United States, Department of Energy, Western Area Power Administration, Lakewood, Colorado (Agency) and American Federation of Government Employees, AFL-CIO (Union)

[ v60 p6 ]

60 FLRA No. 2

UNITED STATES
DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
LAKEWOOD, COLORADO
(Agency)

and

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

DE-RP-02-0026
DE-RP-02-0027
DE-RP-02-0036

_____

ORDER GRANTING
APPLICATION FOR REVIEW

June 14, 2004

_____

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

I.      Statement of the Case

      This case is before the Authority on an application for review filed by the Agency of the Regional Director's (RD's) decision under § 2422.31 of the Authority's Regulations. No opposition was filed by the Union.

      Although the RD decided the bargaining unit status of eleven positions in resolving the petitions, only one of those determinations is at issue in this application. For the following reasons, we find that the RD failed to apply established law. Accordingly, we grant the Agency's application for review and direct the RD to clarify the unit to exclude the position.

II.     Background and RD's Decision

      The Union filed consolidated petitions for review seeking to clarify its bargaining units with respect to the status of 11 positions. The RD found that ten of the eleven employees encumbering these positions were supervisors within the meaning of § 7103(a)(10) of the Federal Service Labor-Management Relations Statute (the Statute) [n1] and should be excluded from the bargaining units pursuant to § 7112(b)(1) of the Statute. [n2]  The Agency's application seeks review of the RD's decision concerning the Lead Electronics Engineer position, encumbered by William Neu, that was not excluded as supervisory from the unit. In this respect, the Agency's application seeks review of Neu's position solely on the basis of his duties involving the assignment and reassignment of work. Thus, as relevant here, we have set forth only the RD's findings and conclusions with respect to Neu's duties in assigning and reassigning work.

      The Agency is a component of the Department of Energy. The Agency's mission involves marketing and transmitting reliable, cost-based hydroelectric power and related services within a 15-state region of the central and western United States. RD's Decision at 4-5. The Agency also operates and maintains transmission systems, including transmission lines, substations, and other related facilities.

      Neu works in the Protection and Communication Maintenance Division. Neu occupies the Lead Electronics Engineer position in Electronic Equipment Craftsmen group/component of the division, which consists of three Electronics Engineer team members. The engineers in the Electronic Equipment Craftsmen group, including Neu, maintain the communication systems such as car radios and microwave equipment on mountaintops and new facilities. Each team member has expertise in different areas; the representative team member's main areas of expertise involve VHF radio systems and battery backup systems and chargers. [n3]  The other two members have expertise in fiber optics and microwave installations, respectively.

      The RD found that Neu's team lead duties largely involve the assignment and tracking of the component's work. As relevant here, the RD found that

The annual work assignments described by Neu as requiring discretion (with regard to workload and timeliness) were limited in number - that is, 30-35 projects, divided among four people. Of [ v60 p7 ] these assignments, workload or timeliness concerns are either nonexistent or sufficiently minimal as to allow Neu to routinely assign work consistent with each team member's separate area of expertise. The evidence also suggests that, to some extent, Neu solicits volunteers at staff meetings from whoever thinks they have time to handle an assignment. The other projects described, and smaller tasks, do not indicate the use of independent judgment, in that they are assigned, for example, to the individual who handled previous, related work, or, as Neu stated, to the first person that he sees. Reassignment of work is minimal, and on the one occasion where it occurred in response to complaints, Neu collaborated with his supervisor on how to proceed. The evidence indicates that Neu's assignment and monitoring of project priorities are consistent with established guidelines and deadlines. The hearing also established that team members function as professional[s] and experts in their field and that their work requires and receives little if any instruction or review.

Id. at 35.

      Applying Authority precedent concerning supervisors under § 7103(a)(10) of the Statute, the RD concluded that "Neu's efforts in assigning and directing work . . . demonstrate a leadership role short of the statutory criteria of a supervisor, inasmuch as there is insufficient evidence to demonstrate that he consistently exercises independent judgment in assigning or directing work." Id.

III.     Agency's Application for Review

      The Agency maintains that review is warranted because established law or policy warrants reconsideration, and that there is a genuine issue over whether the RD has failed to apply established law, and has committed a clear and prejudicial error concerning a substantial factual matter. [n4] Application at 1-2. The Agency maintains that the RD erred in finding that there was insufficient evidence demonstrating that Neu consistently exercises independent judgment in assigning or directing work. In this respect, the Agency contends that the RD "discounts Mr. Neu's exercise of judgment because a good portion of the time the assignments are eventually made to the team member who already possesses the requisite expertise." Id. at 5. In support of its argument that Neu exercises judgment in assigning every project, the Agency points to Neu's testimony that assigning work involves an "independent decision" or "conscious evaluation" as to who gets assignments based on workload and expertise. Id. at 5 (citing Tr. at 1724-25, 1732-33).

