17:0188(29)CU - SBA and National Office, AFGE -- 1985 FLRAdec RP

 17 FLRA No. 29
 
 SMALL BUSINESS ADMINISTRATION
 Activity
 
 and
 
 NATIONAL OFFICE, AMERICAN
 FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Petitioner
 
                                            Case No. 3-CU-30033
 
                    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 National Office,
 American Federation of Government Employees, AFL-CIO (AFGE), was
 certified as the exclusive representative of a nationwide consolidated
 unit of professional and nonprofessional employees of the Small Business
 Administration (SBA).  Essentially, the petition seeks to clarify the
 bargaining unit status of seven employees based on the Activity's
 contention that they are either supervisors or management officials and
 should be excluded from the unit.  /1/ SUPERVISORS
 
    The Activity contends that the following employees are supervisors
 within the meaning of section 7103(a)(10) of the Statute, /2/ and should
 be excluded from the unit:  Raymond D. Marchakitus, Supervisory
 Economics, GM-0110-15;  Alice K. Cullen, Economist, GM-0110-14;  John P.
 Hightower, Computer System Analyst, GM-0334-13;  and Robert E. L. Gregg,
 Computer System Analyst, GM-0334-13.  Of these, the record establishes
 that Cullen, Marchakitus and Gregg assign and direct work;  and that
 Hightower assigns and directs work and has effectively recommended
 subordinates for awards.  The Authority further finds that the above
 duties are not merely routine or clerical in nature, but require the
 consistent exercise of independent judgment.  Accordingly, the employees
 listed above are supervisors under the meaning of section 7103(a)(10) of
 the Statute and should be excluded from the unit.  MANAGEMENT OFFICIALS
 
    The Activity further contends that the following employees are
 management officials within the meaning of section 7103(a)(11) of the
 Statute /3/ and must be excluded from the unit:  Maureen Glebes,
 Economist, GS-0110-14;  Robert F. Clairmont, Assistant Advocate,
 GS-0301-14;  and Gerald T. Lawson, Assistant Advocate, GS-0301-14.  In
 the lead case of Department of the Navy, Automatic Data Processing
 Selection Office, 7 FLRA 172 (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
 employees are highly trained resource persons whose actions assist in
 implementing, as opposed to shaping, the Activity's policies.  Thus, the
 record establishes that Glebes is primarily involved with studying
 economic trends of legislation and regulation to determine the impact on
 small businesses.  She reports these findings to the policy staff and
 makes recommendations as to what these trends are and why they should be
 looking at them.  Her major function is to give people who are in a
 policy making position in both the SBA and other government agencies
 some idea of what the state of small business is and what industries
 will be affected and how they will be affected by action that may be
 taken by government agencies.  Further, the record establishes that
 Clairmont and Lawson are primarily troubleshooters who, within their own
 program responsibilities, look into policies and activities of Federal
 agencies which have the potential or do in fact have an adverse impact
 upon small businesses.  They operate under the guidelines of Public Law
 94-305 which was passed to aid, counsel, assist and protect the small
 business community.  They work closely with other Federal agencies in an
 attempt to influence their policies to aid small businesses or refrain
 from injuring them.  They also recommend SBA hearings to study certain
 problems caused by actions of other government agencies.  While they may
 influence policy of other government agencies in the course of their
 work, they do not influence the policies of their own employing agency.
 /4/ Within their own agency, they only have the authority to recommend
 action which in turn is evaluated through numerous levels of review.  It
 follows that these employees are not management officials in that they
 do not exercise duties and responsibilities which require or authorize
 them to formulate, determine or influence the policies of the Agency
 within the meaning of section 7103(a)(11).  Accordingly, the Authority
 finds that these employees should be included in the bargaining unit.
 
                                   ORDER
 
    IT IS ORDERED that the unit sought to be clarified be, and it hereby
 is, clarified by excluding from said unit Raymond D. Marchakitus,
 Supervisory Economist, GM-0110-15;  Alice K. Cullen, Economist,
 GM-0110-14;  John P. Hightower, Computer System Analyst, GM-0334-13;
 and Robert E. L. Gregg, Computer System Analyst, GM-0334-13;  and by
 including in said unit Maureen Glebes, Economist, GS-0110-14;  Robert F.
 Clairmont, Assistant Advocate, GS-0301-14;  and Gerald T. Lawson,
 Assistant Advocate, GS-0301-14.  Issued, Washington, D.C., March 12,
 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The petition initially sought to include the incumbents of 264
 positions in AFGE's national consolidated unit.  However, as a result of
 meetings between the parties, at the time the hearing opened, only 16
 positions remained in dispute.  During the course of the hearing, the
 parties stipulated that three employees were not supervisors and should
 be included in the unit.  The parties further agreed that six other
 employees should be removed from consideration herein.  The Authority
 deems such stipulations to be motions to amend the petition which are
 hereby granted.
 
 
    /2/ Section 7103(a)(10) 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(.)
 
 
    /3/ Section 7103(a)(11) defines a "management official" as:
 
          . . . 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(.)
 
 
    /4/ Cf. Office of Personnel Management, 5 FLRA 238, 246-247 (1981)
 (wherein the Authority held that employees who are not engaged in
 performing "internal" personnel work relating directly to the personnel
 operations of their own employing agency, and therefore would not be
 faced with a conflict of interest between their jobs and union
 representation if included in the unit, are not engaged in personnel
 work in other than a purely clerical capacity within the meaning of
 section 7112(b)(3) of the Statute).