The Environmental Division was formerly named the Natural Resources Division. FEDERAL LABOR RELATIONS AUTHORITY
CHICAGO REGION
U.S. DEPARTMENT OF THE ARMY
DIRECTORATE OF PUBLIC WORKS
FORT BRAGG, NORTH CAROLINA
-Activity-
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1770, AFL-CIO
Exclusive Representative
Case No. WA-RP-06-0063
DECISION AND ORDER CLARIFYING UNIT
I. Statement of the Case
This case is before the Region based on a petition filed by the American Federation of Government Employees, Local 1770, AFL-CIO (the Union) under section 7111(b)(2) of the Federal Service Labor-Management Relations Statute (the Statute) and section 2422.1(b) of the Rules and Regulations of the Federal Labor Relations Authority. The Union's petition seeks to clarify its consolidated bargaining unit of nonprofessional employees at the U.S. Department of the Army, Fort Bragg, North Carolina (the Activity or Fort Bragg) by including in the unit the Fire Management Specialist, GS-0401-11, position encumbered by John C. Ward.
The Activity contends that Ward is excluded from the unit because he is a management official within the meaning of section 7103(a)(11) of the Statute and a professional employee within the meaning of section 7103(a)(15) of the Statute.
A hearing in this matter 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 affirmed. Upon consideration of the entire record in this case, including briefs filed by the Activity and the Union, I find and conclude as follows:
II. Findings
The Union's existing consolidated unit of nonprofessional employees is currently described as follows:
INCLUDED: All civilian employees, including guards at Fort Bragg, North Carolina who are served by the Civilian Personnel Advisory Center at Fort Bragg, North Carolina and paid from appropriated funds, including non-professional employees assigned to the following organizations at Fort Bragg, North Carolina: United States Forces Command and its subordinate units; Womack Army Medical Center; U.S. Army Dental Activity; 4 th Brigade 87 th Division (189 th Infantry Brigade); Airborne and Special Operations Test Directorate; United States Special Operations Command, John F. Kennedy Special Warfare Center and School; United States Army Parachute Team; Test, Measurement, Diagnostic, Equipment Support Center; United States Logistics Assistance Office; and the Security Assistance Training Management Office.
EXCLUDED: All professional employees, management officials, supervisors and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).
INCLUDED: All non-professional employees at Fort Bragg, North Carolina serviced by the Civilian Personnel Advisory Center at Fort Bragg, North Carolina and paid from appropriated funds that are employed by the U.S. Army Installation Management Agency, Fort Bragg, North Carolina.
EXCLUDED: All professional employees, management officials, supervisors and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).
INCLUDED: All non-professional employees at Fort Bragg, North Carolina who are serviced by the Civilian Personnel Advisory Center at Fort Bragg, North Carolina and paid from appropriated funds that are employed by the U.S. Army Contracting Agency, Fort Bragg, North Ca rolina.
EXCLUDED: All professional employees, management officials, supervisors and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).
(Case No. WA-RP-05-0062)
The Fire Management Specialist, GS-0401-11, position encumbered by Ward is assigned to the Forestry Branch of the Environmental Division ' of the Directorate of Public Works at Fort
The Environmental Division was formerly named the Natural Resources Division.
Bragg, North Carolina. Fort Bragg is one of the largest Army bases in the United States, comprising some 162,000 acres (251 square miles). The Forestry Branch employs twelve people and its activities are divided between forest management, fire management, and woodland access trail maintenance. The fire management component of the Forestry Branch's mission involves preparing an annual prescribed burning plan; writing specific burning prescriptions for particular areas of the installation; overseeing and conducting prescribed burning activities; and containing and suppressing wildfires.
Ward has been an employee of Fort Bragg since 1981, joining Fort Bragg with a Bachelor of Arts (BA) degree in biology he earned in 1979. Ward's first job at Fort Bragg was as a Forestry Technician. He then became an Eauipment Operator and Equipment Leader, subsequently working as a Forestry Technician again. While working as a GS-09 Forestry Technician, Ward was chosen for the GS-0401-11 Fire Management Specialist position on June 29, 2003. There is only one such position at Fort Bragg. Since Ward was promoted into the Fire Management Specialist position, he has attended about five training courses - about one a year - at various fire academies, but none have focused exclusively on the field of biology.
