49:1051(98)RO - - SBA, District Office, Casper, WY and Solidarity, U.S.A. - - 1994 FLRAdec RP - - v49 p1051
[ v49 p1051 ]
The decision of the Authority follows:
49 FLRA No. 98
FEDERAL LABOR RELATIONS AUTHORITY
UNITED STATES SMALL BUSINESS ADMINISTRATION
ORDER DENYING APPLICATION FOR REVIEW
May 19, 1994
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 Petitioner (the Union) under section 2422.17(a) of the Authority's Rules and Regulations. A representation election was conducted by mail ballot. Of the 11 valid votes counted, 6 were cast for the Union and 5 were cast against exclusive recognition. There were 2 challenged ballots, sufficient in number to affect the results of the election.
Following an investigation of the challenged ballots, the Regional Director (RD) issued her Decision and Order on Determinative Challenged Ballots. The RD found that one of the employees whose ballot was challenged is a supervisor and her ballot, therefore, should not be opened and counted. The RD found that the other employee whose ballot was challenged is not a supervisor and his ballot, therefore, should be opened and counted and an appropriate certification issued based on a revised tally of ballots.
The Union seeks review of the RD's decision insofar as the RD found that the one employee is not a supervisor. The Activity filed an opposition to the application for review. For the following reasons, we find that the Union has not established any basis for review of the RD's Decision and Order. Accordingly, we deny the application for review.
The Activity is a District Office within the U.S. Small Business Administration (SBA), Region VIII, Denver, Colorado. The District, headed by District Director James Gallogly, is made up of four divisions, one of which is the Finance and Investment (F&I) Division. The F&I Division is headed by Assistant District Director Stephen Parker.
The bargaining unit in which the election was held consists of all professional employees of the District Office. Both employees whose ballots were challenged are team leaders in the F&I Division under the supervision of Parker. R. Jean Micek is the team leader for Loan Processing (LP); David L. Denke is the team leader for Portfolio Management (PM). In addition to Micek, there are three other employees on the LP team; in addition to Denke, there are two other employees on the PM team.
The Union challenged the ballots of Micek and Denke on the grounds that they are supervisors within the meaning of section 7103(a)(10) of the Statute and, therefore, not eligible to be in the bargaining unit or to cast ballots in the election.(1) The Union also claimed that Micek and Denke are management officials within the meaning of the Statute, but withdrew that claim during the RD's investigation of the case.
III. Regional Director's Decision
A. R. Jean Micek
The RD found that Micek is a supervisor within the meaning of the Statute based on the supervisory authority that she exercises over the work of the control clerk on the LP team. The RD found that it was unnecessary to determine whether Micek exercises supervisory authority over the other LP team members. As no party filed an application for review of the RD's decision with respect to Micek, the RD's findings concerning Micek are not at issue before us.
B. David L. Denke
As team leader of the PM team, Denke is responsible for loan servicing and the liquidation of loans. Denke meets on a daily basis with the other two loan specialists on the PM team. Denke assigns the work to be done by, and sets work priorities for, the other loan specialists. The other loan specialists give progress reports at the daily meetings. Denke reviews the work of the other loan specialists to determine if the work complies with standard operating procedures (SOP) and SBA policy. Denke spends about an hour each day meeting with his team members and reviewing their work, and the rest of his time doing the same work performed by the other loan specialists.
Denke's team exceeded its goals in 1992 and Denke and the other loan assistants received cash awards. Although Denke was asked by Gallogly about the role each team member played in this success, Denke did not make the recommendations that formed the basis of any team member's cash awards.
After Parker had drafted performance standards for loan specialists, Denke provided some oral input as to the standards and assisted in editing the wording of the standards. Denke did not provide any input as to the appraisals of the other loan specialists, but did comment orally on the numerical ratings that Parker had already prepared as part of the loan specialists' 1992 appraisals.
Denke assisted Parker in drafting the qualifications requirements for filling a loan assistant position on the PM team. Denke's opinion as to the candidates for that position was sought by Parker and Gallogly.
On one occasion, Denke brought to Parker's attention conduct of a PM team member that Denke thought was unprofessional and inappropriate. Parker and Denke met with the employee and Denke, under instruction by Parker, issued a written warning to the employee.
