[ v22 p758 ]
22:0758(86)CA
The decision of the Authority follows:
22 FLRA No. 86
U.S. DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
GOLDEN, COLORADO
Respondent
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
LOCALS 640, 1245, 1759, 1959
AND 2159
Charging Party
Case No. 7-CA-1229
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Respondent and cross-exceptions filed by the Charging Party (Union) and
the General Counsel. The Union also filed an opposition to the
Respondent's exceptions. The complaint alleged that the Respondent had
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (Statute) by refusing to bargain with
the Union over pay rates for prevailing rate employees in Supervisory
Craftsman positions.
II. Background
In 1977, Wage Board employees who were involved in the transmission
and marketing of electrical power, generated at Federal power projects
throughout a 15-state area in the western part of the country, were
transferred from the Department of the Interior's Bureau of Reclamation
to the Western Area Power Administration in the newly created Department
of Energy. The Wage Board employees who were involved in the power
production function remained with the Bureau of Reclamation. At the
Bureau of Reclamation, the employees who were transferred and the
employees who remained had been members of a total of six different
bargaining units which were located in the six different organizational
sub-elements of the Bureau of Reclamation. Those bargaining units were
represented by the International Brotherhood of Electrical Workers
(IBEW).
In Department of Energy, Western Area Power Administration (WAPA 1),
3 FLRA 76 (1980), the Authority found that the appropriate bargaining
unit for those employees transferred from the Department of the
Interior's Bureau of Relcamation to the Department of Energy's Western
Area Power Administration (WAPA) should be an activity-wide unit at
WAPA, as contended by the Agency in that case. However, contrary to
WAPA's assertion that the employees classified as Foreman I, II, and III
should be excluded from the bargaining unit as supervisors under
Executive Order 11491, as amended, the Authority found that those
employees should be included in the unit. Id. at 80.
The Authority noted in WAPA 1 that the incumbents of the Foreman I,
II, and III positions had been included in the bargaining units at the
Bureau of Reclamation from a date prior to 1962, and that a primary
reason for their inclusion was that historically their rates of pay were
negotiated by IBEW and the Bureau of Reclamation in the same manner as
the wage rates of other employees in the units. Id. at 79-80. Further,
the Authority noted that Congress had expressed approval of those
bargaining practices through the enactment of section 704 of the Civil
Service Reform Act of 1978 (CSRA), 92 Stat. 1218 (codified at 5 U.S.C.
Section 5343 note (1982)), /1/ and through the legislative history
attendant to its enactment. WAPA 1 at 80-81.
In addition to the terms of the statutory provision, the Authority
noted more specifically that Congressman Ford had stated, with respect
to the bargaining practices concerning the "trade and craft employees in
units or portions of units" transferred from the Department of the
Interior to the Department of Energy, that "(t)his has produced some of
the most stable and effective collective bargaining in the history of
public employee labor relations." Id. at 78. /2/ The Authority
therefore concluded that "(t)o disrupt the historical inclusion of
Foreman I, II, and III with the nonsupervisory employees in any unit
established at WAPA through the period of the Executive Orders and
before could frustrate the long history of stable and effective
collective bargaining." Id. at 80. Given the special circumstances of
these employees, the Authority found the Foreman I, II, and III
positions to be appropriately included in the bargaining unit, without
consideration of their supervisory status.
On June 29, 1980, one month after the Authority's issuance of its
decision in WAPA 1, the Agency reclassified its Foreman II and III
positions as Supervisory Craftsman positions. Then, on July 15, 1980,
WAPA filed a unit clarification petition with the Authority, seeking to
exclude as supervisors those employees in its reclassified Supervisory
Craftsman positions. The Regional Director dismissed the unit
clarification petition, finding that the evidence on file indicated that
the Supervisory Craftsman positions were previously classified as
Foreman II and III positions so that their inclusion in the unit was
governed by the Authority's earlier decision. WAPA appealed this
dismissal to the Authority, and the Authority denied the request for
review, finding that WAPA "neither contends nor has it demonstrated that
the incumbents of the disputed positions no longer perform the duties of
the positions previously classified as Foreman II and III." Department
of Energy, Western Area Power Administration, Golden, Colorado (WAPA 2),
Case No. 7-CU-24 (February 17, 1981).
After the Authority denied WAPA's request for review, the current
dispute arose. WAPA refused to negotiate with regard to wages for
employees in Supervisory Craftsman positions, and refused to recognize
these employees as members of the bargaining unit.
III. Decision of the Administrative Law Judge
The Judge found that the inclusion of "prevailing rate" foremen and
supervisors, like the Respondent's Foreman II and III employees and its
reclassified Supervisory Craftsman employees, in bargaining units with
other "prevailing rate" employees occurred regularly since as early as
1969, and was condoned under Executive Orders 10988 /3/ and 11491. /4/
The Judge noted, further, that continuation of this practice is
permitted under section 7135(a) of the Statute and section 704 of the
CSRA. /5/ He held, therefore, that the Respondent's improper refusal to
bargain with its Supervisory Craftsman employees constituted an unfair
labor practice under section 7116(a)(1) and (5) of the Statute.
IV. Positions of the Parties
In support of its position that the Judge erred in finding that its
Supervisory Craftsman employees must be included in the bargaining unit,
the Respondent argues that the Authority's decision in WAPA 1 is not
binding here because it was decided under Executive Order 11491, and not
under the Statute. The Respondent argues further that the more recently
established Supervisory Craftsman positions are clearly "supervisory"
positions to be excluded from the bargaining unit under the Statute,
notwithstanding other provisions in title 5 of the U.S. Code regarding
"prevailing rate employees," as these positions are categorized. The
Respondent argues finally that the Authority's official notice in WAPA 1
that the past inclusion of the Foreman II and III positions in
bargaining units resulted in a stable bargaining history is factually
inaccurate and, even if accurate, it does not suffice to override the
specific prohibition against including supervisors in bargaining units
under both Executive Order 11491 and the Statute.
In its opposition to these contentions by the Respondent, the Union
argues that the Judge committed no such errors in his legal analysis of
this case. The Union also submitted a cross-exception, however,
asserting that the Judge erred in his factual determination that the
Respondent "substantially changed" the range of supervisory
responsibility in the Supervisory Craftsman positions compared with that
of the former Foreman II and III positions. The Union further argues
that, in any event, this alleged error has no real significance because
the Judge correctly found that the Supervisory Craftsman positions were
properly included in the bargaining unit for other reasons.
The General Counsel filed a brief in support of the Union's limited
factual cross-exception, arguing that any distinctions in supervisory
duties between the Foreman II and III positions and the Supervisory
Craftsman positions "involve the method or degree or performing a given
function rather than significant variance in substantive functions or
responsibilities."
V. Analysis
The issue before the Authority is whether the Respondent's refusal to
negotiate with regard to wages for employees in the reclassified
Supervisory Craftsman positions, and its refusal to recognize these
employees as members of the bargaining unit, violate section 7116(a)(1)
and (5) of the Statute. In making such a determination, the Authority
must decide whether these positions continue to be sufficiently
analogous to the Foreman II and III positions to warrant their
historical inclusion within the unit, as found appropriate in WAPA 1 and
WAPA 2.
The Judge found in this case that "Supervisory Craftsmen perform all
the duties they previously performed as Foreman II or Foreman III," and
that "the record does not show any duty now performed by Supervisory
Craftsmen which was not performed by Foreman III and, in most respects
by Foreman II." He found further that, although the range of supervisory
responsibility did increase "substantially," it was "principally because
WAPA (had) unified the duties of Supervisory Craftsmen so that each
Supervisory Craftsman . . . perform(ed) the full range of duties
previously performed by Foreman II and III."
The Judge went on to note that the Statute generally prohibits the
inclusion of supervisors in bargaining units. However, he noted
further, as the CSRA expressly provides, the terms and conditions of
employment for "prevailing rate employees" shall continue to be
negotiated as in the past, regardless of contrary provisions in the
United States Code at title 5, chapter 71. /6/ He noted additionally
that "prevailing rate employees" have been defined by statute to include
"a foreman and a supervisor . . . in a position having trade, craft, or
laboring experience and knowledge as a paramount requirement . . . " 5
U.S.C. Section 5342(a)(2)(A). /7/ The Judge then found that the record
in this case demonstrates clearly that both the Foreman II and III
positions and the Supervisory Craftsman positions were "prevailing rate"
positions covered by these statutory provisions. He therefore concluded
that, under the terms of these provisions, employees in Supervisory
Craftsman positions cannot be excluded from the bargaining unit. We
adopt these findings by the Judge, and find that they control the
disposition of the case.
Finally, the Respondent challenges the factual accuracy of a
statement in the legislative history of the Statute which the Authority
discussed, and relied on in part, in the earlier WAPA 1 decision as
indicative of legislative intent to exempt certain supervisory employees
from the general prohibition against their inclusion in bargaining
units. We find in the context of this case that the accuracy of the
statement at issue is irrelevant; it is not determinative of the
legislative intent of the Statute. The challenged statement -- whether
accurate or inaccurate factually -- simply reflects the legislative
intent in the enactment of the Statute. See Sutherland Statutory
Construction Section 48.02 (4th Ed).
VI. Conclusion
Based on the considerations set forth above, the Authority concludes
that the Respondent's refusal to negotiate with regard to wages for
employees in Supervisory Craftsman positions, and to recognize these
employees as members of the bargaining unit, constitutes a violation of
section 7116(a)(1) and (5) of the Statute. We find further that the
Respondent's refusal to bargain was clearly unjustified and flies in the
face of the statutory requirement to bargain in good faith.
In reaching this conclusion, we note particularly that the Respondent
was on notice, as the result of its earlier unit clarification petition,
that the excluded positions were required to be included in the
bargaining unit, and that the reclassification of those positions to
Supervisory Craftsman did not change the appropriateness of their
inclusion in the unit. Department of Energy, Western Area Power
Administration, 3 FLRA 76, 80 (1980). /8/ The Respondent has not
demonstrated that the duties of the Supervisory Craftsman positions had
changes to such an extent that it was justified in ignoring the
Authority's previous holdings regarding the same positions and in
refusing to recognize employees in Supervisory Craftsman positions as
members of the bargaining unit. The Authority will not condone such
activity which only serves to impede the collective bargaining process
and frustrate our goal of efficient and effective government operations.
Having found that the Respondent's unilateral exclusion of the
Supervisory Craftsman positions from the bargaining unit constituted a
violation of section 7116(a)(1) and (5) of the Statute, we next consider
what remedial order will best effectuate the purposes and policies of
the Statute. In our opinion, the Respondent's unlawful conduct directly
caused the incumbents of the excluded positions to be denied the
benefits of exclusive representation, specifically the benefits of
coverage under the collective bargaining agreement(s) applicable to the
bargaining unit ever since their exclusion in 1982. Therefore, we shall
order the Respondent to apply the terms of any agreement(s) negotiated
between the parties covering the bargaining unit to the incumbents of
the Supervisory Craftsman positions and, wherever possible, to apply
such terms retroactive to the date of their unlawful exclusion from the
unit.
Additionally, since the incumbents of the Supervisory Craftsman
positions excluded from the unit are prevailing wage employees whose
rates of pay are negotiable under section 704 of the Civil Service
Reform Act of 1978 (see note 1), and the exclusive representative of the
unit has been denied the right to negotiate rates of pay for the
Supervisory Craftsman positions since 1982 because of their unlawful
exclusion from the unit, we shall order the Respondent to negotiate in
good faith upon request concerning such rates of pay and apply whatever
agreement is reached retroactive to 1982. In our opinion, this is the
only way that the affected employees can be made whole for the losses
caused by the Respondent's unlawful conduct, and such an order is
consistent with remedies provided in analogous circumstances. See, for
example, Department of the Interior, Water and Power Resources Service,
Grand Coulee Project, Grand Coulee, Washington and Office of the
Secretary, Department of the Interior, Washington, D.C., 9 FLRA 385,
388-89 (1982), in which the agency was ordered to permit negotiations at
the level of exclusive recognition concerning wage rate increases for
prevailing rate employees and to adjust their negotiated wage rate
retroactively to the date of its unlawful refusal to permit such
negotiations, consistent with a memorandum of understanding between the
parties. /9/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Department of Energy, Western Area Power
Administration, Golden, Colorado, shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1245, 1759, 1959
and 2159, the exclusive representative of its employees, concerning the
conditions of employment of employees in Supervisory Craftsman
positions.
(b) Refusing to recognize employees in Supervisory Craftsman
positions as being included in the unit previously determined to be
appropriate by the Federal Labor Relations Authority in Department of
Energy, Western Area Power Administration, 3 FLRA 76 (1980), and in
Department of Energy, Western Area Power Administration, Golden,
Colorado, Case No. 7-CU-24 (February 17, 1981).
