[ v09 p543 ]
The decision of the Authority follows:
9 FLRA No. 65 DEPARTMENT OF THE INTERIOR U.S. GEOLOGICAL SURVEY CONSERVATION DIVISION GULF OF MEXICO REGION METAIRIE, LOUISIANA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3457, AFL-CIO Charging Party Case No. 6-CA-209 1
The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. The General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition thereto.
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 Judge's Decision and the entire record in this case, the Authority hereby adopts the Judge's findings, conclusions and recommendations, as modified herein. [ v9 p543 ]
As a preliminary matter, the Respondent filed with the Regional Director a motion to dismiss the complaint herein as untimely filed under section 7118(a)(4)(A) of the Statute. 2 The Regional Director, instead of ruling upon the motion, amended the complaint at the time this case was consolidated with the complaint in Case No. 6-CA-255 (supra n. 1). The Judge concluded that the charge had been timely filed based on his finding that the actual date of occurrence of the alleged unfair labor practice fell within 6 months of the date of filing of the unfair labor practice charge. The Authority adopts the Judge's finding that the charge was timely filed, noting particularly the absence of exceptions. The Authority also agrees with the Judge that, although the Regional Director was authorized under section 2423.12(d) of the Authority's Rules and Regulations to amend the complaint upon such terms as he may deem just, 3 the better practice would have been to specifically act on the motion before him.
On the merits, the Judge concluded that the Respondent unilaterally changed its past practice of paying overtime to employees stranded offshore overnight, but determined that there was no obligation to negotiate over this change because the past practice was unlawful. In this regard, he found that the employees were not lawfully entitled to be paid overtime because they were not required to "hold themselves in readiness to perform work in a standby status" when stranded offshore overnight. The Authority agrees with the Judge's conclusion that the Respondent had no obligation to negotiate over the decision to change the past practice so as to conform with the requirements of law and regulation. In this regard, as cited by the Judge, 5 U.S.C. 5542 4 and section 550.111 of the Federal [ v9 p544 ] Personnel Manual (5 CFR 550.111) 5 require that employees' assignments must require them to hold themselves in readiness to perform work in order for such employees to be entitled to overtime compensation. 6
However, the Authority does not adopt the Judge's dismissal of the additional allegation in the complaint that the Respondent violated section 7116(a)(1) and (5) of the Statute 7 by failing to bargain regarding the impact and implementation of its change in past practice. It is well established that, even where an agency's decision to change a past practice involves the exercise of a reserved management right under the Statute, the agency is required to notify the employees' exclusive representative before making the change and to afford the exclusive representative an opportunity to bargain, upon request, concerning the impact and implementation of [ v9 p545 ] such a change. 8 In this regard, the record indicates that the Respondent stated, in denying overtime to the stranded employees, that such denial was not a change in policy. As already indicated, the Judge found that a change had in fact occurred. Thus, the Authority finds that, by taking such a position, the Respondent failed to give proper notice of the change which effectively foreclosed any opportunity for the employees' exclusive representative to request bargaining over the impact on unit employees of the Respondent's decision to discontinue the unlawful past practice, and that section 7116(a)(1) and (5) was thereby violated, as alleged in the complaint. 9
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of the Treasury, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana shall:
1. Cease and desist from:
(a) Refusing to provide an opportunity for the American Federation of Government Employees, Local 3457, AFL - CIO, the employees' exclusive representative, to bargain, to the extent consonant with law and regulation, with respect to the impact and/or implementation of a legally required change in the practice of paying overtime to employees.
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. [ v9 p546 ]
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request by the American Federation of Government Employees, Local 3457, AFL - CIO, the employees' exclusive bargaining representative, bargain, to the extent consonant with law and regulation, with respect to the impact and/or implementation of a legally required change in the practice of paying overtime to employees.
(b) Post at its facilities 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 Regional Conservation Manager and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places where notices to employees are customarily posted. The Conservation Manager shall take reasonable steps to ensure 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 Regional Director, Region VI, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., July 21 1982
Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
[ v9 p547 ]
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 refuse to provide an opportunity for the American Federation of Government Employees, Local 3457, AFL - CIO, our employees' exclusive representative, to bargain, to the extent consonant with law and regulation, with respect to the impact and/or implementation of a legally required change in the practice of paying overtime to employees.
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 by the American Federation of Government Employees, Local 3457, AFL - CIO, our employees' exclusive representative, bargain, to the extent consonant with law and regulation, with respect to the impact and/or implementation of a legally required change in the practice of paying overtime to employees.
____________________________ (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 employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VI, whose address is: Bryan & Ervay Street, Room 450, P.O. Box 2640, Dallas, Texas 75221, and whose telephone number is: (214) 767-4996. [ v9 p548 ]
DEPARTMENT OF THE INTERIOR U.S. GEOLOGICAL SURVEY, CONSERVATION DIVISION, GULF OF MEXICO REGION METAIRIE, LOUISIANA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Local 3457 Charging Party Case No.: 6-CA-209 Beatrice G. Chester, Esquire Sherman O. Brawner Donald R. Poch For the Respondent James W. DeMik, Esquire For the General Counsel Before: WILLIAM B. DEVANEY Administrative Law Judge
Severance of Cases
By order dated February 20, 1980, the Regional Director, pursuant to Section 2429.2 of the Regulations, consolidated Case Nos. 6-CA-209 and 6-CA-255 and issued a consolidated complaint and Notice of Hearing; and by Order dated March 25, 1980, consolidation was repeated with the issuance of an amended consolidated complaint and Notice of Hearing pursuant to which a hearing was duly held on the consolidated amended complaint. Case No. 6-CA-209 and Case No. 6-CA-255, although they involve the same parties, do not involve any common question of law or fact. Case No. 6-CA-209 concerns an asserted unilateral change in a pay practice for production technicians stranded on offshore drilling platforms as to which Respondent's defense, in major part, is [ v9 p549 ] illegality of payment. 10 In view of the significance of the issues involved and the questions peculiar to Case No. 6-CA-209, pursuant to Section 2423.19(k) and (t) of the Regulations, it is deemed appropriate to sever Case No. 6-CA-209 and Case No. 6-CA-255 for the purpose of decision and, accordingly, a separate Decision and Order will be issued in each case.
Statement of the Case
This is a proceeding under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq. (for convenience of reference, Sections of the Statute are hereinafter also referred to without inclusion of the initial "71" of the Statute reference, e.g. 7116(a)(1), simply as "16(a)(1)") and the Final Rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, 5 C.F.R. Chapter XIV.
The Charging Party, American Federation of Government Employees, AFL - CIO, Local 3457 (hereinafter also referred to as "Local 3457"), filed a charge on August 24, 1979, alleging violation of 16(a)(1) and (5) of the Statute; and on February 20, 1980, the Consolidated Complaint issued (G.C. Exh. 1(h)) which alleged, in Paragraph 5, in part, that "On or about February 20, 1979, Respondent unilaterally changed a past practice regarding payment to employees who are stranded off-shore through no fault of their own. . ." On March 7, 1980, Respondent filed a Motion to Dismiss Case No. 6-CA-209 for the reason that the charge was untimely (G.C. Exh. 1(j)). The only response made by the Regional Director to Respondent's Motion to Dismiss was the issuance on March 25, 1980, of the Amended Consolidated Complaint 11 which, in Paragraph 5, alleges, in part, that "On or about February 24, 1979, and on or about March 27, 1979, Respondent unilaterally changed a past practice regarding payment to employees who are stranded off-shore through no fault of their own. . . ." Pursuant to the Notice of Hearing, a hearing was duly held before the undersigned on the Consolidated Complaint on April 17 and 18, 1980, in New Orleans, Louisiana.
