United States Department of the Army, U.S. Army Garrison, Fort Lee, Virginia (Agency) and International Association of Firefighters, Local F-287 (Union)

[ v63 p145 ]

63 FLRA No. 58

UNITED STATES
DEPARTMENT OF THE ARMY
U.S. ARMY GARRISON
FORT LEE, VIRGINIA
(Agency)

and

INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS
LOCAL F-287
(Union)

WA-RP-08-0066

_____

ORDER GRANTING
APPLICATION FOR REVIEW

March 20, 2009

_____

Before the Authority:
Carol Waller Pope, Acting Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This case is before the Authority on an application for review filed by the Agency under § 2422.31 of the Authority's Regulations. [n1]  The Union filed an untimely opposition to the Agency's application. [n2] 

      The Union filed a petition seeking to clarify the bargaining unit status of the YN-0081-01 Supervisory Firefighter (Basic Life Support) position (referred to in the Regional Director's (RD's) Decision and here as the Station Chief). The RD determined that the position should be included in the bargaining unit because the incumbents are not supervisors within the meaning of § 7103(a)(10) of the Federal Service Labor-Management Relations Statute (the Statute). [n3] 

      For the reasons that follow, we grant the Agency's application for review. On review, we find that the Station Chiefs devote a preponderance of their employment time to exercising supervisory authority and, as such, are excluded from the bargaining unit under § 7112(b)(1) of the Statute. [n4] 

II.     Background and RD's Decision

A.     Background

      The Union is the certified exclusive representative of a unit of non-supervisory firefighters within the Agency's Fire Department. The Fire Department consists of two stations and operates twenty-four hours per day, seven days per week. With the exception of the Fire Chief, who heads the department, all Fire Department personnel work a 72-hour tour of duty. Each 24-hour shift runs from 7:30 a.m. to 7:30 p.m. the next day and consists of eight hours of active work time and sixteen hours of personal stand-by time. Each tour is normally staffed with an Assistant Chief, a Station Chief, two Captains, and seven firefighters. The Captains and the firefighters report to the Station Chief; the Station Chief reports to the Assistant Chief; and the Assistant Chief reports to the Fire Chief. The Captains and the Firefighters are included in the bargaining unit.

      [ v63 p146 ] The Station Chief position was a new position created under the National Security Personnel System that had been filled for the first time approximately six months prior to the hearing in this case. The two incumbents of the position had both previously been Captains. RD's Decision at 2 n.2. The Union filed a petition seeking to clarify the bargaining unit status of the Station Chief position, arguing that the Agency had removed the two incumbents of that position from the bargaining unit and the General Schedule pay system even though they are not supervisors under § 7103(a)(10) of the Statute. The parties agreed that the testimony of one of the Station Chiefs would be representative of the duties performed by both employees. Id. at 1 n.1 (citing Tr. at 10-11).

      The Station Chiefs are responsible for ensuring that the firefighters perform their duties correctly. Id. at 3. The Station Chiefs assign the Captains to ensure that the firefighters carry out the "daily detail," which entails cleaning the station and verifying that the fire apparatus are in working order. The Station Chiefs "check up" on the firefighters to make sure that the work is being accomplished, but do not assist in carrying out these functions. Id. The Station Chief testified that he spends "probably at least 5 to 10 percent of [his] day . . . walking the floor, making sure [that] things are getting accomplished, redirecting people, and counseling them on why things need to be done, why things need to happen." Id. at 3, 3 n.5 (citing Tr. at 100) (footnote omitted).

      The Station Chiefs are also responsible for preparing and making adjustments to work schedules in order to maintain the minimum staffing requirements of thirteen firefighters per shift. For example, if an employee were to call in sick, then the Station Chief would be required to "juggle the crews," which may entail assigning an employee to work overtime and/or assigning another employee to work the empty position. Id. at 3. Further, the Station Chiefs oversee time and attendance and approve leave requests. The Station Chiefs have the authority to deny leave based on staffing needs. They may also recall personnel in emergencies to maintain staffing levels. The Station Chiefs are also charged with ensuring that all firefighters receive necessary training. Based on their independent judgment and assessment, the Station Chiefs assign duties to a specific firefighter based on that firefighter's knowledge or expertise. Id. For example, the Station Chief testified that, on a weekly basis, he assigns a particular firefighter to check the fire tower based on that firefighter's knowledge and expertise of the fire tower.