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Recognize the International Brotherhood of Electrical Workers,
AFL-CIO, Locals 640, 1245, 1759, 1959 and 2159, as the exclusive
representative of all of the employees in the unit where it has been
granted exclusive recognition, including the employees in the
Supervisory Craftsman positions.
(b) Apply retroactively to the incumbents of the Supervisory
Craftsman positions who have been unlawfully excluded since 1982 from
the bargaining unit exclusively represented by the International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1245, 1759, 1959
and 2159, the terms of any agreement(s) reached between the Respondent
and the exclusive representative applicable to that bargaining unit, to
the extent that the retroactive application of such terms to the
Supervisory Craftsman positions is possible.
(c) Upon request, negotiate in good faith with the International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1245, 1759, 1959
and 2159, about the rate(s) of pay applicable to the prevailing wage
employees in the Supervisory Craftsman positions who were unlawfully
excluded from the bargaining unit since 1982, and apply whatever
agreement is reached concerning their pay retroactive to the date of
their unlawful exclusion from the bargaining unit in 1982.
(d) Upon request, negotiate in good faith with the International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1245, 1759,
1959, and 2159, the exclusive representative of a unit of its employees,
concerning the conditions of employment of all its employees in that
unit, including those employees in Supervisory Craftsman positions.
(e) Post at its facilities in Golden, Colorado, and at its facilities
in each District of the Western Area Power Administration, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed personally
by the Administrator, Western Area Power Administration, and shall be
posted and maintained for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that said Notices are
not altered, defaced or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., July 29, 1986.
/s/ J. L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES
THAT:
WE WILL NOT refuse to negotiate in good faith with the International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1245, 1759, 1959
and 1159 (IBEW), the exclusive representative of our employees,
concerning the conditions of employment of employees in Supervisory
Craftsman positions.
WE WILL NOT refuse to recognize employees in Supervisory Craftsman
positions as being included in the unit previously determined to be
appropriate by the Federal Labor Relations Authority in Department of
Energy, Western Area Power Administration, 3 FLRA 76 (1980), and in
Department of Energy, Western Area Power Administration, Golden,
Colorado, Case No. 7-CU-24 (February 23, 1981).
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL recognize the International Brotherhood of Electrical
Workers, AFL-CIO, Locals 640, 1245, 1759, 1959 and 2159 as the exclusive
representative of all of the employees in the unit where it has been
granted exclusive recognition, including those employees in the
Supervisory Craftsman positions.
WE WILL apply retroactively to the incumbents of the Supervisory
Craftsman positions who have been unlawfully excluded since 1982 from
the bargaining unit exclusively represented by the International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1245, 1759, 1959
and 2159, the terms of any agreement(s) reached between the Respondent
and the exclusive representative applicable to that bargaining unit, to
the extent that the retroactive application of such terms to the
Supervisory Craftsman positions is possible.
WE WILL, upon request, negotiate in good faith with the International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1245, 1759, 1959
and 2159, about the rate(s) of pay applicable to the prevailing wage
employees in the Supervisory Craftsman positions who were unlawfully
excluded from the bargaining unit since 1982, and apply whatever
agreement is reached concerning their pay retroactive to the date of
their unlawful exclusion from the bargaining unit in 1982.
WE WILL, upon request, negotiate in good faith with the International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1245, 1759,
1959, and 2159, the exclusive representative of a unit of our employees,
concerning the conditions of employment of all the employees in that
unit, including those employees in Supervisory Craftsman positions.
(Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado 80202, and whose
telephone number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-1229
U.S. DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
GOLDEN, COLORADO
Respondent
and
INTERNATIONAL BROTHERHOOD of ELECTRICAL WORKERS,
AFL-CIO, LOCALS 640, 1245, 1759, 1959 and 2159
Charging Party
David A. Fontanella, Esquire
Christine Krithades, Esquire
Mr. Buster B. Boatman
For the Respondent
Donald P. MacDonald, Esquire
Patricia Coan, Esquire
For the Charging Party
Nicholas J. LoBurgio, Esquire
James J. Gonzales, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /10/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., was initiated by a charge
filed on May 29, 1981 (G.C. Exh. 21). The Complaint and Notice of
Hearing issued on August 31, 1981 (G.C. Exh. 24), the hearing being set
for November 18, 1981. By Order dated October 28, 1981 (G.C. Exh. 26),
the hearing was postponed indefinitely. By Order dated January 20,
1982, this case, together with other cases, was set for calendar call
and for hearing on April 19, 1982 (G.C. Exh. 27). By letter dated
February 3, 1982, Counsel for the Charging Party, International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1245, 1759, 1959
and 2159 (hereinafter referred to as "IBEW" or the "Union"), filed a
Motion For Summary Judgment (G.C. Exh. 28); by Order dated March 1,
1982, the Acting Regional Director transferred Charging Party's Motion
For Summary Judgment to the Authority (G.C. Exh. 29); by notice dated
March 1, 1982, the General Counsel stated that he ". . . takes no
position regarding the merits of the above cited Motion filed by
Charging Party" (G.C. Exh. 29); by letter dated February 19, 1982,
Respondent filed a Response to the Motion For Summary Judgment (G.C. Exh
30); on, or about, March 9, 1982, Counsel for Charging Party filed a
Memorandum In Reply To Respondent's Response (G.C. Exh. 31); by letter
dated March 22, 1982, Respondent filed a response to Charging Party's
memorandum (G.C. Exh 32); on March 26, 1982, Respondent filed a Motion
for a More Specific Hearing Date (G.C. Exh. 34). By Order dated March
31, 1982, the Authority transferred Charging Party's Motion For Summary
Judgment to this Office. By Petition dated April 2, 1982, Charging
Party requested revocation of the Subpoena Duces Tecum dated March 24,
1982; by Order dated April 6, 1982, said Petition was transferred to
this Office; and by Order dated April 12, 1982, the Petition to Revoke
was granted and the Subpoena Duces Tecum dated March 24, 1982, was
revoked (G.C. Exh 37). In a conference call with counsel for all
parties, the undersigned granted Respondent's Motion for a More Specific
Hearing Date and fixed April 20 as the date for the commencement of the
hearing in this matter and only counsel would be required to appear at
the Calendar Call on April 19, and orally advised the parties that
Charging Party's Motion For Summary Judgment would not be granted. At
the Calendar Call on April 19, 1982, Council for General Counsel filed a
further Motion for Summary Judgment which was taken under advisement and
after argument on April 20, 1982, after the opening of the hearing, was
denied (Tr. 20).
All parties were represented at the hearing by able counsel, were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence bearing on the issues as delineated by
the undersigned, and were afforded opportunity to present oral argument.
At the close of the hearing, May 21, 1982, was fixed as the date for
mailing, or filing, post-hearing briefs and counsel for each party has
timely filed, or mailed, an excellent brief, received on or before May
25, 1982; however, counsel for General Counsel, by letter dated May 24,
1982, noted the inadvertent ommission of pages 19-23 of his brief and
counsel for Respondent by notice dated May 26, 1982, noted an error in
citations and submitted corrected pages 6 and 7 of its brief. Each
request is granted and each brief has been corrected by inserting the
missing or corrected pages as requested. Upon the basis of the entire
record, including my observation of the witnesses and their demeanor, I
make the following findings and conclusions:
Background
Prior to 1977 the activities involved were under the Department of
Interior's Bureau of Reclamation (hereinafter referred to as "BR"). In
1977, Congress created the Department of Energy and the Department of
Energy Organization Act, P.L. 95-91, transferred various operations,
functions and responsibilities from numerous Departments and bodies to
the Department of Energy, including all functions of the Secretary of
the Interior with respect to:
"(E) the power marketing function of the Bureau of Reclamation,
including the construction, operation, and maintenance of
transmission lines and attendant functions." (P.L. 95-91, Sec.
302(a)(1)(E)).
The Department of Energy in turn created the Western Area Power
Administration (hereinafter also referred to as "WAPA") to which this
power marketing function was delegated. BR had operated through five
separate and autonomous regions in a fifteen state area. Although IBEW
had a long-standing collective bargaining relationship with the BR,
there were a variety of bargaining units, a number of different wage
scales, etc. On October 23, 1978, WAPA filed a representation petition
(G.C. Exh. 1); and on November 7, 1978, WAPA filed an amended petition
(Case No. 61-4217(RA) (G.C. Exh. 2)). Although filed under the
Executive Order, the Federal Service Labor-Management Relations Statute,
P.L. 95-454, had been enacted October 13, 1978, effective 90 days after
the date of enactment, and on April 18 and May 29, /11/ 1980, the
Authority issued its decision in Case No. 61-4217(RA), 3 FLRA No. 12, 3
FLRA 76 (1980). In agreement with WAPA, the Authority concluded that,
". . . WAPA is not the successor employer to the bargaining
relationship between Intervenors and the USBR. . . . "
And, in further agreement with WAPA, concluded,
"that an activity-wide unit of all WB (Wage Board) employees
would be appropriate."
However, in disagreement with WAPA, the Authority held that Foreman
I, II, and III should be included in the unit found appropriate.
Although the Authority stated,
"The record herein does not set forth the duties, authority and
responsibilities of employees in the disputed classifications." (3
FLRA at 79)
and,
"The record evidence is insufficient upon which a determination
of the supervisory status of Foreman I, II, and III can be based."
(3 FLRA at 80)
the Authority concluded that,
". . . we include Foreman I, II, and III in the unit here found
appropriate, without passing upon their supervisory status." (3
FLRA at 80),
for the reasons, inter alia, that,
". . . these workers were included as members of the bargaining
units at USBR since before 1962 and their wage rates were
negotiated in the same manner as the wage rates of other personnel
in the units. Congressman Ford stated with respect to the
bargaining practices concerning these 'trade and craft employees
in units or positions of units' transferred from Interior to DOE
that: 'This has produced some of the most stable and effective
collective bargaining in the history of public employee labor
relations' (124 Cong. Rec. H8469, Aug. 11, 1981) (Legislative
History of the Federal Service Labor-Management Relations Statute,
Title VII of the Civil Service Reform Act of 1978, Subcommittee on
Postal Personnel and Modernization of the Committee on Post Office
and Civil Service, House of Representatives, 96th Cong., 1st
Sess., Comm. Print No. 96-7 (hereinafter referred to as
"Legislative History") at page 857) To disrupt the historical
inclusion of Foreman I, II, and III with the nonsupervisory
employees . . . could frustrate the long history of stable and
effective collective bargaining. . . . " (3 FLRA at 80)
. . .
". . . The legislative history of the Civil Service Reform Act
of 1978 shows the intent of Congress that the wage board employees
transferred from Interior to DOE should continue to enjoy the
broad scope of bargaining at DOE similar to that which has existed
at Interior. Thus, the Conference Committee, in discussing
Section 704 of Title VII of the CSRA (92 Stat. 1218), as
subsequently enacted, stated:
As revised, (section 704) overrules the decision of the
Comptroller General . . . relating to certain negotiated contracts
applicable to employees under the Department of the Interior and
the Department of Energy. This section also provides specific
statutory authorization for the negotiation of wages, terms and
conditions of employment and other employment benefits
traditionally negotiated by these employees in accordance with
prevailing practices in the private sector of the economy (H. Rep.
No. 95-1717, Oct. 5, 1978, at 159) (Legislative History, p. 827)
"Similarly, Congressman Ford, in explaining his proposed
amendment of the House bill which lead (sic) to the adoption of
Section 704, stated:
"During committee markup, I offered an amendment . . . which is
intended to preserve the scope of collective bargaining heretofore
enjoyed by certain trade and craft employees. . . . " (124 Cong.
Rec. H8468, Aug. 11, 1978) (Legislative History, p. 857). 3 FLRA
at 80-81.
Notwithstanding that the decision of the Authority made reference to
the 1978 legislative history of the Civil Service Reform Act, the case
arose under, and was decided under, the Executive Order as the Authority
specifically stated as follows:
". . . the Authority finds the following to constitute an
appropriate unit for the purpose of exclusive recognition under
Executive Order 11491, as amended:*
* In conformity with Section 902(b) of the Civil Service Reform
Act of 1978 (92 Stat. 1224), the present case is decided solely on
the basis of E.O. 11491, as amended, and as if the new Federal
Service Labor-Management Relations Statute (92 Stat. 1191) had not
been enacted. The decision and direction of election does not
prejudge in any manner either the meaning or application of
related provisions in the new Statute or the result which would be
reached by the Authority if the case had risen under the Statute
rather than the Executive Order." (3 FLRA at 80).
The unit found appropriate by the Authority was as follows:
"All Wage Board (WB) employees of the Department of Energy,
Western Area Power Administration, including employees classified
as Foreman I, Foreman II or Foreman III, excluding management
officials, confidential employees, employees engaged in federal
personnel work in other than a purely clerical capacity, and
supervisors as defined in the Order." (3 FLRA at 80).
