[ v23 p635 ]
The decision of the Authority follows:
23 FLRA No. 84 HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER AND FORT JACKSON, FORT JACKSON, SOUTH CAROLINA Respondent and LEROY W. HOWELL, AN INDIVIDUAL Charging Party Case No. 4-CA-50066 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions to the attached Decision of the Administrative Law Judge filed by the Charging Party, Leroy W. Howell. 1/ The complaint alleged that the Respondent had violated section 7116(a)(1) of the Statute by advising Howell that he could not file a grievance under the terms of the applicable collective bargaining agreement because he was not a bargaining unit employee. The issue before the Authority is whether the Judge properly dismissed the complaint. II. Background On September 21, 1984, Howell sent a letter to his supervisor stating that the letter served as official notification that he was grieving his change in duty hours and requesting that the individual who was the local union president represent him. The union president felt that he could only represent Howell as an individual since Howell, in the president's view, was a supervisor. Howell's supervisor returned what he termed the "letter of grievance" for clarification, stating in addition that Howell was a supervisor and must file the grievance under the Department of the Army grievance procedure. In response to the request for clarification, Howell replied, identifying the reply as step 1 of the "grievance procedure," seeking reinstatement of his previous duty hours. He also requested clarification of the status of his position as supervisory or nonsupervisory and again requested by name to be represented by the local union president. Howell's immediate supervisor maintained his original position that Howell was a supervisor and could not file a grievance under the negotiated procedure. Subsequently, Howell's supervisor processed the grievance under the agency grievance procedure and denied the grievance at the first step. He also stated, as to the request for representation, that the local union president could be a personal representative under the agency procedure, but could not represent Howell under the negotiated grievance procedure. After the rejection of his grievance by his immediate supervisor, Howell filed the unfair labor practice charge against the Respondent alleging that it had interfered with his right to file a grievance under the negotiated grievance procedure. Howell did not pursue his grievance under the negotiated grievance procedure. This choice appears to have been made freely by Howell. There is no evidence that any management official, by statement or act, attempted to interfere with, restrain, or coerce Howell from filing further appeals under the negotiated grievance procedure. And more specifically, there is no evidence that any official of the Respondent indicated to Howell that Respondent would have refused to participate in or respond to the invocation of further grievance and arbitration procedures had he or the Union chosen to invoke them. However, the Post Commander indicated in a subsequent letter to Howell that he also supported the position taken by Howell's supervisor. III. The Judge's Decision The Judge dismissed the complaint on the basis that Howell was a supervisor and that consequently the Respondent did not violate the Statute by refusing to process his grievance under the negotiated grievance procedure. IV. Exceptions The Charging Party filed exceptions to the Judge's dismissal of the complaint essentially arguing that the Judge erred by determining that he, Howell, was a supervisor. V. Analysis The Authority adopts the Judge's conclusion that the complaint must be dismissed, but not for the reasons stated by the Judge. Instead, the Authority finds that there was no violation in the circumstances of this case because the Respondent did nothing more than assert and maintain its position that Howell was a supervisor who was not covered by -- and therefore could not process a grievance under -- the negotiated grievance procedure. An agency does not impede or obstruct the submission of unresolved grievances to binding arbitration or otherwise violate the Statute by maintaining a position in processing an employee's grievance that the employee is a supervisor, even if the agency later is found to have been incorrect. See Harry S. Truman Memorial Veterans Administration Hospital, Columbia, Missouri, 11 FLRA 516 (1983), in which the Authority held that an agency has not impeded or obstructed the submission of unresolved grievances to binding arbitration merely by asserting that the matter in dispute was not grievable or arbitrable. In this case, the essence and substance of the Respondent's conduct was an assertion of its position that the grievance was not subject to the negotiated grievance procedure. Although the Respondent acted on the dispute under the terms of the agency grievance procedure, the General Counsel has failed to establish that the Respondent impeded or obstructed the processing of the grievance under the negotiated