EEOC and National Council of EEOC Locals 216 (Authority decision, August 16, 1982)

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

Plain-English summary

The EEOC and its union disputed whether several positions belonged in the bargaining unit. The Authority excluded five classifications whose incumbents exercised supervisory authority, while keeping the other disputed positions in the unit because their work did not make them management officials or covered personnel-work employees. This was an original unit-clarification petition, with no Regional Director decision under review, so the outcome label is other.

Decision snapshot

• Authority: 5 U.S.C. § 7103(a)(10).
• Outcome: Five classifications excluded; remaining disputed positions kept in unit.
• Key point: Actual duties, including independent supervisory judgment, controlled the unit placement.

Full text (FLRA public release)

[ v09 p973 ]

09:0973(136)CU

The decision of the Authority follows:

9 FLRA No. 136

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Activity

and

NATIONAL COUNCIL OF EEOC LOCALS, 216,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO
Petitioner

Case No. 3-CU-52

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 CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY FINDS: THE NATIONAL COUNCIL OF EEOC
LOCALS, 216, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE)
WAS CERTIFIED ON APRIL 20, 1978 AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR A UNIT OF ALL NON-PROFESSIONAL AND PROFESSIONAL
GENERAL SCHEDULE, SCHEDULE A AND WAGE GRADE EMPLOYEES OF THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION. ESSENTIALLY, AFGE'S PETITION SEEKS
TO CLARIFY THE STATUS OF APPROXIMATELY 108 EMPLOYEES WHO THE ACTIVITY
CONTENDS SHOULD BE EXCLUDED FROM THE BARGAINING UNIT UNDER SECTION
7112(B) OF THE STATUTE ON THE GROUNDS THAT THEY ARE SUPERVISORS,
MANAGEMENT OFFICIALS, OR EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY.

SUPERVISORS /1/

THE AUTHORITY FINDS, IN AGREEMENT WITH THE ACTIVITY, THAT THE
INCUMBENTS IN THE FOLLOWING JOB CLASSIFICATIONS ARE SUPERVISORS WITHIN
THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE: THE INCUMBENT IN THE
JOB CLASSIFICATION LEAD APPEALS OFFICER, GS-930-15, WHO ASSIGNS WORK TO
HIS SUBORDINATES, DISCIPLINES SUBORDINATES AND HAS EFFECTIVELY
RECOMMENDED THE HIRING OF, AND PROMOTIONS FOR, HIS SUBORDINATES; THE
INCUMBENTS IN THE JOB CLASSIFICATION OF GENERAL ATTORNEY (TEAM LEADER),
GS-905-14, WHO ASSIGN WORK TO THEIR SUBORDINATES, DISCIPLINE
SUBORDINATES AND HAVE EFFECTIVELY RECOMMENDED SUBORDINATES FOR
PROMOTIONS; THE INCUMBENTS IN THE JOB CLASSIFICATION OF ATTORNEY
EXAMINER (SENIOR ATTORNEY), GS-905-13, WHO ASSIGN WORK TO THEIR
SUBORDINATES, ADJUST GRIEVANCES, DISCIPLINE SUBORDINATES AND HAVE
EFFECTIVELY RECOMMENDED THE HIRING OF, AND PROMOTIONS FOR, THEIR
SUBORDINATES; THE INCUMBENT IN THE JOB CLASSIFICATION OF PERSONNEL
RESEARCH PSYCHOLOGIST, GS-180-15, WHO ASSIGNS WORK TO SUBORDINATES AND
HAS EFFECTIVELY RECOMMENDED THE HIRING OF, AS WELL AS AWARDS FOR,
SUBORDINATES; AND THE INCUMBENT IN THE JOB CLASSIFICATION OF EQUAL
OPPORTUNITY SPECIALIST, GS-160-14, P.D.H.-0370, WHO ASSIGNS WORK TO
SUBORDINATES, ADJUSTS GRIEVANCES AND HAS EFFECTIVELY RECOMMENDED THE
HIRING OF SUBORDINATES. FURTHER, THE AUTHORITY FINDS THAT THE ABOVE
DUTIES ARE NOT MERELY ROUTINE OR CLERICAL IN NATURE BUT REQUIRE THE
CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT. ACCORDINGLY, THE AUTHORITY
SHALL ORDER THAT THE INCUMBENTS IN THE JOB CLASSIFICATIONS LISTED ABOVE
BE EXCLUDED FROM THE RECOGNIZED BARGAINING UNIT. /2/