By letter dated June 16, 1980, Respondent requested reconsideration
of the inclusion of Foreman I, II and III (G.C. Exh. 5) which was denied
by Order dated June 30, 1980 (G.C. Exh. 7). Certification of IBEW
issued on July 15, 1980 (G.C. Exh. 10) and on July 15, 1980, Respondent
filed a Unit Clarification Petition, dated July 7, 1980 (7-CU-24) (G.C.
Exh. 11) which sought clarification of "the status of certain persons
employed by this agency for the purpose of performing supervisory duties
as defined in the Federal Service Labor-Management Relations Statute"
namely, "Supervisory Electrician; Supervisory Lineman; Supervisory
Mechanic, Meter and Relay; Supervisory Mechanic, Electronic Equipment;
Supervisory Substation Operator; and Supervisory Communications and
Instrumentation Mechanic are clearly supervisory . . . and therefore are
excluded from the unit described in 3 FLRA 12." /12/ By letter dated
September 30, 1980 (G.C. Exh. 14), the Regional Director dismissed the
unit clarification petition for the reason, in essence, that, "The
evidence on file indicates that the positions listed . . . were
previously classified as Foreman I, Foreman II or Foreman III positions"
and, accordingly, their inclusion was governed by the Authority's prior
decisions, including its denial of WAPA's Motion for Reconsideration.
Respondent appealed the dismissal to the Authority (G.C. Exh. 15) and
the Authority, by Decision dated February 17, 1981 (G.C. Exh. 17),
denied the request for review and stated, in part, as follows:
"In its request for review of the Regional Director's
dismissal, the Activity/Petitioner contends . . . that the Foreman
II and III positions have been reclassified and that the
incumbents of those positions are currently in new classifications
with changed duties which meet the statutory criteria for
determining supervisory status. (Neither in its petition nor in
the request for review did the Agency dispute the unit inclusion
status of employees classified as Foreman I.) The
Activity/Petitioner further contends that the Regional Director
improperly refused to permit the presentation of evidence
concerning the issue of supervisory status and ignored the
Activity/Petitioner's offer of proof in this regard, and requests
that the case be remanded for a hearing. . . .
"The Authority concludes that the Activity/Petitioner's request
for review herein must be denied. In this regard, the
Activity/Petitioner has failed to make a specific offer of proof,
either before the Regional Director or on appeal, to support its
assertion that the duties performed by the incumbents of the
disputed positions have changed significantly . . . More
specifically, the Activity/Petitioner neither contends nor has it
demonstrated that the incumbents of the disputed positions no
longer perform the duties of the positions previously classified
as Foreman II and III. Further, the Activity/Petitioner has
failed to set forth what specific new duties currently performed .
. . require their exclusion from the unit as supervisors within
the meaning of section 7103(a)(10) of the Statute. Under the
foregoing circumstances, the Authority concludes that no basis has
been established to remand the subject case for a hearing . . .
"Accordingly, the request for review, seeking reversal of the
Regional Director's dismissal of the . . . Petition for
Clarification of Unit, is denied." (G.C. Exh. 17).
THE ISSUE
The issue, of course, is whether, as Paragraphs 4 and 5 of the
Complaint alleges, WAPA refused to negotiate for employees "currently
classified as Supervisory Craftsmen, and . . . has refused to recognize
said employees as members of the bargaining unit . . ." in violation of
Sections 16(a)(5) and (1) of the Statute. WAPA denied the allegations
of Paragraphs 4 and 5 of the Complaint (G.C. Exh. 25). As to Foreman I,
II, and III, which the Authority included in the bargaining unit, WAPA
asserts that it did bargain and that the agreement of the parties
reflects the wage rates agreed upon for Foremen I, II and III (G.C. Exh.
18, Supplementary Labor Agreement #3, Wage Schedules). If WAPA refused
to negotiate as to employees classified as Supervisory Craftsmen and
refused to recognize Supervisory Craftsmen as members of the bargaining
unit, as alleged in the Complaint, and, notwithstanding WAPA's denial,
the record shows, as the findings hereinafter demonstrate, it did;
nevertheless, an unfair labor practice may be found only if: a) there
was interference, restraint, or coercion of "any employee in the
exercise by the employee of any right under this chapter" (Section
16(a)(1)); or b) a refusal to consult or negotiate "with a labor
organization as required by this chapter" (Section 16(a)(5)). While the
Authority included in the unit found appropriate, "All Wage Board (WB)
employees . . . including employees classified as Foreman I, Foreman II
or Foreman III" the Authority excluded, inter alia, "supervisors as
defined in the Order." (3 FLRA at 80). WAPA asserts that Supervisory
Craftsmen are supervisors within the meaning of Section 3(10) of the
Statute and that Supervisory Craftsmen are expressly excluded as
employees by Section 3(a)(2)(iii) of the Statute.
Initially, the Charging Party and, subsequently, the General Counsel,
at the hearing, moved for Summary Judgment on the ground, in essence,
that in litigation before the Authority it had been determined that
Supervisory Craftsmen were not excluded as supervisors within the
meaning of Section 3(10) of the Statute and that there was no genuine
issue as to any material fact.
Appropriate unit determinations of the Authority are not, pursuant to
Section 23(a)(2), subject to direct review. In like manner,
certifications and/or appropriate unit determinations by the National
Labor Relations Board under the National Labor Relations Act are not
subject to direct review. American Federation of Labor v. NLRB, 308
U.S. 401 (1940); Pittsburgh Plate Glass Company v. NLRB, 313 U.S. 146
(1941). Appropriate unit determinations of the Board under the National
Labor Relations Act are, however, subject to challenge when a complaint
of unfair labor practice is made predicated upon such determination,
Pittsburgh Plate Glass Company, supra; and, by like token, appropriate
unit determinations of the Authority are subject to challenge when, as
here, a complaint of unfair labor practice is made predicated upon such
determination.
As to the threshold question as to whether a determination of the
Authority in a representation case may be relitigated in an unfair labor
practice proceeding predicated thereon, I have no doubt or reservation
that it may not, both because, as the Supreme Court stated, as to a like
situation under the National Labor Relations Act where the Trial
Examiner had refused to admit certain proof and the Board had affirmed
the ruling because it was not shown that the evidence sought to be
admitted was unavailable at, discovered since, or not introduced in, the
representation hearing,
". . . If the Company or the Crystal City Union desired to
relitigate this issue, it was up to them to indicate in some way
that the evidence they wanted to offer was more than cumulative.
Nothing more appearing, a single trial of the issue was enough."
(Pittsburgh Plate Glass Company, supra, 313 U.S. at 162.
and because decisions of the Authority are, of course, controlling in
subsequent litigation before the Authority. The fallacy of applying
this principle here is, quite simply, that the Authority has not
determined that Supervisory Craftsmen are, or are not, excluded as
supervisors within the meaning of Section 3(10) of the Statute. In its
decision determining the appropriate unit, the Authority had before it,
considered, and decided the status of Foreman I, II and III. Indeed,
the classification of "Supervisory Craftsmen" did not exist at the time
of the Authority's unit determination. It is quite true that on July
15, 1980, WAPA filed a unit clarification petition which sought
clarification of the status of certain persons, namely Supervisory
Craftsmen, who were asserted "are clearly supervisory . . . and
therefore are excluded from the unit described in 3 FLRA 12." The
Regional Director dismissed this petition on September 30, 1980, and the
Authority denied WAPA's request for review on February 17, 1981.
Although the Authority stated, inter alia, that WAPA had "failed to
make a specific offer of proof . . . to support its assertion that the
duties performed . . . have changed significantly" and that WAPA "has
failed to set forth what specific new duties . . . require their
exclusion from the unit as supervisors within the meaning of section
7103(a)(10) of the Statute", the Authority made no determination that
Supervisory Craftsmen either are, or are not, supervisors within the
meaning of Section 3(a)(10) of the Statute and its unit determination in
3 FLRA No. 12, 3 FLRA 76. In its unit determination decision, the
Authority had stated,
"The record herein does not set forth the duties, authority and
responsibilities of employees in the disputed classifications"
(Foreman I, II and III)
and,
"The record evidence is insufficient upon which a determination
of the supervisory status of Foreman I, II, and III can be based."
The Authority, quite properly, in view of the provisions of 5 U.S.C.
Section 5342(a)(2) which defined "prevailing rate employee" as "an
individual employed in or under an agency in a recognized trade or craft
. . . including a foreman and a supervisor, in a position having trade,
craft, or laboring experience and knowledge as the paramount
requirement", the bargaining history as to such "prevailing rate
employees", and the expressed Congressional approval of such practice,
simply excluded Foreman I, II and III, notwithstanding that the record
was "insufficient upon which a determination of the supervisory status
of Foreman I, II and III can be based", since, whether they were, or
were not, supervisors, the statute defines "prevailing rate employees"
as "including a foreman and a supervisor, in a position having trade,
craft, or laboring experience and knowledge as the paramount
requirement."
Nevertheless, the Authority made no determination of the supervisory
status of Foreman I, II and III. By including Foreman I, II and III in
the appropriate unit, obviously, the Authority by its exclusion of
"supervisors as defined in the Order" excluded supervisors other than
"employees classified as Foreman I, Foreman II, or Foreman III", if
Foreman I, II and III were, in fact, supervisors, which, as noted, the
Authority did not, and could not because of insufficient record
evidence, determine. Thereafter, WAPA eliminated the classification of
Foreman II and III and reclassified the incumbents as Supervisory
Craftsmen who, it asserts, are supervisory and therefore excluded from
the unit described in 3 FLRA No. 12. Had WAPA simply refused to bargain
as to Supervisory Craftsmen, it would have been necessary, to establish
an unfair labor practice, to determine in the complaint proceeding
whether they were supervisors inasmuch as the representation proceeding
had not considered the status of Supervisory Craftsmen and supervisors
were excluded from the unit found appropriate. WAPA did not, however,
do this; rather, it filed its unit clarification petition. Had the
Authority determined that Supervisory Craftsmen were not supervisors
within the meaning of its exclusion of supervisors from the appropriate
unit, I would quite agree that WAPA could not relitigate issues which
were litigated in a prior representation proceeding, cf. ABC Freight
Forwarding Corporation, Blue Ribbon Express, Inc., and
Midland-Forwarding Corporation, 194 NLRB 179 (1971); but I can not
agree that WAPA may not litigate an issue which, admittedly, could have
been litigated in the unit clarification proceeding, but was not because
the petition was dismissed. Stated otherwise, summary judgment would be
appropriate if the status of Supervisory Craftsmen had been fully
litigated. As the Court of Appeals stated in Linn Gear Company v. NLRB,
608 F.2d 791, 103 LRRM 2021 (9th Cir. 1979),
". . . In Pittsburgh Plate Glass, in contrast to the case
before us, the parties had a full and complete hearing. The court
observed that the Union (1) participated in the hearing, (2)
called witnesses, and (3) cross-examined those called by other
parties. Pittsburgh Plate Glass, supra, (313 U.S. 146, 61 S. Ct.
908, 85 L. Ed. 1251 (1941)) at 162 . . . Here, the only
affirmative action taken by Linn Gear was to consent to the
holding of the election. Nowhere did it waive its right to be
heard on the question of which employees were qualified to vote in
the election. Clearly, Pittsburgh Plate Glass is not controlling
on the record before us." (103 LRRM at 2022)
* * *
". . . the entry of summary judgment was improper and the case
must be remanded for a hearing before the Board." (103 LRRM at
2023)
(There were challenged ballots sufficient in number to affect
the outcome of the election. The Regional Director "investigated"
but did not hold a formal hearing. Whether the Regional Director
resolved the challenge of eight other ballots or, sustained the
union's challenge as to Hartl, and, therefore, did not reach the
other eight since they would then not have been sufficient to
affect the outcome, it is clear that the disposition of the
challenge of this one ballot, Hartl's, was pivotal; the Regional
Director sustained the union's challenge of Hartl's ballot;
employer, Linn Gear, refused to bargain; unfair labor practice
complaint issued and Board granted summary judgment on the basis
that ". . . a respondent in a proceeding alleging a violatin of
Section 8(a)(5) is not entitled to relitigate issues which were or
could have been litigated in a prior representation proceeding",
citing Pittsburgh Plate Glass. 236 NLRB 64 (1978))
See, also, Henderson Trumbull Supply Corporation v. NLRB, 501 F.2d
1224, 86 LRRM 3121 (2d Cir. 1974).
Similarly, although not involving objections to an election, this
case involves material and substantial issues of fact which were wholly
unresolved in the reprsentation proceeding, namely: a) the duties of
Foreman II and III; and b) the duties of Supervisory Craftsmen.
Moreover, as "supervisors as defined in the Order" were excluded from
the unit and WAPA asserts that Supervisory Craftsmen are now
supervisors, it would be both appropriate and necessary to determine in
the complaint proceedings whether, even though the Authority found that
WAPA "failed to set forth what specific new duties . . . require their
exclusion from the unit as supervisors . . . ", their duties now remove
them from the unit as supervisors within the meaning of the Statute.