procedure. Rather, it would appear that Howell's immediate supervisor merely maintained his original position that Howell, as a supervisor, could not file a grievance under the negotiated procedure. In this regard, the Authority notes that after the rejection of his grievance on that basis, Howell did not attempt to continue processing the grievance under the subsequent steps of the negotiated grievance procedure or seek to have the Union invoke arbitration on his behalf. Instead, he directly filed an unfair labor practice charge. It is unlikely that had Howell pursued his grievance and exhausted his appeals under the negotiated grievance procedure, that the matter would have been resolved in arbitration. Both the Union and the Agency were in agreement that he was a supervisor. /2/ Nevertheless, the only avenue available to him under the Statute and the parties' collective bargaining agreement was to exhaust the steps of the negotiated grievance procedure and then attempt to persuade the Union to invoke arbitration to resolve his grievance over the change in his hours of work. If Howell had succeeded, the arbitrator would have had for resolution the collateral threshold grievability/arbitrability issue concerning whether Howell was in the bargaining unit or excluded as a supervisor. The Authority has held in this regard that an arbitrator may make a factual determination regarding the bargaining unit status of a grievant in the course of deciding whether the arbitrator has jurisdiction to resolve the grievance under the negotiated grievance procedure. National Archives and Records Service, General Services Administration and Local 2578, American Federation of Government Employees, AFL-CIO, 9 FLRA 381, 383 (1982). The Authority cautioned, however, that the negotiated grievance procedure and arbitration may not be used in place of a clarification of unit petition. The Authority has found that an arbitrator may not determine the bargaining unit status of an individual where the issue of status is not a collateral question of grievability but instead is the essential issue of the grievance. Office of Hearings and Appeals, Social Security Administration, Department of Health and Human Services ana Local 3615, American Federation of Government Employees, AFL-CIO, 20 FLRA No. 96 (1985). Of course, the Union never invoked arbitration and the Respondent never indicated that it would refuse to participate in such a proceeding. While we thus agree with the Judge's conclusion that the complaint must be dismissed, we conclude that he need not and should not have made a unit determination as to Howell's status and resolved the case on that basis. It is appropriate in certain circumstances for an Administrative Law Judge to make unit determinations within the context of an unfair labor practice proceeding. 3/ However, in this matter the Judge's supervisory status finding was not germane or necessary to his unfair labor practice determination, and should not have been made in the context of this proceeding. Rather, a question of an individual's bargaining unit status and entitlement to use the negotiated grievance procedure is a question of grievability and arbitrability for resolution by an arbitrator when the question is raised as a collateral issue to a grievance otherwise properly brought under the negotiated grievance procedure. See, for example, Harry S. Truman Memorial Veterans Administration Hospital, Columbia, Missouri, 11 FLRA 516 (1983). VI. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing, finds that no prejudicial error was committed, and accordingly affirms those rulings. The Authority has considered the Judge's Decision, the positions of the parties and the entire record, and adopts the Judge's findings and conclusions only to the extent consistent with this decision. For the reasons set forth above, we conclude that the Respondent's continued insistence that Howell was a supervisor and was not entitled to use the negotiated grievance procedure was not violative of the Statute. Thus, the complaint must be dismissed. ORDER The complaint in Case No 4-CA-50066 is dismissed. Issued, Washington, D.C., October 21, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 4-CA-50066 HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER AND FORT JACKSON, FORT JACKSON, SOUTH CAROLINA Respondent and LEROY W. HOWELL, AN INDIVIDUAL Charging Party Michael T. Russell, Esquire Ms. Virginia Combs For the Respondent Richard S. Jones, Esquire For the General Counsel Mr. Leroy W. Howell Pro se Before: WILLIAM B. DEVANEY Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C Sec. 7101 et seq., 1/ and the Final Rules and Regulations issued thereunder, 5 C.F.R. Sec. 2423.1, et seq., concerns whether Mr. Leroy W. Howell was a supervisor within the meaning of Sec. 3 (a)(10) of the Statute. For reasons set forth hereinafter, I find that Mr. Howell was a supervisor and, accordingly, Respondent did not violate Sec. 16(a)(1) by refusing to entertain Mr. Howell's grievance under the negotiated grievance procedure. 