      The Station Chiefs are the performance rating officials for a total of approximately seven firefighters and Captains. As such, they meet with the employees at the beginning of the performance year, conduct a six-month progress review of each employee, and evaluate each employee at the end of the performance year. Because the Station Chief who testified had only held his position for approximately six months at the time of the hearing, he had only had the opportunity to perform the initial performance year meetings with employees. Id. at 3-4. The Station Chief testified that he had spent approximately twenty-one hours to prepare for and conduct those meetings. The Station Chiefs can also recommend employees for awards.

      The Station Chiefs also have the authority to discipline employees. In this regard, the Station Chief testified that he had spent a maximum of three hours preparing and issuing two counselings in the six months prior to the hearing. Id. at 4. The Station Chiefs also have the authority to hear and resolve Step 1 grievances. At the time of the hearing, the Station Chiefs had not resolved any grievances. In addition, the Station Chiefs have the authority to sit on hiring panels and make hiring recommendations to the Fire Chief. At the time of the hearing, the Station Chiefs had not participated in any hiring panels. The Station Chiefs do not have the authority to discharge, layoff, transfer, or furlough employees.

      According to the RD, the Station Chiefs perform duties that are directly related to fire safety and unrelated to their supervision of other employees. Id. In this regard, the Station Chiefs are responsible for the vehicle maintenance program and the hazardous material program. In carrying out these responsibilities, the Station Chiefs ensure that all apparatus and equipment are operational at all times and coordinates maintenance activities. They ensure that all hazardous material response equipment and vehicles are operational at all times and oversee the design and implementation of an improved response unit. In addition, the Station Chiefs respond to emergency calls and "assume responsibility for operations at the scene until the Assistant Chief arrives." Id.

B.     RD's Decision

      The RD stated that in order to establish that a firefighter is a supervisor under the Statute, the following three-part test must be satisfied: (1) the employee must have the authority to engage in any one of the twelve supervisory functions enumerated in § 7101(a)(10) of the Statute; (2) "the exercise of th[at] authority is not merely routine or clerical in nature[,] but requires the consistent exercise of independent judgment"; and [ v63 p147 ] (3) the employee devotes a majority of his or her employment time to exercising such authority. Id. at 5 (citing United States Dep't of the Army, Womack Army Med. Ctr., Fort Bragg, N.C., 63 FLRA 22 (2008)).

      First, the RD found that the Station Chiefs have the authority to engage in the following supervisory functions: assigning work, directing employees, assigning overtime, recalling employees, disciplining employees, adjusting grievances, recommending employees for awards, and evaluating employees' work performance. RD's Decision at 6.

      Second, the RD found that the Station Chiefs' exercise of that supervisory authority is not merely routine or clerical in nature. Id. In this regard, the RD found that the Station Chiefs exercise independent judgment in deciding whether to discipline firefighters, in determining how to adjust grievances, and in evaluating employee performance. In addition, the RD found that in assigning and directing employees' work, the Station Chiefs are required to assess, among things, the relative skills, training, and experience of employees, as well as their workload and work priorities. Id.

      Third, considering only their "active work time," the RD found that the Station Chiefs do not devote a preponderance of their employment time to exercising supervisory authority. Id. The RD found that the Station Chief had only exercised his authority to discipline employees "sporadically" and had devoted approximately three hours over a six-month period to carrying out this task. Id. The RD also found "little use, if any," of the Station Chief's authority to assign overtime and recall employees. Id. at 6-7. Further, the RD found that the Station Chief had not "exercised at all" his authority to adjust grievances and recommend awards over the six-month period he had held the Station Chief position. Id. Acknowledging that performance evaluation is an ongoing responsibility, the RD found that the Station Chief had only spent approximately twenty-one hours over a six-month period carrying out this function. Id.