About one third of Fort Bragg's forested land and grassland (approximately 60, 000 acres) is intentionally burned every year in accordance with an annually developed prescribed burn plan that is developed by Ward, with input from various other Fort Bragg entities, and approved by various officials above the Forestry Branch, to include the Fort Bragg Garrison Commander. This three year cycle - where one third of Fort Bragg is intentionally burned each year - was instituted long before Ward encumbered the GS-0401-11 Fire Management Specialist position. The purpose of prescribed burning is to prevent uncontrolled forest fires, protect endangered species, and to maintain the ecosystem. Prescribed burns begin in January and end in June each year, and the burns are distinguished as growing season (spring) prescribed burns and dormant season (winter) prescribed burns. As early as 1973, Fort Bragg began conducting dormant season prescribed burns, and in 1991 the installation began prescribed burning during growing season. Unintentional wildfires, usually caused by military training exercises, frequently occur throughout the year and are suppressed by the Forestry Branch. Up to an additional 10% of Fort Bragg 's land may be burned by unintended wildfires each year, beyond the 33% that is intentionally burned.
Fort Bragg is divided into hundreds of fire management "blocks" that are identified on maps used by the Forestry Branch. Each fire management block varies in size from 10 to 200 acres and has either man-made or natural boundaries, usually about twenty feet wide. Each annual
prescribed burn plan is reduced to a map, showing which of these blocks will he burned or not
burned at all during the year. An annual implementation memo accompanies each prescribed burn plan map. The implementation memo has various levels of concurrence, including the Director of Public Works, Director of Plans, Training and Mobilization, the Staff Judge Advocate, Preventative Medicine, and the Public Affairs Office. Since about one third of the installation is burned each year, the map for every third year is used as a template, with changes made to the maps each year based on development or construction on the base, combined with other changes in deciding where to burn. Fort Bragg's prescribed burn program is on its third, three-year cycle.
As the lead person in developing the annual prescribed burn plan, Ward must coordinate with other entities on the installation before the burn plan is finalized, to ensure the burning does not negatively affect other organizations' operations. After consulting with various entities at Fort Bragg, Ward makes the determination as to what blocks will be burned but his decision must be ultimately approved by multiple levels of supervision, including his supervisor within the Forestry Branch, the Chief of the Natural Resources (Environmental) Division, the Directorate of Public Works, and the Garrison Commander. If part of Ward's prescribed burn plan for a particular fiscal year is overruled, it likely would be overruled based on knowledge by Ward's supervisors of the potential negative impact of burning on other Fort Bragg organizations. Ward testified that his decision to bum or not burn a block could be overruled, but that he could not think of a case where this has ha ppened. Ward's su pervisor, John Stancar, testified that while Ward basically decides what fire management blocks will be burned during a given fiscal year, Ward can be overruled as to how and when those blocks are burned - specifically whether the burns will be dormant or growing season prescribed burns. The creation of the annual prescribed burn plan map occurs during the June to January timeframe. Ward does not generate the annual burn plan map himself. Rather, a GS-07 Forestry Technician who is versed in a particular computer program creates the map for Ward.
Once the overall annual prescribed burn plan is approved by the Fort Bragg Garrison Commander, the prescribed burns of particular blocks of land occur following an individualized written prescription authorizing particular fire management blocks to be burned at a particular time and in a particular manner. Ward drafts the prescriptions for burning the various blocks of land and provides the written prescriptions for burning the various blocks to the "burn boss." Ward exercises discretion when drafting the prescribed burn plans for particular blocks using his technical knowledge of fire management. At times, Ward's supervisor will learn of reasons why a block should not be burned at a particular time, and pass this information on to Ward. Stancar provided an example of installation officials planning aerial photography of the base on a particular day. Upon realizing that smoke generated from scheduled prescribed burns would negatively affect the aerial photographs, he told Ward to cease his scheduled prescribed bum for that day. Old written prescriptions for burning various blocks are kept and modified, as necessary, when drafting current prescribed burn plans for the same fire management blocks.
A bum boss manages usually three crews of about four employees per crew, who actually conduct the prescribed bum. Ward acts as a burn boss about fifty percent of the time. Typically, Ward will organize the crews for the bum boss. While Ward is not a supervisor, he does provide some direction to the crews. Factors Ward uses when drafting prescriptions for burning various
blocks include wind direction time of rear , smoke mana g ement trainin g rennirements
manpower availability, and fuel load. Fuel load refers to combustible material that will be burned, such as fallen pine needles, straw, or branches of trees. Ward approves the various methods by which the burn will occur but the burn boss can choose which of the approved methods to use. The burn boss also has the authority to cancel a .prescribed bum based on changes in weather. The various burning techniques are well established and include setting backing, flanking, aerial, spot or strip fires. Ward did not create any of these standard fire management techniques. Ward or one of his co-workers will do post-burn evaluations, to determine if the burn was successful.
