United States, Department of the Army, Parks Reserve Training Center, Dublin, California (Activity) and International Association of Firefighters, Local F-305, AFL-CIO (Petitioner/Union)

[ v61 p537 ]

61 FLRA No. 100

UNITED STATES
DEPARTMENT OF THE ARMY
PARKS RESERVE TRAINING CENTER
DUBLIN, CALIFORNIA
(Activity)

and

INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS
LOCAL F-305, AFL-CIO
(Petitioner/Union)

SF-RP-05-0026

_____

ORDER
DENYING APPLICATION FOR REVIEW

March 28, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on an application for review filed by the Activity under § 2422.31 of the Authority's Regulations. [n2]  The Union filed an opposition to the Activity's application.

      The Activity seeks review of the Regional Director's (RD's) Decision and Order clarifying the bargaining unit represented by the Union to include two employees. For the reasons set forth below, we deny the Activity's application.

II.      Background and RD's Decision

      The Union is the certified exclusive representative of a unit of non-supervisory firefighters at the Activity. All of the Activity's firefighters are located within the Activity's Fire Department, which is headed by a GS-0081-11 Fire Chief. See RD's Decision at 3. In addition to the Fire Chief, the Fire Department consists of the two GS-0081-08 Supervisory Firefighters and approximately fourteen GS-0081-06 Firefighters. See id.

      The Union filed a petition seeking to clarify the unit to include the two individuals who encumber the position of GS-0081-08, Supervisory Firefighter (referred to in the RD's Decision and in this decision as Captains). [n3]  At the time of the hearing, the two Captain positions were newly created positions that had been filled approximately eight months earlier. The Captains work three 48-hour shifts every two weeks. RD's Decision at 3.  [n4]  They are responsible for the daily administration and operational management of resources. See id. The Captains are also responsible for leading a crew of three or more firefighters who are providing structural and wildland fire suppression, first aid, and rescue services. See id.

      Before the RD, the Union argued that the Captain position should be included in the unit because the incumbents are not supervisors within the meaning of § 7112(b)(1) of the Federal Service Labor-Management Relations Statute (the Statute), as defined in § 7103(a)(10) of the Statute. [n5]  As relevant here, the [ v61 p538 ] Union argued that although the incumbents have limited authority to direct and assign work in certain situations, the exercise of that authority is routine or clerical in nature and does not require the consistent exercise of independent judgment. Moreover, the Union asserted that the Captains do not devote a preponderance of their employment time to exercising such authority.

      The Activity argued before the RD that the position should be excluded from the unit on the ground that the incumbents are supervisors within the meaning of the Statute. In this regard, the Activity contended that the Captains have the authority to perform supervisory functions and are required to consistently exercise independent judgment in carrying out this authority. The Activity also asserted that the Captains devote a preponderance of their employment time to exercising this authority. In making this assertion, the Activity cited to, among other decisions, United States Dep't of the Navy, Marine Corps Base, Camp Pendleton, Cal., 8 FLRA 276 (1982) (Camp Pendleton), and argued that the term "a preponderance of their employment time" in § 7103(a)(10) is measured in terms of "active duty time" and not the entire 24-hour shift. RD's Decision at 2.

      The RD found that the Captains are not supervisors within the meaning of the Statute and should be included in the unit. He stated that, under Authority case law, an employee will be found to be a supervisor if the employee consistently exercises independent judgment with regard to the supervisory indicia set forth in § 7103(a)(10). Id. at 7 (citation omitted). The RD further stated that since the supervisory definition for firefighters includes the additional requirement for "preponderance of employment time," the issue in this case "can be viewed as two-fold. The first question is whether the Captains exercise supervisory authority which requires the consistent exercise of independent judgment. If so, the second question is whether the Captains spend a preponderance of their employment time exercising that authority." Id.

      As to the first question, the RD concluded that the Captains do have the authority to perform some of the supervisory functions listed in § 7103(a)(10) and that they consistently exercise independent judgment in carrying out that authority. Specifically, the RD determined that the Captains have supervisory authority related to hiring, directing and assigning work, and discipline, and that this authority requires the consistent exercise of independent judgment. Thus, according to the RD, the issue becomes whether the Captains spend a preponderance of their employment time exercising such authority.

