18:0408(55)CU - Labor/OSHA and National Council of Field Labor Locals, AFGE -- 1985 FLRAdec RP

 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.