OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second Street, S.E.
Washington, D.C. 20540-1999
U.S. Capitol Police Board,
and Case No. 96-LM-1
Teamsters Local Union No. 246,
International Brotherhood of
Fraternal Order of Police,
D.C. Lodge No. 1,
U.S. Capitol Police Labor
International Union of Police
Associations, AFL-CIO, and its
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
Teamsters Local Union No. 246, International
Brotherhood of Teamsters ("Petitioner"), has duly filed with the
Board a petition to represent employees of the United States Capitol
Police Board (the "Employing Office"). Two other unions, the Fraternal
Order of Police, D.C. Lodge No.1, U.S. Capitol Police Labor Committee
("FOP"), and the International Union of Police Associations, AFL-CIO,
and its Local 1776 ("IUPA"), intervened in the case. In response
to the petition, the Board of Directors of the Office of Compliance
(the "Board"), acting pursuant to its authorities under Chapter
71 of title 5 of the United States Code, as applied by section 220(c)(1)
of the Congressional Accountability Act of 1995 (the "CAA"), 2 U.S.C.
§ 1351, and the Board's regulations, has investigated the petition
and, finding that there was a question concerning representation,
has held a pre-election investigatory hearing to develop a record
upon which to make a decision as to disputed representation issues.
The Employing Office has also raised several collateral issues relating
to the conduct of the hearing. Some of those issues have been decided
previously by order. The Board now disposes of the rest.
A. Appropriate Unit
The parties agree that a unit consisting of
all police officers, defined as sworn members of the United States
Capitol Police who are authorized to carry a gun and to make arrests,
except those employees excluded by statute, is appropriate. Record
at I:46-47; II:235-240; III:7-8. (All Record references are to the
Official Transcript of the Pre-Election Investigatory Hearing, Volumes
I-V, referring to the transcript of the hearing conducted on November
12 and 13 and December 2, 3, and 4, 1996, respectively.) However,
the parties have different views concerning the point at which probationary
police officers, during their probationary period, have a clear
and identifiable community of interest with other police officers
and are therefore appropriately included in the bargaining unit,
as well as whether a number of employees meet the statutory criteria
The parties agree that, once probationary employees
complete their approximately twenty weeks of processing and classroom
training, and graduate as sworn police officers, they have the same
police powers as other police officers, and should be included in
the bargaining unit. See Employing Office Post-Hearing
Brief at 53-54; Petitioner Post-Hearing Brief at 14; FOP Post-Hearing
Brief at 8, 12; IUPA Post-Hearing Brief at 5-6, 8. However, Petitioner
contends that all probationary employees are properly included in
the bargaining unit from their initial date of employment. FOP agrees,
but argues in the alternative that probationary employees are appropriately
included in the unit when they graduate from their academic training
and are sworn in as officers of the United States Capitol Police.
IUPA argues for inclusion from the date that the probationary officers
are sworn, but takes no position as to the inclusion in the unit
of probationary employees before their swearing-in ceremony. In
its brief, the Employing Office argues that, until probationary
employees are sworn in as U.S. Capitol Police Officers, they do
not fall within the agreed-upon definition of the bargaining unit,
do not share a community of interest with other police officers,
and do not have a reasonable expectation of continued employment;
further, the Employing Office notes that, even after they are sworn,
probationary employees are evaluated more frequently than non-probationary
employees and may be dismissed without being given a due process
hearing during their probationary year. Therefore, the Board must
determine whether the agreed-upon unit of all sworn police officers
is appropriate; whether probationary employees, before they are
sworn, share a community of interest with that unit; and whether,
once they are sworn, probationary employees have a clear and identifiable
community of interest with other sworn officers within the meaning
of the statute such that they are appropriately included in the
Under section 7112(a)(1) of title 5, as applied
by section 220(c)(1) of the CAA, the Board "shall determine the
appropriateness of any unit." A unit is appropriate only if it "will
ensure a clear and identifiable community of interest among the
employees in the unit and will promote effective dealings with and
efficiency of the operations of the agency involved." Id
All three statutory criteria must be met. See Red River Army
Depot Texarkana, Tex., 17 F.L.R.A. 216, 218 (1985) (failure
to satisfy any one of the three criteria must result in a finding
that the unit sought is inappropriate); Dep't of Health and
Human Services Pub. Health Serv. Food and Drug Admin. Bureau of
Drugs, 11 F.L.R.A. 687, 688 (1983).