      In addressing this second question, the RD stated that the Authority has not specifically defined either "preponderance" or "employment time" in relation to § 7103(a)(10) and the Statute itself does not define these terms. See id. at 8-9. Citing Supreme Court precedent for the principle that when Congress has not indicated another intent, the common meanings of statutory words can be assumed, the RD interpreted "preponderance" in this context to mean "excess in number" or "majority." Id. at 9 (citation omitted).

      With regard to "employment time," the RD stated that there are three cases that could be viewed as elucidating the time frame and activities the Authority considers relevant. First, the RD stated that in Camp Pendleton, where the firefighters at issue worked a 24-hour shift, the Authority found that the assistant fire chiefs were excluded from the unit as supervisors because they spent a preponderance of their "`active duty time'" exercising supervisory authority. Id. at 9 (quoting Camp Pendleton, 8 FLRA at 278). Second, the RD noted that in a similar case, where the fire captains also worked a 24-hour shift, the Authority found that although the employees possessed several indicia of supervisory authority, a preponderance of their "workday" did not involve the exercise of this authority, but rather was spent performing routine administrative and clerical duties. See id. (citing Phila. Naval Shipyard, 4 FLRA 484, 487 (1980) (Phila. Naval Shipyard)). Finally, the RD stated that in a third case, the Authority found that although certain aspects of the fire captains' job function may have involved the exercise of supervisory authority, their "overall employment time" was spent "in either routinely administering [a]ctivity directives, performing routine and clerical duties, or waiting to respond to an alarm." Id. (quoting Dep't of the Navy, Navy Educ. & Training Ctr., Newport, R.I., 3 FLRA 325, 327 (1980) (Newport)).

      After his review of this precedent, the RD concluded that irrespective of whether "employment time" is viewed as "the entire shift in which the employees are in a paid duty status[,]" or whether "employment time" excludes "time spent sleeping or engaging in non-work activity[,]" the Captains "do not spend a preponderance of their employment time exercising supervisory authority." Id. at 9.

      In support of this conclusion, the RD next found that, on a daily basis, the amount of time the Captains spend exercising supervisory authority that requires the consistent exercise of independent judgment is "very small." Id. In this regard, the RD found that the evidence revealed that decisions related to assignment of [ v61 p539 ] work, including alarm duties and training, generally take no more than thirty-five minutes. Further, the RD found that the amount of time spent directing work on actual alarm calls is "very minimal." Id. at 10. In this regard, the RD found that the amount of calls is very low and almost all actual fire calls involve "merely providing assistance to an outside fire department." [n6]  Id.

      In addition, the RD found that, over an eight-month period, the Captains had spent approximately 156 hours of employment time, or less than two hours per day, performing "less regular supervisory duties" such as performance appraisals, discipline, hiring, and acting in place of the Chief. Id. Combining this time with the "minimal daily exercise of supervisory authority" mentioned above, the RD found that the Captains "spend nowhere near a majority of their 24-hour day engaging in supervisory functions requiring the consistent exercise of independent judgment." Id. In making this finding, the RD noted that many of the regular duties performed by the Captains are routine administrative and clerical tasks. Further, the RD found that, just like the regular firefighters, the Captains are responsible for their own task assignments and other regular firefighter duties. As such, the RD found that the Captains do not spend a preponderance of their employment time exercising supervisory authority and, therefore, are not supervisors within the meaning of § 7103(a)(10). See id. (citing Phila. Naval Shipyard, 4 FLRA at 487).

      The RD further found that the time the Captains spent engaging in "secondary" indicia of supervisory status, such as attendance at management meetings and supervisory training sessions, and the granting of leave, need not be considered separately. Id. (citing United States Dep't of the Interior, Bureau of Indian Affairs, Navajo Area Office, Gallup, N.M., 45 FLRA 646, 654 (1992)). Although the Captains do attend daily private meetings with the Fire Chief, the RD found that the evidence revealed that these meetings generally involved the discussion of day-to-day operations and, therefore, the Captains do not consistently exercise independent judgment in relation to these discussions. In addition, although the evidence revealed that the Captains have the authority to grant leave and overtime, the RD found that these tasks do not require the exercise of independent judgment because there are specific guidelines in place and the Captains' decisions are based on strict numerical formulas. Similarly, the RD found that time spent in supervisory training does not count towards satisfying the preponderance standard because it does not actually involve supervision of the employees. Even if such time did count, the RD found that it is very minimal and, therefore, does not cause the Captains to meet the preponderance standard. See id. (citation omitted).

