[ v56 p1 ]
56 FLRA No. 1
NATIONAL MEDIATION BOARD
(Agency/Petitioner)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
(Union)
WA-RP-80049
_____
DECISION AND ORDER ON
APPLICATION FOR REVIEW
February 11, 2000
_____
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This case is before the Authority on an Application for Review filed by the National Mediation Board (Agency) under section 2422.31(c) of the Authority's Regulations. The American Federation of Government Employees (Union) filed an opposition to the Agency's application.
The petition in this case raises issues as to whether certain employees should be included in, or excluded from, the bargaining unit sought by the Union. The Agency seeks review of the Regional Director's (RD's) decision finding that the employees are properly included in the petitioned-for unit and directing an election. For the reasons set forth below, we grant the Agency's application for review in part, deny it in part, and affirm the RD's Decision and Order directing an election.
II. Background
In April 1998, the Union filed a petition seeking an election to represent all professional and non-professional employees of the Agency. The RD found, as relevant here, that the petitioned-for unit contained employees, including mediators, who administer the Railway Labor Act (RLA) and who are precluded from Union representation pursuant to section 7112(c)(2) of the Federal Service Labor-Management Relations Statute (the Statute). [n2] In particular, the RD found that because the Union is affiliated with the AFL-CIO and because other affiliates of the AFL-CIO represent employees covered by the RLA, the Union is precluded by section 7112(c)(2) from representing employees who administer the RLA. The RD, accordingly, dismissed the Union's petition.
In National Mediation Board, 54 FLRA 1474 (1998) (National Mediation Board), the Authority granted the Union's application for review of the RD's decision on the grounds that: (1) there was an absence of Authority precedent on the issue whether the Union is prohibited by section 7112(c)(2) from representing Agency employees who administer the RLA; and (2) there was a genuine issue over whether the RD committed harmful procedural error. The Authority concluded that the Union is indirectly affiliated with other unions that represent employees covered by the RLA and, therefore, is precluded from representing employees who administer the RLA. The Authority also concluded, however, that the RD committed harmful procedural error because he did not rule on the Union's alternative argument that a unit of non-mediator employees, who do not administer the RLA, would constitute an appropriate bargaining unit. The Authority consequently remanded the case to the RD "to exclude from the petitioned-for unit those employees who fall within the section 7112(c) exclusion" and to make any other necessary findings. Id. at 1482.
On remand, the RD determined that seventeen positions from various Agency components were properly included in the petitioned-for unit and granted the Union's petition for an election. [n3] The Agency now seeks review of the RD's decision granting the election petition. [ v56 p2 ]
III. RD's Decision
Before the RD, the Union argued that the employees at issue should be included in the petitioned-for unit because they provide clerical, administrative and technical support and, as such, do not administer or implement the RLA. By contrast, the Agency alleged that section 7112(c) represents a per se rule that prohibits representation of any of its employees. In the alternative, the Agency argued that the employees at issue are engaged in administering the RLA and are, therefore, precluded from Union representation. The Agency also alleged that as Anita Bonds is a confidential employee, and as Linda Gathings is a supervisory employee, they must be excluded from the unit.
With regard to the status of Anita Bonds, the RD noted that section 7112(b)(2) of the Statute provides that a bargaining unit shall not be determined to be appropriate if it includes a confidential employee. The RD further noted that section 7106(a)(13) of the Statute defines the term "confidential employee" as one "who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations." RD's Decision at 11 (quoting section 7106(a)(13)). Pursuant to this definition, the RD found that Authority case law provides that neither typing, nor mere access to documents constituting labor relations material is sufficient to establish confidential status. The RD also found that in assessing confidential status, the Authority does not consider work that relates to labor relations matters beyond the employee's own agency.
