[ v20 p71 ]
The decision of the Authority follows:
20 FLRA No. 8 UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE WESTERN REGIONAL OFFICE Activity and NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 505, AFL-CIO Labor Organization Case Nos. 8-CU-40008; 8-CU-40009 8-CU-40010 OPINION CONCERNING APPLICATION FOR REVIEW /1/ On July 12, 1985, the United States Department of Justice, Immigration and Naturalization Service, Western Regional Office (the Activity) filed a timely application for review, pursuant to section 2422.17(a) of the Authority's Rules and Regulations, seeking to set aside the Regional Director's Decision and Order on Petitions for Clarification of Unit in the above-named cases. In support thereof, the Activity contended that compelling reasons within the meaning of section 2422.17(c) of the Authority's Rules and Regulations exist for granting the application. /2/ In its petitions, the Activity sought to exclude certain categories of employees from the bargaining unit represented by Local 505. The Regional Director determined that certain employees were not management officials within the meaning of section 7103(a)(11); that certain employees were not supervisors within the meaning of section 7103(a)(10); that certain employees were not primarily engaged in investigations regarding internal security of the activity within the meaning of section 7112(b)(7); and that a certain employee was not a confidential employee within the meaning of section 7103(a)(13). Thus, with the exception of one employee found to be a supervisor, the Regional Director found the employees at issue should be included in the bargaining unit. The Activity contended, as its first ground for granting the application for review in this case, that pursuant to section 2422.17(c)(2) of the Authority's Rules and Regulations there were extraordinary circumstances warranting reconsideration of an Authority policy. In support of this ground the Activity alleged that the Authority, in an earlier decision, Department of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172(1981), interpreting and applying the definition of management official, /3/ erroneously defined the term "influence." The Activity suggested that the term is correctly defined by Webster's New Collegiate Dictionary and that "the Authority is applying a narrower standard than Congress obviously intended . . . ." However, the Activity cited no authority or specific directly relevant legislative history for either of these propositions. Thus it failed to establish that extraordinary circumstances exist to warrant reconsideration of the Authority's policy as contained in well-established Authority precedent which has been applied consistently in a number of cases presenting a wide variety of facts and circumstances. The Activity's contentions in this regard constitute nothing more than mere disagreement with established Authority precedent concerning the meaning of the word "influence" as used in the statutory definition of management official. Mere disagreement with Authority precedent concerning the meaning of "influence" as used in this definition does not in the present case present extraordinary circumstances warranting reconsideration of an Authority policy. It merely presents a request to reconsider established precedent concerning the meaning of that particular word. Such a request does not rise to the level of a request reconsideration of an Authority policy. Furthermore, the Activity did not present evidence of any other extraordinary circumstances to warrant review of that precedent. /4/ Accordingly, the Activity's application for review did not present grounds that in the present case there were extraordinary circumstances warranting reconsideration of an Authority policy. As its second ground, the Activity alleged that pursuant to section 2422.17(c)(1) a substantial question of law or policy exists due to the absence of Authority precedent regarding the interpretation of the latter half of section 7120(e) /5/ of the Statute. That provision, in pertinent part, by its plain terms concerns employee participation in the management or representation of a labor organization where such participation or activity would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee. Assuming, without deciding, an absence of Authority precedent concerning the meaning and application of this portion of section 7120(e), the Authority found nothing in the application for review to demonstrate that the Regional Director's decision in this case raises a substantial question of law or policy because of the absence of such precedent. The Regional Director did not interpret or apply section 7120(e) in the circumstances of this case. In fact, there is no mention of section 7120(e) in his decision. Section 7120(e) deals with employee participation in the management or representation of a labor organization and there was no issue pertaining to such participation before him. The instant case presented issues pertaining to the exclusion of certain categories of employees from a bargaining unit. While there may be interesting, as yet unanswered questions about the relationship between the provisions in the Statute which deal with these two matters, the Activity's application for review did not demonstrate that the Regional Director's decision herein in any manner raised a substantial question of law or policy concerning that relationship. Furthermore, the Activity did not introduce evidence to indicate that any of the employees whose inclusion in the bargaining unit is at issue herein are involved in the management of a labor organization or act as representatives of a labor organization. Accordingly, as this allegation by the Activity was not relevant to the resolution of issues presented by the petitions herein, the application for review did not meet the grounds for granting an application for review as set forth in section 2422.17(c)(1) of the Authority's Rules and Regulations. The Activity's third ground alleged that with respect to a single employee, the secretary to a management official who effectuates policy in the area of labor relations, the Regional Director departed from established Authority precedent. Hence, the Activity contended that the Regional Director's decision in this regard presents, pursuant to section 2422.17(c)(1) of the Authority's Rules and Regulations, a substantial question of law or policy because of such departure from Authority