34:0423(76)CU - VA MEDICAL CENTER, ALLEN PARK, MICHIGAN and AFGE, LOCAL 933, AFL-CIO -- 1990 FLRAdec CU



[ v34 p423 ]
34:0423(76)CU
The decision of the Authority follows:


34 FLRA NO. 76


            VETERANS ADMINISTRATION MEDICAL CENTER
                     ALLEN PARK, MICHIGAN
                       (Activity/Agency)

                              and

          AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                      LOCAL 933, AFL-CIO
                (Labor Organization/Petitioner)

                          5-CU-90002

	      ORDER GRANTING APPLICATION FOR REVIEW

     		      January 19, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This case is before the Authority on an application for
review filed by the American Federation of Government Employees,
Local 933, AFL - CIO (the Union) under section 2422.17(a) of the
Authority's Rules and Regulations. The Union seeks review of the
Regional Director's Decision and Order on a petition filed under
section 7111(b)(2) of the Federal Service Labor - Management
Relations Statute (the Statute) seeking to clarify the bargaining
unit status of one position, the second shift Medical Equipment
Repairer Foreman. The Regional Director found that the incumbent
of the second shift Medical Equipment Repairer Foreman position
is a supervisor within the meaning of section 7103(a)(10) of the
Statute and should be excluded from the bargaining unit. The
Veterans Administration Medical Center, Allen Park, Michigan (the
Activity) did not file an opposition to the Union's application
for review.

     Inasmuch as the Authority had two vacancies when this
application for review was received, Acting Chairman McKee issued
an Interim Order on August 25, 1989, directing that 
consideration of the application be deferred until further
notice. The Interim Order preserved the parties' rights under the
Statute to Authority consideration of the Regional Director's
decision.

     The Authority now considers the application for review. For
the reasons which follow, we grant the application for review.

II. Regional Director's Decision

     This unit clarification issue arose when the Activity added
a second shift Medical Equipment Repairer Foreman position and
promoted a Journeyman Repairer to Foreman. Thereafter, the
Foreman on the first shift and the newly-promoted Foreman rotated
between the first and second shifts every 3 months.

     The Regional Director found that the Foremen are accountable
for the work performed by the employees on their shifts. The
Regional Director also concluded that "(o)n the second shift the
assignment of work is primarily routine in nature with little
guidance given to the (employees)." Regional Director's Decision
at 3. The Regional Director further found that each Foreman (1)
is responsible for preparing performance appraisals of the
employees working under him at the time; (2) has the authority to
counsel and admonish employees without prior approval; (3) is the
first step in the grievance procedure.

     The Regional Director also found that the Foremen may
recommend employees for awards or promotions, although no
recommendations have been made since the second shift Foreman
position was created. The Regional Director further found that
the Foremen are jointly responsible for recommending the
selection of new hires and that "(t)he Foremen recommended the
hiring of a clerical employee recently. Their recommendation was
accepted." Id.

     The Regional Director concluded that the above-described
duties of the second shift Medical Equipment Repairer Foreman
were "not merely routine but require the consistent use of
independent judgment in the exercise of supervisory authority."
Id. Further, the Regional Director stated that he noted
"particularly that the Foreman approves leave and has the
authority to discipline. Also, the Foreman is responsible for
evaluating employees and has effectively recommended the hiring
of a new employee." Id. 

     Based on these findings, the Regional Director concluded
that the second shift Medical Equipment Repairer Foreman position
is a supervisory position within the meaning of section
7103(a)(10) of the Statute and should be excluded from the
bargaining unit under section 7112(b)(1).

III. Application for Review

     The Union contends that the Regional Directors' decision "is
clearly erroneous and prejudicially affects the rights of the
Petitioner, and/or raise (sic) a substantial question of law due
to the departure from Authority precedent." Application for
Review at 1. The Union asserts that, contrary to the Regional
Director's findings, the second shift Foreman does not
consistently exercise independent judgment in the exercise of
supervisory authority. According to the Union, the second shift
Foreman "does not independently approve pre-scheduled leave, and
has not effectively recommended the hiring of a new employee."
Id. at 3. The Union argues that the record establishes that
annual leave approval is a joint decision between the two
Foremen. The Union contends further that because the record
establishes that the first and second shift Foremen jointly
recommended the hiring of an applicant, the second shift Foreman
did not "independently and effectively" recommend the hiring of
an applicant. Id.

