North Carolina Air National Guard, Charlotte, North Carolina (Respondent) and American Federation of Government Employees, Local 3001, AFL-CIO (Charging Party) 



[ v04 p348 ]
04:0348(44)CA
The decision of the Authority follows:


 4 FLRA No. 44
 
 NORTH CAROLINA AIR NATIONAL GUARD
 CHARLOTTE, NORTH CAROLINA
 Respondent
 
 and
 
 LOCAL 3001, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 4-CA-37
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS DECISION FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
 LABOR PRACTICE UNDER EXECUTIVE ORDER 11491, AS AMENDED, ALLEGED IN THE
 COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
 ENTIRETY.  THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS TO THE
 ADMINISTRATIVE LAW JUDGE'S DECISION.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.1).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
 PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7135(B) OF THE STATUTE, THE
 AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE
 AT THE HEARING AND FINDS NO PREJUDICIAL ERROR WAS COMMITTED.  THE
 RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE
 LAW JUDGE'S DECISION AND THE ENTIRE RECORD IN THE SUBJECT CASE,
 INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
 THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
 JUDGE THAT THE RESPONDENT DID NOT VIOLATE SECTION 19(A)(1) AND (5) OF
 THE ORDER BY TERMINATING UNION DUES ALLOTMENT AUTHORIZATIONS OF TWO
 SMALL SHOP CHIEFS WHO WERE FOUND TO BE SUPERVISORS UNDER THE ORDER.
 
    IN ADOPTING THE ADMINISTRATIVE LAW JUDGE'S FINDINGS THAT THE TWO
 SMALL SHOP CHIEFS IN QUESTION EXERCISE SUPERVISORY AUTHORITY WITH REGARD
 TO CERTAIN MILITARY PERSONNEL AND THEREFORE ARE SUPERVISORS WITHIN THE
 MEANING OF SECTION 2(C) OF THE ORDER, THE AUTHORITY SHOULD NOT BE
 CONSTRUED AS HAVING DECIDED THAT THE SAME RESULT WOULD OBTAIN IN A CASE
 ARISING UNDER AND GOVERNED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE).  IN THIS REGARD, THE AUTHORITY NOTES
 THAT SECTION 7103(A)(10) OF THE STATUTE PROVIDES THAT "SUPERVISOR" MEANS
 AN INDIVIDUAL HAVING AUTHORITY OVER "EMPLOYEES," WHO ARE DEFINED IN
 SECTION 7103(A)(2), IN PERTINENT PART, AS "INDIVIDUAL(S) EMPLOYED IN AN
 AGENCY . . . BUT DOES NOT INCLUDE . . .  MEMBER(S) OF THE UNIFORMED
 SERVICES."
 
                                 ORDER /1/
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN AUTHORITY CASE NO.
 4-CA-37 BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 29, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
   
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    EDWIN M. SPEAS, JR., ESQ.
                            FOR THE RESPONDENT
 
    LINDA J. NORWOOD, ESQ.
    WILLIAM N. CATES, ESQ.
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  WILLIAM NAIMARK
                         ADMINISTRATIVE LAW JUDGE
 
                                                    CASE NO. 4-CA-37
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED, HEREIN
 CALLED THE ORDER.  BASED UPON A SECOND AMENDED CHARGE FILED BY LOCAL
 3001, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (HEREIN
 CALLED THE UNION) AGAINST NORTH CAROLINA AIR NATIONAL GUARD, CHARLOTTE,
 NORTH CAROLINA (HEREIN CALLED RESPONDENT), A COMPLAINT WAS ISSUED
 AGAINST RESPONDENT ON NOVEMBER 13, 1979.  THE SAID COMPLAINT WAS ISSUED
 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
 REGION 4.  A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JANUARY 15, 1980
 AT CHARLOTTE, NORTH CAROLINA.
 
    THE COMPLAINT HEREIN ALLEGED THAT ON OR ABOUT NOVEMBER 13, 1979
 RESPONDENT UNILATERALLY AND ERRONEOUSLY DETERMINED THAT SMALL SHOP
 CHIEFS WINSTON G. KIDD AND WILLIAM P. RHINE, JR. WERE SUPERVISORS, AND
 THAT RESPONDENT TERMINATED THEIR UNION DUES ALLOTMENT AUTHORIZATION IN A
 VIOLATION OF SECTION 19(A)(1) OF THE ORDER;  AND THAT BY THE AFORESAID
 CONDUCT RESPONDENT REFUSED TO ACCORD RECOGNITION TO A LABOR
 ORGANIZATION
 QUALIFIED THEREIN IN VIOLATION OF SECTION 19(A)(5) OF THE ORDER.
 
