32:1255(170)CU - - Treasury, Office of Chief Counsel and NTEU - - 1988 FLRAdec RP - - v32 p1255

[ v32 p1255 ]
The decision of the Authority follows:

32 FLRA No. 170











Labor Organization/Petitioner

Case No. 3-CU-80010


I. Statement of the Case

This case is before the Authority on an application filed by the Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Regional Director's finding in his Decision and Order on Petition for Clarification of Unit that Senior Technical Advisor Vincent G. Cardella should be included in the certified bargaining unit. The Regional Director found, among other things, that Cardella is not a supervisor within the meaning of section 7103(a)(10) of the Federal Service Labor-Management Relations Statute (the Statute). The application seeks review of only that finding.

For the reasons discussed below, we deny the application for review.

II. Regional Director's Decision

On March 3, 1987, the National Treasury Employees Union (NTEU) was certified as the exclusive representative of a unit of all professional and nonprofessional employees of the Activity. NTEU filed a petition seeking to clarify the bargaining unit to include Senior Technical Advisor Cardella and another individual whose unit status is not at issue in this application for review.

The Regional Director found that Cardella is one of two Technical Advisors in the Office of the Associate Director, Individual Tax Division of the Activity. This Office has the responsibility for issuing letter rulings to taxpayers who request them, providing technical advice to field offices based on requests from taxpayers or field offices, and preparing revenue rulings for publication by the Internal Revenue Service. The letter rulings, technical advice, and revenue rulings are prepared under the Associate Director's supervision by five branches, each of which has a subject matter responsibility.

Cardella performs a variety of technical duties under the general direction of the Associate Director and his Deputy. The Regional Director found that in the performance of these duties Cardella does not possess any of the requisite indicia of supervisory authority set forth in section 7103(a)(10) of the Statute. The Activity seeks review only of the Regional Director's findings concerning Cardella's duty in performing a quality review function concerning certain outgoing correspondence from the branches and his duty in assigning some incoming case correspondence to the branches.

Regarding Cardella's quality review duties, the Regional Director found that on a random basis Cardella performs a quality review of outgoing correspondence from the Associate Director's Office. The Regional Director found that this correspondence is "prepared by an attorney and approved by a Branch Chief, for compliance with procedures for technical accuracy and for compliance with procedures for timeliness [and that] Cardella can either clear the document for mailing or send it back to the branch for reconsideration, if the answer given is not technically correct, based on his analysis of applicable legal authority and the Service's position." Regional Director's Decision at 2-3. The Regional Director further found that Cardella "has never had occasion to alert his superiors of any ongoing problems with the timeliness or accuracy of any particular branch, to make notations or comments on employee files, or been asked to comment on an individual employee's performance." Id. at 3. Based on these findings as to Cardella's specific duties concerning quality review and the fact that Cardella had issued no employee performance appraisals or directly supervised any employees, the Regional Director found that Cardella neither directed nor assigned work to individual employees within the meaning of section 7103(a)(10) of the Statute.

Regarding Cardella's duties in assigning correspondence, the Regional Director found that Cardella assigned some "incoming case correspondence to different branches, depending on the technical nature of the tax question involved. In general, each branch has its own subject matter jurisdiction; when more than one branch has had responsibility for the same subject matter, he has looked at the workload of the branches in determining how to make the assignment." Id. at 3. The Regional Director concluded that "the nature of [Cardella's] assignment responsibilities relates to distributing work to different branches, based on his technical judgment of what comes under their respective subject area jurisdiction [and that Cardella] does not assign work to individual employees." Id. at 4. Based on these findings, the Regional Director concluded that Cardella does not direct employees within the meaning of section 7103(a)(10) of the Statute.

Accordingly, the Regional Director clarified the exclusive bargaining unit to include Cardella.

III. The Activity's Application for Review

The Activity contends that compelling reasons exist under section 2422.17(c) of the Authority's Rules and Regulations for the Authority to grant its application. The Activity argues that the Regional Director's Decision raises a substantial question of law or policy because: (1) it departs from Authority precedent in finding that Cardella was not a supervisor; and (2) it was decided in the absence of Authority precedent addressing the particular conflict of interest issue presented in this case. The Activity also argues that the Regional Director's decision on a substantial factual issue is clearly erroneous and that the error prejudicially affects its rights.

