Massachusetts Army National Guard and National Federation of Federal Employees, Local 1029 (Authority decision, May 20, 1982)

Final FLRA representation decision. The Authority directly decided a unit-clarification petition. This appropriate-unit determination is excluded from the 60-day judicial-review provision by 5 U.S.C. § 7123(a)(2).

Plain-English summary

NFFE Local 1029 asked to add several Massachusetts Army National Guard jobs to its bargaining unit. The Authority included a recruiting and retention specialist because that employee supervised only full-time military members, not statutory employees. It also included aircraft and flight instructors because they implemented policy and were not shown to meet the statutory professional employee definition. It excluded purchasing, transportation, and operations and training specialists because they exercised independent supervisory judgment over employees. The Authority decided the petition directly, so no regional director ruling was affirmed or reversed.

Decision snapshot

• Authority: 5 U.S.C. §§ 7103(a)(2), (10), (11), (15), and 7111(b)(2).
• Outcome: Recruiting specialist and aircraft instructors included; other disputed positions excluded.
• Key point: Supervisory status depended on authority over statutory employees and independent judgment.

Full text (FLRA public release)

[ v08 p711 ]

08:0711(123)CU

The decision of the Authority follows:

8 FLRA No. 123

MASSACHUSETTS ARMY NATIONAL GUARD, TAGO,
NATIONAL GUARD BUREAU, DEPARTMENT OF DEFENSE
Activity

and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1029
Petitioner/Labor Organization

Case No. 1-CU-18

DECISION AND ORDER CLARIFYING UNIT

UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING
OFFICER OF THE AUTHORITY. THE HEARING OFFICER'S RULINGS MADE AT THE
HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.

UPON THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING A BRIEF FILED
BY THE ACTIVITY, THE AUTHORITY FINDS: ESSENTIALLY, WHEREAS THE
PETITIONER (NFFE) SEEKS TO CLARIFY ITS EXISTING UNIT /1/ BY INCLUDING
INCUMBENTS IN VARIOUS JOB CLASSIFICATIONS, THE ACTIVITY CONTENDS THAT
THE INCUMBENTS IN THESE CLASSIFICATIONS ARE SUPERVISORS, MANAGEMENT
OFFICIALS, OR PROFESSIONAL EMPLOYEES.

SUPERVISORS /2/

RECRUITING AND RETENTION SPECIALIST, GS-0301-09

IN THE AUTHORITY'S VIEW, THE INCUMBENT, WHO ALLEGEDLY SUPERVISES A
CLERK-TYPIST AND A TECHNICIAN, EACH OF WHOM IS NOW IN A FULL TIME
MILITARY POSITION, DOES NOT SUPERVISE ANY "EMPLOYEE" WITHIN THE MEANING
OF SECTION 7103(A)(2) OF THE STATUTE, /3/ AND IS THEREFORE NOT A
SUPERVISOR AND SHALL BE INCLUDED IN THE BARGAINING UNIT.

LEAD PURCHASING AGENT, GS-1105-06

IN THE AUTHORITY'S VIEW, THE INCUMBENT, WHO IS IN CHARGE OF THREE
SUBORDINATES, ESTABLISHES THE PRIORITY OF THEIR WORK, APPROVES THEIR
LEAVE, REVIEWS AND IS HELD RESPONSIBLE FOR THEIR WORK PRODUCT, COUNSELS
THEM, AND HAS GIVEN WRITTEN REPRIMANDS AND MADE EFFECTIVE
RECOMMENDATIONS WITH REGARD TO AWARDS AND QUALITY STEP INCREASES AND
WHO
CONSISTENTLY EXERCISES INDEPENDENT JUDGMENT WITH REGARD TO THE ABOVE,
THEREFORE IS A SUPERVISOR WITHIN THE MEANING OF THE STATUTE AND IS
EXCLUDED FROM THE BARGAINING UNIT.