    RESPONDENT'S ANSWER, WHICH WAS FILED ON NOVEMBER 27, 1979, DENIED THE
 COMMISSION OF ANY UNFAIR LABOR PRACTICES.
 
    ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
 CROSS EXAMINE WITNESSES.  THEREAFTER BRIEFS WERE FILED WHICH HAVE BEEN
 DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THE CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN AND SINCE AT LEAST SEPTEMBER 21,
 1969 LOCAL 3001, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 HAS BEEN AND STILL IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE
 CIVILIAN TECHNICIANS EMPLOYED BY THE RESPONDENT AT CHARLOTTE, NORTH
 CAROLINA.
 
    2.  NO COLLECTIVE BARGAINING AGREEMENT EXISTS BETWEEN THE UNION AND
 RESPONDENT COVERING SAID EMPLOYEES.
 
    3.  ON SEPTEMBER 21, 1969 THE UNION AND RESPONDENT EXECUTED A WRITTEN
 AGREEMENT PROVIDING FOR THE VOLUNTARY ALLOTMENT BY CIVILIAN TECHNICIAN
 PERSONNEL OF UNION DUES AS MEMBERS OF THE UNION HEREIN.  UNDER THIS
 ARRANGEMENT RESPONDENT AGREED TO, AND THEREAFTER DID, CHECK OFF DUES
 OWING TO THE UNION BY SAID EMPLOYEES AND REMIT SUCH DUES TO THIS LABOR
 ORGANIZATION.  PURSUANT THERETO CIVILIAN TECHNICIANS WINSTON G. KIDD
 (HEREIN CALLED KIDD) AND WILLIAM P. RHYNE, JR. (HEREIN CALLED RHYNE) WHO
 ARE EMPLOYED BY RESPONDENT, ELECTED TO, AND DID, HAVE THEIR UNION DUES
 DEDUCTED FROM THEIR PAY CHECKS BY RESPONDENT.
 
    4.  THE MISSION OF THE NORTH CAROLINA AIR NATIONAL GUARD IS AN
 AIRLIFT OPERATION AND IT PROVIDES A COMBAT FORCE TO THE U.S. AIR FORCE.
 ITS GROUP STRENGTH NUMBERS ABOUT 1012 INDIVIDUALS.  AN INTEGRAL PART OF
 ITS OPERATION IS THE AIR TECHNICIAN PROGRAM WHEREBY RESPONDENT TRAINS
 RESERVISTS, MAINTAINS EQUIPMENT, AND SUPPLIES SERVICES TO SUPPORT THE
 MISSION.  ABOUT 200 AIR TECHNICIANS ARE INCLUDED WITHIN THIS PROGRAM,
 ALL OF WHOM MUST BE MEMBERS OF THE AIR NATIONAL GUARD.
 
    5.  THE FIELD MAINTENANCE DIVISION IS FED THROUGH FIVE BRANCHES.
 ONCE SUCH BRANCH, AEROSPACE SYSTEMS, INCLUDES FOUR SECTIONS AND 21 SMALL
 SHOPS.  THERE ARE ABOUT FOUR AIR GUARDSMEN /2/ ASSIGNED TO EACH SHOP,
 AND EACH SUCH SHOP HAS AN AIR TECHNICIAN DESIGNATED AS SMALL SHOP CHIEF.
  THE DUTIES AND RESPONSIBILITIES OF ALL SHOP CHIEFS ARE ESSENTIALLY THE
 SAME.  SECTION CHIEF IS BOBBY HURD WHO SUPERVISES SHOP CHIEFS KIDD AND
 RHYNE.  HE IS SUPERVISED BY BRANCH CHIEF EMMET CALDWELL.
 
    6.  KIDD AND RHYNE /3/ ARE, AND HAVE BEEN AT ALL TIMES MATERIAL
 HEREIN, SMALL SHOP CHIEFS IN THE AEROSPACE SYSTEMS BRANCH.  BOTH MEN ARE
 CLASSIFIED AS WG11 CIVILIAN TECHNICIANS.  THEY WORK IN A HANGAR AND
 PERFORM FUEL SYSTEM MAINTENANCE ON AIRCRAFT.  WILLIAM A.  RANDALL, WHO
 IS ALSO EMPLOYED AS A PNEUDRAULIC MECHANIC, WORKS REGULARLY WITH KIDD
 AND HAS A MILITARY RAND OF MASTER SERGEANT (E7).  A TECHNICIAN IS ALSO
 ASSIGNED TO RHYNE'S SHOP ON A SIMILAR BASIS.
 