All parties were represented by able counsel, were afforded full [ v9 p550 ] opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues involved. Although both parties waived closing argument, the parties presented very helpful oral argument on Respondent's Motion to Dismiss, in particular as to the defense of illegality of payment, which Motion was carried with the case and will be decided herein. At the close of the hearing, May 19, 1980, was fixed as the date for mailing post hearing briefs which time was subsequently extended, at the joint request of the parties and for good cause shown, to June 2, 1980, and very helpful briefs, timely mailed, were received on, or before, June 9, 1980, and have been carefully considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:
I. Respondent's Motin To Dismiss Pursuant to 18(a)(4)(A) of the Statute
As noted above, on March 7, 1980, Respondent filed a Motion to Dismiss on the ground that the charge was untimely. 18(a)(4)(A) provides in relevant part that:
". . . . no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority." (5 U.S.C. 7118(a)(4)(A))
The charge was filed on August 24, 1979, and did allege that,
"O/A 2/20/78, USGS, by its agent, A. Dewey Acuff, unilaterally changed a past practice . . . ." (G.C. Exh. 1(a))
Standing alone, and the record does not show that any amended charge was ever filed in Case No. 6-CA-209, the allegation that the unilateral change complained of occurred on or about February 20, 1978, was obviously, barred by 18(a)(4)(A). Was the Consolidated Complaint validly issued as to the alleged unilateral change? It must be noted at the outset that there is a difference between the language of 18(a)(4)(A) of the Statute and the language of 10(b) of the NLRA which could be significant.
Section 10(b) provides, in relevant part, "That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board. . . ." 29 U.S.C. 160(b)
From the outset of the NLRA it had been established that the Board was created not to adjudicate private controversies but to advance the public interest in eliminating obstructions to interstate commerce, National Labor Relations Board v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937). It was also well settled that the purpose of the charge was merely to set in motion the machinery of an inquiry, See, National Labor Relations Board v. Fant Milling Co., 360 U.S. 301 (1959), in which the Court stated, in part, as follows: [ v9 p551 ]
"A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry. . . The responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party. To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. This would be alien to the basic purpose of the Act. The Board was created not to adjudicate private controversies but to advance the public interest in eliminating obstructions to interstate commerce, as this Court has recognized from the beginning. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 839" (360 U.S. at 307 - 308)
The Board initially considered the impact and effect of the proviso to 10(b), added by the Labor Management Relations Act, 1947, in Cathey Lumber Company y, 86 NLRB 157, 24 LRRM 1608 (1949), enf'd, 185 F. 2d 1021, 27 LRRM 2272(5th Cir. 1951), enf't denied on rehearing on other grounds (failure of Union to comply wit non-communist affidavit requirement of Sec. 9(h)), 189 F 2d 428, 28 LRRM 2141 (1951). Although, as noted, the Board's decision was not enforced in this case for reasons unrelated to the merits of the decision, Cathey Lumber has been consistently followed, see, for example, McCarron Co., 100 NLRB 1537, 30 LRRM 1235 (1952). In Cathey Lumber, the Board stated, in part, as follows:
"We are . . . of the opinion that the function of the charge continues unchanged in the amended Act, that is, that when filed the charge set in motion the Board's investigatory machinery in order to ascertain whether or not a complaint should issue. As there is no requirement that the charge set forth each unfair labor practice allegation to be litigated, the practice of enlarging upon the charge to include in the complaint allegations of unfair labor practices uncovered during the investigation likewise continues unchanged under the amended Act - but with this important exception made necessary by the purpose of the limitation period imposed by the proviso: that the complaint shall not include allegations of any unfair labor practices occurring more than 6 months prior to the filing and service of the charge initiating the case. It follows that we must reject the construction of the proviso to Section 10(b) advocated by the Respondent and the General Counsel to the extent that it would also proscribe inclusion in the complaint of allegations [ v9 p552 ] of unfair labor practices not specifically mentioned in a charge, although the charge was filed . . . within 6 months after the commission of the particular alleged unfair labor practices. 12
Upon the basis of the foregoing, we concluded that the proviso to Section 10(b) merely extinguishes liability for those unfair labor practices which were committed more than 6 months prior to the filing and service of the charge initiating the case, and that a complaint may lawfully enlarge upon a charge if such additional unfair labor practices were committed no longer than 6 months prior to the filing and service of such charge." (86 NLRB at 162 - 163) (Emphasis supplied).
I am well aware that enlargement upon a charge by a complaint is subject to limitations. See, for example, Immigration and Naturalization Service, Case No. 3-CA-366 (ALJ, June 17, 1980) and cases cited therein. Nevertheless, in appropriate circumstances, enlargement of the charge is wholly consistent with 10(b) which, merely, provides that " . . . no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge . . . ."
18(a)(4)(A) of the Statute, however, is somewhat different and reads, in relevant part, as follows:
". . . no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge . . . ." (Emphasis supplied) [ v9 p553 ]
I find nothing in the Legislative History 13 that sheds any light whatever on the reason for insertion of the word "alleged". If it were intended that this provision be the same as 10(b) of the NLRA, then, certainly, insertion of the word "alleged" was improvident. Innocuous as the word "alleged" might at first blush appear, its insertion raises grave doubt that a complaint under the Statute can enlarge upon the allegations of the charge, i.e., instead of reading, as the proviso to 10(b) of the NLRA does, that "no complaint shall issue based upon any unfair labor practice", 14(a)(4)(A) reads"no complaint shall be issued based on any alleged unfair labor practice", which at the very least, makes questionable whether the construction of the comparable provisions of the NLRA, as set forth in FANT MILLING COMPANY, supra, by the Supreme Court and in Cathey Lumber, supra, by the Board, may be followed in construing the provisions of the Statute with respect to the purpose and effect of the charge.
The language of 18(a)(4)(A) appeared as enacted in both H.R. 11280 as reported (Legislative History, p.411) and in the Udall substitute (Legislative History, p. 917, 976). H. Rep. 95-1396, stated, in part, as follows:
"Subsection (a)(4) prohibits the issuance of a complaint based upon an unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority. . ." (Legislative History, p. 698).
The only explanatory comment in the legislative history 14 indicates that the language of 18(a)(4)(A) was treated as if it read, as 10(b) of the NLRA does, namely that a complaint shall not issue based upon an unfair labor practice which occurred more than 6 months before the filing of the charge. Even though [ v9 p554 ] this ignores the word "alleged", which, as Congressman Ford's post enactment statement indicates, may, or may not, truly reflect the intent of Congress. Nevertheless, Congress clearly structured the procedural aspects of the Statute after the NLRA, the General Counsel of the Authority under 18(a)(1) has precisely the authority of the General Counsel of the Board (3(d) and 10(b) by the NLRA); and the Authority, by its General Counsel, adjudicates in the public interest and does not adjudicate private controversies. The purpose and effect of the charge under the NLRA, essentially that it merely sets in motion the machinery of an investigation, was so well established and the intent of Congress, as expressed in 18(a)(1), was so clearly intended to be the same as 10(b) of the NLRA vis-a-vis the authority of the General Counsel to investigate the charge with the authority to issue a complaint, that to construe 18(a)(4)(A) as limiting the authority of the General Counsel in issuing a complaint to the strict confines of the allegations of the charge would basically alter the established and accepted function of the charge under the NLRA, which, it appears, Congress intended should govern a charge under the Statute. Such drastic shift in policy can not be lightly assumed and in the absence of any clearly expressed intent that Congress meant to change this well recognized function of the charge, I can not, and do not, conclude that insertion of the word "alleged" in 18(a)(4)(A) requires that the charge specify each and every unfair labor practice to be litigated. Cf. Cathey Lumber Company, supra, 86 NLRB at 161.
Nevertheless, even under 10(b) of the NLRA, the Board made clear in Cathey Lumber, and in subsequent decisions, that the power to enlarge upon a charge depends on the existence of a valid, i.e., timely, charge. Here, the charge filed on August 24, 1979, alleged a unilateral change on, or about, February 20, 1978, which was clearly barred by 18(a)(4)(A). General counsel was without authority to change the date alleged in the charge by asserting in the complaint that the unilateral change occurred in 1979. Had an amended charge been filed, the six month period would have run from the date of filing the amended charge. True, there would have been a very real risk that the alleged unilateral change would have been barred by 18(a)(4)(A); but, certainly, Respondent's rights may not be prejudiced by the expediency of General Counsel ignoring the plain purpose and effect of 18(a)(4)(A).