The determination of shared community of interest
is made on a case-by-case basis. See U.S. Dep't of the Interior
Nat'1 Park Serv. Rocky Mountain Nat'1 Park Estes Park, Colo.,
48 F.L.R.A. 1404 (1994). While no single factor is dispositive,
where employees are subject to the same management structure, the
same personnel policies, the same pay structure, and receive the
same benefits, there is ordinarily a clear and identifiable community
of interest. See U.S. Dep't of the Air Force Air Force Materiel
Command Wright-Patterson Air Force Base, 47 F.L.R.A. 602, 610-11(1993)
(community of interest found where employees shared common mission
and organizational structure, performed similar duties and functions,
had common conditions of employment, and were subject to same labor
relations policies administered by a single personnel office); Nat'l
Treasury Employees Union Chapter 243, 39 F.L.R.A.
Generally, once a clear and identifiable community
of interest is found, and there is no evidence that the unit will
hinder effective dealings with and efficiency of the operations
of the agency, the bargaining unit will ordinarily be found to satisfy
the latter two statutory criteria as well. See, e.g., U.S. Dep't
of the Air Force Air Force Materiel Command Wright-Patterson Air
Force Base, 47 F.L.R.A. 602, 610-11(1993). Further, the bargaining
unit will generally be found to promote effective dealings and efficiency
of operations within the meaning of the statute, if the described
unit is rationally related to the operations and organizational
structure of the agency. See Defense Logistics Agency, Defense
Contract Management Command, Defense Contract Management District,
North Central, Defense Plant Representative Office-- Thiokol Brigham
City, Utah, 41 F.L.R.A. 316, 330 (1991).
It is well established that probationary employees
may be included in bargaining units along with non-probationary
employees, even though they do not have the same procedural protections
against termination as other employees in the unit. See U.S.
Dep't of Hous. and Urban Dev., 41 F.L.R.A. 1226, 1237-38 (1991)
(citing Dep't of the Navy, Navy Exchange, Mavport, Fla., 1
A/SLMR 143 (1971)). Where probationary employees have a clear and
identifiable community of interest with other permanent employees
their inclusion in a bargaining unit is appropriate. See Dep't
of the Navy, Navy Exchange, Mavport, Fla., supra.
All sworn police officers, including sworn probationary
employees, are subject to the same chain of command and general
orders, have similar duties and work assignments, work the same
hours, are bound by the same personnel and other policies, and have
the same health, pension, and other benefits. See, e.g. Record
at II:385, 391-99, 406-07. In addition, there is no difference between
the authorities of a sworn probationary officer and those of other
sworn police officers. When a probationary employee graduates from
academic training and is duly sworn in as a U.S. Capitol Police
officer, "that employee on that particular day is, in fact, a police
officer and has the authority to make arrests, carry firearms, and
all that sort of thing." Record at II:398-99. These commonalities
demonstrate a clear community of interest with other sworn police
Moreover, the differences to which the Employing
Office points between sworn probationary officers and sworn non-probationary
officers do not affect this shared community of interest. Although
probationary officers are evaluated more frequently than non-probationary
officers, these evaluations use the same forms and are based on
the same criteria as those of other sworn officers. Record at II:402-403.
Although probationary officers may be dismissed without a statement
of reasons or any right of appeal, in practice probationary employees
are only dismissed for good cause like other non-probationary officers,
Record at II:373-374, 396, and the vast majority make satisfactory
progress through the probationary period. Record II:405. Therefore,
all sworn officers, probationary and others, share a clear and identifiable
community of interest.
