Philadelphia Naval Shipyard (Activity) and International Association of Fire Fighters, Local F-61, AFL-CIO (Labor Organization/Petitioner)

 4 FLRA No. 67
 
 PHILADELPHIA NAVAL SHIPYARD
 Activity
 
 and
 
 INTERNATIONAL ASSOCIATION OF
 FIREFIGHTERS, LOCAL F-61, AFL-CIO
 Labor Organization/Petitioner
 
                                            Case No. 23-CU-23
 
                    DECISION AND ORDER CLARIFYING UNIT
 
    UPON A PETITION DULY FILED UNDER SECTION 7111(B)(2) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101-7135, A
 HEARING WAS HELD BEFORE A HEARING OFFICER OF THE AUTHORITY.  THE HEARING
 OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
 AND ARE HEREBY AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THE SUBJECT CASE, THE AUTHORITY FINDS:  THE
 PETITIONER SEEKS TO CLARIFY AN EXISTING EXCLUSIVELY RECOGNIZED UNIT OF
 ALL GRADED NON-SUPERVISORY FIREFIGHTERS AND INSPECTORS IN THE FIRE
 BRANCH OF THE SECURITY DIVISION OF THE ACTIVITY'S ADMINISTRATIVE
 DEPARTMENT /1/ TO INCLUDE SIX EMPLOYEES CURRENTLY CLASSIFIED AS
 SUPERVISORY FIREFIGHTER, GS-6, (CAPTAIN), CONTENDING THAT THESE
 EMPLOYEES ARE NOT SUPERVISORS WITHIN THE MEANING OF SECTION 7103(A)(10)
 OF THE STATUTE.  THE ACTIVITY CONTENDS THAT THE INCUMBENTS IN THE
 SUBJECT POSITIONS ARE SUPERVISORS WITHIN THE MEANING OF SECTION
 7103(A)(10) OF THE STATUTE AND, ON THIS BASIS, OPPOSES THEIR INCLUSION
 IN THE RECOGNIZED UNIT.  SECTION 7103(A)(10) DEFINES 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;
 
    THE FIRE BRANCH IS COMPOSED OF ONE FIRE CHIEF, TWO ASSISTANT CHIEFS,
 SIX CAPTAINS, TWENTY-NINE FIREFIGHTERS, AND FIVE INSPECTORS.  THE
 INSPECTORS AND THE FIRE CHIEF WORK EIGHT HOUR DAYS, MONDAY THROUGH
 FRIDAY, EXCEPT FOR TUESDAY WHEN THE FIRE CHIEF WORKS AN ADDITIONAL
 SIXTEEN HOURS BECAUSE BOTH THE ASSISTANT CHIEFS ARE OFF.  THE ASSISTANT
 CHIEFS, CAPTAINS, AND FIREFIGHTERS ARE DIVIDED EVENLY INTO TWO PLATOONS,
 WITH EACH PLATOON WORKING ALTERNATE 24 HOUR SHIFTS COMPRISED OF EIGHT
 HOURS OF ACTIVE DUTY, EIGHT HOURS STANDBY, AND EIGHT HOURS SLEEP,
 BARRING EMERGENCIES.  AT ANY GIVEN TIME, ONE ASSISTANT CHIEF IS ON DUTY
 ALONG WITH ONE CAPTAIN AND 5-6 FIREFIGHTERS AT ENGINE COMPANY NO. 1, ONE
 CAPTAIN AND 5-6 FIREFIGHTERS AT ENGINE COMPANY NO. 2, AND ONE CAPTAIN
 AND 4-5 FIREFIGHTERS AT LADDER COMPANY NO. 1.
 
    THE FIRE CHIEF IS THE PRIMARY SUPERVISORY OFFICIAL AND IS RESPONSIBLE
 FOR DIRECTING THE ADMINISTRATIVE OPERATION OF THE FIRE BRANCH.  THE
 ASSISTANT CHIEFS ARE RESPONSIBLE FOR SUPERVISING THEIR RESPECTIVE
 PLATOONS.  USUALLY THE ASSISTANT CHIEF WILL RESPOND TO FIRE ALARMS,
 ALONG WITH HIS FIREFIGHTING PERSONNEL.  WHEN HE DOES, HE IS IN CHARGE OF
 DIRECTING THE FIREFIGHTING OPERATION.  ON A ROTATIONAL BASIS, CAPTAINS
 FILL IN FOR ASSISTANT CHIEFS APPROXIMATELY EIGHT PERCENT OF THEIR
 WORKING TIME.
 
