[ v21 p679 ]
21:0679(87)CA
The decision of the Authority follows:
21 FLRA NO. 87
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916
Charging Party
Case Nos. 6-CA-40375
6-CA-40376
DECISION AND ORDER
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 Case No. 6-CA-40375. No
exceptions were filed with regard to such finding. The Judge further found that the Respondent had
engaged in the unfair labor practices alleged in Case No. 6-CA-40376, and recommended that the
Respondent be ordered to cease and desist therefrom and take certain affirmative action. Thereafter,
the Respondent filed exceptions with regard to the Judge's Decision in Case No. 6-CA-40376, and the
General Counsel filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal
Service Labor - Management Relations Statute (the Statute), the Authority has reviewed the rulings of
the Judge and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon
consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's
findings and conclusions, and his recommended Order as amended. [ v21 p679 ]
ORDER
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 in Case No. 6-CA-40376 that the United States
Department of Defense, Department of the Air Force, Air Force Logistics Command, Oklahoma City Air
Logistics Center, Tinker Air Force Base Oklahoma shall:
1. Cease and desist from:
(a) Requiring all employees in the paint hangar to work regularly scheduled overtime on normal workdays
and days off without first notifying the American Federation of Government Employees, AFL - CIO, Local
916, the designated agent of the employees' exclusive representative, of the decision and affording it
the opportunity to negotiate concerning the procedures that management will observe in effecting such
scheduling and appropriate arrangements for employees adversely affected by the scheduling.
(b) In any like or related manner 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
Statute:
(a) Upon request, negotiate with the American Federation of Government Employees, AFL - CIO, Local 916,
the designated agent of the employees' exclusive representative, concerning the procedures that
management will observe in requiring all employees in the paint hangar to work regularly scheduled
overtime on normal work days and days off and appropriate arrangements for employees adversely affected
by such act.
(b) Post at its Tinker Air Force Base Facility 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
Commander, Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma, or a designee, and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin
boards and other places where notices to employees are customarily posted. Reasonable steps shall be
taken to insure that said Notices are not altered, defaced, or covered by any other material.
[ v21 p680 ]
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director,
Region VI, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order,
as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the allegations in Case No. 6-CA-40375 be, and they hereby are, dismissed.
Issued, Washington, D.C., May 9, 1986.
Jerry L. Calhoun Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
[ v21 p681 ]
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 require all employees in the paint hangar to work regularly scheduled overtime on normal
workdays and days off without first notifying the American Federation of Government Employees, AFL -
CIO, Local 916, the designated agent of the employees' exclusive representative, of the decision and
affording it the opportunity to negotiate concerning the procedures that management will observe in
effecting such scheduling and appropriate arrangements for employees adversely affected by the
scheduling.
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 Federal Service Labor - Management Relations Statute.
WE WILL upon request, negotiate with the American Federation of Government Employees, AFL - CIO, Local
916, the designated agent of the employees' exclusive representative, concerning the procedures that
management will observe in requiring all employees in the paint hangar to work regularly scheduled
overtime on normal work days and says off and appropriate arrangements for employees adversely
affected by such act.
__________________________________
(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. [ v21 p682 ]
If employees have any questions concerning this Notice or compliance with its provisions, they may
communicate directly with the Regional Director, Region VI, Federal Labor Relations Authority, whose
address is: Federal Office Building, 525 Griffin Street, Suite 296, Dallas, TX 75202, and whose
telephone number is: (214) 767-4996. [ v21 p683 ]
UNITED STATES DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE AIR FORCE,
AIR FORCE LOGISTICS COMMAND,
OKLAHOMA CITY AIR LOGISTICS CENTER,
TINKER AIR FORCE BASE, OKLAHOMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916
Charging Party
Case Nos. 6-CA-40375
6-CA-40376
Lt. Col. Jerry M. Brasel
For the Respondent
John B. Monnet, Esq.
For the Charging Party
Susan E. Jelen, Esq. and
Christopher J. Ivits, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This matter arose under the Federal Service Labor - Management Relations Statute, Chapter 71 of
Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq.