In contrast, when probationary employees are
students going through their approximately twenty weeks of classroom
training, they do not have a community of interest with other police
officers. At that point, their duties are solely academic; they
do not participate in the regular police work of the Capitol Police;
and they do not exercise the authorities of police officers. Record
In sum, based on the evidence presented and
the pertinent legal authorities, the Board finds that a unit consisting
of all sworn police officers with the authority to carry a gun and
to make arrests is an appropriate unit for exclusive recognition
within the meaning of the statute. The Board further finds that
it is appropriate to include probationary officers in the unit only
upon their swearing-in, because it is only at that point that they
have the same community of interest as other police officers. In
light of the strong community of interest, and in the absence of
any suggestion in the record that this unit will hinder effective
dealings with and efficiency of the operations of the agency, the
Board concludes that the bargaining unit satisfies the three statutory
B. Statutory Exclusions
1. Sergeants and Special Technicians
Although none of the parties now seeks to include
sergeants or special technicians in the unit, there remains a fundamental
disagreement as to whether sergeants or special technicians are
supervisors, and are therefore statutorily excluded from the unit
under section 7112(b)(1) of title 5, as applied by the CAA. The
Employing Office established, without objection, that special technicians,
a category that is being phased out, have the same supervisory responsibilities
as sergeants and are their rank equivalents. Record at III:36-38.
The Board's conclusions as to sergeants therefore also apply to
the four special technicians. Thus, when the discussion refers to
sergeants, it should be understood to include special technicians
The Employing Office maintains that sergeants
are statutory supervisors and, therefore, must be excluded from
the unit. See Employing Office Post-Hearing Brief at 36;
Record at V:94. The FOP, although no longer seeking to include sergeants
in this unit, believes that sergeants are not supervisors within
the meaning of the statute. Record at V:94. Neither Petitioner nor
IUPA seeks to include sergeants in the unit, or takes a position
on the issue of whether or not they are supervisors. Id at
94-95. However, sergeants are the incumbents of a number of positions
for which the Employing Office seeks a statutory exclusion under
section 7112(b)(3), as applied by the CAA. In those cases, the Employing
Office relies as well on the theory that the incumbent sergeants
are excluded from the bargaining unit because they are supervisors.
The Board therefore reaches the issue of whether sergeants are supervisors
and finds that sergeants are supervisors within the meaning of the
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"
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 any one of the
supervisory criteria set forth in the statute to be found to be
a supervisor. See e.g., U.S. Dep't of the Navy, Portsmouth Naval
Shipyard, Portsmouth, N.H., 38 F.L.R.A. 764, 766, 768 (1990);
Veterans Admin. Medical Ctr., Allen Park, Mich., 35 F.L.R.A.
1206, 1211(1990). Further, an employee may be found to be a supervisor
when the employee effectively "recommends subordinates" for one
of the actions set forth in 5 U.S.C. § 7103(a)(10). See, e.g.,
Portsmouth Naval Shipyard, supra. Finally, an employee who
consistently exercises independent judgment in connection with the
exercise or recommendation of any one of the supervisory criteria
may be found to be a supervisor even if another individual also
exercises or makes recommendations concerning the same statutory
criterion. See, e.g., Veterans Admin. Medical Ctr., supra.
The record amply supports the conclusion that
sergeants are supervisors within the meaning of 5 U.S.C.§ 7103(a)(10),
as applied by the CAA. Sergeants of the Capitol Police consistently
use independent judgment and discretion in evaluating, assigning,
disciplining, recommending for promotion, demotion, and dismissal,
scheduling, adjusting grievances, suspending, and participating
in the hiring and promotion process of Capitol Police Officers.
See, e.g., Record at III:42-99.
For example, sergeants are the first line supervisors
for resolving a number of employee grievances. An employee grievance
will only go up the chain of command if a sergeant is unable to
resolve it. Record at II:343-44. Similarly, in the area of discipline,
sergeants have a wide degree of latitude and discretion. They may
issue anything from a verbal reprimand to a CP-535, which is a serious
personnel charge, depending on how severe the sergeant deems the
infraction. Any disciplinary action above a verbal reprimand becomes
part of the employee's personnel record. Record at II:320-328, II:333;
III:52-64. The sergeant conducts the investigations and interviews
witnesses, and the sergeant's investigatory findings are generally
not revisited by the sergeant's superiors. Record at II:331-33;
III:31-32, 59-61. The sergeant's recommendations as to level of
discipline are only rarely not followed by his or her superiors.