2/ This case was initiated by a charge filed on November 1, 1984 (G.C. Exh. 1(a)). The Complaint and Notice of Hearing issued on January 25, 1985 (G.C. Exh. 1(c)), the hearing to be held on March 19, 1985, at a place to be designated; and by Order dated February 21, 1985, the place of hearing was designated (G.C. Exh. 1(f)), pursuant to which a hearing was duly held on March 19, 1985, in Columbia, South Carolina, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, and were afforded opportunity to present oral argument. At the close of the hearing, April 22, 1985, was fixed as the date for mailing post-hearing briefs and the General Counsel and Respondent 3/ each timely filed a brief, received on, or before, April 24, 1985, which have been carefully considered. Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions: Findings and Discussion Sec. 3(a)(10) of the Statute defines "supervisor" 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 judgement, except that, with respect to any unit which includes firefighters or nurses, the term "supervisor" includes only those individuals who devote a preponderance of their employment time to exercising such authority;" Mr. Leroy W. Howell, the Charging Party, has been employed at Fort Jackson since October 29, 1967. In 1982, Mr. Howell's title was "Lead Sports Specialist"; but on August 8, 1982, his title was changed to "Supervisory Sports Specialist" (G.C. Exh. 2). At that time, Mr. Howell was, as he testified,". . . in charge of the Morale Support Gymnasium (Lee Field House). I had control of the Gymnasium, 1 managed the gymnasium, I directed the work force there and I had a staff which comprised of sometimes 8 to 10 military and 3 civilians. . . ." (Tr. 35). In December, 1982, Mr. Howell left Fort Jackson for an overseas assignment which was expected to last at least three years; however, because of illness, Mr. Howell returned to Fort Jackson in January, 1984, in a sick leave status, and underwent heart by-pass surgery in January, 1984, and in July, 1984, had double hernia surgery. As a result, except for limited periods and restricted activity, Mr. Howell did not return to full duty, full time until late August, 1984. When Mr. Howell left for overseas duty his position of Supervisory Sports Specialist remained encumbered for him upon his return from the overseas assignment. The position of Supervisory Sports Specialist was filled in the fall of 1983 by Dr. Carporvitz (Tr. 158). In December, 1983, the Physical Activities Branch (Res. Exh. 8), now Recreation Division (Res. Exh. 7), gave up Lee Field House (Moral Support Gymnasium) and received another building, Perez Center, several blocks from Lee Field House (Tr. 172); however, in December the Perez Center was being used temporarily by the Nursery (Tr. 226). It was planned that Perez Center would be operated as a health spa type facility for physical fitness and, specifically, be designed and constructed to provide privacy, especially for females (Tr. 172A). Extensive renovation was undertaken and the Perez Center was not opened until May, 1984 (Tr. 172-172A). Initially, Dr. Carporvitz, as had Mr. Howell prior to his departure, was in charge of Lee Field House and had under his supervision Messrs. Cook and Trakas (both GS-5's), Mr. Mitchell (GS-3) and two full-time military physical fitness specialists (an E-5 and an E-3), which was essentially the same complement as had been directed by Mr. Howell - indeed both Mr. Cook and Mr. Trakas had been under Mr. Howell's supervision and, while Mr. Howell testified he had three civilians, Mr. Mitchell did not come over into Sports until 1983. With the loss of Lee Field House, in December, Dr. Carporvitz was placed in charge of Outdoors Recreation and of Perez Center, although, as noted, Perez Center did not become an operating facility until May, 1984, and Messrs. Cook, Trakas and Mitchell, after the loss of Lee Field House, worked entirely on grounds maintenance and on Outdoors Recreation facilities. Lt. Colonel Gibson, Mr. Howell's and Dr. Carporvitz's overall supervisor (Tr. 154) testified, without contradiction, that Dr. Carporvitz functioned as a supervisor (Tr. 135, 162, 163, 164, 166, 167). Mr. John Everett, who, as Sports Director, had been Mr. Howell's immediate supervisor, left in August, 1983 (Tr. 129, 130). He was succeeded by Mr. William John Rashleigh who began work in January, 1984, shortly before Mr. Howell returned (Tr. 221). At, or shortly after, Mr. Rashleigh's arrival, Mr. Trakas was transferred to Mr. Rashleigh's supervision (Tr. 183, 222). Col. Gibson, a very credible witness, testified that when Mr. Howell arrived in January, 1984, he offered him one of two positions: either Dr. Carporvitz's position (new Perez Fitness Center and Outdoor Recreation) or Supervisor of Weston Lake. Col. Gibson stated that Mr. Howell indicated that he wanted his old position back, which was essentially the one that Dr. Carporvitz had, and that he, Col. Gibson, said ". . . fine, you have that, and Dr. Carporvitz will go out to Weston Lake". (Tr. 172B). 