32:0206(35)NG - - NAGE, SEIU and VA Medical Center, Newington, CT - - 1988 FLRAdec NG - - v32 p206
[ v32 p206 ]
The decision of the Authority follows:
32 FLRA No. 35
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, SEIU, AFL-CIO
VETERANS ADMINISTRATION MEDICAL
CENTER, NEWINGTON, CONNECTICUT
Case No. 0-NG-1495
DECISION AND ORDER ON NEGOTIABILITY APPEAL
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of a single proposal. The proposal seeks to maintain the practice of providing the Agency's Dietetic Service employees with one daily 30-minute break period. We find that the proposal is outside the duty to bargain because it conflicts with 5 C.F.R. § 551.411, which is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute.
The past practice of one (1) thirty (30) minute break period be maintained as a status quo condition of employment for Dietetic Service employees. This practice has been in effect for approximately twenty (20) years.
III. Positions of the Parties
The Agency argues that the proposal is nonnegotiable because it is inconsistent with 5 C.F.R. § 551.411, which the Agency claims is a Government-wide regulation within the meaning of section 7117(a) of the Statute. The Agency contends that 5 C.F.R. § 551.411 permits rest periods which do not exceed 20 minutes in length to be considered as hours of work. Agency Statement of Position at 2. The Agency contends that since the proposed 30-minute rest period exceeds this limitation, the proposal is inconsistent with 5 C.F.R. § 551.411 and the proposal is, therefore, outside the duty to bargain under section 7117(a) of the Statute. Finally, the Agency argues that it is permitted to make such a change even if a past practice of granting 30-minute rest periods had existed because an Agency is not permitted to maintain a practice which is inconsistent with Government-wide regulation.
The Union contends that the proposal does not interfere with management's reserved right to schedule work or assign duties. The Union further argues that the regulation cited by the Agency is a "guideline" which does not address the number of rest periods allowed in a workday or whether the rest periods are to be taken individually or may be combined. The Union alludes to the past practice whereby the Agency allowed the affected employees to combine their allotted two 15-minute rest periods into a combined 30-minute rest period. Finally, the Union asserts that the Authority, in American Federation of Government Employees, AFL-CIO, National Council of Social Security Field Office Locals and Department of Health and Human Services, Social Security Administration, 24 FLRA 842, 842-44 (1986) (Proposal 1) (Social Security Administration), found negotiable a proposal which would provide aggregate rest periods far in excess of the 20 minutes allowed by the regulations relied on by the Agency in this case.
IV. Analysis and Conclusions
The proposal provides for a 30-minute break period for the affected employees. We find the proposal to be inconsistent with a Government-wide regulation and, therefore, outside the duty to bargain under section 7117(a)(1).
5 C.F.R. Part 551 pertains to pay administration for Government employees who are covered under the Fair Labor Standards Act (FLSA), which includes the employees affected by this proposal. The regulation at issue appears in Subpart D of Part 551, which is concerned with the definition of "hours of work" under the FLSA. 5 C.F.R. § 551.411, entitled "Workday," which the Agency claims is a bar to the negotiation of the Union's proposal under section 7117(a) of the Statute, provides that:
(a) For the purposes of this part, "workday" means the period between the commencement of the principal activities that an employee is engaged to perform on a given day, and the cessation of the principal activities for that day. All time spent by an employee in the performance of such activities is hours of work. The workday is not limited to a calendar day or any other 24-hour period.
(b) Any rest period authorized by an agency that does not exceed 20 minutes and that is within the workday shall be considered hours of work.
(c) Bona fide meal periods shall not be considered hours of work.
This regulation has been promulgated by the Office of Personnel Management (OPM) and applies mandatory policy generally to civilian employees of the Federal Government. 5 C.F.R. § 551.102(d). It is, thus, a Government-wide rule or regulation within the meaning of section 7117(a)(1) of the Statute. See Radio Officers Union and National Oceanic and Atmospheric Administration, 19 FLRA 632, 637-39 (1985) (Proposal 2). In our view, 5 C.F.R. § 551.411 limits any single break or rest period within an employee's workday to 20 minutes. By seeking to provide for a 30-minute break period, the proposal is inconsistent with this limitation. We note that the Union does not contend that any portion of its proposed rest period is to be considered outside the workday. Thus, a proposal seeking a 30-minute rest period within the workday is inconsistent with the limitations of 5 C.F.R. § 551.411(b).
The Union, at page 1 of its Reply Brief, indicates that one of the purposes of the proposal is to combine rest periods so as to permit the affected employees, who work an irregular shift assignment, with a "nourishment" period. 5 C.F.R. § 551.411(c) provides that "bona fide meal periods" are not to be considered hours of work and, therefore, such time would not be subject to the limitations on break periods found at 5 C.F.R. § 551.411(b). However, other than the statement in the Reply Brief, there is no indication in the record that the 30-minute period in dispute constitutes a "bona fide meal period." Therefore, we interpret the proposal consistent with its plain wording--"break period." Since the proposal establishes break periods in excess of 20 minutes, we find that it is inconsistent with the mandate of 5 C.F.R. § 551.411(b).
Further, the Union's reliance on Social Security Administration is misplaced. The proposal in Social Security Administration granted employees working on video display terminals (VDTs) a 15-minute break after every hour of work on their VDTs in addition to their regularly scheduled breaks. In concluding that this proposal was negotiable, we relied on the Authority's decisions in American Federation of Government Employees, AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 84-88 (1983) and in American Federation of Government Employees, Local 3342, AFL-CIO and Department of Health and Human Services, Social Security Administration, 19 FLRA 1100 (1985). We found that those decisions established that the granting or scheduling of rest periods is within an agency's duty to bargain as long as employees remain in a duty status during their rest periods so that management retains the right to assign work to them during their rest periods under section 7106(a)(2)(B) of the Statute. Furthermore, in Social Security Administration, there was no evidence that any single rest period would exceed 20 minutes, nor was there an allegation that 5 C.F.R. § 551.411 served as a bar to negotiation of the proposal therein. Thus, our holding in Social Security Administration is consistent with our conclusion in this case. Unlike the proposal in Social Security Administration, the proposal in this case specifically provides for rest periods in excess of the 20-minute limitation specified in 5 C.F.R. § 551.411.
Therefore, we conclude that the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with a Government-wide regulation, specifically, 5 C.F.R. § 551.411.