U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office and American Federation of Teachers, National Council of Bureau of Indian Affairs Educators (Authority decision, February 27, 1992)

FLRA representation decision. The Authority grants review of a regional director's bargaining-unit determination and invites briefs. It does not decide whether the employee belongs in the unit. This order is not presented as beginning a judicial-review period. Authority orders involving an appropriate-unit determination under 5 U.S.C. § 7112 are generally excluded from judicial review by 5 U.S.C. § 7123(a)(2).

Plain-English summary

The Bureau of Indian Affairs argued that a boarding school's homeliving specialist supervised dormitory employees and should be excluded from an existing bargaining unit. An acting regional director found that the specialist did not exercise the independent judgment required to be a statutory supervisor and included him in the unit. The Authority granted the agency's application for review because the specialist's performance-appraisal duties raised a substantial question under its precedent. It invited briefs from the parties. The Authority did not decide the employee's final bargaining-unit status in this order.

Decision snapshot

• Authority: Supervisor definition under 5 U.S.C. § 7103(a)(10); review under 5 C.F.R. § 2422.17.
• Outcome: Application for review granted; briefs invited within 10 days.
• Key point: The Authority needed further consideration of whether performance-appraisal duties gave the specialist supervisory authority.

Full text (FLRA public release)

[ v44 p112 ]
44:0112(10)CU

The decision of the Authority follows:

44 FLRA No. 10

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

NAVAJO AREA OFFICE

GALLUP, NEW MEXICO

(Activity)

and

AMERICAN FEDERATION OF TEACHERS

NATIONAL COUNCIL OF BUREAU OF INDIAN

AFFAIRS EDUCATORS

(Petitioner/Labor Organization)

6-CU-80010

ORDER GRANTING APPLICATION FOR REVIEW

February 27, 1992

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 Activity under section 2422.17(a) of the Authority's Rules and Regulations. The Activity seeks review of the Acting Regional Director's (ARD) Decision and Order on Petition for Clarification of Unit (CU) finding that Patrick J. Carr is not a supervisor within the meaning of section 7103(a)(10) of the Federal Service Labor-Management Relations Statute (the Statute) and, therefore, should be included in the existing bargaining unit. The Petitioner (Union) did not file an opposition to the Activity's application.

For the reasons discussed below, we find that the Activity has established that compelling reasons exist for granting the application for review pursuant to the provisions of section 2422.17 of the Authority's Rules and Regulations. Accordingly, we grant the application for review.

II. Background and ARD's Decision

The Union is the exclusive representative of a bargaining unit of professional employees, including those located at the Activity's Dennehotso Boarding School in Dennehotso, New Mexico. The Union filed a CU petition seeking to clarify the existing unit to include Patrick J. Carr, a Homeliving Specialist at the Dennehotso Boarding School. The Activity took the position that Carr is a supervisor within the meaning of section 7103(a)(10) of the Statute and should be excluded from the bargaining unit.

Carr has been employed as a Homeliving Specialist at the Activity for three and one half 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 the 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. The initial responsibility for resolving these problems lies with the Dorm Managers. If the Dorm Managers cannot resolve a problem, they go to Carr for resolution and/or, if necessary, to the School Principal. Carr's duties include preparing the performance appraisals of the Dorm Managers and meeting with them periodically to review their performance. Moreover, Carr serves as the reviewing official on 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. Thereafter, the School Principal makes her contract renewal recommendations to the School Board. The ARD found that, because Carr has never recommended that a contract of a Dorm Manager not be renewed, the exercise of this authority is routine in nature. 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. The ARD also 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). Finally, the ARD found that although Carr prepares the performance appraisals of the Dorm Managers, serves as the reviewing official on the performance appraisals of the Dorm Aides, and approves annual and sick leave, these duties are not among the criteria for determining supervisory status enumerated 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 should be included in the existing bargaining unit.

III. The Application for Review

The Activity seeks review of the ARD's decision on the grounds that: (1) a substantial question of law is raised because of the ARD's interpretation of the Statute; and (2) the ARD's decision on a substantial factual issue is clearly erroneous.

The Activity argues that when Carr walks through the dormitories "observing and looking for problems, [he] is inherently evaluating the performance of employees with regard to discipline, assignment and reassignment, promotion, and awards" and "is essentially exercising independent judgment by deciding not to take disciplinary or other assignment action." Application for Review at 3 (emphasis in original). The Activity contends that Carr's evaluation "is part and parcel of the necessary supervisory indicia set forth in [s]ection 7103(a)(10) of the [S]tatute." Id. The Activity argues that just "[b]ecause the employees under his supervision are competent and do not require discipline and/or reassignment, it does not mean that Mr. Carr was not actively engaged in various aspects of supervision . . . ." Id. Furthermore, the Activity argues that Carr is a second-line supervisor and that the ARD inappropriately applied the criteria for a first-line supervisor to his position. Therefore, the Activity argues that the ARD's interpretation of the criteria is inconsistent with the intent of the Statute.

The Activity further contends that the ARD erroneously interpreted the facts of this case. The Activity argues that: (1) Carr's action in reviewing appraisals of the Dormitory Aides is a supervisory function directly related to assignment with potential implications for discipline; (2) writing performance ratings is an aspect of the assignment of work; (3) approving sick and annual leave involves decisions with respect to the assignment of personnel; and (4) approving work schedules is an assignment of work.

Finally, the Activity argues, contrary to the ARD, that Carr's duties are not routine in nature. According to the Activity, when Carr makes a decision not to engage in discipline, transfer and/or reassignment, such a decision "is inherently part and parcel of the supervisory duties set forth in section 7103(a)(10)[.]" Id. at 9. The Activity also maintains that Carr's weekly approval of work schedules is a consistent exercise of a supervisory responsibility and by itself meets the definition of a supervisor under the Statute. According to the Activity, preparing and reviewing performance standards is implicit and inherent in the definition of a supervisor.

IV. Analysis and Conclusions

We conclude that the Activity has established that compelling reasons exist, under section 2422.17(c)(1) of the Authority's Rules and Regulations, for granting the application for review because the ARD's decision raises a substantial question of law or policy due to the absence of, or a departure from, Authority precedent. We find that a question is raised as 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. Accordingly, we will grant the application for review.

V. Order

For the reasons discussed above, we grant the application for review. In accordance with section 2422.17(g) of the Authority's Rules and Regulations, the parties may, within 10 days after issuance of this Order, submit briefs on the issues raised by the application for review. Briefs should be directed to:

Alicia N. Columna
Director, Case Control Office
Federal Labor
Relations Authority
500 C Street, SW., Room 213
Washington, D.C.
20424

FOOTNOTES:
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have footnotes.)