United States, Department of Labor, Washington, D.C. (Agency) and American Federation of Government Employees, Local 12, AFL-CIO (Union)

[ v59 p853 ]

59 FLRA No. 156

UNITED STATES
DEPARTMENT OF LABOR
WASHINGTON, D.C.
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12, AFL-CIO
(Union)

WA-RP-02-0022

_____

ORDER DENYING
APPLICATION FOR REVIEW

April 23, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on an application for review of the Regional Director's (RD's) decision under § 2422.31 of the Authority's Regulations filed by the United States Department of Labor (Agency). AFGE (Union) filed an opposition.

      Although the RD decided the bargaining unit status of fifteen positions in resolving the petition, only two of those determinations are at issue in this application for review. For the following reasons, we deny the application for review.

II.     Background and RD's Decision

      The Union filed a petition for review seeking to clarify its bargaining unit with respect to the status of fifteen positions. Before the RD, the Agency claimed that the first position at issue in this application for review, a Secretary in the Office of Automation of the Mine Safety and Health Administration of the Agency, of which Diane Blair is the incumbent, should be excluded on the ground that the incumbent is a confidential employee. Regarding the other position, a Budget Officer in the Office of Workforce Security in the Employment and Training Administration, the incumbent of which is Timothy Felegie, the Agency maintained that the position should be excluded on the ground that the incumbent is either a supervisor or a management official. The RD determined that Blair was not a confidential employee and that Felegie was neither a supervisor nor a management official and ordered that they be included in the unit. [n2] 

      Specifically, as to Blair, the RD found that her duties include filing, typing correspondence, keeping calendars current, and making travel arrangements. According to the RD, although Blair reports to the Director of Technical Services, she performs services for the entire Technical Services staff, including the Deputy Director and the Accident Reduction Program Manager. The RD determined that Blair had prepared some labor relations documents for a former Director, but found that there was no evidence as to the nature of those documents or that she had prepared such documents or participated in labor relations matters since that time. The RD also determined that Blair does not attend meetings where labor relations or personnel matters are discussed.

      Applying Authority precedent concerning confidential employees under § 7103(a)(13) of the Federal Service Labor-Management Relations Statute (the Statute), the RD concluded that the evidence did not support the conclusion that Blair has a confidential relationship with any of the managers for whom she works. [n3]  In particular, the RD found that there was no evidence that Blair regularly had access to labor relations information. In addition, the RD found that none of the managers for whom she works are significantly involved in labor relations matters. Consequently, the RD concluded that Blair is not a confidential employee within the meaning of § 7103(a)(13) of the Federal Service Labor-Management the Statute.

      With respect to whether Felegie is a supervisor, the RD found that he oversees the work of five employees, routinely distributing work to those employees based on their area of expertise and occasionally making assignments based on his assessment as to who is best qualified [ v59 p854 ] to perform the work. According to the RD, Felegie: (1) generally reviews the work of those employees for technical sufficiency; (2) drafts performance standards for the employees, but does not sign them; (3) drafts performance appraisals for the employees, but does not sign them; (4) initials employee leave requests, but does not have final approval as to those requests; and (5) makes verbal recommendations to his superior as to performance awards and promotions. As to the latter, the RD found that there was no evidence as to whether Felegie's superior accepted those recommendations.

      Applying Authority precedent as to what constitutes supervisory status under § 7103(a)(10) of the Statute, the RD found that Felegie's responsibilities with respect to the assignment of work involved essentially routine determinations and did not demonstrate that those responsibilities "require the consistent exercise of independent judgment." [n4]  RD's Decision at 27 (emphasis in original). The RD noted that evaluation and appraisals of employees performance are not specific indicia of supervisory status. The RD also noted, however, referencing United States Dep't of the Interior, Bureau of Indian Affairs, Navajo Area Office, Gallup, New Mexico, 45 FLRA 646 (1992) (Navajo Area Office), that where an individual exercises independent judgment in evaluating employee performance and that judgment is relied upon by upper-level management, a sufficient basis exists to conclude that the individual is a supervisor. The RD concluded, in this regard, that "the record does not establish that [the recommendations made by Felegie] have been accepted or relied upon by upper-level management." Id. at 27 (emphasis in original). Further, the RD found that, in the absence of any other indicia of supervisory status, the fact that Felegie initialed leave slips was an insufficient basis for concluding that he is a supervisor. Based on the record as a whole, the RD concluded that Felegie is not a supervisor within the meaning of § 7103(a)(10) of the Statute.

