37:0448(29)NG - - NAGE Local R1-109 and VA, VA Medical Center, Newington, CT - - 1990 FLRAdec NG - - v37 p448


[ v37 p448 ]
37:0448(29)NG
The decision of the Authority follows:


37 FLRA No. 29

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109

(Union)

and

VETERANS ADMINISTRATION

VETERANS ADMINISTRATION MEDICAL CENTER

NEWINGTON, CONNECTICUT (1)

(Agency)

0-NG-1628

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 21, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two proposals submitted by the Union. The Agency withdrew its opposition to Proposal 1, which required that employees normally be given one rest period of 15 minutes for each 4-hour period worked. Accordingly, that proposal will not be considered in this decision.

The dispute concerns the Agency's former practice of permitting its Dietetic Service employees to take 30-minute paid rest breaks. When the Agency decided to abolish that practice on the ground that it was illegal, the Union proposed that it be continued. The Agency declared that proposal to be nonnegotiable and the Union appealed to the Authority. On May 31, 1988, the Authority dismissed the Union's appeal. The Authority concluded that the Union's proposal was outside the duty to bargain because it was inconsistent with a Government-wide regulation. National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Newington, Connecticut, 32 FLRA 206 (1988) (Veterans Administration Medical Center, Newington).

After the Authority issued its decision in Veterans Administration Medical Center, Newington, the Union submitted new proposals to the Agency. The Agency declared those proposals to be nonnegotiable and the Union appealed.

Proposal 2 would allow employees to take rest periods of up to 30 minutes by adding various periods of nonduty (that is, nonpaid) time to the normal duty day. As we construe the proposal, the 30-minute rest periods would include both paid and unpaid time. We find that Proposal 2 is negotiable under section 7117(a)(1) of the Statute because it is not inconsistent with any law, rule or Government-wide regulation. Proposal 3 seeks to maintain the parties' practice of permitting certain employees to take 30-minute paid rest periods until the negotiability of the Union's proposals is decided. Because the proposal concerns a practice that is inconsistent with 5 C.F.R. § 551.411, a Government-wide regulation, we find that Proposal 3 is outside the duty to bargain.

II. Proposal 2 (2)

All Dietetic Service Employees hired prior to May 31, 1988, will be allowed the following options pursuant to section 7106(b)(3), regarding rest periods:

(a) The workday will be extended for a period of ten (10) minutes, pursuant to section 6101(a)(3)(F) of 5 USC, employees will normally be allowed rest periods of twenty (20), and ten (10) minutes respectively, and employees may use the ten minute extension in conjunction with their 20 minute rest period.

(b) The workday will be extended for a period of fifteen (15) minutes pursuant to section 6101(a)(3)(F) of 5 USC, employees will normally be allowed two fifteen (15) minute rest periods, and employees may use the fifteen minute extension in conjunction with one of their 15 minute rest periods.

(c) The workday will be extended for a period of thirty (30) minutes pursuant to section 6101(a)(3)(F) of 5 USC, employees will normally be allowed two fifteen (15) minute rest periods, and one thirty minute non-duty period[.] [T]he Parties will negotiate as to the scheduling of the 30 minute period.

A. Positions of the Parties

The Agency argues that sections (a) and (b) of Proposal 2 are inconsistent with law and Government-wide regulation. The Agency asserts that 5 U.S.C. § 6101(a) prevents workday extensions beyond 8 hours unless the Agency head determines that the Agency would be seriously handicapped in carrying out its functions or costs would be substantially increased. Because the proposal requires the Agency to extend the workday without regard to whether the Agency head has made the determination required by 5 U.S.C. § 6101(a)(3)(D), the Agency contends that the proposal conflicts with law and is nonnegotiable.

The Agency also asserts that because sections (a) and (b) of the proposal "effectively allow employees to have thirty-minute rest periods," the proposal conflicts with: (1) 5 C.F.R. § 551.411(b), a Government-wide regulation; and (2) the Authority's decision in Veterans Administration Medical Center, Newington. Statement of Position at 9.

Finally, the Agency argues that section (c) of the proposal conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency states that because section (c) requires extending the workday and "adding the thirty minutes as a non-duty period," the proposal is inconsistent with Authority precedent holding that break periods are negotiable only if employees remain on duty time and subject to the assignment of work. Statement of Position at 7.

