Naval Support Activity, Mare Island Naval Shipyard, Vallejo, California (Respondent) and International Association Of Fire Fighters, Local F-48, International Association of Firefighters, AFL-CIO-CLC (Charging Party)  

 6 FLRA No. 34
 
 NAVAL SUPPORT ACTIVITY,
 MARE ISLAND NAVAL SHIPYARD,
 VALLEJO, CALIFORNIA
 Respondent
 
 and
 
 LOCAL F-48, INTERNATIONAL ASSOCIATION
 OF FIREFIGHTERS, AFL-CIO-CLC
 Charging Party
 
                                            Case No. 9-CA-123
 
                           ORDER REMANDING CASE
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO REGIONAL DIRECTOR
 ROBERT G. MAYBERRY'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR
 RELATIONS AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2429.1(A)).  THE RECORD
 CONSISTS OF THE PARTIES' STIPULATION OF FACTS AND EXHIBITS.
 
    THE COMPLAINT ALLEGES THAT ON JANUARY 27, 1979, AND CONTINUING TO
 DATE, THE RESPONDENT HAS VIOLATED SECTION 7116(A)(1) AND (8) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).  /1/
 MORE SPECIFICALLY, THE COMPLAINT ALLEGES THAT COMMENCING ON JANUARY 27,
 1979, THE RESPONDENT STOPPED UNION DUES ALLOTMENTS FOR BARGAINING UNIT
 EMPLOYEES PAUL J. COMEAUX, ITALO A. GONDOLA AND WALTER L. BECK, AND
 THAT, ON JANUARY 27, FEBRUARY 24, AND MARCH 10, 1979, RESPECTIVELY, THE
 RESPONDENT OFFSET OR WITHHELD FROM ALLOTMENT PAYMENTS DUE THE CHARGING
 PARTY, THE AMOUNT OF UNION DUES DEDUCTED FROM THE NAMED EMPLOYEES' PAY
 INASMUCH AS THEY HAD BEEN PROMOTED TO GS-6 FIRE CAPTAIN, A POSITION
 RESPONDENT CLAIMS IS SUPERVISORY.  COMEAUX WAS PROMOTED ON SEPTEMBER 25,
 1977, GONDOLA ON FEBRUARY 12, 1978, AND BECK ON JUNE 18, 1978.  IN
 ADDITION TO NO LONGER WITHHOLDING ALLOTMENTS, RESPONDENT REFUNDED TO THE
 NAMED EMPLOYEES ALL UNION DUES MONIES DEDUCTED FROM THEIR PAY SUBSEQUENT
 TO THE DATE OF THEIR RESPECTIVE PROMOTIONS.  THE CHARGING PARTY
 CONTENDS, INTER ALIA, THAT BY THESE ACTS THE RESPONDENT FAILED TO COMPLY
 WITH SECTION 7115 OF THE STATUTE.  /2/
 
    AT THE OUTSET, THE AUTHORITY NOTES THAT THE NAMED EMPLOYEES WERE
 PROMOTED AT THE TIME EXECUTIVE ORDER 11491, AS AMENDED, WAS IN EFFECT;
 THAT THE RESPONDENT'S STOPPAGE OF DUES ALLOTMENTS FOR THE THREE
 EMPLOYEES OCCURRED AFTER JANUARY 11, 1979, THE EFFECTIVE DATE OF THE
 STATUTE;  AND THAT RESPONDENT'S REFUND OF UNION DUES MONIES ENCOMPASSES
 PERIODS OF TIME DURING WHICH THE EXECUTIVE ORDER AND THEN THE STATUTE
 WERE IN EFFECT.
 
