U.S. Department of the Air Force, Travis Air Force Base, California (Agency) and American Federation of Government Employees, Local 1764 (Union)

[ v56 p434 ]

56 FLRA No. 64

U.S. DEPARTMENT OF THE AIR FORCE
TRAVIS AIR FORCE BASE, CALIFORNIA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1764
(Union)

0-AR-3174

DECISION

June 16, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Chairman Wasserman for the Authority

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Gerald R. McKay filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement by unilaterally eliminating 20-minute paid, on-the-job lunch breaks enjoyed by certain employees. As a remedy, the Arbitrator ordered the Agency to restore the status quo ante and to provide overtime pay for affected employees. We find, for the reasons set forth below, that the portion of the award ordering the Agency to provide overtime pay for affected employees must be set aside. Accordingly, we remand this case to the parties with the direction that, absent settlement, the case should be submitted to the Arbitrator to determine an appropriate remedy.

II.     Background and Arbitrator's Award

      The Union represents unit employees at Travis Air Force Base, including, as relevant here, employees in the 60th Aerial Port Squadron. This proceeding arose when the Agency discontinued a past practice which permitted certain employees to take 20-minute paid, on-the-job, lunch breaks. Contemporaneously with the cancellation, the Agency required employees to take 30-minute unpaid lunch breaks during which no work was [ v56 p435 ] performed. In the grievance that was thereafter filed, the Union alleged that the Agency's action violated Article 25, section 2(d) of the parties' collective bargaining agreement. [n1]  When the grievance was not resolved, it was submitted to arbitration on the following issue, as stipulated by the parties:

Did management violate the terms of the negotiated agreement when it unilaterally discontinued certain paid, on-the-job, 20-minute lunch breaks in the 60th Aerial Port Squadron[?] If so, what is the appropriate remedy?

Transcript at 7.

      The Arbitrator found that the Agency violated Article 25, section 2(d), as the Union alleged. In arriving at this finding, the Arbitrator noted that the issue of 20-minute paid lunch periods had been discussed by the parties for many years. According to the Arbitrator, this practice was initiated in the 1960s and was expanded in the 1970's and 1980's. However, in 1994, the Agency concluded that employees were taking paid lunch periods without remaining at their stations and performing work, as Federal regulations require. The Agency therefore determined to eliminate paid lunch breaks.

      Prior to negotiations for the parties' current bargaining agreement, the Agency and the Union discussed the issue of alternative work schedules. The Arbitrator found that the Agency sought to eliminate work schedules that permitted employees to work 10 hour work days, 4 days a week. As a result of the parties' discussions, the Union agreed to the elimination of the 10 hour work day in exchange for the retention of the 20-minute paid lunch period. Thereafter, negotiations for the parties' current bargaining agreement were conducted. It was during these negotiations that the language set forth in Article 25, section 2(d)(2) was agreed upon.

      At the hearing, the Union maintained that Article 25, section 2(d)(2) precluded the Agency from eliminating the paid lunch breaks unless it was first determined that they violated a law or Title 5 of the Code of Federal Regulations (C.F.R.). By contrast, the Agency maintained that it had obtained the right to eliminate such lunch breaks during negotiations for the parties' current bargaining agreement.

      The Arbitrator found that in the Union's view, the language set forth in Article 25, section 2(d) meant the existing 20-minute, paid, on-the-job lunch periods would continue to exist unless it was determined that such arrangements violated the law. The Arbitrator further found that the evidence was absolutely clear that the Agency understood this to be the Union's belief. According to the Arbitrator, it was the Agency's view that the above-stated language did not protect the disputed lunch periods as the Union believed. However, the Arbitrator found that the Agency failed to express its view to the Union or its intent to eliminate the lunch periods as soon as negotiations were complete. In these circumstances -- where one party has deliberately mislead another party in the context of collective bargaining -- the Arbitrator found that the Agency was estopped from arguing that the disputed language should be interpreted differently.

