[ v34 p407 ]
The decision of the Authority follows:
34 FLRA NO. 74 DEFENSE MAPPING AGENCY HYDROGRAPHIC/TOPOGRAPHIC CENTER LOUISVILLE OFFICE LOUISVILLE, KENTUCKY (Activity) and LOCAL 1482, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (Labor Organization/Petitioner) 4-CU-80021 ORDER GRANTING APPLICATION FOR REVIEW January 19, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This case is before the Authority on an application for review filed by the Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky (the Activity) under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Acting Regional Director's Decision and Order on a Petition for Clarification of Unit filed by Local 1482, National Federation of Federal Employees (the Union) under section 7111(b) of the Federal Service Labor - Management Relations Statute (the Statute). The Union has filed an opposition to the application for review. Through its petition, the Union sought to clarify the bargaining unit status of approximately thirty GS-1370-11 Cartographer Project Leaders and GS-1370-12 Cartographer Project Directors. On May 12, 1989, the Acting Regional Director issued a Decision and Order finding that the Cartographer Project Leaders and Cartographer Project Directors should be included in the bargaining unit. Inasmuch as the Authority had two vacancies when this application for review was received, Acting Chairman McKee issued an Interim Order on September 6, 1989, directing that consideration of the application be deferred until further notice. This interim order preserved the parties' rights under the Statute to Authority consideration of the Acting Regional Director's decision. The Authority now considers the Activity's application for review. For the reasons set forth below, we grant the application. II. Background and Acting Regional Director's Decision In 1969, the Activity granted the Union recognition for a unit of nonprofessional employees. In 1979, the Union filed a petition in Case No. 4-RO-13 seeking an election to determine whether professional employees should be included in the existing unit. An election was held, and the Regional Director thereafter issued a "Certification for Inclusion In Existing Unit" certifying the Union as the exclusive representative of a unit including professional and nonprofessional employees. On May 5, 1982, the Union filed a clarification of unit petition to include in the unit certain Cartographers, GS-1370-11, who occupied positions as "Project Leaders." On May 20, 1982, the Regional Director, after reviewing the certification issued in Case No. 4-RO-13, issued a "Corrected Certification for Inclusion In Existing Unit" that excluded "Project Leaders" from the certified unit. The Regional Director stated that "the category of 'Project Leaders' had been inadvertently omitted from the exclusions section of the Certified Unit description." Joint Exhibit 6. Thereafter, the Union withdrew its petition for clarification of unit. The unit described in the "Corrected Certification for Inclusion In Existing Unit" is as follows: Inclusions: All professional and nonprofessional employees of the Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky. Exclusions: Project leaders, employees engaged in personnel work in other than a purely clerical capacity, and management officials, confidential employees, and supervisors as defined in the Statute. Joint Exhibit 6 (emphasis added). On September 8, 1988, the Union filed a clarification of unit petition through which it sought to include Cartographer Project Leaders and Cartographer Project Directors in the unit. Before the Acting Regional Director, the Union argued that the Cartographers are neither supervisors nor management officials. The Union contended that the GS-11 Cartographer Project Leaders are first-level quality assurance personnel and the GS-12 Cartographer Project Directors are engaged principally in quality control and coordination of servicing. The Activity contended that "the Project Leaders have been excluded (from the unit) by mutual agreement." Acting Regional Director's Decision at 3 n.2. The Activity also asserted that the Project Leaders should be excluded from the unit because they: (1) are supervisors and/or management officials within the meaning of the Statute; and (2) do not share a community of interest with the employees in the bargaining unit. With respect to the Project Directors, the Activity contended that they should be excluded from the unit because they: (1) were management officials; and (2) do not share a community of interest with the employees in the bargaining unit. The Acting Regional Director found that neither the Cartographer Project Leaders nor the Cartographer Project Directors are management officials within the meaning of section 7103(a)(11) of the Statute. The Acting Regional Director found that the incumbents of those positions do not exercise any duties or responsibilities which require or authorize them to formulate, determine, or influence the policies of the Activity. She found that these employees are highly trained professionals who assist in implementing, as opposed to shaping, the Activity's policies and are responsible for accomplishing project objectives within guidelines established by the Activity. The Acting Regional Director concluded that "no circumstances exist which would warrant excluding