     The Union also contends that the Regional Director's finding
that "the 'authority' to discipline (employees) and the
'responsibility' for evaluating (employees) constitutes
supervisory duties is contrary to Authority precedent." Id. at 4
(emphasis in original). The Union asserts that Authority
precedent requires that bargaining unit determinations be based
on actual duties performed at the time of the hearing. The Union
concludes that because the record does not establish that the
second shift Foreman has actually performed these duties, the
Regional Director's decision is contrary to Authority
precedent.

IV. Discussion

     On consideration of the Union's application for review, it
appears to the Authority that pursuant to section
2422.17(c)(1)(i) of our Regulations, compelling reasons exist for
granting review due to an absence of Authority precedent.
Accordingly, we will grant the Union's application for review.

     Section 7112(b)(1) of the Statute provides that a bargaining
unit is not "appropriate" if it includes a  supervisor.
Section 7103(a)(10) of the Statute defines "supervisor," in
relevant part, as:

     an individual . . . having authority . . . 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(.)

     The Regional Director relied on a number of findings to
support his decision that the second shift Foreman is a
supervisor within the meaning of section 7103(a)(10) of the
Statute. We conclude that except for one of these findings--a
finding for which there is an absence of Authority precedent--the
remaining findings do not support a decision that the second
shift Foreman is a supervisor within the meaning of section
7103(a)(10) of the Statute.

     The Regional Director found that each Foreman was
accountable for the work performed by the employees on his shift.
The Regional Director also found, however, that "(o)n the second
shift the assignment of work is primarily routine in nature with
little guidance given to the (employees)." Regional Director's
Decision at 3. Section 7103(a)(10) provides that exercises of
supervisory authority must not be "merely routine" but, rather,
must require "the consistent exercise of independent judgment" in
order to satisfy the definition of supervisor. The assignment of
work by the second shift Foreman does not, therefore, support a
finding that the Foreman is a supervisor.

     The Regional Director also found that the second shift
Foreman approves leave. Leave approval is not one of the
supervisory indicia listed in section 7103(a)(10) of the Statute,
however. Thus, this finding alone, without a showing of the
exercise of any specific statutory supervisory authority, does
not support the Regional Director's decision that the second
shift Foreman is a supervisor.

     The Regional Director further found that the second shift
Foreman has the authority to (1) prepare performance evaluations,
(2) counsel and admonish employees, (3) handle grievances, and
(4) recommend employees for awards and promotions. However, the
Regional Director did not find that the second shift Foreman
actually exercised these authorities. Because the Regional
Director did not find that any of these authorities had
been exercised by the second shift Foreman, the Regional
Director's findings do not establish that the second shift
Foreman consistently exercises independent judgment in the
exercise of those authorities. See Veterans Administration
Medical Center, Prescott, Arizona, 29 FLRA  1313, 1315 (1987) (a
unit determination is based on testimony as the duties which
actually are performed by an employee at the time of the hearing
rather than duties which may be assigned in the future); Veterans
Administration Medical Center, Bronx, New York, 10 FLRA  301, 302
n.2 (1982) (incumbent's exercise of authority to assign work and
direct employees found not to require the consistent exercise of
independent judgment because the incumbent had held supervisory
position for only 5 months and testified that because supervised
employees were more experienced than he, there was little
supervision that he could give them).

     Finally, the Regional Director found that the second shift
Foreman, jointly with the first shift Foreman, recommended the
hiring of a new employee. Action to effectively recommend the
hiring of an employee is one of the indicia of supervisory
authority listed in section 7103(a)(10) of the Statute. However,
it appears that there is an absence of Authority precedent as to
whether the joint exercise of one indicia of supervisory
authority is sufficient to establish that an individual is a
supervisor within the meaning of section 7103(a)(10) of the
Statute.

     Consequently, we will grant the application for review. The
parties may, within 10 days of issuance of this order, submit
briefs on the following issue:

     Whether an individual who jointly exercises one of the
indicia of supervisory authority set forth in section 7103(a)(10)
of the Statute is a supervisor within the meaning of the
Statute.

V. Order

     The application for review is granted. In accordance with
section 2422.17(g) of the Authority's Rules and Regulations, the
parties may submit briefs within 10 days on the issue noted
above. Briefs should be directed to:

                   Ms.