36:0587(66)CU - - Army, Army Aviation Systems Command and Army Troop Support Command, St. Louis, MO and NFFE Local 405 - - 1990 FLRAdec RP - - v36 p587



[ v36 p587 ]
36:0587(66)CU
The decision of the Authority follows:


36 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

ARMY AVIATION SYSTEMS COMMAND

AND

ARMY TROOP SUPPORT COMMAND

ST. LOUIS, MISSOURI

(Activity)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 405

(Labor Organization/Petitioner)

57-CU-90008

DECISION AND ORDER ON REVIEW

August 10, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on review of the Regional Director's decision and order on a petition for clarification of unit filed by the Petitioner (NFFE). The Authority granted the Activity's application for review in U.S. Army Aviation Systems Command (AVSCOM) and U.S. Army Troop Support Command (TROSCOM), 34 FLRA 620 (1990) (AVSCOM and TROSCOM).

NFFE's petition sought to clarify the bargaining unit status of eight employees. The Regional Director issued a decision and order 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 for review sought 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 review.

We granted the Activity's application for review because it appeared that substantial questions of law or policy were 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.

AVSCOM and TROSCOM, 34 FLRA at 624. We noted that resolution of this issue 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.

We permitted the parties to submit briefs on the issue upon which review was granted. Both parties filed briefs.

For the reasons set forth below, we find that five of the disputed employees are supervisors within the meaning of section 7103(a)(10) of the Statute and, consequently, we will exclude them from the bargaining unit. We find that the remaining two employees are not supervisors. Consequently, those two employees will be included in the unit.

II. Background and Regional Director's Decision

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 requires the consistent exercise of independent judgment. Regional Director's Decision at 9.

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 personnel actions. The Regional Director found that these employees "exercise[] independent judgment only as to the technical nature of the work. However, it had 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. Positions of the Parties

A. Activity's Position

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. As to the Regional Director's findings concerning the assignment of work, the Activity argues 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 work load 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 assignment of work involved the mere assessment of the technical nature of the work prejudicially affected its rights because it 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 (emphasis in original). 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 involved 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 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" is "imperative" and that the Authority should "issue binding guidance in this area." Id.

B. NFFE's Position

NFFE contends that the primary responsibility for making decisions on representation cases rests with the Regional Director. It maintains that as long as the evidence in the record supports the ultimate conclusion reached by the Regional Director, his decision should not be disturbed. Union's Brief at 2.

NFFE asserts that the Authority's approach to unit clarification issues should be consistent with the legislative history of the Statute in that the exceptions to statutory coverage for employees must be narrowly construed. Id. at 3. NFFE maintains that this rule would promote the purposes and policies of the Statute and the Authority's Rules and Regulations. Id. In this regard, NFFE asserts that the Regional Director is in the best position to evaluate the testimony and reach an informed decision as to the status of the disputed employees.

NFFE argues that the disputed employees are team leaders with no more than routine responsibility for assigning work and directing the work of subordinates. It also argues that these employees' relationship with other employees is more like that of a "senior employee to a junior employee than that of a supervisor to a subordinate." Id. at 5-6. NFFE asserts that these employees are not supervisors just because they draw on their technical knowledge as professionals in deciding how to assign work. Id. at 6. Therefore, NFFE argues that the Regional Director's decision and order clarifying the bargaining unit should be upheld.

IV. Analysis and Conclusions

Section 7103(a)(10) of the Statute defines a "supervisor" as an individual employed by an agency who has 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 Authority stated in Army and Air Force Exchange Service, Base Exchange, Fort Carson, Fort Carson, Colorado, 3 FLRA 596, 599 (1980) (Army and Air Force Exchange Service), that an employee is a supervisor if the employee consistently exercises independent judgment with regard to the supervisory indicia set forth in section 7103(a)(10) of the Statute. The Authority recently reaffirmed that an employee need exercise only one of the responsibilities set forth in section 7103(a)(10) in conjunction with independent judgment in order to be found a supervisor. U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Allen Park, Michigan, 35 FLRA 1206 (1990).

The case before us concerns the supervisory status of team leaders. We must determine whether these team leaders consistently exercise independent judgment within the meaning of section 7103(a)(10) of the Statute when assigning work to, and reviewing work of, other team members.

