National Association of Agricultural Employees, Branch 11 (Union) and U.S. Department of Agriculture, Animal Plant Health Inspection Services, Plant Protection Quarantine, Honolulu International Airport, Honolulu, Hawaii (Agency) and National Association of Agricultural Employees, Branch 17 (Union) and U.S. Department of Agriculture, Animal Plant Health Inspection Services, Chicago, Illinois (Agency) and National Association of Agricultural Employees, Branch 7 (Union) and U.S. Department of Agriculture, Animal Plant Health Inspection Services, Plant Protection Quarantine, Philadelphia, Pennsylvania (Agency)

[ v57 p424 ]

57 FLRA No. 76

NATIONAL ASSOCIATION OF AGRICULTURAL
EMPLOYEES, BRANCH 11
(Union)

and

U.S. DEPARTMENT OF AGRICULTURE
ANIMAL PLANT HEALTH INSPECTION
SERVICES, PLANT PROTECTION QUARANTINE
HONOLULU INTERNATIONAL AIRPORT
HONOLULU, HAWAII
(Agency)

0-NG-2576

and

NATIONAL ASSOCIATION OF AGRICULTURAL
EMPLOYEES, BRANCH 17
(Union)

and

U.S. DEPARTMENT OF AGRICULTURE
ANIMAL PLANT HEALTH INSPECTION
SERVICES, CHICAGO, ILLINOIS
(Agency)

0-NG-2588

and

NATIONAL ASSOCIATION OF AGRICULTURAL
EMPLOYEES, BRANCH 7
(Union)

and

U.S. DEPARTMENT OF AGRICULTURE
ANIMAL PLANT HEALTH INSPECTION
SERVICES, PLANT PROTECTION QUARANTINE
PHILADELPHIA, PENNSYLVANIA
(Agency)

0-NG-2590

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

July 23, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      These cases are before the Authority on negotiability appeals filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeals involve the negotiability of proposals concerning the Agency's decision to change employees' work schedules to include a 30-minute unpaid lunch. The Agency filed statements of position in all three cases, following which the Union filed replies, and the Agency filed responses.

      For the reasons that follow, we find that the proposals at issue in Case No. 0-NG-2576 (Hawaii case) and Case No. 0-NG-2588 (Chicago case), and Proposal 1 in 0-NG-2590 (Philadelphia case) are negotiable at the election of the Agency. In addition, we find that Proposals 2 and 3 in the Philadelphia case are outside the duty to bargain, and accordingly, dismiss the petition with respect to those proposals.

II.     Consolidation of Cases

      The petitions for review in all three cases involve the same nationwide Union and same Agency. Each appeal involves a proposal (hereinafter "status quo proposals"), which the parties agree has an identical meaning and operation, and presents substantially similar negotiability issues. [n2]  Additionally, the parties agree that it is appropriate for the Authority to consolidate the cases. Accordingly, we have consolidated the cases for consideration. See NAGE, Local R4-45, 54 FLRA 218 (1998).

III.     The Status Quo Proposals

      The proposals are set forth in the Appendix to this decision.

A.     Meaning of the Status Quo Proposals

      The parties agree that the proposals would require the Agency to schedule employees to a tour of duty without an unpaid lunch period. Hawaii Post-Petition Conference Record at 2 (Hawaii Record); Chicago Post-Petition Conference Record at 2 (Chicago Record); Philadelphia Post-Petition Conference Record at 2 (Philadelphia Record). [ v57 p425 ]

B.     Positions of the Parties

1.     Agency  [n3] 

      First, in all three cases the Agency asserts that the status quo proposals are inconsistent with 5 U.S.C. chpt. 61, because it would "allow employees to engage in activity that is not considered `work' by eating their meal during paid time, thus resulting in the employees working less than a 40 hour workweek." [n4]  Hawaii Statement of Position at 2. Second, in all three cases the Agency asserts that the status quo proposals are inconsistent with management's right to assign work under § 7106(a)(2)(B) of the Statute because changing the starting and quitting time of work to include a 30-minute meal period effects the Agency's right to determine when work assignments will occur. The Agency also asserts that the status quo proposals are not negotiable under §§ 7106(b)(1), (2), or (3).

