Postal Service

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and American Postal Workers Union, AFL-CIO, Petitioner. Case 5- RC-9918(P) September 29, 1978 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Henry Quinn Anderson on December 21, 1976, and thereafter continued on January 17, 18, 19, 21, and 25, 1977, in Washington, D.C. Pursuant to Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, this case was transferred by direction of the Regional Director for Region 5 to the National Labor Relations Board for decision. Thereafter, the Em- ployer and the Petitioner each filed a brief. Subse- quently, the Petitioner filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The Postal Reorganization Act of 1970 directs the Board to exercise jurisdiction over the operations of the Employer. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Employer, the United States Postal Ser- vice, operates a Research and Development Depart- ment (R&D) in Rockville, Maryland, approximately 15 miles from the Employer's national headquarters in Washington, D.C. The majority of the employees petitioned for are located at 11711 Parklawn Drive, Rockville and the remainder are located at nearby Executive Drive. The Petitioner seeks a unit consist- The Employer also alleged that the showing of interest was tainted and filed a request for an administrative investigation. While a preliminary investigation disclosed that most of the cards were solicited by Jones and Jarrell, allegedly a supervisor and a manager, respectively, their status is the same as that of about 40 other disputed individuals. As the parties agreed that all these individuals, including Jones and Jarrell, should be treated the 232 NLRB No. 69 ing of all the Employer's R&D employees located in Rockville. There are no R&D employees, as such, in the District of Columbia. The Employer first contends that the unit sought is too narrow in scope and is therefore inappropriate. In this regard, the Employer contends that in order for the unit to be appropriate, it must also include all headquarters employees located at L'Enfant Plaza in Washington, D.C. The Employer further contends that inasmuch as R&D employees are "part" of the national headquarters that has overall administration and policymaking functions for the Postal Service, they are precluded from having collective-bargaining rights under the Act. It also contends that the petition should be dismissed because the Petitioner's reason for limiting the unit to R&D employees is that it is based on the extent of organization among the employees. In the event, however, that the Board finds that the petitioned-for unit is appropriate, the Employer contends that certain employees must be excluded from the unit because they are either supervisory, managerial, confidential, or professional employees.' The basic function of R&D is the development of systems for improving postal operation. It performs research and tests on inks, paper, fluorescent materials, and other products used by the Service. It is also involved in the development, design, and testing of new equipment, as well as the conceptualiz- ing and design of mail handling machinery and the improvement of existing machinery. In order to accomplish its mission, the R&D department em- ploys a staff which consists of engineers, technicians, mechanics, computer programmers and operators, chemists, machinists, woodworkers, and employees in various office jobs. From the standpoint of organizational control, as is the situation with the entire Postal Service, labor relations policies concerning wages, hours, and working conditions are highly centralized in an employee and labor relations group under a Senior Assistant Postmaster General. This is because the Employer's operation is national in scope and requires close overall control. Thus, this central office sets the wage policy for all of the Postal Service, establishes employee position classifications, position descriptions, etc. Fringe benefits for the R&D employees are the same as they are for all other Postal employees. Building maintenance and janito- rial services for the R&D department are provided by the Office of Headquarters Services of Procure- same, the Hearing Officer in his report stated that a decision as to the status of Jones and Jarrell should be made on the basis of the record. For the reasons set forth below, we find that the disputed individuals, including Jones and Jarrell, are neither supervisory nor managerial, and, accordingly, we are satisfied that Petitioner's showing of interest was proper. 556 UNITED STATES POSTAL SERVICE ment and Supply which also provides such services for the L'Enfant Plaza building. On the other hand, however, despite the centraliza- tion made necessary by the unique situation present- ed by the Postal Service, the record reveals that a substantial degree of autonomy exists in the day-to- day operations of the R&D department. Thus, R&D is under the direction of an Assistant Postmaster General (APMG) who, it appears, is located in Rockville. The APMG and his assistants have the authority to discipline, hire, evaluate, and promote employees. The APMG who runs the R&D depart- ment also assigns and reassigns employees, adminis- ters a leave program, and makes decisions on the administration of the Privacy Act and disclosure of personnel information. He posts vacancies which have occurred in the department. The R&D depart- ment head is also responsible for detailing the use of tools and formulating safety policies. Thus, despite the administrative links with Postal Service head- quarters, the R&D department has a unique function not duplicated at headquarters or elsewhere in the system, and operates as an entity with significant day-to-day autonomy. In addition the R&D depart- ment is located 15 miles from the headquarters location. Thus, we conclude that R&D is not so closely connected with headquarters that it cannot stand alone as a separate appropriate bargaining unit. Another factor which we consider in making a unit determination is the frequency of interchange among employees of the various facilities. The record fails to demonstrate that the Emloyer has any specific policy requiring the frequent transfer of employees from one location to another and the instances in which employees have transferred to and from L'Enfant Plaza to R&D at Rockville are inconsequential. We conclude that the Employer's employees interchange or transfer from one facility to the other does not in these circumstances support the contention that only a unit of all Postal Service headquarters employees is appropriate. Accordingly, after careful review of all the foregoing we conclude that the employees at Rockville who comprise the R&D department constitute an appropriate unit.2 2 At