U.S. Department of Justice, Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania (Activity) and American Federation of Government Employees, Council of Prison Locals, AFL-CIO (Labor Organization/Petitioner)
[ v07 p126 ]
07:0126(19)CU
The decision of the Authority follows:
7 FLRA No. 19
U.S. DEPARTMENT OF JUSTICE
BUREAU OF PRISONS
U.S. PENITENTIARY, LEWISBURG,
PENNSYLVANIA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON
LOCALS, AFL-CIO
Labor Organization/Petitioner
Case No. 2-CU-6
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING
OFFICER OF THE AUTHORITY. THE AUTHORITY HAS REVIEWED THE HEARING
OFFICERS'S RULINGS MADE AT THE HEARING AND FINDS THAT THEY ARE FREE FROM
PREJUDICIAL ERROR. THE RULINGS ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE AUTHORITY FINDS:
THE ACTIVITY INCLUDES A FEDERAL PENITENTIARY AND A BRANCH OF FEDERAL
PRISON INDUSTRIES, BOTH UNDER THE OVERALL SUPERVISION OF THE WARDEN.
THE FEDERAL PRISON INDUSTRIES OPERATES A METAL FACTORY AND A CLOTHING
FACTORY IN LEWISBURG IN WHICH INMATES WORK ON A MERIT BASIS UNDER THE
DIRECTION OF CIVILIAN EMPLOYEES OF THE ACTIVITY IN THE MANUFACTURE OF
CERTAIN GOODS. THE PENITENTIARY ITSELF ALSO UTILIZES INMATES ON A MERIT
BASIS TO PROVIDE MUCH OF THE UPKEEP, MAINTENANCE AND PAPERWORK NEEDED TO
KEEP IT OPERATIONAL. THE INCUMBENTS IN THE POSITIONS AT ISSUE ALL
DIRECT THE WORK OF INMATE WORKERS AS WELL AS HAVING CERTAIN
RESPONSIBILITIES WITH RESPECT TO CIVILIAN EMPLOYEES.
THE PETITIONER SEEKS TO CLARIFY ITS EXCLUSIVE BARGAINING UNIT /1/ TO
INCLUDE THE INCUMBENTS IN THE FOLLOWING POSITIONS OF THE ACTIVITY:
WELDING MACHINE OPERATOR FOREMAN, PAINTER FOREMAN, GENERAL FACILITIES
EQUIPMENT REPAIRS FOREMAN, SHEET METAL FORMING MACHINE OPERATOR FOREMAN,
WAREHOUSEMAN FOREMAN, SUPERVISORY TRUST FUND CLERK, AUTOMOTIVE MECHANIC
FOREMAN, PLUMBER FOREMAN, MACHINIST FOREMAN, ASSISTANT FOOD
ADMINISTRATOR, RECORDS CONTROL SUPERVISOR AND ELECTRICIAN FOREMAN. THE
PETITIONER CONTENDS THAT THE EMPLOYEES IN THESE POSITIONS ARE NOT
SUPERVISORS WITHIN THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE.
/2/ THE ACTIVITY TAKES THE POSITION THAT THE EMPLOYEES IN QUESTION ARE
SUPERVISORS WITHIN THE MEANING OF SECTION 7103(A)(10) BASED BOTH ON
THEIR DUTIES IN DIRECTING THE WORK OF INMATES OF THE PENITENTIARY, AND
ON THEIR DUTIES IN DIRECTING THE WORK OF CIVILIAN EMPLOYEES WHO ARE PART
OF THE BARGAINING UNIT.
BEFORE EXAMINING THE DUTIES OF THE EMPLOYEES AT ISSUE TO DETERMINE
WHETHER THEY EXERCISE INDICIA OF SUPERVISORY AUTHORITY AT SET OUT IN
SECTION 7103(A)(10), IT MUST BE NOTED THAT A FINDING OF SUPERVISORY
STATUS FOR LABOR-MANAGEMENT RELATIONS PURPOSES /3/ DEPENDS UPON WHETHER
SUCH SUPERVISORY AUTHORITY IS EXERCISED OVER "EMPLOYEES" AS DEFINED IN
THE STATUTE. /4/ THE ACTIVITY IN ITS BRIEF, P. 26, DOES NOT CONTEND
THAT THE INMATE WORKERS DIRECTED BY THE INCUMBENTS IN QUESTION ARE
"EMPLOYEES" AS DEFINED IN SECTION 7103(A)(2) OF THE STATUTE. /5/
THEREFORE, ANY AUTHORITY EXERCISED OVER INMATES WITH REGARD TO THEIR
WORK SHALL NOT BE CONSIDERED FOR PURPOSES OF DETERMINING THE SUPERVISORY
STATUS OF THE EMPLOYEES IN QUESTION.