Upon unfair labor practice charges filed by the American Federation of Government Employees, AFL -
CIO, Local 916 (herein referred to as the Union) the General Counsel of the Authority, by the
Regional Director for Region VI, issued Complaints against the United States Department of Defense,
Department of the Air Force, Air Force Logistics Command, Oklahoma City [ v21 p684 ] Air Logistics
Center, Tinker Air Force Base, Oklahoma (herein referred to as Respondent). The Complaint in Case
No. 6-CA-40375 alleges Respondent violated section 7116(a)(1) and (5) of the Statute by failing and
refusing to bargain with the Union on the impact and implementation of its decision to extend its
employees' workweek from four to seven days at the Tinker Air Force Base paint hanger. The General
Counsel also contends Respondent violated section 7116(a)(1) and (6) of the Statute by allegedly
failing and refusing to allow the Union reasonable time to invoke the proceedings of the Federal
Service Impasses Panel (FSIP) before implementing the extended workweek. In Case No. 6-CA-40376 the
General Counsel alleges Respondent violated section 7116(a)(1) and (5) of the Statute when it
required employees to work 10-hours a day for five days and 8-hours on the employees' first regular
day off and failed and refused to bargain with the Union on the impact and implementation of that
action.
A hearing on these matters was conducted in Oklahoma City, Oklahoma at which all parties were
represented by counsel and afforded full opportunity to adduce evidence, call, examine and cross-
examine witnesses and argue orally. Briefs were filed by Counsel for the General Counsel and
Respondent and have been carefully considered.
Upon the entire record in this matter, my observation of the witnesses and their demeanor and from
my evaluation of the evidence, I make the following:
Findings of Fact
At all times material herein the American Federation of Government Employees (AFGE) has represented
a national consolidated unit of various of Respondent's Air Force Logistics Command employees and AFGE
Local 916 has been the union representative at the Oklahoma City Air Logistics Center. Respondent and
AFGE are parties to a master collective bargaining agreement covering employees in the national
consolidated unit and Respondent and Local 916 are parties to a local agreement executed July 5, 1983
which supplemented the master agreement.
Case No. 6-CA-40375
Sometime prior to January 12, 1984 Respondent was experiencing problems keeping up with the work load
in its Tinker Air Force Base paint hanger. The paint hanger work load was not being met on the
standard five day week despite employees working substantial overtime due, at least in part, to "some
continuous problems with work flow." Indeed, there was [ v21 p685 ] "some talk" about the possibility
of contracting out work if the work load requirements were not met. Similar problems in 1981 and 1982
precipitated Respondent putting paint hanger employees on a seven day workweek. Accordingly, on January
12, Freddie Demerson, chief of the Aircraft Paint Unit, sent the following letter to James Edgar, Local
916 Division Steward:
"1. This letter is to inform you, in accordance with Article 33 of the 1979 Master Labor Agreement, as
amended, of Management's intent to implement a seven day work week in the Aircraft Paint Hanger, MABPCB,
Bldg 2280. The proposed effective date of this action is 1 Feb 84.
"2. Change is necessary because of facility deficiencies which remain after the buildings airflow
modification. A continuing high workload in B52, A7, KC135 and MISTR paint projects causes work staging
which can best be managed on a 7 day work sheet.
"3. Should you wish to negotiate, contact the undersigned within 5 calendar days of the date of receipt
of this letter."
By letter dated January 17, 1984 from Edgar to Demerson the Union made a demand to bargain on the seven
day workweek and requested a meeting to "clarify the issues involved." After starting, "there will be
no implementation of this policy until negotiations are completed in accordance with Public Law," Edgar
suggested the parties meet on January 20. Demerson's January 19 reply to Edgar viewed the Union's demand
to bargain unaccompanied by written proposals "as an attempt to circumvent the spirit and intent of
article 33 of the (master agreement)." Demerson went on to suggest meeting January 23 but required the
Union on submit written proposals by the close of business that day if it wished to negotiate on the
"impact" of the decision.