      Moreover, the RD found that, even if sleep time and other non-work time are excluded, the maximum two to three hours per day the Captains spend exercising supervisory authority does not amount to more than half of their active work time. Thus, the RD concluded that, although the Captains possess several of the supervisory indicia, they do not spend a preponderance of their active work time exercising supervisory authority within the meaning of the Statute.

      In making this determination, the RD considered the Activity's argument that, under Veterans Admin. Med. Ctr., Fayetteville, N.C., 8 FLRA 651, 660 (1982) (Fayetteville), time spent "thinking" about supervisory actions should be included as time spent exercising supervisory authority. Id. Without expressly rejecting the Activity's argument, the RD stated that the Activity did not cite to any evidence relative to the Captains "thinking" about supervisory duties. Id. at 11. Thus, the RD concluded that the Activity failed to show how this distinction would cause the Captains to meet the preponderance standard in this case.

      The RD also addressed the Activity's argument that the time the Captains spend with the firefighters after 4:00 p.m. should be considered supervisory because they may resolve issues, such as a disagreement between two firefighters, in their capacity as supervisors. While the RD agreed with the Activity that the Captains may exercise their supervisory authority in certain instances after 4:00 p.m., he found that the evidence revealed that they rarely, if ever, do so. Thus, the RD concluded that it is not reasonable to assume that such activity would account for any significant amount of time.

      The RD also noted that, in Fayetteville, the administrative law judge found that the fact that an employee has round-the clock responsibility for other employees did not eliminate the necessity for determining whether the employee spent a preponderance of his or her employment time engaged in exercising supervisory authority. See id. at 11 (citing Fayetteville, 8 FLRA at 660). Similarly, the RD found that the mere fact that the Captains may exercise supervisory authority at any time during the shift does not require a finding that they are supervisors within the meaning of the Statute. In addition, the RD noted that Fayetteville involved [ v61 p540 ] nurses, not firefighters, and the duties of the two are not necessarily comparable.

      Based on the foregoing, the RD concluded that the position of Supervisory Firefighter, GS-0081-08, should be included in the firefighter unit represented by the Union.

III.      Positions of the Parties

A.      Activity's Application for Review

      The Activity requests review of the RD's decision and order on two grounds: (1) the decision raises an issue for which there is an absence of precedent; and (2) there is a genuine issue over whether the RD failed to apply established law.

      First, the Activity asserts that, insofar as the RD stated that the Authority "has not specifically defined `preponderance' or `employment time' in relation to § 7103(a)(10) of the Statute and the Statute itself does not define these terms[,]" this is "clearly an issue for which there is an absence of precedent." Application for Review at 1 (quoting RD's Decision at 8-9). According to the Activity, the RD "looked at three separate cases of the Authority to find if there was a precedent to follow on this issue and could not do so." Id.

      With regard to its second ground, the Activity asserts that the RD "put a high burden on the Activity and misread the statutory definition of a supervisor." Id. at 2. According to the Activity, the statutory definition of "supervisor" first requires a determination as to whether the individual exercises supervisory authority in a way that is not merely routine, but also consistently exercises independent judgment. The Activity asserts that it must next be determined if a preponderance of the employee's employment time is devoted to exercising such judgment. According to the Activity, the RD "combined these two requirements" and found that the Activity had to show that the Captains spend a preponderance of their time "not just exercising supervisory authority[,] but also consistently exercising their independent judgment." Id. The Activity asserts that this exceeds what the Statute requires and that nothing in Authority case law places this type of burden on the Activity.

