44:0112(10)CU - - Interior, Bureau of Indian Affairs, Navajo Area Office, Gallup, NM and AFT, National Council of Bureau of Indian Affairs Educators - - 1992 FLRAdec CU - - v44 p112
[ v44 p112 ]
The decision of the Authority follows:
44 FLRA No. 10
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
NAVAJO AREA OFFICE
GALLUP, NEW MEXICO
AMERICAN FEDERATION OF TEACHERS
NATIONAL COUNCIL OF BUREAU OF INDIAN
ORDER GRANTING APPLICATION FOR REVIEW
February 27, 1992
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 Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Acting Regional Director's (ARD) Decision and Order on Petition for Clarification of Unit (CU) finding that Patrick J. Carr is not a supervisor within the meaning of section 7103(a)(10) of the Federal Service Labor-Management Relations Statute (the Statute) and, therefore, should be included in the existing bargaining unit. The Petitioner (Union) did not file an opposition to the Activity's application.
For the reasons discussed below, we find that the Activity has established that compelling reasons exist for granting the application for review pursuant to the provisions of section 2422.17 of the Authority's Rules and Regulations. Accordingly, we grant the application for review.
II. Background and ARD's Decision
The Union is the exclusive representative of a bargaining unit of professional employees, including those located at the Activity's Dennehotso Boarding School in Dennehotso, New Mexico. The Union filed a CU petition seeking to clarify the existing unit to include Patrick J. Carr, a Homeliving Specialist at the Dennehotso Boarding School. The Activity took the position that Carr is a supervisor within the meaning of section 7103(a)(10) of the Statute and should be excluded from the bargaining unit.
Carr has been employed as a Homeliving Specialist at the Activity for three and one half years. Carr's primary job responsibility is to oversee the operation of the two dormitories at the Dennehotso Boarding School. Carr also oversees the School's Title VII educational program and serves as the School's librarian. The dormitories are each managed by a Supervisory Education Technician (Dorm Manager) who has a staff of Education Aides (Dorm Aides). The two Dorm Managers report to Carr and Carr reports to the School Principal. The ARD found that the record did not establish that either the Dorm Managers or the Dorm Aides are supervisors within the meaning of section 7103(a)(10) of the Statute.
Carr's responsibilities for overseeing the dormitory operations include planning, organizing, implementing, and evaluating the School's guidance program and identifying and resolving dormitory problems. Dormitory problems usually concern the living conditions of a child in the dormitory. The initial responsibility for resolving these problems lies with the Dorm Managers. If the Dorm Managers cannot resolve a problem, they go to Carr for resolution and/or, if necessary, to the School Principal. Carr's duties include preparing the performance appraisals of the Dorm Managers and meeting with them periodically to review their performance. Moreover, Carr serves as the reviewing official on the Dorm Managers' appraisals of the Dorm Aides.
Carr makes recommendations to the School Principal on an annual basis as to whether the employment contracts of the Dorm Managers should be renewed. Thereafter, the School Principal makes her contract renewal recommendations to the School Board. The ARD found that, because Carr has never recommended that a contract of a Dorm Manager not be renewed, the exercise of this authority is routine in nature. Carr also approves sick and annual leave for the Dorm Managers. Finally, although Carr does not normally assign work, he does approve work schedules that are prepared by the Dorm Managers.
Relying on Authority decisions in Army and Air Force Exchange Service, Base Exchange, Fort Carson, Colorado, 3 FLRA 596, 599 (1980) (Fort Carson) and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Allen Park, Michigan, 35 FLRA 1206 (1990) (VAMC), the ARD found that Carr is not a supervisor because "he does not consistently exercise independent judgment in the exercise of any of the supervisory criteria enumerated in section 7103(a)(10) of the Statute." ARD's Decision at 13. The ARD also found that in the area of the assignment and direction of work, Carr's duties, including the approval of work schedules, were routine in nature and did not involve the exercise of independent judgment. As support for this finding, the ARD cited U.S. Department of the Army, Army Aviation Systems Command and Army Troop Support Command, St. Louis, Missouri, 36 FLRA 587 (1990) (U.S. Department of the Army). Finally, the ARD found that although Carr prepares the performance appraisals of the Dorm Managers, serves as the reviewing official on the performance appraisals of the Dorm Aides, and approves annual and sick leave, these duties are not among the criteria for determining supervisory status enumerated in section 7103(a)(10) of the Statute. Therefore, the ARD concluded that Carr is not a supervisor within the meaning of section 7103(a)(10) of the Statute and should be included in the existing bargaining unit.
III. The Application for Review
The Activity seeks review of the ARD's decision on the grounds that: (1) a substantial question of law is raised because of the ARD's interpretation of the Statute; and (2) the ARD's decision on a substantial factual issue is clearly erroneous.
The Activity argues that when Carr walks through the dormitories "observing and looking for problems, [he] is inherently evaluating the performance of employees with regard to discipline, assignment and reassignment, promotion, and awards" and "is essentially exercising independent judgment by deciding not to take disciplinary or other assignment action." Application for Review at 3 (emphasis in original). The Activity contends that Carr's evaluation "is part and parcel of the necessary supervisory indicia set forth in [s]ection 7103(a)(10) of the [S]tatute." Id. The Activity argues that just "[b]ecause the employees under his supervision are competent and do not require discipline and/or reassignment, it does not mean that Mr. Carr was not actively engaged in various aspects of supervision . . . ." Id. Furthermore, the Activity argues that Carr is a second-line supervisor and that the ARD inappropriately applied the criteria for a first-line supervisor to his position. Therefore, the Activity argues that the ARD's interpretation of the criteria is inconsistent with the intent of the Statute.
The Activity further contends that the ARD erroneously interpreted the facts of this case. The Activity argues that: (1) Carr's action in reviewing appraisals of the Dormitory Aides is a supervisory function directly related to assignment with potential implications for discipline; (2) writing performance ratings is an aspect of the assignment of work; (3) approving sick and annual leave involves decisions with respect to the assignment of personnel; and (4) approving work schedules is an assignment of work.
Finally, the Activity argues, contrary to the ARD, that Carr's duties