ALTERNATIVELY, THE ACTIVITY TAKES THE POSITION THAT THE EMPLOYEES IN
THE POSITIONS IN QUESTION ARE SUPERVISORS BECAUSE THEY EXERCISE
AUTHORITY OVER ONE OR MORE CIVILIAN EMPLOYEES OF THE ACTIVITY. THE
EVIDENCE IN THIS REGARD, AND THE AUTHORITY'S CONCLUSIONS, FOLLOW.
WELDING MACHINE OPERATOR FOREMAN, WS-11; PAINTER FOREMAN, WS-10;
GENERAL FACILITIES EQUIPMENT REPAIRS FOREMAN, WS-11; SHEET METAL
FORMING MACHINE OPERATOR FOREMAN, WS-9; AUTOMOTIVE MECHANIC FOREMAN,
WS-10; PLUMBER FOREMAN, WS-10; MACHINIST FOREMAN, WS-11; AND
ELECTRICIAN FOREMAN, WS-11.
BASED ON THE SIMILAR NATURE OF THEIR DUTIES AND RESPONSIBILITIES,
THESE EIGHT POSITIONS ARE CONSIDERED TOGETHER. THE FIRST FOUR POSITIONS
ARE UNDER THE DIRECT SUPERVISORY RESPONSIBILITY OF THE METAL FACTORY
GENERAL FOREMAN. THE INCUMBENTS ARE RESPONSIBLE FOR THE DIRECTION OF
INMATE WORKERS EMPLOYED BY FEDERAL PRISON INDUSTRIES IN THE PRODUCTION
OF METAL CHAIRS. EACH IS ASSISTED IN THE DIRECTION OF THIS WORK BY ONE
OR MORE LOWER GRADED FOREMEN. THREE OF THE FOUR ARE ASSISTED BY ONLY
ONE LOWER GRADED FOREMAN. /6/ THE GENERAL FACILITIES EQUIPMENT REPAIRS
FOREMAN IS ASSISTED BY FOUR SUCH FOREMEN FROM THE VARIOUS MECHANICAL
SPECIALTIES; THE INCUMBENT AND THE FOUR LOWER GRADED FOREMEN TOGETHER
DIRECT INMATE WORKERS IN THE MAINTENANCE AND REPAIR OF THE PLANT AND
EQUIPMENT OF THE METAL FACTORY.
THE LATTER FOUR OF THE EIGHT POSITIONS NOTED ABOVE ARE SUPERVISED
DIRECTLY BY THE MAINTENANCE GENERAL FOREMAN OF THE PENITENTIARY. LIKE
THE OTHER FOUR DISCUSSED ABOVE, THE INCUMBENTS ARE RESPONSIBLE FOR
DIRECTING INMATE WORKERS, EXCEPT THAT THEIR RESPONSIBILITIES ARE RELATED
TO THE PENITENTIARY ITSELF RATHER THAN THE FEDERAL PRISON INDUSTRIES.
EACH OF THE FOUR INCUMBENTS IS ASSISTED BY ONE LOWER GRADED FOREMAN IN
DIRECTING THE INMATE WORKERS. THESE LOWER GRADED FOREMEN ARE CLASSIFIED
BY THE ACTIVITY AS WS FOREMEN. (SEE NOTE 6, SUPRA.)
ALL OF THE INCUMBENTS IN QUESTIONS, AS WELL AS THE LOWER GRADED
FOREMEN WHO ASSIST THEM, ARE SKILLED CRAFTSMEN WHO SPEND THE MAJORITY OF
THEIR WORKING HOURS DIRECTING INMATE WORKERS IN THEIR CRAFT SPECIALTY.
