Postal Service

National Labor Relations Board - Board Decisions

Sep 29, 1977

232 N.L.R.B. 556 (N.L.R.B. 1977)

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