38:0764(67)CU - - Navy, Portsmouth Naval Shipyard, Portsmouth, NH and AFGE Local 2024 - - 1990 FLRAdec RP - - v38 p764



[ v38 p764 ]
38:0764(67)CU
The decision of the Authority follows:


38 FLRA No. 67

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

PORTSMOUTH NAVAL SHIPYARD

PORTSMOUTH, NEW HAMPSHIRE

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2024

(Petitioner)

1-CU-00003

ORDER DENYING APPLICATION FOR REVIEW

December 6, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on an application for review filed by the Petitioner (Union) under section 2422.17(a) of the Authority's Rules and Regulations. The Union seeks review of the Regional Director's Decision and Order on Petition for Clarification of Unit (CU) finding that 12 employees in the position of Police Supervisor, GS-083-06 (Police Sergeant) are supervisors within the meaning of section 7103(a)(10) of the Federal Service Labor-Management Relations Statute (the Statute) and, therefore, should be excluded from the unit.(*) The Activity did not file an opposition to the Union's application for review. For the reasons set forth below, we deny the Union's application.

II. Background and Regional Director's Decision

The Union, the exclusive representative of a consolidated unit of the Activity's employees, filed a CU petition under section 7111(b)(2) of the Statute. The Union sought to clarify the consolidated unit to include employees in the position of Police Supervisor, GS-083-06 (Police Sergeant). The Sergeants are located within the Police Protection Division (the Division) of the Activity's Security Office. The Division is headed by a Police Chief who reports to the Security Office Manager, who in turn reports to the Activity's Commander. In addition to these personnel, the Division also contains an Operation Lieutenant, 6 Lieutenants, and 95 patrol officers at the GS-4 and GS-5 grade levels.

The Division operates on a 24 hours per day, 7 days per week schedule. The Division also operates three basic watch schedules on a daily basis. The weekend watches and the Monday 11:00 a.m. to 9:00 p.m. and 3:00 p.m. to 1:00 a.m. watches are staffed exclusively by Sergeants and patrol officers. Since January 1990, the Sergeants have been assigned to a 12 week rotation and move through all of the shifts, locations, and positions to which Sergeants are normally assigned. The Sergeants periodically perform collateral duties, including supervising refueling watches and serving as range officer.

The parties stipulated that the issue before the Regional Director was whether the Police Sergeants are supervisors within the meaning of section 7103(a)(10) of the Statute. Decision at 2. The Regional Director stated that "[t]he sole issue presented . . . is whether the Sergeants' responsibilities with respect to any of [their] supervisory authority requires the consistent exercise of independent judgment." Id. at 6. The Union contended, among other things, that inasmuch as the "real supervisory authority in the Police Protection Division is vested in Lieutenants and the Police Chief[,]" the Sergeants' exercise of any supervisory responsibilities is "routine or clerical in nature and does not require the consistent exercise of independent judgment required under section 7103(a)(10)." Id. at 5. Further, the Union contended that "even if the Sergeants are found to be supervisors, they should remain in the bargaining unit pursuant to section 7135 of the Statute." Decision at 5.

The Regional Director stated that, based on the record before him, "it is clear that the Sergeants['] responsibilities include several areas of authority that are listed as indicia of supervisor status under section 7103(a)(10) of the Statute." Id. The Regional Director found that the Sergeants had the authority to, among other things, assign patrol officers to various posts, remove them from a post or assignment, adjust work priorities for unsatisfactory performance, direct them in the performance of their assigned duties, approve or disapprove swaps, approve or disapprove their requests for sick or annual leave, counsel them, issue letters of reprimand, and to recommend more severe discipline. Id. at 6.

The Regional Director found that the Sergeants are also responsible for communicating performance plans to their patrol officers, conducting mid-year progress reviews, and assigning patrol officers' annual appraisal ratings. Further, he determined that the Sergeants can recommend patrol officers for awards based on their performance. The Regional Director also determined that "the Sergeants receive minimal direction and guidance from higher level management in the performance of their duties." Id.

The Regional Director noted the Authority's decision in U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Allen Park, Michigan, 35 FLRA 1206, 1211 (1990) (VAMC, Allen Park, Michigan) and ruled that the Sergeants "consistently exercise independent judgment in connection with at least one, if not several, of the section 7103(a)(10) supervisory criteria." Id. In VAMC, Allen Park, Michigan, the Authority reaffirmed that an employee is only required to exercise one of the supervisory criteria set forth in section 7103(a)(10) in conjunction with independent judgment in order to attain supervisory status. VAMC, Allen Park, Michigan, 35 FLRA at 1211-12.

Specifically, the Regional Director found that the Sergeants "consistently exercise independent judgement in the performance appraisal process and in effectively recommending patrol officers for awards because of the limited direction and guidance from higher level management in these areas." Decision at 6. Further, he found that the Sergeants "consistently exercise independent judgement in connection with counseling and reprimanding patrol officers, recommending them for more severe discipline and in informally adjusting their grievances." Id. The Regional Director concluded that the Sergeants "are not simply leaders or more senior employees, but are supervisors within the meaning of section 7103(a)(10)." Id. He stated that "[t]he fact that the Sergeants jointly exercise some of their supervisory authority with other Sergeants does not warrant a different conclusion." Id.