      Based upon her findings and conclusions as to Blair and Felegie, the RD ordered that they be included in the unit represented by the Union.

III.     Positions of the Parties

A.     Application for Review

      The Agency contends that review of the RD's decision and order is warranted as to Blair and Felegie.

      As to the RD's decision and order concerning Dianne Blair, the Agency contends that the RD "failed to apply established law to the factual record." Application for Review (Application) at 6. Noting the criteria employed by the Authority to assess whether an employee is a confidential employee, the Agency argues that those criteria are "based on a conflict of interest theory[.]" Id. In this regard, the Agency cites United States Dep't of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Ariz., 37 FLRA 239 (1990) (Yuma Projects Office), wherein the Authority found that certain secretaries were confidential employees based on the fact that they "attended management[] meetings where labor relations issues were discussed, prepared and maintained confidential files, and overheard conversations concerning labor-management negotiations." Application at 7.

      According to the Agency, as in Yuma Projects Office, Blair has advance knowledge of labor relations matters by virtue of the fact that her immediate supervisor is the responsible management official at the second step of the grievance procedure. The Agency argues that even though Blair's supervisor has not had any grievances filed against him, if a grievance should be filed, he should be able to rely on her to assist him in handling it. The Agency also contends that testimony on the record establishes that Blair prepares documents for management and maintains its files and overhears conversations involving labor relations matters.

      With respect to the RD's decision and order concerning Timothy Felegie, the Agency contends that it "conflicts with established law." Application at 2. In this regard, the Agency claims that Felegie exercises independent judgment in the assignment of work, citing Felegie's testimony concerning the discretion he exercises in assigning special projects and the fact that his supervisor does not make assignments directly to the staff without consulting with him. As to the RD's finding that Felegie only reviewed employee work for technical accuracy, the Agency cites United States Dep't of the Army, Army Aviation Systems Command and Army Troop Support Command, St. Louis, Mo., 36 FLRA 587 (1990) (Aviation Systems Command), wherein the Authority found that team leaders who review team members' work for technical accuracy demonstrated consistent exercise of independent judgment. [ v59 p855 ]

      Noting that Felegie wrote employee performance appraisals, and participated in his supervisor's discussions of those employees' appraisals, as well as Felegie's recommendations for awards and promotions, the Agency contends that the RD ignored the Authority's holding in Navajo Area Office. Further, noting that the Authority has held that the absence of authority to draft performance appraisals indicates an individual is not a supervisor, the Agency claims that the RD erred by ignoring evidence that Felegie consistently exercises independent judgment in that respect. [n5]  Finally, having argued that Felegie demonstrates the requisite indicia of supervisory status, the Agency contends that the fact that Felegie initials leave slips and attends senior staff meetings, both of which are secondary indicators of such status, is further support for the conclusion that he is a supervisor.

B     Opposition

      As to Diane Blair, the Union argues that the Agency's contention that Blair had advance knowledge of management positions on labor-relations matters is directly contradicted by the RD's factual conclusion to the contrary. The Union also maintains that the fact that Blair's supervisor might be involved in a grievance is not significant, because bargaining unit eligibility determinations are based on current duties, not on duties that may exist in the future.

      With respect to Timothy Felegie, the Union contends that the RD properly applied Aviation Systems Command to find that Felegie's review function was routine and did not involve the exercise of independent judgment. The Union also contends that the RD properly applied Navajo Area Office, finding that there was not evidence that Felegie's "evaluations are relied upon by upper-level management in taking actions to reward, promote, or discipline employees." Opposition at 4. The Union argues that the RD correctly followed Navajo Area Office in finding that, in the absence of evidence that Felegie qualified as a supervisor under the statutory indicia, the fact that he initialed leave requests was not sufficient to establish supervisory status.

IV.     Analysis and Conclusions

A.     Diane Blair  [n6] 

      The Agency contends that the RD erred in finding that Diane Blair is not a confidential employee under § 7103(a)(12) of the Statute by failing "to apply established law to the factual record." Application at 6. Under Authority precedent, an employee is confidential within the meaning of §7103(a)(12) if: (1) there is evidence of a confidential working relationship between an employee and the employee's supervisor; and (2) the supervisor is significantly involved in labor-management relations. See, e.g., NASA, Glenn Research Center, Cleveland, Ohio, 57 FLRA 571, 573 (2001) (NASA).