In U.S. Army Communications and Electronics Materiel Readiness Command, Fort Monmouth, New Jersey, 9 FLRA 101 (1982) and United States Department of the Navy, U.S. Naval Station, Panama, 7 FLRA 489, 492 (1981) (U.S. Naval Station), the Authority found that the status of employees in "leader" positions in relation to the other employees with whom they work was merely that of a leadman or more senior and experienced employee in relating to less experienced employees. In these circumstances, the leaders were found not to be supervisors within the meaning of section 7103(a)(10) of the Statute because their responsibilities were routine in nature and did not involve the consistent exercise of independent judgment. See also U.S. Department of the Treasury, Office of Chief Counsel, 32 FLRA 1255, 1258-60 (1988); U.S. Army, Dugway Proving Ground, Dugway, Utah, 8 FLRA 684, 686-87 (1982); and USA DARCOM, Materiel Readiness Support Activity (MRSA), Lexington, Kentucky, 8 FLRA 46 (1982) (DARCOM). In those cases, the Authority found that employees who review team members' work product from a technical standpoint were not supervisors because the review function was routine and did not require the exercise of independent judgment.

On the other hand, the Authority has found that employees who consistently exercise independent judgment in the assignment of work, as distinguished from performing duties that are only routine in nature, are supervisors. See, for example, U.S. Army Materiel Development and Readiness Command, Automated Logistics Management Systems Activity, St. Louis, Missouri, 16 FLRA 248 (1984); Department of the Navy, Naval Undersea Warfare Engineering Station, Keyport, Washington, 7 FLRA 526, 529-31 (1981); and U.S. Department of Justice, Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania, 7 FLRA 126, 132-33 (1981) (Bureau of Prisons). Additionally, the Authority has found employees to be supervisors where it was shown that they consistently exercise independent judgment as to the direction or review of other employees' work. See, for example, Bureau of Prisons; Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 644, 651-52 (1980); Army and Air Force Exchange Service, 3 FLRA at 601.

Determinations of the supervisory status of team leaders are based on the application of the facts developed in the record to the criteria set forth above. We have reviewed the entire record in this case and we will apply the facts to the criteria stated above to determine whether each of the team leaders whose supervisory status is in dispute consistently exercises independent judgment within the meaning of section 7103(a)(10) of the Statute when assigning work to, and reviewing work of, other team members. For the reasons that follow, we find that employees Dana J. Taylor, Dharmbir Rai, Gabor Kovacs, A. Raino Trifonoff, and Michael McMiller are supervisors and should be excluded from the unit. The remaining two employees, Russell Stanton and Anthony E. Lavella, are not supervisors and will be included in the unit.

A. Dana J. Taylor, Aerospace Engineer, GM-861-14

The record shows that Taylor is responsible for assigning work to the other two team members and to himself. Transcript at 42, 58. Taylor is also responsible for reviewing the technical accuracy of completed work projects. Id. at 77. He assigns work based on his opinion of the competence or capability of the members on his team. Id. at 76. Work assignments are not predetermined and Taylor reassigns work from one member to another based on the workload or the setting of new priorities. Id. Taylor also assigns work to team members to increase the capability of the team and members' knowledge. Id. at 83.

We conclude that Taylor's duties with respect to the assignment and review of team members' work, including the assessment of the need for the reassignment of work, are not routine and involve the consistent exercise of independent judgment. See, for example, Bureau of Prisons. In so concluding, we find that Taylor's consistent exercise of independent judgment involves, but is not restricted to, an assessment of the technical nature of the work. We find, therefore, contrary to the Regional Director, that Taylor is a supervisor within the meaning of section 7103(a)(10) of the Statute. Consequently, we will exclude him from the unit.

B. Dharmbir Rai, Electronics Engineer, GM-855-14

The record shows that Rai is responsible for regularly assigning work to the other three team members and to himself. Transcript at 125-26, 127-29. Rai reviews the work of the other team members for technical accuracy. Id. at 130. He consistently assigns work based on his discretion as to the nature of the work and the experience of the team members. Id. at 128. Approximately once a month or every 2 months, Rai assesses the workload, sets new priorities and reassigns work to the other team members. Id. at 129.

We conclude that Rai's duties with respect to the assignment and review of team members' work, including the assessment of the need for the reassignment of work, are not routine and involve the consistent exercise of independent judgment. See, for example, Bureau of Prisons. In so concluding, we find that Rai's consistent exercise of independent judgment involves, but is not restricted to, an assessment of the technical nature of the work. We find, therefore, contrary to the Regional Director, that Rai is a supervisor within the meaning of section 7103(a)(10) of the Statute. Consequently, we will exclude him from the unit.

C. Gabor Kovacs, General Engineer, GM-801-14

The record shows that Kovacs is responsible for assigning the work of the team to the other eight members of the team and to himself. Transcript at 348, 362-63. Kovacs is also responsible for reviewing the team members' work for technical accuracy. Id. at 341. He exercises discretion in deciding which work is assigned to each team member based on their availability, and also on his knowledge of their experience and expertise. Id. at 340. Based on his assessment of workload requirements, Kovacs redistributes or reassigns work among other team members. Id. Additionally, Kovacs nominated one of his team members for an incentive award that was approved by Kovacs' supervisor. Id. at 326-28.

