09:0518(60)CU - HHS, Region X, Seattle, WA and NTEU and NTEU Chapter 215 -- 1982 FLRAdec RP
[ v09 p518 ]
09:0518(60)CU
The decision of the Authority follows:
9 FLRA No. 60
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
REGION X, SEATTLE, WASHINGTON
Activity/Petitioner /1/
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 215
Labor Organization
Case No. 9-CU-19
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, THE AUTHORITY FINDS:
THE ACTIVITY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION X,
SEATTLE, WASHINGTON, FILED A PETITION FOR CLARIFICATION OF UNIT SEEKING
TO EXCLUDE CERTAIN POSITIONS /2/ FROM THE BARGAINING UNIT OF ALL
NONPROFESSIONAL EMPLOYEES EXCLUSIVELY REPRESENTED BY NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 215 (NTEU), ON THE BASIS THAT THE INCUMBENTS OF
THE POSITIONS ARE MANAGEMENT OFFICIALS, SUPERVISORS, CONFIDENTIAL
EMPLOYEES, OR ENGAGED IN PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY. CONVERSELY, NTEU CONTENDS THAT THE INCUMBENTS OF THE
POSITIONS ARE ALL EMPLOYEES WHO SHOULD BE INCLUDED IN THE UNIT OF
EXCLUSIVE RECOGNITION.
THE ALLEGED MANAGEMENT OFFICIALS
SECTION 7103(A)(11) OF THE STATUTE PROVIDES THAT A "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. IN
THE LEAD CASE OF DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING
SELECTION OFFICE, 7 FLRA NO. 24 (1981), THE AUTHORITY INTERPRETED THAT
DEFINITION OF MANAGEMENT OFFICIAL 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. JOB POSITIONS
99735: SALLY ROSS AND BARBARA COOK, GS-105-12
THE ACTIVITY ASSERTS THAT THE ABOVE INCUMBENTS ARE NOT ONLY
MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE STATUTE, BUT ARE ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, /3/
AND SHOULD THEREFORE BE EXCLUDED FROM THE BARGAINING UNIT.
THE INCUMBENTS ARE EMPLOYED AS SOCIAL INSURANCE TRAINING SPECIALISTS
IN THE ACTIVITY'S PROGRAM, TRAINING, MANAGEMENT AND STAFF DEVELOPMENT
BRANCH. IN THE EVENT THAT SPECIAL PROBLEMS ARISE, THEY ANALYZE TRAINING
NEEDS AND MAKE RECOMMENDATIONS FOR THE USE OF TRAINING COURSES WHICH
HAVE BEEN DEVELOPED AT THE NATIONAL LEVEL TO RESOLVE SUCH PROBLEMS. IN
THIS REGARD, THEY MAY SUGGEST CHANGES WITH RESPECT TO THE ORDER OF
TRAINING, BUT THEY DO NOT MAKE ANY RECOMMENDATIONS CONCERNING THE
SUBSTANCE OF NATIONAL TRAINING PROGRAMS. JOB POSITION Q79169: GEORGE
CLIFFORD, MARILYN DEVANEY, ROSE INOUYE, GLEN SANDAHL, GS-101-13
THE ABOVE INCUMBENTS ARE ASSIGNED TO THE FAMILY ASSISTANCE PROGRAM AS
STATE PROGRAM SPECIALISTS. THEY HAVE THE RESPONSIBILITY FOR
ADMINISTERING THE AID TO DEPENDENT CHILDREN'S PROGRAM (ADC), CONSISTENT
WITH ESTABLISHED AGENCY GUIDELINES. UNDER SUCH PROGRAM, RECIPIENTS
RECEIVE FINANCIAL ASSISTANCE FROM THEIR RESPECTIVE STATES. THE
INCUMBENTS USE FINANCIAL AND OTHER TYPES OF INFORMATION TO ANALYZE AND
MAKE RECOMMENDATIONS CONCERNING THE WORKING OF THE STATE ADC PROGRAMS.
