34:0620(105)CU - - Army Aviation Systems Command (AVSCOM) and Army Troop Support Command (TROSCOM) and NFFE Local 405 - - 1990 FLRAdec RP - - v34 p620



[ v34 p620 ]
34:0620(105)CU
The decision of the Authority follows:


34 FLRA No. 105

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. ARMY AVIATION SYSTEMS COMMAND (AVSCOM)

AND U.S. ARMY TROOP SUPPORT COMMAND (TROSCOM)

(Activity)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 405

(Labor Organization/Petitioner)

57-CU-90008

ORDER GRANTING APPLICATION FOR REVIEW

January 26, 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 U.S. Army Aviation Systems Command (AVSCOM) and U.S. Army Troop Support Command (TROSCOM), St. Louis, Missouri (the Activity) under section 2422.17(a) of the Authority's Rules and Regulations.

The National Federation of Federal Employees, Local 405 (NFFE) filed a petition under section 7111(b) of the Federal Service Labor-Management Relations Statute (the Statute) seeking to clarify the bargaining unit status of eight employees. On September 28, 1989, the Regional Director issued his Decision and Order on Petition for Clarification of Unit, finding that seven of the employees are not supervisors and should be included in the bargaining unit and that one employee is a supervisor and should be excluded from the unit.

The Activity's application seeks review of the Regional Director's determination that the seven employees should be included in the unit. NFFE did not file an opposition to the application.

For the reasons set forth below, we grant the Activity's application.

II. Background and Regional Director's Decision

Since 1986, NFFE has been the exclusive representative of a consolidated unit of employees of the Activity. The existing unit is described as follows:

Included: All professional and non-professional General Schedule and Wage Grade employees of Headquarters, U.S. Army Aviation Systems Command (AVSCOM) and Headquarters, U.S. Army Troop Support Command (TROSCOM), with duty stations in the Greater St. Louis Area, including all employees of the U.S. Army Field Support Activity (AVSCOM) and the U.S. Army Administrative and Installations Support Activity (AVSCOM).

All professional and all non-professional General Schedule and Wage Grade employees assigned to the U.S. Army Avionics Research and Development Activity with duty stations in the Greater St. Louis Area.

All employees of the AVSCOM and TROSCOM Management Engineering Office.

Excluded: Management officials, supervisors, and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7), and all employees of the U.S. Army, St. Louis Area Support Center, Granite City, Illinois (SLASC).

Before the Regional Director, the parties stipulated that the issue in this case is whether the positions entitled Aerospace Engineer, GM-861-14; Electronics Engineer, GM-855-14; Electrical Engineer, GM-850-14; General Engineer, GM-801-14; and Physicist, GM-1310-14, encumbered by a total of eight employees, should be excluded from the bargaining unit because the positions are supervisory within the meaning of section 7103(a)(10) of the Statute. Regional Director's Decision at 2. NFFE argued that the positions should be included in the unit because the incumbents do not consistently exercise independent judgment and the positions, therefore, are not supervisory. The Activity argued that each of the positions is a team leader position and that because the team leaders assign work, direct employees, exercise independent judgment, and effectively recommend the full range of personnel actions, the team leaders are supervisors within the meaning of section 7103(a)(10) of the Statute and should be excluded from the unit.

The Regional Director found that the incumbent of one position, Electrical Engineer, GM-850-14, should be excluded from the unit as a supervisor under section 7103(a)(10) of the Statute. The Regional Director found that the employee in this position effectively recommends performance appraisal narratives, appraisal ratings, cash awards, counseling, discipline, overtime, training and disapproval of leave. The Regional Director concluded that the employee's exercise of this authority was not routine in nature but a consistent exercise of independent judgment.

As to the other seven employees, the Regional Director found that they are not supervisors within the meaning of the Statute. The Regional Director found that these employees do not effectively recommend promotion, appraisal, or disciplinary actions, and that they do not retain any signatory authority for any personnel actions. The Regional Director found that these employees "exercise[] independent judgment only as to the technical nature of the work. However, it has not been shown that [they] consistently exercise[] independent judgment needed to support a supervisory position under 5 U.S.C. 7103(a)(10)." Regional Director's Decision at 5, 7, 10, 11, 12, 13. See also id. at 14. Consequently, he included these employees in the unit.