      In the Hawaii case only, the Agency makes the additional arguments that the status quo proposal is expressly covered by Article IV of the parties' national collective bargaining agreement and the APHIS Directive, and that the duty to bargain over the substance of its decision to establish tours of duty with unpaid lunch periods exists only at the national level.

2.     Union

      In all three cases, the Union asserts that the status quo proposals are not inconsistent with 5 U.S.C. § 6101, because employees who eat lunch while on duty are not working less than a 40-hour work week. The Union also asserts, relying on AFGE, Local 1940, 37 FLRA 1058 (1990) (Plum Island), that the status quo proposals do not interfere with management's rights. Alternatively, the Union argues that, if the status quo proposals interfere with management's right, then they are negotiable under § 7106(b)(1) of the Statute, and that the Agency has elected to bargain over § 7106(b)(1) subjects. See Hawaii Response, Appendix D.

      Additionally, the Union asserts in all three cases, that the "covered by" doctrine precludes the Agency from implementing unpaid lunch periods, because unpaid lunch periods is a subject expressly covered by the national and a local agreement. The Union requests a hearing "to explain the current local conditions which resulted in the current exemptions from unpaid meal breaks and the local negotiating history that led to the exemptions." Hawaii Petition at 5; Chicago Petition at 5; Philadelphia Petition at 5. In the Hawaii case, in response to the Agency's claim that the proposal may only be negotiated at the national level, the Union argues that there has been a clear delegation of bargaining authority over unpaid lunch periods in the national agreement.

C.     Analysis and Conclusions

1.     The status quo proposals are not inconsistent with 5 U.S.C. § 6101

      5 U.S.C. § 6101(a)(2)(A) requires the head of each Executive agency to "establish a basic administrative workweek of 40 hours for each full-time employee in his organization." Contrary to the Agency's arguments, nothing in either § 6101 or its implementing regulations prohibits agencies from paying employees who eat while they work. Instead, as relevant here, employers are prohibited only from considering a bona fide meal period to be hours of work. 5 C.F.R. 551.411(c). Under this regulation, employees are not paid if they are totally relieved of duty for the purpose of eating. AFGE, Local 1815, 53 FLRA 606, 621 (1997); AFGE, Local 3231, 25 FLRA 600, 602 (1987). See also United States Dep't of the Air Force, Travis Air Force Base, Cal., 56 FLRA 434, 437-38 (2000) (Dep't of the Air Force).

      In addition, contrary to the Agency's assertions, nothing in the proposals would require the Agency to pay employees for bona fide meal periods. Indeed, the proposals seek just the opposite: to prevent the Agency from establishing bona fide meal periods. We note, in this connection, that the proposals provide that employees will be scheduled to a tour of duty without an unpaid lunch in accordance with APHIS Directive 402.1, which specifically prohibits employees from leaving the immediate vicinity of their duty stations. [n5]  Moreover, the fact that, according to the Agency, some employees leave their works stations to eat does not dictate that the proposals are contrary to law, as nothing would prohibit the Agency from implementing the proposals consistent with law and regulation. See Dep't of the Air Force, 56 FLRA at 438 (despite fact that some employees left their workstation during a 20-minute paid duty-time lunch period, award reinstating that period was not [ v57 p426 ] inconsistent with § 6101(a)(2)(A) because the agency could enforce the requirement that employees remain on-the-job while eating).

      Based on the foregoing, we conclude that the status quo proposals are not inconsistent with 5 U.S.C. § 6101.