Specifically, the Activity argues that the Regional Director's finding "that Cardella has not played a role in 'directing or assigning work to individual employees' . . . is clearly erroneous in that substantial evidence was produced . . . that Cardella assigned work to Branches . . . and that the quality review done by Cardella involves returning certain disapproved correspondence to the intitiator for further consideration." Application at 10. The Activity also claims that this "erroneous finding" departs from Authority precedent because it "creates a superficial distinction" where an individual like Cardella, "who assigns work to work units, directs reconsideration of outgoing work and reviews Branch Chiefs['] work can be included in the bargaining unit by merely finding that the individual does not assign work to a specific employee within the work unit." Id. at 5-6.

The Activity argues further that the Regional Director's finding "has clearly created a situation which results in a real or apparent conflict of interest between Cardella's inclusion in a bargaining unit and his individual duties in reviewing case handling and management, as well as accurately and timely reporting any performance problems which he identifies." Id. at 8. The Activity contends that there is an absence of Authority precedent addressing conflict of interest, specifically where an individual possesses the indicia of supervisory authority over a work unit rather than directly over bargaining unit employees.

IV. NTEU's Opposition

NTEU argues that the Activity has failed to submit compelling reasons for granting review of the Regional Director's Decision. Specifically, NTEU asserts that the record does not support a finding that the Regional Director departed from existing precedent when he found that Cardella does not assign work within the meaning of the Statute. NTEU argues that Cardella's duties in intermittently routing incoming work to particular branches based on the subject matter involved is subject to well established Authority precedent that employees who engage in intermittent assignment of work or the assignment of work that is routine and does not require the consistent exercise of independent judgment are not supervisors. NTEU also contends that the Activity has not supported its claim that Cardella's quality review function was in any way related to any of the supervisory indicia or that Cardella's inclusion in the unit would constitute a conflict of interest.

V. Discussion

We conclude that no compelling reasons exist within the meaning of section 2422.17(c) for granting the application for review. We find that no substantial question of law or policy is raised by reason of either a departure from Authority precedent or the absence of Authority precedent, and we find that there was no erroneous finding by the Regional Director on any substantial issue of fact.

We reject the Activity's contention that the Regional Director's finding that Cardella has not "played a role in . . . directing or assigning work to individual employees" is an erroneous finding of fact. This contention constitutes no more than disagreement with the Regional Director's conclusions, which were drawn from record testimony, including the undisputed fact that Cardella has not directly supervised any bargaining unit employees.

We also reject the Activity's contention that the Regional Director's findings depart from Authority precedent. The Activity claims that the Regional Director improperly relied on Cardella's lack of any direct role in assigning or directing employees. The Activity views Cardella's role in the assignment of incoming correspondence to the branches and his role in performing a quality review function to constitute effective authority for the assignment and direction of work to the branches.

Since it is undisputed that Cardella exercises no direct supervisory authority over bargaining unit employees, the only other basis for his exclusion as a supervisor would be evidence supporting the Activity's position that Cardella acts on behalf of the Associate Director, a second level supervisor, in the exercise of the Associate Director's supervisory authority. See, for example, U.S. Department of Justice, Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania, 7 FLRA 126, 133 (1981), where the Authority found an assistant food administrator to be a supervisor within the meaning of section 7103(a)(10) because the record reflected, among other things, that he had been delegated the responsibility for assignment and scheduling of subordinate foremen and the direction of their work.

The Regional Director's findings, however, do not support the Activity's position and are consistent with Authority precedent, including U.S. Penitentiary, Lewisburg. The Regional Director found that Cardella had neither assigned work nor directed employees. In our view, because Cardella does not exercise effective authority on behalf of the Associate Director in performing the functions alleged by the Activity to be supervisory, the record does not establish that Cardella acts for the Associate Director in directing the work of subordinates within the meaning of section 7103(a)(10) of the Statute.

First, concerning Cardella's duties in assigning certain incoming correspondence to the branches, the record establishes only that Cardella is performing a distributional or routing function, as found by the Regional Director. The performance of this function is routine in nature and, therefore, does not require the consistent exercise of independent judgment. See, for example, USA DARCOM, Materiel Readiness Support Activity (MRSA), Lexington, Kentucky, 8 FLRA 46, 48 (1982) (Maintenance Management Officer); U.S. Penitentiary, Lewisburg, 7 FLRA at 134 (Records Control "Supervisor"); and, West Point Elementary School, United States Military Academy, West Point, New York, 6 FLRA 70 (1981) (Teacher-Librarian), in which the Authority found that the incumbents in all of the positions involved were not supervisors because, among other things, the assignment of work by the incumb