Applying the foregoing to the facts of this case, the RD determined that Bonds is not a confidential employee within the meaning of section 7106(a)(13). In arriving at this determination, the RD found that Bonds is employed as an Administrative Assistant and is responsible for providing support to the Agency's Chief of Staff. The RD found that "[w]hile [Bonds] may perform administrative tasks in the processing of mediation or arbitration cases which involve confidential information pertaining to airline or railroad industries and labor organizations outside [the Agency], her involvement in these tasks does not relate directly to labor relations issues which impact [Agency] employees." Id. The RD, accordingly, concluded that Bonds's administrative involvement in mediation or arbitration cases does not render her a confidential employee.
With regard to Bonds's involvement in labor relations issues that directly affect Agency employees, the RD noted that Bonds provides backup for Mediation Coordinator Joyce Blackwell. The RD further noted that Blackwell handles internal labor relations matters that directly impact Agency employees. On those occasions when Bonds has filled in for Blackwell, the RD found that Bonds had not been involved in disciplinary matters, grievances, or personnel issues involving Agency employees. The RD also found that Bonds had never been advised that at some future date she might become so involved. Even assuming that Bonds were to become involved, the RD found "no evidence suggesting that Bond's role in this regard would amount to more than mere access to confidential documents." Id. at 12-13. As mere access to labor relations materials is not sufficient to establish confidential status, the RD determined that Bonds is not a confidential employee within the meaning of section 7103(a)(13) of the Statute. He, therefore, rejected the Agency's position that she should be excluded from the unit on this basis.
The RD next addressed the status of Linda Gathings. The RD noted that section 7103(a)(10) of the Statute defines a supervisor as "an individual employed by an agency who has authority to hire, direct, assign, promote, recall, suspend, discipline, or remove employees, to adjust their grievances or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgement." Id. at 13 (quoting section 7103(a)(10)). The RD noted that under Authority precedent, an employee will be found to be a supervisor if the employee exercises one or more of the supervisory indicia set forth in section 7103(a)(10). However, the RD further noted that the Authority has found employees who work in "leader" positions --that is, employees who are more senior and experienced in relation to less experienced employees -- are not supervisors within the meaning of section 7103(a)(10). In this connection, the RD explained that "lead" employees are not considered to be supervisors because such employees exercise authority that is merely routine in nature and that does not involve the consistent exercise of independent judgment. On the other hand, the RD explained that employees who consistently exercise independent judgment in the assignment, direction or review of another employee's work will be found to be supervisors.
The RD found that Linda Gathings serves as an Arbitration Assistant in the Office of Arbitration Services and, in this capacity, is responsible for "overseeing" the work of another employee, named Linda Safford. According to the RD, when Gathings first began working with Safford, Gathings had initially reviewed Safford's work. However, the RD determined that this review was routine in nature and based primarily [ v56 p3 ] on Gathing's experience as the more senior employee. The RD similarly found that although Gathings distributes work to Safford, such distributions are routine. In addition, the RD found that although Gathings and Safford inform one another when they are taking leave, Gathings does not approve leave for Safford. The RD also found that Gathings does not complete Safford's performance appraisal. On the one occasion that Gathings signed a performance improvement plan pertaining to another employee, the RD found that Gathings did not author the plan. Instead, the plan was drafted by Gathings's supervisor, who also made the decision to terminate the employee. In view of this evidence, the RD concluded that Gathings is not a supervisor within the meaning of the Statute because she works merely as a more senior employee in relation to Safford. The RD accordingly concluded that Gathings should not be excluded from the unit on this basis.
Finally, the RD addressed the Agency's contentions that the employees at issue are precluded from inclusion in the petitioned-for unit because they are engaged in administering the RLA. In so doing, the RD examined a number of Authority cases in which the union sought to represent employees of an agency that administers a statute relating to labor-management relations. Based on his examination, the RD concluded that "there is an absence of precedent interpreting section 7112(c)[.]" Id. at 16. As such, the RD stated that he would rely on the wording of section 7112(c) in arriving at his decision.