      Based on the foregoing interpretation, the Arbitrator found that "[w]hen the [Agency] chose to eliminate the paid, in-place lunches . . . without a specific finding that those lunches violated the law or 5 CFR, it violated Article 25, Section 2(d)(2)." Award at 22. To remedy the violation, the Arbitrator ordered the Agency to reinstate the 20-minute lunch periods and to compensate employees of the 60th Aerial Port Squadron at the "appropriate overtime rate for the additional time they were required to work beyond their eight-hour workday." Id. at 23.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency does not except to the Arbitrator's conclusion that it violated the parties' bargaining agreement by unilaterally eliminating the 20-minute paid, on-the-job lunch breaks. Rather, the Agency disputes the portions of the award that direct the Agency to pay affected employees overtime pay and to reinstate the 20-minute lunch breaks. According to the Agency, the Arbitrator's remedy is contrary to the Fair Labor Standards Act (FLSA) and its implementing regulations.

      With respect to the payment of overtime pay, the Agency contends that the award is deficient because it would require the payment of overtime for periods during which employees were not required to work. In particular, the Agency maintains that under the FLSA, time set aside for eating is not work for purposes of compensation unless it involves activities "controlled or [ v56 p436 ] required by the employer and pursued necessarily and primarily for the benefit of the [employer]." Exceptions at 4 (citing American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 621 (1997) (Fort Rucker). According to the Agency, the regulations clearly state that bona fide meal periods shall not be considered hours of work. Because the employees involved here were not required to perform work during their unpaid lunch periods, the Agency contends that the award of overtime compensation is contrary to law and regulation and must, therefore, be set aside.

      With respect to the reinstatement of the 20-minute lunch breaks, the Agency submits that the "uncontroverted evidence in this case demonstrates that the past practice of a twenty-minute paid, in-place lunch period was illegal." Id. at 6. The Agency asserts, in this regard, that "the general rule is that time set aside for eating is not work for purposes of compensation unless employees are regularly required to perform substantial labor during those meal periods." Id. at 7. The Agency further asserts that an unpaid lunch period is not part of an employee's 40-hour administrative work week established under 5 U.S.C. § 6101(a)(2)(A). According to the Agency, if the grievants were not being required to perform substantial labor during the "former twenty-minute paid, in-place lunch period, the past practice of compensating them for this lunch period was illegal and the Arbitrator cannot order the [Agency] to return to this past practice." Id. The Agency also contends that "the former illegal twenty-minute paid, in-place lunch period cannot be considered as part of the employees' 40-hour administrative work week." Id. Accordingly, the Agency maintains that the award in this case must be set aside.

B.     Union's Opposition

      In its opposition, the Union asserts that the Agency's exceptions should be denied. Although the Union acknowledges "as a general proposition" that overtime compensation cannot be ordered for work not performed, it submits that this proposition is not applicable to the instant grievance "because the remedy addresses a period of time in which employees would have been subject to work absent the [A]gency's violation of the collective bargaining agreement." Opposition at 4-5. The Union maintains that there is nothing in the FLSA that precludes an arbitrator from awarding compensation at the overtime rate of pay, where otherwise warranted, to remedy a contract violation.

      The Union also submits that under the Back Pay Act, an award of back pay is specifically authorized where an arbitrator finds that: (1) aggrieved employees were affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievants' pay allowances or differentials, and (3) but for the personnel action the aggrieved employees would not have suffered the withdrawal or reduction. According to the Union, each of those standards has been met in this case. Therefore, the Arbitrator's remedy "was nothing more than an award of back pay designed to make whole those persons affected by the contract violation." Id. at 6.

      Lastly, the Union challenges the Agency's contention that the award would restore an illegal past practice. According to the Union, the Agency has failed to "point to any factual basis for its claim" and submits that "there is no evidence that the practice was unlawful." Id.

