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) (Authority decision, June 25, 1981)

FLRA remand decision. The Authority returns this unfair labor practice case for additional facts and has not resolved the complaint. This order does not present a final judicial review period under 5 U.S.C. § 7123(a).

Plain-English summary

A Navy shipyard stopped dues allotments for three fire captains after treating their positions as supervisory. The case reached the Authority on a stipulated record. The Authority found that deciding the complaint required facts about their supervisory status under both the former executive order and the later statute, but the record covered only the later period. It returned the case to the regional director for a fuller stipulation or a hearing.

Decision snapshot

• Authority: 5 U.S.C. § 7115, 5 U.S.C. § 7116(a)(1), 5 U.S.C. § 7116(a)(8).
• Outcome: Case remanded for additional facts; complaint remains unresolved.
• Key point: The Authority needed facts under both governing legal periods before deciding the dues complaint.

Full text (FLRA public release)

[ v06 p205 ]

06:0205(34)CA

The decision of the Authority follows:

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(.)