THE RECORD REFLECTS THAT THE FOREMEN IN QUESTION HEREIN HAVE CERTAIN
RESPONSIBILITY FOR THE ASSIGNMENT AND DIRECTION OF THE LOWER GRADED
FOREMEN. HOWEVER, SUCH RESPONSIBILITY IS GENERALLY LIMITED TO A
DETERMINATION OF HOW TO SHARE THE DIRECTION OF THE INMATES IN PERFORMING
THE WORK ASSIGNED BY THE GENERAL FOREMAN OR HIS SUPERIOR. CUSTOM
DICTATES MUCH OF THIS DETERMINATION. FOR EXAMPLE, THE PLUMBER FOREMAN
GENERALLY TAKES THE WORK INSIDE THE PENITENTIARY BASED ON CUSTOM WHILE
THE LOWER GRADED FOREMAN TAKES THE WORK OUTSIDE THE PENITENTIARY WALLS.
THERE IS NO EVIDENCE THAT ANY OF THE FOREMEN IN QUESTION HAS THE
AUTHORITY TO PROMOTE, TRANSFER, FURLOUGH, LAYOFF, RECALL, SUSPEND,
DISCIPLINE, OR REMOVE THE LOWER GRADED FOREMEN OR TO EFFECTIVELY
RECOMMEND SUCH ACTION. NONE HAS ADJUSTED GRIEVANCES, AND, IN FACT, THE
METAL FACTORY GENERAL FOREMAN CONSIDERS HIMSELF TO BE THE FIRST STEP IN
THE NEGOTIATED GRIEVANCE PROCEDURE FOR THE LOWER GRADED FOREMEN. /7/
WITH RESPECT TO HIRING, THE RECORD INDICATES THAT TWO OF THE EIGHT
FOREMEN IN QUESTION EACH SAT IN ON ONE INTERVIEW OF APPLICANTS WHO WERE
EVENTUALLY HIRED. HOWEVER, IN EACH CASE THE INTERVIEW WAS CONDUCTED BY
OTHERS, AND, ALTHOUGH EACH FOREMAN WAS ASKED FOR HIS OPINION, NEITHER
WAS INVOLVED IN THE ACTUAL SELECTION, OR IN INTERVIEWING ALL OF THE
CANDIDATES. SIMILARLY, AN AWARD WAS SUGGESTED BY ONE OF THE FOREMEN
WITH RESPECT TO A LOWER GRADED FOREMAN THAT WAS EVENTUALLY GRANTED, BUT
THE RECORD DOES NOT ESTABLISH THE CIRCUMSTANCES NOR GIVE OTHER EXAMPLES.
HOWEVER, ALL OF THE FOREMEN IN QUESTION ARE RESPONSIBLE FOR EVALUATING
THE LOWER GRADED FOREMEN WHO ASSIST THEM.
THE EMPLOYEES IN THE FOREMEN POSITIONS IN QUESTION ARE NOT
RESPONSIBLE FOR GRANTING OR SCHEDULING LEAVE, NOR DO THEY HAVE AUTHORITY
TO DO SO. THAT AUTHORITY IN ALL CASES RESTS WITH THE GENERAL FOREMAN
IMMEDIATELY ABOVE THEM. NEITHER DO THEY HAVE THE AUTHORITY TO GRANT
EMERGENCY LEAVE; RATHER THE LOWER GRADED FOREMEN CALL THE GENERAL
FOREMAN OR THE ADMINISTRATIVE OFFICE TO REPORT EMERGENCY LEAVE.
THE AUTHORITY CONCLUDES THAT THE EIGHT FOREMEN IN QUESTION ARE NOT
SUPERVISORS AS DEFINED BY SECTION 7103(A)(10) OF THE STATUTE. IN THIS
REGARD, THE RECORD DOES NOT SHOW THAT THE FOREMEN IN QUESTION HAVE
AUTHORITY TO HIRE, PROMOTE, DISCIPLINE, OR ADJUST THE GRIEVANCES OF THE
LOWER GRADED FOREMEN OR TO EFFECTIVELY RECOMMEND SUCH ACTIONS.