Accordingly, the motions for summary judgment were denied and, the
status of Supervisory Craftsmen having been litigated, the renewed
motion for summary judgment is denied and the case will be determined on
the record.
The factual issues delineated for litigation were: the duties of
Foreman II and III and the duties of Supervisory Craftsmen. The prior
unit determination was not relitigated and it was made abundantly clear
that the Authority's prior unit determination was controlling and that
Supervisory Craftsmen would be included in the bargaining unit, as
Foreman II and III had been included in the bargaining unit, unless it
was shown that their duties now remove them from the bargaining unit as
supervisors within the meaning of the Statute.
Findings
1. Effective June 29, 1980, WAPA redescribed and reclassified "craft
supervisory positions" in a memorandum, "Subject: Classification and
Pay Rate - Wage Board Supervisory Positions" (G.C. Exhs. 8 and 9). Wage
board supervisory positions were titled "Supervisory Lineman,
Supervisory Electrician, Supervisory Mechanic, Meter & Relay", as
applicable; and Pay was fixed at two increments:
"a. 120 percent over highest rate supervised -- applicable
when the supervisory position exercises full supervisory
responsibility for more than one crew, and each crew consists of
three or more employees.
"b. 115 percent over highest rate supervised -- applicable if
criteria for the 120 percent rate is not met, but criteria for
classification as a supervisory wage board position is badly met
(see 1 above).
("1. Classification . . . The administrative policy and
criteria for allocation of a wage board supervisory position are:
"a. The position must meet the minimum supervisory
responsibilities and functions of work planning, work direction,
administration, personnel, equal employment opportunity, and
safety . . .
"b. The position must exercise the responsibilities contained
in "a" above over three or more trade and craft employees on a
regular, continuing basis.
. . . .")
2. By memorandum dated March 17, 1982, to Area Managers, to be
disseminated to all wage board supervisors on March 26, 1982, WAPA
announced its decision to adopt a single pay rate for all supervisory
wage board positions, "Our single rate is temporarily established at 115
percent over the highest journeyman craft supervised. The final rate
will be established from wage survey data collected from utilities in
the Western Area" (Res. Exh. 9). However, "During the interim between
adoption of the single pay rate and implementation of appropriate
adjustments consistent with the industry, the existing pay for all
supervisory wage board employees will be continued without change" (Res.
Exh. 9).
3. On January 13, 1981, the parties entered into a "Memo of
Understanding" which provided as follows:
"The question of whether employees formerly classified as
Foremen II and III and now classified as Supervisory Electrician,
Supervisory Linemen, etc. is presently in litigation. Should the
final decision in this case include these classifications within
the unit covered by this Agreement, the provisions of this
agreement will apply to them and their rates of pay shall be
subject to negotiation." (G.C. Exh. 18).
The Agreement, referred to in the Memo of Understanding, effective
January 18, 1981, contained wage rates for Foreman I, II and III and for
"Acting Supervisory Craftsmen" (G.C. Exh. 18, Supplementary Labor
Agreement #3, Wage Schedules).
4. By letter dated March 30, 1981, IBEW notified WAPA of its desire
to reopen bargaining, ". . . to amend our Agreement to include the
proper job titles, job descriptions, and wages for all supervisory
classifications including in our bargaining unit . . . " (G.C. Exh. 19).
5. By letter dated April 13, 1981, WAPA refused IBEW's request to
reopen bargaining, /13/ stating, in part, as follows:
"It is our view that the supervisory craftsmen are excluded
from the bargaining unit . . . Accordingly, I must respectfully
decline your request to reopen bargaining . . ." (G.C. Exh. 20).
6. The testimony, as more fully set forth hereinafter, shows that
Foreman II and III were supervisors, both within the meaning of Section
2(c) of the Order.
"(c) 'Supervisor' means an employee having authority, in the
interest of an agency, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other
employees, or responsibility to direct them, or to adjust their
grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of authority is not of
a merely routine or clerical nature, but requires the use of
independent judgment;" (E.O. 11491, as amended, Section 2(c)).
and within the meaning of Section 3(a)(10) of the Statute,
"(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
judgment, 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." (5 U.S.C. Section 7103(a)(10)).
Thus, as the testimony set forth hereinafter shows, both Foreman II
and Foreman III had responsibility for assigning work, assuring work
completion, responsibility to recommend employees for hire, promotion,
awards, or discipline, the responsibility to approve or disapprove
leave, responsibility for training, and responsibility for safety. The
record shows little about the exercise of authority by Foreman II to
adjust grievances at the informal level, but the testimony showed, at
the least, that they believed they had the authority to do so had they
been confronted with such a problem; /14/ but Foreman III did have, and
did exercise, such authority, even if, as WAPA asserts, such authority
was not exercised when the grievance was against management. Both
Foreman II and Foreman III consistently exercised independent judgment
in the exercise of their authority. The Authority has held that
employees who perform such duties are supervisors within the meaning of
Section 3(a)(10) of the Statute. See, Department of Defense, Department
of the Army, Headquarters, U.S. Army Armament, Materials Readiness
Command, Rock Island Arsenal, Illinois, 8 FLRA No. 127 (1982); National
Guard Bureau, State of New York, Division of Military and Naval Affairs,
Albany, New York, 9 FLRA No. 2 (1982). Indeed, WAPA both conceded and
asserts that Foreman II and III were supervisors.
The record further shows beyond any possible doubt that personnel
administration under WAPA has changed substantially and, clearly, there
have been significant changes as to Supervisory Craftsmen. Supervisory
Craftsmen have greater independence and supervisory responsibility, in
part, because under WAPA certain engineers and managers utilized by BR
were eliminated (Tr. 161); but principally because WAPA has unified the
duties of Supervisory Craftsmen so that each Supervisory Craftsman now
performs the full range of duties previously performed by Foreman II and
III. Although duties and functions which were more informal under BR as
to Foreman II and III have been formalized under WAPA, such as more
detailed performance appraisals, the record does not show any duty now
performed by Supervisory Craftsmen which was not performed by Foreman
III and, in most respects by Foreman II. It is certainly true that some
Foreman II may not have had, or exercised, significant responsibility
for long-range planning but some did and all had responsibility, at the
least, as Mr. Lighty, stated, for "short term" planning, i.e., monthly
planning, albeit in accordance with long range goals; that some Foreman
II had less responsibility for hiring new employees than Foreman III;
that Foreman II did not prepare performance appraisals, as Foreman III
did; nevertheless, the record shows that Foreman II had input on
long-range planning, did express preference for selection of new
employees and did give their rating of employees. On the other hand, it
can not be seriously questioned that under WAPA the supervisory
authority and responsibilities of each Supervisory Craftsman have been
clearly set forth in WAPA's master position description (G.C. Exh. 11)
and that as the result of assigning crews to each Supervisory Craftsman,
Supervisory Craftsmen were given responsibilities that some had not had
as Foremen II.
Mr. Boatman testified that craft duties performed by Supervisory
Craftsmen were the same as the craft duties performed by Foreman II and
Foreman III, i.e., as Mr. Boatman stated:
"A For the journeymen duties, yes. That's right. Depending on
the craft. An electrician performs electrician duties." (Tr. 49).
Although Mr. Boatman testified that under BR standards, Foreman II
could perform journeymen duties up to 50 per cent of their duty time and
Foreman III up to 15 per cent of the time (Tr. 50), from the record it
does not appear that either Foreman II or III "worked with the tools"
except on occasion. Certainly, the record does not support WAPA's
assertion that "Foreman II were required to perform journeymen tasks"
(Respondent Brief, p. 5).
a. Mr. Dennis Lenz, Chief, Operations Branch, Division of
Organization and Personnel.
Mr. Lenz's task was to re-examine and re-certify all position
descriptions transferred from BR. I do not question that, from a
classification standpoint, he found inconsistencies and discrepancies
(Tr. 65-70); however, for the purpose of this proceeding, only the
duties actually performed by Foreman II and III, whether these duties
changed under WAPA, and whether any change occurred after the
representation hearing, are material. Mr. Lenz was largely without
personal knowledge of the duties actually performed by Foreman II and
III. With respect to various functions, Mr. Lenz testified that, from
their job descriptions, Foreman II and III did not have "formal"
responsibility (Tr. 101), for example to recommend training for their
employees, but he understood "that they did speak to the second level of
supervisors and make suggestions and recommendations" (Tr. 80); he /15/
was not the "official rater of employee performance" but he would have
recommended (Tr. 89); he would not have formally selected any employee
on his crew, but "would have more or less advised . . . his supervisor,
his GS supervisor on what he wanted to do." (Tr. 89); if he had a
problem on his crew with one of his employees, that would "99 times out
of a hundred, elevate to the GS supervisor rather than being resolved by
the employee on site with is (sic) crew." (Tr. 89); he would "normally
have had a very limited counseling role" (Tr. 89); he would "normally
not have been involved in the grievance process under our agreement,
that would have normally elevated immediately to the GS supervisor from
a practical stand point irrespective of what the paper said." /16/ (Tr.
89). With respect to Foreman II and III generally, Mr. Lenz testified
that he believed they recommended for training. Thus, he stated,
"A I believe they recommended for training but the three that
I'm most familiar with did, in fact, make recommendations to their
GS supervisor that this employee needs hot line training, that
employee needs GMSC training." (Tr. 98).
Mr. Lenz testified that it was his understanding that some BR Foreman
II and III made recommendations for promotion and some did not (Tr.99).
Although a GS supervisor actually prepared the paper and was the
certifying official, Mr. Lenz stated,
". . . I think it would be unrealistic to assume that a GS
supervisor who actually prepares the paper and is the certifying
official, for, in pragmatic terms, would do that without talking
to the people who are actually out there doing the work for him --
* * *
"A I think from my personal knowledge now the GS supervisor, in
fact, rarely do not accept the recommendation. . . ." (Tr. 101).
As to Supervisory Craftsmen, Mr. Lenz testified that their
responsibility as supervisors has been clearly set forth. For example,
as to Mr. Klaus, who is a Supervisory C & I (Communications and
instrument) Mechanic (Tr. 85), Mr. Klaus has 4 to 6 lineman working
under him; that he is in direct charge; he assigns work; plans the
work; hires them; hasn't had occasion to discharge; imposes
discipline; makes out performance appraisals -- he is first line rater
(Tr. 86-87).
b) Mr. David Onstad, District Manager, Phoenix District
Mr. Onstad began employment with the BR as a Staff Engineer in 1963
and has held his present position with WAPA since September, 1978 (Tr.
117, 150). Mr. Onstad explained the organizational chart for the
Phoenix District (Res. Exh. 1). He stated that there was only one
Supervisory Craftsman who had been a legitimate Foreman III and this is
Mr. Lenny Ward, although two others have been "grandfathered" (Tr. 119).
As Foreman III, Mr. Ward had been in charge of the line crews and as
Supervisory Craftsman he not only directly supervises one Lineman and
four General Equipment Operators but also supervises three Supervisory
Linemen each of whom directly supervises a line crew (Tr. 119). Mr.
Ward is paid at 120 per cent of the journeyman rate and the other three
Supervisory Linemen in the Transmission Lines Branch are paid at 115 per
cent of the journeyman rate (Tr. 119). Mr. Ward's immediate supervisor
is Mr. Dale Fowler, Chief of the Transmission Lines Branch, who in turn
reports to Mr. Roy Lucas, Director of Transmission Lines and Substation
Maintenance Division, and Mr. Lucas reports to Mr. Onstad (Tr. 120).
Mr. Onstad testified that Supervisory Craftsmen assign and direct
work; and are responsible for long range planning, "They are
responsible for figuring out what they are going to be doing the next
year, the next week and the next months or so." (Tr. 120). When asked
whether the Foreman had the same responsibility prior to 1980, Mr.
Onstad testified that they did. He stated,
"A Well, they've probably been in charge of most of the long
range planning for quite some time prior to my coming to Phoenix.
They worked together with the branch chiefs to figure out what
maintenance would be done during the next year in different areas
of responsibility.
"Q What is the change then from what they are doing now with
regard to long range planning and the way it was earlier?
"A Probably not much in the area of long range planning.
"Q Any other changes with regard to their assignment and
direction of work?
"A In regard to those two areas there hasn't been much change
as far as what they do." (Tr. 120-121).