TRANSPORTATION SPECIALIST, GS-2101-08

IN THE AUTHORITY'S VIEW, THE INCUMBENT, WHO EVALUATES ONE
SUBORDINATE, APPROVES HIS LEAVE, ESTABLISHES THE PRIORITY OF HIS WORK,
IS RESPONSIBLE FOR HIS WORK PRODUCT, AND HAS EFFECTIVELY RECOMMENDED HIS
SELECTION AND SUBSEQUENT AWARDS, AND WHO CONSISTENTLY EXERCISES
INDEPENDENT JUDGMENT WITH REGARD TO THE ABOVE, THEREFORE IS A SUPERVISOR
WITHIN THE MEANING OF THE STATUTE AND IS EXCLUDED FROM THE BARGAINING
UNIT.

OPERATIONS AND TRAINING SPECIALIST, GS-0301-10 AND GS-0301-09 (OTS)

IN THE AUTHORITY'S VIEW, THE INCUMBENTS IN THESE POSITIONS (FOUR IN
GS-0301-10 AND 15 IN GS-0301-09), WHO ASSIGN AND SET THE WORK PRIORITIES
OF ALL OTHER SPECIALISTS, COUNSEL THE SPECIALISTS, AND HAVE EFFECTIVELY
RECOMMENDED EITHER DISCIPLINE OR AWARDS FOR THOSE SPECIALISTS, AND WHO
CONSISTENTLY EXERCISE INDEPENDENT JUDGMENT WITH REGARD TO THE ABOVE,
THEREFORE ARE SUPERVISORS WITHIN THE MEANING OF THE STATUTE AND ARE
EXCLUDED FROM THE BARGAINING UNIT.

MANAGEMENT OFFICIALS /4/ OR PROFESSIONAL EMPLOYEES /5/

IN THE AUTHORITY'S VIEW, THE INCUMBENTS CLASSIFIED AS AIRCRAFT AND
FLIGHT INSTRUCTORS (SAFETY), GS-2181-12 WHO EVALUATE AVIATOR FLIGHT
TECHNIQUES AND CAPABILITIES AND THE EXTENT TO WHICH FURTHER TRAINING MAY
BE REQUIRED FOR FULL QUALIFICATION, IN ALL CASES SUBJECT TO REVIEW BY
HIGHER AUTHORITY, IMPLEMENT RATHER THAN SHAPE ACTIVITY POLICIES AND ARE
THEREFORE NOT MANAGEMENT OFFICIALS WITHIN THE MEANING OF SECTION
7103(A)(11) OF THE STATUTE /6/ AND ARE INCLUDED IN THE BARGAINING UNIT.

WITH RESPECT TO THE INCUMBENT'S ALLEGED "PROFESSIONAL" STATUS, IN THE
AUTHORITY'S VIEW, AS THE QUALIFICATIONS FOR THE POSITION DO NOT REQUIRE
"KNOWLEDGE OF AN ADVANCED TYPE IN A FIELD OF SCIENCE OR LEARNING
CUSTOMARILY ACQUIRED BY A PROLONGED COURSE OF SPECIALIZED INTELLECTUAL
INSTRUCTION AND STUDY IN AN INSTITUTION OF HIGHER LEARNING" AND THE
RECORD HAS NOT ESTABLISHED THAT THE INCUMBENTS HAVE OTHERWISE MET THE
DEFINITION OF "PROFESSIONAL EMPLOYEES" WITHIN THE MEANING OF SECTION
7103(A)(15) OF THE STATUTE, THEY ARE INCLUDED IN THE BARGAINING UNIT.

ORDER

IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN BE,
AND IT HEREBY IS, CLARIFIED TO INCLUDE THE INCUMBENTS IN THE POSITIONS
OF RECRUITING AND RETENTION SPECIALIST, GS-0301-09, AND AIRCRAFT AND
FLIGHT INSTRUCTOR (SAFETY), GS-2181-12.