      In addition, the RD found that the Station Chief did not spend more than half of his active work time directing and assigning employees. According to the RD, the Station Chief's testimony that "he spends `at least 50 percent' of his day on supervisory duties . . . , standing alone, is not sufficient to establish supervisory status." Id. at 7 (quoting Tr. at 49) (footnote omitted). The RD found that "at least 50 percent" of the Station Chief's time is not a majority of the Station Chief's time. Id. (quoting Tr. at 49). The RD further found that the Station Chief's testimony was "conclusionary in nature" and was not sufficient to establish supervisory status. Id. (citation omitted). The RD stated that supervisory status is established by "detailed supporting evidence showing that the firefighter spends more than half of his . . . active work time exercising supervisory authority with the requisite independent judgment." Id. (citing United States Dep't of the Army, Parks Reserve Training Ctr., Dublin, Cal., 61 FLRA 537, 541-43 (2006) (Parks Reserve) (Chairman Cabaniss dissenting in part)). According to the RD, the Station Chief failed to meet this standard and offered varying estimates as to the amount of time he spent on supervisory functions. Id. Specifically, the RD found that the Station Chief "estimated that he spent about 25 percent of his time on supervisory duties." Id. (citing Tr. at 84). The RD further found that the Station Chief spends "on average" about "5 to 10 percent of the day" directing and assigning employees. Id. (citing Tr. at 100, 101). Considering the Station Chief's testimony as a whole, the RD concluded that he did not spend more than half of his work time on supervisory functions.

      Based on the foregoing, the RD concluded that the Station Chiefs are not supervisors within the meaning of § 7103(a)(10) of the Statute and should be included in the bargaining unit. Id. at 7.

III.     Agency's Application for Review

      The Agency argues that the Authority's decision in Parks Reserve requires reconsideration because, in that case, the Authority did not specifically determine whether the term "employment time" in § 7103(a)(10) of the Statute means an employee's 24-hour shift or the active duty portion of that shift. The Agency urges the Authority to consider only an employee's active duty time, and, under this standard, asserts that the Station Chiefs devote a preponderance of their employment time to performing supervisory duties.

      The Agency also contends that the RD's characterization of the Station Chief's testimony "paints an inaccurate and incomplete picture" of the incumbent's duties, and, in at least one instance, the RD improperly drew a negative inference against the Agency based on his misinterpretation of the Station Chief's testimony. Application for Review at 16. Specifically, the Agency asserts that the RD erroneously found that the Station Chief testified that "he spent about 25 percent of his time on supervisory duties." Id. (quoting RD's Decision at 7 (citing Tr. at 84)). According to the Agency, the Station Chief actually testified that his supervisory duties "have increased at least 25 percent from what [he] used to do . . . ." Id. (quoting Tr. at 84).

      [ v63 p148 ] Further, the Agency asserts that the RD improperly discounted the Station Chief's testimony that he spends "at least 50 percent" of his day on supervisory duties. Id. at 17 (citation omitted). In this regard, the Agency argues that the RD did not properly consider the Station Chief's complete testimony that "at least 50 percent of [his day] is [spent in] supervision . . . and the other portion of it is either spen[t] [in] administrative duties or in support of those supervisory tasks . . . ."  [n5]  Id. at 17 (quoting Tr. at 49).

IV.     Analysis and Conclusions

A.     Authority precedent does not warrant reconsideration.

      As set forth above, with respect to firefighters, § 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." 5 U.S.C. § 7103(a)(10). The Agency claims that Parks Reserve, 61 FLRA 537, warrants reconsideration because the Authority did not clarify in that case whether the term "employment time" in § 7103(a)(10) means an employee's 24-hour shift or an employee's active duty time. For the reasons that follow, we reject the Agency's claim.

