09:0016(2)CU - NG Bureau, State of New York, Division of Military and Naval Affairs, Albany, NY and ACT, Inc. -- 1982 FLRAdec RP

 9 FLRA No. 2
 
 NATIONAL GUARD BUREAU
 STATE OF NEW YORK
 DIVISION OF MILITARY
 AND NAVAL AFFAIRS,
 ALBANY, NEW YORK
 Activity
 
 and
 
 ASSOCIATION OF CIVILIAN
 TECHNICIANS, INC.
 Labor Organization
 
                                            Case No. 1-CU-22
 
                    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 THIS CASE, INCLUDING THE BRIEFS FILED BY
 BOTH PARTIES, THE AUTHORITY FINDS:
 
    THE ASSOCIATION OF CIVILIAN TECHNICIANS, INC., WAS RECOGNIZED BY THE
 ACTIVITY ON MAY 6, 1970, AS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR
 A UNIT OF ALL ARMY, AIR, AIR DEFENSE, NATIONAL GUARD TECHNICIANS, AND
 EMPLOYEES IN THE UNITED STATES PROPERTY AND FISCAL OFFICE LOCATED IN THE
 STATE OF NEW YORK.  ALL THE DISPUTED JOB CLASSIFICATIONS WHICH ARE THE
 SUBJECT OF THE INSTANT PROCEEDINGS ARE IN THE BARGAINING UNIT AT THE
 PRESENT TIME.  ESSENTIALLY, THE ACTIVITY'S PETITION SEEKS TO CLARIFY THE
 UNIT ELIGIBILITY OF CERTAIN EMPLOYEES /1/ AS A RESULT OF THE PARTIES'
 FAILURE TO AGREE ON THE APPLICABILITY OF THE STATUTE SECTION 7112(B)
 (EMPLOYEE EXCLUSIONS) TO THE BARGAINING UNIT.
 
    AT ISSUE HEREIN FOR UNIT ELIGIBILITY DETERMINATIONS ARE THE INCUMBENT
 IN THE POSITION OF PROGRAM AND MOBILITY TECHNICIAN, THE 12 INCUMBENTS IN
 THE POSITION OF EXAMINER AND THE 29 INCUMBENTS WITH THE TITLE OF SMALL
 SHOP CHIEFS IN THE ARMY AND AIR NATIONAL GUARD.  THE ACTIVITY ARGUES
 THAT THE PROGRAM AND MOBILITY TECHNICIAN AND THE EXAMINERS ARE
 "MANAGEMENT OFFICIALS" AND SHOULD BE EXCLUDED FROM THE UNIT OF
 ELIGIBILITY, AND THAT THE 29 SMALL SHOP CHIEFS ARE "SUPERVISORS" AND
 SHOULD BE EXCLUDED FROM THE UNIT OF ELIGIBILITY.
 
                            MANAGEMENT OFFICIAL
 
    IN DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION
 OFFICE, 7 FLRA NO. 24 (1981), THE LEAD CASE ON THIS SUBJECT MATTER, THE
 AUTHORITY INTERPRETED THE DEFINITION OF "MANAGEMENT OFFICIAL" IN SECTION
 7103(A)(11), /2/ 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.
 
    PROGRAM AND MOBILITY TECHNICIAN, GS-1601-8, F4501
 
    THE AUTHORITY FINDS THAT THE INCUMBENT'S ROLE IN MAKING BUDGET
 RECOMMENDATIONS, DEVELOPING JOB DESCRIPTIONS AS WELL AS ACTING AS A
 RESOURCE OF EXPERT OPINION FOR HIGHER LEVEL DECISIONS ON PLANNING,
 PROGRAMS, REORGANIZATION, AND PERSONNEL MATTERS, TO BE THAT OF A
 VALUABLE EXPERT OR PROFESSIONAL WHOSE ACTIONS ASSIST IN IMPLEMENTING, AS
 OPPOSED TO SHAPING THE ACTIVITY'S POLICIES.  THUS, THE RECORD IS CLEAR
 THAT THE INCUMBENT DOES NOT EXERCISE ANY DUTIES AND RESPONSIBILITIES
 WHICH REQUIRE OR AUTHORIZE HIM TO FORMULATE, DETERMINE, OR INFLUENCE THE
 POLICIES OF THE ACTIVITY WITHIN THE MEANING OF SECTION 7103(A)(11) OF
 THE STATUTE, AS INTERPRETED BY THE AUTHORITY IN DEPARTMENT OF THE NAVY,
 AUTOMATIC DATA PROCESSING SELECTION OFFICE, SUPRA.  THEREFORE, THE
 AUTHORITY SHALL ORDER THAT PROGRAM AND MOBILITY TECHNICIAN, GS-1601-8,
 F4501, REMAIN INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
 