The RD noted that the Authority has held that an employee is a supervisor if the employee consistently exercises independent judgment with regard to any one of the supervisory responsibilities set forth in section 7103(a)(10) of the Statute. On the other hand, according to the RD, the Authority has also held that employees who are in "leader" positions and are called upon to review work or assist supervisors merely because they are more senior or more experienced employees are not supervisors within the meaning of section 7103(a)(10) of the Statute. The RD noted the Authority's holding that if the individuals' review of work is only from a technical standpoint and their responsibilities are routine in nature and do not involve the consistent exercise of independent judgment, they are not supervisors within the meaning of the Statute.(2)
Applying the Authority's precedent, the RD concluded that Denke is not a supervisor within the meaning of the Statute and, therefore, that his ballot would be opened and counted. The RD found that Denke's "responsibilities in leading the team are routine, and that his assignment and review of work of the other team members in compliance with established SOPs and SBA policies do not involve the consistent exercise of independent judgment." RD's Decision at 11.
The RD noted that Denke is senior to, and holds a higher grade and is more experienced than, the other PM team members. The RD found that, although Denke assisted Parker in development of performance standards for the other loan specialists and gave Parker some input on the other team members' performance, "there was no evidence that Parker or any other management official relied on such input" in deciding on the final appraisals of the employees. Id. at 11-12. The RD further found that, although Denke assisted management in developing the qualifications and position description for the loan assistant's position, "the evidence does not demonstrate that Denke had recommending authority or any substantial influence in the final selection" of a candidate for the position. Id. at 12. The RD found nothing in the record "to demonstrate that Denke effectively recommended or was otherwise responsible for his team's performance award or other employees' awards." Id. Finally, the RD found that the one warning memo given to an employee, issued under instructions from Parker, "does not establish that Denke was acting as a supervisor." Id.
IV. Positions of the Parties
A. Union's Application for Review
The Union seeks review of the RD's decision with respect to Denke under section 2422.17 of the Authority's Rules and Regulations, alleging that: (1) a substantial question of law or policy is raised because of a departure from Authority precedent; (2) the RD's conduct of the investigation and the RD's decision and order have resulted in prejudicial error; and (3) the RD's decision on a substantial factual issue is clearly erroneous and such error prejudicially affects the Union's rights.
The Union's application for review "urges a finding that David Denke is a supervisor within the meaning of [s]ection 7103(a)(10) of the Statute. Alternatively, if the Authority deems the evidence on Denke's status to be inconclusive, the [Union] requests a remand of the case to the [RD] for further investigation[.]" Application at 2.
1. Authority Precedent
As to its first ground for review, the Union's application sets forth the RD's factual findings as to the authority and responsibilities exercised by Denke. The Union asserts that "[a]s the[se] findings in the [RD's] [d]ecision indicate, Denke exercises independent judgment in his performance as team leader of the PM team." Id. at 7. The Union argues, therefore, that it "was a departure from Authority precedent [for the RD] to find that Denke is not a supervisor." Id. at 8.
The Union argues that SOPs and SBA policies are themselves only guidelines that do not cover all situations and that supervisors, including Denke, are called upon daily to interpret those SOPs and policies. According to the Union, this interpretation is further evidence of the exercise of independent judgment by Denke.
With its application for review, the Union submitted certain documents and information in support of its arguments. As part of its submission, the Union quotes statements made by Gallogly to the RD.(3) Gallogly, among other things, stated that team leaders assign work and coordinate the work of their teams, are responsible for the quality and quantity of the team's production, and have the authority to give warnings to team members. The Union also quotes from a letter of Randall Christopherson, SBA Assistant Regional Administrator, Region VIII, to the RD. Christopherson stated that Denke is responsible for monitoring and reporting the progress of team members' assignments and provides input with regard to disciplinary action.
The Union asserts that "[c]onsidering the evidence cited above . . . it is clear that . . . [Denke] consistently exercise[s] independent judgment as to the direction and review of other employees' work" and that "it was a departure from Authority precedent for the [RD] to find that Denke was not a supervisor[.]" Id. at 14.