the hearing the Employer stated that the petitioned-for employees have no collective-bargaining rights. In its brief, it states that during the legislative sessions regarding the scope of the Postal Reorganization Act, the Senate Post Office and Civil Service Committee stated: The committee does not recommend a system of collective bargaining for supervisory personnel; postmasters or administrative employees in the headquarters or regional offices of the Postal Service .... It therefore argues that R&D employees, as a part of headquarters, are administrative employees. Thus, the Employer argues that the legislative Other issues remain concerning the composition of the unit we have found appropriate and the place- ment of certain individuals. Engineers acting as program managers: The Peti- tioner would include the engineers who perform tasks as program managers or team leaders. The Employer takes the position that these individuals are managerial employees and should be excluded from the unit. Thus, the Employer states that their managerial status comes from their participating in statements of work, evaluations of contractors' proposals, and monitoring of contractors' perfor- mance. It appears that the first step in effectuating a project is a budget request by an office director. Next comes a statement which provides a contractor with the details of his work and the schedule within which it is to be performed. While the program managers have some input in this process this input is of a technical nature. When a statement is prepared it is reviewed by the director of the office in which it was developed. Then the statement and information are circulated among potential contractors, and propos- als are received from interested companies. The program manager then must evaluate any proposed changes in the contract. The record indicates, however, that this evaluation is limited to areas of technical expertise for the purposes of making technical comments and does not include any evaluation of cost. After a contract is let, the program manager monitors the contractor basically to ascertain how the contractor is progressing and reports such findings to higher level personnel in the R&D department. While the program manager may make recommendations, the contracting officer is the only person with the authority to change a contract with regard to content, scope, cost, and schedule. Contrary to the Employer's contentions, we find that the program managers are not managerial employees and therefore may be included in the unit. The Board has defined managerial employees as those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer, and those who have discretion in the performance of their jobs indepen- history of the Postal Reorganization Act requires that the petition be dismissed. We disagree. It is obvious that the language relied on by the Employer and other language in the Postal Reorganization Act in the same vein referred to high level supervisory and administrative personnel and not to rank-and-file employees. Accordingly, inasmuch as the R&D employees are otherwise ineligible for collective-bargaining rights, we find no merit to the Employer's contention. 557 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent of their employer's established policy."3 We do not view the functions of the program managers as falling within that definition. The record reveals that the program managers have only technical input in the statements of work and make only comments and recommendations, which must finally be approved by higher personnel regarding proposed technical changes in a contract proposal. Nor can they themselves modify or terminate a contract in progress. Accordingly, we conclude that they are not managerial employees. Team leaders: The Employer takes the position that certain program managers and other named individ- uals frequently act as team leaders and on that basis should be deemed supervisors within the meaning of the Act. The Petitioner takes the position that these individuals should be included in the unit. In its brief, the Employer states that the designa- tion "team leader" is an informal concept as there is no such title or position description. It contends, however, that the team leader's supervisory functions begin when a form RD-2 is prepared. This form specifies the objectives of the project, the exact number of man-hours planned, and a detailed statement of the resources required over the life of the project. The parties put on a great deal of testimony regarding the alleged supervisory functions of pro- gram managers while performing as team leaders. Thus, the team leader sets the schedule for the completion of the work and assigns individual team members to various tasks. In this capacity, the team leaders perform some of the technical aspects of the work as well as spending some time in planning assignments, scheduling work, and reviewing the performance of other team members. From the foregoing, we are not persuaded that these individuals while acting as team leaders possess the true supervisory authority as envisioned by Section 2(11) of the Act to require their exclusion from the unit. Thus, while in the capacity as team leaders they exercise a certain amount of discretion and direction in assigning work, that discretion and direction is based upon their technical competence. They are actually providing professional direction and coordination for other professional engineers. Likewise, their assignment and direction of these other team members is consistent with overall management policy. Additionally, the record fails to demonstrate that these individuals have authority to 3 See General Dynamics Corporation, Convair Aerospace Division, San Diego Operations, 213 NLRB 851, 857 (1974), citing Palace Laundry Dry Cleaning Corporation, 75 NLRB 320 (1947), and Eastern Camera and Photo Corp., 140 NLRB 569 (1963). For current judicial approval of the definition see N.L. R.B. v. Bell Aerospace Company, Division of Textron, Inc., 416 U.S. 267 (1974). 4 See San Diego Transit Corporation, 182 NLRB 428 (1970): access to take personnel action. They do not hire, fire, or make formal evaluations of the performance of other team members. When a team leader is dissatisifed with the performance of a team member, he must report this to the branch manager who alone has the power to discipline or remove a member from a team. Accordingly, we conclude that these individuals are not supervisors within the meaning of the Act. The Petitioner would also include in the unit certain secretaries employed in the R&D depart- ment. The Employer contends that the secretaries are confidential employees and should be excluded from the unit on that basis. Thus, the Employer argues that under the standards set in the Postal Reorgani- zation Act, any employee who performs any person- nel work of a confidential nature should not be included in a collective-bargaining unit. In this regard the Employer contends that since these secretaries type merit evaluations and other person- nel documents, they must be excluded from the unit. The record does not demonstrate, however, that these secretaries have any input into the substantive creation of documents relating to merit evaluations, disciplinary actions, or related activities. Nor does it appear that these secretaries have access to labor relations policy data. In these circumstances, we find that they are not confidential employees. 