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The decision of the Authority follows:
45 FLRA No. 57
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on review of the Acting Regional Director's (ARD) decision and order on a petition for clarification of unit filed by the Petitioner, the American Federation of Teachers (AFT or Union). The Authority granted the Activity's application for review in U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office, Gallup, New Mexico, 44 FLRA 112 (1992) (Bureau of Indian Affairs).
In its petition, AFT sought to clarify its existing unit to include Patrick J. Carr, a Homeliving Specialist at the Dennehotso Boarding School. The ARD issued a decision and order finding that Carr was not a supervisor and that he should be included in the unit. The Activity's application for review sought review of the ARD's determination that Carr should be included in the unit. AFT did not file an opposition to the application for review.
We granted the Activity's application for review because it appeared that a substantial question of law or policy was raised due to the absence of, or a departure from, Authority precedent with respect to "whether the duties performed by Carr, including specifically his duties with respect to performance appraisals, constitute supervisory authority as described under section 7103(a)(10) of the Statute." Bureau of Indian Affairs, 44 FLRA at 115.
We gave the parties permission to submit briefs concerning the issue on which review was granted. Only the Activity submitted a brief. For the reasons stated below, we find that Carr is a supervisor within the meaning of section 7103(a)(10) of the Statute and conclude, therefore, that he must be excluded from the bargaining unit.
II. Background and ARD's Decision
Carr has been employed as a Homeliving Specialist at the Activity for 3 1/2 years. Carr's primary job responsibility is to oversee the operation of the two dormitories at the Dennehotso Boarding School. Carr also oversees the School's Title VII educational program and serves as the School's librarian. The dormitories are each managed by a Supervisory Education Technician (Dorm Manager) who has a staff of Education Aides (Dorm Aides). The two Dorm Managers report to Carr and Carr reports to the School Principal. The ARD found that the record did not establish that either the Dorm Managers or the Dorm Aides are supervisors within the meaning of section 7103(a)(10) of the Statute.
Carr's responsibilities for overseeing dormitory operations include planning, organizing, implementing, and evaluating the School's guidance program and identifying and resolving dormitory problems. Dormitory problems usually concern the living conditions of a child in the dormitory. Initial responsibility for resolving these problems lies with the Dorm Managers. However, if the Dorm Managers cannot resolve a problem, they go to Carr for assistance or, if necessary, to the School Principal. Carr's duties include, at the beginning of the appraisal year, discussing their performance standards with the Dorm Managers. Carr periodically meets with the Dorm Managers and reviews their performance and informs them of the level at which they are performing. Carr also prepares the performance appraisals of the Dorm Managers and serves as the reviewing official with respect to the Dorm Managers' appraisals of the Dorm Aides.
Carr makes recommendations to the School Principal on an annual basis as to whether the employment contracts of the Dorm Managers should be renewed. He also reviews the Dorm Managers' recommendations as to the renewal of the Dorm Aides' contracts and submits those recommendations to the Principal. Taking into account Carr's recommendations, the School Principal makes the final contract renewal recommendations to the School Board. Carr also approves sick and annual leave for the Dorm Managers. Finally, although Carr does not normally assign work, he does approve work schedules that are prepared by the Dorm Managers.
Relying on Authority decisions in Army and Air Force Exchange Service, Base Exchange, Fort Carson, Colorado, 3 FLRA 596, 599 (1980) (Fort Carson) and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Allen Park, Michigan, 35 FLRA 1206 (1990) (VAMC), the ARD found that Carr is not a supervisor because "he does not consistently exercise independent judgment in the exercise of any of the supervisory criteria enumerated in section 7103(a)(10) of the Statute." ARD's Decision at 13. In the area of rehiring or retaining employees, the ARD found that although Carr makes a recommendation to the School Principal on an annual basis as to whether to renew Dorm Managers' contracts, he has never recommended that a contract of a Dorm Manager not be renewed. The ARD concluded that "the exercise of this authority would appear to be routine in nature." Id. at 11.
The ARD found that Carr also reviews the Dorm Managers' recommendations that the Dorm Aides be renewed and passes on his recommendations to the School Principal. The ARD noted that the Principal makes the final decision on the recommendations. Based on these findings, the ARD concluded that "Carr's annual recommendations regarding renewal of the employment contracts of the Dormitory Aides are [not] equivalent to making an effective recommendation as to hiring since the Dormitory Managers are already employed by the School." Id.
