United States Department of Veterans Affairs (Authority decision, December 11, 2020)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority denying a request for a general statement of policy or guidance. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Department of Veterans Affairs asked the Authority to broaden and clarify which employees qualify as management officials excluded from bargaining units. It proposed treating employees who spent more than one-quarter of their time formulating, determining, or influencing agency policy as management officials. The Authority concluded that the question should be addressed through the facts of an actual dispute rather than a general ruling. It denied the request without changing the existing standard.

Decision snapshot

• Authority: 5 U.S.C. §§ 7103(a)(10), 7103(a)(11), 7112(b)(1), and 7123(a); 5 C.F.R. §§ 2427.2 and 2427.5
• Outcome: The Authority denied the VA's request for a general statement of policy or guidance.
• Key point: The scope of the management-official exclusion is better resolved on a concrete factual record than through an abstract general ruling.

Full text (FLRA public release)

71 FLRA No. 225

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS

(Petitioner)

0‑PS-48

_____

DECISION ON

REQUEST FOR GENERAL STATEMENT

OF POLICY OR GUIDANCE

December 11, 2020

_____

Before the Authority: Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member DuBester concurring)

Background

In accordance with § 2427.2 of the Authority’s Regulations,[1] the Department of Veterans Affairs (Petitioner) requests a general statement of policy or guidance on the following topic: “What is the scope of coverage for the term ‘management official’ under 5 U.S.C. § 7103(a)(11) in the context of bargaining unit determinations?”[2]

Under § 7112(b)(1) of the Federal Service Labor-Management Relations Statute (the Statute), a bargaining unit “shall not be determined to be appropriate . . . if it includes . . . any management official or supervisor.”[3] The Statute defines “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]

In its request, the Petitioner summarizes Authority precedent interpreting the definition of “management official”[5] and asks that we issue a general statement of policy or guidance that would clarify the meaning of this term to encompass a broader category of employees.[6] In support of its request, Petitioner asserts that under the Authority’s existing interpretation, “essentially only individuals in leadership roles can qualify” as management officials, thereby “creat[ing] a significant overlap with the definition of ‘supervisor’” in § 7103(a)(10) of the Statute.[7] Petitioner contends that because the Statute “indicates that an individual need only meet one of the terms ‘formulate,’ ‘determine,’ or ‘influence’ to meet the definition [of management official],” the Authority should interpret this definition to include “an individual who performs agency‑related duties in excess of 25% of the time, whether via formulating policy, determining policy, or influencing such policy.”[8]

Decision

Upon careful consideration of the Petitioner’s request, we find that it is not appropriate for resolution through the issuance of a general ruling.[9] In our view, the questions posed by this request would most appropriately be addressed in the context of the facts and circumstances presented by parties involved in an actual dispute.[10] Accordingly, we deny the request.

Order

We deny the Petitioner’s request.

Member DuBester, concurring:

I agree with the Decision to deny the Petitioner’s request.

[1] 5 C.F.R. § 2427.2.

[2] Petitioner’s Request (Request) at 1.

[3] 5 U.S.C. § 7112(b)(1).

[4] Id. § 7103(a)(11).

[5] Petitioner may also find the Authority’s recent decision where we addressed and clarified, in part, the definition of management official instructive. U.S. DOJ, Exec. Office for Immigration Review, 71 FLRA 1046, 1048 (2020) (Member DuBester dissenting).

[6] Request at 2-9.

[7] Id. at 2 (citing 5 U.S.C. § 7103(a)(10)). On this point, Petitioner additionally contends that the Authority “has applied the concept or terms related to ‘independent judgment’ to the analysis of whether individuals are management officials, further conflating management officials with supervisors” even though, “unlike the definition of supervisor under the Statute, the definition of management official makes no

reference to ‘the consistent exercise of independent judgment.’” Id. at 8 (citing 5 U.S.C. § 7103(a)(10), (11)).

[8] Id. at 5.

[9] 5 C.F.R. § 2427.5.

[10] E.g., Gen. Counsel, 51 FLRA 409, 412 (1995) (citing Order Denying Request for Gen. Ruling, 14 FLRA 757, 758 (1984); Order Denying Request for a Gen. Ruling, 9 FLRA 823, 824 (1982)).