[ v18 p408 ]
The decision of the Authority follows:
18 FLRA No. 55 U.S. DEPARTMENT OF LABOR/OSHA Activity and NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Labor Organization/Petitioner Case No. 3-CU-40006 DECISION AND ORDER On February 25, 1985, the Authority granted the application for review of the Acting Regional Director's Decision and Order Clarifying Unit filed by the United States Department of Labor/OSHA (DOL/OSHA) in the above-named case. On March 12, 1985, DOL/OSHA filed a motion to stay the Acting Regional Director's Decision and Order Clarifying Unit. In his Decision, the Acting Regional Director found that the incumbents in the job classifications Safety and Occupational Health Manager, GM-018-13, were not management officials within the meaning of section 7103(a)(11) of the Statute and ordered that they be included in the unit. /1/ DOL/OSHA in its application contended, pursuant to section 2422.17(c)(1) and (4) of the Authority's Rules and Regulations that the Acting Regional Director departed from Authority precedent and that his decision on a substantial factual issue was clearly erroneous and such error prejudicially affected its rights. /2/ The present case is before the Authority on the above grounds. The parties were given 15 days to provide the Authority with any additional information and arguments that might be relevant to the determination of this case. Neither party made any additional submission to the Authority. The National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO (NCFLL), seeks to clarify the bargaining unit status of the position of Safety and Occupational Health Manager, GM-018-13, based upon DOL/OSHA's contention that employees serving in said position are management officials within the meaning of section 7103(a)(11) of the Statute and must be excluded from the bargaining unit. /3/ NCFLL maintain that the incumbents are not management officials and should be included in the recognized bargaining unit. The position sought to be clarified, Safety and Occupational Health Manager, GM-018-13, organizationally known as the labor liaison, is located in the 10 regional offices of the DOL/OSHA. /4/ The labor liaison, who serves as a special assistant to the regional administrator, has the primary function of establishing communications between DOL/OSHA and private sector labor organizations and business groups in order to promote support for and compliance with DOL/OSHA's goals and objectives which concern the creation of safe and healthful work environments. The labor liaison's main goal, because of the small number of DOL/OSHA safety inspectors, is to encourage labor organizations and industry in each individual work place to establish voluntary safety programs following DOL/OSHA's guidelines which are self enforced. In this regard, the labor liaison holds training sessions and workshops for labor and management to instruct them on how to establish such safety programs. The labor liaison also is available to assist the parties in implementing such safety programs and solving any problems that may occur. The labor liaison keeps in close contact with and informs the regional administrator about any specific problems that the parties encounter in the implementation of DOL/OSHA policies and programs. Further, the labor liaison functions as a resource person and expert at executive staff meetings where DOL/OSHA programs and policies are discussed, and thus provides knowledge and information to the regional administrator and others at such meetings to guide them in making policy where appropriate. While the labor liaison may make recommendations as to changes in program emphasis and direction, such recommendations are advisory in nature. 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. The Acting Regional Director, in applying these criteria in his Decision, found that the labor liaisons did not formulate or determine agency policy and therefore were not management officials within the meaning of section 7103(a)(11) of the Statute. The Acting Regional Director inadvertently did not address whether they "influenced" agency policy pursuant to the definition of "management official" under section 7103(a)(11). In agreement with the Acting Regional Director, the Authority finds that the labor liaisons do not formulate or determine agency policy. Further, the Authority finds on the facts presented that the labor liaisons do not influence agency policy within the meaning of section 7103(a)(11) of the Statute. As indicated above, the labor liaisons are highly experienced and knowledgeable individuals in their field who provide the regional administrators with resource information and, by virtue of their primary function of dealing with private industry and labor organizations on a daily basis, provide the regional administrators and their staffs with current information on how DOL/OSHA policies are being accepted in the field. While the labor liaisons make suggestions about DOL/OSHA programs and policies which are discussed at staff meetings, the vast majority of these suggestions, which were alluded to by DOL/OSHA in its application, deal with implementation of programs and policies rather than to what the programs and policies should be. DOL/OSHA policy is made at the national level, and the regional administrators, whose main function is to implement such policies, have no authority except where explicitly indicated to make changes in these policies or programs without national office approval. Accordingly, the Authority finds that the incumbents in the job classification Safety and Occupational Health Manager, GM-018-13, are highly experienced and knowledgeable resource persons whose actions assist in implementing, as opposed to shaping, DOL/OSHA policies. The record indicates that they assist in the implementation of DOL/OSHA policy in accordance with well established guidelines and objectives as well as providing knowledge and information to their respective regional directors to guide them in carrying out the programs and policies of DOL/OSHA. It follows that the above 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. Thus, the Authority finds that the incumbents in the job classification Safety and Occupational Health Manager, GM-018-13, should be included in the bargaining unit. /5/ ORDER IT IS ORDERED that the unit sought to be clarified be, and it hereby is, clarified by including in said unit the incumbents in the job classification Safety and Occupational Health Manager, GM-018-13. Issued, Washington, D.C., June 13, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 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 . . . . /2/ Section 2422.17(c) provides: (c) The Authority may grant an application for review only where it appears that compelling reasons exist therefor. Accordingly, an application for review may be granted only upon one or more of the following grounds: (1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, Authority precedent; * * * * (4) That the Regional Director's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of a party. /3/ NCFLL is the exclusive representative of a unit of all employees stationed throughout the nation in field duty stations of the Department, excluding field duty stations located within the Washington, D.C. metropolitan area, except non-clerical employees of the Labor-Management Services Administration. /4/ At the time of the hearing, only 7 of the positions have incumbents. /5/ See U.S. Department of Housing and Urban Development, Boston Regional Office, Region I, Boston, Massachusetts, 16 FLRA No. 9 (1984); Headquarters, 1947th Administrative Support Group, U.S. Air Force, Washington, D.C., 14 FLRA 220 (1984); and National Aeronautics and Space Administration, Headquarters, Administration Division, 12 FLRA 152 (1983). In view of the disposition of this case, DOL/OSHA's motion to stay the Acting Regional Director's Decision and Order Clarifying Unit is denied.