    EXAMINERS, GS-09, R0601
 
    THE AUTHORITY FINDS THAT THE INCUMBENTS' ROLE IN CONDUCTING AUDITS
 AND INTERNAL REVIEWS AND SUBSEQUENT RECOMMENDATIONS TO BE THAT OF A
 VALUABLE EXPERT OR PROFESSIONAL WHOSE ACTIONS ASSIST IN IMPLEMENTING, AS
 OPPOSED TO SHAPING THE ACTIVITY'S POLICIES.  THUS, THE RECORD IS CLEAR
 THAT THE INCUMBENTS DO NOT EXERCISE ANY DUTIES AND RESPONSIBILITIES
 WHICH REQUIRE OR AUTHORIZE THEM TO FORMULATE, DETERMINE, OR INFLUENCE
 THE POLICIES OF THE ACTIVITY WITHIN THE MEANING OF SECTION 7103(A)(11)
 OF THE STATUTE, AS INTERPRETED BY THE AUTHORITY IN DEPARTMENT OF THE
 NAVY, AUTOMATIC DATA PROCESSING SECTION OFFICE, SUPRA.  THEREFORE, THE
 AUTHORITY SHALL ORDER THAT THE EXAMINERS, GS-09, R0601, REMAIN INCLUDED
 IN THE EXCLUSIVELY RECOGNIZED UNIT.
 
                              SUPERVISORS /3/
 
    SMALL SHOP CHIEFS /4/
 
    THE AUTHORITY FINDS THAT ONE OR MORE OF THE FOLLOWING CHARACTERISTICS
 ARE DESCRIPTIVE OF THE INCUMBENTS IN ISSUE:  RESPONSIBILITY FOR
 ASSIGNING WORK TO CIVILIAN SUBORDINATES AND ASSURING WORK COMPLETION,
 RESPONSIBILITY TO RECOMMEND EMPLOYEES FOR HIRE, PROMOTION, AWARDS, OR
 ADVERSE ACTION, THE RESPONSIBILITY TO APPROVE OR DISAPPROVE LEAVE, THE
 RESPONSIBILITY TO TRAIN AND ADVISE SUBORDINATES AND ADJUST GRIEVANCES.
 FURTHER, THE INCUMBENTS IN THESE POSITIONS CONSISTENTLY USE INDEPENDENT
 JUDGMENT IN THE EXERCISE OF THEIR AUTHORITY.  ACCORDINGLY, THE AUTHORITY
 FINDS THE INCUMBENTS IN THE ABOVE POSITIONS ARE SUPERVISORS WITHIN THE
 MEANING OF SECTION 7103(A)(10) AND SHALL ORDER THAT THEIR POSITIONS BE
 EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT.
 
    ELECTRONIC MECHANIC (TELEPHONE), WG-13, F3129, IN THE ROSLYN UNIT
 
    THE INCUMBENT SUPERVISES ONLY GUARDSMEN.  AS NOTED, SECTION
 7103(A)(10) OF THE STATUTE DEFINES "SUPERVISOR" AS AN INDIVIDUAL HAVING
 CERTAIN AUTHORITY OVER "EMPLOYEES." SECTION 7103(A)(2) DEFINES
 "EMPLOYEE" FOR THE PURPOSES OF THE STATUTE AS AN INDIVIDUAL EMPLOYED IN
 AN AGENCY, BUT DOES NOT INCLUDE A MEMBER OF THE UNIFORMED SERVICES.  /5/
 THE AUTHORITY FINDS THAT THE GUARDSMEN SUPERVISED BY THE INCUMBENT ARE
 MEMBERS OF THE UNIFORMED SERVICES AND ARE NOT "EMPLOYEES" WITHIN THE
 MEANING OF THE STATUTE.  /6/ THEREFORE, THE AUTHORITY FINDS THAT THE
 INCUMBENT IS NOT A SUPERVISOR AS DEFINED IN THE STATUTE, AND SHALL ORDER
 THAT ELECTRONIC MECHANIC (TELEPHONE), WG-13, F3129, REMAIN IN THE
 EXCLUSIVELY RECOGNIZED UNIT.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN FOR
 WHICH THE ASSOCIATION OF CIVILIAN TECHNICIANS, INC., WAS RECOGNIZED AS
 THE EXCLUSIVE REPRESENTATIVE ON MAY 6, 1970, BE, AND, IT HEREBY IS,
 CLARIFIED BY EXCLUDING FROM SAID UNIT THE FOLLOWING POSITIONS:
 