The ARD found that in the area of the assignment and direction of work, Carr's duties, including the approval of work schedules, were routine in nature and did not involve the exercise of independent judgment. As support for this finding, the ARD cited U.S. Department of the Army, Army Aviation Systems Command and Army Troop Support Command, St. Louis, Missouri, 36 FLRA 587 (1990) (U.S. Department of the Army). Further, citing The Adjutant General, State of Vermont, Vermont Air National Guard, 5 FLRA 779, 784 (1981) (VANG), the ARD found that although Carr prepares the performance appraisals of the Dorm Managers and serves as the reviewing official on the performance appraisals of the Dorm Aides, these duties are not among the criteria for determining supervisory status enumerated in section 7103(a)(10) of the Statute. Finally, the ARD found that Carr's duty of approving leave does not provide a sufficient basis for finding that he is a supervisor because leave approval is not one of the criteria specified in section 7103(a)(10) of the Statute. Therefore, the ARD concluded that Carr is not a supervisor within the meaning of section 7103(a)(10) of the Statute and that he should be included in the existing bargaining unit.
III. Activity's Position
The Activity contends that "[t]he setting of performance standards and the act of meeting with employees to discuss elements and standards and the supervisor[']s discussion with employees during the rating period are an essential part of the management right to assign work." Activity's Brief at 5. The Activity argues that "[w]hile performance appraisals are not listed in the [Statute] as one of the supervisory indicia, they are an inherent part of the final decision to take adverse action as a preliminary stage a supervisor must go through prior to taking action." Id. The Activity asserts that "[a]s a precursor to final action" the performance appraisal process involves "an exercise of independent judgment." Id. Additionally, the Activity argues that "[t]he decision to rate an individual satisfactory is as much a supervisory decision as one to discipline or counsel an employee." Id. The Activity argues, contrary to the conclusions of the ARD, that the fact that Carr did not take disciplinary or other assignment action does not mean that he was "not actively engaged in various aspects of supervision." Id. at 9.
Further, the Activity contends that the approval of leave by Carr is an exercise of independent judgment involving a decision to assign work. The Activity argues that "approval of leave, while not specifically mentioned in the [S]tatute[,] is an assignment of work since it approves the delay in accomplishing specific tasks while the employee completes his or her personal business." Id. at 5-6.
Finally, the Activity contends that Carr's recommendation of contract renewals of Dorm Aides and Dorm Managers to the School Principal "prove[s] that Mr. Carr effectively recommends the rehire or retention of employees and therefore meets the supervisory status criteria." Id. at 6. Relying on the Authority's decision in VAMC, 35 FLRA at 1212 (1990), the Activity argues that Carr effectively recommends retention of employees because, in recommending renewal or non-renewal of contracts to the School Principal, "Carr in effect makes a preliminary assessment of the candidates when the Principal concurs with that decision[.]" Id. at 8. The Activity also argues that the fact that Carr never denied a contract renewal did not mean that he did not have the authority to effectively make recommendations on rehiring or retaining employees.
IV. Analysis and Conclusions
For the following reasons, we conclude that Carr is a supervisor.
The ARD concluded that Carr's responsibility for evaluating the performance of Dorm Managers was not a sufficient basis for finding that Carr is a supervisor because the authority to evaluate employee performance is not among the authorities listed as indicia of supervisory status in section 7103(a)(10) of the Statute. It is clear that the authority to evaluate employee performance is not specified as an indicia of supervisory status in section 7103(a)(10) of the Statute. Nevertheless, we disagree with the ARD's conclusion that, because it is not listed among those indicia, the responsibility for evaluating employee performance is not a sufficient basis for finding that an individual is a supervisor within the meaning of section 7103(a)(10).
Section 7103(a)(10) of the Statute defines a "supervisor" as an individual employed by an agency who has authority "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[.]" The ARD's determination that responsibility for evaluating employee performance is not an indicia of supervisory status turned on a literal reading of section 7103(a)(10). That is, in the ARD's view, inasmuch as the evaluation of employee performance is not listed as one of the indicia of supervisory performance in section 7103(a)(10), the fact that an individual possesses or exercises the authority to evaluate employee performance does not make that individual a supervisor.