MANAGEMENT OFFICIALS /3/

THE AUTHORITY FINDS, IN AGREEMENT WITH THE PETITIONER, THAT THE
INCUMBENTS IN THE JOB CLASSIFICATIONS LISTED IN APPENDIX A ARE NOT
MANAGEMENT OFFICIALS WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE
STATUTE AND SHOULD REMAIN IN THE BARGAINING UNIT. IN THE LEAD CASE OF
DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION OFFICE, 7
FLRA NO. 24(1981), THE AUTHORITY INTERPRETED THE STATUTORY DEFINITION
OF "MANAGEMENT OFFICIAL" TO INCLUDE ONLY 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 INCUMBENTS IN THE JOB
CLASSIFICATIONS LISTED IN APPENDIX A ARE PROFESSIONALS WHOSE ACTIONS
ASSIST IN IMPLEMENTING, AS OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES.
THUS, THE RECORD IS CLEAR THAT THESE INCUMBENTS ARE NOT MANAGEMENT
OFFICIALS IN THAT THEY DO NOT EXERCISE ANY DUTIES AND RESPONSIBILITIES
WHICH REQUIRE OR AUTHORIZE THEM TO FORMULATE, DETERMINE, OR INFLUENCE
THE POLICIES OF THE ACTIVITY WITHIN THE MEANING OF SECTION 7103(A)(11)
OF THE STATUTE AS INTERPRETED BY THE AUTHORITY. ACCORDINGLY, THE
AUTHORITY SHALL ORDER THAT THE INCUMBENTS IN THE JOB CLASSIFICATIONS
LISTED IN APPENDIX A REMAIN IN THE BARGAINING UNIT.

EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A

PURELY CLERICAL CAPACITY

THE AUTHORITY FINDS, IN AGREEMENT WITH THE PETITIONER, THAT THE
INCUMBENTS IN THE JOB CLASSIFICATIONS LISTED IN APPENDIX B ARE NOT
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY WITHIN THE MEANING OF SECTION 7112(B)(3) OF THE
STATUTE AND SHOULD REMAIN IN THE BARGAINING UNIT. THE RECORD
ESTABLISHES THAT THESE EMPLOYEES, WITH THE MINOR EXCEPTIONS DISCUSSED
BELOW, ARE NOT AT ALL INVOLVED IN DOING THE ACTIVITY'S INTERNAL
PERSONNEL WORK BUT PURSUANT TO THE MISSION OF THE ACTIVITY ARE HEARING
COMPLAINTS, AND/OR WRITING OR REVIEWING DECISIONS WHICH AFFECT AGENCIES
OTHER THAN THEIR OWN. THUS, FOR THE REASONS MORE FULLY SET FORTH IN
OFFICE OF PERSONNEL MANAGEMENT, 5 FLRA NO. 30(1981), /4/ THE AUTHORITY
FINDS THAT SUCH EMPLOYEES ARE NOT INVOLVED IN PERSONNEL WORK WITHIN THE
MEANING OF SECTION 7112(B)(3) OF THE STATUTE.

THE INCUMBENTS IN THE JOB CLASSIFICATIONS OF APPEALS OFFICER,
GS-930-11, 12, 13 AND GENERAL ATTORNEY, GS-905-11, 12, 13 LOCATED IN THE
OFFICE OF REVIEW AND APPEALS (ORA), ARE INVOLVED IN THE PROCESSING OF
APPEALS FROM FINAL AGENCY EEO DECISIONS. THEIR DUTIES INCLUDE REVIEW OF
THE INVESTIGATIVE FILE AND THE PARTIES' POSITIONS, EVALUATION OF THE
CASE WITH REGARD TO CASE LAW, STATUTE AND REGULATION, AND THE
PREPARATION OF A PROPOSED DECISION WHICH IS REVIEWED AT SEVERAL LEVELS
BEFORE BEING SIGNED BY THE COMMISSIONERS. IN THE COURSE OF THEIR
DUTIES, THEY MAY ON RARE OCCASION REVIEW DECISIONS PERTAINING TO
INTERNAL EEO COMPLAINTS. THE RECORD INDICATES THAT IN THE NINE-MONTH
PERIOD PRIOR TO THE HEARING, OF THE APPROXIMATELY 1500 CASES REVIEWED BY
THE ORA, 6 INVOLVED INTERNAL COMPLAINTS. THE RECORD FURTHER INDICATES
THAT THE ABOVE INCUMBENTS WERE ASSIGNED THESE CASES SPORADICALLY AND,
WHERE ASSIGNED, THESE CASES REPRESENTED ABOUT 1% OF THAT INDIVIDUAL'S
CASE LOAD. CONSEQUENTLY, THE AUTHORITY FINDS THAT THIS FUNCTION IS DE
MINIMIS AND INSUFFICIENT TO EXCLUDE THE INCUMBENTS INVOLVED FROM THE
BARGAINING UNIT UNDER SECTION 7112(B)(3) OF THE STATUTE. /5/

ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE INCUMBENTS IN THE JOB
CLASSIFICATIONS LISTED IN APPENDIX B REMAIN IN THE BARGAINING UNIT.

