25:0600(45)NG - AFGE Local 3231 and HHS, SSA -- 1987 FLRAdec NG



[ v25 p600 ]
25:0600(45)NG
The decision of the Authority follows:


 25 FLRA No. 45
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 AFL CIO, LOCAL 3231
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, SOCIAL 
 SECURITY ADMINISTRATION
 Agency
 
                                            Case No. 0-NG-687
                                            17 FLRA 554
 
                       DECISION AND ORDER ON REMAND
 
                         I.  Statement of the Case
 
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit.  In
 the decision remanded by the Court, the Authority had found the
 following proposal nonnegotiable.
 
       Upon request all employees in Area IV will be granted paid time
       without charge to leave, up to 5 minutes before and up to 5
       minutes after the lunch period, for the purpose of preparation and
       cleanup.
 
    In its ruling, the Authority relied solely upon a decision of the
 Comptroller General.  In remanding the case, the Court stated that while
 the Comptroller General's decision had precedential value, it lacked
 binding force and that the Authority was required to evaluate
 independently the Union's proposal against the applicable provision of 5
 U.S.C. Section 6101.  The Court noted that the Office of Personnel
 Management (OPM), as contrasted with the Comptroller General or the
 Authority, is responsible for administering 5 U.S.C. Section 6101.  We
 solicited an advisory opinion from OPM as to whether the proposal is
 consistent with that section.  The response of OPM is attached to this
 decision as Appendix.  The parties filed comments on the OPM response.
 
                   II.  Positions of OPM and the Parties
 
    OPM is of the opinion that the proposed extension of the lunch period
 without a matching extension of the workday violates the requirement in
 5 U.S.C. Section 6101(a)(2)(A) for a 40-hour workweek.  The Agency
 agrees with OPM's position.  The Union does not.  The Union contends
 that nothing in 5 U.S.C. Section 6101 specifically prohibits adding a
 paid extension to the unpaid lunch period.  Additionally, it asserts
 that the Agency has broad discretion to excuse employees from work with
 pay and without charge to leave.  Consequently, it contends that the
 proposal is negotiable.
 
                       III.  Analysis and Conclusion
 
    As explained by the Union, the proposal was put forth in response to
 the Agency's action in terminating a practice of allowing employees 45
 minutes, rather than 30, for lunch without requiring a corresponding 15
 minute extension of the work day.  According to its submissions the
 Union seeks 5 minutes "paid time without change to leave" on each end of
 the lunch period to allow employees time for preparation and cleanup in
 the lunchroom.
 
    Section 6101 of title 5 requires that the basic workweek consist of
 40 hours of "work." /1/ The issue presented by this dispute is,
 essentially, whether time set aside for eating constitutes hours of
 "work" to be counted toward the 40 hour requirement.
 
    The question of what sort of activities constitute "work" or
 "employment" for purposes of compensation has been litigated in the
 context of claims for payment of overtime.  The general rule which has
 evolved is that those activities which are controlled or required by the
 employer and pursued necessarily and primarily for the benefit of the
 employer are compensable as "employment" or "work" under statutes
 governing payment of overtime.  Armour and Co. v. Wantock, 323 U.S. 126
 (1944);  Leone v. Mobil Oil Corporation, 523 F.2d 1153 (D.C. Cir. 1975);
  and NTEU v. Gregg, No. 83-546 (D.D.C. Sept. 28, 1983).  In considering
 the specific issue of whether time set aside for, or devoted to, eating
 is "work" or "employment" for purposes of overtime compensation, the
 Court of Claims has held that it is not unless substantial labor is
 performed in the time set aside for eating (or sleeping).  For example,
 Baker v. United States, 218 Ct. Cl. 602, 617-24 (Ct. Cl. 1978).  In our
 view the holding of the Court of Claims is consistent with the
 definition of "work" or "employment" which has generally been applied in
 questions relating to what activities are compensable for overtime
 purposes.
 
    We see no reason why the concept of what is "work" or "employment"
 should be different for purposes of fulfilling the requirement of a
 basic 40 hour workweek than it is for purposes of overtime compensation.
  We conclude that, insofar as time set aside for eating is concerned,
 generally, such activity cannot be considered "work" or "employment" for
 purposes of fulfilling the requirement for a 40 hour workweek.  Because
 the proposal would effectively require counting time set aside for an
 activity that is not "work, i.e. eating, in the 40 hours of "work"
 required by 5 U.S.C. Section 6101, it conflicts with Federal law and is
 nonnegotiable.  Accord, Decision of the Comptroller General B-190011,
 December 30, 1977.
 