IN MOST BASIC TERMS, THEY SERVE AS THE LIAISON BETWEEN THE STATES AND
THE FEDERAL GOVERNMENT. JOB POSITION X568: DONALD V. LEATHERMAN,
GS-101-13
THE INCUMBENT IS THE PUBLIC HEALTH ADVISOR IN THE DIVISION OF HEALTH
SERVICES DELIVERY. WHILE CONCEDING THAT "(T)HE RECORD IS VERY SPARSE
WITH RESPECT TO THE MANNER IN WHICH THE INCUMBENT . . . INFLUENCES
POLICY," THE ACTIVITY ALLEGES THAT HE IS A MANAGEMENT OFFICIAL BECAUSE
HIS POSITION CANNOT AVOID IMPACTING UPON AGENCY POLICY. THE ACTIVITY
FURTHER ALLEGES THAT HE IS A SUPERVISOR WITHIN THE MEANING OF THE
STATUTE. /4/
THE INCUMBENT WORKS IN THE PROGRAM WHICH PROVIDES GRANTS TO STATE
ENTITIES. IN THIS CONNECTION, HE IS RESPONSIBLE FOR COMPILING A STAFF
SUMMARY OF SUCH GRANTS AND ATTENDS EVALUATION MEETINGS TO PROVIDE STAFF
ASSISTANCE SHOULD ANY QUESTIONS ARISE, BUT HE DOES NOT HAVE A VOTE ON
THE GRANT REVIEW COMMITTEE. JOB POSITION 78-0002: KAY KIDWELL, KATHY
ADMIRE, GS-345-13
THE INCUMBENTS ARE PROGRAM ANALYSTS IN THE SERVICE DELIVERY
ASSESSMENT BRANCH. THEY CONDUCT STUDIES ON VARIOUS SHORT TERM PROGRAMS
WITHIN THE AGENCY, THEREBY PROVIDING THE SECRETARY AND UNDER SECRETARY
OF THE AGENCY WITH CURRENT INFORMATION CONCERNING THEM.
THE AUTHORITY FINDS THAT NONE OF THE FOREGOING INCUMBENTS ARE
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, SUPRA. RATHER, THEY ARE MORE AKIN TO EXPERTS OR PROFESSIONALS
RENDERING RESOURCE INFORMATION WITH RESPECT TO THE ACTIVITY'S POLICIES.
IN THIS REGARD, THE AUTHORITY NOTES THAT THE INCUMBENTS DO NOT COME TO
INDEPENDENT DECISIONS AS TO WHAT SUCH POLICIES WILL BE, BUT INSTEAD MAKE
REPORTS AND RECOMMENDATIONS TO THEIR SUPERVISORS CONCERNING THE STATUS
OF EXISTING PROGRAMS AND POLICIES. IN SUM, NONE OF THE INCUMBENTS
CREATES, SETTLES UPON OR BRINGS ABOUT THE ACTIVITY'S POLICY
DETERMINATIONS WITH REGARD TO THE VARIOUS PROGRAMS ADMINISTERED BY THE
ACTIVITY. THUS, BASED UPON ALL OF THE FOREGOING, THE AUTHORITY
CONCLUDES THAT THE NINE INDIVIDUALS IN QUESTION ARE NOT MANAGEMENT
OFFICIALS WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE, AND
THEREFORE SHOULD BE INCLUDED IN THE UNIT.
THE ALLEGED SUPERVISOR /5/
JOB POSITION X568: DONALD V. LEATHERMAN, GS-101-13
IN ADDITION TO ITS CONTENTION THAT THE INCUMBENT IS A MANAGEMENT
OFFICIAL (ADDRESSED PREVIOUSLY HEREIN), THE ACTIVITY CONTENDS THAT THE
INCUMBENT IS A SUPERVISOR WITHIN THE MEANING OF THE STATUTE, /6/ BECAUSE
HE REGULARLY ASSIGNS WORK TO A SECRETARY. HOWEVER, THE RECORD REVEALS
THAT THE INCUMBENT IS ONLY ONE OF SEVERAL FOR WHOM THE SECRETARY
PREPARES DOCUMENTS, AND IS NOT THE SOLE PERSON TO WHOM SHE REPORTS OR
FROM WHOM SHE RECEIVES ASSIGNMENTS. THE OVERALL ASSIGNMENTS OF THE
SECRETARY'S WORK ARE MADE BY THE INCUMBENT'S SUPERVISOR, WHO ALSO
APPROVES THE SECRETARY'S FINAL RATING FOR PURPOSES OF PERFORMANCE
EVALUATION.