      Among the factors that the Authority considers when assessing whether an individual serves in a confidential capacity are whether the individual: (1) obtains advance information of management's position with regard to contract negotiations, the disposition of grievances, and other labor relations matters, see, e.g., id.; (2) attends meetings where labor-management matters are discussed, see, e.g., Yuma Projects Office, 37 FLRA at 247; (3) because of physical proximity to their supervisor, overhears discussions of labor-management matters, see, e.g., id.; and (4) has access to, prepares, or types materials related of labor-management relations, such as bargaining proposals and grievance responses, see, e.g., FDA, Region I, 6 FLRA 229, 231-37 (1981). The Authority makes its determination of unit status based on the evidence of an individual's actual duties at the time of the hearing, not on possible future assignments or duties that had been performed by the individual. See, e.g., Yuma Project Office, 37 FLRA at 245.

      Applying the criteria and factors listed above, the RD found no evidence establishing that Blair served in a confidential capacity to any manager for whom she works or that any of those individuals are involved in labor-management relations. The Agency's claim that the RD's decision as to Blair is inconsistent with Yuma Project Office is not persuasive. Unlike the secretaries in Yuma Project Office, Blair does not: (1) attend meetings at which labor-management matters are discussed; (2) routinely have access to or prepare management materials concerning labor relations or employee relations issues; or (3) routinely overhear her supervisor's most sensitive employee-related or labor-related conversations. Thus, the Agency has not established that the RD's application of existing precedent is in error or that [ v59 p856 ] her conclusion that Blair is not a confidential employee is inconsistent with that precedent.

      Accordingly, we find that the Agency has provided no grounds warranting review of the RD's decision insofar as it pertains to the status of Diane Blair as a confidential employee.

B.     Timothy Felegie  [n7] 

      The Agency contends that the RD's conclusion that Felegie is not a supervisor within the meaning of § 7103(a)(10) conflicts with established law.

      Applying the definition of "supervisor" set forth in § 7103(a)(10), the Authority has consistently held that "an employee will be found to be a supervisor if the employee consistently exercises independent judgment with regard to the supervisory indicia set forth" in that section. NMB, 56 FLRA at 7-8 (citing Army and Air Force Exchange Service, Base Exchange, Fort Carson, Fort Carson, Colo., 3 FLRA 596, 599 (1980)). "[A]n employee need exercise only one of the responsibilities set forth in § 7103(a)(10) in conjunction with independent judgment in order to be found a supervisor." Id. at 8. Where an employee's actions in connection with any of the supervisory indicia are of a routine nature, entailing the exercise of very little judgment or no consistent exercise of discretion, the employee will not be found to be a supervisor. See, e.g., NMB, 56 FLRA at 8; United States Dep't of the Treasury, Office of Chief Counsel, 32 FLRA 1255, 1259 (1988).

      Further, although performance evaluation is not listed among the supervisory indicia, an employee may nevertheless be a supervisor within the meaning of § 7103(a)(10) if that employee "exercises independent judgment in evaluating employee performance, and . . . that evaluation is relied on by upper-level management in taking an action listed among the indicia of supervisory authority . . . , thereby constituting the effective recommendation of that action[.]" Navajo Area Office, 45 FLRA at 651. The Authority also noted that "[i]t is not necessary, however, that [the employee's] evaluations and recommendations constitute management's final decision . . . , only that management rely on them in making [its final decision on a matter related to the supervisory indicia] without seeking independent information." Id. at 656-57.

      The RD determined that Felegie is not a supervisor because she found that he: (1) only assigned work on a routine basis; (2) generally reviewed work on a technical basis; and (3) did not authorize leave. The RD also found that, while there was "some evidence to indicate that Felegie has made promotion and/or award recommendations, the record does not establish that these recommendations have been accepted or relied upon by upper-level management." RD's Decision at 27 (emphasis in original).

      The Agency relies primarily on Aviation Systems Command and Navajo Area Office in support of its claim that Authority precedent demonstrates that Felegie is a supervisor. The RD's findings, which are supported by the record, however, demonstrate that Aviation Systems Command is distinguishable. In particular, consistent with Felegie's testimony that he assigned work to those who did that particular work on a routine basis, that he did not reassign work or change work priorities, that he reviewed work for accuracy and adherence to policy, the evidence indicates that his responsibilities are more akin to the individuals who were found not to be supervisors in Aviation Systems Command than those who were. Compare Aviation Systems Command, 36 FLRA at 596-97 with Aviation Systems Command, 36 FLRA at 593-96.