Ward and other members of the Fort Bragg Forestry Branch attend working group meetings organized at the state and local levels related to fire management. Ward testified that he alone represents Fort Bragg on two other groups - the Sandhills Fire Council, which is a volunteer organization that advocates prescribed burning; and a group called the Fire Environmental Working Group. He also testified that since the State of North Carolina regulates smoke emissions from prescribed burning programs, he must coordinate with the State when burning at particular times and in particular locations.
Prior to encumbering the position at issue, Ward led the effort to update and modify an existing memorandum of agreement with the North Carolina Division of Forestry that established mutual-aid p rocedures for Fort Bragg and North Carolina firefighting assets when suppressing fires that traverse the boundaries of Fort Bragg. Ward testified that he modified the memorandum of agreement and then had it signed by various Fort Bragg officials, including himself, the Chief of Natural Resources Division of Fort Bragg, the Director of Public Works of Fort Bragg, and the Garrison Commander of Fort Bragg on November 15, 2002. In 2002, Ward developed a similar mutual-aid agreement with the USDA, Forest Service, North Carolina for forest firefighting assistance. This mutual-aid agreement was also subject to several layers of review and approval including the Garrison Commander. Ward also testified that he is working on an interagency support agreement with the Nature Conservancy, but that the draft agreement was being reviewed by Fort Bragg's Staff Judge Advocate office at the time of the hearing. When asked whether Ward has the final say to supervisors and commanders above him about the content of such interagency agreements, Stancar testified that such agreements must go through a chain of review.
Ward testified that before being hired as the GS-11 Fire Management Specialist, he acted as the Fire Management Officer while he was a GS-09 and did everything he is doing now as a GS-11. Ward provided a May 1998 standard operating procedure (SOP) document that he wrote as a GS-09 entitled Prescribed Burning Preparation and testified that the Forestry Branch operates under about four total SOP's or regulations related to firefighting.
Ward further testified that he drafted a February 19, 2004 memo for the Natural Resources Division entitled Wildland Fire Management Standards, which was edited, approved and signed by the Chief of the Natural Resources (Environmental) Division. The February 18, 2004 memo established a physical endurance test for fire crew members, as such standards or minimum qualifications for employees involved in bums was required by the Department of the Army's Army Environmental Center, an Army organization that provides environmental guidance to all
Army installations. Ward set the standards for the physical endurance test after reviewing the
more stringent standards required to fight fires in the western United States, and after receiving direction from the Army Environmental Center that some type of physical test needed to be instituted for workers working on burns. Ward's implementation of the physical endurance test was done in consultation with his supervisor and the physical endurance standards apply to those employees participating in prescribed burning or wildfire containment activities.
Stancar testified that Ward developed a call-back list to identify Forestry Branch employees who would be called after normal duty hours in the case of a wildfire and that Ward is one of those employees that can be called after duty hours. Stancar further testified that if Ward were called
back to assess a wildfire, he alone could make the determination of whether to suppress it or to let it bum. Ward also periodically trains employees on prescribed burning or fire suppression techniques and ensures that employees who work on fires have been through the proper courses, keeping records of who has been to what course.
Stancar testified that a college degree would be helpful in performing the Fire Management Specialist position, because of the involvement and interaction with upper level management, the public and other groups. Ward testified that he believed that his on-the-job experience, and not his education background, has allowed him to develop the annual prescription bum plan. Ward further testified that he does not attend management-only meetings, but that he did consider the Sandhills Wildfire Counsel gatherings , which occur once every two months, to be mainly comprised of managers. Stancar testified that Ward attends the Sandhills Wildfire Counsel meetings as the technical expert from Fort Bragg.
M. Analysis and Conclusions
Under the Authority's regulations governing representation proceedings, the parties have the opportunity to make factual and legal arguments on the record as to why particular employees should be included in or excluded from a bargaining unit. In deciding whether employees occupying a certain position should be excluded from a bargaining unit, the Authority makes its determination on a case-by-case basis by applying the statutory criteria to the record developed in each case.
The Authority bases bargaining unit eligibility determinations not on job titles or position descriptions but on the type and nature of the work actually performed by the employee. United States Dep 't of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1377 (1990)
The Management Official Exclusion
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". In Dep 't of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172, 177 (1981), the Authority held that the definition of a management official includes those employees 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.