4/ Accordingly, Mr. Howell, nominally took over both the Perez Center and Outdoor Recreation in January, 1984; however, because Mr. Howell was on sick leave, and shortly thereafter had heart by-pass surgery, he was unable to undertake the coordination and supervision of the extensive renovation project to get the Perez facility ready for operation (Tr. 174). Subsequently, Col. Gibson decided to recruit a full time manager for the Perez Fitness Center and to remove those duties from Mr. Howell, leaving him with Programming and Supervising the Outdoor facility section (Tr. 174). Mr. Howell testified that he did not "even" report for work until March 15, 1984, "or somewhere around there". (Tr. 92). From the time Mr. Howell reported to work, only Mr. Cook remained full time under his supervision, although from time to time military personnel were assigned on detail and, later, during the summer, he had CETA employees. Mr. Cook left in June, 1984 (Tr. 84), for employment with the Columbia Post Office (Tr. 133). Mr. Trakas' job had been abolished shortly before Mr. Cook's departure (Tr. 201) and when Mr. Cook left, Mr. Trakas, on a non-competetive basis, "rolled over" to the vacant position (Tr. 176-177) so that Mr. Howell's staff remained at one full time civilian employee. As noted above, Mr. Howell was on sick leave again from July 17 to August 27, 1984 (Tr. 91). At least two other full time positions are authorized for Mr. Howell's staff but due to lack of appropriations remain unfilled (Tr. 178-179). With the beginning of the new fiscal year in October, 1984, recruitment was undertaken to fill one of the authorized Recreation Aid slots. Mr. Howell testified that Mr. Rashleigh recommended that he, Howell, hire a Mr. Russell (Rusty) Smith (Tr. 51); but Mr. Howell knew that Mr. Smith had had trouble with his supervisors and, after interviewing Mr. Smith, Mr. Howell declined to hire Mr. Smith and asked for a new list with at least three names on it (Tr. 52-53). The recruitment action was on-going at the time of the hearing; but it is clear that Mr. Howell has the responsibility to select, and will select, the new member of his staff (Tr. 178-179). Col. Gibson stated that, because of the continuing shortage of appropriated funds, the position will now be filled as a non-appropriated fund position. Conclusions It is clear that Mr. Howell's position description clothes him with all authority of a supervisor. General Counsel asserts that notwithstanding his apparent authority, i.e., the duties specified in his job description, Mr. Howell has never exercised sufficient authority to constitute him a supervisor. Thus, General Counsel asserts that Mr. Howell has never made an annual performance appraisal for any employee. Mr. Cook stated that Mr. Howell was his supervisor; but was "not sure" and couldn't remember (Tr. 134) whether Mr. Howell ever signed any of his performance appraisals. Mr. Rashleigh testified that he had seen a performance appraisal for Mr. Cook signed by Mr. Howell before Mr. Howell left for his overseas assignment (229-230). While it is true that no performance appraisal for Mr. Cook signed by Mr. Howell was introduced as an exhibit, it is at least equally significant that no performance appraisal for any employee, i.e., Cook, Trakas, Mitchell or full-time military sports specialists, was shown to have been made after Mr. Howell was made a supervisor on August 8, 1982, and prior to his departure for Europe in December, 1982. Stated otherwise, Mr. Howell was a supervisor only from August 8, 1982, until his departure in December, 1982, and there is no evidence whatever that performance appraisals were made by any other supervisor for any employee under his supervision after he became a supervisor in August until he left in December, which would have detracted seriously from his having been a true supervisor. On the other hand, if no performance appraisals were "due" during this period, the fact that Mr. Howell had no occasion to appraise employees would be meaningless. It is true that Mr. Howell has not made a performance appraisal for Mr. Trakas since Mr. Trakas was assigned to him in June, 1984; but the record is clear that he has not done so for the simple reason that none was "due" for Mr. Trakas. It is also clear that Mr. Howell will appraise Mr. Trakas in the future. More important, Mr. Howell, as Mr. Cook's then first line supervisor, did decide three grievances which had been filed by Mr. Cook 5/ (Res. Exh. 2, 3 and 4). Mr. Howell testified that he told Col. Gibson ". . . I can help you get rid of those hang-over grievances" (Tr. 61); and Mr. Howell wrote the draft of each letter. The fact that Mr. Kinlaw, then a Labor Relations Specialist, put each in proper format does not detract from the fact that Mr. Howell made each decision (Tr. 258 - 259). Mr. Howell prepares schedules for his employees and, in doing so, can and does change the normal duty hours to meet changing needs. Having scheduled Mr. Cook's hours, Mr. Howell, shortly before Mr. Cook left Fort Jackson in June, 1984, declined to change his hours in the belief that two week notice was required (Tr. 247). Mr. Rashleigh believed the