precedent. The Regional Director found that the record establishes that the incumbent secretary, Ms. Ono, performs typing relating to confidential labor relations matters and has access to files which contain such materials. Nevertheless, he concluded, based on Authority precedent, that neither mere access to nor typing of occasional labor-management materials warrants the exclusion of the employee from the unit as a confidential employee. /6/ The Activity, in support of its contention that the Regional Director departed from Authority precedent in this regard, states: "The Regional Director ignored to (sic) testimony presented at the Hearing when he determined that Ms. Ono only had access to or occasionally typed labor relation (sic) material and therefore was not excluded as a confidential employee. Ms. Ono is the only secretary in the Division and the testimony presented at the Hearing clearly demonstrates that her involvement in labor relations matters rises above the level of 'mere access.'" As this passage clearly demonstrates, the Activity merely disagreed with the Regional Director's findings of fact as to Ms. Ono and his application of Authority precedent to those facts. The Activity in no manner demonstrated that the Regional Director's decision presents a substantial question of law or policy because of departure from Authority precedent. Mere disagreement with the Regional Director's application of precedent to the facts does not meet the criteria for granting an application for review pursuant to section 2422.17(c)(1) of the Authority's Rules and Regulations. /7/ Upon consideration of the Activity's application for review, including all arguments in support thereof, it was concluded that no compelling reasons exist for granting this application. Rather, the application in essence expresses mere disagreement with Authority precedent and with the Regional Director's factual findings and his application of precedent to those facts which findings have not been shown to be clearly erroneous or to have prejudicially affected the rights of any party. In so concluding, it should be noted that the delegation of authority to the Regional Directors with respect to representation cases, and the concomitant amendment of the Authority's Rules and Regulations, 48 Fed.Reg. 40189(1983) (codified at 5 C.F.R. 2422.2-2422.22), was undertaken by the Authority in order to provide for the expeditious processing and determination of representation matters. See 48 Fed.Reg. 28814(1983). Thus, this delegation, which vests primary authority and power in the Regional Directors to decide representation matters, facilitates the processing and determination of representation issues by the Regional Directors; avoids duplication of effort (with respect to resolution of representation issues) by the General Counsel and the Authority; and promotes the efficient and effective operation of the Authority and the General Counsel. With a view toward expediting the processing of representation cases, the Authority, in section 2422.17 of its amended Rules and Regulations, limited the power to grant review of Decisions and Orders of the Regional Director. Section 2422.17(c) limits the Authority's power to grant an application for review solely to those circumstances where it appears that a compelling reason exists based on four specific grounds. Therefore, when applications for review of Regional Director decisions are presented to the Authority, the first question is not whether the Authority would reach precisely the same result but whether the applicant has met the stated criteria for acceptance. In the circumstances of this case, it must be concluded that the first question be answered in the negative. Accordingly, it was determined that the application for review of the Regional Director's Decision and Order on Petitions for Clarifications of Unit should not be granted and, pursuant to section 2422.17(f)(2) of the Authority's Rules and Regulations, the decision of the Regional Director became the action of the Authority on September 10, 1985. Issued, Washington, D.C. September 13, 1985 Henry B. Frazier III, Acting Chairman FEDERAL LABOR RELATIONS AUTHORITY Opinion of Member McGinnis, concurring and dissenting. By operation of Authority rules at section 2422.17, a Decision and Order by a Regional Director in a representation matter may only be reviewed by the Authority upon timely application by a party to the matter. When such timely application is made, the Authority has three options: 1. The Authority may grant review of any of the four reasons listed in section 2422.17(c), whereafter the Authority must issue a decision in the merits of the application for review. 2. The Authority may issue a decision denying the application for review. 3. By failing to act at all within 60 days of the application for review, the Authority may effectively deny the application without taking an official action. The third of these options is never acceptable to me, since I strongly believe that the parties and the public are entitled to an Authority which can be measured by its actions rather than by its silence. The remaining options require a majority vote of the Authority Members; given the present vacancy in the Chairman position, a majority vote of the Authority is necessarily a unanimous vote. Since Acting Chairman Frazier is committed to the denial of review in this matter, I must either concur with him, thus guaranteeing the parties a decision, or disagree, thus denying the parties the decision which one of them has requested. Therefore, with great reluctance, I concur with Acting Chairman Frazier's decision to deny the Activity's application for review in this matter. I write to express my particular disagreement with that portion of the Regional Director's Decision which allows an indisputable management official under the Statute to be represented by a labor organization for the purposes of collective bargaining. While I am powerless to change this repugnant result due to the combination of the Authority's rules and Acting Chairman Frazier's position, I am compelled to state my views for the record. Dona Coultice is a Detention and Deportation Officer, GM-1801-13 with primary responsibility for the allocation of the Detention and Deportation Division's annual budget throughout the ten offices of the Western Region of the Immigration and Naturalization Service. In the course of her duties, she solicits on a quarterly basis the