Mr. Onstad testified that all Supervisory Craftsmen approve leave
(Tr. 121); that on the transmission line crew prior to May or June of
1980, the three Foreman II's "did not approve leave for people that
worked for them. Only the foremen III in charge of the entire crew
approved leave and he did it for the whole crew." (Tr. 121); however,
Mr. Onstad stated that Foremen II's, other than the three on the line
crew, did approve leave /17/ (Tr. 141), "I believe that the ones for the
meter-relay mechanics and the electronic equipment mechanics and the
automotive mechanics I believe that they did have (leave granting
authority)" (Tr. 142). Mr. Onstad stated that when Foremen were
reclassified as Supervisory Craftsmen, "we made a change in their
responsibilities (speaking specifically of the Foreman II's on the line
crew) and assigned people directly to them and they now have the leave
approving authority for those people. They also do performance
appraisals and anything else that goes along with being a supervisor for
those people." (Tr. 121-122).
Mr. Onstad testified that there "was never a performance appraisal
made as long as I was in Phoenix until last fall (1981) . . . there was
an informal system in practice before but it was really on an exception
basis. If there was something wrong somebody would bring something
forward . . . there was never anything put in the record on a
satisfactory performance." (Tr. 122).
Mr. Onstad further testified that Supervisory Craftsmen recommend
promotions (Tr. 122; Res. Exh. 13) and that he did not believe that
Foreman II or III did (Tr. 124); that Supervisory Craftsmen make
recommendations for special achievement awards (Tr. 125; Res. Exh. 14);
and that he was not aware of a similar responsibility of Foreman II or
III (Tr. 126); that Supervisory Craftsmen certify position descriptions
(Tr. 127-128; Res. Exh. 15); that he was not aware that Foreman II or
III did so (Tr. 128); that Supervisory Craftsmen recommend training
(Tr. 129; Res. Exh. 12) and that to his knowledge Foreman II and III
did not. Mr. Onstad further testified that Supervisory Craftsmen attend
management staff meetings (Tr. 130) but also conceded that Foreman II
and III attended the "first formal staff meeting" in April, 1980 (Tr.
130-131).
c. Mr. Orlan O. Lighty, Director, Transmission Line and
Substation Maintenance Division, Sacramento, California
Mr. Lighty was initially employed by the BR as a GS supervisor at
Shasta Dam where he supervised one line crew, two electrician crews and
one electronics crew (Tr. 158). There were three Foreman III's and one
Foreman II. He began his present duties with WAPA in 1978 (Tr. 159).
Mr. Lighty testified that considerably more tasks are performed by
the supervisor now than previously with the BR because of the reduction
of levels of supervision,
"A Previously with the Bureau if you took from the crafts
supervisor up through the regional director there were six levels
of supervision where with us there were only four.
"Q Is that one of the reasons why these supervisors now have
more supervisory responsibilities?
"A They have a wider range of supervisory level and as I do
myself." (Tr. 161).
Mr. Lighty testified that, " . . . our supervisors do not perform
hands-on work." (Tr. 168; see, also, Tr. 177). He continued,
"A . . . I'm not saying that if an emergency would occur on a
tower that a foreman might go assist to get the man off. I'm
saying they are not working supervisors.
"Q . . . Did the foremen II's and III's prior to the creation
of supervisory craftsmen do hands-on work?
"A No.
"Q So there has been no change as far as that goes?
"A In the day-to-day direction of the job it's similar but the
supervisory responsibility in management and long range planning
has increased.
"Q Okay. You stated that as to this planning aspect under
U.S.B.R. there was a supervisory engineer there and he did the
planning. You said to a degree. Now, did Foreman II and III's
also get involved in long range planning?
"A It was more or less layed (sic) out as long range plans by
the GS supervisor and the foremen III's that you referred to would
be more of a monthly planning, if you call it long range. I would
call it short range myself.
"Q So he did planning for the up coming month, that type of
planning?
"A Based on the long range plans set up the supervisor.
"Q Did they participate in the development of long range
planning"
"A Yeah, I think most GS supervisors would like input from
those foremen.
"Q So they did participate in the development of the long range
planning?
"A To some degree, yes. Not totally.
"Q On the hiring aspect . . . you mentioned that today
qualified applicants were sent to the craft supervisors, they
review, interview and make a recommendation.
"When you worked for the U.S.B.R. did your foremen III's make
recommendations as to whether or not an individual should be
hired?
"A The way I personally conducted it was the personnel returned
to me a list of applicants. I reviewed and made a tenative
selection, if need be call the applicant's supervisor and
ascertain what I thought was the best man for the position. At
that point I reviewed with the foremen his feeling on that man or
another man -- let's say the better choices within the selection.
"Q You prefaced all that by saying the way you did it.
"A I can only speak for myself and as far as I know the others
did the same." (Tr. 168-170).
As to performance appraisals, Mr. Lighty testified that under the BR
Foreman II and III made appraisals but they were more informal and the
Foreman II and III were not involved in setting up the standards by
which his people were to be rated as is true with Supervisory Craftsmen.
Thus, he testified, in part, as follows:
"Q . . . Now, the primary difference what was done under
U.S.B.R. and what is done now under the Department of Energy,
Western Area, is that primary difference that the supervisors are
looking at more things because there are now performance standards
. . .
"A . . . generally what you're saying is true, however, the
consequences of their rating is much more important. . . .
* * *
"A . . . the present craft supervisor is involved in setting up
those standards by which his people be rated which is a very
critical thing. He has to be knowledgeable with what functions
need to be performed much more than before when somebody just said
here is the thing you go rate your people against. Does he report
to work on time, is he cooperating with the other employees.
Anybody could hand him that. Now he has to set up a specific
performance standard that is based on his technical knowledge.
"Q Are those standards the same for each craft?
"A No. It may be similar but there are different performance
standards for different crafts." (Tr. 172-173).
With regard to awards, Mr. Lighty stated that Supervisory Craftsmen
definitely make recommendations for awards (Tr. 163) and when asked how
it was handled in the BR, stated,
"A I think there were occasions where they did make
recommendations for approval. They may or may not have written it
up. In many cases they recommended their people verbally and the
GS supervisor wrote up the recommendation." (Tr. 163).
With regard to the Foreman II and Foreman III handling grievances,
Mr. Lighty stated, in part, as follows:
"WITNESS: The particular example, sir, was between two
employees that were within his own crew he would probably try to
resolve it himself. If it were between himself and a member of
his crew or between two crew then he would obviously want support
from somebody above him. . . ." (Tr. 164).
When a grievance was between an employee and management, Mr. Lighty
said the Foreman would, "More likely refer it." (Tr. 165). Mr. Lighty
testified that Supervisory Craftsmen,
"A Because of the remoteness of some of these crews and the
lack of a GS supervisor in that area, they would attempt to
resolve everything at the lowest possible level. That is our
policy." (Tr. 166).
Mr. Lighty stated that Supervisory Craftsmen regularly attend
steward-management meetings (Tr. 166). While Foremen, prior to 1980,
attended "by invitation rather than on a regular schedule" (Tr. 166);
that Supervisory Craftsmen regularly attend monthly management meetings
(Tr. 166); but that such meetings were not "a regularly scheduled
thing" under the BR; however, Foreman II and Foreman III would, by
invitation, attend certain ones (Tr. 167).
d) Mr. William R. Miller, Supervisory Craftsmen
Mr. Miller began employment with the BR in 1957 as a lineman. He was
promoted to Foreman III in 1967 (Tr. 184). His title is now Supervisory
Craftsman (Tr. 185). Both as a Foreman III and now as a Supervisory
Craftsman he had four linesmen under him and at one time also had a
groundman (Tr. 185). He stated that he did not have as Foreman III, and
does not have as Supervisory Craftsman, any authority to furlough,
layoff, or to recall employees (Tr. 185).
Mr. Miller stated that as a Foreman III with the BR he rated
employees,
"A We had a performance appraisal that we did once a year and
it had various categories layed (sic) out. You would judge a man
on how he mastered his capabilities or didn't master them. When
you were through with it you sat down and talked to the individual
and he either agreed or disagreed with your appraisal." (Tr. 186).
Mr. Miller stated that these appraisals continued until 1977 when he
became an employee of WAPA; that from that time, 1977, until 1980, no
performance appraisals were made, " . . . because we didn't have the
organization to do it", not a lack of authority (Tr. 197). As a
Supervisory Craftsman, he has made one appraisal of employees working
for him,
"A We have another type of appraisal form and we also have the
critical elements and you judge the man on the elements . . . and
you sit down with him and go over it with him and explain it to
him and he signs it." (Tr. 186).
Mr. Miller stated that both as a Foreman III with the BR and now as a
Supervisory Craftsman: he granted annual leave; vacation leave
requests; sick leave (Tr. 187-188). With respect to informal
grievances he did the same as Foreman III as he does as a Supervisory
Craftsman (Tr. 188). Thus, he stated,
"A I would say if a man came to me and was unhappy about the
overtime I gave him the day before and he and I would sit down and
talk about it and I would decide in his favor of it I was still
convinced he didn't have it coming I would send him to talk to his
shop steward.
"Q Is that any different now in your capacity as a supervisory
craftsman at Western. Do you do the same thing?
"A No different." (Tr. 188).
Mr. Miller testified that as a Foreman III with the BR he had had
occasion to recommend disciplinary action to his supervisor (Tr. 191);
and that as Supervisory Craftsman he has the same authority to recommend
disciplinary action to his supervisor. Mr. Miller stated that as a
Foreman III he had recommended hiring and firing of an employee; that
he hired two apprentices and two or three linemen and he let a man go on
his probationary period (Tr. 191). More accurately, Mr. Miller said he
shouldn't say he hired them, he decided on which one was the man he
wanted and told his supervisor this was the man he would like to have
(Tr. 191-192); that this is the same procedure he now follows as a
Supervisory Craftsman, "I hired two the same way . . . I read their
application and their form and talked to them, recommended to my
supervisor this is the man I want." (Tr. 192). Mr. Miller stated that
he had, both as a Foreman III with the BR and as Supervisory Craftsman,
recommended promotion to acting foreman (Tr. 192). He has never
recommended promotion of apprentices to journeymen because that is done
by the apprenticeship committee (Tr. 192); and while he has authority
to recommend that somebody be held back he had never done so. (Tr.
192-193). He stated that as a Foreman III he "recommended to my
supervisor that there was a craftsman I thought should get an award and
he processed it." (Tr. 193); that it is done the same way now (Tr.
193).
As a Foreman III he did receive required supervisory training,
"A I took training on how to listen, to talk to people and role
playing and how to settle grievance and work out problems.
"Q Who else attended the supervisory training courses besides
foremen III?
"A GS people.
"Q Did other foremen participate?
"A Yes.
* * *
"Q Just the foremen III?
"A Yes." (Tr. 193-194).
Mr. Miller, when asked if he certified position descriptions at the
BR said, "I'm sure I did, but I don't remember any certain instances but
I'm sure I did." (Tr. 195). He further stated that he had done so as a
Supervisory Craftsmen (Tr. 195).
When asked whether there was any change in his function as a
Supervisory Craftsman as compared to Foreman III with the BR, Mr. Miller
testified as follows:
"Q Now you were asked about a number of specific supervisory
duties. Just as a general question do you have more supervisory
responsibilities today with Western than you had with the Bureau
of Reclamation?
"A No.
"Q Unchanged?
"A I have -- the only more responsibilities I have are because
I'm in a remote area now. I don't have any supervision at Tracy.
I used to be able to walk across the street and see my boss now I
have to call him on the telephone or drive to Sacramento.
* * *
"Q . . . Could you tell us specific examples, for example, the
long range planning, do you have more responsibility now than you
had with the Bureau?
"A No, it's the same.
"Q But there is a difference of supervisory responsibilities?
"A I don't say responsibility, I'd say duties.
"Q For example?
"A Well, something might come up, say a line come down, and I
had to go on and work on it right away. I could not reach my
supervisor to authorize the overtime. I would go ahead and
exercise my own judgment and do the work without prior approval.
"Q What would you have done at the Bureau of Reclamation?
"A My boss would have been right there and I would have asked
him. If he wasn't there there would have been a succession that I
could have talked to." (Tr. 201-202).
When asked if he performed any craft duties as a Supervisory
Craftsman, Mr. Miller said, "Very small. For all intents and purpose I
don't perform any" and he did not as a Foreman III with the BR (Tr.
202-203).
As to long range planning with the BR, Mr. Miller stated it was
accomplished by,
"A Attending meetings with the other craft supervisors, other
craft foremen III's and our supervisors.
"Q How do you do it now?
"A We do the same thing now." (Tr. 203).
e) Mr. Norman Miller, Supervisory Craftsman
Mr. Norman Miller (hereinafter referred to as "N. Miller" to
distinguish him from Mr. William R. Miller), was employed in 1960 by the
BR as a communication and instrumentation mechanic at Folsom (Tr. 204).
He had a four year apprenticeship before becoming a journeyman
electrician (Tr. 205). In 1979, Mr. N. Miller became a Foreman II with
WAPA (Tr. 204, 205, and 219) and is now a Supervisory Craftsman (Tr.