      The Agency also relies on Navajo Area Office, arguing that the fact that Felegie drafted performance appraisals demonstrates his supervisory status. However, Navajo Area Office, 45 FLRA at 651, holds only that the responsibility to prepare performance appraisals may indicate supervisory status where the appraisals are relied on by upper-level management in making decisions to hire, promote, reward or discipline employees. Id. In this case, the RD found that Felegie drafted performance appraisals and made promotion and/or award recommendations. See RD's Decision at 26-27. The RD also found that, under Authority precedent, "where an individual exercises independent judgment in evaluating employee performance and that evaluation is relied upon by upper-level management[,]" a sufficient basis exists to find that the individual is a supervisor. Id. at 27 (citing Navajo Area Office). Applying that precedent, however, the RD concluded that "the record does not establish" that Felegie's recommendations were accepted or relied on by upper-level management. RD's Decision at 27 (emphasis in original). In these circumstances, the Agency has not demonstrated that the [ v59 p857 ] RD's conclusion that Felegie is not a supervisor is inconsistent with Navajo Area Office[n8] 

      In sum, we find that the Agency has provided no basis warranting review of the RD's decision under § 2422.31(c)(3)(i) and (iii) of the Authority's Regulations.

V.     Order

      The application for review is denied.


APPENDIX

§ 2422.31 of the Authority's Regulations provides, in relevant part, as follows:

(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
. . . .
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
. . . .
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.

Opinion of Chairman Cabaniss, dissenting in part:

      I write separately to disagree with my colleagues' conclusion that the Agency's application provides no basis for review of the RD's conclusion that Felegie is not a supervisor. In my opinion, the Agency's arguments with regard to Felegie support the determination that the RD committed a "clear and prejudicial error concerning a substantial factual matter." 5 C.F.R. § 2422.31(c)(3)(iii). In particular, the RD failed to develop the record so as to properly apply the Authority's decision in Navajo Area Office.

      The fact that Felegie prepared employee appraisals and made recommendations to his supervisor as to promotions and awards was sufficient, under Navajo Area Office, to raise a factual issue at the hearing as to whether those appraisals and recommendations were relied on by Felegie's supervisor in connection with the statutory indicia. Under the Authority's Regulations, § 2422.18(a), a representation hearing is investigatory and not adversarial. 5 C.F.R. § 2422.18(a). The purpose of such a hearing is to "develop a full and complete record of relevant and material facts." Id. "There is no burden of proof[.]" 5 C.F.R. § 2422.18(b). Thus, the absence of dispositive evidence of the sort involved in this case is also chargeable, not just to the parties, but to the hearing officer and, by extension, the RD as well. Where the RD has not made the necessary findings to resolve a question of unit status, the Authority will remand the case to the RD for further proceedings. See, e.g., United States Dep't of Housing and Urban Development, 34 FLRA 207, 212 (1990) (citing United States Dep't of Energy, Federal Energy Regulatory Commission, 22 FLRA 3, 5 (1986)). Because the RD failed to develop the record as to the factual matter of Felegie's supervisor's, or higher-level management's, reliance on Felegie's recommendations, I would grant the application for review under § 2422.31(c)(3)(iii) of our Regulations and remand the case to the RD for the necessary factual findings and further analysis under Navajo Area Office.



Footnote # 1 for 59 FLRA No. 156 - Authority's Decision

   Chairman Cabaniss' separate opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 156 - Authority's Decision

   The RD also found that Felegie was not a management official within the meaning of § 7103(a)(11) of the Statute. The Agency does not challenge that determination in its application for review and it will not be considered further herein.


Footnote # 3 for 59 FLRA No. 156 - Authority's Decision

   The phrase "confidential employee" is defined in § 7103(a)(13) of the Statute as follows:

(13) "confidential employee" means an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations[.]

Footnote # 4 for 59 FLRA No. 156 - Authority's Decision

   As relevant herein, the term "supervisor" is defined in § 7103(a)(10) as follows:

(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 . . . .

Footnote # 5 for 59 FLRA No. 156 - Authority's Decision

   The Agency cites National Mediation Board, 56 FLRA 1 (2000) (NMB).


Footnote # 6 for 59 FLRA No. 156 - Authority's Decision

   Although the Agency does not cite the Authority's Regulations in its application for review, we interpret the Agency's claim that, as to Diane Blair, the "Regional Director failed to apply established law to the factual record[,]" and the argume