U.S. Department of Agriculture, Forest Service, Chattahoochee-Oconee National Forests, Oconee Ranger District and National Federation of Federal Employees (Authority decision, December 30, 1991)

Final FLRA representation decision. The Authority denies review of a regional director's unit clarification ruling, leaving the supervisory exclusion in place. The order concerns an appropriate bargaining unit under 5 U.S.C. § 7112. Section 7123(a)(2) excludes orders involving appropriate-unit determinations from the ordinary 60-day judicial-review provision.

Plain-English summary

A Forest Service district gave a forestry technician duties that included supervising another employee, approving leave, and preparing performance and training materials. The regional director found that the technician was a supervisor under the federal labor statute and excluded him from the bargaining unit. The union sought review, arguing that the director should have held a hearing and that the technician was only a work leader. The Authority found that the director could investigate without a hearing and that the union had not shown a clear factual error or another reason for review. It denied the application, leaving the exclusion in place.

Decision snapshot

• Authority: Supervisor definition under 5 U.S.C. § 7103(a)(10); regional director investigation under 5 C.F.R. § 2422.4(f).
• Outcome: Application for review denied; the technician remains excluded from the bargaining unit.
• Key point: A regional director may decide a unit clarification after investigation without holding a hearing when the record supports the findings.

Full text (FLRA public release)

[ v43 p911 ]
43:0911(70)CU

The decision of the Authority follows:

43 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

CHATTAHOOCHEE-OCONEE NATIONAL FORESTS

OCONEE RANGER DISTRICT

MONTICELLO, GEORGIA

(Activity)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

(Petitioner/Union)

4-CU-10011

ORDER DENYING APPLICATION FOR REVIEW

December 30, 1991

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the Union (NFFE) under section 2422.17(a) of the Authority's Rules and Regulations. In her Decision and Order On Petition For Clarification of Unit, the Regional Director (RD) found that employee Hubert P. Greene, incumbent in the position of Forestry Technician, GS-462-07, is a supervisor within the meaning of section 7103(a)(10) of the Federal Service Labor-Management Relations Statute (the Statute). The RD found, therefore, that Greene was excluded from the existing bargaining unit.

NFFE seeks review of the RD's decision. The Activity did not file an opposition to NFFE's application for review. For the reasons discussed below, we find that NFFE has not established any basis for review of the RD's Decision and Order. Accordingly, we deny the application for review.

II. Regional Director's Decision

NFFE is the certified exclusive representative of a consolidated nationwide bargaining unit of employees of the U.S. Department of Agriculture, Forest Service. The issue in this case concerns only the unit status of employee Greene, an employee of the Oconee Ranger District, Monticello, Georgia (the Activity). The Activity is headed by a District Ranger, and has one work center, located in Eatonton, Georgia, where Greene is assigned.

There are approximately 14 bargaining unit employees in the Oconee Ranger District. There are six first-line supervisors, each assigned to different programs or groups of programs of the District. Greene, a GS-7 Forestry Technician, is supervised by the Forester in charge of several programs, including recreation and law enforcement. Greene is the primary technician for recreation and law enforcement. On the Activity's organizational chart, Greene's position is shown as a second-line supervisory position. Greene has one full-time forestry technician--Jesse Huey, a GS-5--assigned to him.

In February 1991, a new organizational chart for the District was approved. The RD found that "Greene was informed that he would provide immediate supervision to Huey. Later, Greene's position description was amended to reflect his new supervisory duties. Specifically, his new duties were to rate Huey's performance; approve leave for Huey; prepare and provide training for Huey; and prepare Huey's Individual Development Plan for Fiscal Year 1991." RD's Decision at 2-3. Greene directly supervises Huey only during the one and three-quarters days per week that he spends in recreation. The RD notes that although Greene considers himself only a "crew leader," Huey "considers Greene as his supervisor," and "Greene admits that he approves leave for Huey." Id. at 3.

According to the RD, the Activity "asserts that although Greene will not have unilateral authority to hire, fire, assign, promote, transfer, furlough, layoff, recall, suspend, discipline or remove employees, [Greene] will be recommending subordinates for awards, promotions, discipline, transfers, hiring, removals and assignments." Id. The RD found that "[t]he evidence establishes that Greene, being a newly-appointed supervisor, has not had an opportunity to exercise all aspects of supervisory duties, as identified in [s]ection 7103(a)(10) of the Statute." Id.

The RD cited U.S. Department of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37 FLRA 239 (1990) (Interior, Yuma), in which we held that in determining the bargaining unit status of an employee who has recently encumbered a position

we will consider duties to have been actually assigned where: (1) it has been demonstrated that, apart from a position description, an employee has been informed that he or she will be performing the duties; (2) the nature of the job clearly requires those duties; and (3) an employee is not performing them at the time of the hearing [or at the time of the RD's decision] solely because of lack of experience on the job.

37 FLRA at 245.

The RD, applying the Interior, Yuma standards, found that the evidence established that Greene: (1) was "a recently-appointed supervisor, and because of this, he has not yet had an opportunity to exercise most of his new duties"; (2) had "been told the supervisory duties he is expected to perform"; and (3) was "on a regular basis . . . performing some of the duties, such as approving the time and attendance for Huey." Id. at 4. The RD found that Greene, therefore, is a supervisor within the meaning of section 7103(a)(10) of the Statute, and found that Greene was excluded from the existing bargaining unit.

III. NFFE's Application for Review

NFFE's contends that "[a]n investigation was conducted by the Regional Director, but no hearing was held" and that "the absence of a hearing resulted in prejudicial error." Application at 1-2.

NFFE states that if a hearing had been held, it would have shown that the statements of management witnesses show that Greene is a work leader but not a supervisor, and that Greene's decisions as a supervisor are subject to and have on occasion been closely reviewed, altered, or rescinded by higher management. In short, NFFE asserts that had a hearing been held, NFFE would have had the opportunity to refute the bases for the RD's decision and to cast doubt on the RD's application of Authority precedent. NFFE "requests that the Authority remand the instant case to the Regional Director and direct that a hearing be held." Id. at 5.

IV. Analysis and Conclusions

We conclude that no compelling reasons exist within the meaning of section 2422.17 of the Authority's Rules and Regulations for granting the application for review.

NFFE contends that the RD's failure to hold a hearing in this matter resulted in prejudicial error. We do not agree. The RD conducted an investigation of NFFE's petition and determined to issue a decision without conducting a hearing. Nothing in our Regulations required the RD to hold a hearing. Our Regulations specifically allow a Regional Director to "make such investigation as the Regional Director deems necessary." 5 C.F.R. § 2422.4(f). See U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, New Mexico, 35 FLRA 99, 105-06 (1990), 34 FLRA 428, 450-51 (1990), and 33 FLRA 482, 49l (1990) (BIA IV, III, and II).

We note that NFFE was not precluded from presenting evidence to support its position during the RD's investigation. The record developed from the RD's investigation contains information that supports the RD's factual determinations, and NFFE has not shown that any finding or conclusion of the RD on any substantial factual issue was clearly erroneous. Moreover, the RD applied established Authority precedent in reaching her conclusion from the factual determinations that Greene is a supervisor within the meaning of the Statute.

We find that the RD's use of an investigation in this case was not clearly erroneous within the meaning of section 2422.17(c) of the Authority's Regulations. See BIA III, 34 FLRA at 451; and BIA II, 33 FLRA at 49l. We also find that NFFE's application does not provide any other basis for granting review under section 2422.17(c) of our Regulations. Accordingly, we will deny the application for review.

V. Order

The application for review is denied.

FOOTNOTES:
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