Record at III:94-95, 118-19. Sergeants similarly exercise independent
judgment in scheduling duty and granting leave. They administer
employee evaluations that can be the basis for transfer and promotion
decisions as well.
In view of these indicia of supervisory status,
the Board finds that sergeants are supervisors within the meaning
of 5 U.S.C. § 7103(a)(10), as applied by the CAA, and must, as a
statutory matter, be excluded from the unit under 5 U.S.C. § 7112(b)(1),
as applied by the CAA.
2. Employees of the Recruiting Section
of the Personnel Division
The Employing Office contends that six employees
-- five police officers (investigators) and one sergeant -- in the
Recruiting Section of the Personnel Division should be excluded
from the bargaining unit because they are "engaged in personnel
work in other than a purely clerical capacity," under 5 U.S.C. §
7112(b)(3), as applied by section 220(c)(1) of the CAA. The sergeant
is excluded from the bargaining unit on the basis that he is a supervisor
within the meaning of 5 U.S.C. § 7112(b)(1), as applied by the CAA,
but the status of the five other officers remains in dispute. The
Employing Office contends that, because these employees recruit
applicants for sworn and civilian positions, conduct background
investigations, and make hiring recommendations to management, their
work has a "direct impact on employment decisions made by the Department."
See Employing Office Post-Hearing Brief at 50-51. The Petitioner
and Intervenors disagree and argue that the recruit investigators
do not perform duties requiring exclusion from the bargaining unit.
See, e.g. IUPA Post-Hearing Brief at 9-10.
Employees "engaged in personnel work in other
than a purely clerical capacity" must be excluded from bargaining
units under 5 U.S.C. 7112(b)(3), as applied by the CAA, because
employees who perform work "relating directly to the personnel operations
of their own employing agency would be faced with a conflict of
interest between their jobs and union representation if included
in the unit. . . . " See Office of Personnel Management, 5
F.L.R.A. 238, 246 (1981). Recruit investigators who regularly exercise
independent discretion and judgment, which necessarily affects hiring
decisions and other personnel matters, must be excluded from the
unit. See, e.g., Dep't of Health and Human Services, Region
X, Seattle, Wash., 9 F.L.R.A. 518, 524-25 (1982) (employee
who worked with supervisors and management officials in recruitment
and selection process in which he helped screen applicants and made
effective recommendations found to be directly involved in performing
personnel work that may affect unit within meaning of §7112(b)(3));
see also, Penn. Air Nat'l Guard, 13 F.L.R.A. 538, 540 (1983)
(employee who assisted in recruitment by traveling to meet with
individuals with Hispanic backgrounds to interest them in joining
technician program was engaged in personnel work in other than purely
The record demonstrates that all of the recruit
investigators, including the polygraphers, conduct background investigations
of applicants for employment with the Capitol Police, and use independent
discretion to make determinative judgments as to the depth necessary
for their investigations. Record at IV:7-11, 48-50. Upon the discovery
of negative information, they may recommend termination of the investigation
prior to its completion, which usually results in an applicant not
receiving an offer of employment. Id. Such recommendations
are infrequently overturned. Id. at 12. In addition, the
investigator who administers polygraph tests performs an evaluation
of the polygraphs to determine the validity of information provided
to the Capitol Police. Id. at 22-23, 48-50. Such evaluations
influence the decision to investigate certain areas further, and
potentially may make an investigator stop an investigation altogether.
Id. at 22-23. Because the recruit investigators independently
determine how to conduct their background investigations, evaluate
the results, and effectively recommend that some investigations
be terminated prior to completion, the Board finds that the officers
who function as recruit investigators are engaged in internal personnel
work within the meaning of the statute and are therefore excluded
from the unit.