    THE CAPTAINS, UNLIKE OTHER FIREFIGHTERS BELOW THEM, WEAR DIFFERENT
 UNIFORMS AND ARE REQUIRED TO TAKE NINETY-TWO HOURS OF SUPERVISORY
 TRAINING WITHIN SIX MONTHS OF THEIR APPOINTMENT.  AS CAPTAINS, THEY ARE
 IN CHARGE OF THE ROUTINE OPERATION OF THE FIREFIGHTING COMPANY TO WHICH
 THEY ARE ASSIGNED, ALTHOUGH THEY ROTATE REGULARLY FROM ONE COMPANY TO
 ANOTHER.  EACH DAY, ROUTINE TASKS WITHIN THE FIRE COMPANY ARE ASSIGNED
 BY THE CAPTAIN TO THE VARIOUS FIREFIGHTERS ON A ROTATING BASIS. THE
 CAPTAIN DOES NOT WORK ALONG WITH THE FIREFIGHTERS IN ACCOMPLISHING THESE
 TASKS, NOR DOES HE PROVIDE IMMEDIATE SUPERVISION DURING THEIR
 ACCOMPLISHMENT.  INSTEAD, HE MAY GO TO THE COMMON OFFICE SHARED BY ALL
 THE CAPTAINS AND DO SUCH PAPERWORK AS MAINTAINING RECORDS FOR PAY
 PURPOSES, PREPARING THE NEXT SHIFT'S DUTY ROSTER, OR PREPARING AN
 OVERTIME ROSTER.
 
    THE DAY'S ROUTINE USUALLY CALLS FOR A THIRTY MINUTE TRAINING SESSION,
 GIVEN BY THE CAPTAIN TO THE FIREFIGHTERS, FOLLOWED BY THE ENTIRE
 COMPANY'S GOING INTO THE FIELD TO CONDUCT INSPECTIONS OF THE BUILDINGS
 THAT THE FIRE PREVENTION OFFICE HAS SCHEDULED.  IN CONDUCTING THESE
 INSPECTIONS, THE CREW DISPERSES THROUGHOUT THE BUILDING WITH EACH
 INDIVIDUAL, INCLUDING THE CAPTAIN, RESPONSIBLE FOR CHECKING THE FIRE
 SAFETY OF A PORTION OF THE BUILDING.  AFTER CONCLUDING THE INSPECTION,
 FIREFIGHTERS MAY WRITE UP THEIR INDIVIDUAL ASPECTS OF THE REQUIRED
 REPORT, WITH THE CAPTAIN SIGNING OFF ON THEIR FINDINGS, OR THE CAPTAIN
 MIGHT COMPOSE THE REPORT IN ITS ENTIRETY.  THE AFTERNOON MAY FIND THE
 COMPANY GOING OUT ON MORE BUILDING INSPECTIONS, OR THE CAPTAIN MAY GO
 OFF ON HIS OWN TO ISSUE "HOT WORK" PERMITS.  THIS INVOLVES INSPECTING
 THE PREMISES OF A WORKSITE TO INSURE THAT IT IS SAFE FOR FIRE PRODUCING
 ACTIVITIES, SUCH AS WELDING.  WHILE THE CAPTAIN IS DOING THIS, HIS CREW
 MIGHT BE DOING MORE ROUTINE DUTIES AT THE FIRE COMPANY.
 
    WHEN AN ALARM SOUNDS, AND THE INSTALLATION HAS AN AVERAGE OF 4-6
 ALARMS IN A TWENTY-FOUR HOUR DAY WITH EACH ALARM TAKING AN AVERAGE OF 45
 MINUTES OUT OF THE WORKDAY, THE CAPTAIN AND CREW RESPOND, AS DOES AN
 ASSISTANT CHIEF.  THE ASSISTANT CHIEF MAY ASSIGN A SPECIFIC PORTION OF
 THE FIRE CONTROL EFFORT TO THE CAPTAIN, WHO THEN SUBDIRECTS THE EFFORT.
 THERE HAVE BEEN OCCASIONS WHEN A CAPTAIN WILL BE THE SENIOR FIREFIGHTER
 AT THE FIRE, IN WHICH CASE HE DIRECTS THE FIREFIGHTING EFFORT.
 