On January 24, 1984 Edgar and Chief Steward Phil Porter met with Demerson, Labor Relations Specialist
Richard Schamahorn and Section Chief Wesley Bynum. The Union presented a five page list of negotiation
proposals to management. During the meeting, which was in response to the Union's request for
clarification of the issue, supra, management [ v21 p686 ] explained why Respondent felt the seven day
workweek was necessary and the Union's list of proposals were discussed item by item. The meeting lasted
approximately one hour at the conclusion of which management indicated to the Union that it would prepare
a counterproposal. On February 17, 1984 Respondent delivered its counterproposal to the Union which
contained, inter alia, a rotation schedule of employees' days off. Around this time Division Steward
Edgar was relocated to another Division and Steward Frederick Jaynes assumed responsibility for
negotiations on behalf of the Union. By letter of February 27, 1984 Demerson indicated the agency had
not received a response to its counterproposal of February 17 and set a meeting with the Union for
February 29. Demerson further stated that failure to attend the meeting would result in immediate
implementation of "management's final offer."
The parties met again on March 1, 1984. Jaynes represented the Union and Respondent was represented by
Schamahorn, Demerson and another supervisor. Jaynes asked for and received a copy of Respondent's
February 17 counterproposals which he did not have and Jaynes presented Respondent with a copy of the
Union's latest proposals. According to Jayne's testimony, when he was handed his copy of Respondent's
one page list of proposals Schamahorn said "something to the effect that they need to get this thing
on the road so we can either sign them or they were going to implement it." Jaynes "jokingly" told
Schamahorn that he knew Jaynes wouldn't sign anything without studying it first. Jaynes asked Schamahorn
if he wasn't going to read the Union's latest proposals indicating that some changes form the original
proposals had been made. Jaynes then noted his objection to a management proposal which provided:
"Employees shall have two consecutive scheduled days off except as mutually agreed between the employee
and the employee's supervisor." Jaynes felt that it was the Union's right to negotiate on such a matter,
not the employees'. Schamahorn agreed to strike the proposal and "change it." According to Jaynes,
Schamahorn agreed to at least read the Union's proposals but added that if the Union" ... didn't buy
theirs, then ... it was over with. [ v21 p687 ] They were going to implement it. We were at impasse,
so to speak." Jaynes testified that the meeting ended after about 30 minutes.
According to Schamahorn, who denied the "take it or leave it" statement attributed to him by Jaynes,
during the March 1 meeting management reviewed the Union's two and a half page list of proposals submitted
at that time and compared them with the Union's prior proposals. The Union's main concerns remained the
same as during the parties' first meeting: a 15 minute break period; how employees were to be rotated; and
days off. Schamahorn told Jaynes that the Union's proposals were regressive and unless there was some
movement on it, the parties were at impasse. Before concluding the meeting management had a letter to
Jaynes typed which indicated Respondent considered the Union's latest proposals to be a regression from
its original proposals; that management felt the parties were at impasse; and Respondent intended to
implement its last proposal on March 19, 1984. Schamahorn estimated the meeting lasted an hour.
Jaynes contacted the Federal Mediation and Conciliation Service (FMCS) for assistance on March 8 and the
parties met on Wednesday, March 14, 1984 under FMCS auspices. At this meeting Jaynes represented the Union
and Respondent was represented by Neal Hamilton, an Employee Relations Officer, and Demerson who arrived
about 10 minutes after the meeting began. The Union submitted its third set of proposals, which modified
its previous proposals somewhat, and Respondent resubmitted its prior proposals. At the request of Mr.
Libby, the FMCS mediator, the parties discussed the proposals. Agreement was reached on various proposals
even on some that management had previously rejected. The wording of some proposals was changed to
facilitate mutual acceptability. However, there was no agreement on the subject of "days-off" and the
Union's demand for a 15 minute break. The Union indicated it could not sign any agreement unless it
contained a 15 minute break period for employees and management took the position that it was not
obligated to entertain the 15 minute break proposal and indeed refused to discuss it. Management
contended that break periods were the subject of lengthy discussions when the [ v21 p688 ] parties
local agreement was negotiated in 1983 and the terms of that agreement remain in effect until the
contract was renegotiated or the parties mutually agreed to modify the contract. When it became
apparent that the parties were not going to reach agreement on the disputed issues Demerson said to
Hamilton "well, there is no point in going any further here. Implement it Sunday as scheduled and we
will bite the bullet." Mediator Libby indicated it would be futile to continue and the meeting which
lasted about an hour, ended. On Sunday, March 18, at 10:30 p.m., the beginning of the "grave-yard"
shift, Respondent implemented the seven day workweek in the paint hanger. The extended workweek
schedule was in effect for about nine months and thereafter the parties resumed their prior workweek.