    7.  THE RECORD REFLECTS THAT WORK IS ASSIGNED TO KIDD'S SHOP FROM A
 DISPATCHER WHO GENERALLY FIXES PRIORITY FOR THE JOBS.  THIS IS
 ESPECIALLY TRUE OF "ON-EQUIPMENT" WORK DONE TO THE AIRCRAFT OR ITS
 EQUIPMENT.  KIDD AND RANDALL USUALLY WORK ALONGSIDE AND WITH EACH OTHER
 AND DIVIDE THE WORK ON A 50-50 BASIS;  BUT IF TWO JOBS HAVE EQUAL
 PRIORITY, KIDD MAY DECIDE WHICH OF THE TWO WORKERS SHALL PERFORM A
 PARTICULAR TASK.  IN RESPECT TO "OFF-EQUIPMENT" WORK, THE SHOP CHIEF MAY
 DECIDE WHICH COMPONENTS CAN BE REPAIRED LOCALLY, AND IF IT IS
 FINANCIALLY EXPEDIENT TO DO SO.  SHOULD MORE THAN ONE PERSON BE NEEDED
 TO COMPLETE THE TASK, THE SHOP CHIEF WOULD REQUEST ADDITIONAL MECHANICS.
  BOTH KIDD AND RANDALL ARE PRODUCTION INSPECTORS AND MIGHT CHECK EACH
 OTHER'S WORK.
 
    8.  KIDD WAS RESPONSIBLE FOR TRAINING RANDALL, BUT THE LATTER IS NOW
 CONSIDERED PROFICIENT AND DOES NOT REQUIRE ADDITIONAL TRAINING.  WHEN HE
 DID TRAIN RANDALL, THE SHOP CHIEF WOULD DECIDE THE TYPE OF GUIDANCE
 NEEDED AND WAS RESPONSIBLE FOR EVALUATING HIS PROFICIENCY.  RECORD FACTS
 FURTHER REVEAL THAT KIDD FILLS OUT AN "ON-THE-JOB TRAINING RECORD" FOR
 RANDALL AND GUARDSMEN.  THIS LISTS THE ACTIONS TO BE ACCOMPLISHED UNDER
 THE TRAINING PROGRAM AND CERTIFIES THEIR COMPLETION.  KIDD'S DIRECTION
 OF RANDALL'S WORK WAS IN THE NATURE OF A MORE EXPERIENCED WORKER
 ASSISTING OR INSTRUCTING A LESS EXPERIENCED ONE.
 
    9.  THE RECORD REFLECTS THAT KIDD HAS NEVER HIRED OR FIRED A CIVILIAN
 EMPLOYEE, NOR RECOMMENDED SUCH ACTION.  NEITHER HAD KIDD DISCIPLINED,
 REPRIMANDED, SUSPENDED, PROMOTED, OR RECOMMENDED SUCH ACTION, FOR THESE
 EMPLOYEES.  FURTHER, KIDD TESTIFIES, AND I FIND, THAT MANAGEMENT NEVER
 TOLD THOSE SHOP CHIEFS THEY HAD THE AUTHORITY TO TAKE SUCH ACTION.
 
    10.  IN THE EVENT THAT RANDALL, OR HIS COUNTERPART IN RHYNE'S SHOP,
 NEEDED APPROVAL TO TAKE LEAVE, THESE INDIVIDUALS WOULD CONSULT BOBBY
 HERD, THE SECTION CHIEF IN CHARGE OF THE SHOPS.  WHILE RANDALL MIGHT
 ADVISE THE SHOP CHIEF OF HIS INTENTION TO BE ABSENT, KIDD DID NOT, IN
 FACT, APPROVE LEAVE FOR HIS CO-WORKER.
 
