[ v17 p394 ]
17:0394(63)CA
The decision of the Authority follows:
17 FLRA No. 63
DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1592, AFL-CIO
Charging Party
Case No. 7-CA-535
DECISION AND ORDER
The Chief Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Chief Judge further found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of the complaint as
to those allegations. Thereafter, the General Counsel filed exceptions
to the Chief Judge's Decision, and the Respondent filed an opposition to
the General Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Chief Judge's Decision and the entire record, the Authority adopts the
Chief Judge's findings, conclusions and recommended Order, as modified
herein.
The Authority adopts the Chief Judge's findings and conclusion that
the Respondent violated section 7116(a)(1) and (5) of the Statute, /1/
as it was obligated to bargain over the impact and implementation of its
decision to discontinue its past practice of paying employees on the
overtime graveyard shift for duty-free meal breaks. The Authority also
finds in agreement with the conclusion of the Chief Judge that the
Respondent had no obligation to bargain over its decision to eliminate
the 20 minute paid duty-free meal break on its overtime graveyard shift.
The Respondent based its refusal to bargain over its decision in this
regard on, inter alia, 5 U.S.C. 5544, /2/ which deals with overtime
rates and provides that employees are "entitled to overtime pay only for
hours of duty, exclusive of eating and sleeping time, in excess of 40
hours a week." Thus, the Authority finds that inasmuch as employees on
the overtime graveyard shift did not work during their meal periods,
payment for such work would be contrary to law, i.e., 5 U.S.C. 5544.
/3/ Therefore, the Authority finds that the Respondent had no obligation
to bargain involving the decision to eliminate the 20 minute paid
duty-free meal break. See Department of the Interior, U.S. Geological
Survey, Conservation Division, Gulf of Mexico Region, Metairie,
Louisiana, 9 FLRA 543 (1982).
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
Department of the Air Force, Air Force Logistics Command, Ogden Air
Logistics Center, Hill Air Force Base, Utah, shall:
1. Cease and desist from:
(a) Discontinuing the practice of paying employees assigned to
overtime graveyard shifts for the time spend on duty-free meal breaks,
without first notifying the American Federation of Government Employees,
Local 1592, AFL-CIO, the employees' exclusive representative, and
affording it an opportunity to bargain concerning the impact and
implementation of such action.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, negotiate with the American Federation of
Government Employees, Local 1592, AFL-CIO, the exclusive representative
of its employees, concerning the impact and implementation of
discontinuing the practice of paying employees assigned to overtime
graveyard shifts for the time spent on duty-free meal breaks.
(b) Post at its facilities at Department of the Air Force, Air Force
Logistics Command, Ogden Air Logistics Center, Hill Air Force Base,
Utah, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Commanding Officer of the Air Logistics Center,
or his designee, and shall be posted and maintained for 60 consecutive
days thereafter in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allegations of the complaint
found to be without merit be, and they hereby are, dismissed.
Issued, Washington, D.C., April 4, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discontinue the practice of paying employees assigned to
overtime graveyard shifts for the time spent on duty-free meal breaks
without notifying the American Federation of Government Employees, Local
1592, AFL-CIO, the exclusive representative of our employees, and
affording it an opportunity to bargain concerning the impact and
implementation of such action. WE WILL NOT in any like or related
manner interfere with, restrain, or coerce our employees in the exercise
of their rights assured by the Statute. WE WILL, upon request,
negotiate with the American Federation of Government Employees, Local
1592, AFL-CIO, the exclusive representative of our employees, concerning
the impact and implementation of discontinuing the practice of paying
employees assigned to overtime graveyard shifts for the time spent on
duty-free meal breaks.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region VII,
Federal Labor Relations Authority, whose address is: 1531 Stout Street,
Suite 301, Denver, Colorado 80202, and whose telephone number is: (303)
837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-535
Clare A. Jones, Esq.
S. Reed Murdock, Esq.
For the Respondent
James J. Gonzales, Esq.
For the General Counsel
William E. Wade
James R. Rosa, Esq.
On Brief: Joe Goldberg, Esq.
For the Charging Party
Before: JOHN H. FENTON, Chief Administrative Law Judge
Chief Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute (5 U.S.C. 7101 et seq.) and the Final Rules and
Regulations issued thereunder (5 C.F.R. 2423.14 et seq.). It is based
on a Stipulation of Facts submitted by the parties following issuance of
a Complaint by the Regional Director of Region VII, Federal Labor
Relations Authority. At issue is whether Respondent violated Sections
7116(a)(1) and (5) when it unilaterally discontinued its practice of
providing employees on the overtime graveyard shift with a 20-minute
paid meal break, substituting therefor a 30-minute unpaid meal break.