Consequently, the complaint when issued was plainly subject to dismissal pursuant to 18(a)(4)(A) since it was based on an alleged unfair labor practice which occurred more than 6 months before the filing of the charge. However, 18(a)(4) is not a jurisdictional limitation on the Authority, but, like 10(b) of the NLRA, is a statute of limitations which is waived by failure to assert the limitation as a defense. Cf., McCarron Co., supra; NLRB v. Nettleton Co., 241F. 2d 130, 39 LRRM 2338 (2d Cir. 1957); NLRB v. Luzerene Hide & Tallow Co., 188 F. 2d 439, 27 LRRM 2537 (3d Cir. 1951), cert. denied, 342 U.S. 886 (1951). Respondent, in its Motion to Dismiss, dated March 7, 1980, stated, in part, as follows:
"The Consolidated Complaint alleges in allegation 1(a) that 'The charge in Case No. 6-CA-209 was filed on August 24, 1979, . . .' and in allegation 5 states that 'On or about February 20, 1979, Respondent unilaterally changed a past practice [ v9 p555 ] regarding payment to employees . . .' Likewise, the charge filed by the Union (copy of which, together with Authority's August 29, 1979 letter re: Case No. 6-CA-209, is attached also alleges that the Agency, on '2/20/1978') We are assuming that 1979 was intended since 1979 is alleged in allegation 5 of the Complaint) 'unilaterally changed past policy (payment of 16 hours pay (including 8 hours o/t)) to men who were stranded offshore overnight due to unforseen circumstances (see SM 370.550.1 Overtime) and paid two men only two hours o/t for hours worked.'
"Thus, both allegation 5 of the Consolidated Complaint and the charge clearly state on their face that Respondent committed the alleged unfair labor practice 'February 20, 1979' . . .the date of February 20, 1979 is the controlling date . . . ." (G.C. Exh. 1(j)
With full awareness of the date alleged in the charge (on or about February 20, 1978), Respondent treated the date as a typographical error; assumed that the year 1979 was intended; and accepted the charge as having alleged the year as 1979. By failure to assert the limitation of 18(a)(4)(A) to the allegation of the charge, Respondent waived objection to "1978" notwithstanding that it acted under a misapprehension that the Complaint could change the date of the alleged unilateral change as asserted in the charge. The basis for Respondent's Motion of March 7, 1980, was that the allegation of Paragraph 5 of the original Consolidated Complaint, that,
"On or about February 20, 1979, Respondent unilaterally changed a past practice . . . ."
was barred by 18(a)(4)(A) because,
" . . .the date of February 20, 1979, is the controlling date as to when it is claimed that the alleged unfair labor practice occurred . . . that the charge was not filed until August 24, 1979, which is more than 6 months after the alleged unfair labor practice occurred (the charge would have to have been filed by August 20, 1979 to be timely), the General Counsel was prohibited by the express mandate of 5 U.S.C. 7118(a)(4)(A) from issuing a Complaint in Case No. 6-CA-209." (Motion p 2 - 3, G.C. Exh. 1(j))
The Amended Consolidated Complaint in Paragraph 5 stated,, in part, as follows:
"On or about February 24, 1979, and on or about March 27, 1979, Respondent unilaterally changed a past practice . . ." [ v9 p556 ]
Respondent's position at the hearing and its assertion in its Brief is, as stated in its Brief, that,
" . . . it is clear that all of the event which gave rise to the alleged unfair labor practice, if there were one, occurred prior to the cutoff date of February 24, 1979. Thus, any subsequent event such as the issuance of the March 27, 1979 internal directive (see C.G. (sic) Exhibit No. 6 and R-1) was merely a written reiteration of Respondent's policy reflecting its refusal on February 22, 1979 to pay for 8 hours of overtime when employees were stranded offshore overnight and no work was performed . . . ." (Respondent's Brief, p. 17) (Emphasis in original)
Although Respondent's position has substantial basis and has been given most careful consideration, I have concluded, for reasons more fully set forth hereinafter, that the allegations of the Complaint are not barred by 18(a)(4)(A). First, employees Cabaniss and Reith were stranded on the drilling platform on Tuesday, February 20, 1979, and returned to shore on the afternoon of February 21, 1979. Time sheets were due on Friday, February 23, for the period of February 11 through 24. There is no dispute that Mr. William D. Terrebonne, Petroleum Engineering Technician Supervisor, told Mr. Reith and Mr. Cabaniss they should enter 8 hours regular time and 8 hours overtime on their time sheets for February 20; that Mr. Terrebonne left a copy of the April 17, 1973, memorandum (G.C. Exh. 5) on Mr. Reith's desk on February 22, and that Mr. Reith, pursuant to Mr Terrebonne 's advice and the April 17, 1973, memorandum, on February 22, 1979, put 8 hours regular time and 8 hours overtime for February 20, 1979, on his time sheet. Mr. Cabaniss for some reason that is not apparent, was not satisfied with Mr. Terrebonne's advice, and, as he testified, he asked Mr. Frederick, District Supervisor, what to do about the time for February 20, and that, to the best of his recollection, this was on February 23d the day the time sheets were due. Following his conversation with Mr. Frederick, Mr. Cabaniss received a note from the timekeeper (G.C. Exh. 7) which instructed Mr. Cabaniss as follows:
"The decision, so far, is the only overtime that is given for yesterday and the day before is what you actually worked. Put in pencil the overtime hours for 2/20 - 2/21 on your time sheet, just in case its changed.
P.S. Return worksheet to me Friday morning. . . ." (G.C Exh. 7). 15 (Emphasis in original) [ v9 p557 ]
Mr. Garry W. Brice, a Petroleum Engineering Technician and Vice President of Local 3457, testified, in part, as follows:
" . . .I was present when they were trying to figure out what to do with their time, you know, in the office that morning, Friday morning that the time sheets had to be in. (Tr. 74)
"Well, it was a big fiasco all of a sudden. I know they were told to turn in 16 and then I know that T.C. (Cabaniss) had went in to see the assistant district supervisor, and questioned him about it, and I don't know why, and as a result from there they went to Admin and the payroll section or whatever, and they decided they couldn't pay the 16." (Tr. 75).
Mr. Terrebonne testified that he, with supervisors Ray and Mullin, had a discussion with Mr. Lowell G. Hammons, then Acting Regional Supervisor, presumably on February 22 or 23, "about the men not getting paid" and that Mr. Hammons "thought according to the regulations that they weren't going to get paid, according to what the regulations said." (Tr. 124). Mr. Hammons, now Region Conservation Manager, in February, 1979, was Assistant Region Conservation Manager and Mr. A. Dewey Acuff was Region Conservation Manager. Mr. Hammons testified that he talked to two people, namely, Mr. Edwards, the time clerk, and Ms. Marilyn Villarrubia, then accounts maintenance clerk, and that he "verbally advised that I did not consider it to be appropriate to pay that overtime." (Tr. 154). The only discussion Mr. Hammons recalled with a supervisor was, obviously, some time later. He stated,
" . . .the supervisor from another district came to my office to discuss the matter after they found out that I had made a decision in that matter
" . . . shortly thereafter, we issued a memorandum of clarification . . . ." (Tr. 155) (The memorandum referred to was issued by Mr. Acuff on March 27, 1979. (G.C. Exh. 6)).
From Mr. Hammons' testimony, it is probable that Mr. Terrebonne was in error as to the date that he and Messrs. Ray and Mullin met with Mr. Hammons and that their discussion took place after February 26, 1979. In any event, Mr. Reith changed his payroll sheet and Mr. Cabaniss prepared his payroll sheet as instructed, i.e. showed only actual overtime for February 20, although, presumably, they complied with the admonition to "Put in pencil the overtime hours for 2/20 - 21 . . . Just in case its changed" (If Mr. Cabaniss entered the full 8 hours of overtime "in pencil", the entry does not appear on G.C. Ex. 8 and Mr. Reith's time sheet was not offered as an exhibit). The payroll [ v9 p558 ] period actually ends on Saturday and the Districts turn in their time cards on "a Monday morning after they got all the information from the technicians through Saturday" (Tr. 147).