    11.  THE RECORD REFLECTS, AND I FIND, THAT DURING ONE WEEKEND EACH
 MONTH, THREE AIR GUARDSMEN REPORT TO KIDD FOR MILITARY DRILL.  /4/ WHEN
 THE GUARDSMEN MISS SUCH REGULAR DRILLS, THEY MAY REPORT FOR THE TWO DAY
 DUTY DURING THE WORK WEEK.  IN ALL THESE INSTANCES THE AIR GUARDSMEN ARE
 UNDER THE SUPERVISION OF THE SHOP CHIEF.  KIDD HAS COMPLETE
 RESPONSIBILITY FOR THE GUARDSMEN WHETHER THEY ARE IN DRILL STATUS OR
 DOING MAINTENANCE AND REPAIR WORK ON AIRCRAFT OR ITS EQUIPMENT.
 GUARDSMEN WILL NOT RECEIVE PROMOTIONS UNLESS THE SMALL SHOP CHIEF
 RECOMMENDS SUCH ACTIONS.  KIDD TESTIFIED HE IS RESPONSIBLE FOR THE
 PROMOTIONS OF THE GUARDSMEN.  /5/ THESE CHIEFS ALSO ASSIGN TASKS TO THE
 GUARDSMEN IN THE HANGARS AS WELL AS RESPONSIBLY DIRECT THEIR WORK.
 
    12.  ON JANUARY 25, 1978 KIDD FILLED OUT A QUESTIONNAIRE FOR SMALL
 SHOP CHIEF POSITIONS.  IT DESCRIBED THE DUTIES OF THE SMALL SHOP CHIEF
 AS A TECHNICIAN AND GUARDSMAN.  KIDD CHECKED OFF THE PROVISIONS HE
 DEEMED APPLICABLE TO THE POSITION.  ONE OF THESE STATED THE SHOP CHIEF
 WORKS WITH AN UNUSUAL AMOUNT OF INDEPENDENCE IN PLANNING AND OVERSEEING
 ASSIGNMENTS OF CIVILIAN TECHNICIANS AND DRILL GUARDSMEN.  ANOTHER
 PROVISION, WHICH KIDD CHECKED, STATES THAT THE SHOP CHIEF HAS
 SUBSTANTIAL SUPERVISORY RESPONSIBILITY FOR THE TECHNICIANS' WORK;  THAT
 HE PLANS, ORGANIZES, AND SCHEDULES WORK TASKS, SCHEDULES LEAVE,
 APPRAISES PERFORMANCE, RECOMMENDS PROMOTIONS AND INITIATES DISCIPLINARY
 ACTION.  KIDD TESTIFIED HE CHECKED OFF THESE CLAUSES BECAUSE HE FELT
 THEY APPLIED TO HIS RESPONSIBILITIES OVER GUARDSMEN.
 
    13.  THE POSITION DESCRIPTIONS OF BOTH SHOP CHIEFS KIDD AND RHYNE
 RECITE THAT THEY HAVE "SUBSTANTIAL SUPERVISORY RESPONSIBILITY FOR
 CONTROL OVER WORK OPERATIONS PERFORMED BY OTHER CIVILIAN TECHNICIANS;"
 THAT THE SHOP CHIEF PLANS, ORGANIZES, AND SCHEDULES WORK ASSIGNMENTS;
 THAT THE CHIEF ADJUSTS ASSIGNMENTS, SCHEDULES LEAVE, APPRAISES
 PERFORMANCE, RECOMMENDS PROMOTIONS AND INITIATES DISCIPLINARY ACTION.
 /6/
 
    14.  THE AFORESAID POSITION DESCRIPTION ALSO RECITES THAT THE
 AIRCRAFT PNEUDRAULIC SYSTEM MECHANIC (SHOP CHIEF) IS THE FIRST LINE
 SUPERVISOR OF MAINTENANCE PRODUCTION;  THAT HE EVALUATES EFFECTIVENESS
 OF HIS TRAINING;  INTERVIEWS AND RECOMMENDS SELECTION OF EMPLOYEES FOR
 POSITIONS;  INITIATES AND REVIEWS PERSONNEL ACTIONS AFFECTING
 SUBORDINATES SUCH AS LEAVE, STEP INCREASES, PROMOTIONS, TERMINATIONS,
 AND DISCIPLINARY ACTION.
 
    15.  AIR FORCE MANUAL 66(A), VOLUME 4, DEFINES THE TASKS AND
 RESPONSIBILITIES OF ALL PERSONNEL.  RESPONDENT OPERATES UNDER THIS
 MAINTENANCE MANAGEMENT PROGRAM WHICH IT ADVERTS TO AS ESTABLISHING THE
 SUPERVISORY AUTHORITY OF SHOP CHIEFS.
 