The RD found that although the Authority has never explicitly defined the term "administer," in Federal Mediation and Conciliation Service, Region 7, San Francisco, California, 3 FLRA 138 (1980) (FMCS, San Francisco), the Authority indicated that it generally means to "implement and carry out." Id. at 139. The RD also found that in United States Department of Labor, Office of the Solicitor, Region III, 8 FLRA 286 (1982) (DOL, Solicitor), the Authority suggested that "administering a provision of law is analogous to ensuring the compliance of a provision or the enforcement of that provision[.]" Id. Utilizing the definitions set forth in these cases, the RD then examined the job responsibilities of the disputed employees to determine whether they could be appropriately included in the petitioned-for unit. The RD found that although the responsibilities of these employees may support various aspects of the RLA, the employees "are not directly involved in enforcing" the RLA and they "do [not] carry out or implement [the] labor[-]relations functions which are [at] the heart of the Act." Id. at 19. Accordingly, the RD rejected the Agency's position that all of its employees are precluded from Union representation.
The RD also rejected the Agency's contention that section 7112(c) provides a blanket exclusion for all its employees. According to the RD, "this blanket exclusion is not appropriate for the non-professional employees who are not directly enforcing, implementing or carrying out the [RLA]. Those employees who merely provide clerical, administrative, or technical support to the [Agency] cannot be excluded under a per se exclusion." Id. As such, the RD found that the employees in the petitioned-for unit could be represented by a labor organization, including a labor organizations that is indirectly affiliated with the AFL-CIO. Based on his additional finding that the petitioned-for unit is an appropriate unit under section 7112(a)(1) of the Statute, the RD granted the Union's petition for an election.
IV. Positions of the Parties
A. Agency
The Agency alleges that review of the RD's decision is warranted on several grounds. First, the Agency contends that review is warranted under section 2422.31(c)(1) of the Authority's Regulations because there is an absence of precedent in interpreting section 7112(c). In support of this assertion, the Agency quotes the RD's statement that he had reached the same conclusion that the Authority had reached in National Mediation Board, 54 FLRA 1474, "which is that there is an absence of precedent in interpreting section 7112(c)" of the Statute. Application for Review at 3 (quoting RD's Decision at 16). In the Agency's view, review should be granted on this ground alone.
The Agency next contends that review is warranted under section 2422.31(c)(3)(i) and (ii) of the Authority's Regulations because the RD "misstated the legal issue . . . and failed to apply the established law of [section] 7112(c)." Id. at 4. [n4] The Agency argues, in this regard, that the RD erred when he concluded that "the issue becomes whether the seventeen non-professional employees in question `administer' any provisions of the Railway Labor Act." Id. (quoting RD's Decision at 16). According to the Agency, the applicable language of section 7112(c) applies to "any" employee "engaged in administering any provision of law relating to labor-management relations." Id. (quoting the language of [ v56 p4 ] section 7112(c)). The Agency maintains that "[b]y misquoting this statutory language the [RD] failed to apply established law and created an artificially high standard inconsistent with the legislative history of [section] 7112(c)." Id.
In addition, the Agency submits that in analyzing the responsibilities of the employees at issue, the RD applied varying legal standards. The Agency alleges that according to the RD, the term "administer" means that employees "enforce, implement, or carry out . . . provisions of the Railway Labor Act[.]" Id. Nevertheless, the Agency contends that the RD "changed this definition with each functional organizational component[.]" Id. at 5. For example, the Agency asserts that at times the RD's standard for administering the RLA was whether the disputed employees had contact with parties. At other times, the Agency asserts that the definition was whether the employees implemented labor-relations functions "at the `heart' of the RLA." Id. In the Agency's view, the statutory phrase "engaged in administering any provision of law relating to labor-management relations" must be construed broadly, particularly in light of the legislative history of section 7112(c). The Agency contends that in light of the responsibilities of the disputed employees, the Authority must conclude that they are engaged in administering the RLA.
