OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second
Street, S.E.
Washington, D.C. 20540-1999
_______________________
Office of the U.S. Senate
Sergeant at Arms,
Employing Office,
and Case No. 97-LM-3
National Association of
Broadcast Employees
and Technicians,
Communications Workers
of America, AFL-CIO,
Petitioner.
_______________________
Before the Board of Directors: Glen D.
Nager, Chair; James N. Adler; Jerry M. Hunter; Lawrence Z. Lorber;
Virginia A. Seitz, Members.
DECISION AND DIRECTION
OF ELECTION
I.
Petitioner, National Association of Broadcast
Employees and Technicians, Communications Workers of America, AFL-CIO
("Petitioner" or "NABET") has duly filed with the Board of Directors
of the Office of Compliance ("the Board") a petition to represent
employees of the U.S. Senate Recording Studio, which is under the
jurisdiction of the Central Operations Department of the Office
of the U.S. Senate Sergeant at Arms ( "Employing Office" or "SAA").
In response to the petition, the Board, acting pursuant to its authorities
under Chapter 71 of title 5, United States Code, as applied by section
220 of the Congressional Accountability Act of 1995 (the "CAA"),
2 U.S.C. § 1351, and the regulations of the Office of Compliance,
has investigated the petition. Finding that there is a question
concerning representation, the Board held a pre-election investigatory
hearing to develop a record upon which to make a decision.
II.
NABET seeks to represent a group of employees
of the U.S. Senate Recording Studio. The Recording Studio provides
the Senate with television, radio, and videotape services, including
live and videotaped gavel-to-gavel coverage of Senate floor and
committee proceedings, as well as field coverage of press conferences
and other events which occur at sites other than the Senate floor
or the Recording Studio. Record at I:115-16. (All Record references
are to the Official Transcript of the Pre-Election Investigatory
Hearing, Volumes I-VI, referring to the transcript of the hearing
conducted on October 23, 1997 and November 4, 10, 12, 17, and 18,
1997, respectively.) The Recording Studio operates two television
studios and two radio stations and also offers post-production editing
services. Id. The Director of the Recording Studio, now
termed the Branch Manager, is responsible for the overall management
of the Studio. Id. at I:112-13, 125-26. A number of employees
including the Production Manager, Administrative Manager, and the
LAN Administrator report directly to him. Id. at I:119.
The Studio is divided into five different workgroups:
production, taperoom, electronic newsgathering ("ENG" or "field
operations"), radio, and video engineering. Each workgroup is directed
by one or more levels of supervisor who oversee the work of a variety
of Production Technicians, who are classified as level I, II or
III, depending on their technical proficiency with the requisite
equipment and their performance evaluations. Record at I:142-43.
Production, the largest of the workgroups, is headed by the Production
Supervisor, to whom a Graphic Artist, a Production Technician, a
Staff Assistant, three Technical Directors, and three Production
Directors report directly. This workgroup is divided into two shifts,
which rotate between providing live television coverage and studio
videotape work. Record at I:120-21; Employing Office Exhibit No.
5. Each shift contains one or two Technical Directors, who handle
personnel and technical aspects of the work, one or two Production
Directors, who handle the artistic direction, and a number of Production
Technicians, who, along with the Technical Directors, operate the
equipment needed for the production. Record at V:1084-91. The taperoom
consists of the Taperoom Supervisor and up to five other employees,
including Tape Production Technicians and a Staff Assistant. The
taperoom provides post-production services such as videotape editing,
dubbing, and graphics, and also makes master recordings of all Senate
proceedings. The Taperoom Supervisor reports to the Production Manager.
Record at I:133-34; IV:1025-26. The field operations unit consists
of a Manager, a Supervisor and up to four permanent employees, who
are responsible for covering all field events, such as committee
hearings and press briefings by individual Senators. Other regular
production employees are assigned temporarily to this unit as needed
by these events. Record at I:276. The radio group has two employees,
the Radio Supervisor and a Radio Production Technician, who together
run the two Senate Radio Studios. Record at V:1251-52.
The final unit in the Recording Studio is video
engineering. At the time at which the original representation petition
was filed, video engineering was part of the Recording Studio. In
October 1997, the unit was moved to the Network Engineering Branch
of Technical Operations as part of the SAA's reorganization. However,
it was returned to the Recording Studio in February 1998, during
the pendency of these proceedings. See Employing Office's
Withdrawal of Objection (Feb. 4, 1998). The unit, directed by an
Engineering Manager, consists of an Engineering Supervisor and four
video Engineering Technicians, who provide video support for the
Recording Studio, as well as assisting other parts of the U.S. Senate
with their needs for video equipment and related engineering expertise.