Consequently, while the claim for overtime, as the result of being stranded offshore, arose on February 20 and both Messrs. Reith and Cabaniss had been told by payroll on February 22 or 23, that only actual overtime would be paid for February 20; nevertheless, payroll had stated, in writing in a note to Mr. Cabaniss that he should show the overtime "in pencil" in case it's changed. The payroll sheets were not submitted by Messrs. Reith and Cabaniss until February 23; the payroll period did not end until February 24; the Metairie District may not have turned in their time sheets until February 26; and in any event, final determination on payment was, necessarily, on or after February 26. Therefore, the alleged unilaterial change of "a past practice regarding payment to employees who are stranded off-shore" did not occur until it was finally determined that Reith and Cabaniss were not to be paid "8 and 8" for February 20 and since such determination could not have occurred until sometime after February 26, the alleged unfair labor practice was within 6 months of the date of the filing the charge, even though it may barely have been within such period. The note from payroll (G.C. Exh. 7) plainly stated that, "The decision, so far, is the only overtime that is given . . .is what you actually worked" but further advised, "Put in pencil the overtime. . . Just in case its changed" to which I can ascribe no other meaning than that a final determination would be made after the payroll was received. This was fully consistent with Mr. Hammons' testimony that he told Mr. Edwards and Ms. Villarrubia that he "did not consider it to appropriate to pay that overtime", was fully consistent with Mr. Terrebonne's testimony, if his recollection of the date of the conversation with Mr. Hammons were correct, namely that Mr. Hammons, on February 22 or 23, "thought . . . that they weren't going to get paid"; and was wholly consistent with Mr. Brice's testimony that "the payroll section . . . decided they couldn't pay the 16".
Second, even though Mr. Brice, a Vice President of Local 3457, knew on February 23 that "they decided they couldn't pay the 16" to Cabaniss and Reith, the change in pay practice, for the purpose of 18(a)(4)(A), did not occur, at the earliest, until the employees were paid contrary to prior practice, which would place the date of the change on or after February 26, 1979, and within 6 months of the date the charge was filed with the Authority.
Third, the final policy determination was not made until March 27, 1979, when the Region Conservation Manager, Mr. Acuff, issued Gulf of Mexico Region Internal Directive #370.550-1 (Operational Procedures Memorandum)(G.C. Exh. 6, Res. Exh. 1). There is no doubt that Mr. Hammons, on February 22 or 23, told Mr. Edwards and Ms. Villarrubia that he "did not consider it appropriate to pay that overtime". Mr. Hammons on that date was Acting Region Conservation Manager and both Mr. Hammons' testimony and the note from payroll to Mr. Cabaniss clearly indicated that the final decision was left open, from which I infer was meant that Mr. Hammons' decision was subject to Mr. Acuff's approval or disapproval. Mr. Hammons testified that a supervisor from another district had come to his office "to discuss the matter after they found out that I had made a decision in that matter" and that "shortly thereafter, we issued a memorandum of clarification since it was apparent there must have been somebody [ v9 p559 ] that did not fully appreciate the standing policy of the payment of overtime" (Tr. 155). Of course, the memorandum referred to was Mr. Acuff's Internal Directive No. 370.550-1, dated March 27, 1979, the stated purpose of which was,
"1. Purpose. This issuance clarifies the policy of the Gulf of Mexico Region regarding compensation made to employees who are compelled to remain offshore overnight for circumstances beyond the control of the employee or the agency.
, . ." (G.C. Exh. 6, Res. Exh. 1).
The Directive stated that "The provisions of this directive apply to all employees of the Gulf of Mexico Region while on official business or on authorized visits to installations in the Gulf of Mexico Outer Continental Shelf." While the payment of employees Cabaniss and Reith presaged the policy, the Internal Directive was the first statement of the Region's Policy. Although Mr. Acuff, in his letter of transmittal to Miss Elzen R. Feehan, President of Local 3457, stated that,
". . .We do not consider this to be a change in policy. . ."
to the extent that the Directive represented a change in policy, and for reasons discussed hereinafter I find that it did change prior policy, its unilateral issuance by the Region Conservation Manager on March 27, 1979, constituted, as set forth in the Amended Consolidated Complaint, an alleged unfair labor practice which occurred within six months of the filing of the charge with the Authority.
Accordingly, the charge was timely filed and Respondent's Motion to Dismiss is denied.
II The Prior Policy and Practice
While the issue in this case has been referred to as the payment of overtime, this is, in reality, a secondary question. The primary question being what are the hours of duty when employees are stranded off-shore? Hours of duty determine hours for which an employee must be paid; the rate of pay being a separate consideration. 16 The reason for this distinction, quite [ v9 p560 ] simply, is that Respondent initially addressed the question as "Duty Status", or hours of duty, for the reason that Petroleum Engineering Technicians were then paid overtime only after 40 hours of duty. Thus, the memorandum, dated December 16, 1969, from Administrative Officer, Conservation Division, Geological Survey, Washington, D.C., to Supervisor, Branch of Oil and Gas Operations, Gulf Coast and Pacific Regions, stated, in part, as follows:
"Subject: Guidelines - Irregular Work Week for Petroleum Engineering Technicians
"The following guidelines are established for use by offices having petroleum engineering technicians employed on an approved irregularly scheduled work week:
"Irregular Work Week
1. The first 40 hours of duty performed during a period of not more than six consecutive days of a calendar week constitutes an irregular work week.
"3. Technicians will be considered to be on duty the total time offshore provided there are no sleeping accommodations available on platforms.
"4. Sleeping time for offshore work of 8 hours during each 24 hours on the job is not considered 'hours of employment' where sleeping accommodations are available. . . . ."(G.C. Exh. 4)
By memorandum dated February 17, 1970, the Oil and Gas Supervisor, Gulf Coast Region, advised all District Engineers of the December 16, 1969, memorandum from the Division Administrative Office and, by way of "amplification or further explanations" as to paragraph 3 of "Duty Status" stated as follows:
"3. '. . .provided there are no sleeping accommodations available on platforms,' or on any other available facility nearby. (Our addition and underlining for clarity.)" (G.C. Exh. 4).
The memorandum of February 17, 1970, further stated that, "All personnel on an irregular work week schedule and their supervisors are to be furnished a copy of these guidelines." [ v9 p561 ]
The foregoing established the duty status, offshore, of the Petroleum Engineering Technicians, all of whom were employed on irregularly scheduled work weeks, for pay purposes and provided that they were on duty the total time offshore except that if sleeping accommodations were available, either on the platform or nearby, 8 hours would not be considered "hours of employment". Thus, if an employee, from arrival at onshore helicopter or other departure base to return to that base (G.C. Exh 4, Duty Status, paragraph 1), spent 24 hours, he was on duty the entire 24 hours if no sleeping accommodations were available and for 16 hours if sleeping accommodations were available and was, accordingly, paid for either 24 hours or for 16 hours, as applicable, without regard to actual hours of work. 17 Mr. Terrebonne so testified based on his personal experience as a technician (Tr. 220 - 221).
On April 17, 1973, the District Engineer, New Orleans District, in a Memorandum to Policy File, stated as follows:
"SUBJECT: Hours for Pay Purposes
"When a technician is 'stuck' offshore overnight, through no fault of his own, up to 16 hours will be allowed for pay purposes.
"When a technician is offshore witnessing P & A, tests, etc., and spends the night on platform, he will turn in total time actually worked.
"Above is per the District Engineers' Conference in Lafayette, April 12 and 13, 1973." (G.C. Exh. 5).
Although the April 17, 1973, memorandum was referred to, quite properly, by Mr. Terrebonne as the authority for his instruction to Messrs. Cabaniss and Reith, it is obvious that the April 17, 1973, memorandum merely reaffirmed the policy of December 16, 1969 and February 17, 1970 (G.C. Exh. 4), albeit in simplified language. The record shows without contradiction that employees were consistently paid when stranded offshore in accordance with the memoranda of December 16, 1969, February 17, 1970, and April 17, 1973, i.e., were paid [ v9 p562 ] for up to 16 hours (it appears that sleeping accommodations had become available generally by 1973 if not earlier) when stranded offshore and, of course, were paid for all hours actually worked if in excess of 16. (Tr. 219-221). The record does not show why the payment of daily overtime began or the precise time that payment of daily overtime commenced 18 ; but the record does show that daily overtime has been paid since 1976, and, specifically, that 8 hours regular time and 8 hours overtime were paid when employees were stranded offshore after October 1, 1976 (G.C. Exh. 3. 9, 10, Tr. 63 - 67, 76, 80, 81, 82, 90, 115 - 117, 122, 123). Accordingly, the record plainly shows a practice, in accordance with Respondent's written statement of Policy, of paying up to 16 hours when employees were stranded offshore from December, 1969, which practice was modified about October 1, 1976, to provide for the payment of daily overtime when stranded offshore.