The Agency also relies on the legislative history of section 7112(c) to support its contention that the language of that provision establishes a per se rule prohibiting the representation of any Agency employee by any labor organization that is subject to the RLA or that is affiliated, directly or indirectly, with an organization that is subject to the RLA. Although this argument was rejected by the RD, the Agency cites an example concerning employees of the National Labor Relations Board (NLRB) and asserts that the "complete" legislative history of section 7112(c) "establishes a per se prohibition against representation of all [Agency] employees . . . ." Id. at 6.
Finally, the Agency contends that review of the RD's decision is warranted under section 2422.31(c)(3)(iii) because the RD committed a clear and prejudicial error concerning substantial factual matters relating to the responsibilities of two Agency employees. The Agency asserts that the RD erred in concluding that Anita Bonds is not a confidential employee within the meaning of section 7103(a)(13) and that Linda Gathings is not a supervisor within the meaning of section 7103(a)(10).
As concerns the confidential status of Bonds, the Agency submits that the record shows that Joyce Blackwell acts in a confidential capacity to the Agency's Chief of Staff and that Bonds performs Blackwell's duties when Blackwell is on leave. According to the Agency, Blackwell's duties include serving as the Chief of Staff's confidential assistant on labor-management matters, including employee grievance and performance issues. Consequently, the Agency maintains that Bonds, like Blackwell, acts in a confidential capacity with regard to labor-management relations.
As concerns the supervisory status of Gathings, the Agency contends that the record shows that Gathings supervises Linda Safford. In support of this contention, the Agency cites the testimony of Gathing's supervisor who, according to the Agency, stated that Gathings directs the workload of Safford; checks with Gathings before taking leave; evaluates Safford; does Safford's performance appraisals; could propose disciplinary action against Safford; and could adjust or recommend the adjustment of a grievance by Safford. In view of such evidence, the Agency asserts that the record establishes that Gathings is a supervisor.
B. Union
In its opposition, the Union contends that the Agency's application should be rejected in its entirety. According to the Union, the arguments advanced by the Agency are simply "tendentious" attempts to reargue its case. Opposition at 3. The Union urges the Authority to affirm the merits of the RD's decision as well as the reasonableness of his findings and "[t]o proceed to [an] election . . . without unduly delaying the opportunity for [Agency] employees to exercise their right under the [S]tatute to form a union if they so choose." Id. at 1.
V. Analysis and Conclusions
For the reasons set forth below, we grant review of the Agency's application on the ground that there is an absence of Authority precedent addressing an issue presented in this case. 5 C.F.R. § 2422.31(c)(3)(i). On review, we conclude that the RD correctly found that the seventeen, non-mediator employees disputed by the parties do not "administer" the RLA within the meaning of section 7112(c). Therefore, they are properly included in the petitioned-for unit.
We also conclude that the RD did not fail to apply established law or commit a prejudicial procedural error under section 2422.31(c)(3)(i) and (ii) of the Authority's Regulations, respectively, or commit a clear and prejudicial factual error under section 2422.31(c)(3)(iii) of [ v56 p5 ] the Authority's Regulations. We, therefore, deny the application for review with regard to these issues.
A. The RD's Decision Raises an Issue on Which There is an Absence of Precedent
The application for review in this case raises an issue concerning the proper interpretation of section 7112(c) of the Statute. More specifically, the application and the RD's decision raise questions concerning the meaning of the term "administer" as it is used in section 7112(c). Because of an absence of precedent regarding this issue, we grant review of the RD's decision under section 2422.31(c)(1).