Record at IV: 958-68.
III.
Petitioner seeks to represent all but the supervisory
and administrative employees of the Recording Studio. The petition,
as amended, (1) describes the appropriate
unit as consisting of employees in the following positions: Production
Technician I, Production Technician II and Production Technician
III (production, tape, radio and ENG/field operations); Production
Director; Production Staff Assistant (production, tape); Graphics
Artist; Taperoom Supervisor; Radio Supervisor; ENG/field operations
Supervisor; and Engineering Supervisor; Engineering Technician II,
and Engineering Technician III. See Petitioner's Exhibit
No. 1; Petitioner's Motion to Amend Unit Description (Feb. 25, 1998).
The petition proposes to exclude from the proposed unit nonsupervisory
employees in the following positions: "Administrative Manager; LAN
Administrator; Office Manager; Assistant LAN Manager [Administrator];
and Staff Assistant (administrative)." Petitioner's Exhibit No.
1. The petition, as amended in the Hearing, recognizes that, under
the statute, the Engineering Manager position "is properly excluded
as supervisory," id., while Petitioner's February 25, 1998
motion withdraws from the unit the position of Technical Director
which the Employing Office argued was also statutorily excluded
as supervisory. The positions of "Manager, Production Manager, and
Production Supervisor," which the Employing Office contends are
supervisory, Employing Office Brief at 2, were omitted from the
unit description without discussion and are therefore not included
in the proposed unit.
The Employing Office originally opposed the
inclusion of the positions of Engineering Technician II and III
in the proposed unit on the grounds that, since the reorganization
of the SAA, the technicians were no longer organizationally part
of the Recording Studio, and thus did not share a community of interest
with the rest of the employees in the proposed unit. Employing Office
Brief at 36-42. However, on February 4, 1998, the Employing Office
withdrew its objection to the inclusion of the Engineering Technician
II and III positions when "the employees in the positions of Engineering
Supervisor, Engineering Technician II and Engineering III [were]
reassigned from the Network Engineering Branch of the Technical
Operations Department of the SAA to the Recording Studio." Employing
Office Withdrawal of Objection at 2. Therefore, the parties
no longer disagree about the appropriateness of the unit proposed
by the petition. The Board concludes that such a functional unit
consisting of the above-named positions is appropriate within the
meaning of section 7112(a)(1) of title 5, as applied by section
220(c)(1) of the CAA. See Office of Communications Media,
Office of the Chief Administrative Officer, Employing Office and
Nat'l Association of Broadcast Employees and Technicians, Communications
Workers of America, AFL-CIO, Petitioner, No. 96-LM-2 at 2-3
(March 17, 1997) (citations omitted).
However, the Employing Office opposes the inclusion
of the following positions: Taperoom Supervisor, Field Operations
Supervisor, Radio Supervisor, and Engineering Supervisor on the
grounds that they are supervisory positions within the meaning of
section 7103(a)(10) of title 5, as applied by section 225(f)(1)
of the CAA, 2 U.S.C. § 1361(f)(1). See Employing Office Brief
at 2. For the reasons set forth below, the Board has determined
that the individuals in these positions are statutory supervisors
and therefore must be excluded from the unit.
IV.
Section 7112(b)(1) of title 5, as applied by
the CAA, provides that a bargaining unit is not appropriate if it
includes a supervisor. Section 7103(a)(10) defines a "supervisor"
as:
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 . . . .
An employee need only exercise or effectively
recommend any one of the supervisory criteria set forth in the statute
to be found a supervisor, as long as the employee consistently uses
the requisite independent judgment in connection with the exercise
or effective recommendation of that criterion. See, e.g., U.S.
Dep't of the Navy, Portsmouth Naval Shipyard, Portsmouth, N.H.,
38 F.L.R.A. 764, 766, 768-69 (1990); U.S. Dep't of Veterans
Affairs, Veterans Admin. Medical Ctr., Allen Park, MI, 35 F.L.R.A.
1206, 1211 (1990); Dep't of the Navy, Naval Undersea Warfare
Eng'g Station, Keyport, WA, 7 F.L.R.A. 526, 527 & n.1 (1981).
This is so, moreover, even if another individual also exercises
or makes recommendations concerning the same statutory criterion.
See, e.g., Veterans Admin. Medical Ctr., 35 F.L.R.A. at 1211.