The Union did not file a response to the Agency's statement of position in this case. The Union states that it drafted its proposals in this case "to comport" with the Authority's interpretation of 5 C.F.R. § 551.411(b) as set forth in Veterans Administration Medical Center, Newington. Petition for Review at 1. The Union also states that the purpose of the proposals is to "phase out gradually, the thirty minute rest periods granted to unit employees" and thus to alleviate the effect on employees of the termination of "the practice of thirty minute rest periods that are within the workday." Id.

B. Analysis and Conclusions

1. Proposal 2 Is Consistent with Applicable Law and Regulation

We conclude that Proposal 2 is consistent with law, rule and Government-wide regulation and, therefore, is negotiable under section 7117(a)(1) of the Statute.

Sections (a) and (b) of the proposal would require the Agency to: (1) create break periods of 10 and 15 minutes, respectively, in the normal workday under the authority provided in 5 U.S.C. § 6101(a)(3)(F); (2) provide employees with the option of using those periods in conjunction with an established paid rest period of 20 and 15 minutes, respectively; and (3) extend the workday by 10 or 15 minutes, respectively, to offset the additional breaks in the workday created pursuant to 5 U.S.C. § 6101(a)(3)(F). Section (c) of the proposal would require the Agency to: (1) create a nonduty break period of 30 minutes in the normal workday under the authority provided in 5 U.S.C. § 6101(a)(3)(F); (2) retain two normally scheduled employee rest periods of 15 minutes each; (3) negotiate the placement of the 30-minute break period within the workday; and (4) extend the workday by 30 minutes to offset the nonduty break period added to the workday.

In determining the negotiability of Proposal 2, we must first consider the meaning of the "break" periods that sections (a) and (b) of the proposal would insert into, and the "nonduty" period that section (c) of the proposal would add to, the workday. Because the proposal requires the Agency to exercise its authority under 5 U.S.C. § 6101(a)(3)(F) to create those periods, the meaning of the proposal is dependent on the nature and scope of the authority provided by that statutory provision. 5 U.S.C. § 6101(a)(3)(F) provides that, unless the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, the agency head shall provide that "breaks in working hours of more than 1 hour may not be scheduled in a basic workday." See Appendix. This statutory provision affords agencies the discretion to establish breaks in working hours, that is, nonwork or nonduty periods (noncompensated periods), during the workday, as long as those periods do not exceed 1 hour. See, for example, American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Services, Social Security Administration, 25 FLRA 600, 603 (1987) (Social Security Administration) (time set aside for eating pursuant to 5 U.S.C. § 6101 not considered "hours of work" for purposes of compensation). See also Comp. Gen. No. B-189040 (July 7, 1978) (unpublished) (because 5 U.S.C. § 6101(a)(3)(F) does not permit breaks in working hours that exceed 1 hour, split shifts are prohibited).

Moreover, as the Authority held in Social Security Administration, where a break in working hours, such as a lunch period, is extended by a given amount of time, for example, 15 minutes, there must be an offsetting 15-minute extension of the workday. Otherwise, employees would not complete the 8 hours of work provided under 5 U.S.C. § 6101(a)(3)(D). See Social Security Administration, 25 FLRA at 605.

Because Proposal 2 provides for breaks in the workday under the authority established in 5 U.S.C. § 6101(a)(3)(F) and, further, provides that those breaks be offset by extensions of the workday, we conclude that the Union intended the proposal to require the Agency to establish nonduty/noncompensated "rest periods," in addition to the compensated rest periods scheduled by the Agency, so as to permit employees to have 30-minute "rest breaks" made up partially of duty time and partially of nonduty time.

The issue presented, therefore, is whether the Agency is legally permitted to establish employee work schedules in the manner required by Proposal 2. The establishment of work schedules for Federal employees is governed by 5 U.S.C. §§ 6101 et seq. and its implementing regulations, 5 C.F.R. Part 610. (For the text of relevant portions of the statutory provisions and the regulations, see the Appendix to this decision.) As relevant to this case, the statute provides for five 8-hour workdays in a 40-hour workweek that must be scheduled at least 7 days in advance and contain the same hours. The statute also provides, as noted above, that breaks in the workday may not exceed 1 hour. Moreover, as the Authority found in Veterans Administration Medical Center, Newington, applicable law and regulations permit an agency to establish rest periods during duty time--compensated "rest breaks"--that do not exceed 20 minutes. See Appendix for the text of 5 C.F.R. § 551.411(b).