MOREOVER, THE RECORD CLEARLY ESTABLISHES THAT THE FOREMEN IN QUESTION
ACT AS WORK LEADERS /8/ TO THE LOWER GRADED FOREMEN, AND THAT THE
AUTHORITY EXERCISED OVER SUCH EMPLOYEES IS ROUTINE IN NATURE AND
CONTROLLED BY CUSTOM AND DIRECTIVES FROM HIGHER AUTHORITY. THUS, THE
RECORD DOES NOT INDICATE THAT THE FOREMEN IN QUESTION HAVE CONSISTENTLY
EXERCISED INDEPENDENT JUDGMENT IN THE PERFORMANCE OF THEIR FUNCTIONS:
/9/ RATHER IT APPEARS THEY SPEND THE MAJORITY OF THEIR WORK DAY
PERFORMING THE SAME OR SIMILAR WORK AS THE LOWER GRADED FOREMEN.
ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE DISPUTED POSITIONS
LISTED ABOVE BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
WAREHOUSEMAN FOREMAN, WS-6.
LIKE SEVERAL OF THE ABOVE-NOTED FOREMAN POSITIONS, THIS POSITION IS
ORGANIZATIONALLY PART OF THE FEDERAL PRISON INDUSTRIES. THE IMMEDIATE
SUPERVISOR OF THE INCUMBENT IS THE BUSINESS MANAGER FOR THE FEDERAL
PRISON INDUSTRIES. SIX WAREHOUSE FOREMEN (AT ONE GRADE LOWER) ASSIST
THE INCUMBENT, WHOSE DUTIES INCLUDE COORDINATING THE VARIOUS WAREHOUSE
FUNCTIONS WHICH ARE PERFORMED BY INMATE WORKERS UNDER THE IMMEDIATE
DIRECTION OF THE LOWER GRADED FOREMEN. THE INCUMBENT DOES NOT DIRECT
THE LOWER GRADED FOREMEN IN WHICH INVOLVES ROTATION BASED ON CUSTOM;
SUCH SCHEDULING IS ROUTINE AND OCCUPIES ONLY A SMALL PART OF HIS
WORKDAY. HOWEVER, THE ACTUAL ASSIGNMENT OF WORK COMES FROM OTHER
SOURCES. HE ALSO IS RESPONSIBLE FOR EVALUATING THE SIX WAREHOUSE
FOREMEN. OTHER THAN SUCH ROUTINE SCHEDULING RESPONSIBILITY AND THE
EVALUATION OF THE SIX FOREMEN, THE INCUMBENT'S RESPONSIBILITIES ARE
LIMITED BECAUSE HIS IMMEDIATE SUPERVISOR RETAINS RESPONSIBILITY FOR
GRANTING LEAVE AND OVERTIME; THE BUSINESS MANAGER ALSO RETAINS
RESPONSIBILITY FOR ADJUSTING THE GRIEVANCES OF ALL THE WAREHOUSE
FOREMEN, AS WELL AS HIRING, PROMOTION AND DISCIPLINE.
UNDER THESE CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT THE
WAREHOUSEMAN FOREMAN POSITION IS NOT A SUPERVISORY POSITION WITHIN THE
MEANING OF SECTION 7103(A)(10) OF THE STATUTE. IN THIS REGARD, THE
RECORD INDICATES THAT THE FOREMAN IN QUESTION DOES NOT HAVE AUTHORITY
WITH RESPECT TO HIRING, PROMOTING, DISCIPLINING, OR ADJUSTING
GRIEVANCES. MOREOVER, THE EMPLOYEE OCCUPYING THE POSITION IS PRIMARILY
A COORDINATOR, OR WORKING LEADER, WHOSE ASSIGNMENT AND DIRECTION OF THE
LOWER GRADED FOREMEN IS ROUTING IN NATURE AND DOES NOT INVOLVE THE
CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT. ACCORDINGLY, THE AUTHORITY
SHALL ORDER THAT THE WAREHOUSEMAN FOREMAN, WS-6, BE INCLUDED IN THE
EXCLUSIVELY RECOGNIZED UNIT.
SUPERVISORY TRUST FUND CLERK, GS-8.
THE EMPLOYEE OCCUPYING THE POSITION OF SUPERVISORY TRUST FUND CLERK
REPORTS DIRECTLY TO THE GENERAL BUSINESS MANAGER OF THE PENITENTIARY.