We find that the ARD's conclusion that evaluation of employee performance is not an indicia of supervisory status under section 7103(a)(10) fails to take into account the fact that when evaluations of employee performance are relied on by upper-level management when making decisions to hire, promote, reward, or discipline employees, the evaluations constitute the effective recommendation of those actions within the meaning of section 7103(a)(10) of the Statute. This conclusion is consistent with the Authority's determinations regarding the connection between performance evaluation and other management actions in cases where the Authority has considered the negotiability of proposals governing the use by management of performance evaluations for the purposes of rewarding, promoting, or disciplining employees. See, for example, National Association of Government Employees and U.S. Department of Veterans Affairs Medical Center, Brockton and West Roxbury, Massachusetts, 41 FLRA 529, 532-33 (1991) (proposal limiting the length of time that evidence as to employee performance may be retained held nonnegotiable because it would limit the extent to which that evidence can be used to support disciplinary action); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1405-06 (1987), petition for review denied, 873 F.2d 1485 (D.C. Cir. 1989) (proposal prescribing disciplinary penalty for unacceptable performance held nonnegotiable because it would excessively interfere with management's right to discipline employees).
We also note in this connection that for employees covered by chapter 43 of title 5 of the United States Code, performance evaluations form the basis for decisions to reward, promote, reassign, retain, and discipline employees. 5 U.S.C. § 4302(a)(3). We note, moreover, that for employees who are not covered by chapter 43 of title 5 of the United States Code, the performance appraisal systems under which they are evaluated may similarly require that decisions to reward, promote, or discipline employees be based on the results of performance evaluations.
We conclude, therefore, that where an individual exercises independent judgment in evaluating employee performance, and where that evaluation is relied on by upper-level management in taking an action listed among the indicia of supervisory authority specified in section 7103(a)(10), thereby constituting the effective recommendation of that action, a sufficient basis exists to conclude that the individual constitutes a supervisor within the meaning of section 7103(a)(10) of the Statute. To the extent that the decision in VANG is inconsistent with this conclusion, we will no longer follow that decision.
We note that insofar as it is relevant to the disposition of this case, the definition of the term "supervisor" in section 7103(a)(10) of the Statute is essentially the same as the definition of the term "supervisor" in section 2(11) of the National Labor Relations Act (NLRA).*/ Where there are comparable provisions under the Statute and the NLRA, decisions of the National Labor Relations Board (NLRB) and the courts interpreting the NLRA have "a high degree of relevance" to similar circumstances under the Statute. U.S. Department of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1381 (1990). Thus, in the absence of specific precedent under the Statute, "an analogy to comparable legal developments in the private sector is a useful guide." Id. at 1380. Although private sector law is not controlling in the Federal sector, the Authority may appropriately take into account the experience gained in the private sector. See U.S. Army Corps of Engineers, Headquarters, South Pacific Division, San Francisco, California, 39 FLRA 1445, 1450 (1991).
In this regard, we note that our interpretation of section 7103(a)(10) of the Statute to mean that the responsibility for independently evaluating employee performance is a basis for finding that an individual is a supervisor is consistent with the application of section 2(11) of the NLRA in the private sector. For example, in NLRB v. Metropolitan Life Insurance Co., 405 F.2d 1169 (2nd Cir. 1968), the United States Court of Appeals for the Second Circuit determined that watch engineers and assistant air conditioning engineers were supervisors within the meaning of section 2(11) of the NLRA. The court found that although the watch engineers and assistant air conditioning engineers did not possess the authority to hire, fire, or promote, they effectively recommended such actions because they submitted "to upper[-]level management the basic appraisal of the performance of the employees in their operating crews." Id. at 1174.
The court found that the fact that the evaluations were subject to review by the watch engineers' and assistant air conditioning engineers' immediate supervisors did not mean that the watch engineers and assistant air conditioning engineers were not supervisors within the meaning of section 2(11) of the NLRA. The court stated:
This power to review held by the immediate supervisors of the engineers whose status is at issue does not demonstrate that the latter are not "supervisors" under the section 2(11) definition. The power to recommend promotion is, of course, not the power actually to promote and consequently promotion recommendations will always be subject to review by those others who, in fact, have the final power to promote. If, however, there are personnel in an organization who are empowered to make by their independent evaluations recommendations relative to promotions and pay of other personnel, and these recommendations are acted upon by higher-level management, it would seem obvious that the status of those who are so empowered should be carefully inquired into to see whether they should be classified as "supervisors."
Id. at 1177.
The court found, based on the record in the case, that a favorable report by a watch engineer or an assistant air conditioning engineer "was an essential prerequisite to a promotion or merit increase and therefore the effectiveness of a recommendation in the report is undisputed." Id. The court also found, after examination of the evaluation forms used by the engineers, that the evaluations recorded on the forms "require the formation of sensitive judgments about the performance, potential, and character of each crew member . . . . " Id. The court noted, however, that if the appraisals and recommendations involved in the case had been "only of a routine or clerical nature" and "were ineffective actually to accomplish changes in promotions or in pay," a different case would have been presented. Id. at 1178.