205). Mr. N. Miller is now located at Alberta and has three crews in
three different areas, one at Alberta, one at Kezwick and one at Tracy
(Tr. 205). He has under him communication and instrumentation
mechanics, meter and relay mechanics. There are two employees in two of
the crews and three in the other, a total of seven (Tr. 205). He has
performed an annual performance evaluation as Supervisory Craftsman (Tr.
205), but had no official evaluation program while he was a Foreman II
with WAPA, "just talked to them once in a while and told them how they
were doing or what was expected of them" (Tr. 206) and informally told
his supervisor "the people were doing fine or weren't doing fine." (Tr.
206). Mr. N. Miller stated that there had been no change except "now, .
. . we have paper that we do use and there's, as I understand it, at
least once a year we sit down and do it formally." (Tr. 206).
While a journeyman with the BR his supervisor was a Foreman II (Tr.
207) and the Foreman II evaluated him, "The same way, he sat down with
me with a form and we went through it and I signed it and he signed it."
(Tr. 207).
As a Foreman II with WAPA, Mr. N. Miller had, and exercised,
authority to grant annual and sick leave (Tr. 207) and approved vacation
leave (Tr. 208). While a journeyman with the BR, his Foreman II
approved leave the same way (Tr. 208). While he was a journeymen with
the BR, Mr. N. Miller stated that the Foreman II did participate in
informal grievance proceedings (Tr. 208-209). As a Foreman II with WAPA
he recommended hiring, "looked at the applications and rated them
informally and recommended who I thought was best" (Tr. 210); made the
recommendation to his immediate supervisor and does the same thing as a
Supervisory Craftsman (Tr. 210). Mr. N. Miller has never exercised
authority with respect to promotions and did not know whether there had
been any change (Tr. 212); and he has never taken disciplinary action
although he "felt" he could recommend discipline both as a Foreman II
and as a Supervisory Craftsman (Tr. 212). Mr. N. Miller had 40 hours
introduction to supervision under OPM and later went to a supervisory
training seminar for 40 hours (Tr. 213) but the record does not show
when he received this training.
Mr. N. Miller stated that he did not "believe" he had any authority
"even to recommend" furlough, layoff or recall (Tr. 214). Mr. N. Miller
stated that he is now involved in long range planning (Tr. 215), and
that, in the same manner, he had been involved in long range planning as
a Foreman II (Tr. 215); that he "planned the various jobs and
maintenance, ordered equipment and supplies and scheduled." (Tr. 215;
216); that as a Supervisory Craftsman there has been no change (Tr.
216). Mr. N. Miller stated there had been no change in his supervisory
duties since he became a Supervisory Craftsman (Tr. 214, 215). As a
Supervisory Craftsman, Mr. N. Miller performs craft duties about 10 per
cent of the time. When asked if there were any difference in the amount
of time he spent performing craft duties as a Foreman II with WAPA, Mr.
N. Miller replied,
"A Yes and no. Part of the -- I performed more when I was a
foreman II because I only had one meter relay mechanic under me
originally and a lot of the work was done by contract by the
Bureau of Reclamation C and I crews and I advised their foremen,
their C and I foreman as to the work I would like to have them do
and I picked up part of it myself but then when they hired an
additional six people I did less and less work." (Tr. 217-218).
f) Mr. Lyle Lockwood, Supervisory Craftsman
Mr. Lockwood was initially employed by the BR in 1950 (Tr. 223),
became a Foreman III in 1966 (Tr. 223), and had been a Foreman II for
some period (Tr. 234). He is a journeyman electrician (Tr. 223). He
has been employed by WAPA since its inception and is now Electrical
Supervisor (Tr. 223, 224). As a Foreman III at the BR he was involved
in long range planning, "I planned our maintenance work at least a year
ahead, I had a year's schedule" (Tr. 224). He filled out the work
schedule and it was approved by his supervisor (Tr. 224). As a
Supervisory Electrician long-range planning has not changed at all,
"It's just the same as it was when I was with the Bureau." (Tr. 224).
As a Foreman III he did not work with the tools nor does he now work
with the tools (Tr. 224-225).
As a Foreman III he evaluated or rated employees and does so now. He
stated, "Under the Bureau we had . . . a performance appraisal system
and later WAPA put in or has instituted a new system . . ." He explained
that under WAPA, "We have a set of duties that are involved with a
certain craft. We follow through those duties and counsel him or talk
to him about those duties and whether or not he is fulfilling his
duties. If not we counsel him as to why and then we do the formal
appraisal and that is sent in to my supervisor for approval . . ." (Tr.
226); he stated that with the BR he did, "The same but the format was a
little bit different but as far as evaluations were concerned it was the
same." (Tr. 226; 227).
He granted annual and sick leave as a Foreman III with the BR and
does so now as a Supervisory Craftsman (Tr. 227-228) and there has been
no change. With respect to grievances, Mr. Lockwood, stated,
"A Well, if a person has a problem or whatever he comes to me
as his supervisor first and we discuss it. If I can't resolve it,
and normally we can, but if I can't resolve it it goes to the shop
steward and then, as far as I'm concerned, is when the grievance
procedure starts. He goes on up. I'm no longer involved in it.
He goes on up to my supervisor.
"Q Was that the case at the Bureau of Reclamation?
"A Yes.
"Q Is that the case now at Western?
"A Yes.
"Q Has there been any change in your function since you became
a supervisory electrician?
"A No." (Tr. 228).
Mr. Lockwood testified that he had recommended disciplinary action as
a Foreman III with the BR (Tr. 228) and had done so with WAPA (Tr. 229).
In each instance, the recommendation was to his supervisor (Tr. 228,
229). Mr. Lockwood said he did not have authority to hire and fire as a
Foreman III but could, and did, recommend "from looking at the job
applications the person I felt was best qualified." (Tr. 229); that
this has not changed (Tr. 229). Mr. Lockwood stated that he had never
had occasion to recommend promotions (Tr. 229) but both as Foreman III
and as Supervisory Craftsman he has appointed acting foreman (Tr.
229-230). He has recommended that employees be given awards both as
Supervisory Craftsman and at the BR and in each instance he made the
recommendation to his supervisor (Tr. 230). He had supervisory training
as a Foreman III with the BR as did Foremen I's and II's (Tr. 231);
that he had had further training with WAPA (Tr. 231). As a Supervisory
Craftsman he did object to certain position descriptions; his
objections were made to his supervisor and the position descriptions
were changed (Tr. 232). He never had "an occasion to at Reclamation"
(Tr. 232). Mr. Lockwood said there were no changes in his supervisory
duties as a Supervisory Craftsman (Tr. 232). Indeed, he further stated
that there had been no change in his duties when he went from Foreman II
to Foreman III (Tr. 234), the only distinction being that as Foreman II
he could, and did on occasion, work with the tools (Tr. 234) but did not
as a Foreman III (Tr. 235). Mr. Lockwood testified that as a Foreman II
he engaged in the same kind of performance appraisal as he did as a
Foreman III (Tr. 235); that Foreman II at the BR interviewed applicants
for jobs and made recommendations in regard to selections (Tr. 235-236).
g. Mr. Vincente Abeyta, Supervisory Craftsman
Mr. Abeyta was initially employed by the BR as an apprentice in 1947
(Tr. 239), worked as a journeyman electrician from 1951 until 1979 when
he became a Foreman II with WAPA (Tr. 239-241). Mr. Abeyta stated that
the Branch Chief and he, as a Supervisory Craftsman, met with the
administrative officer and set up standards for an electrician, heavy
duty mechanic and then rated employees by that (Tr. 242); that while a
Foreman II with WAPA, "We didn't use to do it except -- we just said
efficiency rating." (Tr. 242).
Both as a Foreman II and now as a Supervisory Craftsman, Mr. Abeyta
approved annual and sick leave (Tr. 242); that there has been no change
(Tr. 242). He had supervisory training when he became a Foreman II (Tr.
243). He has not as a Foreman II or Supervisory Craftsman been involved
in handling informal grievances (Tr. 244); however, he testified that,
"A Well, as a steward I was called in to try and resolve a
grievance and I went to the first line supervisor which if it was
a journeyman, it would be a foreman and most were resolved right
there. There were a few that went into a formal grievance and as
steward I filled out the form and turned it over to the assistant
manager and it left my hands. I was out of it. . . ." (Tr. 250).
As a Foreman II he did not have authority to hire new employees but
had authority to recommend which he did only once (Tr. 245), and he has
the same authority as Supervisory Craftsman (Tr. 245). He has never
recommended disciplinary action (Tr. 245) but such recommendation would
be made to his supervisor (Tr. 245). He also has not recommended any
awards (Tr. 246).
h) Mr. Ronald D. Dockins, Journeyman
Mr. Dockins was hired by the BR as a journeyman lineman in about 1975
(Tr. 267); has been a lineman with WAPA since its inception; and is
President and Business Manager of Local 1759, IBEW. When hired, he
worked under a Foreman II; when he transferred to Casper, he worked
under a Foreman III; and he now works under a Supervisory Craftsman
(Tr. 267-268). Mr. Dockins testifies that he had observed no change in
the duties of the supervisor (Tr. 269). All kept time and attendance
records, approved leave, assigned work (Tr. 269-270). He stated, as to
assignment of work,
"A The foreman would line out the work in the morning,
regardless Foreman II, Foreman III. There really wasn't that much
difference. Foreman II was allowed to work; Foreman III wasn't
allowed to do as much work as a Foreman II.
"The difference in the application or the way they give me
duties, they would instruct you on what we had to do everyday at
the beginning of the day and you'd go do your job. And I seen no
difference in their duties in the transition.
"Q That is still the way its done, to your knowledge?
"A Yes." (Tr. 270).
Mr. Dockins said, "Well, the Foreman II was more or less classified
as a working foreman" (Tr. 275) and "what they did before they're still
doing, the same with the Foreman III. The title changed, it made no
difference, really, in work." (Tr. 275).
CONCLUSIONS
Foreman II and Foreman III were supervisors within the meaning of
Section 2(c) of Executive Order 11491. The fact that some Foreman II's
did not have certain authority, for example, to approve leave, did not
mean that they were not supervisors. The Council had made clear that
Section 2(c) must be applied in the disjunctive and that, ". . . and
individual who possesses the authority to perform a single function
described in section 2(c), provided he does so in a manner requiring the
use of independent judgment, is a supervisor. . . ." United States Naval
Weapons Center, China Lake, California, FLRC No. 72A-11, 1 FLRC 404;
A/SLMR No. 297, 3 A/SLMR 459 (1973); see, also, Mare Island Naval
Shipyard, Vallejo, California, FLRC No. 72A-12, 1 FLRC 410; A/SLMR No.
298, 3 A/SLMR 464 (1973), and the record is clear, as Mr. Onstad
conceded and as the record otherwise shows, that all Foreman II were in
charge of crews, assigned and directed work, and participated in
planning "to figure out what maintenance would be done. . . ." Nor were
they "working foremen" in the usual sense of the term as the record
shows that, while Foremen II were permitted to "work with the tools",
most Foremen II's did not "work with the tools" at all and, so far as
the record shows, those who did, did not spend more than 10 per cent of
their duty time in performing craft work. Thus, Foreman II were
principally, if not exclusively, supervisors. Accordingly, because they
possessed one or more of the characteristics described in Section 2(c)
and consistently exercised independent judgment in the performance of
their duties, Foremen II were supervisors. Accord, Department of
Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona,
A/SLMR No. 1151, 8 A/SLMR 1246 (1978). Of course, Foreman III possessed
all of the authority of Foreman II and in some respects broader
authority and responsibility and they did not "work with the tools".
They too, consistently exercised independent judgment in the performance
of their duties and were supervisors within the meaning of Section 2(c)
of the Executive Order.
WAPA, effective June 29, 1980, reclassified Foreman II and III as
Supervisory Craftsmen. The record is clear that Supervisory Craftsmen
are supervisors within the meaning of Section 3(a)(10) of the Statute.
While Supervisory Craftsmen perform all duties they previously performed
as Foreman II or Foreman III, the record shows that the range of
supervisory responsibility has substantially changed. Thus, crews were
directly assigned to each Supervisory Craftsman and each Supervisory
Craftsman performs the full range of supervisory functions including:
granting of leave, initiating recommendations for awards or for
discipline, performance appraisals, recommends hiring, participates
fully in long range planning. As Supervisory Craftsmen, they
participated, beginning in 1981, in the development of performance
standards, pursuant to 5 U.S.C. Section 4302, and appraised employees
assigned to them in the fall of 1981. WAPA has reduced the levels of
supervision that previously existed and Supervisory Craftsmen have
greater supervisory responsibility than Foremen II's and III's had under
the BR. WAPA on March 17, 1982, further unified the duties of
Supervisory Craftsmen by adopting a single pay rate for all supervisory
wage board positions.