3. Officer in the Vehicle Maintenance
Section of the Property Management Division
The parties also dispute the status of Officer
Mutter, an officer in the vehicle maintenance section of the Property
Management Division. The Employing Office contends that Officer
Mutter assigns work duties and exercises other supervisory responsibilities
in areas including discipline, grievances, and performance recommendations
including position upgrades and awards. The Employing Office contends
that he should therefore be excluded from the unit because he is
a supervisor. FOP contends that there is no evidence on the record
to support the Employing Office's contention that Officer Mutter
consistently exercises independent judgment with regard to any of
the indicia of supervisory authority. See FOP Post-Hearing
Brief at 14-15.
As noted above, a "supervisor" within the meaning
of section 7103(a)(10) is an employee "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 such authority is not merely routine or clerical
in nature but requires the consistent exercise of independent judgment."
To satisfy this definition, it is not enough that the employee have
the authority to take or effectively to recommend any of the listed
actions; the employee must also be found to "exercise" such authority
in a manner that "requires the consistent exercise of independent
judgment." See Veterans Admin. Medical Ctr., Allen Park, Mich.,
34 F.L.R.A. 423, 426 (1990) (foreman's assignment of work that
is "primarily routine in nature" does not support a finding that
the foreman is a supervisor).
From the record, it is apparent that Officer
Mutter has no independent supervisory authority. Record at III:214.
His responsibilities with regard to the garage mechanics to whom
he assigns work are more analogous to those of a lead person than
a supervisor. Accordingly, Officer Mutter will not be excluded from
the bargaining unit as a supervisor.
4. Employees in the Training Division
The parties also dispute the status of eight
officers below the rank of sergeant and seven sergeants in the Training
Division who create and develop internal lesson plans and train
employees. See Employing Office Post-Hearing Brief at
25. The training personnel at the rank of sergeant are
excluded from the unit as supervisors, but the status of the eight
officers below the rank of sergeant remains in dispute. The Employing
Office contends that these Training Division employees should be
excluded from the bargaining unit because they "perform non-routine
work and exercise independent judgment and discretion in making
recommendations to management on training policies and other personnel
actions," and because the instructors "plainly have an inherent
conflict of interest between union affiliation and job responsibilities."
Id. at 52. IUPA contends that the employer has not come
forth with evidence sufficient to support the exclusion. See
IUPA Post-Hearing Brief at 10-12.
As discussed above, a position is excluded under
section 7112(b)(3) when the character and extent of involvement
of the employee in personnel work is more than clerical in nature
and the duties of the position in question are performed in a non-routine
manner or are of such a nature as to create a conflict of interest
between the incumbent's union affiliation and job duties. Trainers
are excluded under this standard when they rate the performance
of other employees in the unit who participate in the training program,
or review, analyze, or make recommendations with regard to individual
personnel actions. See Tick Eradication Program, Veterinary
Serv. Animal and Plant Health Inspection Serv. USDA, 15 F.L.R.A.
250, 252 (1984); Health and Human Servs., Region X, Seattle,
Wash., 9 F.L.R.A. 518, 522 (1984). Trainers may also be excluded
if they conduct training sessions for supervisors on personnel-related
matters, see Defense Mapping Agency, Hydrographic/Topographic
Ctr., Providence Field Office, 13 F.L.R.A. 407 (1983), or if
the training work would create a conflict of interest between their
jobs and union representation. See U.S. Dep't of the Army Headquarters.
, 101st Airborne Div. Fort Campbell, Ky., 36 F.L.R.A. 598,
602 (1990); Defense Mapping Agency, supra. However, trainers
who have only a superficial involvement in course development, and
who have no authority to perform employee evaluations or otherwise
make recommendations about individual personnel actions, have been
included in bargaining units. See Tick Eradication Program,
supra; Health and Human Servs. , supra.
The Training Division interprets the policies
and procedures of the Capitol Police, develops and teaches courses
of instruction for police officers from recruits to supervisors,
and makes recommendations to management regarding training programs.
Record at III:164-167, 203. However, the record does not provide
a basis for determining which of the particular officers below the
rank of sergeant, if any, exercises substantial discretion in making
recommendations regarding training, or which, if any, of these disputed
training instructors performs employee evaluations or otherwise
makes recommendations about individual personnel actions. Moreover,
while the Training Division provides training to supervisors and
managers and includes personnel issues in the training program,
Record at III:198, 204, the record affords no basis for concluding
which, if any, particular officers in the Training Division below
the rank of sergeant has significant responsibilities for such training.