    FURTHER, THE DEFINITION OF "SUPERVISOR" AS IT EXISTED UNDER THE
 EXECUTIVE ORDER /3/ WAS CHANGED BY THE STATUTE.  /4/
 
    THE ISSUES FRAMED BY THE COMPLAINT IN THIS CASE MAKE IT CLEAR THAT
 THE AUTHORITY, IN REACHING A DECISION AND ORDER, MUST MAKE FINDINGS
 REGARDING THE SUPERVISORY STATUS OF THE NAMED EMPLOYEES UNDER BOTH THE
 EXECUTIVE ORDER AND THE STATUTE.  HOWEVER, THE PARTIES' STIPULATION OF
 FACTS AND EXHIBITS FORWARDED TO THE AUTHORITY DEAL ONLY WITH PERIODS OF
 TIME DURING WHICH THE STATUTE WAS IN EFFECT;  THUS, THERE ARE NO FACTS
 PRESENTED WHICH WOULD ENABLE THE AUTHORITY TO MAKE A DETERMINATION OF
 SUPERVISORY STATUS UNDER THE EXECUTIVE ORDER.
 
    ACCORDINGLY, THIS CASE IS REMANDED TO THE REGIONAL DIRECTOR TO SEEK
 TO EXPAND UPON THE PARTIES' STIPULATION OF FACTS AND EXHIBITS SO AS TO
 ENABLE THE AUTHORITY TO ADEQUATELY DEAL WITH THE ISSUES PRESENTED OR, IF
 UNABLE TO OBTAIN A COMPLETE STIPULATION, TO ISSUE A NOTICE OF HEARING IN
 THIS MATTER.
 
    ISSUED, WASHINGTON, D.C., JUNE 25, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7116(A)(1) AND (8) PROVIDES AS FOLLOWS:
 
    SEC. 7116.  UNFAIR LABOR PRACTICES
 
    (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;
 
   .          .          .          .
 
 
    (8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
 CHAPTER.
 
    /2/ SECTION 7115 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 7115.  ALLOTMENTS TO REPRESENTATIVES
 
    (A) IF AN AGENCY HAS RECEIVED FROM AN EMPLOYEE IN AN APPROPRIATE UNIT
 A WRITTEN ASSIGNMENT
 
    WHICH AUTHORIZES THE AGENCY TO DEDUCT FROM THE PAY OF THE EMPLOYEE
 AMOUNTS FOR THE PAYMENT OF
 
    REGULAR AND PERIODIC DUES OF THE EXCLUSIVE REPRESENTATIVE OF THE
 UNIT, THE AGENCY SHALL HONOR
 
    THE ASSIGNMENT AND MAKE AN APPROPRIATE ALLOTMENT PURSUANT TO THE
 ASSIGNMENT.  ANY SUCH
 
    ALLOTMENT SHALL BE MADE AT NO COST TO THE EXCLUSIVE REPRESENTATIVE OR
 THE EMPLOYEE.  EXCEPT AS
 
    PROVIDED UNDER SUBSECTION (B) OF THIS SECTION, ANY SUCH ASSIGNMENT
 MAY NOT BE REVOKED FOR A
 
    PERIOD OF 1 YEAR.
 
    (B) AN ALLOTMENT UNDER SUBSECTION (A) OF THIS SECTION FOR THE
 DEDUCTION OF DUES WITH
 
    RESPECT TO ANY EMPLOYEE SHALL TERMINATE WHEN--
 
    (1) THE AGREEMENT BETWEEN THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE
 INVOLVED CEASES TO BE
 
    APPLICABLE TO THE EMPLOYEE.
 
    /3/ SECTION 2(C) OF EXECUTIVE ORDER 11491, AS AMENDED, PROVIDED AS
 FOLLOWS:
 
    "SUPERVISOR" MEANS AN EMPLOYEE HAVING AUTHORITY, IN THE INTEREST OF
 AN AGENCY, TO HIRE,
 
    TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE, DISCHARGE, ASSIGN,
 REWARD, OR DISCIPLINE OTHER
 
    EMPLOYEES, OR RESPONSIBILITY TO DIRECT THEM, OR TO ADJUST THEIR
 GRIEVANCES, OR EFFECTIVELY TO
 
    RECOMMEND SUCH ACTION, IF IN CONNECTION WITH THE FOREGOING THE
 EXERCISE OF AUTHORITY IS NOT OF
 
    A MERELY ROUTINE OR CLERICAL NATURE, BUT REQUIRES THE USE OF
 INDEPENDENT JUDGMENT(.)
 
    /4/ SECTION 7103(A)(10) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   .          .          .          .
 
 
    (10) "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(.)