ORDER

IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN BE,
AND IT IS HEREBY IS, CLARIFIED BY EXCLUDING FROM SAID UNIT THE FOLLOWING
POSITIONS: LEAD APPEALS OFFICER, GS-930-15; GENERAL ATTORNEY, (TEAM
LEADER), GS-905-14; ATTORNEY EXAMINER (SENIOR ATTORNEY), GS-905-13;
PERSONNEL RESEARCH PSYCHOLOGIST, GS-180-15; AND EQUAL OPPORTUNITY
SPECIALIST, GS-160-14, P.D.H-0370.

FURTHER, IT IS ORDERED THAT ALL OTHER INCUMBENTS IN THE DISPUTED JOB
CLASSIFICATIONS SHALL REMAIN IN THE BARGAINING UNIT.

ISSUED, WASHINGTON, D.C., AUGUST 16, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX A

JOB CLASSIFICATIONS OF INCUMBENTS ALLEGED TO BE MANAGEMENT

OFFICIALS

APPEALS OFFICER, GS-930-13

GENERAL ATTORNEY, GS-905-13

ATTORNEY EXAMINER, GS-905-13

CONGRESSIONAL LIAISON ANALYST, GS-301-13

BUDGET ANALYST, GS-560-13

ATTORNEY ADVISOR (CIVIL RIGHTS), GS-905-14

ATTORNEY ADVISOR (CIVIL RIGHTS), GS-905-13

PROGRAM ANALYST, GS-345-15

COMPUTER SYSTEMS ANALYST, GS-334-14

EQUAL OPPORTUNITY SPECIALIST, GS-160-14

EQUAL OPPORTUNITY SPECIALIST, GS-160-13

APPENDIX B

JOB CLASSIFICATIONS OF INCUMBENTS ALLEGED TO BE EMPLOYEES

ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY

CLERICAL CAPACITY

APPEALS OFFICER, GS-930-11, 12, 13

GENERAL ATTORNEY, GS-905-11, 12, 13

ATTORNEY EXAMINER, GS-905-13

GENERAL ATTORNEY (FULL JUNIOR HEARING OFFICER), GS-905-12

GENERAL ATTORNEY (JUNIOR HEARING OFFICER), GS-905-11

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

/1/ 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 . . . .

/2/ IN VIEW OF THIS DETERMINATION, THE AUTHORITY FINDS IT UNNECESSARY
TO PASS UPON THE ACTIVITY'S ASSERTION THAT THESE INCUMBENTS SHOULD ALSO
BE EXCLUDED FROM THE RECOGNIZED BARGAINING UNIT ON THE BASIS THAT THEY
ARE MANAGEMENT OFFICIALS OR EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY. ACCORDINGLY, THESE JOB
CLASSIFICATIONS HAVE NOT BEEN LISTED IN APPENDIX A OR B.

/3/ 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 . . . .

/4/ BRIEFLY STATED, THE AUTHORITY HELD IN THIS CASE THAT SECTION
7112(B)(3) OF THE STATUTE APPLIES ONLY TO EMPLOYEES WHO PERFORM
"INTERNAL" PERSONNEL WORK, I.E., WORK RELATING DIRECTLY TO THE PERSONNEL
OPERATIONS OF THE AGENCY EMPLOYING THEM.

/5/ THE DECISION HEREIN, BASED ON RECORD TESTIMONY AS TO THE WORK
ACTUALLY PERFORMED BY THE INCUMBENTS, IS CLEARLY DISTINGUISHABLE FROM
OUR DECISION DISMISSING THE PETITION IN UNITED STATES DEPARTMENT OF
LABOR, OFFICE OF THE SOLICITOR, REGION III, 8 FLRA NO. 68(1982). IN
THAT CASE, IT WAS CLEAR THAT THE WORK IN QUESTION WOULD BE PERFORMED BY
THE EMPLOYEE INVOLVED AND THE RECORD CONTAINED NO EVIDENCE THAT THAT
FUNCTION WAS MERELY DE MINIMIS.