750 F.2d 1266 (5th Cir. 1985), 83-2055, Lewis v. N.L.R.B.

Docket Nº:83-2055.
Citation:750 F.2d 1266
Party Name:Donald R. LEWIS, for himself and all others similarly situated, Plaintiff-Appellant, v. NATIONAL LABOR RELATIONS BOARD, et al., Defendants-Appellees.
Case Date:January 18, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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750 F.2d 1266 (5th Cir. 1985)

Donald R. LEWIS, for himself and all others similarly

situated, Plaintiff-Appellant,


NATIONAL LABOR RELATIONS BOARD, et al., Defendants-Appellees.

No. 83-2055.

United States Court of Appeals, Fifth Circuit

January 18, 1985

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Charles Stephen Ralston, Gail J. Wright, Jack Greenberg, New York City, Mark T. McDonald, Houston, Tex., for plaintiff-appellant.

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Daniel K. Hedges, U.S. Atty., James R. Gough, Javier Aguilar, C.J. Calnan, Asst. U.S. Attys., Houston, Tex., for defendants-appellees.

Appeals from the United States District Court for the Southern District of Texas.

Before GARZA, REAVLEY, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

This is an appeal from a judgment rendered in favor of the employer in a class action brought under Title VII, 42 U.S.C. Sec. 2000e et seq. Plaintiffs-appellants challenge the promotion practices for field examiners and field attorneys in the regional offices of the National Labor Relations Board (NLRB). After a lengthy trial, the district court entered judgment against the plaintiffs on both the class and individual claims. The district court also awarded costs to the defendants. We affirm the judgment against the plaintiffs on both the class and individual claims but remand on the award of costs to the defendants.



A. The Parties

Donald R. Lewis, the named plaintiff, has been employed since 1971 as a field examiner in the NLRB's regional office in Houston, Texas. The defendant is the NLRB. The class which the named plaintiff represents consists of a class of:

Past, present and future black field examiners and attorneys throughout all of the NLRB Regions within the United States who could have brought a timely administrative claim on the date the Plaintiff brought his claim.

Findings of Fact at I. The court defined the class temporally to include only those persons who could have brought an administrative claim within thirty days of the date Lewis brought his claim, which was on September 2, 1975. The district court also restricted the class to persons employed as of December 31, 1980.

B. The Organization of the NLRB

The NLRB is a federal agency established in 1935, which is charged with the duty of enforcing the National Labor Relations Act. The NLRB is composed of a five member Board, a General Counsel, and thirty-three regional offices. At the time this litigation commenced, these thirty-three regional offices employed approximately 1,800 persons.

The office of the General Counsel is divided into four divisions. The Division of Operations Management manages the regional field offices for the General Counsel. The Operations staff is divided into six districts, each of which is headed by an Assistant General Counsel. Each district oversees five to six of the regional field offices.

Each regional office is headed by a regional director, who is assisted by an assistant to the regional director, a regional attorney, and supervisors. These officers supervise a professional staff consisting of field attorneys and field examiners. Examiners investigate allegations of unfair labor practices, investigate cases involving questions of union representation, and conduct union representation elections. Field attorneys have the same duties as field examiners but also try cases in administrative and federal district courts.

C. Initial Hiring and Promotion Tracks of NLRB Professional Employees

1. Field Examiners

The normal entry level for field examiners during the period covered by this lawsuit was at a classification known as GS-7, though some field examiners enter at GS-5. In order to move up the career ladder to the next level, a field examiner must serve one year in grade and receive satisfactory performance evaluations. Field examiners can also be hired at a higher level, GS-9, if the applicant has completed a masters degree in labor relations, industrial relations, or labor economics or if the applicant has special experience. From the entry level, a

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field examiner's career ladder progresses up through GS-12, which is the "journeyman" level. Once a field examiner is hired, the field examiner receives promotions without applying for them and without competition until he or she reaches the GS-12 journeyman level. Regional directors make decisions as to promotions up to GS-12.

Field examiners beyond the journeyman level may be supervisors of other NLRB professional employees, or they may occupy nonsupervisory "expert" positions. Promotions beyond the GS-12 journeyman level include competitive positions such as Compliance Officer, Group Supervisor or District Specialist. A field examiner must ordinarily serve sixteen months at the GS-12 journeyman level before becoming eligible for a promotion beyond the journeyman level to GS-13. A GS-13 examiner is considered to be at an "expert" level position and is expected to handle the most complex cases with a minimum of supervision. In order for a field examiner to be eligible for a higher level, GS-13 position, he or she must be recommended qualified for the position. Unlike promotions up to the GS-12 journeyman level in which promotion decisions are made almost exclusively within the region, recommendations for promotions to competitive positions beyond GS-12 depend on an appraisal process which originates in the regional office and which is reviewed in Washington.

2. Field Attorneys

The normal entry level for field attorneys is GS-9. Field attorneys are also evaluated on an annual basis, and assuming satisfactory performance, can be promoted at one-year intervals up to GS-13, the journeyman level for field attorneys. Regional directors have the authority to promote field attorneys up to the GS-13 journeyman level. The GS-14 field attorney level is expected to handle complex cases with a minimum of supervision. The GS-14 field attorney and above may supervise other NLRB professional employees or may serve as an expert nonsupervisory attorney. The normal waiting period for promotion to GS-14 attorney is twenty-four months. Promotion beyond GS-13 again depends on availability of positions and ratings received through the appraisal process. Like promotions above the journeyman level for field examiners, recommendations for promotion to competitive positions beyond GS-13 field attorney are obtained through an appraisal process, originating in the regional office and reviewed in Washington.

D. The Appraisal Process

1. Appraisals to Journeyman Level

Since 1967, professional employees below the journeyman level have been evaluated on a standardized form which consists of two parts. Part I lists twelve factors on which to evaluate field examiners and attorneys in grades GS-5 through GS-11, and an additional eight factors on which to evaluate attorneys and examiners in GS-12 and above. Next to each factor are several descriptive statements from which the employee's supervisor may choose to describe the employee's performance on that factor. The supervisor may also choose not to select any of those statements. The statements are not arranged from least favorable to most favorable (or vice versa), since the developers of the form believed that a varied pattern of options on the form would encourage supervisors to study the form and make more deliberate decisions on which of the descriptive statements to select. Part II of the form is headed "Narrative Comments." The form states that the supervisor is to comment specifically on the performance of the employee, both strengths and weaknesses, and is to give concrete examples. Supervisors have received training and examples to follow in the appraisal process at least since the mid-1970's.

Once the supervisor has prepared the form, the employee is allowed to comment on the appraisal before it is sent to the regional director, the assistant regional director, and the regional attorney. These officials determine whether the employee

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will be promoted to the next level. The employee has the right, under the collective bargaining agreement between the employees' union and the NLRB, to meet with the regional director to discuss the appraisal. The employee can also submit written comments on the appraisal. The employee can also challenge the appraisal through the grievance/arbitration procedures provided in the collective bargaining agreement.

2. Appraisals of Journeyman-Level Professional Employees

Evaluations for promotions beyond the journeyman level to competitive positions at either a supervisory or nonsupervisory expert level begin at the regional office and are reviewed at NLRB headquarters in Washington. Evaluations for employees are initially prepared by their supervisors. The employee is allowed to discuss the appraisal with his or her supervisor, meet with the regional director, and attach comments to the appraisal before it is sent to NLRB headquarters. The evaluations of these journeyman-and-above employees must specifically include an appraisal of potential for promotion to the supervisory positions. The regional director recommends whether the employee is "well qualified" or "not ready" for promotion to supervisory positions. The collective bargaining agreement also requires a determination of whether the employee should be promoted to nonsupervisory positions above the journeyman level. This appraisal by the regional director is reviewed in Washington by the Divisions of Operations Management ("Operations"). If the employee disagrees with the recommendation from the regional office, he or she may file comments with Operations.

A panel of three Operations staff members reviews the region's initial...

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