    16.  RESPONDENT CALLED A MEETING OF SMALL SHOP CHIEFS IN SEPTEMBER,
 1978.  THE CHIEFS, WHO WERE TOLD BY MANAGEMENT THEY WERE SUPERVISORS,
 WERE INSTRUCTED TO SIGN THE POSITION DESCRIPTION.  ALTHOUGH HE SIGNED
 THE JOB DESCRIPTION, KIDD PROTESTED TO MAJOR ELLINGTON THAT HE DID NOT
 SCHEDULE LEAVE, FILL OUT APPRAISAL OR PERFORMANCE RATINGS, NOR PERFORM
 THE SUPERVISORY DUTIES MAINTAINED THEREIN.  FURTHER, KIDD INQUIRED
 WHETHER THE SHOP CHIEFS WOULD BE PERFORMING THESE DUTIES AND MANAGEMENT
 REPLIED IN THE NEGATIVE.
 
    17.  IN DECEMBER, 1979 KIDD WAS GIVEN RANDALL'S PERSONNEL FOLDER.  HE
 WAS TOLD TO MAINTAIN IT UNDER LOCK AND KEY.  KIDD WAS ALSO HANDED
 RANDALL'S JOB DESCRIPTION BY SUPERVISOR HURD, AND THE LATTER INSTRUCTED
 THE SHOP CHIEF HOW TO MAKE CERTAIN ENTRIES ON THE FOLDER.  EXCEPT FOR
 THIS NEWLY ASSIGNED DUTY, KIDD'S WORK TASKS AND RESPONSIBILITIES
 REMAINED THE SAME AS PREVIOUSLY.
 
    18.  ON DECEMBER 2, 1978 RESPONDENT TERMINATED THE UNION DUES CHECK
 OFF, WHICH HAD CONTINUED UNTIL THAT DATE, FOR BOTH KIDD AND RHYNE ON THE
 GROUND THAT BOTH SMALL SHOP CHIEFS WERE SUPERVISORS.
 
                                CONCLUSIONS
 
    THE ISSUE PRESENTED FOR DETERMINATION HEREIN IS SIMPLY STATED:
 WHETHER SMALL SHOP CHIEFS KIDD AND RHYNE WERE SUPERVISORS ON DECEMBER 2,
 1978 WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER SO AS TO WARRANT
 RESPONDENT'S TERMINATING THE CHECK OFF OF DUES FOR EACH EMPLOYEE.
 
    GENERAL COUNSEL CONTENDS THAT, IN RESPECT TO THE CO-WORKER OR
 MECHANIC WHO WORKS DAILY WITH EACH SUCH SHOP CHIEF, NEITHER KIDD NOR
 RHYNE EXERCISES SUPERVISORY RESPONSIBILITY.  ALTHOUGH NOT CONCEDING THAT
 THESE SHOP CHIEFS SUPERVISE THE AIR GUARDSMEN, WHO REPORT EACH MONTH TO
 KIDD AND RHYNE, GENERAL COUNSEL INSISTS THAT SUCH A FINDING DOES NOT
 REQUIRE THE CONCLUSION THAT THESE INDIVIDUALS ARE NONETHELESS
 SUPERVISORS.
 
    (1) RESPONDENT, IN URGING THAT THESE SHOP CHIEFS ARE SUPERVISORS
 UNDER 2(C) OF THE ORDER, ADVERTS TO THE FACT THAT BOTH KIDD AND RHYNE
 SIGNED QUESTIONNAIRES WHICH OUTLINED THEIR SUPERVISORY RESPONSIBILITIES.
  FURTHER, IT RELIES UPON THE POSITION DESCRIPTION, EMPHASIZED IN THE AIR
 MANUAL, WHICH REFERS TO THEIR SUPERVISORY DUTIES AND AUTHORITY AS SMALL
 SHOP CHIEFS.  HOWEVER, PAST DECISIONS IN THE PUBLIC SECTOR LAY STRESS ON
 THE EXERCISE OF SUCH AUTHORITY, AS OPPOSED TO THE MERE RESTING OF
 RESPONSIBILITY, AS ACTUALLY DETERMINATIVE OF SUPERVISORY STATUS.  SEE
 UNITED STATES ARMY AND AIR FORCE EXCHANGE SERVICE, REDSTONE ARSENAL
 EXCHANGE, REDSTONE ARSENAL, ALABAMA, A/SLMR NO. 491.  THUS THE CRITICAL
 QUESTION AT HAND IS WHETHER, IN FACT, KIDD AND RHYNE PERFORMED AND
 EXERCISED ANY OF THE RESPONSIBILITIES ATTACHED TO THE DEFINITION OF A
 SUPERVISOR UNDER THE ORDER.
 