While the NLRB will find that an individual constitutes a supervisor within the meaning of section 2(11) of the NLRA where a performance evaluation prepared by that individual may affect the employment status of an employee, the NLRB has also held that the fact that an individual evaluates unit employees is not by itself dispositive of supervisory status. See, for example, Passavant Health Center, 284 NLRB 887, 891 (1987); Texas Institute for Rehabilitation and Research, 228 NLRB 578, 580 (1977). Among the factors that the NLRB considers in determining whether evaluations of employee performance constitute effective recommendations of actions affecting employees' employment status are: (1) whether evaluations are directly linked, for example, to merit pay increases and promotions, see The Trustees of Noble Hospital, 218 NLRB 1441, 1442 (1975); (2) whether, and the degree to which, higher-level management relies on, and gives weight to, the evaluations, see St. Alphonsus Hospital, 261 NLRB 620, 631 (1981); Simpson Electric Company, 250 NLRB 309 (1980); University of Vermont, 223 NLRB 423, 426 (1976); (3) whether higher-level management independently investigates the evaluations, compare Wedgewood Health Care, 267 NLRB 525, 526 (1983) with Newton-Wellesley Hospital, 219 NLRB 699, 701 (1975); and (4) whether the evaluations are placed in employees' permanent personnel files, see Wedgewood Health Care, 267 NLRB at 526 and Comprehensive Health Planning Council of Southeastern Michigan, 256 NLRB 1191, 1192 (1981).
We also note that in cases where the evidence does not conclusively establish that an individual possesses supervisory authority within the meaning of section 2(11), the NLRB considers certain "secondary indicia" of supervisory status. See Flexi-Van Service Center, 228 NLRB 956, 960 (1977). See also Morris, The Developing Labor Law, at 1454-55 (2nd ed. 1983). These secondary factors include whether the individual: (1) attends management meetings, including supervisory training sessions, see Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347 (1st Cir. 1980); Washington Post Company, 220 NLRB 1173 (1975); and (2) has the authority to grant time off to employees, see Flexi-Van Service Center, 261 NLRB at 960.
Because of the essential similarity of the definition of the term "supervisor" in section 7103(a)(10) of the Statute and in section 2(11) of the NLRA, we find that the principles established in private sector case law as to the determination of supervisory status provide useful guidance. Specifically, insofar as it is relevant to the issues in this case, we find no basis on which to conclude that the principles applicable to the determination of supervisory status established by section 7103(a)(10) of the Statute are sufficiently unique to the Federal sector as to require us to ignore the experience gained in the private sector under section 2(11) of the NLRA. Compare National Treasury Employees Union v. FLRA, 826 F.2d 114 (D.C. Cir. 1987) (the court found that the policy that it was required to apply was unique to the public sector). Consequently, we adopt the principles used by the NLRB to determine supervisory status and will apply them in determining whether Carr is a supervisor within the meaning of section 7103(a)(10) of the Statute. See U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Allen Park, Michigan, 35 FLRA 1206, 1211 (1990) (VAMC, Allen Park).
It is undisputed in this case that Carr, as a Homeliving Specialist, is responsible for evaluating the performance of the Dorm Managers. We find, based on the record in this case, that Carr evaluates the Dorm Managers using a standard Agency form covering their positions and that he records his determination as to the level of their performance by entering the applicable numerical designation for that level as to each standard. We also find, based on the record, that the form contains a space for additional conclusions as to the Dorm Managers' performance by the individual who is rating those employees and that Carr has used the space to express specific findings in support of his evaluations. See Transcript at 62-64, 121-22, 133. After he completes the evaluations, Carr discusses the result with the Dorm Managers. The evaluation is ultimately placed in the Dorm Managers' permanent personnel files and constitutes the official rating of record for those employees. We further find, based on the record, that the Principal has not changed Carr's evaluations of the Dorm Managers and that she has not conducted an independent investigation of the Dorm Managers' performance. Rather, the evidence supports the conclusion that she accepts his evaluations. Specifically, the Principal testified that Carr independently appraises the Dorm Managers. Id. at 133.
Both Carr and the Principal testified that Carr had the authority to recommend the Dorm Managers for awards based on his evaluation of their performance, but the record does not contain any evidence demonstrating that he has done so. The evidence is less clear as to the relationship between Carr's evaluations of the Dorm Managers and his recommendations as to their continued employment. While the record indicates that Carr's recommendation that a Dorm Manager be retained is based on his evaluation of that employee's performance, the evidence in the record as to the weight that his recommendation carries in the decision to retain the employee is limited.