2.     The status quo proposals affect management's right to assign work under § 7106(a)(2)(B) of the Statute

      In AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171 (1998), the Authority described the sequence of analysis it will follow in resolving negotiability disputes where parties disagree as to whether a proposal comes within the terms of § 7106(a) or § 7106(b). Where an agency claims that a proposal affects a management right or rights under § 7106(a), and a union claims that the proposal is within the duty to bargain under § 7106(b)(2) and/or (3), as well as being electively negotiable under section 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain, and then, if necessary, address those claims that would determine if a proposal is electively negotiable. See NAGE, Local R1-109, 54 FLRA 521, 526-28 (1998). Consistent with this sequence, we first consider whether the status quo proposals come within the terms of § 7106(a).

      Management's right to assign work under § 7106(a)(2)(B) of the Statute reserves to management officials the authority to determine the particular duties to be assigned, when assigned work will be performed, and to whom or what positions duties will be assigned. Nat'l Weather Serv. Employees Org., 37 FLRA 392, 399-400 (1990). The decision to change the starting and quitting times of a shift constitutes an exercise of an agency's right to assign work. See United States DOJ, Fed Bur. of Prisons, Mgmt. and Specialty Trng. Ctr., Aurora, Colo., 56 FLRA 943, 944 (2000) (Bur. of Prisons).

      The status quo proposals would restrict the Agency's ability to change employees' hours of work by requiring the Agency to schedule shifts that do not include an unpaid lunch period. Applying the foregoing precedent here, the proposals affect the Agency's right to assign work. In this regard, the Union's reliance on Plum Island, 37 FLRA 1058, for its assertion to the contrary is misplaced. In Plum Island, the agency did not assert that, and the Authority did not address whether, the proposal concerning the length of an unpaid lunch period affected the agency's right to assign work. Accordingly, because the status quo proposals would prohibit the Agency from changing employees' hours of work to include an unpaid lunch period, we conclude that the proposals affect management's right to assign work. See Bur. of Prisons, 56 FLRA at 944.

3.     The status quo proposals concern a § 7106(b)(1) matter

      As relevant here, § 7106(b)(1) provides that an agency may elect to negotiate on the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty[.]" In determining whether a proposal is within the scope of 7106(b)(1), the Authority assesses whether the proposal concerns: (1) the numbers, types, and grades; (2) of employees or positions; (3) assigned to any organizational subdivision, work project, or tour of duty. NAGE, Local R5-184, 51 FLRA 386, 394 (1995) (NAGE).

      The phrase "numbers, types, and grades" applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. ACT, Schenectady Chpt., 55 FLRA 925, 927-28 (1999). The Authority has held that a proposal regarding the establishment of staffing patterns or allocation of staff concerns the "numbers" of employees within the meaning of § 7106(b)(1) "regardless of whether the proposal would increase, decrease, or maintain the number that the agency proposes to assign or has assigned." NAGE, Local R5-184, 52 FLRA 1024, 1034-35 (1997). The Authority has defined the phrase "tour of duty" as the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek. NAGE, 51 FLRA at 397.

      The status quo proposals require the Agency to schedule employees to a particular tour of duty: a workday that does not include a 30-minute unpaid lunch period. The Authority has found provisions establishing tours of duty to be bargainable at an agency's election under § 7106(b)(1) of the Statute. See, e.g., Bur. of Prisons, 56 FLRA at 945 (holding that a provision requiring the standard work day to consist of 8 hours with an additional 30-minute lunch period was negotiated pursuant to § 7106(b)(1)); [n6]  Dep't of the Air Force, Scott Air Force Base, Ill., 33 FLRA 532, 541-43 (1988) (holding that a change in employees' starting and quitting times is a change in their tours of duty), aff'd, 893 F.2d 380 (D.C. Cir. 1990). [ v57 p427 ]

      Because the status quo proposals prescribe the number of employees to be assigned to a tour of duty, we conclude that they concern a § 7106(b)(1) matter and are negotiable at the Agency's election. [n7] 

4.     The parties' bargaining obligation disputes do not provide a basis for finding the proposals outside the duty to bargain