Consequently, the record does show: a) that Supervisory Craftsmen
are supervisors within the meaning of Section 3(a)(10) of the Statute;
b) that supervisory duties of Supervisory Craftsmen have been
substantially broadened so as to include all supervisory responsibility
previously performed by both Foremen II and Foremen III; c) that WAPA's
reduction of the levels of supervision has resulted in increased
supervisory responsibility of Supervisory Craftsmen; and d) that as
Supervisory Craftsmen they not only make performance appraisals, as
Foremen II and III had done with the BR, but they participate in the
development of performance standards, including the critical elements of
the positions under their supervision.
Do the present duties of Supervisory Craftsmen constitute them
"supervisors" which were excluded by the Authority from the bargaining
unit or are they included in the bargaining unit because they are craft
supervisors whose duties are so essentially like the duties of Foreman
II and Foreman III that they are, and remain, the class of supervisors
which the Authority included in the bargaining unit as Foreman II and
Foreman III? For reasons set forth hereinafter, I conclude that
Supervisory Craftsmen are included in the bargaining unit as the same
class of supervisors which the Authority included as Foreman II and
Foreman III and that they are not "supervisors as defined in the Order"
which the Authority excluded from the bargaining unit. Moreover, as set
forth hereinafter, the Statute expressly authorizes the inclusion of
such supervisors in bargaining units, notwithstanding that, except under
very narrow exceptions as provided in the Statute, supervisors must be
excluded from appropriate bargaining units.
At least as early as 1949, Congress in the Classification Act of 1949
removed "employees in recognized trades or crafts, or other skilled
mechanical crafts, or in unskilled, semiskilled, or skilled manual labor
occupations . . ." (P.L. 429, Chapter 782, 63 Stat. 954) from the plan
for classification of positions and for rates of basic compensation and
provided that their "compensation shall be fixed and adjusted from time
to time as nearly as is consistent with the public interest in
accordance with prevailing rates" (P.L. 429). The Classification Act of
1949 did not, with respect to prevailing wage employees, specifically
refer to foremen or supervisors; but Congress did so in 1954 when
Paragraph (7), above, was amended as follows:
"(7) employees in recognized trades or crafts, or other skilled
mechanical crafts, or in unskilled, semiskilled, or skilled manual
labor occupations, and other employees including foremen and
supervisors in positions having trade, craft, or laboring
experience and knowledge as the paramount requirement. . . The
compensation of such employees shall be fixed and adjusted from
time to time as nearly as is consistent with the public interest
in accordance with prevailing rates. . . ." (P.L. 763, Chapter
1208, 68 Stat. 1106)
This language, as pertinent, is continued in 5 U.S.C. Section
5102(c)(7) and, further, is part of the definition of "prevailing rate
employee" in 5 U.S.C. Section 5342(a)(2)(A).
Of course, directly, Congressional authorization to include foremen
and supervisors as prevailing rate employees did not treat with their
inclusion in bargaining units. Indeed, there was no general program for
federal employee labor relations until January 17, 1962, when Executive
Order 10988 became effective; nevertheless, the BR, among others,
voluntarily bargained, in the case of the BR with IBEW, and prevailing
wage, i.e. craft, supervisors were included in bargaining units, as the
Assistant Secretary found, in Department of Interior, Bureau of
Reclamation, Yuma Projects Office, Yuma, Arizona, A/SLMR No. 1151, 8
A/SLMR 1246 (1978), "since the late 1940's". Executive Order 10988 did
not define "supervisor"; permitted any employee to be an officer or
representative, except where there was a conflict of interest or to do
so would otherwise be incompatible with law or official duties (Sec.
1(b)); provided that supervisor organizations may be recognized as
"employee organizations" (Sec. 1, 2); and authorized continuation or
renewal of lawful agreements between agencies and organizations entered
into prior to January 17, 1962 (Sec. 15).
Executive Order 11491, October 29, 1969, made changes with respect to
supervisors, including: prohibition by a supervisor of participation in
the management or representation of a labor organization except as
provided in Section 24 of the Order (Sec. 1(b)); defined supervisor
(Sec. 2(c)); Labor organization defined to exclude management officials
or supervisors (Sec. 2(e)); separate intra-management communication and
consultation with its supervisors or associations of supervisors
provided for (Sec. 7(e)); however, the Order continued the same
authorization for continuance or renewal of lawful agreements entered
into prior to January 17, 1962 (Sec 24(a)(1)) which was stated,
"Continues 'grandfather' provision of Executive Order 10988.
Currently applicable to TVA and certain agreements in Interior and
Transportation." (Comparative Analysis, Labor-Management Relations
In The Federal Service, Report and Recommendations, Executive
Order 11491, October 29, 1969).
Executive Order 10988 had provided that except where required by
established practice, prior agreement or special circumstances, no unit
shall be established for exclusive recognition which includes any
managerial executive or both supervisors and the employees whom they
supervise (Sec. 6(a)). Executive Order 11491 permitted the continuation
of this exception which was stated was intended,
" . . . for managerial and supervisory representation by labor
organizations in maritime industry which represent officers and
crews of vessels. Applicable to MEBA, MMP, NMU, SIU, and UTW."
(Comparative Analysis, supra).
The two exceptions of Executive Order 11491 provided as follows:
"Sec. 24. Savings clauses. (a) This Order does not preclude
--
(1) the renewal or continuation of a lawful agreement between
an agency and a representative of its employees entered into
before the effective date of Executive Order No. 10988 (January
17, 1962); or
(2) the renewal, continuation, or initial according of
recognition for units of management officials or supervisors
represented by labor organizations which historically or
traditionally represent the management officials or supervisors in
private, industry and which hold exclusive recognition for units
of such officials or supervisors in any agency on the date of this
Order." (E.O. 11491, Section 24(a)(1) and (2)).
Although E.O. 11491 was subsequently amended, Section 24, as set
forth above, remained unchanged.
In 1972, Congress enacted P.L. 92-392, entitled "Government Employees
-- Prevailing Rate System" which extensively revised the Prevailing Rate
Program, authorized, as noted above, at least as early as 1949;
however, Congress specifically provided that agreements negotiated prior
thereto were not to be abrogated, modified or affected. Thus,
Subchapter IV, Section 9(b) of P.L. 92-392, provided, in part, as
follows:
"(b) The amendments made by this Act shall not be construed to
--
(1) abrogate, modify, or otherwise affect in any way the
provisions of any contract in effect on the date of enactment of
this Act (August 19, 1972) pertaining to the wages, the terms and
conditions of employment, and other employment benefits, . . . for
Government prevailing rate employees and resulting from
negotiations between Government agencies and organizations of
Government employees;
(2) nullify, curtail, or otherwise impair in any way the right
of any party to such contract to enter into negotiations after the
date of enactment of this Act (August 19, 1972) for the renewal,
extension, modification, or improvement of . . . such contract or
for the replacement of such contract with a new contract; or
(3) nullify, change, or otherwise affect in any way after such
date of enactment (August 19, 1972) any agreement, arrangement, or
understanding in effect on such date with respect to the various
items of subject matter of the negotiations on which any such
contract in effect on such date is based or prevent the inclusion
of such items of subject matter in connection with the
renegotiation of any such contract, on the replacement of such
contract with a new contract, after such date." (P.L. 92-392,
Subchapter IV, Section 9(b); 5 U.S.C.A. Section 5343, note).
In 1978, as part of the Civil Service Reform Act, P.L. 94-454, 92
Stat. 1111 et seq., Congress enacted Section 704 which provides, in
part, as follows:
"Sec. 704. (a) Those terms and conditions of employment
benefits with respect to Government prevailing rate employees to
whom section 9(b) of Public Law 92-392 applies which were the
subject of negotiations in accordance with prevailing rates and
practices prior to August 19, 1972, shall be negotiated on and
after the date of the enactment of this Act in accordance with the
provisions of section 9(b) of Public Law 92-392 without regard to
any provision of Chapter 71 of title 5, United States Code (as
amended by this title), to the extent that any such provision is
inconsistent with this paragraph.
(b) The pay and pay practices relating to employees referred to
in paragraph (1) of this subsection shall be negotiated in
accordance with prevailing rates and pay practices without regard
to any provision of --
"(A) Chapter 71 of title 5, United States Code (as amended by
this title), to the extent that any such provision is inconsistent
with this paragraph; . . . " (P.L. 95-454, 92 Stat. 1218)
The Statute (Title VII, Chapter 71) includes the following
provisions which are directly of interest:
Section 12(b) provides, in part, as follows:
"(b) . . . nor shall a unit be determined to be appropriate if
it includes -
"(1) except as provided under section 7135(a)(2) of this title,
any management official or supervisor; . . . " (5 U.S.C. Section
7112(b); P.L. 95-454, 92 Stat. 1200).
Section 35 provides, in part, as follows:
"(a) Nothing contained in this chapter shall preclude --
"(1) the renewal or continuation of an exclusive recognition,
certification of an exclusive representative, or a lawful
agreement between an agency and an exclusive representative of its
employees, which is entered into before the effective date of this
chapter; or
(2) the renewal, continuation, or initial according of
recognition for units of management officials or supervisors
represented by labor organizations which historically or
traditionally represent management officials or supervisors in
private industry and which hold exclusive recognition for units of
such officials or supervisors in any agency on the effective date
of this chapter.
. . ." (5 U.S.C. Section 7135(a); P.L. 95-454, 92 Stat. 1215)
From the foregoing, it is plain that "prevailing rate employee" has
specifically included since 1954, and apparently by implication and
practice since at least 1949, "a foreman and a supervisor, in a position
having trade, craft, or laboring experience and knowledge as the
paramount requirement" (5 U.S.C. Section 5342(a)(2)(A); P.L. 763,
Chapter 1208, 68 Stat. 1106; P.L. 429, Chapter 782, 63 Stat. 954).
Both Executive Order 10988 and Executive Order 11491 specifically
authorized the continuation or renewal of agreements between agencies
and unions entered into prior to January 17, 1962, the date that
Executive Order 10988 became effective; and both Executive Order 10988
and Executive Order 11491 had specifically authorized inclusion of
supervisors in appropriate units with employees supervised where
required by established practice, prior agreement or special
circumstances (E.O. 10988) or "for units of management officials or
supervisors represented by labor organizations which historically or
traditionally represent the management officials or supervisors in
private industry. . . ." (E.O. 11491). Not only are both of these
exceptions carried over in Section 35 of the Statute, but Section 12(b)
of the Statute which provides that a unit shall not be determined to be
appropriate if it includes "any management official or supervisor,
expressly excepts management official or supervisor as provided under
Section 35(a)(2) of the Statute. As noted above, the Assistant
Secretary, in Department of Interior, Bureau of Reclamation, Yuma
Projects Office, Yuma, Arizona, supra, with respect to the exception of
Section 24 of Executive Order 11491, held, in pertinent part, that,
". . . noting particularly the history of representation by the
IBEW of the employees at issue in a mixed unit, their coverage
under a succession of lawful agreements since the late 1940's, and
the fact that historically the IBEW has represented similar
employees in private industry, I find that the IBEW's unit herein,
containing both supervisory and nonsupervisory employees,
continues to be viable pursuant to Section 24 of the Order." (8
A/SLMR at 1248).
If there were any doubt as to Congressional intent concerning
negotiation as to Government "prevailing rate employees" it was
certainly removed by the enactment of Section 704 of P.L. 95-454 which
specifically provided that "The pay and pay practices . . . shall be
negotiated in accordance with prevailing rates and pay practices without
regard to any provisions of -- (A) Chapter 71 of title 5 . . . to the
extent that any such provision is inconsistent with this paragraph".
The Authority in the representation proceeding in this case stated,
in part, as follows:
". . . it appears from the record that, prior to the
establishment of DOE and WAPA, and dating back to the 1950's the
wages of these employees (Foremen) were determined by negotiation
on a prevailing wage basis, that is, by wage survey of identical
craft positions within the area of jurisdiction of the respective
IBEW locals here involved. This scope of bargaining enabled USBR
to compete with private industry in attracting employees with the
high degree of competence required for the fulfillment of the
agency's mission. . . ." (3 FLRA at 80).
Obviously, from the Authority's discussion, the supervisors in
question were prevailing rate foremen or supervisors who, by statutory
definition, were foremen or supervisors "having trade, craft, or
laboring experience and knowledge as the paramount requirement."
Although then designated Foreman II and III (Foreman I are not in
dispute), the supervisors included by the Authority in the appropriate
unit were prevailing rate supervisors and while now designated
Supervisory Craftsmen, Supervisory Craftsmen plainly are prevailing rate
supervisors "having trade, craft, or laboring experience and knowledge
as the paramount requirement" precisely as were Foreman II and III.