Although the Authority has never interpreted the term "administer" within the meaning of section 7112(c), the Authority has construed this term within the meaning of section 7112(b)(4). That provision precludes employees engaged in administering the provisions of the Statute from inclusion in an appropriate unit. [n5] Thus, in FMCS, San Francisco, 3 FLRA at 139, the Authority concluded that FMCS mediators "implement and carry out" the mission of the agency and, accordingly, are engaged in "administering" the provisions of the Statute pursuant to section 7112(b)(4). Thereafter, in DOL, Solicitor, 8 FLRA 286, the Authority applied FMCS, San Francisco. In that case, the Authority concluded that employees who enforce sections 7120(a)-(e) of the Statute are engaged in administering its provisions pursuant to section 7112(b)(4).
The Authority applied both of the foregoing cases in U.S. Department of Housing and Urban Development, Washington, D.C., 35 FLRA 1249 (1990), in determining whether section 7112(b)(4) precluded a particular employee from being included in a unit. In so doing, the Authority examined the employee's duties and responsibilities to determine whether the record supported the agency's allegations that the employee was engaged in administering the Statute, within the meaning of section 7112(b)(4).
In the instant case, the RD construed the term "administer", within the meaning of section 7112(c) as it has previously been construed by the Authority under section 7112(b)(4). As each of these provisions was enacted for the same purpose -- to protect against a conflict of interest between administering employees and the employees covered by the labor relations statute being administered -- there appears to be no practical difference in the manner in which the word "administer", as used in each of these provisions, is construed. Moreover, it is "a normal rule of statutory construction" that "identical words used in different parts of the same act are intended to have the same meaning." Phoenix Area Indian Health Service, Sacaton Service Unit, HU HU Kam Hospital, Sacaton, Arizona, 53 FLRA 1200, 1210 (1998) (citing Commissioner of Internal Revenue v. Keystone Consolidated Industries, Inc., 508 U.S. 152, 159 (1993)).
Nevertheless, the Authority's previous construction of the term "administer" was accomplished in connection with assessing the duties and responsibilities of professional employees. In the petition currently before us, the Union seeks to represent a unit of non-professional employees who encumber various Agency positions. Consequently, we are presented with the opportunity to further define the meaning of this term.
According to Webster's II New Riverside University Dictionary (1984), the word "administer" means to "to have charge of: MANAGE[.]" Roget's II Thesaurus (1988), includes this definition and also states that the word "administer" means to "oversee the provision or execution of[.]" When these definitions are added to the Authority's previous construction of this term, a more comprehensive and meaningful framework is provided. Pursuant to this more expansive definition, section 7112(b)(4) and section 7112(c) would be construed as permitting employees who are not responsible for managing, implementing, carrying-out, or otherwise executing a provision of law relating to labor-management relations to be included in an appropriate unit. [n6] In our view, this more comprehensive definition will assist the Authority in assessing future representation cases involving this issue. We will, therefore, adopt and apply it to this and future cases.
Applying the foregoing definition of the term "administer" to the duties and responsibilities of the seventeen, non-mediator employees at issue in this case, we find that the RD did not err in including them in the petitioned-for unit. In particular, we find, in agreement with [ v56 p5 ] the RD, that the record fails to support the Agency's claim that these employees "administer" the RLA within the meaning of section 7112(c). Accordingly, we conclude that the RD did not err in granting the Union's petition for an election.
B. The RD Did Not Fail to Apply Established Law or Commit a Prejudicial Procedural Error
The Agency also alleges that review of the RD's decision is warranted because the RD "misstated the legal issue . . . and failed to apply the established law of [section] 7112(c)." Application at 4. In support of this allegation, the Agency submits that the RD erred when he stated the issue as "whether the seventeen non-professional employees in question `administer' any provisions of the Railway Labor Act." Id. According to the Agency, the language of section 7112(c) applies to any employee "engaged in administering any provision of law relating to labor-management relations." Id. The Agency further contends that the "complete" legislative history of section 7112(c) "establishes a per se prohibition against representation of all [Agency] employees . . . ." Id. at 6. We find no merit in the Agency's contentions.