    CAREFUL CONSIDERATION OF THE ENTIRE RECORD CONVINCES ME THAT VIS A
 VIS HIS CO-WORKER RANDALL, SHOP CHIEF KIDD /7/ DOES NOT EXERCISE ANY OF
 THE SUPERVISORY FUNCTIONS SET FORTH IN SECTION 2(C).  IT APPEARS THAT
 KIDD MAKES NO MAJOR ASSIGNMENTS TO RANDALL SINCE THESE ARE DONE BY THE
 MAINTENANCE DIVISION.  THE PARCELING OUT OF PRIORITY WORK IS, IF
 NECESSARY, ROUTINELY DONE BY KIDD.  FURTHER, SINCE RANDALL IS PROFICIENT
 IN HIS PERFORMANCE AS A TECHNICIAN, NO DIRECTION OF HIS WORK IS
 REQUIRED.  ANY ASSIGNMENTS MADE TO THE CO-WORKER, OR DIRECTIONS GIVEN
 HIM, BY THE SHOP CHIEF ARE ACTS OF A MORE EXPERIENCED EMPLOYEE ASSISTING
 A LESS EXPERIENCED EMPLOYEE.  I DO NOT CONSTRUE THESE ASSIGNMENTS TO BE
 TYPICAL OF THOSE MADE BY SUPERVISORS WHO EXERCISE CONSIDERABLE
 INDEPENDENT JUDGMENT IN ASSIGNING TASKS OR DIRECTING THEIR PERFORMANCE.
 U.S.  DEPT. OF AGRICULTURE, AGRICULTURAL RESEARCH, PHILADELPHIA,
 PENNSYLVANIA, A/SLMR NO. 479.
 
    THERE IS, MOREOVER, NO EVIDENCE THAT KIDD ASSUMES ANY OF THE
 RESPONSIBILITIES OVER RANDALL WHICH ARE LISTED AS INDICIA OF SUPERVISORY
 AUTHORITY UNDER THE ORDER.  HE NEITHER HIRES, FIRES, DISCIPLINES,
 TRANSFERS, PROMOTES, SUSPENDS, OR REWARDS HIS CO-WORKER.  NO
 RECOMMENDATION IN THIS REGARD HAS BEEN MADE FOR RANDALL.  RECORD FACTS
 DISCLOSE THE LATTER DOES NOT SEEK THE SHOP CHIEF'S APPROVAL TO TAKE
 LEAVE, BUT HE MERELY ADVISES KIDD THAT HE WILL BE ABSENT.  /8/ APPROVAL
 FOR SUCH LEAVE IS GRANTED BY SUPERVISOR HURD.  WHILE IT IS TRUE THAT THE
 SHOP CHIEF TRAINED HIS CO-WORKER, THE TRAINING INVOLVED ROUTINE
 INSTRUCTIONS FROM A MORE EXPERIENCED WORKER.  THE EVALUATION MADE BY
 KIDD OF HIS TRAINEE'S PERFORMANCE WAS STANDARD IN NATURE.  IT DID NOT
 LEAD TO A PROMOTION AND THERE IS NOW SHOWING IT HAD ANY IMPACT UPON
 RANDALL'S STATUS WITH RESPONDENT.  ACCORDINGLY, I CANNOT CONCLUDE SUCH
 AN APPRAISAL OF RANDALL'S TRAINING PERFORMANCE JUSTIFIES THE CONCLUSION
 THAT BE ACTED AS A SUPERVISOR.  ARIZONA NATIONAL GUARD, AIR NATIONAL
 GUARD, SKY HARBOR AIRPORT, A/SLMR NO. 436.
 