According to Jaynes, when Respondent previously extended the workweek in 1981 and 1982, supra,
proposals were exchanged and "... the agency did the same thing ... they did this time."
Case No. 6-CA-40376
On March 28, 1984 Respondent notified paint hanger employees that due to increased workload, effective
March 31 all employees would start working a 10 hour mandatory workday and employees would be required
to work an 8 hour workday on the employees' first regular day off. Previously, while employees were
frequently required to work overtime on regular workdays and on days off, employees were scheduled to
work eight hours a day, five days a week with two days off.
The Union received no prior notification of this change. On March 28, 1984 Local 916 made a demand that
Respondent bargain with it on the change. On March 30 Respondent refused to bargain with the Union on the
matter. Respondent took the position that it retained the right to determine overtime requirements and
stated: "When overtime must be worked the opportunity (sic) to work will be offered in accordance with
Article 14 of the (Local) Supplement." Article 14 provides: [ v21 p689 ]
"SECTION A: The opportunity for overtime assignments will be rotated equitably, at the lowest supervisory
or work crew level, among employees, by grade, who have the ability to perform the tasks for which
overtime is required. Overtime work will not be assigned as a reward or penalty. When an employee has been
loaned or detailed to the same organization in excess of 30 consecutive days the employee will be removed
from the overtime rosters of his/her assigned organization on the 31st day and placed in the appropriate
spot on the overtime roster of the organization to which loaned or detailed.
"SECTION B: Supervisors will maintain overtime rosters (Appendix), based on service computation date, to
record all overtime that employees work, decline or for which they lack the necessary ability, to assure
that each employee receives an equal opportunity for overtime assignment. Employees' abilities, as they
relate to overtime assignment, will be discussed with employees upon request and a written record of the
discussion will be placed in the employees 971 file. Rosters may be reviewed, upon request by the Steward
who has been designated as representative for the particular organization. Separate rosters will be
established for overtime on scheduled work days and for overtime on scheduled days off of employees.
"SECTION C: When employees are scheduled to work overtime on their regular days off, they will be normally
given a minimum of one and one half work day's notice before the overtime is scheduled to begin. The
designated Division Steward, upon request, will be informed of overtime worked, the number of hours and
employees involved, and the abilities required for the work performed.
"SECTION D: Overtime work will be compulsory only when organizational requirements must be met. When
non-volunteer employees have been compelled to work four consecutive scheduled days off, the appropriate
Branch Steward may request and will be granted a meeting with the appropriate Branch Chief to discuss the
situation. If the problem is not resolved it may be elevated to the next supervisory level. Upon
presentation of valid documentation to the supervisor, an employee may request exemption from compulsory
overtime for reasons of health, education, hardship of religion. The supervisor, upon [ v21 p690 ]
consideration of the provided documentation and the need to have the employee on duty, may grant the
exemption. When overtime requirements cannot be met by volunteers within the supervisory area or work
crew, the supervisor responsible for the work to be performed may solicit (sic) volunteers from other
supervisory work areas or work crews.
"SECTION E: Employees will be allowed a ten minute paid break at the beginning of any overtime period of
two hours or more immediately following an eight hour shift. Employees will be allowed a paid ten minute
break during the middle of each period of four consecutive hours of overtime work.
"SECTION F: Employees called in to work outside of, and unconnected with, their basic work week shall be
paid a minimum of two hour's pay, regardless of whether they are required to work the entire two hours.
Normally an employee shall not be required to stand by or perform make-work routine duties awaiting the
elapse of the entire two hours.
"SECTION G: When employees cannot take advantage of their turn for overtime work assignment opportunities
due to required military meetings they shall not be counted as having declined to work overtime. In such
situations employees will retain their priority on the overtime rosters provided they submit to their
supervisors, upon their return to duty, a statement of attendance signed by the proper military authority.
