION
 7103(A)(15) OF THE STATUTE, THEY ARE INCLUDED IN THE BARGAINING UNIT.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN BE,
 AND IT HEREBY IS, CLARIFIED TO INCLUDE THE INCUMBENTS IN THE POSITIONS
 OF RECRUITING AND RETENTION SPECIALIST, GS-0301-09, AND AIRCRAFT AND
 FLIGHT INSTRUCTOR (SAFETY), GS-2181-12.
 
    IT IS HEREBY FURTHER ORDERED THAT, WITH RESPECT TO ALL OTHER
 POSITIONS SOUGHT TO BE INCLUDED, BUT WHICH THE AUTHORITY HAS FOUND MUST
 BE EXCLUDED FROM THE BARGAINING UNIT, THE PETITION IN THIS CASE IS
 HEREBY DISMISSED.
 
    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 PETITIONER WAS CERTIFIED ON JULY 19, 1976, AS THE EXCLUSIVE
 REPRESENTATIVE OF A UNIT CONSISTING OF:  ALL MASSACHUSETTS ARMY NATIONAL
 GUARD TECHNICIANS, EXCLUDING ALL MANAGEMENT OFFICIALS, SUPERVISORS (AS
 DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED) AND EMPLOYEES ENGAGED IN
 FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.
 
    /2/ SECTION 7103(A)(10) OF THE STATUTE DEFINES A "SUPERVISOR" AS:
 
    . . . AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING AUTHORITY IN THE
 INTEREST OF THE AGENCY TO
 
    HIRE, DIRECT, ASSIGN, PROMOTE, REWARD, TRANSFER, FURLOUGH, LAYOFF,
 RECALL, SUSPEND,
 
    DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR GRIEVANCES, OR TO
 EFFECTIVELY RECOMMEND SUCH
 
    ACTION, IF THE EXERCISE OF THE AUTHORITY IS NOT MERELY ROUTINE OR
 CLERICAL IN NATURE BUT
 
    REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT(.)
 
    /3/ SEE, NORTH CAROLINA AIR NATIONAL GUARD, CHARLOTTE, NORTH
 CAROLINA, 4 FLRA NO. 44(1981).
 
    /4/ SECTION 7103(A)(11) OF THE STATUTE DEFINES A "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(.)
 
    /5/ SECTION 7103(A)(15) OF THE STATUTE PROVIDES:
 
    (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 OF TIME;
 OR
 
    (B) AN EMPLOYEE WHO HAS COMPLETED THE COURSES OF SPECIALIZED
 INTELLECTUAL INSTRUCTION AND
 
    STUDY DESCRIBED IN SUBPARAGRAPH (1)(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(.)
 
    /6/ DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION
 OFFICE, 7 FLRA NO. 24(1981).