VA Regional Office Portland and NFFE Local 1974 (Authority decision, August 4, 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 Portland VA office and NFFE Local 1974 filed competing unit-clarification petitions. The Authority excluded medical officers and vocational rehabilitation specialists as professionals, three loan-division chiefs as supervisors, and a personnel clerk as a confidential labor-relations employee. This was an original unit determination with no Regional Director decision under review, so the outcome label is other.

Decision snapshot

• Authority: 5 U.S.C. § 7103(a)(15).
• Outcome: Six classifications excluded from the nonprofessional unit.
• Key point: Professional, supervisory, and confidential labor-relations roles fell outside this unit.

Full text (FLRA public release)

[ v09 p804 ]

09:0804(101)CU

The decision of the Authority follows:

9 FLRA No. 101

VETERANS ADMINISTRATION,
REGIONAL OFFICE,
PORTLAND, OREGON
Activity

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1974
Labor Organization/Petitioner

Case No. 9-CU-30

VETERANS ADMINISTRATION,
REGIONAL OFFICE,
PORTLAND, OREGON
Activity/Petitioner

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1974
Labor Organization

Case No. 9-CU-33

DECISION AND ORDER CLARIFYING UNIT

UPON PETITIONS 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 THESE CASES, THE AUTHORITY FINDS: THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1974 (THE UNION) SEEKS
TO CLARIFY ITS EXISTING CERTIFIED UNIT /1/ BY INCLUDING INCUMBENTS IN
VARIOUS JOB CLASSIFICATIONS, AND THE VETERANS ADMINISTRATION, REGIONAL
OFFICE, PORTLAND, OREGON (THE ACTIVITY) SEEKS TO CLARIFY THE UNIT BY
EXCLUDING THE INCUMBENTS IN THESE CLASSIFICATIONS ON THE BASIS THAT THEY
ARE EITHER PROFESSIONAL EMPLOYEES, SUPERVISORS OR A CONFIDENTIAL
EMPLOYEE AND/OR AN EMPLOYEE ENGAGED IN PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY.

PROFESSIONAL EMPLOYEES /2/

VOCATIONAL REHABILITATION SPECIALIST, GS-1715-11

IN THE AUTHORITY'S VIEW, THE INCUMBENTS IN THIS JOB CLASSIFICATION,
WHOSE DUTIES AND RESPONSIBILITIES REQUIRE NO LESS THAN A COLLEGE DEGREE
PLUS EITHER A MASTER'S DEGREE IN REHABILITATION COUNSELING OR A RELATED
FIELD OR ONE YEAR'S EXPERIENCE AS A VOCATIONAL REHABILITATION SPECIALIST
(VRS) AND 18 SEMESTER HOURS BEYOND THE BACCALAUREATE DEGREE, AND
ADDITIONALLY REQUIRE THE CONSISTENT EXERCISE OF DISCRETION AND JUDGMENT
IN DETERMINING WHICH EMPLOYEES NEED REHABILITATION AND THE EXTENT OF
THAT CONTINUED NEED, ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF
SECTION 1703(A)(15) OF THE STATUTE. /3/ ACCORDINGLY, THE AUTHORITY
SHALL EXCLUDE THE INCUMBENTS IN THIS CLASSIFICATION FROM THE BARGAINING
UNIT.

MEDICAL OFFICER (DISABILITY EVALUATION), GS-602-12

IN THE AUTHORITY'S VIEW, THE INCUMBENTS IN THIS JOB CLASSIFICATION
ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(15) OF
THE STATUTE. THE INCUMBENTS MUST HAVE ATTAINED THE DEGREE OF DOCTOR OF
MEDICINE FROM A MEDICAL SCHOOL APPROVED BY THE COUNCIL ON MEDICAL
EDUCATION AND HOSPITALS, AMERICAN MEDICAL ASSOCIATION, OR A COMPARABLE
AND EQUIVALENT DEGREE, AND ALSO MUST HAVE SUCCESSFULLY COMPLETED AT
LEAST ONE YEAR OF APPROVED RESIDENCY TRAINING. THEIR DUTIES INCLUDE
MAKING DETERMINATIONS WITH REGARD TO APPLICANTS' BASIC ELIGIBILITY FOR
DISABILITY COMPENSATION, THE ADEQUACY AND SUFFICIENCY OF ALL PERTINENT
FACTS BEARING ON THE PERFORMANCE OF PHYSICAL EXAMINATIONS. IN THESE
CIRCUMSTANCES, THE AUTHORITY SHALL ORDER THAT THE INCUMBENTS IN THIS
CLASSIFICATION BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT.

SUPERVISORS /4/

SECTION CHIEFS, LOAN GUARANTEE DIVISION: CHIEF, CONSTRUCTION AND
VALUATION SECTION, GS-1171-12; CHIEF, LOAN SERVICING, CLAIMS AND
PROPERTY MANAGEMENT SECTION (REALTY SPECIALIST), GS-1170-11; AND CHIEF,
LOAN PROCESSING SECTION (SUPERVISORY LOAN SPECIALIST/REALTY), GS-1165-11

IN THE AUTHORITY'S VIEW, THE INCUMBENTS IN THESE POSITIONS ARE
SUPERVISORS WITHIN THE MEANING OF THE STATUTE. ALL THREE ARE IN CHARGE
OF AT LEAST ONE SUBORDINATE EMPLOYEE, ESTABLISH THE PRIORITY OF THEIR
WORK, ASSIGN AND REVIEW THEIR WORK, COUNSEL THEM, GRANT THEIR LEAVE,
HAVE SELECTED SUCCESSFUL CANDIDATES AMONG THOSE ELIGIBLE FOR POSITIONS
UNDER THEIR DIRECTION, AND HAVE MADE EFFECTIVE RECOMMENDATIONS WITH
REGARD TO PROMOTIONS OR INCREASES IN PAY FOR SUBORDINATES. ALL HAVE
CONSISTENTLY EXERCISED INDEPENDENT JUDGMENT WITH REGARD TO THE ABOVE
AND, THEREFORE, ARE SUPERVISORS WITHIN THE MEANING OF SECTION
7103(A)(10) OF THE STATUTE. ACCORDINGLY, THE AUTHORITY SHALL EXCLUDE
THEM FROM THE BARGAINING UNIT.