      Two types of disputes may be raised in negotiability proceedings: negotiability disputes, which involve a disagreement between the parties "concerning the legality of a proposal," and bargaining obligation disputes, which involve a disagreement concerning "whether . . . the parties are obligated to bargain over a proposal that otherwise may be negotiable." 5 C.F.R. §§ 2424.2(a), (c). In addition to the negotiability arguments addressed above, the Union and Agency have made the following bargaining obligation arguments.

a.     The alleged requirement to bargain over § 7106(b)(1) matters

      Relying on an August 1996 letter from the Agency's Assistant Secretary for Administration, the Union contends that the Agency has elected to bargain over permissive subjects and that the election should be enforced through a bargaining order. See Hawaii Response, Appendix D. The Union's claim, however, is without merit. In AFGE, Local 3529, 57 FLRA 172, 176 (2001) (Member Wasserman dissenting in relevant part), the Authority held -- relying on 5 C.F.R. § 2424.30 -- that the bargaining obligation disputes that are appropriately resolved in a negotiability proceeding are limited to those concerning an obligation to bargain under the Statute. Because the Union's claim is that the Agency is obligated to bargain under an internal instruction, it does not involve the Agency's obligation to bargain under the Statute. Accordingly, whether or not the August 1996 letter constitutes an election by the Agency, there is no basis for addressing the Union's claim. See id. at 176. See also 5 C.F.R. § 2424.40(b).

      b.     The "covered by" arguments

      In AFGE, Local 225, 56 FLRA 686, 689 (2000), the Authority clarified that the "covered by" doctrine applies where a party asserts that it is not obligated to bargain over a particular subject matter because that subject matter is "covered by" an agreement. Id. (citing United States Dep't of Health and Human Serv., SSA, Balt. Md., 47 FLRA 1004 (1993)). Specifically, the "covered by" doctrine is a defense that relieves a party of an obligation to bargain -- the doctrine does not operate to require a party to bargain.

      As applied here, the Union's argument that the Agency is precluded from implementing unpaid lunch periods because that issue is "covered by" the terms of the parties' agreements is misplaced. The Union is not asserting that the parties' agreements relieve it from an obligation to bargain. Rather, the Union argues that the agreements require the Agency to maintain the status quo and prohibit it from implementing unpaid lunch periods. We note in this regard that, if the Union is correct, then implementation of a 30-minute unpaid lunch period may violate the parties' agreements. We also note, however, that if the Union were permitted to use the "covered by" doctrine to require the Agency to maintain the status quo in this case, then the arbitration or ULP process would effectively be circumvented. Accordingly, the Union's claim does not provide a basis for finding that the Agency has an obligation to bargain over the proposals, and we reject it on that basis. Id.

      With regard to the Agency's argument in the Hawaii case, that it is not required to bargain over the proposal because it is "covered by" the parties' agreement, the proposal concerns a § 7106(b)(1) matter, which is negotiable at the Agency's election. As set forth in AFGE, Local 3529, 57 FLRA at 176, the Authority will resolve only those issues necessary to determine whether the Agency has a statutory obligation to bargain. Applying that principle here, there is no basis for determining whether the proposal is covered by the parties' agreement because whether or not it is, there is no statutory obligation to bargain over it. See 5 C.F.R. § 2424.40(b) (where the Authority finds a proposal bargainable only at the election of the agency, the Authority will "so state"). Accordingly, we do not address the Agency's claim in the Hawaii case that the proposal is "covered by" the parties' agreement. [ v57 p428 ]

c.     The appropriate level of bargaining

      The Agency also argues that it is not required to bargain over the proposal in the Hawaii case, because the proposal is bargainable only at the national level. As with the Agency's "covered by" claim, there is no basis for determining at what level the proposal is properly negotiated because the Agency does not have a statutory obligation to bargain over the proposal. Again, even if the Authority were to reject the Agency's argument, the Authority would not order the Agency to bargain over the proposal. See 5 C.F.R. § 2424.40(b). Accordingly, we do not address the Agency's claim in the Hawaii case that the proposal is not negotiable at the local level. [n8] 

IV.     Proposals 2 and 3 in the Philadelphia Case

Proposal 2: If Branch 7's proposal number one above is rejected or an unpaid meal break is mandated for other reasons, the effective date of unpaid meal breaks upon personnel at Philadelphia International Airport shall be postponed until the completion of the new airport terminal at which time the parties shall meet and reassess whether changed circumstances warrant continuation of the exemption from unpaid meal breaks pursuant to the terms of APHIS Directive 402.1.
Proposal 3: In the event a policy of unpaid meal breaks is implemented at Philadelphia International Airport, this policy shall not apply to scheduled shifts during Sundays, holidays, or overtime.