budgetary requirements for that quarter from each of the ten offices within the Activity. She analyzes the offices' expenditures for the previous quarter and their apparent needs for the ensuing quarter, and each year distributes the approximately $1,000,000 under her control. Normally, the requests exceed the amount of money that Coultice is authorized to distribute and she has the authority to decide how the money should be allocated without approval from her supervisor who, in most cases, does not even see Coultice's allocations. The record is replete with examples of Coultice making fundamental budgeting decisions affecting all ten offices of the INS Western Region. Under the Statute at section 7103(a)(11), an employee who is required or authorized "to formulate, determine, or influence the policies of the agency" is a management official. See, generally, Department of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172(1981). It is axiomatic that control of an organization's budget is critical to effective control of that organization's policies and goals. There can be no doubt that Dona Coultice has control of the budgetary process at a level that allows her to significantly influence the policies of her agency. It follows that she is a management official within the meaning of the Statute, and should be removed from the bargaining unit represented by the labor organization herein. The Regional Director clearly erred when he failed to reach this result. While an Application for Review under Authority rules does not compel the Authority to correct every mistake committed by a Regional Director in a representation proceeding, the Authority must grant review where, as here, a Regional Director departs from Authority precedent (section 2422.17(c)(1)(ii)). /8/ Thus, the Regional Director should have been guided by established Authority precedent excluding from bargaining units positions such as the one in question. For example, in Headquarters, 1947th Administrative Support Group, U.S. Air Force, Washington, D.C., 14 FLRA 220, 229(1984), the Authority excluded a Supply Funds Manager, GS-2001-13, from the recognized bargaining unit because he was a management official within the meaning of the Statute. Like Dona Coultice, the Supply Funds Manager had "decision, executive and internal signature authority in the area of budget allocation for supply and equipment . . . " to a significant number of diversely located Activity units. The degree of independent authority to expend funds was critical to the management official finding, in contrast to cases where the Authority found that employees whose recommendations were subject to several levels of review were not management officials. See, e.g., Department of Navy, Civil Engineering Laboratory, Port Hueneme, California (Principal Investigators), 8 FLRA 707-709(1982); Defense Communications Agency, Headquarters, Arlington, Virginia (Communications Specialists and Costs Analysts), 8 FLRA 764, 766(1982); National Guard Bureau, State of New York, Division of Military and Naval Affairs (Program and Mobility Technician), 9 FLRA 16, 18(1982). Even in non-financial areas, employees exercising important independent judgment in a manner similar to Dona Coultice have repeatedly been found to be management officials. See, e.g., Department of Army Headquarters, Rock Island Arsenal, Illinois (Public Information Specialist), 8 FLRA 758, 760(1982), Department of the Interior, Bureau of Mines Twin Cities Research Center (Assistant to Research Director), 9 FLRA 109, 112(1982) and Headquarters, Air Force Command (Quality Assurance Specialists), 9 FLRA 885, 888(1982). Thus, with the concurrence of Acting Chairman Frazier, I would vote to grant the application for review under section 2422.17(c)(1)(ii) because the Regional Director's Decision as to Dona Coultice departs from established Authority precedent. However, since Acting Chairman Frazier does not concur with my view, and in view of legitimate rights of the parties to a decision, I reluctantly join the denial of the Activity's Application for Review. William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Member McGinnis' separate opinion is set forth, infra. /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; (2) That there are extraordinary circumstances warranting reconsideration of an Authority policy; (3) That the conduct of the hearing held or any ruling made in connection with the processing has resulted in prejudicial error; or (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/ Section 7103(a)(11) of the Statute provides: 'management official' means 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/ The Activity does not contend that there is an absence of precedent concerning the meaning of the term "influence"; in fact, it acknowledges the existence of such precedent. Further, it does not argue that the Regional Director improperly applied that precedent. /5/ Section 7120(e) of the Statute provides: This chapter does not authorize participation in the management of a labor organization or acting as a representative of a labor organization by a management official, a supervisor, or a confidential employee, except as specifically provided in this chapter, or by an employee if the participation or activity would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee. /6/ Section 7103(a)(13) of the Statute provides: 'confidential employee' means an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations(.) /7/ It should be noted as to this third ground, the Activity offers no contention that the Regional Director's decision with respect to Ms. Dona Coultice, Detention and Deportation Officer, GM-1801-13, raises a substantial question of law or policy because of departure from Authority precedent. /8/ The Activity has technically raised the claim that the Regional Director did not properly apply the statutory definition of "management official" to Dona Coultice. The Activity argues that the Regional Director has failed to give meaning to the phrase "influence the policies of the agency." However, a review of the case law, infra, clearly shows that the Regional Director's error was primarily in misapplication of case law, not failure to give meaning to those words. In view of this totality of circumstances, the Authority should not deal in semantics, but rather in application of case law to factual patterns at hand, when reviewing all Applications for Review in representation matters.