THE RESPONSIBILITIES OF THE POSITION INCLUDE ADMINISTERING THE INMATES'
TRUST FUNDS AND THE OPERATION OF STORES WITHIN THE PENITENTIARY SELLING
PRODUCTS TO THE INMATES. IN ACCOMPLISHING THIS RESPONSIBILITY THE
EMPLOYEE IN QUESTION IS ASSIGNED FOUR SUBORDINATE CLERKS, ALL OF WHOM
ARE GRADED AT GS-6. ALL OF THE CLERKS, INCLUDING THE INCUMBENT, DIRECT
INMATE WORKERS IN THE ACTUAL PERFORMANCE OF MUCH OF THE WORK. THE
INCUMBENT IS GENERALLY RESPONSIBLE FOR OVERSEEING RECORD KEEPING
ACTIVITY AND PROVIDING COVERAGE OF THE COMMISSARY OPERATION. IN THIS
CONNECTION, HE HAS THE AUTHORITY TO MAKE AND SCHEDULE WORK ASSIGNMENTS
AND TO APPROVE ALL LEAVE. HOWEVER, BECAUSE OF A VACANCY AT THE TIME OF
THE HEARING, HE WAS SPENDING A DISPROPORTIONATE AMOUNT OF TIME FILING IN
FOR THE SUBORDINATE CLERKS' COVERAGE OF THE COMMISSARY STORE HOURS.
THE RECORD REFLECTS THAT THE INCUMBENT HAS BEEN INVOLVED IN AT LEAST
TWO INTERVIEWS INVOLVING VACANCIES OF SUBORDINATE CLERK POSITIONS, AND
IN ONE INSTANCE HE WAS ASKED TO GIVE A WRITTEN RECOMMENDATION. ALTHOUGH
HE WAS NOT THE DECIDING OFFICIAL, HIS RECOMMENDATION WAS FOLLOWED.
WHILE THE INCUMBENT HAS NOT FORMALLY DISCIPLINED ANY EMPLOYEES, HE HAS
COUNSELLED ONE OF THE SUBORDINATE CLERKS WITH RESPECT TO THE CLERK'S
WORK PERFORMANCE. IN THIS REGARD, THE INCUMBENT TESTIFIED HE HOLDS
REGULAR MEETINGS WITH ALL OF THE SUBORDINATE CLERKS IN AN ATTEMPT TO
RESOLVE ANY PROBLEMS INFORMALLY. IN ADDITION, HE HAS RECOMMENDED THAT
ONE OF THE SUBORDINATE CLERKS BE UPGRADED, ALTHOUGH AT THE TIME OF THE
HEARING HIS SUPERIOR HAD NOT ACTED UPON THAT RECOMMENDATION. FINALLY,
HE IS RESPONSIBLE FOR EVALUATING ALL OF THE SUBORDINATE CLERKS.
IN THESE CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT THE EMPLOYEE
OCCUPYING THE SUPERVISORY TRUST FUND CLERK POSITION IS A SUPERVISOR
WITHIN THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE, AS THE
INCUMBENT'S DISCRETION WITH RESPECT TO THE ASSIGNMENT AND DIRECTION OF
THE SUBORDINATE CLERKS IS NOT ROUTINE AND INVOLVES THE CONSISTENT
EXERCISE OF INDEPENDENT JUDGMENT. /10/ IN THIS CONNECTION, HE IS
PRIMARILY RESPONSIBLE FOR MAKING AND SCHEDULING THE WORK ASSIGNMENTS OF
THE SUBORDINATE CLERKS IN TWO SEPARATE WORK OPERATIONS AND HE HAS FULL
AUTHORITY FOR APPROVING THEIR LEAVE. FURTHER, HE HOLDS REGULAR MEETINGS
WITH HIS SUBORDINATES TO DEAL WITH POTENTIAL GRIEVANCES, AND HE HAS
COUNSELLED ONE EMPLOYEE WITH RESPECT TO WORK PERFORMANCE. ALSO, HE HAS
HAD SUBSTANTIAL INVOLVEMENT IN HIRING IN WHICH HIS RECOMMENDATIONS HAVE
BEEN FOLLOWED, AND HE HAS RECOMMENDED THAT ONE OF HIS SUBORDINATES BE
PROMOTED. ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE SUPERVISORY
TRUST FUND CLERK, GS-8, BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED
UNIT.
ASSISTANT FOOD ADMINISTRATOR, GS-11.