We conclude that Kovacs' duties with respect to the assignment and review of team members' work, including the assessment of the need for the reassignment of work, are not routine and involve the consistent exercise of independent judgment. See, for example, Bureau of Prisons. In so concluding, we find that Kovacs' consistent exercise of independent judgment involves, but is not restricted to, an assessment of the technical nature of the work. Furthermore, we conclude that Kovacs has effectively recommended an award for one of his team members. We find, therefore, contrary to the Regional Director, that Kovacs is a supervisor within the meaning of section 7103(a)(10) of the Statute. Consequently, we will exclude him from the unit.

D. A. Raino Trifonoff, Electronics Engineer, GM-855-14

The record shows that Trifonoff is responsible for regularly assigning work to one other team member and to himself. Transcript at 460. Although the other team member spends much of his time on long, ongoing projects, Trifonoff assigns him additional work about once a week. Id. at 476. Trifonoff reviews the final work product of the other team member for technical accuracy. Id. at 467. In assigning work, Trifonoff exercises discretion based on the workload, the experience or expertise of the other team member, and Trifonoff's own view of who is the best qualified person to do the job. Id. at 460, 480. Based on his judgment as to workload needs and shifting priorities, Trifonoff reassigns work between the other team member and himself. Id. at 461.

We conclude that Trifonoff's duties with respect to the assignment and review of team members' work, including the assessment of the need for the reassignment of work, are not routine and involve the consistent exercise of independent judgment. See, for example, Bureau of Prisons. In so concluding, we find that Trifonoff's consistent exercise of independent judgment involves, but is not restricted to, an assessment of the technical nature of the work. We find, therefore, contrary to the Regional Director, that Trifonoff is a supervisor within the meaning of section 7103(a)(10) of the Statute. Consequently, we will exclude him from the unit.

E. Michael McMiller, Electronics Engineer, GM-855-14

The record shows that McMiller is responsible for regularly assigning work to one other team member and to himself. Transcript at 501. McMiller reviews all the significant work of the other team members for technical accuracy. Id. at 500, 502. In deciding which work to assign to himself or other team members, McMiller uses his engineering judgment and discretion to assess the complexity of the work and the expertise of the other team members. Id. at 512 and 501. About twice a month, McMiller reorders or reassesses his team's priorities, and two or three times a month he reassigns work from the other team member to himself. Id. at 503.

We conclude that McMiller's duties with respect to the assignment and review of team members' work, including the assessment of the need for the reassignment of work, are not routine and involve the consistent exercise of independent judgment. See, for example, Bureau of Prisons. In so concluding, we find that McMiller's consistent exercise of independent judgment involves, but is not restricted to, an assessment of the technical nature of the work. We find, therefore, contrary to the Regional Director, that McMiller is a supervisor within the meaning of section 7103(a)(10) of the Statute. Consequently, we will exclude him from the unit.

F. Russell Stanton, Physicist (Optics), GM-1310-14

The record shows that Stanton assigns work to the other two team members and to himself. Transcript at 522. Stanton assigns work based on the type of project or system for which the team is responsible. Id. at 523. In most instances (90 to 95 percent of the time), Stanton knows to whom he will assign the work as soon as Stanton receives it. Id. at 532. Stanton has not changed any assignment of anybody on a team. Id. at 533. Stanton's review of the work of the other team members requires them to revise their work only infrequently. Id. at 534-35.

We conclude that Stanton does not consistently exercise independent judgment in the assignment or reassignment of work or in reviewing other team members' work. Rather, his exercise of these functions is routine in nature. See, for example, U.S. Naval Station and DARCOM. Moreover, for the reasons stated by the Regional Director, we find that Stanton does not consistently exercise independent judgment needed to support a supervisory position with respect to the other criteria contained in section 7103(a)(10) of the Statute. We conclude, therefore, in agreement with the Regional Director, that Stanton is not a supervisor within the meaning of section 7103(a)(10) of the Statute. Accordingly, we conclude that the Regional Director properly included Stanton in the bargaining unit.

G. Anthony E. Lavella, Electronics Engineer, GM-855-14

The record shows that Lavella assigns work to one other team member and to himself. Transcript at 545. Lavella assigns work based on the type of equipment that the work is associated with. Id. at 546. All active systems and related work is assigned to the team member and all passive systems and related work is assigned to Lavella. Id. Lavella does not normally shift work assignments between his team member and himself. Id. at 547. Lavella does not normally review the work of his team member for technical accuracy. Id.

We conclude that Lavella does not consistently exercise independent judgment in the assignment or reassignment of work or in reviewing the other team member's work. Rather, his exercise of these functions is routine in nature. See, for example, U.S. Naval Station and DARCOM. Moreover, for the reasons stated by the Regional Director, we find that Lavella does not consistently exercise independent judgment needed to support a supervisory position with respect to the other criteria contained in section 7103(a)(10) of the Statute. We conclude, therefo