35:1206(137)CU - - Veterans Affairs, VA Medical Center, Allen Park, MI and AFGE Local 933 - - 1990 FLRAdec RP - - v35 p1206



[ v35 p1206 ]
35:1206(137)CU
The decision of the Authority follows:


35 FLRA No. 137

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

VETERANS ADMINISTRATION MEDICAL CENTER

ALLEN PARK, MICHIGAN

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 933

(Labor Organization)

5-CU-90002

DECISION

May 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on the Union's Application for Review of the Regional Director's Decision and Order on a petition for clarification of unit. The Union's Application seeks review of the Regional Director's finding that the incumbent of the second shift Medical Equipment Repairer (MER) Foreman position is a supervisor within the meaning of section 7103(a)(10) of the Federal Service Labor-Management Relations Statute (the Statute) and, therefore, should be excluded from the bargaining unit.

The Authority granted the Union's application in Veterans Administration Medical Center, Allen Park, Michigan, 34 FLRA 423 (1990). In the grant of the Union's application for review, the Authority asked the parties to submit briefs on the issue of whether an individual who jointly exercises one of the indicia of supervisory authority set forth in section 7103(a)(10) is a supervisor within the meaning of the Statute. Pursuant to the Authority's request, both the Union and the Activity submitted briefs.

For the reasons discussed below, we find that the incumbent of the second shift MER Foreman position is a supervisor within the meaning of section 7103(a)(10) of the Statute and is, therefore, excluded from the bargaining unit in accordance with the requirements set forth in section 7112(b)(1).

II. Background and Regional Director's Decision

This unit clarification issue arose when the Activity created a second shift MER Foreman position and promoted a Journeyman Repairer to Foreman. Previously, there had been only one shift and one supervisor for the Medical Repair Unit. The Union subsequently filed a clarification of unit petition to determine whether the second shift MER Foreman position, WS-4805-10, is included in the bargaining unit. The Activity contended that the position should be excluded from the unit under section 7112(b)(1) because the incumbent is a supervisor within the meaning of section 7103(a)(10).

The Regional Director found that with the addition of the new shift, the Foreman on the first shift rotates every 3 months with the Foreman on the newly created second shift. The Regional Director also found that each Foreman is accountable for work done by the employees on his shift and (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; and (3) is the first step grievance official.

The Regional Director found further that the Foremen jointly recommended the hiring of a clerical employee and that their recommendation was accepted by the Chief of Engineering. However, 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 found that the second shift MER Foreman spends about 70 to 80 percent of his time performing the functions of a Journeyman Repairer.

The Regional Director determined that the "duties of the Medical Equipment Repairer Foreman position are not merely routine but require the consistent use of independent judgment in the exercise of supervisory authority." Id. at 3. The Regional Director noted that both the first and second shift MER Foremen approve leave, have the authority to discipline, are responsible for evaluating employees, and recommended the hiring of a new employee. Id.

Based on these findings, the Regional Director concluded that the second shift MER Foreman is a supervisor, within the meaning of section 7103(a)(10) of the Statute, and should be excluded from the bargaining unit.

III. The Union's Application for Review and the Authority's Decision in 34 FLRA 423

The Union filed an Application for Review of the Regional Director's decision that the incumbent of the second shift MER Foreman position is a supervisor within the meaning of the Statute. As grounds for review, the Union contended that the Regional Director's decision is (1) clearly erroneous, and (2) contrary to Authority precedent. Application for Review at 3-4.

In 34 FLRA 423, the Authority noted that the Regional Director had relied on a number of findings to support his decision that the second shift Foreman is a supervisor. The Authority concluded, however, that except for the Regional Director's determination that the second shift Foreman, jointly with the first shift Foreman, recommended the hiring of a new employee, the Regional Director's remaining findings did not support his determination. The Authority also noted that although 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, 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, the Authority granted the Union's Application for Review and requested that the parties 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.

IV. Positions of the Parties

A. The Union's Position

In its brief submitted in response to the Authority's request, the Union notes that the definition of supervisor in section 7103(a)(10) requires the consistent exercise of independent judgment. Further, the Union notes that the term "independent" is defined in Webster's New World Dictionary of the American Language, Second College Edition (1980), as "among other things, 'free from the influence, control, or determination of another or others . . . relying only on oneself or one's own abilities, judgment, etc.'" Union's Brief at 1 (emphasis in original). The Union contends that section 7103(a)(10) "is reflective of the Congressional intent that a distinction be made between a true supervisor or management official and a 'straw boss' or work leader." Id. at 2.

The Union argues that, consistent with the dictionary definition of "independent," the second shift MER Foreman is not a supervisor within the meaning of section 7103(a)(10). The Union claims that testimony during the hearing indicates that "rather than exercising independent judgment, the incumbents of the Medical Equipment Repair Foremen position were essentially totally confined to expressing opinions and taking actions arrived at through consensus." Id. The Union concludes that "the incumbents of the positions simply do not display the independent judgment that is an absolute requirement of the Statute for a position to be excluded from the bargaining unit." Id.

B. The Activity's Position

In its brief submitted in response to the Authority's request in 34 FLRA 423, the Activity asserts that the hospital has given equal authority and the same duties to both Foremen. The Activity contends that "a determination by the Authority that one of them does not act as a supervisor within the definition of the Statute would create a situation where the individual acting as supervisor on the afternoon shift could not act independently of Union influence or perform the full range of supervisory functions." Activity's Brief at 2. Moreover, the Activity asserts that both supervisors perform the full range of duties defined by the Statute and that although they must act in unison to hire or fire employees, they each bear sole responsibility on their respective shifts for actions such as writing performance evaluations, assigning work, authorizing leave, and disciplining employees. Id.