In sum, except for statutory and regulatory exceptions that do not apply to this case, see 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.111(b), as long as an agency establishes a work schedule that includes five 8-hour workdays in a workweek and contains no breaks longer than 1 hour, the work schedule so established is consistent with law and regulation.

None of the work schedules contemplated by the subsections of Proposal 2 is inconsistent with the requirements for the scheduling of a regular administrative workweek set forth in law and regulation. By offsetting the breaks in working hours provided for by the proposal with equivalent extensions of the workday, each of the subsections of the proposal ensures an 8-hour workday. Moreover, because the breaks in working hours required by the proposal are noncompensated periods, the offsetting extension of the workday does not involve overtime.

We note, in addition, that 5 U.S.C. § 6101(a)(3)(F) does not limit the number of breaks in a workday or the purpose of breaks in working hours. Because 5 U.S.C. § 6101(a)(3)(F) is stated in the plural--"breaks"--it would appear to permit more than one break in working hours or different types of breaks. The effect of that section, therefore, is not limited to the establishment of only lunch breaks. See, for example, Comp. Gen. No. B-189040 (July 7, 1978) (unpublished), cited above.

We also find that because the proposal establishes periods of nonduty time, those periods of nonduty time are not compensated rest periods subject to the 20-minute limitation provided in 5 C.F.R. § 551.411(b). 5 C.F.R. § 551.411(b) neither precludes a nonduty rest period nor prevents the addition of a nonduty rest period to a compensated rest period. That section limits only the length of a compensated rest period.

We conclude, therefore, that the Agency's reliance on the Authority's decision in Veterans Administration Medical Center, Newington is misplaced. In that case, the Authority held that a proposal requiring the Agency to maintain its past practice of giving employees in its Dietetic Service 30-minute rest breaks was inconsistent with 5 C.F.R. § 551.411(b). Unlike the proposal in Veterans Administration Medical Center, Newington, Proposal 2 herein does not require the Agency to provide employees with compensated rest breaks in excess of 20 minutes.

The Agency claims that Proposal 2 is inconsistent with 5 U.S.C. § 6101(a) because it requires the Agency to extend the workday beyond 8 hours regardless of whether the Agency head has determined that the Agency would be seriously handicapped in carrying out its functions or costs would be substantially increased without such an extension. We conclude that the Agency has misinterpreted the intent of Proposal 2. The proposal does not require extensions of the workday beyond 8 hours. The proposal requires an extension of the workday so that employees will work a full 8 hours: the extension of the workday offsets the break in working hours provided under the proposal. In particular, the proposal is not inconsistent with 5 U.S.C. § 6101(a)(3) because that provision is concerned with changing the 5-day, 40-hour workweek requirement. The proposal does not prescribe the particular daily schedule that the Agency must adopt in order to implement the 5-day, 40-hour workweek. Under the proposal, the scheduling of the workweek remains within the Agency's discretion. Proposal 2 would affect only the length of the employee workday, not the length of time the employee is in a duty status.

Where an agency has discretion over a matter affecting conditions of employment, the agency is obligated under the Statute to exercise that discretion through bargaining to the extent that bargaining is consistent with statutory and regulatory limits on that discretion. See American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1060 (1988), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989) (order). Based on our conclusions set forth above, we find that applicable law and regulation do not prohibit a union from seeking to negotiate an additional period of nonduty time that could be added to an established paid rest break so as to provide employees with a combined compensated/noncompensated 30-minute rest period. Of course, as noted above, the workday would have to be extended by an amount of time equivalent to the additional period of nonduty time negotiated. Consequently, we conclude that the Agency has discretion under law and regulation to negotiate on Proposal 2. We note that our decision addresses only the addition of nonpaid time scheduled under the authority provided in 5 U.S.C. § 6101(a)(3)(F), and does not address a proposal that attempts to add periods of paid time to a previously existing paid rest period.

Accordingly, we find that Proposal 2 is consistent with applicable law and regulation within the meaning of section 7117(a)(1) of the Statute.