THE CONFIDENTIAL EMPLOYEE /5/

THE INCUMBENT IN THE POSITION OF PERSONNEL CLERK (TYPING), PERSONNEL
DIVISION, GS-203-5, IS THE PRINCIPAL CLERICAL ASSISTANT TO THE PERSONNEL
OFFICER WHO IS ALSO THE LABOR RELATIONS OFFICER IN CHARGE OF ALL THE
ACTIVITY'S LABOR RELATIONS; WHO IS DIRECTLY INVOLVED IN THE DAILY
UNION/MANAGEMENT ACTIVITIES WITH REGARD TO GRIEVANCES, APPEALS AND
COMPLAINTS; AND WHO IS THE PRINCIPAL MEMBER OF THE MANAGEMENT TEAM THAT
WAS INVOLVED IN CONTRACT NEGOTIATIONS WITH THE UNION AT THE TIME OF THE
INSTANT HEARING. THE INCUMBENT IS PRIVY TO, AND TYPES AND MAINTAINS
MATERIALS WITH REGARD TO, CONFIDENTIAL LABOR RELATIONS MATTERS.

THE AUTHORITY CONCLUDES THAT THE INCUMBENT ACTS IN A CONFIDENTIAL
CAPACITY TO AN OFFICIAL INVOLVED IN THE FORMULATION AND EFFECTUATION OF
THE ACTIVITY'S LABOR RELATIONS POLICIES AND, ACCORDINGLY, SHALL EXCLUDE
HERE FROM THE BARGAINING UNIT. U.S. ARMY COMMUNICATIONS SYSTEMS AGENCY,
FORT MONMOUTH, NEW JERSEY, 4 FLRA NO. 83(1980). /6/

ORDER

IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED, CONSISTING
OF ALL NONPROFESSIONAL EMPLOYEES OF THE VETERANS ADMINISTRATION REGIONAL
OFFICE, PORTLAND, OREGON, FOR WHICH THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1974, WAS ORIGINALLY CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE ON MAY 2, 1980, BE, AND IT HEREBY IS, CLARIFIED BY
EXCLUDING THE POSITIONS OF: MEDICAL OFFICER (DISABILITY EVALUATION),
GS-602-12; VOCATIONAL REHABILITATION SPECIALIST, GS-1715-11; CHIEF,
CONSTRUCTION AND VALUATION SECTION, GS-1171-12; CHIEF, LOAN SERVICING,
CLAIMS AND PROPERTY MANAGEMENT SECTION (REALTY SPECIALIST), GS-1170-11;
CHIEF, LOAN PROCESSING SECTION (SUPERVISORY LOAN SPECIALIST/REALTY),
GS-1165-11; AND PERSONNEL CLERK (TYPING), PERSONNEL DIVISION, GS-203-5.

ISSUED, WASHINGTON, D.C., AUGUST 4, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ THE LABOR ORGANIZATION WAS CERTIFIED ON MAY 2, 1980, AS THE
EXCLUSIVE REPRESENTATIVE OF A UNIT CONSISTING OF: ALL NONPROFESSIONAL
EMPLOYEES OF THE VETERANS ADMINISTRATION REGIONAL OFFICE, PORTLAND,
OREGON, EXCLUDING ALL PROFESSIONAL EMPLOYEES; MANAGEMENT OFFICIALS,
SUPERVISORS; AND EMPLOYEES DESCRIBED IN 5USC 7112(B)(2), (3), (4), (6)
AND (7).

/2/ 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 (A)(I) OF THIS PARAGRAPH AND IS
PERFORMING RELATED WORK UNDER

APPROPRIATE DISCRETION OR GUIDANCE TO QUALIFY THE EMPLOYEE AS A
PROFESSIONAL EMPLOYEE

DESCRIBED IN SUBPARAGRAPH (A) OF THIS PARAGRAPH(.)

/3/ CF. DEFENSE MAPPING AGENCY, INTER-AMERICAN GEODETIC SURVEY, 5
FLRA NO. 85(1981) (INCUMBENTS IN THE JOB OF INTERPRETER, FOR WHICH A
COLLEGE DEGREE IS NOT REQUIRED, HELD NOT TO BE "PROFESSIONAL EMPLOYEES"
WITHIN THE MEANING OF SECTION 7103(A)(15)(A)(I) OF THE STATUTE).

/4/ 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(.)

/5/ SECTION 7103(A)(13) OF THE STATUTE DEFINES A "CONFIDENTIAL
EMPLOYEE" AS:

. . . AN EMPLOYEE WHO ACTS IN A CONFIDENTIAL CAPACITY WITH RESPECT TO
AN INDIVIDUAL WHO

FORMULATES OR EFFECTUATES MANAGEMENT POLICIES IN THE FIELD OF
LABOR-MANAGEMENT RELATIONS(.)

/6/ IN VIEW OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY TO
PASS UPON THE ACTIVITY'S FURTHER CONTENTION THAT THE INCUMBENT OF THIS
POSITION IS ALSO AN EMPLOYEE ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY.