NCUA Appealing Examiners' Eligibility for Union; NTEU Response Claims NCUA has No Basis

ALEXANDRIA, Va.-NCUA and the National Treasury Employees Union continue to duke it out over who is and is not eligible for the potential union at the agency. NCUA filed an appeal with the Federal Labor Relations Authority of a regional director’s decision to qualify credit union examiners as part of the potential bargaining unit Feb. 36. NTEU, who has been working to organize the NCUA’s workers, replied on March 8. NCUA is arguing that field examiners are “management officials and should be excluded from eligibility in the bargaining unit. The agency contends that FLRA Regional Director Gerald M. Cole failed to apply established law and that he “committed clear and prejudicial errors,” according to NCUA’s appeal. NTEU has been trying to organize a union at NCUA for about a year now. The group has successfully organized unions at other agencies, including the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency. The union received more than the requisite number of required signatures on a petition to hold a vote, which prompted NCUA’s appeal. “NTEU’s chances and the employee’s chances are very good,” NTEU CEO Colleen Kelley told Credit Union Times. She added that it is disappointing the agency is using these delaying tactics. “There is no way half the workforce are management officials that make policy,” she said. Part of the regional director’s decision was based on the finding that examiners “implement and effectuate” agency policy, but NCUA’s position is that they go far beyond that. “Relying primarily on the FLRA Regional Director’s own findings of fact, we apply the body of relevant, established case law to demonstrate that, contrary to his conclusion, the functions of Examiners go beyond simply implementing and effectuating policy,” the appeal brief read. “Their functions, undertaken with little supervisory oversight, collectively set the Agency’s supervisory agenda and drive budget and resource allocations at the Agency’s highest levels. It is in that regard that Examiners influence, decide and bring about the Agency’s supervisory plans and courses of action, thus satisfying the FLRA’s test for determining who is a management official.” On the charge that Cole failed to apply established law, NCUA cited Dept. of the Navy, Automatic Data Processing Selection Office, which created the test for determining “management officials.” From this FLRA has developed criteria for determining who is management and who is not. 1) Whether the incumbent makes independent decisions with broad agency guidelines; 2) The degree to which the incumbent’s actions are subject to prior supervisory approval or subsequent review, other than for purposes of checking for consistency with established programs; 3) Whether the incumbent’s decisions carry considerable weight, are accepted as authoritative and are frequently implemented; 4) Whether the incumbent speaks for the agency and, by his or her actions, binds it resources; and 5) The degree to which the incumbent’s decisions committee the agency to a particular course of action without supervisory approval. NCUA’s appeal argues that the regional director only addressed “the degree of supervisory review” standard, which was misapplied. NCUA argues that examiner decisions in credit unions are rarely ever reviewed and even more rarely overturned. The CAMEL rating is typically given to the credit union before anyone else, including a supervisor, sees it. Though in theory an examiners decision may be reviewed, it rarely is in practice, NCUA stated. Generally, NCUA’s appeal states that Cole minimized examiners’ roles and that, through the risk-based examination and CAMEL rating system, the examiners do commit agency resources. NCUA also argues that its problem case officers, senior financial analysts, risk/loss officers, and realty specialist also meet the definition of “management official,” but they are far fewer in number than examiners. According to NTEU’s filing, “The Application for Review in sum is no more than a lengthy expression of mere disagreement with Authority precedent and with the Regional Director’s factual findings and rulings which are based on record evidence and have not been shown to be clearly erroneous.Application of the above standards to the instant case.leads ineluctably to the conclusion that the NCUA’s Application for Review falls woefully short of stating grounds for review and should be denied.” After the appeal, which Kelley said NTEU fully expected, it could be June or even July before the employees have a chance to vote. [email protected]