the incumbents based on a conflict or apparent conflict of interest or due to any managerial functions." Decision at 7. The Acting Regional Director also determined that the Project Leaders are not supervisors within the meaning of section 7103(a)(10) of the Statute. She found that the Project Leaders' authority to direct employees assigned to a project is limited to the technical aspects of the project. She also found that questions with respect to discipline, overtime, staffing of projects or assignments, performance appraisals, or employee grievances are not within the Project Leaders' discretion. The Acting Regional Director also found, in accordance with the requirements of section 7112(a)(1) of the Statute, that the Cartographer Project Leaders and Cartographer Project Directors share a clear and identifiable community of interest with the other employees in the existing unit and their inclusion in the unit will promote effective dealings with, and efficiency of, the Activity's operations. With respect to the Activity's contention that the Project Leaders have been excluded from the unit by mutual agreement, the Acting Regional Director stated as follows: At the time of the professional election in 1979, these Cartographers were not eligible to vote in the representation proceedings. I reject the contention that I am bound to accept as determinative in this case any agreement by the parties concerning the exclusion of employees from the bargaining unit. In making decisions involving appropriate units and eligibility, the Authority will resolve such matters based upon evidence which reflects the actual duties as performed by the incumbents. Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, (6) FLRA 52 (1981). Decision at 3 n.2. Accordingly, based on the above findings, the Acting Regional Director included the Cartographer Project Directors and Cartographer Project Leaders in the bargaining unit represented by the Union. III. Application for Review The Activity seeks review only of the Acting Regional Director's determination that Project Leaders should be included in the unit. The Activity contends that this determination raises substantial questions of law or policy because: (1) the Acting Regional Director departed from Authority precedent in determining the supervisory status of Project Leaders; (2) there is a lack of Authority precedent to determine whether the inclusion of Project Leaders in the unit would constitute a conflict of interest between the performance of their officially assigned duties and their rights as members of the bargaining unit; and (3) there is a lack of Authority precedent to determine "if a significant number of employees, previously excluded from the bargaining unit by mutual consent of the parties and approved by the Authority, should be included in the bargaining unit without benefit of a representation election." Application at 1. The Activity also seeks review on the ground that the Acting Regional Director's decision on the "substantial factual issue of whether the Project Leaders are supervisors" within the meaning of the Statute was clearly erroneous and that this error prejudices the Activity's rights. Id. IV. Union's Opposition The Union contends that the exclusion of the Project Leaders from the certified bargaining unit in 1982 "was not done voluntarily or at the urging of the Union but because of the corrected certification issued by the FLRA" on May 20, 1982. Union's Opposition at 2. The Union also contends that the application for review should be denied because the Activity is merely attempting to relitigate the same issues raised before the Acting Regional Director. The Union asserts that the Acting Regional Director's decision is free from prejudicial error and that the Activity has failed to demonstrate that the Project Leaders are supervisors or management officials. V. Discussion We conclude that the Activity has established that compelling reasons exist for granting the application for review pursuant to the provisions of section 2422.17(c)(1) of our Rules and Regulations. Specifically, it appears that substantial questions of law or policy are raised because of the absence of, or departure from, Authority precedent with respect to: Whether a petition for clarification of unit seeking to include in a unit, without an election, employees in positions which have been previously specifically excluded from a certified bargaining unit under the circumstances presented in this case, is a permissible process for seeking to add those employees to a unit. See U.S. Department of Agriculture, United States Forest Service, Angeles National Forest, Pasadena, California, 4 A/SLMR 58 (1974). If it is determined that the Acting Regional Director was correct in processing the Union's petition for clarification of unit as to Cartographer Project Leaders, we will address the remaining issues raised by the Activity's application for review. VI. Order For the reasons discussed above. we grant the application for review. In accordance with section 2422.17(g) of the Authority's Rules and Regulations, the parties may submit briefs within 10 days after issuance of this Order. Such briefs shall be limited to the issue found meritorious for review. Briefs should be directed to: Ms. Alicia Columna Case Control Office Federal Labor Relations Authority 500 C Street, SW.