      The Agency also maintains that the RD "seemed to be unduly influenced by selective testimony of the [representative] team member[.]" Id. at 6. In this respect, the Agency notes that the RD refers to Taylor's testimony that assignments were made by "consensus" and that Neu "never assigned him a project." Id. (citing RD's decision at 33). However, the Agency contends that the RD "completely overlooked testimony of Taylor that essentially contradicts" the statements relied upon by the RD. The Agency contends that in subsequent testimony, Taylor "admitted that he had inaccurately described the situation and that Mr. Neu does give him assignments with deadlines . . . [that] are not group decisions." Id. (citing Tr. at 1752-53, 1764). The Agency claims that Taylor testified that Neu sets and has the final say regarding priorities for the team members. Id. (citing Tr. at 1768-69). The Agency contends that the spreadsheet maintained by Neu represents additional proof that Neu independently exercises judgment in making assignments. Based on such evidence, the Agency maintains that the RD's finding represents a prejudicial factual error and a failure to apply established law. Id. at 7 (citing United States Dep't of Veterans Affairs, Veterans Admin. Med. Ctr., Allen Park, Mich., 35 FLRA 1206 (1990) and 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)).

      In addition, the Agency maintains that the RD erred in downplaying Neu's supervisory responsibilities in reassigning work by finding that such reassignments were "minimal" and focused on one occasion when Neu collaborated with his supervisor concerning the workload of a particular team member. However, the Agency claims that Neu testified that he reassigned [ v60 p8 ] projects five to six times a year based on workload or other considerations. Id. (citing Tr. at 1695). Lastly, the Agency contends that the RD failed to mention Neu's testimony that he arranged for team members to work on Fridays, which is significant in further establishing Neu's supervisory status. Id. at 8 (citing Tr. at 1707).

IV.     Analysis and Conclusions

      Applying the definition of "supervisor" set forth in § 7103(a)(10) of the Statute, 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. Nat'l Mediation Board, 56 FLRA 1, 7-8 (2000) (NMB) (citing Army and Air Force Exchange Service, Base Exchange, Fort Carson, Fort Carson, Colo., 3 FLRA 596, 599 (1980)). "An 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.

      The Agency contends that there are genuine issues over whether the RD has failed to apply established law, and has committed a clear and prejudicial error concerning a substantial factual matter by finding that Neu is not a supervisor based on his assignment and reassignment of work to team members. In this respect, the Agency maintains that the RD erred in finding that reassignments of work by Neu are "minimal" by focusing only on one occasion where Neu collaborated with his supervisor on resolving the matter. Also, the Agency argues that the RD erred in finding that there was "insufficient evidence [to] demonstrate that Mr. Neu consistently exercises independent judgment in assigning or directing work." Application at 4 (citing RD's Decision at 35). In this respect, the Agency relies primarily on Aviation Systems Command in support of its argument that Authority precedent demonstrates that Neu is a supervisor.

      Based on our review of the entire record, and as explained below, we find that the RD failed to apply established law.

      In Aviation Systems Command, the Authority addressed the supervisory status of several team leaders in Electronics Engineer positions. Generally, in Aviation Systems Command, with respect to all five of the supervisory team leaders, the Authority found that these team leaders consistently exercised independent judgment in assigning work that was not routine in nature where the team leaders considered a number of determinative factors such as the priority of assignments, the competence or capability of team members, the expertise and experience of team members, the equity of workload distribution, and the availability of team members. As relevant here, the Authority found that the assignment and reassignment of work by Electronics Engineer team leader Rai was not routine and involved the consistent exercise of independent judgment where the team leader consistently assigned work based on "his discretion as to the nature of the work and the experience of the team members[,]" and reassigned work among team members once a month or every two months based on a reassessment of the workload and new priorities. Aviation Systems Command, 36 FLRA at 594. Conversely, in Aviation Systems Command, the Authority found that the two team leaders who assigned work based solely on the type of equipment, project or system with which the work was associated, and normally did not reassign or shift initial work assignments, did not consistently exercise independent judgment in assigning work and were not supervisors. Id. at 596-97.