2. Subsection (c) of Proposal 2 Does Not Directly Interfere With Management's Right to Assign Work

The Agency argues that subsection (c) of Proposal 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute because it is inconsistent with Authority precedent that break periods are negotiable only if employees remain on duty time and are subject to the assignment of work. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Jamestown, New York District Office, Jamestown, New York and American Federation of Government Employees, Local 3342, 34 FLRA 765, 769-70 (1990). The Agency's argument is based on the requirement of subsection (c) that the workday be extended to offset a 30-minute nonduty period during which employees would not be subject to work assignment. However, nothing in the proposal or in the Union's appeal indicates that management would be precluded from assigning work to employees during their 30-minute nonduty period, although such assignments might, depending on the circumstances, constitute overtime. Moreover, the Agency misinterprets the Authority precedent. The cases referenced by the Agency concern breaks on duty time. The breaks in working hours provided under the subsections of this proposal concern nonduty time. Subsection (c) of Proposal 2 does not, therefore, affect the ability of the Agency to assign work to employees whose breaks are on duty time and is not otherwise inconsistent with management's right to assign work.

3. Conclusion

Because we find that Proposal 2 is consistent with law and regulation and that subsection (c) does not interfere with management's right to assign work, we conclude that Proposal 2 is negotiable.

III. Proposal 3

The Employer will not change the current practice until such time as the negotiability of the Union['s] proposals [is] decided, pursuant to the parties['] M.O.U., and the issue is negotiated to final agreement.

A. Positions of the Parties

The Agency argues that the doctrine of res judicata bars a negotiability determination concerning Proposal 3. The Agency contends that "[t]he negotiability of this proposal is moot" because the negotiability issues presented by the proposal were decided in favor of the Agency in Veterans Administration Medical Center, Newington. Statement of Position at 3.

The Union did not file a response to the Agency's statement of position.

B. Analysis and Conclusion

Proposal 3 would prevent the Agency from changing its current practice regarding rest breaks for Dietetic Service employees until the negotiability issues in this case are decided and, pursuant to the parties' Memorandum of Understanding, negotiated to final agreement.

The Authority determined in Veterans Administration, Newington that the practice of 30-minute paid rest breaks is contrary to 5 C.F.R. § 551.411(b), a Government-wide regulation. Requiring the Agency to continue that practice is likewise contrary to 5 C.F.R. § 551.411(b). Consequently, Proposal 3 conflicts with 5 C.F.R. § 551.411(b), a Government-wide regulation, and is outside the duty to bargain under section 7117(a)(1) of the Statute.

We recognize that proposals requiring an agency to maintain the status quo during bargaining or pending the resolution of a negotiability appeal have been found to be negotiable procedures under section 7106(b)(2) of the Statute. See, for example, Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 739-42 (1987) (OEA), enforced as to other matters by en banc order sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1735 (D.C. Cir. June 22, 1990); American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004, 1015-16 (1982) (U.S. Marshals Service).

Proposal 3 in this case, however, is distinguishable from OEA and U.S. Marshals Service. In those cases, the proposals required the agency to maintain the status quo where there had been no determination that maintenance of the status quo was illegal. In Veterans Administration, Newington, as noted above, the Authority determined that the Agency's practice of providing 30-minute paid rest breaks to employees is illegal because it is contrary to a Government-wide regulation. Inasmuch as the Authority previously determined that the Agency's practice of providing 30-minute paid rest breaks to employees is illegal, proposal 3 could not constitute a negotiable procedure under section 7106(b)(2) because it would require the Agency to continue an illegal practice.

IV. Order

The Agency must, upon request or as otherwise agreed to by the parties, bargain on Proposal 2.(3) The petition for review concerning Proposal 3 is dismissed.

APPENDIX

5 U.S.C. § 6101(a)(2) and (3) provide as follows:

[a](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.

5 C.F.R. § 551.411(b) provides as follows:

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.

5 C.F.R. § 610.111(b) provides as follows:

When it is impracticable to prescribe a regular schedule of definite hours of duty for each workday of a regularly scheduled administrative workweek, the head of an agency may establish the first 40 hours of duty performed within a period of not more than 6 days of the administrative workweek as the basic workweek. A first 40-hour tour of duty is the basic workweek without the requirement for specific days and hours within the administrative workweek. All work performed by an employee within