Indeed, the record suggests that training sessions on personnel-related
and other specialized matters might be taught by the sergeants and
lieutenants in the Division or by experts from outside of the Division.
Record at III:198-199, 203-204.
The Training Division is diverse -- divided
into separate sections for entry-level and in-service training and
for firearms training -- and is heavily staffed with supervisory
personnel at the rank of sergeant and higher. Record at III:195-196.
Statements concluding generally that upper management grants deference
to the recommendations of the Training Department on personnel-related
subjects do not establish which, if any, of the eight officers below
the rank of sergeant, whose status is in dispute, performs these
functions such that he or she is engaged in personnel work in other
than a purely clerical capacity within the meaning of section 7112(b)(3),
as applied by the CAA.
Despite the best efforts of the parties and
the pre-election investigative hearing officer to create a complete
record, there is insufficient evidence in the record to determine
the status of each of the individual non-supervisory officers in
the training division. In view of the small number of positions
involved relative to the size of the unit, resolution of the status
of each at this point is not essential to the election process.
See, e.g., Dep 't of the Air Force HQ, 24th Combat Support
Group (TAC), Panama Activity, 7 F.L.R.A. 499, 508 n.
6 (1981); Veterans Admin. Medical Ctr., Brooklyn, N.Y., 8
F.L.R.A. 289, 295 n. 6 (1982). In the event the parties
cannot agree upon the appropriate status of the employees in question
in light of the guidance set forth above, the Board's regulations
governing the election process allow a challenge to any ballot cast,
(§ 2422.24, 142 Cong. Rec. S12062, S12068 (daily ed. Oct. 1, 1996)),
and permit a petition for clarification in the event a determination
by the Board should subsequently become necessary. Id at § 2422.1,
142 Cong. Rec. at S12065. Under such circumstances, if a labor organization
is certified as the exclusive representative of an appropriate unit,
the incumbents of the specific classification at issue here will
neither be deemed to be included in nor deemed to be excluded from
the bargaining unit pending agreement by the parties or determination
through a unit clarification proceeding.
5. Officers in the Planning Section
of the Planning and Inspection Division
The Employing Office also contends that the
four officers within the Planning Section of the Planning and Inspection
Division should be excluded from the unit because their responsibilities
as staff writers involve internal personnel work within the meaning
of 5 U.S.C. § 7112(b)(3), as applied by section 220(c)(1) of the
CAA. See Employing Office Post-Hearing Brief at 49-50.
The Petitioner and Intervenors disagree. IUPA contends that the
writers do not exercise independent judgment and discretion in the
exercise of their duties, but merely carry out the instructions
of their superiors, and should therefore be included in the unit.
See IUPA Post-Hearing Brief at 12-13.
Section 7112(b)(3), as applied by the CAA, provides
that a unit is not appropriate if it includes employees "engaged
in personnel work in other than a purely clerical capacity." An
employee is excluded under section 7112(b)(3) when the character
and extent of his or her involvement in personnel work is more than
clerical in nature and the duties of the position are performed
in a non-routine manner or are of such a nature as to create a conflict
of interest between the employee's union affiliation and job duties.
See U.S. Dep't of the Army Headquarters, 101st Airborne Div.
Fort Campbell, Ky., 36 F.L.R.A. 598, 602 (1990); Dep 't
of the Treasury, Internal Revenue Serv., Washington, D.C. and Internal
Revenue Serv., Cincinnati District, Cincinnati, Ohio, 36 F.L.R.A.
138, 144 (1990). Researchers have been excluded from a bargaining
unit under this standard where their functions involved internal
personnel work, e.g., where they "draft and analyze personnel
programs affecting the bargaining unit and make recommendations
to management concerning such programs." Health and Human Serv.,
Region X, Seattle, Wash., 9 F.L.R.A. 518, 523. Researchers
have also been excluded under this standard where their recommendations
"have a significant effect on personnel decisions" or "can have
a direct impact on the elimination of jobs, the creation of positions
and the overall work environment with regard to the bargaining unit."
Fort Campbell, supra at 603-604.