      We find that the RD failed to apply established law as set forth in Aviation Systems Command in assessing whether Neu consistently exercises independent judgment in the assignment of work, as distinguished from assigning work in a routine fashion. We find that unlike the non-supervisory team leaders in Aviation Systems Command who assigned work to members based solely on one criterion such as the type of work, Neu considers a number of determinative factors such as the team members' expertise in a particular area, as well as workload availability and work priorities in assigning work. Like the team leader Rai in Aviation Systems Command, we find that the record evidence in this case sufficiently demonstrates that Neu consistently exercises independent judgment in considering such factors as the team members' experience and expertise, as well as workload availability and work priorities. In this respect, we note that Neu agreed with the hearing officer's assessment at one point in his testimony that 80 percent of the time assignments are made in an "automatic" manner based on a team member's expertise "without particularly any other considerations[.]" See Tr. at 1732. However, Neu clarified, at that same point in his testimony, as well as throughout his entire testimony, that in assigning all work he independently or consciously considers the team members' expertise, their availability and workload priorities. See id. at 1733, 1684-85, 1691. [ v60 p9 ]

      Similarly, the testimony of Neu's supervisor demonstrates that Neu considers and weighs the expertise of team members, their availability, work priorities and employee development when he assigns work. See Tr. at 1671-72. Moreover, review of Neu's complex spreadsheet of all the major projects handled by the group, which reflects the projected deadlines for completion, the levels of workload priority, the percentage of the project that has been completed to date and the respective team members assigned to specific projects, further supports the testimony noted above that Neu considers the team members' expertise, their availability and workload priorities in assigning these projects. See Exhibit 156. Also, we note that Neu's testimony that in response to his supervisor's request, he met with the engineers from his group and ensured that someone in the group would work on Fridays, which had been the group's day off, provides further support that Neu assigns work in a non-routine fashion as a supervisor. See Tr. at 1707.

      We find that the RD's primary reliance on the fact that 80 to 90 percent of the projects were within the team members' particular expertise is misplaced under established precedent such as Aviation Systems Command in assessing whether Neu consistently exercised independent judgment in assigning work. In this respect, the fact that Neu ultimately assigns 80 to 90 percent of the projects to members in their area of expertise does not negate the fact that Neu engages in an independent evaluative process prior to assigning the work by considering the team members' expertise and experience, the availability of members and the priority of the projects.

      In addition, we find that the RD's assessment of Neu's reassignment of work is not consistent with Aviation Systems Command. In this respect, Neu's record testimony, which is undisputed, establishes that he reassigns projects five to six times for the year based on workload and priority considerations. See Tr. at 1695-96. Here, given the fact that Neu assigns only 30 to 35 major projects per year, we find that five to six reassignments (approximately 15 to 25 percent of the projects) based on workload and priority concerns is not "minimal" as the RD concluded. In this respect, we find that Neu's level of reassigning projects is analogous to that of the supervisory team leader Rai in Aviation Systems Command, who reassigned work once a month or every two months, and is inconsistent with that of the non-supervisory team leaders in that case who normally did not reassign work. Cf. United States Dep't of Labor, Wash., D.C., 59 FLRA 853 (2004) (Authority found that the employee in dispute was analogous to non-supervisory leaders in Aviation Systems Command given employee's testimony that he assigned work to employees who did that particular work on a routine basis and that he did not reassign or change work priorities).

      Based on Authority precedent and the record evidence discussed above, we find that Neu is a supervisor within the meaning of § 7103(a)(10) of the Statute and that the RD failed to apply established law in reaching a contrary result. Accordingly, we grant the application for review and direct the RD to clarify the bargaining unit to exclude Neu's position.

V.     Order

      The application for review is granted. The RD is directed to clarify the bargaining unit to exclude the position of Lead Electronics Engineer, GS-0855-13, encumbered by Neu.



Footnote # 1 for 60 FLRA No. 2 - Authority's Decision

   Section 7103(a)(10) of the Statute 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[.]"


Footnote # 2 for 60 FLRA No. 2 - Authority's Decision

   Section 7112(b)(1) of the Statute provides, as relevant here, that "[a] unit shall not be determined to be appropriate . . . if it includes . . . any management official or supervisor[.]"


Footnote # 3 for 60 FLRA No. 2 - Authority's Decision

   Terry Taylor, one of the three team members, was designated by the parties as the representative of all the team members for the purposes of the hearin