ACCORDINGLY, AND AS THERE IS NO RECORD EVIDENCE THAT THE INCUMBENT
EXERCISES ANY OTHER INDICIA OF SUPERVISORY AUTHORITY WITH RESPECT TO THE
SECRETARY, THE AUTHORITY CONCLUDES THAT HE IS NOT A SUPERVISOR WITHIN
THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE, AND THEREFORE SHOULD
BE INCLUDED IN THE UNIT.
THE ALLEGED CONFIDENTIAL EMPLOYEE
JOB POSITION 99841: RITA SPANGLER, GS-318-5
SECTION 7103(A)(13) OF THE STATUTE DEFINES A "CONFIDENTIAL EMPLOYEE"
AS "AN EMPLOYEE WHO ACTS IN A CONFIDENTIAL CAPACITY WITH RESPECT TO AN
INDIVIDUAL WHO FORMULATES OR EFFECTUATES MANAGEMENT POLICIES IN THE
FIELD OF LABOR-MANAGEMENT RELATIONS(.)"
THE ACTIVITY SEEKS TO EXCLUDE RITA SPANGLER AS A CONFIDENTIAL
EMPLOYEE, ON THE GROUND THAT SHE REPORTS TO A SUPERVISOR ACTUALLY
ENGAGED IN FORMULATING AND EFFECTUATING MANAGEMENT'S LABOR RELATIONS
POLICIES. SPANGLER IS SUPERVISED BY THE CHIEF OF THE HUMAN RESOURCES
MANAGEMENT BRANCH, ROSEMARIE NAGUSKI, WHO WAS EXCLUDED FROM THE UNIT
HEREIN AS A SUPERVISOR. NAGUSKI SERVES IN A PROFESSIONAL ADMINISTRATIVE
CAPACITY FOR THE REGIONAL COMMISSIONER AND NON-SUPERVISORS IN THE SOCIAL
SECURITY ADMINISTRATION, AND SPENDS AN EXTENSIVE AMOUNT OF TIME IN LABOR
RELATIONS WORK. IN THIS LATTER REGARD, THE RECORD INDICATES THAT
NAGUSKI WAS A MEMBER OF THE ACTIVITY'S NEGOTIATING COMMITTEE WHICH
DRAFTED CONFIDENTIAL PROPOSALS AND COUNTERPROPOSALS FOR THE MANAGEMENT
NEGOTIATING TEAM DURING COLLECTIVE BARGAINING WITH NTEU AND CURRENTLY IS
INVOLVED IN ADMINISTERING THE AGREEMENT. THE RECORD FURTHER INDICATES
THAT SPANGLER TYPES CONFIDENTIAL MEMOS, IS PRIVY TO CONFIDENTIAL LABOR
RELATIONS MATTERS ON A REGULAR BASIS, IS GIVEN FREE ACCESS TO LOCKED
FILES CONTAINING CONFIDENTIAL LABOR RELATIONS MATERIAL, AND OPERATES
ALMOST EXCLUSIVELY AS THE SECRETARY TO NAGUSKI.
UNDER THESE CIRCUMSTANCES, IT IS CONCLUDED THAT SPANGLER ACTS IN A
CONFIDENTIAL CAPACITY TO AN OFFICIAL INVOLVED IN THE FORMULATION AND
EFFECTUATION OF THE ACTIVITY'S LABOR RELATIONS POLICIES. THEREFORE, SHE
SHALL BE EXCLUDED FROM THE UNIT. U.S. ARMY COMMUNICATIONS SYSTEMS
AGENCY, FORT MONMOUTH, NEW JERSEY, 4 FLRA NO. 83 (1980). EMPLOYEES
ALLEGEDLY ENGAGED IN PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY /7/ JOB POSITIONS X-8483 AND X-8483 A: MARY BUCKINGHAM, MURIEL
STERLING, PAULETTE LONG, OCIE SWANSON, FRAN GUERERRO AND JOAN PARKER,
GS-203-05 AND 4/5
THE INCUMBENTS ARE STAFFING CLERKS (TYPING) IN THE ACTIVITY'S
REGIONAL PERSONNEL OFFICE - STAFFING BRANCH. THEIR PRIMARY FUNCTION IS
CONFINED TO MAKING SURE THAT PERSONNEL ACTIONS ARE PROPERLY PROCESSED
AND RECORDED. THE AUTHORITY FINDS THAT THESE INCUMBENTS' INVOLVEMENT IN
FEDERAL PERSONNEL WORK IS PURELY CLERICAL IN NATURE. ACCORDINGLY, THE
AUTHORITY CONCLUDES THAT THESE INCUMBENTS SHOULD BE INCLUDED IN THE
EXCLUSIVELY RECOGNIZED UNIT. HEADQUARTERS, FORT SAM HOUSTON, FORT SAM
HOUSTON, TEXAS, 5 FLRA NO. 46 (1981). JOB POSITION 99735: SALLY ROSS
AND BARBARA COOK, GS-105-12; AND JOB POSITION 99681: GEORGE ANN
KANDER, GS-235-7/9
AS MENTIONED ABOVE, ROSS AND COOK ARE EMPLOYED AS SOCIAL INSURANCE
TRAINING SPECIALISTS IN THE PROGRAM, TRAINING, MANAGEMENT AND STAFF
DEVELOPMENT BRANCH. KANDER IS AN EMPLOYMENT DEVELOPMENT SPECIALIST IN
THE SAME BRANCH.
