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60 FLRA No. 117
SOCIAL SECURITY ADMINISTRATION
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO
(Labor Organization/Petitioner)
BN-RP-04-0032
_____
ORDER
DENYING APPLICATION FOR REVIEW
January 18, 2005
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on an application for review filed by the American Federation of Government Employees, AFL-CIO (Union) under § 2422.31 of the Authority's Regulations. The Social Security Administration (Agency) filed an opposition to the Union's application for review.
The Union seeks review of the Regional Director's (RD's) Decision and Order excluding three employees from a bargaining unit represented by the Union. For the reasons set forth below, we deny the Union's application.
II. Background and RD's Decision
In 1979, the Union was certified as the exclusive representative of a nationwide consolidated unit of nonprofessional Agency employees, including certain employees in the regional and field offices of the Office of Quality Assurance (OQA). The Union filed a petition seeking to clarify the unit to include three employees encumbering the position of Social Insurance Specialist (Program Expert) in the Philadelphia Regional Office of the OQA. Program Experts 1 and 2 are assigned to the Assistance and Insurance Programs Quality Branch (AIPQB) and Program Expert 3 is assigned to the Disability Quality Branch (DQB).
Before the RD, the Agency contended that the Program Experts should be excluded from the unit because they are supervisory employees, confidential employees, and management officials under § 7103 of the Federal Service Labor-Management Relations Statute (the Statute). The RD determined that the Program Experts are supervisory and confidential employees, but not management officials. [n1]
With respect to whether the Program Experts are supervisory employees under § 7103(a)(10) of the Statute, the RD found that Program Expert 1 is responsible for conducting various special studies and overseeing a work team of six employees. [n2] He determined that, in conducting these studies, Program Expert 1 "has occasion to assign work based on individual employees' expertise or for developmental opportunity." RD's Decision at 5. The RD found that Program Expert 1, in overseeing the work team, reviews flexiplace assignments, provides the AIPQB Branch Chief with input regarding employee performance, and recommends the employees for awards. See id.
The RD determined that Program Expert 2 is responsible for conducting special studies and has served as a project lead. See id. at 6. The RD found that Program Expert 2 has "assigned cases to employees based on the level of the employees' expertise and in order to provide employees with developmental opportunities." Id. According to the RD, Program Expert 2 has assigned "easier cases to less experienced employees" and has "ensured that each employee had the opportunity to work a certain type of case that he judged to be more challenging." Id. In addition, the RD determined that Program Expert 2 has used his judgment to "shift" work assignments based on workload. Id. In filling in for team leaders, Program Expert 2 has reviewed flexiplace assignments, completed an Agency flexiplace form, provided input on employee performance, and recommended awards. See id. at 6.
The RD found that Program Expert 3 conducts studies and has served as a project lead. According to the RD, in conducting studies, Program Expert 3 has selected other employees to work on the study "based on his knowledge of the employees' expertise, how well the employees wrote, and their analytical abilities." Id. at 7. [ v60 p591 ] The RD further found that Program Expert 3 serves as a permanent team leader for one employee and trains new employees and reviews their work. See id. at 6. Program Expert 3 provides performance input regarding the trainees and "recommends when the trainees are ready to be permanently assigned to a team." Id. at 6.
With respect to whether the Program Experts are confidential employees under § 7103(a)(13) of the Statute, the RD noted the parties' stipulation that the Director of the Philadelphia Regional Office (Director) is "significantly involved in labor-management relations." [n3] Id. at 8. The RD also determined that the Philadelphia Regional Office Branch Chiefs (Branch Chiefs) are "significantly involved in labor-management relations[.]" Id. at 8 n.2. The RD found that the Program Experts regularly attend meetings conducted by these officials where the Program Experts obtain advance knowledge of "sensitive labor relations issues[,]" such as disciplinary problems of bargaining unit employees, hiring and staffing policies, reassignment or relocation of employees, administration of leave, office equipment acquisitions, and whether DQB would continue to exist. Id. at 8, 4.
The RD found that the Program Experts "all perform at least one of the supervisory indicia" set out in § 7103(a)(10). Id. at 10. In this regard, the RD determined that each Program Expert "has exercised independent judgement either in selecting the employees who will participate on [a study or work] team based on the employees' expertise or needed skills, or in determining which cases to assign to employees based on the employees' experience or skill level." Id. The RD also determined that the Program Experts "manage the employees who perform the work." Id. The RD also found that the Program Experts "serve in a confidential capacity" to the Director and the Branch Chiefs "by attending the regular managerial meetings" conducted by the Director and the Branch Chiefs. Id. at 8.
Based on the foregoing, the RD concluded that the Program Experts are supervisory and confidential employees under § 7103(a)(10) and (13), respectively. Therefore, the RD ordered that the Program Experts be excluded from the bargaining unit represented by the Union. See id. at 12.
III. Positions of the Parties
A. Union's Application for Review
The Union argues that the RD failed to apply established law in determining that the Program Experts are supervisory employees. Specifically, the Union argues that the Program Experts do not assign work and that, instead, the Program Experts "distribute work" on an "as needed" and "infrequent basis," which does not constitute "consistent exercise of independent judgment[.]" Application for Review at 1. The Union also asserts that the RD committed clear prejudicial errors concerning substantial factual matters by finding that the Program Experts obtained information regarding labor relations issues and discussed whether OQA would continue to exist during management meetings. See id. at 2. The Union claims that the Program Experts' attendance at management meetings does not establish a confidential relationship between them and the Director or the Branch Chiefs. See id. Finally, the Union claims that the RD committed a prejudicial procedural error because the hearing officer overruled "every single objection" made by the Union. Id. at 3.