      With respect to this claim, the Activity asserts that the RD failed to follow the precedent set forth in Fayetteville. According to the Activity, in Fayetteville, the Authority found that "thinking about supervising" is just as much a part of being a supervisor as actually taking supervisory actions. Id. The Activity asserts that the RD failed to apply this precedent and instead found that employees must spend a majority of their 24-hour day engaged in supervisory functions requiring the consistent exercise of independent judgment in order to be a supervisor. Consistent with Fayetteville, the Activity argues that time spent observing subordinates, acting as a role model, and demonstrating proper procedures is all a part of directing employees and, therefore, the time that the Captains spend working alongside other firefighters can be time spent exercising supervisory authority. See id. at 3. In support, the Activity asserts that one of the Captains testified that his evaluation of the performance of his firefighters is not just done when he sits down and meets with the firefighter to discuss performance, but it also involves his daily observance of the firefighter. See id. (citing Tr. at 130).

      The Activity further asserts that the RD failed to follow the precedent set forth in Camp Pendleton, in which the Authority found that assistant fire chiefs who worked 24-hour shifts were supervisors within the meaning of § 7103(a)(10) because they spent a preponderance of their "active duty time" exercising supervisory authority. Id. (quoting Camp Pendleton, 8 FLRA at 278). In addition, the Activity asserts that the assistant fire chiefs' supervisory functions in that case included "visit[ing] fire stations frequently to assure implementation of the training program and maintenance and upkeep of the fire equipment." Id. (quoting Camp Pendleton, 8 FLRA at 278). The Activity asserts that, contrary to Camp Pendleton, the RD erroneously found in the instant case that similar tasks were "routine administrative tasks" that did not establish that the Captains in the present case were exercising supervisory authority. Id.

B.      Union's Opposition

      As an initial matter, the Union asserts that the Activity's application for review should be dismissed because the Activity did not comply with § 2422.31(b) of the Authority's Regulations insofar as it did not "include a summary of evidence relating to any issue raised in the application" and failed to "make specific reference to citations in the transcript of the hearing[.]" Opposition at 1-2. [n7]  [ v61 p541 ]

      The Union also asserts that the application should be denied because the Activity has failed to establish that review is warranted under any of the grounds set forth in § 2422.31(c). In this regard, the Union appears to construe the Activity's arguments in support of its application as an assertion that the RD's finding that the Captains are not supervisors within the meaning of § 7103(a)(10) is unsupported by Authority precedent. The Union asserts that such a claim is "baseless" and that "well-established Authority precedent[,]" such as Camp Pendleton, Phila. Naval Shipyard, and Newport, supports the RD's finding that the Captains are not supervisors within the meaning of § 7103(a)(10). Opposition at 8.

      Finally, the Union asserts that the Activity's claim regarding the term "preponderance of time" was clearly addressed by the RD and the Activity has not "provided any evidentiary rebuttal to the Authorit[y's] consistent position on this matter." Id.

IV.      Analysis and Conclusions

A.      There is not an absence of precedent as to the meaning of "preponderance" and "employment time" in § 7103(a)(10) of the Statute.

      As stated above, § 7103(a)(10) of the Statute defines a supervisor as follows:

"supervisor" means an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment, except that, with respect to any unit which includes firefighters or nurses, the term "supervisor" includes only those individuals who devote a preponderance of their employment time to exercising such authority[.]

5 U.S.C. § 7103(a)(10) (emphasis added).

      Thus, with respect to firefighters and nurses, § 7103(a)(10) provides that "only those individuals who devote a preponderance of their employment time to exercising" supervisory authority will be found to be supervisors. See Dep't of the Navy, Naval Undersea Warfare Engineering Station, Keyport, Wa., 7 FLRA 526 (1981). The "preponderance of time test is more restrictive" than the principal test for supervisors under § 7103(a)(10). Id. at 527. Neither the Statute, nor its legislative history, defines "a preponderance of their employment time" as that term is used in § 7103(a)(10). See id. at 527-29.

      The application for review alleges that there is an absence of precedent concerning the proper interpretation of § 7103(a)(10) of the Statute. Specifically, the application asserts that the Authority "has not specifically defined `preponderance' or `employment time' in relation to § 7103(a)(10) of the Statute and the Statute itself does not define these terms." Application for Review at 1 (quoting RD's Decision at 8-9).

      We address each of these assertions below.