"SECTION H: When it is determined through the grievance or arbitration process that the grievant, or
grievant's have been denied the opportunity for overtime work in accordance with this article, the sole
remedy shall be payment for the overtime. Such payment is limited to the grievant or grievant's that were
improperly bypassed and cannot exceed the number of employees worked in violation of this article."
Thereafter, the 10 hour workday was put into effect as scheduled. In practice employees were generally
required to work both of their days off and all requests for exemptions from working overtime were denied
by management except for reasons of family death or emergencies.
The record reveals that prior to March 1984 substantial mandatory overtime work had been required of
employees in the paint hanger since 1982 and both before and after the March 1984 change numerous
grievances were filed with regard to overtime assignments and Respondent's alleged misuse of Article 14.
At the time of the hearing paint hanger employees [ v21 p691 ] were no longer working the mandatory 10
hour workday. However, about half of the work crew was still required to work on Saturdays or Sundays due
to the lack of sufficient volunteers for such assignments.
Testimony was also received at the hearing that in the Accessories Division, also a component within
Respondent's Maintenance Directorate, Union representatives were notified by a Branch Chief in June 1984
and November 1984 that mandatory overtime schedules would be imposed. On both occasions management
representatives of the affected units negotiated with Union representatives on the impact of the decision
without raising Article 14 of the Local Supplement as a bar to negotiations.
Discussion and Conclusions
Counsel for the General Counsel alleges Respondent violated the Statute by: (1) failing to give the Union
on January 12, 1984 information sufficient for it to negotiate on the impact and implementation of the 7
day workweek; (2) failing to give the Union sufficient opportunity to invoke FSIP procedures prior to
implementation after impasse on the 7 day workweek negotiations; and refusing to bargain with the Union on
the impact and implementation of the 10 hour workday. Respondent contends: the Union had adequate notice
of the 7 day workweek; the Union had ample opportunity to seek the services of the FSIP before
implementation of the 7 day workweek; and the 10 hour day was an overtime issue covered by the provisions
of Article 14 of the parties local agreement negotiated in July 1983.
Case No. 6-CA-40375
In reject the contention that Respondent failed to give the Union adequate information to negotiate on the
7 day workweek. Management notified the Union of the change almost three weeks before it was to be
implemented thereby giving the Union ample opportunity to make known its desires on the matter. The Union,
by letter dated five days after the date of the notice of the change, indicated an interest in negotiating
on the change and requested clarification of the issues. One week later the parties met and an explanation
was given to the Union and the Union's proposals were received and discussed item by item. The change was
not implemented on February 1 as scheduled and, after receiving Respondent's counterproposals on February
17, the parties met again for discussions on March 1 when an implementation date of March 19 was set. The
parties had still another discussion on March 14 before implementation finally occurred on March 19. It is
clear from the record that at no time did Respondent fail to provide the Union with any and all information
the Union needed or sought for its discussion with Respondent prior to implementation of the [ v21 p692 ]
change. Nor do the facts reveal the Union was in any way harmed by not getting full details of the change
until such time as they sought such data. Accordingly, in the circumstances herein I find Respondent
committed no violation of the Statute by its failure to give the Union specific details of the change when
it announced its intention to implement a 7 day work week on January 12.
I further conclude that Union had reasonable opportunity on the facts herein to invoke the processes of the
FSIP prior to implementation of the 7 day workweek. The Union was aware that Respondent attached some
urgency to the change. Despite employees working substantial amounts of overtime, the paint hanger was not
keeping up with its workload. The change was first announced on January 12 to take effect on February 1,
1984. However, implementation was postponed while negotiations on the subject took place, as the Union
requested. The Union also knew on March 1 that the implementation of the change was rescheduled for March 19.
Indeed management explicitly indicated their concern to "get this thing on the road." However, at no time
after such notification did the Union request postponement of the implementation date. On March 14 the Union
again was told that since the parties were still at impasse, implementation would occur on Sunday (March 18).
Thereafter the Union failed to either request postponement of the implementation for the purpose of seeking
the services of the FSIP, indicate that filing with the FSIP was imminent, or directly invoke the services of
the FSIP.