III Respondent's Unilateral Change
Respondent's contentions that: a) Mr. Hammons had never seen the memorandum of April 17, 1973; and/or b) the District Engineer (now District Supervisor) was without authority to set pay, policies (Respondent's Brief p. 5, Tr. 160), neither of which I have any reason to doubt, at best, beg the [ v9 p563 ] question and the conclusion Respondent would draw is a non sequitur. As noted above, the April 17, 1973, memorandum of the District Engineer merely restated the policy set forth initially by the Division Administrative Officer in his memorandum of December 16, 1969, and further confirmed by the Oil and Gas Supervisor, Gulf Coast Region, by his memorandum of February 17, 1970. Not only has Respondent not questioned the authority of the Division Administrative Officer to issue the memorandum of December 16, 1969, but it appears beyond question that the Administrative Officer of the Conservation Division, with the concurrence of the Division Chief, Assistant Chief and Branch Chief, certainly possessed the authority to issue guidelines for payment of petroleum engineering technicians employed by subordinate Regions of the Division; and that the Oil and Gas Supervisor, Gulf Coast Region, had authority, pursuant to the memorandum of December 16, 1969, to issue his memorandum of February 17, 1970. Consequently, assuming that the District Engineer was without authority to set pay policies, the District Engineer had the authority to issue his memorandum of April 17, 1973, to Petroleum Engineering Technicians, who are under his supervision, restating pay policies already set by the Division. Nothing in the memorandum of April 17, 1973, purported to relate to daily overtime and, although the record shows that payment of daily overtime commenced about October 1, 1976, the memorandum of April 17, 1973, merely stated, in simplified terms, what had been stated in the memoranda of December 16, 1969, and February 17, 1970, that in computing time, technicians would be considered to be on duty the total time offshore except that sleeping time for 8 hours during each 24 hours is "not considered 'hours of employment' when sleeping accommodations are available." (G.C. Exh 4). To be sure, the memorandum of April 17, 1973, stated, "When a technician is 'stuck' offshore overnight, through no fault of his own, up to 16 hours will be allowed for pay purposes" (G.C. Exh 5), which is what the memorandum of December 16, 1969, had also provided, namely that "Technicians will be considered to be on duty the total time offshore" except that "Sleeping time for offshore work of 8 hours during each 24 hours on the job is not considered 'hours of employment' where sleeping accommodations are available." (G.C. Exh. 4). Nor can there be any doubt that the memorandum of December 16, 1969, was applied to "stranding" situations inasmuch as the record shows, without contradiction, that technicians stranded offshore were paid up to 16 hours, pursuant to the memoranda of December 16, 1969 and February 17, 1970, prior to the issuance of the memorandum of April 17, 1973. As both the practice and the language of the written documents demonstrate that the memorandum of April 17, 1973, was a restatement of pay policy set by Division in 1969, whether Mr. Hammons knew of the memorandum of April 17, 1973, is immaterial as to the existence of the practice, established by guidelines issued by the Conservation Division in 1969, whereby technicians were considered to be on duty for pay purposes the total time offshore except that 8 hours during each 24 hours was not considered "hours of employment" where sleeping accommodations were available.
I conclude that, pursuant to the memoranda of December 16, 1969, and February 17, 1970, a policy had existed whereby petroleum engineering technicians were considered to be on duty the total time offshore, except that 8 hours during each 24 hours on the job was not considered "hours of employment" where sleeping accommodations were available; that pursuant to the memoranda of December 16, 1969, and February 17, 1970, petroleum engineering [ v9 p564 ] technicians when stranded offshore were paid for up to 16 hours; that the memorandum of April 17, 1973, restated, in simplified terms, the policy initially set forth in the memorandum of December 16, 1969, and stated that when a technician is "stuck" offshore overnight up to 16 hours would be allowed for pay purposes; and that when Respondent began the payment of daily overtime, about October 1, 1976, technicians stranded offshore were thereafter paid 8 hours straight time and up to 8 hours overtime. The memoranda were disseminated to all technicians and the memorandum of April 17, 1973 was placed in the Policy File; technicians were paid for up to 16 hours when stranded offshore from 1970, and were paid daily overtime when stranded offshore from about October 1, 1976. Respondent's practice, consistently followed since at least 1970, of paying petroleum engineering technicians for up to 16 hours when stranded offshore had become an established condition of employment which, unless illegal, Respondent was not at liberty to change unilaterally. U.S. Department of the Treasury, Internal Revenue Service New Orleans District, New Orleans, Louisiana, A/SLMR No. 1034, 8 A/SLMR 497 (1987); Internal Revenue Service, Southwest Region, Appellate Branch Office, New Orleans, Louisiana, A SLMR No. 1153, 8 A/SLMR 1254 (1978).
Respondent, on or after, February 26, 1979, refused to pay New Orleans District (now Metairie District) employees Reith and Cabaniss, who had been stranded offshore on February 20, 1979, for up to 16 hours (8 hours straight time and 8 hours overtime) in accordance with its prior practice and Respondent's unilateral decision to pay and payment of employees Reith and Cabaniss for 10 hours actually worked (8 hours straight time and 2 hours overtime), although these employees had been instructed to show the full 8 hours overtime "in pencil" on their time sheets, rather than for 16 hours as had been established practice since 1970; and on March 27, 1979, Respondent, without prior notice to Local 3457, issued Internal Directive No. 370.550-1, applicable to all employees of the Gulf of Mexico Region, which, inter alia, stated, in effect, that employees stranded offshore would be paid only for hours actually worked and that time spent on the installation after completion of regular working hours and prior to departure from the platform was "not considered hours of work for the purpose of paying overtime." (G.C. Exh. 6, Res. Exh. 1). By such unilateral actions Respondent changed a condition of employment without affording Local 3457 an opportunity to bargain prior to implementation thereof.
Respondent transmitted a copy of its Internal Directive No. 370.550 - I to the President of Local 3457 on March 27, 1979 (Res. Exh 1), and at a meeting with Mr. Henry Keith Sterzing, Chief of Office Management Services, Local 3457 on March 29, 1979, asserted that the portion of the Directive relating to "stranded offshore policy" had been changed without negotiation and requested negotiations. Mr. Sterzing stated that on March 29, 1979, because he was not familiar with the matter, he had simply responded that he "would look into that". The matter was discussed with Local 3457 on June 1, 1979, when Mr. Acuff was present and Mr. Hammons was called in for the portion of the meeting concerning "stranded offshore" policy. Respondent's position was, consistently, that negotiation was not appropriate because, it asserted, that the Directive did not change prior policy. By letter dated July 10, 1979, to Ms. Feehan, President of Local 3457, Mr. Hammons, as Acting Conservation Manager, stated, in part, as follows: [ v9 p565 ]
"Reference is made to your July 3, 1979, telephone conversation with Keith Sterzing, concerning Local 3457's allegation that Gulf of Mexico Region I D 370.550 - 1 changed overtime policies without negotiation. You have, as yet, failed to document any overtime policy change. What you provided me at our June 1, 1979, meeting did not pertain to overtime . . ."
"It is, therefore, my position that negotiations on overtime policies are not now appropriate as the Gulf of Mexico Region has not changed overtime policy and is not proposing any change therein. If you can document such a change, I will be pleased to reconsider.
. . . ." (G.C. Exh. 11).
Mr. Sterzing's testimony concerning the June 1, 1979, meeting makes it abundantly clear that Mr. Hammons, notwithstanding his implicit denial in his letter of July 10, was fully aware of the April 17, 1973, memorandum. Mr. Sterzing testified, in part, as follows:
" . . .There was referenced (sic) in (sic) the internal directive as far as the official regional policy in the survey manual. Mr. Hammons also made the statement to Patty and the Union representatives that the mere fact that a first level supervisor or even a district supervisor made some statement that was not correct or not fully correct, that that (sic) was erroneous, that that did not establish regional policy, and that regional policy was established by the Regional Manager, and that it was always official regional policy to pay people only when they worked or were travelling, and not when they didn't work." (Tr. 184).
