[ v61 p562 ]
61 FLRA No. 108
DEPARTMENT OF THE NAVY
NAVAL AIR STATION
OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
May 4, 2006
Before the Authority: Dale Cabaniss, Chairman and Carol Waller Pope, Member
I. Statement of the Case
This case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (the Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated § 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by denying the Charging Party's (the Union's) request to meet with unit employees. The Judge found that the Respondent violated the Statute as alleged.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, recommendations, and recommended Order and Notice for the reasons that follow.
II. Background and Judge's Decision
The bargaining unit employees at issue here are firefighters who work twenty-four-hour shifts, beginning at 7:30 a.m. The Union requested the Respondent's permission to use a break room for approximately four hours, scheduled around the employees' lunch periods, to inform the employees about the benefits of joining the Union. The Respondent denied the request, claiming that the employees do not have any nonduty periods, and thus cannot be solicited for Union membership, [ v61 p563 ] during their shifts. The Union filed a charge, and the GC issued a complaint, alleging that the Respondent's denial of the request violated § 7116(a)(1) of the Statute.
The Judge found that the employees take a lunch break of approximately one hour between 11:00 a.m. and 1 p.m., although employees are permitted to eat lunch outside this time period if they do not have conflicting work-related activities. The Judge also determined that, after approximately 4:00 p.m., the employees are permitted to pursue various personal activities, including "self-study[,]" watching television, cooking and eating meals, exercising in the firehouse gym, and playing softball, as long as they remain prepared to perform duties that may be assigned. Judge's Decision at 4.
The Judge determined that the circumstances of this case are governed by the Authority's decision in Oklahoma City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA 159 (1981) (Tinker). Specifically, the Judge found that the employees are in a nonduty status during the periods when they are not required to perform work. In so finding, the Judge rejected the Respondent's reliance on 5 U.S.C. § 5545b(b)(2), which eliminated standby pay for certain hours during the firefighters' shifts, and provides that all hours in the employees' shift are included in their rate of basic pay. [n1] In this regard, the Judge found that the mere fact that the firefighters are in a pay status does not mean that they are in a duty status that would preclude solicitation by the Union. The Judge also found that the parties' agreement did not permit the denial of the Union's request, [n2] and he concluded that the Respondent violated § 7116(a)(1) of the Statute as alleged.
III. Positions of the Parties
A. Respondent's Exceptions
The Respondent asserts that the employees are in a duty status during the entirety of their shifts and, thus, the Union was not entitled to conduct the requested meeting. In this connection, the Respondent contends that the Judge's reliance on Tinker, 6 FLRA 159, is misplaced because, "[i]n Tinker, unlike in the instant case, employees had both designated lunch periods and break periods and were compensated for such periods," despite the fact that performance of job functions was not required during those periods. Respondent's Exceptions at 3. The Respondent contends that, by contrast, for the employees at issue here, there is "no portion of the 24 hour shift[s] during which the performance of job functions [is] not required." Id.
B. GC's Opposition
According to the GC, the Judge correctly determined that Tinker, 6 FLRA 159, applies here. The GC acknowledges that the employees in Tinker had break and meal periods at designated times, but asserts that all Federal employees -- including those at issue in Tinker -- are subject to being called back to work when they are on breaks. Thus, the GC contends that the fact that the employees at issue here must be prepared to perform work at any time during their shifts does not provide a basis for declining to apply Tinker in this case. Further, the GC asserts that 5 U.S.C. § 5545b(b)(2) merely establishes the manner in which the employees' pay is computed, and does not alter the fact that there are periods during which the employees are not performing duties. Finally, the GC disputes the Respondent's claim that the employees are required to perform duties throughout their entire shifts.
IV. Analysis and Conclusions
The Authority has held that § 7102 of the Statute protects employees' right to solicit union membership. [n3] See SSA, 13 FLRA 409, 411 (1983). However, § 7131(b) of the Statute requires that such solicitation be [ v61 p564 ] performed when employees are in a "nonduty status." [n4] Id. In Tinker, the Authority held that the respondent violated § 7116(a)(1) of the Statute by prohibiting solicitation of union membership during paid breaks and lunch periods. See 6 FLRA at 162. In so holding, the Authority stated that where "employees, at the discretion of management, have been assigned periods of time during which the performance of job functions is not required (i.e., paid free time), . . . such time falls within the meaning of the term `nonduty status' as used in [§] 7131(b)[,]" and "solicitation of membership during such time is permissible." Id. Thus, employees may be in a nonduty status, and may be solicited, despite the fact that they are being paid during the period at issue.
The Respondent correctly asserts that, unlike the employees here, the employees in Tinker had designated lunch periods and break periods. However, the Respondent has not demonstrated how that fact provides a basis for finding that the Judge erred by applying Tinker here. In this connection, nothing in Tinker indicates the distinction between duty status and nonduty status is based on whether management expressly schedules, rather than merely permits, breaks. In fact, in Department of Commerce, Bureau of the Census, 26 FLRA 311 (1987), the Authority upheld a judge's finding of a § 7116(a)(1) violation where the respondent imposed a no-solicitation rule during lunch and other breaks, despite the fact that there were "no common periods of employee non-work times" and coffee breaks were "worked into the day[']s work schedule by individual employees" rather than scheduled by management. Id. at 317, 315 n.2 (judge's decision). This is consistent with private sector precedent. See, e.g., Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1250 (5th Cir. 1992), reh'g denied, 968 F.2d 18 (1992), cert. denied, 506 U.S. 985 (while it is permissible to ban solicitation during "working hours[,]" "[t]he term `working hours' does not include break periods, whether informal or regularly scheduled.") Thus, the fact that the employees' breaks are not scheduled does not demonstrate that they are in a duty status during those breaks.