The fact that Supervisory Craftsmen have different duties, which has
resulted in many having substantially greater supervisory responsibility
than possessed by Foreman II's in particular, has not altered in any
manner their status as prevailing rate employees. That they are
prevailing rate employees, namely supervisors "having trade, craft, or
laboring experience and knowledge as the paramount requirement" is
shown, inter alia, by their title; by the fact craft duties performed
by Supervisory Craftsmen are journeymen's duties of the craft, "An
electrician performs electrician duties"; by the fact that they are
wage board employees; and by the fact that they continue to perform all
the duties previously performed by Foreman II and Foreman III. And that
they are prevailing rate employees is firmly shown by WAPA's
determination of March 17, 1982, that "The final rate will be
established from wage survey data collected from within utilities in the
Western Area" as well as by WAPA's initial determination of two pay
increments based on percentages "over highest rate supervised" which, in
turn were prevailing rates determined on a prevailing wage basis by wage
survey as authorized by statute. Indeed, if Supervisory Craftsmen were
not prevailing rate employees, their rates of basic pay would be
governed by the General Schedule and WAPA would be without authority to
vary from the General Schedule.
Nothing in the Statute precludes the inclusion of supervisors in the
bargaining unit pursuant to Section 35(a) where the exclusive
recognition or certification preceeded the effective date of the
Statute; or for the renewal, continuation, or initial according of
recognition for units of management officials or supervisors represented
by labor organizations which historically or traditionally represent
management officials or supervisors in private industry and which hold
exclusive recognition for units of such officials or supervisors in any
agency on the effective date of the Statute; however, even if the
Statute, i.e. Chapter 71 of P.L. 95-454, did preclude the inclusion of
supervisors in the bargaining unit, Congress, by Section 704 of P.L.
95-454, expressly qualified the provisions of Chapter 71 so that,
notwithstanding any provision of Chapter 71, terms and conditions of
Government prevailing rate employees to whom section 9(b) of Public Law
92-392 applied which were the subject of negotiations in accordance with
prevailing rates and practices prior to August 19, 1972, shall be
negotiated on and after the date of enactment of this Act (October 13,
1978) in accordance with the provision of section 9(b) of Public La-
92-392.
I conclude that the authority's exclusion of "supervisors as defined
in the Order" meant supervisors other than prevailing rate supervisors;
and that the Authority, by its inclusion of Foreman I, II and III in the
bargaining unit, included all prevailing rate supervisors. Supervisory
Craftsmen are craft supervisors, are wage board employees, have "trade,
craft, or laboring experience and knowledge as the paramount
requirement", are prevailing wage employees, and prior to August 19,
1972, craft supervisors, then designated Foreman I, II and III, were
covered by collective bargaining agreements and they were subject to
negotiations within the meaning of Section 9(b) of Public Law 92-392.
As prevailing wage employees, Supervisory Craftsmen are not excluded as
"supervisors as defined in the Order" (now the Statute); and as
prevailing wage employees they are included in the bargaining unit as if
they were Foreman II and III since their status as prevailing rate
employees, namely foremen or supervisors "having trade, craft, or
laboring experience and knowledge as the paramount requirement", is
precisely the same as it had been when they were designated Foreman II
and Foreman III.
Accordingly, having found that Supervisory Craftsmen, previously
designated Foreman II and Foreman III, were included by the Authority in
the appropriate bargaining unit and, conversely, that the Authority
excluded only non-prevailing rate supervisors, WAPA's refusal to bargain
concerning Supervisory Craftsmen violated Sections 16(a)(5) and (1) of
the Statute.
IBEW, but not General Counsel, has requested that, as part of the
remedy, "any agreement reached . . . be given retroactive effect to
April 18, 1980, the date of the initial determination by the Authority
of the appropriate bargaining unit." (IBEW Brief pp. 20-21). IBEW did
not request that bargaining be reopened until March 30, 1981, and WAPA
did not refuse to bargain as to Supervisory Craftsmen until April 13,
1981; but, in any event I deem any requirement that any agreement
reached be given retroactive effect to be both unnecessary and
inappropriate. As part of the remedy, WAPA will be ordered to
negotiate, upon request, concerning conditions of employment of
Supervisory Craftsmen and retroactivity of any agreement, under the
circumstances of this case, should be resolved through the bargaining
process.
Having found that the appropriate unit determined by the Authority
included prevailing rate supervisory employees, then designated Foreman
I, II and III, and that Supervisory Craftsmen are precisely the same
class of prevailing rate supervisors included in the appropriate unit as
Foreman II and III, and having found that WAPA violated Sections
16(a)(5) and (1) of the Statute by its failure and refusal to bargain as
to Supervisory Craftsmen, I recommend that the Authority adopt the
following:
ORDER
Pursuant to Section 2423.29 of the Regulations 5 C.F.R. Section
2423.29, and Section 18 of the Statute, 5 U.S.C. Section 7118, the
Authority hereby orders that the United States Department of Energy,
Western Area Power Administration, Golden, Colorado, shall:
1. Cease and desist from:
a) Refusing to negotiate with the International Brotherhood of
Electrical Workers, AFL-CIO (hereinafter referred to as the
"Union"), the exclusive representative of its employees, to the
extent consonant with law, regulations and the Statute, concerning
the conditions of employment of Supervisory Craftsmen.
b) Refusing to recognize Supervisory Craftsmen as being within
the unit determined to be appropriate by the Authority in Case No.
3 FLRA No. 12, 3 FLRA 76.
c) In any like or related manner, interferring with,
restraining, or coercing its employees in the rights assured by
the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
a) Upon request, negotiate in good faith with the Union
concerning the conditions of employment of Supervisory Craftsmen.
b) Post at its facilities in Golden, Colorado, and at its
facilities in each District of the Western Area Power
Administration, copies of the attached notice marked "Appendix",
on forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the
Administrator, Western Area Power Administration, and they shall
be posted for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. The Administrator shall take reasonable steps
to insure that such notices are not altered, defaced, or covered
by any other material.
c) Notify the Regional Director of the Federal Labor Relations
Authority for Region VII, whose address is: 1531 Stout Street,
Suite 301, Denver, Colorado, 80202, in writing, within 30 days
from the date of this Order, as to what steps have been taken to
comply therewith.
/s/ WILLIAM B. DEVANEY
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: August 4, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Section 704 of the Civil Service Reform Act, codified at 5 U.S.C.
Section 5343 note (1982), provides as follows:
(a) Those terms and conditions of employment and other
employment benefits with respect to Government prevailing rate
employees to whom section 9(b) of Public Law 92-392 applies which
were the subject of negotiation in accordance with prevailing
rates and practices prior to August 19, 1972, shall be negotiated
on and after the date of enactment of this Act in accordance with
the provisions of section 9(b) of Public Law 92-392 without regard
to any provision of chapter 71 of title 5, United States Code (as
amended by this title), to the extent that any such provision is
inconsistent with this paragraph.
(b) The pay and pay practices relating to employees referred to
in paragraph (1) of this subsection shall be negotiated in
accordance with prevailing rates and pay practices without regard
to any provision of --
(A) chapter 71 of title 5, United States Code (as amended by
this title), to the extent that any such provision is inconsistent
with this paragraph;
(B) subchapter IV of chapter 53 and subchapter V of chapter 55
of title 5, United States Code; or
(C) any rule, regulation, decision, or order relating to rates
of pay or pay practices under subchapter IV of chapter 53 or
subchapter V of chapter 55 of title 5, United States Code.
(2) Quoting 124 Cong. Rec. H8469, Aug. 11, 1978.
(3) 1962 U.S. Code Cong. & Ad. News 4269.
(4) 1969 U.S. Code Cong. & Ad. News 2948.
(5) See footnote 1.
(6) See footnote 1.
(7) The Authority relies on this statutory definition of "prevailing
rate employee" because the CSRA uses the term in the same title of the
U.S. Code without defining it, and we can discern no more appropriate
definition. See Sutherland Statutory Construction Section 27.02 (4th
Ed).
(8) In that case, the Authority's unit determination was based solely
on Executive Order 11491, as amended, consistent with section 902(b) of
the Civil Service Reform Act of 1978 (CSRA), 92 Stat. 1224. Nothing in
the Statute alters the inclusion of Foreman II and III employees in the
unit. To the contrary, the fact that Foreman II and III employees come
within the protection of section 704 of the CSRA (see note 1 above) is
not in dispute in any of these cases. Whether or not these employees
are supervisors within the meaning of the Statute, their entitlement to
certain collective bargaining rights continues without regard to any
inconsistent provision in the Statute.
(9) As the Authority recently stated in its decision and order on
remand in Environmental Protection Agency, 21 FLRA No. 98 (1986), slip
op. at 5, while the Authority need not -- and generally does not --
order parties to give retroactive effect to the provisions of a
collective bargaining agreement, the Authority will exercise its
discretion under section 7118(a)(7)(B) of the Statute to order such a
remedy in appropriate circumstances. One such circumstance is where an
agency has refused to bargain on a specific proposal which was
substantially identical to a proposal previously found by the Authority
to be within the duty to bargain. Veterans Administration Regional
Office (Buffalo, New York), 10 FLRA 167 (1982). We view the situation
in this case as analogous, since the Respondent's unlawful conduct
similarly has deprived the exclusive representative of an opportunity to
bargain in a timely manner over clearly negotiable conditions of
employment affecting some bargaining unit employees. As stated above,
such an order is required here if the affected employees are to be made
whole for the Respondent's unlawful conduct. Moreover, unlike the
circumstances in Environmental Protection Agency, such an order here
would not disrupt the agency's operations because it would merely
require retroactive application of negotiated wage rates for a
relatively few individuals in the Supervisory Craftsman positions.
(10) 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)(5) will be referred to,
simply as "16(a)(5)".
(11) In its initial decision, although the Authority stated, in part,
that ". . . there are no current WAPA employees who were previously in
the bargaining unit . . . represented by Local 611", a footnote stating
that "*Accordingly, IBEW Local 611 will not appear on the ballot as
described in the Direction of Election" was inadvertently omitted and,
accordingly, a corrected decision issued on May 29, 1980.
(12) Strictly speaking, the Authority had excluded, inter alia,
"supervisors as defined in the Order." The definition of "Supervisor" in
Section 2(c) of the Order is somewhat different from the definition of
"supervisor" as defined in Section 3(a)(10) of the Statute; however, as
the general effect of each definition is the same, the differences are
not material for present purposes.
(13) By letter dated September 5, 1980, WAPA had agreed to continue
to honor dues deduction authorizations from Supervisory Craftsmen (Res.
Exh. 18) and, while stated to be a "purely temporary accomodation"
pending "decision on the clarification of unit (CU) petition", Mr.
Boatman, Chief of Labor/Employee Relations Branch, testified that "They
are still being deducted" (Tr. 49).
(14) The absence of "grievances" over extended periods strongly
suggests, as the testimony of Mr. Lockwood shows, Tr. 228, that problems
which others might well have considered "grievances" were resolved
without being considered to have been "grievances".
(14) At this point, Mr. Lenz was specifically referring to a desk
audit of Supervisory Lineman Alvin Klaus (Tr. 89). Whether Mr. Klaus
had been a Foreman II or a Foreman III was not shown.
(16) Article 15, Section 15.5, of the current agreement provides, in
part, as follows:
" . . . employees will be encouraged to act promptly either
directly or through their representatives in bringing to the
attention of their immediate supervisors, through informal
discussion, any act, condition or circumstance which is causing
employee dissatisfaction and to thereby seek supervisory
explanation or action to remove the element of dissatisfaction
before it serves as the basis for a formal grievance. . . ."
Section 15.6 places disposition of formal grievances in
supervisors other than Foreman or Supervisory Craftsmen.
(17) I am aware of the April 21, 1980, "sick-out" incident when about
one-half of the wage board work force assigned to the Phoenix District
Office failed to report for work and WAPA's assertion that some Foremen
had both participated in the sick-out and had improperly approved leave
for absentees which "resulted in five proposed letters of reprimand. In
two cases leave granting authority has been withdrawn for an indefinite
period." (Res. Exh. 22; Tr. 131). Although Mr. Onstad referred to
"supervisory craftsmen" (Tr. 131), as the reclassification occurred
later, it is apparent that his terminology was in error as Respondent
Exhibit 22 confirms.
While Respondent points to this incident and the action of certain
Foremen as showing a conflict in interest, it also confirms the leave
granting authority possessed and exercised by Foremen.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT refuse to recognize Supervisory Craftsmen as being within
the unit determined to be appropriate by the Authority in Case No. 3
FLRA No. 12, 3 FLRA 76.
WE WILL NOT refuse to negotiate in good faith with the International
Brotherhood of Electrical Workers, AFL-CIO, the exclusive
representatives of our employees, to the extent consonant with law and
regulation, concerning the conditions of employment of Supervisory
Craftsmen.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate in good faith with the International
Brotherhood of Electrical Workers, AFL-CIO, concerning the conditions of
employment of Supervisory Craftsmen.
(Agency or Activity)
Dated:
By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region 7, whose
address is: 1531 Stout Street, Suite 301, Denver, Colorado, 80202, and
whose telephone number is: (303) 327-5224.