    I AM MINDFUL OF THE AUTHORITY'S RECENT DECISION IN GEORGIA NATIONAL
 GUARD, DEPARTMENT OF DEFENSE, ATLANTA, GEORGIA, 2 FLRA NO. 92 WHERE ALL
 SMALL SHOP CHIEFS WERE DEEMED TO SUPERVISE THE CIVILIAN TECHNICIANS
 ASSIGNED TO THEIR SHOPS.  NEVERTHELESS, IN RESPECT TO KIDD'S
 RESPONSIBILITIES AND DUTIES CONCERNING RANDALL, I FIND THE INSTANT CASE
 DISTINGUISHABLE.  IN THE CITED CASE THE AUTHORITY FOUND THAT THE SMALL
 SHOP SUPERVISORS EITHER HAD OR WOULD BE REQUIRED TO EXERCISE AUTHORITY
 TO, INTER ALIA, INITIATE DISCIPLINARY ACTION, APPROVE LEAVE, RECOMMEND
 HIRING, AND EVALUATE CIVILIAN TECHNICIANS ASSIGNED TO THEIR SHIFT.
 APART FROM THEIR AUTHORITY OVER, AND RESPONSIBLE DUTIES TOWARD, THE AIR
 GUARDSMEN WHO REPORT TWO DAYS PER MONTH, NEITHER KIDD NOR RHYNE EXERCISE
 SUPERVISORY RESPONSIBILITY OVER THE CIVILIAN TECHNICIAN WITH WHOM EACH
 WORKS ON A DAILY BASIS.  FURTHER, NO EVIDENCE SUPPORTS THE CONCLUSION
 THAT EITHER WILL BE REQUIRED TO EXERCISE SUPERVISION OVER SUCH
 CO-WORKERS WITHIN THE FRAMEWORK OF SECTION 2(C) OF THE ORDER.  /9/ THUS,
 I CONCLUDE THAT NEITHER KIDD NOR RHYNE IS A SUPERVISOR BASED SOLELY ON
 HIS RELATIONSHIP WITH, AND RESPONSIBILITIES TOWARD, THIS TECHNICIAN.
 
    (2) THE RECORD FACTS ESTABLISH THAT, AS TO THE MILITARY PERSONNEL WHO
 ARE ASSIGNED EACH MONTH TO SHOP CHIEFS KIDD AND RHYNE, THE LATTER DO
 EXERCISE SUPERVISORY DUTIES AND RESPONSIBILITIES.  IT IS CONTENDED BY
 GENERAL COUNSEL THAT, ASSUMING ARGUENDO THE SHOP CHIEFS DO SUPERVISE THE
 GUARDSMEN, THEY ARE NOT SUPERVISORS WITHIN THE MEANING OF SECTION 2(C)
 OF THE ORDER.  IN MAKING THIS CONTENTION THE GENERAL COUNSEL
 DISTINGUISHES THE CASE AT BAR FROM DEPARTMENT OF THE AIR FORCE,
 MCCONNELL AIR FORCE BASE, KANSAS, A/SLMR NO. 134;  1 FLRC 310 WHEREIN
 THOSE WHO SUPERVISED MILITARY PERSONNEL WERE FOUND TO BE SUPERVISORS
 UNDER THE ORDER.  IT IS URGED THAT TWO SIGNIFICANT DIFFERENCES EXIST
 BETWEEN THE CITED CASE AND THE ONE AT HAND:  (A) THE INDIVIDUALS IN THE
 MCCONNELL CASE SUPERVISED ONLY MILITARY PERSONNEL, (B) SUPERVISION BY
 SMALL SHOP CHIEFS KIDD AND RHYNE OVER THE AIR GUARDSMEN IS INFREQUENT
 AND TEMPORARY IN CONTRAST TO SUPERVISION EXERCISED IN THE MCCONNEL CASE.
 