The Authority has reserved the term "management official" for a discrete category of employees whose responsibilities extend beyond that of a professional or technical expert rendering resource information or recommendations, and/or employees who are authorized to draft or author agency rules, regulations or directives subject to higher-level review. See, e.g., United States Dep't of Energy, Headquarters, Wash., D. C., 40 FLRA 264, 271-273 (1991) (attorneys who made independent and unreviewed decisions concerning energy matters and who had full signatory authority to bind the agency were management officials); United States Dep't of Labor,
Mine Safety and Health Admin., Wash., D.C., 37 FLRA 1151 (1990)(highly trained employees who provided advice and recommendations concerning their area of expertise not management officials); Adjutant General of New Hampshire, State Military Reservation, Concord, NH., 157th Air Refueling Group, New Hampshire Nat'l Guard, 13 FLRA 88 (1983) (employees who established and promulgated policies, regulations and operational procedures for the agency were management officials).
Applying the criteria of section 7103(a)(11) and Authority precedent to the record evidence, I find and conclude that the Ward is not a management official as defined by the Statute. The record did not establish that Ward's actual duties and responsibilities require or authorize him to formulate ; determine ; or influence the policies of Fort Bragg.
The Activity contends that Ward is a management official because he develops the annual burn plan and determines which areas are to be burned each year. While Ward initially selects what areas will be burned, his role is that of a technical expert that is effectuating the already decided-upon policy of burning portions of Fort Bragg every year. The annual burn policy was created and decided upon well-before Ward was promoted into his current position. Concerning the annual burn plan, such reflects the long-standing policy determination of conducting burns every year as apart of the overall management of the Fort Bragg wildlife and forests. In addition, the annual burn plan that Ward develops, again based on his technical knowledge, is reviewed and approved by up to eight organizational levels or entities, including the Forestry Branch, the Natural Resources (Environmental) Division, the Director of Public Works, the Director of Plans, Training and Mobilization, the Preventative Medicine Office, the Public Affairs Office, the Staff Judge Advocate, and the Fort Bragg Garrison Commander. Although Ward's recommendations as to what blocks will be burned are not normally overruled, his recommendations can be and have been overturned. Forestry Branch Chief Stancar testified that on one recent occasion, he overruled Ward's recommendation on how to burn particular fire management blocks when reviewing a recent fiscal year prescribed burn plan with Ward and determining that certain areas would best be burned in the winter months given the undesirable impact on painted markings on trees should they be burned during the spring and summer.
As for Ward's participation in various interagency meetings or work groups, his role is that of a technical expert or resource person. The same holds true with respect to Ward's work on the mutual-aid agreements for forest firefighting. The mutual-aid agreements were subject to several layers of review and approval. There was no indication that Ward had any authority to independently bind Fort Bragg to any plan or course of action.
The Activity also argues that Ward is a management official because he created the physical endurance test for Natural Resources (Environmental) Division employees who are involved in prescribed burn or wildfire suppression activities. While the record evidence establishes that Ward selected the physical fitness standards for affected employees based on his review of existing standards, the evidence also confirms that Ward's selection of the physical fitness standards was essentially a recommendation to his supervisor and the Chief of the Natural Resources Division, as it was the Chief of the Natural Resources Division who ultimately signed the February 2004 memo approving the physical fitness standards. There was no showing that
Ward's role in this project or any other assignment involved Ward making independent and unreviewed decisions on agency policy matters.
In sum, Ward is a knowledgeable resource person with expertise in fire management whose actions assist in implementing, as opposed to formulating, influencing or determining, the policies of Fort Bragg. Accordingly, Ward is not a management official within the meaning of section 7103(a)(11) of the Statute. National Credit Union Administration, 59 FLRA 858, 861-863 (2004).
The Professional Employee Exclusion
Section 7103(a)(15) of the Statute defines a professional employee as follows: (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 direction or guidance to qualify the employee as a
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In applying this definition, the Authority has customarily assessed whether the position in question requires advanced knowledge of a type that is usually acquired in an institution of
higher learning. See, e.g., United States Dep 't of Homeland Security, Bureau of Customs and
Border Protection, 61 FLRA 485, 492-93 (2006)(Customs and Border Protection); United States Attorneys Office for the Dist. of Columbia, 37 FLRA 1077, 1082 (1990); Veterans Admin., Regional Office, Portland , Ore. , 9 FLRA 804, 805-06 (1982). The Authority has noted, however, that a college degree is not necessarily required for an employee to be considered a professional. See United States Attorneys Office for the Dist. of Columbia, 37 FLRA at 1082. Cf.
