11:0066(22)CU - Adjutant General of Michigan, Air NG, Battle Creek, MI and Michigan State Council, ACT -- 1983 FLRAdec RP

 11 FLRA No. 22
 
 ADJUTANT GENERAL OF MICHIGAN,
 AIR NATIONAL GUARD,
 BATTLE CREEK, MICHIGAN
 Activity/Petitioner
 
 and
 
 MICHIGAN STATE COUNCIL,
 ASSOCIATION OF CIVILIAN TECHNICIANS /1/
 Labor Organization
 
                                            Case No. 5-CU-33
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    Upon a petition duly filed with the 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 careful consideration of the entire record, including the
 parties' contentions, the Authority finds:  The Michigan State Council,
 Association of Civilian Technicians, was recognized on May 28, 1969 as
 the exclusive bargaining representative for a unit of all technician
 personnel employed by the Michigan Air National Guard.  Essentially, the
 petition seeks to clarify the bargaining unit status of six employees
 based on the Activity/Petitioner's contention that they are supervisors.
  The Activity/Petitioner contends that Mark Harris, Ground Power Support
 Systems Mechanic, WG-5378-11;  David R. Webb, Electronics Mechanic,
 WG-2614-12;  William Humphreys, Instrument Mechanic, WG-3359-12;  Clyde
 W. Sells, Fabric Worker, WG-3105-11;  Charles G. Wait, Aircraft
 Refueling Vehicle Operator, WG-5701-09 /2/ and Raymond Cross, Production
 Controller, GS-1152-09, are supervisors /3/ and should be excluded from
 the bargaining unit.  Of these, the record establishes that Harris
 assigns and directs work and has effectively recommended hiring of a
 subordinate, and Webb assigns and directs work.  Further, the Authority
 finds that the above duties are not merely routine or clerical in
 nature, but require the consistent exercise of independent judgment.
 Accordingly, these incumbents are supervisors within the meaning of
 section 7103(a)(10) of the Statute, and shall be excluded from the unit.
 
    The Authority further finds that Humphreys is not a supervisor within
 the meaning of section 7103(a)(10) of the Statute since he does not
 exercise any of the statutory indicia of supervisory authority.  Thus,
 he shall remain in the unit.
 
    Further, the record indicates that Sells, Wait, and Cross, supervise
 only active duty military personnel.  As noted, section 7103(a)(10) of
 the Statute defines a "supervisor" as an individual having certain
 authority over "employees." Section 7103(a)(2) defines an "employee" for
 the purposes of the Statute as an individual "employed in an agency,"
 but specifically excludes from that definition "a member of the
 uniformed services." The Authority finds that the individuals supervised
 by the incumbents are members of the uniformed services and thus are not
 "employees" within the meaning of the Statute.  /4/ Therefore, the
 Authority finds that the above incumbents are not supervisors as defined
 in the Statute and shall order that they remain in the unit.
 
                                   ORDER
 
    IT IS ORDERED that the unit sought to be clarified herein is hereby
 clarified by excluding from said unit Mark Harris, Ground Power Support
 Systems Mechanic, WG-5378-11, and David R. Webb, Electronics Mechanic,
 WG-2614-12.
 
    IT IS FURTHER ORDERED that, with regard to all other job
 classifications sought to be excluded herein, the petition be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., January 20, 1983
 
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
              Concurring Opinion, Leon B. Applewhaite, Member
 
    I concur with my fellow members regarding the interpretation of
 statutory language found in section 7103 of the Statute, and the result
 they reach.  However, the unique nature of the National Guard
 technicians raises a practical concern as to this application of section
 7103.  In order to be employed as a technician, one must be a member of
 the National Guard.  In other words, eligibility for the civilian
 position is dependent upon military status.  Consequently, the
 technicians are quasi-military personnel and yet not excluded from
 bargaining rights by section 7103(a)(2)(B)(ii).  Further, the
 technicians are precluded from being classified as supervisors under
 section 7103(a)(10) since the military personnel whom they supervise do
 not fall within the definition of "employee" set forth in section 7103.
 Thus, these personnel who are in actuality supervisors, must be placed
 in the bargaining unit.
 
    Strict application of the language of the Statute produces the
 foregoing results.  However, any relief for the problems which arise
 from this application is not within the jurisdictional power of the
 Authority.  Rather, it is a legislative issue which must be resolved by
 congressional action.
                                       Leon B. Applewhaite, Member
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The name of the labor organization appears as amended at the
 hearing.
 
 
    /2/ The above incumbents are all characterized as small shop chiefs.
 
 
    /3/ 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 . . . .
 
 
    /4/ National Guard Bureau, State of New York, Division of Military
 and Naval Affairs, Albany, New York, 9 FLRA No. 2 (1982) and The
 Adjutant General, Delaware National Guard, 9 FLRA No. 1 (1982).