10:0125(26)RO - Army Engineer Topographic Laboratories, Fort Belvoir, Virginia and AFGE Local 1052 -- 1982 FLRAdec RP

 10 FLRA No. 26
 
 U.S. ARMY ENGINEER
 TOPOGRAPHIC LABORATORIES,
 FORT BELVOIR, VIRGINIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1052, AFL-CIO
 Labor Organization/Petitioner
 
                                            Case No. 3-RO-76
 
                    DECISION AND DIRECTION OF ELECTION
 
    UPON A PETITION DULY FILED UNDER SECTION 7111(B)(1) 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 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1052, AFL-CIO
 (AFGE) SEEKS TO REPRESENT A UNIT OF CURRENTLY UNREPRESENTED PROFESSIONAL
 EMPLOYEES AT THE U.S.  ARMY ENGINEER TOPOGRAPHIC LABORATORIES, FORT
 BELVOIR, VIRGINIA (THE ACTIVITY).  THE PARTIES STIPULATED AND THE
 AUTHORITY FINDS IN ACCORDANCE WITH THE CRITERIA SET FORTH IN SECTION
 7112 OF THE STATUTE THAT THE FOLLOWING CONSTITUTES AN APPROPRIATE UNIT:
 
    INCLUDED:  ALL NONSUPERVISORY PROFESSIONAL EMPLOYEES OF THE U.S. ARMY
 ENGINEER TOPOGRAPHIC
 
    LABORATORIES, FORT BELVOIR, VIRGINIA.
 
    EXCLUDED:  ALL NON-PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
 SUPERVISORS, AND EMPLOYEES
 
    DESCRIBED IN SECTION 7112(B)(2), (3), (4), (6) AND (7) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT
 
    RELATIONS STATUTE.
 
    THE ACTIVITY SEEKS TO HAVE 51 POSITIONS SPECIFICALLY EXCLUDED FROM
 THIS UNIT, CONTENDING THAT THE INCUMBENTS ARE MANAGEMENT OFFICIALS AS
 DEFINED IN SECTION 7103(A)(11) OF THE STATUTE.  /1/ THE PETITIONER TAKES
 THE POSITION THAT THE EMPLOYEES IN QUESTION ARE NOT MANAGEMENT OFFICIALS
 AND, THEREFORE, SHOULD NOT BE EXCLUDED FROM THE UNIT.
 
    THE ACTIVITY IS A SEPARATE SUBORDINATE COMMAND WITHIN THE U.S. ARMY
 CORPS OF ENGINEERS.  ITS MISSION INVOLVES PERFORMING RESEARCH AND
 DEVELOPMENT IN THE TOPOGRAPHIC SCIENCES INCLUDING MAPPING, POINT
 POSITIONING, AND MILITARY GEOGRAPHIC INFORMATION;  PROVIDING SCIENTIFIC
 AND TECHNICAL ADVISORY SERVICES TO ASSESS THE EFFECTS OF THE ENVIRONMENT
 ON THE DESIGN, TESTING, AND OPERATION OF MATERIEL;  PRODUCING TERRAIN
 ANALYSES IN SUPPORT OF ARMY STUDIES AND OPERATIONS;  AND UPDATING
 MATERIEL TECHNICAL MANUALS.
 
    FUNDING FOR THE ACTIVITY COMES FROM VARIOUS SOURCES SUCH AS THE CORPS
 OF ENGINEERS OR FROM REIMBURSEMENT FOR WORK PERFORMED ON BEHALF OF
 CUSTOMERS INCLUDING THE DEPARTMENT OF THE ARMY, THE DEPARTMENT OF
 DEFENSE AND OTHER FEDERAL AGENCIES.  THE ACTIVITY ACCOMPLISHES ITS
 OBJECTIVES EITHER BY HAVING THE WORK PERFORMED WITHIN ONE OF ITS OWN
 LABORATORIES OR BY CONTRACTING OUT THE WORK TO A CIVILIAN CONTRACTOR.
 