At the outset, we note that in enacting the Statute, Congress expressly identified those agencies that were to be provided a blanket exclusion from its coverage. These agencies, which are listed in section 7103(a)(3), include the Federal Labor Relations Authority, as well as the Federal Service Impasses Panel. The Statute does not exclude the National Mediation Board. Moreover, section 7112(c) is an exclusion that is set forth in a provision concerning the determination of an appropriate unit. Therefore, the very existence of section 7112(c) implies that some unit can exist at those agencies that administer a labor-management relations statute.
In addition, by its plain wording, section 7112(c) of the Statute prohibits any employee who (1) "administers a labor relations statute" from being represented by a (2) "labor organization which represents other individuals" under the statute, or (3) a "direct or indirect" affiliate of such an organization." This language does not, by its terms, provide for a blanket or per se exclusion of every individual employed by an agency that administers a statute relating to labor-management relations. Rather, the language prohibits union representation only if the employee is engaged in administering a law relating to labor-management relations. The Supreme Court has recognized, in this regard, that "the statute . . . is the authoritative expression of the law" and although Committee Reports are authoritative legislative history, they cannot trump a statute's plain meaning. City of Chicago v. Environmental Defense Fund, 114 S. Ct. 1588, 1593 (1994).
With regard to the Agency's claim that the legislative history of section 7112(c) provides support for a blanket or per se exclusion of all employees who administer a labor-management relations law, we note that this interpretation of the legislative history is plausible only without reference to the history's complete text. A review of the complete text of the legislative history, however, fails to disclose any intent by Congress to establish such an exclusion. See 124 Cong. Rec. H9634 (1978), reprinted in Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, 96th Cong., 1st Sess. Legislative History of the Federal Labor Relations Statute, Title VII of the Civil Service Reform Act of 1978 at 925. Instead, it shows that the example of an NLRB employee, cited in support of a blanket exclusion, has been taken out of context. [n7] Contrary to the Agency, when the legislative history is read in its entirety, the history clearly shows that it was the intent of Congress that section 7112(c) apply to "any employee who is engaged in administering any provision of law relating to labor-management relations[.]" Id. (emphasis added). Thus, the legislative history does not support the Agency's view that all employees of the NLRB are prohibited from representation under section 7112(c). Rather, the history indicates that any employee of the NLRB who is engaged in administering the National Labor Relations Act is prohibited from union representation under this provision. As such, we find that the Agency's contentions regarding a blanket or per se exclusion for Agency employees must be rejected.
In addition, the Agency submits that in analyzing the responsibilities of the employees at issue, the RD applied varying legal standards. According to the Agency, the RD stated that the term "administer" means that employees "enforce, implement, or carry out . . . provisions of the Railway Labor Act[.]" Application at 4. Nevertheless, the Agency contends that the RD "changed this definition with each functional organizational component[.]" Id. at 5. There is no merit, however, to the Agency's contention.
As the Agency correctly asserts, the RD concluded that as used in section 7112(c), the word "administer" [ v56 p7 ] should be interpreted to mean to "enforce, implement, or carry out" a provision of the RLA. RD's Decision at 16. Moreover, a review of the RD's decision shows that he consistently applied this definition to each disputed employee. In so doing, the RD specifically examined the duties and responsibilities of each employee in relation to the mission of the pertinent organizational component. We note that the examples the Agency cites as constituting varying legal standards are simply descriptive phrases taken from the RD's assessment of whether a particular employee's job responsibilities require that employee to enforce, implement or carry out a provision of the RLA. Contrary to the Agency, these descriptions do not constitute various legal standards on which the RD relied.
Based on the foregoing, we find that the Agency has not established grounds warranting review of the RD's decision under section 2422.31(c)3(i) and (ii) of the Authority's Regulations. We, therefore, deny this portion of the application.
C. The RD Did Not Commit a Clear and Prejudicial Error Concerning Substantial Factual Matters Relating To the Responsibilities of Two Agency Employees
As a final ground, the Agency contends that the RD erred in concluding that Anita Bonds is not a confidential employee within the meaning of section 7103(a)(13) and that Linda Gathings is not a supervisor within the meaning of section 7103(a)(10).