Accordingly, "where an individual exercises independent judgment
in evaluating employee performance, and where that evaluation is
relied on by upper-level management in taking an action listed among
the indicia of supervisory authority specified in section 7103(a)(10),
thereby constituting the effective recommendation of that action,
a sufficient basis exists to conclude that the individual constitutes
a supervisor within the meaning of section 7103(a)(10) of the Statute."
U.S. Dep't of the Interior, Bureau of Indian Affairs, Navajo
Area Office, Gallup, NM, 45 F.L.R.A. 646, 650 (1992).
The evaluation need not be the sole factor in upper-level management's
decision, so long as it is a significant factor. Id. at 656-57.
The Employing Office contends, on a number of
grounds, that the positions of Taperoom Supervisor, Field Operations
Supervisor, Radio Supervisor, and Engineering Supervisor are supervisory
within the meaning of the statute. See, e.g., Employing Office
Brief at 10-14 (arguing that Taperoom Supervisor uses independent
judgment to assign and direct work; arrange employee schedules and
leave; perform performance evaluations; resolve grievances and recommend
disciplinary measures; make hiring and transfer recommendations;
as well as pointing out that he attends meetings and training for
supervisory personnel). The Board addresses only the claim that
these positions are supervisory because the individuals at issue
perform performance evaluations that require the consistent exercise
of independent judgment and that are relied on by upper-level management
in awarding or withholding pay increases, including within grade
and other promotions, as well as in making decisions respecting
probationary status.
The Taperoom Supervisor, Field Production Supervisor,
Radio Supervisor, and Engineering Supervisor play a central role
in the performance evaluation process used by the Recording Studio.
The Recording Studio evaluates all probationary employees on a three
or six month basis and all nonprobationary employees annually on
the anniversary date of their hiring, using forms developed by the
SAA. The current form evaluates nonsupervisory employees on 11 factors:
(1) quality of work; (2) quantity of work (3) attendance and punctuality
(4) initiative and resourcefulness; (5) job knowledge; (6) judgment
and analytical ability; (7) work organization; (8) dependability/reliability;
(9) interpersonal relations and cooperation (10) communication;
and (11) compliance with organizational policies and procedures.
See Employing Office Exhibit No. 7. Employees
are awarded one of the following three "grades" on each factor:
"exceeds standards," "meets standards," "needs improvement." Id.
In addition, in the current form there is a section provided for
narrative comments by the "Immediate Supervisor," as well as a separate
section for comments by "Mid-level Supervisors, Director," id.,
while in the previous form there was space for narrative comments
next to each factor, see Employing Office Exhibit No. 6.
It is undisputed that, apart from time and attendance, see
Record at I:215, the current incumbents of the positions of Taperoom
Supervisor, Field Production Supervisor, Radio Supervisor, and Engineering
Supervisor (hereinafter collectively "Immediate Supervisors") evaluate
the performance of the nonsupervisory employees in their respective
units on the above factors, complete the section for narrative comments
by the "Immediate Supervisor," Employing Office Exhibit No. 7, sign
the evaluation in the space for the "Supervisor's Signature," id.,
and generally go over the completed evaluation in person with the
employees in their units, see, e.g., Record at I:134-38 ;
see also Office of Compliance Exhibit No. 3. The completed evaluation
form becomes part of the individual's personnel file. Record at
I:137-38.
Completing these evaluations requires that the
Immediate Supervisors consistently make independent judgments that
are not routine or clerical in nature. See U.S. Dep't
of the Interior, Bureau of Indian Affairs, 45 F.L.R.A. at 657
(individual's evaluations and recommendations constituted an exercise
of independent judgment where supervisor did not tell him how to
evaluate the employees, but relied on his independently formed assessment
of their performance); U.S. Dep't of the Navy, Portsmouth Naval
Shipyard, 38 F.L.R.A. at 766-67 (affirming Regional Director's
finding of consistent exercise of independent judgment in the performance
appraisal process and in effectively recommending for awards "because
of the limited direction and guidance from higher level management");
cf. U.S. Dep't of the Army, Army Aviation Systems Command, 36
F.L.R.A. 587 (1990) (collecting cases on exercise of independent
judgment in making and evaluating assignments and finding 5 out
of 7 engineers supervisors based on their independence in assessing
and assigning work). Testimony established that there are no set
standards or guidance from upper level management for determining
whether an employee "meets," "exceeds," or "needs improvement" in
any area; the Immediate Supervisors must use their own judgment
to make that determination for each factor. See, e.g., Record
at II:338; IV:1028. Moreover, in their narrative comments, the Immediate
Supervisors independently assess areas such as the employee's overall
proficiency, progress in his or her craft, interpersonal skills,
contribution to the work of the unit, and fitness for promotion
and or pay increases. See, e.g., Employing Office Exhibit
Nos.16, 19, 48. These comments are also used by the Director in
determining the overall evaluation of an employee as "exceeds" "meets"
or "needs improvement" and in deciding whether to give a merit salary
increase or within-grade promotion. Record at I:146.