The Facts
The employees assigned to the eight-hour graveyard shift of
Respondent's Metal Processing Shop were, until February 22, 1980,
provided with a paid, 20-minute meal break. On that day, Respondent
instituted, for employees on the irregularly scheduled overtime
graveyard shift an eight and one-half hour tour of duty which included a
30-minute unpaid meal break. Employees on the regular (non-overtime)
graveyard shift continued to receive a paid meal break. Respondent
discontinued the overtime paid break without notice to the Union, thus
depriving it of any "reasonable opportunity to request bargaining over
substance, impact and/or implementation" of the change. Such meal
breaks were never permitted to be taken "at or near the work station"
because of safety and health hazards arising from the chemicals used.
Air Force Regulation 40-610 (1971) provides, in relevant part:
Lunch (or other meal) periods, during which the employee is
entirely free of the duties of his position are not considered as
duty time for which compensation is paid. When more than one
8-hour shift is in operation during a 24-hour period and an
overlapping of shifts to permit time off for lunch is not
feasible, an on-the-job lunch period of 20 minutes or less may be
authorized and included in the regular scheduled tour of duty.
Workers must spend their on-the-job lunch period at or near their
work stations. Under these conditions, the time covered by the 20
minutes on-the-job lunch period is compensable. Where one or two
shifts are in operation, the supervisor generally schedules time
for lunch apart from the hours of duty. Duty free lunch periods
during periods of overtime work are not compensable time.
Discussion and Conclusions
The General Counsel asserts that Respondent violated its duty to
negotiate with the Union as to the substance, impact and implementation
of its decision, and requests that a status quo ante order be entered
which would require Respondent to maintain the preexisting schedule
"until such time as a modification of that schedule is mutually agreed
upon with the Union or ordered modified by lawful authority pursuant to
the Statute". The Charging Party, pointing inappropriately to four
cases involving Respondent which were resolved by settlement as evidence
of past violations, /4/ seeks payment of wages it asserts were
wrongfully withheld as well as restoration of the status quo ante. /5/
Respondent virtually concedes that a violation occurred, but argues
that the change was required by law (5 U.S.C. 5542(a) and 5544) and
regulation, and that there existed mitigating factors (not reflected in
the Stipulation and hence disregarded,) which militate against such a
finding. The real thrust of its argument is that a return to the status
quo ante would require it to resume an unlawful course of conduct under
5 U.S.C. 5542(a) and 5544 as construed in Rapp v US, 340 F.2d 635, 167
Ct.Cl. 852 (1964), Ayres v U.S. 186 Ct.Cl. 350 (1968), and Comptroller
General Decisions to be found at 42 CG 195, 46 CG 217 and 47 CG 358.
These cases construed 5 U.S.C. 911 and 913, forerunners of Sections 5542
and 5544, which are identical in relevant respect. They are cited for
the proposition that overtime spent in or available for, eating or
sleeping, is "generally" noncompensable, even though the employee is
required to be on the employer's premises. The Court in Rapp observed
that, "(t)his rule is now well established. The exception . . . is
where substantial labor is performed in the time set aside for sleeping
and eating." This Stipulation does not indicate that these employees had
any work to do in their meal period; rather the fact that meals were
not to be taken near the work site suggests strongly that such time was
duty-free.
The General Counsel and the Union argue that the U.S. Code provisions
do not explicitly speak to the subject of paid, duty-free meal breaks on
overtime, and therefore, neither preclude such practice nor justify its
unilateral abandonment. /3/ They also contend that the Air Force
Regulation provides no defense because it is not Government-wide and
does not, in any event, clearly prohibit Respondent's past practice.
Air Force Regulation 40-610 states in clear and unmistakable terms
that duty-free meal breaks during overtime periods are not compensable.
Whether or not backed by the force of law, it is a rule or regulation of
a primary national subdivision of an agency, (the Department of
Defense). As such, under the scheme set forth in Section 7117, it can
have the same effect as a Federal law or a Government-wide regulation,
operating to remove the obligations to bargain from matters which are
the subject of the regulation. /7/ Thus, the effect of subsection
(a)(3) is to create a bar to negotiations concerning any subject matter
which would create a conflict with a rule or regulation of a primary
national subdivision of an agency, absent a determination by the
Authority that there exists no compelling need for such rule or
regulation, unless the union represents a majority of the employees of
the primary national subdivision to whom the regulation applies. /8/
There is here no evidence that either of these conditions, which would
serve to render the decision herein a bargainable one, was met. It
follows that, on this record, the duty to bargain did not extend to the
issue of compensation for duty-free meal breaks on overtime, and that
the decision to end a practice contrary to the Regulation was a
privileged one.