2. Conduct of the Investigation
As its second ground for review, the Union contends that "the conduct of the Authority investigation and related Decision and Order  ha[ve] resulted in prejudicial error." Id. at 15. The Union alleges that "most of the evidence that indicated David Denke is a supervisor was not even referred to in the Decision and Order." Id. The Union explains that the omitted evidence would show that Denke "approved leave, assigned and reviewed work, disciplined an employee, developed performance standards for his subordinates, engaged in disputes with his subordinates over the interpretation of SOPs, set work priorities, and made plans for his subordinates to complete specific assignments." Id.
The Union refers to Gallogly's statement to the RD concerning the responsibilities of team leaders, noting that Gallogly also stated that "[f]or the most part these matters are of independent discretion" by the team leaders. Id. The Union also notes Gallogly's statements that "[t]eam leaders are responsible for . . . their teams' performance objectives" and "for the quality and quantity of work produced by their teams." Id. The Union states that the RD's investigation "did not adequately address this evidence." Id. at 16.
The Union also alleges that, because Gallogly's letter to employees of February 8, 1993, suggested what answers employees should give the Authority during the investigation, the letter "had the effect of tainting and unduly influencing the Authority's investigation." Id. The Union states that, during the Authority's investigation, Janet Bell, the Union's representative in Casper, Wyoming, was subject to two proposed removals and was suspended for 14 days.(4) The Union argues that "such activity, combined with" Gallogly's letter, "could have had a coercive effect upon the willingness of SBA employees to provide more information" to the Authority. Id.
The Union concludes that the "conduct of the Authority investigation . . . has resulted in prejudicial error since a full and fair investigation would have revealed that David Denke is a supervisor within the meaning of the Statute." Id. at 16-17.
3. Factual Issues
As its third ground for review, the Union alleges that the RD's decision on a substantial factual issue is clearly erroneous and that such error prejudicially affected the Union's rights.
The Union refers again to the evidence it relies on to support its first two grounds for review. That is, the Union alleges that record evidence, including evidence not referred to by the RD, shows that Denke approved leave, assigned and reviewed the work of other loan specialists, disciplined an employee, developed performance standards, interpreted SOPs, and set work priorities and was responsible for the completion of the work. Specifically, the Union argues that "[o]ne erroneous finding [of the RD] is that David Denke is not a supervisor[.]" Id. at 17. "Another erroneous finding is that Denke's assignment and review of his subordinates' work do not involve the consistent exercise of independent judgment." Id.
The Union contends that "[these] error[s] prejudicially affected the rights of a party because, but for these erroneous findings, [the Union] would have won the election[.]" Id. at 18. The Union concludes by urging the Authority to either find that Denke is a supervisor or remand the case to the RD for further investigation.
The Activity asserts, contrary to the Union's contentions, that the facts in this case support the RD's findings and conclusions as to Denke. The Activity argues that the RD relied on appropriate Authority precedent and "merely decided, based on the evidence, that  Denke did not exercise work assignment and review duties that were more than only routine in nature and that such work did not meet the standard of 'consistently exercise independent judgement.'" Opposition at 2.
The Activity urges that particularly appropriate among the cases relied on by the RD are U.S. Department of the Treasury, Office of Chief Counsel, 32 FLRA 1255, 1258-60 (1988), in which a leadman reviewed the work of other employees for compliance with agency procedures; and Army and Air Force Exchange Service, Base Exchange, Fort Carson, Fort Carson, Colorado, 3 FLRA 596, 599 (1990), in which a leadman, under instruction from his supervisor, reprimanded an employee. In both cases, the Authority found that the duties of the leadmen did not involve the exercise of independent judgment.
The Activity contests the Union's allegation that the RD conducted her investigation in a manner that resulted in prejudicial error. The Activity asserts that the investigation by the RD was thorough and the record shows that all evidence was considered by the RD. As to the allegation that Gallogly's letter of February 8, 1993, improperly influenced employees, the Activity notes that no evidence was identified by the Union to show how the letter had a coercive effect on the conduct or outcome of the investigation.