Because upper-level management relies on the
Immediate Supervisors' evaluations in making pay, promotion, and
retention decisions and almost always accepts their evaluations
without change, the Immediate Supervisors' role in the evaluation
process constitutes the effective recommendation of actions specified
in section 7103(a)(10) as indicia of supervisory authority. See
U.S. Dep't of the Interior, Bureau of Indian Affairs, 45
F.L.R.A. at 657; see also USA DARCOM Materiel Readiness Support
Activity (MRSA), Lexington, KY, 8 F.L.R.A. 46, 50 (1982). Record
evidence established that evaluations are determinative in the decision
whether to award a pay increase: receiving an overall rating of
"meets" is the prerequisite for consideration for any type of pay
increase and a very high rating without more constitutes an effective
recommendation for a pay increase to the extent such increases are
authorized by the budget process. See, e.g., Record at II:715,
855, 993-95; II:358-59; IV:1019; see also Office of Compliance
Exhibit No. 3. These evaluations are also used for within-grade
promotions, as well as other promotions. See, e.g., Record
at I:141-42, 256; II:357-58; III:872-74. The Immediate Supervisors'
evaluation of probationary employees is given great weight in determining
whether those employees will be taken off probationary status, kept
on probationary status, or terminated. See, e.g., Record
at I:144-46; II:345. A very poor evaluation can result in an employee
being placed on probationary status. Record at I:145-66. Notwithstanding
Petitioner's vigorous objection to the contrary, see Petitioner
Brief at 11-16, the Board concludes that the Hearing Officer provided
Petitioner with a fair opportunity to examine the evaluations relied
on by the Employing Office to demonstrate that the Immediate Supervisors'
evaluations are rarely altered by senior supervisors, see
Record at VI:134-36. Petitioner's examination yielded only one additional
example of an evaluation altered by upper level management out of
the many evaluations on the record. See Order Directing Inclusion
of Proposed Stipulation of Facts in Record, Ruling on Exhibits and
Closing the Record (November 24, 1997). This is insufficient to
contradict the Employing Office's testimony that these evaluations
are generally accepted and relied upon by senior supervisors without
change. See, e.g., Record at I:146; II:358-60;VI:98, 113.
The Board concludes, based on the above Record
evidence, that the Taperoom Supervisor, Field Operations Supervisor,
Radio Supervisor, and Engineering Supervisor perform evaluations
that require the consistent exercise of independent judgment and
that are relied on by upper level supervisors in determining whether
or not to award pay increases, making within-grade promotions, and
making determinations respecting probationary status. These individuals
are therefore supervisory personnel within the meaning of section
7103(a)(10) of title 5, as applied by the CAA and must therefore
be excluded from the unit.
DIRECTION OF ELECTION
An election by secret ballot shall be conducted
among employees in the following unit, as early as possible, but
not later than 40 days from the date of this decision:
All employees of the U.S. Senate Recording
Studio of the Office of the U.S. Senate Sergeant at Arms, including
employees of the production, tape, radio, field/ENG, and engineering
groups, but excluding employees in the positions of Technical
Director; Taperoom Supervisor; Radio Supervisor; Field/ENG Supervisor;
Engineering Supervisor; Engineering Manager; Administrative Manager;
Director; LAN Administrator; Office Administrator; Assistant LAN
Administrator; Staff Assistant (administrative); and those employees
excluded by statute.
The Executive Director of the Office (or her
designee) shall supervise and conduct the election, subject to the
Office's rules and regulations. Eligible to vote are those in the
unit who were employed during the payroll period immediately preceding
the date below, including employees who did not work during that
period because they were out ill, or on vacation, or on furlough,
including those in military service who appear in person at the
polls. Ineligible to vote are employees who have quit or were discharged
for cause since the designated payroll period and who have not been
rehired or reinstated before the election date. Those eligible to
vote within the appropriate unit shall vote whether or not they
wish to be represented for the purpose of exclusive recognition
by the National Association of Broadcast Employees and Technicians,
Communications Workers of America, AFL-CIO, or no labor organization.
Issued, Washington, D.C., March 5, 1998
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