    THE ASSISTANT SECRETARY CONCLUDED IN THE CITED CASE THAT IT IS
 IMMATERIAL, IN DETERMINING SUPERVISORY STATUS, WHETHER SUPERVISION IS
 EXERCISED OVER UNIT OR NON-UNIT EMPLOYEES.  HE ALSO STATED THAT HE
 VIEWED AS DETERMINATIVE THE DUTIES PERFORMED BY THE ALLEGED SUPERVISOR
 AND NOT THE TYPE OF PERSONNEL WORKING UNDER THE ALLEGED SUPERVISOR.
 THUS, THE UNION'S ARGUMENT THAT THE INDIVIDUALS DID NOT SUPERVISE
 "EMPLOYEES" (MILITARY PERSONNEL) WAS REJECTED AS NOT DETERMINATIVE OF
 SUPERVISORY STATUS.  NOTHING IN THE MCCONNELL DECISION PERSUADES ME THAT
 IF INDIVIDUALS SUPERVISE MILITARY PERSONNEL, THEY CANNOT BE DEEMED
 SUPERVISORS BECAUSE THEY DO NOT SUPERVISE OTHER PERSONS.  THOUGH IT IS
 TRUE THAT SUPERVISION WAS EXERCISED ONLY OVER MILITARY INDIVIDUALS IN
 THE CITED CASE, I CANNOT CONCLUDE THAT THE PRESENCE OF NON-MILITARY
 PERSONS-- WHO MAY WORK ALONG WITH THE OTHERS AND ARE NOT SUPERVISED BY
 THE SAME INDIVIDUALS-- DESTROYS SUPERVISORY STATUS WHICH OTHERWISE
 EXISTS.  IN LIGHT OF THE FOREGOING DECISION, AND IN THE ABSENCE OF ANY
 COMPELLING LOGIC TO THE CONTRARY, I AM CONSTRAINED TO CONCLUDE THAT
 SUPERVISION BY KIDD AND RHYNE OVER MILITARY PERSONNEL IS NOT VITIATED BY
 THE FACT THAT THEY DO NOT SUPERVISE THE CIVILIAN TECHNICIAN WHO IS THE
 REGULAR CO-WORKER IN EACH SHOP.
 
    GENERAL COUNSEL ALSO MAINTAINS THAT WHATEVER SUPERVISION IS EXERCISED
 BY THE SHOP CHIEFS IS PERFORMED ON AN INFREQUENT AND INTERMITTENT BASIS.
  THEREFORE, IT IS ARGUED THESE INDIVIDUALS DO NOT MEET THE TEST UNDER
 2(C) OF THE ORDER.  PAST DECISION IN THE PRIVATE SECTOR REFLECT THAT
 INDIVIDUALS HAVE BEEN CONSIDERED NON-SUPERVISORS WHERE THEIR SUPERVISORY
 DUTIES WERE INTERMITTENTLY PERFORMED.  HOWEVER, IN THESE PARTICULAR
 INSTANCES THE INDIVIDUALS NOT ONLY EXERCISED THESE FUNCTIONS
 INFREQUENTLY, BUT GENERALLY IN THE ABSENCE OF THE REGULAR SUPERVISOR.
 NEW JERSEY DEPT. OF DEFENSE, A/SLMR NO. 121.
 
    IN THE CASE AT BAR KIDD AND RHYNE SUPERVISE THREE AND FIVE AIR
 GUARDSMEN RESPECTIVELY ON A REGULAR BASIS.  SUPERVISION OCCURS EVERY
 MONTH AND DOES NOT REQUIRE A MANAGER'S ABSENCE IN ORDER TO BE EXERCISED.
  THERE IS NO INDICATION THAT THIS SUPERVISION BY THE SHOP CHIEFS IS TO
 BE DISCONTINUED IN THE FUTURE.  WHILE SUPERVISORY RESPONSIBILITIES BY
 KIDD AND RHYNE OVER THE AIR GUARDSMEN IS NOT FULL TIME, THIS DOES NOT
 MILITATE AGAINST FINDING THEM TO BE REPRESENTATIVES OF MANAGEMENT.  I AM
 PERSUADED THAT THE REGULARITY WITH WHICH THESE INDIVIDUALS EXERCISE
 SUPERVISION OVER THE GUARDSMEN DIFFERENTIATES THEM FROM THESE EMPLOYEES
 WHO SUPERVISE INTERMITTENTLY AND ON RARE OCCASIONS.
 
    ACCORDINGLY, AND ON THE BASIS OF THE FOREGOING, I CONCLUDE THAT BOTH
 KIDD AND RHYNE, AS SMALL SHOP CHIEFS, WERE ON DECEMBER 2, 1978, AND
 STILL ARE, SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
 THUS, RESPONDENT WAS WARRANTED IN TERMINATING THE CHECK OFF OF THEIR
 UNION DUES, AND BY SO DOING IT DID NOT VIOLATE SECTIONS 19(A)(1) AND (5)
 OF THE ORDER.
 
    IT IS THEREFORE RECOMMENDED THAT THE COMPLAINT HEREIN BE DISMISSED IN
 ITS ENTIRETY.
 
                         WILLIAM NAIMARK
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  APRIL 9, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS OF E.O. 11491, AS
 AMENDED, WHICH WAS OPERATIVE AT THE TIME OF THE ALLEGED UNFAIR LABOR
 PRACTICE AND IS ALONE INVOLVED IN THE INSTANT COMPLA