    THE CAPTAINS DO NOT HIRE, PROMOTE, SUSPEND, REMOVE, TRANSFER,
 FURLOUGH, LAYOFF OR RECALL EMPLOYEES.  HOWEVER, IN THE AREA OF
 PROMOTIONS, CAPTAINS DO FILL OUT AN APPRAISAL FORM ON THOSE CURRENT
 EMPLOYEES SEEKING THE PROMOTION, AS DOES AN ASSISTANT CHIEF.  THESE
 FORMS ARE USED BY THE RATING AND RANKING PANEL TO DETERMINE A LIST OF
 CANDIDATES FROM WHICH THE FIRE CHIEF MAKES HIS SELECTION.  WHEREAS,
 CAPTAINS PERFORM THE FIRST LEVEL OF REVIEW WITH REGARD TO ANNUAL
 PERFORMANCE APPRAISALS, THE ASSISTANT CHIEF, THE SECOND LEVEL OF REVIEW,
 RETAINS THE RIGHT TO REVISE ANY EVALUATIONS.  A CAPTAIN'S PROPOSED
 DENIAL OF A WITHIN GRADE INCREASE IS REVIEWABLE AND PASSED UPON BY THE
 FIRE CHIEF.  ANY APPEAL OF SUCH AN ACTION WOULD BE LODGED WITH THE FIRE
 CHIEF.  ALTHOUGH CAPTAINS HAVE THE AUTHORITY TO WRITE LETTERS OF
 COMMENDATION, THE RECORD INDICATES THAT ON AT LEAST TWO OCCASIONS WHERE
 A CAPTAIN RECOMMENDED MONETARY AWARDS FOR FIREFIGHTERS, THESE
 RECOMMENDATIONS WERE DENIED.  THE RECORD FURTHER INDICATES THAT CAPTAINS
 HAVE EFFECTIVELY RECOMMENDED THE DETAILING OF FIREFIGHTERS TO THE JOB OF
 DRIVER/OPERATOR, BUT THAT OTHER RECOMMENDED TRANSFERS OF PERSONNEL MUST
 BE REVIEWED AND APPROVED BY THE ASSISTANT CHIEF.
 
    IN TERMS OF DISCIPLINE, CAPTAINS ISSUE LETTERS OF CAUTION, LETTERS OF
 REPRIMAND, AND SUSPENSIONS OF UP TO TWO DAYS.  MORE SEVERE DISCIPLINE
 MUST BE PROPOSED BY THE ASSISTANT CHIEF, EXCEPT IN THE CASE OF
 PROBATIONARY EMPLOYEES WHERE CAPTAINS MAY PROPOSE THEIR TERMINATION TO
 THE FIRE CHIEF.  CAPTAINS, HOWEVER, MAY BE THE INDIVIDUALS THAT CONDUCT
 MANAGEMENT'S PRELIMINARY INVESTIGATION INTO WHETHER DISCIPLINARY ACTIONS
 ARE WARRANTED.  ALL DISCIPLINARY ACTIONS UP TO THIRTY DAY SUSPENSIONS
 ARE APPEALABLE SOLELY UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, WITH THE
 FIRST STEP FOR SUCH APPEALS BEING THE ASSISTANT CHIEF.  ALTHOUGH THE
 CAPTAIN IS THE FIRST STEP IN THE NEGOTIATED GRIEVANCE PROCEDURE FOR
 "PERSONAL" TYPES OF GRIEVANCES, SUCH AS UNFAIR ROTATION OF WORKLOAD, TO
 DATE SUCH GRIEVANCES HAVE BEEN UNNECESSARY BASED ON THE UNION'S INFORMAL
 RESOLUTION OF THE DISPUTES WITH THE CAPTAINS.  A CAPTAIN, ON HIS OWN
 AUTHORITY, HAS DOCKED AN EMPLOYEE ONE HOUR FOR REPORTING TO WORK TWENTY
 MINUTES LATE.
 
    THE FIRE CHIEF HOLDS PERIODIC STAFF MEETINGS WITH THE ASSISTANT
 CHIEFS AND CAPTAINS.  WHILE THE FIRE CHIEF IS RESPONSIBLE FOR SETTING
 BRANCH POLICY, HE MAY ASK THE CAPTAINS TO SUGGEST EQUIPMENT PURCHASES,
 TRAINING PRIORITIES, OR ALTERATION OF THE DAILY FIREFIGHTER DUTIES.  ON
 THEIR OWN AUTHORITY CAPTAINS MAY ALTER THE PLACEMENT OF FIRE EQUIPMENT
 ON THE FIRE APPARATUS OR, WHERE A SHIFT IS SHORT, ORDER MANDATORY
 OVERTIME FROM A PREDETERMINED ROSTER BASED ON EQUITABLE ROTATION OF
 OVERTIME.  ADDITIONALLY, ON HIS OWN AUTHORITY, A CAPTAIN MAY GRANT
 OFFICIAL TIME TO AN EMPLOYEE FOR UNION REPRESENTATION ACTIVITIES.
 