B. Agency's Opposition [n4]
The Agency contends that the RD correctly applied established law in determining that the Program Experts are supervisory employees. See Opposition at 2. The Agency contends that the Program experts consistently exercise independent judgment in assigning work. Regarding the RD's determination that the Program Experts are confidential employees, the Agency contends that the Union does not dispute the RD's factual finding that the Program Experts attend meetings where labor relations issues are discussed. See id. at 2-3. The Agency further contends that the RD's determination that the Program Experts are confidential employees is supported by Authority precedent. See id. at 3 (citing Nat'l Aeronautics & Space Admin., Glenn [ v60 p592 ] Research Ctr., Cleveland, Ohio, 57 FLRA 571, 573-74 (2001)).
IV. Analysis and Conclusions
A. The RD did not fail to apply established law regarding supervisory employees.
It is well-settled that an employee will be considered a supervisor if the employee consistently exercises independent judgment with regard to any one of the supervisory indicia set forth in § 7103(a)(10) of the Statute. See, e.g., Nat'l Mediation Bd., 56 FLRA 1, 7-8 (2000) (NMB) (citing Army & Air Force Exch. Serv., Base Exch., Fort Cason, Fort Carson, Colo., 3 FLRA 596, 599 (1980)). However, if an employee's actions in connection with one of the supervisory indicia are of a routine nature, entailing the exercise of very little independent judgment or no consistent exercise of discretion, then the employee will not be considered a supervisor. See, e.g., NMB, 56 FLRA at 8; United States Dep't of the Treasury, Office of Chief Counsel, 32 FLRA 1255, 1259 (1988).
The RD determined that the Program Experts are supervisory employees because they "exercised independent judgment either in selecting the employees who will participate on [a study or a work] team . . . or in determining which cases to assign to employees based on the employees' experience or skill level." RD's Decision at 10. The RD's conclusion is consistent with Authority precedent finding that employees who assign work to team members based on an evaluation of the members' experience, expertise, competence, workload, or to increase the team members' capability and knowledge, consistently exercise independent judgment and are supervisory employees under § 7103(a)(10). See United States Dep't of Energy, W. Area Power Admin., Lakewood, Colo., 60 FLRA 6, 8-9 (2004); United States Dep't of the Army, Army Aviation Sys. Command & Army Troop Support Command, St. Louis, Mo., 36 FLRA 587, 593-96 (1990).
The Union argues that the Program Experts do not consistently exercise independent judgment because they "distribute work" on an "as needed" and "infrequent basis[.]" Application for Review at 1. However, the Union does not assert that the RD's factual determinations regarding the Program Experts work assignment duties are erroneous. Further, the Union does not provide any support for its claim that the Program Experts assign work on an infrequent or random basis. As such, the Union's argument provides no basis for concluding that the RD erred in finding that the Program Experts are supervisory employees.
Based on the foregoing, we find that the RD's determination that the Program Experts are supervisory employees within the meaning of § 7103(a)(10) of the Statute is consistent with Authority precedent. Consequently, we conclude that review of the RD's decision is not warranted on the ground that the RD failed to apply established law regarding supervisory employees. [n5]
B. The RD did not commit a prejudicial procedural error.
The Union claims that the RD committed a prejudicial procedural error. As support, the Union asserts that the hearing officer overruled "every single objection the Union made[.]" Application for Review at 3.
The RD affirmed the hearing officer's rulings, finding the rulings "free from prejudicial error." RD's Decision at 2. Hearing officers are not bound by "[f]ormal rules of evidence" and have the authority to "take any action necessary to . . . conduct, continue, control, and regulate the hearing[.]" 5 C.F.R. §§ 2422.18(b) & 2422.21(b). The Union has not provided any evidence or argument indicating that the hearing officer erred in overruling the Union's objections. As such, we find that the Union has not demonstrated that the RD or the hearing officer committed a prejudicial procedural error. See United States Sec. & Exch. Comm'n, Wash., D.C., 56 FLRA 312, 318 (2000) (hearing officer did not commit clear prejudicial error where officer had discretion to limit witness testimony and the agency failed to establish that the officer prejudiced the agency). Accordingly, we conclude that review of the RD's decision is not warranted on the ground that the RD committed a prejudicial procedural error.
V. Order
The application for review is denied.
Footnote # 1 for 60 FLRA No. 117 - Authority's Decision
As the RD's conclusion that the Program Experts are not management officials is not disputed, we do not further address this issue.
Footnote # 2 for 60 FLRA No. 117 - Authority's Decision
Section 7103(a)(10) defines "supervisor" as "an individual . . . 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[.]"
Footnote # 3 for 60 FLRA No. 117 - Authority's Decision
5 U.S.C. § 7103(a)(13) defines "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[.]"
Footnote # 4 for 60 FLRA No. 117 - Authority's Decision
In addition to its other arguments, the Agency requests that the application be dismissed because the Union failed to comply with § 2422.31(b) of the Authority's regulations, which requires, as relevant here, that an application include "a summary of evidence relating to any issue raised . . . and . . . specific reference to page citations in the transcript if a hearing was held." See Opposition at 1. We find the application sufficient for resolution on the merits and, as a result, we deny the Agency's request. Cf. United States Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Coatesville, Pa., 57 FLRA 663, 665-66 (2002) (exception to administrative law judge decision satisfied § 2423.40(a) where it "adequately set forth relevant facts to support the arguments presented"); AFGE, Local 1698, 57 FLRA 1, 2 (2001) (exception to arbitration award satisfied § 2425.2 where exception stated ground on which award was allegedly deficient).
Footnote # 5 for 60 FLRA No. 117 - Authority's Decision
In view of this conclusion, it is unnecessary to resolve the Union's arguments concerning whether the Program Experts are confidential employees.