The record supports the conclusion that Carr's recommendations that a Dorm Manager's contract be renewed are not final. Id. at 108, 153. However, the Principal testified that she routinely forwards Carr's recommendations to the School Board without change and does not independently investigate to confirm the validity of those recommendations. Id. at 140. She also testified that she has never disagreed with his recommendations and that, prior to hiring the current Dorm Managers, she discussed with Carr his evaluation of the two Dorm Aides who were ultimately offered contracts as Dorm Managers. Id. at 145, 160-61.
Finally, we find, based on the record, that Carr has authority to grant requests of the Dorm Managers for annual or sick leave and that the Principal does not review or approve those grants of leave. Id. at 90-91, 108-09, 130-131, 144 and 166. We also find, based on the record, that Carr routinely attends management meetings and has taken supervisory training. Id. at 25, 57-59, 102-03, 106-07, 141-42, and 139-40.
Applying the relevant factors outlined above to the record in this case, we find that Carr is a supervisor within the meaning of section 7103(a)(10) of the Statute. Specifically, we find that Carr's evaluations of the performance of the Dorm Managers constitute the effective recommendation of the retention of the Dorm Managers. We note, based on the record, that the Dorm Managers are contract employees. Id. at 140-41. The continued employment of the Dorm Managers is dependent on the annual renewal of their contract. The School Board's decision to renew the Dorm Managers' contracts is based on Carr's recommendations which, in turn, are based on his evaluations of their performance.
We find, based on the record, that Carr's evaluations are routinely accepted by the Principal and forwarded to the School Board without any separate investigation. The Principal clearly relies on Carr's recommendations and evaluations of the Dorm Managers' performance when requesting that the School Board renew the Dorm Managers' contracts. While Carr's evaluations and recommendations are not the only factor relied on in the decision to renew the contracts, they are clearly one of the most significant factors. It is not necessary, however, that Carr's evaluations and recommendations constitute management's final decision to renew the contracts; only that management rely on them in making the contract renewal decision without seeking independent information. See, for example, Wedgewood Health Care, 267 NLRB at 526. We conclude, therefore, based on the record in this case, that Carr, through his evaluations of the Dorm Managers' performance, effectively recommends their continued employment by the School Board.
Moreover, we find that Carr's evaluations and recommendations constitute an exercise of independent judgment within the meaning of section 7103(a)(10). Carr testified that the Principal did not tell him how to evaluate the Dorm Managers. Transcript at 92. The Principal testified that she did not change Carr's appraisals and that his evaluations constituted his own judgment as to their performance. Id. at 133. We conclude, therefore, based on this consistent testimony, that Carr exercised independent judgment in evaluating the Dorm Managers' performance and in recommending that their contracts be renewed. See VAMC, Allen Park, 35 FLRA at 1212.
We further find that the authority to renew the Dorm Managers' employment contracts--that is, to retain the Dorm Managers--is integrally related to the statutory indicia of supervisory status under section 7103(a)(10). See, for example, Detroit College of Business, 296 NLRB 318, 319-20 (1989); University of Vermont, 223 NLRB at 426; Adelphi University, 195 NLRB 639, 642 (1972) (authority to retain or reappoint faculty is a supervisory authority within the meaning of section 2(11) of the NLRA). We note in this regard, for example, that where employees are subject to the annual renewal of a contract, the decision to renew that contract is, in effect, a decision to rehire. Moreover, in such circumstances, the decision to retain an employee whose contract is up for renewal is also a decision as to whether to remove or terminate that employee.
Consequently, in effectively recommending the retention of the Dorm Managers, based upon his evaluation of their performance, we conclude that Carr effectively recommends actions indicative of a supervisory authority listed in section 7103(a)(10) of the Statute. Our conclusion as to Carr's supervisory status is further supported by such secondary factors as his authority to grant leave requests and his attendance at management meetings and supervisory training. Compare Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, AFL-CIO, 34 FLRA 423, 426 (1990) (leave approval alone, without a showing of the exercise of any specific statutory supervisory authority, is not enough to demonstrate supervisory status).
Taken as a whole, therefore, we find that the record in this case supports the conclusion that Carr is a supervisor within the meaning of section 7103(a)(10) of the Statute.
The bargaining unit represented by AFT, National Council of Bureau of Indian Affairs Educators at the Dennehotso Boarding School is clarified to exclude Homeliving Specialist Patrick J. Carr.
(If blank, the decision does not have footnotes.)
*/ Section 2(11) of the NLRA states:
(11) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
29 U.S.C. § 152(11).