The Activity notes that the Regional Director found that both Foremen jointly acted in the hiring of a clerical employee. Moreover, the Activity disputes the Union's claim that a decision made by more than one individual cannot be considered an independent act. According to the Activity, "[t]he Statute did not envision the word 'independent' as meaning that only one individual would make the decision." Id. at 4. Rather, the Activity asserts that "the correct interpretation should be to treat the two supervisors as a unit, cooperating or functioning jointly to make decisions, independent from hospital staff, and jointly sharing responsibility for those decisions." Id.

The Activity objects to the Authority's finding in 34 FLRA 76 that some of the supervisory duties had not yet been exercised by the second shift foreman. The Activity argues that "the fact that the position had only been recently created and performance evaluations, counseling of employees, grievance handling, and award and promotion proposals for example, and [sic] not yet been performed simply for lack of time, indicates the premature nature of characterizing the position as non-supervisory." Id. at 5. The Activity maintains that subsequent to the filing of the application for review, all of the duties listed in section 7103(a)(10) of the Statute have now been performed by both individuals on both shifts. Therefore, the Activity asserts that the Authority should remand this matter to the Regional Director to determine the supervisory status of the Foremen under the Statute based on the duties they now perform. Id. at 10.

Finally, the Activity points out that the Union does not contest the supervisory status of the day shift Foreman. The Activity asserts that because both Foremen perform the same functions on their respective shifts, the second shift Foreman must also be considered a supervisor.

IV. Analysis and Conclusion

In its Brief dated January 26, 1990, the Union refers to the unit clarification of the incumbent Foremen on both the first and second shifts. The Union requests that "the unit be clarified to include the positions of Medical Equipment Repairer Foreman." Union's Brief at 2.

We will not consider the status of the first shift Foreman. This case is before the Authority on the Union's Application for Review of the Regional Director's decision dated April 20, 1989. Both the Union's Application for Review and the Regional Director's decision pertained only to the incumbent MER Foreman on the second shift. Accordingly, we will decide the unit status of only that position. For the following reasons, we conclude that the incumbent of the second shift MER Foreman position is a supervisor within the meaning of section 7103(a)(10) of the Statute.

Section 7103(a)(10) of the Statute provides:

(10) 'supervisor' means 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, except that, with respect to any unit which includes firefighters or nurses, the term 'supervisor' includes only those individuals who devote a preponderance of their employment time to exercising such authority[.]

The Authority has found that an employee is a supervisor when that employee exercises at least one of the supervisory criteria set forth in section 7103(a)(10) or recommends subordinates for one of these actions. See Department of the Air Force, Hanscom Air Force Base, Bedford, Massachusetts, 14 FLRA 266, 268 (1984) (Hanscom) (employee who recommended subordinates for awards was determined to be a supervisor). See also Headquarters, 1947th Administrative Support Group, U.S. Air Force, Washington, D.C., 14 FLRA 220, 226 (1984) (1947th Administrative Support Group) (employee who effectively recommended awards for subordinates was a supervisor).

The Authority's position is consistent with the court's interpretation of analogous supervisory status criteria under the National Labor Relations Act (NLRA). The supervisory criteria listed in § 2(11) of the NLRA, as amended, 29 U.S.C. § 152(11), closely resemble the supervisory criteria set forth in section 7103(a)(10) of the Federal Service Labor-Management Relations Statute. Under section 152(11), the presence or exercise of only one criterion is necessary to establish supervisory status. See American Diversified Foods, Inc. v. N.L.R.B., 640 F.2d 893, 896 (7th Cir. 1981); Walla Walla Union-Bulletin v. N.L.R.B., 631 F.2d 609, 613 (9th Cir. 1980) (Walla Walla). Independent judgment must be exercised in conjunction with the exercise of any one of the § 152(11) criteria, however, in order to confer supervisory status on an employee. See Walla Walla at 613; N.L.R.B. v. Harmon Industries, Inc., 565 F.2d 1047, 1049 (8th Cir. 1977).

We find that the record establishes that the second shift MER Foreman exercised one of the criteria of supervisory authority set forth in section 7103(a)(10) by recommending a candidate for hire. Under the standard found in Hanscom, 1947th Administrative Support Group, and the private sector cases, an employee is required only to exercise one of these criteria in conjunction with independent judgment in order to attain supervisory status. As a result, we find that the incumbent MER Foreman on the second shift is a supervisor within the meaning of the Statute.

In concluding that the second shift MER Foreman is a supervisor within the meaning of section 7103(a)(10) of the Statute, we reject the Union's assertion that because the Foremen jointly recommended that the employee be hired, the second shift Foreman did not use independent judgment, as required by the Statute. The Statute does not state that a decision requiring the exercise of independent judgment must only be made by one individual. We find instead that prior to reaching a final joint recommendation, the second shift Foreman was required to form his own preliminary assessment of the candidates. In doing so, he exercised independent judgment. Furthermore, the second shift Foreman's assessment of candidates was accorded the same degree of consideration as was the first shift Foreman's assessment. Stated otherwise, the second shift Foreman could reject the candidate favored by the first shift