    OF THE 314 EMPLOYEES AT THE ACTIVITY, APPROXIMATELY 64 PERCENT ARE
 SCIENTISTS AND ENGINEERS.  THE 51 POSITIONS IN QUESTION ARE FILLED BY
 SCIENTISTS, ENGINEERS, OR MATHEMATICIANS, SEVEN OF WHOM ARE GRADED AT
 GS-14 AND 44 OF WHOM ARE GS-13S.  /2/ OF THE 51 POSITIONS AT ISSUE, 47
 OF THE INCUMBENTS ARE ALLEGED TO BE MANAGEMENT OFFICIALS BECAUSE THEY
 PROPOSE MAJOR PROJECTS KNOWN AS "WORK UNITS" AND/OR ACT AS CONTRACTING
 OFFICERS' REPRESENTATIVES.  /3/ GENERALLY, A WORK UNIT IS MANAGED BY THE
 EMPLOYEE WHO PROPOSES IT WHO IS SOMETIMES REFERRED TO AS THE PRINCIPAL
 INVESTIGATOR OR THE PROJECT ENGINEER.
 
    AS NOTED ABOVE, SECTION 7103(A)(11) OF THE STATUTE DEFINES THE TERM
 "MANAGEMENT OFFICIAL." IN 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 IS
 WHETHER THE INCUMBENTS OF THE POSITIONS AT ISSUE HEREIN ARE MANAGEMENT
 OFFICIALS WITHIN THE FOREGOING DEFINITION, AS INTERPRETED BY THE
 AUTHORITY.
 
    THE AUTHORITY FINDS THAT THE INCUMBENTS WHO ARE ALLEGED BY THE
 ACTIVITY TO BE MANAGEMENT OFFICIALS BECAUSE THEY PROPOSE WORK UNITS AND
 ACT AS CONTRACTING OFFICERS' REPRESENTATIVES 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.  RATHER, THE INDIVIDUALS IN THESE POSITIONS ARE EXPERT
 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
 DEVELOPING, RECOMMENDING, RENDERING EXPERT ADVICE AND PERFORMING
 RESEARCH AND DEVELOPMENT TASKS, BUT DOES NOT EXTEND BEYOND THAT TO THE
 POINT OF CREATING, SETTLING UPON OR BRINGING ABOUT THE ACTIVITY'S POLICY
 DETERMINATIONS IN ANY OF THESE AREAS.  SEE DEPARTMENT OF THE NAVY,
 AUTOMATIC DATA PROCESSING SELECTION OFFICE, 7 FLRA NO. 24(1981).
 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 SHALL BE
 INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.  SEE DEPARTMENT OF THE
 NAVY, CIVIL ENGINEERING LABORATORY, PORT HUENEME, CALIFORNIA, 8 FLRA NO.
 122(1982).
 
    THE REMAINING POSITIONS AT ISSUE ARE ENCUMBERED BY THE FOUR PHYSICAL
 SCIENTISTS IN THE ACTIVITY'S PLANS, REQUIREMENTS AND OPERATIONS OFFICE.
 THE ACTIVITY ARGUES THAT THREE OF THE FOUR ARE MANAGEMENT OFFICIALS
 BECAUSE THEY ANALYZE REQUIREMENTS ESTABLISHED BY HIGHER HEADQUARTERS AND
 OTHER AGENCIES AND, CONSISTENT WITH EITHER THE ACTIVITY'S SHORT-- OR
 LONG-- RANGE PLAN, EVALUATE THE WORK UNITS PROPOSED BY THE SCIENTISTS,
 ENGINEERS AND MATHEMATICIANS PREVIOUSLY DISCUSSED.  BASED ON THESE
 ANALYSES AND EVALUATIONS, THEY USE THEIR TECHNICAL EXPERTISE IN MAKING
 RECOMMENDATIONS WHICH ARE SUBJECT TO HIGHER LEVEL APPROVAL.  IN
 ADDITION, THE ACTIVITY ARGUES THAT THE THREE INCUMBENTS ARE MANAGEMENT
 OFFICIALS BECAUSE THEY MEET WITH ACTIVITY MANAGEMENT TO SEEK APPROVAL OF
 THEIR RECOMMENDATIONS, AND THEY ATTEND MEETINGS INVOLVING
 REPRESENTATIVES OF OTHER AGENCIES WHICH USE THE SERVICES OF THE
 ACTIVITY.  IN THIS REGARD, THE EVIDENCE INDICATES THAT THEIR DUTIES ARE
 LIMITED TO USING THEIR TECHNICAL EXPERTISE TO CLARIFY EXISTING
 GUIDELINES.  BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT THESE
 THREE PHYSICAL SCIENTISTS ARE ALSO NOT MANAGEMENT OFFICIALS INASMUCH AS
 THEY ASSIST IN IMPLEMENTING, AS OPPOSED TO SHAPING, THE ACTIVITY'S
 POLICIES.  SEE DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING
 SELECTION OFFICE, 7 FLRA NO. 24(1981).  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 THREE POSITIONS SHALL BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED
 UNIT.
 