ROSS AND COOK DRAFT TRAINING COURSES, REVIEW THE TRAINING COURSES
AVAILABLE FROM OTHER SOURCES, MAKE RECOMMENDATIONS AS TO THE SUITABILITY
OF THOSE COURSES FOR AGENCY EMPLOYEES, AND MONITOR EXISTING COURSES TO
RECORD WHETHER THE EMPLOYEES ASSIGNED TO SUCH TRAINING HAVE IN FACT
COMPLETED THE COURSES. KANDER ASSISTS THE SOCIAL INSURANCE TRAINING
SPECIALISTS, AND IS PRIMARILY RESPONSIBLE FOR MONITORING THE SCHOOL/WORK
PROGRAM. NONE OF THE INCUMBENTS IS INVOLVED IN RATING THE PERFORMANCE
OF EMPLOYEES PARTICIPATING IN THESE TRAINING AND DEVELOPMENT PROGRAMS.
MOREOVER, THEY ARE NOT INVOLVED IN REVIEWING, ANALYZING OR MAKING
RECOMMENDATIONS WITH REGARD TO INDIVIDUAL PERSONNEL ACTIONS.
BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT THE INCUMBENTS IN
THESE POSITIONS ARE NOT ENGAGED IN PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY WITHIN THE MEANING OF SECTION 7112(B)(3) OF THE
STATUTE, IN THAT THEIR WORK IS ROUTINE AND NOT OF SUCH A NATURE THAT IT
WOULD CREATE A CONFLICT OF INTEREST BETWEEN THEIR JOBS AND UNION
REPRESENTATION IF THEY WERE INCLUDED IN THE UNIT. ACCORDINGLY, THE
AUTHORITY CONCLUDES THAT THESE INCUMBENTS SHOULD BE INCLUDED IN THE
EXCLUSIVELY RECOGNIZED UNIT. SEE HEADQUARTERS, FORT SAM HOUSTON, FORT
SAM HOUSTON, TEXAS, 5 FLRA NO. 46 (1981). SEE ALSO OFFICE OF PERSONNEL
MANAGEMENT, 5 FLRA NO. 30 (1981). JOB POSITIONS 99857, 99718: ANN
DOROUGH, ADELINE TALLMAN, GS-343-7/9 AND 11; AND JOB POSITION 99859:
MAZIE KOZUKI, GS-303-5/6
INCUMBENTS DOROUGH AND TALLMAN ARE CLASSIFIED AS MANAGEMENT ANALYSTS,
AND KUZUKI AS A STAFF ASSISTANT, IN THE HUMAN RESOURCES MANAGEMENT
BRANCH. IN GENERAL THEY ARE INVOLVED IN ANSWERING MANAGEMENT'S
QUESTIONS, AND KEEPING THEM UP TO DATE, WITH REGARD TO SUCH THINGS AS
THE FAIR LABOR STANDARDS ACT, MERIT PAY AND INCENTIVE AWARDS, AND WORK
SCHEDULES.
