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. W