Further at all three meetings the Union's main concern included obtaining a 15 minute break period which
Jaynes revealed at the March 15 meeting management would have to agree to if a final agreement on the matter
was to be achieved. The Union was well aware of management's strong opposition to such a provision. Thus,
impasse in negotiations was clearly foreseeable and in such circumstances the Union should have been
alerted early on in negotiations that resolution of the matter would in all likelihood involve the services
of the FSIP.
While the time between the March 14 meeting and implementation of the change in workweek at 10:30 p.m. on
March 18 was indeed short, under all the circumstances herein I conclude Respondent did not violate the
Statute by implementing the 7 day workweek herein. Cf. U.S. Customs Service, 16 FLRA No. 31 (1984) and
Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA
No. 32 (1984).
Case No. 6-CA-40376
With regard to Respondent's unilateral implementation of the 10 hour work day, while employees had been
frequently working overtime prior to March 31, 1984, the overtime assignment thereafter was a substantial
[ v21 p693 ] departure from the nature and scope of the past practice. Thus, after the change all
employees were regularly scheduled to work 13 hours a week overtime.
Respondent contends that Article 14 of the Local Supplement controls the assignment of overtime and a
method of dealing with problems arising from overtime assignments. However, Article 14 does not by its
terms specifically indicate that all matters concerning the assignment of overtime and questions arising
therefrom are governed by that provision. Rather, Article 14 appear to treat ordinary concerns regarding
ordinary overtime assignments and questions which might arise in those circumstances. By its notice of
March 28 Respondent created an extraordinary situation by dramatically changing overtime from frequent
assignment to placing all employees on a regular schedule of substantial overtime. Such conduct gave rise
to the possibility of significant questions as to the procedures managements would observe in implementing
its decision and appropriate arrangements for employees adversely affected thereby. For example, the Union
might wish to have proposals considered concerning whether employees would be permitted to work both
scheduled days off on one week and be off both days on the following week; whether agency paid physical
examinations
might be provided after a certain time due to the exhausting nature of extensive overtime for a
substantiated period; and due to the abnormal amounts of overtime required, whether disciplinary
procedures and standards might be modified.
In sum, Respondent essentially urges that with regard to overtime matters, by executing Article 14 the
Union waived its right to negotiate on any matter relating to the assignment of overtime. The Authority has
consistently held that a waiver can be established only by clear and unmistakable conduct. Internal Revenue
Service (District, Region, National Office Units), 16 FLRA No. 124 (1984); Library of Congress, 9 FLRA of 21
(1982). Article 14 does not by its terms waive all Union interest in overtime assignments nor does it
address the question herein. In the absence of other evidence bearing on the application of Article 14,
and considering the extraordinary imposition of overtime herein, I conclude Respondent was obligated to
negotiate with the Union on the procedures management would observe in implementing its decision and
appropriate arrangements for employees adversely affected thereby. Accordingly, by its failure and
refusal to negotiate with the Union I conclude Respondent violated section 7116(a)(1) and (5) of the
Statute.
[ v21 p694 ]
In view of the entire foregoing I recommend the Authority issue the following:
ORDER
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 in Case No. 6-CA-40376 that the United States Department of
Defense, Department of the Air Force, Air Force Logistics Command, Oklahoma City Air Logistics Center,
Tinker Air Force Base, Oklahoma shall:
1. Cease and desist from:
(a) Requiring employees in the paint hanger to work regularly scheduled overtime on normal workdays and
days off without first notifying the American Federation of Government Employees, AFL - CIO, Local 916,
the employees' exclusive representative, of the decision and affording it the opportunity to negotiate
concerning the procedures that management will observe in effecting such scheduling and appropriate
arrangements for employees adversely affected by the scheduling.
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise
of 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 Statute:
(a) Upon request, negotiate with the American Federation of Government Employees, AFL - CIO, Local 916, the
employees' exclusive representative, concerning the procedures management will observe in requiring
employees in the paint hanger to work regularly scheduled overtime on normal work days and days off and
appropriate arrangements for employees adversely affected by such act.