IV.     Analysis and Conclusions

A.     The Award is Contrary to the Regulations Implementing the FLSA in the Federal Sector

      The Authority reviews questions of law raised by a party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      To remedy the contract violation found in this case, the Arbitrator ordered the Agency to reinstate the 20-minute paid, on-the-job lunch periods and to compensate the grievants at the appropriate overtime rate for the additional time they were required to work beyond their eight-hour workday. The Agency claims that this remedy is contrary to the FLSA and its implementing regulations because it would require the payment of overtime for periods during which the grievants did not work. The Union disputes the Agency's claim and contends that the award is, nevertheless, consistent with the Back Pay Act. We conclude, for the reasons that follow, that the award is contrary to 5 C.F.R. §§ 551.104 and [ v56 p437 ] 551.411(c), which implement the FLSA in the Federal sector, and to the Back Pay Act.

1.     The FLSA

      It is well-settled that under the FLSA time set aside for eating is not work for purposes of compensation unless it involves activities "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer[.]" Fort Rucker, 53 FLRA at 621 (citing Armour & Co. v. Wantock, 323 U.S. 126, 132 (1944)). Under Office of Personnel Management regulations, as set forth in 5 C.F.R. § 551.104, only specifically defined "hours of work" are "creditable for the purpose of determining overtime pay." [n2]  Pursuant to this provision and, as relevant here, a "[b]ona fide meal period shall not be considered hours of work." 5 C.F.R. § 551.411(c). Although "bona fide meal periods" are not defined in 5 C.F.R. part 551, they are defined in 29 C.F.R. part 785, which implements the FLSA in the private sector. Fort Rucker, 53 FLRA at 621 n.5. Under that authority "bona fide meal periods" must be at least 30-minutes in length and the employee must be completely relieved from duty for the purpose of eating.

      In this case, it is undisputed that after the Agency unilaterally eliminated the 20-minute paid lunch periods, it replaced them with 30-minute unpaid lunch periods during which the grievants were not required to work. Therefore, as the Arbitrator ordered that the grievants be compensated for hours of work that included bona fide meal periods, we find that the award is contrary to 5 C.F.R. §§ 551.104 and 551.411(c), which implement the FLSA in the Federal sector. See generally U.S. Department of Transportation, Federal Aviation Administration, Chicago, Illinois and National Air Traffic Controllers Association, 41 FLRA 1441, 1450-51 (1991) (bona fide meal periods were not compensable where actual interruptions for job-related duties were rare, despite "on-call" status of the employees); American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Services, Social Security Administration, 25 FLRA 600, 601-03 (1987) (bona fide meal periods are not compensable under the FLSA unless the employee performs substantial job-related duties).

2.     The Back Pay Act

      Under the Back Pay Act an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210 (1998). With regard to the first requirement, it is well established that a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See, e.g., International Association of Machinists and Aerospace Workers, Lodge 2261 and American Federation of Government Employees, Local 2185 and U.S. Department of the Army, Tooele Army Depot, Tooele, Utah, 47 FLRA 427, 435 (1993). As discussed above, the Arbitrator found that the Agency violated the parties' bargaining agreement by unilaterally eliminating the 20-minute paid, on-the-job lunch breaks. As the Agency does not dispute this aspect of the award, we conclude that it satisfies the first requirement of the Back Pay Act.

      With regard to the second requirement for back pay awards, the Arbitrator found that by eliminating the 20-minute paid lunch breaks, the grievants were required to remain at work for a longer period of time than they normally would have remained had the Agency not violated the parties' bargaining agreement. More specifically, the Arbitrator found that "[t]he extra time the [grievants] were required to remain at their work stations in order to complete their regular workday is overtime which the [grievants] were required to work by the [Agency's] violation of the [agreement]." Award at 24. [n3]  Therefore, the Arbitrator effectively found that "but for" the Agency's unwarranted and unjustified personnel action, the grievants would have been entitled to overtime pay. We disagree with the Arbitrator's finding.

      The Authority has long held that to satisfy the second requirement of the Back Pay Act, evidence of a causal connection between a violation of the parties' collective bargaining agreement and a withdrawal or reduction in pay, allowances or differentials must be established. See U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 340-41 (1991). That is, an [ v56 p438 ] award of back pay is available only where it is clear that the violation of the parties' collective bargaining agreement resulted in the loss of some pay. See id. at 340.