Section 7103(a)(13) of the Statute defines a "confidential employee" as an employee "who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations." An employee is "confidential" if: (1) there is evidence of a confidential working relationship between an employee and the employee's supervisor, and (2) the supervisor is significantly involved in labor-management relations. See Headquarters, 1947th Administrative Support Group, U.S. Air Force, Washington, D.C., 14 FLRA 220, 225 (1984). An employee is not "confidential" in the absence of either of these requirements. See Tick Eradication Program, Veterinary Services, Animal and Plant Health Inspection Service, United States Department of Agriculture, 15 FLRA 250, 252 (1984).
In addition, bargaining unit eligibility determinations are based on testimony as to an employee's actual duties at the time of the hearing rather than duties which may exist in the future. Veterans Administration Medical Center, Prescott, Arizona, 29 FLRA 1313, 1315 (1987). Bargaining unit eligibility determinations are not based on testimony as to what duties had been or would be performed by an employee occupying a certain position, because such evidence might not reflect the employee's actual duties. Id. See also U.S. Army Engineer Topographic Laboratories, Fort Belvoir, Virginia, 10 FLRA 125, 127 n.3 (1982) .
As discussed in section II. above, Bonds serves as an Administrative Assistant to, and is directly supervised by, the Agency's Chief of Staff. There is no dispute that the Chief of Staff formulates or effectuates management policies in the field of labor-management relations. There is also no dispute that in her position as an Administrative Assistant, Bonds does not act in a confidential capacity to her immediate supervisor. Instead, the Agency's assertion that Bonds should be excluded as a confidential employee is based solely on Bond's relationship with Joyce Blackwell. According to the Agency, since Blackwell acts in a confidential capacity to the Agency's Chief of Staff and, since Bonds performs Blackwell's duties when Blackwell is on leave, "Bonds, like Blackwell, acts in a confidential capacity to [the Chief of Staff] in regard to labor-management relations," including employee grievance and performance issues. Application at 7.
The RD found, based on the testimony of Bonds and the Agency's Chief of Staff that on those occasions that Bonds has filled in for Blackwell, Bonds had not been involved in activities considered to be of a confidential nature. The RD further found that Bonds had never been advised that she might become involved in such matters at some future date. Our review of the record establishes that the RD's findings and conclusions are wholly supported by the evidence. We, therefore, conclude that the Agency has failed to establish that review should be granted concerning the confidential status of this employee.
As concerns the supervisory status of Linda Gathings, section 7103(a)(10) of the Statute defines a "supervisor" as an individual employed by an agency who has authority "to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment[.]" It is well-settled that an employee will be found to be a supervisor if the employee consistently exercises independent judgment with regard to the supervisory indicia set forth in section 7103(a)(10) of the Statute. See, e.g., Army and Air Force Exchange Service, Base Exchange, Fort Carson, Fort Carson, [ v56 p8 ] Colorado, 3 FLRA 596, 599 (1980). It is also well-settled that an employee need exercise only one of the responsibilities set forth in section 7103(a)(10) in conjunction with independent judgment in order to be found a supervisor. U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Allen Park, Michigan, 35 FLRA 1206 (1990).
In assessing whether an employee is a supervisor, the Authority has distinguished employees who encumber "leader" positions in relation to other employees with whom they work. The Authority has determined in this regard that employees will be found to be "leaders" rather than supervisors within the meaning of section 7103(a)(10) of the Statute if their responsibilities are routine in nature and do not consistently involve the exercise of independent judgement. See, e.g., U.S. Department of the Army, Army Aviation Systems Command and Army Troop Support Command, St. Louis , 36 FLRA 587 (1990).