For reasons stated in the Internal Revenue cases, supra, a practice knowingly acqiesced in by responsible management officials may, notwithstanding "official" policy to the contrary, ripen into a condition of employment which may not be unilaterally changed. Here, of course, the duty status of technicians while offshore was established by the Conservation Division's memorandum of December 16, 1969; was implemented in the Gulf Coast Region on February 17, 1970; was restated by the District Engineer on April 17, 1973; and, pursuant therein, from at least 1970, technicians throughout the Gulf Region were consistently paid for up to 16 hours when stranded offshore until or on after February 26, 1979, when Respondent refused to pay New Orleans District (now Metairie District) employees Cabaniss and Reith except for hours actually worked and, on March 27, 1979, this "clarification" was implemented as the policy of the Gulf of Mexico Region as Internal Directive No. 370.550 - 1. The record shows beyond doubt that Respondent unilaterally changed its long [ v9 p566 ] established practice on and after February 26, 1979, and that Respondent refused all requests of Local 3457 to negotiate concerning this change in pay practice; although Respondent did negotiate with respect to meal and bunk charges, referred to in Internal Directives 370.550-1 (See, also, Respondent's letter dated May 31, 1979, addressed to Miss Feehan and attachments, Resp. Exh. 5; and Res. Exh. 6). As the record plainly shows a drastic change in duty time of technicians when stranded offshore by Respondent on and after February 26, 1979, I give no credence to Mr. Hammons' statement in his letter of July 10, 1979, that, "the Gulf of Mexico Region has not changed overtime policy and is not proposing any change therein." Obviously, since duty time governs the hours for which compensation is paid, any change in "hours of employment" (G.C. Exh. 4) inevitably changes overtime compensation. Nor do I give any credence to Mr. Hammons' further assertion that "If you can document such a change, I will be pleased to reconsider" (his position that negotiations on overtime policies were not appropriate), inasmuch as the record firmly shows that Mr. Hammons, with full knowledge of the April 17, 1973, memorandum (G.C. Exh. 5), which restated the policy of the Division as set forth in the memorandum of December 16, 1969, and February 17, 1970 (G.C. Exh. 4), refused to negotiate. Mr. Hammons' "I will be pleased to reconsider" was, clearly, no more than "window dressing" to veil his flat refusal to negotiate concerning an obvious change in policy and practice. Indeed, Mr. Sterzing's testimony, which I fully credit as to the June 1, 1979, meeting, leaves no doubt that Mr. Hammons, although furnished "documentation", rejected consideration of prior Regional Policy and practice.
IV Illegality of payment as a defense to Respondent's refusal to bargain
Despite Respondent's assertions to Local 3457, in effect that it had not changed overtime policy but if you can prove we did then we will reconsider our refusal to talk about it, Respondent's true position, or at least its ultimate position, as reflected by its Motion to Dismiss, by its argument at hearing, and in its Brief, was, and is, that, although it admitted at least isolated payments in the past apparently for hours not worked (Tr. 28), any prior payment for hours not worked had been improper as any payment for hours not worked is illegal. In essence, Respondent's position is that, because payment for hours not worked is illegal, it was not obligated to pay employees Cabaniss and Reith except for hours actually worked; it had no obligation to bargain concerning its policy clarification as to compensation for stranding offshore (Internal Directive 370.550-1, G.C. Exh. 6) since any change in policy thereby was to terminate the illegal payment for time not actually worked. This was stated in various ways by Respondent, for example, at page 11 of its Brief, as follows:
" . . .management did not negotiate the policy pertaining to compensation when stranded offshore because there was no authority to pay when the people did no work, nor were they actually travelling; and the agency's position has consistently been that it was illegal to bargain or pay for employees stranded offshore overnight when no work was performed . . . ." (Res. Brief, p. 11) [ v9 p567 ]
At page 27 of its Brief, Respondent further stated,
"Since the practice of paying overtime compensation to employees stranded offshore overnight would be illegal when no work is performed, Respondent was obligated to terminate that practice as soon an it became known to regional officials, without prior consultation with the Union, and thereafter to notify the Union and bargain on impact and implementation. . ." (Res. Brief, p. 27).
I am aware that the Council in Department of the Army, Aberdeen Proving Ground, FLRC No., 74A-46, 3 FLRC 188 (1975), stated, in part, as follows:
" . . .As to whether a party may rely upon a defense that it cannot comply with an arbitration award until it may be assured of the legality of the award (e.g., until it receives appropriate authorization from the Comptroller General), such a defense may not lie to the unfair labor practice proceeding. In this connection, the party has ample opportunity to raise such questions concerning the illegality of the award in exceptions filed with the Council . . . ." (3 FLRC at 194) (Emphasis in original).
Nevertheless, I do not believe the holding in Department of the Army, supra, which specifically addressed a refusal to comply with an arbitration award, is applicable here and, pursuant to Department of the Army, Dugway Proving Ground, Dugway, Utah, A/SLMR No. 745, 6 A/SLMR 618 (1978), conclude that the defense of illegality of payment will lie to Respondent's refusal to bargain. 19 In Dugway Proving Ground, it was held that the activity was entitled to discontinue the unlawful practice of furnishing transportation by Government vehicles without the necessity of prior consultation with the Union, although the activity was under a duty to bargain on the impact and implementation of its action. A similar result was reached in Veterans Administration Hospital, Sheridan, Wyoming, A/SLMR No. 940, 7 A/SLMR 1009 (1977) (basis for payment for [ v9 p568 ] impact-resistant glasses ceased to exist and activity no longer possessed authority to purchase such glasses with public funds); and in Department of Interior, Bureau of Indian Affairs, Phoenix Area Office, Phoenix, Arizona, A/SLMR No. 1126, 8 A/SLMR 1083 (1978) (" . . . upon discovery of the unlawful nature of the van transportation Respondent was obligated to cause its cessation; and it was entitled unilaterally to do so." (8 A/SLMR at 1090)). Moreover, 3(a)(14) of the Statute excludes from the definition of "conditions of employment" policies, practices, and matters "(C) to the extent such matters are specifically provided for by Federal statute" (5 U.S.C. 7103(a)(14)(C)), and Respondent asserts that 5 U.S.C. 5542(a) prohibits the payment for time not worked.
I conclude, for reasons stated hereinafter, that payment for time not worked was unlawful inasmuch as the assignment did not require that employees stranded offshore hold themselves in readiness to perform work in a standby status. In this regard, it was not asserted that employees stranded offshore were required to hold themselves in readiness to perform work after completion of assigned duties, for which they were paid, and, to the contrary, the record affirmativily shows that: a) Respondent did not desire that such employees hold themselves in readiness to perform actual work in a standby status; and b) employees Cabaniss and Reith testified that after completion of their assigned duties they were free to do as they pleased, albeit that they, necessarily, were confined, by circumstances, to the platform. In addition, the testimony of Messrs. Cabaniss and Reith was specifically corroborated by the testimony of Mr. Brice (Tr. 80) and was neither disputed nor challenged in any manner, as to their personal experiences, by Messrs. Thibodeaux and Terrebonne although neither was examined as to their activity while on platforms after completion of their assigned duties.
Although I have reviewed all of the decisions cited by Respondent, I base my conclusion that Respondent's prior pay policy was illegal on two decisions of the Comptroller General, 52 Comp. Gen. 794 (1973) and 57 Comp. Gen. 496 (1978), the provisions of 5 U.S.C. 5542-5545 and 5 C.F.R. 550.101 et seq.
5 U.S.C. 5542 provides, in part, as follows:
"(a) For full-time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or . . . in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for . . . at the following rates:
(1) For an employee whose basic pay is at a rate which does not exceed the minimum rate of basic pay for GS-10, the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of basic pay . . .
(2) For an employee whose basic pay is at a rate which exceeds the minimum rate of basic pay for GS-10, the overtime rate of pay is an amount equal to one and one-half times the hourly rate of the minimum rate of basic pay for GS-10 . . . ." (5 U.S.C. 5542(a)). [ v9 p569 ]
5 C.F.R. 550.111 provides, in part, as follows:
(a) Except as provided by paragraph (d) of this section, overtime work means each hour of work in excess of 8 hours in a day or in excess of 40 hours in an administrative workweek that is:
(1) Officially ordered or approved; and
(2) Performed by an employee . . . .