      In this case, the evidence shows that prior to the unilateral elimination of the 20-minute lunch breaks, the grievants worked, and were compensated for, an eight-hour workday, which included a 20-minute paid, on-the-job lunch. The evidence further shows that after these lunch periods were eliminated and the grievants were required to take longer, unpaid lunch periods, the grievants continued to be compensated for an eight-hour workday. As the grievants did not suffer any loss of pay, it is apparent that there is no causal connection between the Agency's violation of the parties' bargaining agreement and a monetary loss. Because the requirements of the Back Pay Act have not been met, we find that the portion of the award directing the payment of overtime must be set aside. See, e.g., U.S. Department of Veterans Affairs, Medical Center, Kansas City, Missouri and American Federation of Government Employees, Local 2663, 51 FLRA 762, 767 (1996) (award ordering that grievants be paid overtime set aside because there was no causal connection between the violation and any monetary loss).

B.     The Award Does Not Order the Reinstatement of an Illegal Past Practice

      As a second ground, the Agency contends that the award is deficient because it orders the reinstatement of an illegal past practice. In support of this position, the Agency asserts that "the general rule is that time set aside for eating is not work for purposes of compensation unless employees are regularly required to perform substantial labor during those meal periods." Exceptions at 7. According to the Agency, if the grievants were not being required to perform substantial labor during the "former twenty-minute paid, in-place lunch period, the past practice of compensating them for this lunch period was illegal and the Arbitrator cannot order the [Agency] to return to this past practice." Id.

      In assessing whether the Agency violated Article 25, section 2(d)(2) of the parties' bargaining agreement, the Arbitrator found that when the parties had initially negotiated over the 20-minute, in-place, lunch periods, the Agency had not alleged that the lunch periods violated any law, rule, or regulation. The Arbitrator also found that when the Agency subsequently eliminated them, it relied upon an Air Force regulation. However, the Arbitrator determined that the Air Force regulation did not prohibit the paid, in-place lunches and rejected the Agency's claim that the grievants were not required to remain on-the-job during lunch. The Arbitrator reasoned that it was the Agency's responsibility to ensure that employees remain at their work stations during their paid, in-place lunch periods. Nevertheless, the Arbitrator found that the Agency had not made any effort to regulate this practice. In these circumstances, the Arbitrator concluded:

If [the Agency] wishes to change the circumstance [20 minute, in-place lunch periods], then it must demonstrate clearly and unequivocally that the present in-place, twenty-minute lunch periods it wants to eliminate violate the law or 5 CFR. It cannot establish that by asserting the employees who work in those positions do not need to remain at their work station during lunch.

Award at 23. We agree with the Arbitrator's conclusion. The mere fact that in the past certain employees may have left their work stations during a paid, in-place lunch is not sufficient to establish that the past practice itself is illegal. Rather, the departure of employees during the in-place lunch break is a violation of the past practice and should be stopped through an Agency directive mandating that employees continue to work through lunch.

      The Agency does not claim that the paid, in-place lunch periods are illegal on any other basis and none is apparent to us. Accordingly, we reject the Agency's claim that the award requires the reinstatement of an illegal past practice. [n4] 

V.     Decision

      The portion of the award ordering the Agency to provide overtime pay for affected employees is set aside. The award is remanded to the parties for resubmission to the Arbitrator, absent settlement, to determine an appropriate remedy, if any, for the lengthened work day caused by the improper cessation of the 20-minute paid lunch breaks. The Agency's remaining exception is denied.



Footnote # 1 for 56 FLRA No. 64

   Article 25, section 2(d) provides:

2(d). Lunch/Meal Breaks
(2) When circumstances justify, the Employer may authorize or continue a paid, on-the-job lunch of up to twenty minutes. When such lunch is authorized, the employees shall spend their on-the-job lunch at or near their workstations. Any twenty (20) minute lunch b