Regulations permitted hours of duty to be changed without two weeks notice and changed Mr. Cook's hours when he was needed to handle a boxing smoker. When Mr. Cook filed a grievance, Mr. Howell declined to act as the step 1 supervisor ". . . because . . . I think he agreed with the grievance and therefore didn't want to be involved in making a judgement" (Tr. 229) and Mr. Rashleigh acted on it (Tr. 229, 247-248). However, even in this instance, Mr. Howell exhibited independent judgment by refusing to take action he believed wrong even though his supervisor disagreed and Union President Brown agreed with Mr. Rashleigh's action (Tr. 248). Mr. Trakas testified that Mr. Howell is his supervisor; Mr. Howell does direct the work of Mr. Trakas, detailed military, and CETA employees; Mr. Howell can, and does recommend overtime (Tr. 248-249); and Mr. Howell has shown wholly independent judgment in selecting a new employee for his staff. Mr. Howell has the authority to exercise all functions of a supervisor, has exercised such authority when required, e.g., in deciding grievances and employing a new staff member, and will exercise other authorized supervisory duties as they arise, e.g., making employee appraisals. The fact that a supervisor has only one employee under his supervision does not mean that such person is not a supervisor within the meaning of the Statute. Headquarters III Corps and Fort Hood, Fort Hood, Texas, 13 FLRA No. 84, 13 FLRA 479 (1983); The Adjutant General, Delaware National Guard, 9 FLRA No. 1, 9 FLRA 3, 9 (1982). Here, of course, Mr. Howell not only supervises one full-time employee, Mr. Trakas, but a second full-time employee is being recruited for his staff, with a third full-time slot being authorized and awaiting only the availability of funds. In addition, Mr. Howell supervises military personnel on detail 6/ and CETA, or equivalent, employees. Accordingly, I conclude that Mr. Howell was, and is, a supervisor within the meaning of the Statute and, therefore, was not subject to the terms of the negotiated agreement and Respondent did not violate the Statute by refusing to entertain his grievance under the negotiated agreement. Therefore, I recommend that the Authority adopt the following: ORDER The Complaint in Case No. 4-CA-50066 be, and the same is hereby, dismissed. WILLIAM B. DEVANEY Administrative Law Judge Dated: May 20, 1985 Washington, DC --------------- FOOTNOTES FROM DECISION AND ORDER$ --------------- 1/ The Respondent filed a motion to dismiss the exceptions. However, no basis is provided for dismissing the exceptions under the Authority's Rules and Regulations. 2/ Similarly, since there was no disagreement between the exclusive representative and the activity -- the parties to the collective bargaining relationship -- concerning the composition of the unit for which the Union was certified, a clarification of unit (CU) proceeding would be unavailable. See section 2422.1(d) of the Authority's Rules and Regulations, which only provides for the filing of a CU petition "by an activity or agency or by a labor organization which is currently recognized by the activity or agency as an exclusive representative." 3/ See, for example, Internal Revenue Service Seattle District, 12 FLRA 324 (1983) and National Archives and Records Service and National Archives Trust Board, General Services Administration, Washington, D.C., 9 FLRA 413 (1982), wherein the Authority found that management violated section 7116(a)(1) and (8) of the Statute by removing employees from dues withholding in the erroneous belief that the employees had become supervisors. --------------- FOOTNOTES FROM DECISION$ --------------- 1/ For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the Statute reference, e.g., Section 7116(a)(1) will be referred to, simply, as "Sec.16(a)(1)". 2/ Mr. Howell declined to process his grievance under the Department of Army grievance procedure. (Tr. 20). 3/ Respondent submitted a single copy of its brief, entitled "Closing Argument" rather than an original and four copies required by Sec. 2423.25 of the Regulations. 4/ Dr. Carporvitz left abruptly at the end of January, 1984 (Tr. 221) for a better paying position in Manila (Tr. 199-200). 5/ The grievances appear to have been filed March 19, 1984. In view of Mr. Howell's absence on sick leave, it is understandable that Mr. Cook was uncertain who his supervisor was at that time. Each of Mr. Howell's decisions is dated 3 March 1984 which date obviously is incorrect. In all probability the date of each decision was March 30, 1984, or possibly April 2-5, as each was received by the Civilian Personnel Office on April 5, 1984, at 3:15 p.m. 6/ In view of the wording of the Statute which excludes "a member of the uniformed services" as an employee (Sec. 3(a)(2)) and the definition of supervisor to supervise "employees", if a person supervises only military personnel, that person is not a supervisor within the meaning of the Statute; however, if that person supervises one or more employees, then the supervisory authority over military personnel may also be considered.