[ v11 p66 ]
The decision of the Authority follows:
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).