THE INCUMBENT OF THIS POSITION IS THE ASSISTANT FOOD ADMINISTRATOR IS
RESPONSIBLE FOR THE PLANNING, PREPARATION AND SERVICE OF FOOD TO THE
INMATES. THE INCUMBENT OR THE FOOD SERVICE ADMINISTRATOR GENERALLY IS
PRESENT DURING ALL OF THE WEEKLY MEAL PERIODS. CONSEQUENTLY, THEY WORK
DIFFERENT SCHEDULES, WITH SOME OVERLAP. THE FOOD SERVICE ADMINISTRATOR
HAS DELEGATED TO THE INCUMBENT THE RESPONSIBILITY FOR SCHEDULING THE
WORK OF THE THIRTEEN SUBORDINATE FOREMEN WHO ARE GRADED AT THE WS-8
LEVEL. THESE FOREMEN DIRECTLY SUPERVISE INMATE WORKERS IN THE VARIOUS
ASPECTS OF MEAL PREPARATION AND FOOD SERVICE. THE INCUMBENT IS
RESPONSIBLE FOR SCHEDULING ROTATING SHIFTS OF THE FOREMEN, AND FOR
APPROVING OVERTIME WHEN NECESSARY. IN ADDITION, LEAVE RECORDS FOR THE
THIRTEEN SUBORDINATE FOREMEN ARE MAINTAINED BY THE INCUMBENT AND AS PART
OF HIS RESPONSIBILITY HE HAS THE AUTHORITY TO APPROVE LEAVE. IN THIS
REGARD, HE OCCASIONALLY FILLS IN FOR A SUBORDINATE FOREMAN, BUT HE
PRIMARILY IS RESPONSIBLE FOR COORDINATING THE OPERATION. IN ADDITION,
THE RECORD REFLECTS THAT THE INCUMBENT SUBSTITUTES FOR THE FOOD SERVICE
ADMINISTRATOR BOTH WHEN HE IS ON LEAVE AND DURING THOSE DAILY PERIODS
WHEN THE INCUMBENT IS PRESENT AND THE ADMINISTRATOR IS NOT SCHEDULED TO
WORK. DURING THESE SUBSTITUTION PERIODS THE INCUMBENT HAS ATTENDED
MANAGEMENT MEETINGS. FINALLY, THE INCUMBENT HAS THE RESPONSIBILITY FOR
EVALUATING THE THIRTEEN SUBORDINATE FOREMEN.
IN THESE CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT THE EMPLOYEE IN
THE POSITION OF ASSISTANT FOOD ADMINISTRATOR IS A SUPERVISOR WITHIN THE
MEANING OF SECTION 7103(A)(10) OF THE STATUTE. THUS, THE RECORD
REFLECTS THAT THE INCUMBENT'S AUTHORITY WITH RESPECT TO THE ASSIGNMENT
AND DIRECTION OF THE SUBORDINATE FOREMEN IS NOT ROUTINE IN NATURE AND
REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT. IN THIS
CONNECTION, HE HAS BEEN DELEGATED RESPONSIBILITY FOR THE ASSIGNMENT AND
SCHEDULING OF THE SUBORDINATE FOREMEN AND FOR THE APPROVAL OF THEIR
OVERTIME. MOREOVER, HE MAINTAINS THEIR LEAVE RECORDS AND HAS THE
AUTHORITY TO APPROVE THEIR LEAVE. FURTHER, HE SERVES IN PLACE OF THE
FOOD SERVICE ADMINISTRATOR AND IN HIS ABSENCE HAS ATTENDED MANAGEMENT
MEETINGS. ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE ASSISTANT
FOOD ADMINISTRATOR, GS-11, BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED
UNIT.
RECORDS CONTROL SUPERVISOR, GS-8.
THE RECORDS CONTROL SUPERVISOR'S IMMEDIATE SUPERVISOR IS THE RECORDS
SYSTEM MANAGER. ALL INMATE RECORDS ARE KEPT IN THE RECORDS OFFICE.