There remained however, the obligation to afford the Union a
reasonable opportunity to bargain over the so-called impact and
implementation of its decision, an obligation which Respondent admits it
did not discharge. The Authority has held, even where a unilaterally
discontinued practice was illegal, that there was an obligation to
bargain "to the extent consonant with law and regulation, concerning the
impact of such required change and, where possible, concerning the
implementation thereof" even though such obligation would not "justify
delay in correcting the unlawful past practice". /9/ Respondent
therefore violated Sections 7116(a)(5) and (1) by depriving the Union of
an opportunity to negotiate about the consequences of its decision.
The request for restoration of the status quo ante is, in my
judgement, inappropriate in the circumstances. While the Authority has
ordered a return to the status quo ante where the violation found was
limited to the failure to engage in impact and implementation bargaining
over the consequences of a decision which was not itself negotiable, it
has not done so where the employment practice ordered reinstituted would
contravene Federal law or Government-wide regulation. /10/ Rather, it
has done so where the change resulted from the exercise of rights
reserved to management under Section 7106. /11/ The fact that the
Authority, in U.S. Geological Survey, supra, acknowledged that the
obligation to engage in impact bargaining would not justify delay in
correcting an unlawful practice, and that bargaining about
implementation may not be possible, is a rather clear indication that it
would not order a return to an illegal status quo ante. The more
troublesome question is whether such a remedy can or ought to be
employed where it would compel an agency or activity to disregard, for
whatever period of time is necessary to discharge its obligation to
bargain in good faith, a regulation which it is otherwise required to
obey. /12/ I conclude that conflict with a regulation does not, per se,
render the remedy unavailable, but that it should nevertheless not be
used in this case. This recommendation is based on two considerations.
First, and most importantly, this record leaves unclear (and
unclarifiable) the question whether the regulation at issue is not, in
fact, required by law. Imposition of the remedy may therefore collide
with other law. Second, the Stipulation makes it impossible to apply
the criteria set forth by the Authority for determining the
appropriateness of a status quo ante order. /13/ Thus, we do not know
about the willfulness of the agency's conduct (there is, in fact, no
reason to believe it was not entirely motivated by the desire to obey
the law), nor do we know the nature and extent of the impact on
adversely affected employees.
As noted, the Union requests backpay. That remedy has been ordered
by an Administrative Law Judge for a violation of Section 7116(a)(5)
where there existed a duty to bargain regarding the substance of a
change in employment conditions. /14/ The purpose of backpay is, of
course, to make whole employees for loss of salary or wages caused by
violations of law. Here, the failure to engage in impact and
implementation bargaining, although a violation of law, did not cause
the reduction in wages. Rather, the reduction resulted from the
enforcement of a regulation which privileged, (and, if backed by law,
required), that change. There was therefore no wrong to be remedied
with a backpay order.
Having concluded that Respondent violated Section 7116(a)(5) and (1)
by its failure to afford the Union a reasonable opportunity to bargain
concerning the impact and implementation of its decision to terminate
the practice of paid meal breaks on overtime, I recommend that the
Authority issue the following order:
ORDER
Pursuant to Section 7118 of the Statute and Section 2423.29 of the
Authority's Rules and Regulations, the Authority hereby orders that the
Department of the Air Force, Air Force Logistics Command, Ogden Air
Logistics Center, Hill Air Force Base, Utah, shall:
1. Cease and desist from:
(a) Discontinuing the practice of paying employees assigned to
overtime shifts for the time spent in duty-free meal breaks,
without first affording American Federation of Government
Employees, AFL-CIO, Local 1592, the employees' exclusive
bargaining representative, an opportunity to negotiate upon
request, with respect to the procedures which management will
observe in implementing such changes and concerning appropriate
arrangements for employees adversely affected thereby.
(b) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of their rights assured
by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify and, upon request, bargain with American Federation
of Government Employees, AFL-CIO, Local 1592, concerning the
procedures to be observed in implementing the change in the
practice respecting payment for duty-free meal breaks on overtime
and concerning appropriate arrangements for employees adversely
affected by such change.
(b) Post at its facilities at Department of the Air Force, Air
Force Logistics Command, Ogden Air Logistics Center, Hill Air
Force Base, Utah, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the Commanding Officer of
the Air Logistics Center, or his designee, and shall be posted and
maintained by him for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places
when notices to employees are customarily posted. The Commander
shall take reasonable steps to insure that the notices are not
altered, defaced or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Acting Regional Director, Region VII, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
It is further ORDERED that the complaint in 7-CA-535 in all other
respects be, and it hereby is, dismissed.
