Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire (Activity) and International Association of Fire Fighters, Local F-123 (Petitioner) (Authority decision, June 17, 1981)

Final FLRA representation decision. The Authority directly decided this appropriate unit matter. Under 5 U.S.C. § 7123(a)(2), orders involving appropriate unit determinations under 5 U.S.C. § 7112 are excluded from judicial review.

Plain-English summary

A Portsmouth naval shipyard union sought to include four fire captains in its firefighter bargaining unit. The Authority directly decided the petition, with no regional decision under review. The parties agreed the captains were not supervisors under the later statutory definition, and the Authority found unit clarification was available despite the earlier exclusion. It added the fire captain position to the unit.

Decision snapshot

• Authority: 5 U.S.C. § 7103(a)(10), 5 U.S.C. § 7112(a)(1), 5 U.S.C. § 7123(a)(2).
• Outcome: Fire captain position included in the bargaining unit.
• Key point: A changed statutory definition allowed reconsideration of a position excluded under an earlier certification.

Full text (FLRA public release)

[ v06 p67 ]

06:0067(20)CU

The decision of the Authority follows:

6 FLRA No. 20

DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
PORTSMOUTH, NEW HAMPSHIRE
Activity

and

INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL F-123
Petitioner

Case No. 1-CU-14

DECISION AND ORDER CLARIFYING UNIT

UPON A PETITION DULY FILED UNDER SECTION 7111(B) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) A HEARING WAS
HELD IN THIS CASE 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.

THE PETITIONER SEEKS TO CLARIFY AN EXISTING EXCLUSIVELY RECOGNIZED
UNIT OF FIRE FIGHTERS AND FIRE PREVENTION INSPECTORS AT THE PORTSMOUTH
NAVAL SHIPYARD (THE ACTIVITY) /1/ TO INCLUDE FOUR INDIVIDUALS CLASSIFIED
AS FIRE CAPTAIN (SUPERVISORY FIRE FIGHTER (STRUCTURAL) GS-081-6),
CONTENDING THAT SUCH FIRE CAPTAINS DO NOT EXERCISE SUPERVISORY AUTHORITY
A PREPONDERANCE OF THEIR ON-DUTY TIME AND THEREFORE ARE NOT
"SUPERVISORS" WITHIN THE MEANING OF SECTION 7103(A)(10) OF STATUTE. /2/
THE ACTIVITY CONTENDS THAT A PETITION FOR CLARIFICATION OF UNIT (CU
PETITION) IS AN INAPPROPRIATE VEHICLE FOR DETERMINING THE UNIT STATUS OF
FIRE CAPTAINS (SUPERVISORY FIRE FIGHTERS), WHO HAD BEEN EXPRESSLY
EXCLUDED FROM THE UNIT WHEN CERTIFIED.

THE PARTIES STIPULATED THAT THE FIRE CAPTAINS OR SUPERVISORY FIRE
FIGHTERS ARE NOT SUPERVISORS WITHIN THE MEANING OF SECTION 7103(A)(10)
OF THE STATUTE. IN THIS REGARD THE PARTIES STIPULATED THAT THE FIRE
CAPTAINS (SUPERVISORY FIRE FIGHTERS) DO NOT HIRE, PROMOTE, REWARD,
TRANSFER, FURLOUGH, LAY OFF, RECALL OR REMOVE EMPLOYEES. THE PARTIES
FURTHER STIPULATED THAT ALL GENERAL SCHEDULE FIRE FIGHTERS PERFORM
ACTING FIRE CAPTAIN DUTIES ON A ROTATING BASIS, AND THAT, WHILE THE FIRE
CAPTAINS EXERCISE SOME SUPERVISORY AUTHORITY, THEY SPEND LESS THAN A
PREPONDERANCE OF THEIR EMPLOYMENT TIME IN THE EXERCISE OF SUCH
AUTHORITY.

AS TO THE ACTIVITY'S CONTENTION THAT A PETITION SEEKING CLARIFICATION
OF AN EXISTING CERTIFIED UNIT IS INAPPROPRIATE WHERE THE CLARIFICATION
SOUGHT CONCERNS THE STATUS OF A CATEGORY OF EMPLOYEES SPECIFICALLY
EXCLUDED IN THE EXISTING CERTIFICATION, THE AUTHORITY HAS PREVIOUSLY
FOUND THAT A CLARIFICATION OF UNIT PETITION IS PROPER IN THE
CIRCUMSTANCES OF THIS CASE. /3/ WHERE, AS HERE, THERE IS AN INTERVENING
CHANGED CIRCUMSTANCE, SUCH AS THE PERTINENT CHANGE IN THE DEFINITION OF
"SUPERVISOR" CONTAINED IN THE STATUTE, INCLUDING " . . . ONLY THOSE
INDIVIDUALS WHO DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT TIME TO
EXERCISING SUCH (SUPERVISORY) AUTHORITY . . . ," A UNIT CLARIFICATION
PETITION MAY BE UTILIZED TO RESOLVE ANY RESULTING QUESTION OF STATUS.
SINCE IT HAS BEEN FOUND THAT THE INSTANT PETITION IS APPROPRIATE AND THE
PARTIES HAVE STIPULATED THAT THE FIRE CAPTAINS (SUPERVISORY FIRE
FIGHTERS) ARE NOT SUPERVISORS WITHIN THE MEANING OF THE STATUTE, THEY
WILL BE INCLUDED WITHIN THE BARGAINING UNIT. /4/

ORDER

IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED IN WHICH
EXCLUSIVE RECOGNITION WAS GRANTED TO THE INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL F-123 ON OCTOBER 18, 1977, AT THE DEPARTMENT OF THE
NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE, BE, AND
HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT THE POSITION OF FIRE
CAPTAIN (SUPERVISORY FIRE FIGHTER (STRUCTURAL) GS-081-6).

ISSUED, WASHINGTON, D.C., JUNE 17, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ THE PETITIONER IS THE EXCLUSIVE REPRESENTATIVE OF A UNIT
DESCRIBED AS FOLLOWS:

INCLUDED: ALL FIRE FIGHTERS AND FIRE PREVENTION INSPECTORS EMPLOYED
AT THE PORTSMOUTH

NAVAL SHIPYARD.

EXCLUDED: MANAGEMENT OFFICIALS, PROFESSIONAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL

PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, SUPERVISORY
FIRE FIGHTERS, FIRE

CHIEF, SUPERVISORS AS DEFINED IN THE ORDER AND ALL OTHER EMPLOYEES.

/2/ SECTION 7103(A)(10) OF THE STATUTE DEFINES "SUPERVISOR" AS
FOLLOWS:

"(S)UPERVISOR" 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

(.)

/3/ DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH,
NEW HAMPSHIRE, CASE NO. 1-CU-14 (DECISION ON REQUEST FOR REVIEW, JULY
10, 1980).

/4/ SEE ALSO, DEPARTMENT OF THE ARMY, U.S. ARMY ARMOR CENTER, FORT
KNOX, KENTUCKY, 4 FLRA NO. 20(1980).