1.     "Preponderance"

      In Fayetteville, the Authority adopted an administrative law judge's finding that the term "preponderance" of a nurse's or a firefighter's employment time, under § 7103(a)(10), means "a majority" of the nurse's or firefighter's employment time. Fayetteville, 8 FLRA at 660. Specifically, the judge stated:

The fact that a head nurse may have round-the-clock "responsibility" for her unit does not eliminate the necessity for carrying out the statutory mandate to determine whether a preponderance of her employment time is engaged in "exercising" supervisory authority. There [are] . . . some nurses and firefighters [who] may have supervisory authority but who, for the most part, are rank-and-file employees. The question really is whether a head nurse is primarily a supervisor or primarily a rank-and-file employee during a majority of her employment time.

Id. (emphasis added). Consequently, as the Authority's decision in Fayetteville adopted the judge's finding that "preponderance," as applied to nurses and firefighters under § 7103(a)(10) of the Statute, means "a majority," there is not an absence of precedent with regard to the meaning of "preponderance" under § 7103(a)(10) of the Statute. [n8] 

      Accordingly, this claim does not establish that review of the RD's decision is warranted under § 2422.31 of the Regulations. [ v61 p542 ]

2.     "Employment Time"

      As set forth above, the RD concluded that irrespective of whether "employment time" is viewed as "the entire shift in which the employees are in a paid duty status[,]" or whether it excludes "time spent sleeping or engaging in non-work activity[,]" the Captains do not spend a preponderance of their employment time exercising supervisory authority. RD's Decision at 9. Stated otherwise, the RD found that the maximum two to three hours per day that the Captains spend exercising supervisory authority does not satisfy the statutory definition of supervisor because the Captains do not spend a majority of their employment time -- whether defined broadly as the entire time for which they are being paid, or narrowly as only the time they are actively working -- exercising supervisory authority.

      The Activity argues that the Authority should grant its application for review because the RD erred in interpreting the Captains' "employment time" as their entire shift, rather than just their active duty time. However, the Activity fails to acknowledge that the RD expressly applied the "active duty time" period favored by the Activity and concluded that "even if time spent sleeping or engaging in non-work activity is excluded, the Captains still do not spend a preponderance of their employment time exercising supervisory authority." Id. Thus, the RD specifically found that the Captains do not meet the statutory definition of supervisor, whether "employment time" is defined broadly as the entire time for which they are being paid, or narrowly as only the time they are actively working. Moreover, in addition to failing to acknowledge that the RD expressly applied the standard that the Activity asserts is the correct standard, the Activity fails to demonstrate that the RD misapplied that standard. As such, the Activity's claim fails to establish that review of the RD's decision is warranted.

      We note that the Authority has applied the term "employment time" in § 7103(a)(10) in several decisions involving firefighters or nurses. For example, with regard to firefighters, in determining whether assistant fire chiefs who worked 24-hour shifts were supervisors under § 7103(a)(10) of the Statute, the Authority has held that "employment time" means their "active duty time[.]" Camp Pendleton, 8 FLRA at 278. In addition, where fire captains worked 24-hour shifts composed of 8 hours active duty, 8 hours standby, and 8 hours sleep, the Authority interpreted "employment time" to mean "workday[.]" Phila. Naval Shipyard, 4 FLRA at 484. In determining whether fire captains who worked 24-hour shifts were supervisors within the meaning of the Statute, the Authority described "employment time" as "their overall employment time" and found that the employees were not supervisors because "their overall employment time is spent in either routinely administering [a]ctivity directives, performing routine and clerical duties, or waiting to respond to an alarm call." Newport, 3 FLRA at 327. With regard to nurses, to whom the term "employment time" also applies, the Authority's decision in Fayetteville adopted the judge's determination that a head nurse's "`employment time' is the 8 hour day shift which she works and for which she is being compensated." Fayetteville, 8 FLRA at 665.

      These decisions demonstrate that, for firefighters and nurses, the term "employment time" in § 7103(a)(10) reflects work time as determined by the record in a particular case. The facts and circumstances presented in each case determine what activities and period of time should be considered in determining work time for the individuals at issue. See, e.g., United States Nat'l Park Serv., Santa Monica Mountains Recreation Area, Agoura Hills, Cal., 50 FLRA 164, 171 (1995) (in remanding a case to a Regional Director to determine whether a firefighter devotes a preponderance of his employment time to exercising supervisory authority, the Authority directed the Regional Director to take into account "only [the individual's] duties during the fire season while [the individual] is in charge of seasonal employees").