WITHIN THE RECORDS SYSTEM MANAGER'S OFFICE, THREE EMPLOYEES ASSIST THE
RECORDS CONTROL SUPERVISOR: TWO RECORDS CONTROL ASSISTANTS AND A
RECORDS CLERK. AT THE TIME OF THE HEARING, THE EMPLOYEE PREVIOUSLY
OCCUPYING THE POSITION IN QUESTION HAD BEEN TEMPORARILY PROMOTED TO THE
VACANT RECORDS SYSTEM MANAGER POSITION, AND ONE OF THE RECORDS CONTROL
ASSISTANTS HAD BEEN TEMPORARILY PROMOTED TO THE RECORDS CONTROL
SUPERVISOR POSITION. BOTH EMPLOYEES TESTIFIED REGARDING THE DUTIES OF
THE POSITION IN QUESTION. HOWEVER, THEIR EXPERIENCES WERE NOT
CONSISTENT WITH EACH OTHER. THUS, WHILE THE EMPLOYEE TEMPORARILY
PROMOTED TO RECORDS SYSTEM MANAGER TESTIFIED THAT WHEN HE SERVED IN THE
POSITION THE THREE EMPLOYEES GENERALLY REPORTED TO HIM, RECEIVED THEIR
ASSIGNMENTS PRIMARILY FROM HIM AND HAD THEIR WORK MONITORED BY HIM, THE
EMPLOYEE PRESENTLY OCCUPYING THE POSITION IN A TEMPORARY PROMOTED TO
RECORDS SYSTEM MANAGER TESTIFIED THAT THAT WHEN HE SERVED IN THE
POSITION THE THREE EMPLOYEES GENERALLY REPORTED TO HIM, RECEIVED THEIR
ASSIGNMENTS PRIMARILY FROM HIM AND HAD THEIR WORK MONITORED BY HIM, THE
EMPLOYEE PRESENTLY OCCUPYING THE POSITION IN A TEMPORARY PROMOTION
TESTIFIED THAT OTHER THAN COORDINATING THE THREE EMPLOYEES' WORK, HE HAS
NOT BEEN INVOLVED IN ASSIGNING OR MONITORING THEIR ACTIVITY. IN
ADDITION, HE HAD NOT BEEN INVOLVED IN DISCIPLINE, NOR HAD HE COMPLETED
AN EVALUATION. HOWEVER, BOTH THE FORMER INCUMBENT AND THE CURRENT
TEMPORARY INCUMBENT TESTIFIED THAT THE RECORDS SYSTEM MANAGER, NOT THE
RECORDS CONTROL SUPERVISOR, HAS THE RESPONSIBILITY FOR LEAVE APPROVAL
FOR ALL EMPLOYEES IN THE OFFICE AND THAT THE THREE EMPLOYEE; WHO ASSIST
THE INCUMBENT OF THE POSITION IN QUESTION GENERALLY KNOW THEIR JOB SO
THAT LITTLE DAY-TO-DAY DIRECTION IS REQUIRED. FINALLY, THE RECORD
REFLECTS THAT THE RESPONSIBILITY FOR HIRING, PROMOTING, TRANSFERING AND
OTHER SUPERVISORY INDICIA IS GENERALLY HELD BY THE RECORDS SYSTEM
MANAGER, OR SOMEONE HIGHER IN THE CHAIN OF COMMAND.
IN THESE CIRCUMSTANCES, THE AUTHORITY FINDS THE EVIDENCE INSUFFICIENT
TO CONCLUDE THAT THE EMPLOYEE PRESENTLY OCCUPYING THE POSITION OF
RECORDS CONTROL SUPERVISOR IS A SUPERVISOR WITHIN THE MEANING OF SECTION
7103(A)(10) OF THE STATUTE. IN THIS REGARD, THE INCUMBENT WAS ONLY
RECENTLY TEMPORARILY PROMOTED TO THE POSITION, AND HIS TESTIMONY
REFLECTS THAT HE HAS EXERCISED NO SUPERVISORY AUTHORITY, WITHIN THE
MEANING OF SECTION 7103(A)(10) OF THE STATUTE OVER THE EMPLOYEES WHO
ASSIST HIM. ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE RECORDS
CONTROL SUPERVISOR, GS-8, BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED
UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN FOR
WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES COUNCIL OF PRISON
LOCALS, AFL-CIO, WAS RECOGNIZED JANUARY 17, 1968, UNDER EXECUTIVE ORDER
10988, BE, AND IT HEREBY IS, CLARIFIED BY INCLUDING IN THE UNIT THE
FOLLOWING POSITIONS: WELDING MACHINE OPERATOR FOREMAN, WS-11; PAINTER
FOREMAN, WS-10; GENERAL FACILITIES EQUIPMENT REPAIRS FOREMAN, WS-11;
SHEET METAL FORMING MACHINE OPERATOR FOREMAN, WS-9; AUTOMOTIVE MECHANIC
FOREMAN, WS-10; PLUMBER FOREMAN, WS-10; MACHINIST FOREMAN, WS-11;
ELECTRICIAN FOREMAN, WS-11; WAREHOUSEMAN FOREMAN, WS-6; AND, RECORDS
CONTROL SUPERVISOR, GS-8. THE UNIT IS FURTHER CLARIFIED BY EXCLUDING
FROM THE EXCLUSIVELY RECOGNIZED UNIT THE SUPERVISORY TRUST FUND CLERK,
GS-8 AND THE ASSISTANT FOOD ADMINISTRATOR, GS-11.
ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ THE EXCLUSIVE UNIT CONSISTS OF ALL EMPLOYEES, CLASS ACT (GENERAL
SCHEDULE) AND WAGE GRADE, INCLUDING PROFESSIONALS, OF THE BUREAU OF
PRISONS AND FEDERAL PRISON INDUSTRIES, EXCLUDING MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY AND ANY "SUPERVISOR" AS DEFINED IN SECTION 2(C) OF
EXECUTIVE ORDER 11491 AS AMENDED.
/2/ SECTION 7103(A)(10) PROVIDES:
SEC. 7103. DEFINITIONS; APPLICATION (A) FOR THE PURPOSE OF THIS
CHAPTER--
. . . .
(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(.)
/3/ AN AGENCY'S DETERMINATION THAT CERTAIN EMPLOYEES ARE
"SUPERVISORS" FOR PAY PURPOSES IS NOT CONTROLLING ON THE AUTHORITY WHEN
IT DETERMINES UNIT PLACEMENT UNDER THE STATUTE. SEE INTERPRETATION AND
GUIDANCE, 4 FLRA NO. 99(1980).
/4/ SEE NORTH CAROLINA AIR NATIONAL GUARD, CHARLOTTE, NORTH CAROLINA,
4 FLRA NO. 44(1980), WHERE THE AUTHORITY NOTED THAT SECTION 7103(A)(10)
DEFINES "SUPERVISOR" AS AN INDIVIDUAL HAVING AUTHORITY OVER "EMPLOYEES,"
WHO IN TURN ARE DEFINED IN SECTION 7103(A)(2), AS "INDIVIDUAL(S)
EMPLOYED IN AN AGENCY . . . ."
/5/ SECTION 7103(A)(2)(A) PROVIDES:
(A) FOR THE PURPOSE OF THIS CHAPTER--
. . . .
(2) 'EMPLOYEE' MEANS AN INDIVIDUAL-- (A) EMPLOYED IN AN AGENCY . . .
.
/6/ THE ACTIVITY HAS CLASSIFIED BOTH THE LEAD FOREMAN AND THE LOWER
GRADED FOREMEN AS "WS" FOREMEN, WHICH INDICATES THEY ARE WAGE GRADE
SUPERVISORS. THE ACTIVITY BASES THIS DETERMINATION ON THEIR
RESPONSIBILITIES IN DIRECTING INMATE WORKERS. THERE IS NO CONTENTION
THAT THE LOWER GRADED FOREMEN ARE SUPERVISORS WITHIN THE MEANING OF THE
STATUTE.
/7/ ARTICLE 29, STEP 1 OF THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE
STATES, IN PERTINENT PART:
"(A)N EMPLOYEE . . . SHALL FIRST PRESENT THE MATTER TO HIS/HER
IMMEDIATE SUPERVISOR
. . . ."
/8/ SEE GENERAL SERVICES ADMINISTRATION, REGION 4, ATLANTA, GEORGIA,
3 FLRA NO. 23(1980); ARMY AND AIR FORCE EXCHANGE SERVICE, BASE
EXCHANGE, FORT CARSON, COLORADO, 3 FLRA NO. 95(1980); NATIONAL GUARD
BUREAU, MASSACHUSETTS AIR NATIONAL GUARD, 3 FLRA NO. 138(1980).
/9/ COMPARE, NATIONAL GUARD BUREAU, MASSACHUSETTS AIR NATIONAL GUARD,
BARNES MUNICIPAL AIRPORT, 4 FLRA NO. 12(1980).
/10/ SEE NOTE 9, SUPRA.