The Activity argues that, although the Union claims as error the RD's findings that Denke is not a supervisor and does not exercise independent judgment, the Union has not shown that the RD has made any factual error. The Activity contests the Union's position that allowing Denke to vote would necessarily affect the rights of employees. The Activity argues that the effects of a yet-uncounted ballot cannot be known. The Activity requests that the application for review be denied.
V. Analysis and Conclusions
We conclude, for the reasons that follow, that compelling reasons do not exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the Union's application for review.
A. Preliminary Matter
In support of its arguments, the Union submitted a letter from employee Janet Bell, a bargaining unit employee who is the control clerk in the F&I Division referred to above. Bell also is the Union's designated representative for purposes of this case. The letter is addressed to an employee of the Authority's regional office, advocating the position that Denke is a supervisor. Numerous exhibits are attached to the letter, some of which are referred to in the Union's application for review.
The Union notes that Bell's letter is dated subsequent to the RD's decision in this case, but states that "the enclosures to this letter were apparently provided to the [RD] during the course of [the] investigation." Id. at n.3. The Union states that its application for review "incorporates by reference, Ms. Bell's letter, legal arguments, and enclosures, in support of its position[.]" Id.
Section 2422.17(b) of the Authority's Rules and Regulations states, in relevant part, that "[a]n application may not raise any issue or allege any facts not timely presented to the Regional Director." A review of the record shows that all of the documents referred to by the Union were provided to the RD during the course of the investigation, with the exception of Exhibit B, Enclosure 5 (id. at 9-10) and Enclosure 22 (id. at 11). Enclosure 5 is a copy of a leave slip approved by Denke. Enclosure 22 is a memo signed by bargaining unit employee Ramona Heath, addressed "To Whom It May Concern," expressing Heath's opinion on the supervisory status of both Micek and Denke.
Because these two enclosures were not provided to the RD, we have not considered them. See U.S. Department of the Navy, Naval Station, Ingleside, Texas, 46 FLRA 1011, 1021 (1992). However, we note that the record includes copies of other leave slips approved by Denke and a written statement Heath provided to the RD that includes reference to the same matter covered in the memo. In reaching our decision in this case, we have considered Bell's letter, but only to the extent that it is consistent with the written statement Bell provided to the RD during the course of the investigation.
B. The RD's Decision Was Not a Departure from Authority Precedent
The RD correctly stated that the Authority will find that an employee is a supervisor if the employee consistently exercises independent judgment with regard to any one of the supervisory responsibilities set forth in section 7103(a)(10) of the Statute. The Union sets forth the authority and responsibilities exercised by Denke, emphasizing Denke's role in assigning work and reviewing the work of the other loan specialists and his overall responsibility for the PM team. The Union argues that the performance of those duties and responsibilities requires the exercise of independent judgment, which Denke consistently exercises because the duties are required to be performed on a daily basis.
The Union does not disagree with the RD's statement of Authority precedent. Rather, the Union argues that, by concluding from the record facts that Denke's responsibilities do not involve the consistent exercise of independent judgment, the RD has departed from Authority precedent. We find below that the Union has failed to demonstrate that the RD's decision on a substantial factual issue is clearly erroneous. Therefore, we find that the Union has failed to show that a substantial question of law or policy has been raised by the RD's decision because of a departure from Authority precedent as applied to the facts of this case.
C. The RD's Conduct of the Investigation Has Not Resulted in Prejudicial Error
The Union alleges that the RD's conduct of the investigation was prejudicial because the RD did not refer to certain evidence and because certain conduct by the Activity during the investigation had the effect of unduly influencing the employees being investigated. We find no merit in these arguments.
The Union asserts that certain evidence not referred to by the RD shows that Denke "approved leave, assigned and reviewed work, disciplined an employee, developed performance standards for his subordinates, engaged in disputes with his subordinates over the interpretation of SOPs, set work priorities, and made plans for his subordinates to complete specific assignments." Application at 15.
We find that the Union has not shown that the evidence allegedly omitted by the RD was sufficient to affect the results of her findings. Of Denke's responsibilities listed by the Union, only the fact that Denke approves leave is not specifically referred to by the RD. It is clear from the RD's decision, as set forth above, that the RD makes reference to the fact that Denke assigned and reviewed work, issued a written warning to an employee, helped develop performance standards, set work priorities, and was responsible for the completion of the work.