(b) Post of its Tinker Air Force Base facility 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 Commander,
Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be taken to insure that said Notices
are not altered, defaced, or covered by any other material. [ v21 p695 ]
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of
Region VI, Federal Labor Relations Authority, Federal Office Building, 525 Griffin Street, Suite 926, Dallas,
Texas 75202, in writing, within 30 days from the date of this Order, as to what steps have been take to
comply herewith.
It is further ordered that the allegations in Case No. 6-CA-40375 be, and hereby are, dismissed.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: April 18, 1985
Washington, D.C.
[ v21 p696 ]
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT require employees in the paint hanger to work regularly scheduled overtime on normal workdays
and days off without first notifying the American Federation of Government Employees, AFL - CIO, Local
916, the employees' exclusive representative, of the decision and affording it the opportunity to negotiate
concerning the procedures that management will observe in effecting such scheduling and appropriate
arrangements for employees adversely affected by the scheduling.
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 Federal Service Labor - Management Relations Statute.
WE WILL upon request, negotiate with the American Federation of Government Employees, AFL - CIO, Local 916,
the employees' exclusive representative, concerning the procedures management will observe in requiring
employees in the paint hanger to work regularly scheduled overtime on normal work days and days off and
appropriate arrangements for employees adversely affected by such act.
_______________________
(Activity)
Dated: _______________________ By: _______________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. [ v21 p697 ]
FOOTNOTES
Footnote 1 In adopting the Judge's conclusion herein, the Authority finds it unnecessary to address any
implication in his decision as to the effect of an invocation for assistance of the Federal Service
Impasses Panel.
Footnote 2 In agreement with Respondent's exception pertaining to the clarity of the Judge's recommended
Order, the Authority has amended the Order to specifically conform to the Judge's findings.
Footnote 3 Paint hanger employees organizationally are part of Respondent's Maintenance Directorate,
Aircraft Division and numbered approximately 175.
Footnote 4 Section 33 of the master agreement sets forth procedures dealing with negotiations during the
term of the agreement. Section 33.03 pertains to negotiations at the activity level and requires the Union
to submit written proposals to the activity within five calendar days after notification "if circumstances
permit that much time."
Footnote 5 Porter recalled the meeting went on for about 15 minutes and Schamahorn estimated the meeting
was an hour to an hour and a half long. Both witnesses testified that the meeting covered management's
explanation of its reason for going to a seven day workweek and a review of the Union's proposals.
Considering the amount of material covered in this meeting, I find Schamahorn's recollection as to the
duration of the meeting to be more reliable.
Footnote 6 Jaynes was unable to attend the meeting on February 29 and the meeting was rescheduled.
Footnote 7 Schamahorn "felt" that during the January 24 meeting with Edgar and Porter where was agreement
that the Union would modify their demands and, in recognition thereof, management's current proposals were
drawn up to address what they perceived to be the Union's concerns.
Footnote 8 Jaynes and Hamilton testified as to what occurred at this session. The following account is a
composite of their credited testimony. While their versions of what transpired different somewhat, neither
specifically contradicted the essentials of the others' testimony.
Footnote 9 The Supplemental Agreement provides for a 10 minute paid break at the beginning of any overtime
period of 2 hours or more immediately following an 8 hour shift and a 10 minute break during the middle of
each period of 4 consecutive hours of overtime work, infra.
Footnote 10 When asked why he didn't subsequently contact the FSIP, Jaynes testified: "Well, I was really
a little bit unfamiliar with that procedure, and I didn't see how we could come and solve an impasse when
they were already doing it."
Footnote 11 The Maintenance Directorate is composed of various divisions and is comprised of approximately
10,000 employees.
Footnote 12 I reject the request that as part of the remedy for Respondent's conduct disciplinary actions
which may have occurred during the period Respondent failed to bargain over the change be rescinded.
Imposing this remedy would be tantamount to ordering a return to the status quo ante for remedy purposes
and in my view, the record herein does not support such a remedy. St. Federal Correctional Institution,
8 FLRA 604 (1982) and Headquarters, 77th U.S.Army Command, Fort Totten, New York, 9 FLRA 762 (1982).