    AS PREVIOUSLY INDICATED THE FEDERAL LABOR-MANAGEMENT RELATIONS
 STATUTE, SECTION 7103(A)(10), PROVIDES THAT IN DETERMINING THE
 SUPERVISORY STATUS OF A FIREFIGHTER, A MORE PARTICULAR STANDARD OF
 ASSESSMENT WILL BE APPLIED AS COMPARED TO THE OTHER EMPLOYEES.  SECTION
 7103(A)(10) STATES:
 
    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 (SUPERVISORY) AUTHORITY;
 
    THE RECORD REVEALS THAT FIRE CAPTAINS POSSESS SEVERAL INDICIA OF
 SUPERVISORY AUTHORITY.  THESE INCLUDE THEIR AUTHORITY TO FILL IN FOR THE
 ASSISTANT CHIEFS, ISSUE UP TO TWO DAY SUSPENSIONS, PARTICIPATE IN THE
 NEGOTIATED GRIEVANCE PROCEDURE FOR "PERSONAL" TYPES OF GRIEVANCES, AND
 GRANT OFFICIAL TIME FOR LABOR-MANAGEMENT REPRESENTATION ACTIVITIES.
 HOWEVER, THE RECORD FURTHER REVEALS THAT A PREPONDERANCE OF THEIR
 WORKDAY DOES NOT INVOLVE THE EXERCISE OF SUPERVISORY AUTHORITY;  BUT
 RATHER IS SPENT PERFORMING ROUTINE ADMINISTRATIVE AND CLERICAL DUTIES,
 CONDUCTING BUILDING INSPECTIONS ALONG WITH THE FIREFIGHTERS, ISSUING
 "HOT WORK" PERMITS WITHOUT THE ACCOMPANIMENT OF THE FIREFIGHTERS, AND
 RESPONDING TO ALARMS WHERE THE ASSISTANT CHIEF DIRECTS THE FIREFIGHTING
 EFFORT.
 
    THE AUTHORITY THUS FINDS THAT ALTHOUGH CERTAIN ASPECTS OF THE FIRE
 CAPTAINS' FUNCTION MAY INVOLVE SUPERVISORY RESPONSIBILITIES REQUIRING
 THE EXERCISE OF INDEPENDENT JUDGMENT, THEY ARE NOT SUPERVISORS UNDER THE
 MEANING OF SECTION 7103(A)(10) OF THE STATUTE, IN THAT THEY DO NOT
 DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT TIME IN THE EXERCISE OF SUCH
 RESPONSIBILITIES.  ACCORDINGLY, THE AUTHORITY FINDS FIRE CAPTAINS
 SERVING IN THE FIRE BRANCH OF THE SECURITY DIVISION OF THE ACTIVITY'S
 ADMINISTRATIVE DEPARTMENT ARE NOT SUPERVISORS WITHIN THE MEANING OF THE
 STATUTE, AND WILL BE INCLUDED WITHIN THE BARGAINING UNIT.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED, IN WHICH
 EXCLUSIVE RECOGNITION WAS GRANTED TO THE INTERNATIONAL ASSOCIATION OF
 FIREFIGHTERS, LOCAL F-61, ON MARCH 17, 1968, AT THE PHILADELPHIA NAVAL
 SHIPYARD, BE AND HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT THE
 POSITION OF SUPERVISORY FIREFIGHTER, GS-6 (FIRE CAPTAIN).
 
    ISSUED, WASHINGTON, D.C., OCTOBER 17, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED:
 
    MR. JOSEPH J. DALLAS
 
    SENIOR LABOR RELATIONS ADVISOR
 
    NAVAL CIVILIAN PERSONNEL COMMANDER
 
    NORTHERN FIELD DIVISION
 
    BUILDING 75
 
    NAVAL BASE
 
    PHILADELPHIA, PENNSYLVANIA 19112
 
    MR. FRED E. SCHILLREFF
 
    FEDERAL STAFF REPRESENTATIVE
 
    INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO
 
    1750 NEW YORK AVENUE, N.W.
 
    WASHINGTON, D.C.  20006
 
    MR. JAMES MCGINLEY
 
    PRESIDENT
 
    INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,
 
    LOCAL F-61, AFL-CIO
 
    206 SPRING VALLEY ROAD
 
    DARBY, PENNSYLVANIA 19023
 
    MR. RONALD T. SMITH
 
    REGIONAL DIRECTOR
 
    REGION 2
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    26 FEDERAL PLAZA, ROOM 241
 
    NEW YORK, NEW YORK 10007
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE PETITIONER WAS RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE IN
 THE UNIT INVOLVED ON MARCH 17, 1968.