A.     Meaning of Proposals 2 and 3

      The parties agree that Proposal 2 would require the Agency to: (1) maintain the status quo with regard to unpaid meal periods until construction of the new airport terminal at Philadelphia Airport is completed; and (2) upon completion of the new terminal, negotiate with the Union over whether PPQ Officers meet the criteria set forth in APHIS Directive 402.1. Philadelphia Record at 2. The parties further agree that Proposal 3 would prohibit the Agency from implementing unpaid meal periods for PPQ Officers' during shifts occurring on Sundays or holidays, or that are scheduled as overtime. Id.

B.     Positions of the Parties

1.     Agency

      The Agency argues that Proposals 2 and 3 are inconsistent with 5 U.S.C. § 6101 and 5 C.F.R. § 551.411(c) because they require the Agency to allow employees to eat during paid time, thus resulting in the employees working less than a 40 hour workweek. See Philadelphia Statement of Position at 5-6. The Agency also argues that the proposals are inconsistent with management's right to assign work under § 7106(a)(2)(B) of the Statute because management would be precluded from assigning any duties to employees while they are eating.

2.     Union

      The Union does not address the Agency's claims regarding the negotiability of Proposals 2 and 3.

C.     Proposals 2 and 3 affect management's right to assign work under § 7106(a)(2)(B) and are not inconsistent with 5 U.S.C. § 6101

      As with the status quo proposals, the parties do not dispute that, under Proposals 2 and 3, the Agency would not be required to designate any time for employees to eat or that employees would be relieved from duty during the time they would be eating. Accordingly, because the Agency would not be required under the proposals to designate any duty-free time for which employees would be compensated for the purpose of eating, there is no basis for finding Proposal 2 or 3 inconsistent with 5 U.S.C. § 6101. Dep't of the Air Force, 56 FLRA at 438; AFGE, Local 3231, 25 FLRA 600. Also as with the status quo proposals, Proposals 2 and 3 would restrict the Agency's ability to change employees' hours of work -- albeit for different time periods than involved in the status quo proposals. Because Proposals 2 and 3 would prohibit the Agency from changing employees' hours of work to include an unpaid lunch period, they affect management's right to assign work under § 7106(a)(2)(B). Bur. of Prisons, 56 FLRA at 944.

      The Union states in its Response that Proposals 2 and 3 "are fall-back positions that incorporate some elements of the princip[le] status quo proposal." Philadelphia Response at 7 n.1. However, unlike the status quo proposals, the Union does not expressly assert that Proposals 2 and 3 are bargainable under § 7106(b)(1), or any other exception to management's right to assign work. Moreover, nothing in the record supports a conclusion that the Union intends to raise, as to Proposals 2 and 3, all the arguments it expressly raised as to the status quo proposals. Accordingly, as Proposals 2 and 3 [ v57 p429 ] affect management's right to assign work, we find that they are outside the Agency's duty to bargain.

V.     Order

      The status quo proposals in the Hawaii, Chicago and Philadelphia cases are negotiable at the Agency's election. The petition for review in the Philadelphia case is dismissed with regard to Proposals 2 and 3.


