Department of Energy Headquarters and NTEU (Authority decision, April 19, 1991)

Final FLRA representation decision. This order partially grants and partially denies review of a unit clarification. It concerns an appropriate-unit determination under 5 U.S.C. § 7112. Section 7123(a)(2) excludes such an Authority order from the ordinary 60-day judicial-review provision.

Plain-English summary

The Energy Department challenged a regional director’s decision to include 32 GM 15 attorneys in an existing bargaining unit. The Authority found the finance section attorneys were management officials and excluded them. It upheld inclusion of the other listed attorneys. The agency’s new supervisor and confidential employee claims were too late for review.

Decision snapshot

• Authority: 5 U.S.C. § 7103(a)(11).
• Outcome: Regional unit decision partly reversed and partly upheld.
• Key point: Management status depended on the attorneys’ duties and could not be asserted through late new claims.

Full text (FLRA public release)

[ v40 p264 ]

40:0264(27)CU

The decision of the Authority follows:

40 FLRA No. 27

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF ENERGY

HEADQUARTERS

WASHINGTON, D.C.

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Labor Organization/Petitioner)

3-CU-00018

ORDER GRANTING IN PART AND DENYING IN PART

APPLICATION FOR REVIEW

April 19, 1991

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 Agency under section 2422.17(a) of the
Authority's Rules and Regulations. The Agency is seeking
review of the Regional Director's (RD) Decision and Order on
Petition for Clarification of Unit. The RD found that 32
individuals encumbering GM-15 level attorney positions in the
Office of the General Counsel are not management officials
within the meaning of section 7103(a)(11) of the Federal
Service Labor-Management Relations Statute (the Statute) and
should be included in the existing bargaining unit. The
Petitioner (Union) filed an opposition to the application for
review.

For the reasons set forth below, we grant the application
as to the RD's finding that the GM-15 attorneys in the Finance
Section of the Office of the Assistant General Counsel for
Procurement and Finance, GC-34, are not management officials.
We deny the application as to the RD's findings concerning all
other GM-15 attorneys alleged to be management officials. We
also find that the Agency's

claim that certain GM-15 attorneys are either supervisors or
confidential employees under the Statute was not timely
presented to the Regional Director, in accordance with section
2422.17(b) of the Authority's Rules and Regulations, and is not
properly before the Authority.

II. Background and RD's Decision

The Union holds certification as the exclusive

representative in the following unit:

All professional and nonprofessional employees
of the Department of Energy Headquarters in the
Washington, D.C. metropolitan area excluding
employees of the Federal Energy Regulatory
Commission, confidential employees, employees
engaged in Federal personnel work in other than
a purely clerical capacity, management
officials, and supervisors as defined in the
order.

The Union filed the instant Clarification of
Unit (CU) petition seeking to include the
following in the bargaining unit: "GM-15
Attorney-Advisor (contract) - Carol Cowgill and
all other GM-15 Attorney Advisory [sic] in the
Office of the General Counsel." Authority
Exhibit No. 1(a), Attachment. The record
indicates that there are both supervisory and
nonsupervisory GM-15 attorneys in the Office of
the General Counsel. The petition here concerns
only the nonsupervisory GM-15 attorneys.

The RD concluded that 32 individuals
encumbering GM-15 attorney positions in eight
offices within the Office of the General Counsel
should be included in the existing bargaining
unit because they are not management officials

within the meaning of section 7103(a)(11) of the
Statute. The RD made no determinations with
regard to the bargaining unit eligibility of
other GM-15 attorneys in four additional General
Counsel offices because no testimony was
presented regarding their duties,
responsibilities, and functions. No review was
sought as to the RD's determination concerning
these positions.

In reaching his determination that the
incumbents in the eight offices within the
Office of the General Counsel are not management
officials, the RD relied on the Authority's
decision in Department of the Navy, Automatic

Data Processing Selection Office, 7 FLRA 172
(1981) (Navy, ADP). In that case, the Authority
defined "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.

Applying the definition set forth in Navy,
ADP to this case, the RD found that the
incumbents do not perform duties which either
require or authorize them to formulate,
determine, or influence the Agency's policies.
The RD found that attorneys in the Office of the
General Counsel, including the incumbents,
perform essentially the same duties, although
the GM-15 attorneys work more independently and
are assigned more complex cases with more
responsibility than lower-graded attorneys. The
RD also found that the GM-15 attorneys make
recommendations as to the implementation of
Agency policies, regulations, and program
activities, but that in performing these
functions, they act as highly skilled attorneys
providing legal advice and recommendations
concerning their respective areas of expertise.
Finally, the RD found that the recommendations

and work products of the GM-15 attorneys were
reviewed by several supervisory levels and did
not extend to a point of creating, settling
upon, or bringing about the Agency's policy or
course of action.