The record in this case fully supports the RD's conclusion that Gathings is not a supervisor within the meaning of section 7103(a)(10) of the Statute. It is true that at the hearing, Gathings testified that she supervises Linda Safford, as the Agency contends. Tr. at 314. However, Gathings further testified that she does not have the authority to write Safford's performance appraisal and had never written such an appraisal (Tr. at 314; 324); that she does not have the authority to approve Safford's requests for leave (Tr. at 323); and that in reviewing Safford's work, she "just ha[s] to make sure that everything is accurate, when it goes out[.]" Tr. at 325. Gathings also testified that although she had once signed a Performance Improvement Plan, she had not drafted the plan, did not supervise the employee to whom the plan applied, and had only signed the plan because she had been told to do so. Tr. at 318-319. Based on this and other similar testimony, it is clear that Gathings's responsibilities with regard to Safford are merely routine in nature and do not involve the exercise independent judgment. We, therefore, conclude that the Agency has failed to establish that review should be granted regarding the supervisory status of this employee.
In these circumstances, we find that the RD's decision does not warrant review under section 2422.31(c)(3)(iii) of the Authority's Regulations. We, therefore, deny this portion of the Agency's application.
VI. Order
For the reasons stated above, we affirm the RD's Decision and Order granting the Union's petition and directing that an election be conducted in the bargaining unit described therein.
Concurring opinion of Member Segal:
I write separately to indicate that I do not believe it is necessary for the Authority to provide "a more comprehensive definition" for the statutory term "administer," simply because our prior construction of this term was developed in cases concerning professional employees and this case concerns a proposed bargaining unit of non-professional employees. Decision at 13. Nothing in the Statute or this case indicates that the requirements of section 7112(c) and section 7112(b)(4) -- that employees who administer particular statutes be excluded from bargaining units -- should not be applied identically to professional and non-professional employees. As the Regional Director properly applied the existing standard, and no reason has been provided to refine the term, I would not do so. To the extent that the majority opinion implies that we have, in some way, modified the Authority's standard for applying this term, as far as I can tell, we have not.
Footnote # 1 for 56 FLRA No. 1
Member Segal's concurring opinion is set forth at the end of this decision.
Footnote # 2 for 56 FLRA No. 1
(c) Any employee who is engaged in administering any provision of law relating to labor-management relations may not be represented by a labor organization --
(1) which represents other individuals to whom such provision applies; or
(2) which is affiliated directly or indirectly with an organization which represents other individuals to whom such provision applies.
Footnote # 3 for 56 FLRA No. 1
Prior to the hearing, the parties identified seventeen non-mediator employees whom the Union seeks to represent. Based on the evidence presented at the hearing, the RD determined that these employees were properly included in the petitioned-for unit. The RD, therefore, ordered an election in the following unit:
Included: All non-professional employees of the National Mediation Board, nationwide.
Excluded: All professional employees, management officials, supervisors, and employees described in 5 U.S.C. § 7112(b)(2), (3), (4), (6), and (7).
RD's Decision at 20.
Footnote # 4 for 56 FLRA No. 1
Although the application for review alleges that review is warranted under section 2422.31(c)(3)(ii) of the Authority's Regulations, the Agency has provided no argument in support of this allegation.
Footnote # 5 for 56 FLRA No. 1
Section 7112(b)(4) provides that:
(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes --
(4) an employee engaged in administering the provisions of this chapter.
Footnote # 6 for 56 FLRA No. 1
In further defining the meaning of the term "administer", it is not our intent to create a blanket exclusion for non-professional employees. Indeed, such employees would be prohibited from inclusion in a petitioned-for unit if they are found to manage, implement, carry-out or otherwise oversee the execution of a provision of law relating to labor-management relations.
Footnote # 7 for 56 FLRA No. 1
The Agency specifically relies on a sentence in the legislative history that states, "[f]or example, an employee of the National Labor Relations Board could not under this provision, be represented by a labor organization which is subject to the National Labor Relations Act, or which is affiliated with an organization which is subject to the National Labor Relations Act." Application at 5-6.