IT IS HEREBY FURTHER ORDERED THAT, WITH RESPECT TO ALL OTHER
POSITIONS SOUGHT TO BE INCLUDED, BUT WHICH THE AUTHORITY HAS FOUND MUST
BE EXCLUDED FROM THE BARGAINING UNIT, THE PETITION IN THIS CASE IS
HEREBY DISMISSED.

ISSUED, WASHINGTON, D.C., MAY 20, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ THE PETITIONER WAS CERTIFIED ON JULY 19, 1976, AS THE EXCLUSIVE
REPRESENTATIVE OF A UNIT CONSISTING OF: ALL MASSACHUSETTS ARMY NATIONAL
GUARD TECHNICIANS, EXCLUDING ALL MANAGEMENT OFFICIALS, SUPERVISORS (AS
DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED) AND EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.

/2/ SECTION 7103(A)(10) OF THE STATUTE DEFINES A "SUPERVISOR" AS:

. . . AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING AUTHORITY IN THE
INTEREST OF THE AGENCY TO

HIRE, DIRECT, ASSIGN, PROMOTE, REWARD, TRANSFER, FURLOUGH, LAYOFF,
RECALL, SUSPEND,

DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR GRIEVANCES, OR TO
EFFECTIVELY RECOMMEND SUCH

ACTION, IF THE EXERCISE OF THE AUTHORITY IS NOT MERELY ROUTINE OR
CLERICAL IN NATURE BUT

REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT(.)

/3/ SEE, NORTH CAROLINA AIR NATIONAL GUARD, CHARLOTTE, NORTH
CAROLINA, 4 FLRA NO. 44(1981).

/4/ SECTION 7103(A)(11) OF THE STATUTE 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(.)

/5/ SECTION 7103(A)(15) OF THE STATUTE PROVIDES:

(15) 'PROFESSIONAL EMPLOYEE' MEANS--

(A) AN EMPLOYEE ENGAGED IN THE PERFORMANCE OF WORK--

(I) REQUIRING KNOWLEDGE OF AN ADVANCED TYPE IN A FIELD OF SCIENCE OR
LEARNING CUSTOMARILY

ACQUIRED BY A PROLONGED COURSE OF SPECIALIZED INTELLECTUAL
INSTRUCTION AND STUDY IN AN

INSTITUTION OF HIGHER LEARNING OR A HOSPITAL (AS DISTINGUISHED FROM
KNOWLEDGE ACQUIRED BY A

GENERAL ACADEMIC EDUCATION, OR FROM AN APPRENTICESHIP, OR FROM
TRAINING IN THE PERFORMANCE OF

ROUTINE MENTAL, MANUAL, MECHANICAL, OR PHYSICAL ACTIVITIES);

(II) REQUIRING THE CONSISTENT EXERCISE OF DISCRETION AND JUDGMENT IN
ITS PERFORMANCE;

(III) WHICH IS PREDOMINANTLY INTELLECTUAL AND VARIED IN CHARACTER (AS
DISTINGUISHED FROM

ROUTINE MENTAL, MANUAL, MECHANICAL, OR PHYSICAL WORK); AND

(IV) WHICH IS OF SUCH CHARACTER THAT THE OUTPUT PRODUCED OR THE
RESULT ACCOMPLISHED BY SUCH

WORK CANNOT BE STANDARDIZED IN RELATION TO A GIVEN PERIOD OF TIME;
OR

(B) AN EMPLOYEE WHO HAS COMPLETED THE COURSES OF SPECIALIZED
INTELLECTUAL INSTRUCTION AND

STUDY DESCRIBED IN SUBPARAGRAPH (1)(I) OF THIS PARAGRAPH AND IS
PERFORMING RELATED WORK UNDER

APPROPRIATE DIRECTION OR GUIDANCE TO QUALIFY THE EMPLOYEE AS A
PROFESSIONAL EMPLOYEE DESCRIBED

IN SUBPARAGRAPH (A) OF THIS PARAGRAPH(.)

/6/ DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION
OFFICE, 7 FLRA NO. 24(1981).