III. The Application for Review

The Agency seeks review of the RD's decision
on the grounds that (1) a substantial question
of law or policy is raised because of the
absence of, or a departure from, Authority
precedent; and (2) the RD's decision on a
substantial factual issue is clearly erroneous.

The Agency challenges the RD's findings that
the attorneys are not management officials. The
Agency contends, based on Navy, ADP, that
"[t]here is ample testimony in the record that
some of the GM-15 attorneys in this case, and
potentially all of them, clearly meet one or
more of the above three criteria for the status
of 'management official'." Application for
Review at 18. The Agency argues that the
attorneys are management officials because they
"participate in the formulation or determination
of agency policy and influence that policy as it
is developed and refined." Id. The Agency also
asserts that the attorneys are management
officials because they assist in shaping, rather
than simply implementing, the Agency's policies.
The Agency claims that the RD placed "undue
stress" on the fact that the work of the GM-15
attorneys is subject to review and being
overruled. The Agency notes that under
Authority precedent set forth in Department of
Agriculture, Food and Nutrition Service,
Alexandria, Virginia, 34 FLRA 143 (1990)
(Agriculture, Food and Nutrition), the degree of
higher level review or approval is simply one
factor to consider in determining whether an
employee is a management official, but is not
the sole factor.

The Agency also contends that certain of the
attorneys are supervisors and confidential
employees under the Statute, and must be
excluded from the unit on that basis. The
Agency acknowledges that the hearing on the CU
petition was based on whether or not the
employees are management officials. However,
the Agency asserts that the record contains
substantial evidence concerning its contention
and, as the evidence was heard by the RD, and
addressed by the Union in its post-hearing
brief, the contention is properly before the
Authority at this time.

IV. The Opposition to the Application

The Union contends that the Agency has failed
to submit compelling reasons for granting review
of the RD's decision under section 2422.17(c) of
the Authority's Rules and Regulations.

First, the Union argues that the RD's
decision is consistent with Authority precedent
in Navy, ADP. Second, the Union argues that the
RD did not deviate from Authority precedent as
set forth in Agriculture, Food and Nutrition,
because the RD based his findings on all of the
duties and responsibilities of the GM-15
attorneys, not just on the fact that their work
was subject to higher level review.

The Union also argues that the Agency is
precluded by section 2422.17(b) of the
Authority's Rules and Regulations from
asserting, for the first time in its application
for review, that the GM-15 attorneys are either
supervisors or confidential employees under the
Statute. The Union states that "[t]here was no
testimony elicited before the Regional Director
on these factual allegations." Opposition at 7.
However, the Union also sets forth arguments
concerning the Agency's claim that one employee
is a confidential employee.

V. Analysis and Conclusions

For the following reasons, we conclude that
the Agency has established compelling reasons
within the meaning of section 2422.17(c)(1) of
the Authority's Rules and Regulations for
granting the application for review, only as it
concerns the GM-15 attorneys in the Finance
Section of the Office of the Assistant General
Counsel for Procurement and Finance, GC-34. We
find that the RD's decision that the employees
are not management officials raises a
substantial question of law or policy because of
a departure from Authority precedent.

We further conclude, however, that no
compelling reasons exist within the meaning of
section 2422.17(c) of the Authority's Rules and
Regulations for granting review of the
application concerning the RD's findings that
the remaining GM-15 attorneys in dispute are not
management officials and should be included in
the unit.

Finally, we conclude that the Agency's
contention that certain GM-15 attorneys are
supervisors or confidential employees is not
properly before the Authority.

A. Attorneys Alleged to be Management
Officials

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." As the
Authority stated in Navy, ADP, the definition of
management officials includes 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. 7 FLRA at 177.
As the Authority also stated in Navy, ADP, the
term "'to influence'" is synonymous with "'to
effectively influence[,]'" and means "to bring
about or to obtain a result." Id. at 174, 175.

Except for the attorneys in the Finance
Section of the Office of the Assistant General
Counsel for Procurement and Finance, GC-34, we
agree with the RD that the attorneys are not
management officials.

With regard, first, to the attorneys outside
the Finance Section, the record indicates that
some or all of these employees are engaged in
the following activities: providing legal
advice on energy-related matters; participating
in litigation on behalf of the Agency; serving
on various committees and panels; drafting
regulations and other documents; and negotiating
interagency and settlement agreements and Agency
contracts relating to patents and copyrights.