The Regional Director rejected the Union's contention that, even if the Sergeants are found to be supervisors, they may remain in the unit pursuant to section 7135(b) of the Statute. He found that the Union's reliance on section 7135(b) is misplaced because the Union "is not a labor organization which traditionally represents supervisors in private industry, and did not hold recognition for any unit of supervisors on the effective date of the Statute." Id.

Accordingly, the Regional Director ordered the bargaining unit to be clarified to exclude the employees in the positions of Police Supervisor participating in the rotation.

III. Union's Application for Review

The Union contends that the Regional Director "erred in the application of the Statute, the rules and regulations of the Authority and in the interpretation of the testimony and evidence presented, to such an extent as to meet the criteria set forth in [s]ection 2422.17(c)(2) and (4) [of the Authority's] Rules and Regulations," when he determined that the Sergeants are supervisors within the meaning of section 7103(a)(10) of the Statute. Application at 2. The Union claims that the Regional Director's finding is "contrary to the plain meaning of [s]ection 7103(a)(10) and does not take into account the extraordinary nature" of the Police Sergeants' positions. Id. The Union states that "[t]he extraordinary and exceptional nature of the Sergeants' positions [is] that [the Sergeants] function under the mutual supervisor while providing liaison to lesser rated employees[.]" Id. at 5.

Relying on a witness's testimony at the hearing before the Regional Director, the Union argues that the Sergeants "do not perform the most vital of supervisory functions, that of performance appraisal." Id. at 2-3. Further, the Union asserts that the Sergeants do not have the authority to hire, fire, transfer, promote or discipline employees, "or to effectively recommend such action." Id. at 4 (emphasis in original). Rather, the Union contends that the Sergeants "perform the function of Senior employees similar to a Group or Project Leader, under the direction of the true mutual supervisor, the Lieutenant." Id.

The Union asserts that, contrary to the Authority's recent decision in VAMC, Allen Park, Michigan, "it was the intent of Congress that ALL supervisory criteria be met to APPLY the Supervisory exclusion." Id. at 5 (emphasis in original). In this regard, the Union cites U.S. Department of the Navy, Marine Corps Base, Camp Pendleton, California, 8 FLRA 276, 277-78 (1982) (Marine Corps Base).

The Union concludes that the Authority "should take note of the unique nature of the positions and determine, contrary to the Decision and Order of the Regional Director, that the subject positions remain in the Bargaining Unit." Id. at 18.

IV. Analysis and Conclusion

Upon careful consideration of the application for review, we conclude that no compelling reasons exist within the meaning of section 2422.17(c) of our Rules and Regulations for granting the application. The Union contends that the application should be granted based on the standards in section 2422.17(c)(2) and (4) of our Rules and Regulations. We find that no substantial question of law is raised by reason of a departure from Authority precedent (see section 2422.17(c)(2)), and we find that the Regional Director's decision on substantial factual issues has not been shown to be clearly erroneous or to have prejudicially affected the Union's rights (see section 2422.17(c)(4)). The Union's contentions concerning the disputed positions constitute mere disagreement with the Regional Director's factual findings and his application of Authority precedent to those facts.

In particular, we find that no substantial question of law is raised by reason of a departure from Authority precedent with respect to the Regional Director's finding, based on VAMC, Allen Park, Michigan, that the exercise of any one of the supervisory criteria set forth in section 7103(a)(10) with the requisite independent judgment is sufficient to exclude an individual from the bargaining unit as a supervisor.

The Union contends, based on Marine Corps Base, that all the supervisory criteria set forth in section 7103(a)(10) must be met to apply the supervisory exclusion. This contention is without merit. In Marine Corps Base, the Authority held that fire captains were not supervisors within the meaning of the Statute because, among other things, the record evidence established that the exercise of their authority to direct and assign personnel was routine or clerical in nature and did not require the consistent exercise of independent judgment, and further, the record evidence did not establish that the firefighters devoted a preponderance of their employment time exercising such authority. The firefighters at issue in Marine Corps Base are subject to a different statutory test for supervisory status than are other employees, including the Police Sergeants in the instant case. Under section 7103(a)(10) of the Statute, "with respect to any unit which includes firefighters . . . , the term 'supervisor' includes only those individuals who devote a preponderance of their employment time to exercising such [supervisory] authority[.]"

Accordingly, we deny the application for review. The application expresses nothing more than disagreement with the Regional Director's factual findings, which are based on record evidence and have not been shown to be clearly erroneous or to have prejudicially affected the Union's rights, and with his application of Authority precedent to those facts.

In so concluding, we emphasize that our Regulations provide that the Authority "may grant an application for review [of a Regional Director's Decision and Order] only where it appears that compelling reasons exist therefore." 5 C.F.R.  2422.17(c). The Regulations provide four narrow grounds on which an application for review may be granted. Id. In considering whether to grant an application for review, the issue before the Authority is not whether the Authority would have made the same determinations that the Regional Director made but rather, whether the application meets any of the grounds set forth in the Regulations. See U.S. Department of Labor, Mine Safety and Health Administration, Washington, D.C., 37 FLRA 1151, 1159 (1990).

V. Order

The application for review of the Regional Director's Decision and Order on Petition for Clarification of Unit is denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The Regional Director also clarified the unit with respect to one other Police Supervisor assigned to the Day Pass Office. The Regional Director found that "as long as the incumbent of that position is excluded from the normal Sergeants' rotation" the incumbent should be included in the unit. Decision at 7. The R