17:0394(63)CA - Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 -- 1985 FLRAdec CA



[ 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