The RD found that the attorneys were not
management officials because they did not
perform duties which require or authorize them
to formulate, determine, or influence the
Agency's policies within the meaning of section
7103(a)(11) of the Statute. The RD found that
the GM-15 attorneys act as highly skilled
attorneys who provide legal advice and
recommendations concerning their respective
areas of expertise and that their
recommendations do not extend to a point of
creating, settling upon, or bringing about the
Agency's policy or course of action.

The Agency, in its application for review,
argues that the attorneys participate in the
formulation or determination of policy and
influence what the policy will be and, thus,
shape the Agency's policy.

In our view, the record establishes that the
attorneys do not function as management
officials. Instead, they serve as highly
trained experts who provide legal advice and
assistance within their areas of knowledge and
who represent the Agency in various capacities.

For example, the attorneys render legal
advice to the Agency officials who promulgate
policy and engage in litigation activities on
behalf of the Agency. In this manner, the
attorneys are involved in providing expertise
and implementing, rather than shaping, the
Agency's policies. See U.S. Department of
Housing and Urban Development, Boston Regional
Office, Region I, Boston, Massachusetts, 16 FLRA
38, 39 (1984) (employees classified as
GM-Attorney Advisors (General) are highly
trained and experienced professionals who handle
litigation on behalf of the agency, provide
legal expertise and interpret agency policies
and are not management officials); Merit Systems
Protection Board, 12 FLRA 137, 140 (1983)
(employees classified as Attorney-Examiners,
General Attorneys, and Trial Attorneys (General)
who provide legal advice and make
recommendations on policy issues do not
influence the establishment of agency policy, as
their work is directed by a superior and their
recommendations are reviewed as those of experts
or professionals rather than those of management
officials); Equal Employment Opportunity
Commission, 9 FLRA 973, 975 (1982) (employees
classified as General Attorneys, Attorney
Examiners, and Attorney Advisors (Civil Rights)
found to be professionals whose actions assist
in implementing, as opposed to shaping, the
agency's policies).

Similarly, as to the function of serving on
committees and panels, the record establishes
that the attorneys engaged in this activity act
as resource persons providing technical
expertise, rather than formulating or
effectively influencing the Agency's policy.
See U.S. Environmental Protection Agency,
Research Triangle Park, North Carolina, 12 FLRA
358, 359 (1983) (employees serving on committees
act as resource persons to those who make policy
and are not management officials). Compare,
U.S. Coast Guard, Headquarters, Washington,
D.C., 7 FLRA 743, 744-45 (1982) (employee who
serves as chairman of international work group
and makes policy recommendations found to be a
management official).

As to the conduct of employees in drafting
regulations and other documents, the record
indicates that the employees are utilizing their
technical expertise in developing regulations or
preparing documents, but that the attorneys

do not establish the Agency's policy. See, for
example, Department of the Interior, U.S. Fish
and Wildlife Service, Patuxent Wildlife Research
Center, Laurel, Maryland, 7 FLRA 643, 648 (1982)
(employees who provide input into the agency's
national hunting regulations are simply experts
or professionals rendering resource
information). Compare Headquarters, Space
Division, Air Force Systems Command, Department
of the Air Force, Department of Defense, 9 FLRA
885, 888 (1982) (Space Division) (employees who
have responsibility for authoring and
interpreting regulations which set forth agency
policy are management officials). Generally,
signatory authority for these documents resides
at higher levels within the Agency. On the one
occasion when an employee signed off on a
document, the record indicates that the attorney
did not have full responsibility for the
contents of the document.

With regard to the negotiation of settlement
and other agreements, the record establishes
that the employees act as highly skilled
professionals in implementing the Agency's
policy objectives. In fact, the Agency
acknowledges that employees who negotiate patent
waivers, for example, do so within guidelines
and statutory constraints.

Finally, we note, as did the RD, that by
virtue of their expertise, the attorneys
frequently work independently and with little
direct supervision. These facts, however,
reflect that the attorneys are highly skilled
professionals but do not establish that the
employees formulate or effectively influence the
Agency's policy within the meaning of section
7103(a)(11) of the Statute. Additionally, we
note, contrary to the Agency, that the RD did
not place "undue stress" on the fact that the
work of the GM-15 attorneys is subject to review
and being overruled. Rather, the RD's
determinations were based on all his findings
concerning the duties and responsibilities of
the attorneys.

In sum, we conclude that the RD properly
found that the attorneys are not management
officials and should be included in the unit.

However, as to the attorneys in the Finance
Section of the Office of the Assistant General
Counsel for Procurement and Finance, GC-34, the
record establishes that they are management
officials.