(d) (overtime for employees for whom the first 40 hours is his basic workweek)
, . . ."
In 52 Comp. Gen. 794 (B-175275, May 15, 1973), a civilian employee was assigned aboard a vessel for the purpose of conducting post repair vibration surveys of equipment. The Department of the Navy's regulations provided, in part, that "Employees will be considered to be in a standby status when assigned to duty aboard vessels on trial trips . . . ." The employee had been directed to conduct post repair vibration surveys from February 7 to February 8, 1972, aboard the USS Hewes but was denied overtime compensation for standby duty. In sustaining the denial of compensation for standby duty, the Comptroller General stated, in part, as follows:
"The Department of the Navy's instructions . . . attempt to delienate what constitutes standby duty in terms of the characterization of a particular trip rather than in terms of the individual employee's responsibilities, as contemplated by the controlling statute. . . .
" . . .Therefore, to the extent that . . . (Navy's Instructions and Regulations) extend the definition of standby duty to include activity clearly not within the scope of 5 U.S.C. 5542, as interpreted by decisions of the Court of Claims and this Office, those instructions are invalid, 36 Comp. Gen. 111 (1956).
"We therefore hold that since your assignment USS Hewes did not require you to hold yourself in readiness to perform work you are not entitled to overtime compensation for any [ v9 p570 ] time aboard ship during which you did not perform actual work . . . ." (52 Comp. Gen. at 796). 20
Here, as was held with the Department of the Navy's Regulations and Instructions, Respondent's 1969, 1970 and 1973 memoranda which provided for payment of all time offshore, up to 16 hours, did not meet the applicable criteria for standby duty and were invalid to the extent that overtime compensation was provided foe activity not within the scope of 5 U.S.C. 5542, as interpreted by the Comptroller General. Here, as was true of the civilian employee aboard a vessel underway, technicians stranded overnight on drilling platforms were not, and are not, required to hold themselves in readiness to perform work during periods when they did not perform actual work but were free to do as they pleased, including use of the recreational facilities available; and, as true of the employee aboard ship, the fact that they could not, because of the circumstances of their being stranded, leave the platform did not entitled them to overtime compensation.
In 57 Com. Gen. 496 (B-170264, May 31, 1978), an employee of the Federal Aviation Administration was assigned to duty at a remote radar site and was required to remain at the facility overnight for nonduty hours. In holding that the employee was not entitled to overtime compensation, the Comptroller General stated, in part, as follows:
"Because of the particular fact circumstances involved, the decision in B-170264, supra (December 21, 1973) begins with the premise that the employees were required to hold themselves in readiness to perform work outside their regular tours of duty, based on administrative reports indicating that there was on-duty coverage at the Boise Cascade Facility for less that 24 hours per day with needed coverage provided by employees required to remain on site during nonduty hours. That decision included the following statement on which Mr. Laughlin relies as a basis for his claim:
* * *While an employee who is "on call" at home may in fact be found to have spent his time predominantly [ v9 p571 ] for his own benefit, Congress has made the determination, reflected by enactment of 5 U.S.C. 5542 and 5545, that where, as in the instant cases, a Federal employee is required to remain at his duty station and away from his home his time is necessarily spent for the benefit of his employer.
That language is not intended to authorize overtime pay under 5 U.S.C. 5542 or premium compensation under 5 U.S.C. 5545(c)(1) except in circumstances where the employee is required to hold himself in a state of readiness to perform work. It does not stand for the proposition that the mere restriction of an employee to his worksite outside of duty hours entitles him to overtime compensation therefor.
It should be recognized that an employee may be required to remain at a worksite during nonduty hours without compensation where his presence is not a result of work or a standby requirement but is due to geographic factors. In Mossbauer v. United States, 541 F. 2d 823 (1976), the U.S. Court of Appeals considered the claim of a Navy employee for overtime compensation for travel between his Government-furnished quarters at one end of a Navy controlled island facility and his job site at the other end of the island. Once a week the employee was flown at Government expense to the island where he was required to remain until he was provided return transportation at the end of his workweek. In the interim he slept in quarters furnished by the Navy. In discussing the employee's entitlement to overtime compensation generally, the Court stated:
"Mossbauer is required to live on the island during the workweek in order to facilitate his presence at the jobsite. However, that fact does not itself render his required off hours presence and daily journeys compensable."
The Mossbauer case was one in which the requirement that the employee remain on site during nonduty hours was a result of the facility's geographic isolation and commuting impracticalities. The Court's statement that the mere requirement that the employee remain on site does not entitle him to overtime compensation is consistent with the language of the Civil Service Commission's regulation at 5 C.F.R. 550.143(a)(1). That subparagraph provides that annual premium compensation for regularly scheduled standby duty is not payable where the employee's remaining at his station is:
* * *merely voluntary, desirable or a result of geographic isolation, or solely because the employees live on the grounds. [ v9 p572 ]
While the language of that regulation is specifically addressed to annual premium pay entitlement under 5 U.S.C. 5545(c)(1), as noted in B-170264, supra, the definition of standby duty under that provision is equally applicable in determining entitlement to overtime compensation for standby duty under 5 U.S.C. 5545(a).
One situation in which an employee is required to remain at his duty site, as a practical matter of geographic isolation, is while assigned to duty aboard a vessel underway. In 52 Comp. Gen. 794 (1973) we held, notwithstanding the necessity that he remain on board the vessel outside of duty hours while on a trial trip, that the claimant was not entitled to overtime compensation for any time aboard ship during which he did not perform actual work inasmuch as his assignment did not require that he hold himself in readiness to perform work." (57 Comp. Gen. at 498-500).
Payment of overtime for hours not worked in the absence of any requirement that stranded employees hold themselves in readiness to perform actual duties when the need arises, albeit pursuant to written statements of policy issued by Respondent in 1969, 1970 and 1973, was unlawful and contrary to the provisions of the controlling statutes and Regulations and upon discovery of the practice, Respondent, on or after, February 26, 1979, lawfully refused to pay employees Cabaniss and Reith overtime compensation except for hours actually worked. 21 As its prior practice had been unlawful and contrary to law, Respondent did not violate 16(a)(5) or (1) of the Statute by its unilateral decision to refuse to pay stranded employees Cabaniss and Reith overtime compensation for hours not actually worked. While I agree with counsel for General Counsel that "possible illegality" (G.C. Brief, p. 7) would not constitute a defense to a refusal to bargain, I have concluded that the controlling statute, regulations and decisions of the Comptroller General make it clear, in my opinion, that payment of overtime for hours not worked, except as specifically authorized for standby duty, was unlawful. 22 See, also, B-190494, Department of Labor-Arbitration Award of Overtime Pay for Travel Time (May 8, 1978).
Local 3457 through its Vice President, Mr. Brice, was aware on February 23, 1979, that Respondent's fiscal officers had stated that employees Cabaniss and Reith would not be paid "the 16" hours and, although the final decision to pay, and the payment of employees Cabaniss and Reith only for overtime actually [ v9 p573 ] worked, occurred on or after February 26, 1979, Local 3457 made no request to bargain on the impact and implementation of that action. Local 3457 was given a copy of Internal Directive 370.550-1 on March 27, 1979, and, although it is not clear that Local 3457 ever requested bargaining on impact and implementation of that portion of the Directive which stated, in effect, that overtime compensation could not be paid to employees stranded offshore except for actual hours of work, there can be no doubt that it had opportunity to do so, indeed, that the parties bargained in good faith and reached agreement on the Directive which was reissued on August 30, 1979 (Res. Exh. 12, see, also, Res. Exhs. 6 and 13). I conclude, therefore, that Respondent fully complied with its obligation to bargain on impact and implementation of Internal Directive 370.550-1.
For the foregoing reasons, having found that Respondent did not violate Sections 16(a)(1) or (5) of the Statute, I recommend that the Complaint in Case No. 6-CA-209 be dismissed.
WILLIAM B. DEVANEY Administrative Law Judge Dated: November 7, 1980 Washington, D.C.