    IN THE SYRACUSE UNIT, ELECTRONIC MECHANIC (RADIO), WG-14, F3071, AUTO
 MECHANIC, WG-12, F4724, AIRCRAFT REFUELING VEHICLE OPERATOR, WG-09,
 F6417, FABRIC WORKER, WG-11, F9214, AIRCRAFT ELECTRONIC, WG-11,
 F4538100, AIRCRAFT PNEUDRALIC SYSTEMS MECHANIC, WG-11, F4541100,
 ELECTRONIC MECHANIC (POWER), WG-14, F3079, AIRCRAFT ORDINANCE SYSTEMS
 MECHANIC, WG-11, F4544100, ELECTRONIC MECHANIC, WG-12, F4567, NDI
 TESTER, WG-11, F5316100.  IN THE NIAGARA FALLS UNIT, AIRCRAFT REFUELING
 VEHICLE OPERATOR, WG-09, F6417, ELECTRONIC MECHANIC (FLT WIM), WG-13,
 F3415100, AIRCRAFT ELECTRONIC, WG-11, F453810, EXPLOSIVE ORDINANCE
 TECHNICIAN, WG-12, F4579.  IN THE ROSLYN UNIT, POWERED SUPPORT SYSTEMS
 MECHANIC, WG-12, F4249, AUTO MECHANIC, WG-12, F4735.  IN THE SCHENECTADY
 UNIT, INSTRUMENT MECHANIC, WG-12, F4492, FABRIC WORKER, WG-11, F9214,
 PNEUDRALIC SYSTEMS MECHANIC, WG-11, F4535100, AIRCRAFT ELECTRONIC,
 WG-11, F4538100, AIRCRAFT PNEUDRALIC SYSTEMS MECHANIC, WG-11, F4541100,
 AIRCRAFT REFUELING VEHICLE OPERATOR, WG-09, F6417, AIRCRAFT PROPELLER
 MECHANIC, WG-11, F4391, ELECTRONIC MECHANIC, WG-12, F4499000.  IN THE
 SUFFOLK UNIT, INSTRUMENT MECHANIC, WG-12, F4492, AIRCRAFT REFUELING
 VEHICLE OPERATOR, WG-09, F6417, FABRIC WORKER, WG-11, F9214, AIRCRAFT
 PROPELLER MECHANIC, WG-11, F4391.
 
    IT IS FURTHER HEREBY ORDERED THAT THE PETITION IN CASE NO. 1-CU-22,
 BE, AND IT HEREBY IS, DISMISSED WITH REGARD TO ALL OTHER POSITIONS
 DISCUSSED HEREIN.
 
    ISSUED, WASHINGTON, D.C., JUNE 1, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ AT THE HEARING, THE ACTIVITY WITHDREW FROM ITS PETITION THE
 QUESTION OF ELIGIBILITY AS TO AN EMPLOYEE CLASSIFIED IN THE SCHENECTADY
 UNIT AS NDI TESTER, WG-11, F5316100 AND ADDED TO THE PETITION, THE
 POSITION OF ELECTRONIC MECHANIC, WG-12, F4499000.  IN THE NIAGARA FALLS
 UNIT, THE ACTIVITY WITHDREW THE QUESTION OF ELIGIBILITY AS TO AN
 EMPLOYEE CLASSIFIED AS NDI TESTER, WG-11, F5316100.  IN THE WHITE PLAINS
 UNIT, THE ACTIVITY WITHDREW THE QUESTION OF ELIGIBILITY AS TO CERTAIN
 EMPLOYEES CLASSIFIED AIRCRAFT ENGINEER MECHANIC, WG-11, F4586100,
 ELECTRICAL MECHANIC, WG-12, F4499000, AND NDI TESTER, WG-11, F5316100.
 IN THE SUFFOLK UNIT, THE ACTIVITY WITHDREW THE QUESTION OF ELIGIBILITY
 AS TO AN EMPLOYEE CLASSIFIED AS NDI TESTER, WG-11, F5316100.  IN THE
 ROSLYN UNIT, THE ACTIVITY WITHDREW THE QUESTION OF ELIGIBILITY AS TO AN
 EMPLOYEE CLASSIFIED AS AUTO MECHANIC, WG-12, F4724.  ACCORDINGLY, THE
 AUTHORITY WILL CONSIDER SUCH WITHDRAWALS AND ADDITION AS AN AMENDMENT TO
 THE PETITION.
 