    SIMILARLY, THE AUTHORITY FINDS THAT THE FOURTH PHYSICAL SCIENTIST IN
 THE PLANS, REQUIREMENTS AND OPERATIONS OFFICE, THE INCUMBENT OF JOB
 NUMBER 5051, IS NOT A MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION
 7103(A)(11) OF THE STATUTE.  THIS INDIVIDUAL'S JOB INVOLVES REVIEWING
 INTELLIGENCE DOCUMENTS TO DETERMINE WHETHER THEY ARE PERTINENT TO THE
 ACTIVITY'S PROGRAMS.  THE ACTIVITY CONTENDS THE INCUMBENT IS A
 MANAGEMENT OFFICIAL BECAUSE OF HIS RECOMMENDATIONS REGARDING WHETHER
 WORK UNITS SHOULD BE INITIATED OR REVISED.  AS WITH THE OTHER THREE
 PHYSICAL SCIENTISTS, THE RECORD SHOWS THAT THE INCUMBENT'S
 RECOMMENDATIONS ARE BASED ON HIS TECHNICAL EXPERTISE AND SUBJECT TO
 HIGHER LEVEL REVIEW AND APPROVAL CONSISTENT WITH THE ACTIVITY'S SHORT--
 OR LONG-RANGE PLANS.  ACCORDINGLY, THE INCUMBENT IN THIS POSITION ALSO
 SHALL BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
 
                           DIRECTION OF ELECTION
 
    AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
 IN THE UNIT DESCRIBED ABOVE AS SOON AS FEASIBLE.  THE APPROPRIATE
 REGIONAL DIRECTOR SHALL SUPERVISE OR CONDUCT THE ELECTION, AS
 APPROPRIATE, SUBJECT TO THE AUTHORITY'S RULES AND REGULATIONS.  ELIGIBLE
 TO VOTE ARE THOSE IN THE VOTING GROUP WHO WERE EMPLOYED DURING THE
 PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
 WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
 VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO
 APPEAR IN PERSON AT THE POLLS.  INELIGIBLE TO VOTE ARE EMPLOYEES WHO
 HAVE QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL
 PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION
 DATE.  THOSE ELIGIBLE SHALL VOTE ON WHETHER OR NOT THEY DESIRE TO BE
 REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1052, AFL-CIO.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 (APPENDIX OMITTED)
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE 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 THE APPENDIX.
 
    /3/ TWO OF THESE 47, INCUMBENT MATHEMATICIANS JOB NUMBER D-4181,
 GS-1520-13, AND JOB NUMBER D-3085, GS-1520-13, ARE ALLEGED TO BE
 MANAGEMENT OFFICIALS BECAUSE THEY WILL PERFORM THESE DUTIES AT SOME TIME
 IN THE FUTURE.  THE AUTHORITY MUST RELY UPON EVIDENCE AS TO DUTIES
 ACTUALLY ASSIGNED AT THE TIME OF THE HEARING RATHER THAN ON TESTIMONY
 REGARDING DUTIES WHICH MAY BE PERFORMED AT SOME FUTURE TIME.  SEE
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-35, 8 FLRA NO.
 114(1982) AT N. 3.  THEREFORE, THESE TWO POSITIONS WILL BE INCLUDED IN
 THE UNIT IN VIEW OF THE ABSENCE OF ANY INDICATION THAT THEIR CURRENT
 DUTIES MAKE THEM MANAGEMENT OFFICIALS.  IN ADDITION, IT APPEARS THAT THE
 INCUMBENT OF ONE POSITION IS DETAILED ELSEWHERE.  THAT EMPLOYEE, A
 GEOGRAPHER, JOB NUMBER 1792.A, GS-0150-14, IS ON ASSIGNMENT OUTSIDE OF
 THE PROPOSED UNIT.  AS THE RECORD DOES NOT CONTAIN SUFFICIENT
 INFORMATION ABOUT THE DUTIES OF THIS EMPLOYEE, THE AUTHORITY CANNOT MAKE
 A DETERMINATION AS TO THE STATUS OF THIS POSITION.