JOHN H. FENTON
Chief Administrative Law Judge
Dated: January 19, 1983
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change the practice of paying employees for duty-free meal
breaks on overtime without first affording the American Federation of
Government Employees, AFL-CIO, Local 1592, the employees' exclusive
bargaining representative, upon request, an opportunity to negotiate
with respect to the procedures which management will observe in
implementing such changes and concerning appropriate arrangements for
employees adversely affected thereby. WE WILL NOT in any like or
related manner interfere with, restrain, or coerce our employees in the
exercise of their rights assured by the Statute. WE WILL notify and
bargain in good faith with the American Federation of Government
Employees, AFL-CIO, Local 1592, upon request, concerning the procedures
to be observed in implementing the changed meal break practice, and
concerning appropriate arrangements for employees adversely affected by
such change.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced, or covered by any other material. If any employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Region VII, Federal Labor Relations Authority, whose address is: 1531
Stout Street, Denver, Colorado, 80202, and whose telephone number is:
(303) 837-5224.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) states in pertinent part:
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;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ 5 U.S.C. 5544 provides in pertinent part:
Sec. 5544. Wage-board overtime and Sunday rates; computation
(a) An employee whose pay is fixed and adjusted from time to
time in accordance with prevailing rates under section 5343 or
5349 of this title, or by a wage board or similar administrative
authority serving the same purpose, is entitled to overtime pay
for overtime work in excess of 8 hours a day or 40 hours a week.
However, an employee subject to this subsection who regularly is
required to remain at or within the confines of his post of duty
in excess of 8 hours a day in a standby or on-call status is
entitled to overtime pay only for hours of duty, exclusive of
eating and sleeping time, in excess of 40 hours a week.
/3/ Based on the disposition of this case, it is unnecessary to pass
upon the comments made by the Chief Judge concerning the absence of a
determination by the Authority that no compelling need existed for Air
Force Regulation 40-610. But see Defense Logistics Agency (Cameron
Station, Virginia), 12 FLRA 412 (1983), aff'd sub nom. Defense Logistics
Agency, et al. v. FLRA, No. 83-2017 (D.C. Cir. Feb. 15, 1985) (wherein
the Authority determined that a compelling need determination may be
made in the context of unfair labor practice proceedings).
/4/ Willingness to settle is, of course, no evidence of violative
conduct. U.S. Department of the Air Force, Norton Air Force Base, 3
A/SLMR 176; Poray, Inc., 143 NLRB 617.
/5/ While there is no indication that the salaries or wages earned
each day were changed, the addition of twenty minutes to the time
actually worked constitutes a reduction of about 5% in the effective
hourly rate.
/6/ They do not address the Court of Claims and Comptroller General
Decisions relied upon by Respondent.
/7/ Section 7117 subsections (a)(1), (2) and (3) provides as follows:
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
(3) Paragraph (2) of the subsection applies to any rule or
regulation issued by any agency or issued by any primary national
subdivision of such agency, unless an exclusive representative
represents an appropriate unit including not less than a majority
of the employees in the issuing agency or primary national
subdivision, as the case may be, to whom the rule or regulation is
applicable.
/8/ See the analysis of the Statute and its legislative history by
Judge Arrigo in Boston District Recruiting Command et al., OALJ-81-023.
/9/ Department of the Interior, U.S. Geological Survey, 9 FLRA 543,
546 at fn. 9. But see Department of the Navy, Portsmouth Naval
Shipyard, 5 FLRA No. 48, which appears to have been overruled, sub
silentio, in U.S. Geological Survey.
/10/ Portsmouth Naval Shipyard is an apparent exception.
/11/ See San Antonio Air Logistics Center, 5 FLRA No. 22; Norfolk
Naval Shipyard, 6 FLRA No. 22; and the discussion of this matter in
Federal Correctional Institution, 8 FLRA 604.
/12/ Analytically, I see no difference for present purposes between a
Government-wide regulation, and one issued by an agency or a primary
national subdivision of an agency, where the conditions for making the
latter two bars to negotiation have been met (see Section 7116(a)(2) and
(3)). They are then legally equivalent.
/13/ Federal Correctional Institution, 8 FLRA 604.
/14/ GSA, National Capital Region, Case No. 3-CA-1991, Administrative
Law Judge Decisions Report No. 14. (That decision, under Section
2423.29(a) of the Authority's Rules and Regulations, is of no
precedential significance.) But see Portsmouth Naval Shipyard, 5 FLRA
No. 48, where the Authority ordered a return to the status quo ante, but
did not order backpay "in view of the discretionary nature of the past
practice involved and the lack of any specific evidence as to support a
backpay award. . ."