    FURTHER, THE AUTHORITY WILL NOT DETERMINE THE UNIT ELIGIBILITY OF
 POSITIONS WHICH ARE NOT SUFFICIENTLY IDENTIFIED BY THE PETITIONER.
 UNDER THE CIRCUMSTANCES OF THIS CASE, DUE TO THE ABSENCE OF TESTIMONY AT
 THE HEARING, AND NO OTHER SUFFICIENT EVIDENCE, THE AUTHORITY SHALL NOT
 PASS UPON THE POSITIONS IDENTIFIED IN THE NIAGARA FALLS UNIT AS FABRIC
 WORKER, WG-11, F9214, AND IN THE SYRACUSE UNIT AS ELECTRONIC MECHANIC,
 RADAR, WG-14, F3075.
 
    /2/ 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(.)
 
    /3/ IN PERTINENT PART, SECTION 7103(A)(10) OF THE STATUTE DEFINES
 "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
 
    REQUIRE THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT(.)
 
    /4/ IN ADDITION TO THE POSITION OF ELECTRONIC MECHANIC (TELEPHONE),
 WG-13, F3129, IN THE ROSLYN UNIT WHICH IS SEPARATELY DISCUSSED INFRA,
 THE SMALL SHOP CHIEF POSITIONS IN ISSUE, 28 IN NUMBER, ARE AS FOLLOWS:
 
    IN THE SYRACUSE UNIT, ELECTRONIC MECHANIC (RADIO), WG-14, F3071, AUTO
 MECHANIC, WG-12,
 
    F4724, AIRCRAFT REFUELING VEHICLE OPERATOR, WG-09, F6417, FABRIC
 WORKER, WG-11, F9214,
 
    AIRCRAFT ELECTRONIC WG-11, F4538100, AIRCRAFT PNEUDRALIC SYSTEMS
 MECHANIC, WG-11, F4541100,
 
    ELECTRONIC MECHANIC (POWER) WG-14, F3079, AIRCRAFT ORDINANCE SYSTEMS
 MECHANIC, WG-11,
 
    F4544100, ELECTRONIC MECHANIC, WG-12, F4567, NDI TESTER, WG-11,
 F5316100.  IN THE NIAGARA
 
    FALLS UNIT, AIRCRAFT REFUELING VEHICLE OPERATOR, WG-09, F6417,
 ELECTRONIC MECHANIC (FLT WIM),
 
    WG-13, F3415100, AIRCRAFT ELECTRONIC, WG-11, F4538100, EXPLOSIVE
 ORDINANCE TECHNICIAN, WG-12,
 
    F4579.  IN THE ROSLYN UNIT, POWERED SUPPORT SYSTEMS MECHANIC, WG-12,
 F4249, AUTO MECHANIC,
 
    WG-12, F4735.  IN THE SCHENECTADY UNIT, INSTRUMENT MECHANIC, WG-12,
 F4492, FABRIC WORKER,
 
    WG-11, F9214, PNEUDRALIC SYSTEMS MECHANIC, WG-11, F4535100, AIRCRAFT
 ELECTRONIC, WG-11,
 
    F4538100, AIRCRAFT REFUELING VEHICLE OPERATOR, WG-09, F6417, AIRCRAFT
 PROPELLER MECHANIC,
 
    WG-11, F4391, ELECTRONIC MECHANIC, WG-12, F4499000.  IN THE SUFFOLK
 UNIT, INSTRUMENT MECHANIC,
 
    WG-12, F4492, AIRCRAFT REFUELING VEHICLE OPERATOR, WG-09, F6417,
 FABRIC WORKER, WG-11, F9214,
 
    AIRCRAFT PROPELLER MECHANIC, WG-11, F4391.
 
    /5/ SECTION 7103(A)(2) PROVIDES, IN PERTINENT PART:
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   *          *          *          *
 
 
    (2) 'EMPLOYEE' MEANS AN INDIVIDUAL--
 
    (A) EMPLOYED IN AN AGENCY;  . . . BUT DOES NOT INCLUDE--
 
   *          *          *          *
 
 
    (II) A MEMBER OF THE UNIFORMED SERVICES(.)
 
    /6/ SEE, NORTH CAROLINA AIR NATIONAL GUARD, CHARLOTTE, NORTH
 CAROLINA, 4 FLRA NO. 44(1980), WHICH AROSE UNDER THE PROVISIONS OF THE
 EXECUTIVE ORDER 11491, AS AMENDED, BUT WHICH DISCUSSED THE APPLICATION
 OF THE PROVISIONS OF THE STATUTE TO THE QUESTION OF SUPERVISORY STATUS
 OF THOSE WHO EXERCISE SUPERVISORY AUTHORITY OVER MEMBERS OF THE
 UNIFORMED SERVICES.  SEE ALSO, THE ADJUTANT GENERAL, DELAWARE NATIONAL
 GUARD 9 FLRA NO. 1(1982).