      In Parks Reserve, the Authority held that the term "employment time" in § 7103(a)(10) means "work time as determined by the record in a particular case." 61 FLRA at 542. Applying this precedent here, the RD found, and the parties agree, that only the Station Chief's active duty time was, and should have been, considered in determining whether he devotes a preponderance of his employment time to supervisory duties. In these circumstances, we conclude, for purposes of this decision, that "employment time" means the Station Chiefs' active work time. See id.; see also United States Dep't of the Navy, Marine Corps Base, Camp Pendleton, Cal., 8 FLRA 276, 278 (1982) (for firefighters working a 24-hour shift, "employment time" means their "active duty time"); Phila. Naval Shipyard, 4 FLRA 484, 485, 487 (1980) (interpreting "employment time" for firefighters working 24-hour shifts composed of 8 hours active duty, 8 hours standby, and 8 hours sleep time as "workday"). Accordingly, we find that Authority precedent does not warrant reconsideration.

B.     The RD committed a clear and prejudicial error concerning a substantial factual matter.

      The RD found that the Station Chief "estimated that he spent about 25 percent of his time on supervisory duties[.]" RD's Decision at 7 (citing Tr. at 84). As argued by the Agency, the Station Chief actually testified that his supervisory duties "have increased at least 25 percent[.]" Tr. at 84. Thus, the RD erroneously stated that the Station Chief testified that "he spent about 25 percent of his time on supervisory duties[,]" RD's Decision at 7 (citing Tr. at 84), when, in fact, the Station Chief testified that his supervisory duties "have increased at least 25 percent[.]" Tr. at 84.

      In finding that the Station Chief does not devote a preponderance of his employment time to supervisory duties, the RD also rejected the Station Chief's testimony that "at least 50 percent" of his day is in supervision. RD's Decision at 7 (quoting Tr. at 49). In so doing, the RD failed to note the Station Chief's testimony that "at least 50 percent of [his day] is [in] supervision . . . and the other portion of it is either spent [in] administrative duties or in support of those supervisory tasks . . . ." Tr. at 49. Accordingly, the RD erred in basing his decision, in part, on the Station Chief's testimony that he spends "at least 50 percent" of his day in "supervision" without also including the testimony that "the other portion of the day is either spent [in] administrative duties or in support of those supervisory tasks . . . ." Id.

      As the RD's errors, particularly the latter one, support a conclusion that, contrary to the RD's ultimate conclusion, the Station Chiefs do, in fact, spend a preponderance of their active duty time performing supervisory duties, these factual errors demonstrate that review is warranted. On review, as the evidence demonstrates that the Station Chiefs perform supervisory duties a preponderance of the time, the Station Chiefs should be excluded from the bargaining unit as supervisors under § 7112(b)(1) of the Statute.

V.     Order

      The Agency's application for review is granted. On review, we find that the Station Chiefs should be excluded from the bargaining unit as supervisors under § 7112(b)(1) of the Statute.



Footnote # 1 for 63 FLRA No. 58 - 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 # 2 for 63 FLRA No. 58 - Authority's Decision

   The Agency's application for review was served on the Union by mail on January 30, 2009. Accordingly, any timely opposition to the application had to be either postmarked by the U.S. Postal Service, or filed in person or by commercial delivery with the Authority, no later than February 17, 2009. 5 C.F.R. §§ 2422.31(d), 2429.21(a) and (b), 2429.22, 2429.24(a) and (e). As the Union's opposition was post-marked March 3, 2009, it is untimely and has not been considered.


Footnote # 3 for 63 FLRA No. 58 - Authority's Decision

   5 U.S.C. § 7103(a)(10) provides:

"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[.]

Footnote # 4 for 63 FLRA No. 58 - Authority's Decision

   As relevant here, § 7112(b)(1) provides that "[a] unit shall not be determined to be appropriate . . . if it includes . . . any management official or supervisor[.]"


Footnote # 5 for 63 FLRA No. 58 - Authority's Decision

   In addition, the Agency