Mass. Army Nat? Guard, TAGO, Nat'l Guard Bu., Dep't of Defense, 8 FLRA 711 (1982). The Authority has also considered the extent to which performance of the job involves the exercise of discretion and judgment, as well as whether the nature of the work is intellectual and varied, as opposed to routine mental, manual, or physical work. See, e.g., 934th Tactical Airlift Group (AFRES), Minneapolis-St. Paul Int'l Airport, Minneapolis, Minn., 13 FLRA 549 (1983); Regional Office, 9 FLRA at 805-06.
The Activity argues that Ward qualifies as a professional employee as his position falls within the GS-0401 General Biological Science Series which OPM has classified as a professional series. The Activity further contends that Ward has a BA in Biology and that his work is
intellectual and varied in character.
The determination of whether an employee is a professional employee under the Statute is based on an examination of the character of the work performed by the employee against the standards specified in section 7103(a)(15). Professional status under the Statute is not based on or determined by OPM classification standards. Customs and Border Protection, 61 FLRA at 493; see also Standard Oil Co., 107 NLRB 1524, n. 8 (1954).
Applying the criteria specified in section 7103(a)(15) and Authority precedent to the record evidence, I find and conclude that Ward is not a professional employee under the Statute. The record did not establish that work performed by Ward requires knowledge of an advanced type, requires the consistent exercise of discretion and judgment, and is predominately intellectual and varied in character.
Although Ward has a BA in biology, the record did not establish that this degree or any other knowledge of an advanced type was required to properly perform the duties of the Fire Management Specialist, GS-0401-11, position. Ward testified during the hearing that he believed that his on the job experience, and not his education background, allowed him to develop the annual prescription burn plans. Furthermore, while Stancar testified that a college degree would be helpful in performing the Fire Management Specialist position, he did not testify or emphasize that such educational requirements were necessary to perform the duties and responsibilities of the job. While Ward exercise some discretion and judgment, the record did not show that his work required the consistent exercise of discretion and independent judgment. The annual bum plan is a pre-existing policy and the fire burn techniques and procedures are well-established and standardized. Moreover, the work of the Fire Management Specialist, while important to the operation of the Activity's fire management program, is not predominately intellectual and varied in character. In this regard, Ward testified that he spends half of his time involved in manual and physical activities. The remainder of Ward's time is mainly spent on preparation and coordination of the annual fire burn plan which involves routine and technical work as opposed to an intellectual endeavor.
Accordingly, Ward is not a professional employee within the meaning of section 7103(a)(15) of the Statute.
In view of the above findings and conclusions, it is ordered that the Union's existing consolidated unit of Agency employees is clarified to include the position of Fire Management Specialist, GS-0401-11, currently encumbered by John C. Ward.
Under the provisions of section 2422.31 of the Authority's Regulations, a party may file an application for review of this Decision and Order with the Federal Labor Relations Authority within sixty (60) days. The contents of, and grounds for, an application for review are set forth in section 2422.31(b) and (c) of the Authority's Regulations.
The application for review should be addressed to the Director, Case Control Office, Federal Labor Relations Authority, Docket Room, Suite 201, 1400 K Street, N.W, Washington, D.C. 20424-0001 , and must be filed on or before August 14, 2007.
Documents hand-delivered for filing must be presented in the Authority's Docket Room not later than 5 p.m. to be accepted for filing on that day.
Peter A. Sutton, Regional Director Chicago Regional Office
Federal Labor Relations Authority 55 W. Monroe, Suite 1150
Chicago, Illinois 60603-9729
Dated: June 15, 2007
CERTIFICATE OF SERVICE
I certify that copies of the Decision and Order Clarifying Unit in WA-RP-06-0063 have this day been sent to the following parties:
Michael J. Snider, Esq. Jacob Y. Statman, Esq. Snider & Associates, LLC 104 Church Lane, Suite 201
Baltimore , MD 21208 (Regular Mail)
Paul A. Raaf, Attorney
Office of the Staff Judge Advocate
HQ, XVIII Airborne Corps & Fort Bragg ATTN: AFZA-JA-V
2175 Reilly Rd, Stop A
Fort Bragg, NC 28310-5000 (Regular Mail)
Case Control Office
Federal Labor Relations Authority
Docket Room, Suite 201
1400 K Street, NW
Washington, D.C. 20424-0001 (Regular Mail)
Colleen Duffy Kiko, General Counsel
Federal Labor Relations Authority
1400 K Street, NW, 2nd Floor
Washington, D.C. 20424-0001 (Regular Mail)
Inez Thomas, Office Manager Dated: June 15, 2007