The Planning and Inspection Division is a part
of the Administrative Services Bureau, which provides personnel
and ancillary administrative support services to the Capitol Police.
Record at III:153-154. The planning group is primarily responsible
for recommending policy changes on general orders and other procedures
and policies. Record at III:154-155, 159-160. The record suggests,
however, that the responsibilities of the planning section may include
development of personnel policies: Q: "Do they develop police policies,
or do they develop personnel policies or both?" A: "Both." Record
at III:204. The deference afforded recommendations of the planning
section demonstrates that independent judgment and discretion are
exercised at some level below upper management.
However, the testimony describes the work of
the planning section in general terms. There is no discussion of
how the responsibilities for personnel-related work are allocated
among the various personnel in the section. The record is also silent
regarding which, if any, of the four writers makes recommendations
that have a significant effect on personnel-related decisions or
an impact on the work environment.
The testimony therefore does not provide a basis
for ascertaining which, if any, of the four writers on the planning
staff meets the statutory criteria for exclusion under section 7112(b)(3),
as applied by the CAA. Accordingly, as explained in the Board's
discussion of officers in the training division, supra, resolution
of the status of each of the planning officers at this point is
not essential to the election process. Under these circumstances,
if a labor organization is certified as the exclusive representative
of an appropriate unit, the incumbents of the specific classification
at issue here will neither be deemed to be included in nor deemed
to be excluded from the bargaining unit pending agreement by the
parties or determination through a unit clarification proceeding.
6. Employees Excluded by Stipulation
The parties stipulated to the exclusion of the
following categories of employees: all officers in the immediate
Office of the Chief, all officers in the Office of the General Counsel,
all officers in the Office of Financial Management, all officers
in the Public Information Office, all officers in the Internal Affairs
Division, the five permanent assistants to the Watch Commanders,
and any individual who serves as an assistant to the Assistant Chief
or assistant to a Bureau Commander. Accordingly, they are excluded
from the unit.
7. Part-Time Assistants to the Watch
Based on the record, it appears that the status
of part-time assistants to the Watch Commanders is still in contention.
Record at V:96-97. Although the parties agreed by stipulation to
exclude the full-time assistants to the Watch Commanders, no decision
was reached with respect to the part-time assistants to the Watch
Commanders and little or no evidence was presented as to their functions
or duties. However, since there is nothing in the record to suggest
that when they are functioning in the capacity of assistants to
the Watch Commanders, the duties of the part-time assistants differ
significantly from those of the full-time assistants, the Board
will exclude these employees as supervisors.
C. Other Issues Raised
by the Parties
1. Employing Office's Request for a
Remand to Develop Record Evidence Supporting Exclusions under Section
In its post hearing-brief, the Employing Office
has asked the Board to remand the case to allow the Employing Office
now to develop support in the record for its contention that certain
unidentified employees of the Capitol Police should be excluded
from the unit because they are employees engaged in "national security
activities" within the meaning of section 7112(b)(6) of title 5,
as applied by section 220(c)(1) of the CAA. See Employing
Office Post-Hearing Brief at 29. The Employing Office further requests
that such evidence be received in a confidential hearing, and that
the Board promulgate procedural rules under section 304 of the CAA
to govern the conduct of the requested confidential hearing.
See id. at 30. The Board has already denied the request for
a confidential hearing and for special procedural rules to govern
the receipt of such evidence. See Orders of December 12,
1996 and February 5, 1997. Moreover, the record reflects that the
pre-election investigatory hearing officer offered the Employing
Office numerous opportunities to present any such section 7112(b)(6)
evidence to the Board (including appropriate in camera, under seal
presentations); and the Employing Office apparently chose not to
do so. Accordingly, the Board declines to reopen the record.
The Board notes that pursuant to the exercise
of its executive authorities under section 7103(b) of title 5, as
applied by section 220 of the CAA, the Board has taken evidence
in a confidential ex parte proceeding respecting the need
for a national security exclusion under that statutory provision.