The RD found that the GM-15 attorneys in the
Finance Section review written products for
legal sufficiency; serve as legal advisors on
task forces with Agency

representatives; provide legal advice to the
General Counsel and Agency officials on finance
matters; and provide recommendations on Agency
finance programs and activities.

In its application for review, the Agency
argues that the attorneys have wide discretion
to act for the General Counsel and the Agency
involving alternative fuels matters; make
independent and unreviewed decisions; draft
final documents; take independent action with
regard to multi-million dollar properties; have
independent signatory authority; represent the
Agency at multi-party negotiations over loan
guarantees and property closings; meet with and
advise the Under Secretary and Deputy Secretary
of the Agency; substantively influence the
formulation of Agency policies by providing
valued advice; and have authority to override
the role of the program and contracting
officers.

The record indicates that these attorneys
effectively influence courses of action for the
Agency. Thus, the attorneys have wide
discretion to act for the General Counsel and
the Agency, making independent and unreviewed
decisions with regard to energy matters. In
this connection, the attorneys also have full
signatory authority to bind the Agency. By way
of example, the record indicates that one of the
attorneys made decisions on behalf of the Agency
with regard to the foreclosure of a
multi-million dollar barge terminal facility and
also made decisions concerning the disposal of
various alternative fuel plants. Both the
decisions made and the documents subsequently
prepared were signed by the attorney on behalf
of the Office of the General Counsel. The
signatory authority exercised is unlike that of
the other attorneys found not to be management
officials because, in this instance, the
employee had full authority to decide the course
of action on behalf of the Agency. See
Headquarters, 1947th Administrative Support
Group, U.S. Air Force, Washington, D.C., 14 FLRA
220, 228-29 (1984) (employees with signatory
authority to bind the United States on decisions
made at international conferences regarding the
development of airlift procedures, in the area
of budget allocation for supply and equipment to
Air National Guard units, and with regard to
payments to various organizations and programs
totalling in the millions of dollars, found to
be management officials); Space Division, 9 FLRA
at 888 (employees who negotiate and administer
contracts with final signatory authority to bind
the agency and its resources held to be
management officials).

The record also indicates that one of the
attorneys made decisions concerning financial
closings involving the

sale of assets and the disposal of property, and
negotiated bankruptcy-type settlement
agreements. The attorneys also have the
authority to override the action of program
offices by withholding concurrence on the
particular program matter, thus influencing the
course of action the Agency takes.

In sum, we find that the attorneys in the
Finance Section influence Agency policy by
creating and bringing about Agency policy
determinations. Accordingly, the GM-15
attorneys in the Finance Section of the Office
of the Assistant General Counsel for Procurement
and Finance are management officials under the
Statute and should continue to be excluded from
the bargaining unit.

B. Attorneys Alleged to be Supervisors or

Confidential Employees

Finally, the Agency contends that
certain attorneys are supervisors or
confidential employees and should be
excluded from the unit on that basis. The
Union argues that the Agency is precluded
from asserting this claim, for the first
time, in its application for review.

Section 2422.17(b) of the Authority's
Rules and Regulations states, in pertinent
part, that:

An application may not raise any issue
or allege

any facts not timely presented to the Regional

Director.

We find that the Agency did not timely
present to the Regional Director the contention
that certain employees are supervisors or
confidential employees. Rather, the Agency
raised this issue, for the first time, in its
application for review. Consequently, under our
Rules and Regulations, the issue is not properly
before us. The Agency's assertion that the
record contains evidence to support its
contention does not establish that the issue was
timely raised, as is required by our
Regulations.

VI. Order

We grant the application for review as to the
RD's finding that the GM-15 attorneys in the
Finance Section of the Office of the Assistant
General Counsel for Procurement and Finance,
GC-34, are not management officials. We find
that these GM-15 attorneys are management
officials and should continue to be excluded
from the bargaining unit.

We deny the application as to the RD's
findings that the other GM-15 attorneys are not
management officials. We also find that the
Agency's contention that certain GM-15 attorneys
are either supervisors or confidential employees
under the Statute was not timely raised before
the RD and is not properly before us for review.

Accordingly, the bargaining unit for which
clarification was sought is clarified to include
the GM-15 attorneys in the following Offices of
the Assistant General Counsel: Conservation and
Regulations, GC-12 (presently GC-41); Special
Litigation, GC-21; General Litigation, GC-22;
Nuclear Affairs (presently named Civilian
Nuclear Program), GC-31; Natural Gas and Mineral
Leasing, GC-32 (presently named Fossil Energy,
GC-14); Regulatory Interventions and Power
Marketing, GC-33; the Procurement Section of
Procurement and Finance, GC-34; and Patents,
GC-42.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)