DOROUGH IS INVOLVED IN THE DRAFTING AND ANALYSIS OF RECRUITMENT,
SELECTION AND PLACEMENT, AND STAFFING PROGRAMS, PARTICULARLY WITH REGARD
TO FIELD PERSONNEL. TALLMAN'S MAIN DUTIES INVOLVE THE ANALYSIS OF
LEGISLATIVE AND GOVERNMENT-WIDE STUDIES WITH REGARD TO STAFFING AND
PERSONNEL DEVELOPMENT. IN THIS REGARD, SHE MAKES RECOMMENDATIONS TO
MANAGEMENT AS TO THE EFFECTS SUCH STUDIES WILL HAVE ON AGENCY
MANAGEMENT'S PERSONNEL PLANNING. KOZUKI DEALS MAINLY WITH TESTING AND
INCENTIVE AWARDS PROGRAMS AND RETIREMENT PROCEDURES, REVIEWING THEM FOR
ACCURACY AND CONSISTENCY WITH ESTABLISHED GUIDELINES. NONE OF THE
INCUMBENTS IS INVOLVED IN THE RATING OF EMPLOYEES, OR IN REVIEWING,
ANALYZING OR MAKING RECOMMENDATIONS WITH REGARD TO INDIVIDUAL PERSONNEL
ACTIONS.
BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT DOROUGH AND TALLMAN
ARE, BUT KOZUKI IS NOT, ENGAGED IN PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY WITHIN THE MEANING OF SECTION 7112(B)(3) OF THE
STATUTE. THUS, DOROUGH AND TALLMAN DRAFT AND ANALYZE PERSONNEL PROGRAMS
AFFECTING THE BARGAINING UNIT AND MAKE RECOMMENDATIONS TO MANAGEMENT
CONCERNING SUCH PROGRAMS. THESE PERSONNEL FUNCTIONS ARE MORE THAN
ROUTINE AND CLERICAL IN NATURE. ACCORDINGLY, THE AUTHORITY CONCLUDES
THAT THESE INCUMBENTS SHOULD BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED
UNIT. HOWEVER, KOZUKI'S DUTIES MERELY INVOLVE REVIEW OF TESTING AND
AWARDS PROGRAMS FOR ACCURACY AND CONSISTENCY WITH ESTABLISHED POLICY,
AND THEREFORE ARE ROUTINE AND CLERICAL IN NATURE. ACCORDINGLY, THE
AUTHORITY SHALL INCLUDE HER WITHIN THE BARGAINING UNIT. JOB POSITION
99683: RICHARD HARRIS, JERI BURGESS, GS-343-12
THE TWO INCUMBENTS IN THIS POSITION ARE ALSO CLASSIFIED AS MANAGEMENT
ANALYSTS. IN ADDITION TO PERFORMING DUTIES SIMILAR TO THE OTHER
MANAGEMENT ANALYSTS, DESCRIBED ABOVE, THEY HAVE BEEN ENGAGED IN FURTHER
RESPONSIBILITIES. HARRIS WAS THE PERSON PRIMARILY RESPONSIBLE FOR
SETTING UP THE ACTIVITY'S CRESS PROGRAM, AN INITIAL QUALIFYING TEST FOR
JOB APPLICANTS. HARRIS HAS WORKED WITH SUPERVISORS AND MANAGEMENT
OFFICIALS IN THE RECRUITMENT AND SELECTION PROCESS, IN WHICH HE HELPED
SCREEN APPLICANTS AND MADE EFFECTIVE RECOMMENDATIONS WITH REGARD TO THE
SELECTION OF APPLICANTS. BURGESS SPENDS 60 TO 75 PERCENT OF HER TIME IN
LABOR-MANAGEMENT RELATIONS MATTERS. IN THIS REGARD, SHE ANALYZED THE
MAJOR CONTRACT PROPOSALS SUBMITTED DURING NEGOTIATIONS BY THE UNION THAT
REPRESENTS FIELD EMPLOYEES OF THE ACTIVITY WITH REGARD TO THE IMPACT
THAT SUCH PROPOSALS WOULD HAVE ON THE ACTIVITY'S PERSONNEL PROGRAMS, AND
SHE COMPILED MANAGEMENT'S RESPONSE TO SUCH PROPOSALS. WHILE THE
FOREGOING DUTIES DIRECTLY RELATED TO EMPLOYEES OUTSIDE THE UNIT HERE
REPRESENTED BY NTEU, IT INVOLVED ACTIVITY-WIDE PERSONNEL POLICIES WITH
REGARD TO SUCH MATTERS AS TRANSFER TO AND FROM THE UNIT INVOLVED HEREIN.