      In the instant case, we need not resolve the precise period of time that constitutes "employment time" for the Captains, because the RD expressly found that the Captains do not exercise supervisory authority for a preponderance of their employment time irrespective of whether employment time is defined as the amount of time the firefighters are actively working or as the entire time the firefighters are in a paid duty status. The Activity has not established that the RD erred in making this determination.

      Accordingly, in the facts and circumstances of the present case, the Activity's allegation does not establish that review is warranted.

B.      The RD did not fail to apply established law.

1.     The RD did not apply the wrong legal standard in interpreting § 7103(a)(10) of the Statute.

      We reject the Activity's assertion that the RD "misread" the statutory definition of supervisor and erroneously required the Activity to demonstrate that the Captains spend a preponderance of their employment time "not just exercising supervisory authority[,] but also consistently exercising their independent judgment" [ v61 p543 ] in order to establish that they are supervisors. Application for Review at 2.

      Contrary to the Activity's assertion, in applying § 7103(a)(10), the Authority has consistently applied the standard set forth by the RD, requiring that the employee: (1) engage in supervisory authority that requires the consistent exercise of independent judgment; and (2) spend a preponderance of their employment time exercising such authority. See, e.g., Camp Pendleton, 8 FLRA at 278 (assistant fire chiefs were found to be supervisors where "they spent a preponderance of their active duty time in the exercise of supervisory authority requiring the consistent use of independent judgment"). See also, Veterans Admin., Wash., D.C. and Veterans Admin. Med. Ctr., Salisbury, N.C., 11 FLRA 176, 178 (1983) (nurses found to be supervisors where they "devote[d] a preponderance of their employment time to the exercise of such supervisory authority which is not merely routine or clerical in nature, but requires the consistent exercise of independent judgment").

      Accordingly, the Activity's claim fails to establish that review is warranted.

2.      The RD did not fail to apply Fayetteville.

      In Fayetteville, the Authority adopted the judge's rejection of the intervenor's argument that time spent "thinking about . . . supervisory responsibilities" -- rather than actually doing them -- should not be counted toward the amount of time a nurse exercises supervisory authority. Fayetteville, 8 FLRA at 662 (internal quotations omitted). Specifically, the judge stated:

I am constrained to address [i]ntervenor's argument that when a supervisor is "thinking" about her supervisory responsibilities, the time spent should be placed in the nonsupervisory category on the theory that thinking is not "doing." Frankly, the notion that "thinking" is some sort of mental downtime strikes me as too far fetched to deserve any serious or extended discussion. I reject this contention.

Id.

      The Activity asserts that the RD failed to apply this holding -- that time spent thinking about supervisory activities constitutes time spent exercising supervisory authority -- and instead found that employees must spend a majority of their 24-hour day engaging in supervisory activities.

      In agreement with the RD, we find that the Activity has not presented any evidence demonstrating that the Captains spend a significant amount of time thinking about supervisory duties. See RD's Decision at 11. The only argument the Activity appears to assert in support of this contention is that one of the Captains testified that his evaluation of the performance of his firefighters is not just done when he meets with a firefighter to discuss performance, but it also involves his daily observances of the firefighter. See Application for Review at 3 (citing Tr. at 130). However, the Activity's assertion is not supported by any evidence or argument that the Captain's daily observation of firefighters constitutes the exercise of supervisory authority, that such authority is not merely routine or clerical nature, and that such authority requires the consistent exercise of independent judgment. Moreover, the Activity has not offered any estimation with regard to how much time the Captains actually spend observing firefighters.

      Accordingly, we find that the Activity's assertion does not establish that review is warranted.

3.      The RD did not fail to apply Camp Pendleton.

      Finally, the Activity asserts that the RD failed to apply Camp Pendleton, in which the Authority found that assistant fire chiefs who spent a preponderance of their "active duty time" exercising supervisory authority were supervisors. The Activity also alleges that activities found to be supervisory in that case were found by the RD in the present case to be routine and administrative in nature.

      To the extent the Activity's claim challenges the RD's application of the term "employment time" to the Captains' entire 24-hour shift -- as opposed to their "active duty time" -- as set forth above, the RD found that under either standard, the Captains do not spend a preponderance of their employment time engaged in supervisory authority. Accordingly, the Activity's claim does not establish that review is warranted.