[ v9 p574 ]
Footnote 1 The instant case was consolidated for the purpose of hearing with Case No. 6-CA-255, pursuant to section 2423.19(k) and (t) of the Authority's Rules and Regulations. The Judge, without objection from the parties, severed the two cases for decision.
Footnote 2 Section 7118(a)(4)(A) provides in pertinent part: (4)(A) (N)o complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority.
Footnote 3 Section 2423.12(d) provides, in pertinent part: A complaint may be amended, upon such terms as may be deemed just, prior to the hearing, by the Regional Director issuing the complaint . . . .
Footnote 4 5 U.S.C. 5542 provides, in part, as follows: (a) For full-time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or . . . in excess of 8 hours in a day, performed by an employee are overtime work . . . .
Footnote 5 5 CFR 550.111 provides, in pertinent part, as follows: (a) (O)vertime work means each hour of work in excess of 8 hours in a day or in excess of 40 hours in an administrative workweek that is: (1) Officially ordered or approved: and (2) Performed by an employee . . . . See also FPM Supp. 990-2, Book 610, Subch. S1-3(d).
Footnote 6 The Authority notes that the Comptroller General has reached the same conclusion concerning the interpretation and application of the foregoing provisions of law and regulation. See, e.g., 52 Comp. Gen. 794 (1973); 57 Comp. Gen. 496 (1978).
Footnote 7 Section 7116(a)(1) and (5) provides: 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(.)
Footnote 8 See Social Security Administration, 8 FLRA No. 102 (1982); Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA No. 48 (1981); Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981).
Footnote 9 This is not to suggest that the obligation to bargain over the impact of a decision to discontinue an unlawful past practice could justify a delay in correcting the unlawful past practice. While management may be required to correct an unlawful practice once discovered, there is nevertheless an obligation to give notice of the change and upon request, bargain, to the extent consonant with law and regulation, concerning the impact of such required change and, where possible, concerning the implementation thereof.
Footnote 10 Case No. 6-CA-255 concerns the annual performance evaluation of a unit employee, Ruth B. McCloud, and in particular response made for a "marginal" rating on one item of an evaluation form.
Footnote 11 Obviously, the Amended Consolidated Complaint by alleging the unilateral change "on or about February 24, 1979, and on or about March 27, 1979" responded, in effect, to Respondent's Motion to Dismiss. However questionable such practice may have been in view of the requirements of 2423.22 of the Regulations, the Regional Director was fully authorized, pursuant to 2423.12(d) of the Regulations, to amend the Complaint upon such terms as may be deemed just by the Regional Director. Nevertheless, better practice would have been for the Regional Director to act on the Motion properly filed with him.
Footnote 12 The charge, filed on November 13, 1946, alleged, inter alia, that on October 28, 1946, Respondent discriminated in regard to the hire and tenure of employment of Watt Foggy, David Byrd, Jr., and Eugene Street in violation of IS 8(1) and (3) and, in addition, the charge alleged that Respondent had by other acts and conduct interferred with, restrained, and coerced its employees in violation of 8(1) of the Act. The Complaint alleged that Respondent had discriminated against Foggy, Byrd and Street, as charged; but in addition that Respondent had discriminated in regard to the hire and tenure of employment of 17 other specifically named individuals in violation of 8(3) of the original Act and of 8(a)(3) of the amended Act. This case involved an unconditional offer to return to work and refusal to re-employ strikers for available work.
Footnote 13 Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-7, Committee on Post Office and Civil Service, House of Representatives, 96th Cong. 1st Sess, November 19. 1979.
Footnote 14 In a post enactment statement, which is entitled to little or no weight, and which is not, properly, part of the legislative history, Congressman Ford stated, in part, as follows: "Section 7118(a)(4) provides that no complaint shall issue on an unfair labor practice charge filed more than 6 months after the occurrence of the practice. This time limit applies to unfair labor practices with a clearly definable date of occurrence; continuing unfair practices - such as continuing discriminatory practices under the civil rights laws - may be prosecuted upon a charge filed within 6 months of the last event in the continuing conduct." (Legislative History, p. 997).
Footnote 15 This note indicated that it was, in all probability, written on February 22 which, in turn, would mean that Mr. Cabaniss' conversation with Mr. Frederick was on the 22 rather that the 23.
Footnote 16 This is not an appropriate vehicle to consider statutory requirements for the payment of overtime in the federal service. I am aware that Congress has enacted legislation requiring payment of daily overtime for certain employees, see, for example, 5 U.S.C. 5542, 5543(a)(1), 5544(a), 5550; 38 U.S.C. 4107(e)(5); that in 1974 coverage of the Fair Labor Standard Act was extended to Federal employees, 29 U.S.C. 203(d),(e)(1) and (2); and that in 1978, Congress authorized departures from the foregoing for certain compressed work schedules, P.L. 95 - 390, 92 Stat. 755.
Footnote 17 Obviously, overtime under the arrangement for irregular work week employees did not begin until, and unless, the employee worked more than 40 hours. Nevertheless, the duty houts, i.e. "hours of employment" were paid hours of employment and could directly result in overtime pay. For example: A) Employee works 8 hours Monday; is stranded offshore Tuesday, with sleeping accommodations, and receives 16 hours.; 8 hours Wednesday; 8 hours Thursday - does not work Friday; would receive 40 hours pay. B) Employee works 8 hours. Monday, Tuesday, Wednesday, Thursday; is stranded offshore Friday and returns Saturday morning, again with sleeping accommodations, would be entitled to 40 hours straight time and 8 hours overtime.
Footnote 18 I express no opinion concerning either the obligation or the authority to pay daily overtime. Respondent states that the controlling statute is 5 U.S.C. 5542 (Res. Brief, p. 20) (enacted in 1966 and subsequently amended, most recently in 1971) which provides, in part, as follows: "(a) For full time, part time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative work week, or (with the exception of an employee engaged in professional or technical engineering or scientific activities for whom the first 40 hours of duty in an administrative workweek is the basic workweek and an employee whose basic pay exceeds the minimum rate for GS-10 for whom the first 40 hours of duty in an administrative workweek is the basic workweek) in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for, except as otherwise provided by this subchapter, at the following rates . . ." (5 U.S.C. 5542(a)) Article 13, Section 13-2 of the parties' agreement provides, in part, as follows: "Technicians and radio operators will perform assigned duties on a regular workweek, Monday through Friday, with Saturday and Sunday considered overtime . . . ." (G.C. Exh. 2, p.16)
Footnote 19 Respondent's failure to advance illegality of payment as a reason for it refusal to bargain with Local 3457 and its fallacious denial of prior payments may have evidenced bad faith; nevertheless, the defense of illegality once raised must be considered even if, as here, it was not raised in response to Local 3457's request to bargain and was raised for the first time by Respondent's Motion to Dismiss. Moreover, where, as here, a prior pay practice was illegal, Respondent's unilateral termination of such illegal practice was not violative by the Statute notwithstanding that, absent illegality of its prior pay practice, its failure and refusal to bargain in good faith would have constituted a clear violation of 16(a)(1) and (5) of the Statute. See, also Naval Air Rework Facility, Pensacola, Florida, FLRC No. 76A-37, 5 FLRC 303 (1977). Respondent acknowledged its obligation to bargain on impact and implementation of Internal Directive 370.550-1 and, as indicated hereinafter, I find that it fullfilled its obligation in this regard.
Footnote 20 The decision further noted that the Federal Personnel Manual Supplement 990-2, Book 610, Subchapter S-1-3d, defines standby time as follows: " . . . Standby time consists of periods in which an employee is officially ordered to remain at or within the confines of his station, not performing actual work, but holding himself in readiness to perform actual work when the need arises or when called." (52 Comp. Gen. 796).
Footnote 21 I am aware of the irony whereby "duty status", which permitted payment for all time offshore - up to 16 hours per 24 hour period - was rendered illegal by the provisions of the statute governing payment of overtime.
Footnote 22 Nevertheless, it would preferable, where violation of the Statute turns-directly on a question of law as to whether a prior pay practice was, or was not, lawful to have the benefit or a definitive ruling by the comptroller General pursuant to 31 U.S.C. 74.