As a result of that proceeding, the Board has excluded from coverage
on national security grounds a number of employees of the Capitol
Police -- the employees of the Physical Security Division of the
Office of the Chief as well as the employees of the Protective Intelligence
Division, the Technical Security Division, and the Dignitary Protection
Division (with the exception of the Reserve Corps of such division)
of the Protective Services Bureau. See Order 71O3(b))-1 (January
31, 1997). That confidential, ex parte proceeding is in contrast
to national security exclusions under section 7112(b)(6), which
are determined in the same manner as all other exclusions under
section 7112(b) of title 5, as applied by the CAA -- as part of
the determination of the appropriate unit, based upon evidence submitted
at a pre-election investigatory hearing.
2. Allegation of Bias in the Conduct
of the Pre-election Investigatory Hearing
In its post-hearing brief the Employing Office
contends that the alleged bias of Deputy Executive Director Talkin
against the Employing Office tainted the pre-election investigatory
hearing. The Employing Office asks for both a remand to develop
the record anew before a supposedly "neutral" fact-finder and a
ruling that Deputy Executive Director Talkin not be designated to
conduct any parts of the case. Upon full and careful review of the
record, the Board finds that these charges are without merit and
The Employing Office's contention that the Deputy
Executive Director had a "disregard for the Employing Office's position
regarding the security interest in this case" amounts to a disagreement
with the Deputy Executive Director's administration of the hearing.
In fact, the record demonstrates that the Deputy Executive Director
made strenuous efforts to accommodate the Employing Office's concerns.
That she did not acquiesce in all of the Employing Office's demands
is not evidence of bias, but rather is an indication of her control
over and neutrality in the conduct of the proceedings.
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 police officers, including probationary
employees from the time that they are sworn in as officers of
the United States Capitol Police, excluding the employees
of the Physical Security Division of the Office of the Chief the
employees of the Protective Intelligence Division, the Technical
Security Division, and the Dignitary Protection Division (with
the exception of the Reserve Corps of such division) of the Protective
Services Bureau; all supervisors, including officers at and above
the rank of sergeant and special technician; confidential employees;
and employees engaged in personnel work in other than a purely
clerical capacity; and all officers in the immediate office of
the Chief, all officers in the Office of the General Counsel,
all officers in the Office of Financial Management, all officers
in the Public Information Office, all officers in the Internal
Affairs Division, all assistants to the watch commanders, and
any individual who serves as an assistant to the Assistant Chief
or assistant to a Bureau Commander.
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 Teamsters Local Union No.246, International Brotherhood of Teamsters;
the Fraternal Order of Police D.C. Lodge No.1, U.S. Capitol Police
Labor Committee; the International Union of Police Associations,
AFL-CIO and its local 1776; or no labor organization.
Issued, Washington, D.C., February 24, 1997
I certify that I have served the persons listed
below a copy of the attached Decision and Direction of Election
by Hand Delivery:
John T. Caulfield, Esq.
U.S. Capitol Police
119 D Street, N.E.
Washington, DC 20510
Jeffrey C. Poll, Esq.
Office of House Employment Counsel
433 Cannon House Office Building
Washington, DC 20515-5532
Jean Manning, Esq.
Senate Chief Counsel for Employment
103 Senate Hart Office Building
Washington, DC 20510-7130
Geraldine Gennet, Esq.
Acting General Counsel
U.S. House of Representatives
219 Cannon House Office Building
Washington, DC 20515
Elizabeth J. Head, Esq.
Richard W. Gibson, Esq.
John R. Mooney, Esq.
Mooney, Green, Baker, Gibbon & Saindon, P.C.
The Colorado Building, Suite 700
1341 G Street, N.W.
Washington, DC 20005-3105
Stephen G. De Nigris, Esq.
Counsel for the Fraternal Order of Police
Washington, DC 20037-1524
Michael T. Leibig, Esq.
Zwerdling, Paul, Leibig, Kahn Thompson & Wolly, P.C.
City Square Building, Suite 200
1060 Page Avenue
Fairfax, VA 22030
Aaron Nisenson, Esq.
Counsel for the International Union of Police Associations, AFL-CIO
1421 Prince Street, Suite 330
Alexandria, VA 22314
Dated this 5th day of February 1997, at Washington,