III. Application for Review

The Activity seeks review of the Regional Director's Decision and Order under section 2422.17(c)(1) and (4) of our Rules and Regulations on the grounds that: (1) the Regional Director's decision presents a substantial question of law because of the absence of Authority precedent and because of a difference of opinion between Regions 5 and 7; and (2) the Regional Director's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the rights of the Activity.

The Activity contends that, based on the record evidence, the seven employees found not to be supervisors by the Regional Director "perform various supervisory functions, including the assignment of work." Application for Review at 2. The Activity argues, as to the Regional Director's findings concerning the assignment of work, that the Regional Director's determination "that this function involved merely an assessment of the technical nature of the work and was devoid of the requisite consistent exercise of independent judgment," was a decision as to "a substantial factual issue" that was "clearly erroneous." Id.

The Activity contends that "the record is replete with references to the use of discretion in the assignment of work." Id. The Activity argues that the record demonstrates that the seven employees assign work based on their "independent assessment of the nature of the work and the technical competence and capabilities of the team members, without consultation with the branch chief" and on their determinations as to workload considerations, "including the authority to re-prioritize and reassign work among team members." Id. The Activity acknowledges that assigning work to professional engineers necessarily involves some assessment of the technical nature of the work. However, the Activity argues that, in finding that these employees did not consistently exercise independent judgment in assigning work, the Regional Director "never explains what is lacking" or indicates what facts led him to that conclusion. Id. The Activity asserts that the facts as found by the Regional Director support its position rather than the conclusions of the Regional Director. The Activity contends that the Regional Director's erroneous factual finding that the team leaders exercised independent judgment only as to the technical nature of the work prejudicially affected its rights because that finding resulted in a conclusion adverse to the Activity.

The Activity also contends that review of the cases cited by the Regional Director as precedent for his decision reveals that the holding in each of those cases "was based on facts which indicated that the assignment of work was clearly a mechanical exercise." Id. at 3. The Activity argues that the Regional Director's reliance on those cases is "misplaced" and that, given the evidence in the record, the question is, "assuming the requisite exercise of independent judgment, what types of supervisory duties are sufficient to place an incumbent within the statutory definition of supervisor?" Id. at 4.

The Activity states that, in classifying the seven employees as supervisors, it relied on a decision of the Authority's Regional Director of Region 7 which decided the bargaining unit status of similar engineering positions in AVSCOM. In that decision, the Regional Director of Region 7 concluded that the incumbent of an engineering team leader position was a supervisor because she found that the duties of that position included the assignment of work to members of the team and the direction of their performance of those assignments. The Activity contends that, in the absence of Authority precedent "relevant to the positions at issue," the Activity is "without proper guidance as to what types of supervisory duties are sufficient to place an incumbent within the statutory definition of supervisor." Id. at 5.

Finally, the Activity notes that because the General Counsel has ordered the transfer of cases involving the Activity from Region 7 to Region 5, the Activity would now appear to be subject to the guidelines established by Region 5 in the instant decision. The Activity asserts that "consistent application of the [S]tatute" makes it "imperative" that the Authority grant the application for review and "issue binding guidance in this area." Id.

IV. Discussion

The Regional Director found that the seven team leaders "exercise[] independent judgment only as to the technical nature of the work. However, it has not been shown that [they] consistently exercise[] independent judgment needed to support a supervisory position under 5 U.S.C. 7103(a)(10)." Regional Director's Decision at 5, 7, 10, 11, 12, 13. See also id. at 14. The Regional Director's conclusion appears to be based on determinations that the team leaders' exercise of independent judgment in assigning and reviewing work was limited to technical matters, and that their exercise of independent judgment was not sufficient to exclude the employees from the unit as supervisors. The Regional Director did not make a finding that the assignment and review of work was merely routine or clerical in nature.

We conclude that the Activity has established that compelling reasons exist for granting the application for review pursuant to the provisions of section 2422.17(c)(1) of our Rules and Regulations. Specifically, it appears that substantial questions of law or policy are raised because of the absence of, or departure from, Authority precedent with respect to:

Whether, in the circumstances of this case, the assignment and review of work by the seven team leaders constitutes the exercise of an authority which "is not merely routine or clerical in nature but requires the consistent exercise of independent judgment" within the meaning of section 7103(a)(10) so as to exclude the team leaders from the unit as supervisors.

Resolution of this issue also involves consideration of the correctness of the Regional Director's finding that the seven team leaders exercise independent judgment only as to the technical nature of the work.

V. Order

For the reasons discussed abov