The RD did not mention that Denke has approved leave, and the record shows that evidence of leave approval was presented to the RD. However, this omission is not prejudicial error. The authority to approve leave is not one of the supervisory indicia listed in section 7103(a)(10) of the Statute and, standing alone, is not a sufficient basis on which to find Denke a supervisor. See Veterans Administration Medical Center, Allen Park, Michigan, 34 FLRA 423, 426 (1990).
The Union alleges that the RD did not refer to Denke's role in "disputes with his subordinates over the interpretation of SOPs." Id. The Union claims that "Denke impos[ed] his interpretation of [SOPs] on his team members." Id. at 11. The Union does not identify the basis of this claim, and we find no merit in the claim. Moreover, while the RD did not directly refer to disputes over the interpretation of SOPs, the RD found that, as part of Denke's overall authority to review work, it is Denke's responsibility to determine if the work of the team members "meets established SOPs." The RD also found that Denke "is available for questions that the team members may have," but that "if he cannot provide the answer to the question, he would consult with Parker or the Legal Division for the answer." RD's Decision at 7.
We find that the Union's reliance on Gallogly's letter to employees of February 8, 1993, to establish that team leaders exercise independent discretion as to all their responsibilities is misplaced. It is clear even from the Union's quote from the letter that Gallogly's reference to independent discretion was intended to apply only with respect to the responsibility of team leaders to balance the work of their teams and to make appointments and deal with the public. See Application at 13. None of the other statements made by Gallogly, and none of the statements made by Christopherson as to the authority of team leaders, differ to any appreciable degree from the RD's findings as to the responsibilities of Denke.
Finally, we find no merit in the Union's argument that Gallogly's letter to employees of February 8, 1993, and the alleged unlawful actions taken as to Bell, should form the basis for finding that the RD's investigation resulted in prejudicial error. A copy of Gallogly's letter to employees was submitted to the RD. The RD was also aware of the unfair labor practice charge as to Bell, and the Union, as noted above, stated that the merits of the charge are not an issue in this case. The Union does not claim that the RD was asked to reinvestigate or to consider these matters in reaching her decision. Nor does the Union show what further, or different, evidence a new investigation might produce.
In sum, we find that the Union has not shown that the RD's conduct of the investigation has resulted in prejudicial error within the meaning of section 2422.17(c)(3) of the Authority's Rules and Regulations.
D. The RD's Decision Was Not Clearly Erroneous on Any Substantial Factual Issue
The Union contends that the RD was clearly in error as to certain substantial factual findings. Specifically, the Union contends that the RD was clearly in error in finding that: (1) Denke is not a supervisor; and (2) Denke's assignment and review of his subordinates' work does not involve the consistent exercise of independent judgment.
The Union repeats its allegations that the RD did not refer to certain record evidence and that, if all the evidence were considered, the necessary conclusion is that Denke is a supervisor because his responsibilities involve the consistent exercise of independent judgment.
We have found above that, contrary to the Union, the RD did not fail to consider pertinent factual evidence. We find that the Union has not shown that any of the facts relied on by the RD in concluding that Denke is not a supervisor within the meaning of section 7103(a)(10) of the Statute were erroneous. Rather, the Union's arguments constitute mere disagreement with the emphasis the RD placed on some of her findings, and the conclusions she reached based on her findings.
In sum, we find that the Union has not shown that compelling reasons exist within the meaning of section 2422.17(c) of the Authority's Rules and Regulations for granting the Union's application for review.
The application for review is denied. The case is remanded to the Regional Director to take further appropriate action.
(If blank, the decision does not have footnotes.)
1. Section 7103(a)(10) defines a "supervisor" as:
. . . 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[.]
2. The RD cited U.S. Department of the Army, Army Aviation Systems Command and Army Troop Support Command, St. Louis, Missouri, 36 FLRA 587 (1990), and the several Authority cases discussed in that decision.
3. The Union takes these statements from a letter from Gallogly to bargaining unit employees, dated February