    We also reject the Union's argument that the Agency has discretion to
 implement the proposal under its authority to excuse employees from work
 with pay and without charge to leave.  The circumstances involved in
 this proposal are distinguishable from those under which the Agency is
 authorized to grant such administrative leave.  This proposal would
 effectively require that the Agency excuse employees from work on
 administrative leave on a regular, daily basis.  In our view, the
 provisions which give agencies the authority to grant administrative
 leave /2/ do not authorize them to grant such leave on a regular, daily
 basis.  Rather, the essence of such leave is that it is only occasionl
 or sporadic -- when warranted by specific circumstances which are not a
 part of the daily routine of work.  We conclude that the Agency's
 authority to grant administrative leave does not extend to the type of
 circumstance involved in this proposal.  Compare National Labor
 Relations Board Union, Local 5 and National Labor Relations Board,
 Region 5, 2 FLRA 327 (1979);  and Long Beach Naval Shipyard, Long Beach,
 California and International Federation of Professional and Technical
 Engineers, Local 174, AFL-CIO, 7 FLRA 362 (1981) in which the Authority
 found negotiable proposals which sought grants of such leave on a
 limited or occasional basis.
 
                                IV.  Order
 
    The Union's petition for review is dismissed.  Issued, Washington,
 D.C., February 6, 1987.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In relevant part, that section provides:
 
          Chapter 61 -- Hours of Work
 
          Subchapter 1 -- General Provisions
 
    Section 6101.  Basic 40-hour workweek;  work schedules;  regulations.
 
          (2) The head of each Executive agency, military department, and
       of the government of the District of Columbia shall --
 
          (A) establish a basic administrative workweek of 40 hours for
       each full-time employee in his organization and
 
          (B) require that the hours of work within that workweek be
       performed within a period of not more than 6 of any 7 consecutive
       days.
 
          (3) Except when the head of an Executive agency a military
       department, or of the government of the District of Columbia
       determines that his organization would be seriously handicapped in
       carrying out its functions or that costs would be substantially
       increased, he shall provide, with respect to each employee in his
       organization that --
 
          (A) assignments to tours of duty are scheduled in advance over
       periods of not less than 1 week;
 
          (B) the basic 40-hour workweek is scheduled on 5 days, Monday
       through Friday when possible, and the 2 days outside the basic
       workweek are consecutive;
 
          (C) the working hours in each day in the basic workweek are the
       same;
 
          (D) the basic nonovertime workday may not exceed 8 hours;
 
          (E) the occurrence of holidays may not affect the designation
       of the basic workweek;  and
 
          (F) breaks in working hours of more than 1 hour may not be
       scheduled in a basic workday.
 
    (2) Federal Personnel Manual (FPM), Chapter 610, subchapter 3;  FPM
 Supplement 990-2, Book 610, subchapter S3-2;  FPM, Chapter 630,
 subchapter 11;  FPM Supplement 990-2, Book 630, subchapter S11.
 
 
                               United States
 
                                 Office of
 
                Personnel Management Washington, D.C. 20415
 
                             December 1, 1986
 
    Mr. Harold D. Kessler
 
    Director of Case Management
 
    Federal Labor Relations Authority
 
    500 C Street, S.W.
 
    Washington, D.C. 20424
 
    Re:  American Federation of Government Employees, AFL-CIO, -local
 3231 and Department of Health and Human Services, Social Security
 Administration Case No. 0-NG-687 17 FLRA 554 (1985)
 
    Dear Mr. Kessler:
 
    This is in response to your letter of September 15, 1986, requesting
 an advisory opinion concerning the proper interpretation of civil
 service laws and regulations which pertain to the disputed contract
 proposal in the above referenced case.
 
    The union offered the following contract proposal:
 
          Upon request all employees in Area IV will be granted paid time
       without charge to leave, up to 5 minutes before and up to 5
       minutes after the lunch period, for the purpose of preparation and
       cleanup.
 
    The agency had terminated a 15 minute paid "grace period" connected
 with the half hour unpaid lunch period.  Instead, in those offices where
 the unpaid lunch period was to be greater than 30 minutes, the agency
 decided to extend the office hours by the same amount.
 
    Under 5 U.S.C. Section 6101(a)(2)(A), the head of each Executive
 agency is required to establish a basic administrative workweek of 40
 hours for each full-time employee in the organization.  Normally, the
 40-hour basic workweek is scheduled on 5 days, Monday through Friday.
 Each workday consists of 8 hours with an additional authorized unpaid
 lunch period.  The length of the lunch period is subject to the
 administrative authority of each agency.
 
    A lunch break is a period of time set aside for the purpose of
 eating.  Agency heads have consistently allowed for lunch periods during
 the workday under their general authority to regulate the conduct of
 employees contained in section 301 of title 5, United States Code.
 Normally, an employee is off duty and in a nonpay status during a