Small Business Administration and American Federation of Government Employees (Authority decision, March 12, 1985)

Final FLRA representation decision. This order clarifies the bargaining unit and ends the proceeding before the Authority. It determines which employees are excluded from the unit under the federal labor statute. Section 7123(a)(2) expressly excludes an Authority order involving an appropriate-unit determination under 5 U.S.C. § 7112 from the 60-day judicial-review provision in § 7123(a).

Plain-English summary

The Small Business Administration sought to clarify whether seven employees belonged in a nationwide AFGE bargaining unit. The Authority excluded four whose independent judgment in assigning and directing work, and in one case recommending awards, made them supervisors. It retained three economists and assistant advocates because their analytical and advisory work did not give them authority to shape the SBA's own policies. The order identifies each employee included or excluded.

Decision snapshot

• Authority: Supervisor and management-official definitions under 5 U.S.C. § 7103(a)(10) and (11).
• Outcome: Authority directly clarified the unit by excluding four supervisors and including three specialists.
• Key point: Advising on policy effects did not make the retained employees management officials of the SBA.

Full text (FLRA public release)

[ v17 p188 ]

17:0188(29)CU

The decision of the Authority follows:

17 FLRA No. 29

SMALL BUSINESS ADMINISTRATION
Activity

and

NATIONAL OFFICE, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Petitioner

Case No. 3-CU-30033

DECISION AND ORDER CLARIFYING UNIT

Upon a petition duly filed with the 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 careful consideration of the entire record, including the parties' contentions, the Authority finds: The National Office, American Federation of Government Employees, AFL-CIO (AFGE), was certified as the exclusive representative of a nationwide consolidated unit of professional and nonprofessional employees of the Small Business Administration (SBA). Essentially, the petition seeks to clarify the bargaining unit status of seven employees based on the Activity's contention that they are either supervisors or management officials and should be excluded from the unit. /1/ SUPERVISORS

The Activity contends that the following employees are supervisors within the meaning of section 7103(a)(10) of the Statute, /2/ and should be excluded from the unit: Raymond D. Marchakitus, Supervisory Economics, GM-0110-15; Alice K. Cullen, Economist, GM-0110-14; John P. Hightower, Computer System Analyst, GM-0334-13; and Robert E. L. Gregg, Computer System Analyst, GM-0334-13. Of these, the record establishes that Cullen, Marchakitus and Gregg assign and direct work; and that Hightower assigns and directs work and has effectively recommended subordinates for awards. The Authority further finds that the above duties are not merely routine or clerical in nature, but require the consistent exercise of independent judgment. Accordingly, the employees listed above are supervisors under the meaning of section 7103(a)(10) of the Statute and should be excluded from the unit. MANAGEMENT OFFICIALS

The Activity further contends that the following employees are management officials within the meaning of section 7103(a)(11) of the Statute /3/ and must be excluded from the unit: Maureen Glebes, Economist, GS-0110-14; Robert F. Clairmont, Assistant Advocate, GS-0301-14; and Gerald T. Lawson, Assistant Advocate, GS-0301-14. In the lead case of Department of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172 (1981), the Authority interpreted the statutory definition of "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 these criteria to the instant case, the Authority finds that the above employees are highly trained resource persons whose actions assist in implementing, as opposed to shaping, the Activity's policies. Thus, the record establishes that Glebes is primarily involved with studying economic trends of legislation and regulation to determine the impact on small businesses. She reports these findings to the policy staff and makes recommendations as to what these trends are and why they should be looking at them. Her major function is to give people who are in a policy making position in both the SBA and other government agencies some idea of what the state of small business is and what industries will be affected and how they will be affected by action that may be taken by government agencies. Further, the record establishes that Clairmont and Lawson are primarily troubleshooters who, within their own program responsibilities, look into policies and activities of Federal agencies which have the potential or do in fact have an adverse impact upon small businesses. They operate under the guidelines of Public Law 94-305 which was passed to aid, counsel, assist and protect the small business community. They work closely with other Federal agencies in an attempt to influence their policies to aid small businesses or refrain from injuring them. They also recommend SBA hearings to study certain problems caused by actions of other government agencies. While they may influence policy of other government agencies in the course of their work, they do not influence the policies of their own employing agency.
/4/ Within their own agency, they only have the authority to recommend action which in turn is evaluated through numerous levels of review. It follows that these employees are not management officials in that they do not exercise duties and responsibilities which require or authorize them to formulate, determine or influence the policies of the Agency within the meaning of section 7103(a)(11). Accordingly, the Authority finds that these employees should be included in the bargaining unit.

ORDER

IT IS ORDERED that the unit sought to be clarified be, and it hereby is, clarified by excluding from said unit Raymond D. Marchakitus, Supervisory Economist, GM-0110-15; Alice K. Cullen, Economist, GM-0110-14; John P. Hightower, Computer System Analyst, GM-0334-13; and Robert E. L. Gregg, Computer System Analyst, GM-0334-13; and by including in said unit Maureen Glebes, Economist, GS-0110-14; Robert F. Clairmont, Assistant Advocate, GS-0301-14; and Gerald T. Lawson, Assistant Advocate, GS-0301-14. Issued, Washington, D.C., March 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ The petition initially sought to include the incumbents of 264 positions in AFGE's national consolidated unit. However, as a result of meetings between the parties, at the time the hearing opened, only 16 positions remained in dispute. During the course of the hearing, the parties stipulated that three employees were not supervisors and should be included in the unit. The parties further agreed that six other employees should be removed from consideration herein. The Authority deems such stipulations to be motions to amend the petition which are hereby granted.

/2/ Section 7103(a)(10) 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/ Section 7103(a)(11) 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(.)

/4/ Cf. Office of Personnel Management, 5 FLRA 238, 246-247 (1981) (wherein the Authority held that employees who are not engaged in performing "internal" personnel work relating directly to the personnel operations of their own employing agency, and therefore would not be faced with a conflict of interest between their jobs and union representation if included in the unit, are not engaged in personnel work in other than a purely clerical capacity within the meaning of section 7112(b)(3) of the Statute).