With regard to the fact that the employees at issue here must be prepared to perform duties at any time during their shifts, the Authority has held that management has the right to assign work to employees during break periods. See, e.g., Overseas Educ. Ass'n, 39 FLRA 153, 164 (1991) (absolute requirement precluding assignment of duties during lunch period not negotiable). There is no basis for finding that the employees in Tinker were not also subject to that rule. Thus, the fact that the employees at issue here are required to be prepared to perform duties during their breaks provides no basis for declining to apply Tinker here.
Further, 5 U.S.C. § 5545b(b)(2) does not demonstrate that the employees at issue here are in a duty status during their entire shifts. In this regard, as found by the Judge, § 5545b(b)(2) does not define duty or nonduty status. Rather, § 5545b(b)(2) establishes how the employees' basic rate of pay is to be calculated. See supra, note 1. Nothing in Tinker indicates that the formula for calculating employees' basic rate of pay is determinative as to whether they are in a duty or nonduty status, and the Respondent provides no argument as to why it should be.
Finally, to the extent that the Respondent is challenging the Judge's finding that there are periods during which employees are not required to perform duties, the record supports the Judge's finding. See Tr. at 26 (testimony that employees try to take a lunch break, which generally consists of about one hour, between 11 a.m. and 1 p.m.); id. at 28 (testimony that after 4 p.m. employees perform non-work activities such as playing softball and going to the gym); id. at 33 (testimony that although there is not a set lunch time, employees try to designate their lunch period between 11 and 1); id. at 37 (testimony that employees sometimes watch television and engage in other non-work activities during their shifts); id. at 41-42 (testimony that supervisors at each station will indicate a block of time for lunch). Cf. id. at 53 and 56 (management official's testimony that firefighters are working throughout their entire shift, but then acknowledging that, firefighters are able to eat lunch between 11:00 a.m. and 1:00 p.m. about half the time, and are permitted to engage in non-work-related activities during shift). Accordingly, the Respondent's challenge is without merit.
For the foregoing reasons, the Judge did not err in finding that the employees have nonduty periods during their shifts, during which the Union is entitled to solicit them for membership purposes. Accordingly, the Judge did not err in finding that the Respondent violated § 7116(a)(1) of the Statute as alleged, and the Respondent's exceptions are denied.
Pursuant to § 2423.41(c) of the Authority's Rules and Regulations and § 7118 of the Federal Service [ v61 p565 ] Labor-Management Relations Statute, it is hereby ordered that the United States Department of the Navy, Naval Air Station, Pensacola, Florida shall:
1. Cease and desist from:
(a) Refusing to allow the American Federation of Government Employees, Local 1960, to conduct Lunch and Learn sessions with firefighters on the basis that firefighters work 24 hour shifts and do not have any nonduty time during their shifts.
(b) Interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Post at its Pensacola, Florida facility copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms they shall be signed by the Commanding Officer of that facility, 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 ensure that such Notices are not altered, defaced or covered by any other material.
(b) Pursuant to § 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director of the Atlanta Region, Federal Labor Relations Authority, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the United States Department of the Navy, Naval Air Station, Pensacola, Florida violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY EMPLOYEES THAT:
WE WILL NOT refuse to allow the American Federation of Government Employees, Local 1960 to conduct Lunch and Learn sessions with firefighters on the basis that firefighters work 24 hour shifts and do not have any nonduty time during their shifts.
WE WILL NOT interfere with, restrain or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
Dated: ______ By: ______________________
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 question concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: Federal Labor Relations Authority, Marquis Two Tower, Suite 701, 285 Peachtree Center Avenue, Atlanta, GA 30303-1270, and whose telephone number is: 404-331-5300.
File 1: Authority's Decision in 61
File 2: ALJ's Decision
Footnote # 1 for 61 FLRA No. 108 - Authority's Decision
(b)(1) If the regular tour of duty of a firefighter subject to this section generally consists of 24-hour shifts, . . . . [5 U.S.C. §] 5504(b) shall be applied as follows in computing pay---
(A) paragraph (1) of such section shall be deemed to require that the annual rate be divided by 2756 to derive the hourly rate; and
(B) the computation of such firefighter's daily, weekly, or biweekly rate shall be based on the hourly rate under subparagraph (A).
(2) For the purpose of [5 U.S.C. §§] 5595(c), 5941, 8331(3), and 8704(c), and for such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe, the basic pay of a firefighter subject to this subsection shall include an amount equal to the firefighter's basic hourly rate (as computed under paragraph (1)(A)) for all hours in such firefighter's regular tour of duty (including overtime hours).
Footnote # 2 for 61 FLRA No. 108 - Authority's Decision
Footnote # 3 for 61 FLRA No. 108 - Authority's Decision
Section 7102 of the Statute provides, in pertinent part, that "[e]ach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity . . . ." 5 U.S.C. § 7102.
Footnote # 4 for 61 FLRA No. 108 - Authority's Decision
Section 7131(b) of the Statute provides, in pertinent part, that "[a]ny activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership . . .) shall be performed during the time the employee is in a nonduty status." 5 U.S.C. § 7131(b).