APPENDIX

The proposal in the Hawaii case provides:

All bargaining unit employees working D, DD, ED, DOG, and DOG1 shifts at the Port of Honolulu shall continue to work an eight hour standard tour(s) of duty without an unpaid meal break in accordance with the contract and APHIS Directive 402.1, incorporated by reference in Article XV Section 1 of the National Collective Bargaining Agreement.[ [n9] ]

The proposal in the Chicago case provides:

All bargaining unit employees working afternoon/evening shifts at the airport shall continue to work an eight hour standard tour of duty without an unpaid meal break in accordance with the contract and APHIS Directive 402.1, incorporated by reference in Art. XV Section 1 of the National Collective Bargaining Agreement.

The proposal in the Philadelphia case provides:

Proposal 1: The tours of duty of PPQ Officer personnel working at Philadelphia International Airport shall continue unchanged, that is, they shall continue to work their current shifts without a mandatory unpaid meal break, exempt from any mandatory meal-break policy under the provisions of APHIS Directive 402.1, incorporated by reference in the Union's National Collective Bargaining Agreement.



Footnote # 1 for 57 FLRA No. 76

   Member Armendariz did not participate in this decision.


Footnote # 2 for 57 FLRA No. 76

   In the Philadelphia case, the Union has presented two additional alternative proposals (hereinafter "Proposals 2 and 3") in the event that the status quo proposal is found to be outside the duty to bargain.


Footnote # 3 for 57 FLRA No. 76

   The Agency's response in the Chicago case and Philadelphia case were not timely filed. Accordingly, neither response has been considered in this decision.


Footnote # 4 for 57 FLRA No. 76

   5 U.S.C. § 6101(a)(2)(A) provides that the head of each Executive agency shall "establish a basic administrative workweek of 40 hours for each full-time employee in his organization."


Footnote # 5 for 57 FLRA No. 76

   APHIS Directive 402.1 provides that "[w]hen a lunch period is not included in the tour of duty, the employee may not leave the immediate vicinity of his/her duty post." Hawaii Statement of Position, Enclosure 1 at 2.


Footnote # 6 for 57 FLRA No. 76

   We note that, in Plum Island, the Authority found that a proposal to shorten the length of lunch periods did not concern a 7106(b)(1) matter because it did not affect the agency's right to establish employees' overall tours of duty. In light of the Authority's decision in Bur. of Prisons, it is questionable whether Plum Island continues to be viable on this point. In any event, however, Plum Island is distinguishable because, unlike the proposal in Plum Island, the status quo proposals in this case directly determine affected employees' tours of duty.


Footnote # 7 for 57 FLRA No. 76

   The Union asserts, without explanation, that "the obligation to maintain the status quo pursuant to extant national and local agreement is enforceable against the Agency as an arrangement." Hawaii Response at 7 n.1; Chicago Response at 7 n.1; Philadelphia Response at 10 n.2. Insofar as these assertions could be read as claims that the proposals are negotiable under § 7106(b)(3), we find that they are bare assertions and reject them on that basis. AFGE, Local 1858, 56 FLRA 1115, 1116 (2001).


Footnote # 8 for 57 FLRA No. 76

   In addition, we deny the Union's request for a hearing to resolve the parties' bargaining obligation claims because the factual issues the Union asserts require a hearing do not need to be resolved. In this regard, as explained above, those issues would not affect the bargaining order in this case.


Footnote # 9 for 57 FLRA No. 76

   Article XV, Section 1 of the parties' existing national agreement provides that "[t]ours of duty without lunch periods shall be established according to APHIS Directive 402.1." APHIS Directive 402.1 provides, in pertinent part:

     b.     Tours of Duty Without Lunch Periods are established only in unusual circumstances. Typical conditions which could warrant the establishment of such tours are:
          (1)     Work . . . requires the full time and continuing attention of the employee who is alone and is not permitted to leave his/her post of duty for the purpose of obtaining and/or eating lunch.
          (2)     Inspection services must be maintained on a continuing basis and only one employee is assigned to the duty post during each tour of duty. . . .
          (3)     At land border crossings or at airports, when the flow of traffic is such that the high and low periods vary significantly from day to day and cannot be anticipated with any degree of accuracy. . . .
When a lunch period is scheduled, the employee may leave his/her place of employment for the established period of time. When a lunch period is not included in the tour o