      To the extent the Activity asserts that the Captains engaged in the same type of activities that were found to be supervisory in Camp Pendleton, we reject this assertion. In this regard, the Authority found that the assistant fire chiefs in Camp Pendleton were supervisors because they spent a preponderance of their employment time engaged in the exercise of supervisory authority. Such authority included assigning and temporarily transferring personnel from one engine company to another and frequently visiting fire stations to assure implementation, maintenance, and upkeep of fire [ v61 p544 ] equipment. Here, the Activity has presented no evidence that the Captains engage in such activities.

      In this respect, the activities that the Captains in the present case engage in are more similar to those of the fire captains in Camp Pendleton, who the Authority found were not supervisors. In this regard, in Camp Pendleton, as here, the captains had the authority to direct and assign firefighting personnel in certain situations, but the evidence demonstrated that the exercise of such authority was routine or clerical in nature and did not require the consistent exercise of independent judgment. Similarly, in Camp Pendleton, as in the present case, the captains had no authority to hire, discharge, layoff, transfer, or furlough employees. Also, while the captains in Camp Pendleton had the authority "effectively to recommend" actions with respect to promotions, discipline, and awards, the captains' authority was subject to two higher levels of review. Camp Pendleton, 8 FLRA at 278. In the present case, the RD found that the amount of time the Captains spent performing duties related to performance appraisals, discipline, and hiring has amounted to less than 20 hours in the 8 months since the positions were filled. See RD's Decision at 10. The RD also found that the Captains "do not effectively recommend awards." Id. at 6. Further, the RD found that there have been no grievances, promotions, transfers, furloughs, layoffs, recalls, suspensions, or removals since the Captain positions were filled. See id. at 6. [n9] 

      Accordingly, based on the foregoing, we find that the Activity's claim fails to establish that review is warranted.

V.     Order

      The application for review is denied.


File 1: Authority's Decision in 61 FLRA No. 100
File 2: Opnion of Chairman Cabaniss


Footnote # 1 for 61 FLRA No. 100 - Authority's Decision

   The separate opinion of Chairman Cabaniss, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 100 - Authority's Decision

   Section 2422.31 of the Authority's Regulations provides, in pertinent part:

(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1)      The decision raises an issue for which there is an absence of precedent;
(2)      Established law or policy warrants reconsideration; or
(3)      There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 3 for 61 FLRA No. 100 - Authority's Decision

   While the position description for this position refers to it as "Supervisory Firefighter[,]" Jt. Ex. 5, the Activity's organizational chart for the Fire Department refers to this position as "Station Fire Captain[.]" Jt. Ex. 3.


Footnote # 4 for 61 FLRA No. 100 - Authority's Decision

   Although the Captains work 48-hour shifts, the RD's findings with regard to time references relate to a 24-hour time period. See RD's Decision at 3 n.1.


Footnote # 5 for 61 FLRA No. 100 - Authority's Decision

   § 7103(a)(10) of the Statute defines a supervisor as follows:

"supervisor" means an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment, except that, with respect to any unit which includes firefighters or nurses, the term "supervisor" includes only those individuals who devote a preponderance of their employment time to exercising such authority[.]

(emphasis added.)


Footnote # 6 for 61 FLRA No. 100 - Authority's Decision

   When the Fire Department provides aid to outside fire departments, someone from outside the organization, and not the Captains or the Fire Chief, acts as the incident commander. See RD's Decision at 3.


Footnote # 7 for 61 FLRA No. 100 - Authority's Decision

   As relevant here, § 2422.31 of the Authority's Regulations provides:

(b) Contents. . . . An application must specify the matters and rulings to which exception(s) is taken, include a summary of evidence relating to any issue raised in the application, and make specific reference to page citations in the transcript if a hearing was held . . . .

We find that the content of the application satisfies the Authority's regulatory requirements. The application here provides a sufficient basis -- and sufficient specificity -- on which to base the Authority's rulings. See United States Dep't of the Navy, Human Resources Serv. Ctr. Northwest, Silverdale, Wash., 61 FLRA 408, 411 (2005).


Footnote # 8 for 61 FLRA No. 100 - Authority's Decisio