4 The requested unit contains several employee catagories which are admitted to be professional. However, the Petitioner concedes that these employ- ees must be afforded their rights as set forth in 39 U.S.C. 1202(3) which is analagous to Section 9(b) of the Act. Thus, because of Section 9(bX)() of the Act, the Board is prohibited from including professional employees in a unit with employees who are not professional, unless a majority of the professional employees vote for inclusion in such a unit. To carry out the statutory requirement, the Board has adopted a special type of self-determination procedure in such an election known as a Sonotone election.5 Under this procedure a separate voting group encompassing all professionals would elect whether to constitute a separate appropriate bargaining unit or be included in the larger unit of nonprofessional employees. As we construe the Petitioner's brief, it requests that the professional employees be permitted to vote separately on the question of their inclusion within the unit of nonprofessional employees, as well as on the question of their desire to be represented by it. personnel records does not constitute a secretary a confidential employee as defined in The B. F. Goodrich Company, 115 NLRB 722, 724 (1956), which is limited to "those employees who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations." 5 See Sonotone Corporation, 90 NLRB 1236 (1950). 558 UNITED STATES POSTAL SERVICE The parties agree and the record shows that the professional employees maintain a close working relationship with other employees at the develop- ment center while working toward a common goal. Accordingly, we find that all professional employees constitute a separate voting group which, depending on the outcome of the election, may constitute either a separate appropriate bargaining unit, or be includ- ed in the unit with other employees. 6 We therefore find that the following employees may constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed at the Employer's Research and Development Department in Rock- ville, Maryland, excluding confidential employ- ees, guards, and supervisors as defined in the Act. The unit set out above includes professional and nonprofessional employees. However, as noted above, the Board is prohibited by Section 9(b)(l) of the Act from including professional employees in a unit with employees who are not professionals unless a majority of the professional employees vote for inclusion in such a unit. Accordingly, we must ascertain the desires of the professional employees as to their inclusion in the unit with nonprofessional employees. We shall therefore direct separate elections in the following voting groups: Voting Group (a): All employees employed by the Employer at its Research and Development Department in Rockville, Maryland, excluding all confidential employees, professional employees, guards, and supervisors as defined in the Act. Voting Group (b).' All professional employees employed by the Employer at its Research and Development Department in Rockville, Mary- land, excluding all other employees, guards, and supervisors as defined in the Act. The employees in the nonprofessional voting group (a) will be polled to determine whether or not they wish to be represented by American Postal Workers Union, AFL-CIO. The employees in the professional voting group (b) will be asked two questions on their ballot: (1) Do you desire that the professional employ- ees be included in a unit composed of all professional employees and nonprofessional em- The parties are in dispute over the status of the operations research analyst. We shall permit him to vote subject to challenge inasmuch as the record is insufficient to establish his status as a professional. ployees of the Employer for the purposes of collective bargaining? (2) Do you desire to be represented for the purposes of collective bargaining by American Postal Workers Union, AFL-CIO, or by no union? If a majority of the professional employees in vtoing group (b) vote "yes" to the first question, indicating their wish to be included in the unit with nonprofessional employees, they will be so included. Their vote on the second question will then be counted together with the votes of the nonprofession- al voting group (a) to determine whether or not the employees in a combined professional and nonpro- fessional unit wish to be represented by the Union. If, on the other hand, a majority of the professional employees in voting group (b) vote against such inclusion, they will not be included with the nonprofessional employees. Their votes on the second question will then be separately counted to determine whether or not they wish to be represented by the Union. Our unit determination is based, in part, then, upon the results of the election among the profes- sional employees. However, we now make the following findings with regard to the appropriate unit: 1. If a majority of the professional employees vote for inclusion in the unit with nonprofessional employees, we find that the following will constitute a unit appropriate for purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All employees employed by the Employer at its Research and Development Department in Rock- ville, Maryland, excluding all confidential em- ployees, guards, and supervisors as defined in the Act. 2. If a majority of the professional employees do not vote for inclusion in the unit with nonprofession- al employees, but do vote for representation apart from them, we find that the following two groups of employees will constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: (a) All employees employed at the Employer at its Research and Development Department in Rockville, Maryland, excluding all confidential employees, professional employees, guards, and supervisors as defined in the Act. (b) All professional employees employed by the Employer at its Research and Development 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Department in Rockville, Maryland, excluding all other employees, guards, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] 560