THE AUTHORITY FINDS THAT THE INCUMBENTS IN THIS POSITION ARE DIRECTLY
INVOLVED IN PERFORMING PERSONNEL WORK THAT MAY AFFECT EMPLOYEES IN THE
UNIT AND THUS A CONFLICT OF INTEREST BETWEEN THEIR JOBS AND UNION
REPRESENTATION WOULD BE CREATED IF THEY WERE INCLUDED IN THE UNIT.
HENCE, THE AUTHORITY CONCLUDES THAT THE DISPUTED EMPLOYEES ARE ENGAGED
IN PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY WITHIN THE
MEANING OF SECTION 7112(B)(3) OF THE STATUTE, AND THAT THEY MUST BE
EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED, CONSISTING
OF ALL NONPROFESSIONAL EMPLOYEES IN THE DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION X, SEATTLE, WASHINGTON, IN WHICH THE NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 215, WAS ORIGINALLY CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE ON MAY 9, 1979, BE, AND IT HEREBY IS, CLARIFIED BY
INCLUDING IN SAID UNIT THE POSITIONS OF STAFF ASSISTANT, GS-303-5/6,
POSITION 99859; SOCIAL INSURANCE TRAINING SPECIALIST, GS-105-12,
POSITION 99735; EMPLOYEE DEVELOPMENT SPECIALIST, GS-235-7/9, POSITION
99681; STATE PROGRAM SPECIALIST, GS-101-13, POSITION Q79169; PUBLIC
HEALTH ADVISOR, GS-101-13, POSITION X568; PROGRAM ANALYST, GS-345-13,
POSITION 78-0002; STAFFING CLERK (TYPING) GS-203-4/5 AND 5, POSITIONS
X-8483 AND X-8483 A; AND BY EXCLUDING THE POSITIONS OF MANAGEMENT
ANALYST, GS-343-7/9, 11 AND 12, POSITIONS 99857, 99718 AND 99683; AND
SECRETARY (TYPING), GS-318-5, POSITION 99841. ISSUED, WASHINGTON, D.C.,
JULY 21, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ THE NAME OF THE ACTIVITY/PETITIONER APPEARS ABOVE AS AMENDED AT
THE HEARING, WITHOUT OPPOSITION, TO ADD THE DESIGNATION "SEATTLE,
WASHINGTON."
/2/ TWO OF THE POSITIONS IN QUESTION WERE VACANT AT THE TIME OF THE
HEARING; I.E., JOB POSITION 99834, GS-322-4 (CLERK TYPIST) AND JOB
POSITION 75-0001, GS-345-14 (PROGRAM ANALYST). THE AUTHORITY WILL NOT
MAKE ELIGIBILITY DETERMINATIONS FOR VACANT POSITIONS. SEE DEPARTMENT OF
THE TREASURY, BUREAU OF THE MINT, U.S. MINT, DENVER, COLORADO, 6 FLRA
NO. 17 (1981), AND CASES CITED THEREIN.
/3/ THE LATTER CONTENTION IS ADDRESSED INFRA.
/4/ THE LATTER CONTENTION IS ADDRESSED INFRA.
/5/ DURING THE COURSE OF THE HEARING, AND WITH THE AGREEMENT OF THE
ACTIVITY AND THE HEARING OFFICER, THE UNION STIPULATED THAT THE
INCUMBENTS IN JOB POSITION OA 256, SOCIAL INSURANCE SPECIALIST,
GS-105-3, IN THE ASSISTANCE PROGRAM BRANCH, AND JOB POSITION OA 254 S,
SUPERVISORY SOCIAL INSURANCE PROGRAM SPECIALIST, GS-105-13, IN THE
DISABILITY PROGRAM BRANCH, ARE SUPERVISORS WITHIN THE MEANING OF THE
STATUTE AND SHOULD THEREFORE BE EXCLUDED FROM THE BARGAINING UNIT. THE
HEARING OFFICER RULED, IN EFFECT, THAT THE PETITION SHOULD BE CONSIDERED
AMENDED SO THAT THESE POSITIONS ARE NOT BEFORE THE AUTHORITY FOR
CONSIDERATION, AND THE AUTHORITY SPECIFICALLY ADOPTS THAT RULING.
/6/ 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 . . . (.)
/7/ SECTION 7112(B)(3) OF THE STATUTE PROVIDES THAT:
(B) A UNIT SHALL NOT BE DETERMINED TO BE APPROPRIATE UNDER THIS
SECTION . . . IF IT
INCLUDES--
. . . .
(3) AN EMPLOYEE ENGAGED IN PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY(.)