13:0247(42)CU - Division of Military and Naval Affairs, Public Security Building, State Campus, Albany, NY 12226, NG Bureau and ACT, Inc. New York State Council; Division of Military and Naval Affairs, Public Security Building, State Campus, Albany, NY 12226, NG Bureau and ACT, Inc. New York State Council -- 1983 FLRAdec RP



[ v13 p247 ]
13:0247(42)CU
The decision of the Authority follows:


 13 FLRA No. 42
 
 DIVISION OF MILITARY AND NAVAL AFFAIRS
 PUBLIC SECURITY BUILDING
 STATE CAMPUS, ALBANY, N.Y. 12226
 NATIONAL GUARD BUREAU
 Activity/Petitioner
 
 and
                                             Case No. 1-CU-44
 
 ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
 NEW YORK STATE COUNCIL
 Labor Organization
 

 DIVISION OF MILITARY AND NAVAL AFFAIRS
 PUBLIC SECURITY BUILDING
 STATE CAMPUS, ALBANY, N.Y. 12226
 NATIONAL GUARD BUREAU
 Activity/Petitioner
 
 and
                                             Case No. 1-CU-54
 
 ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
 NEW YORK STATE COUNCIL
 Labor Organization /1/
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    Upon petitions duly filed with the Federal Labor Relations Authority
 under section 7111(b)(2) of the Federal Service Labor-Management
 Relations Statute (the Statute), a consolidated 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 Association of Civilian
 Technicians, Inc., New York State Council (ACT) was certified on May 26,
 1970 as the exclusive representative for a unit of all Army, Air, Air
 Defense and National Guard Technicians and employees in the United
 States Property and Fiscal Office located in the State of New York.
 
    Essentially, the petitions seek to clarify the bargaining unit status
 of certain employees in three job classifications based on the
 Activity/Petitioner's contentions that they are supervisors, management
 officials or both.  /2/ SUPERVISORS /3/
 
    The Activity/Petitioner contends that Robert J. Lazarus, Military
 Personnel Technician, GS-0204-07;  Benjamin Wright, Senior Health
 Technician, GS-0699-09;  Gilford Richardson, Senior Health Technician,
 GS-0699-09;  Erwin Gerding, Senior Health Technician, GS-0699-09;
 Reginald A. Sparks, Senior Health Technician, GS-0699-09;  Phillip J.
 Banashefsky, Military Personnel Technician, GS-0204-07;  Kenneth J.
 Clouthier, Security Officer, GS-0080-09;  Joseph T. Caldara, Security
 Officer, GS-0080-09;  and Richard N. Mueller, Security Officer,
 GS-0080-09 are supervisors.  Of these, the record establishes that
 Lazarus and Sparks assign and direct work and have effectively
 recommended hiring of and promotions for subordinates;  that Wright
 assigns and directs work for subordinates;  that Richardson assigns and
 directs work, and has disciplined and effectively recommended the hiring
 of and promotions for subordinates;  and that Gerding assigns and
 directs work and has hired subordinates.  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 employees 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 Banashefsky, Clouthier, Caldara and
 Mueller do not fall within the meaning of section 7103(a)(10) in that
 they do not supervise "employees" as defined under the Statute.  Section
 7103(a)(2) defines a "employee" for the purposes of the Statute as an
 individual "employed in an agency" and specifically excludes from that
 definition "a member of the uniformed services." Accordingly, as
 Banashefsky supervises only active duty military personnel he is not a
 supervisor within the meaning of the Statute.  /4/ Further, the
 Authority finds that those individuals supervised by Clouthier, Caldara
 and Mueller are not "employees employed by an agency" within the meaning
 of section 7103(a)(2) of the Statute in that they are employed by the
 State of New York who pays their salaries, fringe benefits and under
 whose laws they are protected.  /5/ Therefore, the Authority finds that
 the above individuals are not supervisors as defined in the Statute and
 shall order that they remain in the unit.  MANAGEMENT OFFICIALS /6/
 
    The Activity/Petitioner contends that Clouthier, Caldara and Mueller
 are management officials and should be excluded from the unit in that
 they are responsible for the preparation of security plans and security
 requirements at their respective bases.  In the lead case of Department
 of the Navy, Automatic Data Processing Selection Office, 7 FLRA No. 24
 (1981), the Authority interpreted the statutory definition of
 "management official" to include 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.  Applying these criteria to the instant case, the
 Authority finds that the above incumbents are not management officials
 and should be included in the unit.  The record establishes that these
 individuals are highly trained professionals whose actions assist in
 implementing as opposed to shaping the Activity's policy.  While these
 individuals, under the direction of the respective base commanders,
 implement, supplement and, on occasion, request modifications of
 security requirements for their particular bases, they do so within well
 defined guidelines established by Air Force security policy set forth in
 Air National Guard Regulation 125-37.  Thus, the record is clear that
 these incumbents are not management officials in that they do not
 exercise any duties or 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.  Accordingly,
 the Authority finds that these incumbents should be included in the
 bargaining unit.
 
                                   ORDER
 
    IT IS ORDERED that the unit sought to be clarified herein be, and it
 hereby is clarified by excluding from said unit Robert J. Lazarus,
 Military Personnel Technician, GS-0204-07;  Benjamin Wright, Senior
 Health Technician, GS-0699-09;  Gilford Richardson, Senior Health
 Technician, GS-0699-09;  Erwin Gerding, Senior Health Technician,
 GS-0699-09;  and Reginald A. Sparks, Senior Health Technician,
 GS-0699-09 and by including in said unit Phillip J. Banashefsky,
 Military Personnel Technician, GS-0204-07;  Kenneth J. Clouthier,
 Security Officer, GS-0080-09;  Joseph T. Caldara, Security Officer,
 GS-0080-09;  and Richard N. Mueller, Security Officer, GS-0080-09.
 Issued, Washington, D.C., September 30, 1983
                                       Barbara J. Mahone, Chairman